QJorn^U ICavu i>rl|00l ICibtaty Cornell University Library KF 590.T56 V.I The law of landlord and tenant, by Herber 3 1924 018 801 138 |l Cornell University J Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018801138 THE LAW OF Landlord and Tenant BY HERBERT THORNDIKE TIFFANY AUTHOR OT "THE LAW OF REAt PROPEHTYi" LECTURER ON REAL PROPERTY IN THE UNIVERSITY OP MARYLAND IN TWO VOLUMES Vol. I ST. PAUL TOE KEEFE-DAViDSOSN CO. rtjiD COPYRIGHT, 1910 BY HERBERT THOBNDIKE TIFFANY WEBB FUBI/lSHiNO OO. PRBBS; ST. PAUI,, MINN. PREFACE. This work represents an attempt not only to state the decisions on the law of Landlord and Tenant, but also to discuss the various phases of the subject from the standpoint of principle. This latter has necessarily involved a frequent expression of my own opinion, and occasional criticism of positions adopted by courts of high standing. I submit my views in no presumptuous spirit, and only hope that their espi;essibn, accompanied by a statement of the grounds on which they are based,>may occasionally be sug- gestive and helpful, even though not convincing. References to the state statutes bearing on the subject wiU be found in the notes. In inserting these references I have, in the case of each state, made use of the latest compilation of statutes to which I had access at the time, and have not attempted to search the volumes of session laws subsequently published. Con- sequently, they do not present the law, as it exists in some juris- dictions, with absolute exactitude. My object in inserting these references is, indeed, not so much to relieve members of the bar of the trouble of investigating the statutes for themselves, as to show the tendencies of legislation, and to give aid in the un- derstanding of decisions which have little or no meaning apart from the enactments on which they are based. H. T. T. Baltimore, Md., February, 1910. TABLE OF CONTENTS CHAPTER I. THE NATURE OF THE RELATION. 1. The doctrine of tenure. 2. "Landlord"' and "tenant." ^2. The possessory rights of the tenant. a. The tenant has the possession. b. Entry by landlord during tenancy. (1) Is ordinarily tortious. (2) Is permissible for certain purposes. (3) Under express stipulations. 4. The tenant's possession is not adverse to the landlord. 5. The tenant is not the landlord's agent. 6. Trespasser distinguished from tenant. 7. Licensee distinguished from tenant. a. The nature of a license. b. Application of the distinction. c. License to take minerals. 8. Lodger distinguished from tenant. 9. Servant distinguished from tenant. 10. "Cropper" distinguished from tenant. CHAPTER II. THE CLASSES OP TENANCIES. § 11. Freehold tenancies. a. Tenancy in fee simple. b. Tenancy for life. 12. Tenancy for years. a. The nature of the tenancy. b. The commencement of the term. (1) May be subsequent to lease. (2) Requirement of certainty. vi TABLE OF CONTENTS. (3) Ascertainment of day of commencement. (a) Commencement on past day. (b) Lease "from the date." (c) Impossible date for commencement. (d) Day of commencement not named. (e) In case of oral demise. (f) Commenicement on termination of prior lease. c. The duration of the term. (1) Statutory restrictions. (2) Requirement of certainty. (a) Lease must show duration. (b) Tenancy expiring only on contingency. (c) Lease for uncertain number of years. (3) Ascertainment of day of expiration. (a) General rule of computation. (b) Effect of custom. (c) Statutory provisions. (d) Inconsistent limitations. (e) Oral evidence. (f) Lease covering separate tracts. d. Contingent expiration — Special limitation. e. Option in the lessor to terminate. (1) Particular stipulations. (2) Theory of operation. (3) In case of sale. (4) Notice to lessee. (5) Compensation to lessee. f. Option in the lessee to teiminate. g. The destruction of the term. (1) General considerations. (2) Merger. (a) The general doctrine. (b) Quantum of the reversionary estate. (c) Estates held in different rights. (d) No merger if estate intervenes. (e) In case of interesse termini. (f) On transfer under judicial process or decree. (g) Effect of contract to convey, (h) Partial merger. (i) Merger as regards third persons. — (3) Surrender. — (4) Forfeiture. — (5) Eviction. (6) Taking under power of eminent domain. (7) Bankruptcy. (8) Destruction of or injury to premises by unforeseen casualty. TABLE OF CONTENTS. vii (9) Untenantable condition of premises. (10) Expiration of the lessor's estate. (11) Destruction of the lessor's estate. (12) War and military occupation. (13) Death. (14) Dissolution of corporation tenant. § 13. Tenancy at will. a. When the tenancy arises. (1) Lease at will of lessee. (2) Lease at will of lessor. (3) Permissive possession. (4) Lease not naming duration of tenancy. (5) Tacit acquiescence in another's possession. (6) Statutory provisions. b. Termination of the tenancy. (1) By the landlord. (2) By the tenant. (3) By death of party. "- (4) By transfer. — (a) By the landlord, (b) By the tenant. (5) By special limitation. (6) Tenant's rights on termination, c. Nature of the tenant's interest. 14. Periodic tenancies. a. General considerations. b. When a periodic tenancy arises. (1) Under express limitation. (2) By inference on general letting. (a) From payment of periodic rent. (b) From reservation of periodic rent. (c) Not from general letting alone. c. Quarterly, monthly, and weekly tenancies. (1) Apart from statute. (2) Under statutes. d. Transfer of interest. e. Mode of termination. , 16. Tenancy at sufferance. a. The common-law conception. b. Modern conceptions. c Bights and liabilities of tenant. CHAPTER in. THE CREATION OF THE RELATION— THE LEASE OR DEMISE. § 16. The nature of a lease or demise. 17. Tenancy "by Implication." 18. Evidence of creation of tke relation , Vlii TABLE OF CONTENTS. § 19. Attornment. a. Double meaning of term. b. Attornment by tenant to stranger. (1) Is usually invalid. (2) Cases excepted in the statutes; (3) Attornment under compulsion. (4) Validity as against tenant. c. Attornment equivalent to acceptance of lease. d. Acts showing attornment. 20. Lease providing for division of crops — Cropping contract distin- guished. 21. The parties to a lease — Personal capacity. a. Married women. (1) As lessors. (a) At common law. (b) In equity. (c) Under statutes. (d) Recovery of rent. (2) As lessees. b. Infants. (1) As lessors. (2) As lessees. c. Persons non compos mentis. (1) As lessors. (2) As lessees. d. Corporations. (1) Power to make or take lease. (2) Effect of ultra vires lease, 22. The parties to a lease — Official capacity. a. Trustees. b. Executors and administrators. (1) In absence of express authority. (2) Express powers. (3) Statutory powers. c. Guardians. (1) Of infants. (2) Of lunatics. d. Receivers. 23. Lease to two or more persons. 24. What may be the subject of a lease. a. Corporeal and incorporeal things. b. Personal chattels. c. Part, of building. 25. Necessity of writing — Statute of frauds. a. The English statute. b. The state staitutes. TABLE OF CONTENTS. IX c. "Leases" within the statutes. d. Short time leases. ,^ e. Sufficiency of yriting. f. Right to assert the statute. g. Effect of noncompliance with the statute. (1) Resulting tenancy at will or periodic tenancy. (2) Effect of stipulations as to terms of holding. (3) Lease not valid for part of term. (4) Lessee's liability for rent or for use and occupation. (5) Part performance. 26. The form and parts of an instrument of lease. a. General considerations. , b. Words of demise. c. Description of premises. (1) Requirement of certainty. (2) Scope and effect. d. Exceptions and reservations. 27. Signing of the instrument. 28. Sealing of the instrument. '29. Attestation of the instrument. 30. Acknowledgment of the instrument. 31. Delivery of the instrument. 32. Acceptance of the instrument. 33. Recording of the instrument. 34. Lease made by agent. a. Agent's power to make lease. b. Form of authorization. c. Ratification. d. Form and execution of lease. 35. Lease made on Sunday. 36. Construction of the instrument. 37. Necessity of entry — Interesse termini. 38. Fraud in creation of the relation. a. Fraud on part of lessee. b. Fraud on part of lessor. 39. Mistake in creation of the relation. 40. Lease for illegal purpose. CHAPTER IV. THE RELATION OF TENANCY IN CONNECTION WITH OTHER RELATION. S 41. General considerations. 42. Trustee and cestui que trust. 43. Vendor and vendee. a. Vendee let into possession. b. Express stipulation for tenancy. X TABLE OP CONTENTS. c. Tenancy on vendee's default. d. Tenant becoming vendee. § 44. Grantor and grantee. 45. Mortgagor and mortgagee. a. Mortgagor in possession as tenant. b. Mortgagee in possession as tenant. c. Attornment clause. d. Mortgage relation not exclusive of tenancy. 46. Purchaser at execution sale and former owner of land. 47. Purchaser at foreclosure sale and former owner of land. 48. Master and servant. CHAPTER V. COVENANTS AND OTHER CONTRACTS. § 49. General considerations. 50. Express and implied covenants. 51. Dependent and independent covenants. 52. Joint and several covenants. 53. Execution of instrument containing covenant. a. Execution by lessor. b. Execution by lessee. c. Execution in duplicate. 54. Invalidity of lease. 55. Effect of death. a. Of covenantor. b. Of covenantee. 56. Covenants with agent. a. Under seal. b. Not under seal. c. With unauthorized agent. 57. Covenants by agent. a. Under seal. b. Not under seal. ,— 58. Construction of covenants. a. General rules. b. Aider by oral evidence. 59. Discharge of liability. 60. Remedy for breach of covenant. 61. Oral contracts in connection with written lease. CHAPTER VI. EXECUTORY CONTRACT FOR DBASE. § 62. Contract for lease distinguished from lease. 63. Ascertainment of character of transaction. 64. Completeness of agreement. 65. Talcing of possession by proposed lessee. TABLE OP CONTENTS. xiii — c. Persons whose acta may constitute breach. (1) Lessor acting for himself or through others. (2) Persons claiming "under" lessor. (3) Persons claiming under paramount title. (4) Sovereign authority. y^ d. Acts constituting breach. (1) Necessity of eviction. (2) Acts on adjoining premises. (3) Assertion of paramount title. (4) Wrongful acts. (5) Acts prior to lease. (6) Exclusion from possession. (7) Miscellaneous classes of acts. e. Persons entitled to the benefit of the covenant. f. Persons bound by the covenant. g. Damages recoverable for breach. -*■ § 80. Covenant of power to demise. CHAPTER IX. THE LESSOR'S OBLIGATION TO GIVE POSSESSION. 81. Theory of the obligation to give possession. 82. Exclusion by one having paramount title. 83. Exclusion by stranger without right. 84. Exclusion by lessor. 85. Measure of damages. CHAPTER X. PHYSICAL CONDITIONS— REPAIRS AND . IMPROVEMENTS. I. Landlord's OBLio.'i.TioNs Towabds Tenant. A. As to Premises Leased. i 86. Conditions existing at time of demise. a. Ordinarily no obligation. b. Contract as to existing conditions. c. Representations as to conditions. d. Concealed defects or dangers. e. Lease of furnished house or apartment, f. Contract by lessor to improve or put in repair. 87. Conditions arising after demise. a. Ordinarily no obligation. b. Conditions arising before commencement of term. c. Statutory provisions. xiv TABLE OF CONTENTS. d. Contract by landlord to repair or to pay for repairs. (1) Evidence of the contract. (2) Oral contract. (3) Consideration to support the contract. (4) Nature of the contract. (5) Degree and mode of repair. (6) Notice of the need of repairs and diligence in repairing. (7) Making of repairs by tenant. (8) Effect of breach on liability for rent. (9) Damages for breach. (10) Injuries to tenant's person or property on premises. e. Contract by landlord to improve or put in repair. (1) General considerations. (2) Inference from contract to keep in repair. (3) Cohslderation to support the contract. (4) Nature of the contract. (5) Character of improvements or repairs. (6) Time of making improvements or repairs. (7) Waiver of performance. "(8) Making of repairs or improvements by tenant. (9) Effect of breach on liability for rent. (10) Damages for breach. f. Conditions arising from the making of repairs or improvements by landlord. (1) Repairs or Improvements properly made. (2) Repairs or improvements without authority. (3) Negligence of landlord in doing the work. (4) Negligence of independent contractor. — - g. Total or partial destruction of premises. h. Repairs and improvements required by public au- thorities. B. As to Adjoining Parts, Places and Premises. - — ' § 88. Parts of building not open to tenant. '^- 89. Places open to use by tenant. a. Common approaches. b. Places other than approaches. c. No liability apart from negligence. d. Conditions existing at the time of demise. __,^,i«»e. Obligation to light approaches. f. Ice and snow on approaches. g. Negligence of independent contractor. - h. Contributory negligence of tenant. i. Improper user by tenant. j. Places not used in common. TABLE OP CONTENTS. XV |^°*§ 90. Adjoining buildings and grounds. C. As to Appliances. '§ 91. Appliances under landlord's control. '~^ 92. Appliances not under landlord's control. 93. Liabilities apart from negligence. 94. Contributory negligence of tenant. —85. Effect on liability for rent. II. LAiniLORD's Obligations Towards Thied Persons. A. To Persons on Premises Leased. § 96. Conditions existing at time of demise. a. Ordinarily no obligation. b. Concealed defects and dangers. c. Premises of public or quasi public nature. 97. Conditions arising after demise. ~" a. Ordinarily no obligation. b. Negligent acts. c. Contract by lessor to repair. B. To Persons in Places or Using Appliances Under the Landlord's Control. § 98. Persons in places under landlord's control. 99. Persons using appliances under landlord's control. 100. Statutory obligations. C. To Persons Owning or Using Neighboring Property or Highway, i 101. General rule of liability. 102. Theory of liability. 103. Applications of rule. a. Dangerous conditions in highway. b. Fall of building or part thereof. c. Fall of snow or ice. d. Escape of water or fllth. e. Interference with water rights. f. Injuries to other tenants. 104. Liability of transferee of reversion. 105. Effect of renewal of lease. 106. Periodic tenancy. 107. Effect of contract as to condition or repairs. 108. Conditions in connection with property not leased. III. Tenant's Obligations Towards Landlord. § 109. To refrain from waste. a. What acts constitute waste. (1) General considerations. (2) Alteration in character of lana. (3) Diminution in value of land. (4) Removal of earth and minerals. (5) Destruction of trees and timber. (6) Estovers. XVI TABLE OF CONTENTS. (7) Alteration or removal of buildings or other fixtures. (8) Erection of building or other structure. (9) Improper user of building. (10) Equitable waste. (11) Effect of express stipulations. b. Remedies for waste. (1) Action for damages. (2) Injunction against waste. (3) Persons entitled to sue. (4) Persons liable. (5) Time of suit. (6) Measure of damages. (7) Forfeiture. c. Right to the proceeds of waste. § 110. Injuries by third persons. ^.J^ 111. Injury or destruction by fire. . \^ 112. Accidental injuries. • 113. Obligation to repair — Permissive waste. 114. Stipulations against alterations or erections. 115. Contract to put in repair or for specific repairs. 116. Contract to keep in repair. a. Degree and mode of repair. b. Particular causes of injury. c. Parts of premises to be repaired. d. Obligation to rebuild on destruction. e. Conditions precedent. f. Accrual and continuance of liability. g. Specific enforcement of contract, h. Damages for breach. i. Rights and liabilities on assignment. 117. Contract to make alterations or improvements. 118. Contract as to condition at end of term. a. Particular causes of injury. b. Character of condition required. c. Parts of premises-«within contract. d. Accrual of liability. e. Extinction of liability. f. Effect of assignment. g. Measure ot damages. 119. Agricultural land. a. Mode of cultivation. (1) Implied obligation. (2) Express obligation. b. Removal of hay and straw. e. Removal of manure. TABLE OP CONTENTS. XVll IV. Tenant's Obligations Towards Thied Persons. § 120. To persons on the premises. 121. To persons not on the premises. CHAPTER XI. MODE OP UTILIZATION OP PREMISES BY TENANT. 122. In absence of express covenant. 123. Express covenants. a. General considerations. b. Covenant against any trade. c. Covenant against particular trade. d. Covenant against offensive trade. e. Covenant to use premises for specified purpose only. f. Covenant against annoyance or nuisance. g. Covenant as to liquor business. h. Covenant to occupy personally. i. Covenant as to taking supplies from lessor. j. Persons affected by covenant. k. Waiver of covenant. 1. Remedies for breach. 124. User resulting in nuisance. CHAPTER XII. EASEMENTS AND ANALOGOUS RIGHTS. 125. Easements existing at time of lease. 126. Express grant or agreement. 127. "Appurtenances." 128. Implied grant of easement. 129. Reservation of easement. 130. Acquisition or grant by tenant. 131. Restrictive covenants. 132. Rights of access and approach. 133. Light. 134. Water rights. 135. Use of adjoining premises. 136. Furnishing of power. 137. Furnishing of heat. 138. Signs and other advertising devices. CHAPTER XIII. TAXES AND INSURANCE. 139. Taxes usually payable by landlord. 140. Effect of exemption of landlord. 141. Tax on improvements made after demise. 142. Indemnification of tenant paying tax. xviii TABLE OF CONTENTS. § 143. Contract by lessee to pay taxes. a. Language evidencing contract. b. Payment as rent. c. Taxes within the contract. (1) Taxes levied after demise. (2) Tax laws enacted after demise. (3) invalid taxes. (4) Special assessments. (5) Miscellaneous cases. d. Apportionment of tax. e. Effect of exemption. f. Availability of contract to taxing power. g. Transfer of leasehold or reversion, h. Termination of liability. I. Time of payment. j. Accrual of right of action. k. Damages for breach. 144. Water rates. 145. Insurance. a. In absence of contract. ■ b. Contract to insure. CHAPTER XIV. TRANSFER OF THE REVERSION. § 146. Voluntary transfer. a. General considerations. b. Transfer of "lease." c. Execution of conveyance. d. Subsequent lease by landlord. e. Subsequent mortgage by landlord. f. Attornment. 147. Transfer by operation of law. 148. Transferor's rights and liabilities. 149. Transferee's rights and liabilities. a. By reason of privity of estate. b. By reason of privity of contract. (1) Statutory provisions. (2) Covenants which run with the land. (3) Covenants which do not run with the land. (4) Necessity of mention of assigns. (5) Demise of incorporeal thing. (6) Covenants relating to personal chattels. (7) Leases not under seal. (8) Title of lessor. (9) Breaches previous to transfer. (10) Mode of transfer. (11) Transfer of partial Interest. (12) Release by transferor. TABLE OF CONTENTS. xix CHAPTER XV. TRANSFER OF THE LEASEHOLD. 150. Voluntary transfer and transfer by operation of law. 151. Assignment and sublease distinguished."^ 152. Restrictions on assignment and subletting a. Freedom of alienation in absence of restriction. b. Restrictions strictly construed. c. Restrictions applicable only to transfer of legal title. d. Application of restrictions to alienation of part interest. e. Restrictions not applicable to license or lodging agreement. f. Restrictions not applicable to transfer by operation of law. g. Effect of restriction as against executor or administrator, h. Lessor's consent to alienation. i. Restriction as covenant running with the land, j. Effect of breach of stipulation against alienation. (1) Covenants and conditions. (2) Validity of alienation. (3) Waiver of breach. (4) Damages for breach, k. Injunction against breach. 1. The rule in Dumpor's case, m. Stipulation against parting with possession, n. Statutory restrictions. '153. Assignment presumed from possession. 154. Requisites of assignment and of sublease. 155. Assignment by way of mortgage. 156. Contract to assign. 157. Liabilities of assignor. a. To landlord. (1) Based on privity of estate. (2) Based on privity of contract. b. To assignee. 158. Liabilities of assignee, a. To landlord. (1) Based on privity of estate. (2) Based on privity of contract. (a) At common law and by statute. (b) Stipulations not under seal. (c) Breaches of covenant before assignment. (d) Necessity of legal assignment. (e) Assignee's entry unnecessary. (f) Mortgagee of leasehold. (g) Assignee by operation of law. (h) Executor or administrator as assignee. (i) Heirs and legatees. (j) Trustees in bankruptcy. XX TABLE OF CONTENTS. (k) Assignees for creditors. (1) Receivers as assignees, (m) Partial assignment. (n) Reassignment. (aa) Ordinarily terminates liability. (bb) Covenants assumed by assignee. (cc) Transfer of possession. (dd) Breacbes prior to reassignment. b. To assignor. 159. Rights of assignor. 160. Rights of assignee. 161. Liabilities of sublessor. a. To landlord. b. To sublessee. 162. Liabilities of sublessee. 163. Rights of sublessor. 164. Rights of sublessee. CHAPTER XVI. RENT. 165. The nature of rent. 166. Future rent not present debt. 167. Classes of rent. 168. What may be reserved as rent. 169. Payments which are not properly rent. a. Sums payable under lease of Incorporeal thing. b. Sums payable for enjoyment of license. c. Sums payable under bailment of chattels. d. Sums payable under lease but not for use of the land. e. Sums payable for furnishing of power. f. Sums payable on sale of land. g. Cash bonus or premium paid by lessee. h. Taxes paid by lessee. 170. The reservation of rent. 171. Covenants for the payment of rent. a. Express covenants. b. Implied covenants. 172. Time at which rent is due. a. Usually at end of rent period. b. Specification of rent days. c. Ascertainment with reference to calendar year. d. At end of term. e. Rent payable in advance. f. Option as to time of payment. g. AcceleratiOQ of rent. TABLE OF CONTENTS. XXI h. Time of day for payment, i. Crop rent. j. Rent falling due on holiday. § 173. Amount of the rent. a. Must be certain or capable of ascertainment. b. May be fluctuating. c. Construction of reservation as to amount. d. Determination by appraisement. e. Additional or penal rent. f. Change of amount by subsequent agreement. (1) Reduction of rent. (2) Increase of rent. g. Reduction apart from agreement, h. Oral evidence as to amount of rent. 174. Interest on rent. 175. Apportionment as to amount. a. General considerations. b. On severance of reversion. c. On severance of leasehold. d. On partial extinction or suspension of rent. e. In action on covenant for rent. f. Of rent charge. 176. Apportionment as to time. a. Generally not allowable. b. Statutory provisions for apportionment. c. Express stipulations for apportionment. 177. Payment of rent. a. Presumptions. b. Giving note, bill, or bond for amount. c. Payment before rent due. d. Payment to person not entitled. e. Payment by discharge of landlord's obligations. f. Payment in commodities or labor. g. Payment by means of repairs. h. Excusing payment of rent by way of gift. 1. Application of payments on rent. j. Pleading payment. 178. Tender of rent. a. Effect of tender. b. Time of tender. c. Place of tender. d. Person to whom tender to be made. e. Tender in landlord's absence. f. Tender must be unconditional. 179. Recovery of money paid as rent. 180. Persons entitled to the rent. a. Lessors. XXU TABLE OF CONTENTS. b. On transfer of the reversion. (1) Rent ordinarily passes. (2) Effect of partial transfer. (3) Lease of land and chattels. (4) Notice of transfer. (5) Rent already due. (6) Change of title on rent day. c. Severance of rent from reversion. (1) Retention of rent on transfer of reversion. (2) Transfer of rent without reversion. (3) Rights of subsequent transferee of reversion. (4) Rights of transferee of rent notes. d. Mortgagors and mortgagees. e. Purchasers at judicial or execution sale. f. Trustees in bankruptcy. g. On death of person entitled. h. Persons not in privity with lessor. § 181. Persons liable for the rent. f..^ a. Lessees. '— b. Assignees of the leasehold. c. Executors and administrators. . — d. Subtenants. — e. Principals and agents. f. Sureties and guarantors. (1) Nature of contract. (2) Form and validity of contract. (3) Evidence of relation. (4) Expiration of liability. (5) Discharge of liability. (6) Assignment of right of action. (7) Remedies. 182. Defenses available to tenant — Suspension or extinguishment ol rent. ,-— a. Exclusion of lessee from possession. ^ (1) By one having paramount title. ^ (2) By stranger without right. ^ (3) By lessor. "~ b. Failure of lessee to take possession. c. Invalidity of lease. ■-• d. Defect in lessor's title. — e. Eviction of tenant. (1) By landlord. (a) Total eviction. (b) Partial eviction. (2) By paramount title. (a) Total eviction. (b) Partial eviction. TABLE OF CONTENTS. XXIU — t Merger, g. Surrender. h. Abandonment by tenant. i. Release. j. Forfeiture of leasehold Interest, k. Taking under eminent domain. 1. Discharge in bankruptcy. m. Destruction of or injury to premises by unforeseen casualty. (1) Destruction of building on land leased. (2) Destruction of entire premises. (3) Destruction of building before commencement of term. (4) Change of possession after destruction. (5) Flooding or inundation of premises. (6) Express stipulations extinguishing or suspending rent. (a) General considerations. (b) Character of injury. (c) Cause of injury. (d) Effect as terminating tenancy. (e) Reviral of liability for rent. (f) Possession pending restoration. (g) Rent payable in advance. (7) Stipulations as to repair and restoration. (8) Statutes relieving from liability for rent. (a) The provisions of the statutes. (b) Injuries caused by tenant. (c) Extent of relief from rent. ( d ) Exclusion of statute by stipulations of lease. (e) Premises made "untenantable." (f) Relinquishment of possession by tenant. (g) Termination of tenancy, n. Untenantable condition of premises. (1) At common lavs'. (2) Under statutes. (3) Specific conditions. o. Unfitness of premises for particular purpose. p. Lack of repair. q. Making of repairs. r. Breach of covenant or other contract by landlord. (1) Dependent and Independent covenants. (2) Contract to make repairs or improvements. (3) Contract to furnish heat, power, or other facilities. (4) Miscellaneous contracts and covenants, s. War and military occupation. t. Particular stipulations as to rent. XXIV TABLE OP CONTENTS. § 183. Right to payment of rent as against levy under execution. a. Statutory provisions. b. The tenancy. c. The execution or other process. d. Rent due or to become due. e. Goods and chattels levied on. f. Notice to the sheriff. g. The duty and liability of the sheriff. ANALYSIS OF VOLUME TWO. (For detail see volume two.) Chapter XVir. EVICTION. XVIII. SURRENDER. XIX. FORFEITURE OF THE LEASEHOLD. XX. NOTICE TO QUIT. XXI. HOLDING OVER BY TENANT. XXII. STIPULATIONS FOR RENEWAL OR EXTENSION. XXIII. FIXTURES. XXIV. CROPS. XXV. CHATTELS ON THE PREMISES. XXVI. OPTION OF PURCHASE IN TENANT. XXVII. PAYMENT BY LANDLORD FOR TENANT'S IMPROVE- MENTS. XXVIII. SUMMARY PROCEEDINGS. XXIX. ACTIONS FOR RENT. XXX. ACTIONS FOR USE AND OCCUPATION. XXXI. LIENS IN B^AVOR OF THE LANDLORD. XXXII. DISTRESS AND ATTACHMENT. A. Distress. B. Attachment. XXXIII. RIGHTS OF ACTION AGAINST THIRD PERSONS. LANDLORD AND TENANT. CHAPTER I. THE NATURE OF THE RELATION. § 1. The doctrine of tenure. 2. "Landlord" and "tenant." 3. The possessory rights of the tenant. a. The tenant has the possession. b. Entry by landlord during tenancy. (1) Is ordinarily tortious. (2) Is permissible for certain purposes. (3) Under express stipulations. 4. The tenant's possession is not adverse to the landlord. 5. The tenant is not the landlord's agent. 6. Trespasser distinguished from tenant. . 7. Licensee distinguished from tenant. a. The nature of a license. b. Application of the distinction. c. License to take minerals. 8. Lodger distinguished from tenant. 9. Servant distinguished from tenant. 10. "Cropper" distinguished from tenant. § 1. The doctrine of tenure. It wa^ a fundamental principle of the feudal system, as estab- lished in England after the Norman Conquest, that all land in the possession of a subject was held "of'.' the king as having been originally granted by the latter. One who held land under a grant directly from the king was known as a tenant of the king, and such tenant could himself make a grant of the land or of a part thereof to another to be held by the latter of him, the grantor, without affecting the relation already existing be- tween himself and the king. The last grantee, while thus holding L. and Ten. 1. 2 NATURE OF THE RELATION. § 1 of his grantor, could himself grant the land or a part thereof to be held of himself, and such succession of grants could in theory continue indefinitely, each grantee being the tenant of his grantor, his "lord," as holding of and under him. The king himself was known as "the lord paramount," and the last grantee, the lowest in the scale of tenants, who was in actual possession of the land, was known as "the tenant in demesne." Each person in the scale, standing between the king and the tenant in demesne, was lord as regards those below him, and tenant as regards those above him.^ There was said to exist between each lord and the person who held immediately under him a "tenure," and the tenures were classified according to the classes of services which the tenant undertook to render to the lord in return for the grant to him. The term "tenure" is also used, particularly by modern writers, in a purely abstract sense, to describe the relation thus existing between a lord and his tenant, without reference to the particular terms of the hold- ing. By the statute of Quia Empiores,^ passed in the latter part of the thirteenth century, it was provided in effect that there- after no subject should convey his land or tenements to be held of himself in fee, but that the grantee (feoffee) should hold, not of the grantor, but of the same person of whom the grantor had held, the grantee being thus substituted for the grantor as tenant of the grantor's lord. Consequently, all holdings by a tenant in fee simple, of a lord other than the king, existent at the pres- ent day in England, must date from a time anterior to this statute. The statute of Quia Emptores did not apply when the convey- ance was of an estate less than t-hat of the grantor, so that he could be regarded as having an estate in reversion, and such a conveyance, after as before the statute, created a tenure between the grantor and grantee.^ A tenure thus arising as a result of the existence of a reversion in the grantor has been conveniently designated as an "imperfect tenure" as distinguished 1 Pollock & Maitland, Hist. Eng. s 2 Co. Inst. 504 ; Y. B. 22 Edw. 1, Law (2d Ed.) 232 et seq.; Co. Litt. p. 641; Litt. § 132; CTiallis, Real 65a, and Hargrave's note; 2 Blackst. Prop. {2d Ed.) 18; Digby, Hist. Real, Comm. 59. Prop. (4th Ed.) p. 235, note; Gray, 2 Stat. Westminster III. (18 Edw. Perpetuities (2d Ed.) 15. 1, c. 1, A. D. 1290). § 2 THE DOCTRINE OF TENURE. 3 from the "perfect tenure" created before the statute by a con- veyance in fee.* In the case of perfect tenure the rents or services, the obligation of which was assumed by the tenant, were incident to the seigniory, the right of lordship, while in the ease of imperfect tenure the rents or services were regarded as incident to the estate in reversion, or "reversion," as it is commonly called. In this country a perfect tenure may be regarded as existing in some states, estates in fee simple being held of the state as lord, but presumably in most of such states the statute of Quia Emptores is to be regarded as in force, so that no tenure can be created by a conveyance by an individual in fee simple. In Pennsylvania and South Carolina the law is perhaps otherwise, so that one may make a grant of land to another to hold of the grantor in fee simple.^ Since "perfect" tenure as between individuals exists in but few if any jurisdictions in this country, the only character of tenure which is here a subject for practical discussion is that "imper- fect" tenure which exists in the ease of a conveyance by one of an estate less than his own, leaving a reversion in him, and the rights and liabilities arising in connection with such tenure are what constitute the subject of this treatise. As is more fully, stated in another place," such conveyance of an estate less than that of the grantor is known as a "lease" or "demise" and usually, though not necessarily,'^ the person to whom the conveyance is made becomes liable for the payment o1' certain periodical sums, known as rent, as a compensation for the right to use and enjoy the land. § 2. "Landlord" and "tenant." The word ' ' landlord " is by no means a modern term, it having been in use at least as early as the first part of the fifteenth century. * Its use by legal writers seems, however, comparatively * Coke's Copyholder, § 31; Tracts, ogee post, § 16. 48; Leake, Dig. Prop. 42. ■? gee post, § 165. s The subject of tenure in the s Murray's English Dictionary re- United States is admirably discussed fers to a passage in Liber Albus, 192 b in Gray, Perpetuities, §§ 20, 28. As (Rolls' Ed. I, 22), "Le lessour, to tenure in Pennsylvania, see Cad- appelle landlord" (A. D. 1419), and wallader, Ground Rents, c. 1. states that a similar word existed in 4 NATURE OF THE RELATION. § 2 modern,^ and possibly arose from the fact that it is more compre- hensive than the word lessor, as including not only the person who makes the lease but also one to whom the reversion passes from the le.ssor by voluntary act or by operation of law. The use of the word "landlord" is confined to the ease of one having a rever- sionary interest, the word "lord" being still applied in England to one of whom another holds in fee by reason of a conveyance prior to the statute of Quia Emptores. The word "tenant," formerly used only as descriptive of the person who held land of another, came, as the doctrine of the various estates in land was developed, to be used in connection with the terms descriptive of the quantum of these states, as "tenant in fee simple," "in fee tail," "for life," or "for years," often without particular reference to the fact that the holding was under another but rather in the sense of the "holder" or ' ' owner " of a particular interest in the land, and at the present day the term "tenant" is frequently so used. Thus, when the phrase "tenant in fee simple" is employed, it is intended thereby to describe the quantum of the holding rather than to direct attention to the fact that the holding is "of" some person. A "tenant in fee simple" does hold of another in England and in those states in which the existence of "perfect tenure" is recog- nized, the holding being ordinarily of the Crown or of the state as lord paramount, but this fact is of practically no importance at the present day. In those states in which perfect tenure is not recognized, a tenant in fee simple holds of no person, and the word "tenant" can there mean only "holder" or "owner." The expression "tenant" then may, at the present day, be said to be used in two senses. We speak of a "tenant in fee simple," "in fee tail," "for life," or "for years," meaning thereby merely the holder of an interest of that character, without intending Early English. The same work re- arising from leases, as distinct from fers to a passage in Shakespeare's conveyances in fee, to a considera- Richard the Second, act 2, scene 1, tion of the position of the "lessor," "Landlord of England art thou now, the person whio made the lease, not king." Littleton (section 457) speaks of 9 The writer hais not observed any "very lord" and "very tenant," upon: use of the word by Littleton or Coke, which Coke comments: "This is to they confining themselves, in dis- be understood of a lord in fee simple, cussing the rights and liabilities and of a tenant of like estate. The § 2 "LANDLORD" AND "TENANT." 5 to suggest the idea ©f dependence on or holding "of" another. "When, however, we speak of "a tenant," without mention of any estate or interest, or when we use the expression "landlord and tenant, ' ' we have reference, not to the fact that one has an interest of a certain quantum in the land, but to the fact that the holding or possession is by the consent of and in dependence on another, that is, to the fact that the relation of tenure exists, the "imperfect tenure" which may still be created, in spite of the statute of Quia Emptores. One who holds the possession of land is, it is conceived, neces- sarily a tenant thereof, and he is, except in the one case of tenant at sufferance hereafter adverted to,^" tenant in one of the two senses of the word referred to above, and he may be a tenant in both senses. That is, he necessarily has an estate in the land, and he may hold such estate "of" or "under" another. There are unquestionably a number of cases not in harmony with the statement above made, that one in possession of land is always a tenant, ^^ but these, it is submitted, were wrongly decided upon the mistaken view that when one is put in possession of land as a result of a transaction not directly intended to create a ten- ancy he is not a tenant.^^ Though the person in possession of land is always a tenant of the land, one may in one case be a tenant without having pos- session of the land. This occurs when one who is a tenant of the land, whether holding under another or not so holding, grants an estate less than his own. The possession then vests in the grantee, and he is regarded as a tenant under the grantor, but the latter is also a tenant of the land as having an estate in the land, and frequently, likewise, as himself holding by tenure ■word "landlord " is not found in "exclusive possession and control" Termes de la Ley (circ. 1563), the thereof until he could repay hlmiself earliest law dictionary. from the income was not a tenant, 10 See post, § 15a. hut was an agent of the owner. But, 11 See post, §§ 43, 46. properly speaking, an agent does not 12 In Boston El. R. Co. v. Grace & have possession, he holding merely Hyde Co., 50 C. C. A. 239, 112 Fed. 279, in behalf of his principal (post, note it is decided that one who was 170). And one holding land as given a lien on land for improve- agent of another can evidently have ments made thereon by him and the no right to exclude such other. 6 NATURE OF THE RELATION. § 3 under another. In the latter case the tenant holding the lesser estate is frequently referred to as a "subtenant." ^^ The words "tenant" and "lessee" are frequently used by the courts with considerable looseness as if equivalent in meaning. The word "lessee" should, however, be applied only to the person to whom the lease or demise creating the tenancy is originally made, while the word "tenant" is applicable to any person who holds possession under a lease, whether the original lessee or the latter 's assignee. A lessee, provided he has entered under the lease, is necessarily a tenant, but a tenant is not necessarily a lessee, since he may be merely an assignee mediate or immediate of the lessee. Corresponding to the word "tenant" as denoting one holding land is the word "tenancy" as referring to the "holding" of the land. Like the word "tenant," "tenancy" sometimes refers more particularly to the fact that the holding is "of" and in subordination to another, as when we speak of "the relation of tenancy, ' ' and sometimes it refers more particularly to the inter- est of the tenant, as when we speak of a tenancy "in fee simple," "for life," or "for years." § 3. The possessory rights of the tenant. a. The tenant has the possession. As above indicated, one who is the tenant of land under another has the possession of the land, unless he has divested himself of the possession by creating a subtenancy, in which ease, applying the same rule, the subtenant has the possession, i* Possession involves not only the exercise of acts of ownership over the land but also the exclusion of the exercise of such acts by others.i^ That is, possession is necessarily exclusive, the only case in which two or more persons can at the same time be in possession of one piece of land being when they are concurrent owners, that is, eotenants, and in such case there are not two separate possessions but rather a single possession, that is, as 13 See post, § 151. and not of the tenant." This must 1* In Gray v. Kerr Land Ck>. (N. be a mistake. The opinion refers to D. ) 113 N. W. 1034, the oflBclal sylla- the lessee's possession under the hus says that "land which is farmed lease. hy a tenant under a lease from the is Lightwood, Possession of Land, owner is in possession of the owner 14; Pollock & Wright, Possession, 21. I 3 POSSESSORY RIGHTS OF THE TENANT. 7 stated by Blackstone, a "unity of possession. " i" Since then possession is necessarily exclusive, statements that the tenant has possession and that he has "exclusive" possession may be regarded as equivalent. ^'^ Since the tenant has the possession and the right of possession, he and he alone may maintain trespass or its statutory equivalent on account of an unauthorized entry on the land, or ejectment against one wrongfully excluding him from possession. ^^ b. Entry by landlord during tenancy — (1) Is ordinarily tortious. The principle that the tenant has the possession of the land ai)plies as against his landlord as well as against third per- sons, and consequently an unauthorized entry by the landlord renders the latter liable to an action of trespass quare clausum f regit J or its statutory equivalent.^ ^ There is no presumption of an express authority in the landlord to enter, ^° and the law gives him authority to enter for certain exceptional purposes only. 21 16 2 Blackst. Comm. 180, 191. to enter. Ebersol v. Trainor, 81 111. IT See Roads v. Trumpington, L. App. 645. In this case it was de- R. 6 Q. B. 56; Lightbody v. Truel- cided that such person, after plac- sen, 39 Minn. 310, 40 N. W. 67; LJn- ing obstructions on .the leased prem- denbower v. Bentley, 86 Mo. 515; ises, could not hold the landlord State V. Page, 1 Speer Law (S., C.) liable for removing them on the 408, 40 Am. Dec. 608; Pittsburgh, C. ground that he had no right to enter & St. L. R. Co. V. Thornburgh, 98 for the purpoee. Ind. 201; Central Mills Co. v. Hart, The landlord cannot ordinarily 124 Mass. 123; Neal v. Brandon, 70 bring trespass against his tenant, Ark. 79, 66 S. W. 200. the possession being in the latter. 18 See post, chapter XXXIII. Rogers v. Brooks, 99 Ala., 31, 11 So. 19 Schwartz v. McQuaid, 214 111. 357, 753. The rule is different, however, 73 N. E. 582, 105 Am. St. Rep. 112; in the case of a tenancy at will in Dickinson v. Goodspeed, 62 Mass.- case the tenant commits waste. See (8 Cush.) 119; Rees v. Baker, 4 G. post, § 109 b (1), note 759. Greene (Iowa) 461; Bryant v. Spar- 20 Northern Trust Co. v. Palmer, row, 62 Me. 546; Teagarden v. Mc- 171 111. 383, 49 N. E. 553. But see Laughlin, 86 Ind. 476, 44 Am. Rep. Smith v. Kerr, 108 N. Y. 31, 15 N. B. 332; Haywood v. Rogers, 73 N. C. 70, 2 Am. St. Rep. 362, to the effect 320; Barneycastle v. Walker, 92 N. that mere failure by the tenant to C. 198; McGee v. Gibson, 41 Ky. (2 3. object to the landlord's entry to re- Mon.) 353; Williams v. Cleaver, 4 build involves the grant of a license Houst. (Del.) 453; State v. De Bail- to do so. The text book cited in Ion, 113 La. 572, 37 So. 481. this latter case does not appear to But a third person cannot as- sustain the statement, sert that the landlord had no right 21 See post, § 3 b (2). 8 NATURE OF THE RELATION. § 3 The mere entry of the landlord on the premises, not resulting in injury to the tenant, can make him liable in nominal damages only.22 If, however, the unauthorized entry is accompanied by acts of violence or oppression directed against the tenant or his property, or if it results in substantial interference with his enjoyment, he will be entitled to recover substantial damages. Accordingly, the tenant has been regarded as entitled to sub- stantial damages when the landlord removed fences upon the lands, 23 when the landlord removed the roof from the residence on the land, exposing the tenant to the elements and ultimately causing the loss of an eye,^* and likewise M'^hen the landlord entered and by threats prevented the tenant's employees from cutting timber in accordance with the terms of the lease. ^^ The landlord has been held liable for the diminution in the profits of the tenant's business caused by the unauthorized making of repairs by the former,^^ and for a trespass caused by animals belonging to him. ^^ He has been made liable in punitive dam- ages, for breaking open an out house on the premises in order to get his goods, ^s The landlord having no right himself to enter on the premises, he can obviously give a third person no right to do so. ^9 Not only may the tenant maintain an action of trespass against the landlord in case of an unauthorized entry by the latter, but he may, if excluded from the possession by the landlord, main- tain ejectment against him as he could against a third person in 22 So it has been decided that the , 25 Crane v. Patton, 57 Ark. 340, landlord is liable in nominal dam- 21 S. W. 466. ages only if he enters after the ten- 26 Goebel v. Hough, 26 Minn. 252, ant has removed from the premises 2 N. W. 847. with all his property. Shannon v. 27 prout v. Hardin, 56 Ind. 165, 26 Burr, 1 Hilt. (N. Y.) 39. And see j^-^ Rgp, jg Reeder v. Purdy, 41 111. 279. ^s Sj^oi.gs .^ Brooks, 81 Ga. 468, 8 23 Abrams v. Watson, 59 Ala. 524. g ^ ^39, 12 Am. St. Rep. 332. That the landlord cannot enter to ^., i, „ , ^ „ , ^,_ ^ , ^, ^ , . 29 Northern Trust Co. v. Palmer, remove the fence, and that he is criminally liable under the local "^ "1- ^83, 49 N. E. 553; Darling v. statute for doing so, see State v. Kelly, 113 Mass. 29; Brown v. Powell, Piper 89 N C. 551. ^^ P^- 229; Crowell v. New Orleans 21 Hatchell v. Kimbrough, 49 N. C. & N. E. R. Co., 61 Miss. 631. 163. § 3 POSSESSORY RIGHTS OF THE TENANT. 9 like case, 3<* unless he has made a sublease, thereby putting the right of possession in another, ^i (2) Is permissible for certain purposes. The landlord is rec- ognized as having, apart from any stipulation, a right of entry on the land while in the tenant's possession for certain limited purposes. He has the right to enter to demand payment of rent *^* or to levy a distress.^^'' It has also been said that he may enter to "view waste," that is, to determine whether waste has been committed, provided at least that this does not involve the breaking of windows or doors,*^'^ or to post a notice of non- liability under the mechanics' lien law. ^^ jje may, no doubt, enter, without being guilty of trespass, for the purpose of comply- ing with police and sanitary orders and regulations, ^3 and he r so Tennessee & C. R. Co. v. Bast paration," that is, the state of repair, Alabama R. Co., 75 Ala. 516, 51 Am. "which was conceded." In Y. B. 21 Rep. 475; Olendorf v. Cook, 1 Lans. Hen. 7, 13, there is a dictum by (N. Y.) 37; Karns v. Tanner, 66 Pa. ^®*^^' J- ^^^^ ^^^ reversioner can 297" Feret v Hill 15 C B 207 ^'I'-er to see if the tenant has done And he may recover mesne profits' ^*^*«- These cases appear in Brooke's Holmes v., Davis, 19 N. Y. 488. Abridgment, Trespass, pi. 16, pi. 91, 31 A f K' b 11 167M ^00 ^^' ^^^' "^^ Bagshaw v. Gaward, ., ,^ „ „•„„' ' ' ' Yel. 96, and Six Carpenters' Case, 8 45 N. E. 627. „ , ,,„ ^, . ,. ^ ^ '. Coke, 146, there us a dictum to this 31a Proud V. HoUis, 1 Barn. & C. 8. ~, . . ., . ., . , . 1.XVJ ii^, J. ija,iu. IX, v^. o gffgg^ jj^ ^]jg course of the statement In State v. Forsythe, 89 Mo. 667, that one who enters by authority of 1 S. W. 834, it is decided that a j^^ ^nd abuses the authority, be- landlord whose rent is payable in ^^^^ ^ trespasser ab initio. In part of the crop may go on the prem- ^A^ndgrson v. Dickie, 26 How. Pr. (N. Ises and "request" a division of the y.) 105. there is a dictum that the crop. In Smith v. Caldwell, 78 Ark. landlord may enter to prevent waste 333, 95 S. W. 467, it is decided that ^nd "to save himself from liability the landlord may go on the premises foj. leaving an exposed opening in to collect the rent and threaten to ^jjg highway." attach the crop. 32 Congdon v. Cook, 55 Minn. 1, 31b See post, chapter XXXII. sg n. W. 253. 31c In Y. B. 11 Hen. 4, 75 b, it is 33 So he may enter to repair plumb- decided by three judges against one ing in compliance with an order that an entry for this cause is justi- of the board of health (Dexter v. fiable. Thirning, the dissenting King 28 N. Y. St. Rep. 750, 8 N. Y. judge, opposes this view on the Supp. 489) or to repair the building ground that it would enable the re- in compliance with an order of the versioner to keep entering constant- building department. "White v. Thur- ly. In Y. B. 9 Hen. 6, 29 b, there ber, 55 Hun, 447, 8 N. Y. Supp. 661; Is a dictum by Babington, J., that Campbell v. Porter, 46 App. Div. 628, a reversioner can enter to view "re- 61 N. Y. Supp. 712. 10 NATURE OP THE RELATION. § 3 will generally be exempt from liability for acts required by the state or municipal authorities. 3* Apart from stipulation, the landlord has, by occasional deci- sions, no right to enter on the premises to make repairs, ^^ and an injunction has issued to restrain a sublessor from entering on the sublessee for that purpose, although there was in the head lease a proA'ision for forfeiture in case of failure to repair. ^^ On the other hand it has been said that a landlord has the right, without subjecting himself to liability as a trespasser, to make repairs necessary to put the premises in the condition in which they were at the time of the lease, and to remedy defects amount- ing to a nuisance.^'' And in one ease an injunction at the suit of the tenant to restrain the landlord from taking down the unsafe walls of a building for the purpose of reconstructing it was refused, ^s Occasionally, the statute authorizes an entry for this purpose. ^^ There is a recent decision that the owner of an office building may place a "to let" sign upon the inside of the window of an office which he has leased to another upon the latter 's indication of an intention to remove without giving a notice of the stipulated length. *" The placing of such a sign evidently involves an entry upon the premises for the purpose of placing it there, and a different view might be taken 'as to the rights of the landlord upon a lease of premises Of a different character. At common, law the landlord of a tenant at will has the right to enter on the premises for the purpose of terminating the tenancy. *i but if he commits wrongful acts after so entering, he 3-1 Dunn V. Mellon, 147 Pa. 11, 23 he may enter to make repairs in Atl. 210, 30 Am. St. Rep. 706; Mark- Reader v. Purdy, 41 111. 279. ham V. David Stevenson Brew. Co., ss Dawson v. Brouse, Wlls. (Ind.) 51 App. Div. 463, 64 N. Y. Supp. 617. 441. And see, post, § 186 c. 39 See Merrick's Rev. Civ. Code, La. 35 Barker v. Barker, 3 Car. & P. art. 27C0; Bonnecaze v. Beer, 37 La. 557; Gulliver v. Fowler, 64 Conn. 556, Ann. 531. And a statutory requirement 30 Atl. 852 (dictum); Goebel v. that the landlord make repairs has Hough, 26 Minn. 252, 2 N. W. 847; been regarded as authorizing him to Smith V. Kerr, 108 N. Y. 31, 15 N. enter to make them. Dwyer v. Car- E. 70, 2 Am. St. Rep. 362. roll, 86 Cal. 298, 24 Pac. 1015. 30 Stocker v. Planet Bldg. Soc, 27 40 Whipple v. Gorsuch, 82 Ark. Wkly. Rep. 877. 252, 101 S. W. 735, 10 L. R. A. (N, 37 Kaufman v. Clark, 7 D. C. 1. S.) 1133. There is a dictum to the etCect that *i See post, § 13 b (1). § 3 POSSESSORY RIGHTS OF THE TENANT. H becomes a trespasser ab initio.*^ Under the statutes requiring a notice to terminate a tenancy at will,** the landlord has no right to enter on the premises, and he may consequently be made liable in trespass qimre clausum fregit if he does so enter.** In case the lease contains an exception of part of the land or of what is in law regarded as a part thereof, the possession of such part is in the lessor. Consequently, in case trees and minerals are excepted in the lease, the tenant is liable to the landlord in trespass if he fells or lops the trees,*^ or presumably if he remoYes the minerals, and the landlord has in such case a right of entry upon the land so far as may be necessary for the utilization of the thing excepted. *^ When the law gives the landlord authority to enter for a particular purpose, as, for instance, to distrain, he becomes a trespasser ab mitio if he abuses such an authority.*^ The landlord may have, by reason of statute or express stipu- lation and occasionally by the common law, the right to enter and take possession of the premises for some default on the part of the tenant,*^ and he has the right to re-enter upon the termination of the tenant's leasehold interest, and this, by the weight of authority, even though the tenant makes resistance thereto. *9 Upon the question whether, on the tenant's abandonment of the premises before the expiration of his leasehold interest, the landlord may enter without thereby subjecting himself to lia- bility as a trespasser, the decisions are not entirely clear. The *2 Faulkner v. Alderson, Gilmer v. Watson, 93 Mo. 107, 5 S. W. 605. (Va.) 221; Moore v. Boyd, 24 Me. ^t Six Carpenters' Case, 8* Coke, 242. 146, 1 Smith's Leading Cases, 143, 43 See pest, § 194 b. and notes; Brown v. Stackhouse, 155 4* Cunningham v. Holton, 55 Me. Pa. 582, 26 Atl. 669, 35 Am. St. Rep. 33; Marden v. Jordan, 65 Me. 9; 908. Dickinson v. Goodspeed, 62 Mass. In England, it being found that (8 Cush.) 119. See Elliott v. State, this doctrine bore severely upon land- 39 Tex. Cr. App. 242, 45 S. W. 711. lords making distresses, it was pro- 45 1 Wms. Saund. 321, note (5) to vlded by 11 Geo. 2, c. 19, § 19 that Pomfret v. Ricroft, citing Ashmead any irregularity or unlawful act by v. Ranger, 1 Ld. Raym. 551. the person distraining shall not loLiford's Case, 11 Coke, 48 b; Fos- make him a trespasser at initio. 'ter V. Spooner, Cro. Bliz. 17; Heydon 48 See post, chapter XIX. V. Smith's Case, Godb. 172; Wardell 49 See past, § 216. 12 NATURE OF THE RELATION. § 3 fact that in England there is a statute providing a special pro- ceeding for the recovery of possession of the premises, when one- half year's rent is in arrear, if deserted by the tenant and left ■uncultivated or unoccupied so as no sufficient distress can be had to countervail the arrears of rent, ^° may be regarded as tending to show that at common law the landlord has no right to enter on the abandoned premises without such proceeding. In this country there are at least two decisions to the effect that the landlord is a trespasser if he enters before the end of the term, though the tenant has abandoned the premises. ^^ On the other hand there are occasional decisions that the landlord has the right in such a case to enter upon the premises for the purpose of caring for them, ^^ and a few decisions according to which the tenant's abandonment gives the landlord the right to resume possession of the premises as if the lease had never been made. ^3 The fact that the tenant temporarily withdraws from the occupa- tion of the premises gives the landlord, however, no right to enter thereon, s* The question which ordinarily arises upon an abandonment of the premises by the tenant is not whether the landlord may re-enter and resume control, but whether such resumption of control is sufficient to show an acceptance of the tender of possession inferable from the abandonment, so as to 50 11 Geo. 2, c. 19, § 16. to return. In Lennen v. Lennen, 87 51 Brown v. Kite, 2 Tenn. (2 Ind. 130, it is said that if the owner Overt.) 233; Shannon v. Burr, 1 Hilt, could not enter upon Its ahandon- (N. Y.) 39. ment by the tenant, "an owner of 52 State v. McClay 1 Har. (Del.) valuable property might he compelled 520; Bier y. Carr, 69 Pa. 326. '° "^and by and isee his property &o », TTT, i trr i rr, ., ro-i to Tulu for waut of soms one to 53 Wheat V. Watson, 57 Ala. 581; „ , „ , „ „ occupy and care for it. ' Packer v. Cockayne, 3 G. Greene ^^^ ^^^.^^^ ^^ ^^^ ^^^ ^^ ^^^ „j ,10 Hansen v. Dennison, 7 111. App. (7 Law) 232; Denton v. Strickland, 48 „ ,.. , „ Bradw.) 73; Gray v. Robinson, 4 N. C. (3 Jones Law) 61; Fry v. ^^.^ ^^^ 33 ^^^ ^^^. ^^^^^^^^ ^ Jones, 2 Rawle (Pa.) 12; SteeLy. B^gj^^eii, 37 Conn. 36, 9 Am. Rep. Frlck,_56 Fa. 172; Wanamaker v. 399; state v. Page, 1 Speer Law (S. Buchanan, 33 Pa. Super. Ct. 138; c.) 408, 40 Am. St. Rep. 608. Cutting V. Cox, 19 Vt. 517; Wood- 182 steel v. Frick, 56 Pa. 172; Al- wardy v. Oonder, 33 Mo. App. 147; wood v. Ruckman, 21 III. 200; Dixon Warner v. Hoisington, 42 Vt. 94; v. Niccolls, 39 111. 372, 89 Am. Dec. Culley V. Taylor, 62 Neb. 651, 87 N? 312; Wentworth v. Portsmouth & D. W. 334. R. Co., 55 N. H. 540; Maverick v. In Warner v. Hoisington, 42 Vt. Lewis, 3 McCord (S. C.) 2; Rake- 94, it was said that such a contract straw v. Floyd, 54 S. C. 288, 32 S. B. "did not divest the plaintiff (the 419; Whaley v. Jacobson, 21 S. C. 51; landowner) of the legal possession Warner v. Abbey, 112 Mass. 355; any more than would a contract to Lake v. Sweet, 63 Hun, 636, 18 N. permit the defendant to enter upon Y. Supp. 342; Neal v. Brandon, 70 the field and dig and remove stone, Ark. 79, 66 S. W. 200; Rowlands v. or cut and draw away wood or tim- Voechtlng, 115 Wis. 352, 91 N. W. her," and It was there held that 990, 60 L. R. A. 585. after the crop had been harvested les See Reeves v. Hannan, 65 N. J, and the landowner's share had been Law, 249, 48 Atl. 1018; Dixon v. set apart in a certain place on the Niccolls, 39 111. 372, 89 Am. Dec premises, th^ cropper had no longer 312; Strain v. Gardner, 61 Wis. 174. any right to enter on that part, and 21 N. W. 35. CHAPTER II. THE CLASSES OF TENANCIES. § 11. Freehold tenancies. a. Tenancy in fee simple. b. Tenancy for life. 12. Tenancy for years. a. The nature of the tenancy. b. The commencement of the term. (1) May be subsequent to lease. (2) Requdrement of certainty. (3) Ascertainment of day of commencement. (a) Commencement on past day. (b) Lease "from the date." (c) 'Impossible date for commencement. (d) Day of commencement not named. (e) In case of oral demise. ( f ) Commencement on termination of prior lease. c. The duration of the term. (1) Statutory restrictions. (2) Requirement of certainty. (a) Lease must show duration. (b) Tenancy expiring only on contingency. (c) Lease for uncertain number of years. (3) Ascertainment of day of expiration. (a) General rule of computation. (b) Effect of custom. (c) Statutory provisions, (d^ Inconsistent limitations. (e) Oral evidence. (f) Lease covering separate tracts. d. Contingent expiration — Special limitation. e. Option In the lessor to terminate. (1) Particular stipulations. (2) Theory of operation. (3) In case of sale. (4) Notice to lessee. (5) Compensation to lessee THE CLASSES OF TBiNANCIES. 41 t. Option in the lessee to terminate. g. The destruction of the term. (1) General considerations. (2) Merger. (a) The general doctrine. (b) Quantum of the reversionary estate. (c) Estates held in different rights. (d) No merger if estate intervenes. (e) In case of interesse termini. (f) On transfer under judicial process or decree. (g) Effect of contract to convey, (h) Partial merger. (i) Merger as regards third persons. (3) Surrender. (4) Forfeiture. (5) Eviction. (6) Taking under power of eminent domain. (7) Bankruptcy. (8) Destruction of or injury to premises by unforeseen casualty. (9) Untenantable condition of premises. (10) Expiration of the lessor's estate. (11) Destruction of the lessor's estate. (12) War and military occupation. (13) Death. (14) Dissolution of corporation tenant. § 13. Tenancy at will. a. When the tenancy arises. (1) Lease at will of lessee. (2) Lease at will of lessor. (3) Permissive ipossession. (4) Lease not naming duration of tenancy. (5) Tacit acquiescence in another's possession. (6) Statutory provisions. b. Termination of the tenancy. (1) By the landlord. (2) By the tenant. (3) By death of party. (4) By transfer. (a) By the landlord. (b) By the tenant. (5) By special limitation. (6) Tenant's rights on termination. c. Nature of the tenant's interest. 14. Periodic tenancies. a. General considerations. b. When a periodic tenancy arises. (1) Under express limitatior 42 TENANCY IN FEB SIMPLE. §11 (2) By inference on general letting. (a) From payment of periodic rent. (b) From reservation of periodic rent. (c) Not from general letting alone. c. Quarterly, monthly, and weekly tenancies. (1) Apart from statute. (2) Under statutes. d. Transfer of interest. e. Mode of termination. § 15. Tenancy at sufferance. a. The common-law conception. b. Modern conceptions. c. Rights and liabilities of tenant. § 11. Freehold tenancies. a. Tenancy in fee simple. A conveyance in fee simple, in most jurisdictions, as before stated, creates no relation of tenure, it having been so expressly provided by the statute Quia Emptores^ and if the grantee is to be regar'ded as tenant at all, in the sense of holding under another, he is tenant under the state. The fact that a rent is reserved upon the conveyance cannot make the conveyance operate as creating a tenure, and, conse- quently, it is not strictly proper to say that the relation of land- lord and tenant exists between the grantor and grantee upon a com'eyanee in fee simple reserving rent. In New York, though it is recognized that no right of reverter or escheat remains in the grantor in the case of such a conveyance, ^ the courts have occasionally referred to the grantor and grantee as standing in the relation of landlord and tenant, apparently on the erroneous theory that any person to whom rent is payable by another is the landlord of such other.* And a conveyance in fee simple reserving rent has occasionally been referred to as a "lease" or a "perpetual lease."* In Pennsylvania, the statute of Qiim 1 Ante, § 1. Barb. (N. Y.) 104; Tyler v. Heidorn. "- De Peyster v. Michael, 6 N. Y. 46 Barb. (N. Y.) 439. (2 Seld.) 467; Van Rensselar v. * See Polts v. Huntley, 7 Wend. Hays, 19 N. Y. 76, 75 Am. St. Rep. (N. Y.) 210, and cases cited in Tyler 278; Van Rensselaer v. Read, 26 N. v. Heidorn, 46 Barb. (N. Y.) 439. Y. 558; Van Rensselaer v. Dennison, Compare Towle v. Remsen, 70 N. Y. 35 N. Y. 393. 303. The expression "perpetual 3 Van Rensselaer v. Read, 26 N. Y. lease" is used In Atkinson v. Orr, 558; Van Rensselaer v. Smith, 27 83 Ga. 34, 9 S. E. 787. § 11 TENANCY FOR LIFE. 43 Emptores is apparently not in force, and there, it seems, the rela- tion of landlord and tenant might be regarded as existing between the grantor and grantee in such a conveyance without reference to whether a rent is reserved.^ In a number of states there are statutes prohibiting a grant of land reserving a rent for more than a specified number of years, " and these would obviously preclude a conveyance in fee reserving a rent. b. Tenancy for life. The relation of landlord and tenant is created by a conveyance, by one having a greater estate, of an estate for the life of the grantee, or for the life or lives of some other person or persons, or for the lives of the grantee and of some other person or persons.'' Such a lease "for life" or "for lives" occiirs quite occasionally in England, but in this country is most unusual, a person creating a life estate ordinarily disposing of his whole interest by the same instrument by way of remainder, in which case no reversion exists and no relation of landlord and tenant is created. ^ The principles determining the mutual rights and liabilities of the landlord and tenant are the same when the relation is created by a lease for life as when created by a lease for any other period. At common law a lease for life, as it involves the creation of a freehold estate, was valid only if accompanied by livery of seisin, but, if so accompanied, no words of limitation were necessary, the rule being that in the absence of such words a conveyance sufficient to pass a freehold created a life estate in the grantee. * 5 Cadwallader, Ground Rents, c. 1; estate for life." Co. Litt. 42 a. So Gray, Perpetuities, § 16. It is said in Comyn, Landl. & Ten. 6 See post § 12 c (1). (at p. 6), that "sometimes a demise f See Challis, Real Prop. (2d Ed.) of lands is made without any limi- 311-331, as to the various classes of tation in respect of time. Where the estates for life or lives. form of the grant is such as will 8 Challis, Real Prop. 22. pass an estate of freehold, it will, Litt. § 1; Co. Litt. 8 b; 2 Blackst. though indefinite as to time, operate Comm. 121. as an estate for life." In Com. Dig., "If one grant lands or tenants, Estates- (E 1), it is said that an es- reversions, remainders, rents, advow- tate for life is created "if lands are sons, commons, or the like and ex- demised or granted to a man, gen- press or limit no estate, the lessee erally, and delivery be made"; and or grantee (due ceremonies requisite in Bac. Abr., Estate for Life (A), by law being performed) hath an that "If a man leases lands to an- 44 TENANCY FOR LIFE. §11 At the present time the necessity of livery in order to create such an estate no longer exists, but certain formalities are necessary in the execution of the conveyance, differing in the different states. Provided these requirements are satisfied, a lease to a person with- out words of limitation would, as at common law, create an estate for life, ^o unless, in view of local statutes dispensing with words of inheritance for the creation of an estate in fee simple, the conveyance be construed as passing an estate of the latter charac- ter. 11 Doubt has been expressed whether a lease for life reserving rent is within a statutory provision, such as we have before re- ferred to,i2 prohibiting a grant or lease reserving rent for a period greater than a named number of years, i* The common-law rule that an estate of freehold cannot be created to take effect in futuro^* presumably still precludes, in a considerable number of jurisdictions, a lease for life which is not immediately to vest in possession. A lease for life which fails to mention wJiose life will be regarded as one for the life of the grantee, though if the lessor might rightfully create an estate for his own life, but not for the life of the lessee, it will be construed as for the former's life, i** A lease to one during the lives of two other persons will continue until the death of the survivor of such persons, i*" and a like other without saying how long the 325; Jordan v. Neece, 36 S. C. 295, lessee shall enjoy them, he shall 15 S. E. 295, 31 Am. St. Rep. 869; have them for his own life, if livery Hunter v. Bryan, 24 Tenn. (5 he made, because every man's gift Humph.) 47; Taylor v. Cleary, 29 is taken most strongly against him- Grat. (Va.) 448; Gray v. Packer, 4 self, and for the benefit of the gran- Watts & S. (Pa.) 17. tee, to avoid all equivocation." n See 1 Tiffany, Real Prop. §§ 20, 10 Doe d. Dixie v. Davies, 7 Exch. 31. 89; "Wood v. Davis, 6 L. R. Ir. 50; 12 See ante, § 11 a. Curtis V. Gardner, 54 Mass. (13 is See Parish v. Rogers, 20 App. Mete.) 457; Edwardsville R. Co. v. Div. 279, 46 N. Y. Supp. 1058; Weg- Sawyer, 92 111. 377; Clearwater v. ner v. Lubernow, 12 N. D. 95, 95 N. Rose, 1 Blackf. (Ind.) 137; Adams W. 442, 102 Am. St. Rep. 572. v. Ross, 30 N. J. Law, 505, 82 Am. 1* Challis, Real Prop. (2d Ed.) 93; St. Rep. 237; Miles' Lessee v. Fisher, Co. Litt. 217 a. 10 Ohio, 1, 36 Am. Rep. 61; Jack- i*a Co. Litt. 42 a. son V. Van Hoesen, 4 Cow. (N. Y.) i^b Brudnel's Case, 5 Coke, 9 a. § 12 TENANCY FOR YEARS. 45 construction has been put on a lease for "the life" of the lessees.^*" A tenancy for life may be subject to a "special limitation," the effect of which is to terminate the estate upon the happen- ing of a particular contingency named before the death of the person by whose life the tenancy is otherwise measured. So a lease might be made to one to continue so long as he resides on tlie premises, or to a widow so long as she remains iinmarried or conducts herself properly, in which case the lessee would have, at common law, an estate for life subject to termination upon a change of residence, remarriage or improper behavior, respec- tively.i*"" § 12. Tenancy for years. a. The nature of the tenancy. Tenancy "for years" is not, as might be inferred from its name, necessarily a tenancy for a certain number of years, but the expression is applied to any tenancy for a certain time, as for one or more years, for a half or quarter of a year, for a month, or for any greater or less period of a fixed duration. ^^ The estate or interest of the tenant for years is frequently called a "term," from the Latin word terminus, and this word is also used to describe the period of time during which the estate or tenancy is to continue.^" The tenant's interest is also not infrequently spoken of as a lease, thus "putting, by a sort of metonymy, the instrument by which an estate for years is granted for the estate itself." ^"^ ticKenney v. Wentworth, 77 Me. v. Vaughan, 6 Dowl. & R. 349; Cottee 203. V. Richardson, 7 Exch. 143; Grizzle i*a Co. Litt. 42 a, 214 b. See post, v. Pennington, 77 Ky. (14 Busli) § 12 d. 115; St. Joseph & St. L. R. Co. v. St. 15 Litt. §§ 58, 67; 2 Blackst. Comm. liouls, I. M. & S. R. Co., 135 Mo. 173, 140; 1 Cruise's Dig. tit. 8, c. 1, § 3; 36 S. W. 602, 33 Am. St. Rep. 607; Stoppelkamp v. Mangeot, 42 Cal. Young v. Dake, 5 N. Y. (1 Seld.) 463, 316; Brown's Adm'rs v. Bragg, 22 55 Am. Dec. 356; Finkelmeier v. Ind. 122; Casey v. King, 98 Mass. Bates, 92 N. Y. 172; Baldwin r. Thlb- 503; Shaffer v. Sutton, 5 Bin. (Pa.) adeau, 28 Abb. N. C. 14, 17 N. Y. 228. Supp. 532; Harding v. Seeley, 148 18 See Co. Litt. 45 b; 1 Cruise's Pa. 20, 23 Atl. 1118. Dig. tit. 8, c. 1, § 6; Rector of Ched- it Heydrlck, J., in Harding v. ington's Case, 1 Coke, 153 a; Wright) Seeley, 148 Pa. 20, 23 Atl. 1118. V. Cartwright, 1 Burrow, 282; Evans 46 TENANCY FOR YEARS. . § 12 The interest of a tenant for years has always been regarded as personal and not real property, passing to the personal repre- sentatives of the tenant and not to the heir. ^^ Consequently, such interests are frequently referred to as chattels real. In one or two states, however, there are statutory provisions modify- ing this view. ^* This misuse, if it majy be so See Moss Point Lumber Co. v. Harri- termed, of the word "lease," is not son County, 89 Miss. 448, 42 So. 290, of recent origin. In Sheppard's 873. Touchstone, 266, it is said: "This lo Ga. Code 1895, § 3109 (An estate word (lease) also is sometimes, al- for years passes as real estate), though improperly, applied to the Mass. Rev. Laws 1902, c. 129, § 1 estate, i. e., the title, time or in- (if land is demised for the term of terest the lessee has to the thing one hundred years or more, the term, demised, and then it is rather re- so long as fifty years thereof remain ferred to the thing taken or had unexpired, is to be regarded as an and the interest of the taker there- estate in fee simple as regards the in." descent and devise thereof, as well IS Co. Lift. 118 a; 2 Blackst. Oomm. as in certain other connections). 386; 2 Pollock & Maitland, Hist. Eng. Ohio Rev. St. 1906, § 4181. (Perma- Law, 115, 329; JefEers v. Easton, El- nent leasehold estates, renewable dridge & Co., 113 Cal. 345, 45 Pac. forever, subject to the same laws of 680; Goodwin v. Goodwin, 33 Conn, descent as estates, in fee.) 314; Lenow v. Fones, 48 Ark. 557, 4 m Colorado, the general provision S. W. 56; Lake v. Campbell, 18 III. t^at, in the construction of the stat- 106; Shipley v. Smith, 162 Ind. 526, ^eg^ the words "land" or "lands" and 70 N. E. 803; Cade v. Brownlee, 15 the words "real estate" shall be con- Ind. 369, 77 Am. Dec. 95; Averill v. g^rued to include lands, tenements Taylor, 8 N. Y. (4 Seld.) 44; In re and hereditaments, and all rights Gay, 5 Mass. 419; Hutchinson v. thereto and all interests herein, and Bramhall, 42 N. J. Eq. 372, 7 Atl. the substantially similar provisions 873; Lewis' Heirs v. Ringo, 10 Ky. jq the chapters on conveyances and (3 A. K. Marsh.) 248; Paler v McRae, executions, were regarded as showing 56 Miss. 227; Mulloy v. Kyle, 26 Neb. that an estate for years was to be 313. 41 N. W. 1117; Keating v. Con- regarded, upon the tenant's death, don, 68 Pa. 75. It is immaterial that as real and not as personal property, a privilege of purchase in fee is giv- ^cKee v. Howe, 17 Colo. 538, 31 Pac. en the lessee. Hazard Powder Co. v n5. And so in Tennessee a provi- Loomis, 2 Disn. (Ohio) 544. gjo^ that " 'real estate,' 'real prop- A lease for ninety-nine years, re- erty,' 'land,' shall include lands, ten- newable forever, creates an interest ements, and hereditaments, and all constituting part of the personal rights thereto and interests there- assets of the lessee. Doe d. Allender in,' " was held to render a leasehold V. Sussan, 33 Md. 11, 3 Am. Rep. "real estate." Kelley v. Shultz, 59 171; Murdock v. RatclifE, 7 Ohio, 119. Tenn. (12 Heisk.) 218. § 12 NATURE OF THE TENANCY. 47 Formerly, one to whom a lease for a term of years was made was regarded as having merely a right of action against the lessor on his covenant in case of wrongful ouster by the latter, and no right of action against a third person wrongfully ejecting him, that is, he had rights in personam merely and not in rem. Early in the thirteenth century, however, by the introduction of the writ of quare ejecit infra terminum, the lessee was given the right to recover the land as against a grantee of the lessor, and later he was given a right of action when ejected as against all the world by the writ of ejectione firmae, this latter writ being that on which the later action of ejectment was based. 2" At first this latter writ was regarded as giving a right to the lessee to recover damages only against the person interfering with his possession but, eventually about the middle or latter part of the fifteenth century the courts began to give judgment in his favor for possession as well as for damages.^i ' ' Thus the interest of the. termor or lessee for years, instead of resting at best upon a cove- nant with his lessor, and therefore being enforceable only as against him, became a right of property which could be enforced against any wrongdoer, by a remedy analogous to that provided for a wrongful ouster of a freeholder from his possession, and thus these interests became estates or rights of property in land."** But even after the property rights of the lessee for years became thus established for most purposes, the "term" could still in some cases be destroyed at the will of the reversioner having the freehold by the latter 's suffering a default to go against him in a collusive action (common recovery), in which the lessee for years, having no freehold, could not intervene, *^ and it has been suggested that until this state of things was remedied by a statute passed in the second quarter of the sixteenth century, ** the lessee for years eould not well be regarded as having an 20 Adams, Ejectment, 2; Digby, & E. 750. See, also, Adams', Eject- Hist. Real Prop. (4th Ed.) 175; ment, 3; Smith, Landl. & Ten. (3d "The Seisin of Chattels" biy Prof. Ed.) 120. Maitland, 1 Law Quart. Rev. 335 et 22 Digby, Hist. Real Prop. (4th seq.; 2 Pollock & Maitland, Hist. Ed.) 176. Eng. Law, 106 et seq. 23 Co. Litt. 46 a; 2 Co. Inst. 321, 21 The old authorities bearing on 322. the question are collected in the note 24 2I Hen. 8, 0. 15 (A. D. 1529). to Doe d. Poole v. Errington, 1 Adol. 48 TENANCY FOR YEARS. § 12 estate, since "an estate which could not, by the common law, be defended at law, seems at common law to have been no estate." 25 b. The commencement of the term— (1) May be subsequent to lease. A lease for years, not involving any transfer of the seisin, was never subject to a rule similar to that which, at com- mon law, precluded the creation of an estate of freehold to take effect in futuro?^ and so, at the present day, the term may be made to commence either on the date of the delivery of the lease or on a subsequent date. A term of years to commence in futuro is not an estate but merely an interesse termini.^'' So if one makes a "reversionary lease, ' ' that is, a lease to take effect in possession after the expira- tion of an existing tenancy, the lessee has a mere interesse ter- mini.^^ Such an interest may be assigned, ^^ but it cannot, it is said, be surrendered otherwise than by implication of law. *° It will not merge in a greater estate unless it becomes itself an estate while it and such estate are vested in one person, ^i nor will an estate merge in it. ^^ (2) Requirement of certainty. It is said that the date of the commencement of the term must be certain,^^ ^^^^ n jg seldom that the courts have regarded a lease as lacking in the element of certainty in this respect, and it seems reasonable to conclude that an uncertainty arising from the use of indefinite language in specifying the time of commencement will have no greater effect than an uncertainty arising from the absence of any statement 25 CTiallis, Real Prop. (2d Ed.) 47. (1 Seld.) 463, 55 Am. Dec. 356; 28 2 Elackst. Comm..l43, 1 Cruise's 2 Preston, Conveyancing, 149. Dig. tit. 8, c. 1, § 18; Young v. Dake, 2s Smith v. Day, 2 Mees. & W. 684; 5 N. Y. (1 Seld.) 463, 55 Am. Dec. Lewis v. Baker [1905] 1 Ch. 46. 356; Elliott v. Stone, 67 Mass. (1 ^° Bro. Abr., Grants, pi. 110; Plow- Gray) 571; Field v. Howell, 6 Ga. ^^^- arguendo, in Browning v. Bes- 423; Johnston v. Corson Gold Min. t'"^' ^^°^^- ^^^ ^• n ,r^ r, ^ ^ -.rr, T^ , -,,„ ^0 Co. Litt. 338 a. Co. (C. C. A.) 157 Fed. 145. „, t^ ^ .n. ,. „. ,, „ . ^ ^ „ , „ „ , '^ I3oe d. Rawhngs v. Walker, 5 2T Smith V. Day, 2 Mees. & W. 684; ^^^^ & c 111 Copeland v. Stephens, 1 Bam. & Aid. ,^ HydeV. Warden, 3 Exch. Div. 72. 593, 606; Joyner v. Weeks [1891] 2 ss Co. Litt. 45 b; Sheppard's Touch- Q. B. 31; Young v. Dake, 5 N. Y. stone, 272; 2 Piatt, Leases, 50. § 12 COMMENCEMENT OF THE TERM. 49 whatever in this regard,*^'' causing the term to commence upon the nominal date or upon the date of delivery.^^'' The time of the commencement of the term need not be ascer- tained at the date of the execution of the lease, but it is suffi- cient if it can be ascertained when such time arrives, in accord- ance with the maxim id certum est quod cerium reddi potest. Ac- cordingly, a term may be created to commence on the death of a third person named,** on the death of the lessor himself,*'' on the expiration or sooner termination of a term already existent, ** upon the payment by the lessee of a certain sum to the lessor, *^ upon the completion of a building on the premises, ^^ or when the premises are made suitable for occupation.** In North Caro- lina, however, it has been decided that a lease to commence when the lessee begins to cut timber on the premises is void as failing to fix the time for commencement of the term with sufficient certainty. ^'^ (3) Ascertainment of day of commencement — (a) Commence- ment on past day. The lease may name a day which is past as that of the commencement of the term. *i In such case the lease has regard to that date for the purpose of computing the end ssaSee post, § 12 t) (3) (d). 313; McCIain v. Abshire, 72 Mo. ssij In Jenkin's Centuries, 301, case App. 390. • 69, it is said that if the date of 4o Gay Mfg. Co. v. Hobbs, 128 N. commencement is uncertain the term q. 46, 38 S. E. 26. In this case there will commence immediately. In ^^^ ^ ^^^^ pj standing timber, with Anonymous, 1 Mod. 180, the judges ^ ^^^^^ ^^ ^^^ purchaser to have five were equally divided upon this point. See post; at notes 57- 59 a. 3* Goodright V. Richardson, 3 Term R. 462. 35Bro. Abr., Grants, pi. 154; Grute V. Locroft, Cro. Eliz. 287; 2 Piatt, ^^i" *« to its commencement Leases, 50. *^ Enys v. Donnithorne, 2 Burrow, 36 Bishop of Bath's Case, 6 Coke, 1190. , 34 b. See post, § 12 b (3) (f). In Bird v. Baker, 1 EI. & El. 12, ST Co. Litt. 45 b. where there was a lease for fourteen 38 Colclough V. Carpeles, 89 Wis. years from a date past, it was held 239, 61 N. W. 836; Hammond v. Bar- that a provision authorizing either ton, 93 Wis. 183, 67 N. W. 412; Noiyes party to terminate the "demise at V. Longhead, 9 Wash. 325. the expiration of the first seven 39 Murray v. Cherrington, 99 Mass. years thereof" authorized such a 229; Clarke v. Spanlding, 20 N. H. termination seven years from such L. and Ten. 4. years from the time at which he be- gan to cut it in which to remove it, and it was held that this was a lease for a term of five years, uncer- 50 TENANCY FOR YEARS. § 12 of the term only, and it takes effect in point of interest not at such past date, but at the time of delivery .** (b) Lease "from the date." There have been numerous deci- sions upon the question whether a tenancy in terms limited "from the date," "from the day of the date," "from the making," "from the time of the making," or in like terms, was to be regarded as commencing on the day of the date or on the day next following the date. This question frequently arose in the older English cases in connection with a lease for life, which was void if the tenancy was to commence on the day after the making, as involving the creation of a freehold in futuro*^ but the ques- tion has not infrequently arisen in connection with a tenancy for years in ascertaining the last day of the tenancy. The older English decisions upon the question were exceedingly contra- dictory, and it was finally determined, in a case frequently referred to,^* that no absolute rule can be laid down but that such expressions are to construed as exclusive or inclusive of the day of the date, according to the text and subject-matter, so as best to effectuate the intention of the parties, and to support rather than defeat the instrument. In this country, likewise, there are decisions to the effect that the question whether such expressions are inclusive or exclusive of the date is one of the construction of the particular instrument to be resolved by reference to the context and surrounding circumstances.*^ Thus, the fact that installments of rent are made payable on days cor- responding to the day of the date has been regarded as ground for construing such a lease as creating a term commencing on that date,*® as has the fact that possession was delivered on date, and not from the date of the N. Y. 253, 45 N. E. 556; Hlgglns v. lease. Halligan, 46 111. 173; Donaldson v. 42 Shaw v. Kay, 1 Exch. 412 ; Jervis Smith, 1 Ashm. (Pa.) 197. V. Tomkinson, 1 Hurl. & N. 195; *eMeeks v. Ring, 51 Hun, 329, 4 Cooper V. Robinson, 10 Mees. & W. N. Y. Supp. 117; Deyo v. Bleakley, 694. 24 Barb. (N. Y.) 1. But in Ackland 43 The older cases are enumerated v. Lutley, 9 Adol. & E. 879, it was in 2 Piatt, Leases, 55, and In tbe considered that the fact that the rent opinions in the cases next referred was payable on days corresponding to. to the date of the lease was ground 44 Pugh V. Leeds, Cowp. 714. See for construing the lease as creating Ackland v. Lutley, 9 Adol. & E. 879. a term to begin the next day, since 4s See Buchanan v. Whitman, 151 otherwise the last installment of rent § 12 COMMENCEMENT OF THE TERM. 51 that day,*'' or that it was understood that it should be then delivered,*^ and the custotn of the community may be controlling in this connection.** But occasionally the cases have under- taken to assert a rule on the subject, to apply at least in the absence of any thing in the context or surrounding circum- stances to aid in determining the intention of the parties, it being stated sometimes that a tenancy for a certain period "from the date" of the lease commences on that date,*"* and some times that it commences on the following day.*i The question would seem to involve, to a considerable extent, the application of the general rule prevailing in that particular jurisdiction in regard to the computation of time from a particular date or event. The question whether a le.ase expressed to run "from" a par- ticular date named, other than the date of the lease, creates a tenancy commencing on that date is likewise, it seems, a ques- tion of the construction of the particular instrument.^^ The cases do not discuss the question whether, when the date of the lease as named and the actual date of the delivery of the lease are different, such an expression as "from the date" refers to the former or the latter. The expressions "from the making" and "from henceforth" have been regarded as referring would not be payable until the day bi Goode v. Webb, 52 Ala. 452; At- after the last day of the term. This kins v. Sleeper, 89 Mass. (7 Allen) case is followed in McCallum v. 487. Snyder, 10 U. C. C. P. 191. 52 in Gray v. Shields, 26 Nova 47 Buchannan v. Whitman, ISl N. Scotia, 363, it was held that a lease Y. 253, 45 N. E. 556. "from the 30th of April" created a *8 Meeks v. Ring, 51 Hun, 329, 4 N. tenancy commencing the day after Y. Supp. 117. the day named. *« Wilcox V. Wood, 9 Wend. (N. Y.) in I. X. L. Furniture & Carpet In- 346; Goode v. Webb, 52 Ala. 452; stallment House v. Berets, 32 Utah, Fox V. Nathans, 32 Conn. 348. See 454, 91 Pac. 279, where the lease wa<3 post, § 12 c (3) (b). expressed to be "from Dec. 1, 1904, BO Buchanan v. Whitman, 76 Hun, to Dec. 1, 1906, a term of two years," 67, 29 N. Y. Supp. 604, distinguishing whether it began on the first or sec- Mack V. Burt, 5 Hun, 28, where the ond day of the month was regarded term was to begin "from and after" as a question of construction to be a certain date; Donaldson v. Smith, settled by reference to the tfme that 1 Aphm. (Pa.) 197; Marys v. Ander- possession was actually given and son, 24 Pa. 272; Nesbit v. Godfrey, taken. 155 Pa. 251, 25 Atl. 621. 52 TENANCY FOR YEARS. § 12 to the date of delivery rather than to the nominal date.^^ And the day of delivery and not the nominal date have been re- garded as the time with reference to which to compute the com- mencement of the term when limited to commence on a certain day of March "now last past. "s* On the other hand, it is said that if the lease contains a possible and sensible date, a reference to the date means, prima facie at least, the date named and not that of delivery.^5 And it would seem ordinarily in conformity with the intention of the parties, when they state that the term is to endure for a certain period, "from the date" of the lease, to construe this as referring to the date named by them in the lease rather than to the date on which the lease may happen to be delivered. The lease cannot indeed take effect in point of interest before delivery, but as before stated, it may so take effect for the purpose of computing the period of enjoyment.^® (c) Impossible date for commencement. It is said that if the term be limited to begin from an impossible date, such as the 53 Clayton's Case, 5 Coke, 1, where of March, 1802, for the purpose of it is said that " 'from henceforth' upholding the lease, which was made should be accounted from the day under a power to make leases in of the delivery of the indentures, and possession and not in futv.ro. not by any computation of date, for 55 Styles v. Wardle, 4 Barn. & C. 'from henceforth' is as much as to 908. say 'from the making or from the se That the word "date" in such time of the delivery of the inden- case refers to the nominal date tures,' or 'a confectione praesent- would seem to be the opinion of ium'; for the confection or making C!oke, who saiys (Co. Litt. 46 b) that of tie lease does begin by the de- "if a lease be made by indenture, livery, and these words ('from hence- bearing date the twenty-sixth of May, forth'), or any other words of the etc., to have and to hold for twenty- indenture, are not of any effect or one years from the date, or from the force until delivery." Compara day of the date, it shall begin on Hicks V. Harvey, Comb. 399, where the twenty-seventh day of May. K it is said that to hold from date and the lease bear date the twenty-sixth from making is all one. day of May, etc., to have and to 54 Steele v. Mart, 4 Barn. & C. 272. hold from the making hereof, or In Doe d. Cox v. Day, 10 East, 427, from henceforth, it shall begin on it was decided that where a lease the day on which it is delivered, for was dated February 17, 1802, to hold the words of the indenture are not from the 25th of March next ensn- of any effect until the delivery, and Ing, but was not executed until the thereby from the making, or from following April, the term might be henceforth, take their first effect.'' construed to commence on the 25th Thus he distinguishes in this re- § 12 COMMENCEMENT OF THE TERM. 53 thirtieth day of February or the fortieth day of March, it shall begin from the delivery as if there had been no date at all,^'^ and a rather delicate distinction has been taken between such a case and one in which the term is Limited to begin on a certain day in a certain month without naming the year, the lease being regarded as void in the latter case for lack of certainty as to the time of the commencement of the term.^s At the present day a lease of the latter class would presumably be upheld as creating a term to commence either on its delivery ^^ or on the next ensuing day corresponding to the day named.^®" (d) Day of commencement not named. When no time is named for the commencement of the term, it will ordinarily commence upon its nominal date if this is the same as the date of delivery .60 But in case the date of delivery is different from that inserted in the instrument of lease, there arises the question which date is to control. It is said by Coke that "if the haben- dum be for the term of twenty-one years, without mentioning when it shall begin, it shall begin on the day on which it is deliv- ered, for there the words take effect. ' '^^ But in this case, as when the term is limited to commence "from the date," it would seem to be quite as conformable to the probable intention of the parties to consider the date named by them as that of the commencement of the term for the purpose of computation-^^ There are several cases ^^ in which it is said that the term will commence, if no time of commencement is stated, on the date of the lease, but in all these the nominal date and that of delivery were, so far as appears, the same. Occasionally, it seems, even though the lease does not name any date for the commencement of the term, it will commence on gard between the "date" and the Doe d. Cox v. Day, 10 East, 427, ante, "making" of the lease. note 54. 57 Co. Lltt. 46 b; Bac. Abr., Leases eo See citations in the three fol- (L. 1). lowing notes. B8 Anonymous, 1 Mod. 180. ei Co. Litt. 46 b. ^B See 2 Piatt, Leases, 65. 62 See ante, at note 55. E9aln Huffman v. McDanlel, 1 Or. ea Doe d. Phillip v. Benjamin, 9 259, it was held that a lease "from Adol. & E. 644; Furness v. Bond, 4 day of , A. D. 1856," for a Times Law R. 457; Sandill v. Frank- term of eighteen months, expired at lin, L. R. 10 C. P. 377; Keyes v. furthest eighteen months from the Dearborn, 12 N. H. 62. See Donald- last day of the year 1856. Compare son v. Smith, 1 Ashm. (Pa.) 197. 54 TENANCY FOR YEARS. § 12 neither the nominal date of the lease, nor on the date of delivery, in view of provisions in the lease showing a different intention. Thus, it has been decided that the dates named for the periodical payment of rent might show that it was intended that the term should commence on a corresponding date.^*- ^^ But if the lease clearly states the day of the commencement of the term, this cannot be affected by the times named for the payment of rent.^^ And it makes no difference that the lease is not executed till the day named, so that the tenant does not enjoy the possession for the whole of that day.^'^ (e) In case of oral demise. Ordinarily, in the case of an oral letting, the lease has been regarded as taking effect from the time the tenant's entry thereunder .«* It has, howe|t|r, been decided in England that when one entered between the regular quarter days, and upon the next quarter day paid a proportion- ate part of the rent, and thereafter paid upon the regular quarter days, his tenancy should be regarded as commencing with the first quarter day following his entry.^^ In one case in this country it is said that in determining when a verbal lease began the jury may consider the time of entry, the time from which the lessee paid the rent, and all the other circumstances,^" and this would seem a proper and reasonable view of the matter.''^ (f) Commencement on termination of prior lease. If a lease is made in terms to commence upon the termination of a previous lease, the tenancy will begin immediately if there is no such previous lease, and if the term created by the previous lease terminates prematurely, the term created by the second lease will then begin.^2 ^ ]ease of land which is to begin at the termination 64, 65 Sandill v. Franklin, L. R. 10 eo Doe d. Holcomb v. Johnson, 6 ^' ^- ^'^''- Esp. 10; Doe d. Savage v. Stapleton, 06 Sidebotham v. Holland [1895] 1 3 car & P 275 ». a-.. t\v TT „ r.„ .. . Topendill v. Neuberger, 67 Mich. 6. Sidebotham V. Holland [1895] 1 3^ ^ Q. B. 378. And see Meeks v. Ring, ■ 51 Hun, 329, 4 N. Y. Supp. 117. " ^^^^^"^ "■ ^^^' ^ ^url. & N. 594, 68 Doe d. Cornwall v. Mathews, II ^®^™^ *° ^ ^° ^^^^ general effect. C. B. 675; Kemp v. Derrett, 3 Camp. '^^ ^o. Litt. 45 b; Bac. Abr., Leases 510; Eberlein v. Abel, 10 III. App. (L) 1- See post, § 146 d, at notes (10 Bradw.) 626; Feyrelsen v. 18-23. ft Sanchez, 70 111. App. 105. § 12 DURATION OF THE TERM. 55 of existing leases of separate parts of it will commence as to each part as soon as the existing term therein comes to an endJ'' c. The duration of the term— (1) Statutory restrictions. At common law there is no restriction upon the length of the term which may be created,'^* but in several states there are statutory provisions in this regard^" The Alabama statute/^ providing that no leasehold estate can be created for a longer term than twenty years, has been regarded as invalidating the lease only as to the excess over the period named/'' but a different view has been taken in New York as to a statutory provisioti that no lease of lands for over twelve years, reserving rent, shall be valid, and such a lease was there held to be void in totoJ^ A provision restricting the duration of a lease of agricultural lands has been held to apply even though the lands were not leased for purposes of atgrieulture, if they are agricultural in 73 Windham's Case, 5 Coke, 7 a. Const, art. 1, § 14), in one, if for f*Co. Litt. 45 b; 2 Blackst. Comm. over twenty years (Iowa Const, art. 142. See 2 Pollock & Maitland, Hist. 1, § 24). In Nevada a lease of such Eng. Law, 112. lands, if for over ten years, is void A lease for nine hundred and nine- without reference to whether rent ty-nine years is valid. Morrison v. is reserved (Comp. Laws 1900, § St. Paul & N. P. R. Co., 63 Minn. 75, 2717). 65 N. W. 141, 30 L. R. A. 546; Tod- Leases of city lots are void, if for hunter v. Des Moines, I. & M. R. Co., over twenty years, by the provisions 08 Iowa, 205, 12 N. W. 267; In re of S. D. Civ. Code 1903, § 226; Nev. Gay, 5 Mass. 419; Montague v. Smith, Comp. St. 1900, § 2717, if for over 13 Mass. 396; Lilley v. Fifty Asso- fifty years, by those of Cal. Civ. Code, ciates, 101 Mass. 432. In Caldwal- § 718; and, if for over ninety-nine lader. Ground Rents, 101, there is years, by those of N. D. Rev. Codes a full statement as to long term 1905, § 4706; provided, except in Ne- leases and rent reserved on convey- vada, a rent is reserved, ance in fee in different parts of this 7e Code 1907, § 3418. country, as well as in Europe. 77 Robertson v. Hayes, 83 Ala. 290, 75 Leases and grants of agricul- 3 So. 674. tural land, reserving a rent, are in 78 Clark v. Barnes, 76 N. Y. 301, four jurisdictions void if for over 33 Am. Rep. 306. But in Parish v. ten years (Cal. Civ. Code, § 717; Rogers, 20 App. Div. 279, 46 N. Y. Mont. Rev. Codes 1907, § 4465; N. Supp. 1058, a majority of the court D. Rev. Codes 1905, § 4746; S. D. Civ. held that such provision, if appli- Code 1903, § 226), in two if for over cable at all to leases for life, rend- twelve years (Mich. Const, art. 18, ered a lease of agricultural land for § 12; N. Y. Const, art. 1, § 13), in life invalid only as to the excess over one, if for over fifteen years (Wis. the twelve years. 56 TENANCY FOR YEARS. § 12 cliaracter/9 but it has also been decided that an express pro- vision of the lease excluding such use of the land will render it valid.8o Where two leases were made at one time and as parts of one transaction, one for twelve years and the other for eight years, the latter to commence on the termination of the former, both were held void, this being an evident attempt to avoid the pro- hibition of a lease for over twelve years.^^ A statutory provision invalidating a lease for more than a certaui period in which a rent is reserved was decided not to apply to a conveyance made in consideration of the grantee's promise to support the grantor during her life, this not involv- ing any reservation of rent,®^ and this view was taken of a lease, by the owner of a farm, of the farm and the personal property thereon to his grandchild, the latter to cultivate it and keep it in repair, the two to share in the proceeds, and the grandchild to have the farm on the other 'j5i death,®^ and also of a lease granted in consideration of a gross ffum.^* In a recent case a lease which was delivered in escrow to take effect- upon the lessor's death was held to be invalid under such a statute, by reason of the fact that the lessor's death occurred at such a time that more than twelve years would intervene between it and the time named by the lease for the termination of the ten- aney.8** Ordinarily, the question of the invalidity of a lease by reason of such a statute would, it seems, be a matter to be ascer- tained as of the time of the making of the lease. In Maryland there are statutory provisions, hereafter referred to,^^ which, while not restricting the period for which a lease may A lease for twelve years, witli a so Massachusetts Nat. Bank v. covenant to renew every twelve Shlnn, 163 N. Y. 360, 57 N., E. 611. years, was held to be good for twelve si Clark v. Barnes, 76 N. Y. 301, years, while the covenant was void. 33 Am. Rep. 306. See post, § 219. Hart V. Hart, 22 Barb (N. Y.) 606. 82 Stephens v. Reynolds, 6 N. Y. A judgment foreclosing a mortgage '•^ Seld.) 454. on the leasehold was held to estop »^ P^rsell v. Stryker, 41 N. Y. 480. the lessee from alleging that the ..'^T^^ L^T^\^^ ""n "'- 95, 95 N. W. 442; Rutherford v. Gra- lease was void under the constitu- j^^^^^^ ^ ^^^ ^^ Y.) 796 tional provision. Witherbee v. Stow- s4a Waldo v. Jacobs, 152 Mich. 425, er, 23 Hun (N. Y.) 27. 15 itet. Leg. N. 316, 116 N. W. 371. 73 Odell V. Durant, 62 N. Y. 524. ss See post, § 269. § 12 DURATION OF THE TERM. 57 be made, give the tenant the absolute right to purchase the rever- sion after a certain number of years for a price equal to the capitalization of the rent at a certain percentage named. (2) Requirement of certainty — (a) Lease must show dura- tion. The duration of the term must appear with certainty from the lease creating it.*® Otherwise, it is insufficient to create a term of years, and the person entering thereunder will be either a tenant at will or a periodic tenant,*'^ or if the lease be executed with such formalities as are necessary for the creation of a freehold estate, he will be, it seems, a tenant for life. ** The lease need not, however, actually name the period during which the tenancy is to endure, but it may fix such period by reference to some collateral fact or event. So a demise to hold for as many years as a person named has in other property,*® or "during the minority of B, " a living person, whose age is ascertainable,®" or until certain fixed yearly payments amount to a sum named,®^ is valid to create a term. Such collateral fact or event must however be itself certain as regards its duration or time of hap- pening, in order that a reference thereto may give the requisite certainty of duration to the tenancy.®^ In one case a lease for a "season" was regarded as creating an estate for years,®^ and in another a lease for the purpose of raising a crop of "winter" wheat was construed to create a tenancy to endure until the time for harvesting such a crop.®* In the former case it could be shown by oral evidence what was meant by the expression "season" in that vicinity and in that connection, and so there would seem to be the requisite degree of certainty as to duration, but in the latter case there would 86 Say V. Smith, Plowd. 272; oo Co. Litt. 45 b. Bishop of Bath's Case, 6 Coke, 35; bi Bishop of Bath's Case, 6 Coke, Reed v. Lewis, 74 Ind. 433, 39 Am. 35. g^y y_ Smith, Plowd. 273; Bar- Rep. 88; Gilmore v. Hamilton, 83 ^^^ ^ Johnson, 2 Ind. App. 25. Ind. 196; Melhop v. Meinhart, 70 ^^ g^^ ^^^^ subsection, § 12 c (2) Iowa, 685, 28 N. W. 545; Corby v. McSpadden, 63 Mo. App. 648. ^'^'■ 87 See post, §§ 13 a (4), 14 b (2). »' Kelly v. Waite, 53 Mass. (12 88 See ante, § 11 b; post, 13 a (4). Mete.) 300. See Praser v. Drynan, 9 89 Bishop of Bath's Case, B Coke, New Br. (4 Allen) 74. 35; Co. Litt. 45 b; Eubank V. May & ^Rees v. Baker, 4 G. Greene Thomas Hardware Co., 105 Ala. 629, (Iowa) 461. 17 So. 109. 58 TENANCY FOR YEARS. § 12 seem necessarily to be a considerable degree of uncertainty as to duration until the crop was actually harvested. There is a decision that a lease was one for years when, though the duration of the tenancy was not stated, it was limited to commence in the future, so that a freehold could not be regarded as created, and other provisions showed that a lease for years was intended.®^ This decision can be supported only on the theory that a lease which appears to be intended to take efPect as a lease for years, without explicitly naming any period of time, is equivalent to a lease expressed to be "for years," and is, con- sequently, in accordance with the view stated in some of the old books,"* good as a lease for two years. It seems, however, most questionable whether a lease should be regarded as equiva- lent to a lease expressed to be "for years" merely because it indicates an intention that it shall create a tenancy for years, in the absence of a statement, expressly or by inference, of the length of the term. In one case it was in effect decided that there was sufficient certainty as to the term if its duration could be ascertained at the time of its commencement, though not at the time of the making of the lease.^^ The opinion contains no discussion of the matter on principle, and the soundness of the view indicated may, it is submitted, be open to question. (b) Tenancy expiring only on contingency. There are at least two eases to the effect that there is a sufficient certainty as to the duration of the tenancy if it is to endure until a particular event, though the time of such event cannot be ascertained in advance. In one of the cases referred to the lease was regarded as creating a term when made to endure so long as the lessee should use the premises for a particular purpose,®* and in the 95 Barney v. Keith, 4 Wend. (N. the lessee at the rent stipulated," Y.) 502. and this was regarded as giving suffl- 96 See post, at note 125 a. , cient certainty. 97 Flagg V. Dow, 99 Mass. 18. V ss Homer v. Leeds, 25 N. J. Law There a lease for eight years pro/ (Dutch.) 106. There though the vided that if at the end of that titjie lea^ was in terms expressed to he the lessors did not pay the appraised merely "for any term of years the value of the buildings which might said lessee may think proper," it be erected by the lessee the latter appearing from the evidence that the might retain possession "till the said lease was made for the purpose of sum, without interest, is realized by manufacturing salt, the court de- § 12 DURATION OP THE TERM. 59 other when made to endure until the receipts from the premises amounted to a certain sum.^^ There are other cases in which the effectiveness of such a limitation upon a contingency has been recognized, without, however, any statement as to the character of the tenancy, as when the tenancy was to endure until other premises were made suitable for the lessee's occupancy ,1"" "dur- ing the life of the building" in which the rooms leased were situ- ated, i°i until the issues and profits of the land have amounted to a certain sum,!"^ go long as oil shall be found in the land,!"^ until the lessor pays a certain debt,!"* until the land js sold,!"!* or so long as the premises are used for a certain purpose.!"^ If a lease which so undertakes to create a tenancy to terminate cided that It was "a lease for so 101 Alnsworth v. Mt. Moriah Lodge, long a term as the lessee shall use 172 Mass. 257, 52 N. E. 81. Here the premises for the purpose of it was held that "life of the building" manufacturing salt," that Is, that a was terminated, within the provi- term existed though there was no sion of the lease, when the lessee term named, a most singular view, could not rebuild the rooms leased, it would seem. It ma,y be noted as required by the covenant to keep that the court in this case, in citing in repair, without rebuilding other a statement from Comyn, Landl. & parts of the building. Ten. 88, to the effect that "the dur- . i»2 Batchelder v. Dean, 16 N. H. ation of a term, if not definitely ex- 265. pressed in a lease, may be fixed by In Thomas v. Wright, 9 Serg. & R. reference to collateral or oxtrinBic (Pa.) 87, it was said that one hold- circumstances," seems to assume ing under a lease at a fixed rent, to that this means that the court can hold till he had reinbursed himself go into oral evidence to aid the un- for repairs, was a tenant from year certainty of the lease in this respect, to year. This seems sound in prin- while it evidently >means merely ciple, since his holding was for an what has been stated in the text uncertain time, and consequently, as- above, that a reference in the lease suming that the lease was not suffi- to extrinsic circumstances may be cient to create a freehold, a tenancy a sijpicient statement of the length at will would have existed had it of the term. not been for the reservation of rent. »9 Wilcox V. Bostick, 57 S. C. 151, See post, § 14 b (2). 35 S. E. 496. ^"^ Harley v. O'Donnell, 9 Pa. Co. looiyArcy v. Martyn, 63 Mich. Ct. R. 56. 602, 30 N. W. 194. So in Stevens v. w* Wells v. Sheerer, 78 Ala. 142; Pantlind, 95 Mich. 145, 54 N. W. Nugent v. Riley, 42 Mass. (1 Mete.) 716, a lease of a sawmill for so 117, 35 Am. Dec. 355; Hunt v. Com- long a time as it shall take the stock, 15 Wend. (N. Y.) 665. lessees to cut certain designated logs los Aydlett v. Pendleton, 114 N. C. was regarded as valid,, nothing be- 1, 18 S. B. 971. in said, however, as to the charac- loeKugel v. Painter, 166 Pa. 592, ter of the tenancy. 31 Atl. 338. 60 TENANCY FOR YEARS. § 12 only upon the happening of a certain contingency, the time of which cannot be ascertained in advance, is executed with formali- ties sufficient to pass a freehold, it would, according to the com- mon-law authorities, have that effect, creating an estate in fee or for life in the lessee, subject to a special limitation!"'^ terminat- ing the estate upon such a contingency, that is, for instance, when the premises cease to be used for such purpose, the other prem- ises are made suitable, or the life of the building comes to an end. Such cases fall clearly within the principle of Coke's state- ment that "if a man grant an estate to a woman while she re- mains single, or during her widowhood, or so long as she behave weU, or to a man and a woman during the coverture, or as long as the grantee dwell in such a house, or so long as he pay forty pounds, etc., or until the grantee be promoted to a benefice, or for any like uncertain time, which time, as Braeton saith, is tempiis indetermmatum, in all these cases if it be of lands or tenants, the lessee hath in judgment of law an estate for life determin- able, if livery be made.''^"* If on the other hand the lease is not executed so as to pass a freehold, it can create but a tenancy at will, since the duration of the tenancy is absolutely uncertain until it has come to an end. But even if it be a tenancy at will, the limitation of a contingency for the termination of the tenancy may be effective as a special limitation, there being on principle no objection to such a limitation in connection with a tenancy at will.!"^ Such a lease, not naming any term but limited to endure until the happening of a contingency, cannot properly be regarded as a lease for years. The view just stated appears to be equivalent to the statement in one of the older authorities that, in order to support a lease for years by reference, the reference must be "to a thing which has express certainty at the time of the lease made, and no|^ to a possible or casual certainty,""" in accordance with which it was held that a lease to endure until the child of I came to full age. In Beham v. Ohio, 75 Tex. 87, 12 tion of the building on the premises S. "W. 996, It was held that when a by fire another court house was se- lease of premises for use as a court lected. .house provided that the tenancy 107 See 1 Tiffany, Real Prop. § 30. should come to an end if at any los Oo Litt. 42 a. time the commissioners should se- 109 See post, § 13 b (5). lect another court house, it would no Bishop of Bath's Case, 6 Coke, be presumed that ui)on the destruc- 35 b. § 12 DURATION OF THE TERM. 61 such child being in ventre sa mere at the time of the lease, was lacking in certainty ,m as was a lease to one who had execu- tion under a statute merchant until he was satisfied the duty for which he had issued execution,ii2 and also a lease of lands to endure until the total issues and profits amounted to a certain sum.113 And so a lease to endure for so many years as A shall live 1^* or "as the coverture between A and B shall continue, "^^^ or for so long as C shall be parson of D,ii8 is stated not to be good as a lease for years by reason of the uncertairity. In all of these cases, it is to be observed, when the contingency happens which is to terminate the tenancy, the duration of the tenancy will be known, but this is not to be regarded as making its duration cer- tain within the rule. If it were otherwise, a tenancy for life or at will might be regarded as a tenancy for years, since, when the life ceases or the will is exercised, the duration of the tenancy will be known. It may be suggested that a tenancy to endure till the happen- ing of a contingency named might be upheld as a tenancy for years by the application of the principle, stated by the older authorities, that a term uncertain at the time of the lease may be rendered certain by matter ex post facto, the only instance of which specifically mentioned, being that of a lease for so many years as a third person may name, in which case, if such person name a certain term, the lease will be good ah mitio?-^'' That a lease until a contingency named was not within this principle, as understood by these authorities, appears with sufficient clear- ness from the cases above referred to. This doctrine, that the term may be rendered certain by matter ex post facto, it should be mentioned, was itself subject to a restriction to the effect that the reduction to a certainty must occur within the lifetime of both the lessor and the lessee ^^^ on the theory, apparently, that no interest passed until the certainty appeared.^^^ 111 Bishop of Bath's Case, 6 Coke, 117 Bishop of Bath's Case, 6 Coke, 35 b. 35 b; Say v. Smith, Plowd. 273. 112 Say V. Smith, Plowd. 273. us Rector of Chedington's Case, 113 Bishop of Bath's Case, 6 Coke, 1 Coke, 155 a; Say v. Smith, Plowd. 35 b. 273; Western Transp. Co. v. Lan- 114 Co. Litt 45 b; Sheppard's sing, 49 N. Y. 499. Touchstone, 275. 11° See argument in Savell v. Cor- ns Bac. Abr., tit. Leases (L 3). dell, Godb. 24. 116 Co. Litt. 45 b. 62 TENANCY FOR YEARS. § 12 The view above stated, that the mere fact that a future event is named, on the happening of which the tenancy is to terminate, does not, if the time of such happening is uncertain, create the certainty of duration necessary for an estate for years, is recognized in a number of cases in this country, it having been decided that there was no sufficient certainty to create a term of years in the case of a lease for so long as the lessee "may please, "1^'' "for so long as a certain business may be carried on by the lessee," 1 2^' "until the party of the first part is prepared to improve the ground with new buildings, "122 or until the prem- ises are sold.^^* And it has been decided that a lease not naming any term is not a lease for two years because it provides that the lessor may repossess himself of the property at the end of two years.124 go a lease "during and for the whole time that the les- see may be postmaster ' ' was construed as referring to his present term in such office, since, if it was regarded as including the term which he might afterwards have by xeappointment, the lease would be lacking in certainty sufficient to create a term.^^^ (c) Lease for uncertain number of years. It is said in some of the older books that if a man in terms leases his land "for years" or "for term of years," it is a good lease for two years, be- cause for more there is no certainty, and for less there can be no sense in the words. i^^'' To a certain extent in accordance with this view is that expressed in a modern ease that a lease for one or more years is a lease for two years.^^® Perhaps a lease in 120 Western Transp. Co. v. Lian- bound, he having the right to term- sing, 49 N. Y. 499. inate the lease at will. See post, § 121 Melhop V. Meinhart, 70 Iowa, 12 f. ■685, 28 N. W. 545. "" Easton v. Mitchell, 21 111. App. 122 Corby v. McSpadden, 63 Mo. ^^^■ App, 648. ^^^^ Bishop of Bath's Case, 6 Coke, 123 Lea V. Hernandez, 10 Tex. 137. ^^- ^^^- Abr., Leases (L) 3; Bro. 1=4 Murray V. Cherrington, 99 Mass. ^'"■- ^^^^^- P^' ^^- ""ng dictum of Fitzherbert, J., in Y. B. 14 Hen. 8, 10. But Brooke, J., apparently thought that such a lease was one 229. The decision in this case was however, on the ground that the lessee was not bound for the two ^t will only. See Bro. Abr., Lease, years. But by other decisions the pj 22. lessor might be bound for a certain lae Boston Clothing Co. v. Solberg, period though the lessee is not so 28 Wash. 262, 68 Pac. 715. The § 12 DURATION OF THE TERM. 63 this latter form might be regarded as a lease for two years with an option in the lessee to terminate the tenancy at the end of one year. 127 A lease for seven, fourteen, or twenty-one years, as the lessee shall think proper, has been regarded as sufficiently certain,!^^ as was a lease, made in 1775, for "three, six, or nine years, determ- inable in 1788, 1791 or 1794, ' ' it being decided that the lessee had the option whether to terminate it at either of the earlier dates.129 Ordinarily, the same end would be attained by making a lease for the longest period named, with an option in the lessee to terminate it at the end of one of the shorter periods.^*** (3) Ascertainment of day of expiration — (a) General rule of computation. In the case of a term limited to endure, not for a certain number of days but for a year or a month, the lease does not terminate upon the day corresponding to the day on which the term commences but upon the day preceding that day, that is, the term is regarded, for the purpose of computation, as commencing at the midnight preceding the day named for its commencement.* *i So a lease for a year, commencing the first day of April, expires at the end of the last day of March,i32 and a lease for a month, commencing the first day of the month, •expires the last day of the month.i^s The same rule holds good, no doubt, when the tenancy is for two or more years or for ■opinion merely cites Wood, Landl. & 1032. The decision is probably more Ten. § 291, stating that a lease for correctlji reported in 3 Term R. one year certain, and so on from 4^3^ note. year to year, creates a tenancy for i29Goodright v. Richardson, 3 two years at the least. (See post, .p^j^ ^ ^g2 i 14 b [1] ) and Gear. Landl. & ^^„ ^^^ ' ^„ ^ Ten. § 25, stating that ^J^^^^^ ^l ,31 Say v. Smith, Plowd. 271; Side- more than one year, without saying " ' . * *„,„ ,.»o,.c, botham v. Holland [1895] 1 Q. B. how many years, is for two years „„„ „ . .i „ ^ o< tj, 079 :, _ .. , T,««». 378; Marys v. Anderson, 24 Pa. 272 certain. Mr. Gear cites only Denn ' , / ^ _ r. ., „ c^ r.„ oxn. /^ 4. ■ X.V A i3^ iA\ 132 Fox V. Nathans, 32 Conn. 348. Compare post, § 12 c (3) (d). ' , , ^ 12T See post, § 12 f, and cases next "» Steffens v. Earl, 40 N. J. Law, ^jjgj 128, 29 Am. Rep, 214. 128 Ferguson v. Cornish, 2 Burrow, 64 TENANCY FOR YEARS. | 12 two or more months.^** So in the case of a periodic tenancy, each period begins on the day corresponding to that of the day named for the commencement of the holding, and terminates on the previous day.i^^ In the ease of a tenancy from month to month, for instance, which began on the first day of the cal- endar month, each month of the tenancy ends on the last day of the calendar month, and the succeeding monthly period begins on the following day.^^® It has in one state been said that a lease to end ' ' on May 1st ' ' expires at noon of that day, while one "to May 1st" expires at midnight on April 30th. 1 3 '^ (b) Effect of custom. The exact time of the expiration of the tenancy under a lease for a particular period may, it seems, be affected by the custom and common understanding of the community in this regard.^^s jn jg-gw York it is said to be settled by custom, which has acquired the force of law, that a tenancy for the term of one year, commencing on a first day of May, shall terminate on the next first day of May at twelve o'clock noon.139 (c) Statutory provisions. In several states there are statu- tory provisions to the effect that in the case of leases not nam- ing any period the tenancy shall come to an end at a certain time in the calendar year, or shall be construed as intended to endure for a period named in the statute.^*** The effect of such 12* So if a term of two years is In Frost v. Akron Iron Co., 1 App. limited to commence on December DIv. 449, 37 N. Y. Supp. 374, it is said 1st, it ends on November 30th. that by custom, when a lease ex- 135 Sidebotham v. Holland [1895] pires on the second day of May, the 1 Q. B. 378. landlord is entitled to possession at 136 Petsch v. Biggs, 31 Minn. 392, twelve o'clock noon. See, also, Peo- 18 N. W. 101; Harris v. Halverson, pie v. Robertson, 39 Barb. (N. Y.) 23 Wash. 779, 63 Pac. 549. 9, ante, note 137. 13T People V. Robertson, 39 Barb. no Cal. Civ. Code, §§ 1943, 1944 (N. Y.) 9. (A hiring of real property other isssee Fox v. Nathans, 32 Oonn. than lodgings and dwelling houses, 348; Marys v. Anderson, 24 Pa. 272; in places where there Is no usage "Wilcox V. Wood, 9 Wend. (N. Y.) on the subject, is presumed to be for 346; Doe d. Moore v. Eason, 33 N. C. one year from its commencement (11 Ired. Law) 568. A hiring of lodgings or a dwelling 139 Marsh v. Masterson, 15 Daly, house for an unspecified term is 114, 3 N. Y. Supp. 414; Wilcox v. presumed to have been made for Wood, 9 Wend. (N. Y.) 346; 2 Mc- such length of time as the parties Adam, Landl. & Ten. (3d Ed.) 578. adopt for the estimation of rent. §12 DURATION OF THE TERM. 65 a statute would seem to be to substitute in certain cases a tenancy for years for what might otherwise be a tenancy at will or a periodic tenancy. (d) Inconsistent limitations. It has been decided that when the commencement and duration of the tenancy are clearly stated, an inconsistent statement as to the date upon which it will come to an end will be disregarded as being the result of mistake.^** Thus a hiring at a monthly rent is presumed to be for one month. In the absence of any agreement re- specting the length of time or the rent, the hiring is presumed to be monthly). See .Ga.l)el v. Page, 6 Gal. App. 618, 92 Pac. 749. Conn. Gen. St. 1902, § 4043 (Parol leases reserving monthly rent, in which the time of termination is not agreed on, shall be construed to be leases for one month only). See Corbett v. Cochrane, 67 Conn. 570, 35 Atl. 509. Del. Rev. Code 1893, p. 866, § 2. (If no term expressly limited, demise shall be construed as for a year). Ga. Code 1895, § 3132 (where no time specified for the termination of the tenancy, the law construes it to be for the calendar year, but if it i3 expressly a tenancy at will, then either party may terminate it at will). Iowa Code 1897, § 2991. "In case of tenants occupying and culti- vating farms, the notice must fix the termination of the tenancy to take place on the first day oi March, except in cases of mere croppers, whose leases shall be held to expire when the crop is harvested; if the crop is corn, it shall not be later than the first day of December, un- less otherwise agreed upon"). It was held that under this statute the tenant who has husked his com can- not thereafter pasture his cattle on the stalks. Kyte v. Keller, 76 Iowa, 34, 39 N. W. 928; Tantlinger v. Sul- livan, 80 Iowa 218, 45 N. >W. 765. 2 N. J. Gen. St. p. 1924, § 37 (When no term is agreed upon and the rent is pa,yable monthly, so long as the tenant pays the rent agreed, it shall be unlawful for the landlord to dis- possess the tenant before the first day of April succeeding the com- mencement of the letting without giving the tenant three months' notice to quit). N. Y. Real Prop. Law, § 202 (An agreement for the occupation of real property, in the city of New York, not particularly specifying the duration of the occu- pation, shall be deemed to continue until the first day of May next after the possession commences under the agreement). A tenancy expressed to be at the will of either party was held not to be within the statute. Jennins v. McCarthy, 40 N. Y. St. Rep. 678, 16 N. Y. Supp. 161. See, also, Hebberd v. Mayo, 97 N. Y. Supp. 396. N. D. Rev. Codes 1905, §i 5529, 5530. (Same as Cal. Civ. Code, §§ 1943, 1944, supra, omitting "and dwelling houses" and "or a dwelling house"). S. D. Civ. Code 1903, §§ 1435, 1436 (same as North Dakota). "1 Biddle v. Vandeventer, 26 Mo. 500; Nindle v. State Bank, 13 Neb. 245, 13 N. W. 275. In Siegel, Cooper & Co. v. Colby, 176 111. 210, 52 N. E. 917, the lease was expressed to be for a term to commence January 1, 1886, to run until December 31. 1889, but it pro- L. and Ten. 5. 66 TENANCY FOR YEARS. § 12 In one case, however, it was held that under such circumstances the lessee had the option to elect between the two dates>*2 And elsewhere it has been said that in case of doubt the construction of the lease in regard to the duration of the term must be in favor or the tenant.^*^ If the limitations of the lease be divisible, and by part thereof a term is set forth with certainty while the rest are uncertain, the lease will, it has been decided, be upheld as to the latter. So it has been held that if a man grant another a lease for ten years with a provision that if, at the end of every ten years, the grantee shall pay the lessor a certain quantity of tiles he shall have a perpetual demise from ten years to ten years continually follow- ing, this is a good lease for ten years and bad as to the balance.^** And a lease to hold for one year, and so for two or three years, or such term as the parties should think fit, was held to be for a year only.^*" Likewise, in the case of a lease for a year with provision that it should run so long as the parties should agree, and that when the parties failed to agree the lessor should have immediate possession, it was held that the lessee had no right to hold after the year against the will of the lessor.^^^ But in one case it was held that, on a construction of the whole instru- ment, a lease in terms to run from a day named to the correspond- ing day in the next year, with a provision that if either party elected to terminate the lease the party so electing should give six months' prior notice, the latter provision was controlling, and such notice was necessary to terminate it at the end of the first or any subsequent year.^*'' The rule above stated, that if a term is clearly defined other ambiguous limitations in the lease should be disregarded, might, it is conceived, have been advantageously applied in certain cases Tided for a total rental of $36,000, "2Murrell v. Lion, 30 La. Ann. to be paid in equal monthly Instal- 255. ments of $1,000, and allowed the us Com. v. Sheriff, 3 Brewst. (Pa.) lessee to renew from January 1, 1889. 537. A renewal was actually granted, re- 144 Say v. Smith, Plowd. 271; citing that It was to begin Decern- Gwynn v. Mainestone, 3 Car. & P. 302, ber 31, 1889. It was held that the 145 Harris v. Evans, Amb. 329. intention was in the first place to i48 Dunph,y v. Goodlander, 12 Ind. make a lease to expire December 31, App. 609, 40 N. E. 924. 1888, and that the renewal was then 147 Brady v. Flint, 23 Neb. 785, 37 to take efeect. N. W. 647. § 12 DURATION OF THE TERM. 67 in which a lease, which after limiting a certain term gave a "right of refusal" to the lessee for further like periods, was apparently held to create a succession of terms, each term to commence upon the expiration of the previous term, until the parties or one of them indicated an intention to the contrary.^*® Such a con- struction placed upon the language of the demise seems in effect to involve the creation of a periodic tenancy terminable without the notice ordinarily required in the case of such a tenancy, and should, it is conceived, be adopted only when the intention to that effect is clearly apparent. The rule referred to might also have been applied, it seems, to leases limiting a term and also providing that the lessee might retain possession so much longer as he desired, which were, however, construed to allow him to retain possession after the term.i** Such a result could be 14S In Drinkard v. Heptinstall, 55 rent," and it -was held that if the W. Va. 320, 47 S. E. 72, it was held tenant remained in possession after that a lease for a term, "with the re- the first year he could be turned out fusal of said premises from month to at the end of the second year with- month thereafter so long as said out any notice to quit, his continued (lessee) may desire to occupy said holding being "a new tenantry for an- premises," diti-«QL_create a periodic other year, and not from year to tenancy after the endoT^thfe term, year." In one part of the opinion but merely gave to the lessee the the court seems to think that the right to the property so long as the tenant's continued holding was un- lessor continued to lease it, and that der the lease, and in another that the lessee's "term ends with his it was under the lessor's subseciuent month each time, unless it is re- consent to his continuance in pos- newed by the assent of the parties, session. But it is impossible from expressed or implied, and no notice the opinion to form a clear idea of to quit is necessary." Crawford v. what the court did mean. It would Morris, 5 Grat. (Va.) 90, is cited, but have been a simple, and, it is sub- that case merely decided that a mitted, a correct solution of the diffi- "preference" to the lessee as to culty to regard the provision in the future leases after the term created lease for a continuance of possession by the lease did not make it a ten- if the lessee "suited" the lessor, and ancy from year to year. they could agree on rent, as abso- In Whetstone v. Davis, 34 Ind. 510, lutely nugatory, in which case the a lease provided that the tenant holding by the tenant after the first should have the premises for one year, if consented to by the lessor, year from a date named "and to would have been at will or as a have the privilege of said farm two periodic tenant, or three years, if said farm is for "o Sweetser v. McKenney, 65 Me. rent, if (the lessee) suits (the les- 225; Holley v. Young, 66 Me. 520. sor), and they can agree on said See post, chapter XXII. 68 TENANCY FOE YEARS. § 12 obtained, it seems, onJy by regarding tiie lessee as having a free- hold estate, the effect of which would be to render the limita- tion of a term absolutely nugatory. (e) Oral evidence. In accordance with the general rule that extrinsic evidence is inadmissible to contradict a writing, it is not admissible to show that the intention was to limit a term other than that actually named in the instrument of lease.^^** If, how- ever, no term is named in the writing and the statute of frauds does not apply, there is, it seems, no objection to showing by oral testimony the length of the intended term.^^i In the ease of an oral letting, if the evidence as to the intended duration of the term is conflicting, the question is properly left to the jury.152 (f ) Lease covering separate tracts. Occasionally the question has arisen, in connection with a lease which covered different tracts of land and contemplated the breaking or clearing thereof and the taking of a certain number of crops therefrom, whether the lease was to terminate as to all the tracts at one time, and it has been held, on a construction of the terms of the particular instrument, that it was so intended.^^* d. Contingent expiration — Special limitation. The tenant's estate for years, like a life estate,^^* may be subject to a "special limitation," or, as it is sometimes called, a "conditional limita- tion," by which such estate may come to an end before the regu- lar end of the term upon the happening of some contingency.^^' So a lease may be made for a certain number of years, if the lessee 150 Doe d. Spicer v. Lea, 11 Bast, And see Humplireys v, Franks, 18 312; Keegan v. Kinnaire, 12 111. App. c. B. 323. 484j Elizabeth Town Law Inst. v. 153 Dodson v. Hall, 58 Tenn. (11 C«nroy, 4 N. J. Law J. 189; Wheeler ^^.^^^ ^gg^ g^g. ^^^^.^ ^ jackson, V. Cowan, 25 Me. 283; Equitable Life ^^ ^^^ 3^^ ^^ ^^^^^^ ^ ^^^^^^^ Assur. See. V. Schum, 40 Misc. 657. 83 N. Y. Supp 161. 1°« ^^- 34^. 32 S. E. 94; Perkins y. If the lease is expressed to be for Peterson, 110 Ga. 24, 35 S. E. 319. a term, it cannot be shown that it ^°*Ante, § 11 b. was intended to be from month to 1=5 See 1 Tiffany, Real Prop. § 78, month. Dodd v. Pasch, 5 Cal. App. as to estates on special limitation. 686, 91 Pac. 166. As to the distinction between a spe- 151 Reynolds v. Davidson, 34 Md. cial limitation and a condition, see 662. post, § 194 c. i52Kerwin v. James, 43 Ga. 397. § 12 CONTINGENT EXPIRATION. 69 lives so long,i56 if another person lives so long/^T if B shall continue parson of Dale,"8 if the lessee,!^^ or his licensee, being of a specified character,^®" continues to occupy the premises, or if the lessee continues in the lessor's serviee,i6i and in such cases the tenancy will come to an end before the expiration of the term named, in case the lessee or other person dies, removes from the premises, or leaves the lessor's employment as the case may be. Further examples of such a limitation occur in the case of a lease for years to cease on condemnation of the premises for pub- lic use,i^2 ujitil machinery on the premises breaks down,i63 or 16G Co. Litt. 45 b, 214 b; Hughes' the service owing to the lessor's Case, 13 Coke, 66. death, this not being the fault of the A lease "for the space of twenty lessee. This seems questionable, years, or during our (the lessees') Morris Canal & Banking Co. v. natural lives," was construed to be Mitchell, 31 N. J. Law, 99, and Mc- a lease for twenty years, provided Gee v. Gibson, 40 Ky. (IB. Mon.) the lessees lived so long, the tenancy 105, are to the effect, it seems, that coming to an end if they should die in the case of a lease to an employe, before the expiration of the twenty a special limitation is to be implied, years, and not a lease for twenty terminating the tenancy on cessation years In any case, and, if the lessees of the employment. In the first lived longer, during their lives. Sut- named case no term appears to have ton V. Hiram Lodge, 83 Ga. 770, 10 S. been mentioned, and the decision is B. 585, 6 L. R. A. 703. based partly on the fact that the 107 Handle v. Lory, 6 Adol. & E. em-ploye knew that the lessor's em- 218. ployes were always required to leave 158 Sheppard's Touchstone, 274. on the termination of the employ- 159 Doe d. Lockwood v. Clarke, 8 ment. East, 185. See Hardy v. Seyer, Cro. i«2 Munigle v. City of Boston, 85 Eliz. 414; Sawerv. Hardy, Owen, 107. Mass. (3 Allen) 230; Kohl v. U. S., The tenancy will terminate even 91 U. S. 367, 23 Law. Ed. 449. tf the cessation of occupation is In Pinckney v. Ba,y, 41 N. T. St. caused by a sale under legal pro- Rep. 676, 16 N. Y. Supp. 433, it was cess. Doe d. Lockwood v. Clarke, 8 held that a lease of property abutting East, 185. on an ungraded street, which pro- 160 Kehoe v. Marquess of Lans- vided that it should terminate in downe [1893] App. Cas. 451. case 'the city took possession of the 181 Marmet Co. v. Archibald, 37 W. street for purposes of improvement, Va. 778, 17 S. B. 299; Wrenford v. did not come to an end because the Gyles, Cro. Eliz. 643. In this latter city, without the passage of any grad- case a majority of the judges held ing ordinance, removed a fence that, in the case of a lease to one, which obstructed the street and so long as he continued in the les- dumped dirt and refuse there, sor's service, the tenancy did not les Scott v. Willis, 122 Ind. 1, 22 terminate by reason of the ending of N. E. 786. 70 TENANCY FOR YEARS. § 12 until the dissolution of a partnership to which the lessor and lessees are parties. ^^^ When the lease is made for a named number of years to two persons, if they shall live so long, or to A for so many years, if he and B shall live so long, or, if the lessor and J iS shall live so long, in all these cases, it is said, the death of .either of them term- inates the lease, because their lives are the collateral measure and limitation of the continuance of the term, and this differs from a lease to two persons for their lives, for this gives an estate to both for their lives and both have an estate of freehold therein in their own right.^®^ e. Option in the lessor to terminate — (1) Particular stipu- lations. Not infrequently the lessor is given the right to term- inate the tenancy before the expiration of the term named, such a right being sometimes absolute in character, and sometimes authorizing him to ter'minate only for some particular reason,!^^ as when he desires the land for building purposes,!^'^ or when he has sold the land,^®** because it has become unfit for occupation,^®'' or because of the use made of the premises by the lessee.^'^o A right to terminate, otherwise absolute • in character, may be restricted as regards the time at which the right may be exer- cised.!''! 164 Russell v. McCartney, 21 Mo. (Bro. Abr., Lease, pi. 13) recognized App. 544; Doe d. Waithman v. Miles, in Bac. Abr., Leases (L) 3, that "if 1 Starkie, 181. one makes a lease for ten years at A lease by one partner to the mem- the will of the lessor, the word "will" bers of the firm tot partnership busi- is void, for it is repugnant to the ness comes to an end, it has been de- lease." In Morton v. Woods, L. R. 4 cided, upon a dissolution of the firm, Q. B. 293, Kelly, C. B., referred to without, it seems, any express pro- this dictum' without approval or dis- vision to that effect. Doe d. Col- approval, holding it inapplicable to naghi v. Bluck, 8 Car & P. 464 ; John- the particular facts. See post, § 13 a son v. Hartshorne, 52 N. Y. 173. (1). 105 Bac. Abr., Leases (L) 4. i"? See post, notes 174-176. ise See Pratt v. Paine, 119 Mass. "s See post, § 12 e (3). « ' 439 ; Lord v. Walker, 49 Mich. 606, 14 i69 Hunnewell v. Banks, 161 Mass. N. W. 564; Ex parte Miller, 2 Hill (N. 132, 36 N. E. 751. Or in case of dam- Y.) 418; Loddiges v. Lister, 1 Law age by fire. Browning v. Garvin, 48 T. (N. S.) 548; Liddy v. Kennedy, L. App. Div. 140, 62 N. Y. Supp. 564. R. 5 H. L. 134. See post, § 182 m (6) (d). The cases recognizing such a right i7o Schwoerer v. Connolly, 44 Misc. in the lessor would rather seem to 222, 88 N. Y. Supp. 818. overrule the dictum of Brooke, J. iti As when there was an option § 12 OPTION TO TERMINATE. 71 A clause giving the landlord a right to terminate the tenancy whenever he should deem the tenancy undesirable has been held to entitle him to terminate it without stating why he deems it undesirable.i'^2 Qq ^^e other hand, a clause authorizing him to terminate it when he shall have use for part of the premises has been regarded as authorizing its termination only when he needs it for his own purposes, and not in order that he may lease to another.i'^3 A provision allowing the lessor to terminate the tenancy if he wishes the land for rebuilding obviously does not apply if he wishes the land for some other purposes,!'^* and when the lease gave the landlord the right to the possession if he needed the > premises for building, it was held that equity would restrain an action at law by him to recover the possession on his mere statement that he wanted it without any showing that he did want it.^'^' It has been decided that, in such case, the tenant is entitled to a reasonable notice of the landlord's inten- tion to build, and that, if the latter enters and builds without such notice, he is guilty of trespass.!'''^ A provision that if either of the parties should see fit to term- inate the lease before its expiration he shall pay a sum named has been held to authorize either party to terminate it by paying in either party to terminate "at the ises would not be needed for some expiration of one year on sixty days' time. notice." The lease could be term- m HodgKins v. Price, 137 Mass. 13. inated' only at the end of the first its Russell v. Coggins, 8 Ves. Jr. 34. year by notice given sixty days be- jn do^ j Wilson v. Abel, 2 Maule fore. Fine Realty Co. v. City of New & §_ 541. jt was decided that, where York, 53 Misc. 246, 103 N. Y. Supp. the lessee covenanted that if thfl 115. lessor should be desirous of taking 172 Manhattan Life Ins. Co. v. Gos- any part of the land for building, it ford, 3 Misc. 509, 23 N. Y. Supp. 7. should be lawful for him to enter 173 Woodland Cemetery Co. v. Car- on all or any part of the land to Till, 9 Leg. Int. (Pa.) 98. build and to do all such acts as In Donahue v. City of New York, might be necessary, the lessor might 54 Misc. 415, 105 N. Y. Supp. 1069, resume possession of the whole land an injunction was issued to prevent for the purpose of building, and the city lessor from terminating such that the covenant was not merely a lease made by it, it appearing that that the lessor might go on the land the contemplated improvement was with materials and workmen for the merely planned, and that, even It purpose of building, immediately begun, the leased prem- i7e Shaw v. Hoffman, 25 Mich. 162. 72 TENANCY FOR YEARS. § 12 such sum.^'^ And the same construction has been placed on a provision that "if the lessor requires the premises before the term expires, he is to pay" a sum named to the lessee "for possession, otherwise, should the lessee require to leave before the term, he is to pay" a like sum>'^* A stipulation which gives the lessor power to terminate the tenancy or to resume possession as to "any part" of the premises gives him such power as to the whole,^^^ and it is immaterial that the lease, in stipulating for . a reduction of rent in a certain sum per acre for such part as may be resumed, names such a sum that the whole rent might be gone although the whole of the land is not resumed.^ *<> But a stipulation in general terms does not authorize the termination of the tenancy as to part of the premises.181 There is in one state a decision that a municipality which has leased to an individual the municipal waterworks for a certain time may, without any provision to that effect in the instrument of lease, put an end to the tenancy on account of the drunkeness and incapacity of the lessee.^^^ This in effect involves the infer- ence of a special limitation to that effect from the circumstances of the ease. The decision is difi&cult to support on any recog- nized principle. In one case a provision that if the lessor failed to furnish sufficient power the lessee should have the right, on giving thirty days ' notice, to declare the lease at an end, was construed to give the lessor thirty days after notice in which to furnish such power, after which period the lessee would have a reasonable time for the removal of his property.^^^ (2) Theory of operation. Occasionally a stipulation that the lessee shall give up possession upon demand or notice from the lessor has been construed as a covenant merely, giving a right of action for damages to the lessor in case of breach, but not in Small V. Clark, 97 Me. 304, 54 i** Llddy v. Kennedy, L. R. 5 H. L. !4. 181 Doe d. Rodd's Lessee v. Archer, Atl. 758. ^^*' ITS Bckhardt v. Raby, 20 XJ. C. Q. B. 14 Bast, 245. 182 Mahon v. City of Columbus, 58 i7»Dae d. Gardner v. Kennard, 12 jjigg gj,,, 38 Am. Rep. 327. Q. B. 244; Doe d. Wilson v. Abel, 2 isa Channel v. Merrifleld, 206 111. Maule & S. 541. 278, 69 N. E. 32. § 12 OPTION TO TERMINATE. 73 any way affecting the estate of the lessee.i^* In other cases a stipulation that the lessee should relinquish possession upon demand of possession by the lessor or upon some particular con- tingency within the lessor's control has been regarded as entit- ling the lessor to recover possession upon the making of the demand or the happening of the contingency .^^^ And the view has also been taken that if the provision for the relinquishment of possession by the lessee on demand was accompanied by a provision that the lessor might then take possession, the lessor was authorized to maintain ejeetment.*^^ In several cases it has been decided that the stipulation in question was a covenant within the statute of 32 Hen. 8, c. 34,i8^ so that the benefit thereof would pass with the reversion, but it was at the same time in effect decided that the transferee might maintain pro- ceedings for possession by reason of the stipulation.i^s Properly speaking, a mere covenant could not give a right to maintain such proceedings.^*^ Assuming that the stipulation for the termination of the ten- ancy is not to be regarded as a mere covenant on the part of the lessee to give up possession, but as enabling the landlord to terminate the tenancy by a notice to that effect, the principle upon which such a stipulation operates is not clear. Occasionally the assertion by the landlord of his desire to resume possession is regarded as terminating the tenancy by way of a special limi- tation to that effect,^^" and the theory of a special limitation has 184 Doe d. Wilson v. Phillips, 2 case did not provide that the lessor Bing. 13; Dennison v. Read, 33 Ky. might tafee possession. (3 Dana) 586; Wheeler v. Dascomb, ist See post, § 149 b (1). 57 Mass. (3 Cush.) 285; Sloan v. iss Roberts v. McPherson, 62 N. J. Cantrell, 45 Tenn. (5 Cold.) 571; Law, 165, 40 Atl. 630; Id., 63 N. J. Bergland v. Frawley, 72 Wis. 559, 40 Law, 352, 43 Atl. 1098; Douglaslon N. W. 372. Realty Co. v. Hess, 124 App. Div. 185 Eckhard v. Raby, 20 TJ. C. Q. 508, 108 N. Y. Supp. 1036; Hadley v. B. 458 (semble); Baxter v. City of Bernero, 97 Mo. App. 314, 71 S. W. Providence (R. I.) 40 Atl. 423; Man- 541; McClung v. McPherson, 47 Or. hattan Life Ins. Co. v. Gosford, 3 73, 81 Pac. 567, 82 Pac. 13. Misc. 509, 23 N. Y. Supp. 7. i89 See post, § 194 b. 188 Doe d. Gardner v. Kennard, 12 i9o Manhattan Life Ins. Co. v. Q. B. 244, distinguishing Doe d. Will- Gosford, 3 Misc. 509, 23 N. Y. Supp. son V. Phillips, 2 Bing. 13, on the 7; CotUe v. Sullivan, 8 Misc. (N. Y.) ground that the lease in the earlier 184. 74 TENANCY FOR YEARS. § 12 been adopted when the provision was that the lessee should sur- render possession upon a sale by the lessor,' ^i or that the lessor might terminate the lease by giving sixty days' previous notice in ease he should sell/^^ ^j^q tenancy thus coming to an end, in the one case, upon a sale, and, in the other, upon a sale and the expiration of the notice. And the same construction has been put on a provision that in a certain contingency the lessee "agrees to cancel the lease. "i** In a case in the highest court of England,'^* two of the members thereof appear to have re- garded a clause declaring it lawful for the lessor, upon giving to the lessee three months' previous notice of an intention to resume possession for building purposes, to enter into possession, as in the nature of a clause creating a power of revocation in the les- sor,i85 while another member thereof appears to have regarded it as in the nature of a clause of re-entry enforcible by ejectment without any actual entry .1^* But there are occasional decisions 191 Baxter v. City of Providence observe that the proviso goes on to (R. I.) 40 Atl. 423. give the remedy consequent upon 192 Miller v. Levi, 44 N. Y. 489; that notice, namely, that it shall he Ronginsky v. Grantz, 39 Misc. 347, lawful for the lessor, his heirs and 79 N. Y. Supp. 839. assigns to enter into the land de- ists Bruder v. Geisler, 47 Misc. 370, scribed in the notice. The eject- 94 N. Y. Supp. 2. ment brought by the landlord, and 191 Liddy v. Kennedy, L. R. 5 H. the remedy of the landlord, are there- L. 134. fore remedies not to be attributed 195 Lord Chelmsford says: "What to the general powers of a condi- is the character of the clause in tion of re-entry, but are to be at- question? Is it a condition, is it a tributed to the special power given covenant, is it an agreement, or is by this particular reservation." It (which appears to be more clearly i9e Lord Hatherley says: "When a description of it) a power which is you find a power In the lessor to re- agreed upon between the parties that sume possession for building pur- the lessor shall possess, of determ- poses on giving notice, and the effect ing the interest of the tenant, and of that notice is to declare it lawful resuming possession on giving no- for him, the lessor, his heirs and tice," and later he speaks of "the assigns, to enter into possession, the power or condition or whatever it necessary conclusion is that posses- may be called." Lord Westbury sion shall be delivered up by the ten- says : "In this lease there is a pro- ant from the moment of the condition viso entirely collateral to the de- being fufilled which is to give to the mlse. It is a proviso enabling the lessor the right of resuming posses- lessor, on giving a certain notice, to sion. The lessor, by giving that resume possession of any part of notice, and by asserting his right by the land; and it is most material to action of ejectment, does what is § 12 OPTION TO TERMINATE. 75 that such a clause is not one of re-entry.^®'!' As appears from the cases above referred to, the courts have not followed, nor even asserted, any general rule as to the theory of operation of a provision empowering the landlord to terminate the tenancy, and it may perhaps be said to be a question of the construction of the particular language in each case. The par- ticular language used, however, has, in the adjudications, been but slightly adverted to, the courts having been apparently gov- erned rather by consideration of what they regarded as desirable under the circumstances of the caSe. A mere agreement by the lessee to give up possession upon demand by the lessor, or upon a certain contingency within the latter's control, does not seem readily susceptible of construction as a limitation or a condition, giving the lessor a right to recover possession rather than dam- ages. But if the language of the lease is susceptible of such construction, there is, it seems, on principle, no objection to con- struing it as creating a special limitation upon the contingency of the lessor's exercise of his volition to terminate the tenancy, indicated either informally or in the manner specified, as by notice, or merely by a particular disposition of the property, such as a sale. If the tenancy, however, is limited to terminate upon a sale, it must so terminate without reference to the landlord's wishes in that regard. It would seem, therefore, to the advantage of the lessor to provide that the tenancy shall come to an end upon a sale or upon some other contingency named only when a notice of the lessor's desire, or of the vendee's desire, to that effect is given to the lessee. If the language is construed as giv- ing the lessor merely a right of re-entry upon the lessor's notifi- cation of his desire to end the tenancy, the tenancy would con- tinue until the right is legally enforced.i** equivalent in law to entry, and es- for some purposes, a power of revo- tablishes his right to recrover posses- cation operating even by force of the sion through the medium of eject- statute of uses has been assimilated ment." to such a condition. See Chance, There is, no doubt, a considerable Powers, § 279; Sugden, Powers (8th resemblance between a power of re- Ed.) 363. vocation, created in connection with i97 Miller v. Levi, 44 N. Y. 489; an estate for years, which can oper- Manhattan Life Ins. Co. v. Gosford, 3 ate at common law, apart from the Misc. 509, 23 N. Y. Supp. 7. statute of uses, and a common-law "s See post, § 194 d. condition of re-entry, and indeed. In Millan v. Kephart, 18 Grat. 76 TENANCY FOR YEARS. § 12 The question as to the mode of operation of the stipulation for the termination of the tenancy at the lessor's option might have a bearing on the question whether a transferee of the lessor is entitled to the benefit of such an option. If it be regarded as a covenant, such transferee would seem to have the right to de- mand the performance of the covenant as of any other covenant affecting the land,^®^ and it has apparently been so decided.^o" And it would also be enforcible against an assignee of the lessee. In the English case above referred to in the House of Lords, one of the members of the court, who apparently regarded the clause as creating a "power," said that it is "a thing taken out of the demise by the individual owner who makes the demise, and it is, therefore, a thing incidental to the estate vested in him, and passes with that estate to his grantees or alienees of the rever- sion. "201 jjj ^jjat case, however, the right of the lessor, after having transferred his reversion in part of the land, to join with his transferee in giving notice of an intention- to resume pos- session, and in enforcing their right to possession, was supported under a local statute giving every landlord the same remedies as the original lessor upon the agreements contained in the lease. Ordinarily, a power of disposition or of revocation is personal and cannot be transferred.^''^ There are other cases in which the right of a transferee of the lessor's reversionary estate to exercise the option to terminate has been recognized, without, however, any clear statement of the theory on which this is to be regarded as based.^os In two cases the right of the lessor so to (Va.) 1, it ■was decided that, the 541; McClung v. McPherson, 47 Or. instrument of lease having been de- 73, 81 Pac. 567, 82 Pac. 13. But see stroyed, it was a question for the ante, at note 189. jury whether a stipulation for re- 201 Lord Westbury in Liddy v. Ken- linquishment of possession by the nedy, L. R. 5 H. L. 152. lessee was a collateral limitation, a 202 See 1 Tiffany, Real Prop. | 2&2. condition, or a covenant A ques- 203McDanlel v. Callan, 75 Ala. 327; tion more unsuited for decision by a Aydlett v. Pendleton, 114 N. C. 1, body of laymen could not readily be ig g ^ 971. j^g ^ Baneford v. Hay- ^°^^^- ley, 12 East, 464. In the latter case 199 See post. § 149. it was held to be exercisible by a 200 Roberts v. McPherson, 62 N. J. devisee of the lessor, though in terms Law, 352, 43 Atl. 1098; Hadley v. given only to the lessor, "his execu- Bernero, 97 Mo. App. 314, 71 S. W. tors or administrators." Law, 165, 40 Atl. 630; Id., 63 N. J. In McCllntock v. Loveless, 5 Pa. § 12 OPTION TO TERMINATE. 77 do after having made a conveyance has been denied.^* A provision of this character has been decided to be enforcible against an assignee of the lessee.^"^ In one case it was held that where the lessor was given the right to terminate the tenancy on paying the value of the tenant 's improvements, and the leasehold had been assigned and reassigned with the result that the lessor was uncertain as to who was entitled to payment of the sum, the lessor, having given the stipulated notice to the original lessee before the assignment by the latter, might implead the various claimants of the leasehold, tendering in court the value of the improvements, and so obtain an adjudication that the tenancy was terminated. 206'207 The lease in this case contained a provi- sion that its covenants and agreements should be succeeded to by and be binding upon the respective assigns of the parties. In any case in which the provision for the termination of the leasehold estate at the lessor 's option can be construed as a special limitation, it would obviously operate as against such estate in the hands of an assignee of the lessee as well as in the hands of the lessee himself. As regards the rights of a transferee of the lessor, a special limitation terminating the leasehold at the option of the "lessor" might, it seems, be qixite readily construed as terminating it at the option of the lessor or of one substituted in his place by means of a transfer by him. (3) In case of sale. A provision empowering the landlord to terminate the tenancy on making a sale of the premises, or Dist. R. 417, it was held that such 49 N. Y. Supp. 1021; Small v. Clark, a provision did not enure to the ben- 97 Me. 304, 54 Atl. 758. eflt of the lessor's transferee, since 205 Aydlett v. Pendleton, 114 N. C. it was not a covenant or condition, 1, 18 S. E. 971. but a "reservation," and should be So in Douglaston Realty Co. v. strictly construed. It is certainly Hess, 124 App. Div. 508, 108 N. Y. not a "reservation" in the common- Supp. 1036, where the termination by law meaning of the term. sale was conditioned on payment of In Adler v. Liowenstein, 52 Misc. compensation for the tenant's re- 556, 102 N. Y. Supp. 492, It was held pairs and improvements. There ref- that the right to cancel passed to a erence is made to the fact that the grantee of the lessor, partly for the covenant was in terms binding on reason, it seems, that it was stipu- the lessees "legal representatives," lated that the agreements of the and hence bound assigns, lease should be binding "on the par- 206, aw Estabrook v. Stevenson, 47 ties and their legal representatives." Neb. 206, 66 N. W. 286. 204 Griffin v. Barton, 22 Misc. 228, 78 TENANCY FOR YEARS. § 12 -providing that siich a sale shall have the effect of terminating the tenancy, is quite frequently found.^"* That a sale shall have the effect of terminating the tenancy has been inferred from the presence of a stipulation for damages in case the lessor sellSj^"* and even, it seems, from a clause reserving the right to sell.^^'' In one case, however, it was decided that a provision for payment by the lessor of the value of the lessee's improve- ments in case of sale did not involve any right to regard the tenancy as terminated by a sale.^^i An oral stipulation,terminating the tenancy on a sale of the reversion, cannot be shown to alter the terms of a written lease.212 We have before referred to the question of the mode in which such a clause shall be construed as operating, a question upon which the authorities give but little satisfaction.^i^ '^q -will here state a few cases in which the courts have decided whether, in the particular case, the provision operated to terminate the ten- ancy without reference to the landlord's desire in that regard. In one case it was held that where the term was limited to end on a sale of the premises, the term came to an end on such sale, so as to entitle the lessee to the stipulated compensation for his loss of the balance of the term, though the purchaser was willing to continue the lessee as tenant.^^* But on the other hand it has been decided that the lessee could not claim the benefit of a pro- vision that in case of sale the landlord should give sixty days' notice and should return a deposit made to secure rent, and should pay a sum named to the tenant, the lessor having a right to sell 208 Harrison v. Pinkney, 6 Ont. 210 Wallace v. Bahlliorn, 68 Mich. App 225; Jochen v. Tibbels, 50 Mioh. 87, 35 N. W. 834. And see Callaghan 33, 14 N. W. 690. And see, as to v. Hawks, 121 Mass. 298. provisions for compensation to the 211 Randolph v. Helps, 9 Colo. 29, lessee, post, § 12 e (5). 10 Pac. 245. In Newell v. Magee, 30 Ont. 550, it 212 Randolph v. Helps, 9 Colo. 29, was held that, in a provision that 10 Pac. 245. if the place were sold, the lessee 213 See ante, § 12 e (2). would give up possession at the end 214 Morton v. Weir, 70 N. Y. 247. of any year and allow any incoming j^n,j ^ee Cliilds v. Skillin, 39 Misc. "tenant" to plough the land after §25, 81 N. Y. Supp. 348. harvest, the word "tenant" includ- in Buhman v. Nickels & Brown ed purchaser. Bros., 1 Cal. App. 266, 82 Pac. 85, it 200 Johnston v. King, 83 Wis. 8, was held, that under a provision that, 53 N. W. 28. In case of sale, the lessee would quit § 12 OPTION TO TERMINATE. 79 subject to the tenancy if he so desired.^i^ In another case it was decided that a provision that the lessee should give posses- sion at the end of the then current year, in case the lessor should sell, did not terminate the tenancy on such sale, since it might be waived by the lessor, and that a relinquishment of possession would have to be made and accepted, or at least demanded, in order to terminate the tenancy .^^^ And a provision for relin- quishment of possession by the lessee in case of sale, on being paid a reasonable valuation for the unexpired term, was held not to terminate the tenancy upon the making of a sale and con- veyance, so as to entitle the lessor to possession, the reasonable valuation not having been paid.^i^ The question might arise whether, under a provision for the termination of the tenancy upon a sale and notice of a certain period, the landlord may, by refraining from giving the notice, continue the tenancy after the sale, but there appears to be no reported case in which this question is considered. Aprovisidn that "this lease will expire after three years from" its date "if the leased property is sold" was construed as pro- viding for the expiration of the lease at once on the sale of the property, if this took place after the three years, and not as providing that if a sale took place during the three years the lease should come to an end at the end of that period.^^^ Under a provision that the lessee should vacate within a reasonable time after sale, a notice of sale given on the twenty-third day of April, and surrender the premises upon his "desire to terminate the lease and thirty days' .written notice, such repossess the" premises, and that sale terminated the lease. "thereupon" the lease might be term- 215 Foley V. Constantino, 43 Misc. inated "in the following manner," 91, 86 N. Y. Supp. 780. And in Cal- and then provided that the parties laghan v. Hawbes, 121 Mass. 298, should choose arbitrators to de- it was decided that a clause giving termine what damages should be the lessor a right to sell on giving paid on account of such termination, two months' notice did not preclude the notice terminated the lease be- a sale without notice, subject to the fore any: arbitration, it being evi- lease. dently intended that the act of the 216 Dudley v. Estill, 6 Leigh (Va.) lessor alone should be effective to 562. terminate the tenancy. Smith v. 21T McDaniel v. Callan, 75 Ala. Rasin, 84 Md. 642, 36 AU. 261. 327. But where the lease provided aisHickox v. Seegner, 123 Wis. that at a certain point in the term 128, 101 N. W. 357. the lessor might notify the lessee of 80 TENANCY FOR YEARS. § 12 requiring the lessee to vacate on the first of June, was regarded as allowing a reasonable time.^^^ An oral agreement for sale, not complying with the statute of frauds, has been regarded as a "disposing" of the premises within a clause providing that, in such ease, the lessee would vacate.22* A merely colorable sale, that is, a transaction having the out- ward appearance of a sale but which is not intended actually to transfer the beneficial interest, is not within such a stipiilation,^^! and the question whether there is an actual sale, or merely a col- orable one, made for the purpose of getting rid of the lease, is one of fact on the evidence.222 The sale may, it seems, be an actual one within this requirement, even though made to the lessor 's wif e,223 and in the case of a sale by the members of a firm, who had made a lease, the fact that the sale was to one of the firm has been held not necessarily to show it to be otherwise than in good faith, though on a nominal consideration, the character of the consideration bearing merely on the bona fides of the transaction.22i The tenant cannot, it has been held, question the iona fides of the sale if the purchaser offers to continue him as tenant.225 Nor can he object that the conveyance to the 218 Cooper v. GamblU, 146 Ala. 184, There was held to be a sale -within 40 So. 827. There it is stated that such a provision when the lessor con- the "reasonable time" is not to be veyed a life estate to his wife, which dietermined with reference to the she conveyed to a trustee with power time which may be required by the of sale, and he sold under the power, tenant to find similar premises for Aydlett v. Pendleton, 114 N. C. 1, purposes of occupancy. 18 S. E. 971. =M Lumbers v. Cold Medal Fur- 224 Dunn v. Jaffrays, 36 Kan. 408, niture Mfg. Co., 30 Can. Sup. Ct. 55. 13 Pac. 781. 221 Muzzy v. Allen, 25 N. J. Law (1 225 AUenspach v. Wagner, 9 Colo. Dutch.) 471; Ela v. Bankes, 37 Wis. 127, 10 Pac. 802. 89; Budlong v. Budlong, 31 Wash. 228, Where the lease provided that the 71 Pac. 751; Ogle v. Hubbel, 1 Cai. lessees should have a certain sum App. 357, 82 Pac. 217. out of the proceeds if the building 222 See Dunn v. JafEray, 36 Kan. should he sold, and should retake cs?- 408, 13 Pac. 781; Davis V. Schweikert, tain fixtures in the building if it 130 Cal. 143, 62 Pac. 411. should not be sold, but should be 223 See Ela v. Bankes, 37 Wis. 89; demolished at the end of the term, Budlong V. Budlong, 31 Wash. 228, 71 it was held that in the absence of Pac. 751; Davis v. Schweikert, 130 fraud the lessees had no right to Cal. 143, 62 Pac. 411. complain of a sale by the lessor at § 12 OPTION TO TERMINATE. 81 purchaser does not convey a perfect title.^** (4) Notice to lessee. The lessor should, it seems, in any case give notice of a reasonable length of his intention to terminate the tenancy,227 \)^i quite ordinarily there is an express provision for a notice of a certain length. Such a provision must be strictly complied vsrith as regards the time at which it is given,-^^ and it has been held that a provision for a notice of a certain number of days vras not satisfied by a notice requesting the tenant to leave "as soon as practicable. "229 "Where the lease provided that the lessee should vacate if the lessor desired to sell, "upon notice of such desire being given to him, ' ' a notice to deliver possession under the provision of the lease which did not state a desire to sell was regarded as insufficient,^*^ as is obviously a notice given for another purpose with no idea of terminatiug the tenancy. ^so* The person to give the notice is, it seems, the person who has the immediate reversion, whether the original lessor or his trans- feree.231 The notice need not, it has been decided, be served personally as must a statutory notice, a service by mail being regarded as sufficient.232 gut where the lease provided for the giving of notice to "any person in possession of the" premises, a notice served on the tenant's mother, who happened to be on the prem- any price which he might choose to after the time for completion of the accept. Butterworth. v. Bliss, 52 harvesting of the crop, though not Barb. (N. Y.) 430. before. 226 Dean V. Fail, 8 Port. (Ala.) 491. 230 Sloan v. Cantell, 45 Tenn. (5 227 See Shaw v. Hoffman, 25 Mich. Cold.) 571. 162, per Christiancy, J.; Cooper 230a Anderson v. Hebbard, 56 Misc. v. GamWU, 146 Ala. 184, 40 So. 827. 664, 107 N. Y. Supp. 824. 228 Aiken v. Appleby, Morris 231 Cooper v. Gambill, 146 Ala. 184, (Iowa) 8. 40 So. 827; Aydlett v. Pendleton, II4 229 People V. Gedney, 15 Hun (N. N. C. 1, 18 S. E. 971; Griffln v. Barton, y.) 475. But in MitcheU v. Mathe- 22 Misc. 228, 49 N. Y. Supp. 1021. son, 23 Wash. 723, 63 Pac. 564, where But in McClung v. McPherson, 47 the lease provided that in case of Or. 73, 81 Pac. 567, 82 Pac. 13, the sale the lessee should remove on language was construed as calling receiving thirty days' written notice, for a notice by the lessor, and such a notice to remove within thirty a notice was held to be valid though days, "or as soon thereafter as you given after the lessor had trans have completed the harvesting of ferred the property. your crop," was regarded as valid, 2S2 Bloom v. Wainner, 2.5 Ky. Law entitling the lessor to possession. » Rep. 1646, 77 S. W. 930. L. and Ten. 6.. 82 TENANCY FOR YEARS. § 12 ises, was held to be insufficient.^^^ A notice to one of two ten- ants has been regarded as sufficient.^^* (5) Compensation to lessee. The lease, in providing that the lessor may terminate the tenancy or that a sale by him shall have that effect, sometimes stipulates for compensation to the tenant. Where the stipulation is merely for the payment to the tenant of "damages" caused him by the sale he is, it has been held, entitled to the value of the term.^ss Occasionally there is a stip- ulation for the payment to the tenant of a fixed sum as a "bonus" or liquidated damages in case of a sale. When it was stipulated that, on receipt of such sum and on notice of a certain period, the tenant should give up possession, and, on receipt of the notice, the tenant did give up possession, he could, it was held, recover the stipulated sum, although possession was not given until a few days after the date specified in the notice, and though the sale was not carried through. ^^e j^j^^ when it was provided that, if the land was sold, and the purchaser required the lessee to give up possession, the lessor should pay a certain sum to the latter, and a purchaser did so require, the lessor was regarded as liable, although the land was expressly sold subject to the lease.^^^ A provision for a bonus to the lessee in case of sale was held not to apply when the sale was to the lessee himself. ^ss A provision that the lessor may terminate the lease upon paying a sum named does not, it has been held, entitle the lessee to that sum because he is evicted by the lessor 's transferee under the mistaken 233 Baragiano v. Villani, 117 111. When there was, on the lease of a App. 372. sawmill, a stipulation that in case 234 Barrett v. Merchants' Bank, 26 of sale the lessor might terminate Grant. Ch. 409. But Adler v. Low- the lease, and that the lessee should enstein, 52 Misc. 556, 102 N. Y. Supp. have two months in which to finish 492, is apparently contra. sawing the logs on hand, and that 235 Depew V. Ketchum, 75 Hun, if any remained unsawed after the 237, 31 Abb. N. C. 210, 27 N. Y. Supp. two months the lessee should, at the 8. See Taylor v. Trohock, 85 111. 584, lessor's option, have the privilege of for the construction of a particular remaining in possession till the stipulation in this respect. logs on hand were all sawed, or 236 Dierig v. Callahan, 35 Misc. 30, should be allowed the cost of hav- 70 N. Y. Supp. 210. ing the logs sawed at another mill, 237Hazen v. Hoyt (Iowa) 75 N. W. the lessor, by making a sale and de- 647. manding possession, thereby showed 238 Seaman v. Clvill, 45 Barb. (N. his election that the logs should be Y.) 2C7. sawed at another mill, and became § 12 OPTION TO TERMINATE. 83 supposition that the tenancy is one at will, such a clause not being in effect a provision for liquidated damages upon eviction.^^* Occasionally the lease provides for compensation to the tenant for improvements made by him, in case of a termination of the tenancy by the landlord's exercise of an option to that effect or by a sale of the premises,^*'' and questions may arise as to the construction of such language. A provision that, in case the landlord terminated the tenancy under his option so to do, the tenant should be compensated for the loss sustained by expend- itures incurred by him in fitting up the premises was held to entitle him to compensation for furnishings, such as carpets and window curtains, not, however, the entire cost of fitting up but only the loss sustained on account of such expenditures by the abridgement of the term.^^i And when the lease provided that, on a sale terminating the tenancy, the lessee should be entitled to payment for his improvements, the price to be settled by arbi- tration if they could not agree thereon, it was held that upon a sale the lessee 's right to payment became absolute, and he had a right of action against the lessor in ease the latter refused to submit to arbitration.^*^ a provision for compensation to the tenant for his improvements in case of a sale within three years was held not to apply when a mere contract to sell was made within that time, the contract by its terms not to be consumated until after the three years.^*^ A provision that the lessee would vacate on thirty days' notice and that the lessor would pay him for any crops already planted does not entitle him to payment for his crops if he fails to vacate on such notice.^** It has been decided that the tenant is entitled to damages if the landlord, under a stipulation for a termination of the ten- ancy in case of a sale of the premises, obtains possession by a merely colorable sale,^*^ and a like decision was rendered when the lessor had a right to terminate the tenancy if he desired to cease using the land for particular crops, and obtained possession liable for the cost of such sawing. 242 Morton v. Weir, 70 N. Y. 247, Crouch v. Parker, 40 Barb. (N. Y.) 26 Am. St. Rep. 583. 94. 243 Stewart v. Pier, 58 Iowa, 15, 239 Harrison v. Jordan, 194 Mass. 11 N. W. 711. 496, 80 N. E. 604. " 244 Outhouse v. Baird, 121 App. Div. 240 See Estabrook v. Stevenson, 47 556, 106 N. Y. Supp. 246. Neb. 206, 66 N. W. 286. 245 Davis v. Schwelkert, 130 Cal. 241 Pratt V. Paine, 119 Mass. 439. 143, 62 Pac. 431. 84 TENANCY FOR YEARS. | 12 by a notice to the tenant that he so desired, which was proven to be false.2*® Eecovery was in one of these cases based upon the theory that such a fraudulent ouster of the tenant constituted an eviction, 24T b^t it might more properly, perhaps, be regarded as on account of the fraud or deceit involved in such a transac- tion.^*^ It has in one ease been explicitly decided that a false representation, made in good faith by the landlord, that he has sold to another, does not involve an eviction or breach of the covenant for quiet enjoyment.^** f. Option in the lessee to terminate. In several cases a stip- ulation giving to the lessee the right to terminate the tenancy before the regular end of the term has been recognized as valid and enforcible,^^" as has a provision, substantially similar in effect, in terms authorizing the lessee to "surrender" at his own volition.251 In one state, however, such a power in the lessee has been regarded as of questionable validity.^s^ 2*8 Salzgeber v. Mickel, 37 Or. 216, ering them unsuitable for occupation. 60 Pac. 1009. Post, § 182 m, n. 247 Salzgeber v. Mickel, 37 Or. 216, In "Lane t. Nelson, 167 Pa. 602, 31 60 Pac 1009. ^^^- ^^^' ^^ ^^ decided that a pro- 248 In Cowling T. Dickson, 5 Ont. ^^'^^^ ^^'^ *^^ ^^^^^ ^^°''^^ ^""^ ^ App. 549. it was held that, even .f ''^^^^ ,"f* ^'^ ^^^^^ ^^ ^^ ^^''"l'^ "occupy" the premises meant so long as he held under the lease, and did possession in consequence of the ^^t enable him to relieve himself though the tenant did not relinquish landlord's false assertion of a sale he could recover for loss occasioned from liability for rent by relinquish- ing possessroui especially in view of by his consequent failure to plant ^ p^vlsion authorizing either party crops. The case was clearly regard- ^^ terminate tlie tenancy at the end ed as an action for deceit. ^j ^^y y^^^ ^^ ^^^^^ j^^^j^^^g, j^^^j^^ 2« Lumbers y. Gold Medal Fur- 251 Brown v. Fowler, 65 Ohio St. niture Mfg. Co., 30 Can. Sup. Ct. 55. 507, 63 N. E. 76; Goelet v. Spofford, 250 Palmer v. Wallbridge, 15 Can. 55 N. Y. 647; Reich v. McCrea, 37 Sup. Ct. 650; Jenkins v. Clyde Coal N. Y. St. Rep. 620, 13 N. Y. Supp. Co., 82 Iowa. 618, 48 N. W. 970; Den 650; Dierig v. Callahan, 35 Misc. 30, d. Stedman v. Mcintosh, 26 N. C. (4 70 N. Y. Supp. 210; Hooks v. Forst, Ired. Law) 291, 42 Am. Dec. 122; 165 Pa. 238, 30 Atl. 846. Cooke v. Norris, 29 N. C. (7 Ired. A provision allowing the tenant Law) 213; Hendry v. Squier, 126 Ind. to abandon the property and to be 19, 25 N. E. 830, 9 L. R. A. 798 (sem- reUeved of all obligation does not re- ble); Hooks v. Forst, 165 Pa. 238, quire the lease to be cancelled of 30 Atl. -846. And see the cases in- record. Van Meter v. Chicago & 0. volving the right of the lessee to M. Coal Min. Co., 88 iDwa, 92, 55 N. terminate the tenancy on account of W. 106. physical injury to the premises rend- 252 That such a provision render? § 12 OPTION TO TERMINATE. 85 In England a provision authorizing the lessee to terminate the tenancy at any time is most unusual if not unknown, .but it is frequently there provided, in the ease of a lease for a term of years, twenty-one for instance, that the lessee may "break" it at the end of a shorter period, usually seven, or fourteen years, or both, upon giving a specified notice.^^^ Similar in effect is a lease for seven, fourteen, or twenty-one years, it being held that, in the case of such a tenancy for a term of uncertain duration, the option is with the tenant alone,^^* unless it be expressly reserved to the lessor also,^^^ or to either party .25« Such a power to break "if the parties so think fit" cannot be exercised, it has been decided, without the consent of both.^s'' The theory on which such an option in the lessee to terminate is to be regarded as operative is not considered in the eases. It would seem that they must be based on the view that such a provision for the termination of the leasehold interest at the lessee's option is in effect a "special limitation, "*®8 ^e effect being that, without more, his interest expires upon a notice by him that such is his desire, or, if the lease requires a notice of a certain length, upon the expiration of the notice. The right to exercise the option to terminate the tenancy under such a provision vests, it has been decided, in the assignee of the lessee,259 or in his personal representative on his death.^e" The lessee cannot, after he has assigned, exercise the power, even the lease absolutely invalid seems 399; Doe d. Webb v. Dixon, 9 'East, to be tlie opialon of the court in 15; Fallon v. Robins, 16 Ir. Ch. 422; Eclipse Oil Co. v. Soutli Penn Oil Com. v. Sheriff. 3 Brewst. (Pa.) 537. Co., 47 W. Va. 84, 34 S. B. 923. In 2o5Goodright v. Mark, 4 Maule & Reese v. Zinn, 103 Fed. 97, in the S. 30. United States Court for West Vir- zsa Lucas v. Rideout, L. R. 3 H. ginia, it is stated that "the con- ii. 153; Roe d. Bamford v. Hayley, tract is void for want of mutuality," 12 East, 464. citing numerous authorities, none of 257 Fowell v. Tranter, 3 Hurl. & C. YThich appear to support the state- 453. ment, -with the exception of the ease 2D6 See ante, § 12 d. just referred to. 25flHalbert v. Bruce, 9 Ky. (2 A. 253 See e. g., Grey v. Friar, 4 H. L. K. Marsh.) 60; Roe d. Bamford v. Cas. 565; Bury v. Thompson [1895] Hayley, 12 Bast, 464. 1 Q. B. 69^. 260 Roe d. Bamford v. Hayley, 12 2e4Dann v. Spurrier, 3 Bos. & P. East, 464. 86 TENANCY FOR YEARS. § 12 though the result is that he is subjected to a continuing liability under his covenant for rent.^®^ If the lease authorizes the lessee to terminate the tenancy only at a certain time, he cannot terminate it at any other time,262 the question of his right in this respect being merely one of the con- struction of the lease.263 Likewise, it is a question of the con- struction of the particular lease whether a performance of all the covenants by the lessee is a condition precedent to the lessee's right to terminate the tenancy.^®* It has been said that, even in the absence of any provision as to notice of an intention to exercise the power to terminate the tenancy, a reasonable notice to that effect must be given.^es Fre- quently, however, the lease contains a provision for notice, and this must be strictly complied with. So it has been held that where the lessee was authorized to terminate the tenancy at the end of fourteen years, by giving six month's notice immediately preceding the expiration of the fourteen years, a notice expiring at another time was not sufficient, even though the lessor under- stood what was intended.^*^ A provision authorizing the lessee to terminate by sixty days' notice is not satisfied by twenty days' 2M Seaward v. Drew, 78 Law T. construction of the particular leases, (N. S.) 19. in May v. Rice, TO8 Mass. 150, 11 262 A right in the tenant to give up Am. Rep. 328, where the tenancy was rooms the first day of February does held to be terminable at any time, not) authorize him to give them up on ^64 Porter v. Shephard, 6 Term R. the twenty-sixth. Reich v. McCrea, 665; Grey v. Friar, 4 H. L. Gas. 565. 37 N. Y. St. Rep. 620, 13 N. Y. Supp. In 2 Piatt, Leases, 463, it is said that 650. See, also, Woodbridge Co. v. "whenever the power of determln- Hires Co., 19 App. Div. 128, 45 N. ing the lease is given to the lessee, Y. Supp. 991, afd., without opinion, it is advisable, for the lessor's securi- 163 N. Y. 563, 57 N. E. 1129. ty, to make the exercise of it con- ass In Baker v. Adams, 59 Mass. ditional on the lessee's previous pay- (5 Cush.) 99, a lease made June 1, ment of rent and performance of for five years, providing that rent covenants, ^s the fear of being burd- should be paid by boarding the lessor ened with a continuance of the term and his family between November is generally a powerful inducement and May, and that either party to the faithful discharge of his might terminate the lease by giving duties." six months' previous notice, was con- ^^^ Goodright v. Richardson, 3 strued as requiring the notice to ex- Term R. 462. pire at the end of a year of the term. aes Cadby v. Martinez, 11 Adol. & This case Is distinguished, on the E. 720. § 12 DESTRUCTION OF THE TERM. 87 notice.^o'f and an oral notice is not suflS.cient when the lease pro- vides for a written one.^^s But a notice need not recite the pro- vision authorizing the termination,269 and it is sufficient if clear and unambiguous in terms. ^'''^ A provision that the lease should expire upon the "abandon- ing" of a pier to be constructed by the lessee was decided not to enable the lessee to terminate the lease, as against his creditor who had a lien on the pier, by the execution of an instrument by which in terms he undertook to ' ' abandon and yield up ' ' the pier to the lessor.^'^i g. The destruction of the term — (1) General considera- tions. "We have considered thus far the case of the termination of a tenancy for years in accordance with the limitations of the lease by which it is created, whether this be at the end of the period named, or, by reason of a "special limitation," upon the happen- ing of a contingency before the end of such period. "We will now consider the various cases in which, without reference to the period named by the lease or to any special limitation thereof, the tenancy may come to an end either by the voluntary con- current action of the landlord and tenant, the voluntary action of one of them, or the action of the law without reference to their desire or intention. Such premature termination of the tenancy 267 Hendry v. Squier, 126 Ind. 19, be able to stop unless" the rent is re- 25 N. E. 830, 9 L. R. A. 798. duced, was regarded as sufficient. 268 Legg V. Benion, Willes, 43; Kit- Bury v. Thompson [1895] 1 Q. B. 696. tie V. St. John, 7 Neb. 73. But it was held that, when the lease 269 Where the lease provided for authorized the tenant to terminate it its termination by the lessee if it at any quarter day corresponding to I'fecame impracticable to continue it, the first day of the term by a six a notice reciting that he terminated months' notice prior thereto, a it "as provided in the lease" was notice that "I intend to surrender you regarded as sufficient. Jenkins v. the tenancy of this house on or he- Clyde Coal Co., 82 Iowa, 618, 48 N. fore" such a quarter day was too W. 970. And see Giddens v. Dodd, uncertain and ambiguous, it mean- 3 Drew. 485. i^^S, apparently, that he intended to 270 See post § 199 enter into negotiations to surrender, Where there was a proviso for ^ thing which could be done only termination by the lessee at the end with the landlord's assent. Garden of seven or fourteen years, on a six v. Ingram, 61 Law T. (N. S.) 729. months' notice, a letter reading "I 271 Hagan v. Gaskill, 42 N. J. Eq. see my first seven years will be de- 215, 6 Atl. 879. termined Dec. 25, 1894. I shall not 88 TENANCY FOR YEARS. § 12 may be conveniently termed a "destruction" thereof as dis- tinguished from its "expiration" in accordance with the inten- tion of the parties as expressed at the time of the making of the lease. (2) Merger — (a) The general doctrine. In ease the tenant's estate and the estate in reversion come together in one person, the former estate is, ordinarily at least, "merged" in the latter and the tenancy thereby comes to an end.^^^ Qq ^ji^ estate of a sub- tenant may be merged in that of the original tenant.^^^ In equity, it is said, the doctrine of merger will apply only when it accords with the intention of the parties.^^* If this be so, it would seem that in jurisdictions where equitable defenses are allowed at law, or where rules of equity are controlling upon all the courts, the operation of the doctrine may be considerably restricted.2Ts Presumably it will be applied even in equity, if no contrary intention appears and no evident injustice results. It does not appear that equity ever intervened to prevent the opera- tion of merger at law, however great the resulting hardship. (b) Quantum of the reversionary estate. As regards the quantum of the reversionary estate, it is necessary only that it be as great as or greater than the estate asserted to be merged. Hence, an estate for years may merge in a fee simple estate, an 272 2 Blackst. Comm. 177; Dynevor 274 Brandon v. Brandon, 31 Law V. Tennant, 13 App. Cas. 279; Otis v. J. Ch. 47; Snow v. Boycott [1892] 3 McMillan, 70 Ala. 46; Ferguson v. Ch. 110; Ingle v. Vaughan Jenkins Etter, 21 Ark. 160, 76 Am. Dec. 361; [1900] 2 Ch. 368; Capital & Coun- Liebschutz v. Moore, 70 Ind. 142, 36 ties Bank v. Rhodes [1903] 1 Ch. 631; Am. St. Rep. 182; Carroll v. Ballance, Bostwick v. Frank Field, 74 N. Y. 207; 26 111. 9, 79 Am. St. Rep. 354; Colla- Spencer v. Austin, 38 Vt. 258. Wil- mer v. Kelley, 12 lowa^ 319; Denham bur v. Nichols, 61 Vt. 432, 18 Atl. V. Sankey, 38 Iowa, 269; Wahl v. 154, would seem to involve an ap- BarroU, 8 Gill (Md.) 288; Story v. plication of such a doctrine. TJIman, 88 Md. 244, 41 Atl. 120; Gunn 275 The English Judicature Act, § V. Sinclair, 52 Mo. 327; Higgins v. 25, subs. 4 (36 & 37 Vict. c. 6ff), ex- Turner, 61 Mo. 249; Hudson Bros', pressly provides that there shall not Commission Co. •*■. Glencoe Sand & be any merger by operation of law Gravel Co., 140 Mo. 103, 41 S. "W. 450, only of any estate the beneficial inter- 62 Am. St. Rep. 722; Kershaw v. est in which would not be deemed to Supplee, 1 Rawle (Pa.) 131. be merged or extinguished in equity. 273 Webb V. Russell, 3 Term R. See, also, In re Stafford, 105 App. 393; Wahl v. Barroll, 8 Gill (Md.) Div. 46, 94 N. Y. Supp. 194. 288. § 12 * MB3HGER. 89 estate for life or an estate for years,^^* and it may kappen that an estate for years is merged in another estate for years of less dura- tion. For instance, if immediately after making a lease for ten years the lessor makes a concurrent lease for five years, the second lessee becomes reversioner for the period of five years,^''' and if Ms estate and that of the prior lessee become vested in one and the same person, the ten-year term is merged in the five-year term. 278 (c) Estates held in different rights. In order that merger may occur, it is ordinarily necessary that the two estates be held by the same person in the same right. If, for instance, the rever- sioner obtains the leasehold as executor of the lessee,^^^ or if one has the term in his own right and the reversion in right of his wife,2S'' or if he has the leasehold in his own right and the rever- sion as another's administrator,^^! there is no merger. There is some authority for the view that this exclusion of merger when the estates are held by a person in different rights does not apply if a person having one estate in a fiduciary capacity or in right of another thereafter acquires the other estate in his own right by his voluntary act, as distinguished from the act of the law.^^^ (d) No merger if estate intervenes. The interest of a subten- ant will not merge in that of the original landlord, since merger will not occur when, as it is expressed, an intermediate estate intervenes.283 Por instance, if a lessor for years makes a con- current lease for years,^^* and thereafter conveys the fee simple to the first lessee, there is no merger .^^^ Nor is there any merger when a sublessee takes a conveyance of the reversion upon the original lease,**^ or when the lessee, having made a sublease, makes a concurrent lease to his own lessor for the term of the 276 3 Preston, Conveyancing, 182, 7 Hurl. & N. 507. The question is 219. discussed at length, in 3 Preston, iJTSee post, § 146 d. Conveyancing, 273 et seq. See, also, 278 Stephens v. Bridges, 6 Madd. & Challis, Real Prop. (2d Ed.) 82. Gel. 66; 3 Preston, Conveyancing, ^ss 3 Preston, Conveyancing, 107. 195. 284 See post, 146 d. 2T9 Co. Litt. 338 b. 286 3 Preston, Conveyancing, HI, 28.0 Piatt V. Sleap, Cro. Jac. 275. citing Bro. Abr., Exting., pi. 54. 281 Chambers v. Kingham, 10 Ch. ssa .Logan v. Green, 39 N. C. (4 Div. 743. Ired. Eq.) 370; Tolsma v. Adair, 32 282 Jones V. Davis, 5 Hurl. & N. 766, Wash. 383, 73 Pac. 347. 90 TENANCY FOR YEARS. § 12 sublease.^*'' An intervening interesse termini^ however, that is, a right to a term of years to commence in the future, not being an estate, will not, it has been decided, prevent the merger of a prior term in the reversion,^*^ though the merger of such prior term does not affect the validity of the interesse termini?^^ (e) In case of interesse termini. Upon the theory that an interesse termini will not merge, it has been held that if one hav- ing an estate for years takes a lease to commence on the expira- tion of his term, his interest under this second lease will not merge upon his acquisition of the reversion.^^o However sound may be this view, using the expression interesse termini in the sense of a term to commence in futuro, it is difiBcult to see why, using the expression in the sense of a present term not yet re- duced to possession,29i such a term should not merge to the same extent before as after the lessee's entry. Since a term to commence in the future is not an estate, a present estate for years will not merge in such a future term.^*^ (f ) On transfer under judicial process or decree. It is imma- terial, as regards the question of merger, whether the title to the reversion and that to the leasehold come together by reason of a voluntary conveyance, a conveyance under judicial process, on the foreclosure of a lien, or by act of the law, such as descent.^^*' 2^* In the case, however, of a sale and conveyance under judicial process .against the lessor or on foreclosure, a distinction should be noted as regards the date of the lien, the enforcement of which is involved in such sale and conveyance. For instance, in the case of a sale under a mortgage or judgment which existed as a lien prior to the lease, and of a purchase at such sale by the lessee, the latter acquires not the reversion but a paramount title, the same title which he would have acquired by a conveyance in fee made at the time of the creation of the lien, and there is no room for the application of the law of merger. There is at least one decision ^ss ^g the effect that merger occurs in such a case, 257 Burton v. Barclay, 7 BIng. 745. 290 Doe d. Ravlings v. Walker, 5 258 3 Preston, Conveyancing, 207; Barn. & C. 111. Doe d. Rawlings v. Walker, 5 Bam. 291 See post, § 37. & C. Ill; Anouymous, 2 Dyer, 112 a; 292 Hyde v. Warden, 3 Exch. Div. Logan V. Green, 39 N. C. (4 Ired. 72. Eq.) 370. 293, 294 See post, §§ 147, 150. 259 3 Preston, Conveyancing, 208; 295 Moston v. Stow, 91 Mo. App. Anonymous, 2 Dyer, 112 a. 554, citing Gunn v. Sinclair, 52 Mo § 12 MERGER. 91 thereby ignoring, as is frequently done,298 the fact that, by a sale and conveyance under a lien prior to a lease, not the rever- sion but a paramount title passes. It has been decided in one case that when the reversion passes to the tenant by reason of his purchase at a judicial sale or by reason of a conveyance from the purchaser at such sale, the merger is not affected by the existence of a right of redemption from the sale in the reversioner, which right is duly exercised.^^'' In some jurisdictions no conveyance would be made in pursuance of the sale until the expiration of the period of redemption, and there would be no legal title in the tenant to support a merger, which could then be supported on equitable principles alone. (g) Effect of contract to convey. A mere contract by the landlord to convey the reversion to the tenant, or a contract by the tenant to convey the reversion to the landlord, vesting, as it does, only an equitable interest in the purchaser, would not ordin- arily authorize the application of the doctrine of merger in a court at law, but in equity a different view would be taken, and the doctrine would be applied in such case, provided this was compatible with the apparent intention of the parties.^*^ The same view has apparently been adopted where there is no sep- arate equity jurisdiction.^ss The doctrine would not, however, it seems, be applied in favor of the intending purchaser until he had paid or tendered the price,^"" and the fact that the contract of purchase calls for a conveyance only at a future time presum- ably shows the absence of any intention that a present merger shall occur.sci The decisions on the question of the effect of 327; Higgins v. Turner, 61 Mo. 249, N. C. 35, 13 N. Y. Supp. 843; Knerr in which cases it did not appear v. Bradley, 105 Pa. 190. And see ■whether the lien was prior or sub- McMahon v. Jacoway, 105 Ala. 585, sequent to the lease, but it is stated 17 So. 39. broadly that such a sale extinguishes soo See Rooney v. Gillespie, 88 the tenancy, without the suggestion Mass. (6 Allen) 74; Campbell v. Bab- of any distinction as regards the cock, 26 Abb. N. C. 35, 13 N. Y. Supp. priority of the lien. 843; New York Bldg. Loan Banking 208 See post, §§ 73 c, 78 n. Co. v. Keeney, 56 App. Div. 538, 67 297 Otis V. McMillan, 70 Ala. 46. N. Y. Supp. 505; Knerr v. Bradley, 298Capel V. Girdler, 9 Ves. Jr. 105 Pa. 190; Wade v. South Penn Oil 509. See ante, § 13 g (2) (a). Co., 45 W. Va. 380, 32 S. E. 169. 2»9 Bostwick V. Frankfield, 74 N. aoi Smith v. Brannan, 13 Cal. 107. Y. 207; Campbell v. Babcock, 26 Abb. 92 TENANCY FOR YEARS. §12 such a contract of sale as extinguisliing the tenancy are, it may be remarked, almost entirely lacking in a discussion of the matter on principle, and the above statements in that regard are to be considered as inferences from the decisions rather than as based on the explicit language of the courts. (h) Partial merger. A merger will take place as to a portion only of the leased premises whenever the reversion and the lease- hold in such portion only meet in one persoUj^^^ ^j^j the tenancy will continue as before in the residue of the premises. A partial merger will also frequently take place when an undivided interest in the reversion meets with an entire or^ partial interest in the leasehold, or an undivided interest in the leasehold meets with an entire or partial interest in the reversion.^os But if it appears that an undivided interest in the reversion is in a different share of the land from that in which an undivided interest in the lease- hold exists, the meeting of these interests will not, it has been said, cause a merger. For instance if, A and B being tenants in common of land, A leases to C and B leases to D, the undivided interest of C would perhaps not merge in the reversion of B upon their meeting in one person, it clearly appearing that such re- version and leasehold are in different shares.^^* (i) Merger as regards third persons. A merger will in some cases not be allowed to operate to the disadvantage of "third per- sons-^^s For instance, the estate created by means of a sublease will not be affected by the merger of the sublessor's estate in the original reversion.^o^ Nor will a lien or charge created by the tenant be affected by the fact that the leasehold is for other purposes thereafter merged in the reversion.^"'' The courts, how- 302Badeley v. Vigurs, 4 El. & Bl. 3. N. Y. Supp. 380; Lansing v. Pine, 71; Yates v. Cole, 2 Brod. & B. 4 Paige (N. Y.) 639. But see Mar- 660; Dighton v. Greenvil, 2 Vent, tin v. Tol)in, 123 Mass. 85. 327; Higgins v. California Petrol- 304 3 preston. Conveyancing, 89; eum & Asphalt Co., 109 Cal. 304, 41 Challis, Real Prop. (2d Ed.) 77. Pac. 1087; Nellis v. Lathrop, 22 305 3 Preston, Conveyancing, 447, Wend. (N. Y.) 121, 34 Am. Dec. 285. 454. See Denham v. Sankey, 38 »o3 3 Preston, Conveyancing, 89; Iowa, 269. Challis, Real Prop. (2d Ed.) 77; 308Thre'r v. Barton, Moore, 94; Hill V. Reno, 112 111. 154, 54 Am. St. "Webb v. Russell, 3 Term R. 393. Rep. 222; Simmons v. MacAdaras, sot 3 Preston, Conveyancing, 447, 6 Mo. App. 297; Holmquist v. Bava- 454. So it is decided in Buffum v. rian Star Brew. Co., 1 App. Div. 347, Deane, 70 Mass. (4 Gray) 385, that an § 12 DESTRUCTION OP THE TERM. 93 ever, always gave full effect to the doctrine of merger for the purpose of destroying the interest of a contingent remainderman, although the merger was the result of collusion between the life tenant and the vested remainderman.^os (3) Surrender. If the tenant makes surrender of the lease- hold estate, there is thereafter no estate to support the tenancy and the latter immediately comes to an end except as against third persons.^"* (4) Forfeiture. Upon the enforcement by the landlord of a forfeiture of the tenant's estate for years, either for disclaimer of the landlord's title, by force of a condition of re-entry in the lease, or under a statute authorizing a recovery of possession for default in the payment of rent or performance of covenants, the tenant's estate comes to an end and the tenancy no longer exists.^i" (5) Eviction. In theory, an eviction of the tenant by the landlord does not bring the tenancy to an end, but it frequently has this effect, the tenant treating it as final for all purposes.*^* An eviction under title paramount ordinarily brings the tenancy entirely to an end.^^^ g^jt if the paramount title is based on a mortgage or on a sale under a lien or judicial process and a right of redemption exists, the tenancy will not come to an end, it seems, till the expiration of the time for redemption.^is (6) Taking under power of eminent domain. The effect of a judgment ia condemnation proceedings is ordinarily to vest the reversion and the leasehold in one legal person, either the state or the corporate entity to which the power of eminent domain has been delegated, and this, it would seem, presents a clear case for the application of the doctrine of merger. The courts have not, however, considered the possibility of applying this doctrine attachment upon the leasehold Is mortgagor could not, after acquiring not affected by a subsequent merger, the reversion, assert a claim for the But it has been decided that a rent reserved, mortgagee of the leasehold does not sos Fearne, Contingent Remain- acquire a lien on the reversion if ders, c. 5; Challls, Real Prop. 84. the mortgagor, after making the aoo See post, f§ 182 g, 191. mortgage, purchases the reversion, sio gee post, chapter XIX. since the reversion Is not merged in sii gee post, §§ 182 e (1), 185 h. the lesser estate. Collamer v. Kel- 312 gee post, §§ 182 e (2), 186 a (3). ley, 12 Iowa, 319. It was there de- 313 gee post, §§ 182 e (2), 186 a (3). cided, however, in effect, that the 94 TENANCY FOR YEARS. § 12 of merger in this connection, and have indeed not discussed the question of the cessation of the tenancy as a result of the con- demnation proceedings except as such discussion might be in- volved in that of the discontinuance of the tenant's liability for rent ; and upon this latter question the cases are by no means in unison, as will hereafter appear.^i* Any decisions to the effect that liability for rent still continues seem necessarily to involve the view that the tenancy is still in existence. In case a part only of the premises is condemned for public use, the tenancy is still, it seems, to be regarded as existing in .the residue. And the tenancy would still exist if an easement only is taken, this not divesting either the leasehold or reversionary estates.315 There may be a "special limitation" in the lease providing that the tenancy shall cease upon the taking of the premises or a part thereof for public use.^^^ (7) Bankruptcy. The bankruptcy of the lessee does not, by the great weight of authority, have the effect of terminating the tenancy,*" provided the lease contains no provision to that effect,*!* and unless the trustee in bankruptcy refuses, as here- 31* See post, § 182 k. cial limitation providing for the S15 See post, § 182 k. cesser of the term upon bankruptcy, 316 See Munigle v. City of Boston, or may provide for re-entry in such 85 Mass. (3 Allen) 230, where it was case. See Roe d. Hunter v. Gal- held that this was the effect of a liers, 2 Term R. 133; Gray, Re- provision that "if the lessor shall straints on Alienation of Prop. § sell the said house, or the city shall 101; Woodfall, Landl. & Ten. (IGth cut off said premises, the said ten- Ed.) 286. See post, § 194 e (5). ant shall consent thereto." A proviso for re-entiry "if the 317 In re Ells, 98 Fed. 967; In re lessee, his executors, administrators Arnstein, 101 Fed. 706; In re Pen- or assigns shall become bankrupt" newell, 119 Fed. 139; Wildman v. was held to refer to the bankruptcy Taylor, 4 Ben. 42, Fed. Cas. No. 17, only of the person who for the time 654; Oden v. Sassman, 68 N. J. Eq. being was possessed of the term, and 799, 64 Atl. 1134, afg. 67 N, J. Eq. there was no right of forfeiture up- 239, 57 Atl. 1075, 91 Am. St. Rep. on the bankruptcy of the original 423; Woodward v. Harding, 75 App. lessee after having assigned the Dlv. 54, 77 N. Y. Supp. 969; "Witt- leasehold to another. Smith v. haus v. Zimmerman, 91 App. Dlv. Gronow [1891] 2 Q. B. 394. A pro- 202, 86 N. Y. Supp. 315; In re Cur- vlso in substantially the same lan- tis, 109 La. 171, 33 So. 125, 78 Am. guage was held to apply in case or St. Rep. 445. the bankruptcy of the survivor ol 318 The lease maj-^ contain a spe- certain executors to whom the ten- I 12 BANKRUPTCY OF TENANT. 95 after explained, to accept the leasehold interest, it will pass with the bankrupt's other property to such trustee.^^* The contrary dicta and decisions to the effect that the adjudica- tion of the tenant's bankruptcy terminates the tenancy and re- vests in the landlord the right of present possession subject to the temporary requirements of the trustee are, it is submitted, absolutely unsound.^^** In two of these cases the courts appar- ently regard the termination of the tenancy as a necessary result of the inability to prove, in the bankruptcy proceedings, a claim for rent thereafter accruing ;32oa j^ Q^g^ j^q reason whatever is given for the dictum,^^^ while, in still another, such view seems to be based on the theory that this would be the fairest practical result for all parties.**^ That the question of the right to prove a claim for future rent is independent of the question of the termination of the tenancy seems almost self-evident. The in- ability to prove such a claim is a result, as has been frequently stated, of the fact that such future rent is not a debt.^23 ^g to the suggestion that to give the adjudication of bankruptcy the effect of terminating the tenancy will be fair at all parties, exactly the contrary is the case. Without reference to whether the bankrupt is the original lessee or his assignee, if the rental value of the property is less than the rent reserved, it may be a ant had bectueathed his interest in assignment in violation of the cove- trust. See Doe d. Bridgman v. nant would not terminate the lease David, 1 Cromp. M. & R. 405. unless the lease so provided, that is, 319 See post § 158 a (2) (j). unless the estate vested in the lessee 320 In In re'sreck, 8 Ben. 93, Fed. ^^s limited to expire on such an Cas. No. 1,822, Blatchford, J., says: event. The landlord would not, in "The lease was undoubtedly can- ™««t states, even have the option of celed by the bankruptcy, as, by its terminating the tenancy in the ab- terms, it could not be assigned with- ^ence of a proviso for re-entry t.ut the written consent of the land- (Po^t, § 152 j). In New York, at lord." The correctness of this state- ^^^ Present time, such right is given ent depends on the words of the ''y the summary proceeding stat- lease, which are not stated in the "te. See post, § 274 g. report. A covenant not to assign ''"^'^^ re Jefferson, 93 Fed. 948; does not apply to an assignment by Bray v. Cobb, IM Fed. 270. operation of law, such as by bank- =21 in re Hinckel Brew. Co., 123 ruptcy, unless it is expressly so Fed. 942. stated (see post, § 152 f), and fur- 322 in re Hays, Foster & Ward Co.. thermore, even if in terms applying 117 Fed. 879. to such an assignment, the fact of 323 See post, § 166. 96 TENANCY FOR YEARS. § 12 decided hardship on the landlord to treat the tenancy as term- inated. The theory of the bankrupt act, as constrned by the courts, is to relieve the bankrupt from those debts only which can be asserted against him in the bankruptcy proceedings, but the effect of regarding the tenancy as ended is to relieve the bank- rupt lessee from the liability for rent, which cannot be asserted against him in that proceeding. When the leasehold has, before the adjudication, been assigned by the lessee to another, the possible hardship upon the land- lord of regarding the bankruptcy of the tenant as terminating the tenancy is still more evident. It may be that the original lessee is perfectly solvent, and he, as is elsewhere, stated, remains liable on the covenants of the lease. If the bankruptcy of his assignee is to end the tenancy and so terminate the landlord's right to enforce the covenant for rent or other covenants, one who has bound himself by a covenant in a lease may relieve himself from all liabilities thereon by the simple device of assigning the lease- hold to a "man of straw" and subsequently procuring, directly or indirectly, an adjudication of bankruptcy as regards the latter. It does not seem to have been in any case suggested that the bankruptcy of the original lessee would terminate the tenancy if it occurs after he has assigned the leasehold, and that it could not have that effect is presumably conceded. If the rental value of the property is greater than the rent reserved, the hardship iavolved in regarding the tenancy as ended falls upon the creditors of the tenant. A leasehold still having a number of years to run is frequently in itself a valuable asset, and may be the only asset of the estate. It is difficult to perceive why this asset should be presented to the reversioner, and such is evidently the effect of regarding the tenancy as terminated.*^* It may furthermore be remarked that since an adjudication of ha/n^rnptcy has its legal existence only by reason of the bankrupt act, its operation should not be extended beyond the terms of the act. There is not the slightest suggestion in the act of an intention that an adjudication of bankruptcy should terminate a term of years previously vested in the tenant. 32* In Atkins v. Wilcox, 44 C. C. that if the leasehold Is subject to a A. 626, 105 Fed. 595, 53 L. R, A. 118, merely nominal rent, it wxjuld not ' McCormick, J., suggests apparently be terminated by the adjudication of § 12 DESTRUCTION OF THE TERM. 97 That a tenant has made an assignment for the benefit of cred- itors is evidently no reason for regarding the tenancy as termin- atedj^^f* such assignee, as would any other assignee, becoming substituted in his place to the rights and liabilities incident to the relation of tenancy .*2« (8) Destruction of or injury to premises by unforeseen casu- alty. The question has frequently arisen whether destruction of or injury to part of the premises, ordinarily a building upon the land leased, terminates the liability for rent, and the great majority of the decisions are, as elsewhere stated,^^'^ to the effect that, apart from a statute or special stipulation to the contrary, the liability for rent continues as before. This view involves the view that the tenancy itself still continues. It has, however, been frequently decided in this country that the liability for rent ceases if the leased premises consist merely of a building or a part of a building without including any land, and the building is destroyed,^ 2^ and there are a number of cases in which it is specifically stated that the tenancy ceases in such a case, there being no longer any subject-matter on which the tenancy can operate.*^® Not infrequently there is an express stipulation that the liabil- ity for rent shall cease upon the destruction of the building on the leased premises. The question whether such a stipulation has bankruptcy, but that the rule might Utah Optical Co. v. Keith, 18 Utah, be otherwise if it is subject to a rent 464, 56 Pac. 155; Schmidt v. Pettit, equal to the value of the premises, g d. c. (1 MacArthur) 179. But 325 See Reynolds v. Fuller, 64 111. not if the part leased is only In- App. 134. jured and is not destroyed. Turner 320 See cases cited post, § 158 j. y. Mantonya, 27 HI. App. 500. 32- See post, § 182 m. In Alnsworth v. Mt. Morlah Lodge, 328 See post, § 182 m (2). 172 Mass. 257, 52 N. E. 81, where 329 McMillan v. Solomon, 42 Ala. the third story in a building had 356, 94 Am. Dec. 654; Ainsworth v. been leased "during the life of the Rltt, 38 Cal. 89; Stockwell v. Hun- building," the lessee covenanting to ter, 52 Mass. (11 Mete.) 448, 45 keep such part in good repair during Am. Dec. 220; Shawmut Nat. Bank the life of the building, the tenancy V. City of Boston, 118 Mass. 125; was regarded as terminated when Kerr v. Merchants' Bxch. Co., 3 Edw. fire substantially destroyed the third Ch. (N. Y.) 315; Winton V. Cornish, 5 story and so much of the lower Ohio, 477; Harrington v. Watson, 11 stories that it was impracticable to Or. 143, 3 Pac. 173, 50 Am. Rep. 465; rebuild the third story without re- Macnair V. Ames (R. I.) 68 Atl. 950; building other parts. L. and Ten. 7. 98 TENANCY FOR YEARS. § 12 the effect of terminating the tenancy in that event is primarily a question of construction. The eases bearing thereon are con- sidered elsewhere.**" (9) Untenantable condition of premises. In some states the view has been asserted that a mere untenantable condition of the premises will justify the tenant in relinquishing possession and refusing to pay further rent.*** It does not appear whether a relinquishment of possession under such circumstances involves a termination of the tenancy. (10) Expiration of the lessor's estate. In the absence of a statutory power or of an express power to that effect in the creation of the estate, one having a limited estate in land cannot, as against the person entitled in reversion or remainder, create an estate to endure beyond the termination of his own estate. This self-evident principle has been applied in the case of the making of a lease for years by a tenant for his own or another's life, the rights of the remainderman or reversioner being recog- nized as superior to any claim on the part of the lessee.**^ And so the expiration of the lessee 's estate by reason of a special limi- tation terminates the estate of his sublessee.*** It has also been decided that the expiration of the lessor's estate may be asserted by the tenant holding under the lease in defense to an action for rent or on covenants of the lease or by the liandlord to recover possession. This question we consider elsewhere.*** (11) Destruction of the lessor's estate. Upon the question whether the tenancy is destroyed as a result of the destruction of the lessor's estate, the authorities are not entirely clear. It is recognized that a subtenant is not affected adversely by a sur- render made by his landlord to the head landlord, that is, his right of possession under the sublease continues as before,**^ and the same appears to be the case when the sublessor's estate is merged in the original reversion.**® In both these cases, at 330 See post, § 182 m (6) (d). cases cited post, § 15 b, note 588. 331 See post, § 182 n. 333 Eten v. Luyster, 60 N. Y. 252; 332 See e. g., Coakley v. Chamber- Bove v. Coppola, 45 Misc. 636, 91 lain, 8 Abb.. Pr. (N. S.) 37, 38 How. N. Y. Supp. 8; Bruder v. Geisler, 47 Pr. 483, 31 N. Y. Super. Ct. (1 Misc. 370, 94 N. Y. Supp. 2. Sweeny) 676; Mclntyre v. Clark, 6 334 See post, § 78 p (3). Misc. 377, 26 N. Y. Supp. 744; Guth- 335 See post, § 191 b; Sutton's Case, mann v. Vallery, 51 Neb. 824, 71 N. 12 Mod. 557. W. 734, 66 Am. St. Rep. 475; and ssb Thre'r v. Barton, Moore, 94: § 12 DESTRUCTION OF THE TERM. 99 common law, the subtenant thereafter not only retained the pos- session but he was free from liability for rent or upon the cov- enants of the sublease, on the theory that the right to rent and the covenants could not exist after the destruction of the sub- reversion to which they were incident.^*'' This rule has been changed in England by statute.^ss Whether it would ordinarily be recognized in this country does not appear. There are cases in which it is referred to without disapproval,^*^ while in one jurisdiction it has been decided that a subreversion which has been surrendered would not thus be regarded as extinguished in the original reversion to the disadvantage of the reversioner, but that it would still exist for the purpose of asserting the subten- ant's liability under his covenant for rent as well as under other covenants.*** And it has been decided that if the tenant, in making a surrender, reserves to himself the rent, the rent is not extinguished by the extinguishment of the subreversion, and he may transfer this right to the reversioner, and so the reversioner will have the rent incident to the subreversion though the sub- reversion itself is extinguished.**! Furthermore, it has been de- cided that the sublessee's liability for rent cannot be regarded as extinguished by the surrender of the subreversion when his conduct showed that he regarded his sublease as terminated and that he was holding as tenant at will of the original lessor,*** and he is liable if he actually attorns to the original lessor.***" A lessor who has accepted a conveyance of the leasehold from his tenant, if he treats the sublease as outstanding by collecting rent from the sublessee, cannot thereafter, it has been decided, con- tend that the subreversion has been merged.***'' Webb V. Russel, 3 Term R. 393; 3 Grundin v. Carter, 90 Mass. 15; Pratt Preston, Conveyancing, 448. v. Richards Jewelry Co., 69 Pa. 63. 337 See cases cited in last preced- 340 Hessel v. Johnson, 129 Pa. 173, ing note. 18 Atl. 754, 15 Am. St. Rep. 716, 5 338 8 & 9 Vict. c. 106, § 9. L. R. A. 851. 33» Bailey v. Richardson, 66 Cal. 3*1 Beal v. Boston Car Spring Co., 416, 5 Pac. 910; Krider v. Ramsay, 125 Mass. 157, 28 Am. St. Rep. 216. 79 N. C. 354; McDonald y. May, 96 342 Appleton v. Ames, 150 Mass. 34, Mo. App. 236, 69 S. W. 1059. See 22 N. E. 69, 5 L. R. A. 206. Williams v. Michigan Cent. R. Co., 342a McDonald v. May, 96 Mo. App. 133 Mich. 448, 95 N. W. 708, 103 Am. 236, 69 S. W. 1059. St. Rep. 458. That the sublessor 342b Bailey v. Richardson, 66 Cal. cannot recover rent after his sur- 422, 5 Pac. 910. render of the leasehold is decided in 100 TENANCY FOR YEARS. § 12 The enforcement of a forfeiture of the subreversion for breach of a condition of the original lease will defeat the estate of the subtenant ^*^ and so terminate his tenancy. If a mortgagor having the legal title grants a lease subsequent to the mortgage, upon the foreclosure of such mortgage and the expiration of all right of redemption, the lessee has no interest which he can assert as against one claiming under the fore- elosure,^** and the same rule applies in case of a sale under any other lien prior to the lease.^*^ If a mortgagee having the legal title makes a lease and the mortgagor redeems, the mortgagee's title thereupon coming to an end, the lessee or his assignee cannot retain the possession as against the mortgagor,**^ and the same is true if a purchaser at execution sale leases and the execution defendant subsequently redeems. 3*'^ It has been decided that a tenancy under a lease made by a husband and wife of land held by them jointly does not come to an end because she obtains a decree of divorce depriving him of all interest in the land.**^ (12) War and military occupation. It has been decided that the presence of hostile forces on or around the premises leased, rendering them incapable of occupation or utilization by the tenant, does not relieve him from liability for rent,^*® and this involves the view that the tenancy is not terminated in such case. (13) Death. The death of the landlord does not cause the tenancy to come to an end, but the reversion, with the rights incident thereto, passes to the devisee or legatee named in his will or, in case he dies intestate as regards this particular prop- erty, it passes to his heir or personal representatives, according to the character of the reversion as being realty or personalty.^^" The death of the tenant, likewise, does not terminate the ten- ancy, his interest under the lease passing to his personal repre- sentative.3^1 3*3 See post, § 194 h, at note 188. 348 Emmert v. Hays, 89 111. 11. 344 See post, § 73. 349 gee post, § 182 s. 345 See post, 78 n (3). 330 See Jaques v. Gould, 58 Mms. 34,6 Hungerf ord v. Clay, 9 Mod. 1; (4 Cush.) 384, and cases cited post, Willard v. Harvey, 5 N. H. 252; Holt § 147. V. Rees, 44 111. 30. 351 See Alsup v. Banks, 68 Miss. 347 Morris v. Beebe, 54 Ala. 300. 664, 9 So. 895, 24 Am. St. Rep. 294, § 13 TENANCY AT WILL. 101 (14) Dissolution of corporation tenant. It has in England been decided that, upon the dissolution of a corporation which has a leasehold, the term comes to an end and the land reverts to the lessor ;3 51 a and it has in this country been asserted that if the leasehold is valueless, so that the receiver of the corporation re- fuses to accept it, the term comes to an end.^^^'' It being recog- nized that a receiver has the right to refuse to accept the lease- hold,35ic a,nd the corporation ^being no longer in existence so as to hold it, it seems inevitable that the estate itself should come to an end, it not being for the public good that such a damnosa haereditas should pass to the state. § 13. Tenancy at will. a. When the tenancy arises — (1) Lease at will of lessee. A tenancy at will is stated by Littleton to exist "where lands or tenements are let by one man to another, to have and to hold at^ the will of the lessor by force of which lease the tenant is in possession. "352 Coke, in commenting on this passage, says : "It is regularly true that every lease at will must in law be at the ■ will of both parties, and therefore when the lease is made, to have and to hold at the will of the lessor, the law implieth it to be at the will of the lessee also; for it cannot be only at the will of the lessor, but it must be at the will of the lessee also. And so it is when the lease is made to have and to hold at the will of the lessee, this must be also at the will of the lessor ; and so are all the books that seem prima facie to differ, clearly rec- onciled. ' '3'^ While the later of these writers does not profess to 13 L. R. A. 598; Mickle v. Miles, 1 the use of certain cotton seed "so Grant Cas. (Pa.) 320;- In re Wal- long as he remains on the place," a ker's Estate, 6 Pa. Co. Ct. R. 515; like quantity to be returned "at the Wilcox V. Alexander (Tex. Civ. App.) close of his lease." 32 S. W. 562. And see post, § 150. ssia Hastings Corp. v. Letton In Charles v. Byrd, 29 S. C. 544, 8 [1908J 1 K. B. 378. S. E. 1, it was held that a lease was ssib Fidelity Safe Deposit & Trust not so personal as not to pass to the Co. v. Armstrong, 35 Fed. 567. See personal representative of the lessee. New Hampshire Trust Co. v. Tag- on his death, merely because it con- gart, 68 N. H. 557, 44 Atl. 751. tained stipulations as to the mode asie See post, § 158 a (2) (1). of cultivation, and provided that ssaLitt. § 68, adopted in 2 Blackst. certain improvements be made by Comm. 145. the lessee and that he should have 353 Co. Litt. 55 a. 102 TENANCY AT WILL. § ^3 differ from the earlier one, there is to some extent a contradiction in so far as he asserts a tenancy at will to arise, not only in the case of a lease at the will of the lessor, but also when the lease is in terms at the will of the lessee, this being, he says ' ' also at the will of the lessor;" and the question whether a lease thus in terms at the will of the lessee does necessarily create a ten- ancy terminable at the will of either party is one of some diiB- culty. In several cases in this country the courts have accepted Coke 's 'statement literally and without question, holding that if a lease, without naming any term of enjoyment, gives the tenant a right to leave at any time and thus terminate all liabilities on his part, the lessor may compel him to leave at any time, that is, that he is a tenant at will.^** On the other hand, at common law, if one having a fee simple estate made a conveyance or demise to another accompanied by livery of seisin, without words of in- heritance or other limitation, a life estate was created in favor of the latter,3B5 and the fact that the lessee in such case was' given the option to terminate his tenancy at any time should not, it seems, reduce his freehold interest to a mere tenancy at will, but rather he should be regarded as having an estate for life subject to a right in him to terminate it. " That a lease in terms creating an estate for years contains such an option in the lessee does not render the latter a tenant at will merely,^^* and no more should its presence in what would otherwise be a conveyance in fee simple or for life have such an effect. Not only is the opposite view apparently opposed to those cases recognizing the validity of a term of years subject to such an option in the lessee, but it also seems opposed to the numerous decisions to be found in this country to the effect that there may be a convey- ance in fee for so long as the grantee may choose to occupy the 354 Doe d. Pidgeon v. Richards, 4 C. (3 Dev. Law) 414; Eclipse Oil Co. Ind. 374; Knight v. Indiana Coal & v. South Penn Oil Co., 47 W. Va. 84, Iron Co., 47 Ind. 105, 17 Am. Rep. 34 S. E. 923; Beaucliamp v. Runnels, 692; Cheever v. Pearson, 33 Mass. 35 Tex. Civ. App. 212, 79 S. W. 1105; (16 Pick.) 266; Western Transp. Co. Corby v. McSpadden, 63 Mo. App. V. Lansing, 49 N. Y. 499; Cowan v. 648; Reese v. Zinn, 103 Fed. 97. Radford Iron Co., 83 Va. 547, 3 S. B. 355 See ante, § 11 b. 120; Den d. Mhoon v. Drizzle, 14 N. sso gee ante, § 12 f. § 13 WHEN TENANCY ARISES. 103 premises for a certain purpose, this in effect creating an estate terminable at the grantees' will.'*'' It has in England, apparently, in accordance with these views, been decided that a conveyance to one with a right in him to terminate the holding at any time creates in him a freehold estate.'** There the estate thus created in the absence of the insertion of the word "heirs" is a life estate merely, terminable at the will of the lessee, while under the rule prevailing in most of the states in this country, that the word "heirs" is not neces- sary for the creation of an estate in fee, the estate created would rather be one in fee terminable at the lessee 's option, unless the terms of the conveyance show a different intention.'*® There are several eases in this country which tend to support the view that such a conveyance creates an estate for life or in fee.'®" 357 See cases cited, 1 Tiffany, Real ed to the lessor, his heirs or assigns. Prop. § 81. at the time of the expiration of the 35S Beeson v. Burton, 12 C. B. 647; occupation of the said premises for In re King's Leasehold EJstates, L. R. sawmill purposes," was held not to 16 Eq. 521; Zimbler v. Abrahams create a tenancy at will, and by im- [1903] 1 K. B. 577. plication the court asserted that it ss" See Reed v. Lewis, 74 Ind. 433. created a fee simple. This seems 360 In Effinger v. Lewis, 32 Pa. not to be in accordance with Doe d. 367, it was decided that a lease for Pldgeon v. Richards, 4 Ind. 374 and a term of years, with a provision Knight v. Indiana Coal & Iron Co., that the lessee, his heirs and assigns, 47 Ind. 105, 17 Am. Rep. 692, cited might hold the premises as much in note 354, supra. The only differ- longer as he and they should think ence in the facts seems to be that in proper after the end of the term, at these latter cases the lessee asserts the same rent, conveyed a fee simple, his will to give up the lease by noti- And in Ely v. Randall, 68 Minn. 177, fying the lessor and by leaving, 70 N. "W. 980, a lease for five years, while in the other he asserts his "with the privilege of holding it will by ceasing to use the premises longer" provided the lessee kept a as a sawmill yard. post-ofBce and store, and no longer. In Cole v. Lake Co., 54 N. H. 242, was held to give the lessee an in- 277, it was decided that when there terest to endure so long as he per- was a lease to the lessees "and their sonally kept the store, which could legal representatives during their not be beyond the term of his life, pleasure," since the words above In Gilmore v. Hamilton, 83 Ind. quoted showed an intention to create 196, a written demise "for a certain an assignable estate, that is, not a rent, for such time as the lessee, his tenancy at will, the fact that it was heirs and assigns may occupy the "during the pleasure" of the lessees same for a sawmill yard," and pro- did not render it a tenancy at will. vlding that possession shall be yield- 104 TENANCY AT WILL. | 13 Coke 's dictum that such a lease at the will of the lessee creates a tenancy at will is, it is conceived, to be regarded as applying only in the absence of livery of seisin, which was in his day neces- '■ sary for the creation of an estate of freehold.^^^ That, if accom- panied by livery of seisin, such a lease created an estate for life is clearly asserted by high authority prior to his time,^^^ and there is nothing in the decisions referred to by him to lead to a differ- ent conclusion. If, however, the instrument lacks any formality of execution, such as a seal, which may be in the particular juris- diction necessary for the creation of a freehold estate, it will, as at common law, when unaccompanied by livery of seisin, create merely an estate at will. (2) Lease at will of lessor. The other branch of Coke's state- ment that "when the lease is made, to have and to hold at the will of the lessor, the law implieth it to be at the will of the lessee also," has been referred to with approval in several cases,^^^ and it seems that such a lease would at the present day ordinarily be construed as creating a tenancy at will.^** If, however, there is an express limitation of a greater estate, the mere fact that the lessor has an option to terminate the tenancy at any time will not, it seems, reduce the estate to one at will. For instance, if the lease in terms creates an estate for years, such an estate will 3«i That his statement is to be so without livery," tuus asserting by- understood see Effinger v. Lewis, 32 implication that it would be other- Pa. 367; Sergeant Mannings note, 7 wise were the requirement of livery Man. & G. 47; Leake, Dig. Prop. 207. satisfied. In Y. B. 10 Edw. 4, 18 b. 302 "A man leases to J. S. at the pi. 22, Littleton, J., says that "if will of the lessee, and held that if lease be made at me will of the it be by livery he has an estate for lessee or of a stranger, it is void, life, and no livery, then it is in for then he would have freehold, doubt; therefore quaere. Bro. Abr., which cannot be wiciiout livery of Estates, pi. 72, citing Y. B. 35 Hen. seisin." 6, f. 63, pi. 3, where the first propo- 363 Doe d. Pidgeon v. Richards, 4 sition seems to be assumed without Ind. 374; Cheever v. Pearson, 33 question. In Keilw. 162, pi. 4, it Mass. (16 Pick.) 266; Den d. Hum- was said that where a lease is at phries v. Humphries, 25 N. C. (3 the will of the lessee, "it will be Ired. Law) 362; Corby v. McSpadden, taken at the will of both the lessor 63 _Mo. App. 648. and lessee, for if it be taken at the 364 As in Den d. Humphries v. will of the lessee, peradventure, he Humphries, 25 N. C. (3 Ired. Law) would wish to have it for the term 362; Post v. Post, 14 Barb. (N. Y.) of his life, — and then tuis would be 253. a freehold which in no way can pass § 13 WHEN TENANCY ARISES. 105 be created subject to an option to terminate it,^*^ and so if the lease in terms creates an estate for life, and is properly executed for the conveyance of a freehold, the fact that the lessor is given an option to terminate the lessee 's estate does not, it would seem, make the holding one merely at will.^^® (3) Permissive possession. A tenancy at will may be created by a lease which expressly undertakes to create a tenancy at the will of Jjoth parties,^®'' and, as above indicated, such may be the effect of a lease at the will of the lessor or of the lessee. But apart from such cases, in which there is a particular refer- ence to the "will" of one or both parties, the tenancy may exist merely as a result of the taking of possession of land by permis- sion, "permissive possession," as it may be called, without any understanding as to the duration of the possession.''' ^^ In such a ease the tenant is under no obligation to remain in posses- sion nor is the owner under any obligation to let him remain, and consequently the tenancy may be discontinued at the will of either. Frequently, however, a permissive possession which would otherwise constitute a tenancy at will is, as w^ be seen 385 See ante, § 12 e. , kins, 134 Cal. 564, 66 Pac. 793; Herrell "All that the passage cited from v. Sizeland, 81 111. 547; Kankakee & Coke means is that if there is a de- S. R. Co. v. Horan, 131 111. 288, 23 N. mise with no term fixed between the E. 621; Packard v. Cleveland, C. C. parties except the will of the lessor, & St. L. R. Co., 46 111. App. 244; then it Is implied by law to be also Dame v. Uame, 38 N. H. 429, 75 Am. at the will of the tenant." Per Cot- Dec. 195; Wilson v. Merrill, 38 Mich, ton, L. J., in In re Threlfall, 16 Ch. 707j Appleton v. Buskirk, 67 Mich. Div. 274. 407, 34 N. W. 708; Goodenow v. Al- 366 See authorities cited in a learn- len, 68 Me. 308; Sanford v. Johnson ed note by Sergeant Manning in 7 24 Minn. 172; Leavitt v. Leavitt, 47 Man. & G. At p. 45. N. H. 329; Lamed v. Hudson, 60 N. 36T So it may be created by such Y. 102; Sarsfield v. Healy, 50 Barb, words as to hold "as long as both (N. Y.) 245; Den d. Humphries v. parties please" (Richardson v. Lang- Humphries, 25 N. C. (3 Ired. Law) ridge, 4 Taunt. 128), or "for so long 362- Howard v. Merriam, 59 Mass. as the parties shall mutually agree," (5 Cush.) 563; Johnson v. Johnson, with a provision that "either party ^3 ^ ^ ^g^. ^^^^^ ^ j^^^^ ^^^^^^ may put an end to" the relation. ^^.^^ ^3 R. I. 323, 50 Atl. 330; Say V. Stoddard, 27 Ohio St. 478. ' . . . q. „ r, o, ■=aJ__---- ^, „ , „„ , , „„,. Robb V. San Antonio St. R. Co., 82 368 Ellsworth V. Hale, 33 Ark. 633, ^. -r ■ T 1,11 „. a T, n^ -^ TTail 71 Tex. 392, 18 S. W. 707; Rich v. Bol- St. Louis, I. M. & S. R. Co. T. Hall, 71 ■ ' ' Ark 302, 74 S. W. 293; Jones v. ton, 46 Vt. 84. 14 Am. Rep. «15; Shay, 50 Cal. 508; Goodwin v. Per- Webb v. Seekins, 62 Wis. 26, 21 N. W. 106 TENANCY AT WILL. | 13 later,*^9 by reason of the reservation or payment of a periodic rent, changed into a tenancy from year to year or other periodic tenancy. In some states, on the other hand, what is ordinarily termed a tenancy from year to year or month to month is known as a tenancy at will, some qualifying terms being, however, ordinarily introduced to distinguish it from a tenancy at will of such character as we are now discussing.^''" The permissive possession above referred to which constitutes a tenancy at will may arise under a variety of circumstances, frequently even though the parties intended to create a different relation. For instance, if one goes into possession under a void conveyance, the grantee or lessee is a tenant at will. This was the case at common law when a deed of feoffment was not ac- companied by livery of seisin but the feoffee entered, since he entered by the consent of the feoffor.^'i And, likewise, if one enters under a conveyance in fee which is invalid under the statute of frauds, he becomes a tenant at will.^''^ The same principle has been quite frequently applied in the case of one entering under an invalid conveyance by way of lease,^'^^ ^s when it was invalid under the statutes of mort- main,3'* because unsealed,^'''' because not acknowledged or re- corded,^'^® because an improper execution of a power,^" or be- cause the lease was ultra vires^'^^ and such is primarily the status of one who enters under a lease which is invalid by reason 814; Utah Optical Co. v. Keith, 18 373 See Hayes v. Atlanta, 1 Ga, Utah, 464, 56 Pac. 155. App. 25, 57 S. E. 1087. So the owner of a building who 3-4 Magdalen Hospital v. Knotts, 4 moved it on the land of another App. Cas. 324; Bunting v. Sargent, pending negotiations for its purchase 13 Ch. Div. 330. by such other was held to be a ten- 375 Ecclesiastical Com'rs v. Merral, ant at will. Michael v. Curtis, 60 L. R. 4 Exch. 162; Arbez v. Exley, Conn. 363, 22 Atl. 949. Watkins & Co., 52 W. Va. 476, 44 S. 369 See post, § 14 b (2). E. 149, 61 L. R. A. 957. 370 See post, § 14 a, at notes 443 a, stb McCleran v. Benton, 73 Cal. 329, 443 b. 14 Pac. 879, 2 Am. St. Rep. 814; Bal- 371 Litt. § 70; Co. Litt. 57 b. timore & 0. R. Co. v. West, 57 Ohio 372 Jackson v. Rogers, 2 Caines St. 161, 49 N. E. 344. Cas. (N. Y.) 314; Ezelle v. Parker, "7 Doe d. Martin v. Watts, 7 Term 41 Miss. 520. And so where one en- R. 83. ters under an oral lease for life. 378 City of Bay St. Louis v. Han- Hooton V. Holt, 139 Mass. 54, 29 N. cock County, 80 Miss. 364, 32 So. 54 B. 221. (city occupying under lease which it § 13 WHEN TENANCY ARISES. 107 of the statute of frauds.*^* Other cases of such permissive possession rendering one a tenant at will may occur in the ease of one who enters into possession by permission of the owner pending negotiations for a lease,**" or a sale^^i to him, and of one permitted to occupy pending the performancje of an exe- cutory contract for a lease to him.^sa (4) Lease not naming duration of tenancy. There are occa- sional decisions to the effect that a lease which fails to name the period for which the tenancy is to endure creates a tenancy at ^jll 383 Such a lease, if insufficient to create a freehold estate be- cause not in writing or for any other cause, will no doubt have such an effect. It will constitute merely a case of permissive possession such as we have just been discussing. But these, de- cisions, so far as they may involve the view that a lease by one having an estate in fee, though sufficient in point of execution to create a freehold estate, will create a tenancy at will only, merely because no estate is expressly limited, are, it is conceived, erroneous. At common law such a lease, if accompanied by had no power to accept). In Rog- creating a life interest subject to ers V. Hill, 3 Ind. T. 562, 64 S. W. termination by sale. If the lease 536, one taking possession under a were executed in the manner neces- void Indian lease was held to be a sary for the conveyance of a life tenant at will. interest. 379 See post, § 25 g (1). The Massachusetts cases above 3S0 CJoggan V. Warwicker, 3 Car. cited do not seem to accord with & K. 40; Lennox v. Westney, 17 Ont. earlier cases in the same state. In 472; Fall v. Moore, 45 Minn. 515, 48 Hurd v. Gushing, 24 Mass. (7 Pick.) N, W. 404; Carteri v. Roberts, 140 169, it was decided that a grant and Cal. 164, 73 Pae. 81S. demise of land for an Indefinite time, 381 Doe d. Tomes v. Chamberlain, 5 and so long as the salt works intend- Mees. & W. 14; Swart v. Western ed to be erected thereon should con- Union Tel. Co., 142 Mich. 21, 12 Det. tinue to be used, created an estate Leg. N. 609, 105 N. W. 74. for life, determinable on the lessee 382 See post, § 65. ceasing to occupy the salt works. 383 Murray v. Cherrington, 99 Mass. And in Cook v. Bisbee, 35 Mass. (18 229; Gardner v. Hazleton, 121 Mass. Pick.) 527, a lease by which the 494; Amick v. Brubaker, 101 MO. lessee covenanted to pa,y a yearlj 473, 14 S. W. 627. So it has been rent so long as he should keep furn- held that a lease of land, to be held aces upon the premises, withoui until it is sold, creates a tenancy at naming any period, was held not to will only. Lea v. Hernandez, 10 Tex. be determinable at the will of the 137. It might have been regarded as lessor. 108 TENANCY AT WILL. § 13 livery of seisin, created an estate for life,^^^ and the abolition of the latter requirement cannot cause it to have a lesser effect. The fact that the old authorities turn upon the question whether livery had been made is occasionally lost sight of.^^s In juris- dictions where the common-law requirement of words of in- heritance for the creation of a fee simple is no longer in force, such a conveyance might be regarded as passing an estate in fee. simple, except as the use of words of demise and lease only might exclude any inference of an intention to transfer the lessor's entire interest, that is, a fee simple estate.^s? This view, that such a lease creates a freehold estate rather than a mere tenancy at will, is in accord with the well recognized rule that a conveyance which is of doubtful meaning will be construed in favor of the grantee rather than the grantor. There are occasional decisions in this country which seem to recognize in somewhat obscure terms that such a lease may be effective to create, a freehold estate.^*^ 384 See ante, note 9. So in Bro. Bac. Abr., Estates (HI). But that Abr., Leases, pi. 67, it is said: "If such passages In these earlier works I lease land to W. M., to hold till 100 do not refer to a case where the cod- pounds be paid, and without livery, veyanoe is otherwise sufficient to it is only a lease at will, for the create a freehold plainly appears uncertainty, but if he makes livery from the quotations in note 9, supra, the lessee will have it for life on con- aso in Wright v. Hardy, 76 Miss. dltion, implied to cease if the 100 524, 24 So. 697, it was decided, or pounds be levied." And see Blanford rather assumed, that an indenture V. Blanford, 3 Bulst. 100, citing the not naming any term was a convey- Bishop of Bath's Case, 6 Coke, 35, to ance in fee, although the words "de- the effect that if "one doth lease his mise and let" were used. land to one, being of a certain yearly ss- in Reed v. Lewis, 74 Ind. 433, value, until his debts are paid, 39 Am. Rep. 88, where a lease was this is but a lease at will without made to continue until a certain con- livery made, but if he makes livery, tingency, the court questioned wheth- he hath a freehold." er it did not create a fee. 385 See e. g., Murray v. Cherrington, in Sweetser v. McKenney, 65 Me. S9 Mass, 229. So in Woodfall, Landl. 225, and Holley v. Young, 66 Me. 520, & Ten. (16th Ed.) 239, the author leases for a term named and also (or editor) says that "where a per- giving the lessee the right to retain son lets land to another without lim- possession as much longer as he de- iting any certain or determinate es- sired were upheld, apparently, as giv- tate, a tenancy at will is thereby ing the lessees possession for an in- created," citing Com. Dig., Estates definite period. In the first case the (H 1), as he might also have cited court says that the lessor was "es- §13 WHEN TENANCY ARISES. 109 (5) Tacit acquiescence in another's possession. There are a number of cases which suggest the view that the mere failure of the owner of land to object to the unauthorized holding of possession by another constitutes the latter a tenant at wiU of the owner, as showing what we have before referred to as a "permissive possession, "sss tut it is difficult to see how this can topped" to bring dispossessory pro- ceedings, but, it is submitted, the doctrine of estoppel was not appli- cable. If it was a lease for an in- definite time, equivalent to a lease in fee or for life, this was sufficient rea- son for his inability to dispossess the lessee. If, on the other hand, the lease created only a tenancy at will, the lessor would not have been estopped to dispossess the tenant. In neither of these cases does the court undertake to name the lessee's estate, and as before stated, it does not seem that the lessee could con- tinue to hold at his option unless he had a freehold estate. In Thurber v. Dwyer, 10 R. I. 355, where a lease was in terms "to hold for so long a time as a certain build- ing on the lessor's land next ad- joining should remain in the same location," the court said that were the lease valid, though it must term- inate upon the removal of the build- ing without notice, no notice to quit would avail to put an end to it. This seems to be equivalent to saying that it conveys a fee simple, determ- inable only upon the removal of the building.- The court held that the lease was invalid, because not record- ed as required by statute, in the case of leases creating estates greater than a year. In Warner v. Tanner, 38 Ohio St. 118, it was held that a lease to B. for the erection of a "cheese house" on the premises, the land to revert to the lessor on the cessation of the manufacture of cheese thereon, was a lease for life, terminq,ble upon the cessation of such use of the land. The court refers to the fact that the lease required the lessee to make improvements on the land, and that he did so, as showing that it was not a lease at will or from year to year It may, however, be questioned whether the presence of these ele- ments could affect the nature of the tenancy. If the lease was sufficient to convey :a freehold, the absence of a provision for improvements could not cut it down, and if the lease was such as to create a tenancy at will or from year to year only, no cove- nant for the erection of the buildings could turn it into an estate for life. 38.^ See Fischer v. Johnson, 106 Iowa, 181, 76 N. W. 658; Shean v. Withers, 51 Ky. (12 B. Mon.) 441; Hoffman v. Clark, 63 Mich. 175, 29 N. W. 695, 4 Am. St. Rep. 836; Doe d. Mann v. Keith, 4 U. C. Q. B. (O. S.) 86. In Stamper v. Griffin, 20 Ga. 312, 65 Am. Dec. 628, it is said that one who enters as a "squatter," disclaim- ing title, with the knowledge of the owner, holds as tenant at will. There, however, the question was merely whether such a person could claim adversely without the owner's knowledge. In Zilch v. Young, 184 111. 333, 56 N. E. 338, it was decided that if one enters as licensee merely to pile lumber on land, and thereaf- ter builds a house on the land, and the owner, on discovering this. 110 TENANCY AT WILL. | 13 be. Such a view appears to be opposed to the almost numberless cases in which a claim to recover land has been held to be barred by the statute of limitations. If the plaintiff's failure, during the period named in the statute or a less period, to object to the defendant's wrongful possession, renders the latter the plain- tiff's tenant, the statute of limitations becomes inapplicable, since the existence of the relation of tenancy deprives the pos- session of the element of hostility necessary for the application of the stattite.389 The effect would be that the statute could apply only when the rightful owner had objected to the other's Avrongful possession, and he could always exclude the operation of the statute to his disadvantage by failing so to object. Another consideration in this respect is that the cases asserting this doc- trine of the creation of a tenancy by silent acquiescence make no suggestions as to the period which must elapse after the commence- ment of the wrongful holding before the tenancy can be regarded as arising, and from the nature of the case no definite period can be named. It has been said in this connection by a distin- guished judge that "mere silence on the part of the plaintiff did not constitute or make evidence of a tenancy at will. If it did, when did the silence have that effect. At the end of a day — a week — a month — a year — or when. When there is no duty to do anything, mere lapse of time and nothing done, is no evidence of anything. ' '^^^ In view of these considerations and of the well makes no objection, the former be- 64 Iowa, 84, 19 N. W. 852, a tenant comes tenant at will. A like view remaining in possession, with the was taken where an employe, after knowledge of the purchaser of the the end of his employment, remained premises under a judgment against some time In possession with the the lessor prior to the lease, was re- tacit acquiescence of the owner, garded as a tenant at will, though Jennings v. McCarthy, 40 N. Y. St. apparently there had been merely a Rep. 678, 16 N. Y. Supp. 161; Ker- tacit acquiescence in his possession rains v. People, 60 N. Y. 221, 19 Am. by such purchaser. In Dobbins v. St. Rep. 158. In Bedford v. McEl- Lusch, 53 Iowa, 304, 5 N. W. 205, an herron, 2 Serg. & R. (Pa.) 49, it execution defendant so retaining pos- was held that where a tenant for session was so regarded, years held over seventeen years, sso See ante, § 4. there was a presumption of consent sso Bramwell, B., in Ley v. Peter, by the owner creating a tenancy at 3 Hurl. & N. 101, Watson and Chan- will or from year to year. nell, B. B., were of the same opin- In Munson v. Plummer, 59 Iowa, ion. Martin B., apparently was not. 120, 12 N. W. 806, and Kane v. Mink, § 13 TERMINATION. HI recognized distinction between a tenant and a trespasser.^^i and in spite of the cases before referred to apparently to the contrary, a tenancy at will, like any other tenancy, can, it is submitted, be created only by a legal act constituting a lease or demise, and not by a mere forbearance to act. There ase dicta at least to this effect.392 (6) Statutory provisions. Occasionally a statute provides that a person in possession of land with the consent of the owner shall be presumed to be a tenant at will unless the contrary is' shown.*93 This would seem to be the law apart from any stat- ute. On the other hand, in one state at least, it is expressly pro- vided that a tenancy at will shall arise only by express agree- ment to that effect,^'* and this seems to be the effect of the statutes before referred to,^®^ providing that a tenancy of un- defined duration shall extend for a certain period or until a certain time of the year. b. Termination of the tenancy — (1) By the landlord. A tenancy at will may, at common law, be terminated immediately by the landlord by giving a notice to that effect, that is by mak- ing a demand for possession.**^ Likewise, at common law, with- 391 See ante, § 6. ancy from year to year." See post, 392 In Doe d. Stanway v. Rock, 4 § 14 a. Man. & G. 30 It was said, by Tindal, 394 in Indiana (Burns' Ann. St. C. J., that to create a tenancy at will 1901, § 7089, it is provided that a "something must be done by the tenancy at will cannot arise but by lessor." In Blum v. Robertson, 24 express contract, and that all gen- Cal. 127, it is said that an express eral tenancies in which the prem- grant or contract is necessary. See. ises are occupied by the consent, also, Godfrey v. Walker, 42 Ga. 562; either express or constructive, of the Moore v. Smith, 56 N. J. Law, 446, 29 landlord, shall be deemed tenancies Atl. 159; Bodwell Granite Co. v. from year to year. "General tenan- Lane, 83 Me. 168, 21 Atl. 829; Mar- cies" within this provision are held tin V. Knapp, 57 Iowa, 336, 10 N. W. to be those the duration of which 721; Ley v. Peter, 3 Hurl. & N. 101. is not fixed by agreement, and con- 393 Iowa Code 1897, § 2991; Kan. sequently a mere permissive holding Gen. St. 1905, § 4051. N. H. Pub. St. does not there create a tenancy at 1901, c. 246, § 1, provides that every will. See cases cited post, § 14 b (2) tenancy shall be deemed to be at (c). will, and the rent payable upon de- 395 See ante, § 12 c (3) (0). mand, unless a different contract is 896 Co. Litt. 55 b; 2 Blackst. Comm. shown. In this state the expression 14b; Locke v. Matthews, 13 C. B. "tenancy at will" apparently includes (N. S.) 753; Pollen v. Brewer, 7 C. what Is generally known as a "ten- B. (N. S.) 371; Blackley v. Coljs, 112 TENANCY AT WILL. | 13 out any express notice on the landlord 's part as to his desire or intention in this respect, acts of ownership by him on the prem- ises inconsistent with the continued existence of the tenancy, such as entering and cutting down trees or carrying away stone without the tenant's consent, are ordinarily regarded as indicat- ing the owner's will to terminate the tenancy and have that effect.39^ In a number of states, however, by force either of an express statute or of judicial decisions, the landlord cannot of his own volition terminate the tenancy without a notice of some length of time, that is the tenant is not bound to relinquish pos- session to the landlord immediately upon the latter 's expression of a desire to take possession. The existence and effect of these requirements will be considered in another place.^^s The express demand for possession which at common law entitles the landlord to immediate possession need not be made upon the land.^*^ There is a decision in this country that the demand must be brought home to the tenant, and that the act of the landlord in going on the land and declaring the tenancy at an end, if not done within the hearing of the tenant, is nuga- tory .*oo The common-law rule, however, was apparently other- wise,^"! and even mere acts on the part of the landlord, if done on the land, inconsistent with the continuance of the tenancy,' have been decided to be sufficient, although the tenant is unaware of the doing of such acts.*''^ 6 Colo. 349; Den d. howell v. How- New York Real Prop. Law, § 202, ell, 29 N. C. (7 Ired. Law) 496, 47 fixing the duration of tenancies in Am. Dec. 335; Curl v. Lowell, 36 New York city when the duration Mass. (19 Pick.) 25; Whitney v. is not specified. Jennings v. McCar- Swett, 22 N. H. 10, 53 Am. Dec. 228. thy, 40 N. Y. St. Rep. 678, 16 N. Y. The institution of an action of Supp. 161. ejectment is a sufficient demand or sog Co. Lltt. 55 b. notice. Chamberlain v. Donahue, 4oi Cook v. Cook,^ 28 Ala. 660. 45 Vt. 50; Locke v. Matthews, 13 C. 401 "The lessor may '^y actual en- B. (N. S.) 753. try into the ground determine his S97 Co. Litt. 55 b; Doe d. Bennett will in the absence of the lessee, but V. Turner, 7 Mees. & W. 226; Rising by words spoken (away) from the V. Stannard, 17 Mass. 282; Den d. ground the will Is not determined Howell V. Howell, 29 N. C. (7 Ired. until the lessee hath notice." Co. Law) 496, 47 Am. Dec. 335. Litt. 55 b. And to the same effect 308 See post, § 196 b. see Doe d. Davies v. Thomas, 6 Exch. A tenancy expressed to be at the 854. will of either party Is not within 402 Ball v. Cullimore, 2 Cromp. M. § 13 TERMINATION. 113 Although the landlord may at coinmon law terminate the tenancy by a mere demand for possession or by acts of a certain character as above set forth, he cannot, until he has in some way terminated the tenancy, bring ejectment against the tenant to recover the land,*"'* or summary proceedings under the stat- ute,*^* or trespass to try title.*^^ There seems at common law to be no restriction as to the time at which a tenancy at will may be terminated by the lessor, except to this extent, that if he terminates it between rent days he loses the rent.*"® (2) By the tenant. The tenant may terminate the tenancy by relinquishing possession.*"'^ A merd\notice by him, however, that the tenancy is to be regarded as at an end, without relin- & R. 120; Pinhorn v. Souster, S Exch. a previous one which failed on a 763. technicality. In Doe d. Price v. Price, 9 Bing. *o* Wheeler v. Wood, 25 Me. 287. 356, it was held sufficient to termin- 4ob Jones v. Jones, 2 Rich. Law (S. ate the tenancy that the owner notl- c) 542. fied the tenant that unless he paid 400 gee post, § 176 a, at note 373. what he owed measures would be im- in yin. Abr., Estates (B c), pub- mediately taken to recover posses- ughed about 1750, there is a long sion, the implied ofCer to allow the statement to the general effect that retention of possession not a^ipearing tji^ lessor cannot. In the case of to have been accepted. So when the arable pasture land, terminate the owner entered and required the ten- tenancy in the spring, and that the ant's employes to stop all work on tenant cannot terminate it in the the premises. Moore v. Boyd, 24 Me. spring if he has faUed to sow, or in 242. the fall. This may have been the 4i>8 Goodtitle v. Herbert, 4 Term law as enforced by the courts before R. 680; Right v. Beard, 13 East, 210; the time at which, it is conceived, the McKinnon v. McDonald, 2 N. S. Law doctrine of periodic tenancies in- R. 7; Allen v. Mansfield, 82 Mo. 688; f erred from the reservation or pay- Prisbie v. Price, 27 CaL 253; Zilch ment of a periodic rent became es- V. Young, 184 111. 333, 56 N. E. 318; tablished (post, § 14 b (2) ), but the Jackson v. Aldrieh, 13 Johns. (N. T.) authorities cited do not support the 106; Jones v. Temple 87 Va. 210, 12 statement, and the present writer S. E. 404, 24 Am. St. Rep. 649. has discovered no other mention of In Chamberlain v, Donahue, 45 Vt. such restrictions upon the termina- 50, It is stated that the brining of tion of tenancies at will, an action of ejectment by the owner iot Say v. Stoddard, 27 Ohio St. of the land terminated the tenancy. 478 ; Chandler v. Thurston, 27 Mass. But it will be noticed that the action (10 Pick.) 205; Shaw v. Hill, 79 referred to was not that in which the Mich. 86, 44 N. W. 422; Dolan V. opinion In question was rendered, but Scott, 25 Wash. 214, 66 Pac. 190; 4 L. and Ten. 8. 114 TENANCY AT WILL. j I3 quishment fi possession, will have no effect.^''^ Furthermore, the tenancy may be terminated at the landlord's option by any acts on the part of the tenant of a character inconsistent with his holding as such. So it is terminated if by words or acts he disclaims holding under his landlord, as when he asserts a fee simple title to the land.*''^ And, likewise, the commission of voluntary waste by the tenant is regarded as being so in- consistent with his obligations as tenant at will as to termin- ate the tenancy at the landlord's option,*!" and within this prin- ciple has been held to fall the act of the tenant in authorizing the use of the premises as a smallpox hospital to the diminution of the value of the property.*^! If the tenant at will is required by statute to give notice in order to terminate the tenancy,*!^ he cannot terminate it by a mere relinquishment of possession. But even though notice is re- quired by statute the requirement may be waived by the land- lord's acceptance of possession or otherwise.*!^ The entrance by the parties to an existing tenancy at will into an agreement that the tenant shall give up. possession at a future Warner v. Page, 4 Vt. 291, 24 Am. ment against him under such cir- Dec. 604. cumstances that he led the oflacer to 408 Co. LItt. 55 b, Hargrave's note, believe that the land belonged to him It was held to be no defense to an in fee. Campbell v. Proctor, 6 Me. action for rent against a tenant at (6 Greenl.) 12, and where he ac- win that he was prevented from re- cepted and recorded a conveyance of linquishing possession by the issue the premises in fee. Bennock v. of an injunction in a proceeding to Whipple, 12 Me. (3 Fairf.) 346, 28 which tthe plaintiff was not a party. Am. Dec. 186. Bartlett v. Robinson, 52 Neb. 715, 72 "» Co. Litt. 56 a; Esty v. Baker, N. W. 1053. 50 Me. 325, 79 Am. Dec. 616; Phil- ioo Simpson v. Applegate, 75 Cal. lips v. Covert, 7 Johns (N. Y.) 1; 342, 17 Pac. 237; McCarthy v. Brown, Pettengill v. Evans, 5 N. H. 54; 113 Cal. 15, 45 Pac. 14, 35 L. R. A Perry v. Carr, 44 N. H. 118; Daniels 267; Appleton v. Ames, 150 Mass. v. Pond, 38 Mass. (21 Pick.) 367, 32 34, 22 N. E. 69, 5 L. R. A. 206; Isaacs Am. Dec. 269; Chalmers v. Smith, V. Gearhart, 51 Ky. (12 B. Mon.) 152 Mass. 561, 26 N. E. 95, 11 L. R. 231; Currier v. Earl, 13 Me. 216; A. 769. Russell V. Fabyan, 34 N. H. 218; *" Hersey v. Chapin, 162 Mass. Den d. Love v. Edmonston, 23 N. C. 176, 38 N. E. 442. (1 Ired. Law) 152; Ramsey v. Hend- "2 See post, § 196 b. erson, 91 Mo. 560, 4 S. W. 408. So us See Farson v. Goodale, 90 Mass. where the tenant allowed the levy of (8 Allen) 202, and post, § 197. execution on the land under a judg- § 13 TERMINATION. 115 day named will, it has been held, terminate the tenancy at will, the tenancy being thereby changed into one for a fixed term, a tenancy for years,*!* though this could not be the case unless the agree- ment were executed with the formalities necessary in the case of a lease for that length of time. (3) By death of party. The relation between the owner and the tenant at will is regarded as personal in its nature, and con- sequently the tenancy is terpiinated by the death of either the landlord or the tenant.*!*"^ But this is not the case when one of two joint lessors or joint lessees dies.*is The dissolution of a corporation party to the relation will likewise, it has been de- cided, terminate the tenancy .*i® (4) By transfer^^(a) By the landlord. A conveyance by the landlord will terminate the tenancy as soon as the making of the conveyance is known to the tenant,*!'' and a conveyance of merely part of the premises will have the same effect.*!^ Nor need the conveyance be of the whole interest of the landlord, but a written lease by him, retaining a reversion, is equally effec- tive for this purpose,*!** ^s is the conveyance of an undivided 4i*Engels V. Mitchell, 30 Minn. us Disdale v. lies, 2 Lev. 88; 122, 14 N. W. 510-. Hinchman v. lies, 1 Vent. 247; Hil- 414a Co. Lltt. 57 b, 62 t); 2 Blackst. dreth v. Conant, 51 Mass. (IQ Mete.) Comm. 146; Turner v. Barnes, 2 298; Wardell v. Etter, 143 Mass. 19, Best. & S. 435; Reed v. Reed, 48 Me. S N. E. 420; Cofran v. Shepard, 148 388; Rising v. Stannard, 17 Mass. Mass. 582, 20 N. E. 181; Mentzer v. 282; Say v. Stoddard, 27 Ohio St. Hudson Sav. Bank, 197 Mass. 328, 83 478; Manchester v. Doddridge, 3 Ind. N. E. 1102; Eclipse Oil Co. v. South 360. And this even in the case of a Penn Oil Co., 47 W. Va. 84, 34 S. E. lease to one "and his heirs," to hold 923; Seavey v. Cloudman, 90 Me. at the will of the lessor. Lift. § 82; 536, 38 Atl. 540. Go. L*itt. 62 b. A lease by a husband of premises 415 Co. Litt. 55 b; Henstead's Case, held by him and his wife by the en- 5 Coke, 10 a. tirety was held to terminate a ten- 416 Lea v. Hernandez, 10 Tex. 137. ancy at will, since the control of *i7 Doe d. Davis v. ' Thomas, 6 such an estate during their joint Bxch. 854; Esty r. Baker, 50 Me. lives is, at the common law, vested 325, 79 Am. Dec. 616; Curtis v. Gal- in the husband. Pray v. Stebbins, vln, 83 Mas^. (1 Allen) 215; Lash 141 Mass. 219, 4 N. B. 824, 55 Am. V. Ames, 171 Mass. 487, 50 N. E. 996; Rep. 462. Davis V. Brocklebank, 9 N. H. 73; That the person who made the Den d. Howell v. Howell, 29 N. C. lease at will makes a subsequent (7 Ired Law) 496. written lease will not terminate the 418 Emmes v. Feeley, 132 Mass. 346. tenancy at will if the lessor himself 116 TENANCY AT WILL,. | 13 interest.*2o A mortgage by tlie landlord has also been held to terminate the tenancy,*2i but this could, it seems, be the case only where the mortgage transfers the legal title to the mortgagee. A transfer of the landlord's interest by operation of law, as by sale under a judgment,^ ^^ qj. the vesting of the property in a trustee in bankruptey,^^* has the same effect as a voluntary conveyance in terminating the tenancy. The taking of a mere easement, however, in the exercise of the right of eminent domain, not followed by actual eviction, is without any such result.*24 While it is recognized that a conveyance or lease by the land- lord does not terminate the tenancy till the tenant receives notice thereof in one way or the other, *2s the notice to the tenant need not be in any particular form.^^e There are sugggestions in the decisions of one state to the effect that such a notice does not give the landlord a right to proceed against the tenant as wrong- fully holding over until the lapse of a day or two after it is given, but no clear rule has been stated in this regard.*^' had no estate whicli lie could lease, *22 Marsters v. Cling, 163 Mass. as where he was a tenant at will of 477, 40 N. E. 763. the rightful owner; and the sub- 423 Doe d. Bavies v. Thomas, 6 tenant at will is not ^stopped to Exch. 854. show the character of his landlord's *24 Bmmes v. Feeley, 132 Mass. holding for this purpose. Hilbourn 346. v. Fogg, 99 Mass. 11. 423 Doe d. Davies v. Thomas, G *2o MeFarland v. Chase, 73 Mass. Exeh. 854; Pratt v. Farrar, 92 Mass. (7 Gray) 462, where all the members (10 Allen) 519; Furlong v. Leary, of a firm owning the property con- 62 Mass. (8 Cush.) 409. veyed to another firm consisting of It was different in the case of a themselves and one other, thus in conveyance by livery of seisin, this effect transferring an undivided in- being a notorious act done on land, terest to such other. of which the tenant was presumed to So the tenancy is terminated by a have notice. Ball v. Cullimore, 2 conveyance of his interest by one co- Cromp. M. & R. 120. tenant of the reversion (Cofran v. 42e Mizner v. Munroe, 76 Mass. (10 Shepard, 148 Mass. 582, 20 N. B. Gray) 290; Pratt v. Farrar, 92 Mass. 181) as it is in the case of a partition (10 Allen) 519. , by exchange of conveyances by pari 427 See Pratt v. Farrar, 92 Mass. owners. Rising v. Stannard, 17 (10 Allen) 519; Arnold v. Nash, 126 Mass. 282. Mass. 397; Hooton v. Holt, 13? Mass. 421 Jarman v. Hale [1899] 1 Q. B. 54, 29 N. E. 221. 994. § 13 ' TERMINATION. 117 The tenant cannot complain, after his interest has come to an end by reason of a transfer by the landlord, that the latter in- duced the transferee to eject him.*^^ (b) By the tenant. The tenant has no interest which he can transfer, and an attempted assignment or sublease by him is re- garded as inconsistent with the continued existence of the ten- ancy and terminates it.*"* Such termination does not, however, become effective until the owner acqiaires knowledge of the transfer.*30 But though the tenant cannot transfer his interest as against the owner, a transfer by him is effective as against himself, making the transferee a tenant at will to that extent,*^^ and the owner may recognize the transferee as tenant and so create a new tenancy at wiU.*32 (5) By special limitation. We have previously spoken of the cases in which a tenancy for life or years may by force of an express limitation come to an end upon the happening of some contingency before the expiration of the life or term named, such a limitation being known as a "special" or "conditional" limitation.*33 Under the common-law doctrine that a tenancy at wiU is terminable immediately at the will of the landlord, a special limitation in connection with such a tenancy would have 428 Groustra v. Bourges, 141 Mass. lessor on the covenant for CLuiet en- 7, 4 N. E. 623. joyment in a lease made by him to 429 Co. Litt. 57 a, and Hargrave'a another. note; Birch v. Wright, 1 Term R. 432Landon v. Townsend, 129 N. Y. 378; Pinhom v. Souster, 8 Exch. 166, 29 N. E. 71. Where the owner 763; Reckhow v. Schanck, 43 N. Y. brought suit for use and occupation 448; McLeran v. Benton, 73 Cal. against the tenant's transferee, it 329, 2 Am. St. Rep. 81; Dean v. Com- -"as held that it was a question for stock, 32 III. 173; Cooper v. Adams, the jury whether this made the lat- 60 Mass. (6 Cush.) 87; Cunningham ^^^ ^^ tenant Cunningham y. Hol- er i,t oo t% i T^ .,1 ton, 55 Me. 33; Austin v. Thomson, V. Holton, 55 Me. 33; Doak v. Donel- „ .^ , ,j . i. • 45 N. H. 117. So it wa^ held to be a son's Lessee. 10 Tenn. {2 Yerg.) 249, ^^^^.^.^^ ^^^ ^^^ .^^^^^ ^^ ^^.^^^^^ 24 Am. Dec. 485; Austin v. Thomson, ^^ether the owner recognized the 45 N. H. 117. original tenant's assignee as tenant 430 Carpenter v. Colins, Yel. 73; ijy sending to the original tenant Pinhorn v. Souster, 8 Exch. 763. a notice of increase of rent addressed 431 Holbrook v. Yoimg, 108 Mass. by name to him "or the present occu- 85; Meier v. Thiemann, 15 Mo. App. pant." King v. Lawson, 98 Mass. 307. In the former of these cases 309. the tenant at will was held liable as 433 See ante, § 12 d. 118 TENANCY AT WILL. § 13 been almost useless, and the possibility of its presence in that connection appears never to have been suggested. Such a pro- vision, however, may become of importance when the statute requires a notice to terminate the tenancy, and it has been held to be effective for this purpose, although the statutory notice is not given.434 The fact that the rent under a tenancy at will is payable in advance does not create a special limitation termin- ating the tenancy on nonpayment.*^'' (6) Tenant's rights on termination. Not only has the ten- ant at will, upon the termination of the tenancy otherwise than by his own act, the right to emblements,*^® but he also has the right for a reasonable time to enter to remove his goods from the premises.*^'' If he fails to remove his goods within a rea- sonable time, the landlord may, it has been held, remove the goods and store them subject to the tenant's order, in which case they are at the latter 's risk.*^* c. Nature of the tenant's interest. Though a tenant at will has no interest which he can transfer to another, and though in some jurisdictions he holds entirely at the will of the landlord, he nevertheless has, it seems, what may be called an "estate," since he has not only the possession, but as against third persons the right of possession, which he may assert by an action of tres- pass, or, it seems, an action of ejectment.*^® That he has an estate is assumed by the standard writers.**", 441 *34 Ashley v. Warner, 77 Mass. (11 43c See post, § 251. Gray) 43 (tenancy at will "so long *37 Litt. § 69; Cornish v. Stubbs, as the tenant keeps a good school"). L. R. 5 C. P. 334; Moore v. Boyd, 24 In McGee v. Gibson, 40 Ky. (1 B. Me. 242; Ellis v. Paige, 18 Mass. (1 Mon.) 105, an employe was held to Pick.) 43; Clark v. Wheelock, 99 be a tenant at will of the house Mass. 14; Leavitt v. Leavitt, 47 N. occupied by him; the tenancy to ex- H. 329; Payton v. Sherburne, 15 R. pire with his employment. In Good- I. 213, 2 Atl. 300; Amsden v. Blais- enow V. Allen, 68 Me. 308, the qu«s- dell, 60 Vt. 386, 15 Atl. 332. tion is not decided whether the stat- ^^s Lasn v. Ames, 171 Mass. 487, ute requiring notice precludes the 50 N. E. 996. See post, § 255 b. termination of the tenancy by such *39 See post, chapter XXXIII. a clause. no. m gee e. g., 2 Blackst. Comm. «5 Sprague V. Quinn, 108 Mass. 553, 145; 1 Cruise's Dig. tit. 9, c. 1, § 2; following Elliott v. Stone, 66 Mass. Williams, Real Prop. (18th Ed.) 434. (12 Cush.) 174, and distinguishing So Coke, in speaking of tenancy at Elliott V. Stone, 67 Mass. (1 Grayl will, refers to "the estate of the 571. lessee." Co. Litt. 55 a. § 14 PERIODIC TENANCIES. Ug § 14. Periodic tenancies. a. General considerations. The expression "periodic ten- ancy" is a convenient designation for all tenancies which are in their nature such as will endure for a certain period, and will continue for subsequent successive periods of the same length, unless terminated by due notice, at the end either of the first period or of one of the succeeding periods. The typical tenancy of this character is that from "year to year," but the essential qualities of a tenancy from "quarter to quarter," "from month to month," or "from week to week," are the same. Such a tenancy is occasionally spoken of as a " yearly, " " quart- erly, " "monthly," or "weekly" tenancy, or as a tenancy "by the" year, quarter, month or week. These expressions can, how- ever, not be regarded as technically accurate, and are to be avoided as tending to confuse such a tenancy with a tenancy for years, which will continue for the period named, whether one or more years, a quarter, a month, or a week. In New York, for instance, the expression "monthly tenancy" has been applied by the courts sometimes to a periodic tenancy measured by the month, and sometimes to a tenancy for the term of a month.*** The use of this ambiguous expression "monthly tenancy" has contributed to confuse the law in that state with reference to periodic tenancies measured by the month.*** In some states a tenancy apparently such as is ordinarily re- ferred to as a tenancy from year to year is referred to as a "tenancy at will from year to year," or less frequently as a 442 See, for instance, Douglass v. month" was held to constitute a hir- Seiferd, 18 Misc. 188, 41 N. Y. ing "for the month" in Fash v. Kav- Supp. 289; Olson v. Schevlovitz, 91 anagh, 24 How. Pr. (N. Y.) 347. App. Div. 405, 86 N. Y. Supp. 834; Judge McAdam, who has written with Steffens v. Earl, 40 N. J. Law, 128, especial reference to the law of 29 Am. Rep. 214, where the express- that state, uses the expressions ion "yearly" or "monthly" is used "yearly" and "monthly'' to cov- with reference to a periodic tenancy, er tenancies for a year and for a while the expression "monthly" ten- month, as well as tenancies from ancy is given the meaning of a ten- year to year and from month to ancy for a month in Vernon v. Gil- month. See McAdam, Landl. & Ten. bert, 30 Misc. 112, 61 N. Y. Supp. 896 (3d Ed.) §§ 38-40. (semble); Bent v. Renken, 86 N. Y. *« See post, § 14 c (1), at notes Supp. 110. And so a hiring "by the 506, 507. 120 PERIODIC TENANCIES. | 14 "tenancy at will,"**^" in recognition, it would seem, of the fact that either party may terminate it at his will at the end of any year by giving the previous legal notice. The expression "ten- ancy at will from month to month" is also to be found.^^^b Occasionally, a periodic tenancy has been regarded as within a provision of a statute referring in terms to a "tenancy at will."*** Occasionally, while applying the term tenancy at will to both classes of tenancies, that is, what we have previously dis- cussed under the name of tenancy at will and also what we are now discussing under the name of tenancy from year to year, courts or text writers have undertaken to distinguish between the two by calling the first "strict" tenancy at will and the second "general" tenancy at wUl.**® While the first appellation is not inappropriate, it emphasizing the fact that this tenancy is "strictly" in accordance with the common-law conception of a tenancy at will, the term "general" as applied to a periodic tenancy seems in no way suggestive of the peculiar characteris- tics of such a tenancy. It was probably adopted from the ex- pressions of the courts that such a tenancy arose in the case of a "general letting," that is when there was no specification of the duration of the tenancy.**^ As stated elsewhere, it has been recognized from an early per- iod that a tenant at will has the right, after the termination of 443a Currier v. Perley, 24 N. H. will, and by sufferance, an estate 219; Perry v. Carr, 44 N. H. 118; from year to year or from month Leavitt v. Leavitt, 47 N. H. 329; to month is to tie regarded as in- Holmes v. Wood, 88 Mich. 435, 50 N. eluded in "estate at will." Hunter v. W. 323; Huntington v. Parkhurst, 87 Frost, 47 Minn. 1, 49 N. W. 327; Hil- Mich. 38, 49 N. W. 597, 24 Am. St sendegen v. Scheiclj, 55 Mich. 468, 21 Rep. 146; Blanehard v. Bowers, 67 N. "W. 894. And a tenancy from year Vt 403, 31 Atl. 848. See Prouty v. to year was held to be terminable by Prouty, 5 How. Pr. (N. Y.) 81, 3 Code the notice prescribed for a tenancy R. lei; Park v. Castle, 19. How. Pr. at will, no notice for a tenancy from (N. Y.) 29. year to year being named in the 443b Prendergast v. Searle, 74 statute. Rosenblatt v. Perkins, 18 Minn. 333, 77 N. W. 231; Blair v. Or. 156, 22 Pac. 598, 6 L. R. A. 257. Mason, 64 N. H. 487, 13 Atl. 871. See 445 See e. g., Taylor, Landl. & Ten. Haines v. Beach, 90 Mich. 563, 51 § 60; Huntington v. Parkhurst, 87 N. W. 644. Mich. 38, 49 N. W. 597, 24 Am. St. 444 So it has been held that where Rep. 146. the statute divides estates into those 446 gee post, § 14 b (2). of inheritance, for life, for years, at § 14 GENERAL CONSIDERATION. 121 the tenancy, to crops planted by Mm, and that he may enter freely for the purpose of their cultivation and removal. This privilege, in the case of land covered with crops, in efEect gava the use of the land to the tenant until the maturity of the crop, although the tenancy had been terminated by the landlord at a time considerably previous, and during this period the tenant, though thus enjoying the use of the land, was not, it seems, liable to rent. On the other hand, the liability of the tenant to be deprived of all rights of occupancy other than the growing of his crops, and presumably the difficulties attending the culti- vation of crops on land the nominal possession of which was in another, rendered a tenancy terminable at the landlord's will an unsatisfactory class of holding. It was, perhaps, considera- tions such as these which first induced the recognition by the courts of tenancies from year to year, terminabLe at the will of the landlord or tenant at the end of any year. The earlier authorities bearing upon the subject of such tenancies are scanty and somewhat obseure.**'^ The other classes of periodic tenancies are, no doubt, of later origia than the tenancies from year to year, and are merely a development therefrom as a result of the application of the prin- 4« Bracton (f 168) speaks of "a pressed the view that the lessor tenant at will from day to day or alone could terminate it, hut that from year to year," without stating "the will of the lessor" should have the character of such a tenancy. a reasonable construction. In Anony- As late as the reign of Henry the mous, Keilw. 163, pi. 5 (3 Hen. 8, A. eighth, the meaning of the expres- D. 1512), It was said that under sion "from year to year, as the par- such a lease, if the lessor permitted ties please," was the subject of ques- the lessee to enter upon the second tion. Fitzherbert and Brooke, J J., year without notifying him "of his apparently regarding it as creating will," the tenant could occupy for merely a lease at will, and Brudenell, that year. In Bro. Abr., Lease, pi. J., and Pollard, C. J., regarding it 53, it is said: "A man leases for a as creating a tenancy for each year year and so from year to year at the if the land was occupied for any will of the parties, or so long as both part of such year. Potkin's Case, parties please; then when one year Y. B. 14 Hen. 8, 10 (A. D. 1523). In is passed and another year corn- Anonymous, Keilw. 65, pi. 6 (20 Hen. menced, the lessor shall not oust the 7, A. D. 1505), the question was lessee until the second year be fin- whether a lessee under a lease "from Ished, and the lessee shall have no- year to year at the will of the les- tice to quit for half a year before the sor" could terminate the tenancy at end of the year; and the same notice his own will, and Frowike, C. J., ex- upon a lease at will, it seems." 122 PERIODIC TENANCIES. | I4 ciples governing the latter tenancy to closely analagous circum- stances. A tenancy from year to year does not come to an end and recom- mence with each year, but the tenant has an interest for one year certain with a growing interest during every year thereafter springing out of the original demise.*^* In other words, after the beginning of any subsequent year, or indeed after the ex- piration of that part of the current year in which notice to terminate must be given, the subsequent year or years are to be considered a part of the original term, though in the beginning it was uncertain whether the tenancy would so long continue.^*^ The same principle applies to any other periodic tenancy, such as one from month to month or week to week.^s" This principle has consequences of. considerable importance. For instance, if the tenancy were to be regarded as commencing anew at the be- ginning of each subsequent period, the landlord would, under a rule hereafter referred to,*^! be liable for injuries caused by i*^ Cattley v. Arnold, 1 Jolins & H. ated at the end of the first year. 651; Gaudy V. Jubber, 9 Best & S. 15; (See Doe d. Clarke v. Smaridge, 7 Pugley V. Aiken, 11 N. Y. (1 Kern.) Q. B. 957; Fox v. Nathans, 32 Conn. 494. 351; Walley v. Radclift, 11 Wend. ■449 Preston, Conveyancing, 76, 77. [N. Y.] 22). The oversight in this "The true nature of such a ten- respect is noticed in Wright v. Tra- ancy is that it is a lease for two cey, 8 Ir. R. C. L. 478, where the na- (slc) years certain, and that every ture of the tenancy in question is year after it is a springing interest elaborately discussed, arising upon the first contract and" 450 Bowen v. Anderson [1894] 1 Q. parcel of it, so that if the lessee B. 164, overruling Sandford v. occupies for a number of years, these Clarke, 21 Q. B. Div. 398; Ward v. years by computation from the time Hinkleman, 37 Wash. 375, 79 Pac. past, make an entire lease for so 956. The decisions to the contrary many years, and that after the com- in Borman v. Sandgren, 37 111. App. mencement of each new year it be- 160; Griffith v. Lewis, 17 Mo. App. comes an entire lease certain for 605, are based on Gandy v. Jubber, the years past, and also for the year 5 Best & S. 78, and make no refer- so entered on, and that it is not a ence to the opinion on appeal in that reletting at the commencement of case (9 Best & S. 15), in which a the third (sic) and subsequent contrary view is taken. The above years." Gandy v. Jubber, 9 Best & Illinois case is followed in Donk S. 15. This statement is, however, Bros. Coal Co. v. Leavitt, 109 111. erroneous in the use of the word App. 385. See post, § 106. "two," since a tenancy from year to 4.->i See post, § 101. year can unquestionably be termin- § 14 WHEN TENANCY ARISES. 123 defects in the premises existing at the beginning of such new period.^^2 Furthermore, the landlord has in any year a right to distrain for the rent of a pi'evious year, since the tenant still holds under the same demise.*^* And either the landlord or the tenant may declare on the demise as having been made for the number of years which have elapsed since it was made.*^* On, the same principle it was decided that where one who had made a demise from year to year died, leaving the premises to a person for life with remainder over, the leasehold interest, during such life estate, was to be regarded as created by the testator and not by the liie tenant, and consequently did not terminate on his death.455 b. When a periodic tenancy arises — (1) Under express lim- itation. As above remarked, the typical form of periodic ten- ancy is a tenancy from year to year, and the principles which govern in the creation of such a tenancy control also in the creation of the other classes of periodic tenancies. In view of this consideration and for the sake of convenience, we will here discuss the mode of creation of a tenancy from year to year, such discussion being applicable in substance as well to the other classes of periodic tenancies, and we will subsequently state briefly the law as to the creation of quarterly, monthly, and weekly tenancies. A tenancy from year to year, like any other tenancy, may be created by a lease or demise expressly limiting an estate of that duration.*56 A lease may be made for a fixed term, to be followed by a *52Boweii v. Anderson [1894] 1 Q. In Morris v. Healy Lumber Co., B. 164; Gandy v. Jubber, 9 Best & 46 Wash. 686, 91 Pac. 186, a lease for S. 15. a period of one year, and so on *53 Legg V. Strudwick, 2 Salk. 414. from year to year until terminated *54 Birch V. Wright, 1 Term R. 380; by notice from the lessee at the end Cattley v. Arnold, 1 Johns. & H. 651. of the first or any subsequent year.. *55 Gattley v. Arnold, 1 Johns. & appears not to have been regarded H. 651. as creating a tenancy from year to *56 Jones V. Nixon, 1 Hurl. & C. 48; year. What character of tenancy it Fox V. Nathans, 32 Conn. 351; Dix did create is not slated. The lessee. V. Atkins, 130 Mass. 171; Brady v. having an interest to endure so long Flint, 23 Neb. 785; Flnkelstein v. as he desired, he had, it would seem. Herson, 55 N. J. Law, 217, 26 Atl. at least an estate for life, provided 688. the instrument was properly execut- 124 PERIODIC TENANCIES. | 14 periodic tenancy. For instance, there may be a demise for one year certain, and so on from year to year, and this will create a tenancy for two years at the least.*^'^ And a tenancy "for six months and so on for six months to six months, until" determiaed by either party, has been held to be one for twelve months at least.*^* A lease for several years, with a provision that if notice be not given at the end of that time it should be consid- ered a lease from year to year until terminated by notice, was regarded as valid.*^^ But a mere provision that after the term of one year created by the lease had expired the lessee was to "have the preference each succeeding year thereafter'^' did not create a tenancy from year to year.*^'' Occasionally a demise has been construed as creating not a tenancy for a year, continuing from year to year, the ordinary form of tenancy from year to year, but rather a tenancy for two years at least, to be followed by a tenancy from year to year if not terminated by notice at. the end of such two years. This construction has been placed upon a lease of land to hold "not for one year only, but from year to year,"*^i and likewise on one for one year and so on from year to year.*^^ jjj^ regard to a lease in the latter form, however, some of the older English authorities take a different view, regarding it as creating an ordinary tenancy from year to year,*^^ aji,j -ti^ig latter view has ed for the creation of a freehold And see Jones v. Nixon, 1 Hurl. & C. estate. 48; B. Roth Tool Co. v. Champ 457 Doe d. Chadborn v. Green, 9 Spring Co., 93 Mo. App. 530, 67 S. Adol & E. 658; Doe d. Monk v. Gee- W. 967. kie, 5 Q. B. 841. So there may a lease io" Crawford v. Morris, 5 Grat. for one year "with the privilege of (Va.) 90. continuing the same from year to lei Denn d. Jacklin v. Cartright, 4 year." Hetfield v. Lawton, 108 App. East, 29. Div. 113, 95 N. Y. Supp. 451. 462 Boe d. Chadbourn v. Green, 9 That a lease for a term contains a Adol. & E. 658; Reg. v. Inhabitants clause providing that if the lessee of Chawton, 1 Q. B. 247. See Cannon continues in possession thereafter Brewery Co. v. Nash, ,77 Law T. (N. he shall hold as tenant from year S.) 648. to year does not give him the option 463 Some of the old cases fawr the to hold as such during the term, idea that a lease in such form con- MacGregor v. Rawle, 57 Pa. 184. fers a term for three years. Potkln's 458 Reg. V. Inhabitants of Chawton, Case, Y. B. 14 Hen. 8^ 10, pi. 6; 1 Q. B. 247. Bishop of Bath's Case, 6 Coke, 35 b 459 Brown V. Trumper, 26 Beav. 11. (dictum); Anonymous, Winch, 32; I 14 WHEN TENANCY ARISES. 125 been adopted in at least one state in this country .^^^ A lease from year to year "so long as both parties agree" does not create a tenancy necessarily lasting more than a year,*®^ nor is an in- tention to that effect shown by references in the lease to "the last year," or "the last half year," these merely showihg a rec- ognition by the parties of the possibility of the continuance of tf " tenancy beyond a year.*^® There is a decision in this country, rendered without discus- sion and without any characterization of the tenancy, that a demise for one year with a provision that the lessees "is to have thfe said farm from year to year as long as the said farm is to be let" created a tenancy terminable by the lessor at the end of the first year, provided he no longer desired to lease, though he could not then terminate it for the purpose of leasing to another .4^'^ (2) By inference on general letting — (a) From pajrment of periodic rent. A tenancy from year to year, though it may be created by express language, more frequently arises upon a letting with no limitation as to the duration of the tenancy, that is, a mere grant of permission to take possession followed by the payment and acceptance of a yearly rent. What would other- wise be a tenancy at will thus takes effect as a tenancy from Ck)strike v. Mason, 2 Keb. 543; Pan- Eliz. 775; Lutterel v. Weston, Cro. ton V. Isham, 3 Lev. 359. On the Jac. 308; Belasyse v. Bnrbridge, 1 other hand. Chief Justice Holt, in Lutw. 74 (folio 213), 1 Ld. Raym. a number of decisions, expressed the I'^^J StanfiU v. Hickes, 1 Ld. Raym. opinion that such a lease was a 280, 2 Salk. 413; Denn d. Jacklin v. demise for one year only if term- Cartright, 4 East, 31 (dictum). The Inated at that time by either party, cases are reviewed and discussed at that is, that it was an ordinary dc length in 1 Piatt, Leases, 658. And mise from year to year. Stonfil v. see the references in Bac. Abr., Hicks, 2 Salk. 413, Holt, 414; Leigh- Leases (L) 3. ton V. Theed, ILd. Raym. 707; Dodv. ^"Lesley v. Randolph, 4 Rawle Monger, 6 Mod. 215, Holt, 416. And (P^-) 123, where Kennedy, J., re- the same opinion is apparently ex- -^i^^s the authorities, pressed by Lord Kenyon in Good- «^ D«e d. Clarke v. Smaridge, 7 right V. Richardson, 3 Term R. 462. Q- B. 957; Fox v. Nathans, Z2 Conn. The authorities, other tlj^n thosf, 348; Bac. Abr., Leases (L) 3. above cited, upholding the view that *«» Boe d. Plumer v. iMainby, 10 such a lease creates an estate for Q. B. 472. two years certain and then from 467 Walley v. Radcliff, 11 Wend, year to year, are Agard v. King, Cro. (N. Y.) 22. 126 PERIODIO TENANCIES. j I4 year to year if the tenant pays a yearly rent, the theory being that such a payment by him and its acceptance by the owner shows an intention to create a tenancy of the latter character.*®* The payment of rent must, in order to give rise to an inference of an intention to create a tenancy from year to year, be "with reference to a yearly holding," as it is expressed, by which is meant that it must be paid as rent for a year or as a part of rent computed by the year, and if paid not with reference to a yearly holding, or to a holding for some other period, the ten- ancy is at will.*®^ As above stated, the theory of the creation of a periodic ten- ancy by the payment and receipt of rent is that it shows an intention to create such a tenancy. But it is evidence merely of intention, and though stated to be conclusive in that regard 468 Doe d. Martin v. Watts, 7 Term arising. Simmons v. Pope, 84 N. Y. R. 85; Chapman v. Towner, 6 Mees. & Supp. 973. "W. 100; Arden v. Sullivan, 14 Q. B. 4is9 Bray thwaite v. Hitchcock, 10 832; Douglass v. Seiferd, 18 Misc. Mees. & W. 494 ; Richardson v. Lang- 188, 41 N. Y. Supp. 289; Judd v. ridge; 4 Taunt. 128, Rich v. Bolton, Fairs, 53 Mich. 518, 19 N. W. 266; 46 Vt. 84, 14 Am. Rep. 615; Sheldon Tiernan v. Johnson, 7 Mo. 43; Les- v. Davey, 42' Vt. 637; Johnson v. ley V. Randolph, 4 Rawle (Pa.) 123; Johnson, 13 R. I. 467; Lyons v. Phll^ Hey V. McGrath, 81* Pa. 310; Woelp- adelphia & R. R. Co., 2(J9 Pa. SSOrsi per V. City of- Philadelphia, 38 Pa. Atl. 924. So it was held that there" 203; Silsby V. Allen, 43 Vt. 172; Rich was no tenancy from year to year V. Bolton, 46 Vt. 84, 14 Am. Rep. 615; when the tenant merely paid a cer- Arbenz v. Exley, Watkins & Co., 52 tain amount on the square foot ot W. Va. 476, 44 S. E. 149, 61 L. R. A. slate extracted, without reference 957; Beloit Second Nat. Bank v. O. E. to a year or any other period. Shel- Merrill Co., 69 Wis. 501, 34 N. W. don v. Davey, 42 Vt. 637. 514. , In Amsden v. Floyd, 60 Vt. 386, So a tenancy from year to year 15 Atl. 332, it is said that "it is may he created by an occupancy un- clear that in order to convert a ten- der an agreement for a lease, ac- ancy at will into one from year to companied by payment of rent, year an occupation for the second Hamerton v. Stead, 3 Barn. & C. 478, year must at least be entered upon." 483; Cox v. Bent, 5 Bing. 185; Hunt- No authorities are cited for this ington V. Parkhurst, 87 Mich. 38, 49 statement, and though It accords N. W. 597. with occasional suggestions made When, after a surrender by the with reference to a holding under tenant, the landlord collected rent a lease invalid because not in writ- from the subtenant through an- ing (post, § 25 g (1) note 417), it other person, a new tenancy of a finds no support in the authorities periodic character was regarded as generally. The tenancy in this par- I 14 WHEN TENANCY ARISES. 127 in the absence of evidence to the contrary,*^** the- tenancy remains at will if it is shown that the parties did not intend thereby to create a tenancy from year to year or other periodic hold- ing.^^i Evidence of a gross disparity between the rent actually paid and the annual value of the property has been regarded as sufficient to rebut the presumption of a tenancy from year to year.*''2 In order that the existence of a tenancy from year to year or other periodic tenancy be inferred from the payment and re- ceipt of a yearly or other periodic rent, the rent need not be paid in money, but may be paid in services or supplies,*''^ and there need not even be any actual payment -of rent, it being suffi- cient that the tenant is by his consent charged with a certain amount as being a portion of a year's rent.*'^* Attention has previously been called to decisions that a formal demise not naming the duration of the tenancy creates a tenancy at will,*'''^ and, conceding this to be the case, a holding under ticular case would seem to have been conversations with former agents, from month to month, a monthly were admissible in her favor to rent having been paid. show that the tenancy was originally 470 Bishop V. Howard, 2 Barn. & by the month, and so continued. C. 100. It is a question for the jury. Schloss v. Huber, 21 Misc. 28, 46 Pinlay v. Bristol & E. R. Co., 7 N. Y. Supp. 921. And to show that Exch. 409 ; Jones v. Shears, 4 Adol. the tenant did not hold merely from & E. 832; Johnson v. Foreman, 40 111. month to month, evidence was ad- App. 456; Lyons v. Philadelphia & R: mitted in his behalf to the effect R. Co., 209 Par55(T, 58 Atl. 924. that the landlord required him to 471 Doe d. Dixie v. Davies, 7 Exch. niake repairs and to pay taxes, which 89; Doe d. Bastow v. Cox, 11 Q. B. it was not the duty of such a tenant 122; Doe d. Lord v. Crago, 6 C. B. 90; to do. Cohen v. Green, 21 Misc. 334, Prisley v. Presbyterian Hospital, 70 47 N. Y. Supp. 136. See, however. Neb. 353, 97 N. W. 475, 113 Am. St. Post, notes 506, 507, as to the New Rep. 788; Waring v, Louisville & York decisions. N. R. Co., 19 Fed. 863; Johnson v. ^^aRoe d. Brune v. Prideaux, 10 Foreman, 40 111. App. 456; Say- v. East, 158; Denn d. Brune v. Rawlins, Stoddard, 27 Ohio St. 478. 10 East, 261; Smith v. Widlake, 3 In. New York it was held that C. P. Div. 10.' where a tenant remained in pos- "^ Doe d. Tucker v. Morse, 1 Barn, session eleven years, paying rent & Adol. 365; Thomas v. Wright, 9 monthly, receipts for rent given to Serg. & R. (Pa.) 87. her by previous owners of the prem- ^^4 Cox v. Bent, 5 Bing. 185. IseSj which receipts stated that she 475 See ante, § 13 a (4). was tenant for a month only, and 128 PBJRIODIC TENANCIES. S 54 such a demise, if accompanied by the payment of annual (or other periodic) rent, would become a tenancy from year to year (or from other period to period).*'^* But, as before remarked, it is most doubtful whether a tenancy at will is properly created by such a demise for an indefinite time, if it is sufficient in point of execution to convey a life or greater estate,, and the same may be said as regards the inference of a tenancy from year to year from the payment of rent in such a case.^^^ The most frequent case of a tenancy from year to year is that of a holding under a Ifease which fails to comply with the statute of frauds, the tenancy at will, which would otherwise exist in such case, becoming a tenancy from year to year by reason of the payment of an annual rent.'*'^ It may also occur when one enters and pays an annual rent under a lease which is invalid on other grounds.*^^ In Maine and Massachusetts, by the construction of the stat- utes there in force providing that a lease not in writing shall have the effect of a lease at will only, a tenancy from year to year or other periodic tenancy does not arise from the payment and acceptance of a yearly or other periodic rent, but the ten- ancy remains one at will.^^" But even in those jurisdictions 4T6 Ridgeley v. Slillwell, 25 Mo. Grath, 81* Pa. 310, it was clearly de- 570; Lesley v. Randolph, i Rawle elded, -witliout any discussion how- (Pa.) 123; Garrett v. Clark, 5 Or. ever, that a sealed lease not nam- 464; Holmes v. Wood, 88 Mich. 435, ing anfr particular period, reserving 50 N. W. 323. an annual rent, created a tenancy iT! See Kusel v. Watson, 11 Ch. from year to year, and not for life. Div. 129; Boe d. Warner v. Browne, *76 See post, § 25 g (1). 8 Bast, 165. In the latter case, the 479 Lockwood v. Lockwood, 22 lease being sufficient in point of ex- Conn. 425 ; Tiernan v. Johnson, 7 Mo. ecution to convey a freehold estate, 43; Parley v. McKeegan, 48 Neb. 237, and not specifying any estate, but 67 N. W. 161; Kernochan v. Wilkens, stating that the tenancy should not 3 App. Div. 596, 38 N. Y. Supp. 236. be terminated so long as the lessee *8o Ellis v. Paige, 18 Mass. (1 paid rent, it was apparently regard- Pick.) 43; Davis v. Thompson, 13 ed as creating a life estate. See, Me. 209, 214; Wheeler v. Wood, 25 also, Holmes v. Day, 8 Ir. R. C. L. Me. 287; Withers v. Larrabee, 48 Me. 235, where the court divided equal- 570; Thomas v. Sanfora S. S. Co., ly on the question whether a life 71 Me. 548; Sprague v. Quinn, 108 estate or an estate from year to Mass. 553; Lyon v. Cunningham, 136 year was created. In Hey v. Mc- Mass. 532, 540. See post, | 25 g (1). S 14 WHEN TENANCY ARISES. 129 a periodic tenancy may be created by express provision to that effeet.48i (b) Prom resenration of periodic rent. The reservation of a periodic rent may be as effective as the actual payment of such a rent to create a periodic tenancy,**^ though ordinarily the reservation is accompanied by one or more payments. The presumption of a periodic tenancy, in case of the reservation of a periodic rent, may be rebutted by oth«r language in the instrument of demise shov^ing a contrary intention,*^^ and evuab. effect has been given to a provision that the tenancy should con- tinue so long as both parties agree thereto.^** Obviously, the res- ervation of such a rent has no effect if the dnration of the ten- ancy is validly specified, as when there is a written lease for years. Occasionally a state statute provides expressly that the res- ervation of a periodic rent shall create a periodic tenancy.*^' (c) Not from general letting alone. There are statements to be found to the effect that a general Tiolding, that is, a holding for no specified time, creates a tenancy from year to year wrth- 481 Dix V. Atkins, 130 Mass. 171. was in effect a lease at a yearly 482 1 Piatt, Leases, 653; Roe d. rent for this purpose. Bree v. Lees, 2 W. Bl. 1173; Richard- 48s Doe d. King v. Grafton, 18 Q. son V, Langridse, 4 Taunt. 128; Doe B. 496. d. Hull V. Wood, 14 Mees. & W. 682; 4S4SaTv. Stoddard, 27 Ohio St. Doe d. Patton v. Axley, 50 N. 0. (5 478. Jones Law) 440; WiUiams y. Apoth- 4ss i Kan. Gen. St. 1905, § 4053, «caries Hall Co., 80 Conn. 503, 69 provides that when rent is reserved, Atl. 12; Hey v. McGrath, 81* Pa. payahle at intervals ot three 310; Second Nat. Bank v. O. B. Mer- moaths or less, the tenant shall be rill Co., 69 Wis. 501, 34 N. W. 514; deemed to hold from one period to RIdgely v. Stillwell, 25 Mo. 570; another equal to the interval be- Jackson v. Bradt, 2 Caines (N. Y.) tween the days of payment, unless 169; Lesley v. Randolph, 4 Rawle there is an express notice to the (Pa.) 123; Rich v. Bolton, 46 Vt. 84, contrary. 14 Am. Rep. 615. But in Benfey v. Ball Ann. Codes & St. Wash. 1897. Congdon, 40 Mich. 283, it is said § 4569, provides that when prem- that a lease not naming a t«rm, at ises are rented for an indefinite time, a stipulated annual rent, makes a with monthly or otiier periodic rent lease for no more than one year, reserved, the tenancy shall be con- In Davis V. McKinnon, 31 U. C. strued to be from month to month Q. B. 564, it was held that a lea/se or from period to period. But sec- made in consideration of the lessee's tion 4568 purports to abolish ten- agreement to pay the yearly taxes ancy from year to year except when L. and Ten. 9. 130 PERIODIC TENANCIES. §14 out reference to whether there is the reservation of an annual rent or whether there are circumstances to show a tenancy from year to year, in other words, that tenancy from year to year has entirely superseded tenancy at will.*** This may be the law in some few jurisdictions, but ordinarily, as we have seen, ten- ancies at will are still fully recognized.**^ The view above referred to, that a tenancy from year to year arises upon a general letting without more, seems to have first obtained currency in England in the latter half of the eighteentK century, when the general doctrine of tenancies from year to year arising otherwise than by express limitation apparently first originated.*** Blackstone, however, writing in 1765, says merely that "courts of law have of late years learned as much as pos- sible against construing demises, where no certain term is men- tioned, to be tenancies at will; but have rather held them to be tenancies from year to year so long as both parties please, created by express written contract. It does not appear what class of ten- ancy would be created by a lease for an indefinite time, reserving a yearly rent. *86 Parker v. Constable, 3 Wils. 25; Timmins v. Rowlinson, 3 Bur- row, 1609; Jackson v. Bryan, 1 Johns. (N. Y.) 322; Phillips v. Cov- ert, 7 Johns. (N. Y.) 1; Sullivan v. Enders, 33 Ky. (3 Dana) 66; Den d. McEowen v. Drake, 14 N. J. Law (2 J. S. Green) 523; Clark v. Smith, 25 Pa. 137; Larkin v. Avery, 23 Conn. 304 (semble). 48T See ante, § 13. And see Den d. Stedman v. Mcintosh, 27 N. C. (5 Ired. Law) 571; "Williams v. De- riar, 31 Mo. 13; Johnson v. Johnson, 13 R. I. 467; Rich v. Bolton, 46 Vt 84, 16 Am. Rep. 615. In Richardson v. Langridge, 4 Taunt. 128, it is said: Surely the distinction has been a thousand times taken. A mere general let- ting is a letting at will. If the lessor accepts yearly rent, * * * that is evidence of a taking for a year. In Leavitt v. Leavitt, 47 N. H. 329, it was held that an agreement for a holding without the payment of a periodical rent created, in the particular case, a tenancy "at will from year to year," and not a "strict" tenancy at will. The court, how- ever, fully recognized that "strict" tenancies at will still exist. It does not clearly appear why the tenancy in this case was regarded as from year to year. In this state, under a statute providing that every occu- pancy creates a tenancy at will un- less the contrary is shown (ante, § 13 a (6) ), there is a presumption against the existence of a tenancy from year to year in any particular case. Currier v. Perley, 24 N. H. 2193; Hazeltine v. Colburn, 61 N. H. 466, 471. *8s Parker v. Constable, 3 Wils. 25 (1769); Timmins v. Rowlinson, 3 Burrow, 1603 (1765); Claytion v. Blakey, 8 Term R. 3 (1798). See 2 Preston, Abstracts of Title, 25. § 14 WHEN TKNANCY ARISES. 13] especially where an annual rent is reserved."**^ Some thirty years later it was said by a judge of high reputation that "so long ago as the time of the year books it was held that a general occupation was an occupation from year to year, and that the tenant could not be turned out of possession without reasonable notice to quit,"*^<* and a statement similar in effect has been made by other distinguished judges.*'^ As appears from what we have said above, this does not state the law as it exists at the present day, a general occupation in itself without more not giving rise to a tenancy from year, to year, and the year book ease cited in support of the statement seems insufficient to justify the view that such was the law at the time referred to.*^^ If any such doctrine was recognized in the time of the year books, it is most singular that it is not mentioned by Coke, and that there is no reference thereto till towards the end of the eighteenth century, that is, during an interval of over two hundred years. It was fully recognized, as before stated, that a "general letting," if not accompanied by formalities sufficient to create a freehold estate, created a tenancy at will,*®^ and there is during that long period no suggestion that a tenancy 489 2 Blackst. Comm. 147. To the other passage at the page referred to same effect see Co. Litt. 55 a, Har- (13 Hen. 8, 15 b) on which the graves note (anno. 1785). statement of Lord Kenyon can be *9o Lord Kenyon in Doe d. Martin based. The printed year book Shows V. Watts, 7 Term R. 85. The year the statement to have been made book case referred to is stated in the with reference to a lease "for years." note to the report to be 13 Hen. 8, This is probably an error of the re- 15 b. porter Or of the printer, but there 491 Buller, J., in Right v. Darby, is nothing to suggest that the state- 1 Term R. 163, and Wllles,"T\rin ment was made with reference to ;i Jones V. Mills, 10 C. B. (N. S.) 788, "general" letting. 'It is said by referring to the same case. See Lar- Shelly, J., in the same case, that the kin V. Avery, 23 Conn. 304. lease there in question "is not prop- *92 In 2 Smith's Leading Cases erly a lease at will, but is a lease (11th Ed.) p. 127, notes to Clayton for a year at will, for after a year, V. Blakey (8 Term R. 3), it is said to wit, at the end of a year, he can that the passage In the year book oust him if he wishes." Tt may per- case referred to is the following haps have been a lease for a year statement by WiUoughby (Wilby) : and then from year to year. "If the lessor does not give to him *93 Litt. § 70; Blamford v. Blam- notice before the half year, he will ford, 3 Bulst. 98; Com. Dig., Estates justify for another year, and so (H. 1); Bac. Abr., Estates (H 1). from year to year." There is no 132 PERIODIC TENANCIEJS. § 14 at will so created differed from the other tenancies at will in being terminable only by notice. There are perhaps two early decisions in this country to the effect that a tenancy at will may by mere lapse of time be con- verted into a tenancy from year to year,*^^ but these can hardly be regarded as authoritative at the present day, and they are not in harmony with the decisions generally. In Indiana the statute expressly provides that all "general tenancies," where occupancy is by consent, shall be deemed tenancies from year to year, and requires an express provision to create a tenancy at will.*®^ A Ehode Island statute,*®® pro- \ading that "the time agreed upon in a definite letting shall be the time of the termination thereof for all purposes; and if there be no time of termination agreed upon, it shall be deemed a letting from year to year," was held to apply only when there was a lease which was definite except as regards duration, and not to a mere permissive occupation without any agreement as to terms, a tenancy at will arising in such case.*®'' c. Qusoteriy, monthly, and weekly tenancies — (1) Apart from statute. A tenancy analogous to that from year to year, and differing therefrom merely in the length of the recurring periods with reference to which it is measured, and consequently in the character of the notice necessary to terminate it may, «4In Hancliett v. Whitney, 2 MoOuat, 40 Ind. 521; Swan v. ClaJk, Aiken (Vt.) 240, it vas decided that 80 Ind. 57; Rothschild v. Williamison, one who entered into possession as 83 Ind. 387; Coomler v. Hefner, 86 tenant at will and remained in pos- Ind. 108. Under the statute, in the ah- session for five years became tenant sence of any showing of an agree- from year to year, and could not ha ment as to the payment of rent or ousted without notice to quit. And a duration of the term, rent is pre- like view is taken by two judges out sumably payable only at the end of of the five in Jackson v. Bryan, 1 each year. Indianapolis, D. & W. E. Johns. (N. Y.) 322, where there had Co. v. First Nat. Bank, 134 Ind. been a possession for twenty years. 127, 33 N. E. 679. The tenancy is Den d. Mackey y. Mackey, 2 N. J from year to year, although the Law (1 Penning.) 307, is sometimes rent is reserved at a fixed rate per cited to the same effect, but it is not month. Elliott v. Stone City Bank, in point. 4 Ind. App. 155, 30 N. E. 537; Roths- «5 Burns' Ann. St. 1901, § 7089. child v. Williamson, 83 Ind. 387. By "general tenancies" in the stat- ^^^ Gen. Laws 1896, c. 269, § 6. ute is meant those tenancies which *»' Johnson v. Johnson, 13 R. I. are for an indefinite time. Bright v. 467. § 14 QUARTERLY A>rD MONTHLY TENANCIES. 133 as before stated, be created either expressly or as a result of conditions similar to those giving rise to tenancy from year to year. That is, a tenancy from quarter to quarter, from month to month, or from week to week, or indeed from any period to like period, is created prima fade by the reservation or pay- ment of rent with reference to such a period, when no period for tlje duration of the tenancy is named.^^^ The mere fact that rent is paid under a tenancy of undefined duration at intervals of a quarter of a year, of a month, or of a week, does not cause a tenancy measured by corresponding periods to arise, if such payments are merely on account of a yearly rent, that is, it is the character of the rent rather than the time of payment that determines the character of the periodic holding, and such payments of aliquot parts of an annual rent at equal intervals during the year will raise an inference of a tenancy from year to year.*^* But where there is no evidence as to the terms of the letting, it would seem that the monthly payment of rent should show a letting at a monthly rent, thereby 498 Wilkinson v. Hall, 3 Bing. N. rule prevailing in most jurisdictions, C 508; Anderson v. Prindle, 23 nor perhaps with the cases of Finch Wend. (N. Y.) 616; Sebastian v. Hill, v. Moore, 50 Minn. 16, 52 N. W. 384, 51 111. App. 272; HoUis v. Burns, and Johnson v. Albertson, 51 Minn. 100 Pa. 206, 45 Am. Rep. 379; Doug- 333, 53 N. W. 642. lass v. Seiferd, 18 Misc. 188, 41 N. Y. too Ridgeley v. Stillwell, 25 Mo. Supp. 289; Finch v. Moore, 50 Minn. 570; Douglass v. Seiferd, 18 Misc. 116, 52 N. W. 384; Johnson v. Al- 188, 41 N. Y. Supp. 289; Fatten v. hertson, 51 Minn. 333, 53 N. W. 642; Axley. 50 N. C. (5 Jones Law) 440; Steftens v. Earl, 40 N. J. Law, 12S, Lesley v. Randolph, 4 Rawle (Pa.) 29 Am. Rep. 214; Hoover v. Pacific 123; Hey v. McGrath, 81 *Pa. 310; Oil Co., 41 Mo. App. 317; Hungerford McKinney v. Peck, 28 111. 174 (sem- V. Wagoner, 5 App. Div. 590, 36 N. Y. ble) ; King v. Eversfield [1897] 2 Q. Supp. 369; Branton v. O'Briant, 93 B. 475. N. C. 99; Bent v. Benken, 86 N. Y. in Schloss v. Huber, 21 Misc. 28, Supp. 110; Klingenstein v. Goldwas- 46 N. Y. Supp. 921, it was decided ser, 27 Misc. 536, 58 N. Y. Supp. 342. that the fact that receipts for rent. In Minnesota it is said that the paid monthly, stated that the letting payment of one month's rent by a was by the month, is sufiBcient evi- tenant "with nothing further said dence to sustain a finding to the nor done," does not create a ten- effect that such a holding had contin- ancy from month to month, but a ued, in the absence of contrary evi- tenancy for a month. Alworth v. dence, though later receipts omitted Gordon, 81 Minn. 445, 84 N. W. 454. this statement. This is not in accord with the 134 PERIODIC TENANCIES. § 14 creating a tenancy from month to month rather than one from year to year-^"" A tenancy from month to month does not become one from year to year because the tenant remains in possession for one or more years,^''! and the fact that for the convenience of a tenant from month to month the landlord accepts rent quarterly in advance does not in itself change the tenancy into one from quarter to quarter terminable only at the end of a quarter .^"2 There are occasional decisions to the effect that if one enters during a calendar period, a month or a quarter for instance, and pays rent proportioned to the interval between the day of entry and the end of the period, and thereafter pays rent for each period, his tenancy will, for the purpose of ascertaining the time for termination by notice, be regarded as commencing at the commencement of such period-^^^ The law in New York state in reference to tenancies from month to month is in considerable confusion. The view which prevails in other jurisdictions, that a tenancy from month to month is prima facie created by a letting at a monthly rent for no definite period,^"* and that it can be terminated only by a month's notice,^'*'' is supported by a number of cases.*"® There 500 See Anderson v. Prindle, 23 Jones Law) 430; Hollis v. Burns, Wend. (N. Y.) 616; Decker v. Harts- 100 Pa. 206, 45 Am. Rep. 379. home, 65 N. J. Law, 87, 46 Atl. 755; 502 London & San Francisco Bank StefCens v. Earle, 40 N. J. Law, 128, v. Curtis, 27 Wash. 656, 68 Pac. 329. 137, 29 Am. Rep. 214; Finch v. bos Doe d. Holcomb v. Johnson, 6 Moore, 50 Minn. 116, 52 N. W. 384; Esp. 10; Doe d. Savage v. Stapleton, Johnson v. Albertson, 51 Minn. 333, 3 Car. & P. 275; Ver Steeg v. Becker 53 N. W. 642; Edmundson v. Pre- Moore Paint Co., 106 Mo. App. 257, ville, 12 Colo. App. 73, 54 Pac. 394. 80 S. W. 346. But in Ridgeley v. Stillwell, 25 Mo. 504 See ante, at note 498. 570, a contrary view is apparently 505 See post, § 196 e. adopted, and Waters v. Williamson, soe Anderson v. Prindle, 23 Wend. 59 N. J. Law, 337, 36 Atl. 665, seems (N. Y.) 619; People v. Darling, 47 not to be in accord with the above N. Y. 666; Gefger v. Braun, 6 Daly New Jersey decisions in this respect. (N. Y.) 506; Wilson v. Taylor, 8 In Morris v. Niles, 12 Aob. Pr. (N. Daly (N. Y.) 256; Hoffman v. Van Y.) 103, and in Patton v. Axley, 50 Allen, 3 Misc. 99, 22 N. Y. Supp. 369; N. C. (5 Jones Law) 440, it is de- Klingenstein v. Goldwasser, 27 Misc. cided that payment of a quarter's 536, 58 N. Y. Supp. 342; Hungerford rent is evidence of a tenancy from v. Wagoner, 5 App. Div. 590, 39 N. year to year. Y, Supp. 369; Rybicki v. Kalish, 58 501 Jones V. Willis, 53 N. C. (8 Misc. 219, 108 N. Y. Supp. 1001. §14 QUARTERLY AND MONTHLY TENANCIES. 135 are other cases, however, which appear irreconcilable with these.«oT (2) Under statutes. In some states there are statutory pro- visions to the effect that under certain circumstances named a tenancy from month to month shall be regarded as arising,^'* while in at least two states there are provisions changing the common-law rule by which such a tenancy may arise as a result 507 In People v. Goelet, 14 Abb. Pr. (N. S.) 130, 64 Barb. (N. Y.) 476, it was decided that a renting of prem- ises "by the month, and from month to month," created a tenancy that, "to be continued, must be renewed monthly," and did not require a month's notice to. terminate it. The court speaks of this, nevertheless, as a tenancy "from month to month." In most jurisdictions such a letting would be construed as a tenancy from month to month, which would continue till terminated by notice, presumably of a month. In Gibbons v. Dayton, 4 Hun (N. Y.) 453, the court says of a letting for one month only, to expire on the first day of the following month, that "it is very clear that the tenancy was from month to month," and that "neither party was bound to give any notice to terminate the tenancy at the expira- tion of any month." That no notice was necessary to terminate such a tenancy at the end of the first month is evident, and the tenancy created by holding over this first month would possibly be terminable at the end of any month without notice (see post, § 210 b, note 96), but to call such a tenancy for a term of one month a tenancy "from month to month" Is a clear misnomer. As a matter of fact, in this case, there seems to have been a new demise at the beginning of each month by the form of the receipt for rent in ad- vance given and accepted. In Ludington v. Garlock, 29 N. Y. St. Rep. 607, 9 N. Y. Supp. 24, it was thought that, in view of the fact that the monthly rent was paid in ad- vance, sa that the landlord was there- by protected, and that the tenant said that he could not move till he got another house, an agreement might be implied that the tenant might move without giving any prev- ious notice, and that at most a reas- onable notice could be required, and that what was such a notice was a question of fact. This case, so far as it calls for a "reasonable" notice, is approved in Thompson v. Chick, 92 Hun, 510, 72 N. Y. St. Rep. 212, 37 N. Y. Supp. 59. It has also been decided in that stato that where the tenant paid one year's rent in ad- vance, and at a subsequent time paid six month's rent in advance, though the rent was fixed at la certain amount per month, the holding was not a "monthly," but a "yearly," one. Douglass V. Seiferd, 18 Misc. 188, 41 N. Y. Supp. 289. See, also, for New York decisions, ante not© 442,' and post, notes 516, 517. The notice necessary to terminate a tenancy from month to month is now, it seems, fixed by statute, in New York. See post, § 196 c. Bo»Mo. Rev. St. 1899, § 4110, pro- vides that all contracts for leasing stores, shops, houses, tenements, or other buildings In cities and towns, not in writing, shall be taken to be tenancies from month to month. 1S6 PERIODIC TENANCIES. §. 14 af the reservatioQ or payment of a montMy rent.^"^ In Maine and Massachusetts, it would seem, a tenancy from quarter to TWs statute was held to apply to the Real Estate Co. v. Roger Williams lease of a park of nine acres on wMch Silver Co., 25 R. I. 483, 56 Atl. 686, a were buildings used for saloons, res- corporation tenant for a year, holding taurantB, booths and dance halls over at a certain monthly rent, sold ("Withnell v. Petzrold, 104 Mo. 409', 16 its personal property to another, who S. W. 205), and also to a lease of took possession of the premises and vacant ground for the erection of a paid the same rent monthly on de- real estate ofla.ce. Edmonston v. mand of the landlord, and it was Webb, 119 Mo. App. 679, 94 S. W. 314. held that, not being shown to be an It does not apply in the case of a assignee of the former tenant's lease, lease of land in a city for agricultural he held as a tenant from month to purposes, though, it coniains a dwel- month under this statute. The opin- ling house, stable and out houses, ion ignores the fact that the original Kroeger v. Bohrer, 116 Mo. App. lease for a year had expired long be- 208, 91 S. W. 159. Whether the fore any change of possession occur- lessee had taken possession so as red. It appears to have been a simple to be within the operation of the case of one in permissive possession statute was held to be for the jury, paying a monthly rent, thereby oe- where his servants had made altera- coming a tenant from month to tions and had cleaxed the premises, month, and it does not seem that the and his name had been placed on the fact that he originally obtained pos- building, but he bad not moved in. session from a former tenant could Pacific Exp. Co. v. Tyler Oiflce Fix- have affected the character of bis ture Co., 72 Mo. App. 151. One who tenancy. In J. B. Barnaby Co. v. took possession under a deed of trust Johnston, 28 R. I. 105, 65 Atl. 613, it from the lessee, and orally promised is decided that a si atement by the the lessor to pay the rent so long as lessor,, on making that lease, that he remained in possession, was held the lessee could stay until the lessor to be within the statute. Koken wanted the premises, is not a "ref- Iron Works v. Kinealy, 86 Mo. App. erence to time," such as to prevent 199. And likewise where it was verb- the application of the statute, ally agreed between the parties to a In Washington, also, the statute written lease that the lessee should (Ball. Ann. Codes & St. § 4569) pro- retain possession two weeks after the vides that a tenancy for an indefi- termination thereof. Smith v. nite time, with monthly rent reserv- Smith, 62 Mo. App. 596. ed, is a tenancy from month to In Rhode Island it is provided month. See Schreiner v. Stanton, (Gen. Laws 1896, c. 269, § 6) that in 26 Wash. 563, 67 Pac. 219. case of a letting at a certain rate per =oo in Connecticut the statute (Gen. month, without any other reference St. 1902, § 4043) provides that "parol as to time, the letting slhall be leases of lands, or tenements le- deemed from month to month. The serving a monthly rent, and in which rule would be the same apart from the time of their termination is not statute, it seems. In Washington agreed upon, shall be construed to § 14 QUARTERLY AND MONTHLY TENANCIES. 137 quarter, from month, to month, or from week to week, can exist only when" it is expressly so provided.^i*' The question whether a statute of the character before re- ferred to,5^i by which a certain day in the year is named as the day for the termination of any tenancy' the duration of which is not named in the lease, has any application to a tenancy under which a monthly rent is reserved or paid, so as to change tba common-law rule by which such a tenancy is one from month to month, is one on which the decisions are somewhat at variance. In Georgia it has been decided that the statute ^^^ declaring th.at, where no time is specified for the termination of the tenancy, it shall be regarded as extending to the end of the calendar year, applies to the case of a lease at so much per month so as to end it at the end of the year, even without notice such as would ordinarily be necessary to terminate a leasing from month to month. On the other hand, the statute of New Jersey,5i3 pro- viding that, where no term is agreed upon and the rent is payable monthly, it shall be unlawful to displace the tenant so long as he pays the rent before the first day of April, without giving three months' notice to quit, was held not to apply where be leases for one month only." At fact, merely until tlie execution of common law such, a lease would be the lease, which would supersede the from month to month. This statute, agreement. See post, | 65. The it was held, did not apply when one statement that there was an "agreed entered under an oral agreement for time of termination" is hardly recon- the making of a lease for several cilable with the statement that the years, since in such case there was tenancy was one at will, becoming a an "agreed time of termination," and tenancy from year to year. A ten the tenancy was one at will, which ancy having an agreed time of term- "by implication is held to be a ten- ination is a tenancy for years, ancy from year to year." Corbett v. In Indiana, by the construction Cochrane, 67 Conn. 570, 35 Atl. 509. placed on the statute of that state. In view of the reservation of a the tenancy is from year to year, monthly rent, such a tenancy would, though rent is reserved at a monthly in most jurisdictions, have been re- rate. Elliott v. Stone City Bank, garded as a tenancy from month to 4 Ind. App. 155, 30 N. E. 557; Roths- month, and not a tenancy from year child v. Williamson, 83 Ifld. 387. to year. Furthermore, it is most See ante, note 495. questionable whether a holding un- sio gee ante, at notes 480, 481. der a mere executory agreement to bh See ante, 12 e (3), (c). make a lease for a certain period 512 Code 1895, | 3182. should be regarded a a holding for bi3 2 N. J. Gen. St. p. 1924. an ascertained period, it being In 138 PERIODIC TENANCIES. § 14 there was a letting for the "term of one month and month to month thereafter" from a day named.^i* The New York statute,3^5 providing that an agreement for the occupation of real property in the city of New York, which shall not particu- larly specify the duration of the occupation, shall be deemed to continue until the first day of May, has in some cases, appar- ently, been regarded as inapplicable to a tenancy from month to month.518 But in others a different view'has been asserted.^i' In several of the Western states a statutory provision is found,^^^ authorizing the landlord, in the case of a tenancy from month to month, to change the terms of the tenancy by merely serving on the tenant, fifteen days before the end of any month, a notice to that effect, to take effect at the end of the month. Such a provision does not empower the landlord by notice to change the tenancy into one for a year.^i^ 514 Flnkelstein v. Herson, 55 N. J. ute, though a monthly; rent was Law, 217, 26 Atl. 688. agreed on, since there was no dura- sis Real Prop. Law 1896, § 202. tion fixed for the letting. In Cohen 516 It has been held that this stat- v. Green, 21 Misc. 334, 47 N. Y. Supp. ute does not apply where the tenant 136, it is said that the fact that the enters without any agreement as to rent is payable monthly does not terms and pays rent monthly, this conclusively show that the tenancy - "reating a tenancy from month to is from month to month, in view of month. Wilson v. Taylor, 8 Daly the statute, but that it is a question (N. Y.) 253. And the same view was of fact whether it is such a tenancy, taken where the lease was void, un- To apparently the same effect is Bem- der the statute of frauds, as regards stein v. Lightstone, 36 Misc. 193, 73 the duration of the tenancy, but a N. Y. Supp. 151. Douglass v. Sei- monthly rent was reserved which the ferd, 18 Misc. 188, 41 N. Y. Supp. lessee paid. Gilfoyle v. Cahill, IS 289, seems to be to the effect that a Misc. 68, 41 N. Y. Supp. 29, and so "monthly" holding is -within the where the leasing was expressly "by statute and that an indefinite holding the month," Olson v. Schevlovitz, 91 at a yearly rent is not within the App. Div. 405, 86 N. Y. Supp. 834. In statute. This does not, however, Vernon v. Gilbert, 30- Misc. 112, 61 clearly appear. See, also, ante, notes N. Y. Supp. 896, it was held that a 506, 507. memorandum for a "monthly" lease sis Cal. Civ. Code, § 827; Idaho from a -certain date created a "ten- Civ. Code, § 2384 ; Mont. Civ. Code, ancy by the month," and therefore, § 1279; Nev. Comp. Laws 1900, § as being "for a definite term," it was 3827. See Dawson v. Cerf, 4 Cal. not within the statute. App. 272, 87 Pac. 559; Vatuone v. 5" In Spies v. Voss, 30 N. Y. St. Cannobio, 4 Cal. App. 422, 88 Pac. Rep. 548, 9 N. Y. Supp. 532, the hold- 374. ing was regarded as within the stat- sis Hurd v. Whilsett, 4 Colo. 77, § 14 TRANSFER OP INTEREST. 139 d. Transfer of interest. A tenancy from year to year, though resembling in some degree a tenancy at will, in that ^^he continuance of the holding beyond the end of any year is de- pendent on the will of the parties, nevertheless resembles a tenancy for years rather than a tenancy at will, in that it is a tenancy for one year at least. Accordingly, the interest of either the landlord 519a ^j. q£ ^j^g tenant "^o may be assigned without affecting the existence of the tenancy, and on the death of the tenant his interest passes to his personal representative.^^! Not does the death of the landlord terminate the tenancy.^^^ Though a tenant from year to year has or^nally a certain term of one year only, the possibility of its indefinite extension has been h^ld to give him a reversion in case he makes a lease for several years, and one holding under such a sublease is, it seems, to be regarded as a tenant for years, subject only to the possible ending of his term by the termination of his lessor's tenancy from year to year.^^s, 624 ^j^^ go ^ tenant from year to year may make a lease from year to year, he having thereafter an estate from year to year in reversion.^^s e. Mode of termination. While the nature of a periodic tenancy is ordinarily such that it can be terminated only at the end of one of the periods,526 n jg possible, it seems, expressly to provide where the purpose of such a statute Alkln, 11 N. Y. (1 Kern.) 494; Kitch- is considered. en v. Pridgen, 48 N. C. (3 Jones 619a Macdonough v. Starbird, 105 Law) 49, 64 Am. Dec. 593. But in Cal. 15, 38 Pac. 510; Swope v. Hop- Cody v. Quarterman, 12 Ga. 386; kins, 119 Ind. 125, 21 N. E. 462. In Decker v. Hartshorne, 65 N. J. Law, Hemphill v. Giles, 66 N. C. 512, it 87, 46 Atl. 775, it was held, without seems to be held that a tenant from any citation of authority, that the year to year, attorning to and holding death of a tenant from year to year under the assignee of the lessor, is terminated the tenancy at the end merely a tenant at will to the latter, of the current year. 320 Pleasant v. Benson, 14 Bast, 022 Cattley v. Arnold, 1 Johns. & H. 234 ; Braythwayte y.^ Hitchcock, 10 651 ; Maddon d. Baker v. White, 2 Mees. &^T494; Cody v. Quarterman, Term R. 159; Botheroyd v. WooUey, 12 Ga. 386 (semble); Jackson v. 5 Tyrw. 522. Hughes, 1 Blackf. (Ind.) 421; Austin 523, 524 Oxley v. James, 13 Mees. & V. Thomson, 45 N. H. 113. W. .209. 521 Doe d. Shore v. Porter, 3 Term, 526 Curtis v. Wheeler, Moody & M. R. 13; Doe d. Hull v. Wood, 14 Mees. 493; Pike v. Eyre, 9 Barn. & C, 909. & W. 682; Mackay v. Mackreth, 4 5215 Lockwood v. Lockwood, 22 Doug. 213; In re Ring's Estate, 132 Conn. 425; Gunn v. Sinclair, 52 Mo. Iowa, 216, 109 N. W. 710; Pugsley v. 327; Usher v. Moss, 50 Miss. 208; 140 PERIODIC TENANCIES, | 14 for its termiQatiGta at some other time^^^^ and it has even been decided that a tenancy from year to year may be made termin- able at the win of the landlord.ssa in one jiarisdiction the rule has been adopted that a tenancy from year to year is termin- able, not at the end of one of the periods by which it is measured, but only at the end of a calendar year.^^^ In an- other the statute provides that a tenancy from year to- year shall terminate at the end of each year without notiee-S**" The ordinary mode in which such a tenancy comes to an end is by reason of a notice given by one party to the other to the effect that he desires to terminate the tenancy. The essentials of such a notice will be elsewhere considered.^^^ The tenancy is terminated without notice by the expiration of the estate of the person who created the tenancy, so far as the person subsequently entitled is concerned, as where a life tenant after demising from year to year dies.^*^ It may also be term- inated by the making of another demise between the same parties to terminate at a fixed term, that is, a lease for years,^* this effecting a surrender of the periodic tenancy.^^* Ch* it may be terminated by an express surrender.^ss Likewise it may be terminated upon the happening of a particular contingency by reason of a special limitation.®^® The tenancy is not terminated by the death of either party,®^^ nor by his insanity.®^^'' Brown v. Vanhorii, 1 Bin. (Pa.) ZSi; longer until a specified period. This Ijesley v. Randolpli, 4 Rawle (Pa.) seems to make every tenancy from IZS; Barlow v. Wainwrigiit, 22 Vt. year to year a tenancy for years, that 88, 52 Am. Dec. 79. is, for one year, which expires unless 527 Bridges v. Potts, 17 C. B. (N. renewed. S.) 314; Soames v. Nicholson [1902J sst See post, chapter XX. 1 K. B. 157; Doe d. King v. Grafton, 5S2 Doe d. Thomas v. Roberts, 16 18 Q. B. 496; King v. Eversfield Mees & "W. 778. 11897] 2 Q. B. 475. Compare Lewis sssDen d. Williams v. Bennett, 26 v. Baker [1906] 2 K B. 599. N. C. (4 Ired. Law) 122. 528 In re Threlfall, 16 Ci. Div. 274. 534 See post,- § 190 b. 529 Floyd V. Floyd, 4 Rich. Law sirs Uoe d. Watt v. Stagg, 5 Bing. (S. C.) 23; Wilson v. Rodeman, 30 N. C. 564; Harding v. Crethorn, I S. C. 210. Esp. 57; Currier v. Perley, 24 N. H. 530 Ariz. Rev. St. 1901, § 2694, pro- 219. Tides that a tenancy from year to 536 Clark v. Rhoads,. 79 Ind. 342. year shall terminate at the end of 537 gee ante, notes 521, 522. each year, unless written permission 537a McFall v. McFall, 35 S. C. 559, be given for the tenant to remain 14 S. E. 985, where the conclusion of § 15 TENANCY AT SUFFERANCE. 141 It does not clearly appear, so far as the writer has observed, whether, in jurisdictions where a periodic tenancy is still re- garded as one form of tenancy at will, the tenancy would be terminated by operation of law in the same manner as an ord- inary tenancy at will, as, for instance, upon a transfer by the owner of the land or by the tenant, or upon the death of either.^ss § 15. Tenancy at sufferance. a. The common-law conception. The expression "tenant at (or by) sufferance" is quite frequently used, sometimes, it is sub- mitted, under a misconception as to its proper significance. The use of this, as of any common-law expression, in other than its common-law sense, can result only in perplexity and confusion, and it seems desirable to consider at length the conception of a tenant at sufferance as it presented itself to the builders of the common law. The only statement of the nature of a tenancy at sufferance which is in any way adequate, to be found either in the older or the later books, is that of Coke,^^'' and what has been said since his day in reference thereto, so far as it can be said to be based on any authority whatever, is based directly or in- directly on his statement.^*^ This we will accordingly insert at the lower court that "the fact that deteTmines his estate by voliintaTy the lessor had become Twn compos waste. Citing Phillips v. Corert, 7 mentis, without a proceeding to have Johns. (N. Y.) 1, where it was de- the fact declared, would not termi- cided that one in possession at will, nate the tenancy," was approved. paying an annual rent, even though 038 In Currier v. Perley, 24 N. H. a tenant from year to year for the 219, 227, it is said that an estate from purpose of notice, was merely a ten- year to year may be ended by any ant at will for the purpose of act of the lessor or lessee which an action of trespass against would at common law terminate a him on account of voluntary lease at will, strictly, provided the waste. But in Austin v. Thomson, other party choose to take advantage 45 N. H. 113, it was in effect decided of it. The cases cited in support of that a tenant from year to year may the proposition, are, however, cases transfer his interest, which could not involving a "strict" tenancy at will, be done In the ease of a "strict" or in which there was a disclaimer tenancy at will, of the landlord's title, operating by b39 Co. Litt. 57 b. way of forfeiture. In Perry v. Carr, 54o See e. g., 2 Blackst. Comm. 150; 44 N. H. 118, It is said that a ten- 1 Cruise's Dig., tit. 9 c. 2. ant at will holding from year tn year ] 42 TENANCY AT SUFFERANCE, § 15 length and we will then make some comments thereon. The statement of Coke is as follows: — "There is a great diversity be- tween a tenant at will and a tenant at sufferance; for tenant at will is always by right, and tenant at sufferance entreth by a lawful lease, and holdeth over by wrong. A tenant at sufferance is he that at the first came in by lawful demise and after his estate ended continueth in possession and wrongfully holdetlj over. As tenant pur terme d' auter vie continueth in possession after the decease of ce' que vie or tenant for years holdeth over his term; the lessor cannot have an action of trespass before entry. Now that a writ of entry ad terminum qui praeterit lyeth against such a tenant as holdeth over is rather by admission of the demandant than for any estate of freehold that is in him, for in judgment of law he hath but a bare possession. But against the king there is no tenant at sufferance, but he that holdeth over in the cases above said is an intruder upon the king, be- cause there is no laches imputed to the king for not entering. If tenant in tail of a rent grant the same in fee and dieth, yet the issue in tail may bring a formedon, and admit himself out of possession. The like law is it, if a man maketh a lease at will and dieth, now is the will determined ; and if the lessee con- tinueth in possession, he is tenant at sufferance, and yet the heir by admission may have an assise of Mordancestor against him. But there is a diversity between particular estates made by the terre tenant, as above is said, and particular estates created by act in law; as if a guardian after the full age of the heir continueth in possession, he is no tenant at sufferance, but an abator. ' ' The statement by Coke that tenant at sufferance has no estate of freehold, and that consequently a writ of entry lies against him in favor of the person entitled, the "demandant" only "by admission of the demandant, ' '®*i has reference to the rule that a real action could in theory be brought only against one seised of a freehold estate in the land,^*'^ and so, as Coke says, though a tenant at will became a tenant at sufferance upon the landlord's death, the heir of the latter could, for the purpose of bringing an assise of mort d' ancestor^^s against him, admit him to be 5*1 See, also, 3 Blackst. Coram. 175. or mortancestor, see 3 Blackst. 542 Stearns, Real Actions (2d Ed.) Comm. 185; 2 Pollock & Maitland, 86, 175. Hist. Eng. Law, p. 56. 543 As to assise of mort d'ancestor. § 15 COMMON-LAW CONCEPTION. 143 seised of a freehold estate, and he refers to the somewhat anal- ogous ease of a writ of formedon by issue in tail against one who is not seised of the rent. The view incidentally stated by this writer, that a tenant alf sufferance has no freehold estate, is deserving of attention. It might have been contended that one so tortiously holding over became seised in fee simple by wrong, as was,^** and indeed is,^*^ a person who disseises another, and this view of a tenant wrong- fully holding over was taken in early cases 5*6 ])XLt was after- wards repudiated.647 And the view that he has no estate in fee simple by wrong is necessarily involved in the statement else- where made by Coke that a release to him is void,^*^ since if he had a fee simple the release would be good as passing a right.549 The statement of Coke that there is no tenant at sufferance against the king, because there is no laches imputed to the king for not entering, is, it would seem, based on a dictum^^" in a case in which Coke was counsel. So far as it involves an asser- tion that a tenancy at sufferance is the result of laches, it gives an erroneous impression as to the nature of the tenancy. There are many cases to the effect that one holding over his tenancy is a tenant at sufferance,^'^^ but if he were such a tenant only in case of laches on the part of the person rightfully entitled he could not be so called until the lapse of a considerable period after the end of the original holding, yet in no cases, except in a few in this country,^^^ where the courts were reduced to ex- 544 Co. l.ltt. 296 b, Butler's note; 648 Co. Litt. 270 b. Williams, Seisin, 7; 2 Preston, Ab- =49 See Co. Lltt. 265 b, 217 a; stracts of Title, 284; Stearns, Real 2 Blackst. Comm. 325, and CMtty's note. Actions (2d Ed.) 5. 545 See article by Prof. Ames in 3 650 Per Manwood, C. B., in Sir Moil Finch's Case, 2 Leon. 143. Harv. Law Rev., at PP. 23, 27. r^^^^^ .^ ^ ^jj^.j^^^ ^^^^^^ j^ ^^^^^_ 646 Y. B. 18 Edw. 4, f. 25, pi. 16; ^ey General v. Andrew, Hardres, 25. Y. B. 22 Edw. 4, f. 38 b, pi. 23. That there is no tenant at suffer- 547 Allen v. Hill, Cro. Eliz. 238, 3 ance against the King seems to be Leon. 152; Rouse's Ciase, Owen, 27; decided in a nisi prius case. Tai- Tudor's Leading Cases in Real Prop, lor's Case, Clayt. 55. 1; s. c, sub. nom., Rous v. Artois, 2 ssi gee post, at note 585. Leon. 45; Doe d. Burrell v. Perkins, 552 See post, at notes 595, 596. 3 Maule & S. 271. 144 TENANCY AT SUFFERANCE. § 15 tremities to avoid the operation of ill conceived statutes requiring a notice to terminate a tenancy at sufferance, lias it ever been suggested that the tenancy at sufferance did not commence with •the eommencement of the wrongful holding. A tenancy at suf- ferance arises from laches only if by laches we understand a failure to eject a wrongful holder immediately upon the com- mencement of the wrongful holding. The diversity, mentioned by Coke, between one holding over after a particular estate made by the terre tenant, that is a ten- ant at sufferance, and one holding over after a particular estate created ' ' by aet in the law, " is no doubt based upon the familiar rule that one who enters by permission and abuses his right of entry does not thereby become a trespasser cA iuitiOj while if "entry, authority or license is given to any one by the law, and he doth abuse it, he shall be a trespasser ah initio.''^^^ So it is said by an early judge that if a lessee for years holds over he is not a trespasser because his entry was authorized by the lessor.ss* His entry thus not being made wrongful ab initio by his subsequent tortious holding over, it cannot support a claim that it involved a disseisin.^ss Qn the other hand, since one who enters by authority of law becomes by wrongfully holding over a trespasser ab initio, his original entry to the exclusion of all others is, in the eye of the law, a disseisin.sse 553 Six Carpenters' Case, 8 Coke, ward atter the full age of the ward, 146 a, 1 Smiths' Leading Cases (lltJi without title, this is a disseisin to the Ed.) 132. heir, because he came in by the law, 554 Nele, J., in Y. B. 21 Edw. 4, 76 b, and therefore the continuance is be- pi. 9, cited Pollock, Torts (6th Ed.) yond the time whici the law limited 379. him and against the trmst reposed 555 See 1 Rolle, Abr. 659, to the effect in him by the heir, and the law that it involves no disseisin. Also makes this a disseisin to the heir. Com., Dig., Seisin (F 2) ; Doe d. Bur- who was not ever out of possession, rell V. Perkins, 3 Maule & S. 271; but the guardian was seised in his Doe d. Souter v. Hull, 2 Dowl. & R. right." Citing dictum of Culpepper 3S. That he is not a disseisor is in- in Y. B. 7 Hen. 4, 42. That he is a volved in the decisions supra, note disseisor is also stated, on the au- 547, that he is not tenant in fee thority of Rolle, in Com. Dig., Seisin simple by wrong. (F 1). Coke says that the guardian 656 That he is a disseisor, see 1 thus holding over is an abator." Co. Rolle, Abr. 659, 1. 50, where it is Litt. 57 b, 271 b. The incorrectness said: "If guardian in Chivalry cson- of this statement is suggested in the tlnues possession of the land in note to the latter citation in Har- § 15 COMMON-LAW CONCEPTION. 145 It is stated by Coke that the lessor cannot have trespass against the tenant at sufferance before entry, and this statement is adopted in several modern cases.^^^ This, it is submitted, is not for the reason given by Blackstone, that "the tenant, being once in by a lawful title, the law (which presumes no wrong in any man) will suppose him to continue upon a title equally lawful, unless the owner of the land, by some public and avowed act, such as entry is, will declare his continuance to be tor- tious, "^s* The correct reason, as indeed is suggested elsewhere by Blackstone himself,^^* is that the action of trespass is pos- sessory in its nature, being founded upon an injury to the plain- tiff's possession, and proof of an actual or constructive pos- session in the plaintiff is indispensable. For this reason, at com- mon law, while a man actually disseised could maintain an action of trespass on account of the disseisin itself, he could not, until he entered (provided the right of entry still existed), re- cover in such action for the subsequent withholding of posses- sion, since, after the disseisin, the possession was no longer in him. After he had entered, or rather re-entered, however, he was re- garded as having had possession "by relation" from the com- mencement of the wrong, so as to be able to recover mesne prof- its.560 So in the case of tenant at sufferance, there was no possible grave and Butler's edition. "Abate- forcement, could the party keipt out ment," as Coke says (Co. Litt. of possession sue the wrongdoer oy 277 a), "is when a man died seised a. mode of redress which was calcu- of an estate of an inheritance, and lated merely for injuries committed between the death and the entry of against the land while in the pos- the heir an estranger doth inter- session of the owner." A "deforce- pose himself and abate." See to the ment," as stated by the same author same effect 3 Blackst. Comm. 168; (3 Comm. 173), occurs wnen a ten- Challis, Real Prop. 207. ant for years or for life holds over. 557 Trevillian v. Andrew, 5 Mod. That is, a "tenant at sufferance" is a 384; Dorrell v. Johnson, 34 Mass. "deforceor." (17 Pick.) 263; Russell v. Fabyan, gboy. B. 19 Hen. 6, 28; 2 Rolle, 34 N. H. 218; Rising v. Stannard, 17 Abr., f. 550, 1. 7; f. 553, 11. 50, 52; Mass. 282. See Toles v. Meddaugh, com. Dig., Trespass (B 2) (B 3) ; 106 Mich. 398, 64 N. W. 329. Steams, Real Actions (2d Ed.) 362; 558 2 Blackst. Comm. 150. 3 Blackst. Comm. 210; Bigelow, 669 In 3 Blackst. Comm. 210, it is Torts (7'th Ed.) §§ 469, 4T0; Newell, said, referring to the action of tres- Ejectment, 623; Sedgwick & Walt, pass, that "neither, by the common Trial of Title to Land (2d Ed.) § law,' in case of an intrusion or de- 657. See Leland v. Tousey, 6 Hill L. and Ten. 10. '■ i 146 TENANCY AT SUFFERANCE. § 15 right of action in trespass on account of his taking of possession, since this was by permission, and there was no right of action for the subsequent wrongful withholding of possession, because the possession was in him and not in the person rightfully entitled. Consequently, the right to bring trespass for mesne profits accruing during the period of the wrongful retention of possession by the tenant at sufferance can, even after entry by the person entitled to possession, be based only upon the doctrine of relation. There is some ground for question whether that doctrine was applicable, at common law, to any case other than that of a disseisin.ssi The authorities before referred to, however, asserting that the lessee has no right of action in trespass against the tenant holding over until entry, assert by implication that he has such right after entry, and presumably at the present day the doctrine of relation would be applied in the case of a wrong- ful continuance in possession as well as in that of a wrongful taking of possession.^^^ it may further be remarked that under the system of fictions in ejectment which once prevailed, a judgment in ejectment against the tenant at sufferance was con- clusive as to the fact of entry before the time of the demise laid in the declaration,^^^ ^nd it seems that profits even anterior to that time could be recovered on the theory that the actual entry under the judgment in ejectment or the execution of the writ of possession thereunder related back to the original inception of the plaintiff's title as against the wrongdoer.*'^* On such a theory, in spite of the abolition of the fictions of an entry and demise, one who has obtained a judgment in ejectment against one wrongfully holding over and has acquired possession in accordance therewith could, at the present day, recover mesne profits for the full time of the wrongful holding, except in so far as the statute of limitations may be applicable. (N. Y.) 328; Reidv. Stanley, 6 Watts sea Adams, Ejectment, 388. See & S. (Pa.) 369; Cutting v. Cox, 19 Stearns, Real Actions, 364, 367. Vt. 517, and cases cited 28 Am. & ssi See Barnett v. Guildford, 11 Eng. Enc. 'Law (2d Ed.) 577. Exch. 19; Adams, Ejectment, 392; 561 See the discussion by Parke, Sergeant Manning's note to Butcher B, in Barnett v. Guildford, 11 Exch v. Butcher, 1 Man. & R. 221. As to the 19. conclusiveness of a judgment in eject- 562 See the case last cited, and ment in the action lor mesne profits, Leiand v. Tousey, 6 Hill (N. Y.) 328. see the notes to Aslin v. Parkin, 1 § 15 COMMON-LAW CONCEPTION. 147 Not only is the person entitled to possession unable, until after entry, to maintain trespass for mesne profits against the tenant at sufferance, but he is also unable to maintain trespass for acts by such tenant involving injury to the land.^*" He may, however, even before entry, maintain an action on the case on account of such acts,^®^ and after entry his possession relates back, it seems, so as to enable him to maintain trespass on account of such acts as well as for the recovery of mesne profits.^^^ Not infrequently in modern cases the courts assume that a tenant at sufferance is a tenant of or under the person entitled to possession. The common-law authorities give not the slightest countenance to such a view. Coke speaks of tenant at sufferance as tenant "against" not "of" the reversioner,^®* and it is expressly stated that there is no privity between the tenant at sufferance and the reversioner,^®* and that for this reason a re- lease to the latter is not good. So it is the rule, except as changed by statute, that distress cannot be made after the end of the term s^* for the reason, it seems, that upon the ending of the term the relation of privity ceases."*^! A tenant pur auter vie who holds over after the death of the cestiii que vie, though well recognized to be a tenant at sufferance, cannot, with any show of reason, be regarded as tenant of the remainderman under whom he did not enter, with whom he has no contractual rela- tions, and who has never consented to his continued possession. So it is said by Lord Mansfield that the possession of a tenant pur auter vie holding over is adverse to the remainderman or Smith's Leading Cases (8th Am. Bd.) so? See authorities cited ante, notes 1397. 561, 562. 665 Russell V. Fahyan, 34 N. H. 218. sea Co. Litt. 57 b, where it is said And see authorities cited ante, note ^hat "against the king there is no ^^'^* tenant at sufferance." in Dorrell v. Johnson 34 Mass. ^^, ^^ ^^^ ^70 h; Butler v. Duck- (17 Pick.) 263, it was held that the ^ ^^^ ^^^ ^^^ entry upon the premises by the agent , ,„ , of the lessor, by the latter's direc- ""Bro. Abr., Distress, pi. 19, pi. tion, and the cutting of trees by him, 74; Co. Litt. 47 b; Doctor & Student, was a sufficient entry to support Bk. 2, c. 9; Y. B. 14 Hen. 4, 31; note trespass against the tenant at suffer- (2) to Poole v. Longuevill, 2 Wms. ance for injuries to the soil. .Saund. 284 a. 566 West v. Treude, Cro. Car. 187, =" 1 RoUe, Abr. 672, pi. 10; Bradby, W. Jones, 234; Russell v. Fabyan, 34 Distresses, 89. N. H. 218. J 148 TENANCY AT SUFFERANCE. § 15 reversioner, whicli could not be the ease were he to be regarded as holding of the latter,^^^ ^nd in accordance with this dictum is the weight of modern authority to the effect that the statute of limitations runs in favor of such tenant holding over.s'^s This single case of a life tenant holding over is sufficient to demonstrate that the expression "tenant at sufferance" has no reference to any idea that a relation of tenancy exists between such tenant and the person rightfully entitled. And the fact that a tenant for years wrongfully holding over is not, as is a life tenant so holding over, regarded as holding adversely to the person rightfully entitled,^'^^^ does not show that he is such person's tenant, but merely that the circumstance of his entry under a lease excludes the inference that his wrongful possession is under claim of right. At the present day, it is true, a tenant under a lease holding over his term is quite frequently regarded as a tenant of the person entitled, the reversioner, for the pur- pose of supporting an action against him for use and occupation. How one so holding over can, at the election of the reversioner, be liable either in an action of trespass for mesne profits or in an action based on the theory of a rightful possession and a con- tractual liability is somewhat difficult to say, but conceding that a termor so holding over is, under these decisions, to be regarded as a tenant of the reversioner, it is not because the early judges chose to call him a tenant at sufferance, but because the later judges have chosen to regard one who becomes tenant under a lease as continuing in privity to the reversioner, at the election of the latter, so long as he chooses to stay in possession, for the purpose of an action for use and occupation. While, as just stated, a tenant at sufferance is not as such prop- erly the tenant of the person entitled to possession, neither is he the tenant of the lord paramount, since this could be only on the theory that he has an estate in fee simple by wrong, which, as we have seen, he has not.^^* He is consequently tenant of nobody, and the expression "tenant" as applied to him may be regarded as used merely in the sense of one holding posses- 572 Doe d. Fishar v. Prosser, Cowp. & Eng. Enc. Law (2(i Ed.) 809; 2 Tif- 218. -fany, Real Prop. § 443, notes 60, 65. 573 See Doe d. Parker v. Gregory, ,2 573a See ante, § 4, at note 74. Adol. & E. 14, and cases cited 1 Am. 574 gee ante, at note 547. § 15 COMMON-LAW CONCEPTION. 149 sion,5''5 and in confirmation of this view is the fact that none of the common-law authorities speak of any legal results as flowing from the existence of such a "tenancy." In other words, "ten- ant at sufferance" was merely a convenient name employed to designate this person, who was not a trespasser and not a dis- seisor, who was in possession and yet held of nobody. As said by Chief Justice RoUe, one holding over his term "is called" tenant at sufferance."'^^ He might be called a "deforceor," which he is, technically speaking,^''^ but so are certain other per- sons wrongfully in possession. The convenience of an expression specifically applicable to a tenant for a limited period who holds over after the termination of his rightful holding is unquestion- able, though the selection of an expression other than that actu- ally adopted might have avoided considerable misunderstanding. It has been suggested by writers of high reputation that this so-called tenancy had its origin in the desire of the judges to prevent adverse possession from arising upon the termination of a particular estate without the knowledge of the reversioner or remainderman.5^8 Apart from the fact that this statement in- volves the apparent misconception that such a holding cannot be adverse in eharacterj^"^^ it involves also, it is submitted, a chronological impossibility. Previous to the adoption of the stat- ute of 21 James I.,^^^ prescribing in effect a limitation of twenty years after the accrual of the "right or title" for actions of ejectment,58i the only statute in force limiting the period within which actions concerning land could be brought was that of 32 Hen. 8, c. 2 (A. D. 1540), which provided that no person could bring any possessory action upon the seisin or possession of his ancestor unless such seisin or possession existed within fifty years before the bringing of the action, and that no action should be brought on the demandant's seisia unless such seisin existed within thirty years.''^^ Previous to this statute the only 575 See ante, § 2. 579 See ante, at notes 568-573. B76 I Rolle, Abr. 659, pi. 15. sso 21 Jac. 1, c. 16 (A. D. 1623). 577 See ante, note 559. ssi See Lightwood, Possession of 578 Smith, Landl. & Ten. (3d Ed.)' ^^^^_ ^g^. ^^g^j,_ imitations, §§ 34; 2 Smith's Leading Cases (11th ^^^ ^^^ Ed.) 558, notes to Nepean v. Doe d. Knight; Tudor's Leading Cases in • 582 See Angell, Limitations, appen- Real Prop., notes to Rouse's Case; dix, for the terms of this statute. Lightwood, Possession of Land, 161. 150 TENANCY AT SUFFERANCE. § 15 limitations as to the time of bringing real actions were those fixed by the statute of Merton, 20 Hen. 3, c. 8, and that of West- minster 1, 3 Edw. 1, e. 39, and these statutes, as merely requir- ingthe seisin not to be alleged previous to a certain date named in the first part of the thirteenth century, or, in some cases, in the latter part of the twelfth century, were practically inopera- tive for any purposes,''*^ and especially so to preclude a recov- ery of possession against a particular tenant holding over. Under such a statute, it is evident, there was no room for the modern doctrine that the limitation period begins to run only upon the commencement of adverse possession, that is, upon a disseisin, and not before. Consequently, in order to support the view that tenancy at sufferance arose from the desire of the courts ,to avoid the application of the doctrine of adverse pos- session in favor of a tenant holding over, it would be necessary to show that the expression "tenant at sufferance" was not ap- plied to a tenant holding over until the year 1546, at which time the statute of Henry 8, by its terms, first became opera- tive, but as a matter of fact the expression "tenant at suffer- ance ' ' was applied in this sense before the date named.^** More- over, the fact that one is tenant at sufferance does not necessa- rily exclude the application of the doctrine of adverse possession, as appears from the ease of a tenant pur auter vie holding over after the death of the cestui que vie.^^*'^ And while a tenant ■'■83 See 2 Co. Inst. 238 ; 3 Blackst. "We find the expression in several Comm. 188; Angell, Limitations, § cases, in 17 Hen. 7 (A. D. 1502), ap- 13; 3 Harv. Law Rev., at p. 102, plied to a feoffor to his own use re- article by Prof. Maitland. maining in possession. See Keilw. 584 In Y. B. 12 Edw. 4, 12 (A. D. 41 b, pi. 2, 42 b, pi. 7, 46 b, pi. 2. 1473), we find reference to one who Likewise in Keilw. 160 b, pi. 1 (2 "occupies by sufferance at will" Hen. 8), in the same sense, without, however, any statement of In the argument in Rouse's Case, what is meant thereby. In Y. B. Owen, 27, it is said that Littleton 21 Hen. 7, 38 (A. D. 1506), Brooke, (circa A. D. 1470) mentions tenant as counsel, remarks that a tenant at at sufferance in his chapter on Re- will holding over is "tenant at suffer- leases, 108, and in Bro. Abr., Ten- ance." In Lord Zouche's Case (35 ant per Copie, pi. 4, also, it is inti- Hen. 8, A. D. 1543), reported Dyer, mated that Littleton uses the ex- 57 b, pi. 1, one to whom a lease was pression. The present writer is un- made for another's life, holding over able to find it in Litttleton. after the death of cestui que vie, is 5s4a See ante, at note 573. stated to be "tenant by sufferance." § 15 MODERN CONCEPTIONS. 151 who enters under a lease for years and wrongfully holds over is not regarded as holding adversely to his landlord, this does not appear to have been decided until the nineteenth century, genera- tions after the introduction of the expression "tenancy at suffer- ance." b. Modern conceptions. The expression "tenant (or ten- ancy) at sufferance" is frequently applied in modern decisions, as by the earlier authorities, to the case of one entering under a lease for years, who "holds over," that is, wrongfully retains possession, beyond his term.^*^ Likewise, a tenant at will who holds over after the termination of the tenancy becomes, it is generally recognized, a tenant at sufferance,588 but if a tenancy at will is terminated by the act of the tenant in attempting to transfer his interest and putting the transferee in possession, the latter is not a tenant at sufferance but is a mere disseisor or 585 Butler V. Duckmanton, Cro. Jac. hold. Edwards v. Hale, 91 Mass. (9 169; Sutton v. Hiram Lodge, 83 Ga. Allen) 462. 770, 10 S. E. 585, 6 L. R. A. 703; 5s«Bro. Abr., Tenant per Copy, pi. Willis V. Barren, 118 Ga. 906, 45 S. *: Co. Litt. 57 b; McLeran v. Ben- E. 794; Moore v. Moore, 41 N. J. t""*' ^^ ^al. 329, 14 Pac. 879, 2 Am. St. Rep. 814; Creech v. Crockett, 59 Mass. (5 Cush.) 133; Emmes v. Fee- ley, 132 Mass. 346; Lash v. Ames, 171 Lord, 175 Mass. 384, 56 N. E. 570; jjg^g ^g^^ gg j^ ^ ggg. ^ardell v. Russell V. Fabyan, 34 N. H. 218; jjtter, 143 Mass. 19, 8 N. B. 420; Livingston v. Tanner, 14 N. Y. (4 ^arsters v. Cling, 163 Mass. 477, 40 Kern.) 64; Jackson v. Parkhurst, 5 j^ ^ ,j^^. Esty v. Baker, 50 Me. 325, Johns. (N. Y.) 128; Williams v. ,^9 j^^ p^^ g^^g. ^gg^ ^ J^^^ 48 Ladew, 171 Pa. 369, 33 Atl. 329; ^^ ggg. ^^^^^ ^ Thieman, 15 Mo. Wood V. Page, 24 R. I. 594, 54 Atl. ^p^ g^^. jj^g ^ Bennett v. Turner, 372; Gulf, C. & S. F. R. Co. v. Cusen- 7 jjggg g. ^ 226; 9 Mees. & W. 643; berry, 86 Tex. 525, 26 S. W. 43. p^g ^ Q^^^y. ^ carter, 9 Q. B. 863. One having a contract for the jjg becomes tenant at sufferance as sale of land to him, who takes a ^o the whole land upon a conveyance lease from the vendor for a fixed y^y jj^g landlord of part of the land, term, is a tenant at sufferance if he Emmes v. Feeley, 132 Mass. 346. holds over the term. Moore v. Smith, Presumably it is on this theory 56 N. J. Law, 446, 29 Atl. 159. that a cestui que trust remaining in A tenant so holding over the term possession after a sale and convey- named was regarded as tenant at ance by the trustee was regarded as sufferance, although the lease pro- a tenant at sufferance ( Work v. Bray- vided that the lessee would pay the ton, 5 Ind. 396), he being a tenant agreed rent for the term named and at will before the conveyance. See for such further term as he may post, § 42. Law, 515; Poole v. Bngelke, 61 N. J. Law, 124, 38 Atl. 823; Devine v. 152 TENANCY AT SUFFERANCE. § 15 trespasser, since he did not enter by right as is necessary to make one a tenant at sufferance.^*'^ One to whom a life tenant has conveyed the premises or has leased them, and who holds over after the death of the tenant for life, is also a tenant at sufferance,^^^ this being in effect the case mentioned by Coke of a tenant pur auter vie continuing in possession after the death of the cestui que vie. A sublessee of a tenant for years, holding over after the ex- piration of the lessor's term, is properly regarded as a tenant at sufferance.'*' A tenant for life or years whose estate is subject to a special limitation, by which his estate is to terminate upon the happen- ing of a contingency named,^^" no doubt becomes a tenant at sufferance if he continues in possession after the happening of such eontingeney.s^i The fact that a tenant for years has vio- lated a condition subsequent cannot, it seems, render him or one holding under him a tenant at sufferance, since such violation does not in any way change the nature of his holding until the reversioner enforces his right of forfeiture.^®^ 5S7 Co. Litt. 57a; Reckhow v. the life tenant holding over Is "eith- Schank, 43 N. Y. 448 ; Cunningham v. er a tenant at sufferance or a tenant Holton, 55 Me. 33. And see Cooper at will." But he cannot be a tenant V. Adams, 60 Mass. (6 Cush.) 87. at will so long as his holding is with- But in McLeran v. Benton, 73 Cal. out the permission of the person 329, 14 Pac. 879, 2 Am. St. Rep. 81, entitled to possession, and Meier v. Thiemann, 15 Mo. App. sss Wheeler v. "Wood, 25 Me. 287; 307, the transferee of a tenant at will Evans v. Reed, 71 Mass. (5 Gray) was regarded as a tenant at sufEer- 308; Magee v. Gilmour, 18 Can. Sup. ance. Ct. 579; Simpkin v. Ashurst, 4 Tyrw. Bsszouche's Case, 1 Dyer, 57; 781, 1 Cromp. M. & R. 261. But in Rouse's Case, Owen, 27; Allen v. Hill, Pearce v. Ferris, 10 N. Y. (6 Seld.) Cro. Eliz. 238, pi. 5; Doe d. Thomas V. 280, such an undertenant holding Roherts, 16 Mees. & W. 780; Wright over was regarded as a trespasser, v. Graves, 80 Ala. 416; Manning v. sao See ante, § 12 d. Brown, 47 Md. 506; Guthmann v. sai So it has been decided that a Vallery, 51 Neh. 824, 71 N. W. 73.4, lessee for a term becomes a tenant at 66 Am. St. Rep. 475 ; Day v. Cochran, sufferance if he holds over after the 24 Miss. 261; Lyebrook v. Hall, 73 lessor has terminated the tenancy Miss. 509, 19 So. 348; Griffin v. Shef- under a clause giving him the option field, 38 Miss. 359, 77 Am. Dec. 646; so to do. Abeel v. Hubbell, 52 Mich. Kenney v. Sweeney, 14 R. I. 581. In 37, 17 N. W. 231. Peters v. Balke, 170 HI. 304, 48 N. b92 in Allen v. Hill, Cro. Eliz. 238, E. 1012, it is said that the lessee of it was apparently assumed that a § 15 MODERN CONCEPTIONS. 153 While, as above shown, there are many modern cases in which the expression tenant at sufferance has been applied in accord- ance with the common-law authorities to one who holds over after the expiration of his estate, there are some cases in which the courts have asserted views in this regard not supported by the older authorities, and the framers of legislation have occa- sionally used the expression without apparently the slightest knowledge of its true meaning. Thus, the fact that, as Coke says, "there is a great diversity between a tenant at will and a tenant at sufferance," in that one holds rightfully and the other wrongfuIly,s93 has not infrequently been ignored in statutory enactments which, under the mistaken idea, it seems, that "suf- ferance" means "permission" and that, accordingly, a tenant at sufferance is a tenant by permission, have provided that a tenancy at sufferance can be terminated by a notice of a certain life tenant, whose estate was subject leasing was a tenant at sufferance. to a "proviso" that it should end if As to these two cases it may be said she should dwell out of London, be- that one to whom an under lease came tenant at sufferance after she is made is a tenant in accordance did so dwell. There, it seems, the with the terms of the lease, even court must have regarded the "pro- though the making of the lease in- viso" as a special limitation, since volves a breach of covenant on the they considered her estate at an end part of the lessor. Even a condition though she 'continued in possession, providing for re-entry in case of an and there was no re-entry, which was underlease does not affect the status always necessary at common law to of the under tenant until it is en- terminate a freehold estate for forced. Post, §§ 152 j (2), 194 d. breach of a condition. 593 Co. Litt. 57 b. "There can be In Cross v. Upson, 17 Wis. 638, 86 no such thing as tenant by sufferance Am. Dec. 730, it was said that one who when the tenancy is the result of entered as undertenant at will might, agreement." Stayton, J., in Willis v. by reason of a covenant contained in Moore, 59 Tex. 628, 46 Am. Rep. 284. the original lease, against underleas- "One cannot, while he is rightfully ing without consent in writing, and occupying under the authority of the ■ of the condition for forfeiture In case owner, be a tenant at sufferance." of violation, have been regarded as Field, J., in Lyon v. Cunningham, 136 a qiMsi tenant at sufferance. This Mass. 532. case is cited in Washington Real Es- In Clark v. Tukey Land Co., 75 tate Co. V. Roger Williams Silver Co., Neb. 326, 106 N. W. 328, the opinion 25 R. I. 483, 56 Atl. 686, as authority says that "when a tenancy from for a statement that one entering as month to month is terminated for de- licensee or sublessee under a tenant fault in the payment of the rent who was not prohibited from sub- reserved, the tenant may still occui)y 154 TENANCY AT SUFFERANCE. § 15 number of days.^^* To avoid the absurdity involved in such a requirement, that one wrongfully in possession should be entitled to notice to quit, the courts have occasionally seized upon the statement made by Coke, and adopted by Blackstone and other writers, that there is no tenant at sufferance against the king because he cannot be guilty of laches, and have accordingly decided that a tenant holding over is not a tenant at sufferance, so as to be entitled to notice, until the person entitled has been guilty of laches.^^^ And occasionally they have gone so far as to hold that the one so holding over was not a tenant at suffer- ance unless the holding was so long continued as to authorize the implication of an assent to the holdingj^"^ thus in effect regarding one as a tenant at sufferance only when he is a tenant at will or perhaps a periodic tenant. In one sta,te it is provided by statute^^"^ that one obtaining possession without the consent of the owner or person entitled to possession shall be a tenant at sufferance and shall be liable for a reasonable rent. This evidently involves a misuse of the expression. In several cases, without reference to any statute bearing on the subject, the courts have referred to one holding by permis- sion as a tenant at sufferance, thus ignoring the distinction be- tween a tenant at sufferance and one at will.^®® the premises by permission of the 51 N. W. 441. In the latter case it landlord as a tenant by sufferance is said, somewhat singularly, that until the formal statutory notice" the abolition of the distinction he- necessary to support a summary pro- tween tenant at will and tenant at ceeding has been given, and that sufferance involves "the abolition of consequently the statute of limita- a mere technicality of the old law, tions does not begin to run till such for the retention of which no good notice is given. The error of the reason can be given." This remark opinion lies in regarding a tenant would presumably not have been at sufferance as a tenant by per- made had it been understood that the mission whose tenancy must be term- distinction referred to is that be- inated by notice. tween a rightful and a wrongful 68* See post, § 196 d. holding. 595 Moore v. Morrow, 28 Cal. 551 ; =9' Ball. Ann. Codes & St. Wash. Rowan v. Lytle, 11 Wend. (N. Y.) § 4571. 616. 598 lu Kaufman v. Cook, 114 111. »»« Smith V. Little-field, 51 N.Y. 539; 11, 28 N. E. 378, it is decided that if Meno V. Hoeffel, 46 Wis. 282, 1 N. W. one "rents" property for a female SI; Bldred v. Sherman, 81 Wis. 182. relative, that she may live thereon. § 15 MODERN CONCEPTIONS. 155^ If a husband who has, by the common law or by statute, an estate in his wife's land during her life holds over after her death without right, he is not, it seems, a tenant at sufferance, since his estate was created by act of the law.59» And it has been held that if after a divorce the wife remains in possession of her husband's property without permission, she is not such a tenant.^"" A decision which has been made that a wife retaining possession without permission after a conveyance of the premises by her husband to a third person is a tenant at sufferance^"! is, it seems questionable. with a promise to her that if he can year to year went into possession in buy it he will deed it to her, she is, the latter's place, and it was held until he buys, a tenant at sufferance, that, having entered under an "im- But, being in possession by permis- plied license" of the original lessee, sion of the person otherwise entitled, he became a tenant at sufferance, and she is, it is submitted, at least a by subsequently paying monthly rent tenant at will, if a tenant at all. he became a tenant from month to She might be merely a licensee. So month. If he entered rightfully, it in Proctor v. Tows, 115 111. 138, 3 is submitted, he could not be ten- N. E. 569, it is said that one per- ant at sufferance, and if he entered mitted to occupy with no agreement wrongfully, for lack of power in the as to time is a tenant at sufferance, original lessee to transfer the pos- In Cargar v. Fee, 140 Ind. 572, 39 session, he was a disseisor. Compare N. E. 93, it is said that the mere per- note 592, ante. mission to use land, without any pro- 59» See Pattison v. Dryer, 98 Mich, vision for rent, could at most amount 564, 57 N. W. 814; Livingston v. Tan- to tenant at sufferance, if indeed it ner, 14 N. Y. (4 Kern.) 64. See ante, could amount to that." If possession at notes 553-556. is not intended to be given. It would 6»o Brown v. Smith, 83 111. 291. If be a license. But it could not, in she holds by permission she is at any case, be a tenancy at sufferance, least a tenant at will. Wilson v. it being permissive and not wrong- Merrill, 38 Mich. 707. ful. It is not perceived how the ab- eoi Taylor v. O'Brien, 19 R. I. 429, sence of a stipulation for compen- 34 Atl. 739. It is here said that "to sation can affect the character of the constitute a tenancy by sufferance, holding. In Howard v. Carpenter, all that is neces^sary is that the ten- 22 Md. 10, a person going into pos- ant should have entered into pos- session by permission, with the ex- session lawfully and shall continue pectation of obtaining a lease, is re- to hold after the termination of his ferred to as a tenant at sufferance. right." This ignores entirely the In Washington Real Estate Co. v. distinction asserted by Coke and Roger Williams Silver Co., 25 R. I. others between one who entered by 483, 56 Atl. 686, a purchaser of the act of the terre tenant and by act personal property of a tenant from of the law. 156 TENANCY AT SUFFERANCE. | 15 c. Rights and liabilities of tenant. The rights and liabili- ties of a tenant under a lease who holds over after the expiration of his tenancy, and who is, as we have seen above, one of the class of persons called tenant at sufferance, we will consider in an- other place.-«°2 "We will here briefly refer to such rights and lia- bilities of a tenant at sufferance as are independent of the con- sideration whether he entered under a lease or otherwise. These rights and liabilities are, it seems, the same as those of any other person in wrongful possession of land, except as these might in any case be based on the fact that the possessor has an estate in fee by wrong, which, as we have seen, a tenant at sufferance has not.®"* A tenant at sufferance has the same right to the crops which he may have gathered during his possession as has any trespasser,^"* and his possession will, it seems, support an action of trespass against a third person for any interference there- with.*"* He cannot recover for damage to the freehold, since this belongs to another,*"* and he has no interest in the land for which he can recover compensation in case the premises are taken for public use.*"^ He is, it has been decided, liable in damages for any injury to the premises which would not have ■occurred but for his wrongful retention of possession, as when fire catches from his use of a stove on the premises.*"^ 602 See post, chapter XXI. as transferee of the lessor, had a 603 See ante, at note 547. right to the possession. 604 Wolcott V. Hamilton, 61 Vt. «"= Gulf, C. & S. F. R. Co. v. Cusen- 79, 17 Atl. 39. berry, 86 Tex. 525, 26 S. W. 43. 605 Com. Dig., Trespass (B 1) • 2 ^"^ Shaaber v. Reading, 150 Pa. Rolle. Abr. 551, 1. 40. ^^^' ^^ ^"- 692- In Esty V. Baker, 50 Me. 325, 79 Am. Dec. 616, it is said that a ten- 608 Russell V. Fabyan, 34 N. H. 218, citing West v. Treude, Cro. Car. 187, where an action on the case for waste ant at sufferance cannot sue in tres- by a tenant at sufferance was per- pass on account of a peaceable entry, mitted, it being said that either case But there the entry was by one who, or trespass would lie. CHAPTER III. THE CREATION OF THE RELATION— THE LEASE OR DEMISE. 16. The nature of a lease or demise. 17. Tenancy "by implication." 18. Evidence of creation of tlie relation. 19. Attornment. a. Double meaning of term. b. Attornment by tenant to stranger. (1) Is usually invalid. (2) Cases excepted in the statutes, (a) Attornment under compulsion. (4) Validity as against tenant. c. Attornment equivalent to acceptance of lease. d. Acts showing attornment. 20. Lease providing for division of crops — Cropping contract distin- guished. 21. The parties to a lease — ^Personal capacity. a. Married women. (1) As lessors. (a) At common law. (b) ■ In equity. (c) Under statutes. (d) Recovery of rent. (2) As lessees. b. Infants. (1) As lessors. (2) As lessees. c. Persons non compos mentis. (1) As lessors. (2) As lessees. d. Corporations. (1) Power to make or take lease. (2) Effect of ultra vires lease. 22. The parties to a lease — Official capacity. a. Trustees. b. Executors and administrators. (1) In absence of express authority. (2) Express powers. (3) Statutory powers. 158 CREATION OF THE RELATION. c. Guardians. (1) Of infants. (2) Of lunatics. d. Receivers. § 23. Lease to two or more persons. 24. Wtiat may be the subject of a lease. a. Corporeal and incorporeal things. b. Personal chattels. c. Part of building. 25. Necessity of writing — Statute of frauds. a. The English statute. b. The state statutes. ' c. "Leases" within the statutes. d. Short time leases. e. Sufficiency of writing. f. Right to assert the statute. g. Effect of noncompliance with the statute. (1) Resulting tenancy at will or periodic tenancy. (2) Effect of stipulations as to terms of holding. (3) Lease not valid for part of term. (4) Lessee's liability for rent or for use and occupation. (5) Part performance. 26. The form and parts of an instrument of lease. a. General considerations. b. Words of demise. c. Description of premises. (1) Requirement of certainty. (2) Scope and effect. d. Exceptions and reservations. 27. Signing of the instrument. 28. Sealing of the instrument. 29. Attestation of the instrument. 30. Acknowledgment of the instrument. 31. Delivery of the instrument. 32. Acceptance of the instrument. 33. Recording of the instrument. 34. Lease made by agent. a. Agent's power to make lease. b. Form of authorization. c. Ratification. d. Form and execution of lease. 35. Lease made on Sunday. 36. Construction of the instrument. 37. Necessity of entry — Interesse termini. 38. Fraud in creation of the relation. a. Fraud on part of lessee. b. Fraud on part of lessor. 39. Mistake in creation of the relation. 40. Lease for illegal purpose. I 16 LEASE OR DEMISE. 159 § 16^ The nature of a lease or demise. We have had occasion, in describing the various classes of ten- ancies, to refer to the "lease" or "demise" by which a tenancy- is created. We will, in this chapter, undertake to consider the general characteristics and requisites of a lease or demise as the legal act by which a tenancy is created, with no reference, for the most part, to any particular class or classes of tenancy created thereby. The word "lease" is unfortunately used in different senses. Its primary signification is well given by Blackstonei as "prop- erly a conveyance of any lands or tenements (usually in consider- ation of rent or other annual recompense) made for life, for years, or at will, but always for a less time than the lessor hath in the premises." Other standard textbooks give substantially similar definitions, ^ and that a lease is a conveyance has been frequently stated judicially.* The word "lease" is also used in a more extended sense tu describe not only the legal act (the conveyance) by which a lesser estate is vested in another, but, in addition, the legal act 1 2 Blackst. Comm. 317. grants only a portion of his estate, 2 So In 1 Piatt, Leases, 1, a lease i eserving to himself a reversion, the IS defined as "a grant or assurance of conveyance is a lease." Comyn, ■a present or future interest for life, Landl. & Ten. 51. for years, or at will, in lands or s Jones v. Marks, 47 Cal. 242 ; Carl- Trther property of a demisable nature, ton v. Williams, 77 Cal. 89, 19 Pac. a reversion being left in the party 185, 11 Am. St. Rep. 243; McKee v. from whom the grant or assurance Howe, 17 Colo. 538, 31 Pac. 115; New proceeds." In Sheppard's Touch- York, C. & St. L. R. Co. v. Randall, stone, 266, it is said that "a lease 102 Ind. 453, 26 N. E. 122; Craig v. doth properly signify a demise or Summers, 47 Minn. 189, 49 N. W. letting of lands, rent, common or 742, 15 L. R. A. 236; Crouse v. Mitch- any hereditament unto another for ell, 130 Mich. 347, 90 N. W. 32, 97 a lesser time than he that doth let Am. St. Rep. ?79; In re Tuohy's Es- it hath in it." And see, to the same tate, 23 Mont. 305, 58 Pac. 722 ; Aver- «ffect, 2 Preston, Abstracts of Title, ill v. Taylor, 8 N. Y. (4 Seld.) 44; 124. Spielmann v. Kliest, 36 N. J. Eq. 203 ; "A lease is a conveyance by way Shimer v. Phillipsburg, 58 N. J. Law, of demise of lands or tenants for 508, 33 Atl. 852; Clark v. Hyatt, 55 life or lives, for years, or at will, N. Y. Super. Ct. (23 Jones & S.) 98; "but always for a less term than the Wien v. Simpson, 2 Phila. (Pa.) 158; party conveying himself has in the Gray v. LaFayette County, 65 Wis. premises". Woodfall, Landl. & Ten. 567, 27 N. W. 311; State v. Morrison, <16th Ed.) 132. "When the alienor 18 Wash'. 664, 52 Pac. 228. 160 CREATION OF THE RELATION. § 16 or acts by which various contractual obligations are created in connection with such conveyance, that is, it is applied to an aggregate of simultaneous legal acts, by one of which a lesser estate is transferred to another, and by another or others of which the transferor or transferee, or both, contract to do or leave undone certain things. In other words, it describes a lease in the sense first above referred to plus what are usually described as the "covenants of the lease."* A third sense in which the word "lease" is frequently used is to describe the written instrument in which such a conveyance, and the covenants connected therewith, may be incorporated. "When we speak of the ' ' execution " of a lease, for instance, we evidently use the word "lease" in a sense different from that in which we use it when we say that a "lease" for less than three years need not be in writing. Not infrequently, in the course of this work, we will use the expression "instrument of lease" to avoid confusion in this respect. The word "lease" is also, as we have before remarked,^ used, by a sort of metonymy, to describe the estate created by the lease. In view of the fact that the entrance into contractual obliga- tions by means of "covenants" ordinarily constitutes a most important part of a transaction involving the creation of the re- lation of landlord and tenant, it is not surprising that quite frequently the courts have lost sight of the fact that the really essential part of the transaction is a conveyance, and instead regard it as involving the creation of contractual obligations only, frequently speaking of the "contract of lease. "^ The ex- * In Anson, Contracts (7th Ed., at 5 gee ante, § 12 a at note 17. p. 8), it is said: "It is no doubt « Compare Austin, Jurisprudence possible tliat contractual obligations (3d Ed.) 387. "Rights in rem some- may arise incidentally to an agree- times arise from an instrument ment which has for its object the which is called a contract, and are transfer of property. In the case of therefore said to arise from a con- a conveyance of land with covenants tract. The instrument in these cases annexed, or the sale of a chattel wears a double aspect, or has a two- wlth a warranty, the obligation fold effect. To one purpose it gives hangs loosely to the conveyance or jus in personam and is a contract, sale, and is so easily distinguishable to another purpose it gives jus in rem that one may deal with it as a con- and is a conveyance. When a so- tract. called contract passes an estate, or. LEASE OR DEMISE. 161 pression "contract of lease," if it is to be used at all, should be applied merely to the aggregate of the covenants into which the parties may have entered in connection with the making of the conveyance by way of lease. But such a conveyance may be made without any accompanying covenants, in which case the expression ' ' contract of lease ' ' would appear to be inapplicable.'"' The word "contract," it is true, has occasionally been used in a sense broad enough to include a conveyance, on the theory that a conveyance is the result of agreement,^ a theory which, it may be remarked, is not in harmony with the common-law con- ception of a conveyance by deed.^ Giving the word "contract" this broader signification, a conveyance by way of lease is a contract, but the same may be said of a conveyance in fee simple. The modern scientific writers on the law of contract do not use the term in this extended sense, but restrict it to the voluntary creation of rights in personam as distinguished from rights in in the language of the modern civ- In some of the Southern states the ilians, a right in rem, to the obligor, expression "rental contract" is much it is to that extent not a contract but in vogue. It is unfortunate that a conveyance, alhough it may be a such expressions should be used, with contract to some other extent and the necessary result of obscuring considered from some other aspect, fundamental legal principles. We do A contract is not distinguished from not refer, of course, to states which a conveyance by the mere consent of have avowedly accepted the civil law parties." view of the subject. Statements in the old books, as' in s See Holland, Jurisprudence (Sth Bro. Abr., Contracts, pi. 43; Co. Litt. Ed.) 242. In Professor Salmond's 47 b, that a lease is a contract, have able work on Jurisprudence (2d Ed.) reference to the fact that an action 307, note, it is said: "Contract is of debt might be maintained for the sometimes used in the wide sense of rent reserved. Sse post, .§ 157 a, any bilateral act in the law (cit- note 294. Compare the statement in ing Holland, Jurisprudence, supra). Co. Litt. 45 b, that "whatsoever word This, however, is very unusual, and amounteth to a grant may serve to it is certainly better to use agree- make a lease," showing clearly that ment in this sense. Contract, being author's conception of a lease as a derived from contrahere, involves the conveyance. idea of binding two persons together ^ Occasionally the expression by the vinculum juris of an obliga- "breach of lease" or "breach of lease tion. An assignment is not a con- contract" is made use of by the courts, tract, and a release is the very re- meaning thereby the breach of some verse of a contract." particular contractual stipulation o That at common law a convey- contained in the instrument of lease, ance by deed is perfectly valid with- L. and Ten. 11. 162 CREATION OF THE RELATION. § 16 rem.^° And to speak of a legal act as a contract when it in- volves the transfer of an interest is at best misleading, even if not erroneous. Taking the most ordinary ease of a lease, one for a term of years, it would generally be conceded that its effect is to create in the lessee an estate for years, a class of estate as well recog- nized at the present day, though not formerly,' i as an estate in fee simple or for life. So a lease for life undoubtedly creates an estate for life in the lessee, a fact which was fully recognized at common law in the requirement of livery of seisin to validate such a lease.i2 And a lease from year to year, or other periodic lease, creating as it does a term for at least one year or other period named, must also be regarded as creating an estate in the lessee. Even a tenant at will has been recognized as having an estate in the land.i^ In all these cases the tenant of the par- ticular estate named may assert his rights of possession and enjoyment as against any person whomsoever, that is, he has that proprietary interest in land which goes by the name of estate. And to create such a proprietary interest a conveyance, as dis- tinguished from a contract, is necessary. The not infrequent failure to recognize that a lease is some- thing more than a mere contract is, it is conceived, to a consid- out any consent, or even knowledge chattel interest." That the term is thereof, on the part of the grantee, a chattel interest is no doubt to he see Harriman, Contracts, §§ 82, 83; conceded, but that it is not an estate 2 TifEany, Real Prop. § 407. is certainly not the law generally, 10 See Anson, Contracts (7th Ed.) though it was the law in England, as 3; Pollock, Contracts (6th Ed.) Ap- has been before stated, five hundred pendix A; Kammon, Contracts, §§6, years ago. So the statement in the 7, note (17); Clark, Contracts, 11. recent case of In 're Hubbell Trust, So Pothier, Obligations, 3, says: 135 Iowa, 637, 113 N. W. 512, that "That kind of agreement, the object "the lease of land by which a tenant of which is to form some engagement, acquires the right of possession for is that which is called a contract." a specified period vests in him no 11 See ante, § 12 a. interest in the land itself," cannot In Trustees of Wadsworthville be approved. Poor School V. Jennings, 40 S. C. 12 Barwick's Case, 5 Coke, 93; 168, 18 S. E. 257, 891, 42 Am. St. 2 Preston Estates, 162. Rep. 854^ there is a dictum that "a is Co. Litt. 55a; 2 Blackst. Comm. lessee has no estate in the lands 145; 1 Preston, Estates, 28; Wil- demised to him. His term, under liams. Real Prop. (18th Ed.) 434. the law, is but a chose in action or See ante, § 13 c. § 16 LEASE OR DEMISE. 163 erable extent due to the fact that a writer of recognized standing, two centuries ago/* defined a lease as a contract * * * for the possession and profits of lands on the one side, and a re- compense by rent, or other consideration, on the other." This definition, or one substantially identical therewith, in regarding a lease purely as a contract, has been accepted in a number of caseSjis frequently upon the express authority of the writer re- ferred to. The fundamental objection to such a definition of a lease is that it entirely ignores the common-law theory of a particular and a reversionary estate in the lessee and lessor respectively, and substitutes therefor the civil law conception of a contract of hiring (locatio conductio), which passes no title or property in the thing hired, but merely binds the owner (locator) to secure the enjoyment of the thing to the hirer.^"^ One writer, usually regarded' as of considerable accuracy, seeming to find difficulty in choosing between the definitions of a lease, states that a lease is "a contract for the possession of lands and tenements on the one side; and a recompense of rent 1* The author of Bac. Abr. tit. civil law locatio conductio did not Leases, 433. This is usually attrib- create any rights in rem in the hirer uted to Chief Baron Gilbert. is clearly shown in Hunter's Roman "United States v. Gratiot, 14 Pet. Lnw (3d Ed.) at p. 506. (U. S.) 526, 10 Law Ed. 573; Thomas The civil law conception of a lease V. West Jersey R. Co., 101 U. S. 71, prevails in Louisiana and to some 25Law. Ed. 950; Heywoodv. Fulmer, extent in Georgia. In the latter 158 Ind. 658, 32 N. E. 574, 18 L. R. A. state a statute (Code 1895, § 3115) 491; Sawyer v. Hanson, 24 Me. 542; provides that '"no estate passes out Pelton V. Minah Con. Min. Co., 11 of the landlord, and the tenant has Mont. 281, 28 Pac. 310; Paul v. Crag- only a usufruct * * * ; and all naz, 25 Nev. 293, 59 Pac. 857, 60 PaC. renting or leasing of such real estate 983, 47 L. R. A. 540; Edwards v. for a period of time less than five Noel, 88 Mo. App. 434; Jackson v. years shall be held to convey only Harsen, 7 Cow. (N. Y.) 323, 17 Am. the right to possess and enjoy such Dec. 517; Dolittle v. Eddy, 7 Barb, real estate, * * * and to give (N. Y.) 74; Becker v. Becker, 13 App. only the usufruct, unless the contrary Div. 342, 43 N. Y. Supp. 17. be agreed upon." In Bentley v. At- 10 See, as to the civil law con- lanta, 92 Ga. 623, 18 S. E. 1013, how- tract as distinguished from a modern ever, it is said that "a tenant, though lease, and its resemblance to the he has no estate in the land, is the early English conception of a lease, owner of its use for the term of his Hare, Contracts, 90, 92. See, also.^rent contract, and he can recover Pothier, Contract de Louage, § 3; damages for any injury to such use" Sandars' Justinian, 451. That the occasioned by a public nuisance. 164 CREATION OF THE RELATION. §16 or other income on the other. Or it is a conveyance of lands and tenements to a person for life, for years, or at will, in considera- tion of a return of rent, or other recompense. "^'^ And occasion- ally such an alternative definition has been asserted by the courts.^ 8 As we have undertaken to show, a lease is always a con- veyance, and such a definition is, it is conceived, not only ambig- uous, but likewise erroneous. One of the definitions which we have undertaken to criticise appears to assume that a consideration is necessary to the va- lidity of a lease, and we occasionally find judicial suggestions to the same effect. ^^^ ^^ So far as by the term "lease" we refer to a conveyance by way of lease, that is, a conveyance leaving a reversion in the grantor, it is perfectly valid without any con- sideration moving to the lessor. Even though any of the coir- tractual stipulations were invalid for lack of a consideration, this would not affect the lease so far as it is a conveyance creating a tenancy. A conveyance in fee simple is valid without any con- sideration, ^i and so must be a conveyance for a less period. In other words, one having an estate in land may make to another a gift of either his whole interest or of a part of his interest. Ordinarily the lessor does receive what would be a sufficient consideration to support a contract in the shape of the lessee's contract to pay rent, but that a lease is valid without any pro- vision for rent is well recognized.^^ " 4 Cruise's Dig. tit. 32, c. 5, §1. Real Prop. (6th Ed.) § 2272; Notes of 18 Milliken v. Faulk, 111 Ala. 658, Coleridge and Christian, at p. 296 of 20 So. 594; Lacey v. Neweomb, 95 Blackstone's Comm. criticizing the Iowa, 287, 63 :^. W. 704; Branch v. statement by that author to the con- Doane, 17 Conn. 402; Badger Lumber trary. See, also, cases to the above .Co. V. Malone, 8 Kan. App. 121, 54 effect cited 2 Tiffany, Real Prop. S Pac. 692; Jackson v. Harsen, 7 Cow. 384, note 145. (N. Y.) 323, 17 Am. Dec. 517. That a common-law conveyance 19, 20 Gilpin V. Adams, 14 Colo. 512 ; was valid/ without consideration is White V. Walker, 31 111. 422 ; Mc- necessarily involved in the well rec- Farlane v. Williams, 107 111. £3; ^-ognized rule that, on a feoffment Mitchell V. Com., 37 Pa. 187; Visalia without consideration, a use result- Gas. & Elec. L. Co. V. Sims, 104 Gal. ed in favor of the feoffor. See Sug- 326, 37 Pac. 1042, 43 Am. St. Rep. den's Gilbert on Uses, c. 1, §§ 5, 60; 105. 1 Sanders, Uses and Trusts, 60; Per- 21 See Preston, Abstracts of Title, kins, § 533. 71; 1 Sanders, Uses & Trusts, 67; 22 See post, § 165. 4 Kent's Comm. 462; 3 Washburn, § 17 TENANCY "BY IMPLICATION." 165 The word "demise" is not infrequently, especially in England, applied to the legal act by which the relation of landlord and tenant is created, that is, the conveyance of an estate less than that of the grantor. The use of this word, not having any reference to the covenants entered into by the parties thereto, is free from the ambiguity which unfortunately attends the use of the word "lease. "^s § 17. Tenancy "by implication." Not infrequently reference is made to a tenancy "by implica- tion, " or it is said that the relation of landlord and tenant may be "implied." The courts and textbook writers, in using this language, are not entirely explicit, but they appear usually to mean that the relation may be created without the use of the language ordinarily regarded as most appropriate for the pur- pose. It is, for instance, said by an able writer that "an estate at will may, and frequently does, arise by implication, "^'t by which is meant, no doubt, that such an estate may be created by an entry under an informal oral permission, as before explained.^^ There is, however, no distinction in principle between such a case, and the case of a lease in express terms, using the words "lease" and "demise." Ordinarily a tenancy at will is created in this way, the- owner of the premises merely giving permission to another to take possession, and the latter taking possession accordingly. But the words "you may take possession of this property" are quite as effective as the words "I, A. B. hereby lease to you C. D., the premises, (describing them) to have and to hold at will. ' ' In either case there is a lease, either oral or in writing, as the case may be. The only distinction between the forms of expression is that in the former case there is no state- 23 Coke (2 Inst. 483) uses demise to denote a partial transfer by way in the sense of a conveyance in fee °^ lease. , . . ., .„ ,,. Tjnfo,. In Snedecor v. Pope, 143 Ala. 275, simple, fee tail or for life. Refer- ■ , . , , „ , . ^ 39 So. 318, it is decided that the ring to this passage counsel in Green- j .,j • „ , ^ •, ^ ^ word "demise" does not necessarily away V. Adams, 12 Ves. Jr. 397, said: . , -ij. ■ j. ^ mi. j. anaj v . .tiuo-iuo, i^ v ^. import a writtcu instrument. That " 'The strict technical import of the ^j^jg jg ^^ ^^^^^ unquestionable. word demise,' from the verb 'dimitto' 24 Smith, Landl. & Ten. (3d Ed.) is any transfer or conveyance, 2I. though by habit it is generally used 23 See ante, § 13 a (3). 166 CREATION OF THE RELATION. | 17 raent as to the nature of the tenancy, and this has to be supplied by the law, which determines that the taking of possession under such bare permission creates a tenancy at will. The relation of tenancy may even be created by a landowner's mere assent to the words used by another, as when he is asked if he is willing to lease on certain terms and he indicates his assent to the propo- sition, and possession is taken aeeordingly,^^ and he might in- dicate his assent for this purpose by acts instead of words. In such a case, however, there is a lease, and the use of the expres- sion "implication" in this connection can but obscure the real nature of the transaction. So in the frequent case of what is is known as an "attornment," that is, an acknowledgment by one in possession of land, by word or act, that he is tenant of another, there is in effect a lease to him by such other, though there may be, on the part of the latter, no word or act except the mere tacit acceptance of the acknowledgment.^'^ And when it is said, in connection with actions for use and occupation, that the relation of landlord and tenant must exist by "implied or express contract, "^^ it cannot be intended thereby to say that the law creates the relation under certain circumstances without reference to the intention of the parties, but the meaning pre- sumably is that a mere permissive possession, however the per- mission may be indicated, is ordinarily sufficient to justify re- covery in such an action. If one takes possession "under a con- tract for a lease" or "under a contract of sale," as it is usually expressed,29 his entry is actually by reason of a permission, stated in the contract, or otherwise indicated, and it seems improper to say that there is in such ease a tenancy ' ' by implication. ' ' And if one enters under a lease invalid for want of writing or of record, he becomes tenant because his entry is by permission, and he in reality enters under a lease, though not under the lease intended to be made.^" 20 See e. g., Schwarze v. Mahoney, • 27 gee post, § 19 c. 97 Cal. 131, 31 Pac. 908, where one 2s See e. g., Dudding v. Hill, 15 III. who asked the owner what rent she 61; Greenup v. Vernor, 16 111. 26; desired, and, on being told, expressed Chamberlain v. Donahue, 44 Vt. 57. a readiness to "take" the property, 29 See post, §§ 43 a, 65. and took possession, was held to be so See ante, § 13 a (3); post, § a tenant. 25 g. § 17 TENANCY "BY IMPLICATION." 167 In no case, it is conceived, does the law "imply" a tenancy when there is in fact no lease, that is, no permission by the owner to another to take or retain possession, manifested either by words or acts,*i though it occasionally says that one who is in by permission shall, under certain circumstances, be regarded as one class of tenant rather than another.^^ One who enters another's land without permission is a trespasser and not a tenant^s and the law will not "imply" that he is rightfully in possession for the purpose of imposing liability upon him as a tenant,^* even though he enters into negotiations for a lease.^^ Occasionally the expression "implication" or "implied" ie used with regard to the evidence necessary or sufficient to justify a finding of the existence of the relation of tenancy. Thus it has been said that, if the facts are such, in the estimation of the jury, as to exclude every other reasonable hypothesis, the law will imply that the relation of landlord and tenant exists.^* This seems to be merely the equivalent of a statement that the jury should find the existence of a tenancy if. this is the only reason- able hypothesis on the, evidence, and so when it is said that a 31 See Bailey's Adm'r v. Campbell, part of the land by the removal of 82 Ala. 342, 2 So. 646; Emerson v. the house thereon. It would rather Weeks, 58- Cal. 439; Littleton v. seem that by such removal of the Wynn, 31 Ga. 583; Hill v. Coal Val- house with him in it the lessee In ley Min. Co., 103 111. App. 41; Cum- effect licensed him to go on the land mings v. Smith", 114 111. App. 35; for the purpose of occupying the Knowles v. Hull, 99 MaSiS. 562; house, and that by remaining in the Emmons v. Scudder, 115 Mass. 367; house he acted under the license. It Twiss V. Boehmer, 39 Or. 359, 65 was as if he had been transported by Pac. 18; Moore v. Harvey, 50 Vt. 297; the lessee thereou in his vehicle. Wilcher v. Robertson, 78 Va. 602. There was no Intention on the part In Pardee v. Gray, 66 Cal. 524, 6 of the lessee to give possession of any Pac. 389, it was held that one who, part of the premises or to create a having refused to leave A's house, tenancy, and there was not, so far was moved by A, vath the house, on as appears, any intention on the part land leased to A, was "put in pos- of the person in the house to take session" of a portion of such land, possession as tenant, and was consequently liable to ex- 32 See ante, §§ 13 a (3), 14 b (2). pulsion by summary proceedings ^3 See ante, § 6. commenced by A's lessor, as being 34 See post, § 302. an undertenant. It might, it seems »s See post, § 19d, at notes 105-107, be questioned whether the person in § 302, at note 32. the house was "put in possession" of se Rainey v. Capps, 22 Ala. 288. 168 CREATION OF THE RELATION. § Ig tenancy may be "implied" from the payment of rent,^^ it is usually meant that its existence may be inferred from such pay- ment. § 18. Evidence of creation of the relation. The question whether the relation of landlord and tenant has been created is one of fact for the jury subject to the instructions of the eourt,38 arid even though the construction of a written instrument as being a lease vel non is involved, a question which is plainly for the eourt,^^ and the court decides it to be a lease, the question whether the relation of tenancy actually exists is, it seems, still for the jury as being dependent on whether pos- session has been taken and held under the lease.*'* The only class of evidence bearing upon the existence, or which is the same thing, the creation, of the relation, particularly re- s' Strahan v. Smith, 4 Bing. 01; of the borough which owned the Cunningham v. Holton, 55 Me. 33; land, an oflScer of the association hav- Weinhauer v. Eastern Brew. Co., 85 ing been present when the resolution N. Y. Supp. 354. See post, § 18. was passed. Where all the facts on 38Swanner v. Swanner, 50 Ala. 66; which the allegation of a tenancy is McDowell V. Hyman, 117 Cal. 67, 48 based are admitted, the court may Pac. 984; Cunningham v. Cambridge determine whether a tenancy exists. Sav. Bank, 138 Mass. 480; Duncan Howard v. Carpenter, 22 Md. 10. V. Beard, 2 Nott & McC. (S. C.) 400; 39 See Ferris v. Hoglan, 121 Ala. Doe d. Heam V. Gray, 2 Houst. (Del.) 240, 25 So. 834; State v. Paige, 1 135; Jackson v. Vosburgh, 7 Johns Speer Law (S. C.) 408, 40 Am. Dec. (N. Y.) 186; McKenzie v. Sykes, 47 608; McCutchen v. Crenshaw, 40 S. Mich. 294, 11 N. W. 164; Chamberlin C. 511, 19 S. E. 140; Stadden v. Haz- V. Donahue, 44 Vt. 57. So the ques- zard, 34 Mich. 76; Nightingale v. tion whether a tenancy was for a Barens, 47 Wis. 389, 2 N. W. 767. year or from month to month was In Lamson v. Moffat, 61 Wis. 153, 21 decided to be for the jury. Pusheck N. W. 62, it was decided that though V. Frances E. Willard N. T. H. Ass'n, an instrument was on its face a lease, 94 111. App. 192. the jury could find on the evidence In Borough of Phoenixville v. Wal- that it was intended merely as a ters, 147 Pa. 501, 23 Atl. 776, it was mortgage on the crops, in accord- regarded as a question for the jury ance with the general rule that an whether the possession of land by absolute conveyance may be shown an association was that of a tenant to be a mortgage, from year to year, as having con- ■"> Caldwell v. Center, 30 Cal. 539, tinned to pay rent after the expira- 89 Am. Dec. 131. As to the necessity^ tion of its original lease, or was of entry under the lease to create the under a renewal thereof, in accord- relation of tenancy, see post, § 37. ance with a resolution of the council § 18 EVIDENCE. 169 ferred to by the cases, is that of the payment of rent, it being said that such payment by one in possession is evidence of the relation,*! and the same has been said of a promise to pay rent.*^ It may happen, however, that the payment of rent does not shovi^ that the payor is a tenant of the payee,*"" as when he is paying it on account of another,** and even when the payment is by a person in possession, he may be a subtenant paying the rent on account of the original tenant,** or a person on the premises mak- ing the payment may be doing so as the agent or servant of the tenant.*^ Or he may even be doing so without the existence of any legal relation or privity between him and one claiming under the lease.*^ Likewise, the fact that the defendant in a summary proceeding pays the rental value of the premises in order to secure an appeal does not show him to be a tenant right- fully in possession.*^ And it has been held that the fact that one in possession made a single payment, as for rent, to an adverse claimant of the land, in order to obtain a temporary immunity from suit, did not preclude her from denying the existence of a 41 Doe d. Hearn v. Gray, 2 Houst. of the owner. Sanborn v. First Nat. (Del.) 135; Doe d. Barrett v. Jefler- Bank, 9 Colo. App. 245, 47 Pac. 660. son, 5 Houst. (Del.) 477; Voigt v. ^^ See post, § 177 e. Resor, 80 111. 331; Morris v. « in Joslin v. Ervien, 50 N. J. Law, Niles, 12 Abb. Pr. (N. Y.) 103; Cres- 39, 12 Atl. 136, it was held that evl- sler V. Williams, 80 Ind. 366; Vir- dence that a person on the premises glnia Min. & Imp. Co. v. Hoover, 82 paid the first instalment of rent by Va. 449, 4 S. E. 689. his own check, that he demanded 42 Kelly v. Byster, 102 Ala. 325, rents of sublessees, and gave receipts 14 So. 657. in Iiis own name, was sufBcient to 42a See Sanford v. Herron, 161 Mo. support a finding that he was himself 176, 61 S. W. 839, 84 Am. St. Rep. tenant and not merely the agent of 703. another. 43 "The rent must be paid in the '' ^°^ ^- Hull v. V/ood, 14 Mees. & capacity of tenant." Strahan v. W- 682. There the widow of the Smith, 4 Bing. 91. In that case the ^^^^^^ "^^^^ ^he rent to the lessor, pledgee of pictures took a lease of a room in which to place them, and the pledgor paid the rent in order to and this was held not to show that she was tenant under the lessee's administrator, or under the lessor, but that knowing that she had no get them back. ^^^^ ^j^^ merely retained possession, A promise to pay an annual sum avoiding expulsion by the admlnis- to the owner of land in order to in- trator by such payment of the rent. duce him to make a lease to another 47 Hopkins v. Holland, 84 Md. 84, •does not make the promisor a tenant 35 Atl. 11. 170 CREATION OP THE RELATION. § Ig tenancy.** Furthermore, one in possession paying rent may be paying it, not as tenant of the payee, but as holding under a con- veyance in fee reserving rent,*^ or under an assignment to him, as distinguished from a sublease, reserving rent.^" Ordinarily, however, if one pays to another certain sums as and for rent of particular land, of which the payor is in possession, this is prima facie evidence of the existence of the relation of landlord and tenant, as showing an attornment by the person in possession, as will be explained in the next section. The existence of the relation of landlord and tenant may be shown, as against one of the parties, by an admission by him, or by acts equivalent to an admission. So it has been decided that, by bringing an action for use and occupation, one admits the ex- istence of a tenancy .^1 But the service of a notice to quit has been held not to involve such an admission, when it was served simultaneously with a declaration and notice in ejectment.'^ A landlord is not precluded, it has been decided, from showing that a certain person is his tenant, as regards particular prem- ises, by the fact that he has procured the issue of a liquor license to another person.^^ That an agent uses his own property to some extent for the 48 Hudson V. White, 17 R. I. 519, 23 ants, and the payment of rent by Atl. 57. such persons throughout that time A payment made to secure immun- to the person under whom the entry ity from suit, not as for rent, evt- was made and to his descendants, dently does not show the existence accompanied by the making of im- of the relation of tenancy. See Myer provements, has been lield to raise V. Roberts, 50 Or. 81, 89 Pac. 1051. a presumption of a "lease in fee," ^9 See ante, § 11 a. or of an agreement for such a lease. The payment of rent to a certain Ham -v. Schuyler, 4 Johns. Ch. (N. man and his heirs or devisee for y.) 1. over twenty years by one having a so See post, § 151. fee simple estate in land has been 51 Powers v. Ingraham, 3 Barb. ^N held to show prima facie that tho y.) 576; Cunningham v. Holton, 55 person to whom rent is so paid has Mg 33^ 57 ]y[g_ 42O. title to the rent. Steward v. Bridg- 52 Powers v. Ingraham, 3 Barb. er, 2 Vern. 516; McElroy v. Railroad, (n. Y.) 576. 7 Pa. 536. And the continuous occu- 53 s. Liebmann's Sons Brew. Co. v. pation of land for eighty years, by De Nicolo, 46 Misc. 268, 91 N. T one whose original entry thereon Supp. 791. was permissive and by his descend- § 18 EVIDENCE. 171 transaction of Ms principal's business does not show that' the latter is his tenant as regards such property.^* It is said that ' ' a tenancy once created is presumed to con- tinue so long as the tenant remains in possession. ' '^b This, how- ever, is not, properly speaking, a matter of presumption or of evi- dence, but is, it seems, merely another mode of stating that one who enters as tenant is precluded, so long as he continues in pos- session, from asserting title in himself or in another.^* There is not, it is conceived, any presumption of the continuance of the tenancy as against the landlord. It has been said that the relation will not be inferred from occu- pation, if the relative position of the parties to each other can, under the circumstances of the case, be referred to any other dis- tinct cause.'^ This appears to mean merely that if one is shown to be in possession in another capacity, there is no room for an inference that he is in possession as tenant, and so, if one is in possession as trustee, he is not in possession as tenant ;^^ and if he is in possession as agent, acts on his part within his authority will not be regarded as the acts of a tenant.^^ The fact that a written instrument contains the word "lease"*** or "term"*i does not conclusively show it to be a lease, but its construction in this respect is to be determined by a considera- tion of the whole instrument. In numerous decisions the courts 5* Pittsburgh, C. & St. L. R. Co. v, plus being paid to the other party, Thornburgh, 98 Ind. 201. the owner, and no time was fixed for 55 Wheelock v. Warschauer, 21 Cal. the termination of any possessory 309; Milsap v. Stone, 2 Colo. 137; interest, no rent was named to be Longfellow v. Longfellow, 54 Me. paid, and there was no provision fot 240; Hill v. Goolsby, 41 Ga. 289. sharing in the crop. There was held 56 See post § 78. to be a mer& contract of employment. 57 Hardin v. Pulley, 79 Ala. 381. ei State v. Page, 1 Speer Law (S. 58 Russell V. Brwin's Adm'r, 38 C.) 408, 40 Am. Dec. e08. Here there Ala. 44 ; Hardin v. Pulley, 79 Ala. 381. was an agreement with one to take 50 Paige V. Akins, 112 Cal, 401, 44 charge of a hotel as manager for a Pac. 666. term of years, compensation to him 60 Ferris v. Hoglan, 121 Ala. 240, to be fixed by profits, and his book.s 25 So. 834. In this case the word to be open to inspection by the own- "lease" was used, but the agreement ers. This was held not to be a lease, was that one party was to cultivate The court of appeals in equity, how- the land and gather and market the ever, seems to have viewed the agree- crop, and was to receive his com- ment differently in this respect. See pensation from the proceeds, the sur- Page v. Street, Speer Eq. (S. C.) 159. 172 CREATION OF THE RELATION. §19 have considered the question whether, in the particular case, the instrument in question involved a lease or merely a contract for the cultivation of land ' ' on shares, ' ' and the use of the word "lease" has never been regarded as conelusive.^^ If an instrument in terms undertakes to create the relation of tenancy, it cannot be shown by oral evidence that the transaction was actually a sale.®^ § 19. Attornment. ' a. Double meaning of term. The expression "attornment" is used in two senses. At common law it was necessary, upon a transfer of a seignory, or of a reversion upon an estate for life or years, that the tenant should "attorn" to the transferee, before the latter could be regarded as the landlord and entitled to assert rights as such against the tenant.^* The act of attorning, the "attornment," consisted merely of the tenant's recognition of such transferee as his landlord.^^ This- requirement of at- tornment was dispensed with by St. 4 Anne, c. 16, § 9. And this statute, or the policy embodied therein, has been generally adopted in this country .^^ We have, therefore, at the present day, but little occasion to employ the word "attornment" as signifying the tenant's acknowledgment of the transferee of the reversion as his landlord. The word "attornment" is also frequently used, in another sense, to describe the acknowledgment, by one previously in pos- session of land, that he is tenant to another, when there has been no transfer of any reversion to the latter, and the ex- 02 See post, § 20. most common attornment is to say, 03 Smith V. Caldwell, 78 Ark. 333, Sir, I attorn to you by force of the S5 S. W. 467. said grant, or I become your tenant, e* Litt. §§ 551-591, and Coke's Com- etc., or to deliver to the grantee a mentary thereon; Sheppard's Touch- penny or a half-penny or a farthing stone, c. 13. by way of attornment." Litt. § 551. 85 "Attornment is no other in ef- Lord Coke adds : "Any other words feet, but when the tenant bath heard which import an agreement or assent of the grant made by his lord, that to the grant do amount to an attorn- the same tenant do agree by word ment." And payment of any part of to the said grant, as to say to the the rent or service to the grantee was grantee, I agree to the grant made a suflScient attornment. Sheppard's to you, etc., or I am well content Touchstone, p. 261. with the grant made to you; but the oe See post, § 146 f. § 19 ATTORNMENT. ^ > ' ■{ji pression is thus used whether the person making the acknowledg- ment, or, which is the same thing, agreeing to hold under an- other, is himself the rightful owner of the land, or is a trespasser or disseisor, or is in possession as tenant of some person other than the one whom he thus accepts as landlord. Attornments of this character are the subject of our present discussion. b. Attornment by tenant to stranger — (1) Is usually in- valid. The expression ' ' attornment ' ' is perhaps most frequently- used in reference to one already in possession as tenant of an- other, and it is generally recognized that one so in possession as another's tenant cannot voluntarily attorn, to the detriment of his landlord, to an adverse claimant of the land. Such an attornment was the subject of the statute 11 Geo. 2, c. 19, § 11, which, after reciting that "whereas the possession of estates in lands, tenements, and hereditaments is rendered very precarious by the frequent and frfiiidulent practice of tenants, in attorning to strangers, who claim title to the estates of their respective landlord or landlords, lessor or lessors, who by that means are turned out of possession of their respective estates, and put to the difficulty and expense of recovering the possession thereof by actions or suits at law," prescribed that every such attornment of any tenant or tenants should be absolutely null and void, and '"t the possession of their respective landlords or lessors should not be deemed to be in any wise altered or affected thereby "pro- vided always that nothing herein contained shall extend to vacate or affect any attornment made pursuant to and in con- sequence of some judgment at law, or decree or order of a court of equity, or made with the privity and consent of the landlord or landlords, lessor or lessors, or to any mortgagee after the mort- gage is become forfeited. ' ' This provision has been substantially re-enacted in a number of the states of this country,*^ occasionally with changes of phraseology as to the exceptional cases in which an attornment to a stranger will be upheld. - -.^ > BT California Civ. Code, § 1948; Jersey Gen. St. p. 1921, § 26; New Delaware Rev. Code 1893, p. 867; York Real Prop. Law, § 194; OJclOr Burns' Ann. St. Indiana 1901, § 7097; homa St. 1903, see 3333; South Iowa Code 1897, § 2990; Kansas Gen. Carolina Civ. Code, § 2413; Virginia St. 1905, § 4064; KentucTcy St. 1903, Code 1904, § 2784; Weist Virginia § 2298; Mississippi Code 1906, § 2837; Code 1906, § 3397; Wisconsin St. Missouri Rev. St. 1899, § 4112; Mon- 1898, § 2182. tana Rev. Codes 1907, § 5233; 2 Nevi 174 CREATION OF THE RELATION. § 19 The exact meaning and purpose of the provision above quoted is not entirely clear, and the same obscurity v^ould seem to attend its American counterparts. Prom the recitals in the English act one might be led to infer that, by the law as it previously existed, a tenant could always, by attorning to a stranger, in effect disseise his landlord, but, as a matter of fact, the common-law rule is clearly stated by writers of authority to have been other- wise, the attornment to a stranger being effective as against the landlord in one case only, which could have occurred but sel- dom.^s The doctrine, embodied in the English statute referred to, and in its American counterparts, that a tenant cannot make an attornment to an adverse claimant, to the prejudice of his own landlord, has been applied in a number of connections, usually without specific reference to any statute on the subject. For instance, the stranger to whom such an attornment is made acquires thereby no rights to the land as against the landlord,*^ nor as against third persons,'''" nor does the attornment give such stranger adverse possession as against the landlord, capable of ripening into title by lapse of the statutory period of limita- tion.'^i So an attornment to a stranger does not affect the run- es If a lord was disseised of the Dana) 426, 32 Am. Dec. 78 ; Breeding's demesne lands of the manor, an at- Heirs v. Taylor's Heirs, 52 Ky. (13 tornment to the disseisor by the ten- B. Mon.) 477; State v. Howell, 107 N. ants of the other lands of the manor C. 835, 12 S. E. 569 ; Clampitt v. Kel- put the disseisor Into possession of ley, 62 Mo. 571. So where the ten- the rents and other services due by ant accepted a lease from a stranger, the tenants. But in other cases the see Parker v. Nanson, 12 Neb. 419, attornment of a tenant to a stranger 11 N. W. 865. A grantee is not was simply nugatory. Litt. §§ 587, ousted, so as to have a right of ac- 589; Co. Litt. 323. So it is said in tion on a covenant in his deed, by Gilbert on Tenures, p. 104: "Though the attornment of his tenant to a my tenant should attorn to some- third person who had no title, body else, that would not put me out Bailey v. Moore, 21 111. 165. of possession of my reversion, be- to Perkins v. Potts, 52 Neb. 110, 71 cause, the right being in me, it N. W. 1017. could not be transferred to any body 7i Doe d. Hooper v. Clayton, 8 Ala. else, but by some act of my own; 391, 2 So. 24; Dausch v. Crane, 109 and the payment of my tenant is but Mo. 323, 19 S. W. 61; Camden Orphan a wrongful payment, and doth not Soc. v. Lockhart, 2 McMuI. Law (S. give him my right." C.) 84; Fowler v. Simpson, 79 Tex. 69 United States v. Sliney, 21 Fed. 611, 15 S. W. 682, 23 Am. St. Rep. 894; Chambers v. Pleak, 36 Ky. (6 370. § 19 ATTORNMENT. I75 ning of the statute of limitations in favor of the landlord as against a third person claiming the property'^^ and it does not, it has been decided, give possession to the person to vi^hom it is made for the purpose of avoiding the statute invalidating a con- veyance by one out of possession.^s Such an attornment 'does not affect the possession of the tenant as being that of his original landlord, so as to preclude an action by the latter to quiet title, under the statute authorizing such action by one in possession "by himself or tenant,"^* though it has been held to give to the person to whom it is made possession sufficient for the pur- pose of such an action.^s ^q attornment to a third person by one in possession under a lease from one having no title has, however, been regarded as giving to the latter the benefit of the attornor's labor for the purpose of procuring a title from the state J* (2) Cases excepted in the statutes. The statute 11 Geo. 2, c. 19, § 11, above referred to, as well as its American counterparts, names certain circumstances under which an attornment by the tenant to a stranger shall be valid. These exceptions to the general rule, as named in the statutes, have been the occasion of but little judicial disciission, and it is difficult to form clear opinions as to their exact scope and effect. The case of an attornment made in pursuance of a judgment or decree is excepted in all the statutes, and the result is, that if the owner of a paramount title obtains a judgment or decree establishing his right as regards the ],and, the tenant may there- upon consent to hold under him and so retain possession. In a number of jurisdictions, even apart from any statutory pro- vision, a tenant may attorn to one who has recovered a judg- ment for possession against him.''''' ''* T2 Elliott v. Dycke, 78 Ala. 150; ble v. Lake Superior & Puget Sound Rankin v. Tenbrook, 5 Watts (Pa.) Co., 99 Minn. 11, 108 N. W. 867. 386. Testate v. Hicks, 53 Ark. 238, 13 "Turner v. Thomas, 76 Ky. (13 S. W. 704. Bush) 518. ", 7sSee post, § 78 p (2), at note 74 Smith V. Cooper, 38 Kan. 446, 16 545. Pac. 958; Blanchard v. Tyler, 12 In Doe d. Kennedy's Heirs v. Rey- Mich. 339, 86 Am. Dec. 57. nolds, 27 Ala. 364, it was decided 76 State V. Griftner, 61 Ohio St. 201, that he cannot attorn to the judg- 55 N. E. 612; SheafE v. Husted, 60 ment plaintiff after the judgment Kan. 770, 57 Pac. 976. But see Trim- has become void, as by the expiration 176 CREATION OF THE RELATION. § 19 Another exception, named in various statutes, to the rule that a tenant cannot attorn to a third person, is when such attornment is with the consent of the landlord. Ordinarily, it is evident, a landlord will not give such consent, and we find but one case in which this exception was applied,''^ it being there held that if a landlord consented that his tenant attorn to one whom the landlord expected to purchase his reversion, he could not thereafter recover in ejectment against the tenant, or against the person to whom the tenant attorned. Another exception, named in the English statute and in some of those enacted in this country ,8" is the attornment "to any mort- gagee after the mortgage is become forfeited." This can refer, in jurisdictions where a mortgage passes the legal title, only to a mortgage prior to the lease, since a mortgage subsequent thereto constitutes merely a transfer of the reversion, and an attornment to the subsequent mortgagee is not to a stranger.^i As regards an attornment_to a prior mortgagee, the rule in such jurisdictions, generally now recognized, is broa der than the ex- ception in the statute, and the tenant of the jior t g a gqr is re garded as -fin-titied Jtp_ attorn_jt.Q. the moxtgagee before as well as after a forfeiture under the mortgage TIEOP,, %._demand by the mortgagee for rentj)r_for_jgossession.82 Jq jurisdictions, on the other hand, in which the legal title does not pass under a mort- gage, an attornment to a mortgagee could, apart from the stat- ute, be valid only when he has purchased at the sale under the mortgage and so procured the legal title.^^" The application, in such jurisdictions, of this exception in the statute, might have the effect, apparently, of enabling the mortgagee, by collusion with the mortgagor's tenant, to obtain the rent which would otherwise be paid to the mortgagor, although he has, as against the latter, no legal title to the land nor any right of possession. In ]\Iissouri the English statute has been amended by adding to the excepted cases in which the tenant's attornment to a third person is lawful that of his attornment to one who pur- of the fictitious demise laid in the 2 New Jersey Gen. St. p. 1920, § 26; declaration. New York Real Prop. Law, § 194. 79 Jackson v. Brush, 20 Johns. (N. si See post, § 146 e. Y.) 5. X2~See post, § 73 a (3). '^Missouri Rev. St. 1899, § 4112; S2a See post, at note 85. § 19 ATTORNMENT. 177 chases pursuant to a sale "under a deed of trust, "®^ and this has been regarded as justifying an attornment by a tenant to one who purchases a paramount title under such a deed, and as enabling him to set up such attornment as against his own land- lord.84 Even apart from statute, by some decisions, a tenant would have the right to attorn to a purchaser of a paramount title, upon the assertion of such title, irrespective of whether he purchased at voluntary or forced sale.^^ In two jurisdictions the statute forbidding an attornment by a tenant to a stranger excepts the ease likewise of an attornment to a purchaser at judicial sale.^* And in regard thereto the same may be said, that, even apart from statute, if the purchaser at such sale asserts his rights as against the tenant, the latter, by some decisions, might attorn to him instead of relinquishing possession, or driving him to an action of ejectment.®'' The statutes forbidding attornment to strangers do not, from their very terms, apply to an attornment to a transferee of the reversion,*^ though such an attornment is, as before stated, ordinarily, at the present day, unnecessary, and to that extent nugatory. (3) Attornment under compulsion. While it has been as- serted or decided in a considerable number of cases that an at- tornment to a stranger by a tenant under a lease is absolutely invalid as against the landlord, even though such stranger has title paramount to that of the landlord,®" there are a number of S3 Rev. St. 1899, I 4112. to the lease is said not to be an at- 8i Freeman v. Moffit, 119 Mo. 280, 25 tornment to a "stranger" -within the S. W. 87. And see Holden Bldg. & statute, the court saying that it is Loan Ass'n v. Wann, 43 Mo. App. 640. in principle the same as an attorn- 85 See post, §§ 73 a (3), 78 p. (2), ment to a transferee of the land- 186 a (2). lord. That it is not the same ap- se Iowa Code 1897, § 2990; Wis., St. pears to be beyond question. See 1898, § 2182 (Attornment permissible post, § 78 n (3). if made to a purchaser at judicial so Doe d. Kennedy v. Reynolds, 27 sale acquiring title by a conveyance Ala. 364; Rogers v. Boynton, 57 Ala. after expiration of redemption per- 501; Simmons v. Robertson, 27 Ark. jo^) 50; Thompson v. Pioche, 44 Cal. 508; 87 See references ante, note 85. Broxton v. Bnnis, 96 Ga. 792, 22 S. 88 Tn Teich v. Arms, 5 Cal. App. B. 945 (semble) ; Mason v. Bascom, •175, 90 Pac. 962, an attornment to a 42 Ky. (3 B. Mon.) 26,9; Parker v. purchaser at a sale for taxes prior Nanson, 12 Neb. 419, 11 N. W. 865; L. and Ten. 12. 178 CREATION OF THE RELATION. § 19 decisions to the effect that such an attornment to the person having paramount title, if made under compulsion, in order to avoid eviction by the latter, is in legal effect an eviction, and consequently may be asserted by the tenant so attorning. These decisions will be hereafter referred to.®° (4) Validity as against tenant. By some decisions, if one already in possession as tenant of one person accepts a lease from, or agrees to hold as tenant of, another person, he becomes liable to the latter as well as to his former landlord for rent or in use and oceupation,^! and on the same theory, in an action against him by either to recover possession, he is precluded from deny- ing the plaintiff's title.^^ go in England it has been explicitly decided that one in possession of land can in succession attorn to two different persons, so as to give to each of them a right of distress.^3 By other decisions, however, one already in pos- session as tenant of another, who attorns to a third person, has been regarded as not bound by the attornment, so as to be pre- cluded from asserting that he is not a tenant of the latter, the theory being that an attornment to a third person is void, not only for the purpose of affecting the former landlord injuriously, but also for the purpose of imposing liability on the part of the tenant towards such third person.** Mosher v. Cole, 50 Neb. 636, 70 N. W. ance of a second lease ceases upou 276; Jackson v. Harper, 5 Wend. (N. the termination of the tenancy there- Y.) 246; Dem d. Belfour v. Davis, by created. Hodges v. Waters, 124 20 N. C. (3 Dev. & B. Law) 443; Ga. 229, 52 S. E. 161, 1 L. R. A. (N. Love V. Dennis, Harp. Law (S. C.) &.) 1181. 70; McCardell v. Williams, 19 R. I. saVoss v. King, 33 W. Va. 236, 10 701; Hammond v. Dean, 67 Tenn. (8 s. E. 402; Petterson v. Sweet, 13 111. Baxt.) 193; Pence v. Williams, 14 App. 255; Carter v. Marshall, 72 111. Ind. App. 86; Stover v. Davis, 57 W. 609; Cox v. Cunningham, 77 111. 545. Va. 196, 49 S. E. 1023; Delaney v. jf the second lessor should obtain Fox, 2 C. B. (N. S.) 768. possession by action against the ten- 00 See post, §§ 73 a, 78 p (2), 186 ant, such lessor as having obtained ^ (2). possession from the tenant would 91 Lyon V. Washburn, 3 Colo. 201 ; like him, be precluded from denying Den d. Freeman v. Heath, 35 N. C. the title of the original landlord. (13 Ired. Law) 498; Bailey v. Moore, Ballance v. Fortier, 8 111. (3 Gilm.) 21 111. 165; Hamilton v. Pittock, 158 291; Cox v. Cunningham, 77 111. 545. Pa. 457, 27 Atl. 1079; Pomeroy v. 93 Ex parte Punnett, 16 Ch. Div. Dennison, 13 U. C. Q. B. 283. But 226. his liability ty reason of his accep'; 94 Norton v. Sanders, 30 Ky. (7 J. § 19 ATTORNMENT. I79 It is submitted that, of these two diverse views, the former is the sounder on principle. The statutes forbidding an attorn- ment to a stranger, as appears from the recitals in the English statute on which the others are foundied, were intended merely to protect the landlord, and, apart from the statutes, there is no reason whatever for protect-iiig, from the consequences of his own folly or lack of good faith, a tenant who, having procured possession, or a right to continue in possession, by acknowledg- ment of one person as landlord, chooses thereafter to acknowledge another person as his landlord without having received satis- factory proof of the latter 's title. That an attornment by a ten- ant to a stranger is not intrinsically invalid appears both from the exceptions in the statutes and also from the cases recognizing as valid an attornment to one having paramount title, and the only reason for holding it invalid in any case is, it would seem, that injury to the landlord may be prevented. So far as re- gards the tenant's double liability for rent in such ease, it seems reasonably clear that one should not be relieved from his con- tract to pay rent to one person because he has made a like con- tract with another. It has been decided that if a tenant under a lease attorns to a third person, and subsequently surrenders his leasehold and relinquishes possession to his lessor, who is ignorant of such at- tornment, the latter does not, by accepting such surrender, become a successor of his lessee as tenant under the person to whom the attornment was made.®^ c. Attornment equivalent to acceptance of lease. An at- tornment by one in possession to a person with whom he is other- wise in no privity is, it is conceived, in legal effect, merely the acceptance of a lease from the latter. As one who obtains legal exclusive possession of land by permission of another, for a J. Marsh.) 12; Payne v. Vandever, it was decided that where a tenant 56 Ky. (17 B. Mon.) 14; Cook v. Far- of A took a lease from B and sur- rah, 105 Mo. 492, 16 S. W. 692; How- rendered possession at the end of his ard V. Terry, 36 Tenn. (4 Sneed) term to A, B could not claim that 419; Byrne v. Beeson, 1 Doug. A was his tenant and so liable to (Mich.) 179; Donnelly v. O'Day, summary proceedings, since the sec- 1 Misc. 165, 20 N. Y. Supp. 688. ond lease was void as an attornment. In Freeman v. Ogden, 40 N. Y. 105, ss Freeman v. Ogden, 40 N. Y. 105. 180 CREATION OP THE RELATION. § ig limited period only, becomes such other's tenant, so one already in possession who retains possession by permission of such other becomes his tenant. In either case there is a demise of the land if the one person thereafter holds the land "under" the other, that is, by force of his acknowledgment that he is tenant of the other, and it is entirely immaterial that words of leasing are not used, the demand for or acceptance of the acknowledgment being in effect a giving of permission to occupy, sufficient at least to create a tenancy at will. Even in the ease of a formal lease to a person already in possession in his own right or under a person other than the lessor, the lessee may properly, it is conceived, be regarded, by his acceptance of the lease, as making an attorn- ment to the lessor. Such being the nature of an attornment to a stranger by one in possession, it seems obvious that an attornment, by one who is in possession as tenant of one person, to another person having paramount title, cannot properly be regarded as involving a con- tinuance of the same holding with merely a change of landlord. The new landlord is, before the attornment, an absolute stranger to the old tenancy, and the attornment cannot make him in any way a party thereto. The terms of the old tenancy may no doubt be incorporated, expressly or by inference, in the new demise involved in the attornment, but even so there is a new demise and necessarily, therefore, a new tenancy. This has been clearly recognized in the later English cases with reference to an attorn- ment to a mortgagee by a tenant holding under a lease subse- quent to the mortgage, it being held that in such case there is a new tenancy, which may be or may not be upon the same terms as the tenancy under the lease from the mortgagor.^^ ^n,j in one case, apparently, the effect of an attornment to a paramount title other than that of a mortgagee, as creating a new tenancy, seems to have been fully reeognized.^'^ In some cases, however, in connection with the stamp acts, the English courts made some most refined distinctions between what they called an "attorn- ment," consisting of a mere acknowledgment by the person in possession that he was holding as tenant of the paramount claim- a,nt, either upon terms similar to those on which he had been prev- B6 See post, § 73 a (4). st Doe d. Chawner v. Boulter, 6 Adol. & E. 675. § 19 ATTORNMENT. 181 iously holding or without any statement of terms, and "an agree- ment" to hold on terms different, or possibly different, from those on which he had previously held.^^ These cases involved, however, merely the question whether the paper evidencing such an arrangement was an "agreement" within the meaning of the statute requiring stamps upon all "agreements," and they re- garded an agreement to hold upon the same terms as before as merely an attornment, and so not within the requirement, ap- parently for the reason that such was the nature of an attornment at common law, ignoring the lack of analogy between such an acknowledgment of a holding under the transferee of the re- version, to which the term was formerly applied, and this modern use of the term as applied to an acknowledgment of a holding under a stranger. la New York, on the authority of these English cases, it was decided that a tenant who attorned to the claimant of a para- mount title continued, by reason of the attornment, to hold under the old tenancy, with merely a change of landlord, as if the reversion had been transferred to such claimant.^^ The English cases do not, it is submitted, assert any such a view. There are decisions to the effect that an agreement by one in possession to hold under another who has no title and to pay rent to him is invalid for lack of consideration.^"" But this view »8 Cornish v. Searell, 8 Barn. & C. such case be presumed to be upon 471; Doe d. Linsey v. Edwards, 5 the same terms as those recited in Adol. & E. 95, 103; Doe d. "Wright v. the lease. Smith, 8 Adol. & E. 255; Doe d. loo Crlm v. Nelms, 78 Ala. 604; Frankfs v. Frankis, 11 Adol. & E. Fuller v. Sweet, 30 Mich. 237, IS Am. 792. Rep. 122; Compau v. Lafferty, 43 09 Austin V. Aheame, 61 N. Y. 6. Mich. 429, 5 N. W. 648; Sage v. Hal- In the case of Winestine t. Zig- verson, 72 Minn. 229, 75 N. W. 229; latzlu-Marks Co., 77 Conn. 4ff4, 59 Proprietors of Roxbury v. Huston, 39 Atl. 496, it is apparently consfdered Me. 312. The latter case cites Corn- that if one to whom an invalid lease ish v. Searell, 8 Barn. & C. 471. The is made pays the rent reserved, and opinions in this case are singularly so attorns, he thereupon becomes a obscure, and but one out of the three tenant under that lease. It is sub- judges mentions the subject of con- mitted that an Invalid lease cannot sideration. thus be validated. The tenancy is in Smith v. Coker, 110 Ga. 654, 36 S. such ease created by the attornment, B. 107, is also to the effect that such not by the lease. Perhaps the mean- an agreement is invalid for want oi ing is that the attornment will in consideration. In that state, hq-w- 182 CREATION OP THE RELATION. | 19 is not only contradicted by the decisions recognizing the validity of an attornment as against the tenant/"**" but seems also to involve a mistaken notion of the nature of a tenancy. A lease is not, as we have before stated, so far as it creates the relation of tenancy, a contract requiring a consideration to support it, and an agreement to hold under another, an attornment, is, as we have endeavored to show, merely the acceptance of a lease. If one asks another to hold under him, and the latter agrees to do so, a tenancy arises because an estate, at least at will, is vested in the latter. The liability for rent, moreover, is not primarily a contractual liability,^*'"'' and even so regarding it, the grant of permission to continue in possession of the land would con- stitute a consideration, not to speak of the liability to which, in most jurisdictions, the person to whom the attornment is made becomes subject as landlord, by reason of the implied covenant for quiet enjoyment.^^i d. Acts showing attornment. An attornment, that is, an acknowledgment by one in possession of land that thereafter he will hold as tenant of another, may be made, as just indicated, by means of the acceptance of a lease from such other, such accept- ance being indicated either by joinder in the execution of the written instrument, or by language explicitly indicating the ac- ceptance. Or, even though there is no lease in explicit language, the person in possession may state to the other that ' ' I agree to hold of you," or "I attorn to you," or "I hereby acknowledge myself your tenant," or may use equivalent expressions.^''^ But frequently the acknowledgment is not so explicitly expressed, and, even when so expressed, evidence as to the language used may not be readily available, and consequently reference is fre- quently made to particular acts, rather than words, to show that the person in possession has recognized another as his landlord.*"^ Ordinarily, the payment by him of rent to another is regarded ever, the civil law view prevails to (5 B. Mon.) 162; Millay v. Millay, such an extent that oommon-law IS Me. 387; Phipps v. Sculthorpe, 1 standards appear inapplicable. Barn. & Aid. 50; Goodman v. Jones, looa See ante, at notes 91-93. 26 Conn. 264. i.oob See post, § 171 a, at note 122. los Por various clases of acts which i»i See post, § 78 Ic (3), notes 404- have been regarded as showing an 407. attornment, see post, § 73 a 6, § 78 1D2 See Baley v. Deakins, 44 Ky. k (1), at notes 377-380. § 20 DIVISION OF CROPS. 183 as at least p-ima facie evidence of such recognition. The pay- ment of rent to another by one in possession does not, as we have seen,^''* always show a tenancy, since one may pay rent in behalf of his landlord, or may pay rent in his own behalf to one who is not his landlord, but such payment of rent by a person in possession is ordinarily made by him in the capacity of tenant, and is certainly prima facie evidence of an attornment to the person to whom it is paid, or, as it may be otherwise expressed, of the acceptance of a demise made by him. The case is as if the payee had expressly given to the payor permission to hold possession, and the payor had agreed that his possession should be regarded as under the payee. An attornment is not shown by the fact that one in posses- sion of land enters into negotiations as to the acceptance of a lease from a paramount claimant, these negotiations not resulting in an agreement.^"^ It has also been decided that the fact that one who entered as another's tenant assented to arbitration of a demand for rent by such other's wife did not involve an at- tornment to the wife,!"® and that even an offer to pay rent to one contesting the landlord's title, who refused to receive it till the title was settled, did not show an attornment.!**'^ The attornment, to be effective as against the person to whom it is made, must no doubt be accepted by him,io8 but, ordinarily, there is no difficulty in this regard, the attornment being advan- tageous to such person. The acceptance of rent, paid by the person attorning, necessarily shows, it seems, an acceptance of the attornment, unless there, in an explicit agreement to the con- trary. § 20. Lease providing for division of crops — Cropping contract distinguished. "We have before referred to the distinction between a tenant and a "cropper," so called,!"* and the question whether one is 104 See ante, at notes 41-50. i"" Luttrell v. Caruthers, 5 111. App. 105 Center Creek Min. Co. V. Frank- (5 Bradw.) 544. enstein, 179 Mo. 564, 78 S. W. 785; ^"^ Cox v. Cunningham, 77 111. 545. Victory v. Stroud, 15 Tex. 373; los See "Winestine v. Ziglatzki- Blankenship v. Blackwell, 124 Ala. Marks Co., 77 Conn. 404, 59 Atl. 496. 355, 27- So. 551, 82 Am. St. Rep. 175. wo See ante, § 10. 184 CREATION OF THE RELATION. § 20 upon land in one capacity or the other has frequently arisen, it being a very usual custom in this country for the owner of land and another person to agree that the latter shall sow and raise a crop or crops on the premises, which, when raised, shall belong to the two in eertaia named proportions.^^" If such an agreement creates a tenancy, it necessarily involves a lease, giv- ing the lessee an interest in the land, while, if it does not create a tenancy, it is merely a contract, giving the cultivator no inter- . est in the land. The controlling consideration in each case is/ whether the intention of the parties, as indicated by their words j and acts, was to create the relation of landlord and tenant.^^i If the agreement between them is in writing, the intention is to be determined by a construction of the language thereof, ^^^ ' while if verbal it is for the jury to determine from the evidence as to the language and the acts of the parties whether a demise was intended.^ 1^ 110 In Georgia it was held that Mass. 48, 45 Am. Rep. 278 ; Gray v. where one entered as tenant, but Robinson, 4 Ariz. 24, 33 Pac. 712; without any express agreement as Betts v. Ratliff, 50 Miss. 561; Walls to the rent to be paid, a custom in v. Preston, 25 Gal. 59; Johnson v. that neighborhood to lease land for Hoffman, 53 Mo. 504; Moser v. Low- one-third of the corn and one-fourth er, 48 Mo. App. 85; Reed v. McRill, of the cotton controlled, and the land- 41 Neb. 206, 59 N. W. 775; Strange- lord was entitled to demand such way v. Eisenman, 68 Minn. 395, 71 portions of the crops. Scruggs v. N. "W. 617; Anderson v. Listan, 69 Gibs-on, 40 Ga. 511. Minn. 82, 72 N. W. 52, 40 Am. Dec. An agreement by a tenant to pay 60-8; Reeves v. Hannan, 65 N. J. "one-half of all the profits from the Law, 249, 48 Atl. 1018 ; State v. Page, farm" was construed as meaning 1 Speer Law (S. C.) 408; Aiken v. one-half of the gross receipts from Smith, 21 Vt. 172. tales, and not net receipts. Rich- 112 Orcutt v. Moore, 134 Mass. 48, mond V. Connell, 55 Conn. 403, 11 45 Am. Rep. 278; Johnson v. Hoff- Atl. 853. man, 53 Mo. 504; Reed v. McRill', The question of the rights of the 41 Neb. 206, 59 N. W. 775; Gray paTtles as to the crops in the case v. Robinson, 4 Ariz. 24, 33 Pac. 712. of a lease on shares is subsectuently "3 Williams v. Cleaver, 4 Houst. considered. Post, § 253. (Del.) 453; Warner v. Abbey, 112 111 Birmingham V. Rogers, 46 Ark. Mass. 355; McKenzie v. Sykes, 47 254; Hammock v. Creekmore, 48 Mich. 294, 11 N. W. 164. Ark. 264, 3 S. W. 180; Alwood v. In Moser v. Lower, 48 Mo. App. 85, Ruckman, 21 111. 200; Chicago & W. it is said that if there is no dispute M. R. Co. V. Linard, 94 Ind. 319, 48 as to the language, the effect of the Am. Rep. 155; Orcutt v. Moore, 134 language may be declared as matter § 20 DIVISION OF CROPS. 185 As before stated,"* the fact that the possession of the land is intended to pass out of the owner into the person who is tff cultivate it conclusively shows an intention that the relation of landlord and tenant shall be created, since one does not have possession, in the legal sense, unless he is tenant; while if there appears an intention not to give him possession, "exclusive pos- session" as it is ordinarily expressed, the relation of landlord and tenant cannot exist. Ordinarily, however, the intention of the parties as to the possession of the land does not appear, except as it may be deduced from the intention to create a tenancy or the reverse. The fact that the landowner retains the right to control and supervise the operations of the other party to the agreement in cultivating the land has been regarded as tending to show that no tenancy is created,^ ^^ and most properly so, it would seem, since such retention of control by a lessor is most unusual, if not unknown. Occasionally the courts have regarded the fact that by the agreement the cultivator is himself to make the delivery of the landowner's share of the crop to the latter, as tending to show an intention to regard that share as rent, and to create the re- lation of landlord and tenant;"^ and conversely to regard the of law. In Swanner v. Swanner, 50 purpose of enjoying the property Ala. 66, it is said to be a question for herein sold and conveyed, and to the jury -whether the relation of land- control and manage the same as he lord and tenant exists, even if there may see fit, and the court said that is no conflict in the evidence, the in- there was a sale of the timber, grass, tention being doubtful and the agree- and berries combined with a lease, ment verbal. . But stipulations made at the time 11* See ante, § 10. of the agreement as to the mode in 115 Almand v. Scott, 80 Ga. 95, 4 which the farming shall be carried S. E. 892, 12 Am. St. Rep. 241; HufC on do not tend to show that a tenancy V. Watklns, 15 S. C. 82, 40 Am. is not created. Wentworth v. Ports- Rep. 680; McCutchen v. Cren- mouth & D. R. Co., 55 N. H. 540. Shaw, 40 S. C. 511, 19 S. B. 140. us Strain v. Gardner, 61 "Wis. 174, In Freeman v. Underwood, 66 Me. 21 N. W. 35; Steel v. Frick, 56 Pa. 229, an instrument signed by the 172 (semble); ViToodruff v. Adams, landowner granted to another all the 5 Blackf. (Ind.) 317, 35 Am. Rep. timber, grass, and oerries found or 122 (semble) ; Harrison v. Ricks, 71 grown on the land for a term of N. C. 7; McCutchen v. Crenshaw, 40 years, and gave him full power and S. C. 511, 19 S. E. 140. authority to enter said lands for the Ige CREATION OF THE RELATION. § 20 fact that the landowner is to deliver to the cultivator the lat- ter 's share of the crop or of the proceeds thereof as tending to show a contrary intention.^*'' The fact that the instrument contains the ordinary words of demise, such as lease, let, or demise, is not conclusive that it is to take effect as a lease creating a tenancy,"^ but it has been regarded as tending to show that such is the intention,"® and, it would seem, the use of such language might well be given con- trolling effect, in the absence of a clear showing of an intention, in the other parts of the instrument, that the cultivator shall not occupy as tenant. That the instrument, in reserving to the land- owner si share of the crop, speaks of this share as rent has also been regarded as tending to show that it is a lease.^*** 117 See Harrison v. Ricks, 71 N. land v. Voechting, 115 Wis. 352, 91 C. 7. N. W. 990. So the absence of words 118 Bernal v. Hovious, 17 Gal. 542, of demise has been referred to as 79 Am. Dec. 149; Adams v. Thornton, showing that the instrument was not 1 Cal. App. XVIII, 82 Pac. 215; Gris- ^ ^^^^^ Qya,y v. Robinson, 4 Ariz, wold V. Cook, 46 Conn. 198; Ferris 24 33 p^c 712 V. Hogland, 121 Ala. 240, 25 So. 834; ^^ ^^^ ^ork' it has been said that CMwelLv. Distrie^ 15_mnd.(^,|,) ^^^ ..^^^^^^^ ^, ^^^ authorities" in 379; Putnam v. Wise, 1 Hill (N. Y.) ^ .^ ,. 234, 37 Am. Dec. 309; Taylor y. Brad- ^^^ ^^^^^ '^^^"'^ ^o be that, not- ley, 39 N. Y. 138, 100 Am. Dec. 415; withstanding the technical terms em- Aiken v. Smith, 21 Vt. 172; State v. Ployed, such an agreement (for the Page, 1 Speer Law (S. C.) 408, 40 division of crops) does not amount Am. Dec. 608; Armstrong v. Bick- to a technical lease, that the relation nell, 2 Lans. (N. Y.) 216. of landlord and tenant is not con- In Harrison v. Ricks, 71 N. C. 7, templated, and the portion of the it is said that the use of the word crops reserved to the owner is not "rent," as that the owner has "rent- rent. Per Woodruff, J., in Taylor v. ed" his land to another, has by itself, Bradley, 39 N. Y. 229. The whole but little weight in the interpreta- discussion of the subject in this tion of an oral or inartificially and opinion is admirable. But that obscurely written contract. there may be a tenancy created in 119 Walls V. Preston, 25 Cal. 59; this state in connection with an Jones v. Durrer, 96 Cal. 95; Clarke agreement for the division of crops, v. Cobb, 121 Cal. 595, 54 Pac. 74; see Lake v. Sweet, 63 Hun, 636, IS Johnson v. Hoffman, 53 Mo. 504; N. Y. Supp. 342; Rawley v. Brown, Strain v. Gardner, 61 Wis. 174, 21 71 N. Y. 85. N. W. 35; Reeves v. Hannan, 65 N. i^Neal v. Brandon, 70 Ark. 79, J. Law, 249, 48 Atl. 1018; Mundy v. 66 S. W. 200; Reeves v. Hannon, 65 Warner, 61 N. J. I^w, 395, 39 Atl. N. J. Law, 249, 48 Atl. 1018; Durant 697; Steel V. Frick, 56 Pa. 172; Row- v. Taylor, 89 N. C. 351 (semblej. 20 DIVISION OP CROPS. 187 The fact that the landowner furnishes part of the stock and provisions to be used on the premises does not exclude the re- lation of tenancy.! 21 By some cases the fact that the agreement contemplates the growing of one crop only, as distinguished from successive crops extending through two or more years, is regarded as tending to show that no demise is intended.^^^ gy other cases, however, this line of distinction is repudiated,i ^^ and it is not frequently asserted at the present day. Other provisions which have been regarded as tending to show that the instrument was to take effect as a lease are stipulations against under letting,i24 that the occupant shall keep buildings in repair,i25 that he shall pay the taxes,i2e and that he shall give Diyon v. Nlccolls, 39 111. 372, 89 Am. Dec. 312. In Hoskins v. Rhodes, 1 Gill & J. (Md.) 266, it is said that the reser- vation of a share of the grain as "rent" necessarily shows the instru- ment to be a lease. But the use of the word "rent" is not ordinarily re- garded as conclusive. See Aloser V. Lower, 48 Mo. App. 85; Ponder v. Rhea, 32 Ark. 435; Putnam v. Wise, 1 Hill_(N. Y.) 234, 37 Am. Dec. 309; Haywood v. Rogers, 73 N. C. 320. 121 See Smith v. Schultz, 89 Cal. 526, 26 Pac. 1087; Wentworth v. Portsmouth & D. R. Co., 55 N. H. 540; Baughman v. Reed, 75 Cal. 319, 17 Pac. 222, 7 Am. St. Rep. 170; Smith v. Meech, 26 Vt. 233; Hatchell v. Kimbrough, 49 N. C. (4 Jones Law) 163; Harrison v. Ricks, 71 N. C. 7; Schlicht V. Callicott, 76 Miss. 487. And see post, § 254. i22Bradish v. Schenck, 8 Johns. (N. Y.) 151; Herskell v. Bushnell, 37 Conn. 36, 9 Am. Rep. 299; Ponder v. Rhea, 32 Ark. 436; Harris v. Frink, 49 N. Y. 24, 10 Am. Rep. 318; Arm- strong V. Bicknell, 2 Lans. (N. Y.) 216; Bishop v. Doty, 1 Vt. 37; Warn- er V. Hoisington, 42 Vt. 94 (semble). So the fact that the agreement was to endure for the space of one year, this being more than a cropping sea- son, was regarded a? tendiiig to show a lease. Strain v. Gardner, 61 Wis. 174, 21 N. W. 35. The decisions are based on Hare V. Ceiey, Cro. Eliz. 143, where it was decided that "exposing" the land to another "to sow at halves" was not a lease, "but otherwise if it be for two or three crops." No reasons for the distinction are given m the re- port. 123 Woodruff V. Adams, 5 Blackf. (Ind.) 317, 35 Am. Rep. 122; Moul- ton V. Robinson, 27 N. H. 550; Put- nam V. Wise, 1 Hill (N. Y.) 246, 37 Am. Dec. 309; Aiken v. Smith, 21 Vt. 172. See Chicago & W. M. R. Co. v. Linard, 94 Ind. 319, 48 Am. Rep. 155. ii24 Walls V. Preston, 25 Cal. 59; Reeves v. Hannon, 65 N. J. Law, 249, 48 Atl. 1018. 125 Strain v. Gardner, 61 Wis. 174, 21 N. W. 35; Rakestraw v. Floyd, 54 S. C. 288, 32 S. B. 419; Steel v. Frick, 56 Pa. 172; Reeves v. Han- non, 65 N. J. Law, 249, 48 Atl. 1018. 128 Steel V. Prick, 56 Pa. 172. 188 CREATION OF THE RELATION. § 20 up possession at the end of the time named-^^T Qn the other hand, stipulations that the cultivator shall behave in a moral -manner and be respectful to the landowner and to his family tends to show that a lease is not intended.i^* In two or three states the question whether in a particular case the relation of landlord and tenant exists between the landowner and one cultivating the land on shares is determined with ref- erence to statutory provisions there existing. In Alabama it is provided that such relation shall exist when one party furnishes the land and another party the labor and team to cultivate it, and the crops are to be divided, while "the contract of hire" shall be held to exist if one party furnishes the land and the team and the other the labor, thus making the existence of a tenancy dependent on the question of whether the landowner furnishes the team.129 In a Kentucky case it was apparently stated that, 127 Since he could not give up thews, 132 Ala. 286, 31 So. 613. It possession if he did not have it. seems that when there is no stipu- Johnson v. Hoffman, 53 Mo. 504; lation as to the furnishing of the Rakestraw v. Floyd, 54 S. C. 288, 32 S. team, the relation of tenancy exists E. 419. And see Jones v. Durrer, 96 hy reason of the fact that in such 'Cal. 95, 30 Pac. 1027, apparently to case the occupant must furnish it. this effect. Wilson v. Stewart, 69 Ala. 302. It was held that a tenancy In Hendricks vs. Clemmons, 147 existed when it was agreed that the Ala. 590, 41 So. 306, it is held that cultivator was to give a lien on his the provision that a contract of hire crop for advances, which by statute shall exist when one party furnishes a laborer cannot give, that he was the land and team and the other the to keep the place in repair, clear labor does not apply if each party is out the ditches, and clear the river to furnish one-half the fertilizers, banks of brush, which provisions The court says that tTie parties are seemed to contemplate his control tenants in common of the crops, but of the premises, that he was not it does not say what their relation to hire out his hands (a laborer does is as regards the land, not usually have hands) , and wa'3 to 'In Georgia it is provided (Code give up possession at a certain data. 1895, § 3131) that "where one is Rakestraw v. Floyd, 54 S. C. 288, 32 employed to work for part of the S. E. 419. crop, the relation of landlord and 128 McCntchen v. Crenshaw, 40 S. tenant does not arise." This seems C. 511, 19 S. E. 140, 44 Am. St. Rep. to amount merely to a provision '^39. that the fact that one who is an- 128 Code 1907, §§ 4742, 4743. See employe is paid by a share of the Kilpatrick v. Harper, 119 Ala. 452, crop does not necessarily make him 24 So. 715; Ragsdale v. Kinney, 119 a tenant, which is sufficiently obvi- • Ala. 454, 24 So. 443; Hunt v. Mat- ous. § 20 DIVISION OF CROPS. 189 by reason of a statutory provision that contracts by which a landlord is to receive a portion of the crop as compensation for the use or rent of the land shall vest in him the right to such a portion of the crop, when planted, as he has contracted for, the relation of landlord and tenant exists in cases of an agreement for the division of crops,!^'' but in a later case the possibility that such an agreement may not create a tenancy is clearly recognized.i^i Occasionally it has been said that an instrument providing for the sharing of crops will not be construed as a lease unless such clearly appears to be the intention of the parties,!^^ and this would seem to be a reasonable rule, calculated to remove to some extent the difficulties with which the subject has been in- j vested. An instrument providing for the cultivation and divi- sion of crops should not any more than any other instrument, be extended in effect so as to operate likewise as a lease, unless such appears to have been the intention of the parties. This view, that an agreement for a division of the crops is in itself no evidence that a lease is intended, is indicated, though not clearly stated, in a number of cases in which the construction of the instrument was adverse to the existence of a tenancy .1^* It has, in one state, been said that when there is any question as to whether an instrument providing for the division of crops between the cultivator and the landowner constitutes a lease or isoRedmon v. Bedford, 80 Ky. 13. Reynolds, 48 Hun (N. Y.) 142; 131 Wood V. Garrison, 23 Ky. Law McLaughlin v. Kennedy, 49 N. J. Rep. 295, 62 S. W. 728. Law, 519, 10 Atl. 391; Gray v. Rey- is2Alwood V. Ruckman, 21 111. nolds, 67 N. J. Law, 169, 50 Atl. 200; Guest v. Opdyke, 31 N. J. Law, 670; Wood r. Garrison, 23 Ky. Law 552. Rep. 295, 62 S. W. 728; Culley v. 133 Shields v. Kimhrough, 64 Ala. Taylor, 62 Neb. 651, 87 N. W. 334; 504; Bourland v. McKnight, 79 Ark. Messinger v. Union "Warehouse Co., 427, 96 S. W. 179; Richards v. Ward- 39 Or. 218, 56 Pac. 808; Rogers v. well, 82 Me. 343, 19 Atl. 863; Adams Frazier Bros. & Co. (Tex. Civ. App.) v. Thornton, 1 Cal. App. XVIII, 82 108 S. "W. 727. But see Schlicht v. Pae. 215; Moore v. Linn (Okl.) 91 Calllcott, 76 Miss. 487, 24 So. 869; Pac. 910; Creel v. Kirkham, 41 111. Alexander v. Zeigler, 84 Miss. 560, 344; Delaney v. Root, 99 Mass. 546, 36 So. 536, where a tenancy was 97 Am. Dec. 52; De Mott v. Hager- regarded as created although there man, 8 Cow. 123. L. and Ten. 14. 210 CREATION OF THE RELATION. § 22 lease for ninety-nine years, it appearing that otherwise the estate would be almost entirely unproductive.^s^ A general power to lease has been held not to authorize an oil and gas lease, the premises having been previously used only for agricultural purposes.254 g^t a power to manage and control the testator's estate according to the trustee's own best judgment and discretion, "the same as I could do myself, if living," has been regarded as authorizing a lease of unopened as well as opened mines.25^ A power given to trustees "to lease any portion of said real estate for such period, and upon such terms and conditions, as they shall think best" has been held to authorize leases for long terms of years, with provisions for the purchase of improvements made by the lessees, and for altering the rent from time to time by arbitration or appraisal,^^® and a power to change investments has been held to authorize a lease for ninety-nine years renewable forever,25T as has a power "to dispose of any of my real estate, in fee simple, or for a term of years, or otherwise, in as full and large a manner in every respect as I could myself, if living, "^ss There are numerous English cases bearing upon the validity of leases made by trustees of a charity, the general resxilt thereof being that such a lease will be supported if it can be shown to be reasonable and advantageous, or to accord with the intention of the founder of the charity, the presumption being that a lease made for an imusual length of term, having reference to the char- acter of the lease, is not a proper exercise of their powers.^^® And ass Marsh v. Reed, 184 111. 263, 56 254 Lanyon Zinc Co. v. Freeman, N. E. 306, afg. 64 111. App. 535. See 68 Kan. 691, 75 Pac. 995. See "Wood Denegre v. "Walker, 214 111. 113, 73 v. Patterson, 10 Beav. 541. N. B. 409, and case cited post, note ass Raynolds v. Hanna, 55 Fed. 262. This decision would perhaps 783. And see Eley's Appeal, 103 .Pa. not be accepted in all jurisdictions. 300; Daly v. Beckett, 24 Beav. 114. As a general rule a court will sse Goddard v. Brown, 12 R. I. 31. not give a trustee powers other 257 Collins v. MacTavish, 63 Md. than those given him by the creator 166. of the trust, the court's proper sss Prather v. Foote, 1 Disn. sphere of action being merely to (Ohio) 434. approve and supervise the exercise 2S9 gee Lewin, Trusts (11th Ed.) by the trustee of those powers which 632. In Hill, Trustees, p. 464, it is have been given him. See Pearse v. said: ""With regard to the term to Baron, Jac. 158, as to a power to be granted, it may be laid down as make a lease for a limited term. a general rule (though subject to § 22 OFFICIAL CAPACITY OF PARTIES. 211 a failure to reserve a sxifficienf rent, or otherwise to obtain an adequate consideration, will be ground for setting aside such a lease, if the inadequacy be very considerable.^eo In one ease in this country it has been decided that the trustees of a charity may make a "perpetual lease, "^isi There are several decisions in this country as to the power of trustees to make leases, in which the fact that the trusts were for public and charitable purposes may have affected the decisions, though no emphasis is laid on this point. In one case it was held that the trustees of an educational fund, though forbidden to sell or alien the land belonging to the fund, could make a lease of vacant land for ninety-nine years, reserving no rent, the consider- ation taking the form of a gross sum to be paid in eight annual installments, this being in effect the only mode in which any in- come could be secured from the property, and valuable improve- ments having been made under the lease.^^^ j^^^ j^ ^^s been de- cided that where the trustees were directed to keep mines con- stantly leased upon leases not exceeding five years, and satisfac- tory tenants could not 'be obtained for so short a term, and such short leases would result in injury to the mines, equity would direct leases to be made for a longer term.^^s And where the trustees of land given for educational purposes were required by the terms of the gift to improve a lot with buildings for the pur- pose of teaching, the court approved a lease by them for ninety- nine years to a corporation which was prepared to erect additional buildings and to use them for school purposes, the original build- ings being put of repair and the trustees having no funds for the making of repairs.^^^ many exceptions) that it should be 262 Black v. Ligon, Harp. Eq. (S. (1) for years and not on lives, (2) c.) 205. not for more than twenty-one years, aes in re City of Philadelphia, 2 or, in case of buildng leases, for ^^.^^^^ (p^.) 452. See remarks in ninety-nine years, (3) in posses- ^^^^^ ^^^^^^^ 33^ .^ reference to sion and not reversionary, and (4) ^^^ ^^^^^^^ ^ ^ ^^ ^^^^ -without any absolute covenant for renewal, still less for perpetual re- ®® ^^' ^™- In Appeal of Trustees of Proprie- newal. 2«oLewin Trusts, 630; Hill, Trust- tors School Fund, 2 Walk. (Pa.) 37, ees, 464; 1 Piatt, Leases, 347 et sea. * mining lease for nine hundred and 261 City of Richmond v. Davis, 103 ninety^nine years was upheld Ind. 449 3 N. B. 130. 26* Trustees of Madison Academy 212 CREATION OP THE RELATION. § 22 One of two or more cotrustees cannot, it lasts been decided, make a lease in bebalf of the others, the exercise of the deliberate judg- ment and discretion of all the trustees being necessary for this purpose. Furthermore, as is remarked in the same case, such a lease would frequently involve a violation of the statute of lrauds.265 It has been decided in Georgia that the trust fund is liable to the lessee for failure to repair as required by the law of that state.266 Elsewhere it has been decided that if a person occupying a trust position makes a lease in behalf of the trust, he has no authority to insert a covenant for quiet enjoyment, and that he is himself personally liable for a breach of such a covenant,^'''' a view which is in accord with the general rule as to the liability of a person occupying such a position upon a covenant in a con- veyance by him.288 Accordingly, a trustee, in making a lease, should generally refrain from entering into personal covenants except against his own acts. A cestui que trust, not having the legal title, has no power to make a lease, and the trustee may evict the lessee as a tres- passer,2e9 unless it appears that in making the lease the trustee acted as agent for the trustee.^'^'' The lessee would, however, or- dinarily be precluded from questioning the title of the lessor in this as in other cases.^'^^ In view of the disability of the cestui que^ trust in this respect, and of the fact that a lease by the trustee alone may be questioned as being for an excessive period, or as being disadvantageous to the trust estate, it is desirable that the lessee procure the joinder of both the trustee and the cestui que trust. ^''^ In some jurisdictions, moreover, in view of the decisions; V. Board of Education of Richmond, Trustees, 282, 508; Rawle, Coven- 16 Ky. Law Rep. 51, 26 S. W. 187. ants for Title, §§ 33-36. aes Winslow v. Baltimore & O. R. 269 i piatt, Leases, 123. Co., 188 U. S. 646, 47 Law. Ed. 635; 2to See Vallanee v. Savage, 7 Bing. Sinclair v. Jackson, 8 Cow. (N. Y.) 595; Howe v. Scarrot, 4 Hurl. & N. 543. 723. 266 Miller v. Smytlie, 92 Ga. 154, IS 2ti Blake v. l\)ster, 8- Term. R. S. E. 46. 487; Alchorne v. Goinme, 2 Bing. 54; 267 Chestnut v. Tyson, 105 Ala. Dolby v. lies, 11 Adol. & E. 335.. 149, 16 So. 723, 53 Am. St. Rep. 101. See post, § 78. See Greason v. Keteltas, 17 N. Y. 2^2 in 1 piatt. Leases, 124, it is 491. said: "The trustee should 'demise- 26S See Lewin, Trusts, 516; Hill, and lease,' and on the part of the- § 22 OFFICIAl, CAPACITY OF PARTIES. 213 to the effect that a lease by the trustee can endure only for the life of the trust, it is important to have the persons who are to take after the ternjination of the trust join in the lease, if they are mi juris at the time of its execution. A lease may be made to one as trustee for another, and in such ease he may be made personally liable thereunder,^^® while the cestui que trust is exempt from liability on any of the covenants, although he goes into possession, there being no privity between him and the landlord.^^* b. Executors and suilministrato]:^ — (1) In absence of ex- press authority. Apart from statute, unless authority for the purpose is expressly given by decedent's will, an executor or ad- ministrator, having no rights in the decedent's real property, has no poAver to make a lease of land in which the decedent had an estate of freehold.^^^ Chattels real, however, including terms for years and interests from year to year, pass to the executor, and of these he may make leases or subleases, provided this seems for the advantage of the estate and a judicious mode of administering the assets.^''® An option of purchase in such a sublease is bad, it has cestuis que trust, words of demise 274 Walters t. Northern Coal MIn. should be Inserted, as well as words Co., 5 De Gex, M. & G. 629.; Ramage of consent and approbation. If -y^ Womack [1900] 1 Q. B. 116. there be several cestuis que trust, ^js Yarborough v. Ward, 34 Ark. the concurrence of all should be 304; Rutherford's Heirs v. Clark's obtalned,-for if a trustee under a ^^^^^^ ^^ ^^ ^^ ^^^^^ 27; Lee v. will concur with some but not all . „, ^, „ „„ ^ 1^, ■, 1, of the cestuis que trust in making ^^^' ^4 N. C. 70; In re Merkels a lease, which recites part only of Estate, 131 Pa. 584, 18 Atl. 931; Stev- the trusts, the lessee cannot hold in ens v. Stevens, 69 Hun, 332, 23 N. oppositon to the other cestuis que Y. Supp. 520; Murphy v. Thomas, 41 trust not parties to the lease. The ^iss. 429. circumstance of the recital render- It has been held that the adminis- Ing it Incumbent on him to make trator may lease land for the pur- further inquiry, he Is considered as purpose of paying debts, if the heirs havipg had notice of the title of consent thereto. Ashley v. Young, the other claimants under the will." "3 Miss. 12D. 29 So. 822. Citing Malpas v. Ackland, 3 Russ. "o Bac. Abr., Leases (I) 7; Keat- 273, in which case the lease was for ing v. Keating, Lloyd & G. t. Sugd. slxtyone years, and there was no US; Hackett v. McNamara, Lloyd & suggestion that it was within the G. t. Plunk. 283; Drohan v. Drohan, 1 powers of the trustee. Ball & B. 185 ; Magrane v. Archbold, 273 Wise V. Perpetual Trustee Co. 1 Dow, 107. [1903] App. Cas. 139. 214 CREATION OF THE RELATION. § 22 been held, because it prevents a sale to any person other than the lessee.2^^ One of two or more executors or administrators may alone make a valid sublease, which, although not purporting to be the act of all, will be as valid as if the act of all.^'^* If a term of years is specifically bequeathed, the legal title vests in the legatee upon the executor 's assent to the bequest,*''^^ and thereafter the legatee could eject one holding under a lease made by the executor. For this reason a person proposing to take a lease from an executor should ascertain whether the property has been specifically bequeathed, and, if such is the case, he should obtain the legatee's concurrence in the lease.^^'' Even though an executor make a lease without any authority or power so to do, it does not seem that the lessee could assert this fact in defense to a claim for rent, the case being similar to that of any lease made by one having no title to the property.^*^ For the reason that an executor or administrator has no power to bind tlie estate by a contract not arising from any obligation on the part of the decedent, it has been held that if the administrator exercises an option of renewal, contained in a lease to his intes- tate, he is personally liable for the rent thereunder.^ss (2) Express powers. Occasionally the executor is, by the decedent's will, given power to make leases, as he may be given power to make sales.^®^ Such a power, if there is given to the executor no interest in the property, is a "naked" or "bare" power,28* while, if the legal title is given to him, he is in effect a trustee, and he has a power "coupled with an interest. "^^^ In the latter case the executor will be the landlord of the lessee, but not in the former case, since the reversion is not in him but in the sTT Oceanic Steam Nav. Co. v. ssi See Gregory v. Michaels, 1 Misc. Sutherberry, 16 Ch. Div. 236. 195, 20 N. Y. Supp. 877, and post, 27spannel v. Fenn, Cro. Eliz. 347; § 78 g. Simpson v. Gutteridge, 1 Madd. 282C]iisholm v. Toplitz, 82 App. 609; Doe d. Hayes v. Sturges, 7 Div. 346, 82 N. Y. Supp. 1081; Id., Taunt. 217. See Woerner, Adminis- 178 N. Y. 599, 70 N. E. 1096. tration, § 34. 283 See 1 Tiffany, Real Prop. § 273. 279 Doe d. Saye v. Guy, 3 East, 2S4Killam v. Allen, 52 Barb. (N, 120; 2 Williams, Executors (9th Y.) 605; Morse v. Morse, 85 N. Y. 53. Ed.) 1231. 285 1 Tiffany, Real Prop. §§ 276, 280 See 1 Piatt, Leases, 370. 279. § 22 OFFICIAL CAPACITY OP PARTIES. 215 heir or devisee, and the latter is the landlord, ^ss the lease taking effect as if made by the decedent. A power in the executor to make leases has been inferred from a direction as to the disposition to be made by him of the rents from the land,287 and a power "to sell and dispose of so much of the real estate as may be necessary to fulfil the will" was held, under the circumstances, to authorize a lease by him.^s* "Where the widow was given for life such portion of the land as she de- sired, and the executor was directed to lease "the balance," he was regarded as having authority to lease all the land after the widow's death.289 (3) Statutory powers. In a few states the statute expressly authorizes the executor or administrator to make leases for pur- poses of administration until a final settlement of the estate.^^" A lease not made "at public outcry" as required by the statute has been held to be ineffective.^^! Occasionally the executor or administrator is by statute authorized to lease by the direction or with the approval of the probate court.^^s In a number of states the executor or administrator is by stat- ute given the right to possession of the real estate as against devisees and heirs until the settlement of the state, ^^^ and under these statutes he would, it seems, have a right to make leases sub- ject to termination upon the settlement of the estate.^^* 286 Page V. Davidson, 22 111. 112. one entering under a void lease, pay- 2S7 McCall V. Peachy's Adm'r, 3 ing a yearly rent, becomes a tenant Munf. (Va.) 288. from year to year. 288 Hedges v. Riker, 5 Johns. Ch. asi Chighizola v. Le Baron, 21 (N. Y.) 163. -A-'a. 406; Martin v. Williams, 18 289 Doe d. Hoyle v. Stowe, 13 N. Ala. 190. C. (2 Dev. Law) 318. 292 See California Code Civ. Proc. 290 A-lalama Code 1907, § 2618; § 1579; Burns' Ann. St. Indiana, § Michigan 2 Comp. Laws 1897, § 2524; Maine Rev. St. 1903, c. 73 § 9354; Texas Rev. St. 1895, art. 2105. 1; Miss. Code 1906, § 2071; New The Michigan statute authorizing YorTc Code Civ. Proc. § 2760. a lease by the executor from year 293 See 2 Woerner, Administra- te year, it was held that a lease for tion, § 337; 11 Am. & Bng. Enc. Law two years was void, but that "the (2d Ed.) 1037. void lease for two years created a ten- 294 See Smith v. Park, 31 Minn, ancy from year to year, as In ordinary 70, 16 N. W. 490; Doolan v. McCauley, cases." Grady v. Warrell, 105 Mich. 66 Cal. 476, 6 Pac. 130; Burbank v. 310, 63 N. JV. 204. Presumably the Dyer, 54 Ind. 392. That the execu- court refers to the general rule that tor has no power to lease after the 216 CREATION OF THE RELATION. § 22 c. Guardians — (1) Of infants. A guardian "by nature" or "for nurture," who has the custody of the infant's person only, and not of his property, has no power to make a lease of the infant's land,295 except perhaps at will.^^^ A guardian having charge of the infant's property, on the other hand, may make leases thereof, and, apart from a statutory provision to the con- trary, such guardian, if a guardian in socage, a testamentary guardian, or a guardian hy election of the infant, has power to make a lease without authorization from any court, he having not a bare authority but an interest.^^^ A guardian appointed by a court of chancery is, it has been said, in the position of a mere receiver, 2«8 and cannot make leases without the sanction of the eourt,^®^ but it has on the other hand been said that he may make leases-^**" It would seem that a guardian appointed by a court of probate, by authority of statute, would be, in this regard, in the same position as if appointed by a court of chancery, in the absence of a specific provision in the statute as to the making of leases by him.^"! There are several cases in which the authority of a guardian to make leases is asserted in general terms, and in settlement of the estate, see Jack- Johns. Ch. (N. Y.) 150, 11 Am. Dec. son V. O'Rorke, 71 Neb. 418, 98 N. "W. 441; Emerson v. Splcer, 46 N. Y. 1068. 594. See 1 Piatt, Leases, 371. 205 May V. Calder, 2 Mass. 55; 298 per Patteson J., in Rex v. Darby v. Anderson, 1 Nott & McC. Sutton, 3 Adol. & E. 597. (S. C.) 369; "Magruder v. Peter, 4 =<"' 1 Piatt, Leases, 380, citing Mc- Gill & J. (Md.) 323; Ross v. Cobb, Pherson, Infancy, 106; Woerner, 17 Tenn. (9 Yerg.) 463; Indian Land Guardianship, 47. & Trust Co. V. Shoenfelt, 5 Ind. T. sooit is stated oMter by Chancel- 41, 79 S. W. 134. lor Kent in Field v. Schieffelin, 7 In Maxwell v. Urban, 22 Tex. Civ. Johns. Ch. (N. Y.) 150, 11 Am. Dec. App. 565, 55 S. W. 1124, it Is held 441, that a chancery guardian has the that a lease by a natural guardian same power in this respect as a expires on his death, thus appar- guardian in socage, ently conceding the validity of Such soi a statutory provision that the a lease. guardian appointed by the probate 296 Pigot V. Garnish, Cro. Eliz. court shall have the same powers 678, 734. as a testamentary guardian or 287 Osborn v. Carden, 1 Plowd. guardian in socage removes any pos- 293; Wade v. Baker, 1 Ld. Raym. sible disability in this regard. See 130; Rex v. Inhabitants of Oakley, Thacker v. Henderson, 63 Barb. (N. 10 East, 491; Hutchins v. Dresser, 26 Y.) 271; Holmes v. Seeley, 17 Wend. Me. 76; Richardson v. Richardson, (N. Y.) 78; Pond v. Curtiss, 7 Wend. 49 Mo. 29; Field v. Schieffelin, 7 (N. Y.) 45. I 22 OFFICIAL CAPACITY OF PARTIES. 217 which, it seems, the guardian in question may have been appointed by a court of chancery or a probate court, without any clear showing in this regard.^oa Quite frequently there are express statutory provisions as to leases by guardians, ordinarily providing for the approval thereof by the court.sos It has been decided that a statute authorizing the guardian to lease the ward's land on such terms, and for such length of time as the court may approve, does not invalidate a lease executed by the guardian without such approval, but ren- ders it voidable merely on the court's disapproval.so* A guardian having power to lease without authority of court may make a lease reserving a share of the crops as rent,^*'^ but it has been held that' he has no right to make an "oil" or "gas" lease, since this involves the permanent withdrawal of a part of the corpus of the estate.^*"' In Michigan, provisions that the pointed by the court, and ' having guardian appointed by the probate given bond, may lease his ward's court "shall have the care and man- land without the order of the court." agement of the estate," and shall No authority is cited, "dispose of and mortgage all such In Talbot v. Provine, 66 Tean. (7 estate and effects according to law," Baxt.) 502, It was held that the and shall 'pay all just debts, * • * Chancery court could authorize or out of his personal estate and confirm a lease made by a guardian the income of his real estate, if if to the advantage of the ward. It sufficient, and if not, then out of does not appear how the guardian his real estate, upon obtaining in this case was appointed, license for the sale thereof" (Comp. 3«3 See e. g.. Mills' Ann. St. Colo- St. 1897, §§ 8703, 8704, 8717), were rado 1891, | 2081; Maine Rev. St. held to authorize the guardian to 1903, c. 73, § 1; Massachusetts Rev. lease without authority from the Laws 1902, c. 146, § 29; Ohio Rev. court. Kinney v. Harrett, 46 Mich. St. 1906, f 6295 et &eii.;Rhode Is- 87, 8 N, W. 708. land Gen. Laws 1906, c. 196, § 32; 302 Graham v. Chatoque Bank, 44 Shannon's Code, Tennessee 1896, | Ky. (5 B. Mon.) 45; Weldon v. 4283; Texas Rev. Civ. St. art. 2633; Lytle, 53 Mich. 1, 18 N, W. 533; Yirgmia Code 1904, §J 2615-2621; Thacker v. Henderson, 63 Barb. (N. West Virginia Code 1906, § 3228 et Y.) 271; Hughes' Appeal, 53 Pa. seq.; Wisco»Mim Rev. St. 1898, § 3991. 500; Stoughton's Appeal, 88 Pa. 198; w* pield v. Herrick, 101 111. 110. Windon v. Stewart, 43 W. Va. 711, Compare Bates v. Dunham, 58 Iowa, 28 S. E. 776. 308, 12 N. W. 309. In Indian Land & Trust Co. v. sob Weldon v. Lytle, 53 Mich. 1, Shoenfelt, 5 Ind. T. 41, 79 S. W. 134, 18 N. W. 533. it is said that "a general guardian soe Stoughton's Appeal, 88 Pa. 198; at common law, having been ap- Wilson v. Youst, 43 W. Va. 826, 28 218 CREATION OF THE RELATION. 22 The guardian has, at most, power to make a lease extending only to the time of the ward's majority, and if he undertakes to make one extending beyond that time it may be avoided by the ward upon coming of age.*'^^ If the guardian's authority expires by law before the ward becomes of age, the lease may be avoided by another guardian then appointed.^"^ A lease by a guardian for a term extending beyond the term of the guardianship has been asserted to be absolutely void,^"^ but it seems rather to be voidable merely, so that the ward may, on coming of age, adopt it if he thinks fit.sio A guardian making a lease of his ward's property is not, it has been held, liable as upon an implied covenant upon the les- see's eviction.^ii The ward is not liable upon a stipulation in the lease by the guardian to pay the value of improvements made by the lessee,3i2 but the guardian has been held liable upon such a stipulation, although made with the approval of the court,'** and if he undertakes to enter into a covenant for quiet enjoyment he is personally liable thereon.^** S. E. 781; Haskell v. Sutton, 53 W. Va. 206, 44 S. B. 533. sOTWatklns v. Peck, 13 N. H. 360, 377; Graham v. Chatoque Bank, 44 Ky. (5 B. Mon.) 45; Jackson v. O'Rorke, 71 Neb. 418, 98 N. W. 1068. 308 Snook v. Sutton, 10 N. J. Law (5 Halst.) 133; Emerson v. Spicer, 46 N. Y. 594; In re Stafford, 3 Misc. 106, 22 N. Y. Supp. 706. 309 Ross V. Gin, 4 Call (Va.) 250; Roe d. Parry v. Hodgson, 2 Wils. 129. 310 Van Doren v. Bveritt, 5 N. J. Law (2 South.) 460, 8 Am. Dec. 615; People V. Ingersoll, 20 Hun (N. Y.) 316, 58 How. Pr. 351; Graham V. Chatoque Bank, 44 Ky. (5 B. Mon.) 45. It Is said in Bac. Abr., Leases (I) 9: "For such leases were not derived barely out of the interest of the guardian, or to be measured thereby, but take effect also by virtue of his authority, which, for the time, was general and absolute; and therefore all law- ful acts done during the continu- ance of that authority are good, and may subsist after the authority itself, by which they were done, is determined; and consequently the infant, when he comes of age, may by acceptance of rent or other act, if he thinks fit, make such leases good and unavoidable." 311 "Webster v. Conley, 46 111. 13, 92 Am. Dec. 234. There the lease was made without authority of court as required by statute, but the court says that the rule would be the same had the lease been authorized. 312 Barrett v. Cocke, 59 Tenn. (12 Heisk.) 566. 313 Nichols V. Sargent, 125 111. 309, 17 N. E. 475, 8 Am St. Rep. 378. The court says that he may obtain indemnity from the ward, a view Which is not in accord, apparently, with the case cited in the next pre- ceding note. 31* Chestnut v. Tyson, 105 Ala. 149, 16 So. 723, 53 Am. St. Rep. 101. § 22 OFFICIAL CAPACITY OF PARTIES. 219 (2) Of lunatics. At a common law, it seems, the committee or guardian of a lunatic has no power to lease the land of the ward without authority from the court, he being in effect a mere bailiflf,3i*a ^^^ ^jjjg p^jg jjg^g been asserted not to apply to a lease from year to year.^i^ Occasionally the matter is controlled by an express statutory provision on the subject.^^* It has been decided that under a statute providing that he "shall have the charge of" and "manage" the property of the ward, he may make a lease for a reasonable time without authority from the court.^^'. A lease made without the order, of court as required by statute will be set aside if made for an inadequate rent.^^* Whether this would be done when an adequate rent was reserved would pre- sumably depend on whether the lease was for the advantage of the lunatic as a whole. d. Receivers. A receiver may make a lease, when authorized by the court so to do and not otherwise.^i* The court will not 314a 1 Piatt, Leases, 38, citing Cocks sis Alexander v. Bufllngton, 66 V. Darson, Hob. 215 a; Hutt. 16; Iowa, 360, 23 N. W. 754. InPharlsv. Foster v. Marchant, 1 Vern. 262, Gere, 110 N. Y. 336, 18 N. B. 135, 1 L. 1 Eq. Cas. Abr. 277, pi. 4, 326, R. A. 270, the court refused to decide pi. 13; Knipe v. Palmer, 2 Wils. whether a statute providing for a 130 ; Den d. Brooks v. Brooks, 25 N. lease by order of court, -with a fur- C. (3 Ired. Law) 389. See Pharis v. ther provision that the property of Gere, 110 N. Y. 336, 18 N. E. 135, 1 a lunatic should "not be leased for L. R. A. 270. more than five years, or mortgaged In Richardson v. Richardson, 49 or aliened or disposed of otherwise Mo. 29, it was decided that a guard- than herein directed," dispensed Ian appointed by a testator for his with the necessity of such an order insane son could make a lease. He in the case of a lease for less than presumably was in the position of five years, but held that a lease made a trustee, or if the son was an in- without such an order, for a fant, which does not appear, he was rent dependent on the success of the in the position of a guardian to an lessee corporation, in order to give infant. the lessee the control of a certain 315 De Treville v. Ellis, Bailey Eq. product, was unauthorized. (S. C.) 35, 21 Am. Dec. 518. ^19 i piatt. Leases, 389; Morris v. 316 See Mills Ann. St. Colorado Elme, 1 Ves. Jr. 139; Weeks v. 1891, i 2945; Connecticut Gen. St. Weeks, 106 N. Y. 626, 13 N. E. 96; 1902, § 241; Virginia Code 1904, §§ Simmons v. Allison, 118 N. C. 761, 1705, 2615-2621; West Virginia Code 24 S. E. 740; Neale v. Bealing, 3 1906, § 3228 et seq. Swanst. 304; Roberts v. Armstrong, 317 Palmer v. Chesboro, 55 Conn. 1 Moll. 27, note; Wynne v. New- 114, 10 Atl. 508. See Campau v. borough, 1 Ves. Jr. 164; Farmers' Shaw, 15 Mich. 226. Loan & Trust Co. v. Eaton, 51 C. C. 220 CREATION OF THE RELATION. | 23 ordinarily, it seems, order a lease for such a length of time that it is likely to endure beyond the termination of the litigation,32o though if such a lease is made it will not terminate with the liti- gation.321 An application for a direction to a receiver, appointed in credi- tors' proceedings, to make a lease binding on an infant remain- derman, has been refused.322 A receiver may, no doubt, under authority of the court, take a lease of property if this is necessary or desirable for the con- duct of the receivership. He cannot, without such authority, bind the fund in his hands by a lease extending beyond the reeeiver- ship.323 § 23. Lease to two or more persons. In the case of a lease to two or more persons they will take as joint tenants or tenants in common accordingly as they would take in the case of a oonveyance to them in fee simple,. That is, at common law, they would take the leasehold as joint tenants, with the right of survivorship, in the absence of words of sever- ance,82* but in many jurisdictions a tenancy in common in the leasehold would exist by reason of statutory provisions, either abolishing joint tenancy or providing that it shall exist only when such an intention is plainly expressed or clearly apparent.^^^ A. 640, 114 Fed. 14. In Shreve v. receiver slmll manage, as well as Hankinson, 34 N. J. Eq. 413, how- let, the estate with the approbation ever, it was decided that a receiver of the master. See Duffield v. could, without a special order to Bllwes, 11 Beav. 690. that effect, make a lease of a farm 320 "Weeks v. Weeks, 106 N. Y. 626, for one year, the order appointing 13 N. E. 96 ; Alderson, Receivers, 305. the receiver giving him authority to 321 Farmers' Loan & Trust Co. v. l«t the property from time to time. Baton, 51 C. C. A. 640, 114 Fed. 14; It is said in a recent edition of Weeks v. Weeks, 106 N. Y. 626, 13 Daniel's Chancery Practice (7th Ed., N. E. 96; Shreve v. Hankinson, 34 at p. 1443) that a lease may tie made N. J. Eq. 413. for three years or less without the 322 Gibbins v. Howell, 3 Madd. 469. order of the judge, citing an unre- 323 Chicago Deposit Vault Co. v. ported decision of the master of the McNulta, 153 TJ. S. 554, 38 Law. Rolls. Formerly it was provided by Ed. 819. tie 64th order of 1828 that, in every 32*2 Blackst. Comm. 193; 1 Piatt, order directing the appointment of Leases, 537, 540. a receiver of landed estates, there 325 See 1 Tiffany, Real Prop. p. he inserted a direction that such 375. § 24 POSSIBLE SUBJECT OF LEASE. 221 § 24. What may be the subject of a lease. a. Corporeal and incorporeal things. A lease may be made not only of a corporeal real thing, that is, of land or of that which way be so annexed thereto as to constitute a part thereof, but also of an incorporeal real thing, such as a franchise,326 a right as to the use of water-s^T a right of ■vvay,328 or a right of profit in an- other's land.8-8 That is, any such incorporeal thing may be granted for a period of less duration than the interest of the gran- tor. But though a lease may thus be made of an incorporeal thing, it cannot be regarded as creating the relation of landlord and tenant between the lessor and lessee-^^** There is in such case nothing of which tenure can be predicated. A so-called "lease" of "power," whether water, steam, or electric, is, it seems, merely a contract to furnish the power or to allow another to utilize it for a stipulated time.'^i b. Personal chattels. Personal or movable chattels may, it seems, be the subject of a gift or grant for a limited period,^^^ and we not infrequently meet with the expression "lease" in this connection. At the present day, however, whatever it may have been in former times,*'''^ a lease of a chattel is merely a species =26 St. Louis & C. R. Co. V. East sso Swift v. Goodrich, 70 Cal. 103, St. Louis & C. R. Co., 39 111. App. 11 Pac. 561; Smith, Land!. & Ten. 354; Id., 139 111. 401, 28 N. E. 1088; (3d Ed.) 80; 1 Washburn, Real Prop. Walker v. Tipton, 33 Ky. (3 Dana) 3; 310. Hunting v. Hartford St. R. Co., But in Williams v. Ladew, 171 Pa. 73 Conn. 179, 46 Atl. 824; State v. 369, 33 Atl. 329, one to whom a King County, 29 Wash. 359, 69 Pac. lepse of the right to take water from 1106; Pelton v. Deall, 22 Vt. 170, 54 adjoining land is given is apparently Am. Dec. 61., regarded as a tenant, becoming a 327 Williams v. Ladew, 171 Pa. 369, tenant at sufferance if he "holds 33 Atl. 329; Ex parte Miller, 2 Hill over, that is, if he takes the water (N. Y.) 418; Tipping v. Eckersley, 2 after the period named, and being Kay & J. 264; Jordan v. Indlanapo- as such liable for use and occupa- lis Water Co., 159 Ind. 337, 64 N. B. tion. And see authorities post, § g30, 301, to the effect that use and occu- S28 Newmarch v. Brandling, 3 pation lies for the enjoyment of an Swanst. 99; Ledyard v. Morey, 54 incorporal thing. Mich. 77, 19 N. W. 754. '" See post, § 136. 329Sury V. Brown, Latch, 99; In- sss sheppard's Touchstone, 268; habitants of Watertown v. White, Bac. Abr., Leases, A. 13 Mass. 477; Read v. Granberry, 30 s^s See Gray, Perpetuities (2d Ed.) N. C. (8 Ired, Law) 109. § 826. 222 CREATION OF THE RELATION. | 24 of ' ' bailment, " a " contract of hiring, ' ' or, if made gratis, a loan, and it would seem desirable to confine the use of the term "lease" to things of a real character with which it has always been associ- ated. Leases or bailments of chattels, it is evident, do not create the relation of landlord and tenant, and consequently fall outside the scope of this work. Not infrequently in the case of a lease of land, personal chat- tels are included, as when furniture is leased along with a house, or live stock and farming utensils along with a farm. The various decisions in regard to the apportionment of rent in such a ease, and also as to the obligations of the lessee under special stipula- tions as to the return of the chattels, will be hereafter consid- ered.33* c. Part of building. There may be a lease of'merely a part of a building, a "floor" for instance, or an apartment or room. Such a lease, it has been generally decided in this country, does not pass any interest in the soil, and, consequently, upon a destruc- tion of the building or of that part of the building, the whole sub- ject of the lease is destroyed and the liability for rent termin- latesrf^^* Such a view of the operation of a lease of a part of a building seems reasonable and unobjectionable on principle. Though the building is, ordinarily, in legal theory, a part of the land, it is not physically a part of the soil or earth, that is, the building is one part of the land, and the earth or soil, land in its physical sense, is another part, and there is no more objection to leasing separately that part of the land which consists of a part of the building than to leasing that part of the land which cob- sists of the earth or soil, or of a stratum thereof. In England, how^ever, such a view has never been suggested, and there, upon the destruction of a building, an apartment in which has been 334 See post, §§ 169 c, 254, 255. Bloeser, 77 Mo. App. 172; "Winton v. 335 McMillan v. Solomon, 42 Ala. Cornish, 5 Ohio, 477. See post, § 356, 94 Am. Dec. 654; Leiferman v. 182 p (2). Osten, 167 111. 93, 47 N. E. 203, 39 In Leiferman v. Osten, 167 111. 93, U R. A. 156; Kerr v. Merchant's 47 N. B. 20-3, 39 L. R. A. 156, it is Bxch. Co., 3 Bdw. Ch. (N. Y.) 315; decided that a demise of one floor of Rowan v. Kelsey, 4 Abb. Dec. (N. a building passed no interest in the Y.) 125, 2 Keyes, 594; Stockwell v. land under the building and that Hunter, 52 Mass. (11 Mete.) 448, 45 consequently a removal of the build- Am. Dec. 220; Shawmut Nat. Bank ing to another part of the same v. BoS'ton, 118 Mass. 125; Seidel v. lot did not constitute an eviction. § 25 NECESSITY OF .WRITING. 223 leased, the liability for rent is regarded as continuing, upon the theory, presumably, that the lease included an interest in the SOil.336 I 25. Necessity of writing— Statute of frauds. a. The English statute. At common law a lease of land could be made without any writing, though, if for life, livery of seisin was necessary .33" On the other hand, a lease of an incorporeal thing, such as an easement, right of profit, or franchise, was always required to be by deed, that is, by writing under seal, since such things lay "in grant," and a grant necessarily involved the use of a seal.338 The rule allowing oral leases of land was changed by the first section of the statute of frauds,339 which provided that all leases, estates, interests of freehold, or terms of years or any uncertain interest, in, to, or out of lands, tenements or hereditaments, not put in writing and signed by the parties so making or creating the same or their agents thereunto lawfully authorized by writ- ing, shall have the force and effect of leases or estates at will only. But an exception was made, by the second section of the statute, of "leases not exceeding the term of three years from the making thereof, whereupon the rent reserved to the landlord, dur- ing such term, shall amount to two-thirds parts at the least of the full improved value of the thing demised." The fourth section of the statute provides that no action shall be brought upon any contract or sale of lands, tenements or here- ditaments or any interest in or concerning them, unless the agree- ment, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith or some other 336izon V. Gorton, 5 Bing. N. C. 501, sst Litt. § 60; Co. Litt. 9 a, 49 b; IS in effect opposed to such a view, as 2 Piatt, Leases, 1. The only case in is perhaps Marshall v. Schofield, 52 which a deed was necessary was that X,aw J. Q. B. 58. Doe d. Freeland v. of a demise by a corporation aggre- Burt, 1 Term R. 701, is sometimes gate. Co. Litt. 85 a. cited in support of such a view, but sssTottell v. Howell, Noy, 54; It has no bearing whatever on the Somerset v. Fogwell, 5 Barn. & C. question, it deciding merely that a 875; Bird v. Higginson, 2 Adol. & lease of ground was not to be con- E. 696. strued as passing a vault beneath it ssb 29 Car. 2, c. 3, § 1 (A. D. 1677). leased to another person. 224 CREATION OP THE RELATION. § 25. person thereuiito by him lawfiilly authorized. This section also names a number of other classes of contracts with which we are not here concerned, on which, if not in writing, no action can be brought. The effect of these respective sections of the statute is stated by an English writer of high authority^*"* as follows : ' ' The first and second sections appear to enact, that all interests actually created without writing shall be void, unless in the ease of a lease not exceeding three years (at nearly rack rent).**** An actual lease for any given number of years, whether with or without rent, or any interest uncertain in point of duration, must, it should seem, equally fall within the provision of the first section, and cannot be sustained unless it come within the saving in the second section. This, however, of itself would not have prevented all the evils which the act intended to avoid, for although actual estates could not be created, yet still parol agreements might have been entered into respecting the future creation of them. To remedy this mischief, the provision in the fourth section was inserted, which relates not to contracts or sales of land, etc., but to any agreement made upon any contract or sale of lands, etc., and as agreements were more to be dreaded than contracts actually exe- cuted, no exception was inserted after the fourth section, similar to that which follows the first section, and consequently an agree- ment by parol, to create even such an interest as is excepted in the second section, would be merely void." Applying this view to the subject of the present work, a lease comes within the pro- vision of the first section, while an executory contract to make a lease is governed by the fourth section. That this is the proper application of the respective sections has been stated or assumed by other leading writers,***^ and seems to be the necessary con- struction of the language of the statute. The English statute thus distinguishes, as regards the requirement of a writing, between a lease and a contract for a lease, matters which in themselves are clearly distinct.^*^ b. The state statutes.. In this country the English statute of 3*0 Sugden, Vendors & Purebasers Cummins, 33 N. J. Law, 44, per (14th Ed.) 122. Beasley, C. J.; Tillman v. Fuller, IS 341 Browne, Statute of Frauds ( 5th Mich. 113, per Christlancy, J. Ed.) § 5; Dart, Vendors & Purchas- 342 gee post, § 62. ers (6th Ed.) 228. See Birckhead v. §25 NECESSITY OF WRITING. 225 frauds is in force in at least two jurisdictions,**^ -w^hile in five states there are provisions substantially similar to the first sec- tion of that statute.^** In a considerable number of states it is provided in eif eet that no estate for over a term specified, usually one year, shall be created except by writing,**^ such provisions 34S Maryland (see Alexander's British Statutes, p. 508) ; New Mex- ico (see Childers v. Talbott, 4 N. M. 168, 16 Pac. 275; Childers v. Lee, 5 N. IVf. 576, 25 Pac. 781) . In Georgia the first two sections of the English statute were at one time recognized as in force. Presumably, however, they are to be regarded as displaced by the provision hereinafter referred to. See post, note 345. sii Kirby's Dig. St. Arkansas 1904, § 3664; Missouri Rev. St. 1899, § 3414; 2 Gen. St. New Jersey, p. 1602, § 1; Pennsylvania Act March 21, 1772; South Carolina Civ. Code 1902, § 2416. 345 California Civ. Code, § 1091 (An estate in real property, other than an estate at will or for a term not exceeding one year, can be trans- ferred only by operation of law, or by an instrument in writing) . Mills' &jin. St. Colorado 1891, § 2019 (No estate or interest other than leases for not exceeding one year shall be created, granted, assigned or sur- rendered unless by act or operation of law or by deed or conveyance in writing). DeZaware Rev. Code 1893, p. 866 (No demise, except it be by deed, shall be for a longer term than one year). District of Golurnbia Code 1901, § 1116 (Every estate for a greater term than one year at- tempted to be created by parol shall be an estate at sufferance) . Florida Gen. St. 1906, § 2448 (No estate or interest of freehold, or for a term of years for more than two years, or any uncertain interest of, in, or out of, any messuages, lands or heredita- ments, shall be created, made or granted otherwise than by deed in writing). Georgia Code 1895, § 3117 (Contracts creating the relation of landlord and tenant for any time not exceeding one year may be by parol, and if made for a greater time shall have the effect of a tenancy at will). Idaho Civ. Code 1901, § 2400 ( same as Colorado) . Burns' Ann. St. Indiana 1901, § 3335 (Conveyances of lands or of any interests therein, except bona fide leases for a term not exceeding three years, shall be by deed in writing). Kansas Gen. St. 1905, § 3255 (No leases, estates or interests in lands exceeding one year in duration shall be assigned or granted unless by deed or note in writing). Carroll's St. Kentucky 1903, § 490 (No estate of inheritance or freehjold or for a term of more than one year shall be conveyed unless by deed or will). Maine Rev. St. 1903, c. 75, § 13 (No estate to be created greater than tenancy at will except by some writ- ing). Ma,ssachusetts Rev. Laws 1902, c. 127, § 3 (An estate or Inter- est created without writing shall have force and effect of estate at will only). Michigan Comp. Laws 1897, § 9511 (same as Colorado). Minnesota Rev. Laws 1905, § 3487 same as Colorado). Mississippi Code 1906, § 2763 (An estate of in- heritance or freehold, or for a term of more than one year, shall not be conveyed unless the conveyance be declared by writing). Nebraska L. and Ten. 15. 226 CREATION OF THE RELATION. §25 being practically equivalent to the first two sections of the Eng- lish statute, except that they reduce the period for which a lease may be made by parol. These provisions differ considerably in their language, and some of them, at least, cannot be regarded as superior in point of perspicuity to the English statute, however wanting this may be in that respect. With all their faults of ex- pression, however, they are quite readily capable of comprehen- sion as expressly invalidating leases by which estates of greater Comp. St. 1905, § 3636 (same as Colo- rado). Nevada Comp. Laws 1900, § 2694 (same as Colorado). New Hampshire Pub. St. 1901, c. 137, § 12 (Every estate or interest in lands created or conveyed without an in- strument in writing shall be deemed an estate at will only). New York Real Property Law, § 207 (same as Colorado). In Ward v. Hasbrouck, 169 N. Y. 407, 62 N. E. 434, the court apparently lost sight of this section of the Real Property Law, referring to section 224 (post, note 346) as if it had superseded the pro- vision of the former law which cor- responded with the present section 207. North Carolina Revisal 1905, § 976 (All leases and contract for leas- ing land for mining, of whatever dur- ation, and -all other leases and con- tracts for leasing lands exceeding three years from the making thereof, are void if not in writing). North Dakota Rev. Codes 1905, § 4968 (same as California). Ohio Rev. St. 1906, § 4198 (No lease, estate or interest of freehold or term of years, or any uncertain interest in lands, shall be assigned or granted except by deed or note in writing). Bell & C. Ann. Codes Oregon, § 793 (sub- stantially same as Colorado). Rhode Island Gen. Laws 1896, c. 202, § 2 (Every conveyance of land for any term longer than one year shall be void unless made in writing). South Carolina Civ. Code, § 2416 (No parol lease shall give a tenant a right of possession for a longer period than twelve months from the time of entering on the premises). South Dakota Civ. Code 1903, § 938 (same as California). Texas Rev. St. 1895, art. 624 (approximately the same as Mississippi). Utah Comp. Laws 1907, §§ 1974, 2461 (same pro- vision as that of Colorado, twice re- peated). Vermont Pub. St. 1906, § 2582 (Estates or interests in lands, created or conveyed without an in- strument in writing, signed by the grantor or by his attorney, shall have the effect of estates at will only) . Wisconsin Rev. St. 1898, § 2302 (same as Colorado). West Virginia Code 1906, § 3020 (No estate of in- heritance or freehold, or for a term of more than five years, in lands, shall be conveyed unless by deed or will). In Washington it is provided (Bal. Ann. Codes & St. § 4517) that all conveyances of real estate or of any interest therein, and all con- tracts evidencing any incumbrance upon real estate, shall be by deed; while § 4568 declares that leases may be in writing or print, or partly in writing and partly in print, and shall be legal and valid for any term or period not exceeding one year, without acknowledgment, witnesses or seals. § 25 NECESSITY OF WRITING. 227 than the excepted duration are sought to be created, and this is perhaps more than can be said of other forms of statutory provis- ion bearing upon the subject, now to be considered. In a number of states there is a provision to the general effect that an "agreement (or contract) for the leasing of land" for longer than one year is invalid if not in writing, the modes of expression varying to some extent, as in the class of provisions previously referred t'o.^*^ The distinguishing characteristic of this class of enactments is that they speak of an "agreement" or ' ' contract ' ' for leasing rather than of a lease or conveyance. As before stated,^*'' the reference to a lease as an "agreement" or a "contract" has the effect of obscuring the important fact that it / is a conveyance, transferring an estate to the lessee, a fact which is clearly recognized by the first class of statutory provisions above referred to. Properly speaking, the expression an "agree- ment (or contract) for leasing" means an agreement to make a lease, and the fact that these statutory provisions usually invali- date in terms an agreement for leasing "or for the sale of" an interest in land would seem to show that this is the proper con- struction of the language used, an agreement to make a lease and an agreement to sell being evidently both executory contracts, clearly distinguishable from a lease or conveyance in fee, either of which involves an actual transfer of an estate. Thus regarded, the provisions here in question would correspond to the fourth section of the English statute rather than to the first and second, 3i« California Civ. Code, § 1624 § 1237; Utah Comp Laws 1907, § (5); Mills' Ann. St. CoJorodo § 2021; 2463; Wisconsin Rev. St. 1898, § Idaho Civ. Code 1901, § 2739; Iowa 2304; Wyoming Rev. St. 1899, § Code 1897, § 4625 (No evidence ad- 2953. With these provisions may be missible of contract for the creation classed that of Alabama (Code 1907, or transfer of any interest in lands, | 4289), invalidating every contract except leases for a term not exceed- for the sale of lands, tenements or ing one year, unless in writing) ; hereditaments, or of any interest Michigan Comp. Laws 1897, § 9511; therein, except leases for a term not Minnesota Rev. Laws 1905, § 3488; longer than one year, unless the con- Montana Rev. Codes 1907, § 5017 tract or a memorandum thereof Is (5) iNelraska Comp. St. 1905, § in writing, signed by the party to be 3638; New York Real Prop. Law, § charged, or unless the purchase 224; North Dakota Rev. Codes fc05, money or a portion thereof be paid § 5332 (5) ; Oklahoma St. 1903, § 780 and the purchaser put in possession. (5) ; Bell. & C. Ann. Codes Oregon § s" See ante, § 16. 797; South Dakota Civ. Code 1903, 228 CREATION OP THE RELATION. 25 and that this was the view of the persons who prepared the Re- vised Statutes of New York, from which the provision has been adopted in other states, appears from their own statement.s*^ g^ far as regards that state, and other states in which**^ such a pro- vision is found in addition to a provision of the character before referred to, expressly invalidating oral leases for over one year, the provision is, if regarded as referring to a lease, as distinct from a contract to make a lease, utterly superfluous. There is still a third form of statutory enactment bearing upon the subject of parol leases which is found in a number of states, to the effect that "no action shall be brought upon" a lease (or con- tract for leasing) for a longer period than one year,^*^'^ a form 348 This section (now Ne'w York Real Prop. Law, § 224) was origin- ally section eight of the Revised Statutes, pt. 2, c. 7, tit. 1, while the provision previously referred to (su- pra, note 345, Real Prop. Law, § 207) was section six of the same title. The note by the revisers to section eight (see 3 N. Y. Rev. St. [2d Bd.J p. 655) states that it Is "founded on the eleventh section of the present act," by which is meant the eleventh section of the act of Feb! 26, 1787, which is in the exact language of the fourth section of the English statute. The revisers' note to section six states that it "is intended as a substitute for the ninth, tenth and a part of the twelfth sections of the present statute," that is, of the act of 1787, which sections are identical with the first three sections and the seventh section of the English stat- ute. 349 California, Colorado, Jdaho, Michigan, Nebraska, New York, North Dakota, Oregon, South Da- kota, Utah, Wisconsin. 3i98L Arizona Rev. St. 1901, § 2696 (No action shall be brought upon any contract for the sale of real estate or the lease thereof for a longer term than one year, unless the promise or agreement is in writ- ing, signed by the part to be charged). Kirby's Dig. St. Arkan- sas 1904, § 3654, 5 (no action shall be brought to charge any person upon any lease for a longer term than one year, unless the agreement or contract be in writing). Con- necticut Gen. St. 1902, § 1089 (No civil action shall be maintained on any agreement for the sale of real estate, or any interest in or concern- ing it, if not in writing. But this section not to apply to parol agree- ments for hiring or leasing real estate, or any interest therein, for one year or less, in pursuance of which the leased premises are actu- ally occupied during the term). Florida Gen. St. 1906, § 2517 (No action shall be brought whereby to charge the defendant upon any con- tract for lease for a period longer than one year, unless in writing). Kurd's Rev. minois St. 1899, c. 59, § 2 (No action shall be brought to charge any person upon any contract for the sale of lands, tenements or hereditaments, or any interest in or concerning them, for a longer term than one year, if not in writing). §25 NECESSITY OP WRITING. 229 of provision which has the defect of regarding a lease purely as a contract rather than as primarily a conveyance. Such a provision might mean that no action can be brought upon any covenant of the lease, or upon any covenant implied therefrom or from the relation of landlord and tenant created thereby, "or to obtain pos- session on the strength of the lease,35o but regarded as an intended substitute for the language of the first section of the English stat- ute, an enactment so v^orded is evidently most defective in not providing for the simple case of one already in possession under such a parol lease who merely desires to retain possession until the end of his term. The statutory provision precludes him from himself bringing suit on the strength of the lease, but it in no way precludes him from defending his possession on the strength thereof.^^^ So far as such a provision may be found in any juris- diction in company with a provision of the first class above men- tioned, expressly invalidating an oral lease,^^^ it seems entirely Kentiicky St. 1903, § 470 (No action shall be brought to charge any per- son upon any contract for the sale of real estate, or any lease thereof for a longer term than one year, if not in writing). Rhode Island Gen. Laws 1896, c. 233, § 6 (No action shall be brought to charge any per- son upon any contract for the sale of lands, tenements and hereditaments, or the making of any lease thereof for a longer term than one year). Shannon's Code Tennessee 3142 (No action shall be brought upon any contract for the sale of lands, tenements or hereditaments, or the making of any lease thereof for a longer term than one year, if not in writing). Virginia Code 1904, § 2840 (No action shall be brought upon any contract for the sale of real estate, or for the lease thereof for more than one year, unless evi- denced by writing). West Virginia Code 1899, c. 98, § 1 (same as Vir- ginia). 350 strictly speaking, no action can he brought on a lease, though it may be brought on a covenant in the instrument in which the lease is incorporated, that is a "covenant of the lease," or on an oral contract made in connection with a convey- ance by way of lease, or it may be brought to assert a right of pos- session given by the lease. 351 In Roberts v. Tennell, 19 Ky. (3 T. B. Mon.> 247, it is said that aa the statute merely declares that no action will lie on a verbal lease, and does not declare such a lease void, any use of it may be made by either party, except to maintain an action on it. Gud'gell v. Duvall, 27 Ky. (4: J. J. MarSh.) 229, is to the same effect. But in Simmons v. New Britain Trust Co., 80 Conn. 263, 67 Atl. 883, it is said, apparently with reference to such a provision, that "a contract upon which the legisla- ture says that no action may be maintained cannot be used to defeat a demand otherwise legal and just." 352 In Arkansas, Florida, Kentucky and Rhode Island, both provisions are found. 230 CREATION OF THE RELATION. | 25 superfluous, unless it be construed as referring merely to an execu- tory contract to make a lease, in accordance with the construction placed upon the fourth section of the English statute. Such a limited effect has not, however, been given to it by any judicial decision,353 and it is no doubt usually regarded as applying to actual leases. It represents, it seems, a crude attempt to make the language of the fourth section of the statute of frauds do the work of the first, so far as this is concerned with leases as distinct from other species of conveyance. Provisions of this third class usually adopt the language of the fourth section of the English statute in requiring the "lease" or "contract of lease" to be ei- ther itself in writing, or evidenced by some memorandum "signed by the person to be charged," and they also ordinarily form part of an enactment which in terms applies to the various classes of contracts named in such fourth section. There is probably in every state a provision corresponding to that of the fourth section of the English statute, providing that no action shall be brought upon any agreement which is not to be performed within the space of one year of the making thereof, unless the agreement or a memorandum thereof be in writing, signed by the person to be charged. In a number of jurisdictions the courts have regarded this provision as applicable to the case of a lease, so as to invalidate any lease which will not terminate within a year from its making, as for instance a lease for a year to begin in futuro.^^* In other jurisdictions a contrary view has 353 In Morehead v. Watkyns, 44 Weeden, 108 Ala. 252, 9 So. 318; Ky. (5 B. Mon.) 228, in speaking of Wickson v. Monarch Cycle Mfg. Co., the statute prohibiting an action on 128 Cal. 156, 60 Pac. 764; Landt v. an oral lease, and of that invalidat- Schneider, 31 Mont. 15, 77 Pac. 307; ing an oral lease for a term greater At-wood v. Norton, 31 Ga. 507; Olt than a certain number of years, it v. Lohnas, 19 111. 576; Wheeler v. is said that the first was intended Frankenthal, 78 111. 124; "Wolf v. to apply to "executory contracts," Dozer, 22 Kan. 436; Greenwood v. and the other to "executed con- Strother, 91 Ky. 482, 16 S. "W. 138; tracts," but that the courts have Thomas v. McManus, 23 Ky. Law indiscriminately applied the first Rep. 837, 64 S. W. 446; Delano v. to both classes of cases. Montague, 58 Mass. (4 Cush.) 42; 35* Parker's Adm'r v. Hollis, 50 Jellett v. Rhode, 43 Minn. 166, 45 Ala. 411; Crommelin v. Thiess, 31 N. W. 13, 7 L. R. A. 671; Brosius v. Ala. 412, 70 Am. Dec. 499; Bain v. Evans, 90 Minn. 521, 97 N. W. 373; McDonald, 111 Ala. 269, 20 So. 77; Briar v. Robertson, 19 Mo. App. 66; A. G. Rhodes Furniture Co. v. Beiler v. Devoll, 40 Mo. App. 251; § 25 NECESSITY OF WRITING. 231 been taken to the effect that this provision has no application to leases.sss That the latter -view is correct seems to the present writer beyond any question. As we have before remarked, a lease is primarily a conveyance and not an executory agreement, and, so regarded, such expressions as "to be performed" and "not to be performed" are inapplicable thereto, nor can an action be brought upon a conveyance of any sort. The lessor may, indeed, at the time of making the verbal lease, stipulate to do something, to make repairs, for instance, but such a stipulation would but sel- dom be one that might not be performed within a year, and, to be within this clause of the statute, the agreement, it is conceded, must contemplate performance after the year.^s^ And even were a stipulation by the lessor within this clause, the fact that such a stipulation is unenforceible would be no reason for regarding the demise itself as invalid. And so as regards stipulations by the lessee made in consideration of the lease, as for instance to pay rent during the term thereof, conceding that these may be within this clause of the statute, this would furnish no reason for regard- ing the oral demise as insufficient to vest a term in the lease. Even assuming that there are, in the particular ease, stipulations to be performed by the lessor as well as by the lessee, and assuming further that the unenforcibility of the lessee's stipulations would invalidate the stipulations by the lessor, on the theory that an oral agreement within the statute -is insufficient as a considera- tion to support an agreement by the other party ,^^^ this could not well affect the validity of the oral lease as a conveyance. In other Cook V. Redman, 45 Mo. App. 397; Ind. 409; Whiting v. Ohlert, 52 Mich. Butts V. Fox, 96 Mo. App. 437, 70 S. 462, 18 N. W. 219, 50 Am. Rep. 265; W. 515 (semble); White v. Holland, Young v. Dake, 5 N. Y. (1 Seld.) 17 Or. 3, 3 Pac. 573; Wheeler v. 463, 55 Am. Dec. 356; Ward v. Has- Cowan, 25 Me. 283 (semble); James brouck, 169 N. Y. 407, 62 N. E. 434; V. Smith, a Ind. T. 447, 58 S. W. McCroy v. Toney, 66 Miss. 233, 5 So. 714; Robb v. San Antonio St. R. Co., 392, 2 L. R. A. 847; Hayes v. Arring- 82 Tex. 392, 18 S. W. 707 (semble); ton, 108 Tenn. 494, 68 S. W. 44; Mathews v. Carlton, 189 Mass. 285, Richards v. Redelsheimer, 36 Wash. 75 N. E. 637 (semble). 325, 78 Pac. 934. 355Higgins V. Gager, 65 Ark. 604, 356 Browne, Statute of Frauds, c. 47 S. W. 848; Sears v. Smith, 3 Colo. 13. 287; Sobey v. Brisbee, 20 Iowa, 105; as? See 29 Am. & Bng. Enc. Law Stem V. Nysim^er, 69 Iowa, 512, 29 (2d Ed.) 821. N. W. 433; Railsback v. Walke, 81 232 CREATION OP THE RELATION. § 25 words the effectiveness of a conveyance as creating rights in rem in favor of the grantee cannot be affected by the fact that at the time of making the conveyance an ineffectual attempt was made to create in addition a right or rights in personam.^^^ It may furthermore be remarked that if this provision of the statute, re- quiring contracts not to be performed within a year, to be evi- denced by writing, is to be regarded as applicable so as to inval- idate a lease which may extend more than a year from the making thereof, the exception, in the second section of the English statute, of leases for not over three years, is rendered utterly futile, as ap- plied to a lease for over one year. c. "Leases" within the statutes. There have been a num- ber of decisions as to whether, under the particular circumstances of the case, there was a lease of land calling for the application of the statute. The question of what constitutes a lease for this purpose is to be determined by the same considerations as apply in other cases. So an agreement for the cultivation of land on shares is not within the provision of the statute directed against oral leases, if it creates the relation of employer and employe mere- ly^359 -vyhile it is within such provision if it creates the relation of landlord and tenant. ^^° So, since a contract for board and lodg- ing does not create the relation of tenancy, ^°^ it is valid though oral,3®2 go far as the statute in regard to leases is concerned. The case is otherwise, however, if the contract is for the exclusive oc- cupation of particular rooms in a building, it being then in legal effect a lease.^^^ The statute obviously applies to a lease renew- 368 In Higgins v. Gager, 65 Ark. Unglish v. Marvin, 128 N. Y. 3»(>, 28 604, 47 S. W. 848, however, it was N. B. 634. decided that since an oral stipula- aeo Seotten v. Brown, 4 Har. (Del.)' tion by the lessee not to engage in 324; Coan v. Mole, 39 Mich. 454; a competing trade during the term Jackson v. Brownell, 1 Johns. (N. of the lease was invalid, as an agree- y ) 267 3 Am. Dec. 326. 361 See ante, § 8. 362 White T. Maynard, 111 Mass. ment not to be performed within a year, "the whole contract must fail." The action was presumably for rent. 359Hlmesworth v. Edwards, 5 Har. 250, 15 Am. Dec. 28; Wilson v. Mar-. (Del.) 376; Unglish v. Marvin, 128 tin, 1 Denio (N. Y.) 602; Wright v. N. Y. 380, 28 N. B. 634. See ante, § Stavert, 2 Bl. & Bl. 721. 20. But it may be within the pro- ^^^ See Edge v. Strafford, 1 Cromp. vision as to contracts not to be per- & J. 391; Inman v. Stamp, 1 Starkie, formed within one year. See e. g., 12, as distinguished in Wright v. § 25 NECESSITY OP WRITING. 233 ing or extending a previous lease.^^*'' A license to enter upon land for the purpose of doing certain specified acts, not giving any right of exclusive possession, is to De distinguished from a lease in this connection as in others,3o* and is valid though merely oral, but is revocable at the will of the owner of the land, unless, in some states, the licensee has done some acts on the strength of the license.s«5 An agreement by a lessee, during the lease, to pay a sum period- ically, in addition to the rent originally reserved, does not involve the creation of a new tenancy, even though such increased sum be termed rent, and it is not within the statute.^es It is almost unnecessary to say that the statute applies to a sub- lease as well as to a lease by one not himself holding under a lease.*^'^ d. Short time leases. The second section of the English stat- ute of frauds, as above stated, excepts from the requirements of a writing "all leases not exceeding the term of three years from the making thereof, whereupon the rent reserved to the landlord, dur- ing such term, shall amount to two-thirds parts at the least of the full improved value of the thing demised." Such an exception presumably exists in those few jurisdictions in which the first section of the English statute is recognized as in force without re-enactment.^®* Of those jurisdictions which have re-enacted the first section of the English statute, one retains the exception in the language of the second section of the English statute except that "one year" is substituted for "three years, "^®9 ^nd two re- tain the exception of a lease "not exceeding three years from the Stavert, 2 El. & El. 721; Porter v. tague v. Bacharacli, 181 Mass. 256, Merrill, 124 Mass. 534. 63 N. E. 435. 363a Williams v. Apothecaries' see Hoby v. Roebuck, 7 Taunt. 157; Hall Co., SO Conn. 503, 69 Atl. 12. Donellan v. Read, 3 Barn. & Adol. 364 See ante, § 7. 899. See § 173 f (2). A different 385 Browne, Statute of Frauds, § 21 view seems to be taken in Walsh v. etseq.; ISugden, Vendors & Purchas- Oolclough (C. C. A.) 56 Fed. 778, ers (14th Ed.) 124; 1 Tiffany, Real but there the case was decided to Prop. 680; Johnson v. Wilkinson, 139 have been taken out of the operation Mass. 3, 29 N. E. 62, 52 Am. Rep. 698. of the statute by part performance. But an agreement in pursuance of S67 Fratcher v. Smith, 104 Mich. which one occupies as licensee may 537, 62 N. W. 832. be unenforcible, as being one not to s^s See ante, § 24 b. be performed within a year. De Mon- sea s. C. Civ. Code, § 2416. 234 CREATION OF THE RELATION. § 25 making thereof " without the qualifying language in regard to the amount of rent reserved,^ ^° while in two there is no exception, in express terms, of a short time lease.^''^ The theory of the qualifying language as to the amount of rent reserved seems to be that unless the rent reserved approximates the rental value of the property, the value of a term for three years or less would be so great as to create a temptation to perjury, as much as in the case of a longer term on which a greater rent is reserved.3'^2 That "two-thirds of the value of the land" means two-thirds of the rental value has been judicially reeognized.*'^ The statutes which do not follow the language of the first sec- tion of the English statute ordinarily except from their operation leases for one year only.*^* In a few states no exception is made of short time leases.^'''' The exception in the English statute, as in the state statutes modelled thereon, applies in terms to leases not exceeding a term of a certain length "from the making" of the lease, and conse- quently require the period to be computed from that time, without reference to the duration of the term itself. Under such a statute an oral lease for less than the excepted period is void if it is to be- gin so far in the future that it Mdll not terminate till more than such period after its execution,^''® while if it is to terminate within such expected period it is perfectly valid, though it is to begin in the future.^^'^ Ordinarily, however, the clause of the statute 370 2 Gen. St. N. J. p. 1602, § 1; 375 in Maine, Massachusetts, New Pennsylvania Act March 21, 1772. Hampshire, Ohio, Vermont, Washlng- In New Jersey, formerly, the quail- ton. As to this last state, see Rich- fication as to the rent reserved ex- ards v. Redershelmer, 36 Wash. 325. isted. Birckhead v. Cummins, 33 N. 78 Pac. 934. J. Law, 44; Gano v. Vanderveer, 34 370 Rawlins v. Turner, 1 Ld. Raym. N. J. Law, 293. 736; Whiting v. Pittsburgh Opera 371 Kirhy's Dig. St. Ark. 1904, 5 House Co., 88 Pa. 100; Jennings v. 3664; Mo. Rev. St. 1899, § 3414. McComb, 112 Pa. 518, 4 Atl. 812; 372 Browne, Statute of Frauds, § Wheeler v. Conrad, 6 Phlla. (Pa.) 32. 209, 24 Leg. Int. 61; Birckhead v. 373 Childers v. Talbott, 4 N. M. 168, Cummins, 33 N. J. Law, 44, 51. 16 Pac. 275; Birckhead v. Cummins, 377 Ryiey v. Hicks, 1 Strange, 651; 33 N. J. Law, 44. And see Cody v. Union Banking Co. v. Glttings, 45 Quarterman, 12 Ga. 386, in Which Md. 181; Birckhead v. Cummins, 33 this provision of the English stat- N. J. Law, 44; Hayes v. Arrington, ute is referred to. 108 Tenn. 494, 68 S. W. 44 ; Brown v.' 374 See references ante, § 25 b. Kayser, 60 Wis. 1, 18 N. W. 523. §25 NECESSITY OF WRITING. 235 which provides that it shall not apply to leases for a term of less than a certain period does not state from what time this period is to be computed. Such a statute is regarded as intended merely to limit the length of the term which may be orally created, mak- ing the statutory period computable, not from the date of the making of the lease but from the date of the beginning of the term. Thus, for instance, under a statute excepting leases for a term of one year or less, a lease for one year, to commence in futuro, has been regarded as perfectly valid.^''^ It is asserted in an English case *^® that an oral lease which may, by its terms, not endure beyond the excepted period, is valid, though it may endure beyoad that period, and there are decisions in three states in this country to that effect.^^" Elsewhere, how- ever, it has been decided that a lease for a period greater than that named in the exception is not brought within the exception 3T8 Young V. Dake, 5 N. Y. (1 Seld.) 463, 55 Am. Dec. 356; Ward v. Has- broiick, 169 N. Y. 407, 62 N. B. 434; "Whiting V. Ohlert, 52 Mich. 462, 18 N. W. 219, 50 Am. Rep. 265; Stein- inger v. "Williams, 63 Ga. 475 (sem- ble) ; Sobey v. Brisbey, 20 Iowa, 105; Jones V. Marcy, 49 Iowa, 188; Hig- gins V. Gager, 65 Ark. 604, 47 S. "W. 848; Bateman v. Maddox, 86 Tex. 546, 26 S. W. 51; Sears v Smith, 3 Colo. 287; McCroy v. Toney, 66 Miss. 233, 5i So. 392, 2 L. R. A. 847. A lease for a year, to commence in futuro, is not a lease for more than a year because it effects an immediate surrender of a present tenancy "by operation of law." (Na- than V. Stern, 13 Daly (N. Y.) 390) (see post, § 190 b), nor because the lessee is allowed to take Immediate possession. Herrmann v. Heyde- man, 36 Misc. 778, 74 N. Y. Supp. 862. 379 Ex parte Voisey, 21 Ch. Div. 442. 380 In Chaffe v. Benoit, 60 Miss. 34, it was decided that an oral lease "for the crop season of 1880," which might or might not be for the period ex- cepted in the statute, was valid. Citing Browne, Statute of Frauds, § 273 et seq., where, however, the effect of the clause of the fourth sec- tion requiring a contract not to be performed within a year to be in writing was alone in question. In Raynor v. Drew, 72 Cal. 307, it was decided that a lease until such time as the lessor should pay a certain sum to the lessee was not "an agree- ment for the leasing of land for a longer period than one year, within the statute." In Hintze v. Krabben- schmidt (Tex. Civ. App.) 44 S. W. 38, and Burden v. Lucas, 19 Ky. Law Kep. 1581, 44 S. "W. 86, it was de- cided that a lease not necessarily extending beyond a year need not be in writing, apparently on the ground that a contract which may be per- formed within a year is not within the clause as to contracts not to be performed within a year. 236 CREATION OF THE RELATION. § 25 by the existence of an option in tlie lessor,^®i or in the lessee,^^^ to terminate it within that period. The former view would seem to furnish an easy mode of avoiding the operation of the statute by the insertion of a special limitation terminating the lease with- in the excepted time upon the happening of some unlikely contin- gency. In this country, furthermore, it has been decided that a lease for less than the excepted period is within the statute, and so invalid when oral, if there is a covenant for renewal at the option of the lessee,38s while there is an English decision to the con- trary .^s* So, while there are decisions that a lease for a period less than that excepted in the statute is within the statute if there is a provision for extension*^** beyond that periodj^^*" there is at least one decision that in such case the statute does not apply .^^ic In accordance, it appears, with the former view, are decisions that the statute cannot be avoided by naming in the lease two terms, each for less than the excepted period, one to follow upon the other.385 There is a decision to the effect that though the term named in the lease was merely a year, and consequently was within the ex- ception in the statute, a provision that the lessee should have the right, after the end of the term, to enter and reap the crop, in- volved an attempt to create an interest in land extending over a year, and that both the lease and such special provision were void.386 It might, it is conceived, be questioned whether such per- 381 Evans v. Winona Lumber Co., 384 Hand v. Hall, 2 Exch. Div. 355. SO Minn. 515, 16 N. "W. 404. 384a See post, § 218. 382 Hand v. Osgood, 107 Mich. 55, 384b Hand v. Osgood, 107 Mich. 55, 64 N. W. 867, 30 L. R. A. 379, 61 Am. 64 N. W. 867, 30 L. R. A. 379, 61 St. Rep. 312 (Lease for year, with Am. St. Rep. 312; Donovan v. Schoen- right of extension); Donovan v. hoefen Bre-w. Co., 92 Mo. App. 341; Schoenhoefen Brew. Co., 92 Mo. Bateman v. Maddox, 86 Tex. 546, 2S App. 341 (ditto); Bateman v. Mad- S. W. 51. dox, 86 Tex. 546, 26 S. W. 51 (ditto). 384c Ward v. Hasbrouck, 169 N. Y. See post, §§ 218, 219. 407, 62 N. E. 434. 3S3 Schmitz v. Lauferty, 29 Ind. ssb Carling v. Purcell, 19 N. Y. 400; Williams v. Mershon, 57 N. J. Supp. 183; Holzderher v. Forrestal, Law, 242, 30 Atl. 619 (semble) ; 13 Daly (N. Y.) 34. Rosen v. Rose, 13 Misc. 565, 34 N. sso Carney v. Mosher, 97 Mich. 554, Y. Supp. 467; Hess v. Martin, 36 56 N. W. 935. Misc. 541, 73 N. Y. Supp. 946. But In Reeder v. Sayre, 70 N. Y. 180, as to New York, see Ward v. Has- 26 Am. Rep. 567, is said by Folger, brouck, 169 N. Y. 407, 62 N. E. 434. J. : "It is admitted by counsel argu- § 25 NECESSITY OP WRITING. 237 mission to enter for a limited purpose constitutes an interest in land, rather than a mere license.**^ The decisions are to the effect that a lease from year to year is not within the statute and is valid though created orally .^^s This seems to accord with the view that a lease is not within the stat- ute if it may terminate within the excepted period, though it may possibly continue for a longer time. In those few states where the statute contains no exception of a short time lease, it seems that an oral lease expressed to be from year to year would be within the statute. In an English case it is said that the effect of the statute of frauds, so far as it applies to parol leases not exceeding three years from the making, "is this, that the leases are valid, and that what- ever remedy can be had upon them, in their character of leases, may be resorted to ; but they do not confer the right, to sue the lessee for damages for not taking possession, "^89 and in that case it was decided, in apparent conformity with a previous decision,^^* that no action would lie against the lessee under such a lease for not taking possession.^^i In view of the fact that a lessee is ordi- narily under no obligation to take possession, provided he pays the stipulated rent,392 {^ jg difficult to understand the assertion cndo, in Wigglesworth v. Dallison, regarded as extending the tenancy 1 Doug. 201, that when the usual itself. Beavan v. Delahay, 1 H. Bl. crop of the country is such that 5; Knight v. Benett, 3 Bing. 364; it cannot come to maturity in one Griffiths v. Puleston, 13 Mees. & W. year, a right to hold over after the 358; Boraston v. Green, 16 Bast, 81. end of the term, in a parol demise, sss Browne, Statute of Frauds, § may be raised by implication. But 35; Legg v. Strudwick. 2 Salk. 414; no authority is cited; nor does it" Birch v. Wright, 1 Term R. 378; seem consistent with a statute which Swan v. Clark, 80 Ind. 57; Wessells declares that no estate or interest in v. Rodifer, 30 Ky. Law Rep. 51, 97 land, save a lease for a term not S. W. 341; Brown v. Kayser, 60 Wis. exceeding one year shall be created 1, 18 N. W. 523. by parol." The admission of counsel 389 Edge v. Strafford, 1 Cromp. & referred to was, more correctly, that J. 391, 1 Tyrw. 295, per Bayley, B. where the usual crop of the country sso Inman v. Stamp, 1 Starkie, 12 ; cannot come to maturity in a year, Selwyn's Nisi Prius (13th Ed.) 859. a custom by which the tenant is son They are cited, with approval, allowed to hold over is valid. " as so holding. In Union Banking Co. 387 But in England a custom al- v. Gittings, 45 Md. 181; Childers v. lowing the tenant to hold over for Talbott, 4 N. M. 168, 16 Pac. 275. the purpose of gathering the crop is 392 gee post, § 122. 238 CREATION OF THE RELATION. § 25 that he is not liable in damages for not taking possession under an oral lease. The decision is stated to be based on the fourth section of the statute of frauds and the idea of the court is ap- parently that, until entry by the lessee, what is in terms a lease is a mere contract for a lease, and is consequently a contract for an interest in land within such section.^^* This would involve an ex- tension of the view, hereafter referred to, that before entry the lessee has no estate,^^* and is evidently not in accord with a later decision to the effect that before entry the lessee has a right in rem as distinguished from a mere contractual right.*^^ It is difficult, in any case, it would seem, to infer a contract by a lessee to take possession from his mere acceptance of a lease, and it has been suggested that the cases referred to merely decide that an express agreement by a lessee to take actual possession is within the fourth section.396 e. SuflRciency of writing. Apart from the question of the necessity of signing, to be considered elsewhere,^^'' the question of the sufficiency of the -wanting has been but rarely considered judi- cially. That the writing must describe the premises seems clear, and it has accordingly been decided that an instrument merely referring to the premises "as I described them" was insufficient.^^* It has also been decided that a letter to the effect that if the ad- dressee would move on the writer 's farm he might have it for five years, and perhaps longer, was insufficient as a lease for years as not stating the terms on which the farm was to be leased.^^^ 393 Such a construction of the decl- authority for the view that no action sions referred to is apparently adopt- would lie in favor of the lessee ed In the subsequent case of Bolton against the lessor to obtain posses- V. Tomlin, 5 Adol. & E. 856. sion of the premises. »94 See post, § 37. 3" See post, § 27. Si's Gillard v. Cheshire Lines Com- sas Jarboe v. Mulry, 49 N. Y. Super, mittee, 32 Wkly. Rep. 943. See post, Ct. (17 Jones & S.) 525. note 679. S99 Cunningham v. Roush, 157 Mo. 39sBirckhead v. Cummins, 33 N. .^36, 57 S. W. 769. It does not J. Law, 44, where it was decided clearly appear what is meant by the that an action would lie, in the case statement that the writing did not of such a short-time parol lease, for state the "terms" of the lease. If by the rent reserved, although the that is meant that it did not name lessee had not taken possession. In any rent, it may be remarked that Huffman v. Starks, 31 Ind. 474, the a lease is perfectly valid though no court refused to follow these Eng- rent is reserved. The writing in lish cases, assuming them to be Question could not operate as a § 25 NECESSITY OF WRITING. 239 f. Right to assert the statute. It has been decided that the benefit of the fourth section of the English statute of frauds, as affecting only the remedy on the contract, may be waived by the party "to be charged," and that a third person has no right to deny that the contract is binding upon such party, in order thereby to avoid his own obligations growing out of the existence of the contract.*"" The courts have occasionally undertaken to apply this rule to the case of a "contract of lease," so-called, with the result of holding that, if the lessor himself failed to assert the invalidity of the lease, neither the transferee of the reversion,*"! nor a prior lessee, whose term had expired but who was seeking to retain possession,*"^ nor one to whom the lessee had mortgaged the crop,*"^ could do so. On the other hand it has been asserted that a statute requiring a lease to be in writing, hav- ing to do with the creation of rights in rem, should be available to third persons as well as to the parties to the lease.*"* So far as the decisions first referred to are based on the theory that a lease is a contract, and that, since third persons cannot as- sert the invalidity of an oral contract as being within the statute of frauds, they cannot assert the invalidity of an oral lease, they are, it is submitted, erroneous. The grantee of land can always, it is conceived, assert that a previous conveyance in fee simple by his grantor to another person was invalid as against him because not in writing, and he should, it is conceived, have the same right as regards a previous conveyance for years. The transferee of the lessor has property rights in the land, and has a right to show the invalidity of any asserted incumbrance thereon. Whether, lease for a term of years because it took possession was held to be pre- named no certain term, and also, it eluded from asserting the invalidity would seem, because it was evidently of the lease as against one claiming of a merely tentative character, a under a mortgage on the crops made mere ofCer in fact, not intended as a by the lessee before he took posses- lease, slon. 400 Browne, Stat, of Frauds, § 135. *04 Emery v. Boston Terminal Co., «i Shakespeare V. Alba, 76 Ala. 351. 178 Mass. 172, 59 N. E. 763, 86 Am. 402Boyce v. Graham, 91 Ind. 420. St. Rep. 473, per Holmes, C. J. Contra, Best v. Davis, 44 111. App. That a subsequent lessee, as being 624. in privity with the lessor, can as- 403 Grisham v. Lutrlc, 76 Miss. 444, sort the invalidity of a prior lease 24 So. 169, where one claiming under to another because within the stat- a mortgage on crops made by a ute, see Best v. Davis, 44 111. App. lessee of the land after the latter 624. 240 CREATION OP THE RELATION. § 25 however, a person other than the lessor, if not in the position of a subsequent transferee of the lessor, should be allowed to question the validity of the lease because not in writing, as required by the statute, would seem to be doubtful. Though the lessee cannot claim any rights under the terms of the lease itself, he is, it is conceived, even before taking possession, at least a lessee at will,4"5 and as sucii has a right to the possession as against any person other than the lessor or one claiming under him. On this view the decision, above referred to, that a tenant wrongfully hold- ing over could not, as against one claiming under a subsequent oral lease made by the same landlord, assert the invalidity of the lease, was rightly decided. Though the lessee was not entitled to possession as a lessee for years under the lease, he was so en- titled as a lessee at will, the mere making of the lease being equiv- alent to a grant of permission to take possession.*"® It has been decided that the fact that the lease under which the plaintiff claims is within the statute of frauds is available as a de- fense only if specially pleaded,***'' unless this fact appears upon the face of the complaint.*"® This is the rule generally recognized in the case of an action on a contract within the fourth section of the English statute and the local equivalents thereof in the dif- ferent states,*''^ but it seems questionable whether such a rule *»s See ante, §13a(3). no action shall be brought on a "con- 406 The decision referred to in tract for the lease of real estate if note 403, supra (Grisham v. Lutric, not in writing," hut the same viewt 76 Miss. 444, 24 So. 163), would not would presumably be taken when' harmonize with this theory, it be- fhe statute in terms invalidates an ing apparently based on the view oral lease; the purpose of the intro- that a lessee named in an oral lease duction of the evidence being to within the statute does not become show what rent could have been a lessee at will till he takes pos- obtained rather than that such rent session. was actually agreed upon. The fact that a lease is oral does *°^ Shakespeare v. Alba, 76 Ala. not, it has been decided, render it 351; Geneva Mineral Springs Co. v. inadmissible, in favor of the lessor Coursey, 45 App. Div. 268, 61 N. Y. as against a building contractor, to Supp. 98. show the amount of rents lost by the ^"^ Carling v. Purcell, 19 N. Y. latter's failure to complete the build- Supp. 183; Robb v. San Antonio St. ing. Burruss v. Hines, 94 Va. 413, R. Co., 82 Tex. 392; 18 S. W. 707, 24 26 S. E. 875. The decision is in L. R. A. 183. terms based on the language of the los Browne, Stat, of Frauds, c. 20. statute, which provides merely that This chapter, it will be noticed. § 25 NECESSITY OP WRITING. 2M. should be applied in a possessory action in which either the plain- tiff or defendant claims under an unwritten lease. The case would seem to be similar to that of any other action of ejectment in which either party is allowed to show defects in his. opponent's title under general alleg'ations. g. Effect of noncompliance with the statute — (1) Resixltinf tenancy at will or periodic tenancy. The first section of the Eng- lish statute of frauds provides that leases or interests created otherwise than in accordance with its requirements shall "have the force and effect of leases or estates at will only. ' ' In several states in this country, likewise, it is provided in effect that an oral lease within the prohibition of the statute shall create a tenancy at will."" As has been previously shown, a tenancy at will ordinar- ily becomes, by the payment of a periodic rent, a periodic ten- ancy,*^ ^ and this doctrine has been applied, in jurisdictions in which there is such a provision as to the effect of a parol lease, to a tenancy at will resulting from the making of such a lease.'*^^ In Maine and Massachusetts, however, it is considered that, in view of the provision of the statute that an oral lease shall create a tenancy at will only, taken in connection with the absence of any exception in favor of short time leases, the tenancy at will cannot be converted into a tenancy from year to year or other periodic is in "Part IV." of the work, which c. 137, § 12; Pennsylvania Act March begins at chapter 8 and treats 21, 1772; South Carolina Civ. Code of "Contracts" as distinguished from 1902, § 2650; Vermont St. 1894, § "The Creation and Transfer of Es- 2218. In the District of Columbia It tates in Land," which is covered by is provided (Code 1901, § 1116) that Part I (chapters 1-5). The subject such a lease shall create a "tenancy of "leases" is treated exclusively in at sufferance." Part I., and consequently the chap- *ii See ante, § 14 b (2) (a). ters in the latter part of the work 412 Dumn v. Rothermel, 112 Pa. 272, are evidently not Intended to apply 3 Atl. 800; Walter v. Transue, 17 thereto. In citing the book, courts Pa. Super. Ct. 94; Hellams v. Patton, frequently lose sight of the division 44 S. C. 454, 22 S. E. 608; Matthews into parts. v. Hipp, 66 S. C. 162, 44 S. B. 577; 4i»Kirby'a Dig. St. Arfcorasas, 1904, Barlow, v. . Wainwright, 22 Vt. 88, § 3664; Georgia Code 1895, § 3117; 53 Am. Dec. 79; Ameden v. Atwood, Maine Rev. St. 1903, c. 75 § 13; 68 Vt. 322, 35 AH. 311;, SartweU v. Massachusetts Rev. Laws 1902, c. Scwles, 72 Vt. 270, 48 Atl. 11, 82 Am. 127, § 3; Missouri Rev. St. 1899, § St. Rep. 943. 3414; New Sampehire Pub. St. 1901, L. and Ten. 16. 242 CREATION OF THE RELATION. §25 tenancy.*^ 5 And in another state a statute,*^* abolishing tenan- cies from year to year except when created by express written contract, would seem to render it impossible to regard as such a tenant one in possession under an invalid oral lease.*^^ If one has, by entering under a void oral lease and the payment of rent, become a tenant from year to year, he will, it seems evi- dent, so long as he continues his holding, in the absence of -a new lease, continue to hold as a tenant from year to year, in the same way as if he had entered by permission without any lease for a specified term, and the fact that the time named in the void lease has expired could not change the terms of his holding.*!^ There are occasional suggestions to the effect that one entering under a verbal lease, even though he pays a yearly rent, will be- come a tenant from year to year only after he has had possession for a year.*^'' This view, it is submitted, is not justified on prin- ts Ellis v. JP^iige, 18 Mass. (1 Pick.) 43; Davis v. Thompson, 13 Me. 209; Withers v. Larrabee, 48 I Me. 570. In Georgia, also, this seems to be the case. Nicholes v. Swift, 118 Ga. 922, 45 S. E. 708, 98 Am. St. Rep. 145; "Western Union Tel. Co. v. Piiln, 52 Ga. 18; Hayes v. City of Atlanta, 1 Ga. App. 25, 57 S. E. 1087. See, also, Goodwin v. Clover, 91 Minn. 438, 98 N. W. 322, where It is said that the lessee, having en- tered, was a tenant at will, and no statement is made as to what rent he paid, or whether he paid any rent. 414 Ball. Ann. Codes & St. Wash. § 4568. 415 Though the section above re- ferred to abolishes tenancies from year to year when not created in ex- press terms, the next section (4569) somewhat inconsistently provides that when premises are rented for an indefinite time, at a monthly or other periodic rent, a tenancy from month to month, or "from period to period on which rent is payable," shall arise. In Dorman v. Plowman, 41 Wash. 477, 83 Pac. 322, it was held that the entry and payment of a yearly rent under a lease invalid under the statute of frauds created a tenancy "terminable by either party at the end of any year," this ignoring completely, it would seem, the provision abolishing tenancies from year to year. In the previous case of Richards v. Redelsheimer, 36 Wash. 325, 78 Pac. 934, it was said that if an oral lease is good at all, it must come under § 4569 and be construed as a lease from montli to month. 416 Baltimore & O. R. Co. v. West, 57 Ohio St. 161, 49 N. E. 344. The court there speaks of the tenant, who thus retains possession after the period named in the void lease has elapsed, as "holding over the term." It is, it is submitted, not a case of holding over the term, be- cause there was no term. He merely continues as tenant from year to year. 4i7Talamo v. Spitzmiller, 120 N. Y. 37, 23 N. E. 980, 8 L. R. A. 221, I 25 NECESSITY OP WRITING. 243 eiple or authority. However short his possession may have been, provided the parties have by the payment and acceptance of an installment of annual rent, or otherwise, shown an intention that the holding shall be from year to year, it will assume that charac- ter. In many of the states there is no provision that a lease within the statute shall be effective to create only a tenancy at will, but the statute in terms makes the lease invalid or unenforcible. The omission of any specific reference to a tenancy at will cannot, how- ever, affect the principle that one entering under the invalid lease is primarily a tenant at will as having possession by permission of the owner.*! 8 The fact that the lease is void in so far as it at- tempts to create a term cannot affect its operation as showing a permission to the lessee to enter, and having so entered by per- mission, and thus become tenant at will, the tenant 's payment of a periodic rent should, in accordance with the general rule, be re- garded as evidence of an intention to create a periodic tenancy. This accords with the decisions as to one entering under a lease invalid for some reason other than noncompliance with the statute of frauds, such person being regarded as in the first place a ten- ant at will,*!^ becoming a periodic tenant on payment of a periodic rent.*^'* There are a number of cases which assert this view, more or less clearly, in connection with leases within the statute of frauds, regarding the question whether the tenancy at will be- comes a periodic tenancy as depending on the payment of a pe- 17 Am. St. Rep. 609; Allen v. Bart- tenant, what is he? He is In posses- lett, 20 W. Va. 46, quoted in Arbenz sion, and his possession is not V. Bxley, Watkins & Co., 52 W. Va. wrongful, being by permission. 476, 44 S. B. 149, 61 L. R. A. 857; One in possession by permission Baltimore & O. R. Co. v. West, 57 must be a tenant. Ohio St. 161, 49 N. E. 344 (semble). In Kofoid v. Lincoln Implement & See, also, Amsden v. Blaisdell, 60 Transfer Co. (Neb.) 114 N. W. 937, Vt. 386, 15 Atl. 332. one entering under a lease within 418 See ante, § 13 a (3). This the statute was regarded as having seems to be lost eight of in Rich- no right of possession as against ards v. Redelsheimer, 36 Wash. 325, the lessor. 78 Pac. 934^ it being assumed that if *i» See cases cited ante, § 14 b one enters under a void lease he (2) (a). can be a tenant only by reason of 420 Tiernan v. Johnson, 7 Mo. 43; some express .statutory provision. Parley v. McKeegan, 48 Neb. 237, 67 If one entering under an oral lease N. W. 161; Kernochan v. Wilkens, is not a tenant at will or a periodic 3 App. 0iv. 596, 38 N. Y. Supp. 236. 244 CREATION OF THE RELATION. §25 ciodic rent, aad tlte question as to what is- the character of the periodic tenancy, whether a tenancy from year to. year or from month to month, for instaneCi as depending on whether the rent is paid with reference to a period ol a year or a month.^^^ In aom© *2i In Johnson v. Albertson^ 51 Minn. 333, 53 N. W. 642, it is said that in the statement that the ten- ant at will becomes a tenant from year to year by "payment of rent," "payment," must mean pay- ment with reference to a yearly hold- ing, and wiiether the payment is such should be determined without reference to the void lease. The opinion proceeds: "When urban property is involved, occupancy and monthly payments as for each month's rent are insufficient, standing alone, to indicate an intention to create a yearly tenancy. They indi- cate merely an Intentron to create a tenancy from month to month." In Talamo v. Spitzmiller, 120 N. Y. 37, 23 N. E. 980, 8 L. R. A. 221, 17 Am. St. Rep. 609,, it is said that "the mere fact that a person goes into possession under a lease void because for a longer term than one year does not create a yearly ten- ancy. * * * While it is not re- quired that a new contract, be made in express terms, there must be something from which it may be inferred. Something which taids to show that is within the mtenfeion of the parties. The payment and re* ceipt of an installment or aliquot part, of the ajnnuat rent is evidence of such understanding, and goes in' support of a yearly tenancy; and without explanation to the contrary, it is controlling evidence for that purpose."' And so in Eeeder v. Sayre, 1$ N. T. 180, 26, Am. Rep. 56;T, and Laughran v. Smith, 75, N. Y. 205,, *-he tenancy from year to yeasr is- regarded as based on both the entry and the payment of the annual rent reserved. And in Greaton v. Smith, 1 Daly (N. Y.) 380, it is stated that payment of rent with refereace' to a yearly holding is necessary to change the tenancy at will so created into a tenancy from year to year. In Lockwood v. Lockwood, 22 Conn. 4'25, the tenant was regarded as tenant from year to year by reason of his payment of yearly rent. In a number of cases it is, de- cided that payment of a monthly rent by the tenant holding under the void lease will show a tenancy from month to month. Warner t. Hale, 65 111. 395 ; Creighton v., San- ders, 89 111. 543; Brownell y., Welch^ 91 111. 523; Donohna v. Chicago Bank Note Co., 37 111. App., 552; Lehman v. Nolting, 56 Mo. App. 549; Butts V. Fox, 96 Mo. App, 437, 70, S. W. 515; Prindle v. Anderson, 19 Wenid.. (N. Y.) 391; Anderson v. Prindle, 23 Wend. (N., T.) 616; Peoi pie V. Daa-ling, 47 N. Y., 666;' eeiger v: Braun, 6 Da^y (N. Y.) 506;; Law- rence V. HasbiToucfi:, 21 Miec-.. 39',, 46 N. Y. SLuvP- 8€8,., Utah Loan ffi Trust Co. V. Garbutt, 6 Utah, 342, 23 Pae; 758. In a quite recent case in 11&- nois, indifeed (lEarr v.. Bay,. 15 111. 340,, 37 N. E. 10i29, 2:6 'L. R. A. 799-)', it is said that possession and pay- ment of rem* createsf a tenancy flroHi month to mionth, without any sug- gestion being made that a tenancy from year to. year would ha created if the rent were a yearly rent. In this case the rent was paM monthls; § 25 NECESSITY OF WRITING. 245 cases, hswever, it is appairently considered tlaial; a tejiaiicy from year to year arises in the particular ease witbout reference to whetlier any rent is j)aid,*22. 42s a^^ jq g, mimber it is decided that the lessee's entry and paymeiat of rent creates a tenaHicy from year to year, without any saggestion that his payitneaiBt of rent, if not with reference to a yearly period, would create a periodic ten- ancy of a different sort, from quarter to qoarter or month to month for instamce.*^* The qu-estion whether the reservation of a periodic rent in con- nection with the invalid lease will, apart from paymsent thereof, be regarded as evidence that the lessee taikinig possession is a pe- riodic tenant, is a matter which 1ms seldom been the subject of dis- cussion. The answer to the question would seem to depend on the eonsideration whether, though tbe lease, regarded as a conveyance, is invalid under the statute, the attempted reservation of rent or as m the ^previous cases in that formed within a year, do^ not iState, cated ahove. create a tenancy from year to year. 422, 423 Larfcin v. Aveiry, 23 Conn. Unglish v. MaTvin, 128 N. Y. 380, 28 304; Strong v. Croslsy, 21 Conn". N. S. =634. S98; Mopehead v. Watkyns, 44 Ky. 424 Schneider v. Lord, 62 Mich. (5 B. Mom.) 228; Ohio & M. R. Co. 141, 28 N. W. 773; Huntington v.. V. Trapp, 4 Ind. App. 69, 30 N. E. Parihurst, 87 Mich. 38, 49 N. W. 597, 812; Nash v. Berkmeir, 83 Ind. 536; 24 Am. St. Rep. 146; Groodfellow v. Brant v. Vmcast, IW Mich. 426, 59 Noble, 25 Mo. 60; Rtdgely y. Still- N. W. 169; -Cnnningham v. Roush, well, 25 Mo. 570; ScTilly y. Murray, 157 Mo. 336, 57 S. W. 769; Davies v. 34 Mo. 420, 86 Am. Dec. 116; Nichols Baldwin, '66 Mo. App. 577; Drake v. v. Hi<5klin, 127 Mo. App. 672, 106 Newton, 23 N. J. Law (3 Zab.) Ill; S. W. 1109; Blnmenthal v. Blooming- Peop'le V. Rickert, 8 Cow. (N. Y.) dale, 100 N. Y. 558, 3 N. E. 292; Cou- 226; Lonnsbery v. Snyder, 31 N. Y. dert v. Cohn, 118 N. Y. 309, 23 N. S14; Taggard v. Roosevelt, 2 E. D. E. 298, 7 L. R. A. 69, 1« Am. St. Rep. Smith (N. Y.) 1»0, 8 How. Pr. 141; 761; Humphrey Hardware Co. v. Clark V. SmiOi, 25 Pa. 137 ; Ridgeley Herrick, 5 Neb. UnoS. 524, 9.9 N. V. Stillwell, 28 Mo. 400; Scully v. W. 233; Wiilliaims v. Ackerman, MiiErray, 84 Mo. 420, 8€ Am. Dec. 116; 8 Or. 405; Rosenblatt v. Perkins, Harnertt v. Korscherak, 110 N. Y. 18 Or. 156, 22 Pac. 598; Garrett v. Snpp. 986; Duke v. Harper, 14 Clark, 5 Or. 464; Walter v. Transue, Tenn. (6 Terg.) 280, 27 Am. Dec. 22 Pa. Super. Ct. 617; McDowell v. 462; Rogers v. Wheaton, 88 Tenn. Simpson, 3 Watts (Pa.) 129, 27 i665, 13 S. W. 689. See, also, post, Am. Dec. 338 it was held; that the oral lease was admissible to show the time for payment of rent, althougfc it named no time in this regard, it being left to the jury to find, "from an express agreement as t(* the iBKgth of the temr, an implied agree- ment as to the time of payment." *"2 In, Dufflee v. Maarsfield, 141 Pa. 507, 21 Atl. 675,, the guarantor was heM liable, the court merely Baling "we need! not discuss the' legal efSeet of the omissiion of the lessor to sign the paper. It has no bearing upon the case. The lessee entered under the lease. So long as he remains in possession the surety is Bable." In Lehman v. Nolting, 5ft Mo. App. 549, the liability of the guarantor is in terms baaed on the fact that the lessee entered and made some pay- ments in accordance with the reser- vation, the court saying that the guarantor, being assumed to know the law, must have contracted "un- der the assumption that the leesee would enter the premiises and pay rent as provided by the lease. And § 25 NECESSITY OF WRITING. 257 tirely clear how, the lease being invalid, the rent reserved thereby can be regarded as existing for the purpose of the guaranty. The rent which may become due by reason of the lessee 's entry is not that reserved, even though the amount thereof be the same.*''* (5) Part performance. The equitable doctrine that a contract which is not evidenced as required by the statute of frauds may be enforced if one party has done certain acts in part performance or upon the faith of the contract has been freely applied in this country to cases not in writing as required by the statute. In two states only, it appears, has this doctrine of part performance been regarded as inapplicable to the case of an oral lease.*''* In spite, however, of the frequency with which the view that this doc- trine is applicable in the ease of a verbal lease within the statute has been asserted by the courts, its soundness may be questioned, it is submitted, it having its origin in the mistaken idea that a lease is primarily a contract rather than a conveyance. knowing that such action on the part plication excludes the application of of the lessee made of him a tenant the doctrine in the case of a lease, from month to month, he guaranteed Hunt v. Coe, 15 Iowa, 197; Thorp v. the faithful payment of such rent Bradley, 75 Iowa, 50, 39 N. W. 177; under such tenancy." But, it would Burden v. Knight, 82 Iowa, 584, 48 seem, he did not guarantee the rent, N. W. 985; Powell v. Crampton, 102 a contract to pay which might be Iowa, 364, 71 N. W. 579. inferred from the possible entry and In Kentucky also it appears to be payment of rent by the lessee, but assumed that such a dictrine is in- an entirely different rent, that re- applicable (Wessells v. Rodifer, 30 served on the attempted making of Ky. Law Rep. 51, 97 S. W. 341; Poole a lease for a term of years, which v. Johnson, 31 Ky. Law Rep. 165, 101 reservation was void. S. W. 955,) though the lessee, if he "^ Keller v. Fisher, 7 Ind. 718, makes improvements, can remain in appears to be opposed to the view possession until he is reimbursed that the guarantor is liable. therefor. Poole v. Johnson, 31 Ky. 474 In Iowa the doctrine of part Law Rep. 165, 101 S. "W. 955. In performance is held not to apply to O'Neal v. Orr, 68 Ky. (5 Bush) 649, the case of a lease for the reason It was decided that where a land- that the local statute of frauds con- lord promised his tenant, in consid- tains a provision that the statute eration of repairs and improvements shall not apply to a contract for the made by him, that he should retain purchaise or sale of land when part possession so long as he paid the of the purchase money has been paid agreed rent, he could not evict the or possession taken, and that this tenant without accounting for the provision as to part performance in improvements, though the promise the case of a sale of land by im- was invalid because not in writing. L. and Ten. 17. ' '"^ 258 CREATION OF THE RELATION. § 25 The doctrine of "part performance," and that of which it is a part, the doctrine of "specific performance," are in their nature applicable only to executory contracts, that is, to contracts calling for performance in the future. The expression "lease," as we have before remarked,*^'' is used in several senses, but its primary meaning is that of a conveyance, though it is used also to include the executory stipulations entered into by the parties at the time of the making of the conveyance. A conveyance by way of lease, whether valid or invalid, is not an executory contract, and is evidently incapable of "performance," either in whole or in part.*'^® "We might as well speak of the ' ' performance " of a con- veyance in fee simple. On the other hand, the executory stipula- tions entered into by the parties are capable of performance, be- ing indeed made to be performed, and any of them might be speci- fically enforced if of a character admitting of such relief, in ac- cordance with the established rules of equity on the subject. But, it would seem, such relief should be sought and awarded with ref- erence to each individual stipulation separately, and not to all "en masse," under the collective name of "lease," and the prac- tical application of the doctrine of part performance in connection with the enforcement of a single one of several such executory stipulations might involve considerable difficulty. It may be re- marked that the cases in this country, applying the doctrine of part performance in connection with an oral lease, quite frequently cite as authorities English cases in which the doctrine was ap- plied to executory agreements to make a lease, without, appar- ently, any appreciation of the distinction between the two classes of transactions. The least unsatisfactory theory perhaps on wTiich to support the decisions that "part performance," so-called, of an oral lease, will take it out of the statute of frauds, is that such a lease is to be construed as an oral contract to make a lease, and that it is this contract which is the subject of the part performance.*^''' Such a 475 See ante, § 16. under seal, has been in several cases *'« See remarks of Sharswood, C. construed as a valid contract for a J., in Kemble Coal & Iron Co. v. lease, of which specific performance Scott, 90 Pa. 332. would be decreed (Parker v. Tas- 477 In England a lease *hich is, by well, 2 De Gex & J. 559; Bond v. the terms of the statute 8 & 9 Vict. Rosling, 1 Best & S. 371; RoUason v. c. 106, invalid as such because not Leon, 7 Hurl. & N. 73). No case ap- §25 NECESSITY OP WRITING. 259 view appears, however, never to have been judicially suggested. There are a number of cases in which it is asserted that the doc- trine of part performance in connection with an oral lease can be applied only in equity,*''^ and that the doctrine is purely equitable is ordinarily recognized.^^* But in a considerable number of cases the courts have, in connection with such a lease, ignored this dis- tinction, regarding "part performance" as sufficient to validate the lease for all purposes at law as well as in equity. These de- cisions may presumably be regarded as to some extent an out- growth of the statutory merger of law and equity,**" though, so far as appears from the language of the courts, they may be the result merely of a misunderstanding of the doctrine of part per- formance. As before stated, by numerous decisions, a lessee under aD oral lease entering thereunder and paying rent becomes a tenant at will or a periodic tenant.**^ So far as the doctrine of part per- formance may in any jurisdiction be regarded as applicable at law to an oral lease, and such entry and payment of rent may be re- garded as constituting such part performance,**^ it would seem pears, however, in which this prin- ciple has been applied to an oral, as distinct from an unsealed, lease. 478 Brockway v. Thomas, 36 Ark. 518; Warner v. Hale, 65 111. 395; Creighton v. Sanders, 89 111. 543; Leavitt v. Stern, 159 111. 526, 42 N. B. 869; Chicago & N. W. R. Co. v. Miller, 233 111.. 508, 84 N. E. 683; Hunt v. Ooe, 15 Iowa, 197; Tram- mell V. Craddock, 100 Ala. 266, 13 So. 911; Cram v. Thompson, 87 Minn. 172, 91 N. W. 483; "Spota v. Hayes, 36 Misc. 532, 73 N. Y. Supp. 959; Birckhead v. Cummins, 33 N. J. Law, 44; Smith v. Phillips, 69 N. H. 470, 43 Atl. 183; Hawley v. Moody, 24 Vt. 603. <7o See Browne, Stat, of Frauds (5th Ed.) § 448; 3 Pomeroy, Bq. Jur. § 1409; 29 Am. & Eng. Bnc. Law (2d Ed.) 831. 480 In England, since the fusion of law and equity by the Judicature Acts, it has been decided that the rule of equity has superseded that of law as regards a tenant in pos- session under a contract for a lease of which specific performance would be decreed, and that he is in the same position as if a lease had been executed, so far at least as concerns a court having jurisdiction both at law and in equity. See post, § 62, notes 14-18. Conceding that an act ual lease, as well as a contract for a lease, is a subject for the applica- tion of the doctrine of part perform- ance, the same principle would seem to be applicable in this country so far as there may have been, in the particular jurisdiction, a similar fusion of law and equity, with a pro- vision that in case of conflict the doctrines of equity shall be control- ling. 481 See ante, § 25 g (1). 482 See post, at note 487. 260 CREATION OP THE RELATION. § 25 to override the doctrine that the lessee is in such case a tenant at will or a periodic tenant, since he cannot be both that and also a tenant for the full term named.^ss in jurisdictions, on the other hand, in which this doctrine is regarded as applicable to an oral lease in equity only, the lessee under such a lease, entering and paying rent, is a tenant at will or a periodic tenant in a court of law, while in a court of equity he is a tenant for the full term named, if the lease is to be regarded as capable of specific enforce- ment. Assuming that the doctrine of part performance is properly applicable to an oral lease within the statute, the question arises, what acts constitute part performance of a lease. There are de- cisions to the effect that the delivery of possession by the lessor to the lessee, or the latter 's taking of possession, is sufficient for this purpose.*^* The possession must, however, appear to have been delivered and assumed in reliance on the alleged lease, and consequently the fact that one already in possession of land by a lease or otherwise continues in possession does not render ad- missible evidence of a new lease which is not in writing,*s5 unless 4S3 In O'Connor v. Oliver, 45 Wash. 288. But the relation is created, it 549, 88 Pac. 1025, the court consld- may be remarked, although the' ered that there was a case of part lessee does not retain possession performance, and at the same time, through the term, apparently, undertook to apply the In Myers v. Croswell, 45 Ohio St. doctrine that the reservation of a 543, 15 N. E. 866, it was held that periodic rent had the effect of mak- the taking by the lessee of posses- ing the holding periodic. sion of part of the leased premises 484Rosser v. Harris, 48 Ga, 512; was not such part performance as Switzer v. Gardner, 41 Mich. 164, 2 validated the lease as to the balance, N. W. 191 (semble) ; Wharton v. if, by the terms of the lease, posses- Stoutenburgh, 35 N. J. Eq. 266; sion could not be taken of the bal- Moore v. Beasley, 3 Ohio, 294; Bless ance until a later date. It would V. Jenkins, 129 Mo. 647, 31 S. W. 938; have been held otherwise, it seems, Noland v. Cincinnati Cooperage Co., if all could be immediately taken 26 Ky. Law Rep. 837, 82 S. W. 627. possession of. In Cockran v Ward, It has been said that if possession 5 Ind. App. 89, 29 N. E. 795, si N. iis actually taken under a verbal lease E. 581, 51 Am. St. Rep. 229, it is invalid under the statute, and the said that occupancy of part of the lessee retains possession through the premises by the lessee under an oral term, the lease is in effect thereby lease, and payment of rent for such validated, and the relation of land- part, gives him no rights as to the lord and tenant is created so as to balance. authorize an attachment for ad- 4,85 Simons v. New Britain Trust vances. Martin v. Blanchett, 77 Ala. Co.. 80 Conn. 263, 67 Atl. 883; Koch §25 NECESSITY OF WRITING. 261 perhaps his continued possesion is unequivoeally referable to the new lease.**® The taking of possession and payment of rent by the lessee have also, together, been regarded as sufficient acts of part performance,**'^ though there are decisions to the contrary,*** de- cisions which obviously, in effect, deny the sufficiency of the taking of possession alone. If the delivery of possesion is followed by the making of beneficial improvements on the land by the lessee on the V. National Union Bldg. Ass'n, 137 111. 497, 27 N. B. 530; Railsback v. Walke, 81 Ind. 409; Maiana v. Blunt, 20 Iowa, 142; Rosenthal v. Free- burger, 26 Md. 75; Spalding v. Con- zelman, 30 Mo. 177; Armstrong v. Kattenhorn, 11 Ohio, 265; Crawford V. Vfixik, 18 Ohio St. 190; Jones v. Peterman, 3 Serg. & R. (Pa.) 543, 8 Am. Dec. 672; Dechenbach v. Rima, 45 Or. 500, 78 Pac. 666. That the lessee, before the time named for the commencement of his term, by permission of a previous lessee, teipporarily places his goods on the premises, does not afEect the operation of the statute. Mathews V. Carlton, 189 Mass. 285, 75 N. E. 637. 486 Armstrong v. Kattenhorn, 11 Ohio, 265. *87 Stautz V. Protzman, 84 111. App. 434; Grant v. Ramsey, 7 Ohio St. 157; Randall v. Thompson, 1 Will- son, Civ. Cas. Ct. App. § 1101; Kop- litz V. Gustavus, 48 Wis. 48, 3 N. W. 754. In Alabama this conclusion is based on the terms of the statute (Code 1907, i 4289), which annuls all verbal agreements for the sale of land or any interest therein "ex- cept leases for a term not longer than one year, unless the purchase money, or a portion thereof, be paid, and the purchaser be put in posses- sion of the land by the seller." Shakespeare v Alba, 76 Ala. 351; Trammell v. Craddock, 100 Ala. 266, 13 So. 911; A. G. Rhodes B^irnlture Co. V. Weedon, 108 Ala. 252, 19 So. 318. In Watkins v. Balch, 41 Wash. 310, 83 Pac. 321, it is said that entry and payment, by the lessee, of the rent for a fixed term under an oral lease, renders the lease good for the whole term. This is not stated to be an application of the doctrine of part performance, but presumably that is the idea intended to be conveyed. 48S Humphrey Hardware Co. v. Herrick, 5 Neb. Unofe. 524, 99 N. W. 233; Bard v. Elston, 31 Kan. 274, 1 Pac. 565. In Nicholes v. Swift, 118 Ga. 922, 45 S. E. 708, it is said that "if mere possession and occupation of the rented premises, with the landlord's consent, would be sufficient to make such a contract binding on the ten- ant for the term specified therein, the provision of the statute would be meaningless." Distinguishing Petty T. Kennon, 49 Ga. 468, as merely deciding that if, by the terms of an oral lease, the lessee was to repair and to be paid the cost of the repairs by the landlord, and was to have a right to remain until he was paid, he could not be ousted with- out payment. Steininger v. Wil- liams, 63 Ga. 475, does not appear to accord with Nicholes v. Swift. 262 CREATION OF THE RELATION. §25 faith of the lease, there is no doubt a sufficient part perform- ance.*®® The payment of rent alone is not sufficient part performance, the lessee not having taken pos'session on the strength of the oral lease.**" If, however, a tenant holding over under a new lease, 489 Morrison v. Peay, 21 Ark. 110; Steel V. Payne, 42 Ga. 207; Morrison V. Herrick, 130 111. 631, 22 N. E. 537; Bard v. Elston, 31 Kan. 274, 1 Pac. 565; Benjamin v. Wilson, 34 Minn. 517, 26 N. W. 725; Wharton v. Stou- tenburgh, 35 N. J. Eq. 266; Wilber v. Paine, 1 Ohio, 251; Wallace v. Scog- gins, 17 Or. 476, 21 Pac. 558; Jones V. Peterman, 3 Serg. & R. (Pa.) 543, 8 Am. Dec. 672; Anderson v. Ander- son, 13 Tex. Civ. App. 527, 36 S. W. 816; Gibbs v. J. M. Horton Ice Creain Co., 61 App. Div. 621, 71 N. Y. Supp. 193; Veeder v. Horstmann, 85 App. Div. 154, 83 N. Y. Supp. 99; Adams V. Bonnefon, 124 Mo. App. 457, 101 S. W. 693 (semble); O'Connor v. Oliver, 45 Wash. 549, 88 Pac. 1,025. In Wallace v. Scoggins, 17 Or. 476, 21 Pac. 558, it was held that the lessee's removal of shrubbery to the premises, his purchase and laying down of carpets, and taking in of his winter's supply of fuel, consti- tuted part performance. That the lessee of rooms in a build- ing in course of construction, by agreement with the lessor, has, at his own expense, a more elaborate fin- ishing put Into the rooms than had been intended by the lessor, and has his sign put on the windows, does not take the case out of the statute. Wilder v. Stace, 61 Hun, 233, 15 N. Y. Supp. 870. In Winters v. Cherry, 78 Mo. 344, it was apparently decided that where, a year before the end of a lease, a new lease was made to include premises included in the old lease and additional premises, the lessor to fit up the latter, and the fitting up was done and the lessee was placed in possession of the addi- tional premises, the lessee was liable for rent reserved under the new lease, though he gave up possession at the end of the previous lease. The opinion is most obscure. In Smelling v. Valley, 103 Mich. 580, 61 N. W. 878, an oral lease for two years was made, the rent to be paia by the lessee's services in clear- ing the land during the spring of the first year, and it was held that the lessor could maintain a sum- mary proceeding under the statute to recover possession as for nonpay- ment of rent, the lessee having failed to clear the land, that the lessee could not claim the notice to which a tenant from year to year or at will is entitled, and that, since he, having entered on the land and part- ly cleared It, could have enforced the lease in equity, he could not repudiate hie obligation to do the clearing on the theory that he would thereby pay rent for the whole term when he acquired no right to pos- session in return thereof. It seems to be assumed that the summary proceeding for nonpayment of rent does not lie if the lessee, by taking possession under an oral lease, be- came a tenant at will or from year to year. «o Rosen v. Rose, 13 Misc. 565, 34 N. Y. Supp. 467; Merchant's State Bank V. Ruettell, 12 N. D. 519, 97 N. W. 853; Hawley v. Moody, 24 Vt. 603; § 25 NECESSITY OP WRITING. 263 invalid because oral, pays an increased rent, even a single install- ment merely, this might be regarded as sufficient part perform- ance, provided it can be shown to have been made in respect of the new lease.*9i Likewise, if-one already in possession under a lease makes beneficial improvements in reliance on a verbal renewal lease, the latter is taken out of the statute.*92 It is to be observed that this doctrine of part performance has been applied in favor of the lessor as well as the lessee, that is, while part performance by the lessee has been held to entitle him to specific performance by the lessor,*93 or to retain possession for the term as against the lessor,*^* part performance by the les- sor has been held to entitle him to specific performance by the lessee,*^^ or to recover against the lessee on his covenant for rent.*38 Occasionally it seems to be thought that a part perform- ance by one party may render the lease enforcible against him as well as in his favor,*^''^ but this seems to lose sight of the whole Townsend v. Sharp, 2 Tenn. (2 in possession. Spalding v. Conzel- Overt.) 192; Webster v. Blodgett, 59 man, 30 Mo. 177. See Browne, Stat. N. H. 120, 47 Am. Rep. 179 ("parol of Frauds, § 480, and Brennan v. contract to lease land"). Bolton, 2 Dru. & War"! 349, -where it *9i It has heen so decided in ref- was so held as regards an agreement erence to a contract for a lease, for a lease. Wills V. Stradling, 3 Ves. Jr. 378; 493 Shakespeare v. Alba, 76 Ala. Nunn V. Fabian, L. R. 1 Ch. 35; 351; Morrison v. Peay, 21 Ark. 110; Miller v. Sharp [1899] 1 Cb. 622; Wallace v. Scoggins, 17 Or. 476, 21 Spear v. Orendorf, 26 Md. 37. In Pac. 558; Morrison v. Herrick, 130 Dahm v. Barlow, 93 Ala. 120, 9 So. 111. 631, 22 N. E. 537. 598, it was decided that payment of *»< Steele v. Payne, 42 Ga. 207 ;' rent under a renewal lease, not exe- Rosser v. Harris, 48 Ga. 512; Bard cuted 'in compliance with the stat- v. Blston, 31 Kan. 274, 1 Pac. 565; ute, by the tenant previously in pos- Benjamin v. Wilson, 34 Minn. 517, session, took the case out of the 26 N. W. 725; Wilber v. Paine, 1 statute. Ohio, 251; Dennis v. Hanson, 12 *»2 Morrison v. Herrick, 130 111. Ohio Cir. Ct. R. 445, 1 Ohio Civ. 631, 22 N. ES. 537, commented on in Dec. 465. Koch v. National Union Bldg. Ass'n, *96 Wharton v. Stoutenburgh, 35 N. 137 III. 497, 27 N. E. 530; Witman v. J. Eq. 266. Reading, 191 Pa. 134, 43 Atl. 140. 406 Moore v. Beasley, 3 Ohio, 294; Compare Whiting & Co. v. Pitts- Bless v. Jenkins, 129 Mo. 647, 31 S. burgh Opera House Co., 88 Pa. 100. W. 938. The improvements must be of such *9t Christopher v. National Brew, importance as to be reasonably refer- Co., 72 Mo. App. 121; Grant v. Ram- able to the new lease, and not such sey, 7 Ohio St. 157. as are usually made by any tenant 264 CREATION OF THE RELATION. § 2g theory of part performance, as being intended for the i)rotection of one who has performed on the supposition that the other party would recognize the transaction as valid.*®* § 26. The form and parts of an instrtiment of lease. a. General considerations. An instrument of lease which sat- isfies all statutory requirements as to execution need not follow any particular form, it being sufficient that it show an intention on the part of the lessor, by the making thereof, to dispossess him- self of the tenements in question in favor of the lessee. A care- fully drawn instrument, however, ordinarily consists of the fol- lowing parts. At the beginning the names of the parties are stated,*®^ and the date is frequently here given, though often placed at the end. Next come the "recitals," if there are any, these being statements of fact explanatory of the transaction, and these are followed by the words of demise^"" with a description of the premises leased, '"^ and any exception in favor of the lessor or any reservatibn of an easement or right of profit.^*^ Then comes the habendum, which states the character and amount of interest conferred, as whether an estate for life, for years or at will, and, if an estate for years, the duration of the term, and then the reddendum, which states the character and amount of rent and the times of payment there- of. Thereafter are inserted any covenants entered into by the les- sor and lessee respectively,^''^ and lastly a clause providing for the lessor's re-entry on nonpayment of rent or other nonperform- ance of covenants on the part of the lessee. ^''^ b. Words of demise. The operative words of a lease are usually "lease" or "let," or "demise and lease," or "demise grant and farm let, ' ' but no particular words are necessary,^"' and "whatsoever word amounteth to a grant may serve to make a lease. "^'^^ Whatever words are sufficient to explain the intent of *88 See Brown Stat, of Frauds, § Barnsdale v. Boley, 119 Fed. 191; 453. Brown v. O'Byrne (Ala.) 45 So. 129. 499 The general rule that one who 5oo See post, § 26 b. merely signs a conveyance without soi See post, § 26 c. having been named therein is not to 602 See post, | 26 d. be regarded as a party thereto (2 sos See post, chapter V. Tiffany, Real Prop. § 380) is pre- 504 See post, § 194. sumably applicable to a lease as well sos See 2 Blackst. Comm. 31& as to a conveyance in fee. See 5oe Co. Litt. 45 b. § 26 WORDS OF DEMISE. 265 the parties, that the one shall divest himself of the possessiop and the other come into it for a determinate time, such words, whether they run in the form of a license, covenant or agreement, are of themselves sufficient, and will in construction of law amount to a lease for years as effectually as if the most proper and pertinent words had been made use of for that purposc^o^ So permission given by the owner to another to enter and take the profits of the landj^os or to occupy or inhabit it,^''^ may amount to a lease. In the case of a tenancy at will, as has been before indicated, ''i" the tenancy is ordinarily created by a lease of a most informal char- acter, a mere permission to take possession. Such a lease, is how- ever, usually not incorporated in a written instrument. While, as above stated, the word "license" may operate as a word of demise,"! it does not necessarily do so, and if the inten- tion is to give a right to enter for limited purposes only, and not the exclusive possession, the instrument cannot take effect as a lease, but a license only is created.^^^ 507 Bac. Abr., Leases (K) 612. to begin October 1, 1870, for one And see "to the same effect West year at $150," was, in connection Chicago St. R. Co. v. Morrison, with evidence that the owner had Adams & Allen Co., 160 111. 288, 43 agreed to lease the premises, on N. E. 393; Duncklee v. Webber, 151 which there was a stable, sufficient Mass. 408, 24 N. E. 1082; Munson v. as a lease. In Barrett v. Johnson, 2 Wray, 7 Blackf. (Ind.) 403; Alcorn Ind. App. 25, 27 N. E. 983, it was v. Morgan, 77 Ind. 184; Waller v. held that a provision in a contract Morgan, 57 Ky. (18 B. Mon.) 136; for the sale of land, that under cer- Moshier v. Reding, 12 Me. (3 Fairf.) tain circumstances the payments 478; Fiske v. Framingham Mfg. Co., made by the purchaser "shall go 31 Mass. (14 Pick.) 491; Mason v. towards paying rent on said lot at Clifford, 4 Fed. 177; Watson v. the rate of six dollars per month,'' O'Hern, G Watts (Pa.) 362; Buss- converted the contract into a lease man v. Granster, 72 Pa. 285; Mav- in that event, erick v. Lewis, 3 McCord (S. C.) sos Anonymous, 3 Salk. 223. 211; Twiss v. Boehmer, 39 Or. 359, sos Drake v. Munday, Cro. Car. 65 Pac. 18; Pickering v. O'Brien, 207; Tisdale v. Essex, Hob. 34; Doe 23 Pa. Super. Ct. 125; Upper Appo- d. Jackson v. Ashburner, 5 Term mattox Co. v. Hamilton, 83 Va. 319, R. 163. 2 S. E. 195. 5i« See ante, § 13 (a) (3). In Eastman v. Perkins, 111 Mass. sii Hall v. Seabright, 1 Mod. 14; 30, it was held that a bill of sale of Trever v. Roberts, Hardres, 366; Y. hay, with a receipt for the price B. 5 Hen. 7, 1; Branch v. Doane, 17 thereon, which concluded "Left at Conn. 402. stable on O. St., where A. P. (the 012 Anonymous, 3 Salk. 223; Wood purchaser) takes possession. Rent v. Lake, Sayer, 3. See ante, § 7. 266 CREATION OF THE RELATION. g 26 Even though there are no words of demise of any sort upon the part of the lessor, if an instrument as executed by him shows an intent to demise, there is a valid lease of the premises. If "one person agrees to take certain premises at a certain rent from a certain time, and both parties sign the paper, looking at the whole of such an instrument together, no body can doubt, that, though it contain no words of demise by the party who signs it as landlord, such an instrument would amount to a lease, because you cannot give effect to the signature, unless by supposing that there is an implied agreement to demise, besides the express words by which the tenant agrees to take."^^* So a mere offer to make a lease on certain terms, if accepted by the person to whom the offer is addressed, may constitute a lease,^i* as may an offer to accept a lease on (Certain terms, if assented to by the proposed lessor.*^* In the latter ease, however, the assent must be in writing in order to create a lease sufficient under the statute of frauds. c. Dsscription of premises — (1) Requirement of certainty, A lease, like any other conveyance, must describe the premises leased with sufficient certainty to render them capable of identi- fication.516 if it fails so to do, the lease transfers no interest to 513 Alderson, B., in Gore v. Lloyd, Rutland-Canadian R. Co., 75 Vt. 375, 12 Mees. & W. 463. 56 Atl. 7. 514 So in Baer v. Mlnock, 128 Mich. It has been decided in Indiana 676, 8 Det. Leg. N. 847, 87 N. W. that a lease of a certain number of 1045, there was held to be a lease acres sufficiently describes the prem- for six months where, in pursuance ises, although it does not locate of oral negotiations, the owner of them, it being provided that the the land wrote to another: "Here- lessor shall locate them and he be- with please find receipt for advance ing prepared to do so. Indianapolis rent on the premises beginning May Natural Gas Co. v. Spaugh, 17 Ind. 1st, 1900; rent $25 per month, first App. 683, 46 N. E. 691; Indianapolis six months," and the lessee replied Natural Gas Co. v. Pierce, 25 Ind. "All right." App. 116, 56 N. E. 137. And in Hunt 515 Steinfleld v. Wilcox, 26 Misc. v. Campbell, 83 Ind. 48, it was held 401, 56 N. Y. Supp. 217; Chapman v. that a lease of "not less than ten, Bluck, 4 Bing. N. C. 187. nor more than fifty acres," was made 5i« Patterson v. Hubbard, 30 111. effective by a subsequent conveyance 201 ; Diamond Plate-Glass Oo. v. to such lessee of specific land. These Teunell, 22 Ind. App. 132, 52 N. B. decisions seem to accord in principle 168 ; Dixon v. Pinnegan, 182 Mo. Ill, with the EngliiSh decisions in re- 81 S. W. 449; Bingham v. Honeyman, gard to wills (see Marshall's Case, 32 Or. 129, 51 Pac. 735; Goodsell v. Dyer, 281, note, 8 Vin. Abr. 48, pi. U; §26 DESCRIPTION OF PREMISES. 267 the lessee. It has been decided- however, that though the descrip- tion is insufficient, still if the lessee takes permissive possession of land belonging to the lessor, purporting to do so under the lease, he is liable for the stipulated rent, on the theory that this cures the uncertainty of description."" Presumably by this is meant that the fact that the lessee, with the consent of the lessor, takes possession of certain land, is evidence that the parties, by the language which they used, intended to designate this particular land.^i^ This would involve merely one application of the rule, supported by many decisions, that, in order to apply the language used in a description to particular land, evidence of extrinsic facts, "parol evidence" as it is ordinarily expressed, is admis- sible,"^^ a rule which is, however, it seems, subject to the proviso Tapley v. Eagleton, 12 Ch. Div. 683; Duckmanton v. Duckmanton, 5 Hurl. & N. 219; Jarman, Wills, 331. In Sheppard's Touchstone, 251, it is said: "If one be seised of two acres of land, and he doth lease them for life, and grant the remainder of one of them, and doth not say of which, to I. S., in this case, if I. S. make his election which acre he will have, the grant of the remainder to him will be good." If such a conveyance is •good when the election is made by the grantee, a fortiori, it would seem, it is good if the election is made by the grantor, especially when he is named to make it. 617 Bulkley v. Devine, 127 111. 406, 2* N. E. 16, 3 L. R. A. 330; Whipple V. Shewalter, 91 Ind. 114; Hoyle v. Bush, 14 Mo. App. 408; Weaver v. Shipley, 127 Ind. 526, 27 N. B. 146; Jackson v. Perrine, 35 N. J. Law, 137; McLennan v. Grant, 8 Wash. 603, 36 Pac. .682; Richards v. Snider, 11 Or. 197, 3 Pac. 177. See, also, Outtoun V. Dulin, 72 Md. 536, 20 Atl. 134. But see Dixon v. Finnegan, 182 Mo. Ill, 81 S. W. 449. In Ap- pleton V. O'Donnell, 173 Mass. 398, 53 N. B. 882, it is said that in such case, "even if the covenant did not bind as such, the law would imply a promise to pay at the promised rate." This apparently means that the lessee is liable in such case as for use and occupation, and the amount of rent reserved in the lease is evidence as to the value of the use and occupation. The grounds of the asserted distinction are not ex- plained. 618 See Marske v. Willard, 169 111. 276, 48 N. E. 290; 4 Wigmore, Evi- dence, §§ 2470, 2473. It Is sometimes said that the lessee is estopped to deny that the property thus taken possession of is that leased. But the usual elements of estoppel seem to be wanting. He has not misled the lessor to his prejudice. 519 Doe d. Freeland v. Burt, 1 Term R. 704; Lyle v. Richards, L. R. 1 H. L. 222; Bulkley v. Devine, 127 111. 406, 20 N. E. 16, 3 L. R. A. 330; Heyward v. Willmarth, 87 App. Div. 125, 84 N. Y. Supp. 75; Trimble's Heirs v. Ward, 53 Ky. (14 B. Men.) 8; Sirey v. Braems, 65 App. Div. 472, 72 N. Y. Supp. 1044; Durr V. Chase, 161 Mass. 40, 36 N. E. 741; Dougherty v. Chesnutt, 86 268 CREATION OP THE RELATION. § 26 that the language of the description is not, in itself, definite and unambiguous.^^" The maxim falsa demonstratio non nocet is applicable to the de- scription in an instrument of lease as in any other conveyance, and, consequently, if there is a sufficient description of the prem- ises leased, an incorrect addition to the description, inserted to aid in identifying the property, may be rejected.^^i So, the prem- ises being clearly ascertained, an erroneous measurementj^^^ name,523 street number,s24 qj. reference to present occupancy,'*' may be rejected. (2) Scope and efiFect. If the description is certain in terms, it will be strictly applied, and nothing more will pass. Thus, it has been decided that if a farm or a house is described as being in the occupation of a particular person, only so much thereof as is in his occupation will pass, '^s and if it is described as being in a par- ticular city, only so much as is so situated will pass.'^T A lease of land, like any other conveyance thereof, passes the buildings as well as other structures thereon, which, as being "fix- tures," are legally a part of the land.'^® Tenn. 1, 5 S. W. 444; Mittler v. Her- Serg. & R. (Pa.) 456, 8 Am. Dec. 722; ter, 39 Misc. 843, 81 N. Y. Supp. 494; Lush v. Druse, 4 Wend. (N. Y.) 313. Harris v. Dub, 57 Ga. 77; Sargent 5=3 Rorke v. Errington, 7 H. L. V. Adams, 69 Mass. (3 Gray) 72, 63 Gas. 62 b. Am. Dec. 718; Schneider v. Patter- 524 Cowen v. Truefitt [1898] 2 Ch. son, 38 Neb. 680, 57 N. W. 398; Cham- 551. berlaln v. Letson, 5 N. J. Liaw (2 sss Wrotesley v. Adams, Plowd. South) 520; Guy v. Barnes, 29 Ind. 191; Doe d. Smith v. Galloway, 5 103; House V. Jackson, 24 Or. 89, 32 Barn. & Adol. 43; Hlbbard v. Hurl- Pac. 1027. hurt, 10 Vt. 173. 52oBalIance v. Peoria, 180 111. 29, sssMagee v. Lavell, L. H. 9 C. P. 54 N. E. 428; Harris v. Oakley, 130 107; Morrell v. Fisher, 4 Exch. 591; N. Y. 1, 28 N. E. 530 ; Meredith Me- Alger v. Kennedy, 49 Vt. 109, 24 Am. chanic Ass'n v. American Twist Rep. 117. Drill Co., 66 N. H. 267, 20 Atl. 330; 527 Hall v. Combes, Cro. Eliz. 368. Morris v. Kettle, 57 N. J. Law, 218, 528 Sachs v. Henderson [1902] 1 K. 30 Atl. 879; Knapp v. Marlboro, 29 B. 602; Townsend v. Ford, 72 App. Vt. 282. Div. 621, 76 N. Y. Supp. 501; St. 521 See 4 Wigmore, Evidence, | Louis Public Schools v. Hollings- 2476. worth, 34 Mo. 191. See cases cited 522 Llewellyn v. Jersey, 11 Mees. & 13 Am. & Eng. Enc. Law (2d Ed.) W. 183; Manning v. Fitzgerald, 29 662 et seq. Law J. Exch. 24; Hall v. Powell, i By accepting a lease of premises. 26 DESCRIPTION OF PREMISES. 269 A lease in. terms of a house or other building prima facie in- cludes the soil covered thereby^^g ^q ^}^q outermost edge of the eaves or projections.^so it also may include a yard, garden or or- chard belonging to the house and used therewith,^^! or necessary to the convenient use of the building,532 and outhouses necessary for such use.^^* Though a lease of a building prima facie passes the soil or earth thereunder, it is possible to lease a building apart from the soil. It is a question of construction in each particular case whether a lease of a building includes the earth or soil, and, as above stated, there is a presumption in favor of such construction. So it is, it seems, a question of construction whether a lease of a part of a building includes the earth or soil.^^* If the lease is ia terms of a room or an apartment merely, it prima facie includes no part of the earth or soil,^^^ but there might be a lease in terms of a part of a building which would be so inclusive, as when a buildiag is leased by name and one room only is excepted therefrom. And in the case of one building, divided into two residences by a vertical one assumes no obligation to pay for fixtures thereon. GofE v. Harris, 5 Man. & G. 573. 529 McMillan v. Solomon, 42 Ala. 356, 94 Am. Dec. 654; Humiston, Keeling & Co. v. Wheeler, 175 111. 514, 51 N. E. 893; Hooper v. Pams- worth, 128 Mass. 487; Lanpher v. Glenn, 37 Minn. 4, 33 N. W. 10; Nash- ville, C. & St. L.. R. Co. V. Heikens, 112 Tenn. 378, 79 S. W. 1038, 65 L. R. A. 298. 530 Sherman v. Williams, 113 Mass. 481, 18 Am. Rep. 522. BsiCo. Litt. 5 b, 56 b; Sheppard'a Touchstone, 94; Com. Dig., Grant (E) 6; note (1) to 2 Wms. Saund. (Ed. 1871) 806; cases cited 2 Tiffany, Real Prop. § 387. 532 Bennett v. Brittle, 4 Rawle (Pa.) 339, where it was decided that the demise of a "barn" covered so much land only as was necessary for its use. See, also, Patterson v. Gra- ham, 140 111. 531, 30 N. E. 4fi0. B33Doe d. Clements v. Collins, 2 Term R. 498; Armstrong v. Crilly, 51 111. App. 504. 03* In P. H. Snook & Austin Furn- iture Co. V. Steiner, 117 Ga. 363, 43 S. E. 775, a lease of premises, de- scribing them by street and number, "including the second I'and third stories over the same, and including the kitchen in the rear of said prem- ises, and inclnding the second floor over" another building, was con- strued as a lease of the building alone. In Iranpher v. Glenn, 37 Minn. 4, 33 N. W. 10, where the lease described the property as "the two-story (and rear basement) frame stores, and dwellings over head, situated on the westerly side of J. street," It was decided that the description covered the entire building and hence the lease passed an interest in the land. 535 See ante, § 24 c. 270 CREATION OF THE RELATION. § 26 partition, it would be a question of construction whether a lease of one of such residences included the ground thereunder or ad- joining. A lease describing the premises as a certain number on a cer- tain street would generally, it seems, pass not only the land cover- ed by the building but also so much of the adjoining land as is en- closed and ordinarily used therewith and is necessary for its con- venient occupation and use.^^^ Such a description does not, prima facie at least, include a part of the building which is not accessible by the door to which the number is affixed.^*^ A pro- vision, in a lease which describes certain premises as the subject thereof, that the lessee shall have the right to use the adjoining land for certain purposes, does not, it seems clear, make the ten- ancy extend to such land.^^s A lease of a "farm" includes the farm house and farm buildings on the f arm,^*® and the fact that the farm house is specfieally men- tioned does not restrict the meaning of the word "farm" so as to exclude the other buildings thereon.s*" A lease, like any other conveyance, if of land bounded on a pub- lic or private way, prima facie passes the title to the center of the way if the lessor's title extends so far,**i and so, in the case 536 Patterson v. Graham, 40 III. Me. 546, it was held that if the lessor App. 399; Id., 140 111. 531, 30 N. E. "covenants" that "in connection with 668; Armstrong V. Crllly, 51 111. App. the above described premises" the 504; Hosher v. Hesterman, 58 111. lessee "may use, occupy and im- App. 265; People v. Gedney, 10 Hun P'°^«" ^^^ adjacent lot for garden (N. Y.) 151. But in Schmidt v. P^irposes, except such portions as the n .*•* o T^ /-, /i T.;r . ^u ^ i™« lessor may sell or use for building, Pettit, 8 D. C. (1 MacArthur) 179, ,, , , ^^ • * ^t, the lessee has the possession of the it is assumed that such a descrip- adjacent lot, so as to justify an ac tion passes the building only, and ^^^^ „j trespass by him against the not the land thereunder. landlord. It would seem rather that 537 Houghton V. Moore, 141 Mass. the lessee was given merely a license 437, 6 N. E. 517; Hosher v. Hester- to go ^^^n the adjacent land for a mann, 58 111. App. 265. particular purpose, for an interfer- 538 In Richardson v. Richardson, ence with which he could have sued 75 Mass. (9 Gray) 213, it was held' the lessor upon his convenant. Tha that the lessee of part of a house, theory of the decision does not clear- with a right "to have the improve- ly appear. ment of all the homestead land," did 539 Sheppard's Touchstone, 93. not empower the lessee to grant a 540 Hay v. Cumberland, 25 Barb, license to a third person to use such (N. Y.) 594. land. But in Bryant v. Sparrow, 62 541 See In re "White's Charities § 26 DESCRIPTION OF PREMISES. 271 of a lease of land bounded on a stream, the bed of which belongs to the lessor, the lessee Requires title to the middle of the stream.'** A lease of the "east half" of certain land prima facie conveys a half computed by quantity, and not with reference to a line equally distant from the East and West boundaries.s*^ It has been said that all things which are on the premises for the purpose of making, and which do make, them fit as premises for the particular purposes for which they are used, will pass by a demise of the premises of such.'** This statement should, how- ever, it seems, be taken with some qualification. A lease of a par- ticular residence, though referred to as such in the lease, would not, it is presumed, ordinarily pass all furniture placed therein in order to make it suitable for residence purposes. A lease does not pass to the lessee the right to things found by him on or in the premises, of which neither party knows at the time of the lease,'*' even though he has a license to excavate for building purposes, and to remove and dispose of the soil excavated in the course of such operations, and though he finds the thing in question while making such excavation.'*^ A lease of a part of a building prima facie passes the outer wall adjacent to the rooms or apartment named as a part of the prem- ises leased, and consequently the lessee has the exclusive right to [1898] 1 Ch. 659; Hooper v. Farns- under a lease, and it was held that worth, 128 Mass. 487. See cases machinery in a factory should be cited 2 Tiffany, Real Prop. § 392. considered in determining the rat- 5i2Ballance v. Peoria, 180 111. 29, able value of the factory. That a 54 N. B. 428; Dwyer v. Rich, Ir. R. conveyance of a factory by name, 6 C. L. 144. See 2 Tiffany, Real or by terms of description common- Prop: § 391. ly understood to embrace all its 543 Hartford Iron Min. Co. v. Cam- essential parts, ordinarily includes bria Min. Co., 80 Mich. 491, 45 N. W. machinery therein, see 13 Am. & 351 Eng. Enc. of Law (2d Ed.) at page 544 Lord Esher, M. R., in Tyne 668, article "Fixtures," by the pres- Boiler Works Co. v. Overseers of ent writer. Longbenton, 18 Q. B. Div. 81. This 545 Ferguson v. Ray, 44 Or. 557, was a rating case, and it was said 77 Pac. 600, 102 Am. St. Rep. 648 that the same standard would be (gold-bearing quartz deposited by applied in determing what was to be person unknown) . taken into consideration in determ- 546 Blwes v. Brigg Gas Co., 33 Ch. ing the ratable value of the premises Div. 562 (prehistoric boat). as In determining what would pass 272 CREATION OF THE RELATION. | 26 use such wall for advertising purposes.^*^ But the landlord, or the lessee of other parts of the building, no doubt retains an ease- ment in such walls for the purpose of supporting the balance of the building,^*^ and any serious changes in or injuries to the wall would be restrained. A lease of one of the lower floors of a building does not include the roof ,548^ and the same view has been taken of a. lease of the up- per floor,548b and, likewise, of a lease of all that part of the build- ing above the first floor.^**'' And even in the case of a one story building, the lease of a store therein has been construed as leav- ing the roof in the exclusive possession and control of the les- sQi.548a The lessee has, in such a case, of the lease of a part of the building, merely an easement in the roof for the purpose of protection from the weather.^**^ The lease of a floor or apartment ordinarily includes the ceiling thereof, so as to relieve the landlord from any obligations as to the repair of the ceiling during the tenancy.^**' d. Exceptions and reservations. The purpose and effect of an exception in a lease, as in any other conveyance, is to exclude from the operation thereof some part of that which is covered by the terms of the general description,549 while the office of a reser- vation is to secure to the grantor some new thing "issuing out of" 5*7 Riddle V. Littlefleld, 53 N. H. dan, 26 N. Y. 501; Harris v. Ryding, 503, 16 Am. Rep. 388; Baldwin v. 5 Mees. & "W. 60. Morgan, 43 Hun (N. Y.) 355; Lowell s^sa Shipley v. Fifty Associates, 101 V. Strahan, 145 Mass. 1, 12 N. E. 401, Mass. 251, 3 Am. Rep. 346. 1 Am. St. Rep. 422; Law v. Haley, 9 As to the lessor's liability for in- Obio Dec. 785; Carlisle Cafe Co. v. juries caused by defects In roof, see Muse, 67 Law J. Cb. 53, 77 Law T. post, § 88, at notes 326-337. (N. S.) 515. Fuller v. Rose, 110 548b o. J. Gude Co. v. Farley, 28 Mo. App. 344, 85 S. W. 931, contains Misc. 184, 58 N. Y. Supp. 1036. a dictum tbat the lessee of a room sisc Valentine v. Woods, 110 N. Y. in a building has no such right. Supp. 990. A lessee of a storeroom in a one- 54sa Macnair v. Ames (R. I.) 68 story building has no rights, it has Atl. 950. See Booth v. Gaither, 58 been held, as to the use or control 111. App. 263 ; Payne v. Irvin, 144 III. of the space on the outer wall above 482, 33 N. E. 756. the ceiling joists. Booth v. Gaither, sise See post, § 88, at note 328. 58 111. App. 263. B4sf See post, § 88, at note 319. 548 See McConnel v. Kibbe, 33 111. b49 Co. Litt. 21 a; Sheppard's 175, 85 Am. Dec. 265; Graves v. Ber- Touchstone, 77 et seq. §26 EXCEPTIONS AND RESERVATIONS. 273 the thing granted-^^o By the common-law authorities, and by the modern English cases, nothing can be the subject of a reservation but a "rent" or other service.^^i But in this country the expres- sion is applied as well to any clause by which, upon a conveyance of land, an easement or right of profit is reserved for the benefit of the grantor.^^2 The subject of an exception may be a part of the land itself, as when one makes a lease of certain described land, "saving and excepting" a specified part thereof, or it may be of the trees or other vegetable products of the soil growing thereon,^^^ or the minerals therein,^^* or of artificial annexations to the soil.**^" The term, ' ' exception ' ' is not infrequently applied to what may more properly be regarded as a reservation as creating a new right in_favor of the grantor or lessor, not previously existing, and so the term "reservation" is occasionally applied to what is properly as exception, as excluding from the operation of the conveyance some part of what would otherwise pass under the language of the description. The courts, in determining whether there is, in the particular case, an exception or a reservation, regard not the lan- guage used, but the character of the rights thereby created."' ^ An exception must be of part of the thing leased and not co-ex- tensive therewith, so as to be repugnant thereto."'^ Nor can it be of something already specifically leased, an exception, for instance, in a lease of twenty houses, of one of such houses, being void.''^ 550 Co. Litt. 47 a; Sheppard's 24 S. W. 142, 25 S. W. 932; Sloan v. Touchstone, 78. Lawrence Furnace Co., 29 Ohio St. 551 Durham & S. R. Co. v. "Walker, 568; Whitaker v. Brown, 46 Pa. 197; 2 Q. B. 940; Doe d. Douglas v. Micklethwait v. Winter, 6 Exch. 644 ; Lock, 2 Adol. & E. 705; Wickham v. Tucker v. Linger, 8 App. Cas. 508. Hawker, 7 Mees & W. 63; Corpora- 555 Washingt»n Mills Emery Mfg. tion of London r. Riggs, 13 Ch. Div. Co. v. Commercial Fire Ins. Co., 798. 13 Fed. 646; Badger v. Batavia Paper 652 See authorities cited Tiffany, Mfg. Co., 70 111. 302; Sanborn v. Real Prop. §§ 316, 383. Hoyt, 24 Me. 118; Leonard v. Clough, 553 Sheppard's Touchstone, 78; 133 N. Y. 292, 31 N. E. 93. Doe d. Douglas v. Lock, 2 Adol. & 556 2 Tiffany, Real Prop. § 383, E. 705; Jenney v. Brook, 6 Q. B. 323;' note 142. Heflin v. Bingham, 56 Ala. 566, 28 657 Sheppard's Touchstone, 78; Am. Rep. 776; Howard v. Lincoln, 13 Dorrell v. Collins, Cro. Bliz, 6. Me. 122; Putnam T. Tuttle, 76 Mass. bss sheppard's Touchstone (PreS' (10 Gray) 48. ton's Ed.) 78; Co. Lltt. 47 a. 65*Snoddy v. Bolen, 122 Mo. 479, L. and Ten. 18. 274 CREATION OF THE RELATION. § 27 The exception must also describe the part excepted with such cer- tainty that it may be identified.''^^ An exception of ' ' all the woods ' ' has been construed as an ex- ception of all the soil on which the wood is growing,*^^ and it has been held that an exception of all the woods, underwoods, and copse, includes the land thereunder, unless a contrary intention appear.5^1 But an exception of "timber trees" has been held not to cover the soil,^^^ and the same view has been taken of an ex- ception of "all timber trees, wood, underwood, etc/'^es § 27. Signing of the instrument. An instrument of lease, if intended to create an estate of such duration as to be within the statute of frauds, must be signed by the lessor in order to be operative,^^* unless perhaps the presence of his seal might be regarded as dispensing with the necessity of his signature.^^'* Even though there is no signature by the lessor satisfying the statute of frauds, if the lessee enters into possession and pays rent, he holds, accord- ing to some cases,^^^ as a periodic tenant upon the terms orally agreed upon, so far as they may be applicable to such a tenancy; and the writing, it seems, would be available in such case for the purpose of refreshing the recollection of either of the parties as to what were the agreed terms,^^'' and might also be admissible against either party as an admission in that respect, so far as it may have been adopted by such party .'^* Even though the ease is not within the statute of frauds, owing to the brevity of the interest intended to be created,^^^ it does not seem that such an unsigned writing would be admissible in evi- M9 Sheppard's Touchstone, 78. Langhran v. Smith, 75 N. Y. 205; 660 ive V. Sams, Cro. Eliz. 521. Clemens v. Broonfield, 19 Mo. 118. 561 Whistler v. Paslow, Cro. Jac. sos See Cherry v. Heming, 4 Exch. 487. 631; Cooch v. Goodman, 2 Q. B. 580; 562 Whistler v. Paslow, Cro. Jac. Pollock, Contracts (6th Ed.) 161; 487. And see Pincomb v. Thomas, Williams, Real Prop. (18th Ed.) 152; Cro. Jac. 524. Browne, Stat, of Frauds, § 9. 563Legh V. Heald, 1 Barn. & Adol. 566 See ante, § 25 g (2). 622. 567 See 1 Wigmore, Evidence, § 734 56^1 Mentzer v. Hudson Sav. Bank, et seq. 197 Mass. 325, 83 N. E. 1102; Nick- 568 See 2 Wigmore, Evidence, I oils v. Barnes, 32 Neb. 195, 49 N. W. 1048 et seq. 342; Id., 39 Neb. 103, 57 N. W. 990; 509 See ante, § 25 d. § 27 SIGNING OP THE INSTRUMENT. 275 dence to show the terms of the letting, it being indeed a legal nulli- ty ."^o and it would presumably be available, as in the other case, only to refresh the recollection of one of the parties as to the terms of the letting, or as an admission against his interest. The question whether an instrument of lease' not signed by the lessor, but signed by the lessee, can operate against the latter, so as to subject him to liability on covenants on his part contained therein, is considered in another connection,'^^! as is the question whether the lessee can be held liable on covenants on his part to be performed when the lessor alone signs the instrument.^^^ The first section of the English statute of frauds requires sign- ing merely "1by the parties making or creating" the leases or estates referred to in the statute. This seems plainly to mean that the lessor only need sign the lease ; and that the lease is valid to vest an interest in the lessee, although not signed by the latter, would no doubt be everywhere conceded.^''^ That a conveyance in fee simple is valid without the signature of the grantee is un- questioned, and greater formality could not be required in the con- veyance of a lesser estate. 570 In Harris v. Harper, 48 Kan. thought that the entry of the lessee 418, 29 Pac. 697, a different view validates a lease not signed by the seems to have been taken. There lessor. But In such case it is the the proposed lessee signed the lease permissive entry which creates a and handed it to the lessor to sign, tenancy. An entry by a lessee under but the latter failed to do so. The a lease not executed by the intend- lessee, however, took possession and ing lessor has no more effect in valid- cultivated the land, and it was held ating the lease than the entry of that the lease was valid, since the a grantee under an unsigned con- parties "had acted under it," and veyance in fee would have in validat- since also the lessee "signed the ing such a conveyance, lease" and the lessor "accepted it," s^i See post, I 53 a. the court comparing it to the case of =72 See post, § 53 b. the acceptance of a conveyance by ^73 See Crescent City Wharf ' & the grantee, which renders it bind- Lighter Co. v. Simpson, 77 Cal. 286, ing on the latter. It has never, how- 19 Pac. 426; Dodd v. Pasch, 5 Cal. ever, been decided that the grantor App. 686, 91 Pac. 166; Baltimore & is bound by a conveyance signed by O. R. Co. v. Winslow, 18 App. D. C. the grantee merely because he re- 438; Baragiano v. VlUani, 117 111. ceives it from the latter for signature App. 372; Lihbey v. Staples, 39 Me- without objection. Likewise, in 166; Braman v. Dodge, 100 Me. 143, Evans v. Conklln, 71 Hun, 536, 24 60 Atl. 799; Witman v. City of Read- N. Y. Supp. 1081, it seems to be ing, 191 Pa. 134, 43 Atl. 140. 276 CREATION OF THE RELATION. | 28 § 28. Sealing of the instrument. The requirement of the statute of frauds that a lease be in writing and signed by the lessor does not involve any necessity that the instrument be sealed by him.^''* In England it is provided by statute that a lease which is required to be in writing must be sealed,^^^ and occasionally in this country it is provided by statute that a lease creating an in- terest in land greater than a term of a specified number of years must be under seals'^® It has, in England, been decided that a lease, not complying with the statutory requirement of a seal, may be regarded as a valid contract for a lease,^^ 7 and so, ordinarily, in a court of equity, such a lease would be regarded as a contract for a lease, specifically enforcible, the lack of a seal being conse- quently, in such a court, immaterial.^''® 574 See Farmer v. Rogers, 2 Wils. terms provides that a "conveyance" 26; Boggard V. Gale, 107 Ill.App. 128; or a "deed" shall be under seal,. Lake v. Campbell, 18 111. 106; Hill without clearly stating whether this V. Woodman, 14 Me. 38 (semble); includes a lease. The word "con- Gay V. Ihm, 3 Mo. App. 588; Hunt veyance" would seem, prima facie aX V. Hazelton, 5 N. H. 216, 20 Am. Dec. least, to include a lease. The word 575; Den d. Mayberry v. Johnson, 18 "deed" itself properly means a sealed N. J. Law (3 J. S. Green) 116; Stod- instrument, as is recognized in Arb- dard v. Whiting, 46 N. Y. 627; enz v. Exley, Waltins & Co., 52 W. O'Brien v. Smith, 37 N. Y. St. Rep. Va. 476, 44 S. E. 149, 61 L. R. A. 41, 13 N. Y. Supp. 408; Id., 129 N. Y. 957, where the statute providing that 620, 29 N. B. 1029 ; Woolsey v. Henke, a lease for over five years shall be 125 Wis. 134, 103 N. W. 267; Browne, "by deed" is assumed to require a Stat, of Frauds, § 6. sealed instrument. 675 Stat. 8 & 9 Vict. c. 106. 577 See Bond v. Rosling, 1 Best & 576 See e. g., Connecticut Gen. St. S. 371; Rollason v. Leon, 7 Hurl. & 1892, §§ 4029, 4041 (Lease for over N. 73; Tidey v. Mollett, 16 C. B. (N. one year) ; Delaware Rev. Code 1893, S.) 298; Parker v. Taswell, 2 De Gex p. 866 (Unsealed lease good for one & J. 559. year only); Marj/Zorati Pub. Gen. Laws sts Such is the view adopted by a 1904, art. 21, §§ 1, 10 (Estate above court of equity in regard to an seven years) ; Michigan Comp. Laws unsealed conveyance in fee. Wads- 1897, § 8956 (semble) ; New Bamp- worth v. Wendell, 5 Johns. Ch. (N. shire Pub. St. 1901, c. 137, § 3 (sem- Y.) 224; Swltzer v. Knapps, 10 Iowa, ble); Ball. Ann. Codes Washington 72, 74 Am. Dec. 375; Jewell v. Hard- 1897, § 4568 (Lease for over one ing, 72 Me. 124; Brinkley v. Bethel, year); West Virginia Code 1906, § 56 Tenn. (9 Heisk.) 786; Frost 3020 (Lease for over five years) . v. Wolf, 77 Tex. 455, 14 S. W. 440, 19 Not infrequently the statute in Am. St. Rep. 761. § 23 SEALING OF THE INSTRUMENT. 277 If the intended lessee enters and pays a periodic rent, he will ordinarily be, at law, a periodic tenant upon the terms stated in the instrument, so far as they are applicable to a tenancy of that character,^''* as is one entering under a lease void under the stat- ute of frauds.s*° It has been said that a lease for a life or lives, as distinct from a lease for years, must, since it creates a freehold interest, be un- der seal.^81 This seems questionable, in the absence of any local statutory requirement to that effect. At common law a lease for life, as any other conveyance of a freehold interest, took effect by livery of seisin alone, and if the words of limitation necessary to create the estate intended were used,^*^ and witnesses were present who could prove the use of such words, it was entirely immaterial whether they were put in writingji^ss though writing, on account of its greater certainty, was ordinarily employed, and writings were usually sealed.584 jt ■^yas j^ot until the enaetment.of the statute . of frauds that livery of seisin was required to be accompanied by writing in order to create a freehold estate, and this statute, while requiring the writing to be signed, imposed no requirement of a B79 Stewart v. Apel, 4 Houst. (Del.) seal for the creation of a freehold 314, 5 Houst. 189; Arbenz v. Bxley, interest. "Watkins & Co., 52 W. Va. 476, 44 S. '^^^^ * conveyance in fee simple E 149 61 L R A 957 '^ perfectly valid, it would seem, without any seal, in the absence of a statutory requirement of a seal, or unless it is to be regarded as taking made without any discussion, m Doe ^^^^^ ^^ ^ conveyance by bargain d. Warner v. Browne, 8 East, 165 ^^^ ^^-y^ ^^^^ ^U^ ^^^^^^ ^j E^roH. (per Lawrence, J.) ; Browne v. War- ments is in force in the particular ner, 14Ves. Jr. 156 (perEldon.L. C). jurisdiction. See 2 Tiffany, Real These are referred to with apparent prop. § 403. There are, however, a dissaproval in Comyn, Landl. & Ten. number of cases which have decided p. 55, note. And that no seal was the contrary. Id. necessary, in the case of a lease for ssa No words of limitation were life, previous to the statute 8 & 9 necessary in the case of a lease for Vict., see 3 Preston, Abstracts of life. See Co. Litt. 42 a. Title, 114. To the same effect, ap- 5S3 Litt. §§ 214, 216; Co. Litt. 48 parently, is 2 Piatt, Leases, 3. The b, 121 b, 143 a; Sheppard's Touch- decision in People v. Gillis, 24 Wend, stone, 203. See Challis, Real Prop. (N. y.) 201, to the effect that a (2d Ed.) 363; 2 Pollock & Maitland, lease for life requires a seal, is Hist. Eng. Law (2d Ed.) 83. based on the local statutory provi- 584 Williams, Real Prop. (18th sion there referred to, requiring a Ed.) 147. 580 See ante, § 25 g (1). 581 There are dicta to that effect. 278 CREATION OF THE RELATION. § 29 seal. The common-law requirement of livery of seisin has been dispensed with by statute in some jurisdictions, and in others it would no doubt be regarded as obsolete, but the withdrawal of the necessity of livery does not, it is conceived, introduce any ne- cessity of sealing. But a lease of an incorporeal thing, for how- ever brief a period, must, at common law, be by deed, that is, by a sealed instrument, since it lies in grant and not in livery,585 and presumably this is the law in all jurisdictions where the effic- acy of a seal is still recognized and no statutory change has inter- vened.586 If, however, an incorporeal thing is appurtenant to land, it will ordinarily pass, though not expressly mentioned, by a lease of the land itself.^^'^ § 29. Attestation of the instrument. In some states an instrument of lease, in order to create an inter- est of a specified duration, is required to be witnessed.^^* In one state it has been held that a want of such attestation will prevent the vesting of any legal interest in the lessee,®*^ but it more usually aifeets merely the validity of the lease as against third persons without notice of its contents.**®^ § 30. Acknowledgment of the instrument. In many states it is provided by statute that an instrument of lease shall be acknowledged before an official.^"" Such a require- 585 Somerset v. Fogyrell, 5 Barn. & (Lease for over one year); Wiscon- C. 875; Mayfield v. Robinson, 7 Q. sin Rev. St. 1898, §§ 2216, 2326. B. 486; Williams, Real Prop. (18th 689 Richardson v. Bates, 8 Ohio Ed.) 472. St. 257, 32 Am. Dec. 707; Abbott v. 58S See cases cited 2 TifCany, Real Bosworth, 36 Ohio St. 605. So in Prop. § 403, note 333. Langmede v. Weaver, 65 Ohio St. 17, 587 See post, § 125. 60 N. E. 992, it is said that a lease 588 See e. g., Connecticu-t Gen. St. not witnessed as required by law is 1902, § 4041; Maryland Pub. Gen. at most a mere contract for a lease Laws 1904, art. 21, §§ 1, 10; MicM- and conveys no interest in the land. gan Oomp. Laws 1897, § 8962 (sem- ssga Weaver v. Coumbe, 15 Neb. ble); Minnesota Rev. Laws 1905, § 167, 17 N. W. 357; Johnson v. Phoe- 3346; NeI)rasJca Comp. St. 1905, § nix Mut Life Ins. Co., 46 Conn. 4754 (Lease for over one year) ; New 92; Ripley v. Cross, 111 Mass. 41. Hampshire Pub. St. 1901, c. 137, §§ ssoSee e. g., Kirby's Dig. St. 3, 4; Ohio Rev. St. 1906, § 4106; Ball. Arkansas 1904, § 742 et seq.; Cali- Ann. St. & Codes Washington § 4568 fornia Civ. Code, § 1161; Connecticut §31 DELIVERY OF THE INSTRUMENT. 279 ment is ordinarily imposed only as a preliminary to the record of the instrument for the purpose of charging a subsequent purchaser of the land with notice thereof, and, though unacknowledged, the instrument is eifective as between the parties.^^'^ Occasionally, however, the acknowledgment is regarded as necessary to render the instrument effective for any purpose.''*^ In some states the lack of acknowledgment, as a prerequisite to record, may be sup- plied by proof by the witnesses of its execution.^^s § 31. Delivery of the instrument. In order that a lease be effective to vest an interest in the lessee, it must be delivered,^^* that is, there must be an expression on the Gen. St. 1902, § 4041; Burns' Ann. St. Indiana 1901, i 3352; Maryland Code Pub. Gen. Laws 1904, art. 21, § 1; Michigan Comp. Laws 1897, §§ 8956, 8962; Minnesota Rev. Laws 1905, § 3348; Missouri Rev. St. 1899, § 906; Nehraska Comp. St. 1905, § 4755; 2 Gen. St. New Jersey p. 1036; New Hampshire Pub. St. 1901, c. 137, §§ 3, 4; Ohio Rev. St. 1906, § 4106; Yermont Pub. St. 1906, § 2581. In Toupin v. Peabody, 162 Mass. 473, 39 N. B. 280, it was decided that a lease for five years, with a covenant for renewal for five years, was a "lease for more than seven years from the making thereof," within a statute requiring such a lease to be recorded in order to be valid against a bona fide purchaser, so as to de- prive the lessee of the right to the renewal as against such a purchaser, if not recorded. The court reuses to say whether It would be invalid as against the purchaser as regards the first five-year term. 591 Johnson v. Phoenix Mut. Ins. Co., 46 Conn. 92; Lake v. Campbell, 18 111. 106; McCardell v. Williams, 19 R. I. 701, 36 Atl. 719; Wihelm v. Mertz, 4 G. Greene (Iowa) 54; Wea- ver V. Coumbe, 15 Neb. 167, 17 N. W. 357; Town of Lemington v. Stevens, 48 Vt. 38. 592 Anderson v. Critcher, 11 Gill & 3. (Md.) 450, 37 Am: Dec. 72; Bro- hawn V. Van Ness, 1 Cranch, C. C. 366, Fed. Cas. No. 1, 920; Richard- son V. Bates, 8 Ohio St. 257, 32 Am, Dec. 707. See Wm. W. Kendall Boot & Shoe Co. v. Bain, 55 Mo. App. 264. In McGlauflin v. Holman, 1 Wash. St. 239, 24 Pac. 439, it is decided that though a lease is not acknowl- edged, if the lessee has taken pos- session and made improvements, he is entitled to specific performance. And see Mounts v. Goranson, 29 Wash. 261, 69 Pac. 740. But see ante, § 25 g (5) as to the theory of specific performance of a lease. 593 See Michigan. Comp Laws 1897, § 89Q9; Minnesota Rev. Laws 1905, § 3347; 2 Gen. St. New Jersey p. 1036; NehrasTca Comp. St. 1905, § 4762; New York Real Prop. Law, § 241; Yermont Pub. St. 1906, §§ 2590-2596. 594 Piper V. Simpson, 6 Ont. App. 175; Howard v. Carpenter, 11 Md. 259; Jordan v. Davis, 108 111. 336; Kelsey v. Tourtelotte, 59 Pa. 184; Whitford v. Laidler, 94 N. Y. 145, 46 280 ■ CREATION OF THE RELATION. | 32 part of the lessor, by word or act, of his intention that the lease shall take effect.^^^ The requisites of a valid delivery in the case of a lease are no doubt the same as in the case of any other con- veyance. In order that there be a valid delivery, it is not neces- sary that the written instrument itself be physically transferred by the lessor to the lessee, or to a third person on his behalf.^^' And, on the other hand, though there is such physical transfer, it does not constitute a delivery, if it is for a special purpose and the instrument is not intended to take effect.^^^ The fact that the lessor has the lease recorded ordinarily raises a presumption of delivery, but this presumption may be overcome by evidence that there was no intent on his part that it should be- come immediately operative.^^* It has been said that the fact that the lessee has gone into possession of the land raises a pre- sumption of delivery of the lease,^®^ but this can be so, it seems, only if the entry is with the lessor 's consent. A lease, like any other conveyance, may be delivered in escrow, that is, it may be deposited with a third person to be held by him until the performance of a condition by the lessee, whereupon it will take effect as of the time when it was so deposited.®"" § 32. Acceptance of the instrument. In order that a lease may operate to vest an interest in the les- see, it is not necessary, it seems, according to the English decisions, that it be accepted by him, or, in other words, his acceptance will Am. Rep. 131; Stetson v. Briggs, 114 instrument was retained by the Cal. 511, 46 Pac. 603. lessee Instead of being returned to 595 See 2 Tiffany, Real Prop. § 406, the lessor as was intended, and al- where the writer has discussed the though an inventory of certain per- subject of delivery at some length. sonal property included In the lease 596 witman v. Reading, 191 Pa. was not attached to the copies of 134, 43 Atl. 140; Reynolds v. Green- the lease was intended. baum, 80 111. 416; Oneto v. Restano, sds See authorities cited 2 Tiffany, 89 Cal. 63, 26 Pac. 788. Real Prop., § 406. 597 Jordan v. Davis, 108 111. 336. 599 David Stevenson Brew. Co. v. And see cases cited 2 Tiffany, Real Culbertson, 18 Misc. 486, 41 N. Y. Prop., § 406, note 376. Supp. 1039. In Lawrence v. Bell, 132 Ala. 308, soo Gudgen v. Bessett, 6 El. & Bl. 31 So. 503, it was decided that there 986; Gorsuch v. Rutledge, 70 Md. was a sufficient delivery although 272; Wiitford v. Laidler, 94 N. Y. one of the duplicate copies of the 145, 46 Am. Rep. 131. § 33 RECORDING OF THE INSTRUMENT. 281 be presumed until he expresses his dissent.^o^ And this view would presumably be adopted in those states in which the courts have followed the English rule, that an acceptance of a conveyance in fee simple is not necessary to its validity .^'^^ In other states, however, in which a conveyance in fee simple is regarded as inval- id until accepted, a conveyance by way of lease would no doubt also be so regarded.*^^ But even in these states, if a lease is made to an infant, or other person, not sui juris, and it is of a beneficial character, it is valid even though not accepted by him, or, as it is sometimes expressed, there is in such case a presumption of ac- ceptance.*"* A lease to such a person is perfectly valid unless and until repudiated by him..^^ Though a lease is, as above stated, it seems, in some jurisdictions, valid, for the purpose of vesting an interest in the lessee, that is, as a conveyance, without any acceptance by him, he is not regard- ed as actually a tenant, as is explained later,^"^^ until he has en- tered on the premises. And until the lessee has in some way ac- cepted or adopted the lease, he cannot be held personally respon- sible upon the covenants contained in the instrument.*"^ His en- try on the premises is regarded as evidence of an acceptance for the purpose of imposing such liability on him.*"'' § 33. Recording of the instrument. The statutes of many of the states require that a lease for a term greater than a period named in the statute*"'^" shall be.re- 601 See 2 Piatt, Leases, 5; Gorton's 36 N. Y. Supp. 801; Majors v. Good- Case, 2 Rolle, Abr. 787; Thompson rich (Tex. Civ. App.) 54 S. W. 919; V. Leach, 2 Vent. 198, 201. Shelton v. Durham, 76 Mo. 434; 802 See authorities cited 2 Tiffany, Ahrns v. Chartiers "Valley Gas Co., Real Prop. § 407. 188 Pa. 249, 41 Atl. 739 (semble) ; 603 See State Board of Land Com'rs Goldberg v. Wood, 45 Misc. 327, 90 V. Carpenter, 16 Colo. App. 436, 66 N. Y. Supp. 427. Pac. 165; Leiter v. Pike, 127 111. 287, so? See post, § 53 b, at note 53. 20 N. E. 23; Castro v. Gaffey, 95 eoraA lease for five years with a Cal. 421, 31 Pac. 363; Burt v. Warne, covenant for renewal for five more 31 Mo. 296. years has been regarded as a lease «oi See authorities cited 2 Tiffany, for more than seven years, within Real Prop. p. 937, note 400. Also 19 a statute requiring the record of Harv. Law Rev. 612. such a lease. Toupin v. Peabody, 605 See ante, § 21 b (2). 162 Mass. 473, 39 N. E. 280; Leo- ooBaSee post, § 37. minster Gaslight Co. v. Hillery, 197 606 Adams v. Doelger, 15 Misc. 140, Mass. 267, 83 N. E. 870. 282 CREATION OF THE RELATION. 33 corded,8"8 -^yitji ^^e result that if not recorded it is invalid as against a bona fide purchaser for value from the lessor,*"^ or a subsequent lessee,®!" or, occasionally, as against creditors of the lessor .^11 Such a requirement that a lease be recorded, as in the case of conveyances in fee, does not usually affect the validity of the instrument as between the parties,®!^ or as against third per- sons other than purchasers.®!^ In two or three states, however, the statute has been construed as invalidating the instrument for all purposes if not recorded.®^* In states where the requirement of record is regarded as intend- 608 See e. g., Connecticut Gen. St. § 4041; Burn's Ann. St. Indiana 1901, § 3350 a; Maine Rev. St. 1903, c. 75, § 11; Maryland Code Pub. Gen. Laws 1904, art. 21, §§ 1, 10; Massachusetts Rev. Laws 1902, c. 127, § 4; New Hampshire Pub. St. 1901, c. 137, § 4; 1 Gen. St. New Jersey, p. 857; New York Real Prop. Law, §§ 240, 241; North DaTcota Rev. Codes 1905, § 5038; South Carolina Civ. Code 1902, §§ 214, 2456; South Dakota Civ. Code 1903, § 986; Vermont Pub. St. 1906, § 2581. It has been decided that a lease is a conveyance within a statute requir- ing a conveyance to be recorded in order to be effective as against a pur- chaser without notice. Milliken v. Faulk, 111 Ala. 658, 20 So. 594; Garber v. Gianella, 98 Cal. 527, 33 Pac. 458; Commercial Bank of Santa Ana V, Pritchard, 126 Cal. 600, 59 Pac. 130. Contra, Hutchinson v. Bramhall, 42 N. J. Eq. 372, 7 Atl. 873 (in view of other statutory pro- visions). In Faxon v. Ridge, 87 Mo. App. 299, it is decided that a lease is to be recorded in the real estate rec- ords, as being an "instrument where- by real estate may be affected," within the meaning of the statute. A mortgage of a leasehold is a con- veyance to be recorded among the real estate conveyances rather than among mortgages of chattels; see Westchester Trust Co. v. Hobby Bot- tling Co., 185 N. Y. 577, 78 N. E. 1114. 609 Milliken v. Faulk, 111 Ala. 658, 20 So. 594; Toupin v. Peabody, 162 Mass. 473, 39 N. E. 280; City Coun- cil of Charleston v. Page, Speer Bq. (S. C.) 159. 6ip Thompson v. Christie, 138 Pa. 230, 20 Atl. 934, 11 L. R. A. 236. Compare Hodge v. Giese, 43 N. J. Eq. 342, 11 Atl. 484. oiiClift V. Stockdon, 14 Ky. (4 Litt.) 215; Flower v. Pearce, 45 La. Ann. 853, 13 So. 150; Chapman v. Gray, 15 Mass. 439. •512 Johnson v. Phoenix Mut. Life Ins. Co., 46 Conn. 92; Baldwin v. Walker, 21 Conn. 168; Lake v. Camp- bell. 18 111. 106; Kittle v. St. John, 10 Neb. 605, 7 N. W. 271; Clarke v. Merrill, 51 N. H. 415. 613 Barnum v. Landon, 25 Conn. 137; Anthony v. New York, P. & B. R. Co., 162 Mass. 60, 37 N. B. 780. 81* Brohawn v. "Van Ness, 1 Cranch, C. C. 366, Fed. Cas. No. 1,920; And- erson V. Critcher, 11 Gill & J. (Md.) 450, 37 Am. Dec. 72; Polk v. Reyn- olds, 31 Md. 106; Baltimore & 0. R. Co. V. West, 57 Ohio St. 161, 49 N. B. 344. § 34 LEASE MADE BY AGENT. 283 ed for the protection of purchasers only, notice of the lease on the part of the purchaser will be as effective as record for the protec- tion of the lessee.«i5 in most jurisdictions,, presumably, the fact that the lessee is in possession of the premises would be sufficient to charge a purchaser with notice of the lease.6i« It has been decided, in jurisdictions where a lease is invalid as between the parties if not acknowledged or recorded, that the les- see entering thereunder and paying rent is to be regarded as ten- ant from year to year upon the terms of the lease except as to du- ration,®^^ and that he holds upon the terms of the lease has been asserted, without reference to the question of payment of rent.^^* Ordinarily, it would seem, in accordance with the rules previously stated,**^ the lessee so entering would be in the first place a tenant at will, becoming a tenant from year to year or month to month upon payment of rent by him, according as the rent is a yearly or a monthly rent, or he might perhaps be regarded as a periodic tenant even without the payment of a periodic rent, by reason of the reservation of such a rent.^i®* § 34. Lease made by agent, a. Agent's power to make lease. There have been occasional 615 Whittemore v. Smith, 50 Conn, heirs," the lessee entering thereun- 376; McCardell v. Williams, 19 R. der was, as regards a purchaser from I. 701, 36 Atl. 719; Anderson v. Har- the lessor, a tenant from year to ris, 1 Bailey Law (S. C.) 315. ' year upon the terms of the lease. 616 It is so decided in Scherer v. Since the lease was, hy the terms of Cuddy, 85 Cal. 270, 24 Pac. 713; the statute, valid as regards the Haworth v. Taylor, 108 111. 275; Lee- lessor, the peculiar result follows brick V. Stahle, 68 Iowa, 515, 27 N. that the lessee was a tenant for the W. 490; Dishrow v. Jones, Har. term of the lease so long as the (Mich.) 48. But see Jokinsky v. property was retained by the lessor, I Miller, 44 Misc. 239, 88 N. Y. Supp. and became a tenant from year [928. to year upon its conveyance to an- 617 Baltimore & O. R. Co. v. West, other. 57 Ohio St. 161, 49 N. E. 344. oi9 See ante, §§ 14 b (2) (b), 25 eisEmrich v. Union Stock Yard g (1). ^ Co., 86 Md. 482, 38 Atl. 943. ewa See ante, §§ 14 b (2) (b), 25 In Thurber v. Dwyer, 10 R. I. g (1). 355, it was decided that, though the In Baldwin v. Walker, 21 Conn, statute requiring a lease to be ac- 168; Wilson v. Griswold, 80 Conn, knowledged provided that it should be 14, 66 Atl. 783, it is apparently con- valid "between the parties and their sidered that if the statute requires 284 CREATION OF THE RELATION. § 34 decisions as to the authority of a person to make a lease or a par- ticular class of lease as agent on behalf of another. Thus it has been decided that one authorized to make a lease for three years cannot make one for that period with a provision for renewal,^*" and that one authorized to lease cannot bind his principal by a covenant to irrigate.^^^ Authority to collect rent does not in it- self authorize one to make a lease.^^^ There is one case in which it was apparently decided that an authority to take charge of land and obtain an income from it during the owner's absence from the country authorized the agent to make a lease, which was valid, however, only so long as the owner was absent.® 2* One taking possession under a lease made by one person pur- porting to act for another, but without authority from such other, does not become a tenant at will or periodic tenant under the as- serted principal, since his possession is without the letter's as- sent.® 2* The general rule as to the status of one entering imder an invalid lease®^^ cannot apply in such ease. If, however, the assert- ed principal accepts rent from the lessor, or otherwise expresses assent to his taking and holding of possession, the latter will be- come a tenant at will or periodic tenant, as the case may be. b. Form of authorization. The first section of the English statute requires leases to be in writing and signed by the parties making or creating the same, "or their agents thereunto lawfully the record only of leases for over the defendant© and entry upon the one year, a lease for five years, premis€s put an end to whatever though not recorded, is valid for estates the defendants (the lessees) one year. had acquired therein." It seems 82» Schumacher v. Pabst Brew. Co., that the court must have regarded 78 Minn. 50, 80 N. "W. 838. the agent as having authority in 621 Durkee v. Carr, 38 Or. 189, 63 effect only to make a lease subject Pac. 117. to a special limitation terminating it 622 Dieckman v. Weirich, 24 Ky. upon the owner's return, and that, Law Rep. 2340, 73 S. W. 1119. in so far as the lease undertook to 62SAntoni v. Belknap, 102 Mass. omit such limitation, ilt was in- 193. The authority given the agent valid. There is no statement of by the owner is stated to have been the grounds of the court's conclu- to "take charge of the land while sion. he was gone and make it pay the 624 Yellow Jacket Silver Min. Co. best way he could," and the court v. Stevenson, 5 Nev. 224. See San- says that "his return terminated ford v. Johnson, 24 Minn. 172. the agency; and his demand upon 625 See ante, §§ 14 b (2), 25 g 1. §34 LEASE MADE BY AGENT. 285 authorized by writing," while the fourth section merely requires that the agreements therein referred to be signed by some person "lawfully authorized," thus dispensing with any necessity that the authorization be in writing«26 In this country, in the states in which the provisions of the first section of the English statute have been substantially re-enactedjSZ'? the requirement that the agent's authority shall be in writing has been retained.^^s Jq other states, likewise, it is sometimes so provided, but in some the language of the fourth section, requiring the agent to be "law- fully authorized," is adopted, and occasionally it is provided mere- ly that the instrument shall be signed by the lessor "or his at- torney, "^zs 626 See Browne, Stat, of Frauds, § 370 a.. 627 See ante, note 344. • 828 See Williams v. Mershon, 57 N. J. Law, 242, 30 Atl. 619; Jen- nings V. McComb, 112 Pa. 518, 4 Atl. 812. But in Bless v. Jenkins, 129 Mo. 647, 31 S. W. 938, the specific requirement of the statute that the agent's authority shall be in writing seems to be ignored. Compare Leh- man V. Nolting, 56 Mo. App. 549; Shea V. Seelig, 89 Mo. App. 146. That the person purporting to acJt as agent puts the lessee in posses- sion does not validate the lease. Elliott v. Bankston (Ala.) 45 So. 173'. 629 Of the statutes enumerated in note 345 ante, as providing that no estate for more than one year shall be created except by writing, those of California, Colorado, Idaho, Kan- sas, Michigan, Minnesota, Nebraska, Nevada, New York North Dakota, Ohio, Oregon, South Dakota, Texas, Utah and Wisconsin require the agent's authority to be in writing. In those of Maine, Massachusetts, New Hampshire and Vermont, it is provided that it shall be signed by the lessor "or his attorney" In North Carolina the agent is required to be "lawfully- authorized." In those of Delaware, District of Co- lumbia, Georgia, Indiana, Kentucky, Mississippi, Rhode Island and West Virginia, there is no reference to an agent or attorney. See Borderre v. Den, 106 Cal. 594, 39 Pac. 946; Qqu.- d ert V. Cohn, 118 N. Y. 309, 23 N. E. 298, 7 L. R. A. 69, 16 Am. St. Rep. 761; Long v. Poth, 16 Misc. 85, 37 N. Y. Supp. 670; Chesebrough v. Pln- gree, 72 Mich. 438, 40 N. W. 747; Judd V. Arnold, 31 Minn. 430, 18 N. W. 151. In Toan v. Pline, 60 Mich. 385, 27 N. W. 557, it is said that "while the statute of frauds makes leases for more than one year in- valid if the agent is not authorized in writing, yet, where the lessee has been put in possession, and has en- joyed the premises for a full year, the executed agreement is good for that period at least, and is not within the statute." The cases cited In support of this statement involve applications of the doctrine of part performance. Of the statutes referred to in note 346, supra, as requiring an agree- ment or contract for leasing to be in writing, those of California, Mich- igan, Minnesota, Montana, North 286 CREATION OF THE RELATION. §34 The fact that the instrument of lease executed by the agent is under seal does not necessitate that the authority be under seal, if the lease is valid without a seal,®^" but if a seal is necessary to the lease, the authority must be under seal, this being in accord with the general rule in regard to the authority of agents®*^ e. Ratification. "Wliile a lease made by one who has no authority to make it is ordinarily not binding on the person for whom it purports to be made,®^^ j^ m^y i^g ratified by such per- son, that is, he may render it valid as against him by his subse- quent assent.*^^ The fact that one to whom a lease has been made by one acting without authority is permitted by the owner - to enter on the land has been regarded as showing a ratification,*34 and this conclusion is no doubt strengthened by the owner's re- Dakota, OMahoma, South Dakota and Utah require the authority of the agent to be in writing. Those ol Iowa, New York, Oregon and Wis- consin require merely that the agent be "lawfully authorized," while those of Colorado, Nebraska and Wyoming make no reference to a signature by an agent. Of the statutes enumerated in note 349, ante, providing that "no action shall be brought" on a lease if not in writing, those of Connec- ticut and Virginia merely provide that the writing shall be signed by ^'Ihe party to be charged" or his agent, while those of Arkansas, F'iOrida, Illinois, Kentucky, RlioJe Island and Tennessee require such aj:ent to be "lawfully" or "properly aiithorized," and that of Arizona makes no reference to a signa'.uie Tjy an agent. See Johnson v. Som- ers, 20 Tenn. (1 Humph.) 268. (■■so Marshall v. Rugg, 6 Wyo. 270. a Pac. 700, 45 Pac. 486, 33 L. R. A. 67S; Blefes v. Jenkins, 129 Mn. 647. 3 S. W. 938; Lehman v. Nol+ing, .56 Mo. App. 549; Mechem, Agency §§ ■95, 141. «3iLobdell V. Mason, 71 Miss. 937; Huffcut, Agency (,2d Ed.) § 26. 632 See Moore v. Rankin, 33 Misc. 749, 67 N. Y, Supp. 179; Hodges v. Howard, 5 R. I. 149. 6S3 So a lease made by an agent of a corporation may be ratified by the corporation. Swartzwelder v. U. S. Bank, 24 Ky. (1 J. J. Marsh) 38; Brahn v. Jersey City Forge Co., 38 N. J. Law, 74. See Clement v Young-McShea Amusement Co., 70 N. J. Eq. 677, 67 Atl. 82. In Anderson v. Conner, 43 Misc. 384, 87 N. Y. Supp. 449, it appears to be decided that the principal may ratify the lease though the agent in making it purported to be acting for himself and not for another. This does not accord with the general rule as to what acts are capable of rati- fication. See Huffcut, Agency (2d Ed.) 44; Hamlin v. Sears, 82 N. Y. 327. 634Hallberg v. Brosseau, 64 111. App. 520. Allowing the lessee to occupy and giving the lease in evi- dence was held to show ratification, in McClain v. Malone, 5 Ind. 237. §34 LEASE MADE BY AGENT. 287 ceipt of rent.^*" The principal's acceptance of rent alone may show a ratification,®^* if this is with knowledge of the terms of the letting.837 "When the agent 's authority is required to be in writing, a ratifi- cation of a lease made by an agent must be in writing, while if the original authority may be oral, the ratification may be oral."^^ d. Form and execution of lease. One undertaking to make a lease under seal as agent for another must, ordinarily, provided the seal is not superfluous, execute the lease in the name of his principal and not in his own name.®^'' It has haen decided, how- ever, that though the instrument named the agent as the party of the first part, it might, if signed by the principal as such party, be regarded as the act of the latter.^*" A lease not required to be un- der seal is properly executed in the same way, but is, it seems, val- id though executed in the name of the agent.®*^ If a lease appears to be the act of the lessor in his own behalf, 6S5 Brahn v. Jersey City Forge Co., 38 N. J. Law, 74. 8se Kriz v. Peege, 119 Wis. 105, 95 N. W. 108. 637 Yellow Jacket Silver Min. Co. V. Stevenson, 5 Nev. 225; Galewski V. Appelbaum, 32 Misc. 203, 65 N. Y. Supp. 694. 638 Bless V. Jenkins, 129 Mo. 647, 31 S. W. 938; Judd v. Arnold, 31 Minn. 430, 18 N. W. 151; Long v. Poth, 16 Misc. 85, 37 N. Y. Supp. 670; McDowell v. Simpson, 3 Watts (Pa.) 129, 27 Am. Dec. 338; Dumn V. Rothermel, 112 Pa. 272, 3 Atl. 800; Williams v. Mershon, 57 N. J. Law, 242, 30 Atl. 619. But see And- erson V. Conner, 43 Misc. 384, 87 N. Y. Supp. 449. If the lease is made without the necessary written authority, it has been held, a conveyance of the prem- ises which excepts the lease from the general warranty therein con- stitutes a valid ratification. Chris- topher V. National Brewing Co., 72 Mo. App. 121. In Kriz v. Peege, 119 Wis. 105, 95 N. W. 108, Involving an action for rent, while the statute required a lease to be signed by the maker or his agent authorized in writing, the ratification was oral merely. The court says that this "made a good contract for a lease, enforceable in equity as from the date thereof, and binding upon the lessee at law as regards the rent, so long as the enjoyment of the property actually continued." No explanation of this language is given. Perhaps it has reference to the equitable doctrine of part performance of a lease in- valid under the statute of frauds. Ante, § 25 g (5). 639 Murray v. Armstrong, 11 Mo. 209; Potter v. Bassett, 35 Mo. App. 417; Harms v. McCormick, 132 111. 104, 22 N. E. 511. See Huffcut, Agency (2d Ed.) § 127. 640 Northwestern Distilling Co. v. Brant, 69 111. 658, 18 Am. Rep. 631; Douglass V. Branch Bank, 19 Ala. 659. 641 See 1 Clark & Skyles, Agency, p. 672; Hu«cut, Agency (2d Ed.) 251. 288 CREATION OF THE RELATION. § 35 the lessee cannot ordinarily show that the lessor acted in making it as the agent of another,**^ since this would involve an assertion by the tenant of defects in the lessor's title.^** But an undisclosed principal may, if the instrument is not under seal, ordinarily sue upon the contractual stipulations entered into by the lessee, in accordance with the general rule applicable in favor of undis- closed principals.*^* § 35. Lease made on Sunday. The fact that a lease was made on Sunday has been regarded as rendering the whole transaction invalid,^*^ and the fact that the lessee took possession of the land does not, it has been decided, ren- der him liable under his express contract to pay rent,®*^ nor jus- tify a reference to the lease in order to ascertain the terms of the holding.647 The lessee taking possession is, however, liable in use ' and occupation,*'** and he may become liable as for rent by his conduct in paying instalments of rent or otherwise.®*^ In one ease^^" it is somewhat ambiguously said that the lease, though in- valid, might be looked to as a circumstance, with others, to ac- count for the after conduct of the parties in relation to the posses- sion of the premises, and it was held, apparently, that the making of the invalid lease for a year was CAddence to show that the lessee was entitled to retain possession for that time. § 36. Construction of the instrument. The courts have in particular cases had occasion, in construing the language of an instrument of lease, to apply certain general rules applicable in the construction of all written instruments.*'*^ 042 Holt V. Martin, 51 Pa. 499; i!« vinz v. Beatty, 61 Wis. 645, 21 Seyfert v. Bean, 83 Pa. 450; Kendall N. W. 787. V. Garland, 59 Mass. (5 Gush.) 74. "s stebbins v. Peck, 74 Mass. (8 643 See post, § 78 j. Gray) 553; Mclntosb v. Lee, 57 Iowa, 356, 10 N. W. 895. 849 See Vinz v. Beatty, 61 Wis. 645, 21 N. W. 787. «5o Rainey v. Gapps, 22 Ala. 288. "6 Mcintosh v. Lee, 57 Iowa, 356, ^si These general rules are sum- 10' N. W. 895. But see Bostic Co. v. marized by the present writer in Eggleston (Ind. T.) 104 S. W. 566, 17 Am. & Eng. Enc. Law (2d Ed.) to the contrary. p. j. 644 See post, § 56 b. 645 See authorities cited in the notes next following. 36 CONSTBUCTION OF INSTRUMENT. 289 The object being to discover the intention of the parties,^^^ the language of the whole instrument will be considered with this in view,653 and inconsistent clauses may be ignored as being the re- sult of mistake.«5* The circumstances existing at the time of the making of the lease may be considered for the purpose of arriving at the meaning of the parties.^ss Likewise, the construction placed by the parties themselves on the language used may be con- sidered^Be in case of doubt as to its meaning.*^'^ It is said that, in case of doubt,*'* the lessee is to be favored rather than the lessor.*"® If the instrument contains both written and printed language, and any inconsistency exists between them, effect should be given to the former rather than to the latter.**© If two or more instruments can be regarded as part of one trans- action, they should be construed together.**^ ^ 652 Raymond v. Hodgson, 55 111. App. 423; Anzolone v. Paskuz, 96 App. Div. 188, 89 N. Y. Supp. 203; New York v. United States Trust Co., 116 App. Div. 349, 101 N. Y. Supp. 574. 853 Union Water Power Co. v. Lew- iston, 95 Me. 171, 49 Atl. 878; Siegel, Cooper & Co. v. Colby, 176 111. 210, 52 N. E. 917; Barrett v. Johnson, 2 Ind. App. 25, 27 N. E. 933; Harlow V. Lake Superior Iron Co., 36 Mich. 105. 65* Siegel, Cooper & Co. v. Colby, 176 111. 210, 52 N. E. 917. 655 Waring v. Louisville & N. R. Co., 19 Fed. 863; Rubens v. Hill,. 115 111. App. 565; Edwards v. McLean, 122 N. Y. 302, 25 N. E. 483; In re Reading Iron Works, 150 Pa. 369, 24 Atl. 617; Swigert v. Hartzel, 20 Pa. Super. Ct. 656. 666 Herscher v. Brazier, 38 111. App. 654; Wood v. Edison Elec. Illuminat- ing Co., 184 Mass. 523, 69 N. E. 364; Oglesby's Ex'r v. Hughes, 96 Va. 115, 30 S. E. 439; Hard v. Brown, 18 Vt. 87; Swigert v. Hartzell, 20 Pa. Super. Ct. 56. 657 Diamond Plate-Glass Co. v. Tennell, 22 Ind. App. 132, 52 N. E. 168. 668 See Pere Marquette R. Co. v. Wabash R. Co., 141 Mich. 215, 12 Det. Leg. N. 466, 104 N. W. 650. 659 Co. Litt. 42 a; Doe d. Webb v. Dixon, 9 Bast, 15; Dann v. Spurrier, 3 Bos. & P. 399; Bryden v. Northrup, 68 111. App. 233; Broadway & S. A. R. Co. V. Metzger, 27 Abb. N. C. 160, 15 N. y. Supp. 662; Windsor Hotel Co. v. Hawk, 49 How. Pr. (N. Y.) 257; Henderson v. Schuylkill Valley Clay Mfg. Co., 24 Pa. Super. Ct. 422. But see, as to leases signed by both lessor and lessee, Sheppard's Touchstone, 86; 2 Blackst. Comm. 380; Beckwith v. Howard, 6 R. I. 1; Richardson v. Palmer, 38 N. H. 218; Palmer v. Evangelical Baptist Ben. & Mission- ary Soc, 166 Mass. 143, 43 N. E. 1028. 660 Seaver v. Thompson, 189 111. 158, 59 N. E. 553; Ball v. Wyeth, 90 Mass. (8 Allen) 275; Wilcox v. Mon- tour Iron & Steel Co., 147 Pa. 540, 23 Atl. 840. 661 New England Loan & Trust Co. V. Workman, 71 Mo. App. 275. Com- L. and Ten. 19. 290 CREATION OF THE RELATION. | 37 § 37. Necessity of entry — Interesse termini. In the ease of a lease for a term of years, even though the term is limited to commence immediately, the lessee is not regarded as a tenant until he enters upon the land, and he is said to have an int&resse iermini/'^- as is one named as lessee of a term to com- mence in futuro.^^^ A release to one who has not entered under his lease cannot, at common law, operate to enlarge his interest, for the reason that "a release which enures by way of enlarging an estate cannot work without a possession."^"* And it is said that the lessor ' ' cannot grant away the reversion by the name of reversion, before entry. ' ' ^^^ On the other hand, the lessee may, before entry, grant his interest to another.®^® Although the lessor die before the les- see enters, his right of entry remains, and, if the lessee die before entry, his exeeSitors or administrators may enter.®®^ Until entry, the lessee cannot bring trespass, for the reason that the action of trespass is based on possession.^^s Though at common law a lessee who has not entered is not capa- ble of taking a release so as to enlarge his estate, still, by means of a lease taking effect as a bargain and sale under the statute of uses, possession sufBcient for this purpose may be given to the les- see without any actual entry by him."®' It is on this principal that is based the conveyance by "lease and release," at one time in constant use in England."'"' A lessee by bargain and sale under pare Anderson v. Winton, 136 Ala. Thorogood, Cro. Eliz. 127. So he 422, 34 So. 962; Clark v. Gerke, 104 may make a sublease. Doe d. Pars- Md. 504, 65 Atl. 326. ley v. Day, 2 Q. B. 147; Chung Yow 662 Co. Litt. 46 h; 2 Blackst. t. Hoh Chong, 11 Or. 220, 4 Pac. 326. Comm. 144; Caldwell v. Center, 30 serLitt. § 66; Co. Litt. 46 b. Cal. 539, 89 Am. Dec. 131; James v. ees Harrison v. Blackburn, 17 C. Kibler's Adm'r, 94 Va. 165, 26 S. E. B. (N. S.) 678; Ryan v. Clark, 14 417 (semble). Q. B. 65; Wallis v. Hands [1893] 2 663 See ante § 12, b (1). Ch. 75; Heilbron v. Heinlen, 72 Cal. 664 Co. Lltt. 270 a. To the same 371, 14 Pac. 22. effect, see Litt. § 459; Sheppard's 669 Iseham v. Morrice, Cro. Car. Touchstone, 324. It will, however, 109; Barker v. Keat, 2 Mod. 249; Bac. extinguish the rent. Id. Abr., Leases (M.); 2 Preston, Con- 665 Co. Litt. 46 b; Iseham v. Mor- veyancing, 217. rice, Cro. Car. 109. 6to See Tiffany, Real Prop. pp. 207, 666 Co. Litt. 46 b; Wheeler v. 213. § 37 NECESSITY OF ENTRY. 291 the statute of uses has not, however, such possession that he can maintain trespass before entry.®^i It has been quite frequently stated that a lessee has no estate in the land until entry .«" On this theory it has been decided that the lessee has, before entry, no interest subject to execution,*''* and, apparently, that until he enters himself he cannot authorize an entry by another.*^* In England there is even a decision, ignored by the text books, that if the lessor makes another con- veyance before entry by the lessee, the grantee therein takes free from any claim on the part of the lessee.^'^s j^^ there it has also been obscurely suggested that, before the lessee 's entry, words of leasing must be regarded as creating merely a contract for a lease.*^* There are also decisions to the effect that before entry the lessee cannot bring ejectment,*^'' though there are, quite as many to the opposite effect.®'^* It has, in a modern English case, been decided that a lessee who has not entered has not a mere contractual right, but a right in rem, a proprietary right, justify- ing an action for damages against one who so injures the premises that he cannot take possession.*'^* The view that a lessee has no estate in the land merely because 671 Lutwich V. Mitton, Cro. Jac. he has no right to the crops as 604; Geary v. Bearcroft, Cart. 57, against the lessor retaining posses- 66; Pollock & Wright, Possession, 56. sion. The opinion Is, however, so 6-2 2 Blackst. Comm. 144 (citing obscure as to be almost meaningless. Co. Litt. 46, which does not sup- 675 Miller v. Green, 8 Bing, 92, 2 port it); 1 Piatt, Leases, 22; Wil- Cromp. & J. 142. liams. Real Prop. (18th Ed.) 475; 676 See ante, § 25 d, at notes 389- 2 Preston, Conveyancing, 145; Wil- 393. cox V. Bostick, 57 S. C. 151, 35 S. E. 677 Petroleum Co. v. Coal, Coke & 496; Bunch v. Elizabeth City Lum- Mfg. Co., 89 Tenn. 381; Sennett v. ber Co., 134 N. C. 116, 46 S. E. 24. Bucher, 3 Pen. & W. (.Pa.) 392; Wil- 673 Crane v. O'Connor, 4 Edw. Ch. cox v. Bostick, 57 S. C. 151, 35 S. (N. Y.) 409. E. 496. 674 Austin V. Huntsville Coal & 678 Doe d. Parsley v. Day, 2 Q. B. Min. Co., 72 Mo. 535, 37 Am. Rep. 147; Cleveland v. Boice, 21 U. C. Q. B. 446 (case of a lease of strata of 609; Trull v. Granger, 8 N. Y. (4 coal). • Seld.) 115; Becar v. Flues, 64 N. Y. Crotty V. Collins, 13 111. 567, 518; Whitney v. Allaire, 1 N. Y. (1 may be mentioned in this connec- Comst.) 305. See Adams, Ejectment, tion. It seems to say that if the 60; Berrington v. Casey, 78 111. 317. lessee undertakes to enter against 679 Gillard v. Cheshire Lines Com- the wish of the lessor, although his mittee, 32 Wkly. Rep. 943. (Brett, lease gives him the right to do so, M. R.. Bowen and Fry, L. J. J.) 292 CREATION OF THE RELATION. § 37 he has not entered is difficnlt to comprehend. His interest is refer- red to by Coke and others of the older writers as an " estate, ' '^^'^ and the statement occasionally found, to the effect that entry is not necessary to the vesting of a "term of years" in the lessee,'^! seems to be in effect that an estate for years vests before entry, "term of years" and "estate for years" being equivalent expres- sions. That one -who has not entered is not a tenant is readily comprehensible, but that one who has an immediate right of ex- clusive possession and control for a term of years should not have an estate for years, merely because he has not entered upon the land, seems to involve a subversion of the conception of an estate which has ordinarily prevailed since the abolition of the require- ment of livery of seisin. A statutory conveyance of an estate in fee simple without doubt vests an estate in the grantee before en- try, and it is difficult to see why a common-law conveyance of an estate for years should have any less effect. The interest of a lessee under a lease in praesenti before entry, it may be remarked, would seem on principle entirely different from that of one in favor of whom a term has been limited to commence in futuro only, and the fact that the same expression, interesse termini, is applied to the two classes of interests, does not seem a sufficient reason for regarding them as similar in character.^*^ 680 Coke says (Oo. Lltt. 46 b) : 8S2, The difference is referred to in "A release to him is not good to Saffyn's Case, 5 Coke, 125, where, as increase his estate"; and in Saffyn's reported by Coke, the court said: Case, 5 Coke, 125, it was said that "if a man leases tenements for "if a man makes a lease for years, in years, by force of which the lessee this case before the lessee enters, he is seised, that is, possessed, and has an estate for years in the land, afterwards the lessor by his deed which he may grant." In Shep- grants the reversion to another for pard's Touchstone, 324, and Bac. life, it is necessary in such case that Abr., Leases (M), the statement is the tenant for term of years attorn; made, following Coke, that the les- by which it appears that before the see's "estate" cannot, before entry, lessee enters he has not actual pos- be enlarged by a release. session, nor (as it seems) the lessor 681 Williams v. Bosanquet, 1 Brod. has not such a reversion that he can & B. 238; Ryan v. Clarke, 14 Q. B. grant it over by the name of re- 65; Harrison v. Blackburn, 17 C. B. version, but yet such lessee has more (N. S.) 678. So Coke says: "The than he who has a future interest, interest of the term doth pass and for he may presently enter and take vest In the lessee before entry." Co. the profits." Utt. 51 b. § 38 FRAUD. 293 As regards the right of the lessee, before entry, to maintain ejectment for the premises, it would seem that the cases asserting that right are in accord with the modern rule that this action may be maintained by any person having a right to the possession. In former times, when it was necessary, to support ejectment, that a termor should have been actually ejected from the land,*^^ the action could evidently not be maintained by a lessee who had not entered, either by. himself or his sublessee; but after the introduc- tion of the fictions in ejectment, by which one entitled to land was enabled to maintain the action without any actual entry or ouster, a lessee, it would seem, was in as good a position for this purpose before as after entry, and the later abolition of the fictions could not well place him in a worse position in this regard. As regards the necessity of an entry in the case of a lease at will, as distinguished from a lease for a term of years, there are but few authorities. It seems clear that until entry he does not become actually a tenant,®** and the decisions distinguish be- tween the case of a lease at will and one for years to the extent of holding that one who has not entered under a lease at will is not liable for the rent reserved,®*^ while one who has not entered un- der a lease for years is so liable if he voluntarily refrained from entering.®*® Why this difference should exist is not explained. And it would seem that one to whom the owner has made a lease expressed to be at will, or to whom mere permission to take pos- session has been given, might, before entry, be regarded as having rights in the land analogous to those of a lessee for years who has not entered, and, if he has agreed to pay rent from the date of the letting, he should be liable accordingly. I 38. Fraud in creation of the relation, a. Fraud on part of lessee. A lease, like any other transfer, ess Adams, Eiect,ment, 9. from the day the tenant enters into 684 In Den d. Pollock v. Kittrell, possession." 4 N. C. 585 (Term 152), it was de- «85 Bellasls v. Burbrick, Holt, cided that a lessee at will who has 199, 1 Salk. 209, 1 Ld. Raym. 170; not entered cannot maintain eject- Anonymxjus, 1 Vent. 41; Jeakil v. ment, since "before entry the lease Linne, Het. 54; Anonymous, Dal. 44, is a bare contract." pl. 30; "Williams v. Bosanquet, 1 In Hardy v. Winter, 38 Mo. 106, Brod. & B. 238, 257. it is said that "a tenancy at will, ese See post, § 182 b. without writing, commence only 294 CREATION OP THE RELATION. 38 may be set aside by the person making the transfer, that is the lessor, on the ground that it was procured by fraud or undue in- fluence.*87 The mere failure by the lessee to perform his agree- ments is, however, generally speaking at least, insufficient for this purpose.**® The right to assert the invalidity of the lease is not affected by the lessor's acceptance of rent thereunder before he learns of the fraud.**® But he cannot have the lease set aside as against an innocent purchaser of the leasehold for value.*^" b. Fraud on part of lessor. The question of what constitutes such fraud upon the part of the lessor as will entitle the lessee to relief from liability upon his stipulations in the lease, such as that for rent, is one to which it is practically impossible to give any satisfactory answer. It is but a phase of the general question, which may arise in the case of any contract, as to what constitutes fraud relieving a party from liability thereon, and as to this the 6&7 See Gillespie v. Holland, 40 Ark. 28, 40 Am. Rep. 1; Dickson v. Kempinsky, 96 Mo. 252, 9 S. W. 618; Christie v. Blakeley (Pa.) 15 Atl. 874; Rorer Iron Co. v. Trout, 83 Va. 397, 2 S. B. 713, 5 Am. St. Rep. 285. Compare Feret v. Hill, 15 C. B. 207, which decides that the fraud does not affect the validity of the lease at law. See Pollock, Contracts (7th Ed.) 371, note (k). So the landlord has been held en- titled to rescind the lease on ac- count of fraudulent misrepresenta- tions by the lessee as to his solvency. Martin v. Davis, 96 Iowa, 718, 65 N. W. 1001. Compare Olden V. Sassman, 67 N. J. Eq. 239, 57 Atl. 1075, Id., 68 N. J. Eq. 799, 64 Atl. 1134. In Newcome v. Swing, 19 Ky. Law Rep. 821, 42 S. W. 105, it was decided that, in case the lease was procured by fraudulent representations on the part of the lessee that personal prop- erty mortgaged by him to secure the rent was unincumbered, the lessee would be enjoined from taking pos- session, though the lessee might have discovered the presence of the incum- brances by an examination of the records. 688 Love V. Teter, 24 W. Va. 741. In Anderson v. Hammon, 19 Or. 446, 24 Pac. 228, 20 Am. St. Rep. 832, where one had procured a lease of an orchard by covenanting to prop- erly prune and cultivate it, and failed to do so, it was held that equity would "cancel" the lease to prevent the waste and destruction. It does not appear whether the court ■considered the lessee's conduct as fraudulent, or on exactly what prin- ciple relief was granted. Even con- ceding that the failure to perform such covenants constitute waste, which seems doubtful, cancellation of the lease is not an ordinary mode of preventing further waste. Post, § 109 b. 889 United Order of American Bricklayers & Stone Masons v. Fitzgerald, 59 111. App. 362. 6i)i> Isom V. Rex Crude Oil Co., 147 Cal. 659, 82 Pac. 317; Hubbard v. Cook, 82 C. C. A. 508, 153 Fed. 554. 38 FRAUD. 295 eases are in a state of very considerable confusion. It will here be attempted only to state the decisions actually involving the ques- tion of the existence of fraud relieving a lessee from liability. In a number of cases misstatements by the lessor as to the char- acter or quality of the premises have been regarded as constituting fraud on his part. Such a view has been taken of misstatements as to the number of acres on the premises which were suitable for cultivation,®^! the capacity of a mill on the premises,®®^ the suffi- ciency of the strength of the building for the lessee's purposes,®'^ the income producing value of the property,*®* the sufficiency of the heating appliances, ®®*'' the soundness of the plumbing, ®** the sufficiency of the water supply,*®® the dryness of the ground.*®'' 631 Mitchell v. Zimmerman, 4 Tex. 75, 51 Am. Dec. 717. 692 Cage V. Phillips, 38 Ala. 382. 693 Barr v. Kimball, 43 Neb. 766, 62 N. W. 196; Myers v. Rosenback, 13 Misc. 145, 34 N. Y. Supp. 63. See Hinsdale v. McCune, 135 Iowa, 329, 113 N. W. 478. 694 Irving V. Thomas, 18 Me. 418. 694a Bauer v. Taylor, 4 Neb. tJnofC. 710, 98 N. W. 29. 6»5 Pursel v. Teller, 10 Colo. App. 488, 51 Pac. 436. Where the owner had constructed a sewer for the premises with ordinary care, the fact that he stated to the intending lessee that there was an excellent sewer connected with the stores, which would mabe the premises clean, was held not to show fraud, it being merely an expression of opinion, and the sewer failing only in the case of an unusual storm. Wilkinson v. Clauson, 29 Minn. 91, 12 N. W. 147. In Daly v. Wise, 132 N. Y. 306, 30 N. B. 837, statements as to the plumbing were held not to be fraudulent and so ground for re- scission. The opinion is rather ob- scure. And see post, at note 713, as to failure to mention sewer gas. 696 Sisson V. Kaper, 105 Iowa, 599, 75 N. W. 490; Merritt v. Dufur, 99 Iowa, 211, 68 N. W. 553; Jamison v. Ellsworth, 115 Iowa, 90, 87 N. W. 723. But in Stein v. Rice, 23 Misc. 348, 51 N. Y. Supp. 320, it was held that the lessor's failure to mention that at times the water supply for the neighborhood was inadequate did not constitute fraud authorizing a rescission, though the supply failed! during the year of the lease to an unusual degree. And see, to the effect that false representations in this regard are no defence to a claim for rent, Bowen v. Hatch (Tex. Civ. App.) 34 S. W. 330. 697 Baker v. Fawcett, 69 111. App. 300. In Dennison v. Grove, 52 N. J. Law, 144, 19 Atl. 186, it was regarded as a question for the jury, under the circumstances, whether a mis- representation in this regard was an expression of opinion, merely, or a misstatement of fact justifying rescission. In Jones v. Hathaway, 77 Ind. 14, it was decided that a misstatement in this regard, with the result that the lessee's crop was spoilt, involved a "failure of consideration" consti- tuting a defense to a claim for rent. 296 CREATION OP THE RELATION. | 38 On the other hand, the courts have occasionally refused to give any effect to such statements, if made in regard to matters which were apparent on inspection.^^s it -w^as in one case regarded as a question for the jury, under the particular circumstances, whether a statement as to the character of the ground was merely an ex- pression of opinion or was a misstatement of fact authorizing rescission,«99 and in another it was left to the jury to say whether the lessee exercised reasonable care in relying on the lessor's statement.'' o" The fact that the lessor persisted in his statement after the lessee had told him that he would rely thereon, instead of examining the premises, appears to have been regarded as re- lieving the lessee from liability under the lease, when the mere false statement might not have had that effect.'"'^ As a general rule false representations, to constitute fraud, must relate to some existing fact, and the mere breach of a prom- ise to do something cannot be treated as a fraud.^''^ And so it has been decided that the breach of an agreement by the lessor to make improvements cannot be asserted as a fraud.''*'^ But a de- cision is to be found that a false statement that the lessor would lease the adjoining premises to the lessee was a defense to a claim for rent.''** Ordinarily, statements which amount to mere ex- pressions of opinion or expectation, as distinct from statements of The theory of fraud seems decidedly too Ladner v. Balsley, 103 Iowa, preferable to the introduction of this 674, 72 N. W. 787. much abused phrase, "failure of con- roi Jackson v. Odell, 14 Abb. N. C. sideration." (N. Y.) 42. 698 Merritt v. Dufur, 99 Iowa, 211, 702 See Wilcox v. Palmer, 163 Pa. 68 N. W. 553; Boyer v. Commercial 109, 29 Atl. 757. Bldg. Inv. Co., 110 Iowa, 491, 81 N. tos Lynch v. Sauer, 16 Misc. 1, 37 W. 720; Oppenheimer v. Clunie, 142 N. Y. Supp. 666. Cal. 313, 75 Pac. 899 (dictum). In 704 Rand, McNally & Co. v. Wick- Lewis v. Clark, 86 Md. 327, 37 Atl. ham, 60 Mo. App. 44. 1035, It is said that "the appellant In Hill v. Rudd, 99 Ky. 178, 35 S. (the lessee) could have verified the W. 270, it is decided that the lessee correctness of the representations cannot rescind on the ground that concerning the quality of the water, one of the lessors failed to buy groc- without serious Inconvenience to eries from the lessee as he had prom- himself, if he had thought proper to ised to do in order to Induce the do so, and having failed to exercise lessee to take the lease. The deci- thls reasonable precaution, he has sion rather appears to be based on now no just cause of complaint." the ground that one lessor could not, 699 Dennison v. Grove, 52 N. J. by his conduct, affect the others. Law, 144, 19 Atl. 186, ante, note 697. § 38 ' FRAUD. 297 fact, cannot be asserted as fraud constituting a ground for re- liefjos _^d a misrepresentation as to the legal effect of the in- strument of lease is not ordinarily ground for relief J^^ A statement by the lessor that he had certain rights in adjoin- ing land which would pass with the premises leased, when in fact he had no such rights, and without them the premises were use- less for the lessee's purposes, was held to justify the lessee in abandoning the premises and refusing to pay rentJ"'' It has, however, been decided that a lessee of one person, who took a lease from another who falsely asserted title to the land, could not re- pudiate the later lease on account of such false assertion, it being said that his relation to his original lessor cast on him the duty of carefully examining the claimant's titlejo^ ^d the mere as- sertion of his legal right by a party to litigation concerning the land has been decided not to constitute fraud, however mistak- enJ09 A statement by an agent that all the premises leased were owned by one person, while in fact they were owned by two, has been regarded as a matter of which the lessee could not complain, if the lease was assented to by both ownersJi" In England it has been decided that if the lessor knows that he has no title to part of the land, and fails to inform the lessee, who has no means of knowing it, the lessee is entitled to be relieved from his liabil- ity for rentJ*^ Usually in this country the lessee has means of determining the state of the title. A false statement which has no part in inducing the making of the lease is obviously no ground for relief in favor of the lessee.^^^ 705 Wilkinson v. Clauson, 29 Minn. tob Pepper v. Eowley, 73 111. 262. 91, 12 N. W. 147; Coulson v. Whit- See Chambers v. Irish, 132 Iowa, 319, ing, 12 Daly (N. Y.) 408; Garrett v. io9 N. W. 787. Finch, 107 Va. 25, 57 S. B. 604, 14 tk, Merritt v. Dufur, 99 Iowa, 211, ' Am. & Eng. Enc. liaw, 34; 20 Cyclo- gg j^ -^ ggg pedia Law & Proc. 17. ,,, ^^^^ ^ ^est Mostyn Coal & 706 Fry y. Day, 97 Ind 348 See 20 ^^^^ ^ ^ p ^.^ ^^^ .^^ ^^^ Am & Eng. Enc. Law, 56; 20 Cyclo- ^^^^ ^^^^^^ ^^ pedia Law & Proc. 19. , , . , . 707 Morris T.Shakespeare, 20 Wkly. ^^^ Pleased, reject that part only of Notes Cas. (Pa.) 564, 12 Atl. 414. the land to which the lessor had no In Whitney v. Allaire, 1 N. Y. (1 title, keeping the remainder. Comst.) 305, there are expressions "2 See Bayles v. Clark, 115 App. to the same effect. Div. 33, 100 N. Y. Supp. 586, where, 708 Dunbar v. Bonesteel, 4 111. (3 after a valid oral lease was made. Scam.) 32. the incorporation thereof in a writ- 298 CREATION OF THE RELATION. § 3g Occasionally a mere failure on the part of the intending lessor to volunteer information affecting the desirability or value of the premises has been regarded as ground for rescission by the lessee. Thus, the failure to inform the lessee that premises leased by him for residence purposes had formerly been used for purposes of prostitution has been held to relieve the lessee from liability for rent,'^^^ and the same view was taken when the lessor failed to in- form the lessee of the presence of sewer gas.'^^* In another state it has been held that the landlord is responsible as for fraud if he fails to warn the lessee of a defect not open to ordinary observa- tion, while he is not so responsible if the defect is so open.'^is That the lessee was induced to surrender a previous lease which had been assigned to him and to take a second lease, by means of misrepresentations as to the rent reserved on the previous lease, has been regarded as ground for rescinding the second lease.'^i* A rule has been quite frequently enunciated that, in an action at law on a sealed contract, the defendant cannot assert that it was obtained by false representations, though it is otherwise as to fraud in the execution of the contract,'^!'' and this rule has in one jurisdiction been applied in an action for rent reserved by an in- strument of lease under seal.^^^ A lessee does not lose his right to set up the lessor's fraud by taking and retaining possession of the premises, provided he re- linquishes possession on discovering the fraud.'^® If, however, the lessee, after discovering the fraud, makes no attempt to rescind the lease,'^2o or continues in possession of the premises an unrea- ten instrument ■was obtained by false ''is Cate v. Blodgett, 70 N. H. 316, representations. 48 Atl. 281. 713 Staples v. Anderson, 26 N. Y. Tie Powell v. Linde Co., 49 App. Super. Ct. (3 Rob.) 327; Rhinelan- Div. 286, 64 N. Y. Supp. 153. der V. Seaman, 13 Abb. N. C. (N. Y.) tit i Bigelow, Fraud, 53. 455, note. See Conklin v. "White, 17 'is Johnson v. Wilson, 33 111. App. Abb. N. C. (N. Y.) 315; Carhart v. 639; McCoull v. Herzberg, 33 111. Ryder, 11 Daly (N. Y.) 101. App. 542; Little v. Dyer, 35 111. App. 71* "Wallace v. Lent, 1 Daly (N. Y.) 85. 481, 29 How. Pr. 289; Sequard v. 7i9 Milliken v. Thorndike, 103 Corse, 9 N. Y. Wkly. Dig. 51. See Mass. 382; Irving v. Thomas, 18 Me. Daly V. "Wise, 132 N. Y. 306, 30 N. 418. E. 837, 16 L. R. A. 236; Jackson t. 72o Hall v. Ryder, 152 Mass. 528, 25 Odell, 14 Abb. N. C. (N. Y.) 42. N. B. 970. He is justified in re- Contra, Blake v. Ranous, 25 111. App. maining on assurances that the de- 486. fects will be remedied. Hinsdale v. § 38 FRAUD. 299 sonable time after knowing of the fraud,''^! he cannot disclaim liability for the rent. But though the fact that he retains posses- sion with knowledge of the fraud operates to deprive him of the right to rescind, it does not affect his right to damages on account of the fraud, either in an action therefor, or by way of counterclaim in an action for rent.''^^ And this he may do even though he has paid installments of rent with knowledge of the fraud.T23 The measure of damages for fraud in misrepresenting the con- dition of the premises is the difference between the actual rental value and the rental value had the premises been as represented.''^* It has been decided that the lessee cannot recover, on account of misrepresentations as to the water supply, for resulting injury to his stock, or for the cost of improvements made by him to secure water.''25 McCune, 135 Iowa, 682, 113 N. W. Lent, 1 Daly (N. Y.) 481, 29 How. 478. Pr. 289. 721 Oppenheimer V. Clunie, 142 Cal. 722 Whitney v. Allaire, 1 N. Y. (1 313, 75 Pac. 899; Bell v. Baker, 43 Comst.) 305; Pryor v. Foster, 130 N. Minn. 86, 44 N. W. 676; Herrin v. Y. 171, 29 N. E. 123; Prince v. Jac- Libbey, 36 Me. 350; Morey t. Pierce, obs, 80 App. Div. 243, 80 N. Y. Supp. 14 111. App. (14 Bradw.) 91; Resser 304; Herrin v. Libbey, 36 Me. 350; V. Corwin, 72 111. App. 625; Kiernan Barr v. Kimball, 43 Neb. 766, 62 N. V. Terry, 26 Or. 494, 38 Pac. 671; W. 196; Dennison v. Grove, 52 N. J. Barr v. New York, L.. E. & W. R. Co., Law, 144, 19 Atl. 186; Wolfe v. Ar- 125 N. Y. 263, 26 N. E. 145; Pryor v. rott, 109 Pa. 473, 1 Atl. 333 (semble). Foster, 130 N. Y. 171, 28 N. B. 123; See Hall v Ryder, 152 Mass. 528, 25 Rosenbaum v. Gunter, 3 E. D. Smith N. E. 97'0. Compare Bell v. Baker, (N. Y.) 203; McCarty v. Ely, 4 E. D. 43 Minn. 86, 44 N. W. 676. Smith (N. Y.) 375; Conklin v. 723 pryor v. Foster, 130 N. Y. 171, White, 17 Abb. N. C. (N. Y.) 315; 29 N. E. 123; Hoyt v. Dengler, 54 Carhart v. Ryder, 11 Daly (N. Y.) Kan. 309, 38 Pac. 260; Cramer v. 101; Lynch v. Sauer, 16 Misc. 1, 37 Carlisle Bank, 2 Grant Cas. (Pa.) N. Y. Supp. 666; Campau v. Lafferty, 267. See Irving v. Thomas, 18 Me. 50 Mich. 114, 15 N. W. 40. 418. But merely remaining a few days 721 Pryor v. Foster, 130 N. Y. 171, after discovery of a fraudulent rep- 29 N. E. 123. The lessee is also en- resentation as to the condition of titled to the return of a deposit the' premises, under a promise by made to secure the rent. Prince v. the lessor to remedy the defects, does Jacobs, 80 App. Div. 243, 80 N. Y. not make him liable for the month's Supp. 304. rent. Myers v. Bosenback, 11 Misc. 725 Jamison v. Ellsworth, 115 Iowa, 116, 31 N. Y. Supp. 993; Wallace v. 90, 87 N. W. 723. 300 CREATION OF THE RELATION. j 39 The averments in defendant's pleadings, in an action for rent, may be insufficient to authorize the admission of evidence of fraud on plaintiff's part. An averment that the lessor fraudulently concealed defects in the premises is insufficient, it has been de- cided, it being said that the lessee must aver the facts constituting the fraud, such as what did the lessor know, what did he do to conceal the defects, what was his intention, and how did he mis- lead the lessee.'^^e, 727 ji^j^ allegation that the landlord falsely rep- resented that the building was suitable has been regarded as insuf- ficient to admit evidence that he did so fraudulently.'''^^ There must be, it has been held, an averment that the lessor knew the falsity of his statements, and an averment "on information and belief" in this respect has been regarded as insufficient.^29 j^g^^ likewise, the lessee 's ignorance of the true state of the f acts,''^'' or that he was deceived,''^! must be averred. It has also been de- cided to be necessary to aver damage from the fraud.'' ^^ Evidence of fraud is obviously not admissible when there is no averment in respect thereto. ''^^ § 39. Mistake in creation of the relation. 1 The instrument of lease as prepared may, owing to mistake, differ from the actual agreement of the parties, in which case equity will ordinarily reform the lease to accord with their inten- tion. '^s^ So a lease has been reformed on account of error in the description,''^® the omission of an intended provision as to re- 726, 727 Coulson V. Whiting; 12 Daly 732 Holton v. Noble, 83 Cal. 7, 23 (N. Y.) 408, 14 Abb. N. C. 60. See Pac. 58; Simmons v. Kayser, 43 N. Fry V. Day, 97 Ind. 348; Bauer v. Y. Super. Ct. (11 Jones & S.) 131. Taylor, 4 Neb. TJnofC. 710, 96 S. W. 733 Blaclunan v. Kessler, 110 Iowa, ; 26iS. 140, 81 N. W. 185. 728 York V. Steward, 21 Mont. 515, 734 See Wald'e Pollock, Contracts 55 Pac. 29, 43 L. R. A. 125. (Williston's Ed.) 636 et seq.; 20 Am. 729 Haines v. Downey, 86 111. App. & Eng. Bnc. Law (2d Ed.) 82S et 373. And see Bauer v. Taylor, 4 seq; 2 Tiffany, Real Prop. § 385. Neb. Unoff. 701, 96 N. "W. 268. 735 Nielander v. Chicago, M. & St. 730 Schermerhom v. Gouge, 13 Abb. p. r. Co., 114 Iowa, 420, 87 N. W. Pr. (N. Y.) 315. 285. And see Le Comte v. Freshwa- 731 Simmons v. Kayser, 43 N. Y. ter, 56 W. Va. 336, 49 S. B. 238. Super. Ct. (11 Jones & S.) 131. § 40 ILLEGAL. PURPOSE. 301 ,pairs/3« and of a provision allowing the removal of fixturesJ^T 1 In order to justify relief on this ground the mistake must be com- .mon to both parties, a "mutual mistake," as it is ordinarily ex- , pressedj'^s* and strong and clear evidence in this regard is neces- , saryJ^* A contract is regarded as invalid if made upon a mistaken as- sumption by both parties as to some matter of fact, in the absence . of which the contract would not have been made,''*" and this doc- , trine, or one analogous thereto, was applied to a transaction in- volving the leasing of a building which was mistakenly supposed to be capable of sustaining additional stories with a covenant on the part of the lessee to erect such stories, and the lease, meaning thereby both the conveyance of the leasehold interest and the cov- enants entered into in connection therewith, was canceled by the courtJ*^ If the lessee accepts the lease under the supposition that the instrument expresses the terms agreed on, and its failure so to do is intentional on the part of the lessor,''*^ or, it seems, if the lessor merely has reason to know that it fails to express the actual agree- ment,^*3 the lessee is entitled to relief. § 40. Lease for illegal purpose. If the lease is made with the intention that the premises shall 736 Thomas v. Conrad, 24 Ky. Law don, 38 N. Y. St. Rep. 455, 13 N. Y. Rep. 1630, 71 S. W. 903; Id., 25 Ky. Supp. 595; Id., 44 N. Y. St. Rep. 640, Law Rep. 169, 74 S. W. 1084; Wyman 18 N. Y. Supp. 109. v. Sperbeck, 66 Wis. 495, 2'9 I^. W: 740 gee Kerr, Fraud & Mistake (3d 245. See Cage v. Patton, 41 Tex. Ed.) 472; Hammon, Contracts, p. Civ. App. 248, 14 Tex. Ct. Rep. 525,' 106; Wald's Pollock, Contracts, 582. 91 S. W. 311. 741 Hoops V. Fitzgerald, 204 111. 737 Brown v. Ward, 119 Iowa, 604, 325, 68 N. E. 430. 93 N. W. 587. 742 Daly v. Simonson, 126 Iowa, 733 Mortimer v. Shortall, 2 Dru. 716, 102 N. W. 780. See 20 Am. & & War. 363; Fallon v. Robins, 16 Ir. Bng. Enc. Law (2 Ed.) 823. Ch. 422; Grauel v. Soeller, 52 Hun, 743 paget v. Marshall, 28 Ch. Div. 375, 5 N. Y. Supp. 254; Wald's Pol- 255; Garrard v. Frankel, 30 Beav. lock. Contracts (Williston's Ed.) 445. But, as to these cases, see 639. May v. Piatt [1900] 1 Ch. 616; Kerr, 739 Seitz Brew. Co. v. Ayres, 60 N. Fraud & Mistake (3d Ed.) 463. J. Eq. 190, 46 Atl. 635; Wood v. Gor- 302 CREATION OF THE RELATION. 40 be used for an illegal purpose/** such as that of prostitution,''^5 gambling,'^''* or the illegal sale of liquor/*'' the lessor cannot re- cover rent for the premises. A like decision was rendered when the lease was of a sidewalk, which by municipal ordinance could not be occupied for private purposes/*^ when the lease was a mere device for carrying out a conspiracy to enhance the price of merchandise in violation of statute/*'' and when the lease was made partly to induce the lessee not to have the lessor's husband prosecuted for burglary .'^o'' Occasionally it has been held that the lessor 's knowledge of the lessee's intention to use the premises for an illegal purpose will. T4i Gaslight & Coke Co. v. Turner, 5 Bing. N. C. 666, 6 Bing. N. C. 324 (lease for boiling oil and tar, con- trary to statute) ; Simpson v. "Woods, 105 Mass. 263 (unlicensed billiard room); Holmead v. Maddox, 2 Cranch, C. C. 161, Fed. Cas No. 6, 629. 745 Appleton V. Campbell, 2 Car. 6 P. 347; Dougherty v. Seymour, 16 Colo. 289, 26 Pac. 823; Berni v. Boyer, 90 Minn. 469, 97 N. W. 121; Kathman v. Walters, 22 La. Ann. 54; Ernst V. Crosby, 140 N. Y. 364, 35 N. E. 603; Ashbrook v. Dale, 27 Mo. App. 649; Burton v. Dupree, 19 Tex. Civ. App. 275, 46 S. W. 272; Hun- stock V. Palmer, 4 Tex. Civ. App. 459, 23 S. W. 294. See Ralston v. Boady, 20 Ga. 449. But that this is not a defense to an action of forcible detainer by the landlord, see Toby V. Schultz, 51 111. App. 487. 746 Ryan v. Potwin, 62 111. App. 134; McDonald v. Tree, 69 111. App. 134; Heidenreich v. Raggio, 86 111. App. 521; Edelmuth v. McGarren, 4 Daly (N. Y.) 467, 45 How. Pr. 191; Gibson v. Pearsall, 1 E. D. Smith (N. Y.) 90. 747 Rice V. Enwright, 119 Mass. 187; Mitchell v. Scott, 62 N. H. 596; Sherman v. Wilder, 106 Mass. 537; Gorman v. Keough, 22 R. I. 47, 46 Atl. 37; Mound v. Barker, 71 Vt. 253, 44 Atl. 346, 76 Am. St. Rep. 767. See Zink v. Grant, 25 Ohio St. 352; Goodall v. Gerke Brew. Co., 56 Ohio St. 257, 46 N. B. 983, constru- ing the Ohio statute in this regard. There can be no recovery on a guaranty of the rent in such case. Riley v. Jordan, 122 Mass. 231. Under an averment that the plain- tiff knowingly leased the property to be used for the illegal sale of liquor, defendant cannot ask an instruction that the plaintiff cannot recover it he permitted such use after knowing of the illegal sales. Rice v. Bn- wright, 119 Mass. 187. The lease is obviously not invalid because at the time the lessee has not obtained a license, since he can- not ordinarily obtain this till he has obtained the lease. Kerley v. Mayer, 10 Misc. 718, 31 N. Y. Supp. 818; Shedlinsky v. Budweiser Brew. Co., L7 App. Div. 470, 45 N. Y.'Supp. 174. 748 Heineck v. Grosse, 99 111. App. 441; Romano v. Bruck, 25 Misc. 406, 54 N. Y. Supp. 935. These were per- haps more properly licenses than leases. 749 American Strawboard Co. v. Peoria Strawboard Co., 65 111. App. 502. 750 Graham v. Hiesel, 73 Neb. 433, 102 N. W. 1010. §40 ILLEGAL PURPOSE. 303 not affect his right to recover rent, if he himself does not actually share or further that purposeJ^'i If the lessor is ignorant of the lessee's intention, he may no doubt recover rent,"* but it has been held that he cannot do so if he allows the tenancy to continue after learning of the illegal use of the premises, while having the legal right to bring it to an endjss In one state it has even been decided that one who pur- chases the interest of the lessor in ignorance that the premises were used for an illegal purpose by the lessee could not recover rent, if he might by investigation have ascertained the use made of the premisesJ^* The fact that a business may be carried on unlaw- fully and that it was so carried on in the particular ease does not affect the lessor, if he was unaware of the lesse 's intention to that effect.Tss In one case it was decided that if a lease was illegal as made for purposes of prostitution, the lessee entering thereunder and "1 Miller V. Maguire, 18 R. I. 770, 30 Atl. 966; Allen v. Keilly, 18 R. I. 197, 30 Atl. 965; Almy v. Greene, 13 R. 1. 350; Taylor v. Levy (Md.) 24 Atl. 60-8; Updike v. Campbell, 4 E. D. Smith (N. T.) 570. But see Gor- man V. Keough, 22 R. I. 47, 46 Atl. 37. See, also, Ralston v. Boady, 20 Ga. 449. In Frank v. McDonald, 86 111. App. 336, it was decided that the fact that the lessee intended to use the prem- ises for an illegal purpose, and that the lessor knew that he "wanted" to do so, was no defense to the claim for rent. 752 Commagere v. Brown, 27 La. Ann. 314; Gibson v. Pearsall, 1 B. D. Smith (N. Y.) 90; Codman v. Hall, 91 Mass. (9 Allen) 335; Zink v. Grant, 25 Ohio St. 352. In Stanley v. Chamberlain, 39 N. J. Law, 565, it was held that the lessor was not charged with the knowledge of his agent that the premises were to be used for an illegal purpose. See, to the con- trary, Ashbrook v. Dale, 27 Mo. App. 649; Ryan v. Potwin, 62 111. App. 134. 753 Jennings v. Throgmortnn, Ryan & M. 251; Mitchell v. Scott, 62 N. H. 596. See Kessler v. Pearson, 126 Ga. 725, 55 S. E. 963; Codman v. Hall, 91 Mass. (9 Allen) 335. 754 Ernst V. Crosby, 140 N. Y. 364, 35 N. E. 603. Even though the lessee has assigned the lease, he may set up the illegality of the purpose for which it was made. Sherman v. Wilder, 106 Mass. 537. 755 Whalen v. Leisy Brew. Co., 106 Iowa, 548, 76 N. W. 842. In Schedlinsky v. Budweiser Brew. Co., 163 N. Y. 437, 57 N. E. 620, it was held that the fact that the prem- ises used for the sale of liquor were within a prohibited distance of a school house did not prevent recov- ery by the lessor, in view of the fact that a license might lawfully be obtained to carry on the business on such premises by transfer from other premises. 304 CREATION OF THE REL,AT10N. § 40 paying rent could not claim to hold as a tenant from month to month or otherwiseJ^^ This seems to involve the view that the permission to enter is nugatory, as being a permission granted for an illegal purpose, and that, consequently, so far as any right of possession as against the lessor is concerned, he is merely a tres- passer, as having entered without permission. This seems a rea- sonable view. Circumstantial evidence is admissible to show the lessor 's knowl- edge and intention that the premises shall be used for illegal or immoral purposes/^'' and evidence of their bad reputation in this regard,'^^® as well as evidence of a prior lease to the same tenant and his improper use of the premises thereunder, '^^^ has been re- garded as competent, as has evidence that the lessor had other houses in the vicinity which he himself used for such unlawful business.'^ •'o 756Berni v. Boyer, 90 Minn. 469, 76opiath v. Kline, 18 App. Div, 97 N. W. 121. 240, 45 N. Y. Supp. 951. It is there "V Ernst V. Crosby, 140 N. Y. 364, gaid that such evidence is admissible 35 N. B. 603. upon ^^ question of his intent "to T58Demartini v. Anderson, 127 ^ considered only when the facts Cal. 33, 59 Pac. 207; Egan v. Gordon, ^. ^ . ... , ^ j. -^ ^„, „„ -^-r -„r ^^„ pertinent in chief are found to have 65 Minn. 505, 68 N. W. 103. '59 Piath v. Kline, 18 App. Div. ^^^° established by other evidence. 240, 45 N. Y. Supp. 951. CHAPTER IV. THE RELATION OF TENANCY IN CONNECTION WITH OTHER RELATION. § 41. General considerations. 42. Trustee and cestui que trust. 43. Veindor and vendee. a. Vendee let into possession. Id. Express stipulation for tenancy. c. Tenancy on vendee's default. d. Tenant becoming vendee. 44. Grantor and grantee. 45. Mortgagor and mortgagee. a. Mortgagor in possession as tenant. b. Mortgagee in possession as tenant. c. Attornment clause. d. Mortgage relation not exclusive of tenancy. 46. Purchaser at execution sale and former owner of land. 47. Purchaser at foreclosure sale and former owner of land. 48. Master and servant. § 41. General considerations. Not infrequently the relation of landlord and tenant exists be- tween persons who also occupy some other legal relation towards one another, and occasionally persons occupying such other rela- tion are asserted to occupy, by reason of such relation, the fur- ther relation of landlord and tenant. We will here consider the various relations which have been considered or asserted thus to exist concurrently with that of landlord and tenant. § 42. Trustee and cestui que trust. It has been said that a cestui que trust who is given possession of the trust property by the trustee is at law a tenant at will mere- ly, this having reference to the right of the trustee to repossess himself of the property at pleasure, and to his right of recovery L. and Ten. 20. 306 TENANCY ACCOMPANYING OTHER RELATION. § 43 in ejectment without reference to any equitable rights in the ces- tui que trust. ^ Since the adoption of statutes in most jurisdic- tions, however, allowing equitable defenses at law, the position of the cestui que trust cannot be regarded as necessarily that of a tenant at will, since he may, in defence to the trustee 's action for possession, show any better right thereto which may exist in him- self, as that it was intended by the creator of the trust that he should have the possession. A trustee in possession is evidently not the tenant of the cestui que trust, since he does not hold under the latter.^ § 43. Vendor and vendee. a. Vendee let into possession. The question whether one who, having a contract for the sale to him of certain land, obtains possession thereof pending the making of a conveyance to him, is a tenant of his vendor, is a subject on which there has been much divergence of opinion. As elsewhere stated,^ by a number of decisions, a vendee so entering into possession is, if the sale fails of consummation otherwise than through the fault of the vendor, regarded as liable in an action for the value of his use and occupa- tion. These decisions necessarily involve the view that the rela- tion of landlord and tenant exists,* and it has been quite frequent- ly asserted that a vendee in possession is a tenant at will of the vendor.5 But apart from the decisions imposing liability on the 1 Doe d.Nichollv. McKaeg, lOBarn. Howard v. Merrlam, 59 Mass. (5 & C. 721; Perry v. Shipway, 1 GifC. 1. Gush.) 563; Hall v. Wallace, 88 Cal. See Lewin, TruSits (llth Ed.) 851. 434, 26 Pac. 3G0' (semble) ; Foley v. So it has been said that the posses- Wyeth, 84 Mass. (2 Allen) 131, 79 sion of the cestui que trust is not Am. Dec. 771; Dunham v. Townsepd, adverse to the trustee, since he is 110 Mass. 440; Rawson v. Babcock, tenant at will of the latter. Marr 40 Mich. 330'; Hogsett v. Ellis, 17 V. Gilliam, 41 Tenn. (1 Cold.) 488. Mich. 351; Den d. Love v. Edmon- And see Garrard v. Tuck, 8 C. B. ston, 23 N. C. (1 Ired. Law) 152; 231. Jones v. Jones, 2 Rich. Law (S. C.) 2 See Hardin v. Pulley, 79 Ala. 381. 542 ; Richardson v. Thornton, 52 N. 3 See post, § 304 b. C. (7 Jones Law) 458; Uhl v. Pence, 4 See post, § 304 b. 11 Neb. 316, 9 N. "W. 41; Woodbury 5 Patterson v. Stoddard, 47 Me. 355, v. Woodbury, 47 N. H. 11; Harria_v. 74 Am. Dec. 490; Doe d. Hiatt v. Frink,_49 _N.JY_24, 10 Am. Rep. 318 Miller, 5 Car. & P. 595; Doe d. Coun- (dictum); Jackson v. Miller, 7 Cow. sel V. Caperton, 9 Car. & P. 112; (N. Y.) 747; Jones v. Temple, 87 Va. §43 VENDOR AND VENDEE. 307 vendee for use and occupation, the .view that he is the vendor 's tenant has been but seldom actually applied. It has, however, been applied in favor of the vendee when sued in ejectment by the vendor, it being decided that the action will not lie against him unless there has been a previous demand of possession," in accord- 210, 12 S. E. 404, 24 Am. St. Rep. 649. In Lyon v. Cunningham, 136 Mass. 532, Field, C. J., after referring to the cases in that state in which one in possession under a contract of purchase is termed a tenant at will, says: "That neither the designa- tion of licensee or tenant at will expresses all the rights and obli- gations of such an occupant (under a contract for" a deed) is manifest," and then quotes from Dakin v. Allen, 62 Mass. (8 Gush.) 33, as follows: "But it is sometimes said that one who is in thus under a contract for a sale is tenant at will to the owner. In a certain sense he is a tenant at will, as a mortgagor is tenant at will to the mortgagee, because he may enter upon him and eject him, if he can do it peaceably, or main- tain a real action on his title and thus gain the possession." In Freeman v. Headley, 33 N. J. Law, 523, it was decided that a pur- chaser in possession was a tenant at will for the purpose of sustaining against him "an action on the case in the nature of waste for destruc- tion committed while in such pos- session." It may be remarked that at common law the proper form of action against a tenant at will for acts of destruction was trespass and not case, and that his liability for such destruction was not as hav- ing committed waste, but as having committed a trespass. Post, § 109 b (1), note 759. 6 Right V. Beard, 13 East, 210; Doe d. Newby v. Jackson, 1 Barn. & C. 448; Lewer v. McCulloch, 10 Nova Scotia, 315; Doe d. Carson v. Baker, 15 N. C. (4 Dev. Law) 220, 25 Am. Dec. 706; Williamson v. Pax- ton, 18 Grat. (Va.) 475, 505; Pettit V. Cowherd, 83 Va. 20, 1 S. E. 392. In none of these cases was the ven- dee in default under his contract, but there is no intimation that a different view would be taken if the vendee were in default, unless this effect can be given to the occasional remark that no demand is necessary if the vendee has done some wrong- ful act which will determine his possession. In Den v. Westbrook, 15 N. J. Law (3 J. S. Green) 371, 29 Am. Dec. 692, and Harle v. McCoy, 30 Ky. (7 J. J. Marsh.) 318, 23 Am. Dec. 407, it was held that a previous de- mand of possession was necessary, though at the same time it was stated that no relation of tenancy existed. In the first case the vendee was in default, and in the second he was not in default. In Prentice V. Wilson, 14 111. 91, it is said that a previous demand is not necessary if the ^vendee is in default, though otherwise it is necessary; and in Baker v. Gittings, 16 Ohio, 485; Jackson v. Miller, 7 Cow. (N. Y.) 747; McHan v. Stansell, 39 Ga. 197, and Chilton v. Niblett, 22 Tenn. (3 Humph.) 404, it was apparently de- cided that no demand was necessary. In these cases, however, the defend- ant was in default. In Glascock v. Robards, 14 Mo. 350, 55 Am. Deo. 108, a demand was apparently re- 308 TENANCY ACCOMPANYING OTHER RELATION. §43 ance with the rule that such demand is a prerequisite to the main- tenance of ejectment against a tenant at will.'' While, as above stated, it has been asserted not infrequently that the vendee is the vendor's tenant, there are numerous cases to an opposite effect. Decisions that the vendee is not liable to the vendor in use and occupation are sometimes in terms based upon the theory that he is not a tenant,* though he might be a ten- ant and still not be so liable.^ That he is not a tenant has also been asserted in other connections.^" It is sometimes said that a vendee is a licensee rather than a ten- ant.ii That he is a licensee and not a tenant when he is given rights of entry or occupation merely for certain purposes pending garded as unnecftssary as against a purchaser of the vendee's interest, though there was no default. In some of these decisions the question of demand as a prerequisite to eject- ment and that of notice as neces- sary to terminate a tenancy at will seem to he somewhat confused. In several cases it is decided that no demand is necessary when the vendee is in default (Gregg v. Von Phul, 68 U. S. [1 Wall.] 274; Pren- tice V. Wilson, 14 111. 91; Dean v. Comstock, 32 111. 173; Hotaling v. Hotaling, 47 Barb. [N. Y.] 163), while in others previous demand or notice has been decided to be neces- sary even in such case (Guess v. McCauley, 61 N. C. 514; Twyman v. Hawley, 24 Grat. [Va.] 512, 18 Am. Rep. 661). 7 See ante, § 13 b, note 403. • 8 Carpenter v. U. S., 84 U. S. (17 Wall.) 489; Smith v. Stewart, 6 Johns. (N. Y.) 46, 5 Am. Dec. 186; Thompson v. Bower, 60 Barb. (N. Y.) 463; Newby v. Vestal, 6 Ind. 412; Fall V. Hazelrigg, 45 Ind. 576, 15 Am. Rep. 278; Mariner v. Burton, 4 Har. (Del.) 69; Tucker v. Adams, 52 Ala'. 254; Little v. Pearson, 24 Mass. (7 Pick.) 301, 19 Am. Dec. 289; Hop- kins V. Ratliff, 115 Ind. 213, 17 N. E. 288; CofCman v. Huck, 19 Mo. 435; Stacy V. Vermont Cent. R. Co., 32 Vt. 551; Brown v. Ranc^olph, 26 Tex. Civ. App. 66, 62 S. W. 981. That is, the circumstances may show an understanding that he was not to pay for his use and occupa- tion. See post, §§ 304 b, 315. lOMoen v. Lillestal, 5 N. D. 327, 65 N. W. 694; Richmond & Lexing- ton Turnpike Road Co. v. Rogers, 70 Ky. (7 Bush.) 534; Barnes v. Shin- holster, 14 Ga. 131; Harle v. McCoy, 30 Ky. (7 J. J. Marsh.) 318, 23 Am. Dec. 407; Stauffer v. Eaton, 13 Ohio, 322; Klopfer v. Keller, 1 Colo. 410; Willis V. Wozencraft, 22 Cal. 607; McNair v. Schwartz, 16 111. 24; Hill V. Hill, 43 Pa. 528 (semble) ; Starkey V. Starkey, 136 Ind. 349, 36 N. B. 287; Puterbaugh v. Puterbaugh, 131 Ind. 288, 30 N. E. 519, 15 L. R. A. 341; Bemis v. Allen, 119 Iowa, 160, 93 N. W. 50; Cole v. Gill, 14 Iowa, 527; Johnson v. Pollock, 58 111. 181. 11 Dolittle V. Eddy, 7 Barb.XNTT.) 74; Stone v. Sprague, 20 Barb. (N. Y.) 509;Druse v. Wheeler, 22 Mich. 439, 26 Mich. 189; Gault v. Stormont, 51 Mich. 636, 17 N. W. 214; Burnett V. Caldwell. 76 U. S. (9 Wall.) 290. § 43 VENDOR AND VENDEE. 309 the consummation of the sale is no doubt true,i2 but when he is put in possession as a tenant might be, without any reservation of control in the vendor or any intention that his occupation is to be limited in character and purpose, it is difficult, if not impossible, to regard him as a licensee, and it can be done only on the theory that the existing relation of vendor and vendee renders what would otherwise be a demise effective merely as a license. The de- cisions that he is liable in use and occupation are necessarily incon- sistent with the view that he is a licensee and not a tenant. Even in jurisdictions in which it has been judicially asserted that the vendee in possession is the vendor's tenant, the courts '\ have refused to regard him as a tenant for all purposes. He is not ordinarily so regarded for the purpose of enabling the vendor to maintain summary proceedings against him for possession,!* and there are a number of decisions to the effect that the statutes requiring a notice of a certain length of time in order to terminate a tenancy at will are not to be applied so as to render such a notice necessary before the vendor can oust a vendee who is in default.^* 12 See Henry v. Perry, 110 Ga. 630, 1008. In Henry v. Perry, 110 Ga. 36 S. E. 87. 630, 36 S. B. 87, it is held that one isMaxham v. Stewart, 133 Wis. having an option of purchase, who 525, 113 N. W. 972; Dakin v. Allen, obtains a license to enter to pros- 62 Mass. (8 Gush.) 33; Kiernan v. pect for minerals on the property, Linnehan, 151 Mass. 543, 24 N. E. cannot he ousted by dispossessory 907; Dunham v. Townsend, 110 proceedings as tenant if he retains Mass. 440; Hay's Heirs v. Connelly, possession after hiS option has ex- 8 Ky. (1 A. K. Marsh.) 393; Mc- Pired. Combs V. Wallace, 66 N. C. 481; Peo- In Illinois the statute (Hurd's pie V. Bigelow, 11 How. Pr. (N. Y.) Rev. St. c. 57, § 2 [5] ) gives in ex- 83; Johnson v. Hauser, 82 N. C. 375; press terms to the vendor the right Brown r. Persons, 48 Ga. GO; Grif- to bring an action of forcible entry fith V. Collins, 116 Ga. 420, 42 S. B. and detainer against a vendee in de- 743; Klopfer v. Keller, 1 Colo. 410; fault. See Jackson v. Warren, 32 Bemis v. Allen, 119 Iowa, 160, 93 N. 111. 331; Monsen v. Stevens, 56 111. W. 50; Mason v. Delancy, 44 Ark. 335; Haskins v. Haskins, 67 Ill.'446. 444; Chicago, B. & Q. R. Co. V. Skupa, So in Michigan (Comp. Laws 1897, 16 Neb. 341, 20 N. W. 393; Ellsworth § H, 164). See Vos v. Dykema, 26 V. McDowell, 44 Neb. 707, 62 N. W. Mich. 399. 1082. Contra, Hall v. Wallace, 88 " Den v. Westbrook, 15 N. J. Law Cal. 434, 26 Pac. 360; McKissick v. (3 J. S. Green) 371, 29 Am, Dec. 692; Bullington, 37 Miss. 535; Sullivan v. Jackson v. Kingsley, 17 Johns (N. Ivey, 34Tenn. (2 Sneed.) 487; Knight Y.) 747; Powers v. Ingraham, 3 v. Hartman, 81 Mich. 462, 45 N. W. Barb. (N. Y.) 576; Chilton v. Nib- 310 TENANCY ACCOMPANYING OTHER RELATION. § 43 In North Carolina it has been decided that the vendee in posses- sion is not a tenant within the statute of that state vesting the title to the tenant's crop in the landlord "where lands shall be rented or leased by agreement, written or oral, for agricultural pur- poses, "i^ ^ The fact that the contract of sale is oral and is therefore unen- forcible under the statute of frauds has been decided not to make the relation of the parties that of landlord and tenant, the contract being regarded as admissible to show the intention with which the vendee was let into possession and to preclude any inference of a tenancy.is And in other cases the fact that the contract of sale is inyalid under that statute has been apparently ignored in con- nection with the question whether the vendee is a tenant of the v'endor.i'^ Occasionally, however, it has been decided that in view of the invalidity of the contract, it cannot be considered for the purpose of showing that the permissive occupation is other than that of a tenant.^* Ja spite of the numerous decisions above referred to, adverse to the view that a purchaser of land who has exclusive possession by the vendor's permission is a tenant of the latter, it is somewhat dif- ficult to see how he can have such possession otherwise than as a tenant. No right of possession exists in a vendee, either at law lett, 22 Tenn. (3 Humph.) 404; Ven- terson v. Stoddard, 47 Me. 355, 47 able v. McDonald, 34 Ky. (4 Dana) Am. Dec. 49'0; Lapham v. Norton, 337. But in Rawson v. Babcock, 40 71 Me. 83 ; Gould v. Thompson, 45 Mich. 330, and Williams t. Hodges, ^^^ (4 j^jg^g ) 224; Howard v. Mer- 41 Mich. 695, 3 N. W. 189, it was ^.^^_ 53 ^^^^ (5 Cush.) 563; Kay held that where the entry by the X V. Curd, 45 Ky. (6 B. Hon.) 100; Dwlght V. Cutler, 3 Mich. 566, 64 vendee was not under the express provisions of the contract of sale, but was under a permission separate- A""- ^ec. 105; Chilton v. Niblett, 22 ly given, the vendee was tenant at Tenn. (3 Humph.) 404; Reddick v. will, and as such entitled to three Hutchinson, 94 Ga. 675, 21 S. B. 712. months' notice. i* Harris v. Frink, 49 N. Y. 24, 15 Taylor v. Taylor, 112 N. C. 27, 10 Am. Rep. 318; Hall v. Wallace, 88 16 S. E. 924. Cal. 434, 26 Pac. 360. And see Vick i« Mason v. Delancy, 44 Ark. 444; v. Ayres, 56 Miss. 670. Barnes v. Shinholster, 14 Ga. 131; In Rogers v. Hill, 3 Ind. T. 562, Carpenter v. U. S., 84 IT. S. (17 64 S. W. 536, it was held that one Wall.) 489. who went Into possession under a " See Yater v. Mullen, 23 Ind. 562; void contract of sale of Indian land Hogsett V. Ellis, 17 Mich. 351; Pat- was a tenant at will. §43 ' VENDOR AND VENDEE. 32X or in equity, by reason of the contract of sale alone, at least until the consideration has been wholly paid,i9 and such right can be based, in the particular case, only upon permission given by the vendor. Such a possession by permission of the legal owner of the land would ordinarily involve the relation of landlord and ten- ant, and that the parties are at the time imder contractual obliga- tions as to the future conveyance of the land and payment therefor should not afEect the existence of the relation. It is quite fre- quently stated that one so situated is in possession "not as tenant, but as purchaser," but this seems to assume that, merely as ven- dee (purchaser), one has a right of possession, which is not the case. One having merely a contract for the conveyance of the legal title, like any other person, can obtain the right of possession for a limited period only by a demise, either in express terms or by inference from the language or acts of the vendor. Such grant of the right of possession may be made at the same time as the contract of sale, or at another time, and in the first case it may be incorporated in the instrument which evidences that contract. It can properly, however, in either case, it is conceived, be regarded only as a lease creating a tenancy between the vendor and pur- chaser. It would be generally conceded, presumably ,2" that if the vendor, in the instrument evidencing the sale, or in a separate in- strument, states that he does thereby "lease" the premises to the vendee until the time for the making of the conveyance, the latter, having entered by reason of such clause, should be regarded as the tenant of the landlord. But there is, as before stated,2i no dis- tinction in principle between such a case and that in which the vendor merely gives oral permission to the vendee to take posses- sion, or indicates such permission by acts instead of words. In either case there is a lease, by reason of which alone the vendee has a right of exclusive possession. And so there is a lease, that is, a grant of a right of possession, when the vendor in terms grants such right, or such grant can be inferred from the language of the contract considered as a whole. "When the vendee in possession is regarded as a tenant, it is ordi- narily stated that he is a tenant at will.22 By several eases, how- 19 See cases cited 29 Am. & Eng. 21 See ante, § 17. Enc. Law (2nd Ed.) 704. 22 See cases cited ante, note 5. 20 See cases cited post, notes 28-32. 312 TENANCY ACCOMPANYING OTHER RELATION. § 43 ever, the vendee who is thus permitted to enter is regarded as entitled to retain possession until he makes default in the perform- ance of his contract,^^ and ordinarily, it seems, the grant of per- mission to take possession would be with the intention that the right to possession should continue in the vendee until a coaivey- ance is made to him, or until there is a default on his part, wheth- er this permission is expressed in the instrument which evidences the contract of sale, in a separate instrument, by oral statement, or by acts rather than by words. The question whether the ven- dor could treat the vendee as a mere tenant at will would thus depend, it seems, in many cases, upon the construction of the writ- ten instrument, or upon the evidence bearing upon the fact of per- mission. In some cases, it is true, even though the intention to give the vendee the right of possession until the making of the conveyance is apparent, the vendee in possession would be merely a tenant at will, because the intention is not expressed in accord- ance with law, as when the permission is merely oral and yet the conveyance is not to be made until after the period for which an oral lease is valid. This would constitute a case of an entry under a lease invalid under the statute of frauds, the lessee thereby be- coming in the first place a tenant at will. If there is an intention that the vendee shall remain in posses- sion until the time for the making of the conveyance, or until de- fault on his part, and this intention is validly expressed, the ven- dee cannot, it is evident, be regarded as merely a tenant at will, but he is rather, it seems, a tenant for a term to endure until the ' date fixed for the conveyance, subject to a special limitation that the term shall cease upon his default.^* 23 Do-wner v. Richardson, 9 Vt. plaintiff if he should pay a certain 377; Whittier v. Stege, 61 Cal. 238; note and interest, "and in the mean- Field's Heirs v. McGee's Heirs, 28 time to allow the plaintiff, his heirg Ky. (5 J. J. Marsh.) 526; Baldwin v. and assigns, the peaceable and quiet Pool, 74 111. 97 isemble). See possession," the plaintiff was not a Schoolfleld v. Rhodes, 27 C. C. A. tenant at will, hut the condition of 95, 82 Fed. 153. the bond was a demise so long as 24 See Fitch v. Windram, 184 Mass. the plaintiff should pay the interest 68, 67 N. E. 965, apparently to this and should not fail to pay the prin- effect. So in White v. Livingston, 64 ciple on demand. In Doe d. Cliff v. Mass. (10 Cush.) 259, it was decided Connaway, 2 New Br. (Bert.) 382, that, where plaintiff entered under a it was decided that a purchaser let bond to convey the premises to the into possession to hold until default §43 VENDOR AND VENDEE. 313 There have been suggestions to the effect that a vendee in pos- session may be a tenant at sufferance.^s But i£ he is holding by possession he cannot, according to the common-law view of such a tenant,26 be a tenant at sufferance, and if his entry is without per- mission he is, it is conceived, a trespasser. If, however, being given a right of possession until default or for a definite time, he thereafter holds over without permission, he is properly described as a tenant at sufferanee.^^ If his holding, even after default, is by permission, then he is at least a tenant at will and is not a ten- ant at sufferance. b. Express stipulation for tenancy. There are a considerable number of cases recognizing the possibility of the creation of the relation of tenancy between the vendor and the vendee by an ex- press stipulation to that effect. Such a stipulation may be con- temporaneous with the contract of sale, whether contained in the same instrument or not,^® or it may be made subsequently to such in the purchase price was tenant for years until the time for payment of the price. 25 See Knight v. Hartman, 81 Mich. 462, 45 N. W. 1008. In Smith v. Singleton, 71 Ga. 68, it was decided that one who entered by reason of a contract of sale made by an agent of the owner who had charge of the land, and authority "perhaps to rent," but not to make such a con- tract, was a tenant at sufferance and liable to the statutory process applicable to tenants holding over. This is somewhat difficult to un- derstand. If the agent had author- ity to give him possession, he would seem to be a tenant at will at least, while if the agent had no such au- thority, the purchaser could not well be other than a trespasser, un- less perhaps he could be regarded as a mere licensee. The court evident- ly has a conception of a tenant at sufferance different from that which obtained at common law. See, also. Brown v. Persons, 48 Ua. 60. 26 See ante, § 15 a. 27 Moore v. Smith, 56 N. J. Law, 446, 29 Atl. 159. In Sanders v. Richardson, 31 Mass. (14 Pick.) 522, it was decided that, where a bond for title provided that the obligee was to have and keep possession and was to pay a certain sum in one year, whereupon he was to receive a conveyance, the obligee, retaining possession after the year without having paid such sum, was a tenant at sufferance. 28 Yeoman v. Ellison, 36 Law J. C. P. 326; Saunders v. Musgrave, 6 Barn. & C. 524. So where the vendor orally agreed that the vendee should have possession till delivery of the conveyance, paying therefor a sum named, it was held that the relation of landlord and tenant existed, and that an action of use and occupation would lie. Nestal v. Schmid, 39 N. J. Law, 686. And one entering un- der an oral agreement by the owner to devise the land to him, he in the meantime to pay rent, was regarded 314 TENANCY ACCOMPANYING OTHER RELATION. § 43 contract, 2® or even after default.^** And when subsequent in time it may be made with the intent and effect of terminating the oper- ation of the contract of sale and the relation of vendor and pur- chaser,^! though it does not necessarily have that effect.*^ The fact that, in a contract for sale, the installments of the price to be paid or the interest thereon are spoken of as "rent," does not of itself, it has been held, evidence the relation of landlord and tenant,33 though an agreement to pay "rent" as compensation for the right of occupation does, it would seem, have that effect.** c. Tenancy on vendee's default. It is sometimes provided, at the time of the contract of sale or subsequently, that if the ven- dee does not comply with the conditions of sale as to payment of the price or otherwise, the vendee shall occupy the position of ten- ant and pay rent accordingly for the time of his occupation, and such a provision, in effect making the vendee liable as such or as tenant at his election, has been upheld in a number of cases.*^ as a tenant. Hopkins v. Ratliff, 32 See Nestal v. Schmidt, 39 N. J. 115 Ind. 213, 17 N. E. 288. Law, 666; Moore v. Smith, 56 N. J. 29 See post, note 31, 32. Law, 446, 29 Atl. 159; Jones v. Jones, 30 See McCrinis v. Benoit. 26 R. I. 117 N. C. 254, 23 S. E. 214. 421, 58 Atl. 108. 33 Walters v. Meyer, 39 Ark. 560; 31 Powell V. Hadden's Exr's, 21 Quertermous v. Hatfield, 54 Ark. 16, Ala. 745; Thornton v. Strauss, 79 14 S. W. 1096; Vatson v. Pugh, 51 Ala. 164; Wilkinson v. Roper, 74 Ala. Ark. 218, 10 S. W. 493. See Scofield 140; Riley v. Jordan, 75 N. C. 180; v. McNaught, 52 Ga. 69; Sackett v. Dunn V. Tillery, 79 N. C. 497; Taylor Barnum, 22 Wend. (N. Y.) 605; V. Taylor, 112 N. C. 27, 16 S. E. 924; Blitch v. Edwards, 96 Ga. 606, 24 Smith V. Fouche, 55 Ga. 120-; Barton S. E. 147. V. Smith, 66 Iowa, 75, 23 N. W. 271; 34, jackson v. Niven, 10 Johns (N. Chambers v. Irish, 132 Iowa, 319, Y.) 335; Nobles v. McCarty, 61 Miss. 109 N. W. 787; Locke v. Prasher's 456. Adm'r, 79 Va. 409; Barrett v. John- 35 Collins v. Whigham, 58 Ala. 438; son, 2 Ind. App. 25, 27 N. E. 983; Foster v. Goodwin, 82 Ala. 384, 2 So. Spears v. Robinson, 71 Miss. 774, 15 895; Quertermous v. Hatfield, 54 So. 111. Ark. 16, 14 S. W. 1096; Block v. Intervening rights cannot be af- Smith, 61 Ark. 26, 32 S. W. 1070; fected by such a contract. For in- Drum v. Harrison, 83 Ala. 384, 3 So. stance, if a third person has obtained 715; Smith v. Fouche, 55 Ga. 120; an interest in the crop, a lien can- Reddick v. Hutchinson, 94 Ga. 675, not be enforced for rent by the ven- 21 S. E. 712; Bacon v. Howell, 60 dor, on becoming lessor, as against Miss. 362; Williamson v. Paxton, 18 such person. Wilczinski v. Lick, 68 Grat. (Va.) 475. So, where the pur- Miss. 596, 10 So. 73. chase-money note provided that if § 43 VENDOR AND VENDEE. 31 5 Likewise, a contract of sale providing that tlie vendee shall occupy the position of tenant in case the vendor fails to make title has been upheld,36 as has a provision giving to the vendor the option to elect to regard the vendee as tenant instead of vendee, on de- fault in payment of the purchase price.^'? The existence of such a provision or agreement giving either the vendor or vendee the right, by election, to create the relation of landlord and tenant in place of that of vendor and vendee, does not, it has been decided, until the time for election has arrived, create the former rela- tion,3s but when it has arrived and the relation is created, the elec- tion relates back to the time of the making of the original agree- ment, and the rights incident to the relation take precedence of rights acquired before such election by third persons who took with notice, actual or constructive, of the terms of the agree- ment.^8 The Mississippi cases are to the effect that a third person the vendee failed to pay it at ma- and that the election once made was turity he should pay the "customary conclusive as to the relations of the rent," he was held to become a ten- parties from the time of the cou- ant upon such nonpayment. Ish v. tract. Morgan, 48 Ark. 413, 3 S. W. 440. 36 Eaton v. Hunt, 20 Ky. Law Rep. In Vick v. Ayres, 56 Miss. 670, it 860, 47 S. W. 763; Cross v. Freeman, was decided that where the contract 19 Tex. Civ. App. 428, 47 S. W. 473. of sale providing that the vendee, if 37 Stinson v. Dousman, 61 U. S. he failed to pay the purchase money (20 How.) 461; Dunn v. Tlllery, 79 at the end of the year, should pay N. C. 497; Austin v. Wilson, 46 Iowa, a certain rent, was oral, though it 362. was void under the statute of frauds ss Cross v. Freeman, 19 Tex. Civ. as a contract of sale, it was valid as App. 428, 47 S. "W. 473 ; Oxford v. a lease for one year, and that the Ford, 67 Ga. 362; Killebrew v. Hines, vendor might distrain, after having 104 N. C. 182, 10 S. E. 159, 17 Am. unsuccessfully demanded the pur- St. Rep. 672; Green v. Dietrich, 114 chase money, although he had not 111. 636, 3 N. E. 800 (semble). And tendered a deed. in Moore v. Smith, 24 111. 512, In Collins v. Whigham, 58 Ala. it is in effect decided that a mani- 438, it was held that where the con- festation of the election is necessary tract conferred on A the right to in order to change the relation, become the purchaser by delivering 39 Collins v. Whigham, 58 Ala. 438; a certain amount of cotton annually, Thornton v. Strauss, 79 Ala. 164; or to become tenant by delivering a Foster v. Goodwin, 82 Ala. 384, 2 less amount, the right of election So. 895; Bacon v. Howell, 60 Miss, was in A, since he was the first one 362; Abernethy v. Green (Miss.) to act, but if he failed to make elec- 11 So. 186. In these cases the rights lion at the time named for delivery of the vendor as landlord against the of the cotton, the other might elect, crops were regarded as superior to 316 TENANCY ACCOMPANYING OTHEK RELATION. § 43 is under the duty of seeking information of the vendor, in whom the legal title is vested, before he can claim to be without notice of such an agreement, even though it be oral.^'' Under a contract of this character, providing that the relation of landlord and tenant shall arise upon the vendee 's default, with a liability upon the part of the latter to rent at a sum named, the vendor has been allowed, after such default, to recover rent as against the vendee,*^ to assert a lien therefor,*^ and to enforce his claim by distress.*^ It has, however, been decided in one case that the fact that the contract of sale provides that in case of the ven- dee 's default he should hold the premises as "tenant" of the ven- dor did not entitle the vendor to recover against the vendee as for use and occupation, since the vendee, having paid part of the price, had "rights and equities under his contract of purchase which would defeat an action at law against him as a tenant."** And though there are decisions to the effect that such a provision gives the vendor a right, after the vendee's default, to bring sum- mary proceedings for possession against him as a tenant,*^ there are others in which a contrary view has been adopted.*'^ As before suggested, it is difficult to see why a mere informal permission to the vendee to take possession, or a clause to that those of a third person who had sufferance" was used in the contract, acquired an interest in the crops. but the words "at sufferance" were ■*o See cases cited in next preced- in effect ignored hy the court, the ing note. question being whether the vendee *i Stinson v. Dousman, 61 U. S. was a tenant at all. (20 How.) 461; Block v. Smith, 61 islsh v. Morgan, 48 Ark. 413, 3 Ark. 266, 32 S. W. 1070; Thornton S. W. 440; Barrett v. Johnson, 2 Ind. V. Strauss, 79 Ala. 164; Dunn v. App. 25, 27 N. E. 983. This seems Tillery, 79 N. C. 497. to be assumed in Griffith v. Collins, *2 Poster V. Goodwin, 82 Ala. 384, 116 Ga. 420, 42 S. E. 743, where, how- 2 So. 895; Quertermous v. Hatfleld, ever, it was decided that there was 54 Ark. 16, 14 S. W. 1096. no default by the vendee so as to *3 Oxford v. Ford, 67 Ga. 362; Red- create a tenancy, although he tend- dick V. Hutchinson, 94 Ga. 675, 21 ered the wrong amount of purchase S. B. 712; Tick v. Ayres, 56 Miss, money, it appearing that a tender of 670. the right amount would have been **Hill V. Sidie, 116 "Wis. 602, 93 refused. N. W. 446, 96 Am. St. Rep. 1011, ap- *8 Chicago, B. & Q. R. Co. v. Skupa, proving Diggle v. Boulden, 48 Wis. 16 Neb. 341, 20 N. W. 393; Burkhart 477, 4 N. W. 678, and disapproving v. Tucker, 27 Misc. 724, 59 N. Y. Wright V. Roberts, 22 Wis. 161. In Supp. 711. this case the expression "tenant at § 43 VENDOR AND ySNDKE. 317 effect in the written contract of sale, should not be as effective to make the vendee a tenant as is either a distinct formal lease to him or a clause in the contract of sale explicitly creating the relation of tenancy. The cases above referred to, recognizing the valid- ity of a provision that upon the vendee's default he shall be re- garded as tenant and liable for rent as such, generally assume that, apart from sucha stipulation, the vendee, though in possession, is not a tenant. Upon the view that he is a tenant even before de- fault, by reason merely of his permissive possession, it would seem that the effect of such a provision is, upon default, to substitute a new tenancy, subject to a prescribed rent, for the former tenancy, which would ordinarily not be subject to a rent or charge for use and occupation, in other words, that there would be a surrender by operation of law.*''' d. Tenant becoming vendee. As the relation of vendor and purchaser may be changed into that of landlord and tenant, so, conversely, an instrument which operates primarily as a lease may, it appears, subsequently take effect as a contract of sale by virtue of a provision therein that upon the payment of rent as agreed to an aggregate amount named the lessor shall make an absolute con- veyance to the lessee. But until the amount named is paid, the relation of landlord and tenant, with its incidental rights, will ex- ist between the parties.** There is at least one case apparently to the effect that the pres- ence of an option of purchase in an instrument which would other- wise take effect as a lease may prevent the landlord from having the benefit of the ordinary landlord's proceeding to recover pos- session.*" However this may be, as based on the construction of *7 See post, § l&O b. the court seems to be to a great 48 Davis V. Robert, 89 Ala. 402, 8 extent based on the theory that the So. 114, 18 Am. St. Rep. 126; Blanch- purpose of the transaction was to ard v.Raines'Ex'x, 20Fla. 467; Crink- secure the payment of a debt. But ley V. Egerton, 113 N. C. 444, 18 S. this is not a reason for excluding E. 669; Quertermous v. Hatfield, 54 the relation of landlord and tenant. Ark. 16, 14 S. W. 1096; Nobles v. Mc- See post, § 45 d. Carty, 61 Miss. 456; Thomas v. John- in Reeder v. Bell, 70 Ky. (7 Bush) ston, 78 Ark. 574, 95 S. W. 468 ; Cros- 255, It was decided that one enter- kill V. Wortman,10 New Br. (5 Al- ing under an agreement to occupy l«n) 648. and care for the land for six years, 49 Nightingale v. Barens, 47 'Wis. with the right to purchase when 389, 2 N. W. 767. The opinion of able, was not a tenant within the 318 TENANCY ACCOMPANYING OTHER RELATION. § 44 the local statute in reference to such proceeding, the fact that there is such an option in the lessee can certainly not, for most purposes, change a lease into a contract of sale.^" § 44. Grantor and grantee. If one who has made a conveyance of land retains possession, he may or may not do so as the tenant of his grantee. According to the decisions in one state, a grantor so retaining possession is presumed to do so as the grantee's tenant, that is, by the latter 's permission,6i while by other decisions he is prima facie not a ten- ant of the grantee and his possession is wrongful.^^ jj^^ what- ever may be the presumption in the absence of evidence bearing on the question, the true state of the case may be shown.^s And evidence that he retains the exclusive possession by the grantee's permission establishes the relation of landlord and tenant.^* summary proceeding statute. The" (N. Y.) 106; Greenup v. Vernor, IG ground of the decision is not stated. 111. 26. and it may have been on the theory 53 Preston v. Hawley, 101 N. Y. that such a person was a licensee 586, 5 N. E. 770; Id., 139 N. Y. 29G, merely. Compare Colored Home- 34 N. E. ^O^; Larrabee v. Lumbart, stead & Bldg. Ass'n v. Harvey, 23 34 Me. 79. Ky. Law Rep. 1009, 64 S. W. 676, to 54 preston v. Hawley, 101 N. Y. the effect that the presence of such 536 5 jsj. E. 770; Id., 139 N. Y. 296, an option does not exclude the re- 34 n. E. 906; Hunt v. Comstock, 15 lation of tenancy. Wend. (N. Y.) 665; Prichard v. Ta- 50 See Smith v. Brannan, 13 Cal. tor, 104 Ga. 64, 30 S. E. 415; Butler 107; Colored Homestead & Bldg. v. Nelson, 72 Iowa, 732, 32 N. W. Ass'n V. Harvey, 23 Ky. Law Rep. 399; Cadwallader v. Lovece, 10 Tex. 1009, 64 S. W. 676; Clifford v. Gres- Civ. App. 1, 29 S. W. 666, 917; Hod- singer, 96 Ga. 789, 22 S. E. 399; ges v. Gates, 9 Vt. 178. Granger v. Riggs, 118 Ga. 164, 44 S. sims v. Humphrey, 4 Denio (N. E. 983; Hand v. Williamsburgh City y.) 185, is contra. And in Golds- Fire Ins. Co., 57 N. Y. 41; Gilbert v. berry v. Bishop, 63 Ky. (2 Duv.) 114, Port, 28 Ohio St. 26; and other cases it was held that one who, having an cited post, chapter XXVI. equitable title under a bond to con- si Currier y. Earl, 13 Me. 216; vey, transferred his equity to an- Sherburne v. Jones, 20 Me. 70; Lar- other, retaining the right of posses- rabee v. Lumbert, 34 Me. 79. sion for a fixed time, was not the 52Tew V. Jones, 13 Mees. & W. 12; tenant of his transferee. The de- Preston v. Hawlev 101 N. Y. S^'fi S eisidn is based on the ground that N. E. 77'l>; Id., 139 N. Y. 296, 34 N. there was no "reservation of rent" E. 906; Jackson v. Aldrich, 13 Johns, or "allegiance to the title." The § 45 MORTGAGOR AND MORTGAGEE. 319 It is occasionally asserted that a grantor retaining possession is a "tenant at sufferance. "^^ This presumably refers to the case in which he retains possession without permission of, his grantee, since one in possession by permission is not tenant at sufferance.^* There seems no objection to calling a grantor who retains posses- sion without permission tenant at sufferance, using this expression as a term broadly descriptive of a person wrongfully retaining pos- session after the expiration of a rightful possession, and, in the earlier authorities the expression was occasionally applied to per- sons in analogous positions, that is- to a feoffor to uses who re- tained possession,^^ and to a tenant for years continuing in pos- session after making a surrender .^s But a tenant at sufferance is, as we have before undertaken to show,^^ not properly a tenant of the person entitled to possession, and it appears to be beyond question that a grantor, holding over against his grantee's con- sent, is not a tenant "of" his grantee. § 45. Mortgagor and mortgagee. a. Mortgagor in possession as tenant. In those jurisdictions in which the legal title to the premises does not pass by a mort- gage, the right of possession remains in the mortgagor, and no question can arise, by reason of the making of the mortgage, as to whether he is in possession as tenant or otherwise. But in juris- failure to reserve rent however, the tenant should have entered into does not affect the existence of a possession lawfully and should con- tenancy, and there was, it seems, tinue to hold after the termination allegiance to the title to the same of his right." But, as to this, see extent as in other cases of a ten- ante, § 15 a. ancy. ^* See ante, § 15 a. 55 Bennett v. Robinson, 27 Mich. 57 See ante, § 15 a, at note 584. 26; Stevens v. Hulin, 53 Mich. 93, ss "Tenant for years surrenders, 18 N. W. 569; Hyatt v. Wood, 4 and still continues possession, he is Johns. (N. Y.) 150, 4 Am. Dec. 258; tenant at sufTerance or disseisor at Wolcott V. Hamilton, 61 Vt. 79, 17 election." Co. Litt. 57 b, note from Atl. 39. In Taylor v. O'Brien, 19 R. Lord Hale's Ms. 5. But in Belling- T. 429, 34 Atl. 739, it was even held ham v. Alsopp, Noy, 106, jt is said that a wife of the owner who re- that a bargainor continuing posses- tained possession after a conveyance sion after enrollment, is a disseisor, by the latter was a tenant at suffer- for the statute transfers the free- ance as to the grantee, it being said hold to the bargainee, that "to constitute a tenancy by suf- 59 See ante, § 15a, at notes 568- ferance, all that is necessary is that 573. 320 TENANCY ACCOMPANYING OTHER RELATION. § 45 dictions in which the legal title is vested in the mortgagee, the question whether the mortgagor is to be regarded as a tenant has been the subject of a number of discordant dicta. Lord Mansfield in one, case spoke of a mortgagor in such a position as a "tenant at will," «° and in another as a "tenant at will quodam modo," '^^ and there are other cases in which the mortgagor is spoken of as a tenant at will,®^ qj. ^s in some respects in the position of a tenant at will.^* On the other hand he is occasionally spoken of as a tenant at sufferance.®^ Sometimes it is said that he is not a ten- ant at all.^s To some extent, in accordance with this latter view, are a number of decisions in this country that the mortgagee has no right to bring summary proceedings to recover possession of the premises from the mortgagor on default.^® Considering this question of the legal relation of a mortgagor in possession to the mortgagee, as it may arise in that class of states in which the legal title is transferred to the mortgagee by 60 Keech v. Hall, 1 Doug. 21. will, the moAgagor was at all events 61 Moss V. Galllmore, 1 Doug. 279. a tenant at sufferance. 62 Ex parte Isherwood, 22 Ch. Div. In Mason v. Gray, 36 Vt. 308, it 391, per Jessel, M. R.; Dickenson v. ^^ said that the mortgagor is a ten- Jackson, 6 Cow. (N. Y.) 147; Judd V. Woodruff, 2 Root (Conn.) 298. ant at sufferance after default to the extent that ejectment will He against him without notice to quit, esjamieson v. Bruce, 6 GilL & J. ^^^ ^^ ^^^ ^^^^ ^^^ ^.j^^^ (Md.) 72, 26 Am. Dec. 557; Wash- ^ ^^,^^^^^ ^3 ^^ ^^3. ^^^^^^^ ^ ington Bank v. Hupp, 10 Grat. (Va.) (ja^gg^j. ^g y^ g^g 23. In Vance's Heirs v. Johnson, 29 ^5 ^jit^n v. 'Dunn, 17 Q. B. 294; Tenn. (10 Humph.) 215, it i^ said Hickman v. Machln, 4 Hurl. & N. 716; that the mortgagor is not strictly a Litchfield v. Ready, 20 Law J. Exch. tenant at will. 5^. j^^^gg ^_ jj.jj^ g^ jj_ ^ ^gg. p^g 64 See Thunder v. Belcher, 3 Bast, ^ grown v. Mace, 7 Blackf. (Ind.) 450; Gibhs v. Cruikshank, L. R. 8 g; Ray v. Boyd, 96 Ga. 808, 22 S. B. C. P. 454; Scobie v. Collins [1895] gj^g 1 Q. B. 375; American Mortg. Co. v. ^6 Willis v. Eastern Trust & Bank- Simmons, 95 Ala. 272, 11 So. 211. j^g ^^^ jgg y g 395; Hastings v. Contra, per Patteson, J., in Wilton p^att, 62 Mass. (8 Cush.) 121; V. Dunn, 17 Q. B. 294. Bvertson v. Sutton, 5 Wend. (N. Y.) In Smartle v. Williams, 1 Salk. 281, 21 Am. Dec. 217; Roach v. 246, 3 Lev. 387, it was said by Holt, Cosine, 9 Wend. (N. Y.) 227; Mc- C. J., that a mortgagor who re- Combs v. Wallace, 66 N. C. 481; mained in possession by agreement Hunter v. Manum, 78 Wis. 656, 48 was a tenant at will, and that even n. W. 51; Ballow v. Motheral, 64 after the mortgagee had assigned his Tenn. (5 Baxt.) 602; Kuhn v. mortgage, thereby determining the Feiser, 40 Tenn. (3 Head) 82. § 45 MORTGAGOR AND MORTGAGED. 321 the making of the mortgage, it seems a matter of primary import- ance to distinguish between the case in which the mortgagor re- mains in possession by permission of the mortgagee, either oral or in writing, and that in which he remains in possession merely be- cause the mortgagee does not care to take possession and thereby incur responsibility for rents and profits. In the former case the mortgagor is, it seems, a tenant of the mortgagee as having per- missive possession under him.®'^ In the latter case he is not a ten- ant of the mortgagee, it is submitted, since he does not hold under him. He is, technically speaking, from the standpoint of a court of law, wrongfully in possession, as appears from the fact that eject- ment will lie against him at the suit of the mortgagee without any previous demand of possession.^s The mortgagor so retaining the possession without permission is in the same position as a grantor who retains possession without permission.®^ He may properly be called "tenant at sufferance," provided this is not regarded as meaning that he is a tenant "of" the mortgagee.'^** It has been decided that a proviso or agreement in the mortgage instrument to the effect that the mortgagor shall possess or enjoy he land until default in payment of principal or interest takes ef- fect as a "redemise," that is a "lease back," until such default.'^i And such would seem the reasonable and satisfactory view. His right of possession is based on the fact, not that he is a mortgagor, but that the right of possession is granted to him, and apart from such grant or redemise he has no right to possession.''^ There are, however, cases to the effect that a mortgagor thus in possession by 67 So a mortgagee in possession '<> See ante, § 15 a, at notes 568- may, subsequently, to the mortgage, 573. lease to the mortgagor. Baum v. ti Wilkinson v. Hall, 3 Bing. N. Gaffy, 45 111. App. 138. C. 508; Wheeler v. Monteflore, 2 Q. S8 Doe d. Roby v. Malsey, 8 Barn, B. 133; Doe d. Lyster v. Goldwin, & C. 767; Doe d. Parsley v. Day, 2 Q. 2 Q. B. 143; Powsely v. Blackman, B. 147; Rockwell V. Bradley, 2 Conn. Cro. Jac. 659 (dictum); George's 1; Mason v. Gray, 36 Vt. 308. In a Creek Coal & Iron Co.'s Lessee v. court of equity, however, his re- Detmold, 1 Md. 225; Richardson v. tention of possession being in ac^ Baltimore & D. B. R. Co., 89 Md. cordance with usage, and the mort- 126, 42 Atl. 938. See Marden v. gage being regarded as a security Jordan, 65 Me. 9; Mayo v. Fletcher, only, his possession is not regarded 31 Mass. (14 Pick.) 525; Black v. as wrongful, and he is not bound to Allan, 17 U. C. C. P. 240. account for rents and profits. ^2 See ante, at note 68. 89 See ante, § 44. L. and Ten. 21. 322 TENANCY ACCOMPANYING OTHER RELATION. | 45 the permission of the mortgagee is not his tenantJ^ Looking closely at the character of such redemise, it would seem to be in effect a demise to run until the time for payment of the principal, or of the last instalment of the principal, subject ordinarily to a collateral limitation, or limitations, terminating the mortgagor's right of possession at the option of the mortgagee upon an earlier default by him in the payment of interest or in such other matters as may be specified. For instance, if the mortgage is to secure a debt payable in five years, a provision that the mortgagor shall have possession until default in principal or interest would be in effect a redemise to the mortgagor for five years, subject to a limi- tation terminating the demise upon any default. One difficulty which might arise in this connection, but which is perhaps of little practical importance, in view of the general tendency of courts of law to recognize equitable defenses, as well as of the fact that the rights of mortgagor and mortgagee are ordinarily adjusted in equity, is that, from a strictly legal point of view, the term of years thus vested in the mortgagor by the redemise would pass to his personal representative, and not, with his ' ' equity of redemption, ' ' '3 Sadler v. Jefferson, 143 Ala. 669, distinct relation of tenant and land- 39 So. 380; Roach v. Cosine, 9 Wend, lord." Citing Anderson v. Strauss, (N. Y.) 227; Ragan v. Simpson, 27 98 III. 485. But this statement Wis. 355; Nightingale r. Barens, 47 does not meet the question. When Wis. 389, 2 N. W. 767; Davis v. Hem- a mortgagee having the legal title in enway, 27 Vt. 589. fee and the consequent right of pos- In Willis v. Eastern Trust & Bank- session grants to another the right ing Co., 169 TJ. S. 295, where it was of exclusive possession for a limited decided that the presence of such a period, and the latter holds posses- provision for possession did not sion under such grant, if his posses- make the mortgagor tenant of the sion is not in the capacity of tenant mortgagee for the purpose of a of his grantor, in what capacity is statutory proceeding to obtain pos- it? It is not in the capacity of mort- session, Mr. Justice Gray, in de- gagor, because a mortgagor, as such, livering the opinion of the court, has, in the jurisdictions under con- says: "An express stipulation in sideration, no right of possession, the mortgage that the mortgagor The Illinois case referred to gives may remain in possession until no aid in the solution of the ques- breach of condition is intended tion. merely to put in definite and bind- In Barson v. Mulligan, 191 N. Y. ing form the understanding of the 306, 84 N. E. 75, 16 L. R. A. (N. parties as to the exercise of their S.) 151; Constant v. Barrett, 13 rights as mortgagor and mortgagee. Misc. 249, 34 N. Y. Supp. 163, it is and not to create between them a held that a lessee cannot, by the § 45 MORTGAGOR AND MORTGAGEE. 323 to his heir or devisee,^* though such personal representative would, in equity, be compelled to hold the possession in trust for the heir or devisee. It has been stated in an English case that a provision for the retention of possession by the mortgagor, even though he failed to, pay the sum secured vyhen due, until possession was demanded by the mortgagee, did not operate as a redemise for lack of certainty as to timers This statement is hard to comprehend, since the validity of a demise not for a certain time, such as one for life or at will, has always been recognized. Even if the mortgagor, thus given the right to possession until default, is not a tenant for years until the time for payment of principal, as we have before suggest- (»d him to be, he is at least, it seems, a tenant at will. It was said many years ago, by a great judge,'^^ that "upon executing the deed of mortgage, the mortgagor, by the covenant to enjoy till default of payment, is tenant at will, ' ' and such, it is submitted, must be the status of the mortgagor when given the right of possession, but not until default or for any other j&xed time, unless perhaps in some cases in which the provision for the retention of possession by the mortgagor might be construed as a limitation of a life es- tate or a fee to the mortgagor until default.''^ The possibility of the creation of a tenancy at will in favor of the mortgagor is fully recognized in the later English cases.'* To render the mortgagor a tenant at will, however, as distinct from a mere vrrongdoer, there must, it seems, be language, or at least affirmative acts, on the part of the mortgagee, showing his assent to the mortgagor's continu- ance in possession,''* and his mere failure to oust him cannot show such an assent.*" purchase of a past due mortgage on 122; Morton v. Woods, L. R. 3 Q. the premises, obtain a right to hold B. 658, L. R. 4 Q. B. 293; Scobie v. as mortgagee in possession. Collins [1895] 1 Q. B. 375; Doe d. 7* See 1 Powell, Mortgages, 157 b, Dixie v. Davies, 7 Bxch. 89. See note; 3 Man. & R. 109, note to Doe Ashford v. McNaughten, 11 U. C. d. Roby V. Maisey. Q- B. 171; Pegg v. Independent T5 Doe d. Parsley v. Day, 2 Q. B. Order of Foresters, 1 Ont. Law 147 Rep. 97. 70 Holt, C. J., in Smartle v. Wil- '"See ante, § 13 a (5). liams, 1 Salk. 246, 3 Lev. 387. ^o "Whether the mortgagor in pos- TT See Sergeant Manning's note in session is to be considered as a 3 Man. & R., at p. 109. tenant at will, or as a tenant at 78 Doe d, Bastow v. Cox, 11 Q. B. sufferance, seems to depend upon 324 TENANCY ACCOMPANYING OTHER RELATION. § 45 The redemise, or lease back from the mortgagee to the mort- gagor, need not, it seems evident, be incorporated in' the same iii.struuient as the mortgage, nor need it be in writing. But in or. ler that a provision for possession in the mortgagor may take effect as a redemise creating a term of years in him, if the time to elapse before payment of the principal is greater than that for which an oral lease is valid under the statute of frauds, the pro- vision must, it seems, be in writing signed by the mortgagee, and, on the same principle, it would seem that such a provision in a written mortgage instrument could so take effect only when the instrument is signed by the mortgagee as well as the mortgagor. If not sufficient to satisfy the statute of frauds, the provision for possession by the mortgagor would make him merely a tenant at will of the mortgagee.*! There are, however, decisions, in which the failure of the mortgagee to execute the instrument has been regarded as immaterial.®^ the proof, or absence of proof, of as- the mortgagor the exclusive pos- sent to such possession on the part session, though the instrument was of the mortgagee." Sergeant Man- executed only by the mortgagor, it ning's note to Doe d. Roby v. Maisey, jjej^g s^i^ that such a provision 3 Man. & R. 107. So it Is said in a operated either "by estoppel or res- late edition of Smith's Leading g^^^tion," the mortgagee having ac Cases (11th Ed., at p. 542) : "It is ^^^^^^ .^ ^^ ^^p^^^^ reference is believed that no decision, (as dis- ^^^^ ^^ ^j^^ ^^^^^^^ ^^ ^^^^^^^ ^^^ tinguished from dictum) exists in p^eg^^^^ly this was in the mind of which a mortgagor remaining in pos- ^j^^ ^^^^^ ^^^ ^^^^ .^ ^^^ ^^.^p^^jy .session, after an absolute convey- ^^^ ^^ -reservation" (see 2 Tiffany, ance away of his estate by way of j^^^j p^^^^ g 333^^ ^^^ j^ ^ ^^^^ mortgage, without any consent on ^^^^^^ ^.^ ^^ unsigned Instrument is the part of the mortgagee, express or to be implied otherwise than from his silence, has been consid- ered in any other light than as ten- ant at sufferance, to the definition of whom he seems strictly to ans- sufRcient to estop one to assert the statute, the statute becomes nuga- tory. The above decision is adopt- ed, without discussion, in Georges Creek Coal & Iron Co.'s Lessee v. Detmold, 1 Md. 225, and in Loring wer, being a person who comes in by ^ ^^^^^^tt, 4 App. D. C. 1. See, right and holds over without right." ^j^^^ ^^^ discordant opinions in 81 Morton v. Woods, L. R. 4 Q. B. tt 1,1, r^ ^ ■ x o m x /-. ^ Hobbs V. Ontario Loan & Trust Co., ■ 18 Can. Sup. Ct. 483, as to the effect 82 In Flagg V. Flagg, 28 Mass. (11 ^j the mortgagee's failure to execute Pick.) 475, it was held that a pro- the instrument, and Linstead v. vision that the mortgagor should re- Hamilton Provident & Loan Soc., 11 tain possession during his life gave Man. Rep. 199, adopting the view § 45 MORTGAGOR AND MORTGAGEE. 325 There are English authorities to the effect that while a proviso in the mortgage instrument that the mortgagor shall take the profits until default in payment at a certain day will be effective as a redemise, words of a negative character, as that the mortgagee shall not enter or shall not take the profits till such day, cannot have such an effect but operate merely as a covenant.*^ The grounds for such a distinction do not appear, and it would rather seem that in each case it is properly a question of construction of the words used, whether positive or negative in form, as to the intention to vest the possession for a limited period in the mort- gagor. In accordance with this view are decisions in this country in which a right in the mortgagor to retain possession has been inferred from expressions merely indicative of such an understand- ing, without any provision in terms referring to the possession or profits of the land.^* b. Mortgagee in possession as tenant. In those states in which the legal title, with the right of possession, ordinarily re- mains, by statute, in the mortgagor, an express provision in the mortgage instrument that the mortgagee shall have the possession, if effective to give the mortgagee the exclusive possession, as it is generally conceded to be,^^ must, it seems, be regarded as a lease or demise.*® It is unfortunate that, in construing provisions of taken by the majority of the judges was made -when the mortgagor's in that case that such failure was right of possession was inferred immaterial. from the fact that the mortgage was S3 Powseley v. Blackman, Cro. Jac. one for support. See Flanders v. 659; Doe d. Parsley v. Day, 2 Q. B. Lamphear, 9 N. H. 201; Wales v. 147, citing Sheppard's Touchstone Mellen, 67 Mass. (1 Gray) 512; (Preston's Ed.) 272. See Georges' Soper v. Guernsey, 71 Pa. 219; Creek Coal & Iron Co.'s Lessee v. Kransz v. Uedelhofen, 193 111. 477, Detmold, 1 Md. 225, apparently ap- 62 N. E. 239. proving the distinction. 85 See Edwards v. Wray, 12 Fed. 8* In Lamh v. Foss, 21 Me. 240; 42; Rogers v. Benton, 39 Minn. 39, Clay v. Wren, 34 Me. 187; Hartshorn 38 N. W. 765, 12 Am. St. Rep. 613; V. Hubbard, 2 N. H. 453, the mort- Dutton v. Warchauer; 21 Cal. 609, 82 gagor's right of possession was in- Am. Dec. 765; Spect v. Spect, 88 Cal. ferred from a provision that he 437, 26 Pac. 203, 13 L. R. A. 137, 22 should furnish produce from the Am. St. Rep. 314; Brundage v. Home mortgaged premises to the mort- Sav. & Loan Ass'n, 11 Wash. 277, 39 gagee, and it was held that the mort- Pac. 666. gagee could not recover possession «« But in People v. Culver, 21 from the mortgagor. A like decision How. Pr. (N. Y.) 108, a mortgagee 326 TENANCY ACCOMPANYING OTHER RELATION. § 45 this character, as well as provisions giving the mortgagor the right of possession, the courts have ordinarily refrained from con- sideration of the principles on which such provisions are to be re- garded as operating. In those jurisdictions in which the legal title is vested in the mortgagee, he is entitled to possession as having such title, in the absence of a provision giving possession to the mortgagor. If the mortgagor is tenant under another person, the mortgagee will or- dinarily, as his assignee, become tenant in his stead,®'^ and if the mortgage is in the form of a lease,^* the mortgagee will be in, it seems, as the mortgagor's tenant. Ordinarily, however, the pos- session of the mortgagee, being the result of the transfer to him of the legal title in fee, involves no relation of tenancy between him and the mortgagor. c. Attornment clause. In England a mortgage instrument quite frequently contains what is known as an "attornment clause," by which the mortgagor acknowledges that he holds as tenant of the mortgagee, usually at a certain named annual rent, equal to the annual interest, the object being to secure to the mort- gagee a right of distress for the interest, and to give him the right to bring the statutory proceedings to obtain possession on de- fault.®* The nature of the tenancy created depends on the lan- guage of the attornment clause,*" but even though the language is such as to create a tenancy for years or from year to year, a pro- vision that the mortgagee may at any time, without previous no- tice, before or after default, enter upon the premises, has been held to give him the option to terminate the tenancy.*^ An attorn- ment clause does not, ordinarily, it seems, provide in express terms that the mortgagor shall retain possession, but this is necessarily involved therein, and there is in effect a lease, a "redemise," by let into possession by the mortgagor Leading Cases (11th Ed.) 514 et is said to be in as mortgagee, and seq., note to Moss v. Gallimore. not as tenant. !>» Doe d. Garrod v. Olley, 12 Adol. 8T See post, •§ 155. & E. 481; Doe d. Snell v. Tom, 4 Q. 88 See post, § 45 d. B. 615 ; Metropolitan Counties & Gen- 80 See Jolly v. Arbuthnot, 4 De eral Life Assur., Annuity, Loan & Gex & J. 224; Kearsley v. Philips, 11 Inv. Soc. v. Brown, 4 Hurl. & N. 428; Q. B. Div. 621; Daubuz v. Laving- Morton v. Woods, L. R. 4 Q. B. 293. ton, 13 Q. B. Div. 347. The cases 91 See Morton v. "Woods, L. R. 3, are fully discussed in 1 Smith's Q. B. 658; 8 L. R. 4, Q. B. 293. § 45 MORTGAGOR AND MORTGAGEE. 327 the mortgagee to the mortgagor, as if the ordinary language of leasing were used. d. Mortgage relation not exclusive of tenancy. It clearly ap- pears from the decisions above referred to that the relation of land- lord and tenant may exist concurrently with that of mortgagor and mortgagee, and, it is submitted, it almost invariably exists if the party otherwise entitled to possession, whether the mortgagor or the mortgagee, grants the right of possession to the other. Likewise, the relation of landlord and tenant may exist between the mortgagor and mortgagee in states in which a mortgage con- veys the legal title, by reason of the fact that the mortgage is in the form of a lease subject to a condition subsequent, instead of in the form of a conveyance in fee so subject. The recognized method of giving a mortgage on a term of years is, in England, by means of a sublease rather than an assignment, since thereby the mortgagee does not become subject to a possible liability on the covenants of the original lease. In at least one state in this coun- try, likewise, it may be remarked, it has been a usual practice to secure the repayment of a loan by a conveyance in fee to the lend- er from the borrower, and a lease back to the latter, with a pro- vision for- the payment of a rent equal to the interest on the loan, and a right in the borrow^er to a conveyance of the fee upon the repayment of the amount of the loan, the courts applying to such a transaction the principles applicable to mortgages, but recog- nizing, at the same time, that there is a lease.^^ Thg mortgage may also provide that the mortgagee shall become tenant of the mortgagor from and after default,®^ or, after a default has taken »2 See Montague v. Sewell, 57 Md. premises as tenant to the mort- 407; Posner v. Bayless, 59 Md. 56; gagee, the mortgagor did not become Grand United Order of Odd Fellows a tenant, subject to distress, upon V. Merklin, 65 Md. 579, 5 Atl. 544. default, but a notice from the mort- The validity of such a transaction gagee of the change in the terms of for the purpose of securing a debt his holding was necessary. In is recognized in Knowles v. Murphy, Equity Bldg. & Loan Ass'n v. Mur- 107 Gal. 107, 40 Pac. 1047. phy, 75 Mo. App. 57, it was held that 93 Clowes V. Hughes, L. R. 5 E*xch. a provision In a deed of trust to 160. In this case it was decided secure a debt that, upon default, the that under a provision that, in the maker should become the tenant of event of a default by the mortgagor, the creditor, entitled the latter to he should "immediately or at any bring unlawful detainer against time after such default" hold the him. 328 TENANCY ACCOMPANYING OTHER RELATION. | 45 place, the mortgagor may accept a lease from the mortgagee.^* In view of these various cases in which the concurrent existence of the relation of landlord and tenant and that of mortgagor and mortgagee have been recognized, it is somewhat singular that occa- sionally the view has been taken, apparently, that these two rela- tions are irreconcilable.^*" No court would allow the relation of landlord and tenant to be created as a cloak for the extortion of usurious interest, nor to deprive the borrower of the right of re- demption, or of any other rights incident to the position of mort- gagor, but, apart from these considerations, the possibility of the simultaneous existence of the two relations would seem unques- tionable. § 46. Purchaser at execution sale and former owner of land. In a few cases it is asserted that an execution defendant who re- mains in possession after the sale is a "tenant at sufferance.""^ As in the case of a grantor who remains in possession after his conveyance, without the permission of his grantee,®^ there is no objection to calling the execution debtor so retaining possession a tenant at sufferance, provided this is not regarded as meaning that . he i§ a tenant holding "of" or "under" the execution purchaser, since, as a matter of fact, his possession is not derived from such purchaser and he has in no way recognized the latter as his land- lord. He may no doubt enter into a relation of tenancy with such purchaser, as by accepting a lease from him, or attorning to him. Otherwise he is not the tenant of the purchaser, as has been several times decided,^^ and, if he does enter in to the relation, he is there- after not a tenant at sufferance. 04 Ford V. Green, 121 N. C. 70, 28 Powell v. DeHart, 55 Ind. 94; Griffin S. E. 132; Murray v. Riley, 140 v. Rochester, 96 Ind. 545; Keaton v. Mass. 49'0', 6 N. E. 512. Thomasson's Lessee, 32 Tenn. (2 94a See Roach v. Cosine, 9 Wend. Swan) 138, 58 Am. Dec. 55; Chalfin (N. Y.) 227; Greer v. Wilhar, 72 N. v. Malone, 48 Ky. (9 B. Mon.) 496, 50 C. 592; Davis v. Hemenway, 27 Vt. Am. Dec. 525; Cook v. Norton, 48 111. 589; Ragan v. Simpson, 27 Wis. 355; 20; Wyman v. Hook, 2 Me. (2 Nightingale v. Barens, 47 Wis. 389. Greenl.) 337; O'Donnell v. McMur- 05 Dobbins v. Lusch, 53 Iowa, 304; die, 25 Tenn. (6 Humph.) 134. Currier v. Earl, 13 Me. 216; Brigant In Meyer v. Beyer, 43 Wash. 368^ V. Tucker, 19 Me. 383. 86 Pac. 661, it was decided that one 98 See ante, § 44. whose property was sold under a »7 Tucker v. Byers, 57 Ark. 215; mechanic's lien and who continued § 47 PURCHASER AT FORECLOSURE SALE. 329 § 47. Purchaser at foreclosure sale and former owner of land. A mortgagor, or his transferee, retaining possession after a sale under the mortgage, has been said to be a tenant at suffer- ance.®* Assuming that his possession after the sale is wrongful,"''' he may, like a debtor retaining possession after execution sale, be termed a tenant at sufferance, it being borne in mind that this does not mean a tenant "of" or "under" the purchaser .lo" Further- more, if a lease is made to the mortgagor by such purchaser after the sale, or, which is the same thing, there is an acceptance by the latter of an attornment by him, the mortgagor evidently be- comes not a tenant at sufferance, but at least a tenant at will.^"^ The important and difficult question, however, is whether, in the in possession claiming as owner relation of tenancy or quasi tenancy, could not be regarded as the tenant but is properly to be based on a rule of the purchaser for the purpose of of public policy that a defendant in a summary proceeding. execution should not be allowed to The New York statute authorizing render a sale under execution an a summary proceeding in favor of Inadequate means of obtaining satis- the purchaser at execution against faction of the judgment by requiring the debtor speaks of the former as the purchaser, before he can obtain landlord and the latter as tenant, possession, to prove the validity of In reference to this, Demlo, J., well the defendant's title, says: "A person thus holding over os Allen v. Carpenter, 15 Mich. 25; is not, it is true, in any ordinary Ramsdell v. Maxwell, 32 Mich. 285; sense a tenant, though he may be Kinsley v. Ames, 43 Mass. (2 Mete.) called such for some technical pur- 29; Johnson v. Donaldson, 17 R. I. pose; nor is the person who pur- 107, 20 Atl. 242; Taylor v. O'Brien, chased on the execution, or a party 19 R. I. 429, 34 Atl. 739; Tucker v. who has acquired his title, in any Keeler, 4 Vt. 161. proper sense a landlord." Spraker »9 See ante, § 46. V. Cook, 16 N. Y. 567. And to the looin-Luchs v. Jones, 8 D. C. (1 same effect, see the remarks of McArthur) 345, it was considered Folger, C. J., in People v. McAdam, that, in view of the language of the 84 N. Y. 287. local statute providing that all oceu- In Siglar v. Malone, 22 Tenn. (3 pation or possession without express Humph.) 16; Wood v. Turner, 26 contract or lease should be deemed Tenn. (7 Humph.) 517, it is said a tenancy at sufferance, the mort- that an execution defendant is a gagor was tenant at sufferance to quasi tenant of the purchaser, and the purchaser at foreclosure sale, as such precluded from denying the and so liable to a summary proceed- validity of the title which passed by ing for his expulsion. This view is the sale. It is submitted that his disapproved in Willis v. Eastern preclusion to deny the title in such Trust & Banking Co., 169 U. S. 295. case is entirely independent of any loi See Granger v. Parker, 137 330 TENANCY ACCOMPANYING OTHER RELATION. § 47 absence of such creation of the relation by some legal act subse- quent to the sale, the mortgagor can in any case be regarded as the tenant of such purchaser, that is, as rightfully in possession under him. We will first consider this question on the theory that by the mortgage a legal title is vested in the mortgagee, or in a trustee for sale to satisfy the debt, and will subsequently consider the question on the theory that the mortgage creates a lien only. Assuming that in the particular case there is no grant by the mortgagee to the mortgagor of the right of possession, no "re- demise," ^^^ the possession of the latter must be wrongful, the leal title being in the mortgagee, and so it must be wrongful as against the purchaser at the sale, unless the latter grants such right. In case there is a redemise to the mortgagor, giviag him a right of possession until the sale, or giving him the rights of a ten- ant at will, the tenancy would, it seems, come to an end upon the sale. There might, however, be a redemise in such form that the tenancy thereby ereated would not terminate upon the sale, as, for instance, in case the mortgage instrument provided, although the principal was to become due in five years, that the mortgagor should remain in possession for ten years from the date of the mortgage. In such case the mortgagor would be the tenant of the mortgagee or his assignee until foreclosure, and upon fore- closure by sale, either in equity or under a power contained in the mortgage instrument, the mortgagor would become tenant of the purchaser, the person to whom the reversionary estate has passed.i'^3 Such a provision, in terms redemising the premises to the mort- gagor for a period longer than that for which the mortgage is to run, is no doubt unusual, but the observations just made may have a bearing upon the question of the validity of a provision occa- sionally fotmd, that the mortgagor shall become the tenant of the purchaser at the sale. Such a provision, in connection with a Mass. 228; Ramsdell v. Maxwell, 32 trustee to the mortgagor, the mort- Mich. 285; Eldridge v. Hoefer, 45 gagor agreeing "to surrender peace- Or. 239, 77 Pac. 874. able possession" with ten days 102 See ante, § 45 a. after foreclosure sale, and the pur- 103 In Sexton v. Hull, 45 Mo. App. chaser was regarded as succeeding 339, this theory was apparently ap- to the rights of the trustee as land- plied, the mortgage instrument con- lord. taining a redemise by the mortgage § 48 , MASTER AND SERVANT. 33X mortgage or deed of trust containing a power of sale on default, has been decided to be effective for the purpose of giving the pur- chaser the remedies of a landlord to recover possession from the mortgagor,^^* and also to recover rent to the amount named in the mortgage instrument."" These decisions, which contain no discussion of the matter on principle, can, it is conceived, be sup- ported only by regarding the tenancy under the purchaser as the same tenancy as that created by the redemise, and the purchaser as a transferee of the mortgagee or trustee, taking subject to the mortgagor's tenancy, thus applying the view above suggested, that the redemise may create a tenancy to continue until after sale on default. One possible difficulty with the explanation just given of the mode of operation of such a clause is that the decisions recognizing its validity appear to regard the mortgagor, in the particular ease, as a tenant at will of the purchaser, but there is, it is conceived, no objection to a demise which creates both a ten- ancy for years to endure until a certain event, the time named for the payment of a debt for instance, and also a tenancy at will, to arise upon the termination of the tenancy for years, they consti- tuting in the view of the law but a single tenancy. The explanation, above suggested, of the possible operation of such a clause making the mortgagor tenant of the purchaser, can- not possibly apply in jurisdictions where the mortgagee has not the legal title, and, consequently, the mortgagor cannot, before the sale, be regarded as a tenant of the mortgagee or trustee. And in order, in those jurisdictions, to give validity and effectiveness to such a clause, it would be necessary to assume that one person (here the mortgagor) may, by a declaration to that effect, make himself the tenant, from and after the future sale of the land, of the person unknown who may purchase at such sale, an assump- tion which, on principle, is somewhat difficult to support. § 48. Master and servant. One may at the same time be seryant of another person and also his tenant. "There is no inconsistency in the relation of master and servant with that of landlord and tenant. A master may pay 104 Griffith V. Brackman, 97 Tenn. App. 12; Brewster v. McNab, 36 S. 387, 37 S. W. 273, 49 L. R. A. 435. C. 274, 15 S. E. 233; Parsons v. Pal- 105 Wade V. Mc'cormack, 68 Mo. mer, 124 Mo. App. 50, 101 S. W. 609. 332 TENANCY ACCOMPANYING OTHER RELATION. § 43 his servant by conferring on him an interest in real property, either in fee, for years, or at will, or for any other estate or inter- est, and if he do so, the servant then becomes entitled to the legal incidents of the estate, as much as if it were purchased for any other consideration. "1 06 So one who is already a tenant may en- ter the service of his landlord, or a servant may take a lease from his master, without affecting the existing relation or his right to the stipulated remuneration for his services. Frequently, how- ever, it is a question of very considerable difficulty whether a servant, who is in occupation of a house or other premises belong- ing to the master, and who went in as a result of the contract of employment, is to be regarded as a tenant or as merely occupying in his ministerial capacity on behalf of his master,, the latter re- taining the legal possession. The English cases are to the effect that the servant is in occu- pation as a tenant if he is permitted to occupy for his own con- venience by way of partial remuneration for his services,i°^ while if his occupation is necessary for the better discharge of his du- ties,i"'s or if he is required by his master to reside on particular premises,!"® his occupation is regarded as that of a servant and not of a tenant. The fact that the wages are lower owing to the fact that the employee is allowed to occupy a house belonging to his employer has been held not to show that he is a tenant,ii° and the same view has been taken of the presence of an express stipu- lation that, in case of the termination of the contract, possession shall be relinquished upon the giving of a specified notice,^ as 106 Per Tindall, C. J., in Hughes v. 285. And see Rex v. Stock, 2 Taunt. Overseers of Chatham, 5 Man. & G. 329; Rex v. Inhabitants of Chestnut, 54, quoted with approval in Kerrains 1 Barn. & Aid. 473. Smith v. Over- Y. People, 60 N. Y. 221, 19 Am. Rep. seers of Seghill, L. R. 10 Q. B. 422, 158, and Chatard v. O'Domovan, 80 seems to be contra, however, to the Ind. 20, 41 Am. Rep. 782. See, also, effect that the master's requirement Higginbotham v. Higginbotham, 41 that the servant reside in a house be- Ky. (10 B. Hon.) 371. , longing to the master does not make 107 Hughes V. Overseers of Chat- his occupation that of a servant if ham, 5 Man. & G. 55; Marsh v. it does not conduce to the better dis- Estcourt, 24 Q. B. Div. 147. charge of his duties. 108 Clark v. Overseers of St. Mary, "o Hughes v. Chatham, 5 Man. & G. 1 C. B. (N. S.) 23; Fox v. Dalby, L. 54, 79; Bertie v. Beaumont, 16 Bast, R. 10 C. P. 285. 33. io« Dobson V. Jones, 5 Man. & G. m Mayhew v. Suttle, 4 El. & Bl. 112; Pox V. Dalby, L. R. 10 C. P. 347, afd. 24 Law J. Q. B. 54. § 48 MASTER AND SERVANT. 333 well as of the fact that the employee is permitted to carry on his own business on the premises.!^* The English cases do not clearly state whether, in any case, the occupation would be re- garded as that of a servant because necessary to the better dis- charge of the servant's duties, when it is not required by the mas- ter but is left to the servant's option, though there are sugges- tions to the effect that it would be so regarded in such a case.^i^ One who is required to occupy a vacant house of the employer at a stipulated rent, to be deducted from his wages, not because this is necessary to the better discharge of his duties, but because the employer wishes to get rent for the house, or merely because the employer arbitrarily so elects, has been decided to occupy not as servant but as tenant.^i* In this country the decisions have not ordinarily followed any fixed rule in this regard. Sometimes it is asserted, as in England, that the occupation is that of a servant if it is incidental to the employment or connected with the service,!^^ and there is at least one decision to the efl'ect that such is the case if the occupation is required by the master for the better performance of the ser- vice.118 And, as in England, the fact that the right to occupy the house has the effect of lowering the wages paid does not neces- sarily render the occupation that of a tenant,"'^ though it has been said that this tends to show the existence of a tenancy.i^s 112 White V. Bayley, 10 C. B. (N. 80 Vt. 273, 67 Atl. 722, 12 L. R. A. S.) 227. See Cass County Sup'rs v. (N. S.) 655. That the janitor o£ Cowgill, 97 Mich. 448, 56 N. W. 849. an apartment house occupying a 113 See Fox v. Dalby, L. R. 10 G. P. room therein is not a tenant, see 285 opinions of Coleridge, C. J., and Tucker v. Burt, 152 Mich. 68, 115 N. Brett, J. * W. 722, 17 L. R. A. (N. S.) 510. 114 Smith v. Overseers of Seghill, L.. "« Kerrains v. People, 60 N. Y. 221, R. 10 Q. B. 422. But there «eems 19 Am. Rep. 158. some conflict between this case and ht Bowman v. Bradley, 151 Pa. others. See ante, note 109. 351, 24 Atl. 1062, 17 L. R. A. 213; 115 Kerrains v. People, 60 N. T. 221, Heffelfinger v. Fulton, 25 Ind. App. 19 Am. Rep. 158; Bowman v. Brad- 33, 56 N. B. 688. See Massachusetts ley, 151 Pa. 351, 24 Atl. 1062, 17 L. General Hospital v. Inhabitants of R. A. 213; Chatard v. O'Donovan, 80 Somerville, 101 Mass. 319. Ind. 20, 41 Am. Rep. 782; Llghtbody "s McGee v. Gibson, 40 Ky. (1 B. Y. Truelsen, 39 Minn. 310, 40 N. W. Mon.) 105; Ofschlager v. Surbecfc, 67; MeadT.'pollock, 99 111. App. 151; 22 Misc. 595, 50 N. Y. Supp. 862; Womach v. Jenkins, 128 Mo. App. Overseers of Poor of Milton 408, 107 S. W. 423; Mead v. Owen, v. Overseers of Poor of West Chillis. 334 TENANCY ACCOMPANYING OTHER RELATION. § 43 The decisions rather tend, however, to determine each case upon its own circumstances, by a consideration of whether the master retains control of the premises occupied by the servant, and in the majority of the cases the occupation is regarded as that of a serv- ant and not of a tenant. There seems, indeed, according to a number of cases, to be a presumption that the occupation by a servant is in that capacity, in the absence of any showing of a distinct demise,ii9 and that seems to be a logical view of the mat- ter so far as he has any duties in connection with the particular premises in reference to which the question arises, or in connec- tion with land of which such premises form a part. It has ordinarily been decided that a farm laborer occupying a house on the farm does so as servant and not as tenantj^^o and the same view has been taken of a teacher occupying part of the school building,! 21 and a domestic servant occupying rooms in or near quaque, 9 Pa. Super. Ct. 204, 43 trary is shown, makes the occupa- Wkly. Notes Cas. 452, tion of a servant that of a tenant 113 Davis v. Williams, 130 Ala. SSO, at will. This assumption seems to 30 So. 488, 54 L. R. A. 749, 89 Am. be based, on another assumption, St. Rep. 55; State v. Curtis, 20 N. C. which is incorrect, that a servant is (4 Dev. & B. Law) 363; Higgin- ordinarily in possession of land botham v. Hlgginbotham, 49 Ky. (10 which he is occupying in his minis- B. Mon.) 371; School Dist. No. 11 v. terial character. See ante, § 9. Bateche, 106 Mich. 330, 64 N. W. 120 Haywood v. Miller, 3 Hill (N. 196, 29 L. R. A. 576; McQuade v. Y.) 90; People v. Annis, 45 Barb. Emmons, 38 N. J. Law, 397. (N. Y.) 304; Bowman v. Bradley, "To create the relation of landlord 151 Pa. 351, 24 Atl. 1062, 17 L. R. A. and tenant, no particular words are 213; Heffelfinger v. Fulton, 25 Ind. necessary, but it Is indispensable App. 33, 56 N. E. 688; Edgar v. that it should appear to have been Jewell, 34 N. J. Law, 259; Mead v. the intention of one party to dis- Owen, 80 Vt.* 273, 67 Atl. 722, 17 L. possess himself of the premises, and R. A. (N. S.) 510. But in State v. of the other to enter and occupy as Smith, 100 N. C. 466, 6 S. E. 84, and the former himself had the right to Ofschlager v. Surbeck, 22 Misc. 595, do, pursuant to the agreement be- 50 N. Y. Supp. 862, it was held that tween them." Per Stites, J., in a farm laborer was the tenant of "Walker v. Morgan, 57 Ky. (18 B. the house which he was allowed to Mon.) 136. occupy. And see Oould v. Eagle In Grosvenor v. Henry, 27 Iowa, Creek School Dist, 8 Minn. 427 (Gil. 269, it is assumed that the local 382). statutory provision that any person 121 Walker v. Morgan, 57 Ky. (IS in possession of real property, with B. Mon.) 136; School Dist. No. 11 the assent of the owner, is presumed v. Batsche, 106 Mich. 330, 64 N. W. to be a tenant at will unless the con- 196, 29 L. R. A. 576. §48 MASTER AND SERVANT. 335 the house.122 it would seem clear that a person who is put in possession of premises merely for the purpose of looking after them on behalf of another is there as his servant and not as a tenant.123 There are occasional decisions to the effect that a clergyman occupying a parsonage is a servant rather than a tenant.i^* But the circumstances may no doubt be such as to render him a tenant.125 122 State V. CurUs, ao N. C. (4 Dev. & B. Law) 363; Watson v Mc- Bachin, 47 N. C. (2 Jones Law) 207. See dicta in Kerrains v. People, 60 N. Y. 221, 19 Am. Rep. 158; Cliatard T. (TDonovan, 80 Ind. 20, 41 Am. Rep. 782; McQuade v. Emmons, 38 N. J. Law, 397. 123 It is so decided in Mitchell v. Davis, 20 Cal. 45; Todhunter v. Arm- strong (Cal.) 53 Pac. 446; Zinnel v. BergdoU, 9 Pa. Super. Ct. 522, 44 Wkly. Notes Cas. 54; Seymour v. Warren, 86 App. Div. 403, 83 N. Y. Supp. 871; Reeder v. Bell, 70 Ky. (7, Bush) 255. In Farrow's Heirs v. Edmundson, 43 Ky. (4 B. Mon.) 605, 41 Am. Dec. 250, it is said that if one takes pos- session of land as agent, the rela- tion of landlord and tenant is there' by established. This, however, was merely for the purpose of asserting the preclusion of the agent to deny the title of the principal, and that preclusion exists in any case of an agent who is given possession as such. See Clark & Skyles, Agency, § 430 et seq. 124 East Norway Lake Church v. Froislie, 37 Minn. 447, 36 N. W. 260. So in Chatard v. O'Donovan, 80 Ind. 20, 41 Am. Rep. 782, it was decided that where a Roman Catholic priest occupied a parsonage belonging to the diocese and standing in the name of the bishop, his occupation was analogous to that of a" servant and not that of a tenant. 125 In Bristor v. Burr, 120 N. Y. 427, 24 N. E 937, 8 L. R. A. 710, it was decided that one occupying a parsonage attached to a church of which he was placed in charge by the general conference of that de- nomination was in possiession as tenant and not as a servant, the court saying that, since he was not hired by that particular church as- sociation but by the conference, he could not be in as a servant. The opinion proceeds: "There appears to have been nothing, so far as ap- pears in the circumstances under which he went into the house or in his relation to the church or its trus- tees, which so qualified his occu- pancy as to render it otherwise than possession by him. This is pre- sumptively the relation assumed to premises by a party who lawfully enters upon them as a place of abode and occupies them as such; and any less right than that which possession furnishes is dependent upon some understanding, express or implied, denying such relation," and then it is said that no such understanding appeared in that case. In Doe d. Jones v. Jones, 10 Barn. & C. 718; Doe d. NichoU v. McKaeg, 10 Barn. & C. 721; Perry v. Ship- way, 1 Giff. 1, it is isaid that a dis- senting minister is "merely a ten- 336 TENANCY ACCOMPANYING OTHER RELATION. § 4g The question whether the employee is upon the premises as such or as a tenant has sometimes arisen in connection with the right of the master to repossess himself of the premises occupied by the servant immediately upon the termination of the service, with- out notice to quit, and that he may do so when the occupation is merely that of a servant has been reeognized.i^^ There are occa- sional statements to the effect that if the servant does not relin- quish possession upon the termination of his service, he thereupon becomes a tenant at will or at sufferance,^ ^'^ but it is not per- ceived how this can be the case, since a tenancy at will arises only when the holding is by consent of the owner, and a tenancy at sufferance arises only when one who is in rightful and exclusive possession retains possession after his right to do so has come to an end,i2* a state of facts which does not occur in the case of a mere servant who wrongly refuses to withdraw, since he had at no time the legal possession but was merely on the premises as representative of his master. A servant who thus excludes his master from the possession is, it is submitted, a disseisor, to the same extent as if he had originally gone on the land without per- mission and excluded the ov»Tier therefrom. That he is not a ten- ant at will" under the trustees of 396, 4 Pac. 869, it was held that the chapel and parsonage. There where a contract provided for the was no contention that he was in rendition of services for eight occupation as servant only. months, and that during such eight 126 Bowman v. Bradley, 151 Pa. months, and for four months after 351, 24 Atl. 1062, 17 L. R. A. 213; such eight months the employee Clark V. Vannort, 78 Md. 216, 27 should occupy a house belonging Atl. 982; Chatard v. O'Donovan, 80 to the employer, the employee was, Ind. 20, 41 Am. Rep. 782. during such four months, in pos- 127 People V. Annis, 45 Barb. (N. session as tenant and not as servant. Y.) 304; School Dist. No. 11 v. 12s See ante, § 15 a. In School Batsche, 106 Mich. 330, 64 N. "W. 196, Dist. v. Batsche, 106 Mich. 330, 64 29 L. R. A. 576. And see Huggins N. W. 196, 29 L. R. A. 576, supra, it V. Bridges, 29 Pa. Super. Ct. 82. is said that "a person in possession But, in regard to this. It may be of land lawfully, who holds over said that, even concedlUg that one without right, becomes a tenant at may be in possession of land with- sufferance, if the owner suffers him out being a tenant thereof (ante, § to remain in possession a sufficient 2), it does not seem to be applicable length of time to imply an inten- to the case of a servant, since he has tlonal acquiescence in the occu- not the legal possession. See ante, pancy, and it is mot necessary that § 9. the previous holding be that of a In Snedaker v. Powell, 32 Kan. tenant." § 48 MASTER AND SERVANT. 337 ant because he. holds over after the termination of his employ- ment is recognized in several cases,i29 it being said, however, that, if he is permitted to remain in occupation without disturbance for some considerable time, the owner 's consent to his occupancy may be presumed and that he may then be regarded as a tenant at will. It does not seem, however, that such a presumption should be recognized, since ordinarily the failure to eject a trespasser can- not be regarded as creating a tenancy, and a Servant so holding over without right is in no better position than a trespasser .i^*' 123 East Norway Lake Church v. was fixed by the agreement. The Froislie, 37 Minn. 447, 35 N. W. 260; court, however, speaks of him as Kerrains v. People, 60 N. Y. 221, 19 tenant and supports summary pro- Am. Rep. 158; Doyle v. Gibhs, 6 ceedings against him. But com- Lans. (N. Y.) 180; Jennings v. Mc- pare McQuade v. Emmons, 38 N. J. Carthy, 40 N. Y. St. Rep. 678, 16 Law, 397, according to which such N. Y. Supp. 161. occupant would seem prima facie In Morris Canal & Banking Co. v. not to be a tenant. Mitchell, 31 N. J. Law, 99, it was iso it is so decided in Doyle v. held that a "lock tender" on a canal, Gibbs, 6 Lans. (N. Y.) 180. In given, as part compensation for his Jennings v. McCarthy, 40 N. Y. St. services, the right to occupy a dwel- Rep. 678, 16 N. Y. Supp. 161, it was ling house with its garden until dis- regarded as a question for the jury charge, and no longer, was not en- whether such delay in expelling the titled to notice, since the time of employe showed a tenancy, the termination of his occupancy L. and Ten. 22. CHAPTER V. COVENANTS AND OTHER CONTRACTS. S 49. General considerations. 50. Express and implied covenants. 51. Dependent and independent covenants. 52. Joint and several covenants. 53. Execution of instrument containing covenant. a. Execution by lessor. b. Execution by lessee. c. Execution in duplicate. 54. Invalidity of lease. 55. Effect of death. a. Of covenantor. b. Of covenantee. 56. Covenants with agent. a. Under seal. a. Not under seal. c. "With unauthorized agent. 57. Covenants by agent. a. Under seal. b. Not under seal. 58. Construction of covenants. a. General rules. b. Aider by oral evidence. 59. Discharge of liability. 60. Remedy for breach of covenant. 61. Oral contracts in connection with written lease. § 49. General considerations. The legal act by which the relation of landlord and tenant is created, the demise or lease, is, as we have before stated,^ a con- veyance vesting an estate in the tenant, and not a contract im- posing a personal obligation on either party. Almost invariably, 1 See ante, § 16. § 49 COVENANTS AND OTHER CONTRACTS. 339 however, the making of the conveyance is accompanied by the making of one or more contractual stipulations by one or both of the parties to the conveyance.^* If the conveyance is incorpor- ated in a written instrument, as it must be, by reason of the stat- ute of frauds, if the estate conveyed is above a certain quantum as regards duration,^ the accompanying contractual stipulations are ordinarily inserted in the same instrument, and, as we have before remarked,* the instrument as a whole is referred to as a "lease," an expression which is also applied to the whole trans- action considered as a legal act, or aggregate of legal acts, apart from their incorporation in any written instrument. Contrac- tual stipulations entered into by the lessor or lessee, or both, thus evidenced by a written "lease," are ordinarily termed the "cov- enants of the lease," though the word "covenant" is, at common law, properly applicable to such stipulations only if the writing is under the seal of the person bound thereby. It is, no doubt, in part owing to the fact that these contractual stipulations are thus ordinarily incorporated in the same instrument as the demise it- self, that courts so frequently use the expression "contract of lease, ' ' losing sight of the fact that the relation of tenancy is cre- ated, not by a contract, but by the conveyance, by one person to another, of an estate less in quantum than that of grantor. If the conveyance by which the tenancy is created is oral, the accom- panying contractual stipulations would ordinarily be oral.* The possible subjects of such contractual stipulations, entered into at the time of the creation of a tenancy, are innumerable. Various examples of such stipulations will be found in subsequent chapters in which is discussed the effect, on such stipulations, of a transfer of the reversion or of the leasehold.^ A contract by the lessee to pay rent is, in this country, almost universal,^ and among other contracts of frequent occurrence are those in regard la A cestui que trust to whose 2 See ante, § 25. trustee a lease has been made Is not s See ante, § 16. liable upon the covenants to be per * That an oral demise may thus be formed by the lessee, there being no accompanied by contractual stipu- prlvity between him and the lessor, lations, see Bolton v. Tomlin, 5 Adol. Ramage v. Womach [1900] 1 Q. B. & E. 856. 116; Cox v. Bishop, 8 De Gex, M. & = See post, chapters XIV, XV. G. 815. 'See post, § 171. 340 COVENANTS AND OTHER CONTRACTS. | 5q to the mode of using the premises,'^ to make improvements,^ to insure,^ to pay taxes/" and to renew the lease.^^ We will, in this chapter, consider various questions which may arise in connection with such contracts entered into by the parties to a demise, at the time of and as incident to the making of the demise. We will ordinarily use the word "covenant" as descrip- tive of such a contract, if incorporated in a written instrument, without reference to whether such instrument is or is not under seal, this according with ordinary usage in this country. § 50. Express and implied covenants. We not infrequently meet with the expression "implied cove- nants" as distinguished from "express covenants." "Implied covenant ' ' may mean one of two things. It may, firstly, mean the same as "covenant in law," which latter expression has been de- fined as follows: "A covenant in law, properly speaking, is^an agreement which the law infers or implies from the use of cer- tain words having a known legal operation in the creation of an estate; so that, after they have had their primary operation in creating the estate, the law gives them a secondary force, by im- plying an agreement on the part of the grantor to protect and preserve the estate so by those words already created ; as, if a man by deed demise land for years, covenant lies upon the word 'de- mise,' which imports, or makes, a covenant in law for quiet en- joyment ; or, if he grant land by feoffment, covenant will lie upon the word 'dedi'."i2 As we shall see later,!^ a covenant in law for quiet enjoyment arises, in most jurisdictions, as a result of the relation of land- lord and tenant, without reference to the use of the word "de- mise" or any other particular words of leasing, and it seems that there is also implied from the relation, in the case of agricultural land, a covenant by the lessee that he will manage and cultivate the land in a husbandlike manner.^* The second sense in which the expression "implied covenant" is used is that of a covenant not clearly expressed on the face of 7 See post, § 123. 12 Williams v. Burrell, 1 C. B. 402, 8 See post, § 87 e. per Tindal, C. J. 9 See post, § 145. is See post, § 79 a. 10 See post, § 143. "See post, § 119 a (1). 11 See post, chapter XXII. § 50 EXPRESS AND IMPLIED COVENANTS. 341 the instrument, but inferred from language used therein, ordinar- ily in connection with other covenants. A covenant thus inferred from the language used is, however, properly speaking, an express covenant, however obscurely the parties may have expressed their intention in this regard. As remarked in the case from which we have quoted above, "in every case, it is always matter of con- struction to discover what is the sense and meaning of the words employed by the parties in the deed. In some cases, that mean- ing is more clearly expressed, and therefore more easily discov- ered; ia others, it is expressed with more obscurity, and discov- ered with greater difficulty. In some cases it is discovered from one single clause ; in others, it is only to be made out by the com- parison of different and perhaps distant parts of the same instru- ment. But, after the intention and meaning of the parties is once ascertained, after the agreement is once inferred from the words employed in the instrument, all difficulty which has been encount- ered in arriving at such meaning is to be entirely disregarded." Examples of covenants thus existing by way of inference rather than by explicit statement may be given as follows : A lessee hav- ing covenanted that he would, at all seasons of burning lime, sup- ply the lessor with lime at a stipulated price, a covenant was ' ' im- plied" or rather "inferred" that he would burn lime at such seasons.is And a covenant by the lessee to "pen or fold his flock of sheep, which he shall keep upon the said demised premises, upon such parts where the same have been usually folded," was held to require him to keep a flock of sheep.^^ So a recital^^ or an exception^* may constitute a covenant, provided there can be "implied" from it an agreement that a thing shall be done or not done. But from a stipulation that the lessee shall enjoy "all privi- leges" enjoyed by the outgoing tenant, covenants by the lessee similar to those in the lease to the outgoing tenant are not to be inferred.^^ There are authorities to the effect that the words "yielding and rendering" a certain rent are to be regarded as giving rise to an "implied covenant" on the part of the lessee to pay such rent. 15 Shrewsbury v. Gould, 2 Barn. & C. 505; Farrall v. Hilditch, 5 C. B. Aid. 487. (N. S.) 840. 16 Webb V. Plummer, 2 Barn. & is St. Albans v. Ellis, 16 Blast, 352, Aid. 746. iflOmbony v. Jones, 19 N. Y. 234. 17 Sampson v. Easterby, 9 Barn. & 342 COVENANTS AND OTHER CONTRACTS. § 51 If by this is meant that such words give rise to a covenant "in law" rather than an express covenant, a covenant "in fact," the correctness of the statement is open to question. The matter is discussed in a subsequent chapter. 2" § 51. Dependent and independent covenants. Covenants and other contracts entered into on the part of the lessor and lessee may be dependent or independent. If one party may assert the nonperformance by the other of some covenant entered into by the latter, without having himself performed a covenant on his own part to be performed, the covenants are in- dependent, while if he cannot assert such nonperformance by the other unless he has himself performed, the covenants are de- pendent. The question whether covenants, or any contractual stipulations, are dependent or independent is, as between a lessor and lessee, as in any other connection, a question of the intention of the parties as collected from the language used by them.^i The modern tendency, it is said, in reference to contracts generally, is to construe promises as dependent on each other when they form the whole consideration for each other,22 but this criterion would seem to be inapplicable to covenants in leases, since the making of the demise itself, that is, the grant of an estate in the land, ordinarily enters into the consideration.^^ Such covenants call rather for the application of the rule that where a covenant goes only to a part of the consideration on both sides, and a breach of such covenant may be paid for in damages, it is an independent covenant.24 Such covenants might also call for the application of the asserted rule that covenants are to be treated as independent rather than as conditions precedent, especially where some benefit has been derived by the covenantor.^s In accordance, it would seem, with the rules just referred to, the 20 See post, § 171 b. a; notes to Pordage v. Cole, 1 Wms. 21 See Porter v. Shephard, 6 Term. Saund. 520 b; Carpenter v. Creswell, R. 668, per Kenyon, C. J.; Roberts v. 4 Bing. 409. See Palmer v. Meriden Brett, 11 H. L. Cas. 354, per Chelms- Brittannia Co., 188 111. 508, 59 N. B. ford. 247; Butler v. Manny, 53 Mo. 497; 22Hammon, Contracts, p. 905. Lewis v. Chisholm, 68 Ga. 40. 23 See Palmer t. Meriden Brit- 25 Newison v. Smythies, 3 Hurl. & annia Co., 188 111. 508, 59 N, E. 247. N. 840. 24 Boone v. Eyre, 1 H. Bl. 273, note § 51 DEPENDENT AND INDEPENDENT COVENANTS. 343 covenants of a lease have not usually been regarded as depend- ent. Thus a covenant by the lessee to pay rent and one by the lessor to make repairs are, it has been decided, independent, and consequently the lessor's failure to repair as agreed is no defense to a claim for the rent.^e and the failure of the lessor to perform his covenant to make a particular improvement is no defense to an action by him for the lessee's breach of his covenant to make improvements or to pay taxes.^T It has also been decided that the covenant for rent and that for quiet enjoyment are not so dependent that the lessee cannot sue for breach of the latter cove- nant unless he has complied with the f ormer,^* and a like view has been taken as regards the covenant for quiet enjoyment and the lessee's covenant to repair.^f The fact that a covenant by the lessor is phrased "the covenants by the lessee being performed, the lessor covenants," or similar language is used, does not make the covenants dependent.^" The decisions upon the question whether the covenant to pay rent and various covenants on the part of the landlord are so interdependent as to enable the tenant to assert a breach of the latter in defense to an action for rent are considered in a subsequent part of this work.^o" Even though covenants are dependent, the performance of one, as a condition precedent to the assertion of the nonperform- ance of the other, may, it seems, be dispensed with by any action of the person entitled to the prior performance of the covenant in his favor which renders such performance impossible,*^ and it has been asserted that one party may waive the right to prior per- formance of the covenant in his favor by previous repudiation of the covenant on his part to be performed,*^ as he may by accept- ance of the performance of a substantial part of the covenant by 2«See post, § 182 n (2). si See Indianapolis Natural Gas 27 Handschy v. Sutton, 28 Ind. 159. Co. v. Spaugh, 17 Ind. App. 673, 4S 28 Dawson v. Dyer, 5 Barn. & Adol. N. E. 691, where the lessor was to 584; Edge v. Boileau, 16 Q. B. Div. locate the boundaries of a tract ex- 117. cepted from the lease, and it was 2» Edge V. Boileau, 16 Q. B. Div. held that the lessee's refusal to per- 117. mit him to locate them excused him 30 Butler v. Manny, 52 Mo. 497; from so doing. Edge V. Boileau, 16 Q. B. DiT. 117. 32 Warner v. Cochrane, 63 C. C. A. 3oa See post, I 182 r. 207, 128 Fed. 553. 344 COVENANTS AND OTHER CONTRACTS. § 52 the other party (^•^ or by any course of action indicating an inten- tion not to insist upon the prior performance of such covenant.^* § 52. Joint and several covenants. A covenant in a lease may, in case there is more than one lessor or more than one lessee, be either (1) joint, (2) several, or (3) joint and several. A covenant is joint as to the covenantors if the various covenantors are jointly bound, and in such case they must be sued jointly. A covenant is joint as to the covenantees if the various covenantees are jointly entitled to enforce per- formance, and in such case they must sue jointly. A covenant is several as to the covenantors if they are separately liable, and in such case they must be sued separately. A covenant is several as to the covenantees if they are separately entitled to demand performance, and in such case each may sue separately. A cove- nant is joint and several if the promisors are both jointly and severally liable, and in such case they may be sued jointly or separately. A covenant is never joint and several as to the cove- nantees. It must be either joint or several as regards them.^^ The question whether two or more covenantors are jointly lia- ble, or severally liable, or jointly and severally liable, is deter- mined by a construction of the covenant as showing the intention. In the absence of anything to show a contrary intention, as when the parties merely covenant, without more, the liability is joint,^^* and accordingly it was decided that the liability of the lessees on their covenants was joint when the lease was to them as ten- ants in comraonss*" as well as when to them as joint tenants.^^" It was even held that a covenant by the lessee and a surety that they would pay the rent and further that the lessee would repair was 33 Palmer V. Merlden Britannia Co., seq.; Leake, Contracts, (3d Ed.) 371 188 111. 508, 59 N. E. 247; Wiley v. et seq.; Hammon, Contracts, 756 et Inhabitants of Athol, 150 Mass. 426, seq. 23 N. E. 311, 6 L,. R. A. 342. See ssa White v. Tyndall, 13 App. Cas. Leake, Contracts, (3d Ed.) 578; 263; Hammon, Contracts, 769, n. 185; Clark, Contracts, 677; Hammon, piatt. Covenants, 117. Contracts, 923. 35b white v. Tyndall, 13 App. Cas. 3* See cases referred to in 9 Cyclo- 263. pedia Law & Proc. p. 646. ssc Levy v. Sale, 37 Law T. (N. S.) 35 See Piatt, Covenants, 115 et 709. § 53 EXECUTION OF INSTRUMENT. 345 joint as to the repair as well as to the rent-^sa So it has been held that where the lessee and his sureties covenant to pay the rent, the sureties cannot be sued alone.35« On the other hand, if the language used purports to bind the covenantors "severally," the liability is several only, while if it purports to bind them jointly and severally, or to bind them and each of them, the liability is both joint and several.^^* The question whether two or more covenantees are jointly or severally entitled to sue for nonperformance is ordinarily to be determined by the consideration whether the interest of the par- ties is joint or several, provided such construction is not incon- sistent with the language used-^ss Accordingly, if tenants in com- mon join in making a lease, reserving an entire rent, they must join in suing on the covenant for rent, while if they lease their re- spective shares with separate reservations of rent, they must sue separately .35'' Upon a covenant to repair or to make improve- ments, the lessors who joined in the lease must, it seems, sue jointly, since the covenant is such as to give the covenantees a joint interest in the performance.^^' The interest of the cove- nantees is joint, it is said, if a breach as to one is necessarily a breach as to all, and several, if a breach as to one is not necessarily a breach as to all.^^J § 53. Execution of instrument containing covenant. a. Execution by lessor. A paper purporting to be an instru- ment of lease, which the proposed lessor fails to sign, is, even apart from any statutory requirement of a signed writing for the 35d Copland v. Laporte, 3 Adol. &E. Aid. 850; Wilkinson v. Hall, 1 Bing. 517. N. C. 717; Lahy v. Holland, 8 Gill 35e City of Philadelphia v. Reeves, (Md.) 445, 50 Am. Dec. 705. But 48 Pa. 472. That they may be sued in Catlin v. Barnard, 1 Aiken (Vt.) jointly with the lessee, see Elkln v. 9, it was held that words of sev- Moore, 45 Ky. (6 B. Men.) 462. eralty, as well as separate interests 35f Mathewson's Case, 5 Coke, 22 in the rent, were necessary to give b; Robinson v. Walker, 7 Mod. 154, a several right of action. 1 Salk. 393; Northumberland v. Er- ssi Foley v. Addenbrooke, 4 Q. B. rington, 5 Term R. 522. 197; Thompson v. Hakewill, 19 C. B. 3sg Leake, Contracts (3d Ed.) 380; (N. S.) 713; Calvert v. Bradley, 57 Hammon, Contracts, 770; Sorsbie v. U. S. (16 How.) 580. See Brad- Park, 12 Mees. & W. 146. burne v. Botfleld, 14 Mees. & W. 573. 35h Powis v. Smith, 5 Bam. & ssj Dicey, Parties, 114. 346 COVENANTS AND OTHER CONTRACTS. § 53 purpose, a legal nullity, for the purpose either of transferring an estate or creating a contractual obligation on the lessor, it being available only as an admission or to refresh the recollection of a witness as to the terms of an oral letting.^s It may happen, how- ever, that in such a paper are included stipulations to be performed by the lessee, and that, though not executed by the lessor, it is exe- cuted by the lessee, and the question then arises whether the lessee is in such case liable upon his stipulations. It has in England been decided that while ordinarily a covenantee, who is a party to Avhat purports to be an indenture, may sue the covenantor who executed it, though he himself did not execute, a different rule applies in the case of indenture of lease, and that the covenants therein which depend on the interest created by the lease and are made because it is intended to give the covenantor that interest, such as those to pay rent or repair, are not obligatory if the lessor does not execute, not because the lessor is not a party, but because that interest has not been created to which such covenants are an- nexed, and during which only they operate.^'^ "The foundation of the covenant failing, the covenant fails also. Unless there be a term, a covenant to repair during it is void. ' '^® But this princi- ple was not applied where there was a demise purporting to be by tenant for life and remainderman, ' ' according to their respec- tive estates and interests, ' ' and the tenant for life alone executed, it being held that the lessee, having entered into possession, was liable on his covenant to repair.^^ The Adew asserted in England, as above stated, that the lessee is not liable on certain classes of covenants if the lessor fails to execute, has been applied in this country as regards the covenant for rent,*" as well as a covenant to improve.*^ Occasionally the 36 See ante, § 26. lock, 6 Pa. Super. Ct. 573, but the 37 Soprani v. Skurro, Yel. 19; Pit- ground of distinction is expressed man v. Woodbury, 3 Exch. 4; Swat- with considerable obscurity. In man v. Ambler, 8 Exch. 72. Duffee v. Mansfield, 141 Pa. 507, 21 38 Pitman v. Woodbury, 3 Exch. 4. Atl. 675, the omission of the lessor to 30 How V. Greek, 3 Hurl. & C. 391. sign the lease was held not to re- 40 Chesebrough v. Pingree, 72 Mich, lieve one who had under taken to be 438, 40 N. W. 747, 1 L. R. A. 529; responsible for the performance of Nickolls V. Barnes, 32 Neb. 195, 49 the. lessee's covenants, the court say- N. W. 342; Jennings v. McComb, 112 ing: "We need not discuss the legal Pa. 518, 4 Atl. 812. The latter case effect of the omission of the lessor is distinguished in Schultz v. Bur- to sign the paper. It has no bear- § 53 EXECUTION OF INSTRUMENT. 347 '■■■ ■■ -t lessor's failure to execute has been regarded as not affecting the lessee 's liability on his covenants, the latter having taken posses- sion.*2 It -wrould seem that if the lessee does take possession in such a case, he would become a tenant at will or periodic tenant,*^ and as such might be liable upon the stipulations contained in the instrument of lease so far as they may be applicable to that character of tenancy .^^ And he would be liable for use and occu- pation prima facie at the rent named in the lease.*^ b. Execution by lessee. It has been asserted in a number of books of high authority that, by accepting the benefit of a convey- ance which was executed Amder seal by the grantor, one becomes bound by the covenants therein contained to the same extent as if he had actually signed and sealed it,*^ and this doctrine has been adopted in a few states.*'' It has, however, been vigorously questioned, and the old cases cited in its support shown to be in- sufScient for the purpose,*^ and there are occasional decisions in this country to the effect that one merely accepting a lease or other conveyance under the seal of the grantor does not become liable on the stipulations contained therein as if he had signed and sealed it.*" It is difficult, apart from authority, to see why the ing upon the case." As remarked in ment, while the lessee sealed it, does Kaier v. Leahy, 15 Pa. Co. Ct. R. 243, not involve such lack of "mutualty" "if such lease is sufficient to bind as to relieve the lessee from liability the surety, it should seem to need on his covenants. no argument to show that its provi- 43 See ante, § 25 g (1). sions would bind a tenant who has 44 See ante, § 25 g (2). enjoyed the term it creates." In *s see Nickolls v. Barnes, 32 Neb. view of this later case it might, it 195, 49 N. "W. 342; Jennings v. Mc- seems, be questioned whether Jen- Comb, 112 Pa. 518, 4 Atl. 812. nings V. Mc-Comb, supra, is still law 46 Sheppard's Touchstone, 177 ; in that state. Com. Dig., Covenant, A 1; Butler's 41 Sigmund v. Newspaper Co., 82 note to Co. Litt. 230 b. See, also, 111. App. 178. Burnett v. Lynch, 5 Barn. & C. 596. 42Codman v. Hall, 91 Mass. (9 « Midland R. Co. v. Fisher, 125 Allen) 335 (dictum) ; Evans v. Conk- Ind. 19, 24 N. E. 756, 1 Am. St. Rep. lin, 71 Hun, 536, 24 N. Y. Supp. 189; Finley v. Simpson, 22 N. J. Law 1081; Browning v. Walbrun, 45 Mo. (2 Zab.) 311, 53 Am. Dec. 252; At- 477; Oliver v. Alabama Gold Life lantic Dock Co. v. Leavitt, 54 N. Y. Ins. Co., 82 Ala. 417, 2 So. 445; Bow- 35, 13 Am. Rep. 556; Bowen v. Beck, man v. Powell, 127 111. App. 114. 94 N. Y. 86, 46 Am. Rep. 124. In Rice v. Brown, 81 Me. 56, 16 Atl. 48 See Piatt, Covenants, 10-15; 2 334, it is decided that the fact that Piatt, Leases, 6. the lessor merely signed the instru- 49 Hinsdale v. Humphrey, 15 Conn. 348 COVENANTS AND OTHER CONTRACTS. § 53 sealing of an instrument by A should give it the effect of an in- strument sealed by B. It has never been suggested that the sign- ing of an instrument by A would give it the effect of an instru- ment signed by B, and the distinction in principle between the two cases is not plainly apparent. However questionable may be the Tiew that one accepting the benefit of a lease under the seal of the lessor alone becomes lia- ble on stipulations in the instrument as if it were under his seal, that is, in covenant, it seems clear that he thereby subjects himself to a liability in assumpsit,s° provided at least this is not precluded by any statutory requirement of a signed writing. That a lessee merely accepting a lease becomes liable upon a stipulation for the payment of rent has been several times decided,^^ and the same view has been occasionally asserted in connection with other stipu- lations.^ ^ The acceptance of the lease which, by indicating the lessee's assent to the stipulations therein on his part to be per- formed, makes them binding on him, is ordinarily shown by the taking of possession of the premises by the lessee,^^ but it can be 431; Martin v. Drinan, 128 Mass. Co., 51 Ohio St. 40, 36 N. E. 672, 23 515; Newell v. Hill, 43 Mass. (2 L. R. A. 396, 46 Am. St. Rep. 545. Mete.) 180; Burkhardt v. Yates, 161 si Trapnall v. Merrick, 21 Ark. Mass. 591, 37 N. E. 759 (dictum); 503; McParlane v. Williams, 107 111. Maule V. Weaver, 7 Pa. 329; Stab- 33; Doxey's Estate v. Service, 30 ler V. Cowman, 7 Gill. & J. (Md.y Ind. App. 174, 65 N. E. 757; Elir- 284; Western Maryland R. Co. v. mantraut v. Robinson, 52 Minn. 333, OrendorfC, 37 Md. 335; First Congre- 54 N. W. 188; Kabley v. Worcester gational Meeting-House Soc. v. Town Gaslight Co., 102 Mass. 392; Filton of Rochester, 66 Vt. 501, 29 Atl. 810; v. Hamilton City, 6 Nev. 196; Provi- Trustees of Hocking County v. Spen- dence Christian Union v. Eliott, 13 cer, 7 Ohio (pt. 2) 149. R. I. 74; Weaver v. Southern Oregon 50 See Georgia Southern R. Co. v. Co., 31 Or. 14, 48 Pac. 167. See Hins- Reeves, 64 Ga. 492; Newell v. Hill, 43 dale v. Humphrey, 15 Conn. 431. Mass. (2 Mete.) 180; Maine v. Cum- 52 Henderson v. Virden Coal Co., ston, 98 Mass. 317; Maynard v. 78 111. App. 437; West Virginia C. & Moore, 76 N. C. 158; Burbank v. P. R. Co. v. Mclntire, 44 W. Va. 210, Pillsbury, 48 N. H. 475, 97 Am. Dec. 28 S. E. 696; First Congregational 633; Hagerty v. Lee, 54 N. J. Law, Meeting-House Soc. v. Town of 580, 25 Atl. 319, 20 L. R. A. 631; Nat- Rochester, 66 Vt. 501, 29 Atl. 810. ural Gas Co. v. Philadelphia Co., 158 ss See Bonaparte v. Thayer, 95 Md. Pa. 317, 27 Atl. 951; First Congre- 548, 52 Atl. 496; Burkhardt v. Yates, gational Meeting House Soc. v. Town 161 Mass. 591, 37 N. E. 759; Carroll of Rochester, 66 Vt. 501, 29 Atl. 810; v. St. John's Catholic Total Abstin- Hickey v. Lake Shore & M. S. R. ence & Mut. Relief Soc, 125 Mass. § 53 EXECUTION OF INSTRUMENT. 349 shown in other ways, either by express language or by acts.^* It has been decided that if a lease is signed by one only of the two lessees, and the other 's acceptance thereof is in no way indi- cated, the lessees cannot sue on a covenant for quiet enjoyment contained in the instrument.^^ Presumably this means that the covenant, until accepted, constitutes an offer merely, and conse- quently gives no right of action as for a breach by reason of mat- ters occurring before the acceptance. The question might be raised, in the case of a lease for over a year, whether a stipulation binding the lessee to do something at any time during the term, as for instance, to make repairs, is not an agreement not to be performed within a year, within the fourth section of the statute of frauds, so as not to bind the lessee if not evidenced by writing signed by him. This provision of the statute would seem to be particularly applicable if the covenant is to do something at the end of such a term of over a year, as to return the premises in good condition.^s It is possible, however, that the fact that the lessor has executed the lease might be re- garded as bringing the case within the English doctrine, which, through the subject of severe and well considered criticism,^^ has 565; Goldberg v. Wood, 45 Misc. 327, contract by the lessor not to sell in W N. y. Supp. 427. competition with the lessee during 5* In Adams v. Doelger, 15 Misc. the term of one year created by 140, 36 N. Y. Supp. 801, it was held the parol leasing was invalid within that an acceptance was not shown the section of the statute referred to, even by the giving of a check for one and furthermore that its invalidity month's rent, the Intention being invalidated the "entire lease." It that the lessee should sign in order does not seem that a conveyance to be bound. should be regarded as invalid merely 65 Castro V. GafEey, 96 Cal. 421, 31 because a contract made by the Pac. 363. lessor at the time of the conveyance B6 In Brown v. Throop, 59 Conn. 596, is invalid or unenforcible. The 22 Atl. 436, 13 L. R. A. 646, it was court fails to recognize that the held that a promise made by the lease is primarily a conveyance, lessee prior to the commencement In Hall v. Solomon, 61 Conn. 476, of the one year term to refill the 23 Atl. 876, 29 Am. St. Rep. 218, it ice house and leave it full at the end was held that a contract not to en- of the year was not within the stat- gage in a competing business was utory provision, since the season for not within the statute, although filling ice houses would fall within made in connection with a convey- the year. ance in fee, the theory being that In Higgins v. Gager, 65 Ark. 604, it might be performed within a year. 47 S. W. 848, it was held that a " See 1 Smith's Leading Cases 350 COVENANTS AND OTHER CONTRACTS. § 53 been adopted in many states, that the performance of a contract within a year by one party thereto is suffi,cient to take it out of this provision of the statute, although performance by the other is not to take place till after a year ; though, on the other hand, it may well be doubted whether the doing of an act at the time o± the contract, in this case, the making of the lease, is performance within the year by the lessor, so as to validate the contract made by trie other party, in this case the lessee. In England it has been held that if the lease is for a short term, and is consequently valid, though not in writing, by force of the second section of the stat- ute, any oral stipulations made in connection therewith must be regarded as valid without reference to the fourth section.^''* This view has obviously no bearing upon the case of a lease not within the second section, and as the first section involves no requirement of signature by the lessee, the applicability of the second section, even in the case of a short time lease, to relieve the lessee from the obligations of the fourth section, might, it is conceived, apart from the above decision, be open to question. Any statements to the effect that a liability on the part of the lessee arising by reason of the acceptance of a lease is not within the statute of frauds because it is "implied by law"^* are, it is submitted, erroneous. _The liability is, it is conceived, on an express contract to the same extent as if the lessee had orally agreed to perform the stipula- tions enumerated in the lease, and the nature of the contract is not changed by the fact that his assent to the stipulations is shown by his act in accepting the lease and not by words.^** The view that a stipulation on the part of the lessee, performance of which within a year is not contemplated, is within this clause of the statute, would not interfere with the recovery of rent, since the stipulation for its payment may be construed as a reservation,^** rendering the lessee liable therefor by reason of privity of estate as distinct from privity of contract. The peculiar statutory provision which exists in some states, <8th Am. Ed.) 614, 624, notes to 319; Burkhardt v. Yates, 161 Mass. Peter v. Compton; Browne, Stat, of 591, 37 N. E. 759; Providence Chris- Frauds, § 166. tian Union v. Ellott, 13 R. I. 74. 57a Bolton V. Tomlin, 5 Add. & E. ssaSee Keener, Quasi Contracts, 856, followed in Clarke v. Serricks, 4; Pollock, Contracts (7th Ed.) 12. 2 U. C. Q. B. 535. 59 See post, § 170, at note 100. '8 See Maine v. Cumston, 98 Mass. § 54 INVALIDITY OF LEASE. 351 that no action shall be brought on a lease not signed by the party to be charged,®" might, it seems, have the effect of preventing re- covery on any stipulations on the part of the lessee if he has failed to sign the instrument,®^ though, on the other hand, it might be considered that the word "lease" in such a statute was intended to apply only to the conveyance by way of lease, and not to the contractual stipulations of the parties.®^ In one state it appears to have been decided that one who has leased property orally can- not sue on the lessee 's oral agreement to pay rent, for the reason that the case is within the provision of the statute of frauds re- quiring a contract for the sale of lands, tenements or heredita- ments to be in writing.®* c. Execution in duplicate. There is in effect an instrument of lease signed by both the lessor and the lessee, if it is prepared in duplicate, and one duplicate is signed and delivered by the lessor and the other by the lessee.®* § 54. Invalidity of lease. Reference has been previously made®^ to decisions that a cove- nant by the lessee is not valid if the instrument of lease is not 60 See ante, § 25 b, note 349. at notes 354-358). The opinion 61 In Wade v. City of New Bern, makes the briefest - possible ref er- 77 N. C. 460, it was decided that a ence to the point. lessee was not liable under stipula- 6* Fields v. Brown, 188 111. Ill, 58 tions in an instrument of lease not N. E. 977; Campau v. LafCerty, 43 signed by him, in view of the stat- Mich. 429, 5 N. W. 648; Welsh v. lite making void leases and con- Ferd. Heim Brew. Co., 47 Mo. App. tracts for leasing lands "unless put 608; NIcoll v. Burke, 78 N. Y. 580; in writing and signed by the party Duncklee v. Webber, 151 Mass. 408, to be charged therewith." The 24 N. E. 1082; Hughes v. Clark, 10 C. character of the stipulation with B. 905; Houghton v. Koenig, 18 C. -which the lessee had failed to com- B. 235; 2 Blackst. Comm. 296. This ply does not appear from the report, is the usual method of executing the action being merely said to be leases in England. See Fawcett, one for "breach of contract." Landl. & Ten. (3d Ed.) 180. If 62 See ante, § 49. the copy which was signed by the 63 Mathews v. Carlton, 189 Mass. lessor was not delivered, its ex ■285, 76 N. B. 637. As before stated, istence being unknown to the lessee, it would seem that this section of there is no valid lease. Chese- the statute is properly applicable to brough v. Pingree, 72 Mich. 438, 40 an executory contract for a lease N. W. 747, 1 L. R. A. 529. rather than to a lease (ante, § 25 b, 6= See ante, § 53 a. 352 COVENANTS AND OTHER CONTRACTS. | 55 executed by the lessor, for the reason that the covenant is, as it were, conditioned on the passing of the interest with reference to which it is made. So it has been decided that if a conveyance by way of lease is void, as made for an illegal purpose, a covenant by the lessee to pay rent is void.^'' There are, moreover, occasional decisions apparently to the effect that a covenant for rent is not binding on the lessee until the lessor has delivered the lease, and the lessee has accepted it, although the instrument has been exe- cuted by the lessee.^^ And in one state it was decided that, if the instrument was not recorded, there could be no recovery on the covenant for rent, but assumpsit alone would lie.^* On the other hand, the fact that, in the case of a lease by a husband and wife, the latter failed to acknowledge the lease under the statute so as to make it binding on her after the husband 's death, was regarded as no defense to an action on the covenant for rent.®^ § 55. Effect of death. a. Of covenantor. In accordance with the general rule that the executor or administrator is, to the extent of the assets of the estate, liable upon contracts entered into by his testator or intes- tate,™ the executor or administrator of a lessee is liable upon the covenants entered into by the lessee with the lessor to the extent of the assets. '^1 He may, moreover, in the case of covenants run- ee Jevons v. Harridge, 1 Sid. 308, 1 Daly (N. Y.) 226; Kelsey v. Tourte- Saund. 6; May v. Trye, Freem. 447. lotte, 59 Pa. 184. In neither of these In Knlpe v. Palmer, 2 Wills. 130, it cases is there a clear statement of was apparently decided to be a good the grounds of the decision, defense to an action on a covenant 88 Anderson v. Critcher, 11 Gill & by the lessee that the lessor plain- J. (Md.) 450, 37 Am. Dec. 72. See tiff was the committee of a lunatic, ante, § 32. without authority to lease, and a so Toler v. Slater, L. R. 3 Q. B. 42. plea of nil Tiabuit in tenementis was 702 Williams, Executors (9th Ed.) sustained. It does not seem, accord- 1593; Woerner, Administration, § ing to the authorities generally, that 328. such lack of title in the lessor should 'i Brett v. Cumberland, Cro. Jac. have constituted a sufficient defense, 521; Hellier v. Casbard, 1 Sid. 266; the lessee having entered and re- Anonymous, 3 Dyer, 324 a, pi. 34; tained possession under the lease. Buckley v. Pirk, 1 Salk. 316; Wil- See post, § 78 a, note 179. son v. Wigg, 10 East, 313; Wollaston 67 Stetson V. Briggs, 114 Cal. 511, v. Hakewill, 3 Man. & G. 297; Green- 46 Pac. 603; Witthaus v. Starin, 12 leaf v. Allen, 127 Mass. 248; Alsup § 55 EPFE5CT OF DEATH. 353 ning with the land, be subjected to liability as regards his own property, but that possible liability will be considered in another placeJ^ The executor or administrator of the deceased lessor is also liable upon the covenants entered into by the latter to the extent of the assets received by him,'^^ and may, in case the re- version passes to him, be further liable on such covenants as run with the landJ* The rule that the liability survives to the executor or adminis- trator is on principle applicable in the case of a covenant made by a grantee in fee to the same extent as in other cases, and it has accordingly been decided that he is so liable under a covenant for rent contained in a conveyance in fee, a "perpetual lease" as it is sometimes calledJ^ In Pennsylvania, however, it has been decided that the executor or administrator is not in such case bound to perform the covenant, on the ground that this would prevent any distribution of the decedent's estate, and, as all the lands of the decedent are assets for the payment of debts, would constructively V. Banks, 68 Miss. 664, 9 So. 895, that the liability of an executor is 13 L. R. A. 598, 24 Am. St. Rep. 294; apart from any question of Inten- Knotts V. McGregor, 47 W. Va. 566, tlon, he being liable because he is 35 S. E. 899. the personal representative of the "See post, § 158 a (2) (h). testator. "In every case, where the 73 2 Piatt, Leases, 359; Fitzherb- testator is bound by a covenant, the ert's Natura Brevium, 145 (e), note executor shall be bound by it, if it (a); Macartney v. Blundell, 2 Ridgt be not determined by the death of P. C. 113; Chamberlain v. Dunlop, the testator." 2 Williams, Execu- 126 N. Y. 45, 26 N. B. 966, 22 Am. St. tors (9th Ed.) 1629, citing Bro. Cov- jigp go7. enant, pi. 12; Com. Dig., Covenant In Kershaw v. Supplee, 1 Rawle (C 1). The cases stated in Wil- (Pa.) 131, it was decided that a liama' work on page 1630. (Thurse- covenant by a lessor with the lessee den v. Warthen, 2 Bulst. 158; Ma- "for himself and his heirs" to keep cartney v. Blundell, 2 Ridg. P. C. in repair a dam on an adjoining 113) are not in accord with the tract owned by him did not bind the Pennsylvania case. See, also, the lessor's executor to repair the dam, discussion in Chamberlain v. Dun- or render him liable to an action for l^P. 126 N. Y. 45, 26 N. B. 966, 22 nonrepair, the theory being that the -^-m. St. Rep. 807. words of the covenant, and also the ''* See post, § 149 b. fact that the land containing the " Scott v. Lunt's Adm'r, 32 U. S. dam would pass to the heirs and not (7 Pet.) 596; Van Rensselaer's Bx'rs the executor, showed an intention to v. Platner's Bx'rs, 2 Johns. Cas. (N. bind the heirs and not the executor. Y.) 17. In reference to this it may be said L. and Ten. 23. 354 COVENANTS AND OTHER CONTRACTS. X 55 charge the rent of a single lot upon all his landsJ® The reason thus stated in one jurisdiction for relieving the estate of the de- ceased lessee from liability upon a perpetual ground rent cove- nant might as well be asserted, it would seem, in the case of a lease for a limited term, especially when the term is of consider- able length. In the case, for instance, of a term for ninety-nine years, or even for a much shorter period, as for twenty years, the inconvenience of deferring the settlement of the lessee's estate until the removal of all possible liability on account of the breach of his covenants is perfectly evident, and yet the executor or ad- ministrator cannot, so long as he may possibly be held liable on the covenants to the extent of the assets, be safe in undertaking to settle the estate by the payment of legacies. That such pay- ment is no defense to an action on the covenant of the lease has been clearly decided.^'' The difficulty suggested is not indeed peculiar to covenants in connection with leases, but may exist as well in the case of any contract calling for performance at some distant time or throughout a period of considerable duration, or under which liability is dependent on some future contingency. To protect the executor or administrator in such cases, the Eng- lish courts of equity established the rule that he would not be compelled to distribute the estate of a decedent to legatees or next of kin unless indemnified by them against any possible future liability, or unless a sufficient part of the residuary estate was im- pounded for the purpose of meeting any such liability.''^ It was also settled that if an executor, giving the court all the informa- tion possessed by him, acts under the order of the court in making distribution, he will be protected from liability.''^ The executor or administrator of a lessee is now in England protected by a statute,^" providing in effect that if he has sold the leasehold and has assigned the lease to the purchaser, and has set apart a fund TeQuain's Appeal, 22 Pa. 510; Wil- 'o Dean v. Allen, 20 Beav. 1; liams' Appeal, 47 Pa. 283. Knatchbull v. Fearnhead, 3 Mylne & TTSee Davis v. Blackwell, 9 Blng. C. 122; Smith v. Smith, 1 Drew. & 5; Pearson v. Archdeaken, Ale. & N. S. 384; England v. Tredegar, L. R. 23; Curtis v. Hunt, 1 Car. & P. 180. 1 Eq. 344; Bennett v. Lytton, 2 78 Simmons v. Bolland, 3 Mer. Johns. & H. 155; 2 Williams, Execu- 547; Vernon v. Egmont, 1 Bligh (N. tors (9th Ed.) 1204. R.) 554; Cochrane v. Robinson, 11 so 22 & 23 Vict. c. 35, § 27 (Lord St. Sim. 378; Fletcher v. Stevenson, 3 Leonard's Act). Hare, 360, 370. § 55 EFFECT OF DEATH. 355 sufficient to answer any future claim that may be made in respect of any fixed and ascertained sum agreed by the lessee to be laid out on the property, he may, without any order of court, distribute the assets without making any provision for future breaches of covenant, and shall not be subjected to any liability in respect thereof.** In this country there are in a number of states statutory provis- ions as to the presentation of "contingent claims" against the estate of a decedent, and the retention by the personal representa- tive of sufficient assets to meet such claims. A claim based on a covenant by the lessee to keep in repair during the term, or to perform other acts involving expenditures of an uncertain amount, would seem to be contingent within such a statute, and a covenant to pay rent might perhaps be so regarded, when the lessee or the lessee's executor has assigned the leasehold, the liability of the lessee's estate being in such case contingent upon the assignee's failure to perform the covenant.*^ In the case of a covenant by two or more persons, either les- sors, or lessees, the question whether upon the death of one of them his representative is bound thereby is determined, in the absence of statute, by the consideration whether the covenant is joint or several as to the covenantors.** If the covenant is joint, the estate of a deceased covenantor is not liable, but the burden rests upon the survivor or survivors alone.** In a number of juris- dictions, however, it is provided by statute that the estate of a de- ceased joint obligor shall be liable. If the covenant is several,*^ or joint and several,*® as regards the covenantors, the representa- tive of any one of them succeeds to his liability in case of his death, and this is the case even though the covenant is by lessee-s holding as joint tenants, and the entire interest in the leasehold is vested in the survivor.*^ A covenant "in law"** by the lessor, as for instance the cove- si See Dodson v. Sammell, 1 Drew. ss See White v. Tyndall, 13 App. & S. 575. Cas. 263. 82 See 2 Woemer, Administration, se Bnys v. Donnithorne, 2 Burrow, § 394. 1190; Burns v. Bryan, 12 App. Cas. S3 See ante, § 52. 384. 84 Leake, Contracts (3d Ed.) 374; s? See cases cited in last preced- Hammon, Contracts, 761; White v. ing note. Tyndall, 13 App. Cas. 263. ss See ante, § 50. 356 COVENANTS AND OTHER CONTRACTS. | 55 iiant for quiet enjoyment implied from words of demise,^** will not, it is said, extend bej'-ond the estate in respect of which it is made, and it has on this theory been decided that if a tenant for life makes a lease and dies, his executor is not liable on the cove- nant, although the lessee is evicted by the remainderman.^" b. Of covenantee. Upon the death of the person in favor of whom the covenant is made, whether the lessor or the lessee, the right of action on account of any breach of the covenant which occurred in the lifetime of such covenantee passes to his personal representative.^! For any breach subsequent to the death of the covenantee, the right of action is in the person in whom the covenantee's interest in the land is vested at the time of such breach, that is, if the breach is of a covenant in favor of the lessee, his executor or administrator may sue on account of any breach committed before the term has passed out of him into a legatee or purchaser, and, if the covenant was in favor of the lessor, his heir or devisee, or, in ease the reversion is a chattel interest, his per- sonal representative, is the person entitled to sue for a breach as having succeeded to the reversionary interest of the decedent, provided the covenant was one which runs with the land.^^ If not such a covenant, the personal representative of the deceased covenantee could alone sue thereon. In case the covenant is in favor of two or more persons, whether lessors or lessees, the question whether the personal representa- tive of a deceased covenantee may sue thereon is ordinarily de- pendent on whether the covenant is joint or several. If it is joint as regards the covenantees, only the survivor or survivors or the personal representative of the last survivor can sue.^^ On the other hand, if the covenant is several, the personal representa- tive of any deceased covenantee is entitled to sue in respect of his separate interest."* In the case of covenants which run with the 89 See post, § 79 a. Cromp. M. & R. 588 ; Ricketts v. 90 Swann v. Scarles, Moore, 74, 3 "Weaver, 12 Mees. & W. 718. Dyer, 257 a; Bragg v. Wiseman, 1 ^^ See post, §§ 149 b (2), 158 a (2) Brownl. & G. 22; Netherton v. Jes- ^*^- „,,,,„ ,, „.^ „ 93 Williams, Executors (9th Ed.) sop. Holt, 412; Adams v. Gibney, 6 ^^^3. ^^^^.^^^ ^^^ ^^^ ^^^ Bmg. 656; Penfold v. Abbott, 32 Law ^^^^^ ^_ Ardenbrooke, 4 Q. B. 197; ^- ^- ^- ^'^- Bradburne v. Botfield, 14 Mees. & W. 91 Lucy V. Levington, 2 Lev. 26, 1 559 Vent. 175; Raymond v. Fitch, 2 94 Williams, Executors, 1774. § 56 COVENANTS WITH AGENT. 357 land, neither the surviving covenantee nor the personal represen- tative of a deceased covenantee may properly, it seems, sue on account of a breach which occurs after the estate, whether rever- sionary or leasehold, which was originally vested in the cove- nantee, has been entirely transferred to a stranger or strangers, since in such case the right of action is in the person in whom the reversion or leasehold may at the time be vested, the case being analogous to that of a transfer of his entire interest by a single lessor or lessee.^s in case the interest in the land of one of two or more joint covenantees is still retained by him at the time of the breach, though the interests of the others have been transferred, presumably the survivors of the original covenantees should join with the transferee in a suit on the covenant.^® § 56. Covenants with agent. a. Under seal. In accordance with the common law rule that those persons only can sue upon a sealed instrument who are par- ties thereto, it is ordinarily held that where a contract under seal is made with an agent in his own name, the principal cannot sue thereon.^'^ And this view has occasionally been asserted with reference to the right of the principal to sue on covenants on the part of the lessee, contained in an instrument of lease, which is made and executed by an agent as lessor without naming the principal, or with only incidental reference to the principal, the principal being, in such cases, precluded from suing thereon.''* b. Not under seal. In the case of stipulations contained in an instrument of lease not under seal, the undisclosed principal 95 See post, § 148. not "C. D. by A. B." Mussey v. 98 See Foley v. Addenbrooke, 4 Q. Scott, 61 Mass. (7 Cush.) 215, 54 B. 197; Tbompson v. Hakewill, 19 C. Am. Dec. 719. B. (N. S.) 713. In Harms v. McCormick, 132 111. 97 Clarke & Skyles, Agency, §§ 463, 105, 22 N. E. 511, it was decided that 535; Tiffany, Agency, pp. 243, 308. if one joint owner of land made a 98 Loeb V. Harris, 50 N. J. Law, lease "for himself and as agent of" 382, 13 Atl. 602; Schaefer v. Henkel, the other owners, he alone signing 75 N. Y. 378; McOolgan v. Katz, 29 and sealing it in his own name, he Misc. 136, 60 N. Y. Supp. 291. But could sue on the covenant for rent, the principal's right to sue is not ex- the rule above referred to not apply- cluded merely because the instru- ing because the agent had himsel* ment is signed "A. B. for C. D." and an interest in the land. 358 COVENANTS AND OTHER CONTRACTS. § 57 of the person with whom the stipulations were made, whether the ostensible lessor or lessee, would, it seems clear, have the right to enforce such stipulations,®® in accordance with the rules usually governing as to the rights of an undisclosed principal,^'"' though he would not have this right, presumably, if the agent represented himself as the real and only principal.^^i The right of the un- disclosed principal to enforce the contract made with his agent does not exclude the right of the agent himself to sue thereon.ioa c. With unauthorized agent. The question might arise whether, when a lease is made in behalf of one person by another, acting without authority, the person in behalf of whom it pur- ports to be made may sue on the covenants which may be entered into by the lessee. The question does not appear to have been the subject of adjudication, but applying the principles ordinarily controlling in the case of unauthorized acts in behalf of another, it seems that the person named as lessor would have the right to accept the benefit of the lessee 's covenants, provided at least the lessee does not recede therefrom before they are accepted liy the intended lessor.^"* And, presumably, any acts sufficient to ratify the lease, regarded as a conveyance, would be considered an ac- ceptance of the lessor's covenants.!^* It does not seem that the lessor named should be allowed thus to accept the benefit of the lessee's covenants unless the lease is validly ratified by him, as, for instance, by writing in ease a prior authority to the agent to make the lease would necessarily have taken that form. § 57. Covenants by agent, a. Under seal. In accordance with the common-law rule that 90 In Nicoll V. Burke, 78 N. Y. 580, 100 Clark & Skyles, Agency, §§ 526, it was decided that the principal 528; Tiffany, Agency, p. 303. could enforce the contract to pay 101 Huffcutt, Agency (2d Ed.) § rent, although the lease purported ^33 to be made by "W. & E., agents, as .^^ Hunter v. Adoue, 38 Tex. Civ. landlords." „„.,,,, App. 542, 86 S. W. 622. See Huff- In Nolen V. Royston, 36 Ark. 561, ^ , ^„^ „j . „„„ though a note for the rent was pay- •="*' ^^^'^'^'^ ^^d Ed.) 208. able to the landlord's agent, the "' ^ee Huftcut, Agency (2d Ed.) landlord was regarded as entitled to § ^8 (5); Tiffany, Agency, § 18 (b). enforce a lien therefor in his own "* See ante, § 34 c. § 57 COVENANTS BY AGENT. 359 one not a party to a sealed instrument cannot ordinarily be held liable thereunder,i05 a person is not liable on the covenants in a sealed instrument of lease merely because it is executed by his agent, unless it appears from the instrument as a whole that the instrument was intended to bind the principal, and unless this appears the agent will himself ordinarily be liable on the cove- nants.^"^ b. Not under seal. In the case of stipulations contained in an instrument of lease not under seal, the undisclosed principal is, it seems, liable thereon, although the party by whom the liabil- ity is asserted supposed that he was contracting with the agent only, acting in his own behalf. ^"^ One executing a lease in his own name, or, it seems, accepting a lease which purports to bind him personally, cannot relieve him- self from liability on the stipulations thereof by showing that he was acting as agent for another.^"*' ^^^ A disclosed principal is always liable upon contracts made in his behalf which are within the scope of the agent's actual or ostensible authority, and this rule would apply as against a lessor or lessee acting through an agent. 105 Huffcut, Agency (2d Ed.) 170, discovered none, holding that, in the 237; Tiffany, Agency, § 83. absence of a personal promise or 10c Kiersted v. Orange & A. R. Co., covenant, one signing a contract, 69 N. Y. 345, 25 Am. Rep. 199; Soulo ^u„ therein represents himself to V. Palmer, 49 N. Y. Supp. 475; Len- ^^ ^^^ ^^ ^ ^.^^j^^^^ ^^ ney v. Plnley, 118 Ga. 718, 45 S. B, known principal, and who assumes to contract lor such principal only, 593. See Northwestern Distilling Co. V. Brant, 69 111. 658, 18 Am. Rep. 631; Haley v. Boston Belting Co., has been held personally liable upon HO Mass 73 2 N. E. 785. ^^^ covenants contained in such con- In Whitford v. Laidler, 94 N. Y. tract." This seems to assume the 145, 46 Am. Rep. 131, a lease was question at issue, whether the indi- made to certain individuals, naming viduil signers did appear to be act- them and describing them as officials ing in a merely representative ca- of an association named, and to paoity. their successors in office, and such "7 TlflEany, Agency, p. 231; Clark individuals, "parties of the second & Skyles, Agency, § 457 et sea. In part," covenanted on behalf of Woolsey v. Henke, 125 Wis. 134, 103 "themselves and their successors in N. W. 267, it was decided that the office" to pay the rent. It was held presence of a seal was immaterial in that such individuals were not liable this regard, if not being necessary for the rent, the court saying that to the validity of the instrument. "no case has been cited, and we have io». i"» See Stobie v. Dills, 62 111. 360 COVENANTS AND OTHER CONTRACTS. § 58 § 58. Construction of covenants. a. General rules. We have before referred to certain general rules of construction which are applicable to instruments of lease as well as to other written instruments, and these rules ordinarily apply to the covenants in the instrument of lease as to other parts thereof. 11" Every covenant is to be expounded with regard to its context and such exposition must be upon the whole instrument, ex antecedentibus et consequentihus, and according to the reasonable sense and construction of the words." i If the words of a covenant are of doubtful meaning, they will, it is said, be construed most strongly against the covenantor." ^ The construction which has been placed upon particular covenants in connection with leases will be considered in different parts of this work in connection with the discussion of the various matters which may have been the subject of such covenants."^ b. Aider by oral evidence. In order to aid in the construc- tion of an instrument of lease, as of any other writing, oral evi- dence is admissible, provided there is any ambiguity on the face 432; Seaver v. Coburn, 64 Mass. (10 be kept on the farm, the lessor Cush.) 324. agreed to provide pasture for 100 110 See ante, § 36. head of cattle and cleared land 111 Iggulden V. May, 7 Eaat, 241, enough to provide feed enough for per Ellenborough, C. J. See cases that number, not less than 100 acres, cited 11 Cyclopedia Law & Proc. p. the lessor was not bound to provide 1051. I'OO acres in addition to that de- 112 Bac. Abr., Covenant (F) ; Love scribed in the lease. It may per- V. Pares, 13 Eagt, 80. See Carpenter haps be questioned whether there V. Pocasset Mfg. Co., 180 Mass. 131, was a technical lease in this case 61 N. E. 816, and cases cited 11 Cyc- giving the lessee exclusive posses- lopedia Law & Proc. p. 1052. sion. In Butt v. Maier & Zobeleln Brew- In Hume v. Hendrlckson, 79 N. Y. ery, 6 Cal. App. 581, 92 Pac. 652, it 117, it was decided that a lessee cov- Is said that the lessor is always to enanting to pay a mortgage on the be regarded as the promisor within leasehold was liable to the lessor a statutory provision that in case of covenantee immediately upon the uncertainty the construction of a mortgage becoming due and remain- contract is to be against the prom- Ing unpaid. In Ardesco Oil Co. v. isor. North American Oil & Min. Co., 66 113 In Malick v. Kellogg, 118 Wis. Pa. 375, it was decided that such a 405, 95 N. W. 372, it was decided covenant by the lessee to pay cer- that where, upon leasing a farm for tain overdue claims on the property dairy purposes at a rental to be de- was broken by a refusal to pay at termined by the number of cattle to once or within a reasonable time. § 59 . DISCHARGE OF LIABILITY. 361 of the mstrument, to show the sense in which the language was used.^^* § 59. Discharge of liability. The liability of a lessor or lessee under a contract entered into by him in connection with the lease, for the purpose of defining the rights of the parties with reference to the holding thereunder, ordinarily terminates, as regards breaches which have not yet oc- curred, upon the termination of the tenancy. In other words such a contract, entered into in view of the creation of an estate in the lessee, is prima facie intended to operate only so long as an estate remains in him. Certain classes of contractual stipulations: entered into by the lessor or lessee in connection with the making of the demise might, no doubt, by express provision, continue after the termination of the tenancy, and that one may thus agree to pay "rent," so-called, even after the termination of the tenancy by forfeiture, has been jadieially recognized.^^^ Some stipula- tions, moreover, are in their nature such as to call for perform- 11* Bell's Adm'x v. Golding, 27 Ind. month. And in Calhoun v. Wilson, 173; Ingram V. Dalley, 123 Iowa, 188, 27 Grat. (Va.) 639, It was decided 98 N. W. 627; American Sav. Bank that, the lessee having covenanted v. Shaver Carriage Co., Ill Iowa, to make repairs, without naming any 137, 82 N. W. 484; Bellinger v. time for performance, evidence was Kitts, 6 Barb. (N. Y.) 273; Equator not admissible to show the Intention Min. & Smelting Co. v. Guanella, 18 in this respect. Colo. 548, 33 Pac. 613; Hartsell v. That such evidence is not admis- Myers, 57 Miss. 135; Gumming v. sible in the absence of any ambig- Barber, 99 N. C. 332, B S. E. 903; uity, see Rhodes v. Purvis, 74 Ark. Bartley v. Phillips, 165 Pa. 325, 30 227, 85 S. W. 235; Carter v. William- Atl. 842; O'Neill v. Ogden Aerie No. son, 106 Ga. 280, 31 S. E. 651; Rector 118, 32 Utah, 162, 89 Pac. 464; Pine v. Hartford Deposit Co., 190 111.' 380, Beach Inv. Corp. v. Columbia Amuse- 60 N. E. 528; Tallmadge v. Hooper, ment Co., 106 Va. 810, 56 S. B. 822. 37 Or. 503, 61 Pac. 349; Beadle v. But see Castleman v. Du Val, 89 Md. Monroe, 68 Hun, 323, 22 N. Y. Supp. 657, 43 Atl. 821, where it was de- 981 ; Gerry v. Siebrecht, 88 N. Y. Supp. cided that evidence was not admis- 1034; Hall v. Phillips, 164 Pa. 494, sible to show whether, in the case of 30 Atl. 353; Easterby v. Heilbron, 1 a tenancy commencing on the twen- McMuI. (S. C.) 462. For a dlscus- tieth day of one month, a provision slon and criticism of this limitation for the payment of rent on the twen- on the general rule, see 4 Wlgmore, tieth day of each month meant the Evidence, § 2462 et seq. flrst or the last day of the current no See post, § 182 J. 362 COVENANTS AND OTHER CONTRACTS. § 59 tmce after rather than during the term. In the absence of a clear showing of intention otherwise, however, the "cov- enants of a lease" will, it is conceived, usually be construed to endure only so long as the leasehold interest endures. It may happen that, even before the termination of a tenancy, a contractual stipulation entered into in connection with the creation of the tenancy may cease to be operative, that is, may be discharged, by the act of the parties. The principles appli- cable to such a discharge are no doubt the same in the case of a contract entered into by the lessor or lessee at the time of a demise, "a covenant of the lease," as in the case of any other con- tract. At common law the liability under a technical covenant, that is, a contract under seal, can be discharged by agreement only if this is under seal, that is, there must be a technical release,ii® while if not under seal it may be discharged by an oral agree- ment based on a suflficient consideration.^^^ In many of the states the rules as to the discharge of contracts under seal have been modified to the extent that if the parties have acted on a parol agreement looking to the discharge of such a contract, the contract is diseharged.^i* And this view has been applied in the case of an oral agreement by the lessor to reduce the rent covenanted to be paid, such reduced amount having been ac- cepted in satisfaction of the lessor's claim. ^i® no Piatt, Covenants, 590'; Shep- does not appear whether the covenant pard's Touchs.tone, 181; White v. was under seal. Parkin, 12 Bast, 578; Delacroix v. In Illinois the rule seems to be Bulkley, 13 Wend. (N. Y.) 71. that a contract under seal may be 117 Hammon, Contracts, 853, 861. released or discharged by oral agree- 118 Hammon, Contracts, 860; Page, ment, but that it cannot be modified Contracts, 1345. thereby, and the courts there have 119 McKenzie v. Harrison, 120 N. applied this theory in the case of Y. 260, 24 N. E. 458, 8 L. R. A. 257, leases by regarding an instrument 17 Am. St. Rep. 638; Snow v. Gries- of lease as a single contract, and a heimer, 220 111. 106, 77 N. E. 110. discharge or modification of any In Jones v. Daly, 73 App. Div. 220, covenant thereof as a modification 76 N. Y. Supp. 725, afd. without opin- of this contract, and as consequently ion in 175 N. Y. 520, 67 N. E. 1083, invalid and nugatory, while they re- it was assumed that an oral agree- gard an oral surrender of the lease- ment not to enforce the lessee's cov- hold as a release or discharge, and enant was binding on the lessor. If as consequently valid. Alschuler v. § 59 DISCHARGE OF LIABILITY. 363 Apart from any difficulties arising from the presence of a seal, a subsequent oral contract discharging a prior contract is, if based on a valid consideration, unquestionably effective for this purpose,i2o and, consequently, no doubt, by such an agree- ment any covenant of a lease, not under seal, may be discharged. If, on the other hand, there is no consideration for the agree- ment of the covenantee to discharge the covenantor, it does not seem that such agreement should be given any effect.'^^^ Such is the rule ordinarily prevailing in this country with reference to contracts generally,i^2 \,^i there are occasional decisions and dicta to the effect that an agreement to discharge a unilateral contract is valid though not supported by a consideration.i^s and there are eases which, with out any discussion of the matter, seem to assume the effectiA'eness of a discharge or "waiver" of a covenant in a lease, though not based on any consideration,^^* a view which is difficult to support on principle, in the absence of an estoppel upon the covenantee to assert the covenant by SchifE, 164 111. 298, 45 N. B. 424; Brown, 81 Me. 56, 16 Atl. 334, the Leavitt v. Stern, 159 111. 526, 42 N. court regarded the question whether E. 869; Knefel v. Daly, 91 111. App. there was "a waiver of the contract 321. of lease"- by the lessor as one for the 120 Hammon, Contracts, § 425; jury. The action was one of coven- Clark, Contracts, 608. ant by the lessor, and the question 121 That a consideration is neces- must really hare been whether there sary to support an agreement to dis- was a "waiver" of the lessee's cov- charge a covenant in a lease, see enant. The court assumes, appar- Loach v. Farnum, 90 111. 368; Post ently, that there is a waiver, re- V. Vetter, 2 E. D. Smith (N. Y.) 248; lievlng the lessee from liability, in Spota V. Hayes, 36 Misc. 532, 73 N. case the lessor explicitly indicates Y. Supp. 959; Jones v. Daly, 73 App. an intention not to enforce such lia- Div. 220, 76 N. Y. Supp. 725, afd. bility. without opinion 175 N. Y. 520, 67 In Thomson-Houston Elec. Co. v. N. E. 1083. Durant Land Imp. Co., 144 N. Y. 122 See Hammon, Contracts, §' 34, it was decided that the right to 425; Clark, Contracts, 609; Harri- sue on the lessor's covenant to re- man, Contracts, § 505. pair was not lost by the lessee's con- 123 See Professor Williston's ad- tinuance in possession with knowl- mirable chapter on "Discharge of edge of the breach; and in Stearns Contracts" in his edition of Wald's v. Lichtenstein, 48 App. Div. 498, 62 Pollock on Contracts. N. Y. Supp. 949, a like decision was 124 Dauchy Iron Works v. Toles, made with reference to a breach of 76 111. App. 669; Boos v. Dulin, 103 a covenant to change the tenants of Iowa, 331, 72 N. W. 533. In Rice v. adjoining premises. 364 COVENANTS AND OTHER CONTRACTS. § 60 reason of his having induced the covenantor to act on the theory that performance will not be required. The fact that the lessor fails to exercise a right of re-entry for breach of cov- enant does not affect his right to recover damages for the breach.125 § 60. Remedy for breach of covenant. The remedy for breach of a covenant or other contract entered into in connection with a conveyance by way of lease is ordin- arily by an action for damages. Occasionally the character of the covenant, or the circumstances of the parties, may be such as to justify a decree of specific performance, i^e or an injunc- tion to prevent a breach.^^T The damages recoverable must be restricted to compensation for the injury actually> caused by the breach, and loss which may or may not have been caused by the breach cannot be con- sidered.12* § 61. Oral contracts in connection with written lease. The "parol evidence rule," excluding evidence of oral agree- ments to -^-ary or contradict the terms of a written instrument, has been frequently applied in connection with instruments of lease, with the result of excluding evidence of oral agreements, or statements made either before the execution of the written instrument or contemporaneously therewith.^ 29 Thus it has 125 McKildoe's Ex'r v. Darracott, was an express stipulation for their 13 Grat. (Va.) 278; Spencer v. recovery in case the covenantee was Dougherty, 23 111. App. 399. under the necessity of employing an • 126 See e. g., § 233. attorney by reason of the breach. 127 See e. g., §§ 116 g, 123 1, 152 k. See Richards v. Bestor, 90 Ala. 352, 128 In United States Trust Co. v. 8 So. 30. O'Brien, 46 N. Y. St. Rep. 238, 18 N. 129 gee Henderson v. Arthur Y. Supp. 798, it was held that for [1907] 1 K. B. 10; Kelley v. Chicago, breach of covenant by the lessee to M. & St. P. R. Co., 93 Iowa, 436, 61 allow the lessor to show the premises N. W. 957; Naumberg v. Young, 44 and to post a notice thereon, dam- N. J. Law, 331, 43 Am. Rep. 380; ages could not be recovered on the Howard v. Thomas, 12 Ohio St. ZO'l; theory that this caused the premises Ninman v. Suhr, 91 Wis. 392, 64 N. to remain unlet for five months. W. 1035; Grashaw v. Wilson, 123 The covenantee has been allowed Mich. 364, 82 N. W. 73; Hallenbeck v. to recover attorney's fees when there Chapman, 72 N. J. Law, 201, 63 All. § 61 ORAL CONTRACTS ACCOMPANYING WRITTEN LEASE. 365 been decided that evidence cannot be given of oral agreements by the lessor to make repairs or improvements upon the prem- ises,^*" to place furniture thereon,i^' not to carry on business in competition with the lessee,!*^ to use the adjoining premises only in a particular way/-^^ to put the lessee in possession,^** to allow the lessee to remove fixtures.i*^ go evidence of an oral agreement by the lessee not to assign the leasehold,^*® to use the premises for a particular purpose only,isT to leave hay and fodder on the prem- ises at the end of the term,i38 has been excluded. Likewise, statements, in the nature of warranties, by the lessor, as to the physical condition of the premises or a part thereof at the time of the lease, have been excluded,!^^ as have agreements varying 498; Cleves v. Willoughby, 7 Hill 117 Ind. 512, 20 N. E. 428, 3 L. R. A. (N. Y.) 83; Hall v. Beston, 26 App. 308; Lerch v. Sioux City Times Co., Div. 105, 49 N. Y. Supp. 811, af d. 91 Iowa, 750, 60 N. W. 611; Tracy v. 165 N. Y. 632, 59 N. E. 1123; Smith Union Iron Works Co., 104 Mo. 193, V. Smull, 69 App. Div. 452, 74 N. 16 S. W. 203; Hightower v. Henry, Y. Supp. 1061; Van Berhoef v. Hart- 85 Miss. 476, 37 So. 745. mann, 63 App. Div. 419, 71 N. Y'. isi Angell v. Duke, 32 Law T. (N. Supp. 552; Thomas .v. Dingleman, 45 S.) 320; Wilson v. Deen, 74 N. Y. Misc. 379, 90 N. Y. Supp. 436; DalJ 531. V. Piza, 105 App. Div. 496, 94 N. Y, 132 Doyle v. Dixon, 94 Mass. (12 Supp. 154; Greene v. Ker, 48 Misc. Allen) 576; Scholz v. Dankert, 69 609, 95 N. Y. Supp. 569; Howard v. Wis. 416, 34 N. W. 394. Thomas, 12 Ohio St. 201; Hartford 133 Haycock v. Johnston, 81 Minn. & N. Y. Steamboat Co. v. City of 49, 83 N. W. 494; Gray v. Gaff, 8 Mo. New York, 78 N. Y. 1; Gandy v. App. 329; Johnson v. Oppe^heim, Wiltse (Neb.) 112 N. W. 569; Moore- 55 N. Y. 280. Cortes Canal Co. v. Gyle, 36 Tex. Civ. 134 Coaens v. Stevenson, 5 Serg. & App. 442, 82 S. W. 350; Wodock v. R. (Pa.) 421. Robinson, 148 Pa. 503, 24 Atl. 73; 135 Jungerman v. Bovee, 19 Cal. Kline v. McLain, 33 W. Va. 32, 10 354. Compare Ryder v. Faxon, 171 S. E. 11, 5 L. R. A. 400; Stoddard v. Mass. 206, 50 N. B. 631, 68 Am. St. Nelson, 17 Or. 417, 21 Pac. 456; York Rep. 417. V. Steward, 21 Mont. 515, 55 Pac. 29, ise Nave v. Berry, 22 Ala. 382. 43 L. R. A. 125; Hunter v. Hatha- 137 Burr v. Spencer, 26 Conn. 159, way, 108 Wis. 620, 84 N. W. 996. 68 Am. Dee. 379; Harrison v. Howe, i3»Morningstar v. Querens, 142 109 Mich. 476, 67 N. W. 527; Rickard Ala. 186, 37 Sc>. 825; Averill v. Saw- v. Dana, 74 Vt. 74, 52 Atl. 113. yer, 62 Conn. 560, 27 Atl. 73; Gul- i3»In re Luckenbill, 127 Fed. 984. liver V. Fowler, 64 Conn. 556, 30 Atl. iss Carter v. Williamson, 106 Ga. 852; McLean v. Nicol, 43 Minn. 169, 280, 31 S. E. 651; Brigham v. Rog- 45 N. W. 15; Welshbilllg v. Dien- ers, 17 Mass. 571; Button v. Gerrish, hart, 65 Ind. 94; Dlven v. Johnson, 63 Mass. (9 Gush.) 89, 55 Am. Dec. 366 COVENANTS AND OTHER CONTRACTS. | 61 the amount of rent to be paid,!*" or the mode of its payment,i*^ as well as provisions that payments of rent should cease on a certain contingency, such as the destruction of the building on the premises/*^ or that the term should come to an end on a contingency named.^** It has been decided that, by reason of the "parol evidence rule," it cannot be shown, as against the lessor, that one named as a lessee was a surety only for the performance of his cov- enants by the other lessee named.^^* This view has, however, been questioned.!*^ As shown by the investigations of the recent scientific students of the law of evidence, the so-called "parol evidence rule" is properly not a rule of evidence, but one of substantive law, the principle involved being that, after the whole of a transaction has been embodied in writing, the writing alone determines what the transaction is, and any other utterances of the parties are legally immaterial for this purpose.i*« On the other hand, if not the whole, but a part only, of the transaction has been embodied in writing, then the part or parts not so embodied may be proven orally. Such parts of the transaction, not embodied in the writing and as to which, therefore, the writing is not conclusive, are ordinarily referred to as "collateral" agreements.i*^ 45; Stevens v. Pierce, 151 Mass. 201, Farrington, 61 Hun, 620, 15 N. Y. 23 N. E. 1006; Naumberg v. Young, gupp. 452; stull v. Thompson, 154 44 N. J. Law, 331, 43 Am. Rep. 380; p^. 43^ go Atl. 890; Henderson v. Carey v. Kreizer, 26 Misc. 755, 57 N. ^^hur [1907] 1 K. B. 10. Y. Supp. 79; Wilcox v. Cate, 65 Vt. ,,,-^ ^. „ „„ „ ,^„ 478, 26 Atl. 1105; Wilkinson v. Clau- "^ ^^rtm v. Berens, 67 Pa. 459; son, 29 Minn. 91, 12 N. W. 147; York ^'^"^"^ ^- '^"^^«"' ^^ ^^^- ^^^' ^ ^°- V. Steward, 21 Mont. 515, 55 Pac. 29, ^^' ^^^^^""^ ^- Staunton, 88 Ga. 298, 43 L. R. A. 125. 14 S. E. 479. 1*0 Preston v. Merceau, 2 W. Bl. "' Randolph v. Helps, 9 Colo. 29, 1249; Henson v. Cope, 3 Scott N. R. ^° ^^•=- ^45; Taylor v. Hunt, 118 48; Lord v. Haufe, 77 111. App. 91; ^^ °- 1^^' 2* S. B. 359; Charles v. Williams v. Kent, 67 Md. 350, 10 Atl. ^J^"""^' ^^ S. C. 544, 8 S. B. 1. 228; Merchants' State Bank v. "*Hobbs v. Batory, 86 Md. 68, 37 Ruettell, 12 N. D. 519, 97 N. W. 853; -*-tl- '^'^^■ Liebeskind v. Moore Co., 84 N. Y. ^*^ See 4 Wigmore, Evidence, § Supp. 850. See Stevens v. Haskell, 2438. 70 Me. 202. "6 Thayer, Evidence, c. 10; 4 Wig- 1*1 Pickett V. Ferguson, 45 Ark. more. Evidence, c. 85. 177, 55 Am. Rep. 545; Collamer v. 1*^ See 1 Greenleaf, Evidence I 61 ORAL CONTRACTS ACCOMPANYING WRITTEN LEA'SE. 367 Whether, in any case, any oral agreement can thus be regarded as "collateral," so as to be admissible in evidence, is a question of the intention of the parties. If they intended the writing to state the whole transaction, as finally agreed on and deter- mined, then no oral agreement in reference to any details there- of can be introduced, while if they intended the writing to cover only a part of the details of the transaction, a separate oral agreement as to details not intended to be covered by the writ- ing is admissible.! *8 The intention in this respect is, it is said, "to be sought in the conduct and language of the parties and the surrounding circumstances," the most satisfactory criterion in this respect being whether the "particular element of the al- leged extrinsic negotiation is dealt with at all in the writing, "i** The distinction, above referred to, between collateral agree- ments and agreements not collateral, has been occasionally ap- plied in the case of leases, with the effect of admitting evidence of prior or contemporaneous oral agreements between the lessor and lessee as being collateral to the matters embodied in the writ- ten instrument of lease. Thus it has been decided that, in the par- ticular case, an oral agreement by the lessor to make alterations or repairs was collateral, and so admissible in evidence,!^" and the same view has been asserted as to a warranty by him in regard to the condition of the premises,^®! an agreement by him to keep down the game on the premises,!^^ ^n agreement that the lessee should make repairs and be credited therefor on the rent,i5* an agreement by the lessee to pay to the landlord part of the price received by him in case of a sale of his rights under the lease,!^* and an agreement by the lessor not to engage in a competing business.^ ^^ It has even been decided that, although (16th Ed.) § 284 a; 2 Taylor, Bvi- isi De Lassalle v. Guildford [1901] dence (9th Ed.) § 1135. 2 K. B. 215; Hines v. Willcox, 96 148 4 Wigmore, Evidence, § 2430. Tenn. 148, 33 S. "W. 914, 34 L. R. A. 149 4 Wigmore, Evidence, § 2430. 824, 54 Am. St. Rep. 823. 150 Vandegrift v. Abbott, 75 Ala. is^Ersklne v. Adeane, 8 Ch. App. 487; Kenyon v. Berghel, 13 La. 133; 756; Morgan v. Griffith, L. R. 6 Excb. Graffam v. Pierce, 143 Mass. 386, 9 70. N. B. 819; Taylor v. Finnlgan, 189 iss Johnson v. Blair, 126 Pa. 426, Mass. 568, 76 N. E. 203, 2 L. R. A. 17 Atl. 663. (N. S.) 973; Williams v. Salmond, i54Raub v. Barbour, 17 D. C. (6 79 S. C. 459, 61 S. E. 79; Hines v. Mackey) 245. Willcox, 96 Tenn. 148, 33 S. W. 914, losWelz v. Rhodius, 87 Ind. 1, 44 34 L. R. A. 824, 54 Am. St. Rep. 823. Am. Rep. 747. 368 COVENANTS AND OTHER CONTRACTS. § 61 the instrument of lease provided that the lessee should make all necessary improvements and repairs and should leave them at the end of the term, an oral agreement by the lessor on a sep- arate consideration that the lessee should have the use of fixtures placed thereon by a former tenant was admissible, as well as the lessor's agreement to replace them, after their removal by the former tenant.^^® The fact that an agreement in reference to a particular matter has been regarded' as collateral in one case is obviously no rea- son for regarding it as necessarily such in another case, the ques- tion being, as before indicated, one of the intention of the parties. If the particular detail of the transaction v^hich is the subject of such agreement is specifically referred to in the written in- strument, the agreement cannot ordinarily be regarded as col- lateral, while if that detail is not there referred to, the agree- ment may possibly, in view of this and other circumstances, be so regarded. But though the question whether the agreement is collateral is properly to be determined by the consideration of the circumstances of the particular case, the tendency of the decisions, in this country at least, is, as appears by the numerous cases first above cited, to regard an oral agreement by a lessor or lessee as not collateral, and consequently to exclude it from consideration, even though the specific subject of that agreement is. not specifically referred to in the written instrument ; and it may be questioned whether the decisions last referred to, that the agreement in the particular case was collateral, would have been the same had the cases arisen in other jurisdictions, where the tendency of the courts might be to apply the general rule of exclusion with -the utmost strictness. The tendency of the majority of the courts seem to be to assume that the instrument of lease embodies the whole transaction, leaving nothing to be the subject of collateral agreement, unless the face of the instru- ment shows that it is not intended to be complete, and this assumption is perhaps in accordance with the ordinary practice, to insert in the instrument of lease all the details of the transaction as finally agreed upon, and not to leave some of such details in pais. 158 Lewis V. Seabury, 74 N. Y. 409, 30 Am. Rep. 311. § 61 ORAL CONTRACTS ACCOMPANYING WRITTEN LEASE. 369 It is generally recognized that, even though the parties to a transaction have incorporated their agreement in a writing, it may be shown that the writing is not to be effective until the happening of a certain contingency.^ ^^ This principle has been occasionally applied in connection with an instrument of lease. Thus, it has been held allowable to show that no obligation was to arise under such a lease as against the lessee until repairs or improvements had been completed by the lessor,i58 or unless pos- session was given by a certain date,i^® or unless the lessor ob- tained a liquor license for the lessee,^*" or even unless the prem- ises were suitable for the lessee's purposes.^^"^ So it may be shown that the lease was not to be effective to vest an estate in the lessee until he fulfilled a certain condition, such as furn- ishing security for the payment of the rent.^®^ That there is no conflict between the principle involved in these cases and the "parol evidence rule" is sufficiently obvious, but it may be a matter of difficulty, in the particular case, to apply the distinc- tioUjioD fQj. instance, to determine whether, in the particular case, there is an operative instrument of lease, such as to exclude evidence of an agreement to make certain repairs, or merely a writing which is to become an operative instrument upon com- pletion of repairs. The majority of the agreements which may be entered into by a lessor or lessee are such as, in their nature, it seems, could not be regarded as creating a condition precedent to the operative effect of the writing, they not 'calling for the performance of things of a preliminary nature. In Pennsylvania the rule excluding evidence of an oral agree- ment to vary or contradict a writing has, in many cases, been rendered practically nugatory by the introduction of the doctrine that an attempt to make use of the writing in disregard of the 157 See 4 Wigmore, Evidence, § i6o Cavanagh v. Iowa Beer Co. 2410. ' (Iowa) 113 N. W. 856. 158 Davis V. Jones, 17 G B. 625 ; leoa Hinsdale v. McCune, 135 lo-wa, Hinsdale v. McCune, 135 Iowa, 682, 682, 113 N. W. 478. 113 N. W. 478; Donaldson v. Uhl- i«i See Pattle v. Hornibrook [1897] f elder, 21 App. D. C. 489; Cartledge 1 Ch. 25. It does not clearly ap- V. Crespo, 5 Misc. 349, 25 N. Y. Supp. pear whether the instrument was a 515. See Greene v. Ker, 48 Misc. 609, lease or a contract for a lease. 95 N. Y. Supp. 569. 102 See 4 Wigmore, Evidence, §§ 159 Schweig V. Manhattan Leasing 2410, 2435. Co., 54 Misc. 233, 104 N. Y. Supp. 371. L. and Ten. 24. 370 COVENANTS AND OTHER CONTRACTS. | 6} oral agreement constitutes a fraud,i** and this doctrine has occa- sionally been applied in connection with instruments of lease.^** The "parol evidence rule" has no application to an agreement entered into by the parties after the execution of the written instrument, this necessarily involving a transaction distinct from that incorporated in the writing.i^^ That such is the case has been recognized with reference to subsequent agreements be- tween the parties to a lease, provided such agreement is sup- ported by a valid consideration. So it may be shown that, sub- sequently to the execution of the lease, the lessor agreed to make repairs or alterations, ^^^ or that the rent should be reduced,^*'' or that the parties entered into an agreement as to the removal of fixtures or other things on the premises.i®^ Apart from the "parol evidence rule," the question might be raised in connection with an oral agreement calling for per- formance at any time during a term of more than a year, whether such agreement is not within the provision of the statute of frauds requiring a contract not to be performed vdthin a year to be evidenced by writing. There appears to be but a single judicial reference to such a question, and it was then decided that such a covenant was within that provision.is* "3 See article by Stanley Folz Whart. (Pa.) 303; Taylor v. Fin- Esq., in 43 Am. Law Reg. (52 O. nigan, 189 Mass. 568, 76 N. E. 203, S.) 601; 4 Wigmore, Evidence, § 2431 2 L. R. A. (N. S.) 973; Woodworth (c)- *" V. Thompson, 44 Neb. 311, 62 N. W. 16* See Hultz v. Wright, 16 Serg. 450. & R. (Pa.) 345, 16 Am. Rep. 575; mt Hastings v. Lovejoy, 140 Mass. Caulk V. Everly, 6 Whart. (Pa.) 303; 261, 2 N. E. 776, 54 Am. Rep. 462; Christ V. Diffenbach, 1 Serg. & R. Boos v. Dulin, 103 Iowa, 331, 72 N. (Pa.) 464, 7 Am. Dec. 624; T. W. W. 533. See post, § 173 f (1). Phillips Gas & Oil Co. v. Pittsburg iss Stephens v. Ely, 162 N. Y. 79, Plate Glass Co., 213 Pa. 183, 62 Atl. 56 N. E. 499; Hindman v. Edgar, 24 830. Or. 581, 17 Pac. 862; Podlech v. 166 See 4 Wigmore, Evidence, § Phelan, 13 Utah, 333, 44 Pac 838. 2441; 1 Greenleaf, Evidence, § 303. isa See Cooney v. Murray, 45 III. 166 Post V. "Vetter, 2 E. D. Smith App. 463. (N. Y.) 248; Caulk v. Everly, 6 CHAPTER VI. EXECUTORY CONTRACT FOR LEASE. 62. Contract for lease distinguished from lease. 63. Ascertainment of character of transaction. 64. Completeness of agreement. 65. Taking of possession by proposed lessee. 66. Written memorandum of agreement. a. Necessity. b. Contents. c. Execution. d. Part performance. e. Recovery for repairs or improvements. 67. Remedies for breach. a. Recovery of damages. b. Specific performance. 68. "Usual" covenants. 62. Contract for lease distinguished from lease. A contract for the making of a lease in the future is to be carefully distinguished from a lease. The distinction is similar to that which exists between a contract to make a conveyance in fee and the conveyance itself.^ The rights of both the owner of the land and of the proposed lessee under such a contract lit is somewhat surprising that siderable exttent, to the unfortunate the decisions of respectable courts use of the term "contract of lease" quite frequently fail to discriminate as descriptive of the whole trans- between a lease and a contract for action by which an estate is vested the making of a lease. • The distinc- in the lessee and the parties at tion involves, it is evident, the the same time enter into certain fundamental distinction between the contractual stipulations in connec- creation of rights in personam and tion therewith, this resulting in a the creation of rights in rem. The tendency to confuse such "contract failure to discriminate in this re- of lease" and a contract "for a gard is presumably due, to a con- lease." 372 EXECUTORY CONTRACT FOR LEASE. § 62 are entirely different from such as they may have after the lease itself has been made. For instance, a contract for a lease gives the proposed lessee no right of possession which he can assert against the lessor or against third persons,^ while on the other hand he is not liable thereunder for rent or for use and occu- pation for the whole term, and is not liable to any extent unless he obtains possession.^ Nor is he liable to distress for rent."* In the case of a mere contract, the parties have a right to insist upon the insertion, in the instrument of lease itself, of the "usual" covenants, while if the lease itself has been executed without some or all of these, the covenants omitted cannot be afterwards inserted, in the absence of fraud or mistake.^ Furth- ermore, the statutory requirements as to execution may be differ- ent in the case of a lease from those which control in the case of a contract for a lease, or a different character of revenue stamp may be required according as an instrument has one or the other character.'' If the instrument is a lease, the lessee obviously cannot bring an action for failure to execute a lease,^ while he may do so if it is a mere contract for a lease.^ 2 Harrison v. Parmer, 76 Ala. 157 ; session at a less rent. Weed Y. ' Gibson v. Needham, 96 Ga. 172, 22 Lindsay, 88 Ga. 686, 15 S. E. 836, 20 S. E. 702; Martin v. Davis, 96 Iowa, L. R. A. 33. 718, 65 N. W. lOOl (semble) ; Hinck- s Pinero v. Judson, 6 Bing. 205; ley V. Guyon, 172 Mass. 412, 52 N. E. Johnson v. Phoenix Mut. Life Ins. 523; Shaw v. Farnsworth, 108 Mass. Co., 46 Conn. 92; Kabley v. Worces- 358; St. Louis Brew. Ass'n v. Nied- ter Gaslight Co., 102 Mass. 392; Arn- erluecke, 102 Mo. App. 303, 76 S. W. old v. R. Rothschild's Sons Co., 37 645; Jackson v. Delacroix, 2 Wend. App. Div. 564, 56 N. Y. Supp. 161; (N. Y.) 433; Salomon v. Weisberg, Henderson v. Schuylkill Valley Clay 29 Misc.. 650, 61 N.Y. Supp. 60; Becker Mfg. Co., 24 Pa. Super. Ct. 422. 'v. DeForest, 31 N. Y. Super. Ct. (1 * Hegan v. Johnson, 2 Taunt. 148; Sweeny) 528; Doe d. Wood V. Clarke, Hancock v. Caffyn, 8 Bing. 358; 7 Q. B. 211; Phillips v. Hartley, 3 Dunk v. Hunter, 5 Barn. & Aid. 322. Car. & P. 121; Doe d. Pearson v. 5 See Sugden, Letters to a Man of Ries, 8 Bing, 178. See Crow v. Hil- Property, 96. dreth, 39 Cal. 618. The proposed e Bicknell v. Hood, 5 Mees. & W. lessee may, however, obtain the right 104 ; Gore v. Lloyd, 12 Mees^ & W. of Immediate possession by express 463; Cla,yton v. Burtenshaw, 5 Barn, grant of such right. See "post, § 65. & C. 41; Doe d. Phillip v. Benjamin, The proposed lessee, after having 9 Adol. & E. 644. refused to accept a lea^e at the stip- ^ Crow v. Hildreth, 39 Cal. 618; ulated rent because of the failure of ' Hurley v; Woodsides, 21 Ky. Law the owner to make improvements as Rep. ■1073,- 54 S. W. 8. agreed, cannot assert a right of pes- s See post, § 67 a. § 62 DISTINGUISHED FROM LEASE. 373 There is in force at the present day in England a statute » providing that a -lease required by law to be in writing shall be void at law unless made by deed, that is, unless under seal, and, as a consequence thereof, no question can there arise as to the nature of the instrument, imless this is under seal, or unless the subject thereof is not a term of such length of duration as is required by the statute of frauds to be in writing.^" An in- strument, however, which is, under the statute, void as a lease because not under seal, wUl, though apparently intended as a lease, be allowed to take effect as a contract for a lease.^^ Furth- ermore, it has apparently been established in England that, since the fusion of law and equity, one who has what is in terms merely a contract for a lease, or has an unsealed lease, which, as just stated, may be construed as a contract for a lease, is, provided specific performance thereof would be decreed,^^ to be regarded as a lessee, at least for some purposes.^* In the leading case on. this subject^* it is said: "A tenant holding under an agree- ment for a lease of which specific performance would be decreed stands in the same position as to liability as if the lease had been executed. He is not, since the Judicature Act, a tenant from year to year,i5 he holds under the agreement, and every branch of the court must now give him the same rights. * * * There is an agreement for a lease under which possession has been given. Now since the Judicature Act the possession is held under the agreement. There are not two_ estates as there were formerly, one estate at common law by reason of the payment of the rent from year to year, and an estate in equity under the agreement. There is only one court, and the equity rules pre- vail in it. " It has been held, however, that this doctrine applies only as between the parties to the contract, and that the case "is to be treated as though before the Judicature Acts there had been, first, a suit in equity for specific performance, and then 98 & 9 Vict. c. 106 (1845). Div. 9; Lowther v. Heaver, 41 Ch. 10 See ante, § 25 d. Div. 248; Swain v. Ayres, 21 Q. B. "Bond V. Rosling, 1 Best). & S. Div. 289; Allhusen v. Brooking, 23 371; Rollason v. Leon, 7 Hurl. & N. Ch. Div. 559. 73; Tidey v. Mollett, 16 C. B. (N. S.) "Walsh v. Lonsdale, 21 Ch. Div. 298. 9, per Jessel, M. R. 12 See post, § 67 K . . " See post, § 65. IS See Walsh v. Lonsdale, 21 Ch. 374 EXECUTORY CONTRACT FOR LEASE. § 63 an action at law between the same parties: and the doctrine is applicable only in those cases where specific performance can be obtained between the same parties, in the same court, and at the same time as the subsequent legal question falls to be determined. "16 As thus explained the reason of the doctrine is clear. One having a right to compel specific performance by another of a contract by such other to make a lease to him was, before the merger of law and equity, regarded, as against such other, as actually having a lease, and, since such merger, he is to be so regarded in all the courts. In at least one case in this country this doctrine has been referred to with approval,^' and it might, it seems, be generally applicable in those states in which there is no longer any separate equity jurisdiction.^s The question whether any stipulations entered into at the time 01 and in connection with the making of an executory agreement for a lease are "merged" in the written instrument of lease, as finally prepared and executed, is, it is conceived, dependent upon whether the instrument of lease can be regarded as intended to cover that particular matter, that is, whether the particular stip- ulation can be regarded as "collateral" to the lease, within the exception to the so-called "parol evidence" rule.^^ § 63. Ascertainment of character of transaction. "Whether a particular transaction constitutes a lease or a mere contract for lease is a question in each case of the intention of the parties. ^'i Ordinarily the question arises with reference to a i» Manchester Brewery Co. v. as a lease. And see Bonaparte v. Coombs [1901] 2 Ch. 608, per Far- Thayer, 95 Md. 548, 52 Atl. 496. well, J. 19 See ante, § 61. 17 Weed v. Lindsay, 88 Ga. 686, 15 In Stearns v. Lichtenstein, 48 App. S. E. 836, 20 L. R. A. 33. Div. 498, 62 N. Y. Supp. 949, it was 18 Such a theory Is perhaps applied held that, the owner having agreed in Bradley v. Metropolitan Music to put out certain tenants of loft A Co., 89 Minn. 516, 95 N. W. 458, and in consideration of plaintiff's agree- Jourgensen v. Traitel, 47 N. Y. St. ment to take loft B., he was liable Rep. 413, 20 N. Y. Supp. 33, the deci- for breach of his agreement, even sions in these cases being apparent- after he had made a lease to plaintiff ly to the effect that what was in- of loft B. tended as a contract for a lease, 20 Doe d. Jackon v. Ashburner, 5 under the circumstances, took «ffect Term R. 163; Poole v. Bentley, 12 § 63 WHEN CREATED. 375 written instrument, and calls for a construction of the instru- ment as a whole, but it may arise when the transaction is not embodied in a writing, and then it is a question on the evidence. Certain rules are deducible from the decisions which may aid in the solution of this question as it arises. Language by which the owner of land "agrees to let" has been construed, under the circumstances, as constituting words of present demise creating a lease and not as involving a mere con- tract to make a lease.^i On the other hand, language which is ordinarily construed as effecting a present demise, as for in- stance "doth lease," has, in at least one case, been regarded as involving, in view of the context and surroiinding circumstances, merely a contract for a future demise. ^^ The fact that there is in the instrument a provision for the execution of a lease in the future, or a reference to such a lease, does not necessarily show that a mere agreement for a future lease is intended, since such language may be inserted merely to secure the execution of a more formal instrument. ^^ Ordinarily, however, it seems, the presence of such a provision tends to show East, 168; Doe d. Pearson v. Ries, 8 56 Pa. 172; Western Boot & Shoe Co. Bing. 178; Johnson v. Phoenix Mut. v. Gannon, 50 Mo. App. 642; HoUey Life Ins. Co., 46 Conn. 92; Bacon v. v. Young, 66 Me. 520. Bowdoin, 39 Mass. (22 Pick.) 401; 22 Jackson v. Delacroix, 2 Wend. Potter V. Mercer, 53 Cal. 667; Holley (N. Y.) 433.' See Bac. Ahr., leases V. Young, 66 Me. 520; Western Boot & (K) . Shoe Co. v. Gannon, 50 Mo. App. 642; 23 Maiden's Case, Cro. Eliz. 33; Hallett V. Wylle, 3 Johns. (N. Y.) 44, Baxter v. Browne, 2 W. Bl. 973; Poole 3 Am. Dec. 457; Jackson v. Dela- y. Bentley, 12 Bast, 168; Pinero v. croix, 2 Wend. (N. Y.) 433; Griffin v. judson, 6 Bing. 206; Doe d. Walker Kinsely, 75 111. 411; Weed v. Lind- y. Groves, 15 East, 244; Chapman v. say, 88 Ga. 686, 15 S. E. 836, 20' L. Bluck, 4 Bing. N. C. 187; Jones v. R. A. 33; Ver Steeg v. Becker-Moore Reynolds, 1 Q. B. 506; Bradley v. Paint Co., 106 Mo. App. 257, 80 S. Metropolitan Music Co., 89 Minn. W. 346. . 516, 95 N. W. 458; Jackson v. Kissel- 2iStaniforth v. Fox, 7 Bing. 590; brack, 10 Johns. (N. Y.) 336, 6 Am. Poole V. Bentley, 12 East, 168; Doe Dec. 341; Coffee v. Smith, 109 La. d. Phillips v, Benjamin, 9 Adol. & B. 440, 33 So. 554 (semble) ; In re Wood- 644; Doe d. Pearson v. Ries, 8 Bing. ville, 115 La. 810, 40 So. 174 (sem- 178; Kabley v. Worcester Gaslight ble); Grigsby v. Western Union Tel. Co., 102 Mass. 392; Averill v. Taylor, Co., 5 S. D. 561, 59 N. W. 734; Feust 8 N. Y. (4 Seld.) 44; Steel v. Frick, v. Craig, 107 N. Y. Supp. 637. 376 EXECUTORY CONTRACT FOR LEASE. § 63 that the intention is merely to make a contract for a future lease. ^* An express stipulation that the instrument shall not operate as a lease will override words prima facie indicative of a present I demise,25 as will a clause in effect requiring something further to be done or some contingency to be satisfied before there shall be an operative demise.^® But the instrument may be a lease though it does not give a right of immediate possession, since, as is well recognized, a lease for years may create an estate to com- mence in futuro.^ If the writing is in other respects ambiguous as to whether it is intended to operate as a lease or as an agreement for a lease, it will, it seems, usually receive the latter construction when it shows on its face that, at the time of its execution, the alleged lessor had no title sufficient to support the lease,28 or when the person in whose name the lease should be made is uncertain,^^ or when the terms of the tenancy are left unsettled in some material point,^" as, for instance, the time of commencement ^^ or 2* See Goodtltle v. Way, 1 Term R. 27 gee Bacon v. Bowdoin, 39 Mass. 735; Doe d. Bromfield v. Smith, 6 (22 Pick.) 401; . Weed v. Crocker, East, 530; Tempest v. Rawling, 13 79 Mass. (13 Gray) 219; Shaw v. East, 18; Bicknell v. Hood, 5 Mees. Farnsworth, 108 Mass. 358; Western & W. 104; RoUason v. Leon, 7 Hurl. Boot & Shoe Co. v. Gannon, 50 Mo. 6 N. 73; Griffin v. Knisely, 75 111. App. 642; Kolley v. Young, 66 Me. 411; Harrison v. Parmer, 76 Ala. 520; Whitney v. Allaire, 1 N. Y. (1 157; St. Louis Brew. Ass'n v. Nieder- Comst) 305, 311; Colclough v. Carpe- luecke, 102 Mo. App. 303, 76 S. W. les, 89 Wis. 239, 61 N. W. 836. 645. 28 Hay ward v. Haswell, 6 Adol. & 2BPerring v. Brook, 7 Car. & P. E. 265; Clarke v. Moore, 1 Jones & SGO; Brook v. Biggs, 2 Bing. N. C. L. 723. 572. 29 Doe d. Bailey v. Foster, 3 C. B. 26 Doe d. Jackson v. Ashhumer, 5 215. Term R. 163; Johns v. Jenkins, 1 3» Chapman v. Towner, 6 Mees. & Cromp. & M. 227; Jones v. Reynolds, W. 100; Arnold v. R. Rothschild's 1 Q. B. 506; r>oe d. Wood v. Clarke, Sons Co.. 37 App. Div. 564, 56 N. Y. 7 Q. B. 211; Gove v. Lloyd, 12 Mees. Supp. 161. & W. 463; Buell v. Cook, 4 Conn. 31 Dunk v. Hunter, 5 Barn. & Aid. 238; Weed v. Lindsay, 88 Ga. 686, 322; Doe d. Wood v. Clarke, 7 Q. B. 15 S. B. 836, 20 L. R. A. 33; Dono- 211; Weed v. Lindsay, 88 Ga. 680, van V. P. Schoenhofen Brew. Co., 92 15 S. E. 836, 20 L. R. A. 33. But in Mo. App. 341; Jackson v. Delacroix, Staniforth v. Fox, 7 Bing. 590, it 2 Wend. (N. Y.) 433; Proctor v. Ben- was held that a clause "doth this day son, 149 Pa. 254, 24 Atl. 279. agree to let," without any other § 63 WHEN CREATED. 377 duration ^^ of the tenancy, or the amount of the rent.** The fact that, by the terms of the instrument in question, per- mission is given to the proposed lessee to take immediate pos- session, has not been regarded as showing that the transaction is a lease rather than a contract for a lease.** It is conceived, however, that such a provision for immediate possession is in itself a lease, though it does not give the character of a lease to the contract for the making of a lease in the future. In other words, in such ease, the writing embodies two separate legal acts, an agreement to make a lease in the future, and also a lease, at will or otherwise, taking immediate effect, and intended to operate, ordinarily, until the making of the principal lease.*" The fact that, though there is no express stipulation in the writing as to the taking of immediate possession, the proposed lessee is admitted into possession immediately upon the exepu- tion of the instrument, has been regarded in several eases as tending to show that a lease is intended,*^'' though the English cases do not generally, it seems, give it such effect.*® In such designation of the commencement of structing the huilding. But one the term, tended to show a lease to who enters on another's land merely begin on that date. to erect a building for the owner is 32 Clayton v. Burtenshaw, 5 Barn, not ordinarily in legal possession. & C. 41; Pentland v. Stokes, 2 Ball He is rather a licensee. & B. 68; Hinckley t. Guyon, 172 ssa Jenkins v. Bldredge, 3 Story, Mass. 412, 52 N. E. 523. 325, Fed. Cas. No. 7,268; People v. 33 John V. Jenkins, 1 Comp. & M. St. Nicholas Bank, 3 App. Div. 544, 227; Gibson v. Needham, 96 Ga. 172, 38 N. Y. Supp. 379; Jackson v. Kis- 22 S. E. 702. selbrack, 10 Johns. (N. Y.) 336, 6 34Goodtitle v. Way, 1 Term R. Am. Dec. 34; Hallett v. Wylie, 3 735; Stone v. Rogers, 2 Mees. & W. Johns. (N. Y.) 44, 3 Am. Dec. 457; 443; Brashier v. Jackson, 6 Mees. & Eagle Tube Co. v. Holsten, 110 N. W. 549. But see Hancock v. Caffjm, Y. Supp. 242; Potter v. Mercer, 53 8 Bing. 358. Cal. 667. See McGrath v. City of 35 See post, § 65. Boston, 103 Mass. 369. In Billings v. Canney, 57 Mich. se in i piatt. Leases, 610, it is said 425, 24 N. W. 159, where the owner that "from a review of the decisions of land agreed with one about to it is apparent that the fact of im- erect a building thereon for him to mediate possession has not affected pay for the cost of the building by the construction." Mr. Piatt) men- giving a lease to the latter, it was tions, however. Doe d. Pearson v. held that! this constituted a lease be- Ries, 8 Bing. 178, in which the op- cause the builder immediately took posite view is asserted, and also a "possession" for the purpose of con- dictum of Ashhurst, J., in Doe d. 378 EXECUTORY CONTRACT FOR LEASE. § 64 a case, it appears, as in the case when permission to take immed- iate possession is inserted in the instrument in which the agree- ment to lease is embodied, there is a lease as wpU as an agreement for a lease.3'^ The fact that the instrument, if construed as a lease, would be void, as undertaking to create a freehold to commence in futuro,^^ or as being a defective execution of a powerj^'-* has been regarded as ground for construing it as an executory agreement merely. There are likewise several English eases to the effect that if, by operating as a lease, it would create a forfeiture, as being a lease by a copyhold tenant for a greater period than that allowed by the custom of the manor, the instrument would be construed as an agreement.*" And, by analogy to this view, it seems that the courts might tend to refrain from construing an instrument at a sublease if this would subject the sublessor to a forfeiture for breach of a condition against subleasing. § 64. Completeness of agreement. There is no binding contract when some of the terms yet remain to be settled *i or when the agreement, as made, is not Jackson v. Ashburner, 5 Term R. Co., 44 N. Y. 79; Disbrow v. Wilkins, 168, contra. 11 App. Div. 628, 44 N. Y. Supp. In Harrison v. Parmer, 76 Ala. 1115; Jenkelson v. Ruff, 31 Misc. 276, 157, it is said that the taking of 64 N. Y. Supp. 40; Franke v. Hewitt, possession is not conclusive. This 56 App. Div. 497, 68 N. Y. Supp. 968; is undoubtedly so. To this effect, Schaltz v. Northwestern Mut. Life see, also, Tillman v. Fuller, 13 Mich. Ins. Co., 40 C. C. A. 556, 100 Fed. 113. 573. But in Weaver v. Wood, 9 Pa. 37 See ante, at note 35. 220, it was decided that an agree- 38 Jones V. Duggan, 1 Jebb & B. 3, ment to lease "at a fair rent" was 4 Ir. Law Rep. 86. sufficiently certain. 3!> Clarke v. Moore, 1 Jones & L. The mere fact that no time for 723. payment of rent is named is, Im- Brocklington v. Saunders, 13 66 In Lyon v. Cunningham, 136 Wkly. Rep. 46. Mass. 532, it was decided that one ei Thomas v. Packer, 1 Hurl. & N. who was given possession in antlci- 669; Doe d. Thomson v. Amery, 12 pation of a written lease to him Adol. & E. 479. could, upon a refusal to make a lease, 62 Doe d. Tilt v. Stratton, 4 Bing. relinquish possession and so termln- 446; Doe d. Davenish v. Moffatt, 15 I 66 WRITTEN MEMORANDUM. 383 years' notice to quit is not applicable to a tenancy from year to year so arising."* A covenant to build, or to do such material repairs as are not usually done by tenants from year to year, is apparently not applicable.^* A proposed lessee, thus allowed to take possession in anticipa- tion of the execution of a written lease to .him, is ordinarily liable for use and oecupation.^B § 66. Written memorandum of agreement. a. Necessity. An agreement for the future making of a lease of land is within the fourth section of the English statute •of frauds, providing that "no action shall be brought whereby to charge any person" upon "any contract or sale of lands, tene- ments or hereditaments, or any interest in or concerning them, unless the agreement or some memorandum or note thereof shall be in writing and signed by the party to be charged there- Tvith or some other person by him lawfully authorized.""" In most states in this country there is a statutory provision of a similar character, and a contract for a lease would ordinarily be regarded as in effect a contract for the sale of an interest in land, and so within such a provision."'^ The fourth section of the English statute does not contain any exception of short time lea- ses, and, consequently, under that statute, while a lease for three years or less, on which a rent equal to two-thirds the value ■Q. B. 257; Tress v. Savage, 4 El. & Mete.) 319; Grain v. Thompson, 87 BI. 36. Minn. 172, 91 N. W. 483; Smith v. ssTooker v. Smith, 1 Hurl. & N. Phillips, 69 N. H. 470, 43 Atl. 183; 732. Charlton v. Columbia Real Estate 64 Bowes V. Caroll, 6 El. & Bl. 255. Co., 67 N. J. Eq. 629, 60 Atl. 192, 69 per Erie, J. L. R. A. 394; Hawley v. Moody, 24 65 See post, § 304 a. Vt. 603; Richards v. Redelshelmer, 86 Sanderson v. Graves, L. R. 10 36 Wash. 325, 78 Pac. 934. Exch. 234; Lever v. Koffler [1901] 1 In Wiessner v. Ayer, 176 Mass. Ch. 543; Moore v. Kay, 5 Ont. App. 425, 57 N. E. 672, it was held that if 261; 1 Piatt, Leases, 568; 1 Dart, a written offer to take a lease was Tenders & Purchasers (6th Ed.) amended by telephone, before it was 228; Sugden, Vendors & Purchasers accepted, as to the time for pay- (14th Bd.) 123. ment of rent, there was no enforcible e^Eaton V. Whitaker, 18 Conn, contract. The offer as written was 222, 44 Am. Dec. 586; Diamond v. never accepted, and the amended Macfarlane, 11 Hawaii, 181; Town- offer was not evidenced by writing, •send V. Townsend, 47 Mass. (6 384 EXECUTORY CONTRACT FOR LEASE. § 66 of the land is reserved, is valid, though not in writing,®* a con- tract for the making of such a short time lease is, it seems, unen- forcible if not evidenced by writing.®^ The statutory provision, found in a number of states in this country, that a "contract for leasing" shall be in writing, would seem, as before remarked,'"' to be particularly applicable to a con- tract to make a lease. ''i-'^^ Occasionally it has been assumed that a contract to make a lease for a term of more than one year is within the provision of the statute of frauds requiring any contract not to be per- formed within a year to be evidenced by writing.'^^ But since the performance of such an agreement consists in the making of the lease, the fact that the lease when made will extend until the expiration of a period greater than a year from the date of the agreement should not, it seems clear, bring the agreement within such provision.'^* b. Contents. The memorandum must, to comply with the requirements of the statute, state all the material terms of the contract. For instance, the identity of the lessor or his'agent,'^ and of the lessee or his agent,'''^ must appear, though they need not be actually named, it seems, a reference to the lessor, for instance, as the "proprietor" or person in possession being suffi- cient.''"'' 68 See ante, § 25 d. In St. Joseph Hydraulic Co. v. 09 Sugden, Vendors & Purchasers Globe Tissue Paper Co., 156 Ind. 665, (14th Ed.) 123; Smith, Landl. & 59 N. E. 995, it was held that this Ten. (3d Ed.) 100. clause of the statute did not apply 70 See ante, § 25 b. to such a contract because It is one 71, 72 In Tillman v. Fuller, 13 Mich, "conveying an interest in land." 113, it is clearly stated by Christ- It might rather be said, it is sub- iancy, J., that such a clause refers mitted, that such a contract is one to an executory agreement for a "for the conveyance of" an interest lease. And see Hand v. Osgood, 107 in land. The con-tract itself does Mich. 55, 64 N. W. 867, 61 Am. St. not convey any interest, in the view Rep. 312, to the same effect. • at least of a court of law. 73 Donovan v. Schoenhofen Brew. 75 Warner v. Willington, 3 Drew. Co., 92 Mo. App. 341; Craln v. 523; Williams v. Jordan, 6 Ch. Dlv. Thompson, 87 Minn. 172, 91 N. W. 517. 483. "iStokell v. Niven, 61 Law T. (N. '* Shakespeare v. Alba, 76 Ala. S.) 18; Carroll v. Williams, 1 Ont. 351; Tillman v. Fuller, 13 Mich. 113; 150. Eaton V. Whitaker, 18 Conn. 222, 77 Carr v. Lynch [19'00] 1 Ch. 613; 44 Am. Dec. 586. Rossiter v. Miller, 3 App. Cas. 1124; § 66 WRITTEN MEMOEIANDUM. 3g5 The time for the commeneement of the term mest appear/* and, in the absence of such statement, the term will mot he deemed to commence at the date of the agreementJ^ But the date of commenoement may be ascertained by a construetion of the agreement as a whole whem there is no specific designation thereof.®" The written memorandum must also state the period of the duration of the term.*^ And it must, it would seem, also state the amount of rent to be paid or fix somB mode for its ascer- tainment, as by providing for its settlement by arbitration,^^ Any special covenants which are to be inserted in the lease must be elearly and accurately stated,®^ though what are re- garded as "usual covenants" need not be mentioned, they being a part of the agreement as of course.** It must also describe or name the premises to be leased,®^ though it is sufficient if the property referred to can be identified by the aid of parol evi- dence.*® It is no objection to the memorandum that some of its terms are, as stated therein, to be ascertained by reference to something to be done in the future, as, for instance, by reference to the terms of another lease subsequently to be made, provided they Catling v. Kiag, 5 Ci. Div. 660; sa Gregory v. Mighell, 18 Ves. Jr. Cummins v. Scott, L. R. 20 Eq. 11; 328. 29 Am. & Eng. Enc. Law <2d Ed.) &3 Doe d. Bute v. Guest, 15 Mees. ggg & W- 160; Propert v- Paxker, S TsBIore v. Sutton, 3 Mer. 237; ^ylne & K. 280; Wiessmer v. Ayer. Bayley v. Fitzmaurice, 8 El. & Bl. ^^^ ^^^- ^25. 57 N. E. 672. 664; Clarke v. Puller, 16 C. B. (N. ^//^^^f^ ^- ^^^J"- ^V^-Jl' „„ 258; Seholtz v. NortJiweBtern Mut. S.) 24; Humphery y. Conybeare, 80 ^^^ ^^^ ^^^ ^^ ^ ^ ^ g^g^ ^^^ Law T. (N. S.3 40; Carroll v. Wll- ^^ g^g. ^^^f^-^ La^dl. & Ten. Uams, 1 Ont. 150. (16tli Ed.) 97, As to usmaa cove- 's Marshall V. Berridge, 19 Ch. nant, see infra, § 68. Div. 2Z3. 65 Daniels v. Davison, 16 "Ves: Jr. 80 Marshall V. Berridge, 19 Cii. Div. 249; Lancaster v. De Trafflord, 31 233; In re Lander & Bagley'e Con- law J. Ch. 554; Price v. Griffith, 1 tra«t fl892] 3 Ch. 41; Erskine v. De Gex, M. & G. 80. Armstrong, 20 L. R. Ir. 296. 88 Owen v. Thomas, 3 Mylne & K. aiClinan v. Cooke, 1 Schoales i& 353; McMurray v. Spioer, L. R. 5 L. 22; Clarke v. Fuller, 16 C. B. (N. Eq. 527; Magee v. Lavell, L. R. 9 C. S.) 24; Fitzmaurice v. Bayley, 9 H. P. 107. See 4 Wigmore, Evidence, L. Cas. 78. § 2465. L. and Ten. 25. 386 EXECUTORY CONTRACT FOR LEASE. | gg are so ascertained before the bringing of an action upon the agreement.*^ c. Execution. In regard to the execution of the memo- randum the same requirements exist as in the case of any other agreement within the fourth section of the staute of frauds. It must be signed "by the party to be charged or some other person by him lawfully authorized," but there is a signature within the requirement, if his name is placed by him or by his direction in any part of the instrument,** provided it is so placed with the intention of thereby executing the same as a binding obligation,*^ and, provided further, it is intended to authenticate the whole and not merely a part.^° If the local statute requires the agreement to be "subscribed," a signature elsewhere than at the foot of the writing is insufficient-^^ d. Part performance. Although a contract for a lease is not evidenced by writing, as required by the fourth section of the statute of frauds, courts of equity will frequently decree spe- cific performance,®^ in case the contract has been partially per- formed by the person seeking specific performance.^^ The doe- trine of part performance is ordinarily based on the theory that if one party to a contract allows the other to act upon it, he should not be allowed to assert the lack of the evidence of the 87 Freeland v. Ritz, 154 Mass. 257, The defendant's grantor had agreed 28 N. B. 226, 12 L. R. A. 561, 26 Am. to make the lease to the complaln- St. Rep. 244. ant, and defendant, by his contract 8s Propert v. Parker, 1 Russ & M. of purchase of the land, assumed the 625; Bleakley v. Smith, 11 Sim. 150; agreement for the lease and gave Tourret r. Cripps, 48 Law J. Ch. bond to perform his contract of pur- 567. chase, and thereafter the vendor 86 See cases cited 29 Am. & Bng. gave the proposed lessee a memo- Enc. Law (2d Ed.) 856 note 7;' randum of the agreement for a lease, Browne, Stat, of Frauds, § 357. on which he might have been held »» Caton V. Caton, L. R. 2 H. L. liable, and it was decided that the 127; Stokes v. Moore, 1 Cox, 219. defendant was estopped from setting 91 29 Am. & Eng. Bnc. Law (2d up the statute of frauds in a suit Ed.) 857; 20 Cyclopedia Law & Proc. for specific performance, as this 274. would involve a fraud on the pro- 92 See post, § 67 b. posed lessee and on the vendor, and 93 In Hodges v. Howard, 5 R. I. to prevent this fraud, and to avoid 149, the court decreed specific per- the circuity of action involved in formance of an oral agreement to bringing suit on the bond, specific make a lease on a principle some- performance would be decreed, what analagous to part performance. § 66 WRITTEN MEMORANDUM. 387 contract required by the statute, such conduct on his part in effect constituting a fraud upon the . other.*"* In accordance with this theory it seems that acts by one party which are done without the knowledge of the other cannot properly be regarded as sufficient part performance to render the contract enforcible as against the latter.^^ And even though there is in the particu- lar case sufficient part performance to authorize the interposition of equity, the terms of the contract must be clearly and. fully proven before the court can act.^^ As to the character of the acts of part performance necessary thus to relieve a party in equity from the operation of the stat- ute, the best considered authorities are to the effect that they must be such as to show that some contract exists between the parties, and that they are consistent with that alleged.®^ There are a number of cases to the effect that the delivery of posses- sion to the intending lessee is sufficient to take the case out of the statute and to render parol evidence of the contract admissible,®* and this coincides with the rule which is perhaps ordinarily adopted in the case of contracts of sale,®® the theory being that "the acknowledged possession of a stranger in the land of an- other is not explicable except on the supposition of an agree- tnent."i»o The act of the proposed lessee in expending money on the premises in improvements on the faith of the agreement and with the knowledge and consent of the other party^"! are sufficient 94 Fry, Spec. Perf. § 585; Pomeroy, burgh, 35 N. J. Bq. (8 Stew.) 266. Eq. Jur. § 1409. But that the proposed lessee vol- s' Fry, Spec. Perf. § 589; Pomeroy, untarily goes into possession with- Spec. Perf. § 106; Blore v. Sutton, 3 ou* any request or permission by the Mer. 237; Shannon v. Bradstreet, 1 proposed lessor does not make the Schoales & L. F. 52. contract valid as against the latter. 96 Fry, Spec. Perf. § 631 et seq. ; 26 Pulse v. Hamer, 8 Or. 251. Am. & Eng. Enc. Law (2 Ed.) 59. »9 Fry, Spec. Perf. § 601 et seq.; 97 Fry, Spec. Perf. § 582; Pomeroy, Pomeroy, Spec. Perf. § 115 et seq.; Spec. Perf. § 107. 26 Am. & Eng. Enc. Law (2d Ed.) 98 Morphett v. Jones, 1 Swanst. 56. 172; Pain v. Coombs, 1 De Gex & J. loo Plumer, M. R., in Morphett v. 34; Bowers v. Cator, 4 Ves. Jr. 91; Jones, 1 Swanst. 181, quoted Pry, Maddison v. Alderson, 8 App. Cas. Spec. Perf. § 602. 467; Clark v. Clark, 49 Cal. 586; loi Fry, Spec. Perf. § 610; Pome- Eaton V. WWtaker, 18 Conn. 222, 44 roy. Spec. Perf. § 126; Farrall v. Am. Dec. 586; Wharton v. Stouten- Davenport, 3 Giff. 363; Sutherland 388 EXECU'TOEY CONTEACT F!OK LEASE. | 65 acts of part performance, and this is se even tihoiagh the posses- sion was at first acquired without the owner's consent, if subse- quently aequiiesced in by hiim.i''^ fji^e payment of part of the rent has been decided not to be sufficient,^"^ and this accords with the view usually adopted that pairt payment of ike price will not take an oral contract of sale out of the statute.^"* The fact that one already in possession under a previouis lease remains in possession after the term, and after having entered into an oral agreement for a new lease, is not, ordinarily, sufficient part performance, the continuance of possession not being referable to such agreement.^ "^ A different view has been ta-feen, however, when it seemed to the court that the continuance in possession was unequivocally referable to the agreement.^ "^ The fact that one already in possession as tenant, or one elaim- V. Briggs, 1 Hare, 26; Savage v. irasBession and made improvements, Foster, 9 Mod. 35; Williams v. the intending lessor repudiated the Evans, L. R. 19 Eq. 547; People's agreement to make a lease, the les- Pure Ice Co. v. Trumbull, 17 C. C. see could not claim that he made the A. 43, 70 Fed. 166; Morrison v. Her- improvements on the strength of the rick, 130 111. 631, 22 N. E. '537 ; Mc- contract, an^ there was consequently Carger v. Rood, 47 Cal. 138; West no part perfoirmance. V. Washington & C. R. Co., 49 Or. i<>2 Gregory v. Mighell, 18 Ves. Jr. 436, 90 Pac. 666; Deisher v. Stein, 34 328; Shillabear v. Jarvis, 8 De Gex, Kan. 39, 7 Pac. 60S; Harrell v. Son- M. & G. Y9. nabend, 191 Mass. 310, 77 N. E. 764. loa Thursby v. Eccles, 70 Law J. In Wendell v. Stone, 39 Hun (N. Q. B. Div. 91. See Eaton v. Whita- Y.) 382, it was held that the acts of ker, 18 Conn. 222, 44 Am. Dec. 586; tfee proposed lessee in taking pos- Charleton v. Columbia Real Estate session and cutting his carpets to Co., 64 N. J. Eq. 631, 54 Atl. 444. fit the premisies constituted sufficiient i"* See Fry, Spec. Berf. J 613 et part performance. In St. Joseph seq.; Pomeroy, Spec. Perf. | 112 et Hydraulic Co. v. Globe Tissue Pa- seq.; 26 Am. & Bug. Lav? (2d Ed.) per Co., 156 Ind. 66^5, 5'9 N, E. 995, 54. it was held that one who constructed ^"^ Wills v. Stradling, 3 Ves. Jr. a mill on the strength of an oral 378; In re National Sav. Bamk agreeaaaent to make a "lease" of wa- Asis'm, IS Wkly. Rep. 753; Rosenthal ter power to him to be used for the v. Freeburger, 26 Md. 75; Browder v. purposes of the mill could obtain Phimney, 37 Wash. 70, 79 Pac. 598; specific performance of smeh agree- Dart, "Vendors & Purchasers (6tlh ment. Ed.) 1136-1137. In Czermak v. Wetzel, 114 App. ^"^ Hodson v. Heuland [lS9i6] 2 Ch. Div. 816, 100 N. Y. Supp. 167, it was 428 ; Doweai v. Dew, 1 Yoiinge & C. held by a majority of the court that Ch. 345. if, before the intended lessee took § 6& WRITTEN MEMORANDUM. 389: ing under Mm as subtenant,,!"''^ expends money on repairs or im- provements, will take the case out of the statute,,^ ''•^ provided, it seems, that the expenditures are not merely of such a character as can be referred to the tenancy at vidll or from year to yeari'^'-' arising from his holding over a former term,iio ^nd provided fur- ther that they were not made in the mere hope or expectation, not encouraged by the landlord, of a renewal?!^ A payment of an installment of an increased rent by a tenant holding over has been regarded as sufEcient part performance of an agreement for a renewal lease at such increased rent to render admissible evidence of such agreement.i^^ It has been held that there was sufficient part performance to justify a decree against one who had orally agreed to take a lease where the owner had, on the strength of such contract, broken off negotiations for a lease to another,, altered the premises to. suit the defendant^ and the latter had entered and held posses- sion for two years, paying rent.^^^ Where one orally agreed to^ give a lease to another of certain land, provided the latter would purchase such land at his own cost and have it conveyed to the former,, it was held that, having purchased the land and had it so 107 Williams v. Evans, L; R. 19 Eq. It does not seem, however, that 547. what the Intending lessee may have 108 Wills V. Stradling, 3 Ves. Jr. done can properly be considered as 378. part performance justifying a de- 109 Brennan v. Bolton, 2 Dru. & cree for specific performance againsf War. 349; Mundy v. Joeliffe, 5 Myllie bim. It is only what the applicant & C. 167; Morrison v. Herrick, 130 for specific perfioirmanee has done 111. 631 22 N. E. 537. which constitutes part performance 110 See post § 210. entitling him to a decree. See 111 Ramsden v. Dyson, L. R. 1 H. Browne, Stat, of Frauds, § 453; L. 129; Pilling. V. Armitage, 12 Ves. Pomeroy, Spec. Perf.§105; 26 Am. & Jr. 78; Brennan v. Bolton, 2 Dru. & Eng.Enc.Law ( 2d Ed. > 60. For this War 349' reason the statement in the ahove 112 Wilis V. Stradling,. a Ves. Jr. case that '-if there has been suffieienf 378; Nunii v. Fabian, 1 Ch. App. execution or performance of the 35,; Miller v. Sharp, 68 Law J. Ch. ^""^ contract to entitle the lessee to 322. Se& Fix,. Spec. Pert § 6L75; enforce it the lessor has the same Humphreys v. Green, 10 Q. B, Dlv. equity, and both will be equally en- 2^^ titled ta specific performance," may 113 Seaman v. Aschermann, 51 WiSi be regarded) as questionable. 678, 8 N. W. 818, 37 Am. Rep. 849. 390 EXECUTORY CONTRACT FOR LEASE. § 66 conveyed, he was entitled to specific performance of the agree- ment to give a lease.^** Part performance is properly a doctrine applied by courts of equity in connection with that of specific performance. In some states, however, this appears to have been lost sight of, and the doctrine has occasionally been applied to support the recovery of damages in an action at law.^^^ In one state at least, where the statutes have undertaken to obliterate the distinction between law and equity, part performance has been regarded as authoriz- ing a recovery of damages for breach of an oral contract to lease.^18 e. Recovery for repairs or improvements. It is well estab- lished that, although a contract is unenforcible because not evi- denced by writing as required by the fourth section of the stat- ute of frauds, an action will lie to recover money or property de- livered under the contract, or for the value of services rendered thereunder.ii'^ In accordance with this rule, it has been held that if the proposed lessee makes repairs or improvements on the premises in accordance with the provisions of an oral contract for a lease, he may recover the cost thereof on the owner's re- fusal to make the lease. ^^^ On the other hand it has been de- cided that where one orally agreed with another to buy certain land and erect a building thereon, and then to lease the land to the latter, he could not, upon the latter 's refusal to take a lease, recover the amount of his outlay for land and buildings, less the present value of the property, since what was done by him was "not the contemplated consideration of any promise, void or otherwise, but merely a step taken by one party as a means to enable him to furnish the consideration, "ii^ i"Kincald v. KIncaid, 85 Hun, 141, 118 a; Williams v. Bemis, 108 Mass. 32 N. Y. Supp. 476. 91, 11 Am'. Rep. 318. 115 See ante, § 25 g (5). "s White v. Wieland, 109 Mass. iieDeisher v. Stein, 34 Kan. 39, 7 291; Parker v. Talnter, 123 Mass. Pac. 608. That the doctrine- is not ^^^- ^""^ ^'> ""^^^^ ^^^ agreement provided that the intending lessee pay a certain sum towards repairs to he made hy the lessor and hy Thompson, 87 Minn. 172, 91 N. W. ^^^ „j p^^^^^^ j^^ ^^^^ ^j^^ ^^p^.^^ 483; Smith v. Phillips, 69 N. H. 470, himself. Pulbrook v. Lawes, 1 Q. B.. 43 Atl. 183. Diy 284. See Worthington v. War- 117 Pollock, Contracts (6th Ed.) rington, 8 C. B. 134. 632; Browne, Stat, of Frauds, §§ 118, no Bacon v. Parker, 137 Mass. 309. applicable in an action at law on a contract for a lease, see Cram v. § 67 REMEDIES FOR BREACH. 391 § 67. Remedies for breach. a. Recovery of damages. If the party agreeing to give a lease refuses to do so, he is liable in damages to the other,i2o and the party agreeing to accept the lease is so liable in case he re- fuses to carry out his contract.i^i The proposed lessor is liable to suit even before the time for the making of the lease, if he previously, by leasing to another, disables himself from making; a good and effective lease.122 And the action need not, in any case, be deferred until the termination of the period for which the lease was to be granted.i^s The intending lessor is also liable in damages, it has been held, if he is shown not to have, at the time for the execution of the lease, sufficient title to support it.^^* The proposed lessee cannot, it has been decided, after having entered and occupied for the full term, sue for breach of the con- tract to give a lease, unless he can show that he demanded a lease, or that such demand was waived.^ 25 g^^ ^jjg proposed lessee is under no obligation to tender a written instrument for signa- ture, if not under an express obligation to prepare it or unless, it seems, there is a local usage for him so to do.^^®.. On the other hand, it has been held to be no defense to an action by the in- tended lessors on a contract fftr a lease that the instrument sent by them to the intended lessee for signature did not correspond with the agreement, if the latter made no objection to the form thereof and in effect refused to sign any lease whatever.i^T The measure of damages for the lessor's breach of a contract to 120 Ward V. Smith, 11 Price, 19; agreement was for the carrying on Hajrward v. Parke, 16 C. B. 295. of defendant's farm by plaintiff, 121 Bond V. Rosling, 1 Best & S. with a division of the products, and 371; De Medina v. Norman, 9 Mees. the agreement was held to be broken & W. 820; Freeland v. Ritz, 154 by the defendant's sale of the farm. Mass. 257, 28 N. E. 226, 12 L. R. A. 12* Stranks v. St. John, L. R. 2 C. 561, 26 Am. St. Rep. 244; Donovan v. p. 376; De Medina v. Norman, 9 P. Schoenhofen Brew. Co.. 29 Mo. Mees. & W. 820. App. 341. 125 Manning v. West, 60 Mass. (6 122 Ford V. Tiley, 6 Barn. & C. 325. Cush.) 463. 12s This is unquestionable, and i2e Cantley v. Powell, Ir. R. 10 C. seems to be decided in Taylor v. L. 200; Price v. Williams, 1 Mees. & Bradley, 4 Abb. Dec. (N. Y.) 363. W. 6. There It does not appear clearly 127 Freeland v Rita, 154 Mass. 257, whether the agreement was regarded 28 N. E. 226, 12 L. R. A. 561, 26 Am. by the court as a lease or as an St. Rep. 244. agreement to make a lease. The 392 EXECUTORY CONTRACT FOR LEASE. 67 give a lease would, in most states, no doubt, be tke value of the bargain lost to the proposed lessee,i28 that is, the difference be- tween the rental value ol the premises for the term and the rent agreed to be paid,!-^ and occasionally other losses caused him by the breach might possibly be allowed.i^o This is in accord with 128 See Taylor v. Bradley, 4 Abb. Dec. (N. Y.) 363; Garsed v. Turner, 71 Pa. 56. 129 Rhodes T. Baird, 16 Ohio St. 573 (semble); North Chicago St. R. Co. V. Legrand Co., 95 111. App. 435; Hall V. Horton, 79 Iowa, 352, 44 N. W. 569. And not the difference be- tween the agreed rent and that which he has to pay for a lease from the real owner. Knowles v. Steele, 59 Minn. 452, 61 N. W. 557. Con- tra, B. F. Myers Tailoring Co. v. Keeley, 58 Mo. App. 491. In Silva v. Bair, 141 Cal. 599, 75 Pac. 162, the rule of damages stated in the text is approved, but there the instrument in question seems to have been a lease, not a contract for a lease, though it is difficult to say from the opinion in which way the court regarded It. 130 In Hall v. Horton, 79 Iowa, 352, 44 N. "W. 569, it was held that "for breach of contract to make a lease and put a tenant in posses- sion," plaintiff could recover for loss of time caused by waiting to obtain possession and the amount of his expenses in coming from a distant state, and for money paid to a per- son employed by him to aid in man- aging the premises. Thotigh the court speaks of this as a "contract to make a lease," and though it was "designed to be succeeded by a formal lease," the court apparently treated it as a lease and not as a contract to make a lease, since if it had been a mere contract the pro- posed lessee could not well have complained that he was not ad- mitted into possession. In Driggs v. Dwight, 17 Wend. (N. Y.) 71, 31 Am. Dec. 283, the proposed lessee was allowed to recover the outlay caused by removal to the place where the premises lay, and here, likewise, it is in effect stated that a contract to make a lease is broken by the refusal to allow the proposed lessee to enter. The court entirely ignores the distinction be- tween a lease, which gives a right of possession, and a contract to lease, which does not. Ante, § 62. In Yates v. Bachley, 33 Wis. 185, it'is decided that the proposed lessee cannot recover for improvements made by him on the strength of the contract merely because the owner refuses to make the lease as agreed, but intimates that he could do so if he was evicted from the premises. That he cannot recover for improve- ments made by him, when the lease was not made because of defects in the title of the proposed lessor, is decided in Worthington v. Warring- ton, 8 C. B. 134. In Garsed v. Turner, 71 Pa. 56, the intending lessee was held to be en- titled to recover the profits which he would hiave made from the use of the premises. There, however, the agreement was not only to lease, but to furnish business likewise. Rhodes V. Baird, 16 Ohio St. 573, is to the effect that possible profits cannot be recovered. § 67 REMEDIES FOR BREACH. 393 the rule prevailing in most of the states as to the damages reco-v erable for breach of a contract to convey in fee simple.i^i In England, on the other hand, if the breach of a contract for the sale of land results from a defect of title, the proposed purchaser cannot recover for the loss of his bargain, but his damages are restricted to the expenses incurred by him in preparing the agree- ment and investigating the title,!^^ and this rule has been adopted with reference to a contract for a lease.^^^ But even there, pre- sumably, the proposed lessee would be entitled to recover for loss of his bargatEL if the owner willfully refuses, or negligently fails, to make the lease.^^* In case the lessee refuses to comply with the terms of an agree- ment by which he is bound to execute an instrument of lease, he is liable in damages to the amount of the excess of the total rent which he agreed to pkj during the term over and above what the owner is able to obtain from others after such refusal,^ ■'"> dis- eO'unttag, it has been said, both amounts at the legal rate of in- terest. i^* b. Specific performance. A suit for specific performance is an appropriate remedy for' the breach of an agreement for a lease. It is perhaps more often brought by the proposed kssiee against the proposed lessor,i3T but it will lie as well in favor of the pro- 131 See authorities cited 29 Am. & deposit made by the lessee as evl- Eng. Enc Law (2d Ed.) 72.5. denee of "good faitJi" at the time of 132 Flureau v. Thomhill, 2, W. Bl. making the eomtract was forfeited 1078; Bain v. FathergUI, L. B. 7 H. upon breaeh. by him as heiag "stip.ui- L. 158. lated damages." The actual deci'- 133 Gaslight & Coke Co. v. Towse, sioia was that lie was aot liable in as Ch. Div. 519. damages besides losing his deposit. 134 See Bngell v. Fitch, L. R. 4 Q. Compare "Weinberg v. Greenberger, B. 659; Jaques v. Millar, 6 Ch. Div. 47 Miac. 117, 93 N. Y. Supp. 53a, 153; Dart, Vendors & Purchasers where it was held that such a depos- (6th Ed.) 1082'. it was merely made "as security," 135 Silva V. Bair, 141 Cal. 599, 75 and not as fixing a penalty or liquid- Pac. 162; Post v. Davis, 7 Kan. App. ated damages for breach. Rosen* 217, 52 Pac. 903; Sausser v. Stein- feld v. Silver, 49 Miac. 117,, 9€ N. Y. metz, 88 Pa. 324 (semble) ; Cleve- Supp. 1027, is to the same effect, land V. Bryant, 16 S. C. 634. i3t People's Pure Ice Co. v. Trum- i38Miass!ie v. State Nat. Bank, 11 bull, 17 C, C. A. 43, 70 Fed. 166; Mc- Tex. Civ. App. 80, 32 S. W. 797. Carger v. Rood, 47 CaJ. 138; Clark In Schlumpf v. Sasake, 38 Wash. v. Glark, 49' Cal. 586; Cram v. •278, SO. Pac. 457, it wasi held that a Thompson, 87 Minn. 172, 91 N. W. 394 EXECUTORY CONTRACT FOR LEASE. | 67 posed lessor on refusal of the proposed lessee to accept or execute a lease.1^8 That the agreement is wanting in reasonable certainty as to matters of substance is ground for refusing specific perform- ancejisst as is the fact that a decree for performance would im- pose great hardship on one of the parties,^ *'^ or that the agree- ment is expressly subject to the performance of some condition which has not been fulfilled.^*! The court will be reluctant to decree specific . performance in favor of an insolvent lessee,!*^ unless, it seems, he offers ample security for the payment of the rent.^*^ But if the intended les- see has assigned the contract, his assignee may enforce it, not- withstanding the insolvency of the assignor.'*'' A decree has been refused when the remedy in damages was regarded as sufficient,'*^ when the term named would expire be- fore the grant of the decree,''*'^ and when the lease was to be granted if certain buildings were erected within a specified time, and, though the time had nearly expired, the buildings had not been begun. '*^ 483; Lenderking v. Rosenthal, 63 "o Talbot v. Ford, 13 Sim. 173; Md. 28; McFarlane v. Williams, 107 Costigan v. Hastier, 2 Schoales & L. 111. 33; St. Joseph Hydraulic Co. v. 160; City of London v. Nash, 3 Atk. Globe Tissue Paper Co., 156 Ind. 665, 512; Fry, Spec. Pert § 417 et seq.; 59 N. E. 995; "Wendell v. Stone, 39 Pomeroy, Spec. Perf. § 185 et seq. Hun (N. Y.) 332; Kincaid v. Kin- "i Abbot v. Blair, 8 Wkly. Rep, caid, 85 Hun, 141, 32 N. Y. Supp. 672; Williams v. Brisco, 22 Ch. Div. 476; Deeds v. Stephens, 8 Idaho, 514, 441; Modlen v. Snowball, 4 De Gex, 69 Pac. 534. F. & J. 143. 138 Cook V. Waugh, 2 Giff. 201; 142 Brooke v. Hewitt, 3 Ves. Jr. Jones V. Watts, 43 Ch. Div. 574; 253; Buckland v. Hall, 8 Ves. Jr. 92. Hanbury v. Litchileld. 2 Mylne & K. ,,3 McFarlane v. Williams, 107 111. 629; Seaman v. Ascherman, 51 Wis. 678, 8 N. W. 818, 37 Am. Rep. 849. 33. 144 Crosbie v. Tooke, 1 Mylne & 133 Callaghan v. Callaghan, 8 Clark t.,- , ,-, ■,, „ -r , , „ „ ^ „„^ ^ ^_ __ „7 , _ ^^.riT, ,_ ^- ■*^1' Powell V. Lloyd, 2 Younge J. 372. 145 Clayton v. Illingworth, 10 F. 374 ; Gardner v. Fooks, 15 Wkly. Rep. 388; Taylor v. Portington, 7 De Gex, M. & G. 328; Fry, Spec. Perf. § 380 et seq.; Pomeroy, Spec. Perf. § ^^'^- *^^- ^^^^^^^^^ ^^ Lever v. 159 et seq. For adjudications as ^°"'«'- f^^O" 1 Ch. 543. to what constitutes uncertainty in "" Nesbitt v. Meyer, 1 Swanst agreements to lease, see Foa, Land!. 2^^- & Ten. (2d Ed.) 275; Woodfall, i" Asylum for Female Orphans v. Landl. & Ten. (16th Ed.) pp. 113, Waterlow, 16 Wkly. Rep. 1102. 121. § 68 "USUAL." COVENANTS. 395 Specific performance will not be decreed if the contract waa obtained by the complainant by fraud or misrepresentation as to material facts.i^s Nor will it be decreed in favor of the pro- posed lessee if, having entered into possession, he has already been guilty of acts, such as waste or failure to repair, which would entitle the lessor to re-enter under the terms of the lease.^** But if there is a question on the evidence whether there has been a breach of condition, the court, it has been decided, will decree specific performance, and direct thB lease to be antedated, with liberty to the landlord to proceed at law on account of such al- leged breach.i^" There is a decision to the effect that a bill for specific perform- ance cannot properly be filed till the time at which the proposed term is to begin^^i The reason for such a view is not stated, and in another jurisdiction an opposite view is apparently adopted.^^^ § 68. "Usual" covenants. The parties to the agreement are entitled to have incorporated in the lease the "usual" eovenants,!^^ even though the agreement contains no stipulation to that effect. What are usual covenants depends on the usage of the locality ,1^* as well as the character of the property,^^^ and that a covenant was usual a number of years ago does not necessarily show that it is so at the present 148 willingham v. Joyce, 3 Ves. Jr. there was, under the circumstances, 168; Clermont v. Tashburgh, 1 Jac. no laches In delaying the proceeding & W. 112; Pomeroy, Spec. Perf. § 209 until the term was to begin, this et seq. ; Fry, Spec. Perf. § 650 et seq. clearly involving an assumption that 14!) Hill V. Barclay, 18 Ves. Jr. 63;' it might have been instituted before Nunn V. Truscott, 3 De Gex & S. 304; that time. Gregory v. Wilson, 9 Hare, 683; 153 Church v. Brown, 15 Ves. Jr. Jones' Devisees v. Roberts, 3 Hen. & 258; In re Lander & Bagley's Con- M. (Va.) 436. tract [1892] 3 Ch. 41; Eaton v. Whit- 150 Pain v. Coombs, 3 Smale & G. aker, 18 Conn. 233, 44 Am. Dec. 586; 449, 1 De Gex & J. 34 ; Lillie v. Legh, Scholtz v. Northwestern Mut. Life 3 De Gex & J. 204; Rankin v. Lay, Ins. Co., 40 C. C. A. 556, 100 Fed. 573. 2 De Gex, F. & J. 65; St. Joseph is* Parish v. Sleeman, 1 De Gex, F. Hydraulic Co. v. Globe Tissue Paper & J. 328 ; Strelley v. Pearson, 15 Ch. Co., 156 Ind. 665, 59 N. E. 995. Div. 113. 151 Friedman v. McAdory, 85 Ala. i'*^ Bennett v. Womack, 7 Barn. & 61, 4 So. 835. C. 627; Strelley v. Pearson, 15 Ch. 152 See Ryder v. Robinson, 109 Div. 113 ; Hampshire v. Wickens, 7 Mass. 67, where it. was decided that Ch. Div. 555. 396 EXECUTORY CONTHACT FOR LhJASE. s 68 tinie.15® There are numerous Englisk cases upon the question whether certain covenants are usual,^^^ but these obviously have little bearing upon the question as it may present itself in any particular locality in this country. There are also occasional de- cisions in this country on the subject.i^® The question has or- dinarily been decided by a court of equity without a jury, in a suit for specific perfarmance, and whether it has been decided as a question of law or of fact does not appear. It would seem, bow- ever, to be a mixed question of law and fact, as in the oroliinary case of the allegation of a eustom.i^^ 156 Hampshire v. Wickens, 7 Ch. unusuaul covenant sought to he in- Div. 555. serted in a lease of mining land, 157 They are collected in Woodfall, see Cochran v. Justice Min. Co., 16 Land!. & Ten. (16th Ed.) 127. Colo. 415, 26 Pac. 780. 15S The following have been de- 159 in Brookes v. Drysdale, 3 C. P. cided not to be "usual" covenants: Div. 52, it was left as a question of A provision that rent shall cease on fact to the jury to say whether cer- destruction of the buildings by fire tain covenants were usual. And (Eaton V. 'V^Tiitaker, 18 Conn. 222, 44 that it is a question of fact seems Am. Dec. 586) ; that the lessee shall to be implied in the view that evi- not be liable for injury by fire oven dence of conveyancers (Strelley v. though caused by his negligence, and Pearson, 15 Ck. Div. 113; Hart v. that on destruction by fire the lessor Hart, 18 Ch. Div. 670) or of other should immediately rebuild, rent to persons (Bennett v. Womack, 7 be suspended in the meantime Barn. & C. 627) is admissible upon (Bodman v. Murphy, 35 Md. 154) ; the question. It was, however, re- that the lessee should occupy person- garded as a questiom of law in ally (Clark v. Clark, 49' Cal. 586); Church v. Brown, 15 Ves. Jr. 265, that rent should be paid in advance and apparently so in Bampshiire v. (Arcade Realty Co. v. Tunney, 52 "Wickins, 7 Ch. Div. 555, where a Misc. 148, 101 N. Y. Supp. 593). It textbook on the subject was con- has likewise been decided that the suited. In Bennett v. Womack, 7 proposed lessor cannot insist that Bam. & C. 627, the fact that a cov- the lease shall contain covenante enant ordinarily appeared in convey- that repairs shall be made at the ances in that neighborhood was re- lessee's expense, that the lessor shall garded as making it a usual one, have the right to enter to inspect the while in Hodgkinson v. Crowe, L. R. premises, that the lessee shall keep 19 Eq. 5911, the fact that it was ord- them free from all nuisances and inarily so inserted was regarded as that if any abatement of nuisance be- utterly immaterial. In In re Can- comes necessary the lessee shall pay adian Pac. R. Co., 27 Ont. App. 54, the expense thereof. Hayden v. it was regarded as a question of fact. Lucas, 18 Mo. App. 325. As to an CHAPTER Vn. THE TITLE AND POSSESSION OP THE LESSOR. § 69. Lease by owner of limited estate. a. Tenant in fee simple. b. Tenant in fee tail. c. Tenant for life. d. Tenant for years. e. Periodic tenant. f. Tenant at will. g. Tenant at sufferance. 70. Powers of leasing. 71. Lease of undivided interest or interests. a. By joint tenant or tenants. b. By tenant or tenants in common. c. By one joint owner to another. 72. Lease subject to existing incumbrances. 73. Lease of mortgaged premises. a. Legal title in mortgagee. (1) Mortgagee not transferee of reversion. (2) Mortgagee entitled to possession. (3) Attornment to mortgagee. (4) New tenancy under mortgagee. (5) Who entitled to rent. (6) Acts showing attornment. b. Legal title in mortgagor. c. Effect of foreclosure sale. 74. Lease by mortgagee. 75. Lease by person not in possession. 76. Lease operating on after-acquired title. 77. Estoppel of owner of paramount title. 78. Preclusion of tenant to deny landlord's title. a. Historical considerations. b. The modem doctrine as stated. c. Application of doctrine in connection with particular actions. (1) Ejectment. (2) . Summary proceedings. (3) Action for rent. (4) Action for use and occupation. (5) Action arising from distress. (6) Miscellaneous classes of actions. (7) Action by or against stranger. 398 TITLE OF LESSOR. § 69 d. Evidence as to title. e. The doctrine in equity. f. Existence of relation of tenancy. g. Invalidity of the lease. h. Fraud or mistake in the making of the lease, i. Paramount title in tenant. (1) Right to acquire title. (2) Right to assert title. j. Lease by person acting in representative capacity, k. Attornment by person in possession. (1) The rule as usually stated. (2) Contrary decisions. (3) The theory of the rule. (4) Fraud in procuring attornment. (5) Attornment under mistake. 1. Persons subject to the rule of preclusion. m. Persons entitled to assert the rule of preclusion. (1) Transferees of reversion. ^^' (2) Mortgagees. (3) Persons non sui juris. n. Tenant may show transfer of the reversion. (1) To third person. (2) To himself. (3) Effect of sale under lien. o. Tenant may show nontransfer of the reversion, p. Duration of the preclusion or estoppel. (1) Relinquishment of possession by tenant. (2) Eviction under paramount title. (3) Expiration of the lessor's estate. (4) Repudiation of tenancy. § 69. Lease by owner of limited estate. a. Tenant in fee simple. One who has a fee simple estate can make leases to endure for any period.^ But, presumably, if his estate is subject to an executory limitation over to another person upon the happening of a contingency named, the lease would be voidable by the latter upon the taking effect of such limitation. b. Tenant in fee tail. A lease by a tenant in tail was, at common law, voidable as against the issue in tail, and absolutely void as against the remainderman or reversioner.^ By the stat- ute of 32 Hen. 8, c. 28, tenants in tail were enabled to grant leases 1 Com. Dig., Estates by Grant (G 2 Bac. Abr., Leases (D) 1. 2); 1 Piatt, Leases, 65. § 69 LEASE BY TENANT FOR LIFE. 399 for any term not exceeding twenty-one years, reserving the most accustomed yearly rent, or more, and subject to certain other re- strictions, but such a lease was good only against the issue in tail, and not against the reversioner or remainderman.* In this coun- try, in states in which an estate in tail is still recognized, the tenant in tail has ordinarily by statute the power to bar the entail by a conveyance in fee simple.* "Whether such a statute would be regarded as empowering him to lease, so as to bind the issue in tail and the reversioner or remainderman, would depend upon the construction of the particular language used. A statute auth- orizing a tenant in tail to convey as if seised of an estate in fee simple has been regarded as enabling him to make a lease, effec- tive as against the subsequent tenant in tail, the latter being en- titled to possession onlj' upon the expiration of the term thereby created.^ c. Tenant for life. A lease by a tenant for his own or an- other's life is valid for every purpose so long as the life endures. Upon the death, however, of the life tenant or of the cestui quo vie, the lessee has no right by reason of the lease to retain pos- session as against the person entitled in reversion or remainder," unless, it seems, he has encouraged the lessee to make improve- ments on the premises,'^ or has otherwise subjected himself to an estoppel in this regard,* or unless the lease was made under a power.8 A lease by a tenant pur autre vie comes to an end upon the death of the cestui que vie^" even though the lessor acquires the reversion after making the lease.^^ sBac. Abr., Leases (D) 2; 1 Piatt, Guthman v. Vallery, 51 Neb. 824, 71 Leases, 66. N. W. 734, 66 Am. St. Rep. 475; Mc- ■«See 1 Stimson, Am. Stat. Law, Intyre v. Clark, 6 Misc. 377, 26 N. I 1313; 1 Dembltz, Land Titles, § 18. Y. Supp. 744; Coakley v. Chamber- sLaidler v. Young, 2 Har. & J. lain, 8 Abb. Pr. (N. S., N. Y.) 37; • T & Iron Co. V. City of New York, 21 opinion by O Brien, J. t-, j «« -r. ^ -r-r i ^ -r r. *^ ^ Fed. 97; Patman v. Harland, L. R. 60.71 Leigh V. Dickeson, 15 Q. B. ,_ „, _. „^„ ^^ , ,-i i. -j ^ • ^ 17 Ch. DiT. 353; Marks v. Gartside, Div. 60. As to liability of tenant at ^g jjj j^^^ j^^. gantorn v. Van sufferance in use and occupation, see Duyne 90 Minn. 215 96 N. W. 41. post, i 304 d. "Thompson v. Flathers, 45 La. T2This is forcibly expressed by Ann. 120, 12 So. 245. And see post, Jessel, M. R., in Patman v. Harland, § 73. L. R. 17 Ch. Div. 353, as follows: 75 Taylor v. Mohan, 19 La. Ann. "The man who takes a lease Is in a 324; Friend v. Oil Well Supply Co., similar position as regards construe- 179 pa. 290, 36 Atl. 219. tive notice as (sic) a man who buys. 76 Weaver v. Coumbe, 15 Neb. 167, There could not be any reason for 17 n. W. 357; Hodge v. Giese, 43 N. any distinction between purchasing j. Eq. 342, 11 Atl. 484. See post, § a fee Simple and taking a lease for 146. 10,000 years. If a man who pur- 77 Marshall v. Eggleston, 82 111. chases a fee simple is bound to look App. 52. into the title in a regular way, so 's McLean v. McCormick (Neb.) is a man who takes a lease for 10,000 93 N. W. 697. § 73 LEASE OF MORTGAGED PREMISES. 409 Whether a lessee is a purchaser for a valuable eonsideration, entitled to the benefit of the recording acts, so as to be exempt from the operation of a prior unrecorded conveyance of which he had no notice otherwise, appears to be a question seldom, if ever, discussed. Presumably he is such a purchaser when he pays a valuable consideration for the grant of the lease,^* as is a pur- chaser of an already existing terni.8o "V^hen, however, he does not pay anything for the grant of the lease, but merely agrees to pay a periodic rent, it appears doubtful whether he is a purchaser for a valuable consideration. His position would seem to be analo- gous to that of a grantee in fee simple, who has not actually paid the price, but has merely agreed to pay it, at the time he receives notice of the earlier conveyance or incumbrance, in which case the grantee takes subject thereto.^i-^^ And so it would seem that a lessee is not a iona fide purchaser as against a prior conveyance or incumbrance which comes to his knowledge during any rent period, unless he has previously paid the rent for that period, which he would not usually have done. In one state it has been held that a lease is not a. conveyance within the protection of a statute protecting one claiming under a subsequent conveyance as against a prior unrecorded conveyance.^* In another it has been assumed that he is charged with notice of all matters appear- ing of record, as is any purchaser.** § 73. Lease of mortgaged premises. a. Legal title in mortgagee — (1) Mortgagee not transferee of reversion. A lease may be made of premises already subject to a mortgage. In such case the mortgage lien is paramount to the title of the lessor as it existed at the time of the lease, and the making of the mortgage, therefore, in no sense involves a transfer of the reversion to the mortgagee, even in jurisdictions where a T9 In Attorney General v. Back- si, s2 2 Pomeroy, Bq. Jur. §| 691, house, 17 Ves. Jr. 283, a sublessee 750. Cases cited 23 Am. & Eng. was protected as having given "a Bnc. Law (2d Ed.) 489, 517, 521; 2 fair consideration," when he had. it Tiffany, Real Prop. § 483, note 70. seems, paid nothing at the time of ss Topping v. Parish, 96 Wis. 378, the lease, hut agreed to make im- ,^j j^ -^ ggy provements to a certain amount, and ^^ ganborn v. Van Duyne, 90 Minn, subsequently made them. _ og jr -^ 41 so Harding v. Hardrett, Pinch, 9; McDaid v. Call, 111 111. 298. 410 TITLE OP LESSOR. | 73 mortgage passes the legal title, in this differing from a mortgage made by the lessor after the lease, which, in such jurisdictions, may, as hereafter explained,*^ be regarded as a transfer of the re- version to the mortgagee. Since one claiming under a mortgage made prior to the lease is not a transferee of the reversion, he ia not in privity with the lessor or lessee, and he cannot assert any rights against the latter under the lease, as by an action for rent or a distress proceeding.®^ (2) Mortgagee entitled to possession. Though the mortgagee can assert,^ no rights under the provisions of the instrument of lease, he mky, in jurisdictions where he has the legal title, and in the absence! of a clause giving the mortgagor the right of posses- sion,*^ assert\fiis right to possession as against such tenant claiming under a lease made subsequently to the mortgage, since the mort- gagor could not, by making such a lease subsequently to the mort- gage, affect the mo:ftgagee's rights previously vested. As against such prior mortgagee, having the legal title, the tenant under the mortgagor's lease is merely a trespasser, and as such may be evicted by the mortgagee, as he might be by any other owner of a paramount title.** It has been held that where the mortgagee demanded the rent from the mortgagor's tenant as a payment upon the interest due, and the tenant paid the rent to him under threat of distress, he thereby recognized that the tenant was then in lawful possession, and could not thereafter assort the contrary .^^ And likewise the mortgagee might, by encouraging the mortgagor's tenant to lay 85 See post, § 146 e. s7 See ante, § 45 a. 86 McKlrcher v. Hawley, 16 Johns. ss Keech v. Hall, 1 Doug. 21 ; Rog- (N. Y.) 289; Fitchburg Cotton Man- gj-g y Humphreys, 4 Adol. & E. 299; ufactory Corp. v. Melven, 15 Mass. corner v. Sheehan, 74 Ala. 452; 268; Mayo v. Shattuck, 31 Mass. (14 ^^ne v. King, 8 Wend. (N. Y.) 584, Pick.) 533; Teal v. Walker, 111 U. „, . ^ ' ^ ^ _^ .^ „ ^, „ „ ' _ ' ,, .,,'--_ 24 Am. Dec. 105; Gartside v. Outley, S. 242; Souders v. Vansickle, 8 N. J. Law (3 Halst.) 313; Kimball v. ^^ "'" ^lO- H Am. Rep. 59; Ameri- Lockwood, 6 R. I. 138; Drakford v. ''^'^ Freehold Land Mortg. Co. v. Turk,75 Ala. 339; American Freehold Turner, 95 Ala. 272, 11 So. 211; Land Mortg. Co. v. Turner, 95 Ala. Moran v. Pittsburgh, C. & St. L. R. 272, 11 So. 211; Hogsett v. Ellis, 17 Co., 32 Fed. 878; Doe d. Brown v. Mich. 351; Bartlett v. Hitchcock, 10 Mace, 7 Blackf. (Ind.) 2. 111. App. (10 Bradw.) 87; Rogers sn Doe d. Whltaker v. Hales, 7 V. Humphreys, 4 Adol. & E. 299; Bing. 322. Evans v. Elliott, 9 Adol. & E. 342. § 73 LEASE OF MORTGAGED PREMISES. 411 out money on improvements, estop himself to assert that the lat- ter was not rightfully in possession.^" (3) Attornment to mortgagee. Instead of actually evicting the mortgagor's tenant, the mortgagee may prefer to have such tenant remain in possession as his tenant, and if, upon his notifi- cation to the latter of his desire to this effect^ the tenant, expressly or by implication, recognizes him as his landlord, ^^■attarns" to him, as it is frequently expressed,^! the tenant will thereupon cease to hold under the mortgagor and will hold under the mort- gagee.82 Sxieh "attornment" to the mortgagee is in effect the acceptance of a new demise from the latter,^^ and in fact it is not unusual for the mortgagee actually to make, and the mortgagor's tenant to accept, a new lease. In case there is no new lease, defin- itely fixing the character and duration of the new tenancy, the tenant, by his mere acknowledgment of the mortgagee as his landlord, that is, by attorning to him, becomes, it would seem, in the first place his tenant at will, as does any other person who oc- cupies under a bare permission.^* but such tenancy at will would ordinarily, by the tenant 's payment of a periodic rent to the mort- gagee, be converted into a periodic tenancy .^^ The legal title being in the mortgagee, and he having conse- quently the right to possession as against the mortgagee even* be- fore default,®® it would seem that he may thus assert such right as against the mortgagor's tenant before as well as after default, 90 See Doe d. Parry v. Hughes, 11 was the tenant of the mortgagee, Jur. 698; Evans v. Elliot, 9 Adol. & who had the superior right to the E. 342; Gartslde v. Outley, 58 111. premises, rather than of the mort- 210, 11 Am. Rep. 59. gagor's vendee, and that the mort- 91 See ante, § 19. gagee was entitled to assert his right »2 Brown v. Storey, 1 Man. & G. to a share of the crops as provided 126; Doe d. Higginbotham v. Barton, by the agreement with him. 11 Adol. & E. 315; Corbett v. Plow- as See ante, § 19 c. den, 25 Ch. Div. 678. "* See ante, § 13 a (3). In Mason v. Gray, 36 Vt. 308, It 95 Corbett v. Plowden, 25 Ch. Div. was decided that where one pur- 678; Doe d. Prior v. Ongley, 10 C. B. chased land subject to a mortgage, 25; Doe d. Hughes v. Bucknell, 8 after condition broken, a person who Car. & P. 566; Gartside v. Outley, went into possession under an agree- 58 111. 210, 11 Am. Rep. 59. See ment to hold under such purchaser, ante, § 14 b (2) (a), but subsequently agreed upon noti- 98 i Jones, Mortgages, § 702; 2 Tif- fication from the mortgagee to hold fany. Real Prop. § 507. under the latter on 'certain terms, 412 TITLE OF LESSOR. | 73 and it has been so decided in England.*^ In other jurisdictions it has been decided that the mortgagee may force the mortgagor's tenant to relinquish possessions^ or to attorn to him®^ after there has been a default under the provisions of the mortgage, without any judicial a,ssertion that the mortgagee would or would not have this right before default. The only ground upon which the mort- gagee, entitled, even before default, to possession as against the mortgagor, could possibly be precluded from then asserting his rights against the tenant and obtaining the possession or an ac- knowledgment of tenancy from him, is the English statute, re- enacted ia most of the states of this country,!"" making void all attornments by tenants to strangers, with certain exceptions, in- cluding an attornment to a mortgagee "after the mortgage has become forfeited, ^'i^^ And there is at least one decision that it is by force of such statute that the mortgagor's tenant may, after de- fault, acknowledge the mortgagee as his landlord,^"!* thus imply- ing that such acknowledgment, if before the mortgagor's default, would not be valid to substitute the mortgagee as landlord in place of the mortgagor. The statute could, however, not prevent the mortgagee, entitled to possession, from asserting such right as against the mortgagor's tenant by an actual eviction of the latter, thi^ having no element of an attornment, and it does not seem probable that it was intended by the statute to preclude an attorn- ment by the tenant to one who, by reason of his paramount title, has the right immediately to evict him and who is threatening so to do.ioa It has been decided that when a mortgagee, after accepting an sTKeech v. Hall, 1 Doug. 21; Rog- achusetts Hospital Life Ins. Co. v. ers V. Humphreys, 4 Adol. & E. 299. Wilson, 51 Mass. (10 Mete.) 126. OS Hutchinsoa v. Bearing, 20 Ala. "o See ante, § 19 b (2). 798 ; American Freehold Land Mortg. 101 Jones v. Clark, 20 Johns. (N. Co. V. Turner, 95 Ala. 272, 11 So. Y.) 51. 211; Gartside v. Outley, 58 111. 210, In Kimball v. Lockwood, 6 R. I. 11 Am. Rep. 59; Henshaw r. "Wells, 138, the court seems to be under the 28 Tenn. (9 Humph.) 568; Doe d. mistaken impression that an at- Brown v. Mace, 7 Blackf. (Ind.) 2. tornment by the mortgagor's tenant 9® Lockwood V. Tracy, 46 Conn, to one claiming under a mortgage 447; Jones v. Clark, 20 Johns. (N. paramount to the lease is an at- Y.) 51; Anderson v. Robbins, 82 Me. tornment to the grantee of the re- 422, 19 Atl. 910, 8 L. R. A. 568; Kim- version, ball V. Lockwood, 6 R. I. 138; Mass- 102 See post„ § 78 p (2). § 73 LEASE OF MORTGAGED PREMISES. 413 attornment from the mortgagor's tenant, obtains a judgment of foreclosure and for possession against the mortgagor, on aver- ments that the latter is in possession, he thereby precludes himself from asserting that his own tenant is in possession, and cannot maintain a summary proceeding for possession as landlord against the tenant.103 (4) New tenancy under mortgagee. The tenancy thus created by attornment between the mortgagor 's lessee and the mortgagee is an entirely new tenancy, and not a continuation of the old ten- ancy with the substitution of a new landlord.*"* Any suggestions to the contrary must be erroneous.i"^ The mortgagee is not the* transferee of the reversion, he having obtained his title before there was any reversion, and the tenancy created by the mort- gagor's lease could be regarded as continuing, with the mortgagee as landlord, only on the theory that the mortgagor, in making the lease, acted as representative of the mortgagee, a theory which is not only not in accord with the facts, but is also incompatible with the decisions that the mortgagee cannot proceed against the ten- ant for rent in the absence of an attornment or new lease, as well as those that he may treat the mortgagor 's tenant as a trespasser. Whether the new holding under the mortgagee is upon terms similar to those of the lease made by the mortgagor is a question of fact, to be decided in each particular case with reference to the understanding of the mortgagee and his tenant, the parties to the new relation.*"* The terms of the new holding are evi- dently not the same as those of the old holding, if the parties ex- pressly agree upon different terms. In some cases it seems to be assumed that the new holding is at the same rent as was reserved in the lease made by the mortgagor,*"^ but, as before stated, this would seem to be a question of fact in each case. (5) Who entitled to rent. After an actual eviction by the mortgagee of the mortgagor's tenant, the former will no longer y>s Turner v. Davis, 48 Conn. 397. Bxch. 159; Keith v. R. Gancia & Co. 104 Oakley v. Monck, 3 Hurl. & C. [1904] 1 Ch. 774, 783. 706, L. R. 1 Exch. 159; Brown v. loTLockwood v. Tracy, 46 Conn. Storey, 1 Man. & G. 117; Towerson 447; Clark v. Abbott, 1 Mo. Ch. 474; V. Jackson [1891] 2 Q. B. 484; Cor- Massachusetts Hospital Life Ins. Co. bett V. Plowden, 25 Ch. Div. 678. v. Wilson, 51 Mass. (10 Mete.) 126; lOB See ante, § 19 c. Henshaw v. Wells, 28 Tenn. (9 106 See Oakley v. Monck, L. R. 1 Humph.) 568. 414 TITLE OF LESSOR. § 73 be liable under the lease to the mortgagor for rentj^"* since an eviction under paramount title is always a defense to a claim for rent;!'^'' and the case will be the same when, to avoid an actual eviction, the tenant attorns to the mortgagee,^ i'' since such an attornment to the owner of a paramount title to avoid eviction is properly to be regarded as a "constructive" eviction by par- amount title.1^1 The new tenancy created by the tenant's acknowledgement of the mortgagee as landlord gives the latter a right to assert against the tenant a claim for rent thereafter accruing, provided a promise 'to pay rent can be inferred, as it might, no doubt, from the pay- ment to the mortgagee of one installment of rent,ii2 and, in the absence of such ground for inferring a promise to pay rent, an action would lie, it seems, in favor of the mortgagee, for the value of the use and occupation from the time of the attornment, on the presumption of an agreement to that effeet.^i^ This question of the theory of recovery by the mortgagee is not discussed by the cases, and in some, as before stated, it seems to be considered that it is necessarily based on the original lease by the mortgagor, and that the amount thereof is to be measured by the terms of the lease. ^1* But this, it is believed, is a mistaken theory, and such former lease given by another person, not in privity with the new 108 See Simers v. Saltus, 3 Denio value of the use and occupation, cal- (N. Y.) 214; Smith v. Sheppard, 32 culated from the last rent day up Mass. (15 Pick.) 147, 25 Am. Dec. to the time of the mortgagee's 432; Duff v. Wilson, 69 Pa. 316. entry and demand of rent. Ander- 109 See post, § 182 e (2). son v. Robbins, 82 Me. 422, 19 Atl. 110 Maglll V. Hinsdale, 6 Conn. 464, 910; Adams v. Bigelow, 128 Mass. 16 Am. Dec. 46; Lockwood v. Tracy, 365. 46 Conn. 447; Fitzgerald v. Beebe, 7 m See post, §§ 182 p (2), 186 a Ark. 310; Farris v. Houston, 74 (2). Ala. 162 ; Smith v. Shepard, 32 Mass. 112 Lockwood v. Tracy, 46 Conn. (15 Pick.) 147, 25 Am. Dec. 432; 447; Anderson v. Robbins, 82 Me. Stone V. Patterson, 36 Mass. (19 422, 19 Atl. 910; Cook v. Johnson, Pick.) 476, 31 Am. Dec. 156; Welch 121 Mass. 326. V. Adams, 42 Mass. (1 Mete.) 494; us Doe d. Downe v. Thompson, 9 Adams v. Bigelow, 128 Mass. 365; Q. B. 1037; Lucier v. Marsales, 133 Jones V. Clark, 20 Johns. (N. Y.) 51; Mass. 454. As to apportionment of Kimball v. Lockwood, 6 R. I. 138; rent when the lease included per- Stedman v. Gassett, 18 Vt. 346. sonal chattels, see post, § 69 c, at The mortgagor cannot demand an note 78. apportioned part of the rent, or the n* See ante, at note 106. § 73 LEASE OF MORTGAGED PREMISES. 415 landlord, can, it would seem, be at most merely one item of evi- dence to be considered, in' connection with the form and mode of the attornment and the tenant's action thereafter, bearing on the question of the extent of the obligations assumed by the tenant under the new tenancy. Though the mortgagee may thus acquire a right of action against the tenant in possession for rent or for use and occupation from the time of the attornment, he cannot assert any right of action for rent which had previously accrued under the mortga- gor's lease, since, as before stated, there is no privity between him and the tenant, previous to the creation of the new tenancy l)y the acknowledgment of him as landlord, the "attornment" ■ to him, so-ealled.i^®' ^^^ And since the tenant cannot assert a par- amount title until he is actually or constructively evicted,!^'' he-^ cannot repudiate liability for rent to the mortgagor accruing be- fore his eviction by reason of his enforced attornment.!^* (6) Acts showing attornment. The question has occasionally arisen as to what will effect such attornment to the mortgagee as will entitle the latter to proceed against the tenant for rent or for use and occupation, and the tenant to defend against a claim by the mortgagor for rent.^^^ It is settled in England that a,\, mere notice by the mortgagee to the mortgagor's tenant to pay rent to him, not assented to by the tenant, will not be sufficient to create a tenancy in favor of the mortgagee, even though the tenant continues in possession, since a tenancy cannot thus be created without the assent of the proposed tenant.^'" Nor will •such notice, without the tenant's assent thereto, be effective as a defense to an action by the mortgagor for rent, since there is no element of constructive eviction in the mere giving of such no- tice, the tenant not having acted thereon.i^i The same view, that 115, 116 Souders v. Vansickle, 8 N. rights of the lessee under a lease J. Law (3 Halst.) 313; Massachu- made by a mortgagor. Kennett v. setts Hospital Life Ins. Co. v. Wilson, Plummer, 28 Mo. 142. 51 Mass. (10 Mete.) 126; Anderson na See ante, § 19 d. V. Robbins, 82 Me. 422, 19 Atl. 910. 120 Evans v. Elliot, 9 Adol. & E. See ante, at note 86. 342; Towerson v. Jackson [1891] 2 117 See post, § 78. Q. B. 484, disapproving Brown v. lis Wheeler v. Branscombe, 5 Q. Storey, 1 Man. & G. 117; Underhay v. B. 373; McDowell v. Hendrix, 67 Read, 20 Q. B. Div. 209. Ind. 513. ^^^ Wheeler v. Branscombe, 5 Q. A third person cannot question the B. 373; Wilton v. Dunn, 17 Q. B. 294. 416 TITLE OP LESSOR. § 73 the notice itself, not acted on by the tenant, does not create a ten- ancy in favor of the mortgagee, has been asserted in this coun- try ,122 though in at least one case the contrary view, then held by the English courts, was approved.^^^ The soundness of the later English view, that the tenant of the mortgagor does not, without his assent, become the tenant of the mortgagee, the owner of a paramount title, merely because the latter indicates his desire in that regard, would seem unquestionable. The payment of rent by the tenant to the mortgagee on demand therefor has been regarded as a sufScient attomment,^ 24 unless, it seems, it is otherwise intended by the parties,!^^ as when it is merely on account of interest due under the mortgage.!^® b. Legal title in mortgagor. In states where the mortgagee has not, even after default, the legal title to the land, he cannot, it is evident, assert any right of possession as against the mort- gagor's tenant until the title has passed to him by foreclosure^^? And even though the mortgage has been foreclosed, so long as the period of redemption endures, the mortgagor's tenant cannot See Hickman v. Machin, 4 Hurl. & good payment and to relieve the N. 716. lessee from paying the rent to the 122 Gartside v. Outley, 58 111. (10 mortgagor (Johnson v. Jones, 9 Bradw.) 210; Bartlett v. Hitchcock, Adol. & B. 809; tJnderhay v. Read, 10 111. App. 87, 11 Am. Rep. 59; 20 Q. B. Div. 209) on the theory that Comer v. Sheehan, 74 Ala. 452 (die- this is merely a payment upon the turn) ; Drakford v. Turk, 75 Ala. prior mortgage, and is consequently 339, 51 Am. Rep. 454. See Hawes good, as a payment of the rent, hy V. Shaw, 100 Mass. 187; Field v. analogy to the cases holding that a Swan, 51 Mass. (10 Mete.) 112. tenant may, upon paying a prior 123 Stedman v. Gassett, 18 Vt. 346. charge, assert It as a payment of Lucier v. Marsales, 133 Mass. 454, rent. Post, § 177 e. seems to be to the same effect. i^b wheeler v. Branscombe, 5 Q. B. Compare Hawes v. Shaw, 100 Mass. 373, where the payment of rent was 187. to the mortgagee as agent of the 124 Doe d. Higginbotham v. Bar- mortgagor who expressly authorizefl ton, 11 Adol. & E. 307, 315; Gartside payment of the rent to him. V. Outley, 58 111. (10 Bradw.) 210, 11 126 Johnson v. Jones, ■& Adol. & B. Am. Rep. 59. 809; Underhayv. Read, 20 Q. B. Div. A payment of the rent to the 209; Forse v. Sovereen, 14 Ont. App. mortgagee under threat of eviction 482. , has, in England, been held, without 127 Hogsett v. Ellis, 17 Mich. 351; reference to whether this consti- Myers v. White, 1 Rawle (Pa.) 353. tuted an attornment, to constitute a § 73 LEASE OF MORTGAGED PREMISES. 417 repudiate his tenancy under the mortgagor and acknowledge a tenancy under the mortgagee.i^^ c. Effect of foreclosure sale. A purchaser at foreclosure sale under a mortgage made before the lease is, it is evident, not in privity with the mortgagor 's tenant to any greater extent than the mortgagee, and, consequently, he cannot recover rent under the lease made by the mortgagor,i29 ^nd he may, at his option, treat the tenant as a trespasser,!*" unless he has so acted as to be estopped from doing so.^^^ If, however, such purchaser at fore- 128 Chadbourn v. Rahilly, 34 Minn, is in the possession of a tenant, 346, 25 N. W. 633; Mills v. Hamilton, notice to him by the purchaser or his 49 Iowa, 105; Mills v. Heaton, 52 vendee of the purchase after the Iowa, 215, 2 N. W. 1112. In this last lapse of ten days from the time of case it is decided that In the Iowa the sale, and that it has not been statute niaking void an attornment redeemed, vests the right to the pos- to a stranger, the exception of an session in him in the same manner attornment to a mortgagee "after the as if the tenant had attorned to mortgage has been forfeited" him. This provision, it is said in means after all rights under the American Freehold Land Mortg. Co. mortgage have been lost. v. Turner, 95 Ala. 272, 11 So. 211, 129 American Freehold Land Mortg. was intended, not to create the re- Co. V. Turner, 95 Ala. 272, 11 So. lation of landlord and tenant be- 211; McDermott v. Burke, 16 Cal. tween the purchaser and the ten- 580; Bartlett v. Hitchcock, 10 111. ant of the mortgagor, but merely to App. (10 Bradw.) 87. See post, §§ cut off the tenant from any defense 78 n (3), 148. against the right of the purchaser 130 American Freehold Land Mortg. to the possession of the property, Co. V. Turner, 95 Ala. 272, 11 So. 211; and to vest in him the same right of McDermott v. Burke, 16 Cal. 580; possession as a landlord has on the Bartlett v. Hitchcock, 10 111. App. termination of the tenancy. It (10 Bradw.) 87; Downard v. Groff, 40 seems, however, that the purchaser Iowa, 597; Simers v. Saltus, 3 Denio under the foreclosure would have (N. Y.) 214; Russum v. Wanser, 53 the right to immediate possession Md. 92; Hemphill v. Tevis, 4 Watts without any statutory provision. & S. (Pa.) 535; Western Union Tel. isi In McDermott v. Burke, 16 Cal. Co. V. Ann Arbor R. Co., 61 U. S. 580, Field, C. J., says that "there are App. 741, 33 C. C. A. 113. 90 Fed. cases, undoubtedly where the pur- 379. chaser would be estopi>ed from treat- Such tenant cannot claim emble- ing the tenant of the mortgagor as ments as against the purchaser, a trespasser; as, for instance, where Downard v. Groff, 40 Iowa, 597; the lease was taken upon the en- Lane V. King, 8 Wend. (N. Y.) 584, couragement of the mortgagee, and 24 Am. Dec. 105. the purchaser was cognizant of the Ala. Code 1907, § 4757, provides fact at the time.of his purchase." that if land sold under a mortgage L. and Ten. 27. 418 TITLE OF LESSOR. S 73 V: / closure sale demands possession or the payment of rent of the mortgagor's tenant, and the latter thereupon expressly or im- pliedly agrees to hold under him, there is, as in the case of such an agreement with a mortgagee entitled to possession, a construc- tive eviction of the tenant entitling him to defend against a claim for rent by the mortgagor.i^'' Upon such attornment by the ten- ant to the purchaser or upon the making of a lease to the former by the latter, a new tenancy is created,^^* and whether such new tenancy is upon the same terms as the tenancy under the mort- gagor is a question of fact in each case.^^^ Unless the tenant under the former lease does, by accepting a new lease, or other- wise attorning, indicate a willingness to hold under the purchaser, he cannot, it seems clear, be subjected to liability as a tenant of the latter. That one enters as tenant of one person does not sub- ject him to liability as tenant to another person having par- amount title.13^ But a purchaser under foreclosure has, it seems, so long as the mortgagor's' right of rederaption exists, no power to make a lease, or to accept an attornment, which will be effec- tive as against the mortgagor in ease the latter redeems.^^^ 132 Simers v. Saltus, 3 Denio (N. it was in effect so decided where y.) 214. there was a sale under a judgment 133 McFarland Real Estate Co. v. prior to the lease. And in Newton v. Joseph Gerardi Hotel Co., 202 Mo. Speare Laundering Co., 19 R. I. 546, 597, 100 S. W. 577. And see ante, 37 Atl. 11, it was held that the pur- § 73 a (4). But in Pennsylvania, by chaser of land under foreclosure can statute, the purchaser at execution not recover the full rent reserved sale upon the mortgage may adopt under a lease made (it seems) suh- the lease made by the mortgagor, ject to the mortgage, the lease in- Act June 16, 1836 (P. L. 755, § 119). eluding personalty, and that he Pepper & Lewis Dig. 1993. could recover the value of the use 134 See ante, § 73 a (4). and occupation of the land only. 135 Holmes v. McMaster, 1 Rich. There being no attornment to the Eq. (S. C.) 340, and authorities cited purchaser, it would seem that there ante, note 86. was no relation of tenancy to sup- But in McFarland Real Estate Oo. port use and occupation. v. Joseph Gerardi Hotel Co., 202 Mo. In the analogous case of a sale for 597, 100 S. W. 577, it is apparently nonpayment of taxes, it has been considered, on the strength of Kane recognized that the tenant under the V. Mink, 64 Iowa, 84, 19 N. W. 852, pre-existing lease does not become that the tenant under the prior the tenant of the purchaser. Carl- lease, even without attorning to the son v. Curran, 42 Wash. 647, 85 Pac, purchaser, became his tenant at 627. will. In the Iowa case referred to iso See ante, note 128. If there is § 73 LEASE OF MORTGAGED PREMISES. 419 There are decisions to the effect that a purchaser at foreclos- ure of a mortgage prior to the lease is entitled to possession as against the tenant, even though the latter was not a party to the foreclosure proceeding.i^T There are, however, cases to the con- trary,is8 and it would seem that a lessee, whether for one or for a thousand years, or his assignee, should not be affected by a de- cree rendered after the lease, to which he is not a party, to any greater extent than would a grantee in fee simple. Whether the purchaser under a proceeding to which the mortgagor's tenant is not a party is entitled to possession as against such tenant would seem to depend on whether the mortgagee was entitled to possession as against him before foreclosure. In jurisdictions where such tenant is, as regards the mortgagee, a mere trespasser, he cannot, it seems, have any better position as regards one pur- chasijig at foreclosure sale under the mortgage, while, in juris- dictions where the mortgagor retains the right of possession as against the mortgagee, he, or one claiming under him, whether by way of lease or otherwise, cannot be deprived of such right by a proceeding to which he is not a party. It has befen decided that when the mortgagor lessor was not made a party to the fore- closure proceeding, the lessee could not refuse to pay rent on the grotmd of a constructive eviction by the purchaser, based on the lessee's attornment to the latter under threat of disposses- sion.issa It would seem, however, that if the purchaser has the right of possession as against the lessee, by reason of the latter having been made a party to the proceeding, he has title par- amount to that of the lessee, and that, consequently, an eviction by him, actual or constructive, might be asserted in defense to a redemption after foreclosure sale, 137 McDermott v. Burke, 16 Cal. the lessee of the purchaser may be 580; Downard v. Groff, 40 Iowa, 597; evicted by the mortgagor redeeming. Western Union Tel. Co. v. Ann Tyson v. Chestnut, 118 Ala. 387, 24 Arbor R. Co., 61 U. S. App. 741, 33 So. 73. In this case it was assumed C. C. A. 113, 90 Fed. 379. that the tenant would be entitled to iss Richardson v. Hadsall, 106 111. emblements, and that, in view of 476; Hirsch v. Livingston, 3 Hun (N. this, the mortgagor's acceptance of Y.) 9; Lockhart v. Ward, 45 Tex. the rent for the balance of the crop 227. year could not be regarded as creat- i^sa Alford v. Carver, 31 Tex. Civ. Ing a tenancy for the balance of the App. 607, 72 S. W. 869. term of the lease. 420 TITLE OF LESSOR. § 74 the claim for rent, irrespective of whether the lessor was a party to the proceeding. It has been decided in New York that, upon a sale under a mortgage prior to the lease, the lessee is entitled, by reason of the covenant for quiet enjoyment, to be paid from the surplus proceeds of sale the amount of loss resulting from the destruc- tion of his leasehold estate.^^^ § 74. Lease by mortgagee. A mortgagee, having the legal title and the right of possession, has the right to make a lease of the premises, but upon the re- demption of the mortgage all rights under the lease come to an end, unless the mortgagee had authority from the mortgagor to make a lease extending beyond the time of possible redemp- tion.i^o In states where the mortgagee has no legal title he has, except when the possession is expressly given him for an ascer- tained time, no more right than any stranger to make a lease,i*' but the lessee will be precluded from asserting this in defense to an action for rent or for possession. i*^ jf }ie is expressly given the right of possession, he is, it seems, a lessee, and as such en- titled to make a sublease to the same extent as any other lessee.^*' 139 Clarkson v. Skidmore, 46 N. Y. er the fact that a lease by the mort- 297; Larkin v. Misland, 100 N. Y. gagee, stated to be by him "as 212, 3 N. E. 79; Ely v. Collins, 45' agent," was to be regarded as a , Misc. 255, 92 N. Y. Supp. 160. The lease by him in his own right or by two latter cases do not, as does the his as agent for the mortgagor, first, state that the lessee's right to m Connolly v. Giddings, 24 Neb. compensation is by reason of the cov- 131, 37 N. W. 939; Candler v. Mit- enant for quiet enjoyment. This, it chell, 119 Mich. 464, 78 N. W. 551. seems, was tacitly assumed. 142 See post, § 78. This principle 140 Hungerford v. Clay, 9 Mod. 1; is ignored in Union Mut. Life Ins. Willard v. Harvey, 5 N. H. 252; Holt Co. v. Lovitt, 10 Neb. 301, 4 N. W. V. Rees, 44 111. 30. 986, it being there held that the In Holt V. Rees, 46 111. 181, it was mortgagee could not recover rent of held that the court would not re- his lessee. quire the redelivery of the premises That the tenant of the mortgagee by the lessee to the mortgagor im- attorns to the purchaser at fore- mediately upon redemption if this closure sale does not place the mort- would involve a hardship upon the gagee in possession so as to entitle lessee. him to bring trespass against the In Chapman v. Smith [1907] 2 Ch. purchaser. Lindenbower v. Bentley, 97, it was regarded (by Parker, J.) 86 Mo. 515. as a question of construction wheth- 1*3 This seems to be the theory on § 75 LEASE BY PERSON NOT IN POSSESSION. 421 Occasionally, in order to make a lease of mortgaged land, where the legal title and right of possession are in the mortgagee, effectual as against both the mortgagor and mortgagee, both join in the lease. Such an instrument operates as a lease by the mort- gagee with a confirmation by the mortgagor until the estate of the former has been terminated by the payment of the debt se- cured, and then it becomes the lease of the mortgagor and the confirmation of the mortgagee.^*** A right of re-entry reserved only to the mortgagor in such a lease has been held to be avail- able to neither, not to the mortgagee, since it did not purport to give him any right of re-entry, and not to the mortgagor, because he had no legal interest in the reversion.^** It has been also de- cided that if the covenants of such a lease to pay rent and to re- pair are with the mortgagor and his assigns only, the mortga- gee's assignee cannot sue thereon, since they are collateral to his interest in the land.i*^ ^ 75. Lease by person not in possession. At common law, and under the statute 32 Hen. 8, c. 9, one could not make a lease of land in the adverse possession of an- other which would be valid as against such other, that is, a dis- seisee could not by a iease,!*^' ^" as he could not by a feoff- ment,"« transfer his right of entry to another. This prohibi- tion of a transfer of land in the adverse possession of another no longer exists in many jurisdictions,^*^ and so it has been which Candler v. Mitchell, 119 Tyrw. 289; Doe d. Barker v. Gold- Mich. 464, 78 N. W. 551, is decided, smith, 2 Tyrw. 710. There it was held that the mort- i*^ Saunders v. Merryweather, 3 gagee, if so requested hy the mort- Hurl. & C. 902. gagor, could make a valid lease, i^s Webb v. Russell. 3 Term R. 393. that is, apparently, that such re- i^c "t Comyn, Landl. & Ten. 17 ; quest from the mortgagor constituted Bac. Abr., Leases (I) 4; Sheppard'e in effect a grant to the mortgagee of Touchstone, 269; Lee v. Norris, Cro. the right of possession for the pur- Eliz. 331. pose of supporting the lease. The "s Litt. § 347; Co. Litt. 213 b; decision might have been based on Partridge v. Strange, Plowd. 88. the ground that the lessee of the Article by Prof. Maitland, 2 Law mortgagee could not, in a summary Quart. R«v. 483. proceeding to recover possession, i*» See 1 Stimson, Am. Stat. Law, question the lessor's title. § 1401; 3 Harv. Law Rev. 25, article 143a Doe d. Barney v. Adams, 2 by J. B. Ames, Esq.; 19 Harv. Law 422 • TITLE OF LESSOR. § 76 occasionally decided that a lease of land adversely possessed is valid.^50 Even in jurisdictions where the old rule prevails, the lease would usually be valid except as against the adverse pos- sessor, the disseisor.! 51 The fact that the land is, at the time of the lease, in the actual possession of another, holding under the lessor, the lessor hav- ing merely a reversion, cannot affect the validity of the lease. In other words, the validity of "concurrent" leases and leases "in reversion" is unquestionable.i^^ ]sjor is a lease invalid be- cause the lessor has not yet entered under a lease to him, there being no adverse possession.^^^ § 76. Lease operating on after-acquired title. It is a well settled rule of the common law that if a man by indenture, that is, by an instrument sealed by both parties, makes a lease for a term of years of land in which he has no interest, and he thereafter acquires an interest in such land, the lease will oper- ate upon his interest as if it had been vested in him at the time of the lease.15* This rule has been stated to be based upon "the circumstance that a lease for years was anciently nothing more Rev. 278, article by George P. Costi- lessor shall be In possession of the gan, Esq. premises." Compare the statement 150 Rice V. 'Whitmore, 74 Cal. 619, in 1 Piatt, Leases, 51, that "it is 16 Pac. 501, 5 Am. St. Rep. 479; clear that a person having a present Beck V. Minnesota & Western Grain right to the future enjoyment of an Co., 131 Iowa, 62, 107 N. W. 1032, estate, as a remainderman or rever- 7 L. R. A. (N. S.) 930; Kinsman v. sioner, expectant either upon an Greene, 16 Mo. 60; Lewis v. Brandle, estate for years, for life, or in tail, 107 Mich. 7, 64 N. W. 734. may make a lease, which will take 151 University of Vermont v. Jos- effect in possession on the determ- lyn, 21 Vt. 52. And see authorities Ination of the preceding estate." cited 2 Tiffany, Real Prop. p. 1120; iss Co. Litt. 46 b; Saffyn v. Adams, 9 Harv. Law Rev. 278, 281. Cro. Jac. 60; Doe d. Parsley v. Day, 152 See post, § 146 d. But in 2 Q. B. 147, 156; Beck v. Minnesota Cohen v. Suckus, 32 Misc. 689, 66 N. & Western Grain Co., 131 Iowa, 62, Y. Supp. 467, it is said, without any 107 N. W. 1032, 7 L. R. A. (N. S.) discussion, that if the owner of the 930. reversion on an outstanding lease in is* Co. Litt. 45 a, 47 b; Rawlyns' another under which such other is Case, 4 Coke, 53; Anonymous, Moore, in possession makes a lease, this 20, pi. 69; s. c, Dal. 26, pi. 4; Trevi- lease is invalid, since "it is essential van v. Lawrence, 1 Salk. 276; Bige- to the validity of a lease that the low. Estoppel (5th Ed.) 420; Mc- § 76 AFTER-ACQUIRED TITLE. 423 than a mere contract. "i55 The rule has been applied in the case of a mortgagor, who, though having divested himself of the legal title by the making of the mortgage, made a lease, and sub- sequently redeemed, and he v(^as regarded as precluded from claiming the land as against his lessee.iBe In this country an analogous, though possibly questionable,^^'' rule has been applied in the case of conveyances in fee contain- ing particular classes of covenants for title, and it seems prob- able that a lease, although not by indenture, VFOuld be regarded as effective to pass such an after-acquired title, provided it con- tains covenants of the character referred to. And even apart from the presence of any covenants in the lease, the doctrine, ap- parently equitable in its nature, that if a deed of conveyance purports to convey an estate of a certain character the grantor will be estopped, upon subsequently acquiring title, to deny that such an estate was conveyed, '^^ would ordinarily be applied in the case of a conveyance by way of lease.^^^ Kenzie v. Lexinigton, 34 Ky. (4 91 S. W. 31; Skidmore v. Pittsburg, Dana) 129. C. & St. L. R. Co., 112 U. S. 33. 155 Williams, Real Prop. (18th In Wright v. MacDonnell, 88 Tex. Ed.) 476. See Rawle, Covenants for 140, 30 S. W. 907, a like doctrine wajg Title (5th Ed.) § 243, note. applied in favor of the lessee's right 156 Omelaughland v. Hood, 1 Rolle, to remove fixtures in accordance Abr. 874, pi. 10, 876, pi. 5; Webb v. with stipulations of the lease, the Austin, 7 Man. & G. 701. lessor having procured the para- 157 See Rawle, Covenants for Title, mount title after making the lease. § 248 et seq.; 2 Smith's Leading In Iowa Sav. Bank -v. Frink, 1 Cases, Hare & Wallace's notes (8th Neb. Unoff. 14, 26, 92 N. W. 916, it Am. Ed.) 839 et seq.; 2 Tiffany, was held that a transferee of the re- Real Prop, i 456. version was precluded from assert- 158 See Rawle, Covenants for Title, ing, as against the tenant, a para- §§ 245, 265. Imount title procured by him after 159 The view that the lease oper- accepting the transfer of the rever- ates on the after acquired title of sion. the lessor is applied, without any In Burr v. Stenton, 43 N. Y. 462, it suggestion of the necessity of a seal is in effect decided that if there is or of any covenants of title, in Mc- a covenant for quiet enjoyment Kenzie v. Lexington, 34 Ky. (4 which is limited to the acts of the Dana) 129; Cunningham v. Pattee, lessor and his representatives, the 99 Mass. 248; Porch v. Fries, 18 N. subsequent acquisition of title by the J. Eq. (3 C. E. Green) 204; Austin lessor does not enure to the benefit V. Ahearne, 61 N. Y. 6; Blackburn v. of the lessee. Muskogee Land Co., 6 Ind. T. 232, 424 TITLE OF LESSOR. | 76 The common-law rule that the after-acquired interest will pass under a lease by indenture does not apply in case the actual state of the lessor's title at the time of the lease appears from the indenture.^ "^o That is, there is no estoppel (by deed) when the truth appears. Furthermore, it is stated by writers of high standing not to apply in case the lessor had some interest in the land at the time of the lease, though not an interest so great as that which he purported to grant,i®i and Coke himself says that "whensoever any interest passeth from the party, there can be no estoppel against him. "^'^^ That, as Coke elsewhere says,!^-' if a tenant for his o%\'n life or the life of another makes a lease for years by indenture, and afterwards acquires the reversion upon his life estate, and the life then comes to an end, he or his heir may avoid the lease, is unquestioned.^®* But Lord Holt distin- guishes between such a case, where the lessor has at the time of the lease an estate sufficient to support the lease, that is, a life estate, greater than an estate for years, and the case of a lease for years by one having a less estate for years, and considers the estoppel applicable in the latter case as if no interest had passed,^®^ and the contrary view is questioned by another high 160 Jenkins' Centuries, 255, case anything on the subject of estoppel." 46; Hermitage v. Tomkins, 1 Ld. The case was ejectment, and the Raym. 729; Cooks v. Bellamy, 1 Keb. plea of not guilty put in issue the 531; Co. Litt. 352 b. demise by the lessor of the nominal 1611 Piatt, Leases, 56; 2 Preston, plaintiff, and the question was Abstracts, 217; Williams, Real Prop, merely whether the demise as stated, (18th Ed.) '476; Bigelow, Estoppel being made by tenant for life and {5th Ed.) 391. remainderman, would support the 162 Co. Litt. 45 a. There is a like ejectment. See Friend v. Estabrook, dictum by him in his report of Tre- 2 W. Bl. 1152. port's Case (6 Coke, 15). This lat- les Co. Litt. 47 b. ter case has been frequently cited in is* Anonymous, Moore, 20, pi. 69; support of this doctrine, but, as has s. c, Dal. 26, pi. 4; Rothwell's Case, been remarked (opinion of Bushe, C. Het. '91; Doe d. Strode v. Seton, 2 J., in Pluck V. Digges, 2 Huds. & Cromp. M. & R. 728; Langford v. B. 108) "in that case, no question Selmes, 3 Kay & J. 220. of estoppel, as between the plaintiff iss Oilman v. Hoare, 1 Salk. 275; and defendant, arose, or from facts s. c, sub nom., Hilman v. Hore, of the case, could have arisen; and Carth. 247. In this case one made a in the report of the same case by lease for forty years to A and a Popham, the chief justice then on year later made a lease for forty the bench ( Poph. 57, sub. nom., ReX years to B, and it was held that the V. Bery), no mention is made of fact that the last of the forty years §'J6 AFTER-ACQUIRED TITLE. 425 authority .1^8 By the modern cases, a so-called lease made by a tenant for years, for a term greater than his own term, is an as- signment and not a lease,^"^ and consequently the question whether such a transaction would operate on an after-acquired interest would seem primarily to depend on the question whether an assignment operates on. such an interest. Presumably, in most jurisdictions, the courts would apply the doctrine of estoppel in such a case to the same extent as in the case of a conveyance in fee simple.^ *^ Even in cases where the estoppel does not operate owing to the existence of an interest in the lessor at the time of the lease, equity will, it is said, if the lease is on a valuable consideration, require the lessor to make it good out of the interest subsequently acquired by him.i®^ passed by the second lease would assignor merely because the latter not prevent the operation of the afterwards acquired the fee. In estoppel. See, also, note to Faw- this case it was held that the ex- cett V. Hall, Ale. & N. 248. The istence of any reversion giving a same view as that of Lord Holt is right of distress for the rent re- clearly asserted in Jenkins' Centur- served was too uncertain to justify ies, 255, case 46 (Rawlyn's Case, also the court in compelling a purchaser reported 4 Coke, 53). Here it is of the rent to complete the trans- said that "tenant for life makes a action. The statement of the vice lease by indenture for 1/000 years, chancellor that Gllman v. Hoare, 1 and afterwards purchases the re- Salk. 275, cannot be regarded as version, and dies. His heir shall authority because of a further re- avoid this lease, for It was the lease port of the same case in 3 Salk. (at which gave the interest, and a free- p. 152, sub. nom., Holman v. Hore), hold is a greater estate in law than seems to be based on a misreading of any term. But if a lessee for the latter report. There is no con- twenty years makes a lease by in- tradiction between the two reports, denture for 1,000 years, this is an nor is the . statement of facts in the estoppel. If the lessor afterwards first report questioned in the later purchases the fee of the said land, one. it binds him and his heirs." iso gee Bac. Abr., Leases (O), an In Langford v. Selmes, 3 Kay & article supposed to be by Chief J. 220, Page Wood, V. C, decided Baron Gilbert, that what purported to be a demise i«7 See post, § 151. at a rent by a tenant for years, but i^^ See ante, at note 158. which, being of the whole term, "8 2 Preston, Abstracts, 217, re- took effect as an assignment (see f erred to in Bigelow, Estoppel (5th post, § 151), could not be regarded as Ed.) 394; "Williams, Real Prop, a demise with a reversion in the (18th Ed.) 476. 426 TITLE OF LESSOR. | 77 § 77. Estoppel of owner of paramount title. It may happen that, though the lessor has no title, or has merely a defective or limited title, the person who has the rightful title is estopped by his actions to assert a right to possesion as against the lessee. For instance, where the rightful owner induced one to take a lease from another by stating that the latter had an interest in the property, he was regarded as estopped to deny that the lessor had such interest.!'^" And, presumably, there might be cases in which the rightful owner's failure to assert his rights, thereby causing the lessee to m^ke improvements in ignorance of the defects in his lessor's title, might estop him thereafter to assert his rights as against the lessee.^''! The pos- sibility of the estoppel of the paramount owner, claiming under a mortgage, to assert his rights as against a tenant of the mort- gagor, has been judicially suggested.^^^ § 78. Preclusion of tenant to deny landlord's title. a. Historical considerations. Littleton, after saying that the lessor for term of years may have an action of debt for the ar- rearages of rent against the lessee, proceeds: "But in such case it behoveth that the lessor be seised in the same tenements at the time of his lease; for it is a good plea for the lessee to say, that the lessor had nothing in the tenements at the time of the lease, except the lease be made by deed indented; in which case such plea lieth not for the lessee to plead. "^'^^ Coke, commenting on the first part of this passage, says : ' ' And the reason for this is, for that in every contract there must be quid pro quo, for contractus est quasi actus contra actum; and therefore if the lessor hath nothing in the land, the lessee hath not quid pro quo, nor any- thing for which he should pay any rent," and then says that "if the lease be made by deed indented, then are both parties con- cluded, but if it be by deed poll the lessee is not estopped to say, that the lessor had nothing at the time of the lease made.''^''* 170 Hill V. Wand, 47 Kan. 340, 27 172 Evans v. Elliot, 9 Adol. & B. Pac. 988, 27 Am. St. Rep. 288. And 342; McDermott v. Burke, 16 Cal. see Willis v. McKinnon, 37 Misc. 386, ggQ. (jartside v. Outley, 58 111. 210, 75 N. Y. Supp. 770. 11 ^^ j^^p 59 171 See Stiles v. Cowper, 3 Atk 692, and cases cited in 2 Tiffany, Real Prop. § 457. See, also, Sugden, Powers (Sth Ed.) 716. i73Lltt. § 58. 174 Co. Litt. 47 b. § 78 PRECLUSION TO DENY TITLE. 427 To understand these statements by Coke, his words must be construed in connection with those of Littleton, and with refer- ence to the mode of regarding rights in land at that time. One who was "seised" of land, even though wrongfully so, had an estate of freehold in the land,i"*» and such a person could cer- tainly not be regarded as having "nothing in the land."i^5 On the other hand, a person wrongfully dispossessed, "disseised" as it was expressed, had a "right of entry" only, or a mere "right of action." When, therefore. Coke says that the lessor cannot recover rent if "he hath nothing in the land," he means, what Littleton in effect says, that there can be no recovery of rent if the lessor was not seised at the time of making the lease, except in the one case when the lease is by indenture, that is, under the seals of both parties, in Which case the lessee is estop- ped to deny his liability for the rent on the ground that the les- sor was not seised. Coke did not say, and could not have meant, that if one who was seised by wrong, as having disseised another having a better right, made a lease for years, the lessee could re- fuse to pay rent because the lessor was not entitled to the land as against the other. Such an idea would have been contrary to the whole theory of seisin, which governed the law of land in his day. That such was not the law is apparent from the fact that the old authorities state that liability for rent ceases upon an eviction under paramount title,^'''^ thereby in effect stating that the mere existence of a paramount title, that is, a right of entry or a right of action in another, did not affect such liabil- ity.i''^ And the same is clearly shown by the recognized lan- guage of the replication to the plea that the lessor had nothing in the tenements, the plea of "nil hdbuit in tenementis," as it was called, such language being that, at the time of making the lease, the lessor was seised of or had a sufficient "estate" to make the 174a Lltt. 519; Co. Litt. 296 b. But- Abr. f. 429; Co. Litt. 201 b; Bro. ler's note; Williams, Seisin, 7; 2 Abr., Dette, pi. 39. Preston Abstracts of Title, 284, 293; "^ " a disseisor makes a lease for Steam's Real Actions, 6; Pollock & ^^^''^' rendering rent, and after- Wright, Possession, 94. ^^^^^ ^"^ disseisee enters, and ousts the lessee, yet the lessee shall be ac- "5 Nor can he be so regarded at countable for the rent incurred be- the present day. See Prof. Ames' j^re the ouster." Bac. Abr., Rent article, 3 Harv. Law Rev., at p. 27. (L), citing 2 Rolle, Abr. 429. And "6 Y. B, 20 Hen. 6, 20 b; 2 Rolle, see cases cited post, § 182 e (2). 428 PRECLUSION TO DENY TITLE. S 78 demise.i'^s ^j^ averment that he had an absolute right to the land, good as against the whole world, was unnecessary. Mod- ern writers not infrequently speak as if, at common law, pro- vided the lease was not by indenture, the lessee could, under a plea of nil habuit in tenementis, show in defense to an action for the rent that another had a better right than the lessor to the land, and in effect assert that it is owing only to the development of the law of estoppel in pais that he no longer can make such a defense. Such a view is, it is conceived, entirely erroneous.^ '^^ It appears then that, unless the lease was by indenture, that is, under the seals of both lessor and lessee,!^'' the latter could re- fuse to pay rent if the former was not seised at the time of the making of the lease, or, presumably, was not holding in behalf of one who was seised, as when the lessor was himself a tenant for years holding under a freehold tenant, and the question arises as to when a person was regarded as seised. The subject of seisin has been most thoroughly and learnedly discussed by sev- eral modern writers,i*i and no attempt will here be made to re- state their conclusions. It is sufficient to say that one could acquire seisin either by right or by wrong, that is, the seisin could be transferred to him by the ceremony known as livery of seisin, 178 See 1 Wms. Saund. 276 d, note are brief and obscurely expressed, (1), 325 a, note (4); Wilson v. seem to proceed upon the theory Feild, Skin. 624; Treviban v. Law- that the lease was void as being rence, 2 Ld. Raym. 1048, Holt, 282 ; made by one without title or author- Harris v. Parker, 2 Vent. 271; Cur- ity, and that consequently the eov- son v. Faunt, 1 Lll. Ent. 168; Y. B. enant entered into in connection 2 Hen. 7, 4; Bro. Abr., Issue Joined, therewith was also void. See ante, pi. 89; Gyll v. Glass, Cro. Jac. 312; § 54, note 66. 1 Chitty, Pleading (7th Ed.) 630. isoThat a lease by deed poll is i79Knipe v. Palmer, 2 "Wils. 130, not sufficient to create the estoppel, is not, perhaps in entire harmony see, in addition to the above cita- with the views above stated. This tions from Littleton and Coke, Bac. case involved an action on a cov- Abr., Leases (O) ; 1 Piatt, Leases, enant, the nature of which is not 55. stated, by the committee of a lun- isi See 2 Pollock & Maitland, atic against one who entered under Hist. Eng. Law, 29 et seq. Articles an unauthorized lease made by such by Prof. Maitland in 2 Law Quart, committee, and it was apparently Rev. 481, 4 Law Quart. Rev. 24, 286, held that he could plead nil habuit and by Prof. Ames in 3 Harv. Law in tenementis in defense, though he Rev. 23; Butler's note to Coke's Lit had enjoyed possession for the term tleton, at f. 330 b; Challis, Real Prop, of the lease. The opinions, which (2d Ed.) 206. § 78 HISTORICAL CONSIDERATIONS. 429 made by one having the right to transfer it, or it could be trans- ferred to him by a "tortious conveyance" by one in possession but having no right to transfer the seisin, or he could acquire it by a disseisin eiJeeted without the connivance of the person in possession, a physical ouster of such person, whether the person previously seised or one holding in his behalf. Since seisin ordinarily meant possession, either by the person seised or by some person in his behalf, it could rarely occur, at common law, that one who had obtained possession from his les- sor could assert that the seisin was in one other than the lessor or one under whom the lessor held by lease. Consequently, the right of the lessee under a lease, not by indenture, to assert that the lessor had nothing in the land, amounted, for most purposes, merely to a right, in case he was unable to obtain possession be- cause the seisin was in another than his. lessor, to assert that fact in defense to rent. This, it seems, is what Coke means by saying that "if the lessor hath nothing in the land, the lessee hath not quid pro quo"; and in accordance with this view is the language of Lord Holt, a century later, to the effect that the lessee might in an action of debt for rent upon a parol lease ' ' give in evidence nil hahuit in tenemeniis, the plaintiff never having been in posses- sion," but that "if the plaintiff had been in possession, though but tenant at will, etc., then the defendant could not have given this in evidence without having been evicted. "i82 go regarded, the les- see's right to plead that the lessor had nothing in the tenements seems to be merely the equivalent of the rule, generally recognized at the present day,i*^ that it is a good defense to an action for rent that the lessee is excluded from possession by one having par- amount title, taken in conjunction with the rule recognized in some jurisdictions,!^* that such exclusion from possession is a good defense even when at the hands of a wrongdoer. While, as above stated, at common law, in almost every case the person in possession of the land would be the person seised of the land, or one holding under the latter, so as to give no opportunity for the assertion by the lessee, to whom the lessor had given possession, of seisin in another not in privity with the lessor, there was^at least one case in which this would not be so, i82Chettle V. Pound, 1 Ld. Raym. is3 See post, § 182 a (1). 746 (A. 0. 1701). 184 See post, § 182 a (2). 430 PRECLUSION TO DENY TITLE. § 78 this being that before referred to, of a tenant at sufferance, who, as we have seen,!*^ while not holding under the person entitled to the possession, was not seised of an estate of freehold by wrong. Consequently, the question might have arisen whether, if a ten- ant at sufferance made a lease, not by indenture, the lessee could, even though he was given possession by such tenant, refuse to pay rent on the ground that the latter was not seised, and the analogous question might also have arisen whether, if the person in whom the seisin was, the reversioner or remainderman, made a lease, the fact that the actual possession was in the tenant at sufferance could have been asserted in defense to an action for rent. Furthermore, after the introduction of conveyances oper- ating under the statute of uses, the transfer of the possession no longer necessarily accompanying the transfer of the seisin, i^^ the question might have been raised whether, if the grantor in such a conveyance remained in possession, one to whom he subse- quently made a lease, not by indenture, and whom he put in pos- session, could assert, in defense to an action for rent, that the seisin had passed out of the lessor; and so, if the grantee under such a conveyance made a lease, the question might have been raised whether the lessee coald, although his lessor had the seisin by force of the statute, assert in defense to an action for rent that the possession was in another, his lessor's grantor. Another case which might have involved diiificulty would have arisen when the person seised, after making a lease for years and placing the lessee in possession, made another lease not by indenture. In such a case the second lessee would have been excluded from possession and yet he could not truly assert that his lessor* hacJ nothing in the tenements. At the present day, presumably, in these cases, the liability for rent would be regarded as dependent on the acquisition of possession by the lessee, or rather on the opportunity to acquire it.^*''' What view would have been taken in the time of Coke as to the right of the lessee to assert that he had not received possession, for the reason that his lessor, though seised, was not possessed, or to assert that, though he had re- ceived possession, his lessor was not seised, and did not hold 185 See ante, § 15 a. 195, 352; authorities cited Tiffany, 186 Pollock & Wright, Possession, Real Prop. p. 207, n. 34. 55; Williams, Real Prop. (18th Ed.) "t See post, § 182 a, b. § 78 HISTORICAL CONSIDERATIONS. 431 under one who was seised, is a matter as to which we have no information. The foregoing remarks, to the effect that, unless the lease was by indenture, while the lessee had a right to show, in defense to an action for rent, that the lessor was not seised at the time of the lease, he could not show merely that another had a better right to the land than the lessor, have reference to an action of debt for rent, which was practically the only action utilized for the recovery of rent until a comparatively late date.i** The same rule applied, it would seem, in the case of an action of covenant brought on a lease by deed poll,i89 but if the lease was by inden- ture the lessee was, in an action of covenant, as in an action of debt, estopped to assert that the lessor was not seised at the time of the lease.190 In the case of a lease by indenture, the plea of nil hahuit in tenementis was, as before indicated, inadmissible, that is, the les- see could not, in defense to an action for rent, assert that the les- sor was not seised of the land or was not holding under one who was seised. Likewise, any plea equivalent to that of nil hahuit was inadmissible,* ^1 and if any Such plea was pleaded, the estop- pel by indenture appearing of record, the plaintiff could de- jU^pi92 But if the plaintiff rej)lied "habuH, etc." he waived the estoppel.' 83 The estoppel by indenture of the lessee to assert that the lessor had nothing in the land applied even though the lease was of land of which the lessee was himself seised.i^* The 188 See articles by Professor Ames, sue upon the covenant for rent. But 2 Harv. Law Rev., at pp. 56, 377. there the covenant was to pay, not 189 See Aylet v. Williams, 3 Lev. to him, but to the person who had 193. But see Knipe v. Palmer, 2 given him the power of attorney. Wils. 130, ante, note 179. lai Palmer v. Bkins, 2 Ld. Raym. 190 Palmer v. Ekins, 2 Ld. Raym. 1550, 2 Strange, 817; Blake v. Fos- 1550; Parker v. Manning, 7 Term R. ter, 8 Term R. 487. 537; Blake v. Foster, 8 Term R. 487; 192 Kemp v. Goodal, 1 Salk. 277; Cuthbertson v. Irving, 4 Hurl. & N. Palmer v. Ekins, 2 Strange, 817, 2 742, 6 Hurl. & N. 135. Ld. Raym. 1550. In Frontin v. Small, 2 Ld. Raym. issTrevivan v. Lawrance, 1 Salk. 1418, 2 Strange, 705, it was held that 276, 3 Salk. 151, Holt, 282, 2 Ld. one who, having authority to exe- Raym. 1036, 1048. cute a lease for another as attorney, 194 James v. Landon, Cro. Eliz. 36, wrongfully executed an indenture Moore, 181, pi. 323; Rawlyn's Case, of lease in his own name, could not 4 Coke, 54 a. 432 PRECLUSION TO DENY TITLE. | 7g estoppel did not, however, in any case, extend beyond the term of the lease.1^5 Whether, in the later cases involving the exclusion of the de- fense of "nil habuit in tenementis," in an action for rent on a lease by indenture, the defense intended to be asserted was al- ways a lack of seisin rather than an outstanding paramount title, may perhaps be doubted. With the disappearance of the primary importance attached to the idea of seisin, the idea of asserting, as a defense to an action for rent, an outstanding right of entry or action, might readily suggest itself, and the plea of nil hahuit in tenementis, though originally framed for a somewhat different purpose, might naturally be availed of as the proper mode of asserting this defense. And it seems that in the English decisions hereafter referred to, in which the defense of nil habuit was overruled in connection with actions or proceedings other than debt or covenant for rent, the intended defense may have been a lack of title, that is, of right, rather than a lack of seisin, in the lessor. In an avowry for rent, that is, a plea in replevin for goods dis- trained, justifying the taking, the avowant was, by the common law, required to show either that he, while seised of a certain estate, made the lease in question, or that, if it was made by an- other, the reversion had passed to him by descent or grant, and even if a tenant for years had leased for a less term, it was necessary for him in his avowry to show the commencement of his own term by laying the fee in some person who granted his term and then deducing the title to himself from the grantee of the term.18^ In other words, it was necessary in every case for the avowant to set forth the derivation of his title from some per- son who was seised of an estate of freehold prior to the lease. This was often a difficult thing to do, especially in the case of long terms of years,i^^ and, to relieve the landlord in this regard, it was provided by the statute of 11 Geo. 2, c. 19, § 22, that it should be lawful for all defendants in replevin "to avow or make cognizance generally, that the plaintiff in replevin, or other ten- ant of the lands and tenements whereon such distress was made, 185 Co. L,itt. 47 b, 48 a; Rawlyn's ise 2 "Wms. Saund. 285, note 3 to Case, 4 Coke, 54 a; James v. Lan- Poole v. Longuevill; Gilbert, Dis- don, Cro. Bliz. 36, Moore, 181, pi. tress & Replevin, 185, 188. 323; Bac. Abr., Leases (O). 19^2 Wms. Saund. loc. cit. § 78 HISTORICAL CONSIDERATIONS. 433 enjoyed the same under a grant or demise at such a certain rent, during the time wherein the rent distrained for incurred, which rent was then and still remains due; * * * without further setting forth the grant, tenure, demise or title of such landlord or landlords." This statute was held to preclude the plaintiff in replevin from pleading to the avowry nil hahuit in tenementis, that is, he could not attack the distress on the ground that the lessor had no estate in the land sufficient to support the demise.^^^ In ejectment by a landlord against his tenant to recover the premises, it was stated, as an established rule, in the latter part of the eighteenth century, that the defendant tenant could not assert a right to the land in a third person as against the land- lord for the reason, as stated by Lord Mansfield, that "the tenant derives his title from him. "^^^ This rule was stated at that time^"" to be of somewhat recent origin, but a suggestion at least to the same effect was made a hundred years earlier,2oi and we find, among the older authorities, no ease in which a lessor was debarred from recovery of possession at the end of the term on the ground that a third person had a better right to the land. The propriety, and indeed necessity, of excluding such a defense in an action by the landlord to recover possession is hereafter considered.^''^ It had, at a date some thirty years earlier than that last re- ferred to, that is, about the middle of the eighteenth century, been decided that in indebitatus assumpsit for use and occupation 19S Syllivan v. Stradllng, 2 Wlls. Knight v. Smythe, 4 Maule & S. 347 208. (1815). Dampier, J., said that "It 199 Doe d. Bristow v. Pegge, 1 has been ruled often that neither Term R. 758, note. the tenant, nor any one claiming by zooBuller, J., in Doe d. Brlstow v. him, can controvert the landlord's Pegge, 1 Term R. 758, note, said: title. * * * This, 1 believe, has "An objection has been taken at the been the rule for the last twenty-flve bar that the plaintiff in ejectment years." must recover by the strength of his 201 Scroggs, C. J., is, in 2 Show, own title. The old cases certainly 126, reported to have said, anno 32 say so, but for the last forty or fifty Can 2 (1680), in an ejectment case, years, constant exceptions to this that "payment of rent to the lessor rule have been admitted," and he or to any for his use is a sufBcient then refers to previous decisions by title for the plaintiff if the defend- himself allowing recovery by the ant have no title at all but posses- lessor as against the lessee without sion." reference to title. And in Doe d. 2*2 See post, § 78 c (1). L. and Ten. 28. 434 PRECLUSION TO DENY TITLE. | 78 the defendant could not plead nil habuit in tenementis^^^ for the reason, it would seem, that the statute of 11 Geo. 2, c. 19, § 14, on which this action is based, in terms gives the action to the landlord, without any suggestion that the landlord must have seisin or title.^"* It appears likewise to have been decided, pre- vious to the statute, that this defense was not available in spe- cial assumpsit to recover on an express promise to pay the value of the use and occupation^^s for the reason, presumably, that the promise was regarded as so entirely collateral to the reservation of rent, and so purely person.al in character, as to be independent of the title to the land.^os The above review of the earlier authorities bearing upon the question of the right of a tenant to assert, as against the land- lord, either that the lessor was not seised or that another had a better right to the land than the lessor at the time of the lease, shows that, by the end of the eighteenth century, his inability so to do had been asserted in connection with proceedings of six distinct classes: (1) An action of debt for rent; (2) an action of covenant; (3) an avowry in support of a distress; (4) an ac- tion of ejectment; (5) indebitatus assumpsit for use and occupa- tion; and (6) special assumpsit for use and occupation. In the first two eases the ruling -was based on the theory of estoppel by indenture, in the third on a particular statute, in the fourth, appar- ently, on the equitable principle that one who has procured pos- session from another for a limited period shall not be allowed to retain possession after such period on the plea that there is an outstanding paramount title, in the fifth upon the language of the statute on which the action is based, and in the sixth upon the theory of the particular action. It thus appears that the earliest assertions of the view that the lessee (or tenant) could not deny the title of the lessor were 203 Lewis V. Willis, 1 Wils. 314 supra, it is said to have been de- 11752), in which the court says cided in Richard v. Holditch, 13 Geo. that "there is no occasion * * * 1, that non habuit is a bad plea to to show any title upon these con- an action upon the case for the use tracts," and refers to the statute 11 and occupation. Geo. 2, c. 19, § 14. 20s As to the character of the ac- 204 See the statement of Denman, tion on the express promise in such C. J., in Dolby v. lies, 11 Adol. & E. case, see article by Prof. Ames in 335. 2 Harv. Law Rev., at p. 378. 205 In Lewis v. Willis, 1 Wils. 314, § 78 THE MODERN DOCTRINE. 435 based on grounds peculiar to the particular class of action in which the question arose, and this being so, they would seem to furnish an insufficient basis for the assertion of a broad and gen- eral rule that the lessee (or tenant) cannot deny the title of the lessor (or landlord.) This generalization began to be made, how- ever, in the early part of the nineteenth century, and before long the courts and textwriters began to apply the word "estoppel" in connection with the rule thus laid down, with the result that it is now frequently asserted as almost an axiom in the law, that, as it is generally stated, "a tenant is estopped to deny his land- lord's title." b. The modern doctrine as stated. The asserted doctrine, which is the subject of our present discussion, is, as just stated, ordinarily formulated in the shape of a rule that "a tenant is estopped to deny his landlord's title. "^o'f But, we may remark, the question in any particular case is as to the right of the les- see or tenant to question the title of the lessor at the time of the lease, and the right to question the landlord's title is involved only because it is the title of the lessor. That is, conceding that otherwise the rule of estoppel as stated is correct, it might per- haps be better expressed by saying that "a tenant is estopped as against the landlord to deny the lessor 's title. ' ' This statement seems proper in order to justify the inclusion of this matter in a chapter devoted to a discussion of "the title and possession of the lessor. ' ' The preclusion of the lessee or tenant to deny the lessor 's title extends, in any case, only to the land which is the subject of the lease, and not to adjoining land, although both are together the subject of litigation between the parties at the same time.*"* The rule of estoppel or preclusion has been held to apply al- though there is a demise of a building only, without the ground 207 In Georgia it is provided by deny the title of his landlord in an statute (Code 1895, § 3122) that the action brought by such landlord, or tenant cannot dispute his land- any person claiming under him, to lord's title nor attorn to another recover possession of the property." claimant while in possession. 2«8 Brenner v. Bigelow, 8 Kan. In Minnesota it is provided (Rev. 496; State v. Boyce, 109 N. C. 739, Laws 1905, § 3329) that "when any 14 S. B. 98; Pederick v. Searle, 5 person enters into the possession of Serg. & R. (Pa.) 236; Swan v. real property under a lawful lease, Castleman, 63 Tenn. (4 Baxt.) 257. he shall not while so in possession 436 PRECLUSION TO DENY TITLE. | 78 on which it is located, ^^^ and so it has been decided that one in possession of land as tenant cannot assert a right to remove a building thereon because he owned the building at the time of the lease.210 The preclusion of the lessee (or of one claiming under him) to assert a defect in the lessor's title has invariably been regarded as independent of the nature of the defect.^n In considering the asserted rule of preclusion or estoppel as applied in the decisions of the last hundred years, that is, since the beginning of the nineteenth century, we will take up the vari- ous classes of actions in turn, and seek to ascertain the grounds for applying such a rule in connection with each. We will find, it is , believed, that while ordinarily the tenant is properly pre- cluded from denying the title of the lessor, the reasons for such preclusion differ so entirely in the different classes of actions as to furnish small justification for the assertion of any general rule in this regard. c. Application of doctrine in connection with particular actions — (1) Ejectment. In an action of ejectment by the land- lord against his tenant, either at the expiration of his tenancy or in the enforcement of a condition of re-entry, the tenant cannot, it has been frequently decided, set up defects in the landlord's title as a defense, and this rule has been ordinarily asserted as 209 Pool V. Lamb, 128 N. C. 1, 37 803; Randolph v. Carlton, 8 Ala. S. E. 953. 606; Russell v. Pabyan, 27 N. H. 529; 2ioBetts V. Wurth, 32 N. J. Eq. McCurdy v. Smith, 35 Pa. 108), or (5 Stew.) 82. that there was an outstanding lease 211 So, for instance, the lessee can- to another (Phlpps v. Scnlthorpe, not show that the lessor claimed 1 Barn. & Aid. 50), or that the land under a yoid execution sale (Leshey had, previous to the lease, been sold V. Gardner, 3 Watts & S. [Pa.] 314, under execution to a third person 38 Am. Dec. 764), or that the lessor- (Wood v. Turner, 26 Tenn. [7 was merely a mortgagee (Alderson Humph.] 517). Likewise, if one V. Marshall, 7 Mont. 288, 16 Pac. takes a lease from two parties as 576), or that the lessor, a religious tenants in common, he is estopped, society, had no power to hold the in an action by them for possession) land (First English E. L. Church to as«ert that they are owners of V. Arkle, 49 W. Va. 92, 38 S. E. 486), distinct portions of the land, and so or that the conveyance under which not entitled to sue jointly. Oakes v. the lessor claimed was in fraud of Munroe, 62 Mass. (8 Cush.) 282. creditoTR < Palmer v. Melson, 76 Ga. § 78 IN PARTICULAR ACTIONS. 437 merely one application of a general rule that the tenant is estop- ped to deny his landlord's title.212 The basis of the rule that, in ejectment, the defendant cannot assert the invalidity of the lessor's title, has been well stated as follows: "The effect of allowing the tenant to deny the right of the landlord would be to take the estate from the latter, and confer it on the former, whenever there was a defect, either in the title itself, or the evidence brought forward to sustain it. The law consequently does not tolerate a course which is equally inconsistent ynth public policy and private faith, and would lead a prudent owner to consider the loss or inconvenience which might result from keeping his property in his own hands, prefer- able to the risk involved in placing it in the hands of a tenant. ' '^^^ This is, it seems, a clear case of estoppel in pais. One who in- duces another to give him possession of land for a limited period by agreeing to hold it of him as tenant, that is, by taking a lease from him, is estopped thereafter to assert a right to retain posses- sion indefinitely on the ground that a third person is entitled thereto. "Whether the same rule of estoppel should apply in y such a proceeding as against a showing by the lessee of a better ' title in himself will be hereafter considered. The question whether the rule of estoppel or preclusion applies as against a lessee who has not entered into possession under the lease is one which, it is evident, cannot ordinarily arise in an action by the lessor for possession, since, if the lessee has not en- tered, the lessor will not have occasion to bring an action against 212 Doe d. Knight v. Smythe, 4 I. 403, 56 Atl. 110; Wood v. Turner, Maule & S. 347; Peyton v. Stith, 30 27 Tenn. (8 Humph.) 685; Casey v. U. S. (5 Pet.) 485; Shelton v. Hanrick, 69 Tex. 44, 6 S. W. 405; Eslava, 6 Ala. 230, 31 Am. Dec. 677; Barton v. Learned, 26 Vt. 192; Burgess v. Rice, 74 Cal. 590 ; Thomas Davy v. Cameron, 14 U. C. Q. B. 483. V. Young, 79 Conn. 493, 65 Atl. 955; The rule of preclusion has also Arnold V. Woodard, 4 Colo. 249; been applied in trespass to try title. Vallette v. Bilinski, 68 III. App. 361; Thomson v. Peake, 7 Rich. I^aw (S. Millhollin v. Jones, 7 Ind. 715; C.) 353; Tyler v. Davis, 61 Tex. 674. Longfellow v. Longfellow, 61 Me. The lessee is obviously not es- 590; Griffin v. Sheffield, 38 Miss, topped to assert that his leasehold 359, 77 Am. Dec. 646; Hamill v. interest has not yet expired. Smoot Jalonick, 3 Okl. 223, 41 Pac. 139; v. Marshall, 2 Leigh (Va.) 134. Cooper v. Smith, 8 Watts (Pa.) 536; 2132 Smith's Leading Cases (8th Thompson v. Graham, 9 Phila. (Pa.) Am. Bd.) 902, notes to Duchess of 53; Ayotte v. Johnson, 25 R. Kingston's case. 438 PRECLUSION TO DENY TITLE. § 78 him for the possession. It may happen, however, that, after tak- ing a lease, the lessee repudiates it, before entry, and then en- ters under one who had a title paramount to that of the lessor. It seems that, if he acquired the possession from such paramount owner and not from the first lessor, he might, in an action for possession by the latter, deny his title, since he did not procure the possession by an implied admission of that title.^^* Like- wise, though the question whether the tenant can relieve himself from the estoppel by relinquishing possession is not likely to arise in an action by the landlord for possession, since such an action is useless if the tenant has already given the landlord possession, it is possible that the tenant might, before the end of the term, relinquish possession for a time and so notify the landlord, and, on failure of the latter to resume the possession within a rea- sonable time, again enter on the premises during the term and refuse to give up possession when demanded by the landlord after the term. In such a case it would seem that if the tenant's second entry is under claim of right, the possession cannot well be regarded as obtained from the landlord, and the principle of estoppel would no longer be applicable. Since the estoppel is based on the theory that, by entering un- der the lease, the lessee admits the lessor's title, the estoppel does not operate if the terms of the letting were such as to exclude the implication of such an admission. So it was held that where, at the time of the making of the lease, it was agreed between the lessor and lessee that the dispute then existing between them as to title should be settled by an amicable action, the lessee could dispute the lessor's title,2i5 and where plaintiff, whose title had been attacked, permitted the defendant to occupy the premises under an agreement to sell to the latter in case his title turned out to be good, the defendant was allowed, in an action against him for possession, to deny the title of the plaintiff under whom he so entered.2^^ And one who, in order to avoid being turned 21* In Nerliooth v. Althouse, 8 into possession under a land war- Watts (Pa.) 427, 34 Am. Dec. 480, It rant, could, in an action of eject- was decided that one who, after ment by his vendor, deny the lat- contracting to purchase land, noti- ter's title. fied his vendor that he would not zis City of Philadelphia v. Schuyl- go into possession under the con- kill Bridge Co., 4 Bin. (Pa.) 283. tract, and did not do so, but went 2ieFrye v. Gragg, 35 Me. 29. § 78 IN PARTICULAR ACTIONS. 439 out of possession by her grantee, agreed to pay rent to him pend- ing a suit to set aside her conveyance, "without prejudice to her rights," was regarded as exempt from the rule of estoppel and entitled to assert her rights in such suit.^i^ (2) Summary proceedings. The considerations which render applicable the doctrine of estoppel in pais to preclude the tenant from asserting a superior title in another in defense to an action of ejectment apply as well in the case of the statutory proceed- ings by the landlord for the recovery of possession of the prem- ises, known in different jurisdictions as "summary proceedings," or proceedings in ' ' forcible " or " unlawful ' ' detainer.^i » In some jurisdictions the effect of this rule of estoppel is re-enforced by statutory provisions that no issue of title shall be raised in such proceedings.^!^ (3) Action for rent. At common law, as we have stated above,22o the lessee could defend an action for rent by showing that the seisin was in another, claiming adversely, except when the lease was by indenture, the effect of which was to estop him from so doing.221 At the present day, the cases are generally 217 Sartwell v. Young, 126 Mich. Wilson v. Lyons, 4 Neb. TJnofE. 406, 304, 85 N. W. 729. 94 N. W. 636; Pentz v. Kuester, 41 218 Anderson v. Anderson, 104 Ala. Mo. 447; Heyer v. Beatty, 76 N. C. 428, 16 So. 14; King v. Boiling, 77 28; Dilks v. Kelsey (N. J. Law) 59 Ala. 594; Hershey v. Clark, 27 Ark. Atl. 897; Emerick v. Tavener, 9 527; Peterson v. Kinkead, 92 Cal. Grat. (Va.) 220, 53 Am. Dec. 217; 372, 28 Pac. 568; Eckles v. Booco, 11 First English E. L. Church v. Arkle, Colo. 522, 19 Pac. 465; Houck v. 49 W. Va. 92, 38 S. B. 486; Smith v. Williams, 34 Colo. 138, 81 Pac. 800; Hardwick, 28 Ky. Law Rep. 615, 89 McLean v. Spratt, 20 Pla. 515; Grlz- S. W. 731; Turner v. Gilliland (Ind. zard V. Roberts, 110 Ga. 41, 35 S. E. T.) 76 S. W. 253; McFarlane v. 291; Knefel v. Daly, 91 111. App. 321; Kirby, 28 App. D. C. 391; Chambers Fry V. Bowman, 67 Kan. 531, 73 Pac. v. Irish, 132 Iowa, 319, 109 N. W. 61; Gage v. Campbell, 131 Mass. 566; 787; Gies v. Storz Brew. Co., 75 Neb. Oakes v. Munroe, 62 Mass. (8 Cush.) 698, 106 N. W. 775; Ellis v. Fitzr 282; Granger v. Parker, 137 Mass. patrick, 55 C. C. A. 260, 118 Fed. 228; Settle V. Henson, Morris (Iowa) 430; Washington v. Moore, 84 Ark. Ill; Newman v. Mackin, 21 Miss. 220, 105 S. W. 253, 120 Am. St. Rep. (13 Smedes & M.) 383; Harrison 29. V. Marshall, 7 Ky. (4 Bibb) 524; Peo- 219 See post, § 277, at notes 393- ple V. Kelsey, 14 Abb. Pr. (N. Y.) 397. 372, 38 Barb. 269; Falkner v. Beers, 220 See ante, § 78 a. 2 Doug. (Mich.) 117; Hoffman v. 221 For modern cases of estoppel Clark, 63 Mich. 175, 29 N. W. 695; by indenture, see Parker v. Man- 440 PRECLUSION TO DENY TITLE. § 7g to the effect that if the possession is in a third person claiming by title paramount, the lessee may assert this in defense to the action for vent,^^ and in some jurisdictions he may assert in defense to such action that the possession is in a third person who has no right thereto.^^s Regarding "seisin" and "possession" as synonymous, which they are, for most purposes,-^* the mod- ern rule, except, in some states, as regards possession by a wrong- doer, seems to be tantamount to the old rule, with the addition perhaps that now the fact that the lease is under seal does not preclude the lessee from showing an adverse possession, as it did at common law. That is, while formerly, if one took a lease by indenture, he was bound for the rent even though the lessor, hav- ing no possession, could not give him possession, the present rule is possibly different. In the modern cases deciding that such ad- verse possession in another is a defense to the claim for rent, there is no suggestion that it would be otherwise were the lease by indenture. As we have previously undertaken to show, the old rule as to the right of the lessee, when the lease was not under seal, to plead that the lessor had nothing in the tenements, had no reference to the question whether the lessee could show that a third person had a right, either of entry or of action, which could be effec- tively asserted as against the lessor and those claiming under him. So far as appears from the cases, such a defense to an action for rent was never suggested in former times, but with the growth of the conception of ownership of land apart from seisin or possession, the attempt to assert such a defense has become by no means unusual, and it has frequently been decided to be inadmissible, the courts ordinarily stating this as merely one ap- plication of the asserted rule that the tenant is estopped to deny the lessor's title.^^s ning, 7 Term R. 537; Wilkins v. Q. B. Div. 658; Perkins v. Governor, Wingate, 6 Term R. 62; Cuthl)ert- Minor (Ala.) 352; Nolen t. Roy&ton, son v. Irving, 6 Hurl. & N. 135. 36 Ark. 56J; Lataillarde v. Santa 222 See post, § 182 a. Barbara Gas Co., 58 Cal. 4; Lyon v. 228 See post, § 182 b. Washburn, 3 Colo. 201; Palmer v. 23* See Prof. Maitland's article Melson, 76 Ga. 803; Pearce v. Pearce, "The Mystery of Seisin," 2 Law 83 111. App. 77; Mackin v. Haven, Quart. Rev. 481. 187 111. 480, 58 N. E. 448; LongfeHow 225 Partington v. Woodcock, 4 Law v. Longfellow, 54 Me. 240 ; Stagg v. J. K. B. 239; Cook v. Whellock, 24 Eureka Tanning & Currying Co., 56 § 78 IN PARTICULAR ACTIONS. 441 While, as observed above, the preclusion of the tenant to deny his landlord's title in an action of ejectment is properly termed "estoppel," it is difficult to see the applicability of such a term in connection -with an action for rent. The reason that the lessee, or the latter 's assignee, cannot attack the landlord's title in an action on a contract to pay rent is, it is submitted, merely that the law does not recognize a lack of title in the lessor, not result- ing in any interference with possession under the lease, as a ground for the repudiation of the contract.^^s if this exclusion Mo. 317; Morrison v.Bassett, 26 Minn, merely says that tliis was not a 235, 2 N. W. 851; Mosher v. Cole, 50 denial of the landlord's title, and Neb. 636, 70 N. W. 275; Allen v. Hall, gives no intelligible explanation of 64 Neb. 256, 89 N. W. 803; Hatch v. its position. Bullock, 57 N. H. 15; Prevot v. Law- In Beck v. Minnesota & Western rence, 51 N. Y. 219; Bigler v. Fur- Grain Co., 131 Iowa, 62, 107 N. W. man, 58 Barb. (N. Y.) 545; George 1032, it Is said that since the local A. Fuller Co. v. Manhattan Const, statute provides that a considera- Oo., 88 N. Y. Supp. 1049; Hamer v. tion is implied from the fact that a MeCaU, 121 N. C. 196, 28 S. E. 297; contract is in writing, a tenant under Shell V. "West, 130 N. C. 171, 41 S. a written lease cannot assert in de- E. 65; Nearing v. Coop, 6 N. D. 345, fense to a claim for rent a lack of 70 N. W. 1044; Howard v. Murphy, consideration arising from the les- 23 Pa. 173; Mineral R. & Min. Co. v. sor's want of title. In reference to Flaherty, 24 Pa. Super. Ct. 236; Wil- this it may be said that the making llams V. Wait, 2 S. D. 210, 49 N. W. of the lease constitutes a considera- 209, 39 Am. St. Rep. 768; Moffatt v. tion for the promise to pay rent. Sydnor, 13 Tex. 628; Lyles v. Mur- The implication that apart from phy, 38 Tex. 75; Tryon v. Davis, 8 such a statute, or in the case of an Wash. 106. oral lease, the tenant could assert So the tenant cannot assert in de- the lessor's lack of title in defense fense to an action for rent by joint to rent, is obviously not in accord lessors that one of them had no title, with the authorities. Moore v. Gair, 108 App. Div. 23, 95 220 This view is explicitly stated N. Y. Supp. 475. in Long v. Douglass, 59 Tenn. (12 In Borland v. Box, 62 Ala. 87, a Heisk.) 147, it being there said that, lessee was allowed, in an action for in an action against a tenant for rent, to show that plaintiffs, who had breach of his contract to pay rent leased the land to him as being by making certain improvements, he school lands belonging to the town- cannot defend by showing that the ship of which they were trustees, title was not in plaintiff, not for were not entitled to the rent because the reason that he is estopped to the land belonged to another town- deny the latter's title, but because ship at the time of the lease, the the question of such title is not re'e- trustees of which latter township vant. Somewhat similarly it Is also claimed the rent. The court stated, in Cross v. Freeman, 22 Tex. 442 PRECLUSION TO DENY TITLE. § 78 of an inadmissible defense to an action for rent is to be expressed in terms of estoppel, so might, it seems, any inadmissible defense to an action to enforce any obligation. In the case of the com- mon-law action of debt for rent, the lessee 's liability is not based upon a contract but upon the reservation of rent,^^'^ and the ac- tion is proprietary in character; but in the case of such action, as in that of an action on the contract to pay rent, the reason that the lessee can not defend by showing that there is an out- standing paramount title is not, it is conceived, because he is "estopped" to do so, but the reason is rather that the law does not recognize such a defense to an action by the lessor to recover what, by the terms of the lease, belong to him. The exclusion of this defense in an action for rent is, it may be remarked, quite analogous to the exclusion of a like defense in an action for the purchase money of property conveyed in fee simple, but such a defense in the latter case is, ordinarily at least, not referred to as a case of estoppel. An estoppel in pais is necessarily based on some act on the part of the person estopped (or of one in privity with him), and the only acts on the part of the tenant on which the estoppel could possibly be based, for the purposes of an action for rent, are the execution or acceptance of the lease, his acceptance of an assign- ment thereof, or his entry into possession. To say that the lessee (or his assignee) is estopped by his execution or acceptance of the lease (or by his acceptance of the assignment thereof) is an involved, and indeed incorrect, mode of stating that, as a party thereto, he is bound by the contract for the payment of rent, or by his consent to the reservation of rent. On the other hand, to say that he is estopped in this regard by his acquisition of posses- sion is, it is submitted, incorrect for the reason that he has no right to make such a defense even though he does not go into possession.228 If it be said that he is estopped by his acquisi- tion, not of the actual possession, but of the right of possession, this is equivalent merely to a statement that he is estopped by Civ. App. 299, 54 S. W. 246, that a without using the word "estoppel," person competent to contract may it is said the defendant cannot raise bind himself to pay rent for the use the issue of title in an action for of property to which the lessor has rent, no eviction being claimed, no title or right. And in Hill v. 227 See post, § 171, at notes 122-125. Williams, 41 S. C. 134, 19 S. E. 290, 228 See post, at notes 231-236 b. § 78 IN PARTICULAR ACTIONS. 443 reason of his having become a party to the lease, which means that he is bound by the provisions thereof -with reference to the terms of the letting, including that as to the payment of rent. The inability of the lessee or his assignee to assert the lessor's lack of title is, it is conceived, entirely independent of the doc- trine of estoppel, and is, the result merely of the fact that the stipulation for the payment of rent is absolute in teirms and con- tains no exception in his favor in case the lessor's title is defec- tive. If it did contain such an exception, he would, it can hardly be doubted, have a right to assert this in defense to rent,229 a consideration which tends strongly to support the view that his preclusion otherwise to assert it is the result of the stipulation into which he has entered and not of the doctrine of estoppel. Another consideration of the same character is that the lessee can show that his acceptance of the lease and assent to the stipu- lation for rent were procured by representations as to the les- sor's title, and that these representations were untrue. ^^^ The exclusion of this defense in an action of ejectment is evi- dently based on the fact that the lessee has acquired possession from the lessor. In the action for the rent the lessee's acquisi- tion of actual possession seems properly to have no bearing on the admissibility of the defense. As has been remarked judici- ally ,^31 "there would not be much appearance of justice in holding that where one has taken a written lease of premises and agreed to pay the rent, but has not thought proper to avail himself of the right he had thus contracted for by going into possession, when he might have done so without hinderance from any one, he can defend against his engagement by showing that there was a defect in the lessor 's title, ' ' and there are decisions apparently in accord with this statement,^^^ though there are other decisions^^^ 229 In Wood V. Chambers, 3 Rich. 232 Jackson v. Whedon, 1 B. D. Law (S. C.) 150, it was held that the Smith (N. Y.) 141; Bigler v. Fur- defendant could show that the lessor man, 58 Barb. (N. Y.) 545; Howard agreed not to claim rent if his title v. Murphy, 23 Pa. 173. In Outtoun turned out to be defective, and that v. Dulin, 72 Md. 536, 20 Atl. 134, it it did so turn out. And see ante, at was held that it was no defense to notes 215-217. an action for rent that the lessor did 230 See Finch v. Causey, 107 Va. not have title to part of the prem- 124, 57 S. E. 562. ises described in the lease and that 231 Per Denio, C. J., in Vernam v. the lessee did not enter thereon. Smith, 15 N. Y. 327. zssAndriot v. Lawrence, 33 Barb. 444 PRECLUSION TO DENY TITLE. | 78 as well as occasional dicta^^* apparently opposed thereto. Occa- sionally it is said that the lessee, "having taken possession under the lease," cannot defend against the claim for rent on account of defects in the lessor's title without, however, any direct state- ment that if he did not choose to take possession he could make such defense. 2*5 This statement may perhaps have reference to the decisions, hereafter referred to,^® that the lessee may refuse to pay rent if prevented from obtaining possession by one hav- ing paramount title. If the view is adopted that the lessee's pre- (N. Y.) 142; District of Columbia V. May v. Trye, Freem. 447, merely Johnson, 12 D. C. (1 Mackey) 51. contains a dictum that if a lease is And Hawkins v. Collier, 101 Ga. 145, void, no action lies on a covenant 28 S. E. 632, is perhaps to the same therein; and Jevens v. Harrldge, 1 effect Wms. Saund. 6, 2 Keh. 102 (s. c. 1 In Wright v. Graves, 80 Ala. 416, Sid. 308), Is a decision to the same it is decided that a sublessee who effect (ante, § 54, note 66). Port- has not entered into possession may more v. Bunn, 1 Bam. & C. 694, 3 show, as against an action on his Dowl. & R. 145, also cited in support covenant by the sublessor, that the of the statement, is stated elsewhere latter was merely a tenant at will, (post, § 160, note 505). Of the Amer- and consequently without power to ican cases referred to by Mr. Taylor, make the lease, quoting the state- Field v. Herrick, 14 111. App. (14 ment in Taylor, Landl. & Ten. § 384, Bradw.) 181, was a case in which the that "rent being an equivalent for an owner of the paramount title ex- interest enjoyed, a covenant for its eluded the lessee from possession, payment cannot be enforced . if no Milliken v. Thorndike, 103 Mass. 382, estate passed under the lease and involved merely the question of the tenant has not occupied the fraud on the part of the lessor in premises, since there is no legal inducing the lessee to sign the lease, consideration for the engagement.'' Smith v. Newcastle, 48 N. H. 70; Of the English cases cited by Mr. Learned v. Ryder, 61 Barb. (N. Y.) Taylor in support of this propo- 552, and Cleves v. Willoughby, 7 Hill sition, Frontin v. Small, 2 Ld. Raym. (N. Y.) 83, likewise involve ques- 1418, decided that one who had a tions of an entirely different nature, power of attorney from the owner and they furnish no support for the to execute a lease could not, after statement quoted, (erroneously) executing it in his 234, Smith v. Scott, 6 C. B. (N. S.) own name, sue on the covenant to 771, 781, per Willes, J.; Trustees of pay rent to the owner. (Ante, note Green Tp. v. Robinson, "Wright 190.) In Knipe v. Palmer, 2 Wils. (Ohio) 436. 130, the lessee did take possession =25 See Cressler v. Williams, 80 (Ante, note 179). Aylet v. Wil- Ind. 366; Ankeny v. Pierce, 1 111. Hams, 3 Lev. 193, involved merely (Breese) 262; Oliver v. Gary, 42 the sufficiency of the replication to Kan. 623, 22 Pac. 733. the plea of nil habuit in tenementis. =36 gee post, § 182 a (1). § 78 IN PARTICULAR ACTIONS. 445 elusion to deny the lessor's title is to commence only on the lat- ter 's taking of possession, it would seem that it should end im- mediately on his relinquishment of possession, whether before or after the end of the agreed term, and as regards rent already accrued at the time of such relinquishment as well as that still to accrue. But there are, it seems, no decisions or even dicta to the effect that the tenant may deny the lessor's title upon relin- quishing possession. Such an assertion cannot well be regarded as involved in the statement, sometimes made in connection with actions other than for rent, that the estoppel terminates with the relinquishment of possession.^ss^ That the exclusion of this de- fense is entirely independent of the question of possession would seem to be involved in occasional decisions that lack of title in the lessor of an incorporeal thing, such as a fishery, is no defense to an action for the agreed rent.^^^" There can, strictly speaking, be no possession of such a thing. (4) Action for use and occupation. The inability of the ten- ant, in an action for ufse and occupation, to question the land- lord's title was, as we have before seen, asserted quite early in the history of this action,^^^ and this view has been adhered to in the later cases, in some as an application of a general doctrine precluding the denial by the tenant of his landlord's title,238 and in others as a rule applicable to this particular action.^^" So far as concerns the action of indebitatus assumpsit based on the statute of 11 Geo. 2, c. 19, §• 14, the defendant's inability to question the landlord's title seems to be a result of the language 236a Zimmerman v. Marchland, 23 23s Fordyce v. Young, 39 Ark. 135; Ind. 474; Smith v. Mundy, 18 Ala. Moore v. Beasley, 3 Ohio, 294. 182, 52 Am. Dec. 221; Willson v. 230 Reynolds v. Lewis, 59 Cal. 20; Cleaveland, 30 Cal. 192. Codman v. Jenkins, 14 Mass. 93; 236b Inhabitants of Watertown v. Cohb v. Arnold, 49 Mass. (8 Mete.) White, 13 Mass. 477; Inhabitants of 398; Gray v. Johnson, 14 N. H. 414; Bastham v. Anderson, 119 Mass. 526. Vernam v. Smith, 15 N. Y. 327; The case of Portmore v. Bunn, 1 Steen v. Wadsworth, 17 Vt. 297. Barn. & C. 694, 3 Dowl. & R. 145, is The expressions "estop," or "estopp- not, it is conceived, to be regarded as el," are not used in any of these de- involving a contrary view. (See cisions. In City of New London v. post, i 160, note 505). The opinions Emerson, 2 Root (Conn.) 372, it is in the case are, however, obscure. decided that lack of title in the land- 23T See ante, § 78 a, note 203. lord is a defense to such an action. 446 PRECLUSION TO DENY TITLE. § 78 of the statute itself,^^* and when the validity of the action of debt for use and occupation became fully recognized,^*! it was held that this action, being similar in character to the action of as- sumpsit, was subject to the same rule in this regard.^*^ Apart from any statute, however, the very nature of an action for use and occupation would seem to exclude a defense of lack of title in the plaintiff, it being based on a promise, expressed or implied in fact, to pay to the latter the value of the use and occupation of the premises, possession of which was given him by the plain- tiff. If he actually obtains that for which he promised to pay, the fact that the plaintiff had no right to give it to him is no reason for the repudiation of his contract.^*^ This is presumably the ground on which such a defense was excluded, before the statute, in an action of special assumpsit for use and occupa- tion.2" (5) Action arising from distress. In replevin for goods dis- trained, as before stated, the language of the statute of 11 Geo. 2, c. 19, § 22, was held to preclude the plea of nil habuit in tene- mentis to the avowry .^^b In this country there are several decis- ions to the effect that, in proceedings based on a distress, the per- son in possession as tenant cannot question the landlord's title, this view being stated as an application of the general rule that the tenant is precluded from disputing his landlord's title.^** These decisions, however, all involved, it seems, cases in which 240 See ante, § 78 a. In Dolby v. 242 Curtis v. Spitty, 1 Bing. N. C. lies, 11 Adol. & E. 335, Denman, C. 15. J., said that he was of opinion that 243 "The action of assumpsit for the tenn "landlord" in the statute use and oocupation depends not on "meant the person whom the defend- the validity of the plaintiff's title, ant has treated as the landlord," and but on the contract between the par- in reply to the assertion of counsel ties, which may be either expressed that the term "landlord" must mean or implied." Hubbard, J., in Cobb the person having the legal estate, v. Arnold, 49 Mass. (8 Mete.) 398. Coleridge, J., said that "that cannot 2*4 Richard v. Holditch, referred be the only meaning; otherwise no to in Lewis v. Willis, 1 Wils. 314. one who has not the legal estate See ante, note 205. could bring an action for use and 245 Syllivan v. Stradling, 2 Wils. occupation." The decision was ren- 208. dered in favor of the defendant 246 Giles v. Ebsworth, 10 Md. 333; without any further expression of Ward v. City of Philadelphia, 18 opinion. Wkly. Notes Cas. (Pa.) 561; Alwood 241 See post, § 317. v. Mansfield, 33 111. 452. § 78 IN PARTICULAR ACTIONS. 447 the lessor was holding the premises under claim of right, and adversely to the true owner, and consequently he had an estate in fee simple by wrong.247 in gugh a case, apart from any stat- ute or any general rule of estoppel or preclusion, on the making of a lease by the disseisor, a reversion would exist in him suffi- cient to support the right of distress.^^s If the land is, at the time of the lease, in the adverse possession of another than the lessor, the question of the latter 's title would not be likely to arise in connection with distress proceedings, since the lessee would not have possession and, furthermore, in most jurisdictions, would not be liable for any rent.^*^ Apart from cases governed by the English statute above re- ferred to or by some state statute bearing on the subject, those in which the lessor can be regarded as having a fee simple by wrong, and perhaps those in v/hieh, the lease being by indenture, an estoppel "by deed" may be asserted, it is difficult to see why one who enters under a conveyance from another, even though it be in terms a lease, should be precluded from asserting that the grantor has no estate and that he has consequently no right of distress. It appears to be agreed that an asserted tenant may show that there is no right of distress in one claiming as land- lord for the reason that the latter has no greater estate than that conveyed by him, that is, that there was an assignment and not a lease by him,^^'' and so it seems that the asserted tenant should be allowed, except in the cases above mentioned, to show that there is no right of distress for the reason that the person claim- ing as landlord has no estate whatever. It has, however, been decided in two recent English cases that if one in possession of land attorned to a person having no title to the land, the latter had a reversion "by estoppel" which would support a distress. Since an attornment is, in legal effect, no more than the acceptance of a lease, these cases would seem opposed to the suggestions above made. They are hereafter discussed at some length.^si (6) Miscellaneous classes of actions. The asserted general rule that the tenant is estopped or precluded to deny the land- lord's title has been applied in some classes of actions other than 2« See ante, 78 a. ^f^" See post, § 151, at note 33. 248 See post, § 151. 251 See post, § 78 k (3). 2«See post, § 182 a (2) (3). 448 PRECLUSION TO DENY TITLE. § 78 those above mentioned. It has been applied in an action of trover against the tenant by the landlord for wood252 gr manure^^s wrongfully carried away from the premises by the tenant. In such case the tenant having obtained possession of the wood or manure, as of the land itself, by an implied admission that it be- longs to the landlord, cannot convert it and then repudiate lia- bility on the ground that the lessor has no title thereto. This is merely an application of the doctrine of estoppel in pais, simi- lar to that involved in connection with an action of ejectment. And the same doctrine is properly applicable in favor of a land- lord seeking an injunction against waste.^^* Having procured possession of the land by admitting it to belong to the lessor, the tenant cannot contend that the lessor is not the owner for the purpose of restraining its improper use by the tenant. And, likewise, a decision that if the lessor, at the end of the term created by the lease, ousted the lessee, the latter could not, in order to support an action of trespass on account of the ouster, show that the lessor had no title, ^^^ evidently involved an applica- tion of the same principle of estoppel, based upon the acquisi- tion of possession by means of an admission of the lessor's title. There are some classes of actions in which the asserted doctrine of the estoppel of a tenant to deny his landlord's title has been applied, where the propriety of its application would seem to be somewhat open to question. It has, for instance, been decided that a tenant cannot question the landlord's title by a proceed- ing to set aside a conveyance without first relinquishing posses- sion.256 So it has been decided that, without first relinquishing possession, the tenant cannot bring a proceeding for partition against the landlord,^^^ ©r a proceeding for the specific per- formance of a contract of sale made by the lessor before the 252 Brooks V. Rogers, 101 Ala. Ill, 55 N. E. 373; Van Cleave v. Wilson, 13 So. 386. So in the case of an 73 Ala. 387; Harvin v. Blackman, action for removal of a house. Ren- ix2 La. 24^ 36 So. 213. aids V. Offitt, 15 U. C. Q. B. 221. 257 Barlow v. Dahm, 97 Ala. 414. 253 Piumer v. Plumer, 30 N. H. 558. 12 So. 293, 38 Am. St. Rep. 192; 254 Parker v. Raymond, 14 Mo. 535. Fleming v. Mills, 182 111. 464, 55 N. 255De]aney v. Fox, 2 C. B. (N. S.) e. 373; Henning v. Warner, 109 N. 768. C. 406, 14 S. E. 317 (semble). 256 Fleming v. Mills, 182 111. 464, § 78 IN PARTICULAR ACTIONS. 449 lease,258 to redeem from a tax sale,^^^ or to enforce a trust.^"" In any of such classes of actions, apparently, the right of the landlord as regards the rent for the residue of the term could be secured by an appropriate provision in the decree, and, this being done, he could suffer no injury from the fact that the proceeding is instituted before instead of after the expiration of the tenancy. In all these cases the question arises, if the tenant is estopped to deny his landlord's title, on what act of the tenant is the es- toppel based. It cannot well be based on his acquisition of possession, since the fact that he is in possession does not in any way prejudice the landlord's defense to the suit, it being indeed immaterial, for the purpose of a suit not necessarily involving the immediate possession, who happen to be in possession of the prem- ises at the time of its commencement. And the fact that he has accepted or executed the lease, however this may operate to pre- clude him from denying the lessor's title in defense to an action by the landlord, as landlord, should not, it seems, preclude him from asserting, by a proceeding of an equitable character, a right to an estate in the land to vest in possession after the expiration of the tenancy. There is at least one decision to the effect that the tenant can- not question the landlord's title by means of a suit against the latter to quiet title.^si So far as possession is, in the particu- lar jurisdiction, regarded as a prerequisite to the maintenance of such a suit, and it is further considered that possession ac- quirtd by unfair means merely for the purpose of filing the bill is insufficient for the purpose,2«i^ the tenant's right to maintain 258 Davis V. "Williams, 130 Ala. 530, In Wadge v. Kittleson, 12 N. D. 452, 30 So. 488, 54 L. R. A. 749, 89 Am. 97 N. W. 856, It was decided that the St. Rep. 55. And see McWhorter v. lessee was estopped to claim the Stein (Ala.) 39 So. 617. ownership of land in a suit by him 258 Stout V. Merrill, 35 Iowa, 47. against the lessor to quiet title, but In Whitaker v. Whi taker (Tenn.) the estoppel was based on various 62 S. W. 664, it is said that a bill of transactions between the parties interpleader will not lie in favor of other than the lease, and it is not a tenant against his landlord, since suggested that he was estopped be- lt involves a dispute of his landlord's cause he was lessee, title. 2eia 2 Pomeroy, Equitable Reme- 260 Courvoirsier v. Bouvier, 3 Neb. dis, § 737. It has been stated that 55. the lessee cannot use the possession 261 Ryerson v. Eldred, 18 Mich. 12. acquired under the lease as a basis L. and Ten. 29. . .i 450 PRECLUSION TO DENY TITLE. § 78 such a suit would obviously be considerably restricted. But, apart from such requirement of a fair and rightful possession, there seems no particular reason for denying to a tenant the privilege of having the title to the premises settled during the tenancy. As regards actions by the lessor for breach of a covenant, other than that for rent, the tenant's inability to assert in de- fense the lessor's lack of title arises from the same consider- ation as applies in the case of an action for rent, that he should perform his contract even though the lessor's title is imperfect, and, it is conceived, the doctrine of estoppel has no application.^^i'' In a suit by the tenant against the landlord for breach of a covenant for title, the former can, it is evident, deny the lessor's title, the suit being indeed based on such denial. A suit by him to rescind the lease for misrepresentations as to title can likewise, it is evident, succeed only upon proof of lack of title. (7) Action by or against stranger. There is no rule which precludes the tenant, in a controversy between the landlord and a third person, in which the tenant has no interest, from giving evidence adverse to the landlord's title.^'^z And so, as against. a stranger, a tenant may assert title in himself.^^s d. Evidence as to title. The fact that the lessor's lack of title appears on the face of the instrument of lease has been held not to affect the general rule or rules precluding the tenant from showing such lack of title in defense to an action for rent^^* or for possession.205 And the same view has been applied in pro- ceedings arising from a distress.^*® That the language of the lease thus shows knowledge on the part of both lessor and lessee of the defective state of the former's title is evidently no reason for excusing the lessee from his obligation to relinquish posses- for a proceeding against the lessor 262 Bartley v. McKlnney, 28 Grat. to quiet title. Engle v. Tennis Coal (Va.) 750; South v. Deaton, 24 Ky. Co., 30 Ky. Law Rep. 1269, 101 S. W. Law Rep. 196, 68 S. W. 137. 309. 2«3 Cole V. Maxfield, 13 Minn, 235 2eibin Griffing Bros. Co. v. Win- (Gil. 220); Thomas v. Young, 79 field, 53 Fla. 589, 43 So. 687, the de- Conn. 493, 65 Atl. 955. fendant's inability to assert the 254 Duke v. Ashby, 7 Hurl. & N. plaintifE's lack of title in an action 600. See Bohn v. Hatch, 39 N. Y. for breach of a covenant to care for St. Rep. 404, 15 N. Y. Supp. 550. trees on the premises was in terms 265 Tilyou v. Reynolds, 108 N. Y. based on the general rule of preclu- 558, 15 N. B. 534. sion of the tenant to deny the land- 2«s See' post, notes 399, 400. lord's title. § 78 THE DOCTRINE IN EQUITY. 451 sion at the end of the term to the lessor from whom he obtained it, and to pay rent in accordance with the obligation assumed by him. And so far as in any other class of action there may be room for the application of the principle of estoppel in pais, that the defect of title appears on the face of the instrument would seem clearly immaterial. That the lessee actually knows, at the time of the lease, of the weakness of the lessor's title, would seem to constitute a reason for enforcing with even addi- tional strictness, as against him or those claiming under him, any obligations assumed by him under the lease, or imposed on him, in connection therewith, by operation of law. The a'pplicability of the rule of preclusion is not affected by the fact that the defective character of his title appears from the lessor's evidence^*'^ or from his admissions.^^s It is obvious that the fact that the defendant, in any of the various actions named, is precluded, when he stands in the posi- tion of tenant to the plaintiff, from questioning the lessor's title, has the necessary result of dispensing with any proof of title in the lessor in order to support the action.*^^ It is obvious that the fact that the defendant, in any of the deny the lessor's title applies to the same extent in equity as at law.2''*' And the tenant cannot avoid the effect of the estoppel by bringing a proceeding in equity to restrain the action by the landlord.271 Were the rule otherwise, so that the tenant, by going into equity, could, on the ground that another had a para- mount title, restrain the landlord from maintaining an action against him at law, it is evident that the rule or rules in question 287 Gray v. Johnson, 14 N. H. 414; lett v. Robinson, 52 Neb. 715, 72 N. Dolby V. lies, 11 Adol. & E. 335; W. 1053; Thompson v. Graham, 9 Cooper V. Blandy, 1 Bing. N. C. 45. Phila. (Pa.) 53; Congregational Soc. 268 Francis v. Harvey, 4 Mees. & v. Walker, 18 Vt. fiOO; Browne v. W. 331. Haseltine, 9 S. D. 524, 70 N. W. 648; It is immaterial that the lessor Stover v. Davis, 57 'V. va. 196, 49 said, when making the lease, that S E. 1023. the property belonged to some per- "» Peyton v. Stith, 30 U. S. (5 sou unknown. Baldwin v. Poster, Pet.) 485; Daivs v. Williams, 130 21 U. C. Q. B. 152. Ala. 530, 30 So. 488, 54 L. R. A. 2e'-Mattox v. Helm, 13 Ky. (5 749, 89 Am. St. Rep. 55; Betts v. Litt.) 185, 15 Am. Dec. 04; Crossler Wurth, 32 N. J. Eq. (5 Stew.) 82. V. Williams, 80 Ind. 366; Kiernan v. 271 Jordan v. Katz, 89 Va. 628, 16 Terry, 26 Or. 494, 38 Pac. 671; Bart- S. E. 866; Homan v. Moore, 4 Price, 452 PRECLUSION TO DENY TITLE. § yg would be practically nugatory. In North Carolina, however, it appears to be assumed that in equity the tenant may assert rights in himself to the premises which, apart from statute, he could not assert at law.^^^ f. Existence of relation of tenancy. There are occasional and somewhat obscure intimations that the preclusion of the tenant to deny the landlord's title exists only when the "conven- tional relation" of landlord and tenant exists,^^^ meaning by this, apparently, such a relation resulting from agreement. As the creation of the relation of landlord and tenant otherwise than as a result of agreement is approximately impossible,^''* it seems unnecessary to consider the matter from this point of view. The rule which precludes the tenant from retaining possession by showing defects in the lessor's title, or a rule analogous there- to, has been applied as against one who, having a contract for the purchase of land, entered into possession by his vendor 's per- mission. ^"^ Whether he is properly a tenant of the vendor is, 5 (injunction against distress.) ; of estoppel, and could, by taking a Bolin V. Hatcli, 39 N. Y. St. Rep. 404, lease from another, give such other 15 N. Y. Supp. 550. adverse possession as against his 272 See post, § 78 1 (2), at notes grantee. The question really in- 350-352. volved in this case was not whether 273 See Jackson v. Harsen, 7 Cow. the maker of the trust deed, assum- (N. Y.) 323, 17 Am. Dec. 517; Sands ing that he was a tenant, was pre- V. Hughes, 53 N. Y. 287. Tiese eluded from denying the landlord's cases actually involved the question title, but whether he could, by at- of adverse possession, and it is not torning to another, give the latte'" entirely clear that the opinions in- adverse possession. The question of tended any reference to the doctrine "estoppel" seems to have no bearing here under discussion, though the upon this point. latter case is cited as bearing on 2-4 gee ante, § 17. that question in Hoffman v. Hoff- 2-5 Bigelow, Estoppel (5th Ed.) man, 44 N. Y. St. Rep. 660, IS N. Y. 547; Heermans v. Schmaltz, 7 Fed. Supp. 387. 566; Hill v. Winn, 60 Ga. 337; Og- In Vance's Heirs v. Johnson, 29 den v. Walker's Heirs, 36 Ky. (6 Tenn. (10 Humph.) 214, that the rule Dana) 420; Kirk v. Taylor, 47 Ky. of estoppel applies only to the "con- (8 B. Mon.) 262; Jackson v. Hotch^ ventional" relation of landlord and kiss, 6 Cow. (N. Y.) 401; Pyles v. tenant is asserted, and It is there de- Reeve, 4 Rich. Law (S. C.) 555; cided that, conceding that one mak- Dowd v. Gilchrist, 46 N. C. (1 Jones ing a deed of trust to secure debts Law) 353; Wolf v. Hqlton, 104 Mich, was a tenant of the grantee therein, 107, .62 N. W. 174; Baumgarten v. so long as the grantor retained pos- Smith, 37 Tex. 439. The applica- session, he was not within the rule bility of the rule may, it has been § 78 EXISTENCE OF RELATION OF TENANCY. 453 as has been before shown,2T6 a question on which the authorities are not in accord. A similar rule applies when one enters into land, not as ten- ant, but under a license merely from the person previously in possession, as, for instance, in the capacity of a lodger or servant, and he cannot refuse to relinquish possession to his licensor on the ground that the latter has no title to the land,^" nor can he, it has been held, defend an action for injury to the land on that ground.""* Likewise, there are cases to the effect that where a hus- band, or one claiming under him, obtained possession of property of which the wife was seised in fee, by reason of his legal life estate in his wife's freehold property, he was, by a rule analogous to that which operates between landlord and tenant, precluded from questioning the title of the wife.^'^s And it has been held decided, be altered by fraud on the by the owner . This decision Is part of the vendor. Hammers v. based on the statement In Sands v. Hanrick, 69 Tex. 412, 7 S. W. 345. Hughes, 53 N. Y. 287, that the estop- In James v. Patterson, 31 Tenn. pel exists only when the "conven- (1 Swan) 312, 55 Am. Dec. 737; Gud- tional relation of landlord and tcn- ger V. Barnes, 51 Tenn. (4 Helsk.) ant exists," by which is meant it 570; Baker v. Hale, 65 Tenn. (6 seems, merely that in order to ap- Baxt.) 46, it is said that the pur- ply the doctrine of es,toppel a.-s by- chaser in possession is not estopped tween landlord and tenant, the re- to question the vendor's title. The lation must have been the result of question actually involved in these agreement, which it almost invar- cases was, however, a different one, iably is (Ante, at note 273). The de- that of adverse possession. cision in Hoffman v. Hoffman, 44 276 See ante, § 43 a. N. Y. St. Rep. 660, 18 N. Y. Supp. 277 Doe d. Johnson v. Baytup, 3 387, was that the cultivator could Adol. & E. 188; Blgelow, Estoppel show title in himself in defense to (5th Ed.) 542. an action for possession, and this So a pastor let into possession of result corresponds with the English the church parsonage as part of hi^ rule that a tenant in possession may compensation could not refuse to re- so do. Post, § 78 i (2), at note 341. deliver possession on account of lack The reason given for the decision of title in the church. West Kush- is obviously insufficient. He could koning Congregation v. Ottesen, 80 not have defended on the ground Wis. 62. that a third person had better title. Hoffman v. Hoffman, 44 N. Y. St. 27s Dills v. Hampton, 92 N. C. 565. Rep. 660, 18 N. Y. Supp. 387, Is to 279 Morgan v. Larned, 51 Mass. (10 the effect that one entering land Mete.) 50; Griffin v. Sheffield, 38 under an agreement to work it on Miss. (9 George) 359, 77 Am. Dec. shares Is not estopped to assert his 640. In the latter case the decision own title in an action for possession is based on the theory that the gran- 454 PRECLUSION TO DENY TITLE. § 78 that one who has taken and held possession under a devise or settlement giving him an estate for life, or a person claiming under him, cannot retain possession as against the remainder- man.2so Such a case has been said to be "like that of a tenant coming in under a landlord; he is estopped from denying his landlord's title. "^^i What is practically the same principle has been applied in connection with personal chattels, for instance, as against a bailee or personal representative obtaining possession of the property for a limited period only.^s^ AH these cases in- volve the application of a general rule, applied likewise in an action by a landlord to recover possession, that one who has obtained possession by means of a promise, express or tacit, to relinquish possession after a certain time, cannot refuse so to do by asserting that a person other than the one from whom he acquired the possession was entitled thereto. Apart from cases of the character referred to, one is evidently not subject to any rule precluding a tenant from denying his landlord's title, if he is not the tenant of the person claiming as landlord, but is in possession in his own right, or as the tenant of another person, and he is always entitled to show that such is his possession.283 It has been decided that where one conveyed property to an- other and took a lease from his grantee, he could show, in de- fense to an action for rent, that the conveyance was for the pur- pose of security, and that the debt had been paid, the court say- ing that the rule precluding the tenant from denying his land- tee of the husband holding over after ms Wilborn v. Whitfield, 44 Ga. 51; the husband's death was a tenant Davis v. Delaware & H. Canal Co., at sufferance "of" the wife. This is, 109 N. Y. 47, 15 N. B. 873, 4 Am. St. it is submitted, erroneous. He was Rep. 418; Buell v. Cook, 4 Conn, not a tenant of the wife during the 238; Cbrrigan v. Riley, 26 N. J. Law husband's life, and he did not be- (2 Dutcli.) 79; Miller v. McBrier, 14 come so on the latter's death. See Serg. & R. (Pa.) 382; Cambridge ante, § 15 a, to the effect that a Lodge No. 9 v. Routh, 163 Ind. 1, 71 tenant at sufferance is not a tenant N. B. 148. So in an action for the "of" any one. possession of land, the defendant 280 Dalton v. Fitzgerald [1897] 1 was allowed to show that he did not Ch. 440; Id. [1897] 2 Ch. 86; Board enter under the plaintiff, bnt that V. Board, L. R. 9 Q. B. 48. he was forcibly placed there by an- 281 Blackburn, J., In the last cited other person, in removing him from case. neighboring land. Foust v. Trice, 2S2Bigelow, Estoppel, 548-554. 53 N. C. (8 Jones) 290. § 78 INVALIDITY OF THE LEASE. 465 lord's title should not be extended so as to deprive him of the right to show what the relation really was.^** Conceding the ad- missibility of equitable defenses in an action at law, there seems no question as to the correctness of the decision. The preclusion of the tenant to deny the landlord's title exists in the case of a tenancy at will to the same extent as in the case of any other tenancy.^ss g. Invalidity of the lease. The estoppel of one who has ob- tained possession under a lease from another to assert a defect in the lessor's title in defense to an action for possession would exist though the purported lease is defective in point of form or execution.288 The person so taking possession under another is the latter 's tenant, even though merely at will.^*'' And so the fact that the tenancy is merely at will because of the invalidity of the intended lease would not affect the estoppel of the tenant in connection with other classes of actions, for instance, actions for waste, or of trover for wood cut.^** And, likewise, in ac- tions arising from distress, the fact that the tenancy is, for the reason named, at will merely, cannot give the tenant a right to deny the lessor's title which he would not have in the case of a lease for years.^^® As regards the right to maintain an action for rent or for use and occupation, the question of the validity of the lessor's title is, as before stated,29o not a material eonsidera- 284 Smith y. Smith, 81 Tex. 45, 16 merely whether a lessee under a S. W. 637. lease of a homestead by the husband 2R5 Towne v. Butterfield, 97 Mass. without the wife's concurrence could 105; Gage v. Campbell, 131 Mass. set up adverse possession under the 566; Hammond v. Blue, 132 Ala. 337, lease against the wife. So Millett 31 So. 357; Den d. BufEerlow v. New- v. Lagomarsino (Cal.) 38 Pac. 308, son, 12 N. C. (1 Dev. Law) 208, 17 where the same statement is made. Am. Dec. 565; Kelley v. Kelley, 23 involved a question of adverse pos- Me. 192. An^ so it applies as session merely, against one entering under a con- asi See Ezelle v. Parker, 41 Miss, tract for a lease. Rose v. Davis, 11 520; Phillip's Lessee v. Robertson, Cal. 133; Doe d. Bailey v. Foster, 3 5 Tenn. (4 Hayw.) 154; Id., 6 Tenn. C. B. 215. (5 Hayw.) 101; Adams v. Martin, 286 Trustees of Caledonia County 8 Grat. (Va.) 107; Wood v. Doou- Grammar School v. Burt, 11 Vt. 632. thett, 44 Tex. 365. That one taking possession under 288 See ante, § 78 c (6). an invalid lease is estopped is stated "89 See ante, 78 c (5). in Mauldin v. Cox, 67 Cal. 387, 7 Pac. 290 See ante, § 78 c (3). 804, though there the question was 456 PRECLUSION TO DENY TITLE. § 7g tion, and the liability in this regard of one entering under a lease defective in form or execution is independent of whether the title of the intending lessor is or is not defective.^^i In regard to the right of a tenant to assert defects in the lessor 's title when the lease is made for an illegal purpose, the cases are not entirely clear. It has been decided that, in an action for possession at the expiration of the term, the defendant tenant can show that the lease was immediately preceded by a conveyance by him to the lessor, and that the whole transaction constituted in effect a mortgage at usurious interest.^^^ In another state it has been said that the fact that such a transaction is usurious would pre- vent the recovery of rent, but would be no defense to an action to recover the premises. ^^^ Presumably any difference in this latter regard arises from the peculiarities of the statutes as to usury in the different states. If the usurious transaction is en- tirely void, the tenant could assert his title as it existed before the transaction was entered into, while he could not do so if the usury affects merely the right to recover usurious interest in the form of rent. On an analogous principle, where the statute made it a criminal offense to establish a ferry without license, it was held that the lessee of a ferry franchise might show in defense to an action for rent that his lessor had no right to the franchise, it being said that "to allow the principle (of estoppel) to govern such a case would be to sacrifice a sound legislative policy to the pre- sumed allegiance which a tenant owes to his landlord. ' '^^^ But a lessee of land under the Mississippi river was not allowed to re- tain possession on the ground that the improvements made on the premises obstructed navigation, it being said that, if the pub- lic authorities take no steps to remove the alleged intruders, it is not for a private individual to assert the abstract rights of the public for the purpose of repudiating his own obliga^tions.^^^ 291 See Crawford v. JoneSi, 54 Ala. sor as being usurious. Reich v. 459. Cochran, 151 N. Y. 122, 45 N. E. 367, 292 People V. Hewlett, 76 N. Y. 37 L. R. A. 805, 56 Am. St. Rep. 607. 574 ( summary proceeding) ; Tribhle 293 Den d. King v. Murray, 28 N. V. Anderson, 63 Ga. 31 (ejectment). C. (6 Ired. Law) 62. A judgment in forcihle detainer 294 Milton v. Haden, 32 Ala. 30, 70 is conclusive for the purposes of a Am. Dec. 523. subsequent suit to cancel a lease and 295 St. Anthony Falls Water Power the previous conveyance to the les- § 78 INVALIDITY OF LEASE. 457 There are some eases in which the courts have refused to apply the generally accepted doctrine of the tenant's preclusion to deny the lessor's title on the ground that to do so would, under the circumstances, have the efl'ect of aiding in the breach of the public land law. These easss will be considered, firstly, as they involved actions by the landlord to recover possession, and sec- ondly, as they involved actions for rent. It has been considered that one who entered as tenant under a lease from another, who had filed his homestead entry on the • land, the lease being made as a cloak for the actual transaction, which was a sale of a homestead prior to the issue of a patent, in violation of law, the lessor could not, after receiving a patent, recover possession, the doctrine of the estoppel of a tenant not ap-. plying, since "the lease itself was a fraud upon the government, and was only executed as a pretext to carry out the arrangement ' ' for a sale.296 And where a legislative grant of land to an Indian expressly provided that he should not convey it except by lease for two years, he was held not to be estopped from disputing the title of one to whom he had been induced to convey the land, and from whom he then took a lease, in an action of ejectment by the latter.29' Likewise, it was decided in Pennsylvania that one who took a lease from a person claiming under a so-called "Con- necticut title," having subsequently procured a valid title under the state of Pennsylvania, could assert such title in defense to an action of ejectment by the lessor, such a "Connecticut title" be- ing regarded as absolutely invalid.^as In Texas it has been de- cided that in the case of a lease of state land by an individual having no interest therein, the lessee, having procured title there- to from the state, could assert it in defense to an action by the lessor for possession.^sa jyi,j jn another state it is intimated Co. V. Morrison, 12 Minn. 249 (Gil. 1 S. W. 559, where it was held that jg2) a purchaser from a squatter on pub- 29S McKlnnis v. Scottish American lie land who went Into possession as Mortg. Co.. 55 Kan. 259, 39 Pac. 1018. purchaser could deny the vendor's The opinion is obscure on the sub- title in an action for the purchase ject of estoppel. As a matter of money. fact the defendant bad a clear equity zst Smythe v. Henry, 41 Fed. 7*5. to the land, having paid for it and as* Satterlee v. Matthewson, 13 having made valuable improvements Serg. & R. (Pa.) 133. Ijy the inducement of plaintiff. See, "» Welder v. McComb. 10 Tex. Civ. also, Shorman v. Eakin, 47 Ark. 351, App. 85, 30 S. W. 822. Likewise, 458 PRECLUSION TO DEHSIY TITLE. § 7g that one taking a lease of public land from a mere "squatter" thereon might refuse to relinquish possession to the latter on the ground that he had thereafter himself obtained title from the government.**"' In all but the first of these cases, it will be ob- served, the decision goes no further, in effect, than to preclude a recovery by the landlord of the possession of the leased premises when they are the property of the tenant as having obtained the le- gal title or as having an equitable right thereto, and they might, it seems, be supported, without reference to any question of the pub- lie land laws, by the application of the English rule, a reasonable • one, it is conceived,^*'! that the tenant may, in an action by the landlord for possession, assert a right of possession in himself instead of compelling him to resort to a separate action for this purpose. These cases do not assert, so far at least as the actual decisions therein are involved, that a tenant might refuse to re- store the possession of the land to the landlord merely because the title is in the federal or state government, or because the title was obtained by the lessor, or the lease was made, in violation of some statute in reference to public lands. There are, on the contrary, decisions that the tenant cannot assert in defense to an action by the landlord for possession that the title is in the state,*"^ and such a view is involved in decisions that he cannot assert a title obtained by him from the state since the making of the lease.303 Likewise, it has been decided that an Indian who had merely a right to share in common with the other members In Pain v. Miller, 35 Tex. 79, it -was that the landlord's title was ex- decided that one who entered on tinguished. See post, § 78 p. (3). public land under a lease from one soo Peterson v. Kinkead, 92 Cal. who had only taken initial steps to 372, 28 Pac. 568. acquire it could himself acquire the *" See post, § 78 i (2). 302 Peterson v. Kinkead, 92 Cal. 372, 28 Pac. 568; Ellis v. Pltzpatrick, 55 C. C. A. 260, 118 Fed. 430, afg. 3 the public surveyor to survey the j^^ rj, ggg^ 34 S. W. 567; Pappe v. land for the purpose of a homestead. Trout, 3 Okl. 260, 41 Pac. 397; Shy In Lang v. Crothers, 21 Tex. Civ. v. Brockhause, 7 Okl. 35, 54 Pac. App. 118, 51 S. W. 271, it was de- 306; Young v. Severy, 5 Okl. 630, 49 cided that after a purchaser of pub- Pac. 1024; Wallbrecht v. Blush, 43 lie land had lost his right by failure Colo. 329, 95 Pac. 927. to pay interest, his tenant could pur- sos Arnold v. Woodard, 4 Colo. 249; chase the land from the state, this Jackson v. Harper, 5 Wend. (N. Y.) decision being based on the theory 246. land as a homestead. This was a mandamus by such lessee to compel § 78 INVALIDITY OF LEASE. 459 of his tribe in the tribal lands could recover possession from his lessee at the end of the term.3o* In one case, however, one who obtained possession under a lease was allowed to show in de- fense to an action for possession that the land was within an Indian reservation, so that, under the laws of the United States, a settlement thereon by either of the parties to the lease con- situted a penal offense.^os In regard to the right of the tenant to assert, in defense to an action for rent, that the land was public land, there is one de- cision that he is not "estopped" so to do, the statute reserving the land of which the leased premises were a part ''for the future disposal of the United States," and declaring that it "should not be entered, located, or appropriated for any other purpose whatever. "306 On the other hand, it has been decided that it is no defense to an action for rent that the lessor had no claim to the land except under a lease from an Indian tribe, which lease was in direct violation of a statute of the United States.^"'^ And, likewise, it was decided to be no defense to such an action that the land was tide land, the title to which was in the United States at the time of the lease, the occupancy of the land by private par- ties never having been objected to and having been subsequently approved by legislative declaration.^os This question of the right of a tenant to refuse to pay rent re- served on a lease of public or Indian land would seem to be one to be decided with reference to the legality of the transaction as a whole, this to be determined by the character of the stat- utes bearing on the question. If it is against public policy to enforce such an obligation in the particular case, the courts should not enforce it, but if not against public policy, it should be en- forced. That the lessor has not the title to the premises has merely an incidental bearing on the question of his right of re- covery, and to state the liability or nonliability of the tenant in soiWllcoxen v. Hybarger (Ind. T.) Ass'n v. Cass Land & Cattle Co., 138 38 S. W. 669. And see Ikard v. Mo. 394, 40 S. W. 107. Mlnter, 4 Ind. T. 214, 69 S. W. 852. sos Hall & Paulson Furniture Co. 305 Uhllg V. Garrison, 2 Dak. 71, 2 v. Wilbur, 4 Wash. 644, 30 Pac. 665. N. W. 253. And see St. Anthony Falls Water 306 Dupas V. Wassell, 1 Dill. 213, Power Co. v. Morrison, 12 Minn. 249 Fed. Cas. No. 4,182. (Gil. 162), ante, note 295. 307 Cherokee Strip Live Stock 460 PRECLUSION TO DENY TITLE. | 7g such case in terms of estoppel is, it is submitted, misleading, if not absolutely erroneous.^"^ h. Fraud or mistake in the making of the lease. When the lessee has entered under the lease,^!'* the fact that the acceptance of the lease was procured by duress or fraud on the part of the lessor, or that the acceptance was under mistake on the part of the lessee, will not enable the lessee to defend an action by the lessor for possession on the ground that the lessor's title is de- fective.311 A contrary view would violate the well recognized rule that one seeking to rescind a transaction for duress, fraud or mistake must put the other party in statu quo by returning what he has received thereunder, and would, in the ease of fraud, involve in effect the imposition on the lessor of damages out of all proportion to the injury caused by the fraud, this being particu- larly productive of injustice when applied as against an inno- cent transferee of the reversion. Occasional suggestions to the effect that the lessee may deny the lessor's title if the acceptance of the lease was procured by fraud^i^ are, it is submitted, errone- ous, though, as hereafter indicated,^!^ there seems no objection, on principle, without reference to the question of fraud, to his assertion of title in himself by way of defense to an action for possession. And that he can do this when the making of the 309 See ante, § 78 c (3). wrongfully exacted," the lessee could 310 As to the case of the accept- purchase a paramount title under ance of a lease under duress, fraud threat of eviction by the owner there- or mistake by one already in pos- of and assert it as against the les- session, see post, § 18 k (4) (5). sor's demand for possession. There 311 See Jackson v. Spear, 7 Wend, was here, it would seem, a clear (N. Y.) 401; Simons v. Marshall, 3 case of constructive eviction under G. Greene (Iowa) 502; Higgins v. paramount title (see post, § 78 p Turner, 61 Mo. 249. [2]), so that the question of fraud 3i2Loring v. Harmon, 84 Mo. 123; was immaterial. Parrott v. Hungelburger, 9 Mont. In New Mexico (Comp. Laws 1897, 526, 24 Pac. 14; Jones v. Reilly, 174 § 3364) the legislature has provided N. Y. 67, 66 N. E. 649, 63 L. R. A. 163 ; in terms that "when a lessee has Baskin v. Seechrist, 6 Pa. 154; Bark- been induced to take a lease by man v. Barkman, 107 111. App. 33. means of force, fraud or intimida- In Gallagher v. Bennett's Heirs, 38 tion, he shall be permitted to plead Tex. 291, it was decided that if the a paramount title in himself, an lessor was guilty of fraud and he outstanding title, or the want of was unable by reason of insolvency title in his lessor." to indemnify the tenant "for rents sis See post, § 78 i (2). § 78 PARAMOUNT TITLE IN TENANT. 461 lease was but one part of a fraudulent transaction by which the lessor obtained the land from him is unquestionable, provided equitable defenses are in that jurisdiction allowed in actions at law.314 In an action for rent, the fact that the acceptance of the lease was under duress, fraud or mistake is itself sufficient as a defense, provided the lessee returns the possession,3i5 and, consequently, in such case, the validity of the lessor's title becomes absolutely irrelevant. If he does not return the possession he cannot, it is conceived, assert the duress, fraud or mistake merely because the lessor's title is defective, nor should the fact that the lease was accepted under duress, fraud or mistake enable him to assert the defense, which otherwise he cannot assert,3i6 that the lessor's title was defective.^i'^ The same may be said with reference to an action of assumpsit for use and occupation. So in other ac- tions, it is presumed, the tenant could not, whether the lessor's title is valid or invalid, repudiate the obligations imposed on him by the terms of the lease and his entry as tenant thereunder, so long as he retains the benefits conferred thereby, on the ground that he assumed such obligations as a result of duress, fraud or mistake. i. Paramount title in tenant — (1) Right to acquire title. Conceding, as are the cases, apparently, that the tenant cannot ordinarily institute a proceeding involving the title to the land so long as he remains in possession,^!® it is immaterial, as re- gards his right to do so after relinquishing possession, whether he acquired such title during the tenancy or prior thereto. A ten- ant has usually the right to acquire a title paramount to that of the landlord, although precluded from immediately asserting it.^^* 314 See Harvin v. Blackman, 108 from the rent. Mostyn v. West La. 426, 32 So. 452. Mostyn Coal & Iron Co., 1 C. P. Div. 315 See ante, §§ 38, 39. 145. 316 See ante, § 78 c (3). sis See ante, § 78 c (6). 317 It is so decided in Nissen v. sio Gable v. Wetherbolt, 116 111. Turner, 50 Neb. 272, 96 N. W. 778; 313, 6 N. B. 453, 56 Am. Rep. 313; Mosher v. Cole, 50 Neb. 636, 70 N. Hodges v. Shields, 57 Ky. (18 B. W. 275. Mon.) 828; Kelley v. Kelley, 23 Me. But if the fraud consists of false 192; Presstman v. Sill jacks, 52 Md. representations as to the title, the 647; Rives v. Nesmith, 64 Miss. SOT, tenant may show the lack of title 2 So. 174; Walker v. Harrison, 75 for the purpose of obtaining relief Miss. 665, 23 So. 392; Nodine v. 462 PRECLUSION TO DENY TITLE. § 7g Occasionally, however, a different view has been taken. In Ne- braska it has been decided that a tenant cannot purchase a mort- gage paramount to the title of the lessor and enforce it for its full amount, but he will be presumed to have purchased it to protect his possession and will be allowed to enforce it only to the extent of the amount paid for it by him.s^o j^ ig not entirely clear why a distinction should be made between the case of the acquisition by the tenant of a parahiount mortgage and of a para- mount title, and on the same theory it would seem, in that state, a tenant acquiring an absolute paramount title during his tenancy might be allowed to assert it against the landlord only to the ex- tent of the amount which he has paid for it, and it has been so held where the purchase was at judicial sale and without notice to his landlord.321 Jq Pennsylvania, likewise, it has been held that the tenant could not, without notice to his landlord, fore- close a paramount mortgage held by him and purchase at the sale, the purpose of the proceeding being evidently to divest the landlord's title.^^a ^ purchase of a paramount title by the ten- ant at judicial or execution sale will, no doubt, be set aside if ef- fected by fraud, as when he falsely represented to other intending purchasers that he was buying in behalf of the landlord, and so obtained the property at a greatly inadequate price.^^^ In Ken- tucky it is decided that a tenant cannot obtain a patent for the premises or for a part thereof.^ ^4 If the tenant is, by the terms of the lease, under an obligation to pay the taxes on the demised premises, he cannot purchase them on a sale for nonpayment of taxes and assert the title so acquired as against his landlord.^zs "Whether he is under the same dis- Rlchmond, 48 Or. 527, 87 Pac. 775; 322 Appeal of Matthews, 104 Pa. Pickett V. Ferguson, 86 Tenn. 642, 8 444. S. W. 386; Spafford v. Hedges, 231 323 Cocks v. Izard, 74 U. S. (7 III. 140, 83 N. E. 129; Pierce v. Wall.) 559. Brown, 24 Vt. 165; Williams v. Gar- 324Trabue v. Ramage, 80 Ky. 323; rison, 29 Ga. 503. King v. Hill, 32 Ky. Law Rep. 1192, 320Mattis V. Robinson, 1 Neb. 3; 108 S. W. 238. Thrall v. Omaha Hotel Co., 5 Neb. 325 Heyden v. Castle, 15 Ont. 257; 295, 25 Am. Rep. 488. Busch v. Huston, 75 111. 343; Bur- 32iLausman v. Drahoss, 10 Neb. gett v. Taliaferro, 118 111. 503, 9 N. 172, 4 N. W. 956, 33 Am. Rep. 468- E. 334; Carithers v. Weaver, 7 Kan. The landlord was therefore per- 110; Rowley v. Wilkinson, 8 Kan. mitted to redeem. App. 435, 57 Pac. 42; Bertram v. § 78 PARAMOUNT TITLE IN TENANT. 463 ability in the absence of any agreement on his part to pay the taxes is a question on which the authorities are not in accord. By some decisions it is clearly asserted that he may purchase at tax/ sale in such case and assert the title so acquired against the land- lord.^26 But \yy perhaps the weight of authority he is regarded • as precluded from so doing, owing to his community of interest in the premises with the landlord, and a purchase by him will be regarded as merely a payment of the tax.327 in Mississippi it is said that he cannot buy at tax sale because he is himself un- der an obligation to pay the taxes,^28 and in an earlier case in this state it was decided that if a tenant, while indebted to the landlord for rent, buys at a tax sale, it will be presumed that he is paying the taxes out of the rent due,- even though they accrued before the time of his occupancy.*^^ - In Arkansas it was decided that, although the tenant might buy at the tax sale, he would in equity be treated as a trustee for the landlord, and would not be allowed to speculate on his purchase nor to receive more than six per cent, interest on the sums paid for taxes nor penalties and costs on subsequent taxes paid.^®'' And in Kansas it was de- cided that, although the tenant did not expressly agree to pay taxes, if he took possession without agreeing to pay any rent and ■ occupied for eleven years without paying or offering to pay rent, Cook, 32 Mich. 518; Haskell v. Put- s2t Bailey's Adm'r v. Campbell, 82 nam, 42 Me. 244; Blake v. Howe, 1 Ala. 342, 2 So. 646; Curtis v. Smith, Aiken (Vt.) 306, 15 Am. Dec. 681; 42 lowa, 665 (dictum); Petty v. Williamson v. Russell, 18 W. Va. ^^^^^ jg pjg^ ggg. Morris v. Apper- 612; Shepardson v. Elmore, 19 Wis. ^^^^ ^^ ^^ Law Rep. 838, 13 S. W. *^*- „ ^ . „..,,„., r.^ 441; Smith v. Specht, 58 N. J. Eq. 326Bettison v. Budd, 17 Ark. 546, ,„'.,, ^„„ . . , „ „ ^r . V, .^n T, TjTtj. , 47, 42 Atl. 599; Lyebrooke v. Hall, 65 Am. Dec. 442; Ferguson v. Etter, _„' „ „„„ ^„' „_ „,.„. o, » 1 ..on „^ A -rJ oei n-„™^ 73 Miss. 509, 19 So. 348; Williams v. 21 Ark. 160, 76 Am. Dec. 361 Brown V. Atlanta kat. Bldg. & Loan Ass'n, ^owl, 65 Mich. 204. 1 N. W. 835. 46 Fla. 492, 35 So. 403; Weichselbaum »==« Walker v. Harrison, 75 Miss. V. Curlett, 20 Kan. 709; Uhl v. Small, 665, 23 So. 392. But if the land was 54 Kan. 651, 39 Pac. 178; Smith v. sold to the state before he came into Newman, 62 Kan. 318, 62 Pac. 1011, possession, he could buy from the 53 L. R. A. 934; Higgins v. Turner, state. Id. 61 Mo. 249; Maxwell v. Griftner, 13 szoGaskins v. Blake, 27 Miss. (5 Ohio Cir. Ct. R. 616; Crosby v. Bon- Cushm.) 675. nowsky, 29 Tex. Civ. App. 455, 69 S. sso Waggener v. McLaughlin, ' 33 W. 212; Wright v. Jessup, 44 Wash. Ark. 195. 618, 87 Pac. 930. 464 PRECLUSION TO DENY TITLE. § 78 he could not let the property go to tax sale and become the pur- chaser thereof.3^^ (2) Right to assert title. , It has been decided that the lessee, or one claiming under him, is precluded not only from showing that there is an outstanding paramount title in a third person, but also that there is such a title in himself. Thus it has been decided that one cannot defend an action for rent by showing that at the time of the lease the lessee had paramount title,^^^ and no doubt the same view would be taken of an attempt to show that, since the lease, a paramount title has passed to the de- fendant. So it has been decided that a tenant cannot defend a summary proceeding on the ground that at the time of the lease the lessee had a paramount title,^33 or that since then such a title has passed to the tenant, the defendant in the proceeding.324 And like decisions have been made in actions of ejectment as to a paramount title in the lessee at the time of the lease^^s as well as to a title thereafter obtained by him.^^e And, likewise, in ac- 331 Duffit V. Tuhan, 28 Kan. 292. sss Abbott v. Cromartie, 72 N. C. 332 prettyman v. Walston, 34 111. 292, 21 Am. Rep. 457; "Wood v. 175; Heyen v. Ward, 67 111. App. Turner, 27 Tenn. (8 Humpli.) 685. 472; Morrison v. Bassett, 26 Minn. It was recently held in New York 235, 2 N. W. 851; Newall v. Wright, that one who entered as lessee could 3 Mass. 138, 3 Am. Dec. 98. not assert a continued right of pos- 333 Houston V. Farris, 71 Ala. 570; session by reason of his having pur- Silvey V. Summer, 61 Mo. 253; Wash- chased a paramount mortgage. Bar- ington V. Moore, 84 Ark. 220, 105 S. son v. Mulligan, 191 N. Y. 306, 84 N. W. 253, 120 Am. St. Rep. 29; Bohn E. 75. V. Hatch, 39 N. Y, St. Rep. 404, 15 ass peytnn v. Stith, 30 U. S. (5 N. Y. Supp. 550; Johnson v. Thro- Pet.) 485; Burgess v. Rice, 74 Cal. wer, 117 Ga. 1007, 44 S. B. 846. So 590, 16 Pac. 496; Arnold v. Woodard, where the lessor's only color of title 4 Colo. 249; DYane^ v. Gregory's was a conveyance from the lessee Heirs, 42 Ky. (3 B. Mon.) 619; Grif- which was void or voidable. Van- fin v. Sheffield, 38 Miss. (9 George) cleave v. Wilson, 73 Ala. 387; Know- 359, 77 Am. Dec. 646; Jackson v. les V. Murphy, 107 Cal. 107, 40 Pac. Harder, 4 Johns. (N. Y.) 210, 4 Am. Ill; Williams v. Wait, 2 S. D. 210, 49 Dec. 262; Cornell v. Hayden, 114 N. N. W. 209, 39 Am. St. Rep. 768. Y. 271, 21 N. E. 417 (semble) ; Gal- 334 Rowan v. Lytle, 11 Wend. (N. loway's Lessee v. Ogle, 2 Bin. (Pa.) Y.) 616; Emerick V. Tavener, 9 Grat. 468; White v. Nelles, 11 Can. Sup. (Va.) 220, 58 Am. Dec. 217; Hill v. Ct. 587 (semble). So in trespass to Watkins, 4 Ind. T. 170, 69 S. W. try title. Henley v. Branch Bank, 837; Wilson v. Lyons, 4 Neb. Unoff. 16 Ala. 552. 406, 94 N. W. 636. § 78 PARAMOUNT TITLE IN TENANT. 465 tions for use and occupatioii,^^^ or replevin for goods distrain- ed,*** the tenant cannot assert paramount title in himself. The propriety of such a rule in actions for rent and for use and occupation is plainly apparent, the controlling considerations being the same as when the paramount title is in a third person, and the same may be said of an action of replevin for goods dis- trained. In the case of summary proceedings, the not infrequent statutory provision that no question of title shall be tried in such proceedings would necessarily preclude such a defense. But the applicability of such a rule in connection with an action of eject- ment, though supported by the decisions of the strongest courts,*** •] is, it is submitted, open to serious question. That the tenant should not be permitted to assert title in a third person in such an action is a most reasonable and necessary rule, since otherwise he would procure the possession, as against the lessor, without any right thereto. But if he has a right to the possession, that is, the superior title, the reason of the rule disappears. The only result of the application of the rule in the latter case is that the tenant is driven to a separate action for the purpose of assert- ing his title, in disregard of the recognized policy of the courts to avoid circuity of action.*^" This would seem to be to the dis- advantage even of the landlord, since the tenant will, in the ordi- nary case, immediately institute an action to establish his title, with the result of double expense to all parties as well as to the state. The only effect of the relation of landlord and tenant, as re- gards the action of ejectment, should be, it is conceived, to place upon the tenant the burden of showing his superior title. The views here stated are in accord with a well considered English decision.**! In this country, likewise, there are two cases to the 337 Hatch V. Bullock, 57 N. H. 15. Mackenzie, 5 Law T. (N. S.) 20, 338 Ward v. City of Philadelphia, 9 Wkly. Rep. 783, 10 C. B. (N. S.; 18 Wkly. Notes Cas. (Pa.) 561. Am. Reprint) 870. It is singular 339 See ante, notes 335, 336. that English text hooks, usually of 340 The maxim "frustra petis quod great accuracy, such as Foa, Landl. statim alteri reddere cogeris," quot- & Ten. (2d Ed., at p. 303) ; Fawcett, ed from Jenkins' Centuries (p. 256, Landl. & Ten. (3d Ed., at p. 76), case 49) by Mr. Broom (Maxims, P. refer to this merely as a case involv- 346) in discussing the rule forbid- ing the entrance into a tenancy by ding circuity of action, seems exact- mistake. The matter of mistake is ly applicable. not referred to in the opinions, nor 841 Accidental Death Ins. Co. v. is the fact that the lessee was prev- L. and Ten. 30. 466 PRECLUSION TO DENY TITLE. § 7jj effect that a tenant may, by the purchase of a mortgage prior to the lease, acquire a right of possession which he may assert against the landlord without first relinquishing possession,^^^ as well as a decision that the tenant acquiring title under foreclosure of such a mortgage may so assert his right.**^'' In one of these cases3*2b j^ jg stated, in accordance with the views above ex- pressed, that "whenever by purchasing such (paramount) title, the tenant is entitled to the right of possession, it would be an idle ceremony to require the tenant to surrender up his posses- sion, and then resort to his action of ejectment, when its only ef- fect can be, to put the plaintiff in the same situation he now occu- pies. ' ' In the other two eases, however, no such view is indicated, and the decisions are apparently based on the mistaken idea that a title based on a mortgage made before the lease is reversionary in character and not paramount.^^s In Michigan there are decisions to the effect that in ejectment by the landlord the tenant is not estopped to deny the former's title, not for the reasons above suggested, but because, if he may not do so, a judgment would be rendered in favor of the land- lord which would be conclusive on the tenant as against any sub- sequent assertion of title by the latter -,3** and in Texas it is said iously in possession. The decision based on the existence of a special is based exclusively on the avoid- agreement allowing him so to do. ance of circuity of action. See ante, note 215. 3*2 Shields v. Lozear, 34 N. J. Law, In Willis v. McKinnon, 35 App. 496, 3 Am. Rep. 256; Pierce v. Div. 131, 54 N. Y. Supp. 1079, it was Brown, 24 Vt. 165. decided by a majority of the court 342a Spafford v. Hedges, 231 111. that one who took what purported 140, 83 N. E. 129. to be a lease of the entire property 342b Pierce v. Brown, 24 Vt. 165. from one of the joint owners thereof The statement of Tilghman, C. J., in might, when sued in ejectment by City of Philadelphia v. Schuylkill his lessor, assert a title acquired Bridge Co., 4 Bin. (Pa.) 283, that- "it since the lease from the other joint would have answered no purpose to owner, the decision being apparently obtain the possession and be immed- placed upon the ground that the lately involved in a new suit in lessor assented to such acquisition which the right must be investigat- from the other joint owner, ed. The sooner they came to the 343 See ante, § 73 c; post, § 147. point the better," would seem to 344 Jochen v. Tibbells, 50 Mich. 33, apply to any case of an action for 14 N. W. 690; Shaw v. Hill, 79 Mich, possession by the landlord, though 86, 44 N. W. 422; Id., 83 Mich. 322, there the decision that the lessee 47 N. W. 247. See Hubbard v. Shep- mlglit assert title in himself was ard, 117 Mich. 25, 75 N. W. 92, 72 78 PARAMOUNT TITLE IN TENANT. 467 that, for this reason, the rule of estoppel does not apply to an action of trespass to try title and for partition.345 These deci- sions seem to be open to question as assuming that one can be concluded by a judgment as to matters which he could not liti- gate in the action in which the judgment was rendered. The general rUle is to the contrary ,346 and there are occasional direct decisions that a judgment thus rendered in favor of the landlord is not conclusive in a subsequent action by the tenant.^*^ In New Hampshire a decision, in favor of the right of the ten- ant to assert a title in himself as against the landlord suing for possession, was based in terms on the common-law rule that an estoppel by deed ceases with the end of the term.3*8 If this de- Am. St. Rep. 548. These decisions state that if "the landlord seeks to recover the possession, he can do so under the lease; but if he goes farth- er and claims the premises in fee, the tenant is not estopped from denying any right claimed by the plaintiff further or greater than that or possession." But it would seem that a judgment establishing in the lessor an estate less than a fee might involve a hardship on the tenant less in degree only than a judgment establishing a fee therein, and an adjudication of a right of possession in him is in effect an ad- judication that he has some estate. 34B McKie V. Anderson, 78 Tex. 207, 14 S. W. 576. 348 See 2 Black, Judgments, §§ 610, ■655, 659; 23 Cyclopedia Law & Proc. 1317. 3*T In Arnold v. Woodward, 14 Colo. 164, 23 Pac. 444, it is said that a judgment in ejectment for the landlord is not conclusive of want of title in a subsequent suit for possession by the tenant, since he could not assert title in the first suit. And in Linberg v. Finks, 7 Tex. Civ. App. 391, 25 S. W. 789, re- ferred to in Black, Judgments, § 659, it was held that a judgment in favor of the landlord in trespass to try title was not a bar to a sub- sequent action by the defendants against such landlord to recover the land. This case does not refer to McKie V. Anderson, 78 Tex. 207, 14 S. W. 576, supra. So it is said that the judgment in an action of unlawful detainer by the landlord against the tenant is conclusive only as to whether there was a lease and as to whether there was a refusal to surrender posses- sion at the end of the term, and that the title was not "and could not, from the nature of the case, be put in issue in that action." Wilson v. Cleaveland, 30 Cal. 192. 343 Carpenter v. Thompson, 3 N. H. 204, 14 Am. Dec. 348. In Page v. Kinsman, 43 N. H. 328, it was de- cided, on the same theory, in an action for damages for flooding land, that the defendant was not estopped to show a right to flow it by the fact that he had formerly accepted a lease from plaintiff of this right, which lease had expired. But here there could' have been no question of an estoppel based on the delivery of possession, and the only possible 468 PRECLUSION TO DENY TITLE. § 73 cision means that, after the term, the tenant may assert a para- mount title in a third person as well as one in himself, in defense to an action by the landlord for possession, it is evidently not in harmony with the decisions generally.^*^ The result reached was, it is submitted, a correct result, because the paramount title happened to be in the tenant, but the reasoning on which the de- cision is based, as implying that the tenant could always assert a paramount title in defense to such an action, was defective. It does not appear, indeed, that the doctrine of estoppel by inden- ture was ever, by the older authorities, applied in connection with a proceeding by the landlord against the tenant to recover possession. In North Carolina, also, there are decisions which seem, to some extent at least, to depart from the rtde usually asserted in this country that, in ejectment, or its statutory equivalent, the tenant cannot show that he has a better title than the landlord. It is there said that the rule does not preclude the tenant from showing an equitable title in himself "on such circumstances as under our former system would call for the interposition of a court of equity for his relief, and which relief may now be ob- tained in the action" at law.^^" And, applying this doctrine, it was held that one in possession under a lease from another might, in an action by the lessor for possession, show that, be- fore the lease, the lessor had conveyed the property to him.^^^ In another case it was held that in such an action for possession the lessee might show that a deed from him to the lessor, made before the lease, was intended as a mortgage merely, and might, in that action, have the deed reformed.^^^ These cases seem to assume that, before the statute allowing equitable defenses at law, equity would have interfered to enjoin an action of eject- ment by the landlord, provided the tenant had a legal title su- perior to his, or an equity in the land entitling him to a con- veyance of the legal title. In no other jurisdiction does it ap- pear to have been considered that the tenant, having a superior basis for an estoppel would have Parker v. Allen, 84 N. C. 466; Hahn been the lease Itself. v. Guilford, 87 N. C. 172. 340 See ante, § 78 c (1). ssi Allen v. Griffin, 98 N. C. 120, S 350 Davis V. Davis, 83 N. C 71. S. E. 837. See, also. Turner v. Lowe, 66 N. O. 352 Forsythe v. Bullock, 74 N. C. 413; Pate v. Turner, 94 N. C. 47; 135. § 78 LEASE IN REPRESENTATIVE CAPACITY. 469 legal title, might obtain protection against the landlord in equity, but not at law. As before indicated, it would seem that the tenant, having a legal right to possession, might properly assert the right at law as well as in equity, even as against one under whom he had entered as tenant. It has been decided in a Canadian case that a lessee cannot re- move a building on the land and defend an action of trover by asserting that the land belonged to him at the time of the lease.^ss The application of the doctrine of estoppel or preclusion under such circumstances seems to involve a decided hardship on the tenant, as in effect transferring to the lessor the title to the building merely because the owner accepted a lease of the land. The fee simple owner of the land and building should, it is sub- mitted, have a right to remove the building, even though he has accepted a lease from another, he having, however, the burden of proving his ownership. j. Lease by person acting in representative capacity. The ap- plication of the rule or rules precluding the tenant from ques- tioning the lessor's title is called for in the case of one making a lease as executor or administrator, and the tenant cannot after- ward refuse to pay rent on the ground that the lessor had no authority to make the lease,^^* or to relinquish possession after the term on the ground that. the lessor had no title.^ss it has been decided, however, that the tenant may defend an action for waste by showing that the executor, in making the lease, acted under a naked power, so that the reversion was in the heir, who alone could maintain the action.sss Tj^-g yjg-^^ ^^g presumably correct, for the reason that a lease made under a power relates back to the date of the power, and is regarded as if made by the donor of the power,^^'^ and the donor's interest had passed to the heir and not to the executor. sBSRenalds v. Offitt, 15 U. C. Q. B. West, 130 N. C. 171, 41 S. E. 65; 221. Caldwell v. Harris, 23 Tenn. (4 3B4 Christie v. Clarke, 16 U. C. C. Humph.) 24. Contra, Capper v. P. 544; Terry v. Ferguson, 8 Port. Sibley, 65 Iowa, 754, 23 N. W. 153. (Ala.) 500; Howe V. Gregory, 2 Ind. sss Bishop v. Lalouette, 67 Ala. App. 477, 28 N. E. 776; Steele v. R. 197; Rowland v. Dillingham, 83 App. M. Gilmour Mfg. Co., 77 App. Div. Div. 156, 82 N. Y. Supp. 470. 199, 78 N. Y. Supp. 1078; Gregory v. seepage v. Davidson, 22 111. 112. Michaels, 1 Misc. 195, 20 N. Y. Supp. sbi See 1 Tiffany, Real Prop. pp. 877; Steuber v. Huber, 107 App. Div. 605, 611. 599, 95 N. Y. Supp. 348; Shell v. 470 PRECLUSION TO DENY TITLE. § 7g It has likewise been decided that one to whom a lease has been made by a receiver cannot deny the authority of the receiver to make it.^^^ The doctrine that the tenant cannot deny the lessor's title has been applied in connection with leases made by an agent. If one makes a lease and thereafter puts the lessee in possession, the lessee, or one claiming under him, cannot, it has been decided, refuse to relinquish possession on the ground that the lessor had no title but acted in behalf of another, who was the owner of the land,^59 and the fact that the lessor described himself in the lease as agent, without, however, naming the principal, has been re- garded as giving him no right to assert the fact of agency in de- fense to an action by the lessor for possession.^^o In Canada, however, the view has been asserted that the tenant might re- fuse to relinquish possession to the lessor on the ground that the latter acted as agent merely in making the lease, provided it appears that the lessor, in putting the lessee in possession, pur- ported to act, not in his own right, but in the right of another, the lessee consequently, in effect, agreeing to relinquish posses- sion to such other and not to the lessor himself.^^^ Such a view seems sound in principle. The lessee having obtained possession by a tacit representation that he will return possession to one other than the nominal lessor, there is no room for the ordinary estoppel to deny the lessor's right to possession.^^^ Even though the principal is named, if the lease purports to be the lease of the agent and liOt of the principal, the tenant can- not, it has been decided, refuse to pay rent to the agent or one 358 Pouder v. Cattefson, 127 Ind. case, precluded from questioning the 434, 26 N. E. 66; Dancer v. Hastings, principal's title. Fleming v. Good- 12 Moore, 34. ing, 10 Bing. 549, -whicli was, how- 359 Taylor v. White, 86 Mo. App. ever, an action for use and occupa- 526 (summary proceeding) ; Houck tion. V. "Williams, 34 Colo. 138, 81 Pac. In Wolf v. Holton, 92 Mich. 136, 800 (ditto). 52 N. W. 459; Id., 104 Mich. 107, 360 Holt V. Martin, 51 Pa. 499. 62 N. W. 174, it was held that if 361 Baldwin v. Burd, 10 TJ. C. C. P. a guardian made a lease of the land 511. This case cites Fleming v. of his ward, the lessee could not Gooding, 10 Bing. 549, dicta in which assert, in defense to an action by the appear to support it. ward for possession after coming of 362 See ante, § 78 c (1). age, that his title was defective. The tenant is, it seems, in such § 78 ATTORNMENT BY PERSON IN POSSESSION. 471 claiming under Um on the ground that the title is in the prin- cipal,*6* nor can he defend an action on other covenants upon that ground.3«* These decisions are in terms based on the the- ory of preclusion or estoppel, but they might, it is conceived, quite as well be based on the theory that the covenant being made with the agent, he has a right to sue thereon in accordance with the ordinary rule that an agent can sue upon a contract made with him on behalf of his principal.^^^-ses k. Attornment by person in possession — (1) The rule as usually stated. There are a large number of eases to the effect that if one already in possession of land takes a lease thereof from another under whom he did not enter, or otherwise attorns to such other, he is precluded, to the same extent as if he had entered under a lease from the latter, from denying his title. This view has most frequently been asserted in connection with actions by the lessor or his transferee to recover possession from the tenant,**^ but it has occasionally been asserted in connection 363 stott v. Rutherford, 92 U. S. 72 N. C. 292, 21 Am. Rep. 457; Farm- 107; Kendall v. Garland, 59 Mass. er v. Pickens, 83 N. C. 549; Dixon v. (5 Gush.) 74; Melcher v. Kreiser, 28 Stewart, 113 N. C. 410, 18 S. E. App. Div. 362, 61. N. Y. Supp. 249. 325; Loring v. Harmon, 84 Mo. But Nlles V. Gonzales, 1 Cal. App. 123; Miller v. McBrier, 14 Serg. 324, 82 Pac. 212, Is apparenUy con- f J'" ^^^^ /f J ™^rj\ ^f.' 2 S. D. 210, 49 N. W. 209, 39 Am. St. trfi Rep. 768; Tyler v. Davis, 61 Tex. 364 Stott V. Rutherford, 92 U. S. 107. 374; Locke v. Frasher, 79 Va. 409; 365-388 Huffcut, Agency (2d Ed.) §§ Jordan v. Katz, 89 Va. 628, 16 S. E. 207, 208. ggg. Jones v. Reilly, 174 N. Y. 97, 36»Vancleave v. Wilson, 73 Ala. 66 N. K. 649; Lucas v. Brooks, 85 U. 387; Hughes v. Watt, 28 Ark. 153; s. (18 Wall.) 436; Doe d. Pritchitt Saunders v. Moore, 77 Ky. (14 y. Mitchell, 1 Bred. & B. 11; Doe d. Bush.) 87; McConnell v. Bowdry, 20 Marlow v. Wiggins, 4 Q. B. 367; Ky. (4 T. B. Mon.) 392; Tison v. Barkman v. Barkman, 107 111. App. Yawn, 1 Ga. 491, 60 Am. Dec. 708; 332; Sturges v. Van Orden, 37 Misc. Gampau v. LafEerty, 43 Mich. 429, 5 499, 75 n. Y. Supp. 1007; Piper v. N. W. 648; Garter v. Marshall, 72 Cassell, 58 G. G. A. 396, 122 Fed. 614; 111. 609; Forgy v. Harvey, 151 Ind. Willis v. Harrell, 118 Ga. 906, 45 S. 507, 51 N. E. 1066; Bartlett v. Rob- e. 794; Bullard v. Hudson, 125 Ga. inson, 52 Neb. 712, 72 N. W. 1053; 393, 54 S. B. 132; Wallace v. Ocean Jackson v. Spear, 7 Wend. (N. Y.) Grove Camp Meeting Ass'n, 78 C. 401; Ingraham V.Baldwin, 9 N. Y. (5 C. A. 406, 148 Fed. 672; Doe d. Seld.) 45; Isaac v. Clarke, 2 Gill Sands v. Phillips, 3 New Br. (1 (Md.) 1; Voss V. King, 33 W. Va. 236, Kerr) 533. 10 S. E. 402; Abbott v. Cromartie, In Minnesota the statute (Rev. 472 PRECLUSION TO DENY TITLE. § 78 with actions for rent or for use and occupation^'''** as well as dis- tress proceedings.®''^ Under such a rule, a grantor who remains in possession after the grant by virtue of a demise from his grantee cannot, as against the latter, question the validity of the grant.®'^^ And so if a mortgagor, upon the sale of the premises on foreclosure, attorns to the purchaser, he cannot question the validity of the sale.s'^s Numerous other applications of the doctrine have oc- curred, as when a mere trespasser on land accepted a lease from or attorned to one who had threatened to evict him,^''* or when one who entered under a demise from one person attorned to or accepted a lease from another,®'^^ and in each case the person in possession was regarded as precluded from questioning the title of the person towards whom he had thus assumed the position of tenant. So it has been recognized in England that one may, on mortgaging land, attorn to the mortgagee and thus disqualify himself from asserting, as against a distress by the mortgagee, that the latter has no legal reversion for the reason that the mortgagor had, at the time of the mortgage, merely an equitable interest.*'^^ I Whether the acknowledgment by the person in possession that he stands in the relation of tenancy towards another is by the acceptance of a lease from him,®^^ by an attornment in express Laws 1905, § 3329) providing that a 373 Buchanan v. Larkin, 116 Ala. tenant shall not deny his landlord's 431, 22 So. B43; Granger v. Parker, title in an action for possession ex- 137 Mass. 228. cepts the case ot a lessee vrho at 374 Bowdish v. City of Dubuque, 38 the time of the lease was in pos- Iowa, 341; Saunders v. Moore, 77 session of the premises under a claim Ky. (14 Bush) 97; Kelley v. Kelley, of title adverse or hostile to that of 23 Me. 192. the lessor. 375 Cox v. Cunningham, 77 111. 37oprevot V. Lawrence, 51 N. Y. 545; Ingraham v. Baldwin, 9 N. Y. 219; Derrick v. Luddy, 64 Vt. 462, 24 (5 Seld.) 45; Piper v. Cashell, 58 C. Atl. 1050; Lyon V. Washburn, 3 Colo. C. A. 396, 122 Fed. 614. But com- 201. pare ante, § 19 b (4), at notes 91- 371 Hall V. Butler, 10 Adol. & E. 94. 204; Morton v. Woods, L. R. 3 Q. B. 376 Morton v. Woods, L. R. 3 Q. B. 658, L. R. 4 Q. B. 293. See post, § 78 658, L. R. 4 Q. B. 293. See Jolly v. k (3). Arbuthnot, 28 Law J. Ch. 547, 4 De 372 Vancleave v. Wilson, 73 Ala. Gex & J. 224. 387; Williams v. Wait, 2 S. D. 210, 377 Lucas v. Brooks, 85 V. S. (18 49 N. W. 209, 39 Am. St. Rep. 768. Wall.) 436; Vancleave v. Wilson, 73 §78 ATTORNMENT BY PERSON IN POSSESSION. 473 terms to him,3''8 by payment of a nominal sum of money in ac- knowledgment of the relation,3^9 or by submission to distress by him,38o would seem to be entirely immaterial. By either course of conduct one acknowledges that he is in the position of tenant, and he is consequently within any rule of preclusion or estoppel ordinarily applicable in connection with such relation. So an attornment sufficient for this purpose may be shown by the payment of rent by the person in possession^^i though such pay- ment is, as before stated,''*^ not conclusive of the relation of tenancy.*®^ An attornment by one tenant in common has been regarded as insufficient to subject his cotenant to the rule of pre- clusion.384 (2) Contrary decisions. In California, a view different from that ordinarily adopted has been asserted in two eases, in con- nection with actions to recover possession, to the effect that the rule of preclusion or estoppel does not apply if the lessee was Ala. 387; Buchanan v. Larkin, H6 Ala. 431, 22 So. 543; Mackin v. HaT- en, 187 111. 480, 58 N. B. 448; Doe d. Ball V. Lively, 31 Ky. (1 Dana) 60; Dixon V. Stewart, 113 N. C. 410, 18 S. B. 325; Williams v. Wait, 2 S. D. 210, 49 N. W. 209, 39 Am. St. Rep. 768; Locke v. Frasher's Adm'r, 79 Va. 409; BuUard v. Hudson, 125 Ga. 393, 54 S. E. 1322 (promise to pay rent) . 378 Gravenor v. Woodhouse, 1 Bing. 38, 2 Bing. 71; Hughes v. Watt, 28 Ark. 153; Bartlett v. Robinson, 52 Neb. 715, 72 N. W. 1053; Pearce v. Nix, 43 Ala. 183. 879 Doe d. Plevin v. Brown, 7 Adol. & E. 447. 380 Cooper v. Blandy, 1 Bing. N. C. 45; Knight v. Cox, 18 C. B. 645. 381 Rogers V. Pitcher, 6 Taunt. 202; Doe d. Pritchitt v. Mitchell, 1 Brod. & B. 11; Doe d. Harlow v. Wig- gins, 4 Q. B. 367; Mackin v. Haven, 187 111. 480, 58 N. E. 448; Killoreri v. Murtaugh, 64 N. H. 51, 5 Atl. 769; Derrick v. Luddy, 64 Vt. 462, 24 Atl. 1050. Payment of rent by the wife of the person in possession, if re- pudiated by him on learning of it, does not bind him. Bergman v. Roberts, 61 Pa. 497. 382 See ante, § 18. 383 Gravenor v. Woodhouse, 1 Bing. 38; Fenner v. Duplock, 2 Bing. 10; Knight V. Cox, 18 C. B. 645; Doe d. Shelton v. Carrol, 16 Ala. 148. In Hitchings v. Thompson, 5 Bxch. 50, defendants had distrained aa transferees of the reversion but failed to show a transfer to them, and it was held that evidence that the tenant had paid rent to an agent of defendants who, without disclos- ing his principals' names, paid over the rent to the latter, was evidence to go to the jury that defendants were the owners of the reversion, the payment by the tenant not being shown to have been made under the supposition that the agent repre- sented the former owners of the reversion, or with the intention that the latter should receive it. 884 Sulphine v. Dunbar, 55 Miss. 255. 474 PRE3CLUSI0N TO DENY TITLE. § 7$ already in possession.^^^ In later cases, however, in that state, the rule previously announced has been considerably limited, and it has been decided that while the person in possession ac- cepting a lease may dispute the lessor's title, he cannot do it by averment merely, and must show title in himself or "in those un- der whom he claims, "^se And the rule of that state allowing the person attorning to or accepting a lease from a third person to question the title of the lessor or attornee has been held to have no application to proceedings for unlawful detainer, in which the question of title is never involved,^®^ unless the acceptance of the lease or attornment was induced by fraud.^^* And when one made a deed of land, taking back a lease from the grantee, the instruments providing for a reconveyance upon payment of a debt to secure which the two instruments were executed, it was held that the lessor necessarily had all legal remedies for making the security effective, and the local rule referred to was conse- quently inapplicable.*®^ In a few states, other than California, the doctrine that one in possession accepting a lease or attorning is precluded, as fully as one who enters under a lease, from denying the landlord's title, in an action by the latter for possession, is not fully adopted. In Michigan it appears to be the rule that one who has title, as well as possession, at the time of the acceptance of a lease from another, may assert such title as against the latter,*®'' though he is estopped to deny the latter 's title if the title was not in him- self at that time,*®i the theory being that in the former case the person so in possession gains nothing by accepting the lease,, while in the latter case he does gain something. But it would seem 385 Tewksbury v. Magraff, 33 Cal. 174, 74 Pab. 761, and post, § 78 k (4). 237; Franklin v. Merida, 35 Cal. 558, 389 Knowles v. Murphy, 107 Cal. 95 Am. Dec. 129. 107, 40 Pac. Ill, 48 Am. St. Rep. 98. 386 De Peralta v. Glnochio, 47 Cal. sso Michigan Cent. R. Co. v. Bul- 459; Holloway v. Galllac, 47 Cal. lard, 120 Mich. 416, 79 N. W. 795 474; Abhey Homestead Ass'n v. WIl- (summary proceedings); Campau v. lard, 48 Cal. 614. Lafferty, 43 Mich. 429, 5 N. W. 648 387 Mason v. Wolff, 40 Cal. 246. (ejectment), explaining Fuller v. 388 Knowles v. Murphy, 107 Cal. Sweet, 30 Mich. 237, 18 Am. Rep. 122 107, 40 Pac. Ill, explaining David- (use and occupation). son V. Ellmaker, 84 Cal. 21, 391 Campau v. Lafferty, 43 Mich. 23 Pac. 1026. See, also, Simon 429, 5 N. W. 648. Newman Co. v. Lassing, 141 Cal. § 78 ' ATTORNMENT BY PERSON IN POSSESSION. 475 that he gains the same thing in both cases, immunity from suit by- one having no title, and as to whom, consequently, the title of the person already in possession is immaterial. In Minnesota a somewhat similar view has been adopted, to the effect that the lessee may deny the lessor's title in ease he isi already in posses- sion, for the reason that he thereby gains nothing, with the qual- ification that he cannot do so if the instrument of lease is under the seals of both partieSj^si" on the theory, apparently, that this dispenses with any necessity of consideration. It is difficult to understand how the matter of consideration can come in ques- tion in an action for possession, this necessarily involving, not contractual rights, but rights in rem. Apart from this there is, it is conceived, the equivalent of a consideration moving from the lessor or attornee in the case of a lease by or attornment to a person already in possession.392 In Iowa a distinction is suggested in this regard between the acceptance of a lease by one in possession as "a mere trespasser without any shadow of right" and such acceptance by one in possession under color of title.^^* But why mere color of title, derived from a third person, should affect the lessee's rights and liabilities as regards his lessor is not explained. In Kansas it is said that one already in possession to whom a lease is made is not estopped to deny the lessor's title unless he occupied "under and by virtue of the lease," and that this is a question for the jary.''*** Whether this means merely that he must have accepted the lease does not clearly appear. In Tennessee there are dicta questioning the applicability of the rule of estoppel or preclusion to the case of one already in possession who takes a lease.^^^ (3) The theory of the rule. Although the great weight of authority is as above shown, that one in possession who accepts a lease from another is precluded from questioning the title of that other in an action by the latter for possession, this view cannot be regarded as entirely satisfactory except when the ac- 39iaSage V. Halverson, 72 Minn. 393 Bowdish v. City of Dubuque, 38 294, 75 N. W. 229; Cleary v. O'Sliea, ^°'^^- ^*1- „„ ^„ „„ „. -,„r „r ,.T TIT -.ic -7-, A 394ireton v. Ireton, 59 Kan. 92, 52 72 Minn. 105, 75 N. W. 115, 71 Am. „ „, Pac. 74. St. Rep. 465. g,,, q^^^^^ ^ Elliott, 30 Tenn. (11 392 See ante, § 19 c, at note 101, Humph.) 183; Hammons v. McClure, post, at note 404-407. 85 Tenn. 65, 2 S. W. 37. 476 PRECLUSION TO DENY TITLE. § 78 tion. is one of a character in which the statute prohibits the trial of any question of title. The element of actual estoppel, so clear- ly apparent when possesson is given under the lease,^*^ is en- tirely absent when possession is not given, that is, the lessor is, in the latter case, not induced to take any action to his disad- vantage by reason of an implied representation by the lessee that he will relinquish the possession on the expiration of the tenancy. It has been said, in a criticism of the California cases above refer- red to, that were the rule otherwise than that usually enunciated, one might get into possession and then take a lease, ' ' and at the same time be secretly holding, or claiming to hold, an adverse title, * * * and suppress all notice of such adverse claims, with intent to mislead the landlord, and so continue until a con- venient time and opportunity arrives, when the evidence bearing on the controversy is lost or destroyed, or beyond the reach of his adversary, or witnesses have perished. "^^'^ But this statement assumes that the lessor or attornee has a good title, while the question involved in the decisions which we are discussing is as to the tenant's rights when the lessor has not a good title. The lessor or attornee would seem to be fully protected by imposing on the tenant the burden of showing the former's lack of title, and the lessee, rather than the lessor, would suffer by delay in assertion of the claim. So far a.s there is any misrepresentation in the transaction, it is quite as much on the side of the lessor as on that of the lessee, and the lessor has, it seems, all to gain and nothing to lose thereby. He acquires a right to rent or to recover in use and occupation for land in respect to which he has neither the possession nor the right to possession.^^s What has just been said with reference to the doctrine of es- toppel in connection with actions for possession might also, it is conceived, be said with reference thereto in connection with ac- tions arising from a distress. But it has in England apparently been decided that if one in possession of land attorns to another as tenant, the attornment vests in such other a reversion "by es- toppel," which will support a distress by him, though previously he had no legal title whatever.^^^ On what this estoppel is based 39S See ante, § 78 c (1). 398 gee the opinion of Sanderson, 39r Parrott v. Hungelburger, 9 J., in Franklin v. Merida, 35 Cal. 558, Mont. 526, 24 Pac. 14. And see Bige- 95 Am. Dec. 129. low, Estoppel (5th Ed.) 534. 399 Jolly v. Arhuthnot, 4 De Gex § 78 ATTORNMENT BY PERSON IN POSSESSION. 477 does not clearly appear, "the express repudiation by the court, in both of the cases referred to, of the view that the tenant was estopped to assert the lessor 's lack of title for the reason that such lack appeared on the face of the instrument containing the at- tornment, would suggest that, while the court had in mind the common-law doctrine of estoppel by deed, it did not regard this as the basis of its decision, that doctrine not applying "when the truth appears. "*°° It would seem then that the decisions must be regarded as based on the doctrine of estoppel in pais, but the applicability of such a doctrine, in the ordinary case, for the purpose of supporting distress, is, it is submitted, somewhat difficult to understand. In the particular cases referred to the person to whom the attornment was made loaned money on the strength thereof, the attornment being given as security collateral to a mortgage, but no particular reference is made to this fact, and the expressions of the judges would seem to be to the effect that if one in possession of land attorns to another, for any rea- son whatever, or without any reason, his mere acceptance of the position of tenant estops him from asserting that the person to whom he attorns has not a reversion sufficient to sustain a dis- tress. In the ordinary case, the person making the attorn- & J. 224; Morton v. "Woods, L. R. 3 slon of Lord Chelmsford in Jolly v. Q. B. 293. Arbuthnot, 4 De Gex & J. 224, that *oo Bigelow, Estoppel, c. 9, § 5. ' the fact that the true state of the Previous cases holding that there title appears on the face of the deed is no estoppel to deny the existence does not exclude the estoppel, say- of the relation when the truth ap- ing that that, being the decision of pears from the indenture on which the Lord Chancellor on appeal, is the estoppel is sought to be based a decision of a court of co-ordinate are distinguished by Kelly, C. B., in jurisdiction to which the court of Morton v. Woods, L. R. 4 Q. B. 293, exchequer chamber is bound to de- supra, on the ground that "they fer. In Jolly v. Arbuthnot, 4 De were either actions of covenant in Gex & J. 224, a power of distress was which the covenant must be enfor- expressly given, and so the lan- cible as an obligation at law, or guage of the Lord Chancellor there- actions of ejectment on a clause of in to the effect that a tenancy was re-entry, where it is perfectly clear created seems to have been uncalled there must be the legal estate in for. "Whatever weight the decision the plaintiff." But it would seem of the Lord Chancellor on appeal also to be "perfectly clear" that by may carry as authority in England, the ordinary rule a legal reversion such decision can in other jurisdic- is necessary to support a distress, tions be regarded merely as a de- The same judge refers to the deoi- clsion by a single judge, however 478 PRECLUSION TO DENY TITLE. § 78 ment cannot well be regarded as having induced the acceptance of the attornment or any other change of position on the part of the person to whom the attornment is made by a tacit under- taking, involved in the making of the attornment, not to assert, as against a distress by such person, a lack of an estate in him sufficient to sustain a distress, and in the absence of such induce- ment there appears to be no ground for an estoppel. It seems not improbable that the fact that in these particular cases the attornment was evidently made for the purpose of giving a right of distress, as additional security for a mortgage loan, may have disposed the court to recognize an estoppel, as resulting there- from, which it would not have recognized in the ordinary case of an agreement by one in possession to hold under another. It seems proper that, if one attorns in order to give a right of dis- tress, and induces the making of a loan by so doing, he should not subsequently be allowed to deny the right of distress. Such an attornment clause in connection with a mortgage might in fact be regarded as equivalent to an express grant of a right of distress. This basis for the estoppel would not, however, exist when the attornment is made without any reference to a possible distress, especially if the person to whom it is made does not change his position on the strength thereof. In the English cases referred to, the person in possession ex- pressly "attorned" to another. In legal effect, as we have be- fore remarked, an attornment is equivalent to an acceptance of a lease,*"! but, nevertheless, the use of the word "attorn" might perhaps, it seems, have an effect as creating a right of distress, when the mere acceptance of a conveyance by way of lease would not have that effect. Unless such a distinction is to be recognized between an attornment in express terms and the acceptance of a lease, the English decisions referred to are not in entire accord with others, to the effect that a lessee cannot distrain upon one to whom he has undertaken to make a sublease, if the so-called sublease is in reality an assignment, as transferring the entire leasehold interest.** ^ If a lessee may assert that there is no re- version in the lessor supporting the right of distress, for the rea- eminent he may be. The decision In strong court, both below and on ap- Morton v. Woods, L. R. 3 Q. B. 658, peal. L. R. 4 Q. B. 293, was, however, it 4oi See ante, § 19 c. must be conceded, by a singularly 402 See post; § 151, note 33. § 78 ATTORNMENT BY PERSON IN POSSESSION. 479 son that the latter 's estate at the time of the lease was too small, he should be allowed to assert that there is no reversion in the lessor for this purpose for the reason that the latter had no es- tate at the time of the lease. So far as actions for rent are concerned, the preclusion of the tenant to assert defects in the lessor's title in defense to such an action would seem to exist in cases in which he was previously in possession, as well as in those in which he entered under the lease. He has in effect agreed to pay the rent for the undisturbed enjoyment of the possession, and, having that, he should pay it. Occasionally it has been asserted that in such case of a lease to one already in possession, or of an attornment by him, there is, if the lessor or attornee has no title, no consideration to support the liability for rent, and that consequently such lack of title may be asserted in defense to a claim for rent.*°^ Such a consideration would, however, in most jurisdictions, it is conceived, be furnished by the liability upon the covenant for quiet enjoyment which arises from the creation of the relation of landlord and tenant,*"* that is, the lessor or attornee, by the very act of accepting the position of landlord, furnishes a consideration for the promise to pay rent. Furthermore, even though the lessor has no title "to the land, the fact that he goes to the trouble of executing a written lease is, it is conceived, a sufficient consideration to sup- port the promise to pay rent. The case is analogous to that of 403 Puller V. Sweet, 30 Mich. 237, demanded of the person in posses- 18 Am. Rep. 122 ; Clary v. O'Shea, 72 sion of the premises that he attorn Minn. 105, 75 N. W. 115, 71 Am. St. to him, which he did by accepting Rep. 465; Grim v. Nelms, 78 Ala. a lease, it was held that the person 604; Snyder v. Guthrie, 21 Hun (N. in possession was not thereby pre- -Y,) 341. eluded, in an action for rent, from In Prevot v. Lawrence, 51 N. Y. attacking the receiver's right to 219, and Derrick v. Luddy, 64 Vt. make the lease. The court says 462, 24 Atl. 1050, it is decided that that "the receiver, having given no one attorning to another cannot as- bond, had no legal right to the pos- •sert the latter's lack of title in de- session, and the defendant being in tense to a claim for rent. In the possession as of his own right when first of these case the lease was that demand was made on him, it Tinder the seals of both parties. cannot be said, in law, that in mak- In Phillips V. Smoot, 12 D. C. (1 ing this lease he took possession Mackey) 478, where a receiver, with- under the receiver; all he did was out qualifying by giving bond as re- to use words, he did not act." quired by the order appointing him, "»< See post, § 79 a. 480 PRECLUSION TO DENY TITLE. § 7g a promise to pay money for which a sufficient consideration is furnished by the promisee's release of all his rights in the land, although he has no rights therein, "for it puts him to the trouble of making a release."*"^ It does not seem, however, that the making of a mere oral lease or the oral acceptance of an at- tornment could be regarded as involving such trouble to the lessor or attornee as to furnish a consideration. But even in such ease, if the' making of the lease or acceptance of the attornment ' involves, as it usually would involve, a forbearance by the lessor or attornee to assert a claim to immediate possession which is honestly believed by him to exist, this would, in many jurisdic- tions, be regarded as a sufficient consideration, while in others this would be the case provided his claim could be regarded as reasonably doubtful in fact or in law>°® Upon the whole, it seems, in the majority of cases, there could be found some con- sideration to support a promise by one already in possession to pay rent. Even apart from such promise, one who accepts a lease reserving rent would, at common law, be liable therefor by rea- son of privity of estate, as distinguished from privity of con- tract,*"'' and it does not seem that such liability could be affected by the fact that at the time of the making of the lease the lessee was already in possession. (4) Fraud in procuring attornment. There are dicta in a number of cases to the effect that fraud or imposition in procur- ing the acceptance of a lease or an attornment by a person al- ready in possession will render the rule of estoppel or preclusion inapplicable,*"* as well as express decisions to that effect.*''^ It *05Holt, C. J., Thoi-p V. Thorp, 12 Am. Dec. 708; Loring v. Harmon, 84 Mod. 459, quoted In Pollock, Con- Mo. 123; Jackson v. Spear, 7 "Wend, tracts (6tli Ed.) 459. And see to the (N. Y.) 401; Ingraham v. Baldwin, 9 same effect Mullen v. Hawkins, 141 N. Y. (5 Seld.) 45; Dixon v. Stew- Ind. 363, 40 N. E. 797; Kerr v. Lucas, art, 113 N. C. 410, 18 S. B. 325; Wil- 83 Mass. (1 Allen) 279; Sykes v. Hams v. Wait, 2 S. D. 210, 49 N. W. Chadwick, 85 XT. S. (18 Wall.) 141. 209, 39 Am. St. Rep. 768. *06 See Wald's Pollock, Contracts 409 Doe d. Plevin v. Brown, 7 Adol. (Williston's Ed.) 214, 215; 9 Cycle- & E. 447; Gravenor v. Woodhouse, 1 pedia Law & Proc. 342. Bing. 38 ; Lyon v. Washburn, 3 Colo. 4orSee post, § 171 a. 201; Ball v. Lively, 25 Ky. (2 J. J. *08 Lyon V. Washburn, 3 Colo. 201; Marsh.) 181; Suddarth v. Robert- Doe d. Ball V. Lively, 31 Ky. (1 son, 118 Mo. 286, 24 S. W. 151; Dana) 60; Carter v. Marshall, 72 111. Young v. Heffernan, 67 111. App. 609 ; Tison v. Yawn, 15 Ga. 491, 60 354 ; Brown v. Dysinger, 1 Rawle § 78 ATTORNMENT BY PERSON IN POSSESSION. 481 is, however, impossible to derive therefrom any positive criterion as to what constitutes fraud or imposition for this purpose. Con- ceding the existence of the rule so frequently stated,*!^ that one in possession who accepts a lease or attorns is precluded to deny the lessor's or attornee's title, it is apparent that the mere fact that one having no title obtaias such acceptance or attornment from the person in possession does not show such fraud or im- position.*" So it has been said that "the mere fact that the ten- ant has a better title than his landlord does not of itself raise the presumption that the lease was a fraud or accepted by mistake. The lease is not rendered void by proving title in the lessee. To make the law otherwise would be to say that the tenant shall not set up title in himself when he has none, and that the lease shall be no evidence of the landlord's rights except when he can prove them without it. "*i2 The fraud necessary for this purpose must have been perpetrat- ed in the course of the creation of the- relation of tenancy, and that the person from whom the lease was accepted, or to whom the attornment was made, procured the conveyance, under which he claimed at the time of making the lease, by fraud upon his gran- tor 413 OP jji fraud of his grantor's creditors,*^* is immaterial in this respect. It has been decided that the fact that the lease ac- cepted by the person in possession, owing to the fraud of the les- sor, omitted a provision which had been agreed upon, giving the lessee a right to piu-chase, did not exclude the estoppel, the fraud (Pa.) 409; Baskin v. Seechrist, 6 Pa. (Code 1907, § 4271) that in such pro- 154; Evans v. Bidwell, 76 Pa. 497; ceedings no inquiry into the merits Jenckes v. Cook, 9 R. 1. 520; Glvens of the title are permissihle. V. Miillinax, 4 Rich. Xaw (S. C.) 590, -iio See ante, 78 t (1). 55 Am. Dec. 706; Cross v. Freeman, «i It is so stated in People's Ixtan 19 Tex. Civ. App. 428, 47 S. W. 473; & Bldg. Afis'n v. Whitmore, 75 Me. Allison v. Casey, 63 Tenn. (4 Baxt.) 117. 587; Shultz v, Elliott, 30 Tenn. (11 412 Black, C. J., in Thayer v. So- Humph.) 183; Alderson v. Miller, 15 ciety of United Brethren, 20 Pa. 60, Grat. (Va.) 279. quoted and approved in Mackln v. In Nicrosi v. Philippi, 91 Ala. 299, Haven, 187 111. 480, 58 N. E. 448. 8 So. 561, it is decided that in un- us Williams v. Wait, 2 S. D. 210, lawful detainer proceedings against 49 N. W. 209, 39 Am. St. Rep. 768. one who accepted a lease from plain- m Smith v. MoCurdy, 3 Pbila. tiff, it cannot be shown that such (Pa.) 488; Palmer v. Melson, 76 Ga. acceptance was induced by fraud, 803. in view of the statutory provision L. and Ten. 31. 1 482 PRECLUSION TO DENY TITLE. § 78 in this case not affecting the operation of the instrument as a lease.^i" So far as regards an action for rent or on any covenant of a lease made to one already in possession, the right to assert fraud as a defense is independent of the validity of the lessor's title. As we have before seen,*i^ the fact that the acceptance of a lease was procured by fraud constitutes a defense to an action for rent or upon any covenant, provided the lessee promptly returns what he has procured by reason of the lease, that is, the possession. If, however, the lessee has not obtained possession by the taking of the lease, as when a lease is made to one already in possession, or, as it may be otherwise expressed, an attornment is made by such a person, there is nothing for him to return, and he may con- sequently assert the fraud in defense to an action for rent or on a covenant while still retaining possession. And this seems the only difference, as regards such an action, between the effect of fraud when the lessee was previously in possession and when he was not. As to the effect of the lessor's lack of title, the fraud may consist of false representations as to title, but, provided this is not the character of the fraud, it is quite sufficient as a defense or ground of rescission without reference to such lack of title, and the validity or invalidity of the lessor's title seems to be per- fectly immaterial. In the case of an action by the lessor for possession, the exist- ence of fraud on the part of the lessor in procuring the accept- ance of the lease cannot prevent recovery by him, if the possession was obtained from him by the lessee.*^'' If the possession was not obtained from him, the lessee being already in possession, the only possible ground on which the lessor could succeed in the action would be the fact that the lease had been accepted by the defend- ant, that is, an attornment had been made, and that, as we have seen, is ordinarily sufficient, by the weight of authority, to prevent the defendant from questioning the lessor's title.*^* But if the ac- ceptance of the lease (the attornment) was procured by the fraud of the lessor, it may be disregarded by the lessee (the attornor), and he may consequently question the lessor's title as if the rela- tion of tenancy had never been created between them. In other 415 Forgy V. Harvey, 151 Ind. 507, 417 See ante, § 78 h. 51 N. E. 1066. «8See ante, § 78 k (1). 416 See ante, § 38 b. § 78 ATTORNMENT BY PERSON IN POSSESSION. 483 words, in the case of an attornment or acceptance of a lease by one already in possession, as a result of the lessor's fraud, the lessee may question the lessor's title in an action by the lessor to recover possession, although he cannot do so if he obtains pos- session by virtue of the lease, even though the acceptance of the lease was procured by fraud. (5) Attornment under mistake. There are numerous dicta to the effect that the rule of estoppel or preclusion does not apply if the acceptance of the lease or attornment was by mistake,*!^ and also a number of decisions to that effect.**" Conceding that a mistake on the part of the lessee or attornor alone will always have such an effect, there are, it would seem, but few cases in which the estoppel could ever operate against one previously in possession, since such a person is not likely to agree to hold under another having no title, unless under the mistaken impres- sion that such other has a valid title, and the effect would bo that one in possession who accepts a lease or attorns to another would be precluded from denying such other's title only if, at the time of such acceptance or attornment, he knew of or suspect- ed such lack of title and consented to hold under the other mere- ly to avoid litigation, however unfounded this might be. The decisions just cited in which this exception has been applied 41B See Tarrls v. Houston, 74 Ala. ble) ; Pacific Mut. Life Ins. Co. v. 162; Lyon v. Washburn, 3 Colo. 201; Stroup, 63 Cal. 150; Anderson v. TIson V. Yawn, 15 Ga. 491, 60 Am. Smith, 63 111. 126; Shearer v. Win- Dec. 708; Carter v. Marshall, 72 111. ston, 33 Miss. (4 George) 149; Child 609; Dixon v. Stewart, 113 N. C. 410, v. Chappell, 9 N. Y. (5 Seld.) 246 18 S. E. 325; Jackson v. Spear, 7 (semble); Petterson v. Sweet, 13 Wend. (N. Y.) 401; Ingraham v. 111. App. (13 Bradw.) 255; Michigan Baldwin, 9 N. Y. (5 Seld.) 45; Isaac Cent. R. Co. v. Bullard, 120 Mich. V. Clarke, 2 Gill (Md.) 1; Loring v. 416, 79 N. W. 635; Glvens. v. Mul- Harmon, 84 Mo. 123. linax, 4 Rich. Law (S. C.) 590, 55 In Wiggin v. Wiggin, 58 N. H. Am. Dec. 706; Berridge v. Glassey 235, it is said that "a tenant who (Pa.) 7 Atl. 749 (semble); De Wolf accepts a lease under an entire v. Martin, 12 R. I. 533; Shultz v. misapprehension of its purport and Elliott, 30 Tenn. (11 Humph.) 183; effect is not estopped to deny the Washington v. Conrad, 21 Tenn. (2 title of his landlord." Just what ia Humph.) 562; Hammons v. Mc- meant by this does not clearly ap- Clure, 85 Tenn. 65, 2 S. W. 37 ; Swift pear. v. Dean, 11 Vt. 323, 34 Am. Dec. 693 ; *2opearce v. Nix, 34 Ala. 183; Queen v. Hall, 6 Can. Exch. 145. Cain v. Gimon, 36 Ala. 168 (sem- 484 PRECLUSION TO DENY TITLE- § 78 would seem to support this view, they being ordinarily cases in whicli the person attorning or accepting a lease was relieved from the operation of the ordinary rule on the ground that he had acted Tinder a mistake as to the rights either of himself or of the person whom he acknowledged as landlord. But it is somewhat difficult to harmonize this v^iew with the numerous deeisions*^' upholding the estoppel against one previously in possession, since, as just suggested, it seems that, in accepting the position of tenr ant, he must ordinarily have done so under a mistake as to the rights of the person whom he acknowledged as landlord.^^^ In Massachusetts it appears to have been clearly decided that the fact that the attornment was under the erroneous supposition that the title was in the person to whom it was made does not enable the person attorning to dispute the other's title.*^* The cases above cited appear to be to the effect that the mistake of the lessee or attornor, alone, as to the lessor's title, is suffi- cient, in this connection, without any question as to whether the lessor or attornee was also under the same mistake or knew of the other's mistake. The general rule seems to be, though the cases are by no means clear or consistent, that a mistake as to a private right of ownership is sufficient to entitle one of the parties to a transaction to relief, either if the mistake was mutual, or if such party alone acted under a mistake and the other party knew that he was so aeting.*^* it does not seem that the eases above cited can be said to be in harmony with such a rule, or to be the reverse, since they do not, in' fact, discuss the nature of the mis- take entitling a lessee to relief as against Ms lessor. The decisions in England as to the exclusion of the rule of es- toppel or preclusion by reason of the acceptance of a lease or at- tornment under mistake are quite as vague and unsatisfactory as those in this county. The rule there appears to be that when one who has entered under a lease subsequently attorns to or takes a lease from a person other than the original lessor, under the 421 See ante, § 78 k (1). «3 Hawes v. Shaw, 100 Mass. 187. 422 See, to the effect that the mere See, also, Bowdish v. City of Du- fact that the person attorning has buque, 38 Iowa, 341; Baak of Mon- the superior title does not itself treal v. Gilchrist, 6 Oat. App. 659. shpw that the attornment was under 424 gee Pollock, Contracts (6th. mistake, cases cited ante, notes 409, EJd.) 473, 476; Kerr, Fraud & Mls- 410. take (3d Ed.) 433 et seq., 442, 449; § 78 ATTORNMENT BY PERSON IN POSSESSION. 485 impression that the reversionary estate is still existent and has passed to snch other, although as a matter of fact snch estate has come to an end/^'s or, if still existent, is not vested in such other,*26 lie may show the true state of the title as against such other. And so it has been held that an agreement by a sublessee, upon the expiration of the sublessor's interest, to pay rent to a person under whom such sublessor had held, which agreement was made under the mistaken impression that such person's inter- est had not expired, did not preclude him, as against such per- son, from showing that the latter had no longer any title.,*^^ On the other hand it was said that the tenant cannot show that the person to whom he paid the rent, under the impression that such person was the assignee of the reversion, was not such as- signee, but he must also show who is the real assignee and that the latter has such title as would entitle him to a verdict in ejectment, and, accordingly, it was held that the tenant could not refuse to continue paying rent to one named as devisee in the will of the lessor on the ground that the will had been questioned"- as not being properly executed.*^^ And in another case, it was decided that a tenant who, on the lessor's death, agreed to hold of one named as devisee in the lessor's will, could not show that the will was void for mental incapacity .^^^ A distinction may perhaps be suggested between the English cases above referred to, in which the attornment was under the mistaken belief that the person to whom it was made was either the assignee of the reversion or one originally in privity with the owner of the reversion, and a. case in which the person attorning mistakenly credited the person to whom he attorned with a su- perior title in no way connected with that of the lessor. It does not appear that the estoppel has ever, in England, been excluded owing to a mistake of the latter character, and in one case where 20 Am. & Eng. Enc. Law (2d Ed.) *28 Carlton v. Bowcock, 51 Law T. 818, 819. (N. S.) 659. 425 Fanner v. Duplock, 2 Bing. 10. *29 Doe d. Marlow v. Wiggins, 4 Q. «8 Rogers v. Pitcher, 6 Taunt. B. 367. In this case Patteson, J., 202; Gregory V. Doidge, 3 Bing. 474; says: "There was no mistake of Knight V. Cox, 18 C. B. 645 (sem- facts In this case. T. was devisee, ble); Dee d. Higginhotham v. Bar- whether the will was sustained or ton, 11 Adol. & E. 307. not." The other judges do not men- 427CIaridge v. Mackenzie, 4 Man. tion "mistake." & G. 143. 486 PRECLUSION TO DENY TITLE. § 78 a lessee had attorned to B on his lessor's bona fide statement that B had convinced him that he, B, was the real owner of the prop- erty, it was held that the lessee was precluded from showing that a third person was owner.*^" Conceding that, in the particular case, there is such a mistake as to invalidate the attornment or acceptance of the lease by one in .possession, the effect is, it seems, the same as when the attornment or acceptance of the lease is procured by fraud,**i that is, to relieve the lessee from his contractual liabilities with- out respect to whether the lessor's title is valid or invalid, and to enable the lessee, in an action by the lessor for possession, to defend on the ground that there is an outstanding paramount title. 1. Persons subject to the rule of preclusion. Not only is the original lessee ordinarily precluded from denying the validity of the lessor's title at the time of making the lease, but all persons claiming or holding by, through or under the lessee are also so precluded.*^2 ^'ere this not so, it is plain, the rule of preclusion would be of little benefit to the landlord. In accordance with this principle, the assignee of the lessee is precluded to the same extent as the lessee himself from denying the lessor's title.*^* And the fact that the assignment purports *3oHall V. Butler, 10 Adol. & E. v. Dove, 7 Or. 467; Thomson t. 204. And see Doe d. Jackson v. Peake, 7 Rich. Law (S. C.) 353; Wilkinson, 3 Barn. & C. 413. Adams v. Shirk, 55 C. C. A. 25, 117 *3i See ante, at notes 416-418. Fed. 801. *32 Russell V. Irwin's Adm'r, 38 433 Morris v. Wheat, 11 App. D. C. Ala. 44; Blakeney v. Ferguson, 20 201; Ballance v. Peoria, 180 111. 29, Ark. 547; Rose v. Davis, 11 Cal. 54 N. B. 428; Byrnes v. Douglass, 23 133; Standley v. Stephens, 66 Cal. Nev. 83, 42 Pac. 788; White v. Bar- 541, 6 Pac. 420; Owen v. Brookport, low, 72 Ga. 887; Den d. Lunsford v. 208 111. 35, 69 N. E. 952; Sexton v. Alexander, 20 N. C. (3 Dev. & B. Carley, 147 111. 269, 35 N. E. 471; Law) 166; Earle v. Hale, 31 Ark. Doty V. Burdick, 83 111. 473; Rat- 470; Leshey v. Gardner, 3 Watts & cliff V. Bellfonte Iron Works Co., 87 S. (Pa.) 314, 38 Am. Dec. 764; Der- Ky. 559, 10 S. W: 365; Chambers v. rick v. Luddy, 64 Vt. 462, 24 Atl. Pleak, 36 Ky. (6 Dana) 436, 32 Am. 1050; Stagg v. Eureka Tanning £ Dec. 78; Newman v. Mackin, 21 Miss. Currying Co., 56 Mo. 317; Rector v. (13 Smedes & M.) 383; Den d. Har- Gibbon, 111 U. S. 276, 28 Law. Ed. ker V. Gustin, 12 N. J. Law (7 Halst.) 427; McWhorter v. Stein (Ala.) 39 42; Springs v. Schenck, 99 N. C. 551, So. 617; Jones v. Todd, 22 U. C. Q. 6 S. E. 405, 6 Am. St. Rep. 552; Gen- B. 37; Cahuac v. Scott, 22 U. C. C. P. in V. Ingersoll, 2 W. Va. 558; Jones 551. § 78 PERSONS SUBJECT TO RULE. 487 to transfer a fee simple interest is immaterial in this connection.*** According to at least one decision, it is immaterial that the trans- feree by a conveyance purporting to convey a fee simple has no notice that his grantor is merely a tenant under a lease,* ^^ while there is another decision to the contrary.^^s The question is one which would arise when one who has a good title in fee sim- ple attorns to, or takes a lease from, another, and subsequently conveys in fee simple to one who purchases on the strength of the fee simple title without knowledge of the attornment or lease, and also when one in possession under a lease procures the para- mount title in fee, and then conveys to another who purchases without notice of the lease. Occasion for any difficulty in this regard would be to a great degree eliminated by adopting the view, which apparently obtains in England, and also perhaps in some other jurisdictions, that, in an action for possession by a landlord against his tenant, the latter is not estopped to assert a paramount title in himself.^*'' An heir of the tenant, who, on the latter 's death, continues the possession of the tenant, standing solely on his right, is subject to the rule of preclusion,*^* as is one who undertakes to defend an ejectment suit as being the landlord of the original defendant therein.**^ A subtenant, like an assignee, is ordinarily precluded from questioning the title of the head landlord.**" *3iRose V. Davis, 11 Cal. 133; And see to the same effect Miller Phillips v. Rothwell, 7 Ky. (4 v. South, 12 Ky. Law Rep. 351, 14 Bibb) 33; Lane's Lessee v. Osment, S. W. 361. The fact that the pos- 17 Tenn. (9 Yerg.) 86; White v. session is taken under the tenant Barlow, 72 Ga. 887; McLennan v. seems to be the material consid- Grant, 8 Wash. 603, 36 Pac. 682; Bal- eration, rather than the fact of heir- lance v. Peoria, 180 111. 29, 54 N. B. ship. An heir, as such, has no title 428; Lockwood v. Walker, 3 McLean, to leasehold property. 431, Fed. Gas. No. 8,451 (semble). *39 Doe d. Knight v. Smythe, 4 *85 Lane's Lessee v. Osment, 17 Maule & S. 347; Doe d. Manvers v. Tenn. (9 Yerg.) 86. There is at Mlzem, 2 Moody & R. 56. least a dictum to that effect In Mc- In Isler v. Floy, 66 N. C. 547, It Is Lennan v. Grant, 8 Wash. 603, 36 decided that this principle is modl- Pac. 682. fled by the adoption of a statute re- 436 Thompson v. Clark, 7 Pa. 62. quiring or permitting all persons And see White v. Barlow, 72 Ga. 887. claiming title to be made parties. 43T See ante, § 78 i. **» Barwick v. Thompson, 7 Term 438 Lewis V. Adams, 61 Ga. 559. R. 488; Patten v. Deshon, 67 Mass. 488 PRECLUSION TO DENY TITLE. § 78 A licensee of tke lessee, or of one claiming imder the lessee, is likewise precluded to the same extent as is the lessee from denying the title of the landlord in defense to an action by the latter for possession.^*! There is a modem English decision, however, to the effect that one making use of the premises by the tenant's license is not precluded from denying the landlord's title as a means of showing the invalidity of a distress made by the land- lord on the goods of such licensee, in an action for damages on account of the conversion of such goods.**^ Conceding that ordi- narily the tenant is precluded from denying the landlord's title for the purpose of invalidating a distress,**^ it is not apparent why one on the premises by his license should not also be so pre- cluded. If such third person replevies the goods he is, by force of the statute of 11 Geo. 2, c. 19,*** precluded from asserting a lack of title in the lessor as against the landlord's avowry ;**5 and other forms of proceeding, involving the legality of the dis- tress, such as an action for conversion, might well be regarded as within the equity of the statute. The rule of preclusion has also been applied as against one who obtained possession from the tenant under summary proceedings, (1 Gray) 325; Stewart v. Miles, 166 Graves, 80 Ala. 416; Fordyce v. Mo. 174, 65 S. W. 754; Den d. Luns- Young, 39 Ark. 135. ford v. Alexander, 20 N. C. (3 Dev. **i Stewart v. Miles, 166 Mo. 174, & B. Law) 166; Bonds v. Smith, 106 65 S. W. 754; Doe d. Kluge v. Lache- N. C. 553, 11 S. E. 322; Stewart v. nour, 34 N. C. (12 Ired. Law) 180; Keener, 131 N. C. 486, 42 S. E. 935; Dills v. Hampton, 92 N. C. 565. A Graham v. Moore, 4 Serg. & R. (Pa.) member «f the lessee's family who 467; Milhouse v. Patrick, 6 Rich, aids in paying the rent is said to be Law (S. C.) 353; Newman v. Mac- estopped. Hodgkin v. McVeigh, 86 kin, 21 Miss. (13 Smedes & M.) 383; Va. 751, 10 S. E. 1065. Reed v. Shepley, 6 Vt. 602; Beck v. m Tadman v. Henman [1893] 2 Q. Minnesota & Western Grain Co., 131 B. 168. Iowa, 62, 107 N. W. 1032, 7 L. R. 4*3 See ante, § 78 c (5). A. (N. S.) gSO. 4«See ante, § 78 c (5). A sublessee is precluded from 44b Sylllvan v. Stradling, 2 Wils. denying the title of his immediate 108; Smith v. Aubrey, 7 IT. C. Q. B. lessor to the same extent as an 90. In both of these cases the per- original lessee. Burnett v. Rich, 45 son whose goods were seized under Ga. 211; Coburn v. Palmer, 62 Mass. the distress and who was held to be (8 Gush.) 124; Stoops v. Devlin, 16 precluded from questioning the Mo. 162; Tilyou v. Reynolds, 108 N. landlord's title was a person other Y. 558, 15 N. E. 534; Wright v. than the tenant. § 78 PERSONS SUBJECT TO RULE. 489 based on a lease by him to the tenant subsequent to that under which the tenant entered, he in effect holding possession under the tenant as regards the original landlord.**® A tenant 's wife who lives upon the land with her husband, and whose entry thereon is by reason of her husband's right of pos- session, would seem to be within the rule of preclusion or estoppel, and it has been so decided.**^ And it has likewise been decided that the rule extends to a husband who enters in right of his wife.**^ Were it otherwise, any rule of estoppel or preclusion could, in the case of a married tenant, be rendered practically nugatory. In one case, however, it has been held that the wife of the tenant may attack the title of the landlord.**^ The surety of the lessee for the payment of rent is precluded to the same extent as the lessee to deny the lessor's title, wjien sued upon his contract of suretyship.*^'' The rule of preclusion, it has been held, may be asserted to its full extent against one who, claiming a title paramount to that of the lessor, instead of bringing an action to assert his rights, procures possession from the tenant and then undertakes to as- sert his claim in an action by the landlord for rent or posses- sion.*^i So far as an action for possession is concerned, how- <« Cox v. Cunningham, 77 111. 545; is, according to the cases before re- Ballasce v. Fortier, 8 111. (3 Gilm.y ferred to, sufficiently in privity with 291. him for the application of the rule *" Russell V. Irwin's Adm'r, 38 in question in an action hy the land- Ala. 44; Taylor v. Eckford, 19 Msa. lord for possession. She is as much (11 Smedes & M.) 21. in privity with him as an ordinary A widow of the tenant remaining licensee, it would seem (ante, at in possession is estopped. Love v. note 441>. It is submitted that the Dennis, Harp. Law (S. C.) 70; Den character of the proceeding involved d. BufEerlow v. Newson, 12 N. C. (I in this cjkse, a proceeding by the Dev. Law) 2(>8. wife to cancel a deed, did not call *« Hagar v. Wikoff, 2 Okl. 580, 39 for the application of any rule of Pac, 281. estoppel or preclusion. Ante, § 78 "flShew V. Call, 119 N. C. 450, 2G c (6). S. E. 33, 56 Am. St. Rep. 678. The *5o Oliver v. Gary, 42 Kan. 623, 22 theory of the decision is that the Pac. 733; Bwing v. Cottman, 43 wife is not bound because she is Wkly. Notes Cas. (Pa.) 525. not in privity with her husband. «« Doe d. Bullen v. Mills, 2 Adol. "Privity" is such an elastic term & E. 17; Doe d. Haden v. Burton, 9 that it is frequently diiEcult to say Car. & P. 254; White v. Nelles, 11 whether it exists or not. One who Can. Sup. Ct. 587; Doe d. Miller v. obtains possession from her husband Tiffany, 5 U. C. Q. B. 79; Kepley v. 490 PRECLUSION TO DENY TITLE. | 7g ever, the person so in possession might, it is submitted, be allowed to prove his paramount title in that action rather than be re- quired to bring another action for the purpose. He would, in either case, have the burden of proving his title, and, this being so, it would seem to be immaterial to the landlord whether he does so as plaintiff or defendant.*^i" The fact that the lessee, or one claiming under him, is non sui juris, is evidently no reason for allowing him, after the expiration of the term, to retain the possession which was acquired under the lease on the ground of defects in the lessor 's title.*^^ That is, he is precluded from questioning such title to the same extent as any other tenant. The liability of such a person for rent, elsewhere considered,*''^ is presumably likewise independent of the question of the lessor's title. m. Persons entitled to assert the rule of preclusion — (1) Transferees of reversion. The lessee, or the person in pos- session under the lessee,*^* is precluded from asserting defects in the lessor's title as against a transferee of the lessor to the same extent as against the lessor himself,*^^ ^nd this is so not only when the reversion is transferred by voluntary act, but also when it passes by sale under judicial process or decree,*^® or by Scully, 185 111. 52, 57 N. E. 187; Rox- 552; Brunson v. Morgan, 84 Ala. 598, bury V. Huston, 39 Me. 312; Gallig- 4 So. 589; Christy v. PuUiam, 17 her V. Connell, 23 Neb. 391, 36 N. W. 111. 59; McFarlane v. Klrby, 28 App. 566; Bertram v. Cook, 32 Mich. 518; D. C. 391; Brenner v. Bigelow, 8 Cox V. Cunningham, 77 111. 545; Kan. 496; Granger v. Parker, 137 Fleming v. Mills, 182 111. 464, 55 Mass. 228; Benedict v. Morse, 51 N. E. 373; Bonds v. Smith, 106 N. C. Mass. (10 Mete.) 323; Den d. Luns- 553, 11 S. E. 322; Swan v. Busby, ford v. Alexander, 20 N. C. (3 Dev. 5 Tex. Civ. App. 63, 24 S. W. 303; & B. Law) 166; People v. Angel, 61 Stewart v. Roderick, 4 Watts & S. How. Pr. (N. Y.) 157; Hackney v. (Pa.) 188, 39 Am. Dec. 71; Jones Mclninch, 79 Neb. 128, 112 N. W. V. Tatham, 20 Pa. 398; Pulford 296; Whalin v. White, 25 N. Y. 462; V. Whicher, 76 Wis. 555, 45 N. W. Rogers v. Hill, 3 Ind. T. 562, 64 S. W. 418. 536; Funk's Lessees v. Kincaid, 5 *5iaSee ante, § 78 1 (2). Md. 404; Bohn v. Hatch, 39 N. Y. 452 In Wilson v. James, 79 N. C. St. Rep. 404, 15 N. Y. Supp. 550; 349, it was decided to be Imma- Barton v. Learned, 26 Vt. 102. terial that the lessee, being a slave, «6 Thomson v. Peake, 7 Rich, was unable to contract. Law (S. C.) 353; Murphy v. Teter, *53See ante, § 21. 56 Ind. 545; Boynton v. Jackway, 10 454 See ante, § 78 1. Paige (N. Y.) 307; Siglar v. Malone, 455 Henley V. Branch Bank, 16 Ala. 22 Tenn. (3 Humph.) 16. § 78 PERSONS ENTITLED TO ASSERT RULE. 491 inheritance.^^'' And as against a subsequent lessee of the same landlord, suing for possession upon the termination of the prior tenancy, the prior tenant is precluded from questioning the les- sor's title at the time of the first lease.^^^ The rule of preclusion has also been applied in favor of an ad- ministrator of the lessor in behalf of whom an action, instituted by the intestate against the tenant, has been continued,*^^ and in favor of the administrator as against the lessee of his intestate, where the statiite authorized him to sue on the intestate 's lease,*** and as against a lessee of the widow of the intestate.**^ And the administrator de bonis non has been allowed to assert the rule as against one who entered under a lease from the administrator, made on behalf of the estate.**^ Though the tenant is precluded from denying the lessor's title as against a transferee of the reversion to the same extent as he is precluded from denying it as against the lessor himself, he is not precluded from denying that one claiming the rights of a reversioner is such, owing to the fact that, though he form- erly had the reversion, he has disposed thereof,**^ or that he never acquired it.*®* (2) Mortgagees. In jurisdictions where the common-law rule that a mortgagee has the legal title is still recognized, the tenant is no doubt precluded from denying the lessor's title as against one to whom the reversion has been mortgaged, to the same extent as against one claiming under an absolute convey- ance,*®5 while he may, as against the mortgagor, show that the legal title has passed to the mortgagee.**® But such is not the *5TBlantire v. Whitaker, 30 Tenn. 34 Pac. 315; Pearce v. Pearce, 83 111. (11 Humph.) 313; Morris v. Wheat, App. 77. 11 App. D. C. 201; Williams v. Mc- *" Clarke v. Clarke, 51 Ala. 498. Aliley, Cheves Law (S. C.) 200; Mil- ^^ Bishop v. Lalouette's Heirs, 67 ler V. South, 12 Ky. Law Rep. 351, 14 S. W. 361; Weeks v. Birch, 69 Ala. 197, it is apparently decided that the estoppel exists in favor of heirs as against one claiming under Law T. (N. S.) 759; Smith v. Hard- ^ j^^^^ ^^ ^^^ administrator, wick, 28 Ky. Law Rep. 615, 89 S. «2 Norwood v. Kirby's Adm'r, 70 W- 731. ^la 397 458 Gage V. Campbell, 131 Mass. ^^g ggg p^^j. g ^g ^ 566; Ball v. Chadwick, 46 111. 28; 464 See post § 78, o. Rennie v. Robinson, 1 Bing. 147. 455 ggg p^gj^ | j^g g 450 Ronaldson v. Tabor, 43 Ga. 230. 400 Niles v. Ransford, 1 Mich. 338, 460 state V. Votaw, 13 Mont. 403, 51 Am. Dec. 95. 492 PRECLUSION TO DENY TITLE. § 78 case in jurisdictions where the mortgagee has merely a lien and not the legal title,*^^ and the tenant may, it has been decided, show that one claiming under a conveyance in terms absolute is in fact a mortgagee and so not entitled to the possession upon the expiration of the term.^^* In one state, in which equitable defenses are allowed, it was decided that, in an action by the transferee under an absolute conveyance of the reversion, it could be shown by the tenant that the conveyance was made merely as security, and that the debt secured had been paid, so that such transferee had no longer any interest in. the reversioners Although, in the particular jurisdiction, a mortgage passes the legal title, one claiming under a mortgage prior to the lease is not a transferee of the reversion in any sense, but is a claimant under a paramount title,* ^* and he cannot, in suing the lessee for possession, assert that the latter is estopped or precluded to deny his title.*" (3) Persons non srai juris. It would seem that the fact that the lessor is non sui juris, a married woman, an infant, or an in- sane person, would be a reason for the application, with the great- est strictness, of the ordinary rule of preclusion, so as to protect the interests of one who is, in the eye of the law, unable to pro- tect them himself, and in some cases it has been applied in favor of such a person.*^2 jn ong or two cases, however, the courts have refused to apply the rule in favor of such a person on the theory 4C7 Brenner v. BIgelow, 8 Kan. 496. it was decided that the defendant In *6s TiUeny v. Knoblauch, 73 Minn, an action of unlawful detainer, ad- 108, 75 N. W. 1039. mitting himself to be in possession 46» Despard v. Walbridge, 15 N. Y. under a lease from plaintiff, could S74. But in Farrls v. Houston, 74 not allege that plaintiff was a slave Ala. 162, it was decided that a lessee and consequently non sui juris at of a mortgagee eould not defend the time of making the lease, against an action for rent by the In Grant v. White, 42 iVTo. 285, it mortgagee by showing that the was held that when a married wo- mortgage debt had been, extinguish- man made a lease without her bus- ed by the rents and profits of the band's consent, of her own property, land. the lessee was estopped, in an tin- *7o See ante, § 73 a (1). lawful detainer proceeding by her, 471 Holmes v. Turner's Falls, 142 to assert the invalidity of the lease. Mass. 590, 8 N. E. 646. It does not appear how the inva- 472 Russell V. Erwin's Adm'r, 38 lidity of the lease could affect her Ala. 44. right to recover possession. See In Helmes v. Stewart, 26 Mo. 529, post, § 273 a (3). § 78 TENANT MAY SHOW TRANSFER OF REVERSION. 493 that ' ' an estoppel must be nmtual, ' ' and that, since the lessor is not in such case bound by the lease, the lessee is not precluded from questioning the latter 's title.*" ^ This doctrine, that estoppels must be mutual, was asserted by the early authorities in the case of estoppel by record and by deed,*^* and it was accordingly held that a lessee was not estopped by the fact that the lease was by indenture, if the lessor, as being a married woman or infant, was not also estopped.*^^ But it seems clear that such a rule has no application to the modem doctrine of estoppel in pais, of which the asserted "estoppel of a tenant to deny his landlord's title," based on his entry into possession or his acceptance of a lease, must be considered a branch. An estoppel in pais is almost in- variably based on representations or conduct by one party to the transaction only, and, consequently, is binding on him alone, n. Tenant may show transfer of the reversion — (1) To third person. After having assumed liability for rent or for use and occupation, the lessee cannot, as we have seen, repudiate such liability on the ground that the lessor's title is defective,*''* nor can he, after obtaining possession under the lease, refuse on that ground to relinquish possession at the proper time to the les- sor.*''^ But the lessor may transfer his reversion to another, thereby .giving to such other the right to the rent as well as to the possession, and the lessee may show, as against a claim for rent or possession by the lessor, that the latter, having transfer- red the reversion, is no longer entitled to assert such claim. Were this not the case, the lessee, or person claiming under him, might be liable to separate suits for possession, or for rent, by both the original lessor and by a transferee of the latter, and be with- out any defense to either, since, as we have seen,*^^ t^e transferee of the lessor is entitled to the benefit of any rule of preclusion or estoppel to the same extent as the lessor himself. *'3 Crockett v. Althouse, 35 Mo. was to be regarded as executing the App. 404. In Schenck v. Stumpf, 6 lease merely as his agent. Mo. App. 381, this doctrine was ap- "* Co. Litt. 352 a. plied as against a married woman "s Bac. Abr., Leases (o); James making a lease of her sole and sep- v. Landon, Cro. Eliz. 37; Brereton v. arate estate; distinguishing Grant v. Evans, Cro. Eliz. 700. White, 42 Mo. 285, supra, on the «6 gee ante, § 78c (3) (4). ground that there the title was «? See ante, § 78 c (1) (2). really in the husband, and the wife «« See ante, § 7« m (1). 494 PRECLUSION TO DENY TITLE. § 78 This principle, that the tenant may show a conveyance of the reversion as against a claim set up by the original lessor as land- lord, is quite frequently asserted in the form of a statement that, though the tenant is estopped to assert defects in the lessor's title, he may show that it has " expired, "*''* a form of expression which is somewhat misleading in this connection. Understanding the word "title" in this connection to mean property rights, a trans- fer by the lessor of all his rights in the premises does no doubt bring his title to an end, and accordingly it involves the expira- tion of his title, but those rights still exist in his transferee, and it may be considered that there is in such case a transfer of the lessor's title rather than an expiration thereof. After the trans- fer of the lessor 's interest, or asserted interest, the tenant is pre- cluded, to the same extent as before, from alleging that the lessor did not have title at the time of the lease, but this has not the remotest bearing on his right to show that his lessor's interest has, since the making of the lease, passed to another. Singularly enough, however, the judicial assertion of a right in the tenant thus to show a transfer of th« reversion, as against the person who made the transfer, seems to have been quite frequently call- ed for, and it has accordingly been in a number of eases decided that a lessee, or one claiming under him, may, when sued by the lessor, for rent or for possession, show that the lessor has volun- tarily transferred the reversion to another,*^" or that the rever- sion has passed from the lessor by judicial process or decree, as, for instance, by sale under execution,**^ or on foreclosure of a *T9See Parris v. Houston, 74 Ala. St. John v. Quitzow, 72 111. 334; 162; Robertson v. Biddell, 32 Fla. Gregory's Heirs v. Crab's Heirs, 41 304, 13 So. 358; St. John v. Quit- Ky. (2 B. Mon.) 234; McGuffie v. zow, 72 111. 334; Kinney v. Laman, Carter, 42 Mich. 497, 4 N. W. 211; 8 Blackf. (Ind.) 350; Casey v. Greg- Boyd v. Sametz, 17 Misc. 728, 40 N. ory, 52 Ky. (13 B. Mon.) 505, 56 Am. Y. Supp. 1070; West Shore Mills CO. Dec. 581; Giles v. Bbsworth, 10 Md. v. Edwards, 24 Or. 475, 33 Pac. 987; 333; Lane v. Young, 66 Hun, 563, 21 Sparks v. Walton, 4 Phila. (Pa.) 72; N. Y. Supp. 838. Ryers v. Farwell, 9 Barb. (N. Y.) 480 Doe d. Marriott v. Edwards, 5 615; Lawrence v. Miller, 3 N. Y. Bam. & Adol. 1065; Jackson v. Row- Super. Ct. (1 Sandf.) 516; Chase v. land, 6 Wend. (N. Y.) 666, 22 Am. Dearborn, 21 Wis. 57; Allen v. Hall, Dec. 557; Hoag v. Hoag, 35 N. Y. 66 Neb. 84, 92 N. W. 171. 469; Winn V. Strickland, 34 Fla. 610, *8i Randolph v. Carlton, 8 Ala. 16 So. 606; Pentz v. Kuester, 41 Mo. 606; Nellis v. Lathrop, 22 Wend. (N. 447; Franklin v. Palmer, 50 111. 202; Y.) 121; Gunn v. Sinclair, 52 Mo. § 78 TENANT MAY SHOW TRANSFER OF REVERSION. 495 mortgage,*82 or under condemnation proceedings,**^ or that the landlord's interest has been sold for taxes.*** So, in jurisdic- tions where a mortgage has the effect of transferring the legal title, the lessee may show that, since the making of the lease, the lessor has mortgaged the premises, and that, consequently, not he, but the mortgagee, is entitled to assert the rights of a land- lord.*85 And not only may the tenant show, as against the les- see, that he has transferred the reversion, but he may show as against a transferee of the reversion that he, in turn, has re- transfered to another.**® Occasionally it is said that the tenant may show the transfer of the former landlord's title to a third person, and his own at- tornment to such transferee as against the former landlord.**' But ordinarily no necessity of attornment is suggested, and, in view of the rule, usually embodied in a statutory provision, ***• **' that no attornment is necessary on a transfer of the reversion, it is evident that the absence of an attornment is in most juris- dictions immaterial in this regard. (2) To himself. As the tenant may show, as against one suing as landlord, that the reversion formerly existing in the latter has been transferred to a third person, so he may show that it has been transferred to himself, with the result that there is no longer any outstanding reversion. And it is immaterial, for this purpose, whether the reversion has come to him by means of a transfer voluntarily made by the former owner,**" by a sale 327; Rhyne v. Guevara, 67 Miss., isb Doe d. Marriott v. Edwards, 5 139, 6 So. 736; Lancashire v. Mason, Barn. & Adol. 1065. 75 N. C. 455; Caaey v. Gregory, 52 488 Doe d. Marr v. Watson, 4 U. Ky. (13 B. Hon.) 505, 56 Am. Dec. C. Q. B. 398. 581. 487 Franklin v. Palmer, 50 111. 202 ; 482 Wolf V. Johnson, 30 Miss. (1 Sherman v. Spalding, 126 Mich. 561, George) 513. 85 N. W. 1129; Pentz v. Kuester, 41 483 Lodge v. Martin, 31 App. Div. Mo. 447. 13, 52 N. Y. Supp. 385; Corrigan v. 488, 489 See post, § 146 f. Chicago, 144 111. 537, 33 N. E. 746, 21 490 Casey v. Gregory, 52 Ky. (13 L. R, A. 212. B. Mon.) 505, 56 Am. Dec. 581; Har- 484 Keys v. Forrest, 90 Md. 132, 45 din v. Forsythe, 99 111. 312; Silvery Atl. 22; Sherman v. Spalding, 126 v. Summer, 61 Mo. 253; Shields v. Mich. 561, 85 N. W. 1129; Jenkinson Lozear, 34 N. J. Law, 496 (mort- V. Winans, 109 Mich. 524, 67 N. W. gage to lessee); Aurand v. Wilt, 9 549. Pa. 54; Elliott v. Smith, 23 Pa. 131; 496 PRECLUSION TO DENY TITLE. § 7g under judicial process, as in the ease of an execution sale,*^i or a tax sale.*^2 There is a decision to be found that, in an action for rent, the tenant can defend by showing that the plaintiff has merely con- tracted to convey the reversion to the tenant's wife.*^^ And in another case he was allowed to defend in ejectment by showing that a court of equity had decreed that the plaintiff convey the reversion to him.*^* These decisions seem to involve the asser- tion of an equitable defense in an action at law, and would pre- sumably not be followed in all jurisdictions. In one state it has been decided that although a tenant has contracted for the pur- chase of the reversion, he is presumed to continue in possfession under the lease, so as to be estopped to deny the lessor's title, until the contrary is shown.^^B (3) Effect of sale under lien. When the tenant asserts, as against the landlord, a title in himself or in another obtained by a voluntary conveyance, there is ordinarily no difficulty in deter- mining whether this is a title paramount to that of the lessor or merely the lessor's reversionary title. But when the title thus asserted by the tenant is one which has passed out of the lessor by a forced sale, the question is somewhat more difficult. If the charge or lien under which the sale is made is prior in time to the lease, it seems clear that the purchaser will have a paramount title.^8^ A title thus passing by sale under a lien prior to the lease is equivalent to a title directly conveyed by the lessor prior to the lease, and to assert such outstanding title involves an attack upon Van Etten v. Van Etten, 69 Hun, mer, 50 111. 202; Smltli v. Scanlan, 4S9, 23 N. Y. Supp. 711; Wade v. 106 Ky. 572, 51 S. W. 152; Bowser South Penn Oil Co., 45 W.. Va. 380, v. Bowser, 29 Tenn. (10 Humph.) 32 S. E. 169. 49; Reed v. Munn (C. C. A.) 148 *9i Casey v. Gregory, 52 Ky. (13 Fed. 737. See Pickett v. Ferguson, B. Mon.) 505, 56 Am. Dec. 581; 86 Tenn. 642, 8 S. W. 386. Nellis V. Latlrop, 22 Wend. (N. Y.) <92Higgins v. Turner, 61 Mo. 249. 121; Pickett v. Ferguson, 45 Ark. *93 RoTjertson v. Biddell, 32 Pla. 177, 55 Am. Rep. 545; Hetzel v. Bar- 304, 13 So. 358. lier, 69 N. Y. 1; Elliott v. Smith, 23 49* Swann v. Wilson, 8 Ky. (1 A. Pa, 131; Ryder v. Mansell, 66 Me. K. Marsh.) 99. 167; Camley v. Stanfleld, 10 Tex. *95Schields v. Horl)ach, 49 Neb. 546, 60 Am. Dec. 219; Tewksbury 262, 68 N. W. 524. V. Magraff, 33 Cal. 237; HIggins v. 496 See ante, §§ 47, 73 c; post, § Turner, 61 Mo. 249; Tilghman v. 147. Little. 13 111. 239; Franklin v. Pal- § 78 TENANT MAY SHOW TRANSFER OF REVERSION. 497 the lessor's title as it existed at the time of the lease. On the other hand, a sale under a lien subsequent to the lease transfers the reversion, and this the tenant has a perfect right to assert as against one out of whom the reversion was thus divested.*^'^ The decisions on the subject do not, however, it must be con- ceded, recognize this distinction.^^s Ordinarily, the time of the sale only seems to be considered, the title of the purchaser being regarded as paramount if the sale occurred before the making of the lease, and as not paramount, and as merely representing the reversionary interest of the lessor, and so capable of assertion by the tenant, if the sale occurred after the lease.*^^ 48T See post, § 146 e. Stanfleld, 10 Tex. 546, 60 Am. Dec. 498 In Pierce v. Rollins, 60 Mo. 219; Texas Land Co. v. Turman, 53 App. 497, this distinction is in effect Tex. 619) instead of basing his right recognized, it being decided that the to assert such title on the fact that exception, in the local statute mak- the sale was made under a judgment Ing an attornment to stranger void, or execution which was not a lien of an attornment to or in pursu- until after the lease. , ance of a sale under execution or in Smith v. Crosland, 106 Pa. 413, deed of trust, must refer to a sale the tenant was allowed to assert under a deed of trust (mortgage) that the title was in a third person whereby the purchaser is placed in by reason of a sale to him under exe- privlty with the landlord's title and cution which had been levied on the not under a deed of trust paramount land before it had passed to the to such a title. This decision seems, lessor, the sale under the execution however, to be opposed to the deci- being made after the lease, and it sion of the higher court of the same was apparently, in effect, said to state in Freeman v. Moffit, 119 Mo. be immaterial whether the sale was 280, 25 S. W. 87, holding that the made under a judgment against the lessee of a purchaser under a second landlord rendered after the lease deed of trust may attorn to a pur- or was under a judgment which was chaser at a subsequent sale under a a lien at the time of the lease^ prior deed of trust, and that he may There is a similar decision and die- thereafter defend an action of eject- turn in Carson v. Crigler, 9 111. App. ment by one claiming as transferee (9 Bradw.) 83. of the lessor. In Ryder v. Mansell, 66 Me. 167, *99 So it is said in several cases it was held that the lessee might, in that the lessee could assert a title an action for rent, set up a title pro- in himself or a third person ob- cured by foreclosure of a mortgage tained by means of a sale of the made prior to the lease, the theory premises for the reason that the sale being that this showed the expira- was after the making of the lease tion of the lessor's title. It showed, (Bowser v. Bowser, 27 Tenn. (8 on the contrary, it is submitted. Humph.) 23; "Wood v. Turner, 27 merely that a paramount title had Tenn. (8 Humph.) 685; Camley v. vested in the tenant. L. and Ten. 32. 498 PRECLUSION TO DENY TITLE. § 7g The idea that the time of the sale is the important considera- tion, and that the tenant may assert a title procured by such sale if made after the lease, is no doubt the result of a tendency to assimilate such a sale, and the conveyance made in accordance therewith, to the case of a conveyance voluntarily made by the lessor after the lease, which is, however, entirely different. Unless a title obtained by sale under a lien takes effect as of the time of the lien, a lien could be rendered valueless by a subsequent conveyance or long time lease at a low rent, made by the owner of the land, and if it does take effect as of that time, it must be paramount as regards a title acquired by a subsequent convey- ance or lease. Applying the distinction above asserted, it would seem that a tenant should be precluded from asserting, as against his land- lord, a title acquired by one upon a sale of the land for taxes, provided the taxes were a lien upon the land at the time of the making of the lease, while not precluded from asserting such a title if the taxes became a lien after the date of the lease. This view has, however, never been judicially asserted.^""' ^°^ 0. Tenant may show nontransfer of the reversion. Though the tenant is precluded from questioning the lessor's title as agaiust one who, by reason of the transfer to him of the rever- sion, has become the landlord in place of the lessor,50 2 the ten- ant is in no way precluded from denying that a person assert- ing the rights of a transferee of the reversion is in fact such transferee.503 "Were the rule otherwise, any person could, by 500, 501 In Jenkinson v. Winans, 109 the taxes were a lien prior to Mich. 524, 67 N. W. 549, It Is de- the lease is not referred to in either cided that the tenant may show, in the opinion of the court or the dls- summary proceedings against him, senting opinion, and the former is that the landlord's title has been ex- plainly to the effect that the pur- tinguished by tax sale and that he chaser is a stranger for this pur- has attorned to the purchaser. It pose even though the taxes were not does not appear whether the taxes a lien till after the lease, were a lien at the time of the lease. 502 See ante, § 78 m (1). In O'Donnell v. Mclntyre, 118 N. 503 Doe d. Plevin v. Bro^vyn, 7 Adol. Y. 156, 23 N. E. 455, it is decided & E. 447; Doe d. Grundy v. Clarke, that one acquiring a tax title to 14 East, 488 (semble) ; Tewksbury v. real property is not in privity with Magraff, 33 Cal. 237; Schott v. Bur- the former owner, and that conse- ton, 13 Barb. (N. Y.) 173; Gillett v. quently an attornment to him is void Mathews, 45 Mo. 307; Dunshee v. as being to a stranger. The fact that Grundy, 81 Mass. (15 Gray) 314; § 78 TENANT MAY SHOW NONTRANSFER OF REVERSION. 499 means of a false allegation that he was the transferee of the les- sor, assert the rights of a landlord against the tenant. Conse- quently, the tenant may show that the reversion had been pre- viously conveyed by the lessor to another, so that nothing passed by the alleged conveyance to the person asserting the rule of pre- clusion,^"* or that the alleged conveyance was not sufficient in form or execution to pass the reversion,505 or that one claiming the reversion by reason of a sale under execution was not the owner of the reversion owing to defects in the sale.^"^ And as against one claiming as heir of the lessor, the tenant may show that the lessor had devised the premises to another.^or So the tenant may show that the original lessor was only a tenant at will and that consequently he had no power to make the transfer under which the person asserting the rights of a landlord makes claim,508 and a tenant at will may show, as against one claiming possession under a subsequent lease from the same lessor, that the latter, being himself merely a tenant at will, could not make a lease to another.^"* And it has been de- cided that, as agains|; one claiming as purchaser under a sale upon foreclosure of a mortgage subsequent to the lease, the tenant may show that, owing to the failure to make the holder of a later mortgage a party to the foreclosure proceeding, a purchaser at foreclosure of this later mortgage was entitled to the rent and not the prior purchaser.''^** It is on the same principle, it seems, that the tenant may show that the conveyance of the reversion was for a limited period only, which period has expired.^^i But the tenant cannot show that the transfer of the reversion to the person asserting the rights of a landlord was voidable, pro- Bergman V. Roberts, 61 Pa. 497; 507 Bespard v. Walbridge, 15 N. Y, Rogers t. Hill, 3 Ind. T. 562, 64 S. 374. W. 536. 108 Palmer v. Bowker, 106 Mass. 504 Funk's Lessee v. Klncald, 5 3^7 Md. 404; Ansley v. Longmlre, 4 New 500 Hilbourn v. Fogg, 99 Mas.s. 11. Br. (2 Kerr) 321, contra, cannot be g^^ g^^^^^^^ ^ j^,^y_ ^^^ ^^^^ ^^^_ supported. 16 N E 776 soBSchott V. Burton, 13 Barb. (N. " ' " ..„,,. ^ „„ Y.) 173; Funk's Lessee v. Kincald. ""Walker v. Fisher, 117 Mich. 72, 5 Md. 404. 75 N.W. 144. 506 Pickett V. Breckenridge, 39 =" Fryer v. Coombs, 11 Adol. & B. Mass. (22 Pick.) 297, 33 Am. Dec. 403. 745. 500 PRECLUSION TO DENY TITLiE3. § 78 vided it was not void. For instance, it has been decided that he cannot show that the transfer was in fraud of the lessor's creditors,^i2 or, as against one claiming xmder a purchase of the reversion at execution sale, that the sale was voidable for the rea- son that such person was the administrator of the execution plaintiff.513 Even though the tenant has attorned to one claiming to be the transferee of the reversion, he may thereafter, by some decisions, deny that such person is the transferee, if the attornment was made in the mistaken belief that he was the transferee.^i* In one ease it was decided that the tenant against whom, at the expiration of the term, ejectment was brought by one claim- ing under a conveyance from the lessor and her reputed hus- band, could not show that the conveyance was invalid because the lessor was at the time of the conveyance married to another man, since the evidence of this marriage showed that it was before the lease, and, if the lessor was then married, she had no title author- izing her to make the lease.^^^ It is diificult to see, however, why the tenant should not have been allowed to show the invalidity of the conveyance to the plaintiff, even though incidentally the evidence showed lack of title in the lessor at the time of the lease, since the fact that such lack of title appeared from the evidence, or even from the admissions of the lessor, would not have enabled the tenant to deny the title of the lessor as it existed at the time of the lease.^i^ There has been considerable discussion as to whether, when the lessor has no title, the tenant may, in defense to an action by the lessor's transferee upon a covenant of the lease, assert that, be- cause the lessor had no title, there was no reversion with which the covenant would run. This matter is discussed in a subse- quent chapter.si'^ p. Duration of the preclusion or estoppel — (1) Relinquish- ment of possession by tenant. The estoppel or preclusion of the 512 See Steen v. Wardsworth, 17 Mich. 72, 75 N. W. 144. S6e ante, Vt. 297; Steadman v. Jones, 65 N. C. at notes 425-428. 388. 515 Funk's Lessee v. Kincaid, 5 513 Murphy v. Teter, 56 Ind. 545. Md. 404. 514 Doe d. HIgginbotham v. Bar- 5i6 gee ante, § 78 d, at notes 267, ton, 11 Adol. & B. 307; Hoskins v. 268. Helm, 14 Ky. (4 Lltt.) 309, 14 Am. 5i7 See post, § 149 b (8). Dec. 133; Walker v. Fisher, 117 § 78 RELINQUISHMENT OF POSSESSION BY TENANT. gQl tenant to deny the landlord's title continues, it is frequently- said, until he relinquishes possession.^is This statement is, in connection with actions by the landlord for possession, undoubt- edly true; that is, so long as the tenant, having entered under the lease, or under one holding under the lease, remains in pos- session, his estoppel to assert a paramount title as a defense to such an action continues, without reference to whether the term of the tenancy created by the lease has come to an end.^is Other- wise, it is plain, the rule excluding such a defense in an action by the landlord for possession would have practically no applica- tion, since such action is almost invariably brought after the ex- piration of the term. The statement is likewise correct when understood in the sense that, if by holding over he otherwise sub- jects himself to liability for rent or for use and occupation, de- fects in the lessor's title no more relieve him from such liability than froin liability on account of the holding during the term originally named,^2o j^ig liability being based on an express un- dertaking to that effect, or on an undertaking implied in fact from the circumstances of his occupation. But if the statement 518 Davis V. Williams, 130 Ala. 530, Dec. 605; Doe d. Manton v. Austin, 30 So. 488, 54 L. R. A. 749, 89 Am. St. 9 Bing. 41. R«p. 55; Clemm v. Wilcox, 15 Ark. bio shelton v. Eslava, 6 Ala. 230; 102; Bryan -v^. Winburn, 43 Ark. 28; Miller v. Turney, 13 Ark. 385; Rogers v. Boynton, 57 Ala. 501; Doe Tewksbury v. Magraff, 33 Gal. 237; d. Newton v. Roe, 33 Ga. 163; Fus- McKissick v. Ashby, 98 Gal. 422, 33 selman v. Worthington, 14 111. 135; Pac. 729; Grizzard v. Roberts, 110 Hardin v. Porsythe, 99 111. 312; Sex- Ga. 41, 35 S. E. 291; Miller v. Lang, ton V. Garley, 147 111. 269, 35 N. E. 99 Mass. 13; Settle v. Henson, Mor- 471; Phillips v. Rothwell, 7 Ky. (4 ris (Iowa) 111; Brown v. Keller, 32 Bibb) 33; Norton v. Sanders, 31 III. 151, 83 Am. Dec. 258; Pence v. Ky. (1 Dana) 14; Binney v. Chap- Williams, 14 Ind. App. 86, 42 N. E. man, 22 Mass. (5 Pick.) 124; Towne 494; Harrison v. Marshall, 7 Ky. (4 V. Butterfleld, 97 Mass. 105; Ryer- Bibb) 524; Falkner v. Beers, 2 Doug, son V. Eldred, 18 Mich. 12; Pate v. (Mich.) 117; Jackson v. Stiles, 1 Turner, 94 N. C. 47; Jackson v. Cow. (N. Y.) 575. Harper, 5 Wend. (N. Y.) 246; Long- 520 See Robinson v. Holt, 90 Ala. worth's Lessee v. Wolflnger, Wright 115, 7 So. 441; Knowles v. Innman, (Ohio) 216; Porter v. Mayfleld, 21 16 Colo. 385, 26 Pac. 823; Love v. Pa. 263; Milhouse v. Patrick, 6 Rich. Law, 57 Miss. 596; Longfellow v. Law (S. C.) 350; Wilson v. Smith, Longfellow, 54 Me. 240; Osgood v. 13 Tenn. (5 Yerg.) 379; Casey v. Dewey, 13 Johns. (N. Y.) 240-; Kier- Hanrick, 69 Tex. 44, 6 S. W. 405; nan v. Terry, 26 Or. 494, 38 Pac. 671. Greeno v. Munson, 9 Vt. 37, 31 Am. 502 PRECLUSION TO DENY TITLE. § 78 referred to is to be understood as meaning that, after the tenant has relinquishefd possession, he can assert defects in the lessor's title in defense to an action to enforce the stipulation as to rent, it must be regarded as erroneous. If he could do so, the- rule excluding such a defense in an action for rent would be to a great extent nugatory. Nor can he, it would seem clear, defend an action by the landlord for v/aste, ol" in trover for wood cut, by showing defects in the lessor's title, merely because, after he committed the waste, he relinquished possession of the land. That the rule of estoppel or preclusion ceases with the relinquishment of possession has been asserted in connection with decisions that after such relinquishment, upon the expiration of the term, the tenant may proceed to assert his title to the land, as by an action of ejectment,^^^ a proceeding to have an absolute conveyance from him to the lessor declared a mortgage,^^^ or a proceeding for partition.^23 -^y-g have before suggested the question whether the latter two classes of proceedings might not properly be insti- tuted by the tenant even before his relinquishment of possession, since the landlord's defenses thereto cannot be adversely affected by the fact that the plaintiff is in possession holding as his tenant.^24 As a result of the frequent assertion, by inference at least, that the rule of estoppel or preclusion ceases to operate upon the re- linquishment of possession, it has been attempted in a number of cases to prove a relinquishment of possession legally sufficient to satisfy such a doctrine although the tenant was still in actual possession. It has in this connection been decided that a suffi- cient relinquishment or "surrender" of possession for this pur- pose does not result from a mere notice to the landlord of inten- tion to hold adversely to him,525 nor from the mere manual sur- render of the written instrument of demise. ^^e Nor is it sufficient 521 Smith V. Mundy, 18 Ala. 182, 523 Henning v. Warner, 109 N. C. 52 Am. Dec. 221; Rives v. Nesmlth, 406, 14 S. E. 317. 64 Miss. 807, 2 So. 174; Gable v. 524 See ante § 78 c (6). Wetherholt, 116 111. 313, 6 N. E. 453, ,^ Longfellow v. Longfellow, 61 56 Am. Rep. 774; Wild's Lessee v. ^^ ^^^^^ ^ ^ 4 ^ Serpen, 10 Grat. (Va.) 405. See . _ ,_ ^ ,„, Anderson v. Anderson, 104 Ala. 428, ,„ „ ,, B26Mackin v. Haven, 187 111. 480, 16 So. 14. 522 Zimmerman v. Marohland, 23 ^^ ^- ^- '**^- Ind, 474. § 78 EVICTION UNDER PARAMOUNT TITLE. 503 that the tenant relinquishes possession for a short time, without notice to the landlord, and without giving him an opportunity to resume possession, the tenant again taking possession by col- lusion with a third person.B27 And even when the tenant did in such case notify the landlord, he was regarded as still in pos- session under the latter, if he immediately took a lease from an adverse claimant before the landlord had an opportunity to re- enter.828 iphe relinquishment of the possession of part was held not to justify a showing of lack of title to the balance.''^^ It has been decided that one who takes a lease, for a' definite term, of a right in the nature of an easement, such as a right to use water or to flow land, is not estopped, after the expiration of the agreed term, to assert any rights which he may have in such connection, without reference to the expired lease.*^" Such an incorporeal thing is incapable of actual possession, and .the lessee, not having obtained possession of anything by reason of the lease, is free from an obligation to return possession as a pre- requisite to asserting his rights. (2) Eviction under paramount title. The preclusion of the tenant to deny the title under which he entered comes to an end upon his eviction from the premises under a paramount title. ^^^ And he may after the eviction re-enter and defend against the claim of his former landlord for the possession.532 ^g elsewhere &tated,^3'^ such an eviction is a defense to a claim for subsequent rent. We have had occasion, in another connection,^^* to refer to cases in which it is asserted that an attornment by a tenant to 527 Littleton V. Clayton, 77 Ala. ssi See post, § 186 a. 571; Juneman v. Franklin, 67 Tex. 532 Foster v. Morris, 10 Ky. (3 A. 411. K. Marsh.) 609; Gilliam v. Moore, 44 B28Boyer v. Smith, 3 Watts (Pa.) N. C. (Bush. Law) 95. See Farrls 449. V. Houston, 74 Ala. 162; Tewksbury B29 Longfellow v. Longfellow, 54 v. MagrafC, 33 Cal. 237. So he may Me. 240. show such eviction and entry under 630 Swift V. Goodrich, 70 Cal. 103, a lease from the holder of the para- 11 Pac. 561; Page v. Kinsman, 43 mount title as against a distress by N. H. 328. In the latter case the the former landlord. Hopcraft v. decision is based upon the common- Keys, 9 Bing. 613. law rule that an estoppel by in- oaa See post, § 182 e (2). denture of lease expires with the B34 See ante, § 19 b (3). lease. See ante, at note 195. 504 PRECLUSION TO DENY TITLE. § 78 a stranger is absolutely invalid as against the landlord, even though such stranger has |title paramount to that of the landlord, a proposition which is in effect equivalent to a statement that the tenant is precluded from denying his landlord's title even though he, the tenant, has attorned to a stranger having par- amount title. There are, on the other hand, decisions to the ef- fect that if the tenant, upon demand by the owner of the par- amount title for possession or for the payment to him of rent, and without waiting to be actually evicted, attorns to such par- amount title, there is a constructive eviction which, like any other eviction, constitutes a defense to the claim for rent thereafter accruing,^35 and which constitutes a breach of the covenant for quiet enjoyment.^^® Such an attornment to the paramount title upon threat of suit for possession has also been regarded as a suf- ficient defense to an action of ejectment by the landlord.^^' In 535 Morse v. Goddard, 54 Mass. (13 229, 47 N. E. 294, an action of eject- Mete.) 177, 46 Am. Dec. 728; George ment, it is said that the rule preclud- V. Putney, 58 Mass. (4 Gush.) 351, ing a tenant from denying his land- 50 Am. Dec. 788; Lyon v. Washburn, lord's title does not apply as against 3 Colo. 201; Whalin v. White, 25 N. a tenant who, having gone into pos- Y. 462; Simers v. Saltus, 3 Denio session under a lease, afterwards, (N. Y.) 216; West Shore Mills Co. on ascertaining that his landlord V. Edwards, 24 Or. 475, 33 Pac. 987; had no right to lease, abandons that Mayor of Poole v. Whitt, 15 Mees. & possession and attorns to the true W. 571; Newport v. Hardy, 2 Dowl. owner. But it had previously been &. L. 921. And see citations ante, held that a tenant could not show, § 73 a (3); post, § 186 a (2). as against his landlord asserting a As against an objection first made right to possession, that he, the at the trial, it was held that an tenant, had attorned to one who averment in a pleading that the had acquired the title at tax sale tenant was compelled to, and did, during the tenancy, such an attorn- attom to the owner of the premises, ment being to a stranger and there- Eufficiently alleged such an enforce- fore void under the statute. O'Don- ed attornment. Johnson v. Sackri- nell v. Mclntyre, 118 N. Y. 156, 23 son, 78 Minn. 107, 80 N. W. 858. N. E. 455. See as to this case and 536 Rawie, Covenants for Title, § the apparently contrary case of 134 et seq. See post, § 79 d (3). Jenkinson v. Winans, 109 Mich. 524, 537 Merryman v. Bourne, 76 U. S. 67 N. W. 549, ante, note 500. (9 Wall.) 592. And see Palmtag In Elms v. Randall, 32 Ky. (2 V. Doutrick, 59 Cal. 154, 53 Am. Rep. Dana) 100, it was; decided that, 245; Gallagher v. Bennett's Heirs, 38 since the lessor is entitled to pos- Tex. 291. And see the discussion in session after the expiration of the 6 Am. Law Rev. 28. lease, if he then enters peaceably In De Forest v. Walters, 153 N. Y. and executes a lease to the sub- § 78 EVICTION UNDER PARAMOUNT TITLE. 505 effect opposed to the cases thus recognizing the right of the ten- ant to assert a paramount title to which he has attorned under compulsion, are not only the quite numerous cases asserting that an attornment by a tenant to a stranger is absolutely invalid as against the landlord, but also a number of cases in which it is decided that even the rendition of a judgment for possession in favor of the paramount claimant does not justify the tenant in attorning to him.^ss The English cases do not clearly show whether, in that jurisdiction, an enforced attornment to the para- mount title is a constructive eviction letting in evidence of such title,5*8 though it is conceded that such is the case when the para- mount title consists of a mortgage prior to the lease.^*" The doc- trine referred to, that the tenant, attorning to the paramount title in order to avoid actual eviction, is in effect constructively evicted, and is entitled to assert this as against his landlord, seems almost a corollary of the rule that he may assert such eviction when he relinquishes possession upon demand by the owner of such title. There is no substantial difference between an attorn- ment under such circumstances and a relinquishment of posses- sion to the paramount claimant and the subsequent acceptance of a lease from him. The landlord is not injured by the application of such a doctrine, since the tenant has, as when he relinquishes possession on demand,^*! the burden of showing that the title as- serted as paramount is actually paramount. The chief objection to the doctrine would seem to be its apparent inconsistency with the various statutes invalidating an attornment by a tenant to a stranger. 8*2 Por the most part neither the cases asserting its eor- tenant, the latter can assert such 4 C. B. (N. S.) 423, involved the holding under him as against the question whether one leaving the sublessor's action to recover posses- premises did so under compulsion sion. from the paramount owner so as to 538 See post, at notes 546, 547. enable him to assert an eviction, B39 The dicta in Delaney v. Fox, 2 and not that of the effect of an en- C. B. (N. S.) 768, an action involv- forced attornment to the paramount ing possession, are adverse to giving owner. such an effect to the attornment b*o See statement by Willes, J., in except in the case of an attornment Delaney v. Fox, 2 C. B. (N. S.) 768, to a i)aramount mortgagee, and the supra, and cases cited ante, § 73 a case of the Mayor of Poole V. Whitt, (3) (6). 15 Mees. & W. 577, an action for rent,' o" See post, § 186 a (2), notes 184, is there questioned in this regard. 185. The subsequent case of In re Emery, 5*2 See ante, § 19 f (1). 506 PRECLUSION TO DENY TITLE. | 75 rectness, nor those in effect denying it, make reference to the pro- visions of these statutes as bearing on the question. Occasionally the question has arisen as to the effect of an at- tornment by the tenant to the owner of the paramount title after the latter has procured a judgment for possession against him. If an attornment upon demand without judgment is a suiScient showing of eviction, in accordance with the authorities above re- ferred to, such an attornment after judgment would seem, a for- tiori, to be sufficient for this purpose. It has so been decided, in some cases, that the tenant may yield possession or attorn to a claimant under paramount title who has procured a judgment for possession against him and assert this in defense to an action by his former landlord,^*^ but in others his right so to yield to the judgment seems to be based upon the consideration whether a writ of execution has been issued thereunder.^** And in some, it is decided, that he cannot yield to such judgment and thereafter defend against his landlord unless he notified the latter of the action for possession and gave him an opportunity to defend.^*^ The judgment in the action against the tenant, in the absence of notification to the landlord, would, ordinarily at least, not be con- clusive against the landlord as to the paramount nature of the title asserted therein, and the tenant would have the burden of B<3Mecham v. McKay, 37 Cal. 154; good, 27 Pa. 285, it was decided that Clapp V. Coble, 21 N. C. (1 Dev. & where the claimant of a paramount B. Eq.) 177; Pleak v. Chambers, 35 title, after recovering a judgment in Ky. (5 Dana) 61; Gore v. Stevens, ejectment against the tenant, issues 31 Ky. (1 Dana) 201, 25 Am. Dec. a writ of habere facias possessionem, 141; Home Life Ins. Co. v. Sher- and the tenant then agrees to hold man, 46 N. Y. 370. He cannot, it under him and accepts a new lease is decided, yield to a judgment in from him, such new lease is valid, ejectment after it has become in- and the tenant's relation to his operative owing to the expiration of former landlord is dissolved, but the fictitious demise laid In the dec- that such dissolution does not con- laration. Pleak v. Chambers, 35 Ky. tinue after such writ and the return (5 Dana) 61. As to the effect of a thereon are set aside, the tenant's reversal of the judgment, see Wheel- relation to his former landlord then ock V. Warschauer, 34 Cal. 265; reviving. Ross V. Kernan, 31 Hun (N. Y.) sis Lowe v. Emerson, 48 III. 160; 164. Wheelock v. Warschauer, 21 Cal. 5*4Foss V. Van Driele, 47 Mich. 309; Douglas v. Fulda, 45 Cal. 592; 201, 10 N. W. 199 ; Ross v. Dysart, 33 Williams v. McMichael, 64 Ga. 445 Pa. 452. In Coughanor v. Blood- (semble). § 78 EVICTION UNDER PARAMOUNT TITLE. 507 showing that the judgment plaintiff had the paramount title,»*«-548 but it is not clear why the tenant's failure to notify the landlord of the action by the paramount owner should pre- clude the tenant from attorning to the latter after the judgment. The fact that the judgment was obtained by collusion with the tenant may perhaps render it inoperative as a justification for the attornment,^*^ though it would seem that, even in that case, if the judgment plaintiff has actually paramount title, the bring- ing of the action would be a sufficient demand by him for pos- session, under the authorities before cited, to justify the attorn- ment. The tenant is not, it seems, justified in yielding possession or attorning merely because the holder of the paramount title has recovered judgment for the land against his landlord and not against him,^5" though if a writ is issued to enforce such judg- ment he may yield possession or attorn without awaiting its forci- ble execution,B5i the issuance of such writ constituting in effect a demand for possession. The mere rendition of a decree affecting the title of the prop- erty, but not directed at the possession thereof, does not effect an eviction of the tenant which he can assert against the landlord,^^^ even, it would seem, though the tenant is a party thereto and re- linquishes the possession.sBs Such a decree involves no element 546.548 See Rawle, Covenants, § 128 default is immaterial if successful et seq.; Black, Judgments, § 389. It resistance could not have been made, was so in effect decided in Pate v. oso Hochenauer v. Hilderbrant, 6 Turner, 94 N. C. 47. Colo. App. 199, 40 Pac. 470; Hayes 548 In Pate v. Turner, 94 N. C. 47, v. Ferguson, 83 Tenn. (15 Lea) 1, the fact that the judgment was oh- 54 Am. Rep. 398; Pittsburgh & St. L. tained by collusion seems to be re- R. Co. v. Columbus, C. & I. C. R. garded as rendering it a nullity for Co., 8 Biss. 456, Fed. Cas. No. 11, the purpose of the attornment. But 197. And see Eddy v. CoflSn, 149 there, as is expressly stated, no par- Mass. 463, 21 N. B. 870, 14 Am. St. amount title in the judgment plain- Rep. 441; Murray, Caldwell & Co. v. tiff was shown, and the decision Is Pennington, 3 Grat. (Va.) 91. Luns- in effect merely that the judgment is ford v. Turner, 28 Ky. (5 J. J. not conclusive that the judgment Marsh.) 104, is apparently to the plaintiff had paramount title. contrary. That the judgment was rendered bsiRoss v. Dysart, 33 Pa. 452; by confession does not, it has been Montanye v. Wallahan, 84 111. 355; held, show collusion. Pleak v. Mack v. Patchin, 29 How. Pr. (N. Chambers, 35 Ky. (5 Dana) 61. Y.) 20. In Mills V. Peed, 53 Ky. (14 B. ooa Leopold v. Judson, 75 111. 536. Hon.) 146, it is said that the fact cos in Murray, Caldwell & Co. v. that the judgment was rendered by 508 PRECLUSION TO DENY TITLE. § 78 of a demand for possession. On the same principle, there is no eviction when, after a sale of the landlord 's interest under a judg- ment or mortgage prior to the lease, the landlord takes a lease from the purchaser, thus protecting the possession of the ten- ant.^s* But it has apparently been held that the recovery of a judgment against the tenant for damages by the holder of the paramount title, in an action of trespass or otherwise, is of itself an eviction.555 The mere fact that the owner of the paramount title has called upon the tenant to pay the rent to him, if not followed by an at- tornment to such person, has been decided not to constitute an eviction entitling the tenant to assert such paramount title. ^^* It is sometimes said that the tenant, in yielding possession or attorning to the holder of the paramount title, must act in good faith and be free from fraud or coUusion.^^T "W^hat is meant by this does not clearly appear, since if the title of the third person is paramount and is actually asserted, the tenant cannot well be guilty of fraud or collusion in yielding thereto. Perhaps it is merely another mode of saying what we say elsewhere,^58 that the tenant cannot assert an eviction when his attornment to the paramount title was entirely voluntary. Pennington, 3 Grat. (Va.) 91, it was Co., 39 Or. 546, 65 Pac. 808, it was decided that If the tenant yielded held that the fact that a decree was possession to the sheriff under a de- entered In another suit showing the cree rendered in a suit to which the title to he in others than the lessor tenant was not a party, directing the did not necessarily show that a sub- sherifC to lease the premises to the sequent attornment by the lessee to highest bidder but not authorizing such others was not collusive, that him to take possession, there was no It was for the jury whether It was eviction. so, and that the fact that such per- B54Pelton V. Place, 71 Vt. 430, 46 sons employed counsel for the ten- Atl. 63. ant for the purpose of a suit be- 555 McAlester v. Landers, W Cal. tween him and the lessor was some 79, 11 Pac. 505; Williams v. Shaw, 4 evidence of collusion. Though the N. C. 630 (Term, 197). question of collusion is thus stated 556 See cases cited ante, § 73 a to be for the jury, the court says (6), notes 120-122. that what constitutes collusion In 567 Camp V. Scott, 47 Conn. 366; this connection is problematical, and Ross V. Dysart, 33 Pa. 452; Morse v. makes no attempt to explain what Goddard, 54 Mass. (13 Mete.) 177, is meant thereby. 46 Am. Dec. 728. sss See post, § 186 a (2), at notes In Messinger v. Union Warehouse 188-190. § 78 EXPIRATION OF LESSOR'S ESTATE. 509 (3) Expiration of the lessor's estate. There are some decis- ions,559 and a number of liicto/^o to the effect that the tenant, though precluded from asserting that the lessor had no title at the time of the lease, is not precluded from asserting that the lessor's title has expired by its own limitation. As before stated, the rule that a tenant may show, as against his lessor, that the latter has transferred his interest, is frequently spoken of as an application of a general rule that the tenant may show the expiration of his landlord's title,^^! and such a statement is sometimes coupled with the statement now under discussion that he may show that the title has expired by its own limitation. There seems, however, not the slightest connection between the two rules. In the one case the expression "expiration of title" can refer only to the cessation of the lessor's personal ownership of a still existent interest by the transfer of such interest to an^ other, while in the other case it refers to the cessation of the in- terest itself. In some of the eases in which the right of the tenant to show the expiration of the lessor's title is asserted, the decisions may well be based on the theory of "constructive eviction, "^62 there having been an actual assertion of his right by the person entitled to which the tenant yielded, agreeing to hold under him.s^^ These 659 See post, notes 564-581. see of Devacht v. Newsam, 3 Ohio BsoLangford v. Selmes, 3 Kay & 57; Chaffin v. Brockmyer, 33 Mo. J. 220; Randolph v. Carlton, 8 Ala. App. 92. So in Wells v. Mason, 5 606; Lane v. Young, 66 Hun, 563, 21 111. (4 Scam.) 84, where the term- N. y. Supp. 838; Newell v. Gibbs, 1 ination of the lessor's life estate Watts & S. (Pa.) 496; Jenkinson v. was regarded as a defense to a claim Winans, 109 Mich. 524, 67 N. W. 549; for rent, the tenant had actually Chaffin V. Brockmeyer, 33 Mo. App. been expelled by the remainderman. 92; Prestman v. Silljacks, 52 Md. In Doe d. Higginbotham v. Barton, 647; Robinson v. Troup Min. Co., 55 11 Adol. & E. 307, likewise, while Mo. App. 662; Russell v. Allard, 18 the right of the lessee of a mort- N. H. 222; Robertson v. Biddell, 32 gagor to show, in ejectment by the Fla. 304, 13 So. 358; St. John v. latter, that the mortgagee had de- Quitzow, 72 111. 334; Kinney v. manded rent of him, was in terms Leman, 8 Blackf. (Ind.) 350. based on the theory that such de- 561 See ante, § 78 n (1). mand might show a termination of 582 See ante, § 78 p (2) ; post, § the lessor's title, this seems to be 186 a (2). merely a mode of expression for 5S3Hill T. Saunders, 4 Barn. & C. what we term a constructive evic- 529; Neave v. Moss, 1 Bing. 360; tion. Hopcraft v. Keys, 9 Bing. 613; Les- In Hill v. Saunders, 4 Bam. & C. 510 PRECLUSION TO DENY TITLE. § 78 eases we will leave out of consideration, direciing our attention exclusively -to those which apply the rule asserted in favor of the tenant, even though the person entitled upon the expiration of the lessor 's estate has made no claim to the possession. We will first consider the cases involving actions of ejectment or other posses- sory actions by the landlord against the tenant, and then the cases involving a claim for rent. In an English case,^^* quite frequently referred to in this con- nection, where an action of ejectment was brought by a lessor for years, himself holding under a lease for years, against his lessee, who was holding ov«r, apparently as tenant from year to year, it was said^ss that "it was certainly competent to the defendant to show that the lessor's title had expired; and that he had no right to turn him out of possession, ' ' but the case was decided in favor of the lessor on another point. This dictum was applied in another case, likewise without discussion,'^''^ and in two or three other cases the tenant was allowed, on the same theory, to show that the lessor had a life estate only, as against one asserting rights as heir or devisee of the lessor.^^T in one English case, however, there are dicta apparently to a contrary effect, that the lessor's title continues good as against the lessee until he relin- quishes possession,568 and it appears that, in that jurisdiction, the tenant cannot ordinarily show the expiration of the lessor's estate as a ground for not issuing a writ of possession, if the expiration occurs after the commencement of the action for possession.^ss The view above referred to, that in an action by the lessor, or by one claiming in his right, to recover possession of the premises, 529, two of the former judges seem sos per Kenyon, C. J., in England to base their decision In favor of the v. Slade, 4 Term R. 682. lessee on the presence of such con- sea Doe d. Jackson v. Ramsbotham, structlve eviction. In Mountnoy v. 3 Maule & S. 516. Collier, 1 El. & Bl. 630, it was left se? Doie d. Strode v. Seaton, 2 undecided whether the expiration of Cromp. M. & R. 728; Patterson v. the landlord's title could be shown Smith, 42 U. C. Q. B. 1; Heckart v. in defense to an action for use ani McKee, 5 Watts (Pa.) 385. occupation, in the absence of any sos See Gibbins v. Buckland, 1 submission by the tenant to the Hurl. & C. 736. Compare Buckland assertion of a claim by the para- v. Gibbins, 32 Law J. Ch. 391, and mount owner. the case next cited. 56* England v. Slade, 4 Term R. 569 gee Knight v. Clarke, 15 Q. B. 682. Div. 294. § 78 EXPIRATION OF LESSOR'S ESTATE. 511 the tenant can show in defense that the estate which the lessor Jiad at the time of the lease has expired by its own limitation, is not entirely satisfactory, it would seem. It might be suggested, in opposition thereto, that the same reasons which preclude the tenant from asserting that the lessor or his transferee is not en- titled to a return of possession, on the ground that the lessor had no estate at the time of the lease, would seem to preclude him from making such assertion on the ground that the lessor had merely a limited estate, which has expired. To allow the tenant to retain possession as against his landlord, because another has a better right to possession, when such other has not asserted such right, would seem to furnish equal opportunity for the exercise of bad faith, whether such right in a third person had its commence- ment before or after the making of the lease. By the acquisition of possession under the lease, the lessee might be regarded, not as admitting merely that the lessor has some interest in the land, iiowever small, but as admitting that he has such an interest as will entitle him to the return of the premises upon the expiration ■of the period named in the lease. ^^®'' In only one of the cases to which we have referred, as asserting the right of the tenant to aver the expiration of the lessor's title, in connection with an action for possession, is any reason given for «uch a view, and in that case,^''" which involved a lease by in- denture, it is based exclusively on the old rule that there is no €stoppel when an interest passes. ^''^ It has been well said that such a rule, applied literally and in respect to lessees, "would bar "the estoppel in every case of a valid demise, and the tenant would be at liberty to put the landlord to proof of title, simply because 5691 In Newell v. Gibbs, 1 Watts & the paramount title constituting a S. (Pa.) 496, it is said that the prop- constructive eviction, osition that the tenant may show There is, in Fortier v. Ballance, 10 the termination of the lessor's title 111. (5 Gilm.) 41, a dictum to the "is perhaps to be taken with this effect that the tenant cannot show qualification, that it must appear the expiration of the lessor's estate that the defense is made at the in- in a summary proceeding by a land- stance, or a least with the knowl- lord. And see Henderson v. Hend- •edge, of the original lessor, or owner erson, 136 Iowa, 564, 114 N. W. 178. of the demised premises." This is "'''> Doe d. Strode v. Seaton, 2 nearly equivalent to a statement Cromp. M. & R. 728. that such a defense is good when ''^ See ante, § 76, at note 160. there has been an attornment to 512 PRECLUSION TO DENY TITLE. | 7g * that title was good."^'^* Furthermore, it may be remarked, this rule was asserted in the old books only in connection with leases by indenture, and only for the purpose of excluding the ordinary rule that if, after making a lease for years, one acquires an estate in the land, the lease will operate thereon, and it appears doubtful whether it had any operation except when the lessor, at the time of the making of the lease, had a life estate in the land.^^^ T]jg inapplicability of that rule to limit the operation of the estoppel, created by the acquisition of the possession from the lessor, with- out reference to the form of the lease, is evident.^'''* Moreover, such an estoppel, based on the form of the lease, could have no ap- plication to an action for possession after the expiration of the term, for the reason that the estoppel then ceases to have any operation.5^5 Conceding that the tenant may show, in defense to an action against him for possession, that the estate in the lessor at the time of the lease has expired by its own limitation, there is no such right in him to show that it had expired previously to the making of the lease.B^e It has been decided in one case in this country^'^^ that the tenant may, in defense to an action for rent, show that the lessor had an estate pur autre vie only, and that this expired before the accrual of the rent claimed, it being said that, "so far as the estoppel of- the tenant to deny his landlord 's title is an estoppel in pais, it arises out of his having entered into possession under that title at the begin- ning of the lease ; and he does not deny that the landlord had a title at that time, by alleging and proving that it has since ex- pired, "^'^^ and that "so far as it is an estoppel by deed, it arises 572 See 6 Am. Law Rev. at p. 22. sor, that the lessor had only an un- This article does not, however, ques- divided interest in the land, tion the applicability of the rule in 575 See ante, at note 195. this connection for the purpose of sre London & N. W. R. Co. v. West, enabling the tenant to show the ex- L. R. 2 C. P. 553; Syme v. Sanders, piration of the lessor's estate. 4 Strob. Law (S. C.) 196. 073 See ante, § 76. 577 Lamson v. Clarkson, 113 Mass. 674 In Weeks v. Birch, 69 Law T. 348, 18 Am. Rep. 498. There is a (N. S.) 759, it was decided that the slight suggestion in accordance with doctrine that there is no estoppel this view in Guthmann v. Vallery, when an interest paisses did not 51 Neb. 824, 71 N. W. 734. enable the lessee to assert, as against 578 Citing Hilbourn v. Fogg, 99 an action for possession by the les- Mass. 11; Grundin v. Carter, 99 § 78 EXPIRATION OF LESBOR'S ESTATE. 513 out of the execution of the indenture ; and some interest, as the tenant admits, having passed by the deed, he is not estopped to show what the quantity and duration of that interest was, and that it expired before the rent accrued, which the landlord now seeks to recover." So far as concerns the statement thus made in reference to estoppel in pais, we have endeavored, in a former part of this chapter, ^^s to show that the preclusion of the tenant to assert a lack of title in the lessor as a defense to a claim for rent is not properly based on an estoppel growing cut of his acquisi- tion of possession, but is a result of the fact that he has assumed a personal liability therefor, from which lack of title in the lessor does not relieve him so long as it does not affect his possession un- der the lease ; and adopting this view, the expiration of the lessor's estate evidently cannot, so long as there is no eviction of the ten- ant, affect his liability for rent. So far as concerns the statement in reference to estoppel by indenture, of the authorities cited in support thereof, only two appear fully to support it, those being English cases^*" in which it was decided that the lessee, when sued on a covenant for repairs in an indenture of lease, could show that the lessor had a life estate only, which had expired.^*^ As opposed to the view that the tenant can show, in defense to an action for rent, that the lessor's estate has expired, reference may be made to the statement found in several of the old books that if a man seised in right of his wife leases for a term of years, and the wife dies, without having had issue by him, he has a right of action against the lessee for rent incurred after the death of the wife until the heir enters f^'^ as well as to the statement of Lord Mass. 15, which, however, merely notes 567, 570). Langford v. Selmes, contain dicta to the effect that a ten- 3 Kay & J. 220, 226, also cited, con- ant may show that his landlord's tains a dictum merely. title has expired. ssiBrudnell v. Roberts, 2 Wils. =79 See ante, § 78 c (3). 143; Blake v. Foster, 8 Term R. 487. 080 The authorities cited are Tre- B82Bro. Abr., Dette, pi. 7; Avowry, port's Case, 6 Coke, 15 (ante, note pi. 123; Bac. Abr., Leases (C); 162) ; Smaleman v. Aigburrow, 3 Dixon v. Harrison, Vaughan, 46. Bulst. 272, 275 (post, note 582); The ease of Smaleman v. Aigbur- Brudnell v. Roberts, 2 Wils. 143 row, 3 Bulst. 272; s. c, sub. nom., (post, note 581); Blake v. Foster, Smalman v. Agburrow, 1 Rolle, 442, 8 Term R. 487 (post, note 581) ; Doe is cited in Lamson v. Clarkson, 113 d. Strode v. Seaton, 2 Cromp. M. & Mass. 348, 18 Am. Rep. 49, to the R. 728 (an action of ejectment, ante, effect that the lessee may show the L. and Ten. 33. 514 PRECLUSION TO DENY TITLE. 78 Holt, before referred to,''^^ that defendant in debt for rent cannot give in evidence nil habuit in tenementis without having been evicted, "if the plaintiff had been in possession, though but as ten- ant at will." Furthermore, there is an English nisi prius case''^'' to the effect that the defendant in an action for use and occupation cannot show that the lessor 's title has expired, unless he disclaims holding under him, and has commenced a fresh holding under the owner of the paramount title. There are occasional decisions in this country which are opposed to the view that the lessee can re- lieve himself of his obligation for rent by showing that his les- sor's estate has come to an end.^*^ expiration of the lessor's estate. In the report In 1 RoUe, 442, it is indeed said that "it was agreed by the whole court that if the husband leases for years the land of the ■wife rendering rent, and then the ■wife dies, that the husband will not have debt for rent incurred after- wards, since the reversion is gone, according to 9 Hen. 6." But by the report in 3 Bulst. 272, Dodderidge, J., says that by 11 Hen. 6, if the husband makes a lease of the land of his wife by indenture, and the wife dies, the husband shall have an action of debt for the rent upon the indenture before the heir enters, yet the estate is gone from the hus- band" thbugh he further says that if the husband and wife join in the lease, the husband cannot sue for rent after the wife's death. The citation 9 Hen. 6 presumably refers to 9 Hen. 6, 43 b, which is cited by Brooke in support of his position, and which, so far as dicta go, seems to support it. See, however, for a different reading of this case, 1 Dyer, 28 b, 29 a. The case of Smal- man v. Agburrow did not involve this question, but merely the quesr tion whether, if a married woman is joint tenant with another person and they, with her husband, join in a lease, and she then dies, the lease survives. Blake v. Foster, 8 Term R. 487, note 581, ante, seems op- posed to the view of Brooke. 583ChettIe V. Pound, 1 Ld. Raym. 746. See ante, note 182. 584 Balls V. Westwood, 2 Camp. 11, per Lord Ellenborough. This case is questioned by Erie, J., in Mount- noy V. Collier, 1 El. & Bl. 630, but there the lessee had attorned to the paramount title. In Claridge v. Mackenzie, 4 Man. & G. 151, it is said by Tindal, C. J., that Lord El- lenborough subsequently altered his opinion, "for in Doe d. Lowden V. Watson, 2 Starkie, 230, that learned judge held that a defendant in ejectment who had paid rent to the lessor of the plaintiff might show that his landlord, pending the term, had sold his interest in the premises; that is, in effect, the ten- ant was allowed to show an altera- tion in his landlord's title." There is an obvious distinction between the two cases of the expiration of the lessor's estate and his transfer of such estate, as we have before remarked. See ante, at 561. 585 In Tllyou v. Reynolds, 108 N. Y. 558, 15 N. E. 534, there was a lease to plaintiff for ten years which, before its termination, certain oflS- §78 EXPIRATION OF LESSOR'S ESTATE. 515 The view that the tenant may show that the lessor's estate has expired has been occasionally asserted in actions arising out of a distress levied after such expiration-^^s go, in a recent English cials of the lessor town undertooK come to an end. If by taking pos- to renew for another ten years, session he admits that the landlord's After such renewal, but before the title is good as against its possible end of the original lease, plaintiff expiration in one way, he would subleased to defendant for ten years, seem to do so as against its possible and it was held that defendant could expiration in the other. If there is not, in defense to a claim for rent any distinction between the two accruing during the second ten-year cases, it would seem that the liabil- period, assert that the renewal was ity for rent should rather survive invalid, and that consequently the when the lessor's estate terminates lessor's title had expired. The court by reason of the fact that it Is a cites Balls v. Westwood, 2 Camp. 11, life estate and that the life has supra, and distinguishes Lamson v. come to an end, since in that case Clarkson, 113 Mass. 348, 18 Am. Rep. there is, in contemplation of law, a 498, supra, partly on the ground that legal reversion, which does not exist there the reversioner had notified when a tenant for years makes a the tenant to pay rent to his land- lease for a term to endure beyond lord, and partly on the ground that the period of his own estate, "there the event on which the plain- In Ashton v. Golden Gate Lumber tiff's entire title depended occurred Co. (Cal.) 58 Pac. 1, it was decided after the defendant took possession, that so long as the tenant remains and by setting it up he denied noth- In undisputed and unquestioned pos- ing which he had once admitted," session, no claim or demand for while In the principal case the de- rent having been made by the rever- fendant "admitted the plaintiff's sioi:ier or remainderman, the term- title to be good, the whole title, the ination of the landlord's title is no title for the extended term." As to defense to rent; distinguishing these grounds of distinction, the Lamson v. Clarkson, 113 Mass. 348, mere notice by the reversioner to on the ground that there a demand the tenant not to pay rent, without for rent was made, any actual payment of rent or at- In Pordyce v. Young, 39 Ark. 135, tomment to the reversioner, seems where a lessee under a lease con- insufficient of itself to relieve the taining a clause of renewal had tenant from liability to his landlord, made a sublease to commence on it not amounting to a constructive the date of the expiration of the eviction (ante, § 73 a (6), and it is head lease, it was held that the perhaps difficult to see any distinc- lessee's failure to obtain a renewal tion between the tenant's right to and consequent lack of title after assert that the landlord's title has the expiration of his original term terminated because the life by could not be asserted by the sub- which it is measured has come to lessee in defense to a claim for rent. an end. and because the term of bsb Claridge v. Mackenzie, 4 Man. years by which it is measured has & G. 143; Prestman v. Silljacks, 52 516 PRECLUSION TO DENY TITLE. § 78 case,^*^ it was decided that a sublessee might show that the rela- tion of tenancy no longer existed, for the purpose of a distress by his landlord, owing to the fact that the. original lessor had entered for a breach of condition. This seems to accord in result with the views which we have suggested^*® as to the basis of the rule of the tenant's preclusion to deny the lessor's title in such a proceeding. When the lessor has, at the time of the lease, a limited estate, he has, it is evident, no estate in fee simple by wrong, and after his estate comes to an end there is no reversion to support the dis- tress. This view of the question lias, however, never been judi- cially asserted. (4) Repudiation of tenancy. The fact that the tenant has repudiated the tenancy and so put the statute of limitations in motion^ss does not affect the operation of the rule or rules pre- cluding the tenant from denying the landlord's title.^^** Were this not so, it is evident, such rule or rules could be avoided at will by a tenant merely by the assertion that he no longer holds under the landlord. But the cases are to the effect that if the tenant holds possession for the statutory period after his repudi- ation of the tenancy, and so obtains a valid title, this title may be asserted by him against the landlord without first relinquish- ing possession. 591 This does not involve a denial by him of the validity of the title of the lessor as it existed at the time of the lease, but is in effect an assertion that the title has passed, since the lease, out of the lessor. Md. 647. In the latter case, indeed, 43; Peyton v. Stith, 30 U. S. (5 Pet) there appears to have been no re- 485. version in the first instance, the ssi Willison v. Watkins, 28 U. S. so-called lease being an attempted (3 Pet.) 43; Catlin v. Decker, 38 conveyance in fee by one having an Oonn. 262; Morton v. Lawson, 40 estate for years. Ky. (IB. Mon.) 45; South's Heirs 5S7 Sergeant v. Nash, Field & Co. v. Marcum, 22 Ky. Law Rep. 641, [1903] 2 K. B. 304. 58 S. W. 527; Meridian Land & In- 588 See ante, § 178 c (5). dustrial Co. v. Ball, 68 Miss. 135, 8 589 See ante, § 4. So. 316 ; Greenwood v. Moore, 79 ssociemm v. "Wilcox, 15 Ark. 102 Miss. 201, 30 So. 609; Lea's LeSisee (semWe); Shelton v. Eslava, 6 Ala. v. Netherton, 17 Tenn. (9 Yerg.) 230; Henley v. Branch Bank, 16 315; Voss v. King, 33 W. Va. 236, 10 Ala. 552; Duke v. Harper, 14 Tenn. S. B. 54; Tewksbury v. Magralf, 33 (6 yerg.) 280, 27 Am. Dec. 462; Wil- Cal. 237 (dictum), lison V. Watkins, 28 U. S. (3 Pet.) CHAPTER VIII. COVENANTS FOR QUIET ENJOYMENT AND OF POWER TO DEMISE. § 79. Covenant for quiet enjoyment. a. Implication of covenant. b. Duration of implied covenant. c. Persons whose acts may constitute breach. (1) Lessor acting for himself or through others. (2) Persons claiming "under" lessor. (3) Persons claiming under paramount title. (4) Sovereign authority. d. Acts constituting breach. (1) Necessity of eviction. (2) Acts on adjoining premises. (3) Assertion of paramount title. (4) Wrongful acts. (5) Acts prior to lease. (6) Exclusion from possession. (7) Miscellaneous classes of acts. e. Persons entitled to the benefit of the covenant. f. Persons bound by the covenant. g. Damages recoverable for breach. 80. Covenant of power to demise. § 79. Covenant for quiet enjoyment. a. Implication of covenant. A formal instrument of lease ordinarily contains an express covenant on the part of the lessor for quiet enjoyment by the lessee, but, according to tlie weight of authority, even though such a covenant is not expressed, it will be implied.! This doctrine, it has been well said,^ seems to 1 In Knapp v. Town of Marlboro, joy the premises without interrup- 29 Vt. 282, it is said that a covenant tion," but this appears to be a cov- for quiet enjoyment is implied from enant implied in fact, In effect an a covenant that the lessee shall express covenant for quiet enjoy- "hold, use, occupy, possess and en- ment. In Ellis v. Welch, 6 Mass. 518 COVENANTS FOR QUIET ENJOYMENT. § 79 flow as a natural consequence from the original character of a de- mise for years, as being not a conveyance but merely a covenant that the lessee should enjoy the land, a breach of which entitled him to the recovery of damages.* The cases bearing upon the question of such implication of the covenant are as follows : By a number of quite early authorities it is stated that from the presence of the words "demisi" or "concessi" the law will imply a covenant by the lessor on which he may be subjected to liabil- ity by the lessee in case the latter is evicted,* and the same effect was given to the English equivalents of these words, to-wit; "demise" and "grant. "^ And by the later cases it is assumed without question that the words give rise to an implication of a covenant for quiet enjoyment.^ On the question, however, whether a covenant of quiet enjoyment will be implied in the ab- sence of the words ' ' demise " or " grant ' ' the cases are not in accord. In two states in this country it has been decided that it will not be implied in such a case, and that words of letting other than "demise," such as "let" or "lease," are not sufficient for this purpose.'' In other states, however, a different view is taken, 246, 4 Am. Dec. 122, it is said that a 589, 609; Mostyn v. West Mostyn covenant that the lessee shall "hold Coal & Iron Co., 1 C. P. Div. 145; and occupy" during the term con- Budd-Seott v. Daniell [1902] 2 K. stitutes a general covenant for quiet B. 351; Iggulden v. May, 9 Ves. Jr. enjoyment. , 330; Barney v. Keith, 4 "Wend. (N. A clause whereby the lessor, "for Y.) 502; Stott v. Rutherford, 92 U. himself, his heirs and assigns," S. 107; Folts v. Huntley, 7 Wend, "against all persons whatsoever law- (N. Y.) 210; Ware v. Lithgow, 71 fully claiming the same, shall and Me. 62; Groome v. Ogden City Corp., will, during the term, warrant and 10 Utah, 54, 37 Pac. 90; Lanigan v. defend" the premises, was held to Kille, 97 Pa. 120, 39 Am. Rep. 797; operate as an express covenant for Headley v. Hoopengarner, 60 W. Va. quiet enjoyment. Williams v. Bur- 626, 55 S. E. 744. rell, 1 C. B. 402. ^ Levering v. Lovering, 13 N. H. 22 Pollock & Maitland, Hist. Eng. 517; Mershon v. Williams, 63 N. J. Law, 106, note. Law, 398, 44 Atl. 211. s See ante, § 12 a. In Barneycastle v. Walker, 92 N. » Andrews' Case, Cro. Bliz. 214; C. 198, it is said that there is no Spencer's Case, 5 Coke, 16; Coleman "implied contract" that the lessor v. Sherwyn, 1 Show. 79, 1 Salk. 137. will not molest the lessee in his 5 Style V. Hearing, Cro. Jac. 73; possession, but there is an "Implied Nokes' Case, 4 Coke, 81; Deering v. condition" to that effect on breach of Farrington, 1 Mod. 113, Freem. 367. which the lessee is discharged, cit- e Burnett v. Lynch, 5 Barn. & C. ing Taylor, Landl. & Ten. § 386, I 79 IMPLICATION OF COVENANT. 5I9 and any words of leasing are regarded as sufficient,® while in numerous cases it is stated or assumed that on every lease of land a covenant for quiet enjoyment is to be implied.® So it is said by a writer of the highest authority on this branch of the law that "in the absence of words of leasing, as for instance where the lease is by parol, it is well settled that the law will imply a cove- nant for quiet enjoyment from the mere relation of landlord and tenant. "10 In England there has at times been considerable uncertainty as to whether there is any implication of a covenant for quiet en- joyment in the absence of the words "demise" or "grant." The most recent decision is to the effect that the particular words of leasing referred to have no peculiar effect different from that of other words of leasing, and that an undertaking for quiet enjoy- ment as against the acts of the lessor and those claiming under him is to be implied from the mere relation of landlord and ten- ant." which furnishes not the slightest 437; Maxwell v. Urhan, 22 Tex. Civ. support for the statement. App. 565, 55 S. W. 1124; Eldred v. sMaule v. Ashmead, 20 Pa. 482 Leahy, 31 Wis. 546; Shaft v. Carey, ("lease") ; Young v. Hargrave's 107 "Wis. 273, 83 N. W. 288 (sem- Adm'r, 7 Ohio (pt. 2) 63 ("lease and ble) ; Owens v. Wight, 5 McCrary, rent"); Black v. Gilmore, 9 Leigh 642, 18 Fed. 865; McDowell v. Hy- (Va.) 448, 33 Am. Dec. 253 ("lease man, 117 Cal. 67, 48 Pac. 984; Hoag- and rent") ; Hamilton v. Wright's land v. New York, C. & St. L. R. Co., Adm'r, 28 Mo. 199 ("lease"). Ill Ind. 443, 12 N. E. 83; Riley v. 9 Pickett V. Ferguson, 45 Ark. 177, Hale, 158 Mass. 240, 33 N. B. 491; 55 Am. Rep. 545; Abrams v. Watson, Herpolsheimer v. Funke, 1 Neb. 59 Ala. 524; Duff v. Wilson, 69 Pa. Unoff. 471, 95 N. W. 688; Geer v. 316; Ross v. Dysart, 33 Pa. 452; Boston Little Circle Zinc Co., 126 City of New York v. Mabie, 13 N. Y. Mo. App. 173, 103 S. W. 151. (3 Kern.) 160, 64 Am. Dec. 538 "> Rawle, Covenants for Title, § (semble); Vernam v. Smith, 15 N. 274, citing Bandy v. Cartwright, S Y. 332 (semble); Mack v. Patchln, 42 Exch. 913; Carson v. Godley, 26 Pa. N. Y. 167, 1 Am. Rep. 506; Hayner v. 117, 67 Am. Dec. 404; Ross v. Dys- Smith, 63 III. 430, 14 Am. Rep. 124; art, 33 Pa. 453; Dexter v. Manley, 58 Gazzolo V. Chambers, 73 111. 75; Mass. (4 Gush.) 14, Baugher v. Wilkins, 16 Md. 35, 77 n Budd-Scott v. Danlell [1902] 2 Am. Dec. 279; Duncklee v. Webber, K. B. 351, following Bandy v. Cart- 151 Mass. 408, 24 N. E. 1082; Ed- wright, 8 Exch. 913, and Hall v. City wards v. Perkins, 7 Or. 149; Hanley of London Brewery Co., 2 Best & S. v. Banks, 60 Okl. 79, 51 Pac. 664; 737, and disapproving dicta contra Barnes v. Wilson, 116 Pa. 303, 9 Atl. in Baynes & Co. v. Lloyd & Sons 520 COVENANTS FOR QUIET ENJOYMENT. § 79 It is proper to remark that some of the eases containing the statement that a covenant for quiet enjoyment is to be implied in the ease of every lease involved merely the liability of a tenant for rent after eviction,^^ and it would seem from the introduction of the reference to the liability for rent that the court may, in such cases, have been under the impression that the suspension of such liability after eviction is due to the fact that there is such an implied covenant. The tenant's liability for rent, how- ever, is suspended upon his eviction, independently of whether the eviction constitutes a breach of any covenant for quiet enjoy- ment. For instance, if there is an express covenant against dis- turbance by the lessor or those claiming under him, this, as here- after stated, limits the effect of the implied covenant, so that there is in such case no covenant against disturbance by one having paramount title, and yet such disturbance, if it amounts to an eviction, will no doubt suspend the right to rent. And so it was apparently decided in New York that, though in a so-called "lease in fee," that is, a convej'ance in fee subject to rent, there was no express covenant for quiet enjoyment, and none could, under the local statute, be implied,!^ the eviction of the lessee was a good defense to an action for rent.i* And in Missouri it has been said that "a tenant without covenants would have the same redress against his landlord for illegal acts that he would have against strangers, and moreover would be entitled to all those defenses wlhich the law allows to tenants in actions for the nonpayment of rent which grow out of an eviction or the wrongful acts of landlords. "15 In a few states there are to be found statutory provisions that no covenant shall be implied in any conveyance of real estate,^® [1895] 2 Q. B. 610. Jones v. Laving- n Carter v. Burr, 39 Barb. (N. Y.) ton [1903] 1 K. B. 256 decides that 59. an implied covenant does not extend is Maeder v. City of' Carondelet, 26 to a disturbance by paramount title. Mo. 112. See Markham v. Paget [1908] 1 Ch. is Michigan Comp. Laws 1897, § 697, and post, at note 51. 8959; Bell. & C. Ann. Codes & St. 12 See Ross v. Dysart, 33 Pa. 452; Oregon § 5338; Wyoming Rev. St. Hayner v. Smith, 63 111. 430; Field 1899, § 2734; Wisconsin Rev. St. v. Herrick, 10 111. App. (ID' Bradw.) 1898, § 2204. In Minnesota (Rev. 591; Maxwell v. Urban, 22 Tex. Civ. Laws 1905, § 3342) the statute ap- App. 565, 55 S. W. 1124. plies in terms to "any conveyance." 13 See post, at note 16. The present New York law (Real § 79 IMPLICATION OF COVENANT. 521 and the question whether a lease is a conveyance of real estate within such a proA'ision has occasioned considerable difficulty. In Oregon it has been decided that a lease is not within the scope of the provision,^'' and there is an explicit decision to that effect in New York,i^ but in view of the language of later cases in that state, it appears questionable whether such covenant for quiet enjoyment can be implied in any lease for more than three years, another statutory provision being to the effect that the term "real estate" shall include all chattels real except leases for a term not exceeding three years.''* And in Wisconsin it has been de- cided that such a prohibition of an implication of a covenant in a conveyance of real estate applied to a lease for five years, in view of a statutory provision that the term "conveyance", in- cludes all instruments creating interests in real estate except wills and leases for not more than three years.^" It is possible that, by the application of the doctrine that a lessor cannot derogate from his grant, hereafter referred to,2i the effect of such a stat- ute might be in some cases avoided. That is, though a covenant could not be implied against a disturbance of the lessee by the lessor, it might be considered that such a disturbance involved a derogation from the grant. Prop. Law 1896, § 216) says "con- though exceeding three, is within veyanee of real property," not "con- the statute excluding such covenants, veyance of real estate," as formerly. Graves v. Berdon, 26 N. Y. 498;' 17 Edwards v. Perkins, 7 Or. 149. Mack v. Patehin, 42 N. Y. 167, 1 Am. 18 City of New York v. Mabie, 13 Rep. 506; Grover J., in Burr v. Sten- N. Y. (3 Kern.) 151, 64 Am. Dec. ton, 43 N. Y. 462, 464. While in 538. others, including the latest utter- ly In the case- of Koeber v. ance we have found on the subject, Somers, 108 Wis. 497, 84 N. W. the statute is, without argument, 991, 52 L. R. A. 512, the follow- assumed to exclude implied cove- ing statement as to the New York nants from leases longer than three cases on the subject is made: "In years. Church, C. J., in Burr v. some cases City of New York v. Ma- Stenton, 43 N. Y. 462; Coffin v. City bie has been cited merely to support of Brooklyn, 116 N. Y. 159, 22 N. B. the proposition that implied cov- 227." A conveyance in fee subject enants exist in leases for less than to rent, a so called "lease in fee," is three years. Vemam v. Smith, 15 evidently within the statutory pro- N. Y. 327; Edgerton v. Page, 20 N. vision. Carter v. Burr, 39 Barb. (N. T. 281; Boreel v. Lawton, 90 N. Y. Y.) 59. 293, 43 Am. Rep. 170; Vann v. Rouse, 20 Koeber v. gomers, 108 Wis. 497, S4 N. Y. 401. In others it is as- 84 N. W. 991, 52 L. R. A. 512. sumed that no lease for years, 21 See .post, § 128, at notes 33-38. 522 COVENANTS FOR QUIET ENJOYMENT. § 79 The implied covenant has been regarded as excluded by an ex- press covenant by the lessor to aid the lessee in keeping posses- sion.22 jt may likewise be excluded by an express provision for its exchision.23 And though it is said to be "restrained" by an express covenant of a qualified character,^* it seems that the effect of such an express covenant is absolutely to exclude the implied covenant, since it is no longer operative for any purpose. b. Duration of implied covenant. An implied covenant, as distinguished from an express covenant, will not, it has been held, endure longer than during the continuance of the estate out of which the lease is granted. ^^ If, for instance, one having an es- tate for life makes a lease for years and dies before the expiration of the lease, whereupon the lessee is evicted by the remainderman, the lessee cannot assert any liability against the personal repre- sentatives of the lessor under the covenant. ^8 In one state, how- ever, it has been decided that this rule has no application when the life tenant might have made a good lease for the whole term, as when he has a power of disposition after his death.^'^ On the prin- ciple above stated it has been decided in England that a tenant' from year to year under a tenant for years has no right of action on the implied covenant, on account of an eviction by the chief landlord after the expiration of the original term.^s c. Persons whose acts may constitute breach — (1) Lessor acting for himself or through others. The covenant for quiet en- joyment protects the lessee against interference with his enjoy- ment by the acts of the lessor himself,^^ and acts by others under 22 O'Connor v. City of Memphis, 20 Swan v. Stransham, 3 Dyer, 257 75 Tenn. (7 Lea) 219. b, Benl. & D. 150. 23Maeder v. City of Carondelet. 27 Hamilton v. Wright's Adm'r, 26 Mo. 112. 28 Mo. 199. 2. See post, at notes 52 53 ^^ ^ ^^^ 25 Adams v. Gibney, 6 Bing. 656; Penfold y. Abbott, 32 Law J. Q. B. ^- "= Schwartz v. Locket, 61 Law 67; Hyde v. Dean & Canons of Wind- '^- (N. S.) 719. sor, Cro. EIlz. 552; Baynes & Co. 29 See McDowell v. Kyman, 117 V. Lloyd & Sons [1895] 2 Q. B. 610; Cal. 67, 48 Pac. 984; Berrington v. Cheiny v. Langley, 1 Leon. 179; Casey, 78 111. 317; Kansas Inv. Co. Bragg V. Wiseman, 1 Brownl. & G. v. Carter, 160 Mass. 421, 36 N. B. 22; City of Brookhaven v. Baggett, 63; Herpolsheimer v. Funke, 1 Neb. 61 Miss. 383 ; McClowny v. Croghan's UnofE. 471, 95 N. W. 688. Adm'r, 1 Grant Cas. (Pa.) 311. I 79 DISTURBANCE BY CLAIMANT UNDER LESSOR. 523 the direct authority of the lessor are constructively his acts for this purpose.*" So it has been decided that the building of a wall on part of the premises by a third person, under authority from the lessor, who supposed such part not to be included in the lease, constituted a breach of the covenant,^! and a like de- cision was made when the adjoining owner, by authority from the lessor, entered on the leased premises to erect a party wall, and, this being necessarily an interference with the lessee's enjoy- ment, the fact that such authority was granted on condition that the excavation should not cause damage to the lessee was regarded as immaterial.*^ g^t the acts of third persons cannot be regarded as authorized by the lessor and therefore constructively his acts so as to impose liability under the covenant merely because they were the unforeseen resiilts of a course of action on his part, but they must, it seems, be directly authorized by him.** The author- ity from the lessor to a third person doing the act complained of as a breach may, apparently, be given before or after the mak- ing of the lease.** It appears to have been decided that the lessor is liable as if he had himself interfered with the lessee's posses- sion, when he procures one, to whom he has leased adjoining premises, to institute a proceeding to prevent the use of the premises for the purpose for which the lease was made.*^ (2) Persons claiming "under" lessor. The covenant for quiet ' enjoyment may be general in terms, to the effect that the lessee shall quietly enjoy the premises, or it may be expressly restricted to the acts of the lessor or of those persons who claim through or under him, it being then referred to as a "qualified" or "limited" covenant. A general covenant for quiet enjoyment is not, it seems, restrained by a qualified covenant for title in the same instrument unless an express intention appears to that so Levitzky v. Canning, 33 Cal. 32 Collins v. Lewis, 53 Minn. 78, 54 ' 1*1 299; City of New York v. Mabie, 13 N. W. 1056. N. Y. (3 Kern.) 151, 64 Am. Dec. '' Surget v. Arighi, 19 Miss. (11 538; Sherman v. Williams, 113 Mass. Smedes & M.) 87, 49 Am. Dec. 46, ,„.,,„. „ r„n TT 4. where a mob "moved by exaspera- 481, 18 Am. Rep; 522; Harmont v. ^. „ . ^ ^r, , „ f ^.v tion against the lessor expelled the Sullivan, 128 Iowa, 309, 103 N. W. ^^^^^^ 951; Seaman v. Browning, 1 Leon. 84 Anderson v. Oppenheimer, 5 Q. 157. B. Ddv. 602. 31 Sherman v. Williams, 113 Mass. 35 Williams v. Getman, 114 App. 481, 18 Am. Rep. 522. Div. 282, 99 N. Y. Supp. 977. 524 COVENANTS FOR QUIET ENJOYMENT. § 79 effect, or unless the covenants are inconsistent,^® nor does a re- stricted or qualified covenant for quiet enjoyment control a cove- nant for title absolute in terms unless the language shows that the purpose of the two covenants was the same, or unless they are otherwise connected by the language of the instrument.^^ A number of cases have arisen in England as to the construc- tion of the language of a qualified covenant against the acts ot the lessor and persons claiming by, from, or under him, and the result of these cases seems to be that it includes persons whose rights were derived from the lessor, although they were derived before and not after the making of the lease. Thus it has been held that a person claiming under a settlement previously made by the lessor,^^ or the appointee under a power previously exe- cuted by him,39 is within these words, as is, apparently, one to whom the lessor has previously leased the same*" or adjacent*^ premises. And so a recovery of dower by the widow of the cove- nantor has been held to involve a breach of such a covenant.*^ But a claim made by one adversely to him, as when the disturb- ing act was a distress for a tax due from the lessor before the lease, has been held not to be by one claiming "under" him,** and such words in a sublease have been regarded as giving the sublessee no right of action against the sublessor when the super- ior landlord re-entered on the premises subleased for the sub- lessor's breach of a covenant of the original lease, in failing to pay rent and repair adjoining premises covered by such lease but not by the sublease,** though a different view was taken wh(3n the head landlord's re-entry was by reason of the subles- sor's act in consenting to judgment for possession in favor of the 36 Raw! e, Covenants for Title, § Div. 547; Harrison V. Muncaster 291; Sheets v. Joyner, 11 Ind. App. [1891] 2 Q. B. 680. 205, 38 N. B. 830. 4= Anonymous, Godt. 333; Shep- 37 Rawle, Covenants for Title, §§ pard's Touchstone, 171. 289, 290; Browning v. "Wright, 2 « Stanley v. Hayes, 3 Q. B. 105. Bos. & P. 13. This is so, a fortiori, if the taxes be- ssHurd v. Fletcher, 1 Doug. 43; came due before the lessor owned Evans v. Vaughan, 4 Barn. & C. 261. the property. See. West v. Spauld- 30 Calvert v. Sebright, 15 Beav. ing, 52 Mass. (11 Mete.) 556; Run- 156. dell V. Lakey, 40 N. Y. 513; Ingalls *o Ludwell V. Newman, 6 Term R. v. Cooke, 21 Iowa, 560, cited Rawle, 458; Rolph v. Crouch, L. R. 3 Exch. Covenants (5th Ed.) p. 124, note 1. 44. "Kelly v. Rogers [1892] 1 Q. B. « Sanderson v. Berwick, 13 Q. B. 910. § 79 DISTURBANCE BY PARAMOUNT CLAIMANT. 525 former, he having in fact no right of re-entry under the circum- stances.'*'' Where the cos-enant of an under lease was against disturbance by "the acts, means or procurement" of the lessor or of persons claiming under him, it was held that a re-entry by the superior landlord for breach by the under lessee's tenant of a covenant of the head lease as to the use of the premises was not within the covenant,*^ and where one took a lease for ninety-nine years from a tenant in tail and his son, the fact that his subtenant was evicted by the remainderman after the termination of the ten- ancy in tail was not regarded as constituting a "neglect or de- fault" on the part of the sublessor, within a covenant for quiet enjoyment against himself and all persons claiming Tinder him or by his neglect or default.*'^ But when the covenant in the under lease provided against any interruption by the sublessor or of any other person "by his means, procurement or consent," it was decided that re-entry by the superior landlord by reason of the underlessor's default in payment of rent was a breach of the cove- nant,** and when one purchasing land took a conveyance to him- self and his wife and to the heirs of himself, and subsequently leased it, an eviction by his widow was regarded as a breach of the covenant against interruption on the part of the lessor "or of any other person by or through his means, title, or procure- ment. "^^ (3) Persons claiming under paramount title. An express cove- nant in general terms for quiet enjoyment is broken by an evic- tion by one having a paramount title,^'' while a qualified cove- nant, if limited to the acts of persons claiming "under" the les- sor only, is obviously not broken by an eviction by one whose title is not derived, directly or indirectly, from the lessor. In England the view has been adopted that the implied cove- nant for quiet enjoyment, like the qualified covenant there in use, applies to the acts of the lessor and those claiming under him only.51 In this country, on the contrary, there seems to be no <5 Cohen v. Tannar [1900] 2 Q. B. *« Stevenson v. Powell, 1 Bulst. 609. 182. *8 Spencer v. Marriott, 1 Barn. & *!> Butler v. Swlnnerton, Cro. Jac. C. 457; Dennett v. Atherton, L. R. 656. 7 Q. B. 316. 50 See post, § 79 d (3). « Woodhouse v. Jenkins, 9 Bing. si Jones v. Lavington [1903] 1 K. 431. B. 253. And see, for Intimations to 526 COVENANTS FOR QUIET ENJOYMENT. § 79 suggestion that the operation of the implied covenant is in any way more limited than that of an express covenant stated in gen- erp,l terms, or that it does not apply to the acts of persons claim- ing under paramount title. The implied covenant for quiet en- joyment may, however, be in effect qualified in this regard by the language of an express covenant of the same character, on the principle expressum facit cessari taciturn. Thus, if there is an express covenant against the acts of the lessor and of those claiming under him, no covenant will be implied against the acts of a third person having paramount title.^^ ^nd so the covenant may be limited by express provisions in the lease so as not to apply to the acts of a particular person or class of persons.^s (4) Sovereign authority. A general covenant for quiet en- joyment is not broken by a disturbance by acts of the sovereign authority.^* Thus the fact that the tenant is evicted by the municipality owing to the taking of the land for a street does not give any right of action on the covenant, since compensation for his loss of the term is obtainable otherwise.^^ And it has been decided that he has no right of recovery even when the eviction is by a public corporation which acquired the reversion and then instituted the condemnation proceedings against the leasehold this effect, Sheppard's Touchstone, Grotenkemper, 1 Gin. R. (Ohio) 88; ]65; Holder v. Taylor, Hob. 12; O'Connor v. City of Memphis, 75 Andrews' Case, 1 Leon. (pt. 2) 104; Tenn. (7 Lea) 219. Hall V. City of London Brewery Co., ss So in O'Connor v. Daily, 109 2 Best. & S. 737; Budd-Scott v. Dan- Mass. 235, it was held that a provi- iell [1902] 2 K. B. 351. There is, in sion in the lease that "in case the Hart V. Windsor, 12 Mees. & W. 66, land is sold the lessees may carry a dictum that the implied covenant away their improvements" showed applies to an interference by one an understanding that the lessor claiming under paramount title, might sell, and consequently no See remarks of Swinfen Eady, J., covenant of quiet enjoyment could in Markham v. Paget [1908] 1 Ch. be implied as against a disposses- 697, as to Andrews' Case, 1 Leon, sion by the purchaser. And see Mc- (pt. 2) 104. Cormick v. Millburn & Stoddard Co., saNokes' Case, 4 Coke, 81; Merrill 57 Minn. 6, 58 N. W. G&O. V. Frame, 4 Taunt. 329; Line v. siRawle, Covenants for Title, f Stephenson, 5 Blng. N. C. 183; 129. Crouch V. Fowle, 9 N. H. 219, 32 Am. ss Ellis v. Welch, 6 Mass. 246, 4 Dec. 350; Burr v. Stenton, 43 N. Y. Am. Dec. 122; Frost v. Earnest, 4 462; Groome v. Ogden City Corp., Whart. (Pa.) 86; Pabst Brew. Co. 10 Utah, 54, 37 Pac. 90; Tooker v. v. Thorley, 127 Fed. 439. § 79 ACTS CONSTITUTING BREACH. 527 interest.*® Likewise the fact that the municipal authorities re- move the building on the premises in the interest of public safety"'' does not involve a breach of the covenant. It has been decided, however, that if the municipal authorities merely order the lessor either to make the building safe or to remove it, he is liable under the covenant if he takes it down when he might have made it safe.** An entry by the lessor to make repairs is not a breach if this is under a municipal order.*^ It has been decided that an interference by the lessor with the tenant's enjoyment is a breach of the covenant, even though such interference was required by an ordinance, if such ordinance ia invalid.®" But in another case, the fact that the opening of a street over the demised premises was under an unconstitutional statute was held not to render the lessor liable for removing the building thereon, he having done so under a municipal order.^i Somewhat analogous to the above decisions, relieving the les- sor from liability under his covenant for acts done under sover- eign authority, is a decision, rendered in Pennsylvania, that th^; exercise by the owner of adjoining property of the right there given him by statute to remove a partition wall for the purpose of erecting another wall does not involve a breach of the cove- nant, although it does involve an interference with the tenant's enjoyment.®^ A covenant for quiet enjoyment in a lease of a theatre does not protect the tenant against interference by the public author- ities owing to the tenant 's attempted use of scenery of a particu- lar character in violation of an ordinance.** d. Acts constituting breach— (1) Necessity of eviction. 56 Goodyear Shoe Mach. Co. v. Bos- lessor's failure to make it safe, ton Terminal Co., 176 Mass. 115, 57 LIndwall v. May, 111 App. Div. 457, N. E. 214; Manchester, S. & L. R. 97 N. Y. Supp. 821. Co. V. Anderson [1898] 2 Ch. 394. 59 Coddington v. Dunham, 35 N. 57 Noyes v. Anderson, 8 N. T. Y. Super. Ct. (3 Jones & S.) 412. Super. Ct. (1 Duer) 342; Connor v. eo Eldred v. Leahy, 31 Wis. 546. Bernheimer, 6 Daly (N. Y.) 295; 61 Dunn v. Mellon, 147 Pa. 11, 23 Achlers v. Rehlenger, 1 City Ct. R. Atl. 210, 30 Am. St. Rep. 706. (N. Y.) 79. 62 Barns v. Wilson, 116 Pa. 303, 9 58 Kansas Inv. Co. v. Carter, 160 Atl. 437. Mass. 421, 36 N. E. 63. So where asKiernan v. Bush Temple of the building was destroyed by the Music Co., 229 111. 494, 82 N. E. municipal authorities owing to the 410. 528 COVENANTS FOR QUIET ENJOYMENT. § 79 The extent or character of the interference with enjoyment neces- sary to constitute a breach of the covenant is a question on which the cases do not present any harmonious rule. There are decis- ions and dicta in this country to the efPect that an eviction of the tenant, either total or partial, is necessary for this purpose.^* Under such a view, it seems, having regard to the nature of an eviction,65 there cannot be any breach of the covenant unless the lessor is either actually ousted from part or the whole of the premises, or unless he vacates them in whole or in part as a result of the acts complained of. In some cases, however, in which there is stated to be an eviction constituting a breach of the cove- nant, it does not appear that the lessor 's possession of the prem- ises, as distinct from his right of enjoyment, had been in any way affected.^8 Equivalent, it seems, to the statement that an eviction is necessary to constitute a breach of the covenant, is the statement, occasionally made, that a "mere trespass" by the landlord, without any assertion of title, actual or constructive, is not sufficient for the purpose.^''' 6i Boreel v. Lawton, 90 N. Y. 293, whicli constituted a breach of the 43 Am. Dec. 170; Rhinelander v. covenant, though the lessees, so far Martin, 23 Abb. N. C. 267, 7 N. Y. as appears, remained in possession. Supp. 154; Levy v. Bend, 1 E. D. And in Brown v. Holyoke Water Smith (N. Y.) 169; Reynolds v. Mel- Power Co., 152 Mass. 463, 25 N. E. drum, 33 N. Y. St. Rep. 664, 11 N. 966, 23 Am. St. Rep. 844, it was held Y. Supp. 568; George A. Fuller Co. that there was an eviction and con- V. Manhattan Const. Co., 44 Misc; sequent breach of the covenant when 21s, 88 N. Y. Supp. 1049; Greenwood the lessor cut off the power which V. Wetterau, 84 N. Y. Supp. 287; In- he had agreed to furnish, although ternational Trust Co. v. Schumann, it does not appear that the tenant 158 Mass. 287, 33 N. B. 509; Kimball vacated. In Herpolsheimer v. Funke, V. Grand Lodge of Masons, 131 Mass. 1 Neb. UnofC. 471, 95 N. W. 688, 59; Avery v. Dougherty, 102 Ind. where the obstruction of a show 443, 2 N. E. 123, 52 Am. Rep. 680; window by the lessor was regarded Levitzky v. Canning, 33 Cal. 299. as an eviction for this purpose, it And see Skally v. Shute, 132 Mass. does not appear that the tenant re- 367; Roth v. Adams, 185 Mass. 341, linquished possession. 70 N. E. 445. 67 Lloyd v. Tomkies, 1 Term R. 66 See post, chapter XVII. 671; Avery v. Dougherty, 102 Ind. 66 So in York v. Steward, 21 Mont. 443, 2 N. E. 123, 52 Am. Rep. 680; 515, 55 Pac. 29, 43 L. R. A. 125, it Bdgerton v. Page, 20 N. Y. 281; City is said that there was a construe- of New York v. Mabie, 13 N. Y. (3 tive eviction by the overflow of Kern.) 151, 64 Am. Dec. 538. In water from adjoining premises Penn v. Glover, Cro. Eliz. 421, a cov- § 79 ACTS CONSTITUTING BRE3ACH. 529 The theory that an eviction is necessary to constitute a breach of the covenant is ignored in several decisions in this country, acts apparently falling short of an eviction being regarded as sufficient for the purpose. So it has been said that the lessor, without being guilty of an actual physical disturbance of the ten- ant's possession, may so interfere vpith his enjoyment as to be liable in damages/'^ And the mere bringing of an action against the lessee by the lessor to recover the premises, accompanied by a denial of the former's right to possession, has been regarded as a breach.es In another state it has been decided that the making of an excavation on the premises under authority of the landlord constituted a breach of the covenant, without mention of any necessity of an eviction or of a vacation of the premises by the ten- ant J" Even in Massachusetts, where the necessity of an eviction has been positively asserted,^i it has apparently been held that there was a breach of the covenant when the lessor interfered with the lessee's water power, though there was no vacation of the premises by the latter J^. And it was there said that the mere enant by a lessee not to "molest" quiet enjoyment, though in the Vir- copyhold tenants of the lessor was ginia case it is said to be an action held not to be broken by an entry to of covenant. In International Trust make a personal assault on such a Co. v. Schumann, 158 Mass. 287, 33 tenant. N. E. 509, the bringing of a suit by «8 Boyer v. Commercial Bldg. Inv. the landlord to eject the tenant was Co., 110 Iowa, 491, 81 N. W. 720, cit- held not to be a breach of the cov- ing Keating v. Springer, 146 111. 481, enant, since the tenant remained In 34 N. E. SO-5, 22 L,. R. A. 544, 37 possession, and hence there was Am. St. Rep. 175, in which latter no eviction. case, however, the interference ap- '"> Collins v. Lewis, 53 Minn. 78, pears to have been a breach of an 54 N. W. 1056. express covenant against building 7i Kimball v. Grand Lodge of near the premises Masons, 131 Mass. 59; International sBLevitzky v. Canning, 33 Cal. Trust Co. v. Schumann, 158 Mass. 299. In Hubble v. Cole, 88 Va. 236, 287, 33 N. E. 509. 13 S. E. 441, 13 L. R. A. 441, 13 L. t2 Dexter v. Manley, 58 Mass. (4 R. A. 311, 29 Am. St. Rep. 716, and Cush.) 14; Brown v. Holyoke Water- Madox V. Humphries, 24 Tex. 195, Power Co., 152 Mass. 463, 25 N. B. It is decided that the action of the 966, 23 Am. St. Rep. 844. In the lat- lessor in wrongfully obtaining an In- ter case there was apparently a junction against the lessee's use of mere breach of a contract to furnish the premises gives a right to dam- power, the lessor removing the belt ages, but it is not stated that the which transmitted the power from recovery is on the covenant for his own premises, and this was said L. and Ten. 34. 530 COVENANTS FOR QUIET ENJOYMENT. § 79 erection, by authority of the lessor, of a chimney in such a way as to cut off light and air "necessary for the beneficial use of" the premises leased was "a substantial interruption of plaintiff's right to quiet enjoyment."'^ Whatever may be the rule in the various states in this country as to the necessity of eviction to constitute a breach of the cove- nant for quiet enjoyment, it is apparently settled by the later cases in England that there no such requirement exists, it being said to be a question for the jury in each case whether the cove- nant has been brokenJ* There the action of the lessor in notify- ing the lessee's tenant not to pay rent to the lessee is, at least if acted on, regarded as a breachJ^ (2) Acts on adjoining premises. The acts alleged to consti- tute a breach of the covenant for quiet enjoyment by the lessor or one claiming under him are frequently acts done, not upon the leased premises, but upon adjoining property. What classes of acts on adjoining premises are sufficient to constitute a breach, apart from any question of the necessity of an eviction, does not clearly appear from the cases. It has in one state been decided that if the landlord allows the premises to be flooded by water flowing from adjoining premises controlled by him, there is a breach of the covenant,'^^ and in England it was held that the escape of water upon the demised premises as a result of a proper use, by another tenant of the same lessor, upon adjoining premises, of insufficient drains con- structed by the lessor, was a breach of a covenant against dis- turbance by the lessor or by persons lawfully claiming under him.'''^ In another jurisdiction it has been decided that a flow of water from adjoining premises, -not resulting in the relinquish- ment of possession by the tenant, does not constitute a breach.'^'^ to be "an eviction from an import- '* See Sanderson v. Mayor of Ber- ant part of the premises let." As wick-upon-Tweed, 13 Q. B. Div. 547; before remarked (ante, § 24 a, at Budd-Scott v. Daniell [1902] 2 K. B. note 331), a contract to furnish 351. power cannot properly be regarded 75 Edge v. Boileau, 16 Q. B. Div. as a lease. 117. " Case V. Minot, 158 Mass. 577, 33 76 York v. Steward, 21 Mont. 515, N. E. 700, 22 L. R. A. 563. In this 55 Pac. 29, 43 L. R. A. 125. case it was held that there was an 77 Sanderson v. Mayor of Berwick- implied grant of the right to such upon-Tweed, 13 Q. B. Div. 547. necessary light and air. 78 Bdgerton v. Page, 20 N. Y. 281. § 79 ACTS CONSTITUTING BREACH. 531 In one state the action of the lessor in making improvements upon the adjoining premises, with the effect of cutting off the water supply, injuring the lessee's furniture, and so impeding ingress and egress as to cause the lessee's lodgers to leave, has been re- garded as involving a breach of the covenant, without reference to whether the lessor was guilty of negligence^* A permanent obstruction by the lessor of a right of way appur- tenant to the leased premises has been regarded as a breach of the covenant,*" but a merely temporary obstruction, rendering the access to the premises for the time less convenient, in the course of the making of improvements in the neighborhood, is not within the covenant.*^ In two states, the closing of a door leading out of the demised premises to adjoining premises owned by the lessor, the effect of which was to interfere with the les- see's business, was regarded as a breach ,^2 and there is a case to the effect that a breach occurs as against a tenant of offices in a building, if the lessor or his agent locks the outside door of the building each evening at six o'clock.*^ The same view has been taken of the placing of an obstruction by the lessor in front of a show window belonging to the leased premises.®* It has been decided that the lessee of an office in a building has no right of action on the covenant merely because the land- lord changes the balance of the building into a hotel, thus ren- dering the leased room unsuitable for the lessee 's business.®^ And a like decision has been made with reference to the lessor's fail- ure to keep adjoining premises in repair, the lessee retaining possession.*® As previously indicated,*'^ acts on adjoining premises, inter- In Vann v. Rouse, 94 N. T. 401, W. 288. See Coulter v. Norton, 100 where this was regarded as effecting Mich. 389, 59 N. W. 163, 43 Am. St. a breach, the tenant vacated as a Rep. 458, and see post, §§ 128, 135. result of the overflow. ss Maclennan v. Royal Ins. Co., 39 79 McDowell V. Hyman, 117 Cal. U. C. Q. B. 515. 67, 48 Pac. 984. 8+ Herpolsheimer v. Funke, 1 Neb. 80 Morris v. Edgington, 3 Taunt. Unoff. 471, 95 N. W. 688. 24; Andrews v. Paradise, 8 Mod. 318. 85 Tucker v. Du Puy, 210 Pa. 461, 81 Manchester S. & L. R. Co. v. 60 Atl. 4. But see post, § 131, notes Anderson [1898] 2 Ch. 395. 50-53. 82 Kitchen Bros. Hotel Co. v. Phil- so Roth v. Adams, 185 Mass. 341, bin, 2 Neb. TJnoff. 340, 96 N. W. 487; 70 N. B. 445. Shaft V. Carey, 107 Wis. 273, 83 N. s7 See ante, at note 72. 532 COVENANTS FOR QUIET ENJOYMENT. § 79 fering with the "power" which the lessor agreed to furnish to the lessee, have, in one state, been regarded as invoMng a breach of the covenant for quiet enjoyment. And it has even been as- serted that, when the means of supplying heat to an apartment is exclusively within the landlord's control, a failure to furnish heat involves a breach of the covenant.*'^" In England the lessor is not liable as for a breach of the cove- nant because he, or one claiming under him, does acts on adjoin- ing premises, in the reasonable use thereof, which interfere with the tenant's enjoyment of the demised premises, unless such in- terference could have been foreseen as a result of such acts, and accordingly it was held that he was not liable because of a rush of water from adjoining premises, which he could not, in the exer- cise of reasonable care, have foreseen,^^ nor because his use of the adjoining premises interfered with a particular use of the leased premises by the lessee, which he, the lessor, had no reason to anticipate.*^ . It has, furthermore, in that jurisdiction, been stated that there must be a "direct interference" with the ten- ant's enjoyment,*"^ and it was held that the causing of a noise or vibration on adjoining premises, so as to interfere with the com- fortable occupation by the tenant, did not involve a breach of the covenant,^! even though legally a nuisance and actionable as such,^2 or as a derogation from the lessor's grant.^^ In a recent case in England"* an important limitation upon the right of recovery under the covenant, on account of the use made by the landlord of adjoining premises to the injury of the lessee, 87a Jackson v. Paterno, 58 Misc. the lease erected a building on ad- 208, 108 N. Y. Supp. 1073. joining property owned by him at the 88 Harrison Ainslie & Co. v. Mun- time of the lease with the result that caster [1891] 2 Q. B. 680'. Compare the chimney on the leased premises McDowell V. Hyman, 117 Cal. 67, 48 smoked, there was a breach of the Pac. 984, where it is said that the covenant for quiet enjoyment, question of negligence in doing the 91 Jenkins v. Jackson, 40 Ch. Div. acts complained of is immaterial. 71; Hudson v. Cripps [1896] 1 Ch. 89 Robinson V. Kilvert, 41 Ch. Div. 265; Jaeger v. Mansions ConsoU- 88. dated, 87 Law T. (N. S.) 690. 90 Davis V. Town Properties Inv. 92 See Grosvenor Hotel Co. t. Corp. [1903] 1 Ch. 797, per Romer Hamilton [1894] 2 Q. B. 836. & Cozens-Hardy, L. J. J., doubting, 93 See post, § 131, at note 33. for this reason, Tebb v. Cave [1900] 9* Davis v. Town Properties InV'. 1 Ch. 642, where it was held by Buck- Corp. [1903] 1 Ch. 797. ley, J., that if the lessor after making § 79 -^CTS CONSTITUTING BREACH. 533 is asserted, to the effect that, while the covenant applies to acts done on the adjoining premises by the lessor by reason of any interest which he had thereia at the time of the making of the lease, he cannot be precluded by the covenant from subsequently acquiring the adjoining premises and using them as any other owner. To hold otherwise, it is said, would give the covenant the effect of a grant by the lessor of easements over adjoining premises which he had at the time no power to grant. And even if the lessor himself could be so restricted by the covenant as re- gards the adjoining premises, it is said, one to whom he trans- ferred the reversion could not be so bound with regard to Jiis use of the adjoining premises, acquired by him from a third person, since the obligation as to such premises would be a personal one upon the lessor, and would not run with the land demised.*^ In determining whether a particular class of acts by the lessor on adjoining premises, resulting in an interference with the les- see's enjoyment, constitutes a breach of the covenant, the circum- stances at the time of the lease are to be considered, it is said, and if the lessee at that time knew of the purpose of the lessor to do such aets,^® or, it seems, had reason to know thereof,^''"^^ he cannot assert any liability under the covenant on account thereof. (3) Assertion of paramount title. A covenant for quiet en- joyment, though it does not apply to the wrongful acts of persons other than the landlord,i*"> does protect the lessee against the law- f-ul acts of such persons, unless it is so restricted or qualified as to exclude them, that is, it applies to the acts of persons hav- ing a paramount title.^"! So if the lessee is evicted by one hav- ing a prior lease,* "^ or by a purchaser at a sale under a mortgage 05 See post, § 149 b (3). Warehouse & Mfg. Co. v. Illinois 86 Robson r. Palace Chambers Co., Pneumatic Tool Co., 35 111. App. 144. 14 Times Law R. 56. See Potts v. loo See post, § 79 d (4). Smith, L. R. 6 Bq. 311. loi See Chestnut v. Tyson, 105 Ala. 97-!)9 Where the lease was renewed, 149, 16 So. 723, 53 Am. St. Rep. 101; the lessee could not, it was held, Kane v. Mink, 64 Iowa, 84, 19 N. thereafter assert a breach of the cov- W. 852; Holbrook v. Young, 108 enant for quiet enjoyment on the Mass. 83; King v. Bird, 148 Mass. ground of oppressive heat due to 572, 20 N. E. 196; Peters v. Grubb, the operation by the lessor of a 21 Pa. 455, and other cases cited in boiler on adjoining premises, when it the next succeeding notes. was operated in the same way dur- 102 See post, § 186 a (1), at note ing the original lease. Chicago 171. 534 COVENANTS POR QUIET ENJOYMENT. § 79 prior to the le.ase/"^ he has a right of action on the covenant. The mere existence of an outstanding paramount title is not, it is evident, a breach of the covenant, since this involves no dis- turbance of the tenant's enjoyment.^"* There are decisions, how- ever, to the effect that a recovery ia trespass against the tenant by the owner of the paramount title constitutes a breach.i**^ And when a lessee made a sublease in violation of his covenant, the grant of an injunction against the retention of possession by the sublessee was regarded as a breach of the sublessor's cove- nant."6 Even before an action is brought by the holder of the paramount title, the tenant may, upon the assertion of such title, yield posses- sion,!"'^ or in some way attorn,i''8 to the claimant, but in such case he has the burden of showing that the person to whom ho yielded possession or to whom he attorned actually had a par- amount title.i"^ But in case an action is brought against the ten- ant by the claimant of the paramount title, the tenant may give notice to the lessor to come in and defend the action, and if he does this, a judgment in such action is conclusive in his favor 103 Dunoklee v. Webber, 151 Mass. cision was made with reference to 408, 24 N. E. 1082; Market Co. v. a covenant in a conveyance in fee. Lutz, 4 Pbila. (Pa.) 322. loe Griesheimer v. Bothman, 105 io4DwineIl v. Brown, 65 Ga. 438, ^"- -*^PP- ^^5- 38 Am. Rep. 792; Lyncb v. Sauer, "^ King v. Bird, 148 Mass. 572, 20 16 Misc. 1, 37 N. Y. Supp. 666; f" ^- ]ll' ^^'^^^^^^ ^- Webber, 151 ' , , „„ . „. Mass. 408, 24 N. K 1082; Moftat v. Mason v. Lenderoth, 88 App. Div. ^^^^^^^ ^^ ^_ ^ g^p^^ ^ ^9 ^.^^^^ 38, 84 N. Y. Supp. 740. It has 57. Carpenter v. Parker, 3 C. B. been quite frequently so decid- (n. s.) 206. So where the subten- ed with reference to a covenant ant yielded possession in good faith in a conveyance in fee. Waldron v. to the head landlord on the lat- McCarty, 3 Johns. (N. Y.) 471; Kerr ter's assertion of a forfeiture for V. Shaw, 13 Johns. (N. Y.) 236; breach of condition in the head Howard v. Doollttle, 10 N. Y. Super, lease. Geer v. Boston Little CIrcW Ct. (3 Duer) 464; Boothby v. Hath- zjug Co., 126 Mo. App. 173, 103 S. away, 20 Me. 251; Coble v. Wellborn, w^_ 151, 13 N. C. (2 Dev. Law) 388. 10s Cane v. Mink, 64 Iowa, 84, 19 10s McAlester v. Landers, 70 Cal. N. W. 852; Holbrook v. Young, 108 79; Rolph v. Crouch, L. R. 3 Exch. 44. Mass. 83. See ante, § 78 p (2), and And see Blodgett v Jensen, 2 Neb. post, § 186 a (2). Unolf. 543, 89 N. W. 399. In the first los Stiger v. Monroe, 109 Ga. 457, of the above cited cases, reference 34 S. B. 595. See Rawle, Covenants is made to Williams v. Shaw, 4 N. for Title, § 136, and post, § 186 a C. 630 (Term 197), where such a de- (2). § 79 ACTS CONSTITUTING BREACH. 535 as to the validity of the title of the adverse claimant.ii" In the absence of such notice, the judgment in favor of the adverse claimant, though evidence of eviction, is not, it seems, evidence of eviction under title paramount as against the covenantor.!" It has been held, on a construction of the particular instrument of lease, that a covenant for quiet enjoyment of the demised premises extended to a part of a building constructed under the bed of a street under a revocable license from the city, so as to render the lessor liable upon a revocation of the license.^'' (4) Wrongful acts. Acts interfering with the lessee's enjoy- ment, done by the lessor himself or by his direction, constitute a breach of the covenant, although they are tortious in their na- ture, and even though the covenant provides against "lawful" disturbance only.i^^ As regards persons other than the lessor and persons acting directly under his authority, the covenant, although general in its terms, applies to their lawful acts only, that is, it does not protect the lessee against the acts of a third person who inter- feres with his enjoyment without any title to justify such inter- ference.ii^ The lessee has his remedy by action against the wrongdoer, and it is not regarded as in accordance with the in- tention of the parties that the lessor should be made answerable for the acts of strangers which he could neither foresee nor pre- vent.^i* This rule applies even though the covenant is in terms 110 Chestnut v. Tyson, 105 Ala. 149, ter v. Cunningham, 21 Cal. 229; 16 So. 723, 53 Am. St. Rep. 101;' Stlger v. Monroe, 109 Ga. 457, 34 S. Tyson v. Chestnut, 118 Ala. 387, 24 E. 595; Chestnut v. Tyson, 105 Ala. So. 73; Rawle, Covenants for Title, 149, 16 So. 723, 53 Am. St. Rep. 101; § 117 et seq. Gazzolo v. Chambers, 73 111. 75 ; Kim- 111 Sheets v. Joyner, 11 Ind. App. hall v. Grand Lodge of Masons, 131 205, 38 N. E. 830; Rawle, Covenants Mass. 59; Lamslng v. Van Alstyne, for Title, § 123. 2 "Wend. (N. Y.) 561, note; Gardner iiiaPabst Brew. Co. v. Thorley, v. Keteltas, 3 Hill (N. Y.) 330, 38 76 C. C. A. 85, 145 Fed. 117. Am. Dee. 637; Hyde v. Wilmore, 14 112 2 Piatt, Leases, 313; Corns v. Misc. 340, 35 N. Y. Supp. 681; Moore — , Cro. Eliz. 544; Penning v. v. Weber, 71 Pa. 429, 10 Am. Rep. Plat, Cro. Jae. 383; Crosse v. Young, 708; McNairy v. Hicks, 62 Tenn. (3 2 Show. 425; Lloyd v. Tomkles, 1 Baxt.) 378; Sedherry v. Verplanck Term R. 671; Hanley v. Banks, 6 (Tex. Civ. App.) 31 S. W. 242; Un- Okl. 79, 51 Pac. 664. derwood v. Birchard, 47 Vt. 305. 113 Rawle, Covenants for Title, I iitThe reasons for the rule as 127; Hayea v. Bickerstaft, Vaughan, stated by Vaughan, C. J., in connec- 118; Tlsdale v. Essex, Hob. 34; Play- tlon with the leading case of Hayed 536 COVENANTS FOR QUIET ENJOYMENT. § 79 against the act of the lessor "or of any other person whatso- ever. "^^^ In two cases only, and those of unusual occurrence, is the les- sor liable under his covenant for the wrongful acts of Jrthird person, these being, firstly, when the covenant is in terms against the acts of such particular person, who is named in the cove- nant,^!^ and, secondly, when it clearly appears from the express language of the covenant, that it was intended that the covenant- or should be liable for the wrongful acts of third persons,^" as when it is against all claiming or "pretending to claim. "i^* The general rule was applied when the covenant was in terms against disturbance by the lessor "or his assigns," and the lessor was regarded as not liable for a wrongful disturbance by an "assign,"ii9 and so, by the recent English cases, it appears that a covenant against the acts of the lessor or of those claiming under him applies to such acts only, by persons claiming under the lessor, as such persons have a right to do by reason of the instrument by which they claim, that is, that it does not apply to acts for which they have no authority derived from the lessor.i^o V. BickerstafE, Vaughan, 118, 122, are be no diflSculty for the lessee se- that If the rule were otherwise: (1) cretly to procure a stranger to make A man's covenant, without neces- a tortious entry that he might there- sary words to make it such, would fore charge the covenantor with an be strained to be unreasonable, and action. therefore, improbable to be so in- us Hayes v. Bickerstaff, Vaughan, tended, for it would be unreason- 118; Pabst Brew. Co. v. Thorley, 127 able a man should covenant against Fed. 439; Branger v. Manciet, 30 the wrongful acts of strangers im- Cal. 624; Goodrich v. Sanderson, 35 possible for him to prevent, or prob App. Div. 546, 55 N. Y. Supp. 881; ably to attempt preventing; (2) the Surge* v. Arighi, 19 Miss. (11 covenantor, who was innocent, Smedes & M.) 87, 49 Am. Dec. 46'; would be charged when the lessee Rawle, Covenants for Title, §§ 126, had his natural remedy against the 127. wrongdoer, and the covenantor made "« Poster v. Mapes, Cro. Eliz. 212; to defend a man from that from Nash v. Palmer, 5 Maule & S. 374; which the law defended every man, Fowle v. Welsh, 1 Barn. & C. 29. that is, from wrong; (3) a man ii^Hayes v. Bickerstafe, Vaughan, would have double remedy for the 118. same injury and also against the us Chaplain v. Southgate, 10 Mod. wrongdoer; (4) a way would be 383. opened to damage a third person no Hayes v. Bickerstaff, Vaughan, (that is the covenantor) by undis- 118. coverable practice between the les- 120 Sanderson v. Mayor of Berwick- see and a stranger, for there would upon-Tweed, 13 Q. B. Div. 547; Wil- § 79 ACTS CONSTITUTING BREACH. 537 The covenant for quiet enjoyment, implied either from the words of leasing or otherwise, like an express covenant, does not apply to the wrongful acts of strangers.^ 21 (5) Acts prior to lease. The act complained of as a breach oi the covenant must have been done after the making of the lease and not before,^^^ and a breach can evidently not take place, so as to give a right of action, till the term itself has begun.^^s (6) Exclusion from possession. Upon the question whether a covenant for quiet enjoyment may be broken by an interference with the lessee's original entry under the lease, that is with his original acquisition of possession, as well as by interference with his possession after it has been acquired, the cases are not in- ac- cord. They are considered in the next following chapter. (7) Miscellaneous classes of acts. No breach results from the making of a subsequent lease or conveyance by the lessor, when this does not result in any interference with the tenant's posses- sion.i2* And the mere failure of the lessor to erect fire escapes in compliance with an order of the city building inspector has been held not to involve a breach of the covenant.^^^ The failure of the lessor to protect the building leased from in- jury by reason of an excavation on the land of an adjoining owner, the statute imposing on such lessor, as owner, the duty of pro- tecting his building, which fell by reason of his failure so to do, has been regarded as a breach of the eovenant.i^s The act of the lessor in procuring the institution of a suit by the tenant of adjoining premises to restrain the lessee from using the Hams V. Gabriel [1906] 1 K. B. 155. 124 Ware v. Lithgow, 71 Me. 62. See Harrison, Ainsle & Co. v. Mun- in Maule v. Aslimead, 20 Pa. 482, caster [1891] 2 Q. B. 680. Newell jt y^g^ held that the lessor was V. Magee, 30 Ont. 550, is apparently iia_i,ie for breach of the covenant be- to the same effect. cause without expressly saving the i2iAbrams v. Watson, 59 Ala. ^^^^^^,^ ^.^^^^ ^^ conveyed to one 524; Pickett v. Ferguson, 45 Ark. ^ j, ^r, , t4. • „t 177, 55 Am. Rep. 545; Baugher v. ^^^ ""^^"^ ^^ ^^'^°'- " ^^ "^"^^ Wilkins 16 Md. 35, 77 Am. Dec. 279; Questionable, however, whether a Schuylkill & D. I. R. Co. v. Schmoele, lessor commits a wrong against the 57 Pa. 271; Barns v. Wilson, 116 Pa. leasee by thus conveying the land. 303, 9 Atl. 437; Wallis v. Hands ^"st, § 146 a, at notes 6, 7. [1893] 2 Ch 83. 125 Taylor v. Finnegan, 189 Mass. 122 Anderson v. Oppenheimer, 5 Q. 568, 76 N. B. 203. B, Div. 602. lasLindwall v. May, 111 App. Div. 123 Ireland v. Bircham, 2 Bing. N. 457, 97 N. Y. Supp. 821. C. 90. 538 COVENANTS FOR QUIET ENJOYMENT. | 79 premises for the purpose for which they were leased has been regarded as constituting a cause of action for damages.^ ^''' e. Persons entitled to the benefit of the covenant. The bene- fit of the covenant for quiet enjoyment passes with the leasehold to an assignee thereof.^^* f . Persons bound by the covenant. One to whom the rever- sion is transferred is bound by the covenant/ 2* but not, it has been decided in England, so far as to be restrained in his use of adjoining property not obtained from the lessor.^®" One taking under paramount title, as by sale under a mortgage prior to the lease, is obviously not in privity with the lessor and is not bound by the covenant.^^^ Nor is a remainderman bound by a covenant in a lease made by the life tenant.^ ^^ A trustee, entering into a general covenant on a lease by him, is bound thereby, though he cannot bind his cestui que trust.^^^ g. Damages recoverable for breach. The ordinary measure of damages for the breach of the covenant for quiet enjoyment, by which the lessee is deprived of the possession, is the excess of the rental value of the premises over the rent which he has agreed to pay therefor, from the time of the eviction till the end of the term,i3* or, in the case of a tenancy at will, till the lessor would 127 Williams v. Getman, 114 App. is* Tyson v. Chestnut, 118 Ala. 387, Div. 282, 99 N. Y. Supp. 977. 24 So. 73, 53 Am. St; Rep. 116; 12s Spencer's Case, 5 Coke, 16 a; Snodgrass v. Reynolds, 79 Ala. Noke V. Awder, Cro. Eliz. 426; Shel- 452, 58 Am. Rep. 601; Prochaska ton V. Codman, 57 Mass. (3 Cush.) v. Fox, 137 Mich. 519, 100 N. W. 318. 746; Hughes v. Hood, 50 Mo. 350; 129 Manchester, S. & L. R. Co. v. Riley v. Hale, 158 Mass. 240, 33 N. Anderson [1898] 2 Ch. 394; Buck v. B. 491; Duncklee v. Webber, 151 Binninger, 3 Barb. (N. Y.) 391; Mass. 408, 24 N. E. 1082 (semble) ; Coulter V. Norton, 100 Mich. 389, 59 Sheets v. Joyner, 11 Ind. App. 205, N. W. 163, 43 Am. St. Rep. 458. 38 N. E. 830 (semble); Williams v. 130 Davis V. Town Properties Inv. Burrell, 1 C. B. 402; Lock v. Furze, Corp. [1903] 1 Ch. 797. L. R. 1 C. P. 441. And see the cases 131 Sprague Nat. Bank v. Erie R. to the efeect that this is the measure Co., 22 App. Div. 526, 48 N. Y. Supp. of damages for the lessee's inability 65. to obtain possession. Post, § 85. 132 Coakley v. Chamberlain, 8 Abb. Where the lessee had agreed to Pr. (N. S.) 37, 31 N. Y. Super. Ct. make permanent Improvements (1 Sweeny) 676. which exceeded in value any possible 133 Chestnut v. Tyson, 105 Ala. 149, benefit which he could derive from 16 So. 723, 53 Am. St. Rep. 101; the lease, the court decided that Rawle, Covenants for Title, §§ 34-36. there could be no recovery. O'Con- §79 DAMAGES FOR BREACH. 539 have had the right to demand the possession.iss in Pennsylvania and Ohio, apparently, a different rule has been adopted, and there, except in so far as rent may have been paid for a part of the term during which he was deprived of possession, the recov- ery by the tenant, in the case at least of an eviction by title par- amount, is restricted to nominal damages ;i^® and the same rule is perhaps to be regarded as applicable in New York when the landlord does not participate in the eviction.i^T in any case, the tenant is entitled to recover any rent which he may have paid for a part of the term, during which he has been kept out of posses- sion.i** Damages cannot be recovered ordinarily, for the tenant's loss of profits which he might have made on the premises had he not been evicted.^*' Expenditures on the tenant's part for costs and counsel fees nor V. City of Memphis, 75 Tenn. (7 Lea) 219. 135 Ashley v. Warner, 77 Mass. (11 Gray) 43. i36McAlpin V. Woodruff, 11 Ohio St. 120, 37 Am. Dec. 414; Lanlgan V. Kille, 97 Pa. 120, 39 Am. Rep. 797. In the latter case it was held that the lessee could not recover the value of improvements placed by him on the premises by agreement with the lessor, which he was to have the right to remove, and this although the lessor had been allowed the value of the improvements in an action for mesne profits by the owner of the paramount title against him. 137 See Mack v. Patchin, 42 N. Y. 167, 1 Am. Rep. 506. There the court referred to the rule of the previous decisions in that state that as between vendor and purchaser the recovery on the covenant should be limited to the consideration paid and interest, and, as stated by Mr. Rawle (Cove- nants for Title, § 169), "considered that the rule had not been very sat- isfactory to the courts in this coun- try; that it had been relaxed or modified more or less to meet the injustice done by it to lessees in par- ticular cases, and had, in England, been repudiated, and it was held, .without drawing a distinction be- tween an eviction by the landlord himself and eviction under para- mount title, but largely resting the decision on the landlord's complic- ity in the eviction, that the measure of damages was the value of the unexpired term at the time of evic- tion, over and above the rent re- served." In this case there was a mortgage prior to the lease which the lessor knew of and might have paid. 138 Riley V. Hale, 158 Mass. 240, 33 N. B. 491; Blossom v. Knox, 3 Chand. (Wis.) 295, 3 Pin. 262. See Tyson v. Chestnut, 118 Ala. 387, 24 So. 73, 53 Am. St. Rep. 116; Lanigan v. Kille, 97 Pa. 120, 39 Am. Rep. 797. 139 Denison v. Ford, 10 Daly (N. Y.) 412; Cleveland, C. C, & St. L. R. Co. V. Mitchell, 84 111. App. 206. See authorities cited as to such re- covery in case of exclusion of lessee from possession, post, § 85, notes 36-40. 540 COVENANTS OF POWER TO DEMISE. § gg incurred in defending the title against the paramount claimant can be recovered/*" provided at least he notified the lessor to defend the suit and the latter failed so to do.^^i In case there is a breach of a covenant for quiet enjoyment not amounting to an eviction, the tenant can obviously recover only the amount of injury vrhich he has suffered thereby .1*2 Quite frequently, in the case of an eviction by the landlord, the tenant, instead of proceeding upon the covenant for quiet enjoy- ment, sues in tort for the evietion.i*^ Ordinarily, as will appear later, the same measure of damage is adopted in the two classes of action, but, apparently, in that of tort, circumstances of ag- gravation, as well as elements of pecuniary loss, may occasionally be considered which would be excluded in the action for breach of contract.^** § 80. Covenant of power to demise. Prom the word "demise" in a lease, the law implies not only a covenant for quiet enjoyment, but also a covenant of title, or, which is the same thing, a covenant that the lessor has power to demise.^*^ And it has apparently been decided ia England that the word "let" has the same effect as the word "demise" for this purpose,^*^ though in a previous decision in the same juris- diction it was asserted that such a covenant would not be implied on a lease by parol.^*'' In two states in this country it has been decided that such a covenant cannot be implied upon a written lease, without the use of the words "demise" or " grant. "^^^ "oMcAlpin T. WoodruS, 11 Ohio Ware v. Lithgow, 71 Me. 62; Crouch St. 120. v. Fowle, 9 N. H. 219, 32 Am. Dec. 1*1 Chestnut v. Tyson, 105 Ala. 350; Harms v. McCormick, 132 111. 149, 16 So. 723, 53 Am. St. Rep. 101. 104; Conrad v. Morehead, 89 N. C. See Rawie, Covenants for Title, § 34. 200. 146 Mostyn v. West Mostyn Coal & 1*2 Child V. Stenning, 11 Ch. Dlv. Iron Co., 1 C. P. Div. 145. 82. 147 Bandy v. Cartwright, 8 Exch. 143 See post, § 185 1. 913. 144 See post, § 185 i. 1*8 Baxter v. Ryers, 13 Barb. (N. 145 Holder v. Taylor, Hob. 12; Y.) 284, where it is said that "it Eraser v. Skey, 2 Chitty, 646 (sem- never was held that a mere sale or ble) ; Line v. Stephenson, 5 Bing. N. lease imported a warranty of title C. 183 (diotum); Burnett v. Lynch, in the grantor or lessor of real 5 Barn. & C. 589, 609 (dictum) ; estate, as in the case of personal Stott V. Rutherford, 92 U. S. 107; property." A similar statement is Grannis v. Clark, 8 Cow. (N. Y.) 36; made in Gano v. Vanderveer, 34 N. § 80 NATURE OF COVENANT. 541 On the other hand there are occasional suggestions to the effect that such a covenant will be implied without reference to the use of any particular words of leasing.i*^ The effect of such a covenant is that the lessee may recover for injuries by failure oH title to the whole or a part of the leased premises, CA'en though there has been no actual interruption of his enjoyment of the premises by the holder of the paramount title, he not being obliged even to enter, and so subject himself to the possibility of eviction by the rightful owner.i^o The covenant for title thus implied from words of leasing is, like the covenant for qmet enjoyment, restrained by the language of an express covenant in the lease, even though this is in terms a covenant as to possession and not title. Thus, if there is an ex- press covenant against any acts of interference with the lessee by the lessor or persons claiming under him, the lessor will not be held liable as for breach of covenant because of the existence of an outstanding paramount title.^^^ J, Law, 293, but in New Jersey, aS migjit, it seems, have been a pos- before stated, a covenant of quiet slbllity of the recovery of nominal enjoyment even is not implied in the damages. absence of the words "demise" or iso Holder v. Taylor, Hob. 12; "grant." See ante, note 7. Mostyn v. West Mostyn Coal & Iron i«See McAlester v. Landers, 70 Co., 1 C. P. Div. 145; McAlester v. Cal. 79, 11 Pac. 505; Wade v. Halli- Landers, 70 Cal. 79, 11 Pac. 505. gan, 16 111. 508; Streeter v. Streeter, isi Merrill v. Frame, 4 Taunt. 329; 43 111. 155. In Maas v. Kramer, 52 Line v. Stephenson, 5 Bing. N. C. Misc. 151, 101 N. Y. Supp. 800, the 183; Crouch v. Fowle, 9 N. H. 219, sublessee's lease extended beyond 32 Am. Dec. 350. So in Besley v. the term of the sublessor's lease- Besley, 9 Ch. IMv. 103, and Clayton hold, but the sublessor had a right v. Leech, 41 Ch. Div. 103, where It to renew his lease unless the lessor was held that an under-lessee who could get a better rent elsewhere, discovered that his lessor's term did and it was held that the sublessee, not cover the whole term of the un- by his action in obtaining a lease der-lease could not claim compen- from the head lessor, having pre- sation from his lessor. There was vented the sublessor from obtaining in each case an express covenant a renewal, could not recover dam- against disturbance by the lessor or ages. It does not appear on what by any one claiming under him. specific character of default the ac" This is not referred to in the former tion was based, whether a breach of case, but in the latter Bowen, L. J., the covenant for quiet enjoyment, says: "The implied covenant which of a covenant for title, or of some would have arisen from the demise other obligation. If a cdvenant for is excluded by the express qualified title could have been Implied, there covenant for quiet enjoyment." CHAPTER IX. THE LESSOR'S OBLIGATION TO GIVE POSSESSION. § 81. Theory of the obligation to give possession. 82. Exclusion by one having paramount title. 83. Exclusion by stranger without right. 84. Exclusion by lessor. 85. Measure of damages. § 81. Theory of the obligation to give possession. We consider elsewhere the question whether the lessee may al- lege, in defense to a claim for rent, that he was, by the action of the lessor or of some third person, prevented from obtaining pos- session of the leased premises. ^ We will here consider whether such exclusion from possession will justify an action for damages against the lessor. It seems convenient, however, first to consider the form or nature of such an action, assuming, in accordance with the great majority of decisions, that there is a right of action of some sort. There are decisions to the effect that a failure to give posses- sion to the lessee at the time named for the commencement of the term is a breach of the covenant for quiet enjoyment^ which, 1 See post, § 182 a. King v. Reynolds, 67 Ala. 229, 42 Am. aLudwell V. Newman, 6 Term R. Rep. 107 (semble) ; Berrington v. Cas- 458 (semble); Smart v. Stuart, 5 ey, 78 111. 317 ("implied contract for U. C. Q. B. (O. S.) 301; Riley v. Hale, possession and quiet enjoyment"); 158 Mass. 240, 33 N. E. 491; Steel v. Edesheimer v. Quackenbush, 68 Hun, Frick, 56 Pa. 172; Brennan v. Jacobs, 427, 23 N. Y. Supp. 75; Poposkey v. 22 Wkly. Notes Cas. (Pa.) 453, 15 Munkwitz, 68 Wis. 322, 32 N. W. 35, Atl. 685 (semble) ; Garrison v. Hut- 60 Am. Rep. 858. And see Lock v. ton, 118 App. Dlv. 455, 103 N. Y. Furze, L. R. 1 C. P. 441, where a Supp. 265; Friedlander v. Myers, 47 lessee already in possession under N. Y. St. Rep. 52, 19 N. Y. Supp. 741; a valid lease took a fresh lease in Id., 139 N. Y. 432, 34 N. E. 1055; reversion which proved to be invalid § 81 THEORY OF OBLIGATION. 543 as we have seen, is ordinarily implied from the relation of land- lord and tenant, if not expressed in the lease."" In opposition to this view, however, it has been stated that one who has a mere int&resse termini cannot sue on a covenant for quiet enjoyment.' A covenant for quiet enjoyment in a conveyance in fee is usually regarded as broken by the exclusion of the grantee from posses- sion by one having a paramount title, since the law will not com- pel the grantee to obtain possession by committing a trespass before bringing suit on the covenant.* And it would seem that, on the same theory, a lessee should be allowed to sue on such a covenant in the lease if excluded from possession by one having paramount title, or by the lessor himself. There is, however, some ■difficulty in accepting this view in any jurisdiction in which it is held that an eviction is necessary to effect a breach of the cove- nant,5 and where it is also the law that one who has not been in possession cannot be. evicted.^ Nor can the covenant for quiet en- joyment be regarded as the basis of liability when the lessee is excluded by a stranger, in possession without right,'' it being rec- ognized that the wrongful acts of strangers are not within the scope of such a covenant.® In many of the eases in which the lessee has been allowed to recover damages on account of' his exclusion from possession, the exact theory of the action does not clearly appear. In an English case denying the right of the lessee to sue on the covenant for <]uiet enjoyment in case of his exclusion from possession, his right and recovered damages on the cov- 2a See ante, § 79. «nant for quiet enjoyment contained 3 Wallis v. Hands [1893] 2 Ch. 75. in the second lease. * See the discussion of the cases In Hawkes v. Orton, 5 Adol. & B. In Rawle, Covenants for Title, § 138 367, judgment was rendered for de- et seq. See, also, cases cited in 8 -fendant because the only breach of Am. & Eng. Enc. Law (2d Ed.) 105; the covenant of quiet enjoyment al- 11 Cyclopedia Law & Proc. 1121. leged was a dispossession of plain- s See ante, § 79 d (1). tiff, while the evidence showed that 6 See Etheridge v. Osborn, 12 Tie was never admitted into posses- Wend. (N. Y.) 529; Vanderpool v. sion. But, as stated in Rawle, Cov- Smith, 4 Abb. Dec. (N. Y.) 461; ■enants for Title (5th Ed.) 180, note, Stiger v. Monroe, 109 Ga. 457, 34 S. ^'the court seem to have thought B. 595; Hawkes v. Orton, 5 Adol. & that a refusal to give possession E. 367. See 'post, § 185 f (1). might, if properly averred, be a ^ See post, § 83. "breach of the covenant for quiet en- s See ante, § 79 d (4). joyment." 544 OBLIGATION TO GIVE POSSESSION. § gl of recovery in ease of such exclusion is said to be "founded on implied covenant,"^ and so in several cases in this country it is said that there is a right of action on the implied agreement to give possession.!** Occasionally the expressions of the court are to the effect that the action is on an agreement to give posses- sion, without terming the agreement "implied" although it is not expressed otherwise than in the language of demise.ii Not infrequently the courts speak of the action for damages for ex- clusion from possession as being for "breach of the contract of lease, "12 an expression which has been criticised in a previous part of this work.i* This can mean merely thatthe action is for breach of either an express or implied covenant to give posses- sion. The most satisfactory mode, perhaps, of regarding the les- sor 's liability in damages on account of the lessee 's inability to obtain possession, would be to view it as based on a covenant to give possession, implied from the making of the lease, as the cove- nant for quiet enjoyment is implied from the relation of land- lord and tenant. AVhether we term such a covenant a covenant for quiet enjojTuent seems ordinarily immaterial, though in some jurisdictions, as before suggested,^* to do so would not harmon- sWallis V. Hands [1893] 2 Ch. 75, action of tort for the violation of citing Coe v. Clay, 5 Bing. 440, the duty arising from the relation which decided that one who lets of landlord and tenant. agrees to give possession, and is k ii Cohn v. Norton, 57 Conn. 480, 18 liable in an action for damages il Atl. 595; Clark v. Butt, 26 Ind. 236; a previous occupant retains posses- Hughes v. Hood, 50 Mo. 351. sion. 12 Townsend v. Nickerson Wharf 10 Trull V. Granger, 8 N. Y. (4 Co., 117 Mass. 501; Rogers v. McGuf- Seld.) 115; Becar v. Flues, 64 N. Y. fey, 96 Tex. 565, 74 S. W. 753; Mc- 518; Vanderpool v. Smith, 4 Abb. Farland v. Owens (Tex. Civ. App.) Dec. (N. Y.) 461; Rothman v. Koso- 64 S. W. 229; Shultz v. Brenner, 24 wer, 48 Misc. 538, 96 N. Y. Supp. 268; Misc. 523, 53 N. Y. Supp. 972; Gold- King V. Reynolds, 67 Ala. 229, 42 man v. Gainey, 67 App. Div. 330, 73 Am. Rep. 107; Herpolsheimer v. N. Y. Supp. 738; Carroll v. Peake, Christopher, 76 Neb. 352, 111 N. W. 26 V. S. (1 Pet.) 18; Robrecht v. 359; Hertzberg v. Beisenbach, 64 Marling's Adm'r, 29 W. Va. 765, 2 Tex. 262. See Berrington v. Casey, S.,E. 827; Rice v. Whitmore, 74 Cal. 78 111. 317 ("implied contract for 619, 16 Pac. 501, 5 Am. St. Rep. 479; possession and quiet enjoyment"). Engstrom v. Merriam, 25 Wash. 73, In Trull V. Granger, 8 N. Y. (4 64 Pac. 914. Seld.) 115, it is said that the lessee is See ante, § 16, note 7. has the alternative right to bring an i* See ante, at note 5. § 83 EXCLUSION BY STRANGiSIR. 545 ize with the views there asserted with reference to the latter character of covenant. § 82. Exclusion by one having paramount title. As regards the existence of a right of action, in favor of the lessee against the lessor, for exclasion from the premises, we will consider separately the cases of exclusion, (1) by one having par- amount title, (2) by a stranger having no title, and (3) by the lessor himself, acting personally or through another. That the exclusion of the lessee by one having a paramount title gives him a right of action against the lessor is asserted in two or three cases,' ^ and so the lessor has been held liable when the lessee could not obtain possession from one rightfully in posses- sion under a prior lease from the same lessor,i^ such prior lessee's title being paramount as regards that of the subsequent lessee.''^ The decisions, subsequently referred to,'^ that such possession and title in another constitute a defense to a claim for rent, would also, perhaps, tend to support the view that the lessee may recover damages for his exclusion from possession by one having par- amount title. The lessee thus kept out of possession by one hav- ing paramount title, even if not regarded as entitled to sue on the covenant for quiet enjoyment or an implied covenant to give possession, would clearly have the right to sue on the covenant of power to demise,^^ when such covenant is expressed or can h(f implied from the use of particular words of demise.^o § 83. Exclusion by stranger without right. A lessee who is kept out of possession by a third person who has no right to the possession, as when a previoiis lessee holds over 15 Ludwell V. Newman, 6 Term R. N. W. 35, 60 Am. Rep. 458. See- 458; Gardner v. Keteltas, 3 Hill (N. Duncan v. Maloney, 115 111. App. Y.) 330. See 2 Piatt, Leases, 288. 522; Goerl v. Damrauer, 27 Misc. 18 Cohn V. Norton, 57 Conn. 480, 18 555, 58 N. Y. Supp. 297. Atl. 595, 5 L. R. A. 572; Bernhard v. it See post, § 186 a, at note 171. Curtis, 75 Conn. 476, 54 Atl. 213; is See post, § 182 a (1). Steel V. Frick, 56 Pa. 172; Brennan lo Holder v. Taylor, Hob. 12 a; V. Jacobs, 22 Wftly.~Notes Cas. (Pa.) Grannis t. Clark, 8 Cow. (N. Y.) 36; 4C3, 15 Atl. 685; Friedland v. Myers, 1 Wms. Saund. 322, note a. 139 N. Y. 432, 34 N. B. 1055; Pop- 20 See ante, § 80, oskey v. Munkwltz, 68 Wis. 322, 32 L. and Ten. 35. 546 OBLIGATION TO GIVE POSSESSION. j g3 after his term, has, by some decisions, a right to recover dam- ages against his lessor,2i ^nd it has been said, as justifying such view, that ' ' he vv^ho lets agrees to give possession, and not merely to give a chance of a law suit."^^ Bj' other decisions he has no right of redress against the lessor in such case, it being for the lessee to obtain possession from the wrongdoer.^s It has been said that, even though the lessee is otherwise entitled to damages as against the lessor for exclusion by a stranger, he cannot recover if he has already recovered judgment against the intruder for possession and rents and profits.^^ It has occasionally been stated that, though the lessor is liable in damages if a stranger is in possession at the time named for the commencement of his term, and the lessee is consequently 21 Jenks V. Edwards, 11 Exch. 775; whether the lessor had done "all he Hughes V. Hood, 50 Mo. 351; King v. might and should have done" to get Reynolds, 67 Ala. 229, 42 Am. Rep. the first lessee out and put the sec- 107; Carroll v. Peake, 26 U. S. (1 end lessee in. Pet.) 18 (semble) ; Hammond v. 23 Gardner v. Keteltas, 3 Hill (JSI. Jones, 41 Ind. App. 32, 83 N. E. 257; Y.) 332, 38 Am. Dec. 637; Cozens v. Rieger v. Wells, 110 Mo. App. 166, 84 Stevenson, 5 Serg. & R. (Pa.) 421; S. W. 1136; Hertzherg v. Breisen- Pendergast v. Young, 21 N. H. 234 bach, 64 Tex. 262; Herpolsheimer v. (dictum); Gazzolo v. Chambers, 73 Christopher, 76 Neb. 352, 111 N. "W. 111. 75; Sigmund v. Howard Bank, 29 359; Rose v. Wynn, 42 Ark. 257 Md. 324; Playter v. Cunningham, (semble). 21 Cal. 229; Thomson-Houston 22 Coe V. Clay, 5 Bing., 440. Elec. Co. v. Durant Land Imp. Co., 4 The lessee can claim no damages Misc. 207, 23 N. Y. Supp. 900; Dodd for exclusion from possession by a v. Hart, 30 Misc. 459, 62 N. Y. Supp. third person when the lease is in 484; Mirsky v. Horowitz, 46 Misc. terms "for the term of one year from 257, 92 N. Y. Supp. 48; Underwood the date of occupancy, which shall v. Birchard, 47 Vt. 305. In Gazzolo commence as soon as vacated by the v. Chambers, 73 111. 75, it is said that present occupant," that is, by such the lessee alone, and not the lessor, third person. Rhodes v. Purvis, 74 had the right to bring an action Ark. 227, 85 S. W. 235. against the occupant to recover pos- In Leininger v. Clark Nat. Bank, session, and this seems to have in- 97 Minn. 364, 107 N. "W. 396, a lessee fluenced the decision. In King v. having committed an act of for- Reynolds, 67 Ala. 229, 42 Am. Rep. feiture, the lessor made a lease to 107, cited in note 21, ante, it is, on another, assuming that he could get the other hand, said that such action possession, and his liability to the cannot be brought by the lessee, second lessee on his failure to ob- See, as to this, post, §§ 215, 273 n, tain possession from the first lessee 356. was regarded as dependent on 24 Hughes v. Hood, 50 Mo. 351. § 85 MEASURE OF DAMAGES. 547 prevented from taking possession at that time, he is not liable when the lessee is prevented by a stranger from taking posses- sion at a later time,25 and this seems a reasonable limitation on the lessor's liability. He should not be required, if the lessee fails to enter at the time named in the lease, to keep the premises free from intruders until the lessee chooses to enter. There is a decision apparently to the effect that one who pur- chases the property after the time for the delivery of possession under the lease is liable in damages if the lessee is, because of a wrongful holding over by a prior lessee, prevented from obtaining possession after the purchase.^^* § 84. Exclusion by lessor. In case the lessor himself refuses to allow the lessee to take pos- session at the commencement of the termj^** or in effect does so by leasing to another before such time has arrived,^^ the lessee may, the cases are agreed, recover damages from the lessor. § 85. Measure of damages. The ordinary measure of damages for the lessee's exclusion from possession is the amount by which the rental value of the premises exceeds the rent agreed to be paid,^* with the possible 25 King V. Reynolds, 67 Ala. 229, to give the lease. Drury v. Mac- 42 Am. Rep. 107; Hertzberg v. Breis- namara, 5 El. & Bl. 612. See ante, enbach, 64 Tex. 262. § 62, note 2. 26a Hammond v. Jones, 41 Ind. 27 Trull v. Granger, 8 N. Y. (4 App. 32, 83 N. E. 257. Seld.) 115; Edesheimer v. Quacken- 26 Adair v. Bogle, 20 Iowa, 238; bush, 68 Hun, 427, 23 N. Y. Supp. 75; Trull V. Granger, 8 N. Y. (4 Seld.) Riley v. Hale, 158 Mass. 240, S3 N. 115; Garrison v. Hutton, 118 App. B. 491; Berrington v. Casey, 78 111. Div, 455, 103 N. Y. Supp. 265; Hodges 317; McFarland v. Owens (Tex. Civ. V. Fries, 34 Fla. 63, 15 So. 682; King App.) 64 S. W. 229; Clark v. Butt, V. Reynolds, 67 Ala. 229, 42 Am. Rep. 26 Ind. 236; Grace v. Haas, 20 La. 107; Berrington v. Casey, 78 IH. 317; Ann. 73; Albey v. Weingart, 71 N. J. Loufer v. Stottlemeyer, 16 Ind. App. Law, 92, 58 Atl. 87. 221, 44 N. E. 1008; Steel v. Frick, In Clark v. Butt, 26 Ind. 236, such 56 Pa. 172 (semble). action on the part of the lessor's ad- There is no right of action for ministrator was regarded as a failure to give possession when breach of a covenant that the lessee there is merely an agreement to should "have full and peaceable pos- give a lease. In such case the ac- session for said term." tion must be brought for the failure 28 Snodgrass v. Reynolds, 79 Ala. 548 OBLIGATION TO GIVE POSSESSION. j 85 result that, il there is no such excess, nominal damages only can be recovered.29 Occasionally the value of the premises for the particular use intended by the lessee has apparently been regarded as the rental value for this purpose, when the lessor knew of the intended use.^*^ Besides the ' ' general ' ' damages measured by the difference be- tween the rent and rental value, the lessee may, according to the cases generally, recover "special" damages which can be regarded as directly resulting from the lessor's breach of his agreement, express or implied, to give possession, and which are capable ot approximate ascertainment.^^ So it is said that the lessee is en- titled to recover all expenses caused him by the failure to give him possession,^^ and the expenses of breaking up his former home and preparing to move to the premises in question have been al- lowed him,33 though in one case his right to recover such expenses 452, 58 Am. Rep. 601; Andrews v. Adair v. Bogle, 20 Iowa, 238. Mlnter, 75 Ark. 289, 88 S. W. 822; In Goldman v. Gainey, 67 App. Green v. Williams, 45 111. 206; Rose Div. 330, 73 N. Y. Supp. 738, it is V. Wynn, 42 Ark. 257; Adair v. decided that such difference in rent Bogle, 20 Iowa, 238; Bernhard v. and rental value, "general dam- Curtis, 75 Conn. 476, 54 Atl. 213; ages," cannot be recovered when Newbrough v. Walker, 8 Grat. (Va.) there is only an allegation of special 16; Hughes v. Hood, 50 Mo. 351, 56 damages. Am. Dec. 127; Trull v. Granger, 8 N. so Poposkey v. Munkwitz, 68 Wis. Y. (4 Seld.) .115; Eastman v. New 322, 32 N. W. 35, 60 Am. Rep. 858; York, 152 N. Y. 468, 46 N. E. 841; Townsend v. Nickerson Wharf Co., Dodds V. Hakes, 114 N. Y. 260, 21 N. 117 Mass. 501; Devers v. May, 30 Ky. B. 398; Shultz v. Brenner, 24 Misc. Law Rep. 528, 99 S. W. 255. 522, 53 N. Y. Supp. 972 ; Goldman v. si Cohn v. Norton, 57 Conn. 480, Gainey, 67 App. Div. 330, 73 N. Y. 18 Atl. 595, 5 L. R. A. 572; Adair v. Supp. 738; Hodges v. Fries, 34 Pla. Bogle, 20 Iowa, 238; 'Hodges v. Pries, 63, 15 So. 682; Kenny v. Collier, 79 34 Fla. 63, 15 So. 682; Rose v. Wynn, Ga. 743, 8 S. E. 58; Engstrom v. Mer- 42 Ark. 257; Williams v. Oliphant, riam, 25 Wash. 73, 64 Pac. 914; 3 Ind. 271; Williamson v. Stevens, Taylor v. Cooper, 104 Mich. 72, 62 84 App. DIV. 518, 82 N. Y. Supp. N. W. 157; Poposkey v. Munk^tz, 1047; Devers v. May, 30 Ky. Law 68 Wis. 322, 32 N. W. 35, 60 Am. Rep. 528, 99 S. W. 255; Herpol- Rep. 858; Serfling v. Andrews, 106 sheimer v. Christopher, 76 Neb. 352, Wis. 78, 81 N. W. 991; Robrecht v. Ill N. W. 359. Marllng's Adm'r, 29 W. Va. 765, 16 32 Green v. Williams, 45 111. 206. Pac. 501; Lock v. Furze, L. R. 1 C. as Rose v. Wynn, 42 Ark. 257; P- 441. Driggs v. Dwight, 17 Wend. (N. Y.) ssRose v. Wynn, 42 Ark. 257; 71, 31 Am. Dec. 283; Adair v. Bogle, § 85 MEASURE OP DAMAGES. 549 is denied.** And it is said that he is entitled to recover for loss of time involved in looking for other premises or seeking other employment, where such loss is the direct result of his exclusion, and he uses diligence to reduce the amount of loss.*^ Conjectural profits which the lessee might have made from his occupation of the premises, it has been decided, cannot be con- sidered,*8 though in one case it is said that, if his business is un- avoidably suspended in consequence of his exclusion from the premises, he should receive interest on the capital invested therein.*^ And in another case it was held that such loss of pro- fits may be considered if the lessee is unable to procure another place of business, and his business has already become established in that vicinity, so that the amount of the profits lost can be esti- mated, the lessor having known of the purpose for which he took the lease, and that there was an outstanding paramount lease.'^* And evidence of the profits which the premises would have yielded has occasionally been admitted as bearing on their rental value.''* Profits from a business venture which the lessee 'was compelled to relinquish by reason of the lessor 's action in exclud- ing him from the leased premises were regarded as not recover- able, in the absence of an averment as to the lessor's knowledge of such proposed venture at the time of making the lease.*" In accordance with the general rule as to damages for avoidable 20 Iowa, 238; Kelly v. Davis, 9 Ky. 5 L. R. A. 572; Alexander v. Bish9P, Law Rep. 647; Cllley v. Hawkins, 48 59 Iowa, 572, 13 N. W. 714; Smith v. 111. 308; Yeager v. Weaver, 64 Pa. Phillips, 16 Ky. Law Rep. 615, 23 425; Griesheimer v. Botham, 105 111. S. W. 358; Robrecht v. Marling's App. 585. And see Herpolsheimer Adm'r, 29 W. Va. 765, 2 S. E. 827; V. Christopher, 76 Neb. 352, 111 N. Jarrait v. Peters, 145 Mich. 29, 13 W. 359. Det. Leg. N. 415, 108 N. W. 432; 3* Hughes V. Hood, 50 Mo. 351. Marrin v. Graver, 8 Ont. 39. 33 Adair v. Bogle, 20 Iowa, 238 ; " Green v. Williams, 45 111. 206. Herpolsheimer v. Christopher, 76 sspoposkey v. Munkwitz, 68 Wis. Neb. 352, 111 N. W. 359. But see 322, 32 N. W. 35, 60 Am. Rep. 858. Shultz V. Brenner, 24 Misc. 522, 53 And see Ward v. Smith, 11 Price, N. Y. Supp. 972, contra. 19; Rice v. Whitmore, 74 Cal. 119, 36 Hodges v. Fries, 34 Pla. 63, 21 16 Pac. 501, 5 Am. St. R«p. 479. So. 682; Green v. Williams, 45 111. as Snodgrass v. Reynolds, 79 Ala. 206; Cllley v. Hawkins, 48 111. 308; 452, 58 Am. Rep. 601; Townsend v. Williamson v. Stevens, 84 App. Div. Nickerson Wharf Co., 117 Mass. 501. 518, 82 N. Y. Supp. 1047; Cohn v. ^o Serfling v. Andrews, 106 Wis. Norton, 57 Conn. 480, 18 Atl. 595, 78, 81 N. W. 991. 550 OBLIGATION TO GIVE POSSESSION. § 85 injuries, it has been decided that a mere delay in the delivery of possession does not entitle the tenant to recover damages as for an exclusion during the whole period of the lease, when posses- sion was tendered him a short time after the time at which it should have been given him, and he refused to accept it, though its acceptance at that time would have involved no serious in- convenience or detriment to him.^i The lessee cannot, after he has reason to know that he will probably not be able to obtain possession, incur expenses by or- dering goods or hiring clerks for the purposes of his occupation of the premises, and claim the amount thereof as damages for his exclusion from possession.*^ And generally, it would seem, in accordance with the ordinary rule, the lessee cannot recover for injuries of a character which could not have been contem- plated by the lessor, as for the loss of the use of the premises for a particular purpose, the intention to use them for which was not known to the latter.*^ On this theory it was held that the lessee could not recover for losses caused by his action in pro- curing other premises for his business, which proved to be un- suitable and which he had to vacate, thereby losing part of the sums paid for rent thereof, nor for expenditures in placing fix- tures on other premises into which he subsequently moved.** It has been held in one case that the general rule, that the dif- ference between the rent reserved and the rental value of the premises is a proper measure of recovery, applies in case the rent reserved is a certain share of the crops to be raised as well as when it is payable in money.*^ But in other cases the probable loss of profits has been regarded as the measure of recovery when the rent was reserved in a share of the crops.*^ " Huntington Easy Payment Co. 45 Adair v. Bogle, 20 Iowa, 238. V. Parsons, 62 W. Va. 26, 57 S. B. *« Chew v. Lucas, 15 Ind. App. 595, 253. 43 N. E. 235; Hoy v. Grenoble, 34 42 Cohn V. Norton, 57 Conn. 480, 18 Pa. 9, 75 Am. Dec. 628; Wolf v. Atl. 595, 5 L. R. A. 572; Bernhard Studebaker, 65 Pa. 459; Brincefleld V. Curtis, 75 Conn. 476, 54 Atl. 213. v. Allen, 25 Tex. Civ. App. 258, 60 *3 Serfling v. Andrews, 106 "Wis. S. W. 1010. 78, 81 N. W. 991; Townsend v. Nick- In Rice v. Whitmore, 74 Cal. 619, erson Wharf Co., 117 Mass. 501. See 16 Pac. 501, 5 Am. St. Rep. 479, an Rothman v. Kosower, 107 N. Y. instruction that the lessee might Supp. 2. recover the value of the crop that 4*Bernhard v. Curtis, 75 Conn, might have been raised less the 476, 54 Atl. 213. cost of raising it, was approved. §85 MEASURE OP DAMAGES. 551 Occasionally the measure of damages is regarded as greater, when the lessee's exclusion from the premises is owing to the direct action of the lessor in excluding him,*^ or to the action of the latter in making the lease with knowledge that another has paramount title,*^ than when he is entirely innocent of fault, this This seems to ignore the fact that a certain portion of the crop was to go to the lessor. In Rogers v. McGuffey, 96 Tex. 565, 74 S. W. 753, the court approved an Instruction that the measure of damages 'was the reasonable market value of the "renter's" share of the crops' he would be reasonably expect- ed to have raised, less the amount he earned, or by reasonable diligence could have earned, after breach of the contract. This appears to ignore the fact that the raising of the crop would involve labor and expendit- ures. It does not seem that the lessee should recover the gross value of the crop, since he actually lost only the net value, that is, the value of the crop less the cost of raising it. See to this effect Palmer v. In- gram, 2 Gk. App. 200, 58 S. E. 362. Subsequently, in the intermediate appellate court (Rogers v. McGuftey [Tex. Civ. App.] 75 S. W. 817), it was decided that the lessee could not recover, in addition to the value of his share of the crops, the value of the labor bestowed by him in raising them, since this would in- volve the allowance of double dam- ages. In the case last cited, as well as in Brincefield v. Allen, 25 Tex. Civ. App. 258, 60 S. W. 1010, it was con- sidered that the amount of recovery should be reduced by the amount which the lessee earned, or could have earned, elsewhere. Wolf v. Studebaker, 65 Pa. 459, is contra. *7 Smart v. Allegaert, 14 Phila. (Pa.) 179; Bartram v. Hering, 18 Pa. Super. Ct. 395. In the latter case the court, in effect, says that the measure of damages for breach of a contract to lease is the same as for breach of a contract to sell, and cites authorities as to this distinc- tion. But here there was an actual lease, apparently, not a mere con- tract to make a lease as in the case there cited of McClowry v. Crog- han's Adm'r, 31 Pa. 22. isCohn V. Norton, 57 Conn. 480, 18 Atl. 595, 5 L. R. A. 572, where it is said: "Nor are we prepared to sanction the claim that in this case the defendant Is only liable for nom- inal damages. "We can hardly say that a landlord who knows, or who has the means of knowing, that his property is incumbered with an out- standing lease, which may prevent his giving possession, acts in good faith in leasing unconditionally to another.'" So in Poposkey v. Munkwitz, 68 Wis. 322, 32 N. W. 35, 60 Am. Rep. 858, it was decided that the damages recoverable were greater when the lessor knew of the existence of a paramount lease than if he had not so known; referring to Flureau v. Thornhill, 2 Wm. Bl. 1078, which was a case of breach of a contract to sell property. The Wisconsin case referred to discusses the sub- ject of damages in such case at con- siderable length, and it was decided that the lessee might recover, when 552 OBLIGATION TO GIVE POSSESSION. § gg distinction, based upon the presence of bad faith on the part of the person guilty of the breach of contract, being one recognized by some courts in the case of one contracting to sell land who fails to make title.''^ In a New York case it is said that "if the property is leased for a special purpose, which is known to the lessor and possession is refused because of a prior lease to another party, or of other fault of the lessor, the lessee may recover as damages his actual and necessary expenses incurred in preparing- for the occupation of the property in the manner contemplated by the parties, "^"^ and in that case the lessee was allowed for ex- penditures for fixtures placed on the premises under the justifi- able assumption that he would obtain possession, and in accord- ance with plans approved by the lessor, though not for loss through depreciation of the value of goods purchased by him for the purpose of stocking the premises, the purchase being one which might as well have been made after taking possession. But the lessee cannot, in spite of the lessor's bad faith, recover for expenditures which could not possibly have been anticipated, as, for instance, for money advanced to one whom the lessee pro- posed to employ on the premises.^i In one case at least, the theory that the damages could be increased by the existence of bad faith on the lessor's part is expressly repudiated .^^ kept out of possession by one hold- v. Heckert, 120 Wis. 374, 97 N. W. 952, ing under a prior lease made by the where it was held that the lessee same lessor which had not expired, could recover losses upon fixtures any sum paid as rent in advance and chattels purchased for the pur- and interest thereon, and also the pose of the business which he in- necessary expenses of moving his tended, as the lessor knew, to carry goods to the premises' with the on upon the premises, that is, the lessor's consent and of bringing difference between their cost and them back; also, if the lessor knew what he could have obtained on that the lease was taken for the their resale. purpose of carrying on a business « See 2 Sedgwick, Damages, § already established in that vicinity, 1001 et seq.; 2 Sutherland, Dam- any expense incurred in moving to ages, § 578 et seq. another suitable store and any ex- so Fi-iedland v. Myers, 139 N. Y. cess in the rent of such store over 432, 34 N. E. 1055, followed in Price that agreed to be paid for the les- v. Eisen, 31 Misc. 457, 64 N. Y. Supp. sor's store; or, instead of demanding 405. the value of his lease, he could, it si Gross v. Heckert, 120 Wis. •314, was said, recover for damages to the 97 N. W. 952. lessor's business resulting from his 52 Snodgrass v. Reynolds, 79 Ala. breach of covenant. See, also. Gross 452, 58 Am. Rep. 601. CHAPTER X. PHYSICAL CONDITIONS— REPAIRS AND IMPROVEMENTS. Landlobd's Obugations Towards Tenant. A. As to Premises Leased. § 86. Conditions existing at time of demise. a. Ordinarily no obligation. b. Contract as to existing conditions. c. Representations as to conditions. d. Concealed defects or dangers. e. Lease of furnished house or apartment. f. Contract by lessor to improve or put in repair. 87. Conditions arising after demise. a. Ordinarily no obligation. b. Conditions arising before commencement of term. c. Statutory provisions. d. Contract by landlord to repair or to pay for repairs. (1.) Evidence of the contract. (2) Oral contract. (3) Consideration to support the contract. (4) Nature of the contract. (5) Degree and mode of repair. (6) Notice of the need of repairs and diligence in repairing. (7) Making of repairs by tenant. (8) Effect of breach on liability for rent. (9) Damages for breach. (10) Injuries to tenant's person or property on premises. e. Contract by landlord to improve or put in repair. (1) General considerations. (2) Inference from contract to keep in repair. (3) Consideration to support the contract. (4) Nature of the contract. (5) Character of improvements or repairs. (6) Time of making improvements or repairs. (7) Waiver of performance. (8) Making of repairs or improvements by tenant. (9) Effect of breach on liability for rent. (10) Damages for breach. 554 PHYSICAL CONDITIONS. f. Conditions arising from the making of repairs or improvements by landlord. (1) Repairs or improvements properly made. (2) Repairs or improvements without authority. (3) Negligence o£ landlord in doing the work. (4) Negligence of independent contractor. g. Total or partial destruction of premises. h. Repairs and improvements required by public au- thorities. B. As to Adjoining Parts, Places and Premises. § 88. Parts of building not open to tenant. 89. Places open to use by tenant. a. Common approaches. b. Places other than approaches. c. No liability apart from negligence. d. Conditions existing at the time of demise. e. Obligation to light approaches. f. Ice and snow on approaches. g. Negligence of independent contractor, h. Contributory negligence of tenant. i. Improper user by tenant, j. Places not used in common. 90. Adjoining buildings and grounds. C. As to Appliances. § 91. Appliances under landlord's control. 92. Appliances not under landlord's control. 93. Liabilities apart from negligence. 94. Contributory negligence of tenant. 95. Effect on liability for rent. II. Landlord's Obligations Towards Third Persons. A. To Persons on Premises Leased. § 96. Conditions existing at time of demise. a. Ordinarily no obligation. b. Concealed defects and dangers. c. Premises of public or quasi public nature. 97. Conditions arising after demise. a. Ordinarily no obligation. b. Negligent acts. c. Contract by lessor to repair. B. To Persons in Places or Using Appliances Under the Landlord's Control. § 98. Persons in places under landlord's control. 99. Persons using appliances under landlord's control. 100. Statutory obligations. C. To Persons Owning or Using Neighboring Property or Highway. § 101. General rule of liability. 102. Theory of liability. REPitlRS AND IMPROVEMENTS. 556 § 103. Applications of rule. a. Dangerous conditions in highway. b. Fall of huildlng or part thereof. c. Fall of snow or Ice. d. Escape of water or fllth. e. Interference with water rights. f. Injuries to other tenants. 104. Llahllity of transferee of reversion. 105. Effect of renewal of lease. 106. Perlpdlc tenancy. 107. Effect of contract as to condition or repairs. 108. Conditions in connection with property not leased. III. Tenant's Obligations Towards Landloed. § 109. To refrain from waste. a. What acts constitute waste". (1) General considerations. (2) Alteration in character of land. (3) Diminution in value of land. (4) Removal of earth and minerals. (5) Destruction of trees and timber. (6) Estovers. (7) Alteration or removal of buildings or other fixtures. (8) Erection of building or other structure. (9) Improper user of building. (10) Equitable waste. (11) Effect of express stipulations. b. Remedies for waste. (1) Action for damages. (2) Injunction against waste. (3) Persons entitled to sue. (4) Persons liable. (5) Time of suit. (6) Measure of damages. (7) Forfeiture. c. Right to the proceeds of waste. 110. Injuries by third persons. 111. Injury or destruction by fire. 112. Accidental injuries. 113. Obligation to repair — Permissive waste. 114. Stipulations against alterations or erections. 115. Contract to put In repair or for specific repairs. 116. Contract to keep in repair. a. Degree and mode of repair. b. Particular causes of injury. c. . Parts of premises to be repaired. d. Obligation to rebuild on destruction. e. Conifltions precedent. f. Accrual and continuance of liability. 556 PHYSICAL CONDITIONS. § gg g. Specific enforcement of contract, h. Damages for breach. i. Rights and liabilities on assignment. § 117. Contract to make alterations or improvements. 118. Contract as to condition at end of term. a. Particular causes of injury. b. Character of condition required. c. Parts of premises within contract. d. Accrual of liability. e. Extinction of liability. f. Effect of assignment. g. Measure of damages. 119. Agricultural land. a. Model of cultivation. (1) Implied obligation. (2) Express obligation. b. Removal of hay and straw. c. Removal of manure. IV. Tenant's Obligations Towards Third Persons. § 120. To persons on the premises. 121. To persons not on the premises. I. Landlord's Obligations Towards Tenant. A. As TO Premises Leased. § 86. Conditions existing at time of demise. a. Ordinarily no obligation. It is agreed by the authorities at the present time that, as a general rule, there is no obligation on the part of the lessor to see that the premises are, at the time of the demise, in a condition of fitness for use for the purpose for which the lessee may propose to use them. A lessee, like the pur- chaser of a thing already in existence, is presumed to take only after examination. The maxim caveat emptor applies, and if he desires to protect himself in this regard he must exact of the lessor an express stipulation as to the condition of the premises.* iHart v. Windsor, 12 Mees. & W. 48 Am. St. Rep. 671; Landt v. 68; McKenzie v. Cheetham, 83 Me. Schneider, 31 Mont. 15, 77 Pac. 307; 543, 22 Atl. 469; Roth v. Adams, 185 Lucas v. Coulter, 104 Ind. 81, 3 N. Mass. 341, 70 N. B. 445; Foster v. B. 622; Flaherty v. Nieman, 125 Peyser, 63 Mass. (9 Cush.) 242, 57 Iowa, 546, 101 N. W. 280; Clifton v, Am. Dec. 43; Cowen v. Sunderland, Montague, 40 W. Va. 207, 21 S. E. 145 Mass. 363, 14 N. E. 117, 1 Am. 858, 33 L. R. A. 449, 52 Am. St. Rep. St. Rep. 469; Hazlett v. Powell, 30 872; Purcell v. English, 86 Ind. 34, Pa. 293; Blake v. Dick, 15 Mont. 236, 44 Am. Rep. 255; Franklin v. Brown, § 86 LANDLORD'S OBLIGATIONS TOWARDS TENANT. 557 "There is no reason for holding the lessor, in the absence of any agreement or fraud, liable to the tenant for the present or future condition of the premises, that would not be equally applicable to a similar liability sought to be imposed by a grantee in fee upon his grantor. ' '^ As has been remarked, ' ' there is, apart from fraud, no law against letting a tumble-down house,"* and the same may be said of premises otherwise defective. Since the tenant thus takes the premises as they are, with all their imperfections, he cannot assert a right to rescind the lease, or, which is in practical effect the same thing, defend against the claim for rent, on the ground that the premises are in unsatisfac- tory condition or are unsuitable for his purpose. So it has been held that it is no defense to an action for rent that the premises, though leased for the purpose of pasture, had scattered over them, unknown to the lessor, a poisonous substance which killed the lessee's cattle,* that a house leased (unfurnished) was so in- 118 N. y. 110, 23 N. E. 126, 6 L. See post, § 86 e. As a matter of R. A. 770, 16 Am. St. Rep. 744; Jafle fact, the lessee usually has such V. Harteau, 56 N. Y. 398, 15 Am. Rep. an opportunity. 438; Davidson v. Fischer, 11 Colo. There are a few English decisions 583, 19 Pac. 652, 7 Am. St. Rep. 267; to the effect that there is an im- Gaither v. Hascall-Richards Steam plied stipulation In every lease that Generator Co., 121 N. C. 384, 28 S. the property is and -will remain rea- E. 546; "Wilkinson v. Clauson, 29 sonably fit for the purpose for which Minn. 91, 12 N. W. 147; Towne v. it is let, as that a dwelling house Thompson, 68 N. H. 317, 44 Atl. 492, is in such repair as to be fit for 46 L. R. A. 748; Davis v. George, habitation (Salisbury v. Marshal, 4 67 N. H. 393, 39 Atl. 977; Smith v. Car. & P. 65; Cowie v. Goodwin, 9 State, 92 Md. 518, 48 Atl. 92, 51 L. Car. & P. 378), that its walls are R. A. 772; Boyer v. Commercial safe (Edwards v. Etherington, Ryan Bldg. Inv. Co., 110 Iowa, 491, 81 N. & M. 268), or that there are suffi- W. 720; Lazarus v. Parmly, 113 111. cient sewer connections (Collins v. App. 624; Martin v. Surman, 116 Barrow, 1 Moody & R. 112). But 111. App. 282; Auer v. Vahl, 219 Wis. these were overruled in Hart v. 635, 109 N. W. 529. Windsor, 12 Mees. & W. 68, as re- Occasionally the court remarks gards the lease of premises other upon the fact that in the particular than a furnished house or apart- case the lessee had an opporunity to ment, as to which see post, § 86 e. examine the premises before taking 2 per Grover, ,T., in Jafle v. Hart- the lease. See e. g., Zerega v. Will, eau, 56 N. Y. 398, 15 Am. Rep-. 438. 34 App. Div. 488, 54 N. Y. Supp. 361. s Erie, C. J., in Robbins v. Jones, But no decision seems to have 15 C. B. (N. S.) 221. turned on the absence of such an « Sutton v. Temple, 21 Mees. & W. opportunity, except perhaps in the 52. case of a lease of a furnished house. 558 PHYSICAL CONDITIONS. | gg fected with bugs as to be uninhabitable,^ that the premises lacked a proper drain,^ that they were uninhabitable owing to a noxious stench,^ that the plumbing was defective,^ or that the building fell owing to the decayed condition of its supports.^ On the same principle it was held that the lessee of a dock could not re- fuse to pay rent because the state authorities refused to allow him to render it capable of use by dredging around it.^" In one state, however, a different rule has apparently been adopted, to the effect that if premises are leased for a particular purpose, the lessor is bound to see that they are fit for that purpose, and can- not recover rent if they are not so fit.^ ^ 6 Hart V. Windsor, 12 Mees. & W. consideration," and that "the con- 68. slderation having failed" the lessee 6 Denison v. Nation, 21 U. C. Q. was justified in leaving and in re- B. 57; Wilkinson v. Clauson, 29 fusing to pay rent. In Young v. Minn. 91, 21 N. W. 147; McGlashan Collett, 63 Mich." 331, 20 N. W. 850, V. Talmadge, 37 Barb. (N. Y.) 313. it was decided that "when a land- 7 Franklin v. Brown, 118 N. Y. 110, lord rents a building, and in the 23 N. E. 126, 6 L. R. A. 770, 16 Am. lease limits its use to a certain speci- St. Rep. 744. fled purpose, and the tenant agrees 8 York V. Steward, 21 Mont. 515, to do no more than keep the same 55 Pac. 29, 43 L. R. A. 125; Daly v. in as good repair as when taken, Wise, 132 N. Y. 306, 30 N. E. 837, 16 it is evident that the landlord reco- il. R. A. 236. mends the building as suitable in 9 Davis' Adm'r v. Smith, 15 Mo. the condition it then is, if there are 467. no modifying clauses to the contrary 10 Bennett v. Schoellkopf, 12 App. contained in the lease, and it should Div. 98, 42 N. Y. Supp. 1027. be so held; otherwise there would 11 In Tyler v. Disbrow, 40 Mich, be no consideration for the tenant's 415, it was decided that It was a agreement to pay rent." In sup- defense to an action for rent that port of this statement are cited the dwelling house was unfit for Tyler v. Disbrow, 40 Mich. 415, occupation at the time of the demise, supra; Smith v. Marrable, 11 Mees. but in that case there was, in the & W. 5, which, as limited by Hart instrument of lease which was v. Windsor, 12 Mees. & W. 68, ap- signed by both parties, a recital by plies only to a lease of a furnished the lessee that she had received the house; West Side Sav. Bank v. New- premises in good condition and that ton, 76 N. Y. 616, which was a she would yield them up in like good reversal without any opinion re- condition and keep them clean and ported and applied apparently to de- healthy. This, the court said, fects arising after the demise; and showed a "distinct understanding" Salisbury v. Marshall, 4 Car. & P. that the premises were in good con- 65, which was overruled by Hart v. dltion, which became "a part of the Windsor, 12 Mees. & W. 68. § S6 LANDLORD'S OBLIGATIONS TOWARDS TENANT. 559 Another application of the general rule appears in the decis- ions, not infrequently found, to the effect that the lessee cannot assert a claim for damages against the lessor on the ground that, owing to the condition of the premises at the time of the lease, he, or a member of his family, suffered physical injury, by reason of illness or otherwisej^^" or that, as a consequence of such condition, his property on the demised premises was injured.^^ The landlord does not become liable for a defect or danger because he gratuitously attempts to remedy it and is unsuccessful in so doing.is b. Contract as to existing conditions. There may, no doubt, be an express contract of warranty on the part of the lessor in this regard, and occasionally such a contract, though not clearly stated, may be inferred from the language of the lease.^* iiaChadwick v. Woodward, 13 Cal. 586 (defective walls, resulting Abb. N. C. 441 (illness from sewer from flooding of cellar and injury to gas); Foster v. Peyser, 63 Mass. (9 goods therein); Wilcox v. Gate, 65 Cush.) 243, 57 Am. Dec. 43 (ditto); Vt. 478, 26 Atl. 1105 (explosion of Gately v. Campbell, 124 Cal. 520, 57 boiler injuring tenant's property); Pac. 567 (breaking of defective Lazarus v. Parmly, 113 111. App. floor) ; Hatch v. McCloud River 624 (defective roof, injury to Lumber Co., 150 Cal. Ill, 88 Pac. goods) ; Buckley V. Cunningham, 355 (injury from suspended wire) ; 103 Ala. 449, 15 So. 826, 49 Am. St. Borggard v. Gale, 205 111. 511, 68 N. Rep. 422 (no appliance for turning E. 1063; Shackford v. Cofiin, 95 Me. off water, injury to goods by freez- 69, 49 Atl. 57 (injury from defective ing of pipes). stairway) ; Dowling v. Nuebling, 96 is Phelan v. Fitzpatrick, 188 Mass. Fis. 350, 72 N. W. 871 (ditto); 237, 74 N. B. 326, 108 Am. St. Rep. Holton v. Waller, 95 Iowa, 545, 64 469; Rhodes v. Seidel, 139 Mich. 608, N. W. 633 (injury from opening in 102 N. W. 1025. stage of opera house leased) ; How- That the landlord. In order to ell T. Schneider, 24 App. D. C. 532 enable the tenant to walk over ice (injury from fall of water tank) ; in the cellar caused by leakage in Bennett v. Sullivan, 100 Me. 118, 60 pipes for which the landlord was Atl. 886 (injury from fall of plat- not responsible, placed a plank there- form), on, did not render him liable for 12 Dutton V. Gerrish, 63 Mass. ( 9 injuries caused by ice subsequently Cush.) 89, 55 Am. Dec. 45 (fall of forming on the plank. Whitehead building injuring lessee's goods) ; v. Comstock, 25 R. I. 423, 56 Atl. Davidson v. Fisher, 11 Colo. 583, 19 446. Pac. 652, 7 Am. St. Rep. 267 (ditto) ; 1* It was held that a lease of McKeon v. Cutter, 156 Mass. 296, 31 premises described as "the cold N. E. 389 (defective pipe causing in- storage building now in course of jury to goods) ; Loupe v. Wood, 51 construction" with a stipulation 560 PHYBICAL CONDITIONS. § 86 It has been decided in a number of cases^^ that ii: the lease is embodied in a written instrument, an oral warranty as to the condition of the premises cannot be shown. This appears to har- monize with numerous decisions excluding evidence of oral war- ranties,!® as well as with the tendency of the courts of this coun- try to exclude evidence of any oral stipulations by the lessor or lessee,!^ but it may be questioned whether, on theory, such a war- ranty might not ordinarily be regarded as admissible as being a ' ' collateral agreement. "^ * A warranty that the premises are in repair is obviously not broken because they subsequently become out of repair.^* For a breach of a covenant or other contract by the lessor as to the condition of the premises, the ordinary measure of recovery is the difference between their actual rental value and their rental value as it would have been had their condition been as stated, and the lessee cannot recover for damage not within the contem- plation of both parties at the time of the making of the covenant, that the building should be used for tatlon, or that the air therein was storing fruit and produce only, and pure and would remain so. Foster not hay, grain or feed, involved a v. Peyser, 63 Mass. (9 Gush.) 242, warranty that the building which, 57 Am. Dec. 43. not being completed, the lessee could i^ Naumberg v. Young, 44 N. J. not examine at the time of the lease, Law, 331, 43 Am. Rep. 380; Carey would be fitted for the storage and v. Kreizer, 26 Misc. 755, 57 N. Y. preservation of fruits at all times Supp. 79; Dutton v. Gerrish, 63 of the year. Hunter v. Porter, 10' Mass. (9 Gush.) 89, 55 Am. Dec. 45; Idaho, 72, 86, 77 Pac. 434. A clause Wilcox v. Gate, 65 Vt. 478, 26 Atl. in the description of the leased 1105; Stevens v. Pierce, 151 Mass. premises, "together with the fire- 207, 23 N. B. 1006; Wilkinson v. proof brick cotton warehouse built Glauson, 29 Minn. 91, 12 N. W. 147; thereon," was, in view of the circum- York v. Steward, 21 Mont. 515, 55 stances, regarded as a covenant Pac. 29, 43 L. R. A. 125. that the warehouse was fireproof. '6 See 4 Wigmore, Evidence, I Vaughan v. Matlock, 23 Ark. 9. 2434. A provision that "the owner shall n See ante, § 61. not be liable for any repairs during is it is so regarded in De Lassalle the term, the house now being in v. Guildford [1901] 2 K. B. 215; perfect order," was held to refer Hines v. Willcox, 96 Tenn. 148, 33 only to to the condition of the house S. W. 914, 34 L. R. A. 824, 54 Am. as an edifice in perfect repair, and St. Rep. 823. not to involve a covenant that the i» Lyon v. Buerman, 70 N. J. Law, house was reasonably fit for habi- 620, 57 Atl. 1009. § 86 LANDLORD'S OBLIGATIONS TOWARDS TENANT. 561 nor for damage whicli he might have avoided after learning of the actual condition of the premises.^o c. Representations as to conditions. It is generally as- sumed,2i and is, in one ov two cases,^^ clearly decided, that if the landlord makes fraudulent representations to the lessee as to the condition of the premises, in order to induce the latter to take the lease, the latter may refuse to pay rent, if, upon discovery of the fraud, he relinquishes possession of the premises. Further- - more, such fraudulent representation will afford ground for the recovery of damages by the lessee,^^ even though he retains pos- session of the premises after discovery of the fraud.** But he cannot, it would seem, by so retaining possession, increase the amount of damages recoverable.*^ So if the lessee, though he discovers that the lessor's representations as to the condition of the drains upon the premises are false, retains possession, and by so doing contracts an illness, he should not be allowed to include the losses caused by such illness in his claim for damages on ac- count of the fraud. Representations, though false, will not furnish ground for re- lief, if not fraudulent.*^ And a statement consisting merely of a 20 Kellogg V. Malick, 125 Wis. 239, ens v. Pierce, 151 Mass. 207, 23 N. 103 N. W. 1116. See post, §~87 d B. 1006; Harrington v. Douglas, 181 (9). Mass. 178, 63 N. B. 334; Clogston v. 21 Smith V. State, 92 Md. 518, 48 Martin, 182 Mass. 469, 65 N. E. 839. Atl. 92, 51 L. R. A. 772;- Jaffa v. 24 Burroughs v. Clancy, 53 111. 30; Harteau, 56 N. Y. 398, 15 Am. Rep. Baker v. Fawcett, 69 111. App. 300; 438; Daly v. Wise, 132 N. Y. 306, 30 Morey v. Pierce, 14 111. App. (14 N. E. 837, 16 L. R. A. 236; York v. Bradw.) 91; Barr v. Kimball, 43 Steward, 21 Mont. 515, 55 Pac. 29, Neb. 766, 62 N. W. 196; Pryor v. 43 L. R. A. 125. Poster, 130 N. Y. 171, 29 N. B. 123. 22 Milliken v. Thorndike, 103 Mass. 25 See Lack v. Wyckoif, 11 N. Y. 382; Wolfe v. Arrott, 109 Pa. 473, 1 St. Rep. 678. Atl. 333; Meyers v. Rosenback, 5 28 Daly v. Wise, 132 N. Y. 306, 30 Misc. 337, 25 N. Y. Supp. 521; Hins- N. E. 837, 16 L. R. A. 236; Saunders dale V. McCune, 135 Iowa, 682, 113 v. Pawley, 2 Times Law R. 590; But- N. W. 478. ler v. Goundry, 4 Times Law R. 711; 23 Lehigh Zinc & Iron Co. v. Bam- York v. Steward, 21 Mont. 515, 55 ford, 150 IT. S. 665, 37 Law. Ed. 1215; Pac. 29; Wilkinson v. Clauson, 29 Whitney v. Allaire, 1 N. Y. (1 Minn. 91, 12 N. W. 147. Unless con- Comst.) 305; Arbuckle V. Biederman, stituting a condition or warranty. 94 Ind. 168; Bauer v. Taylor, 4 Bunn r. Harrison, 3 Times Law R. Neb. Unoff. 701, 96 N. W. 268; Stev- 146. L. and Ten. 36. 562 PHYSrCAL CONDITIONS. § §6 repetition of what a former owner had said, as the intending les- see was informed, has been regarded as not fraudulent for this purpose.2^ d. Concealed defects or dangers. The rule above stated, that the lessor is under no obligation to the lessee as regards the condition of the premises at the time of the demise, is subject to an exception to the effect that, if there is some hidden defect in the premises, or danger thereon, which is known to the lessor at the time of making the lease, but which is not apparent to the intending lessee, the lessor is bound to inform the latter thereof, and failing so to do, he is liable for injuries to the tenant arising therefrom. 28 Applying such a rule, the lessor has been held liable where he failed to notify the intending lessee that the premises were infected with disease,"^ that a well was polluted,^** that of- fensive or noxious odors were emitted from a cesspool or drains on the premises,^^ or that timbers in a floor were rotten,^^ ^q^ the tenant was injured in health or in body by such conditions. If the defects or dangers are such as would be apparent to the lessee on a reasonably careful inspection, there is no obligation upon the lessor to notii'y hiiu of their existence,"'' unless, it seems, 2TLewi.s V. Clark, 86 Md. 327, 37 63 N. B. 1039; Cutter v. Hamlen, 147 Atl. 1035. Mass. 471, 18 N. E. 397, 1 L. R. A. =8 See Finney v. Steele, 148 Ala. 429; Kern v. Myll, 80 Mich. 525, 45 197, 41 So. 976, 6 L. R. A. (N. S.) N. W. 587, 8 L. R. A. 682. 977 ; Holzhauer v. Sheeny, 31 Ky. 32 Moore v. Parker, 63 Kan. 52, 64 Law Rep. 1238, 104 S. W. 1034; Pac. 975, 53 L. R. A. 778; Coke v. Rhoades v. Seidel, 139 Mich. 608. Gutkese, SO Ky. 598, 44 Am. Rep. 102 N. W. 1025; Whitehead v. Com- 499. And see Cate v. Blodgett, 70 stock & Co., 25 R. I. 423, 56 Atl. 446; N. H. 316, 48 Atl. 281; Borggard v. Whiteley v. McLaughlin, 183 Mo. Gale, 205 111. 511, 68 N. E. 1063. 160, 81 S. W. 1094, 66 L. R. A. 484; .i- Gallaglier v. Button, 73 Conn. Meyers v. Russell, 124 Mo. App. 317, 172, 46 Atl. 819; Borggard v. Gale, 101 S. W. 606. 205 111. 511, 68 N. E. 1063; Lazarus 23 Cesar v. Karutz, 60 N. Y. 229, v. Parmly, 113 111. App. 624; Shack- 19 Am. Rep. 164; Minor v. Sharon, ford v. Coffin, 95 Me. 69, 9 Atl. 57: 112 Mass. 477, 17 Am. Rep. 122. See Cowen v. Sunderland, 145 Mass. 363, Davis V. Smith, 26 R. I. 129, 58 Atl. 14 N. B. 117, 1 Am. St. Rep. 469.; 630, C6 L. R. A. 478; Finney v. Bowe v. Hunking, 135 Mass. 380, 46 Steele, 148 Ala. 197, 41 So. 976, 6 Am. Rep. 471; Cate v. Blodgett, 7a L. R. A. (N. S.) 977. -N. H. 316, 48 Atl. 281; Davidson v. 30 Maywood v. Logan, 78 Mich. 135, Fischer, 11 Colo. 583, 19 Pac. 652, 7 43 N. W. 1052, 18 Am. St. Rep. 431. Am. St. Rep. 269; "Willcox v. Hines, 31 Sunasaok v. Morey, 196 111. 569, 100 Tenn. 538, 46 S. W. 297, 41 L. § 86 LANDLORD'S OBLIGATIONS TOWARDS TENANT. 553 the lessee makes an express inquiry of him as to the condition of the premises in this particular respect.^* The theory on which liability, il to be imposed upon the lessor for injuries to the lessee from concealed defects of which the les- sor knows at the time of the lease has been stated as follows : ""When there are concealed defects, attended with danger to an occupant, and which a careful examination would not discover, known to the lessor, the latter is bound to reveal them, in order that the lessee may guard against them. While the failure to re- veal such defects may not be actual fraud or misrepresentation, it is such negligence as may lay the foundation of an action against the lessor if injury occurs." It is further said in the same case that "the principle, that one who delivers an article which he knows to be dangerous to another ignorant of its qual- ities, without notice of its nature or qualities, is liable for any injury reasonably likely to result, and which does result, has been applied to the letting of tenements. "^"^ R. A. 278, 66 Am. St. Rep. 770. See try subject to heavy falls of snow. Anderson v. Hayes, 101 Wis. 538, The danger referred to was that in- 77 N. W. 891, 70 Am. St. Rep. 930. cldent to the region and the climate, In Doyle v. Union Pac. R. Co., 147 and, in the eye of the law, as well U. S. 413, 37 Law Ed. 223, it was known to the plaintiff as to the held that where one demised a defendant." house on a mountain side, he was 34 In Sunasack v. Morey, 196 111. not negligent in failing to warn the 569, 63 N. E. 1039, it does not clearly lessee of the danger from snow appear whether the lessor's liability slides, although he knew of the dan- is based upon his obligation to re- ger and the lessee, never having veal concealed defects connected lived in such a region, did not know with the drainage, or upon his de- thereoi, since the danger was not nial of the presence of such defects, secret and was readily discoverable thus causing the lessee to refrain by the lessee. The court says: "The from making an examination. If' .plaintiff's evidence failed wholly the defects were such as would not to show that there was any special have appeared on a reasonably care- and secret danger from snowslides, ful inspection by the lessee, and the which was known only to the [les- lessor knew of them, the fact that he sor], and which could not have been actually denied their presence would ascertained by the plaintiff. It was, seem to be immaterial. See, also, indeed, alleged that 'the house was Meyers v. Russell, 124 Mo. App. 317, in a place of danger from snow- 101 S. W. 606. slides'; but this was plainly the r..-, Cowen v. Sunderland, 545 Mass. danger that impended over any 363, 14 N. E. 117, 1 Am. St. Rep. 469, house placed, as this one necessarily per Devens, .1. was, on a mountain side in a coun- 564 PHYSICAL (CONDITIONS. | gg That one who induces another to occupy land belonging to him owes to the latter a duty to inform him of facts which render such occupancy dangerous, aiM that, in failing to do so, he is guilty of negligence, would seem to admit of little question. This duty may well be assimilated, as in the language above quoted, to that of one who sells a dangerous article to one ignorant of its character, he being bound to warn the purchaser of the danger if he knows thereof j^** and it evidently also bears a close resem- blance to the obligation imposed upon the proprietor of land, as regards persons invited by him thereon, for purposes of mutual advantage, to take reasonable precautions to make the premises safe, or to warn such persons of dangerous conditions.^'' It would be singular if, Avhile one inviting another, for purposes mutually beneficial, to come upon land for a brief period, owes a duty to protect him from dangers of which the former knows or should know, or to notify him of such dangers, he were to owe no such duty to one whom he invites to come upon the land for a pro- tracted period, whether as lessee, lodger, servant or in any other capacity. No doubt the measure of the obligation varies as the purpose of the entrance or stay upon the land varies. A lessee of land may be expected to make a much closer investigation as to the safety of the premises than one going thereon as a mere cus- tomer or even a lodger, but that the same principle should govern seems hardly open to question.^* 36 See the admirable presentation clanger of which occurrence was of the doctrine referred to in Huset known to defendant and not to V. J. I. Case Threshing Mach. Co., plaintiff. The court referred to the 57 C. C. A. 237, 120 Fed. 865, 61 L. general rule that the lessor owes no R. A. 30-3, per Sanborn, J. duty to the leasee as to the condi- 37 See Pollock, Torts (6th Ed.) tion of the premises, and made no 490; 2 Shearman & Redfleld, Neg. reference to the doctrine of the les- § 704; Burdick, Torts, 456. Such sor's liability for injuries from hid- is the theory of the lessor's liability den defects of which he knows, asserted in Minor v. Sharon, 112 The second count, however, which Mass. 477, 17 Am. Rep. 122. alleged that the plaintiff was upon 38 In Land v. Fitzgerald, 68 N. J. the premises by the invitation of Law, 28, 52 Atl. 229, the court up- the defendant, not that the plaintiff held a demurrer to a count alleging was his tenant, was adjudged good, that plaintiff entered on the prem- the court saying that it "presents a ises of defendant under a lease and different question." It is submitted was injured by the fall of a negli- that both counts present the same gently constructed chimney, the question, and that the second count 86 ■LANDLORD'S OBLIGATIONS TOWARDS TENANT. 565 The view that the liability of the lessor for injuries from con- cealed defects is to be based on the theory of negligence is adopted, more or less clearly, in other cases besides that from which the above qiiotatioii is taken.^* On the other hand, it is, in some cases, regarded as arising from the fraud of the lessor in failing to notify the lessee of the dangerous or defective condition.*" In one recent case it is explicitly stated that "a lessor who, with knowledge, conceals sources of peril which are not discoverable by the lessee, is not guilty of negligence but of fraud, ' '*i and it is further said in the same case that "in cases of this character there is no place would be supported by evidence that the plaintiff went on the prem- ises under a lease. 39 See Gallagher v. Button, 73 Conn. 172, 46 Atl. 819; Minor v. Sharon, 112 Mass. 477, 17 Am. Rep. 122; Edwards v. New York & H. R. Co., 98 N. Y. 245, 50 Am. Rep. 659; Sunasack v. Morey, 196 111. 569, 63 N. B. 1039; Coke v. Gutkese, 80 Ky. 598, 44 Am. Rep. 499; Doyle v. Union Pac. R. Co., 147 U. S. 413, 33 Law. Ed. 223; Thum v. Rhodes, 12 Colo. App. 245, 55 Pac. 264; Howell v. Schneider, 24 App. D. C. 532. The opinion in Willcox v. Hines, 100 Tenn. 538, 46 S. W. 297, 14 L. R. A. 278, 66 Am. St. Rep. 770, seems generally to proceed on the theory that the landlord is liable as for negligence, but in one place it states that he is liable because his conduct amounts to fraud. *oHolzhauer v. Sheeny, 31 Ky. Law Rep. 1238, 104 S. W. 1034; Gate V. Blodgett, 70 N. H. 316, 48 Atl. 281; Steefel v. Rothschild, 179 N. Y. 273, 72 N. E. 112. The latter ca.se cites Cutter v. Hamlen, 147 Mass. 471, 18 N. E. 397, in which the opin- ion assumes, for the purpose of argument, as contended by counsel, that the action by the lessee was an action for deceit. The Massachus- setts cases ordinarily base the land- lord's liability on negligence. In Steefel v. Rothschild, 179 N. Y. 273, 72 N. E. 112, supra, it was de- cided that though the lessor did not know of the dangerous condition at the time of the lease, he was liable if he learned of it before the com- mencement of the term, for the rea- son, it seems, that such condition was of a character to constitute a public nuisance, it being said that "it was, therefore, the direct conse- quence of the defendant's continu- ous violation of law in the mainten- ance of an illegal structure from July to the commencement of the demised term that allured the plain- tiffs into entering upon the prem- ises." The opinion seems to say that while ordinarily the lessor is liable for injuries caused by con- cealed defects or dangers only when he is guilty of fraud in concealing them, he Is liable, even in the ab- sence of fraud, if such defects or dangers constitute a public nui=ance. « Shinkle, Wilson & Kreis Co. v. Birney, 68 Ohio St. 328, 67 N. E. 715. So in Lovitt v. Creekmore, 26 Ky. Law Rep. 234, 80 S. W. 1184, It was held that, in the absence of allegations of fraud the lessee's servant could not recover by reason of concealed defects in a boiler. 566 PHYSICAL CONDITIONS. j gg for the doctrines or phrases of the law of negligence." This lat- ter statement is, it is respectfully submitted, incorrect. That the lessor thus failing to inform the intending lessee of latent de- fects of an injurious character is guilty of fraud appears to coin- cide with the view ordinarily adopted in this country as to the duty of a vendor to disclose such defects,*^ a view which ap- pears, to some extent, to ignore the difficulty of proving either the vendor's fraudulent intent in such case*^ or the purchaser's reliance upon his silence as upon a false representation. That the lessor 's failure to mention the dangerous defect constitutes fraud does not, however, prevent it from also constituting negligence.*^'" What is fraud as regards the lessee, when considered as a per- son with whom the lessor is entering into contractual relations, is negligence as regards the lessee, when considered as a person whom the lessor is inducing to dwell upon or otherwise utilize the dangerous premises. Although the defect is not apparent to the lessee, and the les- sor, knowing thereof, fails to inform him, nevertheless the lessee may be guilty of contributory negligence which will prevent re- covery,** as when, though learning, after the demise, of the un- healthy condition of the premises, he remains thereon, and con- sequently contracts disease.*^ But the fact that the lessee was ■*2 See Mechem, Sales, § 869; 20 tion, and that liability in negligence Cyclopedia Law & Proc. 63. is ordinarily, if not always, inde- 4s That the lessor's intention is pendent of intention, is unquestion- immaterial upon the question of able. See Holmes, The Common negligence, see Bowe v. Hunking, Law, Sect. 3; Pollock, Torts (6th 135 Mass. 380, 46 Am. Rep. 471; Ed.) 421; Burdick, Torts, 421; 1 Cowen V. Sunderland, 145 Mass. 363, Beven, Neg. 17. 14 N. E. 117, 1 Am. St. Rep. 469. isa See Burdick, Torts, 374. In Willcox V. Hines, 100 Tenn. 538, " In Minor v. Sharon, 112 Mass. 46 S. W. 297, 41 L. R. A. 278, 66 477, 17 Am. Rep. 122, it was held Am. St. Rep. 770, the court says, to be a question for the jury whether in regard to the statement to this the lessee, who took smallpoxT from effect in the first of the above cited the infected condition of the prem- cases, that "this is evidently opposed ises, was negligent in failing to be to the great weight of authority vaccinated. which discriminates between the in- 45 See Martin v. Richards, 155 tentional and unintentional neglect Mass. 381, 29 N. E. 591; Arnold v. to perform a duty, the former being Clark, 45 N. Y. Super. Ct. (13 Jones a fraud or tort and the latter not." & S.) 252; Davis v. Smith, 26 R. I. No authority is cited for this asser- 129, 58 Atl. 630, 66 L. R. A. 478. § 86 LANDLORD'S OBLIGATIONS TOWARDS TENANT. 5g7 informed of the danger by a third person was held not to relieve the lessor from liability, if the latter assured the lessee of the non- existence of the danger, knowing this statement to be false.*"' The liability of the landlord by reason of the rule here referred to may, it has been decided, be excluded by express provisions in the instrument of lease that he shall not be liable for injury to the tenant caused by defects in the premises.*'^ It has been asserted in a series of cases in one jurisdiction, quite frequently referred to in this connection,** that the lessor is liable, not only if he has actual knowledge of the dangerous con- ditions but also "if by the exercise of reasonable care and dili- gence he could have such knowledge." These cases have been criticised as imposing upon the lessor a duty of active diligence in discovering dangers and defects which properly rests upon the lessee,*^ but though the language above quoted is susceptible of this construction, it would appear, from a perusal of the opinion in the latest of these cases, that the court means, not that the les- sor, though having no reason to suspect the existence of concealed defects or dangers, must nevertheless make an examination in the effort to discover them, but merely that if he has reason to suspect their existence he must exercise reasonable diligence to satisfy himself that they are nonexistent before leasing without mention of the matter to the lessee. That is, as is stated in the cases referred to, the lessor is liable not only if he knows, but also if he "ought to know," of these conditions. To impose any fur- ther obligation upon him would render him to a great extent an insurer against concealed defects and dangers, and such a view the court expressly repudiates. That the lessor owes no such duty to the lessee to discover defects which are not apparent to V « Snyder v. Gorden, 46 Hun, 538, A. 824, 54 Am. St. Rep. 823; Sten- 12 N. y. St. Rep. 556. But see berg v. Willcox, 96 Tenn. 163, 33 S. Daley v. Quick, 99 Cal. 179, 33 Pac. W. 917, 34 L. R. A. 615. 859. 49 See Franklin v. Tracy, 25 Ky. " Bullock-McCall-McDonnell Blec. Law Rep. 1409, 77 S. W. 113, 63 L. Co. V. Coleman, 136 Ala. 610, 33 So. R. A. 649; Shinkle, Wilson & Kreis 884. Co. V. Birney, 68 Ohio St. 328, 67 *8 Willcox V. Hines, 100 Tenn. 538, N. B. 715; Whitmore v. Orono Pulp 46 S. W. 297, 41 L. R. A. 278, 66 & Paper Co., 391 Me. 297, 39 Atl. 1032, Am. St. Rep. 770; Hines v. Willcox, 40 L. R. A. 377, 64 Am. St. Rep. 96 Tenn. 148, 33 S. W. 914, 34 L. R. 229. 568 PHYSICAL CONDITIONS. 86 ordinary observation, in order that he may warn the lessee, has been expressly decided in other jurisdictions.^" The view that the lessor 's liability as for negligence exists when he has reason to suspect the existence of the dangerous conditions as well as when he actually knows of them is asserted or indicated in other eases,^i and accords with the rule, ordinarily applied, in determining questions of negligence, when this is dependent on knowledge of physical conditions, that one has knowledge of that which he ought to know.^^ It may be doubted, indeed, whether the statements occasionally made that the lessor is not liable unless he has actual knowledge of the dangerous condi- tions^^ are to be regarded as excluding his liability when he has reason to suspect their existence, though without actual knowl- edge thereof. "Were the lessor to be regarded as liable only on proof of his actual knowledge of the defects or dangers, he might, by purposely refraining from inquiry into the presence of danger- ous conditions, though having reason to believe that such exist, entirely escape liability. An owner of property, for instance, 50 Howell v. Schneider, 24 App. D. C. 532; Bennett v. Sullivan, 100 Me. 118, 60 Atl. 886; and cases cited in next preceding note. Even accepting the rule as stated in the Tennessee cases, there is ohviously no liability if the defects could not have been discovered in the exercise of reasonable care. Whiteiey v. McLaughlin, 183 Mo. 160, 81 S. tV. 1094, 66 L. R. A. 484. 51 See Thum v. Rhodes, 12 Colo. App. 245, 55 Pac. 264; Franz v. Mul- ligan, 18 Misc. 411, 42 N. Y. Supp. 509; Kennedy v. Fay, 31 Misc. 776, 65 N. Y. Supp. 202; Howell v. Schneider, 24 App. D. C. 532; Rhoades V. Seidel, 139 Mich. 608, 102 N. W. 1025; Borman v. Sandgren, 37 III. App. 160; Metzger v. Schultz, 16 Ind. App. 454, 43 N. E. 886, 45 N. E. 619. 59 Am. St. Rep. 323 ; Albert v. State, 66 Md. 325, 7 Atl. 697, 59 Am. Rep. 159. 52 See Pollock, Torts (6th Ed.) 421; 1 Thompson, Neg. § 8. B. g. an owner of an animal causing in- jury is liable if he had reason to know its vicious propensity (Sher- man & Redfield, Neg. § 629) ; and a municipality is liable for a defect in a highway if in the exercise of due diligence it would have known of the defect (Id. § 368); and so in regard to the liability of a railroad for defects in cattle fences (Id. § 425) ; and an owner of land is bound, as regards persons coming thereon by invitation, to exercise reasonable care to discover defects (Clerk & Lindsell, Torts [3d Ed.] 454, note). And see the cases in which the landlord is charged with notice of defects in passageways. Post, note 363. 53 Smith V. Donnelly, 45 Misc. 447, 92 N. Y. Supp. 43; Davis v. Smith, 26 R. I. 129, 58 Atl. 630, 66 L. R. A. 478. And see cases cited ante, note 28. § 86 LANDLORD'S OBLIGATIONS TOWARDS TENANT. 559 knowing that there have been numerous deaths in the house from a disease of a chax'acter likely to arise from defective drainage, is not justified, it would seem, in leasing to another without first making an effort to discover whether the drainage is actually defective, or mentioning to the lessee the existence of such sus- picious circumstances, and if he does so he may well be held liable for injury to the lessee caused by such a dangerous condition. And so if the lessor has knowledge of a circumstance which may indicate structural weakness in the building on the demised premises, and fails to make any investigation, he should not be allowed to avoid liability to the lessee for injuries caused by the collapse of the building on the ground that he did not have actual knowledge of its weakness.^* This seems in effect an application of the principle, which runs through the whole question of legal notice, that one knows what he ought to know. One who knew of defects in drains on his property three years ago is said to know of them now, because a reasonable man ought to know that those defects do not cure themselves. Whether a certain person has knowledge of a certain fact is ordinarily a matter of infer- ence, and the inference of knowledge of present defects from knowledge of the past existence of such defects differs merely in degree from the inference of knowledge of such defects from the knowledge of other facts calculated to raise a probability of their existence. Even actual knowledge on the part of the lessor of the condi- tion which eventually causes the injury is not, it is said, sufficient to impose liability on him, unless he also knows, or "common experience" shows, that it is a source of danger.^s And on the 5* The lessor's knowledge of a L. R. A. 478, as to knowledge of dangerous condition existing at the death from diptheria as showing time of the lease may be inferred, knowledge that the house was in- it has been decided, from his knowl- fected. edge of such condition at a prior ss Cutter v. Kamlen, 147 Mass. time and the character of the condi- 471, 18 N. B. 397, 1 L. R. A. 429; tion as likely to continue until the Martin v. Richards, 155 Mass. 381, active application of measures for 29 N. E. 591. In Bowe v. Hunking, its removal. Martin v. Richards, 135 Mass. 380, 46 Am. Rep. 471, a 155 Mass. 381, 29 N. E. 591; Cowen step in a stairway had been "sawed v. Sunderland, 145 Mass. 363, 14 N. out" by a former tenant, as the les- B. 117. And see dictum in Davis v. sor knew, but he tested it by stand- Smith, 26 R. I. 129, 58 Atl. 630, 66 ing upon it, and he testified that he 570 PHYSICAL CONDITIONS. § 86 . same principle it has been held, a lessor is not liable because the lessee 's child contracts a disease owing to the fact that the house was infected with disease, when the lessor had, before offering to lease to him, employed skilled experts to disinfect the house.^^ It has been decided in one state that if the lessor, after the time of the demise, learns of dangerous ponditions which, though they existed at the time of the demise, were then not visible and were unknown to both the lessor and lessee, he owes a duty to the lessee to inform him of the danger, and is liable for injuries re- sulting to the lessee from such conditions, which could have been avoided by the lessee had he received such information.^T But in two states a contrary view has been taken.^^-si e. Lease of furnished house or apartment. To the general rule that a tenant cannot refuse to pay rent on the ground that the premises are not in suitable condition for the purposes for which he took the lease, the English courts have established an exception in the case of a furnished house or apartment, provided, it seems, the lease is for a short term*'^ and for immediate oecu- thought that it would bear any per- Bertie v. Flagg, 161 Mass. 504, 37 son's weight. He was held not N. E. 572; Shute v. Bills, 191 Mass. liable for injuries caused to the 433, 78 N. E. 96, 14 Am. St. Rep. lessee's wife by the "giving way" 631. of the step. "Common experience" 62 in Hart v. Windsor, 12 Mees. & woiild show, one would think, that W. 68, Baron Parke distinguishes a step "sawed out" was a source of Smith v. Marrable, 11 Mees. & W. 5, danger, even though it would bear on the ground that it was a demise a particular individual for a short of a ready furnished house "for a time. temporary residence at a watering 56 Finney v. Steele, 148 Ala. 197, place," and the other cases in 41 So. 976, 6 L. R. A. (N. S.) 977. which this asserted exception to the 5f Maywood v. Logan, 78 Mich, general rule has been applied (Wil- 135, 43 N. "W. 1052, 18 Am. St. Rep. son v. Finch-Hatton, 2 Exch. Div. 431, where the landlord was held 336; Campbell v. "Wenlock, 4 Fosl liable for injury to the tenant and & F. 716; Ingalls v. Hobbs, 156 Mass. his family from drinking water 348, 31 N. E. 286, 16 L. R. A. 51, 32 from a well on the premises in Am. St. Rep. 460; Bird v. Greville, which the landlord, after the demise, Cab. & E. 317) involved demises "for discovered a dead dog, which he the season." In Franklin v. Brown, failed to remove, and of the discov- 118 N. Y. 110, 23 N. E. 126, 6 L. R. ery of which he did not inform the A. 770, 16 Am. St. Rep. 744, the tenant. court decided that, even were they 5S-61 Holzhauer v. Sheeny, 31 Ky. prepared to adopt the doctrine of Law Rep. 1238, 104 S. W. 1034; the English cases, that doctrine § 86 LANDLORD'S OBLIGATIONS TOWARDS TENANT. 571 pancy.«3 Accordingly, it has been held that where a furnished house or apartment was not, at the time of the demise,^* reason- ably fit for occupancy owing to the presence of insects,®^ or de- fects in the drains,"" or danger of contagious illness,"' the lessee could quit the premises and refuse to pay rent. The grounds for making such a distinction between a furnished and an unfurnished house have been thus stated in an American case which adopted the English rule."* "In the absence of fraud or a covenant, the purchaser of real estate, or the hirer of it, for a term however short, takes it as it is, and determines for himself whether it will serve the purpose for which he wants it. He may, and often does, contemplate making extensive repairs upon it to adapt it to his wants ; but there are good reasons why a different rule should apply to one who hires a furnished room or a furnished house for a few days or a few weeks or months. Its fitness for immediate use of a particular kind, as indicated by its appoint- ments, is a far more important element entering into the contract than when there is a mere lease of real estate. One who lets for a short term a house provided with all furnishings and appoint- ments for immediate residence may be supposed to contract in reference to a well understood purpse of the hirer to use it as a habitation. An important part of what the hirer pays for is the opportunity to enjoy it without delay, and without the expense of preparing it for use. It is very difficult, and often impossble, for one to determine on inspection whether the house and its ap- pointments are fit for the use for which they are immediately wanted, and the doctrine caveat empior, which is ordinarily ap- plicable to a lessee of real estate, would often work injustice if would not apply to a lease for a es Smith v. Marrable, 11 Mees. & year; "W. 5; Campbell v. Wenlock, 4 Fost. S3 See Bunn v. Harrison, 3 Times & F. 716; Ingalls v. Hobbs, 156 Mass, Law R. 146; Ingalls v. Hobbs, 156 348, 31 N. E. 286, 16 L. R. A. 51, 32 Mass. 348, 31 N. E. 286, 16 L. R. A. Am. St. Rep. 460. 51, 32 Am. St. Rep. 460; Smith v. se Wilson v. Finch-Hatton, 2 Exch. Marrable, 11 Mees. & W. 5. Div. 336; Harrison v. Malet, 3 Times 84 The rule applies only to defects Law R. 58. existing at the time of the demise 67 Bird v. Greville, Cab. & E. 317. or at the commencement of the ten- os ingalls v. Hobbs, 156 Mass. 348, ancy. Maclean v. Currie, Cab. & E. 31 N. E. 286, 16 L. R. A. 51, 32 Am. 361; Sarson v. Roberts [1895] 2, Q. St. Rep. 460, per Knowlton, J. B. 395. 572 PHYSICAL CONDITIONS. § 86 applied to oases of this kind. It would be unreasonable to hold, under such circumstances, that the landlord does not impliedly agree that what he is letting is a house suitable for occupation in its condition at the time. ' ' The reasons for the distinction as thus stated are, it seems, of a twofold nature ; in the first place, that the lease is of a furnished house shows that it could not have been intended to take a lease which would involve the necessity of al- terations or repairs of the house or of the furniture; in the sec- ond place, the difficulty or impossibility of any determination by the lessee of the fitness of the house or furniture. It is to be observed, however, that the making of this exception to the rule of caveat emptor involves a departure from the prin- ciple established in the analogous case of personal chattels, since, on the sale of an ascertained and existing article, the purchaser cannot complain that it is unsatisfactory, although the seller knows that it is required by the purchaser for a particular use, and though an examination by the latter is inconvenient.®^ It is rarely, if ever, impossible for one to examine, either in person or by agent, a house of which he proposes to take a lease, and if in any case it is impossible, he should either not take the lease, or should protect himself by proper stipulations. The reasons stated for implying such an undertaking on the lease of a furnished house would frequently apply quite as well to the case of an un- furnished one, and it has even been questioned in an English case whether such an implication is not to be made when an unfurnish- ed house is leased for immediate occupancy.^" Certainly the fact that personal property of a particular character is included in a lease of land seems an inadequate reason for the establishment of a distinct rule as to the obligations of the lessor in reference to the land, or to a building thereon legally constituting a part there- of. If this peculiar doctrine were to be applied to every case of a short term lease in which immediate occupation is intended, the well established rule of the common law, that the lessee must make his objections to the condition of the premises before taking the lease, would be to a great extent nullified, and in every case of a short term lease a dissatisfied lessee would assert that he took soMechem, Sales, §§ 1312, 1314; 7o Bunn v. Harrison, 3 Times Law Benjamin, Sales (7th Am. Ed.) 689: R. 146. 15 Am. & Eng. Enc. Law (2d Ed.) 1220, 1234. § 86 LANDLORD'S OBLIGATIONS TOWARDS TENANT. 573 the premises for immediate occupation. An examination of the English decisions, in which the doctrine referred to was first as- serted, is calculated to suggest the idea that it was the result of an attempt to distinguish cases in their nature similar, rather than of a logical consideration of the principles involved.''^ The English rule in this regard has been explicitly adopted in but one state in this country ,''2 while in others it has been repudi- ated, or at least unfavorably commented on.^* In perhaps two eases a distinction has been suggested, based upon whether the defects are in the house itself or in the furniture, it being held that whatever might be the law in the latter case, in the former the tenant could not assert that the house was uninhabitable.'^* Tliis distinction is opposed to an English case.'^s i^ another case in this country it was held that the exception in case of a furnished house TiThe history of the doctrine is for a temporary residence at a wa- as follows: In Smith v. Marrable, tering place." This exception to the 11 Mees. & W. 5, which was a lease rule in the case of a furnished house of a furnished dwelling for six was approved and applied in Wilson weeks, Parke B., with the concur- v. B^nch-Hatton, 2 Bxch. Div. 336. rence of Alderson and Gurney, B. B., 72 ingalls v. Hobbs, 156 Mass. 348, held that one making a lease of a 31 N. E. 286, 16 L. R. A. 51, 32 Am. residence is regarded as undertak- St. Rep. 460. ing that it shall be in a habitable 73 Davis v. George, 67 N. H. 393, state, basing this view on Edwards 39 Atl. 979; Murray v Albertson, 50 V. Etherington, Ryan & M. 268, and N. J. Law, 167, 13 Atl. 394, 7 Am. St. Collins V. Barrow, 1 Moody & R. Rep. 787; Fisher v. Lighthall, 15 D. 112, while Chief Baron Abinger con- C. (4 Mackey) 82, 54 Am. Rep. 258; curred on the ground that "a man Franklin v. Brown, 118 N. Y. IIO, 23 who lets a ready furnished house N. E. 126, 6 L. R. A. 770, 16 Am. surely does so under the implied St. Rep. 744; Rotter v. Goerlitz. 16 condition or obligation, call it which Daly, 484, 12 N. Y. Supp. 210. In you will, that the house is in a fit Rubens v. Hill, 213 111. 523, 72 N. state to be inhabitated." In the E. 1128, the court refused to con- subsequent case of Hart v. Windsor, sider the doctrine, there being an 12 Mees. & W. 68, involving a lease express covenant to put the house of an unfurnished house, the opinion in condition which excluded any im- of the court being rendered by plied covenant. Baron Parke, the cases on which he 74 Murray v. Albertson, 50 N. J. had relied in his opinion in Smith Law, 167, 13 Atl. 394, 7 Am. St. Rep. V. Marrable were expressly over- 787; Fisher v. Lighthall, 15 D. C. ruled (ante, note 1), and he dis- (4 Mackey) 82, 54 Am. Rep. 258. tinguished Smith v. Marrable on 75 Wilson v. Pinch-Hatton, 2 Exch. the ground that it was "the case of Div. 336. . a demise of a ready furnished house 574 PHYSICAL CONDITIONS. § 87 could not apply wlien the defect or danger came from outside the premises, as, for instance, a noxious odor arising from the neigh- boring property^® f. Contract by lessor to improve or put in repair. Not in- frequently the lessor contracts, at the tin;ie of making the lease, to make specified improvements or repairs on the premises. It is immaterial as to the operation of such a contract whether it is made at the time of the lease or subsequently, and whether it is made for the purposes of obviating conditions existing at the time of the lease or subsequently arising, and we will defer the discussion of contracts of this character until we enter on the con- sideration of the landlord's obligation as to physical conditions arising after the lease.'^'^ § 87. Conditions arising after demise. a. Ordinarily no obligation. As the landlord is under no obligation to the lessee, as regards the condition of the premises, or its fitness for the lessee's purpose, at the time of the demise, so he is under no obligation to the lessee, or to the latter 's assignee, to keep the premises during the tenancy in a condition satisfac- tory to the latter. ''^■^^ Accordingly, a landlord is not bound, as a general rule, in the absence of special stipulation, to make repairs or improvements on the premises in order to render them safe or fit them for the tenant's use.'* And as a result of this principle, 70 Franklin v. Brown, 118 N. Y. Ward v. Fagin, 101 Mo. 669, 14 S. 110, 23 N. B. 126, 6 L. R. A. 770, 16 W. 722, 10 L,. R. A. 147, 20 Am. St. Am. St. Rep. 744. Rep. 650; Leavitt v. Fletcher, 92 Mass. 77 See post, § 87 d e. (10 Allen) 119; Kearines v. Cullen, 77a That the landlord has not the 183 Mass. 298, 67 N. E. 243; Krueger right to enter to make repairs in v. Ferrant, 29 Minn. 385, 13 N. W. the absence of a grant of permls- 158, 43 Am. Rep. 233; Murphy v. sion so to do, see ante, § 3 b (2). Illinois Trust & Sav. Bank, 57 Neh. 7sArden v. Pullen, 10 Mees. & W. 519, 77 N. W. 1102; "Witty v. Mat- 321; Gott v. Gandy, 2 El. & Bl. 845; thews, 52 N. Y. 512; Towne v. Viterho v. Friedlander, 120 U. S. Thompson, 68 N. H. 317, 44 Atl. 492, 707, 30 Law. Ed. 776; Gregor v. Cady, 46 L. R. A. 748; Moore v. Weber, 82 Me. 131, 19 Atl. 108, 17 Am. St. 71 Pa. 429, 10 Am. Rep. 708; Wein- Rep. 466; Petz v. Voight Brewery steine v. Harrison, 66 Tex. 546, Co., 116 Mich. 418, 74 N. W. 651, 72 1 S. W. 626; Borggard v. Gale, Am. St. Rep. 531; Biddle v. Reed, 33 205 111. 511, 8 N. E. 1063; Quinn Ind. 529; Vai v. Weld, 17 Mo. 232; v. Crowe, 88 III. App. 191; Bona- § 87 LANDLORD'S OBLIGATIONS TOWARDS TENANT. 575 the tenant cannot assert any claim against the landlord on account of injury to himself or his property owing to defects in the prem- ises arising since the demise. '^9 Likewise, if the tenant makes re- pairs or improvements of his own volition, he cannot demand that the landlord repay him the cost thereof.^o The landlord is not even liable, it has been decided, because he learns of dangerous conditions on the premises and fails to warn the tenant thereof, parte v. Thayer, 95 Md. 548, 52 neighboring landowners. Stevens v. Atl. 496; Landt v. Schneider, 31 Wadleigh, 5 Ariz. 90, 46 Pac. 70. Mont. 15, 77 Pac. 307; Richmond That the landloVd made volun- V. Lee, 123 App. Div. 279, 107 N. Y. tary repairs after an injury result- Supp. 1072; Lyon v. Buerman, 70 N. ing from defects in the premises J. Law, 620, 57 Atl. 1009; Tucker v. does not involve an admission of Bennett, 15 Okl. 187, 81 Pac. 423; liability. Kearines v. CuUen, 183 Mylander V. Beimschala, 102 Md. 689, Mass. 298, 67 N. E. 243; Schiff v. 62 Atl. 1038, 5 L. R. A. (N. S.) 316. Pottlitzer, 51 Misc. 611, 101 N. Y. '0 Lazarus v. Parmly, 113 111. App. Supp. 249. Nor does the fact that 624; Purcell v. English, 86 Ind. 34, he repaired certain portions of the 44 Am. Rep. 255; Roehrs v. Tim- premises involve liability "for in- mons, 28 Ind. App. 578, 63 N. E. juries from defects in other por- 481; Libbey v. Tolford, 48 Me. 316, tions. Galvin v. Beals, 187 Mass. 17 Am. Dec. 229; Gregor v. Cady, 82 250, 72 N. E. 969. See 1 Wigmore, Me. 131, 19 Atl. 108, 17 Am. St. Rep. Evidence, § 283. 466; Weinsteine v. Harrison, 66 Tex. soGocio v. Day, 51 Ark. 46, 9 S 546, 1 S. "W. 626; Perez v. Rabaud, 76 W. 433; Jones v. Felker, 72 Ark. 405, Tex. 191, 13 S. W. 177. 7 L. R. A. 80 S. W. 1088; Savings & Loan Soc. 620; Roberts v. Cbttey, 100 Mo. App. v. Gerichten, 64 Gal. 520; Green v. 500, 74 S. W. 886; Jaffe v. Harteau, Mann, 11 111. 613; Heintze v. Bent- 56 N. Y. 398, 15 Am. Rep. 438; Gal- ley, 34 N. J. Ect. (7 Stew.) 562; vin V. Beals, 187 Mass. 250, 72 N. E. Estep v. Bstep, 23 Ind. 114; Hop- 969; Cole v. McKey, 66 Wis. 5O0, 29 kins v. Ratliff, 115 Ind. 213, 17 N. N. W. 279, 57 Am. Rep. 293; Glenn E. 288; Powell v. Beckley, 38 Neb. V. Hill, 210 Mo. 291, 109 S. W. 27, 16 157, 56 N. W. 974; Thomas v. Oon- L. R. A. (N. S.) 699; Dowling v. rad, 24 Ky. Law Rep. 1630, 71 S. W. Nuebling, 97 Wis. 350, 72 N. W. 871; 903; Mumford v. Brown, 6 Cow. (N. Rhoades v. Seidel, 139 Mich. 608, 102 Y.) 475, 16 Am. Dec. 440; Cantrell N. W. 1025; Colebeck v. Girdlers Co., v. Fowler, 32 S. C. 589, 10 S. E. 934; 1 Q. B. Div. 234; Tredway v. Machin, Hitner v. Ege, 23 Pa. 305; Campbell 91 Law T. (N. S.) 310. v. Luck, 2 Ohio Cir. Ct. R. (N. S.) The landlord is not liable for dam- 129 ; Castagnette v. Nichia, 76 App. age to the tenant caused by a fail- Div. 371, 78 N. Y. Supp. 498; In re ure of the water supply as a result Brockway's Estate, 12 Misc. 240, 34 of the destruction by a flood of an N. Y. Supp. 42; Riggs v. Gray, 31 Tex. irrigating ditch erected and main- Civ. App. 268, 72 S. W. 101; Brown tained by such landlord and other v. Burlington, 36 Vt. 40. 576 PHYSICAL CONDITIONS. § 87 though by giving such warning he would have enabled the latter to avoid the injuries which befell him by reason of such condi- tions.*^ It has in one state been asserted that a custom that the landlord shall make repairs is valid,*^ b^j^ elsewhere the contrary has been decided.** The tenant cannot avail himself of the fact that the lease pur- ports to be made subject to the provisions of a will appointing the lessor trustee of the property, which by its terms requires him to keep the premises in repair.** Even though the premises are leased for a particular purpose, and any other use thereof is prohibited, the landlord is, it has been decided, under no obligation to keep them fit for such use.*'^ Since the landlord is not responsible for the condition of the premises during the term, he is, as such, under no obligation to protect the premises leased, or the tenant's property thereon, from injuries by reason of building operations on adjoining prem- ises,*® and the fact that he himself is the owner of the adjoining 81 Lyon V. Buerman, 70 N. J. Law, 316; Ward v. Fagin, 101 Mo. 669, 14 620, 57 Atl. 1009. See Bertie v. S. W. 738, 10 L. R. A. 147, 20 Am. Flagg, 161 Mass. 504, 37 N. E. 572. St. Rep. 650; Brown v. Curran, 53 82Shute V. Bills, 191 Mass. 433, 78 How. Pr. (N. Y.) 303; Howard v. N. B. 96, 7 L. R. A. (N. S.) 965, 114 Doolittle, 10 N. Y. Super. Ct. (3 Am. St. Rep. 631. But In this same Duer) 464; Sherwood v. Seaman, 15 case it is held that a custom that N. Y. Super Ct. (2 Bosw.) 130; the roof and gutters of the house Moore v. Weber, 71 Pa. 429, 10 Am. leased shall remain in the lessor's Rep. 708; McMulIen v. Moffitt, 68 control is bad. 111. App. 160. 83 Weinsteine v. Harrison, 66 Tex. The landlord is not obliged, for 546, 1 S. W. 626; Biddle v. Reed, 33 the protection of his tenant from in- Ind. 529. See Sawtelle t. Drew, 122 juries by excavations on adjoining Mass. 228. premises, to give a license to the 8* Wheeler v. Crawford, 86 Pa. 327. adjoining owner, as provided! by 85 Brewster v. De Fremery, 33 Cal. law, to enter on the leased premises 341; Howard v. Doolittle, 10 N. Y. to protect them from injury. Sher- Super. Ct. (3 Duer) 464; Taylor v. ""'ood v. Seaman, 15 N. Y. Super. Ct. Finnigan, 189 Mass. 568, 76 N. E. (2 Bosw.) 127. On the other hand, 203, 2 L. R. A. (N. S.) 973. . he does not by giving such license 86 Brewster v. De Fremery, 33 become liable for the acts of the Cal. 341; Serio v. Murphy, 99 Md. adjoining owner. McKenzie v. Hat- 545, 58 Atl. 435, 105 Am. St. Rep. ton, 70 Hun, 142, 24 N. Y. Supp. 88. § 87 LANDLORD'S OBLIGATIONS TOWARDS TENANT. 577 premises has been held to be immaterial, provided he used due care in conducting the operations.^'' While it is thus held, expressly, that there is, in the absence of express contract, no obligation on the landlord to make repairs, the doctrine which has been adopted in some states and is discuss- ed elsewhere,^^ that if the premises become "untenantable" the tenant may vacate them and refuse to pay further rent, has the effect of frequently imposing on the landlord the obligation of making repairs in order to avoid losing all benefits from the lease and from the lessee 's covenant to pay rent, and the same may be said of the doctrine of "constructive eviction" as developed in some jurisdictions.^® b. Conditions arising before commencement of term. While the lessor is riot responsible for the condition of the premises either at the time of the demise or during the tenancy, he is, it has been held, bound to see that their condition does not change for the worse between the time of the demise and the time named for the beginning of the tenancy, and the lessee has been regard- ed as relieved from liability on his covenants in the instrument of the lease when the building on the premises was destroyed during this iaterval.®" And so he has been held to be relieved from lia- bility when he refused to accept possession of the premises be- cause of injuries thereto caused by an outgoing tenant prior to the time for the commencement of the term.®^ On the other hand it has been decided that he is not so relieved from liability by the fact that the premises, consisting of residence property, have, be- fore the commencement of the tenancy, become so infected with disease as to make it dangerous for the lessee to bring his family thereon.®^ "Rotter V. Goerlitz, 16 Daly, 484, so See post, § 182 e (1), § 185 t 12 N. Y. Supp. 210. But the lessor (4). is obviously liable if by his opera- 9»Meeks v. Ring, 51 Hun, 329, 21 tions on the adjoining property he N. Y. St. Rep. 855, 4 N. Y. Supp. interferes with an easement exist- 117; Lightfoot v. West, 98 Ga. 546, ing in favor of the demised prem- 25 S. E. 587. In Wood v. Hiibbell, ises, such as an easement of support. 10 N. Y. (6 Seld.) 479, the court re- Snow v. Pulitzer, 142 N. Y. 263, 36 fused to consider the question. N. E. 1059, or if he authorizes the »iRosenstein v. Cohen, 98 Minn, adjoining owner to interfere there- 336, 104 N. W. 965. with. Northern Trust Co. v. Pal- 92 Edwards v. McLean, 122 N. Y. mer, 171 111. 383, 49 N. E. 553. 302, 25 N. E. 483. cs See post, § 182 n, p. L. and Ten. 37. 578 PHYSICAL CONDITIONS. | 87 If the lessor, after making the lease, and before the time for the entry of the lessee, himself injures the premises so as to render thein practically untenantable, the lessee, it has been held, may refuse to take possession and pay rent.®^ c. Statutory provisions. There are, in some states, statutory provisions changing the common-law rules as to the obligation to repair. In California it is provided that the lessor of a building con- structed for the occupation of human beings must put it in a con- dition for such occupation, and repair all dilapidations not oc- casioned by the lessee 's negligence, and that if he fails to do so on notice, the lessee may either vacate the premises or expend one month 's rent on repairs.^* And such provision has been substan- tially adopted in a few other jurisdictions."^ Buildings intended for use for business purposes are not regarded as "intended for the occupation of human beings" within the meaning of the stat- ute.8® The statute imposes upon the lessor no duty of putting in new improvements, such as a sewer to prevent the occasional hooding of the cellar, this not rendering the house unfit for occu- pation.^^ The statute gives the tenant the right to repair to the extent named, provided he first gives notice to the landlord,®* and it gives him the alternate right to vacate the premises after notice to the landlord to repair, and the latter 's failure to comply with the notice."" If the tenant remains in possession, however, the landlord's failure to repair is no defense to an action for rent,^"'' dAcept to the amount named in the statute, expended by the tenant 93 Cleves V. Wlllougliby, 7 Hill (N. See 'Willson v. Treadwell, 81 Cal. 58, Y.) 83. 22 Pac. 304. 9* Civ. Code, §§ 1941, 1942. 0'"3'1 evidence is admissible to ^^Montarm Rev. Codes, 1907, §§ ^'^'>'^ ^"^^ v^i-r^^B for which th* 5226. 5227; North DaJcota Rev. ^^^^^^^^ ^re intended to be used, .„ „,.„„ ,^„„ „ ^, this not appearing from the instru- Codea 1905, §§ 5527, 5528; South . ., t .,4. a v „».i„, ment of lease. Landt v. Schneider, Dakota Rev. Civ. Codes, §§ 4080, 3^ ^^^^ ^5^ ,^7 p^^ 30,^_ 4081. In the two latter states the gj Toj-j-eson v. "Walla 11 N. D. right of the lessee to make repairs 43^^ 92 n. \\r. 334. is not restricted to the equivalent of gs Tatum v. Thompson, 86 Cal. one month's rent. 203, 24 Pac. 1009. 96 Edmison v. Aslesen, 4 Dak. 99 Green v. Redding, 92 Cal. 548, 28 145, 27 N. W. 82; Landt v. Schneider, pac. 599. 31 Mont. 15, 77 Pac. 307; Tucker v. looMoroney v. Hellings, 110 Cal. Bennett, 15 Okl. 187, 81 Pac. 423. 219, 42 Pac. 560. § 87 'LANDLORD'S OBLIGATIONS TOWARDS TENANT. 579 on repairs. Nor is the landlord's failure to repair ground for the recovery of damages by the tenant for depreciation in the rental value of the premises, or for injuries to his property thereon,^"i or to his person,i''2 caused by the defects which the landlord has thus failed to repair. In Georgia the statute provides that "the landlord must keep the premises in repair, "i^^ The effect of the statute is to make the landlord liable for injuries to the tenant's property ,1°* or to his persoUjios or to a member of his family ,i08 caused by" defects of which the landlord had notice, or, by reasonable diligence, might have had notice,^"^ and might, in the exercise of such dili- gence, have repaired,^"* unless there is contributory negligence on the part of the person injured.ios The statute does not, how- ever, render the landlord liable for extraordinary and unforeseen occurrences.!^" Neither is the landlord under any obligation to rebuild in ease the building is totally destroy ed.^^i And if the defects are patent and known to both parties at the time of the lease, the lessee takes the premises as they are and cannot demand that the landlord remove, the defects.^^^ The statutory obligation on the landlord may be changed by express stipulation."* 101 Van Every v. Ogg, 59 Cal. 563; Hamilton, 112 Ga. 901, 38 S. B. 204. Tatum v. Thompson, 86 Cal. 203, 24 los Brunswick Grocery Co. v. Pac. 1009. Spencer, 97 Ga. 764, 25 S. E. 764; loaGately v. Campbell, 124 Cal. Gavan v. Norcross, 117 Ga. 356, 43 520, 57 Pac. 567; Callahan v. Lough- S. E. 771. ran, 102 Cal. 476, 36 Pac. 835; Sieber i»9 Miller v. Smythe, 95 Ga. 288, T. Blanc, 76 Cal. 173, 18 Pac. 260. 22 S. E. 532; Johnson v. Collins, 98 103 Ga. Code 1895, § 3123. Ga. 271, 26 S. B. 744; Veal v. Han- 104 Whittle V. Webster, 55 Ga. 180; Ion, 123 Ga. 642, 51 S. E. 579; Aikin Guthman v. Castleberry, 48 Ga. 172; v. Perry, 119 Ga. 263, 46 S. E. 93. Brunswick Grocery Co. v. Spencer, no Guthman v. Castleberry, 49 Ga. 97 Ga. 764, 25 S. B. 764. 272; Brunswick Grocery Co. v. Spen- 105 Johnson v. Collins, 98 Ga. 271, cer, 97 Ga. 764, 25 S. B. 764. 26 S. E. 744; Stack v. Harris, 111 Ga. m Mayer v. Morehead, 106 Ga. 434, 149, 36 S. B. 615. 32 S. B. 349 ; Gavan v. Norcross, 117 106 Veal v. Hanlon, 123 Ga. 642, 51 Ga. 356, 43 S. E. 771. S. B. 579. 112 Driver v. Maxwell, 56 Ga. 11; 107 stack V. Harris, 111 Ga. 149, Bosworth v. Thomas, 67 Ga. 640; 36 S. E. 615; Powers v. Cope, 93 Ga. Aikin v. Perry, 119 Ga. 263, 46 S. 248, 18 S. B. 815. But the landlord E.* 93. Compare Henley v. Brock- is not under any obligation to 100k man, 124 Ga. 1059, 53 S. E. 672. for defects unless requested by the "s Powers v. Cope, 93 Ga. 248, 18 tenant to do so. Ocean S. S. Co. v. S. E. 815. 580 PHYSICAL CONDITIONS. § 87 In Louisiana the statute provides that the lessor shall maintain the thing leased in a condition such as to serve the use for which it is hired, that he shall deliver it in good condition, .and that he shall make all repairs which may accidentally become necessary, except such as the tenant is bound to make.. It further provides that if the lessor does not make such necessary repairs, the lessee )nay himself have them made and deduct the price from the rent due. And a final provision is to the effect that the lessor guaran- tees the lessee against all the vices and defects of the thing which may prevent its being used, even in case it should appear that he knew nothing of the existence of such vices and defects at the time the lease was made, and even if they have arisen since, pro- vided they do not arise from the lessee 's fault, and that the lessor is bound to indemnify the lessee in case of loss from the vices and defects.ii^" Under these provisions the tenant must notify the landlord to repair before he can himself make the repairs and charge their cost to the landlord.^i* If there are vices and de- fects in the original construction of the premises, rendering them unfit for the tenant 's use, or, perhaps, merely a serious need of re- pairs, the tenant may have a rescission of the lease.ii^ But if the defects are such as can be repaired out of the accruing rent, it is his duty to make the repairs rather than abandon the premises.!^® If he remains in possession he cannot refuse to pay rent on account of the need of repairs. i^'^ The guaranty by the lessor against all vices and defects does not apply to the results of the defective and unlawful construction of adjacent buildings, whereby liquids percolate through the walls, in view of another statute pro- viding that the lessor does not guarantee against disturbances )iy one not claiming any right in the premises.^i* The provision n3aLa. Civ. Code 1900, arts. 2692- A stipulation that the lessee will 2695. not be responsible for damage 11* Caldwell v. Snow, 8 La. Ann. caused by leaks in the roof or by any 392 ; Favrot v. Mettler, 21 La. Ann. vice or defect in the leased property, 220. has been held not to relieve the les- 115 CafEn V. Redon, 6 La. Ann. 487. sor from liability for injuries from iisWelham v. Lingham, 28 La. defects so radical as to call for the Ann. 903. , condemnation of the premises as 11" Mulhaupt V. Enders, 38 La. dangerous to the public safety. Ann. 744. Pierce v. Hedden, 105 La. 294, 29 So. iisPargoud v. Tourne, 13 La. Ann. 734. 292. § 87 LANDLORD'S OBLIGATIONS TOWARDS TENANT. 581 for indemnity to the lessee for loss from vices and defects makes the lessor liable only for damage resulting immediately and not that resulting consequentially .^ 1 9 And the lessor 's failure to make repairs will not, it is held, sustain a claim for damages on the part of the lessee if the rent was sufficient to enable the lessee to make them himself. 120 it seems that there is a liability upon the lessor for injuries to persons other than the lessee, members of his family or his employes, for instance.^^i It has been decided that an ordinance, imposing a penalty for allowing filth to escape from the premises upon adjoining land, is to be construed as making the tenant and not the landlord liable therefor, the latter being under no obligation to repair.^^a d. Contract by landlord to repair or to pay for repairs— (1) Evidence of the contract. Quite frequently there is an ex- press contract by the lessor to make repairs duripig the tenancy, or to pay for repairs made by the tenant.^^za , The fact that the lessee contracts to make certain classes of re- pairs does not indicate an agreement by the lessor to make ?ill .other repairs,^^* nor does the lessee's covenant to make all re- pairs with certain exceptions impose on the landlord the burden of the excepted repairs. ^2* A covenant by the lessor to pay for 119 Redon v. Caffin, 11 La. Ann. Wendel, 33 Misc. 100, 67 N. Y. Supp. 695, -where it was decided that the 129; Id., 62 App. Div. 618, 71 N. Y. lessee could recover the cost of Supp. 1135. fixtures which he had placed on the 122a As to the effect of a covenant premises and which were a total to make repairs as entitling the loss to him, but not the diminution landlord to enter to make them, see of profits resulting from his en- ante, § ^3 b (3). forced removal to a new location. -123 jones v. Millsaps, 71 Miss; 10, 120 Lewis v. Pepin, 33 La. Ann. 14 So. 440, 23 L. R. A. 155; Leavitt 1417; Bianchi v. Del Valle, 117 La. v. Fletcher, 92 Mass. (10 Allen) 587, 42 So. 148; Brodtman v. Fin- 119; Witty v. Matthews, 52 N. Y. erty, 116 La. 1103, 41 So. 329. 512; Schiavone v. Callahan, 52 Misc. laiLeithman v. Vaught, 115 La. 249, 654, 102 N. Y. Supp. 538. 38 So. 982; Schoppel v. Daly, 112 La. 124 Kline v. McLain, 33 W. Va. 32, 201, 36 So. 322. 10 S. B. 11, 5 L. R. A. 400; Clifton 122 City of New York v. Corlies, v. Montague, 40 W. Va. 207, 21 S. 4 N. Y. Super. Ct. (2 Sandf.) 301. B. 858, 33 L. R. A. 449, 52 Am. St. As to a construction of the New Rep. 872. See Weigall v. Waters, York law requiring garbage recep- 6 Term R. 488; Turner v. Townsend, tacles to be furnished in tenement 42 Neb. 376, 60 N. W. 587. houses, see Department of Health v. 582 PHYSICAL CONDITIONS. § 87 buildings and improvements made by the lessee is not a covenant to pay for repairs made by liim,i25 and, conversely, a covenant to pay for repairs does not require him to pay for improvements made by the tenant.^ 2® A provision that the lessee shall return the premises in as good order as when received, "ordinary w^ar and tear and natural decay excepted," imposes no obligation on the lessor to repair defects arising from the excepted causes.^27 A warranty as to the safe condition of the premises at the time of the lease does not involve any obligation to keep them in that eondition.128 That the lessor makes repairs, voluntarily or at the lessee's re- quest, does not tend to show any agreement by him to make re- pairs.129 Even the fact that the lease shows an intention on the part of the lessor to make repairs does not impose on him an obli- gation to make them,i3o and so the fact that he is expressly given a right to enter to make them is immaterial in this regard.^'i That land was demised with water privileges from a mill pond for turning a certain factory wheel was held not to bind the lessor to keep the mill dam in repair so that it would turn the wheeL^'* A provision of the lease that the premises shall be used by the lessee for a particular purpose only does not involve a covenant by the lessor to make or keep them fit for such use.^^^ 125 Lametti V. Anderson, 6 Cow. (N. App. 191; Moore v. Weber, 71 Pa. Y.) 302. 429, 10 Am. Rep. 708; McKeon v. A covenant by the lessor to Cutter, 156 Mass. 296, 31 N. E. 389; furnish the materials necessary lor Galvin v. Seals, 187 Mass. 250, 72 N. repairs does not involve a covenant B. 969; Phelan v. Fitzpatrick, 188 on his part to make repairs. Brett Mass. 237, 74 N. E. 326; Schanda v. V. Berger, 4 Cal. App. 12, 87 Pac. Sulzberger, 7 App. Div. 221, 40 N. Y. 222. ' Supp. 116; "Watson v. Almirall, 61 126 Cornell v. Vanartsdalen, 4 Pa. App. Div. 429, 70 N. Y. Supp. 662. 364. isoMoyer v. Mitchell, 53 Md. 171. 127 Thomas v. Conrad, 24 Ky. Law isi Gulliver v. Fowler, 64 Conn. Rep. 1630, 71 S. W. 903; Turner v. 556, 30 Atl. 852. See Boston v. Townsend, 42 Neb. 376, 60 N. "W. Gray, 144 Mass. 53, 10 N. E. 509. 587; Olmstead v. Tennessee Fixture And compare Ahem v. Steele, 115 N. & Showcase Co., 1 Tenn. Ch. App. Y. 203, 22 N. E. 193, 4 L. R. A. 528, 653. 12 Am. St. Rep. 778. i28 0usley v. Hampe, 128 Iowa, 132 Morse v. Maddox, 17 Mo. 569. 675, 105 N. W. 122. laa Howard v. Doolittle, 10 N. 1=9 Gridley V. City of Bloomington, Y. Super. Ct. (3 Duer) 464; John- 68 111. 47; Quinn v. Crowe, 88 111. son v. Oppenheim, 34 N. Y. Super. § 87 LANDLORD'S OBLIGATIONS TOWARDS TENANT. 533 (2) Oral contract. An oral contract to repair, at the time of or previous to a written demise, has, in a number of cases, been held to be inadmissible by force of the "parol evidence" rule.i34 Occasionally, however, such an agreement has been regarded as "collateral" to the matters comprised in the written instrument and so valid and effective.i^s (3) Consideration to support the contract. A contract by the lessor to make repairs must, at least when not under seal, be sup- ported by a valid consideration. Consequently, a parol promise to repair, made after the lease, if not based on a new considera- tion, cannot be enforced,^^'' and this is the case when it is made merely in consideration of the lessee's agreement to do what he is already bound to do, as to keep on paying rent or not to aban- don the premises.i*''^ But it has been held that when the landlord had notified the tenant to quit for nonpayment ofj rent, the ten- et. (2 Jones & S.) 416; Lyons v. ise Fowler Cycle Works v. Fraser, Galvln, 43 Misc. 659, 88 N. Y. Supp. 110 111. App. 126; Purcell v. English, 252; Brewster v. De Fremery, 33 86 Ind. 34, 44 Am. Rep. 255; Alt- Cal. 341; Taylor t. Finnigan, 189 sheler v. Conrad, 26 Ky. Law Rep. Mass. 568, 76 N. B. 203, 2 L. R. A. 538, 82 S. W. 257; Libbey v. Tolforde, (N. S.) 973. 48 Me. 316, 17 Am. Dec. 229; 134 Gulliver v. Fowler, 64 Conn. Rhoades v. Seidel, 139 Mich. 608, 556, 30 Atl. 852; Smith v. Smull, 69 102 N. W. 1025; Gill v. Mlddleton, App. Div. 452, 74 N. Y. Supp. 1061; 105 Mass. 477, 7 Am. Rep. 548; Hall V. Beston, 26 App. Div. 105, 49 Bronner v. Walter, 15 App. Div. N. Y. Supp. 811; Kabus v. Frost, 50 295, 44 N. Y. Supp. 583; Gottsberger N. Y. Super. Ct. (18 Jones & S.) 72; v. Radway, 2 Hilt (N. Y.) 342; Howard v. Thomas, 12 Ohio St. 201; Schift v. Pottlitzer, 51 Misc. 611, 101 York V. Steward, 21 Mont. 515, 55 N. Y. Suup. 249; Whitehead v. Com- Pac. 29, 43 L. R. A. 125; Roehrs v. stock & Co., 25 R. I. 423, 56 Atl. 446; Timmons, 28 Ind. App. 578, 63 N. E. Dowling v. Nuebling, 97 Wis. 350, 481; Peticolas v. Thomas, 9 Tex. Civ. 72 N. W. 871; Perez v. Rabaiid, 76 App. 442, 29 S. W. 166. Tex. 191, 13 S. W. 177, 7 L. R. A. 135 Vandegrift v. Abbott, 75 Ala. 620; Clyne v. Helmes, 61 N. J. L.aw, 487; Clenighan v. McFarland, 16 Daly, 358, 39 Atl. 767; Taylor v, Lehman, 402, 11 N. Y. Supp. 719 (contract to 4 Ind. App. 585, 46 N. E. 84, 47 N. put in repair) ; Johnson v. Blair, E. 230. 126 Pa. 426, 17 Atl. 663; De Lassalle 137 proctor v. Keith, 51 Ky. (12 V. Guildford [1901] 2 K. B. 215 B. Mon.) 252; Eblin v. Miller, 78 Ky. (warranty as to state of repair); 371; Hall v. Beston, 26 App. Div. Mann v. Nunn, 43 Law J. C. P. 241 105. 49 N. Y. Supp. 811, afd. 165 N. (contract to make improvement). Y. 632, 59 N. E. 1123. See ante, § 61. 584 PHYSICAL CONDITIONS. § g7 ancy was to be regarded as terminated, so that a subsequent prom- is,e by him to make repairs if the tenant would remain at the same rent was supported by a sufficient consideration.!^^ And it has been decided that if the condition of the premises was such that the tenant had a right to leave them, his promise to stay was a sufficient consideration to support an agreement to repair.^^^ A contract by the lessor to pay for repairs if the tenant will make them is based on a sufficient consideration, so far as the re- pairs are not such as the tenant is bound to make,!'" but it is plainly otherwise if the tenant is already under the legal obliga- tion of making them. (4) Nature of the contract. A contract by the landlord to repair is in its nature continuing, and is not discharged by a sin- gle breach, though this is followed by a judgment for damages, and the tenant may recover for each of several successive breaches.! *i A covenant by the lessor to repair runs with the land and ac- cordingly may be enforced by the assignee of the leasehold inter- est, or against the transferee of the reversion, in case of breach during the existence of such transferee's interest.^*- (5) Degree and mode of repair. A covenant to repair is not, it is said, to be extended by construction.i*^ On the other hand, it issConkling v. Turtle, 52 Mich. (2 Comst.) 96, 49 Am. Dec. 369; 630, 18 N. "W. 391. Kingdon v. Nottle, 1 Maule & S. 365. i3» Rauth V. Davenport, 60 Hun, 142 Allen v. Culver, 3 Denio (N. 70, 14 N. Y. Supp. 69; Bhlnger v. Y.) 284; Day v. Swackhamer, 2 Hilt. Bahl, 208 Pa. 250, 57 Atl. 572; and (N. Y.) 4; Gerzebek v. Lord, 33 N. J. cases cited post, note 212. Law, 240. 140 Hughes V. Van Stone, 24 Mo. "s Clark v. Babcock, 23 Mich. App. 637; Benson v. Bolles, 8 "Wend. 164; "Witty v. Matthews, 52 N. Y. 512. (N. Y.) 175; Oettinger v. Levy, 4 A covenant by the lessor of a E. D. Smith (N. Y.) 288; Caulk v. gristmill to keep it in repair has Everly, 6 "Whart. (Pa.) 303. See been held not to embrace duties Peticolas v. Thomas, 9 Tex. Civ. ordinarily performed by the miller, App. 442, 29 S. W. 166. So where such as dressing the stones, regu- the landlord agreed to pay part of lating the machinery and clearing the cost if the tenant would pay the the race of ordinary deposits. Mid- remainder. "Woodworth v. Thomp- dlekauff v. Smith, 1 Md. 329. son, 44 Neb. 311, 62 N. "W. 450. A covenant to repair if at any "1 Block V. Ebner, 54 Ind. 544; time "during" the term a part of Coffin V. Talman, 8 N. Y. (4 Seld.) the premises was condemned for 465. See Beach v. Crain, 2 N. Y. public use was held not to apply } 87 LANDLORD'S OBLIGATIONS TOWARDS TENANT. 535 has been said that such a covenant is to be construed in favor of the covenantee.!** A covenant to "keep in repair" obliges the landlord to keep the premises in at least as good condition as at the date of the covenant/*^ and a covenant to keep them "in good repair" re- quires him to put them in good repair if out of repair at the time, the degree of repair required to be determined vrith refer- ence to the nature, age and location of the premises.^** Neither a covenant to keep in repair nor one to keep in good repair obliges the lessor, it has been considered, actually to renew portions of the structure which have become worn out.^*'^ A covenant to make all inside and outside repairs has been said to bind the lessor for ordinary, and not for extraordinary, re- pairs.i** A covenant to repair the ' ' external parts of the demised premises" includes all parts forming the enclosure, even though adjoining another building, a party wall, for instance.!*^ In perhaps two states, a covenant to repair, where the lease was for a particular purpose, has been held to require the lessor to put the building in such repair as the purpose requireSj^^" and in another a covenant to "do all necessary repairs" was held to re- when the condemnation was before defective condition at the time of the beginning of the term though the covenant. See post, § 87 e (2). after the making of the lease. "8 Saner v. Bilton, 7 Ch. Div. 815 ; Prager v. Bancroft, 112 Mass. 76. Miller v. McCardell, 19 R. I. 304, 33 It was held to be no defense to a Atl. 445, 30 L. R. A. 682; Payne v. suit for breach of a covenant to Haine, 16 Mees. & W. 541. repair a sawmill that there was a "f Torrens v. Walker [1906] 2 Ch. breach by the lessee of a covenant 166, applying the decisions in this not to run the mill faster than a regard as to a covenant by the rate named, the excessive speed not lessee. Post, § 116 a. having caused the defects calling A covenant to "keep in good nec- for repairs. The covenants were essary repair," in the lease of a regarded as independent. Hinckley hotel, was held to require the land- T. Beckwith, 23 Wis. 328. lord to put the flues in such condi- 1** Miller v. McCardell, 19 R. I- tion that there could be flres in the 304, 33 Atl. 445, 30 L. R. A. 682. See rooms, this being otherwise impos- ante, § 58 a, at note 112. sible owing to the escape of smoke. "5 Stultz V. Locke, 47 Md. 562. Meyers v. Burns, 35 N. Y. 269. In Lovejoy v. Townsend, 25 Tex. "s May v. Gillis, 169 N. Y. 330, CiT. App. 385, 61 S. W. 331, a cove- 62 N. E. 385. nant to repair the roof and keep it 1*9 Green v. Eales, 2 Q. B. 2.'?5. in repair was held to require the isopiper v. Fletcher, 115 Iowa, landlord to put it in repair if in a 263, 88 N. W. 380; Riley v. Pettis 586 PHYSICAL CONDITIONS. § 87 quire the floors to be put in as good condition at least as they were in when originally eonstructed-i^i (6) Notice of the need of repairs and diligence in repairing. A covenant by the landlord to repair is ordinarily regarded as one to repair on notice of the need of repairs, and consequently no liability can be asserted thereon against him till after such no- tice,i^2 and also the lapse of a reasonable time within which to make the repairs.^^^ And for this purpose the fact that the land- lord has the means of knowing of the need of repairs is not, it has been held, equivalent to actual notice thereof. i^* If the lease pro- vides that notice in writing shall be given, there can be no recov- ery for nonrepair in the absence of such notice.^^^ But the re- quirement of a notice of the need of repairs has been regarded as not applying when the repairs were rendered necesssary by the County, 96 Mo. 318, 9 S. W. 906. 580; Young v. Burhans, 80 Wis. 438, In the latter case the covenant was 50 N. W. 343. See Whittle v. Web- "to keep in good repair." The only ster, 55 Ga. 180; Brunswick Groc- authority cited is Meyers v. Burns, ery Co. v. Spencer, 97 Ga. 764, 25 S. 35 N. Y. 269, supra. E. 764, where it was so d,eci(Jed as loi Ward V. Kelsey, 38 N. Y. 80, 97 regards the statutory requirement Am. Dec. 773. of that state that the landlord make 152 Makin v. Watkinson, L. R. 6 repairs. See, also, cases cited post, Exch. 25; Manchester Bonded Ware- note 157. house Co. V. Carr, 5 C. P; Div. 507; is^Hugall v. McLeail, 53 Law T. Hugall V. McLean, 53 Law T. (N. (N. S.) 94. But in Hayden v. Brad- S.) 94; Torrens v. Walker [1906] 2 ley, 72 Mass. (6 Gray) 425, 66 Am. Ch. 166; Sieber v. Blanc, 76 Cal. 173, Dec. 421, it was held that the ten- 18 Pac. 260; Cummings v. Ayer, 188 ant need not give notice of the need Mass. 292, 74 N. E. 336; Galvin v. of repairs in order to put the land- Beals, 187 Mass. 250, 72 N. E. 969; lord in default, the latter having Hutchinson v. Cummings, 156 Mass. the opportunity to himself learn the 329, 31 N. E. 127; Marley v. Wheel- need of repairs by reason of a clause Wright, 172 Mass. 530, 52 N. E. of the lease giving him the right to 1066; Cooke v. England, 27 Md. 14, enter "to view and make improve- 92 Am. Dec. 618; Thomas v. Kings- ments." The instruction approved land, 108 N. Y. 616, 14 N. E. 807; in Flynn v. Trask, 93 Mass. (11 Al- Gerzebeck v. Lord, 33 N. J. Law, len) 550, seems also to be adverse 240; Frank v. Conradi, 50 N. J. Law, to the rule stated in the later Mass- 23, 11 Atl. 480. achusetts eases (supra, note 152) 163 Green v. Eales, 2 Q. B. 225 ; as to the necessity of actual notice. Forrest v. Buchanan, 203 Pa. 454, iss Sternberg v. Burke, 84 N. Y. 53 Atl. 267; Thompson v. Clemens, Supp. 862. 96 Md. 196, 53 Atl. 919, 60 L. R. A. § « LANDLORD'S OBLIGATIONS TOWARDS TENANT. 587 negligent acts of the lessor himself and he knew of the need of repairs.^^^ (7) Making of repairs by tenant. Upon the failure of the landlord to make repairs as agreed, after notice from the tenant to do so, the tenant may himself make them, and recover, in an action on the agreement, the amount of the expenditures, so far as reasonable.! 5T But the tenant is not bound to make the re- pairs himself, at least if the repairs required are of considerable extent,!^^ and he may, it has been held, remain in possession with- out repairs and recover damages for the breach of agreement upon the principles hereafter stated.^^^ Occasionally the statement is made that the tenant should himself make the repairs, merely, it seems, for the purpose of excluding a particular class of liability, 156 Pratt, Hurst & Co. v. Tailer, 186 N. Y. 417, 79 N. B. 328, afg. 114 App. Div. 574, 100 N. Y. Supp. 16. 157 Green v. Bales, 2 Q. B. 225; Thompson v. Clemens, 96 Md. 196, 53 Atl. 919, 60 L. R. A. 580; Myers V. Burns, 35 Ky. 269; Parr v. Village of Greenbush, 112 N. Y. 246, 19 N; E. 684; Markham v. David Stev- enson Brevf. Co., Ill App. Div. 178, 97 N. Y. Supp. 604; Ross v. Stock- well, 19 Ind. App. 86, 49 N. B. 50; Wright V. Lattln, 38 111. 293; Lewis & Co. V. Chisholm, 68 Ga. 40. See Cantrell v. Fowler, 32 S. C. 589, 10 S. E. 934. IBS Bien & Co. v. Hess (C. C. A.) 102 Fed. 436; Cook v. Soule, 56 N. Y. 423; Woodward v. Jones, 15 Misc. 1, 72 N. Y. St. Rep. 4, 36 N. Y. Supp. 775; Thomson-Houston Blec. Co. v. Durant Land Imp. Co., 144 N. Y. 34, 39 N. E. 7; Biggs v. McCurley, 76 Md. 409, 25 Atl. 466; Bostwick v. Losey, 67 Mich. 554, 35 N. W. 246; McCoy T. Oldham, 1 Ind. App. 372, 27 N. E. 647, 50 Am. St. Rep. 208. It has been said that if the re- pairs needed are trifling in charac- ter, the tenant should make them. MiddlekaufC v. Smith, 1 Md. 329; Thompson v. Clemens, 96 Md. 196, 53 Atl. 919, 60 L. R. A. 580. Even though it would otherwise be the duty of the tenant to make the repairs himself and then claim reimbursement from the landlord, so that, failing to do so, he could not recover damages resulting from failure to repair, this is not the case if the landlord, on being notified of the need of specific repairs, prom- ises to make them and thus keeps the lessee from making them. Keyes v. Western Vermont Slate Co., 34 Vt. 81; Parker v. Meadows, 86 Tenn. 181, 6 S. W. 49. 159 Thomson-Houston Elec. Co. v. Durant Land Imp. Co., 144 N. Y. 34, 39 N. E. 7; Myers v. Burns, 35 N. Y. 269; Spencer v. Hamilton, 113 N. C. 49, 18 S. B. 167, 37 Am. St. Rep. 611; Lewis & Co. V. Chisholm, 68 Ga. 40; Buck V. Rodgers, 39 Ind. 222; Cul- ver V. Hill, 68 Ala. 66, 44 Am. Rep. 134; Vandergrift v. Abbott, 75 Ala. 487; Bostwick v. Losey, 67 Mich. 554, 35 N. W. 246; Hexter v. Knox, 63 N. Y. 561. . 588 PHYSICAL CONDITIONS. § 87 that for injuries to the tenant 's person or property resulting from defective conditions.^®" (8) Effect of breach on liability for rent. It has been decided in numerous cases that the covenant by the lease to pay rent and that by the lessor to repair are independent. Consequently, the failure to repair as agreed is, in most jurisdictions, no defense to an action for rent."^®^- ^^^ And, conversely, the failure to pay rent is no defense to an action for breach of a covenant to repair. i^s There are, however, in a number of jurisdictions, decisions to the effect that breach of the lessor's covenant to make repairs may, under particular circumstances, justify the tenant in relinquishing possession and refusing to pay rent. These decisions will be more speciiically referred to in another place. i®* In the case of an agreement by the landlord to pay for repairs by the tenant, though it is provided that the rent shall be applied on the cost of such repairs, the tenant may recover the amount thereof without asserting it in reduction of the rent.i®^ And he may assert it in reduction of the rent, as agreed, without secur- ing the landlord's approval of the repairs, or effecting any set- tlement with him as to their value^^*"!'"' 160 See Hendry v. Sctuier, 126 Ind. N. W. 343. And see cases cited 19, 25 N. E. 830, 9 L. R. A. 798; Hed- post, note 236. ekin v. Gillespie, 33 Ind. App. 650, 72 "^ Drago v. Mead, 30 App. Div. N. E. 143; Schick v. Fleischhauer, 258, 51 N.- Y. Supp. 360; Lelck v. 26 App. Div. 210, 49 N. Y. Supp. 962; Tritz, 94 Iowa, 322, 62 N. W. 855. ' Spero V. Levy, 43 Misc. 24. 86 N. Y. "^ ^^^ ^°^'' § ^^^ r (2). „„„ „ i6f' McKenna v. Rowlett, 68 Ala. Supp. 869; Cantrell v. Fowler, 32 S, ,gg ^^^^^ .^ ^^^ p^^^.^^^ ^^^^ C. 589, 10 S. E. 934. See post, § 87 the cost of repairs should be de- ^ (J^O). ducted from the rent to accrue un- 161, 162 Central Appalachian Co. v. der a new lease, such cost could be Buchanan (C. C. A.) 73 Fed. 1006; recovered, it was held, if the new Lewis & Co. V. Chisholm, 68 Ga. 40; lease was never made. Smith v. Lunn V. Gage, 37 111. 19, 87 Am. Rep. Farnworth, 6 Hun (N. Y.) 598. 233; Bryan v. Fisher, 3 Blackf. As to the right of the tenant to (Ind.) 316; Long V. Gieriet, 57 Minn, recover for Jabor and materials 278, 59 N. W. 194; Meredith Me- furnished under such an agreement, chanic Ass'n v. American Twist when the landlord re-entered before Drill Co., 67 N. H. 450, 39 Atl. 330; the repairs were finished or paid for, Smith V. Wiley, 60 Tenn. (1 Baxt.) see Smith v. Newcastle, 48 N. Y. 70. 418; Kelsey v. "Ward, 38 N. Y. 83; lee.iTo Dallman v. King, 4 Bing. Prescott v. Otterstatter, 85 Pa. 534; N. C. 105; Fillebrown v. Hoar, 124 Young V. Burhans, 80 Wis. 438, 50 Mass. 580-. § 87 LANDLORD'S OBLIGATIONS TOWARDS TENANT. 539 (9) Damages for breach. The measure of damages for breach of the landlord's covenant to repair is ordinarily stated to be the difference between the rental value of the premises v?ith the re- pairs and without the repairs.^'^i In one or two cases it is said that the measure is the difference between the rental value as fixed in the lease and the rental value without the repairs,!''^ ^ut this is open to the objection that it assumes the rent fixed in the lease to be the actual rental value of the property with the re- pairs, and deprives the one party or the other of any profit that he may have by reason of the lease.^''^* The rule as first above stated seems preferable, the rent fixed being, however, regarded as prima facie the actual rental value.^^* In some jurisdictions a still different measure of damages from those above mentioned has been adopted, and a lessor fail- ing to ropair has been held liable for the actual loss involved in the expenditures of various kinds which the lessee was compelled 171 Winne v. Kelley, 34 Iowa, 339 ; "2 Parker v. Meadows, 86 Tenn. Leick V. Tritz, 94 Iowa, 322, 62 N. 181, 6 S. W. 49; Biggs v. McCurley, W. 855; Bostwick v. Losey, 67 Mich. 76 Md. 409, 25 Atl. 466. 554, 35 N. W. 246; Cook v. Soule, 56 172a For instance, suppose the N. Y. 420 ; Taylor v. Lehman, 17 rental value of the premises is $1,000 Ind. App. 685, 46 N. E. 84, 47 N. B. per year with the repairs, and $750 230. In Thomson-Houston Elec. Co. without the repairs, hut the lessee V. Durant Land Imp. Co., 144 N. obtained the lease at a low rent, say Y. 34, 379 N. E. 7, it is said: "We $750, in spite of the covenant to re- are inclined to the opinion that pair. In such case the lessee could, when a building erected for business a,ccording to the rule last stated, purposes is rented as a whole and recover merely nominal damages without any specific reference to a for breach of the covenant, though use by way of subletting, or where the rental value is reduced $250 by that is not the primary purpose con- the lack of repairs. Or suppose the templated by the parties, the dam- lessee had agreed to pay an unduly ages for the breach of a covenant to high rent, say $1,250, while the repair is the difference in the rental rental value with the repairs is only value of the premises as they are $1,000, and $750 without them. In and as they were to be, regarding such case the rule last referred to the premises as a whole, and that would give the lessee $500 damages, they are not to be measured 5y sup- though the rental value is reduced posed loss by reason of the tenant $250 only by the breach of covenant, being unable to parcel out separate "s See Kohne v. White, 12 Wash, portions and let them to underten- 199, 40 Pac. 794; Bien & Co. v. Hess, ants 42 C. C. A. 421, 102 Fed. 436. 590 PHYSICAL CONDITIONS. § S7 to make owing to the absence of repairs,^^* or for the conjec- tured loss of returns from the property caused thereby.i'''s In one case at least the tenant has been allowed for the probable profits of the business which he was prevented from continuing on the premises owing to the lack of repair ,^''6 but the great weight of authority is adverse to such an allowance."'^ In the case, 1T4 See Green v. Eales, 2 Q. B. 225. So where the tenant agreed to re- pair the inside, and the landlord the outside, increased expenditures by the tenant on the inside due to the landlord's failure to repair the outside were held to be recoverable. Miller v. McCardell, 19 R. I. 304, 33 Atl. 445. And for the lessor's fail- ure to repair a sawmill, the ex- pense of having the tenant's timber sawed at another mill was allowed. Hinckley v. Beckwith, 17 Wis. 413. And where the landlord failed to repair fences as agreed, the tenant was allowed to recover the expend- itures and losses Involved in keep- ing live stock away from his crops. Buck V. Rodgers, 39 Ind. 222. Where the lack of repair affected the productiveness of the premises leased, which consisted of a manu- facturing plant, it was held that the expenditures involved in operating the plant "over time" in order to obtain the normal product should be deducted from the agreed rent in order to determine the actual rental value with the repairs not made. Bien & Co. v. Hess, 42 C. C. A. 421, 102 Fed. 436. It was held that where the lessor agreed to keep the premises in re- pair, but it was also provided that the lessee should have the right, in case of the latter's default, to make the repairs himself, the lessee could recover only the cost of the repairs. Port V. OmdofE, 54 Tenn. (7 Heisk.) 167. iTB Hinckley v. Beckwith, 13 Wis. 31. In Spencer v. Hamilton, 113 N. C. 49, 18 S. E. 167, 37 Am. St. Rep. 611, where the lessor had covenant- ed to make certain repairs on the farm leased in clearing out ditches, and failed to do so, it was held that he was liable for the net amount by which the lessee's crop was de- creased by such failure. But see cases cited post, note 245. In Watson v. Hooton, 4 111. App. (4 Bradw.) 294, it was held that the fact that the lessee had sub- leased to another who paid him the same rent as he himself had agreed to pay did not affect the damages re- coverable by him for lack of re- pairs. I'^s Raynor v. Valentine Blatz Brew. Co., 100 Wis. 414, 76 N. W. 343. This case invxslve'd the lease of a theatre. The court says that loss of profits must clearly have been in the contemplation of the parties. 177 Bien & Co. v. Hess, 42 C. C. A. 421, 102 Fed. 436; Lightfoot v. West, 98 Ga. 546, 25 S. E. 587; Middle- kauff V. Smith, 1 Md. 329; Mason v. Howes, 122 Mich. 329, 81 N. W. Ill; Drago V. Mead, 30 App. Div. 258, 51 N. Y. Supp. 360; Dorwin v. Potter, 5 Denio (N. Y.) 306. See Kellogg V. Malick, 125 Wis. 239, 1&3 N. W. 1116. § 87 LANDLORD'S OBLIGATIONS^ TOWARDS TENANT. 591 however, of premises leased for the express purpose of use as a hotel or lodging house, with a covenant by the landlord to repair, the tenant has usually been allowed the amount which he has lost by reason of his inability to obtain occupants owing to the lack of repair of part of the premises.^''* It has been held that the lessee cannot, if he sues on the contract during the term, recover damages which may accrue from failure to repair during the balance of the term, since it cannot be known that the breach will continue.i'^s But though the action is brought during the term, if the trial takes place after the term, the jury may, it seems, give damages for the loss during the bal- ance of the term after the breach.^*" If the tenant himself makes the repairs upon the landlord's failure to make them, he can, as before stated, recover the amount of his reasonable expenditures in that behalf,i8i and presumably, in addition, the amount of the loss caused by the temporary lack of repair.182 There are dicta to the effect that, if a third person recovers against the tenant for injuries caused by dangerous conditions on the premises which would not have existed had the lessor com- plied with his covenant to repair, the tenant can recover from the lessor, as for breach of his covenant, the amount which he has thus been compelled to pay.^^^ It would seem on principle, ITS Gulliver v. Fowler, 64 Conn. is2 in Benkard v. Babcock, 25 N. 556, 30 Atl. 852; Myers v. Burns, 35 Y. Super. Ct. (2 Rob.) 175, 17 Abb. N. Y. 269; Hexter v. Knox, 63 N. Y. Pr. 421, 27 How. Pr, 391, it was held 561; Stewart v. Lanier House Co., that for breach of covenant by the 75 Ga. 582. Compare Thomson- lessor that the cellar should be free Houston Blec. Co. v. Durant Land from percolation of water through Imp. Co., 144 N. Y. 34, 39 N. B. 7, its walls or floor, the lessee could quoted ante, note 171. recover for actual loss arising from In Kohne v. White, 12 Wash. 199, the expense of repairing past and 40 Pac. 794, it is decided that the preventing future evils, and depriva- net rental value of the rooms after tion of the temporary use of the deducting the expenses involved in building, or its permanent deter- running the lodging house, and not ioration, though not for injuries their gross rental value, was to be which he could have prevented, allowed. *** See cases cited post, § 107, in 179 Block V. Ebner, 54 Ind. 544. which the right of a third person to ISO Cooke V. England, 27 Md. 14, recover against the lessor on ac- 92 Am. Dec. 618. count of injuries which would not 181 See ante, at note 157. have occurred if the lessor had com- 592 PHYSIQAL CONDITIONS. § 87 however, decidedly questionable whether such an item of loss to the tenant could be regarded as having been within the contem- plation of the parties at the time of the making of the covenant, within the general rule determining the amount of recovery for breach of contract.^** Since the tenant would not be entitled to recover for disturb- ance of his possession by reason of the making by the landlord of repairs in accordance with his covenant,!*^ the tenant making them himself, on the landlord's default in performance of the covenant, should not, it seems, be allowed to recover for the re- sulting disturbance of possession.^*® (10) Injuries to tenant's person or property on premises. A question of difficulty has arisen in connection with a landlord's covenant to repair, as to whether the tenant can recover, as against the landlord, for an injury to his person, or to his property on the premises, which would not have occurred had the landlord com- plied with his covenant. Such injuries resulting not directly from a breach of the contract, but from physical conditions existins apart from the contract, which the contract merely undertook to eliminate, cannot well be regarded as a proximate result of the breach of the contract, within the contemplation of the parties at the time of the making thereof. To allow a recov- ery for such injuries is to allow a recovery as for tort on account of a breach of contract. As has been remarked, there is no more reason for allowing such a recovery against a landlord than against any other person, a carpenter or contractor, for instance, who fails to carry out his contract to repair the premises.'^" plied with his covenant to repair is the lessor could be held liable to based in theory on a supposed right the tenant, conceding that he could of recovery by the lessee from the be held liable for any part of the lessor of any sum which might have amount for which the tenant had been recovered against the lessee by been made liable, a question which the person injured. the court refused to consider. i?4 In Consolidated Hand-Method iss See post, § 87 f (1). Lastlng-Mach. Co. v. Bradley, 171 ise gee Green v. Bales, 2 Q. B. 225 : Mass. 127, 50 N. E. 464, 68 Am. St. Ward v. Kelsey, 42 Barb. (N. Y.) Rep. 417, it was decided that a 582. But Mlddlekauft v. Smith, 1 judgment recovered against the ten- Md. 329, seems to be contra. ant under the employer's liability ust Tuttle v. Gilbert Mfg. Co., 145 act was not conclusive upon the Mass. 169, 13 N. E. 465. quf!stion of the amount for which § 87 LANDLORD'S OBLIGATIONS TOWARDS TENANT. 593 There are no doubt numerous cases in which one who has con- tracted to do a thing, and has entered upon the performance of the contract, has been held liable for negligence in the course of performance, as in the familiar case of injuries to one traveling under a contract of carriage,!*^ but there is, it is conceived, no principle upon which one can be held liable as for a tort merely because he has failed to perform a contract entered into by him, there being no obligation upon him, apart from the contract, to do that which he has contracted to do,^^^ unless perhaps an ele- ment of fraud has intervened.!^'' The view that a tenant or a member of his family cannot recov- er for personal injuries which would not have occurred had the landlord performed his covenant to repair finds support in a num- ber of decisions.!^! In others the right of recovery for such in- 188 See Pollock, Torts, c. 13 ; 1 Its association -with the attendant Jaggard, Torts, 895, 897. circumstances, a tortious act or 189 See Pollock, Torts (6th Ed.) omission. 512; Dustin v. Curtis, 74 N. H. 266, loi Dustin v. Curtis, 74 N. H. 266, 67 Atl. 220. 67 Atl. 220; Tuttle v. Gilbert Mfg. In Miles v. Janvrin, 196 Mass. 431, Co., 145 Mass. 169, 13 N. E. 465; 82 N. E. 708, 124 Am. St. Rep. 575, Glenn v. Hill, 210 Mo. 291, 109 S. it is said, per Loring, J., that "to W. 27, 16 L. R. A. (N. S.) 699 (sem- charge a landlord in tort for per- ble) ; Spellman v. Bannigan, 36 Hun sonal injuries caused by a negligent (N. Y.) 174; Kabus v. Frost, 50 N. omission to make needed repairs, Y. Super. Ct. (18 Jones & S.) 72; not only must the tenant prove thaf Sanders v. Smith, 5 Misc. 1, 25 N. the landlord agreed to keep the Y. Supp. 125; Miller v. Rinaldo, 21 premises in repair, but he must go Misc. 470, 47 N. Y. Supp. 636; Cuilhe one step further and prove that the v. Ackerman, 58 Misc. 538, 109 N. landlord agreed to maintain the Y. Supp. 714; Schick v. Fleisch- premises in a safe condition for his hauer, 26 App. Div. 210, 49 N. Y. (the tenant's) use. * * * In Supp. 962; Golob v. Pasinsky, 72 App. short, that so far as their safety is Div. 176, 76 N. Y. Supp. 388; Flynn concerned, the landlord's relation v. Hatton, 43 How. Pr. (N. Y.) 333; to the premises to be kept in re- Frank v. Mandel, 76 App. Div. 413, pair is the same as that of a land- 78 N. Y. Supp. 855; Van Tassel v. lord in case of common passageways Read, 36 App. Div. 529, 55 N. Y. in a tenement house." Supp. 502; Eschbach v. Hughes, 7 190 In Rich V. New York Cent. & Misc. 172, 27 N. Y. Supp. 320; H. R. R. Co., 87 N. Y. 382, it is de- O'Gorman v. Teets. 20 Misc. 359, 45 cided that a breach of contract may N. Y. Supp. 929 (sickness); Arnold be so intended and planned, and so v. Clark, 45 N. Y. Super. Ct. (13 interwoven into a scheme of op- Jones & S.) 252; Hamilton v. Feary, pression and fraud, as to become, in S Ind. App. 615, 35 N. E. 48, 52 Am. L. and Ten. 38. 594 PHYSICAL CONDITIONS. § 87 juries is denied upon the ground that the person injured con- tributed to the injury by remaining on or using the premises after knowledge of the defeet.^^^ Occasionally the landlord has been held liable for such injuries by reason of his noncompliance with his covenant to repair.i^^ In one case the lessor was held liable upon the theory that his failure to make repairs in accordance with his contract constitut- ed negligence on his part, it being said that where the landlord agrees to repair, "his duties and liabilities are in some respects St. Rep. 485; Collins v. Karatopsky, App. 340, 108 S. W. 616; Moore v. 36 Ark. 316; Davis v. Smith, 26 R. Steljes, 69 Fed. 518. And see cases I. 129, 58 Atl. 630, 66 L. R. A. 478, cited post, notes 196-201, as to the 106 Am. St. Rep. 691. landlord's liability for injuries to 192 Hanson v. Cruse, 155 Ind. 176, the tenant's goods on the premises. 57 N. E. 904; Hedekin v. Gillespie, There are also dicta in favor of 32 Ind. App. 650, 72 N. E: 143; imposing such liability in Edwards Martin v. Surman, 116 111. App. 282; v. New York & H. R. Co., 98 N. Y. Walker v. Swayzee, 3 Abb. Pr. (N. 248, 50 Am. Rep. 659; Perez v. Rab- Y.) 138; Arnold v. Clark, 45 N. Y. aud, 76 Tex. 191, 13 S. W. 177. Super. Ct. (13 Jones & S.) 252; Mc- There is sometimes an implication Ginn v. French, 107 Wis. 54, 82 N. to this effect, the court saying that W. 724; Reams v. Taylor, 31 Utah, in the absence of a covenant to re- 288, 87 Pac. 1089, 120 Am. St. Rep. pair the landlord is not lidble for 30. And see Alexander v. Rhodes, such injuries. See e. g., Harpel v. 104 Ga. 807, 30 S. B. 968; Thompson Fall, 63 Minn. 520, 65 n! W. 913; V. Clemens, 96 Md. 196, 53 Atl. 919, Laird v. McGeorge, 16 Misc. 70, 57 60 L. R. A. 580; Brown v. Toronto N. Y. Supp. 631; Tredway v. Machin, General Hospital, 23 Ont. 599. On 91 Law T. (N. S.) 310. the other hand, in Stillwell's Adm'r In Cavalier v. Pope [1906] App. V. South Louisville Land Co., 22 Ky. Gas. 428, afg. [1905] 2 K. B. 757, a Law Rep. 785, 58 S. W. 696, 52 L. husband and wife sued for injuries R. A. 325, it was held that, when from defects which the landlord had the landlord had promised to repair agreed to repair, and there was a a dangerous cistern on the premises, judgment for the husband, as for the lessee was not negligent in mov- breach of contract, for the expense ing on the premises with his small caused him by his wife's injuries, child, the tenant exercising care to There was no appeal from the judg- prevent the child falling into the ment for the husband, and conse- cistern, which it nevertheless did. quently the appellate courts do not 193 Sontag V. O'Hare, 73 111. App. discuss whether the expense thus 432; Stillwell's Adm'r v. South caused the husband was properly Louisville Land Co., 22 Ky. Law recoverable by him as damages for Rep. 785, 58 S. W. 696, 52 L. R. A. breach of contract. A judgment for 325; Collins v. Fillingham, 129 Mo. the wife was reversed. ^ 87 LANDLORD'S OBLIGATIONS TOWARDS TENANT. 595 similar to those of an owner and occupant. "^ 8* And in anothei case it is stated that his liability under such circumstances is to be based on his negligence in failing to make repairs in accord- ance with his covenant, after he has notice of the need of re- pairs, and the lapse of a reasonable time within which to make them.**^ But, as before suggested, it is difficult to see how the more breach of the contract can in any case constitute negligence, there being no legal duty upon the lessor as to the condition of the premises, apart from the contract. If the landlord, after contracting to repair, commences the making of repairs, and in the course of the work renders the premises dangerous to persons thereon by reason of what he him- 19* Barron v. Liedlofl, 95 Minn, to the tenant, or a member of hla 474, 104 N. W. 289. There the per- family, for damages for personal In- son injured was a sublessee holding juries sustained by reason of the under a lease from defendant's ten- defective condition of the premises, ant. (Post, § 97 c). The case does whether such suit be in assumpsit not discuss the theory of liability, or in case, but in order to recover and cites two cases only, one involv- such damages there must be shown ing the liability of a landlord for some clear act of negligence or defects in an elevator of which he misfeasance on the part of the land- retained the entire control as not lord beyond the mere breach of con- being included in the leased prem- tract." It was held in this case ises, and the other involving the that the landlord was not negligent, question of the lessor's liability for since he did not know of the need concealed defects existing at th« of repairs, and consequently was time of the lease of which he had not liable for the personal injuries, reason to know. The same result, under the facts, 195 Thompson v. Clemens, 96 Md. might have been attained on the 196, 53 Atl. 919, 60 L. R. A. 580, theory that the contract to repair where it is said. "It may Be con- was to be construed as requiring ceded that in this state, when a the landlord to repair only when he landlord has agreed to make repairs, had notice of the need of repair, as there is a duty resting on him to before stated. See ante, § 78 d (6). do so, and upon his failure the ten? The statements made in the case ant may either sue on his contract .last cited are approved in Graff v. or bring an action on the case found- Lemp Brew. Co., 130 Mo. App. 618. ed in tort for neglect of that duty. 109 S. W. 1044, where it is also * * • It seems to us that the said that if a duty from one per- correct rule in a case such as the ison to another becomes an incl- one under consideration is that the dent of the relation between them, mere failure of the landlord to make though it is created by contract, a repairs which he had agreed to negligent omission to discharge if make cannot make him responsible gives a right of action ex delicto. 596 PHYSICAL, CONDITIONS. § 87 self dees, he is then, it is evident, liable as for negligence on ac- count of injuries to the tenant or other person rightfully on the premises, not himself guilty of contributory negligence. There are a number of decisions to the effect that the landlord is liable for injuries to the tenant's property on the leased prem- ises which would not have occurred had the landlord complied with his covenant to repair .^^e jjo distinction can, it is conceived, be taken between the case of injury to the person of the ten- ant or one of his family, and injury to his chattels on the prem- ises, and these cases may be considered as equivalent to decisions that he would be liable for such personal injuries as a result of his failure to perform his contract.^^^ Occasionally, on the other hand, it has been decided that he is not so liable for injuries to the tenant's chattels^®® for the reason, as sometimes stated, that the tenant has no right to leave his property where it is exposed IBS Brunswick Grocery Co. v. Spen- g,nt had been performed could be cer, 97 Ga. 764, 25 S. E. 764; Mason recovered, the fact that property oB V. Howes, 122 Mich. 329, 81 N. "W. the premises was injured owing to 111 (semble) ; Rauth v. Davenport, the defects could be proven for the 60 Hun, 70, 14 N. Y. Supp. 69; Cole- purpose only of showing that the man v. Central Trust Co., 25 Misc. premises could not be used as orig- 295, 54 N. Y. Supp. 561; Phillips v. inally intended. Ehrmann, 8 Misc. 39, 28 N. Y. Supp. In Vamer v. Rice, 39 Ark. 344, and 519; Ehinger v. Bahl, 208 Pa. 250, Wisdom v. Newberry, 30 Mo. App. 57 Atl. 572; Kohne v. White, 12 241, it is decided that in case of Wash. 199, 40 Pac. 794; Murphy v. breach of contract to repair a fence, Farley, 124 Ala. 279, 27 So. 442. See there is no right of recovery for con- Green V. Eales, 2 Q. B. 225; Pratt, sequent injuries to crops. Com- Hurst & Co. V. Tailer, 186 N. Y. pare cases cited post, note 202. 417, 79 N. E. 328. In Leavltt v. Fletcher, 92 Mass. i»TSee ante, at note 193. (10 Allen) 119, it was decided that 198 In Dorwin v. Potter, 5 Denio a covenant to make repairs on 'the (N. Y.) 306, the landlord was held outside of the building did not ren- not to be liable for injury to tliS der the landlord liable for injuries tenant's dairy stock and decrease in to the tenant's articles in the build- the supply of milk resulting from ing caused by a fall of the building, defects in a barn which he haS since the covenant was in effect not. agreed to keep in repair. In Cook that the outside would not give way, V. Soule, 56 N. Y. 420, it was held but that if it did he would repair it. that while only the difference be- But in Green v. Eales, 2 Q. B. 225, a tween the actual rental value of substantially similar covenant was the premises and that which they construed differently, it seems, would have had in case the coven- § 87 LANDLORD'S OBLIGATIONS TOWARDS TENANT. 597 to injury owing to the nonrepair of the premises/"'* while some- times it is stated that the landlord is not liable for the reason that the tenant could have avoided any such injury by making the repairs himself, it being the duty of one injured to reduce the damage so far as possible.^oo In one or two cases, the fact that the tenant thus failed to make repairs is regarded as a ground for exempting the landlord from liability only if the making of repairs would have involved but a small outlay by the tenant.^**! 199 Hendry v. Squier, 126 Ind. 19, 25 N. E. 830, 9 L. R. A. 798; Cook v. Soule, 56 N. Y. 420; Reiner v. Jones, 38 App. Div. 441, 56 N. Y. Supp. 423; Weinberg v. Ely, 114 App. Div. 857, 100 N. Y. Supp. 283; Cantrell v. Fowler, 32 S. C. 589, 10 S. E. 934. In Flynn v. Trask, 93 Mass. (11 Allen) 550, involving an action of contract on the agreement to re- pair, it was held that evidence of the lessee's failure to exercise due care to prevent injury by the land- lord's failure to perform his contract could be given only in reduction of damages. This is, of course, a rule applicable to any action on a con- tract. In this case it seems that damages were given by the jury for injuries to property on the premises, but, the opinion says, "No instruc- tions were asked or objected to upon the rule of damages." Where a tenant, aware of the de- fective condition of the premises, remained thereon, relying on the landlord's promise to repair and to pay him for any damage to his furniture from lack of repair, it was held to be a question for the jury whether the tenant was justified in remaining and so entitled to recover for such damage. Bold v. O'Brien, 12 Daly (N. Y.) 160. And see NTeglia v. Lielouka, 32 Misc. 707, 65 N. Y. Supp. 500. That the tenant was, under particular circumstances. justified in remaining, see Miller v. Sullivan, 77 Kan. 252, 94 Pac. 266. In Mason v. Howes, 122 Mich. 329, 81 N. W. Ill, a tenant was decided not to be negligent in remaining on the premises, though the plastering which fell on him was defective, he not knowing this fact. In Gavan v. Norcross, 117 Ga. 356, 43 S. E. 771, it is decided that a statement by the landlord, after the destruction of the roof by fire, made to the tenant, that it was not nec- essary to remove from ,the building on account of the fire, did not jus- tify the tenant in leaving his prop- erty there exposed to the rain. Elven if regarded as a guaranty against injury to the goods, it would be invalid as not based on any con- sideration. 200 Hendry v. Squier, 126 Ind. 19, 25 N. B. 830, 9 L. R. A. 797; Cantrell V. Fowler, 32 S. C. 589, 10 S. B. 934. See Brett v. Berger, 4 Cal. App. 12, 87 Pac. 222, where the lessor's con- tract was to furnish material for re- pairs. 201 Parker v. Meadows, 86 Tenn. 181, 6 S. W. 49. See Biggs v. Mc- Curley, 76 Md. 409, 25 Atl. 466. The tenant cannot, it has been held, be deprived of a right to re- cover damages for Injury to his property by the fact that he failed to make the repairs himself, if the landlord purported to make them 598 PHYSICAL CONDITIONS. § 87 Occasionally the covenant to repair expressly states that the purpose is to avoid a particular source of injury, and such injury may then be regarded as within the contemplation of the parties and as consequently a proper element of damages for breach of the covenant.-"^" So in the case of a covenant to repair fences so as to prevent injury to crops from live stock, the tenant has been held to be liable for such injuries to the crops resulting from the landlord's failure to repair the fences-^^^ e. Contract by landlord to improve or put in repair — (1) General considerations. The contract to repair, above consider- ed, is one to keep in repair, that is, to make repairs as occasion for them arises during the tenancy, such a contract, of itself, or- dinarily assuming that the premises are already in repair. Oc- casionally the lessee, knowing that the premises are not in repair, or are in an unfinished condition, or are otherwise in a condition not suited to his purposes, requires the lessor to agree generally to put the premises in repair, to make certain repairs, or to com- plete certain designated improvements. The principles appli- cable to such an agreement are ordinarily the same as those appli- cable to an agreement to keep in repair. Some matters, however, in connection with contracts for specific repairs or improvements, (repairs of leaks in the roof) and So. 865; Culver v. Hill, 68 Ala. 66, told the tenant that he had done 44 Am. Rep. 134; Buck v. Rodgers, so. Dempsey v. Hertzfield, 30 Ga. 39 Ind. 222. Se^ Hay v. Short, 49 866. To the same elfect, see Miller Mo. 139. In such cases the contract V. Sullivan, 77 Kan. 252, 94 Pac. 266. may, it would seem, he construed And it has been suggested that he as a guaranty against injury from might he excused from making them the cause named provided the land- by the fact that the landlord prom- lord knows of the lack of repairs, ised to make them after being in- Somewhat similar, at least in the- formed that they were necessary ory, is a case in which the landlord (Flynn v. Hatton, 43 How. Pr. [N. reserved the right to care for cer- Y.] 333), a view which is disap- tain trees on the premises and proved in Sanders v. Smith, 5 Misc. agreed that in caring for them he 1. 25 N. Y. Supp. 125. would not injure the tenant's plants, 2oia See the remarks in Miles v. and he was held liable for injuries Janvrin, 196 Mass. 431, 82 N. E. 708, to the plants caused by a mixture 124 Am. St. Rep. 575, as to an agree- which he sprinkled on the trees ment by the lessor to maintain without reference to whether Jie premises in safe condition. Ante, was negligent. Roussinet v. Re- note 189. bout, 76 Cal. 454. And see Beakes v. 202 Bloodworth v. Stevens, 51 Miss. Holzman, 47 Misc. 384, 94 N. T. 475; Rowe v. Baber, 93 Ala. 422, 8 Supp. 33. § 87 LANDLORD'S OBLIGATIONS TOWARDS TENANT. 599 may conveniently be considered apart from the other class of con- tracts referred to. There is a decision in one state that a lease of a store in a build- ing in course of erection involves a covenant by the lessor that the store shall be finished and fit for use at the commencement of the term named,203 but this seems questionable, and in another state it has been decided that a lease of a building in course of construction does not imply a covenant to complete it.*°* (2) Inference from contract to keep in repair. Even without an explicit contract by the landlord to put the premises in repair, a contract by him to keep the premises "in good repair," requires him to put them in good repair, if out of repair at the time, the degree of repair to be determined with reference to the nature, age, and location of the premises.^"^ In two states a covenant, in the lease of a building for a par- ticular purpose, to make repairs, is said to require the building to be put in such repair as the purpose requires.^"^ And in an- other a covenant to "do all necessary repairs" was held to re- quire the floors to be put in as good condition at least as they were in when originally construeted.^o^ 203 La Farge v. Mansfield, 31 there could be fires in the rooms. Barb. (N. Y.) 345 (one out of three Meyers v. Burns, 35 N. Y. 269. judges dissenting). There is a 2»'' Piper v. Fletcher, 115 Iowa, dictum to that effect in Paul B. 263, 88 N. W. 380; Riley v. Pettis County, 96 Mo. 318, 9 S. W. 906. Pough & Co. T. Cerimedo, 44 Misc. 246, 88 N. Y. Supp. 1054. In the latter case the covenant actu- ally was "to keep in good repair," 204itatkowski v. Masolowski, 57 ^^j^.,^ ^^.^^^ ^^^ ^^^^ ^^^^ ^^^^ 111. App. 525. accord with those cited in the prev- 205 Saner v. Bilton, 7 Ch. Div. 815; joug note. Both decisions cite My- Payne v. Haine, 16 Mees. & W. 541; ers v. Bums, 35 N. Y. 269, supra. Miller v. McCardell, 19 R. I. 304, see, also, Olson v. Schultz, 67 Minn. 33 Atl. 445, 30 L. R. A. 682. In 494^ 70 N. W. 779, 36 L. R. A. 790, Keroes v. Richards, 28 App D. C. 64 Am. St. Rep. 437. 310, such Is said to be the result of 207 Ward v. Kelsey, 38 N. Y. 80, 97 a covenant merely "to repair." The Am. Dec. 773. authorities cited do not sustain the a covenant to make specific re- statement, pairs can, obviously, not be con- A covenant to keep in good nee- strued as requiring the making of essary repair, in the lease of a hotel, all repairs necessary to make the was held to require the landlord to premises perfectly safe. Howell v. put the flues in such condition that Schneider, 24 App. D. C. 5M. 600 PHYSICAL CONDITIONS. § 87 (3) Consideration to support the contract. An agreement to put in repair, or for specific repairs and improvements, must, like one to keep in repair, be supported by a consideration, and if made after the demise without any new consideration, it is in- valid.^os A promise to pay an increased rent is sufficent consid- eration,209 as is the waiver of the lessee 's right to rescind the lease for false representations made by the lessor.^i" A contract by the lessor, made after the destruction by fire of the buildings on the land, to rebuild, if the lessee will replace the machinery, is supported by a sufficient consideration.^" And there is, no doubt, a sufficient consideration if the tenant has a right to relin- quish possession owing to the condition of the premises, and the lessor agrees to make the repairs in consideration of the tenant's consent to remain.212 (4) Nature of the contract. A covenant to put in repair or improve differs from one to keep in repair in that it is not a con- tinuing covenant admitting of successive breaches, but, when broken, it is broken once for all.^is A covenant to put in repair or improve no doubt runs, before breach, in favor of an assignee of the leasehold and against a transferee of the reversion, 21* but since, as just stated, it is not continuous, if it is broken before a transfer of the leasehold or of the reversion, there can be no further breach and the covenant does not run.^is 208 Hardison v. Hooker, 25 Tex 210 Sisson v. Kaper, 105 Iowa, 599, 91; Handrahan v. O'Regan, 45 Iowa, 75 N. W. 490. 298. 2iiFrey v. Vlgnier, 145 Cal. 251, In Vass V. Wales, 129 Mass. 38, it 78 Pac. 733. was held that where an agreement 212 See Beakes v. Holzman,, 47 by the lessor to make certain re- Misc. 384, 94 N. Y. Supp. 33; Ben- pairs was in a separate paper, but nett v. Sullivan, 100 Me. 118, 60 was contemporaneous with, and a Atl. 886 and cases cited a'nte, note part of the same transaction as, the 139. lease, the acceptanoe of the lease 213 Coward v. Gregory, L. R. 2 C. which contained a covenant to de- P. 153; Chadwick v. Woodward, 13 liver up the premises at the end of Abb. N. C. (N. Y.) 441. the term in as good order and re- 211 Spencer's Case, 5 Coke, 16 a; pair "as the same now are or may Gerzebek v. Lord, 33 N. J. Law, 240. be put into by the lessor" was a 215 Coward v. Gregory, L. R. 2 C. sufficient consideration. P. 153 ; Grescot v. Green, 1 Salk. 209 See Donellan v. Read, 3 Barn. 199; Morris v. Kennedy [1896] 2 & Adol. 899. Ir. 247. § 87 liANDLORD'S OBLIGATIONS TOWARDS TENANT. 601 (5) Character of improvements or repairs. The decisions con- struing various covenants of this nature with regard to the char- acter of the improvements or repairs required thereby are not susceptible of reduction to any general principles. Several of them are stated in the notes below.^i^ Sometimes the contract is to complete a building in course of construction,^!^ and some- times merely to put in repair or to improve a building already erected.^!* A covenant of the former class, that is, to complete In Gerzebek v. Lord, 33 N. J. Law, 240, the lessor agreed "to give said house one coat of paint inside and out, to repair and cleanse the walls Inside, and also, during the term of lease, to repair the water pipes and water, closets, walls, and do all other necessary repairs to make the property in a good and tenantable condition," and It was held that the covenants to give a coat of paint and to repair and cleanse the walls were capable of but a single breach, and consequent- ly, if not performed within a reas- onable time, were broken, and the' burden did not paarently recognized what the reconstruction with the in Clark v. Gerke, 104 Md. 504, 65 same material would have cost, thus Atl. 326, where the obligation of the Indicating the view that the lessor landlord to reimburse the tenant for would be bound for so much of the the cost of repairs was based upon cost as fell outside the covenant. his request to the latter to make aisa See Stroud's Judicial Dictloa- them. ary, sub voce "Owner." 312 See ante, § 87 d g; post, § 182 p. 622 PHYSICAL CONDITIONS. § 88 lessee was such as to render him liable to the particular charge in question, and there have been numerous decisions as to the construction of particular words in the covenant, such as "rates," "assessments," "impositions," "duties," "charges," and "out- goings, "^i* B. As TO Adjoining Parts, Places and Premises. § 88. Parts of building not open to tenant. The owner of a building frequently demises a part thereof, re- taining the balance in his own control, with the purpose of occu- pying it himself, or of subsequently leasing it to another. More- over, when he demises different parts of the building to various persons, there are almost invariably portions of the building which cannot be regarded as included in any one of the various demises, the roof for instance, or, in some cases, the foundation, as well as passage ways, approaches, or other places which are open to use by more than one tenant. We will consider in the next section the landlord's obligations as regards the condition of parts of the building, the possession of which is retained by him, but which are open to use by one or more tenants. In this we will consider his obligations as regards the condition of parts of the building not demised and not open to use by the tenants. The general rule in this regard is that the landlord, thus re- taining part of the building in his possession, is liable to the ten- ant, as he would be to a third person, for injury to the tenant's person or property caused by his, the landlord's, failure to exer- cise due care to prevent such injury by reason of a dangerous condition of that part of the property in his possession.^^s ^g. cordingly, a landlord has been held liable for injury to the tenant caused by the fall of a sign board, appertaining to the part of the building retained by the landlord, which was inadequately se- cured,^^^ and he has likewise been held liable for injury to the tenant of a lower floor caused by the collapse of an upper floor 31* See the cases collected in Faw- Nat. Bank v. Swope ( Tex. Civ. cett, Landl. & Ten. (3d Ed.) at p. App.) 18 Tex. Ct. Rep. 328, 101 S. 389; Woodfall, Landl. & Ten. (16th W. 872. Ed.) at 589 et seq. sie Payne v. Irvin, 144 111. 482, 3' 315 There is no liability apart N. E. 756. from negligence. American Exch. 88 LANDLORD'S OBLIGATIONS TOWARDS TENANT. 623 owing to alterations made in the latter by a former tenant, the landlord having failed, after the departure of such former tenant, to exercise reasonable care to detect and eliminate the possibility of danger from such alterations.^!^ And so he has been regarded as liable for injuries to the chattels belonging to the tenant of a part of the building, caused by the fall of a chimney, or other part of the building, not a part of the demised premises.^!* The ceiling of a particular apartment leased is part of the leas- ed premises and is not within the landlord's control so as to sub- ject him to liability for defects therein,^!^ unless perhaps it is expressly excepted from the operation of the lease.^^o The owner of a building, leasing a part thereof and retaining possession of another part, is bound to exercise ordinary care to avoid injury to his tenant by the manner in which he may use the part retained by him.^^i "phis duty . does not grow out of the relation of landlord and tenant, but is merely one as- pect of an obligation, generally incumbent iipon one in possession SIT Quigley v. H. W. Johns Mfg. That the landlord has mada re- Co., 26 App. Dlv. 434, 50 N. Y. Supp. pairs to the ceiling does not show 98. In this case it was held that ^ny obligation upon his part to keep the fact that the tenant injured had ^ jj^ repair. Dalton v. Gibson, 192 the opportunity to examine the up- ^^^^ ^^ ^^ j^ ^ ^,^.35^ ^^g ^^ g^ per floor did not necessarily show ^ig; Schiff v. Pottlitzer, 51 that he was guilty of contributory ^.^^ ^^^ ^ ^ ^^^^ ^^^ negigence,smce the jury might find ^^ ^ Cunningham, that reasonable care on the part of the landlord involved a higher de- 103 Ala. 449, 15 So. 826, 49 Am. St. gree of diligence than reasonable Rep. 42 (dictum) ; Glickauf v. Maur- care on the part of the tenant. er, 75 111. 289, 20 Am. Rep 238; 318 Eagle V. Swayze, 2 Daly (N. Railton v. Taylor, 20 R. I. 279, 38 Y.) 140; Bold V. O'Brien, 12 DaljT Atl. 980, 39 L. R. A. 246. (N Y.) 161. ^ covenant, by one leasing an up- S19 Dalton V. Gibson, 192 Mass. 1, per floor, not to permit the lower floor 77 N. E. 1035, 116 Am. St. Rep. 218; to be usea for any business of a nox- Kushes V. Ginsberg, .99 App. Div. ious or offensive character, or .which 417, 91 N. Y. Supp. 216; Boden v. was hazardous, was held not to ap- Scholtz, 101 App. Div. 1, 91 N. Y: ply to a business carried on by the Supp. 437; Schiff v. Pottlitzer, 51 lessor at the time of the lease on Misc 611, 101 N. Y. Supp. 249; Pol- such lower floor, as the lessee, knew •lak V. Stolzenberg, 110 N. Y. Supp. when taking the lease. Neiman v. 224. Butler, 46 N. Y. St. Rep. 928, 19 N. 320 See Golob v. Pasinsky, 178 N. Y. Supp. 403. Y. 458, 70 N. E. 973. 624 PHYSICAL CONDITIONS. § gg j of property, to employ reasonable care to so use it as not to injure the owner or possessor of neighboring property .^^^ On this prin- ciple a landlord has been held liable for injury to the tenant of a floor in his building by the leakage of water or other liquid from an upper floor occupied by the landlord, as a result of the use made by him of that floor.^^s j^^id. the existence of such leakage is, it seems, prima facie evidence of negligence on the part of the landlord in the control of the upper floor .^2* The question wheth- er he could be held liable for such leakage, although not guilty of negligence, might arise in some jurisdietions.^^^ Though a landlord is, as above indicated, bound to exercise diligence to prevent injury to the person or property of the tenant of one part of a building by reason of the condition or use made by him of the other part, he has ordinarily been regarded as under no obligation to keep .such part of the building in repair merely in order to protect such tenant from injury by extraneous agen- ^ cies. Accordingly it has been decided that the tenant of a part ! of the building cannot demand that the landlord repair leaks in the roof, or hold him liable for injuries to the tenant's chattels upon his failure to do so and the consequent flooding of the prem- ises by rain.326 The tenant has, however, an easement in the use :i22 See Krueger v. Perrant, 29 32c Doupe v. Genin, 45 N. Y, 119, Minn. 385, 13 N. W. 158, 43 Am. St. 6 Am. Rep. 47; Simons v. Seward, 54 Rep. 223; 1 Cyclopedia Law & Proc. N. Y. Super. Ct. (22 Jones & S.) 769. 406; Krueger v. Ferrant, 29 Minn. As to the riglit of the landlord, 385, 13 N. W. 158, 43 Am. Rep. 223; apart from any question of negli- Dalton v. Gibson, 192 Mass. 1, 77 N. gence, to use the adjoining parts of E. 1035, 116. Am. St. Rep. 218 (sem- the building in a way injurious to hie) ; Jones v. Millsaps, 71 Miss. 10, the tenant, see post, §§ 135, 185 f 14 So. 440, 23 L. R. A. 155; Hanley (8). V. Blanks, 6 Okl. 79, 51 Pac. 664; 323 Hysore v. Quigley, 9 Houst. Betcher v. Hagell, 38 Nova Scotia, (Del.) 348, 32 Atl. 960; Stapenhorst 517. See 1 Wms. Saund. 322, note V. American Mfg. Co., 36 N. Y. Super, to Pomfret v. Ricroft, by Sergeant Ct. (4 Jones & S.) 392, 15 Abb. Pr. Williams, wHere he expresses an (N. S.) 355. opinion to this effect and refers to 324 Levy V. Korn, 30 Misc. 199, 61 Tenant v. Goldwin, 6 Mod. 314, 1 N. Y. Supp. 1109. See cases post, Salk. 361, where a case in Keilw. notes 401, 402. 98 b, in which two judges are said- 325 See the reference to the doc- to have expressed a contrary view, trine of Rylands v. Fletcher, L. R. is questioned. 3 H. L. 330, post, at note 428. I 88 LANDLORD'S OBLiaATIONS TOWARDS TENANT. 625 of the roof for his protection, and if the landlord impairs this by active interference, as by tearing off the roof, he is liable to the tenant for the resulting injury to the latter 's goods.^a^ The ten-, ant has, furthermore, it seems, a right to inspect the roof and to make repairs thereon, in accordance with the general rule that the owner of the dominant tenement may repair the subject of the easement.*-® In two or three states a more stringent view as to y the obligations of the landlord as regards the condition of the roof has been asserted, to the effect that if the control thereof remains in him, he is bound to exercise reasonable diligence to keep it sufficiently in repair to protect the property of the ten- ants from injury by the weather, and is liable in damages if he fails to do so.s^^ In New York it has been clearly decided by the 32T Sulzbacher v. Dickie, 6 Daly in repair. In Rehbach v. Vogt, 126 (N. Y.) 476; Worthington v. Parker, 111. App. 613, he is said to be bound 11 Daly (N. Y.) 561; Randolph v. to exercise reasonable diligence to Feist, 23 Misc. 650, 52 N. Y. Supp. discover and repair defects. In 109; Pratt, Hurst & Co. V. Taller, 186 Bissell v. Lloyd, 100 111. 214, .there N. Y. 417, 79 N. B. 328; Herbst v. was a covenant by the lessee to re- Hafner, 7 Pa. Super. Ct. 363. And pair the room leased, and the court see cases cited ante, notes 255, 274, says that "the fair implication from 276. this express undertaking is that the 328 See Sergeant Williams' note to lessor undertook to keep the resl- Pomfret v. Ricroft, 1 Wms. Saund. due of the building in repair." In 322; Krueger v. Ferrant, 29 Minn. Trower v. Wehner, 75 111. App. 655, 385, 13 N. W. 158, 43 Am. Rep. 223; a like undertaking was inferred Hanley v. Banks, 6 Okl. 70, 51 Pac. from a covenant by the lessee to 664. return in good condition the portion 329 Toole V. Beckett, 67 Me. 544, of the building leased. The pro- 24 Am. Rep. 54, is to this effect, priety of thus inferring an intention This case is criticized in Krueger v. to impose an obligation on the land- Ferrant, 29 Minn. 385, 13 N. W. 158, lord from a covenant so clearly in- 43 Am. Rep. 223, and In Jones v. serted for his protection may well Millsaps, 71 Miss. 10, 14 So. 440, 23 be doubted. L. R. A. 155, in which latter case it In Guthman v. Castleberry, 49 Ga. is well said that "the vice of the 272, it was held that the landlord opinion is that it confounds the pas- was liable for failure to repair the sivity of the landlord with afiBrma- roof if he had notice of the need of tive action on his part amounting repairs. But this was no doubt to negligence." based on the statute of that state In Fairmount Lodge No. 590 v. requiring the landlord to keep the Tilton, 122 111. App. 636, the land- premises in repair. Ante, § 87 c. lord is held to be under an obliga- In Kneeland v. Beare, 11 N. D. 233, tion in such case to keep the roof 91 N. W. 56, it is positively asserted L. and Ten. 40. 626 PHYSICAL CONDITIONS. § 88 highest court that the landlord owes no obligation to the tenant of a part of the building to repair the roof so as to protect the tenant from injury by the action of the elements,^^" but a later case in that court is perhaps calculated to raise some question in regard thereto,^^! and there are eases in the intermediate ap- pellate court which cannot be reconciled with such a view.^'^ It that the landlord is bound to rS- by reason of the insufficiency of pair the roof, but there the injury the roof to protect the ceiling from was caused, not by failure to repair the rain, the landlord would not, the roof, but by the landlord's neg- under the doctrine of Doupe v. Gen- Hgence in failing to keep the water in, 45 N. Y. 119, 6 Am. Rep. 47, spout clear, so that water was col- supra, be liable therefor, while if it lected upon the roof to such a depth fell, not by reason of the insuffl- as to pass through a hatchway, ciency of the roof as a protection, There is an element of active mis- but because the landlord negligently feasance in such a case. The occu- allowed the roof to become so weak pant of property so constructed as as to fall upon the ceiling, he would to collect water to the injury of be liable. neighboring property unless drained 332 That he is under such an obliga- ofE would seem to owe a duty of tion is decided in Schwartz v. Monday, diligence to see that the drain is 49 Misc. 527, 97 N. Y. Supp. 978; Val- unobstructed. See somewhat analo- entine v. Woods, 59 Mi^c. 471, 110 N. gous cases cited 3 Farnham, Waters, Y. Supp. 990. In Rauth v. Daven- § 982, and Hargroves, Aronson & Co. port, 60 Hun, 70, 14 N. Y. Supp'. 69, V. Hartopp [1905] 1 K. B. 472, where the landlord was held liable for in- the landlord was on this theory held juries to the tenant's property owing liable for failure to clear out a to leakage through the roof which gutter on the roof. was under the landlord's control. 330 Doupe V. Genin, 45 N. Y. 119, The decision seems to be based in 6 Am. Rep. 47. part on the fact that the landlord 331 In Golob V. Pasinsky, 178 N. Y. promised to repair the roof if the 458, 70 N. B. 973, it was held that a tenant would remain. So far as it complaint for personal injuries to holds that apart from this promise a tenant caused by the fall of a ceil- the landlord is liable in such a ing was good on demurrer when it case, it is, it seems, in conflict with alleged that by the negligence of Doupe v. Genin, 45 N. Y. 119, 6 Am. defendant landlord the roof was Rep. 47, though it attempts to dis- permitted to become dangerous and tinguish the later case on the ground out of repair, and that this danger- that there the defect in the roof was ous condition caused the plaster of the result of fire. How the cause of the ceiling to fall. As the court the defect in the roof can affect the says: "How the defective condition question does not appear. In Frank of the roof caused the ceiling to v. Simon, 109 App. Div. 38, 95 N. fall was a matter of proof, not of Y. Supp. 666, it is decided, without pleading." If the ceiling fell merely any mention of Doupe v. Genin, 45 § 88 IaAndlord's obligations towards tenant. 627 is somewhat difficult to perceive upon what principle an obligation can be imposed on the landlord to repair the roof for the protec- tion of the tenant from the elements. Such a duty cannot well grow out of the relation of landlord and tenant, since there is, as is well settled,**^ hq obligation on the former to keep the prem- ises in good and suitable condition, and the fact that he is, as it were, the owner of adjoining property, which is a source of pro- tection to the leased premises, would not ordinarily obligate him to make repairs on such property.^** It has been decided that, even conceding that the landlord is under an obligation to repair the roof which is under his control, he is under no such obligation as regards a part of the roof which covers only that part of the building included in the lease, since that is to be regarded as within the tenant's control.^ss And the tenant could not recover for injuries to his property on the prem- ises if he left it there knowing of the possibility of injury.^^* It has also been recognized that such a liability for nonrepair of the roof, not based upon any express stipulations in the instru- ment of lease, if its existence is to be conceded, is to be regarded as tortious in character, arising from negligence, and not as aris- ing from an "implied contract" to keep the roof in repair.**'' On the same theory as that asserted in connection with the re- pair of the roof, that the landlord is under no obligation to repair parts of the building under his control, in order to protect the parts included in the lease, so long as the nonrepair does not make the former an actual source of danger to the latter, the tenant N. Y. 119, 6 Am. Rep. 47, supra, that 321, note (1) to Pomfret v. Rlcroft. the landlord was liable for injury In Cheeseborough v. Green, 10 Conn, to a tenant caused by the fall of the 318, 26 Am. Dec. 396, he is said to be ceiling In his apartment, resulting under no such obligation at law, from leakage through the roof of whatever might be the case in the building, loosening the plaster, equity. 333 See ante, § 87 a. 335 Lichtig v. Poundt, 23 Misc. 632, 334 The owner in fee of the upper 52 N. Y. Supp. 136; Margolius v. floor of a building has been regarded Muldberg, 88 N. Y. Supp. 1048. as under no obligation to repair the sse Klausner v. Herter, 36 Misc. roof for the benefit of the owner of 869, 74 N. Y. Supp. 924; Margolius the lower floor. Pierce v. Dyer, 109 v. Muldberg, 88 N. Y. Supp. 1048. Mass. 374, 12 Am. Rep. 716; Tenant 337 Kuhn v. Sol. Heavenrich Co., V. Goldwi'n, 6 Mod. 314, 1 Salk. 361, 115 Wis. 447, 91 N. W. 994, 60 L. R. 2 Ld. Raym. 1091, 1 Wms. Saund. A. 585. 628 PHYSICAL, CONDITIONS. § gg of a part of the building, it has been decided, cannot, upon the fall thereof, recover of the landlord on account of the latter 's failure to keep in repair the outside or other wall on which the leased premises were dependent for support, it being for the ten- ant to make repairs necessary for this purpose.**^ The landlord is under no greater obligation to his tenant as regards such a wall than any owner of land is to repair a wall thereon which furnishes a support to a building on adjoining land, and no such obligation, it has been decided, exists as against an adjoining owner.^ss In some jurisdictions, even though the landlord is under no obligation to keep in repair parts of the building in his control as a means of protection to the tenant, in the sense that he is liable for injuries caused by failure to repair, the latter may, pre- sumably, abandon the premises and refuse to pay rent, if such lack of repair renders the premises untenantable.**" If the landlord maintains a nuisance upon the premises of which he retains control, he is no doubt liable to the tenant of an- other part of the building, as he would be to any adjoining owner, and he is so liable if he authorizes another to maintain a nuisance thereon, or leases it for a purpose which involves the maintenance of a nuisance.^*! § 89. Places open to use by tenant. a. Common approaches. It frequently happens that the owner of a building demises separate parts thereof to different tenants, access to which parts is by means of a passage, stairway, or other means of approach, which, while intended for the use of the different tenants, is not in itself included in the demise to any one of them and consequently remains in control of the land- lord. In such ease the landlord in effect invites the use 338 Colebeck v. Girdlers' Co., 1 Q. York v. Steward, 21 Mont. 515, 55 B. Div. 234; Ward v. Fagin, 101 Mo. Pac. 29, 43 L. R. A. 125; Graves y. 669, 14 S. W. 738, 10 L. R. A. 147. 20 Berdan^ 26 N. Y. 498. Commented Am. St. Rep. 650; Miles v. Tracey, on in Doupe v. Genin, 45 N. Y. 28 Ky. Law Rep. 621, 89 S. W. 1128. 119, 6 Am. Rep. 47; Johns v. Eichel- 339 Chauntler v. Robinson, 4 Bxch. berger, 109 111. App, 35. And see 163; Pierce v. Dyer, 109 Mass. 374, post, § 182 n. 12 Am. Rep. 716. 34i Winter v. Baker, 3 Times Law 340 See Bissell v. Lloyd, 100 111. R. 569; .Tenkins v. Jackson, 40 Ch. 214; Vann v. Rouse, 94 N. Y. 401; Div. 71. § 89 LANDLORD'S OBLIGATIONS TOWARDS TENANT. (J29 of such passages or stairway by the tenants, and by other persons whose relations to the tenants involve their use of these ap- proaches in order to obtain access to the rooms or apartments demised, and he is accordingly regarded as liable, both to the* tenant and such other persons,**^ for any injury caused by his failure to exercise reasonable care to keep such parts of the build- ing in proper repair,343 as is any owner of land or of structures »*2As to the particular classes of man v. Spencer (Ind.) 49 N. E. 9, persons to whom, besides the tenant, a view in accordance with the he owes the obligation to keep such weight of authority is apparently places in repair, see post, § 98. adopted, as it explicitly is In La 3*3 See Gillvon v. Reilly, 50 N. J. Plante v. La Zear, 31 Ind. App. 433, Law, 26, 11 Atl. 481; Lindsgy v. 68 N. E. 312. And so, in Missouri, Leighton, 150 Mass. 285, 22 N. B. 901, the dictum in Ward v. Fagin, 101 15 Am. St. Rep. 199; Dean v. Murphy, Mo. 669, 14 S. W. 738, 20 Am. St. ]69 Mass. 413, 48 N. E. 283; Coupe v. Rep. 650, 10 L. R. A. 147, adverse Piatt, 172 Mass. 458, 52 N. E. 526, to such responsibility, is evidently 70 Am. St. Rep. 293; Sawyer v. Mc- overruled by McGinley v. Alliance Gillicuddy, 81 Me. 318, 17 Atl, 124, 10 Trust Co., 168 Mo. 257, 66 S. W. 153, Am. St. Rep. 260, 3 L. R. A. 458; 56 L. R. A. 334. Humphrey v. Wait, Barman v. Spencer (Ind.) 49 N. E. 22 U. C. C. P. 580, is not in accord 9; Pell V. Reinhart, 127 N. Y. 381, with the rule as stated in the text. 27 N. E. 1077, 12 L. R. A. 843 (hole Cole v. McKey, 66 Wis. 500, 29 N. W. in stairway carpet) ; DoUard v. Rob- 279, 57 Am. Rep. 293, refers to this erts, 130 N. Y. 269, 29 N. B. IM, case and also to the earlier Indiana 14 L. R. A. 238 (defective ceiling, case, but does not either adopt or fall of plaster) ; Wilber v. Follans- repudiate their view. The later bee, 97 Wis. 577, 72 N. W. 741, 73 N. case of Wilber v. Follansbee, 97 W. 559; La Plante v. La Zear, 31 Wis. 577, 72 N. W. 741, 73 N. W. Ind. App. 433, 68N. E. 312; Shoninger 559, approves the rule ordinarily Co. V. Mann, 219 111. 242, 76 N. E. adopted. 354, 3 L. R. A. (N. S.) 1097 (un- In Schwandt v. Metzger Linseed guarded elevator shaft) ; Burke v. Oil Co., 93 111. App. 365, the lia- Hulett, 216 111. 545, 75 N. E. 240; bility of the landlord is based, in Lewin v. Pauli, 19 Pa. Super. Ct. part at least, upon his covenant to 447; Siggins v. McGill, 72 N. J. Law, keep the premises in repair, and 263, 62 Atl. 411, 111 Am. St. Rep. upon his promise to repair the par- 666; Miller v. Hancock [1893] 2 Q. ticular defect in the common stair- B. 177; Johnson v. Lembeck & Betz way which caused the accident. Brew. Co. (N. J. Law) 68 Atl. 85. The former could, however, not af- In Purcell v. English, 86 Ind. 34, feet his liability for such a defect 44 Am. Rep. 255, there is a dictum not in or upon the leased premises, to the effect that the landlord is not In Lindsey v. Leighton, 150 Mass. responsible for the condition of a 285, 22 N. E. 901, 15 Am. St. Rep. common passageway; but in Bar- 199, one was held liable for such a 630 PHYSICAL, CONDITIONS. 89 thereon as regards persons whom he expressly or impliedly invites to enter thereon.^** And he is obviously liable for negligent acts on his own part rendering the approaches unsafe, as when he on his servants leave hatchways or elevator shafts therein unguard- ed.s*B On what may be regarded as the same principle, that the land- lord is bound to keep the common approaches safe, the lessor of several mill sites has been held liable for injuries caused bj de- fects in a bridge leading to such mill sites, which was built and maintained by him.s^s The same principle will render one who leases separate buildings to different persons liable for negligence in failing to keep in repair a pathway or approach common to all the buildings.^'*'' It has been decided, however, that in the case of what is sometimes known as a "double house," that is, a building constituting two semi-detached houses, a flight of steps extending in front of each house or "tenement" as a means of defect in a common stairway, al- though not the owner but merely the husband of the owner, he hav- ing assumed to be the owner and conducted himself as such both be- fore and after the accident, and having contracted with the tenaut as if the owner. The original lessor is obviously not liable for injuries to one of sev- eral subtenants of his lessee, caused by defects in a passageway used in common by such sublessees, if he has leased the building as a whole, since he has no control of the com- mon passageway. Marley v. Wheel- wright, 172 Mass. 530, 52 N. R. 1066. In such case the lessee of the build- in, as having control of the passage- way, is the person liable. Shonin- ger Co. v. Mann, 219 111. 242, 76 N. E. 354. 3** As to the general duty of the occupant of land, inviting another, either expressly or by implication, to come upon the premises, to exer- cise reasonable diligence to have them safe, see Pollock, Torts (6th Ed.) 489; 2 Jaggard, Torts, 889; 2 Shearman & Redfield, Neg. §§ 701- 706. Compare ante, § 86 d. 3*5 Gordon v. Cummings, 152 Mass. 513, 25 N. E. 978, 9 L. R. A. 640, 2S Am. St. Rep. 846; Wilber v. Pollans- bee, 97 Wis. 577, 72 N. W. 741; Tousey v. Roberts, 114 N. Y. 312, 2t N. E. 399, 11 Am. St. Rep. 655; O'Dwyer v. O'Brien, 13 App. Div. 570, 43 N. Y. Supp. 815. 34<5 Nash V. Minneapolis Mill. Co., 24 Minn. 5*1, 31 Am. Rep. 349. 347 "When houses are rented for dwellings, which can only be reached by the use of a common passage, the necessity of such use for the beneficial enjoyment of the thing demised establishes a right to such use and imposes an obli- gation uiwn the landlord to tafee reasonable care to have and main- tain the passage safe for such use." Gleason v. Boehm, 58 N. J. Law, 475, 34 Atl. 886, 32 L. R. A. 645. See Curtis V. Kiley, 153 Mass. 123, 26 N. E. 421. § 89 LANDLORD'S OBLIGATIONS TOWARDS TENANT. 631 access to both is a part of the two houses, half being included in the lease of each house, and is not a common approach under the control of the landlord of the two houses, for the purpose of this rule.348 In such case of a common passageway or other approach, there is, it seems, an easement therein in favor of each tenant, arising by implied grant, as appurtenant to the premises leased to him,3*» but the ordinary rule that the owner of the dominant tenement, and not of the servient tenement^^o must, as between themselves, make the repairs necessary for the enjoyment of the easement, is excluded by the special circumstances of the case,^^! and the theory would seem to be that, all obligation on the part of the tenant to make repairs being thus excluded, the liability of the landlord is that, as previously indicated, of a landowner expressly or impliedly inviting others to come upon the land for their mu- tual advantage.*^2 It has been decided that the obligation on the landlord of an of- fice building to keep the passageways and approaches in a reason- ably safe and suitable condition did not extend so far as to render him liable because he kept a certain entrance door locked over Sunday and thereby rendered it impossible for the tenant to re- move his furniture so as to prevent its destruction by fire.^^* Un- der some circumstances, however, the landlord would no doubt be liable for injuries caused by failure to keep a door unlocked so as to enable a tenant to escape or to rescue his possessions from a fire.^^* b. Places other than approaches. In England, while the 3*8 Kearlnes v. Cullen, 183 Mass. ciple of Smith v. London & St. Kath- 298, 67 N. E. 243. S«e, also. Miles arine Docks Co., L. R. 3 C. P. 326, V. Janvrin, 196 Mass. 431, 82 N. E. and also Mr. Pollock's statement of 708, 124 Am. St. Rep. 575. these and similar cases (Pollock, 349 Miller V. Hancock [1893] 2 Q. Torts [6th Ed.] 493). See, als'o, B. 177. See post, § 128. Sawyer v. McGillicuddy, 81 Me. 318, 350 Goddard, Easements (5th Ed.) 17 Atl. 124, 3 L. R. A. 458, 10 Am. 21, 374; Gale, Easements (7th Ed.) St. Rep. 260; Gillvon v. Reilly, 50 451 et seq.; ] Tiffany, Real Prop. N. J. Law, 26, 11 Atl. 481. § 324. 353Whitcomb v. Mason, 102 Md. 351 Miller v. Hancock [1893] 2 Q. 275, 62 Atl. 749, 4 L. R. A. (N. S.) B. 177. 565. 352 See Miller r. Hancock [1893] 2 ss* See Sewell v. Moore, 166 Pa. Q. B. 177, supra, adopting the prin- 570, 31 Atl. 370. 632 PHYSICAL CONDITIONS. § 89 landlord's liability for injuries caused by defects in common pas- sageways and other necessary approaches has been recognized, he has been regarded as not liable by reason of defects in places which are merely open, by permission of the laJidlord, for use by all the tenants and their families and employees, if they so desire, but the use of which is not necessary to the enjoyment of the premises.^5^ In this country, however, the landlord has been re- garded as under an obligation to repair such parts of the building or places connected therewith, although the tenants or their fam- ilies are under no necessity of making use thereof for the purpose of access to their respective tenements. Accordingly he has been held liable for defects in a yard or platform appurtenant to a building, which was open to use by the various tenants of the building as a place for drying clothes, as a playground for their children, or for other purposes,^^®' ^st and for defects in the ap- proaches to such a place,-'5* and also for defects in a cellar, or in the stairs leading thereto, open to use by the various tenants,^^® as well as for defects in a watercloset open for their use.^^** c. No liability apart from negligence. The landlord is thus liable for injuries caused by defects in a passage, stairway, or other place used in common by the tenants, only if guilty of negli- gence, and when he has no actual notice of the defect, and the defect is of such recent origin or is of such a character that he could not be expected, in the exercise of ordinary diligence, to be aware thereof, he is not liable for resulting injuries.^^i But 355 ivay V. Hedges, 9 Q. B, Div. 80. 471. See Mills' Adm'r v. Cavanaugh, 356, 367 Garrett v. Somerville, 98 29 Ky. Law Rep. 685, 94 S. W. 651. App. Div. 206, 90 N. Y. Supp. 705; 358 Looney v. McLean, 129 Mass, Canavan v. Stuyvesant, 7 Misc. 113, 33, 37 Am. Rep. 295; Clarke v. 27 N. Y. Supp. 413 ; Schmidt v. Cook, Welsh, 93 App. Div. 393, 87 N. Y. 12 Misc. 449, 33 N. Y. Supp. 624; Supp. 697. Rouillon V. Wilson, 29 App. Div. 307, 359 Donahue v. Kendall, 50 N. Y, 51 N. Y. Supp. 430; Karlson v. Super. Ct. (18 Jones & S.) 386; Healy, 38 App. Div. 486, 56 N. Y. Feinstein v. Jacobs, 15 Misc. 474, S" Supp. 361; Moynlhan v. Allyn, 162 N. Y. Supp. 345. Mass. 270, 38 N. E. 497; Wilcox v. seoHess v. Hinkson's Adm'r, 29 Zane, 167 Mass. 302, 45 N. E. 923; Ky. Law Rep. 762, 96 S. W. 436. Wesener v. Smith, 89 App. Div. 211, 36i Gillvon v. Reilly, 50 N. J. Law, 85 N. Y. Supp. 837; Widing v. Penn- 26, 11 Atl. 481; Handyside v. Powers, sylvania Mut. Life Ins. Co., 95 Minn. 145 Mass. 123, 13 N. E. 462; Bar- 279, 104 N. W. 239, 111 Am. St. Rep. man v. Spencer (Ind.) 49 N. B. 9; § 89 LANDLORD'S OBLIGATIONS TOWARDS TENANT. 533 notice to the landlord's agent is equivalent, for this purpose, to notice to the landlord.sea And the fact that he had no actual notice of the defect is uo defense if he should, in the exercise of reasonable diligence, have had such notice.s*^ It has been said that the landlord is not liable for his failure to remove "obstructions arising from natural causes, or the acts of other persons, and not constituting a defect in the passageway itself" and that "he would be liable for negligently leaving a coal scuttle in a dangerous position, but not for not removing one so placed by another person, "^s* That the landlord is under no obligation to remove an object negligently placed by another in a common passageway or approach, of which he is fully aware, seems, however, most doubtful. To hold him liable for injuries to one caused by tripping over a nail in an unlighted passageway or a hole in a stair carpet, and not liable for injuries caused by tripping over a log placed in the passageway by a third person, of which he has been informed, involves a rather subtle distinc- Black V. Maitland, 11 App. Div. 188, Rep. 513, 27 N. Y. Supp. 413; Dol- 42 N. Y. Supp. 653; Flood v. Huff, lard v. Roberts, 130 N. Y. 269, 29 N. 29 Misc. 351, 60 N. Y. Supp. 317; E. 104, 14 L. R. A. 238; Widing v. McGinley v. Alliance Trust Co., 168 Pennsylvania Mut. Life Ins. Co., 95 Mo. 257, 66 S. W. 153, 56 L. R. A. Minn. 279, 104 N. W. 239, 111 Am. 334; Jucht v. Behrens, 26 N. Y. St. St. Rep. 471. Rep. 690, 7 N. Y. Supp. 195; Schwartz sss Lindsey v. Leighton, 150 Mass. V. Monday, 49 Misc. 527, 97 N. Y. 285, 22 N. E. 90-1, 15 Am. St. Rep. Supp, 978; Boss v. Jarmulowsky, 81 199; Leydecker v. Brintnall, 158 App. Div. 577, 81 N. Y. Supp. Mass. 292, 33 N. E. 399; Udden v. 400; Idel v. Mitchell, 158 N. Y. O'Reilly, 180 Mo. 650, 79 S. W. 691; 134, 52 N. E. 740; Peinsteln Nadel v. Pichten, 34 App. Div. 188, v, Jacobs, 15 Misc. 474, 37 N. 54 N. Y. Supp. 551; Olson v. Schultz, Y. Supp. 345; Flood v. Huff, 29 Misc. 67 Minn. 494, 70 N. W. 779, 64 Am. 351, 60 N. Y. Supp. 517; McCabe v. St. Rep. 437. Castens, 11 Misc. 272, 32 N. Y. Supp. In Rouillon v. Wilson, 29 App. 249; Lynch v. Swan, 167 Mass. 510, Div. 307, 51 N. Y. Supp. 430, it was 46 N. E. 51 ; Vorrath v. Burke, 63 held that notice of a defect in a slat N. J. Law, 188, 42 Atl. 838; Mer- platform on the roof resulting from chants' Loan & Trust Co. v. Boucher, a cause which would naturally im- 115 111. App. 101; Shoninger Co. v. pair the whole of it If it impaired Mann, 219 111. 242, 76 N. E. 354, 3 L. any part put the landlord on in- R. A. (N. S.) 1097. quiry as to the condition of the 362 Evers v. Weil, 43 N. Y. St. Rep. whole platform. 336, 17 N. Y. Sup'p. 29; Canavan v, seiWatkins v. Goodall, 138 Mass. Stuyvesant, 7 Misc. 113, 57 N. Y. St. 533. 634 PHYSICAL CONDITIONS. § 89 tion. In the one case as in the other, it seems, there is a danger- ous condition which it is his duty to remove.'"'' d. Conditions existing at the time of demise. The landlord is under no obligation to the tenant to change the mode of con- struction of the passageways, stairs, or platforms, used in common by the tenants, and to construct them upon a different plan, in order to make them more safe, provided the mode of construction was apparent at the time of the letting.^ss His obligation has been said to be merely to keep such a place ' ' in such condition as it was in, or purported to be in, at the time of the letting, ' ' mean- ing thereby such condition as it would appear to be in to a person of ordinary observation, and having reference to the obvious condition of things existing at the time of the letting,'®'^ Accord- ingly, it has been held, a landlord is not liable for injuries caused by the rotten condition of a platform which was evidently in that condition at the time of the lease.^^s By a later case in the same jurisdiction it is apparently adjudged that the landlord is not lia- ble even for a secret defect existing at the time of the demise, the existence of which he might have discovered, provided only it was not actually known to him,'"^ this view being based on the 365 Wesener v. Smith, 89 App. Div. 735; Lindsey v. Leighton, 150 Mass. 211, 85 N. Y. Supp. 837. is to the 285, 22 N. B. 901, 15 Am. St. Rep. 199. effect that the landlord is liable for aes Moynihan v. Allyn, 162 Mass. obstructions created by third per- 270, 38 N. E. 497. sons. And see Boss v. Jarmulowsky, 369 O'Malley v. Twenty-Five Asso- 81 App. Div. 577, 81 N. Y. Supp. 400, ciates, 178 Mass. 555, 60 N. E. 387, where this seems to be conceded. where it is said: "The suggestion 366 Woods v. Naumkeag Steam of a stricter rule in Lynch v. Swan, Cotton Co., 134 Mass. 357, 45 Am. 167 Mass. 510, 46 N. E. 51, is merely Rep. 344; Lynch v. Swan, 167 Mass. a dictum, and is not sustained by 510, 46 N. E. 51; O'Malley v. Twenty- the cases cited, which are cases Five Associates, 178 Mass. 555, 60 N. dealing with knowledge of defects B. 387; Humphrey v. Wait, 22 XJ. C. possibly arising after the letting. Rep. C. P. 580; Rogers v. Sorell, 14 The duty to use reasonable care to Man. Rep. 450 (unglazed fanlight keep a staircase safe, up to the over door at end of hall by which standard of the date of the lease, water entered). might not be met by proof of Ignor- 367 Andrews v. Williamson, 193 ance that the staircase had decayed" Mass. 92, 78 N. E. 737, 118 Am. St. (citing Lindsey v. Leighton, 150 Rep. 452. And see Moynihan v. Allyn, Mass. 285, 22 N. E. 901, 15 Am. St. 162 Mass. 270, 38 N. E. 497; Quinn Rep. 199; Leydecker v. Brintnall, V. Perham, 151 Mass. 162, 23 N. E. 158 Mass. 292, 33 N. E. 399; Wll- § 89 LANDLORD'S OBLIGATIONS TOWARDS TENANT. 635 theory that there is no requirement of diligence in discovering defects in the leased premises themselves,37o and that "it would be anomalous to apply one rule to the principal object demised and another and severer one to something incidently annexed." It might, however, be suggested in favor of a different view that, conceding that the lessor is under no obligation to discover and to reveal to an intending lessee defects in the leased premises them- selves, which the latter is supposed to examine for himself,^''! he might well be charged with a higher degree of diligence as regards the condition of parts of the premises which do not pass out of his own control. An intending lessee of an apartment should not, it seems, be required to inspect the various passage- ways and stairways leading to the appartment with the same par- ticularity as he is expected to use in examining the apartment itself. e. Obligation to light approaches. The landlord is under no obligation, in the absence of statute or contract to that effect, to light common passages, stairways or other approaches,* ^2 unless perhaps there is special danger from unusual construction or by reason of traps and pitfalls.-'''^* In New York City it is required by statute that all public hallways in tenement houses shall be lighted*"* and failure to comply with this law raises at least a presumption of negligence on the landlord's part.*^^ cox V. Jane, 167 Mass. 302, 45 N. E. Atl. 847; Brugher v. Buchtenkirch, 923). 167 N. Y. 153, 60 N. E. 420. In the 370 See ante, § 86 d. former case it is said that Marwedel 3" See ante, § 86 a. v. C!ook, 154 Mass. 235, 28 N. E. 140, 372 Gleason v. Boehm, 58 N. J. where a majority of the court de- Law, 475, 34 Atl. 886, 32 L. R. A. cided that the jury might find that it 645; Hllsenbeck v. Guhring, 131 N. was negligence to fail to light stairs Y. 674, 30 N. E. 580; Brugher v. of an office building, may perhaps he Buchtenkirch, 167 N. Y. 153, 60 N. explained on this theory. And see B. 420; Dean v. Murphy, 169 Mass. Burner v. Higman & Skinner Co., 413, 48 N. E. 283; Muller v. Minken, 127 Iowa, 580, 103 N. W. 802, post, 5 Misc. 444, 26 N. Y. Supp. 801; note 507. Brancato v. Kors, 36 Misc. 776, 74 374 Laws 1901, c. 334, § 80; Laws N. Y. Supp. 891. O'Sulllvan v. Nor- 1903, c. 179. See, also, the prior wood, 8 N. Y. St. Rep. 388, to the laws. Laws 1895, c. 567, § 9; Laws contrary, is expressly disapproved in 1897, c. 378, § 1320. Muller V. Minken, 5 Misc. 444, 26 376 ziegler v. Brennan, 75 App. N. Y. Supp. 801. Div. 584, 78 N. Y. Supp. 342; Licht- 378Capen v. Hall, 21 R. I. 364, 43 man v. Rose, J 10 N. Y. Supp. 935, 636 PHYSICAL CONDITIONS. § 89 f. Io3 and snow on approaches. The landlord has been held in several cases not to be liable for injuries caused to a tenant (or other person rightfully on the premises) by slipping on snow or ice on a common stair or passageway, on the ground that he is not bound to clear away the snow or ice,^''® and this though the construction of the passage or steps is such that an accumulation of snow or ice tends to take place.^^^ It is said that the landlord owes to the tenant the same duty in this regard as a municipality owes to travelers as regards sidewalks,^ '^® and this is, in most states, to remove ice and snow which has formed into mounds and ridges, but not ice or snow merely rendering the surface slip- pery.379 jje has, however, been held liable for injuries to the tenant caused by slipping on ice which accumulated on the pas- sageway and steps, owing to leakage from a break in a pipe con- nected with the roof of the building, he being in such case re- garded as the active agent in producing the dangerous condi- tion.380 g. Negligence of independent contractor. Since the land- lord is under a legal obligation to exercise diligence to keep the common approaches, or other parts of the building used in com- mon, in safe condition for use, he cannot, it would seem, relieve himself from liability for failure so to do by asserting that the defects or dangers therein were caused by an independent con- See Brown V. Wittner, 43 App. Div. sia See 15 Am. & Eng. Bnc. Law 135, 59 N. y. Supp. 385; Lendle v. (2d Ed.) 447. Robinson, 53 App. Div. 140, 65 N. ssoWatkins v. Goodall, 138 Mass. Y. Supp. 894; Aldrich v. Lane, 110 533. N. Y. Supp. 897; Gilliek v. Jackson, In Hoag v. Williamsburgh Sav, 40 Misc. 627, 83 N. Y. Supp. 29. Bank, 75 App. Div. 306, 78 N. Y. 376Purcell v. English, 86 Ind. 34; Supp. 141, it was held that where Harkin v. Crumble, 20 Misc. 568, 46 the tenant slipped on ice formed N, Y. Supp. 453 (injury to guest of from water dripping from a defec- tenant) ; Little v. Wirth, 6 Misc. 301, tive closet, the landlord's liability 26 N. Y. Supp. 1110. See Lumley v. was to be determined by the con- Backus Mfg. Co., 20 C. C. A. 1, 73 sideration of what was reasonable Fed. 767. diligence in removing the defect in 377 Woods V. Naumkeag Steam the closet, so as not to prevent leak- Cotton Co., 134 Mass. 357, 44 Am. ing into the hall, which was kept at Rep. 262 note, 45 Am. Rep. 344. a freezing temperature, and not by 378 Harkin v. Crumble, 20 Misc. the diligence required in removing 568, 46 N. Y. Supp. 453; Watkins v. the ice. Goodall, 138 Mass. 533. § 89 LANDLORD'S OBLIGATIONS TOWARDS TENANT. 537 tractor, employed by him to make repairs, or were the result of the failure of such contractor to make the repairs.*^^ His posi- tion in this regard would appear to be the same as that of a mu- nicipality, which, as bound to keep the highways in repair, is li- able for negligence in failing to repair defects, in spite of the employment of an independent contractor.**^ h. Contributory negligence of tenant. The tenant or other person injured by defects in such passageways or other places cannot recover if he was guilty of contributory negligence.*** But the mere fact that the person injured used particular parts of the building in the landlord's control, though knowing of defects therein, does not, it has been decided, necessarily render him guil- ty of contributory negligence, this being a question for the jury,*** 381 Brennan v. Ellis, 70 Hun, 472, ground on which to base the deci- 24 N. Y. Supp. 426. In Curtis v. sion. The same may be said of Kiley, 153 Mass. 123, 26 N. B. 421, Boss v. Jarmulowsky, 81 App. Dlv. the decision appears to be based 577, 81 N. Y. Supp. 400. partly on this theory and partly on ssa See 16 Am. & Bng. Enc. Law the theory that the work was in its (2d Ed.) 197. nature likely to create a dangerous sss Gallagher v. Button, 73 Conn, condition. In Robblns v. Atkins, 172, 46 Atl. 819 ; Town v. Armstrong, 168 Mass. 45, 46 N. E. 425, it was 75 Mich. 580, 42 N. W. 983; Mospens held that the landlord was liable v. Konz, 32 Ky. Law Rep. 80, lOB for injury caused by the removal, by S. W. 381; Mullen v. Rainear, 45 N. an independent contractor employed J. Law, 520; Vorrath v. Burke, 63 to deepen the cellar, of earth sup- N. J. Law, 188, 42 Atl. 838 ; Gleason porting a stairway if he, the land- v. Boehm, 58 N. J. Law, 475, 34 Atl. lord, had reasonable cause to be- 886, 32 L. R. A. 645 (injury to ten- lieve that this would be the effect ant's guest) ; McCarthy v. Foster, of the work contracted for. This is 156 Mass. 511, 31 N. E. 385; Free- in accordance with a well recognized man v. Hunnewell, 163 Mass. 210, 39 exception to the exemption of the N. B. 1012. employer from liability for the neg- 384 Bollard v. Roberts, 130 N. Y. ligence of a contractor. Ante, at 269, 29 N. E. 104, 14 L. R. A. 238; note 273. ~ Peil v. Reinhart, 127 N. Y. 381, 27 In Mahon v. Burns, 13 Misc. 19, 34 N. E. 1077, 12 L. R. A. 843; Collier N. Y. Supp. 91, the landlord was re- v. Collins, 58 App. Div. 550, 69 N. lieved from liability partly on the Y. Supp. 94; Karlson v. Healy, 38 ■ground that the obstruction was App. Div. 486, 56 N. Y. Supp. 361; caused by an independent contrac- Keating v. Mott, 92 App. Div. 156, 86 tor and partly on the ground that he N. Y. Supp. 1041; Looney v. McLean, was not chargeable with notice of 129 Mass. 33, 37 Am. Rep. 295; Whit- the obstruction owing to the brevity taker v. Inhabitants of West Boyl- of its existence before the accident, ston, 97 Mass. 273. The latter seems the preferable 638 PHYSICAL CONDITIONS. § 89 and such has been held to be the case though he was without a light to reveal the defects.^^^ In other cases, however, it has apparently been decided that the use by the tenant of a stairway which he knew to be unsafe prevents recovery by hini.^*^ i. Improper user by tenant. The landlord is, it seems, liable for injuries to the tenant, or to a member of the tenant's family or to one visiting the tenant, caused by defects in a passage, stair- way, or other place used in common by the various tenants, only when the person injured was at the time making a proper use of such part of the building, or at least such use as the landlord could anticipate would be made of it, and whether such use of it was being made has been regarded as a question for the jury.**'^ So it has been recognized that if the tenants of a building are given the right to use the roof for certain restricted purposes, a tenant or a member of a tenant's family cannot recover for injuries re- ceived while using it for another purpose.^^^ And so, a fire escape being intended for a particular purpose, there can be no recovery for injuries received while utilizing it for another purpose.^^* And on the same theory a right of recovery for injuries caused by 386 Kenney v. Rhinelander, 163 N. when a grown member of a tenant's Y. 576, 57 N. E. 1114, afg. 28 App. family was injured while witness- Div. 246, 50 N. Y. Supp. 1088; Lendle ing a display of fireworks from the V. Robinson, 53 App. Div. 140, 65 N. roof of the building, it was for the Y. Supp. 894; Lee v. Ingraham, 106 jury whether he had a right to be App. Div. 167, 94 N. Y. Supp. 284. upon the roof, the plaintiff testlfy- 386 Town V. Armstrong, 75 Mich, ing that the roof was ordinarily 580, 42 N. W. 983; McGinn v. French, used for purposes of recreation 107 Wis. 54, 82 N. W. 724. And see and even for sleeping, and the O'Dwyer v. O'Brien, 13 App. Div. defendant testifying that the right 570, 43 N. Y. Supp. 815, where, was given to the tenants to use the knowing that a walk was defective, roof only for drying clothes, plaintiff failed to look. asg See McAlpin v. Powell, 70 N. Y. 387 In McGinley v. Alliance Trust 126, 26 Am. Rep. 555, where it was Co., 168 Mo. 257, 66 S. W. 153, 56 L. held that the landlord was under no R. A. 334, it was held to be a question obligation to keep the platform of for the jury whether the children of a fire escape safe for the child of a a tenant who were sitting on a com- tenant going thereon for his own mon stairway eating their lunch amusement; and that he is not ' were making such use thereof as the bound to keep a fire escape safe for landlord had a right to anticipate. the tenant to use in drying clothes is 388 In Wholey v. Kane, 16 App. decided in Mayer v. Laux, 18 Misc. Div. 166, 78 N. Y. St. Rep. 649, 44 671, 43 N. Y. Supp. 743. N. Y. Supp. 649, it was held that § 89 LANDLORD'S OBLIGATIONS TOWARDS TENANT. 639 the breaking of the railing upon a balcony was denied, when the balcony was intended merely as a thoroughfare, and the breakage was caused by the action of the tenant in leaning against it while hanging clothes.s^" j. Places not used in common. It has been apparently de- cided in several cases that though the landlord owes to his ten- ants the duty to keep the common passageways, stairs, platforms and the like in safe condition for the use of the various tenants and their guests, there is no analogous obligation in the case of a passageway or platform, the use of which is not common to two or more tenants, but which one tenant alone has the right to use, although such passageway or platform is not a part of the leased premises, but is retained by the landlord, and the tenant is given merely the right to make use thereof.^^i In these cases, appar- ently, the strict rule of law was applied, that the owner of a tene- ment subject to an easement owes no duty to repair the tenement for the benefit of the owner of the easement, but that he himself must make the repairs,^® ^ a rule which the courts have refused to apply in the case of places used in common by various tenants, on the ground apparently that there is a necessary implication S90 Walsh V. Frey, 116 App. Div. does not absolutely prevent one from 527, 101 N. Y. Supp. 774. Compare falling tnrough it because of a, sky- Clarke V. Welsh, 93 App. Div. 393. 87 light?" Miller v. Woodhead, 104 N. N. Y. Supp. 697. Y. 471, 11 N. B. 57. In other words. In Glain v. Sparandeo, 119 La. the landlord owes no duty to keep 339, 44 So. 120, it was held that a a roof intended for drying clothes in tenant injured by the giving way of condition for falling on. a balcony by reason of the pressure sai O'Dwyer v. O'Brien, 13 App. of a rope "run" over it, by which a Div. 570, 43 N. Y. Supp. 815; Culver heavy weight was being lowered, v. Kingsley, 78 111. App. 540 (plat- could not recover. form used by tenant). So in Where a tenant has the right to Mellen v. Morrill, 126 Mass. 545, 30 use a roof just below her windows for Am. Rep. 695, a case of injury to a drying clothes, the landlord owes no third person using a walk leading duty to keep a skylight in the roof to the leased premises, it was held protected by a grating so that one that the walk was under the lessee's falling out of a window would not and not the lessor's control, and that fall through the skylight. "If the consequently the latter was not defendant owes no duty to build a liable. roof or wall or any other structure aDzQoddard, Basements (5th Ed.) under these windows to catch peo- 21, 374; Gale, Easements (7th Ed.) pie who fall out of them, how is his 451 et seq.; 1 Tiffany, Real Prop, liability increased when he builds § 324. a structure with a roof but which 640 PHYSICAL CONDmONS. J 89 otherwise, under such circumstances.*** But the landlord is liable, it seems, for any active misfeasance on his part rendering a pass- age or platform, which is subject to the use of a single tenant and his family or guests, unsafe for use.*** It might be questioned, it is conceived, whether the lessor, retaining possession and control of an approach to a single tenement, necessary for access thereto, should not be under the same duty of exercising diligence to keep it safe as in the case of an approach to several tenements, since he invites its use by the tenant and the tenant 's visitors. As regards an approach or platform on a part of the land which is to be regarded as included in the lease, the landlord obviously owes no duty to the tenant or persons claiming under him, greater than that which he owes as to any other part of the leased prem- ises. There have been occasional decisions as to whether the par- ticular place in which the accident occurred was within the leased premises so as to exempt the landlord from liability.*®'' 393 See Miller v. Hancock [1893] 2 Camp v. Wood, 76 N. Y. 92, 32 Am. Q. B. 177; Sawyer v. McGlllicuddy. Rep. 282, the owner of an assembly 81 Me. 318, 17 Atl. 124, 10 Am. St. hall who had leased it to another Rep. 260, 3 L. R. A. 458. was held liable for leaving open, on 38* So in Brunker v. Cummins, 133 the passage leading to the hall, a Ind. 443, 32 N. E. 732, one who had door which opened on an awning leased a part of his building for use as merely, through which a guest at the a lodge room, left on a walk, which hall passed and consequently felt was the ordinary approach to such into the street. See, also, Edwards lodge room, a barrel over which one v. New York & H. R. Co., 98 N. Y. intending to go to the lodge room 255, 50 Am. Rep. 659; Cole v. McKey, fell, and the lessor was held liable. 66 Wis. 500, 29 N. W. 279, 57 Am. The court says: "Where an owner Rep. 293. leases property to a tenant, and 305 a step leading to a semi-de- licenses the tenant, or those having tached house, though but a continu- rights under the tenant, to use a way ation of a step leading into the ad- of ingress and egress to the demised joining house, was regarded as part premises, he has no right, by ob- of the house into which it led. structing the way, to make its use Kearines v. Cullen, 183 Mass. 298, dangerous to the tenant or those hav- 67 N. E. 243. And the same view ing rights under him. In Totten v was taken of an approach leading Phipps, 52 N. Y. 354, a landlord was from the sidewalk to a house, though held liable for injury to a tenant of there were adjoining houses owned part of the building caused by leav- by the same landlord. Ward v. ing. open a hatchway in a hall which Hinkleman, 37 Wash. 375, 79 Pac. led to such part and also to a part 956. And see Mellen v. Morrill, 126 retained by the landlord. And in Mass. 545. Likewise a platform con- § 90 !LANDLORD'S OBLIGATIONS TOWARDS TENANT. 641 § 90. Adjoining buildings and grounds. We have before referred to various decisions bearing upon the question whether the covenant for quiet enjoyment covers acts by the landlord upon premises owned by him, adjoining those leased.s^s Apart from the liability under such a covenant, so far as it may exist in the particular ease, the landlord may, prima facie, make such use of adjoin- ing premises as he may desire, although such use to some extent interferes with the tenant's enjoyment of the premises leased. The tenant may have, however, as appurtenant to the leased premises, an easement in adjoining property, giving him a right to make use thereof for a certain purpose, or excluding a particular use thereof by another,**'^ and such easement is obvi- ously enforcible against such property in the hands of the land- lord as well as in the hands of another, the grant of such an ease- ment being indeed quite frequently implied from the fact that the lessor is the owner of the adjoining property at the time of the lease.^^s The landlord, as the owner of adjoining property, is also, as is any other owner of such property, bound to refrain from the maintenance of a nuisance thereon, and is also liable for any injury to the tenant of the leased premises caused by neg- ligence in the course of his utilization of the adjoining property.^** C. As TO Appliances. § 91. Appliances under landlord's control. The landlord is liable for injuries to a tenant, as to any other nected with an apartment, which 399 See Smith v. Faxon, 156 Mass. was used by the tenant of the apart- 589, 31 N. B. 687. ment for storing fuel, and on which In New York, it having been de- was located the water closet, was re- aided in Ryan v. New York Cent. R. garded as a part of the apartment Co., 35 N. Y. 210, 91 Am. Dec. 49, leased, though it was connected by that the owner of a building which stairways with the platforms belong- takes fire through his negligence Is ing to other apartments and with not liable for the consequent de- the yard. Phelan v. Fitzpatrick, 188 structlon of another building, it was Mass. 237, 74 N. E. 326, 108 Am. St. decided in H. L. Judd & Co. v. Cush- Rep. 469. ing, 50 Hun, 181, 22 Abb. N. C. 358, 2 396 See ante, § 79 d (2). N. Y. Supp. 836, that the owner of 397 See post, §§ 131-135. a building is liable to a tenant there- 3»8See post, § 128. In who is injured by Are resulting L. and Ten. 41. 642 PHYSICAL CONDITIONS. § 91 person rightfully on the premises,*"" caused by the former's neg- lect to remedy defects in, or by his improper management of, ap- pliances of which he retains control. Accordingly he has been held liable for injuries caused by leakage from water pipes or other plumbing attachments in his control,*"^ or by overflow from such attaehments,**'^ for injuries from defects in, or unskillful management of, a heating apparatus,*''^ an elevator for carrying from the landlord's negligence in the C. Lewis Co. v. Metropolitan Realty repairing of an adjoining building Co., 112 App. Div. 385, 98 N. Y. Supp. owned by him only if the two build- 391; Id., 189 N. Y. 534, 82 N. E. 1126 ings are used as a single building. (overflow from water tank); James *oo In this section not only cases Sheehan & Co. v. Barberis, 41 Wash, are cited in which the person seek- ^^l, 84 Pac. 607. ing to recover for injuries was the ■^"^In McNichol v. Malcolm, 39 tenant, but also a number in which *^^^- ^^P- ^^- 265, a landlord was a member of his family or other per- ^^^^ liable for the act of his care son rightfully on the premises was taker in turning on the steam with- the complaining party. As stated °^^ ^'"®*- seeing that that the radi- post (§§ 98-100) the obligations of ^^or in plaintiff's apartment was the landlord are the same in both dosed, the steam having been turned cases. off for repairs. And in Bryant v. «i)i Priest V. Nichols, 116 Mass. 401 Carr, 52 Misc. 1,55, 101 N. Y. Supp. (leakage from landlord's engine ^^^' tlie landlord was held liable for pumps and waste pipes on the upper ^he escape of steam from a radiator floor) ; Indianapolis Abattoir Co. v. ^^ the course of repairs thereon. Temperly, 159 Ind. 651, 64 N. E. 906, In Railton v. Taylor, 20 R. I. 279, 95 Am. St. Rep. 330 (leaking gas 38 Atl. 980, 39 L. R. A. 246, it was pipes) ; Levine v. Baldwin, 87 App. Iield that •«rhere the lease provided Div. 150, 84 N. Y. Supp. 92 (leaking that the property of the lessee on water pipe) ; Rubenstein v. Hudson, the premises was to be at the risk of 86 N. Y. Supp. 750 (ditto); Levin v. the lessee in regard to damage by Habicht, 45 Misc. 381, 90 N. Y. Supp. fire, water, "or in any other way or 349 (ditto) ; Kecoughtan Lodge No. manner," the words in quotations 29 V. Steiner, 106 Va. 589, 56 S. B. were restricted by the particular 569 (bursting of water pipe). words "fire" and "water," and did i02 Pike V. Brittan, 71 Cal. 159, 11 not relieve the landlord from liabil- Pac. 890, 60 Am. Rep. 527 (stop cock ity for injuries from smoke and ex- negligently left open by landlord's cessive heat caused by the negligent janitor) ; Sheridan v. Forsee, 106 management of the heating appara- Mo. App. 495, 81 S. W. 494; Eugene tus. § 91 LANDLORD'S OBLIGATIONS TOWARDS TENANT. 643 freight or passengers,*"* a dumb waiter,*"'* and machinery trans- mitting power.*''8 Since the landlord is under an obligation to exercise diligence to keep appliances under his control in proper repair, he cannot rid himself of the obligation by delegating the task to an inde- pendent contractor.*"^ It has been said that he is liable for the negligence of the contractor in such case as if it were his own.*"® But it may be questioned whether the landlord is under an obli- gation to do more than use reasonable diligence to see that the appliances are not left by the contractor in such a condition as to injure the tenant, since, as regards anything beyond his legal duty he is entitled to assert the intervention of an independent contractor. In the same state in which this statement was made it has been held that the landlord was not liable for the manner in which a contractor employed by him made repairs on a boiler which subsequently burst.*"^ Occasionally there is an express provision in the lease affecting the landlord's liability for the flooding of the leased premises. A provision that the lessors are not liable for damage caused by the leakage or bursting of water pipes was held to apply to damage caused by the bursting of water pipes in a part of the building not leased, this clause being, in view of other clauses, superfluous if construed as applying only to leakage or bursting on the de- 4»*Grlffen v. Manice, 166 N. Y. v. Farrell, 34 Misc. 515, 69 N. Y. 188, 59 N. B. 925, 52 L. R. A. 992, Supp. 886; Timlan v. Dlllworth (N. 82 Am. St. Rep. 630; Bogendoerfer J. Law) 67 Atl. 433. V. Jacobs, 97 App. Div. 355, 89 N. Y. «« Poor t. Sears, 154 Mass. 539, 28 Supp. 1051; Stewart v. Harvard Col- N. E. 1046, 26 Am. St. Rep. 272; lege, 94 Mass. (12 Allen) 58; Ellis v. Davis v. Pacific Power Co., 107 Cal. Waldron, 19 R. I. 369, 33 Atl. 869; 563, 40 Pac. 950, 48 Am. St. Rep. 156. Springer v. Ford, 189 111. 430, 59 N. iot See Wagner v. Welling, 84 N. E. 953, 52 L. R. A. 930, 82 Am. St. Y. Supp. 979; 16 Am. & Eng. Bnc. Rep. 464. Law (2d Ed.) 197. So where certain obligations Im- *08 Blake r. Fox, 43 N. Y: St. Rep. posed by statute as to guarding ele- 527, 17 N. Y. Supp. 508. Worthlng- vator shafts were neglected. Mai- ton v. Parker, 11 Daly (N. Y.) 545, loy V. New York Real Estate Assn., goes perhaps to this extent. 13 Misc. 496, 34 N. Y. Supp. 679; 409 Perkins v. Eighmie, 24 N. Y. Weinberger v. Katzenstein, 71 App. St. Rep. 728, 6 N. Y. Supp. 156, afd., Div. 155, 75 N. Y. Supp. 537. without opinion, 125 N. Y. 706, 26 N. 405 Blake v. Fox, 43 N. Y. St. Rep. B. 752. 527, 17 N. Y. Supp. 508; Hirtensteln 644 PHYSICAl. CONDITIONS. § 92 mised premises.*i* But a clause in a lease of a building exempt- ing the lessor from liability for injury by fire or water was held not to apply to damage, to one who had taken a sublease of a room in the building, caused by the flow of water from adjoining land which was owned by the landlord, the liability in such case being based on his ownership of such land and not on his owner- ship of the building.*" A provision in a lease of a lower floor exempting the landlord from liability for damage by leakage of water has been held to apply to leakage from pipes in an upper floor to which the lessee had access and which he had agreed to repair.^12 But it has been decided that the landlord is not relieved from liability for leakage resulting from his own negligence, by a provision in terms exempting him from liability for "injury by water which may be sustained by the said tenant or other per- sons, or for any other damage or injury from the carelessness; negligence or improper conduct on the part of any tenant,"*** nor by a clause exempting him from liability "for any damage caused by leakage of water or for any other cause or event,"*** nor by a provision that the landlord shall not be answerable "for damages caused by the elements by leakages in roof, or pip- ing_"4i5 It has been decidecl that a clause exempting the landlord from liability for injuries caused "by the elevators" does not relieve him from liability for those caused by the negligence of an ele- vator operator.*! 5^ § 92. Appliances not under landlord's control. The landlord's liability is based on his right of control over the appliances, and he is not liable for injuries from defects in "oFera v. Child, 115 Mass. 32. And to the same effect, that such *ii Smith V. Faxon, 156 Mass. 589, a clause does not exempt the land- 31 N. B. 687. lord from injuries by leakage which 412 Taylor v. Bailey, 74 111. 178. is directly caused by him, see *i3 Levin v. Habicht, 45 Misc. 381, Eugene C. Lewis Co. v. Metropoli- 90 N. T. Supp. 349. tan Realty Co., 112 App. Div. 385, "4 Randolph v. Feist, 23 Misc. 650, 98 N. Y. Supp. 391, afd., without 52 N. Y. Supp. 109. But see Sonn v. opinion, 189 N. Y. 534, 82 N. B. 1126. Weissmann, 29 Misc. 622, 61 N. Y. ^I'a Cunningham v. -Mutual Be- Supp. 78. serve Life Ins. Co., 125 App. Dir. 415 Worthington v. Parker, 11 Daly 688, 109 N. Y. Supp. 1070. (N. Y.) 545. § 92 LANDLORD'S OBLIGATIONS TOWARDS TENANT. 545 appliances located on the leased premises if he does not reserve control thereof, and accordingly it has been held that he is not liable for defects in water pipes in an apartment, when the only- purpose of such pipes is to supply and distribute water for the apartment, they constituting a part of the demised premises, as to which the landlord is under no obligation to the tenant,*i^ while on the other hand he is liable for defects in pipes on the leased premises if he retains control of these as being intended to supply water to other parts of the same building.*^'' And even in the case of pipes or other appliances upon the leased premises which are used for the purpose of supplying water or heat to those very premises, he is liable in ease he assumes control for a particular purjpose, as for the making of specific repairs, and by his negli- gence causes a leakage,*!^ and so he would be liable if he is negli- gent in the management of the supply of water or steam.*i» The landlord is not liable for injuries to a tenant in a building caused by the improper use of appliances within the exclusive control of a tenant of another part of the building, as when water fixtures on the premises of one tenant are improperly used by the latter so as to cause a flooding of the premises of another tenant.^^o Nor is the landlord liable when the injuries result from defects in ap- pliances on premises leased by him to another, when these defects arise after the lease without the landlord's fault,*^! though he is *ie McKeon v. Cutter, 156 Mass. "s Bryant v. Carr, 52 Misc. 155, 296, 31 N. E. 389; Whitehead v. Com- 101 N. Y. Supp. 646. stock & Co., 25 R. I. 423, 56 Atl. 446. •"o McNichol v. Malcolm, 39 Can. In the latter case It was decided to Sup. Ct. 265, ante, note 403. be immaterial in this respect that 420 Kenny v. Barns, 67 Mich. 336, the landlord was bound to furnish 34 N. W. 587; McCarthy v. York water. County Sav.' Bank, 74 Me. 315, 43 417 Priest V. Nichols, 116 Mass. 401. Am. Rep. 691; Mendel v. Fink, 8 111. So In Levine v. Baldwin, 87 App. App. (8 Bradw.) 378 (semhle) ; DIv. 150, 84 N. Y. Supp. 92, it was Greene v. Hague, 10 111. App. (10 held that a pipe passing from the Bradw.) 598 (upper tenant allowing roof through the cellar, constructed pipes to freeze). But he might be- for the purpose of carrying off wa- come liable therefor by express con- fer from the roof, being for the bene- tract. Dunn v. Robins, 48 N. Y. St fit of the whole building, was under Rep. 45, 20 N. Y. Supp. 341. the landlord's control, and was not 42iHaizlip v. Rosenberg, 63 Ark. included in the lease of the cellar, 430, 39 S. W. 60; Leonard v. Gun- and that consequently the landlord ther, 47 App. Div. 194, 62 N. Y. Supp. was liable for defects therein. 99. 646 PHYSICAL CONDITIONS. § 93 liable if the damage is caused by defects existing at the time of such lease,**2 on principles hereafter discussed.*^* § 93. Liabilities apart from negligence. The landlord is not liable, at least as a general rule, for injuries caused by defects in appliances under his control, unless he is negligent in this regard.* 2* Accordingly, it has been held that the landlord was not liable for injury by leakage from a water closet in an upper floor, the landlord having used ordinary care and diligence in looking after the closet,*^'' or for the negligence o± a person unknown in stopping the outlet of a sink.^^e And the fact that an overflow occurs by reason of the use of a faucet with- in the control of the landlord has been decided not to show negli- gence on his part, when the faucet is accessible to and utilized by other tenants, who might have caused the overflow.*^' In any jurisdiction ^^s -wliere the doctrine is in force that one who accumulates on his premises, for his own purposes, a thing 422 ingwersen v. Rankin, 47 N. J. against them and using them as a Law, 18, 54 Am. Rep. 109; Citron v. backrest while glazing the window. Bayley, 36 App. Div. 130, 55 N. Y. ■>23 See post, § 103 f. Supp. 382. In the case last cited it 424 gee Bertsch v. Unterberg, 88 N. was held that the landlord was liable Y. Supp. 983; Greene v. Hague, 10 for the overflow of water in a cis- 111. App. (10 Bradw.) 598; Becker tern owing to the absence of a "ball v. Bullowa, 36 Misc. 524, 73 N. Y. cock" if this was necessary and cus- Supp. 944; Russo v. McLaughlin, 51 tomary. But in McCarthy v. York Misc. 34, 99 N. Y. Supp. 839; Hansel- County Sav. Bank, 74 Me. 315, 43 man v. Broad, 113 App. Div. 447, 99 Am. Rep. 591, it was held that the N. Y. Supp. 404; Timlan v. Dillworth landlord was not negligent because (N. J. Law) 67 Atl. 433; Rice v. the aperture in a wash bowl for the Trustees of Boston University, 191 outflow of water was insufficient to Mass. 30, 77 N. E. 308; Mills' Adm'r carry off all the water which flowed v. Cavanaugh, 29 Ky. Law Rep. 685, into the bowl when the faucet was 94 S. W. 651. negligently left open, he being liable 425 Bernhard v. Reeves, 6 Wash, only for defects incident to the 424, 33 Pac. 873. proper use of the appliance. 426 Rosenfield v. Newman, 59 Minn. In Shillak v. White, 38 N. Y. St. 156, 60 N. W. 1085. Rep. 483, 14 N. Y. Supp. 637, afd. *27 Aschenbach v. Keene, 46 Misc. 136 N. Y. 625, 32 N. E. 1014, it was 600, 92 N. Y. Supp. 764, citing Moore held that a landlord was under no v. Goedel, 34 N. Y. 527. obligation to see that window guards 42s That is, in jurisdictions where were strong enough to sustain the the doctrine of Rylands v. Fletcher, weight of a grown person leaning L. R. 3 H. L. 330, is adopted. § 93 LANDLORD'S OBLIGATIONS TOWARDS TENANT. §47 which is likely to do injury if it escapes, is bound at his peril to prevent its escape, the landlord Tiight be liable for defective ap- pliances even apart from negligence. The doctrine referred to has been ordinarily enunciated, and has been applied, as between adjoining land owners, and not as between the owners of differ- ent parts of the same building, but the same reasons for its ap- plication apparently exist in the latter case as in the former. Occasionally it appears to have been regarded as applicable as between a tenant of part of a building and the landlord retaining control of another part, in which he introduced or collected water which escaped, its application in those particular cases, however, being excluded on the ground that the introduction or collection of the water by the landlord was not for his own exclusive benefit, but was for the benefit of the building as a whole.*^'' Admitting that the doctrine applies as between owners or ten- ants of different parts of the same building, the language of the leading case on the subject of this absolute liability would seem to justify the view that a landlord introducing water, in the ordinary way, in the part of the building in his control, would be liable, irrespective of negligence, in case a leakage occurs to the injury of the tenant of another part of the building.**" Such an introduction of water in moderate quantity for the ordinary uses incident to a building of that character would, however, it is likely, be regarded as a "natural user" of the part of the building retained by the landlord, within an exception which has apparently been established to the rule of absolute liability.*si This doctrine of the liability of a landowner apart from negli- gence has not, it is proper to remark, been accepted in most *29 Anderson v. Oppenhelmer, 5 Q- case adverse to the landlord is said B. Dlv. 602; Carstairs v. Taylor, L. to be based on a finding of negli- R. 6 Bxch. 217; Tennant v. Hall, 27 genee. New Br. 499. In Defiance Water Co. *3o See the opinion of Blackburn, V. Olinger, 54 Ohio St. 532, 44 N. J., in Fletcher v. Rylands, L. R. 1 E. 238, 32 L. R. A. 736, there are Bxch. 278 approved in Rylands v. expressions to the effect that the Fletcher, L. R. 3 H. L. 330. doctrine is applicable as against a 431 Wilson v. Waddell, 2 App. Gas. landlord in favor of the tenant. In 95. See the rule in Rylands v. Flet- Langabaugh v. Anderson, 68 Ohio cher and the exceptions thereto dis- St 131, 67 N. B. 286, 62 L. R. A. 948, cussed in Pollock's Torts, c. 12. however, the decision In the prior 648 PHYSICAL CONDITIONS. g 94 of the jurisdictions of this country in which it has been the subject of consideration.*^^ In one state in this country, withbut express reference to the doctrine just considered, of liability apart from negligence, the landlord has been held liable for injuries caused a tenant by leakage from water appliances to which the lajidlord has a right of access, although the injuries result from their misuse by third persons.''^^ § 94. Contributory negligence of tenant. One injured by defects in appliances under the landlord's con- trol cannot recover damages if he himself was guilty of negligence contributing to the injury,*** or if he had no right to use them, or was, at the time of the injury, where he had no right to be.*^^ A landlord has been held not to be liable for the bursting of a pipe in the part of the premises retained by him, causing injury to the tenant of another part, resulting from the failure to turn off the water from the building in cold weather, when the only stop cock for this purpose was outside the building, and under the control of the city, it being quite as much within the pdwer of the tenant as of the landlord to have the water turned off.**^ Likewise he has been held not to be liable for loss of the tenant's property caused by failure to clean a chimney flue connected 432 See Shearman & Redfield, Neg. 107 Cal. 563, 40 Pac. 950, 48 Am. St. (5th Ed.) § 701; Burdick, Torts, Rep. 156 (employe of tenant in- 447. jured) ; Huber v. Ryan, 57 App. Div. *33 Marshall v. Cohen, 44 Ga. 489, 34, 67 N. Y. Supp. 972. 9 Am. Rep. 170 ; Freidenburg v. -435 Stewart v. Harvard College, 94 Jones, 63 Ga. 612; Jones v. Freid- Mass. (12 Allen) 58. enburg, 66 Ga. 505, 42 Am. Rep. 86. *3o Buckley v. Cunningham, 103 These decisions go, in their results, Ala. 449, 15 So. 826, 49 Am. St. Rep. even beyond the doctrine of Ry- 42. In Taylor v. Bailey, 74 III. 178, lands V. Fletcher, L. R. 3 H. L. 330, the same view was taken, though which has been decided not to apply there the appliance for turning oft when the immediate cause of injury the water was iu the hall. See, as is the act of a stranger. Box v. to the effect of a covenant by the Jubb, 4 Exch. Div. 76. tenant to turn off the water, Moore 434 Taylor v. Bailey, 74 111. 178, 54 v. Goedel, 34 N. Y. 527; Walker v. L. R. A. 780, 92 Am. St. Rep. 205; Globe Mfg. & Importing Co., 56 Gallagher v. Button, 73 Conn. 172, 46 N. Y. Super Ct. (24 Jones & S.) 431, Atl. 819; Davis v. Pacific Power Co., 4 N. Y. Supp. 193. § 96 LANDLORD'S OBLIGATIONS TOWARDS THIRD PERSONS. 549 with the tenant's apartment, when this fine could have readily been cleaned by the tenant without affecting the flues used by other tenants, and the landlord had not undertaken to clean the fxue, nor retained any control thereover .*3 7 § 95. Effect on liability for rent. Apart from the question of the tenant's right to recover for damage from defects in appliances under the landlord's control, he is, in some states, if such defects render the premises unten- antable, entitled to relinquish possession and thereby free him- self from liability for rent.*^* And he has been held to have this right when the landlord turned off the water from the leased premises.**^ In some jurisdictions the failure to make proper repairs might be referred to as an "eviction," for the purpose of relieving the tenant from liability for rent.*^®" II. Landloed's Obligations Towaeds Thied Peesons. A. To Persons on Premises Leased. § 96. Conditions existing at time of demise. a. Ordinarily no obligation. "We have before considered the question of the liability of the landlord for injuries to the person or property of the tenant caused by defects in the leased prem- ises, and have found that, as a general rule, the landlord is so liable only when the defects existed at the time of the demise, and, even then, only if they Avere so hidden that the lessor could be regarded as under an obligation to notify the lessee of their existence.**^ Considering now the liability of the landlord for injuries to persons, other than the tenant, rightfully on the premises, by the tenant's request or permission, we shall find that ordinarily, at least, if not in every case, the landlord is liable in so far as he would be liable to the tenant, and no further. As regards defects existing at the time of the demise, the gen- M7 Cooper V. Lawson, 139 Mich. Pac. 29, 43 L. R. A. 125. See post, 628, 103 N. W. 168. § 182 n. 438 Fitch V. Armour, 59 N. Y. lowest Side Sav. Bank v. New- Super. Ct. (27 Jones & S.) 413, 39 N. ton, 76 N. Y. 616. Y. St. Rep. 246, 14 N. Y. Supp. «9a See post, §§ 182 n, 185 f (4). 319; Vann v. Rouse, 94 N. Y. 401; *«> See ante, §§ 86, 87. York V. Steward, 21 Mont. 515, 55 650 PHYSICAL CONDITIONS. § 96 eral rule is that the landlord, whether the original lessor or his transferee, is not liable for injuries to the person or property of any person who may thereafter be on the premises.**^ He has a perfect right to lease premises in a "tumbledown" or other- wise dangerous condition, if any person cares to take a lease of them**2 and, as he incurs no liability to the tenant by so doing, so he can incur no liability to persons who go on the premises merely "in right of" the tenant. Otherwise the tenant, by invit- ing persons on the premises, could impose liabilities on the land- lord to an indefinite extent.''*^ As has been well said, "the general rule of law undoubtedly is, that persons who claim damages on the account that they were invited into a dangerous place, in which they received injuries, must seek their remedy against the person who invited them. There is nothing in the relation of landlord and tenant which changes this rule.* * * While such persons may reasonably expect the exercise of care for their safety by the person who invites them, they have no right to ex- "!• Schwalbach v. Shinkle, Wilson Am. Rep. 471; Eyer v. Jordan, 111 & Kreis Co., 97 Fed. 483; Dyer v. Mo. 424, 19 S. "W. 1095, 33 Am. Rep. Robinson, 110 Fed. 99; Burdick v. 543; O'Malley v. Twenty-Five Asso- Cheadle, 26 Ohio St. 393, 20 Am. ciates, 178 Mass. 555, 60 N. E. 387; Rep. 767; McCain v. Majestic Bldg. Clyne v. Helmes, 61 N. J. Law, 358, Co., 120 La. 306, 45 So. 258; Harpel 39 Atl. 767; Towne v. Thompson, 68 V. Fall, 63 Minn. 520, 65 N. W. 913; N. H. 317, 44 Atl. 492; Ryan v. Wll- Mellen v. Morrill, 126 Mass. 545, 30 son, 87 N. Y. 471, 41 Am. Rep. 384; Am. Rep. 695; Phelan v. Fitzpatrick, Montieth v. Finkbeiner, 66 Hun, 633, 188 Mass. 237, 74 N. B. 326, 108 Am. 21 N. Y. Supp. 288; Smith v. State, St. Rep. 469; Peterson v. Smart, 70 92 Md. 518, 48 Atl. 92; Cole v. Mc- Mo. 34; Henson v. Beckwith, 20 R. Key, 66 Wis. 500, 29 N. W. 279, 57 I. 165, 37 Atl. 702, 38 L. R. A. 716, Am. Rep. 293; Anderson v. Hayes, 78 Am. St. Rep. 847; Lane v. Cox 101 Wis. 538, 77 N. W. 891, 70 Am. [1897] 1 Q. B. 415; Copp v. Aldridge St. Rep. 930; Metzger v. Schultz. 16 & Co., 11 Times Law R. 411; Wilson Ind. App. 454, 43 N. E. 886, 45 N. B. V. Treadwell, 81 Cal. 58, 22 Pac. 304; 619, 59 Am. St. Rep. 323; Schmalz- Jaffe V. Harteau, 56 N. Y. 398, 15 Am. ried v. White, 97 Tenn. 36, 30 S. Rep. 438; Folsom v. Parker, 31 Misc. W. 393; Lane v. Cox [1897] 1 Q. B. 348, 64 N. Y. Supp. 263; McKenzie 415. V. Cheetham, 83 Me. 543, 22 Atl. 469; «2Robbins v. Jones, 15 C. B. (N. Whitmore v. Orono Pulp & Paper S.) 221. Co., 91 Me. 297, 39 Atl. 1032, 40 L. 443 Henson v. Beckwith, 20 R. I. R. A. 377, 64 Am. St. Rep. 229; State 165, 37 Atl. 702; Smith v. State, 92 V. Boyce, 73 Md. 469, 21 Atl. 322; Md. 518, 48 Atl. 92, 51 L. R. A. 772. Bowe V. Hunking, 135 Mass. 380, 46 § 96 I^NDLORD'S OBLIGATIONS TOWARDS THIRD PERSONS. Q^i pect like care from his landlord, with whom they are not in priv- ity_"444 There are, however, occasional decisions to the effect,, apparently, that the lessor, if he knows of defects or dangers at the time of the lease, is liable for any resulting injuries to per- sons who may go on the premises by the tenant's iavitation.**^ The question whether the lessor, by making, at the time of the lease or subsequently, a contract to repair the premises, renders himself liable to a third person on the premises, for injuries received by the latter from defects existing at the time of the demise, which would not have continued to exist had the con- tract been performed, will be discussed in connection vdth that of the lessor 's liability for injuries caused by defects arising after the lease, the principle involved being the same in both, cases.****^ b. Concealed defects and dangers. To the above rule of ex- emption of the landlord from liability to third persons on the premises for pre-existing defects, there is one exception, similar to that which exists as regards his liability to the tenant him- self.**^ The lessor is liable to such persons rightfully on the premises for injuries caused by defects or dangerous conditions existing at the time of the demise, which, while not apparent to the lessee, were known to the lessor, and of which he failed to inform the lessee. That is, the lessor, by failing to inform the lessee of such hidden defects, incurs a liability to such third *44Burdick v. Cheadle, 26 Ohio St. opinion. On the authority of this 393, 20 Am. Rep. 767, per Mcllvaine, case, in part at least, a lessor was J. To the same effect, see Johnson held liable for injuries to a guest of V. Tacoma Cedar Lumber Co., 3 the lessee, in Donk Bros. Coal & Wash. St. 722, 29 Pac. 451; McKen- Coke Co. v. Leavitt, 109 111. App. 385. zie V. Cheetham, 83 Me. 543, 22 Atl. In Patterson v. Jos. Schlltz Brew. 469. Co., 16 S. D. 33, 91 N. W. 336, the *45 In Eaird v. Shipman, 132 111. landlord was held liable for injuries 16, 23 N. E. 384, it was assumed to the tenant's employee, the court that a lessor is liable for an iifjury, stating broadly that a landlord is caused by a defect of which the les- Jiable for an injury to a stranger sor knew at the time of the lease, caused by a dangerous condition of to one coming on the premises to which he had, or might have had, deliver goods to the tenant. There notice, a rule properly applicable was no discussion of the question, only as regards injuries to third per- apparently, either by the court or sons not on the premises by the ten- counsel. There was an oral promise ant's invitation. See post, § 101. , by the lessor's agent to repair, but 4*6 See post, § 97 c. no reference is made thereto in the 447 gee ante, § 86 d. 652 PHYSICAL CONtHTIONS. § 96 persons injured by such defects.**^ And his liability extends not only to dangerous conditions of which he actually knows, but also to those the existence of which he has reasonable ground to suspect.**" One leasing premises performs his full duty if he informs the lessee of any hidden danger or defect of which the lessee is ignor- ant, and he is not liable to a third person on the premises because the latter is not informed of the danger by the lessee. This is clearly implied by the decisions, though not explicitly stated.*'"' 448 whitmore v. Orono Pulp & Pa- These cases have been criticised per Co., 91 Me. 297, 39 Atl. 1032, 64 (Jaffe v. Harteau, 56 N. Y. 398, 15 Am. Am. St. Rep. 229; Cutter v. Hamlen, Rep. 438) and there Is a dictum clear- 147 Mass. 471, 18 N. E. 397; Mar- ly opposed to them In Schwalbach v. tin V. Richards, 155 Mass. 381, 29 N. Shinkle, "Wilson & Kreis Co., 97 Fed. E. 591; 'Shute v. Bills, 191 Mass. 433, 483. They are not In accord with 78 N. E. 96; Coke v. Gutkese, 80 Ky. the current of authority to the effect 598, 44 Am. Rep. 499; Holzhauer that the lessor Is liable for injuries V. Sheeny, 31 Ky. Law Rep. 1238, 104 only if they are caused by hidden de- S. W. 1034; Moore v. Parker, 63 fects of which the lessor knew and Kan. 52, 64 Pac. 975, 53 L. R. A. 778; which he failed to disclose. Davis V. Smith, 26 R. I. 129, 58 Atl.- **» Metzger v. Schultz, 16 Ind. App. 630. 454, 43 N. E. 886, 45 N. E. 619, 59 Xn Godley v. Hagerty, 20 Pa. 387, Am. St. Rep. 323; Schmalzrled v. 59 Am. Dec. 731, it was held that one White, 97 Tenn. 36, 36 S. W. 393; who built a light and unsubstantial Stenberg v. Wlllcox, 96 Tenn. 163, building and leased it for purposes 33 S. W. 917; Wlllcox v. Hines, 100 of heavy storage was liable for in- Tenn. 524, 45 S. W. 781, 66 Am. St. juries to a laborer therein caused Rep. 761 ; Wlllcox v. Hines, 100 Tenn. by the fall of the building, and the 538, 46 S. W. 297, 66 Am. St. Rep. same lessor was, in Carson V. Godley, 770; Borman v. Sandgren, 37 111. 26 Pa. Ill, 67 Am. Dec. 404, held App. 160; Albert v. State, 66 Md. 325, liable for injuries to goods stored in 7 Atl. 697, 59 Am. Rep. 159. But he the building. The liability was placed is not liable if he did not have reas- on the ground of negligence in leasing onable ground to suspect such con- a building for such a purpose, know- ditions. Shute v. Bills, 191 Mass. ingly, or, as having built it, having 433, 78 N. E. 96. reason to know, its InsufiBcIency; and *5o gee Schwalbach v. Shinkle, though these cases do not, as do the Wilson & Kreis Co., 97 Fed. 483; later cases, base the lessor's liability Whitmore v. Orono Pulp & Paper Co., on his failure to inform the lessee 91 Me. 297, 39 Atl. 1032, 64 Am, of the defects, they say that he would St. Rep. 229 ; Harpel v. Fall, 63 Minn, have been relieved from liability if 520, 65 N. W. 913; O'Brien v. Cap- he had stipulated against any use well, 59 Barb. (N. Y.) 497; Akerley of the premises for heavy storage, v. White, 58 Hun, 362, 12 N. Y. Supp. § 96 LANDLORD'S OBLIGATIONS TOWARDS THIRD PERSONS. 553 The lessee 's knowledge is in effect imputed to the person injured, or rather, perhaps, it is the lessee's duty, not the lessor's, to inform persons, entering on the premises by the former's invita- tion or permission, of the dangerous condition. A different rule, requiring the lessor to give such information to every person whom the lessee may allow upon the premises, would impose on the lessor the duties of an occupant while divested of the benefits, and would in effect prevent the leasing of any premises in which there is a concealed source of danger to persons who might enter thereon. As has been before indicated, in connection with the qiiestion of the lessor's liability to the tenant himself, for injury by con- cealed defects of which he knows,*^^ the preferable theory of lia- bility is in effect the same as that by which one who sells an arti- cle which he knows to be dangerous, without disclosing its dan- gerous character, is held liable to any person injured thereby.*^^ For the purpose of the application of such a principle, it is imma- terial whether the thing thus disposed of to another without any notification of its dangerous characteristics is a piece of land, a house, or a chattel, or whether it is disposed of for a limited period or permanently. In any jurisdiction in which the lessor's liability for injuries caused by concealed defects of which he knew at the time of the lease is based exclusively on the theory of fraud,*^* the question might arise whether a third person, not a party to the lease, could recover by reason of such defects, on the theory that the concealment was intended to deceive such a third person as well as the lessee, the general rule being that there can be no re- covery in an action for deceit unless the defendant intended that 149; Anderson v. Hayes, 101 Wis. have been reasonably anticipated." 538, 77 N. W. 891; Roche v. Sawyer, Burdick, Torts, 453. "A person who 176 Mass. 71, 57 N. E. 216; Jordan knowingly sells or furnishes an ar- V. Sullivan, 181 Mass. 348, 63 N. E. tide which, by reason of defective 909. construction or otherwise, is imml- 451 See ante, at notes 35-39. nently dangerous to life or property, *52 "A person, who sells or rents without notice or warning of the de- an article, which he knows, or is le- feet or danger, is liable to third par- gally bound to know, is imminently ties who suffer therefrom." Cooley, dangerous to life or limb, to another, Torts (3d Ed.) 1489. See, also, without giving notice of Its quali- Huset v. J. I. Case Threshing Mach. ties, is liable to any person who suf- Co., 57 C. C. A. 23Y, 120 Fed. 865. fers injury therefrom, which might 453 See ante, note 40. 654 PHYSICAL CONDITIONS. § 96 the plaintiff, or persons of the class to which plaintiff belongs, should act on the false representation.*^* A liability on the part of the lessor, for injuries caused by concealed defects, known to and not disclosed by him, has been asserted in favor of members of the tenant's family residing with him on premises leased for residence purposes,*^^ and also in favor of employees of the tenant.*^^ It would seem to exist also in favor of any persons whose presence on the demised prem- ises might have been anticipated by the lessor as a result of the making of the lease, such as business visitors, or social guests.*^'' Likewise the lessor owes such a duty, it would seem, to a sub- lessee or assignee of the leasehold as well as to persons coming on the premises by invitation of such sublessee or assignee,*^^ pro- vided, it seems, the sublease or assignment is not prohibited by the lease, and not if it is so prohibited, since the presence of the *54 In Lovitt V. Oreekmore, 26 Ky. the leased premises. Here, however, Law Rep. 234, 80 S. W. 1184, it is the landlord was held not liable un- decided, without any discussion ot der the general rule that the lessor the matter, that the lessee's servant is not liable for defects in the prem- could not recover in the absence of ises. The court does not refer to the allegations of fraud on the part of obligation of the lessor to reveal the lessor. It was not decided hidden defects. It would appear whether he could recover on the that the lessor knew of the defect be- ground of fraud. fore the injury but not before the As to the general rule referred to, lease. As to the sufficiency of such see Kerr, Fraud & Mistake (3d Ed.) knowledge to impose liability, see 402; Bigelow, Torts (7th Ed.) § 164; ante, notes 57, 58. Burdick, Torts, 374. 457 McConnell v. Lemley, 48 La. *55 Moore v. Parker, 63 Kan. 52, Ann. 1433, 20 So. 887, holding the 64 Pac. 975, 53 L. R. A. 778; Coke landlord exempt from liability to a v. Gutkese, 80 Ky. 598, 44 Am. Rep. guest of the tenant, was decided en- 499 ; Cutter v. Hamlen, 147 Mass. 471, tirely upon the local statute, with- 18 N. E. 397. See Shute v. Bills, 191 out reference to any common-law Mass. 433, 78 N. E. 96. . authorities. 456 Harrinson v. Jelly, 175 Mass. 458 See Jaffa v. Harteau, 56 N. Y. 292, 56 N. E. 283; Anderson v. Hayes, 398, 15 Am. Rep. 438, for a dictum 101 Wis. 538, 77 N. W. 891, 70 Am. that the lessor owes the same duty St. Rep. 930. See Godley v. Hagerty, to the sublessee as to the lessee. 20 Pa. 387, 59 Am. Dec. 731. But that he owes no duty to the sub- In Perez v. Rabaud, 76 Tex. 191, lessee's licensee, see Malone v. Las- 13 S. W. 177, it is said that the em- key [1907] 2 K. B. 141, post, note ployee of the tenant stands in place 473. of the tenant as regards a defect In § 96 LANDLORD'S OBLIGATIONS TOWARDS THIRD PERSONS. 655 sublessee or of persons invited by him could not have been anticipated by the lessor if such prohibition existed.*** It does not seem that, in this connection, the distinction which exists, with reference to the liability of a landowner, between persons invited on the premises by him and ' ' mere licensees, ' ' has any place. The lessor is liable to persons on the leased premises on account of concealed defects therein, not as having invited them on the premises, nor because the lessee has invited them thereon, but because he had reason to anticipate their presence, and consequently had no right to subject them to danger by failing to warn the lessee, so that the latter might guard against the danger, or in, turn warn such persons of the existence of the danger. The liability imposed, as stated above, on a lessor who leases premises in which there are concealed defects or dangers, which he fails to divulge to the lessee, being based on the lessor's neg- ligence in so doing, cannot, it would appear, be extended to a subsequent transferee of the reversion. That is, the liability is imposed on one as lessor rather than as landlord.*®** c. Premises of public or quasi public nature. The lessor of premises used for a public or quasi public purpose, such as a wharf or pier,*«i or a public hall,*®* ^as been held liable to 459 In Cole V. McKey, 66 Wis. 50O, But the lessor was held not to be 29 N. W. 279, 57 Am. Rep. 293; Don- liable for defects In a pier, of whicH aldson v. Wilson, 60 Mich. 86, 26 N. defects he did not know at the time W. 842, 1 Am. St. Rep. 487, it was of the demise and could not have held that the landlord owed no duty known in the exercise of reasonable to a sublessee when subleasing was diligence. State v. Boyce, 73 Md. forbidden by the lease. 469, 21 Atl. 322. In Cannavan v. 460 Ahem v. Steele, 115 N. Y. 203, Conklin, 1 Daly (N. Y.) 509, 1 Abb. 22 N. E. 193, 5 L. R. A. 449, 12 Am. Pr. (N. S.) 271, the lessors of a pier St. Rep. 778, seems to decide this in reserved the right to use and occupy effect, but the case is complicated, so much as their business would re- and needlessly so, it appears, by the quire, and it was held that they and introduction of the theory of nui- their lessee were in joint possession sance. See post, §§ 102-104. and so were jointly liable for de- *«i Albert v. State, 66 Md. 325, 7 fects. It would seem more properly Atl. 697, 59 Am. Rep. 159; Swords v. that the lessee was in possession, Edgar, 59 N. Y. 28, 17 Am. Rep. 295; while the lessor merely had a license Joyce T. Martin, 15 R. I. 558, 10 Atl. to use it. 620; Eckman v. Atlantic Lodge No. les Oxford v. Leathe, 165 Mass. 254, 276. 68 N. J. Law, 10, 52 Atl. 293. 43 N. B. 92; Fox v. Buffalo Park, 21 656 PHYSICAL CONDITIONS. persons rightfully there for defects existing therein at the time of the demise, and there are occasional expressions to the effect that there is a duty upon the lessor of such premises, which does not exist in the case of other premises, to see that they are, at the time of the demise, safe for us^ by the public or by such portion of the public as may have occasion to enter thereon.**' App. Div. 321, 47 N. Y Supp. 788, afd. 163 N. Y. 559, 57 N. E. 1109; Camp T. Wood, 76 N. Y. 92; Copley V. Balle, 9 Kan. App. 465, 60 Pac. 656 (hotel); May v. Bnnis, 78 App. Dlv. 552, 79 N. Y. Supp. 896 (ditto). In Oxford v. Leathe, 165 Mass. 254, 43 N. E. 92, it was held that where a building was leased for a public ex- hibition, the lessor was liable to one injured by the fall of a platform in front of the building while wait- ing for the exhibition to open, since the lessor "must be taken, or at least might have been found, to have con- templated the use of the stairs and platform, as they were, by the pub- lic for the purpose of going to the show. If the jury found that the use actually made of the platform was something which the defendant was bound to have contemplated, he was liable for any neglect of proper pre- cautions to make it safe, * * « just as in the case of premises let with a nuisance upon them." In Jordan v. Sullivan, 181 Mass. 348, 63 N. E. 909, this case is distinguished, apparently, on the ground that the person injured, in the later case, was not of a class whose presence on the premises could have been anticipated by the lessor. In Edwards v. New York & H. R. Co., 98 N. Y. 245, 50 Am. Rep. 659, where a hall was leased for the pur- pose of a walking match, and a gal- lery therein fell when filled by a large and unruly crowd, the majority of the court (four judges) decided that the lessor was not liable, since he had no reason to suppose that the gallery would be so filled. It having been originally built and always used merely for the serving of re- freshments to a limited number of persons, of which fact the lessee might have known by the presence of the tables and chairs, it appearing furthermore that the lessor had no knowledge of any weakness in Its construction. The minority of the court (three judges) thought that the condition of the gallery when leased was not such as to necessarily charge the lessee with notice that the gallery was not intended to be used as other parts of the house and filled to its utmost capacity, but that this was a question for the jury. 163 In sterger v. Van Sicklen, 132 N. Y. 499, 30 N. E. 987, 16 L.. R.. A. 640, 28 Am. St. Rep. 594, it is said: "There are cases" (referring to Clancy v. Byrne, 56 N. Y. 129, 15 Am. Rep. 391; Swords v. Edgar, 59 N. Y. 28, 17 Am. Rep. 295) "where the use to which an owner of prop- erty puts it is of such a public char- acter that he is bound to observe reasonable care in keeping it in such a condition as to save, harmless, those who are invited to come onto it for the benefit and profit of the owner." And in Fox v. Buffalo Park, 21 App. Div. 321, 47 N. T. Supp. 788, afd. without opinion, in 163 N. Y. 559, 57 n! E. 1109, the court § 96 l>ANDLORD'S OBLIGATIONS TOWARDS THIRD PERSONS. 657 The idea is, perhaps, that owing to the fact that the lessor knows that persons will come upon the premises in large, or at least considerable, numbers, without having had, or seeking, direct communication with the tenant, it cannot be anticipated that they will be informed by the tenant of the existence of danger- ous conditions, and perhaps also it is thought that in the ease of such a place persons coming thereon will be less likely says: "While it is undoubtedly ous condition, is certainly a nui- true, in ordinary cases, in the leas- sance of the worst character. It ing of buildings, that there is no im- will not do for the owner, knowing plied warranty on the part of the its condition, or having, by the ex- lessor that the buildings are fit and ercise of any reasonable care, the safe for the purposes for which they means of knowing it, to rent it out are leased, the rule is different in and receive rent for it, but escape all regard to buildings and structures liability when the crash comes. He in which public exhibitions and en- who solicits and invites the public tertainments are designed to be to his resorts must have them in a given, and for admissions to which reasonably safe condition, and not the lessors directly or indirectly re- in a condition to risk the lives and ceive compensation. In such cases limbs of his visitors." the lessors or owners of the build- In Barrett v. Lake Ontario Beach ings or structures hold out to the Imp. Co., 174 N. Y. 310, 66 N. E. 968, public that the structures are rea- 61 L. R. A. 829, it is said that "if the sonably safe for the purposes for premises are rented for a public use which they are let or used and im- for which the lessor knows that they pliedly undertake that due care has are unfit and dangerous, he is guilty been exercised in the erection of the of negligence and may become re- buildings." The cases cited in sup- sponsible to persons suffering injury port of this statement are, however, while rightfully using them," and inapplicable. one who had leased to another a In Smith v. State, 92 Md. 518, 48 bathing establishment, appurtenant Atl. 92, it is said that "if the prop- to which was a tobaggan slide "de- erty be of a public character, he (the signed for the use of the public," was owner) cannot with impunity rent held liable for injuries to a guest of it in an unsafe condition, and, if he the establishment caused by the de- does, may be required to answer to fective construction of the slide, those who are brought upon it, at In Copley v. Balle, 9 Kan. App. 465, the instance of his lessee, for inju- 60 Pac. 656, it was said that the les- ries they sustain;" citing and quot- sor of a hotel "was negligent in leas- ing Albert v. State, 66 Md. 325, 59 ing the property to be used for a Am. Rep. 159, supra, where it Is said: public purpose without providing for "A wharf furnishing the only mode the protection of patrons from the of ingress and egress to a summer re- danger of injuries by reason of the sort, where crowds are invited to excavation thereon." come, if in an unsafe and danger- L. and Ten. 42. 65S PHYSICAL CONDITIONS. § 96 to be on the alert to avoid danger. These considerations would seem, however, to apply to the same extent to premises used for any private business, such as a department store, on which persons are likely to enter in considerable numbers. And if such a store is to be regarded as a public place within the meaning of the view asserted in the cases referred to, the ques- tion arises as to how large and how popular a store must be in order to constitute a public place. The cases make no sugges- tions as to the basis of the rule, otherwise than occasional state- ments that such a dangerous condition, existing on premises of a public or quasi public character, constitutes a "nuisance," nor do they undertake to say what class of use is public or quasi pub- lic so as to render the rule applicable. Occasionally, as in the case of a public hall "leased" to one for a few nights only, the owner's liability, it is submitted, might be more properly placed on the ground that he has not given a lease but merely a license, and consequently retains the full possession and control of the premises and, because the licensee is in no position to look to the physical condition of the premises, the lessor, so called, owes the duty of keeping the premises safe for all such as he may expect to come thereon by invitation of the so called lessee.*** Occasionally the view that a distinction exists between a build- ing devoted to public purposes and one devoted to private purposes, seems to have been expressly repudiated.*®^ If 464 See Oxford v. Leathe, 165 Mass. tertalnments, and lets it for those 254, 43 N. E. 92, and ante, § 7 b. purposes, knowing that it is so im- 465 In Willcox V. Hines, 100 Tenn. perfectly and carelessly built that it 538, 46 S. W. 297, 41 L. R. A. 278, is liable to go to pieces in the ordl- 66 Am. St. Rep. 770, it is said there is nary use for which it was designed, no ground for the application of a he is liable to the persons injured different rule in the case of a lease through his carelessness. And this of premises for public purposes from rule of responsibility goes far enough that applicable in the case of a lease for the protection of lessees and of for private purposes, since "the obli- the public generally. It is but a gation not to expose the individual just and reasonable application of to danger is the same as that not to the maxim, sio utere tuo ut alienum expose the public to danger." non laedas." And it is said else- In Edwards v. New York & H. R. where in the opinion as .to the lia- Co., 98 N. Y. 245, 50 Am. Rep. 659, bility of the landlord, that "there i9 Earl, J., says: "If one builds a no distinction stated in any author- house for public amusements or en- ity between cases of a demise of § 97 LANDLORD'S OBLIGATIONS TOWARDS THIRD PERSONS. 659 such a distinction is to be generally recognized, it is desirable that the reasons therefore may be presented judicially, and that the line between public and private use may be indicated with some degree of clearness. To say that the lessor is liable for such a condition upon premises leased for use for public pur- poses, because such a condition upon such premises constitutes a nuisance, seems little more than a statement that he is liable, and, furthermore, it seems hardly correct, since liability for the maintenance of a nuisance is independent of negligence,**®- *«^ and the cases referred to above ordinarily assert a liability as for lack of due care. § 97. Conditions arising after demise. a. Ordinarily no obligation. The lessor is ordinarily under no obligation towards persons on the premises for defective or dangerous conditions which may have arisen after the demise, he being in no position to discover such conditions or to remove them, and the obligation in. that regard being upon the tenant in control of the premises. Accordingly he has been held not to be liable for injuries to one, rightfully on the premises, which were caused by a lack of repair, such repair not having become necessary till after the demise,*®* for those caused by defective repairs or improvements made by the tenant,*®^ or for those caused by the tenant's negligence in leaving open hatchways, dwelling houses and of buildings to J. Law, 358, 39 Atl. 767; Clancy v. be used for public purposes." In Byrne, 56 N. Y. 129, 15 Am. Bo-?. 391; this case the "lease" was of "Gil- Canandaigua v. Foster, 15t) kt. Y. 354, more's Garden" for a pedestrian ex- 50 N. E. 971, 41 L. R. A. 554, 66 pedition, and was legally no more Am. St. Rep. 575; Curran v. Flam- than a license. The decision was, mer, 49 App. Div. 293, 62 N. Y. Supp. properly no doubt, that the lessor 1061; Leaux v. New York, 87 App. was not liable because not guilty of Div. 398, 84 N. Y. Supp. 514; Towne negligence. . v. Thompson, 68 N. H. 317, 44 Atl. 466, 467 See post, § 102. 492, 46 L. R. A. 748 ; Perez v. Rabaud, «8 McLean v. Fiske Wharf & Ware- 76 Tex. 191, 13 S. W. 177; Ward v. house Co., 158 Mass. 472, 33 N. E. Hlnkleman, 37 Wash. 375, 79 Pac. 499; Dalton v. Gibson, 192 Mass. 1, 956; Lane v. Cox [1897] 1 Q. B. 415. 77 N. E. 1035, 116 Am. St. Rep. 218; «9 Glass v. Colman, 14 Wash. 635, Cummings v. Ayer, 188 Mass. 292, 45 Pac. 310. 74 N. B. 336; Clyne v. Helmes, 61 N. 660 PHYSICAL CONDITIONS. § 97 elevator doors and the ]ike,*^* in not lighting passage ways,*'^ or in using defective machinery .■*''2 b. Negligent acts. To the rule exempting the landlord from liability for a defect or danger arising after the demise, there is, apparently, an exception when the defect or danger is the creation of the lessor himself, in the course of repairs or alterations made by him during the tenancy. He is liable therefor as for any negligent act on his part resulting in injury to another.*'^ And on somewhat the same principle he is liable for injuries caused by defects in machinery which he retains under his exclusive control for his own purposes.*'^* *7o Handyside V. Powers, 145 Mass. 473 See Barman v. Spencer (Ind.) 123, 13 N. E. 462; Caldwell v. Slade, 49 N. B. 9; Shute v. Bills, 191 Mass. 156 Mass. 84, 30 N. B. 87; Texas 433, 78 N. B. 96, 7 L. R. A. (N. S.) Loan Agency v. Fleming, 92 Tex. 965, 114 Am. St. Rep. 631; Leslie v. 458, 49 S. W. 1039, 44 L. R. A. 279; Pounds, 4 Taunt. 649. But in Malone De Graffenried v. "Wallace, 2 Ind. T. v. Laskey [1907] 2 K. B. 141, it was 657, 53 S. W. 452; Dood v. Roths- decided that the landlord was not child, 31 Misc. 721, 65 N. Y. Supp. liable for injury to a licensee of a 214. sublessor caused by defective re- 171 Mellen v. Morrill, 126 Mass. 545, pairs made by workmen employed 30 Am. Rep. 695; Eyer v. Jordan, by him and supposed by him to be 111 Mo. 424, 19 S. W. 1095, 33 Am. competent. The decision seems to St. Rep. 543. be based chiefly on the theory that One who has leased a building as a there was no invitation on the part whole is not liable to one to whom of the landlord to such licensee to his lessee subleased a part of the use the premises, and that in the building for defects In a passageway absence of such invitation he owed used by the sublessees In common, no duty to exercise care as regards since such original lessor has no con- such licensee. trol thereof. Marley v. Wheelwright, "^ Poor v. Sears, 154 Mass. 539,' 28 172 Mass. 530, 52 N. E. 1066. N. E. 1046, 26 Am. St. Rep. 272; *72 Johnson v. Tacoma Cedar Lum- Davis v. Pacific Power Co., 107 Cal. ber Co., 3 Wash. St. 722, 29 Pac. 451. 563, 40 Pac. 950, 48 Am. St. Rep. 156, In Crusselle v. Pugh, 67 Ga. 430, in both of which cases the machinery 44 Am. Rep. 724, the exemption of the was used for transmitting power to lessor from liability was held to an adjoining building occupied by extend to a case where the person the landlord. In the latter case It Injured supposed that he was still was decided that the plaintiff who. In the lessor's employ, not knowing having gotten something in his fin- that the prenlises had been leased ger, went to the only place where and that he was in reality working there was sufficient light for the for the lessee. This was a case ot purpose of extracting it, and was injuries from blasting. there injured, was not a "mere vol- § 97 LANDLORD'S OBLIGATIONS TOWARDS THIRD PERSONS. 661 c. Contract by lessor to repair. It has been judicially asserted that, if the lessor agrees with the lessee to make repairs, and a third person is injured by defects which would not have existed if the lessor had performed such agreement, such person may recover against the lessor. This view has usually been asserted in connection with injuries to persons not on the premises,*''^ and has been in terms based upon the theory that "circuity of action" is thereby avoided, since the person injured could have recovered against the tenant, and the tenant could in turn have recovered on the lessor's agreement to repair.*^® This theory of avoidance of circuity of action has apparently been but seldom suggested in connection with an action by a person on the premises by invitation from the tenant,*'''' and its sound- ness is open to question.*''* In a few states there are decisions that the lessor thus contracting to repair is liable to a person upon the premises by invitation from the tenant, who is injured by the lack of repair, without any statement of the theory ol liability.*''^ And there are occasional statements to the effect unteer" while there, since he was ground for imposing liability on the engaged in the removal of an oh- landlord. The others give no rea- stacle to the performance of his son. The case is referred to in work. rather disparaging terms in Russell «5 See post, I 107. v. Shenton, 3 Q. B. 449. *'« Gridley v. City of Bloomington, *77 in Perez v. Rabaud, 76 Tex. 191, 68 III. 47; Boyce v. Tallerman, 183 13 S. W. 177, 7 L. R. A. 620, an 111. 115, 55 N. B. 703; City of Low- action for injuries to the tenant's ell V. Spaulding, 58 Mass. (4 Cush.) servant, it is referred to as one ex- 277, 50 Am. Dec. 775; Inhabitants ception to the general rule of non- of Milford V. Holbrook, 91 Mass. ( 9 liability on the part of the landlord Allen) 17, 85 Am. Dec. 735; Szath- In Miles v. Janvrin, 196 Mass mary v. Adams, 166 Mass. 145, 44 431, 82 N. E. 117, 124 Am. St, N. E. 124; Frischberg v. Hurter, 173 Rep. 575, it is decided that liabil- Mass. 22, 52 N. E. 1086; Fleischner ity on the part of the landlord for T. Citizens' Real Estate & Inv. Co., injuries to the tenant's wife could 25 Or. 119, 35 Pac. 174; Nelson v. not be sustained on this theory, since Liverpool Brewery Co., 2 C. P. Div. she could not have sued the tenant, 311. her husband. In Payne v. Rogers, 2 H. Bl. 350, ■'78 See post, § 107. on which all the later decisions are 479 Campbell v. Portland Sugar Co., directly or indirectly based, but one 62 Me. 552, 16 Am. Rep. 503; Bar- of the four judges mentioned the ron v. LiedlofE, 95 Minn. 474, 104 N. avoidance of circuity of action as a W. 289; Sontag v. O'Hare, 73 111. 662 PHYSICAL. CONDITIONS. § 97 that he is so liable on the ground of negligence, if he fails to make repairs within a reasonable period after he knows of the need of repair.*^* In one case the view that a lessor is liable if he covenants to repair has been extended to the case of a war- ranty by him as to the safe condition of the premises, a member of the tenant's family having been injured by an unsafe, eon- dition.*8i In a number of cases a right of recovery against the landlord, in favor of a person upon the premises by the tenant 's invitation, injured by reason of defects or dangers which would have been obviated had the lessor performed his covenant to repair, is ex- plicitly denied,*^2 T^hile in others it is in effect decided that he has no such right of recovery unless the landlord had notice of the need of repairs.*^^ App. 432; Stlllwell's Adm'r v. South v. Bnnis, 78 App. Dlv. 552, 79 N. Y. Louisville Land Co., 22 Ky. Law Rep. Supp. 896. 785, 58 S. W. 696, 52 L. R. A. 325. *si Moore v. Steljes, 69 Fed. 518. In Olson V. Schultz, 67 Minn. 494, 482 ciyne v. Helmes, 61 N. J. Law, 70 N. W. 779, 36 L. R. A. 790, 64 358, 39 Atl. 767; Miles v. Janvrin, 196 Am. St. Rep. 437, it was held that Mass. 431, 82 N. E. 70-8, 124 Am. St. under a covenant "to keep the ele- Rep. 575; Quay v. Lucas, 25 Mo. App. vator and approaches in constant 4; Burdick v. Cheadle, 26 Ohio St. repair and perfect condition," the 393, 20 Am. Rep. 767; Brady v. Klein, lessor was liable for injuries to the 133 Mich. 422, 95 N. W. 557, 103 Am. employe of one of the tenants arising St. Rep. 455; Dustin v. Curtis, 74 N. from defects in the elevator irrespec- H. 266, 67 Atl. 220; Cavalier v. Pope tive of the lessor's actual knowledge [1906] App. Cas. 428, afg. [1905] 2 K. of the defects, provided, it seems, B. 757; Willcox v. Hines, 100 Tenn. he could have discovered them in the 524, 45 S. W. 781, 66 Am. St. Rep. 761; exercise of reasonable diligence; and Sterger v. Van Sicklen, 132 N. Y. that it was not sufficient to keep it 499, 30 N. E. 987, 16 L. R. A. 640, 28 In such repair as it was in at the Am. St. Rep. 594 ; Flynn v. Hatton, 43 date of the demise. The court How. Pr. (N. Y.) 333; Frank v. Man- emphasizes the covenant as a basis del, 76 App. Div. 413, 78 N. Y. Supp. of liability, but it might as well have 855; Dood v. Rothschild, 31 Misc. 721, been based on the fact that the ele- 65 N. Y. Supp. 214; Miller v. Rin- vator was under the lessor's control, aldo, 21 Misc. 470, 47 N. Y. Supp. it not being included in the demise, 636; Stelz v. Van Dusen, 93 App. Div. but being used in common by all the 358, 87 N. Y. Supp. 716; Sherlock v. tenants of the building. See post, Rushmore, 99 App. Div. 598, 91 N. § 99. Y. Supp. 152. *8o Thompson v. Clemens, 96 Md. *83 Thompson v. Clemens, 96 Md. 196, 53 Atl. 919, 60 L. R. A. 580; May 196, 53 Atl. 919, 60 L. R. A. 580; § 97 LANDLORD'S OBLIGATIONS TOWARDS THIRD PERSONS. 663 A lessee who has made a sublease cannnot, it has been decided, be subjected to liability to a third person by reason of his covenant with his lessor to keep the premises in repair. The theory of avoidance of circuity of action is inapplicable for the purpose of imposing such liability, since such lessee is not by his covenant bound to indemnify the sublessee, who is primarily liable to the person injured.*** In one jurisdiction there are statements to the effect that the fact that the lessor has covenanted to repair, or that he has reserved a right to enter to repair, does not impose upon him a liability for injuries to a person on the premises by reason of the lack of repair, unless this constitutes a "nuisance."**" It is somewhat difHcult to understand what is meant by the ex- pression "nuisance" in this connection. A defect or danger on private premises cannot well constitute a nuisance as regards one coming thereon by license,**^ since it does not affect him in the enjoyment of property or in the exercise of a common Hutchinson v. Cummings, 156 Mass. in Tuttle v. Gilbert Mfg. Co., 145 329, 31 N. B. 127; McLean v. Fiske Mass. 169, 13 N. E. 465, which, how- Wharf & Warehouse Co., 158 Mass. ever, makes no reference to the ques- 472, 33 N. E. 499; Marley v. Wheel- tion of notice of the need of repairs, wrIght, 172 Mass. 530, 52 N. E. 1066;' but is explicitly to the effect that a Ahern v. Steele, 115 N. Y. 203, 22 mere failure by the lessor to perform N. E. 193, 12 Am. St. Rep. 778; Ploen his contract to repair imposes on V. Staff, 9 Mo. App. 309. In Sinton him no liability for personal injuries V. Butler, 40 Ohio St. 158, it was re- received by the lessee, garded as a question of the construe- m Ahern v. Steele, 115 N. Y. 203, tion of the lease whether the lessor 22 N. E. 193, 5 L. R. A. 449, 12 Am. is liable, by reason of his agreement St. Rep. 778; Clancy v. Byrne, 56 N. to repair, in the absence of notice to Y. 129, 15 Am. Rep. 391. him of the need of repairs. *85 Sterger v. Van Sicklen, 132 N. The implication in these cases Y. 499, 30 N. E. 987, 16 L. R. A. 640, other than .the one first cited, that 28 Am. St. Rep. 594; Ahern v. Steele, the lessor is liable in case he has 115 N. Y. 203, 22 N. B. 193, 5 L. R notice of the need of repairs, would A. 449, 12 Am. Rep. 778; Quay v. seem hardly reconcilable with other Lucas, 25 Mo. App. 7. And see decisions in the same jurisdictions Brady v. Klein, 133 Mich. 422, 95 N. cited in the next preceding note. W. 557, 62 L. R. A. 909, 103 Am. St. The first of the Massachusetts cases Rep. 455. above cited, Hutchinson v. Cum- 486 See Burdick v. Cheadle, 26 Ohio mings, 156 Mass. 329, 31 N. B. 127, St. 393, 20 Am. Rep. 767, an able purports to be based on the decision opinion by McIIvaine, J. 664 PHYSICAL CONDITIONS. § 98 right.*^^ This exception in favor of the liability of a lessor would seem to be inapplicable unless perhaps the premises are of a public character. The person injured cannot, it seems clear, recover by reason of the lessor's breach of his contract to repair, if the injuries can be attributed to contributory negligence on the part of the f ormer.*®^ B. To Persons in Places or Using Appliances Under the Land- lord's Control. § 98. Persons in places under laindlord's control. We have before considered the liability of a landlord to his tenant for injuries to the latter caused by defects and dangerous conditions, not in the premises leased to the tenant, but in places adjacent thereto which are retained and controlled by the land- lord, though used in common by such tenant and other tenants of the same landlord in connection with their respective tene- ments, a doctrine applied with the greatest frequency in the case of common passages and stairways used in connection with the various apartments in a building leased to different persons,**^ but which is also applicable in case of defects in a common ap- proach to separate buildings, as well as in the case of yards, spaces and platforms intended for use by the various tenants of the person in control.''^" The landlord is liable to the various tenants for defects in such approaches, or other places adjacent to the leased premises and used by the various tenants, on the ground that, either by making the lease, or by acquiring such places, subject to the rights of the tenants to make use there- of, he impliedly invites each tenant to enter on such places, so far as this may be necessary in the reasonable use of the de- mised premises, and, like any other landowner expressly or impliedly inviting a person to enter on his land or on a certain part thereof, he is bound to exercise reasonable diligence, to make the premises safe for the person so entering thereon. On the same principle the landlord is liable for defects in such common «T See post, § 102, at note 555. McGinn v. French, 107 Wis. 54. 82 N. 4?8 See Thompson v. Clemens, 96 W. 724. Md. 196, 53 Atl. 919, 60 L. R. A. 580; 489 See ante, § 89 a. *«o See ante, § 89 h. J 98 LANDLORD'S OBLIGATIONS TOWARDS THIRD PERSONS. 665 approaches, or other places controlled by the landlord, to such persons, generally speaking, other than the tenant, as are right- fully in such places as having family; business or social relations with the tenant, the lease being in effect an implied invitation to them to enter on such places, as it is to the tenant himself .*'*i It is impossible to state v?ith exactness the classes of persons to whom the landlord is thus under an obligation to keep safe the passageways or other places used in common by the tenants, as having impliedly invited them to use such places. It seems that they should be such persons as the landlord would have reason, in view of -the nature of the premises leased to the individual tenants, the circumstances of the leasing, and the nature of the place in question, to expect to be in such place. This is perhaps the general tendency of the decisions, though as a matter of fact the question has rarely arisen whether a particular person bore such a relation to the tenant that he was within the scope of the landlord's implied invitation to use the common passageways or other common places. There is no doubt that a member of the family of one of the tenants, residing on the leased premises, is entitled to recover against the landlord in ease of injuries from defects in a common passageway or other means of approach,*'* 4»i See Leydecker V. Brintnall, 158 126 Mass. 374; Widlng v. Pennsyl- Maas. 292, 33 N. E. 399; Marwedel vania Mut. Life Ins. Co., 20 S. D. 279, y. Cook, 154 Mass. 235, 28 N. B. 140; 104 N. W. 239; ghoninger Co. v. Harrinson v. Jelly, 175 Mass. 292, 56 Mann, 219 111. 242, 76 N. E. 354, 3 L. N. B. 283; Hamilton v. Taylor, 195 R. A. (N. S.) 1097; Looney v. Mo- Mass. 68, 80 N. B. 592; Miles v. Lean, 129 Mass. 33, 37 Am. Rep. 295; Janvrin, 196 Mass. 431, 82 N. E. Coupe v. Piatt, 172 Mass. 458, 52 N. 708, 124 Am. St. Rep. 575; Mc- E. 526, 70 Am. St. Rep. 293; Cana- Glnley v. Alliance Trust Co., 168 van v. Stuyvesant, 7 Misc. 113, 27 Mo. 257, 66 S. W. 153, 56 L. R. A. N. Y. Supp. 413; Schmidt v. Cook, 334; GillTon v. Reilly, 50 N. J. Law, 12 Misc. 449, 33 N. Y. Supp. 624. 26, 11 Atl. 481; Brady v. Valentine, 492McGinley v. Alliance Trust Co., 3 Misc. 20, 21 N. Y. Supp. 766; 168 Mo. 257, 66 S. W. 153, 56 L. R. A. Brugher v. Buchtenkirch, 29 App. 334; Wessel v. Gerken, 36 Misc. 221, DiT. 342, 51 N. Y. Supp. 464; Burner 73 N. Y. Supp. 192; Looney v. Mc- T. Higman & Skinner Co., 127 Iowa, Lean, 129 Mass. 33, 37 Am. Rep. 295; 580, 103 N. W. 802; Burke v. Hulett, Dollard v. Roberts, 130 N. Y. 269, 29 216 111. 545, 75 N. B. 240; Gleason v. N. B. 104, 14 L. R. A. 238; Canavan Boehm, 58 N. J. Law, 475, 34 Atl. 886, v. Stuyvesant, 7 Misc. 113, 27 N. Y. 32 L. R. A. 645; Readman v. Conway, Supp. 413; Schmidt v. Cook, 12 Misc. 666 PHYSICAL, CONDITIONS. § 9g and likewise on account of defects in platforms or yards intended for general use by the tenants of the building and their fam- ilies,*83 though this might not, it seems, be the case, if the prem- ises were such that the landlord could not have anticipated their use for residence purposes. So the landlord is liable for injuries to an employee of one of his tenants caused by defects in a common passageway,*"* or in another place used in common by the tenants, and which the tenant 's employees might naturally be expected to use.*"'' In the case of a lease of premises which might be expected to be used for business purposes, a customer or other person, approaching such premises by a common passage- way for purposes connected with the business conducted on the premises, would be entitled to assert a liability against the land- lord if the passageway were unsafe,*"^ and the same right would 449,33 N. Y. Supp. 624; Schwandt v. sher, 195 Mass. 281, 81 N. B. 191; Metzger Linseed Oil Co., 93 111. App. Hess v. Hinkson's Adm'r, 29 Ky. 365. Law Rep. 762, 96 S. W. 436. Boarders and lodgers can assert 494 Harrinson v. Jelly, 175 Mass. Buch liability. Coupe v. Piatt, 172 292, 56 N. B. 283; Shoninger Co. v. Mass. 458, 52 N. E. 526, 70 Am. St. Mann, 219 III. 242, 76 N. E. 354, 3 Rep. 293. L. R. A. (N. S.) 1097. In McGinley v. Alliance Trust Co. 495 One requested by a tenant to 168 Mo. 257, 66 S. W. 153, it was held go on a platform on the roof which to be a question for the jury whether was used in common by the tenants, the children of a tenant, who were to da some work there for the ten- sitting on a common stairway eating ant (shaking fugs), was, though their lunch, were making such a use working gratuitously, in effect a of the stairway as the landlord had servant or agent of the tenant, and a right to anticii)ate, so as to render was entitled to recover for injuries him liable. from defects in the common plat- 493 Schmidt v. Cook, 12 Misc. 449, form. Wilcox v. Zane, 167 Mass. 302, 33 N. Y. Supp. 624 (injury to ten- 45 N. E. 923. ant's child playing In yard of tene- 496 Miller v. Hancock [1893] 2 Q. ment house); Canavan v. Stuyves- B. 177; Readman v. Conway, 126 ant, 7 Misc. 113, 27 N. Y. Supp. 413 Mass. 374 (semble). So a letter car- (ditto). See Moynlhan v. Allyn, rier, falling Into an open elevator 162 Mass. 270, 38 N. B. 497. shaft while entering the hallway to So the landlord Is liable to a mem- leave mail for one of the tenants, can ber of a tenant's family for injuries recover against the landlord. Gor- caused by a defective water closet don v. Cummlngs, 152 Mass. 513, 2b controlled by the landlord and open N. E. 978, 9 L. R. A. 640, 23 Am. St. to the use of the various tenants and Rep. 846. their families. Domenicis v. Flei- I 98 LANDLORD'S OBLIGATIONS TOWARDS THIRD PERSONS. 667 exist in favor of tradesmen delivering goods on premises used for residence purposes.*^'' Likewise a sublessee or his employee, or a member of his family, would be so entitled,*** but not, it seems, if the sublease was forbidden by the terms of the lease, since the landlord could not, in that case, have anticipated the pres- ence of such persons. A social guest of the tenant has likewise been regarded as entitled to assert this liability on the part of the landlord,**^ and a peace officer, summoned to make an arrest, has been decided to be entitled to an extraordinary degree of diligence on the part of the landlord in this respect.^"** To persons who are without any invitation, express or implied, from any of the tenants, to visit the building, and are without any invitation from the landlord to use the common approach or other place under his control, the landlord would seem to owe no duty as to the condition thereof. So it has been in one state decided that the landlord was not liable for injuries re- ceived by one while leaving a "wake" held on the occasion of the death of a person who was not an acquaintance of the persor: injured, and to which wake such person went without an invita- tion,5<'^ and it was, likewise, in the same jurisdiction, decided that one thus injured on a common approach could not recover *»T Wright V. Perry, 188 Mass. 268, spect, therefore, to all persons visit- 74 N. E. 328. And see Burke v. Hul- ing a tenant upon any lawful occa- ett, 216 111. 545, 75 N. B. 240; Ham- sion, the duty of the landlord is ilton V. Taylor, 195 Mass.' 68, 80 N. E. similar to that which he owes to the 592. ' tenant." Per Magle, J., in Gleason v. "When houses are rented for dwel- Boehm, 58 N. J. Law, 475, 34 Atl. lings which can only be reached by 886, 32 L. R. A. 645. the use of a common passage, the «88 See Jaffe v. Harteau, 56 N. Y. necessity of such use for the bene- 398, 15 Am. Rep. 438; O'Sullivan flcial enjoyment of the thing de- v. Norwood, 8 N. Y. St. Rep. 388 mised establishes a right to such use, (injury to sublessee's guest), and imposes an obligation upon the 499 Gleason v. Boehm, 58 N. J. Law, landlord to take reasonable care to 475, 34 Atl. 886, 32 L. R. A. 645; have and maintain the passage safe Hilsenbeck v. Guhring, 131 N. Y. 674, for such use. But the use of such 30 N. E. 580; Brady v. Valentine, 3 rooms for dwellings equally necessi- Misc. 20, 21 N. Y. Supp. 766; Henkel tates the use of the passage by v. Murr, 31 Hun (N. Y.) 28. tradesmen in delivering goods, by r.00 See post, note 507. persons having other business with soi Hart v. Cole, 156 Mass. 475, 31 the occupant, or by those who visit N. E. 644, 16 L. R. A. 557. him for social reasons. With re- 668 PHYSICAL CONDITIONS. | gg if he was going to see one of" the tenants, his brother, merely on his own business, to try to borrow money from him, without any invitation, express or implied, to call for such a purpose, he being in such case a "mere licensee. "^"2 These decisions are based on the view that the landlord is liable for defects in a common approach only to persons coming thereon by reason ot an invitation, express or implied, given by one of the tenan, to visit the part of the building in the tenant's possession, and not to persons visiting the tenant as "mere licensees." This seems the equivalent of a statement that the landlord owes a duty towards third persons visiting the tenant, as regards 1 condition of such approach, only when the tenant himself owes a duty as regards the condition of the leased premises them- selves.503 This is perhaps as satisfactory a criterion for de- termining the persons to whom the landlord owes a duty of care as any which could be suggested. It would, in England, and any other jurisdiction in which a social guest is regarded as a mere licensee,^"* leave such guest without any redress against COS Ganley v. Hall, 168 Mass. 513, social. In this case it is said, per 47 N. E. 416. Knowlton, J., that "the duty of the 503 In Plummer v. Dill, 156 Mass. defendant to keep the platform safe 426, 31 N. B. 128, 32 Am. St. Rep. for the tenant, and for those claim- 463, It was held that there could be ing under him, grew out of the con- no recovery by one who went into a tract of hiring. It was a part of the building "to inquire about a matter contract that the platform should be which concerned herself alone" and kept reasonably safe for the tenant "not to transact with any occupant of for use in connection with his tene- the building any kind of business in ment. The contract impliedly includ- which he was engaged, or in the ed, not only the tenant himself, but transaction of which the building the members of his family, and his was used or designed to be used," servants and agents who might she being a "mere licensee." rightfully occupy and use the tene- 504 See Burdick, Torts, 457. ment with him. It included board- In Coupe V. Piatt, 172 Mass. 458, ers and lodgers, if, in a proper use 52 N. E. 526, 70 Am. St. Rep. 293, of the tenement, such persons might the landlord was held to be liable be received there by the tenant. It for injuries to one passing over a included all persons who, in connec- platform used in common by the tion with the use of the tenement by tenants when "on a visit to one of the tenant, might properly pass over the tenants, made on his express in- the platform under the express au- Tltatlon to come on a particular day thority of the tenant and in his for a particular purpose." It does right. To all such persons, by not appear whether the purpose was virtue of her contract with the ten- I 98 LANDLORD'S OBLrlGATIONS TOWARDS THIRD PERSONS. 669 the landlord for a defective condition not constituting a trap or pitfall.. Even to members of the tenant's family the landlord is not liable for defects in a part of the building on which he had no reason to expect the tenant or members of his family to enter, never having given an express or implied invitation to them to use such places. They are at most, with reference there- to, mere licensees.^"*" The extent of the landlord's liability to persons such as those above named, rightfully in the common passages or other places used in common by the tenants, is the same as that under which he stands as regards the tenants themselves, and this has been previously considered at length.^o^ He is bound merely to exer- cise reasonable diligence to discover and remedy defects,^"® and he is not bound to change the mode of construction of such places from that which existed at the time of the demise,^'''^ nor ant, the landlord owed the same 74 N. E. 597. In Wlding v. Penn- duty that she owed to the tenant sylvania Mut. Life Ins. Co., 20 S. personally, to keep the platform D. 279, 104 N. W. 239, it was held reasonably safe." This language, in that if the children of the various, suggesting that the landlord's lia- tenants of the building were in the bility in such a case is contractual, habit of playing on the parches an- Is, it is submitted, incorrect, and as nexed to the various apartments, a matter of fact this very case was without reference to whether any an action of tort and not of con- particular porch was adjacent to the tract. The law does not imply a apartment of the child's parents, a contract by the lessor as to the con- child of a tenant was not a mere dition of the passageways and ap- licensee while on a porch adjacent to preaches, that is, there is no liabil- the apartment of another tenant. Ity in quasi contract; nor, it would =»5 See ante, § 89. seem, Is the making of the lease bob Gillvon v. Reilly, 50 N. J. Law, ground for an implication in fact of 26, 11 Atl. 481; Jucht v. Behrens, 26 a contract such as is mentioned in N. Y. St. Rep. 690, 7 N. Y. Supp. 195 ; the opinion. Moreover, even had Evers v. Weil, 43 N. Y. St. Rep. 336, there been an express and explicit 17 N. Y. Supp. 29; Idel v. Mitchell, contract of the character mentioned, 158 N. Y. 134, 52 N. B. 740 ; Lynch v. it seems questionable, in view of the Swan, 167 Mass. 510, 46 N. B. 51. Massachusetts cases adverse to the And according to O'Malley v. Twen- right of the beneficiary of a contract, ty-Flve Associates, 178 Mass. 555, 60 not a patty thereto, to sue thereon, N. E. 387, he is under no obligation whether any person other than the to discover defects existing at the tenant could avail himself thereof. time of the demise. See ante, note B04a Flaherty v. Nieman, 125 Iowa, 369. 456, 101 N. W. 280; Dalin v. Worces- bot Roche v. Sawyer, 176 Mass. 71, ter Consol. St. R. Co., 188 Mass. 344, 57 N. E. 216. In Learoyd v. Godfrey, 670 PHYSICAL, CONDITIONS. is he bound, as a general rule, to light passageways in order to make them safe.^''® It is a defense to an action for injuries to a third person, as well as to one for injuries to the tenant, that there was contributory negligence on the( part of the person injured,B09 as it is apparently, that the person injured, though he had a right to go for some purposes upon the place where the accident hap- pened, had no right to be there for the particular purpose for which he was there.s^"' ^^^ As regards the condition of an approach or platform used by a single tenant in connection with the premises leased to him, the landlord owes to a third person who is there by the tenant's 138 Mass. 315, the landlord was held liable for injuries to an officer, sum- moned to make an arrest, caused by his falling into a well in the common passageway; and this is explained in the case of Jordan V. Sullivan, 181 Mass. 348, 63 N. E. 909; as follows: "The plain- tiff in Learoyd v. Godfrey, 138 Mass. 315, did not enter on the common passageway on the invitation of the tenant alone, but he came there as a public officer in the discharge of his duty. As the passageway was one within the control of the defendant and was the way provided by him for access to the tenement let by him, to which the plaintiff's duty called him, the defendant was under the duty of using due care to make the way safe as against the plain- tiff, even if it were necessary to change the construction, although he was not under such an obligation as against a tenant and those coming under the tenant's rights." The cor- rectness of the decision is perhaps open to question. In Burner v. Higman & Skinner Co., 127 Iowa, 580, 103 N. W. 802, the landlord was held liable for an in- Jury caused by failure to guard an elevator shaft. Such a "trap" in a passageway might well be regarded as demanding a light to insure a moderate degree of safety to per- sons using the hallway, and in this case there was no light. (See ante, at note 373). The court bases the landlord's liability upon his obliga- tion to keep the elevator under his control in a safe condition. But it was the passageway rather than the elevator which was unsafe, and the decision seems not in accord with the view that the landlord is under no obligation to change the construc- tion. 508 Gleason v. Boehm, 58 N. J. Law, 475, 34 Atl. 886, 32 L. R. A. 645; Hil- senbeok v. Guhring, 131 N. Y. 674, 30 N. E. 580. See ante, § 89 e. 609 Vorrath v. Burke, 63 N. J. Law, 188, 42 Atl. 838; Gleason v. Boehm, 58 N. J. Law, 475, 34 Atl. 886, 33 L. R. A. 645; Robinson v. Crimmins, 120 App. Div. 250', 104 N. Y. Supp. 1076; McCarthy v. Foster, 156 Mass. 511, 31 N. E. 385; ChicaKO, P. & St, L. R. Co. V. Boyle, 119 111. App. 303. See Hamilton v. Taylor, 195 Mass. 68, 80 N. E. 592. 510, 511 See ante, § 89 i. J 99 LANDLORB'S OBLIGATIONS TOWARDS THIRD PERSONS. 671 invitation as great a degree of diligence at least as he owes the tenant. Conceding that the landlord is not liable for injuries to the tenant himself caused by defects in a passageway leading to the latter 's apartment alone,^^^ g, different view might per- haps be taken as regards injuries to one visiting the tenant so caused, since the landlord has in effect invited him to use the passageway, and there is no duty on him to make repairs. The landlord is liable, it seems, if by active intervention he makes an approach to the premises unsafe, though he is not bound to keep it in repair.^i^ § 99. Persons using appliances under landlord's control. On the same principle on which the landlord is held liable for injuries to persons by defects in places still under the landlord's control, though used by his various tenants, the landlord is liable for injuries to persons who are, in right of the tenant, using appliances under his control, caused by defects in such ap- pliances. So the landlord has been held liable for injuries to one using, in right of the tenant, an elevator intended for use by tb various tenants of the building and by other persons having rea- son to visit the tenant, the person injured not being a trespasser or "mere licensee. "^i* And the landlord has been held liable for injuries, caused by defects in a hoisting machine intended for the use of the tenants, to an employee of a tenant or a person properly using the machine for the delivery of goods to a ten- ant.s^^ But, as in the case of dangerous places, the landlord is liable for injuries from dangerous appliances only if he failed to exercise reasonable diligence to discover and remedy the defects,^!^ 512 See ante, § 89 j. v. Pord, 189 111. 430, 59 N. B. 953, 613 See Brunker v. Cummins, 133 52 L. R. A. 930, 82 Am. St. Rep. 464; Ind. 443, 32 N. E. 732; Camp v. Rhodlus v. Johnson, 24 Ind. App. Wood, 76 N. Y. 92, 32 Am. Rep. 282; 401, 56 N. E. 942; Rosenberg v. Mellen v. Morrill, 126 Mass. 545, 30 Schoolherr, 116 App. Div. 289, 101 Am. Rep. 695. N. Y. Supp. 505; Marker v. Mitchell, 5" Stewart v. Harvard College, 94 54 Fed. 637; Olson v. Schultz, 67 Mass. (12 Allen) 58; GrifEen v. Man- Minn. 494, 70 N. W. 779, 36 L. R. A. ice, 166 N. Y. 188, 59 N. E. 925, 52 790, 64 Am. St. Rep. 437. L. R. A. 922, 82 Am. St. Rep. 630; "« O'Malley v. Twenty-Five Asso- Bogendoerfer v. Jacobs, 97 App. Div. ciates, 178 Mass. 555, 60 N. B. 387. 355, 89 N. Y. Supp. 1051; Springer 5i6 Olson v. Schultz, 67 Minn. 494, 672 PHYSICAL CONDITIONS. § 10( and the person injured must no doubt have had a right to use the appliance, and must have been free from contributory negligence, in order to recover .^^'^ The landlord is under no obligation to change the plan of construction iii order to make the appliance safe.^i* The landlord should not, it seems, be relieved from liability to third persons for injuries caused by the nonrepair of appliances under his control by the fact that the lessee has contracted to keep such appliances in repair, as he would not be by a contract to that effect made by a third person.^i^ Nor can he relieve himself from such liability to third persons by inserting in the lease a clause exempting him from liability for any injuries caused by a particular appliance, such third person not being a party to the lease and consequently not bound by such a pro- vision.520' 522 § 100. Statutory obligations. As before stated^^s there are in one or two states statutory 70 N. W. 779, 36 L. R. A. 790, 64 Am. Iowa, 580, 103 N. W. 802, ante, note St. Rep. 437; Rice v. Trustees of Bos- 507, where the landlord was held ton University, 191 Mass. 30, 77 N. E. liable for failure to guard the shaft 308; Russo v. McLaughlin, 51 Misc. used for an elevator under his con- 34, 99 N. Y. Supp. 839. trol though there was apparently no In the case of passenger elevators, guard for the shaft at the time of however, a higher degree of diligence making the lease. Such a shaft in a is by some cases, required, the owner hallway would seem to impose the and operator of the elevator being obligation at least of keeping the regarded as a carrier of passengers, hallway lighted, which was not done See 10 Am. & Eng. Enc. Law (2d in this case. See ante, at note 373. Ed.) 945; Springer v. Ford, 189 111. =19 See Poor v. Sears, 154 Mass. 430, 59 N. E. 953, 52 L. R. A. 807, 82 539, 28 N. E. 1046, 14 L. R. A. 123, Am. St. Rep. 464; Marker V. Mitchell, 26 Am. St. Rep. 272, and post, af 54 Fed. 637, supra. notes 640-643 a. 517 Stewart v. Harvard College, 94 520-322 Springer v. Ford, 189 111. Mass. (12 Allen) 58; Rhodius v. 430, 59 N. E. 953, 52 L. R. A. 930, 82 Johnson, 24 Ind. App. 401, 56 N. E. Am. St. Rep. 464; Shoninger Co. t. 942; Freeman v. Hunnewell, 163 Mann, 219 111. 242, 76 N. E. 364, 3 Mass. 210, 39 N. E. 1012; Missell v. L. R. A. (N. S.) 1097; Griffen t. Lennox (C. C. A.) 156 Fed. 347. Manice, 166 N. Y. 188, 59 N. B. 925, 518 Freeman v. Hunnewell, 163 52 L. R. A. 922, 82 Am. St. Rep. 630. Mass. 210, 39 N. B. 1012. But see 523 gee ante, § 87 c. Burner v. Hlgman & Skinner Co., 127 § 100 lANDLORD'S OBLIGATIONS TOWARBS THIRD PERSONS. 673 obligations upon the landlord to make repairs, and failure to comply with such an obligation may render him liable to a person on the premises injured by the lack of repair. In several cases the question has arisen whether a statutory obligation to furnish fire escapes requires this to be done by the landlord or the tenant. It has been held that a statute making it the duty of "any agent or owner of any factory, workshop, tenement house, inn or public house" to provide fire escapes, im- posed such duty on one occupying a part of a building, as a tenant thereof, and using such part for factory purposes, and not upon the owner of the building."** And a similar construc- tion was placed upon a statute imposing the duty upon owners, superintendents or managers of factories, the owners or keepers of hotels, and the owners or landlords of tenement houses and their agents,"25 and so it has been held that the proprietor of a hotel, and not the owner of the hotel biulding, was bound to provide the escapes under a statute requiring this to be done by "the owner, proprietor, lessee or keeper of every hotel, boarding and lodging house, school house, opera house, theatre, music hall, factory or office building. ""2* On the other hand it was held that the owner of the building was bound to erect fire escapes when the statute provided that all buildings over a certain height should be provided with a fire escape and that the municipal authorities should serve notice on "the owner or owners, trustees, lessee or occupant" to erect such escapes, and further provided that all such buildings thereafter erected should be, upon or before their completion, provided with fire escapes,®27 and the same construction was placed upon a statute requiring every building, in which any manufacture or business is carried on, requiring the presence of workmen above the first story, as well as certain other classes of buildings, to be furnished with fire escapes, and providing that the municipal authorities should 524 Lee V. Smith, 42 Ohio St. 458, Co., 117 Tenn. 470, 101 S. W. 428, 51 Am. Rep. 839. 121 Am. St. Rep. 1002, to the same •"^zsschott V. Harvey, 105 Pa. 222, efCect. 51 Am. Rep. 201; Keely v. O'Conner, 627 Landgraf v. Kuh, 188 III. 484, 106 Pa. 321. 59 N. E. 501. But see, as to the con- 526 Johnson v. Snow, 102 Mo. App. struction of the Illinois Statute, Mc- 233, 76 S. W. 672, 10 L. R. A. 254. Culloch v. Ayer, 96 Fed. 178. And see Adams v. Cumberland Inn L. and Ten. 43. 674 PHYSICAL CONDITIONS. § 101 notify the occupant and also "the owner thereof, if known," of the need of such escape.^^* The landlord is not liable for injuries to a tenant's employee caused by his inability to make iisP of the fire escape owing to the action of another tenant in locking the door which furnished access to the fire escape.''*'' In New York there are rigid statutory requirements as to the mode of construction and maintenance of tenement houses for the protection of the life and health of the inmates and defining the size of the halls, stairways and rooms, the character of open- ings for air and light and the materials for the construction of various parts of the building.^so C. To Peesons Owning or Using Neighboring Property or Highway. § 101. General rule of liability. Having considered the question of the landlord's liability to a tenant for injuries resulting from physical conditions exist- ing on or near the premises leased, and also of his liability for such injuries to a third person rightfully on the premises leased, or in a place adjacent thereto which is under the land- lord's control, it remains to consider his liability for such injuries to a third person who is not within this description. Such class of persons, not bearing any relation to the landlord (or to the tenant, based either on contract or conveyance, or on an invitation to use the landlord's or tenant's property, may be conveniently designated by the term "strangers," ancl they are necessarily either the owners or occupants of nearby property, persons temporarily on such property, or persons on a neighboring highway or other public place. The rule generally applicable in determining the liability of the lessor^si of land for injuries to strangers occurring during szs Carrigan v. Stillwell, 97 Me. who is not the lessor, but merely a 247, 54 Atl. 389, 61 L. R. A. 163. transferee of the reversion, see post, 629 Sewell V. Moore, 166 Pa. 570, § 104. 31 Atl. 370. If the lease is merely colorable, 530 N. y. Laws 1901, c. 334, as the nominal lessor retaining the full amended by Laws 1903, c. 179 (Ten- possession and control of the prem- ement House L&w). ises as before, the making of the 631 As to the liability of a landlord lease does not affect his liability for § 101 LANDLORD'S OBLIGATIONS TOWARDS THIRD PERSONS. 575 the tenancy, as a result of the condition of the premises, or of the use made thereof by the tenant, is that he is liable for injuries caused by conditions which existed at the time of the demise,^^^ and for injuries arising from the character of the use of the premises made by the tenant, if this use can be re- garded as having been intended or contemplated by the lessor,^** while he is not liable for injuries caused by a condition on the premises arising after the demise,^^* or for injuries caused by the tenant's mode of using the premises, if he cannot be regarded as having connived at or authorized the creation of such condi- tions or such mode of use.^^^ The rule as to the lessor's liability, above stated, that he is liable for a condition existing at the time of the demise or subsequent injuries to strangers, ers of Hudson County v. WoodclifC See Spaine v. Stiner, 51 App. Div. Land Imp. Co., 74 N. J. Law, 355, 65 481, 64 N. Y. Supp. 655, afd., without Atl. 844. opinion, 168 N. Y. 666, 61 N. E. 1135. ss* Wolf v. Kilpatrick, 101 N. Y. 532 Todd V. Flight, 9 C. B. (N. S.) 146, 4 N. E. 188, 54 Am. Rep. 672; 377; Durant v. Palmer, 29 N. J. Law, Curran v. Flammer, 49 App. Div. 544; Tomle v. Hampton, 129 111. 379, 293, 62 N. Y. Supp. 1061; Shlndel- 21 N. E. 800; Davenport v. Ruck- beck v. Moon, 32 Ohio St. 264, 30 Am. man, 37 N. Y. 568; Dalay v. Savage, Rep. 584; Johnson v. McMillan, 69 145 Mass. 38, 12 N. E. 841, 1 Am. St. Mich. 36, 36 N. W. 803; Adams v. Rep. 429 ; Matthews v. De Groff, 13 Fletcher, 17 R. I. 137, 20 Atl. 263, 33 App. Div. 356, 43 N. Y. Supp. 237; Am. St. Rep. 859; Fehlauer v. St. Waterhouse v. Joseph Schlitz Brew. Louis, 178 Mo. 635, 77 S. W. 843; Co., 12 S. D. 397, 81 N. W. 725, 48 L. Mylander v. Beimschla, 102 Md. 689, R. A. 157, 76 Am. St. Rep. 616; Isham 62 Atl. 1038, 5 L. R. A. (N. S.) 316. v. Broderick, 89 Minn. 397, 95 N. W. sss Kalis v. Shattuck, 69 Cal. 593, 224; Mylander v. Beimschla, 102 Md. 11 Pac. 346, 58 Am. Rep. 568; Baker 689, 62 Atl. 1038, 5 L. R. A. (N. S.) v. Allen, 66 Ark. 271, 50 S. "W. 511, 74 316. Am. Dec. 93; Jansen v. Varnum, 89 B33Lufkin V. Zane, 157 Mass. 117, 111. 100; Little Schuylkill Nav. Co. v. 31 N. B. 757, 17 L. R. A. 251, 34 Am. Richards, 57 Pa. 142, 98 Ain. Dec. St. Rep. 262; Boston Beef Packing 209; Saltonstall v. Bunker, 74 Mass. Co. V. Stevens, 12 Fed. 279; Wunder (8 Gray) 195; Metropolitan Sav. V. McLean, 134 Pa. 334, 19 Atl. 749, Bank v. Manion, 87 Md. 68, 39 Atl. 19 Am. St. Rep. 702; Jackman v. 90; Lufkin v. Zane, 157 Mass. 117, Arlington Mills, 137 Mass. 277; 31 N. E. 757, 17 L. R. A. 251, 34 Am. House V. Metcalf, 27 Conn. 631; St. Rep. 262; Edgar v. Walker, 106 Grady v. Wolsner, 46 Ala. 381, 7 Am. Ga. 454, 32 S. E. 582; Louisville & Rep. 593; Fleischner v. Citizens' N. Terminal Co. v. Jacobs, 109 Tenn. Real Estate Inv. Co., 25 Or. 119, 35 727, 72 S. W. 954, 61 L. R. A. 188. Pac. 174; Board of Chosen Freehold- 676 PHYSICAL CONDITIONS. § IQI for any use of the premises by the tenant which may have been contemplated by him, and not otherwise, though simple and reasonable in itself, is sometimes difficult of application. The simplest case is when the injury results from a condition which existed on the premises at the time of the lease, without refer- ence to the mode in which the tenant uses the premises, or to whether he uses them at all, as when the lessor is held liable for injuries caused by the fall of a chimney, owing to the structural defects existing at the time of the demise, or for those caused by the defective condition at that time of the fastenings 6f the cover to a coal hole in the sidewalk. In such a case a condition which existed at the time of the demise is evidently the sole cause of the injury. A more difficult question arises when the particular mode of use which the tenant makes of the premises results in injury to a stranger. In such a case a condition existing at the time of the demise has ordinarily some connection with the injury, since it is in the course of the utilization of the prem- ises in the condition in which they then were that the injury oc- curs. But the mere fact that the tenant causes the injuries while using the premises in the condition in which they were at the time of the demise is not sufficient to impose any liability on the lessor, but for this purpose it is necessary that the injuries be directly chargeable to such condition. That is, the lessor is liable if the condition of the premises at the time of the demise is such that, when used as it was apparently intended by the parties to the lease that they should be used, injuries to third persons result,^*^ while on the other hand he is not liable merely S36 Boston Beef Packing Co. v. Mass. 277), or where "the owner Stevens, 12 Fed. 279; Wunder v. leases premises which are a niii- McLean, 134 Pa. 334, 19 Atl. 749, 19 sance or in the nature of things must Am. St. Rep. 702; Fleischner v. Citl- become so by their user" (Maenner zens' Real Estate & Inv. Co., 25 Or, v. Carroll, 46 Md. 216; Metropolitan 119, 35 Pac. 174; Rex v. Pedly, 1 Sav. Bank v. Manion, 87 Md. 68, 39 Adol. & E. 822. Atl. 90), or where "the structure was So it is said that the lessor is lia- in such a condition that It would be ble where "the houses, drains and likely to become a nuisance in the wells" in questions "were adapted to ordinary and reasonable use of the be used and intended to be used in same for the purpose for which it the manner in which they were was constructed and let" (Kalis v. used," thereby producing the injury Shattuck, 69 Cal. 593, 11 Pac. 346, 58 (Jackman v. Arlington Mills, 137 Am. Rep. 568). § 101 LANDLORD'S OBLIGATIONS TOWARDS THIRD PERSONS. 677 because the premises are susceptible of a use which may cause injuries to others, and the tenant makes such use, this not being such a use as he had reason to contemplate.^*^ Applying this distinction, the lessor has been held liable for the frightening of a horse by the tenant's operation of a waterwheel in a mill near the highway, the wheel being "in the same condition as when the lease was made," and it being "used in the manner con- templated and intended by the parties,""*^ and likewise for injury to goods on adjoining premises caiised by the tenant's lighting of a fire in a cooking stove, placed by the lessor in such a position that a fire therein would have that effect,"** and for injuries to adjoining^property from the use of a kiln erected on the premises by the lessor for drying lumber."*" On the other hand it was decided that a lessor was not liable for injuries 637 See Gould v. Stafford, 91 Cal. 146, 27 Pac. 543; Kalis v. Shattuok, 69 Cal. 593, 11 Pac. 346, 58 Am. Rep. 568; Edgar v. Walker, 106 Ga. 454, S2 S. E. 582; Louisville & N. Termi- nal Co. T. Jacobs, 109 Tenn. 727, 72 S. W. 954, 61 L. R. A. 188. "If a landlord lets premises not in themselves a nuisance, but -which may or may not become a nuisance, and it is entirely at the option of the tenant so to use them or not, and the landlord receives the same benefit whether they are or not, he cannot be made responsible for the acts of his tenant." Per Creswell, J., in Rich v. Basterfield, 4 C. B. 783. "The landlord will not be liable for the use of the premises in such a way as to do harm merely because there was a manifest possibility ot their being used in such a way. The liability will stop with the tenant whose intervening wrong is the im- mediate cause of the damage." Per Holmes, J., in Clifford v. Atlantic Cotton Mills, 146 Mass. 47, 15 N. E. 84, 4 Am. St. Rep. 279. "If the prem- ises are a nuisance, not in them- selves, but in consequence of the use made of them by the tenant, then the question is whether this use is authorized by the landlord. If the premises can be used by the tenant in the manner intended by the land- lord, either as shown by the con- struction of the premises, or by the terms of the lease, or by other evi- dence, without becoming a nuisance, the landlord is not liable for the acts or neglect of the tenant which create the nuisance. If the ten- ant creates -the nuisance without authority of the landlord, and after he has entered into occupation as tenant, the landlord is not liable." Per Field, C. J., in Lufkin v. Zane, 157 Mass. 117, 31 N. E. 757, 17 L. R. A. 251, 34 Am. St. Rep. 262. "The landlord is not liable unless he knew the use to which the prem- ises would be applied, and that such use would be a nuisance." Muller V. Stone, 27 La. Ann. 123. S3S House V. Metcalf, 27 Conn. 631. 538 Grady v. Wolsner, 46 Ala. 381, 7 Am. Rep. 593. 54oHelwigv. Jordan, 53 Ind. 21. 21 Am. Rep. 189. 678 PHYSICAL CONDITIONS. § IQl caused by smoke issuing from a chimney, if the injuries could have beeu avoided by the tenant's use of a particular kind of fuel,5*i or for injuries caused by the slippery condition of the pavement, resulting from the flow of water from a gutter on the premises, which condition would not have existed had the tenant refrained from pouring water into the gutter during the preva- lence of freezing weather. ^^^ Without reference to the condition of the premises at the time of the demise, if one demises them to be used lor a par- ticular purpose, having reason to believe that this use of the premises is likely to injure a stranger, the lessor is liable for such injuries. This case differs from that previously referred to merely in the fact that the lessor 's complicity in the noxious use is inferred, not from the condition of the premises which renders such usepossible and probable, but from the lessor's knowledge of such intended use when placing the premises in the lessee's con- trol. Accordingly one leasing premises for the purpose of making boilers is, it is said, liable if he knows, or has reason to believe, that the making of boilers on the premises is likely to prove injurious to an adjoining owner,^*^ and one leasing premises for use as a bawdy house is liable to the adjoining owner injured by such use.s** So one leasing a floor of a building for ware- house purposes, knowing it to be too weak to be safely used for such purposes, is liable to. the tenant of a lower floor injured by the giving away of the upper floor.^^s It has even been decided that one leasing premises to another for the purpose of blasting rock therefrom is liable for an interference with an easement of support to which such premises are subject, result- 5ii Rich V. Basterfield, 4 C. B. 783. 48 Am. Rep. 272. But it was held This case is, however, questioned in that a lease for such purpose did not Harris v. James, 45 Law J. Q. B. render the lessor liable if the house 545, and with reason, it would seem, was licensed, since it was not in such 542 Gardener v. Rhodes, 114 Ga. 929, case a nuisance per se; and though 41 S. E. 63, 57 L. R. A. 749. Com- so conducted as to be a nuisance, pare post, note 586. he was not liable unless he renewed 543 Fish V. Dodge, 4 Denio (N. Y.) the lease or assented to such con- 311, 47 Am. Dec. 254. So where duct of it. Givens v. Van Studdi- premises were leased for use as a ford, 86 Mo. 149, 56 Am. Rep. 421. lime quarry. Harris v. James, 45 5*5 Brunswick-Balke Collender Co. Law J. Q. B. 545. v. Rees, 69 Wis. 442, 34 N. W. 732, 2 544 Marsan v. French, 61 Tex. 173, Am. St. Rep. 748. § 101 LANDLORD'S OBLIGATIONS TOWARDS THIRD PERSONS. 679 ing from such blasting.^^^" Furthermore the landlord, whether the original lessor or not, is liable, as would be any other person, if he aids or advises the tenant to create a condition on, or to make a use of, the premises, likely to injure a third person.^*' Not only when the injury arises exclusively from the use made of the premises by the tenant, is the lessor free from liability,'*'' but also when it is caused by the latter 's failure to repair defects arising after the time of the demise, this not being regarded as a result of the condition at the time of the demise within the rule of liability,'** and it is immaterial that the lessor knew that if the tenant failed to make -repairs as they became neces- sary, danger to third persons might arise.'*® Every lessor or vendor of property knows that. The lessor is obviously not liable for acts of the tenant on the premises, not abetted by him and having no connection whatever with the condition of the premises, as when the lessor throws or shoots missiles therefrom,"" or allows dangerous matter to escape therefrom."^ 545a Board of Chosen Freeholders of Hudson County v. Woodcliffe Land Imp. Co., 74 N. J. Law, 355, 65 Atl. 844. s« Baker v. Allen, 66 Ark. 271, 50 S. W. 511, 74 Am. St. Rep. 93; Riley V. Simpson, 83 Cal. 217, 23 Pac. 293, 7 L. R. A. 622; Twiss v. Baldwin, S Conn. 291, 23 Am. Dec. 339; Scott v. Bay, 3 Md. 431; Meadows v. Trues- dell (Tex. Civ. App.) 56 S. W. 932. 547 See ante, at note 535. 648 Russell v. Shenton, 3 Q. B. 449; Nelson v. Liverpool Brewery Co., 2 C. P. Div. 311; Borman v. Sandgren, 37 111. App. 160; Hull v. Sherrod, 97 111. App. 298; Frischberg v. Hurter, 173 Mass. 22, 52 N. E. 1086; Harris V. Cohen,. 50 Mich. 324, 15 N. W. 493; Ingwersen v. Rankin, 47 N. J. Law, 18, 54 Am. Rep. 109; Pope v. Boyle, 98 Mo. 527, 11 S. W. 1010; Gridley v. City of Bloomington, 68 111. 47; City of Lowell v. Spaulding, 58 Mass. (4 Cush.) 277, 50 Am. Dec. 775; Wolf V. Kilpatrick, 101 N. Y. 146, 4 N. E. 188, 54 Am. Rep. 672; Lindstrom v. Pennsylvania Oo. for Ins. on Lives & Granting Annuities, 212 Pa. 391, 61 Atl. 940. "9 See Deller v. Hofferberth, 127 Ind. 414, 26 N. E. 889; 2 Shearman & Redfield, Neg. § 708. 550 See Leonard v. Hornellsville, 41 App. Div. 106, 58 N. Y. Supp. 266; Walter v. Dennehy, 93 Mo. App. 7. 051 Langabaugh v. Anderson, 68 Ohio St. 131, 67 N. B. 286, 62 L. R. A. 948. The landlord is not liable for in- juries caused by the negligence of the tenant in leaving open an aper- ture in a sewer through ;which tide water consequently flows, to the in- jury of an adjoining owner, because this was done while the tenant was making repairs, towards which re- pairs the landlord had agreed with the tenant to pay a specified sum. Murray v. Richards, 83 Mass. (1 Al- len) 414. 680 PHYSICAL CONDITIONS. 103 The lessor's liability on account of conditions existing at the time of the lease is not affected by the fact that the tenant is also liable, as having failed to make necessary repairs, or as having used the premises while thus in a defective or dangerous eondition.s52 § 102. Theory of liability. The theory on which the lessor is held liable for injuries arising from a condition of the premises which existed at the time of the demise is ordinarily stated to be that such a condition, liable to cause injury to another, is a "nuisance," and that one whose land is subject to a nuisance cannot relieve himself from liability therefor by making a lease of the land.^^^ It appears to the 552 Durant v. Palmer, 29 N. J. Law, 544; Walsh v. Mead, 8 Hun (N. Y.) 387; Mancuso v. Kansas City, 74 Mo. App. 138; Joyce v. Martin, 15 R. I. 558, 10 Atl. 620, 2 Am. St. Rep. 295; Schwalbach v. Shinkle, Wilson & Kreis Co., 97 Fed. 483; Wunder v. McLean, 134 Pa. 334, 19 Atl. 749, 19 Am. St. Rep. 702; Poor v. Sears, 154 Mass. 539, 28 N. E. 1046, 14 L. R. A. 123, 26 Am. St. Rep. 272; Matthews v. DeGroff, 13 App. Div. 356, 43 N. Y. Supp. 237. 553 Roswell V. Prior, 12 Mod. 635, 1 Ld. Raym. 713, 2 Salk. 460; Todd v. Flight, 9 C. b; (N. S.) 377; Metro- politan Sav. Bank t. Manion, 87 Md. 68, 39 Atl. 90; Shindelbeck v. Moon, 32 Ohio St. 264, 30 Am. Rep. 584; Wenzler v. McCotter, 22 Hun (N. Y.) 60; Fleischner v. Citizens' Real Es- tate Co., 25 Or. 119, 35 Pac. 174; O'Connor v. Andrews, 81 Tex. 28, 16 S. W. 628; Kalis v. Shattuck, 69 Cal. 593, 11 Pac. 346, 58 Am. Rep. 568; City of Peoria v. Simpson, 110 111. 294, 51 Am. Rep. 683; Tomle v. Hampton, 129 111. 379, 21 N. E. 800; Uggla V. Brokaw, 117 App. Div. 586, 102 N. Y. Supp. 857. A somewhat analogous rule has been applied in the case of a convey- ance in fee simple, one who creates a nuisance being held liable for its continuance even after he makes such a conveyance. See Clerk & Lindsell, Torts (3d Ed.) 393; Joyce, Nuisance, § 454; Dorman v. Ames, l2 Minn. 451; Plumer v. Harper, 3 N. H. 89, 14 Am. Dec. 333; Curtice v. Thompson, 19 N. H. 471; Eastman v. Amoskeag Mfg. Co., 44 N. H. 143, 82 Am. Dec. 201; Blunt v. Aikin, 15 Wend. (N. Y.) 522, 30 Am. Dec. 75. In New York it is held that the gran- tor is not liable for the nuisance unless he affirms and upholds the nuisance, as by covenants for the quiet enjoyment of the premises in the particular condition which con- stitutes the nuisance. Waggoner v. Jermaine, 3 Denio (N. Y.) 306, 45 Am. Dec. 474; City of Albany v. Cun- liff, 2 N. Y. (2 Comst.) 165, 174. And to the same effect, apparently, see East Jersey Water Co. v. Bigelow, 60 N. J. Law, 201, 38 Atl. 631. In the case of a lease the receipt of rent has been regarded as equivalent to such a covenant for the purpose of im- posing liability on the lessor. City of Albany v. Cunllff, 2 N. Y. (2 I 102 LANDLORD'S OBLIGATIONS TOWARDS THIRD PERSONS. 681 present writer that while in some cases the liability of the lessor to a stranger by reason of conditions on the property at the time i)i the lease is properly based on the theory of nuisance, in others it may more properly be based on the theory of negligence. The word "nuisance" is not infrequently used in a sense so broad as to make it almost equivalent to the word "tort"^®* but, it is conceived, a nuisance is properly either an interference with a "common right," such as that to use a highway, or an inter- ference with the enjoyment of property.^^^ Furthermore, in order that a nuisance may be created, there must be a more or less continuous interference with the enjoyment of a common right or of particular property, and the mere fact that, by reason of a condition existing in connection with onfe's property, some single isolated, and approximately instantaneous, event occurs, resulting in immediate injury to the person or property of an- other, does not, it is submitted, render such condition, or the property in connection with which it exists, a nuisance.^ssa Por instance, the fact that A's wall falls on B's property does not render that wall, as it existed before it fell, a nuisance. If if did, the peculiar result would frequently arise that whether a particular condition of property involves a nuisance could not be discovered until that condition ceases to exist. Purthernioro, Comst.) 165, 174; Hanse v. Cowing, In Abbott's Law Dictionary sub 1 Lans. (N. Y.) 288. voce "Nuisance," the definitions of a 554 Thus, in Cooley, Torts (2d Ed.) nuisance as anything which injures 670, "actionable nuisance" is defined another are criticized, and it is said as "any thing wrongfully done or that "the notions presented by the permitted which injures or annoys term, properly used, seem to be, first, another in the enjoyment of his legal that there is some use of one's prop- rights." This definition is substan- erty or rights; and second, that it tially adopted by Mr. Jaggard (Torts, is carried beyond the limits which a 744). And see the numerous judi- just regard to the welfare of the cial definitions collected in Joyce, community or of individuals affected Nuisances, p. 2 et seg. prescribes." 555 "Nuisance is the wrong done to scsa "It appears to be of the essence a man by unlawfully disturbing him of a nuisance that there should be in the enjoyment of his property or, some duration of mischief. A wrong in some cases, in the exercise of a producing damage instantaneously, common right." Pollock, Torts (6th as in the case of an explosion, could Ed.) 385. See, also, Burdick, Torts, hardly be a nuisance." Bigelow, 395, for a substantially similar defl- Torts (7th Ed.) 299. oltlon. 682 PHYSICAL CONDTTIONS. § 102 if a particular condition existing: in connection with one 's prop- erty constitutes a unisance, merely because it results eventually in some catastrophe injuriously affecting others, there is no reason for the consideration of the question of negligence in connection with the owner's liability for such injuries, since the question of due care has no bearing on that of the existence of a nuisance.^5® But that the owner or occupant of land is not' subject to such an absolute liability, irrespective of negligence, for injuries to strangers, is unquestionable.^^'^ It may, more- over, be remarked that the w^ord "miisance" itself involves the idea of an actual present injury, and a private, as distinguished from a public nuisance, cannot exist, it is conceived, apart from a right of action in favor of some particular person or persons for tlu' recovery oi damages. But one cannot recover damages as against a property owner because a condition exists in con- nection with such property which may or will, in the future, cause the former some injury, as for instance, by the fall of a wall ; and consequently such a condition, not affecting the rights of the public as to the enjoyment of a common right, cannot well be a nuisance, even if it does subsequently result in an injury to some person or persons. The question of what constitutes a nuisance has been referred to for the reason that it has a direct bearing upon the theory on which, in many cases, a lessor's liability for injuries to a stranger is to be based. If these injuries are in their nature contimious, or at least, repeated, and they consist in interfer- ence with the enjoyment of another's property, and they are, furthermore, the result of conditions existing at the time of the lease, then the lessor's liability may unquestionably be based on the theory of nuisance. For instance, if one leases to another property which is so constructed as constantly to flood a neigh- bor's premises with water or filth, or to obstruct or pollute a watercourse to the detriment of another, or which, when used in the manner called for by the condition of the property, interferes with the right of a neighbor to a reasonable degree of immunity from noxious and disagreeable odors and from noise, the injury 556Burdick, Torts, 405; 2 Jaggard, 557 See Shearman & Redfield, Neg. Torts, 747; 21 Am. & Eng. Bnc. Law c. 36; 1 Thompson, Neg. §§ 694-714, (2d Ed.) 688. 1055, 1064; Burdick, Torts, p. 445. § 102 LANDLORD'S OBLIGATIONS TOWARDS THIRD PERSONS. 683 is in its nature a nuisance, and it is proper to base the lessor's liability on the theory of nuisance, as it would be to base the lessee's liability, or, if the property were not under lease, the liability of the tenant in fee simple in control. But when there is no such continuous or repeated interference with one's enjoy- ment of his property, but merely an injury to a person or prop- erty, caused by an event of brief duration, which results from a condition existing in connection with neighboring property, the person injured can properly, it is submitted, recover damages on the ground only of a lack of due care, and this whether the liability is asserted against a lessor of the property, the defective condition of which caused the injury, against a lessee of such property, or against one having an estate of fee simple in possession. As before suggested, if a lessor is to be held liable in such a case on the theory that the existence of such condition constitutes a nuisance, that theory is a fortiori applicable as against one in actual control and possession of the property. The sounder theory, it is submitted, on which to base the liability of one who leases to another property in connection with which there exists a condition which is likely, at some time in the future, to result in injury to a third person or persons not claim- ing in right of the lessee, is that he is negligent in putting out of his own control a thing which he knows, or should know, to be a source of danger to others, and that he cannot protect him- self from liability to such strangers for injury therefrom as he can from liability to persons entering on the premises in right of the lessee,^®® by informing the lessee, of the dangerous con- dition, since a stranger cannot be regarded, in favor of the lessor, as charged with notice of what the tenant knew, and since furthermore, even if he did know, he could avoid the danger only by the sacrifice of his right to use adjoining property. That the liability of the lessor for a dangerous condition existing on the premises at the time of the lease, which results subsequently in injury to a stranger, is to be based on the theory of negligence and not of nuisance, seems clearly involved in occasional deci- sions that the lessor is liable only if he knew of such condition at the time of the lease.^^^ 558 See ante, § 96 b. N. Y. 514, 27 N. E. 786, 22 Am. St. 559 Timlin v. Standard Oil Co., 126 Rep. 845; Borman v. Sandgren, 37 684 PHYSICAI^ CONDITIONS. § 102 In the case of one conveying land in fee, the theory of liability on his part, on account of the continuance of a nuisance existing at the time of the conveyance, is based upon the ground that he •was the creator of the nuisance, and that he cannot relieve him- self from the consequences of his wrong by conveying the prem- ises to another,56o and the same ground of liability is asserted in the first and leading ease upon the liability of the lessor, that he himself created the nuisance.5«i This suggests the question whether liability can properly be imposed on the lessor for injury accruing after the date of the lease, on the theory of nuisance, if the injurious condition was created by the lessor's grantor, or by some other third person. Occasionally it is said that the lessor is liable for injuries due to a condition on the premises which existed at the time of the lease, because by making the lease he authorizes a continuance of such condition,s®2 or authorizes their use in that condition.^^^ If we adopt the theory above suggested, that the lessor is liable for injuries caused by a casualty resulting from a condition thus existing at the time of the lease, because he was negligent in 111. App. 160; Griffith v. Lewis, 17 "The real basis of liability for the Mo. App. 605; Curran v. Flammer, 49 consequences flowing from a nui- App. Div. 293, 62 N. Y. Supp. 1061; sance rests neither on the ownership Monroe v. Carlisle, 176 Mass. 199. nor the occupancy of the premises 57 N. B. 332; Patterson v. Jos. upon which it exists. The occupant, Sehlitz Brew. Co., 16 S. D. 33, 91 as such, is not answerable for the N. W. 336; Waterhouse v. Jos. nuisance; neither is the owner, as Sehlitz Brew. Co., 12 S. D. 397, 81 such, answerable. It is the one who N. W. 725, 48 Li. R. A. 15-7; Id., 16 creates a nuisance, or who knowing- S. D. 592, 94 N. W. 587. ly continues it if created by another. In Leonard v. Hornellsville, 41 that is answerable for the consequen- App. Div. 106, 58 N. Y. Supp. 266, it ces." is apparently intimated that the les- ssi Roswell v. Prior, 12 Mod. 635. sor's knowledge of the tenant's 562 Nugent v. Boston, C. & M. R. dangerous mode of using the prem- Co., 80 Me. 62, 12 Atl. 797, 6 Am. St. ises would render the lessor liable. Rep. 151; Lufkin v. Zane, 157 Mass. though such knowledge was acquired 117, 31 N. E. 757, 17 L. R. A. 251, 34 after the, demise. This is evidently Am. St. Rep. 262; Dalay v. Savage, not so. 145 Mass. 38, 12 N. E. 841, 1 Am. St. 560 See cases cited ante, note 553, Rep. 429. and also an excellent note in 86 Am. ses Boston Beef Packing Co. v. St. Rep. 509, upon the subject of an Stevens, 12 Fed. 279; House t. Met- owner's liability for a nuisance calf, 27 Conn. 631; Jackman v. Arl- created by another. It is there said: ington Mills, 137 Mass. 277. I 102 LANDLORD'S OBLIGATIONS TOWARDS THIRD PERSONS. QgS leasing the premises while subject to such condition, there is no occasion to resort to this theory of authorization. The fact that the lessor negligently leases the premises in such a condition that, ,if the lessee negligently fails to remove such condition, a third person is injured, renders the lessor liable, not because he authorized the lessee to be negligent, but because his, the lessor's negligence, was an effective cause of the injury. It is a case of joint negligence of a successive, as distinguished from a si- multaneous, eharacter.564 Even if the lessor's liability, in the particular case, for injuries resulting from a condition existing on the premises at the time of the lease, is properly based on the theory of nuisance, it would seem, as is suggested above, that he is ordinarily liable because he created the nuisance, and did nothing to abate it, and it seems questionable whether, using the word "authorize" in its ordinary sense, a lessor can be re- garded as authorizing the lessee to maintain the premises in the same condition as at the time of the lease, for the purpose of imposing liability on the lessor. As a matter of fact the lessor or grantor of property, in connection with which a nuisance ex- ists, does not, by making the lease or other conveyance of the property, intend to authorize the continuance of the nuisance, nor does the lessee regard him as so intending, and the doctrine of "apparent authority," recognized in the law of agency, is inapplicable to such a case, for the reason, firstly, that such doc- trine has no bearing upon the liability of one person for another's torts, other than deeeit,^^^ and secondly, the person injured was not as a matter of fact misled by any appearance of authority.^*^ It would rather seem as if, by the statement that the landlord is liable for a dangerous or injurious condition existing at the time of the lease, because by making the lease he authorizes a continu- ance of such condition, or a use of the property in that condi- tion, is meant merely that, by thus putting the land out of his control, he puts it in the power of the lessee to maintain such a condition, irrespective of the landlord's desire to end it. In the first and leading case upon the subject of a lessor's liability for injuries caused by a condition on the premises existing at 564 Pollock, Torts (6th Ed.) 454. Bee HufEcut, Agency (2d Ed.) § 53. 565 See Huffcut, Agency (2d Ed.) § 52 a. 686 PHYSICAL CONDITIONS. § 102 the time of the lease, such condition in that case involving the obstruction of ancient lights upon neighboring property,^®'' there are, unquestionably, expressions to the effect that the making of the lease, reserving rent, involved an agreement for its continu- ance, but the language of the opinion as a whole seems to base the lessor's liability upon the theory that he cannot, after erect- ing a nuisance, free himself from liability by granting the prop- erty over. It does not seem that any appreciable advantage is to be gained by introducing the fiction of authorization in this connection. Occasionally it is intimated that the receipt of rent by the lessor is a consideration tending to show authority from him to the lessee to continue the condition which caused the injury, so as to render him liable for the injury.^^* In reference to this statement, as to the statement that the making of the lease shows such authority, it may be said that, as a matter of fact, a lessor 567 Roswell V. Prior, 12 Mod. 635. reason that he that does the first There it is said: "And surely this wrong shall answer for all conse- action is well brought against the quential damages; and here the orig- erector, for before his assignment inal erection does influence the con- over he was liable for all consequen- tinuance, and it remains a continu- tial damages, and it shall not be In ance from the very erection, and by his power to discharge himself by the erection, till it be abated." granting it over, and more especially sss See Rosewell v. Prior, 2 Salk. here, where he grants over, reserving 459, 12 Mod. 635 ; Board of Health of rent, whereby he agrees with the New Rochelle v. Valentine, 57 Hun, grantee that the nuisance should 591, 11 N. Y. Supp. 112; Stephanl v. continue, and has a recompense, viz.. Brown, 40 111. 428; Helwig v. Jor- the rent, for the same; for surely dan, 53 Ind. 21, 21 Am. Rep. 189; when one erects a nuisance, and Swords v. Edgar, 59 N. Y. 28, 17 Am. grants it over in that manner, he is Rep. 295; Grady v. Wolsner, 46 Ala. a continuor with a witness. And 381, 7 Am. Rep. 593. So it is said suppose in this case the lessor or that the person who parts with the assignor had been seised in fee, and possession of the land remains lia- had erected this nuisance, and then ble for a nuisance created by him infeofEed another over, he had con- only if he receives a benefit from its veyed this as a nuisance, and causa continuance, as by receiving rent, or causae est causa causati. And if a if he upholds the nuisance by a cov- wrongdoer conveys his wrong over to enant for its continuance. City of another, whereby he puts it out of Albany v. Cunliff, 2 N. Y. (2 Comst.) his power to redress it, he ought to 174; Hanse v. Cowing, 1 Lans. (N. answer for it. * * * And it is a Y.) 288. fundamental principle in law and § 103 LANDLORD'S OBLIGATIONS TOWARDS THIRD PERSONS. 687 does not ordinarily intend, by receiving rent, to authorize the continuance of a pre-existing condition, and there is nothing in such course of actionr to justify a third person in supposing that he does so intend. The receipt of rent might as well show an authority to continue a condition created after the demise as one created prior thereto. § 103. Applications of rule. a. Dangerous conditions in highway. The question of the les- sor's liability for injuries to strangers has arisen most frequently, perhaps, in connection with uncovered or defectively covered openings made for the benefit of the leased premises in the high- way on which they abut. Applying the general rule above stated, the lessor is liable in case he leases the premises with an area way or cellar entrance inadequately guarded, and one subse- quently passing falls therein,^''^ ^^^ j^g jg jjot^ ^s a general rule, liable if such place is sufficiently guarded at the time of the lease, and the guard or covering becomes out of repair during the tena.nej,^'"' or it is temporarily left unguarded by the tenant or some third person.5''i gg ^^g lessor is liable if the defective construction of a "coal hole," or a defective condition existing therein at the time of the demise, results in injury to a third person,^''^ while he is not so liable if the coal hole is in the ten- ses Stephani v. Brown, 40 111. 428 ; ran v. Flammer, 49 App. Div. 293, 62 City of Peoria v. Simpson, 110 111. N. Y. Supp. 1061. 294, 51 Am. Rep. 683 ; Mcllvalne v. oti Rider v. Clark, 132 Cal. 382, 64 Wood, 2 Handy (Ohio) 166; Tomle Pac. 564 (leaving cellar doors open) ; v. Hampton, 129 111. 379, 21 N. b Fehlauer v. St. Louis, 178 Mo. 635, 800; Larue v. Farren Hotel Co., 116 77 S. W. 843 (ditto); Duffin v. Daw- Mass. 67; Davenport v. Ruckman, 37 son, 211 Pa. 593, 61 Atl. 76; Opper v. N. Y. 568; McGrath v. Walker, 64 Hellinger, 116 App. Div. 261, 101 N. Hun, 179, 18 N. Y. Supp. 915; Brogan Y. Supp. 616. V. Hanan, 55 App. Div. 92, 66 N. Y. 572Dalay v. Savage, 145 Mass. 38, Supp. 1066; Durant v. Palmer, 29 N, 12 N. B. 841, 1 Am. Rep. 429; Stoet- J. Law (5 Dutch.) 544; Kirchner v. zele v. Swearingen, 90 Mo. App. 588; Smith, 207 Pa. 431, 56 Atl. 947. Mancuso v. Kansas City, 74 Mo. App. 670 Gridley v. City of Bloomington, 138 ; Anderson v. Dickie, 24 N. Y. 68 111. 47; City of Lowell v. Spauld- Super Ct. (1 Rob.) 238; Matthews Ing, 58 Mass. (4 Cush.) 2.77, 50 Am. v. DeGroft, 13 App. Div. 356, 43 N. Dec. 775; Gelof v. Morgenroth, 58 Y. Supp. 237. Mjsc. 557, 109 N. Y. Supp. 880'; Cur- 688 PHYSICAL CONDITIONS. §103 ant's control, and the latter fails to make repairs thereon, the necessity of which arises after the deniise,^^^ or fails to properly close or fasten it.°'^* In the case of an opening or excavation thus existing in the highway, for whatever purpose made, it has been held that if there is a statutory requirement that, before it is made, per- mission must be obtained from the state or municipal authorities, and no such permission has been given, the person making it is guilty of creating a public nuisance, and for injuries resulting from such nuisance he will be liable, without reference to the fact that the direct cause of the injuries is the failure of another person in control of the excavation to properly guard the open- ing. This principle has been applied so as to render the abutting owner liable for the negligence of an independent contractor in failing to guard such an excavation,^'^^ and it will be applied as against one who demises the premises after having made the excavation, and the fact that the absence of sufficient protection is owing to the fault of the lessee or of a third person wiU con- stitute no defense.^'^® In one state it has apparently been de- cided that an opening or excavation in the highway, if made without permission, is a nuisance, even though there is no ex- press statutory requirement of such permission ;•'•"'' and there is 373 Gridley V. City of Bloomington, Rep. 422; West Chicago Masonic 68 111. 47; Wolf v. Kilpatrick, 101 N. Ass'n v. Cohn, 192 111. 210, 61 Y. 146, 4 N. E. 188, 54 Am. Rep. 672; N. E. 439, 55 L. R. A. 235, 85 Am. West Chicago Masonic Ass'n v. Cohn, St. Rep. 327. In Holroyd v. Sher- 192 111. 210, 61 N. E. 439, 55 L. R. A. idan, 53 App. Div. 14, 65 N. Y. 535, 85 Am. St. Rep. 327; Frischburg Supp. 442, a like principle was ap- V. Hurter, 173 Mass. 22, 52 N. E. 1086. plied as a basis for holding a lessor 674 Stewart v. Putnam, 127 Mass. liable for injuries from doors swing- 403; Frischberg v. Hurter, 173 Mass. ing over the sidewalk, these being re- 22, 52 N. E. 1086; Johnson v. McM'il- garded as a nuisance as having been Ian, 69 Mich. 36, 36 N. W. 803; erected without municipal permis- Adams v. Fletcher, 17 R. I. 137, 20 sion. The liability, however, might Atl. 263, 33 Am. St. Rep. 859; Gordon as well have been placed on the V. Peltzer, 56 Mo. App. 599. ground that they were on the prem- B75 Congreve v. Morgan, 18 N. Y. ises when leased. 84, 72 Am. Dec. 495; Congreve v. 577 Congreve v. Morgan, 18 N. Y. Smith, 18 N. Y. 79; Creed v. Hart- 84, 72 Am. Dec. 495; Congreve t. mann, 29 N. Y. 591, 86 Am. Dec. 341. Smith, 18 N. Y. 79; Clifford v. Dam, "sowings V. Jones, 9 Md. 117; 81 N. Y. 52; Creed v. Hartmann, 29 Fisher v. Thirkell, 21 Mich. 1, 4 Am. N. Y. 591, 86 Am. Dec. 341. But see § 103 LANDLORD'S OBLIGATIONS TOWARDS THIRD PERSONS. 689 a suggestion to the same effect in another state.^'^* By other decisions, however, it is considered that, in the absence of a stat- utory requirement, no permission or authority is required before making an excavation of an ordinary character in or under the sidewalk, for the purpose of storing coal or of access to parts of the premises.^^^ Even where there is such a statutory require- ment, permission may, it has been held, be inferred from the ex- istence of the excavation for a considerable period of time with- out objection by the municipality.®** It appears to be immaterial, in determining the lessor's liabil- ity for injuries caused by an excavation in the sidewalk, wliether the place where the excavation is made belongs to such abutting owner or to the city, as the owner of the iee,^^^ and for the pur- poses of such determination, places which are in effect made by the abutting owner to constitute a part of the sidewalk, are regarded as being such.®82 In one state it has been decided that the lessor remains liable for any injuries caused by such an excavation, although it was lawfully made, and although he parts with the entire use and control therof in favor of one to whom he leases a part of the abutting land and building, the case being distinguished from that in which he makes a lease of the entire premises.*''^ The decision is based on the theory that, as a matter of public policy, Bond V. Smith, 113 N. Y. 378, 21 N. 66 Am. St. Rep. 575; Grldley v. City E. 128. of Bloomington, 68 III. 47. 578 West Chicago Masonic Ass'n v. =8i in 2 Shearman & Redfleld, Neg, Cohn, 192 111. 210, 61 N. E. 439, 55 (5th Ed.) § 703, the New York cases, L. R. A. 235, 85 Am. St. Rep. 327. before referred to, in which an ex- 6'9 Fisher v. Thirkell, 21 Mich. 1, cavation without permission is re- 4 Am. Rep. 422; Adams v. Fletcher, garded as a nuisance, rendering the 17 R. I. 137, 20 Atl. 263, 33 Am. St. owner liable without reference to Rep. 859; King v. Thompson, 87 Pa. negligence, are sought to be based on 365, 30 Am. Rep. 364; Gordon v. Pelt- the ground that in those cases the zer, 56 Mo. App. 599; Nelson v. God- "fee" of the highway belonged to the frey, 12 111. 20 (semble) ; Buesching municipality. The cases do not, V. St. Louis Gaslight Co., 73 Mo. 219, however, mention such a distinction. 39 Am. Rep. 50'3. =82 Tomle v. Hampton, 129 111. 379, =80 Jennings v. Van Schaick, 108 N. 21 N. E. 800, where the opening was Y. 530, 15 N. E. 424, 2 Am. St. Rep. in a platform, along the wall of the 459; Babbage v. Powers, 130 N. Y. building, which was open to use by 281, 29 N. E. 132; Canadaigua v. the public. Poster, 156 N. Y. 354, 50 N. E. 971, iss Canadaigua v. Foster, 156 N. L. and Ten. 44. 690 PHYSICAL CONDITIONS. §103 it is necessary to hold the abutting owner responsible for the condition of the excavation so long as he retains possession of any part of the land or building, but it does not clearly appear why a difl'erent rule should apply from that applicable when he parts with the entire abutting property .^s* The decision is at variance with a decision in another jurisdiction.^ss It has been decided that a lessor is liable for injuries to a pedestrian caused by ice formed as a result of the construction of a water pipe with its outlet above the pavement.^sfi Elsewhere it has been decided that if the formation of ice would not have occurred had the tenant refrained from discharging water from the premises in cold weather, the lessor is not liable.'^^^ And he has been regarded as exempt from liability for ice on the side- Y. 354, 50 N. B. 971, 66 Am. St. Rep. 575. 584 The language of the court is perhaps hardly broad enough to im- pose liability on one who, after erect- ing two houses side by side on the land, with a coal vault or other exca- vation in front of each of them, de- mises one of them, retaining pos- session of the other, when an injury results from the act of his tenant in leaving open the covering in front of the one demised. Such a state of affairs is not considered, but the only difference between such a case and that where the use and control of the excavation goes to the lessee of one or two floors, as in the princi- pal case, is that the excavation may possibly, so far as appearances go, be used, in the latter case, in connec- tion with the whole building. The later cases, in the supreme court of New York, of Schroeck v. Reiss, 46 App. Div. 502, 61 N. Y. Supp. 1054; Finigan v. Biehl, 30 Misc. 735, 63 N. Y. Supp. 147; Sturm- wold V. Schreiber, 69 App. Div. 476, 74 N. Y. Supp. 995, seem rather to ignore the above decision in Can- andaigua v. Foster, 156 N. Y. 354, 50 N. E. 971, 66 Am. St. Rep. 575. Cur- ran V. Flammer, 49 App. Div. 293, 62 N. Y. Supp. 1061, involved in- juries to a guest of the tenant, and Canandaigua v. Foster is distin- guished on that ground. 585 West Chicago Masonic Ass'n v. Cohn, 192 III. 210, 61 N. E. 439, 55 L. R. A. 235, 85 Am. St. Rep. 327, ap- parently disapproves the New York view. In Boston v. Gray, 144 Mass. 53, 10 N. E. 509, it was held that the lessor was not liable, the excavation passing with the lease of the ground iloor and basement. Here, however, the residue of the building was not retained by the lessor but was leased to other tenants. 586 isham V. Broderick, 89 Minn. 397, 95 N. W. 224; Wenzler v. McCot- ter, 22 Hun (N. Y.) 60; Brown v. White, 202 Pa. 297, 51 Atl. 962, 58 L. R. A. 321; Organ v. City of Toron- to, 24 Ont. 318. And see Leahan v. Cochran, 178 Mass. 566, 60 N. E. 382, 53 L. R. A. 891, 86 Am. St. Rep. 506, where such a condition of things is regarded as a public nuisance. 5ST Gardner v. Rhodes, 114 Ga. 929, 41 S. E. 63, 57 D. R. A. 749. § 103 LANDLORD'S OBLIGATIONS TOWARDS THIRD PERSONS. 691 walk caused by the overfloAV of a gutter on the roof as a result of the failure of the tenant to clear out the gutter.^-^s b. Pall of building or part thereof. In case a building, or a part of a building, falls on private property adjoining, the person injured by reason of such fall has a right of action against the person in control of the building, if the latter failed to exercise reasonable diligence in discovering its dangerous condition, or in preventing the fall. There is no liability apart from negli- gence, it seems,^®^ and consequently the right of action is not for the maintenance of a nuisancers" There being thus no right of action against a person actually in control of the building, apart from negligence on his part, the lessor cannot well be liable apart from negligence on his part. If the unsafe condition of the premises does not constitute a nuisance for the purpose of im- posing an absolute liability upon the person in control, it can- not constitute a nuisance for the purpose of imposing an abso- lute liability upon a person not in control. The few decisions bearing upon the liability of the lessor in such case are ordinarily opposed to the idea of any liability apart from negligence, even when they refer to the condition of the building as constituting a nuisance.s^i If the fall of the building or of a part thereof does not result from a condition which existed at the time of the lease, the 588 Shindelbeck v. Moon, 32 Ohio the defective condition of the build- St. 264, 30 Am. Rep. 584. ing. In Timlin v. Standard Oil Co., 589 See 2 Shearman & Redfield, 126 N. Y. 514, 27 N. E. 786, 22 Am. Neg. § 343 ad. fin.; 2 Jaggard, Torts, St. Rep. 845, though the court speaks 839; 1 Cyclopedia Law & Proc. 774; of the lessor being liable as for a Ainsworth v. Lakin, 180 Mass. 397, nuisance, it is expressly declared 62 N. B. 746, 57 L. R. A. 132, 91 Am. that he was not liable unless, at the St. Rep. 314. time of the lease, he "knew, or ought 590 See ante, § 102. to have known, or had notice" that 591 In Waterhouse v. Jos. Schlitz the wall was in a dangerous condi- Brew. Co., 12 S. D. 397, 81 N. W. 725, tion. Likewise in Todd v. Flight, 9 48 L. R. A. 157, 76 Am. St. Rep. 616; C. B. (N. S.) 377, though the opin- Id., 16 S. D. 592, 94 N. W. 587; and ion proceeds on the theory of nui- Patterson v. Jos. Schlitz Brew. Co., sance, it expressly refers to the fact 16 S. D. 33, 91 N. W, 336, the les- that "the defendant let the houso sor's liability is based upon the les- when the chimneys were known by sor's failure to exercise reasonable him to be ruinous and in danger of care previous to the lease to discover falling." 692 PHYSICAL CONDITIONS. § 103 lessor is not liable therefor^^z -unless, according to the view adopted in some jurisdictions, he has contracted to keep the premises in repair.^^s Accordingly he is not liable by reason of the fall of a structure erected by the tenant,'"* or if the fall is the result of the tenant's improper use of a part of the building^ leased.595 As regards the fall of a building or of a part thereof upon a highway, it is somewhat difficult to say whether there is any absolute obligation upon the person in control to prevent such fall, in other words, whether a building which is likely, either in part or as a whole, to fall upon the highway, is a public nuisance, so as to entitle one injured by its fall to recover dam- ages, irrespective of the question of negligence. A building which is in such a state of disrepair as to be apt to fall upon the highway has been regarded as a public nuisance on which an indictment may be based^"® and there are occasional decisions in which the liability of the person in control, for injuries caused by the fall of a wall or other part of a building, or of an object attached thereto, has been referred to as a liability for the main- tenance of a nuisance.^^'' Even these latter cases, however, ordi- narily discuss such person's liability as existing by reason of lack of due care,^"* and in other cases his liability is placed ex- clusively upon the ground of negligence,^"* the mere fall of the 592 Grogan v. Broadway Foundry the circumstances, as a question for Co., 87 Mo. 321; O'Connor v. And- the jury, ■rews, 81 Tex. 28, 16 S. W. 628. sss Reg v. Watts, 1 Salk. 357. o93Boyce v. Tullerman, 183 111. 597 Kalis v. Shattuck, 69 Cal. 593, 115, 55 N. E. 703; Boyce v. Snow, 187 11 Pac. 346, 58 Am. Rep. 568; Deford 111. 181, 58 N. E. 403, 79 Am. St. Rep. v. State, 30 Md. 179; Murray v. Me- 214. See post, § 107. Shane, 52 Md. 217, 36 Am Rep. 367; 594 Grogan v. Foundry Co., 87 Mo. Wilkinson v. Detroit Steel & Spring 321. Works, 73 Mich. 405, 41 N. W. 490. 595 Kalis V. Shattuck, 69 Cal. 593, 598 See Kalis v. Shattuck, 69 Cal. 11 Pac. 346, 58 Am. Rep. 568. 593, 11 Pac. 396, 58 Am. Rep. 568; In HofEerberth v. Myers, 42 App. Deford v. State, 30 Md. 179; Wilkin- Div. 183, 59 N. Y. Supp. 88, where a son v. Detroit Steel & Spring Works, wall on the premises gradually 73 Mich. 405, 41 N. W. 490. forced out of position a wall on an 599 Rector of Church of Ascension adjoining lot, it was held that the v. Buckhart, 3 Hill (N. Y.) 193; lessor was liable if this was a result Mullen v. St. John, 57 N. Y. 567, 15 of the original construction of the Am. Rep. 530; Railway Co. v. Hop- wall, and this was regarded, under kins, 54 Ark. 209, 15 S. W. 610, 12 § 103 LANDLORD'S OBLIGATIONS TOWARDS THIRD PERSONS. 593 building or of a part thereof being regarded as prima facie evi- dence of negligence,*"*' in accordance with the so called doctrine of res ipsa loquitur.^°^ While a wall or building in such a state as to show an evident likelihood of falling upon the highway may well be regarded as a public nuisance, as interfering with the use of that part of the highway, by frightening persons away therefrom, it would seem most questionable whether a wall or building, or a part of a building, can properly be so regarded, so as to impose either criminal liability, or an absolute liability in damages for injuries to a person on the highway, merely because it falls upon the highway. If the likelihood of its fall is not ap- parent to the ordinary traveler on the highway, it does not inter- fere with the use of the h'ghway by the public, nor are the public affected by its eventual fall and the consequent injury to a par- ticular individual. If, in accordance with the views above indicated, a building or a part of a building or other structure is not a nuisance, merely because it is in such condition that it eventually falls upon the highway, the person in control cannot be regarded as absolutely liable for any injuries caused by the fall, but can be subjected to liability only as for lack of due care in regard to the condition of the building, and as before stated, the cases are ordinarily to this effect. And if such a structure is not a nuisance for the purpose of imposing a liability upon the person in control thereof, L. R. A. 189 ; Inhabitants of Mulford between negligence and nuisance ia V. Holbrook, 91 Mass. (9 Allen) 17, well stated. See, also, Martin v. 85 Am. Dec. 735; Ryder v. Kinsey, Pettit, 117 N. Y. 118, 22 N. B. 566, 5 62 Minn. 85, 64 N. W. 94, 34 L. R. A. L. R. A. 794; Sturmwold v. Schrel- 557, 84 Am. St. Rep. 623. ber, 69 App. Div. 476, 74 N. Y. Supp. In New York the cases distin- 995; Matthews v. De GrofE, 13 App. guish, in the case of actions against Div. 356, 43 N. Y. Supp. 237; Dood abutting owners, lessors or others v. Rothschild, 31 Misc. 721, 65 N. Y. for defects in the street, between Supp. 214. those based on negligence and those eoo Hadley v. Taylor, L. R. 1 C. P. based on the maintenance of a nui- 53; Railway Co. v. Hopkins, 54 Ark, sance, holding that if the complaint 209, 15 S. W. 610, 12 L. R. A. 189; is based on one theory there can be Mullen v. St. John, 57 N. Y. 567, 15 no recovery on the other. See Fish- Am. Rep. 530. er V. Rankin, 25 Abb. N. C. 191, 7 8»i See Shearman & Redfield, Neg. N. Y. Supp. 837, and Mr. Abbott's §§ 59, 60. note thereto, where the distinction 694 PHYSICAL CONDITIONS. § 103 it cannot be a nuisance for the purpose of imposing liability upon a person who has divested himself of the control, that is, one who has leased to another the land with the building thereon, and he can be subjected to liability, it seems, only upon the theory of negligence in leasing a building which he knows, or ought to know, to be in a dangerous condition, as before suggested. In one jurisdiction the lessor has been held liable in such case on the theory of negligence,^"^ ^rhile in others the liability is stated as being by reason of the leasing of the premises in a condition constituting a nuisance.®"^ c. Fall of snow or ice. The question of the liability of a lessor for injuries caused to one on the highway by the fall of ice or snow from the roof of a building has been the subject of litiga- tion in several cases. There is one decision to the effect that the lessor is liable in such ease, on the theory that the injury is due to the faulty construction of the roof.""* And elsewhere it has been asserted that liability for such an injury is not by reason of lack of due care in the management of the roof but rather by reason of the erection and maintenance of a roof in that shape.605 In other cases it has been decided that the lessor is 602 Waterhouse v. Jos. Schlitz does not appear. Nor does it ap- Brew. Co., 16 S. D. 592, 94 N. W. pear whether the statement that the 587; Patterson v. Jos. Schlitz Brew, lessor and lessee were prima facie Co., 16 S. D. 33, 91 N. W. 336, 65 responsible means that there was a Li. R. a. 151. presumption that they were negll- 803 Keeler v. Lederer Realty Corp., gent, under the doctrine of res ipsa 26 R. I. 524, 59 Atl. 855; Kalis v. loquitur. The opinion ctuotes from Shattuck, 69 Cat. 593, 11 Pac. 346, text hooks in which the word "nui- 58 Am. Rep. 568; Uggla v. Brokaw, sance" is used in connection with 117 App. Div. 586, 102 N. T. Supp. the liability for injuries caused by 857. the fall of a building. In Mitchell v. Brady, 124 Ky. 411, so* Walsh v. Mead, 8 Hun (N. Y.) 30 Ky. Law Rep. 258, 99 S. W. 266, 387. 124 Am. St. Rep. 408, it is said that sos Hannem v. Pence, 40 Minn. 127, the lessor and lessee are both prima 41 N. W. 657, 12 Am. St. Rep. 717 ; facie responsible for the fall of a Shipley v. Fifty Associates, 106 Mass. pipe placed on the building leased. 194, 8 Am. Rep. 318. This latter It is not stated that the fall was case seems, however, to be overruled by reason of defects in the fasten- in this regard by later cases cited ings of the pipe which existed at in the next note, the time of the lease, and the theory In Coman v. Alles, 198 Mass. 99, on which the lessor was held liable 83 N. E. 1097, 15 L. R. 'A. (N. S.) § 103 LANDLORD'S OBLIGATIONS TOWARDS THIRD PERSONS. 595 not liable for injuries so caused, for the reason that he has a right to rely upon the exercise of due care by the tenant in removing snow and ice.""" If the lessor is to be held liable in such case, it seems proper to base his liability upon his negligence in leasing the property with a roof which he knows is likely, by reason of its construc- tion, to be a source of danger to others.**"^ And whether the con- struction of the roof is such that, in view of the climatic condi- tions in that particular place, he is negligent in placing the build- ing in the control of another, who may or may not clear off the roof, would seem to be a proper question for a jury to pass upon.""8 To hold him absolutely free from liability in any and every such case is in contravention of the ordinary rules as to a lessor's liability for a condition on the premises,^''^ and on the other hand to hold him absolutely liable in such a case, without reference to the question of negligence, seems justifiable only upon the theory that a roof from which snow and ice may thus possibly fall on the highway constitutes a public nuisance, and, as was remarked by a distinguished Massachusetts judge, if such a condition of the premises constitutes a nuisance, "half the householders in Boston (or in any other Northern city) are in- dictable, ""^o Since a roof so constructed as to facilitate the fall of snow or ice therefrom on the highway does not interfere with the use of the highway by the public, it does not seem to come within the legal conception of a public nuisance,*'! 1 and it 1120, the same theory was applied 441, 79 N. E. 810, it being there said to relieve the lessor from liability for that "because of the failure of the injury caused by the fall of ice result- plaintiff to Introduce evidence that ing from the accumulation of water the house was a nuisance at the in a gutter on the building, since time of the letting by the defendant, the tenant might have prevented or that there was an existing condi- such accumulation. tlon of construction that the defend- 600 'Lee v. McLaughlin, 86 Me. 410, ant intended to have used in such a 30 Atl. 65, 26 L. R. A. 197; Clifford way as to make it a nuisance, a ver- V. Atlantic Cotton Mills, 146 Mass. diet was rightfully directed for the 47, 15 N. E. 84, 4 Am. St. Rep. 279; defendant." Leonard v. Storer, 115 Mass. 86, 15 009 See ante, § 101. Am. Rep. 76; Atwill v. Blatz, 118 eio Holmes, J., In Clifford v. At- Wis. 226, 95 N. W. 99. lantic Cotton Mills, 146 Mass. 47, 15 007 See ante, § 102. N. E. 84, 4 Am. St. Rep. 279. 608 Such a view is perhaps indi- on See ante, § 103 b. cated in Neas v. Lowell, 193 Mass. 696 PHYSICAL CONDITIONS. § 103 is not a private nuisance, since its existence is not a continuing cause of injury to any particular individual.^^i" d. Escape of water or filth. For injuries to adjoining premises or property thereon caused by the failure to make repairs in pipes, drains or cesspools, the necessity for which arose after the demise,®^^ or for those caused by the tenant's improper use of such appurtenances, the lessor is not liable,^!* while he is liable if their condition is such at the time of the demise that, though properly used by the tenant in the manner to be antici- pated, such injuries result.^^* e. Interference with water rights. The lessor is not liable for the act of his tenant in interfering, by the erection of a dam or otherwise, with the natural flow of a stream or of surface wa- ter,^i5 or in polluting it,^i® unless he advised or aided the tenant therein,^!'' or unless the condition of the premises at the time of oiia See ante, § 102. ei* Fleischner v. Citizens' Real Es- «i2 Deutsch V. Abeles, 15 Mo. App. tate & Inv. Co., 25 Or. 119, 35 Pac. 398; Harris v. Cohen, 50 Mich. 324, 174; Knauss v. Brua, 107 Pa. 85; 15 N. W. 493; Strauss v. Hamersley, Few v. Roberts, 108 Pa. 489; Wunder 37 N. Y. St. Rep. 749, 13 N. Y. Supp. v. McLean, 134 Pa. 334, 19 Atl. 749, 816; Ingwersen v. Rankin, 47 N. J. 19 Am. St. Rep. 702; Rex v. Pedly, Law, 18, 54 Am. Rep. 109; Pope v. 1 Adol. & B. 822; McCuUum v. Hutch- Boyle, 98 Mo. 527, 11 S. "W. 1010; ison, 7 U. C. C. P. 508. So in My- Mylander v. Belmschla, 102 Md. 689, lander v. Beimschla, 102 Md. 689, 62 62 Atl. 1038, 5 L. R. A. (N. S.) 316. Atl. 1038, 5 L. R. A. (N. S.) 316, while eisVason v. City of Augusta, 38 the landlord was regarded as free Ga. 542; Edgar v. Waiker, 106 Ga. 454, from liability, in the case of defects 32 S. E. 582. So in Lufkin v. Zane, 157 in a spout which arose during the Mass. 117, 31 N. E. 757, 17 L. R. A. lease, so far as concerned injuries ac- 251, 34 Am. St. Rep. 262, a case -of cruing during that tenancy, he was a flow of wastfe matter from a stable, held liable for injuries thereafter it was said that "if it was reasonably accruing, though he subsequently practicable to use the premises for a leased to another, stable in the manner in which the 6i5 Jansen v. Varnum, 89 111. 100; landlord intended they should be Baker v. Allen, .66 Ark. 271, 50 S. W. used, without creating a nuisance, 511, 74 Am. St. Rep. 93; Fiske v. then It cannot be said that by letting Framingham Mfg. Co., 31 Mass. (14 them the landlord authorized the Pick.) 491; Batteman v. Finn, 32 creation or continuance of a nui- How. Pr. (N. Y.) 501; Sargent v. sance." To the same effect, that a Stark, 12 N. H. 332. livery stable is not necessarily a eie Little Schu-vlkill Nav. Co. v, nuisance so as to render the lessor Richards, 57 Pa. 142, 98 Am. Dec. 209. liable, see Metropolitan Sav. Bank v. ei? Twiss v. Baldwin, 9 Conn. 291, Manion, 87 Md. 68, 39 Atl. 90. 23 Am. Dec. 339; Baker v. Allen, 66 § 104 LANDLORD'S OBLIGATIONS TOWARDS THIRD PERSONS. 697 the demise was such that this was a natural result of the tenant 's use of the premises.®i* f. Injuries to other tenants. A tenant of other premises, under the same landlord, whether or not a part of the same building, is a third person within the meaning of the rule of liability which we have above considered, and consequently a landlord is not liable td his tenant for injuries caused by conditions existing on premises leased by him to another person, if he had no part in the creation of such conditions.^i* So a landlord is not ordina- rily liable for injuries to his tenant, caused by the nonrepair or negligent management of water fixtures or appliances in another part of the same building which is leased to another person."*" § 104. Liability of transferee of reversion. The liability, by reason of the demise of premises while in a condition productive of injury to a stranger, is necessarily re- Ark. 271, 50 S. W. 511, 74 Am. St. one of his tenants caused by the use Rep. 93. of gasoline by another tenant in the 618 So the lessor was held liable for same building, unless he knew, or the pollution of a stream where had reason to know, when leasing to "houses, drains and wells were con- the latter, that he would use gaso- structed and owned by the (lessor) line or some other dangerous sub- and were adapted to be used, and stance. Lewis v. Hughes, 12 Colo, intended to be used, by the tenants 208, 20 Pac. 621. in the manner in which they were 620 Lebensburger v. Scofleld (C. C. used," and this resulted in such pol- A.) 155 Fed. 85; Halzlip v. Rosen- lution. Jackman v. Arlington Mills, berg, 63 Ark. 430, 39 S. W. 60, 62 Am. 137 Mass. 277. But it was held that St. Rep. 206; Becker v. BuUowa, 36 a lessor was not liable for the taking Misc. 524, 73 N. Y. Supp. 944; Leon- of an excessive amount of water from ard v. Gunther, 47 App. Div. 194, 62 a stream at the dry season of the N. Y. Supp. 99; White v. Montgom- year merely because the flume on ery, 58 Ga. 204; McCarthy v. York the premises by which the water was County Sav. Bank, 74 Me. 315, 43 taken was of a size proper for tak- Am. Rep. 591; Harris v. Cohen, 50 ing such amount, this amount not Mich. 324, 15 N. W. 493; Sheridan being excessive at other seasons of v. Forsee, 106 Mo. App. 495, 81 S, the year. Gould v. Stafford, 91 Cal. W. 494. Compare Freidenburg v. 146, 27 Pac. 543. Jones, 63 Ga. 612; Jones v. Freiden- qi9 White V. Montgomery, 58 Ga-. burg, 66 Ga. 505, 42 Am. Rep. 86, 204; Peterson v. Bullion-Beck & where the landlord and a tenant both Champion Min. Co., 33 Utah, 20, 91 had the right to use the bath room Pac. 1095. So it was held that the in which the leak occurred, landlord is not liable for injuries to , 698 PHYSICAL CONDITIONS. § 105 strieted to the person who makes the demise, and cannot be ex- tended to one to whom the reversion, existing after the making of the demise, is transferred.®-^ It has been in one case decided that the transferee might be liable if he knew of such condition at the time of his acceptance of the transfer,® 22 but such a A'iew seems most questionable, since the transferee has neither created nor maintained the dangerous condition, and he is in no position to effect its removal. One's mere acquisition of an interest in property in connection with which a dangerous or harmful con- dition exists, the property still remaining in another's control, cannot involve any liability on his part to a person injured by such condition, on the theory either of negligence or of nuisance, since such transferee of an interest in the property cannot, while the property is in another's exclusive control, be regarded as negligent in failing to remove the condition, or as thereby main- taining a nuisance.®-" A transferee of the reversion is, liowever, liable, as would be any other person, if he advises, aids or abets an action of the tenant which causes an injury to a stranger.®^* § 105. Effect of renewal of lease. Although neither the lessor nor his transferee is liable to one injured by reason of a condition, existing in connection with the premises, which arose after the making of the lease, he is so liable if he renews the lease with such condition still existent, and knowing, or having reason to know, of such condition, the same rule applying as if the lease were not a renewal, but an original, lease.®^^ 621 Timlin v. Standard Oil Co., 126 sage in Addison on Torts, which is N. Y. 514, 27 N. E. 786, 22 Am. St. in turn based on a dictum of Little- Rep. 845; Ahem v. Steele, 115 N. Y. dale, J., in Rex v. Pedly, 1 Adol. & 203, 22 N. E. 193, 5 L. R. A. 449, 12 E. 827. But this dictum is ques. Am. St. Rep. 778; Woram v. Noble, tioned in the last (eighth) edition 41 Hun (N. Y.) 398; Dalay v. Sav- of Mr. Addison's work at p. 499, in age, 145 Mass. 38, 12 N. E. 841, 1 Am. Clark & Lindsell, Torts (3d Ed.) at St. Rep. 429; Lufkin v. Zane, 157 p. 39, and in Ahem v. Steele, 115 N, Mass. 117, 31 N. E. 757, 17 L. R. A. Y. 203, 22 N. E. 193, 5 L. R. A. 449, 251, 34 Am. St. Rep. 262. 12 Am. St. Rep. 778. A contrary 622 Pierce v. German Sav. & Loan view appears also to be indicated in Soc, 72 Cal. 180, 13 Pac, 478, 1 Am. Dalay v. Savage, 145 Mass. 38, 12 N. St. Rep. 45. E. 841, 1 Am. St. Rep. 429. 623 The decision cited in the last 62* See ante, at note 546. preceding note is based on a pas- 625 Ingwersen v. Rankin, 47 N. J. § 106 LANDLORD'S OBLIGATIONS TOWARDS THIRD PERSONS. 699 § 106. Periodic tenancy. The question has arisen whether, in the case of a periodic lease, that is, one from year to year, from month to month, or the like, the landlord is liable for a defect or injurious condition in the premises existent at the end of any period, as if ho had at that time given a renewal lease, merely because he has failed to give the necessary notice and thereby terminate the tenancy at that time. A tenancy from year to year being in effect a tenancy for one year certain with a growing interest during every year there- after, springing out of the original lease,®^" it would seem that the reversioner could not be held liable for injuries caused by a condition not existing at the commencement of the tenancy but arising thereafter, prior, however, to a time at which he might have terminated the tenancy, that, in other words, he is not liable as if he had renewed the lease at the end of the year merely because he failed at that time to terminate the tenancy, and a similar view would seem to apply in the case of any other peri- odic tenancy. The English decisions, as they now stand, are clearly to the effect that, in the case of a periodic tenancy, the landlord is not liable for conditions arising after the commence- ment of the tenancy .*^'^ There are occasional decisions in this Law, 18, 54 Am. Rep. 109; Baker v. 627 in Gandy v. Jubber, 5 Best & Allen, 66 Ark. 271, 50 S. "W. 511, S. 78, it was held that the landlord, 74 Am. St. Rep. 93; Dalay v. failing to terminate a tenancy from Savage, 145 Mass. 38, 12 N. B. year to year, was liable for the in- 841, 1 Am. St. Rep. 429; Ahern v. juries if the injurious condition had Steele, 115 N. Y. 203, 22 N. B. 193, 5 existed at the end of any year. A L. R. A. 449, 12 Am. St. Rep. 778; eontrary conclusion was arrived at Timlin v. Standard Oil Co., 126 N. on writ of error, but the case was Y. 514, 27 N. E. 786, 22 Am. St. Rep. settled and the opinion never de- 845; Matthews v. DeGroff, 13 App. livered. This opinion is reported in Div. 356, 43 N. Y. Supp. 237; Fleisch- Gandy v. Jubber, 9 Best & S. 15. In ner v. Citizens' Real Estate & Inv. the subsequent case of Sandford v. Co., 25 Or. 119, 35 Pac. 174; Water- Clarke, 21 Q. B. Div. 398, the decision house V. Jos. Schlitz Brew. Co., 12 S. in error in the previous case is re- D. 397, 81 N. W. 725, 48 L. R. A. 157, ferred to as law in the case of a ten- 76 Am. St. Rep. 616; Gandy v. Jub- ancy from year to year, but it was de- ber, 5 Best & S. 78; Metzger v. cided that the same rule did not Schultz, 16 Ind. App. 454, 43 N. B. apply to a weekly tenancy on the 886, 45 N. B. 619, 59 Am. St. Rep. 323. theory that a weekly tenancy is in 626 See Cattley v. Arnold, 1 Johns, its nature different from one from & H. 651, and ante, § 14 a. year to year and comes to an end at 700 PHYSICAL CONDITIONS. § 107 country to the contrary.^^s § 107. Effect of contract as to condition or repairs. It has been quite frequently asserted that if there is an agree- ment by the landlord to make repairs, the landlord is liable for injuries arising from a failure to make them, although the ne- cessity for repairs does not arise till after the demise, the theory usually advanced being that thereby circuity of action is avoid- ed.^29 Occasionally the liability of the landlord by reason of such an agreement has been questioned.^^" That the landlord is so liable was first suggested somewhat over a century ago, in a case^'^ in which it was decided that, by reason the end of each week without any 629 Gridley v. City of Bloomlngton, notice. But in Bowen v. Anderson 68 111. 47; Reichenbacher v. Pah- [1894] 1 Q. B. 164, this latter deci- meyer, 8 111. App. (8 Bradw.) 217 ;■ sion is overruled, and it is decided Boyce v. Tallerman, 183 111. 115, 55 that a weekly tenancy is not term- N. E. 703; City of Lowell v. Spauld- inated without notice, and that there- ing, 58 Mass. (4 Cush.) 277, 50 Am. fore the landlord is not liable for Dec. 775; Inhabitants of Milford v. a condition arising after the making Holbrook, 91 Mass. (9 Allen) 17, 85 of the lease. Am. Dec. 735; Szathmary v. Adams, 828 In Borman v. Sandgren, 37 111. 166 Mass. 145, 44 N. B. 124; Frisch' App. 16 and Griffith v. Lewis, 17 Mo. burg v. Hurter, i73 Mass. 22, 52 N. App. 605, the decision in Gandy v. E. 1086; Mills v. Temple-West, i Jubber, 5 Best & S. 78, is followed. Times Law R. 503 (semble); Nelson without any particular discussion v. Liverpool Brewery Co., 2 C. P. and without reference to that on Div. 311. error in Id., 9 Best & S. 15, and a like eao Russell v. Shenton, 3 Q. B. 449; view appears to be adopted in East Brady v. Klein, 133 Mich. 422, 95 N. End Imp. Co. v. Sipp, 14 Ky. Law W. 557, 62 L. R. A. 909, 103 Am. St. Rep. 924. But Hull v. Sherrod, 97 Rep. 455; Clyne v. Helmes, 61 N. J. 111. App. 298, appears to accord with Law, 358, 39 Atl. 767. In Sterger v. the later English doctrine. In Glass Van Sicklen, 132 N. Y. 499, 30 N. B. V. Colman, 14 Wash. 635, 45 Pac. 310, 987, 16 L. R. A. 640, 28 Am. St. Rep. It was decided that if the tenancy 594, it is said that "the covenant of was to be regarded as coming to an the landlord to repair does not enure end at the end of each period, the to the benefit of a stranger sustain- tenant was to be regarded as having, ing injury because of its breach." at the end of each period, asserted The case cited in support of the his right then to remove the im- statement, Odell v. Solomon, 99 N. Y. provements which caused the injury, 635, 1 N. E. 408, involved a covenant and as having replaced them at the by the lessee. commencement of the succeeding esi Payne v. Rogers, 2 H Bl 350 period. § 107 LANDLORD'S OBLIGATIONS TOWARDS THIRD PERSONS. 701 of such an agreement on the part of the landlord, the tenant was not liable, and one of the judges said that to hold the tenant liable in such a case would "encourage circuity of action, as the tenant would have his remedy over against the landlord." A recent Illinois case^^- appears to be the only actual adjudication that the landlord is liable by reason of such a covenant, and there has been no judicial discussion of the theory of liability or of the soundness of the view that such a liability exists. Prima facie, as has been remarked,^^^ "it would be difScult to say that a contract bfetween the landlord and tenant could give third per- sons a right to sue the landlord." The contract by the landlord cannot be regarded as made for the benefit of any person who may happen to be injured by a condition on the premises which would have been obviated had the contract been performed, and consequently the person injured would have no right of action upon the contract, even in jurisdictions where the beneficiary of a contract made with another is allowed to sue thereon,*"* and even conceding that damages for such injuries could be recovered in an action on the contract, as distinguished from an action of tort.^^5 The landlord's liability, consequently, if it exists at all, must be in tort and not in contract. As to the theory of avoidance of circuity of action, this is, as has been remarkcid in this particular connection,«36 "g, questionable principle at best, and peculiarly one of last resort and one whose operation thus broadly applied is counter to every just notion of privity of action." Moreover it assumes that, in case of a recovery by the person injured, as against the tenant, of a judgment for damages, the tenant could, in an action against the landlord on the contract, recover the amount of such judgment, which he has been compelled to pay. Whether A's subjection to such a judg- ment in favor of a third person, for injuries which would not have occurred had B performed his contract to repair, would be a proper ground of recovery in an action by A against B for nonperformance of the contract, is open to most serious ques- 632Boyce v. Tallerman, 183 111. ess See ante, § 87 d (10). 115, 55 N. B. 703. 836 6 Am. Law Rev. at p. 629, In the 833 Per Coleridge, J., in Russell v. course of an able and suggestive Shenton, 3 Q. B. 449. article by Joseph. Willard, Esq., of the 63* See article by Professor Willis- Boston bar, on "Responsibility for ton in 15 Harv. Law Rev. at p. 803; the Condition of Demised Premises." Hammon, Contracts, 714. 702 PHYSICAL CONDITIONS. § 107 tion. Neither the injury to a third person nor a recovery by him would seem to have been within the contemplation of the parties at the time of the making of the contract. In other words, a contract to make repairs should not be given the effect of a contract to indemnify against liability for injuries caused third persons by lack of repairs. It has been suggested that the landlord may be held liable, by reason of his contract to make repairs, for injuries received by a third person, on the theory that the landlord is, by reason of sucii contract, in control of the premises, so far as concerns the repair or lack of repair thereof. ^^'^ But it is doubtful whether one can properly be regarded as in control of premises for the purpose of imposing on him a duty as to third persons, merely because he has agreed to repair such premises."^** That the lessor reserves the right to make repairs, -without contracting to make them, has been held to impose no liability upon him for injuries caused by the lack of repair.®^^ There are in England decisions to the effect that the lessor is exempt from liability for injuries caused by conditions existing at the time of the demise, if the lessee has contracted to make repairs, the theory being that, by thus devolving the duty of re- 637 Burdick v. Gheadle, 26 Ohio St. which we have been referred, im- 393, 20 Am. Rep. 767. plies something more than the right «38 In the recent case of Cavalier v. or liability to repair the premises. Pope [1906] App. Cas. 428, it is said It implies the power and the right by Lord Atkinson, in an opinion to admit people to the premises and concurring with those of the other to exclude people from them. But, judges, "It was insisted upon by the this power and this right belong to appellant's counsel that the premises the tenant, not to the landlord, and were under the control of the land- the latter's contract to repair can- lord because of his agreement to re- not transfer them to him. The exis- pair. I have been quite unable to fence of such an agreement may en- follow the reasoning by which that title a landlord to demand from his conclusion has been arrived at. In tenant admission to the premises 'for Miller v. Hancock [1893] 2 Q. B. 177, the servants and workmen required and Hargroves, Aronson & Co. v. to carry out his contract, but noth- Hartopp [1905] 1 K. B. 472, the land- ing in the shape of control." lord was held liable because control esoAhern v. Steele, 115 N. Y. 203, was retained by him; but the power 22 N. E. 193, 5 L. R. A. 449, 12 Am. of control necessary to raise the duty, St. Rep. 778. And see Clifford v. At- for a breach of which damages were lantic Cotton Mills, 146 Mass. 47, 15 recovered in the several cases to N. E. 84, 4 Am. St. Rep. 279. § 107 LANDLORD'S OBLIGATIONS TOWARDS THIRD PERSONS. 703 pairs on the lessee, the lessor shows that he does not ' ' authorize the premises to be kept in a dangerous state.""*** This theory of authorization as a basis of the lessor's liability has been before referred to,^*^ and it does not seem that such liability, imposed by a rule of law, should be excluded merely by the lessee's cove- nant to undertake the duties which the lessor owes in this respect to the public generally. That a lessor cannot thus relieve himself from liability for a dangerous condition existing in connection with the premises at the time of the lease, by exacting a covenant to repair from the lessee, has been decided in several cases in this country.^*^ In Massachusetts, however, there are to be foimd expressions favoring the English view,®** and the highest court 040 Pretty v. Bickmore, L. R. 8 C. enant of the lessee to keep in repair P. 401; Gwinnell v. Earner, L. R. 10 absolved the lessor from that duty C. P. 658. toward the public, why Is he not 0*1 See ante, at notes 563-567. absolved without covenant? For 642 "The person injuriously affected whether or not covenanting so to do, by the ruinous state of the premises the tenant or occupant of premises is demised has no right nor privity In under the duty to the public to keep the covenant. He is not given there- them in a safe condition, so far as by a right of action against the les- the public have concern therewith." see greater nor more sure than he Folger, J., in Swords v. Edgar, 59 N. had before. He has the right with- Y. 28, 17 Am. Rep. 295. To the same out the covenant. * * * It is not effect, see Ingwersen v. Rankin, 47 so that a person upon whom there N. J. Law, 18, 54 Am. Rep. 109 ; Nug- rests a duty to others may, by an ent v. Boston, C. & M. R. Co., 80 Me. agreement solely between himself 62, 12 Atl. 797, 6 Am. St. Rep. 151; and a third person, relieve himself Odell v. Solomon, 99 N. Y. 635, 1 N. from the fulfillment of his duty. E. 408; Keeler v. Lederer Realty Surely an ineffectual attempt to full- Corp., 26 R. I. 524, 59 Atl. 855; Hel- fill it would not; as if in this case big v. Slaughter, 95 111. App. 623. insufficient repair of the pier had 643 Leonard v. Storer, 115 Mass. been made by a builder who had 86, 15 Am. Rep. 76, where the land- contracted with the lessor to do all lord was held not to be lia- that was needful to make the pier ble for injuries to a person secure for all comers. A covenant passing, caused by the fall of snow taken from a lessee, to keep in order from the roof, the decision was and repair. Is no more effectual than presumably based on the theory that a contract with a builder to the same the failure to remove the snow, and end. Both may afford an indemnity not the slope of the roof, was what to the lessor, but neither can shield caused the injury fsee ante, note him from liability. * * * if 606), but the opinion mentions the Pretty v. Bickmore, L. R. 8 C. P. 401 , fact that the tenant agreed to make is put upon the ground that the cov- all repairs. In Munroe v. Carlisle, 704 PHYSICAL CONDITIONS. § 108 of that state has gone so far as to hold that a lessor is relieved from liability, for injuries caused by the condition of a part of the building not leased by him, by a covenant on the part of the lessee of another part to save him, the lessor, harmless from any claim or damage arising in connection with the part not leased.*"* § 108. Conditions in connection with property not leased. If a building is leased in part only, the landlord is liable for defects and dangerous conditions in that part of the building not leased, resulting in injury to strangers, since he is in control of that part.8*^ On the same principle, if the owner of a building leases the various apartments therein to different tenants, the exterior parts of the building, or at least some of such parts, cannot be regarded as included in any lease, and remain under his control, and for injuries to strangers caused by defects or particular conditions in such parts he is liable as if no part of the building were under lease. ^^^ The same rule applies if he 176 Mass. 199, 57 N. B. 332, an ac- the building were not strangers. A tion against a landlord by a person lessee of a portion of a building is, injured by tbe fall of a stone from it is submitted, as great a stranger the building, the opinion lays stress as regards another portion of the on the fact that there was a cove- building as he would be as regards nant by the lessee to repair, but also another building which happened to lays stress on the fact that the lia- be owned by the same lessor. Com- bility of the stone to fall did not ap- pare Poor v. Sears, 154 Mass. 539, 28 pear at the time of the lease, three N. E. 1046, 26 Am. St. Rep. 271. years before the accident. o** Ingwersen v. Rankin, 47 N. J. e43aWixon v. Bruce, 187 Mass. 232, Law, 18, 54 Am. Rep. 109; Brunswick- 72 N. E. 978, 68 L. R. A. 248. The Balke Collender Co. v. Rees, 69 Wis. decision is based on Quinn v. Crim- 442, 34 N, W. 732, 2 Am. St. Rep. 748. mings, 171 Mass. 255, 50 N. B. 624, So the landlord has been held liable where it had been decided that one to a tenant of a part of the building adjoining owner could, by contract- for injuries caused by defective ing to maintain a partition fence, re- plumbing in a part not leased. Cit- lieve the other from any liability for ron v. Bayley, 36 App. Div. 130, 55 injuries to a third person caused by N. Y. Supp. 382. a defect therein. In the later case it ats Kirby v. Boylston Market Ass'n, is said that the person injured could 80 Mass. (14 Gray) 249, 74 Am. Dec. not maintain an action against a 682; O'Connor v. Andrews, 81 Tex. stranger who had agreed to insure 28, 16 S. W. 628 (cornice falling from the owner against liability for dam- building), ages, but that tenants of a portion of § 109 TENANT'S OBLIGATIONS TOWARDS LANDLORD. 705 retains control of some particular appurtenance used in connec- tion with several apartments or buildings, each of which is de- raised by him to a different tenant.''*^ In Massachusetts it seems to be the law that the lessor can shift the liability for injuries caused by defects in a part of a building which remains in his possession, by exacting a covenant from a lessee of another part to keep the entire building in repair,**'^ a view which, it is apprehended, would not ordinarily be indorsed. III. Tenant's Obligations Towards Landlord. § 109. To refrain from waste. a. What acts constitute waste — (1) General considerations. A tenant under lease has the right to use and enjoy the premises in the condition in which he receives them, and to take therefrom the profits of the land, whether periodical or continuous, bat cannot generally do any acts upon the premises which involve a diminution in their value, to the injury of the reversion. Such acts of injury to the reversion constitute "waste." "Waste is divided into two classes, "voluntary waste," which usually consists of affirmative acts on the part of the tenant caus- ing injury to the premises, and "permissive waste," which in- 646 Inhabitants of Milford v. Hoi- entrusted with the charge of the coal brook, 91 Mass. (9 Allen) 17, 85 Am. vault. Is employed by .the tenants to Dec. 735 (landlord liable for defects carry the coal to their apartments, in wooden awning in front of several does not relieve the landlord from shops leased by him). liability for the act of the janitor in So if the landlord of a house, parts leaving the hole open after taking In of which are leased to different ten- coal for the use of the tenants. Jen- ants, retains control of the coal hole nings v. Van Schalck, 108 N. Y. 530, in front of the building, he Is liable 15 N. E. 424, 2 Am. St. Rep. 459. In for defects therein, or for negligence New York, as before stated, the lessor in leaving it open. Canandaigua v. has been held liable for the leaving Foster, 156 N. Y. 354, 50 N. E. 971, open of the coal hole though he has 41 L. R. A. 554, 66 Am. St. Rep. 575 ; transferred the control thereof to a Stevenson v. Joy, 152 Mass. 45, 25 Nj-lessee of a part of the building. Can- E. 78. And this has been decided to andaigua v. Foster, 156 N. Y. 354, 50 be so although the negligence is that N. E. 971, 41 L. R. A. 554, 66 Am. St. of a tenant to whom he lends the Rep. 575, ante, note 583. key. Anderson v. Caulfield, 60 App. 647 See Wixon v. Bruce, 187 Mass. Div. 560, 69 N. Y. Supp. 1027. And 232, 72 N. E. 978, 68 L. R, A. 248, the fact that the landlord's janitor, ante, note 643 a. L. and Ten. 45. 706 PHYSICAL CONDITIONS. § 109 volves acts of omission rather than commission on the pari of the tenant. Permissive waste will be hereafter considered.**^ The question of what constitutes waste is determined pri- marily by the consideration whether the act results in injury to the reversioner or remainderman.^'s But acts on the part of the ten- ant, involving unauthorized alterations of the premises, are also quite frequently regarded as waste, even though their effect is to increase, or at least not to diminish, the value of the prop- erty."^" Acts thus constituting technical waste, though calcu- lated to increase the value of the premises, are known as ' ' melio- rating waste. ' ' Many, perhaps the majority, of the decisions upon the ques- tion of waste have been made with reference to the rights and obligations, not of a tenant claiming tmder a lease as against the landlord, but of a life tenant claiming under a will or settlement, or by right of dower or courtesy, as against the remainderman. The same considerations, however, ordinarily determine what constitutes waste, whether the tenant holds under a lease or otherwise, and the authorities hereafter cited, though many of them not involving questions arising under leases, may be re- garded, generally speaking, as authorities bearing upon such questions as they may arise between landlord and tenant. A merely trifling damage has, from early times, been regarded as insufficient to support an action as for waste, the judgment being entered for defendant in case the jury finds for the plain- tiff in merely nominal damages.®"! In determining whether particular acts constitute waste, the condition and usages of the particular locality are to be con- sidered, a thing thus constituting waste in one locality which is not waste in another.852 it is said, indeed, that no act is waste 048 See post, § 113. osi Co. Litt. 54a; Harrow School v. «*» Doe d. Grubb v. Burlington, 5 Alderton, 2 Bos. & P. 86; Doe d. Barn. & Adol. 507; Pynchon v. Grubb v. Burlington, 5 Barn. & Adol. Stearns, 52 Mass. (11 Mete.) 304, 45 507; Doherty v. Allman, 3 App. Gas. Am. Dec. 207; King v. Miller, 99 N. 733; Sheppard v. Sheppard, 3 N. C. C. 583, 6 S. E. 660; Proffitt v. Hen- 382. derson, 29 Mo. 325; McGregor v. esz pynchon v. Stearns, 52 Mass. Brown, 10 N. Y. (6 Seld.) 114. But (11 Mete.) 304, 45 Am. Dec. 207; see Livingston v. Reynolds, 26 Wend. Drown v. Smith, 52 Me. 141; King v. (N. Y.) 115. Miller, 99 N. C. 583, 6 S. E. 660. 050 See post, at notes 713-723. § 109 TENANTS OBLlGATrONS TOWARDS LANDLORD. 707 which is sanctioned by a prevailing local usage, unless such usage is excluded by the instrument of demise.^^* The general tend- ency of the American courts has been to restrict the application of the English law of waste, in order to adapt it to the conditions of a new and growing country, and to stimulate the development of the land by the tenant in possession.^54 Even though an act or series of acts on the part of the tenant result in injury to the reversion, he is not guilty of waste if there was merely a reason- able and proper user of the tenement, having regard to the class to which it belongs-^'^s There is a decision to the effect that the act of the tenant in defacing the buildings on the premises by smearing offensive and greasy matter thereon did not constitute waste, the injury not being of a permanent character, and being reparable by mere cleansing.^56 There has, apparently, been no other decision with reference to whether such action by a particular tenant consti- tutes waste. The question whether waste has been committed is, in an action at law, usually regarded as one for the jury under the instruc- tions of the court, depending, as it does to a great extent, on mat- ters of fact, such as the custom of the neighborhood, the character of the premises, the reasonableness of the use made thereof, the actual commission vel non of the acts charged, and whether the 653 Per Lindley, L. J., In Dashwood The tenant is not liable as for V. Magniac [1891] 3 Ch. 306_. So In waste because he turns cattle into a Tucker v. Linger, 21 Ch. Div. 18, it field without fencing young trees was held not to be waste for a ten- therein, the landlord having reason, ant for years to collect and sell flints from the fact that the premises were turned up in plowing, this being in leased as a dairy farm, to know that accordance with a local custom. cattle would be placed in the field. 854 4 Kent, Comm. 76; Gaines v. Fowler v. Johnstone, 8 Times Law Green Pond Iron Min. Co., 33 N. J. R. 327. But negligently allowing Eq. (6 Stew.) 603; Pynchon v. cattle to go into an orchard has been Stearns, 52 Mass. (11 Mete.) 304, 45 regarded as waste. Warder v. Henry, Am. Dec. 207; Clemence v. Steere, 117 Mo. 530, 23 S. W. 776. 1 R. I. 273, 53 Am. Dec. 621; King ese Bandlow v. Thieme, 53 Wis. 57, V. Miller, 99 N. C. 583, 6 S. E. 660; 9 N. W. 920. The court held that it Drown v. Smith, 52 Me. 141; Findlay was an action, not for waste, but for V. Smith, 6 Munf. (Va.) 134, 8 Am. malicious and willful injury to land. Dec. 733; Chase v. Hazleton, 7 N. H. and consequently could be brought 171; ProfBt v. Henderson, 29 Mo. 325. before a justice of the peace. 655 Saner v. Bilton, 7 Ch. Dlv. 815. 708 PHYSICAL CONDITIONS. § 109 premises have been injured by such acts.®^'^ Certain acts, how- ever, may be so clearly injurious to the premises and beyond the power of the tenant to commit as to constitute waste as matter of law, and the court would no doubt in any such case control the verdict of the jury in that regard.®^* (2) Alteration in character of land. An alteration in the character of land leased, as by the conversion of meadow into arable land, or of arable land into wood, or e converso, has been usually stated to be M^aste, the reasons given being, firstly,. that the course of husbandry is thereby changed, and, secondly, that the identity of the property is affected, with the result of rendering the proof of title more diificult.^^' The first reason for the rule has been stated to be inapplicable in this country, where the custom has ordinarily been for farmers to change the mode of using land ad libitum,^^'' and the second reason is likewise inap- plicable, since land is almost invariably, at the present day, de- scribed by metes and bounds or courses and distances, or by reference to a plat or survey, and not by its particular charac- ter.**i And it was held in one case that the ploughing of certain meadow land was not waste, it being shown by evidence that such plowing was good husbandry.®^^ Still an entire change in the character of the premises leased, if evidently not contemplated by the lessor at the time of leasing, as, for instance, if land which has previously been used for pasture purposes only is entirely ploughed up and planted with crops, might well be regarded by the courts as an act of waste, without reference to whether it actually lessens the value of the land.^** The conversion of 66T Agate V. Lowenbein, 57 N. Y. 7 Bing. 640 ; Murphy v. Daly, 13 Ir. 604; Hasty v. "Wheeler, 12 Me. 434; C. L. 239. Webster v. Webster, 33 N. H. 18, 66 eeo Pynchon v. Steams, 52 Mass. Am. Dec. 705; Jackson v. Tibbits, (11 Mete.) 304, 45 Am. Dec. 207; 3 Wend. (N. Y.) 341; Young v. Spen- Clemence v. Steere, 1 R. I. 272, 53 cer, 10 Barn. & C. 145. See post, Am. Dec. 621. See 3 Dane's Abr. 218. note 697. esi Pynchon v. Stearns, 52 Mass. 658 See McGregor v. Brown, 10 N. (11 Mete.) 304, 45 Am. Dec. 207; Y. (6 Seld.) 114, as explained In Clemence v. Steere, 1 E. I. 272, 53 Agate V. Lowenbein, 57 N. Y. 604. Am. Dec. 621. See 3 Dane's Abr. 218. 659 Co. Litt. 53 b; Bac. Abr. cea Hubble v. Cole, 85 Va. 87, 7 S. Waste, e. 1; City of London v. E. 242. Greyme, Cro. Jac. 181 ; Darcy v. Ask- ess in Chapel v. Hull, 60 Mich. 167, with. Hob. 234; Simmons v. Norton, 26 N. W. 874, it was held that the § 109 TENANT'S OBLIGATIONS TOWARDS LANDLORD. 709 meadows and pasture land into a cemetery has been enjoined on the theory that it would constitute wastCj^*** and there is one decision to the effect that depositing large quantities of refuse material on the premises, so as to raise the surface thereof several feet, and so alter the nature of the land demised, constitutes waste.<"'s (3) ■ Diminution in value of land. Acts by the tenant involving actual diminution in the value of the land ordinarily constitute waste ; as where the tenant undertook to plow up strawberry beds in actual bearing,^*^ or to sew a crop of a peculiarly noxious qual- ity which would take several years to eradicate.*®'' In this last case the sowing of the noxious crop was with the intention of in- juring the land, and mere injudicious and unhusbandlike farming has been held not to be waste,®*® though it apparently constitutes a breach of an implied contract on the tenant's part as to cultiva- tion.®** As elsewhere stated, in some cases at least, acts of the tenant may constitute waste although they do not actually de- crease the value of the premises.*^" (4) Removal of earth and minerals. A particular tenant, such as a tenant for life or years, has, in the absence of a stipulation or license allowing him so to do,*'''"' no right to take clay, gravel, soil, and the like, unless such material was one of the recognized profits of the land before the commencement of his tenancy,*''' nor can he open new quarries, mines, or oil or gas wells, unless plowing up of all the meadow land e'o See ante, § 109 a (3). on the farm leased was waste and eroa See ante, § 7 c. would be restrained. The court «" Co. Litt. 53 b; Whitham v. Ker- speaks of this as involving an un- shaw, 16 Q. B. Div. 613; Doe d. Wood husbandlike use of the farm. v. Morris, 2 Taunt. 52; United States 664 Hunt V. Browne, Sausse & S. v. Bostwick, 94 TJ. S. 53, 24 Law. Ed. 178. Here the tenant held under a 65; Smith v. City of Rome, 19 Ga. lease for lives, renewable forever. 89, 63 Am. Dec. 298; University v. 666 West Ham Central Charity Tucker, 31 W. Va. 621, 8 S. E. 410 ; Board v. East London Waterworks Coates v. Cheever, 1 Cow. (N. Y.) Co. [1900] 1 Ch. 624. 460; Reed's Bx'rs v. Reed, 16 N. J, 666 Pratt V. Brett, 2 Madd. 62. Eq. (1 C. E. Green) 248. Compare 667 Watherell v. Howells, 1 Camp. Gulf C. & S. F. R. Co. v. Settegast, 79 227. Tex. 256, 15 S. W. 228. The tenant 668 Richards v. Torbert, 3 Houst. may, however, take clay or gravel (Del.) 172; Harris v. Mantle, 3 Term for the repair of the house on the R. 307; 10 Bac. Abr., Waste, p. 423. same principle on which he may 669 See post, § 119 a (1). take wood for that purpose, under the law of estovers. Co. Lltt. 53 b. 710 PHYSICAL CONDITIONS. § 109 he is expressly given such right.®^^ Quarries, mines, or wells, however, which were opened before the commencement of the tenancy in question, may be worked by the tenant, it being con- sidered that tlie previous owner, by such opening, made the min- erals a part of the regular profits of the land.^'^^ And an open mine, it is held, may be worked even to exha.ustion.®''* The mine or quarry cannot be worked by the tenant for general pur- poses, as I'or sale, if, previous to his tenancy, it was worked merely for some other and j-estricted purpose, as for the repair of par- ticular buildings,*'"^ If the work in a mine was discontinued before the beginning of thctenancy, and the discontinuance was such as apparently to show an intention on the part of the previous owner to demote the land to other uses, the tenant cannot work it, though he may do so if the discontinuance was owing to lack of sale for the minerals, to want of capital, or to a like reason.^''^ And the right to work a mine or quarry which is already opened includes the right to sink new shafts on the same vein, or break new ground on the same rock, but not to work new veins.®'^ o'a Co. Litt. 53 b; Astry v. Ballard, enbur, 2 Abb. Dec. (N. Y.) 189, 34 2 Mod. 193; Saunders' Case, 5 Coke, How. Pr. 449. 12 a; Stoughton v. Leigh, 1 Taunt. sti Sayers v. Hosklnson, 110 Pa. 410; Owings v. Emery, 6 Gill (Md.) 473, 1 Atl. 308; Irwin v. Covode, 24 260; Harlow v. Lake Superior Iron Pa. 162, 62 Am. Dec. 372; Koen v. Co., 36 Mich. 105; Williamson v. Bartlett, 41 W. Va. 559, 23 S. B. 664, Jones, 43 W. Va. 562, 27 S. E. 411, 56 Am. St. Rep. 884. 64 Am. St. Rep. 891. See Ison v. ers Elias v. Snowdon Slate Quar- Rex Crude Oil Co., 147 Cal. 659, 82 ries Co., 4 App. Cas. 454. But see Pac. 317. Neel v. Neel, 19 Pa. 323, wher? a 873 Co. Litt. 54 b; Astry v. Ballard, different view was taken as to the 2 Mod. 193; Gaines v. Green Pond rights of a life tenant not holding Iron Min. Co., 33 N. J. Bq. (6 Stew.) under a lease. 603; McCord v. Oakland Quicksilver ere Gaines v. Green Pond Iron Min. Min. Co., 64 Cal. 134,. 27 Pac. 863, 49 Co., 32 N. J. Bq. (5 Stew.) 86; Bagot Am. Rep. 686; Findlay v. Smith, 6 v. Bagot, 32 Beav. 509. See Stough- Munf. (Va.) 134, 8 Am. Dec. 733; ton v. Leigh, 1 Taunt. 402. Lynn's Appeal, 31 Pa. 44, 72 Am. err Clavering v. Clavering, 2 P. Dec. 721; Moore v. Rollins, 45 Me. Wms. 388; Elias v. Snowdon Slate 493. This rule has been held to Quarries Co., 4 App. Cas. 466; Gaines be inapplicable, however, if the v. Green Pond Iron Min. Co., 33 N. premises were, by the express terms J. Eq. (6 Stew.) 603; Billings v. of the lease, to be used for agricul- Taylor, 27 Mass. (10 Pick.) 460; tural purposes only. Freer v. Stot- Moore v. Rollins, 45 Me. 493; Irwin § 109 TENANT'S OBLIGATIONS TOWARDS LANDLORD. 71 1 It has been decided in Canada, and presumably would be so decided in any jurisdiction, that in the case of a lease of land which is evidently for agricultural purposes, the lessee may re- move stones in the land for the purpose of putting it into condi- tion for agriculture.*''^ (5) Deistruction of trees and timber. Trees are, for the pur- pose of the law of waste, divided in England into "timber" trees and trees not timber. Some trees, such as oak, ash, and elm, seem to be invariably regarded as timber, but other trees may be, and frequently are, timber by the custom of the particular neigh- borhood. Trees are not, however, considered timber until twenty years of age, and, by custom, may require even a greater age in order to be so considered.*''* This distinction between timber trees and trees not timber has, in that country, important results. Timber trees are considered as part of the inheritance, and con- sequently a tenant has no right to cut them except upon land where it has been the custom to fell seasonable wood at intervals as part of the regular profits.**" Trees' not timber the tenant for life may cut, generally speaking, provided such cutting does not injure the inheritance. The tenant may accordingly cut under- wood, provided he does not destroy the stubs from which it grows, such Tyood being for this purpose like an ordinary crop on the land,**i and a tenant may cut ' ' dotards, ' ' or dead trees.^^a Trees of the nature of timber trees, but which are as yet too young to be timber, can be cut only for the purpose of thinning the growth for the benefit of other trees.**^ Fruit trees cannot be cut,*** nor trees other than timber, if beneficial to the inheritance, such V. Covode, 24 Pa. 162, 62 Am. Dec. rights of a tenant for life under a 372; Flndlay v. Smith, 6 Munf. (Va.) devise or settlement. Presumably a 134, 8 Am. Dec. 733. tenant under a lease would have the- 678 Lewis, v. Godson, 15 Ont. 252. same right, but the matter would al- See dictum to the same effect in inost invariably be controlled by tha Dearden v. Evans, 5 Mees. & W. 11. covenants of the lease. 879 Co. Litt. 53 a; Bewes, Waste, ssi Co. Litt. 53 a; Bewes, Waste, 98; Honywood v. Honywood, L. R. 58; Phillips v. Smith, 14 Mees. & W. 18 Eq. 306; Dashwood v. Magnlac 589. [1891] 3 Ch. 306. «82 Co. Litt. 53 a; Herlakenden's esoperrot v. Perrot, 3 Atk. 94; Case, 4 Coke, 62. Ferrand v. Wilson, 4 Hare, 344; ess Honywood v. Honywood, L. R. Dashwood v. Magniac [1891] 3 Ch. 18 Eq. 30«. 306. TJiese cases all involved the "si Bewes, Waste, 95 ; Co. Litt. 53 a. 712 PHYSICAL CONDITIONS. § 1C9 as willows protecting the banks of streams, and ornamental trees.®*^ In this country, what constitutes waste as regards timber is determined generally by considerations both of the purpose of the cutting and its effect 'upon the value of the inheritance. In view of the quantity of land which is here available for use only by clearing away the timber thereon, it is usually held that a tenant is not guilty of waste if he cuts timber to a reasonable extent in order that he may cultivate the soil, and the fact that he sells the timber so cut^ is immaterial.**^ But cutting is waste if it decreases rather than enhances the value of the land,**^ or if the real purpbse of the cutting is the sale of the timber,*** or some other purpose not conducive to the benefit of the land.**" The question is, it is said, to be determined with reference to what one would do, in the exercise of good husbandry, if he were the owner of the fee,*^* and also with regard to the custom of the neighbor- ess co. Lltt. 53 a; Honywood v. 29 Am. Dec. 72; Jackson v. Brown- Honywood, L. R. 18 Bq. 309; Phil- son, 7 Johns. (N. Y.) 227, 5 Am. Dec. lips V. Smith, 14 Mees. & W. 589. 258; Proffltt v. Henderson, 29 Mo. 685aKeeler v. Eastman, 11 Vt. 293; 325; Dlsher v. Disher, 45 Neb. 100, 63 Drake v. Wigle, 24 U. C. C. P. 405; N. W. 368; "Warren County v. Gans, Kidd V. Dennison, 6 Barb. (N. Y.) 80 Miss. 76, 31 So. 539. 9 ; Jackson v. Browning, 7 Johns. ess Johnson v. Johnson, 18 N. H. (N. Y.) 227, 5 Am. Dec. 218; Cannon 594; Davis v. Gilliam, 40 N. C. (5 v. Barry, 59 Miss. 289; King v. Mil- Ired.) 308; Smith v. Smith, 105 Ga. ler, 99 N. C. 583, 6 S. E. 660; Daw- 106, 31 S. E. 135; Warren County v. son V. Coffman, 28 Ind. 220; Sayers Gans, 80 Miss. 76, 31 So. 539; Moss V. Hosklnson, 110 Pa. 473, 1 Atl. 308; Point Lumber Co. v. Board of Super- Owen V. Hyde, 14 Tenn. (6 Yerg.) visors of Harrison County, 89 Miss. 334, 27 Am. Dec. 467; Wilkinson v. 448, 42 So. 290; Davis v. Clark, 40 Wilkinson, 59 Wis. 557, 18 N.W. 513; Mo. App. 515; Modlin v. Kennedy, Disher v. Disher, 45 Neb. 100, 63 N. 53 Ind. 267; Lester v. Young, 14 R. W. 368. I. 579; Morehouse v. Cotheal, 22 N. 6S6 Wilkinson v. Wilkinson, 59 J. Law (2 Zab.) 521; Padelford v. Wis. 557, 18 N. W. 513; Cannon v. Padelford, 24 Mass. (7 Pick.) 151; Barry, 59 Miss. 289; King v. Miller, Noyes v. Stone, 163 Mas FIndlay v. Smith, 6 Munf. (Va.) no right to sell trees from another ^^*- ^ ^^- I^^c. 773. In this case part of the land. Ladd v. Shattock. ^be tenant was one for life under a devise. 701 Campbell v. Shields, 44 U. C. Q. B. 449. striated to a particular part of the .^.^ee v. Hawks, 68 Miss. 669, 9 premises. Jones v. Gammon, 123 go. g28 13 L R A 633 Ga. 47, 50 S. B. 982. 702 See Wald's Pollock, Contracts 699 Den v. Kinney, 5 N. J. Law (2 (Williston's Ed.) p. 823. Southard) 552. So where a mine 703, 704 See 1 Tiffany, Real Prop. p. was leased with the right to smelt 530. 90 Ala. 134, 7 So. 764. And so where the right to cut wood is expressly re- §109 TENANT'S OBLIGATIONS TOWARDS LANDLORD. 715 at the time of the demise, and also for repairing implements of hiisbandry, and he may, moreover, take sufficient wood to burn in the house, or it seems, in houses occupied by his servants. The timber which he is thus entitled to take is known as ' ' estovers ' ' or " botes. "''"^ He is, however, guilty of waste if he cuts down growing wood when there is sufficient dead timber for the purpose, or if he takes superior, rather than inferior trees, and likewise if he takes more than a reasonable amount, or if he sells the timber so cut.'**® He has no right to take timber for repairs which have been rendered necessary by his own fault.^**^ He can, iij- stead of using the timber from the premises for the purpose of repairs, exchange that timber for other timber to be used for the repairs, if, it seems, this is a clear saving to the reversioner or remainderman, and not otherwise.''"'^ The question whether trees 70B Co. Litt. 41 b, 53 b; Smith v. jure the reversion. The note to this Jewett, 40 N. H. 530; Padelford v. case, in the Lawyers' Reports An- Padelford, 24 Mass. (7 Pick.) 152; notated, vol. 68, at p. 641, states at Walters v. Hutchins' Adm'x, 29 Ind. length the various cases on the sub- 136; Calvert v. Rice, 91 Ky. 533, 16 ject of estovers. S. W. 351 ; Gardiner v. Derring, 1 707 Co. Litt. 53 b. Paige (N. Y.) 573; London v. War- 708LfOomis v. Wilbur, 5 Mason, 13; field, 28 Ky. (5 J. J. Marsh.) 196; Ped. Cas. No. 8,498; Miller v. Harris v. Goslin, 3 Har. (Del.) 340; Shields, 55 Ind. 71. See King v. Hubbard v. Shaw, 94 Mass. (12 Al- Miller, 99 N. C. 583, 6 S. E. 660. In len) 120; Wright v. Roberts, 22 Wis. the case first cited, the statement 161. ' in Co. Litt. 53 b, that it is waste if 708 Co. Litt. 53 b; Simmons v. Nor- the tenant sells trees and makes re- ton, 7 Bing. 640; Doe d. Foley v. Wll- pairs with the proceeds, is regarded son, 11 East, 56; Johnson v. Johnson, \yy Story, J., as referring to a case 18 N. H. 594; Padelford v. Padelford, in which the original cutting was 24 Mass. (7 Pick.) 152; Phillips v. wrongful as not being made for the Allen, 89 Mass. (7 Allen) 115. ' purpose of procuring means to make In Anderson v. Cowan, 125 Iowa, repairs, which wrongful cutting 259, 101 N. W. 92, 68 L. R. A. 641, could not be legalized by the subse- 106 Am. St. Rep. 303, the tenant's quent application of the proceeds to right to estovers for firewood is repairs. clearly recognized, but it is restricted In In re Williams, 1 Misc. 35, 22 by the language of the opinion, it N. Y. Supp. 906, It is held that a seems, to cases In which the trees tenant given the right to cut timber cut are of such a character as are for fencing could cut and sell tim- usually cut for use as firewood and bar to pay for fencing. in which such cutting does not in- 716 PHYSICAL CONDITIONS. § 109 have been cut down in good faith for the purpose of repairs has been regarded as one for the jury.''"* (7) Alteration or removal of buildings or otbsr fixtures. The tenant is ordinarily guilty of waste if he removes buildings or other structures, or parts thereof, which were annexed to the land at the time of the lease.^^o It is said by Coke that "if glass windows (though glazed by the tenant himself,) be broken down or carried away, it is waste, for the glass is part of his house. And so it is of wainscot, benches, doors, windows, furnaces and the like, annexed or fixed to the house, either by him in the rever- sion or the tenant. "^^1 This statement must, however, be accepted subject to the rights of the tenant, under the modern law of fix- tures, to remove articles annexed by him.'^i^ Generally speaking, it seems, a tenant holding under a lease has no right to destroy a building on the premises even for the sake of erecting a more valuable one in its stead, nor to make considerable alterations in a building without the landlord's con- sent, even though these increase its value. It is stated by an old authority that the substitution of a larger for a smaller house is waste because it increases the charge for repairs,^i* and such a reason might have weight at the present day. Another reason, upon which the older authorities lay much stress, for regarding a substantial alteration in the character of a building, even though beneficial, as constituting waste, is that thereby the means of 709 Doe d. Foley V. Wilson, 11 East, v. Irvine's Ex'rs, 13 Pa. 438; Cor- 56; Agate v. Lowenbeln, 57 N. Y. 604. nish v. Strutton, 47 Ky. (8 B. Mon.) A tenant authorized to take wood 586; Davenport v. Magoon, 13 Or. 3, and fuel for repairs and fuel cannot 4 Pac. 299, 57 Am. Rep. 1; United it has been held, take it for other pur- States v. Bostwick, 94 U. S. 53, 24 poses, or justify such action on the Law. Ed. 65; Bass v. Metropolitan ground that he took no more than West Side El. R. Co., 53 U. S. App. he was authorized to take for repairs 542, 27 C. C. A. 147, 82 Fed. 857; and fuel, and that he procured else- Palmer v. Young, 108 111. App. 252; where that needed for these purposes. Champ Spring Co. v. B. Roth Tool Clarke v. Cummings, 5 Barb. (N. Y.) Co., 103 Mo. App. 344, 77 S. W. 344, 339. Here, however, the character 12 L. R. A. 187; Smith v. Chappell, of the wood taken seems to be a 25 Pa. Super. Ct. 81. factor in the decision. ^ii Co. Litt. 53 a. 710 Co. Litt. 53 a; Dooly v. String- 712 See post, § 240. ham, 4 Utah. 107, 7 Pac. 405; Chal- 7132 Rolle, Abr., Waste, p. 815, mers v. Smith, 152 Mass. 561, 26 N. pi. 18. E. 95, 11 L. R. A. 769; McCullough § 109 TENANT'S OBLIGATIONS TOWARDS LANDLORD. 717 identifying the premises are diminished and the evidence of title is consequently affected J" This latter reason, however, is of little, if any weight, at the present day, when property is de- scribed by metes and bounds, or courses and distances, or with reference to a plat or surveyJ^^ But there is, it seems, a more fundamental consideration which has moved the courts to regard as waste any considerable alteration by the tenant in the premises leased, and that is, that by a lease the lessee is given merely the right to use and not to alter the building, and that the landlord has a right to receive back, at the end of the term, the very thing which he has leased. So it is said in early cases that the con- version of a brew house into a dwelling house, producing a greater net rental, is waste, "because of the alteration of the nature of the thing, '"'I ^ and that it is waste if the lessee tears down a wall between a parlor and a chamber "because it cannot be intended for the benefit of the lessor, and it is not in the power of the lessee to transpose the house. "'^^'^ In a recent case it is said: "The importance of this rule (that the lessee cannot alter the thing leased) to the landlord or owner of the future estate cannot be denied. Especially is it valuable and essential to the pro- tection of a landlord who rents his premises for a short time. He has fitted his premises for certain uses. He leases them for such uses, and he is entitled to receive them back at the end of the term still fitted for those uses ; and he may well say that he does not choose to have a different property returned to him from that which he leased, even if, upon the taking of testimony, it may be found of greater value by reason of the change, "''i* In accordance with this doctrine, it has been decided in this country that the demolition of a building will be restrained although for "*See Cole v. Green, 1 Lev. 308; TieCole v. Green, 1 Lev. 308. City of London v. Greyme, Cro. Jac. 717 2 Rolle, Abr., 8IS, pi. 19. 181; Young v. Spencer, 10 Barn. £ 'isMelms v. Pabst Brew. Co., 104 C. 145; Brooke v. Kavanagh, L. R. Wis. 7, 79 N. W. 738, 46 L. R. A. 23 Ir. 97. 478, per Winslow, J., -where, how- 71S See Pynchon v. Stearns, 52 ever, the decision was that a life Mass. (11 Mete.) 304, 45 Am. Dec. tenant, not holding under a lease, 207; Melms v. Pabst Brew. Co., 104 was not restricted in the same way Wis. 7, 79 N. W. 738, 46 L. R. A. in thlsi regard as a lessee. The 478; Doherty v. Allman, 3 App. Cas. opinion contains an able discussion 709. of the law of waste. 718 PHYSICAL CONDITIONS. | 109 the purpose of substituting a better one/i» and a like ruling has been made in EnglandJ^" Likewise it has been decided in this country that waste may consist in the removal of partitions/^i in the opening of a doorway in an outer wall/^^ qj. the erection of a chimney/23 without reference to the question whether such alterations actually decrease the value of the premises. The obligation of a tenant to refrain from the substantial altera- tion of a building may be modified, it seems, by the fact that his lease has a great length of time to run, so that he may be regarded to a considerable extent as the absolute owner, while the value of the reversion is comparatively slight."24 And occasionally, per- haps, the necessity of some alterations in order to make the prem- ises reasonably fit for the business for which they were leased may justify the making of themJ^s The removal of a valueless build- 719 Davenport v. Magoon, 13 Or. 18, 37 Atl. 469. And so when win- 3, 4 Pac. 299, 57 Am. Rep. 1. In dows were changed into doors con- Dooly V. Strlngham, 4 Utah, 107, 7 nected with passage ways to other Pac. 4(>5, a widow having a life es- buildings. Peer v. Wadsworth, 67 tate was enjoined from tearing N. J. Eq. 191, 58 Atl. 379. down a building, though she intend- '23 Brock v. Dole, 66 Wis. 142, 28 ed to build a better one. N. W. 334. 720 Smyth v. Carter, 18 Beav. 78. 724 See Doherty v. Allman, 3 App. And see Brooke v. Kavanagh, L. R. Cas. 709, where the House of Lords 23 Ir. 97; West Ham Central Charity refused an injunction to restrain a Board v. East London Waterwork tenant under a lease for 999 years Co. [1900] 1 Ch. 624. But compare from converting store buildings in- the remarks on Smyth v. Carter, 18 to dwelling houses, the neighhor- Beav. 78, supra, in Doherty v. All- hood having changed so as to do man, 3 App. Cas. 709. away with any demand for store 721 Agate V. Lowenbein, 57 N. Y. buildings. And so in Crowe v. Wll- 605, where the principle that no son, 65 Md. 479, 5 Atl. 427, 57 Am. such alteration, however beneficial. Rep. 343, it was decided that a ten- of the building, can ordinarily be ant under a lease renewable forever made. Is clearly asserted, but the could make alterations provided the case really turned upon the question security for rent was not Impaired, whether the alterations were harm- And see Klie v. Von Broock, 56 N. J. less and required by the tenant's Eq. 18, 29, 37 Atl. 469, for dicta to business so as to be within a per- the same effect. mission in the lease to make altera- 725 See Klie v. Von Broock, 56 N. tions. See, also, Wotton v. Wise, J. Eq. 29, 37 Atl. 469, where Pitney, 47 N. Y. Super. Ct. (15 Jones & S.) V. C, says: "If a building be erect- S15. ed and let for a hotel, and through 722 Klie V. Von Broock, 56 N. J. Eq. some oversight or miscalculation § 109 TENANT'S OBLIGATIONS TOWARDS LANDLORD. 719 ing by a life tenant, not holding under a lease, has been decided not to be an act of waste, where the removal was necessary, owing to changing conditions, for the profitable use of the property^,^^^ but it appears from the same case that a different view would be taken in the case of a tenant holding under a lease, at least if it had but a few years to run. (8) Erection of building or other structure. The construction of a building on the leased land, in a place where there was none before, is not waste, it seems, unless this results in an injury to the reversion,''^? or unless, apparently, it involves an alteration of the character of the land, as when the tenant of agri- cultural land covers it with buildings so as to render it useless for agricultural purposesJ^s jt j^as been asserted that a tenant under a lease may erect fences on the land as he may pleaseJ^s (9) Improper user of buildinif. A tenant is, apart from express stipulations, not liable for injury to buildings resulting from a some mistake In the interior ar- if he suffered it to be wasted, it is rangements occurs which materially a new waste," is, it has been said, interferes with its beneficial use for "to be understood with the condi- that purpose, and requires a change, tlon that the new house or building it is probable that the right to make affects the inheritance of the land such change could properly be in- in a manner which the law recog- ferred from the circumstances." nizes to be Injurious." Leake, Uses And see Doherty v. Allman, 3 App. & Profits of Land, 95. Gas. 709, and Melms v. Pabst Brew. The erection of a building for Co., 104 Wis. 7, 79 N. W. 738, 46 L. purposes of the tenant's trade, to be R. A. 478, where the fact that the removed by him at the end of the alteration of the buildings was nee- lease without injury to the land, is essary for the profitable use of the not waste. Hubble v. Cole, 85 Va. premises is emphasized in justify- 87, 7 S. B. 242. ing the making of it by the tenant. 728 in Brooke v. Mernagh, L. R. 726 Melms V. Pabst Brew. Co., 104 23 Ir. 86, and Brooke v. Kavanagh, Wis. 7, 79 N. W. 738, 46 L. R. A. 478. L. R., 23 Ir. 97, where the tenant had And see Sherrill v. Connor, 107 N. erected dwellings on the leased C. 630, 12 S. E. 588. premises, an agricultural holding, 72T Jones V. Chappell, L. R. 20- Bq. in order to aid the "plan of cam- 539; Wlnshlp v. Pitts, 3 Paige (N. paign" which was, in the eyes of Y.) 259, 24 Am. Dec. 218; Pynchon the law, an illegal conspiracy, an V. Stearns, 52 Mass. (11 Mete.) 304, injunction issued to restrain any 45 Am. Dec. 207; Meux v. Cobley further erections and to compel the [1892] 2 Ch. 262. See Viner's Abr., removal of the dwellings already Waste, p. 439, pi. 22. The statement erected. In Co. Lltt. 53 a, that "if the tenant 729 Donason v. Walker, 87 111. 231. build a new house, it is waste, and 720 PHYSICAL CONDITIONS. §109 reasonable use of them for the purpose for which they were in- tended. "No user of a tenement" it has been said, "which is reasonable and proper, having regard to the class to which it belongs, is waste. "^^^ Accordingly the tenant is not liable for the breaking down of a building owing to its insufficiency to sup- port a reasonable weight of goods placed in it by the tenant, he having no reason to suspect its weakness.^^i But he is liable for injuries caused by placing an unreasonable and extraordinary weight in the building,'^32 ^s he is for injuries caused by other improper use thereof,'^^^ or by any sort of negligence on the part of himself or his servants.''^* The burden is on the landlord of showing that any injury to the premises was by the tenant's fault, and unless this is shown the tenant is free from liability''"" '30 Saner v. Bllton. 7 Ch. DIv. 815. And, to the same effect, see Haas V. Brown, 21 Misc. 434, 47 N. Y. Supp. 606. '31 Saner v. Bllton, 7 Ch. Dlv. 815; Machen v. Hooper, 73 Md. 342, 21 Atl. 67; Sheer v. Fisher, 27 111. App. 464. And so the lessee has been held not to be liable for injury caused by the use of machinery In the building with the lessor's as- sent (Jennings v. Bond, 14 Ind. App. 282, 42 N. E. 957) on the ground presumably that this was a reasonable use of the premises. It would seem that, on the maxim volenti non fit injuria, the landlord could never complain of a particular use of the premises to which he has assented. '32 Moses v. Old Dominion Iron & Nail Works Co., 75 Va. 95; South- ern Oil Works v. Biokford, 82 Tenn. (14 Lea) 651; Chalmers v. Smith, 152 Mass. 561, 26 N. E. 95, 11 L. R. A. 769; Brooks v. Clifton, 22 Ark. 54; Manchester Bonded Warehouse Co. V. Carr, 5 C. P. Div. 507. '33 Anderson v. Miller, 96 Tenn. 35, 33 S. W. 615, 31 L. R. A. 604, 54 Am. St. Rep. 812; Powell v. Day- ton, S. & G. R. Co., 16 Or. 33, 16 Pac. 863, 8 Am. St. Rep. 251. '34 Mason v. Stiles, 21 Mo. 374, 64 Am. Dec. 242 (injury to building from explosion caused by negligence of servant) ; Duer v. Allen, 96 Iowa, 36, 64 N. W. 682 (fire); Zigler v. McClellan, 15 Or. 499, 16 Pac. 179 (fire); Wilcox v. Cate, 65 Vt. 478, 26 Atl. 1105 (explosion). '35 John Morris Co. v. Southworth, 154 111. 118, 39 N. E. 1099; Pinch v. Shackleford, 12 Ky. Law Rep. 322; Lynn's Appeal, 31 Pa. 44, 72 Am. Dec. 721. See, also, cases cited in reference to injury by fire, post, note 860. But in Manchester Bonded Warehouse Co. v. Carr, 5 C. P. Div. 507, it is decided that if the building is destroyed by the acts of the lessee or his undertenants, he must, to exonerate himself, show that the destruction was owing to causes for which he was not re- sponsible; for instance, if the build- ing fell upon the placing of goods therein, he must show that it fell by reason of structural weakness rather than of the excessive weight of the goods. § 109 TENANT'S OBLIGATIONS TOWARDS LANDLORD. 721 except, by the authorities generally, when the injury is caused by a direct act of commission on the part of a strangerJ^^ Occasionally the cases contain a suggestion that the liability of the tenant for injuries to the building caused by his use thereof in an improper manner is by reason of an "implied contract" not to so use the premises.''*'' A landlord cannot, after encouraging the tenant to use the building for a particular purpose which, as he knew, involved the use of heavy machinery, assert a liability on the tenant's part for injuries caused by the operation of such machineryj*^ (10) Equitable waste. The doctrine of "equitable waste," by which waste of a character not recognized at law as illegal is relieved against in equity by an injunction to prevent it, and when possible, by compelling the restoration of the thing wasted, has been fully developed in England. In this country there are but few decisions in which waste has been considered as of such a character as to be cognizable in equity and not at law, and the extent to which there is such a thing as equitable waste, as distinct from legal waste, appears doubtful. The doctrine of equitable waste is applied in England in the case of imreasonable or willful destruction by a tenant in fee simple, when there is an executory limitation over to another, and also in the case of such destruction by a tenant for life "without impeachment of waste." It has but little application even in that country, it seems, to the case of a tenant holding under a lease, since a lease seldom contains a clause, "without impeachment of waste. ' '''^^ In one state in this; country, in the case of a lease containing such a clause, recovery of damages for willful and unreasonable waste by the tenant was. allowed at law, that is, what in England would be equitable waste was treated as legal waste.^*" In another state it has been decided 736 See post, § 110. "to hold, to use and control as he 737 See Chalmers v. Smith, 152 thinks proper, for his benefit dur- Mass. 561, 26 N. K. 95, 11 L. R. A. Ing his natural life," was regarded 769; Brooks v. Clifton, 22 Ark. 54. as a lease "without impeachment of See post, at notes 775-779. waste." In Duncombe v. Felt, 81 73S Murphy v. St. Louis Type Mich. 332, 45 N. W. 1004, where a Foundry, 29 Mo. App. 541. grantee in a conveyance leased to 739 See Woodfall, Landl. & Ten. his grantors, the latter "to have as (16th Ed.) 647. full and complete control of said 740 Stevens v. Rose, 69 Mich. 259, premises as if such Conveyance had 37 N. W. 205. There a lease to one not been made," the lease was re- L. and Ten. 46. 722 PHYSICAL CONDITIONS. § 109 that the law of legal waste is not applicable to injuries by a ten- ant under a lease for ninety nine years, renewable forever, an ordinary form of lease in that state, since the tenant under such a lease has the absolute control of the property, but that equity will intervene to prevent such injuries or destruction as will affect the security for the rentJ*^ (11) Effect of express stipulations. In a number of cases the courts have been called upon to construe clauses in the lease allowing the tenant to make alteratiohs on the premises. A provision that the lessee shall have the right to make alterations, provided they do not injure the prem- ises, has been construed as allowing the tenant to make al- terations which would constitute technical waste, provided they cause no injury ,'''*2 and the same construction was placed on a covenant by the lessee not to commit waste, coupled with a pro- vision authorizing him to "repair, alter and improve the premises in such a manner as should be for his use and benefit."^** A license to the lessee to make improvements and additions was inferred from a covenant by him to repair "such improvements and additions as should be made by him," and consequently quite extensive changes were regarded as not constituting waste J** A stipulation authorizing the lessee to make "alter- ations in the building now on said lands so as to adapt it to other business than that" for which it had previously been used, does not, it has been held, confer the right to tear down a building in order to erect another in its place.''*^ A clause in the instru- ment of lease allowing the use of a steam engine in a building has been held to authorize the tenant to make openings in the walls necessary for the introduction and removal of the engine.'** The statute of Marlbridge'*'' provided that "fermors" (lease- garded as without Impeachment of 744 Doe d. Dalton v. Jones, 4 Barn, waste. Here, however, willful and & Adol. 126. unreasonable waste was prevented '^b Davenport v. Magoon, 13 Or. 3, by injunction. 4 Pac. 299, 57 Am. Rep. 1. 741 Crowe V. "Wilson, 65 Md. 479, 746 Kelsey v. Durkee, S3 Barb. (N. 5 Atl. 427, 57 Am. Rep. 343. Y.) 410. 742 Agate V. Lowenbein, 57 N. Y. 74752 Hen. 3, c. 23, § 2 (A. D. 604. 1267). 743 Hasty V. Wheeler, 12 Me. 434. § 109 TENANTS OBLIGATIONS TOWARDS LANDLORD. 723 holders) should not do waste "without special license had by writing of covenant making mention that they may do it" and it is said by Coke''''8 that such special license "ought to be by deed, for all waste tends to the disinheritance of the lessor, and therefore no man can claim to be dispunishable of waste without deed," and it has been asserted in this country that an oral per-' mission to commit particular acts of waste is invalid on the ground that this would involve a transfer of an interest in land without writing, in violation of the statute of f rauds^*" In spite of these statements, however, it seems somewhat questionable ■Whether, apart from a statute expressly so providing, an oral permission by the landlord to do acts which would otherwise constitute waste is insufficient to validate such acts, since such a permission does not involve any actual transfer of an interest in land. There is no requirement that a license to do a thing upon another's land shall be in writing, merely because the doing of such thing may affect parts of the land, though the fact that the license is oral may ren- der it revocable, while if in writing it would be irrevocable.''5o An oral license to cut trees, for instance,''^! or to take minerals from the land,'^^^ is ordinarily regarded as perfectly valid if acted on before revocation, and it is not perceived why a different rule should be applied as between landlord and tenant from that applied between strangers. In a few jurisdictions there are stat- utory provisions to the effect that a license to commit acts which would otherwise constitute waste shall be in writing.'^ss. 754 b. Remedies for waste — (1) Action for damages. At com- mon law, it is said, an action could be brought on account of waste T48 2 Co. Inst. 146. 531; Giles v. Simonds, 81 Mass. (15 T49 McGregor v. Brown, 10 N. Y. Gray) 441, 77 Am. Dec. 373; Bru- (6 Seld.) 114, per Edwards, J. In ley v. Garvin, 105 Wis. 625, 81 N. the same case Denio, J., bases the W. 1038, 48 L. R. A. 839. See 18 decision upon the express provision Am. & Eng. Enc. Law (2d Ed.) 1131. of the statute. The view of Ed- 752 See 1 Barringer & Adams, wards, J., seems to be regarded with Mines & Mining, 67. approval in Moore v. Townshend, 33 7B3, 754 See Delaware Rev. Code N. J. Law, 284, 306. 1893, p. 665, § 1; Kentucky St. 1903, 750 See Tiffany, Real Prop. § 304. § 2328; Missouri Rev. St. 1899, 751 Jenkins v. Lykes, 19 Fla. 148, § 4140; New York Code Civ. Proc. 45 Am. Rep. 19; White v. King, 87 § 1651; South Carolina Civ. Code, Mich. 107, 49 N. W. 518; Cool v. § 2425; Wisconsin Rev. St. 1898, S Peters Box & Lumber Co., 87 Ind. 3171. The New York statute seems 724 PHYSICAL, CONDITIONS. § 109 against tenants in dower or by curtesy, and against guardian in chivalry, but not against lessees for life or years, this distinc- tion being based on the ground that, while the interests of the former were created by act of the law, in the case of the latter the lessor could have provided in the lease against waste.^^^ Ow- ing, however, to the frequent commission of waste by lessees, the Statute of Marlbridge'^^^ was passed, by which it was provided that "fermors, during their terms, shall not make waste, sale, nor exile of houses, woods, and men, nor of anything belonging to the tenements that they have to ferm," and that, if they do so. they shall yield full damage.'^s'^ Subsequently, the Statute of Glou- cester'^ss gave a writ of waste ' ' against him that holdeth by law of England, or otherwise for term of life, or for term of years, or a woman in dower, ' ' and provided that the person guilty of waste should "lose the thing that he has wasted" and pay "thrice so much as the waste shall be taxed at." A tenant at will was never regarded as within the scope of these ' statutes, and if such a tenant commits acts injurious to the inher- itance, which, in the case of other tenants, would constitute waste, he is considered to have committed not waste but a trespass, which terminates the tenancy, and renders him liable to an action for damages as in the case of any wrongdoer.''^* And the local to be ignored in Cohen v. Witte- prehend all such as hold by lease for man, 100 App. Div. 338, 91 N. Y. life or lives or for years, by deed Supp. 493, where it is held that a or without deed." 2 Inst. 145. But landlord, having consented (orally, see Mr. Kirchwey's remarks to the it appears) to the removal of shut- effect that the expression referred ters on the building, could not re- to tenants under a lease for years, cover damages on account of such 8 Columbia Law Rev., at p. 432. removal. 758 6 Edw. 1, c. 5 (A. D. 1278). 755 Co. Litt. 54 a; 2 Co. Inst. 299, 759 Litt. § 71; Co. Lltt. 57 a; 305; Moore v. Townshend, 33 N, Countess of Shrewsbury's Case, 5 J. Law, 284. This is, however. Coke, 13; Chalmers v. Smith, 152 questioned, as regards tenants for Mass. 561, 26 N. E. 95, 11 L. R. A. life, in 2 Pollock & Maitland, Hist. 769; Phillips v. Covert, 7 Johns. Eng. Law, p. 9, and also in a (N. Y.) 1; Parrott v. Barney, Deady, learned article on "Liability for 405, Fed. Cas. No. 10,773 a; Perry v. waste" by George W. Kirchwey, Carr, 44 N. H. 118, 82 Am. Dec. 191. Esq., in 8 Columbia Law Rev. 425. But see Young v. Young, 36 Me. 133. 756 52 Hen. 3, c. 23, § 2 (A. D. The proper form of action against 1267). a tenant at will for waste caused by -57 "Permors (firmarii) do com- direct acts of commission is tres- § 109 TENANT'S OBLIGATIONS TOWARDS LANDLORD. 725 state statutes providing remedies for waste are likewise, by their language, usually limited to tenants for life and for yearsJ'" The action of waste, as it existed at common law, and under these English statutes, was gradually superseded by an action on the case to recover damages for the waste,^*^ and the old action of waste now no longer exists in Bngland.''®^ To ,what extent the Statutes of Malbridge and Gloucester are in force in this coun- try is a matter of considerable uncertainty,'^®* but even where they are not in force, and though there is no local statute on the subject, an action of trespass on the case, or its equivalent code action, would seem to lie for the recovery of damages caused by acts of voluntary waste committed by a tenant for life or yearsJ®* In a considerable number of the states there is an express statu- tory provision for the recovery of damages for waste committed by a tenant for life or years,''*^ and, in two or three states for pass, and not trespass on the case. Supervisors of Harrison County, Salop V. Crompton, Cro. Eliz. 777; 89 Miss. 448, 42 So. 290. That they Goodright v. Vivian, 8 Bast, 190; are in force in part or in whole, see Perry v. Carr, 44 N. H. 118, 82 Am. Dozier v. Gregory, 46 N. C. (1 Jones Dec. 191; Chalmers v. Smith, 152 Law) 100; Sackett v. Sackett, 25 Mass. 561, 26 N. E. 95, 11 L. R. A. Mass. (8 Pick.) 309. See, also, 769. In Files v. Magoon, 41 Me. 104, Alexander's British Statutes in trespass on the case against tenant force in Maryland, pp. 46, 83. at will was sustained. The court 78* See 4 Kent, Comm. 81; Rand- states that there are numerous all v. Cleaveland, 6 Conn. 328; Doz- authoritles supporting this view, hut ier v. Gregory, 46 N. C. (1 Jones fails to cite them. The only case Law) 100; Yocum v. Zahner, 162 cited, that of Lienow v. Ritchie, 25 Pa. 468, 29 Atl. 778; Thackeray v. Mass. (8 Pick.) 235, involved an Bldigan, 21 R. I. 481, 44 Atl. 689: action against a third person by the Moss Point Lumber Co. v. Board of landlord of a tenant for a term of Harrison County Supervisors, 89 one year, a very different matter. Miss. 448, 42 So. 290, 873. 760 See post, note 765. 765 California Code Civ. Proc. § 761 See 2 Wms. Saund. 252, note 732; Connecticut Gen. St. 1902, § (7) to Greene v. Cole. 1100; Delaware Rev. Code 1893, p. 762 See 3 & 4 Wm. 4, c. 27, § 3ff 666, § 9; Idaho Code Civ. Proc. 1901, (A. D. 1833). § 3374; Iowa Code 1897, § 4303; Ken- 763 To the effect that these stat- tucky St. 1903, § 2328; Maine Rev. utes are not in force, see Moore v. St. 1903, c. 97, § 1; Massachusetts Ellsworth, 3 Conn. 483; Smith v. Rev. Laws 1902, c. 185, § 1; Michi- Follansbee, 13 Me. 273; Parker gan Comp. Laws 1897, § 11116; Min- r. Chambliss, 12 Ga. 235; Woodward nesota Rev. Laws 1905, § 4447; Mon- V. Gates, 38 Ga. 205, 95 Am. Dec. 385; tana Rev. Codes 1907, § 6866; Nei- Moss Point Lumber Co. v. Board of rasica Ann. St. 1907, § 1645; Nevada 726 PHYSICAL C0NI>ITIONS. § 100 waste committed by any tenant of land."^^ Presumably a peri- odic tenant would be regarded as within the equity of a statute in terms applying to a tenant for years. The right to recover damages for waste is not affected by the fact that the lease contains an express covenant not to commit waste, or to yield up the premises in good condition at the end of the term. The landlord has the option of suing on the cov- enant, or of bringing an action on the ease, or other action, di- rectly for the waste.''' ^'^ A decision has been made to the effect that there is no right of action for waste if the tenant has the option under the lease to purchase the premises, but that the right accrues, and limi- tations begin to run, only when the option expires.''*^ The reason given for this conclusion is that the tenant could at any time extinguish the right of action by exercising his option. It has, however, elsewhere been decided that it is no defense to an action on the ease for waste that the tenant, after the commission of waste, purchased the reversion,'' ^^ or that the landlord purchased the leasehold interest.'''^* And even if an actual purchase of Comp. Laws 1900, § 3347; TJew York Va. 95; Parrott v. Barney, 2 Abb. Code Civ. Proc, § 1651; North Da- 197, Fed. Cas. No. 10,773. kota Rev. Codes 1905, § 7539; Bell. 768 Powell v. Dayton, S. & G. R. Co., & C. Codes Oregon, § 347; Rhode 16 Or. 33, 16 Pac. 863, 8 Am. St. Rep. Island Gen. Laws 1896, c. 268, § 1; 251. South Dakota Code Civ. Proc. 1903, 769 Dickinson v. City of Baltimore, § 693; Utah Comp. Laws 1907, § 48 Md. 583. 3507; Ball. Ann. Codes & St. 1897, 770 Dupree v. Dupree, 49 N. C. (4 Washington, § 5655; Wisconsin St. Jones Law) 387, 69 Am. Dec. 757. 1898, § 3171. But see Pynchon v. Stearns, 52 Tse Virginia Code 1904, § 2775; Mass. (11 Mete.) 304, 45 Am. Dec. West Virginia Code 1906, § 3389. 207, where tbe fact that the re- in Pennsylvania the statute (Pepper mainderman took a lease from the & Lewis' Dig., Waste, § 28) gives a life tenant for the latter's life was right of action in favor of the land- regarded as a defense to an action lord when premises are let for years by the remainderman for waste com- or at will. mitted before the lease. This, how- 767 Kinlyside v. Thornton, 2 Wm. ever, was an action of waste and not Bl. 1111; City of London v. Hedger, of trespass on the case, and the 18 Ves. Jr. 355; Marker v. Kenrick, dictum of Lord Coke that the rever- 13 C. B. 188; Moore v. Townshend, sion must continue in the same state 33 N. J. Law, 284; Moses v. Old may have been regarded as appli- Dominion Iron & Nail Works Co., 75 cable. See post at note 801. § 109 TENANT'S OBLIGATIONS TOWARDS LANDLORD. 727 the reversion by the tenant would constitute a defense, it is difficult to see why the fact that the tenant has an option to purchase should have this effect. It is said by Coke that "if the lessee doth waste, and after surrendereth to the lessor his estate, and the lessor accept there- of, the lessor shall not have an action of waste, "''^^ and the old authorities are generally to this effect, unless perhaps when the right of action for waste previously committed is expressly re- served by the lessor upon accepting the surrender J ^^ There is an American case to the contrary, howeverJ''^ That after the commission of waste by the tenant the landlord permitted him to retain possession and accepted rent for the full term does not, it has been decided, necessarily involve a waiver of the landlord's right to recover damages for breach of the implied contract to use the premises in a tenant-like manner, it being said^that the question of waiver vel non in such case is a question for the jury J'* There are numerous dicta to the effect that there is an implied contract by the tenant not to commit waste, tlie effect of which would be that the landlord could, at his option, sue in contract for breach thereof, or in tort directly for the waste. Thus it is stated in a standard English treatise that "in the absence of express covenant there is implied in law, for the convenience of remedy, a contract or obligation on the part of the lessee, to use the demised premises in a tenant-like manner, relatively to the nature of the premises; which is nothing more in sub- stance than the obligation concerning waste arising from the mere relation of landlord and tenant. "'^^•'' That such a contract is to be implied is also asserted by other textbook writers.''''^ There 771 Co. Litt. 285 a. however, merely involved the suffl- 772 The authorities are collected ciency of allegations as to a prom- in Vin. Abr., Waste (Ga.) p. 501. ise by the lessee to use the prem- 773 Marshall v. Rugg, 6 Wyo. 270, ises in a tenant-like manner or in 44 Pac. 700, 45 Pac. 486, 33 L. R. A. a certain way, and the promise, so 679. far as appears, may have been ex- 774 Chalmers v. Smith, 152 Mass. press in each case. 561, 26 N. B. 95, 11 L. R. A. 769. 770 in Woodfall, Landl. & Ten. 775 Leake, Uses & Profits of Land, (16th Ed.) p. 186, it is said that p. 25, citing Powley v. Walker, 5 "In the absence of any express cov- Term R. 373; Dietrichsen v. Giubi- enant on the subject, a covenant or lei 14 Mees. & W. 845, which cases, promise is implied on the part of 728 PHYSICAL CONDITIONS. 109 are occasional English eases which tend to support this view,"'''^''''"* but there is apparently no positive decision in that country sup- porting a recovery as for breach of a contract against a tenant committing waste. In tiis country, also, the existence of such an implied contract has been asserted.''''^ In view of the num- the lessee that lie -vrtll use the builJ- B. Div. 613, Lord Bsher, M. R. said Ings in a tenantable and proper that "there is an implied covenant manner;" citing Horsefall v. Ma on the part of the tenant not to ther. Holt, N. P. 7; Leach V. Thomas, commit waste," and apparently re- 7 Car. & P. 327; Harnett v. Mait- land, 16 Mees. & W. 257; Yellowly v. garded the action as on such cov- enant, while the other judges ignore Gower, 11 Bxch. 294. Of these cases any such covenant. In Westropp v. the first two, which were actions of Elligott, 9 App. Cas. 815, 823, there asumpsit on account of the com- is a similar dictum by Lord Black- mission of waste, may, perhaps, be burn, that there is an implied cov- regarded as implying that such an enant not to commit waste. At the action would lie in case of waste, present day, under the English judi- they denying recovery on other ciary acts, the question whether the grounds without any comment on action Is on such an implied con- the form of the action; but the two tract, or for a tort, is immaterial, latter cases cited in no way sup- and there is, in fact, no way of de- port the statement. That there is termining whether it is the one or such a contract is also stated in 1 the other. Addison, Contracts (10th Ed.) 639. Ed.) 3-40. In Pollock, Torts (6th Ed.) 340, It is said that "as between landlord and tenant, the real matter in dis- See Pollock, Torts (6th "9 In United States v. Bostwick, 94 U. S. 53, 24 Law. Ed. 65, it is said, per Waite, C. J., speaking for pute, in a case of alleged waste, is the court, "In every lease there is, commonly the extent of the ten- unless excluded by the operation of ant's obligation, under his express some express covenant or agree- or Implied covenants, to keep the nient, an implied obligation on the property demised in sate condition part of the lessee to so use the prop- er repair. Yet the wrong of waste is none the less committed (and un- der the old procedure was no less remediable by the appropriate ac- erty as not unnecessarily to injure it, or, as It is stated by Mr. Comyn, 'to treat the premises demised in such manner that no injury be done tion on the case) because it is also to the inheritance, but that the es- a breach of the tenant's contract;" tate may revert to the lessor unde- citing 2 Wms. Saund. 646. 777, 778 In Holford V. Dunnett, 7 Mees. & W. 348, the judges clearly as- sume that such a contract may be im- terlorated by the willful or negli- gent conduct of the lessee' (citing Comyn, Landl. & Ten. 188). This Implied obligation is part of the plied, and the same may perhaps be contract itself, as much so as if in- said of Horsefall v. Mather, Holt, N. P. 7; Leach v. Thomas, 7 Car. & P. 327. In Whitham v. Kershaw, 16 Q. corporated Into it by express lan- guage. It results from the relation of landlord and tenant between the § 109 TENANT'S OBLIGATIONS TOWARDS LANDLORD. 729 ber of statements thus made by authorities of the highest re- spectability, it is hardly probable that any court would refuse to support an action on such an implied contract against waste, but since the right to bring an action in tort for waste is well established, it would seem the part of safety to choose the latter remedy. (2) Injunction against waste. A court of equity may inter- pose by injunction to prevent the commission of waste.''*'' Oc- casionally the grant of an injunction against waste upon appli- cation therefor seems to have been regarded as a matter of course,''** while in other cases it has been refused on the ground parties which the contract creates A. 769, it Is clearly asserted that (citing Holford v. Dunnett, 7 Mees. there may be a recovery for waste in & W. 352, supra). It is not a cov- an action of contract, enant to repair generally, hut to so tso O'Brien v. O'Brien, 1 Amb. use the property as to avoid the 107; Douglass v. Wiggins, 1 Johns, necessity for repairs, as far as pos- Ch. (N. Y.) 435; Fortescue v. Fow- sible" (citing Horsefall v. Mather, ler, 55 N. J. Bq. 741, 38 Atl. 445; Holt, N. P. 9; Brown v. Crump, 1 Williamson v. Jones, 43 W. Va. 562, Marsh, C. P. 569). This language 27 S. E. 411, 38 L. R. A. 694, 64 Am. is, in part, quoted by other courts. St. Rep. 891; Dickinson v. Jones, 36 See Warder v. Henry, 117 Mo. 530, Ga. 97; Robertson v. Meadors, 73 545, 23 S. W. 776; Powell v. Day- Ind. 43; Powell v. Cheshire, 70 Ga. ton, S. & G. R. R. Co., 16 Or. 33, 16 357, 48 Am. Rep. 572; Disher v. Pac. 863, 8 Am. St. Rep. 251. Pre- Disher, 45 Neb. 100, 63 N. W. 368; sumably by "implied obligation," as Parker v. Raymond, 14 Mo. 535; the expression is here used, is meant Kidd v. Dennison, 6 Barb. (N. Y.) implied contract, since otherwise the 9; Davenport v. Magoon, 13 Or. 3, word "implied" would be meaning- 4 Pac. 299, 57 Am. Rep. 1. loss. In Pennsylvania and Rhode Isl- In Earle v. Arbogast, 180 Pa. 409, and the common-law writ of estrepe- 36 Atl. 923, it is said that "gen- ment to prevent waste (see 3 erally, in the absence of express Blackst. Comm. 225) is still in covenant on the subject, the law im- vogue, it seems, plies a covenant on the part of the 'si People v. Alberty, 11 Wend, lessee so to treat the demised prem- (N. Y.) 160; Markham v. Howell, ises that they may revert to the 33 Ga. 508; Smith v. City of Rome, lessor unimpaired except by usual 19 Ga. 89, 63 Am. Dec. 298. These wear and tear, and uninjured by were not, however, cases of waste as any willful or negligent act of the between landlord and tenant, but lessee." And in Chalmers v. Smith, of "waste," so called, by a stranger. 152 Mass. 561, 26 N. B. 95, 11 L. R. 730 PHYSICAL CONDITIONS. § 109 that the injury was not irreparable,''^^ or that there was an adequate remedy at law J** Injunction has been granted to restrain the ploughing up of meadow land,''^* the sowing of a pernicious crop,''*^ and the de- struction of timber'^® and fruit treesJ^^ The removal of a building,''*^ and the alteration or removal of parts thereof/^^ has also been so restrained. An injunction to prevent the re- moval of timber already cut has been refused, the parties being relegated to their legal rights after the waste has been actually committed by the cutting of the timber.'^®" An injunction will not ordinarily be granted unless the ap- plicant therefor shows that the tenant in possession has at- tempted to commit waste, or has taken active measures looking towards its commission, or has at least threatened to commit itJ*! And the courts have generally refused to grant an injunc- tion as against "meliorating" or trivial waste J®^ In cases in which an injunction is granted, an accounting by 782 Thompson v. "Williams, 54 N. Jungerman v. Bovee, 19 Cal. 354; C. (1 Jones Eq.) 176; Atkins v. Chil- Davenport v. Magoon, 13 Or. 3, 4 son, 48 Mass. (7 Mete.) 398, 41 Am. Pae. 299, 57 Am. Rep. 1. Dec. 448; Chamberlain v. Child's tsq Baugher v. Crane, 27 Md. 36, 92 Unique Dairy Co., 54 Misc. 56, 105 Am. Dec. 618; Douglass v. Wiggins, N. Y. Supp. 370. But that irrep- 1 Johns, Ch. (N. Y.) 435; Fox v. arable injury need not be shown. Lynch, 71 N. J. Eq. 537, 64 Atl. 439; see George's Creek Coal Co. v. Det- Poertner v. Russell, 33 Wis. 193; mold, 1 Md. Ch. 371; Thruston v. Brock v. Dole, 66 Wis. 142, 28 N. Minke, 32 Md. 487. W. 334; Denechaud v. Trisconi, 25 783 Cutting V. Carter, 4 Hen. & M. La. Ann. 402. (Va.) 424; Atkins v. Chilson, 48 79o Watson v. Hunter, 5 Johns. Mass. (7 Mete.) 398, 41 Am. Dec. Ch. (N. Y.) 169. 448; Brown v. Niles, 165 Mass. 276, '^iBewes, Waste, 340; Jackson v. 43 N. E. 90. Cator, 5 Ves. Jr. 688; Hext v. Gill, 784 Chapel V. Hull, 60 Mich. 167, 7 Ch. App. 699; St. Clair v. Sedwick, 26 N. W. 874; Drury v. Molins, 6 39 Neb. 562, 58 N. W. 185; Crockett "Ves. Jr. 328. v. Crockett, 2 Ohio St. 180. 785 Pratt V. Brett, 2 Madd. 62. 792 Doherty v. Allman, 3 App. Cas. TseKidd v. Dennison, 6 Barb. (N. 709; Grand Canal Co. v. McNamee, Y.) 9; Herring v. Dean of St. Paul's, 23 L. R. Ir. 131; Meux v. Cobley 2 Wils. Ch. 1; Jones v. Gammon, 123 []892J 2 Ch. 253; Brown v. Nilss. Ga. 47, 50 S. E. 982. 165 Mass. 276, 43 N. E. 90; Butts v. 787Silva V. Garcia, 65 Cal. 591, 4 Fox, 107 Mo. App. 3iu, 81 S. W. 493. Pac. 628. And see Hubble v. Cole, 85 Va. 87, 7 788 Smyth V. Carter, 18 Beav. 78; S. E. 242. § 109 TENANT'S OBLIGATro^fS TOWARDS LANDLORD. 731 the tenant as to the proceeds of waste already committed may be ordered, to prevent multiplicity of suitsJ^^ Ordinarily, if there is no right to an injunction, owing to the fact that the tenant committing waste has transferred his interest, or for other rea- son, no accounting will be allowed, and the reversioner must seel^ redress at lawJ^* But an accounting has been ordered, apart from any injunction, as incident to a discovery ,^9b jq t^g case of waste by a deceased person, the proceeds of which have gone to swell the assets of his estate,''''^ and presumably it would be allowed in the case of equitable wasteJ*'' There may be a mandatory injunction to compel the person committing waste to restore the things wasted, when such res- toration is possibleJ98 (3) Persons entitled to sue. The action of waste, as estab- lished under the old English statutes, could be brought only by him who had the reversion or remainder in fee or in tail im- mediately following upon the interest of him who committed the waste, with no estate of freehold intervening.'^^'' Nor could any 793 Jesus College v. Bloom, 3 Atk. Rolt v. Somerville, 2 Eg. Gas. Abr. 262; Winshlp v. Pitts, 3 Paige (N. 759; Klie v. Van Broock, 56 N. J. Eq. Y.) 259; Fleming v. Collins, 2 Del. 18, 37 Atl. 469. In Engle v. Thorn, Ch. 230; Ackerman v. Hartley, 8 N. 10 N. Y. Super. Ct. (3 Duer) 15, it J. Eq. (4 Halst.) 476; Armstrong is decided that the courf will not V. "Wilbon, 60 111. 226; Williamson take jurisdiction of a proceeding to V. Jones, 43 W. Va. 562, 27 S. E. 411; compel the tenant to restore the Disher v. Disher, 45 Neb. 100, 63 premises to their original condition, N. W. 368. when it is not alleged that the alter- • o* Jesus College v. Bloom, 3 Atk. atlons made by the tenant injured 263; Smith v. Cooke, 3 Atk. 378; the property, and such restoration Gent V. Harrison, Johns. 517; Par- would be no benefit to the landlord rott v. Palmer, 3 Mylne & K. 632; and would be a burden on the tenant. Crockett v. Crockett, 2 Ohio St. 180; T99 Co. Litt. 53 a. See note (7) to W^inship v. Pitts, 3 Paige (N. Y.) Greene v. Cole, 2 Wms. Saund. 252a, 259. where it is said: "And therefore if 795 Whitfield V. Bewit, 2 P. Wms. a lease be made to A. for life or 240. years, remainder to B. for life, and 798 Blake v. Peters, 1 De Gex, J. & A. commit waste, the action cannot S. 345; Morris v. Morris, 3 De Gex be brought by him in the remainder & J. 323; Lansdowne v. Lansdowne, or reversion in fee or in tail, so 1 Madd. 116. long as the estate of B. continues 797 See Lansdown v. Lansdown, 1 (citing Co. Litt. 54 b; Udal v. TJdal, Madd. 116. Alevn, 81, 2 Rolle, Abr. 829; Bray 798 Vane v. Barnard, 2 Vern. 738; v. Tracy, Cro. Jac. 688); but if B. 732 PHYSICAL CONDITIONS. § 109 person maintain this action, unless he had an estate of inher- itance at the time when the waste was committed, and therefore it did not lie by an heir for waste done in the time of his ancestor, nor by the grantee of a reversion for waste committed before the grant to him.^"" It is said by Lord CokeS"! ^j^^t "after waste done there is a special regard to be had to the continuance of the reversion in the same state that it was at the time of the waste donej for if after the waste he granteth it over, though he taketh back the whole estate again, yet is the waste dispunishable." This doctrine seems, however, not to be referred to by later writers, and it has been held that, whatever may be the meaning of the statement, it does not prevent the reversioner, who transfers his reversion after the commission of waste by the tenant, from thereafter suing therefor.^o^ An action on the case for waste, as distinguished from an action of waste, may be brought by one having a reversion for life or for years as well as by one having a fee.^"* And there is at least one decision to the effect that it will lie in favor of the reversioner in spite of an intervening estate of freehold.^"* Moreover, the right of the reversioner to bring the action is not affected, it has been decided, by the fact that after the doina; of the w^aste the reversion underwent a change, or that it ceased to exist as such owing to the acquisition of the leasehold by the landlord or of the reversion by the tenant.^^^ should afterwards die or surrender v. Smith, 1 Q. B. 345; Crawford v. his estate, the reversioner or re- Bugg, 12 Ont. 8. malnderman may bring an action soi Co. Lltt. 53 b. for the waste so done by him, for soz Robinson v. Wheeler, 25 N. Y. by the death or surrender the Im- 252. But see the dissenting opinion pediment is removed (citing Pag- In this case, and Pynchon v. Steams, et's Case, 5 Coke, 76 b; Bray v. 52 Mass. (11 Mete.) 304, 45 Am. Dec. Tracy, W. Jones, 51). So If a lease 207, ante, note 770. for life be made, remainder for soa Note (7) to Greene v. Cole, 2 years, the reversioner or remainder- Wms. Saund. 252 b; Dozier v. Greg- man may bring the action, notwlth- ory, 46 N. C. (1 Jones Law) 100. standing the mesne remainder (clt- 804 Short v. Piper, 4 Har. (Del.) Ing Co. Lltt. 54 a; 2 Co. Inst. 301)." 181. 800 Greene v. Cole, 2 "Wms. Saund., sos Dickinson v. City of Baltimore, note, at p. 252 a; 2 Co. Inst. 305; 48 Md. 583, 30 Am. Rep. 492; Dupree Comyn, Landl. & Ten. 489; Bacon v. Dupree, 49 N. C. (4 Jones Law) § 109 TENANT'S OBLIGATIONS TOWARDS LANDLORD. 733 There are, in a number of states, statutory provisions expressly giving a right of action to persons other than those above named. Thus it is sometimes provided that an heir may bring an action for waste done in the time of his ancestor as well as for that done in his own time.^os in some states a right of action is given in terms to one having a reversion for life or years only,807 while, not infrequently, it is declared that the presence of an intervening estate shall not affect the right to sue.*"® A number of statutes give aright of action to the person " injured "*'" or to the person "aggrieved. "810 To sustain an application for an injunction to prevent waste it is not necessary that the applicant be the immediate rever- sioner, but any person substantially interested in the reversion may make the application, though his interest is less than a fee, and though there is an estate intervening between his estate or interest and that of the tenant against whom the injunction is sought.^^i Accordingly a reversioner may obtain 387, 69 Am. Dec. 757. Compare Laws 1897, § 11120; Missouri Rev. Bacon v. Smith, 1 Q. B. 345. St. 1899, § 4141; North Dakota Rev. »oe Delaware Rev. Code 1893, p. Codes 1905, § 4807; South Dakota 665, § 5; Kentucky St. 1903, i 2334; Civ. Code 1903, § 287; Wisconsin St. Maine Hey. St. 1903, c. 97, § 1; Mich- 1898, § 3175. tj^an Comp. Laws 1897, § 11119; Jf is- sos Minnesota Rev. Laws 1905, § souri Rev. St. 1899, § 4142; 3 New 4447; Nevada Comp. Laws 1900, ! Jersey Gen. St. p. 3749, § 6 ; Jfew Yorfc 3347; Bell. & C. St. Oregon, § 347; Code Civ. Proc. § 1652; North Car- Virginia Code 1904, § 2775; Ball. olina Revisal 1905, § 857; Wisconsin Ann. Codes & St. 1897, Washington, St. 1898, c. 3174. § 5655; West Virginia Code 1906, S BM Kentucky St. 1903, § 2329; 3389. Maine Rev. St. 1903, c. 97, § 3; Mas- sio Calif ornia Code Civ. Proc. § sachusetts Rev. Laws 1902, c. 185, 732; Montana Rev. Codes 1907, 5 § 2; Michigan Comp. Laws 1897, 5 6866; North Dakota Rev. Codes 1905, 11121; Missouri Rev. St. 1899, § § 7539; South Dakota Code Civ. 4141; Rhode Island Gen. Laws 1896, Proc. 1903, § 693; Utah Comp. Laws c. 268, § 1 (semble) ; Wisconsin St. 1907, § 3507. 1898, § 3175. 811 perrot v. Perrot, 3 Atk. 94; SOS Calif ornia Civ. Code, § 826; University v. Tucker, 31 W. Va. 621, Idaho Oiv. Code, § 2383; Bums' 8 S. E. 410; Camp v. Bates, 11 Conn. Ann. St. Indiana 1901, § 288; Iowa 51, 27 Am. Dec. 707; Brashear v. Code 1897, § 4303; Kansas Gen. St. Macey, 26 Ky. (3 J. J. Marsh.) 93; 1905, § 4073; Maine Rev. St. 1903, c. Cannon v. Barry, 59 Mias. 289; Den- 97, § 3; Massachusetts Rev. Laws nett v. Dennett, 43 N. H. 499; Mayo 1902, c. 185, § 2; Michigan Comp. v. Feaster, 2 McCord Eq. (S. C.) 137. 734 PHYSICAL CONDITIONS. § 109 an injunction against his tenant's lessee, a subtenant.^^^ Such a proceeding may, it has been held, be instituted by an admin- istrator having power to take possession of real estate, make leases, and collect rents.®^^ At common law a right of action for waste would not survive to the executor or administrator of the person injured,*^* and whether it does survive in any particular state must depend upon the question whether that state has a local statute providing for the survivorship of a right of action for injuries to land.^is For waste done after the death of the reversioner, the heir or devisee is obviously entitled to sue.^i^ (4) Persons liable. An action does not lie, at common law, against the personal representative of the person who committed waste, since it is a tort which dies with the person.^i'^ But the person injured by the waste has a right to follow into the hands of the executor the proceeds of such waste,*'* and occasionally the statute gives a right of action against the personal represen- tative of the wrongdoer.'^i^ (5) Time of suit. An action for damages on account of waste, and a fortiori an application for an injunction against waste, may be brought immediately on the commission of the waste, and the landlord need not wait till the end of the term, to see whether the tenant will restore the premises to their original condition.820 ei2Farrant v. Lovel, 3 Atk. 723. 1605; 2 Co. Inst. 302; Hamblay v. 8t3Halstead v. Coen, 31 Ind. App. Trott, Comp. 376. 302, 67 N. E. 957. sis Williams, Executors, 1606; Wln- 814 1 Williams, Executors {9th Chester v. Knight, 1 P. Wms. 406; Ed.) 700 note (i). Phillips v. Homfray, 24 Ch. Div. 439, 815 See, as to state statutes pro- 455. viding for the survival of actions, 1 8i9 Delaware Rev. Code 1893, p. Woerner, Administration (2d Ed.) 665, § 5; KentucTty St. 1903, § 2355; c. 31. Occasionally the statute ex- Massachusetts Rev. Laws 1902, c. pressly provides that a right of ac- 185, § 3; Missouri Rev. St. 1899, § tion for waste shall survive. See 4148; Nevada Comp. Laws 1900, § Nevada Comp. Laws 1900, § 2953; 2953; Rhode Island Gen. Laws 189G. Rhode Island Gen. Laws 1896, c. 233; c. 233, § 7; West Virginia Code 1906. West Virginia Code 1906, § 3274. § 3274. 816 Bro. Abr., Wa'te, pi. 76; How- 820 Provost & Scholars of Queen's ard V. Patrick, 38 Mich. 795. College v. Hallett, 14 East, 489; 817 Williams, Executors (9th Ed.) Agate v. Lowenbein, 57 N. Y. 604; § 109 TENANT'S OBLIGATIONS TOWARDS LANDLORD. 735 (6) Measure of damages. The measure of damages for waste has been stated to he the amount which would be required to restore the premises to the condition in which they would have been had no waste been committed.'*'^! But in England it has been decided that the proper measure of damages is the dim- inution in the value of the reversion caused by the waste, which may or may not be as great as the cost of restoring the premisSs to their former condition,*22 and there is at least one decision to that effect in this country .^23 The statute of GloucesterS24 provided that the person guilty of waste should pay "thrice so much as the waste shall be taxed at." Similarly, in a number of states, the statute provides that the person committing waste shall be liable in treble damageSj^^" while in some the statute provides that he "may" be made Klie Y. Van Broock, 56 N. J. Bq. 18, condition as when received, a pro- 37 Atl. 469; Moses v. Old Dominion vision prohibiting the removal of Iron & Nail Works Co., 75 Va. 95. dirt from the land was not to be re- But in Corning v. Troy Iron & garded as giving a right of action Nail Factory, 40 N. Y. 191, 100 Am. for such removal until the end of Dec. 469, where a lessee, under a the term, and then only if the dirt lease having thirteen years to run, was not replaced, diverted a watercourse away from 821 Moses v. Old Dominion Iron & the leased premises to other land Nail Works Co., 75 Va. 95; Ander- belonging to him, and made large son v. Miller, 96 Tenn. 35, 33 S. W. expenditures for improvements; 615, 31 L. R. A. 604, 54 Am. St. Rep. which were dependent for their util- 812. Ity upon such diverted stream, it 822 Whitham v. Kershaw, 16 Q. B. was held that the reversioner had Div. 613. See Harder v. Harder, 26 no present right to object, since Barb. (N. Y.) 409. such diversion did not injure the re- 823 Fagan v. Whitcomb (Tex. version, and consequently he was App.) 14 S. W. 1018. not by his silence precluded from s^* 6 Bdw. 1, c. 5 (A. D. 1278). insisting on the restoration of the' s^s Rentuclcy St. 1903, §§ 2328, stream upon the expiration of the 2334; Maine Rev. St. 1903, c. 97, § 1; jga,se. Nebraska Ann. St. 1907, § 1645; 3 In Gulf, C. & S. F. R. Co. v. Set- New Jersey Gen. St. p. 3749, § S-.New tegast, 79 Tex. 256, 15 S. W. 228, it York Code Civ. Proc. § 1655; Bell & was held that, in view of a provision C. St. Oregon § 347; Virginia Code that at the end of the term the land 1904, § 2778 (if waste wanton), should be delivered up in as good 736 PHYSICAL CONDITIONS. §109 liable in such damages.^*^ Occasionally there is a provision for a judgment for double damages.*^? (7) Forfeiture. The statute of Gloucester provided that the tenant should lose the thing that he has wasted,828 and there are in several of the states statutory provisions for the forfeiture of his estate by a tenant committing vsraste,*^' in some cases only when the vraste -was done maliciously or when it equals in amount the value of the residue of the tenant's estate.*3o Such provisions for forfeiture are obviously of less importance as regards waste by a tenant for years, who ordinarily in this country pays a rent equal to the rental value of the property, than ia the case of one holding for life under a devise or settle- ment. The courts are usually, it seems, indisposed to enforce a forfeiture for this, as for any other cause.*** In one state a statutory provision that, where a thing is let for a particular purpose, if the hirer uses it for any other pur- 828 Oalifornia Code Civ. Proc. § 732; Idaho Code Civ. Proc. 1901, § 3374; Minnesota Rev. Laws 1905, § 4447; Montana Rev. Codes 1907, § 6866; Nevada Comp. Laws 1900, § 3347; North Carolina Revision 1905. § 7539; North Dakota Rev. Codes 1905, § 753; South Dakota Code Civ. Proc. § 693; Utah Comp. Laws 1907, § 3507. That, in such a statute, "may" is not equivalent to "must," and that the award of treble damages 13 within the discretion of the court, and should ordinarily be confined to cases of willful or malicious waste, see Isom v. Rex Crude Oil Co., 140 Cal. 678, 74 Pac. 294; Isom V. Book, 142 Cal. 666, 76 Pac. 506. »2T Delaware Rev. Code 1893, p. 666, § 9 ; Michigan Comp. Laws 1897, § 11121; Rhode Island Gen. Laws 1896, c. 268, § 1; Wisconsin St. 1898, § 3176. 828 That the forfeiture extended only to so much of the premises as was wasted, see Co. Litt. 54 a; Jack- son V. Tibbitts, 3 Wend. (N. Y.) 341. S29 Delaware Rev. Code 1893, p. 666, § 9; 3 New Jersey Gen. St., p. 3749, § 3; Kentucky St. 1903, § 2328; Maine Rev. St. 1903, c. 97, § 1; Neb- raska Ann. St. 1903, § 1646 (If in- jury more than two thirds of value of tenant's estate) ; North Carolina Revision 1905, § 853; Rhode Island Gen. Laws 1896, c. 268, § 1; South Carolina Civ. Code, § 2425. 830 Burns' Ann. St. 1901, Indiana, § 287; Iowa Code 1897, § 4303 (damage more than two thirds value of the defendant's estate) ; Nebraska Ann. St. 1903, § 1646 (ditto) ; New York Code Civ. Proc, § 1655; Bell & C. Codes Oregon, § 347; Minnesota Rev. Laws 1905, § 4447; New York Code Civ. Proc. § 1655; South Dakota Code Civ. Proc. § 693; Ball Ann. Codes 1897 Washington, § 5655. 831 See Thacher v. Phinney, 89 Mass. (7 Allen) 146; Jackson v. An- drew, 18 Johns. (N. Y.) 434; "Mil- liard V. Williard, 56 Pa. 119. 109 LANDLORD'S OBLIGATIONS TOWARDS TENANT. 737 pose, the latter may treat the contract as rescinded, has been regarded as applicable when a lease was made for tenement purposes, and the lessee opened oil wells on the land.*** c. Right to the proceeds of waste. Things wrongfully severed by the tenant in the course of commission of waste by him still belong to the landlord,*-^^ and he may presumably bring replevin for their recovery ,83* or he may sue the tenant in trover for their value*3» or, in case the tenant subsequently removes them, he may recover in trespass.*^® A tenant is entitled to the proceeds of such wood as may be rightfully severed by him, whether he makes the severance,*'^' or it is the result of a wind storm or other action of the ele- ments,*38 and the same principle applies to the proceeds of other a<3ts Avhich do not involve waste.*^^ So, in the case of a tenancy without impeachment of waste, the proceeds of trees or minerals severed from the land, either by the elements or by a stranger, belong to the tenant, as if they were severed by him.^*" 832 Isom y. Rex Crude Oil Co., 147 Cal. 659, 82 Pac. 317. 833Bewes, Waste, 193; Bowles' Case, 11 Coke, 79 ; Herlakenden'sCase, 4 Coke, 62 a; Bewick v. Whitfield, 3 P. Wms. 267; Bulkey v. Dolbeare, 7 Conn. 232; Richardson v. York, 14 Me. 216; White v. Cutler, 34 Mass. (17 Pick.) 248, 28 Am. Dec. 296 Johnson v. Johnson, 18 N. H. 594 Lane v. Thompson, 43 N. H. 320 Shult V. Barker, 12 Serg. & R. (Pa.) 272; Williamson v. Jones, 43 W. Va. 562, 27 S. E. 411. If the tenant wrongfully cuts tim- ber, a purchaser of the timber un- der a lien for sawing acquires no title. Hill V. Burgess, 37 S. C. 604, 15 S. E. 963. 634 Warren County Sup'rs v. Gans, 80 Miss. 76, 31 So. 539. And see McNally v. Connolly, 70 Cal. 3, 11 Pac. 320, and cases cited 13 Am. & Eng. Enc. Law (2d Ed.) 680, note 4. 835 Vin. Abr., Trees (A) pi. 7; Farrant v. Thompson, 5 Bam. & Aid. 826; Udal v. Udal, Aleyn, 81; Brooks V. Rogers, 101 Ala. Ill, 13 So. 386; Warren County Sup'rs v. Gans, 80 Miss. 76, 31 So. 539; Schermerhorn V. Buell, 4 Denio (N. Y.) 422. ssovin. Abr., Tress (A) pi. 7; Udal V. Udal, Aleyn, 81; Schermer- horn V. Buell, 4 Denio (N. Y.) 432. 837 Clement v. Wheeler, 25 N. H. 361; Keeler v. Eastman, 11 Vt. 293; Proffitt V. Henderson, 29 Mo. 325; Crockett v. Crockett, 2 Ohio St. 180. 838 Bateman v. Hotchkin, 31 Beav. 486; Herlakenden's Case, 4 Coke 63 a; Bowles' Case, 11 Coke, 79 b. 839 Lewis V. Godson, 15 Out. 252. But a clause in the lease authoriz- ing the tenant to make alterations in a building does not entitle him to the articles severed in making the alterations. Agate v. Lowenbein, 57 N. Y. 604. 840 Bowles' Case, 11 Coke, 79 b; Bewes, Waste, 151; Anonymous, Mos. 237; In re Barrington, 33 Ch. Div. 523. L and Ten. 47. 738 PHYSICAL CONDITIONS. §110 § 110. Injuries by third persons. A tenant has been decided to be liable for waste which is committed by a stranger, on the ground, it is said, that he, the tenant, being in possession, is bound to prevent the waste, and that furthermore he can recover damages against the stranger in an action of trespass-^^^ And so a tenant has been held liable for -waste done by his tenant, though not by his assignee.*** "Whether, in the case of waste by a stranger, the tenant is liable as for voluntary or as for permissive waste does not clearly appear from the authorities.**^'^ The question seems to be of practical importance only as determining whether a tenant at will would be liable for waste by a stranger.*** 8412 Co. Inst. 146, 303; Co. Litt. 54 a; Vin. Abr., Waste (K) ; Atter- sol V. Stevens, 1 Taunt. 183, 198; Wood V. Griffin, 46 N. H. 230, 237, 88 Am. Dec. 199; Powell v. Dayton, S. & G. R. Co., 16 Or. 33, 16 Pac. 863, 8 Am. St. Rep. 251; Austin v. Hud- son River R. Co., 25 N. Y. 334; Cook V. Champlain Transp. Co., 1 Denio (N. Y.) 91; Fay v. Brewer, 20 Mass. (3 Pick.) 203; Regan v. Luthy, 16 Daly, 413, 11 N. Y. Supp. 709; Myers V. Hussenbuth, 32 Misc. 717, 65 N. Y. Supp. 1026; White v. Wagner, 4' Har. & J. (Md.) 373, 7 Am. Dec. 674; Consolidated Coal Co. v. Savitz, 57 111. App. 659; Parrott v. Barney, 2 Abb. 197, Fed. Cas. No. 10,773; Moore v. Townshend, 33 N. J. Law, 284; Dix v. Jaquay, 94 App. Div. 554, 88 N. Y. Supp. 228. A case often referred to, in which this rule was applied, is that of White V. Wagner, 4 Har. & J. (Md.) 373, 7 Am. Dec. 674, where a tenant was held liable for the destruction of the building by a mob. In Pow- ell V. Dayton, S. & G. R. Co., 16 Or. 33, 16 Pac. 863, 8 Am. St. Rep. 251, a railroad company was, on the strength of this rule, held liable for waste committed by its receiver. In Speneer v. McManus, 82 Hun, 318, 31 N. Y. Supp. 185, the rule was apparently ignored. The rule is obviously inapplicable when a so-called "tenant" is not a tenant but merely a licensee. Bak- er V. Hart, 123 N. Y. 470, 25 N. E. 948, 12 L. R. A. 60. 8*2 Y. B. 49 Edw. 3, 26 b; Hicks V. Downing, 1 Ld. Raym. 99; Vin. Abr., Waste (K) 6. 8*3 Lord Coke appears to regard this as permissive waste, he saying (2 Co. Inst. 303) that the tenant is liable for the act of a stranger, "for he in the reversion cannot have any remedy but against the wrongdoer, and recover all in damages against him, and by this means the loss shall light upon the wrongdoer; for voluntary waste and permissive waste is all one to him that hath the inheritance." And Mr. Minor advances a like opinion. 2 Minor's Inst. 543. But that it is voluntary waste, see White v. Wagner, 4 Har. & J. (Md.) 373, 7 Am. Dec. 674; Regan v. Luthy, 16 Daly, 413, 11 N. Y. Supp. 709; Consolidated Coal Co. V. Savitz, 57 111. App. 659. 844 In Coale v. Hannibal & St. J. R. Co., 60 Mo. 227, it is decided that § 110 TENANT'S OBLIGATIONS TOWARDS LANDLORD. 739 As a reason for imposing such liability upon the tenant for the acts of strangers, it is said by Lord Coke that otherwise the landlord would be without redress.**' But even if this were a valid reason in his day, which appears questionable,*** at the present day the landlord no doubt can, in spite of the outstand- ing leasehold estate, bring suit against a stranger injuring the premises to the damage of the reversion.**^ It is furthermore stated that the case is analogous to that of a common carrier, who is liable for reasons of public policy for injuries by third persons to goods in his custody.*** But the application of such an analogy would carry the liability of the tenant further than has ever been done, since, on the same theory, a tenant would be liable for any injuries to the premises if not caused by vis major, although caused neither by his negligence nor by third persons, thus making him, as is a carrier, an insurer of the safety of the property.**^ In the somewhat analogous case of an ordi- nary bailment of chattels, for the mutual benefit of the bailor and bailee, as in the ordinary contract of hiring, no such liabil- ity for- "the acts of third persons is imposed on the custodian of the property, he being bound to use merely ordinary diligence to protect it.*5o This rule making the tenant liable for injuries by third per- sons, regardless of whether he could, by the exercise of reason- able care, have prevented such injuries, may have had its origin in a liberal construction, in favor of the feudal lord, of the pro- visions of the statute of j\Iarlebridge imposing liability on the the tenant could not be held liable sie Attersol v. Stevens, 1 Taunt, for waste by a stranger in the ab- 183, 198; Cook v. Champlain Transp. sence of a showing as to the charac- Co., 1 Denio (N. Y.) 91; Parrott v. ter of the tenancy, since a tenant at Barney, 2 Abb. 197, Fed. Cas. No. will is not liable for permissive 10,773. See argument of Mr. Pink- waste, ney in White v. Wagner, 4 Har. J. 845 2 Co. Inst. 146, 303. (Md.) 373, 7 Am. Dec. 674. 840 See the remarks of Chambre, 84o The modern cases do not hold J., in Attersol v. Stevens, 1 Taunt, a carrier liable for injuries to goods 182, referring to the suggestion by a mob if the carrier has taken made by two judges in Jefferson v. reasonable measures to protect the Jefferson, 3 Lev. 130, that Coke goods. See 5 Am. & Eng. Bnc. Law means merely that there would be (2d Ed.) 236. no redress by action of waste. sso story, Bailments, §§ 403, 406; S4T See post, chapter XXXIII. Lawson, Bailments, § 40. 740 PHYSICAL CONDITIONS. § 110 tenant if he make waste of house or woods, but however this may be, it is evidently not in accord with the principle, ordina- rily applied at the present day, that one is liable for injuries to specific property, not directly caused by him, only when they are the result of his failure to exercise reasonable care.*^*^ That this is so, plainly appears from the conflict which, in case a build- :ng on the premises is burnt by a third person without any neg- ligence or collusion on the part of the tenant, necessarily arises between this rule and the modern rule exempting the tenant from liability for fire not caused by his negligence.*''^ The question of the tenant's liability for such incendiary fire has, singularly enough, but seldom arisen, and has never received any adequate discussion.**^ There seems no more reason for casting the liabil- ity in such case upon the tenant than when the fire reshlts from a hidden defect in a flue or other appliance. There is a decision to the effect that such liability on the part of the tenant for injuries caused by a third person does not exist in case the tenant sought by legal proceedings to pre- vent such injuries,**^ the court regarding the liability as de- pendent on whether the tenant knowingly permitted the wrong- ful acts. Such a limitation of the tenant's liability, however reasonable, is not recognized by the authorities generally. It has been held that the tenant is liable to the landlord for any injuries to the premises caused by the making of an exeava- lion by the owner of adjoining premises, if this resulted from his refusal to join with the landlord in granting to such adjoining owner a license, as provided by statute, to enter on the premises ssoaThat the tenant is liable for assumed that the tenant was not the acts of third persons only In liable in case the fire was startea case of negligence on his part, see by accident or by some unknown Beekman v. Van Dolsen, 63 Hun, person, and this accords with the 487, 18 N. Y. Supp. 376; Rinoldi v. statement made by Coke in 2 Inst. Hudson Guild, 110 N. Y. Supp. 881. at p. 303 that it was adjudged in 851 See post, § 111. 9 Edw. 2 that if thieves burn the 862 In Cook V. Champlain Transp. house of tenant for life without evil Co., 1 Denio (N. Y.) 91, the ten- keeping of lessee for life's fire, the ant was held liable for the act of lessee shall not be punished for it a third person, a steamboat com- in action of waste. See, also, post, pany, in setting fire to the building, note 859. But in Maggort v. Hansbarger, 8 ^^^ Beekman v. Van Dolsen, 6S Leigh (Va.) 532, It appears to be Hun, 487. 18 N. Y. Supp. 376. §111 TENANT'S OBLIGATIONS TOWARDS LANDLORD. 741 in order to shore up the walls, or if the injury resulted from his interference with the shoring up of the walls.*'''* A joint lessee is liable, it seems, according to the weight of authority, for waste done by his colessee.*** A tenant is necessarily liable for waste done by his servant, acting within the scope of his employment, this being in effect the act of the tenant himself.^se § 111. Injury or destruction by fire. It is said by Lord Coke, without any citation of authority, tliat "burning of the house by negligence or mischance is waste "^"^ and by other authorities,*^^ that under the statute of Gloucester, an accidental burning was waste, and that the tenant was re- 8r.4 Mackenzie v. Hatton, 6 Misc. 153, 26 N. Y. Supp. 873. 865 Lord Coke says: "Two joint tenants for years, or for life, one of them doth waste, this is the waste of them both, but treble damages shall be recovered against him that did the waste only." 2 Inst. 302. And to this effect, see Cruise's Dig. tit. 18, ch. 1, § 62, and notes to Greene v. Cole, 2 Wms. Saund. (Ed. 1871) p. 658, by Sir E. V. Williams. But Clemson v. Trammell, 34 111. App. 414, is adverse to the liability of one joint lessee for waste com- mitted by the other. 856 In' Mason v. Stiles, 21 Mo. 374, 64 Am. Dec. 242, the tenant was held liable for the injury to the building from an explosion caused by his clerk. ssTCo. Litt. 53 b. 851 Hargrave's note to Co. Litt. 57 a. The view of Mr. Hargrave is adopted by Chancellor Kent (4 Comm. 82) without, however, any discussion of the question. And see, to the same effect. Dorr v. Harkness, 49 N. J. Law, 571, 10 Atl. 400, 60 Am. Rep. 656. The question of the liability of a lessee for accidental fire seems somewhat similar to that of one in possession of land for the accidental escape of fire to adjoin- ing premises, as to which, before the statute of Anne, the authorities are not clear. In Pollock, Torts (6th Ed.) 482, it is said that "we find it in the fifteenth century stated to be the custom of the realm (which is the same thing as the common law) that every man must safely keep his own fire so that no damage in any wise happen to his neighbor (citing Y. B. 2 Hen. 4, 18, pi. 5). In de- claring on this custom, however, the averment was 'ignem suum tam neg- ligenter custodivit,' and it does not appear whether the allegation ot negligence was traversable or not." Prof John H. Wigmore, in the course of a learned article in 7 Harv. Law Rev. at p. 448, asserts the view that the negligence vel non of the person from whose premises the, fire escaped was immaterial, the allegation that defendant "negli- gently guarded" his fire meaning merely that he ffiiled to guard it. Compare authorities' cited in Loth- rop V. Thayer, 138 Mass. 466, 52 Am. Rep. 286. 742 PHYSICAL CONDITIONS. §111 lie-\'^ed from liability in this regard only by the statutes of 6 Anne, c. 31 and 14 Geo. 3, c. 78, § 86. These statutes, however, purported merely to exempt persons, on whose premises a fire may "accidentally begin," from liability for damage caused tiiereby, and seem directed at cases of fire spreading from one tenement to another. It has been judicially asserted in one case that, even before these statutes, there was no liability on the part of the tenant for injury or destruction by fire, in the absence of negligence.^59 At the present day, either by reason of the English statutes referred to, or otherwise, the tenant is regarded as not liable for injuries to the premises caused by fire acciden- tally started or spreading,®s*> while he is ordinarily liable for in- juries from fire if this is the result of his negligence.*"! There are authorities to the effect that a tenant at will is not 859 Per Blackburne, C. J., in White V. McCann, 1 Ir. C. L. 205, constru- ing the language of Lord Coke as asserting a liability only in case of negligence. In cases by a lessor against a lessee, before the statute, negligence on the part of the ten- ant was charged. See Salop v. Cromp- ton, Cro. Ellz. 777; Hicks v. Down- ing, 1 Ld. Raym. 99; Shrewsbury's Case, 5 Coke, 14. But as to the pos- sible meaning of the allegation of negligence, see the reference in the preceding note to Prof. Wigmore's article in 7 Harv. ^aw Rev. at p. 748. In 8 Columbia Law Rev. at p. 625, Prof. Kirchwey cites several early cases tending to excuse the tenant in the absence of negligence. SCO United States v. Bostwick, 94 U. S. 53, 24 Law. Ed. 65; Sampson v. Grogan, 21 R. I. 174, 181, 42 Atl. 712, 44 L. R. A. 711; Nave v. Berry, 22 Ala. 383; Junction Min. Co. v. Springfield Junction Coal Co., 222 111. 600, 78 N. E. 902; Earle v. Arbo- gast, 180 Pa. 409, 36 AtTglTPWains- cott V. Silvers, 13 Ind. 497; Levey v. Dyess, 51 Miss. 501; Warner v. Hitehins, 5 Barb. (N. Y.) 666; Mag- gort V. Hansbarger, 8 Leigh (Va.) 532; Lothrop v. Thayer, 138 Mass. 466, 52 Am. Rep. 286; Armstrong v. Maybee, 17 Wash. 24, 48 Pae. 737, 61 Am. St. Rep. 898; Wolfe v. Mc- Gulre, 28 Ont. 45. In Anderson v. Miller, 96 Tenn. 35, 33 S. W. 615, 54 Am. Rep. 812, the tenant was held liable because the building would not have been destroyed had he not used it, or rather author- ized its use, for the storage of cot- ton, a highly inflammable material. It is said that the storage of cot- ton was "unauthorized," and that the lessee rented the premises for the storage of vehicles. The case is perhaps an authority to the effect that, apart from any provision in the lease, the use of the premises for storing inflammable materials may constitute negligence. S61 Duer v. Allen, 96 Iowa, 36, 64 N. W. 682; Robinson v. Wheeler, 25 N. Y. 252; Stevens v. Pantllnd, 95 Mich. 145, 54 N. W. 716; Moore v. Parker, 91 N. C. 275. § 112 TENANT'S OBLIGATIONS TOWARDS LANDLORD. 743 liable for injury caused by fire to the demised premises, even though it is the result of his negligence, on the theory that the negligent keeping of a fire is permissive waste, for which such a tenant is never liable.*''^ And in recent years*''' one court refused to apply to such a case the comparatively modern theory of liability for negligence, saying that "if landlords would protect themselves from the mere negligence of their tenants, they should take a written lease, with proper covenants; and a mere tenant at will is not liable to his landlord for the mere neg- ligence of himself or his servants in kindling or guarding fires in staves or chimneys for the purpose of heating the premises; but he is liable for willful burning, and also for such gross neg- ligence as amounts to reckless conduct." A tenant at will has, however, been held liable to his lessor for the negligent burning of the building on the premises leased, when the lessor himself was merely holding under a lease, for the reason that such sub- lessor is answerable over to the original lessor.*"^ And a tenant at will is liable, as any other occupant of the property would be, for injury to adjoining property owned by the landlord, caused by fire resulting from his negligence.'*''' § 112. Accidental injuries. In the absence of provisions in the lease to a contrary effect, a tenant is not liable for injuries caused by act of God, as when buildings or trees are thrown down by the wind,*"" a house is destroyed by lightning,"'''''' or the violence, of the sea breaks down protective walls, and submerges the land,*"* nor is he liable for waste done by public enemies, this being vis major, against which he is without remedy.*"'' He is not ordinarily 802 Shrewsbury's Case, 5 Coke, 14; s»c Co. Litt. 53 a; 2 Co. Inst. 303;' Salop V. Crompton, Cro. Eliz. 777, Vin. Abr., Waste (I) ; Abbot of Sher- 784. See the remarks of Prof. J. B. bourne's Case, Y. B. 12 Hen. 4, 5. Ames in this connection in 2 Harv. so? 2 Co Inst 303- Vin Abr I^^^^^^^- '^- Waste (I)'. snsLothrop v. Thayer, 138 Mass. ,,. ., 808 Vin Abr Waste Til- Keieh- 466, 52 Am. Rep. 286. ^ ' ^°^' ^^^^^ ^'^' • ^"^"^ 804Cudlip V. Rundle, Carth. 202; '^^'^ ^ase, 10 Coke, n9 b; Y. B. 17 Pantam v. Isham, 1 Salk. 19. ^^^- 3, 65. S65 Lothrop V. Thayer, 188 Mass. ^co 2 Co. Inst. 303. 466, 52 Am. Rep. 286. 744 PHYSICAL CONDITIONS. § II3 liable for an aceidont which could not have been foreseen by him, or the occurrence of which was not caused by his negli- gence,*^" such as an explosion, fire and the like.'''' § 113. Obligation to repair— Permissive waste. ■'Permissive waste is waste by reason of omission or not doing, as for want of reparation,* * * for he that suffereth a house to decay which he ought to repair, doth the waste,"*'' 2 and it is said that "waste may be done in houses by suffering the same to be uncovered, whereby the spars or rafters or other timbers of the house are rotten, but if the house be uncovered when the tenant coraeth in, it is no waste in the tenant to suffer the same to fall down."*''^ There are occasional modern decisions in England recognizing a liability upon the part of a tenant for years for permissive- waste, that is, an obligation upon him, apart from express con- contract, to make repairs.*'''* Such decisions are few, however, since a lease for years almost invariably, in that jurisdiction, 870 United States v. Bostwick, 94 to accidental injuries. No authori- U. S. 53, 24 Law. Ed. 65; Barle v. ties are cited, except a few to tlie Arbogast, 180 Pa. 409, 36 Atl. 923 effect that an express covenant to (explosion) ; Machen v. Hooper, 73 return the premises in good condi- Md. 342, 21 Atl. 67; Sheer v. Fisher, tion binds the lessee in spite of ac- 27 111. App. 464; Clemson v. Tram- cidental injuries. The case seem* mell, 34 111. App. 414; John Morris to stand alone among modern au- Co. V. Southworth, 154 111. 118, 39 thorities, apart from the cases im- N. E. 1099 (explosion) ; Parrott v. posing liability on a tenant for the Barney, 1 Sawy. 423, 2 Abb. 197, Fed. acts of third persons. Cas. No. 10,773; Levey v. Dyess, 51 s7i As to flre, see ante, § 111. Miss. 501; Armstrong v. Maybee, 17 8722 Co. Inst. 145. Wash. 24, 48 Pac. 737, 61 Am. St. S73 Co. Litt. 53 a. Rep. 898; Saner v. Bilton, 7 Ch. Dlv. 87* Harnett v. Maitland, 16 Mees. 815. It is so expressly provided by & W. 257; Yellowly v. Gower, 11 North Carolina Revision 1905, § Exch. 274; Davies v. Davies, 38 Ch. 1991. Div. 499. See, also, the exhaustive Myers v. Hussenbuth, 32 Misc. 717, opinion of Meredith, C. J., in the 65 N. v. Supp. 1026, is contra, recent ca»«Colhoun v. Wilson, 27 Grat. 004 See post, at note 1052. (Va.) 639; Dennison v. Read, 33 Ky. o»5 Martinez v. Thompson, 80 Tex. (3 Dana) 586. See post at note 1021. 568, 16 S. W. 334. § 116 TENANT'S OBLIGATIONS TOWARDS LANDLORD. 753 or within a reasonable time."'" Even under a covenant to repaiB •'forthwith" the tenant has a reasonable time for the purpose.''^i The lessee may show, as excusing delay, that this Avas owing to the neglect of a municipal department to approve the plans, as was required by law."'- A transferee of the reversion cannot sue on account of a breach of a covenant to put in repair, committed before the transfer,^* ^ nor, it seems, is an assignee of the lessee liable under the covenant if it was broken before the assignment to him, it not being in its nature a continuing covenant.®'* For breach of a covenant to make specific repairs the landlord may, it has been decided, recover the decrease in rental value by reason of the lack of such repairs,9is or, if he himself makes the repairs, the reasonable cost of the repairs,"' " and the rental . value of the premises for such time as he may, by reason of his having to make the repairs, be deprived of the use of the prem- ises.®'' § 116. Contract to keep in repair. a. Degree and mode of repair. In England an instrument of lease almost invariably contains a covenant by the lessee to make repairs on the premises, and the reports of that country frequently contain cases bearing upon such covenants. In this country such a covenant by the lessee is less usual, but is quite occasionally found. 910 In Packer v. Cockayne, 3 G. See Gerzebecfe v. I^ord, 33 N. J. Law., Greene (Iowa) 111, where a lease 240. for six years provided that no rent i>i* See Coward v. Gregory, L. R. Jf should be paid the first year and C. P. 153; Jacob v. Down [1900] 2: that after that the tenant should Ch. 156. pay one-third the produce as rent, 9i5 Saffer v. Levy, 88 N. Y. Supp. and it was further stipulated that 144. the tenant should fence the land, it 9i8 Seymour -v. Picus, 9 Misc. 48, 29 was held that it was Intended that N. Y. Supp. 277; Loughlin v. Carey, he should build the fence the first 21 Pa. Super. Ct. 477. But the land- year, lord can recover only the reasonable 9" Doe d. Pittman v. Sutton, 9 cost of the repairs made by him. Car. & P. 706. Harris v. Brown, 24 Misc. 756, 53 N. 912 Davies v. Clark, 159 N. Y. 392, Y. Supp. 938. 54 N. E. 70. 9" Loughlin v. Carey, 21 Pa. 913 Johnson v. Overseers of St. Super. Ct. 477. Peter's Church, 4 Adol. & E. 520. L. and Ten. 48. 754 PHYSICAL CONDITIONS. § 116 A general covenant to repair, it is said, is satisfied by keeping the premises in substantial repair, a literal compliance with the covenant not being required.^i^ Such a covenant, it is generally agreed, binds the lessee to keep the premises merely in the state of repair in which they were at the time of the demise, that is, when the covenant was made.^^^ If it is intended to bind the tenant not only to keep the premises in such repair as they are already in, but to put them in better repair, there must be a covenant to that effect. But an agreement to keep in "good" or "tenant- able" repair has been construed as requiring the tenant to put the premises in that condition of repair, since otherwise he could not keep them in that condition.'^o A covenant to keep in good or in tenantable repair, as well as a covenant simply to keep in repair, is to be construed with refer- ence to the general condition of repair of the premises at the time of the demise, and also with reference to their age and class. That 018 Evelyn v. Raddish, 7 Taunt, Green v. Eden, 2 Thomp. & C. (N. 411; Harris v. Jones, 1 Moody & R. Y.) 582; Appleton v. Marx, 117 App. 173; Stanley v. Towgood, 3 Bing. N. Div. 206, 102 N. Y. Supp. 2; Wad- C. 4. dell V. De Jet, 76 Miss. 104, 23 So. 910 Walker v. Hatton, 10 Mees. & 437 (semble). In Easton v. Pratt, W. 258; Gutteridge v. Munyard, 7 2 Hurl. & C. 676, it is said that in Car. & P. 129 ; Middlekauffi v. Smith, Payne v. Haine, supra, it was de- 1 Md. 329; Stultz v. Locke, 47 Md. cided that a covenant to "keep in 562; St. Joseph & St. L. R. Co. v. St. repair" binds the tenant to "put in Louis, I. M. & S. R. Co., 135 Mo. repair" hut the decision in the 173, 36 S. W. 602, 33 L. R. A. 607; earlier case was merely that a cov- White V. Albany R. Co., 17 Hun (N. enant to "keep in good repair" had Y.) 98; Brashear V. Chandler, 22 Ky. that efeect. A similar misreading (6 T. B. Mon.) 150, 17 Am. Dec. 132. of the earlier case appears to occur But Lehmaier v. Jones, 100 App. in Myers v. Burns, 35 N. Y. 271;' Div. 495, 91 N. Y. Supp. 687, is ta Keroes v. Richards, 28 App. D. C. the effect that a covenant to keep in 310. repair requires the tenant to "put" In Proudfoot v. Hart, 25 Q. B. Div. the premises in repair. This case, 42, it is decided that an agreement like the opinion in Myers in Burns, to keep the premises in tenantable 35 N. Y. 271, and that in Keroes v. repair and to leave them in that con- Richards, 28 App. D. C. 310, ignores dition requires the tenant to put any distinction in this regard be- them in that condition If not in tween a covenant to keep "in repair" such repair at the time of the de- and one to keep "in good repair." mise, and there is a dictum that 920 Payne v. Haine, 16 Mees. & W. such is the effect of a covenant to 541; Saner v. Bilton, 7 Ch. Div. 815; keep and leave in repair. § 116 TENANT'S OBLIGATIONS TOWARDS LANDLORD. 755 is, if the premises are old the tenant is not bound under his covenant to make them new, but merely to repair them as old premises.^2^ It has been said: "The age of the house must be taken into account, because nobody could reasonably expect that a house two hundred years old should be put in the same con- dition of repair as a house lately built ; the character of the house must be taken into account, because the same class of repairs as would be necessary to a palace would be wholly unnecessary to a cottage; and the locality of the house must be taken into ac- count, because the state of repair necessary for a house in Gros- venor Square would be wholly different from the state of repair necessary for a house in Spitalfields. ' '^^a A covenant to repair does not require the tenant to make im- provements, as distinguished from repairs,''^^ and accordingly he is, in making repairs, under no obligation to use a class of ma- terials different from that previously used,"^'' or to change the original method of construction.^^^ A covenant to "make, up- hold, support, cleanse and repair and keep in repair" all drains has been held not to require the making of a new draiUi'^^ and a covenant to keep a drain in good tenantable repair has > been held not to require the rectification of a defect in the plan of construction.^27 ^xit, on the other hand, a lessee has been re- garded as bound, by his covenant to keep the premises in repair, to reconstruct a drain in accordance with a demand of the munici- pal authorities.''^* 921 Stanley v. Towgood, 3 Bing. Hazlewood v. Pennybacker (Tex. N. C. 4; Harris v. Jones, 1 Moody Civ. App.) 50 S. W. 199. & R. 173 ; Soward v. Leggett, 7 Car. 02* Ardesco Oil Co. v. Richardson, & P. 613; Lehmaier v. Jones, lOO 63 Pa. 162, where it was held that App. Div. 495, 91 N. Y. Supp. 687. the tenant covenanting to repair 922 Proudfoot v. Hart, 25 Q. B. was not bound to replace with iron Div. 42, per Lord Esher, M. R. To parts of a structure made of wood, the same effect, see Payne v. Haine, though this would be more effective 16 Mees. & W. 541. and durable. 923 Soward v. Leggett, 7 Car. & P. »2!-. Soward v. Leggett, 7 Car. & P. 613; Naye v. Noezel, 50 N. J. Law, 613. 525; Epstein V. Saviano, 51 Misc. 28, 920 Lyon v. Greenhow, 8 Times 99 N. Y. Supp. 910. I-aw R. 457. A provision that the lessee shall o2t Huggall v. McKean, Cab. & B. "keep the place in good repair and 391. under good fence" has been held not 92s Keroes v. Richards, 28 App. D. to require him to erect fences C. 310. around land not before fenced. 756 PHYSICAL CONDITIONS. |1]6 It has been decided that if, owing to its particular mode of construction, a building is liable, in the course of time, to fall into a particular condition of disrepair, and it does so, the tenant is not, by his covenant to repair, bound to restore it to its former condition, since this would involve the return by him of some- thing different from that which he received.""® The tenant may, for the purpose of relieving himself from liability under his covenant, show the state of repair of the premises at the time of the demise,®3o though only generally, it is said, and not in detail,^^! and only in so far as it goes to show the age, character, and class of the premises, and the extent to which he has per- fornled his contract."'''- A covenant to keep in repair may, it has been held, be limited by the context, as when it was followed by a clause, separated from it only by a semicolon, to the effect that the tenant should re- place all glass broken and repair damage from bursting pipes, the tenant being regarded as bound in such case only to make ordinary repairs of the general character specified, and not to rebuild in case of destruction of the building.®^'' A covenant to keep or leave the premises in "tenantable" re- pair has been held to refer to such repair as would make the premises, having regard to their age, character and locality, rea- sonably fit for their occupation by a reasonably minded tenant of the class who would be likely to take them.^^* Under such a 929 Lister v. Lane [1893] 2 Q. B. the repairs were rendered necessary 212, in which case the building was by the defective construction of the erected on a timber platform rest- building. ing on a muddy soil, and the timber oso Burdett v. Withers, 7 Adol. & having rotted the building had to E. 136. be pulled down, and it was held that 931 Mantz v. Goring, 4 Bing. N. C. the tenant was under no obligation 451. to place "under pinning" to save 932 Haldane v. Newcomb, 12 Wkly. the building. The same principle is Rep. 135 applied in Wright v. Lawson [1903] 933 Richmond Ice Co. v. Crystal Wkly. Notes 108, 19 Times Law R. Ice Co., 99 Va. 239, 37 S. B. 851. 203, 510. But in Lockrow v. Horgan, To the same effect is Ducker v. Del 58 N. Y. 635, it is decided that the Genovese, 93 App. Div. 575, 87 N. lessee is not relieved from his obli- Y. Supp. 889. gation, under his covenant to re- "^' Proudfoot v. Hart, 25 Q. B. Div. pair and keep the premises in ten- 42. antable condition, by the fact that § 116 TENANT'S OBLIGATIONS TOWARDS LANDLORD. 757 covenant the tenant is not bound to paint any part of the prem- ises unless this is necessary either to make them tenantable within the foregoing definition, or to preserve such part of the structure from decay ,935 and he is under no obligation, unless it is neces- sary in order to make them so tenantable, to replace any portion of the structure."** A covenant by the lessee to "substantially repair, uphold and maintain" a house has been held to require the tenant to paint inside woodwork so far as necessary to prevent decay.'*^ But a covenant expressly to repair, repaint, and cleanse the premises does not require repainting, when it is practicable to cleanse the old paint.®** An undertaking to repaint the premises at certain named intervals imposes no liability on the tenant as to the condition of the premises within such intervals.**® A covenant by the lessee of a farm to keep the premises in a.s good repair as at the time of the lease is obviously not satisfied by the keeping of the premises in such repair as ordinarily pru- dent farmers would keep them in, if this is not equal to the condi- tion in which they were at the time of the lease.®*" And it is im- material, as regards the lessee's obligation under a covenant to keep the premises in repair, that the lessor himself never kept them in repair.®*^ It has been decided that the fact that the repairs are rendered necessary by faults in the original construc- tion of the building does not relieve the tenant from the obliga- tion to repair.®*^ If the lessee agrees to make repairs, he is, it ha.s been held, bound to make all such repairs as the municipal building de- partment shall require to be made for the safety of the build- jng 943 Whether, in ease the municipal authorities require that a different and more expensive material be used than was orig- »'5 Crawford v. Newton, 36 Wkly. mo Vincent v. Crane, 134 Mich. Rep. 54. 700, 97 N. W. 34. sseproudfoot v. Hart, 25 Q. B. »" Hewitt v. Hombuckle, 97 111. Div. 42. App. 97. 9S7Monk V. Noyes, 1 Car. & P. 9*2 Lockrow v. Horgan, 58 N. Y. 265. 635. 938 Scales V. Lawrence, 2 Fost & F. "■'s Markham v. David Stevenson 289; Moxon v. Townshend, 2 Times Brew. Co., 104 App. Dlv. 420, 93 N. Law R. 717, 3 Times Law R. 392. Y. Supp. 684. See post, at notes 939 Perry v. Chotzner, 9 Times 1016-1020. Law R. 488. 758 PHYSICAL CONDITIONS. § 116 inally used, the extra expense thus involved shall he imposed on the lessee by reason of his covenant, has been regarded as ques- tionable."" b. Particular causes of injury. In the absence of an express exception of liability in that regard, it is entirely immaterial that the defects in the premises calling for repair were not the result of the tenant's own act or neglect.«'*=^ And the fact that the injury results from defects existing in the thing demised at the time of the demise does not, it seems, relieve the tenant."*^^ Occasionally the lease exempts the lessee from the obligation to repair defects arising from certain enumerated causes. It has been decided, in this connection, that an exception in favor of the lessee, of damage "by the elements or act of Providence" does not cover damage to which human agency in any way contrib- utes,"^^" while destruction by fire, not resulting from the lessee's fault, is within an exception of "damage by the elements. ""*^- oii Keroes v. Richards, 28 App. D. building, and also for any act or C. 310, ante, note 313. thing done or occurring outside s>45Cohn V. Hill, 9 Misc. 326, 30 N. thereof by the said (lessees), their Y. Supp. 209; Ashby v. Ashby, 59 N. servants, employes or tenants" it J. Eq. 547, 46 Atl. 522; Lockrow v. was held that the words "by the Horgan, 58 N. Y. 635; Lovett v. U. said," etc., applied to things done S., 9 Ct. CI. 479. See cases cited within the building as well as to post, § 116 d. things done outside the building. So the tenant is, hy his agree^ a construction in harmony with an ment, bound to prevent the caving exception, in a covenant, occurring in of the premises by reason of ex- in the instrument, to yield up in cavations on adjoining premises, good condition, which exception was Ramsay v. Willde, 36 N. Y. St. Rep. broad enough to cover the fall of 864, 13 N. Y. Supp. 554. the building from pre-existing de- 945a See Manchester Bonded Ware- fects, and that consequently the house Co. V. Carr, 5 C. P. Div. 507; tenant was not bound to restore the Simkins v. Cordele Compress Co., building in case of such fall. 113 Ga. 1050, 39 S. E. 407; Lockrow Machen v. Hooper, 73 Md. 342, 21 V. Horgan, 58. N. Y. 635. The case Atl. 67. of a peculiar rather than a defective "'^b Polack v. Pioche, 35 Cal. 416, mode of construction, conducing to 95 Am. Dec. 115, where the excep- the fall of the building, is to be dis- tion was held not to cover injuries tlnguished. See ante, note 929. caused by a flood from a reservoir, Where the lease provided that the the embankment of which was lessees should be liable for all dam- broken by a stranger. Compare age which should occur to the build*- post, at notes 1046-1048. ing "by or by reason of any act or »45cVan Wormer v. Crane, 51 thing done or occurring within said Mich. 363, 16 N. W. 686, 47 Am. Rep. § 116 TENANT'S OBLIGATIONS TOWARDS LANDLORD. 759 An exception of injuries caused by "inevitable casualty" has in one case been held to include an injury caused by a fire occurring without the lessee's fault,^*""'^ while elsewhere such an exception has been decided not to apply if in any way the injuries could have been prevented.®*^^ Where the expression "other inevitable accident" is used in connection with other named causes of injury, as in the case of an exception of "fire, storm or tempest, or other inevitable accident," it has been held to refer to some cause of injury of the same nature as those speeified.^*^* An exemption of the tenant from liability for "wear and tear" relieves him, it has been said, from liability for any injuries caused by the operation of natural causes, or by friction incident to the ordinary use of the premises j'''^" and it has been held in one state to include the fall of a building through its own de- fects,8*sh though in England a different view has been taken, it being there said not to cover a "total destruction by a catas- trophe never contemplated by either party," even though this results from ordinary use.^^si j^ ^qq^ not include destruction, total or partial, by fire.*''^^ In case there is a covenant to deliver up in a certain condition, an exception therein as to injuries caused by particular agencies named has occasionally, on a construction of the whole context, been held to apply likewise to the covenant to repair, found in conjunction therewith.^^^i; 582; Allen v. Culver, 3 Denlo (N. elude any usual deterioration from Y.) 284. the use of the premises in the lapse 045a Hodgson V. Dexter, 1 Cranch, of time." C. C. 109, Fed. Gas. No. 6,565. 94Dh Hess v. Newcomer, 7 Md. 325; 945e Peck V. ScovIUe Mfg. Co., 43 Machen v. Hooper, 73 Md. 342, 21 111. App. 360, where it was held that Atl. 67. the breaking of a window by a stone »*5i Manchester Bonded Ware- accidentally kicked up by a passing house Co. v. Carr, 5 C. P. Div. 507 team was not an "inevitable acci- (breaking down of warehouse from dent." ordinary and proper use). M5f Manchester Bonded Ware- ^^^^i Armstrong v. Maybee, 17 house Co. V. Carr, 5 C. P. Div. 507. Wash. 24, 48 Pac. 737, 61 Am. St. See Saner v. Bilton, 7 Ch. Div. 815. Rep. 898; Mcintosh v. Lown, 49 945g Manchester Bonded Ware- Barb. (N. Y.) 550. Compare post, house Co. v. Carr, 5 C. P. Div. 507. at notes 1044, 1045. See Waddell v. De Jet, 76 Miss. 104 9«k Ball v. Wyeth, 90 Mass. (8 23 So. 437, where It is said that Allen) 275; Allen v. Fisher, 66 N. "ordinary wear and tear would in- J- Law, 261, 49 Atl. 477. Contra, 760 PHYSICAL CONDITIONS. § 116 A covenant to repair is, it has been held, broken by misfeasance on the part of the tenant as well as by nonfeasance. That is, there is a breach of the covenant if he makes unauthorized alter- ations in the premises.®*'^' The tenant is not, by his agreement to repair, bound to remove the effects of ordinary wear and tear on the building, caused by the elements during his tenancy, that is, he is not bound to return, at the end of his tenancy, premises in effect no older than they were at the beginning of the tenancy.'*'^" But under a cove- nant to "preserve the property from deterioration" he must, it, has been said, do something to offset the natural wear and dam- age done by the elements.®*^" In New York it has been held that a covenant by the lessee to make all inside and outside repairs imposes on him an obliga- tion to make "ordinary" repairs only, and not to reconstruct a part of a building destroyed by accident,^''^P or which is in such condition as to be condemned by the municipal authorities.®'''"' c. Parts of premises to be repaired. An agreement by the tenant to repair or keep in repair the premises extends prima facie to everything included in the demise, though not speeiiically named therein.^*^ Such an agreement has been construed as applying to buildings erected on the premises during the term, Kling V. Dress, 28 N. Y. Super. Ct. o^sn Scott v. Haverstraw Clay & (5 Rob.) 521. Brick Co., 135 N. Y. 141, 31 N. B. MSI Doe d. Vickery v. Jackson, 2 1102; Barnhart v. Boyee, 102 111. Starkie, 2d3; Gange v. Lockwood, 2 App. 172. Fost. & F. 115. So the taking down oisp May v. Gillls, 169 N. Y. 330, of a wall was regarded as a breacli 62 N. E. 385. See post, § 116 d. of a covenant to uphold the wall. 943q Street v. Central Brew. Co., Doe d. Wetherell v. Bird, '6 Car. & 101 App. Div. 3, 91 N. Y. Supp. 547. P. 195, and, apparently, the removal »46 Pyot v. St. John, Cro. Jac. 329; of parts of a fence was regarded as Openshaw v. Evans, 50 Law T. (N. a breach of a covenant to keep the S.) 156. fences in repair. Prettyman v. A covenant to repair the premises Hartly, 77 111. 265. applies to an elevator included in 945m Gutteridge v. Munyard, 1 the demise (J. Gray Estey & Co. v. Moody & R. 334; Lister v. Lane Corn, 46 Misc. 270, 91 N. Y. Supp. [1893] 2 Q. B. 212; Roberts v. Free- 745),- but not to an elevator which, born, 14 Daly (N. Y.) 529; Harris as remaining in the landlord's con- V. Goslin, 3 Har. (Del.) 338. But trol, cannot be regarded as a part see Davies v. Davies, 38 Ch. Div. of the premises leased. Wagner t. 499. Welling, 84 N. Y. Supp. 979. I 116 TENANT'S OBLIGATIONS TOWARDS LANDLORD. 761 even without any specific reference thereto.®*"* A covenant to repair "the demised buildings," however, has been held not to include buildings subsequently erected,®*^ unless, it seems, they are attached to and made part of the old buildings.®**' A covenant to repair may of course be so phrased as to apply only to build- ings thereafter to be erected.®*® The whole question of what is within the operation of the covenant is obviously a matter of the construction of the particular language used.®^'' d. Obligation to rebuild on destruction. An express con- tract by the tenant to repair or keep in repair binds him to re- pair, although the injuries were accidental, and in no way caused by his negligence.®^' "The express covenant to repair binds the •ovenaotor to make good any injury which human power can remedy, even if caused by storm, flood, fire, inevitable accident or the act of a stranger. "®^i'' This principle finds a frequent s application in case of the destruction by fire of buildings or other structures on the premises, in which case the tenant is regarded as bound, by his contract to repair or to keep in repair, to rebuild the structure destroyed.®^^ ^^^ go the tenant must, under such an agreement, rebuild in case of destruction by other 9-i6a Douse V. Earle, 3 Lev. 264, 2 052 Bullock v. Dommitt, 6 Term R. Vent. 126; Brown v. Blunden, Skin. 650; Nave v. Berry, 22 Ala. 382; 121. This is obviously the case if Warner v. Hitchins, 5 Barb. (N. Y.) such new buildings are specifically gg^. gjy ^ gjy_ gQ jj, 533 . Reno v. referred to. Hudson v. Williams, 39 Mendenhall, 58 111. App. 87; David Law T. (N S ) 632. ^ r 47 ^^^ 642,. Allen v. Cul- 0*7 Doe d. Worcester Trustees v. Rowlands, 9 Car. & P. 740, per Cole- ^^r, 3 Denio (N. Y.) 294; Fowler v. yi3gg_ J Payne, 49 Miss. 32, 76; Mcintosh v. 948 Cornish v. Cleife, 3 Hurl. & C. Lown, 49 Barb. (N. Y.) 550; Hoy v. 446, per Bramwell B. Holt, 91 Pa. 88, 36 Am. Rep. 659; »49Lant V. Norris, 1 Burrow, 287. Gettysburg Elec. R. Co. v. Electric 950 See Cornish v. Cleife, 3 Hurl. Light, Heat & Power Co., 200 Pa. 372. tt C. 446. 49 Atl. 952; Phillips v. Stevens, 16 951 See ante, § 116 b. Mass. 238; Cline v. Black, 4 McCord 95iaper Gray, J., in Leavitt v. Law (S. C.) 431; Armstrong v. May- Fletcher, 92 Mass. (10 Allen) 119, bee, 17 Wash. 24, 48 Pac. 737, 61 quoted in David v. Ryan, 47 Iowa, Am. St. Rep. 898; Moses v. Old Do- 642. To the same effect are Polack minion Iron & Nail Works Co., 75 Va. T. Pioche, 35 Cal. 416, 95 Am. Dec. 95; Dermott v. Jones, 62 TJ. S. (2 115; Moses v. Old Dominion Iron & Wall.) 1. Nail Works Co., 75 Va. 95. 762 PHYSICAL CONDITIONS. §116 causes, as by lightning,os'^ or by a flood or tornado.''^* There are dicta, and perhaps one decision, to the effect that the tenant is not bound to rebuild in case of such destruction by the act of God or of destruction by the public enemy .^^s Such a view can be supported only on the theory that the covenant to repair, in view of the circumstances under which it was made, is not, in the particular case, to be construed as extending to injuries so caused,s^8 and the authorities show that such a limited con- 953 Polack V. Pioche, 35 Cal. 416, 95 Am. Dec. 115; Bohannons v. Lew- is, 19 Ky. (3 T. B. Mon.) 380. 054 Brecknock & Abergavenny Ca- nal Nav. Co. V. Pritchard, 6 Term R. 750; Polack v. Pioche, 35 Cal. 416, 95 Am. Dec. 115; Leavitt v. Fletcher, 92 Mass. (10 Allen) 119; Proctor v. Keith, 51 Ky. (12 B. Mon.) 254; Moses V. Old Dominion Iron & Nail Works Co., 75 Va. 95; Spafford v. Meagley, 1 Ohio Dec. 364. In Waite V. O'Neil, 22 C. C. A. 248, 76 Fed. 408, 34 L. R. A. 550, where the owner of land abutting on a river had "leased" the right to use the river front for loading and unloading boats, with the right to a roadway for purposes of access, it was held that the lessee did not, by covenant- ing to deliver up the premises in good order and condition and to keep the road in good repair, bind himself to prevent the washing away of the land by an extraordinary change in the current owing to the giving away of certain protective works further up the river, this conclusion being based not only on the intrinsic nature of the case, but also on th6 fact that the lease stipulated that the lessee should not make repairs with- out the written consent of the lessor, and that the lessor had expressly re- served the right to make such re- pairs as should be necessary "to the security or preservation of the prem- ises." 955 See dicta in Hoy v. Holt, 81 Pa. 88, 36 Am. Rep. 659; Halbut v. For- rest City, 34 Ark. 246; Singleton v. Carroll, 29 Ky. (6 J. J. Marsh.) 528, 22 Am. Dec. 95. In Pollard v. Shaafter, 1 Dall. (Pa.) 210, where the building on the premises had been destroyed by alien enemies, it was held that the covenant to repair was to be con- strued as not extending to an injury so caused or to one caused by act of God. 9dg "The question in all these cases is how far the parties intended the covenant to extend; and where it has been incautiously said that the law will excuse nonperformance, when by the act of God performance has become impossible, the real de- fense has been that the parties did not by their contract intend to pro- vide against such losses, and hence the agreement was not broken. Courts may be less inclined to hold that providential loses were within the intent of the parties than those arising from other causes; but, when the intent is ascertained, the prin- ciple of law applicable in either case is the same." Sill, J., in Warner v. Hitchins, 5 Barb. (N. Y.) 666. See, also. Pollard V. Schaaffer, 1 Dall. (Pa.) 210 (ante, note 955), where the de- § 116 TEHSTANT'S OBLIGATIONS TOWARDS LANDLORD. 763 struction is not ordinarily placed upon the covcnant.^*'^ The tenant is liable, under the covenant to repair, in case the premises are injured or destroyed by third persons,^** or even if the prem- ises fall on account of defects existing therein at the time of the lease.^58 In one state the view has been taken that the word "repair," meaning not to make a new thing, but to refit or make good an existing thing, does not require the tenant to rebuild upon the destruction of the building on the premises."*"" However rea- sonable this view may be when there is a total destruction of a building on the premises, it does not seem applicable when a part only of a building is destroyed, since the reconstruction of that part involves the repair of the building considered as a whole. A distinction might perhaps be suggested, in this connection, between a covenant to keep the premises in repair, and one to keep a building thereon in repair, on the theory that the repair of the premises involves the erection of a building in place of one destroyed, while the repair of a building on the premises at the time of the lease does not involve the erection of a new one upon its destruction. cision is based on a construction of he cannot avoid his obligation by the covenant. reason of the destruction of the 957 See eases cited ante, note 952, building, even without fault on his and also, to the same effect, Para- part. It is the contract, and he dine v. Jane, Aleyn, 27; Walton v. must perform it." Per Scott, X, in Waterhouse, 2 Wms. Saund. 422 a, Steele v. Buck, 61 111. 343, 14 Am. note 2; Superintendent of Schools Rep. 60. of City of Trenton v. Bennett, 27 N. ass Polack v. Pioche, 35 Cal. 416, J. Law (3 Dutch) 513, 72 Am. Dec. 95 Am. Dec. 115; Leavitt v. Fletcher, 373; Sheppard's Touchstone, p. 173. 92 Mass. (10 Allen) 119; Beach v. "Where a tenant has covenanted Grain, 2 N. Y. (2 Comst.) 87, 49 Am. to repair, and the buildings are de- Dec. 369. stroyed by fire, or lightning, or the sso Manchester Bonded Warehouse act of God, as it is termed, the ten- Co. v. Carr, 5 C. P. Div. 507. and must rebuild upon the demised ooo Wattles v. South Omaha Ice & premises. The reason is obvious. Coal Co., 50 Neb. 251, 69 N. W. 785, He has contracted expressly to do it, 36 L. R. A. 424, 61 Am. St. Rep. 554. and it is possible for him to restore There was in this case also a cov- that which has been destroyed, and enant to return in the same condl- If he does not do it he must respond tidn of good repair as when the lease in damages. By rebuilding, it will was made, but this is barely referred answer the covenant to repair, and to. 764 PHYSICAL CONDITIONS. §116 The covenant to repair or keep in repair is quite frequently found in conjunction with another covenant, as to the condition -of the demised premises at the end of the term, as when the lessee covenants to repair the premises and deliver them up at the end of the term in the same condition as they are in at the time of the demise. The presence of such additional covenant does not, according to the decisions generally, affect the obli- gation of the tenant, under the covenant to repair, to rebuild in ease of destruction.®®^ But it has been suggested that in such a case the lessee's covenant to repair requires him to do so only so far as may be necessary to comply with his covenant to leave in the condition named, and that consequently it does not require him to rebuild in case of destruction.®*^ The tenant's obligation, under his covenant, to rebuild in case of fire is not affected by the fact that the lessor insured the A like view is indicated in May v. Gillis, 169 N. Y. 330, 62 N. E. 385, where it was decided that a covenant by the lessee to make all "outside and inside repairs" required him to make "ordinary repairs" only, and consequently did not deprive him of the right to vacate the premises upon their becoming untenantable owing to the removal by the munic- ipal authorities of a part which had become unsafe. sot See Nave v. Berry, 22 Ala. 382 ; Ely V. Ely, 80 111. 532; Schmidt v. Pettit, 8 D. C. (1 Mac Arthur) 179; Abby v. Billups, 35 Miss. 630, 72 Am. Dec. 143; Phillips v. Stevens, 16 Mass. 238; Myers v. Myrrell, 57 Ga. 516; Gettysburg Blec. R. Co. v. Elec- tric Light, Heat & Power Co., 200 Pa. 372, 49 Atl. 952; Armstrong v. May- bee, 17 Wash. 24, 48 Pac. 737, 61 Am. St.. Rep. 898. 962 See Mcintosh v. Lown, 49 Barb. (N. Y.) 550, where it is said: "Some authorities hold that where the cov- enant by the lessee is to repair and leave the premises in the same state as he found or received them, or language to that effect, he is merely required to use his best endeavors to keep them in the same tenantable repair, and is not bound by such a covenant to restore buildings de- stroyed by fire or otherwise during the term without his fault. This is in consequence of a construction given to the covenant that the lessee is so to repair or keep in repair the buildings, etc., as to leave the de- mised premises in the same state as he received them; and such I think Is the settled law. But where the covenant is to repair or keep in re- pair generally the buildings, etc., without the qualifying words men- tioned, all the authorities hold that it requires the tenant to rebuild, etc., in case of the accidental de- struction of the buildings, etc." No authorities are referred to in this case in support of the construction of the covenant, first above referred to, and none have come under the notice of the present writer. § 116 TENANT'S OBLIGATIONS TOWARDS LANDLORD. 765 property for his own benefit and has obtained the proceeds of such insurance.^®* But it has been held that the effect of a stip- ulation of the lease that the lessee should take out insurance to a certain amount and assign it to the lessor, for the purpose of restoring the buildings in case of fire, showed that the covenant to repair was not to be construed as imposing any liability on the lessee to rebuild in case of fire.®^* "Where, after the making of the covenant, an ordinance was adopted forbidding the erection of wooden buildings, the lessee was regarded as bound to rebuild, although to do so involved a much greater expenditure than if he could have rebuilt with wood, out of which material the buildings destroyed had been constructed.^®^ In view of the liability to which the tenant may be exposed, under his covenant to repair, in case of the destruction of the premises by fire or other accident, for which he is in no way responsible, an exception as to injuries from such causes is fre- quently inserted in the covenant. And so a covenant to repair, in general terms, may, by the language of the context, be limited to a particular class of repairs, so as not to be applicable to the restoration of a building destroyed by fire or otherwise.^®* In some states, moreover, statutes have been adopted with the pur- pose of relieving the tenant from liability in such case when his covenant contains no express exception.*®^ A statute thus pro- viding that no agreement that he will repair or leave in repair shall bind the tenant to erect similar buildings in case those on the premises are destroyed by fire has been held to apply though 963 Ely V. Ely, 80 111. 532; Leeds v. by a lessor to rebuild, it being con- Cheetham, 1 Sim. 146. strued as not intended to bind him to 9o< Sun Ins. Office v. Varble, 103 rebuild under such changed condi- Ky. 758, 46 S. W. 486, 41 L. R. A. tions. 792. The covenant was actually one »66 Richmond Ice Co. v. Crystal to deliver up the premises in good Ice Co., 99 Va. 239, 37 S. B. 851; repair at the end of the term, but Ducker v. Del Genovese, 93 App. Div. the principle of the decision would 575, 87 N. Y. Supp. 889. apply as well to a covenant to repair. sst Kentucky St. 1903, § 2297; 985 David V. Ryan, 47 Iowa, 642. North Carolina Revision 1905, § 1985 But a different view was taken in (if house destroyed or damaged to Cordes v. Miller, 39 Mich. 581, 33 more than half its value). See stat- Am. Rep. 430, as to such a covenant utes cited jwst, note 1034. 766 PHYSICAL CONDITIONS. § 116 there is a mere partial destruction or mere injury to the build- ing.^ ^^ e. Conditions precedent. The question sometimes arises whether a provision of the lease as to some thing to be done by the landlord makes a condition precedent to the obligation of the tenant to make the repairs. Covenants, for instance, by the tenant, to keep the premises in repair, "from and after" their re- pair by the landlordism or "the same being first put into repair by" the landlord,^''" have been regarded as imposing no liability on the tenant until the landlord has done the things named. Likewise it is held in England that where the tenant agrees to repair, the landlord "finding timber for the purpose," the tenant is under no obligation to repair until the landlord finds the tim- ber ,^^1 though it is sufficient that he is ready and willing to find the timber, he not being bound to cut it until required.'*^^ gut in one state it has been held that the landlord's failure to furnish material under such a covenant did not excuse the tenant's non- performance.®''* A covenant by the tenant to make repairs and one by the landlord to find materials on notice from the latter, the two covenants being in different parts of the instrument, have been regarded as independent.*''* The question is obviously one of the construction of the particular instrument. In ease the lessor covenants to repair the outside of the build- ing and the lessee the inside, the latter, it has been held, need not, in case the building falls, repair the inside, until the lessor has completed the rebuilding of the outside.^^s It does not seem that, ordinarily, a notice by the landlord to the tenant to repair would be necessary in order to put the tenant in default, since the latter is in possession and so in a 86« Sun Ins. Office v. Varble, 103 588, 34 Atl. 319, 321. Here the les- Ky. 758, 46 S. W. 486, 41 L. R. A. see's agreement was. "to keep the "^92. fences in proper repair, the ma- 969 Slater v. Stone. Cro. Jac. 645. terial for which to be furnished by sTONeale v. Ratclife, 15 Q. B. 916; the lessor." Coward v. Gregory, L. R. 2 C. P. o^i Tucker v. Linger, 21 Ch. Div. 1530. 18, per Kay, J.; Mucklestone v. 971 Thomas v. Cadwallader, Willes, Thomas, Willes, 146. 496. 975Leavitt v. Fletcher, 92 Mass. 972Martyn v. Clue, 18 Q. B. 661. (10 Allen) 119. DTswood V. Sharpless, 174 Pa. § 116 TENANT'S OBLIGATIONS TOWARDS LANDLORD. 767 position to discover the need of repairs. It has been decided that even when a notice to repair is necessary in order to enforce a forfeiture of the leasehold for nonrepair, the notice need not state the particular repairs necessary.^''^ Occasionally a lease contains both a covenant to repair and also a covenant to repair after a notice from the landlord of a specified length, and it has been held that such covenants are independent, so that the land- lord may enforce the tenant 's liability under the former although no notice has been given imder the latter, or the notice has not expired,^^'' and that if notice is given to repair, vpithout reference to the time named in the latter covenant, it will be referred to the general covenant to repair, and not to that to repair on no- tice.^^* But a covenant to repair at all times when occasion may require during the term ' ' and at the furthest within three months after notice" is a single covenant, and the lessee is boTind to re- pair only after the notice named.^^'* f. Accrual and continuance of liability. On a covenant to keep in repair, an action may be brought as soon as the premises / become out of repair, without waiting for the end of the term,^**' but if the premises are injured by some accidental cause, the lessee has a reasonable time within which to repair.^^i The covenant is continuous in its nature, and consequently in case of successive breaches a separate action may be brought for each breach,®*^ and the fact that there has been a recoverjc for a breach thereof is no bar to a subsequent action against the lessee or his assignee, so long as the premises are out of repair, 970F0SS y. Stanton, 76 Vt. 365, 57 Payne v. James, 42 La. Ann. 230, 7 Atl. 942. So. 457, contra, seems to be based on 977 Bayiis v. Le Gros, 4 C. B. (N. the construction of a particular S.).537; Doe d. Morecraft v. Meux, lease. 4 Barn. & C. 606. So, under a covenant to "maintain 978 Pew V. Perkins, L. R. 2 Exch. the buildings," the lessee can be 32 ~* sued at any time if he neglects to 979Horsefall v. Testar, 7 Taunt, maintain them. Buck v. Pike, 27 385. Vt. 529. 980 Luxmore V. Robson. 1 Barn. & »si Sheppard's Touchstone, 173; Aid. 584; Schieffelin v. Carpenter, 15 Anonymous, 1 Dyer, 33 a. Wend. (N. Y.) 400; Perry v. Bank of 982Coffln v. Talman, 8 N. Y. (4 Upper Canada, 16 U. C. C. P. 404. Seld.) 465. 768 PHYSICAL CONDITIONS. § ]16 though such former recovery may be asserted in mitigation of damages.®^^ That a subsequent lessee has covenanted to make the repairs which the first lessee should have made under his covenant,**** and even that such subsequent lessee has actually made them,885 (joes not, it has been held, aft'ect the liability of the first lessee for breach of his covenant. g. Specific enforcement of contract. Specific performance of a contract to repair will not be granted by a court of equity."** In one case, however, performance of a contract to repair, not occurring in connection wth a lease, was in effect specifically en- forced by an injunction against the continuance of the state of disrepair.^87 n has been in one state decided that a mandatory injunction would not issue to compel the lessee to comply with his covenant to repair, the building not appearing to be in dan- ger, the lessee having offered to permit the lessor to make repairs, and the lessor having an adequate remedy at law.^** h. Damages for breach. In case there is a breach of a cov- enant to keep in repair, and an action on account of such breaek is brought during the term, the measure of damages has, in England, been stated to be the amount to which the salable value of the reversion is injured by the nonrepair of the premises, and not the amount which would be necessary to put the premises in repair, since the landlord is not bound to expend the damages awarded him in making repairs, nor has he any right, without permission, to enter on the premises to make repairs.^** It has, however, been said by the highest English court that no "hard and fast rule" can be laid down as to the damages in such ease, 983 Coward v. Gregory, L. R. 2 C. Westminster Chambers Ass'n [1893] P. 153. 1 Ch. 124. 984joyner v. Weeks [1891] 2 Q. B. "ss Jarvis v. Hernwood, 25 N. J. 31. Bq. (10 C. B. Greene) 460. osBAppletonv. Marx, 117 App.Div. "^^ Smith v. Peat, 9 Bxch. 161; 206 102 N y Sudd 2 ■^°® ^' Schools & Almshouses v. Rq-w- oLa T^ ' c. "t," ^ ,..^ ^. la^'i'ls, 9 Car. & P. 734; Mills ▼. 986 See Fry, Spec. Perf. (4th Ed.) „ ,. ^„ ^„',^ ,, „. ' Guardians of Poor of East London 41; Hill y. Barclay, 16 Ves. Jr. 402. union, L. R. 8 C. P. 79. See Watris* 987 Lane v. Newdigate, 10 Ves. Jr. v. Cambridge Nat. Bank, 130 Mass. 192. But see comment on this de- 343; Henderson v. Thorn [1893] 2 clsion in Ryan v. Mutual Tontine Q. B. 164. § 116 TENANT'S OBLIGATIONS TOWARDS LANDLORD. 769 but that "all the eircumstaiiees of the case must be taken into consideration, and the damages must be assessed at such a sum as reasonably represents the damage which the covenantee has sustained by breach of covenant, "^^o Regarding the injury to the value of the reversion as the proper measure of damages, the fact that the term has a greater or less time still to run may have an important bearing on the question of damages, since, if the expiration of the term is remote, the present state of disre- pair may not aifect, to any considerable extent, the value of the reversion.^^i In that jurisdiction, moreover, if the action is brought after the end of the term, it is regarded as equivalent to an action on an agreement to leave in repair, and the measure of damages has been asserted to be the reasonable cost of making the repairs,®82 without reference to whether the landlord has made them or intends to make them,893 or to whether the fail- ure to make them has diminished the value of the reversion.^"* It has been said that the landlord is in such ease entitled also to recover compensation for any loss of the use of the premises as a result of the making by him of the repairs.®*^ In this country, the cost of making the repairs has ordinarily been regarded as the proper measure of damages, without ref- erence to whether the action is brought before or after the ex- piration of the term.^9® A recent case in the highest court of ""o Conquest V. Ebbetts [1896] App. 770; Joyner v. Weeks [1891] 2 Q. B. Cas. 490. 31. »9i Doe d. Schools & Almhouses v. 995 See Woods v. Pope, 6 Car. & P. Rowlands, 9 Car. & P. 734, per Cole- 782; Birch v. Clifeord, 8 Times Law ridge, J.; Turner v. Lamb, 14 Mees. R. 103. &W. 412; Ebbetts V. Conquest [1895] sso Lehmaier v. Jones, 100 App. 2 Ch. 377. Compare Atkinson v. Div. 495, 91 N. Y. Supp. 687; Mark- Beard, 11 U. C. C. P. 245, to the ham v. David Stevenson Brew. Co., effect that the fact that the lease 104 App. Div. 420, 93 N. Y. Supp. has many years to run does not re- 684; Webster v. Nosser, 2 Daly (N. strict the recovery to nominal dam- Y.) 186, 3 Abb. Pr. (N. S.) 39, 33 ages. How. Pr. 136, in which latter case 892 Joyner v. Weeks [1891] 2 Q. B. the court says that the lessee could, 31; Morgan v. Hardy, 17 Q. B. Div.' In equity, apparently, compel the 770. lessor to apply the money to repairs. 993Rawlings v. Morgan, 18 C. B. The decision is based on Vivian v. (N. S.) 776; Inderwick v. Leech, 1 Campion, 1 Salk. 14(1, 2 Ld. Rayn. 1, Times Law R. 95, 484. 125, which is not approved by .some »»4 Morgan v. Hardy, 17 Q. B. Div. of the later English cases. See, L. and Ten 49. 770 PHYSICAL CONDITIONS. § 116 New York explicitly adopts the English rule that such is the ease if the action is brought after the term, regardless of whether the value of the reversion has been impaired thereby .®^^* It appears to have been decided in England that, in the case of a covenant to repair after notice of a specified period, if after notice and the expiration of such period, and the tenant's failure to make repairs, the landlord himself makes the repairs, he can recover the reasonable cost thereof,^^'^ while he can recover only nominal damages in case he himself makes repairs upon the ten- ant's noncompliance with a general covenant to repair, for the reason, it is said, that the premises are not in that case out of repair at the time of bringing the action.^^* In case of a covenant by a subtenant to keep in repair, in determining the measure of damages for breach, considerations may enter other than those applicable when the covenant is in a head lease. If there is such a covenant both in the head lease and in the sublease, the fact that the intermediate lessee is liable on his covenant is to be considered in determining the subtenant's liability on his covenant, provided the sublease was taken with notice that the person making it was himself a lessee.^^^* The covenant by the subtenant to repair, though expressed in the same terms as that of the sublessor, does not, however, neces- sarily entitle the latter to recover, on its breach, the full amount for which he, the sublessor, may be liable to the original lessor on the covenant of the head lease, since the two covenants are entered into at different times and for different periods."**'' Nor can the intermediate lessee recover, under the subtenant's cov- also, apparently to the effect tha t the for the damage and loss sustained cost of repairs is the measure of by the injury to the property." damages, Simkins v. Cordele Com- 996a Appleton v. Marx, 191 N. Y. 81, press Co., 113 Ga. 1050, 39 S. B. 407; 83 N. E. 563, 16 L.. R. A. (N. S.) 210. Martinez v. Thompson, 80 Tex. 568, 997 Colley v. Streeton, 2 Barn. & 16 S. W. 334; Lockrow v. Horgan, 58 C. 273. N. Y. 635. In Moses v. Old Domin- 998 Doe d. Rutzen v. Lewis, 5 Adol. ion Iron & Nail Works, 75 Va. 95, it & E. 277; Williams v. Williams, L. is said that the measure of damages R. 9 C. P. 659. for breach of such a covenant is the 998a Conquest v. Ebbetts [1896] sum "necessarily expended in restor- App. Cas. 490, affg. Ebbetts v. Con- ing the property to its former condi- quest [1895] 2 Ch. 377. tlon, or perhaps such sum as will be 908b Penley v. Watts, 7 Mees. & W. sufficient to compensate the lessor 601; Minshull v. Oakes, 2 Hurl. & N. § 116 TENANT'S OBLIGATIONS TOWARDS LANDLORD. 771 enant, the costs incurred by him in an action brought by the original lessor to enforce the covenant in the head lease, as if the covenant in the sublease were one of indemnity .®®^'= But it has been decided that a provision of the sublease, making it in terms "subject in all respects to the terms of an existing lease and the covenants and stipulations contained therein," is in effect a covenant of indemnity, and entitles the lesse.e to recover from the sublessee the costs of an action which the lessee has reasonably defended-^^^** It has been decided in England that if the head landlord notifies his tenant to repair, in accordance with the latter 's covenant, and the latter then notifies the sub- tenant to make the repairs and, upon the latter 's noncompliance, does them himself to avoid a forfeiture, the tenant, though he may be a trespasser in entering on the subtenant's premises to make the repairs, may recover from the subtenant the cost of the repairs so made.^^^" i. Rights and liabilities on assignment. A covenant by the lessee to repair runs with the land and consequently binds an assignee of the leasehold interest,"®* and the benefit thereof passes to a transferee of the reversion.!""" If one Avho has committed a breach of the covenant afterwards assigns the leasehold, and the ' repairs are still unmade at the time of the assignment, the as- signee is bound to make them, and is liable on the covenant for his failure so to do.^""! It has in effect been decided that if the 793; Walker v. Hatton, 10 Mees. & Wakefield v. Brown, 9 Q. B. 209; Wil- W. 249. liams v. Earle, L. R. 3 Q. B. 739; 098c Penley v. Watts, 7 Mees. & W. Perry v. Bank of Upper Canada, 601; Walker v. Hatton, 10 Mees. & 16 U. C. C. P. 404. It binds an W. 249. assignee of the leasehold in part of 998d Hornby v. Cardwell, 8 Q. B. the premises. Congham v. King, Div. 329. Cro. Car. 221; Stevenson v. Lambard, 9»seColley V. Streeton, 2 Barn. & 2 Bast, 580. C. 273. Compare Williams v. Wll- tooo Badeley v. Vigurs, 4 El. & Bl. liams, L. R. 9 C. P. 659, where the 71; Sampson v. Easterby, 9 Barn. & sublessor was not allowed to recover C. 505; Martyn v. Williams, 1 Hurl, the cost of repairs made by him to & N. 817. avoid a forfeiture for the reason that looi Coffin v. Talman, 8 N. Y. (4 he did not give the sublessee proper Seld.) 465; Coward v, Gregory, L. R. notice to make the repairs. 2 C. P. 153; Plummer v. Johnson, 18 999 Spencer's Case, 5 Coke, 16; Times Law R. 316. See post, § 149, Badeley v. Vigurs, 4 Bl. & Bl. 71;' at notes 190, 191. 772 PHYSICAL CONDITIONS. § 117 leasehold has passed through several hands, and the premises are out of repair at the time of action brought, and are proven to have been so when held by the defendant, it is for him to show how much of the injury arose subsequently to his occupation.!""* It has been decided that a transferee of the reversion cannot recover on a covenant to keep in repair, if the premises were out of repair at the time of the transfer, and the tenant merely al- lowed them, after the transfer, to remain in the same condition, it being said that the tenant's duty to such transferee "is to be measured by the condition of the property at the time of the transfer."!""* On the other hand it has been decided that a covenant to repair on notice could be enforced by the transferee of the reversion, though the lack of repair existed at the time of the transfer, notice not having been then given.i""* § 117. Contract to make alterations or improvements. The tenant is under no obligation, apart from express contract, to make alterations or improvements on the premises, and so he is not bound to pay the cost of improvements voluntarily made by the lessor, after making the lease, in anticipation of the les- see's occupaney.i""^ Occasionally, however, the tenant contracts to make alterations or improvements. A covenant to rebuild the structures on the premises is not sat- isfied, it has been held, by mere repairs,!""^ but a covenant to put and keep in repair, and take down as occasion may require, and build new houses, was held to be satisfied by repairing the houses so as to make them as good as new.^""^ A covenant to rebuild does not necessitate an erection precisely similar in form, style and elevation to that previously existing.!""^ It has been decided that a covenant to "keep up" the side- walks "in front of " a corner lot leased obliged the tenant to pay As to the liability of an executor iocs First Nat. Bank v. Lucas. 21 on his testator's covenant, see ante, Neb. 280, 31 N. W. 805. §§ 55 a, 158 a 2 (b), notes 373, 374. looe city of London v. Nash, 3 Atk. 3 002 Smith V. Peat, 9 Bxch. 161. 512. 1003 Foss V. Stanton, 76 Vt. 365, 57 1007 Evelyn v. Raddish, 7 Taunt. Atl. 942. Johnson v. St. Peter's, 411. Hereford, 4 Adol. & E. 520, is to the loos Low v. Innes, 4 De Gex, J. * same effect. S. 286. loMMascal's Case, 1 Leon. 62. § 117 TENANT'S OBLIGATIONS TOWARDS LANDLORD. 773 for the construction, under a municipal ordinance, of a sidewalk "along the side of" the lot.i""* A covenant to keep in repair the buildings which the lessee had agreed to erect was held to in- volve a continuing obligation to erect such buildings, since this was necessary to enable him to keep them in repair.i^^" A contract to deliver, as part of the rent, refuse from the stave mill to be erected by the lessee has been regarded as imposing on him an obligation to erect the milL^"!"* A covenant to make "im- provements" to a specified amount is satisfied by the erection of new buildings to that amount as well as by the making of repairs and additions to old ones. i" 11 A provision that certain specified work and such other work as "may be needed or desired in and about" said premises shall be done by the lessees ' ' at their expense ' ' was held merely to relieve the lessor from the expense of work done at the desire of the lessees, and not to impose on the lessees the expense of work de- sired by the lessor.io^^ If the lessee agrees to make improvements to the approbation of a person to be named by the landlord, the naming of such per- son is, it has been held, a condition precedent to the tenant's ob- ligation to perform-^o^^ And even though the person so named is not satisfied, a forfeiture will not be declared if he should have been satisfied.^ "i* Where the tenant was to retain out of the rent the cost of improvements to be made by him to the satis- faction of the landlord, he was regarded as entitled to exercise the right of retention even though the landlord's approval had not been expressed.^ "^^ A covenant by the lessee to comply with all the rules, regula- tions, and ordinances of the various city departments has been held not to impose upon him the obligation of removing, upon the demand of the city authorities, a stone stoop and steps ex- 1000 City of Des Moines v. Dorr, 31 1012 Wicker v. Lewis, 40 111. 251. Iowa, 89. 1013 Ccombe v. Green, 11 Mess. & 1010 Bennett v. Herring, 3 C. B. (N. -y^ 480; Hunt v. Bishop, 8 Exch. S.) 370; Jacob v. Down [1900] 2 g,^g ^^- 1^^- 101* Doe d. Baker v. Jones, 2 Car. loioa Noland v. Cincinnati Coop- erage Co., 26 Ky. Law Rep. 837, 82 S. W. 627. 1011 Peters v. Stone, 193 Mass. 179, ^- 105 79 N. B. 336. K. 743. 1015 Dallman v. King, 4 Bing. N. 774 PHYSICAL CONDITIONS. § 117 tending beyond the building line.i°i® And a covenant by him to surrender the premises in as good condition as when received, subject to certain specified alterations to be made by the lessee, imposes on him no obligation to pay the cost of rebuilding a wall condemned by the city authorities as unsafe.io^^ A covenant to bear all the expenses of repairing during the tenancy has been held to require the lessee to bear the expense of repairs required by the city authorities in order to render the structure safe, the lessor having made the repairs after requesting the lessee either to make them or to vacate the premises, and the latter having refused to do either.!"*^* And such a covenant has been re- garded as entitling the lessor to reimbursement for the cost of constructing a new drain in accordance with the demand of the city authorities.^"^" In England there has been considerable litigation upon the question whether a covenant by the lessee of a particular char- acter, such as one to pay "rates," or one to pay "assessments," "impositions," "duties," "charges" or "outgoings," involved an obligation to pay for alterations or improvements required by law."2o For the performance of a covenant to make improvements, as for the performance of one for specific repairs, the lessee has, it would seem, the full time of the lease, since during the lease he, and not the landlord, is the one injured by the want of the im- provements.i''2i A provision, however, that the improvements 1016 City of New York v. U. S. loio Keroes v. Ricliards, 28 App. D. Trust Co., 116 App. Div. 349, 101 N. C. 310, ante, note 313. Y. Supp. 574. 1020 See Fawcett, Landl. & Ten. (3d A covenant by the lessee to comply Ed.) at p. 389. That a covenant to with the orders of the municipal pay all "outgoings" includes such building department for the correc- expenses, see Goldstein v. Hollings- tion, prevention and abatement of worth [1904] 2 K. B. 578; Morris v. nuisances or other grievances has Beal [1904] 2 K. B. 5S5; Stockdale been held not to impose upon him v. Ascherberg [1904] 1 K. B. 447; the obligation to construct a fire Harris v. Hickman [1904] 1 K. B. 13. escape required by that department. 1021 Chlpman v. Emeric, 5 Cal. 49, Kalman v. Cox, 46 Misc. 589, 92 N. 63 Am. Dec. 80; Palethorp v. Berg- Y. Supp. 816. ner, 52 Pa. 149; Givens v. Caudle, 34 loiT Clark v. Gerke, 104 Md. 504, La. Ann. 1025; Mortimer v. Hanna, 65 Atl. 326. 82 Miss. 645, 35 So. 159. 1018 Martinez v. Thompson, 80 Tex. The fact that the tenant is allowed 568, 16 S. W. 334. to hold over does not extend the §117 TENANT'S OBLIGATIONS TOWARDS LANDLORD. 775 shall be made immediately/ "^^^ or within a certain time,*''*^ is binding, and an action may be brought on the lessee's failure so to make them, without awaiting the expiration of the term.^*'24 In case of the lessee's noncompliance with a covenant to make certain improvements, or to leave such improvements on the premises, the landlord can recover the cost or value of such improvements.io^B The failure to make improvements as agreed is not ground for rescission of the lease.^''^^ It is no defense to an action on such a covenant that the fen- ant refrained from making the improvements because he was told by a third person that the premises belonged to such person and not to the lessor.i'^^T A covenant to erect buildings within a certain period named has been regarded as broken once for all, if the buildings are not erected within such period, and as consequently not a continuing covenant.^ "28 The rule that a covenant as to a thing not in esse runs with the land only when assigns are mentionedj^'^^ would seem to apply time for the making of the improve- ment. Pollman v. Morgester, 99 Pa. 611. In Bulmer v. Brumwell, 13 Ont. App. 411, it was held that the lan- guage of the lease, construed in con- nection -with the surrounding cir- cumstances, required the improve- ment to be erected during the first year of the term, though the cove- nant as expressed was to erect it "during the said term," these words being regarded as indicating that it was not to be erected before the term. 1022 It was held that a finding that there was no breach of a covenant to make improvements without delay- was justified, although two and a half months had elapsed without making them, it appearing that dur- ing this time the lessee was making preparations and negotiating con- tracts for the work. Lundin v. Schoeffel. 167 Mass. 465, 45 N. E. 933, 57 Am. St. Rep. 472. 1023 Davies v. Clark, 10 App. Dlv. 68, 41 N. Y. Supp. 825. 1024 Davies v. Clark, 10 App. Div. 68, 41 N. Y. Supp. 825. io25Barnhart v. Boyce, 102 111. App. 172; Scott v. Haverstraw Clay & Brick Co., 135 N. Y. 141, 31 N. B. 1102. 1020 Mortimer v. Hannah, 82 Miss. 645, 35 So. 159. The decision in this case is no doubt correct, but the court fails to recognize that a lease Is primarily a conveyance ra,ther than a contract. 1027 Long V. Douglass, 59 Tenn, (12 Heisk.) 147. 1028 Jacob V. Down [1900] 2 Ch. 156. So that acceptance of rent thereafter was a waiver of a right of re-entry for the breach. 1029 See post, § 149 b (4). 776 PHYSICAL CONDITIONS. §118 in the case of a covenant to erect entirely new structures upon the land, though perhaps not to a covenant to make improvements on structures already in existence. It has, however, been decided that a covenant to pull down old chimneys and to erect others in their place would bind assignees, though not named-i^^o j^ assignee is not liable for breach of a covenant to make improve- ments within a specified time, which time has elapsed before the assignment, since the breach is prior to the assignment.^^^i § 118. Contract as to condition at end of term. a. Particular causes of injury. The stipulation, sometimes foimd ia an instrument of lease, to the effect that the lessee will relinquish or deliver possession to the lessor at the end of the term, involves no obligation on the part of the tenant as to the condition of the premises at the time of such relinquishment.!"^^ More generally, however, the lessee agrees to leave the premises in a particular condition named, as for instance, in "as good re- pair and condition as when demised," or "in good repair," or some equivalent expression is used. It has been decided in several cases that the covenant to leave in the same condition as at the time of the demise does not re- quire the tenant to repair, or to rebuild, in case of injury by fire, not resulting from his fault, or by other accidental cause, the cove- nant being thus given a less extensive effect as against the ten- ant than the covenant to repair or ketp in repair.^''^^ A different 1030 Harris V. Goslin, 3 Har. (Del.) loss Warner v. Hitchins, 5 Barb. 338. (N. Y.) 666; Warren v. Wagner, 75 losiGrescot v. Green, 1 Salk. 199; Ala. 188, 51 Am. Rep. 446; Junction Townsend v. Scholey, 42 N. Y. 18; St. Min. Co. v. Springfield Junction Coal Saviour's Churcli v. Smith, 3 Bur- Co., 222 111. 600, 78 N. B. 902; Wains- row, 1271. See Gerzebek v. Lord, 33 cott v. Silvers, 13 Ind. 500; Levey v. N. J. Law, 240; Morris v. Kennedy Dyess, 51 Miss. 501; Howeth v. And- [1896] 2 Ir. 247. See post, § 149 b erson, 25 Tex. 557, 78 Am. Dec. 538; (9), at notes 192-194; § 158 a (2) Miller v. Morris, 55 Tex. 412, 40 Am. (c). Rep. 814. In Halbut V. Forrest City, 1032 Nave V. Berry, 22 Ala. 382. So 34 Ark. 246, it is said, per Eakin, J., In case of a covenant to return "with in speaking of a covenant of this appurtenances," the latter phrase be- character, "It is a question of the ing regarded as merely formal, real intention and meaning of the Maggort V. Hansbarger, 8 Leigh parties whether or not the tenant (Va.) 532, meant to assume the position of an § 118 TENANT'S OBLIGATIONS TOWARDS LANDLORD. 777 view has, however, been assertedji^^* and it is perhaps difficult to see why the covenant should be construed as not applying to accidental injuries while that for repairs is so applied.^"^^* Accepting the doctrine of the cases first above referred to, 'that such a covenant does not impose liability on the tenant when the injuries are the result of accident, it seems that there is but little room for the application of the covenant ; and indeed it has been said to be but the expression of the "implied obligation or duty resting on the tenant. "^^^^ So, while denying the tenant's ''lia- bility by reason of such a covenant, in case of destruction of the buildings by accident, it has been stated that he is liable there- under if the fire is the result of his own liegligence.i°3® In an- other case the covenant to deliver up the premises in as good state and condition as reasonable use and wear thereof will permit was regarded as making the tenant liable for the act of a stran- ger only in so far as allowing the stranger to commit such acts could be regarded as waste.i"^^ ■V insurer against fire. In arriving at liability on the lessee If trees are this meaning, the circumstances and blown down. Sheppard's Touch- probable intention of the parties will stone, 173. be considered, and the tendency of There are, in some jurisdictions, the more recent decisions is averse to statutes in effect providing that such extending the responsibility of the a covenant to leave or return the tenant when the covenant is not premises in good condition or the special and express and so clear a^ like shall not involve an obligation to leave little doubt that he really to rebuild structures destroyed with- meant to take the risk of an insur- out the tenant's fault. Kentucky er." St. 1903, § 2297; Maryland Code Pub. 1034 Sheppard's Touchstone, 173;- Gen. Laws 1904, art. 53, § 28; Miss- Pym V. Blackburn, 3 Ves. Jr. 34; issippi Code 1906, § 2834; Virginia Armstrong v. Maybee, 17 Wash. 24, Code 1904, § 2455; West Virginia 48 Pac. 737, 61 Am. St. Rep. 898; Code 1906, § 3071. Priest V. Foster, 69 Vt. 417, 38 Atl. io3*a See ante, at notes 945, 951 a. 78; Schmidt V. Pettit, 8 D. C. (1 Mac loss Warren v. Wagner, 75 Ala. Arthur) 179; Pasteur v. Jones, 1 N. 188, 51 Am. Rep. 446; Davenport v. C. 393 (Conf. R. 194); Phillips v. IJ. S., 26 Ct. CI. 338; Junction Mln. Stevens, 16 Mass. 238; Stevens v. Co. v. Springfield Junction Coal Co., Pantlind, 95 Mich. 145, 54 N. W. 716 222 111. 600, 78 N. B. 902. (semble). And see Jaques v. Gould, loae Gibson v. Eller, 13 Ind. 124; 58 Mass. (4 Gush.) 384. Miller v. Morris, 55 Tex. 412, 40 Am. But a covenant to leave a wood in Rep. 814. the same state as at the time of the iost Beekman v. Van Dolsen, 63 demise is construed as not Imposing Hun, 487, 18 N. Y. Supp. 376. In this 778 PHYSICAL CONDITIONS. § 118 The covenant to redeliver the premises in the same condition as at the time of the demise does not make the lessee liable for the natural decay of the premises arising from the gradual action of the elements,^ "3* nor, it has been decided, for such wear and tear as is incident to the use to which the premises were put by the lessee, such use being approved by the lessor-^^^o j^ qq-^, enant to deliver in good order and repair has been regarded as imposing no obligation to rebuild a structure destroyed by a hostile army. 1040 It has been held that a covenant to return the premises in as good condition or repair as they were in at the time of the lease does not require the tenant to restore a building which falls down in consequence of defects in its original construction.^"*! The tenant is liable, under a covenant to yield up in repair, by reason of his failure to repair defects or injuries caused by his own voluntary act, as by removing parts of the building.i''*^ case it was considered that in case of Davenport v. TJ. S., 26 Ct. CI. 338; injuries by a stranger the tenant was Harris v. Goslin, 3 Har. (Del.) 338. guilty of permissive, and not of vol- But in Sturges v. Knapp, 31 Vt. 1, a untary or commissive, waste (see case of a railroad property, a con- ante, § 110) and there was held to be trary view is asserted, no waste because the tenant took all loao Jennings v. Bond, 14 Ind. App. possible measures by legal proceed- 282, 42 N. E. 957. See Watriss v. Ings to prevent the acts of injury by Cambridge Nat. Bank, 130 Mass. 343; the stranger, the city dock depart- Haas v. Brown, 20 Misc. 672, 46 N. ment. Compare Cohn v. Hill, 9 Y. Supp. 540. Misc. 32C, 30 N. Y. Supp. 209. ipio Pollard v. ShaafCer, 1 Dall. A covenant to return the premises (Pa.) 210, 1 Am. Dec. 239. Compare in as good condition as when re- ante, § 116 d. ceived was held to be broken, appar- i04i Lister v. Lane [1893] 2 Q. B. ently, if the lessee left fire in a 212. So where there was an excep- dangerous place on the premises, tion of ordinary wear and tear, without the lessee's knowledge, upon Hess v. Newcomer, 7 Md. 325. And relinquishing possession at the end see Drouin v. Wilson, 80 Vt. 335, 67 of the term. Stevens v. Pantlind, Atl. 825. 95 Mich. 145, 54 N. W. 716. 1042 pyot v. St. John, Cro. Jac. 329; In Taylor v. Campbell, 123 App. Murray v. Moross, 27 Mich. 203; Div. 698, 108 N. Y. Supp. 399, it was Watriss v. First Nat. Bank, 124 Mass. held that the fall of a picture leased 571, 26 Am. Rep. 694; Id., 130 Mass. with the house was the result of 343; McGregor v. Board of Bduca- "ordinary reasonable use" within an tion, 107 N. Y. 511, 14 N. B. 420; exception in the covenant to return. Browning v. Garvin, 48 App. Div. 1038 Sheppard's Touchstone, 169; 140, 62 N. Y. Supp. 5ii4. § 118 TENANT'S OBOdSTIONS TOWARDS LANDLORD. 779 In the ease of a covenant to deliver up the premises in as good condition as w^hen received, an exception of "ordinary wear and tear" has been held to cover the fall of a building owing to its defective construction,!''''^ and an exception of "ordinary wear" has been held to cover the breakage of glass caused by defects in construction.!"** But an exception of "ordinary wear and tear" has been decided, most properly, it would seem, not to cover "barking and ploughing up" young trees in an orchard on the farm leased, as a result of cultivating a crop in the orchard.!"*" An exception in such a covenant of injury by the elements has been regarded as including injury caused by a flood of water from a reservoir, though the escape of the water was owing to the lessee's negligence.^"*" But elsewhere it has been decided that such an exception does not relieve the tenant from liability under his covenant for fire caused by his negligence.!"*'^ It does, how- ever, it has been decided, relieve him from liability for accidental fire.!"*« b. Character of condition required. A covenant to yield up in repair, or in good or tenantable repair, like a covenant to re- pair,!"*" ig tQ \,Q construed with reference to the age of the build- ings, and it involves no obligation to put on old premises repairs sufficient to make them equal to new,!"^" and likewise the char- But in Marks v. Chapman, 135 34, 61 N. W. 823, 30 L. R. A. 737, 51 Iowa, 320, 112 N. W. 817, it is held Am. St. Rep. 493. that a covenant to surrender in as "" Porter v. Allen, 8 Idaho, 487, good condition as reasonable use 69 P^c. 105, 236. In the so-called .^ ^.^ ^ . ., „ "Nitro-Glycerine Case," 82 U. S. (15 would permit did not require the / Wall.) 524, it was apparently as- lessee to obliterate alterations made ^^^^^ ^^^^ ^^^^ ^^ exception did by him in the building for the ^^t relieve the tenant from liability purposes of the business for the con- ^^^ .^.^^.^^ ^^^^^^ ^^ ^^ explosion duct of which the premises were ^^^ ^^.^^ ^^ ^^^ ^^^ responsible. leased. loisvan Wormer v. Crane. 51 1043 Hess V. Newcomer, 7 Md. 325; ^^^^^ ggj^ jg j^ ^ ggg_ ^^ j^^ ^^^ Machen v. Hooper, 73 Md. 342, 21' 5^3 ; Allen v. Culver, 3 Denio (N. Atl. 67. Compare ante, at note 945 i. y ) 284. 1044 Drouin v. Wilson, 80 Vt. 335, 1049 See ante, at notes 921, 922. 67 Atl. 825. 1060 Payne v. Haine, 16 Mees. & 1045 Thompson v. Cummings, 39 w. 541; Harris v. Jones, 1 Moody & Mo. App. 537. See also, ante, at r. 173; Stanley v. Towgood, 3 Bing. notes 945g-945i. N. C. 4; Mantz v. Goring, 4 Bing N. 1046 Wright V. Tileston, 60 Minn. C. 451. 780 PHYSICAL CONDITIONS. § 118 acter and location of the premises are to be considered in de- termining the character and degree of the repairs to be made.*"'* A covenant to "deliver the premises at the end of the lease, in good tenantable repair in every respect" has been regarded as imposing an obligation to put the premises in repair, whatever may be their condition at the time of the lease,!''^^ -w^hile, in the same jurisdiction, the covenant to "keep the premises in good repair and leave them in the same good order at the end of the term" was held to impose no such obligation.i^^s jy^j elsewhere a covenant to deliver the premises in as good condition as when received has been held to impose no obligation to pay for the re- construction of a part of a building in accordance with an order of the inspector of buildings.i^^* A covenant to leave the premises "sufficiently repaired" has been held to be violated by leaving cracked glass in the win- dows,^"''* and covenants to leave in "good repair" or in "good condition" were held to render the tenant liable if he left the window glass broken.i^se A covenant by the lessee to leave the premises in the same con- dition as at the time of the lease has been held to require thg tenant to clear away chattels belonging to him which had been rendered worthless by fire.^"®'' It has, however, been decided that a covenant to yield up "in good tenantable repair" did not involve any obligation to remove ashes and rubbish on the prem- ises-i^s* There is sometimes a specific provision requiring the removal of a particular class of articles-i^^^ 1051 proudfoot V. Hart, 25 Q. B. every crack in the glass or every Div. 42. scratch on the paint." io52Brashear v. Chandler, 22 Ky. losa Holbrook v. Chamberlin, IIG (6 T. B. Mon.) 150, 17 Am. Dec. 132. Mass. 155, 17 Am. Rep. 146; Cohn v. 1053 West V. Hart. 30 Ky. (7 J. J. Hill, 9 Misc. 326, 30 N. Y. Supp. 209. Marsh.) 258, 23 Am. Dec. 404. But 1057 Boardman v. Howard, 90 see Grayson v. Buie, 26 La. Ann. 637, Minn. 273, 96 N. W. 84, 64 L. R. A. contra, as to a covenant to restore 648, 101 Am. St. Rep. 409. "in good repair." io58 Thorndike v. Burrage, 111 1054 Clark v. Gerke, 104 Md. 504, Mass. 531. 65 Atl. 326. 1059 In Scott v. Haverstraw Clay & 1055 pyot V. St. John, Cro. Jac. 329. Brick Co., 135 N. Y. 141, 31 N. E. But in Scales v. Lawrence, 2 Fost. & 1102, effect was given to a covenant F. 289, it is said by Willps, J., that by the lessee of a brick yard not to "the landlord is not to claim for allow "bats" to be thrown into a § 118 TENANT'S OBLIGATIONS TOWARDS LANDLORD. 781 There is in England a decision to the effect that, in view of other language in the instrument of lease, a covenant by the lessee to leave the premises in the same condition in which they "now" are, referred to their condition at the commencement of the term and not at the date of the lease,!"*" ^mj the same con- struction was, in a recent ease in this country, placed upon such a clause, in view of the circumstances surrounding the making of the lease.!"®! c. Parts of premises within contract. A covenant to leave in repair has been held to apply to buildings erected by the ten- ant during the term;!""^ but a different construction has, in -fhis country, been placed upon a covenant to leave the premises in as good repair as when received, there being no buildings upon the premises at the time of the lease.!"®* d. Accrual of liability. A covenant to deliver up in repair, or in a particular condition, at the end of the term, is ordinarily regarded as incapable of breach until the end of the term.!""* By some authorities, however, a distinction is asserted accord- ingly as the action is by reason of an injury to the premises which neighboring stream, he being held Wend. (N. T.) 400; Payne v. James, bound to remove at the end of the 42 La. Ann. 230, 7 So. 457; Agate v. term any bats so thro-wn. See, also, Lowenbein, 4 Daly (N. Y.) 262; Coppinger v. Armstrong, 8 111. App. Rosenbloom v. Finch, 37 Misc. 818, (8 Bradw.) 210. 76 N. Y. Supp. 902; Haas v. Brown, In Fleischman V. Toplitz, 134 N. Y. 21 Misc. 434, 47 N. Y. Supp. 606; 349, 31 N. B. 1089, it was decided Snowhlll v. Reed, 49 N. J. Law, 292, that the tenant, upon relinquishing 10 Atl. 737, 60 Am. Rep. 615; Reed possession, under the local statute, v. Snowhlll, 51 N. .7. Law, 162, 16 on the destruction of the building Atl. 679, 32 L. R. A. 625; Wright v. (post, § 182 p [8] [f]), was, apart Tileston, 60 Minn. 34, 61 N. W. from express stipulation, not bound 823, 30 L. R. A. 737, 51 Am. St. to remove carcasses of horses de- Rep. 493. Consequently there is no stroyed with the building. right of action in the executor of 1060 White v. Nicholson, 4 Man. & the lessor if the latter dies before the (J. 95. end of the term. Palmer v. Brook- 1061 Chesapeake Brew. Co. v. Gold- lyn, 28 N. Y. St. Rep. 139, 8 N. Y. berg, 107 Md. 485, 69 Atl. 37. Supp. 6. 1002 Brown v. Blunden, Skin. 121; Such a covenant does not preclude Douse v. Earle, 3 Lev. 264. the lessee from removing fixtures 1063 Cosgrave v. Hammill, 173 Pa. provided he replaces them before the 207, 33 Atl. 1045. end of the term. Fox v. Lynch, 71 1084 Schieffelin v. Carpenter, 15 N. J. Eq. 537, 64 Atl. 439. 782 PHYSICAL CONDITIONS. § 118 can be repaired or of one which cannot be repaired, it being con- sidered that an injury of the latter class necessarily involves a breach of the covenant and consequently gives an immediate right of action, while, in the case of an injury of the former class, the tenant might repair before the end of the term.^""* e. Extinction of liability. The right of action for breach of a covenant of this character is not extinguished by the lessee's dispossession by summary proceedings after the end of the term,i<'66 noj.^ it seems, by the lessor's acceptance of the pos- session from him at that time.^''®'^ A covenant by the lessee, in connection with an express per- mission to him to make alterations in the premises, to restore the premises to their former condition at the expiration of the term, "'if required by the lessor," requires him so to restore the prem- ises although he is not notified by the lessor to do so till after the expiration of the term, provided such notice is given him within a reasonable time.^"** The right of action for breach of a covenant of this character, it has been held, is not waived by the making of another lease to the same lessee, at the expiration of the original term, the same covenant being contained in both leases, and the question of the breach of the covenant is to be determined by the condition of the premises at the end of the second term.^"*® An action on a covenant of this character has been regarded as so distinct in its nature from one in tort for the landlord's neg- ligence in injuring the premises that it is not barred by a judg- ment for the defendant in the latter class of action.^"'" In one jurisdiction it has been decided that a covenant in the instrument of lease to return the premises in good condition at the end of the term has no application in case there was a surren- 1065 Sheppard's Touchstone, 173; loes Reed v. Harrison, 196 Pa. 337, Fratt V. Hunt, 108 Cal. 288, 41 Pac. 46 Atl. 415 (notice three weeks after 12; Gulf, C. & S. F. R. Co. v. Sette- end of term is in reasonahle time), gast, 79 Tex. 256, 15 S. W. 228 (sem- See, also, Lazarus v. Ludwig, 45 App. hie) ; Knutsen v. Cinque, 113 App. Div. 486, 61 N. Y. Supp. 365. Div. 677, 99 N. Y. Supp. 911. io69 McGregor v. Board of Educa- 1066 Vernon v. Brown, 40 App. Div. tion, 107 N. Y. 51, 14 N. B. 420. 204, 58 N. Y. Supp. 11. io7o Priest v. Foster, 69 Vt. 417, 38 1067 McGregor v. Board of Educa- Atl. 78. tion, 107 N. Y. 511, 14 N. E. 420. § 118 TENANT'S OBXrOATIONS TOWARDS LANDLORD. 783 der before the end of the term/*''! while in another jurisdiction a different view has been taken.^''''^ f. Effect of assignment. A covenant to deliver up in repair, or in a certain condition, like one to keep in repair, runs with the land, and the benefit or obligation thereof passes upon a transfer of the reversion or of the leasehold.^''''^ g. Measure of damages. The measure of damages for breach of a covenant by the lessee to leave in repair or in the same condition as at the time of the demise is, at least as a gen- eral rule, the reasonable cost of putting the premises in the re- quired condition.!"^* It is immaterial in this regard that, owing to a contract made with a third person as to the subsequent dis- position of the premises, or for some other reason, the actual value of the property to the landlord is not diminished by the lack of repair.i"''^ It has been decided that the tenant is not, in ascertaining the damages, to be allowed for the increased value 1071 Reed V. Snowhill, 51 N. J. term, the right of action for a breach Law, 162, 16 Atl. 679, rvg. Snowhill of the covenant is not in the execu- V. Reed, 49 N. J. Law, 292, 10 Atl. tor but in the person succeeding to 737, 60 Am. Rep. 615. the reversion. Palmer v. Brooklyn, 1072 Marshall v. Rugg, 6 Wyo. 270, 28 N. Y. St. Rep. 139, 8 N. Y. Supp. 6. 44 Pac. 700 45 Pac. 486, 33 L. R. A. A covenant to remove all rubbish 679. at the end of the term runs with the A covenant to leave the premises land. Coppinger v. Armstrong, 5 "fallowed and plowed" was held to 111. App. (5 Bradw.) 637. apply when possession was relin- 1074 joyner v. Weeks [1891] 2 Q. B. quished to the lessee under a provi- 31; Watriss v. Cambridge First Nat. sion authorizing a "surrender" on Bank, 130 Mass. 343; Willoughby v. notice by him. Austin v. Moyle, Atkinson Furnishing Co., 93 Me. Noy, 118. 185, 44 Atl. 612; Darlington v. De- io73Martyn v. Clue, IS Q. B. 661; wald, 194 Pa. 305, 45 Atl. 57; Burke Martyn v. Williams, 1 Hurl. & N. v. Pierce, 27 C. C. A. 462, 83 Fed. 95. 817; Pollard v. Shaaffer, 1 Dall. 1075 joyner v. Weeks [1891] 2 Q. (Pa.) 210, 1 Am. Dec. 239; Scheldt v. B. 31; Henderson v. Thorn [1893] 2 Belz, 4 111. App. (4 Bradw.) 431; Q. B. 164; Morgan v. Hardy, 17 Q. Peck V. Christman, 94 111. App. 435; B. Div. 770; Rawlings v. Morgan, 18 Shelby v. Hearne, 14 Tenn. (6 Yerg.) C. B. (N. S.) 776. But that the 512; Lehmaier v. Jones, 100 App. measure of damages is the decrease Div. 495, 91 N. Y. Supp. 687. But in the value of the premises by reason the covenant does not run after of the failure to comply with the cov- breach. Shelby v. Hearne, 14 Tenn. enant, see Daggett v. Webb, 30 Tex. (6 Yerg.) 512. Civ. App. 415, 70 S. W. 457. If the covenantee dies during the 784 PHYSICAL CONDITIONS. § 119 of the premises by reason of the substitution of old for new ma- terials.io''® § 119. Agricultural land. a. Mode of cultivation — (1) Implied obligation. A tenant of agrictiltural land is under an obligation to cultivate it in a husbandlike manner according to ' ' the custom of the coun- try "i 077 rpjj-g obligation seems to be in legal effect an implied agreement; annexed to the leaseji^'^ on which, under the common- law procedure, assumpsit will lie.^"''^ The custom of the country in this connection, like other cus- toms, must be reasonable in character.i''^'' It need not have ex- isted from "time immemorial," but it is sufficient that it has existed a reasonable time,^"^^ and that it is generally applicable to farms of a similar description.' "^^ The custom must be cer- tain, but need not be absolutely uniform, and so it was held that there was a breach of such a custom when the tenant tilled 1076 Burke v. Pierce, 27 C. C. A. 462, 83 Fed. 95. See Watriss v. Cambridge First Nat. Bank, 130 Mass. 343. 1077 Powley V. Walker, 5 Term R. 373; Legh v. Hewitt, 4 East, 154; Hutton V. Warren, 1 Mees. & W. 466; Clarke v. Roystone, 13 Mees. & W. 752; Walker v. Tucker, 70 111. 527; Chapel V. Hull, 60 Mich. 167, 26 N. W. 874; Lewis v. Jones, 17 Pa. 267, 55 Am. Dec. 550; Jones v. White- head, 4 Clark (Pa.) 330; Tuttle v. Langley, 68 N. H. 464, 39 Atl. 488. In Windon v. Stewart, 43 W. Va. 711, 28 S. E. 776, it is said that a tenant must "remove and keep down filth, such as elders, briers and like growths, growing on farming and grazing lands." loTsWestropp v. Blligott, L. R. 9 App. Cas. 815, 823; Smith, Landl. & Ten. (3d Ed.) 308. In Richards v. Torbert, 3 Houst. (Del.) 172, it is decided that ill husbandry by a tenant in dower, as by planting Indian corn for two or three successive years, is not waste, and it is implied that it is not a violation of any obligation on -the part of the tenant. In the earlier case of Wilds v. Laytcn, 1 Del. Ch. 226, 12 Am. Dec. 91, it is decided that such planting, contrary to the established rotation of crops on the land and to local usage, by a tenant under a writ of elegit, was waste. In Byrkett v. Gardner, 35 Wash. 668, 77 Pac. 1048, it was held that a fail- ure to farm the land in a good and husbandlike manner was not waste within the statute authorizing for- feiture for waste. 1079 See cases cited in note 1077, supra. 1080 Tyson v. Smith, 9 Adol. & B. 406, per Tindal, C. J. 1081 Tucker v. Linger, 21 Ch. Dir. 18, per Jessel, M. R., afd. 8 App. Cas. 508. io82Dalby v. Hirst, 1 Brod. & B. 224. § 119 TENANT'S OBLIGATIONS TOWARDS LANDLORD. 735 half of the farm, no other farmers in this neighborhood tilling more than a third, though some tilled less than a third.^**** A custom peculiar to the particular premises demised, or to a par- ticular estate of which such premises are a part, is not a custom of the country within the rule.^"^* The failure of a tenant to properly care for an orchard con- stituting the premises leased has been held to be ground for can- cellation of the lease by a court of equity, to prevent further waste and destruction.ioss Jq another case it is asserted that for bad husbandry the remedy is by suit and not by confiscation of the tenant's rights under the lease, such as that to away go- ing crops."^® It is not clear upon what principle the tenant's property rights under the lease can be divested for imj)roper cultivation, unless it be regarded as waste within a statute pro- viding for forfeiture for waste.*'*^'' (2) Express obligation. An express covenant by the ten- ant as to the mode of cultivation overrides the implied covenant, if clearly inconsistent therewith.^"** Such express covenants may, it is obvious, assume a variety of forms.*"*^ Occasionally an express covenant merely requires the tenant to do what he would, it seems, be bound to do apart from such covenant, that 1083 Legh V. Hewitt, 4 East, 154. "to clover each year" involves no ob- 1084 -Womersly v. Dally, 26 Law J. ligation on the tenant to insure a Bxch. 219. crop in spite of adverse weather. 108B Anderson v. Hammon, 19 Or. Walters v. Hutchins, 29 Ind. 136. - 446, 24 Pac. 228, 20 Am. St. Rep. A covenant in a lease of a fruit 832. orchard to keep the premises free 1086 Clark V. Harvey, 54 Pa. 142. from undergrowth, except squash 1087 But see Byrkett v. Gardner, and pumpkins, was held not to bei 35 Wash. 668, 77 Pac. 1048, ante, note broken by the planting of other veg- 1078. etables on a small part of the land 1088 Senior v. Armytage, Holt, N. without objection from the lessor. P. 197; Tucker v. Linger, 8 App. Gas. Randol v. Scott, 110 Gal. 590, 42 Pac. 508. See Auginbaugh v. Coppen- 976. heffer, 55 Pa. 347. As to the measure of damages for 1089 See Fleming v. Snook, 5 Beav. breach of the lessee's covenant to 250; Newson v. Smythies, 1 Fost. & keep the premises free from brush F. 477; Hunter v. Miller, 9 Law T. and burrs, see Brown Land Co. v. (N. S.) 159; Manly v. Pearson, 1 N. Lehman, 134 Iowa, 712, 112 N. W. J. Law (Coxe) 377. 185. A covenant to "seed" certain land L. and Ten. 50. 786 PHYSICAL CONDITIONS. §119 is, to cultivate the land in a husbandlike manner.^"^" A cove- nant as to the mode of cultivation runs vi^ith the land.i*>8i b. Removal of hay and straw. "Whether, apart from ex- press covenant, the tenant has a right to remove hay or straw from the premises, involves merely the question whether, as a matter of fact, such removal is, by the custom of the country, bad husbandry .1°^ 2 Occasionally there is an express stipulation in this regard.i''^^ It has been decided that the removal of the hay or straw under a levy made by the tenant's creditors, without the tenant's consent, does not involve, a violation of such a stip- ulation.1094-1096 c. Eemoval of manure, The courts of this country have ordinarily regarded it as a matter of public policy, in order to prevent the deterioration of land, that manure made upon land 1090 Auginbaugh v. Coppenheffer, 1092 Tuttle v. Langley, 68 N. H. 464, 55 Pa. 347; Reynolds v. Chynoweth, 39 Atl. 488; Wing v. Gray, 36 Vt. 261. 68 Vt. 104, 34 Atl. 36; Buck v. Pike; The Delaware statute (Rev. Code 27 Vt. 529; Hubble v. Cole, 85 Va. 87, 1893, p. 876) provides that if any 7 S. E. 242. person shall carry from the demised A covenant to "cultivate and man- premises, of the quantity of five age the farm leased in a good, prop- acres or more, any hay (other than er and husbandlike manner, accord- salt hay), straw, cornhusks or ma- ing to the best rules of husbandry nure, without the consent of the own- practiced in the neighborhood," is er of the premises, he shall forfeit not broken by use of the arable land double the value of such hay, etc. for a market garden and the erec- In Fobes v. Shattuck, 22 Barb. (N. tiou of hothouses, other farms in Y.) 568, it was said that wheat straw the neighborhood having been con- belongs to those who own the crop, verted to such use. Meux v. Cobley and not to the landlord. In the ab [1892] 2 Ch. 253. sence of stipulation or custom to the A covenant to take such care of contrary, the premises "as a careful and pru- i»93 See Gale v. Bates, 3 Hurl. & C. dent farmer should of his own prop- 84; Massey v. Goodall, 17 Q. B. 310; erty" is broken by pasturing meadow Smith v. Chance, 2 Barn. & Aid. with sheep to such an extent as to 753; Richards v. Bluck, 6 C. B. 437; injure it, and the question whether Lowndes v. Fountain, 11 Exch. this was done and whether allowing 487; Clarke v. Westrope, 18 C. B. Canada thistles to grow and go to 765; Fielden v. Tattersall, 7 Law T. seed was a breach of such covenant 718; Legh v, Lillie, 6 Hurl. & N. (N. was one for the jury. McBride v. S.) 165. Daniels, 92 Pa. 332. 1094-1096 SmiUi v. Putman, 20 Mass, 1091 Cockson V. Cock, Cro. Jac. 125; (3 Pick.) 221, 4 Am. Dec. 122. Gordon v. George, 12 Ind. 408. § 119 TENANT'S OBLIGATIONS TOWARDS LANDLORD. 787 as a result of feeding to stock part of the crops raised on the land should not be removed therefrom,i''9'' and it is in accordance with this view that it has been decided that a tenant holding under a demise cannot remove manure so made, though made during his tenancy and from his own crops.^*"* In only two states, apparently, has a different view been taken.^"** Some- times it has been decided that such a removal is waste and reme- diable as such,!^'"' while sometimes the removal of the manure seems to be regarded rather as a breach of the tenant's implied contract, discussed above, to cultivate the land in a husbandlike manner .ii"! The question of the tenant's right to remove the manure is independent of whether it has been collected in heaps or is scattered over the land.i^"^ It may, however, be controlled by custom or agreement.*^"^ In England it is, it seems, usually, 1097 See 1 Tiffany, Real Prop. § 243. looo In North Carolina it has heep 1098 Middlebrook v. Corwin, 15 decided that there is no such obli- Wend. (N. Y.) 169; Daniels v. Pond, gation on the tenant to leave manure 38 Mass. (21 Pick.) 371, 32 Am. Dec. on the premises (Smithwick v. Blli- 269; Sawyer v. Twiss, 26 N. H. 345; son, 24 N. C. [2 Ired. Law] 326, 38 Perry v. Carr, 44 N. H. 118, 82 Am. Am. Dec. 697); and in Maine, that Dec. 191; Gallagher v. Shipley, 24 the tenant is bound to leave only Md. 418, 87 Am. Dec. 611; Lewis v. the manure made by him the last Jones, 17 Pa. 262, 55 Am. Dec. 550; year of his tenancy, on the theory Wetherbee V. Ellison, 19 Vt. 379; that he himself is the person who Elting v. Palen, 60 Hun, 306, 14 N. Y. suffers by reason of the removal of Supp. 607; Brigham v. Overstreet, that previously made (Staples v. 128 Ga. 447, 57 S. E. 484, 10 L. R. A. Emery, 7 Me. [7 Greenl.] 201). (N. S.) 452. 1100 Daniels v. Pond, 38 Mass. (21 Virginia Code 1904, § 2779, pro- Pick.) 367, 32 Am. Dec. 269; Perry vides that if tenant at will or for v. Carr, 44 N. H. 118, 82 Am. Dec. years, without a special license, re- 191. move, by sale or otherwise, from the "oi Sawyer v. Twiss, 26 N. H. 345; leased premises, manure made there- Hill v. De Rochemont, 48 N. H. 87. on in the ordinary course of hus- noz See Strong v. Doyle, 110 Mass. bandry, consisting of ashes leached 92; Lassell v. Reed, 6 Me. (6 Greenl.) or unleached, collections from the 222, 19 Am. Dec. 211; Sawyer v, stables, barnyard, cattle pens or Twiss, 26 N. H. 345; Goodrich v. other places on the leased premises, Jones, 2 Hill (N. Y.) 142; Wetherbee or composts formed by an admixture v. Ellison, 19 Vt. 379. of these or any of them with the soil i^s Fletcher v. Herring, 112 Mass. or other substances, such removal 382; Middlebrook v. Corwin. 15 shall be deemed waste. And see Dela- Wend. (N. Y.) 169; Hill v. De ware Rev. Code 1893, p. 876, ante, Rochemont, 48 N. H. 87. note 1092. 788 PHYSICAL CONDITIONS. 1 19 if not always, so controlled, it coming, in the absence of express agreement, within the scope of the implied agreement to cultivate according to the custom of the country.""* The principle of public policy on which is based the rule for- bidding the removal of manure produced by the crops raised on the land has no application to manure otherwise produced, as wlign the stock is fed with materials raised elsewhere.^i"'' In case the manure thus made from produce raised off the premises is mingled with that made from crops raised on the premises, the tenant will, according to occasional decisions, lose the right to remove any portion,"''^ -while by others he may remove such por- tion of the common mass as may represent that made from prod- uce raised off the premises. ^i*'' The rule does not apply, it is furthermore stalfeeB, in the case of land not leased for agricultural purposes,i^2.^'^r except in case of a "farming lease, """^ or to manure madp^»|R any manner not connected with agriculture or in a course of |iu§bandry;""i* but it has been decided that a milk farm is a f arpi, jised for agri- ' cultural purposes within the rule.^^^^ • f A tenant removing manure made from crops grown on the premises has been held liable as for conversion,^*^* and also in 1104 See Webb v. Plummer, 2 Barn. Pickering v. Moore, 67 N. H. 533, 32 & Aid. 746; Roberts v. Barker, 1 Atl. 828, 31 L. R. A. 698, 68 Am. St. Cromp. & M. 808; Hindle v. Pollitt, Rep. 695. 6 Mees. & W. 529; Gough v. Howard, nos Lewis v. Jones, 1.7 Pa. 267, 55 Peake, Add. Cas. 197. Am. Dec. 550; Needham v. Allison, uoBNeedham v. Allison, 24 N. H. 24 N. H. 355. -Atf^ see Corey v. 355; Daniels v. Pond, 38 Mass. (21 Bishop, 48 N. H. 146;" Roberts v. Pick.) 367, 32 Am. Dec. 269; Corey Jones, 71 S. C. 404, 51 s: E. 240, 2 V. Bishop, 48 N. H. 146; Pickering v. L. R. A. (N. S.) 640. Moore, 67 N. H. 533, 32 Atl. 828, 31 1109 Gallagher' v. Shipley, 24 Md. L. R. A. 698, 68 Am. St. Rep. 695; 41^, 87 Am. Dec. 611. Gallagher v. Shipley, 24 Md. 418, 87 mo Daniels v. Pond, 38 Mass. (21 Am. Dec. 611; Lewis v. Jones, 17 Pa. Pick.) 367, 32 Ajn. Dec. 269. 267, 55 Am. Dec. 550; Plumer v. im Bonnell v. Allen, 53 Ind. 130; Plumer, 30 N. H. 558; Carroll v. New- Wain v. O'Conner, B Clark (Pa.) 164, ton, 17 How. Pr. (N. Y.) 189. 9 Leg. Int. 67. See Middlebrook v. iiofl Lewis V. Jones, 17 Pa. 267, 55 Corwin, 15 Wend. (^. Y.) 169. Am. Dec. 550; Bonnell v. Allen, 53 1112 Plumer v. Piiimer, 30 N. H. Ind. 130. 558; Corey v. Bishop, 48 N. H. 146. HOT Nason v. Tobey, 182 Mass. 314, And see Brown v. Magorty, 156 Maas. 65 N. E. 389, 94 Am. St. Rep. 659; 209, 30 N. E. 1021. § 120 LANDI^ORD'S OBLIGATIONS TOWARDS THIRD PERSONS. 789 an action of trespass on the case.^i^^ An action of trespass qiuj/re clausum fregit may, it has been decided, be maintained against a tenant at will wrongfully removing the manure, on the theory that such removal constitutes waste.m* And tr^pass de bonis asportatis has been sustained against a purchaser of the manure from the tenant who removed it.^' Occasionally the liability in damages of the tenant in such case has been recognized, without any specification of the particular form of action.' ^^^ An injunc- tion will issue, in a proper case, to restrain the removal of the manure.^^^'' IV. Tenant's Obligations Towards Third Persons. § 120. To persons on the premises. The liability of the tenant for injuries to third persons caused by defects- or dajigerous conditions existing in connection with the premises is that of any occupant of land. He is, as regards persons who may come on the premises by his express or implied invitation, bound to exercise reasonable diligence to prevent in- jury to such persons,!'^* while as to "mere licensees" or tres- passers, he is, apparently, bound only to refrain from, such acts as indicate a reckless indifference to their safety.'^*^ As regards parts of a building not included in a lease, such as 1113 Middlebrook v. Corwin, 15 65 III. 160; Newall v. Bartlett, 114 Wend. (N. Y.) 169. N. Y. 399, 21 N. B. 105; Mellen v. 1114 Daniels v'. Ppnd, 38 Mass. (21 Merrill, 126 Mass. 545, 30 Am. Rep. Pick.) 367,-32 Am. Dec. 269; Perry 695; Harris v. Perry, 89 N. Y. 308; V. Carr, 44 N. H. 118, 82 Am. Dec. Welch v. McAllister, 15 Mo. App. 191. 492; Shindelbeck v. Moon, 32 Ohio 1115 Daniels v. Pond, 38 Mass. (21 St. 264, 30 Am. Rep. .^84; Ward v. Pick.) 367, 32 Am. Dec. 269. Hinkleman, 37 Wash. 375, 79 Pac. 1116 Brown v. Magorty, 156 Mass. 956. 209, 30 N. E. 1021; Liewis v. Jones, The tenant is not liable in the 17 Pa. 262, 55 Am. Dec. 550; Hunt absence of negligence. Dyer v. Rob- v. Scott, 3 Pa. -Co.- Ct. R. 411. In inson, 110 Fed. 99, 54 L. R. A. 708; Hill V. De Rochemont, 48 N. H. 87, Reilly v. Shannon, 180 Pa. 513, 37 the action was one of "trespass." Atl. 95; Harris v. Perry, 89 N. Y. ""Bonnell v. Allen, 53 Ind. 130; 308; Speckman v. Boehm, 36 App. Biting V. Palen, 60 Hun, 306, 14 N. DIv. 262, 56 N. Y. Supp. 758. Y. Supp. 607; Barrington v. Justice, ma 2 Shearman & Rertfleld, Neg. 2 Clark, 501, 4 Pa. Law J. 289. §§ 704-706; Pollock, Torts (6th Ed.) 1118 City of Chicago v. O'Brennan, 503 ; Burdick, Torts, 456. 790 PHYSICAL CONDITIONS. § 12] approaches used in common by the various tenants of a building, the landlord is the person on whom rests the duty of keeping? them in a reasonably ^afe condition, and not the tenant, and con- sequently the latter is not liable for injuries caused by defects therein." 20 § 121. To persons not on the premises. As regards persons not on the premises, but "strangers," such as the owners or occupants of neighboring property, or persons in the highway, the tenant is liable for any injury resulting from negligence on his part,^!^! or from the creation of a nuisance by him.^i^ia jjj several eases the tenant has been held liable for injuries to a person on the highway by reason of defects in the sidewalk,ii22 ^nd he is liable for failure to exercise diligence in removing snow from the roof of a building on the leased prem- ises, if a person on the highway is injured by a fall of the snow,ii23 irrespective of whether the lessor is also liable.^i^* The question of the tenant's liability for a dangerous or in- jurious condition, not created by him, buf created by his lessor, and allowed by him, the lessee, to remain, has been the subject of but few decisions, and in those it has usually been regarded as determinable by the same considerations as govern the liability 1120 Andrus v. Bradley-Alderson except in the case of the creation or Co., 117 Mo. App. 322, 93 S. W. 872. maintenance of a nuisance by him. 1121 Tarry v. Ashton, 1 Q. B. Div. iiaia See post, § 124. 314; De Tarr v. Ferd. Heim Brew. "22 City of Lowell v. Spaulding, 5? Co., 62 Kan. 18S, 61 Pac. 689; Odell Mass. (4 Cush.) 277, 50 Am. Dec. V. Solomon, 99 N. Y. 635, 1 N. E. 408; 775; Buesching v. St. Louis Gaslight Hirschfield v. Alsberg, 47 Misc. 141, Co., 73 Mo. 219, 39 Am. Rep. 503; 93 N. Y. Supp. 617; Lee v. McLaugh- Irvine v. Wood, 51 N. Y. 224, 10 Am. lin, 86 Me. 410, 30 Atl. 65, 26 L. R. Rep. 603; Jennings v. Van Schaick, A. 197; Harris v. Cohen, 50 Mich. 108 N. Y. 530, 15 N. B. 424, 2 Am. 324, 15 N. W. 493; Marshall v. Heard, St. Rep. 459; Stewart v. Putnam, 127 59 Tex. 266. But see Organ v. City Mass. 403; Bears v. Ambler, 9 Pa. of Toronto, 24 Ont. 318. 193, 49 Am. Dec. 503; City of Chl- The tenant is not liable apart from cago v. G'Brennan, 65 111. 160; Lind- negligence (Fehlhaur v. St. Louis, strom- v. Pennsylvania Co. for Ins., 178 Mo. 635, 77 S. W. 843; McCord 212 Pa. 391, 61 Atl. 940. Rubber Co. v. St. Joseph Water Co., 1123 Atwill v. Blatz, 118 Wis. 226, 181 Mo. 678, 81 S. W. 189; Odell v. 95 N. W. 99. Solomon, 99 N. Y. 635, 1 N. B. 408, "24 See ante, § 103 c. and see cases cited post, note 1135) § 121 TENANT'S (JBLIGATIONS TOWARDS THIRD PERSONS. 791 of a grantee in fee of premises on which there exists a nuisance at the time of the grant. Accordingly it has been held that the lessee is not liable for the existence of the particular condition until he has been either notified by the person injured thereby to remove it,^!^^ or, at least, following the rule adopted in some states as to the liability of a grantee in fee, until he has in some other manner acquired knowledge of such condition.^i^® In some jurisdictions, it seems, the lessee is liable if the condition causing the injury can be regarded as constituting a public nuisance, without regard to whether he has notice tliereof."^! While the liability of a tenant for years in this regard is usually assimilated to that of a grantee in fee, it has been as- serted that the lessee is not liable if he merely maintains and uses a structure on the premises which constitutes a nuisance, without himself doing anything which changes the condition or which makes it more injurious, for the reason that by removing such a structure the lessee would render himself liable for waste to his landlord.1128 Such a view seems open to question. Even conceding that an alteration in the structure, necessary to avoid injury to third persons, would be regarded as waste, making the lessee liable in damages, that seems no reason for exempting the "25 McDonough v. Gilman, 85 In McPartliand v. Thomas, 24 N. Mass. (3 Allen) 264, 80 Am. Dec. 72; Y. St. Rep. 110, 4 N. Y. Supp. 100, Western & A. R. Co. v. Cox, 93 Ga. a lessee of the first floor of a bulld- 561, 20 S. E. 68; Slight v. Gutzlaft, ing was held liable for the fall of 35 Wis. 675, 17 Am. Rep. 476. an awning erected by the lessor As to the liability of a grantee In without permission from the city fee for the continuance of a nui- authorities, this constituting a nui- sance on the premises, see 86 Am. St. sance, the benefit of which was shar- Rep. 508, note to Leahan v. Cochran; ed by the lessee. 21 Eng. & Am. Enc. Law (2d Ed.) 112s Meyer v. Harris, 61 N. J. Law, 720. 83, 38 Atl. 690. Kearney v. Central 1126 Dickson v. Chicago, R. I. & R. Co., 167 Pa. 362, 31 Atl. 637, is ap- P. R. Co., 71 Mo. 575 ; Timlin v. parently to the same eif ect. And see Standard Oil Co., 126 N. Y. 514, 27 dictum in Knauss v. Brua, 107 Pa. N. E. 786, 22 Am. St. Rep. 845. 88. In Meyer v. Harris, 61 N. J. 1127 Leahan v. Cochran, 178 Mass. Law, 83, 38 Atl. 690 supra, however, 566, 60 N. E. 382, 53 L. R. A. 891, 86 it was held that a lessee for 999 Am. St. Rep. 506; Vaughn v. Buffalo, years was a grantee in fee for the R. & P. R. Co., 72 Hun, 471, 25 N. Y. purposes of the imposition of liaWl- Supp. 246; Keeler v. Lederer Realty ity on him. Corp., 26 R. I. 524, 59 Atl. 855. 792 PHYSICAL CONDITIONS. § 121 lessee from liability for injuries to a third person. The case might be different if a court of equity were actually to enjoin the making of such an alteration, but this the court would not be apt to do. And that one should be relieved of a duty of dili- gence towards one person by the fact that he would, by exer- cising such diligence, subject himself to a liability in damages to another person, seems most doubtful.i^^g if the lessee's use of the premises in the condition in which they were at the time of the lease contributes in any degree to the injury, it seems clear that he should not be allowed to assert that a change of that condition would involve him in liability for waste, since he could avoid the causing of the injury by refraining from the use of the premises. There are to be found occasional statements to the effect that the lessee's possible liability for waste does not justify him in continuing the condition which causes the injury.^'*"' So far as the condition of the premises which causes injury to a third person is a nuisance, in the strict sense of the term, it seems proper to assimilate the liability of one who accepts a lease with such condition in existence to that of one who accepts a conveyance in fee. So far, however, as this condition of the premises is not one which itself causes injury to neighboring property or to the public, but merely results eventually in some casualty which injures the person or property of another, the ten- 1120 In Meyer v. Harris, 61 N. J. lessee to abate the nuisance, and Law, 83, 38 Atl. 690, supra, it is said that in case it were that therefore an that "the law does not impose upon action would not lie against him for any one the duty of performing an the continuance of It. In City of act for the benefit of one person Boston v. Worthington, 76 Mass. (10 which will necessarily subject him Gray) 496, 71 Am. Dec. 678, where a to liability at the hands of another." pedestrian sought to recover injuries No authorities are cited for this caused by his fall Into an open cellar proposition. Can one contract not way. It was decided that a covenant to put repairs on his property and by the lessee that "no alteration or so relieve himself from possible lia- addition shall be made in or on the bility to persons injured by defects premises without the consent of the therein? lessor" did not relieve the lessee 11=0 It is so decided in Brent v. from liability, since in the first Haddon, Cro. Jac. 555. And In Ros- place it did not apply to repairs, well V. Prior, 12 Mod. 640, Holt, C. J., and, in the second place, such a cov- comments adversely on the sugges- enant could not relieve the leasee tlons in Ryppon v. Bowles, Cro. Jac. from liability for a nuisance. 373, that it would be waste in the ^ 121 TENANTS OBEIGATrONS TOWARDS THIRD PERSONS. 793 ant can be held liable, it is conceived, as would be any person in possession and control, on the ground of negligence only.^^** Another tenant of the same landlord, occupying another part of the same building or an adjoining building, is entitled, as any other person, to assert a liability on the tenant's part^^^^ for dangerous or injurious conditions. Accordingly one tenant may recover against another tenant for injuries caused by the latter 's negligence in using or in keeping in repair water appliances under the latter's control."^^ There is no liability on the part of a tenant for conditions on the premises leased to him, resulting in injury to the tenant of another part of the building, in the ab- sence of negligence.i^^^ The fact that the lessor is liable for the injuries caused by a 1131 See ante, § 10'2. N. Y. Supp. 368; Slater v. Adler, 8 1132 Brunswick-Balke Collender Co. Misc. 310, 28 N. Y. Supp. 729; Sim- Y. Rees, 69 Wis. 442, 34 N. W. on-Riegel Cigar Co. v. Gordon-Burn- 732, 2 Am. St. Rep. 748 (storage of ham Battery Co., 20 Misc. 598, 46 N. excessive weight by upper tenant); Y. Supp. 416; Killion v. Power, 51 Shroyer v. Campbell, 31 Ind. App. 83, Pa. 429, 91 Am. Dec. 127. 67 N. E. 193 (offensive odors) ; Stap- 1134 Moore v. Goedel, 34 N. Y. 527; enhorst v. American Mfg. Co., 36 N. Eakin v. Brown, 1 E. D. Smith (N. Y. Super. Ct. (4 Jones & S.) 392 Y.) 36; Simonton v. Loring, 68 Me. (leakage of oil from upper floors); 164, 28 Am. Rep. 29; Sane v. Scagle, Quigley v. H. W. Johns Mfg. Co., 26 67 Vt. 281, 31 Atl. 289; Denton v. App. Div. 434, 50 N. Y. Supp. 98 Kernochan, 37 N. Y. St. Rep. 510, (weakening building by altering 13 N. Y. Supp. 889. See Sheehan & supports); Kent v. Todd, 144 Mass. Co. v. Maison Barberis, 41 Wash. 478, 11 N. E. 734 (leaving open trap 671, 84 Pac. 607. door) ; Cohn v. May, 210 Pa. 615, 60 it is held that negligence on the Atl. 301, 69 L. R. A. 800, 105 Am. St. part of a tenant is prima facie Rep. 840. shown by the fact that water ran 1133 Rosenfield v. Arrol, 44 Minn, from his apartments into those of 395, 46 N. W. 768, 20 Am. St. Rep. another tenant. Simon-Riegel Ci- 584; Cleveland Co-Operative Stove gar Co. v. Gordon Burnham Battery Co.' V. Wheeler, 14 111. App. (14 Co., 20 Misc. 598, 46 N. Y. Supp. Bradw.) 112; Simonton v. Loring, 68 416; Warren v. Kauffman, 2 Phila. Me. 164, 28 Am. Rep. 29; Kahn v. (Pa.) 259, 14 Leg. Int. 108; Greco v. Triest-Rosenberg Cap Co., 139 Cal. Bernheimer, 17 Misc. 592, 40 N. Y. 340, 73 Pac. 164, 96 Am. St. Rep. Supp. 677; Rosenfield v. Arrol, 44 146; Moore v. Goedel, 34 N. Y. 527; Minn. 395, 46 N. W. 768, 20 Am. St. Miller v. Benoit, 164 N. Y. 590, 58 Rep. 584 (semble). See Moore v. N. E. 1090, afg. 29 App. Div. 252, 51 Goedel, 34 N. Y. 527. 794 PHYSICAL CONDITIONS. § 121 condition existing in connection with the premises does not re- lieve the tenant from liability therefor.^i^s The obligation of a tenant to exercise reasonable care to pre- A'ent injuries to third persons by reason of dangerous conditions in connection with the property would ordinarily extend only so far as his control extends, and would not render a tenant of part of a building liable for defects in other parts of the buildings or in the sidewalk in front of the building.' i^o It has been de- cided in one case that a lessee of part only of a building may, by covenant with the lessor to keep the sidewalk in proper condi- tion, render himself liable to a pedestrian injured by the unsafe condition of the sidewalk, this constituting a nuisance.'isT The 1135 Leonard v. Decker, 22 Fed. falling into an elevator shaft in a 741; Gordon v. Peltzer, 56 Mo. App. common approach under the control 599; Wunder v. McLean, 134 Pa. of the landlord if the person injured 334, 19 Atl. 749, 19 Am. St. Rep. was on his way to that part so leased 702; Joyce v. Martin, 15 R. I. 558, by invitation of the lessee, hut that 10 Atl. 620, 2 Am. St. Rep. 925; a lessee of another part, with whom Irvine v. "Wood, 51 N. Y. 224; the person injured had no such re- Brunswick-Balke CoUender Co. v. lation was not liable. If the ap- Rees, 69 Wis. 442, 34 N. W. 732, 2 proach was under the control of the Am. St. Rep. 748; Keeler v. Lederer landlord, it is not apparent why the Realty Corp., 26 R. I. 524, 59 Atl. lessee would be liable for defects 855. therein. There is a suggestion that So the tenant Is liable for danger- the liability might be for failure to ous openings in the highway which close the door of the elevator shaft, existed at the time of the lease, but it was not shown that this was though the landlord is also liable the neglect of the lessee who was therefor. Mancuso v. Kansas City, held liable rather than of the lessee 74 Mo. App. 138; Buesching v. St. who was held not liable. Louis Gaslight Co., 73 Mo. 219, 39 1137 Wixon v. Bruce, 187 Mass. 232, Am. Rep. 503; Brogan v. Hanan, 55 72 N. E. 978, 68 L. R. A. 248. The App. Div. 92, 66 N. Y. Supp. 1066; decision is in great part based on Irvine v. Wood, 51 N. Y. 224, 10 Am. Quinn v. Crimmings, 171 Mass. 255, Rep. 603. 50 N. E. 624, 42 L. R. A. 101, 68 Am. 1136 Burt V. City of Boston, 122 St. Rep. 420, in which it was decided Mass. 223; Weinberger v. Kratzen- that one on whose land a partition stein, 71 App. Dlv. 155, 75 N. Y. fence stood could free himself from Supp. 537. In Burner v. Higman & liability for injuries to a person Skinner Co., 127 Iowa, 580, 103 N. caused by the fall of the fence by W. 802, it was apparently decided contracting with his adjoining own- that a lessee of part of a build- er for the keeping of the fence in re- ing is liable to one injured by pair, a decision which might, it is § 121 TENANT'S Obligations towards third persons. 795 correctness of this view is, it is submitted, open to serious ques- tion. It was conceded by the court that a "stranger" could not subject himself to such liability by contract with the owner of the building, but it was said that a lessee of a part of the build- ing was not a "stranger." Why a lessee of a part of the build- ing is not a stranger as regards a sidewalk confessedly not within the operation of the lease is not clear. A tenant of another building in the same block, owned by the same landlord, would presum- ably have been regarded as a stranger for the purpose of this distinction, and wherein the position of one is different from that of the other is by no means clear. That the tenant is in one case separated vertically from the sidewalk, and in the other hori- zontally, would seem to be immaterial. That the lessee agreed with the lessor to repair, and that, if he had performed his contract, injuries to a third person would not have occurred, should not, it is conceived, of itself impose on him any liability for such injuries, the lessee 's liability being a matter to be determined solely by the consideration whether he was neg- ligent in failing to repair,!^^* or whether there was a nuisance on the premises.. Nor, on the other hand, it seems, should the fact that the lessor agreed to repair, relieve the lessee or his assignee in possession from liability, as the person in control of the premises, for injuries to a third person caused by a lack of repair.^i^" conceived, tie subjected to consider- 635, 1 N. E. 408; Reynolds v. Van able scrutiny before it would be ac- Buren, 155 N. Y. 120, 49 N. E. 763, cepted in all jurisdictions. 42 L. R. A. 129; Martin v. Washburn, In Leydecker v. Brintnall, 158 23 La. Ann. 427. But in San Filippo Mass. 292, 33 N. E. 399, it was de- v. American Bill Posting Co., 188 N. cided that the lessee of upper rooms Y. 514, 81 N. B. 463, where one had in a building did not have the sole a "formal lease" of a part of the occupancy of the sidewalk, and was roof of a building for the mainte- not bound to keep in repair a part nance of a signboard thereon, the fact of the sidewalk on the lessor's land that he agreed with the tenant of the merely because he covenanted to building to maintain the signboard save the lessor harmless "from any was apparently regarded as a con- claim or damage arising from neg- sideration in imposing liability on lect in not removing snow and ice him to one injured by the fall of from the roof of the building or from the signboard, the sidewalk." ^^s" Leonard v. Decker, 22 Fed. "38 See Odell v. Solomon, 99 N. Y. 741. This is apparently assumed in 796 PHYSICAL CONDITIONS. § 121 A tenant who subleases is not thereafter liable for injuries to a third person as being the person in control of the premises, but his liability is determined with reference to the rules before stated as to the liability of a lessor. And he is not liable for such in- juries by reason of his agreement with his lessor to make re- pairs.ii*" It has been decided in one case that the tenant is liable for injuries caused by the fall of a structure erected by him on the premises, resulting in injuries to a person on the street, though this did not occur until after he had relinquished posses- sion to the landlord.!!*! Though the opinion refers to the rule that the creator of a nuisance is liable therefor, the question of the tenant's liability is discussed as dependent on the question of negligence. The liability of the tenant in such a case may, it is conceived, properly be based on the ground that one is negli- gent in putting out of his control property which he knows, or has reason to know, to be in such a condition as to constitute a menace to persons on the adjacent highway.!!*^ the cases asserting that the lessor Alsberg, 47 Misc. 141, 93 N. Y. Supp. ■who covenants to repair is liable to 617. And see the Massachusetts third persons injured as a result ol cases cited ante, note 1137. a lack of repair, by reason of the ii«> Clancy v. Byrne, 56 N. Y. 129, lessee's right to recover over against 15 Am. Rep. 391. the lessor the amount of the dam- mi Hussey v. Ryan, 6'4 Md. 426, 2 ages for vehich he has been subjected Atl. 729, 54 Am. Rep. 772. It does to liability. See ante, at note 629. not appear whether there was a There are occasional suggestions, technical surrender or a mere re- however, to the contrary, that a cov- llnquishment of possession upon the enant by the lessor to repair would expiration of the term. The opin- relieve the lessee from any liability ion refers to the fact that the ten- to third persons. See Burner v. ant had the right to remove the Higman & Skinner Co., 127 Iowa, structure. 580, 103 N. W. 802; Hirschfield v. ma See ante, § 102. CHAPTER XI. MODE OF UTILIZATION OP PREMISES BY TENANT. § 122. In absence of express covenant. 123. Express covenants. a. General considerations. b. Covenant against any trade. c. Covenant against particular trade. d. Covenant against offensive trade. e. Covenant to use premises for specified purjMJse only. f. Covenant against annoyance or nuisance. g. Covenant as to liquor business. h. Covenant to occupy personally. i. Covenant as to taking supplies from lessor. j. Persons affected by covenant, k. Waiver of covenant. 1. Remedies for breach. 124. User resulting in nuisance. § 122. In absence of express covenant. It would seem that, on principle, apart from statute or express stipulation, the tenant is in no -waj restricted as regards his use of the premises, so long as this does not involve the commission of waste or the maintenance of a nuisance. There are cases asserting that he is so unrestricted,^ and the numerous decisions involving the effect of a restrictive covenant in this regard con- tain no suggestion that he is so restricted apart from express stipulation.^ On the other hand it has been said in one ease that the tenant can use the premises for that purpose only in Supp. 885; Heise v. Pennsylvania R. 1 Taylor v. Finnigan, 189 Mass. Co., 62 Pa. 67. 568, 76 N. E. 203, 2 L. R. A.(N. S.) As to the landlord's mode of using 973; City of New York v. Intcrbor- adjoining premises, see post, § 135. ough Rapid Transit Co., 109 N. Y. 2 See post, § 123. 798 MODE OF UTILIZATION OF PREMISES. § 122 which they are usually employed, to which they are adapted, and for which they were coiistructed,^ a criterion, it may be remarked, which appears somewhat lacking in definiteness. In another case it was decided that the lessee cannot use, or allow others to use, the roof of the building on the leased premises, for the construction of extensive advertising boards, which might be- come a "serious nuisance" and subject the landlord to expensive litigation * There is also to be found a dictum that a landlord might enjoin the use of premises as a bawdy house, as not being within the contemplation of the parties,^ and in one case it was held that where a lessee of premises, using them as a drugstore, agreed to sublet them for use as a liquor store, and, knowing that the landlord would not consent to such use, obtained a renewal without disclosing the intended use, equity would re- strain such use of the premises on the ground of fraud.^ Like- wise there is a decision apparently to the effect that the lessor is liable in damages if, by reason of his use of the premises for the storage of inflammable materials, when the lease was made for the purpose of storing other materials, it was impossible to prevent the destruction of the building by the spread of fire from adjoining property.'^ Occasionally the purpose for which the premises are used by the tenant might materially detract from their value, though not effecting such an alteration in the premises as to be visible to ordinary observation, and consequently not to fall within the ordinary conception of waste. Such, for instance, would be the case were the tenant to use a house on the premises as a hospital for infectious diseases, and there is one decision apparently ad- verse to his right to make such use.^ But if the premises are 3 Nave V. Berry, 22 Ala. 382. In onxthe premises merely because she this case it was deoidecl that the had formerly been of disreputable lessee could use for a seminary a character, building erected for use as a hotel. e Parkman's Adm'r v. Aicardi, 34 * O. J. Gude Co. V. Parley, 28 Misc. Ala. 393, 73 Am. Dec. 457. 184, 58 N. Y. Supp. 1036. As to the ^ Anderson v. Miller, 96 Tenn. 35, right to erect signs, see post, § 138. 33 S. W. 615, 31 L. R. A. 604, 54 Am. 5 Miles V. Lauraine. 99 Ga. 402, 27 St. Rep. 812. S. B. 739. In this case it was de- s Hersey v. Chapin, 162 Mass. 176, cided that the landlord could not 38 N. E. 442, Where it was decided obtain an injunction to prevent the that a tenant at will could not tenant from bringing his wife to live authorize such use by a board of § 122 IN ABSENCE OF COVENANT. 799 expressly leased for that purpose, the tenant has, it is evident, a right, as against his immediate landlord, to so use them.* Per- haps such a use might properly be regarded as involving the commission of waste in so far as it effects, or is calculated to effect, a physical alteration in the premises by the introduction of germs of disease, v^hile not vpaste, nor a ground for the im- position of any liability, in so far as it merely creates a prejudice against the premises among possible future occupants, unless, of course, there is an express stipulation against a use of that char- acter. Under such a view, the user referred to might be en- joined, but would presumably subject the tenant to liability in damages only to the extent of the cost of a thorough disinfec- tion of the premises, while for permanent diminution in rental value by reason of the odium which attaches to premises onde so used, the landlord would be without remedy, as he would be for any other use of the premises, not physically injuring them, against which he neglected to guard by express stipulation. In no case, however, has any such distinction in this regard been suggested. In the absence of an express stipulation to the contrary, there is no obligation upon a lessee to personally hold possession, and he may assign or sublet to another,^" and he may license others to come on the premises for particular purposes.^i So, it would seem clear, the lessee has a right, if he so chooses, to leave the premises vacant, provided there is no stipulation to the con- trary,i2 ^nd provided, further, this does not result in injury to the premises. In two or three cases, however, expressions are used suggesting the existence of an obligation upon the tenant to enter on the premises, his failure so to do being I'eferred to as a "breach" of his contract.i^ In these cases, however, the de- health, and that consequently the 12 See Moore v. Guardian Trust board was liable for the consequent Co., 173 Mo. 218, 73 S. W. 143. loss in value of the premises. '' See Tully v. Dunn, 42 Ala. 262; 9 In Lovett v. United States, 9 Ct. ^Uva v. Bair, 141 Cal. 599, 75 Pac. „, .„„ ., J -J J ii, J. ■, ^ 162; Segal v. Ensler, 16 Misc. 43, 37 CI. 479, It was decided that if prem- ,, ' „ „„, , .^ , ^, N. Y. Supp. 694; James v. Kibler's Ises are leased for a hospital, they ^^^.^^ g^ ^^ ^^^^ 26 S. E. 417. In may be used as a smallpox hospital, ^j^j.,^ ^ ^lark, 49 Cal. 586, it is said 10 See post, chapter XV. t^at occupation by an agent is suffi- 11 See Perry v. Bailey, 94 Me. 50, cient, the court apparently thinking 46 Atl. 789. that some occupation is necessary. 800 MODE OF UTILIZATION OF PREMISES. § 123 fault by the tenant which involved a liability upon his part was, it is conceived, not in his failure to enter, but in his failure to pay rent, and the failure to enter was important only as showing, with other circumstances, an intention not to pay any of the install- ments of rent which might subsequently accrue. In a number of states the use of the premises by the tenant for an illegal purpose is by statute a cause of forfeiture." It does not appear that, apart from such a statute, the landlord has a right to object to the tenant's use of the premises because it is for an illegal purpose, though he could ordinarily prevent a con- tinuance of such use by instigating a criminal prosecution of the tenant. § 123. Express covenants. a. General considerations. Quite frequently the instrument of lease contains a covenant by the lessee to use the premises for certain purposes only, or not to use them for certain purposes. If the lease is for a year or more, a stipulation as to the use should, it would seem, be evidenced by writing as a contract not to be performed within a year, and it has been in effect so decided,*^ though in another state a different view was adopted.!^ A cove- nant of this character has been given effect when it was not in terms made by the lessee, but he merely agreed to abide by the regulations of the lessor corporation, among which was one re- stricting the mode of using the premises.!^ Such a covenant will, it has been said, be construed in favor of the lessee.^*' ^^ That a particular use was made of the prem- ises at the time of the lease will not except such use, it seems evi- dent, from the operation of the covenant, but in case of doubt as to the meaning of the covenant such use might be considered, along with other circumstances. " See post, § 193 b. entire," a questionable conclusion. 15 Higgins V. Gager, 65 Ark. 604, See ante, § 53 a, note 56. 47 S. W. 848. This case involved le Hall v. Solomon, 61 Conn. 476, the validity of an oral provision 23 Atl. 876, 29 Am. St. Rep. 218. against the use of adjoining prem- i' Round Lake Ass'n v. Kellogg, ises by the lessor, but the principle 47 N. Y. St. Rep. 668, 20 N. Y. Supp. would be the same. The court de- 261; Linwood Park Co. v. Van cided that the invalidity of this oral Dusen, 63 Ohio St. 183, 58 N. B. 576. provision invalidated the lease on is, lo Hawes v. Favor, 161 111. 440, the theory that "the contract was 43 N. B. 1076. § 123 EXPRESS COVENANTS. 801 b. Covenant against any trade. Occasionally the instrument of lease contains a covenant by the lessee not to exercise any trade or any business upon the leased premises. It has been held that the word "trade" in this connection refers to a business involving buying and selling, and that it does not cover the maintenance of a private lunatic asylam.^o The keeping of a school, however, has been regarded as within a covenant against using the premises for "business."-' That what is, so far as con- cerns the use of the premises, a business, is conducted with no purpose of profit, has been held not to take it out of the opera- tion of a covenant against using the premises for a business,^^ and it has been considered that the maintenance of a " home for work- ing girls," at which board and lodging were furnished free, was within the meaning of such a covenant.^^ But a covenant against using the premises for a business is not broken because, inci- dentally to its use for other purposes, business happens to be transacted thereon.^* A covenant not to use the premises for any art, trade, or busi- ness, has been held to apply to the teaching of music. ^^ And one not to affix, or permit any outward mark or show of business to be affixed, on the demised premises, was regarded as broken when the lessee placed on an inside blind, visible from the outside, and on a brass plate outside, the name of a firm carrying on business on the premises.^® A covenant not to ' ' convert ' ' the premises into a shop is broken, it seems, by their use as an office for taking orders for coal, al- though no structural alteration is made.^^' ^^ e. Covenant against particular trade. A covenant not to use the premises for a "coffee house" has been held to prevent per- sons who are dealers in tea, coffee and other groceries from sell- ing refreshments, such as tea, coffee and sandwiches, for the con- venience of customers,29 and a covenant not to exercise the trade 20 Doe d. Wetherell v. Bird, 2 Adol. -'i l^ortman v. Home Hospital & E. 161. Ass'n, 27 Ch. Div. 81, note; Rolls v. 21 Doe d. Bish v. Keeling, 1 Maule Miller, 27 Ch. Div. 71. & S. 95; Kemp v. Sober, 1 Sim. (N. 2= Tritton v. Bankhart, 56 Law T. S.) 517. (N. S.) 306. 22 Bramwell v. Lacy, 10 Ch. Div. 20 Evans v. Davis, 10 Ch. Div. 747. 691; Portman v. Home Hospital 27, 28 See Wilkinson v. Rogers, 2 Ass'n, 27 Ch. Div. 81, note. De Gex, J. & S. 62; 23 Rolls v. Miller, 27 Ch. Div. 71. =» Fitz v. lies [1893] 1 Ch. 77. L. and Ten. 51. 802 MODE OF UTILIZATION OF PREMISES. § 123 of butcher was held to be broken by the sale of raw meat on the premises, though the slaughtering was done elsewhere.*" And a covenant not to sell tobacco or cigars precludes, it seems, their ^ sale in connection with a grocery business.*^ On the other hand it has been decided that a covenant not to carry on a particular trade does not preclude the sale, by a different class of trader, of certain articles which form a part, but by no means the whole, of the prohibited trade.^^ "Whether a particular business is one ' ' similar ' ' to the specified business of another tenant of the same lessor, within a covenant against such similar business, is said to be a question of whether they are so much alike as to compete.*^ d. Covenant against offensive trade. The carrying on of a fried fish business may, it has been decided, violate a covenant against the carrying on of an offensive trade,** and lime burning has been regarded as a "noisome" business within 'a covenant of this character.*" Carrying on a dangerous trade, however, is not a breach of a covenant not to carry on any noisome or offensive trade.*® There is a dictum that such a covenant would be construed with reference to the business carried on upon the premises at the time of the lease, and would not ordinarily be re- garded as extending to such a business.*^ When certain trades are specified which the tenant is not to carry on and the words "or any other noisome or offensive trade," or similar words, are added, such general words will be construed as referring to trades cjitsdem ffeneris with those specified.*^ 30 Doe d. Gaskell v. Spry, 1 Barn, tioners. Lumley v. Metropolitan R. & Aid. 617. Co., 34 Law T. (N. S.) 774. 31 Waldorf-Astoria Segar Co. v. =^ Drew v. Guy [1894] 3 Ch. 25. Salomon, 109 App. Div. 65, 95 N. Y. ^* Devonshire v. Brookshaw, 43 Supp. 1053, afd. 184 N. Y. 584, 77 ^°^- "^- '''''^• N. E. 1197 35 Wiltshire v. Cosslett, 5 Times 32 Stuart V. Diplock, 43 Ch. Div. 343. Law R. 410-. 30 Hickman v. Isaacs, 4 Law T. (N. S.) 285. A covenant not to carry on the 37 Gutteridge v. Munyard, 7 Car. business of a wholesale or retail g p, i29. confectioner Is not broken by the as Doe d, Wetherell v. Bird, 2 Adol. sale, by a grocer, of a particular & E. 161; Jones v. Thome, 1 Barn. sweetmeat usually sold by confec- & C. 715. § 123 EXPRESS COVENANTS. 803 A stipulation that the lessee shall keep the premises clean has been held to be broken by their use as a morgue, and the deposit therein of dead bodies, occasionally in an advanced state of de- composition.39 If there is a covenant not to carry on an offensive trade, it has been decided, the fact that an additional rent is reserved to be paid in case such a trade is carried on does not entitle the tenant, on paying such rent, to carry on such a trade.*" A covenaAnt that the lessees will not make nor allow to be made any unlawful, .improper or offensive use of the premises will not, it has been held, entitle the lessor to stop by injunction the use of the building for the very business for which both the parties expected it to be used, although, incidentally to the busi- ness, a nuisance arises.*^ e. Covenant to us3 premises for specified purpose Dnly. Oc-. casionally there is a covenant to use the premises only for somj specified purpose,*- as for instance for a private residence. A covenant to use the premises for a private residence only is broken by their use for a boarding house,** for a school,** or for the education and lodging of a large number of girls in con- nection with a charitable institution,*^ but not by the holding of an auction sale of the furniture previously used thereon.*^" 39 Clementson v. Gleason, 36 Minn. *3 Hotison v. Tulloch [1898] 1 Cli. 102, 30 N. W. 400. 424; Linwood Park Co. v. Van Dus- *o Weston v. Metropolitan Asylum en, 63 Ohio St. 183, 58 N. E. 576. So Dist 9 Q B Div 404 when it was provided that the prero ises should be used "strictly as a private dwelling, and not for any public or objectionable purpose." « In Heywood v. Berkeley Land & ^^^^^^^ ^ ^ll,reg_ 103 Mass. 372. Town Imp. Ass'n, 71 Cal. 349, 12 g^^ ^ statement that the premises Pac. 232, it was held that a finding .^gre to be held by the lessees for a that there was no breach of a stipu- private residence has been held not laion that the leased premises be to prevent an "additional use" by used in good faith continuously for taking boarders. Chautauqua Assem- the usual and ordinary purpose of Wy v. Ailing, 46 Hun (N. Y.) E82. a ferry was justified, the ferry boat 44Wickenden v. Webster, 6 Bl. & having failed to run for a month Bl. 387; Johnstone v. Hall, 2 Kay & only, owing to the levy of an execu- J. 414. tion thereon, and a schooner having 45 German v. Chapman, 7 Ch. Div. been substituted during such month 271. which ran at Irregular intervals and 45a Reeves v. Cattell, 24 Wkly. Rep. carried all the freight offered. 485. 41 Browne v. Niles, 165 Mass. 276 43 N. B. 90. 804 MODE OF UTILIZATION OF PREJMISES. § 123 A covenant that any building to be erected shall be used as a private residence only is broken, it has been held, by the erec- tion of a large block of buildings, to be occupied as residential flats, with a public entrance and staircase.*® A clause in a lease to the lessor's mother "only for herself to occupy as a residence" v^as held not to be violated by her marriage to a man who, with his four children, then came to live with her.*'^ A covenant to use the premises for mercantile purposes and not otherwise is broken by their use for a barber shop,** and a covenant to use them only for an oilcloth and dry goods store is broken by the holding of auction sales of oilcloth and dry goods.*" A saloon is not a "salesroom" within a covenant allowing the premises to be used only as a "studio, salesroom and dwelling house. "50 Where premises were leased to trustees of a society, to be used only for the purposes of the society and for a land office, their use for a justice's court by one of such lessees was regarded as forbidden.51 But when the lease was of rooms to be used as a real estate and conveyancing office, it was considered, in the same jurisdiction, that no substantial breach of covenant was caused by their use as a justice 's office, no loss of rents as to the rest of the building having resulted from such use.^^ A statement in the instrument of lease, that the premises are demised for a particular purpose, or are to be used for a par- ticular purpose, has occasionally been regarded as constituting a covenant to use them for such purpose only.^s In one case ^6 Rogers v. Hosegood [1900] 2 ■■•.0 Bryden v. Northrup, 58 111. App. Ch. 388. 233. ii Schroeder v. King, 38 Conn. 78. si Parwell v. Easton, 63 Mo. 446. 4s Cleve V. Mazzoni, 19 Ky. Law 52 White v. Kane, 53 Mo. App. 300. Rep. 2001, 45 S. W. 88. This was merely a dictum. The pro- ■»» Weil V. Abrahams, 53 App. Div. vision as to use was not only not in 313, 66 N. Y. Supp. 244. See Stew- the form of a covenant, but it was ard V. Winters, 4 Sandf. Ch. (N. Y.) not in terms exclusive of other uses. 587. 53 McDonald v. Starkey, 42 III. So a covenant to use only for a 444; Sullivan v. Monahan, 123 111- gentlemen's furnishing store has App. 467; Spalding Hotel Co. v. been held to be broken by the hold- Emerson, 69 Minn. 292, 72N. W. 119; ing of frequent auction sales of the Anderson v. Miller, 96 Tenn. 35, 33 lessee's stock. Cockburn v. Quinn, S. W. 615, 31 L. R. A. 604, 54 Am. 20 Ont. 519. . St. Rep. 812 (ante, note 7) ; De For- §123 EXPRESS COVENANTS. 805 it was decided that such a provision would not exclude an addi- tional use of the premises, not interfering with the specified use, as for instance when the lease was for use as a private residence, and the lessee received boarders for hire.** And in another case it was decided that a clause, following the description, "to be used as cabinet warerooms," did not involve a covenant to use for no other purpose, there being an express prohibition against one particular use.^^ The circumstances of the particular case would evidently have a decided bearing iipon the construction of such a clause. That the instrument of lease described the land as containing a saw mill was regarded as not restricting its use to saw mill purposes,^^ and that it authorized the cutting of timber.B^ or the quarrying of rdek.^s has been held not to restrict its use to such purposes. A provision that the premises shall be occupied only as a first class liquor saloon has been construed, in connection with other expressions of intention, as fixing only the character of the saloon business to be carried on, and not as prohibiting the use of the premises for a different business.^^ f. Covenant against annoyance or nuisance. Occasionally there is a covenant not to do or permit acts to the annoyance of the lessor or the neighbors. Although such a clause immediately follows a clause prohibiting any offensive trade or business, it applies to a trade or business which is not within such preceding clause, if its exercise amounts to an annoyance.*** Any acts constitute an annoyance within a provision of this character, it has been said, if, in the minds of reasonable persons, they amount est V. Byrne, 1 Hilt. (N. Y.) 43. "Reed v. Lewis, 74 Ind. 433, 39 This seems to be assumed in Am. Rep. 88. White V. Kane, 53 Mo. App. 300; esBurr v. Spencer, 26 Conn. 159. Shumway v. Collins, 72 Mass. (6 68 Am. Dec. 379. Gray) 227. And see Maddox v. 59 Kerley v. Mayer, 10 Misc. 718, White, 4 Md. 72, 59 Am. Dec. 67; 31 N. Y. Supp. 818; Id., 155 N. Y. Independent Steam Fire Engine Co. 636, 49 N. E. 1099. So in San An- V. Richland Lodge No. 39, 70 S, C. tonio Brew. Ass'n v. Brents, 39 Tex. 572, 50 S. B. 499. Civ. App. 443, 88 S. W. 368, where, 6* Chautauqua Assembly v. Ailing, however, the word "only" does not 46 Hun (N. Y.) 582. occur. 05 Brugman v. Noyes, 6 Wis. 1. 00 Tod-Heatly v. Benham, 40 Ch. BsReed v. Lewis, 74 Ind. 433, 39 Div. 80. Am. Rep. 88. 806 MODE OF UTILIZATION OF PREMISES. § 123 to an interference with the ordinary comfort of existence, as dis- tinguished from a mere fanciful feeling of distaste, irrespective of whether actual damage has been sustained.®^ And so it was held that the reasonable apprehension of danger from infection, resulting from the proximity of a throat hospital, was sufficient to render such hospital an annoyance, even though there was no actual risk of infection.^^ j^j^^j ^j^g erection of a large wooden screen above the fence between the leased premises and those adjoining, which tended substantially to interfere with the ac- cess of light to the latter premises, was regarded as an annoy- ance.®3 But a prominent advertisement, even though ugly and obtrusive, placed across the front of the building leased, in a neighborhood exclusively devoted to business, was held not to be within a covenant against the doing of anything which might grow to the injury, annoyance, dist^^rbance or inconvenience of tlie lessors.''* To involve a breach of a covenant by the lessee not to maintain a "nuisance," it is not, it seems, necessary that the nuisance be one in the technical sense. ^^ j^^i ^ different view has been as- serted, with the result of holding that the establishment of a national (public) school does not involve a breach of such a covenant.®" A boys' school has been regarded as within a cove- nant against any trade, business, or occupation whereby any in- jurious, offensive or disagreeable noise or nuisance shall be oc- casioned. ®'' g. Covenant as to liquor business. A covenant on the part of the lessee not to use the premises for a liquor business, or for a liquor business of a particular character, has occasionally been the subject of judicial construction. Tt has been decided that a covenant not to use a building on the premises as "a public house, tavern, or beershop" is broken by selling beer not to be drunk on the premises,®* while a covenant not to use a building I" Todd-Heatly v. Benham, 40 Ch. "^ Tod-Heatly. v. Benham, 40 Ch. Div. 80. l^i'^- 80. 62 Tod-Heatly v. Benham, 40 Ch. ""Harrison v. Good, L. R. 11 Bq. 338. Dlv. 80. «3 Wood V. Cooper [1894] 3 Ch. 671. 0* Our Boys' Clothing Co. v. Hol- 87 Wanton v. Coppard [1899] 1 Ch, 92. «8 London & Suburban Land & born Viaduct Land Co., 12 Times gi^g co. v. Field. 16 Ch. Div. 645; Law R. 344. Nieoll v. Fenning, 19 Ch. Div. 258. § 123 EXPRESS COVENANTS. 807 as a beerhouse or as a public house for the sale of beer is not broken by such sales of beer to be drunk elsewhere.^s ^ cove- nant by the lessee that he will not sell liquor on the premises is not violated, it has been decided, by his subletting of the prem- ises for use as a retail liquor saloonj^ When property is leased for the carrying on of the liquor trade, there is sometimes, particularly in England, a covenant on the part of the lessee not to do any acts which will forfeit the license. A covenant by the lessee not to do any act which may "affect, lessen or make void" the license,''^ or cause it to be "in any danger of being suspended, discontinued or f orf eited, "'^^ has been held not to be broken by the lessee's conviction of sell- ing in violation of law, this not necessitating, under the law, a refusal to extend the license. But a covenant not to do or suffer to be done on the premises any act by which the license ' ' may be forfeited" has been regarded as covering a case in which the license is brought in jeopardy by the act of the tenant, though not actually forfeited.'^* A covenant not to do or suffer any act whereby the license might be forfeited is not broken because a sublessee does such act,^* and it is immaterial that the covenant by the lessee is that neither he nor his "assigns" shall do such act, the word "as- signs" not ordinarily including "sublessees. "^^ ^^^ .^ covenant at all times during said term to keep and conduct the saloon in a regular and proper manner in all respects has been regarded as broken by the closing of the saloon owing to a breach of the licensing law on the part of a sublessee.'^s In England, when premises leased for a "public house" or, as we would ordinarily say, a "saloon," are owned by the pro- 60 London & N. W. R. Co. v. Gar- 72 Fleetwood v. Hull, 23 Q. B. Div. nett, L. R. 9 Eq. 26; Holt & Co. v. 35. Collyer, 16 Ch. Div. 718. In In re 73 Harmann v. Powell, 60 Law J. Cullen & Rial's Contract [190-t] 1 Ir. Q. B. 628. And see Mumford v. Walk- 206, a covenant not to follow the er, 71 Law J. K. B. 19. trade of a publican on the premises t4 Wilson v. Twamley [1904] 2 K. was held not to be broken by trading B. 99. as a licensed "spirit grocer." 75 Bryant v. Hancock & Co. [1898] 70 Granite Bldg. Corp. v. Greene, 1 Q. B. 716 [18991 App. Cas. 442. 25 R. I. 586, 57 Atl. 649. ''« Palethorpe v. Home Brewery Co. 71 Wooler V. Knott, 1 Exch. Div. [1906] 2 K. B. 5. 124. 808 MODE OF UTILIZATION OF PREMISES. § 123 prietor of a brewery, a covenant is frequently entered into by the lessee to buy from the lessor all beer sold on the premises. Such a covenant has been held to bind the lessee only so long as the lessor supplies him with beer of good marketable quality, and only if it is of the kind required by him in his busnessJ^ h. Covenant to occupy personally. Though, apart from an express stipulation to the contrary, the lessee is not, it seems, under any obligation to take possession,^^ j^e may expressly agree to occupy. It has been held that a covenant to "use" the house "as a dwelling" was broken by the removal of the- tenant's family, though he left his goods there and occasionally slept there.''^ And a covenant by the lessee to reside on the premises and conduct a hotel thereon has been held to preclude an assign- ment to a corporation.^^" i. Covenant as to taking supplies from lessor. Where a lessor agreed to supply to the lessee the whole of the chlorine still-waste as it came from his still, at a given rate, and not to use, injure or part with any of the still-waste except to the lessee, it was held that the lessee was bound to take the whole of the waste which, during his tenancy, came from the still, although such waste ceased to be useful to him.^o And where it was agreed, upon the leasing of lime works, that the lessor should furnish, and that the lessee should take, from a certain colliery all the coal that might be required for the lessee's business, and that colliery did not yield the quantity required, the lessee, it was held, could resort elsewhere only for the deficiency.* ^ A cove- nant by the lessee, upon a lease of a lot in the grounds of a camp meeting association, to conform to such regulations as the as- sociation should from time to time impose, has been held not to entitle the association lessor to make a regulation requiring the lessee, and all other lot owners, to purchase all their supplies at stores operated by the association.^^ Occasionally the lessee of premises intended to be used for the liquor business agrees to purchase all his supplies, or a specified " See post, at notes 83-87. so Bealey v. Stuar-t, 7 Hurl. & N. 7s See ante, § 122. 753. T9 Marsh v. Bristol, 65 Mich. 378, si Wight v. Dicksons, 1 Dow, 141. 32 N. W. 645. S2 Thousand Island Park Ass'n v. T!>a Jenkins v. Price [1908] 1 Cli. Tucker, 173 N. Y. 203, 65 N. E. 975, 10. 60 U R. A. 786. § 123 EXPRESS COVENANTS. 809 portion thereof, from the lessor. Such an agreement can, it has been held, be enforced only so long as the lessor supplies a good marketable quality of the specified article,^^ and the kind re- quired in his business.^* But a contract to the effect that no beer other than that manufactured by the lessor shall be sold on the premises has been held to be operative, so far as precluding the sale of other beer, even though the lessor's beer could not be legally obtained, as was known to the parties at the time of the lease, and though the lessor was a member of a combination formed for the purpose of controlling the local trade in beer.^^ Whether such a covenant will bind the lessee or his assigns in case the lessor, or the transferee of the reversion, removes the brewery plant to another place, has been regarded as a question of construction.^* The benefit of a covenant binding the lessee to take beer from the lessor or his successors in business only was held not to pass to a transferee of the reversion, the lessor continuing the business himself.*'^ j. Persons affected by covenant. A covenant as to the mode of use of the premises is one which runs with the land, so as to bind one to whom the leasehold interest is assigned.^s And so the assignee is bound by a covenant to conduct the liquor busi- ness on the premises strictly according to law,*^ to purchase all his stock from the lessor.^" and not to use the premises for a certain purpose."^ Though a covenant by the lessee to use premises, or not to use them, in a particular way, is binding on the assignee, and ren- ders him liable in damages in case it is violated by him, neither ssHolcombe v. Hewson, 2 Camp. 56, 47 N. W. 47; Granite Bldg. Corp. 391; Liuker v. Dennis, 7 Ch. Div. 227. v. Greene, 25 R. I. 586, 57 Atl. 649; s^Edwiclc V. Hawkes, 18 Ch. Div. Brolaskey v. Hood, 6 Phila. (Pa.) 199. 193. 85 Joseph Schlitz Brew. Co. v. Niel- «s Crowe v. Riley, 63 Ohio St. 1, 57 sen, 77 Neb. 868, 110 N. W. 746, 8 N. E. 956. L. R. A. (N. S.) 494. »o White v. Southend Hotel Co. so See Doe d. Calvert v. Reid, 10 [1897] 1 Ch. 767. Barn. & C. 849; Clegg v. Hands, 44 oi American Strawboard Co. v. Ch. Div. 503 ; Manchester Brewery Haldeman Paper Co., 27 C. C. A. 634, Co. V. Coombs [1901] 2 Ch. 608. 83 Fed. 619, applying the principle 87 Birmingham Breweries v. Jame- of Tulk v. Moxhay, 2 Phil. Ch. 774, son, 67 Law J. Ch. 403. post, § 131. sswertheimer v. Hosmer, 83 Mich. 810 MODE OF UTILIZATION OF PREMISES. § 123 the lessee nor his assignee is liable, as for a breach of such cov- enant, because a subtenant uses the premises in a way not in ac- cord with such covenant, and this has been decided to be the case even though the covenant is expressly made binding on "as- signs," subtenants not being assigns.''^ It has in one state been decided that if the lessee covenants not to "suffer" a particular use of the premises, he is liable as for a breach of the covenant if a subtenant makes such use.^^ In Eng- land, however, a different view is adopted, it being considered that a tenant does not "suffer" premises to be so used merely because he leases to one who so uses them.^* Presumably, how- ever, in any jurisdiction, a covenant in general terms that a par- ticular use of the premises shall not be made would be regarded as imposing liability on the covenantor, and also upon his assigns, in case a subtenant makes such use.^^ A subtenant, not being in privity with the head landlord,*'" is obviously not subject to any liability in damages by reason of his failure to comply with a covenant of the original lease with reference to the use of the premises."" He may, however, under the equitable doctrine that one taking possession of property is bound by any existing restrictions upon its use of which he has notice,"'' be restrained by injunction from using the property in violation of restrictions contained in the head lease ®* or in any 92 Bryant v. Hancock & Co. [1898] »sa See post, §§ 161-164. 1 Q. B. 716; Granite Bldg. Corp. v. sb Crowe v. Riley, 63 Ohio St. 1, Greene, 25 R. I. 586, 57 Atl. 649. 57 N. E. 956. But see Anderson v. Miller, 96 Teun. 07 See post, § 131. 35, 33 S. W. 615, 31 L. R. A. 604, 54 as Cosser v. CoUinge, 3 Mylne & K. Am. St. Rep. 812, post, note 98. 283 ; Tritton v. Bankhart, 56 Law T. i>3 Wheeler v. Earle, 59 Mass. (5 (N. S.) 306; Teape v. Douse, 92 Gush.) 31, 51 Am. Dec. 41; jROller v. Law T. (N. S.) 319; Arnold v. White, Prescott, 163^ass. 12, 39 N'~W.1E09, 5 Grant Ch. 371; Peer v. Wadsworth, ifAlmrsi Rep.""434. Approval of 67 N. J. Eq. 191, 58 Atl. 379. See this view is expressed in Granite Godfrey v. Black, 39 Kan. 193, 17 Bldg. Corp. V. Greene, 25 R. I. 586, Pac. 849, 7 Am. St. Rep. 544. 57 Atl. 649. In Wertheimer v. Hosmer, 83 9i Bryant v. Hancock & Co. [1898] Mich. 56, 47 N. W. 47, it was held 1 Q. B. 716; Wilson v. Twamley that one who was apparently a sub- [1904] 2 K. B. 99. tenant could be enjoined from mak- ?5 It 'is so decided in Crowe v. ing the forbidden use. the court, Riley, 63 Ohio St. 1, 57 N. B. 956. however, referring to him as "as- § 123 EXPRESS COVENANTS. 811 other instrument in the sublessor's chain of title.**" But this doctrine does not, it has been decided, authorize an injunction against a subtenant to compel him to take active measures against one holding as his tenant, to compel him to refrain from making a forbidden use of the premises.**'' A stipulation by the lessee, precluding a certain use of the premises, cannot be asserted by a sublessee of a part of the prem- ises, the stipulation not being made for his benefit, and he being neither the covenantee nor an assignee of the covenantee.** k. Waiver of covenant. The mere fact that the landlord fails, for a considerable time, to object to a use of the premises not in accord with the covenant does not, it would seem, involve a waiver of the covenant.'** Nor is there a waiver for all pur- poses because he assents to a particular act which would other- wise constitute a breach .1*1 But if he acquiesces in expenditures signee," and liable as such under the tlon as to the use of the premises, covenant as one running with the and the decision is perhaps to be land. regarded as based on the ground of In Stees v. Kranz, 32 Minn. 313, negligence in using the premises for 20 N. W. 241, an injunction was sus- the storage of an inflaftimable article, tained as against the subtenant on It does not even appear whether the the ground that the lessee, having subtenant was a party to the action, no right to use the premises in a »sa Clements v. Welles, L. R. 1 Eq. certain way, could not give such 200; Dunn v. Barton, 16 Fla. 765. right to others. But, it may be re- osb Hall v. Ewin, 37 Ch. Div. 74. marked, a subtenant has the right to oo Beebe v. Tyre, 49 Wash. 157, make a particular use of the prem- 94 Pac. 940. ises, not because the tenant gives 100 See London, C. & D. R. Co. v. him such right, but because such Bull, 47 Law T. (N. S.) 413; De Bus- right is incident to the right of pos- sche v. Alt, 8 Ch. Div. 286. But in session given to him by the tenant. Wildey Lodge No. 21 v. Paris, 31 See, also, Spalding Hotel Co. v. Em- Tex. Civ. App. 632, 73 S. W. 69, it erson, 69 Minn. 292, 72 N. W. 119. was decided that the landlord could . In Anderson v. Miller, 96 Tenn. not, after a school had been main- 35, 33 S. W. 615, 31 L. R. A. 604, 54 tained on the premises by the ten- Am. St. Rep. 812 (ante, | 111, note ant for fifteen years, assert that it 860), it is said that the rights of was not such a school as was called the subtenant as to the use of the for by the lease, premises were to be measured by i»i In Brooks v. Clifton, 22 Ark. those of the tenant because it was 54, it is decided that a provision that through him that he occupied the the premises shall be used for the premises. There, apparently, how- storage of a certain class of articles ever, there was no express stipula- only is not wholly waiyed because 812 MODE OF UTILIZATION OF PREMISES. | 123 made by the tenant for the purpose of adapting the premises to a particular use, he cannot afterwards object that such use is prohibited by the terms of the lease/^^ there being in such case a valid estoppel. 1. Remedies for breach. In case of breach of a covenant as to the use of the premises, the landlord may bring an action for damageSji"^ but more usually he would seek an injunction to restrain the forbidden use, a remedy to which the landlord is well recognized to be entitled.^"* The fact that the landlord might enforce a forfeiture for breach of such covenant does not dis- entitle him to an injunetion.i''s the lessor failed to object to its use lo* Godfrey v. Black, 39 Kan. 193, for the storage of certain other ar- 17 Pac. 849, 7 Am. St. Rep. 544; tides. Hovnanlan v. Bedessern, 63 111. App. In Gannett v. Albree, 103 Mass. 353; Jalageas v. Winton, 119 111. App. 372, it was decided that, where the 139; Maddox v. White, 4 Md. 72, 59 instrument of lease stipulated that Am. Dec. 67; Stees v. Kranz, 32 the premises should he used "strictly Minn. 313, 20 N. W. 241; Spalding as a private dwelling, and not for Hotel Co. v. Emerson, 69 Minn. 292, any public or objectionable pur- 72 N. W. 119; Steward v. Winters, pose," the fact that the lessor con- 4 Sandf. Ch. (N. Y.) 587; Howard v. sented to their use for sleeping ElUs, 6 N. Y. Super. Ct. (4 Sandf.) rooms in connection with a girls' 369; Weil v. Abrahams, 53 App. Div. school did not preclude him from ob- 313, 66 N. Y. Supp. 244; Chautauqua jecting to their subsequent use as Assembly v. Ailing, 46 Hun (N. Y.) a boarding house. 582; Dodge v. l.ambert, 15 N. Y. That the lessor consents to the Super. Ct. (2 Bosw.) 570; Glllilan v. assignment of the lease to a railroad Norton, 29 N. Y. Super. Ct. (6 Rob.) company does not entitle the com- 546, 33 How. Pr. 373; Orvis v. Na- pany to use the premises for a rail- tional Commercial Bank, 81 App. Div. road track, a use not permitted by 631, 80 N. Y. Supp. 1029; Jos. Schlltz the instrument of lease. Bass v. Brew. Co. v. Nielsen, 77 Neb. 868, 110 Metropolitan West Side El. R. Co., N. W. 746, 8 L. R. A. (N. S.) 494; 27 C. C. A. 147, 82 Fed. 857, 3^ L. Cockburn v. Quinn, 20 Ont. 519; R. A. 711. Barret v. Blagrave, 5 Ves. Jr. 555; 102 See Malley v. Thalheimer, 44 Tod-Heatly v. Benham, 40 Ch. Div. Conn. 41; London, C. & D. R. Co. v. 80. Bull, 47 Law T. (N. S.) 413. i05 Godfrey v. Black, 39 Kan. 193, 103 See Stillman v. Thompson, 80 17 Pac. 849, 7 Am. St. Rep. 544; Conn. 192, 67 Atl. 528, an action for Stees v. Kranz, 32 Minn. 313, 20 N. damages on account of the breach of W. 241; Barret v. Blagrave, 5 Ves. a covenant to use the premises as a Jr. 555. Nor does the fact that the bakery, thereby destroying the value lessor has asserted a forfeiture have of the good will and of the bakery ^uch an effect. Joseph Schlitz Brew, equipment on the premises. § 124 RESULTING NUISANCE. 813 § 124. User resulting in nuisance. If the tenant makes such a use of the premises as to create a nuisance to an adjoining owner, he is obviously liable to the latter in damages, or may be restrained by injunction from con- tinuing the nuisance, the fact that he is in possession for a limited time only being immaterial in this regard. If the lease was made for the purpose of such a use, the lessor will be liable' as a joint tort feasor,! 06 j^^^ jf ^le cannot be regarded as having connived at such a noxious use of the premises, neither he nor his transferee is liable on account of such use by the tenant.i"^ The landlord, if the owner or occupant of adjoining premises, has the same right as any other adjoining owner to object to such a use of the premises by the tenant as to create a nuisance, he not having consented to such use.^"* If not the owner or occu- pant of neighboring premises, the landlord has, it would seem, apart from express stipulation, no right to object to a particular use of the premises as constituting a nuisance, unless it involves the commission of waste. ^"9 Co. V. Nielsen, 77 Neb. 868, 110 N. Faulkner, 25 Ky. Law Rep. 1037, 76 W. 746, 8 L. R. A. (N. S.) 494. S. W. 1083. Here the use of the 106 See ante, § 102, at note 565. premises for storing manure was 107 Bachert t. Lehigh Coal & Nav. regarded as a public nuisance. Co., 208 Pa. 362, 57 Atl. 765. See los Pogarty v. Junction City Press- ante, § 121. ed Brick Co., 50 Kan. 478, 31 Pac. A covenant by the lessor to in- 1052, 18 L. R. A. 756. demnify the lessee against any dam- ^09 But in Kurrus v. Seibert, 11 age caused by using the premises for 111. App. (11 Bradw.) 319, it seems a purpose constituting a public nui- to have been considered that merely sance was held to be illegal in Leb- as landlord one might abate a nui- anon Carriage & Implement Co. v. sance on the premises. CHAPTER XII. EASEMENTS AND ANALOGOUS RIGHTS. § 125. Easements existing at time of lease. 126. Express grant or agreement. 127. "Appurtenances." 128. Implied grant of easement. 129. Reservation of easement. 130. Acquisition or grant ty tenant. 131. Restrictive covenants. 132. Rights of access and approach. 133. Light. 134. Water rights. 135. Use of adjoining premises. 136. Furnishing of power. 137. Furnishing of heat. 138. Signs and other advertising devices. § 125. Easements existing at time of lease. Upon the making of a lease of land, as upon any other con- veyance thereof, easements already existent, appurtenant to the demised premises, pass with the land, and the lessee or his as- signee has the right to the enjoyment thereof so long as the ten- ancy continues.^ If for instance there is a right of way ap- purtenant to the demised land, the lessee is entitled to the use 1 Philadelphia & Reading Coal & In Edmison v. Lowry, 3 S. D. 77, Iron Co. V. New York, 21 Fed. 97; 52 N. W. 583, 17 L. R. A. 275, 44 Bedlow V. New Tork Floating Dry- Am. St. Rep. 774, it is said that the Dock Co., 112 N. T. 263, 19 N. E. 800; lease of property abutting on a jpub- Brown v. Honeyfleld (Iowa) 116 N. lie street includes all the rights, in- W. 731; A. H. Pugh Printing Col v. cidents and easements In such street Dexter, 5 Ohio N. P. 332; Skull v. belonging to said property and not Glenister, 16 C. B. (N. S.) 81. specially reserved in the lease. § 126 EASEMENTS. 815 thereof,^ and a lessee has been decided to be entitled to water rights enjoyed by his lessor in connection with the premises.^ § 126. Express grant or agreement. The lease may, by express provision, create in favor of the lessee easements, or rights in the nature of easements, affecting the lessor's exclusive enjoyment of land retained by him, that is, the lessee may be given, aS appurtenant to the demised land, rights as to the use of land retained by the lessor.* For instance, the lease may give the lessee a, right of way over land retained by the lessor, or, in the case of a lease of a room or rooms in a build- ing, the lessee may be given a right to use a passageway or stair- case in the part of the building retained by the lessor.^ So a lessee may be given a right to light coming over other land retained by the lessor, the effect being to preclude any obstruction of such light by the lessor.^ Not infrequently the lease expressly gives to^ the lessee certain 2 Morrison v. Chicago & N. W. R. water vests in a lessee of such land. Co., 117 Iowa, 587, 91 N. W. 793; Crook v. Hewitt, 4 Wash. 749, 31 Pac. Oliver v. Dickenson, 100 Mass. 114. 28. In Avery v. New York Cent. & H. R. * In Basserman v. Trinity Church R. Co., 26 N. Y. St. Rep. 279, 7 N. See, 39 Conn. 137, the lease gave the Y. Supp. 341, a right in the lessor to lessees "the privilege of using the have access to a railroad station, well and necessary on the lot next created by covenant, was held to south, so long as they remain," and pass to the lessee. The right in this it was held that the lessees could not case was, however, created by a cov- demand that they remain after the enant, and the covenant was regard- lessors desired to remove them, ed as running with the land. The Where the lessor of land abutting court seems to regard it a§ a right on a highway, the fee of which be- resting in a contract and an ease- longed to him, on leasing the prem- ment as well, but this Is, it is con- ises for a terni of years, authorized ceived, a legal impossibility. the lessee to maintain scales in the 3 Wyman v. Farrar, 35 Me. 64 highway in front of the premises (lease of factory run by water; les- leased, the privilege of so dulng was see has lessor's rights as to water) ; held to terminate with the lease. Stevens v. Wadleigh, 5 Ariz. 90, 46 Berry-Horn Coal Co. v. Scruggs-Mc- Pac. 70 (lessee succeeds to lessor's Clure Coal Co., 62 Mo. App. 93. rights as to Irrigation from a "com- » See post, § 132. munity ditch"). » Keating v. Springer, 146 111. 481, The "natural right" of the owner 34 N. E. 805, 22 L. R. A. 544, 37 Am. of riparian land to the use of the St. Rep. 175. 816 EASEMENTS. § 127 privileges or facilities based upon a use to be made by the lessor of land retained by him. For instance, the lessor may agree to furnish light, heat, or power, from premises remaining in his con- trol.'^ The lessee's right under such an agreement is in its na- ture contractual and not proprietary, and the term "easement/' sometimes used in such connection, seems out of place, the only point of resemblance to an easement being that a burden is im- posed on the lessor, as regards the utilization of the premises retained by him, in faA'^or of the leasehold estate, or rather, in favor of the person having such estate. § 127. "Appurtenances." Though the vi^ord "appurtenances" is frequently found in a conveyance of land, its use is ordinarily immaterial, since, with- out it, easements already existent, which are appurtenant to the land, will pass, and easements corresponding to pre-existing quasi easements, if "apparent" and "continuous," will be created.* Occasionally, however, the fact that a lease of premises is ex- pressed to be "with the appurtenances" has been regarded as giving the lessee easements or privileges which he would not otherwise have acquired." Thus in perhaps one or two English cases this word has been regarded as vesting in the lessee an easement of a right of way, corresponding to a pre-existing quasi easement, though this was not of such a continuous and apparent character th.at there was a grant of the easement by implication,^'' and it has been declared in one state that the use of this word gives the lessee "whatever was attached to or used with the premises, as incident thereto, and convenient or essential to the beneficial use or enjoyment thereof, "^^ it being in that case re- garded as giving to the lessee of a room certain rights in land on which it fronted. In other cases the use of the word was held to give to the lessee of part of a building a right to "exhaust steam" 7 See post, §§ 136, 137. case. See cases collected in Words 8 See cases cited 2 Tiffany, Real and Phrases, vol. 1, p. 477 et seq. Prop. § 393, and ante, § 125, post, § lo Morris v. Edgington, 3 Taunt. 128. 24; Thomas v. Owen, 20 Q. B. DiT. 9 The word is occasionally given 225. some effect in a conveyance in fee, n Doyle v. Lord, 64 N. Y. 432, 437, but what effect seems to depend on 21 Am. Rep. 629. the circumstances of the particular § 127 AND ANALOGOUS RIGHTS. 817 from the lessor's engine as he had been accustomed to have it under previous leases,!^ and the right to use a furnace in the basement of the building for the purpose of heating the upper floors leased.^* On the other hand it has been held to give no right to have steam and forced air furnished to the premises, even though there is a local custom to furnish them under like circumstances,^* nor to give a right of way not previously ex- istent.i*^ In one case it was held that the word "appurtenances" could be shown, by oral evidence, to mean that there should not be opened, into the passageway leading to the leased premises, an entrance to an adjoining saloon.^s The word "appurtenance" is properly confined to things of an incorporeal character, and a conveyance of land "with the ap- purtenances" will not ordinarily pass land other than that de- scribed, on the theory that it is appurtenant thereto, that is, "land cannot be appurtenant to land."'" And this principle ha's been applied in connection with a lease.i^ But there are decisions to the effect that it may, in a particular case, be shown that the word was not used in its technical sense, but was used in the sense of "usually occupied or enjoyed vdth," so as to pass land other than that specifically described,^* and it was decided in one case that a lease of a lot "with the ap- 12 Thomas V. "Wiggers, 41 111. 470. "aGeorke v. Wadsworth (N. J. In Parish v. Vance, 110 111. App. Eq.) 68 Atl. 71. 50, it was held that the right to is Lynch v. Hunneke, 61 N. Y. have electric light furnished by the Super. Ct. 235, 19 N. Y. Supp. 718. lessor passed as an appurtenance to is Co. I.,itt. 121 b ; cases cited 2 the rooms leased, as included in the Tiffany, Real Prop. § 393, note 227; word "appurtenances" in the lease. Words and Phrases, vol. 1, p. 484. so that the lessor could not cut it oft i7 Oliver v. Dickinson, 100 Mass. or withdraw the service, It being 114; Ogden v. Jennings, 62 N. Y. absolutely necessary to the les- 526. see's business, there being no gas ' is See Blphinstone, Interpretation connections and the lessor's agent of Deeds, 188; Hill v. Grange, 1 having stated, before the lease, that Plowd. 164; Hearn v. Allen, Cro. Car. it was appurtenant and would be 57; Thomas v. Owen, 20 Q. B. Div. included in the lease. 225; Whitney v. Olney, 3 Mason, 280, 13 Stevens v. Taylor, 111 App. Div. Fed. Gas. No. 17,595; Hill's Lessee 561, 97 N. Y. Supp. 925. v. West, 4 Yeates (Pa.) 142; Otis "Watkins v. Greene, 22 R. I. 34, v. Smith, 26 Mass. (9 Pick.) 293; 46 Atl. 38. Ammidown v. Granite Bank, 90 L. and Ten. 52. 818 EASEMENTS. § 128 purtenances " included tide and shore lands, an intention to this effect appearing from other provisions in the lease and the acts of the parties.18 The word "appurtenance" in the lease of a hotel, does not, it has been decided, cover an iron kettle located on an adjoining lot, and used for heating water for the purposes of the hotel.2o § 128. Implied grant of easement. In many cases, upon a conveyance in fee of land, an easement has been implied in favor of the grantee, upon the ground that, before the conveyance a quasi easement, of an apparent and con- tinuous nature, existed in favor of the land conveyed, that is, that the grantor, before the conveyance, made use of the land re- tained by him for the benefit of the land subsequently conveyed by him.2i It is on this theory, or one analogous thereto, ap- parently, that a lease has, in some cases, been held to create in the lessee, by implication, rights in the na,ture of easements, re- strictive of the lessor's free enjoyment of the land retained by the latter.22 Accordingly, it has been decided that, upon a lease of a room or rooms in a building, the lessee is entitled to the use of the stairs, hallways and entrances which have ordinarily been used as a means of access thereto, although no mention thereof is made in the instrument of lease, ^^ and likewise to the use of closets and wash rooms contiguous to the rooms,^* and to the use Mass. (S Allen) 285; Frey v. Drahos, thereta from hotel rotunda) ; Hall v. 6 Neb. 1, 29 Am. Rep. 353. Irvln, 78 App. Div. 107, 79 N. Y. 19 Brown v. Carkeek, 14 Wash. 443, Supp. 614 (lessee of rooms entitled 44 Pac. 887. to use of elevators, hallways, stairs 20 Barrett v. Bell, 82 Mo. 110, 52 and entrance to building) ; Hamil- Am. Rep. 361. ton v. Graybill, 19 Misc. 521, 43 N. 21 See 1 Tiffany, Real Prop. § 317. Y. Supp. 1079 (lessee of two rooms 2'2 In Jones v. Hunter, 1 New Br. entitled to entrance from hall to Eq. 250, the lessor was, on this the- each, as existing at time of lease); ory, restrained from building so as Miller v. Fitzgerald Dry-Goods Co., to block up an access to the demised 62 Neb. 270, 86 N. W. 1078 (lessee of premises through an alleyway. upper story entitled to use of entry- 23 Kitchen Bros. Hotel Co. v. Phil- way and stairway leading to rooms) . bin, 2 Neb. Unoff. 340, 96 N. W. 487 24 Hall v. Irvin, 78 App. Div. lOT, (lease of room in hotel building to 79 N. Y. Supp. 614; Underwood v. ticket broker; latter is entitled to Burrows, 7 Car. & P. 26. use of door and hallway leading § 128 AND ANALOGOUS RIGHTS. 819 of a doorbell or knocker. ^s And a lease of an office room has been regarded as entitling the lessee to maintain signs on the stairway leading thereto.^e A lease of a store in a building has been held to entitle the lessee to the use of a hatchway and hoist- ing apparatus in common with lessees of other rooms in the baild- ing.2'' So the right to a "blast" necessary for the lessee's forges, and which had been furnished from the lessor's adjoining prem- ises for several years, has been held to pass under the leasees Likewise, a lessee of a building is entitled to the support of an adjoining building owned by the lessor at the time of the lease,^^ this being in accordance with the recognized rule in the case of a conveyance in fee.^" How far, in order that an easement may thus be created by implication, it must be necessary to the en- joyment of the premises leased, does not clearly appear. In sev- eral of the cases in which such an easement is recognized, its existence is, in part at least, based on the fact that it is necessary for the full enjoyment of the leased premises,*"^ and conversely, in several cases, the existence of a particular easement is denied, on the ground that it is not necessary to the enjoyment of the premises.31 25 Underwood v. Burrows, 7 Car. Y. Supp. 754. And see post, § 133, & P. 26. as to easements of light. 26 Miller V. Fitzgerald Dry-Goods In Riddle v. Littlefleld, 53 N. H. Co., 62 Neb. 270, 86 N. W. 1078. 503, 16 Am. Rep. 388, it is said by See Whitehouse v. Aiken, 190 Mass. Foster, J., that by the lease of a 468, 77 N. E. 499. house or store "everything which be- 27 Browning v. Dalesme, 5 N. Y. longs to it, or is in use with it, and Super. Ct. (3 Sandf.) 13. which Is essential to its enjoyment, 28Thropp v. Field, 26 N. J. Bq. (11 passes as incident, unless specially C. E. Green) 82. reserved." 29 Snow V. Pulitzer, 142 N. Y. 263, si Cummings v. Perry, 169 Mass. 36 N. E. 1059. 150, 47 N. E. 618,, 38 L. R. A. 149; 30 1 Tiffany, Real Prop. § 317. Id., 177 Mass. 407, 58 N. B. 1083 (a 30a Miller v. Fitzgerald Dry-Goods right to use an elevator for certain Co., 62 Neb. 270, 86 N. W. 1078; purposes held not to pass to the Browning v. Dalesme, 5 N. Y. Super, lessee of a room, it not being "nec- Ct. (3 Sandf.) 13; Gans v. Hughes, essary," the mode of construction of 38 N. Y. St. Rep. 490, 14 N. Y. Supp. the elevator and the various rooms 930; Snow v. Pulitzer, 142 N. Y. 263, showing it not to be so intended, 36 N. E. 1059; Thropp v. Field, 26 N. and a stipulation in the lease for ita J. Eq. (11 C. E. Green) 82. See Rob- use for other purposes excluding any ert V. Thompson, 16 Misc. 638, 40 N. such implication) ; Hill v. Schultz, 82Q EASEMENTS. § 128 The doctrine that, upon a conveyance of land, which is other- wise inaccessible except by trespass on a stranger's land, the grant oi" a "way of necessity" will be implied, applies in the case of a conveyance by way of lease^^ ^nd so, upon a lease of the upper floors of a building, a way of necessity over the stairs necessary to reach it will no doubt be implied.*'^'' In England the doctrine has been laid down that when one con- veys land for a particular purpose, as for the erection of a house, or for the conduct of a particular business, the/ grantor thereby precludes himself from using adjoining land in such a way as to interfere with the use of the premises granted for such pur- pose, since, it is said, this would be "in derogation" of the grant.^^ The principle is evidently applicable in the case of a conveyance by way of lease as well as when the conveyance is in fee. And there are cases in which it has been applied in that connection.3* It has in one jurisdiction been decided that a lease of premises "to be used as a bakery" will give the lessee a right to have the water connection with the pipes on the lessor's adjoining prem- ises remain intact, water being necessary to such use of the premises.^s There are, in this country, occasional decisions and dicta which, 40 N. J. Eq. (13 Stew.) 164 (lessee 35 La. Ann. 784. And see Ramirez of a store held not entitled to have v. McCormlck, 4 Cal. 245; Motes v. the cellar steps under his show win- Bates, 74 Ala. 374; Agate v. Lowen- dows remain covered so that per- bein, 4 Daly (N. Y.) 62. sons could approach close to the 32a But not when the lease ex- windows to inspect the contents, pressly provides for another mode such use of the covering not being of access. Georke v. "Wadsworth (N. necessary to the reasonable enjoy- j. Eq.) 68 Atl. 71. And see Ram- ment of the store); Howell v. McCoy, irez v. McCormick, 4 Cal. 245. 3 Rawie (Pa.) 256 (lessee of tanyard 33 Northeastern R. Co. v. Elliot, 1 and bark mill has no right to throw Johns & H. 145; Caledonian R. Co. waste matter in the stream to the v. Sprot, 2 Macq. H. L. Cas. 449; injury of the lessor's lower land, nor Rigby v. Bennett, 21 Ch. .Div. 559; put it on the lessor's adjoining land, Siddons v. Short, 2 C. P. Div. 572. this being not necessary but merely 34 Hall v. Lund, 1 Hurl. & C. 676; convenient to the enjoyment of the Aldin v. Latimer, Clark, Muirhead leased premises). & Co. [1894] 2 Ch. 437. 32 Powers v. Harlow, 53 Mich. 507, 35 (Jans v. Hughes, 38 N. Y. St. 19 N. W. 257, 51 Am. Rep. 154; New Rep. 490, 14 N. Y. Supp. 930. Orleans City R. Co. v. McCloskey, J 129 AND ANALOGOUS RIGHTS. -821 while in terms treating the action of the lessor as a breach of his covenant for quiet enjoyment, apparently base the breach upon the fact that certain rights, more or less in the nature of ease- ments, were included in the lease. So in a case in which a lessor was held liable in damages for interfering with the water priv- ileges attached to the leased premises, in a way which the lease was construed not to permit, it was said that "every grant of any right, interest or benefit, carries with it an implied under- taking, on the part of the grantor, that the grant is intended to be beneficial; and that, so far as he is concerned, he will do no act to interrupt the free and peaceable enjoyment of the thing granted. "3^ And in another jurisdiction, in an action by the lessee of a cigar store adjoining a hotel with the right of entrance to the hotel, for injury caused by the act of the lessor in "closing" the hotel, the question was said to be " what was leased, ' ' and the lessor was held liable because the privilege of entrance from a hotel actually doing business was to be regarded as included in tjie lease.*'^ So in a somewhat similar case, involving the closing of an entrance from the lessor's hotel to the lessee's saloon, it was said that "when a person leases a room with doors and pas- sageways so connected with other rooms that these are essential to the use and enjoyment of the room leased, the law implies a covenant that such use shall not be interfered with during the term," it being further said that "the appurtenances of ingress and egress, essential to use and reasonably within the contempla- tion of the leasing, are as much a part of the estate conveyed as the room itself, and any interference therewith is an invasion of the rights of the lessees for which the law affords a remedy. "^^ § 129. Reservation of easement. The lessor may, in making the lease, expressly reserve an ease- ment in the premises leased in favor of land retained by him,39 3« Dexter v. Manley, 58 Mass. (4 of the use of adjoining premises. Gush.) 14, per Shaw, C. J. See post, § 185 f (8). »T Coulter V. Norton, 100 Mich. 389, ss Shaft v. Carey, 107 Wis. 273, 83 59 N. W. 163, 43 Am. St. Rep. 458. N. W. 288, per Bardeen, J. The recovery was in terms allowed ss gee Montgomery Amusement on the theory that there was an Co. v. Montgomery Trac. Co., 139 eviction. But it is difficult to see Fed. 353. any eviction in the mere cessation 822 BASEMENTS. § 130 the case being similar to the ordinary case of the express reserva- tion of an easement upon a conveyance in fee.*" As to whether there may be a reservation, as well as a grant, by implication, of an easement similar to a pre-existing quasi easement^ the cases in the different jurisdictions are not in harmoriy.*i There may,, however, in all jurisdictions, be an implied reservation of a way of necessity ,*2 and also, it seems, of a right of support for a build- ing retained from a building conveyed.*^ § 130. Acquisition or grant by tenant. The tenant, having an estate in the premises, may no doubt ac- qiiire an easement appurtenant to the leased premises for the period of the term created by the lease, and it has been held that if he acquires such an easement, not for his own term only, it will enure to the benefit of the landlord upon the expiration of the tenancy.**" A tenant for years may create an easement in favor of others to endure for the period of his own holding.** § 131. Restrictive covenants. In England the courts of equity have established a doctrine that, apart from any question of whether the burden of a covenant can run with the land at law, one who takes land with notice of a previous contract restricting the use of such land, made with the owner of other land,*^ will be restrained by injunction from making a use thereof in violation of such contract.*^ And this doctrine has been applied as against a lessee*'' as well as against 40 See 1 Tiffany, Real Prop. § 317. Dock Co., 112 N. Y. 263, 19 N. E. 800, •>i See 1 Tiffany, Real Prop. § 317. 2 L. R. A. 629. «1 Tiffany, Real Prop. pp. 713- 4* Newhoff v. Mayo, 48 N. J. Eq. 715. 619, 23 Atl. 265, 27 Am. St. Rep. 455. Tn Vidvard v. Cushman, 23 Hun is See Formby v. Barker [1903] 2 (N. Y.) 434, it is decided that the Ch. 539, 554. right to use a stairway in a store « Tulk v. Moxhay, 2 Phil. Ch. 774; for the benefit of an adjacent store Renals v. Cowlishaw, 9 Ch. Div. 125; is not reserved by implication when Rogers v. Hosegood [1900] 2 Ch. 388. the use is not necessary for the en- « Wilson v. Hart, 1 Ch. App. 463; joyment of the latter store. Fell den v. Slater, L. R. 7 Eq. 523; *3l Tiffany, Real Prop. p. 712. Pitz v. lies [1893] 1 Ch. 77; Hallo- «a Dempsey v. Kipp, 61 N. Y. 462; way Bros. v. Hill [1902] 2 Ch. 612. Bedlow V. New York Floating Dry- § 131 AND ANALOGOUS RIGHTS. 823 a grantee in fee. The doctrine has also been extended to cases in which land is laid out into lots under a general scheme of im- provement, it being intended that all purchasers of such lots shall improve them, according to such scheme, for the common benefit of all, and in such case the purchaser** or lessee*^ of one lot has been allowed to enforce by injunction a covenant entered into by either a prior or subsequent purchaser or lessee of another lot, restricting the mode of using or improving the lot so as to bring it into accord with the general scheme. Apart from any express covenants of this character, one pur- chaser or lessee may, it seems, be compelled, at the suit of an- other, to refrain from using or improving his lot so as to infringe upon the general scheme of improvement with knowledge of which he purchased or obtained his lease.^" That such a right as to the adjoining property may exist independently of any express covenant is in effect asserted by English cases which decide that the lessee of a flat in an apartment building, whose written and printed lease shows that the whole building was used or intended to be used for residential flats, and imposes certain regulations upon the lessee in accordance with this intended use, is entitled to an injunction against the lessor, seeking to turn the balance of the building into a elub,^i a hotel,"^ or public oiHces.^^ The same doctrine as to the binding effect of a restrictive covenant would, it seems, be applied as against an assignee of a lessee, so as to subject him to restrictions imposed by covenants entered into by his assignor, cither the lessee or a person from whom the land has passed to the latter, as well as to restrictions incident to a general scheme entered into by one of such persons, and with reference to which the assignee or his predecessor in title obtained the premises. The doctrine above stated has been enforced not only against an original lessee but also against a sublessee, with the effect of 48 See 1 Tifeany, Real Prop. § 352. 5i Hudson v. Cripps [1896] 1 Ch. i« Splcer V. Martin, 14 App. Gas. 265, approved in Jaeger v. Mansions 12. Consolidated, 87 Law T. (N. S.) 690. 50 See De Gray v. Monmouth Beach 52 Alexander v. Mansions Proprie- Club House, 50 N. J. Eq. 329, 24 tary, 16 Times Law R. 431. Atl. 388. See, also, article by Ed- ss Gedge v. Bartlett, 17 Times Law ward Q. Keasby in 6 Harv. Law R. 43. Rev. 297. 824 EASEMENTS. § 132 restraining him from utilizing the premises in violation of any restrictive covenants, contained in the head lease^* or elsewhere,^* with notice of which he could be charged. The equitable doctrines above referred to with reference to the enforcement of restrictive covenants and of general schemes of improvement and occupation, have been substantially recog- nized in a number of the states of this country, or analogous doc- trines have been asserted. They have here, however, been but seldom applied as against lessees,^^ assignees of lessees, or sub- lessees,^^ and a discussion thereof in this work would be out of plaee.58 In such states as recognize the running of the burden of covenants generally ,^^ it would seem that, without reference to the equitable doctrine above referred to, the lessee and his assigns would Idc bound by covenants entered into by the lessor with a third person, before the leasing of the land, as to the use thereof. § 132. Rights of access and approach. The tenant may have a right of approach and access to the leased premises over the adjoining premises of the lessor or of some other adjoining owner or owners by reason of an express grant of such right, either in his favor or in favor of his prede- cessor in title. One who takes a lease of premises cannot complain that there is no means of access thereto, it being for him, before taking the lease, to satisfy himself in this respect as in others.®** If, how- ever, the lessor retains adjoining premises, there is an implied grant of a way of necessity thereover, provided there is no other 54 Tritton v. Bankart, 56 Law T. o? stees v. Kranz, 32 Minn. 313, 2» (N. S.) 306; Hall v. Ewin, 37 Ch. N. W. 241, where a sublessee was re- Dlv. 74; Jolin Bros. Abergareo Brew- strained by injunction from violat- ery Co. v. Holmes [1900] 1 Ch. 188; ing a covenant by the lessee not to Holloway Bros. v. Hill [1902] 2 Ch. put the premises to a specified use, 612. See Johnstone v. Hall, 2 Kay seems to involve an application of & J. 414. the doctrine, though it is not im 55 Clements v. Welles, L. R. 1 Eq. terms referred to. 200. 58 The decisions are summarized 56 In Parker v. Nightingale, 88 in 1 Tiffany, Real Prop. c. 15. Mass. (6 Allen) 341, 83 Am. Dec. 632, so See 1 Tiffany, Real Prop. c. 14. the doctrine was applied as against eo Handrahan v. O'Regan, 45 Iowa, a lessee. 298. See ante, § 86 a. § 132 AND ANALOGOUS RIGHTS. 825 mode of approach except over the premises of a third person,**! and such a grant of a way of necessity may, no doubt, be implied upon a lease of a part of a building as well as upoji a lease of land.^2 If, however, there is another mode of approach to the premises, even though less direct and convenient, this doctrine has no application. ''s In some cases, as before suggested, a right to pass over ad- joining premises to and from those leased may exist on the theory of an implied grant of such an easement, corresponding to a pre- existing qvasi easement existing before the severance of the tene- ments.®* It is apparently upon this theory, as well as sometimes upon that of a way of necessity, that the tenant of rooms in a building has the right to use all the ordinary modes of access ^thereto, such as passageways, stairways and elevators, although no mention thereof is made in the instrument of lease.®^ And, ordinarily at least, the landlord cannot undertake to close a 01 See cases cited ante, note 32. fact that the lease expressly pro- 62 See Agate v. Lowenbein, 4 Daly vided for the construction of means (N. Y.) 62; Ramirez v. McCormlck, of communication between such 4 Gal. 245. floors and adjoining buildings be- In Chase v. Hall, 41 Mo. App. 15, longing to the lessee, an upper floor, which was leased, o* Crabtree v. Miller, 194 Mass. was accessible at the time of the 123, 80 N. E. 225. See ante, § 128. lease only by an outside stairway C5 That he has such right, see Hall temporarily erected on an adjoining v. N. Irvin, 78 App. Div. 107, 79 N. lot belonging to a third person. Y. Supp. 614; Eschman v. Atkinson, This stairway having been subse- 91 N. Y. Supp. 319 ; Miller v. Pitz- quently removed, it was held that gerald Dry-Goods Go., 62 Neb. 270, 86 the tenant of such upper floor could N. W. 1078. In Lindblom v. Berk- construct another stairway on thfi man, 43 Wash. 356, 86 Pac. 567, it rear of the building, consulting, how- was held that the lessor could not ever, the interest of the reversioner occupy a part of the hallway on the in locating such stairway. first floor of a building so as to im- 63 Motes v. Bates, 74 Ala. 374; pede the convenience of access to the Ramirez v. McGormick, 4 Gal. 245; second floor to the detriment of a Agate V. Lowenbein, 4 Daly (N. Y.) tenant thereof, although the lease 62. gave the lessor a right to alter the In Georke v. Wadsworth (N. J. stairway, and though part of^ the Eq.) 68 Atl. 71, it was decided that space occupied by the lessor was HO right to use a stairway to the obtained by changing the location of «pper floors lea.sed could be implied the stairway. as a way of necessity in view of the 826 EASEMENTS. § I33 means of access which existed at the time of the lease, even though another means of access exists or is provided.^^ There may be a grant, in effect, of a right of way in favor of the lessee, by reason of the fact that the lessor has estopped him- self to deny the existence of such way, as when in the instrument of lease he describes the premises as abutting on a road or street.®'^ A covenant by the lessor to provide a suitable right of way is not satisfied, it has been decided, by showing that a way by ne- cessity already exists.*® A provision in the instrument of lease that the "gangways" bounding the premises shall be kept open has been construed as binding both the lessor and lessee to refrain from obstructing such ways. 88 § 133. Light. In a number of the states the rule is apparently established that, upon a conveyance in fee, the grantee does not, by implica- tion, acquire an easement of light in adjoining land belonging to the grantor, unless, according to some cases, the light is abso- lutely necessary to the use of the building on the land granted."' The same rule has been applied in the case of a lease, it being held that the lessor, or one claiming under him, may erect build- ings on land adjoining the premises leased, although this obstructs the passage of light to the latter premises. ''^ The courts of one or two states, however, have adopted the English rule, that if one conveys premises on which there is a building, he, or his subse- quent grantee, cannot build on adjoining premises so as to cut off 06 Kitchen Bros. Hotel Co. v. Phil- C9 Beckwith v. Howard, 6 R. I. 1. bin, 2 Neh. Unoff. 340, 96 N. W. 487; to See authorities cited 1 Tiffany, Shaft v. Carey, 107 Wis. 273, 83 N. Real Prop. p. 706. W. 288; Hamilton v. Grayhill, 19 " Keating v. Springer, 146 111. 481, Misc. 521, 43 N. Y. Supp. 1079. 34 N. E. 805, 22 L. R. A. 544, 37 Am. «~ Thousand Island Park Ass'n v. St. Rep. 175 (in this case, however. Tucker, 173 N. Y. 203, 65 N. B. 975, there was an express covenant on 60 L. R. A. 786; Espley v. Wilkes, the subject); Palmer v. Wetmore, 4 L. R. 7 Exch. 298; 1 Tiffany, Real N. Y. Super. Ct. (2 Sandf.) 316; Prop. § 320, Myers v. Gemmel, 10' Barb. (N. Y.) 88 Bunker v. Pineo, 86 Me. 138, 29 537; Lindsey v. First Nat. Bank, Atl. 959. 115 N. C. 553, 20 S. E. 621. § 133 AND ANALOGOUS RIGHTS. 827 the light as it passed to the building at the time of the con- veyance.'' ^ In the case of a lease of a part of a building, that is, of one or more rooms therein merely, the eases even in this country tend to restrict the rights of the lessor or his subsequent transferee, whether by lease or otherwise, to obstruct the passage of light to the portion of the building leased. Thus it has in one state been decided that the lease of a room "with appurtenances" passes an easement, in the yard attached to the building, for the pro- curement of light and air,'^^ and in another that one who leases front rooms in his building cannot construct an addition to the building on an unenclosed space in front thereof so as to cut off the light and air from the rooms and cover the lessee's signs.''* A. like view has been asserted as to the obstruction of the light, passing to that part of the building which is leased, by reason of an alteration of the building itself, it having been decided that the lessor, or one standing in his place, cannot alter the building so as to prevent light and air from passing through a "well" as it did at the time of the leasc'^^ And it has likewise been de- cided that the tenant of an upper floor cannot obstruct the passage of light to a lower floor through a grating^® or skylight.'''' In ^2 In New Jersey the lessee, or tioned, no easement would have any other grantee, has an easement passed, but it also distinguishes the of light in the land retained by the cases deciding that no easement of lessor. Sutphen v. Therkelson, 38 light is created by implication on the N. J. Eq. 318; Ware v. Chew, 43 N. J. ground that in this particular case Eq. 493, 11 Atl. 746; Greer v. Van the yard had been appropriated to Meter, 54 N. J. Eq. 270, 33 Atl. 794. the use of the building and was a And for a dictum to that effect, see part of the same lot. Janes v. Jenkins, 34 Md. 1, 6 Am. 74 Brande v. Grace, 154 Mass. 210, Rep. 300. In Darnell v. Columbus 31 N. E. 633. But in Lindsey v. First Show Case Co., 129 Ga. 62, 58 S. E. Nat. Bank, 115 N. C. 553, 20 S. E. 631, it was held that the lessee had 621, the rule that no grant of a right an easement in such light and air as to light would be implied was ap- was "essential to the beneficial en- plied as against a lessee of a single joyment of the leased tenement," floor of a building, the lessor having which he could assert against one improved the adjacent lot so as to subsequently taking a lease of ad- cut off the light needed for the les- joining land from the same lessor. see's photographic business. 73 Doyle v. Lord, 64 N. Y. 432, 21 75 Case v. Minot, 158 Mass. 577, 33 Am. Rep. 629. The opinion is ap- N. E. 700, 22 L. R. A. 536. parently to the effect that if "ap- 76 Spies v. Damm, 54 How. Pr. (N. purtenances" had not been men- Y.) 293. 828 EASEMENTS. § I34 the various cases referred to, the light in question was presumably necessary for any proper enjoyment of the premises, and they may perhaps be regarded as coming within the exception to the general rule, sometimes asserted, that a grant of a right to light will be implied so far as it is absolutely neeessaryJ^ § 134. Water rights. The lessee of land abutting on a natural watercourse has the same "natural rights" as to the appropriation and utilization of the water as the landlord, if himself in possession, would have had,''^ and a tenant may also have the benefit of any rights as to water, created by contract or agreement, in favor of the leased premises, previous to the date of the lease. s* The landlord oc- casionally contracts to furnish water to the tenant for certain purposes or in a certain amount.*^ A lease of land covered by water in a pond gives a right to use the water and to take the fish therein,*^ and one holding under a lease of land covered by water has a right to the ice which may form above the land leased.^' A lease of land at the edge of a TT O'Neill V. Breese, 3 Misc. 219, 23 Stevens v. Wadleigh, 5 Ariz. 90, 40 N. Y. Supp. 526. Pac. 70. In Morgan v. Smith, 5 Hun (N. si in Ward v. Vance, 93 Pa. 499, Y.) 220, it was held that the con- the lessor agreed that the premises tinuance of the obstruction of a sky- should be supplied with water In the light by the tenant of an upper floor same manner as then supplied, this under a prior lease was a defense to being under contract with the owner the claim for rent, the lessor having of adjoining land on which there stated at the time of leasing the was a well, and it was held that the lower floor that the obstruction lessor was not liable to the lessee be- would be removed. cause the spring became dry. 78 See 1 Tiffany, Real Prop. § 317, 82 Smith v. Miller, 5 Mason, 191, note 126. And see, also, Stevens v. Fed. Cas. No. 13,080. Salomon, 39 Misc. 159, 79 N. Y. 83 Marsh v. McNider, 88 Iowa, 390, Supp. 136, to the effect that light 55 N. W. 469, 20 L. R. A. 333, 45 Am. "essential to the beneficial use of St. Rep. 240. the premises" cannot be cut off by As to the right of a tenant at will the lessor's construction of an addi- of premises, to which a right to tion to the building, a floor of which take ice from a pond was appurte- had been leased. nant, to restrain a subsequent lessee f!) Crook V. Hewitt, 4 Wash. 749, of the pond from turning hot water 31 Pac. 28. into the pond in the course of man- so Wyman V. Parrar, 35 Me. 64; ufacturing operations, see Walker § 135 AND ANALOGOUS RIGHTS. 829 pond "for the purpose of building and maintaining an ice house thereon" does not involve a grant of any rights in the pond, it has been decided, nor any right to cut ice therefrom.** It does not seem that, apart from an express provision in the lease, the tenant of a part of a building has any right to demand that the landlord be responsible for the furnishing of water to the premises, though they are "piped" for this purpose.s^ It has, however, been decided that the landlord could not cut or ob- struct the pipe by which water was furnished to premises leased for a business which required water, although the pipe passed through premises retained by him.*® § 135. Use of adjoining- premises. The instrument of lease occasionally contains a covenant on the part of the lessor precluding him from utilizing adjoining or neighboring premises for a purpose which would involve compe- tition with the business which the lessee intends to carry on, or from leasing adjoining or neighboring premises for such a rival business.*^ It has been held that a covenant by the lessor not to lease the adjoining premises for a particular business is not broken because a subsequent purchaser of the lessor's interest so uses them,** nor because one to whom he does lease them uses them, without authority from the lessor, for. such prohibited busi- ness,*® and on that theory the first lessee is apparently without any remedy in such case. In one jurisdiction, however, such a covenant has been held to give the lessee a right to an injunction, as against both the lessor and one to whom he subsequently leases adjoining premises, to restrain the violation thereof by the carry- ing on of such business by such second lessee,®'' and in the same Ice Co. V. American Steel & Wire Co., ss Postal Telegraph-Cable Co. v. 185 Mass. 463, 70 N. E. 937. Western Union Tel. Co., 155 111. 335, 84 Oliphant v. Richman, 67 N. J. 40 N. E. 587. Eq. 280, 59 Atl. 241. ss Lucente v. Davis, 101 Md. 526, 85 Reynolds v. Meldrum, 33 N. Y. 61 Atl. 622 (action for damages); St. Rep. 664, 11 N. Y. Supp. 568. Brigg v. Thornton [1904] 1 Ch. 386; 86 Cans V. Hughes, 38 N. Y. St. Ashby v. Wilson [1900] 1 Ch. 66 (in- Rep. 490, 14 N. Y. Supp. 930. And junction). see West Side Sav. Bank v. Newton, so Waldorf-Astoria Segar Co. v. 76 N. Y. 616. Salomon, 109 App. Dlv. 65, 95 N. Y. 87 See Brigg v. Thornton [1904] 1 Supp. 1053; Id., 184 N. Y. 584, 77 N. Ch. 386. E. 1197. 830 BASEMENTS. § I35 jurisdiction it was held that a covenant by the lessor not to "es- tablish" a competing business was broken by the lessor if he leased adjoining premises without restricting the mode of use by the second lessee, and such business was established by his lessee.^i A covenant not to carry on a competing business would, in most jurisdictions, be enforcible by injunction against a subsequent lessee or grantee,^^ and in some jurisdictions it might be enforcible against the latter by an action at law as a covenant running with the land.93 A covenant not to lease adjoining premises for the sale of cigars and tobacco has been regarded as broken by a lease for a grocery business, which included the sale of cigars and tobacco,^* and a covenant by the lessor not to sell goods of a certain character has been held to embrace sales by persons whom the lessor per- mitted to do business in connection with his department store in the same building.^s On the other hand a covenant, on the lease of a mill, not to let or establish any other seat on the same stream to be used for a rival mill, was regarded as broken only when a rival mill was put in operation by the lessee, and not by the mere leasing of land for that purpose.®^ The damages recoverable upon the breach of a covenant not to lease adjoining premises for a competing business may include, 91 Norman v. Wells, 17 Wend. (N. cases cited 1 Tittany, Real Prop. pp. Y.) 136. 757, 765. »2Holloway Bros. v. Hill [1902] 2 04 Waldorf-Astoria Segar Co. v. Ch. 612. In this case the covenant Salomon, 109 App. Div. 65, 95 N. Y. was not to suffer or permit such Supp. 1053; Id., 184 N. Y. 584, 77 N. competing business. See, as to en- B. 1197. forcement of such a covenant hy 95 Herpolsheinier v. Punke, 1 Neb. injunction, ante, § 131. Unoft. 471, 95 N. W. 688. 93 A covenant by the lessor not to A covenant, in the lease of a establish a competing business was saloon in a hotel, that the lessee held to run with the land in favor of should have the exclusive right to an assignee of the lessee, in Norman sell liquors in the hotel block, was V. Wells, 17 Wend. (N. Y.) 136. But held to apply to an annex to the in Thomas v. Hayward, L. R. 4 Exch. hotel subsequently constructed by 311, a different view was adopted, the lessor. Shaft v. Carey, 107 Wis. The decisions as to whether such 273, 83 N. W. 288. covenants, not entered into in con- oe Norman v. Wells, 17 Wend. (N. nection with leases, "touch and con- Y.) 136. cern" the land, are conflicting. See § 135 AND ANALOGOUS RIGHTS. 831 it has been decided, loss of protits caused thereby, if these can be determined with reasonable certainty.""" It has been decided in England, as before stated, that if the lease of an apartment plainly shows that the whole building was used or intended to be used for residential apartments, and con- tains certain regulations, in accordance with such purported use, to be observed by the lessee, the latter may obtain an injunction to prevent the lessor from subsequently turning the balance of the building into a club, hotel or public offices.^'^ In this coun- try, likewise, there are occasional decisions to the effect that .the tenant has a right to insist upon a continuance by the lessor of the use of adjoining premises which prevailed at the time of the making of the lease, this use contributing to the value of the leased premises for the lessee's purposes, and it has even been held that a cessation of such use of adjoining premises constituted an eviction .98 On the other hand, it has been held that one who took a lease of rooms in an office building, for the practice of medicine, could not complain that the balance of the building was afterwards altered and used as a hotel.''^ It has been decided that the landlord of a building has, as against the tenant of a lower floor, the right to remove the upper floors provided he first roofs the lower floorj^^" though in another case in the same jurisdiction it appears to be decided that he must leave undisturbed so much of the second floor as serves as a roof for the first floor, though he is entitled to remove a part of the building back of the rooms leased, provided he furnishes suitable conveniences in place of those in such portion removed.^"" The fact that the use of the lower part of a building by the owner thereof for a printing plant interfered with the use of the upper part as an annex to a hotel, for which purpose it had been MaMetzger v. Brincat (Ala.) 45 Shaft v. Carey, 107 Wis. 273, 83 N. So. 633. W. 288. See ante, notes 37, 38, and 07 Hudson V. Cripps [1896] 1 Ch. post, § 185 f (8), note 100. 265; Jaeger v. Mansions Consolidat- »« Tucker v. Du Puy, 210 Pa. 461, ed, 87 Law T. (N. S.) 690; Alexan- 60 Atl. 4. der V. Mansions Proprietary, 16 ssa Haskins v. George A. Fuller Times Law R. 431; Gedge v. Bart- Co., 36 Misc. 38, 72 N. Y. Supp. 440. lett, 17 Times Law R. 43; ante, at "o^Benedict v. International Bank- note 51-53. ing Corp., 88 App. Div. 488, 85 N. Y. OS Coulter v. Norton, 100 Mich. 889, Supp. 188, 39 Am. Rep. 649. 59 N. W. 163, 43 Am. St. Rep. 458; S32 EASEMENTS. ' § I3g leased, was held not to impose on the owner any obligation to re- frain from such use of the lower part, this being, as was the nse of the upper part for hotel purposes, in accord with the intention of the parties at the time of the lease, they mistakenly supposing that the printing plant would not cause any considerable noise or vibration.ioi That, in a lease of a suite of rooms in a building, the word "building" is followed by the words "known as the B. Apart ment Hotel" has been held to involve no obligation to use the balance of the building as an apartment hotel as distinguished from a hotel for transient guests. ^^^ § 136. Furnishing of power. As before remarked, a covenant by the lessor to furnish power cannot properly be regarded as an easement in the land retained by the lessor in favor of that leased, but there is some analogy to an easement in that such covenant imposes, in favor of the land leased, a burden upon that retained, so long at least as this latter has not passed out of the lessor to another person.^"' Whether the burden of such a covenant would pass with the land to another person, that is, whether it is a covenant which touches and concerns the land, within the rule recognized in some juris- dictions that the burden of such a covenant will run with the land, has apparently never been the subject of decision, and would seem on principle to be open to considerable question.^"* Ordinarily, it seems clear, there is no obligation on the lessor to furnish power, in the absence of an express contract to do so."5 But in one case it was decided that the obligation to fur- 101 Lyttelton Times Co. v. Warn- the connecting shaft. The court ex- ers [1907] App. Cas. 476. pressly says that the action was not 102 Bristol Hotel Co. v. Pegram, 49 upon the contract, but regards the Misc. 535, 98 N. Y. Supp. 512. power as something covered by the 10= See ante, at note 7. lease, a withholding of which is 104 In Chapman v. Kirby, 49 111. equivalent to an eviction of the 211, an action on the case against the tenant from the land leased. It is transferee of the portion of the difficult to see how a particular form building from which steam power of energy, to be developed in the was to be furnished was upheld in future by the consumption of fuel, favor of the lessee of the other por- can be the subject of a lease, tion of the building, such transferee iob See Pennsylvania Iron Co. t. having cut oft the power by severing Diller, 113 Pa. 635, 6 Atl. 272. In § 136 AND ANALOGOUS RIGHTS. 833 nish a "blast" for the lessee's forges, as it had been furnished to such forges prior to the lease, from adjoining premises belonging to the lessor, was involved in the making of the lease.^°® Questions have occasionally arisen as to the construction and effect of particular stipulations in regard to the power to be furnished the lessee. Where, upon the making of a lease of a factory, the lessor excepted a room and reserved the privilege of running a saw and lathe therein by use of the water power which ran the factory, it was held to be a question for the jury whether the use actually made by him of the room and power privilege so reserved was within the terms of the reservation, having refer- ence to the previous use of the power in that room, and the neces- sities of the lessee.!*'' ^ covenant, in connection with a lease of premises for a certain business, to furnish power to a certain amount, has been held to impose an obligation to furnish power of a uniform character when such uniformity was rendered nec- essary by the nature of the business, and it was not regarded as sufficient that the power was always greater than that named.^"* A provision that the lessor should fiirnish power to the lessee so long as the lessor should ' ' see fit to let him have it ' ' did not make the lessee a tenant at will of the power, and so entitled to the statutory notice before deprivation of the power.^o^ The fact that the lessor and lessee were both mistaken as to the amount of water necessary to furnish the number of horse power stipu- lated for in the lease, and that the amount of rent was based on this erroneous estimate, was held not to affect the lessee's right to the amount of water necessary to furnish that amount of power .!!" The failure to pay rent does not, it has been held, justify the New Era Mfg. Co. v. O'Reilly, 197 107 Dexter v. Manley, 58 Mass. (4 Mo. 466, 95 S. W. 322, it was held Gush.) 14. that the lessor was under no obli- los Trenkmann v. Schneider, 26 gatlon to furnish steam for heating Misc. 695, 56 N. Y. Supp. 770. or for power by reason of the fact "o Shorey v. Farrell, 114 Mass. that a steam plant erected for the 441. purpose of furnishing steam for the "o McKelway v. Cook, 4 N. J. Eq. building was located In another part (3 H. W. Green) 103. of the building to which the lessee As to the construction of the pecul- had no access. iar language of a covenant to fur- loeThropp v. Field, 26 N. J. Eq. nish steam and power, see French m C. E. Green) 82. v- Burns, 19 Pa. Super. Ct. 383; L. and Ten. 53. 834 EASEMENTS. § ]37 landlord in cutting otl' the power which he has agreed to fur- nish.m On the other hand, a provision that, in case the lessor should fail to furnish power in accordance with his stipulation, the rent should cease, was not regarded as making the cessation of rent a liquidation of the damages for failing to furnish power, disentitling the lessor to recover other damages.i^^ The lessor, failing to furnish power in accordance with his stipulation, has been held, in one jurisdiction, liable for all loss resulting from the consequent destruction of the lessee's busi- ness and the depreciation in the value of his stock, fixtures and vmachinery.118 There is a decision to the effect that he cannot recover the expensg of moving from the premises, since to this expense he would have been subjected even if he liad retained possession to the end of his term.ii'' § 137. Furnishing of heat. Not infrequently, in case of the lease of but a part of a build- ing, the lessor contracts to furnish heat for the premises leased.i^'"' For breach of such a covenant the tenant may recover damages.i'^' In some jurisdictions the breach of such a covenant lias been regarded as an eviction. i''® Smith V. Wenz, 185 Mass. 229, 70 N. the premises for a restaurant, was E. 57. the falling off in receipts on those 111 Chapman v. Kirby, 49 III. 211. days less the value of any food pre- 112 Fisher v. Barrett, 58 Mass. (4 pared on those days which could Gush.) 381. thereafter be used. 1" Chapman v. Kirby, 49 111. 211. In McCormick v. Stowell, 1S8 See ante, note 104. Mass. 431, loss of rental value by 114 Eddy V. CofiSn, 149 Mass. 463, reason of the absence of heat was 21 N. E. 870, 14 Am. St. Rep. 441. apparently conceded to be the proper n4a A stipulation that until heat measure of damages. And it was is furnished a diminished rent shall so decided in Borchardt v. Parker, be paid has been held not to require 108 N. Y. Supp. 585. heat to be furnished. Gatch v. Gar- In Ireland v. Gauley, 95 N. Y. retson, 100 Iowa, 252, 69 N. W. 550. Supp. 521, it was. held that the 115 In Nemrow V. Assembly Cater- lessee could not recover loss occa- ing & Supply Co., 121 App. Div. sioned by his unwillingness to work 481, 106 N. Y. Supp. 109, it was de- in the rooms leased owing to insufli- cided that the damages for failure cient heat when he could have reme- to supply heat for several days,, in died this at small expense, violation of a contract made by the us Bass v. Rollins, 63 Minn. 226, lessor with one to whom he leased 65 N. W. 348; Minneapolis Co-Oper- § 13S AND ANALOGOUS RIGHTS. 835 In New York there are several dicta to the effect that even though there is no express contract on the part of the lessor to furnish heat, there is, if the means of supplying heat is, as is ordinarily the case on a lease of an apartment, in the possession and control of the landlord, an obligation upon the latter to supply it, entitling the tenant, in case it is not supplied, to re- linquish possession and so relieve himself from liability for rent subsequently to aeerue.^i*"' There is a dictum to the effect that the lessor is liable for in- jury to a sick child of the tenant by reason of a lack of heat on the premises, the landlord having contracted to furnish the heat.i^" In another jurisdiction an action for the death of the tenant's child, as a result of the failure to furnish heat as agreed, was regarded as an attempt to recover for personal injury in an action of contract, and so not maintainable.^^* It Avould seem that if one who has contracted to furnish heat has actually en- tered upon the furnishing of heat, lie may owe a duty to the ten- ant or to members of the latter 's family to exercise) care in car- rying out the undertaking, for a failure to do which, as by sudden stoppage of the supply without warning, he might be held liable in damages. Such a liability would be tortious rather than con- tractual in character.il *" Even regarding such an action for per- sonal injury as one in tort, recoverj' might ordinarily be denied on the ground that personal injury from the failure to furnish heat might have been avoided by the adoption of other means for obtaining the necessary heat, or by removal from the premises until the resumption of the heat supply. § 138. Signs and other advertising devices. The lessee of rooms in a building has ordinarily, in the absence atlve Co. V. Williamson, 51 Minn. 53, Supp. 85; Jackson v. Paterno, 58 52 N. W. 986, 38 Am. St. Rep. 473; Misc. 201, 108 N. Y. Supp. 1073. Riley V. Pettis County, 96 Mo. 318, "^ O'Donnell v. Rosenthal, 110 111. 9 S. W. 906; O'GormaTi v. Harby, 18 App. 225. Misc. 228, 41 N. Y. Supp; 521. And "s Dancy v. Walz, 112 App. Div. see next following note. 355, 98 N. Y. Supp. 407. 118a Tallman v. Murphy, 120 N. Y. usa See a somewhat analogouiS 345, 24 N. E. 716; Ryan v. Jones, 2 case in Pittsfleld Cottonwear Mfg. Misc. 65, 20 N. Y. Supp. 842; Gale ▼. Co. v. Pittsfleld Shoe Co., 71 N. H. Heckman, 16 Misc. 376, 38 N. Y. 522, 53 Atl. 807, where one who had 836 EASEMENTS. § 13g of a provision to the contrary, the right to place signs to a reason- able extent on the walls enclosing those particular rooms, the walls being a part of the premises leased/^** and he may be given, by special stipulation, the right to place signs elsewhere in or on the bmlding.120 It has been decided that an express permission to a lessee to place signs upon the outer walls of the rooms leased is prima facie to be exercised with reference to the condition of the walls at the time of the lease, and that such a provision does not revoke a prior license to ,an older tenant to place signs on such walls, his signs not interfering with the later tenant's full enjoyment of his license.121 A provision that no sign should be placed on the front of the premises detrimental to other tenants was held to apply to a sign extending three inches below the floor line of the leased premises, so that a shadow was cast thereby into the prem- ises of the tenant of the lower floor, a dealer in high class paint- ings.^ ^^ The lease of a portion of a store building to a retail dealer in merchandise has been held to include the right to use, for the display of goods, a show window space, so that the lessors could not obstruct such space by showcases of their own,i23 or by the erection of a canopy.!-* Nor can another lessee obstruct the view of a show window or showcase which the tenant has the right to maintain in that place, ^-^ provided, at least, its main- tenance in that place can be regarded as having been within the contemplation of the parties to the lease.i^c contracted to furnish heat to A's 123 Herpolshelmer v. Funke, 1 Neb. building was held liable for injury UnofC. 471, 95 N. W. 688. to the property of A's tenant caused 12* Saratoga European Hotel & by the bursting of water pipes re- Restaurant Co. v. Mossier, 76 111. suiting from the sudden stoppage of App. 688. the heat supply. 125 Snyder v. Hersberg, 11 Phila. 119 See ante, § 26 c (2), at note (Pa.) 200. 547. 126 Whitehouse v. Aiken, 190 Mass. 120 See Snyder v. Hersberg, 11 468, 77 N. E. 499. Phila. (Pa.) 200, 33 Leg. Int. 158. In Dickerson v. Jenkins, 14 Misc. 121 Pevey v. Skinner, 116 Mass. 115, 35 N. Y. Supp. 605, it was held 129. that where portions of a floor were i=2 0ehme v. Shotland, 99 App. leased to different persons, they be- Div. 173, 90 N. Y. Supp. 958. Ing separated by a railing four feet § 138 AND ANALOGOUS RIGHTS. 837 A lease of merely a part of a building, a floor therein, for in- stance, is not ordinarily construed as including the roof, and consequently the lessor may utilize the roof for advertising with- out reference to the wishes of the lessee.^ ^7 ^^^ r^hg same view has been taken in the case of the lease of a store in a one-story building as to the right to use the space on the front above the joists of the eeiling.^^s high erected by the tenants, one ten- 127 Macnair v. Ames (R. I.) 68 Atl. ant could not complain because the 950; O. J. Gude Co. v. Farley, 28 view of his business was cut off by Misc. 184, 58 N. Y. Supp. 1036. the erection, by the other tenant, 128 Booth v. Galther, 58 111. App. within his own space, of racks above 263. the railing. CHAPTER XIII. TAXES AND INSURANCE. 5 139. Taxes usually payable by landlord. 140. Effect of exemption of landlord. 141. Tax on improvements made after demise. 142. Indemnificatiou of tenant paying tax. 143. Contract by lessee to pay taxes. a. Language evidencing contract. b. Payment as rent. c. Taxes within the contract. (1) Taxes levied after demise. (2) Tax laws enacted after demise. (3) Invalid taxes. (4) Special assessments. (5) Miscellaneous cases. d. Apportionment of tax. e. Effect of exemption. f. Availability of contract to taxing power. g. Transfer of leasehold or reversion, h. Termination of liability. i. Time of payment. j. Accrual of right of action. k. Damages for breach. 144. Water rates. 145. Insurance. a. In absence of contract. b. Contract to insure. § 139. Taxes usually payable by landlord. In this country the statutes imposing taxes on land, as on other property, are framed on the theory that the owner of the property is to pay the tax, and the owner of a reversion in land, the landlord, is alone reg'arded as the owner for this purpose, § 139 TAXES. 839 the tenant being looked upon merely as a temporary occupant.' The theory of the imposition of the tax on the landlord rather than on the tenant is well expressed in a North Carolina case, in which it is said that while, as a general rule, whoever is owner of the land for the time being is bound to pay the tax, as when there is a particular estate in one person with a remainder to an- other, the case of landlord and tenant, when rent is reserved, forms an exception to the rule, "for the rent is in lieu of the land, and the landlord is in the pernancy of the profits of the land, the profit of the tenant being the fruit of his own labor. Hence, in such cases, the landlord is bound to pay the tax, and if the tenant be compelled to pay, he may recover from the, land- lord or deduct the amount out of the rent. ' '^ But in that case it is decided that, if no rent is reserved, the tenant is liable for the tax, since, in such case, the landlord "receives nothing in lieu of the land, and the entire profits are enjoyed by the tenant," who consequently "does not come within the reason for making the case of ordinary tenants paying rent, an exception to the general rule."* On principle, it seems, one holding under a lease for life ^hould stand exactly in the same position, as regards freedom from liability for taxes, as one holding under a lease for years, but a different view has been taken in two cases, it being decided that such a tenant is under the same obligation to 1 See Bettison v. Budd, 17 Ark. at tax sale, see ante, § 78 i (1), 546, 65 Am. Dec. 442; Clinton v. and as to the position of a purchaser Shugart, 126 Iowa, 179, 101 N. W. at a tax sale as regards the tenant, 785; Weichselbaum v. Curlett, 20 see ante, § 78 n (3). Kan. 709, 27 Am. Rep. 204; State v. = Willard v. Blount, 33 N. C. (11 Campbell, 23 La. Ann. 445; Phila- Ired. Law) 624, per Pearson, J. delphla W. & B. R. Co. v. Appeal 3 The Connecticut statute (Gen. Tax Court, 50 Md. 397; Speed v. St. St. 1902, § 2341) provides that an Louis County Ct., 42 Mo. 382; Leach estate for life or years "by gift or V. Goode, 19 Mo. 501; East Tenn- devise and not by contract" shall essee, V. & G. R. Co. v. City of Mor- be assessed to the person in pos- ristown (Tenn. Ch. App.) 35 S. W. session, unless it is otherwise ex- 771; Hart v. Hart, 117 Wis. 639, 94 pressly provided. Consequently an N. W. 890. That the landlord is, in estate for years created by lease for the ^sence of agreement otherwise, the purpose of mining is taxable to liable for special assessments, see the reversioner. Sanford's Appeal, cases cited post, § 143 c (4). 75 Conn. 590, 54 Atl. 739. As to tenant's right to purchase 840 TAXES. § 139 pay taxes as is one to whom land is limited for life, with re- mainder to another.* By the statutes of some states, the tax may be collected by the taxing authorities directly from the tenant, but this is merely for the sake of convenience of collection, and such statutes invariably, it is believed, contain provisions allowing the tenant to deduct from the rent payments of taxes made by him, or to collect the amount thereof by action against the landlord.^ A so-called "lease" to one and his heirs and assigns, for a sum paid in advance, vests the absolute ownership in the "les- see," even though the lease is subject to forfeiture in certain contingencies, and he is consequently liable for the taxes.^ Such a "lease" is in fact the conveyance of the fee J And so in Penn- sylvania it has been decided that the owner of a rent reserved on a conveyance in fee is not liable for the taxes on the land." But in Missouri it has been decided that a lease "forever" of a rail- road bridge, subject to a forfeiture for breach of certain cove- nants, did not render the lessee the "owner" within the statute taxing such bridges.^ * Carter v. Youngs, 42 N. Y. Super. State v. Blundell,#24 N. J. Law (1 Ct. (10 Jones & S.) 418; Prettyman Zab.) 402; Smith v. Specht, 28 N. V. Walston, 34 III. 175. In the lat- J. Bq. 47, 42 Atl. 599; Hammon v. ter case no reference is made to the Sexton, 69 Ind. 37; Newburyport fact that the tenant holds under a Turnpike Corp. v. Upton, 12 Mass. lease, and the court merely cites 575; Lynde v. Brown, 143 Mass. 337, decisions stating the general rule 9 N. E. 735; Caldwell v. Moore, 11 that a life tenant must keep down Pa. 58. the taxes. e Connecticut Spiritualist Camp- 5 DeZotoare Rev. Code 1893, p. 876 ; meeting Ass'n v. Town of East 3 Bums' Ann. St. Indiana 1901, § Lyme, 54 Conn. 152, 5 Atl. 849. 8596; Maryland Code Pub. Gen. Laws 7 The court in the above cited case 1904, art. 81, § 66; Massachusetts says that it is a "determinable or Rev. Laws 1902, c. 12, §§ 15, 20; base fee." According to the com- 1 Gen. St. New Jersey, p. 554, § 449 ; mon-law authorities it Is rather a 3 Gen. St. p. 3287, § 33; New York jg^ ^^^^^^ ^^^,^^^^ ^^ ^ condition sub- Rev. St. (9th Ed.) vol. 2, p. 1704; ^eq^g^^. Bell. & C. Codes Oregon, § 3145; " „„^.,' , ^. -, .^ „ J. T • . T^- „ , 8 Philadelphia Library Co. v. Ing- Pepper & Lewis' Dig. Pennsyl- vania, Landl. & Ten. §§ 2, 3; Vir- ^^"^^ ^ ^^^^- ^^^-^ ^2; Irwin y. ginia Code 1904, §§ 624, 630 (Ten- ^ank of United States, 1 Pa. 349; ant's goods liable to amount of rent Franciscus v. Reigart, 4 Watts (Pa.) if landlord's goods exhausted) ; Wis- 98, 39 Am. Dec. 60. consin Rev. St. 1898, § 1154. See » State v. Mississippi River Bridge § 141 ON IMPROVEMENTS AFTER DEMISE. §41 The view taken in this country, that the landlord is the person to pay the taxes, is entirely different from that taken in England. There the taxes are always payable by the tenant, and even though, in the ease of one or two classes of taxes, the statute pro- vides that the tenant may, upon paying them, deduct thfem froin the rent, such a tax is still, as regards the public, a tax on the tenant and not on the landlord, since its payment can be en- forced only against the former. s 140. Effect of exemption of landlord. Although, as between the landlord and tenant, the landlord is ordinarily liable for the taxes, the tenant does not escape lia- bility to taxation upon his interest in the land merely because the property of the landlord is not taxable, as in the case of a lease by the state or by a state agency.^** And this is a fortiori the case as regards improvements made by the tenant during the term.i * 5 141. Tax on improvements made after demise. s Improvements which are removable by the tenant at the end of the term have been regarded as properly taxable to him and not to the landlord, '- and the fact that the landlord has agreed to pay the value of the improvements at the end of the term does not impose on the landlord any obligation in this regard not otherwise existent.^" Such an agreement has even been regarded Co., lOSr Mo. 253, 19 S. W. 421; Id., Taxes & Assessments, 80 N. Y. 573; 134 Mo. 321, 35 S. W. 592. East Tennessee, V. & G. R. Co. v. 10 Ex parte Gaines, 56 Ark. 227, 19 City of Morristown (Tenn. Ch. App.) S. W. 602; Morris Canal & Banking 35 S. W. 771. In Phinney v. Foster, Co. V. Haight, 36 N. J. Law, 471; 189 Mass. 182, 75 N. E. 103, a cov- Pall V. City of Marysville, 19 Cal. enant by the lessor to save the lessee 391. In Illinois it is so provided by harmless from all taxes levied on Statute. Kurd's Rev. St. 1905, c. 120, the "premises" was construed In S 60. See People v. International view of the context to Impose no Salt Co., 233 111. 223, 84 N. E. 278. liability on the lessor for taxes on 11 San Francisco v. McGinn, 67 the tenant's improvements, and the Cal. 110, 7 Pac. 187; Burbank v. lessor, having paid such taxes, was Board of Assessors, 52 La. Ann. 1506, held to be entitled to recover them 27 So. 947 (even though to belong to from the lessee. landlord at the end of the term). is Leach v. Goode, 19 Mo. 501. 12 People v. Commissioners of 842 TAXES. § 142 as showing that the improvements in the meanwhile belong to the tenant and are as such taxable to him.** On the other hand, the fact that the lease provides that certain improvements to be erected by the tenant shall "become" the property of the land- lord at the end of the term has been held not to defer until then the latter 's ownership of the improvements for the purpose of taxation.!" In one state it has been decided that improvements erected by the lessee under a "perpetual lease" from a munici- pality are subject to taxation by the municipality.*^ Such a lease, indeed, would seem to make the lessee the owner in fee simple of the land, and so subject to taxation as regards the' land as well as the improvements. § 142. Indemnification of tenant paying tax. The English cases are to the effect that if the tenant pays taxes on the premises which, as between him and the landlord, it is the duty of the latter to pay, he may deduct the amount of such payment from the installment of rent next falling due,*'' or may sue the landlord for the amount thereof, if the landlord has ex- pressly assumed the tax,** or if the latter is by force of the stat- ute directly liable for the tax.*" It is further decided, hov/ever, that the deduction of the rent thus paid by the tenant must be made from the installment of rent next falling due, for that if the tenant pays the rent in full after having paid the tax, such fresh payment of the amount of the tax, unless made to avoid distress for rent,^'' is voluntary, and cannot afterwards be re- covered by him by action.^* nor be deducted from the rent sub- sequently aceriiing-- 1* People V. Brooklyn Board of m Graham v. Tate. 1 Maule & S. Assessors, 93 N. Y. 308. 609; Baker v. Greenhill, 3 Q. B. 148. 15 People V. Barker, 153 N. Y. 98, 21 Denby v. Moore, 1 Barn. & AW. 47 N. E. 46. 123; Saunderson v. Hanson, 3 Car. & iBLuttrell V. Knox County, 89 P. 314; Gumming v. Bedborough, 15 Temi. 253, 14 S. W. 802. Mees. & W. 438; Spragg v. Ham- " Graham v. Tate, 1 Maule & S. mond, 2 Brod. & B. 59. 609. 22 Andrew v. Hancock, 1 Brod. ft IS Watson V. Home, 7 Barn. & C. B. 37; Stubbs v. Parsons, 3 Barn. & 285. Aid. 516; Dawes v. Thomas [1892] loEarle v. Maugham, 14 C. B. (N. 1 Q. B. 414. S.) 626. § 143 CONTRACT BY LESSEE. 843 In this country it seems that, the landlord being primarily liable for the tax, the tenant would have the clear right to deduct the amount of taxes paid by him from the next installment of rent, or to recover the same by action, provided, at least, the payment by the tenant could be regarded as under compulsion, as when it is made to prevent a distress for the taxes on his chat- tels, or to prevent a sale for taxes, which would have the effect of destroying his leasehold interest or right of occupaney.''3 As before stated, in several states where the statute provides that the taxes may be collected from the tenant in the first instance, he is expressly given the right to deduct the amount thereof from the rent or to recover it by action.^* Under a provision in the in- strument of lease that the taxes shall be reimbursed by the lessor to the lessee, the latter is entitled to reimbursement annually, it has been held, and is not obliged to wait till the end of the term.25 • § 143. Contract by lessee to pay taxes. a. Language evidencing contract. Quite frequently the lease contains a coveuaqt on the part of the lessee to pay the taxes on, the premises.2^ By the English cases a liability is imposed on the lessee, for taxes which otherwise he could claim from the landlord, by his agreement to pay rent "clear of all taxes, charges and impositions,"^" or "without any deduction or abate- rs See Rogers v. McKenzie, 73 N. C. lessee was to lose his leasehold by 487; - Walker v. Harrison, 75 Miss, sale under the lien, it was held that 665, 23 So. 392; Williams v. Towl, the stipulation amounted to an ap- 65 Mich. 204, 31 N. W. 835; Waggen- propriation of a reserved fund out er V. McLaughlin, 33 Ark. 195. In of the rent to the payment of taxes, the latter case It Is decided that the and that the lessee had a right to tenant paying the tax has a lien on deduct the amount of the taxes from the land for reimbursement. the rent as against a garnishing In McPherson v. Atlantic & P. creditor of the lessor. R. Co., 66 Mo. 103, where the lease 2* See ante, at note 5. entitled the lessee to deduct from the 25 Boutte v. Dubois, 11 La. Ann. rental all taxes which he had paid, 755. or might be liable to pay, and the 26 Hurd's Rev. St. 111. 1905, c. 6, 5 law imposed no personal liability 9, provides that no alien lessor of for taxes on anyone, but the taxes farming lands can provide for pay- were a lien on the land, and conse- ment of taxes by the tenant, quently the only liability of the 27 Giles v. Hooper, Garth. 135. So 844 TAXES § 143 ineiit,"28 or "free from all outgoings "29 or to pay a "net rent."*'* b. Payment as rent. In a few cases the covenant to pay taxes has been regarded as one to pay them as part of the rent. Thus, where one occupied another's land by permission, in considera- tion of his making repairs and paying taxes, it was apparently considered that the landlord had a lien for the amount of the taxes as for rent,°i and it has been decided that the amount of the annual taxes which the lessee agreed to pay coiild be re- covered in a suit on a bond given by the lessee to secure rent.^^ In some of the cases the view that such a covenant is equivalent to one to pay rent is based upon a construction of the particular language used as showing an intention to that effect.^^ There are, on the other hand, cases clearly to the effect that taxes agreed to be paid are not part of the rent,^* and there is much to be said in support of such a view.^*'' c. Taxes within the contract — (1) Taxes levied after de- mise. Questions sometimes arise as to whether the lessee's cove- nant to pay taxes is broad enough to cover a particular tax, hav- ing regard to the time of the assessment or levy of the tax. It has been decided that a covenant by the lessee to pay all taxes "during the existence of the lease" does not extend to taxes assessed before, but payable during the term.^^ ^juj gg a cove- nant by the lessee that he will pay all taxes "which may be law- fully levied and assessed" was construed as not binding him for a tax previously assessed and levied, which was already, under in Semmes v. McKnight, 5 Cranch, Manus v. Fair Shoe & Clothing Co., C. C. 539, Fed. Gas. No. 12,653. 60 Mo. App. 216. 28 Bradbury v. Wriglit, 2 Doug. 32 Neagle v. Kelly, 146 111. 460, 34 624. N. E. 947. 20 Parish v. Sleeman, 1 De Gex, F. -is Gedge v. Shoenberger, 83 Ky. & J. 326. 91; Knight v. Orchard, 92 Mo. App. s» Bennett v. Womack, 7 Barn. & 466; Perrin & Smith Printing Co. C. 627. V. Cook Hotel & Excursion Co., 118 31 Roberts v. Sims, 64 Miss. 597, 2 Mo. App. 44, 93 S. W. 337. So. 72; Gedge V. Shoenberger, 83 Ky. s* People v. Swayze, 15 Abb. Pr. 91. In the latter case where the (N. Y.) 432; Hodgkins v. Price. 137 lease was at a yearly rental named, Mass. 13. So as to "water rents," "also to pay all taxes and assess- Evans v. Lincoln Co., 204 Pa. 448, ments," the court thought that this 54 All. 321. was evidently intended as an agree- s^a See post, § 169 h. ment to pay the taxes as a part of the sb McManus v. Fair Shoe & Cloth- rent. This case is approved in Mc- ing Co., 60 Mo. App. 216. § 143 CONTRACT BY LESSEE. !^45 the statute, a charge on the property and a debt of the lessor.^" A lessee who agreed to pay the taxes becoming due after the date of the lease was held liable for taxes which became certain as to amount only after that date, by reason of the action of the board of supervisoi's in then setting down on the rolls, previously prepared, the amounts to be paid on each piece of property.^'' A tax not due and payable till after the term, it has been held, is not within a covenant to pay all taxes to be "levied" during the term, the levy being regarded as not taking place till the tax books were placed in the hands of the coUector.^s g^t a different construction was placed upon a covenant to pay all taxes "assessed or levied" during the term.s^ And under a pro- vision that the lessees should pay all taxes "laid, levied or charged upon" the property during the term, the lessee was held liable for taxes assessed during the term, taxes being "laid" when they are assessed, and the assessment was regarded, for this purpose, as including only the listing and valuation of the land, and the subsequent action of the board of equalization, and not the determination of the rate of taxation.'"' A covenant to pay "all assessments and taxes that may be levied on or claimed from" the land during the term, has been held to include gen- eral taxes payable during the term, and also a special tax- be- coming a lien on the property during the term.*i Taxes duly levied, charged, and confirmed during the term have been regarded as within a covenant to pay "all taxes, levies or assessments during the continuance of the lease," although not payable till after the term.*^ A like construction has been placed even on a covenant "to pay all the taxes and assessments whatsoever, whether in the nature of taxes now in being or not, which may be payable for and in respect of said premises, or any part thereof, during said term."*'' 36 Cleveland v. Spf-ncer, 39 C. C. ii Clemens v. Knox, 31 Mo. App. A. 559, 73 Fed. 559. 185. 37 Skidmore v. Hart, 13 Hun (N. " Craig v. Summers, 47 Minn. 189, 49 N. "W. 742, 15 L. R. A. 236. Y.) 441. 38Valle V. Fargo, 1 Mo. App. 344. 39 Waterman v. Harkness, 2 Mo. 43 Wilkinson v. Libbey, 83 Mass. (1 Allen) 375. And to the same gen- eral effect, see Richardson v. Gordon,. ^PP- *^*- 188 Mass. 279, 74 N. E. 344; Ogden v. *o Elliot V. Gantt, 64 Mo. App. Qgtty, 100 App. Div. 430, 91 N Y. 248. Supp. 664. 846 TAXES. § 143 The fact that, in a lease expiring in October, 1874, a covenant by the lessee to pay all taxes assessed during the term was follow- ed by the words "including taxes for the fiscal yea;r 1873-1874," was held not to relieve the lessee from liability for the taxes for the fiscal year 1874-1875, which were levied and became a lien during the term, but that the quoted words must be regarded as surplusage.** (2) Tax laws enacted after demise. In a number of quite early English cases the question was considered whether a cove- nant in a lease to pay taxes included taxes imposed by virtue of a law enacted after the date of the lease.*^ The rule recognized and adopted in these cases is, as stated in the course of a de- cision rendered in this country, "that if the tax or assessment be made under a law existing at the time of the covenant, it is within it ; or if there be no law existing at the time authorizing or requiring it, but it is afterwards enacted, still, if the assess- ment or tax be of the same kind with taxes or assessments made under former acts, it is presumed to have been in the contempla- tion of the parties, as a tax in viris, though not m esse. But if such tax or assessment be different in kind from such as have been theretofore in esse, it is not to be presumed that the parties contemplated any unusual exercise of power in the legislature, such as it had never before exercised."*^ Accordingly, in the ease from which this quotation was made, it was decided that a covenant to pay all taxes and assessments that might be assessed upon the premises did not bind the lessee for the payment of l>enefits assessed upon property for the improvement of adjoining streets, under an act passed after the making of the lease, the cost of such improvements having previously, in that state, been paid for out of the general taxes. Usually, however, a covenant to pay taxes and assessments has been regarded as covering spe- cial assessments for local improvements under an act passed sub- sequently to the date of the lease.*'^ Such an effect has been *i Blythe v. Gately, 51 Cal. 236. lo Love v. Howard, 6 R. I. 116. *5 Davenant v. Bishop of Sarum, 2 47 post v. Kearney, 2 N. Y. (2 Lev. 68; Hopwood v. Barefoot, 11 Comst.) 394, 51 Am. Dec. 303; Gamer Mod. 240; Brewster v. Kldgill, 12 v. Hannah, 13 N. Y. Super. Ct. (6 Mod. 166; Brewster v. Kitchin, 1 Ld. Duer) 262; Bleecker v. Ballou, 3 Raym. 317; Giles v. Hooper, Garth. Wend. (N. Y.) 263. 135. § 143 CONTRACT BY LESSEE. g47 given in one state to a covenant to pay "all the taxes, rates, charges and assessments which shall or may from time to time, and at any time, during- the term, be levied, assessed or made on the demised premises, or in respect of the same for or on account of any matter or any cause whatever," although, at the date of the lease, special assessments for local improvements were un- known, the court saying' that the full language of the covenant showed an intention to cover every form of civil imposition.** And the same effect has there been given to a covenant to pay "all taxes and assessments levied on the premises during the term."" (3) Invalid taxes. A tenant assuming the payment of all taxes on the premises thereby assumes only such taxes as may be legal and valid.^" But where the lessee, having assumed the taxes, afterwards agreed with the lessor that, if the latter would pay a particular tax which had been imposed, he, the lessee, would repay the lessor, and the lessor accordingly paid it, the lessee was held liable in an action for money paid, though the tax was illegal and uncollectible.^* (4) Special assessments. The cases are generally to the ef- fect that a covenant by the lessee to paj' the taxes on the premises does not require him to pay special assessments imposed for local improvements.^^ And so it has been held that the lessee, cove- nanting to pay all taxes, state, city and parish, and to keep the sidewalks in repair, was not bound to pay an assessment for pav- ing the street.^^ Even a covenant to pay a certain rent "besides all taxes and other public dues in any manner accruing" has been held not to include such an assessment. 5* In Iowa, how- is Walker V. Whlttemore, 112 Co., 167 111. 215, 47 N. E. 3C7; Ittner Mass. 187. V. Robinson, 35 Neb. 133, 52 N. W. *»Simonds v. Turner, 120 Mass. 846; Beals v. Providence Rubber Co.. 328. 11 R- I. 381, 21 Am. Rep. 472; Mc- 50 Clark v. Coolidge, 8 Kan. 189; Vickar Gaillard Realty Co. v. Gartb, Scott V. Society of Russian Israel- 111 App. Div. 924, 97 N. Y. Supp. ites, 59 Neb. 571, 81 N. W. 624; 640. Hart V. Town of Cornwall, 14 Conn. ss Municipality No. 2 v. Curell, 13 228. See New York El. R. Co. v. La. 318. Manhattan R. Co., 63 How. Pr. (N. b* Boiling v. Stokes, 2 Leigh (Va.) Y.) 14. 178, 21 Am. Dec. 606. In this case, siSoulard v. Peck, 49 Mo. 477. Brooke, J., says: "The words of 52 De Clerq v. Barber Asphalt Pav. the covenant may be satisfied by the 848 TAXES. § 143 ever, an agreement by the lessee to pay ' ' all taxes assessed on the lot during the continuance of the lease" was held to include as- sessments for paving and curbing, even though this language was followed by the words ' ' to wit, for the years, ' ' enumerating the calendar years covered by the lease.^^ And in Missouri a covenant to pay both general and "special" taxes has been re- garded as showing prima facie an intention that the lessee shall pay a special assessment for street improvements.^^ A covenant by the lessee to pay all "assessments" on the property is held, in this country, to make him liable for the amount of special assessments for local improvements.^'^ And the same effect has apparently been given to the word "duties," it havLag been decided that the lessee was bound for special as- sessments when he covenanted to pay "all taxes and duties levied or to be levied" during the terra,^^ or "the rates, taxes and duties application of them to the ordinary Pump Co., 22 Mo. App. 8; Lucas v. and usual taxes and public dues. McCann, 50 Mo. App. 638. To extend them to an expense un- A covenant to comply with and known by the parties, incalculable execute all laws, orders and regu- as to amount, uncertain as to time, lations of the state or municipal and in which the lessee could have authorities does not involve an ob- no certain interest, would be to dis- ligation to pay special assessments, regard all the circumstances under McVickar Gaillard Realty Co. v. which the contract was made. It Garth, 111 App. Div. 924, 97 N. Y. is impossible to -suppose that a sum Supp. 640. so uncertain in amount, and which st Codman v. Johnson, 104 Mass. might be as large as the sum that 491; Post v. Kearney, 2 N. Y. (2 was in fact paid, could have been Comst.) 394, 51 Am. Dec. 303; Griffen taken into the calculation of the v. Phoenix Pottery Co., 14 Wldy. value of the lot at the time the lease Notes Cas. (Pa.) 266, afg. 16 Phila. • was made." But now in Virginia 569; Vorse v. Des Moines Marble (Code 1904, § 2453), as well as in & Mantel Co., 104 Iowa, 541, 73 N. West Virginia (Code 1906, § 3069), W. 1064; Borgman v. Spellmire, 4 it is provided that a covenant by Ohio N. P. 416, 7 Ohio Dec. 344, 22 the lessee "to pay the taxes" shall Am. Dec. 759; City of New York v. have the effect of a covenant that Cashman, 10 Johns (N. Y.) 96 all taxes, levies and assessments (lease providing for payment by upon the demised premises, or upon lessee of "all taxes, assessments, im- the lessor on account thereof, shall positions and payments"^ ; Oswald be paid by the lessee or those claim- v. Gilfert, 11 Johns. (N. Y.) 443 ("all ing under him. taxes and assessments of every 65 Caasaday v. Hammer, 62 Iowa, kind"). 359, 17 N. W. 588. ss Blake v. Baker, 115 Mass. 188. 58 Thomas v.Hooker-ColvilleSteam § 143 CONTRACT BY LESSEE. 849 of every kind « * * that shall be levied or assessed on the premises or on the lessors of the same. ' '^9 As before stated, a covenant to pay taxes and assessments is regarded as covering special assessments imposed under a statute later than the lease, provided at least they are of the same na- ture as assessments previously in existence in that jurisdiction.*'* Paving with Belgian blocks, at a cost twice the annual rental of the property, a street previously paved with cobble stones, has been held to be chargeable to the lessor and not to the lessee, under a provision in the instrument of lease that the lessee should pay assessments for paving and repairing adjoining streets, but that the lessor should pay those for public purposes of an extraor- dinary character and for permanent improA-^ements.^^ Though the work is done before the beginning of the term, it is regarded as "assessed" during the term for the purpose of a covenant by the lessee, if the certificate was issued, and the amount thereof inserted in the assessment roll during the term.** The liability of the lessee for the whole amount of an assess- ment, under his covenant to pay all assessments, is not diminished by the fact that both he and the lessor have been allotted dam- ages for injury to their interests caused by the improvement, and he cannot ask that his liability to the lessor be reduced by the 5» Curtis V. Pierce, 115 Mass. 186. case the covenant was to pay "taxes But in the earlier case of Twycross and assessments," but a distinction V. Fitchburg R. Co., 76 Mass. (10 in this respect is not suggested. Gray) 293, it was held that the In Torrey v. Wallis, 57 Mass. (3 lessee's covenant "to pay all taxes Cush.) 442, a provision that the or duties levied or to be levied" on lessee should pay all costs, charges the premises did not make him liable and expenses, except the yearly tax- for the cost of a sidewalk construct- es, was construed, in connection with ed by the city for which the lessor the context, to refer only to the ex- had paid, the city being authorized penses of additions and repairs to by the statute to do the work at the be made by the lessee, and not to owner's expense if the latter refused charges for street improvements. to do it. This case is distinguished oogee ante, § 143 c (2). in Codman v. Johnson, 104 Mass. oi Ten Eyck v. Rector, etc., of 491, on the ground that in the earlier Protestant Episcopal Church, 141 N. case the burden was imposed by the Y. 588, 65 Hun, 194, 36 N. B. 739, afg. statute on the owner personally, 29 Abb. N. C. 150, 20 N. Y. Supp. 157. and it was not levied on the estate »2 Shepardson v. Elmore, 19 Wis. nor made a lien on it. In the later 424. L. and Ten. 54. 850 TAXES. § 14a amount of damages which the lessor has received.*^ Nor is his liability thereunder affected by the fact that the officials having the improvement in charge have undertaken to apportion the benefits between the lessor and the lessee.^'' It is likewise imma- terial that, after the making of the lease, a statute was passed providing that the owner of land leased should pay any assess- ment thereon and might collect of the lessee an additional rent equal to ten per cent per annum on the net amount so paid by him.«5 It has been decided that a provision of the statute that the "owner" of a lot, assessed for street improvements, may pay the assessment in yearly installments instead of immediately, upon waiving any illegality therein and agreeing to pay it with interest, did not enable the lessee so to defer the payment of part of the assessment until after the end of the term, and thereby free himself from liability therefor.''^ In England the word "assessments" in a covenant of this character has been held not to apply to municipal charges for street paving,^''^ while the word "duties" has been regarded as broad enough for this purpose."* A covenant to pay "duties" imposed on the premises- has been there held also to apply to a charge for putting a new drain in the premises upon the demand of the municipal authorities."^ The same, or a somewhat broader, effect has been there given to covenants to pay "impositions,"'^" "charges imposed "^i and " outgoings. "^2 03 Trinity Church v. Cook, 11 Abb. es Thompson v. Lapworth, L. R. 3 Pr. (N. Y.) 371, 21 How. Pr. 89; C. P. 149. Arthur v. Harty, 17 Misc. 641, 40 es Budd v. Marshall, 5 C. P. Div. N. Y. Supp. 1091. 481; Brett v. Rogers [1897] 1 Q. B. e* Arthur v. Harty, 17 Misc. 641, 525; Farlow v. Stevenson [1900} 1 40 N. Y. Supp. 1091. Ch. 128. 05 Walker v. Whittemore, 112 Mass. 70 Foulger v. Arding [1902] 1 K. B. 187. See Mass. Rev. Laws, c. 50, § 8. 700; In re Warriner [1903] 2 Ch. 66 Verse V. Des Moines Marble & 367; Goldstein v. HolUngsworth Mantel Co., 104 Iowa, 541, 73 N. W. [1904] 2 K. B. 578. 1064. 71 George v. Ooates, 88 Law T. ( N. 6'Tidswell v. Whitworth, L. R. 2 S.) 48. C. P. 326; Allum v. Dickinson, 9 72 Aldridge v. Feme, 17 Q. B. Div. Q. B. Div. 632; Wilkinson v. Collyer, 212; Stockdale v. Ascherberg [1903] 13 Q. B. Div. 1; Baylis v. Jiggens 1 K. B. 873 [1904] 1 K. B. 447; Har- [1898] 2 Q. B. 315. ris v. Hickman [1904] 1 K. B. 13. I 143 CONTRACT BY LESSEE. 851 (5) Miscellaneous cases. An agreement by the lessee to "pay all assessments whatsoever levied" has been held to refer only to charges for local improvements, and not to make him liable lor general state, county and city taxesJ^ A covenant by the lessor to hold the tenant harmless from all taxes for city purposes but no others vphatever, has been re- garded as shovsring an intention that other taxes should be paid by himJ* A statutory provision for a tax on corporate receipts and earnings "by way of license for its corporate franchises" was held to provide for a license fee for the exercise of the corporate franchise and not for a tax on the franchise, and consequently not to be within a covenant by the lessee to pay taxes on the corporate propertj' and franchises'^ An increase of taxes upon the demised premises after the exe- cution of the lease will, it has been considered, be presumed to be the result of an improvement made by the tenant, for the purpose of imposing on him liability under a covenant to pay any increase in taxes due to improvements which may be made by him."'^ A covenant by the lessee to pay all taxes "on the premises" or "assessed" on the lessor "for and in respect of the premises" has been held not to extend to a tax imposed on the rent as the property of the lessor,'^' and the same view was taken of a cove- nant binding the lessee to pay all taxes imposed or assessed on the "demised premises," or on the lessors "in respect thereof."^* So it has been held in another state that one to whom land is The above is but a partial statement Co., 96 App. Div. 436, 89 N. Y. Supp. of the eHect of the numerous English 340; Lewiston & A. R. Co. v. Grand cases construing such covenants. Trunk R. Co., 97 Me. 261, 54 Atl. 750. See Fawcett, Landl. & Ten. (3d Ed.) '6 Bichner v. Cohen, 48 Misc. 541, 388-395; Woodfall, Landl. & T. (16th 96 N. Y. Supp. 279. And see, as to Ed.) e. 15. a somewhat similar covenant, Grid- 73 Stephani v. Catholic Bishop of ley v. Einbigler, 98 App. Div. 160, Chicago, 2 III. App. (2 Bradw.) 249. 90 N. Y. Supp. 721; Id., 182 N. Y. ri Cincinnati College v. Yeatman, 566, 75 N. E. 1130. 30 Ohio St. 276. ^^ Van Rensselaer v. Dennison, S 75 Jersey City Gaslight Co. v. Barb. (N. Y.) 23. United Gas Imp. Co., 46 Fed. 264. ''« Woodruff v. Oswego Starch Fac- See, also, as to a franchise tax, tory, 70 App. Div. 481, 74 N. Y. Supp. Security Trust Co. v. Liberty Bldg. 961. 852 TAXES. § 143 granted in fee subject to a rent is not liable for a tax on the rent, under his covenant to pay all taxes on the premisesJ" d. Apportionment of tax. One who, in taking a lease of part of a piece of property which is taxed as a whole, agrees to pay taxes, is liable for a proportionate part of the taxes,*" and the fact that the lessor has never requested the assessors to assess such part separately is immaterial.**^ The apportionment should, it has been held, be according to a usage which existed in that locality, to apportion the taxes for this purpose with reference to the rents paid.*^ A provision in a lease of part of a building that "in case the taxes now levied on said premises should be increased," the lessee shall pay such increase, was held to bind him to pay the increase in the taxes on the whole building, this construction of the covenant being, however, in part based on the fact that the lessee had already acquired the leasehold interest in the balance of the building.ss e. Effect of exemption. A covenant by the lessee, upon a lease from a city, to pay all taxes on the premises, has been held not to involve payment by the lessee of taxes on the reversionary interest of the city, this being exempt from taxa- tion.s* But where a lease by a charitable association provided that the tenant should pay all taxes, an act subsequently passed exempting the property from taxation, so long as used for charitable purposes, was held not to relieve the lessee from the obligation of paying the amount of the taxes to the lessor, the act having been evidently intended for the benefit of the chari- table society and not of the lessee.*'' The fact that the lessee's property is by statute exempt from taxes does not, it has been held, exempt the property leased, although the lessee has covenanted to pay the taxes.** '9 Robinson v. Allegany County, 7 83 Stimson v. Crosby, 180 Mass. Pa. 161; Peart v. Phipps, 4 Yeates 296, 62 N. E. 267. (Pa.) 386. 81 Philadelphia, W. & B. R. Co. v. 30 Williams V. Craig, 2 Bdw. Gh. ^ j ,j,ax Court, 50 Md. 397. „': „. , „„ „ ,/ 85 German Soc. V. City of Philadel- 81 Wall V. Hinds, 70 Mass. (4 Gray) 256, 64 Am. Dec. 64. P^'^' ^ ^^^^- (^^^ ^45. 82Codman v. Hall, 91 Mass. (9 «« Com. v. Chesapeake & O. R. Co., Allen) 335; Amory v. Melvln, 112 94 Ky. 16, 21 S. W. 342. Mass. 83. § 143 CONTRACT BY LESSEE. 853 f. Availability of contract to taxing power. In one case it has been decided that, when there is a covenant by the lessee to pay the taxes, the city must proceed against the tenant's proper- ty, in the first instance, to collect the tax, if it has notice of the "landlord's equity," unless there exists some "countervailing equity," and that it may be enjoined from first proceeding against the landlord or his property.*^ The soundness of the view that the taxing power should thus be hampered in the col- lection of taxes by a covenant to which it is not a party may perhaps be doubted. In another state there is a holding that such a covenant does not justify a personal judgment against the lessee in favor of the municipality for the amount of a special assessment for public improvements, such personal liability being purely statutory and against the owner of the property only.^^ But it has elsewhere been decided that a lessee under a lease for twenty-five years covenanting fco pay 'taxes may be regarded as the "owner" for the purpose of assessment.^® g. Transfer of leasehold or reversion. A covenant by the les- see to pay taxes runs with the land, and consequently the as- signee of the leasehold interest is liable thereunder,8o and the lessor's transferee is no doubt entitled to the benefit thereof. "^ In New York it appears to have been decided that a covenant to pay taxes and assessments is continuous in its nature, so that the assignee is liable though the breach originally occurred before the assignment."- And in Missouri there is a decision to the ST Gouverneur v. City of New York, who takes an assignment in Peb- 2 Paige (N. Y.) 434. ruary is liable for them under the 88 Davis V. Cincinnati, 36 Ohio St. covenant. Trask v. Graham, 47 24. Minn. 571, 50 N. W. 917. 89 New York Guaranty & Indem- »i See Hendrix v. Dickson, 69 Mo. nity Co. v. Tacoma R. & Motor Co., App. 197; Vorse v. Des Moines Mar- 93 Fed. 51. We & Mantle Co., 104 Iowa, 541, 73 90 Salisbury v. Shirley, 66 Cal. 223, N. W. 1064. See post, § 149 b (2), 5 Pac. 104; Post v. Kearney, 2 N. note 112. In Ohio the transferee is Y. (2 Comst.) 394; Martin v. O'Con- regarded as entitled to sue thereon nor, 43 Barb. (N. Y.) 514; Trinity as being the party "beneficially in- Church V. Cook, 11 Abb. Pr. (N. Y.) terested." Broadwell v. Banks, 134 371, 21 How. Pr. 89; West Virginia, Fed. 470. See post, § 149 b (1). C. & P. R. Co. V. Mclntire, 44 W. Va. oaAstor v. Hoyt, 5 Wend. (N. Y.) 210, 28 S. E. 696. 603, 618; Coffin v. Talman, 8 N. Y. When taxes are payable in Janu- (4 Seld.) 465. See post, §| 149 b ary, but not delinquent till June, one (9), 158 a (2) (c). 854 TAXES. § 143, effect that the substantial breach oi; the covenant does not occur until the tax is paid by the covenantee, and that consequently the lessor's heir, having paid the tax after the lessor's death, is the proper party to sue on the covenant, rather than the per- sonal representative, although the tax became due and payable before the lessor 's death.^^ The assignee of the leasehold is liable for the taxes which become due after the assignment to him,. though they are on account of a period prior thereto.®^* An assignee of the leasehold in part of the premises is liable for a proportionate part of the tax, calculated, it seems, with reference to the value of such part as compared with that of the whole.9* The assignee of the leasehold is liable only for taxes which become due before his reassignment to another, his liability de- pending entirely on the privity of estate.^-'' Although the assignee becomes liable, the lessee is still liable on his covenant by reason of privity of contract, and if he is forced to pay the taxes he may in turn recover from his assignee, who is primarily liable.^® Although the lessor's transferee is entitled to the benefit of the covenant, the lessor, it has been decided, may also sue there- on, if he is under an obligation to his transferee, as by a covenant against incumbrances, to pay the taxes, and, they being a lien on the property at the time of the transfer, he pays them upon the lessee's failure so to do.^'^ h. Termination of liability. The fact that the lease provides that, on the destruction of the buildings by fire, the lessor may terminate the lease, and that he does terminate it accordingly, does not relieve the lessee from liability under his covenant for the taxes previously assessed,^* and a fortiori is he unable to re- 93 Hendrix v. Dickson, 69 Mo. App. 95 Mason v. Smith, 131 Mass. 510. 197. But ordinarily the right of See post, § 158 a (2) (n). action arises on the covenantor's 96 Mason v. Smith, 131 Mass. 510; failure to pay without any paymenC Wills v. Summers, 45 Minn. 90, 47 N. hy the covenantee. Post, at note W. 463. See post, § 157 a (2). 108. 97 Wills V. Summers, 45 Minn. 90, 93a McKeon v. Wendelken, 25 Misc. 47 N. W. 463. 711, 55 N. Y. Supp. 626. 98 Sargent v. Pray, 117 Mass. 267; 94 Ellis V. Bradbury, 75 Cal. 234, Paul v. Chickering, 117 Mass. 265; 17 Pac. 3. See ante, § 143 d. Carnes v. Hersey, 117 Mass. 269. § 143 CONTRACT BY LESSEE. 856 cover such taxes if they have been paid by him.'^" Nor does the fact that the lease provides for a suspension of rent upon the destruction of the building affect the liability under such cove- nant for the whole amount of the taxes.^"" It has been decided that a covenant to pay taxes in equal monthly installments is no Iqhger binding after eviction by the landlord, followed by the enforcement by him of a forfeiture for breach of condition.""* And a surrender by the tenant has been regarded as terminating all liability for taxes for the previous year, which were not yet due.ioo" The lessee's liability under his covenant is not affected by the fact that a part of the premises is taken for public use.^"! It has been decided that a release of the lessee fi"om "further" liability under the lease does not relieve him from liability for taxes already aecrued.i''^ The landlord's acceptance of rent after the lessee's breach of his covenant to pay taxes does not involve a waiver of his claim for breach of the covenant.^"* i. Time of payment. A covenant by the lessee to pay taxes when "due and payable" was held not to require him to pay them until after public notice by the receiver of taxes, as pro- vided by statute, that they were "due and payable."^"* Gener- ally the obligation of the lessee under his covenant is to pay the tax in time to avoid a sale of the lessor's property for non- payment, or the enforcement of personal liability for the tax igainst the lessor,!''^ and before any penalty or interest becomes due by reason of delay in payment.^s A covenant to pay the taxes "promptly" was regarded as broken by a failure to pay 99 Wood V. Bogle, 115 Mass. 30. los Conger v. Duryee, 90 N. Y. 594. looMinot V. Joy, 118 Mass. 308. lo* Whitman v. Nlcol, 38 N. Y. looaHall V. Joseph Middleby, Jr., Super. Ct. (6 Jones & S.) 528 (deci- 197 Mass. 485, S3 N. E. 1114. It gj^^ i,y ^^^ judges out of three), was said that in such a case there j„g McFarlane v. Williams, 107 111 is a "failure of consideration."- 33. ^,jg^ ^ ^^^^^ ^2 Tenn. (4 Lea) loob American Bonding Co. v. ^ x ,. ■ . , ,„ ^ . ^ 1-/1 ^^A 676 (so as not to become a burden Pueblo Inv. Co. (C. C. A.) loO Fed. ^ , „ . ,»T a \ ccT on the lessor). 17 9 L. R A. (N. S.) 557. X.1 Patterson v. City of Boston, 37 "« Ri^'i ^- Hart, 47 La. Ann. 1370, Mass. (20 Pick.) 159. " So. 878; Manice v. Millen, 20 102 0'FalIon V. Nicholson, 56 Mo. Barb. (N. Y.) 41. 238. 856 TAXES. I ]43 taxes due on the first of one month until the twelfth day of the second succeeding month.i"" j. Accrual of right of action. Upon the failure of the lessee to pay the tax in accordance with his covenant, the lessor may immediately sue for the breach, and it is immaterial whether he first himself pays the tax,i"* though the covenant may be framed so as to make the lessee liable only for failure to refund taxes previously paid by the lessor.'"" It has been decided that the lessor need not make demand upon the lessee for payment be- fore bringing suit,"" though in a case in which the lease pro- vided that in case of the lessee's neglect to pay a special as- \ sessment, the lessor might pay it and recover the amoiuit as rent, it was held that there was no breach of the lessee 's covenant until he was notified of the lessor's payment of the assessment.^*' In one state it has been decided that the fact that the leasehold interest is sold for the tax does not involve a breach of the cove- nant, since this does not affect the lessor."- k. Damages for breach. The lessor may recover, for breach of the lessee's covenant to pay taxes, the amount of the taxes,**'' ■wdth interest, it has been decided,*** but not the amount of a penalty imposed for nonpayment, since it is his, the lessor's dut^, to pay the taxes on the lessee's default in time to save the pen- alty.**^ And if the property is sold for the unpaid taxes, the 10'' Metropolitan Land Co. v. Man- m Dockrill v. Schpnk, 37 111. Apt). nlng, 98 Mo. App. 248, 71 S. W. 696. 44. 108 Broadwell v. Banks, 134 Fed. na Goode v. Ruehle, 23 Mich. 30.i 470; Wilkinson v. Llbbey, 83 Mass. us Fontaino v. Schulenburg it (1 Allen) 375; Bowditch v. Chicker- Boeckler Lumber Co., 109 Mo. 55, U ing, 139 Mass. 283, 30 N. B. 92; Trin- S. W. 1147, 32 Am. St. Rep. 648:1 Ity Church v. Higglns, 48 N. Y. 532; Sargent v. Pray, 117 Masis. 267 :i Hawkins v. Mosher, 13 Hun (N. Y.) Ellis v. Bradbury, 75 Cal. 234, 17; 563; Fontaino v. Schulenburg & Pac. 3; Richardson v. Gordon, 1881 Boeckler Lumber Co., 109 Mo. 55, 18 Mass. 279, 74 N. B. 344; Garner v. ' S. W. 1147, 32 Am. St. Rep. 648; Hannah, 13 N. Y. Super. Ct. (6 Verse V. Des Moines Marble & Mantel Duer) 262. Co., 104 Iowa, 541, 73 N. W. 1064. n* Ellis v. Bradbury, 75 Cal. ;234, 109 See Burnes v. McCuWjin, 3 Kan. 17 Pac. 3; Sargent v. Pray, 117 Mass. 221, 87 Am. Dec. 468; Dockrill v. 267. Schenk, 37 111. App. 44. iij Sargent v. Pray, 117 Mass. 267. 110 Davis V. Burrell, 10 C. B. 821; So it was decided that the lessee Hooper v. Woolmer, 10 C. B. 370. could not be charged with the § 144 WATER RATES. g57 lessor, it has been decided, cannot recover the value of the property, but is still restricted to the amount of the unpaid taxes, and the fact that he was a nonresident and had no actual notice of their nonpayment is immaterial in this regard." « § 144. Water rates. The question whether the landlord or the tenant is liable, as between themselves, for charges for water furnished to tht premises, is one of some difSculty, upon which the decisions are not in accord. In several jurisdictions it has been explicitly de- cided that the landlord is under no obligation to pay for watei used by the tenant, in the absence of any agreement to that ef- fect, although the premises are, at the time of the lease, fitted with pipes and fixtures intended for the distribution of water,ii" or the water is essential to the use of the premises for the pur- pose for which the lease was obtained, and for which it allows them to be used.^^* In one of the decisions to this effect, in answer to the argument that the water rate is a tax and there- fore is payable by the landlord, it is said: "Water, as supplied here, is a commodity which the tenant requires, but which he can purchase of others if he chooses to submit to that incon- venience. The price charged for it is not a tax any more than the price charged for gas, electricity, steam or coal, some of which are as necessary commodities as water. Nor does the fact that the city supplies water and a private corporation supplies gas make one a tax rather than the other.""* In New York, on the other hand, it is held that the charge for water must be paid by the landlord and not by the tenant using the water,i2o ij^t there amount of a penalty when the lease Rlcker, 173 Mass. 564, 54 N. E. 254; provided that the lessor might pay Sheldon v. Hamilton, 22 R. I. 230, 47 the taxes on the lessee's failure to Atl. 316; Stein v. McArdle, 24 Ala. pay them and that the amount so 344 (semble). paid should be regarded as additional us Leighton v.' Richer, 173 Mass. rent. "Webster v. Nichols, 104 111. 564, 54 N. B. 254. 160. 110 Sheldon v. Hamilton, 22 R. I. iieFontaino v. Schulenburg & 230, 47 Atl. 316. Boeclcler Lumber Co., 109 Mo. 55, 18 i2»Darcey v. Steger, 23 Misc. 145, S. W. 1147, 32 Am. St. Rep. 648. 50 N. Y. Supp. 638; Bristol v. Ham- iir McCarthy t. Humphrey, 105 macher, 30 Misc. 426, 62 N. Y. Supp. Iowa, 535, 75 N. W. 314 ; Leighton v. 517. In Jamesin v. Thomen, 24 858 TAXES. I 144 the charge is made by the statute a lien on the land, and is col- lectible as a part of the regular taxes on the property, and the person using the water is not subject to any liability therefor.^^i Even in that state the tenant was held liable for a charge for water which would not have been incurred had the tenant not used the premises in violation of a covenant in the lease, and the landlord, having paid such charge, was allowed to recover it from the tenant.^^^ In Maryland it has been assumed, without discussion, that the landlord must pay the ordinary water rates assessed according to the size of the building, while for water furnished in large quantities for particular uses by the tenant, and charged for according to metre measurements, the tenant was held liable.^^^ In two eases, at least, in which it is held that the landlord is not liable for the water charges, there are suggestions to tlie ef- fect that the case would be different if the charges were made a lien on the premises,!^* and, as stated above, the existence of such a lien is apparently one reason for the view taken in New York that the landlord must pay the charge rather than the tenant,^^^ the theory being, it seems, that since the charge is a lien on the lessor's property, it is to be regarded as his debt, and that the lessee cannot be regarded as assuming another's debt in the absence of an express stipulation to that effect. The liability for a water rate, as between landlord and tenant, may be fixed by the express terms of the lease, and this should always be done. In New York, where, as before stated, the land- lord is liable in the absence of express agreement, it has been de- Wkly. Law Bui. (Ohio) 334, it seems 22 R. I. 230, 47 Atl. 316, likewise, It to be held that if the lessee states is said that an agreement by the that he will not pay for the water, landlord to pay for water would be the landlord cannot thereafter pay much more readily inferred when for the water which had been turned the water is to be paid for according on by his order and recover the to the number of water appliances amount of the payment from the in the building than when the lessee. The opinion is obscure. charge is according to the metre 121 See MofCatt v. Henderson, 50 measurement. N. Y. Super. Ct. (IS Jones & S.) 211. 124 Sheldon v. Hamilton, 22 R. I. 122 De Forest v. Byrne, 1 Hilt. (N. 230, 47 Atl. 316; Leighton v. Ricker, Y-) 43. 173 Mass. 564, 54 N. E. 254. 123 Williams v. Kont, 67 Md. 350, 12= See ante, at note 120, 10 Atl. 228. In Sheldon v. Hamilton, § 144 WATER RATES. 359 cided that the lessee becomes liable under a covenant by him to pay all ordinary taxes and assessments.i^« On the other hand a covenant by the lessee to pay the regular annual charge for water vsras there held not to bind him for a charge for extra water, measured by metre.127 And a covenant to pay the water tax "assessed on the premises" was not regarded as including a rate for water furnished to other buildings on the same lot.^^s It has also been there decided that a covenant by the lessee of part of a building, to pay the annual water rent "assessed or im- posed according to law, ' ' did not require him to pay any part of the charge assessed by metre against the whole building, for the reason that it was not imposed according to law as regards his portion of the building until a separate metre was placed in that portion, to measure the water used therein.i^a Elsewhere it has been decided that a covenant by the lessee of a portion of a building to pay all water rents charged on the demised prem- ises did not require him to pay any portion of a rent assessed against the entire bmlding,!^'' and that a condition of re-entry for nonpayment of water rates did not authorize a re-entry for such nonpayment by a tenant of part of the building, when there was but one metre for the entire building, and the lessor had made no attempt to apportion the bill for water among the various tenants.^^i The fact that the lessor has paid the water rate for one year without objection has been decided not to show any agreement by him to pay such rates.^^^' A provision that the tenant shall pay his own water bills, it has been decided, is not merely intended to relieve the land- lord from any obligation to look after the bills, but involves a 126 Garner v. Hannah, 13 N. Y. for all the water used in the build- Super. Ct. (6 Duer) 262. ing. Myers v. Reade, 112 App. Div. 127 Moffat V. Henderson, 50 N. Y. 363, 98 N. Y. Supp. 620. Super. Ct. (18 Jones & S.) 211. "o Kingsbury v. Powers, 131 111. 128 Steinhardt v. Burt, 27 Misc. 182, 22 N. E. 479. 782, 57 N. Y. Supp. 751. "i Harford v. Taylor, 181 Mass. 120 Bristol V. Hammacher, 30 Misc. 266, 63 N. B. 902. 426, 62 N. Y. Supp. 517. AKter when isia Sheldon v. Hamilton, 22 R. I. there was a separate metre for the 230, 47 Atl. 316. Jamesin v. Tho- tenant's premises, even though a men, 24 Wkly. Law Bui. (Ohio) 334, single bill was rendered by the city seems to support a contrary view. 860 INSURANCE. § J45 covenant by the lessee to pay them, within a provision in the lease authorizing a forfeiture for breach of covenants.^** In England the water rates are payable by the tenant in the absence of agreement otherwise, and it has there been decided that a covenant by the lessor to pay all rates, taxes and imposi- tions whatsoever "imposed" by the city did not render him liable for a water rate, since a charge to which one is liable only by his own consent cannot be regarded as "imposed" on him.13* Likewise it was held that a covenant by the lessor to pay "all water rates imposed or assessed upon the premises or upon the lessor or lessee in respect of the premises" bound him for a rate calculated according to the annual value but not for water supplied for trade purposes by special agreement.^^* § 145. Insurance. a. In absence of contract. The tenant is, in the absence ot a contract in that regard, under no obligation to insure the buildings and other improvements on the premises for the benefit of the landlord.13^ Conversely, the landlord is under no such obligation towards the tenant, and the latter cannot claim any share in the proceeds of insurance taken out by the landlord for his own benefit.^*® Even though the insurance taken out by the landlord is in terms made payable to the tenant, the latter is not entitled, it has been decided, to appropriate the proceeds for his own purposes, it appearing that the parties intended that the money paid on the policy should be applied to replacing the building destroyed.^''' Since the contract of insurance on property is one of indemnity, the landlord cannot, if the lessee restores the buildings to their former condition, in accordance with the covenants of the lease, assert any claim against the insurer.i^* The landlord, having insured for his own protection, is not bound, in favor of the tenant, to expend the proceeds of the "2 Hand v. Suravitz, 148 Pa. 202, ise Roesch v. Johnson, 69 Ark. 30, 23 Atl. 1117. 62 S. W. 416. 13S Badcock v. Hunt, 22 Q. B. Dlv. ist Hayes v. Ferguson, 83 Tenn. 145. (15 Lea) 1, 54 Am. Rep. 398. 134 In re Floyd [1897] 1 Ch. 633. "8 Darrell v. Tibbitts, 5 Q. B. Div. 135 Hart V. Hart, 117 Wis. 639, 560. 94 N. W. 890. § 145 CONTRACT TO INSURE. 861 insurance in restoring the buildings/^a unless there is an ex- press provision requiring him so to do. b. Contract to insure. Not infrequently the lessee contracts to insure or keep insured the buildings or improvements on the premises for a certain sum or for their value. A covenant to insure in the name of the lessor is not complied with by insurance in the name of the lessee,!*" nor does such insurance satisfy a covenant to insure in the name of the lessor and lessee jointly.i*i But a covenant by the lessee to insure, without stating for whose benefit, has been regarded as satisfied by insurance for the benefit of the lessor and lessee, according to their respective interests, and as not requiring him to renew a pre-existing policy in favor of the lessor alone.i*^ A covenant by the lessee to keep the building insured for the lessor's benefit was held not to be complied with by the taking out of insurance by the lessee's subtenant, by agreement with the lessee, though the proceeds thereof were to be applied to rebuilding, the lessor not being in privity with such sub- tenant so as to have a right of action against him.i*^ The lessee's covenant to insure and keep insured the buildings does not require him to effect one policy and keep that policy in force, but he must keep them insured by one policy or another, and it is a breach if he permits the buildings' to be uninsured at any time.^** The fact that he allowed the smaller portion of the buildings to remain uninsured for two months was held to constitute a breach, even though a new policy was then effected in strict conformity with the covenant.!*^ Even if the lessee could be regarded as having a reasonable time within which to effect insurance, the burden is on him of accounting for any 139 Leeds V. Cheetham, 1 Sim. 146; "2 Sherwood v. Harral, 39 Conn. Roesch V. Johnson, 69 Ark. 30, 62 335. S, W. 416. "sKeteltas v. Coleman, 2 E. D. no Penniall v. Harborne, 11 Q. B. Smith (N. Y.) 408. And see, appar- 368. ently to the effect that insurance by "I Doe d. Muston v. Gladwin, 6 the subtenant is insufScient, dictum Q. B. 953; Hey v. Wyche, 12 Law J. of Maule, X, in Logan v. Hall, 4 Q. B. 83. But insurance In the les- C. B. 623. sor's name alone would be a compli- i** Doe d. Flower v. Peck, 1 Barn, ance with the covenant. Havens v. & Adol. 428. Middlcton, 10 Hare, 641. "s Penniall v. Harborne, 11 Q. B. 862 INSURANCE. § 145 delay .1*® A covenant by the lessee to "write insurance" to a certain amount has been regarded as not broken by a failure to renew the insurance so written.^*'^ A covenant by the lessee to insure the buildings and machinery to a certain amount for the benefit of the lessor has been regarded as satisfied when the ]essee placed part of that amount on the buildings and the bal- ance on the machinery of the lessee, a lien for rent on which was given to the lessor by the lease.^** The covenant to insure and keep insured is continuing in its nature, and the lessee cannot, on the destruction of the property, repudiate liability in damages for his failure to insure, on the theory that, the lessee having failed to obtain insurance on the day named, he was relieved from liability for subsequent failure to keep the premises insured-i*^ An acceptance of rent by the lessor, after knowledge of the lessee's failure to insure, is a waiver only of the previous breaches of a, covenant to insure and keep insured.i^" A covenant to insure the buildings on the premises and, in case of loss, to apply the proceeds of the insurance to the restora- tion of the buildings, has been considered to run with the land, so that the transferee of the lessor is entitled to the benefit thereof, and the assignee of the leasehold is liable thereunder.^'"! And even though the buildings were not in existence at the date of the lease, but were to be built by the lessee, and the word "assigns" was not used, it was held that the assignee of the leasehold was liable on a covenant to insure, since it might be inferred from the language of the lease, which was in terms made "at and for the rents and conditions" specified, to hold "upon the terms and conditions" expressed, that the covenant was one which was intended to relate to the land as well as to 368; Wilson v. Wilson, 14 C. B. 616 isi Vernon v. Smith, 5 Barn. & (one month's delay). Aid. 1; Shirk v. Adams, 130 Fed. 146 Doe d. Darlington v. Ulph, 13 441; Thomas v. Von Kapfe, 6 Gill & Q. B. 204. J. (Md.) 372. A covenant to insure, 11' Johnson v. Kindred State Bank, it has been said, does not run with 12 N. D. 420, 96 N. W. 588. the land unless the proceeds of in- 1*8 Guetzljow Bros. Co. v. Breese, surance are to be applied to the 96 Wis. 591, 72 N. W. 45. restoration of the building. North- 140 Rhone V. Gale, 12 Minn. 54. ern Trust Co. v. Snyder's Adm'r, 4fi ISO Doe d. Muston v. Gladwin, 6 Q. U. S. App. 179, 587. B. 953. § 145 CONTRACT TO INSURE. g63 the buildings.152 Qne who had a mechanic's lien on the build- ing and was allowed by the lessee to take possession was held not to be the assignee of the lease, so as to render him liable on the lessee's covenant to insure, or to entitle the lessor to claim the benefit of a policy taken out by him for his own protection.is^ In case of breach of the lessee's covenant to insure, the amount of recovery is, it seems, if no loss has taken place, the amount of premiums which the lessor may have to pay to effect the in- surance,!''* while in case of loss the amount of recovery has been decided to be the sum for which he agreed to insure, pro- vided this is no greater than the amount of the loss, and not the amount of premiiims which he would have paid.i^^ 152 Masury v. Southworth, 9 Ohio iss Jacksonville, M. P. R. & Nav. St. 340. See, as to the necessity of Co. v. Hooper, ISO U. S. 514, 40 Law. the word "assigns," post, § 149 h Ed. 515. The decision is based in (4). part upon the fact that the cove- 153 Merchants Ins. Co. v. Mazange, nant to insure was entered into in 22 Ala. 168. consideration of the lessor's agree- io4Mayhew v. Hardesty, 8 Md. 479; ment to rebuild in case of fire and Masury v. Southworth, 9 Ohio St. to suspend the rent so long as the 340. See Hey v. Wyche, 12 Law J. premises remained uninhabitable. Q. B. 83. In Lincoln Trust Co. v. Nathan, Where the lessor agreed to insure, 122 Mo. App. 319, 99 S. W. 484, but the lessee was to pay all "extra where the lessor agreed to construct Insurance" occasioned by the use improvements in the building leased, which he might make of the prem- to belong to the lessor, and to -in- ises, and the lessor, upon receiving sure them, and in case of their de- payment from the lessee for "extra struction to apply the insurance insurance" for one year, gave a re- money to replacing them, and owing ceipt reading "in full settlement of {q the lessor's failure to reconstruct all extra insurance," this receipt ^he building on its subsequent de- was regarded as showing an inten- gtruction by fire the improvements tion to settle all the matter of extra ^^^j^ ^^^ ^^ replaced, it was held Insurance once for all anrt it was con- sequently held that the lessor could not recover from the lessee the that the lessor was entitled to a por- tion of the insurance money meas- amount which he paid as "extra in- "'"el I'y the proportion between the Burance" for that year upon the fail- ^bole term and the time during ure of the company in which he first which the lessee actually enjoyed insured. Quincy v. Carpenter, 13fi possession. Mass. 102. CHAPTER XIV. TRANSFER OF THE REVERSION. § 146. Voluntary transfer. a. General considerations. b. Transfer of "lease." c. Execution of conveyance. d. Subsequent lease by landlord. e. Subsequent mortgage by landlord. f. Attornment. 147. Transfer by operation of law. 148. Transferor's rights and liabilities. 149. Transferee's rights and liabilities. a. By reason of privity of estate. b. By reason of privity of contract. (1) Statutory provisions. (2) Covenants which run with the land. (3) Covenants which do not run with the laud. (4) Necessity of mention of assigns. (5) Demise of incorporeal thing. (6) Covenants relating to personal chattels. (7) Leases not under seal. (8) Title of lessor. (9) Breaches previous to transfer. (10) Mode of transfer. (11) Transfer of partial interest. (12) Release by transferor. § 146. Voluntary transfer. a. General considerations. By tlie making oii a lease, as be- fore stated, the lessor deprives himself of the right of present possession, though his estate otherwise continues as it was be- fore. Such estate, so deprived of the right of present possession, i.s referred to as an "estate in reversion" or, more frequently, as a "reversion." The name "reversion," as thus applied, evi- dently has its origin in the fact that the lessor, though deprived § 146 VOLUNTARY TRANSFER. 865 of the right of present possession, is entitled, by reason of his estate, to have the possession "revert" to him upon the expira- tion of the term created by the lease. So far as the word "re- version" may suggest that the lessor has no present estate or ownership in the land, but merely a right to have the ownership revert to him upon the expiration of the leasehold, it is mislead- ing, but its use as descriptive of the lessor's estate is sanctioned by the unquestioned practice of centuries. The lessor's reversion, or estate in reversion, may be trans- ferred by the lessor to another, and by the latter again trans- ferred, and so again by the last transferee, and each transferee becomes the landlord for the time during which he holds title to the reversion. The ordinary mode in which such a transfer, with its conse- quent change of landlords, occurs, is by voluntary conveyance b}-^ the lessor, or by his transferee, of his estate in the land. Such a conveyance need not, it would seem, refer in terms to the lease, a conveyance of the premises by the landlord being neces- sarily subject to the rights of the tenant, and consequently being of a reversionary interest only, provided the grantee, if a pur- chaser for value, has notice, actual or constructive, of the lease.^ Such notice the grantee may have from the tenant's possession of the premises,^ or from the record of the lease, if the lease is ^ See Whittemore v. Smith, 50 join, renders him a disseisor, a sub- Conn. 376; Yule v. Fell, 123 Iowa, sequent conveyance by husband and 662, 99 N, W. 559 ; Blake v. Ashbrook, wife would be regarded as intended 91 111. App. 45; Anderson v. Conner, to be subject to the lease in order 43 Misc. 384, 87 N. Y. Supp. 449; that it might be upheld, that is, it Biddle v. Hussman, 23 Mo. 597; Mc- would be regarded as a conveyance Garden v. Williams, 19 R. I. 701, 36 of a reversion and not of a mere Atl. 719. So the assignee of the right of entry, leasehold takes subject to a sublease = Taylor v. Stibbert, 2 Ves. Jr. 437: of which he has notice. Teater v. Barnhart v. Greenshields, 9 Moore King, 35 Wash. 138, 76 Pac. 688. P. C. 18, 32; Hunt v. Luck [1901] 1 In Winestine v. Ziglatzki-Marks Ch. 45; Thompson v. Pioche, 44 Cal. Co., 77 Conn. 404, 59 Atl. 496, it was 508; Dreyfus v. Hirt, 82 Cal. 621, 23 decided that since a conveyance of Pac. 193; Scheerer v. Cuddy, 85 Cal. land by a disseisee is in that state 270, 24 Pac. 713, 9 L. R. A. 487; Mc- invalid (see ante, § 75), and the Rae v. McMinn, 17 Fla. 876; Parker possession of one holding under a v. Gortatowsky, 127 Ga. 560, 56 S. lease by a married woman of her E. 846; Coari v. Olsen, 91 111. 273; land, in which her husband does not Barrett v. Geisinger, 148 111. 98, 35 L. and Ten. 55. 866 TRANSFER DF REVERSION. § ] 45 within the recording laws, as leases, except for brief periods, usually are.^ In ease the lease is within the recording laws, and is not recorded, and the grantee, being a purchaser for value, has no notice thereof otherwise, he will take free from any rights in the tenant under the lease. If, on the other hand, the lease is not within the recording laws, the grantee, although a purchaser for value, and without notice thereof, will, it seems, take subject thereto.'''"' N. E. 354; Leebrlck v. Stable, 68 approved in Anderson v. Brinser, 12S Iowa, 515, 27 N. W. 490; Buck v. Pa. 376, 11 Atl. 809, 18 Atl. 520, 6 L. Holloway's Devisees, 25 Ky. (2 J. J. R. A. 205. Marsh.) 163, ISO; Hull v. Noble, 40 A purchaser is not, it has been Me. 459; Engler v. Garrett, 100 Md. held, by the possession of the ten- 387, 59 Atl. 648; Disbrow v. Jones, ant under a lease, charged with Har. (Mich.) 48; Friedlander v. notice of a claim by the tenant that Ryder, 30 Neb. 783, 47 N. W. 83, 9 by a contract prior to the lease he L. R. A. 700; Stone v. Snell, 77 Neb. had acquired an absolute right to 441, 109 N. "W. 750; Chesterman v. the land in fee. Smith v. Miller, 63 Gardner, 5 Johns. Ch. (N. Y.) 29, 9 Tex. 72, 66 Tex. 74, 17 S. W. 399. Am. Dec. 265; Anderson v. Conner, But apart from any question of no- 43 Misc. 384, 87 N. Y. Supp. 449; tice, the tenant would ordinarily be Hood V. Fahnestock, 1 Pa. 470; Hot- precluded from asserting any such tenstein v. Lerch, 104 Pa. 454; Sim- right as against the purchaser, anek v. Nemetz, 120 Wis. 42, 97 N. Ante, § 78. W. 508. In Brown v. Roland, 11 Tex. Civ. By the weight of authority, the App. 648, 33 S. W. 273, it was de- tenant's possession is notice not cided that a purchaser was not, by only of his rights under the lease, the tenant's possession, charged with but also of any rights which he may notice of his right to certain fixtures, have under a subsequent agreement The opinion seems rather to mis- not incorporated in the instrument interpret Smith v. Miller, 63 Tex. 72, of lease, such as a contract for the supra. purchase of the land. Daniels v. ^ Jones v. Marks, 47 Cal. 242; Davison, 16 Ves. Jr. 249, 17 Ves. Jr. Commercial Bank v. Pritchard, 126 433; Allen v. Anthony, 1 Mer. 282; Cal. 600, 59 Pac. 130; Garber v. Glan- Barnhart v. Greenshields, 9 Moore ®^1^' ^^ Cal. 527, 33 Pac. 458; Chap- P. C. 18, 32; Coari v. Olsen, 91 111. ^^^ ^- ^^ay, 15 Mass. 439; Toupin 273; Kerr v. Day, 14 Pa 112 53 Am "^^ P^abody, 162 Mass. 473, 39 N. E. Dec. 526; Anderson v. Brinser, 129 ^^^- ^"""^ ^- Noriglan, 28 R. I. 319, Pa. 376. 11 Atl. 809, 18 Atl. 520, 6 '' f '• 11%'^''::' v. Sunbury & E. T x> . „^^ ., R- Co., 32 Pa. 458. See Johnson v. L. R. A. 205. In Red River Valley g^^^g^ ^ Johns. (N. Y.) 510. Land & Inv. Co. v. Smith, 7 N. D. 4,5 Toupin v. Peabody, 162 Mass. 236, 74 N. W. 194, the opinion ap- 473, 39 jj. E. 280; Hutchinson v. proves a dictum contra in Leach v. Bramhall, 42 N. J. Eq. 372, 7 Atl. Ansbacher, 55 Pa. 85, which was dis- 873 (semble). But it has been held § 146 VO'LUNTARY TRANSFER. 867 In' view of the fact that a transfer of the land by the rever- sioner is thus necessarily, in almost every ease, subject to the prior rights of the tenant under the lease, it is not clear why a transfer by the lessor, not expressly saving the tenant's rights under the lease, should be regarded, as has occasionally been done, as involving a wrong to the latter,« it being in some cases referred to as an "eviction."" A transaction between other persons, thus injuring the tenant only by reason of his failure to take the usual and proper precautions, by entering into pos- session or recording his lease, to give notice of the lease and so to protect his rights, seems to contain no element of an eviction, properly so called. If such a conveyance by the lessor is an eviction, it must be so, it is conceived, whether the lessee is or is not protected as against the subsequent grantee or lessee by reason of the latter 's notice of the lease, and so the lessee, al- though he could not legally be disturbed by him, because of such notice, would have the right to relinquish possession and refuse to pay rent, merely because the lessor has transferred his reversion to another. It is hardly conceivable that the sub- sequent transfer, if an eviction when the transferee has no notice of the lease, is not an eviction when he has such notice. The .that the assignee of the leasehold is breach of a covenant for title in the not affected by parol lease or license prior deed, see Rawle, Covenants for by the lessee as to part of the prem- Title, § 128, note, criticising Curtis ises in favor of the lessor of which v. Deering, 12 Me. (3 Pairf.) 499. he had no notice. Burr v. Spencer, Williamson v. Williamson, 71 Me. 26 Conn. 159, 68 Am. Dec. 379. 442, and Lukens v. Nicholson, 4 « See Nichol v. McDonald, 69 Ark. Phila. (Pa.) 22 are to the same 341, 64 S. W. 263; Staples v. Flint, effect as the case thus criticised. 28 Vt. 794. In Wade v. Comstock, 11 Ohio St. 71, In Maule v. Ashmead, 20 Pa. 482, the liability of the grantor, in such the administratrix of the lessor wa^ a case, under his covenant of war- held liable as for breach of the cov- ranty, is denied, but it is said : "No enant for quiet enjoyment because one can doubt but that the grantor, the lessee was turned out by the if by his agency the title was sub- transferee of the administratrix. It sequently defeated, would be liable is stated that the conveyance did to the grantee for the damages there- not contain any reservation in favor by occasioned. It would be a wrong- of the lessee, but it does not appear ful act in fraud of the rights of the whether this was the ground of lia- grantee." See, also, Foster v. Wood- l)ility. That a subsequent convey- ward, 141 Mass. 160, 6 N. E. 853. ance by a grantor in fee is not a t See post, § 185 f (6). 868 TRANSFER OP REVERSION. § 14g only theory, apart from that of eviction, on which the lessor, thus making a transfer of the land without expressly reserving the rights of the tenant under the lease, could be regarded as committing a wrong against the tenant, would seem to be that such transfer constitutes a fraud upon the tenant. There is, however, but slight ground for the inference of fraud in such a ease. The failure to insert in the conveyance an express refer- ence to the lease would ordinarily be the result either of negli- gence, or of a failure to regard such insertion as in any way obligatory on the lessor, the lessee being in a position to pro- tect his rights in the premises and presumably having done so. A landlord, instead of transferring the reversion in the whole land, may transfer the reversion in part, he thus remaining land- lord as to the part retained, and his transferee becoming land- lord as to the part transferred.* b. Transfer of "lease." Not infrequently one finds a men- tion of the transfer or assignment of the ' ' lease " by a lessor, and occasionally this expression is used, apparently, as synonymous with a transfer of the reversion.^ Such expression can, it is submitted, properly be used only of a transfer by the lessee or his assignee, the word "lease" being in such case used elliptically, as it is frequently used in other connections, to designate the es- tate created by the lease, the leasehold interest.^" The expression "transfer of a lease," when used with reference to a transfer by the lessor, cannot well refer to a transfer of the estate in re- version, since such estate exists independently of the lease, though it is not reversionary in character until after the lease has been made, and the only meaning which can properly be attached to this mode of expression is a transfer by the lessor of the rights created in his favor by the lease, so far as they" can exist inde- pendently of and apart from the reversion, the chief, and usually the only one of which, is that to rent. A transfer or assign- ment of a lease, when spoken of as the act of the reversioner, should therefore, it seems, ordinarily be regarded as meaning s Moodie v. Garnance, 3 Bulst. 153; 102 111. App. 381; Iowa Sav. Bank v. West V. Lassels, Cro. Bliz. 851; Lin- Friak, 1 Neb. Unoff. 14, 26, 92 N. W. ton V. Hart, 25 Pa. 193, 64 Am. Dec. 916; Merchants' State Bank v. Ruet- 691; Leiter v. Pike, 127 111. 287, 20 tell, 12 N. D. 519, 97 N. W. 853. N. E. 23, 2 L. R. A. 549. lo See ante, § 12 a, at note 17. 9 See Keeley Brew. Co. v. Mason, § 14t) VOLUNTARY TRANSFER. 869 merely a transfer of the rent to become due, with perhaps any rights created by covenant on the part of the lessee looking towards the collection of the rent rather than the protection of the reversion,!! and the expression, at best one to be avoided owing to its ambiguity, is generally, it would seem, construed in this sense.!2 c. Execution of conveyance. The requirements with refer- ence to a conveyance of an estate in reversion are ordinarily the same as in the case of a conveyance of an estate of the same quantum in possession, the fact that there is an outstanding leasehold estate not changing the character of the estate con- veyed. At common law there could be no transfer of an estate of freehold in reversion unless there was livery of seisin, to which the tenant consented, or a grant, that is, a conveyance under seal,!^ and this requirement of a sealed conveyance applied 11 In Isman v. Hanscom, 217 Pa. lease is transferred. A man may 133, 66 Atl. 329, the transfer by the sell his interest in a lease, and -yet lessor of "all right, title and inter- retain his reversionary interest in- est in the lease, and all benefits and tact." This, it is submitted, goes advantages to be derived therefrom," too far as regards the effect of a was held to pass the right to take so-called "assignment of the lease." advantage of an option given to the It cannot be intended to transfer the lessor by the instrument of lease to right to covenants Inserted to pro- purchase the improvements placed tect the reversion; nor, it seems, can on the premises by the lessee. such an assignment of the lease 12 Bordereaux v. Walker, 85 111. transfer a right to enforce a condi- App. 86 ; Demarest v. Willard, 8 Cow. tion, this belonging to the owner of (N. Y.) 206; Huerstel v. Lorillard, 29 the reversion who would obtain the N. Y. Super. Ct. (6 Rob.) 260-; Id., benefit of the forfeiture. That such 30 N. Y. Super. Ct. (7 Rob.) 251. covenants do not pass upon an "as- In Lennen v. Lennen, 87 Ind. 130, signment of the lease" is clearly de- the court discusses the effect of "the cided in Allen v. Wooley, 1 Blackf. assignment of the lease" by the (Ind.) 148. That they do not pass lessor. The reporter, in his head- upon an assignment of the rent as note, carelessly states that an as- such, see McDougall v. Rldout, 9 U. signment of the lease by the lessee C. Q. B. 239. was in question. The court in this is Co. Li tt. 49 a; Sheppard's Touch- case says that "it is one thing to stone, 230; Watkins, Conveyancing sell the reversion and another thing (Preston's Ed.) 123; Williams, Real to assign the lease. In the one case. Prop. (18th Ed.) 310; Thursby v. an interest In the land itself passes; Plant, 1 Wms. Saund. 234, note (3) ; in the other, only a right to enforce Doe d. Were v. Cole, 7 Barn. & C. the covenants and conditions of the 243,' 248. 870 TRANSFER OF REVERSION. j 14(} to the case of a "concurrent" lease.i* After the passage of the Statute of Uses, however, a reversion could be conveyed by- bargain and sale/" and this was valid without any sealed instru- ment, or indeed any instrument whatever.^" The effect of the Statute of Enrollments, passed shortly after the Statute of Uses,i'^ was to render an indenture, that is, a sealed instrument, neces- sary for the purpose of a bargain and sale, but this statute is presumably in force in few, if any states, in this country, and consequently an unsealed conveyance of a reversion can, pro- vided there is the necessary consideration, and provided further the Statute of Uses is in force in the particular jurisdiction, al- ways be supported as a bargain and sale, unless a seal be re- quired by the local statutory provisions as to conveyances of land, without reference to the common law requirement of a seal on the conveyance of a reversion without livery of seisin. The requirements of a transfer by will of a reversion, as of any other property interest, are determined by the provisions of the local statute as to the execution of wills. The fact that the lease is under seal evidently does not of itself necessitate that the transfer of the reversion be under seal.^* nBac. Abr., Leases (N) ; Brawley Partridge, 108 Mass. 556; Warren v. V. Wade, McClel. 664. As to con- Leland, 2 Barb. (N. Y.) 613; Still- current leases, see the subsection man v. Harvey, 47 Conn. 26; Barrett next following. v. Trainer, 50 111. App. 420; Border- is Watkins, Conveyancing, 123; 2 eaux v. Walker, 85 111. App. 86; Preston, Abstracts, 85; Ciiallis, Real Barnes v. Northern Trust Co., 169 Prop. (2d Ed.) 349; 2 Sanders, 111. 112, 48 N. E. 31. All except the Uses & Trusts, 67. last of these cases involved an as- i« Chibborne's Case, 2 Dyer, 229 a; signment of the leasehold by the les- Com. Dig., Bargain & Sale, B 1, 4; see, not of the reversion by the re- Gilbert, Uses, 87, 271. versioner. 17 See 1 Tiffany, Real Prop. § 403. In Massachusetts it has, however, 18 This seems to be assumed in been decided that if the instrument HoUiday v. Marshall, 7 Johns. (N. of lease is under seal, one to whom Y.) 211; Barnes v. Northern Trust the "lease" is transferred by an in- Co., 169 111. 112, 48 N. E. 31. strument not under seal cannot sue In Keeley Brew. Co. v. Mason, 102 on a covenant for rent contained in 111. App. 381, it is decided that the the instrument (Wood v. Partridge, "assignment of the lease" by the 11 Mass. 488; Bridgham v. Tileston, lessor was sufiBcient though not un- 87 Mass. [5 Allen] 371), the theory der seal, although, it seems, the lease being that an assignment should be was under seal ; citing Sanders v. by an instrument of as high a na- § 146 VOLUNTARY TRANSFER, 871 If a transfer, for instance, of a fee simple estate in possession is, in the particular jurisdiction, valid without a seal, it could not well be invalid merely because it is subject to a leasehold estate in another person which was created by a sealed instrument. d. Subsequent lease by landlord. Not only may a landlord transfer his reversion in a part of the land leased, but he may transfer a part of his reversion in the whole land, that is, he may create another lesser estate therein in favor of a third person, and this he may do in either one of two ways, (1) by a "lease in reversion," or (2) by a "concurrent lease." By a "lease in re- version" is meant a lease to take effect in possession after the ending of a leasehold estate previously existing.^^" If such lease is by its terms to commence in possession when such prior lease- hold estate comes to an end, it will do so, although such estate comes to an end before the_ expiration of the term named in the prior lease, as for instance when there is a surrender or for- feiture thereof; while if by its terms the second lease is to com- mence in possession after a certain number of years, it will not commence till that time, although previously thereto the pre- existing leasehold comes to an end, either by its express terms, or by a surrender or forfeiture.^^ Likewise, in the former case, the term will begin immediately if the prior lease is for any reason void or nonexistent.^'' Until entry under a lease in re- version, the lessee has merely an interesse iermini.^^ A landlord, although he has made a lease in reversion, retains ture as the instruinent which it pur- interest sought to be transferred is ports to transfer. The transfer of alone material, that is, if the Inter- the "lease" referred to in these cases est, whether the reversion or the may have involved a transfer of the rent, passes, the right to sue on the rent merely, and not of the rever- covenant passes. See post 180 c (2), sion (§ 146 b, ante), and, so con- at note 582. sidered, the necessity of a seal upon isa See Bishop of Bath's Case, 6 the transfer might have been based Coke, 34 b; 1 Piatt, Leases, 443. on the fact that an incorporeal thing is Bac. Abr., Leases (L) 1. can be transferred only by grant 20 Co. Litt. 46 b; Bac. Abr., Lease (post, § 180 c [2], at notes 577-599). (L) 1. Whether the reversion or the rent 21 Smith v. Day, 2 Mees. & W. 684; alone is transferred, the right to sue Joyner v. Weeks [1891] 2 Q. B. 31; on the covenant passes as an inci- Logan v. Green, 39 N. C. (4 Ired. dent to the interest transferred, and Eq.) 370; Lewis v. Baker [1905 J 1 consequently the sufficiency of the Ch. 46. instrument of transfer to pass the 872 TRANSFER OF REVERSION. § ]46 his rights against the previous lessee, such as the right to sue for or distrain for rent, that is, he is still the reversioner and land- lord,^2 and he, rather than the reversionary lessee, has been re- garded as the person entitled to assert a claim against the prior lessee by reason of a wrongful holding over by the latter.^^ A "concurrent lease" is one granted by the owner of the re- version, to take effect, not after the termination of the jire-exist- ing lease, but before such termination, and by it, if in proper form to transfer the reversion, the lessee named therein becomes substituted in place of the former landlord, and is, from the time at which it is by its terms to begin, and for the term during which it is to endure, entitled to the rent under the previous lease,^* may claim the benefit of the covenants and conditions thereof,*' and may give a valid notice to terminate a periodic tenancy created by the former lease. ^^' ^'^ e. Subsequent mortgage by landlord. The landlord, whether the original lessor or his transferee, may execute a mortgage upon the land, which, like an absolute conveyance, will ordinarily be subject to the prior lease, that is, it will not affect the right to possession under the lease. ^-^ In jurisdictions where a mort- 22 Smith V. Day, 2 Mees. & W. 684; to person entitled to sue to recover Blatchford v. Cole, 5 C. B. (N. S.) possession from prior lessee, see post, 514. See Alexander v. Loeb, 230 III. S 215. 454, 82 N. E. 833, where the instru- 2*Harmer v. Bean, 3 Car. & K. 307; ment of lease provided specifioally Morris v. Nlles, 12 Abb. Pr. (N. Y.) that the possession should not pass 103; McDonald v. Hanlon, 79 Cal. to the lessee during the time the 442, 21 Pac. 861; Logan v. Green, 39 lessors were prevented from deliv- N. C. (4 Ired. Eq.) 370'; Russo v. ering possession of the premises by Yuzolino, 19 Misc. 28. 42 N. Y. Siipp. the action of the prior lessees. 482. 23 Blatchford v. Cole, 5 C. B. (N. 25 Co. Litt. 215 a; Wright v. Bur- S.) 514 (action for double value for roughes, 3 C. B. 685; Burton v. Bar- wrongful holding over not maintain- clay, 7 Bing. 745. able by lessee in reversion) ; Thomas 26,27 Doe d. Jarvis v. McCarthy, 5 V. Wightman, 129 111. App. 305 (stlp- New. Br. (3 Kerr) 63. And the les- ulated penalty for holding over re- sor cannot give such notice. Words- coverable by lessor in spite of lease ley Brewery Co. v. Halford, 90 Law in reversion made by him) ; United T. (N. S.) 89. Merchants' Realty & Imp. Co. v. Roth, ^s Moss v. Gallimore, 1 Doug. 279 ; 122 App. Div. 628, 107 N. Y. Siipp. Rogers v. Humphreys, 4 Ado!. & E. 511 (lessee in reversion not entitled 299, 313; Burden v. Thayer, 44 Mass. as landlord to hold previous tenant (3 Mete.) 76, 37 Am. Dec. 117. holding over for another term). As § 146 VOLUNTARY TRANSFER. 873 gage transfers the legal title, the effect will be to make the mortgagee the reversioner and landlord in place of the mort- gagor.2' In other jurisdictions it can have no such effect-^** f. Attornment. It was formerly necessary in England, in order that the relation of landlord and tenant might arise be- tween the transferee of the reversion and the tenant of the land, that the tenant "attorn" to such transferee, that is, consent to the transfer, or, what is the same thing, consent to be the tenant of the transferee.31 This requirement was based upon the per- sonal nature of the relation between the landlord and the tenant in early times, and was dispensed with by Statute 34 Anne, c. 16, §§9, 10, providing that all grants and conveyances of any manors or rents, or of the reversion or remainder of any messuages or lands, shall be good and effectual, to all intents and pur^joses. without any attornment of the tenants of any such manors, or of the land out of which such rent shall be issuing, or of the par- ticular tenants upon whose particular estates any such reversions ' or remainders shall and may be expectant or depending, as if their attornment had been had and made, provided that "no such tenant shall be prejudiced or damaged by payment of any rent to any such grantor or conusor, or by breach of any condi- tion of nonpayment of rent, before notice shall be given to him of such grant. "32 This statute, it has been decided in an English case, does not apply to a transfer of the reversion on an oral lease, the trans- fer being made after an assignment of the leasehold, so as to give the transferee a right to maintain an action for rent against the original lessee, he not being, after his assignment, a tenant with- 20 Moss V. Gallimore, 1 Doug. 279; Co. v. Peabody Coal Co., 99 111. App. Comer v. Sheehan, 74 Ala. 452; Cof- 427. fey V. Hunt, 75 Ala. 236; King v. si See Litt. § 551; Butler's note to Housatonlc R. Co., 45 Conn. 226; Co. Lltt. 309 a; 2 Sheppard's Touch- Mlrlck V. Hoppln, 118 Mass. 582; stone, c. 13, pp. 253-266. Compare Kimball v. Lockwood, 6 R. I. 138; ante, § 19 a. Burden V. Thayer, 44 Mass. (3 Mete.) 32 See Doe d. Agar v. Brown, 2 76, 37 Am. Dec. 117; Russell v. Allen, El. & Bl. 331; Doe d. Wright v. 84 Mass. (2 Allen) 42; Kimball v. Smith, 8 Adol. & E3. 260; Cook v. Pike, 18 N. H. 419. Moylan, 1 Exch. 67; Scaltock v. Har- 30 Teal V. Walker, 111 U. S. 242, ston, 1 C. P. Dlv. 106. 28 I.a.w. Ed. 415; David Bradley & 874 TRANSFER OF REVERSION. § 146 in the statute.^^ In this case it was conceded that there was no covenant for rent passing -vyith the reversion, since the lease was oral, and the action seems to have been equivalent to an action of debt for rent at common law. In a number of states in this country the statute of Anne, dis- pensing with the necessity of an attornment, but saving the rights of a tenant paying rent before notice of the transfer, lias been substantially adopted or re-enacted,^*'^^ ^nd in others the requirement of attornment has been regarded as inapplicable owing to the absence pf the feudal relation in which it had its origin.36 In Illinois attornment Avas, at one time, regarded as strictly necessary on a transfer of the reversion,^'' but has been held to have been dispensed with by the statute, hereafter re- ferred to,^* giving the transferee of the reversion all the reme- dies of the lessor.'''^ And in other states, occasionally, it seems to have been regarded as a still existent requirement.*"* The .Ymeriean statutes on the subject, it may be remarked, differ from the English statute in that they ordinarily protect the tenant who pays rent "Avithout notice of the transfer," while the Eng- 33 AUcock V. Moorhouse, 9 Q. B. Abbott v. Hanson, 24 N. J. Law ( 4 Div. 366. Zab.) 493; Jones v. Rigby, 41 Minn. si,3v AlaVama Code 1907, § 3365; 530, 43 N. W. 390; Hendricksqn v. California Civ. Code, § 1111; Delor Beeson, 21 Neb. 61, 31 N. W. 266; ware Rev. Code 1893, p. 866; Idaho Kelly, v. Bowerman, 113 Mich. 44G, Civ. Code 1901, § 2414; Burns' Ann. 71 N. *W. 836; Pelton v. Place, 71 Vt. St. Indiana 1901, § 7096; Kansas 430, 46 Atl. 63; Mussey v. Holt, 24 Gen. St. 1905, § 4063; Kentucky St. N. H. 248, 55 Am. Dec. 234. 1893, § 2298; Mississippi Code 1906, 37 Fisher v. Deering, 60 111. 114. § 2836; Montana Rev. Codes 1907, § See Mackin v. Haven, 187 111. 480, 58 4625; 1 Gen. St. New Jersey, p. 875, N. E. 448; Hayes v. Lawver, 83 111. § 109; New York Real Prop. Law, i 182. 213; North Carolina Revision 1905, ss See post, § 149 b (1), at note 86. § 947; ?/oriftUofco«a Rev. Codes 1905, 39 Barnes v. Northern Trust Co., § 4980; South Carolina Civ. Code, § 169 111. 112. 48 N. B. 31. 2413; SoMiA JDafcota Civ. Code, § 946; *o See Winkelmeler v. Katzelbur- Virginia Code 1904, § 2783 ; West Yir- ger, 77 Mo. App. 117 Csummary pro- ginia Code 1906, § 3396. ceeding) ; Duke v. Compton, 49 Mo. 36 See King v. Housatonic R. Co., App. 304 (summary proceeding) ; 45 Conn. 226; Perrin v. Lepper, 34 Smith v. Aude, 46 Mo. App. 631; Mich. 292; Burden v. Thayer, 44 Thompson v. Chapman, 57 Ga. 16; Mass. (3 Mete.) 76, 37 Am. Dec. 117; Stewart v. Gregg, 42 S. C. 392, 20 Funk's Lessee v. Kincaid, 5 Md. 404; S. E. 193. § 146 VOLUNTARY TRANSFER. 875 lish statute protects him only in making payments before notice of the transfer "shall be given to him."*"" It was decided in England, after the passage of the Statute of Uses, that any conveyance of a reversion which took effect under that statute, that is, as a bargain and sale or covenant to stand seised, was effectual without any attornment.*^ In Eng- land the effect of this view in dispensing with the necessity of attornment, before the statute of Anne, was much restricted by the requirement that a conveyance by way of bargain and sale must be by indenture and enrolled,*- but in any state of this country, in which the Statute of Uses is, and the Statute of En- rollments is not, in force, a conveyance of a reversion, made for a valuable consideration, or which recites the payment of such a consideration, might, it seems, in the absence of any recog- nition of the statute of Anne or any local re-enactment there- of, be regarded as taking effect by way of bargain and sale,*-'^ for the purpose of dispensing with the necessity of an attornment. The requirement of an attornment upon a transfer of the re- version applied at common law in the case of a "concurrent lease," that is, a transfer of the reversion for a limited period,** as well as when the entire reversion was transferred. But the statute of Anne, above referred to, dispenses, it seems, with the necessity of an attornment in the former as well as in the latter case.*° 4oaSee post, § 180 d, at note 609. 31 N. W. 266; McDonald v. Hanlon, "Bro. Abr., Attornment, pi. 29; 79 Cal. 442, 21 Pac. 861. Vice Chan- Co. Litt. 309 b; Sir Moyle Finch's cellor Page Wood, however, in Bd- Case, 6 Coke, 68 b; Anonymous, 1 wards v. Wickwar, L. R. 1 Eq. 403,^ Byer, 30 a; Anonymous, 2 And. 203. decided, without discussion, that at- And see the opinion of Mr. Justice tornment is necessary in such a case. Buller in Birch v. Wright, 1 Term R. It is generally assumed that he over- 385. looked the statute of Anne. See 42 Statute of Enrollments (27 Hen. note to report of the case in Edwards g_ c. 16). V. Wickwar, 35 Law J. Ch. 309; Foa, 43 See 2 Tiffany, Real Prop. §§ 378, Landl. & Ten. (2d Ed.) 355; Wood- 384. fall, Landl. & Ten. (16th Ed.) 222. 44Bac. Abr., Leases (N); Anony- In Comstock v. Cavanagh, 17 R. I. mous, 3 Leon. 17. 233, 21 Atl. 498, 12 L. R. A. 57, also, 45 Doe d. Agar v. Brown. 2 El. & it is held that attornment is nec- Bl. 331, 348; Doe d. Jarvis v. Mc- essary in such a case, the court say- Carthy, 5 New Br. (3 Kerr) 63; ing that the statute of Anne is inap- Hendriekson v. Beeson, 21 Neb. 61, plicable because there is a transfer 876 TRANSFER OF REVERSION. § ] 47 § 147. Transfer by operation of law. There may be a transfer of the reversion, not only by the vol- untary act of the owner thereof, but also by operation of law. One case of such transfer occurs when the landlord dies intestate the reversion, if in fee, passing, in most states, to his heir 01 heirs,*^ and if a chattel interest only, passing to his personal representative .* ^ Likewise, if the interest of the landlord is sold under a judg- ment, mortgage or other lien, which is subsequent to the lease, the purchaser becomes the landlord in the former owner's place, since the reversion passes by the sale.** In such case the pur- chaser takes only what the lessor has, that is, his estate in re- of a mere right to the possession 161; Chamberlain t. Dunlop, 126 N. upon the termination of the pre- Y. 45, 26 N. E. 966; Stinson v. Stin- vious tenancy, that is, a mere inter- son, 38 Me. 593; Dixon v. Niccolls, esse termini. Since it was the lack 39 111. 372, 89 Am. Dec. 312. of an attornment which, at the com- *t Sacheverel v. Frogate, 1 Vent, mon law, caused the second lease to 161. take effect merely as creating an is Butt v. EUett, 86 U. S. (19 interesse termini (See Bac. Ahr., Wall.) 544; Smith v. Aude, 46 Mo. Lease [N]; Rawlyns' Case, 4 Coke, App. 631; Epley v. Buhanks, 11 111. 53 a), it Is somewhat dlflacultto un- App. (11 Bradw.) 272; Lanchashlre derstand the reason given for the v. Mason, 75 N. C. 455; Rhyne v. nonapplicabllity of the statute. The Guevara, 67 Miss. 139, 6 So. 736; statement seems equivalent to say- Abrams y. Sheehan, 40 Md. 446; ing that the statute dispensing with Gross v. Chlttim (Tex. Civ. App.) 18 an attornment does not apply be- Tex. Ct. Rep. 906, 100 S. W. 1006. In cause an attornment is necessary, some of these cases the courts ap- The court cites Edwards v. Wickwar, pear to be under the impression that Li. R. 1 Eq. 403, supra, which no it is the time of the sale, and not ot doubt supports it, but it also cites the lien under which the sale is Doe d. Agar v. Brown, 2 Bl. & Bl. 331, made, that determines the rights of 348, which is directly contrary to the purchaser, losing sight of the fact its conclusion. This case Is cited ap- that the rights of one purchasing provlngly in Moshassuck Encamp- upon a sale under a lien are fixed ment No. 2 v. Arnold, 25 R. 1. 65, 54 by the date of the lien. See ante, § Atl. 771. In White v. Kane, 53 Mo. 78 n (3), post, at notes 49-54. App. 300, it is assumed that attorn- In case of sale under a power in ment is necessary in order to create a mortgage or deed of trust subse- a liability as against the lessor in quent to the lease, the purchaser favor of a lessee under a concurrent succeeds to the lessor's rights. Otis lease. v. McMillan, 70 Ala. 46. « Sacheverel v. Frogate, 1 Vent. § 147 BY OPERATION OF LAW. ,S77 version, and the rights oli the tenant under the outstanding lease remain such as they would be in the case of a voluntary transfer of the reversion. If, on the other hand, the premises are sold xinder a judgment, mortgage or other lien prior to the lease, the purchaser comes in by title paramount to the lease,*^ and he is entitled to possession as against the tenant thereunder.^" And as the tenant under a lease has no rights in the land as against the purchaser under a prior incumbrance, so such purchaser has, apart from statute, no rights as landlord against such tenant, unless the latter accepts a new lease from the purchaser, or, which is the same thing, attorns to him.^i The purchaser's title dates back to the date of the lien under which he claims,^^ and he is in the same position towards the tenant under the lease as that in which one to whom the owner of land conveys the ab- solute title would be towards a tenant under a lease which such owner might make after thus divesting himself of the title, that is, he is an absolute stranger towards such tenant. The enforce- ment of the lien divests all intermediate estates and interests to the same extent as would the enforcement of a condition subse- quent at common law. The courts occasionally lose sight of the above distinction between a sale under a prior and one under a subsequent lien, speaking of a purchaser under a prior lien as being entitled to the rent under the leasees It may be remarked that if the purchaser at the sale made to enforce such prior lien 40 See ante, § 78 n (3). ber, Judicial Sales, 205, 207, 423; 19 50 Fitzgerald v. Beebe, 7 Ark. 310; Am. & Eng. Enc. Law (2d Ed.) 36. Simers v. Saltus, 3 Denio (N. Y.) ^sWhalin v. White, 25 N. Y. 462; 214. Condon v. Marley, 7 Kan. App. 383, 51 McDermott v. Burke, 16 Cal. 51 Pac. 924 ; Harris v. Foster, 97 Cal. 580; Bartlett v. Hitchcock, 10 111. 292, 32 Pac. 246, 33 Am. St. Rep. 187; App. (10 Bradw.) 87; Simers v. Henshaw v. Wells, 28 Tenn. (9 Saltus, 3 Denio (N. Y.) 214; Sprague Humph.) 568. The assertion of a Nat. Bank v. Brie R. Co., 22 App. like view in Martin v. Martin, 7 Md. Div. 526, 48 N. Y. Supp. 65; Peters 368, 61 Am. Dec. 364, is based "in V. Elkins, 14 Ohio, 344; Heidelbach, terms on a Pennsylvania decision, Seasongood & Co. v. Slader, 1 Handy which is, however, based on a local (Ohio) 456. See the statement of statute of that state (Act June 16, this view, with special reference to 1837) giving the purchaser at sher- the position of a purchaser under a ift's sale the right to rent under an prior mortgage, ante, § 73 c. existing lease. See as to this stat- 32 See Freeman, Executions, § 195; ute, post, at notes 57-62. Jones, Mortgages, §1 1654, 1897; Kle- 878 TRANSFER OF REVERSION. § I47 could be regarded as entitled to the rights of a reversioner as against the tenant, he would necessarily enjoy them subject to the same limitations as the lessor himself, and the result would be that the lien could be rendered practically valueless by the making of a long lease at an exceedingly low rent.^* The reason of the distinction referred to, however, lies deeper than this, in the very nature of a lien enforcible by sale. In Alabama there is a statutory provision that if land sold on execution or under a decree or mortgage is in possession of a tenant, notice to him by the purchaser, or his vendee, of the purchase, vests the right to possession in him, as if such tenant had attorned to him.^s This statute, it has been decided, does not create the relation of landlord and tenant between the pur- ehas&r and the tenant of the former owner, but merely precludes such tenant from asserting, as against the purchaser seeking to obtain possession, defenses which a tenant could not assert against his landlord.^" In Pennsylvania there is a statutory provision that if any lands or tenements sold under execution are, at the time of sale, in the possession of a tenant under a lease, the purchaser shall, upon receiving a deed, be deemed the landlord of such tenant with the like remedies to recover rent accruing after the acknowl- edgment of the deed to him.^^ This statute, while it does not change the rule that a purchaser under a judgment subsequent to the lease necessarily becomes the landlord,^^ has been held to give the purchaser under either a prior or a subsequent lien the option either to affirm the lease and treat the tenant as his ten- ant,^' holding him as such liable for rent,"" or to "disaffirm" the ••>i See American Freehold Land so American Freehold Land Mortg. Mortg. Co. V. Turner, 95 Ala. 272, Co. v. Turner, 95 Ala. 272, 11 So. 211. 11 So. 211. The opinion in this case 57 Act June 16, 1836, § 119; Pepper ■well states the effect of a sale under & Lewis' Dig., Execution, § 164. a prior lien, but is, it is submitted, ss Hemphill v. Tevis, 4 Watts & S. open to question in so far as it as- (Pa.) 535. serts that the tenant under the lease 59 Menough's Appeal, 5 Watts & is liable in use and occupation to S. (Pa.) 432; Borrell v. Dewart, 37 the purchaser, since the relation of Pa. 134; Hayden v. Patterson, 51 Pa. landlord and tenant is necessary to 261; Duff v. Wilson, 69 Pa. 316. support this action. The existence so Farmers' & Mechanics' Bank v. of such a relation is expressly denies Bge, 9 Watts (Pa.) 436; Hemphill in this case. v. Tevis, 4 Watts & S. (Pa.) 535. Ei:; Code 1907, § 5747. ^ ] 4N TRANSFEROR'S RIGHTS AND LIABILITIES. gyg lease, in which latter case the tenant, it is said, is a tenant at will, so long as he remains in possession,ei and is liable for use and occupation.^2 There are in some states statutory provisions with reference to the time from which a purchaser at execution sale shall be entitled to "the rents" of the premises, which might possibly be construed as placing the purchaser under a lien prior to the lease in the position of a reversioner. Other cases, besides those previously mentioned, in which the reversion is transferred by operation of law, quite frequently occur, as when it passes under bankruptcy or receivership pro- ceedings, or when it is sold by order of court to pay debts for purposes of partition.^s § 148. Transferor's rights and liabilities. The mutual rights and liabilities of lessor and lessee ai-e of a two-fold character, as being based either on "privity of estate" or on "privity of contract." Eights and liabilities based on priv- ity of estate are those which result from the existence of the rela- tion of tenancy, while those based on privity of contract are those which arise from covenants or other contracts entered into eithoi- by the lessor or lessee. Upon a transfer of the reversion, whether by voluntary act or by operation of law, the transferor ceases to be the landlord, and the privity of estate between him and the tenant thus coming to an end, he can no longer assert rights against the tenant I'ased thereon, nor be subjected to liabilities in that regard.^* As regards the rights of the lessor based upon the covenants or other contracts of the lease, that is, on privity of contract, it seems that, after the transfer of the reversion, since the benefits thereof pass to the transferee,*" the lessor has no right to assert 61 Bittlnger v. Baker, 29 Pa. 66, ton Delaware Falls Co., 7 N. J. Eq. 7a Am. Dec. 154; Adams v. McKes- (3 Halst.) 489; Stevenson v. Han- son, 53 Pa. 81, 91 Am. Dec. 183. cock, 72 Mo. 612; Evans v. Hamrick, 02 Stockton's Appeal, 64 Pa. 58; 61 Pa. 19, 100 Am. Dec. 595; Burns Mozart Bldg. Ass'n v. Friedjen, 12 v. Cooper, 31 Pa. 426. Phila. (Pa.) 515. o* See Walker's Case, 3 Coke, 22 a; csSee English v. Key, 39 Ala. 113;" Black v. Davis, Batty, 80. Wagner v. Cohen, 6 Gill. (Md.) 97, «•'' See post, § 149 b. 26 Am. Dec. 559; Corrigan v. Tren- 880 TRANSFER OF REVERSION. § 148 any claims on account of breaches occurring after the transfer,** though ho may as regards those previously occurring.®^ It has, however, been decided in one case that the original lessor could sue on account of the lessee's breach of his covenant to pay taxes, when he, the lessor, was under an obligation to his trans- feree, by reason of his covenant against incumbrances, to see that the taxes were paid and had accordingly paid them.*''* Though a lessor transferring his reversionary interest loses, it seems, any right of action for subsequent breaches of the les- see's covenants, he still remains liable on his own covenants, since one cannot, by his own act, without the consent of the other party, relieve himself from a contractual liability,®® the same principle being applicable here as in the case of an assign- ment of the leasehold, by which the original lessee is not re- lieved from liability on his covenants.**^ 06 Scheldt V. Belz, 4 111. App. (4 the reversion, he having expressly Bradw.) 431; Stoddard v. Emery, 128 reserved the right of action to re- Pa. 436, 18 Atl. 339, 5 L. R. A. 597; cover for any injury done to the Demarest v. Wlllard, 8 Cow. (N. Y.) premises during the term. The 206. And see to this eftect Green v. opinion does not clearly explain how James, 6 Mees. & W. 656; opinion- of one person can hy stipulation have Best, J., in Vernon v. Smith, 5 Barn, the right to recover for a subsequent & Aid. 1; 1 Smith's Leading Cases injury to another. It is said that he (8th Am. Ed.) 157, notes to Spencer's was compelled to sell for a lower Case; 2 Piatt, Leases, 386. price owing to injuries done to the That the lessor could not, after as- reversion, but, as explicitly stated signing, recover rent, has been not in the opinion, there was no right of infrequently stated or decided. Wal- action till the end of the term, and ker's Case, 3 Coke, 22 a; Doe d. the lessee might in the meanwhile Palmer v. Andrews, 4 Bing. 348, 356, have repaired. per Gaselee, J.; Peck V. Northrop, 17 o? See Anonymous, Skin. 367: Conn. 217; Abbott v. Hanson, 24 N. Midgley v. Lovelace, Carth. 289, Holt. J. Law (4 Zab.) 493; Grundin v. Car- 74; Harley v. King, 2 Cromp. M. & ter, 99 Mass. 15; West Shore Mills R. 18; 2 Piatt, Leases, 386. Co. V. Edwards, 24 Or. 475, 33 Pac. C7a Wills v. Summers, 45 Minn. 90, 987; Moore v. Turpin, 1 Sneer Law 47 N. W. 463. (S. C.) 32, 40 Am. Dec. 589; Lan- ss Carpenter v. Pocasset Mfg. Co., cashire v. Mason, 75 N. C. 455. 180 Mass. 130, 61 N. B. 816; Jones v. In Payne v. James, 42 La. Ann. Parker, 163 Mass. 564, 40 N. E. 1044, 230, 7 So. 457, it was decided that 47 Am. St. Rep. 485; Stuart v. Joy the lessor could sue upon a cove- [1904] 1 K. B. 362. nant to return the premises in good >» See post, § 157 a (2). condition, though he had transferred § 149 TRANSFEREE'S RIGHTS AND LIABILITIES. ggi s; 149. Transferee's rights and liabilities. a. By reason of privity of estate. As regards rights and lia- bilities arising from privity of estate, that is, from the relation of landlord and tenant, the transferee of the reversion, although merely by way of a concurrent lease,''" becomes substituted in the place of his assignor, whether the original lessor or a previous transferee. Accordingly the transferee may recover rent against the tenant, -vyhether the original lessee or an assignee of the leasehold, in an action of debt as distinguished from an action on the covenant to pay rent,''i though he cannot bring debt ' against the lessee for rent falling due after the latter has as- ' signed his term, since there is no privity of estate in such case to support it.''2 So the transferee has the same rights as his ' transferor to demand that the tenant refrain from either vol- ' untary or permissive wastej^ t^ig being a right based on privity of estate, and he has the same right as the lessor had to assert a forfeiture upon a disclaimer by the tenant of the tenancy,^* or upon a breach of an express condition in the lease.^^ b. By reason of privity of contract — (1) Statutory provi. sions. As regards the rights and liabilities arising from privity of contract, that is, from the covenants of the lease, the transferee of the reversion is in approximately the same position as the original lessor, so far as they are of such a character as to "run with the land." This is usually in terms based on the statute of 32 Hen. 8, e. 34, or of state statutes more or less similar thereto. Lord Coke and some of his contemporaries on the bench seem to have been of opinion that even at common law the benefit of covenants by the lessee at least to pay rent and repair passed 10 See ante, § 146 d, at notp 25. 72 Humble v. Glover, Cro. Eliz. "Walker's Case, 3 Coke, 22 a; 328; Walker's Case, 3 Coke, 22 a. Ards V. Watkin, Cro. Eliz. 637, 651; gee Allcock v. Moorhouse, 9 Q. B. Thursby v. Plant, 1 Wms. Saund. jj.^ ggg 237, 1 Lev. 259 ; Allen v. Bryan, 5 ^; ^ 3' 5 ^^^ 7^9^ g^^ S^.^^ ^ Bam. & C. 512; Howland v. CofiBn, » tt • .. i.,r , ^ .,...„,. ^ i4. Guyton & Hermgton Mule Co., 109 29 Mass. (12 Pick.) 125; Patten v. ^ ° Deshon, 67 Mass. (1 Gray) 325; Out- ^o. App. 557, 83 S. W. 1015. toun V. Dulin, 72 Md. 536, 20 Atl. 134. " Evans v. Enloe, 70 Wis. 345, 34 That recovery in an action of debt N. W. 918, 36 N. W. 22. for rent is based on privity of es- tb page v. Esty, 54 Me. 319. tate, see § 171, at note 123. li. and Ten. 56. 882 TRANSFER OF REVERSION. j I49 to transferees of the reversion,'^*' but this view is opposed by other authorities^^ as well as by the language of the recital in the statute just referred to. But whatever may have beeo the law before the statute, it has been the usual custom of the courts, in adjudicating questions of the rights and liabilities of transferees of the reversion, to base their decisions upon a statute. The statute of 32 Hen. 8, c. 34, passed shortly after the dis- solution of the monasteries and the confiscation of their property by the crown, after reciting, among other things, that by the common law no stranger to any covenant, action or condition could take any advantage thereof, but only such as were parties and privies thereto, enacted that all persons and bodies politic, their heirs, successors and assigns, having any gift or grant from the king of any lands or other tenements or hereditaments, or of any reversion of the same which belonged to the dissolved monasteries, or by any other means came to the king's hands, or which at any time before the passage of the act did belong or appertain to any other person or persons and thereafter t-ame to the king's hands, and also all other persons being tfrantors or assignees of the king or any other person, and their heirs, executors, successors and assigns, should have like ad- vantages against the lessees, their executors, administrators and assigns, by entry, for nonpayment of the rent or for doing waste or other forfeiture ; and by action only, for not performing other conditions, covenants or agreements, expressed in the indentures of leases and grants, against the said lessees and grantees, their executors, administrators and assignees, as the lessors and grantors, their heirs or successors, might have had. The second section provided that all lessees and grantees of lands or other tenements or hereditaments, for terms of years, life or lives, their executors, administrators or assigns, should have like action and remedy against all persons and bodies politic, their heirs, suc- cessors and assigns, having any gift or grant, of the king or any other person, of the reversion of the lands, tenements or heredita- ments so leased, or any parcel thereof, for any condition or cove- Tc See Athowe v. Heming, 1 RoUe, ti Barker v. Darner, 3 Mod. 336, 80,81; s. c, sub worn., Attoe v. Hem- Garth. 182; Thrale v. Cornwall, 1 mings, 2 Bulst. 281; Brett v. Cum- Wlls. (pt. 1) 165; Isherwood. v. Old berland. 1 Rolle. 359, 360, 3 Bulst. 163. know, 3 Maule & S. 382, 394. § 149 TRANSFEREE'S RIGHTS AND LIABILITIES. ggs nant expressed in the indentures of their leases, as the same lessees might have had against the lessors and grantors, their heirs and successors. Whatever may have been the purpose of this statute, and there seems some reason for inferring from its language that the purpose was to protect merely the crown and its assigns,'''^ its language seems sufficient, as has always been recognized, to give the lessors, and also to their assigns, the right to enforce co\- enants and conditions against lessees and their assigns, and to give reciprocal rights to lessees and their assigns, to enforce any covenant against the lessors and their assigns. There are in a number of the states of this country somewhat similar statutory provisions, the purpose of which is to make the burden and benefit of covenants and conditions in the lease pass to transferees of the reversion and also to assignees of the lease. The California statute"^ for instance, provides that the transferee of real property-, upon which rent has been reserved, or to whom any such rent is transferred, shall have the same remedies for recovery of rent, for nonperformance of any of the terms of the lease, or for any waste or cause of forfeiture, as his grantor or devisor might have had ; and that whatever remedies the lessor of real property has against his immediate lessee for the breach of any agreement in the lease, or for the recovery of the pos- session, he shall have against the assignee of the lessee, except where the assignment is made by way of security for a loan, and is not accompanied by possession of the premises ; and that what- ever remedies the lessee may have against the lessor for the breach of any agreement in the lease, he may have against the assigns of the lessor, and the assigns of the lessee may have against the lessor and his assigns, except upon covenants against incum- 7s A writer who has made a special "privity of estate" with the previous investigation of the question is of lessors, that is, they were not in the the opinion that the burden as well position of assigns, and that the as the benefit of covenants ran at effect of the statute was merely to common law in favor of and against dispense with the requirement of assigns, and that the statute of privity, it being in other respects Henry VIII was passed merely be- but declaratory of the common law. cause the crown and its assigns, hav- Sims, Covenants which Run with ing obtained the lands of the mon- the Land, pp. 66, 77, 80. asteries by forfeiture, were not in 79 Civil Code, §§ 821-823. 884 TRANSFER OF REVERSION. j I49 brances or relating to the title or possession. These provisions have been substantially adopted in other states, the legislation of which is moulded on that of California.^" In California *^ and at least one of these states, ^^ there are also provisions as to what cov- enants shall run with the land,^* which seem merely to re-enact the law as established in England. In still other jurisdictions there are provisions as to the effect of a transfer or assignment, more or less similar to those of California.^* In Mississippi and New Jersey ^^ the language of the English statute, omitting the recitals, is closely followed. In Illinois^" the statute provides that the grantees of any demised lands or of the reversion thereof, the assignees of "the lessor of any demise," and the heirs, and personal representatives of the lessor, grantee, or assignee, shall have the same remedies as their grantor or lessor might have had, and further that the lessees of any lands, their assigns or personal representatives, shall have the same remedy against the lessor, his grantees, assignees, or his or their representa- tives, as such lessee might have had, except with reference to covenants against ir-numbrances or relating to title or posses- sion. These provisions are sufficient to transfer the benefit of covenants to the transferee of the lessor or of the lessee, and perhaps to impose the burden thereof on the transferee of the reversion, but they do not appear to provide for the imposition of such burden on the transferee of the lessee. In the states in which there is no local enactment on the subject, presumably the English law upon the subject is ordinarily to be regarded as in forces'^ In two of such states, however, the contrary &o Idaho Civ. Code, §§ 2378-2380; Law, § 193; North Carolina Revi- Montana Rev. Codes 1907, §§ 4521- sion 1905, § 1989; yirflriwio Code 1904, 4523; North Dalcota Rev. Codes 1905, §§ 2781-2782; West Virginia Code §§ 4802, 4803; Oklahoma Rev. St. 1906, §§ 3394, 3395; Wisconsin Rev. 1903, i 3335; South Dakota Civ. St. 1898, §§ 2194-2195. Code, §§ 282, 283. s^ Mississippi Code 1906, §§ 2877, SI Civ. Code, §§ 1460-1466. 2878; 1 Gen. St. New Jersey, p. 881, s2 Montana Rev. Codes 1907, § §§ 136, 137. 4914-4921. 86 Kurd's Rev. St. 1905, c. 80, §f 83 Seei post, § 149 b (2). 14, 15. 84 Delaware Rev. Code 1893, p. 87 See Fisher v. Deering, 60 111. 868; District of Columlia Code 1901, 114; David Bradley & Co. v. Pea- § 1234; Burns' Rev. St. Indiana body Coal Co., 99 111. App. 427; Out- 1901, § 7099; New York Real Prop, toun v. Dulln, 72 Md. 536; Howland § 149 TRANSFEREE'S RIGHTS AND LIABILITIES. ggs has been asserted.ss The rights and liabilities arising from such covenants are, as we have before stated, based on privity of contract, and not on privity of estate, and the effect of the statute is, it seems, to transfer this privity of contract, along with the reversion.89'90 Apart from the English statute above stated, or any local statute of a similar character, it seems that the transfer of a reversion might be construed as intended to pass the right of action for subsequent breaches of covenants entered into by the lessee,3i so as to render applicable the doctrine, not appar- ently very modern,^^ allowing the assignee of a chose in action to sue thereon in the name of the assigiior,*^ or so as to bring V. Coffin, 29 Mass. (12 Pick.) 125; Keb. 439, 448, 468, 492; Sacheverell Patten v. Deshon, 67 Mass. (1 Gray) v. Froggatt, 2 Wms. Saund. (pt. 2) 325; Streaper v. Fisher, 1 Rawle 367 a; Brett v. Cumberland, 1 Rblle, rPa.) 155, 18 Am. Dec. 604. 359, 3 Bulst. 163; Midgley v. Love- s8 In Baldwin v. Walker, 21 Conn, lace, Garth. 289, Holt, 74, 12 Mod. 1G8, 181, it appears to be assumed 45; Isherwood v. Oldknow, 3 Maul« that the statute was not in force, but & S. 382, 395; Grogan v. Magan, Ale. the court in effect adopted it by re- & N. 366, 373. fusing to follow the common-law rule The English statute provides for that the transferee of the reversion the passing of the benefit of condi- is not entitled to the benefit of a tions as well as of covenants upon covenant by the lessor. a transfer of the reversion. Its There are in Ohio several cases in effect with reference to conditions which the statute is stated not to be will be considered in another con- in force. See Crawford v. Chapman, nection (post, § 194 g, at note 181), 17 Ohio, 449; Masury v. Southworth, and here we will consider its effect 9 Ohio St. 340; Sutliff v. Atwood, 15 as regards covenants only. Ohio St. 186; Taylor v. DeBus, 31 »i See Rawle, Covenants for Title, Ohio St. 473. But in Newburg Petro- § 226. leum Co. V. Weare, 44 Ohio St. 604, 02 See Pollock, Contracts (6th Ed.) the opinion refers to Spencer's Case, 204 et seq., and Appendix (F). 5 Coke, 16, as a controlling author- as That the transferee may so sue, ity. In this state the courts regard on the covenants in the instrument the transferee of the reversion as of lease, in the transferor's name, in entitled to sue upon the lessees' cov- cases not within the statute, see enants by force of the local statute Thompson v. Rose, 8 Cow. (N. Y.) allowing the assignee of a chose in 266; Hagar v. Buck, 44 Vt. 285, 8 Am. action to sue thereon in his own Rep. 368. And see, also, Bridgham name. See post, note 94. v. Tileston, 87 Mass. (5 Allen) 371; 89,90 See Walker's Case, 3 Coke, Allcock v. Moorhouse, 9 Q. B. Div. 22 b; Thursby v. Plant, 1 Wms. 366. But It might be questioned Saund. 237, 1 Lev. 259, 1 Sid. 401, 2 whether a remote grantee would S86 TRANSFER OF REVERSION. § I49 the case within one of the numerous state statutes allowing an assignee of a chose in action to sue thereon at law in his own name."* (2) Covenants which run with the land. The particular covenants, the benefit of which, or liability under which, pass to the transferee, by force of statute or otherwise, are said to "run with the land." or, less usually, "with the reversion." The covenants which run with the reversion will also, with few if any exceptions, run with the leasehold. That is, if a cov- enant entered into by the lessee is such that the benefit thereof will pass to a transferee of the reversion, the liability there- under will pass to a transferee of the leasehold, and -if, on the other hand, a covenant entered into by the lessor is such that the liability thereunder will pass to a transferee of the rever- sion, the benefit thereof will pass to a transferee of the Iea.se- hold. For this reason it is convenient and proper to consider in one place the various covenants which may run with the land, and the restrictions which may exist upon their running either with the reversion or with the leasehold. By Spencer's Case,^*" the leading case upon this branch of the law, certain limitations were imposed upon the passing of the burdens and benefits of covenants in leases. The more impor- tant of these limitations is to the effect that a covenant will not run with the land "if it be merely collateral to the land, and does not touch or concern the thing demised," that is, the land. Generally speaking, it seems, a covenant by the lessor or lessee will run as touching and concerning the land if it is such as to benefit either the landlord or tenant by reason of his relation to this particular land. The cases do not, however, assert any clear and satisfactory criterion in this regard, and it is neces- sary to refer to the various decisions upon the running of specific covenants. The following covenants have been held to be such as to have this right, the common-law force (ante, note 88), this effect has theory being that the assignee sued heen given to such a statute. Mas- as the attorney of the assignor. See ury v. Southworth, 9 Ohio St. 340; Pollock, Contracts (6th Ed.) 204; Smith v. .Harrison, 42 Ohio St. 180; Perkins v. Parker, 1 Mass. 117. Broadwell v. Banks, 134 Fed. 470. 0* In Ohio, where the statute of »4a 5 Coke, 16, 1 Smith's Leading; 32 Hen. 8, c. 34, is said not to be in Cases (11th Ed.) 55. § 149 TRANSFEREE'S RIGHTS AND LIABILITIES. §87 run with the land. For quiet enjoyment,*^ further assurance,'® renewal,''^ to terminate the tenancy on notice,"* or on a sale,9o to repair,i<"> to relinquish possession at the end of the term peace- ably or in good repair.^oi to repair, renew and replace fixtures constituting a part of the realty, but not mere chattels,!"^ in a mining lease, to pay for injury to the surface.i^s Also covenants .not to assiffnio* or sublet,"^ to sell the land to the lessee,!"" to »oNoke V. Awder, Cro. Eliz. 436; mo Spencer's Case, 5 Coke, 16; Campbell v. Lewis, 3 Barn. & Aid. Dean & Chapter of Windsor's Case, 392; Shelton v. Codman, 57 Mass. 5 Coke, 24; Williams v. Earle, L. R. (3 Gush.) 318. 3 Q. B. 739; Hayes v. New York Gold 96 Middlemore V. Goodale, Cro. Car. Min. Co., 2 Colo. 273; Gordon v. 503. George, 12 Ind. 408; Pollard v. Shaf- "Roe d. Bamford v. Hayley, 12 fer, 1 U. S. (1 Dall.) 230; Myers v. Bast, 464; Simpson v. Clayton, 4 Burns, 33 Barb. (N. Y.) 401; Mc- Bing. N. C. 758; MuUer v. Trafford Cardell v. Williams, 19 R. I. 701, 36 [1901] 1 Ch. 54; Leiter v. Pike, 127 Atl. 719; Silberberg v. Trachtenberg, 111. 287, 20 N. E. 23, 2 L. R. A. 549; 58 Misc. 536, 109 N. Y. Supp. 814. Leominster Gaslight Co. v. Hillery, loi Matures v. Westwood, Cro. Eliz. 197 Mass. 267, 83 N. E. 870, 15 L. R. 599; Martyn v. Clue, 18 Q. B. 661; A. (N. S.) 243; Leppla v. Mackey, 31 Morgan v. Hardy, 17 Q. B. Div. 770; Minn. 75, 16 N. W. 470; Blackmore Lehmaier v. Jones, 100 App. Div. V. Boardman, 28 Mo. 420; Blount v. 495, 91 N. Y. Supp. 687; Coburn y. Connolly, 110 Mo. App. 603, 85 S. Goodall, 72 Cal. 498, 14 Pac. 190, 1 W. 605; Piggot v. Mason, 1 Paige (N. Am. St. Rep. 75; Hayes v. New York Y.) 412; Wilkinson v. Pettit, 47 Gold Min. Co., 2 Colo. 273; Shelby v. Barb. (N. Y.) 230; Barclay v. Steam- Hearne, 14 Tenn. (6 Yerg.) 512; Pas- ship Co., 6 Phila. (Pa.) 558; War- teur v. Jones, 1 N. C. 393 (Conf. R. ner v. Cochrane, 63 C. C. A. 207, 128 194); Peck v. Christman, 94 111. Apii. Fed. 553. 435. In Leppla v. Mackey, 31 Minn. 102 Williams v. Earle, L. R. 3 Q. B. 75, 16 N. W. 470, it was decided that 739. a covenant by the lessor for renewal, ic Nerval v. Pascoe, 34 Law J. Ch. "unless the party of the first part 82. (the lessor) wishes the land for lo* Williams v. Earle, L. R. 3 Q. building purposes," was subject to B. 739; West v. Dobb, L. R. 4 Q. B. the same limitation in favor of the 634; Varley v Coppard, L. R. 7 C. transferee of the reversion, that is, P. 505. See post, § 152 i. he could refuse to renew if he wished los Brolaskey v. Hood, 6 Phila. to use the land for such purposes. (Pa.) 193. 98 Roe d. Bamford v. Hayley, 12 100 prout v. Roby, 82 U. S. (15 East, 464; Roberts v. McPherson, Wall.) 471 (semble); Robinson v. 62 N. J. Law, 165, 40 Atl. 630. Perry, 21 Ga. 183, 68 Am. Dec. 455; 8»Dierig v. Callahan, 35 Misc. 30, Page v. Hughes, 41 Ky. (2 B. Mon.) 70 N. Y. Supp. 210. 445; Maughlin v. Perry, 35 Md. 352; 888 TRANSFER OF REVERSION. § ] 49 purchase the lessee's improvements^'^^ provided at least assigns are named,i°* and provided further the improvements are not mere chattels, but are part of the land,^^^ and to allow the removal of the lessee's improvements.1^0 Also covenants to pay rent,^*^ or taxes and assessraents.ii^ or charges,ii8 and to allow redue- Peters v. Stone, 193 Mass. 179, 79 N. McClary v. Jackson, 13 Ont. 310; E. 336; Van Home v. Grain, 1 Paige Emmett v. Quinn, 7 Ont, App. 306. (N. Y.) 455; Lazarus v. Heilman, 11 im Gorton v. Gregory, 3 Best & S. Abb. N. C. (N. Y.) 93; Hagar v. 90. Buck, 44 Vt. 285, 8 Am. Rep. 368; "oThis seems to be assumed in Dietz V. Mission Transfer Co., 95 Snowden v. Memphis Park Ass'n, 75 Cal. 92, 30 Pac. 380 (semble). Tenn. (7 Lea) 225. The lessee may, by his conduct, m Stevenson v. Lambard, 2 East, become estopped to assert a right 575; Parker v. Webb, 3 Salk. 5; Wil- to a conveyance as against the trans- liams v. Bosanquet, 1 Bred. & B. feree of the reversion. Race v. 238; Midgleys v. Lovelace, 12 Mod. Groves, 43 N. J. Eq. 284, 7 Atl. 667. 45; Salisbury v. Shirley, 66 Cal. 223, A covenant by the lessor giving th« 5 Pac. 104; Baldwin v. Walker, 21 "refusal" to the lessee if the lessor Conn. 168; Allenspach v. Wagner, desires to sell has been held to run. 9 Colo. 127, 10 Pac. 802; Webster v. Laffan v. Naglee, 9 Cal. 662, 70 Am. Nichols, 104 111. 160; Outtoun v. Du- Dec. 678. lin, 72 Md. 536; Pfaff v. Golden, 126 In England it has been decided Mass. 402; Fennell v. Guffey, 139 that a covenant giving the lessee Pa. 341, 20 Atl. 1048; State v. Mar- an option to purchase does not run tin, 82 Tenn. (14 Lea) 92, 52 Am. with the land, it not concerning the. Rep. 167. land regarded as the subject-matter 112 Salisbury v. Shirley, 66 Cal. of the lease. Woodall v. Clifton 223, 5 Pac. 104; Hayes v. New York [1905] 2 Ch. 257. Gold Min. Co., 2 Colo. 273; In re 107 Hunt V. Danforth, 2 Curt. 592, Huddell, 16 Fed. 373; Peck v. Christ- Fed. Cas. No. 6,887; Bailey v. Rich- man, 94 111. App. 435; Mason v. ardson, 66 Cal. 416; Frederick v. Cal- Smith, 131 Mass. 510; Lehmaier v. lahan, 40 Iowa, 311; Stockett v. How- Jones, 100 App. Div. 495, 91 N. Y. ard, 34 Md. 121; Lametti v. Ander- Supp. 687; Wills v. Summers, 45 son, 6 Cow. (N. Y.) 302, 6 Wend. 326; Minn. 90, 47 N. W. 463; Hendrix v. Bailie v. Rodway, 27 Wis. 172; Ecke Dickson, 69 Mo. App. 197; Post v. V. Fetzer, 65 Wis. 55, 26 N. W. 266. Kearney, 2 N. Y. (2 Comst.) 394, 51 108 Bailey v. Richardson, 66 Cal. Am. Dec. 303; State v. Martin, 82 416, 5 Pac. 910; Thompson v. Rose, 8 Tenn. (14 Lea) 92, 52 Am. Rep. 167; Cow. (N. Y.) 268; Hansen v. Meyer, West Virginia, C. & P. R. Co. v. Mc- 81 111. 321, 25 Am. Rep. 282; Oving- Intire, 44 W. Va. 210, 28 S. E. 696; ton Bros. Co. v. Henshaw, 47 Misc. Commercial Bldg. & Loan Ass'n v. 167, 93 N. Y. Supp. 380; Bream v. Robinson, 90 Md. 615, 45 Atl. 449; Diekerson, 21 Tenn. (2 Humph.) Fontaine v. Schulenburg & Boeckler 126: Berrie v. Woods, 12 Ont. 693; Lumber Co., 109 Mo. 55, 18 S. W. I 149 TRANSFEREE'S RIGHTS AND LIABILITIES. ggg tions out of rent-^i-* Also covenants, in connection with the lease of a saloon, to buy all beer or wine from the lessor,!^^ and to conduct the house in a proper and orderly manner.^i® Also covenants by a lessee not to carry on any business,ii'^ or a par- ticular businesSjiis upon the premises, and covenants to reside on the premises.ii^ to continue a particular business thereon,i2o not to plough a part of the land,i2i not to cut timber,i22 not to sell ofi any hay or fodder but to leave all manure,i23 to leave cotton seed on the farm,i24 to manure the land,i25 to allow the lessor free passage," for himself and his licensees, over the prem- ises,^'^^ and to grind at the lessor's mill all corn grown on the demised premises.^^^ A covenant by the lessee to insure has been held to pass when by statute 128 qj. \yy ^^g terms of the covenant ^^^ the proceeds of insurance must go to rebuilding, and even when it is optional with the lessee whether so to apply the proceeds or to pay them over to the lessor.i^o A covenant to supply water has been regarded as running 1147, 32 Am. St. Rep. 648 (semble). no Tatem v. Chaplin, 2 H. Bl. 133. See ante, § 143 g. i=« Bradford Oil Co. v. Blair, 113 iisTorrey v. Wallis, 57 Mass. (3 Pa. 83, 4 Atl. 218, 57 Am. Rep. 442. Cnsh.) 442. 121 Cockson v. Cock, Cro. .Tac. 125. 114 Baylye v. Hughes, Cro. Car. 122 Verplanck v. Wright, 23 Wend. 137. (N. Y.) 506. 115 Clegg V. Hands, 44 Ch. Div. 123 Chapman v. Smith [1907] 2 Gh. 503; White v. Southend Hotel Co. 97. 11897] 1 Ch. 767; Manchester Brew- 134 Cobb v. Johnson, 126 Ga. 618, ery Co. v. Coombs [1901] 2 Ch. 608. 55 S. E. 935. And see citations in Hinde v. Gray, 125 Sale v. Kitchingham, 10 Mod. 1 Man. & G. 208, note. 158. 11" Fleetwood v. Hull, 23 Q. B. Div. i2e Cole's Case, 1 Salk. 196; s. c, 35. So in the case of a covenant to sub nam., Bush v. Colls, 1 Show. 389, conduct the business according to 127 Vyvyan v. Arthur, 1 Barn. & C. law. Crowe v. Riley, 63 Ohio St. 1, 415. 57 N. E. 956. 128 Vernon v. Smith, 5 Barn. & iiT Rolls v. Miller, 27 Ch. Div. 71. Aid. 1. 118 Granite Bldg. Corp. v. Greene. 120 Masury v. Southworth, 9 Ohio 25 R. I. 586, 57 Atl. 649; Bishop St. 340; Thomas v. VonkapfC, 6 Gill, of St. Albans v. Batteraby, 3 Q. B. & J. (Md.) 381; Douglass v. Murphy, Div. 359; Wertheimer v. Wayne 16 U. C. Q. B. 113. Circ. Judge, 83 Mich. 56, 47 N. W. iso Northern Trust Co. v. Snyder, 47, 10 L. R. A. 80. See ante, § 123 j. 22 C. C. A. 47, 76 Fed. 34. 890 TRANSl'^ER OF REVERSION. § | 49 with the la.iid,i-'i as has one by the lessee to comply with the rules and regulations of the lessor, a camp meeting associa- tion.i*2 And a covenant, in connection with the lease of a ware- house, with .reference to the settlement of any discrepancy be- tween the estimated contents and the actual contents,^** and one by a lessee to indemnify the lessor railroad company against any loss by reason of injury to property on the premises caused by fire started by the lessor's engine, have also been held to run.i** (3) Covenants which do not run with the land. A covenant by the lessor not to build or keep, within a certain distance of the demised premises, a hoxise for the conduct of the particular trade for which the lessee obtained the lease has been held not to concern the land so as to run therewith.i^^ And the same view was taken of a covenant by the lessor that the lessee should have exclusive trading rights for the whole settlement, which was located on land belonging entirely to the lessor in fee.^^® But it was decided in another jurisdiction that a covenant by the lessor of a mill site not to erect another mill within a named distance did touch and concern the land so as to run therewith.*^'^ A proviso for re-entry in case the lessee violates the game laws has also been held not to run.i^* An ajjreement by the lessor, 131 Jourdain v. Wilson, 4 Barn. & Bxch. 311. And see, to the same Aid. 266. See Shaber v. St. Paul effect, Herbert v. Dupaty, 42 La. Water Co., 30 Minn. 179, 14 N. W. Ann. 343, 7 So. 580. 874. 130 Taylor v. Owen, 2 Blaokf. 132 Round Lake Ass'n v. Kellogg, (Ind.) 301, 20 Am. Dec. 115. 141 N. Y. 348, 36 N. E. 326; Id., 47 "t Normau v. Wells, 17 Wend. N. Y. St. Rep. 668. 20- N. Y. Supp. (N. Y.) 136, 31 Am. Dec. 285. 261. That a covenant restraining com- 133 Beldeu v. Union Warehouse petition in trade, in a conveyance Co. 11 App. Div. 160, 42 N. Y. Supp. in fee, will not run, see Kettle 650. River R. Co. v. Eastern R. Co., 41 13* Northern PaciHc R. Co. v. Mc- Minn. 461, 43 N. W. 469, 6 Jj. R. A. Clure, 9 N. D. 73, 81 N. W. 52, 47 111. While Robbins v. Webb, 68 L. R. A. 149; Kennedy Bros. v. Iowa Ala. 393; National Union Bank v. State Ins. Co., 119 Iowa, 29, 91 N. W. Segur, 39 N. J. Law, 173, are con- 831. In the former case reference tra. See, for other covenants in was made to the fact that the rent such a conveyance which have been reserved was nominal, and that this held not to run, 1 Tiffany, Real covenant constituted part of the Prop. § 346. compensation for the land. iss Stevens v. Copp, L. R. 4 Bxch. 1=5 Thomas v. Hayward, L. R. 4 20. § 149 TRANSFEREE'S RIGHTS AND LIABILITIES. ggi not incorporated in the instrument of lease, to find tenants for part of the premises has been held not to run,"^ as has one, likewise existing outside of the instrument of lease, to put the premises in repair.'" Covenants by the lessee to pay a col- lateral sum to the lessor or to a stranger do not run,m and so a covenant for the payment of taxes on other land does not."*^ A covenant by the lessee to erect a structure on other land ^*^ will ordinarily not run, but this rule has been held not to apply when the structure was to be used in connection with, that is, "for the support and maintenance of," the land demised,^** and a covenant to make a street adjoining the premises has been regarded as running.i*^ ^ covenant by the lessee, on a lease of ground for the erection of a mill, not to employ mill hands from other parishes except on certain conditions, was held not to run,^*^ and the same view was taken of a covenant by a lessor to make a payment in respect of chattels substituted for chattels on the land at the time of the demise,^*'' and of a covenant to give the lessee the preference as to the purchase of other land.^*^ A covenant by the lessor to repair adjoining premises so as to avoid a re-entry for breach of condition under a head lease has been regarded as not rimning.i** In a number of cases in this country it has been decided that a covenant giving the lessee the option of purchasing the land will riiniiso but in England a different view has been adopted, on 139 Henck v. Barnes, 84 Hun, 546, us Spencer's Case, 5 Coke, 16. 32 N. Y. Supp. 840. The fact that 144 Sampson v. Basterby, 9 Barn. the purchaser of the premises was & C. 505, 6 Bing. 644. .ignorant of the existence of the 145 Morris v. Kennedy [1896] 2 Ir. agreement was also referred to as 247. relieving him from liability there- 140 Mayor of Congleton v. Pattison, on. 10 East, 130. 140 Tobey v. Mattimore, 54 Misc. H7 Gorton v. Gregory, 3 Best. & S. 231, 104 N. Y. Supp. 393. 90. But see Mansel v. Norton, 2k; 141 Spemcer's Case, 5 Coke, 16; ch. Div. 769. Mayho v. Buckhurst, Cro. Jac. 438; i48 Collison v. Lettsom, 6 Taunt. Chaworth v. Phillips, Moore, 876; 224. See Keppell v. Bailey, 2 Myln© Dolph V. White, 12 N. Y. (2 Kern.) & k. 517, 544. 296. 149 Dewar v. Goodman [1908] 1 i42Gower v. Postmaster-General, k. B. 94. 57 Law T. (N. S.) 527. ir.oSee ante, note 106. 892 TRANSFER OF REVERSION. § 1 49 the theory that the covenant does not concern the land, regarded as the subject-matter of the lease.^^i The benefit or burden of a covenant will not pass, it seems, if it is expressed so as to show a clear intention that it shall be purely personal.^ ^^ The benefit of a covenant restricting the character of the use to be made by the lessee of the leased prem- ises does not pass to a transferee of the reversion, if it was evi- dently intended for the benefit of the adjoining property, also owned by the lessor.^'^ A covenant, made in connection with a sublease of part of the leased premises, that the sublessee shall hold the part srableased free and clear of all rent other than that reserved by the sub- lease, though it runs with the reversion in the part subleased, does not bind a transferee of that part of the premises included in the original lease which is not included in the sublease.^^* (4) Necessity of mention of assigns. A second important qualification imposed by Spencer's Case upon the running of covenants is that, even though the covenant touch or concern the land, if it concerns likewise a thing which is not in esse at the time of the demise, but which is to be built or created thereafter, the covenant will not bind assigns unless they are expressly men- tioned. So, in that case, it was decided that a covenant by the lessee to build a wall on the premises did not bind his assigns because he covenanted only for himself, his executors and ad- ministrators, without including assigns. This distinction be- tween covenants as to things in esse and those as to things not in esse, with its requirement of the mention of assigns in the latter case, has been questioned,!^'* and occasionally repudi- isiWoodall V. Clifton [1905] 2 '-■4Wahl v. BarroU, 8 Gill. (Md.) Ch. 257. 288; Cook v. Arundel, Hardres, 87. 152 Kemp V. Bird, a Ch. Div. 549, iss Minshull v. Oakes, 2 Hurl. & 974; Myers v. Stone, 128 Iowa, 10, N. 793. In this case it was said by 102 N. W. 507, 111 Am. St. Rep. 180. Pollock, C. B., that not only was the In Eccles v. Mills [1898] App. Cas. rule unreasonable, but that Spen- 360, there is a dictum that a provi- cer's Case decided the contrary, re- gion that no covenant or stipulation ferring to Anonymous, Moore, p. shall be implied showed that a par- 159, pi. 300, as being another report ticular covenant was not to run. of this case. This case, however, No reason for such a conclusion is while directly contrary to the reso- stated. lution in Spencer's Case, Is evident- i53Thruston v. Minke, 32 Md. 487. ly a different case, as shown by the § 149 TRANSFEREE'S RIGHTS AND LIABILITIES. ggg ated,^''® or ignored.iBT Usually, however, it has been adhered to.^^* In two cases it has apparently been regarded as appli- cable only in so far as an intention did not otherwise appear that assigns should be bound.^^sa (5) Demise of incorporeal thing. It has been held that under the statute of 32 Hen. 8, c. 34, a covenant may be created on a demise of an incorporeal thing, an action on which may be brought by or against the grantee of the reversion,*^* g^id whether the covenant is such as to run in such case, that is, in the case of a demise of the mere right to use land for a specific editor of Smith's Leading Cases 7 Out. App. 306; McCIary v. Jackson, (see 8th Am. Bd., vol. 1, p. 155). 13 Ont. 310; Etowah Min. Co. v. Barop Pollock also cites Smith v. Wills Valley Min. & Mfg. Co., 121 Arnold, 3 Salk. 4, as contrary to Ala. 672, 25 So. 720; Hansen v. Spencer's Case in this regard, but Meyer, 81 111. 321, 25 Am. Rep. 282; concludes, without undertaking to Gardner v. Watson, 18 111. App. 386; absolutely overrule Spencer's Case, Id., 119 111. 312, 10 N. E. 192; Tail- that "in the present case we think man v. Coffin, 4 N. Y. (4 Comst.) It sufficient to say that as the cov- 134; Coffin v. Tallman, 8 N. Y. (4 enant is not a covenant absolutely Seld.) 465; Bailey v. Richardson, 66 to do a new thing, but to do some- Cal. 416, 5 Pac. 910; Bream v. Dick- thing conditionally, viz., if theM are erson, 21 Tenn. (2 Humph.) 126; new buildings to repair themWas Cronin v. Watkins, 1 Tenn. Ch. 119; when built they will be part of Thp Fisher's Ex'rs v. Lewis, 1 Clark thing demised, and subsequently th*^ (Pa.) 422; Thompson v. Rose, 8 Cow. covenant extends to its support, and (N. Y.) 266. See Conover v. Smith, as the covenant clearly binds the 17 N. J. Eq. (2 C. B. Green) 57, 86 assignee to repair things in esse Am. Dec. 247. In Douglaston Real- at the time of the lease, so does it ty Co.,^ v. Hess, 124 App. Div. 508, also those in posse, and consequent- 108 N. Y. Supp. 1036, the expression ly the assignee is bound. There is "legal r^iresentatives" was regarded only one covenant to repair; if the as equivalsnt to "assigns" for the assignee is included as to part, purpose of the rule, why not as to all?" issa Peters v. Stone, 193 Mass. 179, 156 Frederick v. Callahan, 40 Iowa, 79 N. E. 336; Masury v. Southworth,. 311; Masury v. Southworth, 9 Ohio 9 Ohio St. 340. St. 340; Ecke v. Fitzer, 65 Wis. 55, i59 Bally v. Wells, 3 Wils. 25; 26 N. W. 266. Hooper v. Clark, L. R. 2 Q. B. 200; isr Bailie v. Rodway, 27 Wis. 172; Martyn v. Williams, 1 Hurl. & N. Stockett V. Howard, 34 Md. 121; Am- 817, 829; Hastings v. North Eastern brose v, Fraser, 12 Ont. 459, 14 Ont. R. Co. [1898] 2 Ch. 674 [1899] 1 Ch. 551. 656, afd., sub. nom.. North Eastern 168 Doughty V. Bowruan, 11 Q. B. R. Co. v. Hastings [1900] App. Gas. .444; Grey v. Cuthbertson, 4 Doug. 260. 351, 2 Chit. 482; Bmmett v. Quinii 894 TRANSP^ER OF REVERSION. § 24g purpose/"" is to be determined, it seems, by the same consider- ations as would apply in the case of a demise of the land itself.' *i (6) Covenants relating to personal chattels. It was re- solved in Spencer's Case i^^ ^^at covenants relating to personal chattels cannot run with such property, as covenants run with land, "for in the case of a lease of personal goods there is not any privity, or any reversion, but merelj' a thing in action in the personalty, which cannot bind any but the covenantor, his executors or administrators, who represent him;" and that therefore, "if a man leases sheep, or other stock of cattle, or any other personal goods for any time, and the lessee covenants for him and his assigns at the end of the time to deliver like cattle or goods as good as the things letten were, or such price for them; and the lessee assigns the sheep over, this covenant shall not bind the assignee, for it is but a personal contract" and "the same law, if a man demises a house and land for years, with a stock or sum of money rendering rent, and the lessee covenants for him, his executors, administrators, and assigns, to deliver the stock or sum of money at the end of the term, yet the assignee shall not be charged with this covenant, for although the rent reserved was increased in respect of the stock or sum, yet the rent did not issue out of the stock or sum, but out of the land only." And so it has been decided that upon a lease of land and goods, with a covenant by the lessee that he will return the same or similar goods at the end of the term, an assignee of the lessee's interest under the lease cannot be held liable for a breach of the covenant,!^- and the transferee of the reversion cannot recover for such breach.^"* Biit the fact that personal chattels are included in a lease of land does not pre- vent the running with the land of the covenant for rent,^^^ or presumably of any covenant which concerns the land. (7) Leases not under seal. The statute of 32 Hen. 8, c. 34, ap- plies in terms only to "indentures of lease," and consequently i«o See ante, § 24 a. le-i Allen v. Culver, 3 Denlo (N. Y.) II" See Hooper v. Clark, L. R. 2 284. Q. B. 200. "■'■Allen v. Culver, 3 Denlo (N. 162 5 Coke, 16, 1 Smith's Leading Y.) 284; SutlifC v. Atwood, 15 Ohio Cases (11th Ed.) 55. See Allen v. St. 186; Burnett v. Lynch, 5 Barn. Culver, 3 Denio (N. Y.) 284. & C. 589. 163 Smith v. Kellogg, 46 Vt. 560. § 149 TRANSFEREE'S RIGHTS AND LIABILITIES. ^95 does not enable a transferee of the reversion, in the case of a lease not incorporated in an instrument under seal, to sue on the stipulations entered into by the lessee J 6« The English courts have, however, adopted a doctrine in the case of a ten- ancy from year to year, that if rent is accepted by the trans- feree of the reversion, and he fails to exercise his right to ter- minate the tenancy by notice, it may be inferred that the parties have agreed to go on upon the same terms as before, the rights and liabilities arising from the stipulations in the unsealed in- strument of lease being thus transferred to the transferee of the i-eversion.i«^ Such a doctrine has apparently never been applied in the case of an ordinary tenancy for years, and it seems to have been regarded as inapplicable thereto, since no right of ter- minating such a tenancy by notice is recognized.i^s indeed the doctrine, as applied to the ease of a tenancy from year to year, is somevfhat difficult to understand, although asserted by emi- nent judges, since, so long as the tenancy from year to year has not been terminated, there seems no room for an agreement to go on upon the same terms as before. There being a demise from year to year, the reversion on which has passed to another, how can it be inferred, from the fact that the parties have failed to terminate the tenancy by notice, that another tenancy, with a new covenant, has been substituted in place of the former tenancy? There would seem to be more room for the inference of a new demise when the old tenancy has been terminated by notice or otherwise, than when not so terminated. Perhaps it is meant that the former tenancy should be regarded as ter- minated by a new demise inferred from the acts of the parties on the theory of surrender by operation of law,i«9 but the dif- ficulty still remains, it is submitted, of inferring a new demise I'icSee Bickford v. Parson, 5 C. P. 334; Manchester Brewery Co. v. B 920 932; Standen v. Chrismas, loCoombs [1901] 2 Ch. 608. Q. B. 135; Elliott v. Johnson, L. R. "' See Standen v. Chrismas, 10 Q. 2 Q. B. 120; Sheets v. Selden's Les-^; ^^S, distinguishing Buckworth y. , Simpson, 1 Cromp. M. & R. 834, see, 69 U.S. (2 Wall.) 177; Kennedy ,j,y^^ 3^^^ 3^^^ ^^p^^ ^^^p^^^ V. Owen, 136 Mass. 199. g^j^j^ ^ Eggington, L. R. 9 C. P. i«T Buckworth v. Simpson, 1145^ giid Elliott v. Johnson, L. R. 2 Cromp. M. & R. 834, 5 Tyrw. 344, q. b. 120. 354; Cornish v. Stubbs, L. R. 5 C. 1 so See post, § 190 b. 896 TRANSFER OF REVERSION. §149 from the mere failure to terminate the former tenancy, and the continued payment of rent thereunder.-^" The local statutes in this country, providing for the passing^ of the rights and liabilities in connection with the covenants or contracts of the lessor or lessee,^ ^^ ordinarily contain no re- quirement that the lease be under seal. Tu Mississippi and New Jersey the language of the English statute, making it applicable to "indentures of lease" only, is adopted. An action by the transferee of the reversion upon a stipulation by the lessee, when not maintainable under the statute by reason of the absence of a seal, might be sustained, undfer some circum- stances and in some jurisdictions, as an action by the assignee of a chose in action, by force of the common-law rule allowing such action in the assignor's name, or under a local statute authoriz- ing an action by an assignee in his own name.^^^ rpjig j,gn^ j.g, served could always, without reference to the contract to pay rent, be recovered by the transferee of the reversion by reason of privity of estate, that is, an action of deb+ ^or rent could be maintained by him. (8) Title of lessor. There are decisions in En^isau at least suggesting the view that, if a lessor has no title at the time of 170 In Rising Sun Lodge v. Bi'.ck, stipulation to assume another per- 58 Me. 426, the lessor "covenanted" son's obligations can not properly to make repairs, and subsequently, be regarded as based on a contract after the lessee had assigned his in- implied by law. (See ante, § 53 b, terest, conveyed the property "sub- at note 58 a.) It -would rather seem ject to all his liability to the" les- that the liability to the lessee's as- see's assignee "with reference to" signee in such case, conceding such the leased premises, and it was held liability to exist, is upon the ex- that such assignee could sue the les- press contract to pay or perform, sor's assignee in assumpsit for the the case being then one of a right of expense of repairs on the theory that action on a contract In favor of one when one takes a conveyance subject not a party thereto, to a stipulation to pay money or per- i^i See ante, notes 79-84. form a duty, a promise will "be im- In Keeley Inst. v. Shaw, 149 Mich, plied" in favor of a third person 519, 14 Det. Leg. N. 499, 113 N. W. who is to benefit by such payment 30, it was held that the benefit of or performance. It appears that by an oral contract to repair would pass the use of the word "implied" the upon an assignment of the lease- court means that the liability is on hold If it was so agreed, the theory of quasi contract. But i'^ See ante, at notes 91-94. a liability thus arising from express § 149 TRANSFEREE'S RIGHTS AND LIABILITIES. 897 making the lease, he has no reversion in the land with which covenants may run, and that consequently one to whom he undertakes to transfer the reversion cannot sue on the covenants of the lease.1'73 This view, which was suggested in connection with cases of estof)pel by deed, that is, cases in which the les- sor and lessee ware estopped by their seals to deny the existence of the relation of landlord and of tenant, and of the reversion in the former necessary to the existence of this relation,!'^* has now been repudiated, as applied at least to cases in which the lessor's lack of title does not appear upon the face of the in- denture of lease ;^^" and presumably, by inference from recent English decisions which regard a lessor as having a sufficient reversion to support a distress even though the lack of title does appear from the face of the indenture,!'^® a right of action, in favor of the transferee of the lessor, upon a covenant of the lease, would be there upheld although defects in the lessor's title do so appear. And so, while there is an English decision appar- ently to the effect that since, when it appears from the instru- ment itself that the lessor has no title, no estate is vested there- by in the lessee, with which covenants can run, and that conse- quently the burden or benefit thereof does not pass on an as- signment of the lease,^'^'^ it seems probable that, in view of the later decisions referred to. the lessee would be regarded as hav- "SNoke V. Awder, Cro. Eliz. 436; 12 Moore, 34); Morton v. Woods, L. Whitton V. Peacock, 2 Bing. N. C. R. 3 Q. B. 658, L. R. 4 Q. B. 293, 303. 411; Carwick v. Blagrave, 1 Brod. & See ante, § 78 K (3), at note 399. B. 531. 1'^ Portmore v. Bunn, 1 Barn. & 17* See ante, § 178 a. C. 694 (post, § 160, note 505). 175 Cuthbertson v. Irving, 4 Hurl. In Saunders v. Merryweather, 3 & N. 742, 6 Hurl. & N. 135. And see Hurl. & C. 902, it was held that the Gouldsworth v. Knights, 11 Mees. & assignee of a lease of mortgaged W. 337; Palmer v. Ekins, 2 Ld. premises, created by an indenture in Raym. 1550. In Cuthbertson v. Irv- which both the mortgagor and mort- ing, supra, approval is expressed of gagee joined, was, since the true Pargeter v. Harris, 7 Q. B. 708, hold- state of the title appeared from re- ing that if the lease itself shows that citals in the indenture and in the the lessor has no legal title, the assignment, not estopped to assert, benefit of the covenant does not pass in ejectment by the mortgagor to to an assignee of the reversion. enforce a right of re-entry, that the i'» Jolly v. Arbuthnot, 28 Law J. mortgagor had not the legal rever- Ch. 547 (citing Dancer v. Hastings, sion. E. and Ten. 57. 898 TRANSFER OF REVERSION. §]49 ing an estate for the purpose of imposing liability upon his assignee under such covenants as ordinarily run with the land. With reference to this doctrine of the English courts, con- ceding that it might still be applied by them to the extent of allowing a lessee or assignee of the lessee to defend an action by the lessor's transferee on a covenant, provided the lessor's lack of title appears in the instrument of lease, it might be questioned whether it can frequently occur that the lessor has no title, that is, no estate in the land. Having no paper title, he is not likely to make a lease unless iic has at least the possession of the land, and one who is wrongfully in possession has ordinarily an estate in fee simple by wrong,'^* and a transfer of such an estate would seem to be quite as sufficient to carry the <'ovenants as would the transfer of a rightful fee simple. The statute of 32 Hen. 8, c. 34, has been recognized as being effective for the transfer of rights and liabilities to the transferee I if the reversion, irrespective of whether the reversion is in fee simple,^"^ for lite,^®" or for years-i"^' But if the covenantor has a limited interest only at the time of the covenant, as for in- stance an estate for life, one to whom he transfers such limited , interest is bound b\' the covenant as regards such interest only, and not as regards a greater estate, such as one in fee, which he may happen to acquire.i*^ Since, in order that a covenant may pass on a transfer of the reversion, it is necessary that the covenant shall have been made with the reversioner, it has been decided that when a mort- gagor and mortgagee join in the making of a lease, the assignee of the mortgagee can not sue on covenants made with the mort- gagor only.'^' But when the covenant was made in connection with a lease hy a life tenant under a power, the remainderpaan was allowed to sue thereon, the lease being in such ease in legal effect made by the creator of the power. i**"* 11-8 See ante, § 78 a, at note 174 a. Dowse v. Cale, 2 Vent. 126, 3 Lev. "9 Hill V. Grange, 2 Dyer, 130 b. 264. See post, note 209. isoThursby v. Plant, 1 Mees. "^Brereton v. Tuohey, 8 Ir. C. L. Saund. 237, 1 Lev. 259, 1 Sid. 401; ^^^' ^^^^ v. Stoney, 9 Ir. Ch. 249; Co. Lltt. 215 a. isi Matures v. Westwood, Cro. Bllz. Coey v. Pascoe [1899] 1 Ir. 125; MuUer v. Trafford [1901] 1 Ch. 54. 183 Webb V. Russell, 3 Term R. 617; Bristow v. Bristowe, Godb. 161; 393; Russell v. Stokes, 1 H. Bl. 562. Davy V. Matthew, Cro. Eliz. 649; 1 «4 isherwood v. Oldknow, 3 Maule § 149 TRANSPEIREE'S RIGHTS AND LIABILITIES. ^99 (,9) Breaches previous to transfer. The transferee of the reversion has, ordinarily, no right of action in respect of breaches of covenant which occurred before the making of the trans- fer .is^ A reason which has been given for this rule is the doctrine that a right of action is not transferable.ise This rea- son does not seem sufficient, however, since if the statute of 32 Hen. 8, c. 34, or the corresponding state statute, were construed as covering such right of action, the doctrine referred to would necessarily have yielded thereto, and the right of action for past as well as future breaches would have passed by the transfer of the reversion. The soundness of the reason advanced be- comes of importaiico in ^•iew of the numerous statutory provi- sions making rights of action transferable, and it does not seem that, even where such a provision is in force, the right of action for past breaches would ordinarily pass. The owner at the time of the breach is ordinarily the person injured thereby, and this in itself seems sufficient reason for the view that, prima facie, the right of action for a past breach is not intended to pass by a transfer of the reversion. In jurisdictions where rights of action are transferable, however, provided the lan- guage of the instrument of transfer can be construed as in- tended to convey rights of action for past breaches, the trans- feree will no doubt have the right to sue thereon,^*'' and if such intention appears, he would seem to have such right of action in the transferor's name, apart from any statute.!*^ Not only is the transferee of the reversion ordinarily unable to recover for a breach of the lessee's covenant occurring before the transfer, but he is as well exempt from liability for a breach of a covenant by the lessor, occurring before the transfer, pro- & S. 382; Greenaway v. Hart, 14 C. B. iso Lewes v. Ridge, Cro. Eliz. 863; 340. 2 Piatt, Leases, 386. 185 Lewes v. Ridge, Cro. Eliz. 863; ist Quttoun v. Dulin, 72 Md. 536, Johnson v. Parish of St. Peter, 4 20 Atl. 134, 6 L. R. A. 706. A trans- Adol. & E. 520; Flight v. Bentley, 7 fer of all the lessor's "interest, right Sim. 149; Canham v. Rust, 8 Taunt, and title in the lease," which had 227; Cohen v. Tannar [1900] 2 Q. B. at the time of the transfer expired, 609; Gerzebek v. Lord, 33 N. J. Law, was held to pass a right of action for 240; Mirlck v. Bashford, 38 Barb, a previous breach of covenant. In- (N. Y.) 191; Coffin v. Talman, 8 N. dianapolis Natural Gas Co. v. Pierce, Y. (4 Seld.) 465; Shelby v. Hearne, 25 Ind. App. 116, 56 N. E. 137. 14 Tenn. (6 Yerg.) 512. "s See ante, at note 93. 900 TRANSFER OF REVERSION. § 14i> vided the breach is not to be regarded as continuous in its na- ture.i*^ The transferor, not the transferee, violated the cov- enant, and consequently he is the one to be made liable. The rule that the transferee cannot sue for a breach which took place in the time of his transferor does not, it has been held, preclude a suit by him on a covenant to repair without notice, although the premises were out of repair before the transfer, provided it is the transferee who gives the notice.^®" And the transferee can sue for breach of a contract to keep the premises in repair, if they are out of repair after the transfer.^^^ The benefit of or liability under a covenant to make certain improve- ments on the leased premises within a time named cannot pass upon a transfer made after that time, since the breach took place before the transfer,*"- and the same principle would apply to a covenant to put the premises in repair or make specific im- provements, although no time for performance is named, if it is to be construed as calling for a single act of performance prior to the time of the transfer.*"'' In some eases, however, such a covenant has been regarded as passing on a transfer,*"* without any discussion of the point in question, but on the theory, presumably, that the covenant was continuing until ac- tual performance, or that the time for performance had not elapsed at the time of the transfer. (10) Mode of transfer. In the ordinary case the question as to the running of a covenant arises in connection with a volun- tary transfer inter vivos. But, to the same extent as one claim- ing under such a transfer, a devisee of the reversion is entitled 189 Willcox V. Kehoe, 124 Ga. 484, Churchwardens of St. Saviour t. 52 S. E. 896, 4 L. R. A. (N. S.) 466; Smith, 1 Wm. Bl. 351, 3 Burrow Gerzebek v. Lord, 33 N. J. Law, 240; 1272; Morris v. Kennedy [1896] 2 Ir. Mirick v. Bashford, 38 Barb. (N. Y.) 247. 191. 193 Coward v. Gregory, L. R. 2 C. 180 Mascal's Cas'e, 1 Leon (pt. 1) P. 153; Gerzebek v. Lord, 33 N. J. 62. ' Law, 240; Mirick v. Bashford, 3S 191 Bennett v. Herring, 3 C. B. Barb. (N. Y.) 191. (N. S.) 370. See, as to the trans- loi Martyn v. Clue, 18 Q. B. 661; feree's right to sue under such a Harris v. Goslin, 3 Har. (Del.) 338; covenant on account of a state of Sampson v. Basterby, 9 Barn. & C. disrepair which existed before the 505, 6 Bing. 644. See Spencer's transfer, ante, § 116 1, at note 1003. Case, 5 Coke, 16 a. i»3Grescot v. Green, 1 Salk. 199; § 149 TRANSFEREE'S RIffHTS AND LIABILITIES. 90I to the benefit of, and is subject to liabilities under, the covenants contained in the instrument of lease.i^s One to whom the reversion passes by descent, that is, the heir of one having an estate in fee simple in reversion, may sue for breaches, occurring after the ancestor's death, of covenants which run with the land,!^^ though for breaches which occurred iu the ancestor's lifetime the personal representative is the per- son to sue.^8'' Even though there is a continuing breach in the time of both ancestor and heir, yet if the substantial breach is in the time of the latter, he is the proper party to sue.^^* The fact that the covenant is not in terms with the lessor "and his heirs" does not affect the heir's right of action, if the covenant is otherwise such as to run with the land.*^^ One taking by descent the reversion in the land demised is necessarily liable for breaches of covenants which run with the land, committed after the ancestor's death, 2"" to the same extent as one who obtains the reversion by voluntary transfer inter vivos. This liability is independent of any question as to the naming of the heir in the covenant,^^! which was necessary at common law for the purpose of imposing liability upon the issMachel v. Dunton, 1 Leon. (pt. ton, 2 Lev. 26, 1 Vent. 175, 2 Keb. 2) 33, Owen, 54, 91; Roe d. Bamford 831. V. Hayley, 12 East, 464; Sampson v. 10s Vivian v. Champion, 2 Ld. Easterby, 9 Barn. & C. 505, 6 Bing. Raym. 1125, 1 Salk. 141, Holt, 178; 644. Lougher v. Williams, 2 Lev. 92; As to whether, in view of the pecul- Kingdon v. Nottle, 1 Maule & S. 355, iar language of the lease, the dev- 4 Maule & S. 53; Hendrix v. Dick- Isee or the executor was liable as son, 69 Mo. App. 197. between themselves for breach of a 109 Lougher v. Williams, 2 Lev. 92 ; covenant by the lessor, see Eccles v. Sacheverell v. Froggatt, 2 Wms. Mills [1898] App. Cas. 360. Com- Saund. 367 a, T. Raym. 213, 1 Vent, pare post, as to liability of execu- 148, 161, 2 Lev. 13; Anonymous, 1 tors of lessee, § 158 a (2) (g). Dyer, 45. 108 Lougher v. Williams, 2 Lev. 92; 200 Morse v. Aldrich, 36 Mass. (in Sale V. Kitchingham, 10 Mod. 158; Pick.) 449, 31 Am. Dec. 150; Cham- King V. Jones, 5 Taunt. 418; Jones berlain v. Dunlop, 126 N. Y. 45, 26 T. King, 4 Maule & S. 188. See N. E. 966, 22 Am. St. Rep. 807 (sem- Prout V. Roby, 82 tJ. S. (15 Wall.) ble) : Derisley v. Custance, 4 Term 471. R. 75; 2 Piatt, Leases, 364. 187 Raymond v. Fitch, 2 Cromp. M. 201 Morse v. Aldrich, 36 Mass. (19 & R. 588, 598; Ricketts v. Weaver, Pick.) 449, 31 Am. Dec. 150'. 12 Mees. & W. 718; Lucy v. Leving- 902 TRANSFER OF REVERSION, § ]49 heir, to the extent of the assets coming to him by descent, in connection with covenants not of such a character as to run with the land.202 In jurisdictions in which the legal title passes upon the making of a mortgage, covenants run in fa\ror of or against a mortgagee of the reversion,203 or of the leasehold.^*'^ One to whom an equitable interest merely is transferred can- not avail himself of the covenants of the lease, and so if the les- sor makes a mortgage which vests the legal title in the mort- gagee, a subsequent grantee of the lessor cannot sue on the covenants.^''^ Nor would such equitable transferee, it seems, be liable on the lessor's covenants. ^o^a (11) Transfer of partial int-srest. Covenants run in favor of or against the transferee although the transfer is of merely a part of the premises leased,""'' or of an undivided interest therein,2o^ and also when the transfer, instead of being of all the 202 As to this common-law require- dee from acquiring actual possession ment of the mention of heirs in of lands under a verbal contract order to impose liahility on the of sale involving future payments heir of a covenantor, see Rawle, to his vendor and the acquisition of Covenants for Title (5th Ed.) 309; a complete title." There is, to be 2 Piatt, Leases, 363; Piatt, Cove- sure, nothing in the statute of frauds nants, 448 et seq. prohibiting such a course of action, 203 Chapman v. Smith [1907] 2 Ch. but that does not necessarily make 97. it effective for every purpose. The 204 See post, § 158 f. opinion does not explain how the 205 City of Carlisle v. Blamire, 8 legal title to the reversion can, in East, 487. spite of that statute, be transferred In McLean v. Spratt, 19 Fla. 97, orally, it was held in effect that an oral' 205a Compare post, § 158 a ( 2 ) contract of sale made by a landlord, (d). accompanied by a recognition by the 2o« Ards v. Watkin, Cro. Eliz. 637, tenant, as well as by the parties to 651; Twynam v. Pickard, 2 Barn. & the sale, that thereafter he held Aid. 105'; Leiter v. Pike, 127 111. 287, under the purchaser, was sufScient to 20 N. E. 23, 2 L. R. A. 549. And give the latter the rights of a land- so, if there has been a merger as lord, apparently, as vesting in him to part of the premises, the trans- the legal title. The opinion states feree of the reversion in the bal- that the acts mentioned "were equiv- ance has the benefit of the covenants alent in law to the delivery of the to the extent of his interest. Bad- actual possession by vendor to ven- ley v. Vigurs, 14 El. & Bl. 71. dee, and there is nothing in the stat- 207 Roberts v. Holland [1893] 1 Q. ute of frauds which prohibits a ven- B. 665. § 149 TRANSFEREE'S RIGHTS AND LIABILITIES. 993 reversionary interest, is by way oi" a lease, which is concurrent, as before explained, with the existing lease.^os They also run with the interest of a lessee in favor of or against a sublessee, the lessee being, for this purpose, in the same position as if he were a reversioner in fee simple.^"" Where a lease is granted by one person, and thereafter the reversion is transferred to two or more as tenants in common, either of them may, independently of the other, sue on a cov- enant running with the land.^io Upon the question whether, when undivided shares in the re- version pass to different persons, they have a joint or several right of action upon the covenants running with the land, the cases are by no means clear. It has been decided that the trans- ferees of undivided interests in the reversion may join in suing on the lessee 's covenant to repair,2i 1 and' that they must join in an action on such a covenant, if the demise was originally made jointly by tenants in common.212 Qn the other hand it has been held, in the same jurisdiction, that if the demise is made by one person, persons claiming undivided interests in the reversion by devise from the lessor need not join in an action on a covenant made by the lessee.^''^ (12) Release by transferor. It would seem that, so long as a lessor retains the reversion, he may make a release of covenants 208 Co. Lltt. 21.5 a; Attoe v. Hem- jointly or severally; jointly in re- mings, 2 Bulst. 281; Dowse v. Cole, 2 spect of the joint contract; severally Veut. 126; Burton v. Barclay, 7 Bing. in respect of the interest;" and dis- 745. tinguishing Foley v. Addenbrooke, 209Pyot V. St. John, Cro|. Jac. 4 Q. B. 197, and Thompson v. Hake- 329; Vernon v. Smith, 5 Barn. & will, 19 C. B. (N. S.) 713, where Aid. 1; Porter v. Merrill, 124 Mass. the tenancy in common existed at 534; Patten v. Deshon, 67 Mass. (1 the time of the demise and was not Gray) 325. See ante, note 181. created thereafter by transfer of un- 210 Roberts v. Holland [1893] 1 Q. divided interests in the reversion. B. 665, quoting Piatt, Covenants, 130, The authorities for the statement of to the effect that "where there is Mr. Piatt are to be found in 1 Wms. no express contract with all, and Saund. 154, note (1) to Eccleston their legal interest is several, the v. Clipsham. covenantees must sue separately; 2" Kitchen v. Buckly, 1 Lev. 109. yet, where the contract is entered 212 Thompson v. Hakewill, 19 C. into with the covenantees jointly, B. (N. S.) 713. and the estate taken by them is sev- 213 Roberts v. Holland [1893] 1 Q. era!, they may, at their option, sue B. 665. 904 TRANSFER OP REVERSION. ^ I49 given by the lessee, which will be effective as against a subse- quent transferee of the reversion,^!* though he cannot, it appears, after parting with the reversion, thus affect his transferee's right of action on the covenant.^^^ The question of the effect of a re- lease of a covenant running with the land, as against one to whom the land is thereafter transferred, has arisen almost exclusively in connection with covenants for title accompanying conveyances in fee, but it seems that the same principles would be prop- erly applicable in the case of covenants contained in leases. In one ease a release of a covenant for title has been regarded as a subject for record 21 6 go as, apparently, to be ineffective as against a subsequent transferee if not recorded, but it does not seem that ordinarily the recording laws are broad enough to cover such an instrument. 2'' 214 See Mlddlemore v. Goodale, eflEective as against a transferee if Cro. Car. 503; Martin v. Gordon, 24 made before action begun by the Ga. 535; Clark v. Johnson, 5 Day latter. But in Harper v. Bird, T. (Conn.) 373; Littlefield v. Getchell, Jones 102; s. c, sub. nom., Har- 32 Me. 390 ; Brown v. Staples, 28 Me. per v. Burgh, 2 Lev. 206, a later case, 497, 503, 48 Am. Dec. 504; Cunning- it was held that a release of a cove- ham v. Knight, 1 Barb. (N. Y.) 399, nant to pay rent, made by the lessor 405; Rhines v. Balrd, 41 Pa. 256; after having transferred the rever- Susquehanna & W. V. R. & C. Co. v. sion, was nugatory. In 17 Harv. Quick, 61 Pa. 328. And see Rawle, Law Rev. p. 184, Prof. J. B. Ames Covenants for Title (5th Ed.) § 223; says that the dictum in Middlemore article in 2' Am. Law Reg. (N. S.) v. Goodale, supra, may be disre- p. 265. garded. 21B Brown v. Staples, 28 Me. 497, 2" Susquehanna & W. V. R. & C. 503, 48 Am. Dec. 504; Crooker v. Co. v. Quick, 61 Pa. 339. See Field Jewell, 29 Me. 527; Chase v. Weston, v. Snell, 58 Mass. (4 Cush.) 504. 12 N. H. 413. In Middlemore v. 217 See Brown v. Staples, 28 Me. Goodale, Cro. Car. 503, It is said that 497, 48 Am. Dec. 504; Littlefield v. a release made by the covenantee is Getchell, 32 Me. 390. CHAPTER XV. TRANSFER OP THE LEASEHOLD. 150. Voluntary transfer and transfer by operation of law. 151. Assignment and sublease distinguished. 152. Restrictions on assignment and subletting a. Freedom of alienation in absence of restriction. b. Restrictions strictly construed. c. Restrictions applicable only to transfer of legal title. d. Application of restrictions to alienation of part interest. e. Restrictions not applicable to license or lodging agreement. f. Restrictions not applicable to transfer by operation of law. g. Effect of restriction as against executor or administrator, h. Lessor's consent to alienation. i. Restriction as covenant running with the land, j. Effect of breach of stipulation against alienation. (1) Covenants and conditions. (2) Validity of alienation. (3) Waiver of breach. (4) Damages for breach, k. Injunction against breach. 1. The rule in Dumpor's case. m. Stipulation against parting with possession. n. Statutory restrictions. 153. Assignment presumed from possession. 154. Requisites of assignment and of sublease. 155. Assignment by way of mortgage. 156. Contract to assign. 157. Liabilities of assignor-. a. To landlord. (1) Based on privity of estate. (2) Based on privity of contract. b. To assignee. 158. Liabilities of assignee. a. To landlord. (1) Based on privity of estate. (2) Based on privity of contract. 906 TRANSFER OF LEASEHOLD. 150 §159. 160. 161. 162. 163. 164. (a) At common law and by statute. (b) Stipulations not under seal. (c) Breaches of covenant before assignment. (d) Necessity of legal assignment. (e) Assignee's entry unnecessary. (f) Mortgagee of leasehold. (g) Assignee by operation of law. (h) Executor or administrator as assignee. (i) Heirs and legatees. (j) Trustees in bankruptcy. (k) Assignees for creditors. (1) Receivers as assignees. (m) Partial assignment. (n) Reassignment. (aa) Ordinarily terminates liability. (bb) Covenants assumed by assignee. (cc) Transfer of possession. (dd) Breaches prior to reassignment. b. To assignor. Rights of assignor. Rights of assignee. Liabilities of sublessor. a. To landlord. b. To sublessee. Liabilities of sublessee. Rights of sublessor. Rights of sublessee. ^ 150. Voluntary transfer and transfer by operation of law. The leasehold interest, like that in reversion, may be trans- ferred either by voluntary act or by operation of law. The mode of transfer which we have chiefly to consider is that by voluntary act intpr vivos, that is, by an "assignment" or "sub- lease," the specific nature of which classes of conveyance we will hereafter consider.^ The most ordinary instance of the transfer of the leasehold estate by operation of law, as distin- guished from voluntary act, occurs upon the death of the ten- ant, whether the original lessee or his assignee, whereupon such estate, if of a chattel character, passes, with the rest of the de- cedent's personal property, to his executor or administrator, for the purpose of the payment of debts or other disposition in ac- cordance with his last will or with the laws of the state. The 1 See post, § 151. § 151 ASSIGNMENT AND SUBLEASE DISTINGUISHED. 907 leasehold interest may also pass by operation of law by reason of a sale under execution 2 or foreclosure,'' of the bankruptcy of the tenant,-* of condemnation under eminent domain proceed- ings,5 or in any of the various other ways in which the owner of an interest in land may be divested thereof without his consent.'' § 151. Assignment and sublease distinguished. One holding under a lease may dispose of his interest or of a part of his interest by voluntary conveyance inter vivos in either of two ways: (1) He may make an assignment or (2) he may make a sublease. The distinction between an assignment and sublease is of great importance, but the courts have not always been entirely in unison as regards the line between the two species of transfer. The circumstances may vary as fol- lows; (1) The tenant may transfer to another an estate in the whole premises of a quantum less than his own estate, leaving a reversion in himself, as for instance when, living an estate which has still five years to run, he transfers an estate for four years. (2) He may transfer an estate in the whole premises equal to his own estate, leaving no reversion in himself, as when, hav- ing an estate which has five- years yet to run, he transfers to an- other an estate for five years, or, which is the same thing, under- takes to transfer a greater estate than he has. (3) He may trans- fer an estate less than his own in a part of the premises. (4) He may transfer an estate eqiial to his own in a part of the premises. As regards the first class of transfer by the tenant, that is, 2 See e. g., Willison v. Watkins, see v. Blackmore, 13 Tenn. (5 28 U. S. (3 Pet.) 50, 7 Law. Ed. Yerg.) 113. 599; McLean v. Rockey, 3 McLean, s State v. Martin, 82 Tenn. (14 235, Fed. Cas. No. 8,891; Barr v. Lea) 92, 52 Am. Rep. 167; Wittman Bimford, 6 Blackf. (Ind.) 335, 38 Am. v. Milwaukee, L. S. & W. R. Co., 51 Dec. 146; McNeil v. Ames, 120 Mass. Wis. 89, 8 N. W. 6; Ozark v. Adams, 481; Buhl v. Kenyon, 11 Mich. 249, 73 Ark. 227, 83 S. "W. 920. 83 Am. Dec. 738; Smith v. Brinker, 4 See ante, § 12 g (7). 17 Mo. 148, 57 Am. Dec. 265; North- = See Lewis, Eminent Domain, § em Bank v. Roosa, 13 Ohio, 334, 82 326. Am. Dec. 444; Joslin v. Ervien, 50 6 The various modes of involun- N. J. Law, 39, 12 Atl. 136; Sowers tary transfer are discussed in 2 Tif- V. Vie, 14 Pa. 99; Kile v. Giebner, fany. Real Prop. cc. 21-30. 114 Pa. 381, 7 Atl. 154; Thomas' Les- 908 TRANSFER OF LEASEHOLD. § 151 of an estate in the whole premises less than that which he has- himself, leaving a reversion in him, the courts are in unison in considering it not an assignment but a sublease, making the transferee tenant of the transferor^ The fact that the interest transferred is of a duration but slightly less than the interest of the tenant is immaterial,^ and so the fact that there is a differ- ence of a day or of a fraction of a day is sufficient to constitute the transfer a sublease and not an assignment.^ A transfer of the second class, that is, of the tenant's entire interest in the whole premises, leaving no reversion in him, has almost invariably been regarded, not as a sublease but as an as- signment, substituting the transferee as tenant of the landlord in place of the transferor.!** And the fact that the transfer is in form a sublease, or reserves rights as against the transferee sim- ilar to such as are ordinarily reserved on a lease, has ordinarily 7 Derby v. Taylor, 1 Bast, 502; tenant to another to hold from year Woodhull V. Rosenthal, 61 N. Y. 382; to year (Curtis v. Wheeler, 1 Moody Stewart v. Long Island R. Co., 102 & M. 493; Pike v. Eyre, 9 Barn. & N. Y. 601, 8 N. E. 200, 55 Am. Rep. C. 909). 844; Doty v. Heth, 52 Miss. 530; May- s See Crusoe v. Bugby, 3 Wlls. 234; hew V. Hardesty, 8 Md. 479; St. Van Rensselaer v. Gallup, 5 Denio Joseph & St. L. R. Co. v. St. Louis, (N. Y.) 454; Sexton v. Chicago Stor- I. M. & S. R. Co., 135 Mo. 173, 36 S. age Co., 129 111. 318, 21 N. E. 920, W. 602, 33 L. R. A. 607; Wheeler v. 16 Am. St. Rep. 274. Hill, 16 Me. 329 ; Schenkel v. Lisch- s 2 Preston, Conveyancing, 124 ; insky, 45 Misc. 423, 90 N. Y. Snpp. Davis v. Morris, 36 N. Y. 569. 300. Consequently, if a tenant for That a conveyance of the whole years lets premises to another to residue of the term, excepting one hold at will, the latter is his sub- day thereof, does not take effect by tenant and not his assignee. Aus- way of sublease if the last day Is tin V. Thomas, 45 N. H. 113; Cross not named as the one excepted, see V. Upson, 17 Wis. 618. And so if a 2 Preston, Conveyancing, 125, quoted tenant for a term of a year or more In Jameson v. London & Canadian lets to hold from year to year. Loan & Agency Co., 27 Can. Sup. Ct. Austin V. Thompson, 45 N. H. 113; 435. Pelrse v. Sharr, 2 Man." & R. 418. loHogg v. Reynolds, 61 Neb. 758, And as before stated (see ante, § 14 86 N. W. 479, 87 Am. St. Rep. 522; d, note 525), a tenant from year to Craig v. Summers, 47 Minn. 189, 4it year has a possibility of a term of N. W. 742, 15 L. R. A. 236; Doty v. indefinite duration, and consequently Heth, 52 Miss, 530; Stewart v. Long a lease by him for years is a sub- Island R. Co., 102 N. Y. 601, 8 N. E. lease (Oxley v. James, 13 Mees. & 200, 55 Am. Rep. 844; Forrest v. Dur- W. 209), as is a lease by such a nell, 86 Tex. 647, 26 S. W. 481. § 151 ASSIGNMENT AND SUBLEASE DISTfNGUISHED. 909 been considered immaterial." There are, however, dicta and decisions to the contrary, that though the entire term is trans- ferred, particular provisions in the instrument of lease may have the effect of rendering the transferee a tenant of the trans- feror and not of the head landlord. There are, for instance, occasional dicta^^ and perhaps two decisions,i3 to the effect that the insertion, in the instrument of transfer, of covenants different from those in the original lease, or the reservation therein of a different rent, will render the transfer a sublease and not an assignment. And there are also apparent dicta}* and 11 Palmer v. Edwards, 1 Doug. 187, i3 In Drake v. Lacoe, 157 Pa. 17, note; Langford v. Selmes, 3 Kay & 27 Atl. 538, 25 L. R. A. 349, It is J. 220; Beardman v. Wilson, L. R. said, -without discussion, that an as- 4 C. P. 57; Thorn v. Woollcomhe, 3 slgnment for an increased consideca- Barn. & Adol. 586; Parmenter v. tion with wholly new stipulations, Wehber, 8 Taunt. 593; "Wollaston v. with right of re-entry for conditions Hakewill, 3 Man. & G. 297, 3 Scott broken, with an express assumption N. R. 616; Lewis v. Baker [1905] 1 of continuing liability of the assign- Ch. 46; Selby v. Robinson, 15 N. C. ors to the owners under the original C. P. 370; Mulligan v. Hollingsworth, lease, and a manifest intention to 99 Fed. 216; Liebschutz v. Moore, 70 sublet, not only is not evidence of Ind. 142, 36 Am. Rep. 182; Smiley v. intention to end the privity of estate Van Winkle, 6 Cal. 605; Firth v. between the lessor and lessee, but Rowe, 53 N. J. Eq. 520, 32 Atl. 1064; is a positive reaffirmance of it. Sexton V. Chicago Storage Co., 129 This apparently overrules Lloyd v. 111. 318, 21' N. E. 920, 16 Am. St. Rep. Cozens, 2 Ashm. (Pa.) 131. In Mc- 274; Woodhull v. Rosenthal, 61 N. Claren v. Citizens' Oil & Gas Co., Y. 382; Campbell v. Gates (Tex. Civ. 14 Pa. Super. Ct. 167, the reservation App.) 51 S. W. 268; Craig v. Sum- of a larger rent upon a subsequent mers, 47 Minn. 189, 49 N. W. 742, transfer is regarded as making the 15 L. R. A. 236; Ohio Iron Co. v. Au- transfer a sublease, bum Iron Co., 64 Minn. 404, 67 N. W. 14 Fratcher v. Smith, 104 Mich. 221; St. Joseph & St. L. R. Co. v. St. 537, 62 N. W. 832, 29 L. R. A. 92; Louis, I. M. & S. R. Co., 135 Mo. 173, Collins v. Hasbrouck, 56 N. Y. 157, 36 S. W. 602, 33 L. R. A. 607; Indian- 15 Am. Rep. 407; Ganson v. Tifft, 71 apolis Mfg. & Carpenters Union v. N. Y. 48. In Koppel v. Tilyou, 31 Cleveland, C. C. & I. R. Co., 45 Ind. N. Y. Civ. Proc. R. 185, 70 N. Y. Supp. 281; Field V. Mills, 33 N. J. Law, 254. 910, it was decided, in accordance 12 United States v. Hickey, 84 U. with previous dicta in that state, S. (17 Wall.) 9, 21 Law. Ed. 559; that the transfer constituted a sub- Collamer v. Kelley, 12 Iowa, 319. lease when it contained such a pro- See Weander v. Claussen Brew, viso for re-entry and also a provision Ass'n,- 42 Wash. 226, 84 Pac. 735, for surrender at the end of the term. 114 Am. St. Rep. 110. 910 TRANSFER OF LEASEHOLD. § 151 at least one decision/^ to the effect that this will be the result of the insertion, in such transfer of the leasehold estate, of a pro- viso for re-entry on breach of condition, a view which seems to be based on the erroneous theory that such a right of re-entry r is a reversionary interest,!" and which is opposed by other well considered decisions," as well as by statements in the older books.!* In one state it has been intimated.io and indeed de- 10 Dunlap v. Billiard, 131 Mass. 161, lo That it is not a reversionary which is based, apparently, on the interest, see Litt. § 325; Co. Litt. Idea that when a right of re-entry is 202; Gray, Perpetuities, § 30; Doe d. reserved, the transferee has' a less Freeman v. Bateman, 2 Barn. & estate than the transferor, in other Aid. 168; Sexton v. Chicago Storage words, that a term for (say) twenty Co., 129 III. 318, 21 N. E. 920, IS years subject to a right of re-entry Am. St. Rep. 274, and cases there t(ft breach of condition is a less cited; De Peyster v. Michael, 6 N. estate than one for the same time Y. (2 Seld.) 467, 507, 57 Am. Dec. not subject to such right. This view 470. has no common-law authority to i' Palmer v. Edwards, 1 Doug. 187, support it, but the court cites the de- note; Sexton v. Chicago Storage Co., cisions in that state to the effect 129 111. 318, 21 N. E. 920, 16 Am. that a right of re-entry for breach St. Rep. 274; Craig v. Summers, 47 of a condition is a devisable inter- Minn. 189, 49 N. W. 742, 15 L. R. A. est (Austin v. Cambridgeport Par- 236; Herzig v. Blumenkrohn, 122 ish, 38 Mass. [21 Pick.] 215; Brattle App. Div. 756, 107 N. Y. Supp. 570; Square Church v. Grant, 69 Mass. Lloyd v. Cozens, 2 Ashm. (Pa.) 131; [3 Gray] 142, 63 Am. Dec. 725), a view Weander v. Claussen Brew. Ass'n, 42 entirely at variance with that adopt- Wash. 226, 84 Pac. 735, 114 Am. St. ed in other jurisdictions (see 2 Rep. 110. See 2 Preston, Conveyanc- Washburn, Real Prop. 451, 1 Tiffany, ing, 124. Real Prop. § 75). The view in that is in Co. Litt. 316a, it is said state then seems to be that since that "if lessee for life assigneth over a right of re-entry is devisable, it his estate upon condition, he, having constitutes an estate, and conse- nothing in him but a condition, shall quently the fact that such an estate not attorn, but the assignee may at- is outstanding in another person nee- torn because he is tenant of the cssarily diminishes the interest of the land;" citing 5 Hen. 5, which is pre- owner of the estate which is sub- sumably intended for 8 Hen. 5, fol. ject to it. It may be remarked that 10, pi. 16, where it is said that Goe- the fact that rights of entry are by kaine (a counselor) demanded: "If statute made assignable, as they are I lease land to a man for term of in England, does not make them es- life, who, by deed indented, leases tates. Sexton v. Chicago Storage over his estate to another, reserving Co., 129 111. 318, 21 N. E. 920; 16 to himself a rent and an entry for Am. St. Rep. 274; De Peyster v. default of payment, then I grant the Michael, 6 N. Y. (2 Seld.) 467, 507, reversion, and the first lessee at- 57 Am. Dec. 470. torns; by this attornment the rever- § 151 ASSIGkMENT AND SUBLrBASB DISTmoUISHED. 91] eided by an interniediate court,-" that the insertion of a clause in the transfer, providing for the "surrender" of the premises to the lessor, that is, for the redelivery to him of the possession at the end of the term, has the effect of making it a sublease for all purposes, on the tlieory that "by reason of this covenant to surrender, some fragment of the term remains in the original lessee."'-! ji^^y g^,g]^ ^ covenant, purporting to create an obli- gation ill, pcrsouaiii luevely, can aHeet the operation of what pur- ports to ))e a transfer of the lessee's whole interest, so as to render it inoperati\-e to transfer some fragment of that interest, is not explained. Nor is it clear that such an effect should be given even to a covenant to surrender or relinquish possession "on the last day of the term," as has been done in one state,^'- since if the transfer purports to be for the whole remaining term, a covenant to relinquisli possession before the end of the term, though it may give a right in personam against the transferee for breach of sueli covenant, cannot well divest the property right otherwise vested in him for the whole term. Conceding that such a covenant indicates an intention that possession shall be relinquished before midnight of the last day of the term, it might perhaps be regarded as qualifying the other language in the instrument of transfer, the whole instrument thus show- ing an intention that the transferee's interest shall come to an end before the termination of the interest of the transferor. The difficulty would seem to be, however, that a covenant to relinquish the possession on the last day requires a relinquish- sion passes," to which Hull, J., re- Rep. 844. The last word of this quo- plied: "No; for when he leased tation, as reported, is "lessor." This over his estate no reversion was re- must be a misprint for "lessee." served to him, but only an entry for 22 It is so decided in Piggot v. the condition, and his lessee was Mason, 1 Paige fN. Y.) 412; Post tenant to him in reversion." v. Kearney, 2 N. Y. (2 Comst.) 394, isGanson v. Tifft, 71 N. Y. 48; 51 Am. Dec. 303. See Stewart v. Martin v. O'Conner, 43 Barb. (N. Y.) Long Island R. Co., 102 N. Y. 601, 8 514; Koppel v. Tilyou, 31 N. Y. Civ. N. E. 200, 55 Am. Rep. 844. But Proc. R. 185. 70 N. Y. Supp. 910, there is an assignment and not a ante note 14. sublease, it has been decided. If 20 Shuimer v. Hurwitz, 49 Misc. there is a covenant to surrender, not 121, 96 N. Y. Supp. 1026. to the sublessor, but to the original 21 Stewart v. Long Island R. Co.. lessor. Herzlg v. Blumenkrohn, 122 102 N. Y." 601, 8 N. E. 200, 55 Am. App. Div. 756, 107 N. Y. Supp. 570. 912 TRANSFER OF LEASEHOLD, J J.5I nient only at the last instant of that day, and that is the time at which the transferor 's interest comes to an end. It has been said in one case,^-* that although, as regards the landlord, a transfer of the whole term constitutes an assignment, yet, "as between the original lessee and his lessee or transferee, even though the original lessee demises his whole term, if the parties intend a lease, the relation of landlord and tenant, as to all but strict reversionary rights, will arise between them." But, as has been in effect judicially remarked,^* so far as the decisions go, any rights arising as between the parties, other than "strict reversionary rights," even though rights of a char- acter which ordinarily exist in connection with the relation of tenancy, are merely the result of contract, and the fact that such rights have been created by contract at the time of making a transfer does not show such transfer to be a lease, even as between the parties thereto. The question may be raised, how- ever, whether "strict reversionary rig-hts" may not exist on the theory of estoppel, even though there is a transfer of the les- see's whole interest. This question is hereafter discussed.^s There are several English cases which tend, by the language of tlje opinions, to support the view that, apart from any theory of estoppel, a transfer of the whole term will take effect as a sublease, if an intention to that effect appears. The decisions actually rendered in most of these cases may, however, be sup- ported independently of such a doctrine. In some of these cases it was decided or asserted that sums reserved as rent upon a transfer of the whole term could be recovered by a subsequent transferee of the right to such sums, by a.n action in his own name against a STibsequPut transferee of the term,-'' which could 23Stg3s[art_v. Long Island R. Co., 67 Mass. (1 Gray) 325, it -was de- 102 N. Y. 601, 8 N. E. 200, 55 Am. cided that when a lessee "let" to an- Rep. 844. other for the whole of his term, and 2* Sexton v. Chicago Storage Co., subsequently assigned all his rights 129 111. 318, 21 N. E. 920, 16 Am. in the original "lease" to him, his St. Rep. 274; Craig v. Summers, 47 assignee could recover the rent re- Minn. 189, 49 N. W. 742, 15 L. R. A. served in the "lease" made hy him. 236. The opinion speaks of the transfer 25 See post, at notes 40-46. for the whole term as a sublease, 2S Clarke v. Coughlan, 3 Ir. Law but the decision is, it seems, merely R. 427; WJiUams- JK... Hay-wa£d, 1 El. that the rent reserved thereon may & El. 1040'. In Patten v. Deshon, be assigned. The opinion, althOBgii I 151 ASSIGNMENT AND SUBLEASE DISTINGUISHED. 913 not have been done had the right to such sums been, not rent, but a mere chose in action, and the right to recover such stipu- lated sums in an action of debt for rent has invaribly been rec- ognized.^'f It has, moreover, been stated that the defense of eviction would be allowed in such case as in other cases of rent reserved.^® The recognition, however, of sums so reserved as properly constituting rent, does not necessarily. involve the view that a relation of tenancy is created between the parties, it being possible to reserve rent upon the transfer of a term leav- ing no reversion, as it is upon the transfer of an estate in fe« simple leaving no reversion.29 In others of these cases it was decided that an oral transfer of the balance of the term, which was in terms a lease, would be supported as such, under the exception in the second section of the English statute of frauds,^* though it would not, under that statute, be valid as an assign- ment. This view has been eriticized,^! but these decisions ap- pear to be in conformity to principle, in so far as they can be regarded as deciding merely that one taking possession under an invalid assignment is a tenant of the assignor, so that the attempted assignment operates as a lease. '^ written by Shaw, C. J., is singularly and recoverable by the name of a obscure. rent upon the contract." 27 Com. Dig., Dett (C) ; tJew c onib aopoultney v. Holmes, 1 Strange, v ^ Harvev . Garth. 161; Williams,^. 405; Pollock v. Stacy, 9 Q. B. 1033. Hayward, IJEh & El. 1040; Patten v. In Palmer v. Edwards, 1 Doug. 187, Deshon, 67 Mass. (1 Gray) 325; note, Buller, J., says that Poultney Adams v. Beach, 1 Phila. (Pa.) 99, v. Holmes, supra, "only determined 7 Leg. Int. 178. that what cannot be supported as an 28 Baker v. Gostling, 1 Bing. N. C. assignment shall be good as an un- 19_ derlease against the party granting 29 In Newcomb v._Harvey, Garth, it." 161, which was^n"action of debt for 31 Barrett v. Rolph, 14 Mees. & rent reserved on an assignment of w. 348, per Parke, B. the whole term, it was contended 33 g^^ j^ preece v. Corrie, 5 Bing. that the action should not be debt ^^^ j^. ^^^ ^^^^ ^J^g^^ ^j^jjg ^^^ ^^^j for rent, but for a sum in gross upon ^j.3^jjgjgj. ^j ^-^^ .^^ole term, under the contract, and it was resolved by ^^^ circumstances, constituted a the court that "this is a rent, though ^^^^^ ^^^ ^^^ consequently valid, the plaintiff had -<^^^2Z'teZ ^ere was no right to distrain. It if a rent is reserved upon a reou- >• ^ ., ^r. ^ j.,. Lit in fee. there is no reversion in might bo suggested tha there was the feoffor, but yet this is a rent, a mere tenancy at will, and that li. ana Ten. 58. 914 TRANSFER OF LEASEHOLD. | 151 The view that the relation of landlord and tenant does not exist as between the parties to what purports to be a sublease for the whole term has been clearly asserted in decisions that one who has transferred the entire term, reserving a rent, is not entitled to distrain for such rent, it being said that a rever- siodi is necessary to support a distress,^^ and likewise in deci-. sions that such transferor is not entitled, even though a right of distress be expressly given, to the benefit of a statute author- izing the making of a general avowry upon a distress for rent,^^ and that he has no right of action against the transferee as for waste.^B The view that the transferor has no reversion which will support a distress has, on the other hand, been questioned by a learned student of the common law,-*** who says that "as the statute of Quia Emptores does not affect chattel interests, it ■seems to be not imreasonable to contend that a termor may cre- ate a subtenancy equal, in duration, to his own term, and that, as in the case of a subtenure in fee, the sublessor has such a re- version as will enable him to distrain for the rent or other services reserved upon the creation of the subtenure. ' ' The case of a subtenure so attempted to be created may, however, it seems, be distinguished from a subtenure created before the statute of Quia Emptores upon a conveyance in fee simple, since, in the latter case, the grantor had rights of fealty and escheat, the latter of which rights is, in its operation, not dissimilar to a right to have the land return to one upon the expiration of a lesser estate, and was at the time of the statute referred to not consequently there was a right to exchequer chamber by a majority of distrain. six judges to four. See post, note 45. 33 Langford v. Selmes, 3 Kay & J. 35 Hicks v. Downing, 1 Ld. Raym. 220; Parmenter v. Webber,, 8 Taunt. 99, 1 Salic. 13; Wheeler v. Baker, 3 593; Preece v. Corrie, 5 Bing. 24; Salk. 10; McLaughlin v. Long, 5 Har. Pollock V. Stacy, 9 Q. B. 1033; Lewis & J. (Md.) 113. V. Baker [1905J 1 Ch. 46; Prescott 36 Sergeant Manning, in a note V. DeForest, 16 Johns. (N. Y.) 159; to King v. Wilson, 5 Man. & R. l.")?, Ragsdale v. Estis, 8 Rich. Law ( S. where he traces back the modern ile- C-) 429. cisions, adverse to the right of ilis- 34 Pluck V. Digges, 5 Bligh (N. S.) tress in such case, to a misstatement 31, decided in the house of lords by by Brooke (Bro. Abr. Dette, pi. 39) Lord Tenterden and Lord Wynford, of- a dictum, or rather a quaere, of and reversing 2 Huds. & B. 1, where Finchden, C. J., in Y. B. 45 Edw. 3, the contrary was decided in the Irish 8 pi. 10. § 151 ASSIGNMENT AND SUBLEASE DISTINGUISHED. 915 infrequently, it appears, assimilated thereto,^'^ while in the case of a transfer, by one having an estate for life or years, of his entire interest, no interest remains in him which bears the slight- est resemblance to a reversionary right, he having at most, by express provision, a right to re-enter for breach of condition.^^ There seems some ground, on principle, for the view, asserted in a dichtm previously quoted,^^ that while a transfer of the lessee's whole interest, though purporting to be a sublease, is necessarily an assignment as regards third persons, it may be regarded as a sublease between the parties themselves. The doctrine of "estoppel by deed"*" might, it appears, be applied as against the transferor, so as to preclude him from asserting, as against the transferee, that the transfer^ though so phrased as to show an intention that it should operate as a lease and not as an assignment, cannot, owing to the limited quantum of his estate, take effect as intended. The transferor may, by the form of the instrument of transfer, in effect affirm that he has an estate sufficient to support the transfer as a lease, and he should not, it seems, be permitted thereafter to assert the con- trary.41 Such a theory would, however, in many jurisdictions, be inapplicable unless the instrument were under seal,*^ nor could it be applied when the quantum of the lessee's estate ap- pears on the face of the transfer, the rule being that there is no estoppel by deed when the truth appears.*^ Cases in which the transferor would seek to assert that an instrument thus in form a lease is legally an assignment can but seldom occur, and 37 2 Pollock & Maltland, Hist. Eng. where one having a lease for three Law, 22. years assigned over for three years 38 See note to Fawcett v. Hall, Ale. by parol, and, the house having been & N. 259, containing a learned dis- burnt, brought an action for dam- cussion of the subject by Mr. Justice ages against the lessee, It was de- Burton, who cites Jenison v. Lex- cided that he could not maintain the ington, 1 P. Wms. 555, to the effect action, having no reversion, but It that if a tenant for three lives con- was said that "It had been other- veys for these three lives, reserving wise if the lease had been by in- arent, he has no reversion, and the denture or estoppel." And see the rent is not a rent service. remarks of Lord Chelmsford in Jolly 39 Sea ante,, at note 23. v. Arbuthnot, 4 De Gex & J. 240. Field v. Mills, 33 N. J. Law, 254 ; to Greenaway v. Adams, 12 Ves. Lynde v. Hough, 27 Barb. (N. Y.) Jr. 395. 415; In re Doyle [1899] 1 Ir. 113. 7i Roe d. Gregson v. Harrison, 2 See, also, 7 Am. Law Rev. 248. It Term R. 425. is clear, as stated by these various 72 Doe d. Holland v. Worsley, 1 authorities, that a landlord may Camp. 20. wish to restrain underletting with § 152 RESTRICTIONS ON RIGHT?. 923 An oral letting by the year has been regarded as constituting a breach of a covenant against subletting/^ most properly so, it would seem. There is a dictum by a distinguished judge that the lessee may, without breach of a covenant against subletting, put another into possession of the premises.'^* But a person put into pos- session by the lessee for a period less than the term of the les- see's estate, must, it seems, be a tenant under a sublease since he is not in by assignment, and the statement would seem to be properly applicable only to one who is given a mere license to enter and who has not, technically speaking, possession of the premises.'^" A late English decision's likewise, that the act of the lessee in putting into possession one to whom he has sold the leasehold is not a breach of a covenant against subletting, is somewhat difficult to harmonize with the view adopted in England that a purchaser so going into possession becomes the tenant of the vendor. '^'^ There is one decision,''* and there are occasional dictaP to the effect that a transfer of the leasehold by a bequest thereof is not within a condition or covenant against assignment, and this accords with the general rule that such restrictions upon aliena- tion should be strictly construed. A different view is, how- ever, expressed in some early cases.*" c. Restrictions applicable only to transfer of legal title. In 73Timms v. Baker, 49 Law T. (N. of their own will, turn the vendee S.) 106. out." 74 Lord Eldon in Church v. Brown, ^^ See ante, § 43 a, notes 5, 6. 15 Ves. Jr. 256. "s Squire v. Learned, 196 Mass. 134, 75 See ante, § 7. 81 N. E. 880, 124 Am. St. Rep. 525. '8 Horsey Estate v. Steiger [1899] 79 Fox v. Swann, Style, 482; Doe d. 2 Q. B. • 79. Here the court says Goodbehere v. Bevan, 3 Maule & S, that the vendee "pays no rent and 353, 361; Crusoe v. Bugby, 3 Wils. has undertaken no obligation such as 234. those of tenancy," and goes on: s" See Berry v. Haunton, Cro. Eliz. "But it is said the proper impli- 331; s. c. sub. nom., Taunton v. cation from these facts is that a Barrey, Poph. 106; Knight v. Mory, tenancy at will has been created. Cro. Eliz. 60; Parry v. Harbert, 1 Whether this may be technically so Dyer, 45b; Windsor v. Burry, 1 or not, the practical answer to this Dyer, 45b, note; Horton v. Horton, contention seems to be that the de- Cro. Jac. 74. fendants could not, by the exercise 924 TRANSFER OF LEASEHOLD. § 152 order that there be a breach of a covenant or condition against an assignment, there must be, it has occasionally been decided, a transfer of the legal title, and, accordingly, a contract for the sale of the leasehold, though this vests an equitable interest in the vendee, was regarded as not within the prohibition,^! and a covenant by the lessee to stand possessed of the premises for another person, who enters into possession, has been regarded in the same way.®^ It has been said, on the other hand, that the transaction is within the stipulation, when it appears that the legal title is withheld merely to avoid the effect of the prohibition.ss or even, it seems, without any showing to that effect, when there is a transfer of rights of enjoyment merely, this being regarded as in effect an assignment.** But the mere In Windsor v. Burry, as stated in assignment of the future gross earn- 1 Dyer, 45 b, note, it was decided that ings of the road with a contract by if the bequest is to the executor, the such company to use and operate it condition against assignment is not under the directions of the assignee, broken. But the reference to what Boston, C. & M. R. Co. v. Boston & is apparently the same case, sub. L. R. Co., 65 N. H. 393, 23 Atl. 529. nom.. Boroughs v. Windsor, in Moore, And where the owner of a factory 351, is to the effect that even in such was lessee of ground adjoining, case, if the legatee enters generally, which he used as a lumber yard, that is, without stating that he does and "sold out" his business to one so as executor, he will be regarded whom he put in possession of the as entering as "devisee," and a ground as well as of the factory, breach will occur. The distinction agreeing that the vendee might use based on the fact that the bequest the ground so long as he, the vendor, is to the executor appears to be un- could have used it, it was decided sound, for the reason stated in 21 that there was a substantial breach Harv. Law Rev., at p. 60, that "the of a covenant against assignment, executor as devisee (legatee) is as Indianapolis Mfg. & Carpenters' distinct as any stranger from the Union v. Cleveland, C, C. & I. R. executor as such." Co., 45 Ind. 281. 81 West V. Dobb, L. R. 5 Q. B. 460; In Munkwitz v. Uhllg, 64 Wis. 380, Horsey Estate v. Steiger [1899] 2 Q. 25 N. W. 424, it was held that a B. 79; Livingston v. Stickles, 7 Hill covenant not to assign or underlet (N. Y.) 253. was not broken because the lessee's 82 Gentle v. Faulkner [1900] 2 Q. business passed into the control of B. 267. others who had purchased his stock, 83 See Livingston v. Stickles, 7 he carrying on the business on the Hill (N. Y.) 253. premises for such purchasers, since 8* So it was held that a covenant he still held the lease "unasslgned by a railroad company not to assign and unimpaired." a roaji leased to it was broken by an 5 152 RE3STRICTI0NS ON RIGHT. 925 making of an instrument of assignment, without delivery, is not a breach.ss In one case it was decided that an assignment, which was invalid as being in violation of the bankrupt act, was not within the covenant.*" A mortgage is regarded as within a prohibition of an assign- ment, in jurisdictions in which the legal title is vested in the mortgagee,*'^ but not when a mortgage creates merely a lien,** as it does in a large number of the states. Even in the former class of states an "equitable mortgage" which does not transfer the legal title, is not within the prohibition.*^ d. Application of restrictions to alienation of part interest. Upon the question whether a stipulation against an assignment or sublease of the premises precludes an assignment or sublease of part of the premises, or an assignment of an undivided in- terest therein, the cases, though few in number, are not in har- mony. That such a partial transfer is within the stipulation is apparently assumed in an English case, where, two partners be- ing joint lessees, an assignment by one to the other of all his interest, upon a dissolution of the partnership, was held to be within a covenant against assignment,®" a. decision clearly dis- tinguishable from another in the same jurisdiction to the effect that the act of one partner in giving up possession to the other, in pursuance of a written agreement, but without any actual as- signment, was not a breach of an agreement not to assign or "part with the possession of the premises to another person or persons."®^ To the same effect, that such a prohibition applies to the transfer of a part of the premises, are English decisions that a contract for lodging is a breach of a covenant against sub- 85Farnum v. Hefner, 92 Cal. 542, ssRiggg v. Pursell, 66 N. Y. 193; 28 Pac. 602, where the lessee gave Grouse v. Michell, 130 Mich. 347, 90 the Instrument to the lessor in order N. W. 32; West Shore R. Co. v. Wen- that the latter might indorse on It ner, 70 N. J. Law, 233, 57 Atl. 408; his assent to the assignment and he Id., 71 N. J. Law, 682, 60 Atl. 1134. refused his assent. «» Doe d. Pitt v. Hogg, 4 Dowl. & seD-oe d. Lloyd v. Powell, 5 Barn. R. 226. .& C. 308. "oVarley v. Coppard, L. R. 7 C. ^7 Becker v. Werner, 98 Pa. 555. P. 505, followed in Langton v. Hen- Ses Foa, Landl. & Ten. (2d Ed.) son, 92 Law T. (N. S.) 805. 209; Davidson, Prec. Conv. (4th t" Bristol Corp. v. Westcott, 12 Ed.) Tol. 2, pt. 2, p. 436. Ch. Div. 461. 926 TRANSFER OP LEASEHOLD. 152 letting when the exclusive possession and control are given.*- In one state in this country a like view, that such a partial trans- fer of the rights in the leasehold is within the stipulation is clearly taken.^^ In other states, however, a different view seems to have been adopted, to the effect that a stipulation against an assignment or sublease of the premises does not prevent the as- signment of a part of the premises,^"* or of an undivided interest therein,95 or the sublease of a part.''^ 92 Greenslade v. Tapscott, 1 Cromp. new partnership their interest in M. & R. 55; Roe d. Dingley v. Sales, the lease, the transaction would 1 Maule & S. 297. have been an assignment of 'the 83 In New Hampshire, where there lease,' or an 'interest therein' (cit- are the following statements in this ing Varley v. Coppard, L. R. 7 C, regard: "A lessee of one hundred P. 505, supra). The retention by acres, on condition that he shall not the plaintiffs of a nominal interest assign, can no more convey one acre in the firm would not enable them without breaking the condition than to violate the contract with impu- he can ninety-nine or one hundred nity, or to deprive the defendants of acres. His grant of ninety-nine and their right to enforce it." The ninety-nine one hundreth acres is opinion questions Roosevelt v. Hop- no more a breach than his grant of kins, 33 N. Y. SI, infra, note 94. one hundredth of an acre." Boston, ''^ Roosevelt v. Hopkins, 33 N. Y. C. & M. R. Co. V. Boston & L. R. Co., 81. In Spencer v. Commercial Co., 65 N. H. 452, 23 Atl. 529. "If the 30 Wash. 520, 71 Pac. 53, it was held plaintiffs could assign a hundredtU that a covenant by the lessee "not to part of their interest as lessees, they sublet the whole ' of said premises could assign ninety-nine one hun- nor to assign this lease without (the dreth of it. It is one of those cases lessor's) written consent" did not in which no line can be drawn be- preclude a sublease of part, it ap- tween a great and a small violation pearing that at the time of the of the contract." Emery v. Hill, 67 lease the lessee was in possession of N. H. 330, 39 Atl. 266. the premises and "was then sub- The latter case involved the ques- letting parts thereof," tion whether a condition, in a lease as In Hargrave v. King, 40 N. C. to a firm, against leasing or under- (5 Ired. Eq.) 430, it is said that the letting the premises or any portion lessee may, without breach of the thereof, or assigning "the lease," condition, associate others with him- was violated by the formation of a self by transferring part interests to corporation and the transfer of the them. But there the lease was in premises to it, and It was held that terms to him and those whom he it was violated. And the court might associate with him, and so says: "If, instead of adopting a the condition was evidently directed corporate form of doing business, merely at a total alienation by him. they had admitted new members in- In Randol v. Scott, 110 Cal. 590, 42 to the firm and transferred to the Pac. 976, it was decided that a cot- § 152 RESTRICTIONS ON RIGHT. 927 e. Restrictions not applicable to license or lodging agreement. The mere grant of a license to enter on or use the premises for a particular purpose is not within the prohibition of an assignment or sublease,^'' this not transferring any exclusive rights.^^ So a servant or caretaker placed in charge of the premises is not a tenant, and occupancy by him involves no violation of a provi- enant not to assign "the lease" was not broken by an assignment of his undivided interest by one of two joint lessees. Roosevelt v. Hopkins, 33 N. Y. 81, seems to intimate thaf an assignment of a part interest by a change in the lessee firm is not a breach of a covenant against as- signment. 80 Roosevelt v. Hopkins, 33 N. Y. 81. In Leduke v. Barnett, 47 Mich. 158, 10 N. W. 182, it is held, with- out discussion, that the letting by the lessee of a single room in the building leased to him is not a breach of a condition not to assign or sublet. In Boyd v. Fraternity Hall Ass'n, 16 111. App. (16 Bradw.) 574, it is held that the fact that the tenant takes another into part- nership and lets him into joint pos- session does not involve a breach of a contract against subletting. This case also decides that a covenant against subletting the whole or a part of the premises is not broken by an arrangement by which each of two joint lessees occupies a sepa- rate portion of the premises. 07 Lowell V. Strahan, 145 Mass. 1, 12 N. B. 401, 1 Am. St. Rep. 422 (license to place sign on wall of premises); Daly v. Bdwardes, 83 Law T. (N. S.) 548, and Edwardes v. Bar- rington, 85 Law T. (N. S.) 650 (license to use part of the premises, a theatre, for supplying refresh- ments) ; Pence v. St. Paul, M. & M. R. Co., 28 Minn. 488, 11 N. W. 80 (license to railway company to lay tracks) ; Sommers v. Reynolds, IDS Mich. 307, 61 N. W. 501 (holding of dance by members of lessee bene- ficial society). To the same effect, see Leduke v. Barnett, 47 Mich. 158, 10 N. W. 182. But in Aveline v. Ridenbaugh, 2 Idaho, 154, 9 Pac. 601, it was de- cided that there was a breach of a condition against subletting If the lessee, on selling wood which had been stored on the premises by the owner's permission before he made the lease, agreed that the pur- chaser should have till the end of the term of the lease for removing the wood. This seems to have been a license rather than a sublease, since right to leave the wood on the premises does not necessarily in- volve a right of possession. In O. J. Gude Co. V. Farley, 28 Misc. 184, 58 N. Y. Supp. 1036, it was decided that a lessee of a building, who was by his lease restricted to subletting the two upper floors only, had no right to sublet the roof. Presumably it is on the ground that there was a license only that Sanders v. Bryer, 152 Mass. 141, 25 N. E. 86, 9 L. R. A. 255, is to be explained. There the court, without any discussion, decided that the fact that the lessee allowed the family with whom he lived to occupy the premises rent free was not a breach of a covenant not to underlet. 38 See ante, § 7. 928 TRANSFER OF LEASEHOLD. § 152 sion against subletting.^^ And there is no breach of a covenant against assignment because the lessee sells the leasehold and the business conducted thereon to a corporation, and permits the corporation to use the premises, no legal assignment being made, and he retaining possession of the premises.^"" Likewise, it has been held that a grant, by the lessee of a theatre, to * firm of contractors, of the exclusive license and right to use all the refreshment rooms and bars in the theatre for a term of years, did not involve a breach of a covenant not "to assign, demise, or otherwise part with this indenture, or any estate or interest therein. "^''^ A stipulation against subletting obviously does not prevent a purchaser of the crop from entering to re- move it.i"!* As before explained, a mere "letting of lodgings," the con- trol of the rooms being retained by the owner, does not create the relation of landlord and tenant, nor is such a letting, tech- nically speaking, a lease.^**- Consequently, such a letting by a lessee does not involve the breach of a provision against sub- letting.^ "^ If, however, the exclusive possession and control of an apartment is given, the rule is different,'"* except in jurisdic- tions where the view is adopted that a subletting of part is not a breach of a stipulation against subletting.ios In one ease it was held that a covenant against underletting without the o!> Vincent v. Crane, 134 Mich. 700, consideration of his sharing com- 97 N. W. 34; Presby v. Benjamin, missions. 169 N. Y. 377, 62 N. E. 430, 57 L. ^"^ Edwardes v. Barrington, 85 Law jj ^ 3-^Y • T. (N. S.) 650, afg. Daly V. Edwardes, 100 Peebles v. Crosthwaite. 13 ^3 Law T. (N. S.) 548. Times Law R. 37, 198. ..T^.^J^^'^^l"'''^ ^^ '"'""'' ^''''■' 116 N. W. 779. But in Levey v. Hockwald, 6 Cal. ,^, g^^ ^^^^_ ^ ^ App. 417, 92 Pac. 872, a covenant „3 g^g g^.^j^ ^ g^ p^jj.p,, against subletting was held to be church, 107 N. Y. 610, 14 N. E. 825; violated by the action of the lessee, Leduke v. Barnett, 47 Mich. 158, 10 a corporation, in allowing one of n. W. 182; Sanders v. Bryer, 152 Its officers to transact his private Mass. 141, 25 N. E. 86, 9 L. R. A. 255; business on the premises in consid- Peaks v. Cobb, 197 Mass. 554, 83 N. eration of his payment of part of E. 1106. the expenses for janitor service, gas lo* Greenslade v. Tapscott. 1 and telephone, and also by allowing Cromp. M. & R. 55; Roe d. Dingley another person to sell steamship v. Sales, 1 Maule & S. 297. tickets on part of the premises in i"-, gee ante, notes 90-96. § 152 RESTRICTIONS ON RIGHT. \ti\) special license of the lessor was not broken by tlie fact that a lodger was given exclusive possession of a room on the prem- ises, it being said that "the covenant can only extend to such underletting as a license might be expected to be applied for ; and whoever heard of a license from a landlord to take in a lodger. "106 This seems to be equivalent to saying that a license was not required by the covenant, because covenants were not usually inserted imposing such a requirement, and the decision is, it is submitted, erroneous, if the lodger was given exclusive possession as distinguished from the mere right to use the room for lodging purposes. Keceiving a boarder in the family has been held not to in- volve the violation of an agreement not to permit any other per- ^5on to occupy the premises or a part thereof.^"'' f. Restrictions not applicable to transfer by operation of law. A transfer by operation of law is not, in the absence' of an ex- press stipulation in that regard, within a provision against assignment, unless it is procured by the tenant merely for the purpose of avoiding the restriction. 1"^ Accordingly, there is no breach of the covenant or condition in the case of a sale under execution.i^^ And it has been decided that a sale imder execution is not a breach thereof, even though the execu- tion was issued on a judgment confessed by the lessee, unless the confession was for the purpose of effecting an assign- ment."o V6Doe d. Pitt V. Laming, 4 Camp. Johns. (N. Y.) 531; Smith v. Put- 73. nam, 20 Mass. (3 Pick.) 221; Charles lOT Stanton v. Allen, 32 S. C. 587, v. Byrd, 29 S. C. 544, 8 S. B, 1, 2 10 S. E. 878; Peaks v. Cobb, 197 L. R. A. 212. Mass. 554, 83 N. E. 1106. In the loo Doe d. Mitehinson v. Carter, latter case it is said that these 8 Term R. 57, 300; Farnum v. Hef- words, used in connection with a ner, 79 Cal. 575, 21 Pac. 955, 12 Am. covenant not to sublet, are Intended St. Rep. 174; Jackson v. Silvernail, to prevent the tenant from suffer- 15 Johns. (N. Y.) 278. ing or permitting a tenancy, as well "» Doe d. Mitehinson v. Carter, as from actively creating it. What 8 Term R. 57, 300; Jackson v. Cor- this means is not clear. liss, 7 Johns. (N. Y.) 531. So in 103 See Doe d. Mitehinson v. Car- Croft v. Lumley, 6 H. L. Cas. 672, ter, 8 Term R. 300; Farnum v. Hef- it was decided that a condition not ner, 79 Cal. 575, 21 Pac. 955, 12 Am. to charge or incumber the leasehold St. Rep. 174; Croft v. Lumley, 6 H. was not broken by the act of the I/. Cas. 672; Jackson v. Corliss, 7 lessee in giving warrants of attorney L. and Ten. 59. 930 TRANSFER OP LEASEHOLD.- § 152 Likewise, there is no assignment within the prohibition, when the leasehold passes, with the lessee's other assets, to his assignee or trustee in bankruptcy or insolvency,!" even though the pro- ceedings were begun on the lessee's own petition.112 That the trustee or assignee, after having thus acquired the leasehold, may sell and assign it to another, without any breach of the covenant or condition against assignment, has been occasionally de- eided,ii3 and is assumed without discussion in one case.ii*- ^'^'^ It has in one state been decided that a transfer of the lease- hold by the lessee's receiver is not within the prohibition," ^ and this accords with the decisions, above referred to, with reference to a transfer by the trustee or assignee in bankruptcy. A deci- sion to the contrary, however, has also been rendered.^i'^ Although the mere making of a mortgage, which does not vest the legal title in the mortgagee, does not constitute an assign- ment within such a provisio.n,"^ \i jj^s been decided that, if the mortgagor's legal title is divested by foreclosure, this is to be regarded as the voUintary act of the lessee and so within such a provision."^ to confess judgment for debts in- us Gazlay v. Williams, 210 U. S. 41, curred and to be incurred, though 52 Law Ed. 950; afg. Id. 77 C. C. A judgment was afterwards entered 662, 147 Fed. 678, 7 L. R. A. (N. S.) so as to be a charge on the leasehold, 471; Doe d. Goodbehere v. Bevan, 3 the warrants not being given with Maule & S. 353; Ex parte Sherman, any intention of producing this re- 1 Buck, 462. See Doe d. Cheere v. suit. Smith, 5 Taunt. 795; Winter v. Dum- 111 Crusoe v. Bugby, 3 Wils. 234; ergue, 14 Wkly. Rep. 281, 699. Doe d. Goodbehere v. Bevan, 13 11+. "s Bemis v. Wilder, 100 Mass. Maule & S. 353; Weatherall v. Geer- 446. ing, 12 Ves. Jr. 504; Doe d. Cheere no Fleming v. Fleming Hotel Co., V. Smith, 5 Taunt. 795; Allen v. 69 N. J. Eq. 715, 61 Atl. 157. Bennett, 6 Am. Law Rev. 755, 1 'i'' Spencer v. Darlington, 74 Pa. Fed. Cas. No. 214; Bemis v. Wilder, 286. 100 Mass. 446; Gazlay v. Williams, ns See ante, at note 88. 77 C. C. A. 662, 147 Fed. 678, 7 L. "sWest Shore R. Co. v. Wenner, R. A. (N. S.) 471; In re Bush, 126 70 N. J. Law, 233, 57 Atl. 408; Id., Fed. 878; In re Gose, 3 Nat. Bankr. 71 N. J. Law, 682, 60 Atl. 1134, dis- News & Rep. 840. Contra, In re approving a contrary dictum iv Breck, 8 Ben. 93, Fed. Gas. No. 1,822 Riggs v. Pursell, 66 N. Y. 193. In (dictum). the New York case the breach was 112 In re Riggs [1901] 2 K. B. 16; asserted by the purchasers in an Bemis v. Wilder, 100 Mass. 446. attempt to be relieved of their pur- § 152 ■ RESTRICTIONS ON RIGHT. 931 An assignment for the benefit of creditors is not a transfer by operation of law and is within a stipulation against assign- ment.i"" But it is otherwise if the assignment is adjudged in- valid under the bankrupt \arw}^^ The taking of a leasehold, together with the reversionary in- terest, in the exercise of the right of eminent domain, necessarily involves a transfer by operation oE law and is not within the re- striction.122 Though an assignment by operation of law is not otherwise within a restriction upon alienation, it may be so by express pro- vision, as when the term is to be forfeited on the bankruptcy of the lessee or upon its sale under execution.i^s But a pro- vision that the leasehold shall remain in the lessee, without be- ing subject to sale on execution or otherwise for the payment of his debts, is apparently merely invalid.i^* It has been decided that a provision against a sale imder exe- cution or other legal process does not apply to a sale by a trus- tee in bankruptcy.! 25 g. Effect of restriction as against executor or administrator. While the passing of the leasehold to the executor or adminis- trator of the lessee is conceded to be by operation of law, and so not within the ordinary condition or covenant against assign- ment,*26 tjjg question whether the executor or administrator is himself bound by such a provision is not clearly settled. That chase, the lessor himself having ap- 123 Roe d. Hunter v. Galliers, 2 parently waived any rights in this Term R. 133; Doe d. Gatehouse v. regard. This case is, in Dunlop v. Rees, 4 Bing. N. C. 384; Dyke v. Tay- Mulry, 85 App. Div. 498, 83 N. Y. lor, 3 De Gex, F. & J. 467; Rex v. Supp. 477, 1104, regarded as estab- Topping, McClel. & Y. 544; Piatt v. llshlng the rule that there is no Johnson, 168 Pa. 47, 31 Atl. 935, 47 breach of the covenant even though Am. St. Rep. 877. the mortgage 15 foreclosed by sale. isii Gray, Restraint on Alienation 120 Holland v. Cole, 1 Hurl. & C. of Prop. § 278; Hobhs v. Smith, 15 67; Magee v. Rankin, 29 V. C. Q. Ohio St. 419. B. 257; Medlnah Temple Co. v. Cur- 125 Gazlay v. Williams, 210 U. S. rey, 162 111. 441, 44 N. E. 839, 53 41, 52 Law. Ed. 950. Am. St. Rep. 320. laii Parry v. Harbert, 1 Dyer, 45 b; 121 Doe d. Lloyd v. Powell, 5 Barn. Crusoe v. Bugby, 3 Wils. 234, 237; & C. 308; In re Bush, 126 Fed. 878. Charles v. Byrd, 29 S. C. 544, 8 S. 122 Slipper V. Tottenham & 11. J. E. 1, 2 L. R. A. 212; 2 Piatt, Leases, R. Co., L. R. 4 Eq. 112; Baily v, De 251; 1 Williams, Executors (9th Crespigmy, L. R. Q. B. 180. Ed.) 809. 932 TRANSFER OP LEASEHOLD. § 152 he is so bound appears to be recognized in one state.^^r Jq gny. land, while the executors or administrators, if named in the cov- enant or condition, are no doubt bound thereby,i2s it has been held that if not expressly named they may assign,i29 though there is a later dictum to the effect that the words "lessee" and "lessees," in this connection, include executors and adminis- trators.130 There arc also eases to the effect that if the word "assigns" is used, executors and administrators are included, so as to prevent them from making any further assignment.i^i h. Lessor's consent to alienation. Even though there is a covenant against an assignment or sublease, the lessor cannot, it would stem, after expressing his consent thereto, assert a liability or forfeiture as against the lessee for making an assign- ment or sublease in aceordar^ce with such eonsent.i^^ jje would be estopped to assert a liability on account of an act which he has himself induced. 127 See Walker v. Wadley, 124 Ga. enant against assignment. The 275, 52 S. B. 904. court said that the word "succes- 128 Roe d. Gregson v. Harrison, 2 sors" in the covenant included execu- Term R. 425; Lloyd v. Crispe, 5 tors, but that the transfer must be Taunt. 249. See, also. Doe d. Good- regarded as by the lessee himself, behere v. Bevan, 3 Maule & S. 357. is= Moses v. Loomis, 156 ill. 392, 40 129 Anonymous, 1 Dyer, 66 a, pi. S; N. E. 952, 47 Am. St. Rep. 194; Anonymous, Moore, 21; Seers v. Knoepker v. Redel, 116 Mo. App. 62, Hind, 1 Ves. Jr. 294. See Lee v. 92 S. W. 171; Doe d. Henniker v. Lorsch, 37 U. C. Q. B. 262. Watt, 8 Barn. & C. 308. 130 Williamson v. Williamson, 9 In Smith v. St. Philips' Church, Ch. App. 729, 732, per James, L. J. 107 N. Y. 610, 14 N. E. 825, it was 131 More's Case, Cro. Bliz. 26 ; decided that where, for a number of Thornhil v. King, Cro. Eliz. 757; years, the lessor had received rent Smalpiece v. Evans, And. 123. See from the lessee, who had erected on Williams, Executors (9th Ed.) 811. the premises an apartment house. But in Moore v. Farrand, 1 Leon, apartments in which were leased by (pt. 1) 3, there is a contrary dictum, him, this involved a license to him In West Shore R. Co. v. Wenner, to continue making such leases in 70 N. J. Law, 233, 57 Atl. 408, 103 spite of a covenant in the lease not Am. St. Rep. 801 (ante, note 119), to sublet the whole or any part of it was contended that a foreclosure the premises. The court says that sale after the lessee's death under the conduct of the lessor was equiva- a mortgage given by the lessee was lent to a consent to construe the not covered by a condition of for^ lease as not applying to such a sub- feiture in case the lessee or his "sue- leasing. But the ordinary rule is cessors" failed to comply with a gov- that if the language of an instru- § 152 RESTRICTIONS ON RIGHT. 9^3 It is sometimes provided by the instrument of lease that the lessee shall not assign or sublet without the consent or license of the lessor,i3* and in such a case the lessor may arbitrarily re- fuse his consent without giving any reason.^ ^4 j^ England there is quite frequently a modified provision of this character, as, for instance, that consent shall be necessary, but that it shall not be withheld arbitrarily. A withholding of consent from a desire to compel the lessee to sell to the lessor has been regarded as being within such a prohibition of an arbitrary withholding of consent,^3° and a like decision was rendered when consent was not to be "unreasonably withheld in the case of any respectable and responsible person, "i^e 33^^ g, provision of the last men- tioned character was held to justify a refusal of consent to an assignment to a corporation, when its object was to obtain the premises, not for the use of the premises as contemplated by the lease, but merely as part of- a, transaction by which the lessees ■withdrew their opposition to certain legislation.i^T j^ stipula- tion that consent shall not be withheld arbitrarily or without good or sufficient reason does not preclude a withholding of consent to an assignment to one whose purpose is to use the premises in a way which might affect adversely neighboring ment is unambiguous, and here it enant not to sublet without written appeared to be so, the parties cannot consent, and also provided that the give it another meaning by construe- lessee should not use the premises tion. The references in the opinion for the sale of certain articles, ex- in this case to the distinction be- cept by written consent, a written tweeu a contract for lodgings and consent to use the premises for the an ordinary lease appear to be inap- sale of certain other articles was plicable, since a lease of an apart- held not to involve a consent to a ment, exclusive possession of which sublease. Farr v. Kenyon, 20 R. I. is taken, is a technical lease. Ante, 370, 39 Atl. 241, 39 L. R. A. 773. § S. 131 Weatherall v. Geering, 12 Ves. 133 The consent of a superintend- Jr. 504; Hill v. Rudd, 99 Ky. 178, 35 ent of a railroad, appointed by the S. W. 270. receiver of the lessor railroad com- 135 Lehmann v. McArthur, L. R, pany, was held to be a compliance 3 Eq, 746. But this was questioned with a requirement of the consent in the opinion on appeal, 3 Ch. App. of the superintendent of the com- 496. pany. Kansas City Elevator Co. v. 120 Bates v. Donaldson [1896] 2 Q. Union Pac. R. Co., 3 McCrary, 463, B. 241. 17 Fed. 200. "^ Harrison v. Barrow-in-Furness Where the lease contained a cov- C6rp., 63 Law T. (N. S.) 834. 934 TRANSFER OP LEASEHOLD. § 152 property belonging to the lessor,!^* and in such a case the les- sor has been regarded as acting within his rights when, as a pre- requisite to giving his consent to a sublease, he inquired the pur- pose for which the property was to be used by the subtenant, and stipulated for a similar covenant on the part of the sublessee re- quiring his, the head lessor's, consent to any assignment or sub- lease by the subtenant.i^* It has even been said that a refusal of consent ' ' upon advice, ' ' without stating the grounds of the re- fusal, was not arbitrary.! *° If the consent of the lessor is, in case of such provisions as are referred to above, improperly with- held, the lessee may make the transfer without incurring any lia- bility in damages or risk of forfeiture,^*! but he must ask for consent, and, though consent could not properly be withheld, yet, if he makes the transfer without asking for it, the lease may be forfeited under a condition of forfeiture in the lease.^^^ Where there was a condition against assigning, underletting, or otherwise pa,rting with possession, without the lessor's consent, a consent to an assignment by the lessee was held to authorize a transfer of possession to tlie proposed assignee, previous to the making of the assignment.* *3 When the lease provides that a consent or license to assign shall be in writing, a verbal license, it has been decided in Eng- land, is not sufficient.!** In this country, however, a different view has been tak'en in the case of the requirement of a written consent to a subletting, presumably on the theory that the re- quirement of a writing is waived by the verbal license ;!*5 and it 138 Bridewell Hospital v. Fawkner, i44 Roe d. Gregson v. Harrison, 2 8 Times Law R. 637. Term R. 425; Richardson v. Evans, 130 In re Spark's Lease [1905] 1 3 Madd. 218. See, also, Willmott v. Ch. 456. Barber, 15 Ch. Diy. 96, 105. i*oTreloar v. Bigge, L, R. 9 Exch. i« Livingston County Tel. Co. v. 151- Herzberg, 118 111. App. 599; "Wels- 1" Treloar v. Bigge, L. R. 9 Exch. brod v. Dembosky, 25 Misc. 485, 55 151; Hyde v. Warden, 3 Exch. Div. N. Y. Supp. 1; Chesapeake Brew. Co. 72; Sear v. House Prop. & Inv. Soc, v. Mt. Vernon Brew. Co., 107 Md. 528, 16 Ch. Div. 387; Goodwin v. Satur- 68 Atl. 1046 (semble). But see an ley, 16 Times Law R. 437. implication to the contrary in Ind- us Barrow v. Isaacs [1891] 1 Q. B. ianapolis Mfg. & Carpenters' Union 417; Eastern Tel. Co. v. Dent [1899] v. Cleveland, C, C. & I. R. Co., 45 1 Q. B. 835. Ind. 281. In Wertheimer v. Hosmer, 143 West V. Dohb, L. R. 4 Q. B. 634, 83 Mich. 56, 47 N. W. 47, 10 L. R. L. R. 5 Q. B. 460. A. 80, it is said that "if the lease § 152 RESTRICTIONS ON RIGHT. 935 has also been held that a waiver occurs if the lessor acquiesces in the assignment and fails "seasonably to object thereto. "i*® Even in England it is recognized that if the lessor, by his con- sent to an assignment or sublease, induces the assignee or sub- lessee, in ignorance of the requirement of a written consent, to make expenditures, he is estopped to deny the validity of his consent.^*'' Apart from circumstances involving an estoppel, it would seem that a waiver of the contract requirement of a written license, being in effect itself a contract, would be valid only if sup- ported by a consideration.1^8 It has in one case been said, without discussion, that an assent to an assignment of a lease under seal is valid, "as between the parties," although not itself under seal.i** Such a consent would, it is conceived, be sufficient for every purpose, in the absence of a specific requirement of a seal. That the lease is under seal is immaterial. It has been held that a landlord, asserting that an assignment was without his consent, has the burden of showing the lack of eonsent.^^" On the other hand, it has been decided that when the lease provided that the premises should not be assigned or sublet without the lessor's consent, expressed in writing on the back of the instrument of lease, the production of the instrument without such indorsement constituted prima facie evidence of the lack of consent.^si provides that the license shall be in landlord. But this might be based writing, an oral license is not good," on the theory that the person so' but that the requirement of written entering was in as a licensee rather consent "may be orally waived." than as a sublessee. Such a distinction between an oral no Warner v. Cochrane (C. C. A.) license and an oral waiver of a re- 128 Fed. 553, citing Kansas City quirement of a written license is in Elevator Co. v. Union Pac. R. Co., its nature a fine one. In Benson v. 3 McCrary, 463, 17 Fed. 200. Suarez, 43 Barb. (N. Y.) 408, 19 i*7 See Richardson v. Evans, 3 Abb. Pr. 61, 28 How. Pr. 511, it was Madd. 218; Willmott v. Barber, 15 decided that one to whom premises Ch. Div. 96, 105. were leased by a lessee with the "s See Spota v. Hayes, 36 Misc. landlord's oral consent, though the 532, 73 N. Y. Supp. 959. lease required a written consent, i^o Stillman v. Harvey, 47 Conn. was not, on entering, a wrongdoer, 26. so as to be unable to recover for in- i5o Leduke v. Barnett, 47 Mich. jury to his property on the premises 158, 10 N. W. 182. by the fall of an unsafe building on isi Berryhill v. Healey, 89 Minn. adjoining premises belonging to the 444, 95 N. W. 314. 936 TRANSFER OP LEASEHOLD. § 152. i. Restriction as covenant running with the land. The ques- tion how far covenants not to assign or sublet are covenants run- ning with the land, so as to bind assignees of the lessee, is appar- ently not entirely settled. In lilngland it has been clearly decided that a covenant not to assign without license, assigns being named in the covenant, is binding on an assignee of the lessee, as being a covenant which touches or concerns the land.^^^ But a ques- tion has been made whether it would so operate in the absence of the word "assigns" in the covenant.' ^^'^ It being conceded that it passes when "assigns" are named, it is not clear why it should not do so when they are not named.i^'' It has been well said in a modern English textbook 1^5 -th^t "the covenant not to assign without license is assuredly not one relating to a thing not in esse at the time of the demise, so as to come within the latter portion of the first resolution in Spencer's Case.i^^ It is either a covenant which touches and concerns the land, so as to bind assigns, whether named or not, or it is a covenant not touching and concerning the land at all, so as, apart from the doctrine of notice,' not to bind assigns, even though named." There are to be found suggestions to the effect that the covenant itself, without mention of assigns, shows an intention that the cov- 152 Williams v. Earle, L. R. 3 Q. standing of the rule in Dumpor's B. 739; Varley v. Coppard, L. R. 7 Case. C. P. 505; McEacharn v. Colton In West v. Dobb, 38 Law J. Q. B. [1902] App. Gas. 104. See 7 Am. 291, L. R. 4 Q. B. 637, note, Lord Law Rev. 261. Blackburn is reported to have said 153 In Philpot V. Hoare, 2 Atk. 219, that his judgment in Williams v. Lord Hardwicke said that "the cov- Earle, L. R. 3 Q. B. 739 (ante, note enant in this lease not to assign 152), applied only to the case where does not run with the land to the assigns were mentioned, and In the assignee, because assignees are not report first above cited he is stated bound by name In the covenant." to have made particular reference But according to another report of to Spencer's Case in that connection, the same case (2 Amb. 480), there isi In Horsey Estate v. Steiger was no reference to the failure to [1899] 2 Q. B. 79, it is broadly mention assigns. In Lynde v. stated, obiter, by Lord Russell of Kil- Hough, 27 Barb. (N. Y.) 415, it is lowen, that a covenant or condition said that a covenant not to underlet not to assign runs with the land, does not bind the lessee's assignee iss 1 Smith's Leading Cases (11th in the absence of the word "as- Ed.) at p. 73, notes to Spencer's signs." The statement, however, Case. seems to be based on a misunder- ise See § 149 b (4), ante. § 15-2 RESTRICTIONS ON RIGHT. 937 enant shall not run as against assigns.i^^ But as to this it may be said that, while a stipulation against assignment, without words expressly making it binding upon assigns, may show that the covenantee did not anticipate any necessity of its application to an assignment by an assignee, it surely does not show an inten- tion that, if it should be violated by the lessee, the assignee should have thereafter the unrestricted right to assign as he chose. A covenant against assignment, even though in terms extend- ing to assigns, does not apply to the act of a sublessee in parting with his interest, since he is not an assign.i^^ It has been decided in one state that, even in spite of a cov- enant not to assign without the lessor's consent, expressly made binding on assigns, an assignment may be made by an assignee, to the original lessee, without obtaining consent, since the cov- enant was evidently not intended to apply to such a case.i''^ But this view has been expressly disapproved in an English case, on the ground that the fact that the lessee was at one time satis- factory as tenant to the lessor does not show him to be so satis- lactory at the time of the reassignment, when his financial cir- cumstances may have entirely changed.^®" A condition not to assign, although in a lease to a man "and liis assigns," is, it has been decided, not void for repugnancy, the word "assigns" applying to such assigns as there may law- fully be by license or by operation of law.i^i'*^- iw In Bally v. Wells, 3 Wils. 25, Mass. 431; Donaldson v. Strong, 195 there is a dictum that "a covenant Mass. 429, 81 N. E. 267. not to assign generally must be per- leo McEacharn v. Colton [1902] sonal and collateral, and can only App. Cas. 104. bind the lessee himself. There ii^i. ^'^- Weatherall v. Geering, 12 never can be any assignee"; and in Ves. Jr. 504, 511. See Dennis v. Smith, Landl. & Ten. (3d Ed.) p. 16, Loving, Hardres, 427. note, it is said that "a general cov- In Shields v. Russell, 66 Hun, enant not to assign in which assigns 226, 20 N. Y. Supp. 909, afd. 142 N. .. , , . -ti, Y. 290, 36 N. E. 1061, a lease, which are not mentioned does not run with ■ , c » ^, ,,,.,,. , . in connection with a previous con- the land, for it obviously contem- .,..,. j. , . veyance constituted m effect a plates that the land shall not pass ^j^.tgage from the lessee to the les- into the possession of the assignee." ^^^.^ provided for a conveyance of issvilliers v. Oldcorn, 20 Times the property upon the payment of Law R. 11. a certain sum (the sum secured) to 11^5 McCormick v. Stowell, 138 the lessee, "his heirs, administra- 938 TRANSFER OF LEASEHOLD. § 15'2 j. Effect of breach of stipulation against alienation — (1) Cov- enants and conditions. The effect of a breach of a stipulation against assignment or subletting will differ accordingly as there is merely a covenant to that effect, or there is a provision for re- entry or forfeiture in case of such prohibited transfer. Con- sidering first the case of a covenant to this effect, it is evident that, in view of the nature of a covenant, its breach can give the landlord merely a right to recover damages, and that it gives him no right to terminate the lease.^^'^ In order to create a condition, that is, a right of re-entry or forfeiture, as distinct from a covenant, a mere stipulation is not sufficient, but an in- tention to create a condition must plainly appear .^^i If the lease contains a condition against assignment and not merely a covenant to that effect, the lessor has, in case of breach, the right to enforce it, as any other condition, by re-entry and termination of the lessee's interest.i^s But though the landlord may terminate the leasehold interest upon a breach of a condi- tion against assignment or subletting, the mere breach of the con- dition, like the breach of any other condition, does not have such effect in the absence of any action by the landlord.!^® tors and assigns," and also con- Dutch.) 285; Spear v. Fuller, 8 N. talned a covenant against an as- H. 174, 28 Am. Dec. 391. signment of the lease, and it was is* Shaw v. Coffin, 14 C. B. (N. S.) held that the assignee could enforce 372; Crawley v. Price, L. R. 10 Q. the provision for a conveyance. B. 302; Hague v. Ahrens (C. C. A.) This decision, however, was hased 53 Fed. 58. See post, § 194 b. on the ground that otherwise the Though a condition against alien- right of redemption would be lost, ation is valid if imposed upon the rather than on the ground that the lessee, a lessee cannot, on assigning, presence of the word "assigns" nul- impose a condition subjecting the lifled the covenant against assign- leasehold to forfeiture in case of an ment. assignment by the assignee, this be- 163 Paul V. Nurse, 8 Barn. & C. ing an attempt to create a condi- 486; In re Pennewell, 55 C. C. A. tlon against alienation upon the .571, 119 Fed. 139; Randol v. Tatum, transfer of the entire interest in 98 Cal. 390, 33 Pac. 433; Shumway personalty, which is as invalid as V. Collins, 72 Mass. (6 Gray) 227; if sought to be imposed on the con- Chautauqua Assembly y. Ailing, 46 veyance of a fee simple interest. Hun (N. Y.) 582; Kew v. Trainer, See Co. Litt. 223 a; Gray, Restraints 150 111. 150, 37 N. E. 223; Eldredge v. on Alienation, § 27. Bell, 64 Iowa, 125, 19 N. W. 879; Den '63 See post, § 194 e (4). d. Bockover v. Post, 25 N. J. Law (1 i»b Adams v. Shirk, 43 C. C. A. § 152 RESTRICTIONS ON RIGHT. 939 (2) Validity of alienation. In view of the cases cited in the coarse of the foregoiag remarks, as to the remedy for breach of a covenant or condition not to assign or sublet, and of the fact that even the breach of a condition to this effect does not ipso facto terminate the leasehold interest, it would necessarily seem that one to whom the lessee has assigned or sub- let, in violation of the stipulation in the lease, should stand in the same position as if the assignment or sublease had not been prohibited. Accordingly, it is generally assumed that a pro- hibited assignment, if not objected to by the landlord, vests the leasehold in the assignee.^*'' It has been decided that the as- signor cannot assert such violation of a stipulation against assign- ment as a defense to an action by the assignee for possession,!^* and the assignment has been regarded as valid for the purpose of ejectment against a third person.^^* It has also been decided that the assignee cannot repudiate liability to the landlord on a covenant for rent or on other covenants running with the land, because the assignment was thus wrongfully made,i''° though in one state a different view appears to have been taken as to the assignee's liability on a covenant in such ease.^'^i So the fact that the making of a sublease involves the breach of a covenant is no defense to an action by the sublessor for use and occupa- 407, 104 Fed. 54; Smith v. Goodman, Blake v. Sanderson, 67 Mass. (1 149 111. 75, 36 N. E. 621; Shattuck Gray) 332; Sayles v. Kerr, 4 App. V. Lovejoy, 74 Mass. (8 Gray) 204; Div. 150, 38 N. Y. Supp. 880; Oil Meyer Bros.' Assignee v. Gaertner, Creek & C. B. Petroleum Co. v. 106 Ky. 481, 50 S. W. 971, 45 L. R. Stanton Oil Co., 23 Pa. Co. Ct. R. A. 513. 153. 107 See cases cited ante, note 163. I'l In Missouri it has been decid- 168 Bemis v. Wilder, 100 Mass. ed by the intermediate appellate 446; Spear v. Fuller, 8 N. H. 174, 28 court that the assignee might de- Am. Dec. 391. tend against a claim for rent or i69Betts V. Dick, 1 Pen. (Del.) taxes, and presumably against any 268; Hague v. Ahrens, 3 C. C. A. other claim by the landlord, on the 426, 53 Fed. 58. Also for the pur- ground that the assignment was pose of a condemnation proceeding, prohibited (Hynes v. Ecker, 34 Mo. Putney Bros. Co. V. Milwaukee Light, App. 650), unless the assignment Heat & Trac. Co., 134 Wis. 379, 114 was in some way ratified by the N. W. 809. landlord (Tylers' Estate v. Giesler, "0 Sexton v. Chicago Storage Co., 74 Mo. App. 543). 129 111. 318, 16 Am. St. Rep. 274; 940 TRANSFER OF LEASEHOLD. § 152 tioii,i^2 jior does it entitle the sublessor to turn the sublessee out of possession.!'^* On the same principle the assignee would, it seems, be entitled to the benefit of a covenant by the lessor, although the assign- ment to him was prohibited by the lease, and that this is so has been assumed in one state.i'^* Ji^ that same state, however, as well as in another, an assignee has been, under such circum- stances, denied the benefit of a covenant by the lessor to renew the lease.!'^" These latter cases do not discuss the question, and, conceding the validity of an assignment made contrary to a cov- enant or condition of the lease, these cases can, it would appear, be based only on the theory that the covenant for renewal is to be construed with reference to the covenant against assignment, and as consequently providing for renewal only in behalf of the lessee himself, or in behalf of an assignee who has become such in accordance with the terms of the lease. In one state it has been decided that one to whom an assign- ment is made in violation of a stipulation of the lease has no interest which a court of equity will protect,!'^ « and in another that, under certain circumstances, the lessor may obtain a cancel- lation of the assignment.i'^^ There are also occasional judicial intimations that an assignment in violation of a covenant is not effective as an assignment, without any direct adjudication to that effect.!'^^ Such a view is not in accord Avith the cases gener- 172 Fordyce v. Young, 39 Arlt. 135. see instead of to the assignee to 173 Broadway Bldg. Co. v. Myers, avoid such result. 49 Misc. 531, 97 N. Y. Supp. 977. i^e Rees v. Andrews, 169 Mo. 177, 174 Dierig v. Callahan, 35 Misc. 30, 69 S. W. 4. 70 N. Y. Supp. 210. 1" It was decided that if the prop- 175 Drummond v. Fisher, 43 N. Y. erty of the lessee had become vested St. Rep. 135, 16 N. Y. Supp. 867; in a receiver, the lessor could not Id., 45 N. Y. St. Rep. 283, 18 N. Y. maintain a summary proceeding for Supp. 142; Emery v. Hill, 67 N. H. breach of the condition not to alien, 330, 39 Atl. 266; Upton v. Hosmer, but that he could intervene in the 70 N. H. 493, 49 Atl. 96. That this receivership proceeding to obtain is so seems to be assumed in War- a cancellation of the conveyance, ner v. Cochrane, 63 C. C. A. 207, Gunning v. Sorg, 113 111. App. 332; 128 Fed. 553. In Emery v. Hill, Id., 214 111. 616, 73 N. E. 870. supra, it is said that the assignee is ns See Springer v. Chicago Real not recognized as tenant though the Estate, Loan & Trust Co., 202 111. 17, lessor accepts his check for rent, 66 N. E. 850; Raid v. John F. Weiss- the receipt being given to the les- ner Brew. Co., 88 Md. 234, 40 Atl. § 152 RESTRICTIONS ON RIGHT. 941 ally, and is, it is submitted, erroneous on principle, as giving to a mere contract the effect of divesting a right of an essentially pro- prietary character, that is, the power of alienation. Further- more, if an assignment in violation of a covenant not to assign is invalid, the introduction of a proviso for forfeiture on breach of the covenant is absolutely unnecessary for the protection of the lessor, and it might perhaps be questioned whether the courts would ordinarily enforce a forfeiture for the doing of an iibsolutely nugatory act. (3) Waiver of breach. As stated in another place,!^* the right to take advantage of the breach of a condition is waived by a course of action on the part of the landlord which recognizes the relation of landlord and tenant as still existing, and this principle applies in full force in the case of a breach of condi- tion against assignment or subletting. Accordingly, if the land- lord, knowing of the breach, accepts rent accruing after the breach, he thereby loses the right to enforce a forfeiture.iso 877. So in Garcia v. Gunn, 119 Cal. the question was merely whether 315, 51 Pac. 684, while it is properly one who took an assignment with said that hreach of such a condi- the landlord's consent, expressly as- tion does not render the assignment suming the covenants on the part void hut merely voidable at the les- of the lessee, could divest himself sor's option, the statement therein of liahillty under such assumption that, if consent is subsequently ob- by an assignment to another with- tained, the title passes to the as- out consent. He could not so di- signee as of the time of the assign- vest himself of liability, it is sub- ment, suggests that title would not mitted, even by an assignment with pass in the absence of consent, consent (post, § 158 n [b b]). In And in Porter v. Merrill, 124 Mass. Shirk v. Adams (C. C. A.) 130 Fed. 534, the court seems to assume that 441, it was held that an assignment the right of the assignee of a lease in violation of a covenant was suffl- containing a covenant not to assign cient to invalidate insurance subse- to sue for rent one to whom his as- quently obtained by the assignor, signer had sublet arose from the conditioned upon his having good fact that the original lessor after- title. wards recognized the assignee as I'oSee post, § 194 i (1). tenant. iso Goodright v. Davids, Cowp. In Adams v. Shirk, 43 C. C. A. 407, 80'3; Webster v. Nichols, 104 111. 104 Fed. 54; Id., 55 C. C. A. 25, 117 IGO; Randol v. Tatum, 98 Cal. 390, Fed. 801, it appears to be thought 33 pac. 433; Crouch v. Wabash, St. that the assignment would have been l. & P. R. Co., 22 Mo. App. 315; invalid had the landlord not waived Murray v. Harway, 56 N. Y. 337; all objection thereto. But there Clark v. Greenfield, 13 Misc. 124, 34 942 TRANSFER OF LEASEHOLD. | 152 It has in England been decided that, when there is a cove- nant against assigning or demising the~ premises or permitting any person other than the lessee to occupy them, with a right of forfeiture on breach, and the lessee subleases, the action of the landlord in permitting the sublessee to remain is not a continu- ing breach of the covenant not to sublet,!**! nor of that as to occupancy,! ^2 and that, consequently, after an act involving a waiver of the original breach, a forfeiture cannot be asserted on account of the sublessee's continued occupancy. But there is a case in this country which seems to involve an assertion that a single assignment constitutes a continuing breach, so that the subsequent acceptance of rent does not involve a waiver of the right to enforce a forfeiture of the balance of the term.i^s In one state the waiver of the breach of a condition against as- signment, that is, the failure to enforce a forfeiture on accouut of such breach, has been regarded as precluding the enforcement of a forfeiture on account of a subsequent breach.^** (4) Damages for breach. The measure of damages for the breach of a covenant not to assign or sublet is, it seems, generally speaking, the amount of loss to which the landlord is subjected by the assignment.!*^ ^^d one who sublet in violation of a cov- enant, knowing at the time of subletting that the sublessee in- N. Y. Supp. 1; Id., 67 N. Y. St. Rep. the effect of the restriction In the 857, 34 N. Y. Supp. 1; Porter v. Mer- consent given. Collins v. Has- rill, 124 Mass. 534; Ireland v. Nich- brouck, 56 N. Y. 157, 15 Am. Rep. ols, 46 N. Y. 413; Smith v. Edge- 407. wood Casino Club, 19 R. I. 628, 35 isiGoodright v. Davids, Cowp. Atl. 884, 36 Atl. 128, 35 L. R. A. 790. 803. The record of the assignment does i82 Walrond v. Hawkins, L. R. 10 not charge the lessor with notice C. P. 342. thereof so as to render his subse- iss Walker v. Wadley, 124 Ga. 275, quent acceptance of rent a waiver 52 S. E. 904. of the breach. Upton v. Hosmer, 70 is4 gee post, note 201. N. H. 493, 49 Atl. 96. iss Williams v. Earle, L. R. 3 Q. Acceptance of rent from the sub- B. 739. The lessor's right to sue the tenants was held to have the effect lessee for breach of covenant not named, although the breach of con- to assign is not affected by the fact dition consisted in the fact that the that he has himself accepted an as- lessee, after receiving the landlord's signment from the assignee. Hazle- consent to a sublease for a certain hurst v. Kendrick, 6 Serg. & R'. period, inserted a covenant for re- (Pa.) 446. newal in the sublease so as to avoid § 152 RESTRICTIONS ON RIGHT. 943 tended to conduct a dangerous trade on the premises, was held liable, under the covenant, for the injury caused by a fire result- ing from such dangerous trade.^*" And the sublessor has been held liable for extra insurance which the head landlord was com- pelled to pay on account of the purpose for which the sublease was made.^*' On the same principle, the landlord could pre- sumably recover from the assignor or sublessor for any loss resulting from acts of waste on the part of the assignee or sub- lessee, though he coiild also recover directly for such acts from the latter, if pecuniarily responsible. "Whether the landlord could recover, under the covenant, for any loss resulting from the insufficiency of the chattels of the assignee or sublessee, as compared with those of the lessee, to satisfy his claim for rent on a distress or by the enforcement of a landlord's lien, seems questionable, such loss being somewhat speculative in its nature. Usually, since the original lessee remains, even after assign- ment, liable on the express stipulations of the lease,^*^ an as- signment or subletting by him in violation of the covenant will not support a claim for substantial damages, however disagree- able and unsatisfactory to the landlord the occupancy by the transferee may be. But the case is different if the breach is by an assignee of the original lessee, since such assignee is no longer liable,^ ^^ and in assessing the damages in such case, it has been held, the court will consider in hoAV much worse a posi- tion the landlord will be, both in respect of breaches which have already occurred, and future breaches, than he would have been in if the covenant had not been broken.^"" ise Lepla V. Rogers [1893] 1 Q. B. the landlord could recover as against 31. him the rent which his assignee was 187 Rouiaine v. Simpson, 84 N. Y. unable to pay, and also the cost of Supp. 875. repairs which such second assignee 188 See post, § 157 a (2). was unable to pay. 189 See post, § 158 a (2) n. In Munro v. Waller, 28 Ont. 574, 190 Williams v. Earle, L. R. 3 Q. it was held that while the lessor B. 739. could recover the amount of his loss In Langton v. Henson, 92 Law T. by reason of the pecuniary irrespon- (N. S.) 805, it was held that upon sibility of the second assignee, any an assignment by an assignee in vio- lack of such responsibility upon the lation of the covenant, this reliev- part of the first assignee must be jng such assignee from liability for considered in fixing the amount, rent and on a covenant for repairs, In Patching v. Smith, 28 Ont. 201, 944 TRANSFER OF LEASEHOLD, j^ 1 59 k. Injunction against breach. It has been decided that equity will interpose by injunction to prevent an assignment in violation of a covenant or condition,!^! and an injunction has been issued, even after the making of a prohibited sublease, to prevent the continuance of the sublessee's enjoyment of the premises.i''^ An injunction to restrain the continuance of the occupation of the sublessee has, on the other hand, been refused, when the lessor had, by the acceptance of rent, waived the right of forfeiture, thus relinquishing his remedy at law.i^" 1. The rule in Dumpor's case. By "the rule in Dumpor's case," i®* if the landlord gives a license to the tenant for the breach of a condition against assignment, or if the condition be not to assign without license, and a license is once given to assign, the condition is wholly destroyed. This rule, based as it is on the technical theory of the entirety and unapportionability of a condition, though frequently the subject of criticism,^^^ has been it was decided that the lessor could Casino Club, 19 R. I. 628, 35 Atl. 884, recover as damages the amount of 36 Atl. 128, 35 L. R. A. 790. an installment of rent which he had loi 4 Coke, 119 b, 1 Smith's Lead- lost by reason of an assignment to ing Cases (11th Ed.) 32. a man of straw. io= it is spoken of by Lord Eldon, "1 McEacharn v. Cotton [1902] in Brummell v. Macpherson, 14 Ves. App. Cas. 104. And that an injunc- Jr. 173, as "extraordinary." And tion might issue for this purpose is see, to the same effect. Doe d. Bos- suggested in Knoepker v, Redel, 116 cawen v. Bliss, 4 Taunt. 736; Dakin Mo. App. 62, 92 S. W. 171. v. Williams, 17 Wend. (N. Y.) 447, 102 Godfrey v. Black, 39 Kan. 193, 22 Wend. 201; Kew v. Trainor, 150 17 Pac. 849, 7 Am. St. Rep. 544, 111. 150, 37 N. E. 223. So it is where the decision was based partly spoken of by Mr. Joshua Williams on the fact that the sublease was (Real Prop. [4th Am. Ed.] p. 262) of a portion of a hotel office for use as one of those "artificial and tech- for a real estate business, and that nlcal rules" founded "on th'e mis- a continuance of such use was cal- chievous scholastic logic then rile culated to affect the reputation and in the courts of law," and owing value of the hotel property. But their origin to an "antiquated sya- the decision was also based on the tem of endless distinctions without ground that presumably a continu- solid differences." The unsound- ance of the lease is to the advantage ness of the decision in Dumpor'S of the lessor, and that consequently Case, both on reason and authority, a re-entry would not give adequate is stated at length, with great co- redress, gency and learning, by Mr. Joseph 193 Gillian v. Norton, 33 How. Pr. Willard in an article in 7 Am. Lavf (N. y.) 373; Smith v. Edgewood Rev. 617. § 152 RESTRICTIONS ON RIGHT. 945 followed in several cases.^"*' In England it has now been abol- ished by statute.i^^ The only method of avoiding the effect of the rule is, it is said, tor the lessor, on giving the license to assign, to create a fresh provision for re-entry on any future breach,^^^ and the mere insertion in such license of a provision that the assignee shall hold subject to the performance of the covenants and conditions contained in the original lease is not, it appears, sufficient for this purpose.i^^ There are dicta to the effect that the rule applies only to the case of a license before breach, and that the mere waiver of the breach, after it has occurred, does not destroy the condition.^"" In one state, however, the rule has been applied though there was merely a waiver of a preceding breach by the acceptance of rent.201 There are also decisions to the effect that the waiver of a previous breach of a condition against subletting does not de- stroy the condition,202 ^,■^|; some of these decisions are based i3ii Brummell v. Macpherson, 14 that a mere "tolerance" of a breach. Ves. Jr. 173; Pennock v. Lyons, IIS that is, a failure to re-enter therefor, ■Mass. 92; Murray v. Harway, 56 N. is not "tantamount to a license," and Y. 337. It has been suggested that Sir James Mansfield seemed to be of the American eases might be sus- the same opinion. This was, how- tained, without reference to the rule ever, a case of underletting and not of Dumpor's case, on the ground of assignment. In Doe d. GrifTitbi that the condition did not, in them, v. Pritchard, 5 Barn. & Add. 765,. expressly bind the lessee's assigns. Taunton, J., says that "there is a. See 1 Smith's Leading Cases (9th difference between waiving the con- Am. Ed. Boston) 138. But in neither dition, as in Dumpor's Case, and of these cases is any such distinction waiving the particular breach. The suggested. courts in modern times have been 197 St. 22 & 23 Vict. c. 35; 23 & 24 inclined to consider the breach over- Vict. c. 28. looked rather than the condition ns 108 Williams, Real Prop. (4th Am. waived." See, also, Farr v. Ken- Ed.) 381. yon, 20 R. I. 376, 39 Atl. 241, 39 L. 190 2 Preston, Conveyancing, 198. R. A. 773; Seaver v. Coburn, 64 But in Kew v. Trainor, 150 111. 150, Mass. (10 Cush.) 324. 37 N. E. 223; Springer v. Chicago 2 Williams v. Bosanquet, 1 Brod. by which real estate may be affected. & B. 238 ; Boston, C. & M. R. Co. v. Jennings v. Sparkman, 39 Mo. App. Boston & L. R. Co., 65 N. H. 393, 663. *51, 23 Atl. 529; Williams v. Down- In Joseph Speidel Grocery Co. v. ing, 18 Pa. 60. See post, § 158 a (2) M. E. Stark & Co., 62 W. Va. 512, 59 (e). S. E. 498, it is held that when the But failure to transfer the pos- statute requires the record only of session has been regarded as rais- conveyances for a term more than ing a presumption of fraud as five years, an assignment of a term against the assignor's creditors. of two years need not be recorded. Joseph Speidel Grocery Co. v. M. E. 270 See Bemis v. Wilder, lOO Mass. Stark & Co., 62 W. Va. 512, 59 S. E 446; Williams v. Downing, 18 Pa. 498. CO. But in Maryland the assign- 271 See Ross v. Schneider, 30 Ind. ment is, it appears, nugatory unless 423; Overman v. Sanborn, 27 Vt. 54.. 958 TRANSFER OF LEASEHOLD. | I55 simple is effective for this pnrpose,^'^ and, as before stated, if there is a transfer of the whole term it is, in most jurisdictions, an assignment, though purporting to be a subleage.^'s The formal requisites of a sublease are the same as those of an original lease, a matter which has been previously eon- sidered.^^'^ § 155. Assignment by way of mortgage. A leasehold interest in land, like any other interest therein, may be made the subject of a mortgage by the owner of such interest.^'^® As to whether such a mortgage is to be regarded as a "chattel" mortgage, or as a mortgage of land, the view differs in different states and under different statutes.^'^ An assignment, in terms, of the 275 Worthington v. Lee, 61 Md. "lease," is an assignment of tlie 530; De Pere Co. v. Reynen, 65 Wis. leasehold. Patten v. Deshon, 67 271, 22 N. W. 761, 27 N. W. 155; Mo- Mass. (1 Gray) 325; McNeil v. Ken- Lennan v. Grant, 8 Wash. 603, 36 dall, 128 Mass. 245, 35 Am. Rep. 373; Pac. 682. Potts T. Trenton Water Power Co., 9 2^6 See ante, § 151. N. J. Eq. (1 Stockt.) 592; Trahue 277 See ante, §§ 25-33. V. McAdams, 71 Ky. (8 Bush) 77. ='8 See Commercial Bank v. Prit- A bequest of all of one's interest chard, 126 Cal. 600, 59 Pac. 130. in certain property in which he has 279 it has been decided that a pro- a leasehold interest is in effect an vision for the record of mortgages assignment of that interest. Mar- of lands, tenements and heredita- tin V. Tobin, 123 Mass. 85. ments applies to a mortgage of a An agreement by which the lessee leasehold (Johnson v. Stagg, 2 _sold to another the right to use and Johns. [N. Y.] 510), and that such possess the land as long as he him- a mortgage is within a provision as self could have done so was held to to the execution and recording ot be in effect an assignment. Ind- "any deed, mortgage or other in- ianapolis Mfg. & Carpenters' Union strument of writing by which any V. Cleveland, C, C. & I. R. Co., 45 Ind. land, tenement or hereditament shall 281. be conveyed, or otherwise affected" A transfer by a lessee of a store- (Paine, Kendall & Co. v. Mason, 7 house, of all his property "of every Ohio St. 198). But in New Jersey nature and description, consisting it has been held that an act requir- of goods, wares, merchandises, etc., ing deeds or conveyances of lands, contained in the storehouse occu- tenements and hereditaments to be pied" by him, was held to be an as- recorded does not apply to the mort- signment of the leasehold Interest in gage of a leasehold. Hutchinson v. the storehouse. Boyce v. Bakewell, Bramhall, 42 N. J. Eq. 372, 7 Atl. 873, 37 Mo. 492. apparently overruling Decker v. I 156 CONTRACT TO ASSIGN. 959 In jurisdictions in which a mortgage transfers the legal title, the mortgage of a leasehold interest is properly an assignmentj^*" placing the mortgagee, as we shall see later, in privity of estate with the landlord. The case is different in jurisdictions in which the mortgage does not pass the legal title.^^^ The mort- gagee, if he takes possession, is responsible to the mortgagor, like any other mortgagee, for the rents and profits of the land.^*^ § 156. Contract to assign. An executory contract to assign does not have the effect of an assignment, as transferring the legal title and right to pos- session, but gives merely an equitable interest,^*^ though the right to a legal assignment may be enforced,^^* unless the lease requires the lessor's assent and this he refuses to give,^*^ or other circumstances exist to preclude such relief. Clarke, 26 N. J. Bq. (11 C. E. Green) Green) 163. But as to the last case, 163; Spielmann v. Kliest, 36 N. J. compare Hutchinson v. Bramhall, 42 Eq. (9 Stew.) 199. And it has heen N. J. Eq. 372, 7 Atl. 873. so decided in Pennsylvania as to a In Stat'e Trust Co. v. Casino Co., 5 statute applying to mortgages of App. Div. 381, 39 N. Y. Supp. 258, "real estate." Bismark Bldg. & and Westchester Trust Co. v. Hobby toan Ass'n v. Bolster, 92 Pa. 123. Bottling Co., 102 App. Div. 464, 92 In New York, where by statute the N. Y. Supp. 482, it was decided that term "real property" includes chat- a statute in reference to filing "any tels real except leases for a term mortgage creating a lien upon real not exceeding three years, a mort- and personal property" did not ap- gage of a leasehold for over three ply to a mortgage which covered years is, it has been held, within a only a leasehold and certain person- statute requiring mortgages of real al chattels. property to be recorded. Westches- 280 Stockett v. Howard, 34 Md. ter Trust Co. v. Hobby Bottling Co., 121; Willison v. Watkins, 28 U. S. 102 App. Div. 464, 92 N. Y. Supp. (3 Pet.) 43, 7 Law. Ed. 596. 482; Id., 185 N. Y. 577, 78 N. E. 281 See post, § 158 a (2) (f). 1114. 282 North Chicago St. R. Co', v. Le That provisions requiring chattel Grand Co., 95 111. App. 435. mortgages to be recorded do not ap- 283 Boston EI. R. Co. v. Grace & ply to a leasehold mortgage, see Hyde Co., 50 C. C. A. 239, 112 Fed. Booth V. Kehoe, 71 N. Y. 341; State 279. Trust Co. V. Casino Co., 19 App. Div. 28* Hyde v. Warden, 3 Exch. Div. 344, 46 N. Y. Supp. 492; Gaylord v. 72; Winter v. Dumerque, 12 Jur. (N. Cincinnati German Bldg. Ass'n, 2 S.) 726. Civ. R. (Ohio) 163; Jennings v. 285 willmott v. Barber, 15 Ch. Div. Sparkman, 39 Mo. App. 663; Decker 96. V. Clarke, 26 N. J. Eq. (11 C. E. 960 TRANSFER OP LEASEHOLD. § I57 It has been decided to be the duty of the vendor of a lease- hold interest, and not of the vendee, to procure the lessor's con- sent to- the transfer, if this is required by the lease,2*® and the vendor is liable in damages if he fails to use his best endeavors so to do.2^^ A lessee who had contracted to assign subject to the lessor's approval was held to be relieved from liability if he did all that he could to obtain such approval, though the lessor acted unreasonably and vexatiously in refusing to give it.-*® A contract to assign is a contract for the sale of an interest in land within the fourth section of the English statute of frauds, or its local equivalent.-**" § 157. Liabilities of assignor. a. To landlord — (1) Based on privity of estate. The lia- bilities of the lessee, based upon the relation of landlord and tenant, as distinguished from those based on contractual stipula- tions, that is, as it is technically expressed, those based on "privity of estate" as distinguished from those based on "priv- ity of contract," necessarily continue only so long as that re- lation continues, and consequently come to an end upon the lessee's assignment of the leasehold interest, the assignee then becoming tenant in the lessee's stead.^''* But it is necessary, iti order that the lessee be thus relieved from his liabilities based on privity of estate, that the assignee be accepted by the landlord as tenant, either by express assent to the assignment, or by an act indicating assent, such as the receipt of rent from the assignee, since the tenant has no right to destroy the tenancy, into which he has entered, without the landlord's assent.^^i So it has been =s" Lloyd V. Crispe, 5 Taunt. 249; Johnson v. Reading, 36 Mo. App. 306. Mason v. Corder, 7 Taunt. 9; Austin 200 Walker's Case, 3 Coke, 22 a; V. Harris, 76 Mass. (10 Gray) 296; Marsh v. Brace, Cro. Jac. 334; Mills Roberts v. Geis, 2 Daly (N. Y.) 535. v. Auriol, 1 H. Bl. 433; Aurlol v. 2ST Day V. Singleton [1S99] 2 Ch. Mills, 4 Term R. 94; Wadham v. Mar- 320. lowe, 8 East, 314, note; 'Wall \. sssLehmann v. MoArthur, 3 Ch. Hinds, 70 Mass. (4 Gray) 256, 64 App. 496. Am. Dec. 64; McBee v. Sampson, 66 =s^ Kingsley v. Siebrecht, 92 Me. Fed. 416; Consolidated Coal Co. v. 23, 42 Atl. 249, 69 Am. St. Rep. 486; Peers, 166 III. 361, 46 N. B. 1105; Bernheimer v. Verdon, 63 N. J. Eq. Bliss v. Gardner, 2 III. App. (2 312, 49 Atl. 732; Smith v. Perkins, Bradw.) 422. 15 Ky. Law Rep. 627, 24 S. W. 722; ::fi Auriol v. Mills, 4 Term R. 94; § 157 LIABILITIES OF ASSIGNOR, 961 held that an action for use and occupation, which is based on the relation of tenancy, that is, on privity of estate, as well as on contract,2^2 -^yju -[{q against the lessee although he has assigned his interest, provided the assignee has not been accepted as ten- ant293 The principle that liabilities based on privity of estate cease to burden the lessee after an assignment by him finds an appli- cation in the rule that an action of debt for rent, being based, not on a contract to pay rent, but rather on the theory that the ten- ant has taken the profits due by the land, Avill not lie against the lessee after an assignment by him, and the acceptance by the lessor, either express or implied, of the assignee as his tenant.^®* And other liabilities from which the lessee is relieved by an assignment, assented to by the landlord, may be suggested, such as that for waste. Consumers' Ice Co. v. Bixler, 84 By such statements is meant, It Is Md. 437, ?5 Atl. 1086; Wadham v. conceived, that the lessee Is liable Marlowe, 8 East, 315, note; Har- for the rent by reason merely of his mony Lodge v. White, J30 Ohio St. enjoyment of the land, that is, his 569, 27 Am. Rep. 492 ; Montgomery v. receipt of the profits, this constitut- Spence, 23 U. 0. Q. B. 39. ing the quid pro quo necessary to 282 See post, § 302. support an action of debt. (See 203 Shine v. Dillon, 1 Ir. R. C. L. Prof. Ames' article in 8 Harv. Law 277. Rev. 252). So Lord Mansfield says 284 See cases cited ante, notes 290, that the action of debt Is founded 291. not merely on the terms of the de- In Walker's Case, 3 Coke, 22 a, mise but on the enjoyment of the it is stated that there is privity of tenanf. Wadham v. Marlowe, 8 contract between the lessor and les- East, 314, note, 1 H. Bl. 438, note, see for the purpose of an action of Apparently, in the time of Coke, as debt. But it is also said in the same was the case in the' time of the Year case that upon eviction the lessor Books, the word "contract" was used shall not have an action of debt In in a sense different from that in respect of the contract because it is which it is used at the present day, a "real contract," and the person as referring only to transactions in is not the debtor "but in respect of which the duty arose from the ra- the land." And so in Kidwelly v. ceipt of a quid pro quo, that is, such Brand, 1 Plowd. 70, it is said by as would give rise to an action of Mountague, C. J., that in the case debt. See note by Prof. Ames in of a ^ease for life or years, rendering 8 Harv. Law Rev. at p. 253 ; Pol- rent, the land is the principal debtor, lock. Contracts (7th Ed.) 171. It and the person of the lessee is "no is in this sense that the word is used debtor but in respect of the land." in Walker's Case, 3 Coke, 22 a, su- L. ana Ten. 61. 962 TRANSFER OP LEASEHOLD. § J57 (2) Based on privity of contract. Upon an assignment by a lessee, though, as we shall presently see, the assignee becomes liable upon the express covenants of the lessee which ' ' touch and concern" the land,2»5 the lessee remains liable on such cove- nants, as well as on others, for the reason that one who has sub- jected himself to a contractual liability cannot divest himself thereof by his OAvn act.^o" The fact that the landlord, either expressly or impliedly, consents to such assignment, as when he gives his consent to the assignment in accordance with a require- ment in the lease of such consent,^®^ or he accepts rent from the assignee,^** does not affect the lessee's continuing liability on his pra. (Compare ante, § IC, note Co., 159 Ind. 337, 64 N. E. 680; Rec- fi). In Woodward v. Marshall, 1 tor v. Hartford Deposit Co., 190 111. Salk. 82, it is said, arguendo, and 380, 60 N. E. 528; Wineman v. Phll- apparently admitted, that debt for lipg, 93 Mich. 223, 53 N. W. 168; Bon- rent is founded on the privity of es- etti v. Treat, 91 Cal. 223, 27 Pac. tate, hut action of covenant is found- 612, 14 L. R. A. 151; House v. Burr, ed upon the privity of contract. 24 Barb. (N. Y.) 525; Pfaif v. Gold- -05 See post, § 158 a (2). en, 126 Mass. 402. 290 Barnard v. Godscall, Cro. Jac. zm Bachelour v. Gage, Cro. Car. 309; Brett v. Cumberland, Cro. Jac. igg; Barnard v. Godscall, Cro. Jac. 521; Thursby v. Plant, 1 Lev. 259; 309; Norton v. Acklane, Cro. Car. Baynton v. Morgan, 21 Q. B. Div. 579; Barnes v. Northern Trust Co., 101, 22 Q. B. Div. 74; Garner v. 169 111. 112, 48 N. E. 31; Grommes Byard, 23 Ga. 289, 68 Am. Dec. 527; v. St. Paul Trust Co., 147 111. 634, 35 Consolidated Coal Co. v. Peers, 166 N. E. 820, 37 Am. St. Rep. 248; Har- 111. 361, 46 N. E. 1105, 38 L. R. A. ris v. Heackman, 62 Iowa, 411, 17 624; Heller v. Dailey, 28 Ind. App. N. W. 592; Wall v. Hinds, 70 Mass. 555, 63 N. E. 490; Barhydt v. Bui*- (4 Gray) 256, 64 Am. Dec. 64; gess, 46 Iowa, 476; Wall v. Hinds, 70 Charless v. Froebel, 47 Mo. App. 45: Mass. (4 Gray) 256, 64 Am. Dec. 64; Bouscaren v. Brown, 40 Neb. 722, 69 Jackson v. Brownson, 7 Johns. (N. N. W. 385; Taylor v. DeBus, 31 Ohio Y.) 227, 5 Am. Dec. 258; Holliday v. St. 468; Frank v. Maguire, 42 Pa. Noland, 93 Mo. App. 403, 67 S. W. 77; Creveling v. De Hart, 54 N. J. 663; Washington Natural Gas Co. v. Law, 338, 23 Atl. 611; Edwards v. Johnson, 123 Pa. 576, 16 Atl. 799, 10 Spalding, 20 Mont. 54, 49 Pac. 443; Am. St. Rep. 553; Jones v. Parker, Bailey v. Wells, 8 Wis. 141, 76 Am. 163 Mass. 564, 40 N. E. 1044, 47 Am. Dec. 233; Hartz v. Eddy, 140 Mich. St. Rep. 485; Shaw v. Partridge, 17 479, 103 N. W. 852; Shand v. McClos^ Vt. 626; Fryszka v. Prybeskl, 139 key, 27 Pa. Super. Ct. 260; Mont- Mich. 461, 102 N. W. 977. See, as to gomery v. Spence, 23 U. C. Q. B. 39. the continuing liability for rent. In Piatt, Covenants, 491, other cases post, § 181 \, at notes 655-662. to the same effect are cited. As- 29' Jordan 'v. Indianapolis Water carete v. Pfaff, 34 Tex. Civ. App. 375, § 167 LIABILITIES OF ASSIGNOR. 963 stipulations. And au express consent in the instrument of lease to the assignment of the leasehold has no greater effect.^'* This principle, that the lessee remains liable on his covenants, is most frequently applied in the case of a covenant to pay rent, upon which the lessee continues liable, and which may be en- forced against him in case his assignee fails to perform his duty of paying the rent.^"" It has also been applied, or its appli- cation suggested, in the case of a covenant against waste, so as to render the lessee liable for waste committed by his assignee,^''! and in the case of covenants to repair,30 3 ^q p^y taxeSj^"^ to drill for oil,^"* and not to build on adjoining premises.®''^ Occasional statements are to be found to the effect that while a lessee remains liable after an assignment by him, upon his express covenants, he does not so remain liable on his "implied" covenants.^"® The only implied covenant which has been specif- ically named in this connection is that for rent," implied " from the words "yielding" and "paying, "^i^^ and such a covenant has accordingly been occasionally held not to bind the lessee after 78 S. W. 974, contra, quotes a dictum sos Batchelour v. Gage, Ore. Car. of Shaw, C. J., rendered In Patten 188. V. Deshon, 67 Mass. (1 Gray) 325, 306 Ghegan v. Young, 23 Pa. 18; which is certainly not law in Massa- Charless v. Froebel, 47 Mo. App. 45; chusetts. See Wall v. Hinds, 70 Consumers' Ice Co. v. Bixler, 84 Md. Mass. (4 Gray) 256, 64 Am. Dec. 64. 437, 35 Atl. 1086; Fanning v. Stim- Nor do the Texas cases cited (Gld- son, 13 Iowa, 42; Harmony Lodge v. dings V. Felker, 70 Tex. 176, 7 S. W. White, 30 Ohio St. 569, 27 Am. Rep. 694; Le Gierse v. Green, 61 Tex. 128) 492; Kimpton v. Walker, 9 Vt. 191. support the decision. sot in Bacheloure v. Gage, Wm. 299 Rector V. Hartford Deposit Co., Jones, 223, in deciding that the les- 190 111. 380, 60 N. E. 528. see was liable, under his covenant 300 See post, § 181, at note 653. not to erect a building on the land, 301 Jackson v. Brownson, 7 Johns, for the act of his assignee in erect- (N Y.) 227. ^'^S a building, the- court is reported 302 Brett V. Cumberland, Cro. Jac. to have said that "there is a differ- 521; Barnard v. Godscall, Cro. Jac. ence between covenant in deed and 309. , covenant in law, for if it were a cov 303 McKeon v. Wendelken, 25 Misc. enant in law, after assignment and 711 55 N. Y. Supp. 626; Mason v. acceptance, no action lies against the Smith, 131 Mass. 510. first lessee." The report of the case 304 Washington Natural Gas Co. in Batchelour v. Gage, Cro. Car. 188, v. Johnson, 123 Pa. 576, 16 Atl. 799, states merely that "the court con- 10 Am. St. Rep. 553. cejved that inasmuch as it is an ex- 964 TRANSFER OF LEASEHOLD. §157 assigmnent.^'*® But, as elsewhere stated,^"® it is doubtful whether a covenant created hy such language is not properly an express covenant, and, taking this view, there seems to be little, if any, room for the application of the asserted rule that the les- see remains liable on his implied covenants. It is sometimes said that the lessee is relieved from liability on his covenant if the landlord accepts the assignee "as his ten- ant. "^^^ This, however, as appears from the cases previously cited, is not correct. Such a statement, however, may perhaps mean merely that the lessee is relieved from liability if the cir- cumstances show that the landlord regards the assignee as hold- ing, not under the former lease, but under a new lease, that is, as lessee and not as assignee, in which case there results, as else- where explained,*! 1 a surrender of the previous lease, whereupon the former lessee's liability on the covenants thereof comes to an end. In case of the death of the lessee, the liability on his covenant may be enforced against his estate, even though he assigned the leasehold, and the breach did not occur during his life,*!^ ^}ia,t is, as he himself remains liable after assignment, his estate is so liable on his death. As the lessee remains liable on his covenants after assignment, so a guarantor of the performance of his covenants remains liable as such.^i^ press covenant that he shall not v. Collins, 18C Mass. 507, 71 N. E. build, it shall bind him and his ex- 979. ecutors," etc. The court presum- sii See post, § 190 d. ably had in mind the so-called "im- s" Brett v. Cumberland, Cro. Jac. plied" covenant to pay rent. An im- 521; Scott v. Lunt, 32 U. S. (7 Pet.) plied covenant, that is, a covenant 596, 8 Law. Ed. 797; Broadwell v. In law, not to build, is not readily Banks, 134 Fed. 470; Greenleaf v. conceivable. Allen, 127 Mass. 248; Van Renssel- 308 Fanning v. Stimson, 13 Iowa, aer's Ex'rs v. Platner, 2 Johns. Cas. 42; Harmony Lodge v. White, 30 (N. Y.) 17; Pate v. Oliver, 104 N. C. Ohio St. 569, 27 Am. Rep. 492; 458, 10 S. E. 709. Kimpton v. Walker, 9 Vt. 191; An- 313 Oswald v. Fratenburg, 36 Minn, onymous, 1 Sid. 447 (dictum). 270, 31 N. W. 173; Morgan v. Smith, 303 See post, § 171 b. 70 n. Y. 537; Damb v. Hoffman, 3 B. 310 See e. g., Patten v. Deshon, 67 d. Smith (N. Y.) 361; Almy v. Mass. (1 Gray) 325. The same view Green, 13 R. I. 350. See Way v. is indicated in Whicher v. Cottrell, Rged, 88 Mass. (6 Allen) 364. 165 Mass. 351, 43 N. E. 114; Cooley § 1 LIABILITIES "OF ASSIGNOR. 965 The lessee is not relieved trom liability on his covenants by the fact that his assignee expressly assumes liability thereon.^i* b. To assignee. The question of the possible liabilities of the assignor of a leasehold to the assignee thereof has ordinarily arisen with reference to covenants for title by the assignor, ex- press or implied. There are -in this country several decisions to the effect that, upon the assignment of a leasehold interest, no covenants for title are to be implied in favor of the as- signee,3iB and this view has the support of a distinguished Avriter.sie On the other hand, it is said, in a modern English ease,5i'f that "if the (assignee) be disturbed in his possession, which he is when distrained upon for rent, an action of cov- enant will lie upon the word 'grant' in the indenttire of assign- si* Wineman V. Phillips, 93 Mich, deed, which is equivalent to saying 223, 53 N. W. 168; Charless v. Proe- that there are no implied covenants, hel, 47 Mo. App. 45; Ranger v. Bacon, if the owner of the leasehold pur- 3 Misc. 95, 22N. Y. Supp. 551; Adams ports to transfer merely his "right, r. Shirk (C. C. A.) 104 Fed. 54. title and interest" under the lease, 815 In Blair v. Rankin, 11 Mo. 442, he is obviously not liable for any de- it is said that "although the words fects of title or incumbrances on the 'grant' or 'demise' create an implied leasehold. Ballou v. Orr, 14 Misc. covenant against the lessor, yet it 402, 70 N. Y. St. Rep. 749, 35 N. Y. is nowhere said that the same words Supp. 1040; Alford v. Cobb, 35 Hun will, in an assignment, create an im- (N. Y.) 651. In Knickerbacker v. plied covenant against the assignor. Killmore, 9 Johns. (N. Y.) 106, there The object and Intent of the parties was an express covenant limited to in making an assignment is to put the assignor's own acts, and this the assignee in place of the lessee, itself would prevent the Implication and when that Is done the assignee of any different covenants. See ceases to have any further concern Rawle, Covenants for Title, § 275. with the contract unless he has sie Rawle, Covenants for Title, § bound himself by express cove- 272, citing Landydale v. Cheyney, nants." In Waldo v. Hall, 14 Mass. Cro. Eliz. 157. But in that case, 486, it was held that no covenants though the defendant's counsel ar- were implied from the words "grant- gued that there was no warranty im- ed, bargained and sold" used on the plied on the grant or assignment of assignment of a lease. To the same the leasehold, the decision was ap- effect, that covenants are not to be parently based on the ground that, implied, see MoCienahan v. Gwynn, the lessee's estate having terminated, 3 Munf. (Va.) 556, and Sanborn v. the covenant also came to an end. Cree, 3 Colo. 149, in which latter See Rawle, op. cit. § 275. case it is said that an assignee with- sit Baber v. Harris, 9 Adol, & E. out warranty stands in the position 532. of one claiming under a quitclaim 966 TRANSFER OF LEASEHOLD. § 157 ment." And there is an old authority, apparently, to the effect that the word "grant" in an assignment of a chattel real created a warranty .3** There are also occasional decisions or dicta to be found in this country to the effect that the ordinary rule that a warranty of title is to be implied on the sale of a per- sonal chattel applies to the assignment of a term for years, a chattel real.^i'' Tf such a rule npplins to the case of the assign- sis In Simpkin Simeon's Case, Y. towit, that one who contracts to B. 29 Edw. 3, 48, and 30 Bdw. 3, 14, make an assignment of a leasehold It was adjudged, as stated by Lord in the future is bound to furnish a Coke in Spencer's Case (5 Coke, 16). good title, a requirement as to the that "this word grant in this case of duties- of a vendor which exists in grant of a ward (being a chattel the case of one contracting to sell real) did import of itself a war- any interest in land. See Rawle, ranty." Covenants for Title, § 32. In Wet- In Piatt, Covenants, 48, the writer zell v. Richcreek, 53 Ohio St. 62, 40 says that while the word "grant" did N. E. 1004, the same error occurs as not create a covenant in the case of to the decision in Souter v. Drake, a conveyance in fee simple, it did so 5 Barn. & Adol. 992, but the court operate on the assignment of a chat- refuses to decide whether there are tel interest. For the latter part of any implied covenants of title on an this statement he cites Person v. assignment. In Lewis v. Richard- Jones, 2 Rolle, 399, Palm. 388, where son, 2 Ind. T. 341, 51 S. W. 969, the there is a dictum to the effect that statement in Jeffers v. Baston, Eld- the word "grant" would create a cov- ridge & Co., 113 Cal. 345, 45 Pac. 680, enant. It does not, however, ap- is quoted with approval. And In pear whether an assignment of a Mains v. Henkle, 2 Ohio Dec. 730, chattel interest or a conveyance in it is asserted that a covenant of quiet fee simple was in question in that enjoyment is to be implied on an as- case, which is translated in Viner's signment for a valuable considera- Abr., Covenant (L , a.) p. 446. See, tion. also, Co. I^itt. 384 a, Butler's note, In Winstell v. Hehl, 69 Ky. (6 from which it appears that that Bush) 58, it is said that an assign- learned annotator thought that a ment does not import "an implied covenant might be implied from the undertaking by the assignor; that word "grant" on an assignment of a the assignees' of the lease shall have leasehold provided the assignment the undisturbed possession of the de- is not in terms a conveyance in fee mised premises during the term," simple. and that "the implied obligation 319 See Jeffers v. Easton, Eldridge of the assignor is less comprehensive, & Co., 113 Cal. 345, 45 Pac. 680. This and does not exceed that which is gen- case cites, as supporting this doc- erally implied by the assignment of triqe, the case of Souter v. Drake, a bond for money on the conveyance 5 Barn. & Adol. 992, which, however, of land, which is that the assignor decided something entirely different, has a right to pass to the assignee § 157 UABILITIBS OF ASSIGNOR. 967 ment of a leasehold, it is difficult to see why a warranty oi: title should not also be implied on the creation of a leasehold, this being a transfer of a chattel interest, to be paid for by install- ments of rent. But there is, it seems, no such implied warranty by a lessor, apart from the use of certain words of demise.^'^o The instrument of assignment may, and frequently does, eon- tain express covenants of title, and these are usually subject to the rules which would apply to similar covenants on a transfer of an estate in fee simple, as to their construction and scope,*^! as to what constitutes a breach,"'-- the persons entitled to the benefit thereof, ^-^ and the measure of damages for breach .^-^ what his assignment purports to paramount title and possession in pass; or, in other words, that he is another. Wetzell v. Richcreek, 53 the absolute and unconditional own- Ohio St. 62, 40 N. E. 1004. er of the land, and has a right to de- A covenant of warranty limited to mand what it calls for; and that he the right, title and interest of the will respond for the sufficiency of the assignor does not apply to a liability obligor or his representatives." for rent or taxes accruing after the What this means it is difficult to say. assignment. Trask v. Graham, 47 320 See ante, § 80. Minn. 571, 50 N. W. 917. A covenant ■f-i A stipulation that the lease is for title was held not to be broken "genuine and in full force and by the tact that a sublease had been effect," and guaranteeing to the as made by the assignor, the benefit of signee "the rights and title of said which was expressly transferred to lease," was regarded as equivalent to the assignee as a part of the trans- a covenant of seisin and of peaceable action of assignment. Pease v. enjoyment. Wetzell v. Richcreek, 53 Christ, 31 N. Y. 141. It seems that Ohio St. 62, 40 N. E. 1004. the case would have been the same Where the assignor agreed to re- had the right to the rents reserved fund any such sum as might be re- on the sublease passed merely as in- covered from the assignee by suit at cident to the assignment of the prin- law by reason of his purchase, it was cipal lease. held that he was liable for the in- 323 in Woodburn v. Renshaw, 32 crease of rent incurred by the as- Mo. 197, it was held that since a signee, upon taking a new lease from covenant by the assignor that the the owner of the freehold, after re- premises were free from taxes and covery against him by the latter in assessments was broken as soon as ejectment. Wray v. Lemon. 81* Pa. made in case there were taxes then 273. due, the benefit thereof did not pass 322 A covenant of seisin and peace- to an assignee of the assignee. See able enjoyment was regarded as Rawle, Covenants for Title, § 205. broken by such assignor if he was mTTae measure of damages for unable to deliver possession to the breach of a covenant of seisin and assignee on account of a prior and for peaceable enjoyment was held to 96S TRANSFER OF LEASEHOLD. § 158 A covenant by the lessee, made for the protection of the inter- ests of the landlord, cannot, ordinarily at least, be enforced by an assignee of the leasehold, even in jurisdictions where third persons are allowed to enforce a contract made for their benefit, such a covenant being evidently not made for the benefit of such assignee.^2'' § 158. Liabilities of assignee. a. To landlord — (1) Based on privity of estate, The as- signee of a leasehold interest becomes the tenant in place of his assignor, and is substituted for the latter as regards liabilities arising from privity of estate. Thiis, he is liable for the rent reserved in an action of debt, by reason of such privity, without reference to any eovenant,^^^ ^nd he is liable if lie commits waste.^^" In case the leasehold is by the assignee reassigned to another, the first assignee is no longer in privity of estate with the land- lord, and, consequently, his liability based thereon is termi- nated.328 (2) Based on privity of contract — (a) At common law and by statute. It has been said that, at common law, covenants ran with the land, though not with the reversioUj^^a that is, that the benefit and burden of the covenants of the lease passed on an be at least the consideration paid ing in the market with such as- for the assignment. Welzell v. Rich- signee. creek, 53 Ohio St. 62, 40' N. E. 10O4. 326 Walker's Case, 3 Coke, 22 a; See, upon the question of measure of Thursby v. Plant, 1 Wms. Saund. 237, damages, Rawle, Covenants for Title, note (1); Howland v. Coffin, 26 c. 9, summarized in 2 Tiffany, Real Mass. (9 Pick.) 52, 29 Mass. (12 Pi-op. § 400. Pick.) 125; McKeon v. Whitney, 3 32B The only case bearing on this Denio (N. Y.) 452. point is that of Findlay v. Carson, 97 327 See ante, § 109 b (4). Iowa, 537, 66 N. W. 759, where it was 32s See Daniels v. Richardson, 39 decided that a covenant by the les Mass. (22 Pick.) 565. see of a coal mine not to operate an- 320 See 1 Wms. Saund. 241 b, notes other mine, inserted in the lease in 3 and 6 to Thursby v. Plant; 1 order that the lessee might give his Smith's Leading Cases (11th Ed.) whole time and attention to the mine 55, notes to Spencer's case; Bickford leased and thus increase the royal- v. Parson, 5 C. B. 920, 930; Manches- ties to be paid under the lease, could ter Brewery Co. v. Coombs [1901] 2 not be enforced by the lessee's as- Ch. 608. See, also, ante, § 149 b (1), signee to prevent the lessee compet- notes 76, 77. § 158 LIABILITIES OF ASSIGNEE. 969 assignment of the leasehold, though not on a transfer of the re- version. The effect of this view would be that, for the purpose of imposing liability under covenants running with the land, the statute of 32 Hen. 8, e. 34, before discussed,33o -^^^s entirely un- necessary. The courts have not been entirely consistent in this regard, they sometimes referring to the rights and liabilities of an assignee of the leasehold, in connection with the covenants of the lease, as being based on this statute, and sometimes ignor- ing the statute in this connection. In a number of the states there are specific statutory provi- sions for the passing of the benefit of and liability under the stipulations of a lease to a transferee of the leasehold, as well as to a transferee of the reversion.^si These statutes are usually expressed in considerably broader terms than the English stat- ute, but the limitations and restrictions upon the running of cov- enants as established in England have ordinarily been adopted in this country withoiit particular reference to the language of any local statute. The most important and frequent application of the principle that the assignee is liable upon the lessee's covenants occurs in the case of a covenant to pay rent,^^^ i^q^ tj^e principle has been applied in connection with numerous other covenants, including covenants to repair,^^"' to pny taxes,^^^ to reside on the prem- In Fitzh. Abr., Covenant, pi. 30, it does not repair, action of covenant is said that in 18 Heu. 3, writ of lies against the assign, for it is a covenant was held, by agreement of covenant which runs with the land." court, maintainable by assignee for This decision is placed by Brooke in a term of years. Fitzherbert's work 25 Hen. 8, that is, five years before was first published in 1514. The the passage of the statute, case referred to by him is found in sso gee ante, § 149 b (1). Bracton's Note Book, 804, and Profes- ssi gee ante, § 149 b (1), notes 79- sor Maitland, in a note thereto, says 86. that "it is very noteworthy that the 332 See post, § 181 b. benefit of a lessor's covenant was 333 gpencer's Case, 5 Coke, 16 a; considered assignable at this early Minshull v. Oakes, 2 Hurl. & N. 793; date." Williams v. Earle, L. R. 3 Q. B. 739; In Bro. Abr., Covenant, pi. 32, it is Demarest v. Willard, 8 Cow. (N. Y.) said that "if a man leases a house 206; Crawford v. Witherbee, 77 Wis. and land for years, and the lessee 419, 46 N. W. 545, 9 L. R. A. 561. covenants that he and his assigns And see ante, § 116 i. will repair the house, and the lessee ss* Salisbury v. Shirley, 66 Gal. grants over his term, and the assign 223, 5 Pac. 104; State v. Martin, 82 970 TRANSFER OF LEASEHOLD. ^ 15,S ises,335 not to carry on particular classes of trade thereon,336 to insure, under certain circumstances,^"" and not to assign without the lessor's assent, at least when assigns are mentioned.^ss Other covenants, the burden or benefit of which run with the land, have been previously named, as have the general principles de- termining the running of covenants upon a transfer of the lease- hold as well as of the reversion.^^^ The assignee cannot repudiate liability on his lessee's cov- enant on the ground that he did not know thereof, since he is bound to take notice of the contents of the instrument of leasCj^*" but he is not liable if the landlord expressly agrees at the time of the assignment that he shall not be liable.^*^ (b) Stipulations not under seal. Even though it be con- ceded that covenants ran at common law before the statute of 32 Hen. 8, c. 34, upon an assignment of the reversion," ^2 n ,joes not appear that stipulations not constituting covenants, as not being under seal, ever ran, and such stipulations are not within the scope of that statute, which applies in terms only to cov- enants in indentures of leases.^*'' Consequently, the question might be suggested whether the benefit or burden of such an unsealed stipulation would run at the present day, without ref- erence to any statute.^'* Without question the local statutes in force in a number of states, providing for the transfer of the rights and liabilities of the original parties to the lease, not be- Tenn. (14 Lea.) 92, 52 Am. Rep. 167; sio Barroilhet v. Battelle, 7 Cal. Post V. Kearney, 2 N. Y. (2 Comst.) . 450; West Virginia, C. & P. R. Co. v. 394, 51 Am. Dec. 303. See ante, §§ Mclntire, 44 W. Va. 210, 28 S. E. 696; 143 g, 149 b, note 112. Washington Natural Gas Co. v. John- 335 Tatem v. Chaplin, 2 H. Bl. 132. son, 123 Pa. 576, 16 Atl. 799, 10 Am. 336 Mayor of Congleton v. Pattison, St. Rep. 553. 10 East, 136; Wertheimer v. Wayne 341 Benedict v. Bverard, 73 Conn. Circuit Judge, 83 Mich. 56, 47 N. W. 157, 46 Atl. 870; Pond v. Torrey, 180 47. Mass. 226, 62 N. E. 266. 337 Vernon v. Smith, 5 Barn. & Aid. 3-12 gee ante, note 329. 1; Northern Trust Co. v. Snyder's 34.1 See ante, § 149 b (7). Adm'x, 46 U. S. App. 179, 587; Thom- 344 in Dougherty v. Matthews, 35 as' Adm'r v. Vonkapff, 6 Gill & J. Mo. 520, 88 Am. Dec. 126, the as- (Md.) 372. See ante, § 145 b, at signee of a lessee under an unsealed note 151. instrument of lease is regarded as 338 See ante, at note 152. not bound by the stipulations there- 339 See ante, § 149 b. in. § 158 LIABILITIES OF ASSIGNEE. 971 ing ill terms restricted to "indentures of lease,"-''' Avould be regarded as dispensing with any necessity that the lease be un- der the seal of the covenanting party. And in a number of states, in which the use of private seals has been by statute abolished, the presence or absence of a seal would be immaterial in this as in other connections. (c) Breaches of covenant before assignment. The liability to which the assignee becomes subject is a liability for breaches of the covenant which may occur after the assignment, and not those which may have occured by the lessee's fault prior there- to.3*« Accordingly, in the case of a covenant to pay rent, the assignee is not liable thereunder for rent which may have become due before the assignment,^^^ unless he expressly as- sumes liability therefor.^^s In some cases the courts seem to have gone rather far in inferring an assumption of liability from the language used.^^" Occasionally a covenant is such that any "'i^See ante, § 149 b (2), notes 79- 3io In Fontaine v. Schulenburg & 86. Boeckler Lumber Co., 109 Mo. 55, 18 •""Grescot v. Green, 1 Salk. 199; S. \V. 1147, 32 Am. St. Rep. 648, it Brlttin v. Vaux, Lutw. 109; St. Sav- was held that a corporation which iour's V. Smith, 3 Burrow, 1271; As- "stepped into the shoes" of the les- tor V. Hoyt, 5 Wend. (N. Y.) 603;' see, occupying the premises and con- Tillotson V. Boyd, 6 N. Y. Super. Ct. tinning its business, was liable for (4 Sandf.) 516; Dananberg v. Rhein- taxes which had previously become helmer, 24 Misc. 712, 53 N. Y. Supp. due, since it presumably assumed the 794; Farmers' Bank V. Mutual Assur. lessee's debts. And in Farmers' Soc, 4 Leigh (Va.) 69. Bank v. Mutual Assar. Soc, 4 Leigh But the assignee may lose his (Va.) 69, a covenant by the assignee leasehold owing to the enforcement to pay all the rents and perform all of a forfeiture for a breach of cove- the covenants in the lease containted nant which occurred prior to the as- and required to be performed by the signment, when the lease expressly lessee was held to render him liable gives a right of re-entry. See Collen- for breaches previous to the assign- der V. Smith, 20 Misc. 612, 45 N. Y. ment. And a like holding was made Supp. 1130, and post, § 194 h. when the assignment provided that 347 Thomas v. Connell, 5 Pa. 13. the assignee should hold the lease Even though it was payable in ad- "under the terms thereof and under vance for the period during which and subject to the covenants and the assignment was made. Wolf v. rents therein reserved and con- Gluck, 24 Misc. 763, 53 N. Y. Supp. tained," and the assignee accepted 874. the assignment, caused it to be re- als Rawlings v. Duvall, 4 Har. & corded, and "received the lease there- McH. (Md.) 1. under." AVoodland Oil Co. v. Craw- 972 TRANSFER OF LEASEHOLD. § 158 breach thereof must have occurred before the assignment, as when something was to be done by the lessee at a certain time and the assignment was after that time, and in such case, neces- sarily, no burden thereunder passes to the assignee.^^o (d) Necessity of legal Eissigninsnt. In order that one be liable on the covenants as an assignee of the leasehold, there must, by the weight of authority, be what purports to be a legal assign- ment to him, and accordingly, the fact that one has, by a con- tract to purchase the leasehold or otherwise, become vested with an equitable interest therein, and has entered thereunder, has been regarded as not sufficient to render him liable.^^i Nor can the equitable assignee be compelled by the landlord to take a legal assignment, so as to impose liability on him.^s^ This being the case when possession is taken under an equitable assign- ment, a fortiori one is not liable as assignee merely because he has possession without any assignment whatever.^Bs In a few cases in this country, the courts have regarded an equitable assignee as liable under the covenants,^^* and, occa- ford, 55 Ohio St. 161, 44 N. B. 1093, 377; St. Louis Public Schools v. 34 L. R. A. 62. Boatmen's Ins. & Trust Co., 5 Mo. 850 Washington Natural Gas Co. v. App. 91; Chicago Attachment Co. v. Johnson, 123 Pa. 576, 16 Atl. 799, 10 Davis Sewing Mach. Co. (111.) 25 N. Am. St. Rep. 553 (covenant to begin E. 669; Id., 142 111. 171, 31 N. E. 438; gas well at certain time); Townsend Bartlett v. Amberg, 92 111. App. 377; V. Scholey, 42 N. Y. 18 (covenant to Haley v. Boston Belting Co., 140 erect building within six months). Mass. 73, 2 N. B. 785; Quackenboss See ante, § 149 b (9), notes 192-194. v. Clarke, 12 Wend. (N. Y.) 555. 351 Crouch v. Tregonning, L. R. 7 S34 Astor v. Lent, 19 N. Y. Super. Exch. 88; Cox v. Bishop, 8 De Gex, ct. (6 Bosw.) 612; Mason v. Breslin, M. & G. 815; Walters v. Northern 9 Abb. Pr. (N. S.) 427; 40 How. Pr. Coal Min. Co., 5 De Gex, M. & G. 629; 436, 32 N. Y. Super. Ct. (2 Sweeny) Mayhew v. Hardesty, 8 Md. 479; 386; Astor v. L'Amoreux, 6 N. Y. Friary, Holroyd & Healey's Brewer- Super. Ct. (4 Sandf.) 524; Carter v. ies V. Singleton [1899] 1 Ch. 86; Hammett, 12 Barb. (N. Y.) 253, 18 Ramage v. Womack [1900] 1 Q. B. Barb. 608; Rothschild v. Hudson, 6 116. Wkly. Law. Bui. (Ohio) 752; Mead 552 Moore v. Greg, 2 De Gex & S. v. Madden, 85 App. Div. 10, 82 N. Y. 304, 2 Phil. Ch. 717, overruling Lucas Supp. 900; Fontaino v. Schulenburg V. Comerford, 1 Ves. Jr. 235, 3 Brown & Boeckler Lumber Co., 109 Mo. 55, Ch. 166; Ramage v. Womack [1900] 18 S. W. 1147, 32 Am. St. Rep. 648 1 Q. B. 116; Merchants' Ins. Co. v. (semble); Berry v. McMullen, 17 Mazange, 22 Ala. 168. Serg. & R. (Pa.) 84. And see Wick- 553 See Camp v. Scott, 47 Conn. 366, ersham v. Irwin, 14 Pa. 108; Negley § 158 LIABILITIES OF ASSIGNEE. 973 sionally, it seems, one has been subjected to liability as assignee merely because in possession of the premises, though he was shown to be in possession neither as legal nor equitable as- signee.*^^ So, although an assignment is, by the statute of frauds or other enactment, required to be in writing, there are occasional decisions to the effect that one is liable as assignee under an oral assignment, if he takes possession of the prem- ises.*"* Though these decisions are mostly based on the doc- trine of part performance, which, it seems, is properly inappli- cable,*"'' their tendency is in. accord with those previously re- ferred to, holding that possession, without any legal assignment, is sufficient to impose liability, since it would frequently be diffi- cult to ascertain whether there is an actual oral assignment ac- companying or preceding the change of possession. V. Morgan, 46 Pa. 285. But as to the in Thomas v. Connell, 5 Pa. 13, New York law, see Bedford v. Ter- and Wlckersham v. Irwin, 14 Pa. 108, hune, 30 N. Y. 453, 86 Am. Dec. 394, it is said that one becomes liable as and other cases cited post, notes 355, assignee by reason of the enjoyment 362. or right of enjoyment of the prem- iss So it was held that where the Ises. lessee's husband entered into pos- sso Baker v. J. Maier & Zobelein session without administration on Brewery, 140 Cal. 530, 74 Pac. 22; the lessee's death, he was to be re- Carter v. Hammett, 12 Barb. (N. Y.) garded as assignee, and liable as 253; Dewey v. Payne, 19 Neb. 540, such so long as he remained in pos- 26 N. W. 248; Edwards v. Spalding, session. Noble v. Thayer, 19 App. 20 Mont. 54, 49 Pac. 443. The au- Div. 446, 46 N. Y. Supp. 302. And thorities cited in the first of the there is a suggestion to the effect above cases furnished no support that one in possession, if not shown to the decision. Tii the last of the to be a sublessee, is liable as an as- above cases there was an express signee, in Frank v. New York, L. E. assumption of liabilities by the as- & W. R. Co., 122 N. Y. 197, 215, 25 signee. That possession is not suffl- N. E. 332. See, also. People v. Ger- cient for this purpose, at least at law, man Bank, 110 N. Y. Supp. 291. see Chicago Attachment Co. v. Davis In Hatch v. Van Dervoort, 54 N. J. Sew. Mach. Co. (111.) 25 N. E. 669; Eq. 511, 34 Atl. 938, mortgagees of a Id., 142 111. 171, 31 N. E. 438, 15 L. stock of goods who took possession R. A. 754; Welsh v. Schuyler, 6 Daly and occupied the building in which (N. Y.) 412, the goods were, for the purpose of 357 The doctrine of part perform- selling them, were held liable for ance is properly applicable only to rent under the lease. Compare Fish- an oral contract, and not to an oral er V. Pforzheimer, 93 Mich. 650, 53 conveyance (ante, § 25 g [5]), and N. W. 828; People v. Gilbert, 64 111. an assignment is a conveyance. But App. 203. even regarding an oral assignment 974 TRANSFER OF LEASEHOLD. J 15g The various decisions above referred to, apparently to the effect that if a person enters into possession by permission of the lessor or the latter 's assignee, he is liable on the covenants as if a legal assignment had been made to him, are presumably to some extent the result of a desire on the part of the courts to impose the liability under the lease upon the person who is enjoying the benefit thereof. But their effect is undoubtedly to confuse the law on the subject, and they are, it is submitted, erroneous as ignoring the well settled rule that a subtenant is not liable on the covenants of the head lease.^Bs The person go- ing into possession of the premises by permission of the original lessee, or the latter 's assignee, biit not under a valid legal assign- ment, must necessarily do so as a tenant of the lessee or of the latter 's assignee.^^*" The fact that the assignment is in violation of a condition or covenant of the lease is, as before stated, no reason for exempting the assignee from liability under the lessee's covenants, since the assignment is valid in spite of the stipulation.^ ^9 ^^ assignee is liable though the assignment is voidable at the option of the assignor, a minor."'"" (e) Assignee's entry unnecessary. At one time it was held in England that the assignee was not liable on the covenants as equivalent to a contract to as- sert that the contract is not legally sign, the doctrine of part perform- enforcible because of the statute of ance, while properly applicable in frauds. But there is no such equity- favor of the assignor who has put in favor of a third person who has his assignee in possession, to ob- done nothing on the faith of the con- tain specific performance of the lat- tract, ter's contract to pay a certain sum ass See post, § 162. for the transfer of the leasehold es- sssa gee ants, §§ 13 a (3), 14 b (2). late, seems entirely inapplicable in sss See ante, § 152 j (2), note 170. favor of a person not a party to such soo Rothschild v. Hudson, 8 Ohio contract to enable him to assert a Dec. 259, 32 Am. Dec. 707. And see liability on the part of such intended Mead v. Madden, 85 App. Div. 10, 82 assignee which can exist only on the N. Y. Supp. 900, where it was decided theory that the assignment has ac- that the fact that an assignment was tually been made. The doctrine set aside as in violation of the bank- of part performance is based on the rupt law did not affect the assignee's theory that after a party has been liability on the covenants. But this induced partially to perform a was based on the theory that pos- contract, it would be inequitable to session was sufiiclent for the impo- allow the other party thereto to as- sition of liability. "§ 168 LIABILITIES OF ASSIGNEE. 975 until he actually entered,*"' and this view has occasionally been taken in this country.^®- But it has been repudiated in most jurisdictions, the legal assignee being regarded as liable though he never takes possession."''" He must, however, accept the -HI Eaton V. Jaques, 2 Doug. 455, necessary to an assignment. The 302 La Dow V. Arnold, 14 Wis. 458; record vel non of the assignment Damainville v. Mann, 32 N. Y. 197, would seem to be absolutely Imma- 88 Am. Dec. 324; McLean v. Cald- terial in this respect. If the court well, 107 Tenn. 138, 64 S. W. 16; had in mind the declarations in Snowden v. Memphis Park Ass'ii, 7-t earlier cases in that state that a con- Tenn. (7 Lea) 225. It is so assumed, veyance by deed, duly acknowledged apparently in Landt v. McCullough, and recorded, is equivalent, as re- 218 111. 607, 75 N. E. 1069. And see gards results, to livery of seisin, It Walton V. Cronly, 14 Weud. (N. Y.) is sufficient to say that this has no 03; Moore v. Chase, 26 Misc. 9, 55 N. application to the transfer of an es- Y. Supp. 621; Tate v. Neary, 52 App. tate less than freehold. Nor can the Div. 78, 65 N. Y, Supp. 40, and the possession in such case be regarded cases cited ante, note 355. as passing by force of the statute The opinion in Sanders v. Part- of uses, there being no seisin on ridge, 108 Mass. 556, contains the fol- which to base the transfer. Sanders lowing language: "It is stated gen- v. Partridge, supra, is referred to In erally in the text books that an ac- Collins v. Pratt, 181 Mass. 345, 63 tual entry upon the demised premises n. E. 946, where, in deciding that by an assignee of the lease, is not an assignee of a leasehold was listble requisite in order, to charge him although he had not taken posses- with the performance of covenants sion, the court distinguishes the running with the land. But we earlier case, saying: "But in that think this proposition will hold good case the assignment was not under only in respect of assignments by seal, and while this was held to deed recorded and delivered; which operate as a transfer of the lease, are usually regarded as effecting a * * * it was further held that he transfer, not only of title, but also of could not escape liability by making the legal possession.' And then fol- a formal assignment without chang- lows the language quoted post, note ing possession." 470. Such a view of the subject has 3C3 Williams v. Bosanquet, 1 Brod. never been asserted elsewhere. The & B. 238; St. Louis Public Schools v. assignment must* of course be deliv- Boatmen's Ins. & Trust Co., 5 Mo. ered in any jurisdiction, that is, an in- App. 91; Babcock v. Scoville, 56 111. tention that it shall take effect must 461; University of Vermont v. Jos- be indicated, as in the case of any lyn, 21 Vt. 52; Mayhew v. Hardesty,, conveyance (see 2 Tiffany, Real 8 Md. 495; Benedict v. Everard, 73 Prop. § 406). If by the reference to Conn. 157, 46 Atl. 870; Trabue v. Mc- a "deed" the court means a sealed in- Adams, 71 Ky. (8 Bush) 74; Fen- strument, it may be remarked that nell v. GufCey, 155 Pa. 38, 25 Atl. previously the opinion had under- 785; Bonetti v. Treat, 91 Cal. 223, taken to show that a seal was not 27 Pac. 612, 14 L. R. A. 151; Whit- 976 TRANSFER OF LEASEHOLD. § ISS assignment in order to be thus liable on covena.nts,36* or, as it may be otherwise expressed, he may, imless he has manifested his acceptance, repudiate the assignment in order to avoid liabil- ity .^^s A burdensome leasehold cannot, it is evident, be cast upon a man against his will. (f) Mortgagee of leasehold. In jurisdictions in which a mort- gage transfers the legal title, the mortgagee is regarded as thQ assignee of the leasehold, and is as such liable on the covenants, without regard to whether he takes possession under the mort- gage.s*^ Even in jurisdictions where a mortgage does not trans- fer the legal title, the mortgagee is liable on the covenants, according to some decisions, if he takes possession.^ ^^ These comb V. Starkey, 63 N. H. 607, 4 Eaton v. Jaques, 2 Doug. 455, in Atl. 793; Smith v. Brinker, 17 Mo. wliicli Lord JJansfield decided that a 14S, 57 Am. Dec. 265; Todd v. Cam- mortgagee of the term, not in pos- eron, 2 XJ. C. Err. & App. 434. session, was not liable on the cov- The taking of possession being enants,' must be regarded as over- unnecessary, an averment thereof ruled. In New Hampshire it has need not be proven. Pingry v. been decided that, though an as- Watkins, 17 Vt. 379; University of signee gives a mortgage back to his Vermont v. Joslyn, 21 Vt. 52. assignor, the assignee is liable on 301 Macfarland v. Heim, 127 Mo. the covenants, since a mortgagor is 327, 29 S. W. 1030, 48 Am. St. Rep. to be regarded as legal owner as 629; Frye v. Hill, 14 Wash. 83, 43 against all persons other than the Pac. 1097; Moore v. Chase, 26 Misc. mortgagee. The court says that if 9, 55 N. Y. Supp. 621 (dictum). McMurphy v. Minot, 4 N. H. 251, And this rule applies, it has been de- supra, is inconsistent with this, it cided, in favor of the legatee of a is to that extent overruled. Trus- leasehold. Whitcomb v. Starkey, tees of Donations v. Streeter, 64 N. 63 N. H. 607, 4 Atl. 793. H. 106, 5 Atl. 845. See, also. Lord 305 See Hannen v. Bwalt, 18 Pa. 9. v. Ferguson, 9 N. H. 380, question- This mode of expression would be ing McMurphy v. Minot. more correct in those jurisdiction^ 307 Walton v. Cronly, 14 Wend, in which a conveyance is regarded (N. Y.) 63; Astor v. Hoyt, 5 Wend, as valid, without acceptance, until (N. Y.) 603; Levy v. Long Island repudiated -by the grantee. See 2 Brew. Co., 26 Misc. 410, 56 N. Y. Tiffany, Real Prop. § 407. Supp. 242; Prather v. Foote, 1 Disn. 360 Williams v. Bosanquet, 1 Brod. (Ohio) 434; McKee v. Angelrodt, 16 & B. 238; McMurphy v. Minot, 4 N. Mo. 283. In Tallman v. Bresler, 65 H. 251; Farmers' Bank v. Mutual Barb. 369, 56 N. Y. 635, it was de- Assur. Soc, 4 Leigh (Va.) 69; May- cided that one to whom the leasehold hew V. Hardesty, 8 Md. 479; Abra- was mortgaged to secure his pay as hams V. Tappe, 60 Md. 317. See contractor was not liable as a mort- Simonds v. Turner, 120 Mass. 328. gagee in possession merely because § 158 LIABILITIES UF ASSIGNEE. 977 decisions seem in effect to assert the view above referred to,^^* that one who takes possession without any assignment, is liable as an assignee. On the other hand it has, in two states, been ruled that a mortgagee, even though he takes possession, is not liable on the covenants.^^o jn accordance with the latter view are the decisions, rendered in jurisdictions where the legal title passes by a regular mortgage, that one claiming under an ecpii- table mortgage or lien, which does not involve a transfer of the legal title, is not liable on the covenants although he takes possession.s'fo Although the instrument of lease requires the lessor's consent to any assignment of the mortgage, an assignee by way of mort- gage, who is liable on the lessee's covenants by reason of the fact that the mortgage transfers the legal title, may, it has been decided, without the lessor's consent, free himself from liability by giving a release or discharge of the mortgage, the lessor's consent to the mortgage involving his consent to its discharge in the usual wayi^^i (g) Assignee by opsration of law. When an assignment takes place by operation of law, the assignee ordinarily becomes liable on the covenants running with the land, as if he claimed under a voluntary assignment. Thus, upon a sale of the lessee's lease- he entered to do work under his the mortgagee of a leasehold, pay- contract. In Astor v. Hoyt, 5 Wend. Ing rent to avoid forfeiture, may re- (N. Y.) 603, it is held that a mort- cover the amount of the payment gagee is in possession within the from the assignee of the leasehold, rule if he takes his mortgagor's share sos See ante, at note 355. of the fund awarded in condemna- aeo Johnson v. Sherman, 15 Cal. tion proceedings. 287, 76 Am. Dec. 481; Cargill v. A mortgagee of the leasehold is Thompson, 57 Minn. 534, 59 N. W. not in possession so as to be liable 638. on the lessee's covenant merely be- S70 Moore v. Greg, 2 Phil. Ch. 717; cause he is appointed by the mort- Merchants' Ins. Co. v. Mazange, 22 gagor as agent to collect rents and Ala. 168. make payments therefrom on the sn Jamieson v. London & Canad- mortgage, and acts accordingly, ian Loan & Agency Co., 30 Can. Sup. Ireland v. United States Mortg. & Ct. 14, afg. 26 Ont. App. 116. Trust Co., 72 App. Div. 95, 76 N. Y. . That the execution of a release Supp. 177; Id., 175 N. Y. 491, 67 of the mortgage relieves the mort- N. E. 1083. gagee, although the release is not In Dunlop v. James, 34 Misc. 708, recorded, see Horner v. Chaisty, 101 70 N. Y. Supp. 1019, it Is held that Md. 593, 61 Atl. 283. L. and Ten. 62. 978 TRANSFER OP LEASEHOLD. J15g hold interest under execution, and a conveyance thereof to the purchaser by the sheriff, the purchaser becomes liable upon the covenants.^''- Likewise, the purchaser under a foreclosure sale of the leasehold,^^^ or a purchaser at tax sale,^^-* may be made personally liable. (h) Executor or administrator as assignee. We have, in an- other place, considered the liability of the executor or ad- ministrator of a deceased lessee to satisfy a covenant of the lease, as any other contract liability on the part of the decedent, out of the assets of the decedent's estate. ^'^ In addition to this lia- bility, the executor or administrator may also, as being the assignee by operation of law of the leasehold interest, be sub- ject to a personal liability on covenants running with the land, as may any other assignee, by reason of his being in privity of estate with the landlord.'-^" It has been decided, however, that he cannot be thus held liable as assignee unless he enters and takes possession of the premises,"'^'' and the mere fact that he pays rent is not equivalent to taking possession for this pur- pose.^'^^ If he is sued as assignee for rent, it is no defense that he has fully administered the assets, since the profits of the land are presumed to be greater than the rent, and the executor ■■!7u Smith V. Brinker, 17 Mo. 148, Wis. 80. 8 N. W. 6; Pardee v. Stew- ol Am. Dec. 265; McMurphy v. ard, 37 Hiin (N. Y.) 259. Minot, 4 N. H. 251; Joslin v. Brvien, 374 Conrad v. Smith, 12 Phila. 50 N. J. Law, 39, 12 Atl. 186; Sutliff (Pa.) 306. V. Atwood, 15 Ohio St. 186; Snowden s's See ante, § 55 a. V. Memphis Park Ass'n, 75 Tenn. (7 a^o Hargrave's Case, 5 Coke, 31 a; Lea) 225. But the purchaser is not Lyddall v. Dunlapp, 1 Wils. (pt. 1) liable until a conveyance is made 4, 5; Tilney v. Norris, 1 Ld. Raym. to him. Thomas v. Connell, 5 Pa. 553; Wollaston v. Hakewill, 3 Man. 13; Bartlett v. Amberg, 92 111. App. & G. 297; Buckley v. Pirk, 1 Salk. 377. 317; In re Galloway, 21 Wend. (N. In Snowden v. Memphis Park Y.) 32, 34 Am. Dec. 209; Howard v. Ass'n, 75 Tenn. (7 Lea) 225, it is Heinerschit, 16 Hun (N. Y.) 177; asserted that the purchaser of the '^^""^"^ ''■ Walworth, 45 Ohio St. 169, 12 N E 1 leasehold at execution may disclaim „, ,' „ . ., „ ,, 3" Wollaston v. Hakewill, 3 Man. the interest in order to avoid lia- „ „ „„, „ , _ , „ n „i & G. 297; Kearsley v. Oxley, 2 Hurl. ^'^'*y- & C. 89(j; Howard v. Heinerschit, 18 =73 state V. Martin, 82 Tenn. (14 jjun (N. Y.) 177. Lea) 92, 52 Am. Rep. 167; Wittman 378 Rendall v. Andreae, 61 Law J. V. Milwaukee, L. S. & W. R. Co., 51 Q, B. 630, 633. § 158 LIABILITIES OF ASSIGNEE. 979 has no right to apply such profits otherwise than upon rent.^'^'' He may, however, as against a claim for rent, plead and show that the profits are not equal to the rent, and that he has no assets,^^'* though he remains liable to the extent of the profits which he could derive from the premises, using proper diligence, during the time he holds the premises as assignee.^^i Even after entry the executor may, it has been decided, rid himself of this liability on his testator's covenant for rent by relinquishing possession to the landlord, in case the value of the land is less than the rent, and there is a deficiency of assets.ss^ in the case of covenants to repair, however, it has been decided, the executor cannot plead in defense that the premises yield no profit, or a profit insufficient to satisfy the demand,383 nor can he, for that cause, relinquish possession to the landlord and thereby free himself from liability on such a covenant.^^* The ground of this distinction, made by the English cases, between the right of the executor to relieve himself, by relinquishing pos- session, from a liability to repair, and his right to so relieve him- self from a liability to pay rent, does not clearly appear.^sB The executor or administrator ca-n, like any other assignee,^*® free himself from liability as assignee for further breaches of covenant by an assignment over to another/*'^ He cannot, how- ever, thus relieve himself from liability as executor or adminis- trator to the extent of the assets in his hands, if his decedent was the original lessee.^®® (i) Heirs and legatees. An heir of the lessee may be liable 379 2 Williams, Executors (9th sss Tremeere v. Morison, 1 Bing. Ed.) 1636; Buckley v. Pirk, 1 Salk. N. C. 89; Sleap v. Newman, 12 C. 317. B. (N. S.,) 116; Tilney v. Norrls, 1 380 Billlnghurst v. Speerman, 1 Ld. Raym. 553. See Kendall v. An- Salk. 297 (debt) ; Reid v. Tenterden. dreae, 61 Law J. Q. B. 630. 4 Tyrw. 111. 3S4 sieap v. Newman, 12 C. B. (N. 381 Rubery v. Stevens, 4 Barn. & S.) 116. Adol. 241; In re Bowes, 37 Ch. Div. ssg Such a distinction is not recog- 128; Hopwood v. Whaley, 6 C. B. nized by Bayley, B., in Reid v. Ten- 744; Rendall v. Andreae, 61 Law J. terden, 4 Tyrw. 118, 120. Q. B. 630; Inches v. Dickinson, 84 sso See post, § 158 a (2) (n). Mass. (2 Allen) 71, 79 Am. Dec. 765. "s? Taylor v. Sh>im, 1 Bos. & P. 21; 382 2 Williams, Executors, 1639; Goodland v. Bwing, Cab. & E. 43. Wilkinson v. Cawood, 3 Anstr. 909; sss See ante, § 157 a (2), note Stephens V. Hotham, 1 Kay & J. 575 ; 312; post, •§ 181 c, note 694, Reid V. Tenterden, 4 Tyrw. 111. 980 TRANSFER OP LEASEHOLD. J 15g under the latter 's covenant, to the extent of lands which have descended to him, as upon any other obligation of his ancestor.^89 Apart from this liability, which would exist only in case of a deficiency of personal assets, he is, it seems clear, not liable as heir on the lessee's covenants, though these are such as to run with the land, and though the covenant in terms binds the heirs, since the leasehold interest, being personalty, does not pass to heirs. And this has been held to be so even though the heir entered into possession of the premises upon the ancestor's death.^^" The heir of the grantee in a conveyance in fee, how- ever, upon which a rent has been reserved, has been regarded as liable on a covenant to pay the rent, since the grantee's interest passes to him by descent.^^i And in the case of a lease pur autre vie, granted to one and his heirs, an heir might, in some jurisdic- tions, be liable on the covenants of the lease as special oecu- pant.332 One to whom a leasehold interest is bequeathed is no doubt liable on a covenant of the lease if he does not refuse the bequest. He may, it has been held, exempt himself from liability by such a refusal.^®* (j) Trustees in bankruptcy. Upon the bankruptcy of the ten- ant, assuming that this does not of itself terminate the ten- ancy ,^3* his leasehold interest may pass, with his other property, to the trustee in bankruptcy, subjecting the latter to liability, like any other assignee, upon the covenants of the lease.^^^ The trustee is not, however, bound to accept the leasehold interest, if he has reason to believe it will be more of a burden thail a benefit,^®^ and the cases are to the effect that the trustee incurs 389 Woerner, Administration, |§ H. 607, 4 Atl. 793; Howard v. Heiner- 574-576. schit, 16 Hun (N. Y.) 177 (semble). 390 Camp v. Scott, 47 Conn. 366. so* See ante, § 12 g (7). 391 Van Rensselaer v. Hays, 19 N. sss Ex parte Faxon, 1 Lowell, 404, Y. 68, 75 Am. Dec. 278; Van Rensse- Fed. Gas. No. 4,704; Summerville laer v. Read, 26 N. Y. 558; Tyler v. v. Kelllher, 144 Gal. 155, 77 Pac. 889; Heidorn, 46 Barb. (N. Y.) 439. White v. Griffing, 44 Gonn. 437. 392 See 2 Piatt, Leases, 381. As 396 in re Chambers, Calder & Co., to special occupancy, see 1 Tiffany, 98 Fed. 865; In re Ten Eyclc, 7 N. Real Prop. § 33. B. R. 26, Fed. Gas. No. 13,829; 393Whitcomb v. Starkey, 63 N. Griswold v. Morse, 59 N. H. 211. § 158 LIABILITIES OF SSSIGNEE. 981 no liability under the lease until he actually indicates his ac- ceptance, either by word or act.^*^ In case the lessor re-enters, under a proviso for re-entry in the lease, upon the bankruptcy of the tenant, the tenancy is neces- sarily terminated, and the bankrupt, or his trustee, is not liable for any rent which would otherwise have subsequently ac- crued.^'s Occasionally the lease provides that upon such re- entry the landlord may "relet" the premises, and assert a lia- bility against the lessee for any deficiency in the amount of rent so obtained, as compared with that originally reserved. Such a contingent liability, like that for the whole rent,^^® cannot be proved in the bankruptcy proceeding.*"** There are in England a number of decisions as to what facts are sufficient to show an acceptance of the leasehold by the trus- tee or assignee in bankruptcy. It has been there decided that acceptance is not necessarily shown by the fact that the trustee offers the leasehold for sale, in order to ascertain whether it has any value,*oi by his release of a subtenant from liability for rent,***^ by the payment of rent by him in order to prevent a dis- tress,*"^ or by keeping the furniture and goods of the bank- rupt upon the premises.*"* On the other hand, there are English 39T In re Lucius Hart Mfg. Co., 17 bankruptcy, and applied even In N. B. R. 459, Fed. Cas. No. 8,592; In cases where, the lease being under re Washburn, 11 N. B. R. 66, Fed. seal, there could be no legal action Cas. No. 17,211;' In re Mahler, 105 for use and occupation. Lowell, Fed. 428; In re Ives, 18 N. B. R. 28, -Bankruptcy, § 376. Fed. Cas. No. 7,116. sas Ex parte Houghton, 1 Lowell, But if the trustee, without accept- 554, Fed. Cas. No. 6,725. ing the leasehold, occupies the prem- 309 See post, § 182 1. ises for the purpose of carrying out 400 in re Croney, 8 Ben. 64, Fed. the trust, he is regarded as liable Cas. No. 3,411; Ex parte Lake, 2 for the value of such temporary use Lowell, 544, Fed. Cas. No. 7,991; In and occupation. Bray v. Cobb, 100 re Ells, 98 Fed. 967; In re Shaffer, Fed. 270; In re Grimes, 96 Fed. 529; 124 Fed. 111. In re Commercial Bulletin Co., 2 401 Turner v. Richardson, 7 East, Woods, 220, Fed. Cas. No. 3,060; In re 335. barter v. Warne, 1 Moody & M. Lynch, 7 Ben. 26, Fed. Cas. No. 8,634; ^^^g In re Hufnagel, 12 N. B. R. 554. Fed. ^^^ ^.^^ ^ ^ ^^^^^ Cas. No. b,837; In re Ives, 18 N. B. V, , „ R. 28. Fed. Cas. No. 7,116. Tne im- "= Wheeler v. Bramah, 3 Camp, position of such liability upon the 3*0: Goodwin v. Noble, 8 El. & Bl. trustee is said to be an equitable 587. practice adopted by the courts of ^o* Goodwin v. Noble, 8 El. & Bl. 9S2 TRANSFER OF LEASEHOLD. J ]58 decisions tu the effect that such acceptance is shown by the- action of the trustee in taking possession of the premises, with- oiit any disclaimer of a purpose to take possession in such capac- ity,*"-'' by his assumption of the management of the farm con- ducted by the bankrupt upon the premises,*"^ by his use of the premises in such a way as to injure them,*"" or by his actual sale of the leasehold.^os it is said that "no general rule can be laid down as to the effect of remaining in possession of the demised premises, or paying rent for them, or doing any other act con- sistent with the supposition that the assignees have not elected to" take the lease as part of the property of the bankrupt for the benefit of the creditors," but that "each case must be determined by the peculiar circumstances belonging to it."*"* If the trustee refuses to accept the leasehold interest, it re- mains in the bankrupt. *i" As before stated, a general covenant or condition against as- eignment does not applj^ to such an assignment of the leasehold to the trustee by operation of law, nor does it preclude a reas- signment by the bankrupt in the settlement of the estate.*^* (k) Assignees for creditors. In ease of an assignment for the benefit of creditors, the assignee has, by the American deci- sions, the same right which a bankrupt's trustee has, to refuse to accept the leasehold, if this will involve a greater burden than benefit.*' - And he has, it is said, a reasonable time in which to determine Avh ether he will accept it.*i3 In England a different view is taken, to the effect that -if the assignee accepts the con- veyance, he cannot refuse to accept any leasehold interests included therein."-' It has l>een said, indeed, in this country, 587. See In re Yeaton, 1 Lowell, 420, Lester v. Hardesty, 29 Md. 50; cisions are fully stated. Nicliel Y. Brown, 75 Md. 172, 23 Atl. *^» Harley v. King, 2 Cromp. M. & 736. But ordinarily a failure to re- R. 18; Consolidated Coal Co. v. cord would not affect the validity Peers, 150 111. 344, 37 N. E. 937 (sem- of the reassignment. ble) ; Quackenboss v. Clarke, 12 «oCity of Baltimore v. Peat, 93 Wend. (N. Y.) 55; State v. Mar- Md. 696, 50 Atl. 152, 698. tin, 82 Tenn. (14 Lea) 92, 52 Am. «7 Bonetti v. Treat, 91 Cal. 223, Rep. 167 (semble) ; McLean v. Cald- 27 Pac. 612, 14 L. R. A, 151; Mc- well, 107 Tenn. 138, 64 S. W. 16. .L. and Ten. G3. 994 TRANSFER OF LBASBHQL,D. ^158 if he delays to institute his action on the covenant till after the reassignment.**" b. To assignor. The liabilities of an assign^ee of the leasehold as regards his assignor are ordinarily determined by the agree- ment between them, as in the case of the transfer of any interest in land, the paymerft of the agreed purchase price being the chief consideration in this connection. The assignor has, how- ever, if he is the original lessee, apart from any express agree- ment, certain rights as to the payment of the rent, or performance of other covenants, by the assignee. "While, as has been seen, both the lessee and the lessee's as- signee are liable on the former's covenants, the former by privity of contract, and the latter by privity of estate, the liability of the assignee is, as between him and the lessee, regarded as pri- mary, and the lessee is, as between them, a surety only for the payment of the rent and the performance of the other covenants. Consequently the lessee, the surety, on paying the rent or dis- charging any other covenant, may recover from the assignee the amount of his expenditure in this regard,*"! and this he may do *80Hintze v. Thomas, 7 Md. 346; 4si Burnett v. Lynch, 5 Barn. & C. Mayhew v. Hardesty, 8 Md. 479; 589; Humble v. Langston, 7 Mees. & Lester v. Hardesty, 29 Md. 50; Don- W. 530; WolYeridge v. Steward, 1 elson V. Polk, 64 Md. 501, 2 Atl. 824; Cromp. & M. 659; Farrington v, Reid V. Weissner & Sons Brew. Co., Kimball, 126 Mass. 313, 30 Am. Rep. 88 Md. 234, 40 Atl. 877. The earlier 680; Mason v. Smith, 131 Mass. 510; of these decisions is based in part on Collins v. Pratt, 1^1 Mass. 345, 63 Fagg V. Dobie, 3 Younge C. Oh. 96, N. B. 946; Trabue v. McAdams, 71 decided a few years later than Har- Ky. (8 Bush) 74; Crowley v. Gorm- ley V. King, 2 Cromp. M. & R. 18, ley, 59 App. Div. 256, 69 N. Y. Supp. supra, but in which the latter case 576; McKeon v. Wendelken, 25 Misc. was not referred to. In Fagg v. 711, 55 N. Y. Supp. 626; McHenry v. Dobie, Baron Alderson said that Carson, 41 Ohio St. 212; Bender v. "equity will give relief as to ante- George, 92 Pa. 36. See Brinkley v. cedent rent due, or antecedent Hambleton, 67 Md. 169, 8 Atl. 904. breaches of covenant committed at In Frye v. Hill, 14 Wash. 83, 43 the time the party was liable for Pac. 10'97, It is decided that one to them, although by his subsequent whom the leasehold is assigned as assignment the remedy at law is collateral security (a mortgagee gone." This statement, however, semble) can, in an equitable pro- not called for by the case, cannot ceeding, assert the liability of a sub- weigh against the explicit decision, sequent absolute assignee from the after full argument, rendered in lessor, under such assignee's agree- Harley v. King. ment to pay the rent. § 158 LIABILITIES OF ^SSSIGNEE. 99i even after a reassignment by the assignee to another,*^^ provided the breach of covenant occurred before such reassignment, that is, while the assignee had title to the leasehold.'**^ The liability thus to indemnify the lessee extends even to a remote assignee, that is, an assignee of an assignee, each successive assignee in effect undertaking to indemnify the original lessee against breaches of covenant occurring during such assignee's tenancy.*** In order that the lessee may assert such a liability against the assignee, it is necessary that the lessee have liquidated the obligation imposed by the covenant, and he cannot assert it, merely because the assignee has broken the covenant.**^ Nor can he claim reimbursement for a sum paid by him for a release from liabilities under his covenants not yet acerued.^^s The as- signor paying the rent has no lien for his indemnity upon the leasehold, which he may enforce against it in the hands of a subsequent assignee.*®? It has been decided that the liability of the assignee in such case may be enforced by an action of case, as well as by assump- sit, on the ground that the right to maintain that action for the nonfulfillment of a common-law duty is not affected by the fact that the law implies a promise for its fulfillment.**® 482 Burnett v. Lynch, 5 Barn. & C. *85 Parrlngton v. Kimball, 126 589; Moule v. Garrett, L. R. 5 Exch. Mass. 313, 30 Am. Rep. 680. 132, L. R. 7 Exch. 101. In Darmstaetter v. Hoffman, 120 483 Wolveridge v. Steward,- 1 Mich. 48, 78 N. W. 1014, while this Cromp. & M. 644; Crouch v. Treg- is recognized as the general rule, it onning, L. R. 7 Exch. 88; Mason v. is decided that the fact that the Smith, 131 Mass. 510; Brinkley v. assignment was in breach of a stlpu- Hambleton, 67 Md. 169, 8 Atl. 904; lation of the lease against assign- Walker V. Physick, 5 Pa. 193. In City ment changes the rule, and entitles of Baltimore v. Peat, 93 Md. 696, 50 the lessee to recover the rent from Atl. 152, 698, it was held that the the assignee though he has not him- reassignment took place at the time self paid it. No reason is given In of the sale of the assignee's inter- the opinion for thus rewarding the est by judicial decree, for this pur- lessee, as it were, for his breach of pose, though no deed was executed *>»« stipulation of the lease ,,,, „ ,^ V U4. V 4..,« «« McHenry V. Carson, 41 Ohio St. till after suit was brought by the lessee for indemnity. ^^^^ ^^ j^^^^^jj 39 ch. Div. 254. «»* Moule V. Garrett, L. R. 5 Exch. ^^ Burnett v. Lynch. 5 Barn. & C. 132, L. R. 7 Exch. 101; Farrington ggg^ referred to in Hare, Contracts, V. Kimball, 126 Mass. 313, 30 Am. 153, and followed in Ashford v. Rep. 680. Hack, 6 U. C. Q. B. 541. 996 TRANSFER OF LEASEHOLD. ' § 15J< The right of one of two joint lessees, who has assigned his undivided interest in the premises to the other, to assert a claim for reimbursement against the other, as regards any sums which he has been compelled to pay under his covenant, has been ju- dicially recognized,*^^* and it would seem that the same princi- ple would apply in such case as in the case of an assignment by a sole lessee to a stranger.***'' Usually in England, and in this country occasionally, the as- signee, by express provision, agrees to indemnify the lessee against liability by reason of any subsequent breach of covenants, and under a covenant thus broadly expressed the lessee may recover against the assignee even on account of breaches in- curred after a reassignment by the assignee.*** And he may so recover upon the mere breach of the covenant by the assignee without having himself made any expenditure on account there- of, if the covenant is absolute in terms and not merely one for indemnity.**" The covenant may even be sufficiently broad to fover breaches occurring before the assignment.**^ tssa McHenry v. Carson, 41 Ohio 286. But the fact that the assign- St. 212. ment is in terms "subject to pay- 488b In Holman v. De Lin-River ment of the rent and performance of Finley Co., 30 Or. 428, 47 Pac. 708, the covenants" does not create a cov- a lessee who had assigned to his co- enant, thus rendering the assignee lessee brought suit against the lat- liable after reassignment. Wolve- ler and the latter's assignees to ridge v. Steward, 1 Cromp. & M. 659; recover the amount of rent due, and and a like decision was made where to become due, this having been a transfer of land, which was sub- paid by him to the landlord. He ject to a perpetual rent charge, was had taken a transfer from the land- in terms "under and subject to the lord of the latter's reversionary in- payment of the said rent as the terest to protect himself, and sued same shall accrue forever." Walker in use and occupation, and the coijrt v. Physick, 5 Pa. 193. held that the obligation to pay rent ^oo Jackson v. Port, 17 Johns. (N. was discharged by his payment of Y.) 479; Smart v. Smart, 24 Hun the rent, and that he could not re- (N. Y.) 127. cover. No suggestion is made that loi Gooch v. Clutterbuck [1899] 2 he might, in a proper form of action, Q. B. 148, where a covenant by the have recovered against each assignee assignee "to perform the lessee's cov- to the amount of the rent which ac- enants and keep him indemnified crued previous to a reassignment by from the payment and performance the latter, but it is submitted that thereof" was held to cover previous he might have done so. breaches of a covenant to repair. ♦ssCrossfield v. Morrison, 7 C. B. § 158 LIABILITIES OF ASSIGiVEE. 997 A covenant by the assignee to perform and observe the cove- nants of the lease is, it has been held, a mere covenant of in- demnity, and consequently gives to the lessee no right to enforce by injunction the assignee's performance of negative covenants contained in the instrument of lease.*"^ If, in the case of successive assignments of the leasehold, each assignee covenants to indemnify his assignor, the first assignee may, upon indemnifying the lessee, or upon recovery against liim by the lessee for such indemnity, recover the amount of such indemnity against the second assignee.*®^ Under a covenant of indemnity the lessee cannot, it has been held, recover from the assignee a sum which he has been com- pelled to pay to the lessor, on account of a breach of covenant committed in respect of premises used by the assignee, with his knowledge, for an immoral purpose.*®^ Under a covenant of indemnity the lessee may recover, it has been decided, not only any sum which he has been compelled to pay the lessor on account of the assignee's breach, but also all costs which he may have incurred in reasonably, though unsuc- cessfully, defending an action by the lessor.''*''' But when the ex- tent of the liability to the lessor for breach of covenant has al- ready been determined, in an action brought by the latter against the lessee, an intermediate assignee should pay the amount thereof without suit, and cannot recover against the ultimate assignee the cost of defending an action for indemnity brought against him by the lessee.*®*' The lessee may, it has been held, recover substantial, and not merely nominal, damages against the assignee, in respect of a breach of a covenant to repair, if the premises are found to be dilapidated at a date subsequent to a reassignment by the assignee, although there is no direct evi- dence that the breach took place in his time.**'' The right of the lessee under an express contract of indemnity to recover the amount of rent paid by him is not affected by the fact that, •tos Harris v. Boots, Cash Chem- ^ob Howard v. Lovegrove, L. R. 6 Ists [1904] 2 Ch. 376. Bxch. 43; Spence v. Hector, 24 U. C. +!i3'Cousins V. Phillips, 3 Hurl. & Q. B. 277. But not interest. Id. C. 892; Smith v. Howell, 6 Exch. loo Smith v. Howell, 6 Exch. 730. 730. inT Smith v. Peat, 9 Exch. 561. 49* Smith V. White, L. R. 1 Bq. 626. 998 TRANSFEJR OF LEASEHOLD. S 159 since such payment by him, the assignee has surrendered the leasehold.*'-** § 159. Bights of assignor. The rights of the assignor as against the assignee have already been considered in discussing the liabilities of the latter.*^^ j^ remains to consider the rights of the assignor after the assign- ment as against the original lessor or the latter 's transferee. As an assignee succeeds to the rights based on privity of es- tate, and also to those based on privity of contract, that is, on the express covenants of the lessor, ^^o and he alone is interested in the assertion of such rights, it vs^ould seem to foUovs^ that he alone, and not the assignor, would have the right to assert the lessor's obligations, in reference to breaches thereof occurring after the assignment. The question has, however, it seems, never been decided.""! § 160. Eights of assignee. The rights of an assignee as against the assignor have previously been considered in connection with the liabilities of an as- signor.s<'2-504 n remains to consider his rights as against the original lessor. An assignee necessarily becomes vested with any rights arising from privity of estate, that is, based on the relation of land- lord and tenant, and also the benefit of such of the lessor's cov- enants as touch and concern the land will pass to him.^"^ The «8 Brown v. Lennox, 22 Ont. App. Wood, 189 III. 352, 59 N. E. 619, 442. where it was held that after assign- 499 See ante, § 158 b. ing the lessee could sue for a breach 500 See post, note 505. by the lessor whch was previous to 501 See Blackmore v. 'Boardman, the assignment. See, also, Rawle 28 Mo. 420, as supporting this view. Covenants of Title, § 215, as to the and also the authorties cited ante, inability of one who has assigned to § 148, note 66, to the effect that a sue on a covenant for title unless lessor cannot sue on a covenant injured by the breach. after assigning his interest. Mr. 502-504 See ante, § 157 b. Sims (Covenants which Run with sos palmer v. Edwards, 1 Doug, the Land, 92) expresses a different 186, note; McClenahan v. Gwynn, 3 view. There is also an implication Munf. (Va.) 556; Cleveland, C, C. in accordance with the text in Cleve- & St L. R. Co. v. Wood, 189 111. 352, land, C, C. & St. L. R. Co. v. 59 N. E. 619; Bac. Abr., Covenant I 161 LIABILITIES OF SUBLESSOR. 999 right of the lessee, or of his assignee, to enforce liability for breaches occurring during the period of his ownership of the leasehold, is obviously not affected by the fact that he has, since such breaches, assigned the leasehold to another, though he may divest himself of such right of action by assigning the right itself. He has, however, no right of action for breaches of such cov- enants occurring before the assignment to him, unless this right is expressly assigned.^"^' ^"^ And after his reassignment of the lease- hold interest, he obviously cannot sue on account of subsequent breaches. It has been decided that the fact that an assignment is invalid under the statute of frauds cannot be asserted by the lessor in defense to an action by the assignee on a covenant of the lease, the instrument of lease having been delivered to the latter, together with possession of the premises.^"* This appears to accord with occasional decisions, before referred to,^**" that the invalidity of the assignment cannot be asserted by the assignee in defense to an action by the lessor on a covenant. It has, however, been decided in England ^lo that a mere equitable as- signee, though in possession, cannot sue on a covenant. § 161. Liabilities of sublessor, a. To landlord. A sublease does not, as does an assignment (e 5). See, also, ante, §§ 79 e, 87 ceived, merely an application of the d (4); 87 e (4); post, §§ 230, 267, doctrine, since apparently exploded 271 h. (ante, § 149 b [8], notes 173-178), In Portmore v. Bunn, 1 Barn. & that when the lack of title appears C. 694, .3 Dowl. & R. 145, it was on the face of the instrument, there held that an assignee of a lease of is no interest with which the cove- a right to use water passing through nant can run. a particular channel was not liable soe, sot Shelton v. Codman, 57 Mass- in covenant to the lessor for the an- (3 Gush.) 318; "Woodburn v. Ren- nual sum agreed to be paid there- shaw, 32 Mo. 197. And see the deci- for, it appearing from the instrument sions, in reference to the analogous of lease itself that the lessor did not case of the rights of a transferee of have the ftower to make the lease, and the reversion, ante, § 149 b (9). that the lessee consequently had no »o8 Cleveland, C, C. £ St. L. R. Co. Interest with which the liability on v. "Wood, 189 111. 352, 59 N. E. 619. the covenant could run under the bob See ante, note 356. statute of 32 Hen. 8, e. 34. The 6io Friary, Holroyd & Healey's grounds of the decision are stated Breweries v. Singleton [1899] 1 Ch. but obscurely, but it is, it is con- 86. 1000 THANSFER OF L,BASEHOLD. § 162 consented to by the lessor,^" relieve the lessee making it from liabilities based on privity of estate, since the sublessor still re- mains the tenant of the lessor. Nor is an assignee relieved from liability for subsequent breaches of covenant by the making by him of a sublease, as he is by the making of a reassignment, since lie still remains in privity with the landlord. As a lessee is not relieved from his contractual liabilities by his assignment to another, even though the latter becomes also liable, so a fortiori, he is not relieved from such liabilities by the fact that he makes a sublease. ''^i" The continuance of the lessee's liability on his covenant to pay rent is not affected even by the fact that the sublessee agrees to pay rent to the original landlord.512 The lessee is, hovsrever, relieved from liability if the sublessee is substituted as tenaiit bj'^ a new demise, effectuat- ing a surrender of the former term.^i^ b. To sublessee. Upon a sublease, it seems, the same cov- enants are to be implied as against the sublessor from the use of certain words of demise, or from the mere creation of the relation of tenancy, as are to be implied as against any other lessor.^i* Upon the sublessor's express covenants in his favor the sublessee obviously has a right of action, as has his assignee, if they are such as run with the land. § 162. Liabilities of sublessee. The sublessee is not in privitj'' of contract with the head land- lord, since there are no contractual relations between them, and he is not in privity of estate with him, since there is no relation of tenancy between them and he merely holds possession for the lessee. Consequently, he is not liable to the landlord on the 611 See ante, § 158 a (1). ment, it was held that if a tenant 511a Kenyon v. Young, 48 Neb. 890, induced one to take a sublease from 67 N. W. 885. him by representing that he had 512 Bless V. Jenkins, 129 Mo. G47, power to make it, and he subse- 31 S. W. 938. So in the case of the quently induced the head landlord assumption by the sublessee of a to oust the sublessee owing to the covenant to pay taxes. Hendrix v. lack of the landlord's consent to the Dickson, 69 Mo. App. 197. sublease, the sublessee had a right 51S See post, § 190 d. of action against him. Calvert v. 51* See ante, §§ 79 a, 80, 81. Hobbs, 107 Mo. App. 7, 80 S. W. 681. In one case, without reference to The theory of the decision is not any covenant for title or quiet enjoy- stated. § 162 LIABILITIES OF SUBLB3SSEE. JOOI covenants of the original lease.f'i-' nor on the covenants of the sublease,"*!" nor can there be any recovery against him by the head landlord in use and occupation,*!^ since for this a relation of tenancy is necessary .^is Though the subtenant is not personally liable to the lessor, the making of the sublease does not affect any rights which the lessor might otherwise have in regard to the premises, or chat- tels thereon. Consequently, the subtenant has no right to retain possession beyond the term named in the head lease, although that named in the sublease has not expired,^'!^ and such is the rase though the expiration of the original term is by force of u special limitation.52o go the subtenant may be dispossessed, as might the tenant under the original lease, in case of the breach of a condition in such lease.^^i Likewise the chattels of the subtenant may be subject to a statutory lien,822 or to a distress for rent,^^^ in favor of the head landlord. Occasionally a covenant as to the use of the premises may be such as to cover the use thereof to be made by the subtenant, .so that a use by him in violation thereof will be a ground for the recovery of damages from the head lessee or tenant, or for the forfeiture of the estate of the latter.^^* Furthermore, under the doctrine of the English cases and that of some states, that one taking property with notice of an existing restriction upon its use is bound thereby, he may be restrained by injunction from ='5Holford V. Hatch, 1 Doug. 183; the rent was expressly made pay- Field V. Mills, 33 N. J. Law, 254; able to the orignal lessor. A differ- McFarlan v. Watson, 3 N. Y. (3 ent view might be taken In jurls- Comst.) 286; Crowe v. Riley, 63 dictions where a third party is al- Ohio St. 1, 57 N. E. 956; Dunlap v. lowed to sue on a contract. Com- Bullard, 131 Mass. 161; Haley v. pare Heard v. Lockett, 20 Tex. 162. Boston Belting Co., 140 Mass. 73, sit Krider v. Ramsay, 79 N. C. 354. 2 N. E. 785; Mayhew v. Hardesty, sis See post, § 302. 8 Md. 479 ; Harvey v. McGrew, 44 5i» See Besley v. Besley, 9 Ch. Div. Tex. 412. 103; Clayton v. Leech, 41 Ch. Div. =16 Derby v. Taylor, 1 East, 503; 103. Ashley V. Young, 79 Miss. 129, 29 320 Eten v. Luyster, 60 N. Y. 252 ;« So. 822; Martin v. O'Connor, 43 Bove v. Coppola, 45 Misc. 636, 91 Barb. (N. Y.) 514. In Derby v. Tay- N. Y. Supp. 8. lor, 1 East, 502, it was decided 521 See post, § 194 h, note 188. that the original lessor could not 522 See post, § 319 d (5). sue the sublessee on a covenant of 52s See post, chapter XXXII. the sublease to pay rent, although s24 gee ante, § 123 j, notes 93-95. 1002 TRANSFER OF LEASEHOLD. § 16^ using the property in violation of restrictions contained in the head lease, or in any other instrument in the sublessor's claim of title.^25 It lias also been decided that an injunction will issue at the suit of the head landlord against the subtenant to restrain wastc^^** That the subtenant is charged with notice of any conditions or restrictions contained in the head lease is gen- erally recognized.5'^'' § 163. Bights of sublessor. The rights of one who makes a sublease, as against his les- sor, or the transferee of his lessor, are the same as if he had not made the sublease. The making of a sublease by a tenant under a lease in no way changes the relations previously existing be- tween the tenant and his landlord. The rights of the sublessor as against the sublessee are de- termined by the provisions of the sublease, to the same extent as in the case of a lease by one not holding under a lease from another. His rights by reason of the sublessee's breach of his contract to repair, in connection with the sublessor's own obli- gations in this regard to the head landlord, have been previously stated.528 11 is to be observed that the sublandlord has no right to enter upon the premises to make repairs, even though the sub- tenant has agreed to make them and has failed so to do, and even though the former's estate is liable to forfeiture by reason of the absence of repairs, and an injunction might issue to re- strain his entry for this purpose.^^s Jq view of the possibility that the sublessor's estate may be forfeited by the sublessee's failure to make repairs or by his mode of using the premises, it is recognized as expedient for the sublessor to require the sub- lessee to agree to indemnify him against any loss which he may "525 See ante, § 123 j, notes 97-98 b. 63 Ohio St. 1, 57 N. E. 956; Shan- ozoFarrant v. Lovel, 3 Atk. 723. non v. Grlndstaff, 11 Wash. 536, 40 See Peer v. Wadsworth, 67 N. J. Eq. Pac. 123; Missouri, K. & T. R. Co. 191, 58 Atl. 379. v. Keahey, 37 Tex. Civ. App. 33a, 83 627 Dunn V. Barton, 16 Fla. 765; S. W. 1102; Clements v. Welles, L. Blachford v. Frenzer, 44 Neb. 829, R. 1 Eq. 200. 62 N. W. 1101; Stees v. Kranz, 32 028 See ante, § il6 h, at notes 998 Minn. 313, 20 N. W. 241; Foster v. a-998 e. Reid, 78 Iowa, 205, 42 N. W. 649, 16r 629 stocker v. Planet Bldg. Soc, Am. St. Rep. 437; Crowe v. Riley, 27 Wkly. Rep. 877. § 164 RIGHTS OF SUBLESSEE. 1003 thus cause the latter by noncompliance with the stipulations of the head lease.^^oa § 164. Rights of sublessee. A sublessed, since he is in no privity of contract or estate with the original lessor, has, apart from statute, no rights which he can assert as against himisso except the right to the possession of the land. In two states there are statutes which undertake to give to a sublessee a personal right of action against the head landlord as upon a covenant.^^i The rights of the sublessee, or of his assignee, as against the sub- lessor or his assignee, are ordinarily determined by the terms of the sublease, as in the case of a lease by one not holding under a lease from another. One right which a sublessee has as against his sublessor, a character of right which can exist only in favor of a sublessee or his assignee, is that of paying, in order to pro- tect his possession, any claim against the land for rent under the head lease, and to assert such payment as a pro tanto payment of the rent under the sublease. The decisions with reference to this matter are subsequently considered.^^^ It has been decided that if separate portions of the premises are subleased to different persons, and one of the sublessees, under threat of distress by the head landlord, pays the entire rent reserved upon the head lease, he cannot recover a portion of such payment from the other sublessee as money paid to his szsaSee Wheeler v. Earle, 59 Mass. 1901, § 7098), and Kansas (Gen. St. (5 Gush.) 31, 51 Am. Dec. 41. It 1905, § 4065), it is provided that is also desirable for the sublessor sublessees shall have the same rem- to reserve a right to enter to make edy upon "the original covenant" repairs on the sublessee's failure against the head landlord as they to make them. See article 119 Law might have had against their Im- T. 285. mediate lessor. What is meant by EsoGanson v. Tifft, 71 N. Y. 48. the original covenant does not ap- That he cannot assert any rights pear. If it means a covenant of upon a covenant of the head lease as the head lease, the sublessee could against the head landlord, see South have had no right of action thereon of England Dairies v. Baker [1906] against his immediate lessor. 2 Ch. 631. 532 See post, § 177 e. 031 In Indiana (Burns' Ann. St. 1004 TRANSFER OF LEASEHOLD. §164 iise.^^^ And, similarly, it was held that when one part of the ilemised land is assigned, and the balance subleased, the assignee t-annot demand contribution by the subtenant.^^* It has been decided that the assignees of the original sublessees need not join in suing upon a covenant by the sublessor to en- deavor to obtain a renewal of a head lease to him, since such as- signees are tenants in common, having separate and distinct in- terests in the term, and the damages are, in their nature, sever- able, and may well be apportioned, according to the value of the share of eacb.^'"'' "3 Hunter v. Hunt, 1 C. B. 300. ■•"■-• Sim})son v. Clayton, 4 Bing. 554 Johnson v. Wild, 44 Ch. Div. N. C. 781. 146. CHAPTER XVI. RENT. 5 165. The nature o£ rent. 16€. Future rent, not present debt. 167. Classes of rent. 168. What may be reserved as rent. 169. Payments which are not properly rent. a. Sums payable under lease of incorporeal thing. b. Sums payable for enjoyment of license. c. Sums payable under bailment of chattels. d. Sums payable under lease but not for use of the land. e. Sums payable (or furnishing of power. f. Sums payable on sale of land. g. Cash bonus or premium paid by lessee, h. Taxes paid by lessee. 170. The reservation of rent. 171. Covenants for the payment of rent. a. Express covenants. b. Implied covenants. 172. Time at which rent is due. * a. Usually at end of rent period. b. Specification of rent days. c. Ascertainment with reference to calendar year. d. At end of term. e. Rent payable in advance. f. Option as to time of payment. g. Acceleration of rent. h. Time of day for payment, i. Crop rent. j. Rent falling due on holiday. 17?,. Amount of the rent. a. Must he certain or capable of ascertaiument. b. May be fluctuating. c. Construction of reservation as to amouni. d. Determination by appraisement. e. Additional or penal rent. 1006 KENT. f. Change of amount by subsequent agreement. (1) Reduction of rent. (2) Increase of rent. g. Reduction apart from agreement. h. Oral evidence as to amount of rent. § 174. Interest on rent. 175. Apportionment as to amount. a. General considerations. b. On severance of reversion. c. On severance of leasehold. d. On partial extinction or suspension of rent. e. In action on covenant for rent. f. Of rent charge. 176. Apportionment as to time. a. Generally not allowable. b. Statutory provisions for apportionment. c. Express stipulations for apportionment. 177. Payment of rent. a. Presumptions. b. Giving note, bill, or bond for amount, c. Payment before rent due. d. Payment to person not entitled. e. Payment by discharge of landlord's obligations. f. Payment in commodities or labor. g. Payment by means of repairs. h. Excusing payment of rent by way of gift. i. Application of payments on rent. j. Pleading payment. 178. Tender of rent. a. Effect of tender. b. Time of tender. c. Place of tender. d. Person to whom tender to be made. e. Tender in landlord's absence. f. Tender must be unconditional. 179. Recovery of money paid as rent. 180. Persons entitled to the rent. a. Lessors. b. On transfer of the reversion. (1) Rent ordinarily passes. (2) Effect of partial transfer. • (3) Lease of land and chattels. (4) Notice of transfer. (5) Rent already due. (6) Change of title on rent day. RENT. 1007 c. Severance of rent from reversion. (1) Retention of rent on transfer of reversion. (2) Transfer of rent without reversion. (3) Rights of subsequent transferee of reversion. (4) Rights of transferee of rent notes. d. Mortgagors and mortgagees. e. Purchasers at judicial or execution sale. f. Trustees In bankruptcy. g. On death of person entitled. h. Persons not in privity with lessor. § 181. Persons liable for the rent. a. Lessees. b. Assignees of the leasehold. c. Executors and administrators. d. Subtenants. e. Principals and agents. f. Sureties and guarantors. (1) Nature of contract. (2) Form and validity of contract. (3) Evidence of relation. (4) Bxpiratiou of liability. (5) Discharge of liability. (6) Assignment of right of action. (7) Remedies. 182. Defenses available to tenant — Suspension or extinguishment ot rent. a. Exclusion of lessee from possession. (1) By one having paramount title. (2) By stranger without right. (3) By lessor. b. Failure of lessee to take possession. c. Invalidity of lease. d. Defect in lessor's title. e. Eviction of tenant, p, W ^ 'T (1) By landlord. (a) Total eviction. (b) Partial eviction. (2) By paramount title. (a) Total eviction. (b) Partial eviction. f. Merger. g. Surrender. h. Abandonment by tenant. i. Release. j. Forfeiture of leasehold interest. k. Taking under eminent domain. 1. Discharge in bankruptcy. 1008 RENT. m. Destruction of or injury to premises by unforeseen casualtj-. (1) Destruction of building on land leased. (2) Destruction of entire premises. (3) Destruction of building before commencement nf term. (4) Cliange of possession after destruction. (5) Flooding or inundation of premises. (6) Express stipulations extinguishing or suspendine rent. (a) General considerations. (b) Character of injury. (c) Cause of injury. (d) Effect as terminating tenancy. (e) Revival of liability for rent. (f) Possession pending restoration. (g) Rent payable in advance. (7) Stipulations as to repair and restoration. (8) Statutes relieving from liability for rent. (a) The provisions of the statutes. (b) Injuries caused by tenant. (c) Extent of relief from rent. (d) Exclusion of statute by stipulations of lease. (e) Premises made "untenantable." (f) Relinquishment of possession by tenant. (g) Termination of tenancy, n. Untenantable condition of premises. (1) At common law. (2) Under statutes. (3) Specific conditions. o. Unfitness of premises for particular purpose. p. Lack of repair. q. Making of repairs, r. Breach of covenant or other contract by landlord. (1) Dependent and independent covenants. (2) Contract to make repairs or improvements. (3) Contract to furnish heat, power, or other facilities. (4) Miscellaneous contracts and covenants. s. War and military occupation. t. Particular stipulations as to rent § 183. Right to payment of rent as against levy under execution. a. Statutory provisions. b. The tenancy. c. The execution or other process. d. Rent due or to become due. e. Goods and chattels levied on. f. Notice to the sheriff. g. The duty and liability of the sheriff. § 165 NATURE OF RENT. 1009 § 165. The nature of rent. Kent is not a necessary incident of the relation of landlord and tenant, that is, a demise is perfectly valid although no rent is reserved.! The cases, howCA^er, of a demise without any reser- vation of rent are but few, and the rights and liabilities of the parties in reference to rent constitute an important par,t of the law of landlord and tenant. Kent, for the purpose of the law of landlord and tenant, may be defined as a tribute or return of a certain amount, which is regarded as issuing out of land, as part of its actual or pos- sible profits, and is payable by one having an estate in the land, as a compensation for his use, possession and enjoyment of the land. This definition of rent, however, like other suggested defi- nitions thereof, does not bring into view the fact that the word "rent" is used in at least four distinct senses. Firstly, it is used in a general, abstract sense, to describe any and every tribute which may be thus payable by any person having an estate in land, as when we say that rent is usually payable in money, or rent is collectible by distress, or rent must be certain in amount, and, thus used, it applies either to one payment of tribute to be made, one "installment of rent," or to a succession of such payments. The word, when used in this sense, is ordinarily found without any article preceding it. Secondly, the word "rent" is used in a specific, concrete sense, to describe a particu- lar payment of tribute, to be made by a tenant of particular land, or a succession of such payments. For instance, we may say that the rent due by a tenant of certain land is overdue, meaning thereby either that one installment of rent is overdue, or that a iCo. Litt. 143 a; Knight's Case, Getchell, 59 N. H. 281; Hunt v. Com- 5 Coke, 55 a; Lillard v. Kentucky stock, 15 Wend. (N. Y.) 665; Peer Distilleries & Warehouse Co., 67 C. C. v. O'Leary, 8 Misc. 360, 28 N. Y. A.. 74, 134 Fed. 168; Amter v. Con- Supp. 687; Mitchell v. Com., 37 Pa. Ion, 22 Colo. 150,43 Pac. 1002; Osborne 187; Floyd v. Floyd, 4 Rich. Law (S. V. Humphrey, 7 Conn. 349; Sherwin C.) 23; Allen v. Koepsel. 77 Tex. 505, V. Lasher, 9 111. App. (9 Bradw.) 14 S. W. 151; Hanks v. Price, 32 227; Hooton v. Holt, 139 Mass. 54, Grat. (Va.) 107. Contrary state- 29 N. E. 221; McKissack v. Bulling- ments, as in Slmpkins v. Rogers, 15 ton, 37 Miss. (8 George) 535; Alex- III. 397, and Shaw v. Hill, 79 Mich, ander v. Gardner, 29 Ky. Law Rep. 86, 44 N. W. 422, are unquestionably 958, 96 S. W. 818; Ravings Bank v. erroneous. L. and Ten. 14. lOlU RENT. § 166 number of installments are overdue. And so we speak of an action having been brought "for the rent," meaning thereby an action for one installment or several installments. The word "rent," when used in this specific, concrete sense, is ordinarily preceded by the definite article. Thirdly, the word is used in a specific, concrete sense to describe the right which a particular person or persons may have to a succession of payments by the tenant or tenants of a particular piece of land, as when we refer to a man as having a rent or a ground rent, or say that the rent upon (issuing from) a certain piece of land belongs to a named indi- vidual. The word "rent," when used iu this sense, is used with either the definite or indefinite article. Fourthly, the word is used to designate sums paid as rent, the proceeds, that is, of the payment of one or more of the periodic installments, as when one speaks of applying the rent in a certain manner, meaning thereby what is received on account of rent. The word is fre- quently used in this sense in the phrase "rents and profits." When so used, the word is ordinarily preceded by the definite article. § 166. Future rent not present debt. The obligation of the tenant under a lease to make payments of rent as they become due does not constitute a present debt to be paid in the future. "Although there be a lease, which may result in a claim for rent, which will constitute a debt, yet no debt accrues until enjoyment (of the land) has been had."^ The obligation to pay rent is contingent ilpon the lessee's continued enjoyment of the land, and hence his liability is analogous to that of one who has agreed to pay for a building to be erected in the future, or for goods to be delivered, and not that of one who has promised to pay a sum unconditionally. As a con- sequence, a release by the lessor of all "actions" against the lessee,^ or of all "demands" against him,* does not relieve him 2 Bordman v. Osborn, 40 Mass. Lord Coke, "it was neither deiitum (23 Pick.) 295, per Shaw, C. J. nor solvendum at the time of the And see the full discussion of the release made; for if the land be question by Kennedy, J., in Bank of evicted from the lessee before the Pennsylvania v. Wise, 3 Watts (Pa.) rent become due, the rent is avoid- 394. ed." Co. Lift. 292 b. a-Litt. § 513. "Because," says * Collins v. Harding, Cro. Eliz, § 167 CLASSES OF RENT. 1011 fi'om liability for subsequently accruing rent. And so rent to become due is not a debt which can be subjected to attachment at the suit of a creditor of the landlord,^ and a statute making a stockholder liable for any debt, contracted by the corporation, or accruing, while he is stockholder, was held not to impose lia- bility for rent thereafter accruing.^ For the same reason, the landlord cannot, in the course of administration proceedings upon the estate of his deceased tenant, assert a claim for rent still to accrue,'' and such a claim cannot be presented in bankruptcy pro- ceedings.^ § 167. Classes of rent. At common law three classes of rent were recognized, rent service, rent charge, and rent seek. Rent service was the term applied to rent reserved upon a conveyance, whether in fee or for a less estate, by which a tenure was created.* Since, after the statute of Quia Emptores, a conveyance in fee no longer created a relation of tenure,^'' rent reserved upon such a convey- ance made after the statute was not rent service.' i But this stat- ute did not affect the priubiple that tenure was created by a con- veyance of less than a fee simple estate, leaving a reversion in the grantor, and consequently rent reserved upon such a con- veyance (a lease) was, after the statute as before, rent service.'^ Upon a failure by the tenant to pay rent reserved to his lord, as on his failure to perform any feudal service, the lord was entitled to seize the chattels upon the land, this being known as 606; Henn v. Hanson, 1 Lev. 99; In- Cairns, 107 Iowa, 727, 77 N. W. 478. gram y. Bray, 2 Lev. 210; Stephens oBordman v. Osborn, 40 Mass. (23 V. Snow, 2 Salk. 578; Co. Lltt. 292 a, Pick.) 295. Butler's note. f 2 Woerner, Administration, B Mason v. Belfast Hotel Co., 89 818; Deane v. Caldwell, 127 Mass. Me. 381, 36 Atl. 622; Wood v. Part- 242. ridge, 11 Mass. 488; Thorp v. Pres- s See post, § 182 1. ton, 42 Mich. 511, 4 N. W. 227; Ord- » Litt. §§ 213-216; Gilbert, Rents, 9. way V. Reminrton, 12 R. I. 319, 34 lo See ante, § 1. Am. Rep. 646; Haffey v. Miller, 6 "Lltt. §§ 215-217; Co. Litt. 143 b, Grat. (Va.) 454. Contra, Rowell Hargrave's note: Bradbury v. V. Felker, 54 Vt. 526. That rent to Wright, 2 Doug. 624; Van Rensse- become due is within a statute au- laer v. Hays, 19 N. Y. 68, 75 Am. Dec. tborlzing attachment "when nothing 278. but time is wanting to fix an abso- 12 Litt. §§ 214, 215. lute indebtedness," see Brown v. 1012 RENT. § 167 the remedy oJ! distress.^* This right of distress was a distinc- tive feature of rent service. "When the tenant had an estate of fee simple, the right of distress was incident to the right of lordship, the "seignory" as it was called, and, when the tenant had an estate less than a fee simple, to the reversion remaining in the lord. Consequently, if the lord transferred the seignory or reversion, while retaining the rent, or granted the rent, while retaining the seignory or reversion, it could no longer be enforced by distress, and was accordingly no longer "rent service" but was termed "rent seek" (dry rent).'* Rent might also, at comjnon law, be created by the grant to an- other, by one having an estate in land, of a rent issuing out of such land. There was in such case no relation of tenure, and con- sequently no remedy by way of distress to enforce payment of the rent, and accordingly rent so created was another form of "rent seek, ' ' unless a right of distress was expressly given on the crea- tion of the rent, in which case the rent was know"n as "rent charge," as being expressly charged on the land by the grant of such remedy .^^ Rents charge of this character, since they do not involve any relation of tenancy, do not properly come within the limits of a treatise on landlord and tenant, and they are, it is believed, practically unknown in any part of this country. In England they are not uncommon, being sometimes granted by the purchaser of land as part of the consideration therefor, and being also utilized as a mode of providing for younger sons and others in family settlements. Rent reserved upon a conveyance in fee simple, made since the statute of Quia Emptor es, is "rent seek" unless there is an express clause of distress inserted in the conveyance, in which case it is "rent charge. ''^^ In Pennsylvania it has been decided that the statute of Quia Emptores is not in force and that conse- quently, upon a conveyance in fee simple, a relation of tenure arises, so as to make rent reserved on such conveyance rent serv- ice and not rent charge or rent seck.*'^ 13 See 1 Pollock & Maltland, Hist. is See authorities cited ante, note Eng. Law, 353. See post, chapter 11. XXXII. IT Ingersoll v. Sergeant, 1 Whart. "Litt. §§ 218, 225-228. (Pa.) 337; Franciscus v. Reigart, 4 loLitt. |§ 218, 219; Co. Litt. 150 b: Watts (Pa.) 98. In Wallace v. 2 Pollock & Maitland, Hist. Eng. Harmstad, 44 Pa. 492, however, it Law, 129. was decided that, though the rent § 167 CLASSES OP RENT. 1013 Rent service is said by Littleton to exist "where the tenant holdeth his land of the lord by fealty and certain rent, or by other services and certain rent,"i8 and his commentator says that it is called rent service "because it hath some corporal service incident unto it, which at least is fealty. "i» Upon the strength of this latter statement, as transmitted by Blackstone,^^ it has been asserted, in at least two states in this country, that, in view of the fact that fealty is not there recognized, rent service is likewise nonexistent." 1 The correctness of such a view seems, however, questionable. In the time of Littleton and Coke, fealty was al- ways incident to the relation of tenure,22 and consequently rent service, being essentially tenurial in character, could not exist apart from fealty. It was therefore natural that those writers should describe rent service as that class of rent which was ac- companied by fealty or other service. But the view, stated by Coke, that rent service was so called because the rent was ac- companied by fealty or other service, seems hardly so probable as that it was so called because rent reserved to the lord was a service.2^ The expression "rent service" was in use nearly two hundred years before the time at which Littleton wrote,^* and the writers of that earlier time, as well as the judges, speak of rent reserved on a conveyance in fee is a 23 The view suggested wftuld serve rent service to which distress is to explain why a right of distress incident, there is no relation of ten- esists for rent reserved upon a ten- ure to which the right of distress is ancy at will, though there is no incident, and that, if the deed by fealty in such case. In reference to which the rent is reserved is de- this it is said, in Co. Litt. 57 b, that stroyed, there is no right of distress, a lessor at will "may distrain for The decision Is difficult to under- the rent, and yet it is no rent serv- stand and has been strongly criti- ice, for no fealty belongeth thereun- cised. See Cadwallader, Ground to, but a rent distrainable of common Rents, § 125 et seq.; Sharswood, Lee- right." "Of common right" means tures, p. 220. merely "by the common law." (Co. 18 Litt. § 213. Litt. 142 a), and the statement of 13 Co. Litt. 142 a. Coke is equivalent merely to a state- 20 2 Blackst. Comm. 42. ment that there is in such case a 21 Herr v. Johnson, 11 Colo. 393, right of distress because there is 18 Pac. 342; Penny v. Little, 4 111. such a right. (3 Scam.) 301. 24 See Y. B. 33-35 Edw. 1, p. 352, 22 Litt. §§ 91, 132; Co. Litt. 67 b, referred to in 2 Pollock & Maitland, 93 a. Hist. Eng. Law, 128 note. 1014 RENT. § 168 as one class of service.^* So regarded, the abolition of fealty f'ould not affect the applicability of the term "rent service" to rent reserved upon a lease. Even conceding the correctness of the view that rent service was so called because always accom- panied by fealty, it does not seem that the abolition of this mere leudal incident could in any way alter the essential character of rent so reserved, or the rights and liabilities connected there- with.'^*' In two or three of the older states it has been clearly recognized that rent reserved on a lease for years is rent servicBj^" and the rules which at common law govern the apportionment of rent service as to amount have invariably been applied to rent so reserved.** The. term "ground rent," which is quite frequently to be seen, is used with different meanings in different jurisdictions. In England it is said that "by the expression 'ground rent,' if un- explained, is to be understood a rent less than the rack rent^'' of the premises ; its proper meaning is the rent at which land is let tor the purpose of improvement by building ; but the expres- sion is very carelessly used."^" It is probably, in some of the states, applied to rent reserved on a lease for a term of .consid- erable length for purposes of improvement. In Pennsylvania the term is applied ordinarily to rent reserved upon a conveyance in fee, that is, a perpetual rent, and in Maryland to a rent reserved upon a lease for ninety-nine years with a covenant for perpetual renewal. § 168. What may be reserved as rent. Coke says that "rent is reserved out of the profits of the land,"*^ and Blackstone says that it "is a profit issuing out of" ^osee Bractoii, bk. 2, c. 16, lol. 35 (3 J. S. Green) 192; Ingersoll v. a; Britton (Nichol's Ed.) bk. 1, c. Sergeant, 1 Whart. (Pa.) 337. 28, § 16; bk. 2 c. 10, § 1; Y. B. 33- 28 See post, § 175. 36 Edw. 1, p. 208; Y. B. 1 & 2 Edw. 29 "Rack rent" is the full annual 2 (Selden Soc.) p. 119, pi. 36; Y. value of the tenement. 2 Blackst. B. 2 & 3 Edw. 2, p. 140, pi. 58. Comm. 43. 26 See remarks of Woodworth, J., so 1 Dart, Vendors & Purchasers In Cornell v. Lamb, 2 Cow. (N. Y.) (6th Ed.) 138j 2 Stroud, Judicial 652. Diet. (2d Ed.) 841. 2TEhrman v. Mayer, 57 Md. 621; 31 Co. Litt. 141 b. Doe d. Farley v. Craig, 15 N. J. Law § 168 WHAT MAY BE RESERVED AS RENT. 1015 tie land.s^ These statements presumably mean merely that, as stated in the definition above given, rent is in theory part of the actual or possible profits of the land, a theory which is no doubt closely related to another theory, that rent, like any feudal service, is something issuing from and owed by the land itself, and not by any particular tenant of the land.^s The chief conse- quences of the theory that rent is payable out of the actual or possible profits of the land are that if the lessee is deprived of the opportunity to take the profits, as by eviction, the landlord's right to rent ceases or is suspended,^* and that, as above stated, the rent is not a debt until the profits have been taken, in the absence of an express provision to the contrary.*'' The statement that rent is reserved or is payable out of the profits of the land does not mean, nor has it ever meant, that the rent must be paid by the delivery to the landlord of a part of the products of the soil, and this never occurs except when it is so expressly provided, as in the ease of the reservation of a crop rent. Rent is ordinarily reserved and made payable in money, and this may or may not be obtained by a sale of the profits or products of the land. It may, however, be reserved and made payable or "rendible" in almost any medium. "The rent may as well be in delivery of hens, capons, roses, spurres, bowes, shafts, horses, hawkes, pepper, comine, wheat, or other profit that lyeth in render, office, attendance, and such like, as in pay- ment of money."*® So it has been held that the rent reserved may take the form of doing a manual service, such as cleaning a church,3T ringing a church bell at stated intervals,*^ caring for the premises,*® doing labor and making repairs thereon,*®" or doing a certain amount of hauling;*" or the rent may consist partly in the doing of such service and partly in the payment of 32 2 Blackst. Comm. 41. ss Doe d. Edney v. Billett, 7 Q. B. 33 2 Pollock & Maitland, Hist. 976. Bng. Law, 126, 129; see post, § 171, an Gleason v. Gleason, 62 Mass. (8 at note 122. Gush.) 32; Shaw v. Hill, 79 Mich. 34 Clun's Case, 10 Coke. 126 h. 86, 44 N. W. 422. See post, § 182 e. 39a price v. Thompson (Ga. App.) 30 See ante, § 166. 60 S. B. 800. 36 Co. Litt. 142 a. 40 Van Rensselaer v. Jones, 5 37 Doe d. Edney v. Benham. 7 Q. Denio (N. Y.) 449; Van Rensellaer B. 97G. V. .lewett, 2 N. Y. (2 Comst.) 141. 1016 RENT. § 168, money.*! Occasionally, while a fixed money rent is named by the lease, it is expressly made payable in manual services to be ren- dered by the lessee.*^ It has even been said that a stipulation that the lessee should have his corn ground at the lessor's mill was in effect a reservation of a rent, so long as the mill belonged to the reversioner, the price to be paid for the grinding being in effect a varying rent.*^ As stated in the above quotation from Coke, rent may consist in the rendition of specific articles, and so rent in the form of wine,** as well as in a specific quantity of grain or cotton,*^ has* been judicially recognized. In this country it is a quite general usage to reserve as rent a certain proportion of the crop which may be raised on the demised premises.*'^ It is said by Coke that "a man upon his feoffment or convey- ance cannot reserve to him parcel of the annual profits them- selves, as to reserve the vesture or herbage of the land or the like. For a reservation ought not to be a reservation of the profits themselves, since these are granted, but of a new return out of the profits. ' '*'' In another place ** he calls attention to the "diversity between an exception (which is ever of part of the thing granted and of a thing in esse), and "a reservation, which is always of a thing not in esse, but newly created or reserved out of the land or tenement demised. ' ' It has in one case ** been asserted, on the strength of statements by textbook writers which "See Doe d. Tucker v. Morse, 1 3 Blackf. (Ind.) 264; Briscoe v. Mc- Barn. & Adol. 365; Vyvyan v. Ar- Elween, 43 Miss. 556; Brooks v. Cun- thur, 1 Barn. & C. 410. ningham, 49 Miss. 108; Fraser v. 42 Marlborough v. Osborn, 5 Best Davie, 5 Ricli Law (S. C.) 59. & S. 67; Woods v. Rock, Ale. & N. 4o See post, § 253. 57; Smith v. Colson, 10 Johns. (N. -it Co. Litt. 142 a. Y.) 91; Smith v. Fyler, 2 Hiii (N. « Co. Litt. 47 a. So it is said in Y.) 648. Bro. Abr., Reservation, pi. 46, citing 43 Vyvyan v. Arthur, 1 Barn. & C. St. Germain's Doctor and Student, 410. that "if a man leases land, reserving 4* Pitcher v. Tovey, 4 Mod. 71. common out of it, or the herbage 45 Y. B. 15 Edw. 3, 326 (Roll's Ser- or grass or profits of the land de- les) ; St. Cross Hospital v. pe Wal- mised, it is a void reservation, for den, 6 Term R. 338; Toler v. Sea- this is part of the thing granted." brook, 39 Ga. 14; Townsend v. Isen- «» Moulton v. Robinson, 27 N. H. berger, 45 Iowa, 670; Boyd v. Mc- 550. Combs, 4 Pa. 146: Clark v. Frazley, § 168 WHAT MAY BE RESERVED AS RENT. 1017 are themselves based on these dicta of Coke,50 that a reservation of any part of the annual orops cannot take eifeet as a reserva- tion of rent. But it seems that a distinction might perhaps be made between a reservation of vesture or herbage or other nat- ural products of the soil {fructus naturales) which have at least an embryonic existence as part of the land at the time of the lease, and annual crops resulting from planting and labor {fruc- tus industridles) which cannot well be regarded as a part of the land at the time of the lease. The statement by Coke himself that the rent may be in delivery of "pepper, comine, wheat, or other profit that lyeth in render, "^i would seem to suggest the possibility of the reservation of a part of the annual crop, and the validity of a reservation of a grain rent has always been recog- nized.^2 The common-law authorities do not, however, in terms assert the validity of the reservation of a rent consisting of a part of the very grain grown upon the land demised, and ordi- narily, no doubt, the purpose of the reservation of a grain rent was merely to avoid fluctuations in the value of the rent as a re- sult of fluctuations in the value of money, without reference to the question whether the premises were adapted for the produc- tion of the grain in which the rent was reserved. But whether the reservation as rent of a portion of the aJinual crops {fructus industridles), grown on the premises demised, would in England be regarded as valid or invalid, there can be no question as to its validity in most jurisdictions in this country, where a provi- sion for the payment to the landlord of a share of the crops as rent has been frequently enforced as constituting a reservation of rent.^* Even were such a provision void as a reservation, it would be effective by way of contract as between the original parties to the lease. The asserted rule, that rent cannot consist of a part of the 30 Sheppard's Touchstone, 80; 3 specific portion of the crop In lieu Cruise's Dig. tit. 28, c. 1, § 3; Comyn, thereof. Morton v. Lacy Bros. & Landl. & Ten. 95. Kimball, 84 Ark. 396, 106 S. W. 200. ■■■1 See ante, at note 36. It was held in one case that if the =2 See Bracton, bk. 2, c. 16, fol. leasee made a sublease and thereby 35 a; Y. B. 15 EdW. 3, 326. disabled himself from delivering a =3 See post, § 253. portion of the crop, the lessor could There may be a provision for pay- demand the cash rent named. Dass- ment of a cash rent, and, in a cer- ance v. Cold, 101 Iowa, 610, 70 N. W. tain contingency, the delivery of a 719. 1018 RENT. § 16j< profits of the land, has never been regarded, even in England, as precluding a computation of the amount of pecuniary rent by reference to the amount of such profits removed. For instance, upon the lease of a brick yard, a reservation of a certain sum for every thousand bricks manufactured, the aggregate for all the bricks removed in any one year to be paid at the end of such year, was regarded as rent.^* And it has been decided that the asserted rule does not apply when the reservation is, not of any part of a mineral in the ground, in its natural and primitive state, but of a metal produced from that mineral by smelting, in which process the native mineral is mixed with coal, or charcoal and subjected to the operation of fire.^^ There is at least one English case in which a reservation of the mineral itself is re- garded as a reservation of rent,^'" but there the validity of the reservation seems not to have been the subject of consideration. In other cases it has been said that, though the grantor or lessor of land undertakes to reserve to himself as rent a share of the ore which may be removed from the land, this constitutes in real- ity an exception from the grant or lease, and not a reservation of rent.^^ An attempted reservation as rent of ore in the ground seems, however, clearly distinguishable in this regard from a res- ervation of crops to be planted as well as gathered in the futufe. There are occasional decisions to the effect that a stipulation for the furnishing of board or support to the lessor by the lessee, in return for the making of the lease, constitutes a stipulation for the payment of rent.^* The chief objection to such a view 51 Reg. V. Westbrook, 10 Q. B. 178. tion of a porlion of the ore taken 55 Rex V. Pomfret, 5 Maule & S. out was regarded as a reservation of 139. rent under a power to lease reserv- »6 Buckley v. Kenyon, 10 East, ing the best possible rent. 139, where the rent reserved was a st See Gowan v. Christie, L. R. 2 certain proportion of the ore taken H. L. Sc. 273, 284, per Lord Cairns; out or its value in money, and if Coltness Iron Co. v. Black, 6 App. this value did not equal a sum Cas. 315, 335, per Lord Blackburn; named, then such additional rent Greville-Nugent v. Mackenzie [1900] as would make up that sum, and re- App. Cas. 83, per Lord Halsbury. To covery was allowed in favor of a the same effect, see Fairchild v. Pair- transferee of the reversion on the child (Pa.) 9 Atl. 255; Duff's Ap- covenant to pay the rent. In Camp- peal, 21 Wkly. Notes Cas. (Pa.) 491. bell V. Leach, 2 Amb. 740, a reserva- 3s Shouse v. Krusor, 24 Mo. App. §169 PAYMENTS NOT PROPERLY RENT. 1019 would seem to lie in the possible uncertainty as to the character of the board or support. A stipulation for the support of a third person, although con- tained in the instrument of lease, and intended to secure compen- sation for the use and enjoyment of the land, would not, under the common-law rule that rent must be reserved to the lessor,'** constitute a stipulation for or reservation of rent. But pre- sumably a provision for the furnishing of board to the lessor and to his family would be regarded as a reservation to the lessor within the rule.*" § 169. Payments which are not properly rent. a. Sums payable under lease of incorporeal thing. Rent can, by the common-law authorities, be reserved only upon a lease of land and things constituting a part thereof, to which the land- lord may have recourse to distrain, and cannot be reserved out of incorporeal things.^^ Whether the statement that rent must be reserved out of things to which the landlord may have re- course to distrain is to be regarded as a statement of the reason for the rule precluding the reservation of rent out of incorporeal things, or a statement of a result of the rule, does not clearly appear. In favor of the former view it is said that the king may reserve rent upon a lease of incorporeal things, for the reason that, by virtue of his prerogative, he can distrain on all lands of his lessee,^2 and so it is said that it may be reserved on a demise of the vesture or herbage of lands for the reason that the lessor may distrain the cattle on the land.** The question is of interest at the present day, owing to the fact that the common-law remedy by distress is no longer recognized in most jurisdictions, and whether as a consequence sums reserved upon a lease of an in- 279; In re Williams' Estate, 1 Misc. of board to be furnished by the les- 35, 22 N. Y. Supp. 906. see. 09 See post, § 170. «i Co. Litt. 47, 142 a; Gilbert, «» In Baker V. Adams, 59 Mass. (5 Rents, 20; 2 Blackst. Comm. 41; Cush.) 99, the provision was for a Lovelace v. Reynolds, Noy, 59; Gard- rent of a certain amount yearly, iner v. Williamson, 2 Barn. & Adol. which was to be paid by boarding 336; Buszard v. Capel, 8 Barn. & C. the lessor and his family. This is 141. obviously different from an attempt- «2Co. Litt. 47 a, Hargrave's note. ed reservation to the lessor's family "3 Co. Litt. 47 a. 1020 RENT. § 169 corporeal thing are there to be regarded as rent, with all the other common-law or statutory incidents thereof, involves a problem of considerable difficulty. In one state in which the remedy by distress does not exist, the common-law view that rent, properly so'called, cannot be reserved on a grant of an incorporeal thing, is apparently still recognized.^* In another of the states in which distress no longer exists, but without reference to that fact, sums agreed to be paid annually for the right to take water from a canal were regarded as rent,®'' on the theory, apparently, that sums agreed to be paid in connection with a lease, even though of an incorporeal thing, are necessarily rent, a view not in harmony with that of the common law. Even though a sum reserved on a grant or lease of an incorporeal thing be not re- garded as rent, it is recoverable, as .,between the Original parties, by action of debt ®® or of covenant.®^ b. Sums payable for enjoyment j of license. Sums which by agreement one pays for a license to go upon land for certain lim- ited purposes are not properly rent, even though so termed.®* The licensee has no interest in the land out of which the rent can issue. c. Sums payable tinder bailment of chattels. Payment re- served by way of "rent" on a lease or bailment of personal chat- oi Raby v. Reeves, 112 N, C. 688, It as a rent charge, there being no 16 S. E. 760. Indication of an Intention to grant 85 Jordan v. Indianapolis Water a rent Issuing out of the land. Co., 159 Ind. 337, 64 N. E. 680. There would seem to have been In Manderbach v. Bethany Or- merely a promise by the owner of phans' Home, 109 Pa. 231, 2 Atl. 422, land to pay an annual sum for a it was held that a sum which an privilege to be enjoyed in connection owner of land agreed to pay annual- with his land. ly for the use of water from the ee Co. Litt. 47 a; Dean & Chapter adjoining land was rent, as being of Windsor v. Gover, 2 Wms. Saund. "a profit issuing out of lands," and (pt. 2) 302. consequently the right thereto st Raby v. Reeves, 112 N. C. 688, passed on a transfer of such adjoin- 16 S. E. 760. ing land. This was certainly not a os Hancock v. Austin, 14 C. B. rent service according to common- (N. S.) 634; Ward v. Bay, 4 Best & law standards, there being no de- S. 337; Rendell v. Roman, 9 Times mise with a reservation of rent. It Law R. 192. See, as to the nature of Is also somewhat difficult to regard a license, ante, § 7 a. § 169 PAYMENTS NOT PROPERLY RENT. 1021 tels are not properly rent, since rent cannot issue out of chat- tels.«9 In the case of a lease of land together with chattels, as for instance of a farm with the stock thereon, or of a house with the furniture therein,89a ^^e whole rent is to be regarded as issuing from the land alone, so as to authorize a distress on the land for the entire amount thereof^* So, upon an eviction from the land, the liabilitj'^ for rent will be entirely suspended, without reference to the fact that the lessee continues to enjoy the use of the chattels included in the lease ;^i and a declaration in an action for rent is not defective because it avers a demise of land alone, although chattels also were included.'^- On the same prin- ciple, that the rent issues entirely out of the land, it has been decided in one state, that the executor of the lessor, though en- titled to the chattels, has no right to receive any portion of the rent reserved on a lease of land and chattels.''^ There are other cases, however, which refuse or fail to apply this theory when calculated to produce unjust results. For instance, it has been 6» Spencer's Case, 5 Coke, 17 a; not only from lands and tenements, SutlifE V. Atwood, 15 Ohio St. 186. but also the personal property nec- 6911 See post, § 254. essary for their enjoyment," mean- 70 Newman v. Anderton, 2 Bos. & ing thereby merely that the sums P. (N. R.) 224; Selby v. Greaves, reserved are rent though chattels are L. R. 3 C. P. 594 ; Stein v. Stely included in the lease, a proposition (Tex. Civ. App.) 32 S. W. 782; Toler which has never been disputed. V. Seabrook, 39 Ga. 14; Lathrop v. If chattels on the premises are Clewis, 63 Ga. 282. sold to the lessee by the lessor, their In Mickle v. Miles, 31 Pa. 20, it price, it has been decided, cannot is likewise decided that distress will be distrained for, though it is in- He for rent in such case, but there eluded in a gross sum to be paid by the court bases its decision not on the lessee for such chattels and for the theory that rent issues only ouf the use of the land. Cranston v. of land, but on the theory that rent Rogers, 83 Ga. 750, 10 S. E. 364. issues out of both lands and chattels 'i Gilbert, Rents, 175; Y. B. 12 when they are both included in the Hen. 8, 11, pi. 5; Emott v. Cole, Cro. lease. The court mistakenly thinks Eliz. 255; Read v. Lawnse, 2 Dyer, that the common-law statement that 212 b. Contra, Bro. Abr., Apportion- rent issues only out of land means ment, pi. 24. that the sum reserved is not rent 72 Farewell v. Dickenson, 6 Barn, if chattels are included in the lease, & C. 251. and undertakes to correct this state- 73 Armstrong v. Cummings, 58 ment. So in Vetter's Appeal, 99 Pa. How. Pr. (N. Y.) 332; Fay v. HoUo- 52, It Is said that "rent may issue ran, 35 Barb. (N. Y.) 295. 1022 RENT. § 169 decided that the grantee of the reversion in the land, without any interest in the chattels, is not entitled to the whole rent reserved, as against the grantor, retaining the chattels,''* and there are two cases in which it is decided that if the chattels leased with the land are lost or destroyed, the rent should be apportioned, tha,t is, diminished proportionally J ^ These last cited cases, however, would seem hardly to accord with the ordinary rule, hereafter stated,^® that no apportionment of rent occurs on the destruction by fire of the buildings on the land leased, and in one of such eases the decision seems to be regarded as involving a repudiation of that rule. "Where the mortgagor of premises let them, with the furniture thereon, and the tenant, upon receipt of notice from the mort- gagee,'' '^ paid the whole rent to him, it was held that the mort- gagor might still recover for the use of the furniture, if not on the ground that the rent might be apportioned, on the ground that a new agreement might be implied on the part of the ten- ant to take the house at a reasonable rent from the mortgagee, and to pay a reasonable amount to the mortgagor as compensa- tion for the use of the furniture.''^ d. Sums payable under lease but not for use of the land. Rent reserved on a lease is a compensation for the tenant's right to the use and enjoyment of the land during the term of the lease, and, therefore, sums, although in terms reserved as rent, evi- dently payable on a different account, are not properly rent. It TiBuffum V. Deane, 70 Mass. (4 authority for the view that the cov- Gray) 385. In Newton v. Speare enant for rent does not run if chat- Laundering Co., 19 R. I. 546, 37 Atl. tels are included in the lease. 11, it is decided that the transferee 75 Newton v. Wilson, 3 Hen. & M. of the land in such case is entitled (Va.) 470; Whi taker v. Hawley, 25 only to the value of the use and occu- Kan. 674, 37 Am. Rep. 277. The pation of the land. same view is favored by Le Tav- In Jones v. Smith, 14 Ohio, 606, it erner's Case, 1 Dyer, 56 a. Buss- is decided that upon a transfer of man v. Ganster, 72 Pa. 285, contains the reversion in the land alone, the a dictum contra, but cites only the covenant to pay rent does not pass, case last cited from Dyer, which This decision appears questionable, does not support it. The decision in Spencer's Case, 5 ^o See post, § 182 m (1). Coke, 16, to the effect that a cove- "See ante, § 73 a (3). nant by the lessee to return the chat- 78 Salmon v. Matthews, 8 Mees. & tels does not run with the land, cited W. 827. in the Ohio case, is evidently no § 169 PAYMENTS NOT PROPERLY RENT. 1023 is apparently on this ground that sums reserved, over and above the rent named, expressed to be by way of compensation for good -will, are not rent,''^ and a like decision has been made as to periodic sums which the tenant, during the lease, agreed to pay under the name of rent, in consideration of the making of im- provements by the landlord.so And sums agreed to be paid by the lessee in payment ef past indebtedness are not rent, even though so called in the instrument of lease.si Decisions to the eifect that sums due under a stipulation that the lessee would pay the lessor for gas furnished by the latter,*^ and that a sum which the tenant agreed to add to the rent reserved in considera- tion of the landlord's consent to an immediate surrender,*^ con- stituted rent, seem decidedly questionable. It may also be doubted whether an agreement to reimburse the landlord for certain repairs by a payment termed "rent" can be properly con- sidered a reservation of rent.** e. Sums payable for furnishing of power. The word "rent" is not infrequently applied to sums payable by agreement for mechanical power furnished by one person to another, for manu- facturing or similar purposes. In such cases the obligation to make the designated payments is purely contractual, and does not, as does rent proper, issue out of a particular thing in which the obligor has a, proprietary interest or estate. The obligee has a right to recover such payments by an action of contract, as one has to recover rent, but the principles peculiar to the law of rent have properly no application to such payments. ^aSmitli V. Mapleback, 1 Term R. this case the agreement to pay such 441. sum was made after the lease and in soHoby V. Roebuck, 7 Taunt. 157; consideration merely of the land- Donellan v. Read, 3 Barn. & Adol. lord's agreement to make the im- 899. provements. 81 Paxton V. Kennedy, 70 Miss. 865, In Sipp v. Reich, 88 N. Y. Supp. 12 So. 546; Miners' Bank of Potts- 960, it was provided in the insLru- ville V. Heilner, 47 Pa. 452; First ment of lease that the tenant should Nat. Bank of Sioux City v. Flynn, make certain improvements, and 117 Iowa, 493, 91 N. W. 784. that if he failed to do so within a 82 Pernwood Masonic Hall Ass'n v. certain time he should pay the land- Jones, 1&2 Pa. 307. lord $2,400, and it was decided that ssBrisben v. Wilson, 60 Pa. 452. this sum so due was not rent, it be- "* But in People v. Loomis, 27 ing "nowhere stated In the lease or Hun (N. Y.) 328, 2 Civ. Proc. R. 278, otherwhere shown to be lor rent." this was held to constitute rent. In 1024 RENT. § 169 f . Sums payable on sale of land. Payments on the purchase price of land cannot, it has been decided, be made subject to the principles and rules applicable to rent, by a mere agreement be- tween the parties to that effect.^^ But it has been decided that a lease may be made at a certain rent, with a stipulation that in case the rent is paid promptly the lessor will convey the prem- ises to the lessee.*^ Interest which a vendor agrees to pay on purchase-money payments made by a vendee, until possession is given such vendee, is not rent.S'^ g. Cash bonus or premium paid by lessee. A cash bonus or premium, paid by a lessee for the lease, is not properly rent, it being not reserved, but paid, and the payment being in antici- pation and consideration of the creation of a tenancy, and not as a result thereof. It may be, however, that the word "rent" in a particular case may be construed as covering a premium so paid, as when a lessee agrees to pay a portion of the rent received by him upon making a sublease, and receives a premium upon subleasing.^* And so it has been suggested that such a premium, if considerable in amount, might be regarded as an "improved rent" within the meaning of a certain act of parliament.^® h. Taxes paid by lessee. As before stated,®" a stipulatioc by the lessee for the payment of the taxes as they accrue has been regarded as one for the payment of rent. But the propriety of regarding as rent sums which the lessee thus agrees to pay a third person on behalf of the lessor may well be doubted. Such payments are, in a sense, a part of the return made by the ten- ant for his use and enjoyment of the land, in that the rent presum- ably would be higher were they not to be paid by him. But they lack one primary characteristic of rent, in that they are payable not to the landlord but to a third person,®! and the fact that their payment to such person by the tenant relieves the land- lord from the burden thereof does not, it would seem, alter their character in this respect. One characteristic of rent at common- law is that the lessor haw a right to brin? an action of debt 85 Sackett v. Banium. 22 Wend. ss Constantine v. Wake. 31 N. Y. (N Y ) 605 Super. Ct (1 Sweeny) 239. 36 See ante', § 43 d, note 48. '" ^"^'^ ^oc. v. Needham, 1 Term R. 4SC. ST Mason v. Rogers, 109 Pa. m.. 1 ^^^^^ ^^^^_ ^, ^^3 ,^ -A-tl- 665. ni See post, S 170. § 170 THE RESERVATION. 1026 thei-efor by reason of privity of estate,"" but he could not do so in the case of sums so reserved payable to another person, and he would be restricted to an action based upon the privity of contnact alone. It has been well said, in this connection, that ' ' rent has a fixed legal meaning, and to consider all payments which, by the terms of a lease, a tenant is bound to make, as coming within its defi- nition, would lead to a confusion of ideas without necessity or advantage. * * * In one sense the performance of every covenant on the part of the lessee is a return made by the ten- ant for the use of the land. Yet it would hardly be contended that money stipulated to be expended in repairs or for insurance, er in the way of improvements, was any portion of the rent.""^ The fact that the parties intend that payments thus agreed to be made by the tenant on account of taxes shall be regarded as payments of rent cannot, it is conceived, have any effect in this regard. The question of what constitutes rent is one of law, not of intention. There are a few decisions that a covenant to pay taxes is not one to pay rent."*""" § 170. The reservation of rent. In technical language, the rent which is provided for by the terms of a lease is ' ' reserved, ' ' as distinguished from a part of the land, which may be "excepted.""'^ The recognized words by which rent is reserved at common law are "yielding and pay- ing," but no particular language is necessary, it being sufficient that it indicates an intention that the rent named be paid or rendered to the lessor. Thus, such expressions as "provided the lessee shall pay" the rent named,"^ or "at or under a yearly rent of" a sum named,"" are sufficient, as are words by which the lessor covenants or agrees to pay.^"" 02 See post, § 288 a. 97 Co. Litt. 47 a; Doe d. Douglas »3 Garner v. Hannah, 13 N. Y. v. Lock, 2 Adol. & E. 705, 743. Super. Ct. (6 Duer) 262, per Slos- as Harrington v. Wise, Cro. Eliz. son, J. 486. 94-90 Evans v. Lincoln Co., 204 Pa. «» Doe d. Rains v. Kneller, 4 Car. 448, 54 Atl. 321; Garner v. Hannah, & P. 3. 13 N. Y. Super. Ct. (6 Duer) 262; 100 Drake v. Munday, Cro. Car. People V. Swayze, 15 Abb. Pr. (N. 207; Alfo v. Henning, Owen, 151; Y.) 432; Hodgklns v. Price, 137 Attoe v. Hemmings, 2 Bulst. 281; Mass. 13. Anonymous, 12 Mod. 73. That is, a L. and Ten. 65. 1026 RENT. § 170 It is a well settled rule of the common law that rent must be reserved to the lessor or grantor himself, and not to a stranger, since it is to be paid by way of retribution for the land, and consequently should go to him from whom the land passes.^"i It was accordingly considered that a reservation of rent to the heir of the lessor was void,!''^ unless the lease was not to begin till after the lessor's death,!"^ ^s was a reservation to the les- sor's son, who joined in the lease, even though the lease was not to begin till after the lessor's death, since a reservation to the son by name, and not as heir, is the same as a reservation to a stranger.io* Amd where the reservation was to the lessor and his wife, the wife had no right to any part of the rent, even after his death.ios Such an attempted reservation to a stranger, if it can be construed as a covenant to pay the sum named as rent, is, however, ground for an action of covenant by the covenantee,!"^ and, it seems, in jurisdictions where one not a party to a con- tract is allowed to sue thereon, for an action by the person to whom the rent is attempted to be reserved. Furthermore, if there is a condition of re-entry in case of nonpayment, the les- sor, though not the stranger named, can re-enter on nonpay- ment.i"'^ In several states decisions are to be found which ap- parently regard a reservation of rent to a stranger to the lease as valid,^***' i"* but it may be questioned whether even in those states sums so reserved are to be regarded as rent, properly • speaking, the payment of which can be enforced by the remedies provided in the case of rent, such as distress, or the assertion of a statutory lien. The right to such payments would evidently not pass on a transfer of the reversion, and it seems question- covenant to pay rent will supply the ow, was held void as an attempted place of a reservation. testamentary disposition of prop- loiLitt. § 346; Co. Litt. 143 b; 2 erty. Rolle, Ahr. 447; Gilbert, Rents, 54; los 2 Rolle, Abr. 447, pi. 7. Ryerson v. Quackenbush, 2fi N. J. loo Deering v. Farrington, 1 Mod. Law, 236. 113. 102 Co. Litt. 213 b. 107 Litt. § 345; Gilbert, Rents, 55. 103 2 Rolle, Abr. 447, pi. 2. los, loo In Toan v. Pline, 60 Mich. 10* Dates V. Frith, Hob. 130. In 385, 27 N. W. 557; Schneider v. Murray v. Cazier, 23' Ind. App. 600, White, 12 Or. 503, 8 Pac. 652; Brod- 53 N. E. 476, 55 N. E. 880, a provi- die v. Johnson, S3 Tenn. (1 Sneed) sion for the payment of the rent, 464, a sum so reserved, payable to a after the lessor's death, to his wid- third person, is spoken of as rent, § 170 THE RESERVATION. 1027 able whether the liability therefor would pass on an assignment of the leasehold. The presence in the instrument of lease of a stipulation that rent shall be applied to a specific purpose by the lessor does not, it has been held, affect its character as rent.^^" As there can be no reservation of rent to a stranger during the life of the lessor, "so" it is said "rent cannot be reserved after Ihe death of the lessor to any person who has not the reversion after his death, "m Consequently, if one having a fee simple estate in land makes a demise for years, reserving an annual rent ' ' to him, his heirs, executors and assigns, ' ' the word ' ' executors ' ' will be rejected, and the rent will enure to the benefit of the lieir.112 But the reservation may be "general," without mention of the lessor or of any other person to whom the rent is to be paid, and in that case the rent will, on the lessor's death, fol- low the reversion. That is, if the reversion is a fee simple, the rent will pass with it to the heir or devisee, while if the rever- sion is personalty, the rent will pass with it to the personal rep- resentative.^i^ This is the safe and proper form of reservation to be used. If the reservation is "particular," as when a tenant in fee leases for years reserving rent to himself, without more, or to him and his executors, or to him and his assigns, or to him and his executors or assigns, the rent comes to an end, it has been de- but the question involved Is merely merely a stipulation that it might as to the right of such person to sue be paid by payments to the lessor's therefor, which he could do, pre- creditors. Such a stipulation as to sumably, whether it is rent or not. the mode of payment would not, It See ante, at note 106. In Brett v. seems, affect the character of the Sayle, 60 Miss. 192, an agreement by sums reserved, and they were prop- a sublessee with his lessor to pay erly regarded as rent, but the court rent to the original lessor was re- held that no distress would lie in garded as an agreement for rent, favor of the lessor, but the decision was merely that, in no Ryerson v. Quackenbush, 26 N. a suit for the rent by the lessee, the J. Law, 236. And see Bge v. Bge, 5 sublessee could not set off an account Watts (Pa.) 134, ante, notes 108-109. against the latter, since he could m Gilbert, Rents, 61. not have set it off against the lessor. 112 Gilbert, Rents, 61. In Bge V. Bge, 5 "Watts (Pa.) 134, ns Go. Litt. 47 a; 2 Pliatt, Leases, rent to a certain amount was re- S8; Gilbert, Rents, 64; Jaques v. served generally, and there was Gould, 58 Mass. (4 Gush.) 384. 1028 RENT. § 17(, cided, on the death of the lessor.^i* and likewise, if a tenant for years makes a sublease reserving rent to himself and his heirs, the rent ceases on the lessor's death, it is said, since the heir has no right to succeed to a chattel interest, and there are no words to carry it to the executor.n^ But the addition of the words "during the term" will, it has been decided, prevent such a result, in any of the above cases, and have the effect of causing the rent to pass after the lessor's death to the person succeeding to the reversion.il'' Whether the above rule, that in the case of a "particular" reservation of rent, not naming the proper person to take after the lessor's death, the rent ceases upon such death, would ordi- narily be recognized in this country, may be questioned, and that, in the case of a reservation to the lessor, without more, the rent Avould be regarded as so incident to the reversion as to pass therewith on the lessor's death, is hardly open to' doubt.i" Th« contrary view, that the rent in such case ceases on the lessor's death, appears to be based on the theory that a reservation to a certain man, without more, is equivalent merely to a reservation to him for his life, and thus seems to be analogous to, and is per- haps an outgrowth of, the common-law rule that a conveyance of land passes a life estate only, in the absence of words of inheritance.il* The policy, embodied in the statutes of a num- ber of states, dispensing with the requirement of the word "heirs" in the latter easp, might well be extended by the courts to the former case."'' m Gilbert. Rents, 66; 2 Piatt, favored, on principle, by Sergeant Leases, 88. Williams. See 2 Wms. Saund. 368, iiii Sacheverel v. Frogate, 1 Vent, note to Sacheverel v. Frogate. 161. As to the presumption in re- us See 1 Tiffany, Real Prop. § 20. gard to the character of the lessor's ii» In this country when, upon a estate in case of a reservation to the conveyance of land, an easement is lessor, "his administrators and as- sought to be created therein by the signs," see Dollen v. Batt, 4 C, B. same instrument in favor of the (N. S.) 760. grantor, the language used for this no Gilbert, Rents, 67, 68; 2 Piatt, purpose is ordinarily referred to as Leases, 91 et seq. a reservation. Some courts have a 11' This view was occasionally as- tendency to call language thus creat- serted by early judges, including ing an easement in the grantor an Littleton. See Y. B. 14 Hen. 6, 26, pi. exception rather than a reservation. 77; Y. B. 10 Edw. 4. 18, pi. 22. It is in order to obviate any necessity of § 171 COVENANTS FOR PAYMENT. 1029 In the case of a lease made by a life tenant under a power, though the reservation of rent is to the lessor, his heirs and as- signs, the rent will, after the lessor's death, go to the remainder- man, since the lease is considered, in such case,, as emanating from the creator of the power.i-* If two or more pieces of land are demised by a single instru- ment, and there is a reservation of a distinct rent for each piece, <^aeh rent so reserved is a separate rent, and payment of any particular rent can b^ enforced only as against that particular piece of land as to which it is reserved.' 21 ;^ 171. Covenants for the payment of rent. See ante, § 50. Vyvyan v. Arthur, 1 Barn. & C. 410. "1 Webb V. Russell, 3 Term R. 1032 RENT. § 171 sions need consequently not be regarded as opposed to earlier dicta}^'- to the effect that the words "'yielding and paying" create an "express covenant" and not "a covenant in law," or to the American cases which take a similar view.^^" As an al- ternative to the above possible views, that the words of reser- vation create no covenant, or that they create a covenant, which is in reality an express covenant, and can be said to be "implied" only in the sense that it is a matter of inference and construc- tion, these words might perhaps be regarded as creating a cov- enant implied by law, or a covenant "in law," as it would be called by the older authorities, on the theory that such words, after having their primary operation as creating the rent, have a secondary operation as creating a covenant to pay the rent, not on the theory that they, of themselves or with their context, show an intention to that effect, but because a rule of law has become established that they shall have that effect. That is, as the word "demise" is said to import a covenant for quiet enjoyment,!^* so the words "yielding and paying" might be regarded as importing a covenant to pay rent. Such a view of the effect of the words of reservation is not, however, clearly asserted in any decision, and, even assuming that these words create an "implied covenant" in this sense, it does not appear that the effect thereof as regards the liability of the covenantor would be in any respect different from that of an express cov- enant. They are both, indeed, "express contracts," as regards their place in the general law of contracts. ^^^ i32Hellier v. Casbard, 1 Sid. 266; sumers' Ice Co. v. Blxler, 84 Md. 437, Newton v. Osborn, Style, 387; For- 35 Atl. 1086, it was held that the fact ter V. Swetnam, Style, 406: HoUis v. that the demise was in terms "sub- Carre, 2 Mod. 91. ject to" a certain rent, taken in con- 133 In Bussman v. Ganster, 72 Pa. nection with other provisions of the 285, it' is said that an express cov- lease, showed an intention to hind enant arises from the words "the the lessees for the rent during the rent to be paid monthly." In Hal- term, and the court also said that lett V. Wylie, 3 Johns. (N. Y.) 44, 3 an "express covenant" was necessary Am. Dec. 457, it was said that there thus to impose a continuing liabil- was an express covenant to pay ity on the lessee, rent when the premises were de- 134 See ante, § 79 a. mised "at the rent of" a certain sum 135 See article. Covenants as Quasi per annum, and the lessee "agreed Contracts, by Louis L. Hammon iu to take the premises on the terms 2 Mich. Law Rev. 106. and conditions aforesaid." In Con- § 171 " COVENANTS FOR PAYMENT. 1033 In some cases, neither of the above three alternative views is in terms adopted, or indeed suggested, but the view is indicated that words of this character give rise to an implied covenant, or covenant in law, which imposes on the lessee a liability different from, and more restricted than, that imposed by an express cov- enant. These eases we will now consider. It is stated in an early case, under a "semble," that the covenant created by the words of reservation is a "covenant in law," on which an action does not lie against the lessee after an assignment by him of the leasehold,!*" and in this country, likewise, it has been clearly decided in one state that there is in such case an "im- plied covenant" on which the lessee is not liable after assign- ment.**' As is elsewhere stated,i38 g, lessee covenanting to pay rent is ordinarily liable on his covenant even after he has as- signed his interest to another, that is, his liability by reason of privity of contract remains, although his liability based on privity of estate, that is, on the relation of tenancy, ceases upon such assignment, consented to by the lessor. The effect of the eases just referred to, however, is to exclude the application of this rule as to the lessee's continuing liability, in cases in which there is no covenant other than that "implied" from the words of res- ervation. On the same theory, it has been decided that where the premises were leased "at a yearly rent" of a sum named, al- though with the additional clause "the lessees well and truly keeping and performing their part of these presents to be by them performed as aforesaid," there was merely an "implied cove- 13S Anonymous, 1 Sid. 447, pi. 9. reservation seems to be consiclered to In Bacheloure v. Gage, Wm. Jones, have some bearing upon the question 223, it is said that there Is a differ- whether the right to the rent ran ence between covenant in deed and with the reversion. The report is in covenant in law, for if covenant in this respect most obscure. The re- law, after assignment and accept- port in Thos. Jones, p. 102, merely ance, no action lies against the first states that the court held that the lessee, but if covenant in deed it Is action of covenant would lie on such otherwise, for there the action at all words. times lies against the first lessee." ist Kimpton v. Walker, 9 Vt. 191. See ante, § 157 a (2), note 307. There is a dictum to that effect in In Harper v. Burgh, as reported in Kunckle v. Wynick, 1 Dall. (Pa.) 2 Lev. 206, the fact that the action 305. could be regarded as being on the i"" See post, § 181 a. covenant implied from the words of 1034 RENT. § 171 nant" to pay rent, and consequently the lessees' liability ceased upon assignment by them.is" The same idea is, in other cases, suggested by the statement that the lessee remains liable after assignment, if there is an "express" covenant to pay rent,!*" thereby intimating that there might be an "implied" covenant to that effect under which he does not remain liable. These decisions and dicta, might at first suggest a theory that, besides express covenants, and implied covenants (covenants in law) properly so termed, there is a third class of covenants, which are "implied" from a reservation of rent, and the peculiar char- acteristic of which is to impose a liability based on privity of contract, whiijh is similar to that which already exists by reason of privity of estate, in that it ceases upon an assignment of the leasehold. But a consideration of the. language used in the cases referred to is calculated to induce the suspicion that the expres- sion "implied covenant," as used in these cases, is but an in- accurate mode of referring to the lessee's liability by reason of privity of estate, they indeed occasionally stating in terms that it is based on such privity. ^'^ Such a restatement, in terms of 130 Fanning v. Stimson, 13 Iowa, 42. the latter are such as the law raises "oAuriol V. Mills, 4 Term R. 94; from the relation of the parties, In Consumers' Ice Co. v. Bixler, 84 Md. the absence of any agreement be- 437, 35 Atl. 1086; Ghegan y. "Voung, tween them on the subject. 23 Pa. 18. In Harmony Lodge v. White, 30 1" See Fanning y. Stimson, 13 Ohio St. 569, 27 Am. Rep. 492, it was Iowa, 42; Consumers' Ice Co. v. Bix- held that lessees holding over, who ler, 84 Md. 437, 448, 35 Atl. 1086. So paid the same rent as before, which it is said that the lessee remains lia- was accepted by the lessors, were ble only on his express contract to not liable as on an express covenant pay rent, and does not remain liable to pay rent, and consequently did when there is "no express covenant not remain liable after their assign- to pay other than that implied from ment and the acceptance of rent occupancy," in which case "the right from the assignee, since their obli- of the landlord to collect rent rises gation to pay rent was only that im- out of a privity of estate." Charless plied by law from the "privity of V. Froebel, 47 Mo. App. 45. And in estate" between the parties. As to Sutliff V. Atwood, 15 Ohio St. 186, it this, however, it would seem that is said that there are two sorts of ob- since the renewal for another year, ligations by which the tenant may be which the law presumes in such case, liable to the lessor, those which is on the same terms and conditions arise from express agreement and as the original demise, the lessee those which are "implied," and that would in such case be liable as on an § 172 T^ME AT WHICH DUB. IO35 covenant, of the lessee's liability which exists, by reason of priv- ity of estate, apart from any covenant, seems unnecessary and misleading, if not positively erroneous. § 172. Time at which rent is due. a. Usually at end of rent period. A lease of land ordinarily states cither the periods vpith reference to which the installments of rent are to be computed, as by providing for a "weekly," "monthly," "quarterly" or "annual" rent, or it specifies the exact days on which rent is to be paid. In the latter case the question as to the time for payment of the successive installments of rent is merely one of construction of the language used. In the former case the rent for the particular period named, whether it be a week, a month, a quarter, or a year, does not become' due until the end of such period, 1*2 j^ ^j^g absence of a stipulation,^^* or, it seems, a custom,^** to the contrary, the theory being that, since rent is a part of the profits of the land, it is not payable until it has been earned by the tenant's enjoyment of the prem- ises. In determining what is the last day of the rent period, whether a year, a quarter, a month, or a week, for this purpose, the same method of computation is employed, it seems, as in de- termining the length of a term,!^^ that is, the last day of each period, on which day the rent becomes due, is not that correspond- ing to the first day, but the day previous thereto. For instance, if the term begins on the second day of January, and rent is in terms payable monthly, it becomes due on the first and not the second day of each of the following months, and, if payable express contract if the original de- & S. (Pa.) 432; Hilsendegen v. mise contained a covenant to that Scheich, 55 Mich. 468, 21 N. W. effect. 894; Gibhs v. Ross, 39 Tenu. (2 1*2 Coomher v. Howard, 1 C. B. Head) 437. See post, § 172. 440; Kistlerv. McBride, 65 N. J. Law, "4 Buckley v. Taylor, 2 Term R. 553, 48 Atl. 558; Hilsendegen v. 600; Doe d. Hall v. Benson, 4 Barn. Scheich, 55 Mich. 468, 21 N. W. 894; & Aid. 588; Calhoun v. Atchison, 67 Castleman v. Du Val, 89 Md. 657, 43 Ky. (4 Bush) 261, 96 Am. Dec. 299; Atl. 821; Ridgley v. Stillwell, 27 McFarlane v. Williams, 107 111. Mo. 128; Parker v. Gortatowsky, 129 33; Tignor v. Bradley, 32 Ark. 781; Ga. 623, 59 S. E. 286; Holt v. Nixon, Watson v. Penn, 108 Ind. 21, 8 N. 73 C. C. A. 268, 141 Fed. 952. See E. 636, 58 Am. Rep. 26. Gihhens v. Thompson, 21 Minn. 398. 1+5 See ante, § 12 c (3) (a). 1*3 Appeal of Menough, 5 Watts 1036 RENT. §172 yearly, it becomes due on the first day of each of the following years.^*^ When a yearly, quarterly, monthly, or weekly rent is reserved, or the rent is expressed to be payable at such intervals, this is construed to mean that the rent is so payable throughout the term.i*^ If a tenancy from year to year or for another year is created by the action of the tenant in holding over the term, and thv landlord's consent thereto,!*^ the rent is payable at the same times as under the original demise.i*^ But ordinarily, in the case of a tenancy from year to year, the rent is, unless it is other- wise stipulated, payable at the end of each year,i5o and so, on a tenancy from month to month, it is payable at the end of each month,i5i the rule being the same in the case of such a tenancy as in that of one for years, that prima facie the day for payment is the last day of each of the periods with reference to which the rent is computed. Occasionally a statute specifies the time for the payment of rent in case no time is named in the lease and there is no usage to the contrary.152 b. Specification of rent days. A specification of the days for payment of rent is conclusive, and cannot be controlled by the times named for the commencement and ending of the term.^^^ 146 So, If the term begins January "o Vegely v. Robinson, 20 Mo. App. 10th. and the rent is payable quar- 199; Laguerenne v. Dougherty, 35 terly, the rent falls due on April 9th, Pa, 45. July 9th, October 9th, and January leo Indianapolis, D. & W. R. Co. 9th, and not on the tenth day of v. First Nat. Bank, 134 Ind. 127, 33 each of these months. Donaldson v. N. B. 679; Cowan v. Henika, 19 Smith, 1 Ashm. (Pa.) 197. , Ind. App. 40,- 48 N. E. 809. See In Hammond v. Thompson, 168 Blodgett v. Lanyon Zinc Co., 58 C. Mass. 531, 47 N. E. 137, the lease C. A. 79, 120 Fed. 893. was. dated the 15th of a certain ibi Dauchy Iron "Works v. McKlm month, and a monthly rent was to Gasket & Mfg. Co., 85 111. App. 584 be paid "after the termination of (semble). each month of the tenancy," and it i'''- See Alabama Code 1907, § 4735; was held that the rent "accrued" California Civ. Code, § 1947; T^orth on the 14th of a subsequent month, Dakota Rev. Codes 1905, § 5533; though not payable till the next day. Oklahoma Rev. St. 1903, § 869; . See post, notes 159, 162. South Dakota Civ. Code 1903, § 143S. i<7 2 Rolle, Abr. 449; Bac. Abr., iss Tomkins v. Pinsent, 2 Ld. Rent (F). Raym. 819. lis See post, § 210 a. § 172 TIME AT WHICH DUE, 1037 And where, by a lease dated the eighth of September, premises were demised for seven years at an annual rent payable quar- terly, the first payment to be made on the twenty-fifth of March, it was held that one quarter's rent only became due then, and that the previous quarter's rent could not also be collected at that time, but that this was postponed till the end of the term.!"* Nor is the time for payment, as named by the lease, extended by the fact that the landlord has no right of re-entry for nonpay- ment until a subsequent date.i^^ The question whether an oral agreement as to the time at which the rent is to be paid may be shown would properly depend upon whether it can, in the particular case, be regarded as "col- lateral" to the transaction incorporated in the written instru- ment.!"* If the time for the payment of rent is expressly stated, evidence cannot be introduced to show that a different date was agreed on.i^'^ Days specified by the lease for the payment of the installments of rent do not necessarily correspond to the days on which the installments would fall due in the absence of such specification. For instance, in the case of a monthly rent payable under a lease dated on the first day of the month, while the rent would, in the absence of a stipulation otherwise, fall due on the last day of each month, the lease will frequently provide for its payment on the first day of the following month. So the day for the pay- ment of the last installment of rent may be fixed some time after the end of the term,'^^ or a monthly rent may be made payable "after the termination of each month of the tenan- iB4Hutchlns V. Scott, 2 Mees. & stock, 4 N. Y. (4 Comst.) 270, 53 Am. W. 809. Dec. 374. »55 Rowe V. Williams, 97 Mass. A subsequent oral extension ot tlie 163; Van Rensselaer v. Jewett, 2 N. time of payment was held to be nug- Y. (2 Comst.) 149; Clun's Case, 10 atory in view of a statutory provi- Coke, 129 a. sion that a contract in writing can- 130 That such an agreement can be not be altered except by a contract shown, see Hartsell v. Myers, 57 in writing or by executed oral agree- Miss. 135. Compare Giles v. Com- ment. Harloe v. Lambie, 132 Cal. stock, 4 N. Y. (4 Const.) 270, 53 Am. 133, 64 Pac. 88. Dec. 374. iss Hopkins v. Helmore, 8 Adol. & 157 Carpenter v. Shanklin, 7 K. 463; Hutchins v. Scott, 2 Mees. Blackf. (Ind.) 308; Giles v. Com- & W. 809. 1038 RENT. § 172 cy_"i59 Such seems to have been the effect of the provision for "days of grace" formerly common in England, the rent be- ing stated to be payable on certain days named, or within so many days or weeks thereafter.i*"" Whether, when rent is thus made payable after the end of the period during which it is be- ing earned, the courts can consider it as due for any purpose after the end of the period and before the day named for pay- ment, is a question to which the cases give no satisfactory answer. In a leading English case^^i it was decided that rent, payable by express provision on the usual quarter days, or within a named period thereafter, cannot be apportioned as to time, in case there is a change of ownership or termination of the tenancy during such period, the theory being that, if the rent is not paid on the first of the days named, the case stands as if the rent had been expressly made payable on the second of such days, and on no other. There is, however, one case in this country to the effect that if the rent is not payable until a date later than the expira- tion of the period during which it was earned, the right to the rent is to be determined without reference to a change of title after the expiration of such period, though before the day for payment of the rent.^®^ I'd Hammond v. Thompson, 168 loi Clun's Case, 10 Coke, 126 b. Mass. 531, 47 N. E. 137. Here the And see dictum of Patteson, J., tenancy began on the 15th of a ante, note 159. month, and a monthly rental was 102 Noble v. Tyler, 61 Ohio St. 432, named, payable as stated in the 56 N. E. 191, 48 L. R. A. 735, where text, and it was said that the rent the life tenant who made the lease, "accrued on the 14th of a subse- and who died after the term of the quent month, while not payable till lease and before the day fixed for the next day." The term "accrued"' payment of the rent, was held to be is somewhat ambiguoiTS when thus entitled to all the rent, it being said used. The court evidently means that "the accrual of rent does not that the period during which it was necessarily depend upon the time being earned ended on that day, fixed by the parties for its payment but the word "accrue" is frequently The accrual of rent has respect to used as meaning "become payable." the term of the lease." In Slack v. Sharpe, 8 Adol. & E. In Hammond v. Thompson, 168 366, Patteson, J., says that "rent Mass. 531, 47 N. E. 137, as before accrues when it becomes due, and stated (ante, notes 146, 159), it was at no other time." held that the rent "accrued" on 160 2 Piatt, Leases, 116; Clun's the last day of the month though not Case. 10 Coke, 128 b. payable till the next day, the lease § 172 TIME AT WHICH DUE. 1039 c. Ascertainment with reference to calendar year. When the rent is made payable quarterly or semi-annually, this ordinarily means at intervals of a quarter or half year, calculated from the date of the lea;se and not from the begianing of the calendar year.163 The lease may, however, call for another construc- tion.! "* If specific days of the calendar year are named for pay- ment of rent, the first installment of rent will become payable on the first of such days which occurs after the commencement of the tenancy, irrespective of the order in which the days may be named by the lease.^^'s Where a lease, made on the fourteenth day of a certain month, provided that the lessee should hold "from the first day of that month," and that rent was to be paid "on the last day of each and every month," the rent was regarded as payable on the last day of each calendar month during the term.i^^ d. At end of term. In case the lease merely states the aggre- gate amount of the rent, without any statement as to the dates making it "payable after the term- payable quarterly," it was held, con- ination of each month." It was strulng the lease as a whole, that held that a conveyance on the last the rent was payable on the quarter day of the month terminated the days on which rent in that city is tenancy, it being at will. If the ordinarily payable. Wolf v. Merritti conveyance had been on the next 21 Wend. (N. Y.) 336, 34 Am. Dec. day, the case would have presented 238. the question, referred to in the lexL, les Hill v. Grange, Plowd. 164, 171; whether the rent was due on the last Gilbert, Rents, 50 ; 2 Piatt, Leases, day of the month, so that the lessor's 114. right thereto would not be affected loo McGlynn v. Moore, 25 Cal. 384, by a conveyance after the end of the 85 Am. Dec. 133. But in Com. v. month. In Ordway v. Remington, Contner, 21 Pa. 266, where a lease 12 R. I. 319, 34 Am. Rep. 646, it was in terms for a certain term seems to be thought that a quarter's from the first day of a month prev- rent, though specified to be paid ious to the month of its execution, December 1st, could be regarded ai3 at a specified annual rent, payable due on that day, for the purpose of semi-annually in advance, and the an attachment then levied, if the first half-yearly payment was made quarter could be computed as end- on the day of the date of the lease, ing November 30th. it was held that rent began to run 163 2 Rolle, Abr. 450; Gilbert, from the date of the lease, and not Rents, 50. from the date named as the com- 10* Thus, where premises in New mencement of the term, since the York city were demised for seven fact that the term was calculated months "at the yearly rent of $300, from the previous date named did 1040 RENT. § 172 on which it shall be paid, or the periods by which it shall be cal- culated, it is payable, in case the demise is for a year or for less than a year, at the end of the term and not before,i«" unless tliei'i' is a stipulation or custom to the contrary.^®* Presumably, likewise, in case the demise is for more than a year, and a cer- tain sum is named as rent for the whole period, without the nam- ing of any time for payment, no part of this sum becomes pay- able till the end of the term.^*' The cases above cited, to the effect that if there is no state- ment as to the time of payment or as to the periods by which the rent is to be computed, it is payable at the end of the term, are not in strict accordance with the definition of a rent usually given as a "periodical'' payment, but there is, it seems no reason that rent may not be payable in a lump sum as well as in installments. At common law, in the case of a lease for a year, the whole rent would necessarily, unless it is otherwise provided, be payable at the end of the year, rent being regarded as issuing yearly out of the premises. e. Rent payable in advance. Much more frequent than a pro- vision that rent shall be paid on a day subsequent to the end of the period during which it is earned is one that it shall be paid on the first day of the period during which it is to be earned. In England this is termed a "forehand" rent, while in this coun- try it is merely said, in such caso, that the rent is payable "in advance." Such a stipulation is perfectly valid,!^" and a cus- tom for rent to be paid in advance has in England been regarded as binding.'"' Whether tlio instrument of lease contains a stip- not start rent running before the io9 See Indianapolis, D. & W. R. tenancy was actually created. Co. v. First Nat. Bank, 134 Ind. 127, 167 Watson V. Penn, 108 Ind. 21, 8 33 N. B. 679; David Bradley & Co. N. E. 636, 58 Am. Rep. 26; Tignor v. v. Peabody Coal Co., 99 111. App. 427. Bradley, 32 Ark. 781; McFarlane v. ito gee London & Westminster V."illi.a.ms, 107 111. 33', MenougJi's Loan & Discount Co. v. London & N. Appeal, 5 Watts & S. (Pa.) 432, 30 W. R. Co. [1893] 2 Q. B. 49; Hopkins Am. Dec. 334; Duryee v. Tui-ner, 20 v. Helmore, 8 Adol. & E. 463; Giles Mo. App. 34. V. Comstock, 4 N. Y. (4 Comst.) 270; 168 Elmer v. Sand Creek Tp., 38 Hllsendegen v. Scheich, 55 Mich. Ind. 56; Indianapolis, D. & W. R. Co. 468, 21 N. W. 894. V. First Nat. Bank, 134 Ind. 127, 33 "i Buckley v. Taylor, 2 Term R. N. E. 679; Tignor v. Bradley, 32 600; Calhoun v. Atchison, 67 Ky. (4 Ark. 781. See ante, notes 143, 144. Bush) 261, 96 Am. Dec. 299. § 172 TIME AT WHICH DUE. 1041 ulation to this eifect is a qviestion of its construction, having reference to the circumstances under which it was made.^'^^ The fact that the first installment of rent is required to be paid on the first day of the term has been held not to show that the suTjsequent installments are to be paid in advance/ ''^ al- though it would seem to be an indicatioik to that effect.^'''' "Where a lease provided that the rent should be paid "in advance, if required," the rent was due in advance, it was held, but no proceeding could be instituted for its collection till after de- mand.i"^ i'2 A lease for a term to com- than a month after the date of the mence on October 20th, with rent lease, and contained a clause "the payable "on the 20th day of each lessee yielding and paying the year- and every month," was held not to ly rent in monthly payments" of a require payment in advance. Castle- certain amount, "commencing No- mau V. Du Val, 89 Md. 657, 43 Atl. vember 1st," it was held that the S2]. word "commencing" evidently re- Where a lease for ten years pro- ferred to the payment and not to the vided for payment, for the first six term, and the rent was payable years, of a certain amount monthly, monthly in advance, in advance, and that the rent for A provision for an annual rent, the last four years should be de- payable in monthly installments on termined by arbitration, it was held the first day of each month during that the rent for the last four years, the term, was held not to require when so determined, was intended to payment in advance. Goldsmith v. bo paid, like the other, monthly In Schroeder, 93 App. Div. 206, 87 N. advance. Stose v. Heissler, 120 111. Y. Supp. 558. Compare Sickels v. 433, 11 N. E. 161, 60 Am. Rep. 568. Shaw, 37 Misc. 601, 76 N. Y. Supp. In Deyo v. Bleakley, 24 Barb. ^N. 319. Y.) 9, where the lease was "from the iTsLiebe v. Nicolai, 30 Or. 364, 48 first day of April next" for the Pac. 172; Holland v. Falser, 2 Star- term of five years, at a yearly rent kie, 161. Compare Stose v. Heis- payable "in equal quarter-yearly sler, 120 111. 433, 11 N. B. 161, 60 payments on the first days of April, Am. Rep. 563. July, October and January in each m Joslin v. Jefferson, 14 U. C. C. year," it was held that in view of P. 260. See Finch v. Miller, 5 C. B. the privileges given the lessee by 428, where it was held that a stipu- the lease and the evident anxiety of latlon that a quarter's rent should the lessor to secure the rent, It was be paid on taking possession, and payable in advance on each of the that this should be allowed the les- days named. see for the last quarter's rent, was In Ellis V. Rice, 195 Pa. 42, 45 In effect a stipulation for a "fore- Atl. 655, where the lease provided hand" rent. that the rent paying period should its London & Westminster Loan not begin till November 1st, more £ Discount Co. v. London & N. W. L. and Ten. 66. 1042 RENT. J 172 Oral evidence is uot admissible to show that rent not stated to be payable in advance is so payable,"^ though it is, it seems, admissible for the purpose of aiding in the construction of the lease in this regard.^ '^'' An agreement by the lessee, made after the lease, to pay rent in advance, if not supported by any consideration, is invalid.^"'* And it would seem that the same is true of an agreement by the lessor to waive, as to future payments, a requirement in the lease of payment in advance.^'-' f. Option as to time of payment. It has been decided that when rent was expressed to be payable "either quarterly or monthly," the landlord, and not the. tenant, had the option to decide at what intervals it should be payable.^*" And such is the necessary construction of a provision for payment at certain intervals, or at briefer intervals, if demanded, or if required.'*' But when the rent was payable on a day named or within a cer tain period thereafter, the alternative was regarded as for the benefit of the tenant.' ^- g. Acceleration of rent. Occasionally the lease provides that the rent for the whole term shall immediately become payable on a certain contingency, as, for instance, upon the insolvency or bankruptcy of the tenant,' ^^ his assignment for the benefit of creditors,'** the removal of his personal property from the prem- ises,'*^ or his failure, to pay an installment of rent when due,'*^ R. Co. L1893] 2 Q. B. 49. See Clarke have terminated the tenancy by V. Holford, 2 Car. & K. 540. notice. iToKistler v. McBride, 65 N. J. i.so Pemberton v. Van Rensselaer, Law, 553, 48 Atl. 558; Castleman v. -j^ -^vend (N Y ) 307 Du Val, 89 Md. 657. 43 Atl. 821. ,,, ^^^^^ ^\^^^^ ^^ g.^^ 299. J"vf o""'^?,/- ^T"V.\. T. I^ondon & Westminster Loan & (N. Y.) 9; Ellis v. Rice, 195 Pa. 42, ^. ^ _ ^ , „ „ nr o !>; Atl fi-t; Discount Co. v. London & N. W. R. rt„ I , w ,, .c 1.' Co. [1893] 2 Q. B. 49; Stowman v. iTsHasbrouck v. Winkler, 48 ^. ,. , , ,„,> ^ ,» „ i.> T T ..01 <. »i, 00 Landis, 5 Ind. 430. See Musewald J. Law, 431, 6 Atl. 22. ^ , „^ „. „^^ _^ ,., ^ ,,„T TIT-, TTTi,-4. I, J o « Ti V, Sceker, 51 Misc. 355, 101 N. Y. 179 In Wilgus V. Whitehead, 89 Pa. ,«,... ^ ,.> XV, i 1 Supp. 287. 131, it was held that an oral agreo- ment that rent should no longer be '^^Clun's Case, 10 Coke. 128 u. paid in advance was valid. The "^ Piatt v. Johnson, 168 Pa. 47, 31 court apparently regards the agree- ^^^- ^^^' ^'^ ^^■' ^^- "■^P- °' '■ ment as supported by a considera- i^Soper v. Fane, 31 Can. Sup. Of. tlon because, at the time the agree- 572. ment was made, the lessee could la's Goodwin v. Sharkey, 80 Pa. § 172 TIME AT WHICH DUE. 1043 and such a provision has been regarded as valid.' «• It might, however, in the particular jurisdiction, be regarded as invalid by reason of the provisions of the bankrupt or insolvent laws forbidding preferences.!*^ Many jurisdictions have adopted the doctrine that, if one of the parties to an executory contract renounces it before the time for performance, or renders it impossible of performance, the other party may treat this as an "anticipatory breach" and may immediately sue therefor,^** and the question has occasion- ally arisen whether this doctrine applies in the case of a covenant lor rent, with which, before the time for payment, the lessee an- nounces that he will not comply, or compliance with which he renders impossible. In one state this doctrine was applied in a ease in which a receiver appointed for the lessees repudiated the lease, it being held that the lessor had immediately a claim for damages which he might assert against the assets in the hands of the receiver,!"" and a like view was taken where the lessee, a corporation, put it out of its power to pay rent in the future by instituting voluntary proceedings for a dissolution, the claim for damages being there rpoarded as provable, under the local 149; McAnnlny v. Miller, 19 Pa. Smith, 29 U. C. C. P. 109; Lazier v. Super. Ct. 406. Henderson, 29 Ont. 673; In re Kos 180 Hart V. Wynne (Tex. Civ. kins, 1 Ont. App. 379. As lo tlio App.) 40 S. W. 848; Teufel v. Row- questionable validity of a provision an, 179 Pa. 408, 36 Atl. 224. making all the rent due upon tho 187 In Mitchell v. McCauley, 20 bankruptcy of the tenant, see cases Ont. App. 272, it is held that a stip- cited post, note 1309. ulation that the rent for the current iso Hammon, Contracts, 895, 897 ; year shall be immediately due If ex- Wald's Pollock, Contracts (Willis- ecution issues against the lessee's ton's Ed.) 355 et seq. goods is not severable, and so the iso Minneapolis Baseball Co. v. benefit thereof does not pass to th'e City Bank, 74 Minn. 98, 76 N. W. grantee of the leasehold in part. 1024, distinguishing Wilder v. Pca- The theory of th« decision is that, body, 37 Minn. 248, 33 N. W. 852, the stipulation involving a eontin- where it was decided that a rlairr gency, it is a condition and so not for rent accruing subsequently to an apportionable. It is difBcult to see assignment for creditors by the !os how the mere Introduction of words sees, a firm of individuals, was noi of contingency, such as "if," into a provable against the assigned estate, covenant, can make it a condition. since it was contingent, and since 188 See Tew v. Toronto Sav. & the partners remained individually Loan Co., 30 Ont. 76; Young v. liable. 1044 RENT. § 172 statute, against the corporate assets. ^^^ Likewise, the lessee was subjected to liability in damages when he made an assign- ment for creditors and the assignee abandoned possession, the lessor having improved the premises on the strength of the les- see's contract to take the lease which was subsequently made.i'^ In two states, on the other hand, it has been decided that the fact that the tenant abandons the premises and notifies the land- lord that he will not abide by the terms of the lease does not enable the latter to maintain an action for rent prior to the time originally named for its payment,^^* and the same view has been adopted in Canada.'"^ h Time of day for payment. The tenant may make a valid payment of rent at any time of the day on which, by the lease, ex- pressly or inferentially, the rent is payable,!''^ but he is not bound to pay it till midnight of that day, and he is not in default till the beginning of the next day.^**' That the landlord makes a demand for the rent at sunset, in order to establish his right to re-enter for breach of the covenant to pay rent, as hereafter ex- plained,!'^ does not affect the tenant's right to defer payment of the rent till midnight.^"* The doctrine, above indicated, that rent, though it may be paid at any time on the day named for payment, is not actually due till midnight following that day, is applied, as elsewhere stated,^^^ under particular circumstances, to determine the per- son entitled in case the reversioner dies upon the rent day. It 191 Kalkhoff V. Nelson, 60 Minn. i»6 Duppa v. Mayo, 1 Wms. Saund. 284, 62 N. W. 332. 287, and note (17) ; Cutting v. Derby, i»2 In re Reading Iron Works, 150 % W. Bl. 1077; Leftley v. Mills, Pa. 369, 24 Atl. 617. Apparently the 4 Term R. 170; Dibble v. Bowater, decision would have been the same 2 El. & Bl. 564; Sherlock v. Thayer, without reference to the previous 4 Mich. 355, 66 Am. Dec. 539; Dal- contract. ton v. Laudahn, 27 Mich. 529; Ham- i93Nlcholes V. Swift, 118 Ga. 922, mond v. Thompson, 168 Mass. 531. -45 S. E. 708; Miller v. Benton, 55 47 N. E. 137; Sweet v. Harding, 19 Conn. 529, 13 Atl. 678, 3 Am. St. Vt. 587 (semble). Rep. 70. 197 See post, § 194 f (1). 194 Connolly v. Coon, 23 Ont. App. iss See New York Academy ot 37. Music V. Hackett, 2 Hilt. i,N. Y.) issciun's Case, 10 Coke, 127 b; 217. Dibble v. Bowater, 2 El. & Bl. 564; i99 See post, § 180 b (6). Comyn, Landl. & Ten. 219. § 172 TIME AT WHICH DUE. 1045 has also been applied to relieve the tenant from liability, when the tenancy was terminated by the act of the landlord in the course of the rent day,!*'*" and an evictioai under a paramount title occurring on that day has been held to relieve the tenant-^^®'' i. Crop rent. The rule that rent is to be paid at the end of the term, or at the end of each of the periods by which it is to be calculated, has in some cases been applied when the rent was payable not in money, but in crops, with the result of postponing the time for payment till the end of the year, without reference to the time at which the crops may have matured.^"" By other decisions the share of the landlord in the crops, representing the rent due him, must be delivered to him within a reasonable time after the maturity of the crop,2oi and this may, it seems, require a division of parts of the crop as they are gathered, without waiting for the gathering of the whole crop.^o^ j. Rent falling due on holiday. If the day on which an in- stallment of rent falls due imder the lease happens to be Sun- day, the tenant has the whole of the next day in which to pay it,2"^ while if the rent day is some other legal holiday, he is bound 190H Hammond v. Thompson, 168 crop is harvested or gathered. Lam- Mass. 531, 47 N. E. 137. See ante, berton v. Stouffer, 55 Pa. 284; Jar note 162. dan v. Bryan, 103 N. C. 59, 9 S. E. 199b Smith V. Shepard, 32 Mass. 135; Brown v. Adams, 35 Tex. 447. (15 Pick.) 147, 25 Am. Dec. 432. 202 Smith v. TindaU, 107 N. C. 88, 2w Dixon V. Nicolls, 39 111. 372, 89 12 S. E. 121. See post, § 253 e (2). Am. Dec. 312; Boyd v. McCombs, 4 Pa. Under a provision that the rent 146; King v. Bosserman, 13 Pa. shall be due "when the crop m.a- Super. Ct. 480; Ostner v. Lynn, 57 tures, or any portion of it shall be Mo. App. 187; Nowery v. Connolly, fit for market," it was held tha* the 29 U. C. Q. B. 39. rent was due when the oats were in 2M Harrison ir. Clifton, 75 Iowa, stack, the com was ripe, and the 736, 38 N. W. 406; Toler v. Seabrook, tenant had gathered a part of it 39 Ga. 14; Caruthers v. Williams, and was feeding it, and that the 58 Mo. App. 100; Holt v. LIcette, 111 crop need not be ready for market, Ga. 810, 35 S. E. 703 (lease providing since otherwise the tenant could in- that rent to be paid "out of" crop) ; definitely postpone the time for Mouser v. Davis, 11 Wkly. Law payment. Hull v. Stogdell, 67 Iowa, Bui. (Ohio) 249, and post, § 251, 25 N. W. 156. 253 e (2). Presumably, this is 203Warne v. Wagenor (N. J. Eq.) the equivalent of statements that 15 Atl. 307; Byers v. Rothschih', 11 the crop rent is payable when Uie Wash. 296, 39 Pac. 688; Boehm v. 1046 RENT. § 173 to pay it on that day, in the absence of some controlling statutory provision.20* That the rent day falls on a Sunday does not, how- ever, it has been decided, make the next day the day on which it is to be regarded as falling due, for purposes other than the enforcement of the tenant's liability for its payment.*"''' i^ 173. Amount of the rent. a. Must be certain or capable of ascertainment. The amount of rent payable for each portion of the term must be certain or capable of reduction to a certainty .^oe In the absence of such certainty, no claim for rent, properly so called, can be asserted, though the landlord can visually, in such case, provided the lease is not under seal, recover the value of the use and occupation. The amount need not be ascertainable at the time of the lease, provided it can be ascertained before the time for payment.*"''^ As an ordinary instance of rent, the amount of which is ascer- tainable at the time for payment, though not at the time of the demise, may be mentioned a lease of land for agricultural purposes, the amount to be a certain proportion of the crop.*"* So the rent of a brickyard may be dependent upon the amount of bricks made.*"" And on a demise of land for mining pur- Rlch, 13 Daly (N. Y.) 62; Walton v. ot pounds for each twenty acres of Stafford, 162 N. Y. 558, 57 N. E. 92, land, it was held that distress would 76 Am. St. Rep. 349. lie, the value of the cotton being as- 201 Walton V. Stafford, 162 N. Y. certainable. Brooks v. Cunning- 558, 57 N. E. 92, 76 Am. St. Rep. 349. ham, 49 Miss. 108, distinguishing 205 Craig v. Butler, 83 Hun, 286, 31 Briscoe v. McElween, 43 Miss. 556, N. Y. Supp. 963. where the reservation was of ser*'- 2o« Co. Litt. 142 a; Gilbert, ices of an undefined extent. Rents, 9. 209 Daniel v. Gracie, 6 Q. B. 145: As to ascertainment of amount in Reg. v. Westbrook, 10 Q. B. 78. case of holding over by consent, see When the lease pledged the ner post, § 210 c. profits of the premises for the rent. 207 Co. Litt. 96 a; Selby v. Greaves, and declared that the lessee entered L. R. 3 C. P. 594; Walsh v. Lons- into no other stipulation in regard dale, 21 Ch. Div. 9; McFarlane v. to rent, it was held that the lessee Williams, 107 111. 33; Dutcher v. Cul- was not liable for any rent in the ver, 24 Minn. 584. absence of net earnings. Lynch v. 208 See post, § 253. Onondaga Salt Co., 64 Barb. (N. Y.) When the reservation was of a 558. bale of cotton of a certain number § 173 The amount. 1047 poses, the compensation of the owner oJ:' the land is usually meas- urable l)y a royalty on the minerals extraeted,2io and on a de- mise for lumber purposes the rent may be determined by the amount of lumber cut.^n It has been decided that the amount of rent for each year, if not to exceed n sum named, may be made determinable by the lessor alone.-' - b. May be fluctuating. As appears from the above illustra- tions, the rent is sufficiently certain, although it fluctuates or varies from period to period.-' '• So rent may, by the terms of the lease, l)e made to vary with the price of wheat,-' ^ with the income which the tenant may derive from the use of the prem- ises,^'" with the amount of the products which he may obtain by a particular use thereof,^^® or with the various uses which he may make thereof.^''' And on a lease of a mill the rent may be made aioSee Daniel v. Gracie, 6 Q. B 145; Edwards v. Rees, 7 Car. & P. 340; Higgins v. California Petrol- eum & Asphalt Co., 109 Cal. 304, 41 Pac. 1087; Williams v. Summers, 45 Ind. 532, 15 Am. Rep. 270; Watson Coal & Min. Co. v. Casteel, 73 Ind. 296; Waters v. Griffith, 2 Md. 326; Reed v. Beck. 66 Iowa, 21, 23 N. W. 159; Lennox v. Vandalia Coal Co., 66 Mo. App. 560; Mclntyre v. Mc- Intyre Coal Co., 105 N. Y. 264, 11 N. E. 645; Genet v. Delaware & H. Can- al Co., 58 Hun, 492, 12 N. Y. Supp. 572. 211 See Balrd v. Milford Land & Lumber Co., 89 Cal. 552, 26 Pac. 1084, 27 Pac. 296; Stevens v. Haskell, 70 Me. 202. 212 Ocean Grove Camp Meeting Ass'n V. Sanders, 67 N. J. Law, 1, 50 Atl. 449. 213 See Ex parte Voisey, 21 Ch. Div. 442, per Jessel, M. R. 214 Kendall v. Baker, 11 C. B. 842. 215 So in Rayburn v. Mason Lun>- ber Co., 57 Mich. 273, 23 N. W. 811, the rent was to be half "of all tolls and money that may be earned by the uses of said dam for driving logs or other purposes." This was held to include not only tolls but other earnings from log driving which could be traced to the dam. In Hardy v. Briggs, 96 Mass. (14 Allen) 473, rent was to be adjusted with reference to "income" to the lessee from furnishing power from the leased premises to adjoiniug buildings, and it was held that, in view of the circumstances, gross and not net income was evidently in- tended. In Long V. Pitzimmons, 1 Watts & S. (Pa.) 530, on a demis'i of a mill, a certain portion of the tolls was reserved as rent, and the lessee was held liable for such a pro- portion of the tolls as he would have received had he done the mill- ing properly and received the full amount from his customers. =1'' As in the ordinary case of a rent consisting of a certain portion of the crops. Post, § 253. So the rent may consist of a certain portion of the products of a manufactur- ing plant on the premises. How- land V. Forlaw, 108 N. C. 567, 13 S. E. 173. 217 See post, § 173 e. 1048 RENT. § 173 to vary with the number of looms run.^is Likewise, it may be stipulated by the lease that the rent shall be reduced in a cer- tain contingency,^^" or that it shall be increased to a certain amount in case the lessor makes certain improvements.^^o c. Construction of reservation as to amount. Occasionally the language of the lease, as regards the amount of the rent, is obscure, and calls for construction with reference to the sur- rounding circumstances, to determine the intention of the par- lies. This is particularly apt to be the case when the amount payable from time to time is to be determined by reference to extrinsic facts. ^^^ Or the lease may be obscure as regards the 218 Walsh V. Lonsdale, 21 Ch. "of 10% yearly on their cost," and Dlv. 9. It was held that such additional 2i» Lacy Bros. & Kimball v. Mor- rent was not due until notice was ton, 76 Ark. 603, 89 S. W. 842. given to the lessee of the cost of In Copeland v. Goldsmith, 100 the additional buildings, such cost Wis. 436, 76 N. W. 358, a provision being exclusively within the lessor's for the reduction, "for the term of knowledge. the lease," of the rent of the offices As to an agreement for increase leased, in case the rent of other of- of rent in case of drainage of agri- fices was reduced, was held to ap- cultural lands being done by the les- ply only to rent accruing after the sor, see Ex parte Voisey, 21 Ch. Div. reduction of the rent of other offices, 442, 456, where Jessel, M. R., says: and not to entitle the lessee to re- "It very often happens that when cover from the lessor the amount of the landlord does the drainage he the reduction on account of rent puts in a stipulation that he shall previously paid by him. receive a certain percentage on what In McGill V. Proudfoot, 4 U. C. Q. he lays out, and he may be entitled B. 33, it was held that a "covenant"' to drain even without the consent of as to the reduction of rent in case the tenant, and to cause the tenant of fire was binding on a transferee to pay an increased rent." of the reversion, assigns being 221 Where the lease provided for named. It seems questionable, how- the ascertainment of the rent by ever, whether the fact that the res- reference to the number of acres in ervation of rent names a less the tract leased "to be hereafter amount as to be paid upon a certain measured to ascertain amount of contingency can properly be re- the same," noncultivatable land be- garded as a "covenant" by the les- tween high and low-water mark was sor to reduce the amount. regarded as intended to be included, 220 Weed V. Crocker, 79 Mass. (13 but not land previously condemned Gray) 219. There the lease provid- for a railroad right of way. Wil- ed that the lessor should erect cer- liams v. Glover, 66 Ala. 189. tain buildings for which the lessee Where a lease, for ninety-nine agreed to pay an additional rent years, of water power at a certain § 173 THE AMOUNT. 1049 exact date at which rent is to begin.222 A plain inconsistency or repugnancy in the statement of the amount of rent is to be corrected, as is any other inconsistency in any instrument.^*^ rate, provided that this rate should be kept on the premises. Beadle v. be readjusted after seven years at Monroe, 68 Hun, 323, 22 N. Y. Supp. the same rate per horse power as 981. "was asked of other persons rent- 222 Where a lease provided that it ing" it was held that, if at the end should begin thirty days after the of the seven years there were no completion of a building on the "other persons renting," the rent premises, and the lessee was to take should, in view of the extensive im- possession thirty days after such provements made by the lessee, look- completion, it was held that the ing to a quasi permanent occupation, rent did not begin to run till thirty remain as before. Lamb v. Constan- days after completion, although he tine Hydraulic Co., 59 Mich. 597, 2fi took possession immediately on cora- N. W. 785. pletion, he doing this by direction Where the rent was to be a certain of the lessor. Patterson v. Glass per cent of the cost of a building to Co., 63 Mo. App. 173. On the other be erected by the lessor, it was hand, a provision that the rent held that payments for extra night should not begin till certain altera- work could not be considered in de- tions were made was held to be termining the cost. Bradley v. Met- waived by the tenant's taking of pos- ropolitan Music Co., 89 Minn. 51G, session upon the landlord's state- 95 N. W. 458. ment that the alterations were fln- A provision for a reduction of ished and that rent would then be- rent "for the term of one year only' gin to run. O'Brien v. Jaffe, 88 N. Y. in case the lessee failed to obtain a Supp. 1009. liquor license was construed as ap- When it was provided that the plying whether the failure was to rent should commence when the obtain the license for the first or premises were "ready for occu- the second year. Rea v. Ganter, 152 pancy," the building in which they Pa. 512, 25 Atl. .539. were located being, as recited in the Where one agreed to pay a speci- lease, in course of construction. It fied sum for the occupancy of a was held that "ready for occupancy" store till another store was com- meant ready for entry by the lessee pleted, he was held to be liable for in order to fit them for his business, that sum and no more, without ref- and did not mean fitted with fixtures erence to delays in the completion of necessary for the particular busi- the other store. D'Arcy v. Martyn, ness. Gerry v. Siebrecht, 88 N. Y. 03 Mich. 602, 30 N. W. 194. Supp. 1034. An agreement to pay ten dollars That the term named in the lease for every boat kept on the premises was to be computed from a date and used for fishing was held to im- prior to the lease was held not to pose such liablility irrespective of show, of itself, that the rent was to whether the boats belonged to the be calculated from that time, lessee or he merely allowed them to Com. v. Contner, 21 Pa. 266. 1050 RENT. § 173 Questions as to the construction of particular provisions for the payment of rent in a share of the crops are elsewhere con- sidered.2^* (1. Determination by appraisement. Leases in this country • laitf frequently provide for a readjustment of the rent at cer- tain intervals during the term, this usually taking the form of a stipulation for an appraisement of the value of the premises, the rent to be a certain percentage of such value. If an appraisement is made by appraisers appointed as pro- vided by the lease, and there is no violation of such provisions, and no fraud nor mistake other than a mere error of judgment, the appraisement is conclusive on the parties, although the ap- praisers adopt an improper method of arriving at their conchi- sions.225 When the lease called for an appraisement to be made on h certain day or as soon thereafter "as practicable," it was de- cided that an appraisement was not "practicable" at a time when the lessor's interest had been sold on foreclosure, and the time of redemption had not expired, it appearing that such in- terest would probably be absolutely vested in some person within a month.^^" One's right to call for an appraisement is not, Jt has been held, lost by a failure to call for it promptly.^^'' The appraisers are ordinarily, by the terms of the lease, to be appointed by the parties thereto, but the covenant for ap- praisement apparently runs with the land, and the parties who are to name the appraisers are those who are at the same time the holders of the reversion and leasehold respectively .^^s Coftse- 2-''' When the lease reserved in 225 Goddard v. King, 40 Minn. 164, terms a rent of f 2,700 annually, a 41 N. W. 659; Board of Education v. covenant to pay $625 quarterly was Frank, 64 III. App. 367; Stose v. regarded as being written by mis- Heissler, 120 111. 433, 11 N. E. 161, take for $675. Smith v. Blake, 88 60 Am. Rep. 563. See, also, the Me. 241, 33 Atl. 992. And in a lease cases bearing upon the iixing of rent for five years in which the lessees for the purposes of a renewal lease agreed "to pay $4.50 per acre, the by means of appraisement, post, § first payment to be due" on a date 228. named, the word "yearly" being evi- 220 Spann v. Eagle Mach. Works, dently omitted, the yearly rent was 87 Ind. 474. held to be $4.50 per acre, and not 90 227 Wright v. Hardy, 76 Miss. 524. cents. Dodd v. Mitchell. 77 Ind. 388. 24 So. 697. '2* See post, § 253. 228 Worthington v. Hewes, 19 Ohio § 173 THE AMOUNT. 1051 cjuently, the original lessee may be liable, by reason of his cove- nant to pay rent, for rent the amount of which is fixed by an appraisement in which he had no part,^^* as may an assignee of the leasehold who expressly assumes liability for the rent and thereafter reassigns.^^'' The refusal of one of the parties to unite in appointing ap- praisers was considered to be a "disagreement" within a pro- vision that the judges of a certain court should appoint the ap- praisers in case of disagreement of the parties.^si It has been held that when the lease provides that each party is to select an appraiser, and that the two appraisers thus selected shall select a third, an award made by appraisers, one of whom is the busi- ness adviser of the party selecting him, is invalid.^** But the amount of rent may, it seems, be fixed by parties interested, if this is in accordance with a stipulation in the lease, and the limits within which the rent must range are named.^^s There is authority to the elt'ect that the parties are not en- titled to notice of the meeting of the appraisers, as in the case of an arbitration,^^* while on the other hand it was decided in one case that each party was entitled to a hearing before the making of the appraisement, provided this was reasonably prac- ticable.^*'" All the appraisers must unite in the appraisement, and an appraisement made by a majority only is insufftcient.^^s If the appraisers fail to agree, it is said, the lessor is not bound to seek other appraisers, but may recover reasonable rent.^^^ St. 66; Young v. Wrightson, 11 Ohio ing Ass'n v. Sanders, 67 N. J. Law, Dec. 104. 1, 50 Atl. 449, where the stipulation 229 See Worthington v. Hewes, 19 was that the rent, termed an "as- Ohlo St. 66, where, however, it was sessment," should be fixed each year held that the covenant to pay rent by resolution of the lessor associa- w^as not to be construed as binding tion. the lessee for rent after he had as- as* Stose v. Heissler, 120 111. 433. signed, the lease being for ninety- 11 N. B. 161, 60 Am. Rep. 563; Nor- nine years, renewable forever. See ton v. Gale, 95 111. 533, 35 Am. Rep. post, note 653. 173. 230 See Wilson v. Lunt, 17 Colo. 235 Worthington v. Hewes, 19 Ohio App. 48, 67 Pac. 627. St. 66. 231 Worthington v. Hewes, 19 Ohio 230 Stose v. Heissler, 120 111. 433. St. 66. 11 N. B. 161, 60 Am. Rep. 563; Lowe 232 Pool V. Hennessy, 39 Iowa, 192, v. Brown, 22 Ohio St. 463. 18 Am. Rep. 44. 237 stose v. Heissler, 120 111. 433, 233 See Ocean Grove Camp Meet- 11 N. E. 161, 60 Am. Rep. 563. 1052 RENT. § 173 If one party refuses to select an appraiser, as required by the lease, the other party may proceed in equity for appraisement, in which case the appraisement may be referred to a master.^ss An action for use and occupation will not, however, lie, if the tenant offers to join in appointing appraisers as required by the lease,''^^* nor can the lessor, in such case, have the rent fixed by a court of equity .^*° Where one of the parties was an infant at the time at which a new appraisement was called for by the lease, and hepce could •not appoint appraisers, the previous rent continued, it was held, till it was readjusted by a suit in equity .^^^ A provision for the appraisement of the "real estate" for the piirpose of determining the rent has been held, in view of the language of the whole lease, not to call for the inclusion of im- provements erected by the lessee under an agreement that they should belong to the lessors at the end of the term.^^s And so a provision for the appraisement of the "ground" does not in- clude the improvements. ^''3 In determining the value of the premises for this purpose, their value as if they were owned in fee and were not subject to any lease is to be taken. ^^^ Accre- tions to the land formed by the recession of a river constituting one of its boundaries should be, it has been held, considered in making the appraisement. ^^^ The value or lack of value of the premises to the lessee for the residue of the term cannot be con- sidered on the question of their value for the purpose of ap- praisement.^*" 233 Lowe V. Brown, 22 Ohio St. Sherman v. Cobb, 15 R. I. 570, 10 463; Springer v. Borden, 154 111. 668, Atl. 591. 39 N. E. 603; Id., 210 111. 518, 71 N. =*oBiddle v. McDonough, 15 Mo. E. 345; Tobey Furniture Co. v. -^^PP- ^32. Rowe, 18 111. App. 293; Kelso v. Kel- ^"Holmes v. Shepard, 49 Mo. 600. 242 Texas & P. R. Co. v. Society for ly, 1 Daly (N. Y.) 419. 239 Sherman v. Cobb, 16 R. I. 82, 12 Relief of Orphan Boys, 56 Fed. 753. 243 Lowe V. Brown, 22 Ohio St. 463. Atl. 232. In a previous decision in ,,, springer v. Borden, 210 111. the same case, it was adjudged that, g^g^ 71 jg-. E. 345; Columbia Theatre though the lease requires the assent Amusement Co. v. Adsit, 211 111. 122, of all the appraisers and a subse- 7I N. E. 868. See Philadelphia Li- quent agreement requires the assent brary Co. v. Beaumont, 39 Pa. 43. of two only, a submission to the ap- 245 Allen v. St. Louis, I. M. & S. R. praisers named in the agreement is Co., 137 Mo. 205, 38 S. W. 957. under the agreement and may be re- 246 Springer v. Borden, 210 111. 518, voked prior to the award. See 71 N. E. 345. § 173 THE AMOUNT. ]053 e. Additional or penal rent. In Ejigland a lease, especially one of agricultural land, quite frequently, in connection with a provision that the tenant shall reffain from certain acts, such as ploughing up pasture,^*^ converting land into tillage,^** removing produce from the premises,^*" sow^ing a particular crop,25o or doing so an excessive number of years in succession,*^' or taking hay without manuring,252 contains a stipulation that, in case of the breach of such a provision, the lessee shall pay an increased rent. Such a stipulation may provide for an increase of rent proportioned to the extent of the breach, as when it is agreed that, if the lessee ploughs pasture land, he shall pay an increased rent proportioned to the amount ploughed,253 or it may provide for an additional rent without reference to the ex- tent of the breach, as when the lessee covenants to reside on the land,*''* or not to carry on a certain trade.*" Though such an increased rent, in case of a certain course of action on the part of the lessee, is frequently referred to as a "penal rent," the stipulation therefor is ordinarily regarded not as a provision for a penalty, *5^ nor even as one for liquidated damages,*^*^ but as merely a provision for a possible variation in the amount of the rent. Sometimes there is an agreement, not for an increased rent, but for the payment of a specified lump sum upon the breach by the lessee of his covenant, and this has 2*7 Skipworth v. Green, 8 Mod. 2^* Ponsonby v. Adams, 2 Brown 311; Aldridge v. Howard, 4 Man. & Pari. Cas. 431. G. 921. 255 Weston v. Metropolitan Asy- 2-i8Rpulston V. Clarke, 2 H. Bl. lum Dist, 8 Q. B. Div. 387, 9 Q. B. 563; Farrant v. Olmius, 3 Barn. & Div. 404; People v. Bennett, 14 Hun Aid. 692; Denton v. Richmond, 1 (N. Y.) 58. Cromp. & M. 734. 2=« Gerrard v. O'Reilly, 3 Dru. & 2*!>Legh V. Lillie, 6 Hurl. & N. War. 414; Jones v. Green, 3 Younge 165; Pollitt V. Forrest, 11 Q. B. 949. & J. 298; Manice v. Brady, 15 Abb. 250 Jones V. Green, 3 Younge & J. Pr. (N. Y.) 173. 298. 257 Manice v. Brady, 15 Abb. Pr. 251 Bowers v. Nixon, 12 Q. B. 558. (N. Y.) 173; Roulston v. Clarke, 2 252 Bowers v. Nixon, 12 Q. B. 558. H. Bl. 563; Pollitt v. Forrest, ll Q. 253 Skipworth v. Green, 8 Mod. B. 962. Consequently It is error lo 311; Aldridge v. Howard, 4 Man. & give the lessor, when suing on such G. 921; Birch v. Stephenson, S a covenant, merely the amount of Taunt. 469; Doe d. Darke v. Bow- damages sustained. Farrant v. 01 ditch, 8 Q. B. 973. mius, 3 Barn. & Aid. 692. J 054 RENT. § 173 been regarded as a pi-ovision for liquidated damages.^-'*' A stipu- lation in the lease for an increased rent or for the payment of a lump sum may, however, be construed as undertaking to im- pose a penalty. The fact that it is so expressly termed by the parties is a strong though not a conclusive reason for such a con- struction,259 and the fact that the increase in rent or the lump sum named is out of proportion to the actual damage resulting from the action of the tenant is also a decided indication that such is its character.''"' And so the fact that a single sum is named to secure the performance of various stipulations, the damages for the breach of which are necessarily different, tends to show that the provision is one for a penalty .^^i It has been decided that a provision of the lease in terms imposing "a pen- alty" of a certain sum, to be paid "in the nature of rent, '^ in addition to the rent named, on a breach of a merely personal covenant not to eno;age in a certain business o.n the premises, was a provision for a penalty and not for an increased rent.^^* If the lessee covenants not to do the act in question, "and if he does so" to pay the additional rent, he is entitled to do such act on paying the additional rent,*"^ and a like decision has been made when he covenanted not to do the act "under" the increased rent.*^* But if he covenants expressly not to do the act, he has no right to do it even though he does pay the stipu- lated additional rent,^^^ and even though there is a clause giving the lessor the right to re-enter for a breaeh.^"" A.nd so if he ex- 258 In re Mexborough, 47 Law T. .Jack v. Sinslieimer, 125 Cal. 563, 58 (N. S.) 516; Elphinstone v. Monk- Pac. 130. Compare Dermott v. Wal- land Iron & Coal Co., 11 App. Gas. lach, 68 U. S. (1 Wall.) 61, post, 332. note 268. 259 Wilson V. Love [1896] 1 Q. B. 263 Woodward v. Gyles, 2 Vern. 626; Pollitt V. Forrest, 11 Q. B. 962, 119; Attersol v. Stevens, 1 Taunt. 200 See Manice v. Brady, 15 Abb. 18.3. Pr. (N. Y.) 173; Elphinstone v. ao^Legh v. Lillie, 6 Hurl. & N. Munkland Iron & Coal Co., 11 App. 165. See Doe d. Antrobus v. Jepson, Cas. 332. 3 Barn. & Add. 402. 261 Willson V. Love [1896] 1 Q. B. 265 City of London v. Pugh, 4 626. Brown Pari. Cas. 395; French v. 262 Latimer v. Groetzinger, 139 Pa. Macale, 2 Dm. & War. 269. 207, 21 Atl. 22. For the case of a 266 Weston v. Metropolitan Asy- penalty imposed by the lease for va- lum Dist., 8 Q. B. Div. 387, 9 Q. B. cation of the premises by the lessee, Div. 404. invalid under the local statute, see § 173 THE AMOUNT. 1055 pressly covenants to do an act, with a stipulation that the rent shall be reduced if he does do it, he has no right not to do it though he pays the rent in full.^sr if there is a right of re- t'ntry on breach of the covenant, the lessor has the option either t.i re-enter or to demand payment of the increased rent.^es Where the lease authorized the lessor to terminate the tenancy by notice, and provided that, in such event, the lessee "or his assigns" might, on giving notice to the lessor, continue to hold at an increased rent, which increased rent the lessee covenanted to pay, the lessee was held to be liable for the increased rent, though the notice of intention to hold at such rent was given, not by him but by his assign. ^s* f. Change of amount by subsequent agreement — (1) Reduc- tion of rent. The amount of the rent may, according to de- cisions in this country, be reduced by an agreement between the landlord and tenant made subsequently to the demise.^^* Such an agreement must be supported by a sufficient consider ation,^^! and there are quite a number of cases in which the sufficiency of the consideration has been a subject of discussion. ■•!»' Hanbury v. Cundy, 58 Law T. give to the landlord the alternative (N. S.) 155. of re-entry or of demanding that 268 Weston V. Metropolitan Asy- the next year's rent of $3,000 be lum Dlst., 9 Q. B. Div. 405; Doe d. paid in advance. Dermott v. Wal- Antrobus v. Jepson, 3 Barn. & Adol. lach, 68 U. S. (1 Wall.) 61. 402. 260 Wall V. Hinds, 70 Mass. (4 A provision that if the tenant Gray) 256, 64 Am. Dec. 64. should assign or underlet, or should 2to That an agreement to reduce remove his goods and chattels from the rent was made under a mistake the premises, then, at the option of of law as to the right of redemption the landlord, the term should cease does not furnish grounds for re- and a re-entry on the premises be lief in equity. Norris v. Crowe, 206 had, and moreover, in either of said Pa. 438, 55 Atl. 1125, 98 Am. St. cases, one whole year's rent, namely. Rep. 783. $3,000, over and above the rents 271 wharton v. Anderson, 28 Minn, that had already accrued, should be 301, 9 N. W. 860; Hoopes v. Meyer, paid and should immediately bo- 1 Nev. 433; Goldsborough v. Gable, come due, was construed not to call 140 111. 269, 29 N. B. 722, 15 L. R. for $3,000 rent In addition to the for- A. 294; Id., 152 111. 594, 38 N. B. 1025; feiture in case of a breach of the Wheeler v. Baker, 59 Iowa, 86, 12 covenant, since the provision so con- N. W. 767; Bowditch v. Chickering, strued would have been invalid as 139 Mass. 283, 30 N. E. 92; Hasel calling for a penalty and not for an tine v. Ausherman, 87 Mo. 410; Coc increased rent, but it was held to v. Hobby, 72 N. Y. 141, 28 Am. Rep. 1056 RENT. § 173 A contract to reduce rent has been hxjld to be valid in this re- spect when made in consideration of the tenant's furnishiag further security for the rent.^'^ Likewise, a contract to ac- cept a certain proportion of the corn raised on the premises, in- stead of a certain number of bushels, as first agreedj^'s and one to take a less annual sum, this, however, to be paid for the les- sor's life instead of for the term of years named in the lease,^^'' , are both supported by a sufficient consideration. A mere prom- ise by the lessee not to "give up" the lease, provided the rent is reduced, is not, it seems, a sufficient consideration to support a promise to reduce the rent, since thq tenant has no right to give up the lease. In one case, however, this seems to have been regarded as a sufficient consideration.'''^^ There is, it would seem, on principle, a distinction between the case in which the tenant agrees to remain in actual occupancy of the property, and that in which he agrees merely not to give up the lease, since he is not under any obligation to do the former, and his remain- ing on and utilization of the premises may be a distinct advantage to the landlord, and that such an agreement will furnish a con- sideration for an agreement to reduce the rent has been more or less clearly recognized in several cases. 2"" An agreement on the part of the lessee to procure additional capital, provided the rent is reduced, has been regarded as a sufficient consideration 120. In Jaffray v. Greenbaum, S4 Brew. Co., 1 App. Div. 347, 72 N. Y. Iowa, 492, 20 N. W. 775, 52 Am. Rep. St. Rep. 443, 37 N. Y. Supp. 380. 449, it was held that the fact that 275 See Hyman v. Jockey Club the lessor anticipated that the lessee Wine, Liquor & Cigar Co., 9 Colo, might fail if no reduction in rent was App. 299, 48 Pac. 671. The authori- made constituted a consideration for ties cited in this ease do not support the reduction. It is, however, diffi- such a view. cult to see how a mere motive in 270 Doherty v. Doe, 18 Colo. 456, making the reduction can constitute 33 Pac. 165; Raymond v. Krauskopf, a consideration. In Ossowski v. 87 Iowa, 602, 54 N. W. 432; Ten Wiesner, 101 Wis. 238, 77 N. W. 184, Eyck v. Sleeper, 65 Minn. 413, 67 N. such an agreement seems to be re- W. 1026; Bowman v. Wright, 65 Neb. garded as valid though no consid- 661, 91 N. W. 580, 92 N. W. 580; eratlon is mentioned. Cooper v. Fretnoransky, 42 N. Y. 272 Lamb v. Rathburn, 118 Mich. St. Rep. 472, 16 N. Y. Supp. 866. 666, 77 N. W. 268. But see Seymour v. Hughes, 55 Misc. 273 Raymond v. Krauskopf, 87 248, 105 N. Y. Supp. 249, apparently Iowa, 602, 54 N. W. 432. to the contrary. 274 Holmquist v. Bavarian Star § 173 THE AMOUNT. 1057 for the reduction, the additional capital being procured as agreed.^'f^ The relinquishment of a right of action against the lessor will also support an agreement to reduce the rent,^''® as will the making by the lessee of alterations on the premises not called for by the lease.^Ts The fact that the landlord has, after making an agreement to reduce the rent, accepted the reduced rent on a number of rent days, does not dispense with the necessity of a consideration to support the agreement, so far as concerns subsequent rent,^*" though such acceptance of reduced rent will, it has been decided, prevent a recovery of the proper rent for the period for which the reduced rent was accepted.^si It has been occasionally decided in effect that, while an agree- ment by the tenant to do certain things is sufficient, as a con- sideration to support the landlord's agreement to reduce the rent, provided the tenant carries out his agreement, if he fails so to do the agreement to reduce the rent ceases to operate, and rent is recoverable for the si;bsequent period at the rate named by the lease.^^s It is usually assumed in the decisions, involving the validity of an agreement for the reduction of the rent, that the fact that the agreement is oral merely does not affect its validity.^^^H There are. however, some difficulties in ap('('ptinK this view. By 2JT Haslings v. Lovejoy, 140 Mass. Iowa, 86, 12 N. W. 767; Loach v. •261, 2 N. E. 776, 54 Am. Rep. 462. Pamum, 90 111. 368. 2T8 White V. Walker, 31 111. 422. 2si Doherty \. Doe, 18 Colo. 156, In Post V. Blankenstein, 30 Misc. 33 Pac. 165; Bowman v. Wright, 05 796, 63 N. Y. Supp. 218, where the Neh. 661, 91 N. W. 580, 92 N. W. 580; lessee had requested a reduction of McKenzie v. Harris-on, 120 N! Y. rent in view of the inconvenience 260, 24 N. E. 458, 8 L. R. A. 257, 17 suffered by him during the making Am. St. Rep. 638. But to the con- ot repairs, and the lessor agreed to trary, see Pusheck v. Frances E. allow a reduction, it was held that Willard N. T. H. Ass'n, 94 111. App. this agreement was supported by a 192. consideration, the request and as- 282 Watson v. Janiou, 6 Or. 137;- sent thereto being, in effect, "a set- Staab v. Raynolds, 4 N. M. 222, 17 dement of a contest between the Pac. 136; Brown v. Cairns, 63 Kan. parties." 693, 66 Pac. 1033. 279 Natelsohn v. Reich, 50 Misc. 2s2a That the rent reserved may 585, 99 N. y. Supp. 327. be changed by oral agreement, see 280 Fitzgerald v. Portarlington, 1 Wilson v. People's Gas Co., 75 Kau .Tones, 431; Wheeler v. Baker. 59 199. 89 Pac. 897: Haight v. Cohen, I., and Ten. 67. 1058 RENT. § ]73 the common-law authorities, it is conceived, such an agreement would be nugatory, not only if not in writing, but even if not under seal, since it constitutes, in effect, a partial release of the rent cheated by the reservation of the lease, and a release must at common law be under seal.^s^ There can be no difference in this respect between a release of the whole and a release of a part of the rent reserved. This view is not, however, suggested in any of the cases above referred to. If we view the provision us to rent, not as a reservation creating an interest in land, but merely as a contract to pay a periodic sum, it cannot, if contained in an instrument under the seal of the lessee, be modified by an instrument of a lower character, under the rule, accepted in some .iurisdictions, as to the modification of contracts under seal.^s^ There are occasional decisions in which this rule has been applied to an unsealed agreement to reduce the rent named in an instru- ment under seal,^'''^' while in at least one decision such rule has been repudiated in this eonnection.^se Apart from any question as to the necessity of a seal in order to validate a contract for the reduction of the rent, the question might be suggested wheth- er such contract must not frequently be in writing, as involving the modification of a contract required by the statute of frauds to be in writing,28T this involving the ultimate question whether 123 App. Div. 707, 108 N. Y. Supp. 2sd See Smith v. Kerr, 33 Hun (N. 502. Y.) 507; Barnett v. Barnes, 73 111. 2S3Co. Litt. 264 b; Williams, Real 216; Loach v. Farnum, 90 111. 368: Prop. (18th Ed.) 148. Coe v. Hobby, 72 N. Y. 141, 28 Am. There appears to be, in England, Rep. 120. But it was decided that if no case bearing upon the validity of the reduced sum agreed upon had an agreement to reduce the rent been actually paid upon a series of except Crowley v. Vitty, 7 Exch. 319, rent days, the lessor was bound by where the agreement was oral and his acceptance thereof, and coulu no consideration passed. There the not claim that the amounts orig- agreement for reduction was decided inally stipulated for should have to be invalid, Parke, B., saying: been paid. McKenzie v. Harrison, "There is nothing to bind the plain- 120 N. Y. 260, 24 N. E. 458, 8 L. R tiffs to accept the reduced rent. A. 257, 17 Am. St. Rep. 638. The transaction really amounts to 2so Hastings v. Lovejoy, 140 Mass. no more than an indulgence on the 261, 2 N. E. 776, 54 Am. Rep. 462. part of the landlords, which may be See Wilgus v. Whitehead, 89 Pa. put an end to at any time." 131. 284 Anson, Contracts (7th Ed.) 287 See Hammon, Contracts, § 280; 280; Hammon, Contracts, § 427. Browne, Statute of Frauds (5th § 173 THE AMOUNT. 1059 Ihe contract sought to be modified, that is, the contract to pay periodic sums, would have been valid had it not been in writ- ing.28s But any possible difficulty in the wa.j of upholding such an agreement, arising from the statute of frauds, would be re- garded as obviated by the fact that the reduced rent was actu- ally paid and accepted,2S9 this according with the general rule that an oral modification of a contract within the statute is valid if fully carried out. An agreement to reduce the rent does not constitute the making of a new lease, so as to effectuate a surrender of the original leasc^^** The demise of the land remains the same, although a part of the compensation to be paid is relinquished. There are, however, occasional suggestions to the contrary.^si (2) Increase of rent. Occasionally, instead of a subsequent agreement to reduce the rent, as in the cases above referred to, there is an agreement to increase the periodical payments, an agreement in form to increase the rent. Such an agreement does not, however, strictly speaking, have the effect of increasing the rent. The additional sum agreed to be paid is not rent, since it is not reserved upon the making of a lease. "If there be a power of re-entry for nonpayment of the rent, * * * there could be no ground for enforcing it in respect of the additional sum. The assignee of the term could not be charged with the increased rent; the assignee of the reversion could not claim it.''^^^ The only theory on which it could be regarded as rent would be by considering the agreement as a new demise, effecting a surrender of the original lease, but this would give to the agreement a force ordinarilj' never contemplated by the parties. Tt has in Ed.) 409 a; Goss v. Lord Nugent. 5 Y. 31, 15 N. E. 70, 2 Am. St. Rep. Barn. & Adol. 58. 362; Watson v. Janion, 6 Or. 137, 288 See ante, § 53 b, and post, § 190 b, at note 107. 2S9 It is so in effect decided in 291 Hyman v. Jockey Club Wine. Doherty v. Doe, 18 Colo. 456, 33 Pao. Liquor & Cigar Co., 9 Colo. App £99, 165; Bowman v. Wright, 65 Neb. 48 Pac. 671; Cooper v. Fretuor- 661. 91 N. W. 580, 92 N. W. 580. See ansky, 42 N. Y. St. Rep. 472, 16 N. McKenzie v. Harrison, 120 N. Y. 260, Y. Supp. 866. 24 N. E. 258, 8 L. R. A. 257, 17 Am. =92 Donellan v. Read, 3 Barn. & St. Rep. 638. Adol. 899. To the same effect, see 290 Crowley v. Vitty, 7 Exch. 319; Hoby v. Roebuck, 7 Taunt. 157; Colt Coe V. Hobby, 72 N. Y. 141, 28 Am. v. Braunsdorf, 32 N. Y. Super. Ct. Rep. 120. See Smith v. Kerr, 108 N. (2 Sweeny) 74. 1060 RENT. I 173 fact been decided that such an agreement does not of itself create a new demise.^^s g. Reduction apart from agreement. As will be shown later, the tenant is, in certain cases, entitled to a reduction or "appor- tionment" of the rent, as having been deprived, without his fault, of the enjoyment of part of the premises demised.^^* As a gen- eral rule, however, the fact that the premises are less valuable than anticipated for purposes of occupancy does not entitle the tenant to claim a reduction of rent, though according to some decisions he may in such case relinquish possession of the prem- ises and thereby absolve himself from further liability.^^^ And occasionally a statute allows a reduction in case of the accidental destruction of improvements on the premises.^ss it has been de- cided that the lessee cannot demand a reduction of rent because the land is less in quantity than as it was described in the lease, unless there was an agreement to reduce the rent in that case,^®''' nor because the landlord, by his use of adjoining land, made the possession of the leased land less valuable.^^® It has been decided that where a tenant, a bank, agreed to pay a certain rent in consideration of the keeping by the lessor of a deposit in the bank to a certain amount, the rent continued the same, though the bank failed and so rendered it impossible longer to keep a deposit there, applying the principle that one who dis- ables himself from performing a contract thereby waives the performance of acts by the other party which, but for such disa- bility, the latter would be boimd to perform, as conditions prece- dent to a recovery on the contract.^®^ Tt has on the other hand been decided that, where the lessee agreed to pay a certain rent for rooms on condition that the lessor would furnish board to him without extra charge, the lessee's executors were entitled, upon the lessee's death, to have the cost of such board deducted from the after-accruing rent. 3"" 593 Doe d. Monok v. Geelcie, 5 Q. 29s Holmes v. Stockton, 2C N. J. B. 841; Inchiquin v. Lyons, T>. R. Law, 93. Compare post, § 185 f (8). 20 Ir. 474. -°° Metropolitan Life Ins. Co. v. -94 See post § 175 Standard Nat. Bank, 44 App. Div. „. „' /. 100 319- 60 N. Y. Supp. 666, afg. 57 N. 235 See post, § 182 n, o. ,^ ' „„„ y. Supp. 797. 206 See post, § 182 m (8). 300 Oliver v. Moore, 53 Hun. 472. 207 Leavitt v. Murray, V.'rlght g N. Y. Supp. 413, afd., without opln- (Ohio) 707. But see post, § 182 a. ion. 131 N. Y. 589, 30 N. E. 65. § 174 INTEREST ON RENT. 1061 The fact that the tenant has a valid claim against the land- lord, even though it is one which he can assert by way of set-off in an action for rent, does not reduce the amount of rent due by him. So, though the tenant sublets to the landlord at a certain rent, the rent due by him to the latter remains the same,^*" nor can a tenant make a valid tender of rent by tendering only the net amoiint due by him, after deducting his claims against the landlord.^"" On the same principle the landlord can, apart from statutory changes in the law, distrain for the whole unpaid rent, without reference to any claims against him on the part of the tenant.*"" h. Oral evidence as to amount of rent. The "parol evidence rule" has quite occasionally been applied, so as to exclude evi- dence that the actual contract of the parties as regards the amount of rent to be paid was different from that stated in the instrument of lease.*°* Bvat a contemporaneous agreement that, until certain alterations are completed, the lessee will pay less than the sum named, has been regarded as collateral in its nature, so as to render oral evidence thereof admissible.soo And it has been decided that a person not a party to the lease, nor a claimant under -such party, can introduce oral evidence in this regard, the "parol evidence rulp" applying only as between the parties to the instrument.*"" ij 174. Interest on rent. The ((Qtstion of the right of the landlord to interest upon rent in arrear, from the time at whinh it ■was payable, is one 301 Hilton V. Goodhlnd, 2 Car, & N. D. 519, 97 N. W. 853. So it has P. 591. been decided ttiat it cannot be shown :i02 Ely V. Spiero, 28 App. Div. 485, orally that rent was to be paid part- 51 N. Y. Supp. 124. ly in board to be furnished the les- 303 See post, chapter XXXII. sor. Stull v. Thompson, 154 Pa. J", ■104 Preston v. Morceau, 2 Wm. Bl. 25 Atl. 890. 1249; Williams v. Kent, 67 Md. 350, sos Sire v. Rumbold, 39 N. Y. St. 10 Atl. 228, 1 Am. St. Rep. 390; Pat- Rep. 85, 14 N. Y. Supp. 925. terson v. O'Hara, 2 E. D. Smith (N. 3oo Com. v. Contner, 21 Pa. 266 Y.) 58; Delamater v. Bush, 63 Barb. Here the third person was the pher- (N. Y.) 168; Lieheskind v. Moore iff asserting a right to pay a year's Co., 84 N. Y. Supp. 850; Kaven v. rent to the landlord as against an Chrystie, 84 N. Y. Supp. 470; Mer- execution creditor, under the statute chants' State Bank v. Ruettell. 12 ot Anne. See post, § 183. 1062 RENT. § 174 on which the cases are not in accord. It seems that such in- terest was not recoverable at common law, interest being or- dinarily refused if not expressly contracted for, and the same view has been occasionally taken in this country. One reason which has been asserted for the nonallowance of interest in such case is that since rent is but remuneration for the use of land, as interest is for the use of money, the allowance of in- interest thereon would be equivalent to the allowance of interest on interestj^oT and another reason which has been given is that the landlord, having an immediate remedy by distress, cannot )-efrain from making use thereof, and so allow interest to ac- cumulate.^"* Occasionally, with reference to the allowance of such interest in equity, it has been said to be a matter within the discretion of the chancellor. ^o" Statutes providing for interest upon money due on an instru- ment m writing, or on one under seal, have been regarded as ap- plying to rent due under such an instrument,^'" and presumably, at the present day, in most jurisdictions, without reference to any express statute on the subject,^'^- interest would be allowed on arrears of rent, in accordance with the rule, usually adopted by the later decisions, that one who fails to pay his debt when due should be made liable for interest, as indemnity to the creditor for the loss resulting from the delay in payment,^'* 307 Breckenridge v. Brooks, 9 Ky. In England, interest on rent Is (2 A. K. Marsh.) 335. recoverable. It seems, under St. 3 & 4 303 Skipwith V. Clinch, 2 Call Will. 4, c. 42, § 28, allowing interest (Va.) 213, 2 Am. Dec. 546; Cooke v. on a debt payable at a certain time. Wise, 3 Hen. & M. (Va.) 463. See Woodfall, Landl. & Ten. (16th 309 Graham v. Woodson, 2 Call Ed.) 568; Poa, Landl. & Ten. (2d (Va.) 209; Howcott v. Collins, 23 Ed.) 131. Miss. 398. 311 Occasionally a statute express 310 Walker V. Hadduck, 14 III. 399; ly provides for interest on rent. Heissler v. Stose, 131 111. 393, 23 Florida Gen. St. 1906, § 2235; Geor- N. E. 347; Downing v. Palmateer, gia Code 1895, § 3128; Kentucky St. 17, Ky. (1 T. B. Hon.) 64. But it 1903, § 2299; Virginia Code 1904, § was held that the lessor was en- 2787; West Virginia Code 1906, J titled to interest only from the time 3400. of his demand for rent if the delay 312 gee, to this effect, Stockton v. in payment was owing to an agree- Guthrie, 5 Har. (Del.) 204; Vr.n ment for such delay, although such Rensselaer v. Jewett, 5 Denio, 135, 2 agreement was Invalid. Whitp v. N. Y. (2 Comst.) 135, 51 Am. Dc. AValker, 31 111. 422. 275; Livingston v. Miller, 11 N. Y- § 175 APPORTIONMENT AS TO AMOUNT. 1Q63 though, it seems, interest might be refused when its allowance would, under the circumstances, result inequitably .^ is § 175. Apportionment as to amount. a. General considerations. Rent may be apportioned as re- gards the amount therof, that is, a person may become entitled to, or liable for, a portion only of the rent originally reserved.^i''* Either one of three different eases of such apportionment may arise, that is: (1) a right to a distinct portion of the rent, and to such portion only, may be vested in each of two or more per- sons; (2) a liability for a distinct portion of the rent, and for such portion only, may be imposed on one person, another being liable for the balance; or (3) the r&nt may be extinguished or suspended as to a portion, and a portion only. Apportionment of rent, as regards the right thereto or the lia- bility therefor, between two or more persons, ordinarily occurs by reason of the transfer of portions of the reversion or of the leasehold to distinct persons. In such case the rent is appor- tioned between such persons upon the basis of the values of their respective portions of the land and not of the extent of such por- (1 Keru.) 80; Newman v. KefEer, ces rendered the charge of interest 33 Pa. 442, note; Dennlson v. Lee, 6 improper, it appearing that the ten- Gill & J. (Md.) 383; Dorrill v. Hop- ant was willing to do justice. And kins, 4 McCord (S. C.) 59; Honore in McQuesney v. Hiester, 33 Pa. 435, V. Murray, 33 Ky. (3 Dana) 31; El- 75 Am. Dec. 612, it was held that kin V. Moore, 45 Ky. (6 B. Mon.) 462. interest was recoverable on rent ac- It was allowed even when the rent cruing after the time of the pur- was payable, not in money, but in chase by the the defendant of the commodities, it being calculated on premises subject to the rent, but the value of the commodities. Van not on rent due before his purchase, Rensselaer v. Jewett, 5 Denio, 135, since he was justified in presuming 2 N. Y. (2 Comst.) 135, 51 Am. Dec. that such rent was paid. 275. 313 In In re Gregg, 11 Misc. 153. In Obermyer v. Nichols, 6 Bin. 32 N. Y. Supp. 1103, interest was re- (Pa.) 159, 6 Am. Dec. 439, it was fused by the surrogate in favor of held that interest should be allowod a son who was his mother's tenant, unless from the landlord's conduct he claiming that no rent was to be it might be inferred that he meant paid under the lease, and the mother not to insist on Interest, or unless not having demanded rent, he acted in an oppressive manner by siaa As to apportionment of rent demanding more than was due, or on lease of land and chattels, see unless othei: equitable circumstan- ante, § 169 c. 1064 RENT. J 175 tions."" If, however, the value of the respecti^■e portions of the land is not shown, the apportionment will, it seems, be according to their extent.^^^ The fact that, in a particular case, a tenant of the whole or a part of the land is entitled to demand an apportionment in his favor, that is, to assert a liability for an apportioned part only, does not render it incumbent upon the owner of the reversion in a part or the whole of the land, when suing for rent, to demand merely what he is entitled to upon the apportionment, but he may sue for the whole rent, and recover so much thereof as the jury may find him entitled to.^^* If rent is in its nature insusceptible of apportionment, as when it consists of the yearly render of a single chattel, which cannot be divided without destroying it, a purchase by the landlord of the leasehold ia part of the land will extinguish the rent.'''" On the other hand, a severance of the leasehold by the voluntary act of the tenant, as when he transfers pai-ts thereof to different persons, will multiply ^nich a rent, each tenant of part becoming liable for the whole.-''is b. On severance of reversion. Considering first the appor- tionment of the rent as regards the right thereto, it is well settled that if the reversion is severed, so that part is vested in one person and part in another, the rent incident to the re- version is apportioned between such persons according to the re- spective values of their parts of the reversion, and a portion of the rent is payable to one of such persons and a portion is pay- able to the other. Such severance of the reversion occurs when the landlord grants the reversion in part of the land to another, -liLitt. § 224; Co. Litt. 149 b; portionment (E) 2; 2 Piatt, Leases, Pallet's Case, Brownl. & G. 186; 146; Worthington v. Cooke, 56 Md. Hodgkins v. Robson, 1 Vent. 276; .51; Dreyfus v. Hlrt, 82 Cal. 621, 23 Biddle v. Hussman, 23 Mo. ,597; Pac. 193; Van Rensselaer v. Gallup, Reed v. Ward, 22 Pa. 144; Doyle v. 5 Denio (N. Y.) 454. liOngstreth, 6 Pa. Super. Ct. 475; si7 Litt. § 222; Co. Litt, 149 a; Gribbie v. Toms, 70 N. J. Law, 522, Bruerton's Case, 6 Coke, 1; Talbot'd 37 Atl. 144; Id., 71 N. J. Law, 338, 59 Case, S Coke, 105. Atl. 1117. 318 Van Rensselaer v. Bradley, 3 "i^Van Rensselaer v. Jones, 2 Denio (N. Y.) 135, 45 Am. Dec, 451; Barb. (N. Y.) 643. See argument in Van Rensselaer v, Gifford, 24 Barb. White v. West, Noy, 10. (N. Y.) 349; Bruerton's Case, 6 3>c. 2 Co Inst. 503; Vln. Abr, Ap- Coke, 1; Com. Dig,, Suspension (G), § 175 APPORTIONMENT AS TO AMOUNT. 1065 retaining that in the balance,-^i» and also when he grants the re- version in different parts of the land to different persons, not retaining any part thereof. 320 And the case is the same when he severs the reversion by devise.^^i An apportionment also takes place if the reversion is severed liy act of the law, as when, on the death of the landlord, it passes to two or more heirs,322 or when it passes to the heir, and, as to one-third, to the widow.322a jf j^ person seized in fee of one tract, and possessed of a term of twenty years in another, leases both together for ten years, reserving rent, and dies, whereupon the reversion in one tract goes to his heir, and in the other tract to his executor, the rent will be apportioned accordingly.^^.-: In any such case of severance of the reversion by the transfer of a part or parts thereof, the apportionment of rent cannot be laade by the landlord without the concurrence of the tenant, and, unless the latter consents to an apportionment made by the former, he may demand that the jury determine, in an action for the rent, the respective values of the different portions of the land, and the consequent extent of his obligation to each, owner of a part of the reversion.^^* T^e apportionment in such a case is, however, for the benefit of the persons entitled to the various parts of the reversion, and the tenant cannot demand that such persons make an apportionment, if they prefer to treat the rent as an entire one. paynble jointly to nil nnd not partly to oafh.32r. •'iiuCo. Litt. 148 a; (2 Co. Inst. 322 Bank of Pennsylvania v. Wise, .504; West v. Lassels, Cro. Eliz. S51; 3 Watts (Pa.) 404; Oole v. Patter Bliss V. Collins, 5 Barn. & Aid. 876: son, 25 Wend. (N. Y.) 456; Crcsby Linton v. Hart, 25 Pa. 193, 64 Am. v. Loop, 13 111. 625; Leitch v. Boy Dec. 691; Worthington v. Cooke, 56 ington, 84 111. 179, 25 Am. Rep. 442. Md. 51; Biddler v. Hussman, 23 Mo. 322a 1 Rolle, Abr. 237, pi. 5. 597; Grubbie v. Toms, 70 N. J. Law, "23 Moody v. Garnon, 1 Rolle, 522, 57 Atl. 144; Id., 71 N. J. Law, Abr. 237, pi. 3. 338, 59 Atl. 1117. '-^ Fish v. Campion, 1 Rolle, Abr. 320 Gilbert, Rents, 173; Ehrman v. 237, pi. 1; Bac. Abr., Rent (M. S); Mayer, 57 Md. 612, 40 Am. Rep. 448; Bliss v. Collins, 5 Barn. & Aid. Crosby v. Loop, 13 111. 625, 14 111. 876; Hare v. Proudfoot, 6 N. C. 320; Reed v. Ward, 22 Pa. 144. Q. B. (O. S.) 617; Biddle v. Huss 321 Ewer V. Moyle, Cro. Eliz. 771; man, 23 Mo. 597. Hare v. Proudfoot, 6 U. C. Q. B. (O. ^25 People v. Dudley, 58 N. V. 32:1. S.) 617. 1066 RENT. § 175 Not only is the rent apportioned upon the severance of the reversion, but it may be apportioned by act of the landlord with- out reference to the reversion, this being retained by him or transferred to another. Thus, when one who has demised land for years, reserving a rent of a certain sum yearly, grants to each of several persons, or to one person, a portioai of the rent, such grant is perfectly good, whatever disposition the grantor may make of the reversion.^^e g^ tenants in common of land, after making a lease thereof, reserving one entire rent, may ap- portion the rent between them, each taking a certain portion thereof.^-^ It would seem that, in the latter case, the apportion- ment can properly be made only by an exchange of conveyances, as in the case of the partition of other interests in land,^^® un- less the period for which the rent is still to run is within an ex- ception in the local statute requiring a conveyance of such an interest to be in writing, or unless, perhaps, the actions of the parties in accordance with suc-h oral apportionment can be re- 3=0 Ards V. Watkins, Cro. Eliz. 637, thermore, there seems to have been 651; Bliss v. Collins, 5 Barn. & Aid. no evidence of an intention to make 876, 882; Rivis v. Watson, 5 Macs, a new lease. In Woolsey v. Lasher, & W. 255. 35 App. Div. 108, 54 N. Y. Supp. 737, 327 Powis V. Smith, 5 Barn. & Aid. it was decided, on the authority of 850; Woolsey v. Lasher, 35 App. Div. the above case, that "if there was a 108, 54 N. Y. Supp. 737. severance of the ownership of the 328 Such necessity is not, however, rent, understood and acted upon by suggested in the two cases last cited, all parties," it was not necessary for In Powis V. Smith, 5 Barn. & Aid. the parties to sue jointly. There 85f}, it was held to be a question for the lessors and lessee had together the jury whether, the lessors having agreed that in future one moiety of notified the lessee to pay a moiety the rent should be paid to each les- to each, and the rent being so paid sor. Apart from any question of ap- and separate receipts given, "the par- portionment, each lessor can, in an ties thereby meant to enter into a action of debt, though ordinarily not, new contract, with a separate reserv- it seems, in an action of covenant, ation of rent to each, or whether they sue for his undivided share of the meant to continue the old re=erva- rent. Post, § 291 c, at notes 77-81. tlon of rent, each of the plaintiffs re- Whether he can do so in use and ceiving his own moiety," and that occupation has not been decided, but consequently it was error to nonsuit it would rather seem not, as this the lessors suing jointly. If by "a would involve an inference of a new contract" is meant a new lease, promise to pay to each tenant in such would have been void, appar- common a separate sum for the en- ently, because not in writing. Fur- joyment of the premises. § 175 APPORTIONMENT AS TO AMOUNT. 1067 garded as validating it, as is sometimes the case when there is an oral apportionment between joint owners of land.^^o c. On severance of leasehold. In case the leasehold interest iQ different parts of the premises becomes vested in different per- sons, each part, or the owner of each part, may be, for certain purposes, liable for a proportioned part only of the rent.^so There are, in one jurisdiction, decisions to the effect that if a landlord, for many years, collects only a certain part of the rent from each of several parts into which the premises have, by as- signment or sublease, been subdivided, this fact, Avith other cir- cumstances, may furnish ground for a presumption that the rent has, with the landlord's assent, been so apportioned as between the various parts of the property, so as to make each of such parts liable only for the apportioned part of the rent.^^i d. On partial extinction or suspension of rent. Cases of the apportionment of rent by reason of the extinction or suspension of a portion of the rent occur upon the termination of the ten- ant's use and enjoyment of part of the premises, by reason of matters other than the transfer of the leasehold in such part to a third person. Thus, if the tenant of the whole premises sur- renders the leasehold interest in a part thereof, or such leasehold is otherwise in part merged in the reversion, the rent is appor- tioned, and is extinguished in an amount proportioned to the valae of the portion as to which the lease is no longer outstand- ing, while still existent as regards the balance.^^^ j^u(j g^ jf t^g 320 See 1 Tiffany, Real Prop. § 285; Van Rensselaer v. Gifford, 24 174. Barb. (N. Y.) 349; Leltch v. Boying- 330 See post, § 181 b, notes 669, 677- ton, 84 111. 179, 34 L. R. A. 55, 57 679. Am. St. Rep. 396; Hlggins v. Call- «3i Speed V. Smith, 4 Md. Ch. 299; fornia Petroleum & Asphalt Co., 109 Barnitz v. ReddJngton, 80 Md. 622, Cal. 304, 41 Pae. 1087. 24 Atl. 409; Connoughton v. Bern- It was said by Lord Coke that If ard, 84 Md. 577, 591, 36 Atl. 265. the lessee underlet part of the land Compare Smith v. Heldman, 93 Md. to the lessor, the rent cannot be ap- 343, 48 Atl. 946; Jones v. Rose, 96 portioned. (See Co. Lltt. 148 b; Md. 483, 54 Atl. 69. Rawlyns' Case, 4 Coke, 52 b; 3S2Litt. § 222; Co. 'Lltt. 148 a; Ascough's Case, 9 Coke, 134). But Fishe V. Campion, 1 Rolle, Abr. 234, this view, based on a theory that pi. 5; Smith v. Mallngs, Cro. Jac. while rent may be extinguished in 160; B3hrman v. Mayer, 57 Md. 612, part and apportioned as to the resi- 40 Am. Rep. 448; Nellis v. Lathrop, due, it cannot be suspended in part 22 Wend. (N. Y.) 121, 34 Am. Dec. and apportioned as to the residue. 1068 RENT. § 17;-, ti'iiiint is evicted by paramount title from part of the premises, the rent is apportioned, and the tenant is thereafter liable only for an amount of rent proportioned to the value of the portion of the premises of which he still retains iiossession,333 though if the partial eviction is by the act of the landlord of the whole premises, and not under paramount title, no apportionment takes place in favor of the landlord, but he loses the entire rent so long as the eviction continues.-''''' In certain cases apportionment will take place owing to the lessee's inability to obtain possession of the whole of -the demised premises.^-'"^' Apportionment also takes place when the landlord re-enters upon a part of the premises for breach of a condition in the lease or for other act involving a right of forfeiture, and thereafter the tenant is liable for rent only in proportion to the part retained by him.^^^ As an apportionment of the rent, upon a severance of the re- version, is to be made by the jury,'''3'i' so the apportionment in the case of a partial extinction or siispension of the rent is to be so made.^^* That is, it is for the jury to determine to what ex- tent the tenant's liability is diminished by his loss of a part of the premises by eviction, by title paramount, by surrender, or by forfeiture, as the case may be. e. In action on covenant for rent. Tt is stated, in a case not has been repudiated. Lord Hale say- v. Atchison, 67 Ky. (4 Bush) 261, 96 ing that the adoption of such Am. Dec. 299, is to be explained, it a rule "would shake abundance being there said that if the lessees of rents, it being a frequent fail to cultivate a part of the land thing for a lessor to hire a and the landlord cultivates such room or other part of the thing de- part, the lessees are entitled to cred- mised for his conveniency." Hodg- it for the pro rata value of such por- kins v. Robson, 1 Vent. 276. See tion. Ingersoll v. Sergeant, 1 Whart. sas See post, § 182 e (2) (b). (Pa.) 337, 355. But if rent is re- 334 gee post, § 182 (e) 1 (b). served on the redemise to the les- 335 gee post § 182 a. see, there is no apportionment, "for sse Co. Litt. 148 a; Walker's Case, the parties, by the reservation, have 3 Coke, 22; 1 Rolle, Abr. 235, pi. 1^: .nscertained what rent shall be al- Collins v. Harding, 13 Coke, 58. lowed for that part." Hodgkins- v. 337 gee ante, at note 314. I -bscn, supra. See Comyn, Landl. ^ss gee Fish v. Campion, 1 Rolle, '■. Ten. 218; 2 Piatt, Leases, 134. It is Abr. 237, pi. 1; Hodgkins v. Robson, i;c4haps on the theory of such a re- 1 Vent. 276; Cuthbert v. Kuhn, 3 demise to the landlord that Calhoun Whart. (Pa.) 357, 31 Am. Dec. 513. § 175 APPORTIONMENT AS TO AMOUNT. J 069 infrequeutiy referred to,^^** that "in covenant as between les- sor and lessee, where the action is personal, and upon a mere privity of contract, and on that account transitory as any other personal contract is, the rent is not apportionable. " This, how- ever, was a dictum merely, the actual decision being that where the action of covenant for rent is brought against the assignee of the lessee, and is therefore maintainable by reason of the privity of estate,^*" such assignee is entitled to an apportionment of the rent upon a partial eviction by title paramount.^*^ This dictum, it seems clear, is not correct in so far as it is in terms applicable to an action by the lessor, who has disposed of the reversion in part of the premises, upon the lessee's covenant for rent, to recover a part of the rent proportioned to the land re- tained by him, he being entitled to recover such part and no more,'*2 this being in accordance with the apparent intention of the statute of 32 Henry 8, c. 34.3*3 Whether the dictum is correct as applied to a case in which the rent is in part extin- guished or suspended, as upon a surrender or eviction by title paramount, it is difficult to say. In one case in this country an action at law on the covenant for rent was enjoined in order that the lessee might have the rent apportioned by reason of a partial eviction under paramount title, the decision being, however, based, in part at least, on the fact that the pleadings in the action of law did not show that the covenant was one for the payment of rent j^-** and in an English case the court refused to decide the question A^hether the surrender of the leasehold in part of the premises by the lessee's assignee was a defense in part to an action for rent by the lessor against the lessee on the latter's covenant."''' Tn a Cnnadian case it Avas held that there 339 Stevenson v. Lambard, 2 Bast, Linton v. Hart, 25 Pa. 193, 64 Am. 515, per Lord EUenborougli. C. J. Dec. 691. ■no See post, 181 b. ••^■' See ante, § 149 b (1). 3« See post, § 182 e. -+* Poston v. Jones, 37 N. C. (2 3*2 Swansea v. Thomas, 10 Q. B. Ired. Eq.) 350, 38 Am. Dec. 683. Div. 48, citing Twynam v. Pickard, 2 3*5 Baynton v. Morgan, 22 Q. B. Earn. & Aid. 105 ; Pyot v. St. Jolin, Div. 74. It was decided that the les- Oro. Jac. 329, and questioning Stev- see could not assert such surrender enson v. Lambard, 2 East, 575; as an absolute defense to the action Worthington v. Cooke, 56 Md. 51, for rent, and the question whether (itjntr various cases not in point: it could be asserted as a partial de- 1070 RENT. I 175 could, in an action of covenant, be no apportionment by reason of the partial eviction of the tenant. ^^^ This question of the original lessee's right, in an action of covenant by the lessor, to allege a partial surrender, forfeiture, or eviction under paramount title, and to obtain an apportionment of rent on account thereof, might, it seems, frequently be de- termined in his favor by construing the lessee's covenant as one to pay the rent that may become due, rather than to pay the amount of the rent as reserved, in which case he could be held for no greater amount under his covenant than under the mere reservation of rent, and a loss of the enjoyment of part of the premises, which would be ground for a pro tanto reduction of recovery in an action of debt, would have the same effect in an action on the covenant. ^^""^■"' So far as the covenant may not be susceptible of this construction, and can be regarded only as one for the payment of a certain periodical sum, it is difficult to find a satisfactory ground on which to entitle the covenantor to a reduction of liability in case of such partial loss of enjoy- ment of the premises. The courts might possibly apply the doc- trine of "failure of consideration" in such case in order to re- lieve the lessee. But this doctrine, whatever may be its exact scope, does not seem applicable to the case of a covenant for rent entered into in consideration of the grant of an estate by way of lease, since the consideration is executed and not executory. f. Of rent charge. A rent charge, as distinguished from rent service, could not, at common law, be apportioned by the act of a party, so as to exonerate part of the land from the rent, such charges on the land not being favored by the courts as were rents service, which Avere regarded as a necessary part of the feudal constitution of the realm.^so Consequently, if the owner- ship of the rent and of a portion of the land became vested in one person.ssi or if the owner of the rent purchased or released a part of the landj'''^^ the whole rent was extinguished. A rent charge fense did not arise, since the lessor sio Gilbert, Rents, 153. A rent was satisfied to accept an appor- seek, likewise, is not apportionable tioned part of the rent. by act of a party. Vin. Abr., Appor- ' 346 Shuttle-worth v. Shaw, 6 U. C. tionment (A) 2; Rent (G a) 12. Q. B. 539. s.5iLitt. § 222; Co. Litt. Ul b, 34T-349 See Baynton v. Morgan, 22 148 a. Q. B. Div. 81, per Fry, .T. S52 Co. Litt. 147 b. § 176 APPORTIONMENT AS TO TIME. 107] might, however, be apportioned by the act of the owner of the rent, in releasing part thereof,353 or by the act of the law, as when the owner of the rent acquired a part of the land by de- scent.354 And it might be done by agreement between the owner of the land and the owner of the rent, this in effect resulting in a new rent charge.^Bs Such an agreement has been inferred from the long continued payment and acceptance of an apportioned part of the rent.^s" And when joint owners of the land subject to the rent, on making partition, agreed that a specific portion of the rent should be paid by each, it was held that if thereafter the owner of the rent purchased one portion of the land as divided,^^^ or if he released to one owner all his interest in the land,*58 ^g became a party to the agreement for apportionment. The right to receive the rent, as distinguished from the liability therefor, may be apportioned by a transfer by the owner of the rent of a part or parts thereof to a stranger.^ss § 176. Apportionment as to time. a. Generally not allowable. Rent is not, at common law, re- garded as accruing from day to day, as interest does, but it is only upon the day fixed for payment that any part of it becomes due.-''^'' The result of this principle is that, ordinarily, the per- son who is on that day the owner of the reversion is entitled to the entire installment of rent due on that day, though he may have been the owner of the reversion or rent but a part of the time which has elapsed since the last rent day. Conversely, one who lias been the owner of the reversion or rent during a part of that period can claim no portion of the installment unless he is such 353 Co. Litt. 148 a; Bac. Abr., Rent "-.a Co. Litt. 148 a; Gilbert, Rents, (m) 1. 163; Farley v. Craig, 11 N. J. Law (6 854 Litt. § 224; Co. Litt. 194 b; Cru- Halst.) 262; Ryerson v. Quacken- ger V. McLaury, 41 N. Y. 219. bush, 26 N. J. Law (2 Dutch.) 236. =55 Co. Litt. 147 b, and note; Van sco ciun's Case, 10 Coke, 1.26 b; Rensselaer v. Chadwick, 22 N. Y. 32. Dexter v. Phillips, 121 Mass. 178, 23 358 Church V. Seeley, 110 N. Y. 457, Am. Rep. 261; Anderson v. Robbins, 18 N. E. 117; Farley v. Craig, 11 N. 82 Me. 422, 19 Atl. 910, 8 L. R. A. .T. Law (6 Halst.) 262. 568; Marshall v. Moseley, 21 N. Y. 367 Van Rensselaer v. Gifford, 24 280; Perry v. Aldrich, 13 N. H. 343, Barb. (N. Y.) 349. 38 Am. Dec. 493; Bank of Pennsyl- 358 Van Rensselaer v. Chadwick, 24 -vania v. Wise, 3 Watts (Pa.) 394. Barb. 333, 22 N. Y. 32. 1072 RENT. J 17(i owner at the time at which the installment is payable by the terms of the lease. The general rule in this regard is ordinarily ex- pressed by saying that rent cannot be apportioned as to time. An important application of the rule is seen in case a tenant for his own or f oi another 's life makes a lease for years, and the lease comes to an end by reason of his death or of that of the cestui que vie. In such case the lessee entirely escapes liability for the installment of rent next falling due.^*i The lessor or his executor cannot recover the whole installment, since the life in- terest has ceased before the installment falls due, and he cannot, under the rule against apportionment, recover a portion calcu- lated up to the time of the cessation of his interest. Nor can the remainderman recover any porticn of the rent, since the lease by which the rent was reserved is no longer operative, and also because he is a stranger to the lease.^^^ When the life tenant has a power of leasing, and consequently the lease is valid for the full term named therein, the life tenant, as in the previous case, cannot claim an apportioned part of the rent, but in this case it all goes to the remainderman, as being the owner of the reversion at the time the installment falls due.*®^ And so if one de'^'ises property, which he has previously ::oiClun's Case, 10 Coke, 127 a; Vallery, 51 Neb. 824, 71 N. W. 734, 66 .Tenner v. Morgan, 1 P. Wms. 391; Ex Am. St. Rep. 475. But it is not per- parte Smytli, 1 Swanst. 337, and ceived how the lessee, holding oyer notes; Perry v. Aldrich, 13 N. H. after the termination of his lease 343, 38 Am. Dec. 493; Hoagland v. by his lessor's death, could thus be Crum, 113 111. 365, 55 Am. Rep. 424; held liable in use and occupation to Watson V. Penn, 108 Ind. 21, 8 N. the remainderman, with whom he E. 636, 58 Am. Rep. 26; Gee v. Gee. is in no privity, and towards whom 22 N. C. (2 Dev. & B. Eq.) 103. his continued possession is adverse. 3';2 It is stated in the recitals to See Noble v. Tyler, 61 Ohio St. 432, the apportionment act of 11 Geo. 2, 56 N. E. 191, 48 L. R. A. 735. The p. 19, § 15 (post, § 176 b) that in mere fact that a remainderman does such case the only remedy of the re- not object to the wrongful posses- versioner (remainderman) was by a sion of his land by one who has en- recovery for the lessee's use and oc- tered under the life tenant cannot cupation from the time of the life make such other his tenant, so as to tenant's death. That such an action be liable in use and occupation, would lie in favor of the remainder- Post, § 30-2. A remainderman cannot man if he did not object to the con- even confirm a lease made by the tinned possession by the life ten- life tenant. Post, at note 397. ant's lessee was decided in Hoagland ■•''■^ Strafford v. Wentworth, Fin. V. Crum. 113 111. 365; Guthmann v. Prec, 555; Clarkson v. Scarborough, 1 § 176 APPORTIONMENT AS TO TIME. 1073 demised, to one person for life with remainder to another, the executor of the tenant for life can demand no part of the install- ment of rent falling due after the death of such tenant, but it all goes to the remainderman.^^* The rule of law, forbidding an apportionment in favor of the life tenant in the ease first above stau».d, is followed in equity.-'®" But where the lessee, claiming under a lease made by a life ten- ant, not under a power, did in fact continue in the occupation of the premises after the legal termination of the tenancy, and paid a sum of money as rent, though not strictly due as such, the money so paid was considered in equity as apportionable betweea the several persons under whom the occupancy occurred, and the remainderman, having received the whole amount, was required to account for a proportionate part to the life tenant or his representative.^®" Other applications of the rule against apportionment of rent as to time occur as follows : If a tenant in fee simple, having made a lease for years, dies between two rent days, the entire installment of rent next falling due belongs to his heir or dev- isee, as being the owner of the reversion at the time the install- ment falls due, and the executor or administrator can assert a claim to no portion thereof.^"^ And when the landlord makes a conveyance of the reversion, the grantee is entitled, in the ab- sence of a contrary stipulation, to all the rent which falls due at the next rent day, and the grantor can claim no part th^reof.^®^ Swanst. 354; Ex parte Smyth, 1 Wms. 391, the tenant was required, Swanst. 337. in equity, to account to the remain- 364 Marshall v. Moseley, 21 N. Y. derman for the profits from the 280. time of the life tenant's death. 365 jenner v. Morgan, 1 P. Wms. sot ciun's Case, 10 Coke, 127 a; ?M; Hay v. Palmer, 2 P. Wms. 502. Duppa v. Mayo, 1 Wms. Saund. 287,- 306 Hawkins v. Kelly, 8 Ves. Jr. Marshall v. Moseley, 21 N. Y. 280; 308. See Marshall v. Moseley, 21 N. Anderson v. Robbins, 82 Me. 422, 19 Y. 280. And so, where a tenant in Atl. 910, 8 L. R. A. 568; Bloodworth tail died without issue, after having v. Stevens, 51 Miss. 475; Bank of made a lease for years, the remain- Pennsylvania v. Wise, 3 Watts (Pa.) derman was required to account to 394; Allen v. Van Houton, 19 N. J. the former's executors for a propor- Law (4 Har.) 47; Dorsett v. Gray, tionate part of the suin received by 98 Ind. 273. him as rent. Paget v. Gee, 1 Amb. aos English v. Key, 39 Ala. 113; 198; Vernon v. Vernon, 2 Brown Ch. Martin v. Martin, 7 Md. 368, 61 Am. 659. In Jenner v. Morgan. 1 P. Dec. 364; Bank of Pennsylvania v. L. and Ten. 68. 1074 RENT. § 176 So when the tenant is evicted by title paramount between rent days, the landlord cannot claim any portion of the installment next falling due,^'''' and this is a fortiori the ease if the landlord himself evicts the tenant.^ '^* If the tenant surrenders his lease- hold, the landlord cannot assert a claim to a proportionate part of the rent as compensation for the tenant's occupancy from the next preceding rent day to the date of the surrender, in the ab- sence of an agreement in this regard.^'^^ If the landlord himself terminates the tenancy, either by force of an express option so to do,^''^ or in accordance with the nature of the tenancy, as being one at will,'"^ or for breach of a con- dition subsequent/'''^'' he cannot recover any part of the rent falling due at the next rent -day. And so a tenant under a lease at will, reserving rent periodically, cannot, by the weight of authority, by terminating the tenancy l)etween rent days, ap- portion the rent in his favor, but in such case he is liable for the Wise, 3 Watts (Pa.) 394; Hearne v. Y.) 161; Nicholson v. Munigle, 88 Lewis, 78 Tex. 276, 14 S. W. 572; Mass., (6 Allen) 215. But see die- Hull V. Stevenson, 58 How. Pr. (N. turn in Perry v. Aldrich, 13 N. H. Y.) 135, note. 343, 38 Am. Dec. 493, to the effect "no Clun's Case, 10 Coke, 127 a; that a lease providing for termina- Bnglish V. Key, 39 Ala. 113; And- tion on a contingency should be erson v. Robbins, 82 Me. 422, 19 Atl. construed as providing for appor- 910, 8 L. R. A. 568; Fitchburg Cotton tionment. Manufactory Corp. v. Melven, 15 srs Robinson v. Deering, 56 Me. Mass. 270; Knowles v. Maynard, 54 357; Cameron v. Little, 62 Me. 550; Mass. (13 Mete.) 352; Adams v. Hammond v. Thompson, 168 Mass. Bigelow, 128 Mass. 365; Martin v. 531, 47 N. E. 137; Emmes v. Peeley, Martin, 7 Md. 368, 61 Am. Dec. 364; 132 Mass. 346; Leigh.ton..y, Thee d, Russell V. Fabyan, 28 N, H. 543, 61 2 Salk. 413. Am. Dec. 629. In Cornelius v. Rosen, 111 Mo. 3T0 See post, § 182 e (1). , App. 619, 86 S. W. 500, it was held •'1 Grimman v. Legge, 8 Barn. & C. that in the case of a tenancy from 324. month to month, if the tenant, upon In Blake v. Sanderson, 67 Mass. (1 receiving a notice to quit at the Gray) 332, it was held that the fact end of the month, relinquished pos- that the lessee left the premises and session before that time, he was authorized the lessor to enter and liable for such portion only of the fit them for a new tenant supported rent as might be regarded as accru- a finding of a contract to apportion ing before such relinquishment, the rent. No reason for the decision is given. 3T2Zule V. Zule, 24 Wend. (N. Y.) sTsa Hall v. Joseph Middleby, 197 76, 35 Am. Dec. 600; City of New Mass. 485. 83 N. E. 1114. See post § York V, Ketrhum. 67 How, Pr. (N. 182 j. § 176 APPORTIONMENT AS TO TIME. 1075 whole of the next accruing installment.*"-' This question as to the rights of a tenant at will is not likely to arise, in most juris- dictions, since, if the lease calls for a periodic rent, the lessee ordinarily becomes a periodic tenant.*^^ Occasionally, even when there had been no change of title to the reversion and the lease was still outstanding, the landlord has attempted, before the day fixed for payment, to recover a part of the rent. This, in view of the prohibition of apportionment as to time, he is obviously unable to do.^'^" The doctrine that rent shall not be apportioned as to time finds an application in determining- the liability for rent as well as in determining the right to rent. For instance, if a tenant assigns the leasehold interest, the assignee is liable for the whole installment of rent next falling due, and he cannot assert a lia- bility on the part of his assignor for a portion calculated up to the time of the assignment. Each assignee of the leasehold is liable for the entire rent which falls due during his ownership of the leasehold.^ea b. Statutory provisions for apportionment. The rule above referred to, by which the tenant under a lease from a life tenant is relieved from liability for rent upon the death of the life ten- ant, was changed in England by Stat. 11 Geo. 2, e. 19, § 15, which provided that if any tenant for life should die before the day for the payment of rent reserved on a lease which terminated on such death, his executors or administrators might recover from the under tenant a proper proportion of the rent, according to the length of time between the last rent day and the death of the tenant for life. This statute did not allow any apportionment when the lease was made by a life tenant in execution of a power, since in such case his death did not terminate the lease,^''^ nor, for the same reason, did it apply to the case of the death of a 374 Bowe's Case, Aleyn, 4; Anony- Ind. 476; Indianapolis, D. & W. R. mous, Keilw. 6.5; Klghly v. Bulky, 1 Co. v. First Nat. Bank, 134 Ind. 127, Sid. 338; Leighton_v^Theed, 2 Salk. 33 N. E. 679. 413. There is a dictum contra by s^ea Trask v. Graham, 47 Minn. Richardson, C. J., in Wentworth v. 571, 50 N. W. 917; Graves v. Porter. Abraham, Het. 53, Litt. 61. 11 Barb. (N. Y.) 592. And see 3T5See ante, § 14 b (2) (b) (c). cases cited post, note 382. 370 Earle v. Kingsbury, 57 Mass. stt Norris v. Harrison, 2 Madd. (3 Cush.) 206; Garvey v. Dobyns, 8 268; Ex parte Smyth, 1 Swanst. 337. Mo, 213; Raymond v. TKomas, 24 1076 RENT. J I7g life tenant of a reversion created before the creation of his estate.^^** Like-wise, it did not, apparently, apply to the case of a lease by a tenant pur auter vie, when the lease was termi- nated by the death of the cestui que vie?'^^ By the subsequent act of 4 & 5 "Wm. 4, c. 22, the previous act was in express terms made applicable to the case of leases made by tenants pur auter vie, and to all leases which terminated on the death of the per- son making the same, though not strictly tenant for life. This act also contained a provision for the apportionment of rent when, upon the death of any person interested in the rent, an- other person succeeded to the rent, the representative of the de- ceased i^erson being given an apportioned part of the rent, as when a tenant for life made a lease for years under a power, his representative, upon his death, taking a part of the rent calcu- lated to the time of his death.-'' s« But it did not authorize appor- tionment between the real and personal representatives of a ten- ant in fee.^^i By the latest English statute on the subject, that of 33 & 34 Vict. c. 35, the common-law rule has been greatly changed, it being provided that, in the absence of express stipula- tion, all rents are, like interest on money lent, to be considered as accruing from day to day and are to be apportionable accord- ingly, with the proviso that the apportioned rent shall not be regarded as due and payable before the time stipulated for th», payment of rent, that is, before the next rent day. The effect of this act is not only to apportion the rent as between persons entitled thereto in succession one after the other, but also to apportion the liability for rent, as when an assignee of a leasehold reassigns to another, so as to render him liable for a portion of the installment next becoming payable, calculated from the time of his acquisition of the leasehold to the time of his reassign- ment, and to render his assignee liable for the balance.^^^ 3T8 Botheroyd v. "Woolley, .5 Tyr-w. ssi Browne v. Amyot, 3 Hare, 173 : 522. In re Clulow's Estates. 3 Ky. & J. 379 Perry v. Aldrich, 13 N. H. 343, 689. 38 Am. Dec. 493 ; "Wykham v. Wyk- 382 gee Swansea Bank v. Thomas, ham, 3 Taunt. 316. 4 Exch. Div. 94; In re Howell ssopiummer v. -Whlteley, Johns. [1895] 1 Q. B. 844; In re South Ken- 585, 29 Law J. Ch. 247; -Wardroper sington Co-operative Stores, 17 Ch. V. Cutfield, 33 Law J. Ch. 605; Llew- Div. 161; Glass v. Patterson [1902] pllyn V. Rous, L. R. 2 Eq. 27. 2 Ir. 660. § 176 APPORTIONMENT AS TO TIME. 1077 In a number of states there are statutes corresponding to the earliest of the English statutes above referred to, authorizing the recovery of a proportionate part of the rent by the executor or administrator of a life tenant who has died after making a lease for years.**^ And in several, the benefit of such an appor- tionment is also given to one entitled to rent which is dependent on the life of another person, upon the death of such other per- son, as in the case of the second English statute.**^ Occasionally the statute, after expressly providing for the recovery of a pro- portionate part of the rent by the personal representative of the life tenant, expressly authorizes the recovery of the "residue" by the remainderman,^*^ while a few of the statutes provide that, if the rent is paid in advance, the tenant shall recover back from his landlord, or his landlord's representative, a proportioned part of the rent paid.**^ There is in New York a statute "^^ substantially similar to the English statute of 4 & 5 "Wm. 4, c. 22. It has been held in that state, following the construction placed on the English statute, that the language of the provision does not authorize apportion- ment of the rent between the personal representative and the 383 See Klrby's Dig. St. Arkansas asi Delaware Rev. Code 1893, p. 1904, § 4688; Delaware Rev. Code 867; Iowa Code 1897, § 2298; Missis- j_ 1893, p. 867; Kurd's Rev. St. Illinois gippi code 1906, § 2881; Iforth Caro- f 1905, c. 80, § 35; Burns' Ann. St. ,j„^ Revlsal 1905, § 1987; Virginia Indiana 1901, § 7104; Iowa Code ^^^^ ^gp^ g 2810; West Virginia Code 1897. § 2988; Kentuclcy St. 1903, ^^^^ ^ g^^g ^^.^ ^^^ ^^ ^^^ p^^. 5 3865; Mississippi Code 1906, § ^ . , ...... 2881; Missouri Rev. St. 1899, § 4098; P°^« "^ occasional provisions (Kir- 2 Vew Jersey Gen. St. p. 1915,' 8 2; ">••« Dig. St. Arkansas 1904, § 4689: New York Real Prop. Law, § 1»3; Burns' Ann. St. Indiana 1901, § South Carolina Civ. Code 1S02, § 7101; ^/issouri Rev. St. 1899, § 4099) 2408; Shannon's Code, Tennessee, that one entitled to rent dependent 5 4184; Wisconsin Rev. St. 1898, § on the life of another may recover 2i93_ arrears thereof unpaid at the death In Gudgel v. Southerland, 117 of such other. Iowa, 309, 90 N. W. 623, the repre- sss Kurd's Rev. St. 111. c. 80, § 35; sentative of the life tenant brought Burns' Ann. St. Ind. 1901, § 7104. an action for an apportioned part of ^^^ Delaware Rev. Code 1893, p. the rent against the remainderman, 867; Massachusetts Rev. Laws 1902, and it was held that he could not c. 129, § 9; Rhode Island Gen. Laws recover without showing how the 1896, c. 269, § 21. x rent was to be paid and what the 387 Code Civ. Proc. § flWfr. iV^ ^ ^ pro rata share would be. feS^ S .C^Y'^* 1078 RENT. § 176 heir or devisee of a teaant in fee dying during the rent period-^^*" And a decision that the statute authorizes an apportionment, as between the parties to a conveyance of the reversion during a rent period,^*® has been disapproved in subsequent decisions,^"" and rightly so, it would seem. The Massachusetts statute ^^^ provides that if the lessor has an estate terminable on a life or on a contingency, and such es- tate terminates before the end of a period for which rent is payable, or if an estate created by written lease, or an estate at will, is terminated by surrender, by notice to quit for nonpay- ment of rent, or by the death of any party, the landlord or his executor or adminstrator may recover a proportional part of the rent. This statute, it has been held, does not authorize an apportionment upon an eviction by a mortgagee having the legal title, this not involving the termination of the estate by "any con- tingency," which expression, as used in the act, refers to "the happening of some event affecting the nature and character of the estate itself, and an essential and necessary part of it, upon which the continuance of the estate depends. ' '^^^ jijor does it ap- ply when the tenancy is one at will and it is terminated by the landlord's conveyance to a third person.-^"*"' But it has been held to apply when the lessor's estate came to an end by reason of the exercise by the lessee of an option to purchase the prop- erty.'9* The two later English statutes, and likewise the New York statute, provide that the persons liable to pay the rents reserved by the lease or demise, or the land which was the subject thereof, shall not be resorted to for such apportioned parts, but the entire rents of which such portions form part shall be collected and recovered by the person or persons who, had the statute not been 388 In re Weeks, 5 Dem. Sur. (N. The Rhode Island statute (Gen. Y.) 194; Miller v. Crawford, 26 Abb. Laws 1896, c. 269, § 12) Is almost N. C. (N. Y.) 376. exactly similar. 389 In re Eddy, 10 Abb. N. C. (N. 392 Adams v. Bigelow, 128 Mass. Y.) 396; s. c. sub. nom.. People v. 365. Globe Mut. Life Ins. Co., 65 How. 303 Emmes v. Feeley, 132 Mass. Pr. 81. 346; Hammond v. Thompson, 168 300 In re Weeks, 5 Dem. Sur. (N. Mass. 531, 47 N. E. 137. Y.) 194; Miller v. Crawford, 26 sm withington v. Nichols, 187 Abb. N. C. (N. Y.) 376. Mass. 575, 73 N. E. 855. 301 Rev. Laws 1902, c. 129. 5 8. § 176 APPORTIONMENT AS TO TiMK. 1079 passed, would have been entitled to such entire rents; and such portion shall be recoverable from such person or persons by the parties entitled thereto. Such a provision has been held to pre- vent recovery by the lessor of any portion of an installment of rent if the land is sold, before such installment falls due, under a lien prior to the lease, there being in such case no person en- titled, apart from the statute, to the entire installment.^''^ And its effect would appear to be to prevent any recovery, under such a statute, of an apportioned part of the rent, by the represent- ative of a life tenant lessor dying before the rent day, for the same reason, that there is no person entitled to recover the entire rent. The remainderman is not such a person, it is conceived, since a lease by a tenaint for life, not acting under a power, is, after his death, absolutely void as regards the remainderman,**^ and is incapable even of confirmation by the latter, he being an utter stranger theretc.^'-^" Such a possible effect of this particu- lar provision of the statutes has, however, never been suggested. An apportionment in such a case could still be supported, pre- sumably, under the earlier statuto applying in terms to that particular case. Oceasionall}' the language of a statute, not primarily dealing with the apportionment of rent, may have the effect of author- izing such apportionment in a particular case. Thus, a provi- sion that a purchaser at execution sale shall have the rents till a resale or redemption has been regarded as entitling him to the rent from leased premises only until redemption or resale, though it is payable in advance and becomes due during such time.388 And in another case a provision that the purchaser shall "from the time of sale" receive from "the tenant in possession, the rents of the property sold" was held to give the purchaser a share of the installment next coming ilne, proportioned to the unexpired part of the rent period.^"" 395 O'Neill V. Morris, 28 Misc. 613, James v. Jenkins, Bull. N. P. 96 b. 59 N. Y. Supp. 1075. 3°' Byers v. Rothschild, 11 Wash. 396 Doe d. Simpson v. Butcher, 1 296, 39 Pac. 688. Doug. 50; Doe A. Potter v. Archer, 399 Clarke v. Cobb, 121 Cal. 595, 54 1 Bos. & P. 531; Roe d. Jordan v. Pac. 74. It appears to be assumed Ward 1 H. Bl. 96. In the opinion, wrongly, it is sub- 397 Ludford v. Barber, 1 Term R. mitted, that, apart from the statute, 90; Jenkins v. Church, Cowp. 482; the purchaser under a lien prior to 1080 RENT. § 177 c. Express stipulations for apportionment. Rent may be ap- portioned as to time by virtue of a stipulation to that effect, with- out reference to any statute upon the subject.^oo The most fre- quent instance of such a stipulation occurs, no doubt, in the case of a contract for the sale of land which is subject to a lease, the rent being in terms made apportionable as of the date either of the contract or of the conveyance. § 177, Payment of rent. a. Presumptions. The burden of showing payment of an in- stallment or installments of rent, as of any debt, is ordinarily upon the person asserting such payment.*""" The lapse of twenty years since the time for payment raises a presumption of payment, it has been held, even though the statute of limitations does not app]y,*"i this being an application of a doctrine asserted by English decisions in the case of a bond or note,*"'2 and freely applied in this country in other cases.*"' The giving of a written receipt for any particular installment of rent raisos a presumption that all previous installments have the lease would have the whole rent 102 N. W. 367, 110 Am. St. Rep. 349. next to fall due. See post, at notes 4oi Lyou v. Odell, 65 N. Y. 28; 623, 637. Central Bank of Troy v. Heyedorn, 100 Blake .v. Sanderson, 67 Mass. 48 N. Y. 260; Cole v. Patterson, 25 (1 Gray) 332; Perry v. Aldrich, 13 Wend. (N. Y.) 457; Jackson v. N. H. 343, 38 Am. Dec. 493; Hecht Davis, 5 Cow. (N. Y.) 123, 15 Am. V. Heerwagen, 14 Misc. 529, 35 N. Dec. 451. Y. Supp. 1090. In Bailey v. Jackson, 16 Johns. Where by agreement the tenant, (N. Y.) 210, 8 Am. Dec. 309, it was under a lease reserving an annual held that where a lease was made rent payable quarterly, held over "at in England of land in this country, the same rate," either party to have the subsequent removal of the les- the right, by a month's notice, to see to this country, the lessor's terminate the lease, the tenant was ignorance of his residence, . and the regarded as liable only for a propor- lessee's denial that he had ever paid tlonal part of the rent for the time rent or executed the instrument of during which he held over, this be- lease, were sufficient to rebut this ing construed as an agreement for presumption of payment arising apportionment. May v. Rice, 108 from the lapse of twenty years. Mass. 150, 11 Am. Rep. 328. 402 Anonymous, 6 Mod. 22; Oswald looa Jones v. Hausmann, 23 N. Y. v. Legh, 1 Term R. 270. Super. Ct. (10 Bosw.) 168; Mont- 103 See cases cited 22 Am. & Bng. somery v. Leuwer. 94 Minn. 133. Enc. Law {2cl Krl.) 593. § 177 PAYMENT. 1081 been paid, a presumption which is, howevei-, rebuttable.*"* The acceptance of an installment, without the giving of a receipt, will, it seems, have the same effect.*"^ The giving of a receipt for an installment will not, it lias been held, raise a presumption of the payment of installments which had become due from and dur- ing the tenancy of a person other than the one to whom the re- ceipt is given.''"* b. Giving note, bill, or bond for amount. Rent is regarded as a debt of a high nature, as high as one upon a sealed instrument,*"' and consequently the claim for rent is not extinguished by the fact that the tenant gives such an instrument for the amount of the rent, as would ordinarily be the case if rent were regarded as an ordinary simple contract debt, and the landlord has there- after the same remedies for the collection of the rent as he had before.*"^ And a a fortiori it is not extinguished by the giving of a note for the rent,*"" or a bill of exchange.*'" If, however, a 404 Brewer v. Knapp, 18 Mass. (1 recover a proportionate part of the Pick.) 332, 11 Am. Dec. 183; Ottens rent from the other tenant. V. Fred. Krug Brew. Co., 58 Neb. loo Snyder v. Kunkleman, 3 Pen. 331, 78 N. W. 622; Decker v. Liv- & W. (Pa.) 487; Judge v. Eager, 2 ingston, 15 Johns. (N. Y.) 479; Jen- Speer Law (S. C.) 436, 42 Am. Dec. kins V. Calvert, 3 Cranch, C. C. 21G, 380; Bailey v. Wright, 3 McCord Fed. Cas. No. 7,623. Law (S. C.) 484; Hilley v. Perrin, 405 See Terry v. Bale, 1 Dem. Sur. 3 Ga. App. 143, 59 S. E. 342; Horn- (N. Y.) 452. brooks v. Lucas, 24 W. Va. 4?3, 49 4i)c Wills V. Gibson, 7 Pa. 154. Am. Rep. 277; Giles v. Ebsworth, 10 407 Smith, Land!. & Ten. (3d Ed.) Md. 333; Sutliff v. Atwood, 15 Ohio p. 177; Willett v. Barle, 1 Vern. St. 186; Atkins v. Byrnes, 71 111. 490; Gage v. Acton, Carth. 511; Vin- 326; I>orrance v. Jones, 27 Ala. 630. cent V. Godson, 4 De Gex, M. & G. So the giving of a note does not 546. affect the right of the landlord to 408 Bates V. Nellis, 5 Hill (N. Y. ) a year's rent as against an execu- 651; Cornell v. Lamb, 20 Johns (N. tion creditor, under the statute of Y.) 407; Bailey v. Wright, 3 Mc- Anne. Fife v. Irving, 1 Rich. Law Cord (s'. C.) 484; Smith, Landl. & (S. C.) 226 (post, § 183). Ten. (3d Ed.) 177; 1 Rolle, Abr., The fact that the note is secured Dett, Extinguishment (A), pi. 2, p. by a chattel mortgage is immaterial. 605. In Howell v! Webb, 2 Ark. 360, Atkins v. Byrnes, 71 111. 326; Lof- however, it is decided that if one sky v. Maujer, 3 Sandf. Ch. (N. Y.) of two tenants under an oral lease 69. gives his individual bond for the 4io loux v. Pox, 171 Pa. 68, 33 Atl. rent, the claim for rent is extin- 190 (bank check); Arguelles v. suished, and consequently he may Wood. 2 Cranch. C. C. 579. Fed. Cas. 1082 RENT. jj ]77 bond or note is accepted in satisfaction of the rent, it operates as an absolute payment, and thereafter the landlord has no remedy for the collection of the rent as such, but must proceed upon the bond or note.^^^ In this country it has been held that, by the giving of a note, bill, or bond for the rent, the remedy for nonpayment of the rent is postponed until the maturity of the instrument thus given, ap- parently on a presumption to the effect that such was the inten- tion of the parties.^12 Iq England there is, it seems, no such pre- sumption, but the giving of the note or bond is to be considered })y the jury as evidence, together w^ith the circumstances under which it was given, to determine whether such was the inten- tion."3 c. Payment before rent due. At common law a payment of the amount of the rent before the day on which the rent became No. 520 (tenant accepting land- credit to tlie landlord on his ac- lord's draft). count as if tlie tenant had paid the 111 Drake v. Mitchell, 3 East, 251 ; rent in money, it was held to be a Columbia Iron Co.'s Appeal, 114 Pa. question for the jury whether the 66. transaction constituted^ a discount In Howland v. Coffin, 26 Mass. (9 of the bill by the agent for the Pick.) 52, it was regarded as prop- tenant, in which case the rent was erly a question for the jury whether paid, and a distress was improper, a note was accepted as payment of or was a mere advance of the rent the rent. by the agent to the landlord, in In Mulligan v. Hollingsworth, 99 which case the landlord could still Fed. 216, where the lease provided distrain. that the lessee should give his note, 412 Judge v. Eager, 2 Speer Law at one year, and should pay the (S. C.) 436, 42 Am. Dec. 380; Bailey taxes "as additional rent," and v. Wright, 3 McCord Law (S. C.) there was no other stipulation as to 484; Fife v. Irving, 1 Rich. Law (S. rent, it was held that the execution C.) 226; Hornbrooks v. Lucas, 24 W. of the note was payment of the Va. 493, 49 Am. Rep. 277 (suspends rent, and hence that payment of the right of distress), note was not payment of the rent, iia Palmer v, Bramley [1895] 2 so as to involve a waiver of a pre- Q. B. 405, distinguishing Davis v. vious forfeiture for waste. Gyde, 2 Adol. & B. 623, as having In Parrott v. Anderson, 7 Exch. been decided on the pleadings. 93, where a tenant gave to the land- This cape is followed in Colpitts v. lord's agent a bill of exchange for McCullough, 32 Nova Scotia, 502. the amount of rent due, and the See, also, Simpson v. Howitt, 39 U. agent endorsed the bill over to a C. Q. B. 610. third person, and afterwards gave § 177 PAYMENT. 1083 due did not operate as a discharge,*'^ and it did not even prevent a re-entry for nonpayment of the rent on such subsequent day,*i* a distinction in this respect being taken between such a payment on account of rent and on account of a sum in gross.* ^^ Such a payment on account of rent to become due, w^as, however, suffi- cient in equity, no doubt, as against the person to whom it was made.*^'^ And there are probably but few, if any, jurisdictions in which at the present day it would be regarded as insufficient as against such person even at law, in view of the statutes au- thorizing equitable defenses. Though a premature payment on account of rent would thus be sufficient as a defense against the beneficiary of the payment, it is not, according to the common-law authorities above referred to, a paj-^ment of the rent, until the rent day has actually arrived. Such a payment, it is said by a distinguished English judge, "is not a fulfillment of the obligation imposed by the covenant to pay rent, but is, in fact, an advance to the landlord, with an agreement that on the day when the rent becomes due, such advance shall be treated as a fulfillment of the obligation to pay the rent,"*i^ and, accordingly, in that jurisdiction, a pay- ment of rent before it is due, while good as against the . per- son to whom it is made, is 'not good as against one to whom the reversion is transferred before the rent falls due.'^' In this country, however, a different view has been occasionally as- serted, to the effect that such a payment is effective as against a subsequent transferee of the reversion,*2o the result of which Cheuvront v. Bee, 44 W. Va. 8, 1, Brudnel, J., says that "if the 103, 28 S. E. 751. lessor covenants to repair the house ioi, ies See Graham v. Tate, 1 Maule and does not do it, the lessee can re- & S. 609, supra, note 458. pair it and stop so much money in 4C3 in re Gregg, 11 Misc. 153, 32 his hand in spite of his deed, and if N. Y. Supp. 1103. he has any trees growing upon the 404 See cases cited 14 Am. & Bng. place, he can cut them down and re- Enc. Law ('2d Ed.) 1031. 1092 RENT. J 177 i. Application of payments on rent. The rule ordinarily rec- ognized in this country, that, if a debtor in making a payment iails to state to which of one or more claims the payment shall 1)8 applied, the creditor may make such application as he may please, applies in connection with claims for rent as in other cases. Thus the landlord may, in such ease, apply the payment upon an unsecured claim rather than upon the rent, which is se- cured,*65 even though this results in a forfeiture of the lease- hold for nonpayment of rent.'*^^ And he may apply it on later installments of rent as against one who is surety for the earlier installments,**^ or he may apply it on earlier installments, which accrued before an assignment of the leasehold, as against the as- .signee.*"^ If no application of payments is made by either the tenant or landlord, they will be applied upon the installments of rent which first become due.""^ If colessees direct the application of a payment made by them upon the rent, the landlord cannot apply it upon an individual debt of one of them,*^" and, necessarily, if a single tenant directs •A payment to be applied on rent, the landlord cannot apply it otherwise.*''^ j. Pleading payment. At common law, in an action of debt for rent, that the rent has been paid might be shown under a plea of nil debet, of rien in arrear, or of payment, while if the rent had been satisfied by distress the plea was levie per distress. In assumpsit, evidence of paj'^ment could be given under the gen- eral issue. In covenant, payment was a proper plea, provided the payment was made upon the day on which the rent became due, but, if made subsequently, this itself involving a breach of the covenant, accord and satisfaction was the proper plea.*^^ Jn this coTintry the admissibility of evidence of payment under the •H55 Soluble Pae. Guano Co. v. Har- -ist Brewer v. Knapp, 18 Mass. (1 ris, 78 Ga. 20; Aderholt v. Embry, Pick.) 332, 11 Am. Dec. 183. 78 Ala. 185; Thatcher v. Tillory ^ss CoUender v. Smith, 20 Misc. (Tex. Civ. App.) 70 S. W. 782. 612, 45 N. Y. Supp. 1130. r.,, , •„ , T- „„n„„ *'' Reed V. Ward, 22 Pa. 144. The law will make such applica- ' .,,.,, , ^ "0 Kahler v. Hanson, 53 Iowa, lion, it has been decided, if the land- bya, b JN. W. ot, lord fails to do so. Garrett's Ap- ^,, Atkinson v. Cox, 54 Ark. 444, peal, 100 Pa. 597. 16 S. W. 124. See Avera v. McNeill, ^o Brown v. Larry (Ala.) 44 So. 77 n. C. 50. 841. ■t"Comyn, Landl. & Ten. 535-538. §178 TENDER. J093 general issue plea, the equivalent of the non debet or the non as- sumpsit of the common law, would presumably be determined, in connection with an action of rent, by the general rule in this regard which may, by reason of statute, or otherwise, apply to actions of contract generally.^'s while satisfaction by distress would presumably be required to be pleaded specially .^''^ § 178. Tender of rent. a. Effect of tender. A tender of rent on the day on which it is due, if kept good, is a defense to a subsequent action for rent, relieving the tenant from any liability for interest or costs.^'^s It also prevents a forfeiture for nonpayment of the rent so tendered,*'^® and a valid tender of the rent at any time will ren- der a subsequent distress illegal, unless the landlord demands the rent Ijefore distraining.'''^ 'f A valid tender of rent payable in crops has been held to pass the title to the crops tendered, and to place upon the landlord the risk and expense of their subsequent keeping.*'^'^ b. Time of tender. A tender made before the day on which the rent is payable is insufficient for any purpose, if not ac- f-epted by the landlord,*''" the same rule being applicable to a tender of rent as of any other debt.**" A personal tender of the rent after the day for payment, with interest and costs, is ordinarily sufiSeient to prevent a subsequent distress, unless the landlord thereafter demands the rent.^^i At common law it is not sufficient for other purposes, it seems,**'^ *73 See 16 Enc. Pldg. & Prac; 170et But if the landlord denies the re- seq.; Huhbard v. McCormick, 33 111. lation of tenancy, the tender need App. 486; Russell v. Pabyan, 28 N. not, it has been said, be repeated. H. 543, 61 Am. Dec. 629. Parlter v. Gortatowsky. 129 Ga. 623, 474 See Lear v. Edmonds, 1 Barn. 59 S. E. 286. & Aid. 157. 477 866 post, chapter XXXII. "5 Remsen v. Conklln, 18 Johns. 47s Fordyce v. Hathorn, 57 Mo. (N. Y.) 447: Walter v. Dewey, 16 120. Johns. (N. Y.) 222; Livingston v. 479 mingworth v. Miltenberger, 11 Miller, 11 N. Y. (1 Kern.) 80; Par- Mo. 80. ker V. Gortatowsky, 129 Ga. 623, 59 480 See 22 Am. & Eng. Ehc.Law (2d S. E. 286; Crouche v. Pastolfe, T. Ed.) 530; 28 Am. & Eng. Enc. Law Raym. 418. (2d Ed.) 20. 470 That it must be kept good, see 4ri See post, chapter XXXII. Occidental Real Estate Co. v. Gant- 482 That it is not, at common law. ner, 7 Cal. App. 727, 95 Pac. 1042. sufficient to prevent a forfeiture 1094 RENT. § 178 but it would, ordinarily, at the present day, if kept good, be sufficient to prevent a forfeiture.*** In most states, presumably, a tender, after the day for payment, of rent, as of most other debts, is sufficient to exclude liability for subsequent interest and costs.*** e. Place of tender. If a particular place is named for the payment of rent, a tender elsewhere is insufficient.**^ The les- see's right to make tender at the particular place named by the lease is, however, waived, it has been decided, if, when called on for the rent on the premises, he promises to pay it the next day at the lessor's- office, and refuses to pay it the next day when called on for it on the premises, and then tenders it at the place named by the lease, at which place there is no person to receive it.**** If no place for payment is named, the tenant may make tender at any place at which he may find the landlord,**^ unless, it seems, the rent to be paid consists of grain or other bulky ar- ticles, in which case it is his duty to deliver them on the land.*** d. Person to whom tender to be made. The tender must ordinai'ily be made to a person entitled to receive the rent, that would seem to follow from the fact v. Le Conte, C Cow. (N. Y.) 728; Co. that even acceptance of the rent Litt. 210. h. after it is due is not suflBcient to 4ss Fordyce v, Hathorn, 57 Mo. prevent a forfeiture for its nonpay- 120; Remsen v. Conklin, 18 Johns. ment. See post, § 194 i (1) (b), (N. Y.) 450. But if the articles are at note 214. That tender after the to be delivered in a certain city, date for payment is not sufficient the tenant must ascertain at what in actions for a personal debt, see place in the city the landlord wishes Dixon V. Clark, 5 C. B. 379; Hume them delivered. Lush v. Druse, 4 V. Peploe, 8 Bast, 168; Poole v. Turn- Wend. (N. Y.) 313. bridge, 2 Mees. & W. 223. In Holt v. Miller (Tex. Civ. App.) 183 See post, § 194 1 (3). 32 S. W. 823, it is decided that the ■484 See 28 Am. & Eng. Enc. Law fact that the landlord had asked (2d Ed.) 12; Hunt, Tender, |§ 281, the tenant where he should deliver 363, 364; 11 Cyclopedia Law & Proc. his share of the crop rent, and 71, 77; 22 Cyclopedia Law & Proc. that the landlord had refused to 1555, 1557. tell him, did not justify the tenant *85Bac. Abr., Tender (C) ; Start- in removing a part of the crop, up V. Macdonald, 6 Man. & G. 623, though enough was left to pay the opinion of Parke, B. rent, the landlord having in the <9fi Fisher v. Smith, 48 111. 184. meanwhile notified him of the place 48- Bac. Abr., Tender (C); Cropp for delivery, but no delivery having v. Hambleton, Cro. Eliz. 48; Hunter been made. § 178 TENDER. 1095 is, either to the landlord hiinself,*^* or to the agent of the land- lord,*^" as, for instance, the officer charged with the levy of a distress warrant.*'! e. Tender in landlord's absence. There are cases to the ef- fect that, if no place of payment is named, the land being re- yarded as the place for tender in such case, the presence of the tenant on the land, upon the day fixed for payment, prepared to pay the rent, is equivalent to a personal tender for the purpose of an action of debt, provided he keeps the tender good,*82 though it was held otherwise on a plea by plaintiff in replevin, it being decided that the fact that the tenant was ready on the land, prepared to pay, without any tender, did not oblige the landlord to demand the rent before distraining.*"* In this country such a tender on the land has been regarded as sufficient as a defense to an action on a covenant for rent.*** It has been suggested in two cases that such a tender on the land is sufficient, even though the lease stipulates that the rent shall be paid at a place to be named by the landlord, if the landlord fails to name such place,*"^ though it was actually decided merely that a tender of some sort is not excused under such circumstances by the fact that the landlord fails to name the place.*^'' The view that a tender is 489 Smith V. Goodwin, 4 Barn. & ■'i'* Walter v. Dewey, 16 Johns. (K. Adol. 413; Browne v. Powell, 4 Bing. Y.) 222. 230. ■"■■'' See opinions of Spencer, C. J., 400 Bennett v. Bayes, 5 Hurl. & N. in Remsen v. Conklin, 18 Johns. (N> 391 Y.) 448, and of Selden, J., in Living- 491 Hatch V. Hale, 15 Q. B. 10; ston v. Miller, 11 N. Y. (1 Kern.) 80. Howell V. Listowell Rink & Park Where the payment was to be Co., 13 Ont. 476; Hilson v. Blain, 2 made at such a place, within a city Bailey Law (S C.) 168. distant from the land, as the land- 402Crouche v. Fastolfe, T. Raym. lord should designate, it was held 418- Brownlow v. Hewley, 1 Ld. that the tenant must, if the land- Raym 82. Contra, semble, Osborn lord failed to designate a place, seek V Beversham, 1 Vent. 322, 3 Keb. «"* the landlord to inquire as to o T ono the place, and that if he could not SOU, L Lev. zuy. «,.,,.,,■, , , . ^ . ., , J -D^,,™ find the landlord, probably any suit- 493 Home v. Lewm, 1 Ld. Raym. ■ .v •+ i.. v, « „. able place in the city would b9 suffi- 639, Saik. 583; Cranley v. Kings- ^.^^^ ^^^^ ^ ^^^^^ ^ ^^^^ ^^ well. Hob. 207; Vin. Abr., Rent (I), y^ 3^3 There is a dictum, apparently to the 406 Livingston v. Miller, 11 N. Y. contrary, in Remsen v. Conklin, 18 (j Kern.) 80; Remsen v. Conklin, Johns. (N. Y.) 448. 18 Johns. (N. Y.) 447. 1096 RENT. § n^ sufficient if made on tlie premises, when no place for payment of rent is named by the lease, has been repudiated in England, so far as tender may be asserted as a defense to an action on a covenant, as distinguished from debt, for rent, it being decided that the mere presence of the tenant on the premises, with the amount of the rent, on the day fixed for payment, is not a good defense, if the landlord was not there to receive it, and that a covenant to pay rent "is analogous to a covenant to pay a sum of money in gross on a day certain, in which case it is incumbent upon the covenantor to seek out the person to be paid, and pay or tender him the money, and for the simple reason that he has contracted so to do."*^" The requirement, imposed by this latter case, that the tenant seek out the landlord in order to make a valid tender, seems to be restricted to cases in which the land- lord is within the jurisdictiori,*®^ and it has been decided in this country that when the landlord is a nonresident of the state, with no resident agent, he cannot claim a forfeiture because the tenant failed to seek him out, and that it is to be presumed that payment was to be made in the city where the premises were Iocated.^3 Conceding that, without any personal tender, the tenant's pres- ence on the land, prepared to pay, is equivalent to a tender, this iQust be during daylight, and at the most convenient time before sunset to count the money or examine the articles tendered,^"" such being the rule ordinarily applicable to a tender to be made at a particular place.^"! Bixt a personal tender is good at any time during the day.''"" *'Ji Haldane v. Johnson, 8 Bxch. rent." In Walter v. Dewey, IC 689. Johns. (N. Y.) 222, a plea of readi- *98 Haldane v. Johnson, 8 Exch. ness to pay on the land for three 689. And see Co. Litt. 211 a. hours before sunset and at sunset *99 Burnes v. McCuhbln, 3 Kan. was regarded as sufficient. In Pur- 222, 87 Am. Dec. 468. ser v. Prowd, Cro. Jac. 423, it is 500 Tinckler v. Prentice, 4 Taunt, said that, conceding that the tender 549. And see Startup v. Macdonald, on the land is sufficient, it must be 6 Man. & G. 623, opinion of Parke, J. pleaded to be made "the last in- In Crouche v. Fastolfe, T. Raym. stant." 418, a plea of tender was regarded soi Bac. Abr., Tender (D). See as sufficient when the defendant al- cases cited 28 Am. & Bng. Enc. Law leged that he was on the premises (2d Ed.) 22. "by the space of an hour before sun- soz Wade's Case, 5 Coke, 114a; rise until sunset, ready to pay the Keating v. Irish, 1 Lutw, 227. § 179 RECOVERY OF MONEY PAID AS RENT. 1()97 The sufficiency of a tender upon the land in the landlord's absence, on the day for payment, in order to prevent a forfeiture for nonpayment, would seem to be involved in the requirement of a demand of the rent upon the land on that day, as a pre- requisite to a forfeiture for this cause.^o^ since the landlord, so demanding the rent, is necessarily present. The effect of the statutes dispensing with the requirement of such a demand^o-t might be to make a tender on the land in the landlord's absence, on the day on which the rent becomes due, insufficient to prevent a forfeiture for nonpayment, if the tenant fails to pay upon a subsequent demand. The statutes dispensing with the necessity of the landlord's presence on the land to make the demand would be in great part nugatory if a tender on the land in his absence would exclude the forfeiture. f. Tender must be unconditional. A tender of rent, as of any other debt, must be unconditional, and consequently a tender is insufficient if it is such as to require the landlord to admit that no more than is tendered is duc^o^ But the fact that, at the time of the tender, the tenant makes a statement that this is all the rent due, does not necessarily preclude the landlord from thereafter denying the truth thereof,^"® and consequently a tender may be good though the tenant at the same time states that it is ■'to settle one year's rent,"^'"^ or that "here is your quarter's i-ent.'-sos S 179. Recovery of money paid as rent. The general rule that a paj^ment voluntarily made, with knowl- edge of the existing facts, cannot be recovered back by the per- bcn making it, applies in the case of a payment intended to be on account of rent, which is made when no rent is due, or to a person not entitled to the rent.^"* The fact that the landlord, in the bona fide belief that rent is due, has threatened to dis- 503 See Hill v. Grange, 1 Plowd. '■"» Manning v. Lunn, 2 Car. & K. 164; Wade's Case, 5 Coke, 114 b. 13. As to demand, see post, § 149 f (1). 509 McCardell v. Miller, 22 R. I. 504 See post, § 194 f (2). 96, 46 Atl. 184; Emmons v. Scudder, 505 Finch v. Miller, 5 C. B. 428. 115 Mass. 367; Lewis v. Hughes, 12 5o«Bowen v. Owen, 11 Q. B. 130. Colo. 208, 20 Pac. 621. So it was 507 Jones V. Bridgman, 39 Law T. held that the tenant, knowingly pay- (N. S.) 500. ing an excessive amount, could not 1098 RENT. § 179 traiaj^i" or has threatened to eject the tenantj^^i has been held not to be such duress as entitles the tenant to recover back money so paid. If a tenant pays the rent to the wrong person under the mis- taken impression that the title to the reversion is in such person, the payment is under a mistake of fact, entitling him to recover back the payment."!^ But if the tenant is chargeable with notice of a transfer of the reversion, as when it is by proceedings to which he is a party, he cannot, it has been held, claim that pay- ments of rent to the former owner were under mistake of fact.^^* And the tenant cannot recover rent paid to his lessor or his lessor's transferee on the ground that the lessor had no title when he made the lease, if he, the tenant, has enjoyed the prem- ises for the full period for which such rent is paid,^i* this being a corollary of the rule that such defect of title is oio defense to an action for the rent.^^^ The tenant has in a few cases been regarded as entitled to recover back payments of rent made in advance as stipulated by the lease, when, without being himself in fault, he has not en- joyed the possession of the demised premises for the period for which the rent was paid. So it has been decided that rent paid in advance might be recovered back by the tenant when the term came to an end upon a sale by the landlord, as stipulated by the lease,^!® and upon a "subsequent abandonment of the lease by the mutual consent of both parties, "^i''' and when the buildiag in which the apartment let was situated was not completed at the time possession was to commence.'''^ And it has been said recover the excess. Connerly v. In- part of the premises had been con- man, 79 Atk. 629, 95 S. W. 138. demned by proceedings to which he 510 Colwell V. Peden, 3 Watts was a party. (Pa.) 327; Knibbs v. Hall, 1 Esp. 5i4 Dwinell v. Brown, 65 Ga, 438, 84. 38 Am. Rep. 792. sii Emmons v. Scudder, 115 Mass. sis See ante, § 78. 367. 516 Weeks v. Hunt, 13 Vt. 144. 512 Barber v. Brown, 1 C. B. (N. an Barth v. Jones, 7 Colo. 464, 4 S.) 121; Newsome v. Graham, 10 Pac. 781. Barn. & C. 234; Egan v. Abbett, 74 6i.s Meyers v. Liebeskind, 46 Misc. N. J. Law, 49, 64 Atl. 991 (semble). 272, 91 N. Y. Supp. 725; Fallis v. 6i3McCardell v. Miller, 22 R. I. Gray, 115 Mo. App. 253, 91 S. W. 96, 46 Atl. 184, where the tenant 175. paid the full rent to the lessor after § 179 RECOVERY OF MONEY PAID AS RENT. 1099 that rent paid in advance may be recovered back by the tenant if he is evicted by the landlor'd.5i9 These cases do not state the theory on which they are to be regarded as based. It may be remarked that the view that a tenant under a lease, which requires the payment of each installment of rent in advance, may, upon the occurrence, during the rent period, of a contingency which deprives him of the right of possession, recover back such portion of tlie installment so paid as corresponds to the portion of the period during which he is deprived of enjoyment of the premises, involves a clear infringement of the rule forbidding the apportionment of rent as to time,B2o since it could hardly be contended that he is entitled to recover back the whole install- ment when he has enjoyed the use of the premises for part of such period. Ordinarily, if the tenant is deprived of possession without his fault, whether l)y the landlord, or one claiming under paramount title, he may obtain hill satisfaction in an action for damages,s2i g^jj ^he fact that rent has been paid for a period greater than that during which he was allowed to enjoy pos- session might be considered, it seems, in fixing the qiumtum of recovery. In eases in which the loss of possession is due to the stipulations of the lease, he may lose his advance payment, but this is merely a natural and legal result of the stipulation for payment in advance. One who agrees to pay in advance cannot well complain if, as a result of the agreement, he is in a position different from that in which he would be had he not so agreed. The decision above referred to, that the lessee may recover the rent paid by him in advance in case of the "abandon- ment of the lease by the mutual consent of both parties, "^22 by which is meant, presumably, a surrender of the leasehoId,52» seems most questionable. The tenant, if he is unwilling to sur- render without being repaid his advance payment, should obtain such repayment, or an express stipulation therefor, before mak- ing the surrender. One cannot, after recovering damages on account of injury caused by concealed defects in the premises, recover back the sisAlper V. Kennedy, 49 Vt. 109, 521 See ante, §§ 79, 81; post, § 24 Am. Rep. 117; Hyman v. Jockey 185 i. Chib Wine, Liquor & Oigar Co., 9 522 See ante, note 517. Colo. App. 299, 48 Pac. 671. 523 See post, chapter XVIII. 520 See ante. § 176 a. 1100 RENT. J 18(, payments of rent made by him during his occupancy under the lease.''24 § 180. Persons entitled to the rent. a. Lessors. The lessor or lessors who made the lease, and in i'avor of whom the rent is reserved, are the persons entitled to each installment of rent as it falls due, unless and until the right thereto has become divested out of them by a transfer, voluntary or involuntary. The question whether one of two or more joint lessors should or may sue alone to recover rent is subsequently diseussed.^-^ b. On transfer of the reversion — (1) Rent ordinarily passes. Upon the transfer of the reversion by the lessor, the right to rent thereafter to become due is no longer vested in him.^^o rpjje transferee for the time being becomes the landlord, and as such is entitled, by reason of his privity of estate with the tenant, to the rent reserved by the lease,^^^ and such right he may enforce at common law by an action of debt.-"*-^ He has also the right to sue upon the covenant for rent, the benefit of which passes to him under the statute of 32 Hen. 8, c. 34, or state statutes to a like effect.s^^' ^^° Occasionally a state statute provides in terms for the recovery of rent by a transferee of the reversion or of the rent.^^^ As against the original lessee, after the latter has 5=* Stevens v. Pierce, 151 Mass. Isenberger, 45 Iowa, 670; Page v. 207, 23 N. B. 1006. Culver, 55 Mo. App. 606; Burns v. 525 See post, § 293 c. Cooper, 31 Pa. 426. 520 Walker's Case, 3 Coke, 22 a; 528 "v^'^alker's Case, 3 Coke, 22 a; Peck V. Northrop, 17 Conn. 217; Ards v. Watkin, Cro. Eliz. 637, 651; Grundin v. Carter, 99 Mass. 15; Thursby v. Plant, 1 Wms. Saund. Perrin v. Lepper, 34 Mich. 292; Al- 237, 1 Lev. 259; Allen v. Bryan, 5 len V. Hall, 66 Neb. 84, 92 N. W. Barn. & C. 512; Howland v. Coffin, 171; Abbott v. Hanson, 24 N. .1. Law 29 Mass. (12 Pick.) 125; Patten v. (4 Zab.) 493; West Shore Mills Co. Deshon, 67 Mass. (1 Gray) 325; V. Edwards, 24 Or. 475, 33 Pac. 987. Outtoun v. Dulln, 72 Md. 536, 20 and cases cited post, note 533. Atl. 134. 527 A crop rent passes with the re- 529, 530 gee ante, § 149 b (1). version as well as a money rent. 531 See e. g., Kentucky St. 1903, i Dixon V. Niccolls, 39 III. 372, 89 Am. 2304; Missmiri Rev. St. 1899, § 4126: Dec, 312; Beach v. Barons, 1.^ Barb. Virginia Code 1904, § 2788; West (N. Y.) 305; Schell v. Simon, 66 Virpinin Code 1906, § 3401. Cal. 264. 5 Pac. 238; Townsend v. § 180 PERSONS ENTITLED. IK)] assigned the leasehold interest, the transferee of the reversion can assert his claim for rent only upon the covenant.^*^ The courts, in asserting the right of the transferee of the rever- sion to recover rent, do not ordinarily state expressly whether the recovery is to be supported upon the ground of privity of estate or privity of contract, biit in adopting, as they frequently do, the language of the old books, that the rent follows the re- version as incident thereto,^^^ they tend to show that the trans- feree's recovery of rent is, in the particular case, to be regarded as based on privity of estate. In those jurisdictions in which the old forms of action are retained, the answer to this question appears from the character of the action itself, covenant or assumpsit being appropriate when the liability is asserted on the ground of privity of contract and debt being appropriate in the other ease.53'' (2) Effect of partial transfer. In case the reversion in mere- ly a part of the leased land is transferred to a particular person, he is entitled to a proportionate part only of the rent to accrue, the transferor, or the person to virhom the reversion in the residue of the premises is transferred, being entitled to the balance.''^* One to whom the landlord makes a subsequent concurrent lease^*" is entitled to the rent, as being a transferee of the re- 532 Humble v. Glover, Cro. Bliz. 55 Mo. App. 606; Shaw v. Partridge, 328; Walker's Case, 3 Coke, 22 a. 17 VI. 626; West Shore Mills Co. v. 533 Butt V. Ellett, 86 U. S. (19 Edwards, 24 Or. 475, 33 Pac. 987. Wall.) 544; Steed v. Hinson, 76 534 See post, § 290. Ala. 298 ; Winestine v. Ziglatzki- ■•■ss Collins v. Harding, 13 Coke, Marks Co., 77 Conn. 404, 59 Atl. 496; 58; West v. Lassels, Cro. Bliz. 851: Dixon V. Niccolls, 39 111. 372, 89 Bliss v. Collins, 5 Barn. & Aid. 876; Am. Dec. 312; Martin v. Martin, 7 Swansea v. Thomas, 10 Q. B. Div. Md. 368, 61 Am. Dec. 364; Burden v. 48; Worthington v. Cooke, 56 Md. Thayer, 44 Mass. (3 Mete.) 76, 37 51; Ehrman v. Mayer, 57 Md. 612, Am. Dec. 117; 'Evans v. Hamrick, 40 Am. Rep. 448; Crosby v. Loop, 13 61 Pa. 19, 100 Am. Dec. 595; Miller 111. 625; Linton v. Hart, 25 Pa. 193, V Stagner, 42 Ky. (3 B. Mon.) 58, 64 Am. Dec. 691; Dreyfus v. Hirt, 38 Am. Dec. 178; Taylor v. South- 82 Cal. 621, 23 Pac. 193; Pelton v. erland (Ind. T.) 104 S. W. 874; Mar- Place, 71 Vt. 430, 46 Atl. 63, 76 Am. shall V. Moseley, 21 N. Y. 280; Van St. Rep. 782. As to the mode of de- Wicklen v. Paulson, 14 Barb. (N. termining the proportion, see ante, Y.) 654; Van Wagner v. Van Nos- § 175 a, at notes 314. trand, 19 Iowa, 422; Page v. Culver, 536 See ante, § 146 d. ]102 RENT. §180 version, for the period named in such lease.^^T Occasionally the second lease expressly provides that the rent under the first lease shall be paid to the second lessee,^"^ but it does not seem that such a provision adds anything- to its effect, except as it may serve to show that it is a concurrent lease and not a lease in reversion. (3) Lease of land and chattels. It has been decided that, in the ease of a lease of land and personal chattels together, if the lessor transfers the land alone, the transferee is entitled to but an apportioned part of the rent reserved, ^^^ and it has been sug- gested that if, in such a ease, the land and chattels pass into the hands of different persons, the reijt might possibly be appor- tioned betv^een them.^^o There are decisions, hovsrever, that an executor of the lessor, though entitled to the chattels, has no right to any portion of the rent reserved on a lease of land and chattels.''*! This question of the apportionment of rent on a lease of land and chattels is elsewhere discussed.^^^ (4) Notice of transfer. As before statedj^^s the statutes, dis- pensing with attornment by the tenant to a transferee of the reversion, almost invariably provide that the tenant shall not be damaged by his payment of rent to the transferor before he has notice of the transfer, that is, the transferee cannot collect again rent which the tenant has, before notice of the transfer, paid to the person whom he supposed still to be the landlord, the effect being to impose on every transferee of a reversion the =37 Harmer v. Bean, 3 Car. & K. one having title paramount, and the 307; McDonald v. Hanlon, 79 Cal. question was whether the tenant, 442, 21 Pac. 861; Morris v. Niles, continuing in under an attornment 12 Abb. Pr. (N. Y.) 103; Russo v. by him to the paramount owner, Yuzolino, 19 Misc. 28, 42 N. Y. Supp. and using the chattels, could refuse 482; Logan v. Green. 39 N. C. (4 to pay the lessor, who was the right- Ired. Eq.) 370. ful owner of the chattels, for their 538 See Harmon v. Flanagan, 123 use. Upon the attornment to the Mass. 288; Root v. Trapp, 10 Kan. paramount owner, the tenancy as App. 575, 62 Pac. 248; Hendrickson to the land came to an end. V. Beeson, 21 Neb. 61, 31 N. W. 266. 54i Armstrong v. Cummlngs, 58 539Buffum V. Deane, 70 Mass. (4 How. Pr. (N. Y.) 332; Fay v. Hoi- Gray) 385. loran, 35 Barb. (N. Y.) 295. 5*0 Salmon v. Matthews, 8 Mees. & m2 See ante, § 169 c. W. 827. In this case, howeyer, ''43 See ante, § 146 f. there was a constructive eviction by § 180 PERSONS ENTITLED. 1103 necessity of notifying the tenant of the transfer in order to pro- tect his own interests. After he receives such notice, however, the tenant must pay to the transferee all rent which became due after the transfer and which is yet unpaid, though it became due before the giving of the notice.^*^ The notice must, by the English statute, be given by the gran- tee, in order to charge the tenant with the duty of paying the rent to the latter. The statutes in this country dispensing with attornment ordinarily provide merely that the tenant shall not be damnified by payments made without notice of the transfer, thus imposing the same obligation on the tenant, however he may obtain notice.^^^ The question whether a tenant, paying rent in advance of the day on which it is due, is protected, as against the claim there- for of one to whom the reversion is transferred between the day of payment and the rent day, has previously been dis- cussed.^*^- ^*'' (5) Rent already due. By a transfer of the reversion the right to rent still to become due alone passes, and it does not in any way affect the transferor's right to the rent which has already become due,^*^ unless there is an express provision in this 544 Moss V. Gallimore, 1 Doug. Thornton v. Strauss, 79 Ala. 164; 279; Pelton v. Place, 71 Vt. 430, 46 Bordereaux v. Walker, 85 111. App. Atl. 63, 76 Am. St. Rep. 782. 86; Damren v. American Light & 5«See ante, § 146 f. The South Power Co., 91 Me. 334, 40 Atl. 63; Carolina Statute (Civ. Code, § 2426), Outtoun v. Dulin, 72 Md. 536, 20 Atl. without in terms dispensing with 134; Wise v. PfafE, 98 Md. 576, 56 attornment, adopts the language of Atl. 815; Burden v. Thayer, 44 the statute of Anne providing that Mass. (3 Mete.) 76, 37 Am. Dec. the tenant shall not be prejudiced by 117; Farmers' & Mechanics' Bank payment of rent to the grantor be- v. Ege, 9 Watts (Pa.) 436, 36 Am. fore notice is given to him of the Dec. 130; Jones v. Latumus (Tex. grant by the grantee. Civ. App.) 40 S. W. 1010; Wlttrock In Gray v. Rogers, 30 Mo. 258, it v. Hallinan, 13 U. C. Q. B. 135. seems to be thought that the ten- On a like theory it was held that ant cannot defend against the les- a mortgagor, redeeming from a sale sor's claim for rent, on the ground under the mortgage, acquired no that the lessor has transferred the right to rent which became due be- reversion, unless the transferee has fore the redemption, but the pur- notified the tenant to pay rent to chaser was entitled thereto. Perk- him. erson v. Snodgrass, 85 Ala. 137, 4 540, B4T See ante, § 177 c. So. 752. 545 Flight V. Bentley, 7 Sim. 149; 1104 RENT. § 180 icgard.^*"' *»" The landlord may assign rent already due,^®^ but the assignee will take subject to the restrictions existent in that jurisdiction upon the right of an assignee of a chose in action to sue thereon in his own name or otherwise.^"'^ (6) Change of title on rent day. Since the tenant, though he may pay the rent at any time of the day on which the rent is payable by the terms of the lease, has the whole of that day in which to pay it,^^^ a question may arise as to the right to rent when the title to the reversion passes from one person to an- other in the course of that day. This question the courts have undertaken to solve by regarding the installment of rent as not due till the end of that day, and it has consequently been held that, if a tenant in fee simple, after making a lease, dies on the rent day, the installment of rent falling due on that day belongs, not to his personal representative, but to his heir or devisee, as having become due after his death.^'-'''' And on the same theory it was decided that if a tenant for life, with power to make leases, made a lease in conformity with the power, and subsequently r,49, 6S0 See post, note 551. of "rent due up to" a date named 551 United States v. Hickey, 84 U. was held to include such unpaid S. (17 Wall.) 9; Outtoun v. Dulin, taxes and water rents which had 72 Md. 536, 20 Atl. 134; O'Brien v. become a lien before that date. Smith, 37 N. Y. St. Rep. 41, 13 N. Woolsey v. Abbett, 65 N. J. Law, Y. Supp. 408; Id., 129 N. Y. 620, 29 253, 48 Atl. 949. Presumably, this N. E. 1029 (semble) ; Ramsey v. means that the lessor had a claim ,Tohn?on, 8 Wyo. 476, 58 Pac. 755, 80 to be paid the amount of such taxes Am. St. Rep. 948. See ante, § 149 and water rents, which claim passed b (9). by the assignment. There ia no A transfer by a lessor of all his discussion of the subject. See ante, "right, title and interest in and to § 169 h, as to taxes and water rents the lease," with authority to the as "rent." assignee to sue for and recover the 552 Damren v. American Light & rents as fully as the assignor could Power Co., 91 Me. 334, 40 Atl. 63; do, and stating that it was the pur- Burden v. Thayer, 44 Mass. (3 pose to put the assignee in the as- Mete.) 76, 37 Am. Dec. 117; Ryerson signer's place and stead, was held to v. Quackenbush, 26 N. J. Law (2 transfer the right to rent previously Dutch.) 236. due. United States v. Hickey, 84 053 See ante, § 172 h, at notes U. S. (17 Wall.) 9. 195, 196. Where the lease reserved as rent 554 Duppa v. Mayo, 1 Wms. Saund. $5,000 per year, and all taxes and 287; Rockingham v. Penrice, 1 P. water rents which might become a Wms. 177. lien on the premises, an assignment j^ 180 PERSONS ENTITLED. 1105 ilied on a rent day, the rent belonged to the person in remainder, and not to the executor of the life tenant.^^^ Likewise, it seems, in the ease of a conveyance of the reversion made upon that day, the transferee is entitled to the installment of rent then coming due.*^" The courts have, however, refiised to apply such a theory in the case of a life tenant, who, after leasing, not under a power, dies on a rent day, owing, presumably, to an unwilling- ness that the tenant should thus entirely escape liability ,^s'' and the rent has, in such a case, been decided to belong to the per- sonal representative of the life tenant.^^* c. Severance of rent from reversion — (1) Retention of rent on transfer of reversion. Though the rent to accrue prima facie passes on a transfer of the reversion, this is not the case if the transferor, by the terms of the instrument of transfer, retains the rent, thus effecting a "severance" of the rent from the re- version.ss* A conveyance of the land "subject to" the lease does not, it is evident, effect such a severance.^®" On the other hand, a pro- vision for the retention of possession by the transferor has ap- parently been construed, in connection with the conduct of the parties, as vesting the rent in him to the exclusion of the trans- feree,^^! as has a provision, on a transfer of the reversion by a concurrent lease,^^^ that "all rents received on account of" the prior lease should "be credited as part payments on the" con- current lease.'^^* The cases do not discuss the theory on which such a pro- vision, excluding the rent from the operation of the transfer,, takes effect, that is, whether it is to be regarded as in the nature- 555 Strafford v. Wentworth, Fin. Spring Co., 125 Mass. 157, 28 Am. Prec. 555, 1 Swanst. 343, note. Rep. 216; Steed v. Hinson, 76 Ala. B56See Hammond v. Thompson, 298; Bennett v. Austin, 81 N. Y. 168 Mass. 531, 47 N. B. 137. 308. 557 See ante, § 176 a. seo Gale v. Edwards, 52 Me. 363;. 558 Rockingham v. Penrice, 1 P. Biddle v. Hussman, 23 Mo. 597; Wms. 177; Southern v. Bellasis, 1 P. Disselhorst v. Cadogan, 21 111. App. Wms. 179, note; Strafford v. Went- 179. worth, Fin. Prec. 555. See note 56i Goodwin v. Hudson, 60 Ind. (17) to Duppa V. Mayo, 1 Wms. 117. Saund. 287. 502 See ante, § 146 d. 559Co. Litt. 143 a; Crosby v. Loop, soa Shea v. McCauliff, 186 Mass. 13 Til. 625; Beal v. Boston Car 509. 72 N. E. 69. Ta and Ten. 70. 1106 RENT. § 180 of an ' " exception ' ' from the grant, a ' ' reservation, " or a " grant back," by the transferee of the reversion, of the rent which has passed to him by the transfer. In favor of the vievp- that it con- stitutes a "grant back" is the fact that it does not answer to the common-law definition of an "exception," the office of which is to exclude from the operation of the conveyance some part of the things covered by the general words of description, nor to that of a "reservation," the office of which is to reserve to the grantor a thing "not in esse but newly created. "^s* That such a clause operates as a grant back to the transferor has been ap- parently asserted in an English case.^s^ g^i; ^j. seems doubtful whether this view wquld be ordinarily adopted in this country, as it would involve the necessity, in most cases at least, that the instrument of transfer should be executed by the transferee of the reversion, since a rent is an interest in land not ordinarily transferable otherwise than by signed writing.ss" It is more likely that the courts would regard it as a reservation, extending for this purpose the common-law theory of a reservation, as they have done in the case of the "reservation" of an easement.^^'' The fact that notes, given for the amount of the installments of rent to accrue, are retained by the lessor on making a transfer of the reversion, has, in two states, been held insufficient in it- self to preclude the passing of the rent-^''^ But a different view has, apparently, been taken elsewhere.^^" Accepting the theory that a provision excluding the rent from the operation of the transfer of a reversion is in its nature a 564 See Co. Litt. 21 a, 47 a, and 7 Mees. & W. 63; Corporation of other authorities cited 2 Tiffany, London v. Rlggs, 13 Ch. Div. 798. Real Prop. § 383, •"' See Tiffany, Real Prop. §§ 316, 305 Southwell V. Scotter, 49 Law ^^^• J. Q. B. 357. That is, Baggallay, =>«« Watkins v. Duvall, 69 Miss. „ , „^ . ^ ^ . 364, 13 So. 727; Beebe v. Coleman, Bramwell and Thesiger, J. J., refer „ „ . ,^^ ,^ ' „„„ „^ . _ 8 Paige (N. Y.) 392, 35 Am. Dec. to it as an assignment of the rent; _.._ which must mean an assignment or ^^^ g^^^^ ^ Hinson, 76 Ala. 298. grant back. In wilcoxon v. Donelly, 90 N. C. 500 As is in England required in 245, there is a dictum that the tak- 1he case of a "reservation" of an ing of a note for the rent in itself easement on a conveyance in fee. constitutes a severance. And Klm- See Durham & S. R. Co. v. Walker, ball v. Walker, 71 111. App. 309, is 2 Q. B. 940; Wickham v. Hawker, to the same effect. ^ 180 PERSONS ENTITLED. 1107 leservation,"'^" it -would, as such, constitute an integral part of the conveyance of the reversion, and an extrinsic agreement, whether written or oral, that the transfer should not have its xisual effect of passing the rent as an incident to the reversion would, it seems, be inoperative. Such a stipulation could hard- ly, on such a theory, be regarded as n "collateral agreement" within the parol evidence rule.'^''^ On the other hand, on tht* theory that such a provision is not a part of the act of transfer, but is, as being a "grant back,"^'^- a separate legal act, it seems that an extrinsic stipulation to that effect would be eft!ectual, as being a "collateral agreement," provided it is executed with such formality as the local law would require in any ease of the grant of rent apart from the reversion. That an extrinsic oral stipulation, reserving the rent upon a transfer of the reversion, is ineffectual, has been judicially reeognized,^^^ g.^^j ^he same view has, apparently, been taken of a separate written stipula- tion,^''* though there is elsewhere a contrary diviuni.^''^ (2) Transfer of rent without reversion. A severance of the rent from the reversion takes place not only when the landlord transfers the reversion without the rent, but also when he trans- fers the rent without the reversion/''^ 510 See ante, at note 567. (N. Y.) 274; Demarest v. Willard, 8 5'i See 4 Wigmore, Evidence, § Cow. (N. Y.) 206; Hunt v. Thomp- 2430. son, 84 Mass. (2 Allen) 341; Beal 572 See ante, at notes 565, 566. v. Boston Car Spring Co., 125 Mass. 573 Russell V. Allen, 84 Mass. (2 157, 28 Am. Rep. 216; Watson v. Allen) 42. Hunkins, 13 Iowa, 547; MofEatt v. 574 Hansen V. Prince, 45 Mich. 519, Smith. 4 N. Y. (4 Comst.) 126; 8 N. W. 584, 40 Am. Rep. 479. Gates v. Max, 125 N. C. 139, 34 S. ■■--•Allen V. Hall, 66 Neb. 84, 92 E. 266; Brownson v. Roy, 133 Mich. N. W. 171. And see cases cited 617, 95 N. W. 710. So it was held ante, note 569, as to the effect of that a grantee of the reversion, who the retention of a note given for thereafter takes an assignment of rent. the leasehold, is liahle as such as- 570 Litt. § 228; Co. Litt. 151 b; signee for rent to one to whom the Ards V. Watkins, Cro. Eliz. 637; rent had been assigned before he Marie v. Flake, 3 Salk. 118; Wll- acquired the reversion. Childs v. Hams V. Hayward, 1 Bl. & EI. 1040; Clark. 3 Barb. Ch. (N. Y.) 52, 49 Clarke v. Coughlan, 3 Ir. Law R. Am. Dec. 164. 427; Allen v. Bryan, 5 Barn. & C. The owner of the reversion may 512; Wineman v. Hughson, 44 111. thus transfer the rent as security. App. 22; Willard v. Tillman, 2 Hill Thomson v. Erskine, 36 Misc.' 202. 1108 RENT. § 18© . Rent/ that is, the right to the payment of the successive install- ments as they become due, is, by the common-law authorities, an incorporeal thing of a real character, and, as such, is transferable only by grant, that is, by an instrument under seal.^'^'^ That it was not, at common law, a chose in action, is apparent from the fact that it was so transferable.^'^'''' But the common-law view that rent, as an incorporeal thing real, can be transferred only by grant, that is, by an instrument under seal, is frequently ignored at the present day, there being a tendency on the part of the courts to treat it as a chose in action, assignable as such by any signed writing.^^* A mere order, drawn by the landlord upon the tenant, to pay the rent to a third person, accepted by the tenant, has been re- garded as constituting an assignment,^'^^ or at least an "equitable assignment" of the rent,^'''"' and such an order would, in most jurisdictions, presumably, be effective at least as an equitable assignment,' though not accepted by the tenant.^'^'"' Likewise, ■ the effectiveness, for the purpose of transferring the rent, of the transfer of a note, sriven by the lessor to the lessee as evidence 73 N. Y. Supp. 166; Thomson v. Lud- mouth. Bennett v. McKee, 144 Ala. lum, 36 Misc. 801, .74 N. Y. Supp. 601, 38 So. 129. 875. 579 Esling v. Zantzlnger, 13 Pa. In Swan v. .Inderlled, 187 N. Y. 50; Knill v. Prowse, 33 Wkly. Rep. 372, 80 N. E. 195, It was held that 163 (under Judicature Act), an assignment of the rent to accrue 570a Abrams v. Sheehan, 40 Md. under a certain lease which was in 446; Dennis v. Twitchell, 51 Mass. terms for one, two, or three years, (10 Mete.) 180; Morton v. Naylor, 1 at the option of the lessee, covered Hill (N. Y.) 583. In Crosby v. rent accruing during the whole Loop, 13 111. 625, 14 111. 330, it was three years. held that such an order, for the pay- 577 See Co. Litt. 9 a, 49 a, 172 a; ment of a part of the rent, did not Sheppard's Touchstone, 228; 2 amount even to an equitable assign- Blackst. Comm. 317; Willims, Real ment. Prop. (18th Ed.) 31; Dove v. Dove, o7ob See, as to the transfer of a 18 U. C. C. P. 424. fund by an order without accept 577a Co. Litt. 292 b. ance thereof by the del)tor, Pome- 578 See cases cited ante, note 576. roy, Eq. Jur. § 1280; 4 Cyclopedir It has been held In Alabama, hav- Law & Proc. 54. ing reference to a statute expressly That an unaccepted order is suffi- authorizing the assignment of rent, cient to transfer the rent, see Egan that it may be "by parol," meaning v. Abbett, 74 N. J. Law, 49, 64 Atl. thereby, apparently, by word of 991. I 180 PERSONS ENTITLED. 1109 of the indebtedness for rent, has been quite frequently recog- nized.'*''*' Rent already due was, even at common law, regarded as a chose in action, but the view referred to, that rent still to be- come due is feuch, and consequently may be transferred by a mere assignment, as distinguished from a common-law grant, appears to involve a departure from the original conception of rent as an interest in land. There is perhaps no impropriety in regard- ing the transfer of an installment of rent to become due in the future, or even of a number of such installments, as an assignment of a chose or choses in action,'*''*^ but there is more difficulty in thus regarding the transaction when the transfer is in terms of the "rent," without specific reference to the installments to be paid. This should, prima facie at least, it would seem, be con- strued as a transfer of an interest in land, of an "incorporeal hereditament" as expressed by Blackstone, and an incorporeal hereditament is transferable, by the common-law authorities, only by writing under seal. The question here suggested does not appear to have been judicially discussed. A transfer of the rent alone is quite frequently effected by a transfer by the reversioner in terms of "the lease," and occa- sionally the courts thus speak of a "transfer of the lease," mean- ing thereby a transfer of the rent to accrue under the lease. ''®° Since such an expression has a well understood significance as meaning the transfer of the leasehold interest, the interest creat- ed by the lease, and since, furthermore, a transfer of the rent is 57»cSee post, at notes 596a-603. 292; Thacker v. Henderson, 63 Barb. STOdBut such future installments (N. Y.) 271; Hunt v. Thompson, 84 were not so regarded at common Mass. (2 Allen) 341; Steele v. De law. See Co. Litt. 392 b. And the May, 102 Mich. 274, 60 N. W. 684; question suggests itself whether a Jones v. Smith, 14 Ohio, 606; Bord- transfer of all the installments of ereaux v. Walker, 85 111. App. 86; rent still to become due under a Griffith v. Burlingame, 18 Wash, lease having a long time to run, a 429, 51 Pac. 1059. In Some Illi- hundred years for instance, can be nois cases it is decided that the regarded as a transfer of a chose or "assignment of a lease" by Indorse- choses in action rather than of an ment thereon operates merely as an interest in land. equitable assignment. Chapman v. 580 See e. g.. Thorn v. Sutherland, McGrew, 20 111. 101; Bixon v. Buell, 123 N. Y. 236, 25 N. E. 362; Allen v. 21 111. 203; Buxbaum v. Dunham, 51 Wooley, 1 Blackf. (Ind.) 148; Carr 111. App. 240; Hefling v. Van Zandt, T. Waugh, 28 111. 418, 81 Am. Dec. en 111. App. 662. 1110 RENT. § 180 properly aiot a transfer of the lease, but merely of one particu- lar right created thereby, its use as referring to a transfer of the rent is to be deprecated.^^i Upon a transfer of the rent, apart from the reversion, the benefit of a covenant for rent passes to the transferee, it has been held, so as to authorize an action by him upon the covenant, against the lessee or an assignee of the leasehold,^®^ though the benefit of covenants concerning the condition of the premises merely does not pass in such case.^**^ Apart from any question as to whether the benefit of a covenant to pay rent thus passes with a transfer of the rent to accrue, the transferee can assert a claim to the rent on the ground of privity of estate, without reference to the covenant.^^* In this country it has been held that the benefit of a covenant to pay rent will run upon the transfer of rent reserved on a con- veyance in fee, a "perpetual lease," as it is sometimes termed,^^" In England a different rule in this regard apparently prevails.^*® But according to the modern decisions in that jurisdiction, an action in the nature of one for debt will lie in such case in favor of the transferee, as the owner of a rent charge, against the owner of the lanrl.^^' •-•81 See Potts V. Trenton Water Fisher, 1 Rawle (Pa.) 155, 18 Am. Power Co., 9 N. J. Bq. (1 Stockt.) Dec. 604; "trustees of St. Mary's 592; Demarest v. Willard, 8 Cow. Church v. Miles, 1 Whart. (Pa.) (N. Y.) 206. And see ante, § 146 b. 229; Cook v. Brightly, 46 Pa. 439. ■'82 Willard v. Tillman, 2 Hill (N. But see Irish v. Johnston, 11 Pa. 488. V.) 274; Wineman v, Hughson, 44 See, further, the discussion in notes 111. App. 22. to Spencer's Case, 1 Smith's Lead- '■83 Demarest v. Willard, 8 Cow. ing Cases (8th .Am- Ed.) 187-193. (N. Y.) 206. In Wright v. Hardy, 76 Miss. 524, "■s^Ards V. Watkin, Cro. Eliz. 637, 24 So. 697, the right of the grantee 651: Williams v. Hayward, 1 El. & of a rent reserved on a conveyance El. 1040; Allen v. Bryan, 5 Barn. & in fee simple to sue on the covenant r. 512; Ryersou v. Quackenbush, 26 to pay rent was based chiefly on N. .1. Law (2 Dutch.) 236; Kendall the statute authorizing assignees ot V. Garland, 59 Mass. (5 Cush.) 74, choses in action to sue thereon in 51 Am. Dec. 44. See Willard v. Till- their own name, man, 2 Hill (N. Y.) 274. "."o Milnes v. Branch, 5 Maule & 585 Scott V. Lunt's Adm'r, 32 U. S. S. 411; Randall v. Rigby, 4 Mees. (7 Pet.) 596; Van Rensselaer v, & W. 130, 135. Read, 26 N. Y. 558; VanRensselear V. ',87 Christie v. Barker, 53 Law J. Barriuarrr 3ft N. Y. 9: Streaper v, Q. B. 537: Searle v. Cooke, 43 Ch. §180 PERSONS ENTITLED. HH One to whom a ti-ansfer is made of the rent, apart from the re- '.ersion, presumably takes, as does any other transferee of an interest in land, subject to any equities in favor of another of which he has notice, and consequently his claim for rent would be subject to any defenses known to him at the time of the trans- fer, and which would have been available against the trans- feror.sss On the other hand, the transferee of the rent, if a purchaser for value, would take free from any equities of which he had no notice, actual or constructive.^^^, 500 (3) Rights of subsequent transferee of reversion. The ques- tion how far, after the rent has become severed from the re- version, either by its reservation on a transfer of the reversion, or by its transfer without the reversion, the owner of the re- version can, by any subsequent action on his part, affect the rights of the owner of the rent, has been discussed but seldom. If the owner of the reversion has transferred the rent to another, one to whom he subsequently transfers the reversion clearly ac- quires no right to the rent as incident to the reversion, if he lias notice of the previous transfer of the rent.^®'^ If he has no such notice, actual or constructive, he may, it has been decided, claim the rent as against the prior transferee thereof, ^^^ gj^d this would seem to be the proper view, provided he is a purchaser for valuo.59" Rent beins an interest in land, a conveyance there- Div. 519; In re Herbage Rents 60 N. W. 684. There are sugges- [1896] 2 Ch. 811. tions to th.i same effect in Leonard .'.88 In Hamaker v. Manheim Light, v. Burgess, 16 Wis. 41; Kimball v. Heat & Power Co., 2.5 Pa. Super. Ct. Pike, 18 N. H. 419. 484, it was held that where it was soa In Brownson v. Roy, 133 Mich, providerl by the lease that the ex- 617, 95 N. W. 710, it was held that pense of repairs should be borne a receiver to whom, by order of equally by the parties thereto, the court, the landlord had conveyed the lessee could deduct half of such ex- reversion, was not entitled to claim pense in making payment to a trans- the rent as against a prior trans- feree of the rent. feree of the rent. The decision 589, 500 See Juvenal v. Patterson, 10 may well be rested on the language Pa. 282. of the opinion of the lower court 591 Gross V. Chittim (Tex. Civ. that "the receiver appointed by the App.) 18 Tex. Ct. Rep. 906, 100 S. court, having only the title which W. 1006; Leonard v. Burgess, 16 was given him by deed executed un- Wis. 41. See Egan v. Abbett, 74 N. der the court's order, can only claim .T. Law, 49. 64 Atl. 991. such rights as (the landlord) him- r,02 step] V. Be May, 102 Mich. 274, self could have enforced," that is. 1112 RENT. § 18i of would appear ordinarily to be within the meaning and pur- pose of the recording laws, and, assuming that such is the case, the subsequent purchaser of the reversion would be affected bj the previous transfer of the rent to a purchaser for value, if suck transfer were recorded, and, in the absence of notice from other sources, only then. If, however, owing to the fact that the in- terest in the rent is for a brief period only, or for some other reason, the conveyance thereof is not within the recording law of the particular jurisdiction, the innocent purchaser of the rever- sion would take subject to the rights of the prior grantee of the rent.594 In the case of a transfer of the reversion, reserving the rent, a subsequent transferee of the reversion would, it seems clear, be charged with notice of such reservation contained in the trans- fer to his transferor, as being in his chain of title, provided the first transfer were recorded, and, even if it were not recorded, he could not claim the rent if he had notice otherwise of its sever- ance from the reversion.-'^'' And so a transferee of the reversion, taking with notice of a previous transfer of the rent to another, would take subject thereto. ^^^ (4) Rights of transferee of rent notes. In some parts of this country 'it is a quite frequent usage for one taking a lease for he was not a purchaser for value, whether a local statute gave the and the statement that the trans- rent to the purchaser in such case, feree of the rent was protected be- 591 In Trulock v. Donahue, 78 cause she had notified the tenants Iowa, 758, 40 N. W. 696, it Is de- to pay her the rent seems uncalled cided that rent is not "real estate," for. The dictum, moreover, that and that record of a transfer thereof rent is not an interest in land, is in the land records is not effectlTS not in accordance with the common- for the purpose of notice, law authorities. 393 But in Bettis v. McNider, 1S7 In Griffith v. Burlingame, 18 Ala. 588, 34 So. 813, 97 Am. St. Rep. Wash. 429, 51 Pac. 1059, it is held 59, it was held that one to whom an that a purchaser of the reversion at administrator, after making a lease, execution sale cannot claim the rent transferred the rent reserved there- as against the prior assignee of the on, could not claim it as against the rent. This decision may well be widow, to whom the land was sub- rested on the ground that such a sequently assigned as dower, the purchaser acquires only the execu- theory being that the widow's title tion defendant's actual interest, and related back to the time of her hus- not his apparent interest. 3 Free- band's death. man. Executions (3d Ed.) § 335. The s9n Abrams v. Sheehan, 40 Md. court only discusses the question 446. I 180 PERSONS ENTITLED. 1113 a brief term to give notes evidencing his subsequent liability for the installments of rent.^"''* When this is done, a question may readily arise as to the rights of an assignee of such notes as against one to whom the lessor transfers the reversion. It has been stated that one to whom notes so given are assigned by the lessor, after he has transferred the reversion to another, cannot assert a claim to the rent as against the transferee of the rever- sion,'*®^ and it has been decided, in effect, that he cannot assert such claim as against one claiming under an incumbrance on the reversion existing at the time of the assignment of the notes.^** On the other hand, there are decisions to the effect that, if the lessor has assigned the notes to another before transferring the re- Version, the transferee of the reversion cannot claim the rent, it having, by the previous assignment of the notes, been severed therefrom.^®^ These latter decisions suggest the question, be- fore referred to,^®®" whether a purchaser for value of the rever- sion, without notice, actual or constructive, of a previous trans- fer of the rent to another, should take subject to that transfer, and they seem to be to the effect that he must so take. The re- sult of this view is to put the purchaser of a reversion in a pre- carious position, as regards the right to the rent under the out- standing lease. It is unquestionable that a bona fide purchaser for value of such notes should, provided they are negotiable in characterjSo* not be precluded from their collection as against the maker by the fact that the reversion has been transferred to another, who purchased in ignorance of the existence of the 598a In Houston v. Smythe, 66 Oliver, 78 Ala. 158, citing Westmore- Miss 118, 5 So. 520, the fact that land v. Foster, 60 Ala. 448. rent notes were given by a lessee ^»8 Tubb v. Fort, 58 Ala. 277; and possible purchaser of land, pay- Dunton v. Sharpe (Miss.) 11 So. 168. able to the lessor bearer, wltTi the ^»» Alabama Gold Life Ins Co. v. intention that they should be trans- ferred to the holder of a deed of Oliver, 78 Ala. 158; Kimball v. Walker, 71 111. App. 309; Beebe v. Coleman, 8 Paige (N. Y.) 352, 35 trust on the land, and that they ^^ ^^^ ^^^ were so transferred, was held to .^^^ g^^ ^^^^^ ^^^ ^^^^^ 593^ 59^ make the latter the landlord, for the ooo That the notes show on their purpose of an attachment by him (abe that they are given for rent for rent. The theory of the decl- ^oes not, it has been decided, impair sion is that the nominal lessor was their negotiability. Buchanan v. acting as agent for the holder of the Wren, 10 Tex. Civ. App. 560, 30 S. deed of trust. W. 1077. Adoue v. Tanskersley 5»T Alabama Gold Life Ins. Co. v. (Tex. Civ. App.) 28 S. W. 346 Is 1114 UBNT. J 180 notes. But the fact that such notes have been given by the lessee,, even though they are utilized by the lessor in a way not antici- pated by him, does not seem ground for imposing a loss on the innocent purchaser of the reversion. If necessary to protect both innocent purchasers, the lessee should be subject to a double lia- bility, as having been the cause of the conflict of rights. ^^^ That is, the lessee, having by his act in unnecessarily executing a note to evidence the liabilty for rent which was otherwise evidenced by the stipulation for rent embodied in the lease, and having thereby enabled the lessor to transfer in effect separate evidences of one liability to different persons, should suffer any possible loss, as against either of such persons, in accordance with the i-ule that whenever one of two innocent parties must suffer by the acts of a third, he who enables such third person to occasion the loss must sustain it."'"- Though an innocent purchaser for value of the rent notes may be entitled to enforce them as per- sonal obligations of the maker, the lessee, he cannot properly, since he purchased them as such personal obligations only, com- plain that he is not allowed to enforce them as representing rent to the detriment of the innocent purchaser of the reversion. If, on the other hand, he did not purchase the notes as merely per- sonal obligations of the maker, but sought by the purchase to (>btain the rent, then he cannot Avell claim to stand in the posi- cited. The former case is cited in making of the lease by the payee. 1 Daniel, Negotiable Instruments, In Betlis v. McNlder, 137 Ala. 588, §§ 790, 797, to the point that the ne- 34 So. 813, 97 Am. St. Rep. 59, the gotiabllity of an instrument is not court regards the purchaser of a affected by the fact that it names "rent note," reciting that it was the consideration, the theory on given for rent, . as charged with which the case was decided. It notice of the payee's inability to might, however, be suggested that make a lease. This, however, was an indebtedness for rent is neces- an obligation for the delivery of sarily of such a future and con- cotton as rent, though the court tingent character that the recital in does not particularly refer to this the note that the sum named to be point. In almost every jurisdiction paid represents rent necessarily pre- an instrument payable in merchan- cludes the possibility of regard- dise is not negotiable. See 1 Dan- Ing the note as "payable uncondi- iel, Negot. Instr. §§ 55, 59. tionally and at all events," as it eoi This is perhaps involved in must be to be negotiable. The the decision in Rowland v. White, statement that the note represents 48 111. App. 236. rent is only inferentially a state- 002 Lickbarrow v. Mason, 2 Term ment of the consideration. The R. 63. See Ewart, Estoppel, c. 14; consideration for the note is the 2 Pomeroy, Eq. ,Inr. 803. § 1S() PERSONS ENTITLED. 1115 liou of an innocent purchaser of a negotiable instrument. In other words, he should not be allowed to assert that, by one and the same legal act, the acquisition of the notes, he is constituted both a purchaser of negotiable instruments and a transferee of an interest in laud. It is, indeed, not readily conceivable that an interest in land, such as rent, can be transferred by the mere transfer of a note given for the amount of the possible payments upon the rent. Such a case, it seems unnecessary to say, bears not the slightest analogy to that of a mortgage or other lien, which, as being merely an accessory or incident of the debt se- cured, and having no separate existence, is held to pass upon a transfer of the debt."*'" Rent is not a mere accessory or incident uf notes given for the amounts of the payments to be made, as is apparcDt from the fact that ordinarily such notes are not given. This whole matter of conflicting claims to rent, arising from the severance of the reat from the reversion, may be most equi- tably adjusted, it is submitted, by applying the ordinary rules de- termining priorities as between hona fide purchasers. If one pur- chases a reversion without notice, actual or constructive, that the rent has been transferred to another, he has ordinarily a right to the rent, and it is the duty of a transferee of the rent, desiring to protect himself against such subsequent transfer of the re- version, to record the transfer of the rent. The fact that notes were given for the rent would seem to have no bearing on the matter, unless this is known to the transferee of the reversion, or unless, perhaps, the giving of notes for the rent is, in that neighborhood, so usual that the purchaser of the land may be charged with notice of their existence by reason of his knowledge of the lease. d. Mortgagors and mortgagees. In those jurisdictions in which a mortgage vests the legal title and the right of possession in the mortgagee,""* one claiming under a mortgage subsequent to a lease, that is, under a mortgage of the reversion, may at any time notify the tenant under the lease to pay rent to him instead of to the mortgagor, aaid after such notice the tenant is liable to him for all rent, accrued since the date of the mortgage, which is as yet unpaid, and also for all rent yet to accrue.®"" Until «03 Pomeroy, Eq. Jur. § 1210. ""s Moss v. Gallimore, 1 Doup:. ooi See 1 Jones. Mortgages, c. 1, 279; King v. Housatonic R. Co., 45 and ante, § 14C p. Conn. 226; Scheldt v. Belz, 4 IH. 1116 RENT. g 180 such notice from the mortgagee, however, the tenant may. by the express terms of the statute of Anne as to attornment,*"** safely pay rent, as it becomes due, to the mortgagor, that statute providing that the tena.nt shall not be damaged by payment of rent to the grantor of the reversion before notice of the grant is given him by the grantee, and that the tenant may so pay rent to the mortgagor, until notified by the mortgagee to do other- wise, has also been recognized without reference to any statute.*"' If, however, the tenant pays rent before it is due, and, while it is yet not due, receives notice from the mortgagee to pay it to the latter, he is properly liable therefor in spite of his previous payment, since he has no right to make payments in advance to the prejudice of the mortgagec^^^ Usually the mortgagee asserts no claim to the rent, since he is himself accountable for all rent received by him, and there is no advantage to be obtained from the making of such claim, but rather a trouble and responsi- bility. In states where the statute protects the tenant in paying to the transferor of the reversion, not, as does the statute of Anne, until the transferee gives notice of the transfer, but until the tenant has notice thereof,''''* the question might be suggested whether, after learning, otherwise than by notice from the mort- gagee, of the transfer of the legal title by way of mortgage, the tenant would be protected in paying the rent to the mortgagor. That he would not be protected in such ease has, however, never been suggested, and, in view of the recognized usage of paying the rent to the mortgagor unless and until payment is demanded by the mortgagee, a.nd also of the general tendency of the courts App. (4 Bradw.) 431; Mirick v. v. "Wright, 3 Mass. 138, 3 Am. Dec. Hoppln, 118 Mass. 582; Burden v. 98. Thayer, 44 Mass. (3 Mete.) 76, 37 coo See ante, § 146 f, at note 32. Am. Dec. 117; Kimball v. Lockwood. sot Comer v. Sheehan, 74 Ala. 452, fi R. I. 138; Comer v. Sheehan, 75 49 Am. Rep. 819; Burden v. Thayer, Ala. 452, 49 Am. Rep. 819; Kimball 44 Mass. (3 Mete.) 76, 37 Am. Dec. V. Pike, 18 N. H. 419; Castleman v. 117. Belt, 41 Ky. (2 B. Mon.) 157. sos Cook v. Guerra, L. R. 7 C. P. Where the lessor made a mort- 132; Harris v. Foster, 97 Cal. 292, 32 gage In fee to the lessee, it was held Pac. 246, S3 Am. St. Rep. 187; Hen- that the latter could elect whether shaw v. Wells, 28 Tenn. (9 Humph.) to pay rent as lessee or to account 568. Compare ante, § 177 c. for the profits as mortgagee. Newall «o9 See ante, | 146 f, at note 40 a. ^ 180 PERSONS ENTITLED. 1117 of law as well as of equity to regard a mortgage as creating a lien merely, such a doctrine woiild presumably be regarded with disfavor. In jurisdictions where the mortgagee is not vested with the legal title and the right of possession, but has a lien merely, the tenant is not, apart from express stipulation, affected by a mort- gage made by the reversioner subsequently to the lease,^i" and the mortgagee is not substituted in any way for the mortgagor as landlord.®^^ If, however, the mortgagor expressly gives the mortgagee a right to the rents, he is, it has been held, entitled to assert the claim thereto as against the tenant,®^^ on the theory, presumably, that this constitutes an assignment of the rent still to accrue, apart from the reversion. The effect of a mortgage previous, as distinguished from one subsequent, to the lease, upon the right to rent, is elsewhere con- sidered.^i* e. Purchasers at judicial or execution sale. The right to sub- sequent rent passes with the reversion, not only when the latter is transferred by voluntary act, but also when it is transferred by operation of law, as upon a partition or foreclosure sale,^i^ or a sale under execution,^^^ or a sale in settlemeait of a decedent's 610 See Hogsett v. Ellis, 17 Mich. Donahue, 85 Iowa, 748, 52 N. W. 351; Myers v. White, 1 Rawle (Pa.) 537. 363. And so the lessor and lessee «i3 See ante, § 73 a (5). can by agreement reduce the rent oi* Murray v. Mounts, 19 Ind. 364; as against the mortgagee. Frank v. Watkins v. Duvall, 69 Miss. 364, 13 New York, L. E. & W. R. Co., 122 So. 727; Stevenson v. Hancock, 72 N. Y. 197, 25 N. E. 332, 10 L. R. A. Mo. 612; Tubb v. Fort, 58 Ala. 277; 381. Stockton's Appeal, 64 Pa. 58. A lessor who has made a convey- sis Butt v. Ellis, 86 U. S. (19 ance of his interest by a deed in Wall.) 544; Casey v. Gregory, 52 Ky. terms absolute cannot, it has been (13 B. Mon.) 507, 56 Am. Dec. 581; decided, show that the deed was in- Lancashire v. Mason, 75 N. C. 455; tended merely as a mortgage, in Hayden v. Patterson, 51 Pa. 261; order to support his right of action Moore v. Turpin, 1 Speer Law (S. for rent. Abbott v. Hanson, 24 N. C.) 32, 40 Am. Dec. 589; Pickett v. J. Law (4 Zab.) 493. Breckenridge, 39 Mass. (22 Pick.) 611 Thorn v. Sutherland, 123 N. Y. 297, 33 Am. Dec. 745; Bank of Penn- 236, 25 N. E. 362; Goodwin v. Hud- sylvania v. Wise, 3 Watts (Pa.) son, 60 Ind. 117 (semble). 394; Townsend v. Isenberger, 45 ei2 Thomson v. Erskine, 36 Misc. Iowa, 670; Van Wlcklen v. Paulson, 202. 73 N. Y, Supp. 166; Trulock v. 14 Barb. (N. Y.) 654. TILS RENT. § 180 estate."!" j^ ^j^g ^^^gg qJ such a sale by order of court, or under judicial process, the purchaser is, in most jurisdictions, it seems, entitled to rent accruing after the making of the sale,"!^ but in some jurisdictions only that accruing after the date of the con- firmation of the sale belongs to him,"!^ and sometimes he acquires no right to rent till the execution of a deed to hira."!^ If the time for the taking of possession by the purchaser is named in tlip decree, the purchaser is entitled to rent accruing after that time and not before."-'' It has been decided that he is not en- titled to rent pending the time for redemption.''2i These ques- tions, as to the time at which the purchaser at such a sale be- comes entitled to rent, would ordinarily be determined with refer- ence to the statutory provisions upon the subject of such sales, in Force in the particular jurisdiction. The position in this respect of a purchaser at a sale under a lien subsequent to the lease is, as has been before stated,"^^ iq jjg •-arefuUy distinguished from that of one who purchases under a lien prior to the lease. The latter is not a transferee of the re- version in any sense, but is to be regarded as if the transfer to him had occurred at the time at which the lien was created, the effect of the enforcement of a lien being to extinguish all rights s\ibsequently created. Not being interested in the reversion, he 616 "Wilson V. Delaplaine, 3 Har. Townsend v. Isenberger, 45 Iowa, (Del.) 499; Burbank v. Dyer, 54 670; Varnum v. Wlnslow, 106 Iowa, Ind. 392; Page v. Culver, 55 Mo. 287, 76 N. W. 708, 68 Am. St. Rep. App. 606; Marys v. Anderson, 24 Pa. 306; Evertsen v. Sawyer, 2 Wend. 272; Burns v. Cooper, 31 Pa. 426. (N. Y.) 507; Cheney v. Woodruff, 45 '■•IT See Huntington v. Walker, 9 N. Y. 98; Garrett v. Dewart, 13 Pa. D. C. (2 MacArtliur) 479; Wagner 342, 82 Am. Dec. 570. An act pro- V. Cohen, 6 Gill (Md.) 97, 26 Am. viding that the purchaser should Dec. 559; Jashenosky v. Volrath, 59 have a right to the possession upon Ohio St. 540, 69 Am. St. Rep. 786; confirmation of the sale and execu- Taylor v. Cooper, 10 Leigh (Va.) tion of the deed was construed .to 317, 34 Am. Dec. 737; Snyder v. have this effect. Strange v. Austin. Riley, 1 Speers Law (S. C.) 272, 40 134 Pa. 96, 19 Atl. 492. Am. Dec. 602. See 3 Freeman, Exe- 62oLatta v. Pierce, 79 Tenn. (11 cutioHs, § 349. Lea) 267, 47 Am. Rep. 284; Cheney 618 Ball V. Covington First Nat. v. Woodruff, 45 N. Y. 98. Bank, 80 Ky. 501; Latta v. Pierce, eai Bissell v. Payn, 20 Johns. (N. 79 Tenn. (11 Lea) 267, 47 Am. Rep. Y.) 3; Cheney v. Woodruff, 45 N. 284. Y. 98. i^'f Spoor V. Phillips. 27 Ala. 193; '22 See ante, S 147. §18(1 PERSONS ENTITLED. ]1I9 has no right to thi- rent, though, ii' the tenant attorns to or ac- cepts a lease from him, a new tenancy is created.*'^" f. Trustees in bankruptcy.' Another case of transfer of the reversion by operation of law, -with a conseciuent right in the transferee to the rent thereafter falling due, oecui's in the case of the bankruptcy of the reversioner, the reversion, with the right to rent, then passing to the trustee in bankruptcy .o^* g. On death of person entitled. Upon the death intestate of one having a reversion in fee simple, the rent incident to the re- version ordinarily passes therewith to the heir, while if the re- version is of a chattel nature, the rent passes with the reversion to the executor or administrator.^25 jf ^jjg reversion is devised (ir bequeathed, the rent passes with it to the devisee or legatee,*^'' provided, that is, it is not needed for the payment of the tes- tator's creditors. Tf the rent has become severed from the re- version,''^''. 62s {i jg regarded as a rent charge for the period of the lease, and if the lease is for years, the rent passes to the per- sonal representative.^-" A provision in a lease that, after the lessor's death, the rent should be paid to a particular person, has been regarded as in- valid as an attempted testamentary provision.flso The statutory provisions, found in n number of states,^^' that '■-:■ Sec ante, § 73 a. '•-'' Broadwell v. Banks, 134 Fed. 02* See ante, § 147, at note 63. 470; Cobel' v. Cobel, 8 Pa. 342; 125 1 Woerner, Administration, § Tubbs v. Morgan, 12 U. C. Q. B. 151. 300; Sacheverell v. Froggatt, 2 In Flske v. Brayman, 21 R. I. 195, Wms. Saund. 367 a. and notes; 42 Atl. 878, it was held that, where Rubottom V. Morrow, 24 Ind. 202, 87 the rent reserved was ice to be furn- Am. Dec. 324: Dixon v. NiccoUs, 39 ished to "the lessor and his family," 111. 372. 89 Am. Dec. 312; Stinson the devisee of the lessor was en- V. Stinson, 38 Me. 593; Kimball v. titled to the ice though she had mar- Sumner, 62 Me. 305; Towle v. ried and so had ceased to be a mem- Swasey, 106 Mass. 100; Van Rensse- ber of his immediate household, laer's Ex'r v. Platner, 2 Johns. Cas. 62t, 028 See ante, § 180 c. (N. Y.) 17; Fay v. Halloran, 35 120 Knolle's Case, Dyer, 5 b; Wil- Barb. (N. Y.l 295; In re Wood- liams. Executors (9th Ed.) 727. burn's Estate, 138 Pa. 606, 21 Atl. "so Murray v. Cazier, 23 Ind. App. 16, 21 Am. St. Rep. 932; Overturf v. 600, 53 N. E. 476, 55 N. E. 880. Dugan, 29 Ohio St. 230; Huft v. Lat- 031 Woerner. Administration, § imer, 33 S. C. 255, 11 S. E. 758; 337. Smith V. Thomas, 82 Tenn. (14 The Mississippi statute (Code Lga) 324. 1906, § 2880) expressly provides 1120 RENT. § 180 real property shall pass to the executor or administrator, has the effect of making such personal repesentative the proper person to assert a claim for the rent accruing immediately after the death of the person entitled, even though the latter had a free- hold estate in the land. The question wh other, upon the death of one of two or more persons entitled to the rent, the survivor is the proper person to sue for the subsequently accruing rent, or whether the heir or devisee of the person so dying should join in such suit, is re- ferred to in another conneetion.^^^ Each installment of rent, as it becomes due, is personal proper- ty, and consequently, if the person entitled dies after the install- ment becomes due, but before it is paid, the personal representa- tive is entitled, as he is to any personal claim.^s* h. Persons not in privity with lessor. In order that one may be entitled to an installment of rent, he must be either the original lessor, a transferee of the reversion, or one to whom the rent, or the particular installment, has been transferred.^^* Occasion for the applicaticn of this principle arises most frequently in the case of a claim for rent asserted by one who has a title to the land paramount to that of the person who made the lease. That the rightful owner of land, who has been ousted therefrom by a wrongdoer, has no right to recover rent from one to whom such wrongdoer may have subsequently made a lease of the land, he being an utter stranger to the lease, is a matter as to Avhich, on principle, there can be no question. ^^^ Whether such lessee (or that the rent to accrue for the land v. First Nat. Bank of Covington, 80 during the year of the lessor's death Ky. 501 ; Bealey v. Blake's Adm'r, shall be payable to the personal rep- 70 Mo. App. 229; Gibson v. Parley, resentatlve. 16 Mass. 280; "Van Rensselaer's In Maryland the statute (Code Ex'rs v. Platner's Bx'rs, 2 Johns. 1904, art. 53, § 19) provides that Cas. (N. Y.) 17; Haslage v. Krugh, "the rents of real estate of minors 25 Pa. 97; Miller v. Crawford, 26 or of leasehold estates that may not Abb. N. C. (N. Y.) 376. be due at the death of such minor 034 That rent can be reserved only shall for the year in which such in favor of the lessor, see ante, § minor may die be paid to the guard- 170, at notes 101-103. ian." S35 This Is assumed in the decl- 632 See post, § 293 d. sions that the owner of the para- 033 1 Woerner, Administration, § mount title cannot recover against 300; Foltz v. Prouse, 17 111. 487; the lessee in an action for use and Mills V. Merryman, 49 Me. 65; Ball occupation. Post, § 304, at note 20. § 180 PERSONS ENTITLED. 1121 his assignee) would be liable to an action for mesne profits, as is, unquestionably, the trespasser under whom he claims, is a matter on which there has been great difference of opinion-^^e In some cases, the fact that the rightful owner of the land is an entire stranger to the lease and to the reversion, not being so plainly apparent as if the lease were made by one who had actu- ally ousted such owner, the courts have lost sight of the true re- lation, or rather lack of relation, between the parties. This has occurred in the case of a sale under a mortgage or other lien prior to the lease, in which case the tenant has, as regards the purchaser at the sale, no right whatever to possession, and the purchaser is, on the other hand, not the landlord of the tenant, and not entitled as such to claim rent.^^'^ An application of the above principle, that a claim for rent But in Gardner v. Gardner, 25 Iowa, C. 286, the tenant was allowed to 102, the court seems to indicate a assert, by way of counterclaim in vague impression that under cer- an action for rent, that he had been tain circumstances the tenant oU sued by the rightful owner for dam- the "apparent owner" might be ages on account of his wrongful oc- Uable for rent to the real owner; cupancy. That the tenant of the and in Thomas v. Judy (Tex. Civ. disseisor is not liable to the right- App.) 44 S. W. 890, it is decided that ful owner, see dictum in Liford's he is so liable, apparently on the Case, 11 Coke, 46 b, and the foUow- erroneous theory that an adjudica- ing cases, in which approval of that tion for the plaintiff in an action dictum is expressed. Barnett v. for the possession of land actually Guildford, 11 Bxch. 19, 30; Case v. transfers an interest in the land De Goes, 3 Caines (N. Y.) 261; Van from the defendant to the plaintiff, Brunt v. Schenck, 11 Johns. (N. Y.) 636 That the tenant is liable to the 377, 385; Dewey v. Osborn, 4 Cow. rightful owner for mesne profits, see (N. Y.) 329, 338. And see partlcu- Holcomb V. Rawlyns, Cro. Eliz. 540; larly the discussion of various cases Trubee v. Miller, 48 Conn. 347, 40 bearing on the question of the right Am. Rep. 177; Bradley v. McDanlel, to recover mesne profits against one 48 N. C. (3 Jones Law) 28; Babcock claiming under the original tres- v; Kennedy, 1 Vt. 457, 18 Am. Dec. passer in Bigelow, Leading Cases 695; Lyman v. Mower, 6 Vt. 345; on the Law of Torts, at page 361 et Lamson v. Sutherland, 13 Vt. 309. seq. The question was the subject In Newsome v. Graham, 10 Bam. of decided difference of opinion long & C. 234, a recovery was allowed in before the time of Lord Coke. The favor of the tenant against the land- old authorities are referred to in lord as for money had and received Stearns, Real Actions, 416, note, and on the ground that the tenant had In the dissenting opinion of Putnam, been compelled by suit to pay mesne J., in Emerson v. Thompson, 19 profits to the rightful owner. And Mass. (2 Pick.) 473. in McKesson v. Mendenhall, 64 N. esT See ante, § 147. L. and Ten. 71. 1122 RENT. ,§ 181 cannot be asserted by one having paramount title, occurs, in jurisdictions in which a mortgage passes the legal title, in case a lease is made of land which is subject to a prior mortgage.^^* In such case the mortgagee's title is paramount to that of the lessee, and he may evict the latter at any time, but he has no right to assert a claim for rent against him, until there is an at- tornment or new lease creating the relation of landlord and ten- ant between them. The principle that a stranger to the reversion cannot recover rent is applicable in the ease of a lease by a trustee, the rent re- served under which cannot be recovered by the cestui que trust,^^^ and also in the case of a lease by a life tenant, the rent reserved under which cannot be recovered by the reversioner or remainder- man."*'' And so in the case of a sublease by the tenant under a lease, the rent reserved under the sublease cannot be recovered by the head landlord."*^ So it was decided that where a lease was made by the father of the rightful owners, without any legal authority to act for them, such owners could not, upon their father's death, maintain an action for rent, they not being "privy to the lease, either in contract or estate."®*'^ There are a few cases in this country apparently to the efl'ect that rent may be reserved to a person other than the lessor.^*^ At common law, however, rent could not be thus reserved to a third person,®** and sums so attempted to be reserved should, it seems, be regarded as sums in gross payable to such person rather than as rent. § 181. Persons liable for the rent. a. Lessees. The lessee's liability for the rent named may be based upon either privity of estate, that is, the relation of land- sssSee ante, | 73. 90; Jenkins v. Church, Cowp. 482, 039 Murphy v. Hopcroft, 142 Cal. Hoagland v. Crum, 113 111. 365, 55 43, 75 Pac. 567; Chapln v. Foss, 75 Am. Rep. 424; McGillick v. McAl- rU. 280; Harms v. McCormlck, 132 lisier, 10 111. App. (10 Bradw.) iO. 111. 104, 22 N. E. 511; Patterson v. 64i gee ante, § 162, at notes 515- Emerick, 21 Ind. App. 614, 52 N. E. 517. 1012. ii42Mackey v. Robinson, 12 Pa. 640 This is a necessary conse- 170 quence of the view that the lease is sa See ante, notes 108-109. void as regards the remaindermaB. 644 See ante, at notes 101-103. See Ludford v. Barber. 1 Term R. § 181 PERSONS LIABLE. 1123 lord and tenant, or upon privity of contract, that is, the lessee's covenant to pay such rent."*^ At common law the liability based on privity of estate is enforced by action of debt®*® or by dis- tress,®*^ while that based on privity of contract is enforced by ac- tion of covenant,®** or, if the lessee's promise to pay rent is not under seal, by action of asumpsit.®** In jurisdictions in which the distinctions between the common-law forms of action no longer exist, it will ordinarily not appear whether the liability is sought to be based on privity of estate or on privity of eon- tract, and the question has, to a very great extent, lost its prac- tical importance. The lessee is liable for the rent by reason of his privity of es- tate with the landlord, imtil this privity is terminated by an as- signment by him of the leasehold. But an assignment by the lessee does not relieve him from his liability based on privity of estate, until the lessor indicates his willingness to regard the as- signee as his tenant, by receiving rent from him or otherwise, since the lessee camiot substitute another as tenant in his place without the landlord's consent.®^® And so, presumably, the mere assignment of part of the leasehold, not assented to by the land- lord, will not relieve the lessee from any part of such liability. Whether, if the lessor assents to such partial assignment or indi- cates his acceptance of the assignee as tenant of part, the lessee will be proportionately relieved from liability by reason of privity of estate, as he is entirely relieved therefrom by his assignment of the leasehold in the whole premises, when assented to by the lessor, has apparently never been explicitly decided.®°i Even though the lessor does assent to the assignment of part, he still has, it seems, at common law, a right to distrain upon such part for the whole rent, this being regarded as issuing out of every part of the premises for the purposes of distress.852 i-t.-. Sec ante, § 157 a (1), note 294; Marlowe, 8 East, 314, note; Mont- 5 171. gomery v. Spence, 23 U. C. Q. B. 39; »*« See post, § 248 a. Consumers' Ice Co. v. Bixler, 84 Md. •47 See post, chapter XXXII. 437, 35 Atl. 1086; Harmony Lodge v «« See post, § 290 b. White, 30 Ohio St. 569, 27 Am. Rep. 649 See post, § 290 c. 492. 650 Walker's Case, 3 Colse, 22 a; osi The question is discussed in Marsh v. Brace, Cro. Jac. 334; Mills Rushden's Case, 1 Dyer, 4 b. V. Auriol, 1,H. Bl. 433; Auriol v. 052 Curtis v. Spitty, 1 Bing. N. C. Mills, 4 Term R. 94; Wadham v. 756. In .Tackson v. WyehofE, 5 1124 RENT. §181 The lessee's liability upon his covenant to pay rent, that is, by privity of contract as distinguished from privity of estate, is not affected by his assignment of the leasehold, even though as- sented to by the landlord,®^^ though, as between him and his as- signee, the latter becomes primarily liable.^^* The lessee is not relieved from liability on his covenant for rent by the fact that the assignee in express terms assumes liability upon the covenant,^^^ nor, it has been decided, by the fact that the assignee agrees vrith the landlord to pay a rent different from Wend. (N. Y.) 53, it is held that a partition of the premises between tenants is nugatory-, unless assented to hy the landlord, as against the latter's right to distrain for the whole rent on any part of the prem- ises. 653 Worthington v. Cooke, 56 Md. 51; Grommes v. St. Paul Trust Co., 147 111. 634, 35 N. B. 820', 37 Am. St. Rep. 248; Missouri, K. & T. Trust Co. V. Richardson, 57 Neb. 617, 78 N. W. 273; Creveling v. De Hart, 54 N. J. Law, 338, 23 Atl. 611; Bonetti V. Treat, 91 Cal. 223, 27 Pac. 612, 14 L. R. A. 151; Taylor v. DeBus, 31 Ohio St. 469; Wilson v. Gerhardt, 9 Colo. 585, 13 Pac. 705; Rees v. Lowy, 57 Minn. 381, 59 N. W. 310; Oswald V. Fratenburgh, 36 Minn, 270, 31 N. W. 173; Bailey v. Wells, 8 Wis. 141, 76 Am. Dec. 233; Latta v. Weiss, 131 Mo. 230, 32 S. W. 1005; Almy v Greene, 13 R. I. 350, 43 Am. Rep. 32; Ghegan v. Young, 23 Pa. 18. See ante, § 157 a (2). So if two partners take a lease, one cannot relieve himself from lia- bility for rent hy withdrawing from the firm. Warner v. Hale, 65 111. 395; Weil v. Defenbaugh, 65 111. App. 489. The lessee was even held liable un- der his covenant, for an increase in rent caused by the act of his as- signee in availing himself of a pro- vision authorizing the lessee, "his legal representatives and assigns" to retain possession, after notice to terminate from the lessor, upon pay- ing an increased rent named. Wall V. Hinds, 70 Mass. (4 Gray) 256, 64 Am. Dec. 64. But in Ohio .it has been decided that where a lease for ninety-nine years, renewable for- ever, provided that the rent should be fixed every fifteen years by a re- valuation of the premises, the lessee was not intended to be liable for rent so fixed by arbitration, con- ducted by his assignees, for the rea- son that an increased burden might thus be imposed on him without his assent. Worthington v. Hewes, 19 Ohio St. 66, ante, note 229. This case is distinguished in Taylor v. De Bus, 31 Ohio St. 468, the court refraining from expressing either approval or disapproval thereof. As to "implied covenants" to pay rent, and the lessee's continuing lia- bility thereon, see ante, § 171 b. 654 See ante, § 158 b, at notes 481- 488. 655 Wineman v. Phillips, 93 Mich. 223, 53 N. W. 168; Charless v. Froe- bel, 47 Mo. App. 45;, Ranger v. Bacon, 3 Misc. 95, 22 N. Y. Supp. 531; Adams v. Shirk (C. C. A.) 104 Fed. 54. § 181 PERSONS LIABLE. 1125 that reserved by the lease.^^s Nor is it material that the landlord did not demand rent from the assignee before proceeding against the lessee,®^' nor that he failed to enforce a lien for rent on the assignee's goods.^^^ Occasional decisions to the effect that, un- der the circumstances, the lessor 's acquiescence in the assignment, and failure to assert any claim for rent as against the lessee, had the effect of relieving him from liability,"^^ can be supported only on the theory that such action on the part of the lessor consti- tuted in each case a new lease to the assignee, thus causing a surrender by operation of law.^*'*' Tt has, in one case, been de- fcided that the lessee is relieved from his liability on his covenant to pay rent by the fact that the assignee, with the landlord's consent, makes a use of the premises which is prohibited by the lease.*®^ This decision, also, may perhaps be supported on the theory that such change of use, with the lessor's consent, involves a surrender by operation of lai" ^^^ 638Wlnemaii v. Phillips, 93 Mich. eeo See post, § 190 b (1) (d). 223, 53 N. W. 168. sei Fifty Associates v. Grace, 125 657 Pittsburgh Consol. Coal Co. v. Mass. 161, 28 Am. Rep. 21-8. Greenlee, 164 Pa. 549, 30 Atl. 589. 662 The court says that the. lessee 658 Barhydt v. Burgess, 46 Iowa, "was released from liability on the 476. covenant to pay rent, certainly while 650 Colton V. darham, 72 Iowa, such occupation continued, for he 324, 33 N. W. 76; Brayton v. Boomer, had covenanted to pay only accord- 131 Iowa, 28, 107 N. W. 1099. And Ing to the terms of the lease." But see cases cited post, I 190 b (1) (d), that apparently assumes the point notes 114C-114 f. at issue. What the lessee really In Patten v. Deshon, 67 Mass. (1 covenanted to do appears to have Gray) 325, it is said by Shaw, C, been to pay rent and to "use and J.,, that ."if the original lessor as- occupy the premises as and for a sents to the assignment and agrees dry goods and raillinery store," and to acceptthe assignee as his tenant, the assignee used it for another pur- and proof of receiving rent from the pose with the lessor's assent. If assignee will be deemed evidence of the lessee agreed to pay rent, as such assent, he has no longer any stated by the court, only so long as right of action against the original he or his assignee used the prem- lessee." This statement is evident- ises in the way named, assuredly a ly not in accord with the later case singular kind of agreement from of Wall V. Hinds, 70 Mass. (4 Gray) the lessor's point of view, his lia- 256, 64 Am. Dec. 64, ante, note 653. bility for rent would cease upon a It is adopted as expressing the cessation of such use irrespective of Texas rule in Ascarete v. PfafE, 34 whether the lessor assented thereto. Tex. Civ. App. 375, 78 S. W. 974. But the court appears to regard the 1126 RENT. § 181 One who is not named in the instrument of lease cannot, it would seem, be regarded as one of the lessees, and liable for rent as such, merely because he joins in the execution. That is, a conveyance in terms to A cannot be regarded as a conveyance to A and B merely because B, as well as A, places his name at the foot thereof. It would seem, moreover, that he caninot be regard- ed as joining in the covenant to pay the rent, so as to be liable therefor, the language in terms purporting to bind the lessee only. There are occasional decisions to this effect.^^* b. Assignees of the leasehold. The liability of an assignee of the leasehold for rent reserved by the lease is determined by the application of the general principles and rules which control his liability in other respects. These have been considered in a previ- ous chapter,®®* to which reference may be ma^de, in connection with the following statements as to the liability of an assignee for rent. The liability arising from privity of estate, for rent reserved by the lease, is, by an assignment of the leasehold, transferred to the assignee, and he remains subject thereto until he makes a re- assignment to another, who, as being the tenant for the time be- ing, in turn becomes subject thereto.®®^ In some jurisdictions, indeed, it appears that one may be held liable as assignee although there has been a transfer to him of the equitable title merely to the leasehold, or in case he has been given the possession merely.®®® It has been suggested that, in case of the assignment of the lessor's assent to the cessation of (Ala.) 45 So. 129. In Evans v. Con- sucli use as a material consideration klin, 71 Hun, 536, 24 N. Y. Supp. in relieving tlie lessor from rent, 1081, it is said that one so signing since it says that "the effect of the is not a lessee liable for relit, assent by the plaintiff to the assign- 664 See ante, § 158 a. ment to S., for a different use and ess Walker's Case, 3 Coke, 22 a; occupation, was to create a new Thursby v. Plant, 1 Wms, Saund. tenancy inconsistent with the terms 237, note (1); Howland v. Coffin, 26 of the lease to the defendant^ and Mass. (9 Pick.) 52, 29 Mass. (12 his liability for rent, while such Pick.) 125; McKeon v. Whitney, 3 tenancy continued, ceased;" refer- Denio (N. Y.) 452; McBee v. Samp- ring to Amory v. Kannoffsky, 117 son, 66 Fed. 416; Hartman v. Mass. 351, 19 Am. Rep. 416, which Thompson, 104 Md. 389, 65 Atl. 117, was a case of implied surrender. 118 Am. St. Rep. 422; Daniels v. See, as to surrender, post, § 190. Richardson, 39 Mass. (22 Pick.) 565. ««3 Hubbard v. Knous, 69 Mass. eee See ante, § 158 a (2) d. (S Gray) 567; Brown v. O'Byrne § 181 PERSONS LIABLE. 1127 leasehold in part of the land, privity of estate might arise as to the whole land, so as to make the assignee liable for the whole rent.^^ This seems contrary to the principles of apportionment ordinarily adopted,^"'* and there are a number of decisions to the effect that the assignee of part of the land is liable only for a proportioned part of the rent.®*^ An assignee of the leasehold is usually liable for rent, not only by reason directly of the privity of estate between him and the landlord, as above stated, but also by reason of the lessee's cove- nant to pay rent,^''o the burden of which is considered to pass to 667 In Curtis v Spitty, 1 Bing. N. Stevenson Vj^ Lambard, 2 EJast, 575; C. 756, it is said by Tindal, C. J., to Salisbury v. Shirley, 66 Cal. 223, "5 be "a very nice and dififlcult ques- Pac. 104; Prettyman v. Walston, 34 tion, not settled by any decision in 111. 175, 85 Am. Dec. 304; Webster v. the books, so far as we can ascer- Nichols, 104 111. 160; Stewart v. tain, namely, whether there exists Long Island R. Co., 102 N. Y. 601, a privity of estate in respect of the 8 N. E. 200, 55 Am. Rep. 844; Mead whole land by an assignment of v. Madden, 85 App. Div. 10, 82 N. part only." In Damainville v. Y. Supp. 900; Hunt v. Thompson, 84 Mann, 32 N. Y. 197, 88 Am. Dec. 324, Mass. (2 Allen) 341; Hannen v. the assignee of an undivided inter- Ewalt, 18 Pa. 9; Fennell v. Guffey, est in the leasehold was held to be 139 Pa. 341, 20 Atl. 1048; Hogg v. liable for the whole rent, not on Reynolds, 61 Neb. 758, 86 N. W. 479, the theory that there was privity '87 Am. St. Rep. 522; Edwards v. of estate in respect of the whole Spalding, 20 Mont. 54, 49 Pac. 443; land, but on the theory that the tak- Darmstaetter v. Hoffman, 120 Mich, ing of possession of the whole land 48, 78 N. W. 1014; Le Gierse v. by the assignee rendered him so Green, 61 Tex. 128. liable on thie covenant for rent. The assignee has been held bound which ran with the land. See ante, by a covenant to pay rent, the § 158 a (2) (d) (m), note 442. amount of which was to be deter- 668 See ante, § 175. mined by an assessment by the les- 660 St. Louis Public Schools v. sor. Tate v.^Neary, 52 App. Div. 78, Boatmen's Ins. & Trust Co., 5 Mo. 65 N. Y. Supp. 40. The assignee App. 91; Van Rensselaer's Ex'rs v. was held to be bound by a covenant Gallup, 5 Denio (N. Y.) 454; Van to pay a part of any excess over the Rensselaer v. Jones, 2 Barb. (N. Y.) rent which the premises might yield 643; Hogg V. Reynolds, 61 Neb. 758, from an underlease, although this 86 N. W. 479, 87 Am. St. Rep. 522; excess took the form of a lump sum. Van Rensselaer v. Bradley, 3 Denio Constantlne v. Wake, 31 N. Y. Super. (N. Y.) 135, 45 Am. Dec. 451; Bab- Ct. (1 Sweeny) 289. cock V. Scoville, 56 111. 461; Daniels The assignee's liability on the V. Richardson, 39 Mass. (22 Pick.) covenant for rent exists although 565. See Gamon v. Vernon, 2 Lev. the lessee gave his notes for the 231. rent, since' the taking of the notes 670 Barker v. Damer, Carth. 182 ; 1128 RENT. § 181 him along with the leasehold.^^i That is, in jurisdictions where the common-law forms of action are recognized, he is liable in covenant as well as in debt.^'^^ Tjig conditions under which lia- bility is imposed upon a.n assignee of the leasehold by reason of a covenant on the part of the lessee are considered in a previous chapter.^'' ^ The assignee is not liable for rent which fell due before the assignment to him, unless he assumed such liability by express stipulation.^^* But he is liable for any installment which falls due during his tenancy, and he cannot assert, as against his as- signor, a claim to have the liability apportioned as of the date of the assignment,®^ ^ rent not being apportionable as to time.*''^ So far as concerns the liability of the assignee of the leasehold, it is ordinarily immaterial whether it is based on privity of es- tate or on privity of contract, since his liability by reason of privity of contract is based on the theory that such privity ex- ists by reason of the privity of estate. In other words, the as- signee of the leasehold is liable upon the lessee's covenant for does not extinguish the liability for transfer of a life interest in land rent. MoCormick v. Young, 32 Ky. has heen held to bind a subseq.uent (2 Dana) 294. transferee of such interest. Mc- 671 See ante, § 158 a (2). Murphy v. Minot, 4 N. H. 251. In 672 See post, § 290 b. England, It would seem, in view of The burden of a covenant to pay expressions adverse to the running rent, made on a conveyance in fee, of the burden of covenants on con- has also been decided in this coun- veyances in fee (see 1 Tiffany, Real try to run with the land, so as to Prop. § 344), that a grantee of land render a grantee of the land person- would not be liable on such a cov- ally liable thereon. Carley v. Lewis, enant reserved on a conveyance in 24 Ind. 23; Herbaugh v. Zentmyer, fee. To this effect, see the remarks 2 Rawle (Pa.) 159; Hannen v. of Holt, C. J., In Brewster v. Kld- Ewalt, 18 Pa. 9; Van Rensselaer v. gill, 12 Mod. 166; Copinger & Munro, Hays, 19 N. Y. 68, 75 Am. Dec. 278; Law of Rents, 473-476. But that the "Van Rensselaer v. Read, 26 N. Y. burden does run, see Sugden, Ven- 558; Van Rensselaer v. Dennison, dors & Purchasers (13th Ed.) 483; 35 N. Y. 393. By statute in Penn- Harrison, Chief Rents, 102. sylvania, at the present day, the pur- 673 See ante, § 158 a (2). chaser of land is personally liable 674 See ante, § 158 a (2) (c), at only when he assumes liability in notes 347-349. writing. See Easby v. Easby, 180 675 Trask v. Graham, 47 Minn. 571, Pa. 429, 36 Atl. 923, 57 Am. St Rep. 50 N. W. 917; Graves v. Porter, 11 - 654. Likewise, the burden of a cov- Barb. (N. Y.) 592. enant to pay rent reserved on the 67e See ante, § 176 a. § 181 PERSONS LIABLE. 1129 rent because he is in privity of estate with the landlord, and only so long as such privity endures. There is, so to speak, a privity of contract by reason of the privity of estate. . One to whom the leasehold in part only of the premises is as- signed is liable for a proportionate part of the rent, both upon the theory of pri^'ity of estate,^^^ and upon that of privity of contract.®''* Likewise, an assignee, not of the leasehold interest in the part of the leased premises, but of an undivided interest in the leasehold in the whole premises, is liable for a proportionate part of the rent.^'^^ In jurisdictions in which a mortgage has the effect of trans- ferring the legal title, a mortgagee of the leasehold would or- dinarily be liable for the rent to the same extent as would an ab- solute assignee.®*** In some jurisdictions, in which the equitable conception of a mortgage prevails, the assignee has been regarded as liable if he takes possession, and otherwise not.®*i 677 Gamon v. Vernon, 2 Lev. 231. Boatman's Ins. & Trust Co., 5 Mo. Compare ante, note 667. App. 91; Balicock v. Scoville, 56 III. 678 Babcock v. Scoville, 56 111. 461; 461. See Merceron v. Dowson, 5 Cox V. Fen wick, 7 Ky. (4 Bibb) Barn. & C. 479; Nerval v. Pascoe, 34 538; Harris v. Frank, 52 Miss. 155; Law J. Ch. 82. Damainville v. Astor v. Miller, 2 Paige (N. Y.) 68; Mann, 32 N. Y. 197, 88 Am. Dec. 324, Van Rensselaer v. Gifford, 24 Barb, holding such assignee of a part in- (N. Y.) 349. See ante, § 158 a (2) terest liable for the whole rent if he (m), at notes 436, 439, 442. takes possession of the whole, is In Woodruff v. Baldwin, 72 Conn, well criticised in the case first 430, 44 Atl. 748, it was held that an above cited. assignee of the leasehold in part of eso Williams v. Bosanquet, 1 Brod. the leased premises was bound, as & B. 238; McMurphy v. Minot, 4 N. against the lessee, to pay the whole H. 251; May hew v. Hardesty, 8 Md. of the rent reserved, and not an ap- 479; Farmers' Bank v. Mutual portioned part only, the deed of as- Assur. Soc, 4 Leigh (Va.) 69. See signment reciting that the land ante, § 158 a (2) (f). conveyed was part of the leased esi Astor v. Hoyt, 5 Wend. (N. Y.) "premises," and providing that the 603; Walton v. Cronly, 14 Wend, assignee "agrees to pay the rent of (n. Y.) 63; Tallman v. Bresler, 65 said premises that may annually be- Barb. 369, 56 N. Y. 635; Levy v. come due to (the original lessor) as Long Island Brewery, 26 Misc. 410, a part of the consideration for the 56 N. Y. Supp. 242; McKee v. Angel- deed," and it showing no basis on rodt, 16 Mo. 283; Prather v. Foote, 1 which the values of the parcels of Disn. (Ohio) 434. See ante, i 158 a land could be ascertained for the (2) (f), notes 367-369. But corn- purpose of apportionment. pare Johnson v. Sherman, 15 Cal. »7oSt. Louis Public Schoola v. 287, 76 Am. Dec. 481; Cargill v 1 130 RENT. I 181 One to whom the lessee, or an assignee of the lessee, makes an assignment for the benefit of creditors, becomes liable on the cove- nant for rent, at least if he accepts the leasehold as part of the assets assigned.*'^^ When the leasehold passes to another person by operation of law, such person becomes liable for the rent reserved, for the most part to the same extent as does an assignee by voluntary act, by reason of the covenant to pay rent, and also, it would seem, apart from such covenant, purely by reason of privity of estate. Thus, a purchaser at judicial or execution sale is liable for the rent.^®^ And so a trustee in bankruptcy is liable therefor, if he accepts the leasehold as part of the assets.^^^ In some jurisdictions, likewise, a receiver of the lessee or of the assignee of the leasehold becomes liable as being himself an as- signees*^ Though the lessor can proceed on the covenant against either the lessee or the assignee, or against both, he can have but one satisfaction of his judgment.^^" As between the lessee and his assignee, the latter is primarily bound to pay the rent, and, in case the lessee is compelled to pay it, he may recover the amount of his expenditures in this regard by action against the assignee.**'^ Thompson, 57 Minn. 534, 59 N. W. not an election to treat the assigijee 638, 25 L. R. A. 755. as the lessee, so as to release the les- «s2See ante, § 158 a (2) (k). see from liability on the covenant, osssee ante, § 158 a (2) (g). the court said that the hringlng of 0S4 See ante, § 158 a (2) Cj). such action might have had that 080 See ante, § 158 a (2) (1). effect in the absence of the elements 6S6 Brett v. Cumberland, Cro. Jac. of estoppel, that is, if the lessor had 521; Bachelour v. Gage, Cro. Car. brought the action of his own mo- 188; Sutliff v. Atwood, 15 Ohio St. tion instead of at the lessee's re- 186; Whetstone v. McCartney, 32 quest. There is no other case sug- Mo. App. 430. In LeGierse v. Green, gesting such a limitation upon the 61 Tex. 128, it is held that the fact lessor's right to sue the lessee and that the lessor unsuccessfully sues assignee in succession upon the the original lessee for the rent does covenant. not affect his right subsequently to That a lessor distrains on the recover it from the lessee's assignee, goods of a sublessee or assignee In Whitcomb v. Cummlngs, 68 N. which are on the premises does not H. 67, 38 Atl. 503, while it -^vas de- relieve the lessee from liability for cided that the fact that the lessor rent subsequently accruing. Man- sued the assignee of the leasehold ley v. Dupuy, 2 Whart. (Pa.) 162. for rent at the lessee's request, was cst See ante, § 158 b. § 181 PERSONS LIABLE. ] 131 Since the assignee 's liability for rent is by reason of the privity of estate, arising from his ownership of the leasehold, he can terminate this liability, as regards rent not yet due, by assigning the leasehold to another.^^s Likewise the assignee may effect an apportionment of the rent in his own favor by assigning the leasehold in part of the premises, he having the same right thus to diminish his liability as he has, by assigning the whole lease- hold, entirely to divest himself of liability, and in such case he remains liable for a proportionate part, while his assignee be- comes liable for the other part.*** A sublease of part or of the whole, whether by the original lessee or by an assignee, cannot affect the sublessor's liability for rent, since it does not in any way affect the privity of estate.P^** If the assignee expressly assumes liability for the rent to ac- crue, he will, even after reassigning, be subject to liability there- for in favor of his assignor, who may have been compelled to pay the rent, and, in some jurisdictions, it seems, directly to the land- lord. Whether there is such an assumption of liability is, in each case, a question of the construction of the language used in the assignment.891 c. Executors and administrators. The executor or adminis- trator of the tenant, as standing in his place, is, to the extent of the assets of the estate, liable for the rent which may have ac- crued before his decedent's death.fio^ jip jg go liable also for rent 688 Pitcher v. Tovey, 1 Salk. 81, 4 rent already due at the time of the Mod. 71 ; Paul .v. Nurse, 8 Bam. & C. reassignment, though bo due be- 486; Johnson v. Sherman, 15 Cal. cause payable in advance. McLean 287, 76 Am. Dec. 481; Trabue v. Mc- v. Caldwell, 107 Tenn. 138, 64 S. W. Adams, 71 Ky. (8 Bush) 74; Con- 16; Congregational Soc. of Sharon sumers' Ice Co. v. Bixler, 84 Md. v. Rix (Vt.) 17 Atl. 719. 437, 35 Atl. 1086; Bell v. American sso Congham v. King, Cro. Car. Protective League, 163 Mass. 558, 40 221 ; Muldoon v. Hite, 6 Ky. Law N. B. 857, 28 L. R. A. 452, 47 Am. Rep. 663. St. Rep. 481; Durand v. Curtis, 57 eoo Broom v. Horr, Cro. Eliz. 633. N. Y. 7. 15 Am. Rep. 453; Washing- eoi See ante, § 158 a (2) (n) ton Natural Gas, Co. v. Johnson, 123 (bb). Pa. 576, 16 Atl. 799, 10 Am. St. Rep. 6922 Williams, Executors (9th 553; Consolidated Coal Co. v. Peers, Ed.) 1634; Woerner, Administration, 166 111. 361. 46 N. E. 1105, 38 L. R. § 372; 2 Piatt, Leases, 367; 1 Wms. A. 624. See ante, § 158 a (2) (n). Saund. 1, note to Jevens v. Harridge. But he is not relieved as regards See ante, § 158 a (2) (h). 1132 RENT. §181 accruing after his decedent's death.^** If the decedent was the original lessee, the executor or administrator is liable, to the ex- tent of the assets, for the rent which may accrue until the ex- piration of the lease, even though the lessee may have assigned the leasehold to another,^^* the assets of the lessee's estate being thus chargeable to the same extent as would have been the lessee himself.®®^ Nor can the executor or administrator of the original lessee avoid such liability by himself making an assignment.^^* On the other hand, if the decedent was not the original lessee, but was a mere assignee of the leasehold, and he did not expressly assume liability upon the covenants of the lease, the -assets of his estate are not liable for rent which may have accrued after a reassignment of the leasehold by the decedent,®®^ and likewise the assets of the estate may be relieved from rent subsequently to accrue by means of an assignment bj' the executor or adminis- trator himself.^^* Not only is the personal representative of the tenant liable as such for rent to accrue, that is, to the extent of the assets of the decedent's estate, but he is also liable personally as an assignee by operation of law, provided he takes possession of the prem- ises.®^9 It has been decided, however, that he may show in 693 House V. Webster, Yel. 103; len, 127 Mass. 248;. Scott v. Lunt's Helier v. Casebert, 1 Lev. 127; Cog- Adm'r, 32 TJ. S. (7 Pet.) 596. hil V. Freelove, 3 Mod. 325; Green- "os See ante, § 55 a. leaf V. Allen, 127 Mass. 248; Tray- 696 Heller v. Casebert, 1 Lev. 127; lor V. Cabanne, 8 Mo. App. 131; Al- Coghil v. Freelove, 3 Mod. 325; Pit- siip V. Banks, 68 Miss. 664, 9 So. cher v. Tovey, 1 Salk.' 81, 4 Mod. 71; 895, 3 L. R. A. 598, 24 Am. St. Rep. Pate v. Oliver, 104 N. C. 458, 10 S. 294; Howard v. Heinerschit, 16 Hun E. 709. (N. y.) 177; Wilcox v. Alexander 697 See ante, § 158 a (2) (n). (Tex. Civ. App.) *32 S. W. 561; 698 in Rowley v. Adams, 4 Mylne Hutcbings v. Commercial Bank, 91 & C. 534, the executor was held lia- Va. 68, 20 S. B. 950. ble for failing to do so. In Pennsylvania it has been de- 699 Rich v. Frank, Cro. Jac. 238; cided that the estate of one who has Wollaston v. Hakewill, 3 Man. & G. become boiind for a "ground rent" 297; In re Bowes, 37 Ch. Div. 128; is not liable beyond the value of Howard v. Heinerschit, 16 Hun (N. the land. Ante, § 55 a, at note 76. Y.) 177; 1 Wms. Saund. 1, note to 694 Helier v. Casbard, 1 Sid. 266; Jevens v. Harridge. Contra, sem- Coghil V. Freelove, 3 Mod. 325; 1 ble, Yarborough v. Ward, 34 Ark. Wms. Saund. 241 a, note (5) to 204. Thursby v. Plant; Greenleaf v. AI- § 181 PERSONS I4ABLE. 1133 diminution of such liability that the profits obtainable from the land are less than the rent,^°° and that he may, in such case, re- lieve himself from liability by relinquishing possession to the landlordJ"^ He may also assign to another and thus terminate his liability as assignee.''"^ d. Subtenants. A person to whom the tenant makes a sub- lease, or his assignee, is not in privity either of contract or es- tate with -the head landlord, and is consequently not liable for rent reserved by the head lease,''''3 though he is obviously liable for the rent reserved, by the sublease. Within this rule is the ease of a person who goes into possession by permission of the tenant, without any assignment of the leasehold, and without any formal lease from him, he being at most, it seems, his tenant at will or periodic tenant.'"'* Occasionally a statute provides that one in possession of land 700 BlUinghurst v. Speerman, 1 lege v. Clough, 8 N. H. 22; James v. Salk. 297; Rubery v. Stevens, 4 Kurtz, 23 Pa. Super. Ct. 304; Har- Barn. & Adol. 241; Reld v. Tenter- vey v. McGrew, 44 Tex. 412; Way v. den, 4. Tyrw. Ill; In re Bowes, 37 Holton, 46 Vt. 184. Compare § 158 Ch. Div. 128; Rendall v. Andreae, 61 a (2) (d), ante. Law J. Q. B. 630; Whiteliead v. The subtenant may, however, be Palmer [1908] 1 K. B. 151; Inches liable to the head landlord for the V. Dickinson, 84 Mass. (2 Allen) 71, rent reserved by the sublease if the 79 Am. Dec. 765. subreversion, or the rent appurten- 701 2 Williams, Executors (9th ant thereto, is transferred to the Ed.) 639; Stephens v. Hotham, 1 latter. See Simmons v. Fielder, 46 Kay & J. 571; Reid v. Tender- Ala. 304; Hessel v. Johnson, 129 Pa. den, 4 Tyrw. Ill; Remnant v. 173, 18 Atl. 754, 5 L. R. A. 851, 15 Bremridge, 8 Taunt. 191. See ante, Am. St. Rep. 716. § 58 a (2) (h), note 382. 704 See Brooks v. Allen, 146 Mass. 702 Taylor v. Shum, 1 Bos. & P. 201, 15 N. B. 584; Fisher v. Pforz- 21; Gaodland v. Bwing, Cab. & B. heimer, 93 Mich. 650, 53 N. W. 828; 43.' Camp V. Scott, 47 Conn. 366; In 703Holford V. Hatch, 1 Doug. 183; re Campbell's Estate, 21 Pa. Super. Sexton V. Chicago Storage Co., 129 Ct. 424. See ante, §§ 13 a (3), 14 b 111. 318, 21 N. B. 920, 16 Am. St. (2), 158 a (2) (d). Rep. 274; Shattuck v. Lovejoy, 74 In Foucar v. Holberg, 85 Ark. 59, Mass. (8 Gray) 204; Carver v. Pal- 107 S. W. 172, it was held that if mer, 33 Mich. 342; Stewart v. Long the subtenant agreed with the ten- IslaJid R. Co., 102 N. Y. 601, 8 N. E. ant, his lessor, to pay the rent, the 200, 55 Am. Rep. 844; Rehm v. head landlord could sue on this Weiss, 8 Misc. 625, 28 N. Y. Supp. agreement as having been made for 772; Austin v. Thomson, 45 N. H. his benefit. 113- Trustees of Dartmouth Col- 1134 RENT. §181 shall be liable for the amount or proportion of the rent due on the land,''''^ the effect of which would seem to be to impose lia- bility on a subtenant in favor of the head landlord. If the lessee is insolvent, the lessor is allowed to proceed by bill in equity against the sublessee, in order to obtain satisfaction of his claim for rent out of money due the lessee under the sub- lease.'"'® An assignee of part of the leased premises, though he has beeo compelled to pay the entire rent, and though the lessee, his as- signor, is insolvent, cannot compel contribution from a sublessee of another part, since, as has been previously stated, a sublessee is not liable on the cove-nants.'^"^ A person in trust for whom ano^/her takes a lease is not liable for the rent. He is, like a subtenant, not in privity with the landlord.''«8 "OB Minnesota Rev. Laws 1905, § 3330; Rhode Island Gen. Laws 1896, c. 269, § 9; Wisconsin Rev. St. 1898, § 2189. In St. Joseph & St. L. R. Co. v. St. JL,ouis, I. M. & S. R. Co., 135 Mo. 173, 36 S. W. 602, 33 L. R. A. 607, it was decided that Rev. St. 1889, § 6388, providing that rent may be re- covered from a lessee, his assignee or "undertenant" by the "remedies given in the preceding sections," did not give the landlord a right to sue the undertenant at law for rent unless it was sought to enforce a lien or to issue an attachment, these being the only remedies given by the preceding sections. This deci- sion is followed in Glasner v. Fred- ericks, 73 Mo. App. 424. It does not appear to have been decided whether the same construction would be placed on a similar Kentucky stat- ute (St. 1903, § 2305). It is held In Georgia that, under the statutory prohibition of a sub- lease without the lessor's assent, the lessor may elect to treat the sub- lessee as his own tenant, though this he can do only by taking some affirmative action showing the elec- tion. Hudson V. Stewart, 110 Ga. 37, 35 S. E. 178; McConnell v. East Point Land Co., 100 Ga. 129, 28 S. E. 80. See ante, § 152 n. "00 Goddard v. Keate, 1 Vern. 87 ; Haley v. Boston Belting Co., 140 Mass. 73, 2 N. E. ,785; Forrest v Durnell, 86 Tex. 647, 26 S. w! 481; Otis V. Conway, 114 N. Y. 13, 20 N. E. 628; Glasner v. Fredericks, 73 Mo. App. 424; Kemp v. San Antonio Catering Co., 118 Mo. App. 134, 93 S. W. 342; 1 Story, Eq. Jur. § 687. The New Jersey statute (1 Gen. St. p. 1212, § 22) requires the sub- tenant, on notice from the head landlord, to pay to the latter the rent due under the sublease. As to the right of the sublessee to pay the head rent and assert it as a payment on the rent due by him, see ante, § 177 e. 707 Johnson v. Wild, 44 Ch. Div. 146. 70S Walters v. Northern Coal Min. § 181 SURETIES AND GUARANTORS. 1135 e. Principals and agents. The question of the person liable for rent when the lease is nominally to an agent is determined by the ordinary doctrines of agency. If the instrument of lease is under seal, executed by the agent in his own name, and does not purpart to be the act of the principal, the agent, and not the principal, is liable.'^os And even though the instrument is not under seal, if it purports to be executed by one in his own behalf, he is liable as principal,''^*' though the person for whom he acted may also be liable. One who does not execute the instrument of lease, and who is not the nominal lessee thereunder, is not liable merely because he takes possession as agent in behalf of the les- see,^* ^ and a fortiori he is not liable if he does not take possession and merely acts as agent in paying the rent.''^* f. Sureties and guarantors — (1) Nature of contract. A per- son other than the lessee, or an assignee of the lessee, may be lia- ble for the rent by reason of a contract on his part as surety for, or guarantor of, its payment by the lessee. The rights and lia- bilities of one, so making himself responsible for the performance by the lessee of his covenant to pay rent, are governed by the same rules as are ordinarily applicable to a contract of surety- ship or guaranty, but the circumstances calling for the applica- tion of these rules, in connection with the liability of a lessee, are sometimes peculiar, and it seems proper to set out the de- cisions which have been rendered in this regard. The distinction between a contract of suretyship and one of guaranty is in effect that the surety is a party with the principal to the original contract, and is liable as such, while the guaran- tor is an independent contractor, agreeing to become responsible only in case the principal fails or is unable to pay.''^^^ (2) Form and validity of contract. A contract of suretyship Co., 5 De Gex, M. &. G. 629; Cox v. tii Dresner v. Fredericks, 91 App. Bishop, 8 De Gex, M. & G. 815 ; Ram- dIv. 224, 86 N. Y. Supp. 589 ; Ste-w- age V. Womack [1900] 1 Q. B. 116. ^rt v. Perkins, 3 Or. 508. 700 Beck V. Eagle Brewery (N. J. 712 Ireland v. United States Mortg. Bq.) 30 Atl. 1100; Borcherllng v. ^ ,^^^^^ ^^ j,.^ 95_ ^g j^ Kata, 37 N. J. Eq. (10 Stew.) 150; '. Kiersted v. Orange & A. R. Co., 69 N. ^- ^"^P' ^^^' "- "^ ^- ^- *"'' Y. 343, 25 Am. Rep. 199. See ante, N- ^- ^*'^^- R ^1 ^ 713 Stearns, Suretyship, I 6; 1 Tiostobie V. Dills, 62 111. 432. Brandt, Suretyship, § 2. See ante, § 57 b. 1136 RENT. § 181 or guaranty must be in writing, under the provision of the statute of frauds with reference to contracts to answer for the debt or default of another.^i* The contract may be incorporated in the same instrument as the lease itself, or it may be evidenced by a separate instrument. A separate instrument evidencing such a contract, a bond for the payment of rent for instance, need not, it has been held, be executed by the lessee as well as by the sureties,'^!^ this accord- ing with the ordinary rule that a bond is valid without the principal's signature, if the latter 's liability exists independently of the bondJi^ Any omission in the contract may be supplied by reference to the instrument of lease itself, if this is so referred to in the contract of suretyship or guaranty as to be sub- stantially incorporated therein.''^'' A contract of suretyship or guaranty is, like most contracts, invalid if not supported by a consideration. If the contract is made at the same time as the original lease, the making of the lease is a sufficient consideration.'^is if^ on the other hand, the contract is made after the lease, a new consideration is neces- sary.'^i'* But a guaranty executed after the lease will be deemed contemporaneous therewith for this purpose, if it is delivered at the same time and before the lessee is permitted to occupy .'^2'' (3) Evidence of relation. It is generally held that one who executes an instrument together with another person, apparent- ly as a principal obligor, may show, as against the obligee, as 714 Stearns, Suretyship, § 24 et ton v. Huntington, 67 Mich. 139, 34 seq. See Ward v. Hasbrouck, 169 N. W. 279; McKensie v. Parrell, 17 N. T. 407, 62 N. E. 434. N. Y. Super. Ct. (4 Bosw.) 192. 715 City of New York v. Kent, 57 719 Bullen v. Morrison, 98 111. App. N. Y. Super. Ct. (25 Jones & S.) 109, 669; Lewin v. Barry, 15 Colo. App. 5 N. Y. Supp. 567, afd., without opin- 461, 63 Pac. 121. Ion, 128 N. Y. 600, 28 N. E. 252. The lessor's forbearance to eject 716 See Deering v. Moore, 86 Me. the tenant whose rent was in arrear 181, 29 Atl. 988, 41 Am. St. Rep. 534; was held a sufficient consideration State V. Bowman, 10 Ohio, 445; for a guaranty by a third person of Trustees of Schools v. Sheik, 119 111. both the past and future rent. Vinal 579, 8 N. E. 189, 59 Am. Rep. 830; v. Richardson, 95 Mass. (13 Allen) Stearns, Suretyship, § 140. 521. 717 Otto V. Jackson, 35 111. 349. 720 Garland v. Gaines, 73 Conn. 718 Adams v. Bean, 12 Mass. 137, 662, 49 Atl. 19, 84 Am. St. Rep. 182. 7 Am. Dec. 44; Voullaire v. Wise, 19 See Stearns, Suretyship, § 16. Misc. 659, 44 N. Y. Supp. 510; Pres- § 181 SURETIES AND GUARANTORS. 1137 well as against his co-obligor, that it was understood that he was to be liable as a surety only/ 21 and this view has been applied in the case of one signing an instrument of leaseJ^a The fact that he is surety, while not itself relieving him from liability for the rent as an original obligor, ^23 j^ay enable him to claim im- munity by reason of the lessor's consent to an alteration or ex- tension of the lessee's contract to pay rent,^^* or it may relieve him from liability by reason of the expiration of the original lease and of the contract to pay rent thereunderJ*" (4) Expiration of liability. The question has occasionally arisen whether, upon a construction of the contract of suretyship or guaranty, the liability thereunder extends to rent accruing after the term designated by the lease, as when the lease is re- newed, or the lessee holds over without renewal. Ordinarily one who becomes surety for the payment of the rent reserved by a lease is not liable for rent \vhich accrues after the term, as a result of the lessee 's action in holding over, since the rent in such 7214 Wigmore, Evidence, § 2438; There are occasional decisions by 1 Brandt, Suretyship (3d Ed.) 39. intermediate courts of New York 722 See Carpenter v. King, 50 apparently to the effect that one Mass. (9 Mete.) 511, 43 Am. Dec. who joins in executing the Instru- 405; Kennebec Bank v. Turner, 2 ment of lease as surety or guarantor Me. (2 Greenl.) 42; Hubbard v. Gur- is under no liability to the lessor ney, 64 N. Y. 457; Nims v. Bigelow, whatever as regards the rent, ow- 44 N. H. 376; Bulkley v. House, 62 ing to the fact that the considera- Conn. 459, 26 Atl. 352, 21 L. R. A. tion is not stated in writing as re- 247; Kennedy v. Evans, 31 HI. 258; quired by the statute of frauds. Mariners' Bank v. Abbott, 28 Me. See Gould v. Moring, 28 Barb. (N. 280; Hunt v, Chambliss, 15 Miss. (7 Y.) 444; Decker v. Gaylord, 8 Hun Smedes & M.) 532; American & Gen- (N. Y.) Ill; Evans v. Conklin, 71 eral Mortg. & Inv. Corp. v. Mar- Hun, 536, 24 N. Y. Supp. 1081. But quam, 62 Fed. 960. Contra, McCol- the contract being made at the lum V. Boughton, 132 Mo. 601, 30 time of the lease, no other conslder- S. W. 1028, 33 S. W. 476, 34 S. W. ation than the making of the lease 480, 35 L. R. A. 480. And see Hobbs would seem to be necessary (ante, V. Batory, 86 Md. 68, 37 Atl. 713, to at note 718), and that this is the the effect that the true relations of consideration is Inferentlally appar- the parties cannot be shown. ent on .the face of the writing. See 723Bowen v. Clarke, 25 Or. 592, Stearns, Suretyship, § 27. 37 Pac. 74; Perkins v. GSoodman, 21 t24 See post, S 181 f (5). Barb. (N. Y.) 218 ; Way v. Reed, 88 t2b Knowles v. Cuddeback, 19 Hun Mass. (6 Allen) 364. See Thomas (N. Y.) 590; Kennebec Bank v. Tur- V. Gumaer, 7 Wend. (N. Y.) 43. ner/ 2 Me. (2 Greenl.) 42. li. and Ten. 72. 1138 RENT. § 181 case becomes due from the lessee, not by reason of the original reservation of rent, but by a new contract inferred from the con- duct of the parties, as to which new contract the surety has un- dertaken no responsibilityJ^^ As has been judicially remarked: "It is not an unreasonable presumption that a tenant, who holds over, means to pay the same rent which he contracted to pay tmder the expired lease; but it would be most unreasonable to presume from the tenant's holding over that the surety intended to bind himself for the rent of a time beyond the contract. "^27 On this principle it has been decided that, where a lease for a month provided that if the lessee paid rent when it was due he might continue in occupation, a guarantor of the lessee's contract was not bound for rent subsequently accruing, if the rent for the first month was not paid when due.'''^* Though the guaranty does not ordinarily apply to rent accru- ing upon such holding over, it may happen that the lease pro- vides for the payment of rent in case of holding over, even with- out giving the right to hold over, and one guaranteeing the rent under the lease would remain liable for rent thus accruing after the term riamed,''^*' but not for rent for which, by a new agree- ment, the lessee becomes liable on holding over.'^*" In Pennsyl- vania it has been decided that, if a lease provides for a tenancy for one year, with a stipulation that, if the lessee continues in possession thereafter, he shall hold from year to year till the tenancy is terminated by notice, persons who make themselves responsible as sureties for the lessee 's contract are liable for rent for succeeding years, if the lessee continues in possession ;^3i 720 Gadsden v. Quackenbush, 9 t30 Warren v. Lyons, 152 Mass. Rich. Law (S. C.) 222; Brewer v. 310, 25 N. E. 721. Knapp, 18 Mass. (1 Pick.) 332, 11 In Tayleur v. Wildin, L. R. 3 Am. Dec. 183; Kennebec Bank v. Bxch. 303, it was decided that if a Turner, 2 Me. (2 Greenl.) 42. See notice to quit was given to a ten- Gushing v. Cable, 48 Minn. 3, 50 N. ant from year to year, the tenancy W. 891. terminated at the end of the year, 727 Brewer v. Thorp, 35 Ala. 9, and an agreement withdrawing the per Waiker, C. J. notice was in effect an agreement 728 Allen V. Herman, 3 Phila. for a new tenancy, and consequently (Pa.) 378. the guarantor on the original lease 729 Salisbury v. Hale, 29 Mass. (12 was not liable for rent subsequently Pick.) 416; Rice v. Loomis, 139 accruing. Mass. 302, 1 N. E. 548. See Edwards 731 Coe v. Vogdes, 71 Pa. 383. V. Hale, 91 Mass. (9 Allen) 462. § 181 SURETIES AND GUARANTORS. 1139 but that in such a ease, if the surety notifies the lessor, in suffi- cient season to enable the lessor to terminate the lease by notice, either not to renew the lease or to obtain other security, and the surety thereafter dies, equity will intervene to protect the surety's estate, as against a continuance of his liability as a re- sult of the failure to terminate the tenancy J*^ That one binds himself as surety for the payment of the rent reserved- by the lease does not seem ground for regarding hini as so liable for rent reserved on a subsequent lease, even though made in renewal of the former lease, and in accordance with a covenant to grant a renewaU^* But the terms of his contract may be such as to impose a continuance of liability during the renewal term,^34 ^nd the contract has been regarded as open to such a construction when the lessor, in leasing for one year, agreed to lease to the same lessee for another year, at the latter 's option, upon the same terms and conditions, and the guaranty was to pay the "aforesaid rent."'*^ In case the instrument of lease is to b^ regarded, not as creating a term with a right of renewal, but as creating a term with a right of "extension," which is, ap- parently, in legal effect, a lease for a term with a right in. the lessee to terminate the tenancy at the end of a shorter period,'^^* one becoming liable as surety for the rent reserved would, it seems, be liable for the longer term namedJ^'^ 732 Pleasonton & Blddle's Appeal, who signed a lease for one year as 75 Pa. 344. surety for the lessee was liable for 733 It is so decided in Knowles v. a second year's rent, the lease pro- Cuddeback, 19 Hun (N. Y.) 590. viding "this contract is to be re- in Woods v. Doherty, , 153 Mass. newed for three consecutive years 558, 27 N. E. 676, whei'e the lease if it is fulfilled to the satisfaction was for three years at a certain of both parties." This case is dis- rent, the lessee "to have the right tinguished in the subsequent case of to renew the lease for the further Knowles v. Cuddeback, 19 Hun (N. term of two years, If he shall so Y.) 590, supra, upon the theory ap- elect," a guaranty for the "payment parently that the words "this con- of the rent by the lessee, according tract" extended to the contract of to the terms of the lease, providing suretyship. said lessee shall live to the end of tsd Deblois v. Earle, 7 R. I. 28. the term," was held not to extend And so, In Shand v. McCloskey, 27 to the additional "two years upon Pa. Super. Ct. 260, when one be- tbe le«feee's exercise of his right of came surety "for the above rent." renewal. tso See post, § 218. 734 In Decker v. Gaylord, 8 Hun ts- See Dufau v. Wright, 25 Wend. (N. Y.) 110, it was held that one (N. Y.) G36, where there is a die- 1140 RENT. § 181 In a guaranty of rent, so long as the lessee named "shall oc- cupy the premises," the word "occupy" has been held to be equivalent to "hold as tenant," so that the liability thereunder continues, though the lessee abandons the premises.''.^* The liability of a guarantor or surety ceases upon the cessation of the liability of his principal, since "no collateral promise to pay the debt of another can have any force when the debt of the other has been satisfied, and since the equity of the promisor to have indemnity from the principal is cut off by this transac- tion, "'^s On this theory, upon the cessation of the lessee's lia- bility by reason of a surrender of the leasehold,'^*" or by: reason of a release of the lessee 's liability for rent given by the lessor, ^*i the liability of the guarantor or surety for subsequently accru- ing rent also comes to an end. But his liability as regards rent which has already accrued is not affected.'^ ■*2 The guarantor's liability would also cease upon a termination of the lease by for- feiture,''** unless, perhaps, the lease provides for a continuing liability for rent in such case.' '^ And his liability, it is said, terminates on the issue of a warrant in summary proceedings.'^'''' It also will terminate upon an eviction by title paramount.'^" turn that this would be the case up- York v. New York Kefrigerating- on a lease for one year with .the Const. Co., 8 Misc. 61, 28 N. Y. privilege of continuing in posses- Supp. 614, afd. 82 Hun, 553, 31 N. sion for four years. Y. Supp. 714. 738 Morrow v. Brady, 12 R. I. 130. 743 See post, § 194 k. Compare Woods v. Broder, 58 Misc. ti* in Way v. Reed, 88 Mass. (6 567, 109 N. Y. Supp. 908. Allen) 365, it was held that a joint 739 Stearns, Suretyship, § 132. lessee who covenanted jointly tO' 740 Brady v. Peiper, 1 Hilt. (N. pay the rent, although described as Y.) 61; White v. Griffing, 44 Conn, "surety," was liable for rent accru- 437; Nichols v. Palmer. 48 Wis. 110, ing after the re-entry by the lessor 4 N. W. 137; Koenig v. Miller Bros, under a clause providing that the les- Brewery Co., 38 Mo. App. 182; Til- sor might re-enter for breach of cov- lotson v. Herrick, 66 111. App. 660; enants and relet at the risk of the Barrett v. Boddie, 76 111. App. 661; lessees, who should remain liable White v. Walker, 31 111. 422; Read- for rent for the residue of the term, ing Trust Co. v. Jackson; 22 Pa. See post, at notes 927-952. Super. Ct. 69. 745 Newcombe v. Eagleton, 16 741 Kingsbury y. Williams, 53 Misc. 285, 38 N. Y. Supp, 424. Barb. (N. Y.) 142. 746 Duff v. Wilson, 69 Pa.- 316. 742 Kingsbury v. Westfall, 61 N. This was a case of eviction by a pur- Y. 356; McKensie v. Farrell, 17 chaser under a paramount mort- N. Y. Super. Ct. (4 Bosw.) 192; New gage, and that the lessee had cov- § 181 SURETIES AND GUARANTORS. 1141 On the same principle, the liability of a surety for the perform- ance of the obligation of the assignee of a lease to pay rent comes to an end upon the cessation of such obligation by an assignment overJ*'' (5) Discharge of liability. As is well settled, a surety or guarantor is relieved from liability by a material alteration in the terms of the principal contract,^ *8 and accordingly it has been decided that a surety for rent is relieved if the lessor releases one of the lessees, or "buys back" a part of the land leased.''*' A sublease by the lessee does not involve any such alteration of the contract for the payment of rent as to relieve the lessee's surety, even though the sublease is to the lessor himself.''^'' Nor does an assignment have such an effect.''^^ And the lessor's as- sent to an assignment or sublease by the lessee does not discharge the surety, even though such assent is expressly required.'^s^ No alteration in the terms of the contract as to rent can have the effect of discharging the surety if such change is provided enanted to pay this off was regard- see, the lessee agreeing to pay an in- ed as immaterial. In Starkweather creased rent. In a strong dissenting v. Maglnnis, 98 111. App. 143; Id., 196 opinion, such increase in the leased 111. 274, 63 N. B. 692, it was decided premises, with a corresponding in- that the eviction of the tenant by crease in rent, was regarded as in the lessor relieved the sureties from effect merely a lease of additional any further liability. But since premises, the first lease remaining such eviction only suspends the ten- unchanged. ant's liability for rent (post, § 182 rsoMedary v. Gathers, 161 Pa. 87, e [1] [a]), it would seem to have 28 Atl. 1012; Sutherland v. Shelton, no greater effect upon the surety's 59 Tenn. (12 Heisk.) 374. liability. '"^ Fleck v. Feldmau, 54 Misc. 228, 747 In re Willey's Estate, 12 Phila. 104 N. Y. Supp. 366; Almy v. Greene, (Pa.) 152. 13 R. I. 350, 43 Am. Rep. 32. T« Stearns, Suretyship, c. 4; 1 752 Morgan v. Smith, 70 N. Y. 537; Brandt, Suretyship, c. 15. Hall v. Ochs, 34 App. Div. 103, 54 N. 749 Prior V. Kiso, 81 Mo. 241. See Y. Supp. 4; Gilbert v. Henck, 30 Pa. Stern v. Sawyer, 78 Vt. 5, 61 Atl. 36, 205; Dietz v. Schmidt, 27 111. App. 112 Am. St. Rep. 890, post, note 760. 114; Way v. Reed, 88 Mass. (6 Al- In New York v. Clark, 84 App. len) 364f Stein v. Jones, 18 111. Div. 383, 82 N. Y. Supp. 855, ft was App. 543; Grommes v. St. Paul decided that the surety was dis- Trust Co., 147 111. 634, 35 N. E. 820, charged where the premises leased, 37 Am. St. Rep. 248; Oswald v. a dock, were enlarged by an agree- Fratenburgh, 36 Minn. 270, 31 N. ment between the lessor and les- W. 211. 1142 RENT. §181 for by the lease/^* or is assented to or induced by the surety,^*^ or if the alteration is ineffective for want of a writing or other informality J 5^ An agreement between the lessor and lessee, that the latter shall make certain improvements and be credited therewith on the rent, is not an alteration of the contract to pay rent within the ruleJ^" Nor is the surety discharged by the act of the lessor in receiving an order drawn by the lessee on a third person and accepted by the latter, this not being understood by the lessor or lessee to relieve the latter from any of his obli- gations.'^^ The cases are not in accord as to whether a surety is relieved from liability by an alteration in the principal contract, which is, in its nature, beneficial to him, as reducing his liability.'*^ In England it has been decided that a surety will not be discharged if it is self-evident, without inquiry, that the alteration is bene- ficial to him, while he is discharged if evidence is necessary to show that the alteration is beneficial. This rule was established in a case in which a lessor reduced the rent in consideration of the surrender of the leasehold in part of the premises, and the surety was accordingly held to be discharged.'''*^ In one state a surety has been regarded as discharged by a surrender of part of the leased premises, made without his consent, without refer- ence to whether such surrender was beneficial or harmful to the surety .''*'' But on the other hand it has been decided in at least 763 Woodbridge v. Richardson, 2 Standard Brewery Co. v. Kelly, 6{ Thomp. & C. (N. Y.) 418. So a re- 111. App. 267. linqulsliment of possession by the 'se Morrill y. Baggott, 157 III. 240, lessee to the lessor was held not to 41 N. E. 639. relieve the surety, the lessee being The acceptance of the rent month then in default, and the lease pro- ly instead of quarterly does not dis viding that the lessor might take charge the surety. Ogden v. Row^ possession on default. American 3 E. D. Smith (N. Y.) 312. Bonding Co. v. Pueblo Inv. Co. (C. 737 Burnham v. Hubbard, 36 Conn C. A.) 150 Fed. 17, 9 L. R. A. (N. 539. S.) 557. 758 See Steams, Suretyship, § 79. 754Lienane v. Mayer, 18 Misc. 454, 759 Holme v. Brunskill, 3 Q. B. 41 N. Y. Supp. 960; Newcombe v. Div. 495. Eagleton, 19 Misc. 603, 44 K. Y. too stern v. Sawyer, 78 Vt. 5, 61 Supp. 401. Atl. 36, 112 Am. St. Rep. 890. It la 753 Ogden V. Sanderson, 3 E. D. also, in this case, adjudged: that ths Smith (N. Y.) 166; Shufeldt v. Gus- sureties were discharged beCausa tin, 2 B. D. Smith (N. Y.) 57; the lessor did not comply with hia § isi SURETIES AND GUARANTORS. 1143 two cases that a reduction of rent in itself does not discharge the suretyjsi An important application of the principle, that an alteration in the principal contract discharges the surety, occurs in the rule that a binding contract for the extension of time of per- formance of a contract has that effect.'''^ Accordingly, the sure- ty of the lessee is discharged by a contract between the lessor and lessee extending the time for the payment of rentJ*^ But an extension of time as to rent subsequently to accrue does not affect the surety's liability on rent already acerued,^^* and, ordinarily, an extension of time as to one installment would not affect his lia- bility for another installmentJ^^ An extension of time for pay- ment does not affect the surety's liability, if it is expressly stipu- lated between the creditor and principal debtor that it shall not have that effect, since in that case the surety has the same right as before immediately to pay the debt and sue the principal debtorjo^ And there is authority for the statement that the same principle will apply in the case of any other alteration of the contract to pay rentJ^'^ The surety is not discharged by the fact that the premises are used for an illegal purpose,''^^ unless he knew of such intended use at the time of becoming suretyJ** A surety is, it has been decided, not discharged by the land- lord's failure to assert a lien for the rent upon the subtenant's erop,"o nor by the death of the lessee,^'^^ and the surety's estate covenant to furnish the premises 704 Coe v. Caasidy, 72 N. Y. 133. and put them in repair and the les- tbb Ducker v. Rapp, 67 N. Y. 464. see nevertheless took possession, It ree Stearns, Suretyship, § 92. heing said that he thus "took pos- 767 Morgan v. Smith, 70 N. Y. 537; session under a different contract Palmer v. Purdy, 83 N. Y. 144. than the one which the defendants 768 Way v. Reed, 88 Mass. (6 Al- guaranteed the performance of on len) 364. his part," and that they "were there- 769 Mound v. Barker, 71 Vt. 253, by released." The meaning of this 44 Atl. 346, 76 Am. St. Rep. 767. statement Is somewhat obscure. 770 Bwing v. Williams (Ky.) 39 S. 761 Preston v. Huntington, 67 W. 843. Mich. 139, 34 N. W. 279 ; Ellis v. Mc- 771 Holthausen v. Kells, 18 App. Cormack,'l Hilt. (N. Y.) 313. Dlv. 80, 45 N. Y. Supp. 471; Id., 154 762 Steams, Suretyship, § 81 et N. Y. 776, 49 N. E. 1098; Hall v. seq. Ochs, 34 App. Div. 103, 54 N. Y. 703 Ducker v. Rapp, 67 N. Y. 464. Supp. 4. 1144 RENT. § 181 remains liable after his own deatliJ'^ Nor can a surety or guar- antor relieve himself by notice to the lessor that he will no longer be liable for the rent."^^ The surety or guarantor is not liable if he was induced to as- sume that position by fraud on the part of the lessor,'^^* but he cannot, it has been decided, assert fraud on the part of the lessor in inducing the lessee to take the lease, if the lessee, by failing to repudiate the lease, has precluded himself from so doingj's If the lessee treats the lease as valid, it has been held, a guar- antor of the rent cannot question it,''^^ and so his liability is not affected by the fact that the lease does not comply with the stat- ute of frauds, if the lessee has entered thereunderJ^'^ (6) Assignment of right of action. The right of action against a surety, strictly so called, being based on the original contract, should pass by assignment of the contract to another, to the same extent as the right of action against the principal, and so a surety for rent is ordinarily liable, it seems, to the same ex- tent as his principal, to one to whom the reversion or rent may be traJisferred by the lessorJ^* In the case, however, of a sep- arate bond for the payment of the rent, signed by the lessee and his sureties, the mere transfer of the reversion or of the rent would not, it seems, give the transferee any right of action on the bond, in the absence of an express transfer of the bond, and the question whether the bond itself is transferable depends upon the law of the particular jurisdiction.''''^ 772 Holthausen v. Kells, 18 App. self handed it to the lessor as hav- Div. 80, 45 N. Y. Supp. 471. ing been properly executed. 773 Snow V. Horgan, 18 R. I. 289, 777 Duffee v. Mansfield, 141 Pa. 27 Atl. 338. 507. 21 Atl. 675. 774 Mendelson v. Stout, 37 N. Y. 778 it is apparently so decided in Super. Ct. (5 Jones & S.) 408. See Allen v. Culver, 3 Denio (N. Y.) Stearns, Suretyship, §§ 105, 106. 284. 775 Carhart v. Ryder, 11 Daly (N. In Steele v. Mills, 68 Iowa, 406, 27 Y.) 101. See Stearns, Suretyship, N. W. 294, it is decided that the as- § 103. signee of the rent may sue the les- 776 Clark V. Gordon, 121 Mass. 330. see's sureties by force of the statu- In Sidney B. Bowman Cycle Co. v. tory provision authorizing the as- Dyer, 31 Misc. 496, 64 N. Y. Supp. signee of a bond or other instrument 551, it was held that the guarantor in writing by which the maker could not assert that the lease was promises to pay a sum of money, to not properly executed by the lessee sue in his own name thereon, when he, the guarantor, had him- 77s in Stevens v. Wadleigh, 6 Ariz. § 181 SURETIES AND GUARANTORS. II45 As to the question of the transferability of a contract of guar- anty, as distinguished from one of suretyship, the authorities are to the effect that if it is in terms made for the benefit of a par- ticular person, that is, if it is a "special" and not a "general" guaranty, only such person cafl assert any rights thereinJ*" In one or two cases, however, a guaranty of rent has been regarded as assignable without reference being made to the distinction be- tAveen a general and a special guaranty ,''81 and a guaranty of rent might perhaps ordinarily be regarded as general, as being intended for the benefit of whoever may become entitled to the rent. (7) Remedies. Since a surety, strictly so called, is a party to the original contract, he is not entitled to notice before suit by the creditor,''82 ^nd this rule applies, no doubt, in the case of a surety for rent. Ordinarily a guarantor of rent is similarly liable without any previous demand on the principle, or notice to the guarantor of the principal's default, the contract containing no specific requirement to this effect,''^* though occasionally the view 351, 57 Pac. 622, it is assumed that ance of any agreement contained In such a bond may be assigned to the the lease, or for the recovery of rent, assignee of the reversion. as his grantor might have had if T80 See Stearns, Suretyship, § 52. such reversion had remained in the TsiThat a guaranty of rent is as- grantor, does not enable the grantee slgnable, see Cunningham v. Norton of the reversion to sue in his own (Cal.) 40 Pac. 491. In Potter v. name upon a guaranty of rent en- Gronbect, 117 111. 404, 7 N. B. 586, dorsed on the lease, but it is there it is said that a guaranty of the pay- said that the grantee might sue In ment of rent is assignable as be- the name of the lessor, ing an instrument in vrritlng for 782 Stearns, Suretyship, § 6. the payment of money, but it is tss Welch v. Walsh, 177 Mass. 555, there decided that a guaranty of the 59 N. E. 440, 52 L. R. A. 782, 83 Am. payment of rent and the perform- St. Rep. 302; Cass v. Shewman, 61 ance of other covenants, not being Hun, 472, 16 N. Y. Supp. 236; Voltz v. entirely for the payment of money Harris, 40 111. 155; J. Obermann and being indivisible, is not assign- Brew. Co. v. Opherking, 33 111. App. able as regards the rent. In Har- 26; Turnure v. Hohenthal, 36 N. Y. beck V. Sylvester, 13 Wend. (N. Y.) Super. Ct. (4 Jones & S.) 79. 608, It is decided that the statutory A provision that if the rent is provision that the grantee of a re- not paid when due, the lessor will version or rent shall have the same notify the sureties, and they shall remedies by entry, action, distress have the right to dispossess the les- or otherwise for the nonperform- see and take possession, does not 1146 RENT. § 181 is asserted that a guarantor may assert a claim on account oi" any loss arising from failure to notify him of the defaultJ^* A surety is not entitled to have a demand made upon the principal, or to have any proceedings taken against him, before suit against the surety,''*^ and this is the case with a guarantor, unless the contract of guaranty is such as to import an intention that the remedies against the principal first be exhausted J** An action may be brought on a guaranty of rent as soon as any installment falls due, or it may be postponed till the end of the term, and suit may then be brought for all the installments^*^ Ordinarily, a surety can be sued jointly with the principal and a guarantor cannotJ*® The cases involving the right to join in one action the principal debtor and the surety for, or guarantor of, the rent, are usually in accord with this general ruleJ** The cases are not in accord as to whether a surety is entitled to the benefit of a set-off or counterclaim existing in favor of the principal against the creditorJ^° In one case it has been de- cided that a counterclaim in favor of the lessee for wrongful eviction cannot be set up by his surety ,^®i but it has on the other hand been decided that, when the statute exonerates a guar- antor, if by any act of the creditor the original obligation of the render notice a condition precedent Wend. (N. T.) 216; Ducker v. Rapp, to the surety's liability. Barhydt v. 41 N. Y. Super. Ct. (9 Jones & S.) Ellis, 45 N. Y. 107. 235; Cass v. She-wman, 61 Hun, 472, 784 Ward V. Wilson, 100 Ind. 52, 16 N. Y. Supp. 236; I>edoux v. Jones, 50 Am. Rep. 763. The assertion of 20 La. Ann. 539, 96 Am. Dec. 425. this view in Vinal V. Richardson, 95 Compare Gilbert v. Henck, 30 Pa. Mass. (13 Allen) 521, is overruled 205. And see Steams, Suretyship, by Welch v. Walsh, 177 Mass. 555, § 61; 14 Am. & Eng. Enc. Lav/ (2d 59 N. E. 440, 52 L. R. A. 782, 83 Am. Ed.) 1153. St. Rep. 302, supra. 787 Bing v. Tyler, 79 111. 248; T85 Hall V. Hoxsey, 84 111. 616 ; Joyce v. Spafford, 101 111. App. 422. Haynes v. Synnott, 160 Pa. 180, 20 788 See 1 Brandt, Suretyship, § Atl. 832; Allen v. Hubert, 49 Pa. 155; 16 Enc. Pldg. & Prac. pp. 929, 259; Supplee v. Herman, 16 Pa. 942. Super. Ct. 45; Hall v. Ochs, 34 App. 789 See post, § 181 f (7). Div. 103, 54 N. Y. Supp. 4; Ewing 790 Stearns. Suretyship, § 117; 1 V. Williams (Ky.) 39 S. W. 843. Brandt, Suretyship, § 236. 788 Snow V. Horgan, 18 R. I. 289, 791 La Farge v. Halsey, 14 N. T.' 27 Atl. 338; Garland v. Gaines, 73 Super. Ct. (1 Bosw.) 171, 4 Abb. Conn. 662, 49 Atl. 19, 84 Am. St. pr. 397. Rep. 182; Ruggles v. Holden, 3 § 182 DEFENSES TO RENT. 1147 principal is altered, or the creditor's rights and remedies against the principal are in any way impaired, the guarantor of rent is fully discharged if the lessor has, by breach of a covenant, caused damage to the lessee to the amount of the rent.''*^ A surety or guarantor who is compelled to pay the rent has the rights of subrogation and contribution .which ordinarily be- long to a surety or guarantor.^ss So it has been decided that he may call upon the lessor to account for property mortgaged to the latter to secure the rent,''*'* and that he may bring an action in the name of the lessor against the surety of an assignee of the lease, if compelled to pay installments of rent which the as- signee should have paid.'^®"- ^®* § 182. Defenses available to tenant — Suspension or extinguish- ment of rent. a. Exclusion of lessee from possession — (1) By one having paramount title. We have before considered the question wheth- er the inability of the lessee to obtain possession of the leased premises owing to the action either of the lessor or of a third person gives him a right to damages as against the lessor.''*^ We will now consider whether such exclusion of the lessee from possession constitutes a defense to the lessor's claim for rent, dis- cussing separately, as in connection with the question of recovery of damages, the cases of the lessee's exclusion: (1) by one having paramount title, (2) by a stranger without title, and (3) by the lessor himself, personally or acting through another. The fact that the lessee is unable to obtain possession, owing to the possessicn of one having paramount title, is a good de- fense to a claim for rent,'"* and this has been held to be so even though the exclusion from possession extends to but a part of 7»2McAlester v. Landers, 70 Cal. Scott, 2 Hilt. (N. Y.) 550 (dictum); 79, 11 Pac. 505. State University v. Joslyn, 21 Vt. T93 See Stearns, Suretyship, c. 10; 52; Holgate v. Kay, 1 Car. & K. 341; 2 Brandt, Suretyship, e. 12. Field v. Herrlck, 14 111. App. (14 7»*Coe V. Cassldy, 72 N. Y. 133. Bradw.) 181; Ludden v. Stern, 20 795, 796 Bender v. George, 92 Pa. 36. 111. App. (20 Bradw.) 88; Duncan v. 71" See ante, chapter IX. Moloney, 115 111. App. 522; Posten v. 798 Brandt v. PhlUppl, 82 Cal. 640, Jones, 37 N. C. (2 Ired. Bq.) 350, 38 23 Pac. 122, 7 L. R. A. 224; Andrews Am. Dec. 683; Maverick v. Lewis, 3 V. Woodcock, 14 Iowa, 397; Me- McCord (S. C.) 211. cha'nlcs' & Traders' Fire Ins. Co. v. 1148 DEFENSES TO RENT. | 182 the premisesJ^^ It has been decided, however, that if the lessee takes possession of the part from which )xe is not excluded, he is liable to an action of use and occupation for such part.^"* In one case, indeed, it is stated that if the lessee takes possession of part, he is liable for the whole rent, and is remitted to his right to recover damages, by action or counterclaim, for his inability to recover possession of the other part.^"^ And it is said in the same case that the lessee may "waive" his right to the pos- session of the whole premises by taking possession of part.*"^ It would seem that the partial exclusion of the lessee from pos- session by one having paramount title might well be assimilated, so far as concerns its effect on the liability for rent, to his partial eviction by such person, so as to call for an apportionment of the rent,**** and there are occasional decisions to that effect.*"* One holding under a previous unexpired lease by the same les- sor holds by paramount title for this purpose,*"^ as for others, T98 Neale V. Mackenzie, 1 Mees. & But it was at the same time, held W. 746; Dengler v. Michelssen, 76 that the fact that the lessee made Cal. 125, 18 Pac. 138; Lawr ence v. contracts for the furnishing of the French.. 25 Wend. (N.' Y.) 443, i premises and did other acts showing Hill, 519; Goerl v. Damrauer, 27 an expectation of taking possession Misc. 555, 58 N. Y. Supp. 297; Smith when his term hegan, did not tend jv^Ba rber. 96 App. Div. 236, 89 N. to show a taking possession of part. Y. Supp. 317; Id., 112 App. Div. 187, In Sullivan v. Schmitt, 93 App. 98 N. Y. Supp. 365. In Holgate v. Div. 469, 87 N. Y. Supp. 714, it was Kay, 1 Car. & K. 341, it was de- decided that the lessee was not lia- cided that, in such case, In an ac- ble for any part of the rent, though tion of covenant for rent, a portion he took possession of - that part of the rent could not be recovered, which was not occupied by the other for the reason that rent is not ap- person, and though, on the lessor's portlonable in such an actioii; cit- request to him to stay and the lat- ing Stevenson V. Lambard, 2 Bast, ter's promise to obtain possession 575, ante, "note 339. ' for him at the end of a month, he 800 Laurence jf^_JE!rench, 25 Wend, stayed during such month, leaving (N. Y.) 443, 7 Hill, 519 (dictum); at the end thereof. Tunis V. Grandy, 22 Grat. (Va.) 802As to the theory of waiver in 109; Watson v. Waud, 8 Bxch. 335 such a case, see post, at notes 824, (semble). 825. 801 Sialth_K^JBarber, 96 App. Div. 803 See post, § 182 e (2) (b). 236, 89 N. Y. Supp. 317, citing so* McLoughlin v. Craig, 7 Ir. C. O'Brien v. Smith, 37 N. Y. St. Rep. L. 117; Seabrook v. Moyer, 88 Pa. 41, 13 N. Y. Supp. 408; Id., 129 N. 417. y. 620, 29 N. B. 1029, post, note 823. sob See Neale v. Mackenzie, 1 § 182 EXCLUSION OF LESSEE FROM POSSESSION. 1149 sosbut it is otherwise if his lease has expired.^o^ It has been de- cided in Ireland and^anada,^"* that possession of part of the premises, by a third person holding under an unexpired prior lease made by the same lessor, will not constitute even a partial defense to an action for the rent under the second lease, if this latter is under seal, the theory being that it then operates as a lease in possession of that part of the land of which the lessor has possession, and a lease of the reversion (concurrent lease^**^) of that part held by the prior lessee. These decisions are in ac- cord with the language of an opinion delivered in an English case, in which, however, under similar circumstances, the second lessee was relieved from liability, on the ground that the lease to him was wholly void as to the part of the premises held by the prior lessee, such lease not being under seal, and therefore in- sufficient as a lease of the reversion.*^" This view above referred to is not suggested in any of the cases decided in this country as to the liability for rent when a part or the whole of the prem- ises is in the possession of a prior lessee.s^"" In any case, it would seem, the question whether the second lease could thus be Mees. & W. 746; Lawrence v. right to retain possession owing to French, 25 Wend. (N. Y.T 4437 7 the lessors' failure to give legal no- Hill, 519; Tunis v. Grandy, 22 Grat. tice to quit, is within the rules stat- (Va.) 109; Dengler v. Michelssen, 76 ed in the text. See Goerl v. Dam- Cal. 125, 18 Pac. 138; Smith v. Bar- rauer, 27 Misc. 555, 58 N. Y. Supp. ber, 112 App. Dlv. 187, 98 N. Y. 297. S5^p. 365. soeSee ante, § 82, at notes 16, 17; In Murphy v. Farley, 124 Ala. 279, post, § 186 a (1), at note 171. 27 So. 442, it was decided that the so? See post, at note 812. defendant in an action for rent sos Ecclesiastical Com'rs of Ire- could show, under a plea of "fail- land v. O'Connor, 9 Ir. C. L. 242; ure of consideration," that another Holland v. Vanstone, 27 TJ. C. Q. B, person was occupying the premises 15. under a lease extending beyond the 809 See ante, § 146 d, at notes 24- beginnlng of the defendant's term. 27. Here the prior tenant was the hus- «io Neale v. McKenzie, 1 Mees. & band of the defendant and they W. 747. But In any jurisdiction in lived together on the premises, and which a conveyance of the reversion such facts might perhaps have jus- can be regarded as effective though tified the view that there had been not under seal (ante, § 146 e), the a surrender, by implication of law, second lease might, on this theory, of the prior term. See post, § 190 d. be upheld to its full extent, though A monthly tenant under a pre- not under seal, vlous lease by the lessor, who has a sioa See ante, note 805. 1150 DEFENSES TO RENT. § 182 regarded as operating as a lease of the reversion, for the purpose of imposing liability for rent, would be one of the construction of the language used. A lessee cannot, it has been held, set up the possession of an- other under paramount title as a defense to rent if he, on failing to obtain possession from such other, assigned his lease to the latter, since in such case his assignee is let into possession, though not he himself.^^i (2) By stranger Without right. The eases are generally to the effect that the fact that the lessee is unable to obtain possession of the premises owing to the presence of a third person wrong- fully in possession, such as a tenant holding over his term, is no defense to an action for the rent,*i- unless the lease can be con- strued as expressly so providing.*!** Perhaps in some jurisdic- tions, in view of decisions to the effect that the lessee has a right of action for damages in such case,*i* it might be held that such exclusion is an absolute bar to the claim for rent.^^^ 811 Bailey v. Wells, 8 Wis. 141, 76 Ileving the lessee from liability. Am. Dec. 233. Harris v. Greenberger, 50 App. Div. 812 Mechanics' & Trader's Fire 439, G4 N. Y. Supp. 136. Ins. Co. V. Scott, 2 Hilt. (N. Y.) 550; 8i4 See ante, § 83. Ward V. Edesheimer, 43 N. Y. St. sis There is a decision to that Rep. 138, 17 N. Y. Supp. 173; Port- effect in Kean v. Kolkschnelder, 21 man y. Weeks, 1 City Ct. R. (N. Y.) Mo. App. 538, and it is so assumed 183; McKlnney v. Holt, 8 Hun (N. in Riegpr v. Welles, 110 Mo. App. Y.) 336; Cozens v. Stevenson, 5 166, 84 S. W. 1136. There is a dic- Serg. & R. (Pa.) 421; University of tum to that effect in Smart v. AUe- Vermont v. Joslyn, 21 Vt. 52. gaert, 14 Phila. (Pa.) 179, where The lessor's right to the full rent the court apparently sees no dls- reserved is necessarily not affected tinction between an exclusion by a by the fact that the lessee agrees wrongdoer and an exclusion by one with ,a former tenant that he may having paramount title, retain possession of part without in Hatfield v. Fullerton, 24 111. paying rent. Fonda v. Lape, 29 N. 278, it was apparently decided that Y. St. Rep. 327, 8 N. Y. Supp. 792. the landlord could not distrain for &13 Where the lease provided for the rent, the lessee having been kept the payment of rent "before posses- out of possession by one apparently sion is delivered to the tenant," this without title. Here, also, no dis- was held to import an undertaking tinction is made between an exclu- by the landlord to actually give him sion by one having, and one not possession, and the latter's inability having, title. This is, perhaps, to to do so owing to the possession of be regarded as overruled by Field v. a third person was regarded as re- Herrick. 101 111. 110, where, in an § 182 EXCLUSION OF LESSEE FROM POSSESSION. 1 151 (3) By lessor. If the lessee is prevented from taking posses- sion by the lessor himself, the latter is, it is generally agreedj liable in damages to the former, as for breach of an implied cove- nant to give possession, or, by some cases, of the covenant for quiet enjoyment,®^® and this claim the lessee might ordinarily assert by way of set-off or recoupment in an action for the rent.^^^ On the question whether the lessee has the additional, or rather al- ternative, right to set up his exclusion from possession by the les- sor as a total defense to rent, the decisions are not entirely in unison. Ordinarily it has been held that such exclusion from pos- session by the lessor entirely relieves the lessee from liability for rent,*^* unless there is a provision otherwise,*!" and that the fact that he is able to obtain possession of part of the premises does not render him liable for any part of the rent, if he fails to take possession of such part, that is, that he is not bound to take a part when he i§ entitled to the whole.*^'' By some decisions, even though the lessee does take possession equitable proceeding by the lessee (Ind.) 57; Dougherty v. Wilson, 1 to cancel the lease, the court shows Blackf. (Ind.) 478; O'Brien v. that his inability to obtain posses- Smith, 37 N. Y. St. Rep. 41, 13 N. sion was due to the prior possession Y. Supp. 408 (dictum), afd., without of one holding without right and not opinion, 129 N. Y. 620, 29 N. B. 1029 ; of one having title, and implies Moore v. Guardian Trust Co., 173 that, this being the case, the les- Mo. 218, 73 S. W. 143. see cannot escape liability for rent. sio in Cronin v. Epstein, 19 N. Y. And see Gazzolo v. Chambers, 73 111. St. Rep. 806, 2 N. Y. Supp. 709, it 75. was decided, in view of a provision 818 See ante, §§ 81, 82. for the making of alterations by the 81T Judd V. Fellows, 9 App. Div. lessor, that an express requirement 203 41 N. Y. Supp. 274; O'Brien v. of the giving of possession to the Smith, 37 N. Y. St. Rep. 41, 13 N. lessee on a certain date was not Y. Supp. 408; Eldred v. Leahy, 31 imperative, so as to relieve the les- Wis. 546. See post, § 296. see from rent from that date, if the 818 McClurg V. Price, 59 Pa. 420, alterations were not then completed 98 Am. Dec. 356; Penny v. Fellner, and possession at that time was re- 6 Okl. 386, 50 Pac. 123; Reed v. Rey- fused. nolds, 37 Conn. 469; Field v. Her- 820 O'Brien v. Smith, 37 N. Y. St. rick, 10 111. App. (10 Bradw.) 591; Rep. 41, 13 N. Y. Supp. 408, afd., Hickman v. Rayl, 55 Ind. 551 (sem- without opinion, 129 N. Y. 620, 29 ble); Gamer v. Byard, 23 Ga. 289, N. B. 1029; Knox v. Hexter, 42 N. Y., 68 Am. Dec. 527 (exclusion of sub- Super. Ct. (10 Jones & S.) 10. And tenant in effect exclusion of ten- see Walker v. Tucker, 70 111. 527, ant) ; Spencer v. Burton, 5 Blackf. which is perhaps to that effect. 1152 DEFENSES TO RENT. . § 182 of part, he is, if excluded from the balance, not liable for any part of the rent or on a quantum meruit,^^^ though in other cases a different view is taken.822 There is one decision to the effect that the exclusion of the lessee by the lessor from part of the premises is no defense to an action on the covenant to pay rent, provided the lessee accepts possession of the other part, but that his only remedy in such case is by an action or counterclaim for damages.*23 Conceding that the lessee may refuse to pay rent 821 Mflgre_j-_Man sfield, 182 Mass. v. Kiso, 81 Mo. 241, it is said that 302, 65 N. E. 398, 94 Am. St. Rep. the lessee is liable only for a pro 657; McClurg v. Price, 59 Pa. 420, 98 tanto part of the rent in case he ob- Am. Dec. 356; Penny v. Fellner, 6 tains possession of part only, unless Okl. 386, 50 Pac. 123. he waives "full performance." See Where it was agreed that the les- post, at notes 824, 825. sor might retain possession of pan szs O'Brien v. Smith, 37 N. Y. St. of the premises for a few days, for Rep. 41, 13 N. Y. Supp. 408, afd., a certain purpose, and the lessee ac- without opinion, 129 N. Y. 620, 29 cordingly took possession of part N. E. 1029. The opinion of the only, and the lessor did not tnove intermediate appellate court is un- cut of the other part at the time satisfactory. It quotes from a text named, and refused to name a time book which itself cites no decision when he would do so, the lessee was in point, and also refers to two held to be entitled to relinquish the previous decisions, Vanderpool v. lease, and not to be liable for rent. Smith, 4 Abb. Dec. (N. Y.) 464, and if he immediately left the premises. Etheridge v. Osborn, 12 Wend. (N. Reed v. Reynolds, 37 Conn. 469. Y.) 529, 27 Am. Dec. 152, in the That the lessee is not liable in former of which it was decided that covenant for an apportioned part of the lessee could not defend against the rent in such case, see Holgate v. the claim for rent merely because Kay, 1 Car. & K. 341. the lessor continued to occupy a The fact that the lessor leaves building on the premises after the chattels on the premises does not beginning of the term, the lessee involve such a partial eviction or having indicated no desire to take exclusion from the premises as to possession thereof, and the latter of excuse nonpayment of rent. The which involved the right to assert lessee should, it is said, remove the in defense to rent the lessor's breach chattels and charge the expense to of his covenant to make certain im- the landlord. Baumgardner v. Con- provements. There are in both of solidated Copying Co., 44 111. App. these cases dicta to the" effect that 74. the lessor's exclusion of the lessee 822 See Hurlbut v. Post, 14 N. T. from possession, whether in whole Super. Ct. (1 Bosw.) 28; Knox v. or in part, not being an eviction, is Hexter, 42 N. T. Super. Ct. (10 no defense to a Claim for rent. But Jones & S.) 8; Eldred v. Leahy, 31 the principal case expressly says Wis. 541, 11 Am. Rep. 613. In Prior that it is a defense if the lessee § 182 EXCLUSION OF LESSEE FROM POSSESSION. 1153 in ease the lessor wrongfully excludes him from part, and he thereupon refuses to take possession of the balance, it is not en- tirely clear why the fact Miat he takes possession of the portion from which he is not excluded should preclude him from Eissert- ing the wrongful conduct of the lessor as a defense, at least in part, to the claim for rent. It is not, indeed, a case of eviction, but it is so analogous to a wrongful eAdction by the landlord that it seems that it might well have the same effect in relieving from rent. It has been asserted that the fact that the lessee takes and re- tains possession of part may justiify a finding that he "waived" his right to have possession of the balance, that is, that he may be held liable for the whole rent in such case.**^ This seems to involve the imposition on the lessee rather than on the lessor of the patalty for the lessor's wrongdoing. The theory of waiver can, it would seem, properly be applied only where there are the elements of a valid contract or of an estoppel,^^* and those are certainly not present in such a case of a taking of possession of part of the leased premises. There is not even any inconsistency between such action on the part of the lessee and his subsequent action in asserting his partial exclusion from the premises as a defense, in whole or in part, to the claim for rent. The mere fact that the lessor remains in possession of the premises after the time at which the lessee is entitled to posses- sion does not, it seems, involve any exclusion from possession takes possession of no part of the ed," that is, agreed to relinquish, premises. liis rights In the cellar in consld- 82* Prior V. Kiso, 81 Mo. 241. And eration of being allowed to use an- see dicta to that effect in Smith v. other room for storage purposes. Barber, 96 App. Div. 236, 89 N. Y. and It was held that his exclusion Supp. 317, and Moore v. Mansfield, from the cellar was no defense to a 182 Mass. 302, 65 N. E. 398, 94 Am. claim for rent The court speaks as St. Rep. 657. if the cellar was a part of the leased 825 See article by Colin P. Camp- premises, but It evidently was not. bell, Esa-, In 3 Mich. Law Rev. 9; The lessee had merely a license to 29 Am. & Bng. Bnc. Law (2d Ed.) use it, and this license he gave up 1097. by an express agreement for a con- In Cluett V. Sheppard, 131 111. 636, sideration. So there was no ques- 23 N. B. 589, the lessee of a portion tion of waiver of the right to pos- of a building was given the prlv- session of the whole premises by ilege of using the cellar for storage taking possession of part, purposes, and he thereafter "waiv- L. and Ten. 73. 1154 DEFENSES TO RENT. § 182 within the meaning of the cases previously cited, in the absence of any request for possession by the lessee. "There is no law which requires a landlord to hunt up his tenant and ask him to go into possession of the premises before he can claim the rent which his tenant has agreed to pay. It is the duty of the tenant to demand possession of the premises at the premises. ' '^^s ^jid a mere statement made by the lessor before the time for the les- see 's possession, that the latter should not have possession, is not, it would seem, to be regarded as an exclusion from possession for this purpose.*^^ b. Failure of lessee to take possession. Apart from any ques- tion of the exclusion of the lessee from the demised premises, the cases are generally to the eiifect that the mere failure of the les- see to take possession is no defense to the claim for rent, since his liability is fixed by the reservation of rent or by his covenant to pay rent, and he cannot escape this liability by failing to util- ize the premises. ^2* It has been several times said that in the 826 Millie Iron Min. Co. v. Thai- premises, although the lessee failed mann, 34 App. Div. 281, 54 N. Y. to present himself to take posses- Siipp. 276. And see Haines v. Graf sion. Mfg. Co., 13 N. Y. St. Rep. 730; 827 Millie Iron Min. Co. v. Thal- Vauderpool v. Smith, 4 Abb. Dec. man, 34 App. Div. 281, 54 N. Y. (N. Y.) 461. But in Spencer v. Bur- Supp. 276. Contra, Samuel v. Rob- ton, 5 Blackf. (Ind.) 57, it is said erts, 27 Misc. 296, 58 N. Y. Supp. 765. that the lessee is relieved if the les- sas Anonymous, 4 Leon. 17 ; Bel- sor "fails" to give possession; and lasis v. BuTbick, 1 Salk. 209; Levi see Hickman v. Rayl, 55 Ind. 551, v. Lewis, 6 C. B. (N. S.) 766; Stier which is perhaps to that effect, v. Surget, 18 Miss. (10 Smedes & though extremely obscure. M.) 154; Douglass v. Branch Bank, In Fitzhugh v. Baird, 134 Cal. 570, 19 Ala. 659, 54 Am. Dec. 207; Tully 66 Pac. 723, it is said that the les- v. Dunn, 42 Ala. 262, 94 Am. Dec. see who failed to take possession is 646; Marix v. Stevens, 10 Colo. 261, not entitled to a reduction of rent 15 Pac. 350; Union Pac. R. Co. v. because the lessor occupied the Chicago, R. I. & P. R. Co., 164 111. premises a part of the time, when 88, 45 N. E. 488; Gilhooley v. Wash- such occupancy was for the pur- Ington, 4 N. Y. (4 Comst.) 217; Be- pose of protecting the property, is car v. Flues, 64 N. Y. 518; Weston not shown to have been profitable to v. Ryley, 15 Misc. 638, 37 N. Y. him, and there was no claim for re- Supp. 216; Brown v. Cairns, 107 coupment. This would seem to Iowa, 727, 77 N. W. 478; McGlynn v. imply that in some cases the lessor Brock, 111 Mass. 219; Outtoun v. would lose part of his rent merely Dulin, 72 Md. 536, 20 Atl. 134; May- because he failed to abandon the er v. 'Lawrence, 58 111. App. 194; § 182 INVALIDITY OF LEASE. 1155 case of a tenancy at will the rule is different, and that the tenant is not liable for rent unless he takes possession.^^s it does not clearly appear, however, why a lessee at will, if he enters into a stipulation for rent, should thus be able to relieve himself from liability. He would seem to stand in this regard in the same posi- tion as any other lessee, and the fact that he might, at common law, by notice and relinquishment of the possession taken by him, relieve himself from liability for all subsequent installments of rent, except that next due,^^^* is not, it is conceived, a reason for allowing him to relieve himself from all liability by taking no action whatever. Though, as above stated, an entry by the lessee is not neces- sary to impose liability on him for rent, the fact that he has not entered may be material in this connection as showing that he has not accepted the lease, and therefore should not be made liable by reason of the provisions thereof. If, however, he executed the lease, or has paid rent or taxes in pursuance of provisions therein, or has otherwise indicated his acceptance of it, his failure to take possession is immaterial.*^** c. Invalidity of lease. Although a lease is absolutely void, the lessee, if he goes into possession, is ordinarilj'^ liable for the amount of the rent reserved, either in an action for use and oc- cupation, or by reason of the inference of an intention that he shall hold as a periodic tenant at the rent named.^^i In some cases of invalidity, however, the lessee has been regarded as free Birckhead v. Cummins, 33 N. J. to the lease; citing Bac. Abr., Lease Law, 44; Oregonlan R. Co. v. Ore- (M), and Miller v. Green, 8 Bing. gon R. & Nav. Co., 27 Fed. 277; 92. But this is so only if his as- Moore v. Dove, 1 Hayw. & H. 161, sent is not otherwise shown. The Fed. Cas. No. 9,757. case of Miller v. Green, 8 Bing. 92, 829Bellasls v. Burbrick, 1 Salk. deciding that a lease by indenture is 209, Holt. 199, 1 Ld. Raym. 170; not effective as against a subse- Anonymous, 1 Vent. 41; Jeakill v. quent conveyance until entry by Linne, Het. 54; Anonymous, Dal. the lessee, seems most questionable 44; Hardy v. Winter, 38 Mo. 106. (See ante, § 37). It is, it may be 82on See ante, at note 374. remarked, apparently cited in none 830 See ante, § 32, at notes 606, of the leading English textbooks 607; § 53 b, at note 53. on the subject so far as this point In Pendergast v. Young, 21 N. H. is concerned. 234, it is said that entry by the les- ssi See ante, § 13 a (2), at notes see' is necessary to show his assent 373-378; § 25 g (1) (4). 1156 DEFENSES, TO RENT. § 182 from liability even though he entered into possession.**^ if the lease is voidable, rather than void, as when the lessor was guilty of fraud, the lessee is liable for the rent unless he relinquishes possession and obtains a rescission of the lease, or its equivalent.*** The effect of various possible vices and defects in a lease, upon the liability for rent of one claiming thereunder, has been con- sidered in connection with the discussion of the particular class of vice or defect, and it is not possible to deduce from the cases a uniform rule in regard thereto.®** d. Defect in lessor's title. As before stated,**^ the tenant cannot refuse to pay rent upon the ground that the lessor, at the time of the demise, had no title to the land. This is ordinarily based upon the theory of estoppel, though it might rather, it seems, be based upon the theory that the rent, being payable in return for the possession or opportunity for possession of the land, the tenant, so long as he has such possession or the opportunity for possession by virtue of the landlord's act, should not be al- lowed to repudiate his stipulations as to the payment of rent merely because of such defect in title. The tenant is not precluded from showing that the person as- serting the claim for rent is not the person entitled thereto, for the reason that the title to the reversion or to the rent is in an- other person.**^ And, according to occasional decisions, and quite numerous dicta, the tenant may show that, though the lessor had an estate in the land at the date of the lease, this estate was so limited in duration that it expired before the installment or in- stallments of rent in question became due.**'' As before stated,*** the courts are not in unison as to whether 832 As in the case of a lease made lease to insane person, see ante, § on Sunday (ante, § 35), or of a lease 21 c (2) ; ultra vires lease by or to made for an illegal purpose (ante, § corporation, see ante, § 21 d (2); 40). The fact that the lease was lease invalid under statute of for a longer period than the stat- frauds, see ante, § 25 g (4); effect ute allowed (ante, § 12 c (1) ) has of insufficiency of description, see also been assumed to constitute a ante, § 26 c (1) ; effect of nonexecu- defense to the claim for rent. Odell tion by lessor, see ante, § 53 a. V. Durant, 62 N. Y. 524. sss See ante, § 78 c (3). 833 See ante, § 38. ssc See ante, § 78 n, o. 834 As to lease by or to married ss? See ante, § 78 p (3). woman, see ante, § 21 a (1) (d), b; sas See ante, § 19 b (4). lease to infant, see ante, § 21 b (2; § 182 EVICTION. 1157 one may, by taking a lease from or attorning to two or more per- sons, the title of one of whom at least is defective, become liable for rent to each. e. Eviction of tenant — (1) By landlord— (a) Total eviction. Am eviction of the tenant by the landlord, the nature of which is elsewhere diseussed,'*^^ has the effect of suspending the tenant's liability for rent thereafter to become due.**" It has been suggested in one case that there might be a right in the landlord to recover in use and occupation for the part of the rent period during which he enjoyed the premises prior to the eviction,'^*! but such a view camaot, it would seem, be sus- tained even when the eviction is by title paramount,**^ and a for- tiori is it incorrect when applied to the case of an eviction by the landlord.8*3 The eviction, it is to be noticed, does not absolutely terminate the liability for rent, as it does not terminate the tenancy,*** but it merely relieves the tenant from liability for such rent as may, by the terras of the lease, become due while the tenant remains out of possession as a result of the eviction.**^ The tenant is free from liability for the rent becoming due between the time of the eviction and his restoration to possession, even though the landlord does not himself retain the possession.*'''^ Not infre- 839 See post, chapter XVII. s*^ That there is no such right of 840 Upton V. Townend, 17 C. B. recovery in use and occupation is 30; Wright v. Lattin, 38 111. 293; decided, -without discussion, in Co- Engstrom v. Tyler, 46 Kan. 317, 26 lumbia Bank v. Galloway, 1 Cranch, Pac. 735; Royce v. Guggenheim, 106 C. C. 353, 2 Fed. Cas. No. 868; and Mass. 201, 8 Am. Rep. 822; Osmers v. Christopher v. Austin, 11 N. Y. (1 Furey, 32 Mont. 581, 81 Pac. 345; Kern.) 216, is to this effect. See, Matthews v. Tobener, 39 Mo. 115; also, post, note 859. Bennet v. Blttle, 4 Rawle (Pa.) 339; s44See post, § 185 h. Poston V. Jones, 37 N. C. (2 Ired. s45 Tiley v. Moyers, 43 Pa. 404; Eq.) 350, 38 Am. Dec. 683. And Smith v. McEnany, 170 Mass. 26, practically all the cases cited post, 48 N. E. 781, 64 Am. St. Rep. 272; § 185, support the same proposition. Mackubin v. Whetchaft, 4 Har. & 8«Fitchburg Cotton Mfg. Co. v. McH. (Md.) 135; Holmes v. Guion, MelvenTlS^ass. 268. The case in- 44 Mo. 164 (semble); Day v. Wat- volvef an" eviction by title para- son, 8 Mich. 535; Co. Litt. 319 a. mount, but the language is broad s4e Cibel v. Hill, 1 Leon. 110; Ben- enough to cover the case of an evic- nett v. Bittle, 4 Rawle (Pa.) 339. tion by the landlord. See Lewis v. Payn, 4 Wend. (N. Y.) «42See post, § 182 e (2).(;. ,}\ 423. 1158 DEFENSES TO RENT. § 182 quently the courts speak as if the eviction absolutely terminated the liability for rent, and this is ordinarily the actual result thereof, there being no resumption of possession by the tenaat. While it is uniformly recognized that an eviction does not re- lieve from liability for rent which is already due, ij the rent is not payable in advance,*'*^ there are a number of decisions to the effect that, if the rent is payable in advance, the tenant is re- lieved from liability therefor in case an eviction occurs during the rent period, that is, after the rent is duej** There are^ how- ever, decisions to the contrary, that he is not so relieved,^*^ and it S17 Page V. Parr, Styles, 432; Giles whether the rent Is payable in ad- V. Comstock, 4 N. Y. (4 Comst.) 270, vance or at the end of the term." 53 Am. Dec: 374; McCarty v. Hud- And see Hyman v. Jockey Club sons, 24 Wend. (N. Y.) 291; Hen- Wine, Liquor & Cigar Co., 9 Colo, ning V. Savage, 51 Misc. 609, 100 N. App. 299, 48 Pac. 671, where it Y. Siipp. 1015; Cole v. Sanford, 77 is said: "It is true that the rent Hun, 198, 28 N. Y. Supp. 353; Mar- tor the month was payable in ad- tin V. Martin, 7 Md. 368, 61 Am. Dec. vance February 1st and the eviction 364; Livingston v. L'Engle, 27 Fla. occurred February 2nd; but, as 502, 8 So. 728; TIley v. Moyers, 43 there was no use of the premises by Pa. 404; Klinker v. Guggenheimer, the tenant by reason of the eviction, 43 Misc. 393, 87 N. Y. Supp. 474; the jury may technically have erred Schusler v. Ames, 16 Ala. 73, 50 in finding no rent due on February Am. Dec. 168. 1st. But the error is harmless. If Sis See The Richmond v. Cake, 1 the month's rent had been paid, it App. D. C. 447; Sutton v. Goodman, could have been recovered back by 194 Mass. 389, 80 N. E. 60S; Hall v. the tenant by reason of the eviction. Joseph Middleby, 197 Mass. 485, 83 So the result would have been the N. E. 1114. In Bass v. Rollins, 63 same." Minn. 226, 65 N. W. 348, it is said in Wreford v. Kenrick, 107 Mich, that the lessor can, in case of evic- 339, 65 N. W. 234, it was decided tion, recover only a part of the rent that the landlord could not, owing apportioned up to the time of evic- to a subsequent eviction, recover tion. The so-called eviction was a rent payable in advance. There failure to heat the premises. That was not, however, it seems, an evic- there can be no such apportionment, tion in this case, but merely an as- see Hall v. Joseph Middleby, 197 se rtion by the landlord of the right, Mass. 485, 83 N. B. 1114, supra, and expressly given by the lease, to term- ante, § 176 a. inate the tenancy. In Alger v. Kennedy, 49 Vt. 109, sjo Ryerse v. Lyons, 22 U. C. Q. B. 24 Am. Rep. 117, a case of construe- 12; Giles v. Comstock, 4 N. Y. (4 tive eviction, it is said that "when Comst.) 270, 53 Am. Dec. 374: Hun- the tenant lawfully ceases to occupy, ter v^_ReiIey, 43 N. J. Law, 480 ; be is discharged from his obligation gteiTTv. Ric^^FT5nsc."348, 51 N. Y. to pay accruing rent. This is so Supp. 320; Johnson v. Barg, 8 Misc. §182 EVICTION. 1159 is diificult to comprehend how, after the tenant has, by the terms of the lease, become absolutely liable for an installment of rent, he caa be relieved from such liability by a subsequent occurrence. In most jurisdictions the tenant could, in an action for the rent so payable in advance, set up a claim for damages on account ot the eviction by way of set-off, and so in effect make the eviction a defense to the landlord's claim.^so There are occasional decisions or dicta to the effect that, if the rent is payable in advance, and the tenant so pays it, he may, upon his eviction during the period for which the rent is paid, recover the sum so paid.^^^ These are, perhaps, to be regarded as based on the theory of a "failure of consideration." But the applicability of such a theory, as a ground for the recovery of a paymejit voluntarily made on account of rent, seems questionable, since the consideration for the contract to pay rent, consisting of the execution of the lease, is executed and not executory. A more satisfactory mode of adjusting the rights of the parties, it is con- ceived, would be to consider the advance payment in determin- ing the damages recoverable for the eviction. If the tenant pays rent before it becomes due, and he is sub- sequently, but before the rent is due, evicted by the landlord, he may, it would seem, recover the money so paid, as money lent or as money had and received, such payment being properly merely an advance, to' be applied on the rent when it becomes due.*^^ In case the tenant gives a note or separate agreement for rent to become due in the future, and he is thereafter evicted before the obligation becomes due, he may, it seems, obtain relief in equity against his legal obligation.*^^ 307. 28 N. Y. Supp. 728; Sheehan v. 48 Pac. 671; Alger v. Kennedy, 49 CojMe, 36 Misc. 766, 74 N. Y. Supp. Vt. 109, 24 Am. Rep. 117; Mallette v. 847; Gugel v. Isaacs, 21 App. Div. Hillyard, 117 Ga. 423, 43 S. B. 779; 503, 48 N. Y. Supp. 594. Giles v. Bass v. Rollins, 63 Minn. 226, 65 N. Comstock, supra, was a case of evlc- W. 348. tlon by title paramount, but the In Breck v. Biddle, 19 Kan. 550, court expresses the rule so broadly it is decided that if the tenant pays as to apply also in case of an evio- rent in advance by making improve- tion by the landlord. ments, as agreed, he has no lien for 850 See post, § 296, at notes 146- the value thereof. 150. 855 See ante, § 177 c. 1 - ' ' ' ssiHyman v. Jockey Club Wine, sbs See Poston v. Jones, 37 N. C. Liquor & Cigar Co., 9 Colo. App. 299, (2 Ired. Bq.) 850, 38 Am. Dec. 683. 1160 DEFENSES TO RENT. § 182 The question of what constitutes an eviction by the landlord, for the purpose of defense to an action for rent, has been the sub- ject of a large niunber of decisions, and the courts of some states have gone. extremely far in regarding particular acts on the part of the landlord, and even a failure on his part to act, as sufficient for this purpose. The cases bearing on the subject are subse- quently considered.*^* (b) Partial eviction. In case of an eviction of the tenant by the landlord, not from the whole, but from a part only, of the prem- ises, a "partial eviction," the tenant is relieved from the whole rent so long as he is kept out of possession of sueh part, the same rule applyiug as when he is evicted from the entire premises.*^^ Nor does he, by paying some part of the rent thereaf tei" becoming due, lose his right to refuse to pay the residue,*^® The theory on which the landlord is thus deprived of the entire rent, although he evicts the tenant from part only of the premises, is that the landlord should not be allowed, by his wrongful act in disposses- sing the tenant of part of the premises, to change the contract made between himself and the tenant, which contemplated the payment of rent for the premises as a whole only. This is the This was actually a case of exclu- 293; Smith v. Wise, 58 111. 141; sion of the lessee from possession Frepons v. Grostein, 12 Idaho, 671, by one having possession under par- 87 Pac. 1004; Skaggs v. Emerson, 50 amount title, hut the court -would no Cal. 3; Edmison v. Lowry, 3 S. D. doubt have applied the same prin- 77, 52 N. W. 583, 17 L,, R. A. 27S, 44 ciple in a case of actual eviction. Am. St. Rep, 774; Sirey v. Braeme, In Anderson v. Tighe, 57 Tenn. 65 App. DIv. 472, 72 N. T. Supp. (10 Heisk.) 299, the persons en- 1044; Perniciaro v. Veniero, 9 N. Y. titled to the land having forbidden Supp. 369; Graham v. Anderson, 3 the lessee to make use of it, a court Har. (Del.) 364; Vaughan v. Blan- of equity rescinded the lease and en- chard, 1 Yeates (Pa.) 175; Kessler joined the collection of notes given v. McConachy, 1 Rawie (Pa.) 441; for the rent. Unton v. Hart, 25 Pa. 193, 64 Am. S64 See post, § 185, Dec. 691; New York Dry Goods 855 Co. Litt. 148 b; Gilbert, Rents, Store v. Pabst Brew. Co., 50 C. C. 173; Morrison v. Chadwick, 7 C. B. A. 295, 112 Fed. 381; Briggs v. Hall, 266; Christopher v. Austin, 11 N. 4 Leigh (Va.) 484, 26 Am. Dec. 326; Y. (1 Kern.) 216; Colbum v. Mor- Okie v. Person, 23 App. D. C. 170. rill, 117 Mass. 262, 19 Am. Rep. 415; 856 Morris v. Kettle, 57 N. J. Law, Smith V. McEnany, 170 Mass. 26, 48 218, 30 Atl. 879; Buffalo Stone & Ce- N. E. 781, 64 Am. St. Rep. 272; Mor- ment Co. v. Radsky, 14 N. Y, St. ris V. Kettle, 57 N. J. Law, 218, 30 Rep. 82. Atl. 879; Wright v. Lattin, 38 lU. § 182 EVICTION. 1161 gist of the expressions on the subject, though it is expressed in different "ways. It is sometimes said, for instance, that the land- lord cannot "apportion his own wrong." In Alabama alone, ap- parently, is it the law that the tenant, remaining in possession oi" the part from which he is not evicted, is liable for a proportionate part of the rent. There it has been decided that, if he desires to relieve himself from the entire liability, he must relinquish pos- session of the entire premises.^^^ In Illinois it has been decided that if the tenant retains possession of part of the premises, and thereafter gives a note for the rent, the note will be valid as based on a moral consideration.^^^ Probably such a view would not be adopted in most jurisdictions. The cases previously cited, to the effect that the lessor cannot^ if he evicts the tenant from part of the premises, recover any part of the rent, in effect recognize that he cannot recover in use and occupation for his partial enjoyment of the premises. There are a few cases in which this is expressly asserted.*^* The rule forbidding apportionment of rent on a partial evic- tion by the landlord was established before the theory of "con- structive" evictions^®" was developed, and the cases in which it has been applied appear to have almost invariably involved an "actual" eviction. The question seems never to have been dis- ciisstd whether it would be applied in case the landlord is guilty of not an actual eviction, but merely of acts which would justify the tenant in abandoning possession, and the tenant abandons merely part of the premises. It is ordinarily stated that the ten- ant cannot assert an eviction, a "constructive" eviction, on ac- count of such acts, unless he relinquishes possession,88o , ^nd this would seem to mean a relinquishment of the possession, not of part of the premises, but of the whole. But the rule now under 857 Warren v. Wagner, 75 Ala. 188,_ Christopher v. Austin, 1 N. Y. (1 51 Am. Bep. 446; Crossthwaite v. Kern.) 216. See remark of Parke, Caldwell, 106 Ala. 275, 18 So. 47; B., In Reeve v. Bird, 1 Cromp. M. & Anderson v. Wlnton, 136 Ala. 422, ^4 R. 36, disapproving the nisi prius go 962. ' case of Stokes v. Cooper, 3 Camp. 858 Anderson v. Chicago Marine 514, note, contra. And see Fuller v. & Fire Ins. Co., 21 111. 601. Ruby, 76 Mass. (10 Gray) 285. 85B Morris v. Kettle, 57 N. J. Law, 859a gee post, § 185 a. 218, 30 Atl. 879; Brlggs v. Hall, 4 seo See post, § 185 d. Leigh (Va.) 484, 26 Am. Dec. 326; 1162 DEFENSES TO RENT. § 182 discussion would make such acts, if followed by an actual aban- donment of part of the premises, sufficient as a defense to the entire rent, as effecting a partial eviction. For instance, if the landlord interferes with the tenant's enjoyment of the premises as a whole, as by obstructing the access thereto, tha tenant might abandon a small part of the premises and assert an eviction from such part, exempting him entirely from liability for rent, while retaining possession and making use of a considerable part of the premises. It might perhaps be considered, in such case, that the fact that the tenant retains possession of part of the premises, the enjoyment of which is as greatly affected by the landlord's acts as is the part which Jie abandons, is evidence to show that his partial abandonment is not in consequence of the landlord's acts, but merely a device to avoid payment of rent, and thfit con- sequently he should be held liable for the whole rent. In one case it seems to have been considered that the fact that certains rooms in a house on the leased premises were made uninhabitable by the landlord's construction of a building on the premises, in such a way as to prevent the passage of light to such rooms, justi- fied the lessee in abandoning such rooms and refusing to pay any rent whatever, although apparently retainiiig possession of the balance of the house,*,®i In this case, however, there was an actual eviction as to part of the leased premises by reason of the construction of the new building on such part^ The nile that the eviction of a tenant by his landlord sus- pends liability for rent to become due does not apply except to rent payable on account of the land which the tenant holds of that landlord, and if a landlord transfers the reversion in but a part of the land, or if he transfers that in different parts to 861 Royce V. Guggenheim, 106 Grostein, 12 Idaho, 671, 87 Pac. 1004, Mass. 201, 8 Am. Rep. 322. The 8 L,, R. A. (N. S.) 903, where it ap- head note states that the tenant pears that the tenant entirely aband- entirely abandoned the premises, oned possession. There is nothing in the opinion to In Osmers v. Purey, 32 Mont. 581, show this, and the statement that 81 Pac. 345, the tenant was, by the the particular rooms were aband- action of the landlord in making oned would rather raise an infer- alterations in part of the premises, ence that the balance of the house "actually evicted from a part of the was not abandoned. This case Is premises, and constructively from cited and applied in Frepons v. the rest, and was at liberty to § 182 EVICTION. 1163 different persons, the rent being thereby apportioned,**'^ tJig rent payable to one of such reversioners is not suspended by the fact that the tenant is evicted by another reversioner.*^' (2) By paramount title — (a) Total eviction. If the tenant is evicted from the entire premises by one having paramount title, the tenant 's liability for rent under the demise comes to an end,*®* and though he may by attornment or otherwise assume such re- lations to the paramount owner as to become liable to the same amount, this liability is under a different demise and for a differ- ent rent.**® Thus, if a mortgage prior to the lease is foreclosed, and the purchaser takes possession, or the tenant attorns to him, the former landlord cannot recover for rent becoming due there- after, nor can the purchaser properly recover rent under the former lease;*®® and the case is the same if possession is take.n by a purchaser at sheriff's sale under a judgment prior to the lease.*®'' The mere existence of a paramount title, without any eviction thereunder, is no defense to rent.*®* It is but rarely that the right of the same landlord to the rent will be revived after an eviction by paramount title, though this will occur, it seems, if the eviction is by one claiming under a liei) abandon possession, and thus be dis- E. 577, 11 L. R. A. 839; Banders v. charged from any obligation to pay Fletcher, 11 Serg. & R. (Pa.) 419; rent for the remainder of the term." George v. , Putney, 58 Mass. (4 862 See ante, § 175 b. Cush.) 351, 50 Am. Dec. 788; Adams 863 Reed V. Ward, 22 Pa. 144; Lin- v. Bigelow, 128 Mass. 365; Friend v. ton V. Hart, 25 Pa. 193, 64 Am. Dec. Oil Well Supply Co., 165 Pa. 652, 30 691; Gribbie v. Toms, 70 N. J. Law, Atl. 1134; Maxwell v. Urban, 22 Tex. 522, 57 Atl. 144; Id., 71 N. J. Law, Civ. App. 565, 55 S. W. 1124. 338, 59 Atl. 1117. And it is imma- S65 See ante, §§ 19 c, 73 a (4). terial in this regard that the rever- see See ante, § 73 a (5), c. sioner effecting the eviction was ad- se? See Day v. Austin, Cro. Eliz. vised to do so by the reversioner as- 398; Martin v. Martin, 7 Md. 368, serting the claim for rent. Reed v. 61 Am. Dec. 364. Ward, 22 Pa. 144. ses pickett v. Ferguson, 45 Ark. 864 Cuthbertson v. Irving, 4 Hurl. 177, 55 .Im. Rep. 545; Hayes v. Ferg- & N. 742; Wheelock v. Warschauer, uson, 83 Tenn. (15 Lea) 1, 54 Am. 34 Cal. 265; Home Life Ins. Co. v. Rep. 398; Hochenauer v. Hilderbrant, Sherman, 46 N. Y. 370; Moftatt v. 6 Colo. App. 199, 40Pac. 470; Rick- Strong, 22 N. Y. Super. Ct. (9 etts v. Garrett, 11 Ala. 806; Home Bosw.) 57; In re Arkell Pub. Co., 29 Life Ins. Co. v. Sherman, 46 N. Y. Misc. 145, 60 N. Y. Supp. 832; Leo- 370 ; Russell v. Fabyan, 27 N. H. pold v. Judson, 75 111. 536; Stubb- 529. See ante, § 78 c (3). ings V. Evanstown, 136 111. 37, 26 N. 1164 DEFENSES TO RENT. § 182 prior to the lease, and the landlord re-establishes his title by a re- demption within the statutory time.^*^ An eviction by title paramount, like an eviction by the land- lord,^^" does not affect the tenant's liability for rent which became due before the eviction occurred, since such rent was fully earned.*^! And this would seem to be properly the case even though the rent is payable in advance, and the eviction takes place before the end of the period for which it is payable,'*^'' though there are authorities to the contrary.*''' There are cases suggesting that, upon an eviction by paramount title, the landlord may recover on a quantum meruit for the value of the occupancy of the premises since the last rent paymenl;.*^* Such a view is ignored in the numerous decisions that there is no right of recovery for rent in case of a total eviction by title paramoimt,*^^ as well as in those that, in case of a partial eviction 869 See Russell v. Fabyan, 27 N. H. eviction on the next day would not 529, 28 N. ll. 543, 61 Am." Dec. 629. liave been a defense. S70 See ante, at note 847. sts See cases cited ante, note 848, 8712 Rolls, Abr., Rent (0); Bayn- with reference to an eviction by the ton V. Bobbet, 2 Vent. 68; Grobham landlord after the rent payable in V. Thornborough, Hob. 82; Fitch- advance is due. It seems that the burg Cotton Manufactory Corp. v. same principle must apply whether Melven, 15 Mass. 268; Giles v. Com- the eviction is by the landlord or stock, 4 N. Y. (4 Gomst.) 270, 53 under title paramount. Am. Dec. 374; Boodle v. Cambell, 7 st4 See Fitehburg Cottmi Manu- Man. & G. 386; Pepper V. Rowley, 73 factory Corp. v. Melven, 15 Mass. 111. 262. So a landlord can recover 268. In Wheeler v. Shed, 1 D. Chip, all rent which may become due (Vt.) 208, a nisi prius case, in an prior to a foreclosure sale under a action for use and occupation mortgage prior to the lease. Mason against a tenant who had been evict- s'. Lenderoth, 88 App. Div. 381, 84 N. ed by title paramount, it was left T. Supp. 740. to the jury to find whether the use of 8T2 Giles v. Comstock, 4 N. Y. (4 the premises for the part of the rent Comst.) 270, 53 Am. Dec. 374. See period previous to the eviction was ante, note 849. In Smith v. Shep- beneficial to the defendant, and to ard, 32 Mass. (15 Pick.) 147, 25 Am. find its value. The riglit to main- Dec. 432, it was decided that as the tain the action does not appear to temant had the whole of the first have been brought in question, and day of the quarter in which to pay the verdict was for the defendant rent payable in advance, an eviction See Nicholson v. Munigle, 88 Ma8i> on that day was a defense to a claim (6 Allen) 215. for the rent, since it was not after bts See ante, note 864. the rent was due, implying that an § 182 EVICTION. 1 165 by such title, the rent is apportioned as to amount,*^** and its adop- tion would seem to render practically nugatory the rule for- bidding apportionment of rent as to time.^'^^ There are occasional decisions adverse to any such right of recovery in case of evic- t^ion.*'* The rule that eviction by paramount title is a defense to the claim for rent has been decided to be applicable, even though the eviction results from a breach by the lessee of his own covenants, as when a sublessee violates a covenant of his lease as to the use of the premises, and the chief landlord re-enters because such forbidden iise is also in violation of a covenant in the original lease.8^* As elsewhere stated,**" there is no such thing as an eviction, in a legal sense, by a third person not acting under the authority of, or by consent of, the landlord, unless he has paramount title, and consequently a dispossession by such a person does not affect the tenant 's liability for rent.**^ (b) Partial eviction. If the eviction under paramount title is partial merely, the rent is apportioned, and the tenant is re- lieved from liability only for an amount proportioned to the value of the part of the premises of which he retains posses- sion,**2 the rule being thus different when the partial eviction is under paramount title from that which applies when it is by the landlord. It has in New York been held that, in the case of a lease of land, together with certain water rights, there is a partial evic- 876 See post, note 882. 350, 38 Am. Dec. 683; Lawrence v 877 See ante, § 176 a. French, 25 Wend. (N. Y.) 445; s7sSee Nicholson v. Munigle, 88 Christopher v. Austin, 11 N. Y. (1 Mass. (6 Allen) 215; Fuller v. Kern.) 216; Tunis v. Grandy, 22 Swett, 88 Mass. (6 Allen) 219, note. Grat.'(Va.) 109; Mayor of Swansea 879 Home Life Ins. Co. V. Shgrjnan, v. Thomas, 10 Q. B. Div. 48; Co. 46 N. Y. 370. Litt. 148 b. 880 See post, § 184. In one case it is said that in case 881 See ante, § 182 a (2). of a partial eviction hy paramount 882 Halligan v. Wade, 21 111. 470, title, the tenant may, by giving up 74 Am. Dec. 108; Fillebrown v. the whole of the premises, relieve Hoar, 124 Mass. 580; Carter v. Burr, himself from the entire rent. See 39 Barb. (N. Y.) 59; Cheairs v. Seabrook v. Mojer, 88 Pa. 417. Coats, 77 Miss. 846, 28 So. 728, 50 L. Such .a view evidently does not ac- R. A. Ill, 78 Am. St. Rep. 546; Pos- cord with the cases above cited, ton V. Jones, 37 N. C. (2 Ired. Eq.) 1166 DEFENSES TO RENT. § 182 tion of the tenant, if he is deprived by paramount title of the water rights in question, though retaining the land, and that the rent is to be apportioned in such case.*** This is perhaps in accord with the statement in an old case that, upoa the demise of a barn and of tithes, "though the rent is only issuing out of the barn in point of remedy, yet it is issuing out of both, • * * in point of render.""** f. Merger. As elsewhere stated,**' the tenancy may be termi- aated in whole or in part by the merger of the leasehold in the reversion, and the effect of this is to terminate the liability for rent, either wholly or in proportion to the extent of the mer- ger.**® "Whether the right to rent will be extinguished by the merger of the leasehold in the reversion, if the rent has pre- viously become separated from the reversion, does not appear to have been decided, but it seems that, if a landlord transfers to a third person the reversion without the rent, or the rent without the reversion, and the leasehold is thereafter merged in the rever- 885 Blair v. Clax'ton, 18 N. Y. 529; the leasehold to the reversioner and, Carter v. Burr, 39 Barb. (N. Y.) 59. presumably, conveyed it to the lat- ssi Doubitofte v. Curteene, Cro. ter, he remained liable for the rent Jac. 452. See Gardiner v. William- "under the peculiar circumstances of son, 2 Barn. & Adol. 336, per Parke, the case," where "from the very J., quoting with approval Saunders' nature of the transaction the lia- argument in Dean & Chapter of blllty of the estate for the rent was Windsor v. Cover. 2 Wms. Saund. recognized." The opinion does not 303, based on Doubitofte v. Curteene, clearly specify what circumstances supra. differentiated this from other cases 885 See ante, § 12 g (2). of merger. 886 Otis V. McMillan, 70 Ala. 46; There are, in Pennsylvania, a Higgins V. California Petroleum & number of decisions as to the ex- Asphalt Co., 109 Cal. 304, 41 Pac. tinguishment of a rent reserved on 1087; Liebschutz v. Moore, 70 Ind. a conveyance in fee by reason of its 142, 36 Am. Rep. 182; Casey v. "Greg- becoming vested in the person who ory, 52 Ky. (13 B. Mon.) 505, 56 Am. owns the land. See Philips v. Dec. 581; Matter of Eddy, 10 Abb. Clarkson, 3 Yeates (Pa.) 124; Pen- N. C. (N. Y.) 396;.Mixon V. Coffield, ington v. Coats, 6 Whart. (Pa.) 24 N. C. (2 Ired. Law) 301; Nellis 277; Charnley v. Hansbury, 13 Pa. V. Lathrop, 22 Wend. (N. Y.) 121, 16; Wilson v. Gibbs, 28 Pa. 151; Mc- 34 Am. Dec. 285; Sutlift v. Atwood, Quigg v. Morton, 39 Pa. 31; Cook v. 15 Ohio St. 186; Jones v. Rose, 96 Brightly, 46 Pa. 439; Wasserman v. Md. 483, 54 Atl. 69. Carroll, 2 Pa. Super. Ct. 551. See, But in Pate v. Oliver, 104 N. C. also, Millard v. McMullin, 68 N. Y. 458, 10 S. E. 709, it was decided that 345; Sheehan v. Hamilton, 4 Abb. where the executor of a lessee sold Dec. (N. Y.) 211. I 182 SURRENDER. ] 167 sion as a result of their passing to one person, the right of the third person to rent remains unaffected, in accordance with the general I'ule that a merger, like a surrender, does not operate to the prejudice of a third person not a party to the acts produc- ing the merger.**'' And if the landlord, in conveying the rever- sion to the tenant, reserves the right to rent, the tenant, it seeras, remains liable therefor, though the leasehold itself is merged.*** The merger of the leasehold in the reversion obviously does not affect the liability of the tenant for rent already accrued.**^ Tf the reversion on a sublease is merged in the original rever- sion, the sublessee 's liability for rent is, by the rule of the English decisions, terminated, the same principle applying as in the case of the surrender of the subreversion.*®" How far this principle would be applied in this country seems doubtful.*®^ It could in any case not apply to rent already accrued under the sub- lease.*®^ g. Surrender. Since, upon a surrender by the tenant of his interest under the lease, the tenancy comes to an end, and there is no longer any outstanding leasehold interest from which the rent can issue,*®-"* the right to rent subsequently to become due is thereby extinguished.*"* This is true, however, only as regards 887 See 3 Preston, Conveyancing, 20 So. 54; Amory v. Kannoflsky, 117 448, and post, § 191 b. Mass. 351, 19 Am. Rep. 416; Schulen- 888 Zeysing v. Welboum, 42 Mo. berg v. Uffelmann, 106 Mich. 453, 64 App. 352. N. W. 460; Kleman v. Germain, 61 889 Johnson v. Muzzy, 42 Vt. 708, Miss. 498; Minneapolis Co-Operative 1 Am. Hep. 365. Co. v. Williamson, 51 Minn. 53, 52 asoThre'r v. Barton, Moore, 94; N. W. 986, 38 Am. St. Rep. 473; Webb V. Russell, 3 Term R. 393. Davis v. George, 67 N. • H. 393, 39 891 See ante, § 12 g (11), at notes Atl. 979; Underhill v. Collins, 132. 337-342a. N. Y. 269, 30 N. B. 576; Everett v. 892 To-wnsend v. Read, 13 Daly (N. Williamson, 107 N. C. 204, 12 S. E. 187, Y.) 198. 22 Am. St. Rep. 870; Elliott v. Aiken, 893 See post, § 191. 45 N. H. 30; Pratt v. H. M. Richards 894 American Bonding Co. v. Pueb- Jewelry Co., 69 Pa. 53, 8 Am. Rep. lo Inv. Co. (CCA.) 150 Fed. 17, 9 L. 212; Imler v. Baenish, 74 Wis. 567, R. A. (N. S.) 557; Terstegge v. First 43 N. W. 490; West Concord Mill. Co. German Mut. Benevolent Soc, 92 Ind. v. Hosmer, 129 Wis. 8, 107 N. W. 12, 82, 47 Am. Rep. 135; Dills v. Stobie, 116 Am. St. Rep. 931. The cases 81 111. 202; Armour Packing Co. v. cited post, chapter XVIII, are to the Des Moines Pork Co., 116 Iowa, 723, same effect. 89 N. W. 196, 93 Am. St. Rep. 270; In Miller v. Dennis, 68 N. J. Law, Morgan v. McCollister, 110 Ala. 319, 320, 53 Atl. 394, 46 1.. R. A. 748. the 1168 DEFENSES TO RENT. § 182 rent subsequently to become due, and the landlord has the same right as before the surrender to rent which had already become due,*^° even though it was payable in advance, and the sur- render occurs immediately after the rent day.®^* Nor can the landlord, the surrender occurring between rent days, demand an apportionment of rent as to time, and claim an allowance for the tenant's occupation of the premises from the last rent day till the day of the surrender,^^^ unless there is a statute allowing apportionment as to time in such a case. The effect of a surrender is necessarily to terminate the lia- immunity from rent after a sur- the time of the surrender. See render was based on a stipulation to ante, § 172 h. that effect, it being said that the It may of course be agreed at the surrender is "a valid consideration time of the surrender that the ten- for the relinquishment of rent." ant shall not be liable for accrued 895Kastner v. Campbell (Ariz.) rent. Hembrock v. Stark, 53 Mo. 53 Pac. 586; Sperry v. Miller, 8 N. 588. y. (4 Seld.) 336, 16 N. Y. 407; Sam- so- Grimman v. Legge, 8 Barn. & mis V. Day, 48 Misc. 327, 96 N. C. 324; Greider's Appeal, 5 Pa. 422, Y. Supp. 777: Forgotson v. Becker, 47 Am. Dec. 413; Curtiss v. Miller, 39 Misc. 816, 81 N. Y. Supp. 319; 17 Barb. (N. Y.) 477; Okie- v. Per- Nicol V. Young, 68 Mo. App. 448; son, 23 App. D. C. 170; American Attorney General v. Cox, 3 H. h. Bonding Co. v. Pueblo In v. Co. (C. Cas. 240; Shaw v. Lomas, 59 Law T. C. A.) 150 Fed. 17, 9 L. R. A. (N. S.) 477. (N. S.) 557. This is assumed In 896 Okie V. Person, 23 App. D. C. the numerous cases stating that a 170; Learned v. Ryder, 61 Barb. (N. surrender extinguishes the claim Y.) 552; Stern v. Murphy, 102 N. for rent still to accrue. Fitch v. Y. Supp. 797. So if each month's Sargeant, 1 Ohio, 352, is perhaps to rent is payable on the first of the the contrary. month in advance, the whole rent In Cameron v. Little, 62 Me. 550, for the month may be recovered, the landlord requested the tenant to though a surrender is made on the leave, and the latter did so. The fifteenth of the month. Barkley v. court does not speak of this as a McCue, 25 Misc. 738, 55 N. Y. Supp. surrender, but that is what It was, 608. In Kahn v. Simmons, 25 Misc. it seems. _See post, § 190 c, at note 737, 55 N. Y. Supp. 619, it seems to 151. The court says that "if the be decided that if the rent is due landlord voluntarily puts an end to on the first of the month, it may the tenancy in the middle of the be recovered though a surrender quarter, or the middle of the month, occurs on that day. But this can or at any other time between the hardly be so, since the lessee has regular rent days, he cannot recover till midnight of that day to pay, of the tenant rent for the fraction of and consequently the rent cannot time he occupied after the last reg- be considered as actually due at ular rent day." §182 SURRENDER. 1169 bility for rent growing out of the lease, and an agreement by the parties to the surrender cannot give it a different effect. Thus, when a surrender is made by an assignee of the leasehold to the landlord, the parties cannot agree that this shall not have the effect of relieving the original lessee from liability on his covenant for rent.**** Nor can the parties to the surrender con- tinue, by express agreement, the tenant's liability for rent, using the term "rent" in its technical sense, sinee, as above Temai'ked, the interest in the land out of which the rent was to issue no longer exists. Such an agreement for the continuance of the tenant's liability after surrender is merely an agreement to pay ia the fatur« periodic sums equivalent to the installihents of rent previously paid.*^^ . It has been decided in England that, if the landlord transfers the reversion, retaining, however, the rent, the tenant's right to surrender to the transferee of the reversion is not affected by the fact that thereby the transferor's right to rent is destroyed, since the right of a tenant to surrender cannot be affected by an arrangement between third persons to which he is not a party.*"" In one state, however, there is a decision apparently contrary to that above referred to, it having been held that tlie tenant can- Qot, by making a surrender of the leasehold interest to the les- sor, escape liability for rent to one to whom the lessor has pre- ^onsly transferred the future rent, provided he has, at the time of making the surrender, knowledge of such previous transfer* of the rent.'"* The view thiat the tenant's Tight to surrender, and thereby to relieve himself from rent, is ntft affected by his land- s'* Clements v. Richardson, L. R. agreement that one person shall 22 Ir. 535. -The lease might Itself hulld a, house for another, which provide that the lessee's liability for they could j^escind by mutual con- rent, or rather for sums equal to sent even though the builder has the installments of rent, should con- assigned to a third person the tinue even after a surrender by an money which Jie is to receive under assignee, and such a provision the contract. It is intimated that would, it seems, be effectual. the assignee of the reversion might 899 See Bain y. Clark, 10 Johns, be liable for damages to his as- (N. Y.) 424; Vogel v. Piper, 89 N. signer for thus destroying his right Y. Supp. 431, and post, note 951. to rent. 900 Southwell V- Scotter, 49 Law J. 9oi Wittman y. Watry, 45 Wis. Q. B. 356, where Bramwell, L. J., 4flJ. .The opinion does not discuss compared tjie . case to that of an the question. L. and Ten. 74. 1170 DEFENSES TO RENT. § 182 lord's act in separating the rent from the reversion, appears the sounder on principle. The instrument of lease sometimes provides in terms that the tenant may "surrender" during the term, but the word "sur- render," when thus used, refers not to a technical surrender, hut merely to a relinquishment of possession, and such a clause is merely equivalent to a clause authorizing the tenant to ter- minate the tenancy before the time at which it would otherwise come to an end, and the cases involving such a provision for "sur- render" have consequently been considered in another connec- tion.902 The surrender of the leasehold in a part of the premises Mali, it seems clear, have the effect of extinguishing the rent in propor- tion to the value of such part, and no further, that is, as it is ex- pressed in the old books, the rent will be apportioned.®"* There are many decisions upon the question whether, in the particular case, there was a surrender, so as to relieve the ten- an]t from rent subsequently to accrue. These decisions are re- ferred to in a subsequent chapter.""* By certain English decisions if a tenant, after making a sub- lease, surrenders his term, the reversion upon the sublease being thus destroyed, there can be no recovery of subsequently accruing rent against the subtenant by either the head landlord or sub- landlord. How far this doctrine would be accepted in this coun- try is questionable.""^ h. Abandonment by tenant. A mere abandonment of the premises by the tenant, unless followed by such action on the part of the landlord as to make a valid surrender, as elsewhere explained,""^ has no effect on the right to or liability for rent, and upon such abandonment the landlord may allow the prem- ises to lie vacant and may hold the tenant for the full rent.""' 902 See ante, § 12 f. v. Newkirk, 6 Cow. (N. Y.) 103. A provision for tlie payment of See Smith v. Pendergast, 26 Minn, rent "during occupancy" was con- 318, 3 N. W. 978; Hewitt v. Horn- strued to bind the tenant for the buckle, 97 111. App. 97. term of the lease and not only while no* See post, chapter XVII. he chose to remain. Bickford v. sos See ante, § 12 g (11), at notes Klrwin, 30 Mont. 1, 75 Pac. 518. 336-342a. 903Litt. § 222; Co. Litt. 148 a; Bac. oos See post, § 193. Abr., Rent (M) ; Ehrman v. Mayer, sot wolffe v. WolfC, 69 Ala. 549, 57 Md. 612, 40 Am. Rep. 448; Peters 44 Am. Rep. 526; Meyer & Co. v. § 182 ABANDONMENT. 1171 The fact that the landlord, upon such abandonment by the ten- ant, makes a lease to another will, under some circumstances, and in some jurisdictions, have the effect of a complete surrender, so as to exclude the tenant from liability for rent thereafter ac- cruing,^"® but so far as it does not do this, the new letting is regarded as in behalf of the former tenant, so as to relieve him from the rent under the original lease to the extent of the rent received under the new lease and no further .^"^ .Not infre- quently the lease expressly provides that, in case of the vacation or abandonment of the premises, the lessor may re-enter and re- let the premises, applying the rent received under the new lease upon that falling due under the former lease. The effect of such Smith, 33 Ark. 627; Lockwood v. amount of the subsequent rent less Lockwood, 22 Conn. 425; Miller v. what he could have obtained by so Benton, 55 Conn. 540; Stobie v. reletting. There is no authority for Dills, 62 111. 432; Orcutt v. Isham, 70 such a view, and it is expressly re- 111. App. 102; Martin v. Stearns, 52 pudiated in Rau v. Baker, 118 111. Iowa, 345, 3 N. W. 92, 35 Am. Rep. App. 150. 278; Higgins v. Street (Okl.) 92 ms See post, § 190 c, at notes 144- Pac. 153; Bowen v. Clarke, 22 Or. 148. 566, 30 Pac. 430, 29 Am. St. Rep. sod Meyer & Co. v. Smith, 33 625; McGlynn v. Brock, 111 Mass. Ark. 627; Marshall v. Grosse 219; Quinette v. Carpenter, 35 Mo. caothlng Co., 184 111. 421, 56 502; Laughran v. Smith, 75 N. Y. N. B. 807, 75 Am. St. Rep. 181; 205; Ilnderhill v. Collins, 132 N. Y. Halligan v. Wade, 21 111. 470, 269, 30 N. B. 576; Davidson V. Hirsh 74 Am. * Dec. 108; Oldewurtel v. (Tex. Civ. App.) 18 Tex. Ct. Rep. Wiesenfeld, 97 Md. 165, 54 Atl. 969, 159, 101 S. W. 269; Barlow v. Wain- 99 Am. St. Rep. 427; Underbill v. wright, 22 Vt. 88, 53 Am. Dec. 79; Collins, 132 N. Y. 269, 30 N. E. 576; Breuckmann v. Twibill, 89 Pa. 58; Merrill v. Willis, 51 Neb. 162, 70 N. Reeves v. Comeskey, 168 Pa. 571, 32 W. 914; Brown v. Cairns, 107 Iowa, Atl. 96; Bmrich v. Union Stock 727, 77 N. W. 478; Marseilles v. Yard Co., 86 Md. 482, 38 Atl. 943; Kerr, 6 Whart. (Pa.) 500, 37 Am. Bickford v. Kirwin, 30 Mont. 1, 75 Dec. 430; Alsup v. Banks, 68 Miss. Pac. 518; Respini v. Porta, 89 Cal. 664, 9 So. 895, 13 L. R. A. 598, 24 464, 26 Pac. 967, 23 Am. St. Rep. Am. St. Rep. 294; Auer v. Penn, 99 488; Patterson v. Bmerick, 21 Ind. Pa. 370, 44 Am. Rep. 114; Bowen v. App. 614, 52 N. E. 1012; Merrill v. Clarke, 22 Or. 566, 30 Pac. 430, 29 Willis, 51 Neb. 162, 70 N. W. 914. Am. St. Rep. 625; Gerhart Realty In Resser v. Corwin, 72 111. App. Co. v. Brecht, 109 Mo. App. 25, 84 625, it seems to be held that the S. W. 216; Higgins v. Street (Okl.) landlord is bound to lease the prem- 92 Pac. 153; Isaacson v. Wolfensohn, ises on the tenant's abandonment, 84 N. Y. Supp. 555. and that he can recover only the 1172 DEFENSES TO RENT. §-182 a provision will be considered in eonnection with the question oi the effect of a forfeiture of the leasehold upon' th« rights to rent.»io When the statute requires a notice of a certain length in order to terminate a tenancy at will, the tenant, it has -been decided, though he abandons the premises and the landlord is aware thereof, continues liable until the statutbry notice is given.'io" And it has been asserted, in reference to a tenancy from year to year, that thfr tenant, though he abandons the premises; con- tinues liable, if he fails to give the requisite notice to terminate the tenancy, not only for the balance of that year, but for sub- sequent years, until he properly terminates the tenancy by giving such notice.^i^ i. Release. The right to rent may be extinguished by a release, executed by the person entitled to the rent, in. favor of the person whose estate is charged therewith.^i^ ^ ^ release from 010 See post, at notes 927-952. (semble). And see Arbeliz v. Ex- In McElroy v: Brooke, 104 111. ley, Watkins & Co., 52 W. Va. 476, App. 220, it was decided that there 44 S. E. 149, 61 L. R. A. 957. ■Was an "abandonment" within such 012 LItt. § 479; Co. liitt 280a; a provision when the leasehold Howell v. Lewis, 7 Cai*; & P. '566. passed to a receiver "by operation This is perhaps as convenient a of law and be renounced it as an place as any for a reference to the asset of the estate. ■ two following decisions, though they 9ioa Rollins v. Moody, 72 Me. 135. involved no question of- a 'technical This case refers to several Maine release. In Chambers v. Ross, 25 and Massachusetts oases where it N. J. Law, 293, it was decided that was held that the landlord could a landlord did not deprive himself recover the amoflnt of the rent for of his right to recover reiit by fef lis- tbe current rent period although the ing to receive rent or make repairs, tenant abandoned possession, unless under the erroneous impression that he gave the statutory notice, but in the reversion had passed to another, theSe Cases the question whether he the tenant not having been preju- eould redove'r for subsekjuent periods diced by such disclaimer. In Wood- was not considered. See Withers v. worth v. Harding, 75 App. Div.' 64, Larrahee, 48 Me. 570; Whitney v. 77N. Y, Supp. 969, it was held that Gordon, 55 Mass. (1 Gush.) 266; the fact that one of fi?o joint les- Walker V. Furbush, 65 Mass. (11 sees agreed, subsequently to the de- Cusb.) 366, 59 Am. Dec! 148. mise, that if the lessor took' pro- !>» Pugsley V. Aikin, 11 N. Y. (1 ceedings against the Other leraee, Kem.) 494; Huntington v. Park- who had become bankrupt, or re- hurst, 87 Mich. 38, 49 N. W. 597, 13 eoVered the premises from such L. R. A. 83, 24 Am. St. Rep. 146 other for nonpayment Of rent, the § 182 RHLRASE, 1173 all liability or Dbligation to perform any of the covenants and agreements of the lease has been held to cover rent dne and to become dxie."^* A release is, properly speaking, an instrument under seal, and such an instrument is valid without reference to the presence of a consideration z'el non.^'^* A contract not to claim any rent, if not under sedl, and not supported by a suffi- cient consideration, is invalid.si" But it has been decided that if, during the term of the tenancy, the landlord agrees to re- lease the joint and several liability of the two tenants for the rent of the whole, and accepts in place thereof the separate ten- ancy of each for one-half, such an agreement, even if not valid at the time, for lack of consideration, becomes valid in favor of either traiant, if another year is entered on with the intention that it shall be binding.^i^ The fact that no rent has been paid for a long period, even foT* twenty years or more, raises no presumption that the rent has been released, though it may, by reason of the statute of limi- tationSj prevent a recovery of particular installments qf rent over- due,®i^ . In Maryland a statute has been passed providing that the non demand or nonpayment of rent for twenty years shall raise aconeiusive presumption of the extinction of the rent;'*^ and in Pennsylvania there is a like provision as to the iiondemand or nonpayment of "ground rent" for twenty-one years. ^i" In lessor mlgliJ; still hold him for the »" Ehrman v. Mayer, 57 Md. 612, rent, did not relieve the bankrupt 40 Am. Rep. 448; Myers v. Silljacks, l€?«ee from liability for the rent. 58 Md. 827; Jackson v. Davis, 5 otsBak'er v. Clancy, 69 M. App. Oow^. (N. Y.) 130, 15 Am. Dec. 451; 8g_ Col« V. Patterson, 25 Wend. (N. Y.) otiCo. Litt. 264b^ Bao. Abr., Re- 456; Troy Centra! Bank v. Heydom, lease (A); -WaWs Pollock, Con- 48 N. Y. 260; Lyon t. Odell, 65 N. tracts (Williston's Ed.) 812. Y. 28; Bradt v. Church, 110 N. Y. 910 See Haeeltine v. Anshermian, 87 537, 18 N. E. 357, 1 L. R. A. 456; Mo. 410; Kaven v. Chrystle, 84 N. Kurr v. Brobst, 2 "Woodw. (Pa.) 187; Y. Su'pp. 470; Donaldson t. Cherry, St. Mary's Church Trustees "k. Miles, 29 Oni 552.' But in Hill v. Wil- 1 Whart. (Pa.) 229. liams, 41 S. C. 134; 19 S. E. 290, ois Code Pub. Gen. Laws, art. 53, it appears to be assumed that the § 26. landlord could relieve the tenant o" Act April 27, 1855.' See, as to from liability' for rent by hfis oral the construction of the act, Hiester indication of an intention that the v. STiaefEer, 45 Pa. 537, 84 Am. Dec. tenancy' should be dissolved. 518;" Korn v. Browne, 64 Pa. 55; 918 Walker v.' GitTieris, 156 Pa. 178, Wallace v. Fourth United Presty- 27 Atl 36. terlan Chureh, 152 Pa. 258, 25 Atl. 1174 DEFENSES TO RENT. § 182 Maryland, moreover, before the passage of the statute referred to, it was decided that the fact that the landlord has for many years collected only a certain part of the entire rent from each one of several parts into which the premises originally leased have been subdivided, taken in connection with other circumstances, may furnish ground for a presumption that he has assented to an "apportionment" of the rent with reference to such parts in accordance with the payments so made,*2o tji^t is, in effect, that a partial release of the rent as to a part of the premises leased may be presumed. j- Forfeiture of leasehold interest. Upon the assertion of a forfeiture by the landlord, though he is still entitled to rent which had previously become due,^^! he cannot recover rent sub- sequently to become due, or rather, there is no rent subsequently to become due,'^^ ^nd, if he re-lets to another at a less rent, the 520; Barber v. Lefavour, 176 Pa. Rubicum v. Williams, 1 Ashm. 331, 35 Atl. 202. That the statute (Pa.) 235. is not invalid as impairing the obli- In Cook v. Parker, 67 Minn. 374, gation of contracts, as applied to 69 N. W. 1099, 36 L. R. A. 463, it rents' created before its passage, see was held that the rent and taxes in Wilson V. Iseminger, 185 U. S. 55, 46 arrear had been in effect satisfied by Law. Ed. 804. reason of the fact that the lessor, 920 See Myers v. Silljacks, 58 Md. though he might have asserted a 319, 42 Am. Rep. 332; Barnitz v. right of re-entry under the lease on Reddington, 80 Md. 622, 24 Atl. 409; account of their nonpayment when Connaughton v. Bernard, 84 Md. 577, due, had not done so, but had asked 36 Atl. 265. But that the landlord for and obtained a decree finding for many years collected the entire the amount due and foreclosing all rent from the holder of one portion the lessee's rights unless such of the leased premises, who was a amount was paid within a time sublessee bound for the whole rent, named, he thereby occupying the did not involve an apportionment or same position, it was said, as a release as to the other portion. See mortgagee who seeks and obtains a Smith V. Heldman, 93 Md. 343, 48 strict foreclosure. Atl. 946. 022 oidershaw v. Holt, 12 Adol. & 921 Hartshorne v. Watson, 4 Bing. B. 590; Jones v. Carter, 15 Mees. & (N. C.) 178; Hinsdale v. White, 6 W. 718; Watson v. Merrill, 69 C. C. Hill CN. Y.) 507; McKeon v. Whit- A. 185, 136 Fed. 359; Coburn v. ney, 3Denio (N. Y.) 452; Johnson v. Goodall, 72 Cal. 498, 14 Pac. 190, 1 Oppenheim, 55 N. Y. 280; Mackubin Am. St. Rep. 75; Grommes v. St. v. Whetcroft, 4 Har. & McH. (Md.) Paul Trust. Co., 147 111. 634, 35 N. 135; Stuyvesant v. Davis, 9 Paige E. 820, 37 Am. St. Rep. 248; Wre- (N. Y.) 427; McCready v. Linden- ford v. Kenrick, 107 Mich. 389, 65, N. born, 172 N. Y. 400, 65 N. B. 208; W. 234; Way v. Reed, 88 Mass. (6 § 182 FORFEITURE. 1175 former lessee is not liable for any deficiency .'♦^^ It is no doubt immaterial in this connection whether the forfeiture is enforced by ejectment, summary proceedings, or actual re-entry, the ma- terial point being the cessation of the leasehold estate. Under the old practice in ejectment, in case such an action was brought to enforce a forfeiture, the rent to which the landlord was entitled was that which became due before the date of the fictitious demise, the tenant being considered as a trespasser from that time, and as consequently thereafter liable only for mesne profits as distinguished from rent."-* Under the modern practice, the rent which becomes due prior to the commencement of an action by, the landlord to recover possession would ordi- narily, it seems, be recoverable, and that only,»25 unless there is, in the particular case, an actual re-entry or declaration of forfei- ture, sufficient in itself to make, the tenant continuing in posses- sion a wrongdoer from that time, in which case there could be no recovery as for rent subsequently becoming due,*^^^ though the landlord might, in some cases, it seems, recover mesne profits from that time.®^® Though the rule is settled that, apart from express stipulation, there can be no recovery as for rent falling due after the en- forcement of a forfeiture for breach of condition, the courts have shown a disposition to uphold provisions in the instrument of lease, continuing the liability of the lessee in such case in Allen) 364; Sutton v. Goodman, 194 B. 590; Stuyvesant v. Davis, 9 Paige Mass. 389, 80 N. B. 608; Hall v. (N. Y.) 427. Joseph Mlddlebr. Jr., 197 Mass. 485, 025 See Jones v. Carter, 15 Mees. & 83 N. B. 1114; Stuyvesant v. Davis, W. 718; Ooburn v. Goodall, 72 Cal. 9 Paige (N. Y.) 428; Hackett v. 498, 14 Pac. 190, 1 Am. St. Rep. 75. Richards, 13 N. Y. (3 Kern.) 138. 026a See Brigham Young Trust Co. In Isom V. Rex Crude Oil Co., 147 v. Wagener, 13 Utah, 236, 44 Pac. Cal. 659, 82 Pac. 317, it was decided 1030. that the lessor, rescinding the lease 926 See Johannes v. Kielgast, 27 under Cal. Civ. Code, § 1930, author- 111. App. 576; Fifty Associates v. izing him to rescind if the premises Howland, 59 Mass. (5 Cush.) 214. are used for a purpose other than In Fish v. Ryan, 88 111. App. 524, it that for which they are let, need not is said that a tenant wrongfully repay the rent already paid to him holding possession after the forfei- for the expired portion of the term, ture of the leasehold Is liable in use 923 Bx parte Houghton, 1 Lowell, and occupation. This appears to be 554, Fed. Cas. No. 6,725. incorrect, as he is no longer the 924 Oldershaw v. Holt, 12 Adol. & tenant of the lessor. See post, § 304. 1176 DEFENSES TO RENT. § 182 Spite of tke termiDation of the tenancy. Thus it lias been decided that the parties may validly stipulate that, upon the termination of the tenancy by re-entry or equivalent action on the part of the landlord, he may re-let to another at the risk of the tenant, the latter remaining liable for any deficiency in the amount so obtained as compared with that reserved by the original ]ease.92T And : even a provision that the lessee shall remain liable for rent in spite of the forfeiture of his term has been up- held,928 though such a provision will enable the landlord, having re-let to another, to claim from the first lessee, not the whole rent reserved by the lease to him, but only the deficiency left after crediting thereon the amount reserved by the second lease.^29 When the landlord is authorized to re-let at the risk of the tenant and hold him liable for any deficiency, he must, it is said, in order to be able t^ assert a continuing liability fcHC, the rent, make an honest and reasonable attempt to ' re-let, aatd he caaj- not refrain from making any attempt and yet hold' the former tenant personally liable for the accruing rent under the lease.^^" Nor can he, without good reason, refuse to re-let to a particular person who offers to take a lease, and he is liable for^ any loss occasioned by such a refusal.*^^ It is sufSeient, however, that he manages the property in good faith, according to his best judgment, for the interest of the former tenant; as well as for his own,**^ and if he re-lets at what appears to be the best rent obtainable, the former tenant cannot complain,''''^ nor is he bound to re-let to a particular person merely because that person is 927 Way V. Reed, 88 Mass. "(6 Al- 929 Grommes v. St. Paur Trust Co., ten) 364; Hall v. Gould. 13 N. Y. (3 147 111. 634, 35 N, B. 820, 37 Am. Kern.) 127; Hackett v. Richards, 13 St! Rep. 248. ; N. Y. (3 Kern.) 138; Nattan v. Gen- '930 international Trust Co. v. dron Iron Wheel Co., 18 Misc. 374, Weeks, 203 tf. S. 364, 51 Law. Ed. 41 N. Y. Supp. 661; Lewis v. Stafford, 224. 24Misc. 717, 53N.Y. Supp. 801; Bald- osi Fitch v. Armour, 59 N. Y. win V. Thibaudeau, 28 Ahh. N. C, 14, Super. Ct. (27 Jones & S.) 413, 14 17 N. Y. Supp. 53'2; Woodbury v. I^. Y. Supp. 3l9. ^ Sparrell Print, 187 Mass. 426, 73 932 Edmands v. Rust & Richardson N. E. 547. ' Drug Co., 191 Miisfe. ' 123, 77 N. E. 928 Grommes V. St. Paul Trust Co., 713. _ . , 147 III. 634, 35 N. E. 820, 37 Am. 9.53 See James v. Rubino, 30 Misc. St. Rep. 248; Heims Brew. Co. v. 452, 62 N. Y. Supp. 468. Flannery, 137 111! 309, 27 N. E. 286. § 182 FORFEITURE. 1177 satisfaxjtttpy ftnancially to such former' tenant.^** Furthermore, fi« is undtr no obligation to join adjoining premises owned by him to those leased, in order to effectuate a re-letting of the latter.»3» The landlord, while he is under no obligation to make im- provements in order to re-let, should, it has been said, make small repairs necessary to render the premises tenantable, having in view the Surrounding ;circumstances and the fact of the first les- see's interest in the matter.s^e , The burden of showing diligence in regard to re-letting is, it is said, upon the landlord suing to recover under the clause in question.'*'^ The landlord, after making a new lease to another, cannot, until there has been an actual default by the new tenant, recover as against the former lessee more than the difference in the rents reserved,^38 an^ jf any rent under the new lease is not collected owing to his neglect, he must nevertheiless credit the former les- see with 'the amoimt thereof.^*® He cannot make improvements for the purpose of obtaining a higher rent and charge the former lessees with the cost thereof.^*'' The validity of an agreement of this character has been held to be independent of the fact that the forfeiture is enforced by a summary proceeding, and that the statute provides that a judg- ment in such a proceeding shall terminate the relation of land- lord and tenant.'*! In Massachusetts, a provision that the lessee "should be liable to the lessor for all loss and damage sustained by the lessors ori account of ttie premises remaining unleased, or being let for the remainder of the term for a less rent than that herein reserved," has been held to impose no obligation to make any payments until the premises cease to remain unleased.®"'^ In New York, 834 Edmands v. Rust & Richardson Super. Ct. (27 Jones & S.) 413, 14 DrugjOc, 191 Mass. 123, 77 N. E. 713. N. Y. gupp. 319. 935 Woodbury v. Sparrell Print, »i» Hackett v. Richards, 13 N. Y. 198 Mass. 1, 84 N. B. 441. (3 Kern.) 138; McCready v. Linden- »,.Tir ^r, «, a„„ ,=11 P-i^t born, 172 N. Y. 400, 65 N. B. 208. 936 Woodbury v. Sparrell Print, ^. - , , '„ ,,. Ml Slater V. Von Chorus, 120 App. 198 Mass. 1, 84 N. B. 441. ,^^ ^^^ ^^^ ^_ ^ g^pp ggg. p^^. 937 Woodbury v. Sparrell Print, ^^^^ ^ j,^,gj,^_ 55 ^^^^ 244, 105 N. 198 Mass, 1, 84 N, B. 441, ^ y snpp_ ,495;- giater v. Bonflglio, 56 938 Hackett v. Richards, 13 N. T. Misc. 385, 106 N. Y. Supp. 861. (3 Kern.) 138. 942 Woodbury v. Sparrell Print, 939 Fitch V. Armour, 59 N. Y. 187 Mass. 426, 73 N. E. 547. 1178 DEFENSES TO RENT. § 182 under a provision that the lessee should pay any deficiency upon the re-letting in equal monthly installments as the amo\mt thereof should, fi-om month to month, be ascertained, by de- ducting from the rent reserved the rent received, it was held that a separate and independent cause of action arose every month on the ascertainment of the deficiency, and that while the landlord could recover in one action the sum of the defi- ciencies accruing diu-ing a succession of months up to the time of bringing the action, he could not recover for a deficiency which accrued thereafter.^** It has been suggested in the same state that, in the absence of a provision for ascertaining the deficiency monthly, the lessor would have to await the ascertainment of the total deficiency by reason of the ending of the term before bring- ing suit.^** Such a clause, authorizing the lessor, after re-entry, to lease at the risk of the lessee, does not entitle the lessee to the benefit of any excess of rent obtained on the new letting over that pay- able under the former lease, to be asserted against a claim for rent accruing under the former lease before the re-entry, nor can the lessee assert, as against such claim, that the re-letting was at too small a rent.**^ In New York it has been decided that a provision authorizing the lessor, upon a "re-entry" by him, to re-let on account of the original lessee, applies only when the re-entry is by means of a common-law action of ejectment, and not when it is by means of a summary proceeding.®** A provision giving such a privilege of re-letting after "resuming possession" has been differently regarded,**'^ as has one authorizing the lessor to re- let after "re-entry by force or otherwise, "8*" or after "re-entry by any of the forms known to the law. ' '^*^ The benefit of a clause of this character, entitling the lessor 043 McCready v. Lindenbom, 172 947 Landesman v. Hauser, 45 Misc. N. Y. 400, 65 N. E. 208. 603, 91 N. Y. Supp. 6. 044 Harding v. Austin, 93 App. »*» Anzolone v. Paskusz, 96 App. Div. 564, 87 N. Y. Supp. 887. ^'^- ^^^' ^^ ^- ^- ^^^PP- 203: Slater v. Bonfiglio, 56 Misc. 385, 106 N. Y. 043 Richardson v. Gordon, 188 gy_„ gg-^ Mass. 279, 74 N. E. 344. ' 9,9 Baylies v. Ingram, 84 -App. 946 Michaels v. Pishel, 169 N. Y. Div. 360, 82 N. Y. Supp. 891; Id., 181 381, 62 N. E. 425. 57 L. R. A. 317. N. Y. 518, 73 N. B. 1119. § 182 FORFEITURE. X179 to re-let at the lessee's risk, passes upon a transfer of the rever- sion.^°<* In these cases, it is to be observed, in which the lessee, by ex- press stipulation, continues liable, after the forfeiture of his in- terest, for the amount of the rent reserved in the lease, or for any excess of such amount over that obtained on a new lease, the continuing liability is not, properly speaking, for rent, since the tenancy to which the rent appertained has ceased to exist. It is merely a contractual liability to the extent named.^^i But it has been decided that the claim may be pleaded as one for i-ent.352 Upon the termination of the tenant's interest by a forfeiture, daring a particular rent period, the rent is not, in the absence of a statutory provision or express stipulation to the contrary, ap- portionable as to time,*"2a and, consequently, unless the rent is payable in advance, the landlord loses all the rent for that period.^^2 For this reason it is advisable for him to insert in the instrument of lease an express provision reserving rent for a pro- portionate part of the period in which forfeiture may take place.^** This is, however, unnecessary when there is a stipulation, such as that above referred to, continuing the lessee 's liability, conceding that a stipulation of the latter character would be regarded as valid in the particular jurisdiction. In case the rent is payable in advance, the tenant is the one to suffer by reason of the nonapportionability of the rent, the land- lord being, it seems, entitled to the rent for the whole period, though he re-enters on the day after it falls due. It has been so decided in England,*^-"* and such a view has been adopted in New York in connection with summary proceedings to recover pos- session for default in payment.^^^^ In Massachusetts ^'^^^ and »5o Weeks v. International Trust "sa Ellis v. Rowbotham [1900] 1 Q. Co., 60 C. C. A. 236, 125 Fed. 370. B. 740; Hall v. Middleby, 197 Mass. »5tSee Hall v. Gould, 13 N. Y. (3 485, 83 N. E. 1114. Kern.) 127; Grommes v. St. Paul os* See Davidson's Precedents In Trust Co., 147 111. 634, 35 N. B. 820, Conveyancing (3d Ed.) vol. 5, pt. 1, 37 Am. St. Rep. 248; Woodbury v. p. 109, note. Sparrell Print, 187 Mass. 426, 73 N. osb Ellis v. Rowbotham [190O] 1 E. 547. Q. B. 740. !>52 Weeks v. International Trust ossa Healy v. McManus, 23 How. Co., 60 C. C. A. 236, 125 Fed. 370. Pr. (N. Y.) 238;' McNulty v. DufEy, 952a See ante, § 176 a. 59 N. Y. Supp. 592; Cunningham v. 1180 DEFENSES TO' RENT. §,182 Michigan*^''" a contrary view has been asserted, unfortunately with Gilt any discussion of the matter. It is difficult to nn dor- stand how, rent ha-ving become due at the coramaneement of: the rent period, it can cease to be due because the tenancy, .subse- cfuently comes to an end. In case the tenant redeems from a forfeiture he is, it has been decided, entitled to recover from his subtenant the rent payable under a sublease previously made by him to the latter, though the subtenant had, after the forfeiture, attorned to the head les sor and paid rent to him.t'SBfl k. Taking under eminent domain. It is stated in a number of cases that a taking of premises under the power of eminent domain, and the ouster of the tenant as a result thereof, does not involve an eviction of the tenant,®^^ and the courts have, as a general rule, considered the question of the effect of such taking upon the liability for rent without reference to the common-law rules as to the effect upon such liability of an eviction either by the landlord or by paramount title. In discussing this ques- tion we will consider first the decisions as to the effect of a taking of the whole premises and then those as to the effect of a taking of part only. There are perhaps two decisions to the effect that it is no de- fense to the claim for rent that the whole premises have been taken for public use by the state, or by some person acting nnder authority from the state, it being considered that the covenant to pay rent remains operative in spite of the fact that the covenan- tor no longer has any interest in the land from which to pay it, he receiving compensation for the value of his interest.^s^ More Phillips, 1 E. D. Smith (N. Y.) 416; City of Boston, 37 Mass. (20 Pick.) Bernstein v. Helnemann, 23 Misc. 159; Folts v. Huntley, 7 Wend. (N. 464, 51 N. Y. Supp. 467; Manning v. Y.) 210; Stubblngs v. Evanston, 136 Ferrier, 27 Misc. 522, 58 N. Y. Supp. 111. 37, 26 N. E. S7r, 11 L. R. A. 839, 332. 29 Am. St. Sep.. 300; Gluck v. City 9S5b Sutton V. Gooamaii, 194 Mass. of Baltimore, '81 Md. 315, 32 Atl.^15, 389, 80 N. B. 608? Ha.U v. Middleby, 48 Am. St. Rep. 515; Dyer v. Wight- 197 Mass. 485, 83 N. E. 1114. man, 66 Pa. 425; Foote v. City of 955c Wreford v. Kenrlck, 107 Mich. Cincinnati, 11 Ohio, 408, 38 Am. Dec. 389, 65 N. W. 234. ' 737.' 055a -Wilson v. Jones, 64 Ky. (1 957 Foote v. City of Cincinnati, 11 Bush) 173. Ohio, 408, 38 Am. Dec. 737; Polfs v. 856 Parks V. City of Boston, 32 Huntley, 7 "Wend. (N. Y.) 210. In Mass. (15 Pick.) 198; Patterson v. the latter case there was a "perpet- § 182 TAKING UNDER EMINENT DOMAIN. 1181 usually, however, it has been decided that if the whole of the premises are taken, the liability of the tenant upon his covenant to paj' reiit conies entirely to an end.®^* Some of the latter class of decisions apparently regard such a case as governed by the decisions, which we have elsewhere ventured to question,^^^ to the effect that the termination of the lessor's estate before the expiration of the term named in the lease of itself relieves the lessee from any further liability for ual lease" of the use of the waters rent thereafter accruing, did not of a creek, and the creek was after- relieve him from liability for rent wards diverted by the state canal which had previously come due, commissioners, and it was held that although payable in advance, the tlie liability for "rent" remained, tenant having been given damages This was in reality not a "lease," on the theory that he would pay it would seem, nor was the compen- such rent. As to a possible conflict sation "rent." It was a conveyance between the above cited New York of certain water rights, with a cov- case and the earlier case of Folts enant on the part of the grantee to v. Huntley, 7 Wend, (N. Y.),210, see pay annually a sum in gross in com- ante, note 957. pensation therefor. It is, however. That such a defense must "be spe- in terms, a decision that the taking cially pleaded In an action for rent, of the whole subject-matter of a see Hays v. HafEen, 31 Misc. 655, 64 lease does not terminate the lia- N. Y. Supp. 1111. bility for rent. So considered, there in Uhler v. Cowen, 199 Pa. 316, 49 are later decisions of the interme- Atl. 77, where the city, having stat- diate appellate court not in accord utory authority to open a street therewith. See Lodge v. Martin, 31 through private property upon three App. Div. 13, 52 N. Y. Supp. 385; months' notice to the owner, gave Gugel v, Isaacs, 21 App. Div. 503, 48 , notice to the lessor that it would re- N. Y. Supp. 594. quire the property at the end of 058 Barclay v. Pickler, 38 Mo. 143; three months, and the lessor served Corrigan v. Chicago, 144 111. 537, 33 this notice on the lessees, it was N. E. 746, 21 L. R. A. 212; Dyer v. held that the lessees could remove Wightman, 66 Pa. 425; O'Brien v. from the premises at the end of the Ball, 119 Mass. 28, 20 Am. Rep. 299; three months without further lia- McCardell v. Miller, 22 R. I. 96, 46 bility for rent, although the city did Atl. 184; Lodge v. Martin, 31 App. not then take possession, the pos- Div. 13, 52 N, Y. Supp. 385. In sibility of their subsequent enjoy- Gugel V. Isaacs, 21 App. Div. 503, 48 ment of the premises being so un- N. Y. Supp. 694 (judgment affirmed, certain as to be valueless, and the without opinion, 162 N. Y. 636, 57 lessor having the right, by statute N. E. 1111), it was decided that the immediately to proceed against the acquisition of the premises by , the city for dainages. city by oondemnatloii propeedings, dm See ante, § 78 p (3). white it relieved tJie tenant from 1182 DEFENSES TO RENT. § 182 rent.""" But the lessor's estate is not, properly speaking, "term- inated" by reason of its forced sale to the state or to the cor- poration exercising the power of eminent domain, any more than it is terminated by its transfer to a private individual, and a transfer of the lessor's estate to a third person, whether volun- tary or involuntary, is no reason for relieving the tenant from rent. Were the lessor 's interest taken vrithout the tenant 's in- terest being taken, as would occur when the tenant is not made a party to the condemnation proceeding,'"^ the tenant would presumably be liable for rent to the state or corporation which has succeeded to the rights of the lessor. In Pennsylvania the view that the liability for rent ceases upon a taking under eminent domain is in terms based on the fact that the courts of that state have jurisdiction both at law and in equity, and that consequently, even i.n the condemnation proceed- ing, the interests of the landlord would be secured by the im- mediate payment to him of the whole fund, instead of lea^^ng part of it in the hands of the tenant to be paid by him in install- ments in accordance with the covenant for rent, and that there- fore the relation of landlord and tenant, and the liabilities inci- dent thereto, are to be regarded as extinguished by such a pro- ceeding.®"^ In two states a distinction is taken between the case in which the ownership of the premises passes to the state or other public agency, that is, in which the "fee' is taken, as it is usually ex- pressed, and that in which an easement merely in the land is taken, giving a right of user only, and leaving the ownership of 960 In O'Brien v. Ball, 119 Mass. merely a life estate. The theory 28, 20 Am. Rep. 299, it is said that which is thus, by implication, "the liability to pay the rent re- adopted in O'Brien v. Ball, supra, served ceased with the termination that the rent ceases on a taking un- of the (lessor's) estate during the der eminent domain because the les- term subsequent to the making of sor's estate then terminates, seems the lease and the entry of the les- to be also adopted in Corrigan v. see) under it," and reference is Chicago, 144 111. 537, 33 N. E. 746, made to Lamson v. Clarkson, 113 21 L. R. A. 212, and Barclay v. Pick- Mass, 348, 18 Am. Rep. 498, and ler, 38 Mo. 143. cases there cited. The latter case »6i Lewis, Eminent Domain, §§ merely decided that the tenant's lia- 326, 339. bility for rent ceases when the land- i>«2Dyer v. Wightman, 66 Pa. 425 lord's estate comes to an end, as for (ante, note 958), approved in Uhler instance when the landlord has v. Cowan, 192 Pa. 433, 44 AO. 42. § 182 TAKING UNt)ER EMINENT DOMAIN. 1183 the land undisturbed,®®^ it being decided that while, in the former ease, the liability for rent immediately comes to an end, in the latter ease it comes to an end only when the tenant is ousted by the beneficiary of the condemnation proceeding for the purpose of enjoyment of the easement.^®* Having in view the very decided statement by at least one of these courts, that dis- possession under eminent domain proceedings does not involve an eviction,965 it might be inquired on what theory the liability for rent is to be regarded as terminated even by the actual ouster of the tenant, the title to the fee remaining as before, but, apart from this, the distinction suggested seems a sound and rational one, as we will attempt to show in discussing the effect of the condemnation of a part only of the premises as regards the lia- bility for rent. The taking of a part only of the premises vmder the power of eminent domain does not, it has been decided, affect or in any way diminish the liability of the tenant for the whole amount of the rent reserved.^^* This view is thus stated in what may be regarded as a leading case on the subject: "The lessee takes his term, just as every other owner of real estate takes title, sub- ject to the right and power of the public to take it or a part of it, for public iise, whepever the public necessity and convenience may require it. Such a right is no incumbrance; such a taking is no breach of the covenant of the lessor for quiet enjoyment. The lessee then holds and enjoys exactly what was granted him, as a consideration for the reserved rent; which is, the whole use and beneficial enjoyment of the estate leased, subject to the sovereign right of eminent domain on the part of the public. If he has suffered any loss or diminution in the actual enjoyment of this use, it is not by the act or sufferance of the landlord ; but it is by the act of the public, against whom the law has pro- »*' But it may be shown that a clause to this effect was intended to be inserted in the lease and was omitted by mistake-i^so Wliere the lease provided for the suspension or abatement of the rent, or of a just and proportionate part tliereof, in case of the destruction by fire of the premises or of any part thereof, the abatement was not, it was decided, limited to the rental value case of "partial destruction by an lleved the tenant from liability for unforeseen event," and also made an installment of rent falling due the premises "unfit for the purpose before the submersion, this render- for which leased" within another Ing the land incapable of producing statute authorizing a rescission of the a crop during that season, lease on that ground. In Vinson v. io4t Monk v. Cooper, 2 Ld. Raym. Graves, 16 La. Ann. 162, and Payne 1477; Beach v. Parish, 4 Cal. 339; V. James, 45 La. Ann. 381, 12 So. 492, Hare v. Groves, 3 Anstr. 687; Holt- • it was held that the breaking of a zapffel v. Baker, 18 Ves. Jr. 115; levee was not an accident of such Belfour v. Weston, 1 Term R. 310; "an extraordinary nature that it Ward v. Bull, 1 Pla. 271. could not have been foreseen," with- i»48 Davis v. George, 67 N. H. 393, in a statute authorizing an abate- 39 Atl. 979; Fowler v. Bott, 6 Mass. ment of rent in case of the destruc- 63; Leavitt v. Fletcher, 92 Mass. (10 tion of the crop by such an acci- Allen) 121; Lewis v. Hughes, 12 dent. Colo. 208, 20 Pac. 621. In boiinellan v. Wood, Curtis & io4o Stafford v. Staunton, 88 Ga. Co., 4 Cal. App. 192, 87 Pac. 235, it 298, 14 S. B. 479. was held that particular provisions loso Wood v. Hubbell, 10 N. Y. (6 of the lease to the effect that in case Seld.) 479; Gates v. Green, 4 Paige of submersion of the land there (N. Y.) 355, 27 Am. Dec. 68. should be no liability for rent re- § 182 DESTRUCTION OF OR INJURY TO PREMISES. 1203 of the part destroyed, but included any depreciation in the rental value of the balance of the premises.!**'^ A stipulation that rent should cease if the landlord failed to make "heavy repairs," which the lease bound him to make, was held to apply where the buildings were destroyed and the land- lord announced that he would not rebuild, so as to relieve the tenant from rent from the time of such destruction.^"'* But the tenant is not relieved from rent during the making of repairs by the fact that the landlord has agreed to pay for necessary re- pairs.i'"3 Even though the lessee is entitled by the terms of the lease to withhold rent after destruction of the buildings, if he pays it upon demand by the lessor, he cannot, it has been held, recover the rent so paid, this being in accordance with the general rule that a payment, not made under mistake of fact or through fraud, cannot be recovered by the payor.Jo^aa (b) Character of injury. A provision of the lease for the termination of the tenancy or of liability for rent upon the "de- struction" of the buildiog, or in case it be "destroyed," without any reference to "injury," has been decided not to apply when there is no actual destruction, but merely injuries to parts of the building by fire or other casualty, temporarily unfitting such parts for occupancy.""** , And the same view has been taken when the lease provided for a suspension of rent in case only of "total destruction, "loss or when the building was "destroyed and burned down."^'"® But in One state a provision for suspen- losi Gary v. Whiting, 118 Mass. ever, a contrary decision in Lincoln 363. Trust Co. v. Nathan, 175 Mo. 32, 74 A provision in a lease for an S. W. 1007. abatement of rent on destruction of io34Wall v. Hinds, 70 Mass. (4 the buildings does not entitle the Gray) 256, 64 Am. Dec. 64; Vincent lessee to an abatement on a note v. Frelich, 50 La. Ann. 378, 23 So. given by him in consideration of 373, 69 Am. St. Rep. 436; Spalding the landlord's acceptance of a sur- v. Munford, 37 Mo. App. 281. In the render of the leasehold, the sur- latter case the lease provided that the render having taken place before the tenant should repair all damage to destruction of the premises. Brooks the premises, "destruction by fire ex- v. Cutter, lift Mass. 132. cepted," and that rent should cease 1052 Thpmpfton v. Pendell, 12 Leigh in case of "destruction by fire." (Va.) 591. 1"'^ Einstein v. Levi, 25 App. Div. 10D3 Peck V. Ledgwidge, 25 111. 109. 565, 49 N. Y. Supp. 674. 1033a Regan v. Baldwin, 126 Mass. iosb Vanderpoel v. Smith, 2 Daly 485, 30 Am. Rep. 689. There is, how- (N. Y.) 135. 1204 DEFENSES TO RENT. § 182 sion of rent in case of "destruction" by fire seems to have been regarded as applicable if the fire merely makes the premises un- tenantable.^^s^ A provision for the cessation of rent, if the prem- ises become untenantable through fire, has been held not to apply when the occupancy is merely unpleasant, owing to the injury of the furnishings by fire, smoke and water.^^"** On the other hand, a provision for the apportionment of rent in case of an injury permitting but a partial occupation has been held to give no ex- emption from rent if the premises are made totally untenantable and are therefore unoccupied.i*"'® (e) Cause of injury. Quite frequently the provision of the lease is for the cessation of rent upon injury or destruction from "unavoidable casualty." In reference to this expression it has been said that it "does not signify a mere want of repair, arising from lapse of time or improper use of the premises; nor from trespasses or nuisances occasioned by the acts of the tenant or of third persons. Neither does it include any injuries which may happen by reason of the common and ordinary use and occupation of the estate leased, or of adjoining premises. The term has a much more restricted meaning, and comprehends only damage or destruction arising from supervening and un- controllable force or accident, "^"^o Consequently, in that ease it was decided that the phrase did not cover injury to the prem- ises by leakage from an adjoining tenement owned by the land- 1057 Chamberlain v. Godfrey's That the tenant received a con- Adm'r, 50 Ala. 530', citing W^all v. siderable amount from insurance Hinds, 70 Mass. (4 Gray) 256, 64 has .been regarded as evidence that Am. Dec. 64, wbich is to an opposite the premises were so damaged as to effect. be unfit for occupancy within a 105S Lewis V. Hughes, 12 Colo. 208, clause of the lease. Meyer Bros. Drug 20 Pac. 621. Co. v. Madden, Graham & Co. (Tex. Under a covenant that in case the Civ. App.) 17 Tex. Ct. Rep. 908, 99 S. premises were partly destroyed by W. 723. Are, but not rendered wholly unten- losg New York Real Estate & Bldg. antable, the lessor should repair, Imp. Co. v. Motley, 3 Misc. 232, 51 but that If the premises were rend- N. Y. St. Rep. 864, 22 N. Y. Supp. ered untenantable, the rent should 705. cease till the premises were put in loeoper Bigelow, J., in Welles v, good repair, it was held that the Castles, 69 Mass. (3 Gray) 323. building as a whole must be unten- This language Is quoted with ap- antable in order that rent should proval In Tays v. Ecker, 6 Tex. Civ. cease. Kip v. Merwin, 34 N. Y. App. 188, 24 S. W. 954. Super. Ct. (2 Jones & S.) 531. I lg2 DESTRUCTION OF OR INJURY TO PREMISES. 1^(5 lord, and, in other cases in the same jurisdiction, that it did noc apply when the mill on the premises became useless owing to the rotten condition of the mUlwheel, which was not worth repair- ingioei or ij^hen the adjoining owner undermined the wall.^*'*^ In another jurisdiction, however, it was decided, in reference to the giving way of boilers on the premises while under a low pressure and with a moderate fire, that "there was in the rupture of the boilers a degree of unexpectedness, as of something un- forseen and not contemplated in the making of the contract, which makes it proper to regard it as an unavoidable casualty within the meaning of the proviso, "los* The fact that the building is condemned by the municipal authorities as unssife, owing to natural decay, does not constitute an "unavoidable casualty, "1084 ^or does the destruction of part of the bxiilding in the process of widening the street-^o^s In one case the question whether the flooding of the premises from a sewer, as shown by the evidence, constituted a "casualty," within a provision authorizing the termination of the lease in case the premises were rendered untenantable by fire or other casualty, was regarded as a question for the juryjio^e and whether the premises were rendered "uninhabitable" within a provision of the lease has likcAvise been so regarded.^"" A provision for the reduction of rent in case the premises "be rendered partially untenantable by fire or the elements ' ' has been held to refer to a sudden, unusual or unexpected action of the elements, such as a flood, tornado, and the like, and not to the natural and ordinary results of an efScient cause existing at the time of the demise, in this case the possibility of percolation of water from neighboring springs into the cellar of the build- ing.1068 1061 Bigelow V. Callamore, 59 Mass. loe? Goss Heating & Plumbing Co. (5 Cush.) 226. V. Oviatt, 60 Mo. App. 565. 1062 Kramer v. Cook, 73 Mass. (7 loes Harris v. Corlies, 40 Minn. 106, Gray) 550. 41 N. "W. 940, 2 L. R. A. 349. It 1063 Phillips V. Sun Dyeing, Bleach- is there said by Mitchell, J., "Every Ing & Calendaring Co., 10 R. I. 458. case of damage to or destruction of 1084 Tays V. Ecker, 6 Tex. Civ. App. human structures, not caused by 188, 24 S. W. 954. animal force, may, in one sense, be 1066 Mills V. Baehr's Exrs, 24 said to be caused by the elements, as. Wend. (N. Y.) 254. for example, ordinary gradual de- io66Miland v. Meiswinkel, 82 111. cay. But it would hardly be claimed App. 522. that such a ease would be within the 1206 DEFENSES TO RENT. § 182 That the injury to the premises leased was actually caused by water used in extinguishing a fire on adjoining premises has been held not to take the case out of a provision of the lease as to the rights of the tenant in case of damage to the premises by flre.1069 (d) Effect as terminating tenancy. Whether a clause exempt- ing the tenant from liability for rent in case of injury to, or destruction of, the building, has the effect of terminating the tenancy, or of merely suspending the obligation to pay rent till the premises are repaired or restored, is a question of construc- tion. A provision that the rent shall "cease" upon the de- struction of the building has, when availed of by the lessee, been regarded as absolutely terminating the lessee's interest in the premises,!^'''' and this is the effect, it seems, of a decision that in such ease the lease should be cancelled at the instance of the lessee.!"''! A clause providing that the rent shall be suspended upon the de- struction of the building until it is rebuilt has been regarded as terminating the tenancy on the landlord's election not to rebuild,!''^^ or on his election to build a different class of struc- meaning of the provisions of the and to surrender possession at the lease." end thereof, without the words "or 1069 Roman v. Taylor, 93 App. Dlv. sooner determination," and the lease 449, 87 N. Y. Supp. 653. provided for the cessation of rent in The fact that injuries from a fire case of the destruction of the build- were repaired by the landlord has ings, it was held that, though the been considered evidence suflacient rent ceased on such destruction, the to justify a finding by a jury that term was not thereby ended, and the the fire was not caused by the fault tenant could continue in possession or neglect of the tenant, so as to without paying rent, but still paying exclude the application of an exeep- taxes, whether or not liable there- tion to that effect in a clause ex. after for use and occupation, empting the tenant from further iny defects in the premises,^^'® and that this is so is attested by the numerous decisions at common law to the effect that even the destruction of the buildings will not have that 1150 Miller V. Benton, 55 Conn. 529, 15 N. E. 70, 2 Am. St. Rep. 362; 13 Atl. 678, 3 Am. St. Rep. 70. Fleischman v. Toplltz, 134 N. Y. 349, iir.1 Miller v. Benton, 55 Conn. 529, 31 N. B. 1089. 13 Atl. 678, 3 Am. St. Rep. 70. uss Boston Block Co. v. Buffing- 1152 See ante, note 1108. ton, 39 Minn. 385, 40 N. W. 361. 1153 Booraem v. Morris, 74 N. J. use That the untentable condition Law, 95, 64 Atl. 953. of the premises is no defense to rent, 1154 Smith V. Kerr, 108 N. Y. 31, see Elliott v. Aiken, 45 N. H. 30; 1220 DEFENSES TO RENT. § 182 effect."'*'' In one state, however, that of Michigan, it is appar- ently the law that, without the aid of any statute, the tenant may be relieved from rent on account of defects in the leased premises rendering them undesirable for purposes of occupancy, or, as it is usually expressed, "untenantable," an expression which is perhaps adopted from the New York statute before quoted,ii58 n hq^ being found in the common law authorities. In that state it was decided that the tenant could remove from the premises and refuse to pay rent, wheji the house thereon was so poorly constructed that it was impossible to keep it warm, and the plumbing was so defective as to generate sewer gas.^^*^ This case is approved in a later decision in the same state, on the ground that there the unhealthy condition of the premises ex- isted when the tenant entered, but it was said that the same rule did not apply when the premises became untenantable by reason of inherent defects, provided they were habitable when demised, and it was accordingly decided that the tenant was liable for rent during repairs "made necessary by the uses and changes of the building during the time ' ' the lessee aud his agent had control of the premises under that and previous leases.*^** In another case in that state it was decided that a covenant by thfi lessee that he had received the premises in good condition involved in effect a covenant by the lessor that they were so, and that if they were not so there was a "failure of considera- tion" which constituted a defense to an action for rent, if the lessee relinquished possession.^isi In a few other states an untenantable condition is regarded as justifying an abandonment of the premises by the tenant and a refusal to pay further rent, provided there is a covenant on the part of the lessor to make repairs, which imposes on him or his transferee the duty of remedying that condition.ii62 Jq England, Reeves v. McComeskey, 168 Pa. 571, 67 How. Pr. 76, which was properly 32 Atl. 96, and ante, § 86 a, at notes a casp of eviction by the landlord's 4-10; I 87 a. misuse of adjoining premises. See 1157 See ante, § 182 m (1). post, note 1197, and post, § 185 f (8), 1158 See ante, § 182 m (8). note 94 a. 1159 Leonard v. Armstrong, 73 neo petz v. Voight Brewery Co., Mich. 577, 41 N. W. 695. The court 116 Mich. 418, 74 N. W. 651, 72 Am. cites in support of It? decision St. Rep. 531. merely Bradley v. De Goicouria, 12 usi Tyler v. Disbrow, 40 Mich. 415. Daly (N. Y.) 393, 14 Abb. N. C. 53, iie2 See post, § 182 r (2). § 182 UNTENANTABLE CONDITION OF PREMISES. ^221 and it seems in Massachusetts also, it having been decided that the lease of a furnished house is subject to an implied condition that it shall be reasonably fit for habitation," «3 jf jt is not so fit at the commencement of the tenancy, the lessee may immedi- ately relinquish possession and refuse to pay rent."^* As before stated, an eviction, actual or constructive, is a de- fense to. the claim for rent,!^®^ and in some states this doctrine has been pushed to the extent that mere nonaction on the part of the landlord, consisting in his failure to make repairs for the purpose of removing unpleasant or deleterious conditions on the premises leased or on those adjoiniag them, not actually pro- duced by him, when followed by the tenant's relinquishment of possession, has been regarded as constituting an eviction for this purpose.i^^" So far as such conditions may in any case be actually produced by the landlord, the doctrine of constructive eviction is properly applicable,^!^'' but the extension of the doc- trine to the case of a mere failure to make repairs on the premises leased is, it is conceived, difficult to justify on principle. Oc- casionally a mere change in the mode of utilization of adjoining premises by the landlord, rendering the leased premises less desirable for the particular purpose for which the lessee took the lease, when followed by the tenant's relinquishment of possession, has been regarded as calling for an application of the same doc- trine in favor of the tenant.^^** (2) Under statutes. Usually the contention that the tenant is relieved from liability for rent, by reason of the existence of de- fects in the premises, has been based upon one of the local sta- tutes referred to above, as affording such relief in case of the destruction of the premises. The New York statute has been the subject of numerous decisions in this regard, not apparently always harmonious in their nature, and there are occasional de- cisions in other states construing the local statute in this regard. The provision of the New York statute, relieving the tenant from liability for rent in case the premises "be destroyed or be so injured by the elements or any other cause as to be untenant- able and unfit for occupancy," was originally construed as ref er- nes see ante, | 86 e. "se See post, § 185 f (4). 1164 See Wilson v. Finch Hatton, 2 ner See post, § 185 (a). Exch. Div. 336. iies See post, § 185 t (8), at note iMB See ante, § 182 e. 100. 1222 DEFENSES TO RENT. | 182 ring "to a sudden and total destruction by the elements, acting with unusual power, or by human agency," or "to a case of injury to the premises, short of a total destruction, occasioned in the same way. "^i*^ The same view has been taken in Ohio of a substantially similar provision, it being said that "the evident design of the act was to relieve the ignorant and inadvertant who might fail to protect themselves by special provision in their lease against the evil and mischief of the common law, which held the tenant liable for rent although the demised premises were de- stroyed by fire, flood, tempest or otherwise, unless he was exempt from liability by some express covenant in his lease," and that "the statute is designed rather to protect the lessee against an un- expected and unusual action of the elements or of human forces, causing a total destruction of the demised premises or an injury thereto only short of a total destruction, which the parties ignor- antly or inadvertantly failed to anticipate and provide against when the demise was made. "^i^" So, of the like provision of the Connecticut statute, it is said that "it applies only to cases where the building becomes untenantable by reason of some sudden and unexpected calamity ; as where it is wholly or partially destroyed by fire, water, or by a mob, or other like cause, "^I'^i and not where the condition is a result of a failure to make ordinary repairs.^ i'''' The above view of the New York statute, adopted in a subse- quent decision by the highest court, in which the fact that the premises were infected with disease was held not to involve an "injury" within the statute,ii''^ seems to have been abandoned in other decisions, though without, ordinarily, any express state- ment to that effect,^^'^* and in several decisions a condition of 1169 Suydam v. Jackson, 54 N. Y. Ohio St. 662, 52 Am. Rep. 99, per 450, 13 Am. Rep. 611. The opinion Dickman, J. of Earl, C, proceeds: "If the legis- "ti Hatch v. Stamper, 42 Conn, lature had intended to provide that 28. the tenant should cease to be liable iit2 Gulliver v. Fowler, 64 Conn, for rent when the premises from 556, 30 Atl. 852. any cause became so damaged or H73 Edwards v. McLean, 122 N. Y. out of repair as to be untenantable, 302, 25 N. E. 483. It would have been easy to have ex- iit4 in the majority opinion in pressed the intent in apt and proper Tallman v. Murphy, 120 N. Y. 345, 24 language." As following this case, N. E. 716, it is said that the state- see Lansing v. Thompson, 8 App. ment In Suydam v. Jackson, 54 N. Y. Div. 54, 40 N. Y. Supp. 425. 450, 3 Am. Rep. 611, in this regard, iiToHilliard v. Gas- Coal Co., 41 v/as not called for by the facts of § 182 UNTENANTABLE CONDITION OF PREMISES. 1223 the premises rendering them unsuitable for occupancy has been regarded as entitling the tenant to relief from rent, though the condition was evidently not the result of sudden and unexpected casualty, but rather of mere neglect on the part of the lessor or of a third person. Thus, a damp condition resulting from the percolation of water through the walls of the building,ii'^® or a damp and disagreeable condition created by a flow of water or drainage from adjoining premises,^!''* has been regarded as within the statute, that is, as an injury "by the elements or other cause," as these words are used therein. And a like de- cision has been made as regards an unhealthy and disagreeable condition produced by effluvia from a sewer.^i^'^ The New York statute does not apply, it is said, in a late case, if the defect existed before the lease was made,^i^* and in accordance with this view is an earlier decision that the tenant cannot relinquish possession, and so terminate his liability for rent, on account of noxious gases and odors resulting from de- fects in the plumbing, which existed at the time of the lease.^i^^ the • case, and the opinion is ap- uto Vann v. Rouse, 94 N. Y. 401. parently expressed that any condi- "77 Sully v. Schmitt, 147 N. Y. 248, tion affecting the premises which 41 N. E. 514, 49 Am. St. Rep. 659. can be regarded as rendering them See Krausi v. Fife, 120 App. Div. 490, "untenantable," if not caused by the 105 N. Y. Supp. 384. lessee's failure to make ordinary re- hts Meserole v. Hoyt, 161 N. Y. pairs, is within the statute. The 59, 55 N. B. 274; Prahar v. Tousey, decision is not, however, rested on 93 App. Div. 507, 87 N. Y. Supp. 845. this ground, but rather on the prin- in» Daly v. Wise, 132 N. Y. 306, 30 ciple of eviction. This, it has been N. B. 837, 16 L. R. A. 236. This case said, "was a case of an apartment does not refer to the statute of 1860, house, and the injuries to the de- but is based wholly on the authori- mised apartment were from aflSrma- ties to the effect that a landlord is tive causes outside such apartment under no obligation to the tenant but inside the building or appurten- as regards the condition of the prem- ant to it. The tenant had no con- ises at the time of the lease, trol over them. Thiey were charge- To the same effect, that defects ex- able to the landlord and were such isting at the time of the demise are a breach of the covenant of quiet not ground for relinquishment of enjoyment (which is implied if not possession and relief from rent, see expressed) as amounted to an evic- Zerega v. Will, 34 App. Div. 488, 54 tion." Per Gaynor, J., in Huber v. N. Y. Supp. 361; Watson v. Almirall, Ryan, 26 Misc. 428, 56 N. Y. Supp. 61 App. Div. 429, 70 N. Y. Supp. 662; 135. Bloomer v. Merrill, 1 Daly (N. Y.) ti73 Meserole v. Hoyt, 161 N. Y. 59, 485, 29 How. Pr. 259; Hays v. Moody, 55 N. E. 274. 2 N. Y. Supp. 385 ; Bon v. Watson, 24 1224 DEFENSES TO RENT. | 182 In the former of these cases, however, it is considered that the percolation of water into the cellar of the premises leased, mak- ing them unhealthy, is within the scope of the statute,!!*" al- though, it would seem, this must have been the result of defects in construction existing at the time of the lease. And in another recent ease, where the tenant of a room in a building relinquished* possession owing to the presence of an offensive sewer under the building, which was there at the time of the lease, the tenant was relieved from liability for rent on the ground that "by its (the sewer's) defective construction, it became a source of offense and possible danger, and the efforts which the tenant made tO' keep it in clean and reasonably fit condition were nul- lified by the refusal of the landlord to remedy the defect in con- struction, "i^*! The New York statute does not apply when the untenantable condition is the result of acts on the part of the landlord which it was, at the time of the lease, fully understood that he was to do."82 N. Y. St. Rep. 113, 4 N. Y. Supp. 872; refer to the statute, but is ia termS Dexter v. King, 28 N. Y. St. Rep. decided on the ground that the offen- 750, 8 N. Y. Supp. 489; Sherman v, sive condition of the sewer effected Ludin, 79 App. Div., 37, 79 N. Y. an eviction. Since the condition of Supp. 1066; Flannery v. Simons, 47 the sewer was the result of its use Misc. 123, 93 N. Y. Supp. 544. by the landlord, it seems to constl- iisoMeserole v. Hoyt, 161 N. Y. tute a clear case of eviction (see 59, 55 N. E. 274. In the decision of post, § 185 f 8), but it does not seem this case in the intermediate appel- that the mere "refusal of the land- late court (Meserole v. Sinn, 34 App. lord to remedy the defects in con- Div. 33, 53 N. Y. Supp. 1072), it is struction" would be suflSicient for said that such percolation of water this purpose. See next paragraph of involves an injury "by the elements" text. In Meserole v. Sinn, 34 App. within the statute. If "injury by Div. 33, 53 N. Y. Supp. 1072, it ia the elements" thus includes the ao- said that in Sully v. Schmitt, supra, tion of water causing dampness, it "the legal effect of the statute was would also, it seems, include the under consideration." Owing to the action of air causing decay, and in looseness with which the term "evio- fact it would include approximately tion" is frequently applied by the any deterioration of condition not courts, it is not always possible to directly the result of human interpd- say whether, when the term eviction sition. is used, an eviction at common law 1181 Sully V. Schmitt, 147 N. Y. is intended or an "untenantable" 248, 41 N. E. 514, 49 Am. St. Rep. condition under the statute. 659. This case does not, however, "sz Alsheimer v. Krohn, 45 How. § 182 UNTENANTABLE CONDITION OP PREMISES. 1226 Under the California statute, authorizing the tenant, on the landlord's refusal to repair, to make the necessary repairs, not to exceed one month's rent, or to vacate the premises, the tenant, if he remains in possession after the landlord's refusal to repair, without himself making the repairs, cannot refuse to pay rent," 83 ^or can he relinquish possession and thereby re- lieve himself from liability for rent without first giving notice to the landlord to repair." »* It has been decided, under the Minnesota statute," ss that a tenant from month to month, by retaining possession after the first of any month, is not precluded from relinquishing possession during the month and refusing to pay rent, if he does so upon the occurrence of conditions rendering the premises untenant- able, which did not exist at the commencement of the month,"88 although he is so precluded if the conditions complained of did exist at the commencement of the month." *^ In view of the fact that the New York statute, and other statutes modeled thereon, apply in terms only when a "build- ing" is "destroyed or so injured" as to be untenantable, it is difficult to see how, in any case, the untenantable condition of the premises can be ground for relieving the tenant sinless this condition results from the destruction of or injury to the building. On this view, the presence of odors or dampness, or the occasional flow of water on the premises, although this renders the premises untenantable, would not bring the case within the statute, unless the premises leased are by one of such causes so injured as to be untenantable. That is, there should, by the terms of the statute, be an injury to the building, and injury to the tenant's right of enjoyment merely would seem to be insufficient. But apparently opposed to this view are decisions that dampness caus- ed by percolation through the walls,^^** and the occasional flow of water on the demised premises without, apparently, causing any Pr. (N- Y.) 127, where the tenant uss See ante, note 1103. agreed to retain possession and pay "sa Bass v. Rollins, 63 Minn. 226, rent, although knowing that the 65 N. W. 348; Damkroger v. Pear- Tionse on the premises was to he re- son, 74 Minn. 77, 76 N. W. 960. moved. ^'^" Flint v. Sweeney, 49 Minn. 509, 1183 Moroney v. Hellings, 110 Cal. 52 N. W. 136. 219, 42 Pac. 560. "ss Meserole v. Hoyt, 161 N. Y. 59, 1184 Green v. Redding, 92 Cal. 548, 55 N. B. 274. 28 Pae. 599. 1226 DEFENSES TO RENT. § 182 particular injury to the premises themselves, but merely affecting the comfort of occupancy,^ i*® bring the case within the statute, so as to afford relief to the tenant. In order that the teoant may avail himself of the ''untenant- able" condition of the premises, under the statute, as a defense to rent, although this condition is the result not of unforeseen casualty, but of causes of a gradual operation, it is necessary, it seems, as when the premises are destroyed by fire,^*^" that the tenant relinquish possession of the premises, i^^i this according with the language of the statute. The fact that the premises are rendered untenantable by the use made of adjoining property by a third person, without the connivance of the landlord, has been decided not to bring the case within the New York statute so as to enable the tenant to relinquish possession.i^^^ So far as the untenantable condition may be caused by the maintenance by the landlord of a nuisance, properly so termed, on the premises adjoining those leased, the tenant, if he leaves on account thereof, may properly, it seems, be regarded as evicted, and so relieved from liability for rent, without reference to the existence vel non of any statutory provision.ii'-*^ (3) Specific conditions. Among specific conditions affecting the utility or enjoyability of the premises, which have been at different times asserted as a defense to a claim for rent, that arising from the presence of sewer gas has perhaps most frequent- ly been the subject of consideration. In Michigan it has appar- ently been decided, without reference to any statute, that the tenant has the right to assert this as a defense, if the gas is caused by defects in the plumbing which existed at the time of the lease."9* In New York, on the other hand, it has been 1189 Vann v. Rouse, 94 N. Y. 401; pare Tallman v. Murphy, 120 N. Y. Damkroger v. Pearson, 74 Minn. 77, 345, 24 N. E. 716, ante, note 1174. 76 N. W. 960. 1193 See post, § 185 f (8), at notes 1190 See ante, § 182 m (8) (f). 95-99. 1191 See Davis v. Banlts, 32 N. Y. 1194 Leonard v. Armstrong, 73 Super. Ct. (2 Sweeney) 184; Gold- Mlcli. 577, 41 N. W. 695, ante, note berg V. Lloyd, 110 N. Y. Supp. 530. 1159. But sewer gas, or any other 1192 Floyd-Jones v. Schaan, 109 N. objectionable condition, was held Y. Supp. 362 (by two judges to one) ; not to be ground for relieving the Brick V. Favilla, 51 Misc. 550, 101 tenant from rent, unless the land- N. Y. Supp. 970 (semble). Com- lord had notice of its presence, dt § 182 UNTENANTABLE CONDITION OF PREMISES. ]227 decided that the presence of such gas does not give the tenant this right, if the defects in the plumbing existed at the time of the lease.11^5 It has ordinarily been decided, in the lower courts of the latter state, without reference to whether the defects in the plumbing existed at the time of the lease, that sewer gas, caused by defects in the plumbing on the premises leased, did not justify the tenant in vacating and refusing to pay rent;ii®' while on the other hand, if the defective plumbing was not on the leased premises but was in a part of the building retained by the landlord, there was a constructive eviction by reason of the landlord's maintenance of a nuisance of that character on prem- ises adjacent to those leased, if the tenant left as a result of such nuisance. ^1®^ In one case, however, it seems to have been decided that the presence of noxious odors on the premises, caused by defects in the plumbing, resulting during the tenancy from external causes, made the premises untenantable within the statute, without reference to whether the defects were on the premises leased or in that part of the building retained by the landlord;^!'* and in another, that where the landlord, by agree- unless the tenant's vacation of the 902, on the case of Bradley v. De premises was on account thereof. Goicouria, supra. Holmes v. Wood, 88 Mich. 435, 50 N. In Krausi v. Pife^ 120 App. Div. W. 323. 490, 105 N. Y. Supp. 384, it was de- 1195 Daly V. Wise, 132 N. Y. 306, 30 cided, without mention of the stat- N. E. 837, 16 L. R. A. 236, afg. 15 ute, that there was an eviction if the Daly, 431, 7 N. Y. Supp. 902. tenant of an apartment relinquished ii!>8 Coulson v. Whiting, 14 Abb. possession because the plumbing of N. C. (N. Y.) 60; Sutphen v. Seebas, the house was so defective that 14 Abb. N. C. (N. Y.) 67, note, 12 waste water from another apart- Daly 139; Chadwick v. Woodward, ment flowed into the bath tub, and 13 Abb. N. C. (N. Y.) 441. that sewer gas was emitted, and no 1197 Bradley v. De Goicouria, 12 hot water was obtainable from the Daly (N. Y.) 393, 67 How. Pr. 76, 14 faucet. Abb. N C. 53; St. Michael's P. E. nas Lathers v. Coates, 18 Misc. Church v. Behrens, 13 Daly (N. Y.) 231, 41 N. Y. Supp. 373. The deci- 548- Marks v. Dellaglio, 27 Misc. sion might well have been based, as 652' 59 N. Y. Supp. 707; Id., 56 App. are the cases in the preceding note, Div. 299, 67 N. Y. Supp. 736; Mc- on the theory of an eviction by the Curdy v. Wyckoff, 73 N. J. Law, 368, landlord's maintenance of a nui- 63 Atl. 992. See Sutphen v. Seebas, sance on his own premises, since the 14 Abb. N. C. (N. Y.) 67, note, 12 defects in the plumbing were Daly, 139, and the comments in Daly throughout the building. V. Wise, 15 Daly, 431, 7 N. Y. Supp. • 1228 DEFENSES TO RENT. § 182 ment, put sewer pipes and drains in the dwelling leased^ which were so defectively constructed as to render the premises un- healthy, his refusal to remedy the defects upon request amounted to a constructive eviction.^*** The dampness of the leased premises does not in inself prop- erly constitute an evictionji^"" though if this is the result of particular conditions maintained by the landlord on adjoining premises, he may be regarded as maintaining a nuisance, which, if resulting in the tenant's relinquishment of possession, effects an eviction excusing the payment of rent.^^oi j^j^j {^ seems to have been decided that dampness, resulting from the percolation of water into the premises, may cause an untenantable con- dition within the meaning of the New York statute.^202 ^ ^Q^y of water or of drainage upon the leased premises, owing to de- fects in the plumbing of that part of the building of which the lessor retains the control, has been decided to constitute an "untenantable" condition vnthin this statute,!^'*^ ^s well as within the similar statute of Minnesota,i204 though in these cases the tenant might as well, it seems, have been relieved from rent 1198 Thallieimer v. 'Lempert, 17 N. 1200 Truesdell v. Booth, 6 Thomp. Y. St. Rep. 346, 1 N. Y. Supp. 470. & C. (N. Y.) 379, 4 Hun. 100. That The case cites Alger v. Kennedy, 49 dampness is no defense to the claim Vt. 109, 24 Am. Rep. 117, to the for rent, see Murray v. Albertson, 50 effect that "when the premises be- N. J. Law, 167, 13 Atl. 394, 7 Am. St. come untenantable by reason of the Rep. 787, where the question of the failure of the lessor to do what is obligations of a lessor at common lawfully required of him, the effect law as to the condition of the prem- is eviction which permits the lessee ises is fully considered, to leave them." This Is not a cor- 1201 Alger v. Kennedy 49 Vt. 109 rect statement of the decision in the 24 Am. Rep. 117, ante note 1199. latter case, which was that if the 1202 Meserole v. Hoyt 161 N. Y. 59 leased premises were rendered un- 55 n. E. 274. safe by the condition of the adjoin- 1203 Vann v. Rouse 94 N Y 401- ing premises controlled by the les- st. Michael's Protestant Episcopal sor, it was immaterial whether this church v. Behrens, 13 Daly, 548, 1 condition was the result of the act ^ ^ of the lessor in depositing water ^ , ^ ^ y. j. yj^. iv. and filth there, or of hi. "default" in ^^^' ^"^^ ^- Kavanagh, 24 How. Pr. failing to remove it. This seems to ^^- '*"> ^47; Goldberg v. Lloyd. 110 involve merely a decision that the ^'^- ^- Supp. 530. maintenance of a nuisance may con- ^^"^ Damkroger v. Pearson, 74 Bist of an act of omission as well Minn. 77, 76 N. W. 960. as of commission. § 182 UNTENANTABLE CONDITION OF PREMISES. 1229 CKEL the ground of a constructive eviction by the maintenance of a nuisance by the landlord.^*"* There are in New York occasional dicfa,i205a ^nd also two decisions by an intermediate court,^^'"*'' that although there is no express contract by the landlord to furnish heat, nevertheless, if the means of supplying heat are, as ordinarily is the case when an apartment is leased, in the possession and control of the landlord, there is an obligation upon him to supply heat, to the extent that the tenant is entitled to relinquish possession and refuse to pay rent if heat is not supplied. It has apparently been decided in New York that where a building was shaken by explosions cracking the walls and ceilings and breaking articles therein, and the building inspector declared the building to be dangerous, and the rooms were at times filled with smoke and coal gas so as to make the inmates sick, it was a question for the jury whether an apartment in the building was "untenantable" and '"unfit for occupancy" so as to author- ize the tenant to vacate under the statute.i^oe j^(j ^ jjjjg view 1205 See post, § 185 £ (8). deprived of his rigliL to tlieir bene- 1205a Tallman v. Murpby, 120 N. T. ficial enjoyment, he may abandon 345, 24 N. E. 716; Ryan v. Jones, 2 the premises and successfully inter- Misc. 65, 20 N. Y. Supp. 842; Jack- pose as a defense to a demand for son v. Paterno, 58 Misc. 201, 108 N. subsequently accruing rent that he Y. Supp. 1073. In Jackson v. Pat- was evicted by the landlord." In erno, 128 App. Dlv. 474, 112 N. Y. reference to this statement it may Supp. 924, while it is stated that the be said that, apart from the ques- tenant of an apartment may re- tion of the propriety of calling such llnquish possession for this cause, it a mere act of omission on the part is at the same time decided that, not of the landlord an "'eviction," the having done so, he could not sue as covenant for quiet enjoyment has for breach of a covenant to heat, never elsewhere been regarded as there being no express agreement to entitling the tenant to any particu- furnish it. l^r physical comforts and conven- In Rxan v. Jones, 2 Misc. 65, 20 N. iences apart from his exemption Y. Supp. 842, supra, it is said that from disturbances. the circumstances "constituted the 1205b O'Gorman v. Marby, 18 Misc. adequate supply of heat by the land- 228, 41 N. Y. Supp. 521; Butler v. lord an integral part of his coven- Newhouse, 85 N. Y. Supp. 373. ant that during the term demised 1206 Tallman v. Murphy, 120 N. Y. the tenant may quietly have, hold 345, 24 N. B. 716. An alternative and enjoy the premises; and that ground stated for the decision Is an for the breach of It, whether due to eviction by the maintenance of a acts of omission or of commission, nuisance by the landlord In the whereby the tenant is substantially shape of a defective water tank 1230 DEFENSES TO RENT. | 182 was taken when there was a continuous and strong smell of smoke and burning wood, which made the tenant of an. apartment in the building and his family apprehensive of fire and deprived them of sleep, it being the result of the mode of placing the steam boiler in the building.1207 Qn the other hand, the fact that the premises are infected with disease does not, it has been held, bring the case within the New York statute, though this renders them temporarily unsafe for occupancyj^^*** nor does it involve an eviction, actual or constructive.!*"^ Inconvenience of an ordinary character, experienced by the tenant of an apartment, as where the janitor was neglectful and troublesome, and the water supply was occasionally stopped owing to a break in a pump, was held not to justify the tenant in leav- iing.1210 ^n^ iiiQ same view was taken of deterioration in the management of a restaurant in the building, which was not refer- red to in the lease, though this forbade cooking in the apart- ment. ^^i^ The presence of bugs on premises leased for residenci? purposes has likewise been so regarded.^^^^ o. Unfitness of premises for particular purpose. The "unten- antable" condition of the premises which, as above stated, will in some states relieve the tenant from liability for rent, appar- ently refers to a condition of the premises rendering them un- suitable for the purposes which the landlord had reason to sup- pose the lessee had in view in taking the lease.1213 Apart from wtich caused the explosions, and the disease. The court says that ot defective heating arrangements actual negligence on his part in per- whlch caused the smoke and gas mitting the Introduction of con- complained of (see ante, note 1174), tagion might be regarded as au and this seems sufficient for the eviction, as might the omission to purpose of the decision. take precautions to prevent its 1207 Tallman v. Earle, 3 Misc. 6, 23 spread through parts of the building N. Y. Supp. 17. of which he retained control. 1208 Edwards v. McLean, 122 N. Y. 1210 Humes v. Gardner, 22 Misc. 302, 25 N. E. 483. 333, 49 N. Y. Supp. 147. 1=09 Majestic Hotel Co. v. Eyre, 53 1211 Gale v. Heckman, 16 Misc. 376, App. Div. 273, 65 N. Y. Supp. 745. 38 N. Y. Supp. 85. There an outbreak of disease oc- 1212 Pomeroy v. Tyler, 9 N. Y. St. curred in a hotel in which the de- Rep. 514; Jacobs v. Morand, 110 N. fendant had taken a lease of an Y. Supp. 208. apartment, and the landlord was 1213 in Adams v. Werner, 120 Mich, guilty of no negligence in admit- 432, 79 N. W. 636, it is said that ting or in preventing the spread of where the continued use of a build- § 182 UNFITNESS (0F PREMISES FOR PARTICULAR PURPOSE. 1231 the statutes and decisions referred to there are a few cases in which, without the use of the expression "untenantable," the effect of the unsuitability of the premises to the lessee's pur- poses as a defense to rent has been the subject of decision, and these may here be appropriately referred to. The general rule, before stated,^ 2** that the landlord owes no obligation to the tenant as to the condition of the premises, would seem to control in this regard. It has accordingly been decided that it is no defense to the claim for rent that, owing to statutory or municipal regulations, the lessee cannot carry on the particular business for which he took the Iease,i2i5 and this has been decided to be so, even though the lease expressly pro- hibited the use of the premises for any other purpose.i^^^ And so, having agreed to pay rent, the lessee cannot refuse to do so because the water in a spring on the premises becomes polluted, though he took the lease in order to obtain a supply of pure water,i2i7 nor is he relieved from liability by failure of the supply of water by which the land is irrigated, so as to render it un- cultivable.^218 Likewise, the fact that access to the water front ffom the leased premises is cut off by the action of the municipal authorities constitutes no defense to the claim for rent.^^^* One who takes a lease, with the right of extracting a particular mineral from the land, is not relieved from rent because none of such mineral is found.'^ao ^nd if one has stipulated to pay a ing "for the purpose for which it is Keenan, 99 Tex. 79, 13 Tex. Ct. Rep. rented" is made practically impos- 251, 88 S. W. 197. sible hy the fault of the landlord, the 1217 Jones v. Springfield Water- tenant may terminate the lease, works Co., 65 Mo. App. 388. Compare cases cited ante, notes 1159- 1218 Stevens v. Wadleigh, 6 Ariz. 1161. In this case the decision 351, 57 Pac. 622. might have been based on the theory That the building threatened to of eviction, since the landlord him- fall when the lessee used it for stor- self Injured the roof so as to expose age purposes, for which it evidently the interior to rain and snow. was unfit, did not justify him in re- 1214 See ante, § 87 a. linquishing possession and refusing 1215 Kerley v. Mayer, 10 Misc. 718, to pay rent. Murrell v. Jackson. 33 31 N. T. Supp. 818; Miller v. Ma- La. Ann. 1341. guire, 18 R. I. 770, 30 Atl. 966; 1210 Lyman v. Snarr, 9 U. C. C. P. Baughman v. Portman (Ky.) 14 S. 104. W. 342; Samuel v. Scott, 13 Phila. 1220 Abbot v. Smith, 19 D. C. (8 (Pa.) 64. Mackey) 600. 12^6 Houston Ice & Brew. Co. v. A lease of land "upon which is 1232 DEFENSES TO RENT. § 182 certain royalty on the minerals mined to aggregate at least a minimum rent, he must pay such rent, though he cannot mine sufficient to equal it at the rate of royalty named.^^^* The fact that premises adjoining those leased, belonging to a person other than the lessor, are so improved by the erection of buildings as to render the premises leased less commodious or less suitable for the purposes of the tenant under the lease, does not enable him to relinquish possession and refuse to pay rent.^*^* He takes his lease subject to the possibility of such a contingency, as would a grantee in fee. In a number of cases, the fact that the use made of adjoining premises by the landlord is such as to interfere to some extent with the use of the premises for the purpose for which the lease was obtained has been regarded as justifying the tenant in relinquishing possession, and in asserting an eviction in defense to a claim for rent, and in some cases a mere cessation by the landlord of his use of the adjoining premises in a particular way, operating to the disadvantage of the tenant, has been regarded as justifying an abandonment by the latter. These cases will be referred to in the course of our discussion of the subject of eviction.1223 p. Lack of repair. We will in a subsequent place,i223a (.qh. sider the question whether the noncompliance by the lessor with a covenant on his part to make repairs justifies the tenant in refusing to pay rent. We will now consider whether, in the absence of any such covenant by the lessor, the lack of necessary repairs upon the premises can in any case justify such action on the part of the tenant. If the duty of repair is assumed by the tenant, by the express terms of the lease or by a valid extrinsic agreement, he cannot, it seems clear, repudiate his obligation to pay rent on the ground an Iron bank" does not involve a Y. 280; Hilliard v. New York & warranty that there is merchantable Cleveland Gas Coal Co., 41 Ohio St. Iron on the bank, so as to relieve 662, 52 Am. Rep. 99; McMullen v. from rent if there is no such Iron. Moffit, 68 111. App. 160; Baylies v. Clark V. Midland Blast Furnace Co., Philadelphia & Reading Coal & Iron 21 Mo. App. 58. Co., 32 N. Y. St. Rep. 315, 10 N. Y. 1221 Bute V. Thompson, 13 Mees. & Supp. 316; Seymour v. Hughes, 55 "W. 487; McDowell v. Hendrix, 67 Misc. 248, 105 N. Y. Supp. 249; 7la.tr Ind. 513. But the lease may call for lett v. Powell, 30 Pa. 293. a different construction. See Smiley 1223 See post, § 185 f (8). V. McLaughlin, 138 Mass. 363. 1223a See post, § 182 r (2). 1222 Johnson v. Oppenheim, 55 N. § 182 LACK OF REPAIR. 1233 of an untenantable condition of the premises which wonld not have existed had he performed his agreement.^^^* Iq case neither the landlord nor the tenant agrees to make repairs, the duty of making repairs to the extent of keeping the premises wind and water tight seems to be, by the weight of authority, as we have before seen, upon the tenant,^^^^ though in some cases the obligation of the tenant as regards the making of repairs is differently expressed, as when it is said that he has the burden of making "ordinary repairs. "i*^* So far as the tenant is by law under an obligation to repair, the absence of re- pairs can evidently not excuse him from the payment of rent. Accordingly, it is said that the tenant cannot relinquish posses- sion and so relieve himself from liability for rent, by force of the New York statute,^**'^ merely because of the lack of "ordinary repairs" to the premises.^ 2** On the other hand, in one or two cases in New York, when the lease contained no covenant on the part of either of the lessor or lessee to make repairs, the lessee or his assignee was regarded as entitled to relinquish possession, and so relieve himself from liability for rent, on account of an untenantable condition which might have been prevented by the prompt making of repairs, the necessary repairs being, how- ever, it seems, of an extraordinary and. not of an ordinary char- acter.' ^^^ These cases seem to be to the effect that there is 1224 Barrett v. Boddle, 158 111. 479, Y. Supp. 470; Sherman r. Ludln, 79 42 N. B. 143, 49 Am. St. Rep. 172; App. Div. 37, 79 N. Y. Supp. 1066. Thomas v. Nelson, 69 N. Y. 118; In Connecticut, likewise, it is said Crawford v. Redding, 8 Misc. 306, 28 that "the statute manifestly has no N. Y. Supp. 733; Sutphen v. Seebas, reference to ordinary repairs, such 12 Daly {N. Y.) 139, 14 Abb. N. C. as the lessee at common law is 67, note; Goldberg v. Lloyd, 110 N. bound to make." Hatch t. Stamper, Y. Supp. 530. See Huber v. Baum, 42 Conn. 28. The opinion goes on, 152 Pa. 626, 26 Atl. 101. however, to state that the statute 1226 See ante, § 113, at note 893. applies only when the building be- 1228 See ante, , § 113, at notes 877- '^°^^^ untenantable by reason of o_» some sudden and unexpected calam- 122? See ante, note 1101. ity. See ante, note 117L „ „ ' ,, ,. ,oA TVT V III Oakley v. Loening, 8 Misc. 302, i.2sTallmaa r. Murphy, 120 N. Y. ^3 ^_ ^ g^^j, ,^,^ ^^ ,„ ^^^^ 345, 24 N. B. 716; Suydam v. Jack- ^, ^^^^j^^ ^^ ^^^ ,^^^ p^^^^^^ son, 54 N. Y. 450, 13 Am. Rep. 611; jg regarded as being upon the ten- Meserole v. Siijn, 34 App. Div. 33, 53 ant, so that he cannot Brandon for N. Y. Supp. 1072; Thalheimer v. lack of repairs. Lempert, 17 N. Y. St. Rep. 346, 1 N. 1229 Meserole v. Hoyt, 161 N. Y. Ih uid Ten. 78. 1234 DEFENSES TO RENT. § 182 a certain class of repairs, not "ordinary," the landlord's failure to make which, upon the premises leased, will relieve the tenant from liability for rent, provided there exists, in the particular jurisdiction, a statute making an untenantable condition of the premises ground for nonpayment of rent, and provided further there exists, by reason of the failure to make such repairs, an "untenantable" condition.i^so Qn the other hand, if the con- tinuance of the untenantable condition results from the failure to make "ordinary" repairs, or if it could be removed by the making of such repairs, the fault is, it seems, that of the tenant, and he is not entitled to relief from rent. As to what are ordinary repairs which the tenant is bound to make, the cases give little satisfaction. It has been decided that the mending of leaks in the roof involves repairs of this character,^ ^'^ while a different view has been taken with regard to the repair of defects in the original construction of water and heating appliances, put in by the landlord under special agreement with the tenant.^ ^^^ Ke- pairs necessary to render the premises wind and water tight are, it seems, for the tenant rather than the landlord to make.i^ss In a number of the cases in which the tenant has been relieved 59, 55 N. B. 274 (percolation of wa- 54 N. Y. 450, and also the case of ter through walls) ; Thalhelmer v. Hatch v. Stamper, 42 Conn. 28. In Lempert, 17 N. Y. St. Rep. 346, 1 N. Flint v. Sweeney, 49 Minn. 509, 52 Y. Supp. 470 (sewer gas from defec- N. W. 136, it seems to be considered tive plumbing) ; Lathers v. Coates, that an untenantable condition of 18 Misc. 231, 41 N. Y. Supp. 373 the premises resulting from leajts in (ditto). In the last case it is de- the roof was ground for the tenant's cided that if the landlord fails to abandonment, presumably under the make repairs with reasonable dill- statute. gence on being notified by the ten- 1232 Thalheimer v. Lempert, 17 N. ant that he will leave if the repairs Y. St. Rep. 346, 1 N. Y. Supp. 470. It are not made, he cannot, by com- is there said by Bradley, J., that mencing repairs before the tenant ordinary repairs "are those of restor- has in fact left, deprive him of the ation, and such as are required to right to leave. preserve the property in the condi- 1230 See Prior v. Sanborn County, tion it was placed by the landlord, 12 S. D. 86, 80 N. W. 169, constru- with proper allowance for deprecia- ing the local statute, ante, note 1112. tion by use and the effects of time 1231 Lynch V. Sauer, 16 Misc. 1, 37 upon it. This does not embrace the N. Y. Supp. 666. And see, to this modification or completion, if un- effect, the remarks in Tallman v. completed, or defective construc- Murphy, 120 N. Y. 345, 24 N. B. 716, tion." upon the case of Suydam v. Jackson, 1233 See ante, § 113. § 182 MAKING OF REPAIRS. 1235 from rent, on account of the untenantable condition of the premises, this condition was the result of a failure to make repairs, not on the leased premises, but on adjoining premises, usually other parts of the same building.1234 ^g ^o such repairs, the ten- ant is under no obligation, and consequently no question can arise as between his duty to make repairs on the leased premises and his right to relinquish possession for lack of repairs on the adjoining premises. In view of the general rule, that the landlord owes no obliga- tion to the tenant as to the condition of the leased premises,i23B it seems that, in the absence of any express agreement, or of a statute, such as that of New York, which is apparently construed to relieve the tenant from liability for rent on account of an untenantable condition, a mere lack of repair is not a thing which can be charged against the landlord, so as thus to relieve the tenant, and it has been so decided.^^^® The landlord's failure to make repairs rendered necessary by the negligence of the tenant is evidently no justification for the tenant's refusal to pay rent,^^*^ and the same has been decided to be the case when such failure was the result of obstacles in- terposed by the tenant.^ ^ss Tjjg fg^^^^ indeed, that the tenant has the right to exclude the landlord's entry for the purpose of making repairs,* *^^ seems g, strong reason why, in the absence of a provision authorizing repairs, a mere lack of repair should not expose the landlord to the possibility of losing his rent. q. Making of repaiirs, The fact that the premises are tempor- 1234 Sec Tallman v. Murphy, 120 N. had the right to leave on accoun*: of Y. 345, 24 N. E. 716; Vann v. Rouse, the landlord's failure to repair the 94 N. Y. 401; Sully v. Schmltt, 147 roof of the building, it being con- N. Y. 248, 41 N. B. 514, 49 Am. SL sidered that there was an implied Rep. 659, and ante, § 182 n (3). covenant on his part to do this. 1235 See ante, § 87 a. i^a' Robinson v.'Henaghan, 92 111. i236Lockwood V. Lockwood, 22 App. 620. In Parmele v. Pulvola Conn. 425; Moffatt v. Smith, 4 N. Y. Chemical Co., 31 Misc. 818, 64 N. Y. (4 Comst.) 126 (before the statute Supp. 1119, it is apparently decided of 1860) ; Watson v. Moulton, 100 that the tenant has no such right if. III. App. 560; Roth v. Adams, 185 by the terms of the lease, he has a Mass. 341, 70 N. EJ. 445. See Huber right to make the repairs at the ex- V. Baum, 152 Pa. 626, 26 Atl. 101, and pense of the landlord, cases cited post, note 1243. "ss Vincent v. Frelleh, 50 La. Ann. In Bissell v. Lloyd, 100 111. 214, it 378, 23 So. 373, 69 Am. St. Rep. 436. was held that the tenant of a room i^'s See ante, § 3 b. 1236 DEFENSES TO RENT. S 182 arily made unsuitable for use or occupancy, owing to the making of repairs by the landlord, by agreement with or permission of the tenantj^^*" or by the tenant himself, in order to make them better suited to his purposes,^ 241 ^oes not relieve the tenant in whole or in part from the payment of rent. If, however, the landlord, entering by the tenant's consent for the purpose of making repairs, fails to exercise diligence in carrying them through to' completion, and thus in effect deprives the tenant of the use of the premises, the tenant, relinquishing possession in consequence thereof, might perhaps be regarded as evicted, and so entitled to a suspension of rent.^^*^ r. Breach of covenant or other contract by landlord — (1) De- pendent and independent covenants. The question whether the breach of a particular covenant or stipulation by the landlord is a defense to the claim for rent is in its nature one to be de- termined by reference to the intention of the parties, as expressed in the lease. That is, if a particular stipulation by the landlord, and that by the tenant for the payment of rent, are ' ' dependent, ' ' then the nonperformp,nee by the landlord is a defense to the claim for rent, while it is otherwise if the stipulations are "inde- pendent." This is merely an application of a general principle 12-10 Cook V. Anderson, 85 Ala. 99, 6, it was decided that when the les- 4 So. 713; McClenahan v. New York, see agreed that the lessor should 102 N. Y. 75, 5 N. E. 793 ; Kellenberger have possession for two months in V. Foresman, 13 Ind. 475; Chambers order to make repairs, and all the- V. Mattihgly (Tex. Civ. App.) 19 premises were not put in condition Tex. Ct. Rep. 643, 103 S. W. 663. See for occupancy within that time, the Mittelstadt v. Wulfers, 1 Misc. 215, tenant, occupying so much of the 20' N. Y. Supp. 880, and Petz v. Voigt premises as were In such condition, Brewery Co., 116 Mich. 418, 74 N. W. was entitled to an apportionment of 651, 72 Am. St. Rep. 531, supra, note rent. 1160. In Wayne v. Lapp, 180 Pa. 278, 38- 1241 Peck V. Ledwidge, 25 111. IM; Atl. 723, the tenant was regarded as Kellenberger v. Foresman, 13 Ind. entitled to a reduction of rest ap- 475; Hoover v. United States, -3 Ot. parently for the reason that, after Gl. 308. having been induced to enter by tha 1242 In Dexter v. King, 28 N. Y. St. landlord's promise to have a barn re- Rep. 750, 8 N. Y. Supp. 489, it was built by harvest time, the latter held that a week's delay by the land- failed to do so and deprived him lord's plumber in finishing repairs of the use of part of the property at did not constitute an eviction, the that time for the purpose of re- landlord not knowing of the delay. building: In Kelly v. Miles, 48 Hun (N. Y.) § 182 BREACH OF COVENANT. 1237 applicable to all contracts or instruments containing executory stipulations by both parties. (2) Contract to make repairs or improvements. Considering first, in this connection, the landlord's covenant to make repairs or improvements upon the leased premises, the deeisioois are generally to the effect that this covenant, and that for the pay- ment of rent, are independent, and that consequently its breach by the landlord will constitute no defense to the claim for rent.^243 The tenant's remedy for such breach is either himself to make the repairs or improvements and recover their value,!^^^ or, perhaps, to assert his outlay as a payment pro tanto on the rent,* 2*^ or, without making the repairs, to assert a claim for damages resulting from the breach of covenant, either by a cross aetion^^** or by way of set-off or recoupment.i^^T 1243 Surplice v. Farnsworth, 7 Va. 476, 44 S. B. 149, 61 L.. R. A. 957. Man. & G. 576; Wilkes v. Steele, 14 In Knox v. Hexter, 71 N. Y. 461, U. C. Q. B. 570; Central Appalachian it was decided that the lessee could Co. V. Buchanan (C. C. A.) 73 Fed. not set up In defense to an action 1006; Hair v. Smith, 16 Minn. 58 for rent that the lessor failed to fln- (Gil. 46) ; Long v. Gieriet, 57 Minn, ish the building so as to allow of 278, 59 N. W. 194; Meredith Me- the lessee's entry by the time stipu- chanic Ass'n v. American Twist lated, if the lessee had already Drill Co., 67 N. H. 450, 39 Atl. 330; claimed and recovered damages for Lewis & Co. V. Chisholm, 68 Ga. 40; breach of the lessor's covenant to Young V. Burhans, 80 Wis. 438, 50 N. so finish the building, without any W. 343; Watters v. Smaw, 32 N. C. deduction for rent, this amounting (10 Ired. Law) 292; Rubens v. Hill, to an election by the lessee to treat 213 III. 523, 72 N. B. 1127; Baird v. the covenants as independent. Evans, 20 111. 30; Clark v. Ford, 41 1244 gee ante, § 87 d (7), § 87 e 111. App. 199; Obermyer v. Nichols, (S). 6 Bin. (Pa.) 159, 6 Am. Dec. 439; 1245 See ante, § 177 g. Prescott V. Otterstatter, 85 Pa. 534; 1246 gee ante, § 87 d (9), § 87 e Bradley v. Citizens' Trust & Surety (10). Co., 7 Pa. Super. Ct. 419; Tibbits v. 1=47 whitbeck v. Skinner, 7 Hill Percy, 24 Barb. (N. Y.) 39; Ellis v. (N. Y.) 53; Cook v. Soule, 56 N. Y. McCormick, 1 Hilt. (N. Y.) 313; 420; Ely v. Fahy, 79 Hun, 65, 29 N. Plant V. Hernreich, 19 Misc. 308, 44 Y. Supp. 667; Sheary v. Adams, 18 N. Y. Supp. 477; Newman v. French, Hun (N. Y.) 181; Hexter v. Knox, 39 45 Hun (N. Y.) 65; McCuUough v. N. Y. Super. Ct. (7 Jones & S.) 109; Cox, 6 Barb. (N. Y.) 386; Douglas v. Meredith Mechanic Ass'n v. Ameri- Che'esebrough Bldg. Co., 56 App. Div. can Twist Drill Co., 67 N. H. 450, 39 403 67 N. Y. Supp. 755; Smith v. Atl. 330; McFarlane v. Pierson, 21 Wiley 60 Tenn. (1 Baxt.) 418; Ar- 111. App. 566; Bostwick v. Losey, 67 benz V. Exley, Watkins & Co., 52 W. Mich. 554, 35 N. W. 246; Keating v. 1238 DEFENSES TO RENT. §>182 Though the cases are thus ordinarily to the effect that the covenant to make repairs and improvements and that to pay rent are independent, the language used may no doubt be such as to necessitate a different construction,!^** and this has occa- sionally been decided to be the case when the repairs or im- provements were to be made before the time fixed for the lessee 's taking of possession.^2*^ There is a strong implication to the same effect in decisions that the tenant's right to require the landlord's compliance with his covenant for such preliminary repairs or improvements, as a condition precedent to the payment of rent, is waived by the lessee's taking of possession in spite of such breach by the landlord.^^so j^ some cases, without any discussion of the matter on principle, and without reference to Springer, 146 ill. 481, 34 N. E. 805, 22 L. R. A. 544. 37 Am. St. Rep. 175; Rubens v. Hill, 213 111. 523, 72 N. E. 1127; Arbenz v. Exley, Watkins & Co., 52 W. Va. 476, 44 S. E. 149, 61 L. R. A. 957; Piper v. Fletcher, 115 Iowa, 263, 88 N. W. 380; Deuster v. Mittag, 105 Wis. 459, 81 N. W. 643. 12-18 See Y. B. 27 Hen. 6, f. 10, translated in note to Surplice v. Farnswortli, 7 Man. & G. 576. The language of the lease, as stated by the court, in Fisher v. Nergararian, 112 Mich. 327, 70 N. W. 1009, seems to be susceptible of the same con- struction. Where the lease was on condition that the lessor should, before the day named for the commencement of the term, have the premises put in order, "it being understood and agreed that the payment of rent is not to commence until all the said work is finished," and with an option to the lessee to give up the lease if the work was not completed within three months after the day so named, it was held that the lessee was not bound for rent till the work was fin- ished, even though he did not give up the premises at the end of the three months. Epping v. Devanny, 28 Ga. 422, 73 Am. Dec. 778i And see Clark v. Spauldlng, 20 N. H. 313, post, note 12B0. i2*»See Hickman v. Rayl, 55 Ind. 551; Kiernan v. Germain, 61 Miss. 498. In Mechelen v. Wallace, 6 Nev. & M. 316, 7 Adol. £ E. 54, note, the liability for rent was regarded, by reason of the language used, as de- pendent on the lessor's performance of his covenant to place furniture in the house leased. 1260 Allen V. Pell, 4 Wend. (N. Y.) 505; Etheridge v. Osbom, 12 Wend. (N. Y.) 529, 27 Am. Dec. 152; Thompson-Houston Elec. Co. v. Dur- ant Land Imp. Co., 144 N. Y. 34, 39 N. E. 7; Kelsey v. Ward, 38 N. Y. 83 (semble) ; Lewis v. RitofC, 51 Misc. 605, 101 N. Y. Supp. 40; Cantwell v. Burke, 6 N. Y. St. Rep. 308; Ken- ning V. Savage, 51 Misc. 609, 100 N. Y. Supp. 1015; Haven v. Wakefield, 39 111. 509; Wright v. Lattin, 38 111. 293, 87 Am. Dec. 233; Bonaparte v. Thayer, 95 Md. 548, 52 All. 496; Kiernan v. Germain, 61 Miss. 498; Chadwick v. Woodward, 12 Daly (N. Y.) 399, 13 Abb. N. C. 441; Sheary V. § 182 BREACH OP COVENANT. 1239 the particular language used, the landlord's failure to comply with a stipulation for the making of repairs or improvements during the tenancy has been assumed to justify the tenant in abandoning the premises and refusing to pay rent.^^^^ In other Adams, 18 Hun (N. Y.) 181; Deuster 1251 Blssell v. Lloyd, 100 111. 214; V. Mittag, 105 Wis. 459, 81 N. W. 643 Marks v. Chapman, 135 Iowa, 320, 112 (semble). N. W. 817; Harthlll v. Cooke's Ex'r, So in Williamson v. Miller, 55- 19 Ky. Law Rep. 1524, 43 S. W. 705; Iowa, 86, 7 N. W. 416, it was decided Kleman v. Germain, 61 Miss. 498; that the lessee, having taken pos- Pierce v. Joldersma, 91 Mich. 463, 51 session, could not assert that the re- N. W. 1116; Jackson v. Farrell, 6 Pa. pairs of the fence made by the land- Super. Ct. 31. lord were not sufficient under his In Young v. Burhans, 80 Wis. 438, covenant to repair. And in McClure 50 N. W. 343, it Is said that whether V. Little, 19 Law T. (N. S.) 287, it the tenant "was legally justified in was held that the lessee having ac- leaving the premises" upon the les- cepted possession after the lessor sor's failure to make repairs as had made certain repairs, could not agreed was a question for the jury, complain that the premises were not No statement is made as to what put in "good tenantahle repair" as would constitute "legal justiflca- agreed. But in Clarke v. Spaulding, tion." In Auer v. Vahl, 129 Wis. 20 N. H. 313, where the term was, by 635, 10'9 N. W. 529, it is assumed the provisions of the lease, to begin that the lessor's breach of his agree- "from the time that" the lessee ment in this respect justifies aban- should finish the premises and bave donment. them in readiness for occupancy by in Tyler v. Disbrow, 40 Mich, the lessees, it was held that the fact 415. Bostwick v. Losey, 67 Mich, that the lessee took possession and 554^ 35 n. w. 246, and Vincent v expressed satisfaction with the Central City Loan & Inv. Co. (Tex. premises did not prevent him from civ. App.) 17 Tex. Ct. Rep. 474, 99 afterwards asserting, in an action g. -^^ 423, the lessor's failure to com- for rent, that owing to a concealed piy ^th his covenant to make re- defect the premises were never prop- pairs or improvements necessary to erly finished. render the premises fit for the les- In Strohecker v. Barnes, 21 Ga. see's purpose was regarded as con- 430, it was decided that, while the stltuting a "failure of consldera- tenant's entry after the first day of tion," Justifying the lessee in re- the term was a waiver of the provi- Unquishing possession and refusing slon requiring the making of repairs to pay rent. before that time, it was not a waiver in some cases there is an impli- of their being made within a reason- cation to the effect that the tenant able time, and if not made within may, on the lessor's failure to com- that time, or within a time subse- ply with his contract to repair, re- quently agreed on, no rent was re- linquish possession and refuse to coverable if the tenant elected to pay rent. It being said that so long abandon. as he remains in possession be can 1240 DEFENSES TO RENT. § 182 cases it is stated or decided that the tenant may do this if the premises become "untenantable" through the landlord's non- compliance with his covenant.1^^2 As regards these latter cases, it may be remarked that, in thost, states in which the "untenant- able" condition of the premises is itself ground for abandonment by the tenant, either by force of statute or otherwise,^^^^ the fact that this condition would have been amended had the landlord complied with his covenant is evidently no reason for depriving the tenant of his rights in this respect. But in any state where the courts have not recognized the right of the tenant to give up possession and to refuse to pay rent in case the premises become imtenantable, as in the ordinary ease of destruction of the build- ings by fire,*25* it is difficult to see how the fact that the lessor has agreed to make repairs can relieve the tenant from liability for rent, imless the covenants for rent and for repairs can be construed as dependent one on the other. Occasionally, the landlord's failure to make repairs as agreed by him, taken in connection with the undesirable conditions upon the premises which would have been ob\aated by the making of repairs, and the tenant's consequent relinquishment of possession, has been referred to as a "constructive eviction" for the purpose of re- lieving the tenant from liability for rent.i^es g^j^ ^^a^ there is no eviction in such a case has been several times decidedj^^se ^nd not defend against a claim for rent v. Lossy, 67 Mich. 554, 35 N. W. 246; on the ground of the lessor's failure Bissell v. Lloyd, 100 III. 214. to comply -with his covenant to i2b3 gee ante, § 182 n. make repairs. Etheridge v. pshorn, 1254 gee ante, § 182 m (1). 12 Wend. (N. Y.) 529, 27 Am. Dec. 1255 Lewis & Co. v. Chisholm, 68 152; Bryan v. Fisher, 3 Blackf. Ga. 40; Rea v. Algren, 104 Minn. (Ind.) 316; Taylor v. Ftnnigan, 189 316, 116 N. W. B80, 124 Am. St. Rep. Mass. 568, 76 N. E. 203, 2 L. R. A. 627. In this latter case a finding (N. S.) 973; White v. Y. M. C. A., 233 that a failure to repair the roof and 111. 526, 84 N. E. 658. plumbing was a constructive evlc- 1252 Lewis & Co. V. Chisholm, 68 tion was sustained. Ga. 40; Piper v. Fletcher, 115 Iowa, 1256 gpeckels v. Sax, 1 E. D. Smith 263, 88 N. W. 380; McCardell v. Wll- (N. Y.) 523; Huber v. Ryan, 26 Misc. Hams, 19 R. I. 701, 36 Atl. 719; Rut- 428, 56 N. Y. Supp. 135; Hallett v. ledge V. Quinlan, 127 Mo. App. 419, Wylle, 3 Johns. (N. Y.) 44, 3 Am. 105 S. W. 653; Mylander v. Helm- Dec. 457. So It is said in Biggs v. schla, 102 Md. 689, 62 Atl. 1038, 5 L. McCurley, 76 Md. 409, 25 Atl. 466, R. A. (N. S.) 316. So if the prem- that "it can hardly be necessary to ises are rendered useless. Bostwick gay that the failure of the lessor to § 182 BREACH OF COVENANT. 1241 it is difficult to see the slightest element of an eviction, as the term is understood at common law, in the breach of a covenant to repair. The same result of relieving the tenant from liability for rent in case of the landlord's failure to repair, and the consequent untenantable condition of the premises, might, perhaps, in some cases, be attained on the theory that the use of the premises in such condition is valueless, and that consequently the tenant is entitled to recoup or set off against the claim for rent, as damages for the breach of the contract to repair ,1^^^* the difference between the rental value with and without repairs, which would in such a ease be prima facie the amount of the rent reserved.^ ^^'^ (3) Contract to furnish heat, power, or other facilities. Quite frequently the landlord covenants to furnish certain facilities or conveniences to the tenant while occupying the premises, and according to some decisions, his failure to comply with his cov- enant may enable the tenant to relinquish possession, and to de- fend against a claim for subsequently accruing rent. Thus, where the landlord has agreed to furnish heat for the leased premises, as is frequently the ease when a single apartment in a building is leased, a failure to furnish such heat, if this results in making the leased premises unfit for occupancy, has been regarded as effecting an eviction,!^^^ though in the same state it had pre- viously been decided^^^^ that this was not a case of injury to the premises, within the statute ^^eo relieving the tenant from rent, in case of an untenantable condition caused by such injury. In New York there are a number of decisions in this connec- tion, which are generally favorable to the tenant's right to relin- quish possession for the landlord's breach of a covenant of this character, and so to relieve himself from liability for rent, though make the repairs stipulated in the 139 Mich, 94, 102 N. W. 636, it was lease would not in itself amount to considered that the lessee had a a constructive eviction." right to leave by reason of the fail- i25oa See post, § 294. ure toTieat, but there, perhaps, there 1257 See Prescott v. Otterstatter, 8B was an agreement that his liability Pa. 534; Meredith Mechanic Ass'n v. for rent should be conditioned on American Twist Brill Co., 67 N. H. the erection of a furnace. 450, 39 Atl. 330. Compare ante, 5 1259 Minneapolis Co-Operatlve Co. 87 d (9) at note 171. v. Williamson, 51 Minn. 53, 52 N. W. 1258 Bass v. Rollins, 63 Minn. 226, 986, 38 Am. St. Rep. 473. 65 N. W. 348. In Rogers v. Babcock, i2«o See ante, note 1103. 1242 DEFENSES TO RENT. § 182 they are not entirely satisfactory as regards their statements of the reasons for such a holding. Thus it was decided that the tenant had this right when the heating apparatus, which was under the landlord's exclusive control, was by reason of "faulty construction or accident or misma^nagement " out of repair, and so permitted by the landlord to remain,i26i this being apparently regarded as within the Act of 1860.^^62 jn another case it was decided, without reference either to the Act of 1860 or to the doctrine of eviction, that, where premises were leased to a tenant "for the purposes of her business," the lessor agreeing to furnish a certain amount of steam power, and also heat for drying pur- poses, the furnishing of an uneven power, although exceeding the amount agreed, together with the failure to furnish the heat agreed, justified the tenant in abandoning the premises-^^**^ And the same view has been taken of a failure to furnish water as agreed.^ 264 j^ another case the inefficiency of the elevator service, which the lessor had impliedly agreed to furnish, was regarded as effecting an eviction, when the tenant left in consequence thereof,i265 and the same view was taken of a combination of such defective elevator service, a failure to heat the apartment as agreed, and the presence therein of smoke from defective flues and chimneys.1266 Jq lUiaois, Iowa and Michigan, also, the failure to furnish heat or power as agreed, if in consequence thereof the tenant leaves, has been regarded as excusing payment of rentji^si 1261 O'Gorman v. Harby, 18 Misc. lass Lawrence v. Mycenian Marble 228, 41 N. Y. Supp. 521. A failure to Co., 1 Misc. 105, 20 N. Y. Supp. 698; furnish heat as agreed is regarded Ardsley Hall Oo. v. Sirrett, 86 N. Y. as an eviction in Ryan v. Jones, 2 Supp. 792. See, also, Delmar Inv. Misc. 65, 20 N. Y. Supp. 842; Butler Co. v. Blumenfield, 118 Mo. App. 308, V. Newhouse, 85 N. Y. Supp. 373. 94 S. W. 823. 1202 See ante, note 1101. 1206 Lawrence v. Burrell, 17 Abb. i263Trenkman v. Schneider, 26 N. C. (N. Y.) 312. This case is. In Misc. 695, 56 N. Y. Supp. 770. Daly v. Wise, 15 Daly, 431, 7 N. Y. In Myers v. Bernstein, 104 N. Y. Supp. 902, said to be "so palpably Supp. 348, the failure to furnish erroneous that no time need be power as agreed was regarded as spent in exposing its errors." constituting a constructive eviction. 1257 Fllkins v. Steele, 124 Iowa, But see Ely v. Spiero, 28 App. Div. 742, 100 N. W. 851; Harmony Co. v. 485, 51 N. Y. Supp. 124, apparently Rauch, 64 111. App. 386 (compare to a contrary effect. Orcutt v. Isham, 70 111. App. 102) ; 1204 Rosenbloom v. Solomon, 57 Rogers v. Babcock, 139 Mich. 94, 102 Misc. 290, 109 N. Y. Supp. 540. N. W. 636. § 182 BREACH OF COVENANT. 1243 and there is an implication to that effect in Pennsylvania.!'^** In any jurisdiction, it would seem, if the rent is payable in ad- vance, the tenant cannot justify his nonpayment on the ground that the landlord may not perform his covenants as to furnishing heat or power during the rent period.^^*^ The tenant's failure to promptly relinquish possession, on breach of the landlord's covenant to furnish heat or power, will, by occasional decisions, not prevent his assertion of the right to relinquish, and so free himself from liability for rent, upon a sub- sequent failure in this respect,!^''*' assuming that this is a ground for relinquishment. But the failure to supply heat during the cold part of the year will not justify his leaving after the arrival of warm weather,i27i and he cannot leave, it is said, till the land- lord has had a reasonable time for the repair of any defects in the heating apparatus.^^''^- ^^''^ (4) Miscellaneous contracts and covenants. The question of the interdependence of the lessee's covenant to pay rent and various covenants, other than those preAdously mentioned, has occasionally been the subject of consideration, and ordinarily they have been regarded as independent. So it has been held to be no defense to the claim for rent that the lessor has broken his cove- nant not to lease adjoining premises for certain purposes.^^T* to furnish certain material for repairs,!^^^ or to furnish timber and roads for use in connection with the sawmill leased.*^^® The covenant for quiet enjoyment and that to pay rent are in- 1288 Moore v. Gardiner, 161 Pa. 1270 Trenkmann v. Schneider, 26 175, 28 Atl. 1018, where It was held Misc. 695, 56 N. Y. Supp. 770; Bass that the defense was insufficient, v. Rollins, 63 Minn. 226, 65 N. W. since the lessee did not relinquish 348. But see Orcutt v. Isham, 70 111. possession till the summer time, App. 102. when there was no need of heat. 1271 Ryan v. Jones, 2 Misc. 65, 20 But the view that the tenant can N. Y. Supp. 842; Moore v. Gardiner, leave lor this reason seems incon- 161 Pa. ns, 28 Atl. 1018. sistent with Reeves v. McComeskey, 1272, 127s o'Gorman v. Harhy, 18 168 Pa. 571, 32 Atl. 96, holding that Misc. 228, 41 N. Y. Supp. 521. he cannot leave on account of the 1274 Chicago Legal News Co. v. untenantable condition of the prem- Browne, 103 111. 317. But see Del- jggg mar Inv. Co. v. Blumenfleld, 118 Mo. 1269 See Hurliman v. Seckendorff, App. 308, 94 S. W. 823. 10 Misc. 549, 31 N. Y. Supp. 443; 1275 Hall v. Smith, 16 Minn. 58. Trenkmann v. Schneider, 26 Misc. 1276 McCoy v. Hill, 12 Ky. (2 Litt.) 695, 56 N. Y. Supp. 770. 372. 1244 RIGHT TO RENT. § 182 dependent, so that the breach of the former is no defense to an action on the latter,i277 though damages arising therefrom may ordinarily be made the subject of recoupment and counterclaim. s. War and military occupation. The fact that the leased property is rendered unavailable for occupation or is otherwise valueless to the tenant, by reason of the presence of a hostile army thereon, has been regarded as insufficient to relieve the tenant from liability for rent,!^''* and this would a fortiori be the case when not the property itself, but the surrounding country only, is so oeeupied.^2''® It was decided, however, by the United States supreme court, that a tenant of premises within the limits of the confederacy was discharged from liability for rent to his landlord if he was deprived of the possession by the action of the federal military authorities, or if he was compelled to pay the rent to such authorities-^^^" t. Particxilar stipulations as to rent. Occasionally the liability for rent is expressly made conditional upon the completion of par- ticular improvements,^^*^ or upon the suitability of the premises 1217 Dawson v. Dyer, 5 Barn. & Styles, 47; Pollard v. Schaaffer, 1 Adol. 584; Edge v. Bolleau, 16 Q. B. Dall. (Pa.) 210, 1 Am. Dec. 239. Div. 117. 1279 Coy V. Downie, 14 Pla. 544; In Weed v. Crocker, 79 Mass. (13 Loggins v. Buck, 33 Tex. 113. Bow- Gray) 219, on a lease of a paper mill ditch, v. Heation, 22 La. Ann. 356, and water power, the lessee agreed centra, Is based on civil-law author- to put in all machinery except the Ity. main shaft and wheel, which were to In Bayly v. Lawrence, 1 Bay (S be furnished by the lessor, and it C.) 499, it was resolved "that the was held that as the water power defendant ought to pay for the time was essential to the entire use of he peaceably enjoyed the premises, the premises as a paper mill, and as but not for the time he was pre- that could only be obtained by a vented by the casualties of war;" main shaft and water wheel, the but this is construed in Coogan v. furnishing of these latter "was a Parker, 2 S. C. 255, 16 Am. Rep. condition precedent," and the stipu- 659, as referring to a destruction of lation of the lessee to pay rent was the property. dependent, but that if the lessee laso Harrison v. Meyer, 92 U. S. went to work with such shaft and m, 23 Law. Ed. G06; Gates v. Good- wheel as were furnished by the les- loe, 101 U. S. 612, 25 Law. Ed. 895. sor, and continued to use them, he Contra, Clark v. Mitchell, 64 Mo. 564, could not refuse to pay rent for 1281 Clarke v. Spaulding, 20 N. H. the period of their use on the ground 313; Pallis v. Gray, 115 Mo. App. 253, that they were defective. 91 S. W. 175; Corinthian Lodge v. i2T3Paradine v. Jane, Aleyn, 26, Smith, 147 N. C. 244, 61 S. E. 49; § 183 AS AGAINST EXECUTION LEVY. 1245 for a particular use,^"®^ or upon the satisfaction of some other specified requirement.^^** In such cases, it is evident, rent does not ordinarily begin to accrue until the condition or requirement is satisfied. Occasionally, however, the lessee's entry on the prem- ises, before such satisfaction has occurred, has been regarded as a waiver of the requirement and as rendering him immediately li- able for rent.1284 § 183. Right to payment of rent as against levy under execution. a. Statutory provisions. The statute of 8 Anne, c. 14, § 1, pro- vided that "no goods or chattels whatsoever, lying or being in or upon any messuage, lands or tenements, which are or shall be leas- ed for life or lives, term of years, at will, or otherwise, shall be liable to be taken by virtue of any execution on any pretence what- Acorn v. Hill, 34 Nova Scotia, 508. der the room leased unfit for a court Compare McCready v. Llndenborn, 37 room, though this use existed at the App. Div. 425, 56 N. Y. Supp. 54, date of the lease, where it was held that a very slight lass in Marsh v. Bridgeport, 75 delay in completion did not relieve Conn. 495, 54 Atl. 196, the liability the lessee. for rent under a lease to a city was In Meyers v. Liebeskind, 46 Misc. expressly made conditional upon the 272, 91 N. Y. Supp. 725, there was a making of an appropriation by the lease or "agreement to lease" an city council. In Mississinewa Min. apartment in a building in course Co. v. Andrews, 22 Ind. App. 523, 54 of construction, and the court de- N. E. 146, the lessee's liability for cided that this involved an implied rent was expressly conditioned upon covenant that the apartment leased the lessee's failure to drill an oil should be fit for occupancy on the well. day specified for the tenancy to be- 1284 ober v. Brooks, 162 Mass. 102, gin, and that, since it was not so 38 N. B. 429; Hallenbeck v. Chap- fit, the landlord was not entitled to man, 72 N. J. Law, 201, 63 Atl. 498; rgnt Acorn v. Hill, 34 Nova Scotia, 508. 1282 See e. g., Riley v. Pettis Coun- See Corinthian Lodge v. Smith, 147 ty, 96 Mo. 318,' 9 S. W. 906, where a N. C. 244, 61 S. B. 49. But in Clarke lease of part of a building to a cpun- v. Spaulding, 20 N. H. 313, it was ty provided that the lessee should held that no such waiver occurred, not be liable for rent during any the lessee having entered under the period when it was not in good condi- mistaken impression that the stlpu- tion for comfortable occupation for lated improvements were satisfac- a court room, and it was held that torily completed and subsequently the county was not so liable so long discovering that they were not prop- as the lessor allowed a lower room erly finished, to be used in such a way as to ren- 1246 RIGHT TO RENT. § 183 soever, unless the party at whose suit the said execution is sued out shall before the removal of such goods from off the said premises, by virtue of such execution or extent, pay to the landlord of the said premises, or his bailiff, all such sum or sums of money as are or shall be due for rent for the said premises at the time of the taking such goods or chattels by virtue of such execution -, provided the said arrears of rent do not amount to more than one year's rent; and in case the said arrears shall exceed one year's rent, then the said party, at whose suit such execution is sued out, paying the said landlord, or his bailiff, one year's rent, may proceed to execute his judgment, as he might have done before the making of this act. ' ' The English statute has been re-enacted without change in South Carolina,i285 and the statute of New Jersey^^se jg similar, except that it provides for the ease of goods taken "on attachment or other process" as well as those taken on execution, and also contains a provision as to rent not yet due.^^*'' The statute of Pennsylvania,^ 2** instead of requiring the payment of one year's rent by the party at whose suit the execution is sued out, before the removal of the goods by virtue of the execution, in terms re- quires the sheriff to pay such amount of rent to the execution creditor, if and when realized by their sale. And in Delaware it is provided that if the goods of the tenant be seized by virtue of any process of execution, attachment or sequestration, they shall be liable for one year 's rent, in arrear, or growing due, in prefer- ence to such process, and that the landlord shall be first paid such rent out of the proceeds of the sale of the goods, while in case of rent payable in grain or other produce, such grain or produce, even though sold, is still liable to distress, and is not removable till rent be paid.i^*^ The Kentucky statute provides that, out of the proceeds of property on the leased premises taken on execution or attachment, the officer shall make payment of the rent payable in money, due and to become due, for the year in which the levy is made, unless a bond of indemnity is executed. i^so The former statute of New York,i29i repealed at the time of the abolition of 12S5 Civ. Code, §, 2427. ^289 Rev. Code 1893, pp. 874-875, 1286 2 Gen. St. p. 1915, § 4. §§ 60, 62. i28TSee post, § 183 d. 1290 St. 1903, 5 2315. 1288 Act June 13, 1836, §§ 83-85; i2»iRev. St. 1836, p. 2, c. 1, tit. 4, Pepper & Lewis' Dig. Landl. & Ten. §§ 12-14. §§ 15, 16. § 183 AS AGAINST EXECUTION LEVY. 1247 distress, provided for notice by the landlord to the sheriff before the sale of the goods, and the levy by the sheriff of the amount of the rent in addition to the amount named in the execution, and the payment of the rent from the proceeds of sale in preference to the execution claim. In view of the evident connection between these statutes and the right of distress, the abolition of the latter right in any particular jurisdiction would seem in itself to terminate, by implication, all rights previously existing under the statute of Anne or similar state legislation. The question seems, however, never to have ariseii.1292 b. The tenancy. The English statute has been regarded as applicable only when there is a tenancy still existent, even though the six months within which a distress may be made have not yet expired,*^** but it has been held in one state that the local stat- ute applies if there is a right of distress, although the tenancy has expired, the statute applying in terms to goods "liable to the dis- tress of the landlord. "1294 A tenancy created by way of attornment and as security is suf- ficient to justify the application of the statute.^^*' If a landlord transfers the reversion, he then ceases to be the landlord, and loses the right to the benefit of the statute.^**' The statute evidently has no application when no relation of ten- ancy exists.i^^'^ c. The execution or other process. The English statute has been held to apply not only to an execution from a court of law, but also to a sequestration from a cOurt of equity.i^os But it was not regarded as applicable when goods were seized by the sheriff on an attachment against a nonresident previous to suit, though in this case, the goods having bee a sold by the sheriff under order of court as being perishable, the landlord was allowed to claim, out of the proceeds of sale, such amount of rent as he could have 1292 The English statute is not in statute. Ege v. Ege, 5 Watts (Pa.) 134. force in Illinois. Herron v. Gill, 112 111. 247. 1295 Yates V. Ratledge, 5 Hurl. & N. 249. 1293 Cox V. Leigh, L. R. 9 Q. B. 333. j^j,„ Hoskins v. Houston, 2 Clark 1294 Moses' Appeal, 35 Pa. 162; ^p^^^ ^gg Lewis' Appeal, 66 Pa. 312. i29t Olden v. Mather (N. J. Eq.) 67 One who has no right to distrain ^.tl. 435. has no right to the benefit of the 129s Dixon v. Smith, 1 Swanst. 4.57. 1248 RIGHT TO RENT. § 183 demanded if the goods had been taken under execution.i2»9 la another state the local statute was held to apply in the case of an attachment and sale thereunder .i*"" It has also been regarded as applicable when the goods were taken possession of by the as- signee in bankruptcy^^"^ and by a receiver. 1*"^ It has been also held to apply to a seizure and sale under warrant by force of an agricultural lien.^^oa jn Pennsylvania there is a substantially similar statutory provision expressly applicable to the case of an assignment for the benefit of creditors.^^"* If two executions are levied, the landlord cannot have a year's rent on eaeh.i^os d. Bent due or to become due. By the terms of the statute of Anne, as well as by the terms of most of the local state statutes en- acted in pursuance of the same policy, the landlord cannot make any claim on account of rent which is not due at the time of the levy.1308 Bijt it is sufficient, it has been held, if the rent falls due on the day of the levy.i^oT ^^j j-gnt has been regarded as due 1299 Thomson v. Baltimore & Sus- isos Dod v. Saxby, 2 Strange, 1024. quehanna Steam Co., 33 Md. 312. isoe Hoskins v. Knight, 1 Maule & 1300 Morgan v. Moody, 6 Watts & S. 245; Reynolds v. Barford, 7 Man. S. (Pa.) 333. & G. 449; Denham v. Harris, 13 Ala. iMJ Longstreth v. Pennock, 87 U. 465; Washington v. Williamson, 2S S. (20 Wall.) 576; In re Hoover, 113 Md. 244; Hazard v. Raymond, Z Fed. 136; Wilson v. Pennsylvania Johns. (N. Y.) 478; Trappan v. Trust Co. (C. C. A.) 114 Fed. 742; Morie, 18 Johns. (N. Y.) 1; Theriat In re West Side Paper Co., 159 Fed. v. Hart, 2 Hill (N. Y.) 380; Case v. 241. Compare Lee v. Lopes, 15 East, Davis, 15 Pa. 80; Ex parte Watson,. 230. 3 Brev. (S. C.) 60; Ayres t. Depras, 1S02 Malcomson v. Wappoo Mills, 2 Speer Law (S. C.) 367; Dawson 85 Fed. 907. v. Dewan, 12 Rich. (S. C.) 499. But 1303 Brewster v. McNab, 36 S. C. under a local statute providing for 274. 15 S. B. 233. The opinion lays the assertion of a claim for "all stress upon the words of the provision money due for the rent of said prem- of the General Statutes, § 1824, giv- ises at the time of taking such goods ing this relief to the landlord, to and chattels in execution, whether wit: "By virtue of any execution or the day of payment, by the terms of any pretense whatsoever." The the lease, shall have come or not," word "or" is evidently a misprint it was held that it was immaterial for the word "on" as found in the whether rent was due or not. English statute, but this appears not Shanks v. Town Conncil of Green- to have suggested itself to the court, ville, 57 Miss. 168. 1804 Act May 26, 1891, Pepper * 13«t Carpenter t. ShanHla, T Lewis' Dig., Landl. & Ten. § 22. Blackf. (Ind.) 308. § 183 AS AGAINST EXECUTION LEVY. 1249 within the particular statute, if it is payable in advance, although the period for which it is payable has not expired at the time of the levy,**"8 as it is if aU the rent has become due and payable, imder express provisions in the lease, by reason of the happening of cer- tain eontingencies.^^**^ In one state the local statute, making the goods liable for any sums ' ' due for rent, ' ' has been held to entitle the landlord to an apportionment of the rent up to the time of the levy,i*i° a construction of the statute which has been strongly criticised in the same state^^ii and has been unwillingly adhered to. The landlord's claim need not, it has been decided, be re- stricted to the installment of rent falling due next before the levy.1312 The fact that the remedy by distress has been suspended by the giving of a note for the rent has been held not to affect the appli- cability of the statute, on the theory, apparently, that the reat ia ' ' due ' ' within the meaning of the statute, when the day of pay- ment, as fixed by the lease, has arrived, although the remedy for its collection is suspended.^*!* That the landlord has distrained for part of the rent does not affect his right to assert his claim imder the statute for another part.**^* The statute is not applicable in the case of a claim for a sum due for use and occupation, since this is not rent.^^^'* 1308 Russell V. Doty, 4 Cow. (N. Purdy, 23 Pa. 97; Prentiss v. Klnga- y.) 576; Beyer v. Fenstennacher, 2 ley, 10 Pa. 120, 49 Am. Dec. 586; Whart. (Pa.) 95; Collins' Appeal, 35 Bank of Pennsylvania v. Wise, 3 Pa. 83. But not if the rent Is not Watts (Pa.) 394; Anderson's Appeal, yet due. Purdy's Appeal, 23 Pa. 97. 3 Pa. 218; Wickey v. Byster, 58 Pa. 1309 Piatt V. Johnson, 168 Pa. 47, 501. 31 Atl. 935, 4T Am. St. Rep. 877. is" Parker & Keller's Appeal, 5 Pa. But as to the validity of a provision 390; Richie v. McCauley, 4 Pa. 471; that the entire rent shall become due Wlckey v. Byster, 58 Pa. 501; Welt- on bankruptcy, see Wilson v. Penn- ner's Appeal, 63 Pa. 302. But the sylvania Trust Co., 52 C. C. A. 374, local statute may require a con- 114 Fed. 742; In re Winfleld Mfg. trary construction. See Van Rens- Co 137 Fed. 984. selaer v. Quackenboss, 17 Wend. (N isioWest V. Sink, 2 Yeates (Pa.) Y.) 34. 274- BInns v. Hudson, 5 Bin. (Pa.) I'ls Fife v. Irving. 1 Rich. Law (S. 505 i Parker & Keller's Appeal, 5 Pa. C.) 226. But see the dissenting 390; Morgan v. Moody, 6 Watts & S. opinion. (Pa.) 333; Wickey v. Byster, 58 Pa. ""Kreiter v. Hammer, 1 Pears. 501; Thropp's Appeal, 70 Pa. 395. (Pa.) 559. . isiiLIchtenthaler v. Thompson, ""Riseley V. Byle, 11 Mees. & W. 13 Serg. & R. (Pa.) 158; Appeal of 16; Farmers' Bank v. Cole, 5 Har. L. and Ten. 79. 1250 RIGHT TO RENT. § 183 The sheriff may show, it has been held, to justify his payment of a certain sum to the execution debtor's landlord, that such sum was due as one year 's rent, although, owing to a misstatement in the lease as to the time of the beginning of the tenancy, the land- lord was precluded, by the "parol evidence" rule, from showing such sum to be due.**^^ e. Goods and chattels levied on. The purpose of the original statute was evidently to prevent the entire loss of the landlord's right of recourse against the goods on the premises for his rent, in case the right of distress was defeated by the levy of an exe- cution.131'' On the theory that this is the purpose of such a stat- ute, it has been held, in one state, that no obligation is imposed on the sheriff as regards the goods of a stranger upon the prem- ises, which, by the local law, are not subject to distress.i^*® In England, apparently, though the goods of a stranger on the prem- ises are subject to distress, the statute of Anne is regarded as in- applicable when the goods seized are not the property of the tenant.^^i® In this country a different view has been taken as to a stranger's goods subject to distress.^320 The English statute has been held not to apply in favor of the landlord as against an execution levied on goods belonging to a subtenant, although such goods would be liable to distress for the rent due the landlord.^^^^ A different construction, however, has been placed on the Pennsylvania statute, which provides that (Del.) 418; Central Bank v. Peter- pare Hughes v. Smallwood, 25 Q. B. son, 24 N. J. Law (4 Zab.) 668. But D. 306. see Case v. Davis, 15 Pa. 80. If the sheriff seizes the fenant's 1316 Com. v. Contner, 21 Pa. 266. goods under color of an execution 1317 See Henchett v. Kimpson, 2 against another, he cannot, in an Wils. 140. action against him by the landlord 1318 Ryerson v. Qiiackenbush, 26 under the statute, allege that they N. J. Law (2 Dutch.) 236. To the were not taken under execution, same general effect, apparently, is Porster v. Cookson, 1 Q. B. 419. Brunswick-Balke-Collender Co. v. 1320 Russell v. Doty, 4 Cow. (N Murphy, 89 Miss. 264, 42 So. 288, 119 Y.) 576. And see McCombs & How- Am. St. Rep. 702. den's Appeal, 43 Pa. 435, post, note 1319 Beard v. Knight, 8 El. & Bl. 1322. 865, per Crompton, J.; Lee v. Lopes, laai Bennet's Case, 2 Strange, 787 15 East, 230, per Lord EUenborough, followed, with hesitation. In Brown C. J.; Foulger v. Taylor, 5 Hurl. & v. Fay, 6 Wend. (N. Y.) 392, 22 Am. N. 202, per Martin, B. See, also, Dec. 537. Bennet's Case, 2 Strange, 787. Com- § 183 AS AGAINST EXECUTION LEVY. 1251 the landlord's claim for rent may be asserted in case of execution levied on goods on the demised premises "and liable to the dis- tress of the landlord, ' ' the latter words being regarded as defining the cases in which the claim might be asserted.^^^^ Under the state statute last referred to, the claim cannot be asserted if the execution is levied on goods which are not liable to distress be- cause removed from the premises before the levy, unless perhaps the removal was fraudulent so that they would be liable to dis- tress.1323 Tiie English statute does not apply, it seems, if the goods were removed from the premises before they were taken raider execution, even though the removal was fraudulent, so that they would be subject to distress, since the goods must be "in or upon" the premises.^*^* It has been held that a statutory exemption from distress of chattels to a certain value, to be selected by the tenant, is not available to the execution creditor as a ground for denying, to that extent, the applicability in favor of the landlord of such a statute, the two statutes being entirely distinct, and that in re- gard to exemptions from distress being intended only for the benefit of the tenant and his family.i^^s Likewise, in England it has been said that the act applies, regardless of whether the goods levied on are subject to distress.^'^s That goods on which a distress has been made, though replevied and then levied upon by the sheriff, have been seized under exe- cution, does not justify the landlord's claim under the statute on account of the same rent.^^^T If, after the seizure of goods on the premises under execution 1322 McComljs & Howden's Appeal, Law, 499. But in Pennsylvania the 43 Pa 435. ^^^^ *® apparently different. Row- The execution creditor cannot re- land v, Goldsmi'th, 2 Grant Gas. quire the landlord to distrain on (Pa.) 378. And see, to the effect goods of a third person in order that that the right of the landlord in case the goods of the tenant may be left of execution is coextensive only with f ee to' satisfy the execution, the right of distress, Bowser v. Timmes v Metz, 156 Pa. 384, 27 Atl. Scott, 8 Blackf. (Ind.) 86; Russell ^^g V. Doty, 4 Cow. (N. Y.) 576. " H23 Grant & McLane's Appeal, 44 i32flRiseley v. Ryle, 11 Mees. & W. Pa 477 16, 22. 1324 See Geiger's Adm'r v. Har- ws' Gray v. Wilson, 4 Watts (Pa.) man's Ex'rs, 3 Grat. (Va.) 130. 39. 1325 Van Horn v. Goken, 41 N. J. 1252 RIGHT TO RENT. § 183 against the tenant, the landlord asserts a claim to them as belong- iag to him, he cannot afterwards demand, as landlord, it has been decided, to share in the proceeds of their sale as the goods of his tenant.^^2* The execution creditor cannot demand that the landlord distrain on goods on the premises not belonging to the tenant, so as to relieve from his claim those which do belong to the latter.i^^a f . Notice to the sheriff. The statute of Anne contains no ex- press requirement as to notice to be given to the sheriff of the ar- rears of rent due, and it has been held that it is sufficient, for the purpose of imposing on the sheriff the obligation to satisfy the ar- rears before removing the goods, that he has knowledge of the existence of arrears of rent, however acquired.^**" By other cases it is assumed that an express notice is necessary, though not specifically required by the statute, but that it is sufficient if given even after the sale of the goods under execution and their removal from the premises, provided it is given before the proceeds of the sale are paid over to the execution creditor,i33i and that it need not be in writing,i332 qj. {^ any particular form,i333 qj. state the ' exact amount of arrears.^^s* Occasionally a state statute, in most respects similar to the statute of Anne, has contained an express requirement of notice. ^^^^ Un- i328Vett€r's Appeal, 99 Pa. 52; In Maryland it is provided (Code Edwards' Appeal, 105 Pa. 103. Pub. Gen. Laws 1904, art. 53, § 21) issoTimmes v. Metz, 156 Pa. 384, that whenever any landlord shall 27 Atl. 248. give notice of rent due to the sheriff 1S30 Andrews v. Dixon, 3 Barn. & or constable who may be about to Aid. 645; Riseley v. Ryle, 11 Mees. & sell the goods and chattels of the W. 6; Bible v. Hussey, 2 Ir. R. C. tenant under execution, there shall L. 308. be appended to said notice an affi- 1331 Smith V. 'Russell, 3 Taunt, davit of the amount of his rent 400; Arnitt v. Garnett, 3 Barn. & claimed to be due. Aid. 440; Beekman v. Lansing, 3 1333 Colyer v. Speer, 2 Brod. & B. Wend. (N. Y.) 446, 20 Am. Dec. 707. ^^ And notice at such time was held [^^^ ^.^^^^ ^ ^^^ p^ ^^^ good where the statute required the ^^ ^^^ sheriff to pay over such rent to the ' " ,' , ^ landlord "after the sale of the "^=1^ Maryland, where the stat- goods." Bge v. Bge, 5 Watts (Pa.) ^te of Anne is in force, a local stat- jg^ ute (Code Pub. Gen. Laws 1904, art. iB32Bur]s;et v. Boude, 33 Ky. (3 53, § 21) provides that- a landlord Dana) 209. §183 AS. AGAINST EXECUTION L.Ji;VY. 125i der a statute providing that the landlord, at any time before sale under execution, might give notice to the execution creditor, or to the officer, of the amount claimed by him to be due, and that the officer should then levy the amount of the rent so claimed, in addition to the sum directed to be raised on such execution, and pay it over to the landlord, it was held not only that the notice must be given before the sale imder execution,^*** but that it must show the relation of tenancy,^ *^' and that the sum due was rent,^*** and it must obviously be given by a person prc^erly authorized.i*^® Even though a notice before the payment over of the proceeds by the sheriff is ordinarily sufficient, it must be given before the sale, if this is, by consent of the execution plain- tiff, made by the execution defendant, so that the proceeds do not pass into the hands of the sheriff.^^*** It was decided soon after the passage of the English act that the sheriff was under no obligation to ascertain that rent was due,^^*i and consequently, apart from any statutory requirement as to the giving of an express notice, the landlord should always give it in order to insure the preservation of his rights. g. The duty and liability of the sheriff. The duty of the sheriff, under the statute, is to call upon the execution creditor to pay the rent in arrear, and in default of such payment he may refuse to make any sale and withdraw from possession of the goods seized.i^*^ He has the alternative of selling the goods under the execution and applying the proceeds, so far as neces- sary, upon the rent.^^^^ But if the goods sold under execution giving notice of rent due to the (N. Y.) 3S2, where it was decided sheriff or constable about to sell the that an attorney employed merely to goods of the tenant under execution institute distress proceedings had no must append to the notice an affl- authority to give such notice, davit as to the amount claimed. See 1340 "Work's Appeal, 92 Pa. 258, 37 Washington v. Williamson, 23 Md. Am. Rep. 681. 244 i«<'^ Waring y. Dewberry, 1 Strange, 1336 Bussing V. Bushnell, 6 Hill (N. 97: Palgrave v. Windham, 1 Strange, Y •. gg2 212. See Arnltt v. Gamett, 3 Barn. 1337 Millard v. Robinson, 4 Hill & Aid. 440. (N. Y.) 604; Olcott v. Frazier, 5 is42 Cocker ▼. Musgrove, 9 Q. B. Hill (N. Y.) 562; Camp v. McCor- 223; Thomas T. Mirehouse, 19 Q. B. mick 1 Denio (N.Y.) 641. Div. 563. i338 01eott V. Frazier, 5 Hill (N. "^ in re Mackenzie [1899] 2 Q. B. y , gg2 566, 575; Sulli'yan v. Ellison, 20 S. C. tss!) Bussing V. BushnellT 6 Hill 481. 1254 RIGHT TO RENT. § 183 against the tenant belong to a person other than the tenant,**** or his bankrupt trustees,!**^ the sheriff will be liable not only to such person, for the wrongful sale of his goods under execution against another, but also to the landlord, in jurisdictions where such goods are liable to distress, for deptiving him of the right of distress against such goods. And though the goods bring, on the sale, less than the amount of the year's rent, the jury might, in an action against the sheriff by the landlord, give damages in an amount greater than such proceeds of sale.^^*® The effect of the statute is to make the sheriff liable to the landlord if, having notice that rent is due, he removes the goods from the premises, and this liability may be asserted by an action on the case.13*** In England it has been decided that a sale of the goods by the sheriff, without any removal, does not impose any liability on him, for the reason that the goods are still liable to distress even after such sale, although no longer the property of the tenant. ***''■ But in a state in which distress is expressly re- stricted to the goods of the tenant, the local statute, although similar to the English statute in providing for the payment of rent only "before the removal of such goods," was construed to render the sheriff liable in case of a sale on the premises, since thereby the landlord's right of distress was destroyed.i^is ■Q-^^ whether or not such sale on the premises renders the sheriff liable in damages, the landlord, instead of seeking redress by that form of proceeding, may ask a rule on the sheriff to compel him to pay arrears of rent from the proceeds of the sale.is*^ 1344 Forster v. Cookson, 1 Q. B. is47 Smallman v. Pollard, 6 Man. & 419; Beard v. Knight, 8 El. & Bl. G. 1001; White v. Binstead, 13 C. B. 865; Foiilger v. Taylor, 5 Hurl. & N. 304. 202; White v. Binstead, 13 C. B. 304. i348 Ryerson v. Qriackenbusli, 26 1345 Duck V. Braddyll, McClel. 217; n. J. Law (2 Dutch.) 236. Lee V. Lopes, 15 East, 230. iiia n^-,.^ ^ ^„ * i ^i 1349 Gore V. Goston, 1 Strange, i34eHrTicliett V. Kimpson, 2 Wlls. ,.„ „ , ^. ^^. .,.„„, . T ,.^ » T, o ^^^- Henchett v. Kimpson, 2 Wils. 140; Calvert v. JolifCe, 2 Barn. &.,„.., ^^Qj 4-,^g I'lO; Arnitt v. Garnett, 3 Barn. & 1346a Calvert v. Joliffe, 2 Barn. & Al"!- 440; In re Mackenzie [1899] 2 Q. Add. 418; Riseley v. Ryle, 10 Mees. ^- ^^^' Washington v. Williamson, & W. 101; Lane v. Crockett, 7 ^3 Md. 244; Pischel v. Keer, 45 N. Price, 566: Forster v. Cookson. 1 Q. J- Law, 507; West v. Sink, 2 Yeates ■R. 419; Yates V. Ratledge, 5 Hurl. & (Pa.) 274. .^ N. 249. § 183 AS AGAINST EXECUTION LEVY. 1255 The sheriff cannot, it has been decided, relieve himself from lia- bility for removing the goods by afterwards returning them to the premises,**^" nor by paying into court the proceeds of the sale of the goods.i^ei The sheriflf is liable to the landlord, it has be©a decided, if he pays over the proceeds of the sale unreasonably soon after the sale, so as not to give the former an opportunity to present his claim before such payment.^ ^^^ It has been held that the landlord waives his right to assert liability on the part of the sheriff if he consents to a sale of the goods by the latter, and the latter sells accordingly .i^^^ The measure of the damages recoverable by the landlord againt the sheriff for removal of the goods, or in some jurisdic- tions, their sale,i354 without first paying the claim for rent, is prima facie the amount of the rent due^^^^ to the extent, it seems, of one year's rent. But the sheriff may prove in miti- gation of damages that the value of the goods removed is less than the amount of rent due."^^ It has, in one state, been suggested that the statute might have the effect, not only of making the sheriff liable in damages by reason of his violation of its provisions, but of justifying the landlord in preventing the removal of the goods by the execu- tion creditor purchasing at the execution sale.i^sT That the execution creditor, by directing and advising the sheriff to re- move the chattels in violation of the statute, does not himself become liable in damages, seems unquestionable.^^ss 1350 Lane v. Crockett, 7 Price, 566; 1355 Thomas v. Mlrehouse, 19 Q. B. Wren v. Stokes [19023 1 Ir. 167. DIv. 563. 1351 Foster v. Hilton, 1 Dowl. 35 ; 1356 Thomas v. Mirehouse, 19 Q. B. Calvert v. Joliffie, 2 Barn & Adol. 418. Div. 563. 1352 Fisher v. Allen, 2 Phila. (Pa.)' isst Van Horn v. Goken, 41 N. J. 115. Law, 499. 1358 Rotherey V. Wood, 3 Camp. 24; isss Gibson v. Princeton Bank, 20 Cloud v. Needles, 6 Md. 501. N. J. Law (Spencer) 138. 1354 See ante, note 1348.