CIornFll ICaui ^rljnnl ffiibtary Cornell University Library KF 590.T24 1887 V.I A treatise on the American law of landio 3 1924 018 801 260 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018801260 A TREATISE ON THE AMERICAN LAW OF LANDLORD AND TENANT. By JOHIS^ l>r. TAYLOE. EIGHTH EDITION. EDITED By henry F. BUSWELL. Vol. I. BOSTON: LITTLE, BROWN, AND COMPANY. 1887. Entered according to Act of Congress, in the year : By John N. Taylob. In the Clerli'B Office of the District Court of the United States, for the Eastern District of New Torlt. Entered according to Act of Congress, in the year 1873, By John N. Taylor, In the Office of the Librarian of Congress, at Washington. Entered according to Act of Congress, in the year 1879, By Little, Bbown, and Company, In the Office of the Librarian of Congress, at Washington. Entered according to Act of Congress, in the year 1886, By Little, Brown, and Company, In the Office of the Librarian of Congress, at Washington. KF Univebsity Press : John Wilson and Son, Cambridge. PREFACE TO THE iEfGHTH EDITION. In the preparation of this edition, the later decisions have been collected and carefully collated with the text and the notes to the former editions. Such cases as merely af&rm or apply legal principles already suffi- ciently stated in the work are cited by name in their appropriate places, while the substance of those deci- sions which affirm new principles, or modify or extend the application of familiar rules, will be foimd em- bodied in the notes. In all, about one thousand new cases are cited in the present edition. In the text of the work, beyond the correction of obvious typographical errors, the only changes made are such as were rendered necessary by judicial de- cisions reversing or explaining former rulings, and by changes in the statute law. The index has been revised and somewhat enlarged by the addition of new headings and cross-references. In the belief that with the increasing size of the book, occasioned by the addition of notes to the suc- cessive editions, better means of reference to the subject-matters treated in the work have become IV PEEFACE. necessary, the editor has prefixed to each paragraph of the text a brief statement of its subject-matter ; and these lines are collected into analytical Tables of Con- tents pre6xed to each volume of the work. The edi- tor believes that these additions will be found to increase materially the usefulness of the book. H. F. B. Boston, January, 1887. PREFACE TO THE SEVENTH EDITION. At the death of the author of this treatise, the work was found to have received at his hands some prepa- ration for a new edition. But it became apparent upon examination that a revision throughout was still necessary. In discharging this duty, it has been the editor's endeavor to keep intact as far as possible the text as Mr. Taylor left it; and no alteration has been made in the general plan of the book. In a treatise, however, which has occupied this department of law without an American rival for nearly thirty years, considerable changes are indispensable to keep pace with the development of the law and the just require- ments of the profession. In preparing this edition, over two thousand cases, the majority of them decided since the last edition, have been carefully examined, and their substance incorporated ; the index of matters has been much enlarged and made as comprehensive as space allowed, and the text has been thoroughly revised, for the removal of errors. Most of the new material has been placed in the notes; but in a few instances substantial additions VI PREFACE. have been made to the text; as in the sections on the demise of lodgings ; the landlord's liability for the premises while under lease ; the tenant's covenant to pay taxes ; and the liability of sureties, — the last of which was added by the author. At the same time, the excision of redundant or merely repeated matter, particularly in that portion of the treatise relating to remedies, a condensation of the notes, and the removal from the text to the notes of statutory provisions set out at large, have kept this volume so far within bounds that it will exceed the size of the preceding edition by less than one hundred pages. JOSEPH WILLARD. Boston, January,, 1879. PREFACE THE FIRST EDITION. The following attempt to reduce the Law of Land- lord and Tenant to a more than ordinarily concise and systematic form will, it is hoped, meet with the indul- gence of the profession for whose use it is principally designed. The learned and voluminous works of Wood- fall, Chambers, Comyn, and Piatt, are, to a considerable extent, useless in this country ; not from any want of accuracy, fulness, or perspicuity, in their treatment of the subject, but from their failing to exhibit a satis- factory view of this branch of law, as modified by our republican institutions, and re-formed by the commer- cial spirit of our age. An exposition of the law on this side of the Atlantic, on a subject of such daily and hourly interest, which shall exhibit the various relations of the parties to a tenancy as understood among us, unincumbered by the useless learning of the English treatises, and adapted to our particular circumstances, has,, therefore, become a matter of im- portance, not only to the profession, but to the entire community. Vlll PEEFACE. This work does not aspire to the merit of having achieved so desirable an object, but is merely intended to present a practical summary of the doctrines of the common law, — including the English cases, so far as they are applicable in the United States, with their statutory alterations and modifications, and the lead- ing decisions in those States where legal science has been most cultivated and improved. Some topics have been introduced which are not usually discussed in treatises on this subject, but are still intimately connected with it, and must therefore be found useful to the practitioner. Beginning with several modes of creating a tenancy, its varieties, com- mencement, and termination, the work proceeds to treat of the formal parts of the instrument of demise, its execution, and the capacity of the various contract- ing parties thereto ; explains the rights and liabilities generally incident to the relation of landlord and tenant, embracing the subjects of division-fences and party-walls, of mutual liabilities for negligence, of nuisances and easements, with rights of way, com- mons, fisheries, watercourses, removal of buildings, and support from neighboring soil and buildings. It then examines the special covenants and conditions which the parties usually employ for the purpose of limiting and defining their respective rights and duties; the consequences of an assignment of the lease, as well as of the reversion; the several modes of dissolving a tenancy, and the consequences of a dissolution, including the penalty of holding over, the PEEFACB. IX right to emblements, and the removal of fixtures; together with the legal remedies open to either party, and a selection of the most approved precedents of leases and forms of proceeding. If, in the execution of the design, some topics have been omitted, or others not so fully discussed as, in the opinion of some persons the subject would seem to warrant, it is to be borne in mind that the admis- sion of everything connected incidentally, as well as directly, with the relation of landlord and tenant, would have increased the work to an extent incon- sistent with the original object. That object was to furnish a compendium, which should not only be useful to the profession in the ordinary routine of business, but of easy reference to every member of the two great classes of society whose rights and duties are the subject of inquiry. The Author will feel satisfied if, in this attempt to abridge the labors of an arduous profession, he shall in any tolerable degree have succeeded in exhibiting so accurate and concise an exposition of his subject as will be useful to practical men, whether in or out of the profession. TABLE OF CONTENTS. VOLUME I. PAGE Introduction, §§ 1-13 1-11 CHAPTER I. THE CREATION OF A TENANCY. 5 14. Arises from Lease or Demise. — Rent 12 15. Term. — Interesse termini. — Entry Essential 14 16. Term, Assignment of . — Under-lease 15 17. Demisable Property, what 17 18. Personal Chattels upon the Land, how demisable ...... 19 Section I. — A Tenancy by Implication. } 19. When implied ; generally 20 20. Implied from special Circumstances 22 21. No Implication from mere Occupancy 23 22. Implication from Tenant's holding over 24 23. Fact of, not conclusively presumed from Receipt of Rent . . 26 24. Mere Joint Occupancy, or Occupancy on Shares not a Tenancy . 27 25. Evidence arising, from Occupancy may be controlled .... 80 Section II. — By an Express Agreement. f 26. Leases by Parol or Deed 33 27. Parol Leases for Years valid at Common Law 34 28. Rule changed by Statute of Frauds 35 29. How limited in different States 36 30. Agreements to Lease under Statute of Frauds 37 31. Parol Licenses valid 38 32. Parol Agreements to Lease, when enforced in Equity ... 38 33. Substantial Performance, what. — Party's Representatives bound by Decree 39 34. Livery of Seisin abolished. — Seal 40 35. Sufficient Signature, what 41 36. Place of Signing 43 Xll TABLE OF CONTENTS. Section III. — On an Agreement for a Lease. FAGG i 37. How distinguished from a Lease 44 38. Intention of the Parties governs the Construction 45 39. Words to create a Leasehold Interest 46 40. Conditional Demise generally construed as an Agreement only . 48 41. But when Conditions are executed or Instrument so provides, may be a Lease 48 42. To create Lease; Term and Rent must be certain 50 48. Actual Transfer of Possession creates Lease 51 44. Agreement must be Explicit. — Collateral Matter 51 45. Usual Covenants 53 46. Damages for Breach of Agreement. — Equitable Relief ... 54 47. Remedy at Law. — Specific Performance 55 48. Agreement to lease, when enforced in Equity 56 49. Agreement must be in Writing unless confessed or partly per- formed 57 CHAPTER II. OF THE DIFFERENT SPECIES OF TENANCY. Section I. — Tenancy in Fee or for Life. § 50. Fee may be created in form of Lease . 59 51. Tenancies for Tears and for Life distinguished 59 52. Life Estate, how created 60 53. Without limitation in time, Estate is for life 60 Section II. — Leases for Tears, and from Year to Year. § 54. How created 61 55. Arise from general Occupation 62 56. Arise from void parol Demises for Tears 64 57. But not on Demises for less than a Tear 65 58. How determined 66 Section III. — Tenancy at Will. § 59. How created , 67 60. Strict and General 68 61. Strict and General distinguished 70 62. How determined 71 63. Notice to Quit generally necessary to determine 72 TABLE OF CONTEHTS. xiii Section IV. — A Tenancy at Sufferance. FAOE § 64. Defined 73 65. Landlord's Option. — Tenant may become Tenant at Will . . 75 Section V. — Demise of Lodgings. § 66. Status of the Occupant 76 67. Lodgers qfux^ Tenants 77 CHAPTER III. THE DURATION OF A TENANCY. Section I. — The Commencement of a Lease. \ 68. Fixed by Delivery of Deed and Entry 79 69. Of Payment of Rent, Effect to fix. — Other Circumstances . . 80 70. Tenancy for Years to have fixed Beginning 81 71. Impossible Dates 82 72. future Possession. — Interesse Termini 83 Section II. — Termination of a Lease. } 73. Terms not limited by Law 84 74. Perpetual and Conditional Leases 84 75. Term to be fixed. — How ascertained 85 76. Ascertained by extrinsic Reference 86 77. Ascertained by Matter er^osi /acta 87 78. Terminal Days, Rule as to 89 79. Conflicting Authority as to 90 80. Void Parol Lease may regelate Duration of Tenancy .... 91 81. Optional Duration refers to Tenant's Option 91 82. Tenancy from Tear to Year determinable by Notice .... 92 83. Lease to exceed Lessor's Term void in Law, but valid in Equity . 93 CHAPTER IV. THE CONTRACTING PARTIES. 1 84. Who may grant Leases 95 85. Lessor's Possession essential. — Rule modified as to Mesne Les- see, Heir, and Vendee 96 86. Owner's Possession presumed. — Undisputed Right of, sufficient . 97 X17 TABLE OF CONTENTS. PAGE § 87. Present inoperative Leases operate by Estoppel 98 88. Successive Leases. — Estoppel applied to 99 89. Tenant's Estoppel 100 90. Mutual Estoppel 101 91. Estoppels run with the Land 101 92. Rule of Assignee's Estoppel obsolete 102 Section I. — Leases by and to 'Infants, § 93. Voidable, and when 103 94. Ratification implied 104 95. Who may avoid. — Burden to prove Infancy 105 96. Infant Lessee's Ratification implied from Possession . . . 105 Section II. — By Persons of unsound Mind. § 97. General Incapacity of Insane Persons 107 98. Weakness alone does not incapacitate 108 99. Nor old Age alone 109 100. Drunkenness as avoiding the Contract 110 Section III. — By and to Married Women, § 101. Disability of, at Common Law Ill 102. Lease by Husband of Wife's Property 112 108. Deed of Wife, how far Effectual 118 104. Wife's statutory Right to convey 113 105. Married Women as Lessees at Common Law 115 106. May Contract as to Separate Property 116 107. Responsible on her Covenants and for Rent 117 Section IV. — By a Tenant for Years or for Life, % 108. Tenant may underlet and enforce Covenants 118 109. Estate and Liabilities of Under-lessee 119 110. Liabilities of Mesne Lessee 120 111. Duration of Under-lease limited. — How determined. — Under- lessee may distrain 121 112. Leases for Life, how determined 121 113. Leases for Years by Tenants by the Curtesy, or in Dower . 122 Section V. — By Joint Tenants and Tenants in Common. § 114. OfOne,passesundividedInterest. — Survivorship. — Partners. 128 115. Effect of Lease by. — Actions on J25 116. Form of Lease by Tenants in Common 126 117. Partners as Parties to Leases — Deedof One binds the Others . 127 TABLE OF CONTENTS. XV Section VI. — By Mortgagor and Mortgagee. FAOE § 118. By Mortgagor in Possession. — Good except as against Mort- gagee 128 119. Mutual Rights of Mortgagee and Tenant under prior Lease . 129 120. Under subsequent Lease, Tenant without Right at Common Law 129 121. Like Rules in the United States 131 122. Mortgagee's Right limited in certain States 133 123. In New York. — Mortgagee's Equitable Remedy .... 134 124. In Massachusetts, Mortgagor in Possession entitled to Rents . 135 125. Mortgagor and Mortgagee to join in Lease 136 Section VII. — By Corporations. § 126. Aggregate, may Lease as natural Persons 137 127. Bound by Parol Contracts of Directors and Agents . . . 139 128. Majority of Directors may bind 140 129. Seal of , necessary in Deed. — How AfiSxed and Proved . ■ 140 Section VIII. — By Trustees. §130. May grant Leases. — Cestui que trust to yAn 141 131. Duration of Leases by Trustees, may exceed Limits of the Trust Estate 142 132. Trustees' Leases, when void in Equity 143 Section IX. — By Executors and Administrators. § 133. Respective Powers of 144 134. Leases by, where void in Equity. — Legatee to be joined . . 145 Section X. — By Guardians. § 135. Powers to Lease at Common Law now generally superseded . 146 Section XI. — By Committees and Receivers. § 136. Powers of, how derived 147 Section XII. — By AgeiMs. § 137. May execute Leases. — Who may. — How authorized . . . 148 138. Agreement for Lease by, binds Principal. — Acts beyond Au- thority 151 139. Act under Power to be in Name of Principal 152 140. Lease must appear to be by the Principal 152 141. Proper Form of Execution 153 XVI TABLE OF CONTENTS. Section XIII.— -By -^^iens. FA6B § 142. Authority to grant does not imply Authority to accept Lease . 154 143. Right to accept Leases limited at Common Law .... 154 144. Statutory Right to accept or assign Leases 155 145. All Disabilities removed, where 156 CHAPTER V. THE INSTRUMENT OE DEMISE. Sectiok I. — The Formal Parts of a Lease. \ 146. Deed necessary to grant Life Estate. — Particulars of . . . 157 147. Deeds-poll. — Acceptance of, implied 158 148. Date not essential; takes Effect from Delivery 159 149. Names of Parties. — Mistake in, does not invalidate. — Aliter, as to Omission 159 150. Recitals. — Errors in, immaterial. — Exceptions .... 160 151. Misrecitals, how controlled 161 152. Consideration to appear 162 153. As between Lessor and Lessee, fraudulent or immoral Con- sideration avoids Lease 162 154. Reservation of Rent, how expressed 163 155. Reservation to follow the Inheritance 164 156. Misdescription of Reversioner immaterial 165 157. Exceptions, when void for Repugnancy 166 158. Reservations distinguished from Exceptions 167 159. Words of Demise 168 160. Proper Description, what. — Uncertainty, how far explainable . 170 161. Incidents pass by the Grant 172 162. But not the indirect Incidents 173 163. Certain Description not controlled. — Construction . . . 174 164. Description by Reference. — Parol Evidence. — Mistakes not fatal 176 165. Fraudulent Alterations, Effect of 177 Section II. — The Execution of a Lease. i 166. What constitutes. — Seals 179 167. Delivery, what constitutes 181 168. Inferred from Record and other Circumstances 182 169. Delivery as an Escrow, effect of 183 170. Witnesses 184 171. Record, effect of 185 TABLE OF CONTENTS. xvii CHAPTER VI. OF RIGHTS AND LIABILITIES GENERALLY INCIDENT TO A TENANCY. PAGE § 172. Eeciprocal Rights and Duties of the Parties, generally . . 188 Section I. — On the Part of the Landlord, § 173. May protect his Reversionary Rights, and how 189 174. Eight to enter Premises strictly a Reserved Right. — Its Inci- dents 191 175. Liability to Strangers for Injuries, what 193 175 a. Liability to Tenant for Injuries 197 Section II. — On the Part of the Tenant. § 176. Nature of his Interest. — When it attaches. — Right of Pos- session 200 177. Measure of Tenant's" Damages as against Landlord . . . 202 178. Rights incident to Tenant's Possession. — May defend it. — Liable for Waste, etc 203 179. Must preserve Boundaries. Enlargements presumed to fol- low the Reversion. — Public Burdens 206 179 a. Liabilities to Co-tenant 207 180. Not to deny Landlord's Title, nor attorn to Stranger . . . 209 181. To be compensated for Injury done for public Benefit . . 210 182. Liabilityto Third Persons. — To Under-Tenants .... 212 Section III. — Division- Fences and Party-Walls. jl83. Tenant bound to maintain. — Common-law Rule .... 213 184. Statutory Provisions 214 184 a. Respective Duties of Parties 217 185. Joint Obligation to maintain 217 186. Certain Animals kept at Owner's Peril. — Highways not Pasture 218 186 a. Right to remove Fence 219 187. Right to erect Building 220 188. Division-wall separate Ownership in. — Party-walls . . . 221 189. Respective Rights as to Party-walls 223 190. Easements to use Walls 224 191. Boundary Trees, Ownership and Right in 226 VOL. I. — 6 XVIU TABLE 0¥ CONTENTS. Section TV. — Liability for Negligence. PAGE j 192. Tenant's Duty to Strangers 227 193. Liability of Owners of Structures, etc 229 194. To Intruders and Trespassers 230 194 a. For illegal and dangerous Acts 231 195. For Injuries done by Animals 231 196. For Fires beginning on the Premises 283 197. For Acts not in Themselves Unlawful 235 198. Owner bound to Reasonable Care 236 199. Care to be proportioned to Danger. — Rule of Contributory Negligence 237 Section V. — Of Nuisances. ( 200. Actions for, by Landlord and Tenant 239 201. What may Constitute 240 201a. Obstruction of Ways 243 201 S. Business carried on in the Street 244 202. Causing Assembly in Street 245 203. May arise from Act in Itself Lawful 245 204. Injury must be Actual and Substantial 246 205. Reasonable exercise of Lawful Right, though Harmful, does not Constitute 248 206. Diminution of Enjoyment of Easement Constitutes . . . 248 207. Prospective Injury, how Prevented 249 208. Prescriptive Right to do Injurious Acts. — Does not apply to Public Nuisance 250 209. Equitable Power to Restrain, when Exercised 251 209 a. Abatement of 253 210. Reasonable Care to be used in Abatement of 254 211. Private Action for. — Damages. — Demand 255 Section VI. — Of Easetnents. § 212. In General, what 256 (a.) Of a Right op Way. 218. Defined. — Arises from Grant, express or implied, or from Necessity 258 214. From Necessity. — When Incident to a Grant. — Rights of Parties .259 214 a. Liability of Owner of Servient Estate 259 215. Along Banks of navigable Streams 260 TABLE OP CONTENTS. xix PAGE § 216. For special Uses, limited to such Uses 261 217. When defeated by Non-user or uniting Possession .... 262 (6.) Of Commons. 218. Defined. —Right of, exists in New York 263 219. Appendant or Appurtenant. — Of Pastures and Estovers . . 264 220. Estovers a joint Right, and not Apportionable 265 (c.) Of Fisheries. 221. General or Private, defined 266 222. In navigable Waters a public Right. — Aliter in Streams not navigable, unless by Prescription 266 223. Rights of Abuttors on Navigable Waters 267 (d.) Watercourses. 224. Natural, Rights of Owner of the Soil in 268 225. Rights in, not to be used Unreasonably or Injuriously . . 271 226. Right to accumulate and store Water 272 227. Right to injurious Enjoyment may arise by Grant or Pre- scription, but not Otherwise 273 228. Prescriptive Right, how acquired 273 229. Streams as Boundaries. — Rights of Abutters 275 230. No Prescriptive Right in Subterranean Waters . . . . . 276 (e.) Removal of Adjoining Buildings. 231. With ordinary Care, Owner not liable for Injury to Abutters . 277 232. Question of Fact whether due Care is Exercised .... 278 (/.) Right to Support from Neighboring SoiIj and Buildings. 233. Attaches to Land but not to Buildings thereon, unless ancient 279 234. Ancient Erections, when not entitled to Support .... 281 235. Dominant Estate to be kept in Repair 282 236. Servient Estate, User of, subject to the Easement .... 283 (g.) How AN Easement mat, be Created or Extinguished. 237. Arises from Agreement. — Adverse Possession 284 237 a. License Defined. — How to be exercised. — Revocation of . 286 238. Assignment of Easement. — Follow the Estate 287 239. How extinguished 287 240. Extinguishment of, by Abandonment or Non-user .... 290 241. Extinguishment of, by Operation of Law 291 242. By Act of Owner of Dominant Estate 292 243. How Acquired by Prescription 292 XX TABLE OF CONTENTS. CHAPTER VII. OF COVENANTS AND CONDITIONS. PAGE § 244. Create Respective Rights and Liabilities 294 Section I. — Of Covenants. §245. Defined. — Created by Deed. — Tenant's Estoppel . ... 294 246. Express or Implied. — Inferred from Construction of the Instrument 295 247. Inferred from Circumstances. — Whole Instrument to be Construed together 297 248. Exception may amount to 298 249. May rest on a Recital 299 250. Proviso may be Equivalent to 300 251. License may operate as 300 252. Implied, arise as Conclusions of Law 301 253. Implied, cannot Control but may Enlarge or Qualify Express Covenants 303 254. Of mesne Lessors and their Lessees 304 255. How Limited by Construction . . 305 256. Express and Implied, Distinctions between 305 257. Implied, Statute as to, construed in New York 806 258. Parties. — Who may maintain Action on Covenants . . . 306 259. Grantee in Deed-poll not liable in Covenant 307 260. Personal, or running with the Land 308 261. Running with the Land, what. — Concern the Land. — Priv- ity of Estate essential to Create 309 262. Specific Covenants running with the Land 313 263. Personal, as not concerning Land, bind Covenantor only . . 313 264. Joint or Several. — Joint and Several 316 265. Dependent, when each is Consideration of the Other . . . 317 266. Void when Deed, is void or there is no Estate in the Cove- nantor 319 267. Dlegal, or against Public Policy, void 319 268. Oppressive, Equity will not enforce 320 269. How discharged. — How released by Act of Covenantee . . 321 270. Performance rendered Impossible by one Party, Rights of other Party may be Enforced 321 TABLE OF CONTENTS. xxi Section II. — Of Conditions. PAGE §271. Defined. — In Law or Deed 322 272. In Law, are absolute Limitations of the Estate. — In Fact, are Provisos merely 324 273. Conditions and Limitations, Distinguished 324 274. Implied Conditions 326 275. Precedent and Subsequent 326 276. Inferred from Construction of Instrument and Intent of Parties 327 277. Precedent, how Construed. — Equitable Relief from . . . 329 278. Words to Create 330 279. Effect of certain Words to Create 330 280. Created by Separate Instrument. — Time within which to Perform 331 281. Impossible Conditions void 332 282. Breaohof. — When Equity will enforce Forfeiture . ... 332 283. Repugnant, or against Public Policy, void 333 284. Against Alienation, when Void 333 285. Cases in which held Valid 334 286. Against doing Particular Acts 336 287. Forfeiture for Breach of, how Waived 337 288. Subsequent Breach of, how Waived 337 289. Substantial Performance of, Sufficient 338 290. Clause of Re-entry in Lease 339 291. Re-entry Clause essential to support Action of Covenant . . 339 292. Re-entry to be made during the Term 340 293. Who may reserve Right of Re-entry 341 294. Rights of Lessor's Reversioner 342 295. Of Lessor's Assignee or Grantee 343 296. Of Assignee of Part of the Reversion 344 297. Demand for Rent to precede Re-enti-y 345 298. Where Re-entry not Necessary. — Demand always Necessary . 346 299. Re-entry under English Statute 347 300. Demand dispensed with by Statute 347 301. In New York 347 302. Re-entry on Notice in New York 348 303. Summary Process provided for 349 XXU TABLE OF CONTENTS. CHAPTER VIII. COVENANTS ON THE PART OF THE LESSOR. Section I. — Ths Covenant for Quiet Enjoyment. PAGE §304. Defined.— What it implies. —Runs with the Land ... 350 305. What it intends 351 306. Broken only by Disturbance or Withholding of Possession . 353 307. Certain Words of, construed 354 308. Guarantees Possession, and not Title 355 309. Breach of, Effect of certain Acts to create 355 310. To constitute Breach, Eviction must be by lawful Title . . 357 311. Actual Ouster necessary to constitute Breach 358 312. Lessee's Right to expel Wrong-doer in Possession. — Cove- nant may be extended 358 313. Generally, Molestation must amount to Prohibition of Enjoy- ment 359 314. Eviction, how to be Alleged 360 315. Ouster from Part of Premises treated as Eviction at Tenant's Option .361 316. Immoral Acts of Landlord Equivalent to Eviction .... 363 317. Damages for Breach of the Covenant 364 Section II. — The Covenant against Incumbrances. § 318. What constitutes an Incumbrance . 366 318 a. Liability of Life Tenant to keep down Incumbrances . . 367 319. Generally, prospective Disturbance will constitute Breach of . 369 320. Previously existing Mortgages 369 321. Other pre-existing Incumbrances 370 322. Damages for Breach of Covenant 371 Section IIL — For Further Assurance. § 323. Defined. — Implied in Covenant for Quiet Enjoyment. — Runs with the Land 372 324. Obligations of Lessor under 373 325. Reasonable Acts required by, are necessary Acts .... 374 326. Obligation of Covenantor to execute Deed 374 TABLE OP CONTENTS. xxiu Sectiok IV. — Tlie Covenant to Hepcnr. PAGE § 327. Not an implied Covenant 375 328. In Absence of, Landlord not bound for Repairs 376 329. Nor to Rebuild in Case the Premises are injured by Fire . 378 330. Landlord's Obligations under. — Tenant's Damages for Breach 379 331. Obligations of the Parties under Covenant to Rebuild . . 381 Section V. — The Covenant to Renew the Lease. §332. Defined. —Tenant's Option to Renew 383 338. When Void for Uncertainty 386 334. To be strictly construed 387 335. In the Alternative with other Covenants. — EfEect of . . . 388 335 a. With Stipulation to Convey to Tenant 391 336. Right of Renewal as a distinct Interest. — Specific Perform- ance 392 337. Specific Performance of Covenant, when Decreed .... 393 338. Without Consideration, or Inequitable; Specific Performance of, refused 394 339. Lessee's legal or equitable Remedy. — Remedy barred by Laches 395 340. Renewed Lease, EfEect of 397 Section VI. — 2%e Covenant to pay Taxes and Assessments. § 341. By Landlord, implied. — Tenant may pay Taxes, &c., to protect Himself 398 342. Landlord's Liability to reimburse Tenant for Payments . . 400 CHAPTEE IX. COVENANTS ON THE PART OE THE LESSEE. Section I. — Of the Covenant to Repair, and Serein of Waste. §343. How far Implied 401 344. In Farming Leases 402 345. Waste. — Voluntary or Permissive. — Particular Acts of . . 403 346. Waste. — Consists in first Opening of Soil. — Tends to de- stroy the Demised Property. — Examples 405 XXIV TABLE OF CONTENTS. PAGE §347. Specific Acts of Waste 406 348. Voluntary Waste, what. — Examples 407 349. Permissive Waste, what. — Examples 408 350. Waste by cutting Wood 409 351. Tenant may cut Wood for necessary Repairs or Estovers . . 410 352. Timber felled must be for actual Repairs. — Firewood. — Clearing Land 411 353. Circumstances determine what is Waste 412 354. Landlord entitled to Things Unlawfully Severed from the Soil 415 355. Leases without Impeachment of Waste 415 356. Proper Cultivation required under the Covenant .... 416 357. Express Covenant, Effect of 417 358. Forms of Covenant construed 418 359. Breach of, arises from Want of substantial Repair .... 419 360. Liability under, as affected by Act of God. — Exception of " Fair Wear and Tear " 420 361. Special Covenants construed 422 362. General Covenant with additional Stipulations 424 363. Covenant valid though contained in void Lease 425 364. Under express Covenant, Tenant liable for accidental Injury or Destruction 426 365. May be, apportioned among Assignees of the Reversion . . 427 366. Covenant to Insure 428 367. Duties of Co-tenants under. — Tenant at Will liable only for Waste 428 368. Measure of Damages for Breach of 429 Section II. — Of the Covenant to pay Hent. §369. Rent defined. —Whence it issues 431 370. Different kinds of Rent. — Each defined 432 371. Express Covenant usual. — But Covenant always implied . 433 372. Express Covenant, Effect of 435 373. Express Covenant Strictly Construed 437 374. Recoupment in Action on Covenant to pay Rent .... 437 375. Tenant bound by express Covenant although Tenement is Destroyed by Fire 439 376. Stipulations in the Lease for Benefit of the Tenant . . . 442 377. Implied Covenant of Quiet Enjoyment. — Eviction by Title Paramount 443 378. Eviction by Paramount Title from part of Land, Effect of . 445 379. Eviction, in what it Consists 447 380. Mere Entry without Eviction does not relieve from Covenant . 448 381. Acts to produce Eviction. — Intent essential . . . ^ . . 450 TABLE OF CONTENTS. XXV PAGE § 382. No implied Warranty as to Condition of Leased Property . 452 383. Exceptions in Contracts of a Mixed Nature 455 384. Eent not recoverable when Consideration fails 456 385. Apportionment of Rent. — When by Act of Parties Lessee's Consent essential 457 386. Apportionment by Act of Law. — Lessee's Consent not es- sential 459 387. Examples of Apportionment by Act of Law 460 388. Eviction suspends Rent thereafter Accruing 460 389. No Apportionment in respect of Time. — Statutory Exception. 461 390. To whom Kent may be Payable 463 391. When Rent becomes Due and Payable 464 392. Place of Payment of Rent 466 393. Tender of Money for Rent. — How made. — When dispensed with 467 394. Tender of Specific Articles. — Of Coin. — Of Bank-notes . 468 Section III. — The Covenant to pay Taxes, Charges, and As- sessments, § 395. Tenant to Pay, and Landlord to Reimburse 470 396. English Rule as to Yearly Taxes 471 397. Tenant's Covenant to pay. — Public Duties, &o 472 398. Covenant to pay all Taxes. — Construction of 474 399. Taxes relate to assumed Day of Valuation. — Lessor's Rem- edy for Non-payment of 476 Section IV. — The Covenant to Insure. § 400. Not an Implied Contract. — Is a Personal Obligation. — Con- struction of 477 401. With Covenant to keep in Repair, Effect of 478 Section V. — The Covenant not to Assign or Underlet. §402. Not an Implied Covenant. — Usually inserted in Lease . . 479 403. Express Covenants strictly Construed 480 404. Covenant for Right of Pre-emption 482 405. Gratuitous Underletting. — To Partners. — To Lodgers . . 482 406. Hypothecation of Lease. — Advertising Premises. — Executor bound by the Covenant 483 407. Covenant against Particular Assignment 484 408. Assignment by Operation of Law not a Breach 485 409. But, by Stipulation, may be Ground of Forfeiture .... 486 XXVI TABLE OP CONTENTS. FACE § 410. Covenant discharged by License from Landlord 487 411. Effect of Acceptance of Kent after Breach 488 412. Waiver of Breach of Condition 489 413. Landlord and Lessee's Assignee. — Equity -will not relieve against Forfeiture 489 Section VL — The Covenant to reside on the Premises. §414. How broken. — Kuns with the Land 491 Section VII. — The Covenant to Build after a prescribed Pat- tern. § 415. "When enforced in Equity. — Remedy at Law for Breach of . 492 Section VIII. — The Covenant against carrying on particular Trades. § 416. May be enforced in Equity. — Run with the Land .... 493 417. For Total Restraint of Trade, against Public Policy. — For Limited Restraint, when valid 494 418. Never to be Implied 496 419. Different Covenants construed 498 Section IX. — The Covenant for particular Modes of Culti- vation. § 420. Different Forms of. — Implied from Custom 499 421. To manage Farm in a Husbandlike manner. Implied . . . 500 422. When Equity will Enforce 500 423. Legal and Equitable Remedies on 501 Section X. — The Covenant to Pe-deliver Fixtures, etc. § 424. Affords Remedy for Injury or Removal of 502 Section XI. — The Covenant to secure Payment of Pent and the Performance of Agreements. §424a. Different Forms of. — Landlord's Lien. — Statutory Liens . 503 424 b. Obligations of Tenant's Surety 507 TABLE OF CONTENTS. XXvii VOLUME 11. CHAPTER X. OF THE TRANSFER OF A LEASE AND ITS CONSEQUENCES. PAGE 1 125. Liabilities of the Faities affect their Successors 1 Section I. — Of Assignments in Fact and in Law. 1 426. By Lessor or Lessee. — Pass the whole Estate of the Assignor 1 427. By Operation of Law, when. — Examples. — In Fact, created by Written Instrument 3 428. Particulars of. — What may operate as 4 429. Requisites of a valid Assignment 5 430. What Estates are Assignable 6 431. Covenants in 7 432. Marriage operates as, at Common Law 7 433. Devisee is an Assignee. — Lease a disposable Interest ... 8 434. Executor or Administrator as Assignee. — Rights of . . . 9 435. Sale under Execution operates as Assignment. — Effect of . 10 Section II. — The Mights and Liabilities of an Assignee. i 436. Privity of Estate and Contract 11 437. Takes with Assignor's Rights and Obligations 12 438. Lessee cannot avoid his Obligations by Assigning .... 13 439. Assignee of Reversion succeeds to Landlord's Rights ... 14 440. Rule formerly Limited, but now Absolute 16 441. Assignee of Reversion on Parol Leases, Rights of .... 17 442. Tenant to have Notice of Assignment. — Arrears of Rent . . 18 443. Liability of, on Covenants running with the Land .... 20 444. Not Liable on Personal Covenants. — Duration of Liability . 21 445. May take Advantage of certain Covenants, when .... 22 446. In order to Sue, must hold Entire Estate of the Lessor ... 23 447. After Grant of Reversion, Lessor to sue only on Personal Covenants 24 448. Liability of Lessee's Assignee and Sub-tenant 25 449. Liability of Assignee and Sub-tenant distinguished .... 26 450. Liable without Actual Entry 28 XXVlll TABLE OF CONTENTS. PAGE § 451. Assignments by Deed, and in Law. — Their Effects distin- guished 29 452. Assignment over, generally discharges Future Liability . . 30 453. Assignment over, Essential to its Validity 30 454. Liability of, on certain Covenants 31 465. Mortgagee generally considered an Assignee 32 456. Liability of Assignee of Insolvent Debtor 33 457. Insolvency as affecting Right to collect Subsequent Rents . . 35 458. Trustees for Creditors, how far liable for Rent ..... 37 459. Executors and Administrators. — Actions by and against, for Rent 38 460. Bound only by Covenants Running with the Land .... 39 461. May avoid Liability by Assigning. — How Chargeable ... 40 462. Heir, how far Chargeable on his Ancestor's Covenants ... 41 463. Heir of Lessee, Rights of 41 CHAPTER XI. THE MODES OF DETERMINING A TENANCY. ) 464. By what Acts or Events terminated 43 Sectiok I. — By Lapse of Time. i 465. Determines Estate as by Operation of Law 43 Section II. — By Notice to quit, \ 466. Tenancy at Will, Different Ways of Determining .... 44 467. Tenancy from Year to Year only determined by Notice . . 46 468. Particulars of 47 469. Tenant under Void Lease or Agreement entitled to .... 48 470. Successors to Tenant's Estate, when entitled to 48 471. When not necessary. — Examples 49 472. To entitle to, must be Privity. — Acts of Tenant to render Unnecessary 51 473. Acts of Landlord to render Unnecessary 52 474. Mortgagor in Possession, when Entitled to 53 475. When to be given. — Length of 54 476. Form of 56 477. Day named to correspond to Conclusion of Term 57 478. Waiver by Tenant of Irregularity in 58 479. Must be in Name of Landlord. — By Tenants in Common and Joint Tenants. — Agents. — Partuers 59 TABLE OP CONTENTS. Xxix PAGE § 480. Unauthomed, not cured by subsequent Adoption. — By Re- ceivers. — Corporate Officers 60 481. To whom to be given 61 482. By Landlord, to be in Writing 62 483. Form of Words of. — Description of Premises 63 484. Sufficient Service of 64 485. Waiver of, what Acts constitute 66 486. Subsequent Notice generally a Waiver 67 487. Determines Tenant's Estate absolutely 69 Section III. — £y Forfeiture. § 488. Incurred, anciently, at Common Law, when ^ 70 489. Incurred by Breach of Stipulation, when 70 490. Re-entry for Waste 78 491. Of Whole Estate, notwithstanding Severance of Occupation . 74 492. Who may re-enter. — Right Optional. — Tenant's Estate sub- sists till Re-entry 75 493. For Non-payment of Rent. — Demand a Pre-requisite to, at Common Law 76 494. Demand, how far necessary in different States 78 495. Tenant's Equitable Relief against Re-entry 80 496. Equitable Relief to Tenant, when refused 81 497. Waiver of Forfeiture by Acceptance of Rent 88 498. Waiver by other Acts of the Landlord 85 499. Acceptance of Rent accrued before Forfeiture 86 500. Continuing Cause of Forfeiture not waived by Acceptance of Rent. — Examples 87 501. Waiver of continuous Condition 88 Section IV. — £y Merger. )502. Defined 89 508. How produced 90 504. What Estates will merge. — When Merger not permitted . . 91 505. Eistates merging must be held in same right. — Exceptions . 92 506. Remote Estate must be as large as, or larger than the Preced- ing Estate 98 Section V. — By Surrender. (507. Defined. — By Express Words, or Operation of Law ... 93 508. To whom to be made 95 509. To be by Written Instrument 95 510. Words to Create. — By Construction 98 XXX TABLE OF CONTEKTS. FAGH § 511. Destruction or Cancellation of Deed not a Surrender ... 99 512. By Operation of Law. — Acceptance of new Lease .... 99 513. Operation of New Lease to Create 101 514. By Parol Acts 103 515. By change of Possession. — Implied from Acts of Parties . . 104 516. Underletting. — Substitution. — Effect of Each 106 517. To discharge Tenant, Agreement to Substitute must be mu- tual 107 518. Effect of, on Rights of Parties 108 Section VI. — Contingent Modes of Dissolving a Tenaricy. (a.) Premises Taken eok Public Use. § 519. Legal Taking avoids outstanding Lease 109 (J.) Destruction of Premises. 520. In Absence of Covenant, extinguishes the Lease Ill (c.) Using the Premises for an Illegal Purpose. 521. When immoral User of the Premises avoids the Lease . . . 113 {d.) Tenant's Disclaimer. 522. What. — When it avoids the Lease 115 CHAPTER XII. THE CONSEQUENCES OF A DISSOLUTION. \ 523. Respective Rights of Parties on Termination of Tenancy . . 118 Section I. — The Liability of a Tenant holding over. !524. Duty of , to surrender. — Liability for Rent continues . . . 119 525. Bound by Terms of the original Demise 121 526. When a Trespasser. — By Statute 123 527. Demand of Possession a Pre-requisite to Suit 124 528. Notice to Tenant in Possession required. — When to be given 125 529. Statute Penalty in certain Cases. — Double Rent .... 126 530. Action for Special Damages 127 TABLE OF CONTENTS. Xxxi Section II. — Mutual Privileges after Dissolution. PAGE § 531. Forcible Entry by Landlord under Plea of Title 128 532. Landlord may enter subject to Indictment for Excessive Force. — Contrary Authority 129 533. Tenant's Eight to remove his Effects 132 . Section III. — Tenants Right to Emblements. §534. Right defined. — To what things it extends 134 535. In what cases Right attaches 135 536. Does not attach to a Defined Tenancy for Years 137 537. In Tenancies at Will. — Of Mortgagees 138 538. Custom in favor of Tenants for Years 139 539. Custom not to control Written Instrument 140 540. Custom a part of the Contract when not repugnant .... 141 541. Manure, when to be returned to the Soil 143 542. Mutual Privileges founded on Usage 145 543. Right lost by Tenant's Acts. — General Right to remove . . 146 Section IV. — The Tenants Right to remove Fixtures. §544. Fixtures, what. — As between Grantor and Grantee. — Be- tween Landlord and Tenant 147 545. Trade Fixtures, what 150 546. Things required for Purposes of Trade are 152 547. Domestic Fixtures, what 153 548. Erections for Agricultural Purposes. — Differing Rales as to . 155 549. How far Personal Property. — Removal of 157 550. Must be capable of Removal without Injury to the Freehold . 158 551. Time within which Tenant may remove 159 552. Renewal or Surrender as determining Right to remove . . . 162 553. Title to, vests in Landlord on Tenant's quitting Possession . 164 554. Custom as to particular Articles. — Agreements 164 CHAPTEE Xm. THE LANDLORD'S REMEDIES. § 555. Respective Remedies of the Parties, wha,t 167 Section I. — Of a Distress for Rent. §556. History of the Remedy 168 557. Nature of the Remedy 169 558. In what States it exists 170 XXXU TABLE OF CONTENTS. PAGE § 559. How Limited in Certain States 172 560. Lies for all Rents reserved on Lands or Tenements . . . 173 561. Actual Demise at fixed Rent a Pre-requisite to 174 562. Certain Rent. — Tenant not in Full Possession 175 563. Actual Demise essential to. — Agreement to Lease insuflftcient 176 564. Holding over, EfEect of on the Eight. — Other Circumstances 177 565. Efiect of Judgment for Rent. — Note. — Bond. — Agreement for Re-entry. — Surrender, etc 178 566. Previous Demand not necessary. — Tender, effect of . . . 180 567. In whose Name to be Levied 181 568. Assignee of Reversion may distrain 182 569. By Joint Tenants. — Coparceners. — Tenants in Common . 182 570. By Husband and Wife. — Guardians. — Executors. — Receivers 183 571. By Mortgagees 184 572. As respecting. Duration of Term, when to be made . . . . 184 573. As respecting Rent-day, when may be made 186 574. Generally, to be made on the Premises yielding the Rent . 187 575. Pursuit of Chattels removed to avoid Distress. — Estrays, when liable 188 576. Of Goods removed. — Rules in certain States 188 !577. Goods of Strangers generally not Liable after Removal . . 190 578. Sufficient Acts of Distraint. — Entry to Distrain .... 191 579. By whom to be Levied 192 579 a. Landlord's Affidavit; Particulars of 193 580. Warrant of Distress ; Particulars of 194 581. Arrears of Rent Included, but not Damages 195 582. Inventory and Custody of the Goods 195 583. All Movables on Premises subject to, at Common Law. — Rule Changed in Certain States 196 584. Distraint of Property of Strangers. — Observations . . . 197 585. Statutory Exemptions from Distress 198 586. Exemptions from Distress at Common Law 199 587. Of Things in the Hands of Artificer or Merchant .... 200 588. Of Things brought on the Premises in ordinary Course of Business 201 589. Of Things delivered to a Common Carrier, Auctioneer, Manu- facturer 201 590. Exemption by Landlord's Consent. — Goods consigned for Sale 202 591. Animals Ferae Naturae 203 592. Fixtures not distrainable until severed from thg Freehold . 203 593. Goods sold generally not distrainable 203 594. Goods in Custody of the Law . 204 595. In hands of Officers of Court. — Of Boarder in Boarding-house 205 596. Of Foreign Ambassadors and Ministers. — Things in actual Use 205 597. Beasts of the Plough; Sheep; Implements of Trade. — Cattle of Stranger 206 TABLE OF CONTENTS. XXXiii PAOE § 598. Goods in Execution; Landlord's Statutory Remedy against . 207 599. Attaches only to Goods on the Premises 203 600. Contemplates an existing Tenancy 208 601. Goods of Strangers. — Execution is for accrued Rent only . 209 602. Statute for Benefit of Immediate Landlord only .... 209 603. Form of the Statutory Proceeding 210 604. Liability of the Officer under the Statute 211 605. Landlord's Duty in respect of Goods distrained 212 606. Goods in charge of Pound-keeper 212 607. Tenant to have Notice in Order to Redeem 213 608. Landlord not to use distrained Property, generally .... 214 609. Property may be sold. — Appraisal and Notice 214 610. Sale to be made within Reasonable Time. — Application of Proceeds ■ 215 611. Penalty for Clandestine or Fraudulent Removal of Goods . 216 612. Aiding Fraudulent Removal or Concealment 217 613. Landlord Trespasser ab initio at Common Law, when . . 218 614. Rule changed by SUtute 219 Section II. — The Action of Debt for Rent. § 615. Remedy to recover Rent, as such, with Interest 220 616. To maintain Rent due must be Ascertainable 221 617. May be maintained upon a Lease 221 618. So, after Entry for Forfeiture, for Rent accrued .... 222 619. At Common law, not maintainable before Determination of Freehold Lease 222 620. Rests on Privity of Estate or Contract. — Liability of Mesne Lessee 223 621. By Assignee of the Reversion 224 622. Against the Tenant at Sufferance 225 623. Tenant, when liable for Double Rent 226 624. Form of Declaring on 226 625. When Transitory. — When Local 227 626. Against the Executor, Form of 228 627. Tenant's Interpleader 229 628. Against an Infant 229 629. Tenant estopped to deny his Landlord's Title 230 630. Not the Subject of Set-off 231 631. But subject to Tenant's Recoupment 232 632. Lies in behalf of Subsequent Mortgagee, when 233 633. Plea of Tender 234 634. Tenderof Money.— Of Specific Articles 234 TGI,. I. — C XXXIV TABLE OF CONTENTS. Section III. — The Action for Use and Occupation, PA«B S 635. When maintainable. — Seeks as Damages an Equivalent for Rent . 235 686. To maintain Relation of Landlord and Tenant must subsist 287 637. Will not lie after Tenant's Estate is determined or disowned 239 638. Lies for Enjoyment of Incorporeal Hereditaments. — Examples 241 639.- Maintainable by Assignee of Reversion. — N"ot by Parties not in Privity 241 640. Form of Declaring in 242 641. Defendant's Possession requisite. — Constructive Possession 243 642. Against Tenant holding over 245 643. Against Assignees. — Executors or Administrators. — Partners 246 644. Not against Persons Occupying for Immoral Purpose ... 246 645.' After Destruction of Premises by Fire 247 646. Bad Condition of Premises not a Defence. — Recoupment . 247 . 647. Against Tenant abandoning 248 648. Holding being ended by Landlord's Act, Action will not lie 248 649. Eviction, EfEect of on the Remedy 249 650. Rent ascertainable from Void Lease 250 651. Form of Declaring. — Action is transitory 250 652. Against Assignees of Bankrupt 251 653. Facts to constitute Defence 252 654. Defendant not to impeach Lessor's, but may set up his own, Title; or Eviction 253 655. Evidence to support the Action 254 Section IV. — Of a Suit in Equity for Rent. \ 656. Generally, when Equity will decree Payment of Rent . 657. Specific Cases in which Payment may be decreed . . 658. Cases of Mutual Accounts. — Discovery .... 659. Against Under-tenants. — Relief when refused . . . 660. Accounts for Rents and Profits 255 256 257 258 259 Section V. — The Action of Covenant. j 661. Lies on Agreements under Seal 260 662. Lies after Lessor's Assignment. — Alternative with Debt, when 261 663. Lies for Unliquidated Damages. — Includes General Damages 261 664. Lies only in Favor of Owner of Legal Interest. — .Joinder of Plaintiffs 262 665. By Tenants in Common of the Reversion, how brought . . 263 666. Requisites to maintain. — When Assumpsit lies .... 264 667. When to be brought by the Executor . ' 264 TABLE OF CONTENTS. XXXV FAOB § 668. Against Joint, and Joint and Several Covenantors .... 265 669. Executors and Administrators, how bound. — When person- ally liable 266 670. Venue. — Form of Declaring 267 671. Covenants secured by Bond 268 672. Judgment and Execution in Action on Bond 269 673. Sum fixed considered as Penalty or Damages 269 674. Breach of Covenant, how assigned 270 675. Negative Covenant, Breach of, how assigned 271 676. Defendant's Plea of Performance 272 677. ForRent.— Tenant's Plea of Eviction 273 678. On Covenant for Quiet Enjoyment. — Ouster to be Alleged . 273 679. Partial Eviction, when a Defence 274 680. Plea of Assignment 274 681. Payment after Rent-day not a Defence. — Exception. — Dis- charge of Covenant 275 682. Damages not to be Set off. — May be Recouped. — Statute of Limitations. — Bankruptcy 276 683. Dependent Covenants. — Performance of, by the Plaintiff, essential 277 684. Assignments, how proved 277 685. When Equity will relieve Covenantee 278 Section VI. — Actions for Waste. i 686. When and by whom maintainable 279 687. Action on the Case for Waste 280 688. Assumpsit. — Case, concurrent with Covenant 281 689. Common Law Action for. Personal. — Executors and Admin- istrators, how Chargeable for 282 690. Equitable Remedy in New York 282 691. Injunctions to prevent Waste 283 692. Remedies in Special Cases 285 693. Injunction in Special Cases 286 694. Equitable Relief not restricted to the Reversioner .... 286 695. Granted only for Substantial Injury to the Freehold . . 288 696. Generally not granted to a doubtful Title 289 697. Injunction against Life-tenant without Impeachment of waste 290 XXXVl TABLE OF CONTENTS. CHAPTER XIV. OF POSSESSORY REMEDIES. Section I. — The Action of Ejectment., pagb § 698. Nature of the Action. — Founded on Claimant's Right of Pos- session 291 699. When it lies 292 700. Landlord's right to re-enter. — Demand . . .... 293 701. In New York, Landlord entitled to Judgment, when . . . 294 702. Demand and Notice to Quit. — When necessary .... 295 703. By a Mortgagee. — Form of 296 704. Complaint in. — Premises how to be described 298 705. Proof of Title not Required 299 706. Tenant's Estoppel to deny Title 302 707. When Estoppel does not arise 304 708. Matters of Defence not barred by Estoppel 306 709. TenderorPaymentof Rent. — Effect of 309 710. Mesne Profits, Plaintiff entitled to. — How Computed. . — Sep- arate Action for 309 711. Mesne Profits, Mesne Lessee generally not liable for. — De- fences to Action for 310 712. Mesne Profits, Executors and Administrators as such, not lia- ble for. — Matters of Proof in Action for 311 Section II. — Summary Proceedings to Recover Possession,. § 713. To what Cases applicable. — Determine Right of Possession merely 312 714. New York. — Lessor when entitled to Possession .... 314 715. Vacant Possession, what amounts to 315 716. Statutory Proceeding on Vacant Possession 316 717. Forcible Entry and Detainer distinguished from Summary Process 317 718. Notice in Writing a Pre-requisite to Statutory Proceeding . 320 719. Jurisdiction. — Statutory Liability of Judges 322 720. When Proceedings lie 323 720 a. Plaintiff must be entitled to Immediate Possession . . . 326 721. Statutory Proof Required 327 721 a. Particulars of Affidavit 328 721 5. Summons to be Issued 330 722. Service of Summons 331 722 a. Service on Under- Tenant 332 TABLE OP CONTENTS. XXXvii PAGE i 723. Trial, Tenant's Right to. — How conducted 333 724. Trial. —Matters of Proof. — Witnesses 335 725. Warrant to remove Tenant. — Effect of 338 726. Stay of Proceedings 338 727. Payment or Tender by Tenant. — Effect of 339 728. Certiorari. — Effect of, and Proceedings upon 340 728 a. Appeal from Magistrate 343 CHAPTER XV. THE TENANT'S REMEDIES. Section I. — Actions for a Wrongful or Irregular Distress. ) 729. When Tenant may have Replevin, Trespass, or Action in the Case 348 730. Unreasonable or Excessive Distress, what 349 731. Liability of Landlord how fixed 350 732. Remedy in Trespass for Distress when no Rent due . . . 351 733. Unrawful Acts of Landlord 351 734. Landlord's Rights in Special Cases 352 735. Distress for more Rent than is due. — Taking Exempted Property 352 736. Form of Action in certain Cases 353 737. IiTegularities which do not render the Distress unlawful . . 354 738. Under-tenant's Remedy in Case of Distress 354 Section II. — The Action of Replevin. \ 739. When it lies. — Statutory Provisions regarding 355 740. Execution of Writ. — Bond. — Pledges 356 741. Duties and Liabilities of the Officer as to the Bond . . . 357 ^42. Practice in Actions on the Bond 358 743. Plaintiff bound to due Diligence in Prosecution 358 744. Death of Plaintiff, Effect of on the Action 359 745. Liability of Plaintiff's Sureties 360 746. Duties of the Officer 361 747. Claim of Property by Defendants or Another. -^ Practice . 361 748. What Property subject to Replevin 362 749. Plaintiff's Right to Goods, in order to Maintain .... 363 750. Cases in which the Action lies 364 751. Venue of the Action 365 752. Form of Declaring ; . . 366 XXXVIU TABLE OF CONTENTS. PAGE § 753. Defendant's Pleas in 366 754. Effect of Certain Pleas. — Of the General Issue 367 755. Cognizance and Avowry 368 756. Avowry in New York 869 757. Plea of Tenant in Avowry 370 758. Place. — Abuse of Distress. — How Pleaded 372 759. Verdict in Avowry; its Eifect 373 760. Avowry by Joint Tenants and Tenants in Common. — Execu- tors. — Husband 373 761. Practice in Avowry 375 762. Judgment in Avowry 376 763. Execution in Avowry. — Service of 377 Section III. — Action of Trespass. §764. By Tenant; for what Injuries it lies 378 765. Illegal Entry a Trespass. — Between Disseisor and Party in Possession 378 766. Acts constituting Trespass 380 767. Unlawfully taking or injuring Property 380 768. Incorporeal Rights not the Subjects of 381 769. Right to Immediate and Exclusive Possession essential to maintain 382 770. Action lies for Severance of Fixtures, when 383 771. For Felling and Carrying away Trees, when 384 772. For Injury to Realty, Persons in Actual Possession may main- tain. — Examples 385 773. To maintain, Constructive Possession sufficient in the United States 386 774. Against Intruders on Laud. — Against Landlord .... 387 775. License to Owner to enter. — When implied 387 776. Abuse by Landlord of lawful Authority. — Wrongful Distress 389 777. Trespass concurrent remedy with Trover, when 390 778. For a continuing Nuisance 391 779. Case and Trespass, when each lies 391 780. Case lies for Consequential Injuries 392 781. Abuse of Distress. — Excessive Distress 392 782. Principle to determine Form of Action to be brought . . . 393 783. Case for Damages, when it lies 394 784. Case for Injury for Incorporeal Rights 394 785. Action Personal. — Statutory Exception in New York . . 395 TABLE OP CONTENTS. XXXix CHAPTER XVI. OF FORCIBLE ENTHY AND DETAINEE. FAGB i 786. History of the Action 396 787. Acts to Constitute Forcible Entry and Detainer .... 398 788. Entry by force, when justified 400 789. Who may maintain the Action 401 790. Allegations necessary in order to Maintain 403 791. Form of Proceeding 405 792. Title, how far in Issue. — Possession Essential 407 793. Judgment for Restitution 409 794. Indictment for, when supported 410 APPENDIX 413 INDEX 621 INDEX TO CASES CITED. [the BEFEBEyCGS ASB TO THE SECTIONS. — THE FIBST VOLUME COMFBISES §§ 1-424 b.] Abbot V. Allen 670, 674, 676 V. Bayley 105 Abbott V. Cromartie 705 Abby V. Goodrich 445 Abby H. Assoc, v. WiUard 522 Abeel v. Hubbell 64 V. RadclifE 333, 535, 640 Abercrombie v. Farkhurst 751 Abraham v. Hall 424 a Abrahams v. Tappe 455 Abrams v. Sheehan 124 V. Wilson 305, 374 Abaolon v. Knight 757 Acad, of Music v. Haokett 380, 882, 493 Ace. D. Ins. Co. v. Mackenzie 707 Acker v. Ledyard 165 V. Witherell 429, 450, 577, 594 Ackerman v. Lyman 19, 22, 636 V. Shelp 243 Ackland v. Lutley 78, 465, 477, 512 Ackroyd v. Smith 213 Acton V. Blundell 200, 2-30 V. Symon 635 Adams v. Adams 632 V. Beach 201 V, Bigelow 121 V. Brereton 353 V. Curwen 439 V. Becker 22 V. Essex 671 V. Freeman 765 V. Gibney 252, 256 V. Goddard 111 V. Grane 589 V. Hagger 37 V. Hall 186 V. La Comb 559, 577 V. McKesson 24, 62, 5.36 V. Michael 209 V. Pease 221, 229 V. "Van Alstyne 318 Adams Exp. Co. v. McDonald 22 Addleman v. Way 773 Aden v. Thayer 710 Adm'rofLeeu. Ware 100 Adriance v. Hafkemeyer 525 Agard v. King 82 Agate V. Gignoux 28 V. Lowenbein 344, 355, 361 Ages V. Mayer 424 u Agnew V. Whitney 644 Aiken v. Alb. V. & C. B. E. 246, 259 V. Appleby 79 V. Benedict 200 V. Smith 24 Ainsworth v. Bitt 520 Aitkenhead v. Blades 613, 767, 776 Albany Ins. Co. «. Bay 103, 105 Albin V. Lord 104 V. Kiegel 636 Albright v. Pickle 760 Alchorne v. Gomme 515, 705 Alcorn v. Morgan 26, 471 Alcott V. Eraser 781 Aldenbergh v. People 510, 573 Alderman v. Neate 41, 42 Alderson v. Miller 707 Aldred's Case 200, 203, 204, 239 Aldrich v. Howard 201 Aldridge v. Burlison 104 V. Great West. E. E. 197 V. Harper 745 V. Howard 201, 691 V. Stuyvesant 173 Aldrife v. Eibeyre 121 Alexander v. Alexander 138 V. Dorsey 520 V. Dyer 617 V. Hodges 298, 497 V. Jameson 166 V. Mann 278 V. Tolleston Club 214 V. Westcott 718 Alford V. Vickery 479 Alger V. Kennedy 175 a, 381 Allan V. Bower 33 AUason v. Stark 705 Allegaert v. Smart 381 Alleghany Oil Co. v. Bradford Oil Co. 492 xlii INDEX TO CASES CITED. Allen V. Agnew 559 V. Bartlett 525 V. Bates 164 p. Bennet 35,36 V. Brown . Ill, 298, 518 V. Bryan 440, 616, 621 V. Chatfield 705 V. Craig 767 V. Crary 750 V. Crofool; 613, 776 V. Culver 263, 331, 360, 437, 441 V. Hill 25 V. Hooper 104 V. Jaquish 34, 468, 513 V. Kennedy 551 0. Mansfield 237 a V. Paul 472, 522 V. Pell 379, 630 V. Smith 175, 7'JO, 792 f. Taylor 418, 419 V. Tliayer 773 V. Wooley 261 Allison V. Thompson 524 Allsop V. Wheateroft 418 Almy V. Greene 521 Alsopp V. Fatten 33 Alston V. Grant 175 a V. Wilson 424 a Altschul V. Polaok 699 Althorf V. Wolfe 178, 192 Alwood V. Mansfield 557, 580 V. BuL'kman 24 Ambler v. Skinner 66 Amenia v. Stanford 341 Ames V. Foster 104 Amfield v. White 398 Amory v. Hamilton 138 V. Kanoffsky 507, 508, 514 V. Melvin 399 Ancaster v. Milling 775 Anderson v. Critcher 171 V. Darby 135 V. Dickie 173, 178 V. Harold 35 V. Knox 319 V. Lemon 114, 336 V. Martindale 264, 664 I'. McLeod 468 V. Midland E. R. 19 V. Nesmith 773 V. Oppenheimer 22(3 V. Prindle 20, 57, 60, 61, 475, 728 V. Smith 707, 708 Andrae v. Heinritz 717 Andrew v. Hancock 396 Andrew's Case 305 Andrews v. Dixon 598, 780 V. Hales 179 V. Need ham 366, 520 V. Paradise 314, 315 V. Pearce 261, 708 V. Woodcock 177 Angus V. Eadin 184 Anon. 690 Anthony v. Haney 191, 548 Antoni v. Belknap 76, 188, 545, 546, 651, 552 Applegate v. Applegate 792 Appleton V. Campbell 621, 644 Arbuckle v. Biederman 382 I'. Nelous 558 Archdeacon v. Jennor 352 Archer v. Dudley 744 ■;. Hale 745 V. Marsh 417, 675 Arden v. Pullen 360, 372 Ardesco Oil Co. v. N. A. Oil Co. 374 V. Kichardson 358 Ards V. Watkin 16, 440 Argent v. Durrant 631 Arms V. Burt 74 Armstrong v. Bicknell 537 V. Cummings 17 V. Gilchrist 656, 658 V. Ross 106 V. Schermerhorn 189 V. Wheeler 428, 449, 452 Amitt V. Garnett 603, 780 Arnold v. Clark 175 a, 330 V. Foot 224 V. Hickman 100 V. Mundy 222, 229 V. Kash 466 V. Patrick 169 d. Stevens 86, 239, 240 V. United States 79, 282 V. Woodward 705 Arnot V. Alexander 339 Arnsby v. Woodward 109, 273, 412, 492, 499 Arrison v. Harmstad 165 Arundel v. McCuUoch 209 a Ashley v. Warner 76, 471 Ashmead v. Ranger 771 Aslin V. Parkin 711 Assay v. Sparr 579 a Association v. Cochran 424 a Astley V. Weldon 671 Aston V. Aston 32 Astor V. Hoyt 455 0. L'Amoreux 449, 451, 453, 456 V. Lent 450 V. Miller 262, 398, 443 V. Turner 123 Atkins V. Boardman 213, 216, 237, 239 V. Boylst. I. Co. 78 17. Chilson 239, 361, 495 V. Sleeper 78, 79, 477 V. TJton 324 V. Womeldorf 24 Atkyns v. Byrnes 565 Atlantic Dock Co. v. Leavitt 245 Atlantic N. Bk. v. Demmon 332 AttersoU v. Stevens 178, 344, 443, 688, 689 Atty V. Parish 624 Att'y-Gen. v. Backhouse 132 V. Brooke 132 INDEX TO CASES CITED. xliii Att'y-Gen. v. Cross 132 Badlam v. Tucker 743, 744 V. East Ind. Co. 132 Bagley i'. Freeman 450, 456 V. Foord 132 Bagsbawe i'. Goward (508 V. FuUerton 179 Bailey v. Delaplaine 507, 612 V. Griffith 132 0. Kiibura 629 V. Uotliam 132 u. Mayor 226 V. Owen 131 132 V. Ogden 36 V. Sitwell 49 u. Welles 436, 509 V. Utica Ins. Co. 209 V. White 160 V. Warren 132 V. Wright 565 Auchmuty v. Ham 186 BailifE of Ipswich v. Martin 385 Auer V. Penn 509 615 Baily v. De Crespigny 361, 408 Aughinbaugh v. CoppenhefEer 344 Aull Sav. Bk. v. AuU 636 Auriol V. Mills 435, 436, 438, 454, 456, 616, 620, 652, 682 Austin V. Ahearne 87, 114, 115, 121, 442 .». Cambridgeport 293 t>. Harris 405 f. Huds. Eiv. R. K. 173, 178 V. Huntsville, &c. Co. 16 V. Sawyer 769 V. Thomson 58, 429 V. Whitlock 166 Auworth V. Johnson 343 Aveline v. Whisson 259 Averill v. Taylor 14, 39, 41, 124 Arery v. Cheslyn 550 V. MaxweU 183, 186 V. Pixley 77 Axford V. Perrett 743 V. Prior 192 Aycock V. Railroad 173 Aycrigg v. Erie E. R. 199 Ayer v. Hawkes 25 V. Wilson ' 668 Aylesford's (Earl of) Case 32 Aylet V. Williams 384 Ayres v. Draper 483 V. Harness 149 B. Babcock i>. Albee 485 V. Kennedy 121, 122 V. Lamb 766 V. Seovill 450 Baber v. Harris 738 Bach V. Meats 612 Eacheloure v. Gage 436 Back V. Stacey 206 Backhouse v. Bonomi 235 Bacon v. Bowdoin 26,38 V. Brown 19, 22, 176, 515, 525 V. Gyrling 157 V. Parker 636 V. Taylor 135 V. W. Furn. Co. 493 V. West 497 Badeau v. Tylee 657 Badeley v. Vigurs 365 Badger v. Phinney 739 Badkin v. Powell 606 Bairi V. Clark 534, 536, 563, 565, 755 Bakeman v. Pooler 393 Baker v. Adams 497 V. Barney 106 V. Boston 237 V. Bulstrode 325 V. Dumbolton 775 V. Fales 739, 749 V. Garratt 740 V. Gostling 16, 426, 459, 639 V. GreenhiU 396 V. Hayes 787, 790 V. HoltzapSel 645 V. Roe 699 V. Seekright 163 Baldwin v. Munn 317 .,. Walker 121, 440, 442 Ball V. Chadwick 708, 720, 728 a V. Cullimore 25, 62, 466, 702, 773 V. Dunsterville 141, 166 V. Golding 161 V. Herbert 215, 229 V. Nye 192 V. Taylor 166 V. Wyeth 362 Ballacoskish Silr. Co. v. Dumbell 230 Ballard w. Butler 383 V. Dyson 216 Ballentine v. Poyner 353 Balling v. Stokes 397 Balls V. Westwood 708 Bally V. Wells 261, 413, 437, 443, 460 Balmain v. Shore 114 Bait. R. R. Co. V. State 199 Bancroft v. Wardwell 636 Bandy ». Cartwright 254 Bangs V. Lowber 265 Bank of America v. Banks 104 Bank of ColumUia v. Hagner 276 V. Paterson 127 Bank of Hamilton v. Dudley 133 Bank of Penn. v. Wise 389, 435, 447 Bank of Rochester v. Gray 166 Bank of St. Louis v. Rice 155 Bank of U. S. v. Dandridge 127, 129 Bank of Utica v. Mersereau 705 Bank of Washington v. Hupp 121, 123 Banks v. Am. Tr. Soc. 239 .,. Angell 756 V. Haskie 334 V. Murray 790 V. Bebbeck 25 xliv INDEX TO CASES CITED. Bannon v. Mitchell Banorgee v. Hovey Bantleon v. Smith Barber v. Fox V. Rose Barclay v. Pickles 0. Steamb. Co. V. Wain Wright Bard v. N. Y. & H. K. R. Barfoot v. Freswell Barhydt v. Burgess Barker v. Barker V. Clark V. Dacie Barker v. Fletwel V. Hodgson V. Eeate V. McCoy V. Richardson V. Thorold Barlow v. Burns V. Scott V. Wainwright Barnard v. Darling V. Duthy V. Leigh V. Martin V. Michael V. Poor Barnard's Case Barnes v. Hathorn V. Kavensworlh V. Sabron V. Strohecker Barnett v. Feary Barney v. Cane V. Keith Barnfather v. Jordan Barnuin v. Eeeler V. Vandusen Barrell v. Barrell Barret v. Blagrave Barrett v. Buxton V. Crutcher V. Forrester V. French V. Porter Barrington v. Justices Barrow v. Richards 173, Barry v. Barry V. Nugent V. Ryan V. Stanton Bartlett v. Downes V, Farrington V. Greenleaf V. Hitchcock V. Pentland Barton v. Beer c. Fitzgerald V. Port Jackson Co. Barwick v. Foster V. Thompson Bascom v. Smith Co. 178 137 565, 581 462 374, 631 519 262, 332 247, 415 175, 193 246, 249 436 174, 178 216 658 519 428 261 227 855 790 160, 246 66 681 679 435 160 673 196 697 201 158 224 331 332 793 39, 252, 676 449, 452 728 a 185 115 673, 685 100 676 761 99 319 541 201, 209, 418 695 41 724 408 508 874, 880 276, 471 120, 121 540 104 249 267 390 705 , 604 Basford v. Pearson 149 Bassett v. Dean 375 Bastin v. Bidwell 389 Batchelder v. Batchelder 61, 482 Baten's Case 205, 208, 518 Bates V. Boston & N. Y. K. R. 166 V. Nellis 565 V. Phinney 636 V. Shraeder 688 Bath & Montague's Case 150 Bath, Bishop of, Case of 75, 76, 151 Batman v. Megowan 79 Batten u. Earnly 660 Batterman v. Pierce 874, 631 Batty V. Caswell 138 Baugher v. Wilkins 804, 306 Baxter v. Brown 38, 39, 41 V. Bush 423 V. Lansing 489, 495, 496 V. Portsmouth 97 V. Ryerss 257 V. Taylor 173 Bay State Bank v. Kiley 477 Bayley v. Bradley 64,642 V. Lawrence 372 Baylis v. LeGross 497 Bayliss v. Fisher 731 Bayly v. Tyrrell 48 Baynes v, Chastain 183 Baynham v. Guy's Hosp. 333, 339 Baynton v. Bobbett 377 Beach v. Grain 357, 358, 364 V. Gray 641 V. Nixon 273, 492, 719, 720 V. Stearns 250 Beal V. Boston Car Spring Co. 518 V. Saunders 363 Beale v. Thompson 875 Bealey v. Shaw 224, 228 Beall V. White 517 Beals V. Prov. R. R. 397 Bean v. Edge 18 u. Mayo 320 Bear v. Whistler 298 Beardman v. Wilson 16 Beardslee v. French 191 V. Knight 166 Beardsley v. Sherman 545 Beasley v. Davey 495 Beatty v. Marine Ins. Co. 128 Beaty v. Gibbons 542, 654 Beaufort v. Berty 133 Beavan v. Delahay 543 V. M'Donnell 97 Becar v. Flues 16, 80, 176 Beck V. Birdsall 28 V. Dyson 195 V. Phillips 427 V. Rebow 644, 547 Becker v. Forrest 176 V. Werner 493 Beckford o. Montague 603 Beckwith v. Howard 147 V. Shordike 184 INDEX TO CASES CITED. xlr Beddoe v. Wadsworth 261, 309 Bedell v. Constable 133 Bedford v. McElherron 465, 468 V. Terhune 429, 450, 517 Bedingfield v. Onslow 173, 178, 200 Beebe B. Coleman 441 Beeler v. Cardwell 789 Beely v. Parry 447, 665 Beers v. St. John 546, 551 Bees V. Williams 516 Belirman v. Barts 276 Beidelman v. Foulk 32 Beissel v. ShoU 225 Belbee ». Belbee 627 Belcher v. Belcher 100 V. Grimsley ' 424 a V. Mcintosh 359 Belden v. Carter 167, 168 V. Seymour 163 Belfour v. Weston 329, 331, 372, 873 Belk V. Broadbent 782 Belknap v. Belknap 224 V. Trimble 224, 227, 228 Bell V. Hnrst 424 a V. Norris 729 V. Potter 572 ti. Twentyman 769 V. Wright 502 Bellasis v. Burbriche 15, 176, 624, 670 Beller v. Robinson 332 Bellingham v. Alsop 86 Bellows V. Sackett 175, 200, 209 a Bemis i'. I^eonard 78, 79 V. Upham 227 V. Wilder 403, 408, 492 Bemus v. Beekman 759 Bender v. Fromberger 317, 676 V. George 109, 424 a Benedict v. Beebee 28 V. Field 394 f. Morse 629 Benfrey v. Congdon 63, 64 Benjamin v. Benjamin 21, 720, 724, 728 791 V. Henry 728 Bennet, Ex'parte 602 V. Bittle 161, 309, 378 V. Irwin 667 V. Montgomery 787, 789 ». Nichols 78 V. Reeve 219 V. Robins 570 Bennet's Case 325 Bennett v. Am. Art Union 489 V. Ireland 60, 525 V. Scutt 196 ». Vansyckel 382 V. Waller 262 V. Warren 739 t>.-Womack 45,869,898 Bensel v. Gray 252, 431 Benson w. Bald wyn, 656,657 V. Bolles 19 V. Boteler 25 Benson b. Dean 267 B. Suarez 175 Benzein v. Robinet 391 Bergman b. Roberts 707, 708, 728 a Berkely b. Hardy 139, 258, 664 Berks Co. v. Meyers 126 Bernal v, Hovious 24 Berne b. Mattaire 749, 752 Berriman v. Peacock 350, 771 Berry v. Carle 221, 229 V. Heard 173, 200 V. Lindley 56, 80, 471 ■V. Van Winkle 335 V. Williams 787 Bertie u. Beaumont 769, 773 Bertram v. Cook 705, 706 Bessell v. Landsberg 475 Best V. Brett 249 V. Stow 49 Bettison v. Budd 708 Bettisworth's Case 161 Betts B. June 114, 117 V. Lee 191 V. Perrine 265 Bevans b. Briscoe 534, 536, 543 Beverley b. Lincoln Gas. L. Co. 635, 655 Beverley's Case 97, 100 Bewick v. Whitfield 173, 854 Beyer v. Fenstermacher 573 Bickford v. Page 263, 445, 667 V. Parson 440 Biddle v. Biddle 558, 599 V. Hussman 385, 519 V. Reed 328 Biery v. Zeigler 105 Bigelow V. CoUamore 364 B. Judson 580 B. Willson 78 Biggs B. Brown 536 Billings V. Tucker 17, 18 Bindover v. Sindercombe 704 Bingham v. Weiderwax 263, 322 Binney v. Chapman 89, 654, 705, 708 B. Foss 705 V. Hull 186 a Birch V. Birch 694 V. Stevenson 163 ... Wright 82, 112, 442, 485, 637, 639, 653, 710 Bircher b. Parker 552 Birckhead b. Cummings 15, 80, 68, 176, 624 Bird V. Caritat 653 V. Higginson 34, 638 V. Holbrook 194 a , B. Randall 671 Birdsall b. Phillips 720 Birney b. Hann 263, 667 Bishop V. Banks 201 V. Bedford Ch. 175 V. Doty 24, 26 B. Howard 525, 642 Bis?ell V. Lloyd 327 Bitner b. Brough 317 xlvi INDEX TO CASES CITED. Bizzell V. Baker 198 Black V. Del. & Rar. Canal Co. 17 V. Hepburne 699 V. Smith 393 Blackett v. Lowes 771, 768, 782, 783 V. Royal Ex. Co. 538 Blackball v. Combs 659 Blackman v. Simmons 195 Blackmore v. Boardraan 818 a, 334 Blades v. Higgs 631 Blair v. Claxton 377, 378 V. Peck 273 V. Rankin 252 Blake v. Baker 398 V. Coats 24 V. Crowninsliield 78, 79 V. Deliesseline 581 «. Ferris 175, 192 V. Foster 91, 130, 628, 708 V. Jerome 174, 765 V. Sanderson 403, 405, 437 Blanohard i'. Baker 228 V. Bridges 240 f . McDougal 25 V. Raines 424 a V. Tyler 705 Blaney v. Bearce 118, 121 Blantin v. Whitaker 708 Blatchford v. Cole 72 Bleecker v. Ballou 898 V. Bingham 258 V. Smith 286, 411, 497, 499, 500 Blight V. Page 267 Blish V. Harlow 477, 483, 484, 485 BUss V. Collins 385 V. Gardner 620 V. Hall 205, 208 V. Mclntire 165 II. Whitney 545 Block V. Ebner 830, 361, 374, 500 Blood V. Goodrich 137 V. Humplirey 104 Bloom V. Goodner 793 Bloomer v. Juhel 754, 757 V. Merrill 375 M. Waldron 53 Bluok V. Gompertz 36 Blume V. McClurken 640 Blumenberg v. Myres 16, 22, 57 Blundell v. Catterall 222 Blunt V. Bates 170 V. McCormick 315 Blyth V. Dennett 485, 492 V. Smith 368 V. Topham 186 Boardman v. Merc. M. F. I. Co. 521 V. Mostyn 33, 44 Bogardus v. Trinity Church 86 Bogart V. Debussy 138 Boggs V. Black 486, 497 I'. Price 424 a Bohannons v. Lewis 141, 166, 364, 373 Bokee i'. Hamersly 728 BoUenbacker v. Fritts 686 BoUes V. Mayor 724 Boiling V. Mayor 243 Bolting V. Martin 427 Bolton V. Carlisle 165 V. Landers 622 Bonne tt v. Sadler 848, 691 Bool V. Mix 93, 94, 103 Boom V. Utica 204 Boone v. Eyre 276 V. Storer 237 a, 261 Boot V. Wilson 652 Booth V. McFarlane 529 V. Starr 808 Boraston v. Green 538, 542 Borcherling v. Katz 189, 657 Bord V. Cudmore 625 Borden v. Borden 269 V. Sackett 718, 728 a Bordman v. Osborn 616 Boreel v. Law ton 806, 380 Borland v. Box 629 Boroughe's Case 493 Boston V. Binney 636 V. Bobbins 181 Boston Bank v. Reed 124 Boston & W. R. R v. Ripley 881 Bostwick V. Frankfield 602 Bosworth V. Thomas 328 Boteler v. Espen 416 Botheroyd v. Woolley 68 Boudette v. Pierce 19 Boucliier v. Edmondson 424 a Bould V. Wynston 86 Bourdillon v. Dalton 456 Bourke v. Rothwell 86 Bowen v. Hodges 262 V. Jenkins 220 Bower v. Hill 173, 204 Bowers v. Cator 32 V. Nixon 673 Bowe's Case 62 Bowe V. Hunkin 176 o Bowes, in re 120 Bowes V. E. Lond. Waterworks 112 Bowles V. Lyon 525 V. Poore 570 Bowles' Case 355, 770 Bowman v. Foot 492, 498, 497, 728 a Bowser v. Lloyd 745 Bowyer v. Seymour 272, 297 Boyd V. Frat. Hall Ass'n. 405 Boyland v. Warner 137 Boyle V. Boyle 720 V. Peabody Heights Co. 246 Bracebridge v. Buckley 495 Bracket v. Alvord 625 Bradbee t7. Christ's Hosp. 189, 190, 783 Bradbury v. Wright 660, 757 Bradfield v. McCormick 166 Bradish i-. Schenck 24 Bradley v. Covel 55, 68, 60, 475 V. Davenport . 651 V. Gill 783 V. Goicouria 876 INDEX TO CASES CITED. xlvii Bradley «. Osterhoudt 676 Bronson v. Rhodes V. Pigott 682 Brook V. Biggs V. Root 428 0. Bulkeley Bradstreet v. Clarke 86,289 V. Hewitt Brady v. Waldron 694 V. Noakes V. "Weeks 201, 208 Brooker v. Jones Bradyll v. Ball 744 Brookes v. Humphreys Brahn v. Jersey City F. Co. 137, 480, Brookhaven v. Strong 721a Brooklyn Bank v. DeGrauw Brailsford v. Parsons 248, 683 Brooks V. Brooks Braithwaite v. Cooksey 681 V. Purtis Braman i>. Bingham 169 V. Drysdale Branch v. Doane 26 V. Ga ster Brand v. Schenect. & T. R. R. 198 ». Tyler Brandling v. Kent 606 V. Wilcox Brandter v. Marshall ^ 705 Broom v. Hore Branscomb v. Bridges 729, 731, 776, Broughton v. Conway 780 Brouwer v. Jones Branwell v. Penneck 782 Brower v. Fisher Braythwayte v. Hitchcook 23, 55, 59, Brown v. Austen 429 V. Best Breckenridge's Heirs v. Orrasby 95 V. Betts Brecknock Canal Co. v. Pritchard 360 V. Blunden Breeding v. Taylor 442 V. Brackett Breese v. Bange 604, 508 V. Bragg b. McCann 374 V. Brown Brenekman v. Tvpibill 607 V. Butler Brennan v. Egan 653 V. Caldwell Brent v. Haddon 211 V. Cayuga R. R. Brereton v. Evans 87 V. Crump 343, 344, Brett V. Cumberland 436, 438, 662 J). Dawson V. Read 635 a. Dean Brewer v. Dyer 165, 258, 427 V. Dickerson V. Eaton 499 V. Duncan V. Harris 77 V. Dunn V. Keeler 705 V. Dysinger V. Knapp 424 6 r. Fay V. Stevens 16 V. Ferguson V. Thorp 424 6 V. Galloway Brewster v. Defremery 175 a, 328 V. Illius V. Kidgell 261, 342 V. Jaquette Brick Presb. Ch. v. Maj- or 267 V. Jarvis Bridge Prop's v. New Jersey 26 V. Johnson Bridger v. Pierson 158 V. Kayser Bridges v. Potts 477 V. Keller Bridgham v. Tileston 427 V. Kendall Briggs V. Brown 638 V. Kennedy V. Hale 378 V. Kite V. Lowry 466 V. Lincoln V. Oakes 423, 622 V. Lindsay V. Vanderbilt 246 V. Maxwell Brigham v. Shattuck 276, 293 V. Mayor Bright V. McOuat 56, 57, 59 ti. McCormack Brill V. Flagler 205 V. McGehee Bristol, Dean of, v. Guyse 461 V. McGowan V. Jones 276 V. McKie Bristow V. Wright 626, 670 D.N. Y. C.K.R. Broadwell v. Getman 44 V. O'Dea Brock V. Berry 532 V. Parsons Brockway v. Allen 580 V. Perkins V. Thomas 28 V. Powell Brolasky v. Ferguson 636 V. Quilter 809, Bronk v. Becker 185, 187 V. Sayce Bronson i>. Coffin 261, 318 V. Shevill 894 707 832 47 612 424 a 675 228 393 136 189 489 536, 651 704 559 885, 438 255 212, 416 98 167 227 720, 723 357 786 489 98 111 93, 749 207 , 356, 641 772 757, 759 808 574 578 707 602 391 712 203 24 603 370 625 622 197 229 291, 714 24 102 199 717 87 424 a 66 262 39 153 25, 332 201, 766 566 , 829, 375 757 589 xlviii INDEX TO CASES CITED. Blown V. Sims 583, 687, 588 V. Smith 64,65 V. Stebbins 674 V. Tighe 334 V. Trumper 81 0. Vandergrift 289 V. Wallis 545 V. Werner 108, 235 V. Windsor 2.32 V. Woodworth 175, 209 Brown's App. 728 Browne v. Kennedy 221 V. Seofield 229 r. Warner 38 Brownell v. Flagler 199 V. Haskell 168 V. Welch 467 Browning v. Dalesme 179 a, 784 V. Honey wood 252 o. Wright 160, 246, 249 Bruce v. Fulton N. Bk. 832 V. Learned 761 V. Ruler 517 Brndnell v. Roberta 362, 708 Bruerton v. Bainsford 176 Brugman v. Noyes 280, 418 Brumley v. Panning 694 Brummell v. Macpherson 286, 410 Brunton v. Hall 157, 216 Bryan v. Atwater 86 V. Butts 699 V. Smitli 728 a Bryant v. Cora. Ins. Co. 540 V. Kinlaw 173 V. Simpson 676 ti. Thompson 496 V. Winburn 180 Brydges w. Kilburne 692 V. Smith 565 Bubb V. Yelverton 697 Buchan v. Sumner 114 Buchanan v. King 179 a Buchegger v. Slrultz 394 Buck V. Binninger 25, 720 a, 721 a 723, 728 V. Buck 246 V. Pike 361, 421 V. Rogers 330 Buckey v. Snouffer 601 Buckland v. Butterfield 547 V. Hall , 47, 337, 371, 438 Buckley v. Buckley 544 V. Leonard 195 V. Pirk 461 V. Taylor 573 V. Williams 306 Bucklin v. Truell 224 Buckner v. Warren 513 Buckwortli V. Simpson 642 Budd V. Marshall 398 Buel V. Frazier 792 Buell V. Cook 40, 655 V. Gordon 457 Buesching v. St. Louis Gas L. Co. 175 Buffalo ti. LeCouteulx 342 Buffalo Com. Bank v. Kortright 127 Buffington v. Gerrish 739 Buffum V. Deane 386, 504 Bukup V. Valentine 572 Buland's Appeal 424 a Bulkley v. Dolbeare 350, 854 Bull V. Follett 246 V. Horlbeck 591 V. Peck 479 V. Sibbs 461, 641 Bullen t'. Denning 158 Bullis V. Giddens 628 Bullitt V. Musgrave 421, 533 Bullock V. Domraitt 343, 364, 376 V. Rogers 122 V. Wilson 698 Bulwer v. Bulwer 536 Bulwer's Case 626 Bundy v. Williams 668 Bunton v. Richardson 62 Burbank v. Dyer 133 Burchell v. Clark 146 Burden v. Thayer 442, 632 Burdett v. Withers 369,, 360 Burgle V. Davis 24 Burgner v. Humphrey 236 Burhans v. Van Zandt 179 a, 318 a Burk V. Brown 143 V. Hollis 551 Burket v. Boude 558 Burkle v. Luce 744 Burling v. Read 531 Burn i). Miller 554 V. Phelps 627, 649 Burne v. Richardson 560, 672, 707, 711 Burnes v. McCubbin 489 Burnett v. Lynch 147, 259, 666, 706 V. Scribner 25, 38, 720 a Burnham v. Hubbard 424 b V, Martin 524 V. Roberts 635, 640 Burns v. Bryant 477 V. Cooper 24, 390 V. Lynde 149 V. O'Rourke 100 V. Phelps 381 Burr V. Stenton 121, 267, 305, 519 V. Van Buskirk 574, 756, 761 Burrelt v. Bull 335 o, 336 Burridge v. New Alb. R. R. 158 Burrill v. Nahant Bank 128 Burrough v. Taylor 493 Burrowes v. Gradin 58 Burt V. French 494 Burton v. Barclay 443 V. Brown 161 f. Rhorbeck 786 Burwell v. Jackson 304 Bury V. Pope 239 Biisehman v. Wilson 520 Bush V. Bradley 773 V. Brainard 184, 186 V. Calis 262 INDEX TO CASES CITED. xlix Bush V. Cooper 87 V. Dunham 728 a Bushell V. Leclimore 627 V. Pasniore 169 Buskirk v. Cleaveland 424 a Bussman v. Ganster 41, 372 Buster v. Wallace 670 ■Bustin V. Christie 163 Buswell V. Marshall 171 Buszard v. Capel 572, 574 Butcher v. Butcher 33, 531, 774 V. Stapely 32 Butler w. Buckingham 104 V. Fessenden 78 V. Horwitz 394 V. Kidder 375 V. Many 265 V. Phelps 85,86 V. Smith 411 V. Stocking 117 Butts V. Collins 630 Buxton V. Cornish 170 Byrd v. O'Hanlin 739 Byrne v. Beeson 705 V. Van Hoesen 135 Byrom v. Johnson 662 c. 14 587 521 496 607, 009 46 707 318 a 543 500 708 690, 691 15, 705 346 Cade V. Brownlee Cadwalader v. Tindall Caffin V. Scott Cage V. Russell Cahill V. Lee Cain V. Coombs V. Simon Cairns v. Chabert Caldecott v. Smythiea Calderwood v. Brooks V. Peyser Caldwall v. Baylis Caldwell v. Center V. Enkas Calhoun v. Atchison Cal. Dry Dock Co. v. Armstrong Call V. Barker Callaghan v, Hawkes Callan v. McDaniel Callendar v. Marsh Calvert v. Aldrich V. Bradley V. Jolifie Calvin's Case Camarillo v. Folsom Camden v. Batterbury Cameron v. Little V. McDonald Camley v. Stanfleld Cammeyer v. United Germ. Luth. Ch. 35 Camp V. Camp 167, 708 V. McCormick 602 V. Pulver 497 VOL. I. — d 653 178 163 246 262 233 179 a 455 603, 604 143 308, 707, 708 636 389 722 o 708 Camp V. Scott 260, 497 Campan v. Lafferty 35 Campau v. Shaw 135 Campbell v. Campbell 115, 705 V. Fetterman 705 V. Hampton 705 V. Hatehett 391 0. Johnson 160 V. Leach 138 V. Lewis 262, 307, 439, 445 V. Mallory 719, 721 a V. McElevy 457 V. Mesier 189 V. Renwick 636 V. Slieppey 522, 702, 705 V. Shields 377 V. Smith 227 Campion v. Crawshay 662 Canal Co. v. Railroad Co. 288 Cane v. Chapman 779 Canfield v. Ford 161 Canham v. Fisk 217 11. Rust 666 Cannavan v. Conkling 175 Cannock v. Jones 276 Cannon v. Gibbs 424 6 Capenhurst v. Capenhurst 266, 267 Capers v. Wilson 214 Capet V. Parker 724 Cardigan v. Armitage 158 Cardwell v. Lucas 90, 261, 665 Carey v. Bishop 541 Carhart v. Aub. Gas Co. 201, 224 V. Ryder 382 Carlisle v. MoCall 25 Carleton v. Darcy 706 Carlton v. Franc. Iron Co 192 Carnes v. Hersey 399 Carondelet v. Wolfert 495 Carpenter v. Brown 49 V. Creswell 276 0. Griffin 18 V. Snelling 170 V. Stevens 744 V. Thompson 615 Carr v. Ellison 333 Carrell v. Read 269, 289, 366 Carrig v. Dee 239 Carris v. Ingalls 686 Carroll v. Ballance 502 V. Newton 545 D. N. Y. & N. H. R. E 198 V. St. John's Society 127 Carson v. Baker 21 V. Blazer 223 V. Crigler 442, 705, 787 V. Godley 175, 254 Carstairs v. Taylor 175 a Carter v. Barnardiston 83 V. Boehm 32 V. Burr 304, 377, 378 V. Carter 341, 395, 630, 681 V. Du Pre 424 a V. Hammett 428, 444, 449, 453, 461 INDEX TO CASES CITED. Carter v. Harlan 237 a V. Lee 705 V. Marshall 707 V. Murcot 222 V. Newbold 791 V. Page 766 V. Rockett 329 V. Warne 456, 458 Cartwrlght v. Amatt 246 V. Gardner 492 V. Maplesden 238 Carver v. Palmer 429 Carvick v. Blagrave 91, 92, 261, 708 Gary v. Thompson 163 V. Whiting 376 Casad v. Hughes 328 Casborne v. Scarfe 318 a Case V. Degoes 765 V. Hart 533. !;. Thompson 184 a Casey v. Buttolph 603 V. Woodruff 447 CasslUy v. Rhodes 536 Castle V. Burditt 78, 79 Caswell V. Districh 24, 26, 154 V. Ward 728 a V. Wendell 317 Cate V. Schaum 578, 613 Catesby's Case 77 Catlin V. Barnard 264 V. Hayden 173 V. Valentine 201, 209 V. Wright 489 ' Catteris v, Cowper- 772 Cattley v. Arnold 55, 58 Caufman v. Cong. Ced. Spring 705, 708 Caulk V. Everly 44 Cavis V. McClary 121 Cayley v. O'NeiU 135 Cecil V. Harris 681 Center v. Finney 199 Centre v. Davis 175 a Cesar v. Kountz 382 Chadwick v. Trower 783 V. Woodward 328, 330 Chalker v. Chalker 288, 492 Challenor v. Thomas 699, 704 Challoner v. Davies 507, 510 Chamberlain v. Perry 707 Chamberlayn's Case 608 Chamberlayne v. Dummer 697 Chamberlin, Ex parte 739 V. Barnes 267 u. Brown 720 V. Donohue 25, 60, 62, 636 Chambers v. Matthews 184 . Fitzgerald 265 V. Kittle 540 V. Linton 342, 395 V. Williams 656 Day V. Brown 245 V. Caton 189 V. Day 209 a V. Essex Bank 265 V. Flynn 163 . Dorr 398 Despard v. Walbridge 56, 455, 525, 705 Desp. Line v. Bellamy M. ¥. Co. 544 Detroit Sav. Bk. v. Bellamy 477 Detwiler v. Cox 561, 562 Detwiler's Appeal 456 Deuel V. Rust 721 a, 721 6 Ivi INDEX TO CASES CITED. Deutseh v. Abeles 175 Devereux v. Barlow 616, 620 Devore v. Sunderland 261, 263 Dewey v. Osborn 187, 710, 712, 773 Dewitt V. Harvey 114 De Witt V. Pierson 316, 374, 381 De Wolfu. Martin Dexter v. Hazen V. Manley Deyo V. Bleakley De Young v. Buchanan Diamond v. Harris Dickey v. McCuUough Dickinson v. Goodspeed f. Hoomes V. Shee Dickson v. Desire Digby V. Atkinson Dikes, Ex parte Diller v. Roberts Dillingham v. Jenkins Dillon V. Brown Dimmett v. Eskridge Dimmick v. Lockwood Dimmock v. Daly Dimock v. Van Bergen Dimond v. Enoch Dinehart v. Wilson Dingley v. Buffum Dingman v. Kelly Dircks v. Brant Disdale v. Hes Ditchett V. S. D. R. E. Dix V. Atkins Dixon V. Bates V. Clow V. Haley V. Harrison V. Niccolls Doak r. Donelson Doan V. Fallon Doane v. Badger Dobbins v. Duquid Dobell V. Hutchinson Dobson V. Culpepper V. Jones Dockham v. Parker Dod V. Monger Dodd V. Acklom V. Holme 705 237 317 69, 391 64, 525 372 410 178, 774 261 393 263 19, 357, 362, 364, 366, 401, 467, 525 136 Dodge V. Burdell V. Lambert Dods V. Wilson Doe V. Abel V. Adams V. Alexander V. Allen V. Amey V. Archer V. Ashbumer V. Bancks V. Barton 673 14 114, 117 201a 223 309" 524 708 21 551, 552 70, 160 534 466 175 60 179 174, 212 64 101 24, 390, 391, 426 62 399 179 a, 214 a 377 35 708 66 174 578, 776 515 173, 200, 231, 232, 235, 783 424 6 416, 418 98 246, 424 125, 293, 703 298, 702 419, 498, 500 343, 423, 525 112, 483 40, 159 23, 492 120, 707, 708 Doe V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. '. Baston Bateman Batten Baytup Bell Benjamin Benson Be van Biggs Bingham Birch Bird Bliss Bond Boulter Boulton Brawn Breach Brindley Brown Browne Bucknell Burt Butclier Butler Butt Byron Cadwallader Calvert 23 16, 109, 294 485, 497, 528, 623, 710 705 56 39, 41, 42 69, 483 406, 408 20, 467 165 273, 415, 492, 497, 498 174, 359, 417, 418 286, 411, 501 489, 490 442, 671 471 435 291 497, 498 15, 23, 85, 508, 707 19, 34, 55, 468, 469 120 163, 248 84, 112 476 21 109 703 485 Carter 281, 284, 403, 408, 414 Cartwright 21 Chamberlaine 25 Chaplin Clarke Cock Cooke Cox Crago Craig Creed Crick Crouch CuUiford Davis Day Dixon Donovan Donston Dunbar Dupey Dyson Edgar Edwards Ekins Elsam Evans Plynn Forster Foster Francis Franks Frowd Fuchau Giles 479 409, 414 715 512 57, 483 23, 55, 59 699 472 482 356 483 361 15 81 477 435 484 712 301, 494 25, 702 75, 708 415 291 522 522 69, 467 479 23 494 472, 522 299, 494, 708 65, 120 INDEX TO CASES CITED. Ivii Doe w. Gladwin 401, 500 V. Godwin 489 0. Goldsraitli 293 V. Goldwin 480, 483 V. Gooch 163 V. Gower 522 V. Grafton 477 V. Green 82 V. Groves 39, 41 V. Grubb 472, 522 ». Guy 134 V. Harlow 711 V. Hawke 409, 414 V. Hazell 57, 475 V. Hodgson 135 V. Hogg 406 V. Howard 478 V. Huddart 711 V. Hughes 479 Hull 324 Hulme 479 Humphreys 485, 486 Inglis 486 Jackson 25, 358, 363, 471, 483, 702 . JefEerson 19 . Jepson 489 . Jersey 163 . Johnson 69, 499 . Johnston 515 . Jones 291, 359, 363, 435, 500, 533 . Keeling 417 , Kendriek 23 , Kennard 276 , Rightly 483 Kneller 291 Knight 167, 169 Lambly 483 Lansing 66, 405 Lawrence 293 Lea 477 Lewis 382 Lloyd 177 Long 522 Lucas 484 Maberley 433 Mace 121 Mainby 82 Maisey 65, 120 Marchetti 489 Massey 179 Masters 297, 298, 493 Matthews 69 McKaeg 466 V. Meux 255, 362, 485, 497, 498 V. Miller 19, 25, 60, 486, 487, 498 V. Milward 481, 510, 513 V. Mizem 480 V. Moffatt 80, 471 V. Morse 113 V. Murless 481 V. Murrell 537, 705 V. Noden 20 Doe V. V. V. V. V. V. V. V. V. V. V. V. V. V. Palmer Parker Paul Payne Peck Pegge Phillips Pittraan Plowman Porter Powell Price Pritchard Pullen Pyke Quigley RaflEan Kawlins Eead Rees Reynolds Rickarby Ridout Ries Robinson Roe 301, Rogers Rollings Rowlands Samuel Sandham Sayer Scott Seaton Shawcross Shewin Skirrow Smaridge Smith 96, 407, Smythe Snowden Spence Spiller Spry Stanion Staple Steel Stennett Stevens Stratton Sturges Summersett Sutton Sybourne Timothy Thomas Thompson Turner Ulph Vernon Walters Wanrilass Ward 486 522 298, 493 411 400, 401 705 246, 291, 685 472, 522 704 58, 434, 470, 475 42, 408, 413 63, 702 410, 485, 501 21 111, 508 21, 471 57 72 480 497 522 411 55, 467 39,42 480 428, 480, 709, 715 606 522 358, 361, 368 69, 478 45, 373 63, 486 475 260 301, 701 400, 401 89 82 413, 442, 457, 483, 564 705 478 476 481 417, 418 26, 60, 466, 702 508 486 65, 702 489 80, 468, 471 133 479 361, 496 479, 508 483 511 163, 702 15,62 401, 496 616 479 297, 301, 702 497 Iviii INDEX TO CASES CITED. Doe V. Watkins 69, 478, 481, 484 V. Watt 278, 291, 412, 500, 685 V. Watts 19, 55, 60, 84, 85, 113, 475 V. Webber 703 V. Weller 56, 102 V. Wells 522 V. Wharton 703 !;. Wilkinson 23, 483, 705 V. Williams 481 V. Wilson 352 V, Witherwick. 586 V. Wombvvell 4B7 V. Wood 55, 58, 59, 346, 466, 468, 525 V. Woodbridge 500 V. Woodman 481 V. Worsley 408 V. Wrightman 481 Dogan V. Bloodworth 424 a Doidge V. Bowers 56 Pollttle V. Eddy 14, 25 DoUen v. Batt 166 DoUiver v. St. Joseph Ins. Co. 14 Dolph V. Tenis 184 V. White 260, 263, 371, 440, 441 Domiuick v. Michael 94, 95 Domvile v. Colville 490 V. Forde 422 Donahue v. Kendall 175 a, 460 Donald v. MoKinnon 705 Donaldson v. Smith 78 Donkersley v. Levy 512 Donnell v. Thompson 682 Donnelly v. Thieben 549 Donnisthorpe v. Porter 505 Doremus v. Howard 24 Dormer v. Fortescue 660 Dormer's Case 297 Dorr V. Hanrahan 418 Dorranee v. Jones 458 Dorrell v. Collins 158 V. Jolmson 524, 788 Dorrill v. Stephens 391, 525, 650 Dorsett v. Gray 115, 535 Dorsey v. Gassaway 761 V. Hays 558, 576 Dortch V. Robinson 787 Dos Santos v. HoUinshead 515 Doty V. Burdiek 522, 532 V. Gillett 509 V. Gorham 214 V. Heth 261 Dougherty v. Bunting 204, 209 V. Matthews 286 Doughty V. Devlin 174 Douglas V. Pulda 708 V. Patrick 393 Douglass V, Anderson 483, 522 V. Geiler 522 I/. Reynolds 424 b V. Wiggins 173, 348, 693 Doupfe V. Genin 175 a, 328 Douse V. Earle 366 Dow V. Adam 391 V. Rowe 494 Dowling u. Mill 338 Downing v. Jones 445 V. Luckett 66 Dowushire v. Sandys 697 Dow V. Blake 613 Dowse V. Cale 357 Dox 0. Day 276 Doyle V. Gibbs 24, 471 V. Lord 161, 204, 239 V. O'Neil 689 Dragg V. Brand 673 Drajse v. Drake 653 V. Mount 199 V. Munday 154 i: Newton 29 Drakford v. Turk 121, 424 a Draper v. Stouvenal 104, 107 Drapers' Co. v. Davis 660 Dresden v. Cox 713 Dresser v. Dresser 114 Drew V. Bayly 133 V. Power 153 Drewell v. Towler 286 Driggs V. Dwight 47, 317, 332 Drohan v. Drohan 134 Druce v. Denison 101 Drury v. Foster 149 V. Molins 422, 692 Dryden v. Kellogg 554 Dubois V. Beaver 191 V. Campau 179 a V. Kelly 31, 237 a, 251, 544, 548, 550 Du Bouchet v. Wheaton 728 a Dubuque v. Miller 60 Duck V. Braddyll 603 Dudding v. Hill 636 Dudley v. Dudley 545 V. Folliott ' 305, 315 V. Lee 717, 720, 789 V. Sumner 146 Duff t). Wilson 121, 179 a, 708 Duffield V. Elwes 277 Duffit V. Tuhan 708 Duffy V. Ogden 78, 476 Duigan v. Hogan 728 Duke 1-. Harper 522 Dulaney v. Green 100 Dunies v. McLoskey 558 Dumnier v. Birch 670 Dumont v. Kellogg 224 Dumper v. Syms 408 Dumpor's Case 286, 294, 296, 403, 410 Dunbar v. Jumper 261, 437 Duncan v. Hodges 146 V. Lyon 630 V. Meikleham 580 V. Thwaites 201, 204 Duncomb w. Reeve 608 Dungey v. Angove 640, 657 Dunham v. Jackson 393 V. Townsend 25 INDEX TO CASES CITED. lix Dunham v. Wyokoff 749 Dunk V. Hunter 40, 42, 561, 563, 767 Dunklee v. Koper 308 Dunlap o. BuUard 426 Dunn V. Bagby 335 a V. Barton 261 . Halligan 78, 525 Helburn v. Mofford 372 V. Turner 707, 708 Hellawell v. Eastwood 544 V. Whitney 424 Hellier v. Casbard 252, 626, 626 V. Woodward , 6<.m Helm V. Slader 720 Higgon V. Mortimer 541 Helwig V Jordan 175 Hilbourn v. Fogg 61, 466, 532, 708, Heming v. Erauss 735 728 a, 774 Hemphill v. Flynn 22, 641 Hildebrand v. Lininger 792 V. Giles 58. 470 Hildretli v. Conant 65 Hencliett v. Kimpson 598, 601, 603 Hill V. Barclay 47, 337, 413, 495, 496, Hendee v. Pinkerton 166 685 Henderson v. Hayward 44,45 V. Bishop 331 V. McPike 894 V Carr 246 V. Mears 381 V. De Rochemont 541 V. Squire 524 V. Dobie 456 Hendrick v. Stark 321 V. Goodchild 777 Hendricks v. Judah 456 V. Hill 237 Hendrickson v. Hendrickson 787 V. Robinson 512 Ixviii INDEX TO CASES CITED. Hill V. Saunders 90 V. Sewald 545 V. Stocking 563, 721, 721 a, 721 b V. Woodman 372 Hillary v. Gay 531, 788 HUliard v. Gas Coal Co. 372, 381 V. Ricliardson 175, 201 b Hillier v. Silcox 636 Hills V. Jordan 121 V. Miller 164, 238 V. Thompson 267 Hilton V. Aukesson 183 V. Goodliind . 23 Himely v. Wyatt 587, 588, (589 Hincliman v. Patterson E. E. 208 Hincl^ley v. Emerson 195 Hinde v. Gray 417 Hindle v. Blades 741 V. PoUett 420 Hinsdale i;. White 725 Hinton v. Blain 566 V. Locke 540 Hintze v. Tliomas 449, 708 Hirst V. Horn 527 Hisey v. Troutman 178 Hite V. Parks 444 Hitner v. Ege ,343 Hoag V. Hoag 708 Hobson w. Middleton 821, 324 Hockenbury v. Snyder 708 Hodges V. Horsfall 46 V. Raymond 22 V. Shields 629, 705 V. Smith 627 Hodgkinson v. Crow 45 V. Price S97, 485, 786 Hodgson V. Gascoine 600 V. E. Ind. Co. 806, 674, 676 Hoeveler v. Fleming 380 Hoffu. Baum 485, 525 Hoffman v. Armstrong 191 V. McCoUum 57, 76 V. Riehl 164 Hogan V. Fitzgerald 16 V. Hurley 705, 728 a V, Sharpe 195 Hogg V. Brooks 484 Holbrook v. Chamberlain 137, 360, 361 V. Tirrell 511 V. Waters 417 V. Young 308, 374, 377 Holden v. Cox 424 a V. Lake Co. 224 V. Shattuck 184 Holder v. Chambury 656 V. Taylor 246, 250, 304 Holding V. Pigott 538 Hole V. Thomas 179 a, 694 Holford V. Dunnett 253 V. Hatch 109, 371, 433, 435, 448, 449, 456 HoUaday v. Bartholoraae 577 V. Marsh 184, 186 a Holland v. Bouldin 281, 289 Holland v. Brown 558 V. Falser 391 Holley V. Metcalf 456 V. Young 41, 332 HoUiday v. CamseH 769 V. Marshall 335, 427 HoUis V. Burns 67 V. Carr 247 V. Pool 64, 65, 718 V. Whiting 32 Holmes v. Blogg 94,96 V, Brunskill 508 V. Buckley 242 V. Day 55 V. Goring 161, 162 V. Holmes 393 V. Maddox 521 V. Mentze 435 V. Seely 214 V. Seller 318 V. Tremper 645, 648, 770 V. Wilson 766 Holsman v. Abrams 22, 332, 525, 533 Holt V. Martin 705, 708 V. Sambach 760 HoltzapflFel v. Baker 329, 872, 375 Holyoke Machine Co. v. Franklin Paper Co. 170 Home L. I. Co. v. Sherman 377 Homer v. Dorr 540 Hood V. Banning 559 V. Hartshorns 553 Hooker v. Cummings 221, 229 Hool V. Bell 433 Hooper v. Clark 262 V. Farnsworth 161 Hooten v. Holt 14, 466 Hoover v. Clark 246 Hopcraft v. Keys 707 Hopkins v. Bradford 361 V. Buck 787 V. De Robeck 596 V. Hopkins 739, 755, 758 V. MoUineaux 137 V. Mehaffy 138 V. Young 276 Hopkinson v. McLellan 720 V. Lee 264 Hopper, Matter of 594 V. Chamberlain 721 Hoppes V. Cheek 310 Horn V. Baker 548 V. Luines 393 Hombeck v. Westbrook 126, 147, 155 Hornby v. Cramer 393 V. Houlditch 438 Horner v. Graves 417 V. Leeds 75, 708 Hornidge v. Wilson 439, 451, 461 Horsefall v. Mather 343, 421 V. Testar 362 Horsey v. Graham 68 V. Horsey 26 Horsford v. Webster 665, 590, 733 DSTDBX TO CASES CITED. Ixix Horsford v. Wright 317 Horsley v. Rush 137 Horton v. Cooley 642 V. N. Y. C. R. R. 272, 494 Horwitz V. Anderson 364 V. Davis 458 Hosford V. Ballard 261, 295 Hoskins v. Knight 601, 603 V. Paul 658, 587 V. Rhodes 24, 642 Hotliam V. E. Ind. Co. 276 Houghton, Ex parte 457 V. Potter 790 House V. Burr 332, 383, 340 V. Metcalf 175 V. Miller 792 Houser v. Reynolds 94 Houston V. Farris 133 Hovey v. Newton 459 How V. How 664 V. Kennett 458, 641, 643 V. Norton 635 Howard v. Carpenter 21, 471 V. Digby 97 I'. Dill 579 a V. Doolittle 306, 328, 375, 383 V. Ellis 19, 176, 416, 418 V. Heinerschit 459 V. Howard 86 V. Lee 201, 208 V. Lovemore 431 K Merriam 61, 65, 720 V. Ramsay 583 V. Shaw 25, 637 Howcott V. Collins 391 Howe V. Bass 163 V. Bryant 399 V. Kensett 58 Howell V. M'Coy 200, 224 V. Richards 305 V. Ripley 123 V. Schenck 118, 534, 537 Howe Sew. Maoh. Co. v. Sloan 583 Howes V. Brushfield 307 Howland v. Coffin 440, 620, 681 V. Vincent 195 Howlet V. Strickland 630 Howse V. Webster 620, 626 Hoy V. Holt 357 V. Sterret 2.39 Hoyle V. Bush 160 V. Stowe 95 Hoyt V. Dillon 86 V. Stoddard 456 V. Thompson 128 Hubbard v. Bank of Chenango 633 V. Hubbard 298 V. Moss 424 a V. Norton 321 V. Shaw 351 Hubbell V. Rochester 773, 781 Hubner v. Feige 786 Huddersfleld Can. Co. v. Buckley 779 Huddle V. Worthington 250 Huddy V. Fisher 256 Huds. & Del. Canal Co. v. N. Y. & E. R. R. 209 Hudson V. Bartram 49 V, Jones 93 V. Parker 543 Huerstell v. Lorillard 447 Huffell V. Armistead 57 Huffman v. David 79 V. Hulbert 424 6 t;. Mc Daniel 71 V. Starks 30, 68 Huggeford v. Ford 763 Huggins t'. Wood 24 Hughes, Ex parte 142 V. Chatham 24 J,. Clarksville 522 V. Heiser 207 V. Hughes 570, 590 e. Mason 717 V. Metro. R. R. 496 V. Palmer 492 V. Robotham 508 V. Wood 176, 177 V. Young 318 a, 395 Hughes, Minor's Appeal 135 Hughs V. Sebre 564 Hulett V. Nugent 19 Hull V. Foster 164 V. Fuller 160 V. Vaughan 25 Hulme V. Shreve 209 Hulseman v. Griffiths 705 Hultain v. Munigle 477 Humbert v. Trinity Church 85, 86 Humble v. Glover 620, 621 Hume V. Hendrickson 109 Humphries v. Brogden 236 V. Cousins 201 Hungerford v. Clay 118 Hunt V. Adams 165, 424 o V. Allen 312 V. Amidon 262, 395 V. Bailey 525 t.. Bishop 276 V. Braines 760 0. Campbell 160, 164 V. Colson 24 V. Comstock 14, 20, 39, 720 V. Cope 757 V. Morton 475 V. Orwig 317 V. Potter 550 V. Round 745 V. Stone 635 V. Thompson 426, 440, 635, 640 V. Warnicke 143 V. Wolfe 525, 636 Hunter v. Hunter 169 V. Jones 535 V. Leconte 392, 666, 573, 729, 750 V. Osterhoudt 497, 718 V. Reiley 374, 877 V. Sav. C. S. Min. Co. 79 Ixx INDEX TO CASES CITED. Hunter v. Whitfield Huntiogton v. Finch Huntly V. Russell Hurd V. Curtis V. Darling V. Fletcher V. Miller Hurlbut V. Post Hurst V. Rodney Huson V. Young Hustons V. Winans 424 a, 559 165 547 242, 261 24 307 636 177 452 214 a 246 Hutchins v. Chambers 565, 730, 733, 777 781 V. Martin 612, 513 V. Scott 578 V. Smith 175, 201 Hutchinson v. Dearing 121 V. Potter 475 V. Read 276 Huttemeier v. Albro 212 Hutton V. Powers 115 V. Warren 56, 258, 420, 538, 540 Hyatt V. Burr 728 V. Griffiths 525 V. Seeley 793 V. Wood 65, 532, 772, 774 Hyde v. Dean of Winsor 460, 661, 669 V. Palmer 493, 713 V. Price 105 V. Skinner 262, 384, 337, 459 V. Stone 101 Hylton V. Brown 711 I. Ibbs V. Richardson 22, 55, 64, 624, 642 Iddings V. Nagle 538, 541 Iggulden ;;. May 246, 247, 305, 333, 371 Ilott V. Wilkes 194 a Ilsley ti. Stubbs 739 Imbert v. Hallock 720 a Imboden v. Mining Co. 629 Importers' Ins. Co. v. Christie 497 Inches v. Dickinson 469 Indermauer v. Dames 192 Ind. & M. Dnion v. C. C. C. & I. R. R. 137, 403 Ind. P. & C. R. R. V. Petty 186 Indianapolis R. R. v. Wright 199 Ingals V. Plamondon 188 Ingersoll v. Jackson 820 V. Sargent 261 Ingraham v. Baldwin 97, 629, 705, 707 V. Hammond 758 V. Wilkinson 229 Ingram v. Little 149 Inhabs. AUoway Creek v. String 126 Inhabs. v. Huntress 149 Inman v. Stamp 30, 66, 68 Innes v. Agnew 263 V. Colguhon 756 Ins. Co. V. Bk. of Missouri S32, 525 V. Haven 14 Ireland v. Nichols 497, 500 Irish V. Johnston 259, 261 Iron Co. V. Stephens 164 Irvine v. Crocket 95 V. Wood 175, 201 a Isaac V. Clark 707 Isaacs V. Roy 78, 477 Iseham v. Morrice 84,87 Ish V. Chilton 728 o Isham V. Morgan 161 Isherwood v. Oldknow 156 Israel v. Israel 115 V. Simmons 661 Ivay II. Hedges 176 a Ives V. Ives 38, 623 V. Van Epps 374 c: Williams 526 Izon V. Gorton 66, 372, 382, 520, 645 Jackman v. Arlington Mills 175, 201 a Jacks V. Smith 661, 563 Jackson, Ex parte 120 Jackson v. Adams 721 a V. Aldrich 26 V. Allen 110, 213, 279, 497, 499, 600 V. Anderson 167 V. Andrew 350, 492 V. Babcock 237 a V. Bain 424 a V. Baker 481 u. Bard 68 V. Bodle 167 V. Bradford ' 87 V. Bradt 54, 55, 60, 466 V. Brownell 24, 407 V. Brownson 172, 345, 353, 406, 407, 491, 495, 497, 698 V. Bryan 65, 469, 476 V. Buel 699 V. Bull 87 V. Burchin 94 V. Burton 86, 472 V. Campbell 129 V. Carpenter 93, 94 V. Catlin 169 V. Cator 113, 348, 692, 695 V. Chase 167 V. Clark 38, 164 V. Collins 297 V. Combs 711, 712 V. Cooly 706 V. Corliss 408 V. Cory 126 V. Crafts 289 V. Crysler 298 V. Cuerden 708 V. Davis 19, 108, 705, 706, 708 V. Delacroix 39 V. Delancy 442 INDEX TO CASES CITED. Ixxi Jackson v. De Walts 706 V. Deyo 25, 468, 472 V. Dobbin 706 V. Eddy 381 V. EUton 86 V. Farmer 532 0. Foster 149 V. French 466, 472 V. Frost 86 V. Fuller 474 V. Gardner 512 V. Gilchrist 103 V. Green 121 1). Groat 404 V. Hakes 716 I'. Harder 705 V. Harper 442, 705 V. Harrison 108, 279, 403, 493, 702 V. Hayner 98 V. Hill 167, 712 V. Hinman 629 V. Hofeman 87 V. Hogeboom 301, 700 V. Holden 765 V. HoUoway 102, 103 V. Hopkins 474 V. Hull 502 V. King 97, 98 V. Kingsley 25, 472 V. Kipp 297, 301 V. Kisselbrack 41 V. Laughhead 471, 474 V. Law 634 V. Leek 168 V. Loomis 71] V. Louw 163 V. Lunn 143 V. Mancius 522 V. Marsh 164, 311 ». May 699 V. McClallen 273, 278, 279 V. McConnell 101, 168 V. McLeod 64, 706 V. Miller 19, 55, 60, 466, 468, 705 «. Moncrief 39, 60, 471 V. Morse 532 V. Mowry 19, 636 V. Murray 87 V. Myers 38 V. Newton 708 I). Niven 471 V. Odell 882 17. Oppenheimer 375 K. Parkhurst 64, 138, 167, 465 V. Pesked 173, 195 V. Phillips 171 V. Phipps 167 V. Pierce 32 V. Post 171 V. Pratt 129 V. Randall 711 V. Bich 407 V. Richards 167, 168, 169 V. Robinson 470 Jackson v. Rogers 60, 84, 758 u. Rowan 471 u, Rowland 25, 169, 708 V. Salmon 468 V. Sample 471 V. Schoonmaker 148 V. Schutz 285, 404, 497 V. Sellick 773 V. Selover 699 V. Sheldon 497, 499, 565, 720 V. Silvernail 403 V. Sisson 126 V. Smith 86 V. Smithson 195 V. Stackhouse 471 V. Stacy 216 V. Stafford 485 V. Sternberg 319 V. Stevens 87 V. Stewart 705, 706 V. Stiles 705 V. Streeter 150 V. Tibbitts 348, 490 V. Titus 149, 427 V. Todd 95 V. Topping 293, 489 V. Vanderheyden 104 V. Vincent 522 V. Vosburgh 708 V. Walsh 128 V. Warford 84 V. Waters 12 V. West 171 V. Wheedon 705 V. Wheeler 472 t;. Wliitford 705, 708 V. Widger 163 V. Wilsey 55, 469 V. Winslow 171 V. Wood 167 V. Wyckoff 301, 702 Jacob V. King 750 Jacobowsky v. People 201 Jacobs V. Davis 264 V. Graham 79 Jacques v. M. E. Church 107 JafEe V. Harteau 175 a, 193 Jamaica v. Hart 629 James, Ex parte V. Belding 142 629 V. Dean 336, 434 V. Emery 264, 664 V Fowks 653 V. Hay ward 210 V. Johnson 602 u. Landon 89 V. Morey 503,504 V. Pope 466, 636 V. Stuyvesant 728 V. Vanderheyden 169 Jamieson v. Millemann 237 a Janes v. Emery Oil Co. 273 Jaques v. Gould 164, 364. V. Millar 30 Ixxii INDEX TO CASES CITED. Jaques r. Short 437 V. Withy 267 Jarboe v. Mulrey 160 Jarvis v. Hamilton 717, 728 a, 7flO Jefferson v. Bp. of Durham 686 JeflFery v. Bastard 740, 741 JeflTrey v. Neale 397 Jeherwood v, Oldknow 429 Jemison v. Blowers 457 Jenckes v. Cook 707 Jenkins v. Bodley 164 V. Church 84 V. Eldredge 39 V. Hopkins 319 V. Jenkins 484, 493 V. Morton 664 V. Pell 579 a V. Portman 365 V. Turner 195 Jenks V. Edwards 176 Jenner v. Clegg 565 V. Morgan 389 V. Tolland 597, 737 Jennings, Ex parte 221, 229 V. Alexander 448, 686 V. Bragg 85 V. Throgmorton 521, 644 Jerritt v. Weare 324 Jervis v. Tomkinson 78 Jesser v. Gifford 173, 180, 443 Jeter v. Mann 214 Jeune v. Ward 95 Jevens v. Harridge 143, 384, 461 Jewell V. Scliroeppel 650 V. Woodman 24 Jewett V. Brooks 317 V. Jewett 240 Jimison v. Beifsneider 683 Jochen v. Tibbells 705 John V. Jenkins 88, 42 Johns V. Fritchey 100 V. McDanlel 471 t'. Whittey 291, 292 Johnson v. Baynes 760 V. Boyfield 246 V. Carter 24 V. Cliely 707, 717 V. Dixon 175 a, 348 V. Douglass 489 V. Putch 180 V. Gurley 273, 291 V. Hannahan 632 V. Hanser 25, 720 V. Hartshorn 117 V. Hinman 705 V. Hoffman 24 V. Huds. Eiv. E. R. 198 V. Johnson 55, 59 V. Mcintosh 8 V. Merritt 458 V. Moore 97 V. Oppenheim 649 V, Packer 93 V. Phoenix Mut. L. Ins. Co. 26, 171 Johnson v. Proctor 249 V. Prussing 561 V. Sherman 452 V. Stewart 78, 477 V. St. Peter's Hereford 863 V. Webster 604 V. WoUyer 7o4 Johnston v. Bates 452 V. Sutton 782 Johnstone v. Huddlestone 486, 512, 527, 529 Jolly V. Arbuthnot 120 Jones V. Barkley 265, 276 V. Boston 321 V. Brewer 135 V. Carter 273, 497 I). Chamberlaine 63 V. Clark 180, 571, 708 V. Dove 706 V. Freidenburg 176 a V. Gardner 276 V. Green 675 V. Gundrim 561, 579 a, 580 V. Hutchinson 85 V. Goldbeck 583 V. Jones 44, 60, 410, 696 u. Kitchen 758 V. Logwood 166 I: Marsh 484 V. Mills 522 V. Morris 341 V. Murdaugh 729 V. Patterson 101 V. Percival 213 V. Peterman 32 V. Phipps 479 V. Powell 191, 204 V. Reed 493 V. Reynolds 638, 641 V. Richardson Append. No. V. V. Roberts 497 V. Shears 55, 524 V. Thorne 418 V. Willis 55, 57 Jordan v. Mead 21 V. Staples 24, 158 V. Twells 678 V. Wikes 102 V. Wyatt 196 Jordin v. Crump 194 a Josslyn V. McCabe 551 Joule V. Jackson 589 Jourdain v. Wilson 262, 437 Journeay v. Brackley 458 Joy V. Bost. Penny Sav. Bk. 188. Joyce V. De Giverville 175 a, 828 Joynes v. Wartman 729 Judd V. Ensign 78 V. Fairs 718 V. Fulton 893 Judson V. Luckett 66 Jungerman v. Bovee 507 Justice V, Low 717, 728 a INDEX TO CASES CITED. Ixxiii K. Kabley v. Wore. Gas Co. 39 Kabus V. Frost 44, 382 Kain v. Hoxie 448, 450 Kaley v. Shed 424 Eane v. Mink 447 V. Sanger 445, 665, 667 V. Vandurbergh 173, 600 Kantrowitz v. Prather 106 Karl V. Maitland 197 Eassing v. Keohane 557 Kastor v. Newhouse 843 Kaufman v. Myers 661 KauHeen v. Tillman 787, 789 Kavanagh v. Gudge 581 Kea V. Bobson 160 Kearney b. Post 16 Kearsley v. Phillips 120 Keates v. Cadogan 882 Keating v. Cruden 434 Keats V. Hugo 239 Keay v. Goodwin 115, 179 a Keech v. Hall 120, 474, 703 Keefe v. Milw. Co. 193 Keeler v. Davis 471, 497 Keeling v. Morrice '357, 452, 661 Keely v. O'Connor 175 Keiper v. Klein 239 Keirnan v. Germain 880, 374 Keite v. Boyd 739, 748 Keith V. Paulk 180 V. Swan 118 Kellenberger v. Foresman 328, 331 Keller v. Webber 559, 564, 583 Kelley v. Austin 545 V. Mayor 127 V. Patterson 69, 111 Kellogg V. Groves 524 V. IngersoU 821 V. Rand 167 V. Robinson 262 Kellum V. Berks. Life Ins. Co. 442 Kelly V. Border City Mills ' 544 V. Clubbe 619 V. Coote 96 V. Dutch Ch. of Schenectady 310,317 V. Loehr 485 V. Teague 374, 787 V. Todd 536 V. Waite 62 V. Weston 24, 533 Kelsey v. Barney 199 Kemp V. Derrett 68, 475, 477 Kendall v. Garland 176 V. Kingsley 78 V. Moore 524 Kendrick v. Bartland 209 Kenege v. Elliott 494 Eennan v. Wright 424 a Kennard v. Harvey 424 a Kennedy v. Lange 583 ^,. Wheatly 773 V. Beames 424 a Kennedy v. State 178 Kenny v. May 609 Kenrick v. Smith 492 Kenson v. Reading 157 Kent V. Welch 253 Kentz V. McNeal 209 Keogh V. Daniell 651 Keppell V. Bailey 261 Kerley v. Hume 749 Kerr v. Kingsbury 552 V. Merch. Exch. Co. 520 V, Sharp 607, 613, 729 V. Shaw 308, 311 V. Simmons 525 Kerrains v. People 21,24 Kerslake v. White 161 Kessler v. McConaehy 377, 683 Ketcham v. Brazil Rock Coal Co. 627 Ketchura v. Evertson 44 Keteltas v. Coleman 401 Ketsey's Case 96, 628 Keyes v. Dearborn 78 Kidd V. Dennison 345, 350, 353, 354 Kidder «. West 315 Kieran v. Sandars 92 Kiersted v. Railroad Co. 139, 686 Kighly V. Bulkley 54, 55 Killer v. Ege 711 Killion V. Power 178 ICimball v. Cross 332 V. Grand Lodge of Masons 305, 545 V. Lockwood 121 V. Pike 426 V. Rowland 121, 485 Kimmell v. Burfeind 175 a Kimpton v. Eve 259, 362, 547, 691, 693, 695 V. Walker 252 King V. Anderson 390 V. Baldwin 656 V. Fowler 585 V. Fraser 635, 651 V. Housatonio R. E. 119, 571 V. Johnson 26, 544 0. Jones 324, 446 V. King 229 V. Lawson 62 V. Mellor 699 V. Murray 705 V. Pedley 175, 778 V. Reynolds 305 V. Russell 201 a, 201 b V. St. Louis G. L. Co. 789 V. Wilcorab 546, 552 V. Wilson 16 King's Chapel v. Pelham 293 Kingdon v. Nottle 262, 263, 665 Kingman v. Abington 524, 708, 729 V. Pierce 138 V. Sparrow 163 Kingsbury v. Collins 534 V. Westfall 372, 424 i, 518 Kingsland v. Barnewall 142 V. Clark 386, 619 Ixxiv INDEX TO CASES CITED. Kingsmill v. Millard 179 Kinley v. McFillen 723 Kinlyside v. Thornton 547, 663, 688 Kinney v. Watts 257, 804 Kinsey v. Minnick 517 Kinsley v. Ames 65, 718 Kinsman v. Greene 186 Kip V. Mervin 376 Kirby v. Boylst. Market 175 a, 330 Kirkham v. Chadwlck 333 ti. Sharp 216 Kirkman v. Jervis 66, 646, 649 Kirtland v. Pounsett 25, 60, 651 Kirwan v. Kennedy 318 a V. Latour 544, 550 Kissecker v. Monn 765 Kitchen v. Lee 96 Kitchin v. Buckley 443 Kite V. Tubbs 789 Kitteridge v. Elliott 195 Kittle V. St. John 509 Klauder v. McGrath 188 Kleber v. Ward 583 Kline V. Beebe 94, 96 V. Catara 270 V. Jacobs 636 Kling V. Dress 362 Knapp V. Marlboro 305 V. Smith 104 Knecht v. Mitchell 468, 471 Knevitt v. Pool 534 Knickerbacker v. Killmore 247, 254 Knight V. Benett 22, 66, 469, 563, 757 V. Burnell 61 V. Cox 707 V. Crockford 86 V. Ind. Coal Co. 59 V. Mory 408 Knight's Case 296 Knights V. Quarles 459 Knipe v. Palmer 97, 136, 384 Knolles's Case 154 Knowles v. Hull 64, 76, 524, 641 V. Pierce 590 V. Richardson 204 Koch's and Balliet's Appeal 369 Koob V. Ammann 24 Kooystra v. Lucas 161 Koplitz V. Gustavus 56 Kornegay v. Collier 439 Kortz V. Carpenter 308, 311, 314 Kramer v. Cook 332, 364, 372, 380 Krank v. Nichols 524 Kratemayer v. Brink 25 Kraus v. Arnold 393 Krevet v. Meyer 789 Krider v. Ramsay 448 Krueger v. Perrant 175 a, 328 Kuhlmann v. Meier 551, 554 Kunckle v. Wyniek 436 Kunzie v. Wixcom 64 Kurrus v. Seibert 173 Kutter V. Smith 335 o, 533, 551 Kyle V. Proctor 424 b, 524 Lacey v. Lear 714 Lacy V. Arnett 237 a Ladd V. Smith 515 V. Thomas 566, 603, 736, 776 Lade v. Shephard 768 Ladue v. Detroit 122 La Farge v. Mansfield 15, 383 Lafayette R. R. v. Adams 194 La Frombois v. Jackson 86 Lageman v. Kloppenberg 110 La Grew v. Cooke 634 Laguerenne w. Dougherty 525 Lahy v. Holland 264 Laird v. Boyle 382 Lake v. Campbell 137 V. Gaines 424 a V. Smith 528 Lamar v. McNamee 609, 615 Lamb v. Brewster 396 V. Bunce 247 V. Lathrop 392, 634 Lamberton v. StoufEer 24, 391, 534 Lambeth v. Ponder 424 a Lametti v. Anderson 835 L'Amoreux v. Crosby 97 Lamott V. Sterett 375 Lamson v. Clarkson 708 Lancashire v. Mason 427, 708 Lancaster v. De Trafford 46 Lancaster T. Co. «. Rogers 209 a Landsell v. Gower 472 Landydale v. Cheyney 252 Lane v. Crockett 604 V. Crombie 199 V. King 637 V. McKean 104 Lang ti. Weaver 24 V. Young 728 a Langdon v. Potter 787 Langendyck v. Burhans 711 Langford v. Pitt 324 V. Selmes 16, 629 Langworthy v. Meyers 789 Lanigan v. Kille 317 Lansdowne v. Lansdowne 658 Lansing v. Prendergast 457, 682 V. Rattoone 581 V. Smith 204, 209, 211 V. Van Alstyne 310, 378, 679, 684 Lansman v. Drahos 180 Lant V. Norris 246 Lapham v. Curtis 226 V. Norton 60 Lapierre v. Mcintosh 143 Large v. Rosier 456 V. Penn , 163 Larkin v. Avery 30, 5.S2 V. Taylor 24, 183 Lamed v. Hudson 19, 60 Larue v. Farren Hotel Co. 175 Lasala v. Holbrook 233, 237 Lasell V. Reed 541 INDEX TO CASES CITED. Ixxv Lashmer v. Avery 346, 352 Lee V. Norris 84 Latham e. Atwood 534, 536 V. Risdon 636, 546 547, 549, 551, Lathrop v. Blake 544 552 Lathropp v. Marsh 848 , 691, 696 V. Smith 175 Laugher v. Pointer 178 Lee's Case 503, 605 Laughran v. Smith 56 Leeds v. Amherst 697 Launitz v. Dixon 728 V. Cheetham 329, 366, 375 Lavender v. Hall 424 a V. Compton 410 Laverone v. Mangianti 195 V. New Radnor 656 Law V. Hempstead 83 V. Powell 657 Lawlerw. Baring Boom Co. 197 Leem v. McLees 475 Lawrence v. Boston 519 Leery v. Godson 603 V. Brown 442 Lees V. Nuttall 138 V. Buckman 668 V. "Warren 595 V. Combs 184 Legg V. Legg 101 <:. Fox 258 r. Robinson 676 V. French 177, 378, 381 , 662, 649 Legh V. Heald 771 0. Hammill ' 656 V. Heyvett 344, 356, 421. 540. 541 ii. Heister 105 Le Gierse v. Green 16 V. Holden 318 a Lehain v, Philpott 610 V. Kemp 424, 544, 545 547, 551 Leicester v. Rehoboth 87 V. Knight 335 a Leigh V. Hind 419 V. Obee 240 V. Shaw 158 V. Taylor 1.37 V. Shepherd 569 V. Woods 362 V. Westervelt 201 Lawrenson v. Butler 36 LeightoD V. Tlieed 62 Laws V. N. C. R. R. Co. 183 Leishman v. White 315, 878, 649 Law ton v. Lawton 544, 545, 547, 550, Leland v. Sprague 423 552 V. Tousey 710, 773 V. Rivers 243 Lemar v. Miles 549 V. Sager 169 Leniay v. Johnson 424 a V. Salmon 545 Lemington v. Stevens 74,75 Lawyer v. Smith 196 Lennen v. Lennen 111, 517 Lay V. Eisleben 728 a Lenthard v. Morris Canal Co. 209 V. King 223 Leonard v. Burgess 426 Laycock v. TufEnell 756, 767 V. Kingman 21 Laythoarp v. Bryant .36 V. Rogan 104 Laytou v. Pearce 246 V. Storer 175, 175 a Leach v. Koenig 439 Leopold V. Judkins 377 V. Leach 374 Leppla V. Mackey 332 V. Marsh 97 Lesley v. Randolph 55 V. Thomas 343 Leslie v. Pounds 175, 178 Leadbeater v. Roth 309, 381 V. Smith. 328 Leader v. Homewood 551 Lester v. Foxcraft 32 V. Moxon 178 V. Garland 78,79 Lean ». Shutz 105 Le Tourneau v. Smith 59 Lear v. Caldecott 733 Levett V. Withrington 313 Learned v. Ryder 384, 518 Levi V. Lewis 22, 55, 624 Learoyd v. Godfrey 175 Levitzky v. Canning 309 315, 332, 381 Leary v. Meier 377, 467 Lewes v. Ridge 443 445, 665, 667 Leather CI. Co. v. Lorsant 417 Lewis V. Adams 705 Leavitt v. "Fletcher 309, 329, 330, 331, V. Burr 468 364, 373 V. Chapman 209 V. Leavitt 55, 60, 61, 467, 475 t>. Chisholm 328, 374, 375 V. Murray 160 V. Effinger 533 Lecatt V. Stewart 705, 792 V. Jones 541 Le Couteulx v. Sup. of Erie Co. 842 1 V. Lee 105 Ledoux V. Jones 424 i V. Lozee 666 Leduke v. Mark 403 V. Lyman 24, 541 Ledyard v. Morey 213, 638 V. Mahone 424 a Lee V. Adkins 166 V. Payn 165, 378, 380 V. Arnold 296 V. Pead 99 V. Cooke 669 V. Seabury 44 V. Gansel 66,67 V. Stitle 790 Ixxvi INDEX XO CASES CITED. Lewis V. St. Louis 489 Lockhart v. Ward 124 V. Weldon 276 Lockier v. Paterson 732 V. Willis 654, 705 Lockrow V. Horgan 357 Leyman v. Abeel 220 Lockwood V. Barnes 30 L'iiuissier v. Zallee 15, 176 V. Lockwood 56 Libbey v. Tolford 329, 382 V. Thunder Bay Co 636 Libby v. Staples 245 Lofsky V. Maujer 565, 681 Liddy v. Kennedy 484 Loft V. Dennis 329 Lienow v. Ritchie 773 Loftus' Case 101, 154 Liford's Case 158, 354, 547, 692, 765 Logan V. Anderson 512 Liggins V. Inge 240 V. Barr 513 Lilley v. Fifty Assoc. 894 V. Hall 110 Lilly V. Hodges 668 V. Heron 468, 475 Linalian v. Barr 644 Lomax v. Legrand 424 a Lincoln Bank v. Drummond 288 London v. Greyrae 348 Linden v. Hepburn 16, 489, 497 V. Mitford 339 Lindley v. Miller 729, 730 V. Richmond 445 449, 656 Line v. Stephenson 254 Lond. & N. W. R. R. v. West 705 Lingham v. Warren • 757 Lond. & W. L. Co. .,. Drake 549, 551 Linn ;;. Boss 372 Long V. Colburn 138 Linsley v. Tibbals 26, 164 V. McLanahan 415 Linton v. Hart 385 V. Nethercote 625 Lisburne v. Davies 179 u. Ramsey 170 Lisher v. Pierson 754, 758 L. I. R. R. Co. V. Marqu and 128, 891 Lister v. Brown 612 Longfellow v. Longfello IV 522 640, 705 Litchfield v. Ready 15, 121 Longstreet v. Pennock 424 a Lithgow V. Kavenagh 103 Longwell v. Redinger 581 Little V. Heaton 298 Loomis V. Bedel 308 V. Lathrop 184 V. Terry 195 V. Martin 19 640, 641 V. Wilbur 352, 353 V. Pallister 173 Looney v. McLean 175 a V. Pearson 637 Lord V. Vreeland 340 Littleton v. Winn 636 V. Wormwood 184 Lively v. Ball 629 Lore V. Pierson 525 Livermore v. Eddy 331 Loriraer v. Lewis 789 Livett V. Wilson 227 Loring v. Bacon 179 a, 367 Livingston v. Adams 226 Losee v. Buchanan 197 i;. B.-iker 481 Lothrop V. Thayer 349 V. Conner 701 Lougee v. Collon 574 V. Haywood 688 Lougher v. Williams 666 V. Hollenbeek 342 Loughran v. Ross 552 V. Ivetcham 219 Lounsberry v. Snyder 29,56 305, 380 V. Livingston .630 656, 657 Lovat V. Ranelagh 337 495, 496 V. Miller 392 Love V. Dennis 705 V. Peru Iron Co. 86 v. Edmonstone 25 V. Potts 507, 512 V. Howard 397, 398 V. Reynolds 172, 345, 353 V. Law 424 a, 525 V. Sage 68 Lovering v. Lovering 252 V. Stickles 246, 278 284, 404 Lovett V. Steam Sawmill Co. 129 i;. Sulzer 545 V. The German Ref. Ch. 123 V. Tanner 25, 63, 64, 471, 532 Low V. Elwell 523, 532 V. Tenbroeck 219 V. Hallett • 625 V. Tompkins 489 V. limes 415 Lloyd V. Crispe 287, 405, 406 411, 501 Lowe V. Emerson 708 V. Peel 711 V. Felch 389 V. Rosbee 622 V. Griffiths 96 V. Tomkies 305, 378 V. Miller 24 V. TJnderkofler 758 V Peers 267, 671, 673 Lloyde v. Gregory 512 Lowell V. Spaulding 178 Loader t;. Kemp 331 Lowell M. H. V. Hilton 176, 246 Locke V. Frasher 707 Lower v. Winters 28 V. Furze 817 Lows V. Telford 531 V. Wright 259 Lowther v. Carill 35 Lockey v. Lockey 660 V. KeUy 258 INDEX TO CASES CITED. Ixxvii Lubbock I). Tribe 342 Macon v. Crump 670 Lucas V. Brooks 706 Maddon v. White 58 V. Comerford 365, 685 Maddox v. White 173 Luce V. Carley 86 Maddrey v. Long 173 Lucier v. Marsales 121, 639 Magaw V. Lambert 380 Lucke V. Lncke 258 Magee v. Atkinson 638 Luckey v. Rowzee 661 V. Fisher 424 a Lucy V. Levington 312, 667 Magill V. Hinsdale 180, 571, 708 V. Wilkins 514 Magor V. Chadwick 224 Ludford v. Barber 118, 465, 662 Mahan v. Brown 204 Ludlow V. McCrea 247, 264 Mahoney v. Atl. & St. L. R. R. 175 V. N. Y. & H. R. R. 492 Maidstone v. Stevens 700 LudweU V. Newman 304, 309, 313, 315, Main v. Feathers 371 378 649, 702 Main's Case 360, 361 Lufkin V. Wilson 441 Mainwaring v. Giles 784 Luker v. Dennis 261 Mairs v. Sparks 789, 790, 792 Lumley v. Hodgson 639 Makin v. Wilkinson 330 V. Timms 335 a Maleverer v. Spinke 352 Lunn V. Gage 331, 374 Malin v. Malin 165 Lunsford v. Turner 708 Mallam v. Arden 666 Lunt V. Brown 773 Mallon V. Story 98 V. Hunter 222 Mallory's Case 166, 442 Lush V. Druse 164, 391 892, 493 Malpas V, Ackland 130 Luttrell's Case 239 Manby v. Scott 101 Lutz !>. Miles 787 Manchester v. Hough 103 Luxmore v. Robson 361 Manchester Bond. Warehouse Co. Luxton V. Stephens 87 V. Carr 330 345, 849, 382 Lyburn v. Warrington 164 Mandeville v. Solomon 179 a Lyddal v. Dunlap 469 Manice v. Millen 497, 498 Lyde v. Russell 551, 553 Mann v. Brewer 635 Lyman v. Gibson 184, 186 V. Love joy 564 V. Hale 191 V. Pearson 163 Lynch, In re 100 Manning v. Smith 162, 217, 239, 243 V. Baldwin 374 877 880, 559 Mansell v. Burredge 264 V. Morse 170 Manser v. Dix 493 Lynde v. Hough 286 403, 489 Manser's Case 98, 326 V. Noble 728 Mansfield u. Blackbume 549 V. Rowe 644 Mansony v. U. S. Bank 121 Lynne v. Moody 781 Mansur v. Pratt 135 Lyon V. Cunningham 26 Mantz V. Goring 858 V. Kain 149 Manwell v. Manwell 24 V. Odell 391 March u. Freeman 662 V. Reed 150, 607 Marie v. Semple 711 V. Washburn 629 Mariner v. Crocker 444, 450 V. Weldon 609 Mar. Ins. Co. v. Hodgson 676 Lyons v. Adde 261, 441 Mark v. Noyes 358 Lysle V. Williams 78 Market Co. v. Lutz Markle v. Hatfield Marks v. Robinson 708 394 681 M. Marie v. Flake Marley «. Rogers 621 708 Maberry v. Dudley 381 Marquart v. Lafarge 20, 178 Macdonnel v. Welder 617 Marquat v. Marquat 101 Macher v. Found. Hosp. 286, 410, 419, Marquissee v. Ormston 579 a, 781 496 Marriott v. Cotton 361 Machin v. Molton 669 V. Stanley 178 Mack V. Burt 56 Marrow v. Turpin 626, 680 V. Patchin 304, 317 Marsan v. French 180 Mackay v. Bloodgood 166 Marsh v. Brace 438 V. Mackreth 58, 459 I). Curteys 497 Mackerbin v. Whitcroft 377 0. Nelson 171 Mackintosh v. Trotter 649, 561 Marshall v. Berridge 30 Mackworth v. Thomas 673 V. Broadhurst 460 Macomber v. Parker 640 V. Cohen 175 o Ixxviii INDEX TO CASES CITED. Marshall v. Craig 270 Matter of NicoU 135 V. Davis 739 Matter of Roch. & S. R. R. 186 V. Giles 661 Matter of Shotwell 791, 793 V. Heard 175 Matthews v. Baxter 100 V. Knox 559 V. Fiestel 184 V. Lippman 108 V. Sawell 509 V. Mosely 389, 443 V. Stone 583, 595 V. Peters 224 V. Tobenor 515 V. Rutton 105 Matthewson's Case 258 Marshalsea, Case of the 719, 782 Mattoon v. Monroe 306 Marston v. Baldwin 739 Mattox V. Hlghtshee 25 V. Gale 237 a Matts V. Hawkins 189 V. Hobbs 306, 667, 670, 674 Maule V. Ashmead 252, 254 Martin v. Baker 262, 263, 445 V. Weaver 259 V. Berens 376 Maull V. Wilson 196 V. Black 459, 461 , 577, 594, 595 Maverick v. Austin 216 V. Delaware Ins. Co. 540 V. Lewis 24, 26, 53, 159, 310 V, Dwelly 104 Mawle V. Cacyffyr 626 V. Goble 240 Maxwell v. Ward 339 V. Martin 311 May V. Burdett 195 V. Mitchell 36 V. Calder 135 V. O'Connor 16, 426 V. Luckett 524, 789 V. Eay 753, 758 V. Rice 476, 625 V. Roe 547 V. Trye 256, 384 V. Smith 32, 56, 80, 525 Mayer v. Cushman 398 V. Splivalo 787 V. MoUer 631 u. Sterling 83 Mayhew v. Hardesty 401 , 406, 449 V. Stevens 424 a, 515 V. Norton 163 V. Tlioriiton 653 Mayho v. Buckhurst 444 V. Tobin 427, 503 Maynard v. Cable 471 V. Waddell 222 V. Maynard 167, 168 Martyn v. Clue 260 Mayo V. Feaster 694 Marvell v. Ortlip 19 V. Fletcher 122 124, 537 Marvin v. Stone 160, 246 „. Shattuck 632 Mary Portington's Case 272, 284 V. Winfree 568 Marys v. Anderson 78 Mayor v. Bailey 198, 2.32 Mascal's Case 665 V. Blamire 669 Mason v. Corder 405 V. Brooklyn F. I. Co. 415 0. Fenn 551, 552 i;. Corlies 175, 178 K. HUl 224 V. Curtis 209 V. Holt 532 V. Furze 201 V. Keeling 180 V. Hamilton F. 1. Co. 415 V. Myers 536 V. Hedger 691 V. Powell 787, 788 V. Henley 204, 783 V. Smith 436 V. Ketchum 389 V. Wolff 707 V. Lord 181 Mass. H. L. I. Co. v. Wilson 121 V. Lowten 126 Massengill v. Boyle 163 V, Lyon 173 Massey v. Goyner 231 V. Mabie 257 304 305, 374 Massie v. Long 116 V. Pattison 260 262, 416 Master v. Howard 248 V. Pentz 181 V. PoUier 191 V. Price 379, 631 Masters v. Miller 165 V. Richardson 222 Masterson v. Bentley 424 a V. Sanders 638 Masury v. South worth 260, 400 V. Thomas 385 387, 662 Mather v. Fraser 544 V. Tyler 525 V. Trinity Church 749, 769, 784 V. Ward 768 773, 782 Mathews v. Terwilliger 49 V. Whitt 708 Mathews' Appeal 180 Mayor of Lynn, Case of 126 Mahias v. Mesnard 587, 589, 590 Mayowe's Case 84 Matter of College St. 397 McAdoo V. Callum 332, 705 Matter of Dyer 135 McAlpin V. Powell 328 Matter of Fraser 544 McAlpine v. Swift 339 Matter of Mayor 398 McAneany v. Jewett 195 INDEX TO CASES CITED. Ixxix MoAreavy v. Hannan 125, 150 McBride v. Daniels 874 McCaffrey v. Woodin 424 a, 576 McCall V. Lenox 121, 474 McCampbell v. Miller 683 McCartee v. Orphan Asylum 126 McCarthy v. Noble 149 McCartney v. Alderson 789, 792 V. Auer 439, 728 o V. Hunt 787 M'Carthy ti. York Co. Sav. Bk. 175 M'Cartney v. M'MuUen 790 McCarty v. Burnet 549 V. Ely 176, 372 V. Hudsons 761 V. Syracuse 201 McCauley v. Weller 791 McClain v. Doe 138 McClean v. McCaflTrey 738 McClintock v. Criswell 174 V. Graham 544 McCloskey v. Miller 636 McCloud «. Jaggers 718 McClowry v. Croghan 256 MeClure v. MoClure 471 McColgan v. Huston 746 McComb V. Wright 137 McCorabie v. Daries 577 McConnell v. Brown 167 MeCormick n. Connell 298, 700 V. Stowell 413 McCoy ti. Hyde 721, 721 o V. McMurtrie 627 MoCracken v. Hall 547, 552 McCracken's Heirs v. McCracken's Ex'rs 353 McCray ». Samuel 424 a, 566 McCrea v. Purmort 86, 246 McCready v. Thomson 239 McCreary v. Marston 465 McCreels v. Wallace 25 McCreery v. AUander 143 V. Everding 699 MoCuUough V. Cox 275 McDaniel v. Galium 262, 691 V. Hughes 653 McDermid o. McGregor 49 MoDermott v. M'Uvaine 720 a, 721 V. N. Y. C. & H. R. R. Co. 214 a McDiU V. McDiU 141, 166 McDonald v. Hewett 394 V. Lindall 214, 217 McDowell V. Hendrix 390 V. Shotwell 585 McElderry v. Flanagan 21, 385, 749 McElroy v. Dice 729 McEvoy V. Igo 717 McFarlan v. Watson 108, 636, 641 McFarland v. Barker 754 McFarlane v. Williams 36, 162, 167, 341, 391 McGarvey v. Pickett 717, 723, 728 a McGaunten v. Wilbur 40 McGee v. Fefsler 720 McGee v. Gibson 174 McGeehan v. McLaughlin 678 McGillis V. McAllister 563 McGinnis v. Vernon 721, 728 a McGlashan v. Talmage 382 McGlynn v. Brock 371. 377, 482, 514 V. Moore 287, 500 McGowan v. Lennest 78, 477 McGrath v. Boston 89 V. Donnelly 728 a McGregor v. Brown 345, 350, 353, 697 V. Bawle 22 McGrew v. Stone 197 McGrillis v. State 178 McGruder v. Peter 135 McGuffie V. Carter 708 MoGuire v. Wright 17 Mcintosh V. Lee 60 V. Lown 364 Mclntyre v. Scott 449 V. Strong 167 McKee v. Angelrodt 455 McKensie v. Farrell 424 b, 508, 518 McKenzie v. Lexington 517 McKeon v. Lee 201 V. Whitney 377, 453, 620, 725 McKesson v. Mendenhall 374 McKildoe v. Darracott 286, 412, 501 McKinney v. Peck 625 V. Reader 609, 714 V. Rhoads 168 McKircher v. Hawley 571, 632 McKissick v. Pickle 293 McKnight v. Kreutz 247 McKone i>. Wood 195 McLachlan v. McLachlan 281 McLaren v. Spalding 619 McLarney v. Pettigrew 189 McLaughlin v. Bishop 160 V. Long 686 V. McGoTern 259 V. Nash 25, 544, 545 McLean :;. Klein 424 a V. Spratt 787 V. McCaffrey 613 McLeish v. Tate 391 McLeran v. Benton 508 McMahon v. Tyson 558 McMann v. Autenreith 380 McManus v. Finan 183 McMill V. Sheriff 81 McMillan v. Eobbins 818 a V. Solomon 520 McMuUen v. Riley 28 McMurphy v. Minot 437, 455, 603, 675 McMurtry v. Adams 720 McNair v. Schwartz 26, 636 MoNairy v. Hicks 305 McNamee v. Relf 180 McNeal ti. Emerson 775 McNiel V. Ames 427, 436 V. Kendall 426 McNiels V. Wallace 720 McPherson v. At. & Pac. R. R. 341 Ixxx INDEX TO CASES CITED. McQuade u.Emmons 24, 720 McQuesney v. Hiester 391 Mcliae v. Purmort 246 McWhorter v. McMahan 28, 137 Mead v. Gillett 630 V. Thompson 559 Meader v. Stone 523, 532 Meany v. Abbott 175, 328 Mechanics' Bank v. Capron 457 V. Edwards 504 Mechanics' Ins. Co. «. Scott 312, 871, 377 Mechelen v. Wallace 66, 383 Mecum v. Peoria R. R. 265 Medwin v. Sandham 45, 372 Meecham v. McKay 787 Meeker v. Van Rensselaer 201, 209 Meeks v. Bowerman 381 Mehaffy v. Spears 634 Meier v. Thiemann 118, 708 Meigs V. Lister 201 Mellen v. Morrill 175 V. Whipple 155, 258 Mellor V. Spateman 784 Melody v. Reab 184 Mendel v. Eink 328 Menell v. Hall 64 Meni v. Rathbone 273, 489 Meno i;. Hoeffel 524 Menough's Appeal 391 Meriam v. Harsen 103 Meriton v. Coombs 531 Merkle v. O'Niel 564 Meroney i>. Wright ' 717 Merrill v. Bullock 64, 524, 636 V. Emery 281, 289 r. Frame 254 Merriman v. Caldwell 472 Merritt v. Brinkerhoff 205, 224, 225 V. Fisher 369 V. Judd 545, 651 V. Lumbert 744 V. Parker 224 Merryman v. Shipley 343 Messenger v. Armstrong 486 Messing v. Kemble 736, 777, 781 Metcalfe v. Fosdick 158, 424 a V. Rycroft 258 Metr. Bank v. Taylor 107 Meyer v. Bloom 424 a V. Olirer 424 a V. Smith 513 Meyers v. Wliite 571 Michael v. Mills 317 Michenfelder v. Gunther 720 a Mickie v. Lawrence 41, 63, 391 Middlebrook v. Corwin 541 Middlebury College v. Cheney 324 MiddlekaufE v. Smith 830 Middlemore v. Goodale 262, 323, 445 Middleton's Exr's v. Middleton 19 Midgley v. Lovelace 569, 665 Miers v. Lockwood 746 Miles V. Furber 587, 588 Milford V. Fenwick 86 V. Holbrook 175 Milkman w. Ordway 405 Millar v. Parsons 326 Millard v. Robinson 598 Miller, Ex parte 465 V. Aub. & Sy. R. R. 31, 189, 237 287 a V. Baker 544, 546, 552 V. Bonsadon 708 V. BrinkerhofE 721 V. Bristol 214 V. Cheney 534 V. Forman 201, 521 V. Garlock 217 V. Hastings 106 V. Havens 489, 786 V. Heller 255 V. Hine 104 V. Lang 708, 728 a V. Levi 471, 720 u. Manwaring 101, 113, 151 V. McBrier 707, 708 V. Morris 360 V. Pelletier 35 V. Piatt 86 V. Shield 343 V. Sparks 493 V. Stewart 424 h V. Thornton 306 Miller's Estate 318 a Millhollin v. Jones 705 Millhouse v. Patrick 705 Milliken v. Thorndike 176, 304, 384 Milling V. Becker 60, 514 Mills V. Auriol 682 V. Baer 376, 619 V. Barber 117 V. E. Lond. Union 860, 368 V. Hall 204, 211 V. Halloek 540 V. Hamilton 122, 180 V. Martin 739 V. Merryman 390 V. Peed 519 V. Sampsell 808 Milner v. Horton 255 V. McClean 787 Milnes v. Branch 261, 439, 449 Milward v. Caffin 179 Mine Hill R. R. Co. v. Lippincott 178- Miner W.Clark 311 V. Stevens 532 Minor v. Deland 183 V. Sharon 175 a, 382 Minot V. Curtis 126 V. Joy 376, 399 Minshall v. Lloyd 551, 553 V. Oakes 260, 262 Mirich v. Hoppin 121, 380 Miss. R. R. Co. V. Cromwell 47 Mitchell V. Franklin 559, 579 a V. Hazen 268 V. Read 114. 117, 336 INDEX TO CASES CITED. Ixxxi Mitchell I'. Reynolds 283, 417 V. Walker 248, 320 V. Warner 821, 667 Mix V. Balduc 49 Moale V. Tyson 436, 440 Mobley v. Dent 558 Moffat V. Henderson 246 V. Sydnor 872 MofEatt V. Parsons 566 V. Smith 172, 329, 448, 639, 641 V. Strong 89, 308, 310, 377 Mohawk Br. Co. v. Utlca & S. R. B. 209 Molineaux v. Molineaux 442 Mollett V. Brayne 482, 515, 647 MoUineux v. Powell 694 MoUoy V. Irwin 153 Molton V. Camroux 97 Monk V. Cooper 372 Monks V. Dykes 66 Monro v. Merchant 84, 143 Montag V. Linn 165 Montague v. Mlel 424 a V. Smith 664, 669 Montague's Case 159 Montgomery v. Commissioners V. Craig Moody V. Buck V. King V. Leavitt V. Mayor, &c. Mooers v. Wait Mookley v. Riggs Moore v. Beamont V. Beasley V. Blake II. Bowmaker V. Boyd V. Brown V. Cable V. Calvert V. Davis V. Foley V. Goedel V. Greg V. Harvey :;. Jones V. Mason V. Massie V. McKay I/. Morrow V. Musgrave ». Pyrke V. Rawson V. Savil V. Smith V. Townshend V. Vail V. Weber B. Westerfell V. White Moors V. Choat V. White Morain v. Devlin VOL. I.—/ 332 522 179 a 212 681 175 350, 351, 352, 354 282 777 22, 32, 525, 708 49 742, 745 532, 533 206, 242 187 19 524, 526 833 178, 179 a 428 636 670 532 790 153 64 70 182 239 281 551 805 199 670 365, 428, 450, 455 143 176 Morehead v. Watkyns Morewood v. Hollister Morgan v. Arthurs V. Bissell 0. Campbell V. Davitt V. Griffith V. Hughes V. Morgan V. Morss V. Rhodes V. Smith V. Varick Morgell V. Paul Morison v. Kymer Morley v. Pincombe Morony v. Ferguson V. O'Dea Morrill v. Mackman V. Otis Morris v. Burton V. Dewitt V. Edgington V. Harris V. Morris V. Niles V. Nixon V. Phelps V. Sliter ti. Tillson V. Wadsworth Morrison v. Bassett V. Chadwick V. Erie R. R. V. Keen Morse v. Copeland V. Goddard V. Madox V. Merritt Mortimer v. Brunner V. Orchard V. O'Reagan w. Preedy Morton v. Moore V. Naylor i>. Pinckney u. Weir V. Woods Mosby V. Leeds Mosely v. Allen V. Marshall j;. Virgin Mosbier v. Reding Moss V. Gallimore Moss's Appeal Mossy V. Mead Mott V. CoddingtoD V. Hicks V. Palmer Moufflet V. Cole Moule V. Garrett Moulton V. Moore V. Norton V. Robinson 467 728 649 89,42 650 475 44,743 782 705 358 337 424 6 773 25, 639 663 586 368 163 17, 169 165 626 746 315 253 697 22 100 317 265 17,328 148 705 315, 366, 378 199 229 238 810, 708 383 636 380, 381 32,33 442 617, 639 201 a > 428 456 492 60, 120 574 22 318 a 867, 416, 685 26, 467 112, 119, 571 559 625 25 127 161, 305, 547 419 448, 454 175 38 579 a 24 Ixxxii INDEX TO CASES CITED. Monnson v. Redshaw 729, 742, 762, 763 Mountnoy v. Collier 728 o Mouse's Case 181 Mowatt V. Londesborough 246 Moyer v. Mitchell 357 Moyle V. Mayle 348, 347, 547 Mozart B'd'g Co. v. Friedjen 636 Mugford V. Richardson 532 Mulcaixy v. Eyres 412 Mulrany v. Dillon 336 Momford v. Brown 115, 179 a, 189 328, 527 V. "Whitney 31, 237 a Municipality No. 1 v. N. Orleans 26 Municipality No. 2 v. Currell 397 Munigle v. Boston 76 Mnnn v. Comm. Co. 138 V. Nunn 44 Munroe v. Armstrong 289, 489 Munson v. Wray 26 Murphy v. Chase 610 V. Lucas 790 Murray v. Armstrong 469 V. Cherrington 60, 75 V. De Rottenham 456, 457 V. Hatch 540 V. Murray 411 V. Riley 121 V. Shave 514 V. "Waller 375 Muskett V. Hill 261 Muspratt v. Gregory 589 Mussey v. Holt 439 V. Scott 139, 532 Myers «. Burns 262, 809, 330, 364, 374 V. Dodd 184 V. Forbes 46 V. Gemmel 239, 330 V. Malcomb 201, 204 V. Mansfield 562 V. Silljacks 332, 706 V. "White 122 N. Naish V. Tatlock 456, 635, 643, 652 Nance v. Alexander 25, 636 Napier 7;. Bulwinkle 239 Nash V. Benjamin 80 B. Lucas 678 Nat. Oil Re£. Co. v. Bush 636 Nation v. Tozer 643 Naumberg v. Young 383 Naylor v. Arnitt 131 V. Collin ge 549 Necklace v. "West 787 Neal V. Swind 641 Neale v. Clautice 593 V. MacKenzie 47, 177, 377, 378 V. Ratcliff 276 V. "Wyllie 174, 368 Nealis v. Bussing 123 Needham v. Allison 541 Neel's Appeal 135 Neifert y. Ames 424 a Neiswanger v. Squier 625 Nellis V. Clark 267 V. Lathrop 386, 654, 708, 723 Nelson v. Carrington 495 V. Liv. Brew. Co. 175, 175 a V. Phcenix Chera. "Works 198 V. Thompson 507 Newall V. "Wright 118, 124 Newbergh u. BickerstafE 660 Newbiggin u. Pillans 106 Newbould v. Comfort 426 Newby v. Sharp? 381 V. Vestal 636 Newoomb v. Agan 24 V. Clark 424 a V. Harvey 440, 617 Newell V. Gibbs 708, 728 a V. Hill 186 a V. Sanford 152, 625 Newkerk v. Newkerk. 284 Newlin v. Palmer 628 Newman v. Auderton 17, 66, 760 V. Bird 787 V. Holdmyfast 699 Newman v. Rutter 411, 497, 622, 565, 708 Newson v. Smithies 276 Newton v. AUin 366 V. Galbraith 394 V. Harland 523, 531, 632, 788 V. Newton 179 a V. Osborn 252, 462 V. Roe 705 V. "Wilson 17, 18, 63 N. H. St. & Tr. Co. v. ■\randerbilt 199 New York v, Dawson 625 N. Y. African Soc. w. "Varick 126 N. Y. Cent. R. R., In re 161 N. Y. & Erie R. R. v. Skinner 183 N. Y. Ins. for the Blind v. How's Ex'rs 126 N. Y. Life & Trust Co. 0. Rector, &c. 339 Niblet V. Smith 729, 735, 748 Niblo V. Post 723, 728 NichoU V. Gardner 574 Nichols V. Dusenbury 374, 379, 563, 565 V. Johnson 165 V. Nichols 752 V. "Whiting 394 V. "Williams 58, 475 Nicholson v. Halsey 604 V. Munigle 389, 648 V. Tanham 484 Nickerson v. Brackett 222 Nicol V. N. Y. & E. R. R. 276 Nield V. Smith 619 Niles V. Sawtell 667 Nimmo v. Commonwealth 434 Nims V. Sherman 705 Nind V. Marshall 246, 255 Nindle v. State Bk. 81 INDEX TO OASES CITED. Ixxxiii Nixon, £x parte V. Hadley Koble V. Ring V. Warren Nobles V. Bates 457 107 305, 306, 315 313 417 N. O. Carrolton Co. v. Winthrop 309 Noe i>. Gibson 594 Noel 0. McCrory 22, 525, 532 Noke V. Awder 92, 261, 262, 266, 445 Noke's Case 305 Nokes V. Gibben 415, 496 Norcross v. Thorns 201 Norman v. Foster 312 V. Wells 261, 262, 437, 441, 443, 444 Norris V. Baker 204 V. Harrison 890 ». Ins. Co. ofN. A. 676 u. Litchfield 194 V. Tharp 374 North V. Nichols 640 i>. StrafEord 656, 657 North Cent. R. R. v. Canton Co. 552 North Penn. R. R. v. Behman 186 Northrop v. Wright 85 Northrnp v. Northrup 276 Northiimberland v. Erringtori 264, 668 Northwestern R. R. v. McMichael 96 Norton v. Babcock 322 V. Frecker 660 V. Herron 140 V. Sheldon 299 V. Vultee 437, 461, 619 V. Wiswall 175 Norway v. Rowe 696 Norwich v. New Berlin 267 Norwood V. Kirby 705 Nowell V. Wentworth 297 Noyes v. Morris 199 Nunn V. Fabian 49 O. Oakapple v. Copous 475, 478 Oakes v. Munroe 705, 728 a Oakley v. Monck 487, 525 V. Schoonmaker 24, 713, 720 Oastler v. Henderson 309, 380, 514, 515, 647 Oates V. Frithe 155 O'Bannon v. Robert 390 Oberbaugh v. Patrie 404 Obermyer v. Nichols 391 O'Brien v. Ball 519 V. Brietenbach 521 tJi Capwell 175 a, 382 V. Grierson 153 V. R. R. Co. 198 O'Connor v. Daily 307 V. Kelly 442, 498, 494 V. Memphis 304 V. Spaight 495, 658 Odell V. Buck 98 Odell V. Durant 73 V. Solomon 175, 178 t». Wake 428, 450, 452 Odiorne v. Maxcy 121 O'Donnell v. Seybert 583, 731 Oettinger v. Levy 330 O'Fallon v. Daggett 215 Offiitt V. Trail 566 Ogden V. Jennings 161 V. Jones 188 V. Rowe 424 6, 514 Ogilvie V. Hull ' 309, 316, 381 Ognel's Case 619 O'HaUoran v. Fitzgerald 705 O'Hara v. Jones 565 O'Heriihy v. Hedges 46, 337 O'Keefe v. Kennedy 412 Oland V. Burdwick 535, 536 Oland's Case 535 Olcott V. Frazer 598 Oldershaw v. Holt 415 O'Leary v. Delaney 28 Olinger v. Shepherd 789 Oliver v. Houdlet 95 Ollendorff t>. Cooke 14, 176 O'Mahoney v. Dickson 495 Ombony v. Jones 174, 545, 548, 553 O'Neill V. Cahill 486 Onslow V. Corrie 371, 449, 452, 454, 457 V. 422, 691 Ontario Bank v. Lightbody 394 Opera House Ass'n. v. Bert 787 Opperraan v. Smith 576 Orcutt V. Moore 24 Ordway v. Remington 78 Orgill V. Kemshead 436, 680 Orleans Theat. Ins. Co. v. LaSer- anderie 14 Orme v. Broughton 459 Ormond v. Anderson 46 Orne, In re, 507 Orphan Asyl. Soc. v. Waterbury 160 O'Rourke v. Percival 47, 48 Orr V. Hodgson 143 Osbom V. U. S. Bank 127 V. Wise 162 Osborne v. Humphrey 14 Osgood V. Dewey 25, 686, 654 Osmond v. Fitzroy 98 Ostrander v. Livingston 335 o Oswald V. Gilfert 398 Otis, Matter of 97 Otis V. McMillan 502, 708 V. Sill 114, 149 V. Thompson 24 Ottawa Gas Co. v. Thompson 201 Otto V. Grice 173 Outerbridge v. Phillips 161 Overdeer v. Lewis 532 Overton v. Williston 549, 551 Oves V. Ogelsby 649 Owen V. Aprice 660 V. Davies 97 V. Field 237 Ixxxiy INDEX TO CASES CITED. Owen V. Huds. Riv. K. E. 199 V. Hyde 853 Owens V. Connor 558, 564 V. Lewis 287 a V. Wright 304 Owings V. Emery 346 V. Jones 175 Oxford V. Ford 19 V. Richardson 695 Oxford Bank v. Haynes 424 6 Oxford, Chancellor of, Case of 126 Oxley V. Cowperthwaite 740 V. James 55, 58 111, 467 V. Watts 613, 776 P. Packer v. Gibbins 645 Packington's Case 355, 697 Padelford v. Padelford 351 Page V. Chuck 756 V. De Puy 582 V. Earner 744, 763 V. Esty 833 334, 440 V. Hayward 291 V. Kinsman 89, 706 V. Wright 113 Page's Case 143 Paige V. Parr 810 Paine v. Hotel Co. 583 V. Trinity Ch. 724 Palethorp v. Bergner 276, 415 Palmer v. Bowker 708 V. Edwards 109 426, 560 V. Eort Plain & C. Co 246, 247 V. Mulligan 205, 225 V. Power 397 V. Sawyer 114 V. Silverthorn 184 V. Stebbins 417 V. Sterner 133 V. Wetmore 380 V. Whettenhal 659 Pamer v. Stabick 734 Pangburn v. Patridge 739 Panton v. Holland 200, 231 V. James 22 Paradine v. Jane 267, 364 372, 376 Paramore v. Johnson 653 Paramour v. Yardley 134 Pargeter v. Harris 261 Parish v. Sleeman 397, 398 Parker v. Constable 55 V. Cutler Man. Co. 222 V. Eoote 204, 289, 243 V. Gravenor 249, 250 V. Griswold 174 V. Nightingale 418 V. Parmele 265, 270, 683 V. Plummer 161 V. Smith 206 V. Staniland 775 V. Starkweather 587 Parker v. Tainter 28 V. Taswell 32 Parkins v. Coxe 353 Parks V. Boston 519 Parmelee v. Oswego & Sy. R.E . 62,265, 276, 492 Parmenter v. Webber 16, 109, 560, 567 Parnaby v. Lancaster Coal Co 197 Parrey v. Duncan 576 Parrott v. Barnes 58 V. Barney 343 349, 686 Parry v. House 758 Parsell v. Stryker 73 Parsons v. Chamberlin 77 V. Hind 544, 547 V. Miller 238, 276 Partenheimer v. Van Order, 186 Partridge v. Gilbert 189, 233 V. Scott 234 V. Sowerby 321 Pasteur v. Jones 348 Patrick v. Littell 14 Patten v. Deshon 16, 92, 261, 426, 439, 440 452, 620, 621 V. Smith 685 Patters v. Ackerson 628 Patterson v. Adams 789 V. Boston 519 V. Brewster 114 V. Hansel 705 V. Hubbard 60 V. Stoddard 70 Pattison r. Adams 749 V. Hull 44, 161 Patton V. Bond 489 V. Garrett 421 Patty V. Bogle 588 Paul V. Chickering 399 V. Nurse 410, 413, 452, 680 V. Vannie 502 Paull V. Simpson 406, 434 Pausch i;. Guerrard 776 Pavey v. Burch 248 Payn v. Beal 447 Payne v. Burridge 397, 398 V. Haine 262, 358 V. Rogers 175, 178, 182, 778, 784 V. Vandever 439 Peabody v. Fenton 428 Peacock v, Purvis 604 Pearce v. Cheslyn 39 v. Colden 335 V. Ferris 702 V. Humphreys 740 Peareson v. Dansby 773 Pearpoint v. Graham 79 PearsaU v. Post 215, 218 Pearse v. Boulter 480 Pearson v. Herr 792 V. Knapp 47 Pease v. Christ 313 V. Simpson 739 Peck V. Brighton Co. 49 V. Critchlow 658 INDEX TO CASES CITED. Ixxxv Peck V. Gurney 610 V. Hiler 381, 723 V. IngersoU 890, 653 V. Knickerbocker Ice Co. 377 V. Knox . 551 V. Ledwidge 372, 375 V. Sherwood 318 a V. Ward 104 Peckham v. Leary 442, 636 V. Henderson 201 b, 208 Pegler v. White 48 Pegues V. Mosby 265 Pellew V. Wonford 78 Pells V. Brown 291 Pember v. Mathers 448 Pemberton v. King 546, 549, 551 V. Van Rensselaer 891, 574 Pemble v. Clifeord 743 Pendergast v. Young 176 Pendleton v. Dyett 381 Pendred v. Griffith 337 Penley v. Watts 110, 174, 368 Penn r. Divellin 698 V. Glover 313, 627 ». Preston 246 Pennant's Case 492, 497 Pennell v. Woodburn 368 Penniall v. Harborne 401 Penniman v. Hartshorn 36 V. N. Y. Balance Co. 209 Pennington v. Morse 65 Pennock v. Lyons 286 Pennsylvania v. Leach 789 V. Lemmon 789 V. Robison 787 V. Waddle 789 Pennsylvania R. R. v. Kerr 196 V. Sly 126 Penoyer v. Brown 273, 720 Penrhyn «. Hughes 318 a Penruddock's Case 200, 211, 778 Penry v. Brown 547 Penton i;. Bobart 536, 545, 546, 547, 548, 551, 769, 770 Pentz V. MtwB, F. I. Co. 181 V. Kuester 708 People V. Alberty 345 V. Alden 721 a V. Angel 705 V. Annis 24 V. Anthony 794 V. Assessors 126, 548 V. Botsford 57 V. Canal App. 229 V. C. & N. W. R. R. 261 V. Coles 723 V. Cunningham 202 V. Darling 475 V. Davison 353 V. Dudley 493, 504 V. Fields 789, 790 0. Fulton 788 V. Gedney 378 V. Gillis 40, 42, 53 People V. Godfrey V. Hamilton 0. Haskins V. Hickox ti. Hovey V. Howatt V. IngersoU u. Kelsey 2 I'. Leonard V. Loomis V. McAdam V. Manning V. Mathews V. Mayor V. McCarty V. Nelson V. New York, C. P. i>. N. Y. Centr. R. R. V. Niagara, C. P. V. Paulding V. Piatt 792 723 370 793 720 720 135 ), 41, 717, 724 • 790, 791 369 136, 717 281 721,721a 77,85 521 319, 792, 794 761 79 762 22 221, 721 o V. Reed 789, 790, 791 «. Rickert 56, 787, 792, 794 V. Robertson 16, 78 V. Robinson 403 V. Rankle 149, 788, 790, 794 V. Sands 201 V. Sargent 204 V. Schackno 471, 477 V. Seymour 229 V. Shaw 789 V. Simpson 720, 721 a, 724 V. Smith 787, 793 V. Stnrtevant 793 V. Swayze 718 V. Tibbetts 221, 229 V. Utica Ins. Co. 126 V. Van Nostrand 789, 790, 792, 794 V. Westervelt 176 V. Willis 724 V. Wilson 793 People's Bank v. Mitchell 276, 497 People's Ice Co. v. St'r Excelsior 224 Peoria v. Simpson 175 Pepper v. Rowley 377 Peralta v. Ginocchio 707 Percy's Case 157 Perkin v. Proctor 782 Perkins v. Goodman 424 a V. Lyman 673 V. Perkins 186 a V. Towle 717 Perley v. Chandler 213 ». Foster 749 Perminter v. McDaniel 146 Perreau v. Bevan 729, 740, 743 Perrett v. Duprd 328, 383, 391 Perrin v. Lepper 441, 442 Perrine v. Cheeseman 166 Perring v. Brooke 38 Perrott v. Perrott 694 Perry v. Aldrich 389 V. Bowen ^38 V. Carr 641 Ixxxvi IKDEX TO CASES CITED. Perry v. Chandler 424 V. Davis 498, 500 V. Price 166 <;. Wall 377 Peter v. Kendall 515, 516 Peters v. Barnes 509 K. Fisher 512,728 a V. McKeon 317 V. Newkirk 565, 573, 598, 732 Petersen t>. Edmonson 174, 330 V. Kier 17 Peterson v. Smart 175 a Petrie v. Bury 259, 664 V. Daniel 543 Petsch V. Biggs 477 Petterson v. Sweet 707 Petty V. Miller 471 Pevey v. Skinner 161, 237 a Peyton v. Stith 522 V. Mayor 188, 231 Pfaff u. Golden 439 Pfund V. Herlinger 381 Phaelon v. McBride 588 Phelps V. Baldwin 790 V. Chesson 492 V. Decker 266 V. Sawyer 310 Phenix v. Gom'rs of Emigration 173 Philadelphia Lib. Co. «. Beaumont 74 Philadelphia R. R. v. Kerr 192 Philadelphia & E. R. R. u. Cata- wissa R. R. 403 Phillips V. Bacon 604 t). Berryman 731 ». Bridge 493 V. Covert 58, 62 V. Doelittle 495 V. Douglass 424 a V. Green 93 V. Hartley 40 V. Mosely 23 V. Pearce 708 V. Price 744 V. Randall 502 V. Rothwell 705 V. Stevens 357, 364, 375 V. Sun Dye Co. 376 V. Thomson 31 Philpot V. Hoare 408, 437 Philpott V. Pobbinson 756 Phipps V. Ingraham 30 Phyfe V. Eimer 376 V. Warden 336 Pickard v. CoUins 175, 178, 204 V. Perley 479 Pickering v. Busk 138 V. Vowles 336 Pier V. Carr 309, 380, 514, 515 Pierce v. Brown 708 V. Dart 201, 209, 211 V. FuUer 417 V. Mintum 160, 264 V. Musson 232 V. Pierce 636 Pierce v. Van Dyke 739, 762 Pierrepont v. Barnard 189, 237 a Pierse v. Sharr 111 Piggot V. Mason 16, 262, 332, 337, 383 Piggott V. Brittles 597 V. Stratton 111 Pigott's Case 165 Pike V. Butler 335 V. Eyre 68, 90, 111 V. Thomas 417 V. Witt 787 Pilcher v. Hart 209 Pilkington v. Peach 143 V. Shaller 365 Pilkington's Case 566 Pilling V. Armitage 113, 335 Pillow V. Love 545 V. Roberts 166 Pillsworth V. Hopton 696 Pilshury v. Mitchell 263 Pilton, Ex parte 715 Pim V. Greville 757 Pindar v. Ainsley 373 V. Rutter 329 Pine V. Leicester 625 Pinero v. Judson 19, 41 Pinhorn v. Souster 54 Pitcher v. Tovey 371, 449, 453, 620, 680 Pitkins V. Fletcher 424 a Pitt V. Russell 624 V. Shew 610 V. Smith 100 V. Snowden 670 Pittsburg, C. & St. L. R. R. v. Thornburg 636 Pixley V. Clark 226 Pizey V. Rogers 328, 367 Plant V. L. I. R. R. 201 Flasket v. Beeby 462 Piatt V. Johnson 224 Playter«. Cunningham 313 Pleasant v. Benson 58, 111, 481 Pleasonton's Appeal 55, 424 b Pledall V. Knap 609 Plimpton V. Curtis 30 Ploen V. Staff 330 Pluck V. Digges 16, 426 Pluckett V. Reed 424 a Plumb V. Cattaraugus Ins. Co. 92 Plumer v. Harper 175 r. Plumer 705 Plummer v. Keppler 47 V. Russell 137 Plymouth v. Carver 261, 437 V. Thrograorton 389 Poer V. Peebles 559, 576 Polack V. Pioche 360 V. Shafer 66, 289 Polhemus v. Trainer 122, 456 Pollard V. Barnes 239 Pollen V. Brewer 531 PoUitt V. Long 225 Pollman v. Morgester 626 INDEX TO CASES CITED. Ixxsvii Pollock V. Bentley 89 V. Kittrell 59 V. Stacy 16, 639 Pomfret v. Ricroft 175 a, 214, 315, 828, 771, 774 Pond V. Holbrook 489, 514 Poole V. Bentley 41 V. Errington 27 V. Longuevill 597, 762 V. Warren 527 Poole's Case 545, 547 Pope V. Biggs 120, 121, 649, 681 V. Devereux 239 V. Haskins 708 V. Heeny 336 a V. TiUman 752 Pordage v. Cole 246, 250 Porry v. Allen 149, 610 Port V. Jackson 436, 448, 449, 682 Porter v. Bleiler 56 V. Cole 171 V. Drew 110 V. Hubbard 64, 636 V. Merrill 66, 412, 492 V. Noyes 824, 609 V. People 724 V. Shephard 82, 276 V. Spencer 658 V. Stewart 269 V. -WilUams 136 Portman v. Home Hospit. Ass'n 419 Portmore v. Bunn 384, 445 Post V. Kearney 262, 398, 399, 426 V. KimbeHey 658 V. Post 471 V. Vetter 328 Postman v. Harrell 577 Postmaster-Gen. v. CocHran 676 Poston V. Jones 377, 627 Potter V. Bacon 674 V. Hall 558, 588 V. Mercer 237 V. North 753, 754. 755 V. Taylor 820 V. Truitt 383 V. White 189 Potta V. Del. W. Pow. Co. 437 Foulteney v. Holmes 16 Powell V. Bagg 237 V. Burroughs 419 V. Clark 163, 250 „. Dillon 85 V. Hinsdale 762 V. King 494 Powers V. Harlow 214 V. Russell 168 V. Shepard 267 V. Sutherland 717, 787 V. Ware 276, 661 Fowls V. Smith 23, 115 Powley V. Walker 252, 344, 356, 421 Pratt V. Adams 267 V. Brett 422, 691, 693 V. Farrar 62, 466, 532 Pratt V. Richards Jewelry Co. 516 Pray v. Clark 333 V. North 398 Preece v. Corrie 16, 560, 6R7 Prentice v. Aohorn 100 V. Elliott 649, 653 Prentiss v. Warne 516 Presoott V. -De Forest 16, 560, 663 V. Elm 476, 477 V. Kyle 471, 521, 728 a V. Otterstatter 762 V. Trueman 318, 322 V. White 214 a V. Williams 214 a Presstman v. Silljacks 708 Preston ». Briggs ' 551 V. Kehoe 790 V. Merceau 891 Pretty v. Bickmore 175, 328 Prettyman v. Unland 559 0. Walston 818 a, 811, 437 Prevost V. Lawrence 90, 104, 107 Prewett ti. Dobbs 588 Prewitt V. Burnett 789 Prial ■». Entwiatle 56 Price V. Helyar 767 V. Limehouse 564 V. McAllister 683 V. Pickett 537 V. Pierce 84 V. Smith 121 V. Williams 37 V. Worwood 497, 499 Prichard v. Atkinson 321 Prickett v. Ritter 62 Priest V. Nichols 176 a Prince v. Case 237 a Prindle v. Anderson 485, 718, 721 a Printems v. Hel&ied 565 Prior V. Kiso 304 Pritchard v. Atkinson 239 V. Ovey 332 Proctor V. Harris 198 V. Keith 875, 493 Propert v. Parker 45 Propr's V. Call 773 V. McFarland 60 Proud V. HolUs 174 Prouty V. Prouty 467, 475, 720, 721 a Providence Christ. Un. v. Eliot 39 Providence Co. Sav. Bk. v. Phalen 488 Provost V. Calder 437 Provost, &c. V. Abercrombie 14 Pngh V. Arton 651 V. Duke of Leeds 78 Pugsley V. Aikin 459, 467 Pulbrook V. Lawes 28 Pullen V. Boney 786, 787 V. Palmer 569, 760 V. Ready 282 Pulteney v. Shelton 691 V. Warren 712 Purcell V. English 175 a Purdy V. Huntington 504 Ixxxviii INDEX TO CASES CITED. Purfel V. Sands 576 Rawson v. Copland 245 Purple V. Purple 742 V. Eicke 639 Purrington i: Loring 613 Rawstorne v. Bentley 339 Putnam v. Banker 237 Ray V. Ayers 173 V. Bond 160 Raybourn v. Ramsdell 637 V. Payne 195 Raymar v. Clarkson 35 V. Putnam 114 Raymond v. Bearnard 391, 634 j;. Ritchie 136, 189, 537 V, Kerker 439 V. Wise 24, 114 V. Thomas 391 V. Wyley 18, 769 V. White 545 Pyle V. Pennock 544 Rayner v. Stone 422 Pym V. Blackburn 357, 364 Raynor v. Wilson 511 Pynohon v. Stearns 353 Rea V. Burt 587 Pyne v. Dor 355 Reab v. McAlister 374, 630 Pyot V. St. John 358, 547 Read v. Brookman 670 V. Burley 687, 589, 597 V. Erington 488 Q- V. Tuttle 492 Reade v. Johnson 635 Quackenboss v. Clarke 448, 450, 684 Reading w. Menham 539 V. Lansing 160, 246, 264 Readman v. Conway 175 Queen v. St. Geo. Union 66 Ready v. The Mayor 126 V. St. Mary Warwick 477 Ream v. Harnish 24 Queen's College v. Halletl 173, 345, Reavis v. Barnes 424 a 678, 688 Reay v. Cotter 720 Quincy v. Carpenter 400 Reckhow v. Schanck 62 V. HaU 758 Rector of Chedington's Case 75 Rede v. Farr 492 Redfield v. Utlca & Sy. R. R. 19,84,636 R Redmon v. Bedford 24 Redpath v. Roberts 473, 647 Raband v. Frank 315 Redshaw v. Bedford Level 338 Radcliffu. Mayor 230, 231 Redwine v. Brown 263 Radway v. Briggs 175, 193 Reed v. Bank of Newburgh 393 Ragland v. Justices 122 V. Bartlett 121 Ragsdale v. Estis 16 V. Darrow 577 Raikes t>. Townsend 209, 209 a V. Deere 170 Railsback v. Walker 28,56 V. Harrison 776 Raine v. Alderson 769, 780 V. Holland 789 Rains v. Oshkosh 728 a V. Tiandon 60 Ramsdell v. Maxwell 708 V. Latson 503 Rand v. Rand 78 V. Lewis 70, 418 Randall v. Alburtis 381 V. Reed 62, 466 V. Chubb 24 V. Shepley 705 V. Lynch 246 V. St. John 339 ». Rich 515 V. Thoyts 780 V Rigby 261, 619 V. Ward 385 V. Russell 262 Reeder v. Ball 25, 720 V. Sweet 96 V. Purdy 532 Randel v. Ches. & Del. Canal Co. 245, V. Sayre 480 246, 674 Rees V. Emerick 772 Randleson v. Murray 192 V. King 299, 622 Randolph v. Coulton 708 V. Lawless 787 Rank v. Rank 541 V. Ld. Dacre 332 Rapalye v. Rapalye 389 V. Overbaugh 165, 270 Rapp V. Palmer 540 Reese v. Cochran 104 Ratcliffe v. Burton 578 Reeve v. Bird 516, 647 Rathbone v. M'Connell 237 a Reeves v. McKenzie 558 561, 583 V. Warren 4244,656 V. Slater 767 Rathbun v. Payne 199 Regina v. Bucknall 178 V. Rathbun 168 V. Chawton 82 Rawlins v. Turner 30 V. Hockworthy 34 V. Vandyke 105 V. Leigh 347 Rawlyn's Case 87,89 u. Middlesex 79 INDEX TO CASES CITED. Ixxxix Regina v. Watts 175, 178 Kegnart v. Porter 661 Keiuhenbauher v. Fahmeyer 1 75 Beid t>. Briuson 579 a V. Parsons 466, 492 V. Tenterden 460 Reiff w. Reiff 534 Reineman v. Blair 880 Reinliard v. Mayor 175 Reinicker v. Smith 100 Reithman v. Brandenburg 66, 525 Relph V. Gist 166 Remington v. Casey 26, 175 a Remnant v. Bremridge 459, 643 Remsen v. Conklin 493 Renard v. Sampson 44 Rennie i'. Robinson 92, 441, 639, 654, 707 Renoud v. Daskam 332, 339 Renwick v. Morris 201 V. Renwick 835 Resick v. Eern , 237 a RespubUca v. Caldwell 201 a V. Devore 787, 790 V. Shryber 792 V. Sparhawk 181 Rerett «. Brown 773 Rex V. Adderly 79 V. Carlisle 201 6 V. Comm'rs 197 V. Cotton 598 V. Cross 178, 201 a V. Harris 794 V. Herstmonceaux 477 I!. Huggins 195 V. Inhabs. of Stone 470 V. Jones 201 b V. Lewis 740, 741 ». Lloyd 794 V. Londonthorpe 547 V. Neil 201 V. Nichols 794 V. Otley 545, 547 V. Rosewell 209 a V. Smith 523 V. Smyth 787 V. St. Dunstan 547 V. St. Luke's Hosp. 179 V. Storr 787 V. Taylor 201 V. Tippett 229 V. Topping 554 V. Uns worth 66 V. Watson 764 V. Webb 201 6 V. Whitstable Fishermen 658 V. Wilson 764, 787, 790, 794 Reynolds v. Buckle 627 V. Clarke 173, 783, 784 V. Comm'rs 126 V. Ellis 424 a V. Pitt 496 V. Sliuler 545, 677, 592, 612, 750 V. Swain 576 V. Thorpe 755 Rhea v. Renner 106 Rhee v. Forsyth 209 Rhodes v. BuUard 815 Rice V. Adams 549 V. Dudley 613 Rich V. Basterfleld 175 V. Bolton 21, 65, 60, 62 B. Frank 620, 626 V. Hotchkiss 249 V. Keyser 476, 532 V. Smith 876 Richard Le Taverner's Case 372, 388 Richards v. Acton 740, 763 V. Harvey 706 V. Killara 663 V. McGrath 729, 735 Richardson v. Blakemore 424 a V. Boright 94 V. Evans 286 V. GifEord 859 .,. Hall 641 V. Langridge 22, 56, 60, 524 V. McDougal 186 a, 367 V. Petersen 424 a V. Pond 239 V. Scott 439 t). Sydenham 332, 333, 338 V. "Thornton 25 V. Vice 559 Richart w. Scott 233 Richmond v. Butcher 156 1). Stable 713 Richmond T. Co. v. Rogers 636 Bichm. Man. Co. v. Atlantic D. Co. 224 Rickert v. Snyder 674, 678 Bickett ». TuUick 67, 649 Bicketts v. E. & W. Ind. Docks Co. 187 V. Lostetter 317 V. Richardson 423 V. Salwey 220 Riddle v. Littlefleld 161, 237 a V. Welden 583, 595, 729 Bider v. Smith 178 Bidge V. Wilson 558 Biggs V. Pinsell 408 V. Bussell 406 Bight V. Bawden 23, 471 V. Beard 25, 63, 466, 471, 702 V. Cuthell 479 V. Darby 22, 56, 475 V. Proctor 26, 159 V. Thomas 159 Biley v. Jordan 26 V. Sexton 455 Rinehart v. Olwine 24 Ripley v. Cross 269, 705 V. Wightman 372 V. Yale 25 Rising V. Stannard 62, 63, 65, 475, 626 Ritchie v. Glover 705, 707 Bitzler v. Baether 108, 111 Biviere v. Bower 161 Eoach V. Cosine 25, 719, 720, 723, 724, 728 xc INDEX TO CASES CITED. Boach V. Wadham 261, 429 Bogers v. Smith 175 Boads V. Trumpington 66 V. 'Snow 492 Boat V. Puff 163 V. Tracy 635 Bobb's Appeal 390 V. Wiggs 25 Bobbins v. Joues 175 a Bohrburg v. Beed 114 V. Mount 175 a, 302 Boles i;. Bosewell 673 Boberts v. Barker 420, 539, 540 BoUe V. Harris 496 V. Dauphin Bank 549 V. Peterson 673,691 V. Davey 492 Bollin V. Pickett 70 V. Geis 405, 492 Bollins V. Moody 647 V. Jackson 168, 502 V. Proctor 424 a, 518 V. Snell 385 V. Eiley 288 V. Termell 561 Bolls V. Miller 419 V. Wliite 188 V. Bock 771 V. Wiggin 93,95 Bonaldson v. Tabor 705 Bobertson v. George 173 Bood V. N. y. & E. E. E. Co. 161 V. St. John 332, 335, 388 Boof V. Stafford 93 Bobeson v. Pittenger 209, 239 Book V. Warth 196, 349 Bobie V. Smith 62 Books V. Moore 17 Bobins v. Cox 621 Eoosevelt v. Hopkins 405 Bobinson v. Baugh 204 V. Hungate 471 V. Deering 389, 648 Boot V. Stnyvesant 112 V. Hofiman 116, 569 Eoper V. Bumford 630 V. Kettletas 335 V. Williams 415 V. Lehman 109, 424 a Bose V. Davis 705 V. Litton 694 Eosenbaum v. Gunter 382, 424 6 V. Mead 751 Bosenberg v. Shaper 424 a V. Morgan 713 Eosenthal v. Freeburger 33 V. Wheeler 173, 686 Bosewell v. Prior 176 Bobson V. Plight 93 Boss V. Bedell 166 Bockwell V. Bradley 121, 474 V. Butler 201 V. Luck 527 V. Dysart 252, 254 Bodgers v. Palmer 728 a V. Pedden 175 a, 178 Boe V. Archbp. of Tork 150, 167, 511, V. Gill 135 512, 513 V. Eernan 728 V. Conway 34 V. Overton 357,364 V. Davis 706 V. Sadgbeer 417 V. Galliers 280, 409 V. Swaringem 24 V. Harrison 110, 286, 403, 406, Eoswill's Case 694 410, 412, 497 Botch V. Miles 105 V. Hayley 262, 445 Both V. Miller 676 T. Hodgson 133 Eothschild v. Williamson 57 V. Lees 55 Botherey v. Wood 604 V. Lowe 118 Botzler v. Botzler 424 a V. Paine 362, 497 Eoulston V. Clark 194, 765 V. Pierce 480, 482 Boumage v. Blatrier 182 V. Pogson 318 a Boush V. Emerick 391 V. Prideaux 83 138, 471, 705 Eowan v. Kelsey 699 V. Sales 403, 405 V. Lytle 22, 64, 65, 468, 487, 509, V. Street 484, 702 511, 718, 723 V. Summerset 133 V. Eiley 390 V. Ward 58, 464 V. Woodward 264 V. Wiggs 481, 711 Bowbotham v. Pearce 381 Boffey V. Henderson 549, 551 0. Wilson 283 Bogers'u. Arnold 739, 754, 759 Bowe V. Huntington 113 V. Birkmire 574 V. Williams 391 V. Boynton 705 Bowel V. Walley 318 V. Dock Co. 77, 475 Eowell V. Klein 535 V. Humphreys 119 120, 567, 571 Eowland v. Pendleton 636 V, Jones 221, 222 V. Eowland 773 V. Lynde 718, 721 a Boyal Bk. v. Gr. June. E. E. 166 V. Ostrom 381 Boyce v. Bradburu 728 o V. Pitcher 707, 716, 759 V. Guggenheim 316, 377, 878, 881 V. Sawin 239 Eoyer v. Ake 261, 566 INDEX TO CASES CITED. XCl Eoyston v. Cordrye Eubery v. Jervoise V. Stevens Rubicum v. Williams Buckman v. Astor Rugge V. Ellis Ruggles V. Holden V. Lawson Runnels v. Bullen Rushden's Case Russell V. Allard V. Allen V. Baber V. DeGrand V. Desplous V. Doty V. Erwin II. Fabyan V. Gulwel V. Irwin V. Jackson V. Mayor V. Men of Devon V. Popham V. Scott V. Shenton Russell V. Tomlinson Russum I). Wanser Rust V. Low Rutgers v. Hunter Rutland F. & M. Shop Co, Ryal V. Rich Ryan v. Clark r. Fowler V. N. Y. Cent. R. R. 17. Roch. & S. R. R. V. Wilson Ryder v. Jenny V. Mansell V. Robinson V. Townsend Ryerson v. Eldred V. Quackenbush 369, Ryerss v. Farwell Rylands v. Fletcher S. Sacheverell v. Frogate Sackett v. Barnum Sackrider v. Beers V. McDonald Saffyn's Case Sage V. Sherman Saint V. Pilley 626 246 451, 461 725 442 698 424 6 169 225 885, 620 708 119, 124 415 621 789 673, 601 25, 705 22, 522 158, 240 90, 705 214 181 182 201 164 175, 178, 783 186 120 183, 184, 185 332, 333, 335 I. V. King 382 528, 630 15 193 196 187 175 332, 3.34 708 339 393 705 385, 426, 447 705, 708 226 Salem Presb. Cong. v. Williams Salisbury v. Hale V. Marshall Salop V. Crompton Salman v. Bradshaw Salmon v. Matthews V. Smith Salter v. Codbold 156 600 205, 224 613 15, 176 114 551, 552 297 525 382 367, 688 315, 674 17, 653 310, 377, 378, 451 626 Saltonstall t>. Banker 176 V. White 716 Saltoun V. Houston 661 Saltpetre Case 181 Salvin v. N. Brancepeth Coal Co. 204 Sampson v. Burnside 31 V. Easterby 249, 437 V. Henry 523, 532 V. Rose 536 Samuel V. Scott 139,328 Samuelsonv. Cleveland Iron M.Co. 176 Samways v. Eldsley 250 Sanborn v. Covington Co. 227 Sand V. Eingscote 162 Sanders v. Ellison 636 V. Norwood 157 V. Partridge 427 V. Pope 496 Sanderson v. Baker 767 V. Harrison 380 V. Mayor of Berwick 306, 309 V. Price 121 Sandhill v. Franklin 69, 477 Sands v. Lyon 78, 79 Saner v. Bilton 330, 346, 349, 376 Sanford v. Harvey 475, 476 V. Johnson 104, 641 V. Pierce 124 Sapsf ord v. Fletcher 182, 395, 630, 653, 681 Saratoga Bk. v. King 267, 417 Sarch v. Blackburn 195 Sargent v. Ballard 237 V. Courrier 24 V. Pray 399 V. Smith 260 Sarles v. Sarles 173, 220, 318 o, 345, 690 Sarsfield v. Healey 60 Satterlee v. Matthewson 708 Saulsbury v. McKeUar 424a Saunders's Case 157, 346, 346 Saunders v. Ellington 534 V. Hayes 50 V. Merryweather 125 V. Moore 629 V. Musgrove 25 V. Smith 209 Saunderson v. Jackson 35 Sauvage v. Dupuis 476 Savage v. Dent 715 Saville v. Saville 818 a Savings Bank v. Getchell 14,19 Savory v. Stocking 457 Sawyer v. Fitts 704 V. Little 103 Saxton V. Bacon 184 a Say V. Stoddard 60 Scaltock V. Heuston 439, 442 Scarlet v. Lamarque 787 Schack V. Anthony 663 Schaefee v. Henkel 139 Schaife v. Stovall 424 a Scheerer v. Dickson 175 o xcn INDEX TO CASES CITED. Scheever v. Stanley 435 Selden v. Pringle 265 Scheldt V. Belz 442 Sells V. Hoare 731 Solienley's Appeal 576 Semayne's Case 578 Schermerhorn v. Buell 173 Seneca E. E. v. Auburn E. E. 764, 767. Bchiefifelin i;. Carpenter 361, 507, 612, 779, 784 513 Senior v. Armytage 538 Schilling v. Holmes 305 Sennett v. Bucher 15 Schlencker v. Moxsy 738 Serres v. Dodd 749 Schmidt v. Livingston 49 Servante v. James 115 Schmitt V. Cassilius 24 Seton V. Slade 32 Schneider v.' Norris 35 Settle V. Henson 728 o Scliott V. Harvey 175 Severn w. Clerk 249 Schroeder v. King 408 Sewall II. Gibbs 540 Scliultz V. Elliott 707 Seward v. Jackson 704 Schuyler v. Hoyle 432 Sexton V. Meet 107 V. Leggett 56, 469, 560, 563, 564 V. Zett 192 V. Smith 22, 525 Seyfert v. Bean 139, 563 V. Trefan 721a V. Beavan 149 Schuylkill Co. v. Schmoele 305, 386, Seymour v. Billings 758 519 V. Delancey 49 ScoUy V. Forhes 160 V. McDonald 207 , 212, 418, 419 Score V. Huggett 66 Shadwell v. Hutchinson 17S, 178, 200 Scott V. Depeyster 198 Shahan v. Herzberg 509 V. Eritz 118, 374 Shall V. Banks 328 V. Godwin 664 Shannon v. Bradstreet 38 V. Hawsman 655 V. Burr 174, 528 V. Hull 684 Shapcott V. Mugford 784 V. Levy 705 Shapira v. Barney 549 i;. Lunt 261 Sharp V. Fields 686 V. Pound 424 a V. Key 447 V. Ramsey 24 V. Kinsman 535 u. Simons 175, 175 a, 381 V. Milligan 45 "• S'^^"' 277 V. Sharp 85 V. Waithman 741 V. Speir 341, 398 V. Wilson 221 Sharpe v. Kelley 472, 705 Soovel V. Cabell 281 Shattuck V. Lovejoy 403, 448 Seranton v. Booth 152 Shaw V. Bowman 538 Scribner v. Holmes 321 V. Clements 163 Scruggs V. Gibson 563 V. Coffin 278 Scrugham v. Wood 168 V. Cummiskey 174 Scudder v. Paulding 375 V. Farnsworth 26, 41, 108 Sea Ins. Co. v. Stebbins 123 V. Gordon 728 a Seabourne v. Powell 824, 685 V. Hoffman 76, 317, 471, 787 Seabrook v. Moyer 378 u. Hurd 269 Seaman v. Aschermann 49 V. McCarty 521, 728 a V. Hogeboom 164 V, Oakley 502 V. Ward 641 V, Partridge 436 Sear v. House, &c. Soo. 407 V. Wallace 161 Sears v. Brink 424 a Shawmut Bk. v. Boston 520 V. Dewing 894 Shearman v. Irvine's Lessee 698 V. Smith 525 Shears v. Wood 224 V. Trowbridge 444 Sheary v. Adams 375 Seaver v. Cobum 411 Shee V. Gray 429 V. Dingley 739, 748 V. Hale 408 V. Phelps 97 Sheen v. Eickie 544 Second Cong. Soc. o. Providence 397 | Sheets v. Selden's Lessee 77,78 Secor V. Pestana 468 Shelby v. Hearne 262, 263, 445 Seddon v. Senate 248, 313 Sheldon v. Edwards 504 Sedgwick v. HoUenback 308 V. Sherman 226 Seeger v. Pettit 544 V. Skinner 392 Seers v. Hind 286, 408 Shelton v. Carroll 707 Seitzinger v. Weaver 321 V. Codman 304 Selby V. Nettlefold 214 a V. Doe 705 V. Browne 377 Shenk v. Mundorf 781 INDEX TO CASES CITED. XCIU Shepard v. Merrill V. Spaulding Shepardson v. Elmore Shepherd v. Boyce V. Cummings ti. Hees V. Sliker Sherburne v. Ives Sheredine v. Gaul Sherfey v. Hartley Sheriff v. James Sherman i-. Champl. Transp. Co V. Dutch V. Wilder o. Wilkins V. Wright Sherred v. Cisco Sherry v. Frecking Sherwin v. Lasher Sherwood v. Burr V. Philips V. Scallan V. Seaman Shields v. Lazear V. Purnell Shiflfner v. Gordon Shillingford v. Good fibindelbeck ;;. Moore Shine v. Dillon Shinn v. Holmes Shipley v. Fifty Assoc. V, Ritter Shippey v, Derrison Shipwick V. Blanchard Shopland v. Ryoler Short V. Bridwell V. Kalloway V. Wilson Shotwell, Matter of V. Boehm V. Smith Shreve v. Hankinson Shrewsbury v. Smith V. Shrewsbury Shrunk v. Schuylkill Nav. Co. Shubrick v. Salmond Shufeldt V. Gustia Shult V. Barker Shulter's Case Shunway v. Collins 16, 378, 403 Sicard v. Davis 170 Sickels V. Fort 630 Siefke v. Kook 286 Sigmund v. Howard Bk. of Bait. 304, 312 Sill V. Rood 653 Sills V. Brown 199 Silly V. Dally 755 Silvey u. Sumner 705,708,728 a Simers v. Saltus 121, 877, 708 Simkin v. Ashurst 66, 65 Simmons v. Norton 852 Simmons' Case 794 Simms v. Hervey 149 Simon v. Gross 718 618 16, 551, 552 399 760 30,56 186 721a 25 393 195 731 522 573, 729 521 161, 378 728 188 84,85 14 227 581 175 a 231, 328 120, 524 24, 424 a 521 131 175 438, 620 104 175 a, 226 345 35 776 135, 136, 570 717 368 791, 793 711 123 136 226 318 223 256 424 6 354 Simonds v. Turner Simons v. Farren Simonton's Estate Simpkins v. Rogers Simpson v. Ammous V. Clayton 17. Gutteridge V. Hartopp V. Margitson V. Rhinelander V. Titterell V. Wood Sims V. Hampton V. Humphrey Sinclair v. Jackson Singer Mf'g Co. v. Sayre Singleton v. Bremar V. Finley Sinton v. Butler Six Carpenters' Case Skaggs V. Ekers V. Emerson Skaife v. Jackson Skally V. Shute Skerry v. Preston Sketoe v. Ellis Skidmore v. Railway Co. Skilton V. Waterworks Skinner v. Dayton Skull V. Glennister Slack V. Bonsai V. Brown V. Sharpe Slater v. Brady V. Rawson Slator V. Trimble Slingerland v. Morse Slingerly v. Fox Slingsby's Case Slocum V. Branch V. Clark V. Clossen V. Despard Sloman v. Walter Small V. Edrick Smallman v. Agborow V. Onion Smart v. AUegaert V. Morton Smiley v. McLauthlin V. Van Winkle Smith V. Adams V. Agawam Canal Co. V. Albany V. Alt V. Ambler :.-. Atkins V. Benson V. Blaisdell V. Bowin V. Brown V. Bryant V. Burtis V. Bustard 398, 450 418 169 523 121 443, 620 133 687, 596 77 721 o, 723 247, 279 521 78 720,7216,722 a 87, 1.30 56 72 791 175 666, 613, 784 22, 55, 57 315, 378 628 381 565, 581 579 a 87 328 117 161 635 633 457 94 261 93,94 392, 750 374 116, 264, 664 515 441, 568, 577, 611 49 265 673 79 102 179 a 374, 636 236 256, 635 16 227 228 267 22 679 24 648 291 93 335 a 424 a 85 493 XCIV INDEX TO CASES CITED. Smith V. Colson 661 Smith V. Taylor V. Corey 174 ». Turnley V. Crockett 739 V. Twoart V. Crossland 708 V. Walton V. Day 72, 567 V. Wheeler V. Dobson 199 !/. Whitbeck i;. Dodds 459 V. White V. Dodge 163 V. Williamson B. Doe 494 V. Wilson V. Eggington 120, 440, 441 V. Wright V. Emery 664 V. Wunderlich D. Floyd 218 Smiths V. Ambler V. Fyler 562 Smithwick v. Ellison u. Gfoodwin 565, 566, 733 Smyles v. Hastings V. Great E. E. E. Co. 195 Smyth, Ex parte , V. Harrison 438 V. North c;. Hollenbacls 792 V. Tankersly V. Hoag 787 Snedaker v. Powell V. Houston 64, 636 Snedeker v. Quick V. Howell 368 Sneezum, Ex parte V. Kaiser 295 Snelgar v. Henston V. Kerr 259 Snelling v. Stagg V. Kinkaid 382, 636 Snook V. Sutton V. Lancaster 66 Snyder v. Carfrey V. Littlefield 64 468, 718 V. Hersberg V. Lockwood 209 V. Hitt V. Low 93 V. Kunkleman V. Malings 387 V. Middleton 371, V. Mapleback 510 516, 560 V. Vaux 0. Marrable 66, 383 Sohier v. Eldredge V. Marsh 115 Somes V. Skinner V. Martin 175, 783 Somerset v. Fogwell V. McCurdy 705, 707 Somerville v. Stevenson V. McGowan 165 Soprani v. Skurro V. Meanor 564 565, 731 Sorsbie v. Park V. Meyers 791 Souders v. Vansickle !). MiUes 769 Soulsby V. Neving V. MofEat 728 Sourwine v. Truscott V. Newcastle 384 Souter V. Drake V. Niles 423 Southampton ti. Brown V. Niver 512, 515 Southcote V. Hoare V. Norfolk 626 Southgate v. Chaplin V. Ogg Shaw 522 Souverbye v. Arden V. Oliphant 96 Soward v. Leggatt V. Park 133, 551 V. Palmer V. Peat 361 Sparhawk v. Broome V. Pendergast 518 Sparkes v. Bassett V. Pocklington 668 u. Smith V. Post 368 Sparrow v. Bristol V. Pringle 525 V. Hawkes V. Putnam 408, 423 Speckels v. Sax V. Ealeigh 379, 388, 649 Speer v. Skinner V. Eeed 728 Speers v. Flack V. Eice 24 Spies V. Dam V. Eussell 780 Speilmann v. Kliest V. Shepard 124, 180, 391, 571 Spellman v. Bannigan V. Simmons 26 Spencer v. Burton V. Singleton 64, 622 V. Clingfelter V. Smith 198, 393 V. Darlington V. Smeltzer 49 V. Field V. Stagg 360 V. McGowan V. Stewart 471 636, 663 V. Parry V. Stigleman 378 Spencer's Case 17, 18, 252, V. Strong 160, 317 400, 414, 437, 444, 445, 122 563 641 756 615 493 621 749 773 540 317, 773 679 541 239, 240 112 457 24 19 792 457 669 366, 677 135 475, 476 179a 559, 583, 588 665 , 372, 436, 513 748 389 87 778 662 266, 267 264 559, 571 628, 629, 622 44 252, 431 258, 664 264, 664 312 169 359 892 466 330 365 435 473 329, 331 565 524 161 335 328 70, 176, 664 581 408 139, 258 683, 601 342 :, 260, 261, 357, , 625, 661, 667 INDEX TO CASES CITED, XCV Sperry v. Miller 518 Spicer v. Bonker 428 V. Slade 184 Spragg V. Hammond 396 Sprague v. Baker 263, 308, 321 V. Duel 98 V. Quinn 471 V. Stone 25 Spraker v. Cook 720 Springstein v. Schermerliorn 508, 612 Spurck V. Forsyth 790 St. Albans v. Ellis 248 St. And. Ch. App. 262 St. John V. Palmer 308, 809 V. Piggott 647 V. Qiiiltzow 708 St. Louis V. Kaime 175 V. Morton 629 St. Louis, V. & T. H. E. E. v. Wash- burne 183 St. Mary's Church v. Miles 261, 440 St. Saviour v. Smith 449 Stabler v. Cowman 141, 166 Stackberger v. Mosteller 30 Stackhouse v. Halsey 77 Stackpole v. Arnold 580 V. Healy 183, 184, 186 Stacy V. Bostwick 522; 705 Stafford v. Bottorne 325 V. Gardiner 554 V. Ingersol 183, 184, 185 Stagg V. Eur. Co. 705 Staines v. Morris 259, 371, 436. 438, 448, 449 Stamforth v. Fox 39 Stammers v. Dixon 208, 768 Stamper v. Sunderland 66 Stanard v. Eldridge 808, 320, 322 Standen v. Christmas 253, 343, 440 Stanfield t'. Habergham 694 Stanley v. Agnew 343 V. Towgood 358, 359 Stansell v. ToUard 233 Stansfield v. Portsmouth 651, 552, 554 Staple V. Spring 175 Staples V. Anderson 382 V. Heydon 213 Starnes v. Allen 424 a Starr v. Ellis 604 V. Jackson 173, 200 State V. Adams 424 a 0. Armfield 678 V. Bait. E. E. Co. 199 V. Close 227 V. Covenhoven 793 V. Crofton 521 V. Doom 201 V. Haggard 586 V. Haines 201 V. Hayes 104 d. Jewell 24 V. Johnson 787 o. Laval 122 V. Merritt 424 a State V. Martin 437, 455 . Gardner 24 Strathmore v. Bowes 697 Stratton v. Lord 713, 714 V. Staples 175, 175 a Streaper v. Fisher 261, 440 Street v. Tugwell 205 Strickland v. Hudson 19 V. Maxwell 161 Strickler v. Todd 224 Stripling's Case 850 StTohecker v. Grant 664 Strong V. Birchard 77 V. Stebbins 611 Strowd V. Willis 627 Stuart V. Hawley 196 Stubbs V. Parsons 341, 895, 396, 757 Stukeley v. Butler 157 Stultz V. Dickey 538, 768, 771 V. Locke 858 Stumps V. Kelly 195 Sturgeon v. Wingfield 91 Stuyvesant v. Davis 273, 494, 497, 499, 618 V. Dunham 772 Styles V. Wardle 78, 148 SufEern v. Townsend 767 Sullivan v. Bishop 529 V. Carberry 551 V. Enders 54 V. Jones 641 Sumner v. Bromilow 552 V. Conant 104, 105 V. Tileston 227, 237 V. Williams 253 Sunderland v. Newton 696 Sunol V. MoUoy 24 Supervisors v. Herrington 705, 708 Supp V. Keusing 723 Surplice v. Farnsworth 246, 328, 829, 330, 646 Sury V. Brown 156 V. Pigot 217 Sutherland v. Carter 24 V. Goodnow 332, 445 V. Lishnan 259 SutlifE V. Atwood 437 V. Casseleggi 173 Sutphen v. Seebass 882 Sutton V. Clarke 196 V. Cole 126 V. Temple 329, 882 V. Waite 741 Sutton's Case 86 Suydam v. Jackson 876 V. Jones 262 Swain v. Mizner 66, 67 Swaine v. Holman 106 V. Perine 818 Swan V. Stransham 462 V. Clark 28 Swann v. Falmouth 731 V. Shemwell 763 V. Wilson 708 Swart V. Service 86 Swearingen v. Magruder 567 Sweeny v. Garrett 297, 493 Sweeper v. Randal 112 Sweet V. Pym 677 V. Seager 398 Sweetman v. Cash 442 Sweetser v. Eames 848 V. McKenney 81, 332 Sweitzer v. Hummel 326 Swift V. Mosely 17 V. Thompson 644, 646 INDEX TO OASES CITED. XCVll Swinfen v. Bacon Swire V. Leach Swords V. Edgar Sybray v. White Syllivan v. Stradling Sylvester v. Balston Sym's Case Symcock v. Nayn Syme v. Saunders Symms v. Smith Syms V. Mayor Symonds v. Cudmore V. Hall V. Seaboume Symons v. Symons Syren v. Blakeman T. 625 587 175 178 628, 758 26 101 635 705 326, 673 333 604 24 178 112 237 o Taylor v. Stibbert 333 V. Taylor 14 V. Townsend 544, 645, 781 V. Wells 752, 763 u. Whitehead 183, 214, 844 Taffe !!. Warniok 644, 545 Taintor v. Cole 114 Talbot V. Ford 268 V. Gay 424 b V. Hill 535 V. Whipple 516, 545, 549, 551, 714 Tallman v. Bresler 455 V. Coffin 273, 279, 437, 699 Talvande v. Cripps 558 Tamworth v. Ferrers 697 Tarpy v. Parsing 424 a Tart V. Crawford 171 Tate V. Blackburne 644 V. McCormick 452 Tatem v. Chaplin 262, 414 Taunton v. Costar 623, 524, 631, 716 Taylerson v. Peters 572 Tayloe v. Sandiford 673 Taylor v. Atlantic Ins. Co. 197 V. Bailey 176, 176 a V. Baldwin 179 a, 189, 633 V. Beal 630 V. Beebe 17, 126 V. Buckner 698 V. BuUen 281 V. Caldwell 39 «. Cole 173, 435, 531, 716, 783 V. Debar 324, 685 V. De Bus 371 u. Glenny 107 V. Hampton 239, 242 V. Henniker 736 ■ V. Horde 83 V. Jackson 24 V. Lanyon 602 V. Mason 275, 282 V. Mayor 175 V. Moffat 416 V. Needham 705 V. Nelson 424 a V. Owen 261, 437 V. Partington 46 V. Salmon 138 V. Shum 371, 450, 452, 453 VOL. I. — g V. Zamira 341, 895, 627, 630, 681 Teaff V. Hewitt 644 Teagarden v. McLaughlin 174 Tempest v. Eawhng 39, 42, 344, 421 Templeman v. Biddle 538 V. Gresham 424 o V. Smith 749 Tenant v. Goldwin 176 a Ten Eyck v. Houghtaling 662 Terboss v. Williams 572 Terrel v. Ligon 558 Territt v. CowenhoTen 708 Terstegge v. First German, &c. Soc. 332 Tesseyman v. Gildart 763 Test V. Devers 793 Tew V. Jones 25, 636 V. Winterton 660 Tewksbury v. Magraff 707 Texas & Pac. K. R. v. Bayliss 172 Texas Land Co. v. Turman 708, 787 Thaeher v. Cobb 243 Tliacker v. Henderson 135, 447 Thanner v. Hambrog 482 Thatcher v. Omans 103 Thayer v. Arnold 183 V. Hedges 394 V. Littlejohn 524 V. Soc. of Unit. Bro. 706, 707 V. Wendell 669 V. Wright 186 a Theobalds v. Duffoy 27, 73, 430 Theological Inst. v. Barbour 460, 524 Thiebaud v. Bk. Vevay 332 Tliier v. Barton 618 Thomas v. Afflick 79 V. Bacon 424 a V. Brackney 224 V. Cadwallader 683 V. Connell 435 V. Cook 512, 514, 616, 636 V. Crout 651 V. Davis 540 V. Evans 393 V. Frost 524 V. Godfrey 704 V. Harris 776 V. Hayward 262 V. Marshfield 237 i!. Nelson 56 V. Noel 534 V. Packer 80 V. Pemberton 456 V. Pyke 668 V. Sanford St. Co. 60 V. Sorrell 237 a, 251 V. Thomas 217, 467 V. Todd 394 V. Van Kapffi 262, 400 XCVIU INDBX TO OASES CITED. Thomas v. WUliams 24 Tio V. Vance 377 V. Wright 55,469 Tobey v. Barber 638 Thomes, Ex parte 104 V. Eeed 773 Thompson v. Button 739 V. Webster 173, 765, 773 V. Clark 705 Todd V. Collins 196 V. Crocker 225 V. Flight 175 V. Gibson 778 V. Jackson 523, 532 V. Gregory 237 V. Lee 106 V. Hewitt 456 Toledo K. E. Co. v. Goddard 199 V. Lapworth 398 Toleman v. Partbury 489, 497 V. Leach 147, 508, 512 ToUe V. Orth 53,56 V. Marsh 526 Tomkins v. Lawrance 55,58 V. Mashiter 587 Tomlin v. Fuller 216 V. Mayor 85 Tomlinson v. Day 378, 388, 649, 650, 679 V. Mead 424 a, 559 Tompkins v. Elliott 265, 276 V, Rose 263, 437 V. Snow 705 V. Sanborn 19 Toms V. Luckett 66 Thomson v. Bower 25 Tonawanda E. E. v. Munger 198, 199, V. Guyon 496 765 0. Eiggs 394 Tondro v. Cushman 705 V. White 246 Tone V. Brace 257 V. Wilson 482, 509, 615 Tongue v. Pitcher 620 Thorn v. Burton 118 Toole V. Beckett 175 a Thorndell v. Morrison 104 Toomes v. Conset 98 Thorndike v. AUington 659 Torrey v. Torrey 25, 466 V. Burrage 343, 359, 524 Torriano v. Young 111, 843 Thornton v. Adams 577, 583, 611 Totten V. Phillips 175 a V. Dixon 114 Towery v. Henderson 19 V. Payne 41, 159 Towne v. Butterfield 25, 705, 708 V. Wilson 558 Townley v. Eutan 22, 718 Thoroughgood's Case 98,99 Townrow v. Benson 656 Thorpe v. Eyrie 640 Townsend v. Albers 515 V. Fowler 424 o V. Corning 140 Thrale v. Cornwall 626 V. Davis 705 Thrall v. Hill 549 V. Gilsey 381 Thrasher v. Gillespie 561 V. Hubbard 138 139, 166 Threir v. Barton 294 V. Inglis 137 Thresher v. E. Lond. W. W. Co. 357, V. Isenberger 24 442, 447 549, 552 V. McDonald 224 228 237, 239 Thropp V. Field 161 V. Moore 360 Thropp's Appeal 549, 551 V. Morris 669 Thunder v. Belcher 474, 703 0. Nickerson Wh. Co. 177, 378 Thurber v. Dwyer 56, 76, 477 V. Eead 16, 504 V. Martin 228 V. Scholey 413, 449 Thursby v. Plant 436, 438, 443, 447, 452, V. Van Aspen 728 a 513, 616, 620, 625, 662 665, 670, 688 V. Wathen 194 o Thurston v. Hancock 200, 231, 233, 235 Township of Union v. Bayliss 724 Thurston's Case 84 Trabue v. Eamage 629 Tibbitts V. Percy 265, 331, 371, 379, 388 Tracy, In re 100 Tiee v. Norton 760 V. Alb. Exch. Co. 160, 332, 333, 337, Tiddswell v. Whitworth 397 512 Tidey v. Mallet 276 V. Talbot 67 Tignor v. Bradley 391,424 a V. Tracy 694 Tilden v. Tilden 364 Trappan v. Morie 577, 601 Tildesley v. Clarkson 48 Trasher v. Everhart 166 Tileston v. Newell 276 Trask v. Wheeler 521 Tilford V. Fleming 442 Traylor v. Cabann^ 35, 459 Tilghman v. Little 708 Treaekle v. Coke 871, 449 Tillman v. Shackleton 104 Treadwell v. Marden 457 Tillotson V. Boyd 449 Treat v. Stuart 790 Times Co. v. Siebrecht 497 Treloar v. Bigge 247, 250, 407 Timmins v. Rowlison 55, 482, 529, 710 Tremaine v. Cohoes Co. 203 Tinekler v. Prentice 392, 395 Tremeere r. Morison 460 Tinder v. Davis 636 Trench v. Eichards 372 INDEX TO CASES CITED. XCIX Trenor v. Jackson Trent v. Hunt Treport's Case Tress v. Savage Trevivian v. Lawrence Tribble v. Frame Trieber v. Knabe Trimble v. Ward Trimm v. Marsh Trinity Ch. v. Higgins Tripp V. Grouner Trisany ». Orr Tritton v. Foote Trotter v. Hughes Trousdale v. Darnell Trower v. Chadwick 208 119 91, 118 80, 471 91 532 696 163 406 399 777 18 832, 333 245 475 200, 231, 236 Troy & Rutland R. R. v. Kerr ' 17 Trull V. Fuller 544 V. Granger 15, 176, 177, 317 Trustees v. Brett 383 V. Cowen 262 V. Dunn U, 318 a, 342 V. Meetze 522 V. Spencer 259, 666 V. Robinson 218 V. Utica & S. R. R. 201 V. Williams 705 Tryon v. Mooney I4 Tscheider v. Biddle 339 Tubb V. Fort 442 Tubervil v. Stamp 196 Tucker v. Linger 350 V. Moreland 93 V. Newman 769 V. "Whitehead 133, 180 Tufts V. Adams 320 Tuley V. Mauzey 758 TuUy V. Dunn 68 Tunis V. Grandy - 177, 373 Turbeville v. Ryan 117 Turley v. Rodgers 705 TurnbuU v. Rivers 216 V. Trout 137 Turner v. Bennett 62 V. Cam. Coal Co. 121, 550, 636 V. CoflBn 92 V. Hardey 653 i;. Hawkins 784 "• Lamb 361, 368 V. Lowe 705, 717 V. McCarty 33I V. Meymott 524, 631, 716, 788 V. Ringw. H. Bd. 208 V. Richardson 458 V. Robbins 519 V. Williams 519 Turney v. Sturges 102 Tumor v. Turner 742 Tuttle V. Bebee 24 V. Jackson 171 V. Reynolds 472 V. Tompkins 374, 630, 682 V. Walker 424 a Twombly v. Monroe 167 j Twort V. Twort 179, 694 Twycross v. Fitchb. R. R. ' 397 Twyford v. Bunlley 270 Twynam v. Pickard 262, 296, 443 Tyler v. Davis 705 V. Disbrow 382 V. Heidorn 15 16, 261, 295 Tyng V. Theol. Sem. 69 U. Uber V. Hickson Udal V. Udal Uhe V. Dighton Uhl V. Pence TJlrich V. McCabe 721,728 a 770 574 787 200, 34.3 Underwood v. Birchard 805, 312, 314 V. Burrows 67, 784 Unger v. Forty-Second St. R, li. 199 Union Bank v. Emerson 545 f . Coster 424 6 V. Gittings 28, 30 V. Ridgeley 4246 Union Brass M. Co. v. Lindsay 175 Union Mills Co. v. Ferris 225 United States v. Arrendondo 289 V. Bainbridge 93 V. Bostwick 343, 345, 346 u. Brown 250 V. Grundy 439 V. Hickey 447 V. Nelson 149 U. S. Bank v. Bank of Georgia 894 V. Dandridge 127, 129 Univ. Vt. V. Joslyn 166, 308 Updike V. Campbell 521 Upton V. Ferguson 254 V. Townend 309, 377 V. Vaiden v. Bell 739, Valentine v. Jackson Vallanee v. Bausch Vallfe V. Fargo Valliant v. Dodemede 449, Van V. Corpe Van Alen v. Rogers Van Alstyne v. Spraker V. Van Slyck Van Arken j'.'Decker Vanatta v. Brewer Van Bergen v. Van Bergen 741, 753 561 101 899 452, 656 Van Brundt v. Schenck Van Buren v. Olmsted Van Courtland v. Underbill Vance v. Vance Vandegrift v. Abbott Vanflenbergh v. Van Bergen Vanderbeck v. Hendrey Vanderbilt v. Persse 710, 711 70 1 245, 258 787 244, 273 204, 209, 225 618, 773 124 335 489 133, 374 224 193 686 INDEX TO CASES CITED. Vanderkarr v. Vanderkarr Vanderkemp v. Skelton Vanderpoel v. Van Allen Vanderpool v. Smith Vandevoort v. Gould Van Doren v. Everitt Van Dusen v. Young Vanduyner v. Heffner Vane v. Lord Barnard V. Minshall Van Epps *. Harrison Van Eps v. Dillaye V. The Mayor Van Every v. Ogg Van Gorden v. Jackson Van Heusen v. Radcliflf Van Hoesen v. Coventry Van Horn v. Goken Van Home v. Grain V. Fonda Van Leuven v. Lyke Vann v. House 253 504 544 380, 520 107 185, 538 173 173 355 105 374, 631 638 44 328, 374 161 371, 424 a 224 424 a 262, 335 a, 445 179 a 183, 195 375 Van Ness v. Paoard Van Nest v. Latson Van Orman v. Phelps Van Patten v. Leonard Van Rensselaer v. Ball 538, 540, 546, 548 502 179 424 a 12, 271, 285, 293, 295, 494 V. Barringer 12, 261, 295 V. Bonesteel 261, 437 <;. Bradley 261, 263, 385, 386, 443 V. Briee 220 V. Chadwiek 385, 438 V. Dennison 261, 295, 897 V. Gallup 16, 385, 443 V. Gifford 385, 386, 438 V. Hayes 298, 459 V. Hays - 12, 16, 19, 74, 154, 261, 285, 295, 369, 370, 871, 441 V. Jewett 292, 298, 391, 493, 494, 615 o. Jones 158, 385, 392, 443, 493 V. Penniman 335, 512, 524, 533 V. Platner 261, 460, 669 V. Quackenboss 599 V. Radcliff 219, 220, 769, 773 V. Read 16, 261 440, 441 V. Slingerland 16, 261, 295 V. Snyder 302, 493, 719 V. Van Rensselaer 768 V. Witbeck 370 Van Santwood v. Sandford 670 Van Shaick v. Third Av. R. R. 258, 437 Van Sickler v. Jacobs 586 Vansteenburgh v. Hoffman 565 Van Steenburgh v. Tobias 186 Van Wicklen v. Paulson 154, 447 Van Winkle v. Hinckle 522 Van Wormer v. Crane 364 Varick v. Jackson 84 V. Smith 226 Varley v. Coppard 405 Varner v. Rice 374, 424 a Varney v. Stevens 318 Vasper v. Bddowes 735 Vass V. Wales Vatel V. Herner Vauglian v. Blanchard V. Matlock V. Menlove Vaupell V. Woodward Vausse v. Russel Vaux's Case Vavasor's Case Veale v. Warner Vechte v. Brownell Vedder v. Vedder Veeder v. Fonda Verlander v. Codd Vernam v. Smith 14, 254, Vernon v. Jefferys V. Smith V. Wynne Verplanck v. Sterry V. Wright Vertue v. Beasley Vetter's Appeal Vice V. Burton Vick V. Ayres Vincent v. Buhler V. Corbin V. King Vinkestone v. Ebden Vinton v. Welsh Virden v. Ellsworth Vivian v. Champion V. Moat Von HoUen v. Knowles Vooght V. Winch Voorhies v. Voorhies Vorebeck v. Roe Vose V. Bradstreet Voj'ce V. Voyee_ Vrooman v, Kaig Vyvyan v. Arthur 261, W. 327 305 378 246 197 393 592 75 347 92 581 175 49 46 257, 304, 705 259, 664 262, 400, 445 750 167 260, 437 566, 776 20 704 25 105 467, 472 418 735 222 424 a 368 522 153 243 94 170 160 769 22 262, 371, 440 Waddell v. Cook 613 Waddilove v. Barnett 120, 653 Wade V. Halligan 559, 563 V. Merwin 266 Wade's Case 393 Wadhara v. Marlowe 438, 620 V. Postm.-Gen. 277, 278, 489 Wadsworth v. Alcott 390, 540 Wafer v. Mocato 413, 496 Waffle V. N. Y. Cent. R. R. Co. 230 Waggener v. McLaughlin 341, 708 Waggoner v. Jermaine 175, 209 Wagner v. L. I. R. R. 224 V. White 372 Wailing v. Toll 653 Wain V. Warlters 424 a Wainscott v. Silvers 196, 364 Wainwright v. Barclay 415 Wait V. Kelsey 330 V. Maxwell 97 INDEX TO CASES CITED. CI Wakefield v. Brown Wakeman v. Banks "VValbond w. Hawkins Walbridge v. Pruden Walcott V. Goulding V. Schenck Walden v. Bodley "Waldo V. Hall V. Long Waldron v. McCarty Walker v. Brown u. Denne V. Engler V. ritts V. Furbush a. Gilbert V. Hatton V. Johnson V. Reeves V. Richardson I), Sharpe V. Sherman V. Shoemaker V. Tucker V. Walker V. Wheeler V. Whittemore 260 474 600 563 673 728 522 445 322 808 252 560 489 24 62, 637 330 110, 174, 368 688 450, 670 611, 5ia 475, 477, 484 544,549 380 252, 314, 344, 378 32 277 398 Walker's Case 378, 387, 616, 620, 625 Wall V. Goodenough 522, 790 v'. Hinds 115, 375, 448, 544, 545, 547 Hunt Wallace v. Breeds V. Harmstad V, Lent V. King V. McLaren Wallen v. Forestt Waller v. Andrews V. Dean of Norwich V. Morgan Wallis V. Harrison Walls V. Atcheson V. Preston Walmsley v. Lindenberger Walmsly v. Milne Walsal V. Heath Walsh V. Feely V. Lonsd^e i;. Ringer Walter v. JBewey V. Maunde V. Post V. Van WinJ^le Walters v. Hutchins V. North Coal Mining Co. V. Pfeil Walton V. Cronly V. File V, Kersop V. Waterhouse Wansbrough w. Maton Wansey v. Perkins Ward V. Andrews V. Buckingham 790 394 16, 74, 165, 261, 559 382 605, 609, 771, 781 569, 618 708 398 266 26 237 a 515, 516, 648 720 93 644 102 16 37 161 392, 493 385 233 720 361 657 231 436, 438, 450, 455 632 751, 753 361, 364, 708 547 66 860, 770 423 Ward V. Coust V. Day V. Hawley V, Lavile V. Lumley V. Macauley V. Mason V. People V. Shew V. Smith V. Vance Waring v. King Warman v. FaithfuU Warn v. Bickford Warner v. Abbey V. Hale i;. Hitchins V. Hoisington V. N. Y. Cent. R. R. V. Paige V. Tanner V. Theobald V. Willington Warren v. Arthur V. Comings V. Ferdinand V. Forney V. EaufCman i: Leland V. Lynch V. Maims V. Prescott V. Powers V. Ritter V. Wagner Warwick v. Bruce Washburn v. Sproat Watchman v. Crook Waterman ji. Harkness V. Robinson Waters v. Barral's Heirs V. Bean V. Dean of Norwich V. Ford V. Lilley u. Moss V. Young Watherell v. Howells Watkins v. Goodall V. Holman V. Taliaferro Watriss v. Cambridge Bk. Watson V. Atkins V. Bailey V. Bonney V. Coffin V. Home V. Hooten V. Hunkins V. Hunter V. Johnson V. McClure V. Watson V. Welsh Co. 395 498 745 751 620 769 372 224 567 47, 177 316 524, 641, 642 41,42 825, 674 24 467 360, 864 24 199 62 63 628, 681 35 430 663 635 564, 665, 681 178 161 166 270 475 373 790 860, 372, 379 93 544 246 399 749 99 104 266 722 a 222 183 477 345, 547 175 25 561 424, 562 341 103 101 331 341, 395 330 426, 440 690. 691 424 a 424 a 739 541 en INDEX TO OASES OITED. Watterson v. Reynolds 50 Watts V. Coffin 218, 329, 330, 374, 380, 385 V. Wellman 321 Way V. Hilton 448 V. Myers 377 0. Raymond 25 V. Reed 439 Weale v. Lower 72, 91 Weatherall v. Geering 282, 408, 418 Weaver v. Coumbe 171 V. Lawrence 739, 747 V. Ward 197 Webb V. Alexander 306, 308, 310, 678 V. Austin 87, 91, 261 V. Fairmaner 78, 79 V. Jiggs 619 V. Plumber 252, 253, 356, 421, 538, 540, 541 V. Portland Manuf . Co. 209 V. Russell 118, 125, 130, 261, 294, 371, 446, 518, 665 V. Rome, W. & 0. R. Co. 196 V. Webb 160 Webber v. Moore 567 V. Shearman 525, 564, 572 V. Tivill 575 Weber v. Reinhard 897 Webster v. Bach 216 V. Holland 20 V. Nichols 261, 341, 402, 424 a, 426, 497 V. Nosser 361 V. Stevens 188, 190 V. Warren 676, 683 V. Woodford 97 Weddall v. Capes 510 Weed V. Crocker 38 Weeks v. Hull 79 Weeton v. Woodcock 551, 552 Weichselbaum v. Curlett 341, 708 Weidell v. Roseberry 583, 760 Weigall V. Waters 329, 331, 374, 630 Weir V, Brooks 559 Weiss V. Jahn 576 Welch V. Adams 121, 637 V. Andrews 637 V. Bell 596 V. Myers. 456 V. Winterbum 63, 765 Weld V. Nichols 189 V. Traip 40 Welden v. Bridgewater 768, 783 Welford v. Beazeley 35, 36 Welland Canal v. Hathaway 90 Welles V. Castles 375, 382 Wellesley v. Wellesley 697 Wells V. Bannister 645 0. De Leyer 335 V. Head 195 V. Hornish 561, 579 u. Howell 186, 765 V. Mason 252, 708 V. Preston 24 Weils V. Smith 275, 277 Welsh V. Nash 191 V. Rose 565 V. Schuyler 427, 450 Welz V. Rhodius 418 Wenger v. Campbell 478, 483 Wentworth v. Cock 459 V. Ports. & D. E. R. 24, 200 i>. Tubb 97 Wenzler v. McCotter 175 Werner v. Ropisquet 581 West V. Cartledge 640 V. Dobb 405, 410 V. Emmons 265 V. Eritche 120 V. Randall 171 V. Sink 601 V. Treude 688 Westcott V. Thompson 246 Western Tr. Co. v. Lansing 55, 332, 333 Westervelt v. Ackley 107 Westlake v. De Graw 374, 382, 630, 641, 646 Westmoreland v. Foster 424 a Weston V. Alden 225 V. Arnold 189 V. Barker 428 V. Incorp. of Tailors 178 V. Managers, &c. 489 V. Weston 525, 544 West Roxbury v. Stoddard 220, 224 West Side Sav. Bk. u. Newton 315 Westwick v. Wyer 134 Wetmore v. Tracy 209, 209 a Wetzel V. Mayers 424 a, 559 Whalen v. Gloster 175, 193 !;. Keith 200 Whalin v. White 708 Wharton v. Kelly 82 u. Stoutenburgh 46 Wheat V. Watson 421 Wheaton v. East 93 V. Phillips 106 Wheeler v. Bramah 459 V. Branscombe 120 V. Brant 195 V. Copeland 529 V. Crawford 328 V. Dascomb 271 V. Earle 489 V. McFarland 739 V. Montefiore 15 V. Newbould 540 V. Stevenson 379 V. Train 748, 749 V. Walden 507 Wheelock v. Warschauer 708 Wheelwright v. Beers 258 V. Wheelwright 167 Whelpdale's Case 99 Whetstone v. CoUey 394 V. Davis 332, 333, 471 Whichcote v. Lawrence 142 Whipley v. Dewey 533, 551 INDEX TO CASES CITED. cm Whipple V. Shewelter 160, 483 Whitbeok v. Cook 306, 821 V. Skinner 374, 631 Whitbread v. Brockliurst 32 Wliitclioot V. Fox 497 Wliitchurch v. Wliitchurch 504 White V. Albany Railway 358 V. Arndt 551 V. Bailey 728 a, 792 V. City Council 181 o. Crawford 217, 239, 240 V. Cuyler 137 V. Eagan 161 «. Fuller 74 V. Hunt 458 V. Livingston 25 V. Maynard 66 17. McMurray 391 V. Mealis 174 V. Montgomery 175 a V. Mut. Ins. Co. 175 a V. Nicholson 343 V. Palmer 97 V. SmaU 98 V. Skinner 140 V. Stellwagen 725 V. St. Guiron'a 698 I,. Thomas 456 .,. Wagner 349, 688 V. Walker 424 6 u. Warner 496 V. Wear 122 V. Wieland 28 Whiteacre v. Symonds 485, 486 Whitehead v. Clifford 473, 515, 641, 648 Whitehouse v. Frost 394 Whitely v. Roberts 569 Whitfield V. Brandwood 341 V. Howe 429 Whitford v. Laidler 636 Whiting V. Brastow 544, 548, 550 17. Edmunds 706 V. Lake 583 V. Pittsburg Opera House Co. 46 Whitwell V. Harris Whitworth v. Smith Wickham v. Freeman Wicks V. Caulk V. Jordan Wigford V. Gill Wigg V. Wigg Wiggin V. N. York V. Peters V. Wiggin V. Woodruff Wiggins V. Armstrong Wigglesworth v. Dallison Whitlock V. DufSeld V. Horton Whitlook's Case Whitmarsh v. Cutting V. Walker Whitmore v. Humphries V. Walker Whitney v. Allaire V. Bartholemew V. Dart V. Gordon V. Lewis V. Meyers V. Swett Whittaker v. Barker V. Hawley 333, 335, 524 114, 159 156 534, 536 552 522 653 15, 176, 304 201 25, 641 62, 637 14 377, 509, 512, 514, 725 60, 532 543 375 Whittingham's Case Whittome v. Lamb Whitton V. Peacock V. Smith 95 156 87, 92, 261 611 Wight V. Dickson Wilborn v. Whitfield Wilbraham v. Snow Wilcher v. Robinson Wilcox V. Wood Wild V. Serpen Wilde V. Cantillon V. Waters Wilder v. Ewbank Wildman v. Wildman Wilds V. Huds. Riv. R. R V. Layton Wiles V. Peck Wiley's Estate Wilford V. Rose Wilkerson v. Farnham Wilgus V. Whitehead V. Lewis Wilkins v. Despard V. Fairie V. Fry ' V. Ibbett V. Wingate V. Wood Wilkinson v. Clauson V. Clements V. CoUey V. Gaston V. Hall V. Kettler V. Libby V. Pettit V, Terry V. Wilkinson Wilks V. Back Willan V. Willan Willard v. Eastham V. Henry V, Reinhardt V. Silliraan V. Taylor V. Tillman 16, 172, . V. Warren Wiiley V. Connor Williams v. Ackerman V. Bank of U. S. V. Bennett V. Bigelow V. Bosanquet 16, 460, V. Briscoe 489, 490 730, 781 765, 773, 787 170 635 207, 210, 211 291 386 78,79 707 721a 577 366, 538, 640, 541 159, 160 707 769, 784 705 78, 540 708 65, 632 549 497, 720 101 190 344 104 436 684 836 a 498 114, 525 489 192 44, 259, 457 67 620, 651, 706 640 328 46 480, 527 78 43, 57, 527 424 a 399 262 735 408 138, 139, 149 333 106, 107 288 66 a 379 262 261, 426, 440 787, 793 641 86 280, 289 474 720 451, 455, 461 47 CIV INDEX TO CASES CITED. "Williams v. Burrell 252, 317 V. Deriar 21, 23, 55 V. Earle 262, 410, 413, 452, 453 V. Fry 282 V. Gale 209 a, 210 V. Garrison 705 V. Handley 164 r. Hayward 16, 261, 380, 440, 621 V. Heales 434, 459 V. HoUis 636 V. Howard 566, 573 V. Inabnet 100 V. Jones 607 V. Leper 577 V. Mayor 705 V. McMichael 877 V. McNamara 697 V. N. Y. Cent. E. R. 201 V. Potter 302 V. SafEord 213 V. Sherman 635, 650 V. Spencer 578 u. Starr 165 V. Taliaferro 579 a V. Terboss 563 V. Welch 751, 754 V. Wetherby 309, 667 V. Williams 110, 355, 359, 361, 362 V. Woodard 53, 450, 684 Williamson v. Miller 330 William, &c. Street, Matter of 519 Willingham v. Joyce 47, 387 Willington v. Gale 118 Willis V. Aston 334 V. Parkinson 179 WiUison v. Watkins 437, 522, 705, 708 Willmarth v. Pratt 24 Willmott V. Barber 47, 402 Willoughby v. Backhouse 730, 731 WUls V. Dryden 437 V. Stradling 32 V. Walters ]£4 ». Wills 15 Willson V. Leonard 365 Willy V. MuUedy 175 a Wilms V. Jess 236 Wilson, Ex parte 176 V. Abbott 475 V. Ames 757 V. Bagshaw 162 V. Brechemin 668 V. Chalfont 287 a V. Deen 44 V. Duekett 587 V. Finch Hatton 66, 175 a, 383 V. Green 724 V. Harman 389 V. Hobday 739 V. HubbeU 708 V. James 629 V. Jones 495 V. Mackreth 768, 769, 771 V. Martin 24, 66 V. Prescott 524 Wilson V. Raybould 317 V. Scruggs 335 a V. Smith 352, 353, 380, 381, 784 V. Stewart 424 a v. Taylor 77 V. Whately 549 V. Wilson 401 V. Woolfryes > 90 Wilston V. Pilkney 509 Wilton V. Dunn 120 Winchester, Bp. of, v. Enight 658 V. Wright 619 Windsor v. China 78 Windsor (Dean of) v. Gover 619, 628 Windsor (Dean & Chap.) Case 262, 367 Winfrey v. Work 442 Wing V. Burgis 164 V. Gray 548 Winn V. Ingleby 547 Winship v. Pitts 348, 698 Winslow V. Henry 574, 601 V. Merch. Ins. Co. 544, 550 V. Tighe 262 Winstell v Hehl 102, 708 Winter v. Loveday 72 Winterbottom v. Ingham 25 Winterbourne v. Morgan 603, 605, 614, 736, 777, 781 Winterfield v. Stauss 792 Winterink v. Maynard 180 Winton v. Cornish 520 Wintringham v. Lafoy 750 Wise V. Metcalfe 343, 688 V. Old 565 Wisner v. Oeumpaugh 424 a Wissenhunt v. Jones 173 Wiswall V. Hall 163 Witbeck v. Waine 44 Witchcot V. Nine 309 ' Withers v. Bircham 115, 264 V. Larrabee 22, 55, 61, 62, 515 Witherspoon v. Dunlap 53 Withey v. Matthews 328, 329 Witt V. New York 22, 55 Witte V. Witte 467 Wittman v. Milwaukee, &c. Kail- way Co. 16 Woglam V. Cowperthwaite 558, 605, 744 Wolcot V. Sullivan 330 Woloott V. Van Santvoord 634, 653 Wolf t). Johnson 708 V. Merritt 391 Wolfe V. Frost 31, 189, 212 V. Washburn 664 Wolff «. Studebacker 177 Wolffe V. Wolfee 22 Wolgamot V. Bruner 565 WoUaston v. Hakewill 16, 406, 451, 459, 461 Wolveridge v. Steward 371, 454 Wolz V. Sanford 524 Womack v. McQuarry 309, 331, 520 Wood V. Beard 77, 471 i;. Bogle 399 INDEX TO CASES CITED. CV Wood V. BuUens V. Clark V. Day V. Goodridge V. Griffin V. Hickock V. Hitchcock V. Hewitt V. Hubbell V. Leadbitter V. Nunn V. Partridge V. Quincy V. Sanciiey V. Wilcox V. Wood Woodman v. York & C. R. E. Woodrow V. Michael Woodruff V. Adams V. Erie R. R. Woods V. Hlldebrand V. Kennedy V. Naumkeag St. Cott. Co. V. Pope Woodside v. Adams V. Ridgeway Woodward v. Brown V. Cone u. Gyles u. Lindley V. Parshley Woodworth v. Bank of America Woolf K. Chalbeer Wooliscroft V. Norton WooUey u. Constant V. Osborne V. Watling Wootley V. Gregory Wooton 1). Edwin V. Gwin Worcester v. Eaton V. State of Georgia Wordsworth v. Lyon Workman v. Mifflin Worrall v. Munn Worthington v. Cooke V. Hylyer V. Lee u McCann V. Parker Worthy v. Tate Wotton V. Cooke V. Hele V. Shirt V. Wise Wright V. Atkina V. Cartright u. Cochran V. Douglass 894 587, 589 362, 705, 706 137 178 540 893 647 15, 176, 177, 375 261 678, 580 389, 391, 427, 515 179 106 641 540, 716 166 467 174 705 165 163 176 a 368 569 720 472 494, 728 a 696 508 31 16.3 195 261 165 328 641 611 156 424 a 93,94 8 728 619 169 385 160 332 438 175 a 728 326 102, 313 386 348 697 75 164 90 Wright V. Freeman 217 V. Howard 224 V. Kelly 165, 449 V. Lattin 276, 331, 374, 379 V. Roberts 64 V. Saunders 192 V. Smith 622 V. Stavert 66 V. Stockport 66 V. Trevezant 39, 42 V. Williams 208, 570, 581, 760 Wunderlich v. Reis 455 Wyatt V. Harrison 197, 231, 233, 783 Wyman v. Ballard 820 V. Dorr 18, 749 V. Johnson 721 a Wyndham v. Way 546 Wynkoop v. Burger 218, 214 Wynn v. Allard 199, 200 Wyoming Coal Co. v. Price 707 Yager t'. Wilber Yale V. Dederer Yandes v. Wright Yarborough v. Monday Yard v. Ford Yarnold v. Moorhouse Yates V. Dunster Yaw V. Leman Yeakle v. Nace Yeaton, Re Yellowly w. Gower Yerby v. Grigsby Yoder v. Easeley Youmans v. Caldwell Young, Ex parte V. Adams V. Boston V. Collins V. Dake V. Irwin V. Mantz V. Peyser V. Smith Youngblood v. Harris V. Lowry Z. 717 104, 106, 107 236 141, 166 784 409 368 341 242 456, 457 156 137 790 158 549 479 66 243 15,80 698 , 368 889, 449 468, 717 561 688 Zeller v. Eckert 522 Zoebisch v. Tarbell 193 Zouch V. Parsons 93, 94, 101 V. Willingale 486, 499 Zule V. Zule , 17, 389, 465 LANDLORD AND TENANT. THE LAW OP LANDLORD AND TENANT. INTRODUCTION. § 1. The relative position of a civil government to its citi- zens — that of protection on the one hand, and of dependence on the other — necessarily involves the idea of allegiance and service to the State, as a condition to the use and enjoyment of the land within its boundaries. Hence some mode of ten- ure is incident to every government; and the highest estate which a man can have in land has direct reference to his duty to the State, being called a tenancy in fee-simple ; while the occupant is a tenant in fee, and is said to have and to hold his lands, to him and his heirs. He holds of the State to which he owes fealty and service ; and, if he fails in his allegiance to her, or dies without heirs upon whom this duty may de- volve, the tenure is at an end, his land returns to the common stock from which he had it, and vests again in the Prince, or other representative of State sovereignty, whoever it may be ; who is thence called, in common-law language, the lord paramount. § 2. This tenure necessarily gives rise to 'another legal re- lation, which springs up between the original tenants to the State and the various individuals among whom they find it convenient or necessary to divide their possessions, for pur- poses of cultivation or improvement. And this relation is necessarily modified in its character by the peculiar structure vol,. I. — 1 5s LAW OP LANDLORD AND TENANT. of the gOTernment under which it subsists. History teaches that all municipal law is, in fact, but a reflection of the policy and manners of the age from which it sprung ; while the his- tory of our law exhibits the feudal institutions of our Norman ancestors extensively incorporated throughout the whole body of modern jurisprudence, but most intimately with that por- tion of it which forms the subject of this Essay. It will, con- sequently, be found difficult, if not impossible, to form correct ideas of this particular mode of tenancy, and of the various changes through which the relation of landlord and tenant has passed, from the barbarism of ancient Europe, to the hu- manity and refinement of free America, without some pre- vious knowledge of the history and character of the feudal ages, in which it was nurtured, if it did not originate. § 3. By the theory of the English law, upon which our leg- islation on this subject is essentially based, all property in land, since the Norman Conquest, is derived from the Crown. The King, after that event, portioned it out in large districts to the prominent men who surrounded him and who had been useful to him in war, and were capable of advising him in peace. These again subdivided their districts among their immediate followers and dependents, the actual occupants and cultivators of the soil. To all such grants, however, an ex- press reservation of military service was annexed ; each of the principal feudatories becoming, in turn, the head of a military power, always liable to be called into action, and ever ready to defend his chief. As a compensation for this ser- vice, the vassal was entitled to the use of the soil, the fee remaining in the lord; but he was regarded rather as a bailiff or servant, accountable for the profits'of , than as having any direct property in, the land. His tenure, or fief, as it was called, was of the most precarious kind, depending entirely on the pleasure of his lord, and afforded little if any encourage- ment to the improvement and cultivation of the land.^ 1 The Norman period is assumed in the text, for the purpose of exhib- iting the doctrine of tenures ; but there is no reason for thinking that the material parts of the feudal tenure, as exercised by the Normans, did not exist in England before their arrival. A large portion of the lands en- INTKODUOTION. 3 § 4. It soon, however, appeared to be so manifestly just that one who had sowed and cultivated the land should be allowed to reap the crop, that fiefs, which were at first so pre- carious, presently became annual. Having advanced to this degree of permanence, they were next granted during a term of years, in favor of men who had employed their means and labor in building, planting, and improving, and who would have no inducement to do so, unless they were permitted to enjoy the fruits of their labors for a reasonable period. Then, as it would be hard to deprive a man of his possessions, who had always done his duty, and performed the conditions on which he received them, chieftains soon began to consider themselves entitled to demand the enjoyment of their lands for life. Finally, it was found that a man would more will- lingly expose himself in battle, and devote himself more un- reservedly to his lord's service, if assured that his family should inherit his possessions, and not be left in poverty by his death ; whereupon fiefs became hereditary.^ § 5. But, although a certain degree of stability thus began to attach to these tenures, they were burdened with the most tered in the Conqueror's celebrated Doomsday-book, are stated to be held by the same tenure, at the same rent, and subject to the same services, as they were in the time of Edward the Confessor; and the internal evidence of Doomsday bears no reference to any simultaneous surrender of former tenures, or any re-grant of the same lands as feudal. The Normans prob- ably introduced some new provisions into existing tenures, and attempted more; and we know there was a contest between them and the English, whether many of those laws which had been neglected for a time should be restored or not. But the fact of their having been restored will serve to show that no gi'eat change was ultimately allowed to prevail; and that the general system of the laws continued much the same under the new dynasty as it had been under that of the Saxons, with the exception of such usurpations as were from time to time forced upon the English. Spel. Gloss. 219; M. & S. Hist, of Boroughs, 69; Hale's Hist. Com. Law, 120. See also Co. Lit. 64, a, note; 2 Bl. Com. 48; Reeves's Hist. Eng. Law, vol. i. p. 8; Gilb. on Ten. 30; Bacon on Leases, 1. 1 Whatever uncertainty there may be as to the time when feudal ten- ures were first introduced into England, there seems to be none that terms for years were of common occurrence prior to the reign of Edward the First, as the statute of 6 Edw. I. c. 11, refers to a letting for a term of years, apparently as an ordinary event. 4 LAW OP LANDLORD AND TENANT. onerous incidents. No man could dispose of his lands, either by sale or by will, for ever so short a period, without the con- sent of his superior. The possessor was not the proprietor, but the mere beneficiary, and could not oblige his superior to accept of any vassal or occupant that was not agreeable to him. Hence arose fines for alienations, escheats, reliefs, wardships, and primer seisins.^ Women were obliged to marry the nominee of the lord or forfeit their lands, and fre- quently paid large sums for the privilege of making their own choice in marriage. Justice itself was openly bought and sold ; and the King's court, the highest judicature in the king- dom, was, under this detestable policy, open to none but those who brought presents. The miserable vassal was in fact, as well as in name, his lord's man. Surrendering to him his in- telligence with his independence, his whole life was spent in a laborious and degraded vassalage upon the soil, where he received protection and from which he derived subsistence. The tenure by which he held was feudal; and the whole policy of the system — which originated, in all probability, with the Gothic conquerors of the Roman Empire — essentially war- like, though servile in its character, was well calculated to defend by arms that which had been obtained by force. The feudal system remained in operation during the time that the laws and institutions of England were in the process of for- mation, and necessarily gave character to them ; and although it was essentially abolished during the reign of Charles the Second, when it came to be considered as destructive of the public peace, and opposed to the progress of society ; ^ yet ' Fines upon alienations are in modern times known as bonuses or gratuities, which the owner receives as the consideration of granting his permission to the transfer of a lease, restrained by a covenant against assigning. " The military tenure of land had been originally created as a means of national- defence ; but, in the course of ages, whatever was useful in the institution had disappeared, and nothing was left but ceremonies and grievances. A landed proprietor, who held an estate under the Crown by knight-service, — and it was thus that most of the soil of England was held, — had to pay a large fine on coming to his property. He could not alienate an acre without purchasing a license. When he died, if his domains descended to an infant, the sovereign was guardian, and was not INTKODUCTION. 6 the traces of its policy are still distinctly visible on both sides of the Atlantic, much of its technical language is retained, and many of its arbitrary rules yet exist.^ § 6. We have seen that a leading characteristic of feudal tenures had been, that the vassal took the profits, while the property of the soil remained in the lord ; the lord's seigniory, together with the vassal's feud, made up the whole estate. But by a series of legislative enactments, forced from the hand of unwilling power by the gradual advance of intelli- gence, and the resistless demands of the money-king. Com- merce, these separate properties were at length blended into one estate ; and the period finally arrived when the true pro- prietor held his lands of no superior lord to whom he owed only entitled to great part of the rents during the minority, but could require the ward, under heavy penalties, to marry any person of suitable rank. The chief bait which attracted a needy sycophant to the court was the hope of obtaining, as the reward of servility and flattery, a royal letter to an heiress. These abuses had perished with the monarchy (of Charles I.). That they should not revive with that of Charles II. was the wish of every landed gentleman in the kingdom. They were there- fore solemnly abolished by statute (at his restoration) ; and no relic of the ancient tenures in chivalry was suffered to remain, except those honorary services which are still, at a coronation, rendered to the person of the sovereign by some lords of manors. — Macaulay's England, vol. i. 144. 1 The restraints upon alienation mentioned in the text, being of feu- dal origin, were predicated upon that provision of feudal law which pro- hibited the lord from alienating his property to such an extent as to lose the ultimate control over it. Hence, at common law, restraints upon the alienation of lands in fee could only be imposed by persons having a re- version, or at least a possibility of reversion, in them. Chancellor Kent (3 Com. 506) gives an outline of the various causes which gradually led to the mitigation of these severe restrictions, until they were finally re- moved (except as to the King's tenants in capite) by the statute of quia emptores terrarum. In the State of New York, the Acts of Oct. 22, 1779, transferring the seigniory of all lands, escheats, &c., from the King to the people of that State, and the Act of Feb. 20, 1787, putting an end to all feudal tenures, and substituting a tenure between each landholder and the people in their sovereign capacity, removed the entire foundation on which the right of the grantor to restrain alienation in any shape had formerly rested. The subject is very ably discussed in the arguments of counsel and of the learned judge (Ruggles) who delivered the opinion of the court in the case of De Peyster v. Michael, 6 N. Y. 467. 6 LAW OP LANDLOBD AND TENANT. homage, fealty, or other arbitrary service. He now had the entire right and dominion over the estate, and, subject only to the right of eminent domain, which the State never relin- quishes, might alienate his land in any way and for any period he thought proper. His land was no longer trammelled by feudalism, nor locked up from commerce, but he possessed that free and full control over it which has been found so use- ful and necessary in the business of, life, and thence enjoyed an estate called allodial.^ § 7. There had been an intermediate species of feudal tenure, called a socage tenure ; but its incidents, although more definite and certain, were scarcely less rigorous and obnoxious than the arbitrary and uncertain tenure by knight- service. The term itself was applicable to freehold tenures of the Crown, and to all others, which were not military ten- ures, but they were always deemed to be of an inferior and servile character. As intelligence, however, increased, society advanced ; commerce began to flourish, and military services became less requisite ; while agricultural productions were more in demand, and the lord soon found his interest in com- muting the one for the other. The substitution of a certain service, or the rendition of a stipulated sum, in place of all uncertain and arbitrary, and therefore tyrannical, servitude, was a decided step taken towards the establishment of that freedom which the people were soon to enjoy. Still, however, the principal difference between these several species of tenure for a long time continued to be, that the services and incidents of the latter were of a fixed and certain character ; while the former enjoyed not even this poor privilege. § 8. The remote and isolated position of the United States preserved, to a great extent, their independence of these em- barrassing tenures ; and, with a slight exception, their present condition includes no tenure but that which we have said is 1 From a privative, and lode or leude, a vassal ; that is, without vas- salage. Land possessed by a man in his own right, and which owes no rent or service to any superior, is held in allodium. 2 Bl. Com. 104; 9 Cow. 437. INTKODTrCTION. 7 incident to every free government.^ The law of nations has always acknowledged the right of a nation to acquire property, and sovereignty, over any uninhabited country which it dis- covers without a previous owner, if it proceeds to occupy and settle the country so discovered within a reasonable time. But the question has been left unsettled, whether a nation may law- fully take possession of a country where there are none but wandering tribes, whose scanty population is incapable of occupying the whole. It is admitted, however, to be lawful to confine such tribes within fixed limits, whenever it be- comes necessary to make use of the land of which they stand in no particular need, and of which they make no actual and constant use. The discovery of America, consequently, con- ferred upon the government by whose authority such dis- covery was made the ultimate dominion of the soil, with the right of granting title thereto.^ The original settlers of this country invariably respected the Indian right of occupancy ; and although some of the royal patents authorized them to take possession of and colonize their chartered domains, yet, following the example of the New England Puritans, the colonists generally, if not uniformly, recognized the Indian title, and from time to time acquired by fair purchase such lands only as the Indians were willing to sell.^ The ^ The principles of English liberty were strong in the bosoms of our ancestors when they fled from feudal oppression, and founded on this ■western shore a government of equal laws, and of equal rights. They steadily opposed the introduction of any of the laws or institutions of the mother country which were not in conformity to those principles, or which in any respect violated the rights of the original owners of the soil. As to a tenure of land among the savages, there was none ; no individual cultivated land for his own benefit, or claimed protection in its enjoyment. It was only when civil government was established, and they were subjected to its sway, that it became necessary to define the tenure by which they, as well as all other settlers upon the lands of the State, should be thenceforth held. 2 Worcester v. The State of Georgia, 6 Pet. 515; Johnson v. Mcintosh, 8 Wheat. 543. " Vattel, book i. ch. 18, says, " We cannot help praising the mod- eration of the English Puritans, who first settled in New England [and he micht have added of the first settlers in all the other colonies] who, notwithstanding their being furnished with a charter from their sover- eign, purchased of the Indians the lands they resolved to cultivate." The United States Government continues the practice to this day. 8 ■ LAW OF LANDLORD AND TENANT, General Government has acted upon the same humane prin- ciple ; and the Indian title has, by this mode, become nearly extinguished throughout the wide expanse of our national domain. § 9. Early Colonial Charters and Royal Grants usually con- tained a qualification that the land thereby granted should be held of the Sovereign by a common socage tenure. But when the States succeeded to the authority of the British govern- ment, and occupied the feudal position of lord paramount, which had formerly been held by the Crown, they graduallyj and in some instances at once, threw off the restriction, and by express legislation declared all tenure of land within their borders to be allodial. In New York, the legislature of 1778 abolished military tenures and all their incidents, retrospec- tively, from the 30th August, 1664, when the province was surrendered by the Dutch to the English. It next abolished tenure in socage in capite, with its fruits and consequences ; and converted all manorial and other tenures into free and common socage ; reserving only the rents and services due upon such tenures from the persons previously entitled to them, together with the right of distress, as incident thereto. In October, 1779, the absolute property of all lands and tene- ments, and of all royalties, dues, and services which before the 9th of July, 1776, belonged or were due to the Crown of Great Britain, was declared to be vested in the people of the State, in whom the sovereignty and seigniory thereof were also declared to be vested since that day. But the Revised Statutes, in 1830, went the entire length of abolishing the existing theory of socage tenures of every description, with their incidents, and declared that all lands within the State should thenceforth be held upon a uniform allodial tenure, vesting the entire and absolute property in the owners, ac- cording to their respective estates. At the same time they provided that no rents, or services certain, which had been at any time previous, or might thereafter be created or reserved, should be thereby taken away or discharged. This statutory provision has now, by the adoption of the Constitution of 1846, become a fundamental law of the State. INTRODUCTION. 9 § 10. Allodial estates have, in fact, no mark or incident of tenure attached to them, being enjoyed in absolute right ; while the term tenure employed by the statute implies the holding of an estate from some superior, and a subjection to an ulti- mate dominion, which, we have seen, is abolished except so far as is necessarily implied in the duty of allegiance to the State ; but the term is used in the statute in a popular sense for right or title, retaining the phraseology of English law without its significauce, and serves to show how tenacious a grasp the feudal principle has had on the public mind and policy, that its language must still be retained, although the thing itself has ceased to exist in any shape. § 11. If any feudal fiction or service can yet be supposed to remain in any part of the United States, it is believed to consist solely in the principle that lands may be held of a per- son to whom the payment of a determinate rent, or certain service instead of rent, is due, as to a lord paramount. But this wants the essential characteristic of a feud, since it exists only by virtue of an express and voluntary contract between the parties ; and, if retained at all, in any sense, received a most important modification by the Revolution of 1776, which transferred the entire domain, with the sovereignty of Great Britain, to the people of the United States. So that fidelity to the State is now the only fealty that any man owes for his lands; his only lord paramount is the people of the State where such lands are situated. § 12. All private title to land within the United States is derived ultimately, as we have seen, from grants of the State, or general government, or from royal grants which were made prior to the Revolution, and confirmed by those governments.^ These grants to the original proprietors — of which the manor lands in New York may be cited as instances ^ — were 1 Fletcher v. Peck, 6 Cranch, 87; Jackson v. Waters, 12 Johns. 365. * In this State certain purchasers, or, as they were variously called, patentees, patroons, or lords, early obtained from the British sovereigns letters- patent, granting large districts in the central regions of the Col- ony. Some of these proprietors, in a spirit of emulation then deemed 10 LAW OF LANDLORD AND TENANT. frequently of very large extent, and, from the inability of the proprietors to cultivate them, could have been of but little use to the owners, so long as they remained entire in their hands ; while the public would necessarily want that strength and security which land well peopled and cultivated invariably produces. Hence it became necessary and proper to subdivide these large tracts amongst those who would undertake to cul- tivate and improve the land, to the advantage, not only of the proprietor, but of the public. § 13. The return usually made by tenants employed in the cultivation of such land was an annual contribution of corn, cattle, or other produce ; or in the performance of some service, either in the family of the proprietor or upon the farms which he retained in his possession. In proportion, however, as agriculture improved and money increased, it was harmless and laudable, obtained permission from the Crown to erect manors within these districts, with certain political, judicial, and legisla- tive privileges and advantages, which have long since become obsolete. With reference to those advantages, however, they adopted a system of granting lands, not absolutely in fee-simple by deeds, but as qualified estates in fee-simple, by instruments which are commonly called leases, whereby the patroon or landlord reserved for his own use all water-power and mineral wealth. Perpetual rents were reserved; portions of which were paid in wheat and supplies for the table of the proprietor, and the residue in services or labor, to be performed by the tenants about his manor-house. Alienation by the tenants was restrained, unless with the lord's consent, to be obtained by paying to him one-quarter, or some other part of the purchase-money. The right to distrain for rent — a severe but not then unusual legal remedy — was incorporated in the leases, with stringent covenants for the payment of taxes and other pur- poses; and with various conditions securing to the landlord a right to re- enter and resume the land. However unwise for both contracting parties such conveyances may now seem, it ought to be remembered that, at the time of their institution, they were not at all anomalous, and they con- tributed to the settlement of extensive districts by an industrious popu- lation, who had not sufficient capital to become absolute purchasers of estates. The validity of these leases in fee, reserving a perpetual rent, the source of much angry litigation, has been at length definitely estab- lished by the court of last resort, in the cases of Van Rensselaer v. Hays, 19 N. Y. 68; and The Same v. Ball, ib. 100; Van Rensselaer v. Barrenger, 39 N. Y. 9. INTRODUCTION. 11 found that these services, although burdensome to the tenant, were of little advantage to the proprietor ; and that the pro- duce of a large estate could be much more conveniently dis- posed of by the farmers themselves who raised it, than by the landlord or his bailiff, who was formerly accustomed to receive it. A commutation was therefore made of rents for services, and of money for those in kind; and as men in a subsequent age discovered that farms were better cultivated where the farmer enjoyed a security in his possession, the practice of granting leases for a fixed period at length gen- erally prevailed. Such appears to have been the origin of farming leases, while in cities and towns, it is obvious, the investment of money in houses, whose rental will produce a convenient periodical income, naturally presents one of the most certain and regular returns for the employment of capi- tal, — conferring, at the same time, an important benefit upon men of moderate means, by enabling them to occupy hired houses and stores, and to devote the whole of such capital as they possess to the purpose of commerce. The terms and duration of possession, and the mode of enjoyment, in either case necessarily assume the shape of a contract, express or implied, which constitutes a lease; while the parties them- selves are placed in the relation of landlord and tenant. 12 THE CKEATION OP A TENANCY. [CHAP. I. CHAPTER I. THE CREATION OF A TENANCY. § 14. Arises from Lease or Demise. — Rent. — The relation of landlord and tenant subsists by virtue of a contract, express or implied, between two or more persons for the possession of lands or tenements, in consideration of a certain rent to be paid therefor. The contract itself is called a lease or demise, and is a species of conveyance for life, for years, or at the will of one of the parties, usually containing a reservation of rent to the lessor. The rent may consist in the payment of a cer- tain sum of money, or its equivalent, at particular specified periods during the term, or in one entire sum on the comple- tion of the contract. But a stated rent is not essential to the contract ; because, from favor, or for a consideration passing to the lessor at the time of its inception, a lease, beneficial in its nature to the lessee, may be made without any reservation of rent.i Independently of the idea of a contract, a lease also possesses the property of passing an interest, and thence > Hunt V. Comstock, 15 Wend. 667; Dolittle v. Eddy, 7 Barb. 74; 4 Cruise, 15; Orleans Theat. Ins. Co. v. LafEerranderie, 12 Rob. La. 472; Osborne v. Humphrey, 7 Conn. 340 ; Hooten v. Holt, 139 Mass. 54. An agreement that the tenant's occupation is to be rent-free may be implied from the circumstances attending the inception of the tenancy. Sherwin V. Lasher, 9 Biadw. (111.) 227. And the occupant's written acknowledg- ment that he holds the premises as tenant does not raise a presumption of jaw that he promises to pay rent, the promise to pay in such a case, implied from occupation and tenancy, being an inference of fact. Savings Bank v. Getchell, 59 N. H. 281. The agreement implied by a demise, that the lessee shall quietly enjoy the premises, is a sufficient consideration for the lessee's agreement to pay rent. Vernam v. Smith, 15 N. Y. 327; Whitney v. Lewis, 21 Wend. 131. But a promise by a tenant, holding under a lease by deed, to pay an additional sum for the use of a part of the premises, was held to be without consideration, and consequently void. Tryon v. Mooney, 9 Johns. 358. CHAP. I.J THE CREATION OF A TENANCY. 13 partakes of the nature of an estate, which, when limited to a certain period for the enjoyment of land, becomes a term for years ; but, if it depends upon the duration of a life or lives, rises to the dignity of a freehold.^ * The particular regard which the common law shows to the tenant of a freehold, and the preference given to him above a tenant for years, depends upon feudal principles which have no application to the condition of pociety under a republican government. In feudal times this estate was, perhaps, more valuable and permanent than an estate for years, as long terms were then unknown ; or more honorable, as a proof of military tenure, which embraced privileges only allowed to tenants of the King who took the oath of fealty — an oath which was never permitted to be taken by any whose estate was less than for life. But the statutes of New York and other States have modified this doctrine by making the interest of a lesseq an estate in land, and declaring it to be subject to the lien of a judgment, and liable to taxation, and to be sold under execution, the same as real estate. 1 N. Y. R. S. 722; Trustees, &c. v. Dunn, 22 Barb. 402; 7 Wend. 468 (though aliter in Ohio); Haz. Powd. Co. v. Loomis, 2 Disn. 544. Hence ejectment lies for it. Ollendorff v. Cooke, 1 Lansing, 37. It must also be foreclosed as realty, Griffin v. M. Co. Chicago, 52 111. 130; Patrick v. Littell, 36 Ohio St. 79; and gives the tenant such an interest in land as entitles him to redeem it from a prior lien, Averill v. Taylor, 8 N. Y. 44. An estate for years, however long, goes to the executor as personal assets of the testatoi-, and does not descend as real estate to the heir-at-law. 2 R. S. 82, § 6 ; Dillingham v. Jenkins, 15 Miss. 479 ; Ex parte Gay, 5 Mass. 419 ; Edwards v. Perkins, 7 Oregon, 149 ; Provost, &c. v. Dumfries, ^6 Ind. 172. And this is held to be the ' rule in Maryland, in the case of a lease for ninety-nine years, renewable forever, and therefore partaking of the nature of a perpetual interest, and capable of being made perpetual. Taylor ». Taylor, 47 Md. 295. The vendor of a term of years has no lien for unpaid purchase-money after he has parted with the possession, as if it were real estate. Cade v. Brownlee, 15 Ind. 369. Where a lessor devised the leased property to a trustee to collect the rents during the term of the lease, it was held that, after the lessor's death, the trustee might sue for arrears of rent accrued, as well before as after the lessor's death, the lessor's executor assenting. Shil- lingford v. Good, 95 Pa. St. 25. In Georgia, a lease is a chattel, and an estate for years realty. Code, §§ 2247, 2253. A grant of a term at a gross sum for rent was held to be real estate. In Massachusetts, under the general rule, it was held that an outstanding lease for years, as creating only a chattel interest, did not invalidate a policy of fire insurance for the lessor's benefit, in which the ownership of the assured was described as entire, unconditional, and sole. Dolliver v. St. Joseph Ins. Co., 128 Mass. 315; and see Insurance Co. e. Haven, 95 U. S. 242. 14 ■ THE CREATION OF A TENANCY. [CHAP. I. § 15. Term. — Interesse termini. — Entry Essential. — The estate of a lessee for years is called a term, terminus, because its duration is limited and determined ; for every such estate must have a certain beginning and a certain end. It is per- fected only by the entry of the lessee ; for, before the time fixed for entry, the whole estate remains in the lessor, and the lessee has strictly no estate in the land, but merely a right thereto which is called an interesse termini,^ an interest which, though assignable, cannot be the foundation of a release,- to operate by way of enlargement, from the lessor, nor qualify the owner to maintain an action of trespass or ejectment.'^ After the period fixed for the commencement of the lease, the lessee's interest is still called an interesse termini ; and although he cannot maintain trespass, if not actually in possession,^ he may maintain an action of ejectment ; * and has such an estate as may be divested by an adverse entry ; ° but not be the sub- ject of an eviction.® And though this interest will neither merge nor can be surrendered, because until entry the lessor's estate is not a reversion,^ yet the title will have passed from him to the lessee.* The lessee may enter at any time, notwith- * Williams i>. Bosanquet, 1 Brod. & B. 238 ; Co. Lit. 46, b ; Copeland v. Stephens, 1 B. & A. 593, 606. But it is otherwise where the instrument of demise takes effect under the Statute of Uses. Smith, Landl. & T. 12. And where the estate of the grantor is in reversion or remainder, the termor takes an immediate estate in a Reversionary term, and not an interesse termini merely. Doe v. Brown, 2 Ellis & B. 331. 2 Saffyn's Case, 5 Co. 123, b; Co. Lit. 46; 2 Bl. Com. 64, 144, 314. " A release to him before entry," says Littleton, "is void." In Wood v. Hubbell, 10 N. Y. 488, relief ip equity was granted to one entitled to an interesse termini, where the premises were destroyed by fire before the term began. See LaFarge v. Mansfield, 31 Barb. 845. » Co. Lit. 296, b; Wheeler v. Montefiore, 2 Q. B. 133; Litchfield v. Ready, 5 Exch. 939; Lowe v. Koss, ib. 553; Harrison v. Blackburn, 17 C. B. N. s. 678; Brewer v. Stevens, 13 Allen, 346, 350. * Gardner v. Keteltas, 3 Hill, 332; Trull v. Granger, 8 N. Y. 115; Whitney v. Allaire, 1 N. Y. 311; Tyler v. Heidorn, 46 Barb. 439, 455; Doe V. Day, 2 Q. B. 156 ; Ryan v. Clark, 14 id. 65 ; though otherwise in Pennsylvania; Sennett ti. Bucher, 3 Penn. 393. ^ Saffyn's Case, supra. ° Birckhead v. Cummings, 33 N. J. 44, 45. ' Doe V. Turner, 5 B. & C. Ill; Co. Lit. 338, a; ib. 270, a. 8 Chung Yow V. Hop Chung, 11 Oregon, 220. Thus in Ryan v. Clark, CHAP. I.j THE CREATION OP A TENANCY. 15 standing the death of his lessor, and after entry he becomes absolute owner of the premises for the term granted, the in- strument taking effect from the time of its execution. The entry of a lessee is not, however, necessary to entitle the lessor to sue for rent, since it becomes due by virtue of the contract, and not by reason of the entry ; except in the case of a ten- ancy at will, where rent becomes due only in consequence of the occupation.^ § 16. Term, Assignment of. — Under-lease. — A term signifies not only the limitation of time, or period granted to the lessee, for the occupation of the premises, but it includes also the estate and interest in the land that pass during such period. The words " lease " and " demise " are often used to signify the estate or interest which is conveyed, but they properly apply to the instrument or means of conveyance. And it is essen- tial to a lease that some reversionary interest be left in the lessor ; ^ for if by an instrument purporting to be a demise, he parts with his whole interest in the premises, or makes a lease for a period exceeding his own term, it will, in either case, amount to an assignment of the term.^ But if a lessee disposes of the term granted to him, reserving any portion thereof, supra, a tenant holding over was allowed to maintain trespass against his le-ssor for entry on his premises after a demise to a third party, Patteson, J., saying: " The interest and legal possession, when the term is commenced immediately, and not in the future, vests in the lessee before entry." So in L'Huissier v. Zallee, 24 Mo. 12, the right to have summary process against a first lessee who held over, vested in the second lessee. 1 Bellasis v. Burbrick, 1 Salk. 209; Hardy ». Winter, 38 Mo. 106. Hence lessee under a parol lease in futuro is liable for rent and not for damages only. Becar v. Flues, 64 N. Y. 518. But see Caldwell v. Centre, 30 Cal. 539, 542. The time between the making of the lease and that for its commencement in possession, is no part of the term granted by it. Young V. Dake, 5 N. Y. 463. 2 Harker v. Birkbeck, 3 Burr. 1556; 1 Black, 482. » Pluch V. Digges, 5 Bligh, n. s. 31; Hicks v. Downing, 1 Ld. Ray. 99. Where an instrument purported to lease and convey, for a fixed annual rental, for a term of years, all the coal under certain lands, it was held to be a mining-lease and not an absolute grant of the coal. Austin v. Huntsville &c. Co. 72 Mo. 535. 16 THE CREATION OP A TENANCY. [CHAP. I. however small, the instrument will operate as an under-lease.^ And the materiality of the distinction consists in this, that, while an assignee is liable to the original lessor for all the obligations of the lessee, bj virtue of the privity of estate that subsists between them, no action can be maintained by the lessor against an under-tenant, upon any covenant contained in the lease, since there is neither privity of estate, nor of contract between himself and the sub-lessee.^ 1 Van Rensselaer v. Gallup, 5 Den. 454. Thus Piggott v. Mason, 1 Paige, 412; Davis v. Morris, 36 N. Y. 569, where the last day was reserved ; Crusoe v. Bugby, 3 Wils. 234, where three months. So where sub-lessee covenants to redeliver on the last day. Collamer v. Kelley, 12 Iowa, 319; Martin v. O'Connor, 43 Barb. 514; Kearney t>. Post, 2 N. Y. 394. In Linden v. Hepburn, 3 Sandf. 668; People v. Robertson, 39 Barb. 9, — reservation of rent and right of re-entry were held a sufficient reversion, but this last case is maintainable on another ground, and the former is contrary to settled authority, 2 Preston, Conv. 124; Doe v. Bateman, 2 B. & A. 168, where right of re-entry, and WoUaston v. Hake- will, 3 Scott, N. R. 616, and Townsend v. Read, 15 Abb. N. C. 285, where greater rent was reserved. 2 In Texas the rule stated is statutory; Pasch. Dig. Arts. 5027, 5028. See Gibson v. Mullican, 58 Tex. 430; Le Gierse v. Green, 61 id. 128. The doctrine of the text seems established in England after considerable variance in the cases. These cases have generally arisen between the lessee and the party to whom he has transferred his whole term by an instrument in form a demise, and the former has been Jield to have no reversion left or any right derivable therefrom, such as the right to dis- train. The contrary doctrine maintained in Pluck v. Digges, 2 Hud. & Br. 1, and King v. Wilson, 5 Mann. & R. 157, note, is now overruled. Pluck B. Digges, 5 Bligh, n. s. 31; Parmenter v. Webber, 8 Taunt. 593; Fitzgerald v. O'Connell, 1 Jo. & Lat. 134, 156; Hicks v. Downing, 1 Ld. Ray. 99; Preece v. Corrie, 5 Bing. 24. In Langford v. Selmes, 3 Kay & J. 220, the doctrine contended for in 5 Mann. & R. 157, n., that tenure may still subsist between lessee and his transferee without a reversion in the former, is controverted ; and in WoUaston v. Hakewill, supra, such a transferee was held liable to the lessor in an action of covenant for rent, and in Beardman v. Wilson, L. R. 4 C. P. 57, on the covenant to repair. But it seems equally well settled that if the parties intend a lease, the relation of landlord and tenant, as to all but strictly reversionary rights, will arise, though the lessee demises his whole term. In Poulteney v. Holmes, 1 Stra. 405, such a transfer was held to be a lease because void as an assignment. This was affirmed in Preece v. Corrie, 5 Bing. 24, in Baker v. Gostling, 1 Bing. N. C. 19, where the rent reserved was held technically rent, and barred by an eviction, and in Pollock v. Stacy, 9 CHAP. I.] THE CEBATION OF A TENANCY. 17 § 17. Demisable Property, what. — As to what property may be demised, it is a general rule that anything corporeal or incorporeal, lying in livery or in grant, may be the subject of a demise. And, therefore, not only lands and tenements, but conmions, ways, watercourses, fisheries, franchises, es- tovers, annuities, rent-charges, and all other incorporeal here- ditaments, are included in the common-law rule.^ A railway company may also lease its franchises and property, by au- Q. B. 1033, where an action of use and oooupation was held to lie. But this case is doubted in Beardman v. Wilson, supra. So on such a demise ejectment lies. Doe v. Bateman, 2 B. & A. 168; Hogan v. Fitzgerald, 1 Hud. & Br. 77, n. ; "Walsh v. Feely, Jones (Ir.), 413; or debt or cove- nant for rent. Baker v. Gostling, supra; Ards v. Watkin, Cro. El. 637, 651; "Williams v. Hayward, 1 Ellis & E. 1040. In the United States the law seems to be the same, and while the right of distress is gone, Rags- dale V. Estis, 8 Rich. 429; Prescott v. Deforest, 16 Johns. 159; and the landlord may have covenant for rent against such sub-lessee, Constantine V. Wake, 1 Sweeny, 239 ; a.nd the term returning, though by demise, to the lessor, merges, for want of a reversion, Shepard v. Spaulding, 4 Mete. 416; Smiley v. Van "Winkle, 6 Cal. 605; yet the lessee may create the relation of landlord and tenant without retaining a reversion, Tyler v. Heidorn, 46 Barb. 439; "Van Rensselaer v. Hays, 19 N. Y. 68; Same v. Read, 26 id. 576; may have ejectment. Same v. Slingerland, ib. 580; Tyler v. Heidorn, supra; covenant or debt for rent, Patten v. Deshon, 1 Gray, 325; Demarest v. "Willard, 8 Cow. 206; "Willard v. Tillman, 2 Hill, 274; "Wallace v. Harmstad, 44 Pa. St. 492; or summary process, see Shumway v. Collins, 6 Gray, 227; Blumenberg v. Myers, 32 Cal. 93. So Den V. Post, 1 Dutch. 285, where a covenant not to underlet was held to include an under-lease for the whole term. In "Wisconsin, by R. S. § 2189, it is provided that an action for rent may be maintained by the lessor against any party who has entered under the lessee and is found in possession of the premises. See "Wittman v. Milwaukee &c. Railway Co. 51 "Wis. 89. The effect of a demise by the lessee of his whole term is, therefore, to divest him of his reversionary rights, and render his lessee liable as assignee, to the lessor; but at the same time the relation of land- lord and tenant is created between the parties to the demise if they so intended. 1 Shep. Touch. 268; Bac. Abr. Leases (A); Commonwealth u. "Weather- head, 110 Mass. 175; Eastham v. Anderson, 119 irf. 526; Momll v. Mack- man, 24 Mich. 279; Comm'rs v. Clark, 38 N. Y. 251; Taylor ii. Beebee, 3 Rob. N. Y. 262. Turpentine trees are the subject of a lease. Rooks V. Moore, Busb. N. C. 1. So growing timber, grass, &c. Freeman v. Underwood, 66 Me. 229. VOL. I. — 2 18 THE CEBATION OP A TENANCY. [CHAP. I. thority of the Legislature.^ So goods, and other personal chattels, may be demised ; but, although rent cannot be said, technically, to issue out of them, the contract for its payment is valid, and an action for rent in arrear may be maintained upon such leases ; while the lessee is liable at the end of the term for the non-delivery of the articles themselves, or their value, as any other bailee.^ But the attempt of the tenant to sell any of them, determines the tenancy as to such articles, and the general owner may sue either the tenant who sold the property, or the purchaser in trover, for a return of the things themselves.^ 1 Black V. Del. & Rar. Canal Co., 7 C. E. Green, 130; Troy & Rutland R. R. Co. V. Kerr, 17 Barb. 601; Commonwealth v. Smith, 10 Allen, 455. If a railroad is leased by its owners to one who assumes the duty of re- pairing it, such owners still remuin liable to third parties, who may be injured by the defective condition of the road. Hamden v. New Haven & Northampton Co., 27 Conn. 164. 2 Zule V. Zule, 24 Wend. 76. But in Fay v. HoUoran, 35 Barb. 295, the technical rule was applied, and on lessor's decease no apportionment of rent was allowed for stock, parcel of the demise, because rent issues only from land. So in Sutliff v. Atwood, 15 Ohio, n. s. 186, the assignee of a lease of lands and stock was held liable for the whole rent, though he did not get the stock. Spencer's Case, 5 Co. 16, 3d resolution; New- man V. Anderton, 5 B. & P. 224; Farewell v. Dickinson, 6 B. & C. 251; Salmon v. Matthews, 8 M. & W. 827; Morris v. Tillson, 81 111. 607; Armstrong v. Cummings, 20 Hun. 313. The contrary doctrine was laid down in Mickle v. Miles, 81 Pa. St. 20 ; and rent from chattels held distrainable. So in Newton v. Wilson, 3 Hen. & M. 470, rent from chattels, parcel of the demise, was held apportiona- ble; and as no eviction can take place from a part of demise from which no rent flows, post, § 385, it would be absurd that on a demise of a farm valuable only for the stock, or of a shop for its machinery, the lessor might take the stock or machinery, and the lessee be still held for the rent. 3 Swifts. Mosely, 10 Vt. 208; 28 id. 1; Farrant v. Thompson, 5 B. & A. 826; Billings v. Tucker, 6 Gray, 368. If the object of the demise is special, as to bore wells for salt, and the lessee brings oil to the surface, it belongs to the owner of the soil. The lessee is not in such case bound to collect the oil for the owner, he may let it run to waste; but if he does collect it, and appropriates it to his own use, he must account for it to the owner. Petersen v. Kier, 2 Pittsb. Pa. 191. The sale of a leasehold interest is to be constnied strictly, and a written contract selling a "lease " does not carry with it oil that had theretofore been pumped from oil wells on the leased premises. McGuire v. Wright, 18 W. Va. 507. CHAP. I.] THE CREATION OP A TENANCY. 19 § 18. Personal Chattels upon the Land, ho'w demisable, — It is frequently found convenient, also, to include in the contract of lease the sheep or other live-stock, and farming imple- ments upon land, or the furniture and other chattels of a house, and they have hence, to a certain degree, acquired demisable qualities ; although the interest which passes to a lessee of such things is very different from that which is transferred by the lease of a house, land, or other heredita- ment. The lessee has the use of them during the term, and may be restrained from destroying, selling, or giving away any part of them ; but the lessor's reversionary interest is considered of so precarious a nature as to be accounted in law a mere possibility.^ No lease or grant can, consequently, be made of them, during or after a term in possession, until the lessee has redelivered them. In 'case of a lease of live-stock, the absolute property of such as die vests in the lessee ; as also do the calves, lambs, or other produce of such stock, which are considered to be profits, severed from the principal object of demise in compensation for "the rent paid by the lessee.^ It is the usual practice in such leases to annex a- schedule of the several articles proposed to be included in the demise, and to insert a covenant upon the part of the lessee, to redeliver them at the end of the term ; and without such covenant the lessor is said to have no other remedy at law but trover or detinue for them, after the lease is ended.^ 1 He cannot maintain either trover or trespass for them pending the lease. Trisany v. Orr, 49 Cal. 612. 2 A lease of a farm for five years, with the cows and sheep thereon, con- tained a provision that cows and sheep of equal age and quality should be returned at the expiration of the lease. Held that, during the con- tinuance of the lease, the cattle belonged to the lessee, and might be taken on execution for his debts. Carpenter v. Griffin, 9 Paige, 310. 8 Putnam v. Wyley, 8 Johns. 432 ; Newton v. Wilson, 3 Hen. & M. 470; Co. Lit. 57, a; Spencer's case, 6 Co. 16, b; Billings v. Tucker, 6 Gray, 368. Where cattle were leased for a term of years, to be taken back by the owner within the term if he should think them unsafe in the hands of the lessee, held that the lessor could not reclaim them until after fair notice given. Wyman v. Dorr, 3 Me. 183. An agreement by the lessor to convey chattels, included in the lease, to the lessee, at the end of the term, upon due performance of the lessee's covenants, is a condi- 20 THE CEEATION OF A TENANCY. [CHAP. I. SECTION I. A TENANCY BY IMPLICATION. § 19. When implied; generally. — The relation of landlord and tenant may be created by implication or by express con- tract. The law will, in general, imply the existence of a tenancy wherever there is an ownership of land on the one hand, and an occupation by permission on the other ; for in such cases it will be presumed that the occupant intended to pay for the use of the premises.^ It will be implied, in many cases, where there has been no distinct agreement between the parties, or where, from various causes, the agreement may have Qeased to be operative. Thus, the permissive occupation of premises previous to or pending the execution of a, lease, or the payment of rent under an invalid agreement, are circum- stances from which this relation will be implied, sufficient to authorize the collection of subsequently accruing rent.^ And, tional sale, and the title to the chattels remains in the lessor till the end o£ the term. Bean v. Edge, 84 N. Y. 510. ^ It is held that the presumption thus created is not a presumption of law. Savings Bank v. Getchell, 59 N. H. 281. But it is also held that one entering into possession with full notice of the rent demanded is under contract obligation to pay such rent although he refuse to do so, or declares that he will pay only under protest. Thompson v. Sanborn, 52 Mich. 141. The payment and receipt of rent are the strongest evi- dence to establish the existence of a tenancy. Doe v. Jefferson, 5 Houst. 477. A mother's occupation of her son's house is presumed to be on con- dition that she shall pay rent. Harlan v. Emery, 46 Iowa, 538 ; and see Doe V. Jefferson, supra. One who is in as servant of the owner, but is permitted by the owner to sublet to another, becomes thereafter a tenant and not a servant. Snedaker v. PoweU, 32 Kan. 396. 2 Hammerton v. Stead, 3 B. & C. 478; Dunne v. Trustees, 39 lU. 578; Pinero v. Judson, 6 Bing. 206; Anderson v. Midland R. R., 30 L. J. Q. B. 94; Larned v. Hudson, 60 K. Y. 102; Gustin v. Burnham, 84 Mich. 50. But where the occupation is without the owner's consent, no tenancy arises. Ackerman v. Lyman, 20 Wise. 454. A notice to quit is a recog- nition of an existing tenancy. Doe v. Miller, 2 C. & P. 348. An occu- pant is one who has the actual use or possession of a thing ; and occupancy implies the exclusion of every one else from enjoyment. Redfield v. Utica SBO. I.J BY IMPLICATION. 21 if a man enters upon land under a void lease, he cannot be treated as a disseisor, but becomes a tenant at will, and can only be removed after notice.^ So the taking of the key of a house, for the purpose of occupying it, but without going into actual occupation, has been held to imply a tenancy .^ The relation is also created by statute between a grantee of the reversion, and the lessee of the grantor, of premises, which are under lease at the time of the conveyance ; ^ and is held to exist as between the grantor and grantee of a conveyance in fee, which reserves rent, and applies to each subsequent as- signee of the land so conveyed.* And, as a general rule, it may be stated that the mere occupation of land, with the owner's concurrence, will enure as a tenancy from year to year, or at will, according to circumstances, determinable at the pleasure of the owner.^ & Sy. K. E., 25 Barb. 54. Thus in the case of mutual depasturing of land by the parties, there is no tenancy to be implied between them, it being a case of mutual licenses granted by each party to the other. Stone V. Wait, 50 Vt. 663. * Digby V. Atkinson, 4 Camp. 275; Denn v. Fearnside, 1 Wils. 176; Doe V. Watts, 7 T. R. 83. 2 Little V. Martin, 3 Wend. 219. 8 Funk V. Kincaid, 5 Md. 404; and see, post, §§ 180, a, 295, 441. * Van Rensselaer v. Smith, 27 Barb. 104; Same v. Hays, 19 N. Y. 68; post, §§ 50, 295. 6 Boudette v. Pierce, 50 Vt. 212; Vetter's Appeal, 99 Pa. St. 52; Marvel v. Ortlip, 3 Del. Ch. 9; Cressler v. Cressler, 80 Ind. 366; Oxford V. Ford, 67 Ga. 362; Towery v. Henderson, 60 Tex. 291; Hulett r. Nugent, 71 Mo. 132 ; Ellsworth v. Hale, 38 Ark. 633. A tenancy does not exist as between the owner of land and one who, at his invitation, and without any agreement as to rent, has occupied it. Strickland V. Hudson, 55 Miss. 235. So where the occupant is put in possession for the benefit of the owner, and retains possession tiU notified to quit. Middleton's Ex'rs. v. Middleton, 35 N. J. Eq. 141. Any person entering into demisable premises by the consent or connivance of the tenant becomes a tenant, at the option of the landlord. Benson v. Bolles, 8 Wend. 175; Jackson v. Miller, 6 id. 228; Graves v. Porter, 11 Barb. 592. See Hall v. West. Transp. Co., 34 N. Y. 284. If he enters into possession of vacant premises which have been previously demised by the consent of the tenant, he will be considered, in respect to the land- lord's rights, to have been substituted in place of the tenant, although he may disclaim all privity with the landlord. Bacon v. Brown, 9 Conn. 358; Howard v. Ellis, 4 Sandf. 369. But see Jackson v. Howry, 30 Ga. 22 THE CEEATION OF A TENANCY. [CHAP. I. § 20. Implied from special Circumstances. — The intention to create a tenancy may also be inferred from a variety of other circumstances ; as where lands descended to an infant, with respect to whom the tenant in possession was a trespasser, and an action of ejectment was brought and compromised by the infant's attorney upon certain terms, one of which was that the tenant should attorn to the infant, a tenancy was held to have been thereby created, although the infant had not assented to it, nor received rent since he came of age.^ And a similar result was said to have been produced where a feme covert lived separate from her husband, and received to her separate use the rents of certain lands, which came to her by devise, after separation ; for it was presumed that she re- ceived such rents by her husband's authority, and accordingly held that he could not maintain ejectment, at least before giving notice to the tenant to quit.^ So where the owner of a house agreed that his creditor might occupy it for a year, and until he paid a mortgage held by the creditor ; and also where a man entered under an agreement to accept a lease for a cer- tain period, at a specified rent, but subsequently refused to 14; Moore v. Calvert, 6 Bush, 356. Where a tenant for years made a conveyance in fee, of the premises, under which the grantee entered, the latter was held to be in as assignee of the tenant, Jackson v. Davis, 5 Cow. 123; for a deed conveys only the interest of the grantor. 1 N. Y. R. S. 739, § 143; Doe w. Brown, 8 East, 165. An action for use and occupation of premises may arise from the mere waiver of a tort, or the simple letting into possession. Per Patterson, J., in Church v. Imp. Gas Light Co., 6 Ad. & E. 854. 1 Doe V. Noden, 2 Esp. 530. A party entered into possession of prem- ises under an agreement for a lease at a certain rent, and occupied them more than a year, but paid no rent; an account was afterwards delivered to him by the landlord charging him with half a year's rent, the amount of which he at first disputed, but admitted that half a year's rent was due, and named the amount, and the account was altered accordingly. Held, that a yearly tenancy might thereby be implied, and that the land- lord had a right to distrain. Cox w. Bent, 2 M. & P. 281 ; 5 Bing. 185. ^ Doe u. Biggs, 1 Taunt. 867. A parol demise from one of three joint grantees to his co-grantees, was held to be implied from the facts, that he paid none of the purchase-money, claimed no title, and exercised no control over the premises for forty years. Webster v. Holland, 58 Me. 168. SEC. I.] BY IMPLICATION. 23 accept it, — in each case the relation of landlord and tenant was held to exist.^ § 21. No Implication from mere Occupancy. — But the mere occupancy of property does not necessarily imply the relation of landlord and tenant, for if no rent has been paid, and no con- current act of the parties, or other circumstance exists, from which consent to a tenancy on the part of the owner may be inferred ; or if the consent was conditional and has since been forfeited, a tenancy cannot arise from mere occupation.^ And if a man gets possession of a house without the privity of the owner, although the parties may afterwards enter into a nego- tiation for a lease, but differ about the terms, and the negoti- ation goes off ; or if, after being let into possession, under an agreement to sign a written lease, and find surety for the rent, he does neither ; no species of tenancy is created, but the occu- pant, in either case, becomes a mere trespasser.^ 1 Hunt ji. Comstock, 15 Wend. 665; Anderson v. Prindle, 23 id. 616; and one who enters under an occupancy apparently permitted by the land- lord may claim to be treated as tenant. Marquart v. Lafarge, 5 Duer, 559. An instrument conveying premises to the gi-antee for the purpose of mining coal so long as there is coal to mine thereon, with provisions for bank rents, and forfeiture for non-compliance ■with its terms, was held to be a lease, and not a contract in the nature of a servitude. Gartside y. Outley, 58 111. 211. 2 Rich V. Bolton, 46 Vt. 84; Edmonson v. Kibe, 43 Mo. 146; Jordan w. Mead, 19 La. Ann. 101; Cook v. Norton, 48 111. 20; Williams v. Deriar, 31 Mo. 13; Leonard v. Kingman, 136 Mass. 123. The use of the unim- proved bank of a river, in mooring rafts, does not create this relation between the riparian owner and the proprietor of the rafts. Hall v. Jacobs, 7 Bush, 595 ; and there can be no recovery for use and occupation. Stew- art V. Finch, 2 Vroom, 17. But a person so holding is not a trespasser without a demand and refusal. Carson v. Baker, 4 Dev. 220. « Doe ». Pullen, 2 Bing. (N. C.) 749; Doe v. Quigley, 2 Camp. 505; Doe V. Cartwright, 3 B. & A. 326; Fisk v. Moores, 11 Rob. La. 279. In McEldery v. Flanagan, 1 H. & G. 308, a second lessee of premises, pending a first lease, was held not tenant of the first lessee by mere notice from him. In Howard v. Carpenter, 22 Md. 10, one who had received a license from a cestui que trust authorized to lease, but had paid no rent, was held liable to be ejected by the trustees without notice or demand. In Doe v. Butt, Walm. & H. 3, a party let in on condition of finding security, was 24 THE CEEATION OK A TENANCY. [CHAP. I. § 22. Implication from Tenants holding over. — A tenant for years who holds over after the expiration of his term without paying rent or otherwise acknowledging a continuance of the tenancy, becomes either a trespasser or a tenant, at the option of the landlord. Very slight acts on the part of the landlord, or a short lapse of time, are sufficient to conclude his election and make the occupant his tenant.^ But the tenant has no such election ; his mere continuance in possession fixes him as tenant for another year if the landlord thinks proper to insist upon it.^ And the right of the landlord to continue the tenancy will not be affected by the fact, that the tenant refused to renew the lease, and gave notice that he had hired other premises.^ In Massachusetts and in some of the other New England States where tenancies from year to year are unknown, a tenant holding over is said to be in merely by sufferance. He remains a trespasser, and can only become a held no tenant after tyro years' stay. In Kerrains v. People, 60 N. Y. 221, a servant on ceasing to occupy as such was held not to become at once a tenant. So, on the other hand, if the owner agrees to give a lease and the tenant enters, but the owner then refuses, and tenant quits, he is not liable for use and occupation. Greton v. Smith, 33 N. Y. 245. The relation of landlord and tenant can only arise where he who is in posses- sion has, by some act or agreement, recognized the other as his landlord, and taken upon himself the chai-acter of a tenant under him, so that he is not at liberty afterwards to dispute his title. Per McCoun, J., in Ben- jamin V. Benjamin, 6 N. Y. 388. 1 Eowan v. Lyfcle, 11 Wend. 619; Giles v. Comstock, 4 N. Y. 270; Den V. Adams, 7 Halst. 99; Adams v. Decker, 6 id. 84; Townley v. Rutan, Spen. 604; Clinton Wire Cloth Co. v. Gardner, 99 111. 151. The rule will not apply when the tenant holds over with the landlord's consent, as pending negotiations for a new lease. Smith v. Alt, 7 Daly, 492; s. c. 4 Abb. (N. C.) 205. Nor to the case of tenancy of personal property. Chase v. Sec. Ave. K. R. Co., 97 N. Y. 384. 2 Conway v. Starkweather, 1 Den. 113; approved in Witt v. New York, 5 Rob. (N. Y.) 248 ; 6 id. 441. And see Vrooman v. Kaig, 4 Md. 450; Moore v. Beasley, 3 Ohio, 294; People v. Paulding, 22 Hun, 91; Elwood V. Forkel, 35 id. 202; Wolffe v. Wolffe, 69 Ala. 549. The rule is embodied in the statutes of Kansas^ G. S. c. 55, § 2 ; and see Adams Exp. Co. B. McDonald, 21 Kan. 680. 8 Schuyler v. Smith, 51 N. Y. 309; Bacon v. Brown, 9 Conn. 334; HemphiU v. Flynn, 2 Pa. St. 144; McGregor v. Kawle, 57 id. 184; Noel V. McCrory, 7 Coldw. 623. SEC. I.] BY IMPLICATION. 25 tenant by mutual agreement.^ But when mutual consent is required, the occupant of a house by submitting to a distress for rent, which is stated in the notice of distress to be due by him to the person distraining, has been held to acknowledge a tenancy from that person^^ And where a tenant, after the expiration of his term, remained in possession, claiming to hold until the landlord should pay him the appraised value of the improvements he had made during the term, which by a provision of the lease the landlord was bound to do ; he was held not to be discharged from the payment of rent, but to come under the general rule, that a tenant holding over after the expiration of his lease, with the consent of the landlord, 1 Edwards v. Hale, 9 Allen, 462; Ellis v. Paige, 1 Pick. 43; Withers v. Larrabee, 48 Me. 570; so Ackerman v. Lyman, 20 Wise. 454, one enter- ing without owner's consent cannot be held by him as tenant at his elec- tion. Russell V. Fabyan, 34 N. H. 218, where the tenant held over, and the court say, " the reply of the tenant negatives any consent on his part to remain as tenant." And such seems to be the law in England, for in the leading case, Sight v. Darby, 1 T. E. 159, 162, Ld. Mansfield says, " If there be a lease for a year and by consent of both parties the tenant continues, they are supposed to have renewed the old agreement, which was for a year." In Ibbs v. Richardson, 9 Ad. & E. 849, the tenant holding over was sued for a year's rent as holding from year to year, but held liable only for time he had occupied. So Cobb v. Stokes, 8 East, 358; Levi v. Lewis, 6 C. B. n. s. 766; and untU such agreement the tenant is liable only for the time he occupies. So also per Patterson, J., Church V. Gas Co., 6 Ad. & E. 854. ^ Panton v. James, 3 Camp. 372. So a holding over after a notice from his landlord that if tenant remains it will be at certain terms, is an acceptance of those terms. Griffith v. Knisely, 75 111. 361. So a tenant holding over under a treaty for a lease is at will, not sufferance. Em- mons V. Scudder, 115 Mass. 367. Payment of a quarter's rent, by a person in actual occupation, is evidence of a yearly tenancy, at the rent proportioned to the quarterly payment. Morris v. Mies, 12 Abb. Pr. 103 ; Richardson v. Langridge, 4 Taunt. 128 ; Knight v. Benett, 3 Bing. 361. But see Blumenberg v. Myers, 32 Cal. 93; Stoppelkamp v. Mangeot, 42 id. 307 ; Skaggs v. Ekers, 45 id. 154, that the only tenancy is for the period for which the rent was actually paid, or agreed to be paid. Where a mortgagee, notwithstandiUg a former lease of the property, acknowl- edged himself to be in possession, and promised to pay rent, he was held to have thereby created the relation of landlord and tenant. Goodman v. Jones, 26 Conn. 264. 26 THE CREATION OP A TENANCY. [CHAP. I. becomes a tenant from year to year, subject to the terms and conditions of the original lease.^ § 23. Tact of, not conclusively presumed from Receipt of Rent. — But the receipt of rent is only a primd facie acknowl- edgment of the existence of a tenancy, and is always subject to explanation ; for where the amount received does not appear to have been paid as rent, or bears but a small proportion to the annual value of the premises, the rule does not apply .^ And if a lease is not void, but voidable only, the receipt of rent under 1 Holsman v. Abrams, 2 Duer, 435. The landlord is subject to the same rule, and can recover no more than the rent originally reserved. He is not entitled to an increased rent, proportioned to the increased value of the premises. Holsman v. Abrams, supra. Where the tenant holding over paid during a part of the time of such holding a rent greater than that reserved in the lease, it was held, notwithstanding, that the con- tinuance of the occupation, and the payment and receipt of rent implied a renewal of the lease from year to year upon the same terms, save as modified as to amount of rent, and that the lessee might avail himself of the benefits of the covenants contained in the original lease. Clarke V. Howland, 85 N. Y. 204. But notice being given to the tenant that if he occupied beyond the subsisting term he must pay an increased rent, naming the sum, the tenant, although he held over, was held not bound to pay the increased rent unless he assented. But such assent will be inferred if he holds over and remains silent. Galloway v. Kerby, 9 Bradw. (Ill-) 501. As to the distinction between a " holding over " and a " re-letting," provided for in the lease, as affecting the covenants contained in the lease, see Moseley v. AUen, 138 Mass. 81. It is a ques- tion of fact whether a temporary and partial occupation of the premises after the expiration of the lease amounts to a renewal. Elevator Co. v. Brown, 36 Ohio St. 660. " Right V. Bawden, 3 East, 260; Den v. Rawlins, 10 East, 261; Claridge v. Mackenzie, 4 M. & G. 143; Doe v. Baston, 11 Ad. & E. 307; Doe V. Brown, 7 id. 447. It is a question for a jury to determine whether the payment made was intended as an acknowledgment of a tenancy. Doe V. Wilkinson, 3 B. & C. 413. Where payment of rent unexplained would ordinarily imply a yearly tenancy, it is open to the payer or receiver of such rent to prove the circumstances under which the payment was made, for the purpose of repelling such implication. Doe v. Crago, 6 C. B. 90. The party paying is always at liberty to explain the payment. Doe V. Francis, 2 M. & Rob. 57. To create a yearly holding the payment must be in reference to such a holding. Braythwayte v. Hitchcock, 10 M. & W. 494. SEC. I.] BY IMPLICATION. 27 it does not create a new tenancy, although it may establish a former one.^ Nor will a new tenancy be created by a mere agreement for an increase of rent in the middle of a term.^ In general, however, if rent is not paid and received as such, but stands upon some other consideration, it will not be con- sidered as evidence of a design to establish a tenancy.* § 24. Mere Joint Occupancy, or Occupancy on Shares not a tenancy. — A mere participation in the profits of land with a joint occupation, or an occupation which does not exclude the owner from possession, will not amount to a tenancy.* This was held in a case where the provisions of an agreement between the defendant and a hotel company were, that the defendant should reside with his family in the hotel, free of charge for board, conduct the same in the manner contem- plated by the, parties, and have the exclusive management thereof, and that the furniture, at the end of the term should be restored to the company by the defendant.^ Nor does I Doe V. Banoks, 4 B. & A. 401. * Doe V. Kendrick, cited in Adams Eject. 129 ; Geekie v. Monk, 1 Car. & K. 370; 5 Q. B. 841. Nor will a verbal license by a tenant to the landlord for the occupation by the latter of part of the demised premises at a certain rate, vai-y a -written agreement between them as to the amount of rent. Hilton v. Goodhind, 2 C. & P. 591. And where there was a letting by two tenants in common, at an entire rent, and one of them afterwards gave notice to the lessee to pay a moiety of the rent to him, it was held to be a question for a juiy to determine whether the notice created a new contract, or only made an alteration in the mode of receiv- ing rent. Powis v. Smith, 5 B. & A. 850. « Right V. Bawden, 3 East, 260; Den v. Rawlins, 10 id. 261. The payment of rent, to constitute a tenancy, must be made by the party in the capacity of tenant. Strahan v. Smith, 4 Bing. 91. And its mere payment is no evidence of any particular manner of holding. Phillips v. Mosely, 1 C. & P. 262. * Burgie ». Davis, 34 Ark. 179; Shields v. Purnell, 64 Ala. 504. But now, in Alabama, under Code, §§ 3474-78, renting on shares creates the relation of landlord and tenant. See Wilson v. Stewart, 69 Ala. 302. 6 State V. Page, 1 Spear, 408. To the same effect is Walker v. Fitts, 24 Pick. 191 ; Johnson v. Carter, 16 Mass. 443. One staying at an inn or hotel is a guest, and not a tenant. Bac. Abr. tit. Inn, v;. 5, 6. A contract for board and lodging at a hotel or boarding-house does not creatl'the relation of landlord and tenant. Wilson v. Martin, 1 Den. 28 THE CREATION OF A TENANCY. [CHAP. I. permission to a laborer and his wife to occupy a house on the farm where they are at work, in part compensation for services, create that relation.^ So, if land is agreed to be cul- tivated wpon shares, it does not amount to a lease with rent to be paid in produce ; for the possession of the land remains in the owner, and the parties are merely tenants in common of the crop.2 If, however, the lessee agrees to pay a certain part of the crop expressly as rewt^ or if he holds the land with the usual privileges of an exclusive enjoyment, it creates a tenancy for the time agreed upon, though the land may have been taken to cultivate on shares.* So the technical form 602; post, § 66. So in Fank v. Haldeman, 53 Pa. St. 229, a deed con- veying the right to enter and prospect mines, with exclusive right to one acre round each mine, was held not to exclude the owner, and to be no lease, but a license only. 1 Haywood v. Miller, 3 Hill, 90; People v. AnniS, 45 Barb. 304; McQuade v. Emmons, 9 Vroom, 397; Doyle v. Gibbs, 6 Lans. 180; Sutherland v. Carter, 52 Mich. 471. He occupies as a servant and not as tenant, and the possession is that of the master. Kerrains v. People, 60 jST. Y. 221 ; and see Smith v. Rice, 56 Ala. 417. 2 Oakley o. Schoonmaker, 15 Wend. 226 ; Maverick v. Lewis, 3 McCord, 211; Bradish v. Schenck, 8 Johns. 151; Edgar v. Jewell, 5 Vroom, 259; Daniels v. Brown, 34 N. H. 454; Warner v. Hoisington, 42 Vt. 94. Authority to dredge for oysters is a license, and not a lease passing the possession. Colchester v. Brooke, 7 Q. B. 339. So where a person employed in a particular capacity is permitted to occupy a house as incidental thereto, for which a sum is deducted from his wages, he cannot on being dismissed from employment be regarded as a tenant. Hunt V. Colson, 3 Moore & S. 790. But see Hughes v. Chatham, 5 M. & G. 54. Defendant agreed to build houses on the plaintiff's land and procure tenants for the same at a given rate, and himself pay the rent till he so procured tenants. Held, that under this contract no tenancy was created between the parties. Taylor v. Jackson, 2 C. & K. 22. In Curtis V. Cash, 84 N. C. 41, an arrangement by which A. was to furnish land, team, and feed therefor, and B. was to devote his time and attention to the cultivation of the land and pay expenses, the gross products to be divided, was held a partnership. But see Day v. Stevens, 88 id. 88. ' Hoskins v. Rhodes, 1 Gill & J. 266 ; Newcomb v. Agan, 2 Johns. 421; Alwood u. Euckman, 21 111. 200; Durant v. Taylor, 89 N. C. 351. * Jackson v. Brownell, 1 Johns. 267; Tuttle v. Bebee, 8 Johns. 152; De Mott V. Hagarman, 8 Cow. 220 ; Doremus v. Howard, 3 Zab. 390; Fry V. Jones, 2 Rawle, 11. A lease upon shares is a personal contract, and, as such, is not assignable where the amount of rent received depends SEC. I.] BY IMPLICATION. 29 of a lease reserving as rent the crops to be divided between the parties, creates a tenancy of the land, and the landlord retains an interest in the crops only by express reservation.* on the character and skill of the lessee, or where it gives the lessee the use of the lessor's tools on condition that they be properly kept. Randall V. Chubb, 46 Mich. 311. But see Dworak v. Graves, 16 Neb. 706. 1 Warner v. Abbey, 112 Mass. 355; Darling v. Kelley, 113 id. 29; Geer v. Fleming, 110 id. 39; Sargent v. Currier, 66 111. 245; Jordan v. Staples, 57 Me. 132; Foster v. Penry, 71 N. C. 131; Harrison v. Ricks, ib. 7; Lang v. Weaver, 49 Ind. 103; Steele v. Morse, 52 id. 32; Front v. Harding, 56 id. 165; Cunningham v. Baker, 84 id. 597 ; Chicago & W. M. Railway v. Linard, 94 id. 319 ; Larkin v. Taylor, 5 Kansas, 433 ; Strain v. Gardner, 61 Wis. 174, where an agreement, under seal, to culti- vate a farm on shares for one year was held a lease. The ancient com- mon law declared parties to be tenants in common of the crop, and the lessor still possessed of the land if the agreement was for one crop only: Hare ». Celey, Cro. El. 143 ; followed by Bradish v. Schenck, 8 Johns. 151 ; Bishop v. Doty, 1 Vt. 37 ; but where for more than one crop, it made a lease: Stewart v. Doughty, 9 Johns. 108; Decker v. Decker, 17 Hun, 13; and see Schmitt v. Cassilius, 31 Minn. 7; Cooper v. McGrew, 8 Oregon, 327. But other and later decisions have rejected this test: Moulton V. Robinson, 7 Fost. 550; Aiken v. Smith, 21 Vt. 180; Putnam V. Wise, 1 HiU, 246; and rested solely on the terms made use of, con- struing the agreement a lease wherever rent was reserved or terms of demise employed, or an intention to that effect otherwise clearly appeared : Orcutt V. Moore, 134 Mass. 48; Fry v. Jones, 2 Rawle, 11; Newcomb v. Agan, 2 Johns. 421, n. ; Jackson v. Brownell, 1 Johns. 267; Hurd v. Darling, 14 Vt. 214; Manwell v. Manwell, ib. 14; Burns v. Cooper, 31 Pa. St. 426; Lamberton v. StoufEer, 55 id. 284; Alwood v. Ruckman, 21 111. 20O; Dixon v. NiccoUs, 39 id. 372; Koob v. Ammann, 6 Bradw. (111.) 160; Hansen v. Dennison, 7 id. 73; Wells v. Preston, 25 Cal. 59, 67; Ross V. Swaringen, 9 Ired. 481 ; Hatchell v. Kimbrough, 4 Jones, 163 ; Blake v. Coats, 3 Iowa, 548; Hoskins v. Rhodes, 1 Gill & J. 266; and have even held the agreement to " deliver" the landlord's part of crop evidence of a demise: Rinehart v. Olwine, 5 W. & S. 157, 163; Ream v. Harnish, 45 Pa. St. 379; Blake v. Coats, supra; Symonds v. Hall, 37 Me. 354; even though the landlord furnishes seed, stock, or farming implements: Brown v. Jaquette, 94 Pa. St. 113; Redmon v. Bedford, 80 Ky. 13; Harrison v. Ricks, Warner v. Abbey, and other cases, supra. Bat as this doctrine left the crop the lessee's until delivery, the lessor lost all specific right thereto. And to protect him the courts in some States were led to construe an agreement expressed as a lease, not to be a lease but a tenancy in common of the crop, wherever a division uncer- tain in amount was stipulated for: Putnam v. Wise, 1 Hill, 234; and see Smyth ». Tankersly, 20 Ala. 212; Bemal v. Hovious, 17 Cal. 541; Lowe 30 THE CREATION OF A TENANCY. [CHAP. I. § 25. Evidence arising from Occupancy may be controlled. — Nor will the relation of landlord and tenant be inferred from occupation, if the relative position of the parties to each other can, under the circumstances of the case, be referred to any- other distinct cause.^ As, for instance, between a vendor and V. Miner, 3 Gratt. 205; Aiken v. Smith, 21 Vt. 172; Scott v. Ramsey, 82 Ind. 330 ; and it was implied that the same relation existed as to the land; and this was distinctly held in later cases: Dinehart v. Wilson, 15 Barb. 595; Harrower v. Heath, 19 id. 331. Where there are no clear terms of demise this is, undoubtedly, the relation of the parties. Caswell V. Districh, 15 Wend. 379; Otis v. Thompson, Hill & Den. 131; Foote V. Colvin, 3 Johns. 216; Guest v. Opdyke, 31 N. J. 552; Fiquet v. Alli- son, 12 Mich. 330 ; De Mott ». Hagarmau, 8 Cow. 220. And where neither demise, rent, nor exclusive occupation is agreed upon, but services to be paid in part of the crop, the occupant is not even tenant in common, but a mere cropper, with no interest until division. Walker v. Fitts, 24 Pick. 191; Chandler v. Thurston, 10 id. 205; Chase v. McDonnell, 24 111. 236; Maverick v. Lewis, 3 McCord, 211; Warner v. Hoisington, 42 Vt. 94; Huggins V. Wood, 72 N. C. 356; State v. Jewell, 34 N. J. 239; Adams v. McKesson, 53 Pa. St. 81. But where either of these is found the sounder view seems to be that there is a lease of the land, and the rela- tion of landlord and tenant arises; and the lessor will either be entitled to his share, as it comes into existence, by way of reservation, subject only to the tenant's right of possession for purpose of cultivation, — Moul- ton V. Robinson, 7 Fost. 550; Hatch v. Hart, 40 N. H. 98; Jewell v. Woodman, 59 id. 520; Lewis v. Lyman, 22 Pick. 437; Kelly v. Weston, 20 Me. 232; Brown v. Lincoln, 48 N. H. 168; Wentworth v. R. R., 55 id. 540; Johnson u. Hoffman, 53 Mo. 509; Heald w. Build. Ins. Co., Ill Mass. 38 ; and see Ferrall v. Kent, 4 Gill, 209 ; Esdon v. Colburn, 28 Vt. 631; Smith v. Atkins, 18 id. 461; Willmarth v. Pratt, 56 id. 474; Atkins V. Womeldorf, 53 Iowa, 150; Sunrol v. Molloy, 63 Cal. 369, — or, if the share is clearly rent, that the lessor has no interest therein before deliv- ery, see cases supra, or until his share is set apart for him by the tenant, Townsend v. Isenberger, 45 Iowa, 670; Thomas v. Williams, 32 Hun, 257. Where the owner of a farm leased it to a tenant for a year under an oral agreement by which the lessee was to carry on the farm at the halves, and to leave at the end of the term as much hay as he found there at the beginning, and the lessor did not occupy the farm during the term, it was held that the court could not, as matter of law, say that the lessor had during the year such a potential interest in the crops as to enable him to mortgage them. Orcutt v. Moore, 134 Mass. 48. 1 Osgood V. Dewey, 13 Johns. 240; Curtis v. Treat, 21 Me. 525. In Constant v. Abell, 26 Mo. 174, 181, where the government took possession of demised premises, and paid lessee rent, it was held that he was not liable to lessor for government's occupation after his term expired; for SBC. I.] BY IMPLICATION. 31 Tendee of land, where the purchaser is to have possession until the agreement for purchase is completed or rescinded ; for possession was evidently taken in such case with the understanding of both parties that the occupant should be owner and not tenant ; and the other party cannot, without his consent, convert him into a tenant, so as to charge him with rent.^ But if the vendee remains in possession after though he had received rent he had never let the government in. So the owner cannot hold as tenant one who took possession under a pretended sheriff's sale: Nance v. Alexander, 49 Ind. 516. So where a tenant for the life of another continued in possession without the consent of the owner, after the determination of the life-estate. Livingston v. Tanner, 4 Kern. 64; Buck v. Binninger, 3 Barb. 391; Freeman v. Ogden, 40 N. Y. 105. 1 Coffman v. Hack, 24 Mo. 496; Brown v. Persons, 48 Ga. 60; Ripley V. Yale, 16 Vt. 257. The vendee's right is a bare right to occupy pro- visionally, no more than a license, determinable by mere demand; upon which ejectment lies without any notice to quit: Doe v. Stanion, 1 M. & W. 700; Right v. Beard, 13 East, 210; Doe v. Chamberlaine, 5 M. & W. 14; Doe v. Edgar, 2 Bing. (N. C.) 498; Doe v. Miller, 5 C. & P. 595; Doe V. Jackson, 1 B. & C. 448; Jackson v. Deyo, 3 Johns. 422; Jackson V. Kingsley, 17 id. 158; Sprag^e v. Stone, 20 Barb. 509; Love v. Edmon- stone, 1 Lred. 152; Kratemayer v. Brink, 17 Ind. 509; Richardson v. Thornton, 7 Jones, 458; Brewer v. Craig,- 3 Har. 214; even though he has paid a portion of the purchase-money: Banks n. Rebbeck, 2 Lowndes, M. & P. 452; Doe v. Stanion, 1 M. & W. 695; Ball v. Cullimore, 2 C. M. & R. 120. He is not estopped to deny the vendor's title: Watkins v. Holman, 16 Pet. 25; is not entitled to emblements: Harris v. Frink, 50 N. Y. 24; or fixtures: King v. Johnson, 7 Gray, 239; and neither use and occupation: Rogers v. Wiggs, 12 B. Mon. 504; Benson v. Boteler, 2 Gill, 74; Ayer v. Hawkes, 11 N. H. 148; Sylvester v. Ralston, 31 Barb. 286; Thomson v. Bower, 60 id. 463 ; Fall v. Hazlerigg, 45 Ind. 576 ; Dunning V. Finson, 46 Me. 546; Kirtland v. i'ounsett, 2 Taunt. 145; Ream v. Tomlin, Peake, 192; Winterbottom v. Ingham, 7 Q. B. 611; Corrigan v. Woods, Ir. R. 1 Com. L. 73; McNair v. Schwarz, 16 111. 24; Greenup B. Vernor, ib. 26; Hadley v. Morrison, 39 id. 392; nor landlord and tenant process lies: Dakin v. Allen, 8 Cush. 33; Riley v. Jordan, 75 if. C. 180; Johnson v. Hanser, 82 id. 375; Dunham v. Townsend, 110 Mass. 440; Rseder v. Ball, 7 Bush, 255; Banks v. Rebbeck, supra; Bur- nett V. Scribner, 16 Barb. 621. In the case of Gould v. Thompson, 4 Mete. 224, following Hull v. Vaughan, 6 Price, 157, the vendee was held liable in use and occupation; but this case seems contrary to the weight of authority. In Towne v. Butterfield, 97 Mass. 105, Gould v. Thompson, is cited as an authority, and a vendee so occupying held estopped to deny 32 THE CBEATION OF A TENANCY. [CHAP, I. such an agreement has been rescinded, though a tenant at will so strictly as to be subject to removal without notice, he is liable in use and occupation while he remains.^ Nor can the relation of landlord and tenant exist where the occupant holds the position of trustee to the party entitled ; ^ nor be- tween a vendor and vendee where the vendor retains possession after the sale,^ unless there has been a conveyance of the property, in which case the presumption will be that he is in rightfully, and as tenant to the grantee.* The same principle applies to the case of a mortgagor and mortgagee ; and to vendor's title. But in Dunham v. Townsend, supra, both these cases are referred to as relating to the period after a rescission. In White v. Liv- ingston, 10 Cush. 259, the vendee had an agreement for peaceable posses- sion so long as he paid interest on his purchase-note, "which both parties treated as rent," and this was held to be a lease. This is undoubtedly correct where the money is paid as compensation for the land. Saunders V. Musgrove, 6 B. & C. 524; Graham v. Way, 38 Vt. 19. See, however, Davis V. Hemmenway, 1 Wms. Vt. 589. But in the former case it was interest only ; and the payment of interest on his purchase-money by the vendee does not make him a tenant: Doe v. Stanion, 1 M. & W. 695; Doe V. Edgar, 2 Bing. N. C. 498; Banks v. Rebbeck, supra; and in Dakin V. AUen, 8 Cush. 33, where the vendee had a verbal agreement to retain possession until the payment of a note for five years with interest, he was held not a tenant, — Shaw, C. J., saying, " he was to pay a sum of interest semi-annually, not for the use of the land grounded on the estimated value of such use, but as forbearance for payment of a sum of money for which he had given his note." So Dunham v. Townsend, supra;, and see Dolittle v. Eddy, 7 Barb. 74. Where, however, a vendee is already in as tenant, his possession is to be referred to that, and not to his in- tended purchase. Blanchard v. McDougal, 6 Wise. 167. Where he agrees to pay a stipulated rent at the end of the year, if he shall fail to pay the purchase-money, he is liable as tenant. Vick v. Ayres, 56 Miss. 670. Aliter, if the conveyance is defeated by the vendor's fault. Garvin v. Jennerson, 20 Kan. 371; Lyon v. Cunningham, 136 Mass. 532. 1 Dunham v. Townsend, supra; Dwight v. Cutler, 3 Mich. 516; Mc- Laughlin I). Nash, 14 Allen, 136, where it was also held that, he was only entitled to fixtures as between vendor and vendee. So he becomes liable for use and occupation where the contract of sale was wholly void. Mattox V. Hightshee, 39 Ind. 95; Howard v. Shaw, 8 M. & W. 118. ^ Bussell V. Erwin, 38 Ala. 44; McCreels v. Wallace, 71 K C. 587. » Tew ». Jones, 13 M. & W. 12; Goldsberry v. Bishop, 2 Duv. 143; Currier v. Earl, 13 Me. 216; McCreels v. Wallace, supra; Jackson v. Aldrich, 13 Johns. 106; Mott v. Coddington, 1 Rob. N. Y. 267. * Sherburne v. Ives, 20 Mo. 70. SEC. ir.] BY EXPRESS AGEEEMBNT. 33 that of the tenant of a mortgagor by a demise subsequent to the mortgage, and the mortgagee or his assignee ; for no privity of estate exists between them in either case.^ So with respect to the guardian or trustee of an infant, or to a hus- band seised in right of his wife; neither of these persons, holding over after the determination of their respective estates, become tenants in any sense ; they are mere intruders and trespassers.^ And, as a general rule, it may be stated that a tenancy by implication can never arise under a party who has not the legal estate of the premises in question.^ SECTION II. BY AN EXPRESS AGREEMENT. § 26. Leases by Parol or Deed. — When a tenancy is created by an express agreement between parties, it is either by parol or by deed. The former mode embraces all cases where the parties agree by mere word of mouth or by a writing not under seal. No particular form of expression is necessary, in either case, to create an immediate demise ; but a reserva- tion of rent, in some form, or some admission of allegiance to the title are characteristic of a contract by which the rela- tion of landlord and tenant is created. Any permissive 1 Way ». Raymond, 16 Vt. 371. * Jackson v. Rowland, 6 Wend. 666 ; and see Roach ». Cozine, 9 id. 231; Carlisle v. McCall, 1 Hilt. 399; for by the common law whoever came in by act of law and held over, as in case of a guardian, husband, or trustee, became a mere trespasser, supra ; but he who entered by act of the party entitled to the estate and held over was tenant at sufferance. Such was the ca.se of a tenant pur autre vie. Allen ». Hill, Cro. El. 238; Torrey v. Torrey, 14 N. Y. 430 ; Horsey v. Horsey, 4 Harr. 517. Thus in Whitney v. Dart. 117 Mass. 153, the husband of the grantee in fee subject to the grantor's life-estate, who had entered and occupied under the life tenant, was held not the tenant of his wife's lessee, after the life-estate ended. See also Wills v. Wills, 34 Ind. 106; Chamberlain ». Dunshee, 45 Vt. 50. » Morgell V. Paul, 2 Mann. & R. 303. When it appears upon the face of the instrument that the party intending to demise has no power to de- mise, the instrument is not a lease. Hayward v. Haswell, 6 A. & E. 265. VOL. I. — 3 34 THE CKEATION OF A TENANCY. [CHAP. I. holding is sufficient for the purpose, and may be contained in a series of lettei's, or in a brief memorandum of tlie con- tracting parties.^ And any phraseology will establish the fact from which it appears to have been the intention of one of the parties voluntarily to dispossess himself of the premises, and of the other to assume the possession, for any determinate period, whether the words made use of run in the form of a license, a covenant, or an express agreement.^ § 27. Parol Leases for Years valid at Common Law. — Leases for years being considered mere chattel interests, arising out of a contract between the parties, passing only a transient interest in the land, and not a freehold, might originally, at common law, have been made by parol for any certain period. The contract gave the lessee a right to enter upon the land with a present interest ; and when, in pursuance of such right, he entered, the object of the contract was accomplished, the term vested in the lessee, the seisin in the land still remaining in the freeholder. But as the tenant was never technically seised, and held only in the name of his lord, he could not 1 Lindsley B. Tibbals, 40 Conn. 522; Shaw v. Fanisworth, 108 Mass. 357; Johnson v. Phoenix Mut. Life Ins. Co. 46 Conn. 92; Alcorn v. Morgan, 77 Ind. 184. '^ Moshier v. Reding, 3 Fairf. 478; Maverick v. Lewis, 3 McCord, 211; Caswell V. Districh, 15 Wend. 379; Right v. Proctor, 4 Burr. 2208; Chap- man V. Bluck, 5 Scott, 531 ; Waller v. Morgan, 18 Ky. 142. A receipted bill of sale of hay and oats had a memorandum: " Left at stable on O. street where P. takes possession. Rent to begin October 1, 1870, for one year at $150." Signed and dated. This was held a lease, and parol evidence admissible to identify and describe the premises and prove occu- pation. Eastman v. Perkins, 111 Mass. 30. So a receipt for flO " from C. on rent of store on corner of Z. (No. 22) and C. streets, which C. is to have for $100 a month until May, 1873," dated and signed. Reming- ton V. Casey, 71 111. 317. See also Smith v. Simmons, 1 Root, 318; Mun- son V. Wray, 7 Blackf . 403 ; Mun'y No. 1 v. N. Orleans, 5 La. Ann. 761 ; Bacon v. Bowdoin, 22 Pick. 401 ; People v. Kelsey, 14 Abb. Pr. 372. But a mere authority from the owner of land to another to occupy, not accom- panied by anything showing a contract for possession on one side and for a recompense to be paid on the other, is not a lease, nor does it convey any estate or interest in the land. Branch v. Doane, 17 Conn. 411. The State grant of a franchise for a limited time, after which it is to revert to the State, is no lease. Bridge v. Prop'rs, 1 Zab. 384. SEC. II.] BY EXPRESS AGREEMENT. 35 defend himself in a real action; and was also liable to be dispossessed at the pleasure of the tenant of the freehold, by his suffering a common recovery .^ So precarious an interest in the tenant was soon found to be prejudicial to agriculture ; forasmuch as there was no encouragement for a tenant to improve and cultivate the land in a proper manner, his prin- cipal inducement to take a lease. His interest was rendered less insecure by a change in the law near the end of the reign of Henry ¥!.,'■* which gave him a right to recover, when unduly evicted, not only damages for the loss of his posses- sion, but the possession itself. The term, however, became a certain interest by 21 Hen. VIII., which enabled a lessee for years to entirely falsify a recovery to his prejudice under such circumstances ; and a variety of subsequent enactments increased its security and permanence. § 28. Rule changed by Statute of Frauds. — The statute of 29 Car. II. c. 3, which is usually called the Statute of Frauds, first enacted, as a remedy for many evils arising from parol demises, that all leases, estates, or terms of years, or any un- certain interest in land, created by livery only, or by parol, and not reduced to writing and signed by the party making the same, or his agent, should have no other force or effect than a mere estate at will ; excepting leases for a term not exceeding three, years, whereupon the rent reserved shall amount to two thirds of the full improved value of the prem- ises.^ The leading provisions of this statute have with some » Co. Lit. 46, a; Theobals v. DufEoy, 9 Mod. 102; Shep. Touch. 210. 2 Poole V. Eirington, 1 Ad. & E. 756, where it is said to have been a judicial change between 6 Rich. II. (a. d. 1383) and 7 Edw. IV. (a. d. 1468). Smith, Landl. & T. 11, says between 1455 and 1458, referring to 33 Hen. VI. fol. 42 (a. d. 1455), to show that it had not then occurred. 8 By the 8 & 9 Vict. c. 106, §§ 2, 3, such writing must be under seal. Similarly statutory provisions exist in Vermont, Rhode Island and Dela- ware applicable to all leases over one year in point of duration. It must appear also that the rent was two thirds the improved value ; which is here held to mean the annual value. This requirement also exists in New Jersey. Gano v. Vandeveer, 34 N. J. 293, though the meaning given to improved value is total value and not annual. In Maryland such a value is presumed in the absence of evidence to the contrary. Union Bk. V. Gittings, 45 Md. 180. 36 THE CKEATION OF A TENANCY. [CHAP. I. exceptions been adopted in the United States. Thus in New- York no lease or contract for leasing for more than a year is good except in writing, signed by the party or his agent, who in the former case must be authorized in writing.^ § 29. How Umited in diflferent States. — In Massachusetts, all estates and interests in land created without writing, whether an annual rent is reserved or not, are declared by statute to be estates at will only.^ So in Missouri, Ohio, Maine, Vermont, and New Hampshire. In Connecticut, no leases of land for a term exceeding a year are valid, except as against the grantor, unless they be made in writing, and are signed by the lessor in the presence of two witnesses, and ac- knowledged. Pennsylvania, Indiana, and North Carolina partially follow the English statute, and allow parol leases, not exceeding three years, without adding anything as to the reservation of rent, or other consideration for the making of the contract. In New Jersey, Maryland, and South Carolina, * 2 R. S. 135, § 8. In some of the States, the words " authorized by writing" are omitted; in which case it is sufficient that the agent have verbal authority to contract, provided the contract itself is in writing; but his authority to make a deed must still be in writing. Story on Agency, § 50; and see McWhorter v. McMahan, 10 Paige, 394 ; Champ- lin V. Parish, 11 id. 405; Agate v. Gignoux, 1 Rob. N. Y. 278; Benedict V. Beebee, 11 Johns. 145; Lower v. Winters, 7 Cow. 263. In Indiana, a parol lease for an indefinite time, the tenant taking possession, is a ten- ancy from year to year, and not within the Statute of Frauds. See 2 R. S. 1876, p. 388, § 2, and Swan v. Clark, 80 Ind. 57. In McMullen i-. Riley, 6 Gray, 500, an oral agreement to hire and pay landlord for fitting up premises was held to give no action for such fitting up, though ac- tually done. So landlord's agreement to repair, in consideration of which tenant enters, occupies and pays rent, is within the statute. O'Leary v. Delany, 63 Me. 584. But where the tenant builds or repairs, on the promise of a lease to which the statute is set up as a bar, he may recover the value of such work. White v. Wieland, 109 Mass. 291 ; Par- ker V. Tainter, 123 id. 185 ; Pulbrook v. Lawes, 1 L. R. Q. B. Div. 284. But making improvements, or advance payment of rents under a parol contract for a lease for more than a year, cannot in law or equity, extend the tenancy beyond the year. Brockway v. Thomas, 36 Ark. 518 ; Beck V. Birdsall, 19 Kan. 550; Railsback v. Walker, 81 Ind. 409; Creighton V. Sanders, 89 HI. 548. " Pub. Sts. c. 120, § 3 ; Ellis v. Paige, 1 Pick. 43. SEC. n.] BY EXPRESS AGEEEMEKT. 37 the English statute is followed ; but in other States the prin- ciples of the New York statute have been adopted.^ § 30. Agreements to lease under Statute of Frauds. — By the English Statute of Frauds also, every agreement not in writing and signed by the party to be charged therewith, or his author- ized agent, is void, which, by its terms, is not to be performed within one year from the making thereof. A verbal agree- ment to lease lands must therefore, according to the English authorities, commence from the making of the agreement, and cannot be made to commence from a future day.^ In most of the United States similar statutory provisions exist.^ In those 1 In Alabama, Arkansas, California, Delaware, Florida, Illinois, Iowa, Kentucky, Michigan, Mississippi, Rhode Island, Tennessee, Texas, Vir- ginia, and Wisconsin, parol leases for one year are valid. Browne, Stat. Fr. Appendix. The effect of the statute is limited to the contract. If possession is taken and held under it, the tenant becomes from year to year ; the terms of the contract controlling prima facie. Drake v. New- ton, 3 Zab. Ill ; Lounsberry v. Snyder, 31 Jf. Y. 514; and see post, § 58. 2 Rawlins v. Turner, 1 Ld. Ray., 736; Anon. 12 Mod. 610. An exec- utory agreement for a lease does not satisfy the Statute of Frauds unless it can be collected from it on what day the term is to begin ; and there is no inference that the term is to run from the date of the agreement in the absence of language in the agreement pointing to that conclusion. Marshall v. Berridge, 19 Ch. D. 233, overruling Jaques v. Miller, 6 id. 153. » Delano v. Montague, 4 Cush. 42; KeUey v. Terrell, 26 Ga..551; Lar- kin V. Avery, 23 Conn. 304 ; Stackberger v. Mosteller, 4 Ind. 461 ; and see Browne St. Fr. App. So in Georgia, Code, 2280. And part perform- ance, as by entry and payment, will take the case out of the operation of the Statute of Frauds, Code, 1951. See Steininger v. Williams, 63 Ga. 475. But the Revised Statutes of New York have omitted the expres- sion, within one year from the making thereof, which was held to prohibit the creation of an estate for a year commencing in fuluro, and the Court of Appeals, in that State, now hold that a parol lease of lands for the term of one year, to commence at a period subsequent to the day when the contract was made, is valid, for that the time between the making of the lease and its commencement in possession is no part of the term granted: Young v. Dake, 5 N. Y. 463 ; Becar v. Flues, 64 id. 518; and the cases of Lockwood v. Barnes, 3 Hill, 128, and Plimpton v. Curtis, 15 Wend. 336, are overruled. A parol contract, to give a lease of land for a term exceeding one year, is void. Phipps v. Ingraham, 41 Miss. 256 ; Shepherd v. Cummings, 1 Coldw. 354. An agreement to occupy lodg- ings at a yearly rent, payable in quarterly portions, when the occupation 38 THE CEEATION OF A TENANCY. [CHAP. I. States where the exception of leases not exceeding three years is made, the limitations of contracts to a year provided by the fourth section of the English statute are held not to apply.^ § 31. Parol Licenses valid. — Every grant of the possession of land for permanent use is an interest within the meaning of the statute, whether it be to enter upon it at all times with- out fresh consent, or for the purpose of erecting and keeping a house in repair, making an embankment, or canal, in order to raise water to work a mill, or the like ; and an agreement therefor must consequently be in writing. But a license or authority to enter upon the land of another, to do certain specified acts, which are of a temporary character, without intending to pass an interest in the land, is founded in per- sonal confidence; and although revocable so long as it re- mains unexecuted, is valid notwithstanding it is not in writing.2 The conferring of a right to enter upon lands, and to erect and maintain a dam as long as there shall be employ- ment for the water-power thus created, is, however, more than a license : it is the transfer of an interest in land in the nature of a lease, and must therefore be in writing.^ § 32. Parol Agreements to Lease, when enforced in Equity. — Although a parol agreement to grant a lease may be void un- der the statute, it will still be enforced in equity when there has been a substantial part performance of it, though on the part of the plaintiff only;* and a specific performance will, is to commence at a future day, is an agreement relating to an interest in land, within the meaning of the Statute of Frauds, and must therefore be in writing. Inman v. Stamp, 1 Stark. 12. A mere executory parol lease is wholly void. Larkin v. Avery, supra. 1 Huffman v. Starkes, 31 Ind. 474 ; Union Bk. v. Gittings, 45 Md. 180 ; Birckhead v. Cummings, 33 N. J. 44 ; controverting Inman v. Stamp, supra; Edge v. Strafford, 1 C. & J. 391. ^ Cook J;. Stearns, 11 Mass. 533 ; Phillips v. Thomson, 1 Johns. Ch. 131; Miller v. Auburn & Sy. R. R., 6 Hill, 61; Wolfe v. Frost, 4 Sandf. Ch. 72; Woodward v. Parshley, 7 N. H. 237; Sampson v. Burnside, 13 id. 264; Dubois v. Kelley, 10 Barb. 496. 3 Mumford t-. Whitney, 15 Wend. 380. * Jackson v. Pierce, 2 Johns. 221: Hollis v. Whiting, 1 Vern. 151; Walker v. Walker, 2 Atk. 98; Beidelman v. Foulk, 5 Watts, 308. A SEC. II.] BY EXPBESS AGEEEMENT. 39 under these circumstances, be decreed, if signed by one party- only.^ If possession has been delivered under such an agree- ment, it will be considered as a part performance ; ^ especially if the tenant has expended money in building or improving the property, in pursuance of it.^ But acts which are merely introductory, or ancillary to an agreement, will not be con- sidered as a part performance, although attended with ex- pense.* And possession must also be voluntarily delivered in part performance ; for, if the purchaser obtains it wrongfully, it will not avail him.^ Nor will a possession which can be referred to another title distinct from the agreement take a case out of the statute, and therefore no possession of this character by an occupant can be deemed a part performance.® § 33. Substantial Performance, -what. — Party's Representa- tives bound by Decree. — The acceptance of a trifling earnest, or the payment of money on account of the agreement, though it may make a personal contract good, is not enough to satisfy the statute where the contract concerns lands.'' Even the parol lease for more than a year, but less than three, which by the statute of Ohio, is required to be in writing will be withdrawn from the opera- tion of the statute, and become valid for the term specified, if the lessee takes possession and has paid rent according to the terms of the lease. Grant v. Ramsey, 7 Ohio St. 165. So also in Pennsylvania, Jones v. Peterraan, 3 S. & R. 543; quoting Earl of Aylesford's case, 2 Stra. 783. 1 Owen V. Davis, 1 Ves. Sr. 82; Seton v. Slade, 7 Ves. 265; Martin v. Smith, L. R. 9 Exch. 50; Parker v. Taswell, 2 De G. & J. 559. See the subject of the specific performance of an agreement, treated more at large, in section three of this chapter. And see § 36. 2 Moore u. Beasley, 3 Ham. 294 ; Butcher v. Stapely, 1 Vern. 363 ; Aston V. Aston, 2 id. 452; Bowers v. Cator, 4 Ves. 91. « Lester v. Foxcraft, Colles, Pari. Ca. 108 ; Floyd v. Buokland, 2 Freem. 268; Mortimer v. Orchard, 2 Ves. 243; Carter v. Boehm, 3 Burr. 1919. In Foster v. Hale, 3 Ves. 712, the court said it had gone too far in taking cases out of the statute ; for a man having laid out a vast deal of money does not prove that he is to have a ninety-nine years' lease. The remedy ought to rest in compensation. * Clarke v. Wright, 2 Atk. 12; Whitbread v. Brockhurst, 1 Bro. C. C. 412; Cooke v. Toombs, 2 Anst. 420; Cooth o. Jackson, 6 Ves. 12. 6 Cole V. White, 1 Bro. C. C. 409. « Wills V. Strading, 3 Ves. 378. ' Alsopp V. Patten, 1 Vern. 472 ; Coles v. Trecothick, 9 Ves. 234. 40 THE CREATION OP A TENANCY. [CHAP. I. payment of a considerable sum of money, or the performance of sundry acts bearing upon the transaction, will not be considered part performance of such a contract, unless they clearly appear to hare been paid or done solely with a view to the performance of the agreement.^ And although an agreement may have been performed in part, yet the court, it seems, may not be able to understand 'its terms, and then the case will not be taken out of the statute.^ But the mere circumstance that the terms do not clearly appear, or that they are controverted by the parties, will not deter the court from taking the best means in its power to ascertain the real terms of the contract, and to enforce it, when it can be made intelligible.^ And if the agreement is so far executed as to entitle either of the parties to require a specific performance, it will be binding on the legal representatives of the other party in case of his death, to the same extent that he was himself bound by it.* § 34. livery of Seisin abolished. — Seal. — The common law required that a freehold should be conveyed either by deed or by livery of seisin without writing. The English Statute of Frauds abolished the latter method, and left the former as the only mode of conveyance ; and this provision of law, with some modifications, generally prevails in this country. The statutes of many of the States require the conveyance of all freeholds to be by deed;" and in other States leases exceeding a certain number of years must also be by deed." And where the conveyance of a freehold is not required by statute to be under seal, it has, unless where specially dispensed with by 1 Clinan v. Cook, 1 Sch. & L. 22 ; Butcher v. Butcher, 9 Ves. 382 ; Rosenthal v. Freeburger, 26 Md. 80. ' 2 Porster v. Hale, 3 Ves. 712. ' Mortimer v. Orchard, 2 Ves. 243; Boardman v. Mostyn, 6 id. 470; Allan V. Bower, 3 Bro. C. C. 149. * lb. ; Shannon v. Bradstreet, 1 Sch. & L. 52. 6 Thus Mass. Pub. Sts. c. 120, § 4; Vt. Comp. Sts. 1850, c. 67, § 8, South Carolina, and others. ° Thus in Massachusetts and Maryland seven years, in Virginia five, in Florida, two, in D^aware, Khode Island, and Vermont, one year. SEC. 11.] BY EXPRESS AGREEMENT. 41 statute, as in Alabama, Kentucky, and Louisiana,^ been held necessary by common law .2 For this reason, an agreement, not under seal, that a lessor should not turn out the tenant so long as he paid rent, has been held invalid ; because the tenancy created by it would not be determinable so long as the tenant complied with the terms of his agreement, and would, therefore, operate as an estate for life, which, being a freehold, can only pass by deed.^ 35. Sufficient Signature, what. — As to what is a suflBcient signature to the agreement, required by statute, it is held to be unnecessary that it should be done contemporaneously with the making of the agreement ; it is sufficient if made by the parties at one time and adopted at another ; and then any- thing under the hand of the party to be charged, which amounts to an acknowledgment that he had entered into 1 Ala. Code, 1852, § 2193; Ky. K. S. 1852, c. 22, § 2; 4 Kent, Com. 443. In Missouri, a lease need not be under seal. Gay v. Ihm, 3 Mo. App. 588. " Den D. Johnson, 3 Green, N. J. 116, where it was contended that as by the Statute of Frauds all estates not in writing were at will, except certain short leases, all other transfers of interests in land, whether for years or freehold, were by implication alike, and either freeholds were conveyable in writing or estates for years must be created by deed. But it was held after an elaborate discussion that the statute was to be con- strued negatively and not affirmatively, and merely substituted written for verbal transfers 6f land where these were allowed at common law, but did not alter other established modes of conveyance. So Alleu v. Jaq- uish, 21 Wend. 628. A lease for lives, to begin from the day of the date hereof, with seisin delivered afterwards, is good, and shall not be said to convey a freehold to commence in future. Freeman d. Vernon v. "West, 2 Wils. 165. » Doe V. Browne, 8 East,'l65. By the English statute, 8 & 9 Viet. c. 106, all leases required by law to be in writing must be made by deed ; and the same rule applies to assignments and surrenders of such leases. A demise of an incorporeal hereditament can only be valid by deed ; a demise by parol of a right of hunting and sporting, together with a messuage, is therefore void. Bird v. Higginson, 6 A. & £. 824. But an instrument not under seal by which land is demised, and which also at- tempts to demise incorporeal tenements, is not entirely void by reason of such an attempt. Regina v. Hockworthy, 7 A. & E. 492. It is con- sidered doubtful whether or not a lease under seal can be cancelled and ■ surrendered by a writing not under seal. Koe v. Conway, 74 N. Y. 201. 42 THE CEEATION OF A TENANCY. [CHAP. I. the agreement, will satisfy the statute. As where a person verbally agreed to take a lease for fifteen years, and it was subsequently made out and sent to him for signature ; he returned it, and wrote on the back of the lease : " I hereby request you to endeavor to let the premises to some other person, as it will be inconvenient for me to perform my agreement for them, and for so doing this shall be a sufficient authority." This was held a clear recognition of an existing contract, sufficiently reduced to writing to bind him.^ But the fact that a party has altered the draft of a conveyance, and delivered it to an attorney to be engrossed, does not amount to signing it.^ Nor is the statute complied with, un- less the agreement is likewise signed by him, though it may have been written with his own hand ; because the absence of a signature is evidence that the party considered the instru- ment to be incomplete.^ The signature may be written with a lead pencil, or in ink, at the discretion of the parties ; and if he is in the habit of printing, instead of writing his name, he may be said to sign by his printed as well as by his written name if he intends it as his signature.* And the name of the 1 Shippey v. Derrison, 5 Esp. 190; Powell v. Dillon, 2 Ball & B. 416. So where a memorandum of agreement for a lease was signed by the lessee, but the name of the lessor did not appear in any part of the memo- randum, it was held that a letter written by the lessee subsequently, referring to the lessor by name, was sufficient to satisfy the statute. Warner v. Willington, 3 Drew. 523; 2 Jur. n. s. 433. 2 Hawkins v. Holmes, 1 P. Wms. 770 ; Lowther v. Carill, 1 Vern. 221. Nor will the mere fact of the name of the party being written by himself in the body of the instrument constitute a signature within the meaning of the statute*. Stokes v. Moore, 1 Cox, 219. But where a lessee wrote a lease containing his own name in the third person, recorded it, and entered and paid rent, these acts were held to show his intent to execute the lease, and to take the case out of the operation of the Statute of Frauds, without further signature. Traylor v. Cabanne, 8 Mo. App. 131. For a case in which it was held that the lessee's signature was not necessary to bind him, — the lease reciting that the lessee was to pay a certain rent, and the lessee having accepted the lease and being thus held as an original promisor or obligor, — see McFarlane v. Williams, 107 111. 33. ' Charlewood v. Bedford, 1 Atk. 497; Anderson v. Harold, 10 Ohio, 399 ; Bailey v. Ogden, 3 Johns. 399. * Per Ld. Eldon, in 2 B. & P. 239; Schneider v. Norris, 2 M. & S. 286. Clason v. Bailey, 14 Johns. 484. SEC. n.] BY EXPRESS AGREEMENT. 43 party may be put to an instrument by his direction, by the hand of another person, if it be done in his presence,^ or by his broker or agent duly authorized.^ So if the agreement itself is not signed, but a letter referring to it has been ■written, acknowledging the agreement, this has been held sufficient for the purposes of the statute.* The contract, in •whatever shape it exists, should properly be signed by both parties, or it may be void for want of mutuality.* § 36. Place of Signing. — At common law the place of sign- ing is immaterial ; for if a person writes his name in any part of the agreement, it will be considered his signature, if it was written for the purpose of giving authenticity to the instru- ment. ^ As where a man drew up an agreement in his own handwriting, beginning, " I, A. B., agree," &c., and left a place for his signature, but did not sign it, the agreement was considered sufficiently signed. For, as a general rule, wherever an agreement has been reduced to a certainty, and the statute has been substantially complied with, strict mat- ters of form are not to be insisted on.^ Upon this principle it was held that the signing of an agreement in the place where a witness usually signs his name, by one who was ac- quainted with the contents of the instrument, was sufficient. '' 1 Frost V. Deering, 21 Me. 156; Baymar v. Clarkson, 1 Phillim. 422. 2 Clason V. Bailey, supra. » Sanderson v. Jackson, 2 B. & P. 238; Allen v. Bennet, 3 Taunt. 169; De Beil v. Thomson, 3 Beav. 469. The letter may be sent to the plaintiff, or the acknowledgment may be contained in a letter sent to a third per- son. Welford V. Beazeley, 3 Atk. 503. And see Dobell ». Hutchinson, 3 Ad. & E. 3.55. * Cammeyer v. United Germ. Luth. Ch., 2 Sandf. Ch. 186, 249; Miller V. Pelletier, 4 Edw. 102; citing 10 Paige, 386; 26 Wend. 341. But in Michigan it seems that usage permits a lease to be executed by the ex- change of duplicates, each of which is signed only by the other party. Campbell v. Lafferty, 43 Mich. 429. ' Fenniman v. Hartshorn, 13 Mass. 87; Knight v. Crockford, 1 Esp. 190. See, also, Bluck v. Gompertz, 7 Exch. 862. ' Knight V. Crockford; Penniman v. Hartshorn, supra. It is held that a lease made to a railroad, by name, is binding, although there be no corporation of that name, if it appear that, at the time of execution, the road was owned by a private person who operated it under the name employed in the lease. Ecker v. C. B. & Q. R. K. Co. 8 Mo. App. 223. ' Welford v. Beazeley, 3 Atk. 503. 44 THE CKEATION OF A TEKANCT. [CHAP. I. But the Revised Statutes of New York require the name of the party to be subscribed or signed below, that is, at the foot of the memorandum ; what, therefore, under the old statute was deemed to be a sufficient signing of an agreement, is not now a compliance with the statute of that State requiring a subscription. 1 It was formerly doubted whether an agree- ment could be specifically enforced against a defendant who had signed it, when it did not appear to have been signed by the party seeking performance ; ^ but it seems now to be well understood that wherever there is a mutual obligation, it will not only be enforced in equity, but may also be the foundation of an action at law. ^ SECTION III. OP AN AGREEMENT FOB A LEASE. § 37. How distinguished from a Lease. — It sometimes be- comes difficult to distinguish, in the form of a written instru- ment, between language importing an actual lease, and that which amounts to no more than an agreement to give one. This distinction is nevertheless important to both parties, for it may happen that what was intended by the one to be merely an agreement for a lease may be construed into a present lease, passing an estate in the land, and the other may thereby avoid covenants which would have been imposed upon him, if a regular lease had been executed. While its importance to the lessee appears from the consideration that, on the execution of an actual lease, he acquires an interest, — an inter esse termini, — which, upon entry, vests the term in him ; but, by an agreement only, he will acquire no legal interest in the term or in the land, nor can he set it up as a 1 Davis V. Shields, 26 Wend. 341. "^ Per Ld. Redesdale, in Lawrenson v. Butler, 1 Sch. & L. 13. 8 Allen V. Bennet, 3 Taunt. 176; Bourke v. Rothwell, 2 Ball & B. 56; Martin v. Mitchell, 2 Jac. & Walk. 427 ; Laythoarp «. Bryant, 2 Bing. (N. C.) 735; Clason v. Bailey, 14 Johns. 484; McCrea v. Purmort, 16 Weud. 460; Penniman v. Hartshorn, supra. SEC. III.] AN AGREEMENT FOE A LEASE. 45 defence to an action of ejectment brought against him. Such an agreement, however, will operate as a license to enter upon the premises agreed to be demised ; and if the intended land- lord refuses to grant the lease, it gives the proposed tenant a right to file a bill in equity, to enforce a specific performance of the agreement, or to maintain an action for damages, if any damage has resulted from his refusal to perform the agreement. 1 The difficulty of drawing the distinction be- tween a present lease and a mere agreement to give a lease has led to so much litigation in England as to call for an Act of Parliament, providing that no lease in writing of any free- hold, copyhold, or leasehold land shall be valid as a lease, unless it be made by deed ; but that any agreement in writ- ing, to let such land, shall be valid, and take effect as an agreement to execute a lease. Any person, however, who may be in possession of land, in pursuance of an agreement to let, may, by the payment of rent or other circumstances, become a tenant from year to year.^ § 38. Intention of the Parties governs the Construction. — As the law stands with us, the whole question resolves itself into one of construction ; and an instrument will be considered a lease, or only an agreement for a lease, according to what appears to have been the paramount intention of the parties ; as such intent may be collected from the whole tenor and effect of the instrument.^ And the law, it is said, will even 1 Price V. Williams, 1 M. «e W. 6. 2 Stat. 7 & 8 Vict. c. 76, §' L Under this statute it has been held that, although the agreement not under seal did not operate as a demise, yet by a collateral contract to the intended demise, the lessee became bound for rent notwithstanding that he had never entered into possession. Adams v. Hagger, 4 Q. B., D. 480. Since the Judicature Acts it is no longer the rule that a person holding under an executory agreement for a lease is only made a tenant from year to year by paying rent, but he is to be treated as holding by the terms of the agreement. And 80 such a tenant was held subject to the same right of distress as if a lease had been granted him. Walsh v. Lonsdale, 21 Ch. D. 9. 8 Goodtitle v. Way, 1 T. R. 735; Bacon v. Bowdoin, 22 Pick. 401; State V. Page, 1 Spear, 408. An agreement containing words of bargain and sale in prmsenti, does not necessarily transfer the title, but may be a mere agreement to convey. Jackson v, Myers, 3 Johns. 388; Jackson 46 THE CEEATION OF A TENANCY. [CHAP. I. do violence to the words, rather than break through the in- tent of the parties, by construing them into a lease, when the intention is manifestly otherwise.^ An express provision that an instrument is not to operate as a lease, but only asiin agree- ment for one, shows clearly the intention of the parties, not- withstanding any inference which might be drawn from other clauses in the same instrument,^ but the mere use of the words agree to let is not of itself decisive.^ § 39. Words to create a Leasehold Interest. — Words of present demise, as doth let, agrees to let, agrees to pay for, doth demise, shall enjoy, or the like, will generally make an actual lease, if no future or more formal document appears to have been intended ; and especially if possession is taken under it.* But the use of such words, however strong, will not con- V. Clark, ih. 424; Ives v. Ives, 13 id. 235; Burnett v. Scribner, 16 Barb. 621. And a contract reserving the right to quit at the end of ten years on paying the first instalment, is a sale and not a lease. Moulton v. Nor- ton, 5 Barb. 286. 1 Hallett V. Wylie, 3 Johns. 44; Jackson v. Clark, ib. 424; Baxter v. Brown, 2 W. Bl. 973. 2 Perring v. Brooke, 1 Mood. & R. 510. s John V. Jenkins, 3 Tyrw. 177; Browne v. Warner, 14 Ves. 156; Weed V. Crocker, 13 Gray, 219. * AveriU v. Taylor, 8 N. T. 44; Baxter v. Brown, 2 W. Bl. 973; Wright V. Trevezant, 3 C. & P. 441; Doe v. Groves, 15 East, 244; Jen- kins V. Eldridge, 3 Story, 325; Hand v. Hall, 2 L. K. Exch. Div. 355; Doe V. Benjamin, 9 Ad. & E. 644. The test seems to be that, if the agreement leaves nothing incomplete, it operates as a present demise. Doe V. Kies, 8 Bing. 178. The owner of land " agreed to rent and lease " it to a gas company, to store materials for the building they were about to erect on adjoining land, and at their request cleared his land of trees; held a lease, and that possession was taken under it. Kabley u. Wore. Gas Co., 102 Mass. 392; citing Slaniforth v. Fox, 7 Bing. 590. A sealed instrument not specifying any term, but purporting to demise and lease from a future day, the lessee to pay taxes for a year, and waive notice to quit, was held to be a lease for years. Barney v. Keith, 4 Wend. 502. An agreement of the purchaser of land to allow the vendor to remain in possession for a year, and until the former should pay a certain mortgage, which, by its terms, had four years to run, was held to be a lease and not a reservation, and that the purchaser might pay, or tender the debt, within the year, and remove the vendor under the statute. Hunt v. Corn- stock, 15 Wend. 665. Where A. conveyed to B. realty by deed poll, reserv- SEC. III.] AN AGREEMENT FOK A LEASE. 47 Btitute the instrument a lease, if it can be clearly inferred from the rest of the paper that the parties had it in contemplation to enter into a future lease.^ Thus an agreement containing words of present demise, but in which was inserted a stipula- tion on the part of the owner, to make certain alterations and improvements, and of the other party to take a lease, when the premises should have been so altered and improved, the term to commence from the day that the premises should be so altered and improved, was held to be only an agreement for a lease.^ So an instrument containing words of present de- mise, with an agreement that the lessee shall take possession immediately, and that a lease shall be subsequently executed, operates only as an agreement for a lease.^ ing specified rents payable at stated times, and B. entered under the deed, it was held that, by entry, B. contracted to pay the rents as reserved, and that his contract, being implied and not express, was not within the Statute of Frauds, so that A. might maintain assumpsit for the rent due and unpaid. Providence Christ. Un. o. Eliott, 13 R. I. 74. Where the relation of the parties between the execution of the agreement and the execution of the lease cannot be any other than that of landlord and tenant, it is held to be a present deniise. Curling v. Mills, 6 M. & G. 173. Though an agreement contains a stipulation for a future lease, and no precise day is fixed from which rent is to commence, still if it contains words of present demise, and the party is let into possession, it operates as a lease. Doe v. Ries, 8 Bing. 178; Pearce v. Cheslyn, 4 Ad. & E. 225; Chapman v. Bluck, 4 Bing. (N. C.) 187. ^ Jackson v. Moncrief , 5 Wend. 26 ; Tempest v. Rawling, 13 East, 18. An instrument is not a demise, although it may contain the usual words of demise, if its contents show that such was not the intention of the parties. Taylor v. Caldwell, 3 B. & S. 826. " Jackson v. Delacroix, 2 Wend. 433; Poole v. Bentley, 12 East, 168; CoUey V. Streeton, 2 B. & C. 373. » Goodtitle v. Way, 1 T. R. 75; Morgan v. Bissell, 3 Taunt. 65. Thus it was held to be an agreement in McGrath «. Boston, 103 Mass. 369, where repairs were to be done and a lease given ; in Griffin v. Knisely, 75 111. 411, where the tenant was to receive a lease when his present hold- ing ended; in Brown v. N. Y. C. R. R., 44 N. Y. 79, where the cove- nants were not settled. The recent case of Hand v. Hall, 2 L. R. Exch. Div. 355, illustrates both propositions. Here A. " agreed to let " and B. "to take " premises, " for one year from next Lady Day " by an instru- ment dated Feb. 14, "with right at the end of the term for three and one-half years more on one month's notice; " which was held to be a lease for the year, and an agreement for the further period. ■ 48 THE CREATION OF A TENANCY. [CHAP. I. § 40. Conditional demise generally construed as an Agreement only. — Wherever, therefore, the instrument makes the demise dependent on a condition or stipulation yet to be performed, it operates as an agreement only. Thus where a man agreed that another should enjoy the mills, &c., and engaged to give him a lease for a certain time and at a certain rent ; and, by another part of the same agreement, an additional piece of land was to be purchased by the former and added to the land demised ; it was held that this amounted only to an agreement for a lease.-' An agreement in these words : " It is hereby agreed, by and between A. and B., that A. will let to B. the use of the county house in L. ; and B. agrees to pay therefor the sum of |750 annually, provided a majority of the county court will agree thereto," is only an agreement to lease on a precedent con- dition.2 So where the words of the agreement were, that A. shall hold and enjoy, and in a subsequent part of it the gran- tor engaged to give him a lease; the court held that, although the words shall enjoy might under ordinary circumstances con- stitute a present demise, yet they were qualified, by the sub- sequent engagement, into an agreement for a future lease.^ And a written authority from one party to another to give a lease to a third person, on terms previously offered in writing by such third person, is not in itself a lease.^ § 41. But when Conditions are executed or Instrument so provides, may be a Lease. — But where the preliminary stipula- 1 Doe V. Ashbumer, 5 T. K. 163: Dunk v. Hunter, 5 B. & A. 322; Clayton v. Burtenshaw, 5 B. & C. 41. A man agreed to repair a mill for another, for a certain sum to be paid when the work was finished, and the latter agreed to secure the premises to the former until the price was realized out of the profits. Held to be not a lease, but an agreement for a lease. People v. Gillis, 24 Wend. 201. 2 Buell V. Cook, 4 Conn. 288. So where security is to be first given by the tenant. McGaunten o. Wilbur., 1 Cow. 257. « Doe V. Ashbumer, 5 T. R. 163; CoUey v. Streeton, 2 B. & C. 273; Phillips V. Hartley, 3 C. & P. 121. So where lessor agreed to give a fur- ther term of five years, to begin thirty days after his death, and to pro- vide for this in his will, it was held an agreement only. Weld v. Traip, 14 Gray, 330. * Davis V. Thompson, 1 Shep. 209. SEC. ni.] AN AGREEMENT FOK A LEASE. 49 tions have been complied with ^ or where the instrument con- tains a clause, to the effect that it should be considered binding until a lease could be executed, it has been generally construed to be a present lease. So the words, A. hath, and hy these presents doth demise, create a personal interest ; and a subse- quent agreement, to give a more formal lease, contained in the same instrument, was held to be only in the nature of a cove- nant for further assurance.^ So where the instrument was as follows : " A. agrees to let, and B. to take, for the term of sixty-one years ; and, in consideration of a lease to be granted by A. for the said term, B, agrees to expend £2,000 in build- ing, &c. ; A. to grant a lease as soon as the houses are covered in ; this agreement to be considered binding until one fully prepared can be procured ; " the court held it to be a lease, considering it to have been the intention of the parties that the tenant, who was to expend so much capital upon the premises, should have a present interest in the term, al- though, when a certain progress was made in the building, a ^more formal lease was to be executed, in which, perhaps, the premises might be more particularly described, for the con- venience of underletting or assigning; and that the stipula- tion for a future lease did not, of itself, indicate an intention that the instrument should not operate as a present demise, but merely that a more formal instrument should thereafter be executed to effect the same thing, as being more satis- factory than the present instrument.^ And generally, it may be said that, if there are words of present demise, without anything to indicate that the parties contemplate a further assurance, it is to be considered a lease.* 1 Shaw V. Farnsworth, 108 Mass. 357. Here the tenant at will pro- posed to take a house for three years from a future day if the owner would put in a furnace, which the owner agreed to do, and did. Held a present demise, to commence in futiiro. So HoUey v. Young, 66 Me. 520 ; Bussman v. Ganster, 72 Pa. St. 285. ^ Jackson v. Kisselbrack, 10 Johns. 336; Barry v. Nugent, 5 T. K. 165; Doe V. Benjamin, 9 Ad. & E. 644; Alderman v. Neate, 4 M. & W. 704. » Poole V. Bentley, 12 East, 168; Baxter v. Brown, 2 W. Bl. 973; War- man V. Faithful!, 3 Nev. & M. 137; Doe v. Groves, 15 East, 244; Pinero V. Judson, 6 Bing. 206. « Hallett V. Wylie, 3 Johns. 44; Thornton v. Payne, 5 id. 74; Mickie VOL. I- — 4 50 THE CKBATION OP A TENANCY. [CHAP. I. § 42. To create Lease, Term and Kent must be certain. — Certainty as to the time when the term is to commence, as well as to the period of its duration, and the amount of rent to he paid, is usually necessary to make an instrument operate as a present demise ; ^ while uncertainty in these particulars will generally induce the courts to construe it as a mere agreement.^ Thus where A. agreed "to let premises to B. on lease, with a purchasing clause, for twenty-one years, at ^63 per year," B. to enter at any time on or before a particu- lar day, it was held to amount to an agreement only, the court saying there were no words of present demise, that the com- mencement of the tenancy was left uncertain, and that the words as to purchasing showed that the letting was to be by a particular instrument, containing such a clause.^ So, where no price was fixed by the agreement, but it was left to the award of a third person not designated, this essential ingre- dient of a lease was said to be lacking.* The courts will Sometimes, also, look at the contemporaneous acts of the parties, to assist in the construction of ambiguous words in such an agreement.^ And strong circumstances of inconve- nience may indicate the intention of the parties to be, that it shall only amount to an agreement ; as that a forfeiture will V. Lawrence, 5 Eand. 571 ; and see Averill v. Taylor, 8 N. Y. 44. An agreement to construct a wharf, which, when finished, is to be occupied by the grantee at a stipulated rent, accompanied by words of present demise, operates as a lease. People v. Kelsey, 14 Abb. Pr. 372. 1' Wright V. Trevezant, 3 C. & P. 441; Doe v. Ries, 8 Bing. 178; War- man V. Faithfull, 3 Nev. & M. 187; Dunk v. Hunter, 5 B. & A. 322; Clayton v. Burtenshaw, 5 B. & C. 41 ; John v. Jenkins, 3 Tyrw. 170. A lease of land containing iron ore, for five years and such further time as the lessee might require to remove all the ore, and providing that the les- see should pay a certain sum for each ton of ore removed, and should remove at least a certain fixed quantity per year, was considered suffi- ciently certain as to the duration of the term and amount of rent. Gil- more V. Ontario Iron Co., 22 Hun, 391. 2 Alderman v. Neate, 4 M. & W. 704; Doe v. Ries, 8 Bing. 178; Doe V. Benjamin, 9 Ad. & E. 644; Dailey v. Grimes, 27 Md. 440. 3 Dunk V. Hunter, 5 B. & A. 322. * Haughery v. Lee, 17 La. Ann. 22. And see People v. Gillis, 24 AVend. 201. 6 Doe V. Ries, 8 Bing. 181; Chapman v. Bluck, 4 Bing. (N. C.) 195. SEC. ni.] AN AGREEMENT FOR A LEASE. 51 be incurred;^ or a stipulation, that out of the rent mentioned a proportionate abatement should be made, in respect of cer- tain excepted premises, for until the apportionment is made, the lessor could not distrain ; or with a stipulation, that the tenant shall hold under all the usual covenants, for it may be disputed what are usual covenants.^ But, notwithstanding such a clause, an instrument of this description may still be sufficiently certain to become a lease.^ § 43. Actual Transfer of Possession creates Lease. — It is manifest, therefore, from this consideration of the cases, that if an instrument, professing to be an agreement for a lease, is in itself an actual transfer of possession, whether immediate or in futuro, it is a lease, although it contains a stipulation for executing a subsequent lease. But if the words do not im- port immediate possession, or if some act is to be done prior to the entry of the tenant, an inference arises that the instru- ment was not intended for a lease, but only as an executory contract. Still, however, if the intention of the parties to create a lease is sufficiently explicit, it will take effect as such whether the words run in the form of a license, a covenant, or an agreement.* § 44. Agreement must be Ezplicit. — Collateral Matter. — It is desirable that an agreement for a lease should contain a minute of all the covenants and conditions that are to be entered into by either party, in order to avoid disputes as to what covenants a landlord is entitled to claim. Thus, if it is intended that the tenant shall pay taxes or assessments, re- build the premises in case of fire, or keep them insured, or that he shall not underlet or assign his lease without the land- lord's consent, it should be stipulated in the agreement, that proper clauses for such objects shall be contained in the lease ; because these things cannot be insisted upon afterwards, unless they have been expressly bargained for. No verbal 1 Fenny v. Child, 2 M. & S. 255. 2 Morgan v. Bissell, 3 Taunt. 65; Tempest v. Rawling, 13 East, 18; Doe V. PoweU, 8 Scott, N. R. 687, 700. » Doe V. Benjamin, 9 Ad. & E. 644; Alderman v. Neate, 4 M. & W. 704. * Wilkinson v. Hall, 3 Bing. (N. C.) 508 ; Curling v. Mills, 6 M. 8e G. 173. 52 THE CEBATION OF A TENANCY. [CHAP. I. explanations or stipulations will be permitted to vary an agreement in writing; for all negotiations between parties, prior to or contemporaneous with the execution of an instru- ment, are merged in it, and cannot be reconsidered.^ But distinct and separable provisions, whether contemporaneous with or prior to the execution of a deed or written lease, will not be merged therein if clearly collateral.^ If an agreement is silent as to what covenants are to be contained in the lease, and expresses only that it is to contain the usual covenants, it means only such as may be exacted, independent of positive stipulation ; being such as are incident to the nature of the contract, and are therefore to be presumed to have been within the contemplation of both parties, in order to secure the full effect of the agreement. These words, however, are quite immaterial ; for, in every agreement of this character, it is implied that there shall be usual and proper covenants.^ 1 Pattison v. Hull, 9 Cow. 747; Broadwell v. Getman, 2 Den. 87; Renard v. Sampson, 12 N. Y. 561 ; Sourwine v. Truscott, 17 Hun, 432 ; Cleves V. WiUoughby, 7 Hill, 83. In this case evidence was disallowed tending to show that the landlord at the time of executing a written lease had promised to repair. The case was followed in Kabus v. Frost, 50 N. Y. S. C. 72. So where the lessor's agreement was to supply certain deficiencies in the furniture of the leased premises, a court refused to reform or cancel the lease, on the ground that agreement had merged. Wilson V. Deen, 74 N. Y. 531. See Van Eps v. Mayor, 12 Johns. 436; Ketchum v. Evertson, 13 id. 859; Fuller v. Hubbard, 6 Cow. 13; H. & N. Y. St. Co. V. Mayor, 6 N. Y. W. E. 134. 2 Witbeck v. Waine, 16 N. Y. 532. Thus an agreement to kill down the game, made at the time of, but not incorporated in, a farming lease, although this reserved a right to keep up and hunt game. Erskine v. Adeane, L. R. 8 Ch. 756; Morgan v. Griffith, L. R. 6 Ex. 71. So where there was a distinct and collateral oral agreement preceding the lease that certain fixtures should remain for the tenant's benefit. Lewis v. Seabuiy, 74 !N. Y. 409. So an agreement by landlord to put in a water-closet. Munn V. Nunn, 43 L. J. (k. s.) C. P. 241. So to repair. Caulk v. Everly, 6 Whart. 303 ; but this was in equity. 8 Wilkins V. Fry, 1 Mer. 263; Gerrard v. Grinling, 2 Swanst. 249. A contract for a lease, though in one case held to embrace a covenant not to underlet or assign, — Folkingham v. Croft, 8 Anst. 700, — has repeatedly received a different construction in Church v. Brown, 15 Ves. 264, 271; Henderson o. Hayward, 3 Bro. C . C. 632 ; while in other cases it has been considered a proper subject for reference and inquiry. Jones v. Jones, 12 Ves. 190; Boardman v. Mostyn, 6 id. 471. SEC. ni.] AN AGREEMENT FOE A LEASE, 53 § 45. Usual Covenants. — What are to be deemed usual covenants will depend upon circumstances; often upon the custom or usage in that respect in the section of country where the premises are situated ; sometimes upon the nature of the property itself ; and it seems to be properly a matter of fact for a jury to determine, and not a question of law.^ It has accordingly been held that a lessor could not, as a. matter of right, demand a covenant of the lessee not to as- sign or underlet without license ;2 not to carry on a particular trade or business on the premises ; ^ or to keep them insured, or to pay land and other permanent taxes.* Nor on the other hand is it usual for a lessor to covenant to rebuild the de- mised premises in case of fire, with a stipulation that the rent shall cease on his failure to do so.^ But a covenant for the lessee's quiet enjoyment, without interruption by the lessor, or by persons claiming under him, is usual in all cases, and is in fact incidental to every lease. 1 Bennett v. Womack, 3 C. & P. 96, 98. This is so where the parties have stipulated for the," usual covenants; " but it is held to be a question of law where the contract for lease is silent. 2 Church V. Brown, 15 Ves. 258; Henderson v. Hay, 3 Bro. C. C. 632. " Common and usual covenants," observed Lord Thurlow in this case, " must mean covenants incidental to the lease. And though the covenant not to assign without license may be a very usual one when a brewer or a vintner lets a public house, that will not make it a common covenant." The law thus laid down was confirmed in Hodgkins v. Crowe, L. R. 10 Ch. 622; Hampshire ». Wickens, 7 L. R. Ch. Div. 555; overruling Haines V. Burnett, 27 Beav. 500. 8 Van V. Corpe, 3 Myl. & K. 269; Propert v. Parker, ib. 280-282. * Bennett v. Womack, 7 B. & C. 627; s. c. 3 C. & P. 96. The agree- ment here was that tenant was to pay a net rent, and this was held to imply all taxes ; but it was decided that otherwise the tenant would not have been bound for the land tax or sewer rate. In Hampshire v. Wickens, supra, it is stated on the authority of Davidson, Free. Conv., vol. 5, pp. 48, 49, that the usual tenants' covenants are: (1) to pay rent; (2) taxes, except those expressly payable by landlord; (3) keep and deliver up in repair; (4) permit landlord to enter and view repairs. 6 Doe V. Sandham, 1 T. R. 705; Medwin v. Sandham, 3 Swanst. 685. Under an agreement for a lease to contain all usual and necessary cove- nants, and particularly a covenant to keep the mill in good tenantable repair, a lessee is not entitled to have introduced into the covenant the words damages by fire or tempest only excepted. Sharp v. Milligan, 23 Beav. 419. 54 THE CEEATION OF A TENANCY. [CHAP. I. § 46. Damages for Breach of Agreement. — Equitable Relief. — The mere signing of an agreement does not, as we have seen, establish the relation of landlord and tenant, although it may- create a right of action for damages for a breach of the con- tract, or for a specific performance of it. And, although an agreement between an intended lessor and lessee may amount to a present demise, yet if, upon the face of it, a further in- strument appears to be necessary to carry the intention of the parties into execution, equity will . decree a specific perform- ance of the agreement in that particular.^ But, to call this branch of equitable jurisprudence into operation, the terms and conditions of the intended lease must either be actually expressed, or fairly to be inferred. ; for, if any material por- tion of the terms be omitted or left in doubt, the court will regard the transaction as imperfect and resting in treaty only .2 And where a tenant in possession proposed to pay an increased rent, a bill for a specific execution of the proposal was dismissed, because the period when the increased rent should commence was not agreed upon ; and the same thing has been done in other cases, where no mention was made of the terms of the proposed lease.^ But where an agreement, 1 Fenner v. Hepburn, 2 Y. & C. 159. Parol terms of agreement for a lease, drafted by mutual consent by lessee, were received by lessor withr out objection, and lessee was let into possession. Held, that there had been such part performance as to prevent the lessor from setting up the Statute of Frauds. Cain v. Coombs, 1 De G. & J. 34; and see Wharton V. Stoutenburgh, 35 N. J. Eq. 266. But the fact that a tenant was in possession when a parol agreement for future letting was made, and made certain improvements in consideration of the expected lease, is held not to create a sufficient equity to take the case out of the operation of the statute. Whiting v. Pittsburg Opera House Co., 88 Pa. St. 100. ^ Gordon v. Trevelyan, 1 Price, 64; Verlander v. Codd, 1 Turn. & R. 352; 1 Younge & C. 82, 441. Thus an agreement to take a lease of a house if it shall be put in thoroughirepair, and the drawing-rooms hand- somely decorated according to the present style, was held to be too uncer- tain for the court to enforce. Taylor v. Partington, 7 De G. , M. & G. 328. A similar result followed the absence of a stipulation in the agree- ment respecting the duration of the proposed lease, Myers ». Forbes, 24 Md. 598; or of a definite description of the area leased. Lancaster v. De Trafford, 31 L. J. Ch. 554; Davis v. Shepherd, L. R. 1 Ch: 410. s Lord Ormond v. Anderson, 2 Ball. &B. 363; Clinan v. Cooke, 1 Soh. & L. 22; O'Herlihy v. Hedges, ib. 128. SBC. UI.] AN AGEEEMENT FOR A LEASE. 65 uncertain in itself, refers to another written instrument for greater certainty, or to a particular plan, as forming part of the contract, parol evidence is admissible to identify the writing or the plan ; though if the evidence be not clear and satisfactory, specific performance of such an agreement will generally be refused.^ § 47. Remedy at Law. — Specific Performance. — Upon the breach of an agre'ement to give a lease, the plaintiff may recov- er, in an action at law, the damages and expenses incurred by him in preparing to remove to and occupy the premises, together with the difference between the real value of the lease and the contract price.^ But, in seeking specific performance, he must not only make it appear that he is endeavoring to en- force a fair and reasonable contract, but must also show that his own conduct, in reference to it, has been fair, and free from suspicion ; for, if there be a reasonable doubt thrown upon the transaction in either respect, he will be left to his legal remedy for the non-performance of the contract.* And therefore where a party to an agreement acted to the preju- 1 Hodges V. Horsfall, I Russ. & M. 116; Clinan v. Cooke, 1 Sch. «e L. 33. Where a landlord agreed to grant leases of successive plots of ground, as houses upon each of them should be built to a certain stage, when the assignee of the builders' interest had completed houses upon some of these plots, he was held to be entitled to leases of those plots, although he dis- claimed all interest in the remaining plots. Wilkinson v. Clements, L. R. 8 Ch. 96. 2 Ward V. Smith, 11 Price, 19 ; Driggs v. Dwight, 17 Wend. 71 ; but not the profits which he might have made if he had obtained possession. Giles V. O'Toole, 4 Barb. 261. And see post, § 317. « Flood V. Finlay, S Ball & B. 16; O'Rourke v. Percival, ib. 58; Harris v. Kemble, 1 Sim. 111. The remedy by specific performance is discretionary. The question is not, what must the court do, but what in view of aU the circumstances of the case should it do, to further justice. When a contract has been fairly procured, and its enforcement will work no injustice or hardship, it is enforced almost as a matter' of course; but if it has been procured by any sort of fraud or falsehood, or its enforce- ment will be attended with great hardship or manifest injustice, the court will refuse its aid. Plummer v. Keppler, 26 N. J. Eq. 481 ; Miss. R. R. Co. V. Cromwell, 91 U. S. 643; Fish v. Leser, 69 111. 394. And the plaintiff must perform on his own part the conditions prescribed as to be performed by him in the agreement. Williams v, Briscoe, 22 Ck D. 441. 56 THE CREATION OF A TENANCY. [CHAP. I. dice of the other party, as if he had abandoned his contract to take a lease, his bill for specific performance was dismissed.^ Nor will an agreement to grant a lease be enforced in favor of a tenant where evidence is adduced of his having been guilty of fraud or felony ; or on proof of his insolvency, or of a com- mission of waste ; or that there was a want of good husbandry on his part, whilst holding under the agreement for a lease.^ § 48. Agreement to lease, when enforced in Equity. — The court will not compel the acceptance of a lease, unless the party seeking performance is able to perform the contract on his part, by granting a secure lease for the term agreed upon ; and an offer of pecuniary compensation, in case of eviction, will not alter the case, because such indemnity cannot extend to the specific object of the contract, which is the possession and occupation of the premises.^ But where a man contracts to grant a lease of an estate, when he is entitled to only a portion of it, the contract may be enforced by the proposed lessee, as to that part of which the grantor is owner.^ An agreement, however, by a person out of possession, to grant a present lease to a party who is apprised that he cannot obtain possession of it except by suit, will not be enforced ; for this becomes a contract for a lawsuit, which is not a lawful sub- ject of contract, and is not therefore a valid agreement for a lease.^ But a person who has contracted for the lease of a 1 Garrett v. The Earl of Besborough, 2 Dru. & Walsh, 441. " Willingham v. Joyce, 3 Ves. 168 ; Brooke v. Hewitt, id. 253 ; Buck- land V. Hall, 8 id. 92; Featherstonhaugh v. Fenwick, 17 id. 313; Pearson V. Knapp, 1 Myl. & K. 312; Hill v. Barclay, 18 Ves. 63. But the insol- vency must be general; one instance of non-payment of rent will not suffice. Neale v. McKenzie, 1 Keen, 474. Equity will not compel spe- cific performance of a lessee's agreement with a third party, to assign a lease in which he has covenanted with the lessor not to assign without license ; since, as the third party seeking relief must treat the lease as existing, he must take it with the covenant against assignment as in force. Willmott v. Barber, 15 Ch. D. 96. - Fildes V. Hooker, 2 Mer. 424. * O'Rourke v. Percival, 2 Ball & B. 64. ' Bayly v. Tyrrell, 2 Ball & B. 358. So where tenant may be subjected to lawsuit: Pegler v. White, 33 Beav. 403; or to excessive expense to repair: Tildesley v. Clarkson, 30 id. 419. SEC. III.] AN AGKEEMENT FOK A LEASE, 57 mine cannot resist performance, merely on the ground of his ignorance of mining matters, and that the mine turns out to be worthless.! § 49. Agreement must be in 'Writing unless confessed or partly performed. — As a general rule, also, the specific performance of an agreement for a lease will be ordered only when it is in writing, and conforms to the statute in all other respects ; but it may be decreed, although not in writing, if it is fully set forth in the bill and confessed by the answer ; ^ or if it has been partly carried into execution by the performance of such acts as clearly appear to have been done with a view to the agreement being fully performed ; or under such circum- stances as would manifestly operate as a fraud upon the other party unless the agreement should be so performed.^ And in all cases, a plaintiff is expected to exercise due diligence in enforcing his claim ; for an application of this kind, being addressed to the discretion of the court, will not be enter- tained in favor of a person who has long slept on his rights, or acquiesced in a title and possession adverse to his claim.* 1 Haywood v. Cape, 25 Beav. 140. 2 Att'y-General v. Sitwell, 1 Younge & C. 583. « Ante, §§ 32, 33; Nunn v. Fabian, L. R. 1 Ch. 35; where payment by the tenant of one quarter's rent, at the new rate, took a verbal con- tract for a further lease for^twenty-one years out of the statute. So where the proposed lessee had entered, ostensibly as under the lease, and had paid rent, and the lessor, relying upon the lessee's good faith had made improvements on the premises, a decree was made that the lease be executed by the tenant. Seaman v. Aschermann, 51 Wis. 678; Same v. Same, 57 id. 547. Although the subject of a specific performance of contracts is not strictly within the scope of this work, it may not be en- tirely foreign to our purpose to observe incidentally that, in general, a specific performance will not be enforced where accident or mistake would render it inequitable; Schmidt v. Livingston, 3 Edw. 213; Clowes v. Higginson, 1. Ves. & B. 524; or where the transaction is tainted with fraud, surprise, or misrepresentation: Veeder v. Fonda, 3 Paige, 94; Faure v. Martin, 7 N. Y. 210; Best v. Stow, 2 Sandf. Ch. 298; or may appear to be unreasonable or to work injustice: Story, Eq. §§74, 769; Mathews v. Terwilliger, 3 Barb. 50; Clarke v. Roch. R. R. 18 Barb. 3.50. See also Fombl. Eq. 45-48, 281; 1 Story, Eq. § 712; Seymour v. Delancey, 6 Johns. Ch. 222 ; Slocum v. Clossen, 1 How. Ap. Cas. 705, 751. * Moore ». Blake, 1 Ball & B. 62 ; Hudson v. Bartram, 3 Madd. 440; 58 THE CREATION OV A TENANCY, [CHAP. I. And whether the laches consisted in not prosecuting, or in not commencing a suit, is immaterial ; but the doctrine of laches does not apply to a contract in part executed, by the party's having been in the enjoyment of benefits given Mm by the contract.! Hertford v. Boore, 5 Ves. 720; Mix v. Balduc, 78 El. 215; Peck v. Brigh- ton Co., 69 id. 200; McDermid v. McGregor, 21 Minn. 111. J- Clarke v. Moore, 1 Jones & Lat. 723. If a person has agreed to ex- ecute a lease, or other deed by a certain day, he is not in default until the party who is to receive it, being entitled thereto, has demanded it. In England the party entitled to a deed is bound to have it drawn, and presented for execution; but our law has not gone so far. The party who is to give the deed should have it drawn at his own expense, execute it, and hold it ready for delivery when called for. The lessee may, of coui'se, if he thinks pi'Oper, prepare the deed, and tender it for execution. Carpenter v. Brown, 6 Barb. 149, overruling the cases of Connelly v. Pierce, 7 Wend. 129; Fuller v. Hubbard, 6 Cow. 1. But a deed is not complete, nor is the grantee bound to accept it, unless it is in a condition to entitle it to be recorded, by having a proper clerk's certificate attached to it, when it is to be recorded in a county different from that where it was acknowledged. Smith v. Smeltzer, 1 Hilt. 287. SEC. I.] TENANCY m FEE OE FOR LIFE. 59 CHAPTER IT, OP THE DIPPEEENT SPECIES OP TENANCY. SECTION I. TENANCY IN PEE OR POB LIFE. § 50. Fee may be created in form of Lease. — Lands and tenements may be granted in fee by a deed in which rent is reserved or covenanted to be paid.^ Sometimes other cov- enants are inserted with conditions to enforce the grantee's performance. But such instruments are more properly con- veyances than leases, creating no tenure, and having little else in common with the latter class of instruments than the reservation or charge of a rent, vdth the covenant or condition that secures, and the remedies by action, entry, or distress that enforce, the grantee's payment thereof. The reader is therefore referred for further consideration of such convey- ances to the chapters in which "these topics are treated of in detail.2 § 51. Tenancies for years and for Life distinguished. — We have already noticed a material difference between leases for years and leases for a life or lives, in that the latter confer a freehold, while the former, without respect to their periods of duration, amount to no more than a mere chattel interest.* ^ Saunders v. Hayes, 44 N. Y. 79; and see Watterson v. Keynolds, 95 Pa. St. 474. 2 Post, §§ 261, 284, 285, 370, 440, &c. * Flannery v. Rohmayer, 49 Conn. 27; Faler v. McRae, 56 Miss. 227. 60 DIFFEEENT SPECIES OP TENANCY. [CHAP. II. More important distinctions are, that an estate for life cannot be made to commence infuturo, nor can it be created merely by parol. Other incidents of this estate, so far as they are applicable to our subject, and the various particulars by which the law distinguishes freehold interests from chattels real, will be noted from time to time as we proceed. § 52. Life Estate, how created. — An estate for life may be created either by express limitation or by a grant in general terms. If made to a man for the term of his own life, or for that of another person, he is called a tenant for life. But the estate may also' be created by a general grant, without defining any specific interest ; as where a grant is made to a man, or to a man and his assigns without any limitation in point of time, it will be considered as an estate for life, and for the life of the grantee only.^ A grant may also be made to one or more persons, to endure for their joint lives, or the life of the survivor, as well as for the life of a stranger. And when it is intended that a lease to two or more persons shall determine on the life of either, the grant should be stated to be for and during their joint lives. If the interest is to con- tinue to the survivor, it is sufiicient to grant it generally for their lives, without inserting words of survivorship ; and on the death of either, the entire estate will survive to the other. But if the lease be granted for a certain term of years, if the lessees shall so long live, the interest will determine with the death of one. § 53. Without limitation in time. Estate is for life. — Where a grant is made, subject to be defeated by a particular event, and there is no limitation in point of time, it will be ah initio a grant of an estate for life, as much as if no such event 1 Co. Lit. 42, a; Jackson r. Embler, 14 Johns. 198; Clearwater ?;. Rose, 1 Blackf. 137; Gray v. Parker, 4 W. & S. 17. This common-law provision is modified by 1 N. Y. R. S. 748, § 1. Every grant of land, or of any interest therein, shall pass all the estate or interest of the grantor, without the use of the word "heirs" or other words of inheritance; unless the intent to pass an inferior estate or interest shall appear by express terms, or by necessary implication. SEC. n.] FKOM YEAR TO YEAR. 61 had been in contemplation. As if a grant be made to a man so long as he shall inhabit a certain place, or to a woman dur- ing her widowhood ; as there is no certainty that the estate will be put an end to by the change of habitation, or by the marriage of the respective lessees, the estate is as perfect an estate for life, until such an event takes place, as if it had been so granted in express terms.^ And in a case where the plaintiff agreed to pay the defendant one hundred pounds per annum during the defendant's life, for which the plaintiff was to have the defendant's land and negroes, the court held it to be substantially a lease for the life of the defendant, and not an absolute sale, as was contended.^ Estates for life are fre- quently created by will, for the purpose of providing a main- tenance for some of the testator's family. And whenever a devise of land is made without words of perpetuity, and there is nothing in the will from which a fee can jj^ raised by impli- cation, the devisee takes only a life-estate. an M ejf LEASES FOR TBARir AND FROM YEAR TO YEAR. § 64. How creatj^ — Leases may be granted, in express terms, for ipne,j brj^ore years, or for any part of a year ; andj in eitheMgase/ffie lessee will be treated as a tenant for years, and is.Mially so called. The ordinary mode of leasing is for 1 QSmAi. 42, a; Com. Landl. & T. 4. So where the term was to last so IdflEs the lessor should use the premises for the purpose of carrying on a certain manufacture. Warner v. Tanner, 38 Ohio St. 118. But see Gilmore v. Hamilton, 83 Ind. 196. An estate for life, even if determin- able when the rents shall have paid a debt to the lessee, is a fi-eehold, which cannot be created without deed. ' People v. Gillis, 24 Wend. 201. A lease to a man, his executors, administrators, and assigns forever, is a lease for life. Williams v. Woodard, 2 id. 487; Bloomer v. Waldron, 3 Hill, 3«1. 2 Mickie v. Ex'rs of Wood, 5 Rand. 574 ; Newton v. Wilson, 3 Hen. & M. 470; Maverick v. Lewis, 3 McCord, 211. * Jackson v. Embler, supra; Witherspoon v. Dunlap, 1 McCord, 546; Gray v. Parker, supra. 62 DIFFERENT SPECIES OF TENANCY. [CHAP. II. a specified term of years ; but if no particular period of time is limited for its duration, a tenancy from year to year will arise. This species of letting, where no certain time is men- tioned, according to the strictness of the ancient law, continued during the pleasure of the parties, and might have been put an end to at any time, by either party ; the lessee, in such case, being in fact a mere tenant at will. But it was determined at an early period, upon principles of justice and sound policy, that estates at will were at the will of both parties, and neither of them was permitted to exercise his pleasure contrary to equity and good faith. The lessor could not terminate the estate after the tenant had sown, and before he had reaped his crop, so as to prevent the necessary egress and regress to take away the emblements ; ^ nor could the tenant, before the usual period for the payment of rent had arrived, determine the estate so as to deprive the landlord of the rent which would accrue at that time.^ § 55. Arise from general Occupation. — Since the time of the Year Books, however, the courts have treated a general occupation by permission, no time being fixed for its continu- ance, as a tenancy from year to year, whenever the reserva- tion of rent or other circumstances indicated an agreement for an annual holding.^ A tenancy of this description is not 1 Jackson v. Bradt, 2 Caines Cas. 169 ; Ellis v. Paige, 2 Pick. 71, n. 2 Sullivan v. Enders, 3 Dana, 66; Kighly v. Bulkley, 1 Sid. 338. A , tenant at will cannot put an end to his tenancy, even by an assignment ■without giving notice to his landlord. Pinhorn v. Souster, 8 Exch. 763. * Jackson v. Wilsey, 9 Johns. 267; Craske v. Christ. Un. Pub. Co. 17 Hun , 319 ; Lesley v. Randolph, 4 Rawle, 123 ; Thomas v. Wright, 9 S. & E. 87; Hey v. McGrath, 81» Pa. St. 310; Roe v. Lees, 2 W. Bl. 1171. Richaldson v. Langridge, 4 Taunt. 128, 131. By R. S. Ind. 1876, p. 338, § 2, R. S. 1881, §§ 5208, 5209, all general tenancies in which the prem- ises are occupied by the express or constructive consent of the landlord are to be deemed tenancies from year to year. See Tolle v. Orth, 75 Ind. 298. In Cattley i;. Arnold, 1 Johns. & H. 651, 656, it is said, " As early as the reign of Hen. VIII., on any holding on which annual rent is re- served, the tenant is entitled to one half year's notice to quit." It is often stated that tenancies from year to year have been implied from the ear- liest times, whenever there was a general holding, without regard to an- nual rent or other circumstances pointing to a yearly tenancy. 4 Kent, SEC. II.] FROM YEAR TO TEAR. 63 determinable at the end of any current year, unless a proper notice to quit shall have been previously served by the party intending to dissolve the tenancy upon the other ; ^ in default Com. 113; Pai-ker v. Constable, 3 Wils. 25; Jackson v. Bryan, 1 Johns. 322; Wilmot, J., in Timmins v. Rawlinson, 3 Burr. 1609; Putnam, J., in Ellis V. Paige, 2 Pick. 71, n. ; Doe v. Watts, 7 T. R. 85; and see Lea- vitt' V. Leavitt, 47 N. H. 329. But such a proposition is ilot borne out by authorities ancient or modern. In the earliest times all parol tenancies were at the will of the lessor, even though expressly for years, or from year to year: Smith L. & T. 8; 14 Hen. VIII. 13; apd when at will from year to year were only after a struggle held at the will of both parties : Litt. § 68; Co. Litt. 55, a; Keilw. 65, pi. 6; ib. 162, pi. 4; 13 Hen. VIII. 16 pi. 1 ; 14 id. 13. A regard for the tenant's right to emblements also allowed him to enter and take the crop, or even to remain until it was fit for re- moval. 35 Hen. VI. 24 pi. 30; 13 Hen. VIII. 16 pi. 1; Kighly v. Bulkley, 1 Sid. 339. But this was only in farming tenancies : 14 Hen. VIII. c. 13 ; Smith L. & T. 20; and only formed one element in establishing a holding from year to year. Ib. And see Leavitt v. Leavitt, 47 N. H. 340. And it will be found that in all these cases there was either an express parol demise from year to year, or rent paid in reference to such a period. Since the Statute of Frauds, the authorities have been equally clear in requiring an annual holding or rent, &c. Roe v. Lees, supra. In Richardson v. Langridge, the court say: " Surely, the distinction has been a thousand times taken; a mere general letting is a letting at will; if the lessor ac- cepts yearly rent, &c., that is evidence of a taking for a year." This is quoted and afSrmed in Braythwayte v. Hitchcock, 10 M. & W. 497; Doe V. Wood, 14 id. 682, 686; and is the settled law in England. Cattley V. Arnold, 1 Johns. & H. 651, 656; Smith & Soden, L. & T. 48-52, and cases there cited. And see post, § 56, notes 2 and 3. Of the cases appar- ently contra; in Timmins v. Rawlinson, and Doe v. Watts, there was an express annual demise and rent paid or reserved. Jackson v. Bryan is inconsistent with Jackson v. Bradt, 2 Caines, 169 ; and Bradley v. Covel, 4 Cow. 350. In Jackson v. Miller, 7 id. 747, the case was between ven- dor and vendee. In Den v. M'Kay, 1 Penningt. 420, the occupant for fifteen years was held only entitled to " some notice." In Leavitt v. Leavitt, the oral demise was not general, but for lite; and in every case cited in the elaborate judgment of Putnam, J., 2 Pick. 71, n., the demise was referable to a yearly holding, or the decision turned on the right to emblements. This is ably shown in Rich v. Bolton, 46 Vt. 84, which sustains the text; and, to the same effect are Williams v. Deriar, 31 Mo. 13; Jones v. Willis, 8 Jones, (N. C.) 430; Johnson v. Johnson, 13 R. I. 467. In Massachusetts and Maine, tenancies from year to year are un- known. Ellis V. Paige, 1 Pick. 43; Withers v. Larrabee, 48 Me. 570. 1 The right to determine such a tenancy is, however, an inseparable incident thereof; and will even control an express clause that such a ten- 64 DIFFERENT SPECIES OF TENANCY. [CHAP. II. of which the tenancy will run on from year to year, until some event happens which, in contemplation of law, destroys it.^ And this rule applies to the tenant as well as to the landlord. Even if the tenant gives up the premises to an under-tenant, the landlord may still look to him for the rent of that year, unless he has accepted the incoming tenant, and received rent from him ; for, in that case, he will be deemed to have made his election to accept him as a tenant.^ § 5Q. Arise from void parol Demises for Years. — This im- plied tenancy, from year to year, will arise in the cases where occupation is had imder a parol demise for years, void because exceeding the periods allowed by the Statute of Frauds.^ So, anoy is to continue as long as rent is paid ■without disturbance from the lessor. Doe v. Browne, 8 East, 165; Holmes v. Day, 8 Ir. R. C. L. 235; West Tr. Co. v. Lansing, 49 N. Y. 499. And a surety of lessee may avail himiself of this right. Pleasanton's Appeal, 75 Pa. St. 344. 1 Right V. Darby, 1 T. R. 159; Clayton v. Blakey, 8 id. 3; Witt v. New York, 5 Rob. (N. Y.) 248. A tenancy from year to year is not to be considered as a continuous tenancy, but as recommencing every year. Gandy v. Jubber, 5 B. & S. 78. In Oxley v. James, 18 M. & W. 214, Parke, B., says, " The nature of an estate from year to year " is " a lease for a year certain with a growing interest during every year there- after, springing out of the original contract and parcel of it; " cited and • approved in Cattley v. Arnold, supra; where it is said, p. 656, "conse- quently the moment any new year begins, the tenant has a right to hold to the end of that year." But whether the holding over the term or pay- ment of rent is with intent to continue as tenant from year to year, is for the jury. Jones v. Shears, 4 Ad. & E. 832; Doe v. Crago, 6 C- B. 90; Skaggs V. Elkus, 45 Cal. 154; Gray v. Bompas, 11 C. B. n. s. 520. A tenancy from year to year cannot be determined, so as to bar the interest of the tenant's creditors, unless there is either a legal notice to quit, or a surrender in writing. Doe v. Ridout, 5 Taunt. 519. 2 Levi V. Lewis, 6 C. B. n. s. 766; Ibbs v. Richardson, 9 Ad. & E. 849; Den v. Mcintosh, 4 Ired. 291; Tomkins v. Lawrance, 8 C. & P. 729. But merely receiving rent from him is not conclusive. Simkin v. Ashurst, 1 C. M. & R. 261. y f 8 Doe 0. Bell, 5 T. R. 472; Doe v. Weller, 7 id. 47^Clayton v. Blakey, 8 id. 3; Knight v. Bennett, 3 Bing. 361; Berry v. Lindley, 3 M. & G. 498; Barlow v. Wainwright, 22 Vt. 88; Schuyler v. Leggett, 2 Cow. 660; People v. Rickert, 8 id. 226; Lounsbery v. Snyder, 31 N. Y. 514; Greton v. Smith, 33 id. 245; Thomas v. Nelson, 5 id. 118; Thomas v. Nelson, 69 id. 118; Laughran v. Smith, 75 N. Y. 205 (but see Prial v. SEC. II.] FROM YEAR TO YJIAR. 65 where a tenant for years holds over and pays rent, he is im- pliedly bound by the terms of his former tenancy.^ But where three persons entered upon the premises under a lease for seven years, which was not signed by the lessor, and was therefore under the Statute of Frauds to be considered a mere tenancy at will, and payments of rent were made, which were not shown to be with the assent of one of the three who had not resided a year on the premises, it was held that, as against her there was no evidence of a tenancy from year to year ; for, to establish this, it was said the agreement of all the parties must be shown.^ § 57. But not on Demises for less than a Year. — Where, however, a tenant for a term less than a year, whether for a quarter, month, or week, holds over ; ^ or where the letting is by the quarter, month, or week indefinitely, and not as for an aliquot part of the year, the tenancy is from quarter to quar- ter, &c., until a notice to quit, proportionate to such holding, Entwistle, 10 Daly, 398); Freidhoff v. Smith, 13 Neb. 5; Koplitz v. Gus- tavus, 48 Wise. 48; Williams v. Ackerman, 8 Oregon, 405; Railsback v. Walker; 81 Ind. 409; Loekwood v. Lockwood, 22 Conn. 433; Thurber V. Dwyer, 10 R. I. 355; Shepherd v. Cummings, 1 Coldw. 354; and the lease though void may be referred to, to ascertain and regulate the rights of the parties, ii. ; and see Porter v. Bleiler, 17 Barb. 149; Martin v. Smith, 43 L. J. Exch. 42. So if the rent be reduced and possession con- tinued, and rent paid and accepted, the provisions of the old lease will govern the relations of the tenancy so far as applicable. Singer Mfg. Co. V. Sayre, 75 Ala. 270. 1 Thiebaud v. Vevay, 42 Ind. 212; (see Montgomery v. Commission- ers, 76 id. 362); ToUe v. Orth, 75 id. 298; Coomler v. HeflEner, 86 id. 108; Bright v. MoOuat, 40 id. 521; Schuyler v. Leggett, supra; Hall v.' Myers, 43 Md. 446; Hutton v. Warren, 2 Gale, 71; Stoppelkamp v. Mangeot, 42 Cal. 816; Cobb v. Kidd, 19 Blatch. 560; Hibbard v. New- man, 2 Baxt. 285; and see cases post, § 525. If the tenant has been noti- fied that if he remains it will be at a higher rent, he is presumed to accept these terms by holding over. Mack v. Burt, 5 Hun, 28; Despard v. Wal- bridge, 15 N. Y. 874; Reithman v. Brandenburg, 7 Col. 480. But aliter if the landlord further demands possession. Stoppelkamp v. Maugeot, supra. ^ Doidge V. Bowers, 2 M. & W. 365; Denn v. Fearnside, 1 Wils. 176; Goodtitle V. Herbert, 4 T. R. 680. 8 Stoppelkamp v. Maugeot, supra; Bright v. MoOuat, 40 Ind. 521. VOL. I. — 5 66 DIFFERENT SPECIES OP TENANCY. [CHAP. II. is given.^ But no such continuing tenancy will be held to exist where the agreement stipulates for the payment of rent, and for occupation during a simple quarter or month ; ^ or though the rent agreed to be paid is annual, if the tenant is expressly stated to hold at the lessor's will and pleasure.^ § 58. How determined. — Although a tenancy from year to year originally differed from a tenancy at will only in regard to the right of either landlord or tenant to a formal notice to quit,* yet the absolute right to such a notice has, in fact, made the former no longer a tenancy at will, but a term subject to be determined by a regular notice to quit expiring with the tenant's year.^ This species of tenancy is not deter- mined by the death of either the lessor or lessee;^ it is 1 Doe V. Hazell, 1 Esp. 94; Doe v. Raffan, 6 id. 4; Anderson v. Prin- dle, 23 Wend. 616; People v. Botsford, 47 N. Y. 666; Jones v. Willis, 8 Jones (N. C), Law, 430; Stoppelkamp t. Maugeot, supra; Skaggs v. Elkus, 45 Cal. 154; HoUis v. Burns, 100 Pa. St. 206; Rothschild v. Wil- liamson, 83 Ind. 387; Coomler v. HefEner, 86 id. 108. Where the tenant holding over proposed to pay a certain monthly rent until he could find another place, and the landlord made no reply, but accepted the rent for the current month, and announced the premises for rent, it was held that this created a monthly tenancy until the tenant should find another place, and not longer. Hoffman v. McCollum, 93 id. 326. And see Com. Dig. Est. H. 9 ; Hammon v. Douglas, 50 Mo. 434, 437. Coffin v. Lunt, 2 Pick. 711. But see Huffell v. Armistead, 7 C. & P. 56. 2 Wilkinson v. Hall, 3 Bing. (N. C.) 508; Blumenberg v. Myres, 32 Cal. 93; Stoppelkamp v. Maugeot, supra. 8 Doe V. Cox, 11 Q. B. 122. * Phillips V. Covert, 7 Johns. 1; per Kent, C. J. This was a dictum, correct as to the origin of such tenancies, but not law when uttered. See notes 5-10, infra. It was, however, repeated and acted on in Bradley v. Covel, 4 Cow. 349; and Nichols v. Williams, 8 id. 13, as if sound; and in this last case the tenant's right to notice was limited to the action of ejectment, and he was held liable in summary process without any notice whatever. * Cattley v. Arnold, supra ; Oxley v. James, 13 M. & W. 209. And the same is true of continuing tenancies, though for a less period than a year. " Maddon v. White, 2 T. R. 159; Doe v. Porter, 3 id. 13; Doe v. Wood, 14 M. & W. 682; Botheroyd v. Woolley, 5 Tyrw. .522; Cattley v. Arnold, supra,. SEC. in.] AT WILL. 67 assignable and demisable ;i though only during its continu- ance ; 2 it may also be mortgaged ; ^ and may be pleaded as a term.* SECTION III. TENANCY AT WILL. § 59. How created. — Tenancies at will may be created by express words, or they may arise by implication of law. Formerly, all leases for uncertain periods were held to be tenancies at will merely; and if a termor granted the land generally, the grantee was but a tenant at will,^ for, as it did not appear that the grantor meant to pass his whole interest, an estate at will was held to satisfy the grant.^ But, in mod- ern times, courts have evinced a disposition to construe ten- ancies of this description into tenancies from year to year,' ' Pleasant v. Benson, 14 East, 234 ; Maokay i'. Mackeith, 4 Doug. 213 ; Cody V. Quarterman, 12 Ga. 386; Curtis v. Wheeler, 1 Mood. & M. 493; Austin V. Thomson, 45 N. H. 113. In Hemphill v. Giles, 66 N. C. 512, however, it seems held that an assignment of the landlord's title divests the tenant of his right to notice. « Pike V. Eyre, 9 B. & C. 909. ' Burrowes o. Gradin, 1 Dowl. & L. 213. * Howe V. Kensett, 3 Ad. & E. 659 ; Tomkins v. Lawrance, 8 C. & P. 729; Cattley v. Arnold, supra; Parrott v. Barnes, Deady, 405. Hence a demise by a tenant from year to year, for a term of years, is no assign- ment; for by possibility his tenancy may outlast the term, and he has therefore a reversionary interest in which he may distrain. Oxley o. James, supra. * See Johnson v. Johnson, 13 K. T. 467, where it is held, following Kent, 4 Com. 144, that " if a tenant be placed on the land without any terms prescribed and as a mere occupier, he is strictly a tenant at will." To the same effect, Le Tourneau v. Smith, 53 Mich. 473. » Griffin's Case, 2 Leon. 78. ' Doe V. Wood, 14 M. & W. 682. Where there has been an agree- ment for a lease, and an occupation without payment of rent, the occupant is a mere tenant at will. Braythwayte v. Hitchcock, 10 M. & W. 494. If he afterwards pays rent under that agreement, he becomes tenant from year to year. But in order to establish a tenancy from year to year, the payment of rent must be in reference to a yearly holding. lb. The re- ceipt of rent may be explained so as to rebut the implication of a yearly 68 DIFPEEENT SPECIES OE TENANCY. [CHAPi U. provided any circumstances appeared referable to an annual holding.^ § 60. strict and General. — Notwithstanding this disposition, therefore, tenancies at will do still subsist. But a distinction must be observed between a strict and a general tenancy at will. The former species has only the rights of an ancient tenancy at will or at sufferance, being in fact little more than a license to be upon the land, determinable by entry or demand, and often does not create the relation of landlord and tenant, nor render the occupant liable for rent in an action for use and occupation, nor entitle him to notice to quit ; 2 wliile the latter confers the rights which tenancies at will subsequently acquired, including a reasonable notice to quit ; and subjects the occupant to all the liabilities of ten- ants proper, as well as for use and occupation. Thus a per- son who holds rent-free by permission of the owner, or who enters upon the premises under an agreement to purchase, or for a lease, but has not paid rent, or refuses to accept a lease, is strictly a tenant at will.^ A parol gift of lands also tenancy which arises from payment thereof. Doe v. Crago, 6 C. B. 90. It is held that a tenancy at will is changed into a tenancy for fixed term by an agreement that, at a future day named, the tenant shall vacate and surrender the premises. Engels v. Mitchell, 30 Minn. 122. 1 Ante, §§ 5.5, 56, and notes. In Indiana,, by statute, 2 Gavin & H. 359, no tenancy at will can arise except by express agreement. But holding over, under a privilege to that effect in the lease, was held such an agree- ment. Bright V. McOuat, 40 Ind. 521; Knight v. Ind. Coal Co., 47 id. 105. A tenancy at will does not arise before entry by the lessee. Pol- lock t'. Kittrell, 2 Tayl. 153; Hardy v. Winter, 38 Mo. 106. ^ The possession of a tenant at will is the possession of the lessor. Den V. Fearnside, 1 Wils. 175. 8 Kirtland o. Pounsett, 2 Taunt. 145; Doe v. Stanion, 1 M. & W. 700; Doe V. Miller, 5 C. & P. 595; Prop'rs v. McFarland, 12 Mass. 325; Gould V. Thompson, 4 Met. 224; per Clarke, J., Sarsfleld v. Healey, 50 Barb. 246; Herrell v. Sizeland, 81 111. 457; Rich v. Bolton, 46 Vt. 84; ante, § 25, n. By statute in New Hampshire, Vermont, and Ohio, as well as in Massachusetts and Maine, all parol leases are at will; in the three first-named States these may become tenancies from year to year. Ante, § 55, n ; Thomas v. Sanford Steamship Co., 71 Me. 548. Though a person in possession under a verbal contract of purchase is a tenant at will, he is not liable for rent so long as he performs the terms of his contract, or SEC. m.] AT WILt. 69 creates thia species of tenancy ; and if the donee makes a lease for years, it is void and cannot be rendered valid by any subsequent assent of the donor .^ So if the agreement be to let the premises so long as both parties choose, reserving a compensation to accrue de die in diem and not referable to a year, or to any aliquot parts of a year, it creates a strict tenancy at will.^ And where a party enters into the posses- sion of premises under an agreement to accept a lease for twenty months, and subsequently refuses to accept the lease, he becomes, by such refusal, a strict tenant at will, for he may be ejected immediately.* But if the landlord accepts rent from him monthly, or according to the terms of the original agreement, a general tenancy at will is created, com- mencing from the time of entry* If a tenant whose lease has expired is permitted to continue in possession, pending a treaty for a further lease, he is not a tenant from year to year, but so strictly at will that he may be turned out of these are waived by the vendor. And all improvements made by such person while the contract is in force are made by virtue of the contract and not as tenant, and so these become a part of the freehold. Lapham V. Norton, 71 id. 83. 1 Jackson, v. Rogers, 1 Johns. Cas. 33; Jackson v. Bradt, 2 Caines, Cas. 169; Patterson v. Stoddard, 47 Me. 355; Jones v. Jones, 2 Kich. 542. 2 Richardson v. Langridge, 4 Taunt. 128; Say u. Stoddard, 27 Ohio St. 478; Leavitt v. Leavitt, 47 N. H. 229, 340; Grovenor v. Henry, 27 Iowa, 269. A written lease is at will if no termination is fixed, though an annual rate of rent is agreed upon, and the lessor has the right to re- enter after two years: Murray v. Cherrington, 99 Mass. 229; Cndley ». Randall, 4 Mod. 9. Aliter, when the lease is for a definite number of years, with provision that it shall continue for another year thereafter unless terminated by notice. Dix v. Atkins, 130 Mass. 171. A written agreement for an uncertain time is at will: Gardner v. Hazelton, 121 Mass. 494; or not fixing any time or rent: Larned v. Hudson, 60 N. Y. 102. See also Morton v. Woods, 9 B. & S. 632, 644. A tenant who holds over under promise of a lease is at will, not at sufferance. Emmons V. Scudder, 115 Mass. 367. 8 Dunne v. Trustees, 39 HI. 578; Denn v. Fearnside, 1 Wils. 176; Doe V. Watts, 7 T. R. 83; Bennett e. Ireland, Ellis, B. & E. 326; Chamber- lain V. Dunshee, 45 Vt. 50; Rich v. Bolton, supra. < Anderson v. Prindle, 23 Wend. 616; Milling v. Becker, 96 Pa. St. 182. 70 DIFFEEBNT SPECIES OF TENANCY. [CHAP. 11. possession without notice.^ But while a man who enters under a void lease is strictly at will,^ if he pays rent he becomes a general tenant at will or from year to year accord- ing to circumstances ; although a notice to quit will always terminate this tenancy, or turn it into a tenancy from year to year.2 § 61. Strict and General distinguished. — The agreement, express or implied, for a periodical rent or time is the usual criterion to distinguish between general tenancies at will, and those strictly so.* The decisions in regard to the former class of tenancies have chiefly turned on the question of notice ; and without further adjudication it is difficult to say how far the characteristics of a term, such as assignability, &c., which have been held to belong to tenancies from year to year,^ will be construed to apply to the former class of tenancies also.® In Massachusetts and Maine, tenancies from year to year have been held not to exist, and all oral tenancies are strictly at will.'' 1 Jackson dem. Clinch v. Miller, 7 Cow. 747; Jackson v. Monorief, 5 Wend. 26 ; Dubuque v. Miller, 11 Iowa, 583. 2 Mere occupation of the premises will not amount to a ratification of a void lease. To that end some new promise to perform the terms of the lease, or something equivalent thereto, is necessary. Mcintosh v. Lee, 57 Iowa, 356. » Bradley «. Covel, 4 Cow. 349; Ezelle v. Parker, 41 Miss. 520; Reed V. Landon, 5 Bush, (Ky.) 21. * Leavitt v. Leavitt, 47 N. H. 329, 340; Anderson v. Prindle, and cases supra ; and the mere fact of payment, or admission that some rent is due, has been held evidence of such agreement: Knight v. Bumell, 3 Bing. 361; Cox v. Bent, 5 id. 185; aud see ante, § 56. 6 Ante, § 58. ' As the right to a notice to quit of a defined length was the ground upon which, notwithstanding the language of the Statute of Frauds, tenancies from year to year were construed as terms, and as this right is secured to general tenancies at wUl, by statute or the decisions of courts, no valid reason would seem to exist why these last should not be placed on the same footing as the former. ' EUis ». Paige, 1 Pick. 43, but see 2 id. 71, n. ; Davis v. Thompson, 13 Me. 209; Goodenow v. Allen, 68 Me. 204. (See also Hammon v. Douglas, 50 Mo. 434, 436.) And although the statutes of both States have required a notice to quit of fixed length, which is insisted on even SEC. III.] AT WILL. 71 § 62. How determined. — A strict tenancy at will may be determined by either party, at any time, subject to such statu- tory provisions as we shall presently notice ; but a general tenancy at will can only be terminated by a notice to quit proportioned to the usual periods of holding.^ Thus if the rent is payable quarterly, and the lessor determines his will after the commencement of a new quarter, he will lose the rent that would otherwise accrue for that quarter, and the lessee will still be entitled to emblements. ^ So if the lessee determines his will before the end of a quarter, he must pay the rent of the quarter in which the tenancy is determined. ^ But a strict tenancy at will may also be determined by impli- cation of law ; and such an implication will arise on the death of either of the parties * from acts of ownership over the prop- erty exercised by the landlord, such as entering and cutting timber or carrying away stone, making partition among liens, taking a distress for rent,^ or alienating the reversion.® So where the lease is by agreement strictly at will : Batchelder v. Batchelder, 2 Allen, 105; yet such tenancies are liable to defeat by act of law: How- ard V. Merriam, 5 Cush. 563; Withers v. Larrabee, 48 Me. 570. This construction practically defeats the statute, as a colorable alienation, even by a lease, determines the will. Curtis v. Galvin, 1 Allen, 215; Hilbourn V. Fogg, 99 Mass. 11; Dunshee v. Grundy, 15 Gray, 314. In Maine it is considered doubtful whether a tenancy at will, under a verbal lease, may be a conditional estate, to be determined after a time fixed or upon the happening of a certain event, so that the tenancy will come to an end without notice at the expiration of the time or the happening of the event; the statute providing that such tenancies may be determined by thirty days' notice and not otherwise except by mutual assent. Goodenow V. Allen, supra. 1 Prickett v. Ritter, 16 111. 96 ; Davis v. Thompson, 13 Me. 209. 2 Leighton v. Theed, 1 Ld. Ray. 707. 8 Bowe's Case, Aleyn, 4; Walker v. Furbish, 11 Cush. 366; Withers V. Larrabee, 48 Me. 570; Whitney v. Grordon, 1 Cush. 266. As to length of notice, see post, § 478. * Robie V. Smith, 21 Me. 114. 6 Rising V. Stannard, 17 Mass. 284; Doe v. Turner, 7 M. & W. 226; 8. c. 9 id. 643; Reed v. Reed, 48 Me. 388; Adams v. McKesson, 53 Pa. St. 81; Turner v. Bennett, 9 M. & W. 643. » Bunton v. Richardson, 10 Allen, 260; Parmelee v. Oswego & Sy. R. R., 6 N. Y. 74; Hayden v. Ahearn, 9 Gray, 438; Ball v. CuUimore, 5 Tyrw. 753; Ellis v. Paige, 1 Pick. 43; KeUy v. Waite, 12 Mete. 300; Pratt V. Farrar, 10 Allen, 519; Esty v. Baker, 50 Me. 325. 72 DITFEEENT SPECIES OF TENANCY. [CHAP. IL if the tenant repudiates the tenancy ^ commits an act of volun- tary waste, ^ sells or transfers his interest to another, deserts the premises, or in any other way discontinues his lawful possession, he puts an end to the tenancy. For, indepen- dently of his temporary right of possession,^ a tenant of this description has no certain, indefeasible estate in the prem- ises ; his relation to the landlord is entirely of a personal character; and he has consequently no interest which he can transfer to another, or over which he can exercise any control.* § 63. Notice to quit generally necessary to determine. — At common law, neither a tenant at will nor by sufferance was entitled to notice to quit before he could be ejected, although a demand of possession was always required. Yet the words, " Unless you pay what you owe me, I shall take immediate measures to recover possession of the property," addressed to the tenant by the party entitled to the fee, were held to be a sufl&cient determination of his will, and equivalent to a demand of possession, so as to maintain ejectment.* And a tenant at will was even held to be a trespasser, by any un- reasonable delay to remove, after the estate had been thus determined.® But the statutes of most of the United States now require formal notice to be given in either case before a tenant can be proceeded against.^ We have seen that a 1 Chamberlain v. Donohue, 45 Vt. 50; Rich v, Bolton, 46 id. 84. And see post, § 472. 2 Daniels v. Pond, 21 Pick. 367; Phillips v. Covert, 7 Johns. 1. 8 Reckhow v. Schanck, 43 N. Y. 448 ; King b. Lawson, 98 Mass. 309 ; Clark V. Wheelook, 99 id. 14. " Phillips V. Covert, 7 Johns. 1; Doak v. Donelson, 2 Yerg. 249; Warner v. Paige, 4 Vt. 291; Cooper u. Adams, 6 Cush. 87; Chandler u. Thurston, 10 Pick. 209 ; Daniels v. Pond, supra. 6 Doe V. Price, 9 Bing. 356; Ellis v. Paige, 1 Pick. 47. ° Ellis V. Paige, supra ; Rising v. Stannard, 17 Mass. 282 ; Livingston ti. Tanner, 14 N. Y. 64; Welch v. Winterburn, 25 Hun, 437. ^ Under such a statute in Michigan, Comp. L. § 4304, it was held, that a tenant holding over, not being a tenant at will, unless holding by ex- press or implied consent, was not entitled to the notice to quit provided for in the case of tenancies by sufferance or a,t will. Cooley, J. said: "The statute evidently intends a case of a holding where the occupant SEC. IV.J AT STJFFEKANCE. 73 vendee in possession before he has completed the purchase stands upon the footing of a tenant at will, and is entitled to a demand of possession before ejectment can be brought against him, although not to a formal notice to quit.^ So a grantor who continues in possession, after the conveyance is executed, is a tenant at will to the grantee, and after a re- fusal to deliver possession may be treated as a disseisor and removed in a similar manner .^ But where, upon the sale of a term of years it was agreed that, if the purchaser did not pay the residue of the purchase-money on a certain day, he should forfeit the instalment already paid, and should not be entitled to an assignment of the lease, it was held to operate as a clause for re-entry, on a breach of covenant in the lease ; and that the vendor might maintain an action of ejectment, without either a demand of possession or notice to quit.^ SECTION IV. A TENANCY AT SUFFERANCE. § 64. Defined. — A tenancy at sufferance arises when a man comes into possession lawfully, but holds over wrong- fully, after the determination of his interest; differing in this respect from a tenant at will, where the holding is by the landlord's permission.* He has only a naked possession, stands in no privity to the landlord, cannot maintain an ac- tion of trespass against him ; and, independently of the stat- has some equities which would render it unjust that he should be required to surrender immediate possession; but he cannot acquire such equities by a mere wrongful holding over which is neither assented to nor acqui- esced in." Benfrey v. Congdon, 40 Mich. 283. 1 Right V. Beard, 13 East, 210. See ante, § 25, and note; post, §§ 470-472. 2 Currier v. Earle, 13 Me. 216. ' Doe V. Sayer, 3 Camp. 8; Jones v. Chamberlaine, 5 M. & W. 14. * 4 Kent, Com. 113; Edwards v. Hale, 9 Allen, 462; Abeel v. Hubbell, 52 Mich. 37; Smith v. Singleton, 71 Ga. 68. While such is the common law, considerable difficulties have arisen from statutes providing for notice of one or more months to tenants at sufferance. Thus in N. Y. 2 R. S. 513; N. H., R. S. ch. 209, § 1; Ky., G. S. ch. 66, art. 6, § 1; 74 DIFFERENT SPECIES OF TENANCY. [CHAP. II. ute, is not entitled to notice to quit.^ Nor is he liable to pay rent, for he holds by the mere neglect of the landlord to take possession, who may enter and put an end to the tenancy whenever he thinks proper.^ But before entry the landlord cannot maintain trespass against such a tenant, as he may against a stranger ; for, being once in by lawful title, the law supposes the continuance of a lawful possession, unless the owner, by some public act, like entry or demand, declares such a continuance to be wrongful.^ If, however, the occu- pant has come into the estate by mere act of law, and not by an act of the party, he is, after the estate has ended, not even a tenant at sufferance, but is to be considered an intruder, abator, or trespasser.* Mich., Comp. L. § 4304. The tenant cannot claim the benefit of the notice when he has asserted a title that directly, or by implication, nega- tives the landlord's right to terminate the tenancy. Kunzie v. Wixcom, 39 Mich. 384, and see Benfrey v. Congdon, 40 id. 283, as cited § 63, ante. In New Yoi'k, the courts, to avoid the absurdity of notifying a tenant who clearly knew when his term ended, and thereby adding one or more months to it, hold that he is not at sufferance until he has held long enough to imply the landlord's assent. Rowan v. Lytle, 11 Wend. 617; Smith V. Littlefield, 51 N. Y. 539 ; post, § 718, n. 2. But this is open to the objection that such assent rather makes a tenant from year to year, ante, § 55. By the Kentucky statute a tenant is at sufferance for ninety days after his term, if this be for a year or more. Mendell v. Hall, 13 Bush, Ky. 232. 1 Livingston v. Tanner, supra ; Moore v. Morrow, 28 Cal. 551 ; Hollis I). Pool, 3 Met. 350; Hauxhurst v. Lobree, 38 Cal. 563. 2 Smith V. Houston, 16 Ala. Ill; De Young v. Buchanan, 10 Gill & J. 149; Dixon v. Haley, 16 111. 145; Hurd v. Miller, 2 Hilt. 540; Delano v. Montague, 4 Cash. 42; Flood v. Flood, 1 Allen, 217; Emmons V. Scudder, 115 Mass. 367. But he is liable in use and occupation. Harding v. Crethorn, 1 Esp. 57; Bayley v. Bradley, 5 C. B. 396; Christy V. Tancred, 7 M. & W. 127; Ibbs v. Richardson, 9 Ad. & E. 849; Wright V. Roberts, 22 Wise. 161. By Mass. Pub. Sts. C. 121, § 5, he is made liable for rent; but this does not apply to one who occupied in right of his wife and remains in after her estate ended. Merrill v. BuHock, 105 Mass. 481. See Porter v. Hubbard, 134 Mass. 233. 5 Co. Lit. 270, 576; Jackson v. Parkhurst, 5 Johns. 128; Jackson v. McLeod, 12 id. 182. ' 2 Bl. Com. 150; Co. Lit. 57, b; 2 Inst. 134. Thus a woman who remains in her former husband's house after a divorce from him. Brown V. Smith, 83 111. 291. But a wife who occupied with her husband prem- SEC. IV.] AT SUFFERANCE. 75 § 65. Landlord's option. — Tenant may become tenant at will. — If a tenant for years surrenders his lease, and then holds over, he will become either a tenant by sufferance or a dis- seisor, at the option of the landlord.^ So an under-tenant, who is in possession of the estate at the termination of the original lease, and is permitted by the reversioner to hold over, is quasi a tenant at sufferance ; and the mere fact of occupation, coupled even with the payment of rent for the period of his occupation, does not raise the presumption of a demise for years, unless there is some evidence of an agree- ment to demise the term.^ A tenant at will, we have seen, acquires possession by the consent of the owner ; and if such consent can be inferred from any act of the landlord, a tenant at sufferance will become a tenant at will, or from year to year, according to circumstances.^ As in the case of a tenant for years holding over, if the lessor receives rent, or the lessee is permitted to continue on the land for a year, the tenancy by sufferance will be turned into a tenancy from year to year.* But where a tenant holds over after the determination of an estate for years; or a person selling land agrees to deliver possession on a particular day, and afterwards refuses to do so, and continues in possession, he is, in either case, to be considered a mere tenant at sufferance.^ ises hired by him, does not become at sufferance by remaining after his term ends, but his tenancy at sufferance still continues. Enowles v. Hull, 99 Mass. 562. ^ Pennington v. Morse, Dy. 61, b. 2 Simkin v. Ashurst, 1 C. M. & K. 261. 8 Rowan v. Lytle, 11 Wend. 619. * Doe V. Stennett, 2 Esp. 717; and see ante, §§ 55, 56. s Wilde V. Cantillon, 1 Johns. Cas. 123; Hyatt v. Wood, 4 Johns. 150; Hollis V. Pool, 3 Met. 350; Hildreth «. Conant, 10 id. 298; Rising v. Stannard, supra. After a sale of mortgaged premises by a mortgagee or his assigns pursuant to a power of sale contained in the mortgage, the mortgagor, if he thereafter remains in possession, is a tenant at suffer- ance. Eingsley v. Ames, 2 Met. 29; and see Howard v. Merriam, 5 Cush. 576; Doe v. Maisey, 8. B. & C. 767; Doe v. Giles, 5 Ring. 421. So a cestui que trust of the use and improvement of an estate, holding after his interest has ceased, becomes a tenant at sufferance. Godfrey v. Walker, 42 Ga. 562. And see Brown v. Smith, supra, where the differ- ent classes of tenants at sufferance are enumerated. 76 DIFPEKENT SPECIES OF TENANCY. [CHAP. n. SECTION V. DEMISE OP LODGINGS. § 66. status of the Occupant. — The rapidly growing fre- quency of the occupation of "flats" or "suites" — subdivisions of a house or other entire structure — has given rise to many questions and numerous cases, in determining whether the occu- pant is technically a tenant or not ; that is, whether he has an interest in the realty, or only a personal contract. While there can be a tenancy of real estate, properly, though in a single room,^ or in furnished rooms ; ^ yet this can only be created by clear terms of demise.^ Where these flats are separate tenements, though under one roof, yet if the owner does not reside as such on the premises, or retain control of the whole, a letting will create a tenancy, and interest in real estate, though there is an outer door or gate in charge of a porter, as the tenants have an equal control thereof, or easement therein;* and may maintain trespass qu. cl. fregit for any 1 Coke, 3 Inst. 65; Fenn v. Grafton, 2 B. N. C. 617 ; Izon v. Gorton, 5 id. 1; Stockwell v. Hunter, 11 Met. 448; and see cases post, § 520, n. 2 Newman v. Anderton, 5 B. & P. 224; Smith v. Marrable, 11 M. & W. 5; Wilson v. Finch Hatton, 2 L. K. Exch. Div. 336; Mechelen v. Wal- lace, 7 Ad. & E. 49. And the landlord's agreement to supply furniture as part of the demise is within the Statute of Frauds, and must be in ■writing, lb. " Cases supra ; Cook v. Humber, 11 C. B. n. s. 44. Edge v. Strafford, 1 C. & J. 391 ; and Inman v. Stamp, 1 Stark, 12, are put on this ground in Wright v. Stavert, 2 E. & E. 721, 725. * Evans v. Finch, Cro. Car. 473, where chambers in the Inns of Court were held a tenement; Wright v. Stockport, 5 M. & G. 33; Res v. Uns- worth, 5 A. & E. 261 ; Judson v. Luckett, 2 C. B. 197; Toms v. Luckett, 5 id. 23; Downing v. Luckett, id. 40; Score v. Huggett, 7 M. & G. 95; Swain v. Mizner, 8 Gray, 182; Henrette v. Booth, 15 C. B. n. s. 100; Young V. Boston, 104 Mass. 95. " Flats are as much separate dwellings as ordinary adjoining houses are, and it makes no difference whether the structure is divided vertically or horizontally." Stamper v. Sunderland, Ij. R. 3 C. P. 388. " The possession of the street door may be taken as a criterion. If exclusive control is retained by the landlord, so that the tenants could only come in and go out with his assent and permission, SEC. v.] OF LODGINGS. 77 unlicensed entry by the landlord .^ A lodger, on the contrary, — though the term is not a technical one, — means one who occupies a portion of a tenement which is under the control or in the occupancy of another. He cannot have trespass qu. cl. freffit, if entered upon, and is not liable for rent or in use and occupation, but can only sue and be sued for a breach of his agreement.^ His agreement is not within the Statute of Frauds, and his rights do not therefore differ from those of a boarder in a hotel or boarding-house, who has no interest in the realty even though he has a contract for specific rooms.^ The respective rights of the owner and of the lodger are therefore determined, not by the law of landlord and tenant, but by the principles of personal contract.* § 67. Lodgers quasi Tenants. — Lodgers are entitled, there- fore, to the privileges of tenants, though on a different ground ; and if a man takes lodgings on the first or second floor of a house, he has a right to the use of the door-bell, the knocker, the skylight of the staircase, and the water-closet, unless it is otherwise stipulated at the time of taking such lodgings ; and, then it may be said that they are mere inmates and lodgers, and not lessees." See Cockburn, C. J. Queen v. St. Geo. Union, L. K. 7 Q. B. 90, 97, 98. In Porter v. Merrill, 124 Mass. 534, it was held that a lease of specified rooms in a house containing a restaurant was valid, although the lessor undertook to serve a private table and to furnish certain other accommodations to the lessee, and imposed certain restrictions on the manner of the use and occupation of the rooms. 1 Queen v. St. Geo. Union, supra, p. 97. " Lee V. Gansel, Cowp. 1; Fludier v. Lombe, Co. T. Hardw. 307. " Neither the house, nor even any part of it, can properly be said to be in the tenure and occupation of the lodger." Per Hardwicke, Ld. Ch. So Doe V. Laming, Ky. & M. 36 ; Dobson v. Jones, 5 M. & G. 112; Davis V. Waddington, 7 id. 85; Wansey v. Perkins, id. 151; Monks v. Dykes, 4 M. & W. 567; Smith v. Lancaster, L..R. 5 C. P. 246; Brown v. McGo- wan, id. 239; Hartley v. Banks, 5 C. B. n. b. 40; Roads v. Trumpington, L. K. 6 Q. B. 56, 62. ' White V. Maynard, 111 Mass. 250; Wright u- Stavert, supra; Wil- son V. Martin, 1 Denio, 602; Polack v. Shafer, 46 Cal. 270; Brown v. McGowan, supra ; Ambler v. Skinner, 7 Rob. (N. Y.) 561. * Kirkman v. Jervis, 7 D. P. C. 678. Here the landlord's misconduct having caused the lodger to leave, the latter was held to pay compensation during the time he was actually occupying. 78 DIFFERENT SPECIES OP TENANCY. [CHAP. n. if the landlord deprives him of the use of either, an action lies.^ He is also subject to the same liabilities as other tenants ; and is not justified in quitting his apartments with- out giving proper notice, even from a fear, however reason- able, that his goods may be seized for the landlord's rent.^ But if his goods should be distrained together with those of the lessee, and sold first, the landlord having been notified of his ownership of them, he may sue for damages for an excessive distress, if the tenant's goods turn out to be suffi- cient to satisfy the rent due and the charges.^ With respect, however, to legal process, a marked distinction exists between a lodger and a tenant, properly so called. While for the purpose of his personal protection the premises in the former's occupancy may be regarded as a house in case of burglary, yet in the execution of civil process, they are subject to be entered with force by the officer ; * whereas the separate apart- ments or flat in the occupancy of the tenant in a tenement house or hotel cannot, even though the outer door is peace- ably entered.^ 1 Underwood v. Burrows, 7 C. & P. 26. 2 Kickett V. Tullick, 6 C. & P. 66; Griffith v. Hodges, 1 id. 419. As to the rule of damages against a lodger removing and refusing to pay rent, see Cummins v. Hanson, 10 Daly, 493. 8 Wilkinson v. Ibbett, 2 F. & F. 300; Fisher v. Alger, 2 C. & P. 374. * Tracy v. Talbot, 6 Mod. 214; 1 Hawk. P. C. 163, § 15; Lee v. Gan- sel, supra. ^ Swain v. Mizner, 8 Gray, 182. SEC. I.] THE COMMENCEMEKT OF A LEASE. 79 CHAPTER III. THE DURATION OP A TENANCY. SECTION I. THE COMMENCEMENT OF A LEASE. § 68. Fixed by Delivery of Deed, and Entry. — At COmmon law, livery of seisin or an actual manual tradition of the land was necessary to complete every grant of an estate of inheri- tance, or for life ; although it was not required for the pur- poses of a lease for years, or other mere chattel interest. But this distinction has been abolished in most of the United States, and a simple delivery of the deed substituted in place of it ; from which time all grants, whether for life or for years, now take effect. In leases for years, however, an actual en- try is still necessary to vest possession in the lessee ; for the bare lease gives him, as we have seen, only a right to enter, or an mteresse termini. When he enters in pursuance of that right, he is then, and not before' in possession of the term, and becomes a complete tenant for years. And, in reference to the obligations of the parties, and regarding the lease as a contract, if the time from which the term is to commence does not otherwise appear, it will be understood as commenc- ing from the time the papers are dated; and, if not dated, then from the time they were delivered.^ If there are no writings, the commencement of the tenancy will be governed * Thus where a lease of a city lot was made for a term of years, and afterwards, for the purpose of increasing the depth of the lot, another lease was made of land adjoining the first lot, in the rear, the latter lease expiring at the same time as the former and containing like covenants; semble that these are separate leases. Livingston v. Sage, 95 N. Y. 289. 80 DTJEATION OP A TENANCY. [CHAP. III. bj any express day fixed by the parties, except that the in- terest of the tenant will only begin upon entry ; and if there has been no such day fixed, the tenancy will commence witli the tenant's entry, and not from any particular quarter-day.^ § 69. Of Payment of Rent, Hffect to fix. — Other Circum- stances. — A receipt for rent, up to a particular day, is primd facie evidence of the commencement of a tenancy at or pre- vious to that day. And, if a tenant enters in the middle of a quarter, and afterwards pays rent to the beginning of the suc- ceeding quarter, and from that time pays half-yearly, his tenancy will be deemed to have commenced from the quarter- day to which he paid up.^ But where a tenant, under a written lease, continues to hold over after the expiration of his ten- ancy, and assigns his interest to another person, the new tenancy, if recognized by the landlord, will be held to have commenced at the time the original lease commenced, al- though the assignee came in on a different day.^ Notice to 1 Church V. Gilman, 15 Wend. 656; Co. Lit. 46, a; Jackson v. Bard, 4 Johns. 230; Kemp v. Derrett, 3 Camp. 510. In Inman u. Stamp, 1 Stark. 12; Edge v. Strafford, 1 C. & J. 391; it was held that parol leases, though for less than three years, created no rights or obligations whatever as leases before entry, because obnoxious to § 4 of the Statute of Frauds as agreements exceeding a year. See also Tully v. Dunn, 42 Ala. 262; Horsey v. Graham, 12 W. R. 141. But in Huffman v. Starkes, 31 Ind. 474; Birckhead v. Cummings, 33 N. J. 44, this section was held not to apply to leases within the exception of three years, and that these were accordingly complete as to all but mere possessory rights as soon as made. 2 Doe V. Johnson, 6 Esp. 10. And the presumption in England is, that the holding is intended to be in accordance with the regular quarter- days stated in the lease, rather than with the date of the lease: Sandhill V. Franklin, L. R. 10 C. B. 342 ; but if no regular quarter-days are named, the date of the lease controls as to when rent is payable, and notice to quit must be given: Doe v. Matthews, 11 C. B. 675. It has been held in New York that although a tenancy begins in the middle of a quarter, yet if by agreement the rent is payable on the regular quarter days, or payments are in fact so made, then the year will, according to circumstances, date either from the previous or succeeding quarter-day. Tyng V. Theological Seminary, 46 N. Y. S. C. 250. ' Per Ld. Ellenborough, in Doe v. Samuel, 5 Esp. 174. So where a lessee whose term began and ended at midsummer sublet for a year from SEC. I.] ITS COMMENCEMENT. 81 quit on a particular day. is no evidence of a holding from that day.i And, when the premises contained in a demise con- sisted of a dwelling-house and other buildings, which were to be used for the purpose of carrying on a manufacture, a few acres of meadow and pasture lands, together with all water- courses, &c., which the tenant held under a written agreement for a lease, to commence, as to the meadow, from the 25th December, then last past, as to the pasture ground from the 25th March then next, and as to the houses, mills, and all the rest of the premises, from the 1st of May, the court held that the substantial time of entry was the 1st of May, because the principal subject of the demise was the house and buildings for the purpose of the manufacture, to which everything else in the demise was merely auxiliary .^ § 70. Tenancy for Vears to bave fixed Beginning. — An es- tate for life needs no expression of the time at which it is to commence, because it cannot, at common law, commence in futuro, nor can its duration be ascertained ; but it is of the very essence of a term of years to be fixed and determined ; and, therefore, unless some certain beginning or event is re- ferred to by which the period of its commencement may be ascertained, it will be void for uncertainty .^ But a lease, to Michaelmas, and the subtenant acknowledged the new lessee whose term began at midsummer, it was held that the sublessee's holding under such new lessee was still from Michaelmas to Michaelmas. Kelly v. Patterson, L. R. 9 C. B. 681. 1 Doe V. Forster, 13 East, 405. 2 Doe V. Watkins, 7 East, 551; Steele v. Mart, 4 B. & C. 272; Doe V. Benson, 4 B. & A. 588. A lease was dated Jan. 25, 1853, to run from the first day of April next, for and during and until the full end and term of five years thence next ensuing, yielding and paying therefor unto the lessor the yearly rent of four thousand dollars, in equal quarterly payments, — to wit, on the first days of April, July, October, and January, in each and every year during the said term ; and it was held that the term commenced on the first day of April, 1853, and included that day. Deyo V. Bleakley, 24 Barb. 9. ' 1 Brest. Est. 201 ; Bac. Abr. Leases (L.), 3. An agreement to con- vey seventy acres of land without describing them or designating the place, is void for uncertainty; and a clause giving some clew to the iden- tity of a small part only, does not help it. Rollin v. Pickett, 2 Hill, 552. VOL. I. — 6 82 DURATION OF A TENANCY. [CHAP. HI. commence or terminate on a contingency which must happen, is valid ; for then its duration is made certain.^ Thus, a lease from the day of the lessor's death until the 1st of May, 1629, was held to be good for so much of the term as remained after the lessor's death.^ And there is no objection that a term of years is to commence as of a day which is past ; for in that case, the lease will take effect, in point of computar tion, from that day, but in point of interest, from the delivery of the instrument.^ § 71. Impossible Dates. — As to an impossible or uncertain date, there appears to be this nice distinction made in the books, that if a lease be made to begin from an impossible date, — as from the 30th day of February, — it takes effect from delivery ; but where the limitation is uncertain, — as a lease made the 10th of October, to hold from the 20th day of November, without saying what November is meant, — the lease is void ; because the limitation is part of the agreement, and the court cannot determine it, not knowing the terms of the contract.* Yet, where a lease was dated 25th March, 1783, to hold from the 25th March now last past, and it was proved that the deed was not executed until some time after date, and rent was reserved from March 25th, 1783, it was held that the term commenced on the 25th March, 1783, and not on the 25th March, 1782 ; ^ for, though there may appear to be no certainty of years in a lease, yet, if, by reference to a certainty, it may be made certain, it is sufficient.® So Patterson v. Hubbard, 30 111. 201; jDingman v. Kelly, 7 Ind. 717; Reed v- Lewis, 74 id. 433. 1 Goodright V. Richardson, 3 T. R. 462. The day fixed in the lease, on which the tenant is to have possession of the premises, is so much of the essence of the contract, that, if the lessor refuse to give the lessee possession on that day, Mie latter may abandon the -contract. Spencer V. Burton, 5 Blackf, 57. 2 Child V. Baylje, Cro. Jac. 459, ' Moore v. Musgrave, Hob. 18; Enys v. Donnithorne, 2 Burr. 1192. * Bao. Abr. Leases (L.), 1. A lease from the day of 1866, for eighteen months, will be held to continue after July 1st, 1867. Huff- man V. McDaniel, 1 Oregon, 259. « Steele v. Mart, 4 B. & C 273. « Shep. Tpuch, 272, SEC. I.] ITS COMMENCEMENT. 83 § 72. Future Possession. — luteresse Termini. — When an es- tate for years is made to commence at a day to come, or on the happening of a particular event, it is, in either case, called, as we have said, an interesse termini, or a right to the posses- sion of a term at a future time. Such a demise vests in the lessee a complete right to the possession of the premises, on the day fixed by the agreement for the commencement of the term ; and, being a mere chattel interest, was never required to be created by feoffment and livery of seisin.^ But an estate for life, whether it lie in livery or in grant, cannot begin at a day to come, because a freehold may not be placed in abey- ance.2 And, since no estate of freehold can commence in fw- turo, a lease to commence after the death of a lessor, or of a lessee for life, is nob good, unless there be some subsisting estate, which will fill the intermediate space.^ If a term of years is granted in possession, and a second lease is afterwards made, to commence at the expiration of the existing lease, no reversion will pass by the second deed, nor will the second lessee be entitled to any interest under it, except a mere inter- esse termini, and the lessor will consequently be entitled to the rent reserved by the first lease, and may distrain for it in the same manner as any other reversioner.* But where a lease under seal is concurrent with the first lease, it conveys the reversion, and not a simple interesse termini; and though no entry is made under it, the estate vests, and the right to dis- train for rent follows.^ * Winter v. Loveday, 1 Comyn, 39. « 1 Prest. Est. 117 ; 2 Bl. Com. 314; Singleton v. Bremar, 4 McCord, 12. » 1 Prest. Est. 231; Weale v. Lower, PoUexf. 55. * Smith o. Day, 2 M. & W. 684. So where lessee held over, the origi- nal lessor, and not one to whom he had granted a lease and who was entitled to an interesse termini, recovered the double rent given by statute. Blatchford v. Cole, 5 C. B. n. s. 514; so surrender to produce merger must be made to the lessor, not to the owner of an interesse termini. Ed- wards V. Wiokwar, 35 L. J. kt. 8. 309. * Colboume o. Mixstone, 1 Leon. 129. Af5rmed, Doe v. Rawlins, 5 B. & C. 121; Harmer v. Bean, 3 Carr. & K. 307. 84 DTJEATION OF A TENANCY. [CHAP. UI. SECTION II, THE TERMINATION OP A LEASE. § 73. Terms not Umited by Law. — Terms were originally of short duration ; and Lord Coke states that, by the ancient law of England, they could not exceed an ordinary generation of forty years, for the reason that, if leases could be made for a longer period, men might be disinherited. This doctrine of the common law, however, had become antiquated even in his day, and was soon after abolished altogether.^ There is now no limitation to the extent of a term of years, either in Eng- land or the United States.^ § 74. Perpetual and Conditional leases. — Leases may also be of perpetual duration ; and these are usually in the form of a grant of land in fee, reserving the payment of an annual rent, instead of a present consideration ; and of this class the New York manor-leases, and the fee-farm leases in Pennsylvania, are specimens.^ Or they may be leases to continue so long as the 1 Co. Lit. 45, b; 46, a; Theobalds v. DufEoy, 9 Mod. 101. ^ In New York, however, by the Constitutioa of 1846, Art. 1, § 14, agricultural leases are good only for twelve years. These are, however, only such as are held on the reservation of a periodical rent or service to be paid as compensation for the use of the estate granted. It is stiU competent to make a grant for such a purpose, for a life or lives, upon a good consideration to be paid for the estate, which may be made paya- ble all at once, or by instalments, or in services, so that it be not paid by way of rent; that is, of rent according to the common-law definition of that term. Parsell v. Stryker, 41 N. Y. 480. And there seems to be no objection to a longer lease of such lands where their use is restricted in express terms to other than agricultural purposes. Odell v. Durant, 62 N. Y. 524. An agricultural lease for more than twelve years is not valid for twelve years but absolutely void. And where two leases of the same premises were executed at the same time, and upon the same terms and consideration, one for eight, and another to take effect upon the expi- ration of the first, for twelve years, it was held. Church, C. J., dissenting, that the two leases were to be construed together as if contained in the same instrument, and were void. Clark v. Barnes, 76 N. Y. 301. 8 Ante, § 50; post, §§ 261, 284, 285, 370, 440, &c. SEC. II.] ITS TERMINATION. 85 lessee shall continue to pay the rent, and perform the cove- nants contained in them ; thus, a demise to A. B., his heirs and assigns, for such a term of time as he pays rent, — he, on his part, covenanting for himself and his heirs to pay rent and perform covenants, — is a perpetual lease; and can only be terminated by the mutual agreement of the parties, or until the lessor shall elect, on default of the lessee to pay rent and perform the covenants, to consider it forfeited.^ § 75. Term to be fixed. — How ascertained. — The continuance of a term of years constitutes an essential part of the contract, and must be ascertained with certainty at its commencement ; otherwise, the lease will create but a tenancy at will or from year to year, if it be not wholly void. As if it be to hold un- til a child, then unborn, shall be of full age ; or so long as a certain individual shall continue parson of Dale ; this will, in either case, constitute but a tenancy at will, because of the uncertainty that the child will ever arrive at that age, or that the individual in question will continue parson of Dale.^ The duration of a lease may, however, be defined, either by an ex- press enumeration of years, or by reference to some collateral or extrinsic circumstance.^ It may also be reduced to a cer- 1 Folts V. Huntley, 7 Wend. 210; Van Rensselaer v. Hays, 19 N. Y. 68; Wallace v. Harmstad, 44 Pa. St. 492; Phila. Lib. Co. v. Beaumont, 39 id. 43. So a lease "as long as water runs, or grass grows," is good as a perpetual lease. White v. Fuller, 38 Vt. 193. In Arms o. Burt, 1 Vt. 306, it is said to convey a fee. So a lease during the time the property shall be used for a certain purpose, it being granted for a present money consideration, is held to be a lease in perpetuity at the will of the lessee and to convey a base or terminable fee. Delhi School Dist. v. Everett, 52 Mich. 314. Per Cooley, J. But where the words " or as long as we selectmen have a right to lease " are added, the lease is good only for five years, that being the extent of their power to lease. Lemington V. Stevens, 48 id. 38. 2 Bishop of Bath's Case, 6 Co. 35. In Murray v. Cherrington, 99 Mass. 229, a lease with no other termination indicated than that the lessor was to have the right to reoccupy after two years, was held void as a lease, and to enui'e only as a tenancy at will. And see ante, § 60, n. 3. s Horner v. Leeds, 1 Dutch. 106. Where the years are expressly enumerated, the words " expiration of the term," in the lease refer to the expiration of the period of years, and liabilities to accrue at the expira- 86 DURATION OB" A TENANCY. [CHAP. ni. tainty by matter ex postfaeto. Thus, if it is intended to grant a term for years, which is to be dependent for its continuance upon the duration of a life, it must be granted for a stated term of years, if the life shall so long continue ; as for the term of ninety-nine years, if a certain person shall live so long ; for there the utmost limit of the term is marked out, subject to its sooner determination on a collateral event. And though formerly otherwise, on the ground that there could be no re- mainder of a term after a life-estate therein, it was afterwards settled that the unexpired residue of the term, taken in the sense of time, might be limited over on the decease of a life- tenant. But it may be granted to a man for life ; and a sub- sequent lease may be granted to another for sixty years, to commence after the decease of the first, or to commence im- mediately, and run in computation of time concurrently with the first term, subject to postponement, as to possession, until the decease of the first person.^ A grant, however, for the life of one not in existence, is void ; but if for the lives of A., B., and C, and there should be no such person as C, it is good for the lives of A. and B.^ § 76. Ascertained by eztrinsic Reference. — The duration of a lease may, as we have said, be defined with reference to a certainty ; as, for instance, to another lease already in exist- ence, as a lease to A. for so many years as B. has in the manor of Dale ; here if B. has ten years' interest in that manor, A. will take a term of the same extent. But when a tion of the term do not attach until the end of the term as limited, although the lessee's estate may be sooner determined. Finkelmeier v. Bates, 16 N. Y. S. C. 433; s. c. on appeal, 92 N. Y. 172; and see Crosby V. Moses, id. 634. 1 Shep. Touch. 274; Wright v. Cartwright, 1 Burr. 282; Kector of Chedington's Case, 1 Co. 155, a. " Doe V. Edwards, 1 M. & W. 553. So a lease by selectmen, whose power was limited to five years, " as long as water runs or wood grows, or as we have power to lease," is good for five years. Lemington v. Ste- vens, 48 Vt. 38. Particular care should be observed in the use of the particles and and or ; for a lease for ninety-nine years, if A. and B. so long live, is determinable by the death of either A. or B. ; but a lease, if A. or B. so long live, lasts till the death of the survivor of them. Lord Vaux's Case, Cro. El. 269; Elliott v. Turner, 2 C. B. 461. SEC. n.] riS CPERMINATION. 87 reference of this kind is made, it must be to a thing which has express certainty at the time the lease is made, and not to a mere possibility or casual certainty. As in the case aboTC referred to, where a lease is made for so many years as a man shall continue parson of Dale, this cannot be made cer- tain, for nothing can be less certain than the time of his death, or the period of his ceasing to be parson.^ Yet a lease which does not fix the exact period at which the tenancy is to end, may be sufficient for the particular time in it which is certain.^ So a term may be demised subject to a contingent sooner de- termination of it by a collateral event, as by the exercise of the right of eminent domain ; ^ or by the lessor's selling the propei-ty ; * or by any similar condition.^ § 77. Ascertained by Matter ex post facto. — A term origi- nally uncertain may also be rendered certain by matter ex post facto. Thus it may be granted for so many years as a particular person shall name ; and the lease, though uncertain at the beginning, will be valid ah initio, after the naming of the years.^ A demise, " not for one year only, but from year to year," constitutes a tenancy for two years, at least, and is not determinable by a notice to quit at the expiration of the 1 Bishop of Bath's Case, 6 Co. 34, b; Co. Lit. 45, b. ■■' Gwynne v. Mainstone, 3 C. & P. 302. A lease for seven, fourteen, or twenty-one years, as the lessee shall think proper, is a good lease for seven years, whatever it may be for the fourteen or twenty-one years. Fergu- son B. Cornish, 2 Burr. 1032. It is for the longest period, determinable at either of the earlier dates. Goodright v. Richardson, 3 T. R. 463, n. A lease for twenty-one years, determinable at the end of seven or fourteen, if the parties so think fit, is not determinable without the joint assent of both parties. Fowell v. Tranter, 3 H. & C. 458. 8 Munigle v. Boston, 3 Allen, 230. * Knowles v. Hull, 97 Mass. 206. 5 Shaw V. HofEman, 25 Mich. 162; Flagg v. Drew, 99 Mass. 18; Cook V. Bisbee, 18 Pick. 527. So may a tenancy at will. Ashley v. Warner, 11 Gray, 43; Thurber v. Dwyer, 10 R. I. 355. And a lease given during the absence of the owner from the country, by an agent having authority to take charge of the land while he was gone, and make it pay the best way he could, was held to be terminable by the owner on his return. Antoin v. Belknap, 102 Mass. 193. « Goodright v. Richardson, 3 T. R. 463, 88 DURATION OP A TENANCY. [CHAP. III. first year.i Or if a man makes a lease for years, without say- ing how many, it is good for two years ; for more than this there is no certainty, and for less there can be no sense in the words.2 But a lease to hold from the first day of April, from year to year, so long as the parties agree, is not necessarily a lease for more than one year ; ^ but if it be from year to year, so long as the tenant pays rent or the landlord has power to let, it is void.* In the city of New York, if no time is agreed upon as to its duration, it is a lease to continue until the first day of May next after possession under the agreement shall commence ; and the rent under it is payable at the usual quarter-days for the payment of rent in that city, unless otherwise expressed in the agreement.^ If a lease is made for a month or months, calendar months are usually intended.^ But, by the English law, a month means a lunar month of twenty-eight days, or four weeks ; and a lease for twelve months has therefore been held to be for forty-eight weeks only.' J Denn v. Cartright, 4 East, 29. ^ Bao. Abr. Leases (La.), 3. 8 Fox V. Nathans, 32 Conn. 351. * Wood V. Beard, 2 L. E. Esch. Div. 30. Where the lease is until the landlord can sell the premises, it ends upon such sale, and notice to quit is unnecessary. Clark v. Rhodes, 79 Ind. 342. So where the letting is until the tenant can find another place. Hoffmann v. McCoUum, 93 id. 326. ^ 1 R. S. 744, § 1. The statute does not apply to a case where a tenant enters without any agreement as to the terms of hiring, and remains for a series of years, paying rent monthly in advance, it being in such a case a monthly hiring. Wilson v. Taylor, 8 Daly, 253. 6 1 N. Y. R. S. 606, § 4; 1 Hill, Abr. 118, n; Avery v. Pixley, 4 Mass. 460; Hardin v. Major, 4 Bibb, 105; Gross v. Fowler, 21 Cal. 392; Strong V. Birchard, 5 Conu. 361; Brewer v. Harris, 5 Gratt. 298; Sheets v. Selden, 2 Wall. 177. ' 2 Bl. Com. 141 ; 6 T. R. 224; Stackhouse v. Halsey, 3 Johns. Ch. 74; Parsons v. Chamberlin, 4 Wend. 512; People v. Mayor, 10 id. 393; Simp- son V. Margitson, 11 Q. B. 23; Rogers v. Hull Dock Co., 11 L. T. n. 8. 42, 463 ; 10 Jur. n. s. 1245. A distinction has been held between twelve months and a twelvemonth ; and the latter has been held to mean a year. Catesby's Case, 6 Co. 61. Calendar months agree with those of the Gregorian calendar, or the twelve well-known months of the year; but lunar months, as stated in the text, consist of twenty-eight days only. The latter computation was used by the Greeks and Romans, and was probably introduced into the common law of England from the codes of those countries. SEC. ilJ its termination. 89 § 78. Terminal Days, Rule as to. — It was formerly held, by following strictly the words employed, that a lease " from the day of the date " excluded, while " from the date " included, the first day, in point of computation ; ^ or, as the rule is some- times stated when the computation is " from " a day, that day is to be excluded, but when " from " an act, the day of the act is included.^ The strict construction in the first of these rules was qualified in later cases, and the day was included whenever its exclusion would have produced a forfeiture or estoppel .; or have defeated the clear intention of the parties apparent from other portions of the instrument ; ^ or where some local custom controlled.* But if no such reasons existed 1 Clayton's Case, 5 Co. 1; Hatter v. Ash, 1 Ld. Ray. 84; Co. Lit. 46, b; the word datus signifying delivery; but datus, or date, now means day. Styles V. Wardle, 4 B. & C. 908; Johnson v. Stewart, 11 Gray, 181. AVhere no other time is fixed for the lessee's interest to begin, it will begin from the date of the lease. Keyes v. Dearborn, 12 N. H. 52. But a lease may commence from one date in point of interest, and another in point of computation. Enys v. Donnithorne, 2 Buit. 1190. So see Cru- soe V. Bugby, 3 Wils. 234. In this case the term only begins when the interest vests. Thus, where the lease was to cease if any accident occurred during the term, and the lease was to commence June, 1851, but was not actually executed until November, 1852, an accident which occurred in September, 1851, was held not within the term. Jervis v. Tomkinson, 1 H. & N. 195. 2 Blake v. Crowninshield, 9 N. H. 304; Ewing v. Bailey, 4 Scam. 420; Castle V. Burditt, 3 T. R. 623. So where a lease demised a term of years " from the first day of September now next ensuing," and reserved a rent payable "by equal quarter-yearly payments," the first payment "to be made on the first day of December now next ensuing," it was held that the rent, though payable December 1, was not legally due, and conse- quently not subject to garnishment, until after midnight of December 1. Ordway v. Remington, 12 R. I. 319. 8 Pugh V. Duke of Leeds, Cowp. 714; Lester v. Garland, 15 Ves. 248; Windsor v. China, 4 Greenl. 298; Sims v. Hampton, 1 S. & R. 411; Ben- net u. Nichols, 4 T. R. 121; Wilkinson v. Gaston, 9 Q. B. 137; Pellew V. Wonford, 9 B. & C. 134; Sands v. Lyon, 18 Conn. 30; People v. Rob- ertson, 39 Barb. 9. * Thus, in New York: Wilcox v. Wood, 9 Wend. 346; Connecticut: Fox V. Nathans, 32 Conn. 348; Pennsylvania: Marys v. Anderson, 24 Pa. St. 272; Duffy )). Ogden, 64 id. 240; McGowan i'. Lennest, 1 Brewst. 397; Massachusetts: Butler v. Fessenden, 12 Cush. 78, as explained in Bemis v. Leonard, 118 Mass. 502; and other States there referred to. 90 DUBATION OF A TENANCY. [CHAP. HI. the day was excluded.^ And as the rule is now generally laid down, one terminus will be excluded and the other included, in the computation of time, according to the circumstances and the apparent intention of the parties.^ § 79. Conflicting Authority as to. — The second of the rules above stated has not been so generally followed. It seems, however, to be law in several of the United States,^ while in others, in the United States courts, and probably in England also, after some conflict of decisions, it is rejected.* But gen- 1 Bigelow V. Willson, 1 Pick. 485; Wiggin v. Peters, 1 Met. 127; Atkins V. Sleeper, 7 Allen, 487; Rand v. Rand, 4 N. H. 267, 276; Bemis V. Leonard, sujora ; Sheets v. Selden, 2 Wall. 190; Isaacs v. Roy. I. Co., L. R. 5 Exch. 296: Styles v. Wardle, 4 B. & C. 908;. Pellew v. Wonford, 9 id. 134; Ackland v. Lutley, 9 Ad. & E. 879 ; Webb v. Fairmaner, 3 M. & W. 473; Gorst v. Lowndes, 11 Sim. 434. ^ Earwell k. Rogers, 4 Cush. 460; Cornell v. Moulton, 3 Denio, 12; Judd V. Fulton, 10 Barb. 117 ; Sheets v. Selden, supra ; Higgins v. Halli- gan, 46 111. 173; Duffy v. Ogden, supra. Thus "between" as a rule excludes. Atkins v. Boyls. I. Co., 5 Met. 439. But where rent was paya- ble on the first of each month, an assignment August 31st of all rents until October 1st was held to include the rent due on that day. Kendall V. Kingsley, 120 Mass. 94; Isaacs v. Roy. I. Co., supra. The distinction has sometimes been attempted that where an interest is to pass, the day of the date is included. 4 Kent, Com. 95, note a; Lysle v. Williams, 15 S. & R. 135; Donaldson v. Smith, 1 Ashm. 197; but this was denied in Farwell v. Rogers, 4 Cush. 460; is contra to every case of demise where the first day has been excluded, see cases supra; and is an injuiy to lessee, as it deprives him of one day. ^ Thus, New Hampshire: Blake v. Crowninshield, 9 N. H. 304; Indiana: Jacobs 0. Graham, 1 Blackf . 392 ; Illinois : Ewing v. Bailey, 4 Scam. 420 ; Pennsylvania: Thomas v. Afflick, 16 Pa. St. 14; Kentucky: Batman V. Megowan, 1 Met. Ky. 533; Oregon: Huffman v. Daniel, 1 Oreg. 250. * Connecticut: Sands v. Lyon, 18 Conn. 18; Weeks v. Hull, 19 id. 376; New York: People v. N. Y. C. R. R., 28 Barb. 284; Nevada: Hunter v. Sav. C. S. Min. Co., 4 Nev. 1.53; Massachusetts: Bemis v. Leonard, supra, where all the cases are elaborately reviewed, and the dictum in Atkins v. Sleeper, supra, overruled; United States: Sheets v. Selden, supra, overruling Arnold o. U. S., 9 Cranch, 104; Pearpoint v. Graham, 4 Wash. C. C. 232. In England the law seems established in accord with the text by Lester u. Garland, 15 Ves. 248; Webb v. Fair- maner, 3 M. & W. 473; Regina v. Middlesex, 7 D. & L. 107; and the SBC. n.] ITS TEEMIKATION. dl erally, where the words of computation distinctly refer to the end of the period in question, the day will be included or excluded according to the rules just laid down.^ § 80. Void Parol Lease may regulate Duration of Tenancy. — Although a lease by parol may be void, as exceeding the period allowed by the Statute of Frauds, or the tenancy may, according to circumstances, be construed at will, or from year to year, it will nevertheless be governed, in respect to its ter- mination as well as to its other incidents, by the terms of the demise,^ and will expire at the time limited by those terms without notice to quit.^ It may also be determined under a proviso for re-entry, to be implied from that or the original lease.* § 81. Optional Duration refers to Tenant's Option. — If the duration of a tenancy is left optional by the terms of the lease, without saying at whose option, — as, for instance, if a lease be made for seven, fourteen, or twenty-one years, — it means at the option of the tenant, who has the right of choosing whether he will put an end to the lease at the end of seven years, or continue it for fourteen or twenty-one years.^ And early cases of Kex v. Adderly, Doug. 463 ; Castle v. Burditt, 3 T. R. 623 ; and Glassington v. Rawlins, 3 East, 407, depended each on its special cir- cumstances, and established no general rule. 1 Small V. Edrick, 5 Wend. 137; Wiggin v. Peters, 1 Met. 127. ^ Evans v. Winona Land Co., 30 Minn. 515; Nash v. Berkmeier, 83 Ind. 536; Coan v. Mole, 39 Mich. 454; Hammond v. Dean, 8 Baxt. 193. 8 Berry v. Lindley, 3 M. & G. 514; Doe v. MofEatt, 15 Q. B. 257; Doe V. Stratton, 4 Bing. 446; Tress v. Savage, 4 Ellis & B. 36; Creech v. Crockett, 5 Cush. 133; Elliott o. Stone, 1 Gray, 574; Martin v. Smith, L. R. 9 Exch. 50. * Thomas v. Packer, 1 H. & N. 669 ; Hayne v. Gumming, 16 C. fi. N. s. 421. 6 Dann v. Spurrier, 3 B. & P. 399 ; Goodright v. Richardson, 3 T. R. 462 ; Doe v. Dixon, 9 East, 15 ; Goodright v. Mark, 4 Maule & S. 30 ; Fallon V. Robins, 16 Ir. Eq. 422 ; McMill v. SherifE, 3 Brewst. 537; Nindle v. State Bank, 13 Neb. 245 ; and where a demise was for six months, with a proviso that rent for the next six months should be in advance, this latter period was held to be at the tenant's option : Com- monwealth V. McNeile, 8 Phila. 438 ; but where determinable " if both 92 DTJKATION OP A TENANCY. [CHAP. III. in all cases of uncertainty, the tenant is most favored by law, because the landlord, having the power of providing expressly in his own favor, has neglected to do so ; and also upon the general principle, that every man's grant is to be taken most strongly against himself.^ § 82. Tenancy from Year to Year determinable by Notice. — It was formerly held that the effect of a lease " from year to year so long as both parties please," was, to create a tenancy for at least two years ; ^ but this case was recently overruled in the Court of Queen's Bench, by a decision that a tenancy from year to year lasts only so long as both parties please, and that it is determinable by either party, at the end of the first or any other year, by giving the usual notice to quit at the end of that year ; unless, in the creation of such a tenancy, the parties should introduce provisions showing that they contemplated a tenancy for at least two years.^ But where the words were, " for one year from the date hereof, and so on from year to year, until the tenancy hereby created shall be determined, as after mentioned," with a subsequent proviso that it should be lawful for either party to determine the tenancy by giving three months' notice to the other ; it was held that the tenancy was not determinable by a notice ex- piring before the end of the second year ; for the court con- sidered that the language of the contract clearly contemplated parties think fit," both must concur : Fowell v. Tranter, 3 H. & C. 458 ; so Brown v. Trumper, 26 Beav. 11. When this option is exercised, see post, § 332, n. 1 Doe V. Dixon, 9 East, 15 ; Folts v. Huntley, 7 Wend. 214; Sweetser V. McKenney, 65 Me. 225. A letting to a yearly tenant — and if he should wish a lease, that the lessor will grant the same for seven, fourteen, or twenty-one years, at the same rent — is sufficiently certain to be specif- ically performed. It is to be construed an optional lease for twenty-one years, determinable at the end of seven or fourteen years, at the option of the tenant. But, under such a contract, the landlord may call upon the tenant to exercise his option, and, in default, may determine the tenancy. Hersey v. Giblett, 18 Beav. 174. 2 Agard v. King, Cro. El. 775 ; Birch v. Wright, 1 T. R. 380. 8 Doe V. Smaridge, 7 Q. B. 957 ; Fox v. Nathans, 32 Conn. 348 ; Doe V. Mainby, 10 Q. B. 473. SEC. II.] ITS TBEMINATION. 93 a term to continue longer than one year.^ Where a lease is made determinable before its regular expiration, at the option of the lessee, by giving six months' notice, it is advisable for the lessor to make that option conditional upon payment of rent due to the period of determination, and the performance of the lessee's covenants ; for this being a condition precedent, the tenant will thereby be prevented from putting an end to the lease, leaving the charges upon the property unpaid, and the premises in a dilapidated state.^ § 83. Lease to exceed Lessor's Term void in La'w but valid in Equity. — In general, a deed which will not convey all that was intended will be upheld as a transfer of all that it was in the power of the grantor to convey ; ^ and our law may be con- sidered as having extended the English rule of law on this subject, which held that if a man has power to lease for ten years, and leases for twenty, the lease is bad at law, but good in equity for the ten years, operating as an execution of a power.* Upon this principle, a devise of lands to an executor, for the payment of the debts of the testator, or until his debts are paid, or a particular sum is raised from the profits of the estate, was held to create an estate for so many years only as should be found necessary to raise the required sum.^ No man may grant a lease to continue beyond the period at which his own estate is to determine ; but trustees who have a fee, though determinable, may grant a lease valid at law, though 1 Doe V. Green, 9 Ad. & E. 658 ; Regina v. Chawton, 1 Q. B. 247. So Wharton v. Kelly, 14 Ir. C. L. 293, where the premises were let " for one year certain," and rent quarterly in " each and every year during the tenancy," with certain allowances " during the first four quarters." A lease for one year, and so for two or three years, as the parties shall agree, means for two years ; and after eveiy subsequent year begins, is not determinable till that is ended. Harris v. Evans, 1 Wils. 262 ; s. c. in equity, Amb. 329. But it is a lease for one year only, without such sub- sequent agreement. lb. 2 Porter v. Shephard, 6 T. E. 665. » Law V. Hempstead, 10 Conn. 23 ; Martin v. Sterling, 1 Koot, 210. * Roe V. Prideaux, 10 East, 158 ; Taylor v. Horde, 1 Burr. 120. 6 Corbet's Case, 4 Co. 81, b; Carter v. Barnardison, 1 P. Wms. 509- 518. 94 DUBATION OF A TENANCY. [CHAP. in. it is to continue after their estate is determined. But equity can annul such a lease if unreasonable or improvident.^ A lease also under a power takes effect out of the estate of the donor of the power, and is not limited to the life of the donee.2 1 Greason v. Keteltas, 17 N. Y. 491. " Sugd. Pow. Ch. 7, Sect. 8, § 11. By statute, as in New York, a power may be given to a tenant for life to make leases for not over twenty- one years, to commence dnring life. CHAP, IV.] CONTEACTING PAEIIES. 95 CHAPTER IV. THE CONTEACTING PASTIES. § 84. Who may grant Leases. — All persons seised or pos- sessed of lands or tenements may grant leases thereof for any period commensurate with their respective interests; except such only as are under some legal disability, and whom the law supposes to be incapable .of entering into a contract,^ At common law, as well as by statute, there is the further quali- fication to be observed, that every grant of land is void, if, at the time of its delivery, the land shall be in the actual pos- session of a person claiming under a title adverse to that of the grantor. If, however, the lessor is in possession at the time of making a lease, he will be deemed to have the right of possession, as to all persons holding under him; but with- out such possession, he cannot make a valid lease ; for a bare right of entry is but a chose in action, and is not assignable.^ If be has actual possessioA, though it may have been obtained 1 Thus by N. Y. R. S. 719, §§ 8, 10 ; *. 739, § 147, citizens of the United States, except persons non compos or infants, may take, hold, and alien lands. Any one having a right of entry on land may convey. Price «. Pierce, 36 Me. 148. 2 Iseham v. Morrice, Cro. Car. 109. To constitute an adverse posses- sion, it must be under a claim of some specific title. Cxary v. Goodman, 22 N. Y. 170. And where an occupant of land produces no written title, but relies solely on possession, with an assertion of title, he can retain only so much as he had under actual improvement, and within a substantia] enclosure. Jackson ». Warford, 7 Wend. 62 ; Monro v. Merchant, 26 Barb. 383, 404 ; Sherry v. Freaking, 4 Duer, 452. By the Statute of Frauds, a parol gift of land in fee creates only a tenancy at will ; and, if the donee makes a lease, it is void, and cannot be rendered valid by any subsequent assent of the donor. Jackson v. Rogers, 1 Johns. Cas. 38 ; Doe V. Watts, 7 T. R. 85 ; Jenkins v. Church, Cowp. 482 ; Doe©. Butcher, . . Doug. 50. 96 CONTEACTING PAETIES. [CHAP. IV. tortiously, — a mere disseisor, in fact — it will enable him to make a lease, -which can only be avoided upon eviction, by one having a paramount title.^ § 85. Lessor's Possession essential. — Rule modified as to Mesne Lessee, Heir, and Vendee. — Possession is of SO much importance to the validity of a lease that if a disseisee wishes to make a lease of land of which he is disseised, he can only deliver it as an escrow, to take effect after he recovers pos- session. His deed will not operate before entry, further than to transfer the lessor's right of entry, to take effect after his entry .2 But this rule applies only to the original parties, for a lessee for years, having an interesse termini, may make a good lease of part, or an assignment of the whole of his term, before he enters on the demised premises.^ And if a man dies, and his heir, before entry, makes a lease of the land which descended to him, this is a good lease, for he is seised in law, though not in fact. But if a stranger had entered, and abated into the land, and then the heir had made the lease, it would have been bad, for it would have been made after a disseisin.* The possession of a tenant for life, how- ever, is not adverse to that of the remainder-man, and hence 1 Bao. Abr. Leases (I.), 4 ; Lee v. Norris, Cro. El. 331 ; Thurston's Case, Owen, 16 ; Mayowe's Case, 1 Co. 147 (a). Possession is the deten- tion or enjoyment of a thing which a man holds or exercises by himself or by another who keeps or exercises it in his name, and the enjoyment is necessarily exclusive. Redfleld v. Utida & S. R. R., 2-5 Baib. 54. A dis- seisin is an estate gained by wrong and injury ; and therein differs from a dispossession, which may be right or wi-ong. A mere entry upon another is not a disseisin unless it is accompanied with expulsion from the freehold ; and a peaceable entry upon land apparently vacant furnishes, per se, no presumption of wrong. Smith v. Burtis, 6 Johns. 197 ; Varick u. Jackson, 2 Wend. 166 ; Co. Lit. 3, b ; 18, b. 2 Doe V. Watts, 9 East, 19 ; Jennings v. Bragg, Cro. El. 447 ; Shai-p V. Sharp, ib. 483 ; Co. Lit. 48, b. The rule that avoids every conveyance of land which is held adversely at the time of the conveyance, does not apply to a lease made by the State ; for there can be no adverse possession as against the people. The people cannot be disseised. People v. Mayor, 28 Barb. 240. 8 Plowden, 133-142 ; Co. Lit. 46, b; Cro. Jao. 60. * Shep. Touch. 269. See 2 R. S. of N. Y. 294, § 11 ; Code of Pro. § 84. CHAP. IV.] CONTRACTING PARTIES. 97 the latter may make a valid lease, notwithstanding such pos- session.i A defaulting vendee may also make a lease of the land purchased, and receive rent therefor, which will continue valid until that sale is rescinded ; but such a lease will give the tenant no right of possession, after he has received notice of a rescission of the contract of sale.^ § 86. 0\wner's Possession presumed. — Undisputed right of, sufficient. — But possession will always be considered as fol- lowing the ownership, unless there is an adverse possession. And, where there has once been an actual seisin, it will be presumed to continue, although the premises may appear to be vacant.^ At common law no interest in land could pass from a vendor, before he had himself obtained possession, by livery of seisin ; but by force of the Statute of Uses, the pos- session was transferred in all cases to the use of the cesttii que use, who may now, if there is no adverse possession, make a lease for years, without actual entry.* It is enough that a 1 Grout ». Townsend, 2 Hill, 554; Doe v. Brown, 2 Ellis & B. 331. The possession of a tenant in common law, however long continued, is not, if unaccompanied with a claim of entire title, adverse to the co- tenants. Smith V. Burtis, 9 Johns. 174 ; Thompson v. Mayor, 11 N. Y. 115. But it is otherwise if he actually excludes his co-tenant. Northrop V. Wright, 24 Wend. 221; Humbert v. Trinity Ch., ib. 587 ; Butler u. Phelps, 17 id. 642 : Sherry v. Frecking, 4 Duer, 452. * Jones V. Hutchinson, 2 Tex. 370. * Fosgate v. Herkimer Manuf. Co., 9 Barb. 287; s. c. 12 id. 352. But where a grantor, after conveyance, remains in possession, it is not as owner, but as tenant to the grantee, and nothing but a clear, unequivocal, and notorious disclaimer of the latter's title can render the possession adverse. Jackson v. Burton, 1 Wend. 341 ; Swart v. Service, 21 id. 36. And see Butler v. Phelps, 17 Wend. 642. * Bellingham ». Alsop, Cro. Jac. 52; Dymmock's Case, ih. 408; Harvy V. Thomas, Cro. El. 216. To constitute an adverse possession, the entry of the disseisor must have been at the time under claim or color of title. Humbert v. Trinity Ch., 24 Wend. 587; Hoyt v. Dillon, 19 Barb. 644. Otherwise it is a mere trespass. Miller v. Piatt, 5 Duer, 272. It must be such as to raise the presumption of a deed, and the intention will guide the entry and fix its character. It must be continued, uninterrupted, no- torious, and exclusive; and the burden of proof is on the party alleging it to be so. 1 Hill. Eeal Prop. 47. It must be of such a nature as to indicate that the possession is claimed as a right, and is not the result VOL. I. — 7 98 COKTKACTING PARTIES. [CHAP. IV. lessor has a clear right of possession at the time of making his lease ; and if at such time he has an undisputed reversion his lease will be a good charge upon the reversion, and take effect in interest, and in possession also if the reversion hap- pens to be reduced into possession during the period limited by the contract for the enjoyment of the land, — the lessor being estopped, by his own deed, from saying that he did not demise the premises.^ § 87. Present inoperative Leases operate by Estoppel. — Al- though a lessor may have no title to the land which he undertakes to demise, or may be a disseisor, his lease will still operate by way of estoppel if he comes into possession, by purchase or descent, at any time before the expiration of the term.2 But as estoppels are not generally favored, and of indulgence, or of some compact short of a grant. Gayetty v. Bethune, 14 Mass. .53; Arnold v. Stevens, 24 Pick. 110. Under the New York statute, 1 R. S. 739, § 147, every grant of land is void, if, at the time of delivery, the land is in actual possession of a person claiming under a title adverse to that of the grantor. And the claim may be oral, if made by an actual occupant. Humbert «. Trinity Ch., su^ra. But if the entry is under color of title, the possession is adverse, however groundless the supposed title may be. The fact of possession and its character, the quo animo of the possessor, are the tests. La Frombois v. Jackson, 8 Cow. 589; Livingston v. Peru Iron Co., 9 Wend. 511. The possession of a mere intruder, making no claim, is insufficient; but if such a one obtains a deed from one who enters claiming title, his possession under that deed is adverse from that time. Jackson v. Smith, 13 Johns. 406 ; Jackson v. Frost, 5 Cow. 346. Nor will the mere expectation of a grant suffice. Howard v. Howard, 17 Barb. 663; Luce v. Carley, 24 Wend. 451. But it is no objection that the grant was fraudulently obtained : Bogardus V. Trinity Ch., 4 Sandf. Ch. 633; or was without any foundation as mat- ter of right or unauthorized: Jackson v. Elston, 12 Johns. 452; and see Bradstreet v. Clarke, 12 Wend. 602, 674; Bryan v. Atwater, 5 Day, 181; Clapp V. Bromagham, 9 Cow. 530. 1 Russell V. Doty, 4 Cow. 576 ; Kinsman v. Greene, 16 Me. 60 ; MiKord V. Feuwick, And. 288; s. c. Moor, 284; Bould v. Winston, Cro. Jac. 168; Sutton's Case, Cro. El. 140. It has been held in Pennsylvania that a purchaser at a sheriff's sale who has not received his deed cannot make a valid lease. Hall v. Benner, 1 Penn. 402. '^ Jackson v. Murray, 12 Johns. 201 ; Sinclair v. Jackson, 8 Cow. 543 ; Jackson v. Stevens, 16 Johns. 110 ; Cocke v. Brogan, 5 Pike, 693; Jack- son V. Bradford, 4 Wend. 619; Austin v. Ahearne, 61 N. Y. 6; Co. Lit. CHAP, rv.] CONTRACTING PAKTIES. 99 will not be permitted to defeat an estate if it can be avoided, there will be no estoppel if some interest actually passed by the lease, though the interest purported to have been granted is really greater than the lessor had, at the time, power to grant. Thus, if a lessee for the life of B. makes a lease for years, and then purchases the reversion in fee, after which the cestui qui vie dies, the lessor may avoid this lease, though several of the years therein expressed are still to come ; for he may confess and avoid the lease, which took effect in point of interest, and determined on the death of B.^ So if two join in a lease, and one only has any interest in the premises, it will enure by way of confirmation from the other, and not by way of estoppel.2 § 88. Successive Leases. — Estoppel applied to. — Where a lease for years cannot take effect immediately, by reason of a prior lease of the same premises, the second lease will operate presently by estoppel, for so much of the term as may be left after the determination of the former lease, by way of passing an interest.^ A grantor by deed is always estopped from saying he had no interest, unless he is a trustee for the pub- lic, deriving his authority from an act of the legislature ; * but if it appears, from recitals in the lease, that he had no interest 47, 227; Hermitage v. Tomkins, 1 Ld. Kay. 729; Webb v. Austin, 7 M. & G. 701; Whitton v. Peacock, 2 Bing. (N. C.) 411. If a man conveys land which is not his, and he afterwards purchases the land, he is, not- withstanding, bound by his deed, and will not be permitted to aver he had nothing, and the stranger to whom he sells will be equally estopped. Co. Lit. 45. a; 47, b; 352, a, b; Rawlyn's Case, 4 Co. 53, a; Iseham v. Morrice, Cro. Car. 110; Luston u. Stephens, 3 P. Wms. 873; Jackson V. Bull, 1 Johns. Cas. 81; Somes v. Skinner, 3 Pick. 52. 1 Leicester v. Rehoboth, 4 Mass. 180; id. 273; Jackson v. Hoffman, 9 Cow. 271; Co. Lit. 47, b; Anon. Ventr. 358; Brown v. McCormack, 6 Watts, 60; Bush v. Cooper, 18 How. 82. But the estoppel operates as against a lessor owning the equitable title to the leased premises at the time of the lease, and afterwards acquiring the legal title. Skidmore v. Railway Co., 112 U. S. 33, in which case the rule was applied against a judgment creditor of the lessor whose Judgment was subsequent to the lease. s Brereton v. Evans, Cro. El. 700. « Gilman v. Hoare, 1 Salk. 275. * Fairtitle v. Gilbert, 2 T. R. 169. 100 conteacting parties. [chap. IV. at the time of the demise, and he afterwards purchases the land, it will not enure to the lessee by estoppel.^ He is, however, always estopped from contending that he had merely an equitable, and not a legal, estate when he granted the lease.2 § 89. Tenant's Estoppel. — The estoppel of a tenant to deny his landlord's title, though belonging to a different topic than the creation of a demise, and fully discussed hereafter in con- nection with the landlord's remedies,* may be noticed properly here in view of considerations equally applicable to both kinds of estoppel. This estoppel was unknown to the common law,* and is an estoppel in pais? It had its origin in the early part of the last century, and probably from the features of the action of assumpsit for use and occupation." The only tenant's estoppel known when Lord Coke wrote was that strictly by indenture, and the peculiarities of this instrument gave rise to most of the rules then in force.^ Thus it was a principle that an estoppel would not bar a lessee beyond the duration of the interest which he derived under the lease. Therefore, if a man took a lease for years, by deed indented of his own land, it was no conclusion beyond the term, at the end of which the lessor might enter and occupy the land ; for, by the determination of the term, the estoppel was also determined.* But the tenant's estoppel is now no longer thus restricted, as it is founded on possession and not on the in- strument of demise,^ and is as operative after the conclusion 1 Hermitage v. Tomkins, 1 Ld. Ray. 729. 2 Green v. James, 6 M. & W. 656. « Post, §§ 705-707. * BJgelow, Estoppel, 346, 348, 849 (2d ed.) ; 6 Am. Law Rev. 1 et seq. ; Delaney v. Fox, 2 C. B. n. s. 768. 5 The only estoppels in pais, in Lord Coke's day, were entry, livery, partition, and acceptance of rent or an estate. Of these all but the last are obsolete. Bigelow, Estoppel, 346 (2d ed.). ' Bigelow, Estoppel, 350 (2d ed.); 6 Am. Law Rev. 4. T lb. ; MofEatt v. Strong, 9 Bosw. 57, 65. 8 Rawlyn's Case, 4 Co. 54, a; James v. Landon, Cro. El. 36. And see Page V. Kinsman, 43 N. H. 328. » 6 Am. Law Rev. 19; Bigelow, Estoppel, 350 (2d ed.). CHAP. IV.] CONTRACTING PARTIES. 101 of the lease as before, and until that possession ceases.^ It ia only where there is fraud or mistake, in consequence of wliich one takes a lease of his own land, that he will not be estopped to show this on the termination of the lease." § 90. Mutual Estoppel. — Again, it was a rule that all estop- pels should be reciprocal and mutual ; ^ but this was not only derived from, but limited to, those by indenture or by record.* A deed poll, or even an indenture, if not executed by both parties, could not create an estoppel.^ But this rule is no longer unqualified, and a lessor by estoppel is bound by his demise, though the tenant may elect whether or not to take the term when it accrues ; and, on the other hand, a tenant is concluded from denying the landlord's title, though the counter obligations upon the landlord to deliver and permit peaceable possession rest in contract only, and are in no sense estoppels. Thus, even when the lessor is under a disability, such as infancy, or, formerly, coverture, and the lease is void- able, the lessee is estopped until it is avoided.* § 91. Estoppels run with the Land. — But an estoppel is not confined wholly to the parties to the lease ; being annexed to the estate, it runs with the land, and is binding on all persons claiming under them. The heir of the reversioner being privy in blood, and taking the estate subject to the burdens imposed on his ancestor, is bound wherever that ancestor, leaving no estate in the premises, or only a contingent remainder, makes a lease by indenture, and afterwards purchases the fee of the land demised, and dies.^ The heir, however, will not be 1 Post, § 705; Binney v. Chapman, 5 Kck. 124; Doe v. Skirrow, 7 A,d. & E. 157. ^ Post, § 707, notes, and cases cited. » Co. Lit. § 352. 1 Co. Lit. 363, b; Pike v. Eyre, 9 B. & C. 909; Wright v. Douglass, 10 Barb. 97. 6 Hill V. Saunders, 2 Bing. 112; Cardwell v. Lucas, 2 M. & W. Ill; Wilson J'. Woolfryes, 6 M. & S. 341. « Russell V. Irwin, 38 Ala. 44; Gran v. White, 42 Mo. 285; Welland Canal v. Hathaway, 8 Wend. 480; Prevost v. Lawrence, 51 N. Y. 219. ' Webb V. Austin, 7 M. & G. 701; Weale v. Lower, PoUexf. 54; Co. Lit. 352, a. 102 CONTRACTING PABTLES. [CHAP. IV. bound, unless he claims the land from him who created the estoppel ; for, if he purchases the reversion, or if it devolves upon him bj descent from another ancestor, he will not be bound.^ Nor will he be bound in such a case unless the estoppel would have operated upon the inheritance in the hands of his ancestor ; and, therefore, if tenant for life makes a lease for years, and afterwards purchases the reversion and dies within the term, his heir may enter ; for a freehold being a greater estate than any term of years, the decease of the tenant for life, out of whose estate the lessee's interest arose, is the regular period appointed by law for the determination of the lease.2 Privies in estate are also bound, when a man makes a lease, by indenture, of property to which he has no title, and afterwards, becoming its owner in fee, disposes of it to another ; for the purchaser will be estopped from disputing the lease.^ 92. Rule of Assignee's Estoppel obsolete. — It was formerly thought that the assignees respectively of the lessor or lessee by estoppel could not maintain an action on the covenants of the lease against the other party thereto.* This rule, which was limited to the technical action of covenant^ and to es- toppel by deed,^ turned strictly on the requirements of special pleading, and was never operative where this system was not in force ; but the estoppel arose without being pleaded.'^ It seems, moreover, now clearly overruled even in England.^ 1 Edwards v. Rogers, W. Jo. 460; Goodtitle v. Morse, 3 T. R. 371. 2 Treport's Case, 6 Co. 15, a; Co. Lit. 47, b; Blake v. Foster, 8 T. E. 487; Carvick v. Blagrave, 1 Br. & B. 531. ^ Trevivan v. Lawrence, Holt. 282; Webb v. Austin, supra; Sturgeon V. Wingfield, 15 M. ,& W. 324. * Noke V. Awder, Cro. El. 486; Whitton v. Peacock, 2 Bing. (N. C.) 411 ; Carvick v. Blagrave, 1 Br. & B. 531. ' Kennie v. Robinson, 1 Bing. 147; Dunshee v. Grundy, 15 Gray, 814. ^ Kieran v. Sandars, 6 Ad. & E. 515; Veale v. Warner, 1 Wms. Saund. 323, 328, n. (d), ' 76. ; Patten v. Deshon, 1 Gray, 325, 326. ' Gouldsworth v. Knights, 11 M. & W. 344; Cuthbertson v. Irving, 4 H. & if. 342; 6 id. 135; 1 Smith, L. C. 38 a-38 g. SEC. I.] INFANTS. 103 SECTION I. LEASES BY AND TO INFANTS. § 93. Voidable, and when. — A minor cannot make a lease that will bind liim when he arrives at full age ; ^ the rule being now well settled in this country, as well as in England, that all contracts except for necessaries made by a minor, includ- ing his deeds and other instruments under seal, are voidable ; that is, he may disavow and so annul them, either at or before his majority, or within a reasonable time after it.^ But if he makes a lease rendering rent, it passes an interest in the estate to the lessee, and binds the adult party, until the minor chooses to avoid it.^ If, however, the lease is by deed, he cannot avoid it, until he comes of age ; although he may always enter and take the profits, until the time arrives when he has legal capacity to affirm or disaffirm the deed, and the instrument of lease will not be rendered void by such an entry, for he may still affirm it at full age.* But when the lease is by parol, if he ratifies it on coming of age, as by receiving 1 Koof V. Stafford, 7 Cow. 179; Johnson v. Packer, 1 Nott & McC. 1; Roberts v. Wiggin, 1 N. H. 74; Jackson v. Carpenter, 11 Johns. 539. A rent-charge granted by an infant is voidable only. Hudson v. Jones, 3 Mod. 310. 2 Bool V. Mix, 17 Wend. 119; Eagle Fire Co. v. Lent, 6 Paige, 635; per Story, J., in Tucker v. Moreland, 10 Pet. 71; Wheaton v. East, 5 Yerg. 41; Worcester v. Eaton, 13 Mass. 371; Roberts v. Wiggin, supra; Phillips V. Green, 5 T. B. Mon. 344; Farr v. Sumner, 12 Vt. 28. The rule seems to be universal that all deeds or instruments under seal, exe- cuted by an infant, are voidable only, with the single exception of those which delegate a naked authority, which are void. Per Bronson, J., in Bool V. Mix, supra. * Zouch V. Parsons, 3 Burr. 1794; Walmsley v. Lindenberger, 2 Rand. 478; U. S. V. Bainbridge, 1 Mason, 82; Goodsell v. Myers, 3 Wend. 479; Brown V. Caldwell, 10 S. & R 114. * Roof V. Stafford, 7 Cow. 179; 9 id. 626; Bac. Abr., tit. Infancy; Bool V. Mix, supra. An infant cannot avoid his lease by deed during minority. Slator v. Trimble, 14 Ir. C. L. 342; Robson v. Flight, 4 De G., J. & S. 608. 104 CONTEACTING PAETIBS. [CHAP. IV. rent which accrued after that period, or the like, he confirms the lease and cannot afterwards impeach it.' § 94. Ratification implied. — Very slight acts and circum- stances are sufficient to show an infant's assent to a contract after his majority .^ In fact, our authorities seem to authorize the statement of the rule to be, that no distinct act of confirma- tion is necessary, but that all the voidable contracts of an infant are binding upon him, unless there be an express disaffirmance on his part, when he comes of age.^ And as to a lease, it is held that some act of notoriety, such as the bringing of an action of ejectment, or the making of a formal entry or demand of possession, is required for such a purpose.* The mere exe- cution, after he attains his age, of another lease or conveyance of the same property, even to a purchaser for value, is no dis- affirmance of an infant's deed.^ And to render a subsequent » Smith V. Low, 1 Atk. 489; Brown v. Caldwell, 10 S. & K. 114; Co. Lit. 308, a; 1 Kol. 730; Smith v. Bowin, 1 Mod. 25; Warwick v. Bruce, 2M. &S. 205; 4 Leon. 4. ^ Houser v. Reynolds, 1 Hayw. 143; Den v. Stowe, 2 Dev. & B. 320. But in Slator v. Trimble, 14 Jr. C. L. 342, acceptance of rent was held an affirmance of a lease during minority, though infant had commenced an ejectment before majority, and had demised the land to another. In England, by statute 9 Geo. IV. c. 14, § 5, it is necessary that the ratifi- cation be in writing, signed by the party to be charged thereby; but any writing is sufficient, which, in an adult, would be considered an adoption or ratification of an act done by one acting as an agent. Harris v. Wall, 1 Ezch. 122; Hartleys. Wharton, 11 Ad. & E. 934. A similar statute exists in Maine. . * Zouch V. Parsons, supra; Holmes v. Blogg, 8 Taunt. 35; Jackson v. Burchin, 14 Johns. 124; Curtin v. Patton, 11 S. 8e K. 305; Cheshire d. Barrett, 4 McCord, 241 ; Richardson v. Boright, 9 Vt. 368. The rule was stated in a Connecticut case to be that there are three ways of affirming the voidable contracts of an infant when be arrives at full age: 1. By an express ratification; 2. By acts which reasonably imply an affirmance; 3. By his omission to disaffirm within a reasonable time. Kline v. Bebee, 6 Conn. 494; Worcester v. Eaton, 13 Mass. 371. < Slater v. Brady, 14 Ir. C. L. 61. 5 Bool a. Mix, supra/ Domiuick v. Michael, 4 Sandf. 374; Slater «. Brady, supra. In order to avoid the deed of an infant, after he comes of age, he must, before suit brought, make an entry on the land, and execute a deed to a third person, or do some other act of equal notoriety, in dis- SEC. I.] INFANTS. 105 conveyance, after he arrives of age, an act of dissent to tlie prior deed, it must be so inconsistent therewith, that both deeds cannot stand together.^ § 95. VTho may avoid. — Burden to prove Infancy. — None but the infant himself, or his personal representatives, can avoid a lease on the ground of infancy. Being a personal privilege, intended for his special benefit, he is, while living, the exclusive judge of the propriety of exercising it ; and when dead, those alone should interfere who legally and personally represent him.^ For this reason, mere privies in estate, such as assignees or guardians, cannot avoid an infant's lease.^ And so little encouragement do the courts afford to a de- fence of this description, that, when a plea of infancy is in- terposed, the burden of proof rests entirely on the infant, even though the issue be upon a ratification of his contract after he came of age.* § 96. Infant lessee's Ratification implied from Possession. — An infant lessee may also avoid a lease, although it is always available for the purpose of vesting the estate in him so long as he thinks proper to hold it. If, upon his arrival at full affirmance of the deed. Voorhies v. Voorhies, 24 Barb. 130. Mortgaging the property to a tenant, referring to the lease, is a confirmation. Story v. Johnson, 3 Y. & C. 586. 1 The Eagle Fire Co. v. Lent, 6 Paige, 635. Mere acquiescence in a conveyance, after majority, without any intermediate benefit, such as the possession of the premises or the collection of rent, is no affirmance of the conveyance. Jackson v. Carpenter, 11 Johns. 539. And no bare recog- nition, or silent acquiescence, for any time less than the period of statutory limitation, will amount to a ratification of a deed. Voorhies v. Voorhies, supra ; Jackson v. Burchin, supra. 2 Jackson v. Todd, 6 Johns. 257; Koberts«. Wiggin, 1 N. H. 73; Hart- ness V. Thompson, 5 Johns. 160. The lessee cannot set up the lessor's minority in order to defeat the lease or to obtain relief from its covenants. Field V. Herrick, 101 lU. 110. 8 Hoyle B. Stowe, 2 Dev. & B. 323. But see Dominick v. Michael, supra ; AVhittingham's Case, 8 Co. 42, b ; Breckenridge's Heirs v. Ormsby, 1 J. J. Marsh. 236; Oliver v. Houdlet, 13 Mass. 237; Irvine v. Crocket, 4 Bibb, 437. 1 2 Greenleaf, Ev. § 362; Jeune v. Ward, 2 Stark. 326. 106 CONTRACTING PARTIES. [CHAP. IV. age, he continues in possession of land demised to him during his minority, he will be deemed to have waived his right to avoid it, unless he elects to do so within a reasonable time thereafter.! It belongs to a jury to determine what is a reasonable time, under the circumstances of each particular case ; but it seems that an acquiescence for four months after his majority would preclude an infant from afterwards dis- affirming a lease.2 As to his liability for rent, or the per- formance of other stipulations contained in the lease, he is in the same situation, with respect thereto, as in case of any other contract; for he may disaffirm it when he comes of age, or at any time previously thereto, and thus avoid his obligation. So long, however, as he remains in possession, his liability to pay rent and perform covenants subsists by virtue of the privity of estate ; and he can only escape pay- ment by avoiding the lease before rent-day ; for, as a general rule, an infant cannot retain possession of property, and at the same time repudiate his contract in relation thereto.^ But where his liability rests wholly in contract, as it would do, after he had quit possession, he may plead his infancy as in other cases.* An infant, however, is always liable for necessaries ; ^ and, although this is a relative term, depend- ing upon his situation in life, an obligation to pay for lodg- ings probably comes within this description. And, in a case 1 Bac. Abr. , tit. Infant, p. 611; Kline v. Bebee, 6 Conn. 494. ^ Doe V. Smith, 2 T. R. 436 ; Holmes v. Blogg, supra. s Kitchen v. Lee, 11 Paige, 107; Henry v. Root, 33 N. Y. 526. Where an estate vests in an infant by operation of law, and he has not disclaimed, be becomes liable for rent, notwithstanding his infancy. Kelly v. Coots, 5Ir. C. L. 4:69; post, §628. « Kelsey's Case, Cro. Jac. 320. In N. W. R. R. v. M'Miohael, 5 Exch. 126, Parke, B., thus states an infant's liability: "His purchase vested the estate in him, on entry and taking possession, and rendered him liable to the obligations attached to it until he disagreed to the estate and thereby caused the conveyance to be inoperative, and so avoided the obli- gation to pay rent. As the estate vests, the burthen upon it must con- tinue to be obligatory until a waiver or disagreement by the infant takes place." And per Gibbs, C. J., in Holmes v. Blogg, supra, an infant may avoid a lease, and thereby escape the burden of the covenants ; but that is all he can do. And see post, § 628. 6 Smith V. Oliphant, 2 Sandf. 306; Randall v. Sweet, 1 Den. 460. SEC. II.] PEESONS OF UNSOUND MIND. 107 where an infant rented a house, and exercised his trade as a barber therein, it was held to be properly left to the jury to decide, in an action to charge him with the rent of a house after he had quit possession, whether such a contract came within the meaning of the term " necessaries " so as to bar his plea of infancy.^ SECTION" II. BT PERSONS OF UNSOUND MIND. § 97. General Incapacity of Insane Persons. — Idiots and lunatics, being void of understanding, and consequently unable to give that deliberate assent which is necessary to the validity of a contract, are, on principles of humanity as well as of justice, restrained from making any contract.^ But previous or subsequent lunacy will not vitiate a contract entered into during an interval of sanity .^ Mr. Justice Story, in his Com- mentaries on Equity Jurisprudence, lays it down as a general principle, that the contract of any person who is non compos mentis — from age, imbecility, or other personal infirmity — is absolutely void.* But this rule does not seem to apply to a deed, for the deed of a person who is non compos mentis is only void if he be under guardianship ; but if he is not under guardianship it is merely voidable, and only becomes void according to circumstances.^ The guardian or committee of 1 Lowe V. Griffiths, 1 Hodges, 30; s. c. 1 Soott, 415. 2 Faulder v. Silk, 3 Camp. 126; Seaver v. Phelps, 11 Pick. 304; Jack- son V. King, 4 Cow. 207; Dane v. Kirkwall, 8 C. & P. 679. An idiot is one who is a natural fool, or one a nalivitate. A lunatic is one who has become non compos mentis by the visitation of God. ^ Jackson v. King, supra; Johnson v. Moore, 1 Litt. 371; Owen v. Davies, 1 Ves. Sr. 82. ^ 1 Story, Eq. § 222. 6 Wait V. Maxwell, 5 Pick. 217; Webster v. Woodford, 3 Day, 90. The lunacy of a mortgagor does not absolutely avoid the mortgage; it is, at most, voidable at the election of the lunatic or his personal represen- tatives, or those claiming some interest under him in the premises. A lunatic is not absolutely disqualified from making a contract; the law 108 CONTEACTING PARTIES. [CHAP. IV. a lunatic is generally authorized to execute leases of his prop- erty, under the direction of the court which appointed him to office ; but, without the aid of a statutory provision con- ferring such authority upon the court, the committee of a lunatic would have no such power.^ § 98. Weakness alone does not incapacitate. Mere weak- ness of mind is not, of itself, a sufficient ground for avoiding will, in certain cases, even raise one by implication (Wentworth v. Tubb, 2 y. & C. Ch. 537). There is a strong analogy between a lunatic and an infant in relation to their power to contract. Either can oblige himself for necessaries, Baxter v. Portsmouth, 5 B. & C. 170; s. c. 2 C. & P. 178; 7 Dowl. & Ry. 614; Howard v. Digby, 2 C. & F. 634; Leach o. Marsh, 47 Maine, 548 ; and the law provides for each a formal process by which to avoid their agreements. Per Gardiner, J., in Ingraham v. Baldwin, 9 N. Y. 45. In those jurisdictions where a judicial finding of insanity or habitual drunkenness renders the subject civilly dead, all contracts made by an idiot, lunatic, or habitual drunkard, after the finding, are absolutely void. L'Amoureux v. Crosby, 2 Paige, 422; White v. Palmer, 4 Mass. 147 ; Beverley's Case, 4 Co. 126, b. But where an artificial incapacity is not created by the finding, or where no determination of the question of sanity has been had, the only " disability which will render the party incapable of contracting, is that which arises from a total loss of under- standing, either in respect of all subjects, or of the particular act done: and it does not follow because . . . one might be a proper subject of a com- mission . . . that his acts will be either void or voidable in a court of law." Buswell, Law of Insanity, § 277, and cases cited. 1 Knipe v. Palmer, 2 Wils. 130. After a commission to inquire into an alleged case of lunacy has issued, and before inquisition found, all persons deal vrith the suspected individual at their peril ; and conveyances made by him after that event will be set aside if the person dealing with him knew that proceedings had been taken. Griswold v. MiUer, 15 Barb. 520. The leading English cases of Molton v. Camroux, 2 Exch. 487; 8. c. 4 Exch. 17; Beavan v. McDonnell, 9 id. 309, established the rule that a contract is not vitiated by the unsoundness of mind of one of the contracting parties if this fact is unknown to the other, and no advantage is taken of the lunatic; and the rule is now generally adopted in the United States. See Buswell, Law of Insanity, §§ 287, 292. But this rule applies to cases in which the contract is not merely executory, but has been executed in whole or in part so that the parties cannot be restored to their original position. The committee of a lunatic becomes personally liable for rent if he takes possession and makes use of premises under a lease held by the lunatic. Matter of Otis, 34 Hun, 542. SEC. II.] PEBSONS OF UNSOUND MIND. 109 a contract, unless some stratagem or fraud has been resorted to by the person in whose favor it was made ; for, if a man be legally compos mentis, he is the disposer of his own prop- erty, and his will stands as a reason for his actions.^ If an illiterate person is induced to sign a deed, by a misrepresenta- tion of its nature and contents, such deed, being obtained by fraud, is void ; ^ but if he did not request it to be read to him, and no false representation of its contents was made, it will not be avoided merely on the ground of his ignorance.^ Even a person who is deaf and dumb from his birth, having, how- ever, sufficient intellectual capacity to comprehend the nature of his acts, is not legally incapable of executing a deed ; and, although its contents are not fully communicated to him, for the want of sufficient signs, it will be sufficient if it appears that he knew he was making a conveyance of his estate.* Yet, if, by fraud and misrepresentation, a lease different from the one which was directed to be prepared be imposed upon a blind man for execution, he may afterwards treat it as a nullity.^ Persons deaf, dumb, and blind from their nativity, labor under an absolute incapacity.® § 99. Nor old Age alone. — Nor does old age, alone, incapa- citate a person from granting a lease. Fraud and imposition would, of course, defeat it ; but the mere circumstance of an advanced age is not a sufficient ground from which to presume imposition; for, as Mr. Justice Buller observed in the case referred to, we have seen the greatest abilities displayed at a 1 Dods V. Wilson, Const. 448; Odell v. Buck, 21 Wend. 142; Fetrie V. Shoemaker, 24 id. 85; Jackson v. King, 4 Cow. 207, 218; Osmond v. Fitzroy, 3 P. Wms. 130; Toomes v. Conset, 2 Atk. 251; Spragner. Duel, 11 Paige, 480. 2 Jackson v. Hayner, 12 Johns. 469 ; White v. Small, 2 Ca. in Ch. 108. * Hallenbeck v. Dewitt, 2 Johns. 404. No aflSrmative proof of his knowledge of the contents is necessary. Mallan v. Story, 2 E. D. Smith, 331; Harris v. Story, ib. 363. * Brown v. Brown, 3 Conn. 299; Brower v. Fisher, 4 Johns. Ch. 441; Co. Lit. 42, b; Shulter's Case, 12 Co. 90, a. * Shulter's Case, supra ; Manser's Case, 2 Co. 3, a ; and Thoronghgood's Case, id. 9, a. 6 Co. Lit. 42, b; Com. Dig. (Capacity), D. 4. 110 CONTEACTIKG PARTIES. [CHAP. IV. greater age than seventy-five.^ So a lease made by a party under duress is not absolutely void but voidable only by him when he recovers his free agency; but he cannot avoid it under the plea of non est factum, for it is his deed at the time of action brought, and he can only avoid it by a special plea.2 § 100. Drunkenness as avoiding the Contract. — If a person is in an extreme state of intoxication, so as to be deprived of the exercise of reason, a lease obtained from him while in that condition would be absolutely void.^ This, however, is an extension of the old rule of law on the subject, which was, that it was only in cases where an unfair advantage had been taken of a drunken person, or some contrivance or manage- ment had been resorted to for the purpose of drawing him into drink, that equity would relieve him.* The old jurists, in fact, held that a man was not to be relieved at all from a contract which he had made while drunk.^ But the modern doctrine, concurring with the civil-law writers, is now under- stood to be that a contract made under such circumstances is void. Under a plea of non est factum, therefore, a defendant will be permitted to give in evidence that he was made to sign ' Lewis V. Pead, 1 Ves. 19; Waters v. Bavral, 2 Bush, 598. 2 Whelpdale's Case, 5 Co. 119, a. Thoroughgood's Case, 2 Co. 9, a. By duress is meant that degree of severity, either threatened and impending or actually inflicted, which is suflBoient to overcome the mind and will of a person of ordinary firmness. 2 Greenl. Ev. § 301. Duress by mere advice, direction, influence, or persuasion, is unknown to the law. Bar- rett V. French, 1 Conn. 354. ^ Prentice v. Achorn, 2 Paige, 30; Dulaney v. Green, 4 Harr. 285; Burns v. O'Rourke, 5 Rob. (N. Y.) 649; Barrett v. Buxton, 2 Aik. 167; Pitt V. Smith, 3 Camp. 33; Fenton v. HoUoway, 1 Stark. 126; Cooke V. Clayworth, 18 Ves. 16; In re L3Tich, 5 Paige, 120. Where a person, for any considerable part of his time, is intoxicated to such a degi-ee as to be deprived of his ordinary faculties, it is prima facie evidence that he is incapable of managing his affairs, or of making a contract. In re Tracy, 1 Paige, 582. * Cory V. Coiy, 1 Ves. Sr. 19; 1 Fonb. Eq. 67; 1 Mad. Ch. 303. So Belcher v. Belcher, 10 Yerg. 121. ^ Beverley's case, 4 Co. 125; Osmond v. Fitzroy, 3 P. Wms. 130; Morris v. Nixon, 7 Humph. 579. SEC. ni.] MARRIED WOMEN. HI the deed when he was so drunk that he did not know what he did.i But it is admitted that evidence of complete and total drunkenness should be adduced, and that it ought to be clear and satisfactory.^ The decisions of some courts, however, would make the contract of an intoxicated man voidable only ; and not to be avoided, if his assent has been given after he became sober.^ SECTION III. BY AND TO MARRIED WOMEN. § 101. Disability of, at Common Law. — At Common law, the free agency and ability of a married woman to contract is entirely suspended during marriage, and she is incapable, without the concurrence of her husband, of making a valid lease of lands, of which they are seised in her right, or of which she is possessed in her own right. Her separate deed, being absolutely void, does not admit of confirmation ; and it is only when made under a power contained in a settlement authorizing sucli acts, that her individual leases can be sus- tained. The husband has sole dominion over her lands, with a right to lease and take the rents and profits thereof, so long as the marriage relation subsists; and if a living child be born of the marriage, he has the same right during his own life, if he survives her.* He has also an exclusive and abso- lute power of disposing of all such leasehold interests as she may possess ; though, on his failing to dispose of them in his lifetime, they belong to her in preference to his personal rep- 1 Cole V. Kobbins, Bui. N. P. 172; Fenton v. Holloway, 1 Stark. 126. 2 Adm'r. of Lee v. Ware, 1 Hill (S. C), 313; Johns v. Fritchey, 39 Md. 258. ' Keinicker v. Smith, 2 Har. & J. 421; Arnold v. Hickman, 6 Munf. 15; Williams «. Inabnet, 1 Bailey, 343; Eaton v. Perry, 20 Mo. 96; Matthews v. Baxter, L. R. 8 Exch. 132. * Jackson v. McConnell, 19 Wend. 175; Chancy v. Strong, 2 Root, 369; Co. Lit. 46, b; 851, b; Manby v. Scott, 1 Sid. 120; Zouoh t>. Parsons, 3 Burr, 1805; 4 Kent, Com. 26. 112 CONTRACTING PARTIES. [CHAP. IV. resentatiyes.^ If he dies before her, he cannot dispose of them by will ; but, if he survives her, they become his own absolute property .^ But his power of leasing her freehold estates is restricted to the continuance of a demise, made by himself alone, beyond the period of their joint lives, unless he becomes entitled as tenant by the curtesy ; in which case the lessee may remain in possession during the remainder of the term, subject to an earlier determination by the death of the lessor.^ § 102. Lease by Husband of "Wife's Property. — The husband's lease of his wife's lands, in which she has not joined, will only bind her during the lifetime of her husband, for after his death she may confirm or avoid it at pleasure, yet, until she avoids it by entry, it will stand good.* And the acceptance of rent by her which has accrued since the death of her hus- band, will be deemed evidence of its affirmance.^ But a mere verbal lease by husband and wife, of her lands, or a written lease to which she is not a party, is void as to the wife, and cannot be affirmed by her assent after the death of the hus- band, for her consent at the commencement of the term must appear by deed.^ 1 Druce v. Denison, 6 Ves. 394; Wildman v. Wildman, 9 id. 177; Sym's Case, Cro. El. 33; Loftus's Case, id. 278; Hay ward v. Hayward, 20 Pick. 517; Co. Lit. 351, b. 2 Jones V. Patterson, 11 Barb. 572; Hyde v. Stone, 9 Cow. 230; Wat- son V. Bonney, 2 Sandf. 405; Co. Lit. 300, a, b; 351, a. The same result follows a divorce a vinculo matrimonii. Legg v. Legg, 8 Mass. 99; see also Vallance v. Bausch, 28 Barb. 633. 8 Dixon V. Harrison, Vaugh. 46; Miller v. Manwaring, Cro. Car. 397; Marquat v. Marquat, 12 N. Y. 336. * Doe V. Weller, 7 T. R. 478; Jackson v. HoUoway, 7 Johns. 81; Brown v. Lindsay, 2 Hill, Ch. (S. C) 542; Jordan v. Wikes, Cro. Jac. 332; Smallman v. Agborrow, id. 417; Greenwood v. Tyber, ib. 563; Winstell v. Hehl, 6 Bush, 58. = Worthington v. Young, 6 Ohio, 313; Trout v. McDonald, 83 Pa. St. 144; Wotton v. Hele, 2 Saund. 180 ; but see Winstell v. Hehl, supra. ^ Turney ». Sturges, Dyer, 91, a; Walsal v. Heath, Cro. El. 656; Jack- son V. HoUoway, Winstell v. Hehl, supra. We have stated what is un- derstood to be the common law of this country on the subject of marital rights with respect to leases ; but these rights have been materially modi- fied by statute in several of the States. In New York, Pennsylvania, SEC. III.] MARRIED "WOMEN. 113 § 103. Deed of Wife, how far Effectual. — The common law, in fact, held every conveyance of a married woman absolutely void, except when done by matter of record, as by a fine and recovery ; and even then, unless her husband was a party to the record, he might avoid it. But this mode of conveyance is now abolished by the English statutes, and has never been in force in the United States.^ By local usage, however, in several if not in all the States, the wife's deed, in which her husband joined, followed by her separate acknowledgment, was held to be sufficient to pass her estate.^ By the New York Colonial Act of 1771, and by similar enactments in that as well as in other States, these latter modes of conveyance, with separate acknowledgment, were established or confirmed.^ § 104. "Wife's statutory right to convey. — Recent legisla- tion has still further modified the common law with respect to the right of a married woman to control her separate estate, giving her power to take, hold, enjoy, and dispose of property, whether leasehold or otherwise, with the rents, issues, and profits thereof ; so that she may now make leases of her sepa- rate estate, and contract in reference thereto, in the same manner and with the like effect as if she were unmarried.* Maine, New Hampshire, Massachusetts, Connecticut, Ohio, Illinois, Kentucky, Iowa, Wisconsin, Alabama, New Jersey, Indiana, and Rhode Island, the common law, which makes marriage a gift of all a woman's personal property to the husband, is, in effect, repealed ; and a woman who marries without any antenuptial contract, retains her property and all her subsequent acquisitions. She can hold separate property at law as she formerly could only in equity, and is liable, so far as this goes, on her separate contracts, whether made before or after marriage. 1 Meriam v. Harsen, 2 Barb. Ch. 232. = Thatcher v. Omans, 3 Pick. 521; Davey v. Turner, 1 Dall. 11; Wat- son V. Bailey, 1 Binn. 470; Fowler v. Shearer, 7 Mass. 14; Gordon u. Haywood, 2 N. H. 402; Manchester v. Hough, 5 Mass. 67; Lithgow r. Kavenagh, 9 Mass. 172; Jackson v. HoUoway, supra. The Revised Statutes of New York further provided that a non-resident /eme covert might convey lands in that State by deed jointly with her husband, and the acknowledgment or proof of execution might be as if she were sole. 8 Grout t'. Townsend, 2 Hill, 554; Bool i-. Mix, 17 Wend. 119; Jack- son V. Gilchrist, 15 Johns. 89; Colcord v. Swan, 7 Mass. 291 ; Sawyer v. Little, 4 Vt. 414; Albany Ins. Co. v. Bay, 4 N. Y. 9. * Knapp V. Smith, 27 N. Y. 277; Draper v. Stouvenal, 35 id. 512. VOL. I. — 8 114 CONTRACTING PARTIES. [CHAP. IV. In some of the United States the husband's joinder or con- cnrrence in the lease or conveyance of his wife's real estate is still necessary ,1 though in others she may convey as if she were sole, and act without his concurrence.^ And a separate acknowledgment by the wife upon her private examination has also been dispensed with by statute.' She cannot, how- ever, either separately or jointly with her husband, execute a valid power of attorney for either purpose ; since the statutes which gave her a right to convey by deed do not authorize her to delegate that right to another.* And though at com- 1 Thus formerly in Massachusetts, to anything more than a lease for one year: Gen. Stat. c. 108, § 2; Child v. Sampson, 117 Mass. 62; but this requirement is now repealed: P. S. c. 147, §§ 1-7. In New Jersey, the husband must consent. Den v. Lawshee, 4 Zab. 613. So in Min- nesota, unless the wife is authorized by a power. Gen. Stat. 1858, c. 61, § 108. Under L. 1869, c. 56, § 4, the husband cannot, as the wife's agent or attorney, make a valid lease of her property. Sanford v. Johnson, 24 Minn. 172. In Pennsylvania, though the wife is vested with her ante- nuptial property in the broadest terms, both must join. See Peck v. Ward, IS Pa. St. 506; Thorndell v. Morrison, 25 id. 326; Shinn «. Holmes, id. 142. So in Rhode Island: Gen. Stat. 1857, c. 136, §§ 4-8; Vermont: R. S. c. 65, § 2; c. 71, § 1; Maryland: Gen. L. c. 45, §§ 1-3; Ohio: see Miller v. Hine, 13 Ohio, ^565; Indiana: R. S. c. 77, § 4; Reese v. Cochran, 10 Ind. 195. So in Missouri, Virginia, Kentucky, Tennessee, Alabama, Florida, Mississippi, Arkansas, Texas, and California. Under the Const, of Kansas, Sec. 9, Art. 15, establishing homesteads, a husband cannot, without the wife's consent, lease the homestead property and give pos- session, although the title to the same is in his name, if the lessee's possession will interfere with the enjoyment of the property by the wife. Coughlin V. Coughlin, 26 Kan. 116. In Delaware the common law still obtains, and joinder is necessary. Harris v. Burton, 4 Harringt. 66. So in Connecticut and Maryland ; while in Georgia, the wife's realty vests in the husband by the marriage. ^ So in Maine, Massachusetts, New Hampshire, New York, Michigan, Illinois, and Iowa. See Prevost v. Lawrence, 51 N. Y. 219 ; and in some States she may lease even to her husband: Albin v. Lord, 39 N. H. 196; see State v. Hayes, 59 id. 450. She may so lease in Mississippi. Bank of America v. Banks, 101 U. S. 240. Or she may convey to him directly. Allen V. Hooper, 50 Me. 371 ; Farr v. Sherman, 11 Mich. 33. ' Blood V. Humphrey, 17 Barb. 660; Yale v. Dederer, 18 N. Y. 271; Wiles w. Peck, 26 id. 42. But a separate acknowledgment is still necessary in Rhode Island: Gen. Stat. 1857, c. 136, §§4-8; New Jersey: Den u. Lawshee, 4 Zab. 613 ; Pennsylvania, North Carolina, and Kentucky. * Sumner v. Conant, 10 Vt. 1 ; Lane v. McKean, 3 Shep. 304. An SEC. III.] MARRIED WOMEN. 115 mon law, from her general inability to contract, a married woman was not bound by an agreement to make a lease, or by any express covenant contained in a lease either at law or in equity,^ yet this has been materially altered by recent statutes in several States.^ § 105. Married Women as Lessees at Common Law. — The same reasons which at common law prevented a married woman from making a lease disqualified her from assuming the responsibilities of a lessee. A single woman might, of course, be a lessee, and if she afterwards married, her liabili- ties devolved upon her husband, and he was bound for all arrears of rent, accruing as well before as after his wife's death, during the continuance of the lease.^ But a married exception, however, to this general rule now prevails in New York; for by a statute of that State, when any married woman residing out of the State shall have joined or shall join with her husband in executing a power of attorney for the conveyance of real estate, situated in the State, the conveyance executed in virtue of such power shall have the same force and effect as if executed by such married woman in her own person; provided, that the execution of the power of attorney by such married woman shall have been first duly proved, or acknowledged, according to the provision of the statutes in relation to conveyances executed by married women residing out of the State. Laws of 1835, c. 275. 1 Jackson v. Vanderheyden, 17 Johns. 167 ; Martin v. Dwelly, 6 Wend. 1; Butler v. Buckingham, 5 Day, 492; Grout ». Townsend, 2 Hill, 554; Ex parte Thomes, 3 Greenl. 50; Aldridge v. Burlison, 3 Blackf. 201. ^ Thus in New Hampshire and Massachusetts she is bound by aU contracts in relation to her property or business. Mass. Gen. Stat. c. 108, § 2; Chapman v. Foster, 6 Allen, 136; N. H. Comp. Stat. 1853, c. 382; Ames V. Foster, 42 N. H. 381. So in Maryland, Michigan, and Iowa, in respect of her separate property. Md. Laws, 1867, c. 223 ; Tillman v. Shackleton, 15 Mich. 447; Iowa R. S. c. 101. In New York, by contracts in respect of her separate property or trade. N. Y. Stat. 1860, March 20; Barton v. Beer, 35 Barb. 178; Coster v. Isaacs, 1 Rob. N. Y. 176. Under Stat. 1848, such contracts must expressly refer thereto. Coakley v. Chamberlain, 1 Sweeny, 676. In Wisconsin, on contracts necessary for enjoyment of her separate property. Conway v. Smith, 13 Wise. 128; Leonard v. Rogan, 20 id. 540. In Georgia and South Carolina, in respect to her sole trade. Waters v. Bean, 15 Ga. 358. And in Alabama and Mississippi, by contracts for necessaries for the household. Ala. Code, § 1987; Miss. Rev. Code, 1857, o. 40. » Vane v. Minshall, 1 Lev. 25; Anon., 6 Mod. 239. By statute in Penn. a husband is not liable for the antenuptial debts of his wife, and if 116 CONTRACTING PARTIES. [CHAP. IV. woman was not incompetent to take a lease, nor was the express assent of her husband necessary for that purpose, for the estate vested till he dissented.^ Her husband was liable for the rent which accrued during her occupation ; but the landlord could have no personal remedies therefor against her, either separately or jointly with her husband.^ And it made no difference that she was at the time living separate and apart from her husband ; or that she had eloped, and was living in a state of adultery ; or even that she was separated from her husband by a decree of divorce a mensa et thoro ; for nothing short of a divorce a vinculo matrimonii would restore her ability to contract.^ Yet if her husband was a non- resident alien ; * or became civilly dead, or was imprisoned for life, or for a term of years, — her disability was suspended during such periods, and her capacity to contract and assume the responsibilities of a lessee was restored.^ § 106. May Contract as to Separate Property. — But no incapacity to contract existed in any case where such contract was necessary to the proper use and enjoyment of her sepa- rate property ; ® or where she had traded as a single woman, and obtained credit as such ; or had a competent maintenance secured to her by her husband, on which she was living, apart from him ; or was authorized by statute to carry on business he does not enjoy the benefits of an antenuptial lease accepted by her, it is held that he is not liable upon the lease as co-contractor, nor for the use and occupation of the premises. Biery v. Ziegler, 93 Pa. St. 367. 1 Swaine v. Holman, Hob. 204; Co. Lit. 3, a. She might avoid such a lease after her husband's decease. Vincent v. Buhler, 22 N. Y. 450. 2 Kotch V. Miles, 2 Conn. 638; Edwards v. Davis, 16 Johns. 281; Marshall v. Rutton, 8 T. K. 545; Fowler v. Shearer, 7 Mass. 14 ; Albany Ins. Co. V. Bay, 4 jCf. Y. 9. But see, contra, Lawrence v. Heister, 8 Har. & J. 371 ; Sumner v. Conant, 10 Vt. 1. 8 Marshall v. Button, supra; Lean v. Shutz, 2 W. Bl. 1195; Hyde v. Price, 3 Ves. 443j Lewis v. Lee, 3 B. & C. 291 ; Fairthorne v. Blaquire, 6 M. & S. 73; Rawlins v. Vandyke, 3 Esp. 250. « Gregory v. Paul, 15 Mass. 31; Abbot o. Bayley, 6 Pick. 89; De Gaillon v. L'Aigle, 1 B. & P. 357. 6 Jb. ; Hatchett v. Baddeley, 2 W. Bl. 1079. * Todd V. Lee, 15 Wise. 865; Khea v. Kenner, 1 Pet. 105; Chauviere v. Fleige, 6 La. Ann. 563 ; Newbiggin v. Pillans, 2 Bay, 162. SEC. lU.] MAEEIBD WOMEN. 117 as if she were a single woinan.^ And she might, and still may, assume any responsibility she thinks proper on the credit of her separate property. But in such cases the contract must have direct reference to her separate estate, and can only be enforced by an appropriate proceeding in equity .^ It must appear also that, when making the contract, she intended to charge her separate estate therewith ; or that the considera- tion obtained thereby was directly beneficial to that estate.^ § 107. Responsible on her Covenants and for Rent. — The passage of various legislative acts enabling a married woman to hold separate property, independently of the husband's control, has not abrogated the general rule of law which pre- vents her from binding herself personally for the payment of a debt. But it neither invalidates a lease, nor any of the conditions upon which it may have been granted to her. A landlord may always avail himself of the privilege of re-entry, as in other cases, if the rent is not paid, or a breach of condi- tion happens.* Nor do these enactments interfere with her privilege of charging her separate estate at law for the pay- ment of rent, in express terms, or by necessary implication when she makes her contract. What, in the absence of an express contract, shall be deemed sufficient evidence of her intention to charge her separate property, is a matter of some difficulty ; but it seems to be generally conceded as sufficient, if the debt appears to have been contracted for the immediate benefit of her estate, or for her personal benefit upon the credit of such estate.^ 1 Corbett V. Poelnitz, 1 T. R. 5; Baker v. Barney, 8 Johns. 72. 2 Wheaton v. Phillips, 12 N. J. Eq. 221; Willard v. Eastham, 15 Gray, 328; Aimes «. Foster, 42 N. H. 331 ; Armstrong v. Ross, 20 N. J. Eq. 109 ; Gage V. Gates, 62 Mo. 412. 8 Yale V. Dederer, 18 N. Y. 265; s. c. 22 id. 450; Kantrowitz v. Prather, 31 Ind. 62; Wood v. Sanchey, 3 Daly, 197; Miller ». Hastings, 36 Iowa, 163; Willard «. Eastham, supra. In Maryland, her estate is liable for all such debts as she, together with her husband, may expressly or by clear implication -charge thereon. Hall u. Ecclaston, 37 Md. 510. * Draper v. Stouvenal, 35 N. Y. 507. « Curtis V. Engle, 2 Sandf. Ch. 287; Nixon v. Hadley, 78 HI. 611; Story, Eq. § 1380 ; Jacques v. M. E. Church, 17 Johns. 549. In Missouri, 118 CONTEACTING PARTIES. [CHAP. IV. In most States it is held that where a married woman takes a lease for years, the term becomes her separate estate, that she may contract in reference thereto, even at the moment or in the act of acquiring it, as if she were a single woman ; and that the use and occupation of the premises by her also creates a charge upon such estate for the rent, on the ground that the charge grows out of the beneficial nature of the contract to her individually, and may be enforced against her separate estate as well as if directly charged thereon.^ SECTION IV. BY A TENANT FOB YEARS OR FOR LIFE. § 108. Tenant may underlet and enforce Covenants. — Not only has the owner of the soil a right to make leases, but his tenant, so long as his interest lasts, has also a right to under- let to any person he may think proper, without consulting the landlord; for, while his interest in the premises continues, he has the absolute disposition of it, unless some agreement subsists between him and the landlord, that limits his power to do so.^ And such derivative lessee may be compelled by his immediate landlord to pay rent aiid perform covenants, the making of a written contract by her is said to raise a presumption that she intends to bind her separate estate. Metr. Bk. v. Taylor, 62 Mo. 338. But see Willard v. Eastham, supra. 1 Vandevoort v. Gould, 36 N. Y. 689: Yale v. Dederer, supra; Taylor i;. Glenny, 22 How. Pr. 240 ; Prevost v. Lawrence, 51 N. Y. 219 ; Wester- velt V. Ackley, 62 id. 505; Piske v. Mcintosh, 101 Mass. 66. Thus an agreement for board and lodging for herself and her husband, though by parol, on a promise to pay therefor out of her separate property, bound that property. Moxon v. Scott, 55 N. Y. 247. No agreement will be implied between husband and wife that the former is the tenant of the latter, when they live as a common family on the land of the wife and the crops raised thereon by him belong to her. Stout v. Perry, 70 Ind. 501. 2 Jackson v. Harrison, 17 Johns. 66; Eten v. Luyster, 60 N. Y. 252; Shaw V. Farnsworth, 108 Mass. 357. A change of tenants of an insured building, without the consent of the insurance company, does not vitiate the policy. Gates v. Madison Ins. Co., 5 N. Y. 469. SEC. IV.] TENANT FOK YEAES OK FOB LIFE. 119 according to the terms agreed upon between them ; although he is not liable to the original lessor for the rent reserved on the first lease, since there is no such privity between him and the original lessor, as there is between a lessee and an assignee.^ § 109. Estate and Liabilities of Under-lessee. — An under- lease vests only a partial estate in the under-lessee, a re- version being left in the lessor, the duration of which is immaterial ; as it may be for a year, a day, or an hour. And if rent is reserved in the under-lease, it need not con- tain a power of distress, for such a power is incident to every demise at common law.^ But as no privity exists between an under-lessee and the original lessor, the covenants entered into between the latter and the original lessee, though they be covenants running with the land, as to pay rent, or repair, cannot affect the under-lessee personally .^ The land, how- ever, is not discharged by an under-lease, from the claims of the original lessor, who, notwithstanding the under-lease, may proceed to distrain or evict either tenant pr under-tenant if rent be in arrear, or a forfeiture shall have been incurred by his lessee.* But an assignment transfers the whole inter- est of the lessee to the assignee ; and the essence of the in- strument, as an assignment, so far as the original lessor or strictly reversionary rights are concerned, will not be de- stroyed by its reserving a rent to the assignor, with a power of re-entry for non-payment ; nor by its assuming, by the use of the word demise, or otherwise, the character of a lease.^ An assignee is personally liable to the lessor upon all cove- nants which run with the land ; the premises also remaining liable to a distress by the latter for rent.® 1 McFarlan v. Watson, 3 N. Y. 286; Jackson i;. Davis, 5 Cow. 129. See Marshall v. Lippman, 16 Hun, 110; Ritzier v. Eaether, 10 Daly, 286. 2 Co. Lit. 141, b; 142, a; Curtis v. Wheeler, 1 Mood. & M. 493. We have, of course, no reference to leases of land in those States where the right of distress is abolished. s Holford V. Hatch, 1 Doug. 183; Earl of Derby v. Taylor, 1 East, 502; Doe v. Byron, 1 C. B. 623-626; Robinson v. Lehman, 72 Ala. 401. * Amsby v. Woodward, 6 B. & C. 519. * Palmer v. Edwards, 1 Doug. 187, n.; Doe v. Bateman, 2 B. & A. 168. ^ Hicks V. Downing, 1 Ld. Ray. 99 ; Parmenter v. Webber, 8 Taunt. 593 ; Hume v. Hendrickson, 79 N. Y.^117. The sureties of the assignee 120 CONTRACTING PARTIES. [CHAP. IV. § 110. Liabilities of Mesne Lesseer. — A lessee, on granting an under-lease, cannot fully protect himself from the conse- quences of a breach by the under-lessee, of the covenants contained in the original lease, by merely taking from him covenants corresponding to those contained in that lease, but should take a covenant of indemnity against such breach.^ And a prudent under-lessee will also stipulate for the inser- tion of a clause to protect himself from paying rent till his lessor produces the superior landlord's receipt for the chief rent ; with a further provision, that, if such rent is not paid when due, the under-lessee may pay it to the superior land- lord in discharge of his own rent.* It is his duty also, when contracting for an under-lease, to inform himself of the cove- nants contained in the original lease ; for, if he enters and takes possession of the property, he will be bound by all such covenants as relate to the land.^ being liable to the landlord, may in turn look to the sureties of a second assignee who is in default, since the doctrine of subrogation does not depend upon privity. Bender v. George, 92 Pa, St. 36. 1 Penley v. Watts, 7 M. & W. 601; Walker v. Hatton, 10 M. & W. 249. Thus in Logan v. Hall, 4 C. B. 598, a lessee who had covenanted to insure, with a condition for re-entry on breach, demised to parties with a like covenant on their part: neither lessee nor sub- lessees insured, and the lessor re-entered and ousted the lessee. On suit by the lessee against the sub-lessees for the value of his reversion, the action was held not to lie, because he had taken no covenant of indemnity; and the similar covenant given to the lessee by the sub-lessees did not cover breaches committed by him. In Williams v. WiUiams, L. K. 9 C. P. 659, the lessee had made a general covenant to repair. He made a sub-lease with like covenants. Being notified by the lessor to repair, he, in turn, noti- fied the sub-lessee; but, being threatened with re-entry, himself repaired and sued the sub-lessee. It was held that, on the general covenant to repair, only injuries to the reversion were recoverable before the expira- tion of the lease. " Roe V. Harrison, 2 T. E. 425. In default of payment by an interme- diate tenant, and to save himself from a distress or ouster, he may pay his rent to the original landlord, and deduct the amount from the sum he owes to his landlord. Lageman v. Kloppenburg, 2 E. D. Smith, 126. 3 Coster V. Collinge, 3 Mylne & K. 283. A party who enters into an agreement for an under-lease, without inquiring into the covenants of the original lease, has constructive notice of all usual covenants in the original lease. Flight v. Barton, 3 id. 282. See Porter v. Drew, 5 C. P. D. 143. SEC. IV.] TENANT FOR YEAES OK FOE LIFE. 121 § 111. Duration of Under-lease limited. — How determined. — Under-lessee may distrain. — No tenant, however, can make an under-lease, which shall convey an interest exceeding his own in point of duration ; and the demise of a tenant from year to year, to hold from year to year, will operate only during the continuance of his own tenancy.^ But the interest of an under-lessee cannot be defeated by the mesne lessee's surrendering his estate in the premises to the lessor ;2 nor can the under-lessee's interest be determined by the original lessor's giving him a notice to quit. Such notice must be given either by the lessor to his lessee or by the mesne lessee to the under-lessee.^ A tenant from year to year, who under- lets from year to year, also acquires such a reversion as will entitle him to distrain for rent in arrear.* If a tenant for a term of years underlets part of the premises from year to year, and, at the expiration of the term^ agrees with the les- sor to hold on from month to month, in the absence of any new agreement between the tenant and undertenant, the old tenancy will continue between them.^ § 112. Leases for Life, how determined. — A lease, whether at will, from year to year, or for years, made by a tenant for his own life or that of another, unless authorized by an ex- press power, must terminate on the death of the lessor in one case, or of the cestui qui vie in the other ; for no man can confer on another a larger estate than he himself possesses.^ In New York, however, a tenant for life may, by virtue of a 1 Pike V. Eyre, 9 B. & C. 909; Oxley v. James, 13 M. & W. 209; Kelley v. Patterson, L. K. 9 C. P. 681. = Brown v. Butler, 5 Phil. 71; Adams v. Goddard, 48 Me. 212; Eten V. Luyster, 60 N. Y. 252; Allen v. Brown, 5 Lans. 280; Ritzier v. Raether, 10 Daly, 286; but see Lennen v. Lennen, 87 Ind. 130. 8 Co. Lit. 338, b; Doe ti. Pyke, 5 M. & S. 146; Torriano v. Young, 6 C. & P. 8; Piggott V. Stratton, 1 De G. F. & J. 33. « Pleasant v. Benson, 14 East, 234; Curtis v. Wheeler, 1 Mood. & M. 493; Oxley v. James, supra. 6 Pierse v. Sharr, 2 Mann. & R. 418. • Ex parte Smyth, 1 Swanst. 355; Symons v. Symons, 6 Madd. 207; Doe V. Butcher, 1 Doug. 50; Doe a. Archer, 1 B. & P. 531; Bowes v. E. Lond. Waterworks, 3 Madd. 375; Co. Lit. 47, b. 122 CONTKACTING PARTIES. [CHAP. IV. power granted to him by the owner of the fee, make leases, for not more than twenty-one years, to commence in posses- sion during his life.^ But the lease of a mere tenant at will is void ; having no certain interest to dispose of, the very act of letting to a stranger becomes a determination of his will. Neither can he surrender, any more than he can grant ; for to surrender would be to determine his wiU and relinquish his estate.^ § 113. Leases for Years by Tenants by the Curtesy, or in Dower. — As tenants for life cannot, unless by the aid of a statute, make leases to continue for a longer period than their own lives, it follows that, where a tenant by the curtesy or in dower makes a lease for years, it will be absolutely deter- mined by his or her death, and no acceptance of rent, by the heir or the reversioner, can confirm it. Their lessees holding over, unless recognized by the succeeding owner as tenants from year to year, are merely tenant s by sufferance .^ But if the remainder-man has e ncouraged an expe nditure by the les- see on im provemen ts, in confidence of his continuing tenant, or jTag_gvifPgrgrl bim t.fi ^go_to__ the expense of rebuilding , and does not, by his answer, deny that he had notice of the les- see's proceedings, he will be precluded from controverting 1 1 R. S. 733, § 87. This power is not assignable as a separate inter- est, but is annexed to the estate, and will pass, unless specially excepted, by a conveyance of such estate. If so excepted, it is extinguished. It may also be released by the tenant to any person entitled to an expectant estate in the lands, and will be thereby extinguished. Ih. §§ 88, 89. A power given to a devisee for life, to lease for a life or lives, or for a term exceeding twenty-one years, is wholly void; and cannot be sustained on the supposition that it wiU be executed by making leases for not more than twenty-one years; especially where such execution would render the life-estate worthless. Root v. Stuyvesant, 18 Wend. 257, 315. ^ Moss V. Gallimore, Doug. 288; Sweeper v. Randal, Cro. El. 156; Birch V. Wright, 1 T. R. 382; Clark v. Wheelock, 99 Mass. 14. It is held, in Missouri, that the lease of a tenant at will is good as between himself and his lessee, but that, on the determination of the former estate, the tenant's lessee becomes the tenant at suflerance of the original landlord. Meier v. Thiemann, 15 Mo. App. 307. « Co. Lit. 47, b; Rowe v. Huntington, Vaugh. 80, 81; Miller v. Man- waring, Cro. Car. 397; Coakley u. Chamberlain, 1 Sweeny, 675. SEC. v.] JOINT TENANTS AND TENANTS IN COMMON. 123 such a lease.^ A subsequent acceptance of rent, wi th an ac- kn owledgment of a ten ancy, may also amount to a new de- m ise by t he remainder-maja . the lessee being a mere t enant at s ufferance in the inter val.^ But, where the remainder-man or reversioner joins with the tenant for life in making a lease, it is good ; and is considered, during the life of the tenant for life, as his lease and the confirmation of the remainder-man or reversioner ; and, after the death of the tenant for life, it will be taken to be the lease of the remainder-man or rever- sioner, and the confirmation of the tenant for life.^ It has been determined, however, that a lease executed by a tenant for life, in which the reversioner, who was then under age, was named a party, but did not execute, was void on the death of the tenant for life ; and that a subsequent execution of it by the reversioner would not make it good.* SECTION V. BT JOINT TENANTS AND TENANTS IN COMMON. § 114. Of One, passes undivided Interest. — Survivorship. — Partners. — The general rule, with respect to property held by joint tenants or by tenants in common, is, that neither can transfer anything more than his undivided interest ; but either of them may grant leases of that interest, for life, for years, or at will ; or the several parties in interest may join and con- vey the entirety.^ If one joint tenant makes a lease of his 1 Stiles ». Cowper, 3 Atk. 692 ; Jackson v. Cator, 5 Ves. 688 ; Dann v. Spurrier, 7 id. 231 ; Pilling v. Armitage, 12 id. 78-85. But, though the remainder-man acts as agent of the life-tenant in letting, he is not estopped to recover the premises from the lessee on decease of the life- tenant during the. term. Page v. Wright, 14 Allen, 182. 2 Doe V. Watts, 7 T. R. 88; Doe v. Morse, 1 B. & Ad. 365. ' Treport's Case, 6 Co. 14, b; 2 Prest. Conv. 141. * Ludford V. Barber, 1 T. R. 86. 8 Anderson v. Tompkins, 1 Brock. C. C. 456-463; Putnam v. Wise, 1 Hill, 234; Cunningham v. Pattee, 99 Mass. 248. But, if one co-tenant lets a specific part, the lease is still good inter partes ; but invalid as to 124 CONTEACTING PARTIES. [CHAP. IV. moiety for years, and dies before the lessee's entry, the lease will bind the survivor, and the lessee will retain his interest in the moiety demised until his term expires. And if one joint tenant makes a lease to commence after his death, his co-tenant, if he survives, will be bound by it.^ So one or more joint tenants may demise his or their portion to another joint tenant, and thereby create the relation of landlord and tenant between them, with a right to distrain in respect of rent in arrear.^ We should observe also that the rules appli- cable to partnership property do not apply to real estate ; and hence, when real estate is held by partners in trade, for the purposes of their business, they hold as tenants in common, and not as joint tenants.^ those who do not join. lb. So if the whole is demised by one co-tenant. Taintor v. Cole, 120 Mass. 162; Dewitt v. Harvey, 4 Gray, 486; Austin V. Ahearne, 61 N. Y. 6. So one partner's demise of the firm's real estate, even if in the name of the firm, passes only his individual interest. Dillon V. Brown, 11 Gray, 179. Heirs take as tenants in common. 1 N. Y. E. S. 753, § 17. So devisees, unless it is otherwise declared. Executors or trustees take as joint tenants. Tb. 727, § 44. Otherwise of legatees. Putnam v. Putnam, 4 Bradf . 308. In Massachusetts all con- veyances or devises are in common, unless expressly provided otherwise, or when made to trustees or mortgagees. Pub. Stats, ch. 120, §§ 15, 16. 1 Grute V. Locroft, Gro. El. 287; Whitlock v. Horton, Cro. Jac. 91. 2 Cowper V. Fletcher, 6 B. & S. 464; Evans v. English, 61 Ala. 416. As to the lease of one tenant in common to his co-tenant of his undivided interest, see Dresser v. Dresser, 40 Barb. 300. * Coles V. Coles, 15 Johns. 159 ; Balmain v. Shore, 9 Ves. 500 ; Thorn- ton V. Dixon, 3 Bro. C. C. 199; Dillon <■. Brown, supra. Thus a lease by and to a firm should be declared on in the names of the individual members : Kohrburg v. Reed, 57 Mo. 392 ; and when a lease to one part- ner for the firm expires at the same time as the partnership, he may take a renewal in his own name: Mitchell v. Head, 61 Barb. 310. So a firm which had contracted to take a lease may do so, though the firm is dissolved. Palmer v. Sawyer, 114 Mass. 19. But, where the term con- tinued after the dissolution, those of the partners who occupied or let the premises were held accountable for the improved value : Eaton's Appeal, 66 Pa. St. 483 ; and a right of renewal is exercised by the surviving part- ner as such: Betts v. June, 51 N. Y. 274. And it is held that incoming partners of the lessee who hold over, are bound by the terms of the lease in like manner with the lessee. Wilgus v. Lewis, 8 Mo. App. 836. There may, however, be a partnership in the use of land, for farming or mining, where the law-merchant will apply and govern to the same extent as in SEC. V.J JOINT TENANTS AND TENANTS IN COMMON. 125 § 115. Effect of lease by. — Actions on. — If parceners, or joint tenants, join in a lease, there can be but one lease, for they have but one freehold ; but if tenants in common join in a lease, it amounts to several leases of their respective in- terests.^ One joint tenant, or tenant in common, may make a lease of his part to his companion ; and this gives him a right to take the whole profits ; when before he had but a right to the moiety thereof; and lie may contract with his companion for that purpose as well as with a stranger.^ And where tenants in common join in a lease, reserving an entire rent, they may join in enforcing payment of~it; but if there be a separate reservation to each they must each bring a sepa- rate action.3 In such case, however, the survivor may sue ordinary mercantile transactions. But in buying and selling the land itself, on the joint account of several, the land retains the character of real estate, and each associate contracts for himself: Patterson v. Brews- ter, i Edw. 352 ; Dyer v. Clark, .5 Met. 562 ; Buchan v. Sumner, 2 Barb. Ch. 199; except so far as partnership claims require it to be treated as personalty. lb. In England it is regarded as converted out and out. Darby v. Darby, 3 Drevrry, 495. To what extent there may be a partner- ship for buying and selling real estate merely, see Sage u. Sherman, 2 N. Y. 417; Fall River Co. v. Borden, 10 Cush. 485. To constitute real estate partnership property, it must not only be purchased with the funds of the firm, but must be used for partnership purposes. Cox V. McBurney, 2 Sandf. 561; and see Otis v. Sill, 8 Barb. 102; Anderson V. Lemon, 8 N. Y. 236. 1 2 Rol. Abr. 64; Shep. Touch. 268, n. 3. In Ohio it is said, tenants in common may make a joint lease. Massie v. Long, 2 Ohio, 287, 301. ^ Cro. Jac. 83-611; Keay v. Goodwin, 16 Mass. 1. The relation of landlord and tenant is thereby created, with a right to distrain for rent in arrear. Cowper v. Fletcher, 6 B. & S. 464. If a tenant in common hires of his co-tenant, and for a term occupies exclusively, he is not bound, at the expiration of the term, to abandon possession, nor to make partition and occupy only one half, even though his co-tenant has given him notice to quit; it is sufficient if he offers possession of half, and does no act to prevent his co-tenant from occupying with him. Mumford V. Brown, 1 Wend. 52; Campbell v. Campbell, 21 Mich. 485. But one tenant in common does not by occupying the whole estate, if he does not exclude his co-ten int, become liable to the latter in use and occupation. Badger v. Holmes, 6 Gray, 118; Austin v. Ahearne, 61 N. Y. 6, 14; Israel v. Israel, 30 Md. 120; Hutton v. Powers, 38 Mo. 353; Graham V. Pierce, 19 Gratt. 28; Barrell v. Barrell, 25 N. J. Eq. 573. " Powis V. Smith, 5 B. & A. 850. One joint tenant may receive the 126 CONTKACTING PARTIES. [CHAP. IV. for the whole rent, althougli the reservation is to the lessors according to their respective interests.^ If tenants in common make several demises of their undivided shares, either by dis- tinct instruments or by the same instrument, they must sever in an action ; for a joint action can only be maintained on a joint demise.^ But if the action be upon a covenant, and the cause of action be one and entire, tenants in common, being covenantees, must join, although the covenant be with them, and each and every of them.^ If the cause of action be sepa- rate and distinct, tenants in common must sue severally, though the covenant be joint in terms ; but the several inter- est and ground of action must distinctly appear, as in the case of covenants to pay separate rents, to tenants in common, upon demises by them.* § 116. Form of Lease by Tenants in Common. — Where ten- ants in common concur in granting a lease, each of them usually demises, according to his particular estate and interest; the instrument containing one grant of the whole estate, with a separate render of rent to each of the lessors, and a separate covenant for the payment of rent to each. But as, under a lease in this form, the lessors must bring separate actions for their respective portions of the rent, it is better that the demise should be joint, with one render of the entire whole rent, and give a suflBcient discharge for it. Robinson v. Hoffman, 4 Bing. 562. Where one such tenant receives the rents and profits, although the others may have an equitable lien on his undivided portion of the premises therefor, yet, upon his death, they are primarily charge- able upon his personal estate. Hannan v. Osborn, 4 Paige, 336. 1 Wallace v. McLaren, 1 Mann. & R. 516. ' Powis V. Smith, 5 B. & A. 851. Tenants in common may maintain a joint action for rent due, under a sealed lease, of the joint estate, all the covenants in which are with them jointly; although, by an agreement annexed to the lease, and made part thereof, it is stipulated that half of the rent shall be paid to each. Wall v. Hinds, 4 Gray, 256. s Slingby's Case, 5 Co. 18, b; Withers v. Bii-cham, 3 B. & C. 254; Dorsett v. Gray, 98 Ind. 273. * Servante b. James, 10 B. & C. 410. One tenant in common may maintain an action for his share of the rents and profits against a third person, who has collected the whole. Smith v. Marsh, 2 Dane, Ab. 228, 449. SEC. v.] JOINT TENANTS AND TENANTS IN COMMON. 127 rent to the lessors simply, which will not prevent their taking it as tenants in common, the rent following the reversion ; and, in this case, they may join in an action of covenant or sue separately in debt, at their option. § 117. Partners as Parties to Leases. — Deed of one binds the others. — Mercantile law, as we have said, has somewhat modi- fied the doctrine above stated, when applied to copartnership interests. By the strict rules of the common law, one partner could not bind another to a lease, or by any other instrument under seal, unless he had previous express authority for the purpose ; ^ and such is still the law in Tennessee.^ But this doctrine has been essentially relaxed in the more commercial States ; where it is held that one partner, if in the presence of his copartners, may execute a deed for them, in a transaction in which they are all concerned.^ An absent partner may also be bound by a deed, executed on behalf of the firm by his copartner, provided there be either a previous parol au- thority, or a subsequent parol adoption of the act.* And it has even been held that the implied authority from the char- acter or scope of the partnership business will enable a part- ner to bind the firm by any instrument under seal which that business requires.^ 1 Harrison v. Jackson, 7 T. E. 207 ; Dillon v. Brown, 11 Gray, 179. " Turbeville v. Ryan, 1 Humph. 113. 8 Mills V. Barber, 4 Day, 428; Gerard v. Basse, 1 Dall. 119; Hart V. Withers, 1 Penn. 285; Grazebrook v. McCreedie, 9 Wend. 439. The fact that a lease for co-partnership purposes is made to one member of the firm, does not authorize him to take a renewal of it in his own name and for his own benefit, and such a renewal will enure to the benefit of the firm. Mitchell v. Kead, 84 N. Y. 556. * Skinner v. Dayton, 19 Johns. 513. So, on the other hand, a lease by one partner to the firm ends with the firm: Johnson v. Hartshorn, 52 N. Y. 173; or if the term continues, or a right of renewal exists, this is an asset of the partnership: Eaton's Appeal, 66 Pa. St. 483; Betts V. June, 51 N. Y. 274. 8 Gram v. Seton, 1 Hall, 262. The authority of one partner to bind the firm may be shown by circumstances. Butler v. Stocking, 8 N. Y. 408. 128 CONTKACTING PARTIES. [CHAP. IV. SECTION VI. BY MORTGAGOR AND MORTGAGEE. § 118. By Mortgagor in Possession. — Good except as against Mortgagee. — It may happen that the lessor, at the time of making a lease, has no such interest in the premises as to entitle him to contract absolutely for the enjoyment of ill. Thus a mortgagor, after the date of the mortgage, unless he has reserved possession to himself until breach, and in that case after breach by default in payment of the mortgage-money, has a mere equitable interest in the land, and not an estate which can be recognized in a court of law ; for, at common law, a lease created by a mortgagor subsequent to the mortgage, or when made by a cestui que trust, cannot be set up in a court of law against the trustee or mortgagee.^ In this respect, mort- gagors are in the same situation as strangers who have no interest in the property they undertake to lease, although they may be in possession. Such leases, however, are good as be- tween the parties, by virtue of the contract ; ^ for as against all persons, except the mortgagee and those claiming under him, the mortgagor is to be considered owner of the land so long as he remains in possession, with the power of leasing or con- veying it, subject to the incumbrance.^ But a mortgagee, 1 AVebb V. Kussell, .3 T. K. 393; Keith v. Swan, 11 Mass. 216; Roe V. Lowe, 1 H. Bl. 447; Howell v. Sobenck, 4 Zab. 89. 2 Thorn v. Burton, 1 Keb. 24. 8 Willington v. Gale, 7 Mass. 138; Collins v. Torry, 7 Johns. 278; Blaney v. Bearce, 2 Greenl. 132. As between a mortgagor and mortga- gee, or a purchaser under a foreclosure of the mortgage, the owner of the equity of redemption is entitled to the rents which become due down to the period when the purchaser under the decree of sale becomes en- titled to possession ; and this right accrues upon the production to the occupant of the premises of the master's or sheriff's deed. Clason v. Corley, 5 Sandf. 447. So where the conveyance was absolute in form, with agreement to reconvey on repayment of the purchase-money and interest, grantor to retain possession of the premises during the term, it was held that, during the term, the grantor only could maintain action for rent against the tenants of the property. Goodwin v. Hudson, 60 Ind. 117. SEC. VI.] MOBTGAGOK AND MORTGAGEE. 129 although in possession, cannot make a lease that will bind the mortgagor when he comes in to redeem.^ § 119. Mutual Rights of Mortgagee and Tenant under prior Lease. — A tenant under a lease made prior to a mortgage can- not be dispossessed by the mortgagee, unless by virtue of a proviso for re-entry, upon the non-payment of rent or the non- performance of covenants ; for the mortgagee, as assignee of the reversion, has no higher rights than the mortgagor .^ But, to secure to himself the benefit of the rent and covenants, a mort- gagee should give the lessee notice of the mortgage, and require payment of the rent to be made to himself ; and at common law he is entitled as well to rent which has fallen due since the mortgage was made, and remains unpaid to the mortgagor, as to that which accrued due after notice ; yet, until notice, the lessee is justified in paying rent to the mortgagor." § 120. Under subsequent Lease, Tenant without Right at Com- mon Law. — The rights of a tenant, under a lease executed after a mortgage, stand upon different ground. A mortgagor ^ Hungerford v. Clay, 9 Mod. 1. Where a mortgagee becomes lessee of the mortgaged premises, and covenants to pay rent to the mortgagor until condition broken, he continues bound by his covenant, and cannot set up his mortgage against the lease. But if a lessee, after making a covenant to pay rent, takes a mortgage of the leased premises, he is released from his covenant, until the condition of the mortgage is per- formed, or the estate is redeemed. Newall v. Wright, 3 Mass. 138, 151. And see Scott ». Fritz, 51 Pa. St. 418. ^ Moss e. Gallimore, Doug. 279 ; Rogers v. Humphreys, 4 Ad. & E. 299. * Moss V. Gallimore, supra; King v. Housatonic R. R. Co., 45 Conn. 226 ; see also Trent v. Hunt, 9 Exch. 14. The rents in arrear when the mortgage is executed belong to the mortgagor. King v. Housatonic R. R. Co., supra. The mortgagor, if allowed to remain in, must distrain in the mortgagee's name. Where a tenant paid rent to his landlord (a mortgagor) before it was due, and afterwards when it became due was notified by the mortgagee to pay rent to him, it was held that his pre- vious payment to the mortgagor was no protection for him against his liability to pay to the mortgagee. De Nicholls v. Saunders, L. R. 5 C. P. 589. So Cook V. Guerra, L. R. 7 C. P. 132; for lessee's payment to lessor is on the condition that the latter continues to be landlord. But see Stone v. Patterson, 19 Pick. 476, infra. voij. I. — 9 130 CONTRACTING PARTIES. [CHAP. IV. in possession, according to English law, is regarded as a strict tenant at will to the mortgagee, who, being the legal owner, is entitled at law to the immediate possession, and to the receipt of rent if the land is in lease ; and he may enter upon the mortgagor at any time, even before default in payment of the mortgage-money, and eject him.^ The mortgagor, con- sequently, has no power of making leases that will bind a mortgagee ; and when he collects rent, he is only to be con- sidered as receiving it, in order to pay the interest which accrues on the mortgage, by an implied authority from the mortgagee, until the latter determines his will as to posses- sion. Hence, tenants under leases made subsequent to a mortgage may be treated as trespassers by the mortgagee, and ejected without notice.^ By giving notice to such a ten- ant to pay rent to him, a mortgagee does not make him his tenant ; and no such result will be produced, unless the ten- ant attorns to him for the express purpose of creating a new tenancy between himself and the mortgagee.^ If the mort- 1 Doe V. Maisey, 8 B. &. C. 767; Doe v. Giles, 5 Bing. 421, Cro. Jac. 659. But if the mortgagor attorns to the mortgagee, he will become his tenant on the terms mutually agreed or implied. Morton v. Woods, 9 B. & S. 632 ; West v. Fritche, 3 Exoh. 216 ; Jolly v. Arbuthnot, 4 De G. & J. 224; Kearsley v. Phillips, 11 Q. B. D. 621. But not if the attorn- ment be a mere device to secure the mortgagee, as by giving him a right of distraint on the mortgagor's goods as against the mortgagor's creditors. Jackson ex parte, Bowes in re, 14 Ch. D. 725. A tenant who holds a mortgage on the demised premises, the money secured by which falls due on the day his lease expires, may continue to hold the premises under the mortgage — the mortgage-money not being paid — without first surrend- ering the premises to his landlord, although in the lease he has covenanted to yield up and surrender possession of the premises at the expiration of his term. Shields v. Lozear, 5 Vroom, 496. 2 Keech v. Hall, 1 Doug. 21 ; Rogers v. Humphreys, 4 Ad. & E. 299 ; Comer v. Sheehan, 74 Ala. 452. So in Maryland, although the mort- gage was defective for want of an " affidavit of consideration" the lessee having notice of the mortgage. Russum v. Wanser, 53 Md. 92. ' Evans y. Elliott, 9 Ad. & E. 342. Accordingly where such notice was coupled with authority from the mortgagor to his tenant to pay mortgagee, and this was withdrawn after several payments had been made to mortgagee, it was held, the tenant could not deny his tenancy to mortgagor : Wheeler v. Branscombe, 5 Q. B. 873 ; but if the mort- gagee had entered for condition broken, payment of rent by tenant would SEC. VI.] MOKTGAGOE AND MOETGAGEB. 131 gagee accepts such a person as his tenant, he will, after ac- ceptance, become tenant to the mortgagee, on such terms as are agreed upon, although he may be in possession under a lease for years from the mortgagor.^ § 121. Like Rules in the'lTnited States. — The COmmon-law doctrine on this subject prevails extensively in the United States ; ^ and on a lease made prior to the mortgage, as the legal title vests at once by virtue of the mortgage,^ the mortgagee as assignee of the reversion is generally entitled, without any attornment, to collect rent from the date of the mortgage, or if possession is reserved until breach, then upon a default, and after giving notice of his claim and requiring have made him mortgagee's tenant : Doe v. Barton, 11 Ad. & E. 307, 315. In Wilton v. Dunn, 17 Q. B. 294 ; Hickman v. Machin, 4 H. & N. 716, the mere notice and demand by mortgagee were held insufficient to pro- tect the tenant from paying the mortgagor, if he had not already paid the mortgagee ; and the doctrine of Pope v. Biggs, 9 B. & C. 257, and Waddilove v. Barnett, 2 Bing. (N. C.) 538, that rent in arrear, at the time of such notice, could be safely paid to the mortgagee, was doubted ; and the dictum that such notice of itself makes the lessee mortgagee's tenant, or gives a right to rent subsequent thereto, was denied and overruled in Evans v. Elliott, supra. So in Bartlett v. Hitchcock, 10 Bradw. (111.) 87, it was held that a single act of the mortgagee in demanding rent would not make the lessee a tenant, when such demand had not been acted on, so as to enable the mortgagee to recover rent eo nomine. See Drakford v. Turk, 75 Ala. 339. 1 Doe v. Bucknell, 8 C. & P. 566. It is for the jury to say if the pur- chaser at the foreclosure sale has adopted the terms of the old tenancy to the mortgagor. And though the mortgagee may have so done, this is not binding on the purchaser. Smith v. Eggington, L. K. 9 C. P. 145. Here the mortgagees after giving notice to quit to the mortgagor's tenant, accompanied by a caveat that they thereby recognized no right to such notice, accepted rent up to the expiration thereof. This was held to bind them, but not the purchaser ; and the fact that the latter also negotiated with the tenant about a lease, and meanwhile allowed him to remain in and supplied him with steam power, was held not conclusive evidence of a new tenancy. 2 Rockwell V. Bradley, 2 Conn. 1 ; Blaney v. Bearce, 2 Greenl. 132 ; Erskine v. Townsend,2 Mass. 493 ; Odiorne v. Maxey, 16 id. 39 ; Simpson ». Ammons, 1 Binn. 175 ; McCall v. Lenox, 9 S. & R. 302. But see Jackson v. Green, 4 Johns. 186. * Blaney v. Bearce, supra ; Erskine v. Townsend, supra. 132 CONTRACTING PARTIES. [CHAP. IV. pavment to himself ; subject only to the qualification, that the rent has not already been, in good faith, paid to the mort- gagor.i But as no relation of landlord and tenant exists between a mortgagee and the mortgagor,^ or between the mortgagee and a tenant of the mortgagor by a demise sub- sequent to the mortgage, the tenant may be ejected like a mortgagor without notice to quit.^ On entry or demand by tlie mortgagee, the tenant may attorn and pay the after- accruing rent to him,* upon a new tenancy, and is not liable upon the old lease ; ^ and in those States where the action 1 Kimball v. Lockword, 6 R. I. 139 ; Russell v. Allen, 2 Allen, 42 ; Mansony v. Bank, 4 Ala. 746 ; Baldwin v. Walker, 21 Conn. 168, 182 ; Reed v. Bartlett, 9 Bradw. (111.) 267. Also to all rent then due, accrued since the mortgage, though mortgagee has not entered. Mirick v. Hoppin, 118 Mass. 582. And such rent will not be apportioned under a statute providing for apportionment in cases where the lessor's estate is contin- gent, this provision being held not to contemplate the case where the lessor's estate is terminated by reason of his own neglect. Adams v. Bigelow, 128 Mass. 365. A note for rent in advance,' given to the mort- gagor, is liable to be defeated, even in the hands of an indorsee, by proof of notice by purchaser at foreclosure sale and payment to him. Aldrife V. Ribeyre, 52 Ind. 182. = 4 Kent, Com. 149 ; Doe v. Mace, 7 Blackf. 2, 4 ; Bank v. Hupp, 10 Gratt. 23, 42, 49. But the relation may be created by the mortgagor's express agreement to pay rent to the mortgagee after condition broken. See Murray v. Riley, 140 Mass. 490. * Doe V. Mace, 7 Blackf. 2 ; Rockwell v. Bradley, 2 Conn. 1 ; Babcook V. Kennedy, 1 Vt. 457 ; Steadman v. Gresset, 18 id, 346. If the mort- gaged estate is sold, the lessee, if he has a covenant for quiet enjoyment, is entitled to a portion of the surplus proportionate to his unexpired term ; Clarkson v. Skidmore, 46 N. Y. 297 ; aliter if he has no such covenant : Burr V. Stenton, 43 id. 462. * Baldwin v. Walker, 21 Conn. 168 ; Welch v. Adams, 1 Mete. 494; Mass. H. L. I. Co. v. Wilson, 10 id. 126 ; Cook v. Johnson, 121 Mass. 326 ; Hills v. Jordan, 30 Me. 867 ; Cavis v. McClary, 5 N. H. 529. Though in New Jersey, only after actual entry. Sanderson v. Price, 1 Zab. 637; Price v. Smith, 1 Green Ch. 516. And if he has paid in advance he is not liable for the same rent to a purchaser who bought the land without notice of such payment. Stone v. Patterson, 19 Pick. 476. See Lucier v. Marsales, 133 Mass. 454. But he is not bound to attorn, and may treat the foreclosure as an eviction. Simers v. Saltus, 3 Dehio, 214. 5 Gartside v. Outley, 58 LI. 210. But the terms of the old lease may be adopted by express agreement or clear implication. lb. The doctrine of Pope V. Biggs, supra, however, seems to have been followed in one or SEC. VI.] MORTGAGOR AND MORTGAGEE. 133 of ejectment prevails, all rent accrued after the demise laid therein can be recovered by the mortgagee.-' § 122. Mortgagee's Right limited in certain States. — But the common-law rules of mortgage have been modified in many of the States, and the right of the mortgagee to collect rent somewhat limited ; thus, in Vermont, he has no legal estate in the land, nor, consequently, any right of action until condition broken.^ In Pennsylvania, Michigan, Georgia, and South Carolina, a mortgage is only security for a debt, and no estate vests until after foreclosure and sale ; ^ and in California, no estate at all passes by the mortgage until two cases : Hutchinson v. Bearing, 20 Ala. 798 ; Clark r. Abbott, 1 Md. Ch. 474 ; which relied on that case as the settled law of England, and seem unaware that it had been distinctly overruled. In Henshaw v. Wells, 9 Humph. 568, it is even held that rent actually paid the mortgagor can be recovered back. But this is not contended ev6n in Pope v. Biggs, and seems mitenable on any sound principle. In Duff v. Wilson, 69 Pa. St. 316, a purchaser at the foreclosure sale was held to stand on the same footing as a purchaser at a sale on execution, and entitled as assignee of the reversion. And in Austin v. Ahearne, 61 K". Y. 6, 18-21, the doc- trine of Pope V. Biggs is referred to with apparent approval, and the right of the mortgagee, after notice to or attornment by the lessee, is put on the same footing as that of a voluntary grantee of the lessor, and all distinc- tion between leases prior and subsequent to the mortgage disregarded. But these decisions lose sight of the fact that the mortgagee's assertion of title is an eviction, and the lease is thereby at an end, and the tenant in attorning to the mortgagee acknowledges his title, but does not revive the lease, unless this is expressly agreed, which is in fact creating a new lease. The doctrine of the text, and of the later English cases, is, moreover, followed in Kimball v. Rowland, 6 R. I. 138. And see Cook V. Johnson, supra, and Corbett v. Plowden, 25 Ch. D. 678. 1 Babcock v. Kennedy, supra ; Bank v. Hupp, 10 Gratt. 23, 29. And see Turner v. Coal Co., 5 Exch. 932 ; Litchfield v. Ready, id. 939. 2 Babcock V. Kennedy, 1 Vt. 457; Cheever v. Rut. & B. R. R., 39 id. 653 ; query in Alabama, see Smith v. Taylor, 9 Ala. 633. 8 Myers v. White, 1 Rawle, 353; Ladue v. Detroit, 13 Mich. 394; Rag- land V. Justices, 10 Ga. 65; State v. Laval, 4 McCord, 336. In Iowa, Code, § 2013, the tenant's attornment to the mortgagee is void unless made " after the mortgage has been forfeited," which words are taken to intend after the mortgage has been foreclosed and the period of redemp- tion expired; and the mortgagor is entitled to possession during the year allowed for redemption. Mills v. Hamilton, 49 Iowa, 105. 134 CONTEACTING PARTIES. [CHAP. IV. after foreclosure.^ The common-law rules, however, apply in the New England States, and in Indiana, North. Carolina,^ Mississippi, and Minnesota.^ § 123. In New York. — Mortgagee's equitable Remedy. — In the State of New York, the Revised Statutes have abolished the action of ejectment by a mortgagee, thereby compelling him to rely upon a special contract for possession, if he expects it, denying his right to the rents and profits of the estate so long as the land is a sufficient security for the debt, and turning him over to the courts of equity for a foreclosure and sale as his chief remedy. The mortgagee is only entitled to have a receiver of the rents and profits of the mortgaged premises appointed, after it shall satisfactorily appear that the property is not of sufficient value to satisfy the mortgage debt and costs, and that the mortgagor or other person, who is personally liable for the debt, is irresponsible or unable to pay the expected deficiency. And where under such circum- stances the defendant, in a suit to foreclose a mortgage, is in possession by his tenant, who is not a party to the suit, the possession of the tenant will not be disturbed by the appoint- ment of a receiver of rents ; but he may be ordered to attorn to the receiver and pay rent to him.* 1 Bullock V. Rogers, 9 Cal. 123; Polhemus v. Trainer, 30 id. 685; and see 2 Washb. Real Prop. (3d ed.) 99-109. 2 But see Dunn v. Tillery, 79 N. C. 497. * But the mortgagee has no title to rent, so long as he is restricted from possession by stipulation in the mortgage : Smith v. Taylor, 9 Ala. 633 ; so if mortgagor holds over : Mayo v. Fletcher, 14 Pick. 525. In Mis- souri the mortgagee cannot, before condition broken, recover rent due from the mortgagor's tenant, which accrued under a lease made subse- quent to the mortgage. And if the mortgagee is entitled to possession for condition broken he must enforce his rights as provided in the mort- gage, and give the tenant notice before he can recover rent. White v. Wear, 4 Mo. App. 341. * Sea Ins. Co. v. Stebbins, 8 Paige, 565; Shotwell v. Smith, 3 Edw. 588. After such payment the mortgagor has no authority to accept a surrender, or to execute a new lease of the premises, during the continu- ance of the receivership. Nealis v. Bussing, 9 Daly, 305. The owner of the equity of redemption is at law entitled to the rents and profits of the mortgaged premises until the purchaser under the decree of foreclosure SEC. VI.] MORTGAGOR AND MORTGAGEE. 135 § 124. In Massachusetts, Mortgagor in Possession entitled to Rents. — In Massachusetts, also, it is held that a mortgagor, so long as he remains in possession, or until actual entry by the mortgagee, may receive the rents and profits to his own use, and is not liable to account for them to the mortgagee.^ Nor is he liable even for such rent as may accrue between the time of the commencement of the action to foreclose, and the time of taking possession under an execution.'^ So, if a person demises an estate for a term of years, reserving rent, and afterwards mortgages the same estate to the lessee in fee, and the mortgagee refuses to pay rent, the rent is suspended, until the condition is performed or the estate redeemed. becomes entitled to the possession of the premises. If the accruing rent becomes payable between the day of sale and the time when the pur- chaser will be entitled to possession by the terms of the decree and the practice of the court, such rent belongs to the owner of the equity of re- demption, and not to the purchaser at the master's sale. But if the pro- ceeds of sale are insufficient, or are probably insufficient, to pay the amount due on the mortgage, and the mortgagor or other person who is personally liable for such deficiency is insolvent, the plaintiff is, at any time, entitled to a receiver to collect the rent, and have it applied to the payment of the deficiency. Astor v. Turner, 11 Paige, 436; Howell v. Kipley, 10 id. 43; Bank v. Hupp, supra. After the sale, a tenant in possession, who was made a party to the suit, is bound to attorn to the purchaser, notwithstanding he holds under an unexpired lease executed by the mortgagor prior to the mortgage; and, if he refuses, may be re- moved by a writ of assistance. And it is not material that the original lessee, from whom the lease came by assignment to the tenant in posses- sion, was not made a party to the foreclosure. Lovett v. German Ref . Church, 9 How. Pr. R. 220. 1 Boston Bank v. Reed, 8 Pick. 459 ; Gibson v. Farley, 16 Mass. 280. A mortgagee who took possession before foreclosure was required to account for the rents and profits received, or for a fair cash rent. Van Buren v. Olmstead, 5 Paige, 9. '^ Mayo V. Fletcher, 14 Pick. 525. And in a case arising in Massachu- setts, where the rent was payable in advance, and the mortgagee took possession, after condition broken, as he had a right to do by the statutes of that Commonwealth, upon the first day of the quarter in which the l-ent -was payable, the court held, that, inasmuch as the tenant had the whole of the day to make the payment in advance, and the mortgagee entered on that day and ousted him, the tenant had a sufficient ex- cuse for not paying the rent to the mortgagor. Smith v. Shepard, 15 Pick. 147. 136 CONTEACTING PARTIES. [CHAP. IV. During the suspension, the lessee will be accountable for the profits, as mortgagee, towards the discharge of the interest and principal of the debt ; and, if he voluntarily pays the rent, he will not afterwards be accountable, as mortgagee, for the profits during the same time.^ We may observe, also, that a lessee, or his assignee, may always, in order to protect his own interest, redeem a mortgage, covering the demised prem- ises, and given by the lessor, prior to the lease ; and it makes . no difference, if the leasehold premises consist of but part of the lands covered by the mortgage.^ § 125. Mortgagor and Mortgagee to join in Lease. — From the foregoing observations, it is obvious that a permanent lease of land which is under mortgage at the time of the execution of the lease can only be secured by the concurrence of both mortgagor and mortgagee, the former to demise and lease, the latter to ratify and confirm. Such a lease will oper- 1 Newall V. Wright, 3 Mass. 138; Pub. Sts. c. 181, § 23; and see San- ford V. Pierce, 126 Mass. 146. The purchaser at a mortgage foreclosure sale is not entitled to the rents accruing between the time of purchase and the delivery of the deed. Cheney v. Woodruff, 45 N. Y. 98. Where a lessor gave an order for value received to a lessee, which he accepted, to pay the accruing rent to a third person, and afterwards mortgaged the property; and the mortgagee bought it in under a foreclosure, with a full knowledge of the facts, — he was held to be estopped from claiming the rent so assigned. Abrams v. Sheehan, 40 Md. 446. If a tenant, with the assent of his landlord, pays interest upon a mortgage charged on the premises demised, it is equivalent to a payment of rent pro ianto. Dyer V. Bowley, 9 Moore, 196 ; 2 Bing. 94. Where a mortgagee becomes lessee of the mortgaged premises, and covenants to pay rent to the mortgagor until condition broken, he is bound by his covenant, and cannot set up his mortgage against the lease. But if a lessee, after making a covenant to pay rent, takes a mortgage of the leased premises, he is released from his covenant to pay rent, until the condition of the mortgage is performed, or the estate is redeemed. Newall v. Wright, supra. See Russell v. Allen, 2 Allen, 42. " Averill v. Taylor, 8 N. Y. 44. Upon the redemption, the redeeming party has a right to an assignment of the mortgage redeemed ; and, if it be recorded, a right to require the mortgagee to acknowledge the assignment. If the lessee entitled to redemption is not made a party to the foreclosure proceedings, a judgment therein is inconclusive as against him. Lockhart v. Ward, 45 Tex. 227. SEC. VII.] COBPORATIONS. 137 ate during the continuance of the mortgage as the demise of the one and the confirmation of the other ; but after the mortgage has been paid off, as the demise of the latter and the confirmation of the former.^ Where both concur in the grant, the covenants on the lessee's part should be entered into mth the mortgagee, with a view to their running with the land. If entered into with the mortgagor, they are merely covenants in gross, and so of no value to an assignee of the mortgage.2 It may be stated also that a mortgagor cannot enforce the specific performance of a contract to take a lease, without first redeeming the mortgage, or obtaining the mortgagee's concurrence in the lease ; though a party claiming under such a contract cannot compel the mortgagor to pay off the mortgage, in order to give effect to the lease.^ SECTION vn. BY CORPORATIONS. § 126. Aggregate, may Lease as natural Persons. — Every cor- poration aggregate* has, unless specially restrained by its charter or by statute, a common-law right to hold, enjoy, and transmit such property as may be necessary to enable it to answer the purposes of its creation ; ^ it may, consequently, 1 Doe V. Adams, 2 Cr. & J. 232. 2 Webb V. Russell, 3 T. R. 393, 679. Thus on a lease by mortgagor and mortgagee, reciting the mortgage and reserving rent, re-entry for non-payment thereof to the mortgagor, lessee is not estopped to deny mortgagor's title in an action of ejectment for breach of condition to pay rent, brought by the assignee of mortgagoi; and mortgagee. McAreavy V. Hannan, 13 Ir. C. L. 70. So Saunders v. Merryweather, 13 W. R. 814. 8 Costigan v. Hastier, 2 Sch. & L. 160. * A corporation aggregate is a collection of individuals united in one body, under such a grant of privileges as secures a succession of members without changing the identity of the body, and constitutes the members for the time being one artificial person, or legal being, capable of trans- acting some kind of business, like a natural person. Per Bronson, C. J., People V. Assessors, 1 Hill, 620. s People V. Utica Ins. Co., 15 Johns. 388 ; McCartee v. Orphan Asy- lum, 9 Cow. 437; Mayor v. Lowten, 1 Ves. & B. 226-240. This common- 138 CONTEACTING PAKTIES. [CHAP. IV. make leases for a term of years, or for the life of the lessee, or at will, to the same extent that an individual may, pro- vided they are not inconsistent with its corporate rights and responsibilities.^ As a general rule, it must grant as well as take by its corporate name ; but an immaterial variance of name will not avoid its grant, when the true name can be collected from the instrument, or is shown by proper aver- ments.2 And the same principles are applicable to the grant- ing of a term for years, as of the fee.^ law right has been restricted in England since the time of Elizabeth, as to religious corpoi'ations ; and such restraining acts have been generally followed in this country. In the State of New York, it is well under- stood that no religious corporation can sell in fee any of its real estate without an order of the Supreme Court; but they are expressly author- ized by statute to demise, lease, and improve the same for the use of the congregation. This limitation of the corporate power to sell is confined to religious corporations; but all others can buy and sell at pleasure, except so far as they may be specially restricted by their charters. 2 Kent, Com. 281. 1 Reynolds v. Comm'rs, 5 Ham. 205; Co. Lit. 44, a. And see Curtis V. Leavitt, 15 N. T. 9, 62, 219, 262. But if a mode of exercising the leasing power is prescribed, this must be strictly followed, or the lease is void. Taylor v. Beebe, 3 Eob. (N. Y.) 262; Ready v. Mayor, 20 N. Y. 312. And the limit to the rights and obligations of the lease are to be found in the lessor's charter, not lessee's. Penn. R. R. v. Sly, 65 Pa. St. 85, 205. ^ That the misnomer of a corporation, whether grantor or grantee, does not vitiate the grant, provided the identity of the corporation with that intended by the parties to the instrument appears, see N". Y. Inst, for the Blind v. How, 10 N. Y. 84; Sutton v. Cole, 3 Pick. 237; Minot v. Curtis, 7 Mass. 444; Chancellor of Oxford's case, 10 Co. 57. The name of the corporation need not be idem syllabis aut verbis : it is sufficient that it be idem re et sensu. Mayor,of Lynn's Case, ib. 124. s Angell & A. Corp. 60; N. Y. Air. Soc. v. Varick, 13 Johns. 38; Berks Co. v. Myers, 6 S. & R. 12; Inhab. Alloway Cr. v. String, 5 Halst. 322 ; Sutton u. Cole, supra. It should be noted here that a mere com- munity of individuals, not incoi-porated, cannot take real estate in succes- sion, and therefore, under a grant of three persons named, for ihemseUes and their associates, being a settlement of friends at, Sfc, to have and to hold as tenants in common for themselves and their associates, the estate rests only in the three persons named. Jackson v. Sisson, 2 Johns. Cas. 321; Co. Lit. 3, a; Jackson v. Cory, 8 Johns. 385; Hornbeck v. West- brook, 9 id. 73. SEC. VII.] COEPOKATIONS. 139 § 127. Bouud by parol Contracts of Directors and Agents. — A corporation at common law could do no act, except hy writing under its corporate seal; but this doctrine has been greatly relaxed by recent decisions in England,^ and is now entirely repudiated in the United States. The Supreme Court of the United States, in common with the State courts, holds, that whenever a corporation aggregate is acting within the scope of the legitimate objects of its creation, all parol contracts made by its authorized agents are binding upon it ; ^ and that a bank, or other commercial corporation, may bind it- self, by a vote of its board of directors, or by the acts of its authorized officers and agents, without the corporate seal.^ The modern decisions, in fact, place corporations, with regard to their mode of making contracts, upon the same footing with natural persons. They may contract under seal, but are no otherwise obliged to do so than individuals. Like them, they are subject to the rules established by law, and cannot take or grant certain interests in land, otherwise than by deed, when similar interests can only be so taken or granted by individuals. Corporations, therefore, may now make parol leases, in the same manner and under the same restrictions that natural persons may.* 1 East Lond. Water-works v. Bailey, 4 Bing. 283. 2 Bank v. Pateison, 7 Cranch, 299; Buff. Com. Bank v. Kortright, 22 Wend. 348; Kelley v. Mayor, 4 Hill, 268. » Fleokner v. U. S. Bank, 8 Wheat. 338; Mott v. Hicks, 1 Cow. 513; Chestnut Hill Co. v. Rutter, 4 S. & R. 16; Danforth v. Schoharie Co., 12 Johns. 227 ; Coppinger v. Armstrong, 8 Bradw. (111.) 210. So if the lease is executed by the corporation's agent. Crawford v. Longstreet, 14 Vroom, 325. Where a committee appointed by a corporation for the purpose executed, as lessees, a lease purporting to run to the corporation, without any words to show in whose behalf they executed the lease, and the cor- poration ratified the action of the committee and entered and occupied under the lease, — it was held that the corporation was liable for the rent reserved in the lease and could not terminate its estate by a notice suf- ficient to determine a tenancy at will. The court said : " It is . . .clear that the defendant having accepted the lease and entered and occupied under it, is bound by its provisions, and liable to pay the rent therein reserved, to the same extent, at least, as if it were a deed poll executed by the plaintiffs." Carroll v. St. John's Society, 125 Mass. 565. And see Crawford v. Longstreet, supra. * U. S. Bank v. Dandridge, 12 Wheat. 105; Per Marshall, C. J., Osborn 140 CONTRACTING PARTIES. [CHAP. IV. § 128. Majority of Directors may bind. — The board of direc- tors are, for all business purposes, the corporation ; and they may authorize a committee or au officer to lease, or otherwise dispose of, its real estate ; and that power implies an authority to affix the corporate seal in all cases where it may be neces- sary or proper.! A majority of such a board are competent to bind them.2 It may be almost unnecessary to observe, that a corporation may accept, and will be bound by a lease, in all cases where the contract is within the scope of its cor- porate authority. And where a corporation entered upon and enjoyed premises pursuant to a lease purporting to be made by its agent, and paid rent thereon, it was held bound by the lease ; and that the authority of the agent to contract for it could be proved as well by a subsequent ratification of his acts as by direct evidence of his appointment.^ § 129. Seal of, necessary in Deed. — How Affixed and Proved. — Although a corporation may execute parol leases without the use of the corporate seal, its seal is still necessary, in all y. U. S. Bauk, 9 id. 738; Garvey v. Colcock, 1 Kott & McC. 231. Lay corporations, by the laws of New York, are restricted from granting or accepting leases, except so far as the purposes of the corporation shall require, or their charter may authorize. 1 K. S. 599. Religious in- corporations also are only authorized to make leases for the use of the society, or other pious uses. Act 5 April, 1813, sess. 36, ch. 60, § 4. In Ecc. Comm'rs v. Merral, L. R. 4. Exch. 162, a tenancy from year to year was created by entry and occupation of land of ecclesiastical corporation under a demise not sealed with their common seal. 1 Burrill w. Bank, 2 Met. 163; Decker v. Freeman, 3 Greenl. 338. A corporation can only act in the mode prescribed by the law creating it. Beatty v. Mar. Ins. Co., 2 Johns. 109; Head v. P. I. Co., 2 Cranch, 127, 166. And where a charter declared that the president and one-third of the directors should constitute a quorum for the transaction of business, and that all business might be transacted by committees, without the presence of the board, it was held that the president alone had no power to act. Dawes u. N. Riv. Ins. Co., 7 Cow. 462. 2 Angell & A. Corp. § 291. Where two trustees, being a corporation, signed their names separately to a lease, and affixed the corporate seal separately to each of their names, it was held to be well executed. Jack- son «. Walsh, 3 Johns. 226. 3 L. I. R. R. V. Marquand, 6 N. Y. Leg. Obs. 160; and see Hoyt v. Thompson, 19 N. Y. 207. SEC. VIII.] TRUSTEES. 141 cases where a seal would be required if the instrument were to be executed by an individual. But the corporate seal, when affixed to a contract or conveyance, does not render the in- strument a corporate act, unless it is affixed by an officer or agent duly authorized to execute the instrument, or he is acting in pursuance of a vote of the board of directors of the company .1 In order to authenticate the instrument, it will be necessary to prove the corporate seal in the same manner as the seal of an individual ; for the common seal is not evi- dence of its own authenticity, but must be proved to be such, not indeed by one who saw it affixed, but by one who knows it to be the seal of the corporation it purports to be.^ When the seal is affixed to the deed, it is primd facie evidence that it was affixed by the authority of the corporation ; provided it ia also proved to have been put to the deed by an officer who was intrusted by the corporation with the custody of such seal. And it lies with the party objecting to the due execu- tion of the deed, to show that the corporate seal was affixed surreptitiously or improperly ; and that all the preliminary steps to authorize the officer having the legal custody of the seal to affix it to the deed have not been complied with.^ SECTION VIII. BY TRUSTEES. § 130. May grant Leases. — Cestui que trust to join. — Trus- tees of land, being the owners of the legal estate, may grant leases which cannot be impeached, so long as they are justi- 1 Jackson v. Campbell, 5 Wend. 572; Bank v. Dandridge, 12 Wheat. 68; Derby Canal Co. v. Wilmot, 9 East, 360. 2 Jackson v. Pratt, 10 Johns. 381; Foster v. Shaw, 7 S. & R. 156; Den V. Vreelandt, 2 Halst. 352. In New York, the seal of a corporation may be aiExed by making an impression directly on the paper, and the legal effect will be the same as if made on wax or a wafer. Laws of 1848, p. 305. ' Lovett V. Steam Saw-mill Co., 6 Paige, 54; Clarke v. Imp. Gas Co., 4 B. & Ad. 315. 142 CONTEACTING PARTIES. [CHAP. IV. fied by the quantity of the estate they possess. If there are several trustees, all must act ; one cannot act separately and independently of the others, for they have only a joint author- ity ; and therefore the lease of one of several trustees is void.^ A party taking a lease from trustees T^dth notice of the trust, and without the concurrence of the person who is beneficially interested, is himself a trustee, and subject to the control of a court of equity. But the lessee of a cestui que trust acquires no interest without the concurrence of the trustee ; he is, in fact, a mere trespasser as against the trustee, and is liable to an eviction at law without any previous notice to quit.^ It is therefore expedient, as in the case of a mortgagor and mort- gagee, that the trustee and cestui que trust should both join in a demise.^ If there be several beneficiaries, the concur- rence of all is necessary ; for if a trustee under a will concur with some, but not all of them, in a lease which recites part only of the trust, the lessee cannot hold in opposition to the other beneficiaries, who are not parties to the lease, since such a recital renders it incumbent on him to make further inquiry, and he is to be considered as having had notice of the title of the other claimants under the will.* The rent may be reserved generally during the term, without specifying to whom it is to be paid, leaving the law to give it its due appropriation ; but the covenants, to make them run with the land, should be entered into with the trustee.^ § 131. Duration of Leases by Trustees, may exceed Limits of the Trust Estate. — Trustees, who hold the fee, may, how- ever, make valid leases of the estate they represent ; indeed a due execution of the trust usually requires them to exercise this power. The duration of such leases must, however, be for a reasonable period, — reasonable under the circumstances 1 Sinclair v. .Tackson, 8 Cow. 543; Story, Eq. § 1062. 2 Blake v. Foster, 8 T. R 487, 492. ' The trustee should demise and lease, and, on the part of the cestui que trust, words of demise should be inserted, as well as words of consent and approbation. * Malpas V. Ackland, 3 Russ. 273. « Webb V. Russell, 3 T. R. 393; s. c. 1 H. Bl. 562. SEC. vni.] TRUSTEES. 143 of each particular case ; but they may extend beyond the period of the trust estate, subject to the jurisdiction of a court of equity to annul them if unreasonable or improper. In one case, where a testator devised his real estate to trustees, upon the trust that out of the yearly rents and profits they should pay certain annuities ; and, subject thereto, should permit a person to receive the rents and profits for life ; and, after his decease, permit his wife to receive them for her life, with limitations over in favor of their children, — the trustees were held to have power to demise for ten years.^ So a trust created by will to receive the rents and profits of an unoccupied and unincumbered real estate which was liable to large taxes and assessments, for the lives of the testator's children, and out of the same to uphold, support, and repair, as well as to pay all charges on the land, was held to authorize a lease for twenty-one years, with a covenant to renew or to pay for buildings to be erected by the lessee.^ But with reference to a devise to A. in fee, in trust for his infant son, to be con- veyed to him at the age of twenty-one years, and, without imposing terms upon the trustees as to the rent, or the length or terms of lease. Lord Eldon held, that, although the trustees might do what was reasonable, they clearly could not alienate the land for a period of ninety-nine years at a stationary rent.^ § 132. Trustees' Leases, when void in Equity. — Whatever may be the term for which the lease is granted, the burden of proving its reasonableness devolves upon the trustee, and the lessee claiming under him. The principle upon which a court of equity will interfere with leases made by a trustee rests on a presumption that the lessor has been guilty of a 1 Att'y-Gen. v. Owen, 10 Ves. 555-560. = Greason v. Keteltas, 17 N. Y. 491. « Naylor v. Arnitt, 1 Russ. & M. 501 ; Att'y-Gen. v. Owen, supra. Where a testator devised a coal tract, leased at a fixed royalty, the lease to remain in the hands of the trustee under the will until the term of the lease should expire, it was held that, after the lessor's death, the trustee might sue for the arrears of royalty, whether accrued before or after the lessor's death; the executors conceding to the trustee the right of action. Shillingford v. Good, 95 Pa. St. 25. 144 CONTKACTING PARTIES. [CHAP. IV. breacli of trust in making, and the lessee has made himself accessory to that breach of trust in accepting, an improper lease. Thus a suspicion of mismanagement will attach to a lease made for a long term of years absolute, at a stationary rent, because no man of a reasonable degree of prudence would so let his own estate ; ^ and it is said, that, generally speaking, an alienation by trustees for ninety-nine years, if a mere husbandry lease, and without adequate consideration,^ or a lease for seventy years or more, at an unvarying rent, can in neither case be upheld, — the value of such interests being but little inferior to the value of the inheritance, and no other consideration than the rent forming an inducement to the contract.^ SECTION IX. BY EXECUTORS AND ADMINISTRATORS. § 133. Respective Powers of. — Executors who hold the legal estate may demise the premises which devolve upon them by the will of their testator, even before probate ; but administrators have no power over or concern with the realty of their intestate except under an order made by the authority of the court which appointed them.* Both executors and ad- 1 Att'y-Gen. v. Cross, 3 Mer. 524; Att'y-Gen v. Brooke, 18 Ves. 326. 2 Att'y-Gen. v. Owen, lo'Ves. 555; Att'y-Gen. v. Hotham, 1 T^urn. & K. 209; Att'y-Gen. t. E. I. Co., 11 Sim. 380. 8 Att'y-Gen. ... Griffith, 13 Ves. 575; Att'y-Gen. v. Backhouse, 17 id. 290; Att'y-Gen. v. Warren, 2 Swanst. 304; Att'y-Gen. v. Foord, 6 Beav. 288. * Bank v. Dudley, 2 Pet. 492; Roe v. Summerset, 2 W. Bl. 692; 1 Atk. 461. In Indiana, an administrator may let, pending administration, but his lease determines therewith. Burbank v. Dyer, 52 Ind. 392. So in Minnesota, G. S. 1866, c. 52, § 6; Smith v. Park, 81 Minn. 70. In Mis- sissippi, Code 1880, § 1327, the administrator may collect the rent of land leased by the intestate for the year in which his death occurs. Tucker v. Whitehead, 58 Miss. 762. In Missouri, an executor may make leases for not exceeding three years. Stat, of 1843, 3, 4. In Alabama, the admin- istrator or executor may take rents accruing after the lessor's death, and SEC. IX.] EXECUTOKS AND ADMINISTKATOES. 145 ministrators, however, have an absolute power over terms of years granted to a testator or intestate, and may either assign or underlet them, the rent being assets in their hands.^ Several executors are regarded as an individual person, and have a joint and several interest in the testator's property ; the lease of one executor is therefore as valid as, their joint demise would be, although it purports to be in the name of all.^ The husband of a woman who is an executrix had, at common law, a joint interest with her in all the effects of the deceased, and might assume the whole administration, and act in it for all purposes, without her consent ; but the wife could not do any act as executrix or administratrix without her husband's concurrence. She was therefore, with respect to terms for years which she possessed in her representative character, in no better situation during the marriage than in the case of terms for years to which she was entitled in her own right.^ § 134.. Leases by, where void in Equity. — Legatee to be joined. — It is also said that leases hy executors or administrators, though good at law, are voidable in equity, unless shown by the lessees to be in the course of a due administration of the assets of the testator or intestate ; an under-lease granted by an administratrix was consequently set aside, where the lessee had notice that a division of the property had been agreed upon, and that a lease was not therefore required by the par- ties who were beneficially interested.* A person taking from may rent or sell lands for the purpose of paying the lessor's dehts. 1 Brick. Dig. p. 937, §§ 330-333; Palmer v. Steiner, 68 Ala. 400. See Houston V. Farris, 71 id. 570; Farris v. McCurdy, 74 id. 162. And the administrator may repair in order to make the premises tenantable. Vandegrift v. Abbott, 75 id. 487. If the heirs assent, an administrator may, as such, control the renting of the real estate. Stearns v. Stearns, 1 Pick. 157; Choate v. Arrington, 116 Mass. 552. 1 Bac. Abr. Leases, I. 7. And rent on such lease goes to the executor or administrator, and not to intestate's representative.- Drew v. Bayly, 2 Lev. 100. * Simpson v. Gutteridge, 1 Madd. 616; Bedell v. Constable, Vaugh. 179; Roe v. Hodgson, 2 Wils. 129; Beaufort ». Berty, 1 P. Wms. 702; Doe V. Sturges, 7 Taunt. 217. « Chamb. Leases, 35. < Drohan v. Drohan, 1 Ball & B. 185; Evans v. Jackson, 8 Sim. 217. VOL. I. — 10 146 CONTKACTING PAKTIES. [CHAP. IV. an executor a lease of premises specifically bequeathed to another, should therefore, if possible, obtain the concurrence of the legatee ; for, after the executor's assent to the bequest, the legal title vests in the legatee, at whose suit an action of ejectment will lie against the purchaser.^ SECTION X. BY GUARDIANS. § 135. Powers to Lease at Common Law now generally su- perseded. — Guardians of infants, who were in the nature of guardians in socage, might, at common law, demise the in- fant's lands for a term of years not extending beyond the infant's age of fourteen years.^ And such demises might be in the guardian's own name, and without leave of the court ; for he had not merely a bare authority, but an interest in the land descended.* But a term extending beyond that period was voidable, provided the infant was then entitled to choose his own guardian ; and it might be avoided or affirmed by a subsequent guardian chosen by the infant.* The common- law distinctions of guardians have, however, in this country, been essentially superseded in practice by guardians appointed by the courts of chancery or of probate ; who, as well as tes- tamentary guardians, are now vested with all the rights of a guardian in socage, during the whole of an infant's minority.^ 1 Paramour v. Yardley, Plowd. 539; Westwick v. Wyer, 4 Co. 28, b; Doe 0. Guy, 3 East, 120. So Fenton v. Clegg, 9 Exch. 680. 2 Doe V. Hodgson, 2 Wils. 129; Bacon v. Taylor, Kirby, 368; Thacker V. Henderson, 63 Barb. 271. * Thacker v. Henderson, supra. * Shopland v. Ryoler, Cro. Jac. 55-98; Jones v. Brewer, 1 Pick. 314; Snook V. Sutton, 5 Halst. 133; Van Doren v. Everitt, 2 South, 460; Emerson v. Spicer, 46 N. Y. 594. 5 Byrne v. Van Hoesen, 5 Johns. 66; Field v. Scheffelin, 7 Johns. Ch. 154. They, accordingly, not merely may but must lease the ward's land, and are accountable for losses from omitting so to do. Hughes Minors' App., 53 Pa. St. 500; Campau v. Shaw, 15 Mich. 226. And as a guard- SEC. XI.] COMMITTEES AND EECEIVBBS. 147 It is generally understood that his authority continues until the majority of his ward, and is not controlled by the election of the infant when he arrives at the age of fourteen.^ SECTION XL BY COMMITTEES AND EECEIVERS. § 136. Powers of, how derived. — The committee of a luna- tic were at first considered as bailiffs, and having no perma- nent interest in the estate could not make leases of the lunatic's lands without an express order of the court appointing them.^ And even the court could not enable them to grant an ab- solute interest, or one that the lunatic, on his recovery to a healthy condition of mind, might not terminate.^ But the ian has an interest and not merely a power, he cannot lease to himself. Cayley v. O'Neill, 1 Lans. 214. In Massachusetts, however, a guardian has no interest in the ward's property, but a naked power only. Hicks V. Chapman, 10 Allen, 463. But he may make a lease in his own name of the ward's property mutually binding on himself and the lessee. lb. Mansur ». Pratt, 101 Mass. 60, 62. 1 Matter of Nicoll, 1 Johns. Ch. 25; Matter of Dyer, 5 Paige, 534; Putnam v. Ritchie, 6 id. 390; 2 N. Y. R. S. 151, § 10. In Massachusetts, South Carolina, and Maryland, it is held that the father, as natural guar- dian of an infant, has no authority to make a lease of the infant's land. May V. Calder, 2 Mass. 55; Anderson v. Darby, 1 Nott. & McC. 369; McGruder v. Peter, 4 Gill & J. 323. And in California a lease for a longer period than the infancy of the ward is void. Ross v. Gill, 4 Cal. 250. A general guardian may collect and sue for his ward's share of rent collected from premises owned in part by his ward. Coakley v. Mahar, 35 Hiln, 157. And where the guardian is bound to lease property owned by his ward subject to dower, it is held that he may lease the widow's inter- est together with that of the ward. See Neel's Appeal, 3 Penny. (Pa.) 66. A lease being made by the guardian of a minor, it seems that the latter may collect the rents falling due on the lease after his coming of age. People v. Ingersoll, 20 Hun, 816. " Foster v. Merchant, 1 Vern. 262; Knipe v. Palmer, 2 Wils. 130; Brooks V. Brooks, 3 Ired. 389. A mere bailiff cannot lease his employer's lands otherwise than at will ; but a power may be conferred on him for the purpose. Shopland v. Ryoler, Cro. Jac. 55, 98. « Ex parte Dikes, 8 Ves. 79. 148 CONTRACTING PAKTIES. [CHAP. IV. statutes of England, as -well as of the various United States, now authorize such committees to make specific leases, inde- pendent, in point of duration, of the lunatic's restoration to sanity. It is customary also for courts to make orders for the appointment of a receiver, for the protection, care, and management of the estates of suitors pending a litigation he- fore them. And in all these cases the rules and orders of the courts constitute the law for the governance of such com- mittees and receivers, who are, in fact, regarded simply as officers of the court which appointed them, and always act under its direction.^ SECTION XII. BY AGENTS. § 137. May execute Leases. — Who may be. — How authorized. — A lease may be executed by an authorized agent, as well as by the proprietor himself. According to the " Touchstone," " if an agent have a letter of attorney, or other authority, he may make leases for another ; but herein caution must be had of 1 Hence, one who agrees to take a lease from receivers is not entitled to a covenant binding them to rebuild in case of accidental fire caused by his negligence. Bodman u. Murphy, 35 Md. 154. A general rule of the Supreme Court of New York — Rule 92 — authorizes a receiver, who is appointed by the court, to receive and collect all dues, demands, and rents payable to the debtor ; and he may, without any special order of the court, make leases from time to time as may be necessary, for a term not exceeding one year. And see Shreve v. Hankinson, 34 N. J. Eq. 413. He may also apply for and obtain an order of course, that the tenants attorn to and pay their rent to him. But a receiver of the prop- erty of a judgment debtor, appointed in pursuance of proceedings supple- mentary to an execution, becomes vested with the title of the debtor by virtue of his appointment, and may maintain all actions incidental to a reversionary estate in the land. Porter v. Williams, 9 N. Y. 142. A tenant in possession under a lease executed by a receiver appointed in an action brought against executors holding, as such, a leasehold interest in the premises, is not a tenant of such executors, so as to authorize them or their assigns to institute summary proceedings to remove him. People V. McAdam, 22 Hun, 559. SBC. XU.j AGENTS. 149 three things: 1. That the authority be good; 2. That he that is the attorney do pursue the authority strictly; 3. That he do it in the name of his principal, and not in his own name." ^ As to the persons who may act as agents, there seema to be little or no restriction ; one may, in fact, act as the agent of another, who is disqualified from acting on his own account, — as an infant, a married woman, or an alien.^ His authority may be shown as well by a subsequent ratifica- tion, or an adoption of his acts by the principal, as by an original appointment.* An appointment is directly proved by express words of appointment, either verbally or in writ- ing. It may be indirectly established by proof of the relative situation of the parties, or of their habit and course of dealing and intercourse, or from the nature of the employment, as well as from subsequent ratification.* An agent appointed to contract for the granting of a lease need not be thereunto au- thorized in writing, under the Statute of Frauds ; for, to con- stitute a valid executory agreement relating to lands by an agent, it is only necessary that the agent be lawfully author- ized to make the contract.^ But an appointment under seal 1 Shep. Touch. 270; Combe's Case, 9 Co. 76. But an authority to collect a rent does not authorize the agent to lease. Ind. M. Union V. C. C. C. & I. K. K. 45 Ind. 281; Davidson ». Blumor, 7 Daly, 205. '^ Co. Lit- 52, a; Hopkins v. Mollineaux, 4 Wend. 465; Chastain V. Bowman, 1 HiU (S. C), 270; Gove ». Buzzard, 4 Leigh, 231. * Townsend v. Inglis, Holt, N. P. 278; Haughton v. Ewbank, 4 Camp. 88; Brehn v. Jersey City F. Co., 38 N. J. 74; and the ratification relates back to the original transaction : Lawrence v. Taylor, 5 Hill, 113 ; Frost ». Deering, 21 Me. 156. * Story on Agency, §§ 239-260. A principal is responsible for the acts of his agent, not only where he has actually given authority to the agent thus to represent and act for him, but where he has by his words, or his acts, or both, caused or permitted the person with whom the agent deals, to believe him to be clothed with this authority ; and a man may thus be held liable as a principal, because he has in some way justified all persons in believing that he has constituted some other person his agent. 1 Pars. Cent. 134. s Clinan v. Cooke, 1 Soh. & L. 22, 81 ; Boyland v. Warner, 1 Hayes & J. 79, 88; TurnbuU v. Trout, 1 Hall. 336; McComb v. Wright, 4 Johns. Ch. 667; Lawrence v. Taylor, 5 Hill, 107; Yerby v. Grigsby, 9 Leigh, 387. An agency by parol authorizes the agent to execute a written lease without seal, in the name of his principal. Lake v. Campbell, 18 111. 109. 150 CONTEACTING PAETIES. [CHAP. IV. is necessary where his authority extends to the execution of a lease imder seal, or to the demise of any incorporeal heredita- ment which cannot be granted otherwise than by deed ; ^ and in cases where written authority to the agent may not be suf- ficient to give validity to the deed in a court of law, for want of a seal, equity will compel the principal to ratify and con- firm the deed.2 If the deed, however, is executed in the pres- ence of the principal, and at his request, no other authority to the agent is necessary .^ A power of attorney does not admit of delegation to another, unless it contains a power of substitution ; for potestas delegata non potest delegari/^ And, whenever it is necessary to record a lease, the power must be recorded also.^ 1 Blood ». Goodrich, 9 Wend. 68; Horsley «. Rush, cited 7 T. R. 209; White u. Cuyler, 6 id. 176; Cooper v. Eankin, 5 Binn. 613; Plummer V. Russell, 2 Bibb, 174; Banorgee v. Hovey, 5 Mass. 40; McWhorter v. McMahan, 10 Paige, 386, per Chancellor Walworth: "It is insisted by the appellant's counsel that, to constitute a lawfully authorized agent to make the contract, he must have written authority. Such, however, is not the construction which had been put upon the former Statute of Frauds; and the Revised Statutes have not changed the law in this respect. The law of 1813 required conveyances and leases which were to transfer an interest in lands in prcesenti, to be signed by the party, or his agent lawfully authorized in writing. But, in the Revised Stat- utes, the words* 5y writing are left out, so that it is only necessary the agent should be lawfully authorized. Under this section, and the corre- sponding provision in the English Statute of Frauds, it had long been settled that to make a valid executory contract for the sale of lands or an interest therein, it was not necessary that the authority of the agent should be in writing, but only that the agreement itself should be in writing, and should be signed by him as such agent." 1 Sugd. Vend. 186, 10th Lond. ed. ; Clinan v. Cooke, 1 Sch. & L. 29. To the same effect is Champlin v. Parish, 11 Paige, 405. 2 Harrison v. Jackson, 7 T. R. 207; Story, Agency, § 49. An agent cannot bind his principal by deed unless he has authority by deed so to do. Hanford v. McNair, 9 Wend. 54. The law is settled in this com- monwealth that the unauthorized execution of a deed in the name either of a partnership or of an individual may be ratified by parol. Per Gray, C. J., in Holbrook v. Chamberlain, 116 Mass. 161. ' Gardner v. Gardner, 5 Cush. 488 ; Wood v. Goodridge, 6 id. 120. * Combe's Case, 9 Co. 75, b. 6 Stewart v. Hall, 3 B. Mon. 220. SEC. XII.J AGENTS. 151 § 138. Agreement for Lease by, binds Principal. — Acts beyond Authority. — Supposing the agent to have authority, an agree- ment for a lease, as well as a lease executed in pursuance thereof, will effectually bind the principal ; and if the person, at the time of entering into such an agreement, is acting as the agent of another in negotiating a lease, it is not material whether, at that moment, he intends the agreement to be for the benefit of his principal or of himself ; because, in either case, the principal will be entitled, as against him, to the ben- efit of the contract.^ And although the authority of an agent must, in general, be strictly pursued, yet there are cases where his acts have been sustained when he has exceeded his author- ity ; ^ as if, having power to lease for ten years he makes a lease for twenty, it is good for the ten years, because so far it is a good execution of the power, and will be supported in equity ; ^ though at law, according to some of the earlier Eng- lish decisions, it would seem not to be good 'pro tanto even for the ten years.* But an acquiescence of the principal, after 1 Taylor v. Salmon, 4 Myl. & C. 134; Lees v. Nuttall, 1 Russ. & M. 53 ; s. c. 2 Myl. & K. 819. Where a tenant for years, upon the expira- tion of his term, applied to the attorney who executed the lease for a renewal, who answered that he had no authority, but that he might keep possession until he heard from the landlord ; he was held to be a mere tenant at sufferance, and not entitled to notice to quit. Jackson v. Park- hurst, 5 Johns. 128. 2 Batty V. Caswell, 2 Johns. 48; Fenn v. Harrison, 3 T. R. 757; Munn V. Comm. Co., 15 Johns. 44; Pickering v. Busk, 15 East, 38; Gordon V. Buchanan, 5 Yerg. 71. In general, an authority must be strictly pur- sued in order to bind the principal ; but, whatever may be the form or manner, it will bind the principal if such be the certain and obvious intention of the parties.' The authority must be strictly followed, in all matters of substance; but the whole instrument will be considered, in order to ascertain the intention of the parties and the extent of the authority. Pars. Merc. Law, 145; Long v. Colburn, 11 Mass. 97; Town- send V. Hubbard, 4 Hill, 357. * Sugd. Pow. 545; Perry v. Bowen, Nels. 87; Alexander v. Alexander, 2 Ves. 644 ; Campbell v. Leach, Ambl. 740. A lease of land given during the absence of the owner from the country, by an agent having only authority to take charge of the land while he was gone, and make it pay the best way he could, is terminable by the owner on his return. Antoni V. Belknap, 103 Mass. 193. * Roe V. Prideaux, 10 East, 158. 152 CONTRACTING PARTIES. [CHAP. IV. knowledge of the act done for him by another, will generally be considered sufficient evidence of a ratification of such act.^ § 139. Act under Power to be in Name of Principal. — Another general rule with regard to the execution of an authority is, that an act done under a power of attorney must be done in the name of the person who gives the power, and not in the attorney's name; and if it appears from the deed that the seal is in fact the seal of the agent and not of the principal, the latter cannot be made liable upon any covenant contained in it, nor will the instrument pass any estate or interest of the principal. Thus, where a deed purporting to have been made between A., by B., his attorney, of the one part, and C,, of the other part, stated in the attestation clause that B., as the attor- jiey of A., had set his hand and seal thereto, it was held not to bind A., for that the addition of the word " attorney " was merely descriptive.^ But if the execution of a deed really .appears to be in the name and on account of the principal, the form of words used in the execution of it is not material ; thus it has been held sufficient, where opposite the seal was written, "for S. B. (the principal), by C. D. (the attorney)." 8 § 140. Lease must appear to be by the Principal, —r A distinCr tion is also to be observed between a bare act as the execution 1 Amory v. Hamilton, 17 Mass. 103; Kingman v. Pierce, id. 247 j Wilks V. Back, 2 East, 142; Bogart ». Debussy, 6 Johns. 94; Fowler V. Shearer, 7 Mass. 19; Hopkins v. Mehaffy, 11 S. & R. 126; Harper V. Hampton, 1 Har. & J. 622; McClain v. Doe, 5 Ind, 237. 2 Townsend v. Hubbard, 4 Hill. 351 ; Berkeley v. Hardy, 5 B. & C. 355; Borcherling v. Katz, 37 N". J. Eq. 150; Elwell v. Shaw, 16 Mass. 42; Dean v. Koesler, 1 Hilt. 420; Samuel ». Scott, 13 Phila. 64. Where therefore a lease was in the name of the agent, the addition of the word " agent " to the signature did not make the lease of his principal. Seyr fert V. Bean, 83 Pa. St. 450; Schaefee v. Henkel, 57 How. Pr. 97. So an action for use and occupation will not lie against the principal when there is an outstanding lease in the name of the agent. Kiersted v. Orange & Alex. R. R. 55 id. 51. Bat a parol letting by the agent of an undisclosed principal makes the party put into possession by the agent the tenant of the owner. Charter Oak Life Ins. Co. v. Cummings, 13 Mo. App. 76. ' Wilks V. Back, supra ; Spencer v. Field, 10 Wend. 87 ; Mussey v. Scott, 7 Cush. 215. • SEC, XII.] AGENTS. 153 of a deed, and the making of a contract, in which latter case the phraseology is held to be material ; for if a man describes himself in the beginning of an agreement to grant a lease as •making it on behalf of another, and as his agent, but in a sub- sequent part of the same agreement says he will execute the lease, the agent himself becomes personally liable for its per- formance ; ^ while a lease made by an attorney in his own name, even if he describes himself to be the agent or attorney of his principal, together with the covenants to pay rent, are void.2 But the attorney is not bound, even though he had no authority to execute the deed, if it appears substantially on the face of the instrument to be the deed of the principal.^ Whenever, therefore, an interest is intended to pass by an in- 3trument of lease, it must appear, in terms, to be conveyed by the principal, in whom alone the interest is vested ; for a power of attorney, as such, vests no interest in the representative, and consequently can pass none from him. § 141. Proper form of Execution. — The USUal and proper form for concluding a lease executed under a power of attor- ney is : In witness whereof, A. B., in pursuance of a letter of attorney hereunto annexed, hearing date, ^c. (or, if it is a gen- eral power embracing other lands, then), in pursuance of a letter of attorney bearing date, ^c, a copy of which is hereto annexed, hath set the hand and seal of the principal ; and then to write the name of the principal and deliver it as the act and deed of the principal. When executed by an attorney for several parties, it does not seem to be necessary to affix a sep- arate seal for each person, if the seal affixed appears to have been intended to be adopted as the seal of each of the parties.* 1 In a lease of a theatre, the lessee was described as " M. G., represent- ing Messrs. C. A. C. & Co., manager of the opera company," and the lease was signed by " M. G., representing C. A. C. & Co." One clause was " The said M. G. agrees to pay," etc. It was held that M. G. was liable as principal, and that the words added to his name were descriptive merely. Gran v. McVicker, 8 Biss. 13. 2 White V. Skinner, 13 Johns. 307; Korton v. Herron, 1 C. & P. 648. ' Townsend v. Corning, 23 Wend. 435; Frontin v. Small, 2 Ld. Ray. 1418; Stone ». Wood, 7 Cow. 453. * MoDill ». McDUl, 1 Dall, 63; Bohannons v. Lewis, 3 T. B. Mon. 376; 154 CONTRACTING PARTIES. [CHAP, IV. § 142. Authority to grant does not imply authority to accept lease. — As a general rule, an agent cannot take a lease, for his own use, of property which he is employed to let ; for it is a principle of law, that he who undertakes to act for another in any matter, shall not in the same matter act for himself.^ The rule here stated is similar to that which applies to the case of trustees or other agents buying property which they are intrusted to sell, for they are not allowed to derive any benefit therefrom. Therefore the assignee of a bankrupt, who takes a lease of property himself instead of selling it, is held answerable for any profit or loss upon the transaction.^ And in any case of this kind, it is incumbent on a person holding the character of an agent to show that the transaction from which he derives a benefit is perfectly fair and reasonable; and that a full consideration has been given by him for a lease obtained from his principal.^ SECTION XIII. BT ALIENS. § 143. Right to accept Leases limited at Common Law. — It is a general rule of law that an alien cannot acquire title to property by mere operation of law, as by descent,* but that he may by purchase.* He may also make a grant, which will be effectual against all persons except the State ; but if he pur- chases an estate in fee, for life, or for a term of years, the king, on office found, shall have it. Yet, until office found, he Yarborough v. Monday, 2 Dev. 493; Stabler v. Cowman, 7 Gill & J. 284; Ball V. Dunsterville, 4 T. R. 313. 1 Per Ld. Thurlow, in Whichcote v. Lawrence, 3 Ves. 740. 2 Ex parte Hughes, 6 Ves. 617. See also Ex parte James, 8 Ves. 337. ' Kingsland v. Barnewall, 4 Bro. P. C. 154. ^ Jackson v. Lunn, 3 Johns. Cas. 109; Hunt v. Wamicke, Hardin, 61; Moors V. White, 6 Johns. Ch. 360. 5 Burk V. Brown, 2 Atk. 397; Calvin's Case, 7 Co. 25; Monroe v. Mer- chant, 28 N. Y. 9; McCreery v. Allander, 4 Har. & M. 409. SEC. XIII.] ALIENS. 155 may enjoy it, for, until then, the alien is seised.^ Pursuant to these general principles, and under such restrictions, the com- mon law permitted an alien friend to take a lease of a house for a year for the benefit of trade. According to Lord Coke, however, none but an alien merchant could lease land at all, and then only as necessary to trade.^ The English statutes also made leases of dwelling-houses or shops, granted to a stranger who was an artificer, void, if they extended to a term of years ; only permitting leases at will, or from year to year.* But this law, so contrary to sound policy and the spirit of commerce, has been modified recently by more lib- eral legislation in favor of aliens ; * and Mr. Chancellor Kent well questions whether any such law exists with us at all, at least in respect to the subjects of those nations with whom we have commercial treaties.^ § 144. statutory right to accept or assign Leases. — In New York by statute a resident alien who has filed his declaration of intent to become a citizen of the United States has a right for six years thereafter to take or assign, though not to make a lease.® There are similar statutory provisions in South Car- olina, Indiana, Delaware, Arkansas, Rhode Island, Georgia, Tennessee, and Texas. 1 Co. Lit. 2, b; 1 Prest. Con. 257; Fairfax v. Hunter, 7 Cranch, 603; Orr V. Hodgson, 4 Wheat. 453. 2 Co. Lit. 2, b; Page's Case, 5 Co. 52, b. ' Pilkington v. Peach, 2 Show. 135; Lapierre v. Mcintosh, 9 Ad. & E. 857. * Stat. 7 and 8 Vict. c. 66, § 5. See also Jevens v. Harridge, 1 Wms. Saund. 6, and notes. 6 2 Kent, Com. 62. All contracts made between subjects or citizens of different countries which are at war with each other are utterly void. If made in time of peace, the right to enforce them is suspended during the war, by reason of the personal disability of an alien enemy to sue or be sued. When peace is restored, this right revives, and the contract regains its original obligation, and may be enforced. Griswold v. Wad- dington, 15 Johns. 57; s. c. 16 id. 438. « 1 R. S. 720, §§ 15-20. But the Laws of N. Y. of 1845, ch. 115, pro- vide that all leases made or to be made by aliens to citizens or to resident aliens capable of holding real estate shall be valid. 156 CONTBACTING PAKTIES. [CHAP. IV. § 145. All Disabilities removed, where. — In Louisiana, Penn- sylvania, New Jersey, Maryland, Michigan, Illinois, Massachu- setts, Connecticut, Iowa, Wisconsin, and Ohio, the disability of aliens to take, hold, and transmit real property is entirely removed. While in Florida and Maine, aliens may, by law, "take, hold, convey, or devise" real estate. In Missouri, Mississippi, California, and New Hampshire, disabilities are removed from all resident aliens, and in Kentucky, if resident for two years. In the constitution of North Carolina and Vermont it is provided that every person of good character who comes into the State and settles there, taking an oath of allegiance to the same, may thereupon purchase, and by other just means, acquire, hold, and transfer land. The disability never, of course, extended to a denizen, or foreigner who has been naturalized, who is as capable of being a party to a lease as a natural-born citizen.^ 1 2 Kent, Com. 70; 1 Bl. Com. 374. SEC. I.] FORMAL PAET8. 167 CHAPTER V. THE INSTRUMENT OP DEMISE. SECTION I. THE FORMAL PARTS OP A LEASE. § 146. Deed necessary to grant Life Estate. — Particulars o£ — We have seen that a demise for years, being but a chattel inter- est, may be perfected by the entry of the lessee, without deed or other instrument in writing ; but a deed has always been re- quired for the conveyance of an incorporeal hereditament, and is consequently necessary for the creation of a lease for life. And when a demise, whether for life or years, is intended to embrace the various covenants usually entered into by the parties, it must be by deed. A deed is an instrument under seal, written or printed upon paper or parchment, and takes effect by its delivery to the grantee. If written upon stone, board, linen, leather, or the like, it is no deed ; for neither of these articles was, in the opinion of the ancient jurists, so secure from alteration, and at the same time so durable, as paper or parchment.^ Neither can a blank paper which has been signed, sealed, and delivered, and afterwards written upon, be considered a deed ; and, forasmuch as it contained nothing when delivered, nothing passes by it. But a deed may be signed and sealed, and then filled up, provided this be done before delivery .^ If made between more parties than one, there should regularly be as many copies of it as there 1 Co. Lit. 229; F. N. B. 122. 2 Duncan v. Hodges, 4 MoCord, 23, g; Pettninter v. McDaniel, 1-. Hill, (S. C.) 267. 168 INSTKUMBNT OF DEMISE. [CHAP. V. are parties ; and formerly each copy was cut, or indented at the top, so that they might tally or correspond with each other. It then becomes what is technically called an indent- ure; the several copies of the same instrument being exe- cuted interchangeably by the respective parties. The copy delivered to the tenant is called the original lease ; that re- tained by the landlord is the counterpart ; but, for all practi- cal purposes, both parts are now considered originals, and must each be stamped when stamps are required.^ § 147. Deeds-poll. — Acceptance of, implied. — If the deed is only a single instrument, that is, signed by the grantor alone, it is not an indenture, but it is called a deed-poll. The former possesses some advantages over the latter, since it imports obligations on the part of the lessee, amounting to an agree- ment between two persons, — an office which the deed-poll cannot perform, since it is but a declaration by the party executing it of an act done or to be done by himself alone in favor of the other party. The lessee's acceptance of an inter- est under such an instrument will, however, be implied, unless he expressly dissents, and will render him liable for rent; although he cannot be made liable to an action of covenant, for he makes none, since a covenant can only be created by a deed executed by the covenantee ; and consequently, by mak- ing use of a deed-poll, covenants on the part of a lessee are substantially dispensed with.^ 1 Dudley v. Sumner, 5 Mass. 438; Carrie v. Donald, 2 Wash. 58. Where the lease and counterpart differ, the former controls. Burchell V. Clark, 1 L. K. C. P. T)iv. 602. ^ Thompson v. Leach, 2 Vent. 198; Chancellor v. Poole, 2 Dong. 764; Burnett v. Lynch, 5 B. & C. 589. The words of a covenant in a lease by indenture are to be taken, however set down in the instrument, as the ■words of the party to whom they properly belong, or, if properly belong- ing to both, as the words of both. The words of an indenture, being the woi-ds of either party, are not to be taken most strongly against the one or beneficially for the other, as the words of a deed-poll are. Beckwith V. Howard, 6 R. L 1. No person who is not a party to a deed can take anything by it, unless by way of remainder. Hornbeck v. Westbrook, 9 Johns. 73. SEC. I.] FORMAL PABTS. 159 § 148. Date not essential ; takes Effect from Delivery. — The date of a lease is no part of its substance, and need not, in fact, be inserted at all ; and, therefore, a mistake in the date will not vitiate the instrument.^ If there is no date, or should there be an impossible date, the term will be con- sidered as commencing from the delivery of the deed ; unless some particular time for its commencement is therein speci- fied. But if the deed has a sensible date, the word date, in the body of it, will refer to that period, and not to the date of delivery .2 And it is always competent for either party to show that the delivery "fcook place on a day different from that of the date.2 § 149. Names of Parties. — Mistake in, does not invalidate. — Aliter, as to omission. — As to the names of the parties, it may be observed that the law knows but one Christian name, and, therefore, the omission or insertion of the middle name of either party is immaterial ; for a party may show that he is as well known by one name as another.* And neither a mistake in the spelling of an individual name nor a variance in the name of a corporation, which are not materially differ- ent from the true name, will invalidate an instrument.^ When the lease is made by an agent or attorney, it should run, as we have said, in the name of the principal, and not of the agent ; because a power of attorney gives no interest in the land, but merely authorizes the attorney to stand in the place, 1 Jackson ». Schoonmaker, 2 Johns. 230, 234. 2 Church V. Gilman, 15 Wend. 656; Styles v. Wardle, 4 B. & C. 908. An agreement, however, for the lease and occupation of land made on the Lord's day is void by statute in Massachusetts ; but, if the land is subse- quently entered upon and occupied, the tenant is liable for the rent. Stebbins v. Peck, 8 Gray, 553. 3 Steele v. Mart, 4 B. & C. 272; Morris v. Wadsworth, 17 Wend. 103. * Games v. Stiles, 14 Pet. 322; -Lyon v. Kain, 36 111. 362. Parol evi- dence is inadmissible to show that a lease executed in the name of and rendering rent to one person was intended for the benefit of another. Jackson v. Foster, 12 Johns. 488; or that, although made on its face to A., it was for the benefit of A. and B. jointly. Otis v. Sill, 8 Barb. 102, 122. s McCarthy v. Noble, 5 N. Y. 380; People v. Kunkel, 9 Johns. 147. 160 INSTEtTMENT OP DEMISE. [CHAP. V. and act in the name, of his principal.^ And the person to whom the lease is made ought always to be a party ; for if A. covenants with B. that C. shall enter and enjoy, this will be a mere collateral covenant and not a lease ; because B.j with whom it is made, is a stranger, and C, the intended lessee, is no party to the agreement.^ But the omission of a lessee's name from the instrument entirely would render it invalid ; for a deed without a grantee's name, and which has been left blank, to be inserted at some future time after its delivery, is absolutely void.^ § 150. Recitals. — Errors in, immaterial. — Exceptions. — Reci- tals of former instruments, or of circumstances that have led to the making of a lease, are sometimes used by way of explanation, and for the purpose of showing the intention of the parties. But an error therein is not material, unless it be in the recital of a lease, after the expiration of which the new term is intended to commence ; * or unless it shows that 1 Frontin v. Small, 2 Ld. Ray. 1418; Wilks v. Back, 2 East, 142; Sey- fert V. ^ean, 83 Pa. St. 450. 2 Porry v. Allen, Cro. El. 173; 1 Leon. 136; Havergil v. Hare, 3 Bulst. 251. 8 Jackson v. Titus, 2 Johns. 430; IT. S. v. Nelson, 2 Brock. 64; Hay- den V. Wescott, 11 Conn. 129; Ayres v. Harness, 1 Ham. 368; Edelin ». Sanders, 8 Md. 118; Ingi-am v. Little, 14 Ga. 173. The law in England was settled as stated in the text in Hibblewhite v. McMorine, 6 M. & W. 200; Davidson v. Cooper, 11 id. 794; and also in New York, after an elaborate review of the authorities, in Chauncey v. Arnold, 24 N. Y. 330. So Burns v. Lynde, 6 Allen, 305; Basford v. Pearson, 9 id. 387; Simms V. Hervey, 19 Iowa, 290; Drury v. Foster, 2 Wall. 24. The cases also deny that parol authority to fill up blanks before delivery is admissible^ though some expressions contra are found in Chauncey v. Arnold, and Drury v. Foster, supra; but these, like the decision in Inhabs. v. Huntress, 53 Me. 90, relate to alterations not material, or instruments other than conveyances. * Jackson v. Streeter, 5 Cow. 529; Bath and Montague's Case, 3 Ch. Cas. 101; Shep. Touch. 77. With regard to recitals, one reason for inserting them is to prevent the parties to the lease from afterwards denying the matters recited; for a lease by deed operates like any other deed as an estoppel, and prevents the parties to it from afterwards dis- puting facts recited in it. But see an important qualification of this rule in 1 Greenleaf, Ev. 267. SEC. I.] FORMAL PARTS. 161 the lessor had no interest in the subject-matter of the demise.^ So a recital in a lease that a former lease of the premises granted to another person had been surrendered would not afford evidence of a surrender if the fact is otherwise.^ Nor would the execution of the counterpart of a new lease, taken by the lessee prior to the determination of his former interest, with a recital that it was granted in consideration of the surrender of the former lease, produce a surrender, unless it were by operation of law ; inasmuch as it did not purport of itself to be a surrender, having no words in it which could denote, or amount to, a yielding, or rendering-up of the interest of the lessee.^ § 151. Misrecitals, bow controlled. — If a lease, for years be granted subject to another lease, to commence after the expira- tion of such lease, which is recited to have been made to a third person, when in truth there never was such a lease ; or supposing one, if made, to have expired, or to have been originally void, the new demise will take effect immediately on the execution of the deed.* So if a lease for years be granted, to commence after the termination of a former lease then existing, but misrecited in a material part, the new term will commence immediately, in enumeration of years, though not in possession until the end of the former lease. But if misrecited in an immaterial part, the term will commence at the end of the existing lease.° A misrecital of the lessee's name, however, has been deemed material, when it was cal- culated to mislead ; but a misrecital of the rent, of the time or place of payment, of the covenants, or that the lease was without impeachment of waste, will not be deemed material misrecitals of a lease.® 1 Hermitage v. Tompkins, 1 Ld. Ray. 729; McAreavy». Hannan, 13 Ir. C. L. 70. 2 Lyon V. Keed, 13 M. & W. 285. » Roe V. Archb. of York, 6 East, 86. * Foot V. Berkley, 1 Vent. 83; Bishop of Bath's Case, 6 Co. 34, b; 36, a. s Miller v. Manwaring, Cro. Car. 397. « Foot V. Berkley, supra, per Tirrel, J. VOL. I. — 11 162 IKSTKUMENT OF DEMISE. [CHAP. T. § 152. Consideration to appear. — Rent, as such, is not, as we have said, essential to a lease ; for, from favor, or for a valuable consideration paid in gross, the tenant may have a lease without any render. But some consideration, express or implied, must appear, to give validity to the lease as a con- tract ; and this is eitlier a good consideration, as natural affection ; or valuable, as money, or the rent reserved.^ The reservation may be, not only in money, but in grain, animals, or produce ; or it may consist of the personal services of the lessee. It is not, however, absolutely necessary that the exact amount of the reservation be fixed at the time of the creation of the tenancy, for this may be determined afterwards.^ And if no amount of rent has been agreed upon, the tenant will still be bound to pay as much as the use and occupation of the premises are reasonably worth.^ § 153. As between Lessor and Lessee, fraudulent or immoral Consideration avoids Lease. — If, however, the Consideration is fraudulent, unjust, or immoral, — if, for instance, it is founded on a marriage-brokage transaction, or should be contempora- neous with a loan of money, and used as a means of evading the usury laws, — the lease will be void ; although, in the latter case, the proposal for connecting the loan with the lease may proceed from the lessor.* But an underlessee, not concerned 1 Failing K. Schenek, 3 Hill, 344; State v. Page, 1 Spears, 408; Mc- Farlane v. Williams, 107 III. 33. And see, ante, § 14. 2 Denn v. Cartright, 4 East, 29. Chancellor Kent, 3 Com. 462, is of opinion that the best way of reserving perpetual rents, and preserving uniformity in value, is to make them payable in wheat, or other produce. The ancient leases in New York, in the manor counties, are generally of this description. It saves the interest of the persons in whose favor rent is reserved, from sinking by the depreciation of money, owing to the augmentation of gold and silver, and the accumulation of paper credit. And Adam Smith observes that such rents have preserved their value much better than those which have been reserved in money. It certainly seems to be the fairest mode of letting, as well for the landlord as the tenant; the landlord has the advantage of a prosperous harvest, and the ten- ant escapes the heavy loss which a year of scarcity might bring upon him. » Scranton v. Booth, 29 Barb. 171; Newell v. Lanford, 13 Iowa, 191. * Brown v. O'Dea, 1 Sch. & L. 115; Drew v. Power, id. 182; MoUoy V. Irwin, id. 310; Doe v. Gooch, 3 B. & A. 664. SEC. I.] FORMAL PAETS. 163 in the loan, or cognizant thereof, will . not be disturbed by such a consideration. 1 Nor will a lease be set aside, merely on the ground of its being contemporaneous with an advance of money to the lessor, unless there be, in addition, some evidence or legal presumption that the advance was made as a means of covering usury.^ As a general rule, however, a lease granted in consideration of a loan, will not, on principles of public policy, be allowed to stand ; and especially, if any advantage has been taken by the lessee of the distresses of the lessor, it will be considered a mere evasion of the statute against usury .^ Still, the taint of usury may be only matter of inference ; and, if it can be shown that no advantage has been taken by the lessee, but on the contrary, that the circum- stances are such as to render it unconscionable, on the part of the lessor, to seek to set aside the transaction, and that it would be a manifest hardship to the lessee to do so, a court of equity will not interfere. If it were otherwise, the doctrine of setting aside leases connected with a loan of money might be converted, by dishonest landlords, into an instrument of greater fraud than that which it was designed to prevent.* § 154. Reservation of Rent, how expressed. — No particular or technical form of words is necessary to constitute a reser- vation of rent. A demise, provided the lessee pays a certain rent, or in consideration of the rent aforementioned, will be as effectual as if it contained the words yielding and paying, which are the words generally made use of for this purpose.^ And, as to the person in whose favor it is to be reserved, it is ^ Molloy V. Irwin, supra. Sed qucere de hoc, under the New York Usury Law. " Moore v. McKay, Beat. 282 ; "Von Hollen v. Knowles, 12 M. & W. 602. 8 Morony v. O'Dea, 1 Ball & B. 116; Corbet v. Segrave, 2 id. 101; Brown v. O'Dea,.! Sch. & L. 119; Drew v. Power, id. 190. * O'Brien v. Grierson, 2 Ball. & B. 332; Molloy v. Irwin, supra. The common-law doctrine of usury, however, as stated in the text, is of limited application in this country. Usury avoids a contract in Arkansas, New York, North and South Carolina; but in other States some penalty is annexed other than avoidance. * Drake v. Munday, Cro. Car. 207 ; Caswell v. Districh, 15 Wend. 379. 164 INSTKUMENT OF DEMISE. [CHAP. V. sufficient that the reservation be made in general terms, with- out saying to whom ; for, in that case, the law directs the in- tent, according to the nature of the lessor's interest.^ As if a lessee for years makes an under-lease reserving rent to him and his heirs, during the term, it would, nevertheless, accrue to his executors ; for it is but a chattel interest, and not the freehold, which alone passes to an heir.^ Being an incident to the reversion, it must follow the nature of the land out of which it is reserved ; as if a man seised as heir-at-law on the part of his mother, should demise land rendering rent to him and his heirs, it must go to the heirs on the part of the mother.^ And where a husband is possessed of a term of years, in right of his wife, and demises land, rendering rent, the rent after his death goes to his executors, and not to the widow.* § 155. Reservation to foUo'ro- the Inheritance. — If a special reservation is made, care must be taken that it be made to him from whom the estate in the land is derived ; ^ for, if a lessor reserves rent to himself and his wife, although this is good for his life, yet after his death, the wife, being a stranger, cannot have the rent ; ^ for the same reason, if it be reserved, not to the lessor but to his heir, it will be bad.^ But although rentj as such, cannot be reserved to a stranger, for the want of a privity of estate, such a reservation may be good as a sum in gross, for which an action in covenant will lie.^ And * Jaques ». Gould, 4 Cush. 384. ' KnoUes's Case, Dyer, 5, b; 45, a; Co. Lit. 47, a. « Van Wicklen v. Paulson, 14 Barb. 654; Cother v. Merrick, Hard. 94. An annual rent may, however, be reserved by deed, upon a grant in fee, and will be valid as a rent-charge; notwithstanding there is no reversion in the person entitled to it. Van Rensselaer v. Hays, 19 N. Y. 68. « Co. Lit. 46, b; Loftus's Case, Cro. El. 279. * Co. Lit. 47, a; Hornbeck v. Westbrook, 9 Johns. 73; Ege v. Ege, 5 Watts, 138. Rent can only be reserved in favor of a person having a legal estate in the land. Gilbertson v. Richards, 4 H. & N. 276. 6 2 Rol. Abr. 447, 1. 33. ' 8 Co. 70; Co. Lit. 99, b; 213, b. 8 Frontin v. Small, 2 Ld. Ray. 1418. But one not privy to the consid- eration, nor party to the deed, cannot sue thereon. Mellen v. Whipple, 1 Gray, 317. In Brewer v. Djer, 7 Cush. 337, one whom lessee had let SEC. I.] FORMAL PARTS. 165 if a man seised of a freehold, makes a lease for a term of years, to commence after liis death, rendering rent to his heirs, this reservation will be good.^ § 156. Misdescription of Reversioner immaterial. — A special reservation was anciently construed strictly according to the words employed, and if it ran to the lessor or his heirs, in the disjunctive, it terminated with the lessor's death ; and if to the lessor, his executors, administrators, and assigns, during the term, he having a freehold, his heirs could not recover because not mentioned, nor his personal representatives, be- cause the rent was annexed to a freehold reversion.^ But the former position was held otherwise, where the covenant was to pay rent during the term; and the latter was soon over- ruled,^ upon the well-established principle that rent, reserved to be paid during the term, follows the nature of the rever- sion, and goes to the person entitled to the reversion, though misdescribed, and that the misdescription may be rejected as surplusage.* Thus if the lessor was seised in fee his heirs could alone recover rent, though reserved to the lessor, his executors, administrators, and assigns, during the term; while, on the other hand, if the lessor had but a chattel in- terest his personal representatives could alone recover rent, though reserved or covenanted to be paid to him and his heirs.^ If, however, it does not clearly appear whether the lessor's interest is chattel or freehold, the words of the reser- into possession on a written agreement to pay lessor rent, was held liable to lessor on privity of consideration, though no party to the contract. But this case is doubted. St. L. Exoh. Bank ». Rice, 107 Mass. 41, 43. 1 Gates V. Frithe, 2 Rol. Abr. 447; Co. Lit. 99, b; 213, b. 2 Co. Lit. 214, b; Richmond e. Butcher, Cro. El. 217. 8 Mallory's Case, 5 Co. 112; s. C. Cro. El. 832; Sury «. Brown, Latch, 99; Sacheverell v. Frogate, 1 Vent. 161. * Sacheverell ». Frogate, 1 Vent. 161, a leading case. It was admitted in this case that if the reservation were to lessor merely, without more, the rent would cease on his death, Wootton v. Edwin, 12 Co. 36; 11 Edw. III. 88 ; but the contrary opinion is given by Littleton, and is apparently approved. Sacheverell v. Frogate, 2 Wms. Saund. 368, in notis. And it may be doubted, if in this case the rent would not at this day be held to follow the reversion, and recoverable by -whoever was entitled thereto. 6 Whittome v. Lamb, 12 M. & W. 813. 166 INSTBUMENT OF DEMISE. [CHAP. V. vation or covenant will govern.^ In like manner, where a life-tenant, with remainders over, by a conveyance operative under the Statute of Uses, had power to lease and reserve rent to himself and his heirs, it was held that the remainder-man could recover thereon, because the reservation must follow the inheritance.^ § 157. Exceptions, when void for Repugnancy. — Exceptions are frequently introduced, to restrain, explain, or qualify general terms in a demise ; as to except a farm out of the demise of a manor, a close out of a farm, or the like. But an exception of that which is expressly granted will be void for repugnancy ; as, if a man demise a house and shops, excepting the shops ; or certain lands and underwoods thereunto belong- ing, excepting the underwoods ; or twenty acres, excepting ten acres : in each of these cases the exception is void.^ So an exception of a thing to which the grantor has no right is void ; and therefore a lessee for years or for life, not being lessee without impeachment of waste, cannot, on assigning over his term, except to himself the timber-trees, the gravel or clay, or the benefit of the coal-mines within the land.* But a lessee without impeachment of waste may make such an exception. So if he grant a less estate than his own ; as, if lessee for years underlet for a shorter term, or lessee for life make a lease for years, in either case, the wood, underwood, and trees growing upon the land, may properly be excepted ; for the mesne lessor remaining tenant, and continuing liable to his lessor, may thus secure to himself a remedy against the sub-lessee, in the event of his cutting down trees, or the like.^ If a lessor intends to retain a right of way, or indeed any * DoUen v. Batt, 4 C. B. n. s. 760, where the interest was held a chattel, because the reservation was to lessor, his administrators and assigns. '■' Whitlock's Case, 8 Co. 69; Isherwood v. Oldknow, 3 Maule & S. 382; Greenaway v. Hart, 14 C. B. 340. But if the power is not followed, the reservation is void. Yellowly v. Gower, 11 Exch. 274. 3 Stukeley v. Butler, Hob. 170; 3 Dy. 264, b, n, (40); Kenson v. Reading, Cro. El. 244. * Saunders's Case, 5 Co. 12, a; Sanders v. Norwood, Cro. El. 683. 5 Bacon v. Gyrling, Cro. Jac. 296; Percy's Case, 13 Co. 60; 1 Com. Dig. 607, Biens, H. SEC. I.] FORMAL PARTS. 167 other right or control, over the demised property, he must expressly reserve it. But a covenant by the lessee, to pull down the corner of the house leased to him, for the purpose of letting the lessor make a cart-way over the spot, will not confer such a right.^ And the reservation of a right of way on foot, and for cattle and sheep, does not give a right of way to carry manure, which implies drawing it in a carriage.^ § 158. Reservations, Distinguished from Exceptions. — A reser- vation is properly of some right or profit, to arise from the subject of the demise, which had previously no separate exist- ence ; while an exception relates to some existing component part of the thing demised, which is capable of being severed or distinguished from it. As, in the case of a demise of all that farm called A., except a particular close, the close would pass as part of the farm without the exception ; and the words of exception are considered to be the words of the lessor.^ But where there is a reservation in favor of the lessor of a thing dehors the lease, as a way, common, or other profit ; or a pro- viso that it shall be lawful for the lessor, at any time during the term, to cut and carry away the trees, — the words amount to a reservation, or an agreement on the part of the lessee for the lessor's enjoyment of the privilege referred to, and not to an exception.* An exception includes everything 1 Good V. Hill, 2 Esp. 690. » Brunton v. Hall, 1 Gale & D. 207. " BuUen v. Denning, 5 B. & C. 842. So where a lessor of a perpetual lease with machinery reserves a "lien" on the machinery, this is held not a mortgage to him merely, but to take effect by way of reservation, or more properly exception, and valid against lessee's creditors. Metcalfe V. Fosdick, 23 Ohio St. 114. * Russell & Gulwel, Cro. El. 657. A lessor may expressly reserve by parol the crop growing on the land at the date of the lease. Such an agreement converts the crop as between the parties into personalty, and it will not pass by the lease. Youraans v. Caldwell, 4 Ohio, 71. So the hay may be reserved. Jordan v. Staples, 57 Me. 352. So in Heald v. Build. Ins. Co., Ill Mass. 38, the covenant of two lessees not to remove the hay, but to feed it out to the cattle, was called a reservation, and it was held that sole title thereto vested in the lessors as it came into exist- ence. But all these cases seem to operate rather as exceptions than reservations. Durham Co. v. Walker, 2 Gale & D. 326. The reservation of a right of way is a reservation to the grantor only. Bridger v. Pierson, 168 INSTEUMENT OF DEMISE. [CHAP. V. dependent on it, and necessary for its enjoyment ; thus, if a lease reserves the wood, &c., it includes the right to enter and carry it away.^ So, notwithstanding an exception in a lease, of certain closes or rooms which the lessee is not to use, he may still pass and repass through them, if they are so situated that he cannot otherwise have the complete enjoyment of the premises demised to him.^ If there is a reasonable doubt as to the meaning of an exception in a lease, the words of the exception, being the words of the lessor, are to be construed favorably for the lessee, and against the lessor. As in a lease of certain lands, excepting and reserving all timber-trees and other trees, but not the annual fruit thereof, it was held that the apple-trees were not within the exception.^ And if the exception is not specified with reasonable certainty, it is void altogether ; as in the case of a demise of a manor ex- cepting one acre, without specifying what acre.* A saving-out of an exception defeats the exception to the extent of the saving ; and, therefore, if one let a manor for years, excepting the mansion-house, saving to the lessee a certain chamber, the chamber passes as if there had been no exception.^ § 159. Woras of Demise. — As to words of demise, we may observe that no particular form of words is necessary to con- stitute a lease ; but whatever expressions explain the inten- tion of the parties to be that one shall divest himself of the possession of his property, and the other take it for a certain space of time, are sufficient, and will amount to a lease for 1 Lans. 481. Where a lease for years reserves to the lessor the right to recover for any and all damage to the estate from any railway passing through the same, the lessee cannot I'eoover for any injury caused thereby to his term of years. Burridge v. New Alb. R. R., 9 Ind. 546. 1 Foster v. Spooner, Cro. El. 17; Cardigan v. Armitage, 2 B. & C. 206. But by an exception of certain rooms by lessee a right of foot. way, not of carriage way, is reserved. Fort v. Brown, 46 Barb. 366. 2 Liford's Case, 11 Co. 52, a. * BuUen v. Denning, supra; Shep. Touch. 100; Cardigan v. Armitage, supra. But see Barnes v. Ravensworth, 15 C. B. 512. * Dorrell v. Collins, Cro. El. 6. A reservation in a lease of " one day's service, with carriage and horses" annually, on a day named, is not void for uncertainty. Van Rensselaer v. Jones, 5 Den. 449. 6 Leigh v: Shaw, Cro. El. 372; 3 Dyer, 264, b, n, (40). SEC. I.] FORMAL PARTS. 169 years, as effectually as if the most proper and permanent form of words had been made use of for that purpose.^ The usual terms, however, by which a lease is made, are, " demise, grant, and to farm let ; " but, according to Sir Edward Coke, the word dedi is sufi&cient to make a lease for years.^ And a covenant with a man to stand seised to his use, will operate as a lease at common law.* So will a license to enter and enjoy land, or to reside in a certain house.* And where a man, by his will, declared, " I have made a lease to J. S. for twenty-one years, he paying but twenty shillings rent," it was held to be a good lease for twenty-one years, and that the word have should be taken in the present tense, and equiva- lent in significance to the word grant in a deed of feoffment, by which the party is estopped from denying the creation of an estate.* An agreement that A. shall have, occupy, and enjoy land, will enure as a lease, if it appears to be the inten- tion of the parties to create the present relation of landlord and tenant.^ But if a forfeiture would be incurred by making a lease, and the intent of the parties does not clearly appear, the courts will construe it as an agreement for a lease, and not a lease.'^ And it has been held that if the owner of premises sells and transfers them by written instrument, and there is also a separate agreement between himself and the vendee (founded on a sufiicient consideration other than the sale of the premises) that a third person shall be tenant to the vendee from year to year, this agreement being collateral to the sale, and not a condition thereof, creates such a ten- ancy, though not inserted in the instrument.^ 1 Hallett V. Wylie, 3 Johns. 47; Thornton v. Payne, 5 id. 74; Bac. Abr. tit. Lease ; Maverick v. Lewis, 3 McCord, 211. Morrill v. Mackman, 24 Mich. 279. 2 Co. Lit. 301, b. The term jrranHncludes a rfemise or Zease. Darby u. Callaghan, 16 N. Y. 71, 75. 8 Right V. Thomas, 3 Burr. 1446. * Right v. Proctor, 4 Burr. 2209. 5 2 Bend. 7. That a recital in a will is an estoppel to all claiming under the will, see Denn v. Cornell, 3 Johns. Cas. 174. « Hallett V. Wylie, supra, 1 Rol. Abr. 847, 1. 40; Whitlock v. Horton, Cro. Jac. 92; Evans v. Thomas, id. 172; Doe v. Ashburner, 5 T. R. 163. 'Lady Montague's Case, Cro. Jac. 301. 8 Denn v. Cartright, 4 East, 29. See ante, o. 1, § 1. 170 INSTBUMENT OP DEMISE. [CHAP. V. § 160. Proper Description, -what. — TTncertainty, haw far ex- plainable. — A proper description of the premises constituting the subject-matter of the demise is important, for the purpose of passing all the property intended to be comprised in the lease, as well as for giving effect to the instrument ; since, if it does not ascertain the premises with reasonable certainty, it is void.i But if the description given affords sufificient means of ascertaining and identifying the land which is in- tended to pass, it is all that is required, notwithstanding there may be errors or inconsistencies in some of the particulars.^ It is not, however, generally advisable to particularize too minutely all the various circumstances of name, place, bound- ary, and occupation ; such only as are sufficient for purposes of identity should be introduced ; for, where numerous circum- stances are referred to, they tend to confusion, and questions frequently arise how far they must concur in distinguishing the demised premises, and to what extent words of particular explanation may qualify words of general description.^ But, 1 Dingman v. Kelley, 7 Ind. 717; Bailey v. White, 41 N. H. 337; Kea v. Robson, 5 Ired. Eq. 375. A lessee in possession under the lease will be estopped to set up the want of a suflSeient description therein in defence to an action upon the covenants contained in the lease. Hoyle v. Bush, 14 Mo. App. 408. Where the terms of demise were stated by the land- lord in the following letter, " I propose to let the premises to you as I described them," and stating the rent, to which letter the proposed tenant replied accepting the proposal and suggesting further terms and proposi- tions, it was held that there was not a sufficient description of the premises to constitute a letting. Jarboe v. Mulrey, 49 N. Y. S. C. 525. It is held that a lease with insufficient description may be put in evidence in an action for rent accrued to prove the contract as to rent, and the damages for unlawful detainer. Whipple v. Shewelter, 91 Ind. 114. 2 Worthington v. Hylyer, 4 Mass. 196; Vose ». Bradstreet, 27 Me. 156; Bosworth V. Sturtevant, 2 Cush. 392; Eggleson v. Bradford, 10 Ohio, 312; Campbell v. Johnson, 44 Mo. 247. If the description of property intended to be conveyed includes a number of particulars, all of which are essential to ascertain its identity, no estate will pass except such as will agree with every part of the description ; but, if the tract intended to be conveyed is indicated with reasonable certainty, it will pass, although in some respects the description is erroneous. McLoughlin v. Bishop, 35 N. J. 512. 3 A description of premises, though imperfect, is sufficiently certain if the boundaries can be ascertained with reasonable certainty, especially if possession has been taken. Pierce v. Minturn, 1 Cal. 470. Where land SEC. I.] FOEMAL PAETS. 171 as a general rule, applicable to this as well as to other parts of the contract of lease, all inaccuracies and uncertainties may be explained by evidence outside of the instrument of demise if such evidence neither varies nor contradicts the written contract.^ is leased in gross, there can be no question made that the land was less in quantity than described. Leavitt v. Murray, Wright, 707. 1 Putnam v. Bond, 100 Mass. 58. In construing written documents, regard, as a rule, is to be had to all their parts ; and general words may be restrained by particular recitals. If a lease operates two ways, the one consistent with the intention of the parties, and the other repugnant to it, effect will be given to the intent. Quackenboss v. Lansing, 6 Johns. 49. Although the intent of the parties be in opposition to the strict letter of the contract, it must prevail wheu clearly ascertained from it. Hathaway V. Power, 6 Hill, 453; Tracy v. Albany Exch. Co., 7 N. Y. 474; Marvin V. Stone, 2 Cow. 781; Orphan Asyl. Soc. v. Waterbury, 8 Daly, 35; Browning v. Wright, 2 B. & P. 13; Solly v. Forbes, 4 Moore, 448; Good- title V. Bailey, Cowp. 600. A promise is to be interpreted in that sense in which the promisor knew that the promisee understood it. Barlow v. Scott, 24 N. Y. 40. When two clauses are so inconsistent with or repug- nant to each other, that both cannot stand, the first will be enforced and the latter rejected, but it is the duty of the court to reconcile them if possible. Gould v. Womack, 2 Ala. 83; Herrick v. Hopkins, 23 Md. 217; Havens t'. Dale, 18 Cal. 359 ; Daniel v. Veal, 32 Ga. 589. The granting clause generally controls. Webb v. Webb, 29 Ala. 588. Where a material word appears to have been omitted in a lease by mistake, and other words cannot have their proper effect unless it be introduced, the lease must be construed as if that word were inserted, although the particular passage where it ought to stand conveys a suflftciently distinct meaning without it. White V. Eagan, 1 Bay, 247; Wight v. Dickson, 1 Dow. 141. A sweeping clause, at the end of a particular specification, will not pass any property of a different nature from that particularly set forth. Smith v. Strong, 14 Pick. 128; Barnard o. Martin, 5 N. H. 536. An instrument of demise agreed to let for a year, but most of the subsequent stipulations were inapplicable to a tenancy determinable by a notice to quit; it appeared on its face to have originally contained words creating a tenancy from year to year, which had been struck out; such words were allowed to explain the intention of the parties to have been to lease for a year only;, and it was held that the terms inapplicable to such a tenancy must be expunged, or construed as only applicable in case the tenancy should con- tinue. Strickland v. Maxwell, 4 Tyrw. 346; Hull v. Fuller, 7 Vt. 100. It has been held that an indefinite description in a lease might be supplied from an accurate description of the same premises contained in an assign- ment of the leasehold interest. Hunt v. Campbell, 83 Ind. 48. 172 INSTRUMENT OP DEMISE. [CHAP. V. § 161. Incidents pas8 by the Grant. — 111 general, the grant of a thing passes the incident as well as the principal, though the latter only is mentioned ; and this effect cannot be avoided ■without an express reservation.^ Thus, the lease of a building passes everything belonging to it, or which is essential to its enjoyment ; and if of a messuage, or mansion, includes not only the dwelling-house, but all the out-houses, barns, stables, cow-house, and dairy, if they be parcel of the mansion, al- though they be not under the same roof, or lie contiguous to \t? A garden is parcel of a house, and passes without the addition of the word appurtenances.^ By the grant of a piece of ground, a necessary right of way to it, over the grantor's land, also passes. So a grant of trees carries a power to enter on the land, and cut and carry them away.* The word land passes all that grows or is built upon its surface ; including 1 Pattison v. HuU, 9 Cow. 747 ; Rood v. N. Y. & E. R. R., 18 Barb. 80; SkuU V. Glennister, 16 C. B. N. S. 81. •^ Kerslake v. White, 2 Stark. 508; Riddle v. Littlefield, 53 N. H. 513. The lease of a hotel, with the furniture therein, embraces whatever goods, furniture, utensils, and other appendages, are necessary or oonvetiient for carrying on the business. Ball v. Golding, 27 Ind. 173. A lease of a ground floor abutting on a yard also belonging to the lessor and forming part of the same tenement, carries the right to have the windows looking on the yard remain unobstructed. Doyle v. Lord, 64 N. Y. 432, see also Riviere v. Bower, Ryan & M. 24. And a tenant having a right to light and air, as against his co-tenant, the landlord's consent to the co-tenant's obstruction of the same cannot justify such obstruction. Spies v. Dam, 54 How. Pr. 293. It is the general rule that an easement will enure to the owners of the several parts into which the dominant estate may be divided; so that the burden on the servient estate is not enhanced. Outerbridge v. Phillips, 13 Abb. (N. C.) 117. But a tenant of one room has not an exclusive right to the outer wall. Pevey v. Skinner, 116 Mass. 129. » Bettisworth's Case, 2 Co. 32; Plow. 171; 1 Inst. 5, b. The general principle that a lease of land carries with it the minerals upon the land, applies only where the contract relates to the land generally, without exception or reservation. Shaw v. Wallace, 1 Dutch. 453. * Per Best, C. J., Holmes v. Goring, 2 Bing. 83 ; Clarke v. Cogge, Cro. Jac. 170. On a lease of premises together with all ways appertaining, or with any parts thereof used or enjoyed, a right of way passes, although not expressly mentioned, upon proof that it is used with ths premises at the time the lease is granted. Kooystra v. Lucas, 5 B. & A. 830. SEC. I.] FORMAL PARTS. 173 buildings, trees, fixtures, and fences.* Kfarm includes houses and lands; while &^grange will include not only barns, but stables and out-houses used for the purpose of husbandry.''' But the demise of a house or barn, without other words to extend its meaning, will pass no more land than is necessary for its complete enjoyment.^ In some cases, a grant of the produce of the soil will pass the soil itself ; thus pasture will be taken not only as the privilege of feeding on the land, but as the laud itself. So the grant of a wood will pass the soil as well as the timber. And where the issues and profits of the land were demised for a term of years, the land itself was held to pass ; for to have the issues and profits was said to be the same thing as to have the land itself.* § 162. But not the indirect Incidents. — This principle, how- ever, is to be understood as applying only to such things as are directly incident to the grant, and necessary to the enjoyment of the thing granted ; therefore an easement which does not naturally and necessarily belong to the premises will not 1 Canfleld v. Foord, 28 Barb. 336; Green v. Armstrong, 1 Den. 550; Mott V. Palmer, 1 N. Y. 564. The word "land," when used alone in Dutch deeds, means arable land only. Van Gorden v. Jackson, 5 Johns. 440. A conveyance of the fee of the land does not pass growing trees previously sold. Warren v. Leland, 2 Barb. 613. " Co. Lit. 4, a; Burton v. Brown, Cro. Jac. 648; Isham v. Morgan, 9 Conn. 374; In re N. Y. C. R. E,. 50 N. Y. 414. Seventy acres, lying and being in the southwest corner of a section, is a good description, and the land will lie in a square. Walsh v. Ringer, 2 Ohio, 327; and see Cockrell V. McQuinn, 4 T. B. Mon. 63. ' Bennet v. Bittle, 4 Rawle, 339. A lease of a " building " conveys the land under the eaves if owned by the lessor, and his erection of a wall there is an eviction. Sherman v. Wilkins, 113 Mass. 481. And a lease of a " store" includes the land under it and to the middle of a private way in the rear, the fee of which is in the lessor. Hooper v. Farnsworth, 128 id. 487. Where machinery is used on the demised premises, and lessor is to furnish power, a blast on lessor's premises connected with the machinery, will be treated as part of the leased property, and not as under a mere license. Thropp v. Field, 11 C. E. Green, 82. But adjoining buildings, though necessary and used with demised premises, do not pass unless particularly described. Ogden t>. Jennings, 62 N. Y. 526. * Parker v. Plummer, Cro. El. 190; Co. Lit. 4, 6. 174 INSTRUMENT OF DEMISE. [CHAP. V. pass.i And if a man, upon a lease for years, reserves a way through the house of a lessee, to a house in the rear, he can only use it at reasonable times, and upon' request.^ A way of necessity is also limited by the necessity which created it; and when the necessity ceases, the right of way ceases. If, therefore, at any subsequent period, the party entitled to such a way can, by passing over his own land, approach the place to which it led, by as direct a course as he would have done by using the old way, the way ceases to exist as of necessity .^ § 163. Certain Description not controlled. — Construction. — Whether certain premises are parcel of and included under those demised, does not necessarily depend upon the question of boundaries, as expressed in the lease, but turns rather upon the intention of the parties, which, if ambiguous, is, as we have said, always matter of evidence.* If, however, the grant is in its terms certain, no evidence can be permitted to vary it. But it frequently happens that the parcels de- mised are so loosely described that unless such evidence is admitted, great inconvenience may result ; if, however, they can be generally identified, it is sufficient, though all the particulars may not be true. As in a demise of certain specified meadows containing ten acres, which are afterwards found to contain twenty acres, all the meadows pass.^ But where a demise is by indenture, the parties are estopped from alleging that the condition of the premises was the same as described in the lease ; as, for instance, that land described as meadow was such.^ So natural, visible, or arti- ficial boundaries will prevail over specified courses and dis- tances ; since these are less certain than the former.'^ As in 1 Manning r. Smith, 6 Conn. 289. 2 Per Parke, B. ; Sand v. Kingscote, 6 M. & W. 189. * Holmes v. Goring, 2 Bing. 76; Wilson v. Bagshaw, 5 Mann. & U. 448; Osbom v. Wise, 7 C. & P. 761. * Trimble v. Ward, 14 B. Mon. 8. 6 Doe V. Burt, 1 T. R. 761; Doe v. Jersey, 3 B. & C. 870; Gary v. Thompson, 1 Dale, 35. « Birch V. Stephenson, 3 Taunt. 469. ' Doe V. Thompson, 5 Cow. 371; Jackson v. Widger, 7 i(f.723; Woods V. Kennedy, 5 T. B. Mon. 174; Mayhew v. Norton, 17 Pick. 857; SEC. I.] FORMAL PARTS. 176 the demise of a certain tract of land on a creek, supposed to contain twenty acres more or less, then in the possession of a certain person, it was held that the lease was not limited to the twenty acres, but extended up to the creek of which the party was in possession.^ But if the land is described in the instrument by reference to certain known monuments, such a description must prevail, even to the exclusion of an under- standing between the parties that the lands shall be bounded by certain other monuments.^ Where the quantity is men- tioned, in addition to a description of the boundaries of land, without any express covenant that the land contains that quantity, the whole must be taken together and considered as mere description.^ Massengill v. Boyle, 4 Humphrey, 205. A grant of land bounded on tide- water, extends only to ordinary high-water mark. Wiswall v. Hall, 3 Paige, 313; Gould v. H. R. R. R., 6 N. Y. 522. If bounded by a river where the tide does not ebb and flow, the grant extends to the middle of the stream. Comm'rs v. Kempshall, 26 Wend. 404; Child v. Starr, 4 Hill, 369. If it is described as running along the shore or the bank of the river, the grant is restricted to the margin at high water. Storer V. Freeman, 6 Mass. 435; Hatch v. Dwight, 17 id. 298; Kingman v. Spar- row, 12 Barb. 201 ; if, however, it be to the bank of a stream which is not navigable, the grant will extend to the thread of the stream, Jackson v. Louw, 12 Johns. 252, and the lessee will be entitled to the accretions caused by the stream's retreating, or by changes in its current during the term. Cobb v. Lavalle, 89 111. 331. But see Halsey v. McCormick, 13 N. Y. 296. » Hall V. Powel, 4 S. & R. 456; Shaw v. Clements, 1 Call, 438; Bustin V. Christie, Tayl. 116; Baker v. Seekright, 1 Hen. & M. 177. The words more or less must be confined to a reasonable quantity. In one case it was held that they could not include so large an amount as thirty acres. Day V. Flynn, Owen, 133. 2 Clark V. Bayard, 9 N. Y. 183; Davis v. Rainsford, 17 Mass. 207. » Powell V. Clark, 5 Mass. 355. See Hunt v. Campbell, 83 Ind. 48, as cited ante, § 160. Where a person lets to others his farm and farming- house thereon, there is no restriction as to the right of possessing all other houses on the farm; for the lease of the farm embraces all buildings upon the land, whether specified or not. Hay v. Cumberland, 25 Barb. 594. If land is conveyed by metes and bounds, and the description at its close contains an assertion of the quantity, such assertion is matter of descrip- tion only, and not a covenant of quantity. Boat v. Puff, 3 Barb. 353 ; Mann v. Pearson, 2 Johns. 37 ; Howe v. Bass, 2 Mass. 380 ; Powell v. Clark, supra; Jackson v. M'Connell, 19 Wend. 175; Belden v. Seymour, 176 rNSTRTTMENT OF DEMISE. [CHAP. V. § 164. Description by Reference. — Parol Evidence. — Mistakes not fatal. — If the description refers to another deed, it may be made sufficiently certain by the reference.^ Or if imper- fect, and yet sufficient appears to point inquiry to the true locality and boundary of the land, the deed is not void for uncertainty, but the defect may be cured by parol evidence, and identity thus given to the premises intended to be con- veyed.2 And where particulars are set forth, sufficiently cer- tain to designate the thing intended to be demised, the addition of circumstances which are false or mistaken will not frustrate the deed ; as if the words " with the dwelling-house thereon," be inserted in the description, when, in fact, there is no dwelling-house on the premises, it will be considered merely a false circumstance, which does not control the rest of the description, or defeat the conveyance.^ An indorsement upon a lease, written at the time of its signing and delivery, is deemed to be incorporated in it, and may, therefore, introduce any matter, whether of description or otherwise, tending to 8 Conn. 19; Smith v. Dodge, 2 N. H. 303; Call v. Barker, 8 Fairf. 320; Large v. Penn, 6 S. & R. 488. 1 Allen V. Bates, 6 Pick. 460. Punctuation will be resorted to, in order to settle the meaning of an instrument, after all other means fail. Ewing V. Burnet, 11 Pet. 41. 2 Jenkins v. Bodley, 1 Smedes & M. Ch. 838; Seaman v. Hogeboom, 21 Barb. 398. The general rule is that uncertainty or defects in the descrip- tion of the property do not render a deed void if that result can be avoided by construction ; courts will sustain it, if practicable, by reconciling or rejecting the necessary particulars. Hull v. Foster, 7 Vt. 100 ; Wright V. Cochran, 3 Iowa, 507; Harvey v. Mitchell, 31 N. H. 575; Wing v. Burgis, 12 Me. 111. An evident omission may be supplied by construc- tion. Hoffman v. Kiehl, 27 Mo. 554. A description in a lease is held not necessarily imperfect because a surveyor may be unable to locate the premises by reference to the description alone. Coppinger v. Armstrong, 8 Bradw. (ni.) 210. 3 Jackson v. Clark, 7 Johns. 217; Jackson v. Marsh, 6 Cow. 281. A lease of a lot "describing it as number 2, but adding metes and bounds, descriptive of lot number 4, which the lessor did not own, the tenant tak- ing possession of the former, is a good lease of number 2. Lush v. Druse, 4 Wend. 313. Where a mining lease provided for the lessee's mining in a lot described by metes and bounds, and after the first lot was exhausted, "in another lot adjacent, ' ' the contract as to the last lot was held not void for uncertainty. Iron Co. v. Stevens, 5 Lea, 468. SEC. I.] FORMAL PARTS. 177 qualify the provisions contained in the body of the instrument, or even to defeat it by way of condition.^ Even separate in- sti'uments, executed at the same time, relating to the same subject-matter, may be construed and taken together, as different parts of the same agreement.^ But a written declar- ation indorsed on a lease, after its execution by the lessor, that he intended to demise a greater interest than the lease expresses, is inoperative to convey any interest.^ Nor will any other indorsement made upon an instrument under seal after its execution in any manner control or affect the original deed, unless such indorsement be under seal also ; for a deed is incapable of modification or discharge, but by an instrument of as high a nature as itself.* § 165. Fraudulent Alterations, Effect of. — The fraudulent alteration of an instrument, after its execution and delivery, by one claiming a benefit under it, avoids it so far as respects any remedy by action upon it ; and this, whether the altera- tion be material, or of a part quite immaterial.^ But it is 1 Flint V. Brandon, 4 B. & P. 73; Lyburn ». Warrington, 1 Stark. 162; Emerson v. Mun-ay, 4 N. H. 171. 2 Hills V. Millar, 3 Paige, 254; Linsley v. Tibbals, 40 Conn. 522. » Kussell V. Scott, 9 Cow. 279; Goodright v. Mark, 4 M. & S. 30; Williams v. Handley, 3 Bibb, 10. * Goodright v. Mark, supra. A lease was extended by an agreement indorsed upon it, varying its terms ; and, subsequently, after the expira- tion of the original term, another extension of " the within lease " was indorsed: held, that it extended the modified lease. Cram v. Dresser, 2 Sandf. 120. = Pigot's Case, 11 Co. 266; Master v. Miller, 4 T. B,. 320 ; Boston v. Benson, 12 Cush. 61; Davis v. Coleman, 7 Tred. 424; if unexplained, Williams v. Starr, 5 Wise. 534; Woodworth e. Bank of America, 19 Johns. 391. If what is written upon or erased from the instrument does not alter its meaning or tend to mislead, it will not amount to an alteration: Morrill v. Otis, 12 N. H. 466; Nichols v. Johnson, 10 Conn. 192; unless made fraudulently : Moye v. Herndon, 30 Miss. 110; Huntington v. Finch, 3 Ohio, 445. Blanks in a sealed instrument cannot be filled in after its delivery, by another person, except by the authority of the grantor him- self under seal. Co. Lit. 171; Shep. Touch. 54; 4 Vin. Abr. Blank.; Com. Dig. Fait A., p. 1. There are, however, cases where, in the same written instruments, there are entirely disconnected obligations, or state- ments, wholly independent of each other; where the alteration or inser- tion of one, after the others have been executed, will not affect it. Such VOL. I. — 12 178 INSTRUMENT OF DEMISE. [CHAP. V. otherwise if the alteration is made by a stranger, without the consent of the party in interest.^ The application of this rule, however, does not affect the title to real estate, for neither the subsequent alteration nor destruction of a deed will divest an estate which has once become vested by a transfer of possession ; although the covenants contained in such a deed may be thereby rendered void.^ Yet, where an estate cannot have existence but by deed, and the deed creating the estate is fraudulently altered or destroyed by the party possessing the estate, the deed is void as to any remedy in favor of the fraudulent party, and the estate which he derived under it is also gone.^ But as to an estdte which may exist without writing, such as a term of years, a rent, or other incorporeal hereditament, a fraudulent alteration or cancellation will destroy the instrument, with the covenants contained in it, but not the estate ; yet, as a rent-charge can only be created by deed, a fraudulent alteration of such a deed will destroy both the deed and the estate.* Where, however, a rent was created by indenture, with a counterpart, each of the parts being executed by both parties, and one was delivered to and possessed by each, and the grantee of the rent altered his deed in a material part, it was held that though a deed is essential to a rent as lying in grant, neither the remedy nor the estate of the grantee was gone, for although the alteration of the grantee's deed avoided that, yet both deeds being originals, there was a good deal in the hands of the grantor to support both the contract and the estate.^ was the case of Doe v. Bingham, 4 B. & A. 672; WooUey v. Constant, 4 Johns. 54. 1 Rees V. Overbaugh, 6 Cow. 746; Malin v. Malin, 1 Wend. 625; Nichols V. Johnson, supra. 2 Woods V. Hildebrand, 46 Mo. 2S4. 8 AVallace v. Harmstad, 44 Pa. St. 492; Wright v. Kelly, 4 Lans. 57. The addition of a word which the law would supply is not au alteration. Hunt V. Adams, 6 Mass. 519. * Arrison v. Harmstad, 2 Pa. St. 191. The presumption is that any material alteration, not noted in the attestation clause, has been made since execution. The party claiming under the deed must show the con- trary, or otherwise explain the alteration. Montag v. Linn, 23 111. 551 ; Acker v. Ledyard, 8 Barb. 514; Ely v. Ely, 6 Gray, 489. 5 Lewis V. Payn, 8 Cow. 71 ; Bolton v. Carlisle, 2 H. Bl. 259 ; and see SEC. II.J ITS EXECUTION. 179 SECTION II. THE EXECUTION OP A LEASE. § 166. 'What constitutes. — Seals. — The execution of a lease consists in its signature and delivery to the lessee, if it be a parol contract ; or in its sealing and delivery, if it be by deed. We have examined the requisites of a sufiBcient signature to an agreement to give a lease (§ 36), and the remarks there made will be found applicable to the signature of the lease itself. When a seal is required, it must, in New York,i New Jersey ,2 and the New England States,^ be, according to the common-law form, which is strictly an impression upon wax, wafer, or other tenacious substance capable of being im- pressed.* But in practice, the seal of an individual is usually a plain piece of paper, without any device, attached to the deed with a wafer ; while the seal of a corporation exhibits some device to give it a distinctive character. A mere stamp on the paper upon which the instrument is written, whether made by an individual or by a corporation, without the use of wax or wafer, is insufficient ; ^ nor will an ordinary piece Davidson v. Cooper, 13 M. & W. 343. Title passes by the delivery of a lease, and will not be revested in the lessor by an alteration of the lease by the lessee. Smith v. McGowan, 8 Barb. 404. Held otherwise in Bliss V. Mclntyre, 18 Vt. 466. ^ Warren v. Lynch, 5 Johns. 239. In New York the seal of a corpora- tion may be made by impression directly on the paper. Laws 1848, p. 305. ^ Perrine v. Cheeseman, 6 Halst. 174. 8 4 Kent, Com. 445. * Beardsley v. Enight, 4 Vt. 471. According to Lord Coke a seal is wax with an impression. Inst. 169. 5 Bank of Rochester v. Gray, 2 Hill, 227 ; Farmers' Bank v. Haight, 3 id. 493. Except in New York, where the seal of a corporation or of a public officer may be stamped on the paper, without wax or wafer. Laws of 1848, p. 305. In the case of Ross v. Bedell, 5 Duer, 462, the learned judge expresses the opinion that an actual seal, stamped upon paper of sufficient tenacity to receive and retain the impression, is a seal in the technical sense, and within the strict definition of the common law ; the case, however, seems to refer to the sealing of a commercial obligation, and not to that of an instrument for passing an estate in land. To the 180 INSTRUMENT OF DEMISE, [CHAP. V. of wax, without an impression upon it, sufl&ce ; for mere wax, without a character, is no seal.^ In Pennsylvania, Indiana, Ohio, Wisconsin, Delaware, Florida, Michigan, Minnesota, Oregon, Missouri, Texas, Illinois, Mississippi, Georgia, and North Carolina, a mere flourish with the pen, at the end of the name, a circle of ink, or a scroll, is allowed in place of a seal, when it appears to have been intended as such.^ In Virginia and Alabama, it must appear in the body of the deed that there was an intention to substitute the scroll for a seal.^ In Maryland a scroll has always been considered a seal, and it need not appear that the party intended to adopt it ; * while in South Carolina it is good, unless the intention to seal in a more formal manner can be presumed from the face of the instrument.^ Kentucky has substituted a scroll for a wax or wafer impression, by statute.® In all the later decisions, much force is given to the attestation clause. If by this it appears that the instrument was designed to be a sealed in- strument, and there is any thing affixed to it, or connected with it which, by law, may be regarded as a seal, it will, primd facie, be taken to be a deed ; and proof of the party's signature by the subscribing witnesses, if there be such, or by any other legitimate mode, will be presumptive evidence that he sealed it.^ As to the number of seals required to a deed, there appears to be no necessity for a multiplicity of them ; nor that, when executed by several persons, each person shall same effect is Curtis v. Leavitt, 15 N. Y. 89 ; Pillow v. Koberts, 13 How. 472. So in Massachusetts, a coi:poration may seal by an impression made on paper without wax. Gen. Stat. c. 3, § 7; Hendee v. Pinkerton, 14 Allen, 381, 388; Roy. Bank v. Gr. June. R. R., 100 Mass. 464. But a mere printed seal not impressed on the paper is not a good corporate seal. Bates V. Bost. & N. Y. R. R., 10 Allen, 251; though otherwise in Maine. Woodman v. York & C. R. R., 50 Me. 549. 1 Perry v. Price, 1 Mo. 558; 2 Bl. Com. 297; Warren v. Lynch, 5 Johns. 239. » Alexander v. Jameson, 5 Binn. 288; Bradfield v. McCormick, 3 Blackf. 161; Jones v. Logwood, 1 Wash. 42. a Austin v. Whitlock, 1 Munf. 487; Lee v. Adkins, 1 Minor, 187. * Trasher v. Everhart, 3 Gill & J. 284; Stabler v. Cowman, 7 id. 284. 6 Relph ». Gist, 4 McCord, 267. ^ Bohannons v. Lewis, 8 T. B. Men. 376. ' Supra, and see Ball v. Taylor, 1 C. & P. 417. SEC. n.] ITS EXECUTION. 181 have a separate seal ; for several persons may bind themselves by one seal, if it appears that the seal affixed was intended to be adopted as the seal of each of the parties.^ § 167. Delivery, wbat constitutes. — A deed takes effect so as to vest the estate or interest to be conveyed only from its delivery to the party himself, or to a third person, authorized to receive it.^ An actual manual delivery of the instrument is not necessary, when it is understood by all parties that de- livery is made. It is complete when the grantor has put it beyond his power to revoke or reclaim the instrument.^ If it requires the approval of a third person to render a delivery valid, it becomes operative from the time the approval is given, although it may have been executed before,* Almost any manifestation of the party's intention to deliver, if accom- panied by an act impoi'ting the same, will constitute a de- livery. If the date be false or impossible, the delivery ascertains the time when the instrument is to take effect ; but it will be intended to have been delivered on the day it bears date, unless the contrary is proved ; ^ notwithstanding it was 1 Mackay v. Bloodgood, 9 Johns. 285; McDill v. McDill, 1 Dall. 63; Tarborough v. Monday, 2 Dev. 493; Ball v. Dunsterville, 4 T. K. 313; Stabler v. Cowman, supra ; Townsend v. Hubbard, 4 Hill, 351 ; Univ. of Vt. V. Joslyn, 21 Vt. 52. This last case determines that the intention may be drawn from the lease itself in the absence of any other evidence. » Jackson v. Hill, 5 Wend. 532; Shep. Touch, 57 ; 4 Cruise, § 52. A return or redelivery of the deed to the grantor does not revest the title: Jackson v. Anderson, 4 Wend. 474; Roe v, York, 6 East. 86; Jackson V. Chase, 2 Johns. 84; Jackson v. Wood, 12 id. 78; and, if it has been once delivered, so as to take effect, a redelivery is of no effect, and cannot limit its operation: Verplanck v. Sterry, 12 Johns. 536; Kellogg V. Rand, 11 Paige, 59'. A subsequent pledge of the deed with the grantor merely gives him an equitable lien. Jackson v. Parkhurst, 4 Wend. 209. » Sorngham v. Wood, 15 Wend. 545; Brown v. Austen, 35 Barb. 341; Maynard v. Maynard, 10 Mass. 456 ; Doe v. Knight, 5 B. & C. 671. ^ Co. Lit. 36; Church v. Gilman, 15 Wend. 656; 1 R. S. 738. 6 2 Bl. Com. 307; Goodrich v. Walker, 1 Johns. Cas. 250; Trustees ». Robinson, Wright, 436. Since the Revised Statutes of 'New York, the presumption that a deed was delivered on the day it bears date does not prevail in respect to deeds not acknowledged or proved, and which have no subscribing witness. And such presumption never obtains where the 182 INSTRUMENT OF DEMISE. [CHAP, V. not acknowledged until afterwards.^ There can be no de- livery, howeyer, without an acceptance, either express or im- plied : ^ but the assent of the grantee to its acceptance may be presumed from the beneficial nature of the transaction ; ^ or where the deed is shown to have been drawn and executed at his request.* § 168. Inferred from Record and other Circumstances. — It is not essential to a valid delivery that the lessee be present, and that it be made to, or accepted by, him personally at the time of the alleged delivery ; for his acceptance may be pre- sumed from many other circumstances besides those above mentioned.^ Thus, the registry of a deed, at the request of the grantor, for the use of the grantee, and the grantee's sub- sequent assent thereto, will be equivalent to an actual delivery of the same.^ But the placing of the deed on record is only primd facie evidence of its delivery ; and not even that, if there does not appear to have been some assent to it on the part of the grantee ; ^ but a subsequent possession of the deed by the grantee would be evidence of its delivery to him.^ deed is proved to have been in the hands of the grantor, at a period sub- sequent to its date, Elsey v. Metcalf , 1 Den. 323, or where the certificate of acknowledgment before the subscribing witnesses is of a later date. Mclntyre v. Strong, 48 N. Y. 1§7. 1 McConnell v. Brown, Litt. Sel. Ca. 459. 2 Jackson v. Kichards, 6 Cow. 617; Jackson v. Phipps, 12 Johns. 421; Shep. Touch. 57. * Jackson v. Bodle, 20 Johns. 187; Belden v. Carter, 4 Day, 66; Wheelright v. Wheelright, 2 Mass. 447; Maynard v. Maynard, 10 id. 456. Although the law will presume the acceptance of a lease, executed and delivered for the use of the lessee, if beneficial to him, yet this ques- tion is to be determined, not from the face of the instrument merely, but from the nature and circumstances of the entire transaction. Camp v. Camp, 5 Conn. 300. And see Hayes v. Lawver, 83 lU. 292; McFarlane V. Williams, 107 id. 33 ; Twombley v. Monroe, 136 Mass. 464, where the lease appears to have been executed by the lessor for the purpose of dis- possessing the tenant at will in possession. * Church V. Gilman, 15 Wend. 656 ; Clark v. Gordon, 121 Mass. 380. 5 Hatch V. Hatch, 9 Mass. 307; Belden ». Carter, supra. « Hedge v. Drew, 12 Pick. 141 ; Elsey v. Metcalf, 1 Den. 323. ' Chess V. Chess, 1 Penn. 32 ; Gilbert v. N. A. F. I. Co. 23 Wend. 43. 8 Maynard v. Maynard, 10 Mass. 456 ; Rathbun v. Rathbun, 6 Barb. 98. SEC. n.] ITS EXECUTION. 183 The fact of putting a deed in the post-office, directed to the grantee, has been held to be sufficient evidence of a delivery ; ^ but merely sending it to a third person, or depositing it in the clerk's office for record, is not sufficient, unless it is also shown to have been done for the grantee's use.^ And where a registered deed, purporting to have been delivered, is lost, the presumption is that it was delivered ; but this presump- tion will be rebutted if the original deed is produced by the grantor, or if neither the grantee nor any person on his be- half, was present at the attestation.^ The non-delivery of a deed may be shown by parol evidence ; and the grantee is an admissible witness for that purpose.* But its delivery can- not be proved by showing declarations of the grantor's inten- tion to deliver prior to its delivery, and of the subsequent possession of the land by a tenant, with the assent of a grantor.^ And there can be no valid delivery of a deed after the grantor's death ; nor, as we have said, of one which has been executed in blank, to be, filled up afterwards by the person to whom it was delivered.^ § 169. Delivery as an Escrow, effect of. — A lease may also be delivered as an escrow, which means a conditional delivery to a stranger, to be kept by him until certain conditions shall have been performed, and then to be delivered over to the grantee. Until the condition is performed and the deed de- livered, the estate does not pass, but remains in the grantor ; " but when the condition has been performed, and the deed is finally delivered, it will take effect from the time of its first 1 McKinney v. Bhoads, 5 Watta, 343. 2 Elsey V. Metcalf, supra. « Powers V. Russell, 13 Pick. 69. * Eoberts v. Jackson, 1 Wend. 478; Jackson v. Richards, 6 Cow. 617. But evidence will not be admitted to show that the delivery was in fact conditional, when it appears that the lease was executed and deliv- ered by the lessor, upon a parol promise by the lessee that in a few days he would make out another lease to the satisfaction of the lessor. Brownell V. Haskell, 22 Pick. 810. 6 Hale V. Hills, 8 Conn. 39. See ante, § 146 ; Jackson v. Leek, 12 Wend. 105. ' Green v. Putnam, 1 Barb. 500; Jackson v. Richards, 6 Cow. 619. 184 INSTRUMENT OP DEMISE. [CHAP. V. delivery ; ^ notwithstanding one of the parties may have died before the condition has been performed.^ And if it be duly delivered in the first instance, it will operate, although the grantee afterwards suffers it to remain in the custody of the grantor .3 But there cannot be a delivery to the grantee him- self as an escrow, to take effect upon the performance of a condition not expressed in the deed; and if so delivered, it will at once become absolute in law.* It will not, however, take effect as an operative interest, although left in the hands of the grantee, if it was only left for the purpose of being sent to a third person to remain in escrow.^ Neither can it be de- livered to a third person to be kept during the pleasure of the parties, and made subject to their further order : such a de- livery is not an escrow, but a mere deposit.^ And a deed act- ually delivered by an agent to one for whom it is made is no longer an escrow, though placed. in the hands of such agent under an agreement that it should be considered an escrow.'' But a deed delivered as an escrow will not take effect until the condition is performed, except where the operation of the conveyance would be absolutely defeated, unless the first de- livery should be permitted to have an effect.^ § 170. Witnesses. — The execution of a lease hy parol is complete without a witness ; but when the lease is by deed, 1 Ruggles V. Lawson, 13 Johns. 285; Jackson v. Catlin, 2 Johns. 248; Bushell V. Pasmore, 6 Mod. 217; 3 Prest. Abstr. 104. 2 Hunter v. Hunter, 17 Barb. 25, 82; Shep. Touch. 59. 8 Souverbye v. Arden, 1 Johns. Ch. 240; Doe v. Knight, 5 B. & C. 671. Where the deed of A. and the note of B. were deposited by them with C. to be delivered in exchange when both parties should direct, it was held to be a delivery in escrow. It is not necessary that the term escrow should be used when a delivery is made to a third person, in order to prevent its being absolute; the intent of the parties will prevail. Clark V. Gifford, 10 Wend. 310. « Arnold v. Patrick, 6 Paige, 310; Worrall v. Mumm, 5 N. Y. 229; Lawton v. Sager, 11 Barb. 349. A deed delivered to the grantee is not held as an escrow ; such delivery either takes effect absolutely, or it is void and works nothing. Braman v. Bingham, 26 N. Y. 483. * Gilbert v. N. A. Ins. Co., supra. ^ James v. Vanderheyden, 1 Paige, 385. ' Simonton's Estate, 4 Watts, 180. * Jackson v. Bowland, 6 Wend. 666. SBO. II.] ITS EXECUTION. 185 two witnesses are required for its valid execution, in New- Hampshire, Vermont, Khode Island, Connecticut, Ohio, Geor- gia, Illinois, Kentucky, and Indiana. In Delaware, Tennessee, Mississippi, Maryland, and South Carolina, two witnesses are necessary where the deed is to be proved by witnesses. But by the common law which prevails in Pennsylvania, Massa- chusetts, and Kentucky, as well as in New York, no attesting witness is necessary to the validity of a deed.^ In New York, proof of its execution, made by one witness, or its acknowledgment by the party before the proper officer without a witness is sufficient to entitle it to be recorded.^ Formerly a proper revenue stamp was also necessary, and if omitted at the time of execution with intent to defraud, the lease was invalid.^ Where several parties join in one agreement, only one stamp is necessary.* And if a material alteration is made in a lease after it has become an available document, or in an agreement for a lease which has been already stamped, it must be restamped,^ § 171. Record, effect of. — The statute laws of every State in the Union require also that all transfers of land, including 1 4 Kent, Com. 449 ; Wicks v. Caulk, 5 Har. & J. 36 ; Long v. Kamsey, 1 S. & E. 72 ; Sicard v. Davis, 6 Pet. 124. 2 1 N. T. K. S. 738, § 137. " Every grant of a freehold estate shall be subscribed and sealed by the person from whom the estate is intended to pass, &c. ; and, if not duly acknowledged previous to its delivery, its execution and delivery shall be attested by at least one witness, or, if not so attested, it shall not take effect as against a subsequent purchaser or incumbrancer, until so acknowledged." A deed without any witness or acknowledgment is good as against the grantor. See 2 Bl. Com. 296 ; Champl. & St. L. R. K. v. Valentine, 19 Barb. 484. * Holyoke Machine Co. v. Franklin Paper Co., 97 Mass. 150 ; Vorebeck V. Eoe, 50 Barb. 302 ; Blunt v. Bates, 40 Ala. 470, 475. But this provi- sion has been held operative and applicable only in the United States courts, — Carpenter v. Snelling, 97 Mass. 452 ; Lynch v. Morse, id. 458, — and is now abolished. in this country by act of 1872. Under the English Stamp Act, an unstamped lease is not on that account invalid ; but it cannot be read in evidence if required to be produced in court. Buxton V. Cornish, 12 M. & W. 426. * Davis V. Williams, 13 East, 232. 6 Keed v. Deere, 7 B. & C. 261. 186 INSTRUMENT OF DEMISE. [CHAP. V. leases, except certain minor chattel interests, shall, in order to secure the priority to which they may be entitled, he re- corded in the county in which the premises are situated, after being first acknowledged or proved ; and, if not so recorded, they are void as against any subsequent incumbrancer or pur- chaser of the same premises, in good faith, and for a valuable consideration, whose conveyance shall be first duly recorded.^ Actual notice of a conveyance, however, is equivalent to the record of it.^ And there is nothing in any of the statutes to invalidate a lease which has not been recorded, as between the parties themselves. The statutes were intended to protect hond fide purchasers of property against secret or fraudulent conveyances, but they give this protection only to such per- sons as will record their conveyances, and thus warn others 1 Thus in New York, all conveyances of land including leases of three years and upwards, must be recorded. 1 R. S. 762, § 38. In Massachu- setts, leases of seven years and upwards, Gen. Stat. c. 89, §§ 1 & 3. In Maryland an unrecorded lease of more than seven years is held to be void. Anderson a. Critcher, 11 Gill & J. 450. In Vermont a lease of lands for more than one year when not acknowledged or recorded is ineffectual to hold such lands against any but the grantor and his heirs. G. S. c. 65, § 7. Buswell ». Marshall, 51 Vt. 87. Where a lease for a term of years has been duly recorded it has priority over a mortgage in the hands of an assignee and executed subsequent to the recording of the lease ; although the assignment was made after a decree of foreclosure. Enos v. Cook, 65 Cal. 175. 2 Tuttle u. Jackson, 6 Wend. 213 ; State of Conn. w. Bradish, 14 Mass. 296 ; Porter v. Cole, 4 Greenl. 20 ; Tart v. Crawford, 1 McCord, 265 ; West V. Randall, 2 Mason, 206 ; Colby v. Kenniston, 4 N. H. 262 ; Weaver v. Coumbe, 15 Neb. 167; Jackson v. Winslow, 9 Cow. 13 ; Jack- son V. Phillips, id. 94 ; Jackson e. Post, id. 120. In Pennsylvania, leases for less than twenty-one years where the actual possession and occupation go along with the lease are excepted from the operation of the recording acts. Marsh v. Nelson, 101 Pa. St. 51. That a judgment creditor is not a purchaser within the purview of the statute, see Den v. Richman, 1 Green, 55. In New York, the term "purchaser " is construed to em- brace every person to whom any interest in real estate is conveyed for a valuable consideration, including every assignee of a lease or mortgage. 2 R. S. 762, § 37. The rule which makes unrecorded leases binding upon the parties is applied to leases which want the acknowledgment, Johnson v. Phoenix Mut. L. Ins. Co., 46 Conn. 92, and to assignments of leases. Stillman v. Harvey, 47 id. 26. SBC. II.] ITS EXECUTION. 187 from taking a subsequent conveyance of property which has already been conveyed to them.^ 1 Jackson v. Post, supra; Jackson v. West, 10 Johns. 466. In some of the States a period is allowed within which deeds must be recorded ; and, according to Chancellor Kent, 4 Com. 457, a year is allowed in Dela- ware, Tennessee, Georgia, and Indiana ; eight months in Virginia ; six months in Pennsylvania, Maryland, North and South Carolina, Alabama, Illinois, and Ohio ; three mouths in Missouri and Mississippi ; and Mteen days in New Jersey. 188 EIGHTS AND LIABILITIES, ETC. [CHAP. VL CHAPTER VI. OP EIGHTS AND LIABILITIES GENERALLY INCIDENT TO A TENANCY. § 172. Reciprocal Rights and Duties of the Parties, generally. Before proceeding to examine the particular rights and lia- bilities of the respective parties to a demise, it may be found neither impertinent nor unprofitable to consider some of those obligations of a general character which are necessarily inci- dent to the relation of landlord and tenant, but which do not usually fall within the scope of the covenants which the par- ties employ for the purpose of defining their respective rights and duties. Upon the making of a lease, rights and liabilities attach to each of the parties, not only in respect to each other, but also in regard to other persons who are strangers to the contract. The landlord retains certain rights over the prop- erty, although he has parted with his possession ; while the tenant assumes corresponding obligations as soon as he is clothed with that character. By virtue of his right of exclu- sive occupation, a tenant becomes entitled to use the premises, in the same manner as the owner might have done, except that he must do no act to the injury of the inheritance.^ He may be bound to support and repair bridges, roads, division fences, and party-walls. He is obliged to make good any dam- age that may be occasioned by his neglect to keep the premises in a safe condition, or to use them in a reasonable and prudent manner. His possessory interest will enable him to defend himself against all trespassers upon the premises, as well as against a disturbance, nuisance, or other offensive erection so near his dwelling as to render it useless or unfit for habitation.^ 1 Jackson v. Brownson, 7 Johns. 227, 234 ; Bradstreet v. Pratt, 17 Wend. 44 ; Livingston v. Reynolds, 2 Hill, 157. 2 Willard v. Tillman, 2 Hill, 274 ; Moffat v. Smith, 4 N. Y. 126 ; Day V. Swackhamer, 2 Hilt. 4 ; Texas & Pao. E. E. v. Bayliss, 62 Tex. 570. SEC. I.] landloed's bights genekallt. 189 If there are ways, commons, fisheries, or other privileges or easements attached to the estate, they must be used in such a reasonable manner as not to infringe upon the rights of others who are equally entitled to the enjoyment of them with himself. And supposing him to have a right to remove buildings, or to mine and dig the soil, he is not to do so without considering what effect such operations will produce upon the house or land of his neighbor. We propose cursorily to examine each of these rights and duties in their order. SECTION I. ON THE PART OF THE LANDLORD. § 173. May protect his Reversionary Rights, and hovr. — After the making of a contract of lease, the right of possession in legal contemplation remains in the lessor, until the time has arrived when the contract is to be consummated by the entry of the lessee. After that period, the right of possession is changed, and the tenant is in a position to enforce this right by an action of ejectment ; ^ and, after entry, to bring actions for injuries to his possession. The landlord's rights, after the tenant's entry, are confined to the protection of his rever- sionary interest merely, — that is, to the maintenance of actions for such injuries as would, in the ordinary course of things, continue to affect such interest after the determination of the lease ; whether the injury be committed by a tenant, an under- tenant, or a stranger, and whether the term shall have ex- pired or not ; ^ and that notwithstanding he may not have an 1 But the possession of the tenant is for many purposes that of the landlord. Vanduyner v. Heffner, 45 Ind. 589. 2 Starr v. Jackson, 11 Mass. 519 ; French v. Fuller, 23 Pick. 104 ; Jackson v. Pesked, 1 M. & S. 234 ; Jesser v. Gifford, 4 Burr. 2141 ; Baxter v. Taylor, 4 B. & Ad. 72 ; Bower v. Hill, 1 Bing. (N. C.) 555 ; Little V. Pallister, 3 Greenl. 6 ; Austin v. Huds. Riv. R. R., 25 N. Y. 334 ; Gear V. Fleming, 110 Mass. 89; Aycock v. Railroad, 89 N. C. 321 ; Mayor v. Lyon, 69 Ga. 577. It seems that at common law the landlord had the right to come in and defend an action of ejectment against the tenant. Sutton V. Casselegi, 77 Mo. 397 ; Jackson v. Allen, 30 Ark. 110 ; Bryant 190 EIGHTS AND LIABILITIES, ETC. [CHAP. VI. immediate interest in the estate at the time of commencing the action, as if there be an intervening estate for life or for years.^ Of such actions are those for breaking the windows of a house ; stopping up a rivulet, whereby the timber on the estate becomes rotten ; ^ the erection of an unwholesome nuisance near the premises;^ undermining the foundations of a house;* or for not sustaining a sea-wall, whereby the property was injured'; cutting down trees, and the like.^ He may also by injunction restrain the commission of such in- jurious acts ; or prevent a lessee from converting the premises to uses that are inconsistent with the terms of the lease, from making material alterations in the buildings, or committing other species of waste.® But the injury complained of must be of such a character as permanently to affect the inherit- ance ; ^ and a mere disturbance, if not of a continuous nature, even though done in the assertion of a right, will not entitle the reversioner to an action.® Yet, if any one interferes with V. Kinlaw, 90 N. C. 337; and see Wissenhunt v. Jones, 78 id. 361; Same V. Same, 80 id. 348 ; Maddrey t>. Long, 86 id. 383. In such an action, if the landlord assumes the defence he is bound, thereafter, by the judgment, McCreery v. Everding, 54 Cal. 168, when it appears that the subject matter, formerly, was the same, and that the case was submitted and de- cided on its merits. Altschul ». Polack, 55 id. 633. 1 Robinson v. Wheeler, 25 N. Y. 252 ; Van Dusen v. Young, 29 Barb. 9. '^ Bedingford v. Onslow, Lev. 3, 209 ; Ray v. Ayers, 5 Duer, 494 ; Anderson v. Dickie, 26 How. Pr. R. 105 ; and though the tenant has a privilege of buying, the insurance money is the landlord's until the option is exercised. Gilbert t'. Post, 28 Ohio St. 276. ^ It is held that if the tenant uses the premises in such a manner as to create a nuisance, the landlord has a right to abate it. Kurrus v. Seibert, 11 Bradw. (111.) 319; but see § 17i post. * Barrow v. Richards, 8 Paige, 351 ; Reynolds v. Clarke, 2 Ld. Ray. 1399 ; Smith v. Martin, 2 Saund. 397. 6 Taylor v. Cole, 3 T. R. 292; Dodd v. Hohne, 1 Ad. & E. 493; and see post, § 775, &c. * Kane v. Vanderburg, 1 Johns. Ch. 11; Douglas v. Wiggins, 1 id. 435; Sarles v. Sarles, 3 Sandf. Ch. 601; Grey de Wilton v. Saxton, 6 Ves. 106. And see post, § 693. The sub-lessee may be restrained with- out making the lessee a party. Maddox v. White, 4 Md. 72. ' Queen's Coll. v. Hallett, 14 East, 489 ; Otto v. Grice, 4 Dev. 477. s Baxter v. Taylor, 4 B. & Ad. 72. A reversion is an estate which remains in the grantor and his heirs, and which is to take effect in pos- SEC. I.] landlord's rights generally. 191 his tenants so far as to disturb their enjoyment, and thereby cause a loss of rent or other damage,^ the landlord may have an action ; and, if the disturbance is continued, he may, from time to time, bring a fresh action.^ If a stranger enters upon the premises and cuts down trees, the landlord, immediately upon the severance, acquires such a right of possession as will enable him to recover them in an action of trover.^ But he may not bring an action of trespass for an injury to the land while there is a tenant for years lawfully in possession ; for the ground of such an action is injury to the immediate posses- sion, and the plaintiff must have been in either the actual or constructive possession when the trespass was committed.* § 174. Right to enter Premises strictly a Reserved Right. — Its Incidents. — The landlord generally retains the right to go upon the premises, for the purpose of examining what waste or injury, if any, has been committed by the tenant or other person, first giving notice of his intention to do so ; but strictly he would have no such right unless he reserves it in the lease, for every unauthorized entry upon land, whether an injury be thereby inflicted or not, amounts to a trespass.^ He session upon the determination by its own limitation of an outstanding particular estate. A right to enter and resume the possession for a breach of a condition is not a reversion. Phenix v. Com'rs of Emigra- tion, 12 How. Pr. R. 1; 1 N. Y. K. S. 723, § 12. So see ante, § 16, and n. 1 Aldridge v. Stuyvesant, 1 Hall, 214. 2 Shadwell v. Hutchinson, 2 B. & Ad. 97. « Bewick v. Whitfield, 3 P. Wms. 267; Berry v. Heard, Cro. Car. 242; Schermerhorn v. Buell, 4 Den. 422. * Campbell r. Arnold, 1 Johns. 511; Tobey v. Webster, 3 id. 468; Catlin V. Hayden, 1 Vt. 375; Robertson v. George, 7 N. H. 306; Gould V. Sternberg, 4 Bradw. (III.) 439. So not where a tenant from year to year, or a tenant at will, is in possession: French v. Fuller, 23 Pick. 104; though otherwise, if the tenancy is strictly at will or at sufferance. The technical action of trespass is here intended, in contradistinction to the actions of trespass on the case before referred to. See post, § 764. 6 Heermance v. Vernoy, 6 Johns. 5; Blake v. Jerome, 14 Johns. 406; Dixon V. Clow, 24 Wend. 188; Parker v. Griswold, 17 Conn. 288; Shan- non V. Burr, 1 Hilt. 39; State v. Piper, 89 N. C. 551. A landlord's entry upon the possession of his tenant whose lease depends upon conditions 192 EIGHTS AND LIABILITIES, ETC. [CHAP. VI. may use all ways appurtenant to the premises for the purpose of demanding rent, making such repairs as are necessary to prevent the waste of the premises, or for removing an ohstruc- tion.i But where the rent is payable in hay or other pro- duce, to be delivered from the farm to the landlord, he is not authorized to go upon the land and take the hay, until it is delivered to him by the tenant, or has been severed, and set apart for his use.^ If, however, by the terms of the lease, he has reserved the right to enter and make repairs, he is not liable for any damages resulting from its exercise, unless the work has been performed in a wanton, unskilful, or negligent manner.3 And we may here notice that, where the statute requires the consent of the owner, his reversionary interest cannot be subjected to a mechanic's lien for work done in ■which have not been violated is a trespass. McGee v. Gibson, 2 Ky. 353. A covenant for a landlord to be allowed to come into a house to see the state of the repairs at convenient times is not broken by his not being allowed to go into some of the rooms, if he has given no notice of his coming. Doe v. Bird, 6 C. & P. 195. A covenant that the landlord may enter in certain months to make repairs is broken by his entry at other times, and the fact that repairs are necessaiy will not justify such an entry. Goebel v. Hough, 26 Minn. 252. The tenant may have damages from his landlord by reason of the care- less destruction by the latter of the leased property ; as by fire, although the lease allows the landlord one half the pasturage on the leased premises. Teagarden v. McLaughlin, 86 Ind. 476. 1 Proud V. Hollis, 1 B. & C. 8; Penley v. Watts, 7 M. & W. 601; Shaw 17. Cummiskey, 7 Pick. 76 ; Petersen v. Edmonsen, 5 Harr. 378. In Eng- land it has been held that an immediate lessee may recover, as special damages, from an under-lessee who holds, under similar covenants, the costs of defending an action, as well as the damages under it, brought by the original lessor for want of repairs ; because, during the terra of the under-lessee, he could not have entered for the purpose of repairing with- out making himself a trespasser. Neale v. Wyllie, 3 B. & C. 533; Barker ». Barker, 3 C. & P. 557. But this doctrine has been overruled in Penley V. Watts, 7 M. & W. 601, and Walker v. Hatton, 10 id. 249. The ques- tion of liability for damages in cases of this kind, probably depends upon the character of the trespass, as to whether it was merely trivial, and so absque injuria, or whether it was wholly unwarranted. 2 Dockham v. Parker, 9 Greenl. 137; Woodruff v. Adams, 5 Blackf. 317. 8 Turner v. McCarthy, 4 E. D. Smith, 247; White v. Mealis, 5 Jones & S. 72. SEC. I.] landloed's eights generally. 193 altering or repairing the demised premises by order of the tenant, if he merely stood by and observed the progress of the work.^ § 175. Liability to Strangers for Injuries, Tirhat. — The land- lord's liabilities, in respect of possession, are in general sus- pended as soon as the tenant commences his occupation.^ But where injuries result to a third person from the faulty or defective construction of the premises,^ or from their ruinous 1 Francis v. Sayles, 101 Mass. 435 j Conant v. Brackett, 112 id. 18; McClintock v. Criswell, 67 Pa. St. 183. This lien is a creature of the statute, and, of coui-se, varies in the different States. But the right to a lien arising under a contract made with a builder, attaches upon the .property of the party contracting only to the extent of his interest therein. Whether it might not lie against the lessee's interest, qumre. Ombony v. Jones, 19 N. Y. 234; Ernst v. Reed, 49 Barb. 367; Smith v. Covey, 3 E. D. Smith, 642 ; Doughty v. Devlin, 1 id. 625. 2 Cheetham v. Hampson, 4 T. R. 318; Eakin v. Brown, 1 E. D. Smith, 36; Mayor v. Corlies, 2 Sandf. 301; St. Louis v. Kaime, 2 St. Lo. Mo. App. 66, Cleveland Coop. Stove Co. v. Wheeler, 14 Bradw. (111.) 112; Shindelbeck v. Moon, 32 Ohio St. 264. The analogy is direct to the rule which holds the owner of real estate free from liability for injuries caused by the employees of a contractor to build upon the premises. In each case the control is parted with. Hilliard v. Richardson, 3 Gray, 349 ; Meany «. Abbott, 6 Phila. 256; Blake v. Ferris, 5 N. Y. 48. So the con- trol retained by a municipal corporation of its streets renders it liable for defects caused by private persons. Reinhard v. Mayor, 2 Daly, 243; Davenport v. Buckman, 10 Bosw. 20; 37 N. Y. 568. A statute provision that the " owner " of a factory shall provide fire escapes is held not to apply to the owner in fee not in possession, but to the tenant in posses- sion occupying the premises as a factory, — the word " factory ' ' being con- strued to include machinery, engines, and power, owned by, and in the .control of, the tenant, who places the operatives in a position of danger from such machinery, &c., and benefits from their services. Schott v. Harvey, 105 Pa. St. 222; Keely w. O'Conner, 106 id. 321; Lee v. Smith, 42 Ohio St. 458. » King V. Pedley, 1 Ad. & E. 827; Pickard v. Collins, 23 Barb. 444; Scott V. Simons, 54 N. H. 426; Durante. Palmer, 5 Dutch. 544; Swords r. Edgar, 59 N. Y. 28; Wenzler v. McCotter, 22 Hun, 60; Larue v. F. Hotel Co., 116 Mass. 67 ; Learoyd v. Godfrey, 138 id. 315. A simi- lar view is taken in New York of structures in or under the public high- way, infra, p. 194, note 2. The civil liability attaches although the landlord is a lunatic. Morain v. Devlin, 132 Mass. 87. VOL. 1. — 13 194 EIGHTS AND LIABILITIES, ETC. [CHAP. VI. condition at the time of demise,^ or because they then contain a nuisance, even if this only becomes active by the tenant's ordinary use of the premises ;2 the landlord is still liable notwithstanding the lease. So where the landlord knowingly demises the tenement for a purpose for which it is unfit, he has been held liable to strangers for injury suffered by them while it is so used.^ And if he holds or resumes control of 1 BeUows V. Sackett, 15 Barb. 96 ; Todd v. Flight, 9 C. B. n. s. 377; Moody V. Mayor, 43 Barb. 482 ; Peoria v. Simpson, 110 111. 294 ; Eeichen- bacher v. Pahmeyer, 8 Bradw. (111.) 217; Marshall v. Heard, 59 Tex. 266. Eakin v. Brown, supra; Nelson v. Liv. Brew. Co., 2 L. R. C. P. Div. 311. 2 Fish tf . Dodge, 4 Denio, 311 ; House v. Metoalf, 27 Conn. 631. In this case the owner of a mill was held for injuries to plaintifE by his horse becoming frightened by the sails of the mill, though at some distance from the highway, and worked by a tenant. The lessor's liability is put on the ground of principal and agent. On like ground, the landlord is held liable for the acts of his tenant in polluting the waters of a natural water-course running through the premises by discharging sink water therein, if the leased building is adapted to be used in the manner com- plained of. Jackman v. Arlington Mills, 137 Mass. 277. So Owings v. Jones, 9 Md. 108. And here, and in some cases in New York, a coal shoot or other excavation beneath or at the public highway, has been con- sidered an incipient nuisance per se: Congreve v. Smith, 18 N. Y. 79; Whalen v. Gloster, 4 Hun, 24; Irvine v. Wood, 51 N. Y. 224; and Strat- ton V. Staples, 59 Me. 94, may have proceeded on this ground. In Swords u. Edgar, supra, a similar liability seems to have attached to the ownership of a wharf, from its quasi public character. But in Ditchett V. S. D. R. B,. 67 N. Y. 425, a different view was taken, and a railroad company lessor was held not to be responsible for the condition of the fences at a public highway crossing, if these were in good condition when demised; and no such implication appears to exist in the other States or in England. As between landlord and tenant, -the party presumptively liable for a nuisance upon the leased premises is the tenant. Per Cooley, J., Sam- uelson V. Cleveland Iron Min. Co., 49 Mich. 164. 8 Godley u. Haggerty, 20 Pa. St. 387; Carson v. Godley, 26 id. 111. " The wrong consisted not in erecting walls incapable of standing alone, but in building and renting a store for a specific purpose for which it was unfit " (p. 120). So Helwig v. Jordan, 53 Ind. 201; Pickard v. Collins, Owings V. Jones, and Swords v. Edgar, supra. In New York, the court, after laying down the rule that the landlord, unless he has wilfully con- cealed the defective condition of the demised premises, is not liable for injury resulting to third persons going upon them during the term, have SEC. I.J landlord's bights generally. 195 the premises pending the lease,^ or renews the lease, or grants another lease while the nuisance continues, he becomes liable for their condition thereafter.^ And where he has covenanted to ' repair, and the injury arises from this want of repair, al- though the occupant is in the first instance liable,^ the landlord may be sued at once to avoid circuity of action.* Again, while a landlord is not, as such, bound to repair, yet if he assumes to do so, and neglects to perform his obligation, or in perform- ing it, if an injury is caused from want of skill in, or proper selection of, his workmen, he is held therefor.^ But to render extended the rule to the case of structures erected to be used for a public purpose, as a public amphitheatre built for equestrian or pedestrian ex- hibitions. (Ruger, C. J., Danforth & Finch, JJ., dissenting) Edwards v. N. Y. & H. R. R. Co., 98 N. T., 245, s. c. below, 25 Hun, 634; Bard v. Same, 10 Daly, 520. 1 Cannavan f . Conkling, 1 Daly, 509 ; Leslie v. Pound, 4 Taunt. 649. Where an elevator on the leased premises run by the lessee's servant was to be kept in repair by the lessor, it was held that the lessee was not in such possession or control of the elevator as to be responsible for an accident to a third person resulting from a defect in its construction. Sinton v. Butler, 40 Ohio St. 158. ^ Rosewell v. Prior, 2 Salk. 460 ; King v. Pedley, supra ; Vedder v. Vedder, 1 Den. 257; Whalen v. Gloster, 4 Hun, 24; Waggoner v. Ger- maine, '3 Den. 306. Here the owner's grant of land having a dam so high as when filled to flow the neighbor's land, with a warranty, subjected grantor to liability for the damage caused by using the dam to its full height. In Gandy v. Jubber, 5 B. & S. 73, the court held the lessor from year to year, because each year was a reletting. But see s. c. id. 485. Both lessor and lessee may be sued at once: Plumer v. Harper, 3 N, H. 88; Staple v. Spring, 10 Mass. 72; Brown v. Woodworth, 5 Barb. 550; Rogers v. Smith, 5 Vt. 215; Irvine v. Wood, 51 N. Y. 224; and plaintiff may have judgment for damages, or removal, or both: Hutchins v. Smith, 63 Barb. 251. So the assignee of the reversion maybe held: King v. Pedley, supra; and by any subsequent occupant injured: Staples v. Spring, supra. » Regina v. Watts, 1 Salk. 357; Russell o. Shenton, 3 Q. B. 449; and see post, § 178, note, and cases cited. * Payne v. Rogers, 2 H. Bla. 350; Milford v. Holbrook, 9 Allen, 17; Durant v. Palmer, 5 Dutch. 544, 546; Benson v. Suarez, 43 Barb. 408; Fisher v. Thirkell, 21 Mich. 1; Gridley v. Bloomington, 67 111. 47; Nelson V. Liv. Brew. Co., 2 L. R. C. P. Div. 311. 6 Leslie v. Pounds, 4 Taunt. 649 ; Payne v. Rogers, Benson v. Suarez, supra; Gill v. Middleton, 105 Mass. 477; Glickauf v. Maurer, 75 111. 289. 196 EIGHTS AND LIABILITIES, ETC. [CHAP. VI, him liable the nuisance must be one that necessarily arises from the tenant's ordinary use of the premises for the purpose for which they were let, and not be avoidable by reasonable care on the tenant's part.^ If it is produced only by the act of the tenant, he alone is responsible.^ So if the condition of the premises is not radically defective or wholly ruinous, and the repair falls within the tenant's duty, express or implied, the landlord is not liable for the neglect.^ 1 Fish V. Dodge, King v. Pedley, supra. In Rich v. Basterfield, 4 C. B. 783, the doctrine of King v. Pedley is severely criticised. Here a chimney in the demised tenement was so constructed that a coal fire pro- duced a nuisance. It was held that the tenant was bound to abstain from using coal, and that the lessor was not liable if the lessee used it. But this is of questionable soundness. In Gandy v. Jubber, supra, a more correct rule is laid down. " To render the landlord liable, the nuisance must be, if I may so term it, a normal one; not such, for instance, as a cellar with a flap, which may or may not be a nuisance, according as it is cai'efully closed or improperly left open." Blackburn, J. And this seems the result of authority. Fisher v. Thirrell, supra ; Leonard v. Storer, 115 Mass. 86; Taylor v. Bailey, 74 111. 178. McCarthys. York Co. Savings Bank, 74 Me. 315; Allen v. Smith, 76 id. 835. ' Saltonstall u. Banker, 8 Gray, 195; Owings v. Jones, supra; Taylor V. Mayor, 4 E. D. Smith, 559 ; Fisher v. Thirkell, supra ; Ditehett v. S. D. R. R., 67 N. Y. 425; Ryan v. Wilson, 87 id. 471; 8. c. below, 63 How. Pr. 172; Norton v. Wiswall, 26 Barb. 618; Heimstreet v. Howland, 5 Denio, 68; Felton v. Deall, 22 Vt. 170; Mahoney v. Atl. & S. L. R. R., 63 Me. 68 ; Harris v. Cohen, 50 Mich. 324. So one having the care and custody of cattle, as lessee of a farm and the stock thereon, is under the same liability for damage done by the cattle as if he were the owner. Moulton V. Moore, 56 Vt. 700. So the tenant alone is liable for injury to adjacent property occasioned by his setting fires on the leased premises against the landlord's direction. Ferguson v. Hubbell, 26 Hun, 200. 8 Mayor v. Corlies, 2 Sandf. 801 ; Radway v. Briggs, 37 N. Y. 256 ; Odell V. Solomon, 50 JST. Y., S. C. 119; Leonard v. Storer, 115 Mass. 86; St. Louis V. Kaime, 2 Mo. App. 66; Deutsch v. Abeles, 15 id. 398; Grid- ley V. Bloomington, 67 111. 47; Union Brass Mfg. Co. v. Lindsay, 10 Bradw. (III.) 583; Bishop v. Bedf. Ch., 1 Ellis & E. 697. Upon like ground it was held in Mellen v. Morrill, 126 Mass. 545, that the landlord was not liable to a third person who, in passing along a walk leading from the street to the leased building, to transact business with the tenant, received injuries by reason of a defect in the walk, although the defect existed prior to the letting. But where the defect existed in a way leading to several tenements leased to different tenants and used in com- mon by the tenants and the public, the landlord was held liable for result- SEC. 1.] landlord's bights generally. 197 § 175 a. Liability to Tenant for Injuries. — The lessor's lia- bility to the lessee is, however, much more restricted. As the former does not warrant the condition of the premises, and the tenant, because he can inspect them, assumes the risk of their state ;^ for any injury suffered by him during his occupancy by their defective condition, or even faulty con- struction, he cannot make the lessor answerable,^ unless there was misrepresentation, active concealment,^ or perhaps a total inability on the tenant's part to discover the defect before ing injuries to third persons in the absence of an agreement by the tenants to keep the way in repair. Readman v. Conway, 126 Mass. 374. As to the landlord's liability to third persons for injuries resulting from a defect in a common stairway leading to rooms in a building leased to different tenants, see Murr. v. Henkel, 31 Hun, 28. The mere license of the land- lord to the tenants of a house to enjoy in common the use of a part of the premises imposes no liability on the landlord for injuries resulting to a tenant from a defect in the part so used. Ivay v. Hedges, 9 Q. B. D. 80. In Congreve v. Smith, and other cases cited, ante, n. 4, making a structure or excavation, at or under the highway, was regarded as im- posing a continuous responsibility on the owner, notwithstanding a lease, to keep it always safe. But in Pretty v. Bickmore, L. R. 8 C. P. 405; Grwinnell v. Eames, 10 id. 658, this was held otherwise, and the lessor not responsible for a bi'oken flap over a coal shoot, even if broken when demised, if he was not aware of its condition. So see Fisher v. Thirkell, Leonard v. Storer, supra, ad idem. In Buesching v. St. Louis Gas L. Co. 73 Mo. 219, the landlord and tenant were held equally liable for injuries to a third person caused by an excavation at the street level. 1 Post, §§ 327, 328, 382. 2 Brewster v. Defremery, 38 Cal. 341 ; Sherwood v. Soallan, 2 Bosw. 127; Doupe v. Genin, 1 Sweeny, 25-, 45 N. Y. 119; Joyce v. De Giver- ville, 2 Mo. App. 596; Hazlett v. Powell, 30 Pa. St. 293; JafEe v. Harteau, 56 N. Y. 398, 401; Greene v. Hague, 10 Bradw. (111.) 598. And the rule is held although, as to the preceding tenant, the landlord may have been guilty of trespass in stripping the premises. Peterson v. Smart, 70 Mo. 34. In Johnson v. Dixon, 1 Daly, 278; Eagle v. Swayze, 2 id. 140, the landlord was held for injuries to tenant from non-repair. But these cases are clearly not law. Post, §§ 327 et seg., and the case of Johnson v. Dixon, supra, is overruled in Arnold v. Clark, 45 N. Y. S. C. 252. In Scheerer v. Dickson, 3 Brewst. 276, the lessor's liability depended on custom. 8 Miner v. Sharon, 112 Mass. 477, where the lessor did not disclose that the premises were infected with small-pox. So Wilson v. Finch Hat- ton, 2 L. R. Exch. 236, where the condition of the draips was not fairly stated by the lessor. See also Scott v. Simons, 54 N. H. 426. 198 RIGHTS AND LIABILITIES, ETC. [CHAP. VI. entry .1 And the subtenant, servant, employee, or even cus- tomer of the lessee, is under the same restriction; because entering under the tenant's title, and not by any invitation, express or implied, from the owner, they assume a like risk.^ Where, however, the landlord retains possession or control jQf_any part of the tenement, the rest of which is under the demise^ while his duty to third persons is complete,^ his lia- bility to the tenant depends on the exclusiveness of his pos- session and active control.* If the tenant has access to and 1 Eakin v. Brown, 1 E. D. Smith, 36; Wilson v. Finch Hatton, SJtpra. See Bowe v. Ilunkin, 135 Mass. 380, where the doctrine of caveat emptor is applied as against a tenant entering with full opportunity of examining the condition of the leased premises. 2 O'Brien v. Capwell, 59 Barb. 497; Robbins v. Jones, 15 C. B. n. s. 221; Nelson <>. Liv. Brew., 2 L. R. C. P. Div. 311. In Stratton v. Staples, 59 Me. 94, the defective construction was not on the demised premises; and in Scott v. Simons, supra, the rule is limited to conceal- ment or overt use by the landlord of the part retained. See Alston v. Grant, infra. In Jaffe v. Harteau, 56 N. Y. 398, the landlord was held not liable to tenant's servant for a defective boiler. Where the statute, imposed an absolute duty on the landlord, as, to provide suitable means of escape from the premises in case of fire, it was held (upon the general principle that where the statute imposes & duty on a citizen, any person having an interest in the performance thereof may sue for a breach causing him injury) that a tenant in occupation might sue for damage occasioned him by the absence of such suitable means ; and further, that his occupancy of the premises, after discovering the absence of such means, for a reasonable time in which to notify the landlord of such absence would not deprive him of his remedy. Willy V. Mulledy, 78 N. Y. 310. 8 kirby v. Boylst. Mkt., 14 Gray, 249; Shipley v. Fifty Assoc , 101 Mass. 251; 106 id. 294; Centre v. Davis, 39 Ga. 310, where the lessor was held under the statutory requirement to keep in repair. But if he retains no portion of the premises, his responsibility ceases. Leonard v. Storer, 115 Mass. 86. * Tenant o. Goldwin, 2 Ld. Ray. 1019; Priest v. Nichols, 116 Mass. 401. A landlord of rooms in a building leased to different tenants is bound to use reasonable care to keep the common staircase in repair, and, failing toydo so, he is liable for injuries resulting to one of the tenants by reaso];^, of defects in the staircase. Looney v. McLean, 129 Mass. 33 ; DonOUrae v. Kendall, 50 N. Y. S. C. 386. But see, contra, Purcell v. Eng- lish, 86 Ind. 34, where the decision rests on an application of the rule that there is no implied warranty of the fitness of premises for occupation. SBC. I.] landlord's rights generally. 199 means of remedying the defect, or had implied notice of it so that he took the risk of it when entering, he caimot hold the landlord responsible.^ If however, the latter's overt act pro- duces the injury, he will be answerable to the tenant as well as to a stranger,^ while for mere non-feasance no action lies.^ The landlord is moreover entitled to his insurance, notwith- standing the negligence of his tenant, if he used due care in his selection of an occupant.* But the better opinion is that in cases where the landlord retains control of the premises the rule of no warranty does not apply. Toole v. Beckett, 67 Me. 544. 1 Carstairs v. Taylor, L. R. 6 Each. 217; Dunn v. Birm. Coal Co., L. R. 7 Q. B. 244; Robbins v. Mount, 4 Rob. (N. Y.) 553; Taylor v. Bailey, 74 111. 178; Woods v. Naumkeag Steam Col. Co., 134 Mass. 357, ■where the rule was applied as against one of several tenants, who had been injured by falling on ice accumulated upon a commoa stairway, through the alleged improper construction of such stairway; the defect having existed before the beginning of the tenancy. So in Ross v. Fed- den, L. R. 7 Q. B. 661, an upper tenant was held not liable to a lower tenant for injury from a structural defect existing when the latter entered, and not chargeable to negligence on the part of the former. But where the injury results from the negligence of the upper tenant he is respon- sible therefor. White v. Montgomery, 58 Ga. 204. See Freidenburg V. Jones, 63 id. 612 ; Jones v. Freidenburg, 66 id. 505. In Fera v. Child, 115 Mass. 32, the tenant expressly took all risks. The case of Marshall V. Cohen, 44 Ga. 489, turned on a statute requirement. 2 Elliott ». Pray, 10 Allen, 378; Watkins v. Goodall, 138 Mass. 533; Eimmell v. Burfeind, 2 Daly, 155; Worthington v. Parker, 11 id. 545 ; Alston V. Grant, 3 Ellis & B. 128; Totten v. Phillipps, 52 N. Y. 254; Alger V. Kennedy, 49 id. 109. « Pomfret v. Ricroft, 1 Saund. 323; Tenant v. Goldwin, Doupfe v. Genin, supra; Chauntler v. Robinson, 4 Excb. 163; Krueger v. Ferrant, 29 Minn. 385. * White V. M. I. Co., 8 Gray, 566. But see Stinemetz v. Ins. Co., 6 Phila. 21. 200 EIGHTS AND LIABILITIES, ETC. [CHAP. VL SECTION n. ON THE PART OP THE TENANT. § 176. Nature of his Interest. — When it attaches. — Right of Possession. — The rights, as well as the liabilities, of a tenant for life attach upon the execution and delivery of the lease or on the vesting of the estate ; but, in case of a lease for years, they commence from the making of the contract. Before a tenant for years enters into possession, he acquires an inter- est in the term, whether the lease is to commence at once or on a future day.^ This interest is assignable, and, in case of the death of the lessee before taking possession, will pass to his executors or administrators. If, however, a person en- titled to an estate for years enters, and is put out of posses- sion, he cannot afterwards assign his term to a stranger ; for, although by his entry the estate for years became vested, yet being afterwards defeated by the entry of a stranger, the lessee has only a right of entry left to him, which the policy of the law will not suffer him to transfer, because it is a mere right of action.^ His right of possession becomes com- plete on the day fixed by the agreement for the commence- ment of the term; and, when that day arrives, he will be entitled to the possession of the premises in the same condi- tion in which they were on the day of the demise. That he has agreed to make alterations or repairs upon the premises in the mean time, and failed in performance, is not a condi- tion precedent to the vesting of his estate.^ And one who has agreed for a lease must take the premises as they stand, and cannot call upon the lessor to put them in better condi- 1 Whitney v. Allaire, 1 N. Y. 305. 2 Bruerton v. Eainsford, Cro. El. 15; Saffyn's Case, 5 Co. 124, a; 2 Roll. Abr. 850. In Delaware, an incoming tenant is held to be en- titled, from custom and necessity, to enter before his term commences, for the purpose of filling the ice-house on the premises. State v. McClay, 1 Harringt. 520. ° Lowell Meeting-House v. Hilton, 11 Gi-ay, 407. SEC. 11.] tenant's rights generally. 201 tion, or make them more comfortable to live in, Independently of an agreement to that effect.^ If possession is withheld, he may maintain an action of ejectment against any person, even the lessor, who wrongfully withholds it ; ^ or, if posses- sion is withheld by ,the lessor, or one under his authority, he may at his option- entirely repudiate the contract, or bring an action for damages against the landlord for a breach of his agreement.^ He may also repudiate, if he finds he has been defrauded in the negotiation for the lease. But he cannot avoid his responsibilities on the ground of the lessor's mis- representations, if he does not rescind at once on discovering the fraud ; nor so long as he retains possession.* His term of years is liable to be sold under an execution against him, like any other chattel ; although the judgmeilt will not be a lien upon it, either at common law or by statute.^ He be- comes responsible for rent and upon all his other covenants in the lease from the time the term commences, although he should refuse to take possession of the property.^ And if an- 1 Chappel V. Gregory, 34 Beav. 250. And see post, §§ 327 ei seq. ; 382. 2 Remington v. Casey, 78 111. 317; Ollendorff t'. Cook, 1 Lans. 37. » Trull V. Granger, 9 N. Y. 115; Spencer v. Burton, 5 Blackf. 57; Clark I'. Butt, 26 Ind. 236. The English cases go further, and hold lessor liable to the lessee if possession is withheld by a stranger, consider- ing the lessor bound to deliver " possession, and not merely the chance of a lawsuit." Coe u. Clay, 5 Bing. 440; Jenks v. Edwards, 11 Exch. 775. So in Missouri, L'Hussier v. Zallee, 24 Mo. 13 ; Hughes v. Wood, 50 id. 350. But most of the American courts do not hold lessor to this liability. Gardner v. Keteltas, 3 Hill, 330; Becker v. Forest, 1 Sweeny, 528; Goz- zolo w. Chambers, 73 111. 75; Pendergast v. Young, 1 Fost. 234; Cozens V. Stevenson, 5 S. & R. 424; and post, § 312. If, before the day named for taking possession, the lessor wrongfully removes a fixture, so as to render the dwelling unfit for habitation, the lessee may refuse to take possession. Cleves v. Willoughby, 7 Hill, 83. * McCarty v. Ely, 4 E. D. Smith, 875; Milliken v. Thorndike, 103 Mass. 382. 6 Ex parte Wilson, 7 Hill, 150; and see People d. Westervelt, 17 Wend. 674; s. C. 20 id. 416. See ante, § 14, note. « Birkhead v. Cummins, 38 N. J. 44; Becar v. Flues, 64 N. Y. 518; Bellasis t'. Burbriche, 1 Ld. Ray. 170; s. c. Holt, 199; and see Eaton v. Jaques, Doug. 461. Under a joint lease to two tenants, the occupation of one is sufficient to make both liable for the rent. Kendall v. Garland, 5 Cush. 74. 202 EIGHTS AND LIABILITIES, ETC. [CHAP. VI. other person enters into possession by the tenant's consent, he will be considered, in respect to the landlord's rights, as substituted in the tenant's place, although he may disclaim all privity with the tenant.^ § 177. Measure of Tenant's Damages as against Landlord. — The measure of the damages which the lessee may recover from the lessor for the wrongful withholding of possession is the difference between the rent reserved in the lease, and the actual value of the lease to him.^ If the landlord cannot put the lessee into possession of all the land he contracted to give or of the building which forms the principal inducement to the contract, the latter is under no obligation to accept the residue, and will be justified in abandoning the entire prem- ises.3 Yet if he prefers to occupy them, but does not obtain possession of all he hired, he is liable for rent on a quantum meruit, for the part occupied.* And though the lease may 1 Howard, v. Ellis, 4 Sandf. 369. If a tenant permits a third person to occupy the premises, it is equivalent to his own personal occupation, unless the landlord accepts the new occupant as tenant in place of the former one. Bacon v. Brown, 9 Conn. 338. It is not essential to a valid lease that the building which is the subject of the contract should be erected at the time the lease is made, or that the lessor be the owner of the ground upon which the building is to be placed. Haven v. Wake- field, 39 111. 509. 2 Trull V. Granger, supra; Townsend v. Wharf. Co., 117 Mass. 501; Hughes V. Wood, 50 Mo. 350. But he cannot recover for the special use to which he would have put the demised premises unless this was known to the lessor. 76. He may recover also the costs: Stedding u. Newell, L. R. 4 C. P. 212; and expenses incurred: Green v. Williams, 45 111. 206. In Hester v. Knox, 42 N. Y. Sup. 8; 63 N. Y. 561, one who had hired a hotel and procured furniture was allowed to recover as for a furnished house. Nor can the damages be abated by the value of any other occupa- tion the lessee could have engaged in during the term. Wolff v. Stude- backer, 65 Pa. St. 459. s Tunis V. Grandy, 22 Gratt. 109. So if he has given a note for rent in advance, he may defeat payment. Andrews v. Woodcock, 14 Iowa, 397. * Hay V. Cumberland, 25 Barb. 594; Hurlburt v. Post, 1 Bosw. 28; Lawrence v. French, 25 Wend. 443. Under a lease for years, the destruc- tion of the building by fire before the commencement of the term absolves the lessee, and entitles him to have the lease cancelled ; for, until the term commences, the contract is purely executory, and possession is a condition SEC. n.J tenant's eights generally. 203 have been delivered after signing to the party interested, with a stipulation that such delivery shall be subject to the land- lord's being satisfied with the reference as to responsibility given him by the tenant, it is a proper question for a jury, in an action for the non-performance of the agreement, whether, inquiry haviijg been made, the answer given by the party referred to was such as reasonably satisfied the condition, the landlord having declared it was not satisfactory to him, and having on that ground refused to let the tenant into possession. And in such an action, the plaintiff may give evidence of any particular loss sustained by the breach of the agreement, if he has made a sufficient averment of loss in his declaration.! § 178. Rights incident to Tenant's Possession. — May defend it. — Liable for 'Waste, etc. — After taking possession, the tenant is at once invested with all the rights incident to possession, the use of all the privileges and easements appurtenant to the tenement ; and may take such reasonable estovers and emblements as are attached to the estate, unless restrained by special agreement.^ He may maintain an action against any person who disturbs his possession, or trespasses upon the premises, though it be the landlord himself, who has, in gene- ral, no right to enter and repair, unless by virtue of a stipu- lation to that effect ; or unless the repairs are necessary to precedent to any liability for rent. Wood v. Hubbell, 5 Barb. 601 ; s. c. 10 N. Y. 479. A dwelling-house and premises were demised for a year; the lessee accepted the lease, and by virtue of the demise entered upon the premises. Before and at the time of the demise, eight acres included in it had been demised to a third party, in whose possession they were, so that the lessee could not, and did not, enter upon them. Held, that the demise was altogether void. Neale v. Mackenzie, 1 M. & W. 747. Where there is a demise of premises, and an entire rent reserved, if any part of the premises could not be legally demised, the whole is void. Doe v. Lloyd, 3 Esp. 78, per Ld. Kenyon. 1 Ward V. Smith, 11 Price, 19; Coe v. Clay, 5 Bing. 440. 2 It is held in Indiana that there may be a valid parol reservation of the landlord's share of growing crops from a written lease, by the terms of which the lessee is to take possession before the maturity of the crop. The same rule is held in that State upon the conveyance of the fee by deed. Hisey v. Troutman, 84 Ind. 115. 204 EIGHTS AND LIABILITIES, ETC. [CHAP. VI. prevent waste.^ If a stranger enters and commits waste, the tenant will nevertheless be liable for such waste at the suit of his landlord, and will be left to his remedy over against the stranger.2 And, after the term has expired, he may still re- 1 Leader v. Moxon, 2 W. Bl. 924; Bedingfield v. Onslow, 3 Lev. 209; Shadwell v. Hutchinson, 2 B. & Ad. 97; Barker v. Barker, 3 C. & P. 557; Harrison v. Blackburn, 17 C. B. sr. s. 678; even under a parol lease, Wilber v. Paine, 1 Ohio, 251. He may, although a tenant at will, main- tain an action quare clausum fregit against a stranger for cutting and carrying away trees, Hayward v. Sedgely, 14 Me. 439 ; or even against his landlord where the estate has not been legally determined by notice to quit. Dickinson v. Goodspeed, 8 Cush. 119. A railroad company entering and constructing its road on the leased premises under the land- lord's authority only is a trespasser on the tenant. Crowell v. Railroad Co., 61 Miss. 631. Landlord and tenant may each maintain an action for injury to his particular estate. Austin v. Huds. Riv. R. R., 25 N. Y. 334; Bannon v. Mitchell, 6 Bradw. (111.) 17. And it is held in Pennsyl- vania that the landlord and tenant from year to year may unite in such an action, and the jury apportion the damages as between the plaintiffs. Getz V. Phil. & Read. R. R. Co., 105 Pa. St. 547. In the same State it was held, where a railroad company had the right of way over mining lands, and covenanted with the owner of the land that, upon notice, it would change its location, or permit the coal under the way to be mined, that a tenant of the owner, who under his lease had a right to mine all the coal in the land, might sue in the name of the landlord for breach of the covenant; and that, in such a suit, damages, which would be measured by the value of the coal left standing by reason of the way, might be apportioned by jury between the landlord and tenant. Mine Hill R. R. Co. V. Lippincott, 86 i(i. 468, Sharswood & Paxon, JJ., dissenting. A person who took possession from one who falsely claimed to have an oral lease from the owner is, after remaining in for some time with the appa- rent acquiescence of the owner, to be deemed rightfully in possession until his tenancy is propei'ly terminated, by notice or otherwise. The owner may not forcibly eject him, nor will he be justifie4 in closing up the entrance to the premises, or in refusing to allow the tenant to remove his goods. And in an action for damages in such a case, the owner will be held liable for the value of the goods detained, as well as for the injury done by bi-eaking up the business of the tenant. Marquart V. LaFarge, 5 Duer, 559. 2 Cook V. Champl. Tr. Co., 1 Den. 91; Wood v. Griffin, 46 N. H. 231; Cal. Dry Dock Co. v. Armstrong, 8 Sawyer, 523. The situation of a tenant is analogous to that of a common carrier, to prevent collusion (and not on the presumption of actual collusion) ; both are charged with the pro- tection of the property intrusted to them, against all but the acts of God and the King's enemies. Per Charabre, J., in Attersoll v. Stevens, 1 SEC. II.] tenant's bights generally. 205 cover damages for an injury sustained during its continu- ance.^ As occupant, he is, primd facie, liable to answer for any neglect in the repair of fences, or party-walls, or for any improper use of the premises, for the fixtures thereon, — it being generally sufficient, except where a statute has otherwise pro- vided, to charge a man for such repairs or damages by the name of occupant.^ He is liable for all injuries produced by a nuisance kept upon the premises, or by an obstruction of the highway adjacent to them.^ Also, for not properly cover- ing an old shaft of a mine, whereby the plaintiff's horse fell down and was killed ; ■* for not properly covering a coal-hole, cellar-entrance, sewer, or railing of an area opening into the highway, allowing a sink to overflow to the injury of his neighbor, or the like.^ He is also responsible for any im- Taunt. 198. And, in Louisiana, if he abandons the premises before the expiration of the lease, he is at once bound for the rent of the whole term, and may be sued. Christy v. Casanave, 2 Martin, n. s. 451. 1 2 KoU. Abr. 551; Symonds v. Seabourne, Cro. Car. 325; Bedingfield V. Onslow, supra; Holt, N. P. C. 543. It seems that, at common law, when premises burglariously entered are in possession of the tenant, such premises are to be chai'ged in the indictment to be the tenant's property. McGrillis v. State, 69 Ind. 159. But by statute in Indiana, R. S. 1881, § 1758, such premises may properly be charged to be the property either of the landlord or the tenant. Kennedy v. State, 81 id. 379. 2 Althorf V. Wolfe, 22 N. Y. 355; Chicago v. Brennan, 65 111. 160; Eegina v. Bucknall, 2 Ld. Ray. 792; Rider v. Smith, 3 T. R. 768; Cheet- ham V. Hampson, 4 id. 318. And see ante, § 175. The occupant, and not the owner of land, is bound to repair drains and sewers; hence, in a suit by an adjoining owner for non-repair thereof, the declaration must allege occupation by the defendant. Russel v. Shenton, 3 Q. B. 449. Where a town was compelled to pay damages for a defective sidewalk, attached to premises in the possession of a tenant, the tenant was held liable to reimburse the town for such payment. Lowell v. Spaulding, 4 Cnsh. 277. 8 Marriott v. Stanley, 1 M. & G. 568. If a house on the highway be ruinous and likely to fall, it is a nuisance, and the occupant, although he be but a tenant at will, is bound to repair it; for, as the danger is the matter that concerns the public, the public is to look to the occupant and not to the estate. Regina v. Watts, 1 Salk. 357; Odell v. Solomon, 50 N. Y. S. C. 119. * Sybray v. White, 1 M. & W. 435. B Payne v. Rogers, 2 H. Bl. 349; Leslie v. Pounds, 4 Taunt. 649; Laugher v. Pointer, 5 B. & C. 559; Mayor v. Corlies, 2 Sandf. 301; Stick- 206 EIGHTS AND LIABILITIES, ETC. [CHAP. VI. proper use of the water-pipes; and for any overflow caused either by a neglect to turn off the water when required, or by such a misuse of the works as deprives them of power to stop the flow of water.i And that the premises wete in the same unsatisfactory condition before the defendant came into pos- session of them, or that the person injured was intoxicated at the time of the accident, is no defence ;2 for the occupant who continues a nuisance is as liable as the one who created it.^ § 179. Must preserve Boundaries. — Enlargements presumed to follow the Reversion. — Public Burdens. — He must be careful to preserve the boundax-ies of the land demised to him ; for if he permits them to be lost or destroyed, so that the les- sor's premises cannot be distinguished from his own, he must either restore the land specifically, or give him other land of equal value.* If he encloses land, whether adjacent to or in the vicinity of the demised premises, and whether the land be part of the waste or of the highway, or belongs to the landlord or some third person, the presumption at the end of the term is, that the enclosure is part of the holding and was made for the benefit of the landlord.^ And such presumption is not rebutted by the fact that the land taken in by the encroachment is separated by a brook from that which the ney ». Monroe, 44 Maine, 195 ; Pickard v. Collins, 23 Barb. 444 ; and see ante, § 175. 1 Warren v. Kauffrnan, 2 Phila. 259; Weston v. Incorp. of Tailors, Hay, 66; 14 F. C. 1232 ; Moore v. Goedel, 34 N. Y. 527; Killion v. Power, 51 Pa. St. 429. Where a water-closet in the upper part of a house over- flowed in consequence of the valve being out of order, and there was no evidence of any negligence with regard to the fittings of the water-closet, or that the occupant knew the valve was out of order; it was held that he was not liable for the damage, as there was no obligation on him, un- der all circumstances and at all hazards, to keep the pipes from overflow- ing and his room water-tight. Ross v. Fedden, L. R. 7 Q. B. 661. ^ Coupland v. Hardingham, 3 Camp. 398 ; Anderson v. Dickie, 1 Rob. (N. Y.) 238; Healey v. Mayor, 3 Hun, 708. ' Ante, § 175. * Att'y-General v. FuUerton, 2 Ves. &. B. 263; Willis v. Parkinson, 1 Swanst. 9. ^ Andrews v. Hales, 2 Ellis & B. 849. So where he acquires a private right of way. Dempsey v. Kip, 61 N. Y. 462. SEC. II.] tenant's eights generally, 207 tenant occupies: for to fall within the rule it need not be immediately adjacent; it is sufficient that it be near.^ He is also bound to the performance of all such duties as the ordinances of any city or town may from time to time impose upon him or the premises in his occupation, by virtue of his residence within the boundaries of such incorporation.^ § 179 a. Liabilities to Co-tenant. — He must, at the same time, respect the rights of his co-tenant, and will render him- self liable to an action for obstructing or disturbing him in the use of the premises : ^ and has no right to make improve- 1 Lisburne u. Davies, L. E. 1 C. P. 259; Kingsmill v. Millard, 11 Eich. 313. This presumption does not seem to prevail for the landlord's benefit as against third persons: Doe v. Massey, 17 Q. B. 373; or if the tenant during the term does some act disclaiming his landlord's title: Kingsmill v. Millard, supra; nor if he has been in possession of such land previous to his taking a lease of the adjoining land: Dixon v. Bates, L. R. 1 Exoh. 259; and a fence fronting on a highway for twenty years is not to be taken as the true boundary thereof, if the original boundary can be made certain by ancient monuments, although they are not now in existence: Wood v. Quincy, 11 Cush. 487. ' = Rex V. St. Luke's Hosp., 2 Burr. 1053; Milward v. Caffin, 2 W. Bl. 1330. ° Per Wilde, J., in Keay v. Goodwin, 16 Mass. 3; Newton v. Newton, 17 Pick. 201. In a case arising in the city of New York, the first story, ■with the basement and under-cellar, of a four-story store was leased to the plaintiffs, and the three upper stories to the defendant, at the same time, each with the appurtenances. The entrance to the upper stories was in front, over a short entry leading to a staircase. This entry was separated from the residue of the first floor by three folding-doors, with bolts to fasten on either side. There was a hatchway in the floor of the same entry, leading to the basement and cellar, over which hatch a tackle and fall were placed, to raise and lower goods, the wheel of which was in the attic, and was worked by ropes passing down through the respective floors. The keeping of the folding-doors open in business hours was a great advantage to the occupant of the first floor. The opening of the hatch in that floor obstructed the passage to the upper stories, unless per- sons passed through the folding-doors. In a contest as to the rights of the respective parties, the Superior Court of the city of New York held that the tenant of the first and under stories had the right to use the hatchway in the entry, and the tackle and fall for depositing the goods in the basement and cellar, and elevating them therefrom, making use of them in good faith, and not keeping the hatch open unnecessarily; that the tenant of the first floor had the right to keep the folding-doors open 208 EIGHTS AND LIABILITIES, ETC. [CHAP. VI. ments on the property and charge his co-tenant with a pro- portion of the expense, without the consent of the co-tenant, express or implied ; although he may make such repairs as are necessary to preserve the property from waste, at the expense of all the joint owners, without asking their consent.^ He may purchase an outstanding or adverse claim to the common property, but equity will not permit him to acquire such a title, and hold it for his own benefit to the exclusion of the others;'^ whether he purchases in his own name, or procures another person to purchase for him.^ This rule, however, will be modified by circumstances, whenever its strict application would be inequitable.* But the other co-tenant must exercise reasonable diligence in making his election to participate in the benefit of the purchase ; and unless he makes such an election, and contributes or offers to contribute his proportion of the purchase-money actually paid, he will be deemed to have repudiated the transaction.'' Nor can he maintain an action against his co-tenant in tres- pass for an entry upon the land, or for damages sustained by a neglect to repair, without a previous request by the plaintiff to join in making such repairs.^ during business hours in the daytime, free from the control of the tenants of the lofts, and that each had the right to close and fasten them at night; and that the tenant of the lofts might pass in and out through the folding- doors, when the hatchway was in use by the tenant of the first floor. Browning v. Dalesme, 3 Sandf. 18. When the lessee in possession of premises has, under the lease, the right to erect and maintain signs in front of a portion of the property, the lessee of another part of the same building will be restrained by injunction from impairing such right. Both the landlord and those claiming under him are estopped from acts which defeat the right. Snyder v. Hersberg, 11 Phila. 200. 1 Calvert v. Aldrich, 99 Mass. 74; Taylor v. Baldwin, 10 Barb. 626; Story, Eq. § 1235; Loring v. Bacon, 4 Mass. 575; Converse v. Ferre, 11 id. 325; Mumford v. Brown, 6 Cow. 475; Coffin v. Heath, 6 Met. 80; ante, §§ 114-117. 2 Burhans v. Van Zandt, 7 N. Y. 528 ; Van Horn v. Fonda, 5 Johns. Ch. 388. 8 Dubois V. Campau, 24 Mich. 360; Dufi v. Wilson, 72 Pa. St. 442. < Buchanan i>. King, 22 Gratt. 14; Freutz v. Klotch, 28 Wise. 312. 5 Mandeville v. Solomon, 39 Cal. 125, 133. s Van Orman v. Phelps, 9 Barb. 500; Moody v. Buck, 1 Sandf. 304; Doane v. Badger, 12 Mass, 95; nor to recover documents relating to the SEC. II.] tenant's eights generally. 209 § 180, Not to deny Landlord's Title, nor attorn to Stranger. — The tenant must also regard the interest of his landlord, with respect to possession, and not only maintain fealty him- self but give due notice of any attempt made to dispossess him.i His possession is always to be considered the posses- sion of the lessor, and he is never permitted to deny the title under which he entered.^ A tenant in possession under one title can make no valid attornment to any one not in privity with that title.^ If, however, a tenant should acquiesce in joint estate, although an action of waste, or an injunction to stay waste, will lie as between joint tenants or tenants in common: Hawley v. Clowes, 2 Johns. Ch. 122; s. c. 12 Johns. 484; 2 N. Y. E. S. 334, § 3 ; Smallman V. Onion, 3 Bro. Ch. 621; Hole v. Thomas, 7 Ves. 589; Twoit v. Twort, 16 id. 128. Persons who occupy the same building, and have each the privilege of using the water-pipes, can only be held responsible for dam- ages resulting from their negligent use or care, on proof of negligence on their part; and neither is responsible for the negligence of the others; though they may be jointly liable if their obligations under the lease are joint. Moore v. Goedel, 7 Bosw. 591. 1 The relation of landlord and tenant is so far confidential as to render it inequitable for a tenant, who is also a lien creditor to issue execution and buy in the property at a sherifE's sale without notice to the landlord, and the landlord, upon payment, may attack a title so obtained. Mathews' Appeal, 104 Pa. St. 444, and see Lansman v. Drahos, 10 Neb. 172. 2 The statutes of New York, in order to secure the landlord against collusion between his tenant and third persons, and thereby prevent a change of possession to his prejudice, oblige every tenant to whom a dec- laration in ejectment, or any other process, proceeding, or notice of any proceeding, to recover the land occupied by him, or the possession thereof, shall be delivered, forthwith to give notice thereof to his landlord, under the penalty of forfeiting three years' rent of the premises so occupied by him ; which may be sued for and recovered by the landlord, or person of whom the -tenant holds. 1 R. S. 748, § 27. Under this statute it has been held that a landlord, or other person, who is entitled by statute to be substituted in the place of, or joined with, the defendant in an action of ejectment, who, without causing himself to be made a party, defends such suit unsuccessfully, in the name of the original defendant, will be ordered to pay the costs of the plaintiff, on motion, after execution against the defendant on the record has been returned unsatisfied. Farmers' L. & T. Co. V. Kursch, 5 N. Y. 558. » Fuller V. Sweet, 30 Mich. 237. So by statute in Mississippi, Tucker V. Whitehead, 58 Miss. 762; McNamee v. Relf, 52 id. 426. See to the general rule, Johnson v. Futch, 57 Miss. 73; Bryant v. Winburn, 43 Ark. 28; Marsan v. French, 61 Tex. 173. Where the landlord by his own VOL. I. — 14 210 EIGHTS AND LIABILITIES, ETC. [CHAP. VL the wrongful act of a stranger, it will not bind the landlord when he regains possession ; as, if he suffers windows, newly opened by his neighbor, to remain unobstructed for more than twenty years, and so to become ancient lights, the landlord, at the expiration of the term, will not be bound thereby, but may shut up the lights, or treat them as if they had been newly opened.^ § 181. To be compensated for Injury done for public Bene- fit — At common law any person, in case of actual necessity and to prevent the spread of a fire, might prostrate a building in a block or street, without being responsible in trespass or otherwise ; and the sufferer had no legal redress for any in- jury he might have sustained against the individual who did the act.2 But the injured party, in all cases where his prop- acts acknowledges the title of another, he is estopped to enforce a claim for rent against a tenant who, relying on such acts, has paid rent to the other party. Winterink v. Maynard, 47 Iowa, 366. Where the lessor is one of two claimants to land, his lessee in possession and paying rent to him, cannot be held liable for rent to the other claimant, since he could not have resisted suit brought by his lessor to recover such rent. Keith ». Paulk, 55 id. 260. As to an attornment to a mortgagee, see Jones v. Clark, 20 Johns. 51; Magill v. Hinsdale, 6 Conn. 464; Smith v. Shepard, 18 Pick. 147. By statute in Iowa an attornment is void unless to a mort- gagee "after the mortgage has been forfeited," these words being con- strued to mean after the mortgage has been foreclosed, and the period for redemption expired, the mortgagor being entitled to redemption. Mills v. Hamilton, 49 Iowa, 105. By 1 R. S. 744 (N. Y.), § 3, the attornment of a tenant to a stranger is absolutely void ; and will not in anywise affect the possession of his landlord, unless it be made, — 1. With the consent of the landlord; 2. Pursuant to or in consequence of a judgment at law, or the order of a court of equity ; or, 3. To a mortgagee after the mortgage has become forfeited. " Wherever the relation of landlord and tenant shall have existed between any persons, the possession of the tenant shall be deemed the possession of the landlord, until the expiration of twenty years from the termination of the tenancy; or, where there has been no written lease, until the expiration of twenty years from the time of the last payment of rent; notwithstanding such tenant may have acquired another title, or may have claimed to hold adversely to his landlord. But such presumption shall not be made after the periods herein limited." 2 R. S. 294, § 13. » Jesser v. Gifford, 4 Burr. 2141; Daniel v. North, 11 East, 372. ^ Republica v. Sparhawk, 1 Dall. 357; 2 Kent, Com. 338; White v. SEC. II.] tenant's eights genekallt. 211 erty was taken and destroyed for the public good, was held to be entitled to compensation from the public.^ The Constitu- tion of the United States affirms the common-law principle, and provides that private property shall in no case be taken for public use, without just compensation being made.^ The application of this principle extends not only to the rights of the owner of the building, but to the protection of the tenant's interest also, who is entitled to recover damages from the public treasury, not only for his interest in the building, but also for the merchandise or other personal property belonging to him which was in, and destroyed with the building. This was so held in a case arising out of the great fire which oc- curred in the city of New York in December, 1835 ; where the court recognized the principle that, in case of necessity, and to prevent the spread of a fire, the ravages of a pesti- lence, or any other great public calamity, the private property of an individual may be taken and destroyed for the good of the many, without subjecting those whose duty it is to protect the public interests to any personal liability for the damage which the owner thereby sustains ; bat that in all such cases, as well as in the event of a building being destroyed by a mob, the public, or the corporation of the city within whose bounds such destruction happens, are liable to make good all City Council, 2 Hill (S. C), 571. In the Saltpetre case, 12 Co. 13, it was resolved by all the judges " that for the commonwealth, a man shall suffer damage; as, for saving a city or a town, his house shall be plucked down, if the next be on fire; and a thing for the commonwealth every man may do without being liable to an action." And the same principle was afterwards adjudged in Mouse's Case, id. 63, which was an action of trespass against the defendant, who was a passenger in a barge, for throw- ing out the goods of the plaintiff in a storm; where the court held that, in case of necessity, and to save the lives of the passengers, it was lawful for the defendant to cast the goods out of the barge. See also Dyer, 36 ; Bac. Abr., &c. 1 Per Buller, J., Governor v. Meredith, 4 T. R. 797. " Const. U. S. ai-t. 5 of Amend. This provision of the Constitution is understood to apply to cases where property is taken by the United States authorities for public uses. But the legislatures of all the States have also provided some mode of compensation for an injured indi- vidual, where his property has been taken or destroyed for the public good. 212 BIGHTS AND LIABILITIES, ETC. [CHAP. VI. damages which either landlord or tenant may suffer thereby .^ It was admitted, however, in the same case that no damages are recoverable against the city if the building, or the prop- erty therein, would have been inevitably destroyed by the flames, if it had not been pulled down ; or if it was on fire, and beyond the hope of extinguishment, when the order of the magistrate to demolish it was given.^ § 182. Liability to Third Persons. — To Under-tenants.^ — As third persons are liable to both landlord and tenant for in- juries committed by them, so, on the other hand, both land- lord and tenant may, as we have seen, respectively become liable to such third persons.^ But, where it is the business of the county or parish to repair, neither landlord nor tenant • Mayor i-. Lord, 17 Wend. 285; 8. c. 18 id. 126; Same v. Pentz, 24 id. 668. But owners of goods who have no estate or interest in the building thus destroyed have no claim to damages for their destruction. Stone V. Mayor, 25 Wend. 157 ; Russell v. Mayor, 2 Den. 464. The fact that the owner is insured does not affect his right to compensation, nor entitle the corporation to a deduction for the amount recoverable, or which has been received upon the policy; for the insurers would be en- titled to subrogation, or to a reduction for the amount received by the owner from the city. Mayor v. Pentz, supra. Where the provisions in a lease for years gave the lessee rights which were not incident as of course to his tenancy, and imposed on him duties such as do not necessarily fall upon a lessee for years, it was held that such provisions were not such modifications of the relation of the tenant and the reversioner as to make their interests other than merely successive in point of time in a portion of the leased premises taken for public purposes under the right of emi- nent domain ; and that, therefore, the damages for such taking were to be assessed and awarded in a gross sum, and were payable to a trustee for the parties appointed for that purpose under the statute. Boston v. Bobbins, 126 Mass. 384. ^ See also Pentz v. ^tna F. I. Co., 9 Paige, 568. A claimant against the city must be able to show, with reasonable certainty, that the act of pulling down was wholly unnecessary, in order to take the case out of the ordinary losses by fire. And if, at the time it was done, the buildings all around were on fire, and were afterwards destroyed ; and, according to every probability, the fire would have destroyed the building in question if it 'had not been blown up, it is a loss by fire within the meaning of a policy of insurance, payable by the insurer, and not by the city. Corlies v. City F. I. Co., 21 Wend. 367. s Payne v. Rogers, 2 H. Bl. 350. Ante, §§ 175, 175 a. SEC. HI.] DIVISION FENCES. 213 will be responsible for the damages.^ If a stranger, whose goods have been, or are about to be, distrained upon the ten- ant's premises, should, in order to redeem them, be obliged to pay the rent, he may recover it again from the tenant, as for money paid to his use.^ And the same rule applies where the goods of a lodger, or an under-tenant, have been so taken.* But an under-tenant, whose goods have been sold under a distress warrant issued by the original landlord for rent due from his immediate tenant, cannot maintain an action for money paid to the use of the latter, because the money never was the under-tenant's; for, on the sale under the distress, the money paid by the purchaser immediately vested in the original landlord.* SECTION in. DIVISION FENCES AND PAETT-WALLS. § 183. Tenant bound to maintain. — Common-law Rule. — We have observed that the tenant, by virtue of his occupation, ia liable to third persons for the consequences of a neglect to keep up and repair division fences, party-walls, and highways ; his liability in this respect being coextensive with that of the landlord.* At common law no person was bound to fence his ^ Russell V. Men of Devon, 2 T. R. 671. Either one or the other, according to circumstances, may be liable for a variety of wrongful acts, see §§ 775, 776, &c. 2 Sapsford v. Fletcher, i T. R. 511. 8 Exall V. Partridge, 8 T. R. 308. * Moore v. Pyrke, 11 East, 52. Where a lessee for years abandons the premises, the lessor, for the preservation of the property and the protection of his interests, may collect rent from the under-tenants, and procure new ones, for the benefit of the lessee; and, if he has never refused to place the property under the lessee's control, on his complying with the lease, such acts will not be considered as a cancelling of the lease and the lessee and his surety will be bound for the difference between the amount of the rent payable by the lease, and that received from the under-^ tenants. Roumage v. Blatrier, 11 Rob. (La.) 101. 6 Taylor v. Whitehead, 2 Doug. 745; St. Louis, V. & T. R. R. v. Wash- burn, 97 111. 253; Baynes v. Chastain, 68 Ind. 376. 214 EIGHTS AND LIABILITIES, ETC. [CHAP. VI. land against the cattle of another ; and for any trespass they might commit their owner was answerable, whether they en- tered from his own close, the close of a third person, or from the highway.! But as the settlement of lands progressed, and fences were found convenient for preventing disputes between neighbors, their maintenance gradually ripened into perma- nent obligations, and became the subject of statutory regula- tion. In some States the common-law rule does not seem to have been adopted, the owner of animals being under no obli- gation to fence them in, and they may wander over any un- fenced land as if it were a common. The occupant of land must keep them out of his grounds at his peril, and is justi- fied in driving them away from his unfenced land in any reasonable manner; but still, if they break through a suffi- cient fence, ttey are liable for damages consequent upon the trespass, as at common law.^ In other States the matter is regulated by general statutes, or by local ordinances. Thus, in New York it is provided that, when two or more persons shall have lands adjoining, each of them shall make and maintain a just proportion of the division fence between them.3 § 184. statutory Provisions. — Similar statutes exist in Maine, Vermont, Indiana, New Jersey, and other States ; some of them preventing any recovery against the owner of 1 Stafford v. Ingersol, 3 Hill, 38; Hilton v. Aukesson, 27 L. T. N. 8. 51.'). Rust V. Low, 6 Mass. 90; Minor v. Deland, 18 Pick. 266; Thayer v. Arnold, 4 Met. 589. 2 Cleveland R. Co. v. Elliott, 4 Ohio, 474; Waters v. Moss, 12 Cal. 535; Laws v. N. C. R. R. Co., 7 Jones (N. C), 468; N. Y. & Erie R. Co. V. Skinner, 19 Pa. St. 801; Herold v. Myers, 20 Iowa, 378; Stover u. Shugart, 45 111. 76; Larkin v. Taylor, 5 Kans. 433 ; McManus v. Finan, 4 Iowa, 283. 2 By the laws of New York, 1867, May 9, it is unlawful for cattle of any description to run at large in any public street, park, place, or high- way. And the overseers of highways within their districts, and street commissioners in incorporated villages, are required to seize them wher- ever found, and enforce the penalty prescribed by law. Any private person may also seize any animal trespassing on land owned or occupied by him, or in the highway opposite to his land. See also Avery v. Max- well, 4 N. H. 36; Stackpole v. Healy, 16 Mass. 33. SEC. III.] DIVISION FENCES. 215 cattle breaking through an insufficient fence, and others em- powering a land-owner to repair, at the expense of an adjoin- ing proprietor, fences which the latter neglects to repair.^ Sometimes an exception is made in favor of the owner of land who prefers to let his land lie open ; but this is by no means a desirable privilege to exercise, for the owner of all domestic animals, being bound, at his peril, to restrain them from trespassing upon the lands of his neighbor, is not only precluded, if he neglects to do so, from recovering damages arising from any injury they may sustain by going upon those lands, but is himself liable to make compensation for any tres- pass they may commit, whether he knows of their vicious pro- pensities or not.2 Fences are in fact designed to keep one's own cattle at home, and not to guard against the intrusion of those belonging to other people. But, whether fenced or not, an owner of land will in no case be justified in injuring domes- tic animals found trespassing thereon ; and if he does so, he will be liable for all the injury he inflicts. He is only entitled to an action for the trespass, or may impound the animals, if he thinks proper, to procure satisfaction for the damage done by them ; and this he may do at any time, unless their owner 1 Myers v. Dodd, 9 lud. 290; Chambers v. Mathews, 3 Harrison, 368; Holden v. Shattuck, 34 Vt. 336; Wills v. Walters, 5 Bush, 351; State v. Perry, 64 N. C. 305; Eames v. Patterson, 8 Greenl. 81. 2 HoUaday v. Marsh, 3 Wend. 142; Little v. Lathrop, 5 Greenl. 356; Bush 1.. Brainard, 1 Cow. 78; Clark u. Brown, 18 Wend. 221; Beckwith V. Shordike, 4 Burr. 2092; Angus v. Eadin, 2 South. 815; Dolph v. Fenis, 7 W. & S. 367. This subject has been fully considered in Massachusetts, where Parsons, C. J., laid down the law with great precision. After stating the principle just mentioned, and that it might be otherwise by force of prescription, where such prescription exists, he adds: "If bound by prescription to fence his close, he was not bound to fence it against any cattle but such as were rightfully in the adjoining close. If not bound at common law to fence his land, he was, nevertheless, bound to keep his cattle on his own ground, and prevent them fronfi escaping. The legal obligation of the tenants of adjoining lands to make and maintain partition fences, where no prescription exists, and no agreement has been made, rests entirely on statutory provisions, and trespass will lie against the owner of cattle entering on the grounds of another, though there be no fence to obstruct them, unless he can protect himself by statute, pre- scription, or agreement." Rust v. Low, supra; Little v. Lathrop, 5 Greenl. 356. 216 EIGHTS AND LIABILITIES, ETC. [CHAP. VI. can protect himself under some statute, or by a -written agree- ment with his neighbor, or its equivalent prescription.^ In New York, the statute applies only to the rights and obliga- tions of tenants of adjoining closes.^ The rights of persons having no interest in either of such closes remain unaffected by it, and are to be defined and protected by the common law. Consequently, the owner of an animal which trespasses upon another's land, breaking through the fence between that land and the land of a third person, can recover no damages for any injury sustained by reason of a defective fence of the defendant.^ It has been also held that the statute does not extend to injuries sustained by the death of cattle caused by eating unripe corn when they are unlawfully in the field of the party who is in default for not keeping up his fence ; nor is it intended to take away any previously existing common- law remedy, for such damages as may have been sustained by the negligence or misconduct of a neighbor.* 1 Matthews v. Fiestel, 2 E. D. Smith, 90 ; Palmer v. Silverthorn, 32 Pa. St. 65 ; Rust v. Low, 6 Mass. 90. ^ This regulates the liability to maintain existing fences already estab- lished, as between the proprietors of adjoining closes ; and, unless one of the owners chooses to let his lands lie open, each party is bound to make and maintain one-half of the division fence; and if either party is in default, he has no remedy for a trespass committed by the cattle of the other. When the party who suffers by a trespass is not in fault, the same statute affords him a remedy, by calling in the fence-viewers, to appraise the ordinary damages that may accinie to his land, or to the crops, fruit-trees, shrubbery, or fixtures connected therewith. 1 R. S. 354, § 37, amended by law 1838, p. 253. Where a person shall have chosen to let his land lie open, if he shall afterwards enclose it, he shall refund to the owner of the adjoining land a just proportion of the value, at that time, of any division fence that shall have been made by such adjoining owner; or he shall build his proportion of such division fence. 1 N. Y. R. S. 353, § 31; Hewitt v. Watkins, 11 Barb. 409. * Rust V. Low, supra ; Lawrence v. Combs, 31 N. H. 331. The stat- ute applies only in favor of the owner of animals lawfully upon the adjoining premises. HoUaday v. Marsh, 3 Wend. 142; Lord v. Worm- wood, 29 Me. 283. ^ Stafford ». Ingersol, 3 Hill, 38. The owner of a close is obliged to fence only against cattle lawfully on the adjoining land. Melody v. Reab, 4 Mass. 471; Stackpole v. Healy, 16 id. 33; Lyman v. Gipsen, 18 Pick. 422. SEC. in.] DIVISION FENCES. 217 § 184 a. Respective Duties of Parties. — If disputes arise about the proportions of fence to be made by each proprietor, they must be settled by the fence-viewers of the place in which the lands are situated ; ^ and then, if either party con- tinues to neglect his portion of the fence, after a month's notice to repair, the other party may make a fence, at the expense of the party neglecting. The effect of the statute, requiring each of the owners of adjoining lands to maintain his proportion of the partition fence, after it has been divided, is to protect each from liability for any trespass committed upon the lands of the other, by reason of any defect in that part of the fence which the other was bound to keep up. If the cattle of the party' whose portion of the fence is defective, trespass upon his neighbor in consequence thereof, the latter may have his damages appraised under the statute, instead of resorting to an action of trespass; but he is not bound to adopt this course, and may, if he prefers, still have his com- mon-law remedy .2 § 185. Joint Obligation to maintain. — But unless such a fence has been divided by an agreement between the par- ties, by a decision of the fence-viewers, or by prescription (that is, by at least twenty years' usage), neither party is obliged to make any particular part of it. There is a joint obligation, by which- each is bound to make every part ; and, if the fence be defective, each party is chargeable with the consequences of the deficiency. If either neglects to make or repair his just proportion, after notice, the other may make the whole, and recover the contributory share of the one so 1 The assessors of taxes in each town, who are commissioners of high- ways in New York, are also ex officio fence-viewers for the town. '^ Clark V. Brown, supra; Saxton v. Bacon, 31 Vt. 540. The damages which fence-viewers are authorized to ascertain, are such only as ordi- narily accrue from defective fences; and they have no right to assess the value of cattle which escape through a defective fence into a corn-field, and eat so much corn that they die. Id. A zigzag or Virginia fence is not a proper fence. Herrick v. Stover, 5 Wend. 580; but see Ferris V. Van Buskirk, 18 Barb. 397. As to encroachment of fences upon high- way, see Case v. Thompson, 6 Wend. 634; Spicer v. Slade, 9 Johns. 359; Fitch V. Comm'rs, 22 Wend. 132. 218 EIGHTS AND LIABILITIES, ETC. [CHAP. VI. neglecting.^ And upon the escape of cattle from either close into the other, through a defect in any part of the fence, the owner of the cattle is not permitted to allege the' escape to be from the deficiency of the other's fence.^ If a man's cattle are lawfully placed on A.'s land, and escape thence to the land of another, their owner is entitled to the same exemption from liability that A. might claim in case the cattle had been his, but nothing more. And when B.'s cattle were rightfully pas- turing on A.'s land, and escaped thence to the adjoining land of C, through a defect in the division fence which A. was bound to repair, C. was allowed to maintain trespass against B.3 Although if A. had the care and custody of such cattle for the purpose of depasturing thenv, he would also have been liable in the same manner, and to the same extent, as the owner.* § 186. Certain Animals kept at Owner's Peril. — Highways not Pasture. — With regard to such animals as are not usually restrained by fences, the owner, whether landlord or tenant, must still keep them on his premises at his peril ; and, if they injure his neighbor, he is accountable for the trespass, with- out regard to the sufficiency of the enclosure. But if they are such as are usually restrained by fences, he is not liable for damages if they escape from his premises into his neighbor's land, through the defect of a fence which the neighbor is legally bound to repair.^ A dog is also said to be an excep- ^ Matter of Roch. & S. R. R. 4 Paige, 553. Any one occupying land as tenant at will, or sufferance, is entitled to the benefit of the statute of division fences, and may maintain an action for the expense of repair- ing the portion of the adjoining owner. The statute is for .the benefit of occupants, without respect to the particular estate enjoyed. Bronk V. Becker, 17 Weud. 320. But it applies only in favor of the occupants of adjoining lands. Stafford v. Ingersol, 3 Hill, 38. ^ Rust V. Low, 6 Mass. 90. ' Stafford v. Ingersol, supra. * Barnum v. Vandusen, 16 Conn. 60. 8 Id. ; Shepherd v. Hees, 12 Johns. 433. The tenant of a land-owner who is bound by contract to maintain the fences along the track of a railroad company cannot recover against the company for an injury to his cattle occasioned by the failure of his landlord to maintain the fences. Ind. P. & C. R. R. V. Petty, 25 Ind. 413. SEC. m.] DIVISION FENCES. 219 tion to the rule, for his owner is not liable for his trespasses.^ And with respect to a highway, its dedication as such confers no right upon the public to use it as pasture-ground, or for any other purpose. Subject to the right of passage and to make repairs, the soil, together with the grass and other herb- age growing thereon, are private property. If cattle, there- fore, are placed upon it for the purpose of grazing, and escape into an adjoining close, the owner of the cattle, unless he owns the soil of that part of the highway on which he placed them, cannot avail himself of the insufficiency of the fences, in ex- cuse of the trespass.^ But if, while cattle are being driven along the highway, they stray from the sight of the person having them in charge on adjoining unenclosed land, and he makes fresh pursuit to bring them back, the owner will not be chargeable for this involuntary trespass on the land, nor for the herbage they may crop as they go along.^ § 186 a. Right to remove Fence. — But no person is bound, either by statute or common law, to keep up a division fence always ; for, if he wishes to throw his lands open, preferring to be remitted to his common-law rights and duties, and is not 1 Mason v. Keeling, 12 Mod. 335; 8. c. 1 Ld. Ray. 606. 2 Avery w. Maxwell, 4 N. H. 36; Wells v. Howell, 19 Johns. 385; North Penn. R. Co. v. Rehman, 49 Pa. St. 101; Lyman v. Gipson, 18 Pick. 422. The same principle applies to a common ; and, in an action for digging a pit on a common, by reason of which the plaintiff's mare, straying there, fell into the pit and was killed, it was held that no action lay; for the plaintiff had no right in the common, and so, as against him, the digging of the pit was lawful. Blyth v. Topham, Cro. Jac. 158. So, where maple sugar had been left by the defendant in buckets in an open shed on his own unenclosed Woodland, and the plaintiif's cow came in the night and drank the synip, which caused her death, it was agreed by the court that, although the defendant was guilty of gross negligence, yet the plaintiff, having no right to permit his cattle to go at large on the defendant's land, could not recover. Bush v. Brainerd, 1 Cow. 78. * Stackpole v. Healey, 16 -Mass. 35. If several animals belonging to different owners unite in doing mischief, each owner is liable for the damage done by his own animal only. Van Steenburgh v. Tobias, 17 Wend. 562; Auchmuty v. Ham, 1 Den. 495; Russell v. Tomlinson, 2 Conn. 206; Adams v. Hall, 2 Vt. 9. And, in the absence of proof as to how much damage was done by each, the presumption is that all the cattle did equal damage. Partenheimer v. Van Order, 20 Barb. 479. 220 RIGHTS AND LIABILITIES, ETC. [CHAP. VI. restricted by any prescriptive right of the adjoining proprietor to have them maintained, he may remove his fences, after having given sufiScient notice of his intention.^ If, however, he removes his fence without having previously given the three months' notice required by the statute, a party who may be injured thereby is not limited to a suit for the recovery of the actual damages sustained in consequence of such re- moval; but may, after a month's notice, replace the fence, and recover the expense thereof in an action against his neighbor. If actual damages are sustained, — as the loss of a crop, for instance, — caused by the premature removal of the fence, such damages may be recovered in addition to the expense of the fence.^ But if he gives the required notice, and then removes his portion of tlie fence, and his cattle pass through the opening upon his neighbor's land, he is liable for the trespass ; for the only effect of the statutory permission is to remit the parties to their common-law rights and duties.^ An occupant of land who is bound to maintain a division fence, may place half of it, of reasonable dimensions, on the land of the adjoining owner, and he may cut half of a ditch on the land of such owner when a ditch is proper for a par- tition fence.* § 187. Right to erect Buildings. — With respect to the erection of buildings, we observe that every proprietor of 1 Chrysler v. Westfall, 41 Barb. 159. To exonerate a person from liability to contribute to the cost of a partition fence, he must give notice that he has elected to let his lands lie open to the public. Perkins V. Perkins, 44 Barb. 134. ^ Richardson v. McDougall, 11 Wend. 46. Evidence that B. and his ancestors had for fifty-six years maintained a partition fence between his land and another's, and that said fence was an old one fifty-six years ago, and B.'s ancestor, then owning the land, said that such fence had always been maintained by himself and his ancestors, was held sufficient proof of a prescriptive obligation on B. to maintain it. Binney v. Hull, 5 Pick. 503. And this obligation was not terminated by B.'s becoming a tenant in common of the adjoining land. Id. 8 HoUaday v. Marsh, 8 Wend. 142. * Newell V. Hill, 2 Met. 180. If one places a fence over the line, the owner of the other property may lawfully remove it. Thayer v. Wright, 4 Den. 180. SEC III.] PABTY-WALLS. 221 land, whether he be a landlord or tenant, is his own judge not only of the propriety of building on it, or leaving it va- cant, but also, when he does build, of the manner and extent of building. In the absence of statutory provisions, he may build with what material he pleases, and is under no obliga- tion of giving his neighbor the use or advantage of his land, by way of support or easement of any description. If a stranger enters upon his unoccupied land, erects buildings, or makes permanent improvements upon it, he is not obliged to recompense him for any portion of the expense of improve- ment on recovering possession of the land. And if the stranger, under these circumstances, should undertake to re- move such buildings from the land before the owner recovers possession, he is liable in trespass for their value.^ § 188. Division-walls, separate Ownership in. — Party-walls. — Neither is there any obligation upon the proprietors of ad- joining building-lots in a city, to unite in building a party- wall on the dividing line of such lots. The common use of a wall adjoining lands belonging to different owners is primd fade evidence that the wall and the laud on which it stands belong to the owners of those adjoining lands in equal moie- ties as tenants in common.^ But if the precise extent of land originally belonging to each can be ascertained, the presump- tion of a tenancy in common does not arise, and each party is the owner of so much of the wall as stands upon his own land.3 If a man inserts the beams of his house in his neigh- bor's wall without permission, it does not thereby become a party-wall, for the owner may pull it down, or sue for a tres- 1 Moore v. Cable, 1 Johns. Ch. 385; Gillet v. Maynard, 5 Johns. 85; Dewey v. Osborn, 4 Cow. 329; Erwin v. Olmsted, 7 id. 229. No one but the adjoining owner or possessor has any interest in the duty or obligation of another to build or maintain a division fence; and the omission to do so, though the want of the fence results in injury to a third person, gives him no ground of action. Bronk v. Becker, 17 Wend. 320; Ricketts v. E. & W. Ind. Docks Co., 12 C. B. 160; Ryan v. Roch. & S. R. R., 9 How. Pr. R. 453. 2 Cubitt V. Porter, 8 B. 8e C. 257. 8 Ogden V. Jones, 2 Bosw. 685; McConnell v. Kibbee, 33 111. 175^ Peyton v. Mayor, 9 B. & C. 725. 222 EIGHTS AND LIABILITIES, ETC. [CHAP. VI. pass.i A party-ivall is properly that which is built on the common property, of two owners of adjoining tenements, at their joint expense, each one continuing owner of his land with an easement in or right to use the wall for the mutual support of their respective buildings. The statute relating to party-walls does not make them, nor the land on which they stand, common property : each one owns in severalty the por- tion of wall standing on his own land, with no qualification, except that neither has a right to pull the wall down, so long as it remains sound, without the consent of the other.^ But this observation applies only to a wall which is admitted to be a party- wall ; for if one of two adjoining owners places half of a wall on the adjoining lot without an agreement that it shall be built at the joint expense, the owner of the latter is not liable to contribute towards the expense of the wall, even if he subsequently uses that part of it which stands upon his own land.3 A division wall may, however, become a party- wall by agreement either express or implied ; for although such a wall may liave been built exclusively upon the land of one, if it has been enjoyed in common by the owners of both houses for a period of twenty years, the law will presume, in the absence of evidence to the contrary, that such use and en- joyment were permissive, and with an understanding that the wall should become a party-wall.* If such a wall is casually destroyed, or becomes ruinous, there is no obligation resting upon either owner as against the other to rebuild it, or to unite in building another.^ But the owners of a party-wall 1 Roberts v. White, supra ; nor is a license to make a window in such a wall, a justification of the act of inserting the beams. Id. If a com- mon wall is erected bj' tenants for years, though it may be a party-wall as between themselves, it will not create an easement binding upon the owner of the reversion in fee. Webster v. Stevens, 5 Duer, 553. 2 Joy V. Bost. Penny Sav. Bk., 115 Mass. 60; Ingals v. Plamondoii, 75 111. 118; Fettretoh v. Leamy, 9 Bosw. 510. » Roberts v. White, supra ; Stockwell v. Hunter, 11 Met. 445. ■* Brown v. Werner, 40 Md. 15. 5 Sherred v. Cisco, 4 Sandf. 480. In this case a party-wall had been built at joint expense, and was destroyed by fire, and the owner of one of the lots proceeded, without the concurrence of the owner of the other, to build a new wall on the site of the old one. The owner of the other lot subsequently built on his lot, and rested his beams in the new wall; and SBC. III.] PARTY-WALLS. 223 dividing their two lots are jointly liable for injuries sus- tained in consequence of its falling througli decay and want of repair.i § 189. Respective Rights as to Party-walls. — So a wall may be a party-wall for a portion of its length or height, and an external wall for the residue of its length or height.^ Either owner has also a right to increase the height of a party-wall if it can be done, without detriment to the strength of the wall, or to the property of the adjoining owner. But he makes such addition at his peril.^ And if one proprietor adds to the height of a party-wall, and the other pulls down the addition, the former may maintain trespass against the other for pulling down so much of it as stood on the half of the wall which was erected on the plaintiff's soil.* If either pulls down a ruinous party-wall, for the purpose of rebuilding, he is bound to reinstate it in a reasonable time, and with the least inconvenience. If it was necessary to repair the old wall, the neighbor, although bound to contribute ratably to the expense of the new wall, is not bound to contribute towards building it higher than the old one, nor with more costly material : all fie was justified by the court in doing so, although he had not contributed to the expense of erecting such wall. 1 Klauder v. McGrath, 35 Pa. St. 128. ■^ Weston V. Arnold, 22 W. K. 284 ; 43 L. J. Ch. 123. "When a wall for a few feet from the ground is the dividing wall between two houses, and above that is the outside wall of one of them, the lower part may be a party-wall, but the other part is not. Id. 8 Brooks V. Curtis, 50 N. Y. 639. * Matts V. Hawkins, 5 Taunt. 20; and see Bradbee v. Christ's Hosp., 4 M. & G. 714. The maxim that qui facet consentire videtur was applied in an action to recover the value of one half of a party-wall, the defendant having reason to know that the plaintiff was erecting the wall with an expectation of payment for such value, and allowing him so to act without objection, in Day v. Caton, 119 Mass. 513. An agreement for a party- wall was held not to prohibit the extension of a building beyond it, in front and, in the rear. Wolfe «. Frost, -4 Sandf. Ch. 72. An agreement between adjoining owners, that one may insert the beams of his building into the othei-'s wall, and pay for the privilege of doing so, is a mere license, without any interest in the land, and need not be in writing. McLarney v. Pettigrew, 3 E. D. Smith, 111; Miller v. Aub. & Sy. R. R., 6 Hill, 61; Pierrepont i'. Barnard, 6 N. Y. 279. 224 EIGHTS AND LIABILITIES, ETC. [CHAP. VI. such extra expense must be borne exclusively by him who pulls down and rebuilds.^ But if he takes it down and re- builds when it was in a sound condition and sufficient for the purpose for which it was erected, without the consent of the other, he not only forfeits all claim to contribution from him, but makes himself liable for any damage that may be sustained from loss of rent, or necessary repairs.^ Whether it was necessary to take down and rebuild the wall is always a question for a jury ; but, supposing it to be necessary and that the work is done with proper skill and caution, the right of an owner of a building to take down a decayed and ruinous party-wall, for the purpose of rebuilding, after reasonable notice to the tenant of the adjoining building, is unques- tioned, nor is that right affected by the nature of the use and occupation of the adjoining building.^ § 190. Easements to use WaUs. — The right to use an ancient wall, in support of an adjoining building, stands upon a differ- ent footing.* If it was not strictly a party-wall, and the walls of the house pulled down stood wholly on its own lot, yet if the beams of the other house rested upon the wall pulled down, and had done so for a period of time sufficient to establish an easement by prescription, the owner of the ad- joining house would be entitled to have his beams inserted, 1 Campbell v. Mesier, 4 Johns. Ch. 334; s. c. 6 id. 21; Weld v. Nich- ols, 17 Pick. 538. The co- tenant is not liable for the expense of such improvements as are not necessary repairs, made in the absence of a con- tract express or implied; and no contract will be implied from the mere fact that the improvements were beneficial. Taylor v. Baldwin, 10 Barb. 626; Mumford v. Brown, 6 Cow. 475; Putnam v. Ritchie, 6 Paige, 405. "• Potter V. White, 6 Bos. 644. - Partridge v. Gilbert, 3 Duer, 184; s. c. 15 N. Y. 601. Held other- wise where the plaintiff was a lessee, with a covenant for quiet enjoyment. Armstrong v. Schermerhorn, 2 N. Y. Leg. Obs. 40. In New York, Philadelphia, Washington, and other cities, party-walls and buildings are specially regulated by statute. As to the effect of a city custom on this subject, see Bradbee v. Christ's Hosp., 4 M. & G. 714. * An ancient wall is one that was built to be used, and has in fact been used, as a party-wall for more than twenty years, by the express permis- sion and continuous acquiescence of the owners of the land on which it stands. Eno v. Del Vecchio, 4 Duer, 53, 63. SEC. III.] PARTY-WALLS. 225 for a resting-place, in the new wall.^ But, with respect to a partition wall which is erected partly on each lot, for the purpose of supporting both buildings, each of the owners has an easement in it, for the support of his own house. Neither of them has any right to remove or underpin it, either partially or wholly, unless it can be done without injury to the other's house. And if the owner of two adjoining lots erects build- ings on them, with a wall standing partly on each, intended to furnish a support to both buildings, and which has been used for such a purpose, and then makes a conveyance of either house and lot with its appurtenances, he thereby grants an easement for the support of the house conveyed, in so much of the wall as stands on the other lot, and makes it a party-wall. After such a grant, neither can remove the wall, nor so deal with it as to render it an inefficient support for the other's building without his consent. If either wishes to improve his own premises before the wall has become ruinous, or incapable of further answering the purposes for which it was erected, he must do it at his own risk and ex- pense.2 In all such cases, neither owner nor occupant can interfere with the wall, to the detriment of the other, without his consent. But where a common wall is erected by tenants 1 3 Kent's Com. 437. The corporation of the city of New York, by an ordinance of 1833, have regulated partition fences and walla. It requires them to be made and maintained by the owners of the land on each side; and, if the same can be equally divided, each party shall make and keep in repair one-half. Disputes concerning the division of the wall, and the parts to be made and repaired by each, or as to its sufficiency, are to be settled by an alderman or assistant of the ward. If the wall cannot be conveniently divided, it is to be made and kept in repair at the joint ex- pense. So much of the wall as is higher or lower than the city regulation, to be at the individual expense of the owner. And, on neglect of one party to contribute, the other may make the whole wall, and recover from his co-tenant his proportion of the expense. ' Eno V. Del Vecchio, 4 Duer, 53; s. c. 6 id. 17;Bradbee ». Christ's Hosp., 4 M. & G. 714; Hide v. Thornborough, 2 C. & K. 250. Where the owners of adjoining lots by agreement construct a wall partly on each lot, for the common support of their buildings, the wall so constructed, if used as such for twenty years, becomes a party-wall in the legal sense of the term, and the owner of each house has an easement for its support in that portion of the wall which stands on the adjoining lot. VOL. I. — 15 226 EIGHTS AND LIABILITIES, ETC. [CHAP. VI. for years, although it may be a party-wall as between them- selves, it will create no easement binding on the owner of the reversion in fee, that can prevent him, when the term expires, from dealing with his property as if no such wall had been erected.! § 191. Bounaary Trees, Ownersliip and Rights in. — As a man may abate an encroachment on his property, he may cut the roots of a tree so encroaching, in the same manner that he may lop its overhanging branches.^ If the tree grows in a hedge, dividing the land of two persons, with the roots ex- tending into the land of each, they are tenants in common of the tree ; but if it stands on my side of the line, and the roots grow in my land, the whole property of the tree is in me, though the boughs overshadow his land ; and although my neighbor may have a right to cut away the branches or the roots on his side, he has no right to convert either the branches or the fruit to his own use.^ And if line trees are destroyed by one of the adjoining proprietors, he is liable to an action of trespass, in favor of the other, whether the interest of such other be several, or that of a tenant in com- mon.* A man may, also, justify an entry on his neighbor's land, to retake his own property, which has been removed > Webster v. Stevens, 5 Duer, 553. 2 Jones V. Powell, Palm. 536. And see Hoffman v. Armstrong, 48 N. Y. 301. s AVelch V. Nash, 8 East, 894; Dyson v. Collick, 5 B. & A. 600; Beardslee v. French, 7 Conn. 125; Lyman v. Hale, 11 id. 177. The case of Master «. PoUier was an action "of trespass quare clausum frcgit et asportavit the plaintiff's boards. The defendant justified, that there was a great tree which grew between the close of the plaintiff and that of the defendant, and that part of the roots of the tree entered into the close of the defendant, and wei'e nourished by his soil; that the plaintiff cut down the tree, carried it into his own close, and sawed it into boards, and the defendant entered, and took and carried away some of the boards prout ei bene licuit. On demurrer to the plea, it was contended to be bad ; for, although some of the roots of the tree are in the defendant's soil, yet the body of the tree being in the plaintiff's soil, all the residue of the tree belongs to him also. And of this opinion is Bracton ; but if the plaintiff had planted a tree in the soil of the defendant, h shall be otherwise quod curia concessit." Rolle, 114. See also Betts v. Lee, 5 Johns. 348. * Dubois V. Beaver, 25 N. Y. 123. SEC. IV.] LIABILITY FOR NEGLIGENCE. 227 thither bj' accident. As in the instance of fruit falling upon the ground of another ; or in that of a tree which is blown down, or through decay falls upon the ground of a neighbor ; in which cases the owner of the fruit, or of the tree, may show the nature of the accident, and that he was not responsi- ble for it, and thus justify the entry. If, however, the fruit, or the tree, had fallen in that particular direction, in con- sequence of the owner's wilful act, or negligence, he could not justify the entry.^ SECTION IV, LIABILITY FOR NEGLIGENCE. §192. Tenant's Duty to Strangers. — The tenant's general obligation to repair, and so to use and manage the property in his possession that others shall receive no injury therefrom, is co-extensive with that of every other occupant of fixed prop- erty, rendering him liable to respond for any injury that may be sustained by his neglect to guard against its want of safety or any reckless management thereof, ^ — as, by not keeping the area in front of his house fenced, or the covers of his vaults sufficiently clos.ed, so that a person walking along in the street falls through and is injured. And where he directs his ser- vant to remove snow or ice from the roof of his house, which he does by negligently throwing it into the street, he becomes liable for any injury that may be received by a passenger there- from, whether the negligence was that of the servant or of some one whom the servant employed or requested to assist him.2 If he maintains a sink or vault upon his premises, from 1 For Tindall, C. J., in Anthony v. Haney, 8 Bing. 192. 2 Feital v. Midd. K. R., 109 Mass. 398. It was here held that a rail- road company lessee was liable for injuring a passenger, though the lease was illegal and void, as it was in actual possession and use of the tract without objection from the owner. 8 Althorf V. Wolfe, 22 N. Y. 366; Blake v. Ferris, 5 id. 48; Cheatham V. Hampson, 2 T. R. 318; Chicago v. Rabbins, 2 Black, 418; Randleson V. Murray, 8 Ad. & E. 109. 228 EIGHTS AND LIABILITIES, ETC. [CHAP, VI. which filthy water filters upon the land of his neighbor, and injures a cellar or well, he becomes liable in damages for the injury without other proof of negligence.^ If he repairs or improves the building, he must guard against accidents to the passers-by in the street, by erecting a suitable barricade, or stationing a person there to give notice of danger .^ It is also, held in New York that any one who makes an excavation under or along the highway remains responsible for any in- jury from the defective condition of the coverings thereof.^ In so far as this liability is continued, notwithstanding a de- mise of the premises, the doctrine does not seem to be else- where accepted.* With reference to persons resorting to his premises, or upon his invitation express or implied,- every ten- ant is bound to exercise reasonable care to prevent damage happening to them from any danger in the construction of the buildings, which he knows of or has reason to apprehend.^ The keeper of a public-house was accordingly charged with negligence in not sufficiently protecting the plaintiff, who visited the house as a guest, from a weakness in the floor through which he fell and was hurt.^ But where in going along a dark passage the plaintiff fell down an ordinary stair- way, he was not allowed to recover any damages, for he ought to have taken a light with him; and that the defendant's servant directed the plaintiff to go where he did made no difference.'^ 1 Ball V. Nye, 99 Mass. 582. ^ Sexton V. Zett, 44 N. Y. 430. Applied to the case of post-holes for a fence dug on the line of the street. Wi-ight & Saunders, 65 Barb. 214. " Congreve v. Smith, 18 N. Y. 79, and other cases, ante, § 175. * lb. 6 Phil. R. E. Co. V. Kerr, 25 Md. 521; Carlton ;;. Franc. Iron Co., 99 Mass. 216; Chapman v. Kothwell, El. B. & E. 168; Indermaur v. Dames, 1 Harr. & R. 243, affirmed on appeal, L. R. 2 C. P. 811, and' holding that if the premises are in any respect dangerous, he must give his visitors sufficient warning thereof to enable them by the use of due care to avoid it. " Axford V. Prior, 14 W. E. 611. ' Wilkinson v. Fairrie, 1 Hurlst. & C. 683. As to the liability of the keeper of a tavern to persons coming there without dealing with him, see Axford V. Prior, supra. SEC. IV.] LIABILITY FOK NEGLIGENCE. 229 § 193. Liability of Owners of Structures, etc. — For a similar reason one who causes a building to be erected for a public exhibition, and admits persons to a seat therein on the pay- ment of money, is bound to see that due care has been taken in its erection, and that it is reasonably fit for the purpose ; and it is immaterial whether the money is to be appropriated to his own use or not.^ It is the duty of a wharfinger also to give information as to inequalities in the surface of the bottom when that is material to the safety of the vessel about to moor at his wharf ; but he is not bound to maintain a depth of water in the berth at his wharf sufficient for all vessels at all tides. Nor is the master of the ship relieved from the responsibility of ascertaining before he places his vessel in a berth, whether the depth of water is sufficient for the draught of his vessel.^ And the owner of dangerous machinery who leaves it in an open place, though on his own land, where he has reason to believe that children will be attracted to play with it, and be injured, is bound to reasonable care to protect such children from the danger to which they are thus exposed.^ A master 1 Francis v. Cockrell, L. R. 5 Q. B. 501, s. c. affirmed id. 184. In an action against the proprietors of a public exhibition, for not properly maintaining a staircase, which fell and injured the plaintiff, who had paid for his admission, there having been alterations which caused the fall, it was left to the jury to say whether the proprietors had employed proper persons to make the alterations, and whether those persons had used proper care and skill. Brazier v. Polytechnic Inst. 1 F. & F. 517. Where a sign of " no admittance " is placed on the door, one who enters cannot recover for an injury caused by negligence in the management of the room, even though no further warning was given. Zoebisch v. Tar- bell, 10 Allen, 385. The court in New York has laid down the rule that the landlord of a structure erected for a public purpose is not liable to injuries resulting from the defective condition of the building, to third persons lawfully going upon the premises, unless the landlord has wilfully concealed the defects. Edwards v. N. Y. & H. R. R. Co., 98 N. Y. 245, (Ruger, C. J., Danforth & Finch, JJ., dissenting) ; and see Bard v. Same, 10 Daly, 520; § 175, ante. 2 Nelson v. Phoenix Chem. Works, 7 Ben. 37. 8 Keefe v. Milw. Co., 21 Minn. 207. The owner of a private way through a lumber-yard is not liable for injuries received from the falling of a pile of lumber upon children who were trespassers there, the owner having ordered all children to be driven off, and employed a proper per- son to carry out his orders. Vanderbeck v. Hendrey, 34 N. J. 467. 230 EIGHTS AND LIABILITIES, ETC. [CHAP. VI. may also be made responsible to his servant for injuries re- ceived from defects in the building in which the services were rendered, and which the master knew or ought to have known and guarded against.^ But notwithstanding a landlord may be liable for an unsafe condition of the premises, the tenant will not be thereby absolved from his responsibility to third persons, for a neglect to make such repairs as are incumbent upon him.2 § 194. To Intruders and Trespassers. — The responsibility for injuries resulting from negligence, however, does not extend to such persons as are on the premises unlawfully, or without permission, and the proprietor is therefore under no obligation to make it safe for their access. As where the owner of several lots, upon the rear of which were tenements, commenced to build upon their front, and opened a way through an adjoining lot for his tenants, of which he notified . them ; it was held that a visito;* who, in attempting to enter the tenements, passed into the unfinished buildings in the night-time, and fell through the floor and was injured, could not recover for such injuries.^ But a person who is injured by the negligence of another is not barred of his remedy by the fact that at the time of the injury he was trespassing upon the premises of the person injuring him, if his trespass does not involve negligence on his own part substantially contrib- uting to produce the injury.* Or if the negligence of the 1 Ryan v. Fowler, 24 N. Y. 410. But not for the explosion of a kitchen boiler, properly constructed, simply because it had no safety-valve. Jaffe V. Harteau, 56 N. Y. 398. 2 Whalen v. Gloucester, 6 Thomp. & C. 135; Radway w. Briggs, 37 N. Y. 256. Where a husband and wife live upon premises, the separate property of the latter, the former is not in legal presumption so in control thereof as to make him liable for injuries sustained by the careless leav- ing of a pit uncovered thereon, and in order to make him jointly or severally responsible, some evidence must be given of his participation in the wi-ong, or of an obligation on his part to obviate the cause of the injury. Fiske v. Bailey, 51 N. Y. 150. 8 Roulston V. Clark, 3 E. D. Smith, 366. * Daley v. Korwich Co., 26 Conn. 591; Norris v. Litchfield, 35 N. H. 271. SEC. rv.] LIABILITY POK NEGLIGENCE. 231 defendant is so gross and wiKul as to imply a disregard of consequences, or a design to inflict an injury, tlie plaintiff may recover, though he was a trespasser, or did not exercise ordinary care to avoid the injury.^ § 194 a. For illegal and dangerous Acts. — Where that which is done by a person on his own land is illegal and punishable as such; or though not illegal, if it be an act which may probably endanger human life, as the setting of dangerous traps or spring guns, he may be responsible even to a tres- passer, for injuries thus sustained by him.^ But although such traps or guns may be lawfully placed upon private grounds, for the purpose of deterring trespassers, or pre- venting strange animals from doing damage, yet full notice must be given of the fact ; and if no notice, or an insufficient notice, is given, the person so placing them is responsible for all injuries done by them to any -human being, although he may have been a trespasser.^ And where the plaintiff had notice that deadly engines were placed in a wood into which he notwithstanding entered, and was severely wounded, it was held that he could not maintain an action, having voluntarily brought the injury upon himself.* § 1 95. For Injuries done by Animals. — The liability of an owner or keeper of animals of any description, for injuries committed by them, is also founded upon his actual or pre- sumed negligence to take sufficient care to prevent their doing such injuries.^ Upon this principle, he is liable in damages for keeping a dog upon his premises which is accustomed to bite mankind ; and even if it is not his, he is still liable if he harbors or allows it to be at, and resort to, his premises.^ But he must be aware that the dog was a ferocious animal, ^ Lafayette K. R. Co. v. Adams, 26 Ind. 370; Clark v. Kirwan, supra. 2 Bird V. Holbrook, 4 Bing. 628; Jordin v. Crump, 8 M. & W. 782. ^ Bird V. Holbrook, supra ; Townsend v. Watken, 9 East, 277. * Ilott V. Wilks, 3 B. & A. 304. 6 Buckley v. Leonard, 4 Den. 500; Meredith v. Reed, 26 Ind. 384. • Sarch v. Blackburn, 4 C. & P. 292; Curtis v. Mills, 5 id. 489. 232 BIGHTS AND LIABILITIES, ETC. [CHAP. VI. and accustomed to bite ; ^ and he will be ezonerated from all responsibility, if, being a strange dog, he has endeavored, but without success, to drive it off from his premises.^ A man cannot, however, recover damages for an injury received from the bite of a dog placed in a yard for the protection of out- houses, unless he had such reasonable and justifiable cause for being in the place where the dog was, as might be pleaded in answer to an action of trespass ; as, if he was in the pur- suit of his ordinary business at the time. And if he was lawfully upon the premises, the circumstance of there being a notice posted up, warning persons to beware of the dog, will be no answer to a claim for damages, if it appears that he was not able to read it.^ So a warning, previously given, is no excuse, if the jury should think that the accident was not occasioned by the plaintiff's own carelessness or want of cau- tion.* The owner of sheep, however, which had been worried by a dog in a field, is not justified in shooting the dog, when in another field and at some distance off ; as it cannot then be said to have been done in the protection of his property.^ 1 Woolf V. Chalker, 31 Conn. 121; Kitteridge v. Elliott, 16 N. H. 77; Cogswell V. Baldwin, 15 Vt. 404; Stumps v. Kelley, 22 111. 140; McKone V. Wood, 5 C. & P. 1; Hogan v. Sharpe, 7 id. 755; Jenkins v. Turner, 1 Ld. Ray. 109; Kex v. Huggins, 2 id. 1583; Van Leuven v. Lyke, 1 N. Y. 515; Laverone v. Mangianti, 41 Cal. 188 ; Wheeler v. Brant, 23 Barb. 324. In Massachusetts and in Maine, the keeper of a dog is by statute made responsible for aU his wrongful acts. 2 Smith V. Great E. E. R. Co., L. R. 2 C. P. 4; Hewes v. McNamara, 106 Mass. 281. 8 Sarch v. Blackburn, supra; s. c. Mood. & M. 505; Blackman v. Sim- mons, 3 C. & P. 138; Rowland v. Vincent, 10 Met. 371. A mere techni- cal trespass upon the premises by the plaintiff at the time is no defence to an action for an injury received from a vicious dog. Loomis v. Terry, 17 Wend. 476; Sherfey v. Bartley, 4 Sneed, 5. * Curtis V. Mills, supra. In the cases of May v. Burdett, 9 Q. B. 101, and Jackson v. Smithson, 15 M. & W. 563, the judges held that the keeper of any mischievous animal dangerous to his neighbor is bound to keep it securely at his peril; and, if any injury is done by it, negligence in the owner is presumed to have been the cause of the injury; for that there is negligence in keeping it, after notice of its propensities. « Wells V. Head, 4 C. & P. 568; McAneany v. Jewett, 10 Allen, 151. A ferocions dog, that attacks persons, is a nuisance; and, i£ allowed to SEC. IV.] LIABILITY FOE NEGLIGENCE. 233 The plaintiff, wherever it is necessary to prove a scienter, as in the case of a dog, must allege that the defendant knew that the dog was accustomed to commit the particular tort com- plained of ; an allegation of a knowledge of general ferocity is not, it would seem, sufficient to charge the defendant.^ § 196. For Fires beginning on the Premises. — At common law, if a fire began in a dwelling-house, and it extended to the neighboring property, the tenant of the house where the fire originated was responsible for all damages done, whether the fire was caused by the mischance of himself, his servant, or his guest.2 But a statute of Queen Anne, amended by the statute of 14 Geo. III. c. 78, enacted that no action should be had against any person, in whose house, chamber, or other building, or on whose estate, any fire should accidentally begin ; and this statute has been generally re-enacted in the United States. The protection afforded by these statutes, however, extends only to a case of accidental fire, that is, one which cannot be traced to any particular or wilful cause, and stands opposed to the negligence of either servants or masters ; and therefore an action will lie against a person upon whose premises a fire commences, through the negligence or miscon- duct of himself or his servants, which is productive of injury to the adjacent property of his neighbor.^ And it is imma- run at large may be killed by any one. Putnam v. Payne, 13 Johns. 312; Hinckley v. Emerson, 4 Cow. 351. 1 Hogan V. Sharp, 7 C. & P. 755; Hartley v. Harriman, 1 B. & A. 620; Beck V. Dyson, 4 Camp. 198; Jackson u. Pesked, 1 M. & S. 238. ^ " jSi mon feu per misfortune arde les Kens d' autre home, il avera action sur le case vers may. — 2 Hen. IV. 18." Roll. Abr. Action on Case, B. p. 1 ; Tubervil v. Stamp, 1 Salk. 18. The Revised Statutes of New York (1 R. S. 696, § 1) also provide that any person negligently setting fire to his own woods, or negligently suffering a fire kindled upon his own wood or fallow land, to extend beyond his own land, shall forfeit treble damages to the party injured thereby. Lawyer v. Smith, 1 Den. 207. 8 Filliter v. Phippard, 11 Ad. & E. Q. B. 347; Webb v. Rome, W. & O. R. Co., 49 N. Y. 420. The fire in this case was kindled at a time of extreme drouth, and a strong wind was blowing from the land of the defendant towards the adjoining woodland of the plaintiff. A tenant is not liable, in the absence of an express agreement, for the accidental de- 234 EIGHTS AND LIABILITIES, ETC. [CHAP. VI. terial whether the proof shows gross negligence, or only a want of ordinary care, for in either case the plaintiff is enti- tled to recover whatever damage he has sustained.^ But the negligent burning of a house, and the spreading of the fire to a neighboring house which is not adjacent to that in which the fire originated, do not give the owner of that house a right of action for the damages he may sustain, since they are the remote and not the immediate results of the defendant's acts.^ A tenant also is answerable to his lessor, if the house or other building on the demised premises is destroyed by fire, through his carelessness or negligence ; and in such case he is bound to rebuild, at his own expense, within a reasonable time.^ And when an occupant of land sets fire to the fallow or wood thereon for the purpose of improving it, or bringing it into cultivation, and unwittingly injures his neighbor, he will be answei'able for the damage, unless it appears that he had used due care to prevent such injury. And where an action was brought by the plaintiff for an injury to his reversion, occa- sioned by the defendant's making a rick of hay on his land, so near to some cottages of the plaintiff that they were burned by tlie spontaneous ignition of the hay ; and it was proved that the hay had been put up in a damp or green condition, when, as is well known, it will, from natural causes, ferment struction by fire of the buildings occupied by him. Wainscott v. Silvers, 13 Ind. 497. 1 Barnard v. Poor, 21 Pick. 378; Todd v. Collins, 1 Halst. 127. 2 Ryan V. N. Y. Cent. R. R., 35 N. Y. 210; Penn. R. R. Co. v. Kerr, 62 Pa. St. 353. 3 Co. Lit. 53 b; Rook v. Warth, 1 Ves. Sr. 462. lu the case of Clark V. Foot, 8 Johns. 421, Clark sued Foot to recover damages sustained by Foot's setting fire to the plaintiff's woods. The evidence was that the defendant's servant by defendant's order, set fire to certain fallow ground belonging to the defendant, which fire ran into the plaintiff's woodland. The court said the question was whether there was negligence on the part of Foot or his agent ; for Foot was as much accountable for the negligence of his servant, whilst employed in his business, as if the fire had spread by his own act. It is lawful for a person to burn his fallow; but, if his neighbor is injured thereby, he will have a remedy by action on the case, if there be sufficient ground to impute the act to the negligence or mis- conduct of the defendant or his servants. See also Maull v. Wilson, 2 Harringt. 443. SEC. IV.] LIABILITY FOK KEGLIGBNCB. 235 and ignite, the court held, that the law requires every man so to use his own property as not to injure or destroy that of his neighbor, and rendered him liable for all consequences resulting from a want of due care and caution in the manner of enjoying his own rights ; and that in this case an ordinary degree of prudence would have prevented the accident, or suggested the propriety of placing his hay-ricks further off from his neighbor's premises.^ § 197. For Acts not in themselves Unlawful. — It is a sound legal maxim, that requires every person to exercise his own rights so as not to injure those of his neighbor ; wherefore, a person acting in the exercise of his undoubted right of prop- erty, and doing damage to his neighbor, which, under other circumstances, might be justifiable, will still be liable to an action, if the damage might have been prevented by the use of reasonable care and precaution. English law seems to have gone to the extent of making a man liable for damages, even when caused by a mere casualty which could not be avoided ; regarding not so much the intent of the actor as the loss and damage of the party suffering, holding that he who receives damage ought in any event to be recompensed. As if, in building his house, a piece of timber accidentally falls on the neighboring house, and injures it ; or if a man assaults him, and, in lifting up his staff to defend himself, it strikes 1 Sutton V. Clarke, 6 Taunt. 44; Cook v. Champl. Tr. Co., 1 Den. 91. In Hanlon v. Ingram, 3 Iowa, 81, Wright, C. J., says: " All of the cir- cumstances should be carefully weighed, and unless they disclose with reasonable certainty that in setting out the fire, and preventing its escape, the defendant has used those precautionary measures which, as a prudent and cautious man, he would take with reference to his own property, he will be liable." And see Jordan v. Wyatt, 4 Gratt. 151. Plaintiff's wood was on the defendant's land, and defendant having given plain- tiff a reasonable notice of his intention, and requiring him to remove it, set fire to his fallow, and the wood still remaining upon the land was burned; and the defendant was held not to be liable for any damages, in the absence of wilful wrong or gross negligence. Bennett v. Scutt, 18 Barb. 347. In case of damage from burning fallow, the mere fact that the fire was set in a dry time, in July, upon low swampy ground, previously burnt over and destitute of brush, does not show negligence. Stuart V. Hawley, 22 Barb. 619. 236 EIGHTS AND LIABILITIES, ETC. [CHAP. VI. another, although he did a lawful thing.^ But American au- thorities have not gone so far, and have invariably held that no liability results from the commission of an act which is purely accidental, or which ordinary human care and foresight could not have guarded against.^ They have never, however, excused carelessness, or a neglect to take such precautions against injury as a man of ordinary prudence usually takes in his own affairs. Thus a shop-keeper, who invites the public to his shop, is held liable for neglect on leaving a trap- door open, without sufficient protection, by which his cus- tomers suffer injury.^ A livery-stable keeper who lets horses and carriages for hire is answerable for injuries which happen by reason of defects in carriages which might have been discovered by a careful examination.* § 198. Owner bound to Reasonable Care. — Wherever, from the situation of the premises, the acts of a person though done entirely on his own property may be productive of injury to another, he is bound to exercise such a degree of care and caution as shall enable other persons, exercising reasonable care on their part also, to avoid the danger. But if he has used such caution, he will not be liable for an injury arising from the interference of a wrong-doer. Thus, in an action for negligently permitting the flap of the defendant's cellar to remain unfastened, whereby it fell upon and broke the 1 Vaughan v. Menlove, 3 Bing. (N. C.) 468. See also Kex v. Comm'rs, 8 B. & C. 355; Wyatt v. Harrison, 3 B. & Ad. 871; Aldridge v. Great West. R. R. 4 Scott, N. R. 156. = Dygert v. Bradley, 8 Wend. 469; Taylor v. Atlantic Ins. Co., 9 Bosw. 369; Brown v. Kendall, 6 Cush. 292. And per Earl, J., in Losee V. Buchanan, 51 N. Y. 491: "The rule, so far as I can discern, has no exception in this country that no one can be made liable for injuries to the person or property of another, without some fault or negligence on his part, however serious the injury may be which is accidentally inflicted." See also Calkins v. Berger, 44 Barb. 424 ; McGrew v. Stone, 53 Pa. St. 436; Lawler v. Baring Boom Co., 56 Me. 443. 3 Parnaby v. Lancaster Coal Co., 11 Ad. & E. 223-243; Freer v. Cam- eron, 4 Rich. Law, 218. In Karl v. Maillard, 3 Bosw. 591, it was held culpable negligence to have an open unguarded hoistway within six feet of the entrance to a building. * Hadley v. Cross, 34 Vt. 586. SEC. IV.] LIABILITY FOE NEGLIGENCE. 237 plaintiff's legs, it was held that the defendant was bound to exercise ordinary care in securing it, that what this was should be determined by the condition of the owner and other cir- cumstances ; but that he was not responsible for the act of a wrong-doer in displacing it.^ A like decision was made in a later case and the test of liability was the want of ordinary care by the defendant.^ § 199. Care to be proportioned to Danger. — Rule of Contribu- tory Negligence. — With respect to the degree of care which is necessary to be taken by persons who would avoid liability in cases of damage arising from casualties of the character we have been considering, it is in general that which persons of ordinary prudence are presumed to make use of under similar circumstances to avoid injury, and should always be proportioned to the injury to be avoided and to the consequen- ces involved in its neglect.^ But where there is equal negli- gence on both sides, without any intentional wrong on the part of either, or if the plaintiff, by his own negligence or otherwise, has contributed, substantially, to produce the in- jury complained of, no action lies.* A party, on the one 1 Daniels v. Potter, 4 C. & P. 262. Negligence is defined to be any violation of the obligation which enjoins care and caution in what we do. It is the omission of a duty. Tonawanda E. R. v. Hunger, 5 Den. 255; Carroll v. W. Y. & N. H. R. R., 1 Duer, 571, 583. And see Mayor v. Bailey, 2 Den. 433; Brand v. Schenect, & T. R. R., 8 Barb. 368; Chase V. N. Y. Cent. R. R. 24 id. 273. ^ Proctor V. Harris, 4 C. & P. 337; Smith v. Smith, 2 Pick. 621 ; Grant V. Ludlow, 8 Ohio St. 1. Ordinary care means that care and foresight which men of ordinary prudence are accustomed to make use of; Johnson V. Huds. Riv. R. R., 6 Duer, 683; while ordinary neglect is the omission of that care which every man of common prudence takes of his own con- cerns: Scott V. De Peyster, 1 Edw. 513. The term negligence embraces acts of omission as well as of commission, and it is the want of that care which a man of common prudence exercises in business matters. O'Brien V. R. R. Co., 3 Phila. 76; Bizzell v. Baker, 16 Ark. 308; Johnson v. Huds Riv. R. R. Co., 20 N. Y. 65. » Toledo R. R. Co. v. Goddard, 25 Ind. 185; Ernst u. Huds Riv. R. R. Co., 35 N. Y. 9; Fallon v. Boston, 3 Allen, 38; Unger v. Forty-Second St. R. R. Co., 51 N. Y. 497; Heathcock v. Pennington, 11 Ired. 640. * Brownell v. Flagler, 5 Hill, 282: Wilds v. Huds. Riv. R. R., 24 N. Y. 430; Sills v. Brown, 9 C. & P. 605; Wynn v. AUard, 5 W. & S. 524; 238 EIGHTS AND LIABILITIES, ETC. [CHAP. VI. hand, cannot recover damages for an injury which he has brought upon himself, neither will he, on the other, be per- mitted to^ shield himself from an injury which he has done, because the injured party was in the wrong, unless such wrong contributed materially to produce the injury ; and, even then, it would seem that the party setting up the defence is bound to use ordinary caution to be in the right.^ If, however, a person, in the lawful use of his property, exposes it to acci- dental injury from the lawful ' acts of others, he does not thereby lose his remedy for an injury caused by the culpable negligence of such other persons. The owner of land on the shore of a stream or lake, or adjoining the track of a railroad, may lawfully build thereon, though the situation be one of exposure and hazard ; and he is, nevertheless, entitled to pro- tection against the negligent acts of persons passing the same with vessels or carriages propelled by steam-engines, by which such buildings may be set on fire. And, in an action for the damages he may sustain, it is competent for the plaintiff to show that experienced persons, in such employments, were accustomed to use certain precautions which the defendants neglected ; the tendency of such evidence not being to estab- Smith V. Dobson, 3 M. & G. 59; Brown v. Maxwell, 6 Hill, 592; Rathbun v. Payne, 19 Wend. 399. One who complains of another's negligence should himself be without fault. Warner v. N. Y. Cent. R. R. Co., 44 N. Y. 465 ; Chicago R. R. Co. v. Kauffman, 28 111. 513; ]Sroyes v. Morris, 1 Vt. 353; Lane w.' Crombie, 12 Pick. 177; State v. Bait. R. R. Co., 24 Md. 84; Drake v. Mount, 33 N. J. 441. Where a plaintifE, at the time of the alleged injury, was trespassing on the defendant, or otherwise wrong in the particular act complained of, such delinquency alone, with very limi- ted exceptions, is a decisive answer to any claim for damages founded on the defendant's negligence. Brownell v. Flagler, supra; see Cook v. Champl. Transp. Co., 1 Den. 99; Tonawanda R. R. v. Munger, supra; Kelsey v. Barney, 12 N.Y. 425. 1 N. H. St. & Tr. Co. v. Vanderbilt, 16 Conn. 420. For cases of con- curring negligence, see Owen v. Huds. Riv. R. R., 2 Bosw. 374; s. c. 35 N. Y. 56; Indianapolis R.R. Co. v. Wright, 22 Ind. 376; Bait. R. R. Co. V. State, 29 Md. 252. If the plaintiff has used ordinary care, he cannot be said to have contributed to the negligence. Center v. Finney, 17 Barb. 94; Eakin v. Brown, 1 E. D. Smith, 36. That this doctrine is to be cautiously applied, where the fault of the defendant has been clearly established, see Clark v. Kirwan, 4 E. D. Smith, 21. SEC. v.] OF KTJISANCB. 239 lish a local law or usage ; ^ while a defendant may show that he took all such precautions to guard against injury as would have been taken by a man of ordinary prudence.^ The ques- tion of negligence ought in general to be submitted to a jury, and they are to find whether due care has been used or not;* but where the facts are undisputed, the question of contributory negligence becomes one of law for the court.* SECTION V. OF NUISANCES. § 200. Actions for, by Landlord and Tenant. — The tenant's possessory interest will enable him to maintain actions grow- ing out of any act by which his possession is immediately affected, or the consequences of which are in any way inju- rious to his possession.^ And such actions may be either to recover damages for an injury already sustained, or for an injunction to prevent further injury, or botli. The injury may be either to the dwelling-house by rendering it uncom- fortable or untenantable ; or to the land, as by overflowing it with water ; or to some incorporeal hereditament annexed to the estate, as by the obstruction of a right of way.^ And, if the injury affects the reversion, both landlord and tenant may have distinct actions for the same wrongful act ; as, for an injury to trees the landlord may have an action for injury to the body of the tree, and the tenant in respect to its shade 1 Cook V. Champ. Tr. Co., 1 Den. 91. 2 Furth V. Foster, 7 Rob. (N. Y.) 484. 3 Moore v. Westervelt, 21 N. Y. 103; Barton v. N. Y. Cent. R. R. Co., 56 id. 660; Hanover R. R. Co. v. Cayle, 55 Pa. St. 96; Garland w.Towner, 55 N. H. 55. * Morrison v. Erie R. R. Co., 56 N. Y. 302; Aycrigg v. Erie R. R. Co., 30 N. J. 460. ^ Evans v. Evans, 2 Camp. 491 ; ante, § 178. ' Trower v. Chadwick, 3 Bing. (N. C.) 334; Panton v. Holland, 17 Johns. 92 ; Dodd v. Holme, 1 Ad. & E. 493; Thurston v. Hancock, 12 Mass. 220; Acton v. Blundell, 12 M. & W. 324; Ulrich v. McCabe, 1 Hilt. 251. 240 EIGHTS AND LIABILITIES, ETC. [CHAP. VI. or fruit.^ If the trees shall have been cut down, the tenant may have an action of trespass against the wrong-doer for breaking in upon his premises, and the landlord an additional action of trover for the trees carried away.^ An action of trespass also lies in favor of the tenant, if a man builds a house so close to his that the roof overhangs, and throws the water upon it ; or if a person erects any thing offensive so near his dwelling as to render it useless or unfit for habita- tion ; as, a pigsty, tobacco-mill, tannery, or privy .^ § 201. What may Constitute. -^ Any offensive erection which, from its nature, may be an annoyance, and from its situation actually becomes so, is a nuisance. A slaughter- house in a city is held to be, primd facie, a nuisance to the neighborhood ; and, to make it such, it is not necessary that the noxious business should endanger the health of the neigh- borhood. It is sufficient if it be offensive to the senses, and renders the enjoyment of life uncomfortable.* And a coal- 1 Bedingfield v. Onslow, 3 Lev. 209; Starr v. Jackson, 11 Mass. 519; Shadwell v. Hutchinson, 4 C. & P. 333. But the landlord's remedy is case and not trespass. Wentworth v. Portsm. & D. K. R., 55 N. H. 540. 2 Berry v. Heard, Cro. Car. 242; 2 Inst. 308. ' Aldred's Case, 9 Co. 59, a; Penruddock's Case, 5 id. 100; Wynn v. Alard, 5 W. & S. 524; Howel v. McCoy, 3 Rawle, 256; Bellows v. Sackett, 15 Barb. 96; Whalen v. Keith, 35 Mo. 87; Aiken v. Benedict, 39 Barb. 400 ; and see post, § 775. * Catlin V. Valentine, 9 Paige, 575; State v. Purse, 4 McCord, 472; Meigs V. Lister, 8 C. E. Green, 199. Nuisance, in its largest sense, sig- nifies anything that worketh hurt, inconvenience, or damage. 8 Bl. Com. 215. It is either public, annoying all the members of a community, or it is private, injuriously affecting the lands, tenements, or heredita- ments of an individual. Norcross v. Thorns, 51 Me. 503; Coker v. Birge, 9 Ga. 425. To make a noxious trade a nuisance, it is not necessary that it should endanger the health of the neighborhood. It is sufficient if it produces that degi-ee of annoyance which is offensive to the senses, and impairs the enjoyment of life and property. Catlin v. Valentine, supra ; Brady v. Weeks, 3 Barb. 157; Rex v. Neil, 2 C. & P. 485. A fat-boiling establishment is a nuisance if it infects the air with noisome smells and gases, prejudicial to health. Cropsey e. Murphy, 1 Hilt. 126. So of a livery stable, if it renders a neighboring dwelling-house unfit for the pur- poses for which it was designed. Aldrich b. Howard, 8 R. I. 246 ; or a lime-kiln, or pottery, in close proximity to the plaintiff's residence. SEC. v.] OP NUISANCE. 241 yard or a stable may be so negligently conducted as to become a nuisance to the neighboring inhabitants, although it is not necessarily a nuisance, and only becomes such by being so carelessly used as to become obnoxious to the neighborhood.^ Hutchin o. Smith, 63 Barb. 251; Ross v. Butler, 19 N". J. Eq. 294, a house of prostitution; Jacobowsky v. People, 13 N. Y. 524, a soap-boil- ing establishment in a city, Howard v. Lee, 3 Sandf . 281 ; the bleating of calves kept overnight at a slaughter-house, to be killed in the morning. Bishop V. Banks, 33 Conn. 118; a dilapidated sewer, McCarty ». City of Syracuse, 40 N. Y. 194; a bowling-alley kept for gain and common use, where noises at night disturb the neighborhood. State v. Haines, 30 Me. 65; disorderly inns and gambling-houses in places densely populated. Hackney v. State, 8 Ind. 494 ; State v. Doom, R. M. Charlt. Ga. 1. But maintaining a house for prostitution, or illegal sale of liquors, does not render the house itself, or its inmates or contents, nuisances. Miller v. Forman, 37 N. J. 45; Brown v. Perkins, 12 Gray, 101. A carriage manufactory or a blacksmith's shop may be erected in so improper a place, that its use will result in an injury to a neighbor, and so is, in itself, a wrongful act for which the wrong-doer is responsible to one who is injured thereby. Whitney v. Bartholomew, 21 Conn. 213. So a tomb erected on a man's own land may become a nuisance from its locality and from extrinsic facts. Barnes v. Hathoi-n, 54 Me. 124. There may be circumstances where the jar and even noise of a steam-engine may be- come a nuisance, and its use on that account, and in that particular manner, be restrained by the court. Davidson <;. Isham, 1 Stark. 186 ; McKeon v. Lee, 51 N. Y. 300. Whatever is permitted by a statute, which the legislature is competent to enact, is not in judgment of law a nui- sance. Leigh V. Westervelt, 2 Duer, 618; Harris v. Thompson, 9 Barb. 350; Plant v. L. I. R. R., 10 id. 26; Williams v. N. Y. C. R. R., 18 Barb. 222. Any excess or irregularity in the exercise of a power con- ferred by statute, however, may be a nuisance pro tanto. Renwick v. Morris, 7 Hill, 575 ; Adams v. Beach, 6 id. 271. The legislature declared a stream to be a public highway, and afterwards enacted a law authorizini" the riparian owners to erect a dam across it; held, that the latter act merely restored the common-law right of the owners to obstruct the navi- gation, but did not legalize the dam if otherwise a nuisance. Clark v. Mayor, 13 Barb. 32. 1 Barrow u. Richard, 8 Paige, 351 ; Russell v. Popham, N. Y. Leg. Obs. 272. Gas-works are not within the ordinary uses of real estate, and, whenever they produce a special injury, are to be regarded as a nuisance, and an action will lie in favor of the injured person. Carhart v. Aub. Gas Co., 22 Barb. 297; Ottawa Gas Co. v. Thompson, 39 111. 598; Howard V. Lee, 3 Sandf. 256. And it is sufficient to show that the property has been rendered less valuable for the purposes to which the owner has seen fit to devote it. First Bapt. Church v. Schen. & T. R. R., 5 Barb. 79; VOL. I. — 16 242 EIGHTS AND LIABILITIES, ETC. [CHAP. VI. So the act of keeping a large quantity of gunpowder in a wooden building, insufficiently secured, and situated near other buildings, thereby endangering the lives of persons residing in the vicinity, amounts to a public nuisance.^ And if an accident occurs therefrom, by which an individual i^ wounded, he may recover damages against the party guilty of the nuisance, although the fire may not have been occasioned by any negligence of his.^ Even a private dwelling-house may be kept in so negligent and filthy a manner as to become liable to this charge,^ or a tenement-house cut up into small apartments, inhabited by a crowd of poor people in a filthy condition calculated to breed disease.* In all such cases a householder may recover damages caused by the nuisance, though not himself driven from his dwelling. Thus the keeper of a boarding-house, whose boarders were driven away by the offensive smells proceeding from a livery stable set up in an adjacent house, was allowed to maintain an action against the keeper of the stable for damages sustained from the loss of his boarders.^ Trustees v. Utica & S. R. K. , 6 id. 313. Stationing before the door of a mock-auction room a man with a placard inscribed "Beware of mookr auctions," was held to be a private nuisance, in Gilbert v. Mickle, 4 Sandf. Ch. 357. 1 People V. Sands, 1 Johns. 78. 2 Myers v. Malcomb, 6 Hill, 292; Eex v. Taylor, 2 Stra. 1167; Dun- can !!. Thwaites, 8 B. & C. 556; Pierce v. Dart, 7 Cow, 609; 4 Wend. 25; Mayor v. Furze, 3 HiU, 612. ' State V. Purser, supra. The tenant of premises is alone liable for a nuisance resulting from his own act or negligence in the use of the prem- ises ; but for a nuisance resulting from the structure of the building, the owner is liable. But as to an open area in front of the building, both owner and occupant are bound to render it safe to the public. Durant v. Palmer, 5 Dutch. 544. A person having an artificial drain under his house is bound so to keep it as not to do injury to his neighbor, although he has been guilty of no negligence, and the existence of this drain was in no way known to him. Humphries v. Cousins, 2 C. P. D. 239; and see Jackman v. Arlington Mills, 137 Mass. 277. * Meeker v. Van Rensselaer, 15 Wend. 397. 5 Aldrich v. Howard, supra; Fish v. Dodge, 4 Den. 311. The land- lord may be joined in such an action if he leased the house to be converted into a stable under such circumstances as would have led to a reasonable belief that it would become a nuisance. Id. SEO. v.] OF NUISANCE. 243 § 201 a. Obstruction of Waya. — It is a nuisance also to obstruct a highway, or render its use hazardous, by an exca- vation or the like ; or to place upon the foot-path of a public street a stall or stand for the sale of fruit, although rent is paid to the adjoining proprietor for the privilege.^ The law will only tolerate such a partial and temporary obstruction in the street as may be necessary for purposes of business, as in receiving and delivering goods from a warehouse, or the like, provided the public convenience does not suffer. In a case where the defendant was indicted for a nuisance in placing goods on the foot-way and carriage-way in a public street, and suffering them to remain for the purpose of being sold at auction, thereby rendering the passage less convenient, but not entirely obstructing it. Chief Justice Tilghman, delivering the opinion of the court, said : " The necessity which justifies such a nuisance must be a reasonable one. No one has a right to throw wood or stones into the street at his pleasure. But, inasmuch as fuel is necessary, he may throw wood into the street for the purpose of having it carried to his house, and it may lie there a reasonable time. So, because building is necessary, stones, brick, lime, sand, and other materials, may be placed in the street, provided it can be done in the most convenient manner. On the same principle, a merchant may have his goods placed in the street, for the purpose of removing them to his store in a reasonable time. But he has no right to keep them in the street for the purpose of selling them there, because there is no necessity for it." ^ 1 Morton v. Moore, 15 Gray, 573; Gerrish v. Brown, 51 Me. 256; Irvine v. Wood, 51 N. Y. 224; Dimmett v. Eskridge, 36 Munf. 308. " Commonwealth v. Passmore, 1 S. & R. 217. Any unauthorized con- tinuous obstruction to the free passage of the public along a street amounts to a nuisance. Davis v. Mayor, 14 N. Y. 506. As for a wagoner to keep one or more wagons constantly before his store-house, in the street, al- though there was sufficient room for two carriages to pass abreast on the opposite side of the street: King w. Russell, 6 East, 427. Or for a coach- man to stand with his coach in any particular part of the street for an unreasonable length of time waiting for passengers: Rex v. Cross, 3 Camp. 224. Or for a man to erect a wharf on a river, although its erec- tion might be beneficial, and sufficient room be left for a free passage in the river: Resp. v. Caldwell, 1 Call. 150; Hart v. Mayor, 9 Wend. 571. 244 EIGHTS AND LIABILITIES, ETC. [CHAP, V. § 201 h. Business carried on in Street. — Nor can a man habitually carry on any part of his business in the street, to the annoyance of the public. If the nature of his business is such as to require more room than is contained upon his own premises, he must either enlarge them, or remove his business to some more convenient spot. Private interests must be made subservient to the general interests of the community, who are not to be prevented from passing freely along tlic highway. And where the defendant, being a lumber mer- chant, occupied a small yard close to the street, and, from the smallncss of his premises was obliged to deposit pieces of lumber in the street, and to have them sawed up there, before they could be carried into his yard ; and it was sug- gested to be necessary for his trade, and that it occasioned no more inconvenience than draymen letting down hogsheads . of beer into the cellar of a publican ; Lord Ellenborough said, " If an unreasonable time is occupied in delivering beer from a brewer's dray into the cellar of a publican, it becomes a nuisance. A cart or wagon may be unloaded at a gateway, but this must be done with promptness. So as to the repair- ing of a house ; the public must submit to the inconvenience occasioned necessarily in repairing the house ; but if this inconvenience be prolonged for an unreasonable time, the public have a right to complain, and the party may be in- dicted for a nuisance. The defendant in this case is not to eke out the inconvenience of his own premises by taking in the public highway into his lumber-yard; and if the street be narrow, he must remove to a more commodious situation for carrying on his business." ^ ^ King V. Russell, supra; Rex v. Carlile, 6 C. & P. 636; Rex v. Jones, 3 Camp. 230. In repairing a house, care must be taken that the encroach- ment on the highway be not unreasonable; for if the owner employs his own servants, and they erect a shed so far out into the street as to en- croach unreasonably on the highway, the owner will be liable for the nuisance. Though if done by the servants of a contractor the owner is not liable. Hilliard v. Richardson, 3 Gray, 353. But building a house higher than it was before, whereby the street becomes darker, is not a public nuisance on account of the darkening only. Rex v. Webb, 1 Ld. Kay. 737. As to what encroachments upon a highway amount to a nui- sance, see Peckham v. Henderson, 27 Barb. 207. SEC. v.] OF NUISANCE. 245 § 202. Causing Assembly in Street. — A tenant will also be responsible for an obstruction, if he furnishes occasion, or does an act, which is likely to cause others to assemble around his premises, and produce such an obstruction in the street. The defendants were accordingly held guilty of a nuisance, in a case which arose in the city of Brooklyn, for causing the street in front of ^their distillery, in that city, to be obstructed by carts and teams, remaining therein an un- reasonable time, waiting for an opportunity of loading with swill and slops from the distillery ; although the defendants themselves used all reasonable diligence and despatch in the delivery, and were in the pursuit of a lawful business. The fact that the teams and carriages were not owned by the defendants, nor under their control, does not excuse them, if they, in effect, by the manner of conducting their business, invite such assemblages at the place where the article is delivered. And forasmuch as no length of time will enable a party to prescribe for a public nuisance, it was quite im- material how long the practice had prevailed, or when the distillery was built.^ § 203. May arise from Act in itself La-wful. — It is well settled that every individual is entitled to the undisturbed pos- session and enjoyment of his own property ; but this right is subject to the qualification of an equal right iu others to enjoy the possession of their property also. To this possession the law prohibits all direct injury, without regard to its extent or the motives of the aggressor. A man may therefore prosecute such business as he chooses upon his premises, but he cannot erect a nuisance to the annoyance of his neighbors, even for a lawful purpose. He may make an excavation on his own land, but not so near that of another as to cause the land to slide into his canal : nor may he cast dirt or stones upon his neighbor's land, either by human agency or the force of gun- powder. If he cannot construct his work without adopting means that will injure his neighbor, he must abandon that mode of using his property, or will be held responsible for all 1 People V. Cunningham, 1 Den. 524. 246 EIGHTS AND LIABILITIES, ETC. [CHAP. VI, damages resulting therefrom,^ although the work may be done in the most careful and skilful manner, or if a man negli- gently leaves noxious substances on his land which are washed by the rain along the surface of the ground into his neighbor's well, corrupting the water, he is liable for the injury, and it makes no difference whether such substances are carried upon the surface of the ground, or have soaked into the soil, and are carried along under the surface, by means of water diffusing itself according to natural laws.^ § 204. Injury must be Actual and Substantial. — It must not, however, be inferred that an action can be maintained for a thing which merely puts another to inconvenience. Some actual damage must be sustained by the party complaining, to give him a standing in court ; thus the mere act of divert- ing a watercourse, erecting a privy, or the like, is not suffi- cient to sustain an action, if it does no real injury to the plaintiff's inheritance or possession.^ And the damage must be of such a character as is apparent to any ordinary person, and not merely such as can only be perceived by means of scientific or microscopic investigation.* So the building of a wall which intercepts a prospect, without obstructing the light, or the opening of a window whereby the privacy of a neighbor is disturbed, are not per se actionable ; the only remedy in this latter case is to build on the adjoining land, opposite the offensive window.^ And where a building having 1 Hay V. Coboes Co., 2 N. Y. 159; Tremain v. Same, id. 163; Aldred's Case, 9 Co. 58; Roll. Abr. 565. 2 Brown v. Illius, 27 Conn. 84. * Lansing v. Smith, 8 Cow. 146; Myers v. Malcomb, supra; Duncan V. Thwaites, supra; Mayor v. Henley, 3 B. & Ad. 77; Mills v. Hall, 9 Wend, 315. Where the nuisance consisted in maintaining piles of wood on the street, constituting the bulkhead in front of the plaintiff's store- house, injury to the rental of the store-house is an injury which it suffers in common with all other property in the neighborhood, and will not sus- tain an action. Dougherty v. Bunting, 1 Sandf. 1. * Salvin V. North Brancepeth Coal Co., L. R. 9 Ch. 705. 5 Per Eyre, J., Chandler v. Thompson, 3 Camp. 82; Cross v. Lewis, 4 D. & K. 234; Knowles v. Richardson, 1 Mod. 55; Aldred's Case, supra. That a man has a right to build a fence on his ground for the purpose of SEC. v.] ■ OP NTJISANCB. 24T windows overlooking vacant premises owned by the lessor was demised with the appurtenances by a lease which con- tained only a covenant for quiet enjoyment, the lessee was held to have acquired no right against the lessor, or those claiming under him, to have the windows remain unobstructed for the passage of light and air, or for any other purpose.^ The injury must not only be of a substantial nature, but must arise from some other cause than the mere caprice or peculiar physical constitution of the party aggrieved. And to render a business liable to be abated as a nuisance, it must be offen- sive and unhealthful to persons of an ordinary nature and condition, and not merely to those of a delicate and sensitive organization. Thus the use of a warehouse for storing guano, in the ordinary manner, cannot be abated by showing that individual members of a family were nauseated by odors from it.2 If the boughs of my tree grow over your land, you may cut them off ; but you would not be justified in cutting them before they grow over your land, for fear they should grow over.2 And as was said by the old jurists, when a chandler erects a melting-house, it is a common nuisance ; but if a man is so tender-nosed that he cannot endure sea-coal, he ought to leave his house.* Or if a man sets up a school so near my study, who am of the legal profession, that the noise interrupts toy studies, no action lies.^ shutting up the window of a neighbor, see Pickard v. Collins, 23 Barb. 444; Mahan v. Brown, 13 Wend. 261; Parker v. Foote, 19 id. 309. 1 Doyle V. Lord, 4 Jones & S. 421. 2 Robinson v. Baugh, 31 Mich. 290. 8 Per Coke, J., in Norris v. Baker, 1 Rolle, 394. * Per Doddridge, J., in Jones v. PoweU, Palm. 536; Hall v. Swift, 6 Scott, 167; Bower v. Hill, 1 Bing. (N. C.) 549. ^ Com. Dig. Action on Case for a Nuisance. Noise caused by ma- chinery having been acquiesced in for more than five years, the court refused to interfere on the ground of increased noise, it being proved that no new machinery, or change in the manner of working, had been intro- duced. Gaunt V. Fynney, L. R. 8 Ch. 8. A person sick of an infectious or contagious disease, in his own bouse, or in suitable apartments at a public hotel or boarding-house, is not a nuisance. Boom v. Utica, 2 Barb. 104. Neither is a billiard-table. People v. Sergeant, 8 Cow. 139. 248 EIGHTS AND LIABILITIES, ETC. [CHAP. VI. § 205. Seasonable exercise of Lawful Right, though Harmful, does not Constitute. — Nor will an action lie for the reasonable use of a person's undoubted right, although it may be to the annoyance of another ; as, if a butcher or brewer exercises his trade in a convenient place.'^ Nor was it considered actionable for a defendant, who was a sportsman, to keep six or seven pointers so near the plaintiff's dwelling-house that his family were prevented by their noise from sleeping during the night, and were very much disturbed in the day.^ So the erection of a mill above another mill, whereby the owner of the lower mill is obliged to extend his dam, and is subjected to inconvenience in floating timber to his mill, but which does not affect his supply of water, is not actionable.^ And although if, in such a case, the injury being trivial, the law will not afford redress, equity will interpose to prevent the lower mills being rendered useless or unproductive in any considerable degree.* § 206. Diminution of Enjoyment of Easement Constitutes. — There must, as we have said, be some sensible abridgment of the enjoyment of the tenement to which an easement is attached, in order to amount to a disturbance, although it is not necessary there should be a total obstruction of the easement.^ Thus, to maintain an action for obstructing light, it is sufficient to show that the easement cannot be enjoyed 1 Elliotson V. Feetham, 2 Bing. (N. C.) 134; Bliss v. Hall, 4 id. 183; Flight V. Thomas, 10 Ad. & E. 590. A tannery is not, per se, a nuisance. State V. St. Com'rs of Trenton, 36 N. J. 283. 2 Street v. Tugwell, B. R. M. T. 41 Geo. III. But a dog in the habit of coming on a man's premises, barking and howling to the annoyance of his family, is a nuisance, and may be killed after reasonable notice to the owner. Brill v. Flagler, 23 Wend. 354. 8 Palmer v. Mulligan, 3 Caines, 307; Sactrider v. Beers, 10 Johns. 241. Though a person has a right to erect a mill on his own ground where he pleases, yet he must so exercise that right as not to interfere with the existing rights of others ; and therefore if A. erects a new mill in such a place, or so near the mill of B., that an artificial dam, before erected by B., causes the water to flow back on A.'s mill and obstruct its movement, A. has no right to complain of B.'s dam as a nuisance. Van Bergen ».Van Bergen, 3 Johns. Ch. 282. * Merritt v. Brinkerhoff, 17 Johns. 306 ; Stiles v. Hooker, 7 Cow. 266. ^ Moore v. Brown, Dyer, 319, b, pi. 17- SEC. v.] OF NUISANCE. 249 in so full and ample a manner as before, or that the premises are, to a sensible degree, less fit for the purposes of business or occupation.^ In a case of this kind, the court said : " The question is whether the plaintiff has the same enjoyment now which he used to have before, of light and air in the occupa- tion of his house ; and whether the alteration, by carrying forward the wall to the height of ten feet, has or has not occasioned the injury which he complains of. It is not every possible, every speculative exclusion of light which is the ground of an action ; but that which the law recognizes is such a diminution of light as really makes the premises to ia sensible degree less fit for the purposes of business. It ap- pears the defendants' premises had been injured by fire, and they re-erected them in a different manner from what they were before. They have a right to re-erect in any way they please, with this single limitation, that the alteration which they shall make, must not diminish the enjoyment by the plaintiff of light and air." ^ § 207. Prospective Injury, how Prevented. — But although some injury must have been sustained before redress can be had by a suit at law, yet if the necessary consequence of what has already been done will be an injury, it is not essential for a party to wait until actual damage shall have accrued, before proceeding to the appropriate remedy. For, as was said by an ancient authority, if a person intending to build a house, which will obstruct my ancient lights, erects fences of timber for the purpose of building, I have no right to pull them down ; but if the eaves of the house, when built, will evidently pro- ject over my laud, I need not wait till water actually falls from them, but may pull them down at once, or may apply to a court of equity to prohibit the impending injury. But mere threats, unaccompanied by an act, do not amount to a dis- turbance.^ Who are liable, and to whom, for a nuisance, we have already noticed in another connection.* It does not 1 Cotterell v. Griffiths, 4 Esp. 69. 2 Parker v. Smith, 5 C. & P. 438 ; Back v. Stacy, 2 id. 465. ' Baten's Case, 9 Co. 54; 2 Roll. Abr. 145, Nuisance, V. * Ante, § 175, and note. 250 EIGHTS AND LIABILITIES, ETC. [CHAP. VI. moreover appear to be necessary, in order to maintain an action for the continuance of a nuisance, that the defendant should have been requested to remove it.^ The damage oc- casioned by a nuisance need not be direct, in order to sustain an action ; for the erection of a dam in a navigable stream, which obstructed the plaintiff's raft from passing, has been held sufficient for this purpose.^ § 208. Prescriptive Right to do Injurious Acts. — Does not apply to Public Nuisance. — Many acts done upon a man's own property, which are in their nature injurious to the adjoining land, and consequently actionable as private nuisances, may, however, be legalized by prescription. Thus, the right not to receive impure air is an incident of property, and for any interference with this right an action may be maintained ; but under an easement acquired by his neighbor, with twenty years' possession, a man may be compelled to receive the air from him in a corrupted state, as by the admixture of smoke or noisome smells, or to submit to noises caused by the carry- ing on of certain trades. So, with regard to flowing water, though the right to receive the stream in its accustomed course is an easement, yet the right not to have impure water discharged upon a man's land is one of the ordinary rights of property, the infringement of which can only be justified by an easement previously acquired by the party so discharging it. And an ancient user is held as between individuals to be a justification for the exercise of a noisy ^ or offensive trade,* 1 Wigford V. Gill, Cro. El. 269; per Denio, J., in Brown v. Cayuga R. R., 12 N. Y. 492. But see MoDonough v. Oilman, 3 Allen, 264. ^ Hughes V. Heiser, 1 Binn. 463. Where a man purchased a lot front- ing on a river, for a dwelling-house lot, and covenanted not to use it for any offensive husiness, nor for a stone quarry, nor to permit any nuisance to be erected thereon, it was held that leasing the land with the privilege of building a vfharf and a railway across the land, for the purpose of drawing stone from a neighboring quarry to the wharf for transportation thence, which wharf also, from its propinquity to a large city, would in- vite nuisances, was a breach of the covenant, and should be restrained by injunction. Seymour v. McDonald, 4 Sandf. Ch. 502. 3 Elliotson V. Feetham, 2 Bing. (N. C.) 134. ^ Bliss V. Hall, 5 Scott, 500. " The plaintiff came to his house with all the rights appurtenant to it, one of which at the common law is a right SEC. v.] OP NUISANCE. 251 as well as for discharging water in an impure state upon the adjoining land.^ But no length of time will legalize a public nuisance ; ^ nor will it affect the question in any way, that the premises injured by a private nuisance were erected after the nuisance was created, for every continuance of it is a fresh nuisance.3 Even public authorities cannot legalize a nuisance by which a citizen is damaged ; and therefore the erection of a permanent awning upon a sidewalk was held to be a nuisance which the court would enjoin at suit of an individual who sustains special injury therefrom, notwithstanding it had been licensed by the commissioner of public works.* § 209. Equitable FoTver to Restrain, 'when Ezercised. — A court of equity will ordinarily interpose by injunction to re- strain an existing or threatened nuisance to property, if the injury be shown to be of such a character as will materially diminish its value or seriously interfere with its comfortable enjoyment ; especially if it appears to be a case where substan- tial damages could not be recovered in a suit at law.^ In the to wholesome, untainted air; unless the business which creates the nui- sance has been carried on there for so great a length of time that the law will presume a grant from his neighbors in favor of the party who uses it, and twenty years' user would alone legalize the nuisance." Per Tindal, C. J. In this case, the defendant carried on the business of a tallow- chandler on the adjoining premises three years before the plaintiff entered upon his premises, but it was held insufficient to legalize the nuisance. 1 Wright V. Williams, 1 M. & W. 77. 2 Stammers v. Dixon, 7 East, 200. See the application of the common- law principle, nullum tempus occurrit regi, to the case of a public nuisance. Dygert v. Schenck, 23 Wend. 446. It is said, however, in Peckham v. Henderson, 27 Barb. 207, that this rule does not apply to the case of a simple encroachment upon a highway, which does not amount to an ob- struction, or substantial annoyance to the public. But Turner v. Ringw. H. Bd. L. R. 9 Eq. 418, V. C. James, is contra. 3 Brady v. Weeks, 3 Barb. 157. All trades which render the enjoy- ment of life and property uncomfortable, must recede before the advance of population. Howard v. Lee, 3 Sandf . 281 ; per Oakley, C. J. * Trenor v. Jackson, 46 How. Pr. R. 389. A work specially author- ized by law cannot be a nuisance. Hinchman v. Patterson R. R., 17 N. J. Eq. 78. 6 Catlin V. Valentine, 9 Paige, 575; Stetson v. Faxon, 19 Pick. 147; Penniman v. N. Y. Balance Co., 13 How. Pr. R. 40; Mayor v. Curtis, 252 BIGHTS AND LIABILITIES, ETC. [CHAP. VI. case of a private nuisance, however, the fact that the com- plainant had slept on his rights (in the case referred to for seven years) raised a strong, if not conclusive, presumption that the injury complained of was not of so pressing and urgent a nature as to entitle him to come into a court of equity and obtain the aid of an injunction to restrain such nuisance.^ But a tenant who is aggrieved by a private nui- sance, besides resorting to an action at law for damages, or applying to a court of equity for an injunction to prevent its erection,^ may also enter and abate the nuisance, without the Clarke, Ch. 336 ; Barrow v. Richards, 8 Paige, 351 ; Hamilton v. Whit- ridge, 15 Md. 128; Adams v. Michael, 38 id. 123; Curtis v. Winslow, 38 Vt. 690. In Crump v. Lambert, 15 W. R. 417, Ld. Romilly, M. R., says, " The law on this subject is the same, whether it be enforced by an action at law, or by a bill in equity. There is, I apprehend, no distinction be- tween any of the cases, whether it be smoke, smell, noise, vapors, or water, or any gas, or fluid. The owner of one tenement cannot cause or permit to pass over or flow into his neighbor's tenement, any one or more of these things in such a way as materially to interfere with the ordinary comfort of the occupant of the neighboring tenement, or so as to injure his property. The real question in all the cases is one of fact, whether the annoyance is such as materially to interfere with the ordipary comfort of human existence." 1 Heiskell v. Gross, 3 Brewst. 430. ^ Lansing v. Smith, 4 Wend. 9. Common-law remedies for nuisance have become obsolete, and were never encouraged by our courts. Kentz V. McNeal, 1 Den. 436. And see Brown v. Woodworth, 5 Barb. 550; Wagoner v. Jermaine, 8 Den. 306. The court will not interfere by in- junction to prevent or remove a nuisance, unless it has been erected in violation of a right which a man has long previously enjoyed : Robeson V. Pittinger, 2 N. J. Eq. 57, Rhee v. Forsyth, 37 Pa. St. 503; Crenshaw V. State River Co., 6 Rand. 245; Webb v. Portland Manuf. Co., 3 Sumn. 189; and there must be a strong and mischievous case of pressing ne- cessity, or the right must have been previously established at law: Van Bergen v. Van Bergen, 3 Johns. Ch. 282; Gardner v. Newburgh, 2 id. 164; Att'y-Gen. v. Utica Ins. Co., id. 379. But if the thing is in itself a nuisance, and the plaintiff's right is not doubtful, the court will interfere to stay irreparable mischief, without waiting for the result of a trial. Mohawk Br. Co. v. U. & S. R. R., 6 Paige, 554; Huds. & D. Canal Co. V. N. Y. & E. R. R., 9 id. 323. It will not interpose if the nuisance has been acquiesced in, or encouraged by the party seeking relief: Len- thard v. Morris Canal Co., 1 N. J. Eq. 518; Harrison u. Newton, 9 N. Y. Leg. Obs. 347; Saunders v. Smyth, 3 Myl. & C. 711; Lewis v. Chap- SEC. v.] OF NUISANCE. 253 formality of legal process ; ^ and trespass will not lie against him, either for the entry or the abatement, provided he has sustained special injury by it, and provided' further that he commits no riot in doing it.^ § 209 a. Abatement of. — A public nuisance may be abated by any one, a private nuisance by any one whose property is injured.^ For its removal a party is only liable to the owner for any wanton or unnecessary injury he may cause ; and the kind of property suffering detriment as well as other circum- stances attending the occurrence are always to be taken into consideration when determining the question of damage. At the same time the authorities agree he has no right to abate a writ if it involves a breach of the peace or gives occasion to a riot.* Thus where the nuisance complained of was the ob- struction of a rivulet by a dam, by means whereof the defend- ant's cattle could not obtain water so plentifully as before, the defendant was justified in entering upon the plaintiff's soil and removing the dam.® Lord BUenborough, delivering man, 3 Beav. 133; or if he consents to their erection, unless some in- jurious change is afterwards made in them: Hulme !i.-Shreve, 4 N. J. Eq. 116 ; or, if it merely contravenes the general or public policy : Smith v. Lockwood, 13 Barb. 209. 1 Gleason v. Gary, 4 Conn. 418; Kendrick v. Bartland, 2 Mod. 253; Eaikes v. Townsend, 2 Smith, 9; Meeker v. Van Rensselaer, 15 Wend. 397. The act of a plaintiff in abating a private nuisance does not bar him of an action of damages; for the abatement of a nuisance is merely preventive. Pierce v. Dart, 7 Cow. 609. Nor does his assent to it take away his right afterwards to abate it if he thinks proper. Pilchar v. Hart, 1 Humph. 524. 2 Wetmore v. Tracy, 14 Wend. 250; Baten's Case, 9 Co. 54, b; Col- burn V. Richards, 13 Mass. 420; Fort PI. Bridge Co. v. Smith, 30 N. Y. 44; Dougherty !>. Bunting, 1 Sandf. 1; Hari'ower v. Ritson, 37 Barb. 301. ' Arundell e. McCulloch, 10 Mass. 70 ; Wetmore v. Tracy, 14 Wend. 250; Lancaster T. Co. v. Rogers, 2 Pa. St. 114. *■ Day V. Day, 4 Md. 262; Ely v. Niagara Co., 36 N. Y. 297. * Eaikes v. Townsend, 2 Smith, 9. " If a man builds a house so near to mine that it stops ray lights or shoots the water upon my house, or is in any other way a nuisance to me, 1 may enter upon the owner's soil, and pull it down, and for this reason only a small fine was set upon the defendant in an indictment for a riot, in pulling down some part of a house, it being a nuisance to his lights, and the right found for him in 254 EIGHTS AND LIABILITIES, ETC. [CHAP. VI. the opinion of the court in this case, illustrates the principle by the following cases : " If a man make a ditch in his own land, by means of which the water which runs to my mill is diminished, I may myself fill up the ditch. If he erects upon his own soil anything which is a nuisance to my house, mill, or land, I may remain on my own soil, or enter upon his, and throw it down, and justify this in an action of trespass. If lie stops my way to my common, and encloses the common, I may justify the dejection of the enclosure of the common or way. And this I may still do if I have only an estate for years." But a man may not turn the water back on the land of the party who increases the natural flow of the stream by means of ditches.^ § 210. Reasonable Care to be used in Abatement of. — In abating a private nuisance, a party is bound to use reasonable care that no more damage is done than is necessary to effect the purpose ; and, so long as he complies with this rule, he will not be answerable for any damage resulting from his acts in relation thereto.^ As where a man erected a mill-dam partly upon his own land and partly upon the land adjoining, and the owner oi the adjoining land pulled down the portion of the dam standing upon his land, by which all the dam fell down, and the water ran out, the court held the action of the latter justifiable.^ So if one erects a wall, partly upon his own land and partly upon the land of his neighbor, and the neighbor pulls down that part of the wall which projects over on his land, and thereupon all the wall falls down, this is lawful.* But he may not abate more than is absolutely neces- sary, and therefore, where a plaintiff had a right to irrigate his meadow by placing a dam of loose stones across a stream, and occasionally a board and fender, and he fastened the an action for stopping his lights." Kex v. Rosewell, 2 Salk. 459; and see Bellows v. Sackett, 15 Barb. 96. 1 Williams v. Gale, 3 Har. & J. 231. 2 Hicks V. Dorn, 42 N. Y. 47; Dyer v. Depui, 5 Whart. 584; Gates ti. Blincoe, 2 Dana, 158; James v. Hayward, W. Jones, 222. " 2 RoUe, Abr. Nusans (S). * Wigford V. Gill, Cro. El. 269. SBC. v.] OP NUISANCE. 255 board with two stakes, which he had no right to do, the de- fendant was held justifiable in removing the stakes, but not in removing the board.^ § 211. Private Action for. — Damages. — Demand. -^ The fact that a private nuisance is indictable as a public nui- sance; or the continuance of a nuisance, as where it was created by the overflowing of lands by means of a mill-dam, for twenty years and upwards, — ■ though it constitutes no de- fence to a proceeding on the part of the public to abate it, will in neither case prevent an individual from bringing an action against the party causing it, provided he can prove that he has himself sustained some special injury thereby, distinct from what he suffers in common with the public.^ And the rule applies in favor of any person who suffers damage, whether direct or consequential, from a common nuisance.^ Nor will the abatement of a nuisance by a plaintiff preclude him from recovering damages sustained by himself prior to the abate- ment.* No previous demand to remove the nuisance need be made before making such an abatement, except where the tenement on which the nuisance is erected has passed into other hands since its erection ; ^ and a demand may then be made, either on the lessor or lessee ; for the continuance of it is, as we have seen, a nuisance by the lessee, against whom an action would also lie.^ 1 Greenslade v. Halliday, 6 Bing. 379 ; ■Williams v. Gale, 3 Har. & J. 231. 2 Chichester v. Lethbridge, Willes, 73; Crowder v. Tinkler, 19 Ves. 621; Mills v. Hall, 9 Wend. 315; and see Penruddock's Case, 5 Co. 101. ' Lansing v. Smith, 4 Wend. 9 ; Cole v. Sproul, 35 Me. 161 ; Stetson «. Faxon, 19 Pick. 147; Harrison v. Sterett, 4 Harr. & M. 540; Gates v. Blincoe, 2 Dana, 158. * Gleason v. Gary, 4 Conn. 418; Pierce v. Dart, supra. 6 Wigford V. Gill, supra ; Conhocton St. Rd. v. Buff. N. Y. & Erie R. R. Co., 51 N. Y. 573; when notice or knowledge of its existence must be shown. ° Brent v. Haddon, Cro. Jac. 555; Gleason v. Gary, supra. 256 EiaHTS AND LIABILITIES, ETC. [CHAP. VI. SECTION VI. OP EASEMENTS. § 212. In General, what. — We have seen that a tenant is entitled to the use of all those privileges, easements, and ap- purtenances in any way belonging to the premises under lease, as incident to his grant, unless they have been expressly re- served, and excepted out of the lease ; ^ while he is, at the same time, bound to the performance of all such duties as have been lawfully imposed upon the land for the benefit of others, either by private agreement or by virtue of some regulation made by authority of the city or town within whose boundary he has located himself. As these duties and easements essentially affect the tenant's enjoyment of the premises, we propose to notice the most important of them, with some of their modifi- cations. Under the head of easements may be included all those privileges, which the public, or the occupants of neigh- boring lands, or tenements, have in the lands of another, and by which the servient owner, upon whom the burden of the prii-ilege is imposed, is obliged to suffer, or not to do some- thing on his own land, for the advantage of the public or of the person to whom the privilege belongs.^ Of these we may 1 Thus the lease of a mill "just as it is," and with no conditions at- tached to the tenancy, carries with it the exclusive right to the use of the water which furnishes the motive power to the mill. Moody v. King, 75 Me. 497. 2 An easement is a privilege without profit, which one neighboring tenement hath of another, existing in respect of their several tenements; by which the servient owner is obliged to suffer, or not to do something on his land, for the advantage of the dominant owner. As to its essen- tial qualities, it is incorporeal, although imposed upon corporeal property; confers no right to a participation in the profits arising from such prop- erty; is imposed for the benefit of corporeal property, and must exist between two distinct tenements, — the dominant, to which the right belongs, and the servient, upon which the obligation rests. Termes de la Ley; Gale & Whatley's Law of Easements. As an incorporeal heredita- ment, it passes with the dominant tenement by grant or succession ; and the servient tenement is transmitted subject to the easement, in like man- ner. Wolfe V. Frost, 4 Sandf. Ch. 72. No one can be said to have an easement in his own land. Huttemeier v. Albro, 2 Bosw. 546. SEC. VI.] OF EASEMENTS. 257 specify ways, commons, fisheries, watercourses, removal of buildings, and the right of support from neighboring soil. There are, besides, a great variety of other servitudes enume- rated by Chancellor Kent, in his Commentaries, which grow up in cities, where the population is dense and the buildings are compact, — as tlie right of support, which arises from con- tract or prescription, where the owner of a house stipulates to allow his neighbor to rest his timbers on the walls of his house, or the servitude of drip, by which one man engages to permit the waters flowing from the roof of his neighbor's house to fall on his estate. Of the same description is the right of drain, or leave to convey water in pipes through or over the estate of another. These servitudes or easements can only be created by the owner of the servient tenement ; and one tenant in common cannot establish them upon the common property without the consent of his co-tenant. Their extent must be determined by the terms of the grant, or the nature of the enjoyment by which they were acquired ; and if established by prescription, or to be inferred from user, they are limited to the actual user.^ They may be limited to certain times ; as the drawing of water from a neighbor's well at certain hours ; or a right of passage to a portion of the day, or to a certain place. And are always to be distinguished from a mere license, or personal privilege of doing particular acts upon the land of another, and which may or may not be con- ferred upon a tenant, or may be allowed to one tenant and withheld from another. Any attempt to exercise such privi- leges without the owner's consent will subject the party to an action ; and a court of equity has jurisdiction in a proper case to regulate, or restrain by injunction, any violation of rights established by grant or otherwise.^ 1 Dixon V. Clow, 24 Wend. 188; Corning w. Gould, 16 Wend. 531. A right claimed by user, is only co-extensive with the user. Brooks v. Curtis, 4 Lans. 283. ^ 3 Kent, Conrj. 436; Seymour v. McDonald, supra; Brouwer v. Jones, 23 Barb. 153. See the distinction between an easement and a license, post, § 237 a. VOL. I. — 17 258 EIGHTS AND LIABILITIES, ETC. [CHAP. VI, (a.) Of a Bight of Way. § 213. Defined. — Arises from Grant, express or implied, or from Necessity. — A right of way is the right to use the sur- face of another person's land for the purpose of passing and repassing; and it includes the incidental right of properly- adapting the surface to that use, by levelling, gravelling, ploughing, or paving, while the owner of the soil retains all the rights and benefits of ownership consistent with such an easement.^ It may arise by a grant of the owner of the soil ; by prescription, which supposes a grant ; or from necessity. When claimed by grant, it can only be created by deed, al- though it may be but an easement upon the land of another, and not an interest in the land itself. It concedes only a right of passing in a particular line, and not to vary it at pleasure, or to go in different directions ;2 and, if granted for a particular purpose, it does not include a right of way for another purpose.^ If it be a right of way, in gross, or a personal right, it is not assignable ; and is in that case so exclusive that the owner of the right cannot take another person with him. But when the right is appendant, or an- nexed to the estate, it passes with the land to an occupant or assignee.* 1 Perley v. Chandler, 6 Mass. 454; Atkins v. Boardman, 2 Met. 457. The owner of a right of way has a right to remove all obstructions placed in it. Williams v. Safford, 7 Barb. 309. The grantee of a private right of way, for his own accommodation, must keep it in repair. Wynkoop v. Burger, 12 Johns. 222. 2 Hewlius "v. Shippam, 5 B. & C. 221; Jones v. Percival, 5 Pick. 485. ' Cowling V. Higginson, 4 M. & W. 245. * Staple V. Heydon, 2 Ld. Ray. 922 ; Ackroyd v. Smith, 10 C. B. 164. Under a lease of an alley, describing it as a lot of land, reserving a right of way to the grantor through the granted lot, it was held that the grantor was not bound to leave the whole alley open, but only enough to give unobstructed the right of way for the purposes reserved. Jackson v. Allen, 3 Cow. 220. It is no defence to an action for use and occupation, under a lease of a right of way, that other persons than the lessee have the same right, if such right is in neither case exclusive. Ledyard v. Moray, 54 Mich. 77. SEC. VI.] OF EASEMENTS. 269 § 214. From necessity. — When incident to a grant. — Rights of parties. — A right of way from necessity arises ■when a man. leases or sells land to another, which is wholly surrounded by his own land ; and the lessee or purchaser in such case is entitled to a reasonable passage over the lessor's ground to arrive at his land; for this is a necessary incident to the grant, without which the grant would be useless.^ It cannot be claimed by one who already has a way over his own ground, however inconvenient that may be ; '^ nor if there is a nearer and a better way than that which is claimed.^ The right of locating it belongs to the owner of the outer land; but it must be a convenient way.* And after it has been once marked out, the grantee has no right to deviate from the course- so designated ; although the way may become impassable from being temporarily overflowed, or otherwise.^ There is, how- ever, a temporary right of way over adjoining lands if the highway be out of repair, or otherwise impassable ; but this principle applies only to public and not to private ways, for a person having a private way over another's land has no right to go upon the adjoining land, even though the private way be impassable.® § 214 a. Liability of Owner of servient Estate. — As a general rule easements impose no personal obligation upon the owner of the servient tenement to do anything ; and it is an infer- ence of law in the absence of a grant or contract that the » Doty V. Gorham, 5 Pick. 487; Holmes v. Seely, 19 Wend. 507. Al- exander !i. Tolleston Club, 110 111. 65; Powers v. Harlow, 53 Mich. 507. Where a tenant acts at his own peril in accepting a lease of land tp which there is no road, although some marks indicating such a road appear, no fraud as against the tenant is to be imputed to the landlord, in the absence of positive misrepresentation on his part. Handrahan v. O'Regan, 45 Iowa, 298. 2 McDonald v. Lindall, 3 Rawle, 492. 8 Jeter v. Mann, 2 Hill, (S. C.) 641. * Russell V. Jackson, 2 Pick. 574; Capers v. Wilson, 3 McCord, 170. 5 Miller v. Bristol, 12 Pick. 550 ; Wynkoop v. Burger, supra. « Miller v. Bristol, 12 Pick. 552; Taylor v. Whitehead, Doug. 745. If a man gives another a license to lay pipes of lead in his land, to convey water to a cistern, he may enter on the land, and dig therein, to mend the pipes. Per Twisden, J., in Pomfret v. Ricroft, 1 Saund. 321. 260 EIGHTS AND LIABILITIES, ETC. [CHAP. VI, party ■who enjoys the benefit of an easement must keep it in repair. And therefore a person over whose land another has a right of way may be liable to an action for obstructing the way, but not for suffering it to be out of repair, unless he is expressly bound by contract or by prescription to keep it in repair.i If he obstructs away which he has once granted, the grantee may go extra viam over other of his land, and neither he nor a purchaser with notice from him will be allowed to obstruct the substituted mode of access, so long as the origi- nal obstruction exists.^ The extent to which the owner of agricultural lands subject to a right of way by the owners of the same description of lands, may obstruct or interfere with the use of them by gates and bars, is to be determined by the necessity of the erection of such obstructions for the protec- tion of his other property ; and in every case the question is for the jury .3 § 215. Along Banks of navigable Streams. — The question has been much discussed whether a right of way, or path for towing vessels, exists along the banks of navigable rivers. Mr. Chancellor Kent observes, that, in those countries where the liberal doctrines of the Eoman law have been adopted, lands on each side of a navigable river, as well as on the sea- shore, have always been regarded as dependencies of the public domain, and subject to the servitude, or burden, of towing-paths, for the benefit of the public ; but that no such right exists according to English law.* There has been no adjudication upon this point in New York although it has been held that the public have no right to use and occupy the land of an individual, adjoining navigable waters, as a public landing, or place of deposit of property in its transit, against the will of the owner; notwithstanding such user 1 Prescott V. White, 21 Pick. 342; Prescott v. Williams, 5 Met. 435; Doane v. Badger, 12 Mass. 69. The owner of the servient estate is bound to do no act to render the way unnecessarily dangerous. Thus a railroad company is bound to use reasonable care in running its trains over a way appurtenant to houses which it leases to its employees. McDermott v. N. T. C. & H. R. R. Co., 28 Hun, 325. 2 Selby V. Nettlefold, L. R. 9 Ch. 111. » Husen v. Young, 4 Lans. 63. * Ball v. Herbert, 3 T. B, 253. SEO. VI.] OF EASEMENTS. 261 may have been continued upwards of twenty years, with the knowledge of the owner.^ Nor is the lessee of a wharf en- titled, by virtue of his lease, to place structures on the pier which would materially encumber it, or interfere with its free use for purposes connected with navigation, by the general public, however advantageous the erection might be to him, or to those interested with him. But it is held, in Missouri, that navigators and fishermen are entitled to the temporary use of the banks of navigable rivers in that State, though owned by private individuals, for the purpose of landing and repairing their vessels, and exposing their sails and merchan- dise; but that such use is only for transient purposes, and under restriction.^ § 216. For special Uses, limited to such Uses. — A right of way by prescription, for agricultural purposes, is a limited and qualified right, and does not necessarily confer a right to use such way for general or commercial purposes ; nor does a right of way for carriages necessarily include a way for cattle.^ A reservation, in a lease, of a right of way on foot for horses and cattle, does not give a right to carry ma- nure ; * for a right of way to a close for some purposes cannot 1 Pearsall v. Post, 20 Wend. Ill; s. c. 22 id. 425; Comm'rs v. Clark, 33 N. Y. 251. This case also holds that the lease of a wharf from the public authorities of a city does not confer on the lessee an exclusive right to the possession, use, or control of the wharf. So far as it is used by his own vessels, he pays no wharfage ; and so far as it is made use of by other persons, he, as the grantee of the city, succeeds to the rights of that cor- poration in respect to wharfage. It is, notwithstanding, a public wharf, and vessels resorting to it, whether they are those of the lessee or of other persons, are subject to the general rules of law regulating the use of wharves, piers, and slips, and the mooring and stationing of vessels. 2 O'Fallon v. Daggett, 4 Mo. 343. There is nothing inconsistent with the purposes of a sea or river wall, or embankment erected to protect neighboring lands, in a right of way along the surface thereof; and the same evidence of user will raise a presumption of a dedication of a right of way by the owner of the soil, in the case of such an embankment, as in any other case of uninterrupted and open user by the public. Greenw. Bd. V. Maudsley, L. R. 5 Q. B. 897. » Jackson v. Stacy, Holt, N. P. C. 455; Ballard v. Dyson, 1 Taunt. 279; Kirkham v. Sharp, 1 Whart. 323. * Brunton v. Hall, 1 Gale & D. 207. 262 EIGHTS AND LIABILITIES, ETC. [CHAP. VI. be enlarged for other purposes.^ But the extent of this right is a question for a jury under the circumstances of each par- ticular case.2 And as a general rule, where there is a license to use a certain way, there must be a reasonable use of it ; as, if a man let a house, reserving a right of way to the rear, he cannot go through without request, nor at unseasohable hours.3 Twenty years' uninterrupted user is sufficient to presume the grant of a right of way, provided it is held ad- versely, and not by permission.* But the erection of a gate at the time a way is opened, or the open declarations of the owner at such time, contradictory of the right, will rebut the presumption of the grant of a common way.^ The extent of the right is limited by the ordinary mode of user, unless a grant be shown, in which case it will be confined to the terms of the instrument not having been adverse thereto.^ § 217. When defeated by Non-user or uniting Possession. — From long forbearance to exercise a right of way, a release of it may be presumed ; but when the right can only be acquired by twenty years' enjoyment, it cannot be lost by disuse for a shorter period.'' Unity of possession, of the close where a private way exists, with the close to which such a way is ap- purtenant, or which gives the right of way, may cause an extinction of the same ; as, if a man have a way over the close of another, and he purchases that close, the way is extinguished by unity of possession.^ But this is to be un- derstood of a mere way of easement ; for if it be a way of necessity, it will not be extinguished by such a unity of pos- 1 Comstock V. Van Deusen, 5 Pick. 163 ; Webster v. Each, 1 Freem. 247. 2 Cowling V. Higginson, 4 M. & W. 245. s Tomlin v. Fuller, 1 Vent. 48. * Maverick v. Austin, 1 Bail. 59; Gayetty t7. Bethune, 14 Mass. 53; , TurnbuU v. Rivers, 3 McCord, 131. 5 Commonwealth v. Newbury, 2 Pick. 51 ; Barker v. Clark, 4 N. H. 384. » Hart V. Chalker, 5 Conn. 316; Atkins v. Boardman, 20 Pick. 291. ' Wright V. Freeman, 5 Har. & J. 476; Emerson v. Wiley, 10 Pick. 316; White v. Crawford, 10 Mass. 189. See also Miller v. Garlock, 8 Barb. 153. 8 Dyer, 295; Sury v. Pigott, Palm. 446; s. c. 3 Bulst. 340. SEC. VI.] OF EASEMENTS. 263 session ; nor unless the necessity has ceased.^ And if it be a prescriptive easement, mere unity of possession but suspends the right; it requires a unity of ownership to destroy it.^ Therefore, where a party seised in fee of certain premises took a lease of the adjoining land, the owner of which had previously enjoyed an easement in the former, such unity of possession was held to suspend, but not to extinguish, the right of way over the former.^ (b.) Of Commons. § 218. Defined. — Right of, exists in New York. — The term commons is used to denote. that right or privilege which one or more persons have to take or use some portion of that which another person's lands, woods, or waters produce, in order to provide pasture for his cattle, fuel for his family, or means of repairing his houses, fences, and implements of husbandry. It was originally designed to encourage agricul- ture, and generally commenced in some agreement between lords of manors and their tenants ; but, being continued by usage, it became valid without an instrument in writing to prove the original grant. The most general and valuable kind of common is that of pasture, or the right of feeding one's beasts on another's lands. The policy of the old law, however, in favor of common of pasture and of estovers, as being conducive to improvement in agriculture, has entirely changed or become obsolete, and the right itself is now scarcely recognized in this country. It probably does not exist in any of the Northern or Western States of the Union,* except in the State of New York, where it has been the sub- ject of litigation ; resulting, substantially, in the adoption of the principle of English law, that where the right of common of pasture has once been established, the right of the owner of the soil to improve the residue of his waste lands must be I Grant v. Chase, 17 Mass. 443; McDonald v. Lindall, 3 Kawle, 495. = Manning v. Smith, 6 Conn. 289; Canham v. Fisk, 2 Tyrw. 155. 8 Thomas v. Thomas, 2 Cr. M. & K. 34. * Trustees v. Kobinson, 12 S. & R. 33. 264 EIGHTS AND LIABILITIES, ETC. [CHAP. VI. exercised consistently with the preservation of the right of common.^ § 219. Appendant or Appurtenant. — Of Pastures and Estovers. — Common of pasture is either appendant or appurtenant. The first is founded on prescription, and is regularly annexed to arable land. It authorizes the tenant to put commonable beasts upon the waste grounds of the manor, but such beasts must be levant and couchant on the estate ; that is, such cattle only as are necessary to plough and manure the land, and so many as the land will sustain during the winter. Common appurtenant may be annexed to any kind of land, and niay be created by grant as well as by prescription. It allows the occupant to put in other beasts than such as plough or manure the land ; and, not being founded on necessity, like the other right as to commonable beasts, was never favored in law.^ Common of pasture, whether appendant or appurtenant, may be apportioned ; for, as the land is entitled to common only for such cattle as are necessary to plough and manure it, the common cannot of course be surcharged by any number of divisions or subdivisions in consequence of alienation. Such common, therefore, being incident to the land, passes with it in such proportions as the land may be divided into.^ But common of estovers is not apportionable : for if this were to be allowed, the land might be surcharged ; as if, for instance, estovers are granted to a farm of two hundred acres, so long as this is one farm there is but one house to be supplied, and, perhaps, not more than two chimneys ; but, if the farm is divided, and another house becomes necessary, double the I Watts V. Coffin, 11 Johns. 495. A custom that all the inhabitants of a particular town, for the time being, have the right to depasture the un- enclosed woodlands of individual proprietors within the town, is not a mere easement, like a right of way, or a right to flow water; it is a right to take a profit ; and for such a right, the commoner must prescribe in respect to some estate, and not in respect to mere inhabitancy. The cus- tom is therefore void. Smith v. Floyd, 18 Barb. 522; Pearsall v. Post, 20 Wend. Ill ; s. c. 22 id. 425; Grimstead v. Marlowe, 4 T. R. 717; Gate- ward's Case, 6 Co. 59, b. ^ Van Rensselaer v. Radcliff, 10 Wend. 639. « Livingston v. Tenbroeck, 16 Johns. 26 ; Bennet v. Reeve, Willes, 227. SEC. VI.] OP EASEMENTS. 265 number of chimneys must be supplied, which would be in- jurious to the inheritance if it were to be allowed.^ So, also, with respect to fences and buildings ; upon a division of the farm, more fences and buildings become necessary, and if both are to be supplied from the woods of the proprietor, an increased quantity would be taken, when by the grant itself only estovers for one farm were intended. § 220. Estovers a Joint Right, and not Apportionable. — Since estovers cannot be apportioned, neither of the tenants, in case of the division of a farm among themselves, can have them. They belong to the whole farm as an entirety, and not to parts of it ; and as the owner of no one portion can enjoy the right, it is necessarily extinguished, and can only be revived by a new grant.^ And if common of estovers devolves upon several by operation of law, as by descent, they cannot (at least under the operation of the statute of descents in New York) enjoy the right in severalty ; although they may unite in a conveyance, and vest the right in one individual. It is a joint right, and is to be enjoyed by the heirs or their assigns jointly, — on the principle that the land charged with the right ought not to have an increase of burden by the multiplication of claimants.^ If a stranger, who has no right to . its enjoy- ment, puts his cattle upon the common, the landlord may distrain them damage-feasant, or may have his remedy by action of trespass ; and the commoner may, in like manner, distrain, or sue for damages by an action on the case.* If a commoner surcharge the common, the landlord may distrain the extra beasts, or bring trespass, while the other commoners may have an action on the case.^ 1 Livingston v. Ketcbam, 1 Barb. 592. » Van Rensselaer v. RadclifE, 10 Wend. 649; Coming v. Gould, 16 Wend. 531. * Leyman v. Abeel, 16 Johns. 30. A tenant entitled to estovers in the unappropriated lands of a manor, may, if the landlord seeks to deprive him of his right by leases of the adjoining common lands, resort to move distant parts, though they are more valuable. Van Rensselaer v. Brice, 4 Paige, 174. Firebote cannot be claimed for an under-tenant. Sarles V. Sarles, 3 Sandf. Ch. 601. * Cheesman v. Hardham, 1 B. & A. 706; Ricketts v. Salwey, 2 id. 360. 6 Bowen v. Jenkins, 6 Ad. & E. 911. 266 EIGHTS AND LIABILITIES, ETC. [CHAP. VI. (c.) Of Fisheries. § 221. General or Private, defined.. — A common of fishery, according to Mr. Chancellor Kent, is of two kinds : the one, a right of fishing common to all ; and the other, a right vested exclusiYely in one or a few individuals. By the common law, owners of land on the banks of fresh-water rivers, above the ebbing and flowing of the tide, have the exclusive right of fishing, as well as the right of property opposite to their respective lands ad filum medium aquce. And where the lands on each side of the river belong to the same person, he has the same exclusive right of fishery in the whole river, so far as his lands extend along the same. But such right is always subject to the public convenience ; and all erections or impedi- ments made by the owners, so as to obstruct the free use of a river, as a highway for boats or rafts, are deemed nuisances.^ So far as regards rivers that are not navigable (and, in the common-law sense of the term, those only are deemed navi- gable in which the tide ebbs and flows), an exclusive right of fishery may be established by proof of a grant or prescription,^ but it is subject to the qualification that it cannot be so used as to injure private rights of others ; nor extend so far as to impede the passage of fish up the river, by means of dams or other obstructions.^ § 222. In navigable Waters a public Right. — AUter in Streams not navigable, unless by Prescription. — The private right of fishery is confined to fresh-water rivers, above tide-water, unless a special grant or prescription is shown ; but the right of fishing in the sea, or in a bay or arm of the sea, and also 1 Hooker v. Cummings, 20 Johns. 90. " Gould V. James, 6 Cow. 369; Brookhaven v. Strong, 1 S. C. 415; Rogers o. Jones, 1 Wend. 237. s People V. Piatt, 17 Johns. 195; Ex parte Jennings, 6 Cow. 518; Comm'rs v. Kempshall, 26 Wend. 404; People v. Tibbets, 19 N. Y. 528; Berry v. Carle, 3 Greenl. 269 ; Scott v. Willson, 3 N. H. 321 ; Common- wealth V. Charlestown, 1 Pick. 180; Adams v. Pease, 2 Conn. 481 ; Browne V. Kennedy, 5 Har. & J. 195. SEC. VI.J OF EASEMENTS. 267 in navigable or tide waters, is a right public and common to every one ; and no individual can appropriate to himself an exclusive privilege in navigable waters, or in an arm of the sea, without showing a grant or prescription for the same.^ But no person has at common law a right of going over another man's land for the purpose of fishing, or of crossing the grounds of an individual lying upon the beach or sea- shore, on foot, or otherwise, in order to bathe in the sea, as against the owner of the soil of the shore.^ The legislatures of the several States have assumed the regulation of the pas- sage and protection of fish, in streams not navigable in the technical sense. And it is now considered that fisheries are, as at common law, the exclusive right of the owners of the banks of rivers not navigable, unless otherwise appropriated by statute ; and that the right, unless secured by a particular grant or prescription, is held subject to legislative control.* But by force of a grant, or by prescription, a person may have an exclusive right of fishery, even in an arm of the sea, or in a navigable river, where the tide ebbs and flows. Thus, a patent to the inhabitants of a town, conveying all lands under water within the bounds of the grant, together with the exclu- sive right of fishing in the waters of the same, confers this right as the common property of the town, and may be regulated by rules adopted at the town-meeting.* § 223. Rights of Abutters on navigable "Waters. — Although the right of fishing in a navigable river is a common right, 1 Arnold v. Mundy, 1 Halst. 1 ; Martin v. Waddell, 16 Pet. 400; Par- ker V. Cutler Man. Co., 20 Me. 353; Carter v. Murcot, 4 Burr. 2162; Mayor v. Richardson, 4 T. R. 437. A riparian proprietor on the bank of the Hudson River has no better right to the use of the soil between high and low water mark than any other person. Gould v. Huds. River R. R. 6 N. Y. 522. 2 Blundell v. Catterall, 5 B. & A. 268. A right of fishing in any water gives no power to erect huts on the land for that purpose. Cortelyou V. Van Brundt, 2 Johns. 357. ^ Stoughton V. Baker, 4 Mass. 527 ; Nickerson v. Brackett, 10 id. 212 ; Waters v. Lilley, 4 Pick. 145; Vinton v. Welsh, 9 id. 87; Cottrill w. Myrick, 3 Fairf. 222; Lunt v. Hunter, 16 Me. 1. * Rogers v. Jones, 1 Wend. 237. 268 EIGHTS AND LIABILITIES, ETC. [CHAP. VI. the adjoining proprietors have the exclusive right of drawing a seine and taking fish on their own land ; and if an island, or a rock in tide-waters, be private property, no person but the owner has the right to use it for the purpose of fishing.' It may be observed, also, that in Pennsylvania the doctrine which holds no rivers to be navigable, so as to confer the common right of fishery, except those where the tide ebbs and flows, is not applicable to the great rivers of that State ; and that the owners of land on the banks of such rivers as the Delaware and Susquehanna, so far as they are common high- ways, have no exclusive right of fishing opposite their respec- tive lands. The right to such fisheries is declared to be vested in the State, and open to all the world.^ A similar exception to the common-law rule has been suggested to exist in North and South Carolina, and probably in other States.* The property which the law gives, in river-fish uncaught, is of that kind which is called special or qualified property, and is derived out of the right to the place or soil where such fish live : a man has a special property in them so long as they are upon his land, or in the water which flows over it ; but he loses such property the moment they resort to the soil or water of another. However, if an individual plants a bed of oysters, even in a bay or an arm of the sea, and marks it out by stakes, it is held to be no interference with the common right of fishing in such bay, and he acquires a qualified property in such oysters, sufficient to enable him to maintain trespass against any person who invades such property.* (d.) Watercourses. § 224. Natural, Eights of Owner of the Soil in. — With respect to the use of water, every proprietor of land through which a natural stream of water flows, has a right to the advantages of that stream, flowing in its natural course, and to use it, for 1 Lay I'. King, 5 Day, 72 ; Commonwealth v. Shaw, 14 S. & R. 9. " Carson v. Blazer, 2 Binn. 475; Shrunk v. Schuylkill Nav. Co., 14 S. & R. 71. ' Ex'ors V. Waddington, 1 McCord, 580; Collins v. Benbury, 3 Ired. 277. * Pleet V. Hegeman, 14 Wend. 42. SEC. VI.] OF BASEMENTS. 269 any reasonable purpose not inconsistent with a similar right in the proprietor of the land above and below. He may detain it, by means of a dam, long enough for a profitable enjoyment of it ; and is entitled to have the whole of it pass through his land, though he may not require the whole or any part of it for the use of machinery.^ But if, after having applied it to some purpose of utility, he is interrupted in doing so by a diversion of the water, he has no right of action against the person diverting it, unless he has had an exclusive occupation for a sufiBcient length of time to raise a presump- tion of a grant to use it to the detriment of others.^ He has no absolute property in the water of such a stream, and there- fore he cannot, without the consent of other proprietors, divert or diminish the quantity of water which would otherwise de- scend to the proprietor below,^ or throw the water upon the • Cropker v. Bragg, 10 Weud. 260; Van Hoesen v. Coventry, 10 Barb. 518; Holden v. Lake Co., 53 N. H. 552; Bealey v. Shaw, 6 East, 208. Where hydraulic privileges are created by conducting a stream across lands in an artificial channel, the proprietors of lots crossed by it, in the absence of any stipulation to the contrary, have the same rights to the use of the water on their respective lots as between themselves, as would exist if the artificial were the natural channel of the stream. Townsend V. McDonald, 12 N. Y. 381. » Mason v. Hill, 5 B. & Ad. 23; Frankum v. Falmouth, 6 C. & P. 529; Hatch v. Dwight, 17 Mass. 289; Strickler v. Todd, 10 S. &K. 63; Hazard v. Robinson, 3 Mason, 272. And see Piatt v. Johnson, 15 Johns. 213; Merritt v. BrinkerhofE, 17 id. 306. * Marshall v. Peters, 12 How. Pr. R. 218. Nor can he appropriate the ice formed therein to his own exclusive use. In W. Roxbury v. Stoddard, 7 Allen, 158, an action was brought against persons who cut ice from Jamaica Pond, the fee of the land under said pond being vested in said town, for public uses. The court held that fishing, fowling, boating, bathing, skating, or riding upon the ice, taking water for domestic or agricultural purposes, or for use in the arts, and the cutting and taking of ice, are lawful and free upon these ponds, to all persons who own land adjoining them, or can obtain access without trespass, so far as they do not interfere with the reasonable use of the pond by others, or where the legislature has not otherwise directed; that the town of West Roxbury had no such property in the ice on Jamaica Pond as would enable it to main- tain this action, even if the fee of the pond be considered to be in the town ; and that the remedy for any unreasonable or excessive use of the liberty of cutting ice, being the violation of a public right, is by indict- ment ; and the towns may regulate the use of the ponds -by reasonable 270 RIGHTS AND LIABILITIES, ETC. [CHAP. VI. proprietor above, without a grant, or an uninterrupted enjoy- ment of such a privilege for twenty years, which is equivalent to a grant.^ And where a spring of watei; rises upon the land of one person, and from it flows a stream to the land of another, the owner of the land where the spring rises has no right to divert the stream from its natural channel ; although the waters of the stream are not more than sufficient for his domestic uses, his cattle, and the irrigation of his land.^ To establish a right to a watercourse, it must appear that the water usually flows in a certain direction, and by a regular channel, with banks or sides ; but it need not flow continually, and may at times be dry, yet it must have a well-defined and substantial existence.^ A riparian proprietor cannot erect a dam above the mill of another, by which the water is diverted from its accustomed channel, so as to affect the regularity of the supply, though there is no waste of water, and notwith- standing it may be returned to its ordinary channel long before by-laws, adopted and approved according to statute. If these are insuf- ficient, resort must be had to the legislature. That ice, after it has been stored for domestic use, may be property, see Ward v. People, 6 Hill, 144. In People's Ice Co. v. Steamer Excelsior, 44 Mich. 229, it was held that a lessee of riparian rights on a navigable stream might enclose and store ice for his own use and profit, within the limits embraced in his lease, so long as he did not thereby interfere with the navigation or proper use of the stream. ' Belknap v. Trimble, 3 Paige, 577 ; Gardner v. Newburgh, 2 Johns. Ch. 162; Belknap v. Belknap, id. 463; Merritt v. Parker, 1 Coxe, 460; Duraont v. Kellogg, 29 Mich. 420; Bucklin v. Truell, 54 N. H. 122; Wright V. Howard, 1 Sim. & S. 190; Bealey v. Shaw, supra; Magor v. Chadwick, 11 Ad. & E. 571. Even for the purpose of repairing his own mill. Van Hoesen v. Coventiy, supra. Nor can he justify a diversion on the ground that if the other party would make a better dam, there would still be left enough water to supply his miU. Crocker ». Bragg, 10 Wend. 260. 2 Arnold v. Foot, 12 Wend. 330. And after having changed the natural flow of the water, and continued such change for twenty years, he will not be permitted to restore it to its natm-al state, to the prejudice of mills which have been erected with reference to such change. Belknap V. Trimble, supra. 3 Wagner v. L. I. R. R., 2 Hun, 633; Barnes v. Sabron, 10 Nev. 217. It does not include mere occasional flows of surface-water. Eulrich v. Richter, 37 Wise. 226. SEC. VI.] OP EASEMENTS. 271 it reached the other's mill.^ Nor, unless he has acquired such a right by prescription, will he be permitted to corrupt a run- ning stream of water, to the prejudice of his neighbor .^ § 225. Rights in, not to be used Unreasonably or Injuriously. — And supposing a person to have acquired a certain exclu- sive right to the enjoyment of water, he will not be permitted to make use of that right in an unreasonable manner, so as sensibly to affect the application of it by his neighbors below who are on the stream ; as by shutting the gates of his dams, detaining the water unreasonably, and then letting it off in unusual quantities, to the annoyance of his neighbor.^ Nor has he a right by the erection of a dam to create a reservoir for the storage of water for future use in a dry season, though no special injury may be sustained by an adjoining proprietor.* Neither can he divert the water into artificial channels, for purposes of irrigation, to an unreasonable extent, or so as to materially diminish the quantity that has been accustomed to flow to other riparian proprietors.^ And, in general, it may be stated that, where two or more persons are entitled to a common use of water, the upper proprietor will be answerable for damages if he does not afford the lower one a fair and ^ Sackrider v. Beers, 10 Johns. 241 ; Shears v. Wood, 7 Moore, 345; Mason v. Hill, 5 B. & Ad. 1; Wright o. Howard, supra; Hammond v. Fuller, 1 Paige, 197. 2 Howell V. McCoy, 3 Eawle, 269 ; Thomas v. Bractney, 17 Barb. 654; Carhart v. Aub. Gas Co. , 22 id. 297, as, by rendering it unwholesome for cattle. Gladfelter v. Walker, 40 Md. 1; Richm. Man. Co. v. Atlantic D. Co., 10 R. I. 106. The grant of an undivided share of a stream does not authorize its use, to the injury of others jointly interested in it. The property in a stream of water is indivisible; and it must be used as an entire stream in its natural channel. Vandenburgh v. Van Bergen, 13 Johns. 212. * Van Bergen v. Van Bergen, 3 Johns. Ch. 282; Beissell v. ShoU, 4 Dall. 211; Colburn v. Richards, 13 Mass. 420; Runnels v. Bullen, 2 N. H. 532. * Clinton v. Myers, 46 N. Y. 511. Such a proprietor may insist on his legal rights without regard to the question of damages. Id. 6 Cook V. Hull, 3 Pick. 269, explaining Weston t'. Alden, 8 Mass. 136; Union MiUs Co. v. Ferris, 2 Sawyer, 176. 272 EIGHTS AND LIABILITIES, ETC. [CHAP. VI. reasonable participation in its use ; ^ but that no action can be sustained by one riparian proprietor against another for erecting a dam on the stream, whereby the water is raised along the plaintiff's land above its natural level, without proof of special damage.'^ § 226. Hight to accumulate and store Water. — It has gen- erally been held that if an owner builds a dam upon his own premises, and thus holds back and accumulates water for his benefit, or if he brings water upon his premises into a reser- voir, in case the dam or reservoir give way and the lands of a neighbor are thus flooded, he is not liable for damage with- out proof of some fault or negligence on his part.^ Thus where one built a mill-dam upon a proper model, and the work was well and substantially done, he was held not liable to an action though it broke away, in consequence of which his neighbor's dam and mill below were destroyed ; and that negligence must be shown either in the construction of the dam or in not keeping it in repair to render him liable.* But it has recently been held in England that a man, merely by bringing upon his land an artificial body of water, is liable for any injury its escape may cause, though there is no negligence on his part; and this doctrine has been approved in some States.^ Where a dam is erected upon an ancient stream to 1 Merritt v. Brinkerhoff, 17 Johns. 306; Pollitt v. Long, 56 N. Y. 200. Mere inconvenience in his business is not a cause of action, if the inter- ception of the water does not extend to the destruction or diminution of the uses of the plaintiff's mill: Palmer ». Mulligan, 3 Caines, 307; nor an imperceptible theoretical injury: Thompson v. Crocker, 9 Pick. 59. 2 Garrett v. McKie, 1 Rich. 444. * Lapham v. Curtis, 5 Vt. 371; Shrewsbury v. Smith, 12 Cush. 177; Bailey v. Mayor, 3 HUl, 531; s. c. 2 Den. 433; Pixley v. Clark, 35 N. Y. 520; Sheldon v. Sherman, 42 id. 484. * Livingston v. Adams, 8 Cow. 175. 6 Rylands v. Fletcher, L. K. 3 H. L. 830; Shipley v. Fifty Assoc, 101 Mass. 251. But it is held, distinguishing the case from Kylands v. Fletcher, supra, where the water is brought upon the premises for the benefit of tenants, that the landlord, in case of resulting injury to one of the tenants, is not liable to such tenant as for a breach of the covenant for quiet enjoyment contained in the lease. Anderson v. Oppenheimer, 5 Q. B. D. 602. SEC. VI.] OF EASEMENTS. 273 obtain a head of water for the use of one of the State canals, the surplus waters of the stream which are not wanted for public use, and which continue to flow over the dam and down the ancient channel, belong to the owners of water- rights upon the margin of the stream below, in the same manner as if the State dam had not been erected; and a lessee of the surplus waters of the canal cannot divert them to the injury of the proprietors of mill-priYileges on the stream below. No person, however, except by authority of the legislature, or of the authorized agents of the State, has a right to tap the State dam and draw off the surplus waters of the artificial pond, which is created by such a dam for public purposes.^ § 227. Right to injurious Enjoyment may arise by Grant or Prescription, but not otherwise. — The right to the enjoyment of this easement, like that of any other, may be controlled by a grant, or by prescription, which supposes a grant ; for though the stream be diminished in quantity, or injured by the exercise of certain trades, yet if the party using it has enjoyed his occupation in a similar way for twenty years, he has acquired a prescriptive right to such use, and the party below must take the stream subject to the adverse right ; it having been repeatedly held that the exclusive enjoyment of water in a particular way for twenty years without interrup- tion becomes an adverse enjoyment sufficient to raise a pre- sumption of title, as against a right in any other person, which might have been but was not asserted.^ Subject to this restriction, however, the owner of an ancient mill may lawfully enter the close of another and remove a dam erected thereon by which the water of the stream below his mill is made to flow back and prevent it from working.^ So he may 1 Varick V. Smith, 5 Paige, 137. 2 Campbell v. Smith, 3 Halst. 139; Cooper v. Smith, 9 S. & R. 26; Sherwood v. Burr, 4 Day, 344; Brown v. Best, 1 Wils. 174; Barker v. Richardson, 4 B. & A. o 9; Cross v. Lewis, 2 B. & C. 686; Livett v. Wil- son, 3 Bing. 115. And the right does not relate to the purpose for which the water is to be used, but to the manner and extent of the diversion. Smith V. Adams, 6 Paige, 435 ; Belknap v. Trimble, supra. * Hodges V. Raymond, 9 Mass. 316. VOL. I. — 18 274 BIGHTS AND LIABILITIES, ETC. [CHAP. VI. enter upon the land of a riparian owner, above his mill, and remove a dam unlawfully erected there to irrigate the latter's land, the stream being thereby stopped to such an extent as to render the mill below useless.^ And if a mill-dam across an unnavigable stream is so erected or managed as to become prejudicial to the health or comfort of others, it becomes a nuisance.2 A court of equity will by injunction prohibit the obstruction of watercourses, diversion of streams from mills, back-flowage upon them, and other injuries of like kind, which from their nature cannot be adequately compensated by damages at law.^ § 228. Prescriptive Right, how acquired. — But it is not nec- essary that the person claiming the right should have used it in precisely the same manner during the whole time of its en- joyment, or that it should have been used to propel the same machinery ; all that the law requires is, that the mode or manner of using the water shall not have been materially varied to the prejudice of others. Therefore, if a proprietor at the head of a stream has changed the natural flow of the water, and continued the change for more than twenty years, he cannot afterwards be permitted to restore it to its natural state, when it would have the effect of destroying the mills of other proprietors below, which have been erected in reference to such change in the natural flow of the stream.* And if a man has had the use of water at a given height for twenty years, a grant will be presumed of the privilege of using it at that height, and nothing more ; and if he repairs his dam, which has kept the water at that height, so as to raise the water still higher, and cause it to flow back upon his neigh- bor's mill, he is liable to an action, though the dam itself may ^ Colburn v. Richards, 13 Mass. 420. And see Curtis v. Jackson, id. 507; Sumner v. Tileston, 7 Pick. 198. 2 State V. Close, 35 Iowa, 570. ' Sanborn v. Covington Co., 2 Md. Ch. 409; Bemis v. TJpham, 13 Pick. 169. * 3 Kent, Com. 442 ; Belknap v. Trimble, supra ; Blauchard v. Baker, 8 Greenl. 253; Hazard v. Robinson, 3 Mason, 272. SEC. VI.] OF EASEMENTS. 275 remain at its ancient height ; for the question is not as to the height of the dam, but of the water.^ § 229. Streetms as Boundaries. — Rights of Abutters. — A grant of land, bounded upon a stream or river where the tide does not ebb and flow, carries the right of the grantee to the middle of the stream, unless the language of the grant is clearly such as to show the intent of the parties to be that it should not extend beyond the water's edge. If the stream is navi- gable for either boats or rafts, the public have a right to use it for those purposes, and the rights of the adjoining proprie- tors are subject to the public easement.^ They may use the water, or the land under the water, in any manner which does not impair its use as a public highway ; but they cannot erect dams, or place other obstructions in the stream, which will interfere with its free and convenient use for public purposes. Nor can the State divert the water of the stream, or interfere with it in any other manner that will render it less useful to the proprietors of the adjacent shores, without making full compensation.^ A prescriptive right to a public towing-path 1 Stiles V. Hooker, 7 Cow. 266. The mere omission by one proprietor to make use of a right which belongs to him, however long continued, will not prejudice him, or confer any right upon the adjoining proprietors. Townsend v. McDonald, 12 N. T. 381 ; Crooker v. Bragg, supra ; Bealey V. Shaw, 6 East, 208. And the constant use of a stream, for the purposes of a miU, does not deprive the proprietor above of the right to make a reasonable use of the waters for like purposes, although he may thereby disturb the natural flow of water to the lower mill. Thurber v. Martin, 2 Gray, 394. And see Chandler v. Rowland, 7 Gray, 348, 350; Smith v. Agawam Canal Co., 2 Allen, 355, 357. ^ Adams v. Pease, 6 Conn. 481; Claremont u. Carlton, 2 N. H. 369; King V. King, 7 Mass. 496; Hay v. Bowman, 1 Rand, 417; Berry v. Carle, 3 Greenl. 269; Morrison v. Keen, id. 474; Ingraham w. Wilkinson, 4 Pick. 268; Arnold v. Mundy, 1 Halst. 1;. Gavit v. Chambers, 3 Ohio, 495; Brown v. Kennedy, 5 Har. & J. 195; People v. Seymour, 6 Cow. 579; Hooker v. Cummings, 20 Johns. 90. Rivers of sufficient capacity to float to market the products of the countiy are public highways. 3 Kent, Com. 411 ; Browne v. Schofield, 8 Barb. 239. A river is deemed navigable, as far as the tide rises and falls, though the water be fresh. People v. Tibbets, 19 N. Y. 523. « People V. Canal App., 13 Wend. 355; Ex parte Jennings, 6 Cow. 548. 276 RIGHTS AND LIABILITIES, ETC. [CHAP. VI. on the bank of a navigable river is not destroyed in conse- quence of an act of the legislature which converts that part of the river adjoining a towing-path into a floating harbor; and if either the water, or the improvement, impairs the fa- cility of passing along the bank, the public have a reasonable way over the nearest part of the next field.^ § 230. No prescriptive Right in Subterranean Waters. — It has been questioned whether the right to the enjoyment of an underground spring, or of a. well supplied by such a spring, was governed by the same rule of law as that which regulates watercourses flowing on the surface. But in an action on the case for damage sustained by the loss of water from a well, in the plaintiff's close, occasioned by the defendant's digging a coal-pit about three-quarters of a mile off, — the well having been constructed for twenty years, and used for working a cotton-mill, — Chief Justice Tindal, after stating that the rule which governs the case of streams running in their natural courses either assumes for its foundaltion the implied assent and agreement of the proprietors of the different lands, or may be considered as a rule of positive law, concludes there could be no ground for inferring any mutual consent or agree- ment for ages past between the owners of the several lands beneath which underground springs exist, and, consequently, no trace of positive law could be inferred from long-coutinued acquiescence ; and that, therefore, the case did not fall within the rule which obtains, as to surface streams, but rather within that principle which gives to the owner of the soil all that lies beneath its surface, — the damage occasioned to an- other by the exercise of such a right being considered absque injuria? And in Maine it was held that one who digs a well 1 BaU V. Herbert, 3 T. R. 253; Kex v. Tippett, 3 B. & A. 193. Per- sons navigating public waters may use docks erected upon them, without the owner's express permission. Therefore the o-wner of a dock cannot terminate the occupancy by setting the vessel adrift so as to endanger its safety, until after request to remove, and neglect to do so in reasonable time. Heeney v. Heeney, 2 Den. 625. 2 Acton V. Blundell, 12 M. & W. 324. The principle of this case is cited with approbation by Chief Justice Bronson, in giving the opinion of the court in Kadclifi v. Mayor, 4 N. Y. 200; and its doctrine has since SEC. VI.] OP EASEMENTS. 277 on his own land, in good faith, to obtain water for domestic use, is not liable for a consequent diversion of unknown sub- terranean currents from the spring of an adjoining owner. The maxim cujus est solum, and not sic utere tuo, being ap- plicable to such a case.^ (e.) Removal of Adjoining Building, § 231. With ordinary Care, O-wner not liable for Injury to Abuttors. — In general a man may use his land for any pur- pose to which it is adapted, without being accountable to any person therefor, if he uses ordinary care and skill to avoid injury to his neighbor .2 And if, whether landlord or tenant, he finds it necessary to pull down a house, and gives due no- tice to the owner of the adjoining building of his intention, as well as of the time he proposes to commence work, he is not answerable for any injury its owner may sustain by the opera- tion, provided always that he removes his own with reasona- ble and ordinary care.^ The owner of the premises adjoining been followed in Ellis v. Duncan, 29 N. Y. 466. See also Delhi v. Youmans, 45 id. 362. In a case where mines were excepted out of a demise of the surface land, it has been held in England that the rights of the respective proprietors of the surface and of the mines did not differ in any way from those of the owners of adjoining closes, who are strangers in title, each of whom is entitled to the water found upon his land, but neither of whom is entitled to complain of that water by natural percola- tion set in motion by his neighbor's excavations ; for it made no difference whether the respective closes are adjacent vertically or laterally, and the grant of the surface could not carry with it more than the ownership of the entire soU would have done. Ballacoskish Silv. Co. v. Dumbell, 29 L. T. N. 8. 658. The rule that a mine-owner must protect himself against water flowing from a neighboring mine, in the ordinary course of mining operations, has no application to a case where the consequence of a man's mining operations is the tapping of a river bed, and the pre- cipitating of the water of the river into his own mine, and thence into that of his neighbor; and an injunction was allowed to stop such extra- ordinary operations in Crompton v. Lea, 31 L. T. n. s. 469, per V. C. Hall. And see Waffle v. N. Y. Cent. R. K. Co., 53 N. Y. 11. 1 Chase v. Silverstone, 62 Me. 175. ^ RadclifEe v. Brooklyn, 4 N. Y. 195; Panton v. Holland, supra. * Thurston v. Hancock, 12 Mass. 220 ; Panton v. Holland, 17 Johns. 92 ; Peyton v. Mayor, 9 B. & C. 725; Massey v. Goyder, 4 C. & P. 161. The 278 EIGHTS AND LIABILITIES, ETC. [CHAP. VI. those pulled down must, after receiving notice, shore up his own building, and do every thing proper to be done for its preservation ; and if he neglects to take such precaution, he is without remedy for any injury it may sustain, unless it clearly appears, that the pulling-down by the other party was done in so wasteful, negligent, or improvident a manner, as to occasion greater risk than, in the ordinary course of doing the work, ought to have been incurred.^ § 232. Question of Fact whether due Care is Ezercised. — Whether due caution has been used in the removal is, in every case, a question of fact for a jury, depending upon its own peculiar circumstances. In a recent case, where the action was brought for digging the foundation of an intended building, on a piece of land next adjoining the house of the plaintiff, so carelessly that the walls and foundations of the plaintiff's house gave way and sank, it appeared on the trial that the defendants excavated their own ground about six feet deep, and came within about four feet from the plaintiff's house. After the excavation, the plaintiff's gable wall bulged, and the defendants made an ineffectual attempt to shore it up ; but it gave way in all directions, and it became necessary to rebuild. The case was held to turn upon the question, whether the fall of the wall was occasioned by the defendants' negligence, or by its own infirmity ; and that, in inquiring whether the injury was owing to the neglect of the defendants, the state of the premises must be taken into consideration by the jury, that if the wall was so infirm as to be unable to sus- tain itself six months longer, still the defendants had no right provision of the laws of New York of 1855, that when a person excavat- ing, &c., on his lot, in the city of New York, is given a license by the adjoining owners to enter on their land to protect their buildings from injury by the excavation, he must so protect them, — does not impose any duty upon a landlord, as towards his tenant, to secure protection for the tenement by giving such license. Sherwood v. Seaman, 2 Bosw. 127. See Laws of New York of 1855, 11, c. 6, as to how party and other walls in New York and Brooklyn are to be supported during excavations. 1 Walters v. Pfeil, Mood. & M. 364; per Ld. Tenterden, in Massey v. Goyder, supra; Wyatt v. Harrison, 3 B. & Ad. 871; Dodd v. Holme, 1 Ad. & E. 493. SEC. VI.] OF BASEMENTS. 279 to accelerate its fall, and that such a state of the wall would render more care necessary on the part of the defendants not to hasten its dissolution.^ So, in an action on the case, for negligently and carelessly excavating the defendant's own land, and thereby withdrawing the support from the plain- tiff's house, which the declaration alleged it was entitled to, it appeared that, for about twenty-six years, the plaintiff had rested his house upon a wall belonging to the defendant, by permission originally from the defendant, and that, by exca- vating too near his wall, the defendant had caused it to sink, and thereby injured the plaintiff's house, which rested against it ; upon a special verdict of the jury, that the excavation was made in a careless and unskilful manner, the court sustained the action.^ (f.) Bight to Sv^portfrom Neighboring Soil and Buildings. § 233. Attaches to Land but not to Buildings thereon, unless ancient. — Neither is a proprietor of land at liberty to dig and mine at pleasure on his own soil, without considering what effect such excavations must produce upon the land of his neighbor, since the withdrawal of the lateral support would, in many cases, cause the falling-in of the adjoining land ; and the violation of this right of support, which is an easement necessarily attached to the soil, will not only be compensated by an action for damages, but may also be restrained by in- 1 Dodd V. Holme, supra; Pierce o. Musson, 17 La. 389. In Trower v. Chadwick, 3 Bing. 334, it was held to be a good gronnd of action, that the defendant conducted himself so negligently and unskilfully in pulling down his own wall, as by reason thereof to injure his neighbors. As to liability for negligence, see ante, § 199, and note. " Brown v. Windsor, 1 Cr. & J. 20; and see Haines v. Roberts, 7 Ellis & B. 625. Where the defendant permitted another person to remove earth from a hill on defendant's land, and it was so negligently done that earth slid from the hill upon plaintiff's land, the defendant was held liable for the injury, upon the general principle that he was bound to control the use of his own premises so asTiot to produce injury to others. Mayor v. Bailey, 2 Den. 445. It is to be intended that the owner has control over those who work upon his premises; and he cannot discharge himself from that intendment of law by any act or contract of his own. Gardner v. Heartt, 1 id. 466. 280 EIGHTS AND LIABILITIES, ETC. [CHAP. VI. junction.^ A man may excavate a canal, or dig on his own land, but not so near that of his neighbor as to cause the land of the latter to fall into his pit, thus transferring a portion of another man's land to his own.^ He may excavate and move his own soil, for a lawful purpose, but must not thereby re- move the natural support of his neighbor's land, so that it cannot stand by its own coherence. For if it subsides and falls into the pit made by his excavations, disturbing his neighbor in the enjoyment and possession of his property, and causing him damage, the law will hold the wrong-doer responsible for the consequences, provided his neighbor has done nothing on his own land, which contributed to produce the injury, or in hostility to the legitimate and proper exercise of the other's paramount right to improve his own premises.^ But if any thing has been done to increase the lateral pressure, as where a building has been erected, he has no right to the increased support necessary to sustain' such a building, unless it is of ancient erection.* If his house has stood twenty years with- out adverse claims, it has acquired the rights of an ancient house, by prescription ; and though without negligence on the part of the excavator, it cannot then be lawfully disturbed by 1 Farrand v. Marshall, 21 Barb. 409 ; s. c. 19 id. 380 ; Rowbotham v. Wilson, 8 Ellis & B. 123. ^ Roll. Abr. Trespass, I. pi. 1. In estimating the damages sustained by a tenant for years, whose possession has been injured by a wrongful excavation on the adjoining premises, the jury will take into account the expense necessary to restore the building to such a state as would make the possession as beneficial to the tenant as it was before the trespass was committed; but the allowance must not exceed the value of the plaintiff's term, taking into view the rent reserved. Walter v. Post, 6 Duer, 363 ; and see Gourdier v. Cormack, supra. ' A court of equity has power to restrain a land-owner from excavating or removing soil from his land, adjoining the land of another, if the effect of such excavation and removal will be to cause the land of his neighbor, by reason of the withdrawal of its natural support, to fall away or subside. Per Wright, J., in Farrand v. Marshall, supra. * Lord Tenterden, in Wyatt «. Harrison, 3 B. & Ad. 875. In the city of New York, the foundation of every building must be not less than ten feet below the street, or sidewalk directly in front of it ; and if not, the owner will not be entitled to recover damages, by the erection, with ordi- nary care, of an adjoining building. Laws of New York, 10 April, 1818. SEC. VI.] OF BASEMENTS. , 281 deep excavations, or other improvements on adjoining lots. But, otherwise, a person may make reasonable improvements and excavations on his own ground, though they should injure or endanger an edifice on the adjoining land, by digging near and deeper than its foundations ; provided he exercises ordinary care and skill, and provided further that the injured party does not possess any special privileges which protect him from the consequences of such improvements, either by prescription or by grant.1 And in a case where a man had built to the ex- tremity of his soil, and enjoyed the building above twenty years, Lord Ellenborough held, upon analogy to the rule as to light and air, that he had acquired a right to support, or, as it were, of leaning to his neighbor's soil, so that his neighbor could not dig so near as to remove the support ; but that it was otherwise of a house newly built.^ § 234. Ancient Erections, 'vrhen not entitled to Support. — But a house will not have the privilege of support as an an- cient erection, if it appears to have been built upon ground previously excavated. In a recent case the plaintiff was pos- sessed of two houses, one an ancient house, and the other built within twenty years, upon his own land, and considerably within his own boundary ; and the defendants excavated so near their boundary as to cause damage to the plaintiff's buildings, one of which stood upon groimd which had been previously excavated. The court held, that if a man builds his house at the extremity of his land, he does not thereby acquire any right of easement for support, or otherwise, upon 1 Lasala v. Holbrook, 4 Paige, 169; Kichart v. Scott, 7 Watts, 460; Thurston v. Hancock, 12 Mass. 220 ; Story v. Oden, ib. 157. 2 Callendar v. Marsh, 1 Pick. 434; Stansell v. Tollard, 1 Selw. N. P. 444; Wyatt v. Harrison, supra. And where one of two buildings having a party-wall common to both becomes so dilapidated as to be unsafe and unfit for occupation, and the owner, after giving reasonable notice of his intention to the tenant of the adjoining building, proceeds to take down the whole wall for the purpose of rebuilding it, he is not responsible to the tenant of the adjoining building for any damages resulting from its exposure to weather or other causes, if he consumes no unnecessary time in completing the work, and uses proper care and skill in its execution. Partridge v. Gilbert, 15 N. Y. 601. 282 EIGHTS AND LIABILITIES, ETC. [CHAP. VI. the land of his neighbor ; that he has no right to load his own soil so as to make it require the support of that of his neigh- bor, unless he has some grant to that effect ; and that if the land, on which the plaintiff's house was built had not been previously excavated, the defendants might, without injury to the plaintiff, have excavated to the extremity of their land. It was further held that if the plaintiff had not built his house on excavated ground, the mere sinking of the ground would have been without injury ; that he had, by building on ground insufficiently supported, caused the injury to himself without the defendant's fault ; unless, at the time, by some grant, he was entitled to additional support from the land of the defend- ants. That there were no circumstances in the case from which to infer any such grant ; as to the new house, because it had not stood twenty years, nor, as to the old house, because, though erected more than twenty years since, it did not appear that the earth under it might not have been excavated within twenty years. And that no grant could, at all events, be in- ferred, nor could the right to any easement become absolute, until after the lapse of at least twenty years from the time when the house first stood on excavated ground, and was supported in part by the defendant's land.^ § 235. Dominant Estate to be kept in Repair. — There is also a condition imposed upon the party entitled to support, that he shall do nothing to increase the burden imposed upon his neighbor, by neglecting to keep his premises in sufficient repair. When the owner of a lot builds upon it, he builds at his own peril ; and cannot, although building upon his own ground, deprive any other party of the use of his, in such manner as he or they shall deem most advantageous.^ If, 1 Partridge v. Scott, 3 M. & W. 220. In all that class of cases where the mode of enjoyment is turned into an absolute rjght by custom, grant, or prescription, the party is entitled to protection against any alteration of the adjacent premises, by which he may in any way be injured. Per Gardner, J., in Hay v. Cohoes Co., 2 N. Y. 159. ^ Thurston v. Hancock, 12 Mass. 221. But the right to the support of the land immediately around a house is not in the nature of an easement, but is the ordinary right to the enjoyment of property; and till that is interfered with, the party has no legal ground of complaint, although in SEC. VI.] OF EASEMENTS. 283 in making an excavation, the adjoining building falls in con- sequence of its infirm condition, even if, in the ordinary progress of decay, it would have fallen in a short time, the neighbor had still no right to accelerate its fall, by carelessly removing its support ; and a plaintiff may recover in propor- tion to the loss actually sustained, when it is proved that the injury to the house was the consequence of the defendant's negligence.^ In an action against an adjoining owner for carelessly digging too near the division wall, while deepening his own cellar, it was held that the plaintiff was entitled to recover such damages as would be sufficient to reinstate the wall and the house in as good condition as they were prior to the injury, and also to compensate him for. the loss conse- quent upon the interruption of his business.^ § 236. Servient Estate, User of subject to the Easement. — Where a party is entitled to support from his neighbor's building, the premises can only be used in subjection to such easement. And it will be an invasion of that right if he does any injury to his neighbor's building in the pulling down of his own, although done with ever so much care. The same principle applies to land, for where there was a graiit of the minerals under the land, and the defendant removed them in such a manner as to cause the surface of the earth to fall in, it was held to be a violation of the right of support, which the plaintiff was entitled to, however done.^ For wherever the surface of land and the minerals under it belong to different proprietors, the owner of the surface is primd fade entitled to support from the subjacent strata, and the owner of the min- erals in working them is bound to leave sufficient support for the surface in its natural state.* A liberty to hang out linen fact something may have been done which has occasioned results that will afterwards afEect his property. Backhouse v. Bonomi, 9 H. L. Cas. 503. 1 Per Taunton, J., in Dodd v. Holme, 1 Ad. & E. 506. In determining the question of negligence, the jury ought to consider the state of the plaintiff's house. lb. ^ Brown v. Werner, 40 Md. 15. » Trower v. Chadwick, 3 Bing. N. C. 334. * Smart v. Morton, 5 Ellis & B. 30; Humphries ». Brogden, 15 Q. B. 739; Wilms v. Jess, 94 lU, 464; Yandes v. Wright, 66 Ind. 319. Under 284 EIGHTS AND LIABILITIES, ETC. [CHAP. VI to dry, on lines passing over the soil of another, is an ease- ment which is recognized in the books. But as the plaintiff, in the case referred to, claimed a liberty for himself and the other tenants to hang linen as often as they had occasion to do so, at their free will and pleasure, and the jury found that he had liberty to dry the linen of his own family only, he was nonsuited.^ (g.) Sow an basement may he Created or Extinguished. § 237. Arises from Agreement. - — Adverse Possession. — The origin of every easement in the land of another is to be re- ferred to some agreement, express or implied. It can only be created by a grant or by prescription which supposes a grant ; and uninterrupted possession for twenty years is held to be sufficient evidence from which a juiy may presume a grant.2 But in order that its enjoyment may be conclusive of the right, it must have been adverse, that is, under a claim of title injurious to the rights of the owner of the land, yet with his knowledge and acquiescence, and uninterrupted. The burden of proving this is on the party claiming, and if he leaves it doubtful in these particulars, it is not conclusive in his favor.2 A mere license is not sufficient for the purpose of a lease of mineral coal, with right to mine and remove the same, the les- see is not entitled to remove the whole of the coal without leaving suffi- cient support to maintain the surface in its natural state, unless the lease clearly implies that ho is to have such right. Davis v. Treharue, 6 H. L. App. Cas. 460; Burgner v, Humphrey, 41 Ohio St. 340. 1 Drewell v. Towler, 3 B. & Ad. 73.5. ^ Lasala v. Holbrook, 4 Paige, 169; Angell on Watercourses, 77; Townsend v. McDonald, 12 N". Y. 381. Easement created by reservation or grant, may be enlarged by prescription. Atkins v. Boardman, 20 Pick. 302. Continuous adverse use of a way across another's land for twenty years may be established without direct evidence of its actual use during each year. Bodfish v. Bodfish, 105 Mass. 317. 8 Sargent v. Ballard, 9 Pick. 251; Borden v. Vincent, 24 id. 301; Powell V. Bagg, 8 Gray, 443. The doctrine of continuity of possession required by the common law, as cited by Lord Coke from Bracton, has been adopted in Massachusetts. The possession must be long, continuous, and peaceable: long, that is, during the time required by law; contin- uous, that is, uninterrupted by any lawful impediment; and peaceful, SEC. VI.] OP EASEMENTS. 285 creating an easement, for a license is revocable, nor can an easement grow out of a mere permissive enjoyment for any length of time.^ And where a man, for a valuable considera- tion, gives another the liberty to cut a drain, mine coal, or the like, on his premises, although it conveys no interest in the land itself, yet gives a claim to a freehold right, and cannot therefore be created vrithout a deed.^ So the right of perma- nently occupying one's own land in such a manner as to deprive the adjoining owner of an easement, cannot be ac- quired by a parol license, — such license being revocable, even after it has been executed.^ § 237 a. License defined. — Hov7 to be exercised. — Revoca- tion of. — A license is an authority to do some act or a series of acts on the land of another, without passing an estate in the land. It does not therefore trench upon that policy of the law which requires bargains respecting real estate to be in writing, and in general it amounts to nothing more than an excuse for an act which would otherwise be a trespass.* Of this character are permissions to remove a building, to cut because if it be contentious, and the opposition be on good gsounds, the party will be in the same condition as at the beginning of his enjoyment. There must be longus usus, nee per vim, nee clam, nee preeario. Co. Lit. 113, b; Bracton, fo. 51, 52; Thomas v. Marshfield, 13 Pick. 238. And see Sumner v. Tileston, 7 id. 198, Whether the possession was adverse or not is a question for the jury, under instructions from the court. Putnam v. Banker, 11 Cush. 542. 1 Baker v. Boston, 12 Pick. 184; Hill v. Hill, 113 Mass. 103, 107. Per- mission to pass and repass over a man's land, granted without considera- tion, does not prevent him from shutting up the fence at any time so that the grantee cannot pass. Dexter v. Hazen, 10 Johns. 246. 2 Cook ». Stearns, 11 Mass. 583; Thompson v. Gregory, 4 Johns. 81; Harlan v. Lehigh Coal Co., 35 Pa. St. 287; Hays v. Richardson, 1 Gill & J. 366. ' Miller v. Aub. & S. K. R., 6 Hill, 61; Owen v. Field, 12 Allen, 457. * Jackson v. Babcock, 4 Johns. 418; Prince v. Case, 10 Conn. 375; Mumford v. Whitney, 15 Wend. 380; Jamison v. Milleman, 3 Duer, 255. A license passes no interest, nor alters or transfers property in anything, but only makes an action lawful which without it would have been unlawful. Per Vaughan, C. J., in Thomas v. Sorrell, Vaughan, 351 ; Owens V. Lewis, 46 Ind. 489. 286 BIGHTS AND LIABILITIES, ETC. [CHAP. VI. wood, to draw water, or to take gravel for road-making.* Being a mere personal privilege, it can only be enjoyed by the licensee himself, and is not therefore assignable so that an under-tenant can claim privileges conceded to a lessee.^ It must be exercised within a reasonable time, as in case of a license to cut and carry away wood, since it applies to wood in substantially the state of growth in which it was when the license was given.^ It is revocable so long as it remains executory, unless a definite term has been fixed for its con- tinuance, or the licensee has expended money on the faith of it, and is in the enjoyment of privileges connected therewith/ A sale and conveyance of the land by the owner produces a revocation by mere operation of law.^ But when executed, and the licensee has entered upon the land, and done that which he was authorized to do, it becomes irrevocable.^ And this is equally so against a grantee from the owner.'' And it is always a justification for acts done under it, while unre- voked ; and the defendant may give it in evidence, to defeat 1 A privilege to the tenant of one room to put signs on the outer wall is a license only, and not an easement or exclusive right. Pevey v. Skin- ner, 116 Mass. 129. But Riddle v. Littlefield, 53 N. H. .503, is aliter. And see Rathbone v. McConnell, 21 N. Y. 466; Pierrpont v. Bernard, 6 id. 279; Dubois v. Kelly, 10 Barb. 496; Syren v. Blakeman, 22 id. 336. The permit includes everything necessarily incident to its exercise. Clark u.Vt. R. R.,28Vt. 103. * Dark V. Johnson, 55 Pa. St. 144. 8 Gilmore v. Wilbur, 12 Pick. 120. * Collins !>. Marcy, 25 Conn. 239; Resick v. Kern, 4 S. & R. 267; Houston V. Laffee, 46 N. H. 505; Fuhr v. Dean, 26 Mo. 116; Hetfield V. Cent. R. R., 5 Dutch. 57; Wilson v. Chalfont, 15 Ohio, 248; Lacy V. Arnett, 33 Pa. St. 159. Where the term is fixed and the licensee has made improvements not severable from the freehold, he is held to have such right and interest as tenant at will as to entitle hira to notice to quit, and to be entitled to compensation for his improvements. Fuhr v. Dean, supra; Allen v. Mansfield, 82 Mo. 688. 5 Carter v. Harlan, 6 Md. 20; Cook v. Steams, supra; Wallis v. Harrison, 4 M. & W. 543. 8 Wilson V. Chalfont; Lacy v. Arnett; Cook u. Steaxns, supra ; Boone V. Stover, 66 Mo. 430. ' Dubois V. Kelly, supra; Carter v. Harlan, 6 Md. 20; Eggleston v. N. Y. & Cent. R. R., 35 Barb. 162. Trespass will lie against the owner of the land if he destroys the licensed structure. Dubois v. Kelly, supra. SEC. VI.J OF EASEMENTS. 287 the plaintiff's claim for damages sustained before notice of revocation has b^en given.^ § 238. Assignment of Easements. — Follow the Estate. — Easements, like other incorporeal rights, can only be assigned by an instrument under seal ; but a paper writing, or even a parol declaration, may always be made use of as evidence to show the character of an act done, or a cessation of enjoy- ment.2 Being rights attached to the estate, and not to the person of the owner of the dominant tenement, easements follow the estate into the hands of an assignee or lessee. An easement established by prescription or inferred from user is limited to the actual user.^ They are also a charge upon the servient tenement, and follow it into the hands of any person to whom such tenement, or any part thereof, is sub- sequently conveyed. As the right is annexed to the estate for the benefit of which the easement or servitude is created, it will not be destroyed by a division of the estate to which it is appurtenant. The assignee of any portion of the estate may claim the right so far as it is applicable to his part of the property ; provided the right can be enjoyed as to separate parcels, without any additional charge or burden to the pro- prietor of the servient tenement.* § 239. How extinguished. — A mere change in the mode of enjoyment will not destroy an easement, unless a greater burden is thereby thrown upon the servient tenement ; nor J Miller v. Aub. & S. R. R., supra; Marston v. Gale, 24 N. H. 176; Potter V. Mercer, 53 Cal. 667. 2 Co. Lit. 264, b; Com. Dig. Release (A. I.) (B. I.). An easement in real estate, whether acquired by grant or prescription, may be extin- guished or modified by a parol license, granted by the owner of the domi- nant tenement, and executed by the owner' of the servient tenement. Cartwright v. Maplesden, 53 N. Y. 622. And a parol license, which if given by deed would create an easement, is revocable, although executed by the licensee. Per Metcalf, J., in Morse v. Copeland, 2 Gray, 302. ' Brooks V. Curtis, 4 Lans. 283. A right to fish, fowl, and hunt, and to go over the meadows, does not confer the right to take seaweed off the land. Parsons v. Miller, 15 Wend. 561. * Hills V. Miller, 3 Paige, 254. 288 EIGHTS AND LIABILITIES, ETC. [CHAP. VI. will the pulling-down of a house, for the purpose of repair, cause the loss of any easement attached to it, provided there is evidence of an intention to rebuild it within a reasonable time.i But it may be extinguished by a renunciation of the party, either express or implied, or by permitting the party from whom the servitude is due to build on the property such worts as justify the presumption of an abandonment of the right.^ And all easements whether of convenience or neces- sity are extinguished by unity of possession ; but, upon any subsequent severance, easements which, previous to such unity, were easements of necessity, are granted anew, in the same manner as any other easement which would be held by law to pass as incident to the grant unless acquired by deed.^ They may be lost by lion-user, unless an intention of resum- ing the right within a reasonable time is shown to have been manifested at the time when it ceased to be used.* In a recent case, it appeared that the plaintiff, having some ancient windows, pulled down the wall in which they were situated, and rebuilt it on the wall of a stable, without any window. About fourteen years after this, the defendant erected a building in front of this blank wall, and, after the building 1 Hall V. Swift, 4 Bing. (N. C.) 381. Luttrell's Case, 4 Co. 86; Pope v. Devereux, 5 Gray, 409. Where a house which by long user had become entitled to have the rain-water shed from its eaves upon the adjoining land was upon rebuilding carried a little higher than before, it was held that, in the absence of any evidence that a greater burden was thrown on the servient tenement by the alteration, the easement was not thereby destroyed, but that the premises were still entitled to the same right of eavesdrop. Harvey v. Walters, L. K. 8 C. P. 162. 2 Taylor v. Hampton, 4 McCord, 96. ' Grant v. Chase, 17 Mass. 443. * Corning v. Gould, 16 Wend. 531. The doctrine of extinction by dis- use does not apply to servitudes on easements which have been created by deed. Smiles v. Hastings, 24 Barb. 44. In such case there must not only be a disuse by the owner of the land dominant, but an actual ad- verse user by the owner of the land servient. Angell on Waterc. 269 ; Arnold v. Stevens, 21 Pick. 106; White v. Crawford, 10 Mass. 189. Al- though the use must have been uninterrupted in order to confer title, it need not have been necessarily unintermittent; it is enough that the user is of such a nature and at such intervals as gives the owner an intimation that the right is claimed against him. Pollard v. Barnes, 2 Cush. 197. SEC. VI.] OF EASEMENTS. 289 had remained there about three years, the plaintiff re-opened the window in the same place that one of the ancient windows had formerly occupied, and brought his action for the obstruc- tion to his newly-opened window by the defendant's building, but he was not permitted to recover. Mr. Justice Abb6tt, in delivering the judgment of the court, said, if a person entitled to ancient lights pulls down his house, and erects a blank wall in the place of a wall in which there had been windows, and suffers that blank wall to remain for any considerable period of time, it lies upon him at least to show, that at the time when he erected the blank wall, and thus apparently abandoned the windows which gave light and air to the house, there was not a perpetual but a mere temporary abandonment thereof, and that he intended to resume the enjoyment of those advantages within a reasonable time. And the other justices concurred that the right to such an easement is acquired by enjoyment, continuing so long as the party either continues that enjoyment or shows an intention to continue it; and that the ceasing to enjoy it destroys the right, unless, at the time when the party discontinues the enjoyment, he does some act to show that he means to resume it within a reasonable time.^ In a recent case, however, in 1 Moore v. Rawson, 3 B. & C. 332; Manning v. Smith, 6 Conn. 289; Pritchard v. Atkinson, 4 N. H. 1. But where the right to have windows opening on a yard attached to but not part of the demised premises passed by the lease, it was held that closing a doorway which led into the yard was no abandonment of the right to have the windows unobstructed. Doyle V. Lord, 64 N. T. 432. The case in the text has been adopted, rather for the sake of illustrating a principle applicable to the extinguish- ment of easements in general than to lights in particular. In fact, the old English doctrine on the subject of • light and air, Aldred's Case, 9 Co. 58, is said to be an anomaly in the law, and has not been generally adopted in the United States. Myers v. Gemmel, 10 Barb. 537; Keiperu. Klein, 51 Ind. 316; Parker v. Foote, 19 Wend. 309; Banks v. Am. Tr. Soc, 4 Sandf . Ch. 465 ; Mullen v. Strieker, 19 Ohio, 135. It cannot well be ap- plied in the growing cities and villages of this country, without producing mischievous consequences in many cases; and, indeed, seems never to have been sanctioned in Westminster Hall until 1786, in the case of Darwin v. Upton, 2 Wms. Saund. 175, n., which was said to be a depart- ure from the old law. Bury v. Pope, Cro. El. 118; Hoy v. Sterret, 2 Watts, 331. The case of City Brew. Co. v. Tennant, L. R. 9 Ch. 212, VOL I. — 19 290 EIGHTS AND LIABILITIES, ETC. [CHAP. VI. the state of New York, it was held that one omission by the owner, during twenty years, to make use of water-rights, does not impair his title, or confer any right thereto upon another ; and that it is not the non-user by the owner, but the adverse enjoyment by another during twenty years, which destroys his right.^ § 240. Extinguishment of, by Abandonment or Non-user. — In another case, Tindal, C. J., said, suppose a person who for- merly had a mill upon a stream should pull it down and remove the works, with no intention to return, could it be held that the owner of other land adjoining the stream might not erect a mill and employ the water so relinquished, or that he should be compelled to pull down his mill, if the former mill-owner should afterwards change his determination, and wish to rebuild his own ? In such a case it would undoubtedly be a subject of inquiry for a jury, whether he had completely abandoned the use of the stream, or left it for a temporary purpose only .2 And where an ancient window had been filled up with brick and mortar for twenty years, Lord Ellenborough defines the modem English doctrine thus: "The right of an owner of ancient lights is to prevent his neighbor from obstructing the access of sufficient light and air, to such an extent as to render his house substan- tially less comfortable and enjoyable." In Illinois, the English doctrine seems to have been adopted. Gerber r. Geabel, 16 111. 217. And, in New Jersey, the Chancellor prevented by injunction the obstruction of light enjoyed for twenty-one years. Robeson v. Pittenger, 1 Green, Ch. 57. In South Carolina, it was in one case held to be a reasonable right, contributing to the comfort and value of a person's habitation. McCready V. Thomson, 1 Dudl. 131. But the law is now otherwise in that State. Napier v. Dulwinkle, 5 Rich. 311. So in Ohio. Mullen v. Strieker, 19 Ohio St. 135. And in Massachusetts, although the question was for some time left open, — see Story v. Odin, 12 Mass. 157; Atkins v. Board- man, 2 Met. 475; Same v. Chilsom, 7 id. 398 ; Fifty Assoc, v. Tudor, 6 Gray, 261, — it is now settled that no such easement can be acquired by prescription by common law. Rogers v. Sawin, 10 Gray, 376 ; Carrig v. Dee, 14 id. 583; Richardson v. Pond, 15 id. 387; Keats v. Hugo, 115 Mass. 209; or by statute: Pub. Sts. c. 122, § 1. 1 Townsend v. McDonald, 12 N. Y. 381. " Liggins V. Inge,7 Bing. 693; Martin v. Goble, 1 Camp. 320; Garritt V. Sharp, 3 Ad. & E. 325. SEC. VI.] OF EASEMENTS. 291 held that the case stood as if the window had never existed.^ It may be observed here, also, that the doctrine of extinguish- ment by disuse does not apply to easements created by deed. To become extinguished by disuse, an easement must have been acquired by use ; in the latter case, mere disuse for a sufficient length of time will work an extinguishment, but if founded on a grant, then there must not only be a disuse by the owner of the dominant land, but there must be an actual adverse user by the owner of the servient land.^ § 241. Estingiiishment of, by Operation of Iiaw. — The en- croachment by one party upon a way held in common with another, by building part of the wall of a house upon a por- tion of it, and enclosing another portion within a fence, works an extinguishment of the way by operation of law, especially where the other party sells his interest after such acts done, and the purchaser on his part acquiesces in and confirms what has been done. The acts relied on to show an extin- guishment must be such as clearly indicate an intention to abandon the right to the easement or servitude ; and where there are no circumstances intimating the suspension to be temporary only, a bond fide purchaser will be protected in the enjoyment of the property, as it appeared at the time of the purchase. Where the case is questionable, the usual course is to leave it to the jury to say whether they will presume a grant; but where the fact of adverse possession is beyond dispute, the law itself raises the presumption.^ 1 Lawrence v. Obee, 3 Camp. 514; Curtis v. Jackson, 13 Mass. 507; Blanchard v. Bridges, 4 Ad. & E. 176. 2 Jewett I'. Jewett, 16 Barb. 150; White v. Crawford, 10 Mass. 183; Arnold v. Stevens, 24 Pick. 106; Srayles v. Hastings, 22 N. Y. 217. ' Corning v. Gould, 16 Wend. 531. Abandonment is a simple non- user of an easement; and, in order to make out an effectual answer to the claim upon that ground, I find it perfectly well settled that the enioyment, nay, all acts of enjoyment, must have totally ceased for the same length of time that was necessary to create the original presumption. The non- user for twenty years affords a presumption, either that the former pre- sumptive right was extinguished in favor of some other adverse right, or if none such appears, that it has been surrendered if it ever existed. A mere non-user is suiEcient to produce this effect, without showing the erection, or permission to erect, a permanent obstruction. Per Cowen, J. 292 EIGHTS AND LIABILITIES, ETC. [CHAP. VI. § 242. By Act of Owner of Dominant Estate. — If the act which prevents the servitude is the act of the party having the dominant tenement, it will effect an extinguishment of the right. But if it is prevented by the act of God, or by the operation of law, it will only cause a suspension of it; for the act of a party will be construed most strongly against himself, but he shall not be injured by an act of God or the law. So it may be extinguished by an obstruction of a per- manent nature, interposed by the party himself to whom the service is due, or by his consent, or by the voluntary acquisi- tion or acceptance of any other right or privilege incompatible with the "exercise of it.^ A right of way is not lost by non- user for less than twenty years ; ^ nor can a mill privilege be considered as extinguished or abandoned by disuse, until such disuse has continued entire and complete for twenty years.^ But twenty-one years' occupation of land, adversely to a right of way, will bar the right.* § 243. How Acqtiired by Prescription. — The exclusive en- joyment of an easement for twenty years without interrup- tion, as we have seen, raises a presumption of title in favor of the occupant, entitling him to claim by prescription. But as prescription is founded on the supposition of a grant, the use or possession on which it is based must be clearly adverse to the claim of some other person, or of a nature indicating that it is claimed as a right, and not the effect of indulgence, or of any compact short of a grant.^ According to the English law, a prescription must always be laid in him that is tenant of the fee. And a tenant for life, for years, or at will, cannot prescribe; for as prescription, by that law, is usage beyond 1 Taylor v. Hampton, 4 McCord, 96; Hall v. Swift, 6 Scott, 167. 2 Emerson v. Wiley, 10 Pick. 310; Holmes v. Buckley, 1 Eq. Cas. Abr. 27. 8 Hurd II. Curtis, 7 Met. 94. * Yeakle v. Nace, 2 Whart. 123; Moore ». Browne, Dyer, 319, b. pi. 17. 5 Gayetty v. Bethune, 14 Mass. 53; Lawton v. Rivers, 2 McCord, 445; Thacher v. Cobb, 5 Pick. 425; 2 Bl. Com. 265; Parker v. Foote, 19 Wend. 309. It is said, however, that as respects a public navigable river, twenty years' possession of the water at a given level is not conclusive as to this right. Vooght V. Winch, 2 B. & A. 662. SEC. VI.] OF BASEMENTS. 293 the time of memory, it is absurd that he should pretend to prescribe whose estate commenced within the remembrance of man ; such tenants, therefore, must prescribe under cover of the tenant in fee-simple.^ In New York, Massachusetts, and other States, an easement is acquired by twenty years' uninterrupted possession. In Connecticut and Vermont, by fifteen years' possession ; ^ and in South Carolina it is said to be thirty years.^ But it has been held not to exist at all in New Jersey * or in Pennsylvania.^ And, in Virginia, twenty- seven years' possession has been held to be an insufficient ground for presuming a grant.® 1 2 BL Com. 265. 2 Manning i). Smith, 6 Conn. 289; Mitchell v. Walker, 2 Aik. 266. ' Lawton v. Rivers, 2 McCord, 445. * Ackerman v. Shelp, 3 Halst. 125. 6 Young V. Collins, 2 Browne, 293. » Boiling V. Mayor, 3 Band. 563. 294 COVENANTS AND CONDITIONS. [CHAP. Vn. CHAPTER VII. OF COVENANTS AND CONDITIONS. § 244. Create respective Rights and Liabilities. — A large pro- portion of the rights and liabilities of both landlord and tenant arises out of the covenants with which the parties usually define their obligations to each other. Some of these covenants are incident to the relation subsisting between them, and are obligatory independently of positive stipula- tion, while others are the subject of express contract and are only obligatory when inserted in the lease. Such rights may also be qualified or limited by a condition annexed to the estate at the time of its inception, which may either operate as a covenant, or terminate the estate according to circumstances.^ SECTION I. OF COVENANTS. § 245. Defined. — Created by Deed. — Tenant's Estoppel. — A covenant is usually defined to be an agreement between two or more persons, by an instrument under seal, to do or not to do some particular thing. It can only be created by deed, but it may be by a deed-poll, the party being named in- the deed,2 as well as by indenture? In general where lands are * A breach of the covenants contained in a lease does not, in the ab- sence of a stipulation to that effect, wort a forfeiture of the term. Vanatta V. Brewer, 32 N". J. Eq. 26. 2 Green v. Home, 1 Salk. 197; Eandel v. Ches. & D. Canal Co., 1 Harringt. 151, 233. 8 1 Roll. Abr. 517; Day v. Brown, 2 Ham. 345; Co. Lit. 230, b. An instrument executed by two, to which but one seal is affixed, is the cove- nant of both. Van Alstyne v. Van Slyck, 10 Barb. 383. SEC. I.] OP COVENANTS. 295 conveyed by indenture to a person who does not seal the deed, but enters upon the land, and accepts the deed in other mat- ters, he will be estopped from denying the CQvenants therein contained which are to be performed by him, and a court of equity will restrain him from violating them.^ But with respect to the express covenants of a lease, they are only to be performed by the lessee when he has signed the instrument of demise. And where a lease which was intended to embrace special covenants on the part of the lessee was not signed by him, but was taken by tlie lessor and put upon record, the act was deemed to be a waiver of the lessor's right to have such covenants executed.^ § 246. Express or Implied. — Inferred from Construction of the Instrument. — Covenants in a lease are either express or implied, or, as they are otherwise termed, covenants in deed, and covenants in law. Express covenants are such as are created by the words of the parties, declaratory of their inten- tion. Implied covenants are those which are necessarily to be inferred from the relation of parties to each other. No precise or technical language is necessary for the purpose of making a covenant.^ It may be put in the form of a condition, an exception,'' or even a recital ; ^ for wherever the intention of the parties can be collected out of the instrument, amount- ing to an agreement to do, or not to do, a particular thing, 1 Atlantic Dock Co. v. Leavitt, 54 N. Y. 35; Trotter v. Hughes, 12 id. 74; Halsey v. Reed, 9 Paige, 446; Rawson v. Copland, 2 Sandf. Ch. 251. 2 Libby v. Staples, 39 Me. 166; McCrea v. Purmort, 16 Wend. 460. * Davis V. Lyman, 6 Conn. 249; Bull v. FoUett, 5 Cow. 170; Lant v. Norris, 1 Burr. 290, per Ld. Mansfield. Where words importing a cove- nant are intended to operate as a condition, they are always express to that point. Surplice v. Farnsworth, 7 M. & G. 576, 584. * Holder v. Taylor, 1 Roll. Abr. 518, 1. 19 ; Russell v. Gulwel, Cro. El. 657; Lowell M. H. v. Hilton, 11 Gray, 407. 6 Penn v. Preston, 2 Rawle, 14; Barfoot v. Freswell, 3 Keb. 465. Thus a lease of a: lot "with the fire-proof brick cotton- warehouse thereon " is a covenant that it is fire-proof, especially as it appears to have been the in- tention of the parties to secure such a warehouse. Vaughan v. Matlock, 23 Ark. 9. But a lease of a salt-well implies no covenant of its capacity. Clark V. Babcock, 23 Mich. 164. 296 COVENANTS AND CONDITIONS. [CHAP. VII. it is suflScient to create a contract.^ Thus, if it is agreed between two persons under seal that one shall pay the other a sum of money for his lands on a particular day, the words will amount to a coTenant, on the part of the latter, to convey the lands on that day.^ So, where an office had been con- veyed by the plaintiff to the defendant, provided, that out of the first profits he should pay the plaintiff £500, it was held, that this proviso was in the nature of a covenant, and not being inserted by way of condition or defeasance, that an 1 Hallett V. Wylie, 3 Johns. 44; Hill v. Carr, 1 Ca. in Ch. 294; Ran- dall V. Lynch, 12 East, 182 ; Chancellor v. Foole, Doug. 766 ; Johnson v. Boyfield, 1 Ves. 314; Livingston v. Stickles, 8 Paige, 398. The leading rule of construction always is, that contracts are to be expounded so as to cari-y into effect the intention of the parties appearing on the face of the ■whole instrument; not from particular expressions, but ex antecedentibus et consequentibus, according to the reasonable sense and construction of words. Davis v. Lyman, 6 Conn. 249 ; Watchman v. Crook, 5 Gill & J. 239 ; Quackenboss v. Lansing, 6 Johns. 49 ; Marvin v. Stone, 2 Cow. 781 ; Westcott V. Thompson, 18 N. Y. 367; Iggulden v. May, 7 East, 241; Browning u. Wright, 2 B. & P. 13; Doe v. Abel, 2 M. & S. 541; Mnd v. Marshall, 1 Br. & B. 319; Boyle v. Peabody Heights Co., 46 Md. 623. The intention of both parties must be considered. Briggs v. Vahderbilt, 19 Barb. 222. When written, the language made use of is to govern, if it be clear and explicit, and does not involve an absurdity. Buck v. Buck, 18 N. Y. 339 ; Moffat v. Henderson, 50 N. Y. S. C. 211. Particular clauses are subordinate to the general intent. Decker v. Furniss, 14 id. 615. A covenant cannot be controlled by a verbal agreement ; but parol evidence of fraud or mistake in a covenant is admissible: Hustons v. Winans, 3 Wend. 163; Thomson v. White, 1 Dall. 424; Christ v. Diffenbach, 1 S. & R. 464; McRae v. Purmort, 16 Wend. 460; Depeyster v. Hasbrook, 11 N. Y. 582; and independent collateral though contemporaneous agree- ments, relating to the same subject-matter, may still be supported; Church V. Brown, 21 N. Y. 319, 330. Ambiguous expressions are to be eonstrtied most strongly against the party using them. But if two opposite inten- tions are expressed, the first in order shall be preferred ; or, if one of two things is to be done, the option is in the person who is to perform it. Shep. Touch. 166; Rubery v. Jervoise, 1 T. R. 229; Dann v. Spuriiel-, 3 B. & P. 399; Hoover v. Clark, 3 Murph. 169; Randel v. Ches. & D. Canal Co., 1 Harringt. 233; Cartwright v. Amatt, 2 B. & P. 43; Laytoii v. Pearce, Doug. 15. Uncertain terms, too, are to be intei^reted in the sense in which the promisor believed at the time of making it that the promisee understood it. Barlow v. Scott, 24 N. Y. 40 ; Mowatt v. Londesboa-ough, 3 EUis & B. 307. 2 Pordage v. Cole, 1 Saund. 319. SBC. l] of covenants. 297 action of covenant would lie upon it.^ And with respect to words which are not in form either a covenant or condition, they will be construed to be either the one or the other, where, without such construction, the party would have no remedy ; while the general leaning of the law against forfeit- ures always inclines the courts to call them a covenant rather than a condition, where the remedy can be legally attained by such a construction.^ § 247. Inferred from Circumstances. — Whole Instrument to be Construed together. — In general, wherever circumstances exist from which an agreement between parties may be inferred, they are equivalent to an express promise.^ As where a lease was made, on condition that the lessee should keep and leave the houses at the end of the term in as good plight as he found them ; the lessee was held liable for omitting to leave the houses in good repair, for here an agreement to that effect was understood.* So in the case of a lease for years rendering rent, the word render was adjudged to amount to a covenant to pay rent.* But wherever the words do not amount to an 1 Clapham v. Moyle, 1 Lev. 155. So a clause in an agreement to let land that the lessor might take any part for building, on making a pro- portionate abatement in the rent, and making good the fences, operates as a covenant, and not as a defeasance of the estate, if there are no words giving him a right of re-entry. Doe v. Philips, 2 Bing. 13; 9 Moore, 46. So a clause giving a lessor the right to sell the premises on two months' notice to the lessee, he to have the option to buy, is enabling and not restrictive of the lessor's general right to sell. Callaghan v. Hawkes, 121 Mass. 298. 2 Aiken v. Albany V. & C. R. E., 26 Barb. 289. But see Palmer v. Fort PI. & C. Co., 11 N. -Y. 376. A contract will be construed a grant or a covenant, according to the iiltention of the parties, when it will act as either. Culver v. Shriner, 5 H. & I. 218. » Lamb v. Bunce, 4 M. & S. 275. * Bac. Abr. Cov. A. ; Roll. Abr. 518. A lease need not contain an express covenant to build in order to make it an improvement lease. Barclay v. Wainwright, 86 Pa. St. 191. * Giles V. Hooper, Castle, 135 ; Delancey v. Ganong, 9 N. T. 9. So where in a lease of a coal-mine lessee agi'eed not to injure surface in removing coal, and this was spoken of as a condition, it was held only a covenant. McKnight v. Kreatz, 51 Pa. St. 232. 298 COVENANTS ANB CONDITIONS. [CHAP. YU. agreement, or are merely conditional for the purpose of de- feating the estate, or relate to some collateral act or matter which is not parcel of the demise ; as, if a lease be granted, provided and on condition that the lessee shall collect and pay the rents of the other houses of the lessor, covenant is not maintainable, for these words are evidently intended to limit the estate.i And it is immaterial in what part of the deed a covenant is inserted ; for, in its construction, the whole deed must be taken into consideration, in order to discover the meaning of the parties ; and the meaning is to be collected from the whole context of the instrument, as well from that which precedes as from what follows the covenant, according to the reasonable sense of the words.^ § 248. Exception may amount to. — Words, in the form of an exception, may amount to a covenant ; as where a lessee agreed that he would, " during the term, plough, sow, manure, and cultivate the demised premises (except the rabbit-warren and sheep walk), in a regular and due course of husbandry, according to the custom of the country," the exception was held to be as much of an agreement as the rest of the stipula- tion in which it was placed, and to import a direct obligation not to plough the rabbit-warren and sheepwalk.^ So were the words that A. should take firebote, without cutting more than was necessary.* But on a covenant by a lessee, " to repair 1 Geery v. Reason, Cro. Car. 128; Simpson v. Titterell, Cro. El. 242; Ld. Cromwell's Case, 2 Co. 71, b. Where the language imports a con- dition merely, and there are no words importing an agi-eement, it cannot be enforced as a covenant, but the only remedy is through a forfeiture of the estate. Palmer v. Fort PI. & C. Co., supra. ■ Thus in a covenant not to assign -without lessor's consent, the words " such consent not being arbitrarily withheld," with a like condition contained in a lease, do not make a covenant by lessor not so to withhold, but are only a qualification of the lessee's covenant and condition. Treloar v. Bigge, L. K. 9 Exch. 151. 2 Knickerbacker v. Killmore, 9 Johns. 106; Davis v. Lyman, 6 Conn. 249 ; Ludlow v. McCrea, 1 Wend. 228; Plowd. 329, cited by Lord Ellen- borough in Iggulden v. May, 7 East, 241. 8 St. Albans v. Ellis, 16 East, 352. * Stevinson's Case, 1 Leon. 324. SEO. I.] OF COVENANTS. 299 the demised premises (principal timber only excepted)," the lessor was held not to be obliged to deliver the timber ; for the exception amounted to no more than that he was to pro- vide it ready for the defendant to carry away.^ § 249. May rest on a Recital. — Words of recital, when joined to and considered with the rest of the intent, may be the founda- tion of a covenant ; as, if a man recites in a deed that he is possessed of a certain interest in land, and assigns it over by the same deed, covenanting to perform all the agreements in the deed, — if he is not possessed of such an interest, there is already a breach of the covenant.^ So, where one entitled to a term for ninety-nine years, " if three persons named should live so long," recited his interest, stating that one life was in being, and then assigned his term, it was adjudged that such recital amounted to a covenant, that the life continued.^ And where a lease contained a recital of an agreement with the lessor that the lessee should pull down an old mill and build another ; and also contained a covenant to keep the new mill in repair, but not for building it, — it was held that the cove- 1 Brailsford v. Parsons, 1 Lutw. 308 ; Stone v. Gilliam, 1 Show. 149. Words are to be taken in their legal sense, ■where they have one, unless it is apparent from the contract itself, without reference to any usage between the parties or their predecessors in antecedent contracts of the same nature, that they were meant in another sense. AU contracts must be expounded with reference to their subject-matter, to which end evi- dence of the state of things existing when they were concluded may be given ; and this rule may frequently restrain the most indeiinite expres- sions. The custom of the place, if any such exists, is an implied term of every contract ; but a usage cannot be set up in contravention of an ex- press contract. Master v. Howard, 6 T. R. 338; Pavey v. Burch, 3 Miss. 447; Doe v. Burt, 1 T. R. 701; Hassell v. Long, 2 M. & S. 363; GiUett V. Newman, 1 Taunt. 137; Yeats v. Pim, 2 Marsh. 141. The subsequent acts of contracting parties are inadmissible to explain their original in- tention. And the rules for the construction of all contracts are the same, whether the instrument is by parol or under seal. Clifton v. Walmesley, 5 T. R. 564; Seddon v. Senate, 13 East, 63. " Severn v. Clerk, 1 Leon. 122 ; Johnson ». Proctor, Yelv. 175 ; Brown- ing V. Wright, 2 B. & P. 25. 8 Best V. Brett, 1 Boll. Abr. 518; HoUis v. Carr, 3 Swanst. 649; Bar. ton V. Fitzgerald, 15 East, 530; Barfoot v. Freswell, 3 Keb. 465. 300 ■ COVENANTS AND CONDITIONS. [CHAP. VH. nant to build was implied in the recital.^ But a recital in a covenant, executed by one of the parties through misappre- hension or mistake, will not be regarded by a court of equity as conclusive upon such party ; for evidence will be admitted to show that the recital is not true, and that it was inserted in the covenant through misapprehension or mistake.^ § 250. Proviso may be Equivalent to. — A proviso may, in some cases, amount to nothing more than a covenant ; as, where a lease was made to a lessee for life, with a proviso that, if the lessee should die within the term of forty years, the executor of the lessee should have it for so many of the years as should amount to the number of forty, to be com- puted from the date of the lease, the proviso was held only to amount to a covenant.^ Or if a lessee for years covenants to repair, " provided always, and it is agreed that the lessor shall find great timber," &c., the word " agree " creates a covenant on the part of the lessor to find great timber, and will not be considered as a qualification of the lessee's covenant.* But if the word " agreed," or some equivalent expression, is not made use of, the proviso will not operate as a covenant on the lessor's part, but only as a qualification of the covenant of the lessee ; for words in an instrument under seal, which have evidently been inserted by way of condition or defeas- ance, will not amount to a covenant.^ Nor do words expres- sive of the quantity of land in a deed, of themselves amount to a covenant that there is such a quantity, for they are merely descriptive of the land conveyed.^ § 251. License may operate as. — A license, if under seal, may take effect as a covenant ; as, where it authorizes the party to whom it is made to go upon the land of the party 1 Sampson v. Easterby, 9 B. & C. 505. 2 Rich V. Hotohkiss, 16 Conn. 409. * Parker v. Gravenor, Dyer, 150, a; 1 Co. 155, a. * Holder v. Taylor, 1 Brownl. 23; Pordage v. Cole, 1 Saund. 319; Samways v. Eldsley, 2 Mod. 73. 5 United States v. Brown, 1 Paine, C. C. 422 ; Huddle v. Worthington, 1 Ham, 423 ; and see Treloar v. Bigge, L. R. 9 Exch. 151. 9 Powell V. Clark, 5 Mass. 355; Beach v. Stearns, 1 Aik. 325. SEC. I.] OF COVENANTS. 301 granting it, and use the land for his own profit ; and in that case it would be equivalent to a lease. Or such a license may- be limited to some particular purpose, as to cut wood or draw water, and in either case would be supported as a covenant, and effect would be given to it in the same manner as any other contract.^ And the same license may sometimes oper- ate as a contract as to some things and a mere p6rmit as to others. As in the case of a grant with permission to go upon the land of the grantor, and make a watercourse to flow over the land of the licensee. Such a license being coupled with the grant and forming part of its consideration would amount to the grant of a watercourse, and would be irrevocable, so that an action might be predicated upon any breach or interference therewith at any time.^ § 252. Implied, arise as Conclusions of La-w. — Implied cove- nants depend for their existence upon the intendment and construction of law ; and are such as the law raises, from the relation of the parties to each other, or from the use of certain terms in establishing that relation, in the absence of any ex- press agreement on the subject between them.^ Thus, if land 1 Davis V. Townsend, 10 Barb. 333. So where the license is to mine on a certain lot so long as the licensee shall do regular mining work on the lot. Boone v. Storer, 66 Mo. 430. 2 Wood V. Leadbitter, 13 M. & W. 838; Thomas v. Sorrell, Vaugh. 330; Cook V. Stearns, 11 Mass. 533; Cheever v. Pearson, 16 Pick. 266, 273. * Walker v. Brown, 28 111. 383. But covenants thus implied, or cove- nants in law, must be carefully kept distinct from covenants implied by construction from the words of the agreement ; for these last are, properly- speaking, express. See Williams v. Burrell, 1 C. B. 402, 429 et seq. " The distinction between covenants, and the only distinction, we take to be this: they are either covenants by express words, or covenants in law. Co. Lit. 139, b. . . . A covenant in law, properly speaking, is an agreement which the law infers or implies from the use of certain words having a known legal operation in the creation of an estate. But the legal effect and operation of a covenant, whether framed in express terms, or whether the covenant be matter of inference and argument, is pre- cisely the same ; and an implied covenant, in this sense, differs nothing in its operation or legal consequences from an express covenant." Such " an implied covenant is to all intents and purposes an express covenant. 302 COVENANTS AND CONDITIONS. [CHAP. VII. be granted for a term of years, by the words demise or grant, without any express covenant for quiet enjoyment, the lessee or his assigns, if the lessor's title proves to be defective, or he is ousted by rightful title, may sustain an action on the implied covenant that the lessor warranted he had a good title at the time of executing the deed ; for the word demise imports a covenant for quiet enjoyment as well as a power of letting. So the word grant implies the power of giving ; ^ although it does not constitute a warranty when used in a conveyance of freehold estate.^ And in an agreement to assign a lease an undertaking is implied to warrant the lessor's title and the lessee's right to assign.^ A covenant is also implied on the and it is only those covenants which the law itself implies that can properly be considered as covenants in law." The words "yielding and rendering" are accordingly not properly an implied covenant, but an express one, by construction. They are, it is true, often termed an im- plied covenant, but this can only mean by construction, and that is tanta- mount to an express covenant; and they should have all the incidents of the latter. See Hellier v. Gaspard, 1 Sid. 266; Newton v. Osborn, Style, 387; Bingh. Real Prop. 388, 389; and see Bowen v. Hodges, 13 C. B. 765, 774. In only one case was the point decided otherwise ; viz., Kimp- ton V. Walker, 9 Vt. 191; though in many text-writers and cases dicta are found to that effect. But in that case (p. 200) it is admitted that "the words express the thing to he done, and, in that sense, are express," which concedes the whole point; for a covenant is express whenever the natural import of the terras, singly, or with the aid of construction or inference, expresses the obligation. ^ Grannis v. Clark, 8 Cow. 36; Frost v. Raymund, 2 Caines, 188; Deering v. Farrington, Freem. 368; Hackett v. Glover, 10 Mod. 142; Spencer's Case, 5 Co. 17; Barney v. Keith, 4 Wend. 502; Wells v. Mason, 4 Scam. 84; Folts v. Huntley, 7 Wend. 210; Adams v. Gibney, 6 Bing. 656 ; Stott V. Rutherford, 92 U. S. 107. A recited antecedent agreement may raise a covenant by implication. Easterby v. Sampson, 6 Bing. 644. So the word "Ze(," or any equivalent word, imports a covenant of quiet enjoyment. Hall v. City Brew. Co., 12 B. & S. 737; Maule v. Ashmead, 20 Pa. St. 482; Ross v. Dysart, 33 id. 452; Hamilton v. Wright, 28 Mo. 199; Montagu v. W. & Mos. C. & I. Co., 1 L. R. C. P. Div. 145; Stott v. Rutherford, supra. But Lovering v. Lovering, 13 N. H. 513, is contra. 2 Spencer's Case, 5 Co. 18, a; Browning v. Honeywood, Freem. 339- 414. But these words import no covenant in an assignment. Landydale V. Cheyney, Cro. El. 157; Blair v. Rankin, 11 Mo. 442. s Souter V. Drake, 5 B. & Ad. 992; Bensel v. Gray, 38 N. Y. Sup'r, 447; Same v. Same, 44 id. 253. SEC. I.] OP COVENANTS. 303 part of the lessee, that he will use the land demised to him in a husband-like manner, and not unnecessarily exhaust the soil by negligent or improper tillage.^ And, as a considera- tion is necessary to every contract, it is always implied that the tenant shall pay an annual rent, unless the lease was granted in consideration of a sum in gross. So a covenant by a lessee to pen and fold the flock of sheep, which he should keep upon the premises, upon those parts of the land where they had usually been folded, was held to imply a cove- nant to keep a flock of sheep upon the premises.^ § 253. Implied, cannot Control but may Enlarge or Qualify Express Covenants. — It is also a well-settled rule that where there is an express covenant the law will not imply one. But an implied covenant may be qualified, enlarged, or restrained by an express covenant;^ as, for example, the implied cov- enant for quiet enjoyment against all persons claiming title, may be enlarged by the lessor's covenanting against disturb- ances by all persons whatsoever; or narrowed by his cov- enanting against the acts of such persons only as claim through him. An implied covenant may however subsist in the deed, if it is consistent with, and not contradictory to, the express covenant : * thus, a stipulation in the lease regulating the disposition of the hay, straw, and manure, does not exclude an agreement implied from custom that the tenant shall be paid for his seeds and labor.^ And an express covenant will be limited to its proper force, and not imply an obligation 1 Powley V. Walter, 5 T. R. 373; Walker v. Tucker, 70 111. 527. 2 Webb V. Plummer, 2 B. & A. 746. « Kentu. Welch, 7 Johns. 258; Sumner v. Williams, 8 Mass. 201. 4 Gates V. Caldwell, 7 Mass. 68; Christine v. Whitehill, 16 S. & R. 98; Morris v. Harris, 9 Gill. 19. " Hutton V. Warren, 1 M. & W. 466; and the broad language of Bayley, J., in Webb v. Plummer, 2 B. & A. 750, " where the lease speci- fies any of the terms of quitting, we must then go by the lease alone," is here qualified. In Holford ». Dunnett, 7 M. & W. 348, it seems held that the obligation of the lessee to use the premises in a tenant-like manner -will be implied, though there is an express covenant to repair; but Standen v. Christmas, 10 Q. B. 135, is a direct authority to the contrary. 304 COVENANTS AND CONDITIONS. [CHAP. VII. which is not strictly in pari materia. Thus a covenant of warranty does not imply a covenant of seisin, nor under such a covenant can it be assigned as a breach that there was no such land as the grantor undertook to dispose of.^ So a covenant of quiet enjoyment in a lease by a vendee was no warranty against a restriction on the use of the premises contained in the deed to the former.^ § 254. Of mesue Lessors and their Lessees. — Where a lessee assigns the leasehold premises, " to have and to hold in as ample a manner, to all intents and purposes, as the assignor might or could hold the same, and covenants that he had good and lawful right to bargain and transfer the premises, as above written, and that the same are free of all arrearages of rent, and other incumbrances," the covenant is limited to the acts of the assignor himself, and does not amount to a warranty of the landlord's title.^ And if, in an under-lease, the sub-lessee covenants to keep down the rent reserved in the original lease, and the superior landlord distrains, at the end of the first quarter of the under-lease, for one quarter's rent due under the superior lease, there will be no implied covenant on the part of the sub-lessor to indemnify his lessee, although the rent in the under lease is reserved yearly.* So an express covenant against persons who are named restricts any implied covenant arising under the word " demise." ^ And an express covenant for quiet enjoyment restrains the implica- tion usually contained in the word " demise," which usually implies two covenants, to wit, a covenant for title, and another for quiet enjoyment.® 1 Cutter V. Powell, 6 T. R. 320; Vanderkarr v. Vanderkarr, 11 Johns. 122. 2 Dennett v. Atherton, L. E. 7 Q. B. 316. ' Knickerbacker v. Killmore, 9 Johns. 106. * Upton V. Fergusson, 3 Moore & S. 88. « Merrill v. Frame, 4 Taunt. 329. 8 Line v. Stephenson, 4 Bing. (N. C.) 678; s. c. 5 Bing. (N. C.) 183. A mere parol demise imports only a contract for quiet enjoyment, not for title. Granger v. Collins, 6 M. & W. 4.58; Bandy v. Cartwright, 8 Exch, 913 ; Vernam v. Smith, 15 N. T. 827, 332 ; Maule v. Ashmead, 20 Pa. St. 482; Carson !?. Godley, 26 id. 117; Koss v. Dysart, 33 id. 452. SEC. I.] OP COVENANTS. 305 § 255. How Limited by Construction. — In order to support the apparent intention of the parties, covenants in large and general terms have been frequently narrowed and confined ; * as, where the defendant sold the plaintiff a lease for years, and covenanted that he would not do nor have done 2iaY act to disturb the plaintiff, but that the plaintiff should hold and enjoy without the disturbance of the vendor or any other per- son, it was held that the covenant was confined to acts done or to be done by the vendor, and that the words or any other person were to be referred to^ and regulated by the former part of the engagement.^ So a covenant that the grantors were seised of a good estate in fee, and had good right to con- vey, was held to be qualified and restrained by a subsequent covenant for quiet enjoyment, without let or interruption by them, their heirs, or other persons claiming under them.^ § 256l Express and Implied, Distinctions between. — The dis- tinction between express and implied covenants is important, and not merely technical. Express covenants will be con- strued more strictly thaii those which are implied, and may be entered into without a consideration, while the latter can- not.* Implied covenants cannot extend to a thing not in esse at the time of the demise ; therefore if A., in consideration that B. will build a mill upon the land, and make a water- course through it, grants and demises the land to B. for a term of years, and afterwards stops the watercourse, B. cannot maintain covenant against him.^ Such covenants are also confined to the party covenanting, and do not bind his repre- sentatives; and though the word demise in a lease, where there is no express covenant for title, amounts to an implied 1 Cole V. Hawes, 2 Johns. Cas. 203; Miller v. Heller, 7 S. & R. 40. ^ Broughton v. Conway, Moor, 58; Gale v. Reed, 8 East, 89; Niad v. Marshall, 1 Br. & B. 319. 8 Milner v. Horton, McClel. 647; Doe v. Meux, 4 B. & C. 606. * Shubrick v. Salmond, 3 Burr. 1639; May v. Trye, 1 Freem. 447. The seal of a covenant, however, always imports a consideration. Express covenants contained in a lease will not be extended by implication, unless the implication is clear and undoubted. Smiley v. McLauthlin, 138 Mass. 368. ' Huddy I'. Fisher, 1 Leon. 278. VOL. I. — 20 306 COVENANTS AND CONDITIONS. [CHAP. VII. covenant to that effect, yet if the lessor be tenant for life only, and the remainder-man should oust the lessee, he will have no remedy, on the merely implied covenant, against the executors of the lessor .^ § 257. Implied, Statute as to, construed in New York. — The common-law doctrine of implied covenants in leases for years was at one time considered to have been abrogated in New York by a provision of the Revised Statutes, which declares that " no covenant shall be implied in any conveyance of real estate whether such conveyance contain special provisions or not ; " the words " real estate " being construed to include leases for years.2 But this construction of the statute was sub- sequently denied,^ and the Court of Appeals in that State now holds that there is nothing in the statute which is intended to apply to terms for years, and that a covenant for quiet enjoyment is necessarily implied in every lease for years.* § 258. Parties. — Who may maintain Actions on Covenants. — With respect to the parties to a covenant, it is a general rule that where a contract is made for the benefit of a third person it is valid, and may be enforced by him, if he has an interest in the subject-matter of the contract ; ^ but where it is made under seal, and inter partes, no one but a party to the instru- ment can maintain an action for a breach of it.^ An indent- ure not inter partes will have the operation of a deed-poll, on ' McClowry v. Croghan, 1 Grant's Ca. 211; Adams v. Gibney, 6 Bing. 656. " Baxter v. Ryerss, 13 Barb. 284; Kinney v. Watts, 14 Wend. 38. » Tone V. Brace, 8 Paige, 597; 11 id. 569. *■ Mayor v. Mabie, 13 N. Y. 151; Vernam v. Smith, 15 id. 327; Burr V. Stenton, 42 id. 462 ; and see post, § 304. « Brewer v. Dyer, 7 Cush. 337, where lessor maintained assumpsit on an agreement given to the lessee for the rent by one who had received occupation from him. So see Lawrence ». Fox, 20 N. Y. 268; Van Schaick v. Third Av. R. R., 38 id. 346; when the obligation is not under seal. But that a mere beneficiary cannot sue, see Mellen v. Whipple, 1 Gray, 317; and Brewer i>. Dyer has since been denied to be law. See ante, § 155, and n. « Spencer v. Field, 10 Wend. 87; Stone v. Wood, 7 Cow. 453. SEC. I.J OF COVENANTS. 307 which an action may be maintained by a party not executing it, but to and with whom the covenant is made ; ^ as where A. covenanted with B. to pay him a certain sum of money, and in the same instrument also covenanted with B. & C. to pay C. another sum of money, the court were of opinion that as this was not an indenture between parties, but only a deed- poll, the party might covenant with a stranger, and also with other persons, to do several other acts for which every one severally might bring his action.^ But a party for whose benefit merely a covenant is made, cannot maintain an action thereon ; nor by a deed inter partes can one who is a party to the deed covenant with another who is no party to it ; even for the performance of acts expressly for such third person's benefit.^ Yet if one who is a mere stranger, and not named a party (the instrument being inter partes), covenants with another who is named, and seals the deed, he is bound by his seal. As, where one agreed to let a house to another at a certain rent, and a stranger covenanted on behalf of the lessee that the lessee should pay the rent, it was held that on this deed the defendant, although not a party, was liable to an action of covenant, in consequence of his having sealed.* § 259. Grantee in Deed-poll not liable in Covenant. — No ac- tion of covenant can be maintained under a deed-poll against a lessee claiming title to the estate, nor can mutual covenants arise under such an instrument, as it is the deed of one party only.^ It would, therefore, be unsafe to dispense with the 1 Matthewson's Case, 5 Co. 22. ^ Lowther v. Kelly, 8 Mod. 115; Lucke v. Lucke, 1 Lutw. 302; Cooker V. Child, 2 Lev. 74; Van Alstyne v. Van Slyck, 10 Barb. 383. » Haskett ». Flint, 5 Blackf. 69; Bleecker v. Bingham, 3 Paige, 246. * Storer«. Gordon, 3 M. & S. 322 ; Metcalfe v. Rycroft, 6 id. 75; Wheel- right V. Beer.s, 2 Halst. 391; Berkeley v. Hardy, 5 B. & C. 355; South- ampton V. Brown, 6 id. 718. ^ Chancellor v. Poole, 2 Doug. 764; Staines v. Morris, 1 Ves. & B. 14; Wilkins v. Fry, 1 Mer. 266; Sutherland v. Lishnan, 3 Esp. 42; Kimpton V. Eve, 2 Ves. & B. 353; Burnett v. Lynch, 5 B. & C. 589. So Trustees V. Spencer, 7 Ohio, 493, where a lessee under a sealed lease, who had entered but not sealed, was held not liable to lessor in covenant. But in Aiken v. Alb. R. R., 26 Barb. 289, the grantee in a deed-poll who had entered was held bound by acts covenanted to be done by him, though the 308 COVENANTS AND CONDITIONS. [CHAP. VII. execution of an indenture by the lessee, on the assumpticfn that his entry and enjoyment under the lease would be suffi- cient to expose him to an action for a breach of any of the covenants to be performed by him. But a covenantee, with- out executing the deed, may bring an action of covenant against the covenantor, whether the instrument be by deed- poll or indenture ; for the execution by a covenantor fixes his liability.^ § 260. Personal, or running with the Land. — Covenants in a lease are either personal, or run with the land. If they extend to a thing in esse, parcel of the demise, and touch or concern the estate, as to rebuild or repair, they run with the land and every part thereof, and bind not only the covenantor and his personal representatives by privity of contract, but also the assignee, though not named, and every other person who is in of any estate created by, or growing out of the original demise, by privity of estate.^ And if they relate to a thing not in esse, but which is yet to be done upon the land •words were the grantor's; and, in Finley v. Simpson, 2 Zab. 311, and McLaughlin v. McGovern, 34 Barb. 208, the same doctrine was laid down, with regard to a lessee by indenture -who had entered, but neither signed nor sealed the lease; and to the same point are Co. Lit. 231, a; Lock v. Wright, 8 Mod. 40. But the opposite doctrine was laid down in Flatt, Gov. 10-12; and was held in Maule v. Weaver, 7 Pa. St. 329; L^sh ». Johnston, 11 id. 488. 1 Smith et al. v. Kerr, 3 N. Y. 144; Petrie v. Biiry, 3 B. & C. 353; Vernon v. JefEerys, 2 Stra. 1146 ; Codman v. Hall, 9 Allen, 335. Such an action lies also in favor of the assignee of the lessee. Aveline v. Whisson, 4 M. & G. 80. And if a lease by indenture has been accepted and occu- pancy had thereunder, its covenants bind the lessee, though the statute requirement that it should be witnessed, acknowledged, and recorded, to be effectual against any one but the grantor, has not been complied with. Eipley v. Cross, 111 Mass. 41. ^ Spencer's Case, 5 Co. 16, 1st resolution. On a covenant by a lessee, not naming assigns, to repair and yield up in repair, all buildings and erections, an assignee is liable in respect of the non-repair of buildings erected during the term; for this is not a future obligation, but a present one to do something conditionally. Minshull v. Oakes, 2 H. & N. 793; Martyn v. Clue, 18 Q. B. 661. But the assignee of the reversion is not so bound: Id. ; Hansen v. Meyer, 81 111. 321 ; though in the latter case the decision is based on the 2d resolution in Spencer's Case. SEC. I.] OF COVENANTS. 309 tending to enhance its value, or to render its enjoyment more beneficial to the owner or occupant, as to build a house or a wall, the assignees, if named, are also bound.^ But if they do not touch or concern the thing. demised, as to build a house de novo ; or to build on other land ; or to pay a collateral sum to the lessor, — the assignee, though named, is not bound ; such covenants being considered mere persoTial covenants not affecting the land demised, but merely collateral to it.2 § 261. Running -with the Land, 'what. — Concern the Land. — Privity of Estate essential to Create. — In order that a covenant may run with the land, its performance or non-performance must affect the nature, quality, or value of the property de- mised, independent of collateral circumstances, or must affect its mode of enjoyment.^ It must not only concern the land, 1 Spencer's Case, supra, 2d resolution. Hansen v. Meyer, supra. So a covenant to insure a building covenanted to l?e erected by the lessor as parcel of the demise runs, though the word " assigns ' ' is not added. Masury V. Southworth, 9 Ohio St. 340. Whether a covenant to deliver up would 80 run was doubted in Sargent v. Smith, 12 Gray, 426, and denied by Parke, B., in Doe v. Seaton, 2 C. M. & R. 730. Verplank v. Wright, 23 Wend. 506; Wakefield v. Brown, 9 Q. B. 209. " Spencer's Case, supra, 2d resolution; Dolph v. White, 12 N. Y. 296; Mayor, &o. v. Pattison, 10 East, 130; Curtis v. White, Clarke, 389. Where a lessee had covenanted for himself and his heirs to pay rent dur- ing the term, and after his death his son entered into possession and paid rent for several months, it was held that the son was not liable on the covenant, since this did not run with the blood, and could not be inherited. Camp V. Scott, 47 Conn. 366. The rules laid down in the text are only stated as applicable to the lessee's covenants. But they apply equally to those of a lessor which will run with the land demised, and enure to the lessee's assigns under similar conditions. At common law the assignees of a reversion were neither bound by nor could take advantage of the covenants or conditions in the lease, although these were of a nature to run with the land. This was altered by Stat. Hen. VIH. c. 34, as to assignees of reversions on leases for life or years. » Norman v. Wells, 17 Wend. 136; see post, § 444; Dunn «. Barton, 16 Fla. 765; Scheldt v. Belz, 4 Bradw. (111.) 431. Thus a mortgage, con- tained in a lease, of the crops to be raised on the premises, as a security for the rent, constitutes a covenant running with the land. Doty v. Heth, 52 Miss. 530. So where the covenant is that the rent shall be a lien on 310 COVENANTS AND CONDITIONS. [CHAP. VII. but there must also be a privity of estate between the contract- ing parties ; ^ for if a party covenant with a stranger to pay a the buildings and improvements. Webster v. Nichols, 104 111. 160. So a covenant in a lease with the privilege to make lime on the premises, that the lessee will "remove all rubbish and spalls" at the expiration of his term is held to run with the land. Coppinger v. Armstrong, 5 Bradw. (lU.) 637. Much learning has been expended, and sometimes to little purpose, in endeavoring to define the boundary between real covenants, or such as run with the land, and those which are merely personal. A most elaborate effort to accomplish this end was made by Mr. Justice Cowen, in Norman v. Wells; and yet, after all his researches, that inde- fatigable judge was forced to declare that the authorities still left the application of old principles to new cases a very nice exercise of the mind, and remaining a matter for judicial discretion, in greater degree, than almost any other of equal importance in the law of property. Per Harris, J., in Van Rensselaer v. Bonesteel, 24 Barb. 367. > The rule fully stated is, that in order to the burden of the covenant running with the land and binding the assigns of the covenantor there must have been a privity of estate between the contracting parties at the time of the contract ; but the benefit of a covenant touching the land will run with the land though the covenantor is a stranger. The latter was settled as long ago as 42 Ed. III. 3; the case of the Prior and Convent, stated and followed in Spencer's Case, 5 Co. 16, is well-established law, and is the ground of recovery on covenants of title by assignees of a grantee in fee. The former has been much debated, but is, on the whole, settled as stated, supra. So per Willes, J., in Dennett v. Atherton, L. K. 7 Q. B. 316, 326. Thus, where the covenanting parties never had any interest in the land, their assignees ai'e not bound. Hurd v. Curtis, 19 Pick. 459; Keppell v. Bailey, 2 Mylne & K. 517; Plymouth v. Carver, 16 Pick. 183; Bronson v. Coffin, 108 Mass. 180. So a covenant by lessor with lessee not to exercise a particular trade on another parcel of lessor's land does not bind a grantee of the latter parcel, for quoad hoc they are strangers. Taylor v. Owen, 2 Blackf. 301. In equity, however, it seems well settled that the want of privity will not relieve an assignee from the burden of a covenant relating to the premises of which he has full notice before the assignment; and Keppell v. Bailey, supra, is to this extent overruled. Luker v. Dennis, 7 L. R. Ch. Div. 227. So, since the stat- ute of quia emptores, which abrogated privity of estate and tenure between grantor and grantee on a conveyance in fee, covenants thei-eon will not run with the land to bind assigns; as, for instance, to pay rent, it being a rent charge. Brewster v. Kidgill, 12 Mod. 166, explained in 1 Smith Lead. .Cas. 32; Coke v. Arundel, Hardr. 87. But where this statute is not in force, as in Pennsylvania, privity exists between lessor and lessee in fee; the rent reserved is a rent service, and a covenant to pay it binds the assigns of a lessee in the land. Dunbar v. Jumper, 2 Yeates, 74; IngersoU v. Sargent, 1 Whart. 348; Royer v. Ake, 3 Pa. 461; Herbaugh SEO. I.] OP COVENANTS, 311 certain rent, in consideration of a benefit to be derived under a third person, it cannot run with the land, not being made with the person having the legal estate.^ And if the assignee of the reversion or term come in of a different estate to that held by the lessor or lessee, he cannot sue or be sued on the covenants running with the land, for want of privity .^ Thus, V. Zentmyer, 2 Rawle, 159 ; Hannen v. Ewalt, 18 Pa. St. 9. So Wallace V. Harmstad, 44 Pa. St. 492; although it is denied that this flowed from fealty or any feudal relation. In New York, the law was so held: Van Rensselaer v. Bradley, 3 Den. 135; until 1852, when the case of Depeyster I). Michael, 6 N. Y. 467, held that, by statutes of 1779 and 1787, the stat- ute of quia emptores had been re-enacted, and no tenure of privity existed on a lease in fee. This, denying privity, seemed to conclude any liability of the assignee of the lessee in fee on the latter's covenants touching the land. But in Van Rensselaer v. Hays, 19 N. Y. 68, the law was held otherwise by force of statute 1805, o. 98; and though the rent was a rent charge and not a rent service, the assignee was bound to its payment. The statute of 1805 was repealed in 1860, c. 896 ; but the same doctrine ■was decided to exist at common law; Van Rensselaer v. Read, 26 N. Y. 558; whUe in Same v. Slingerland, id. 580, the statute of 1846, c. 274, ■was held to give the same rights in ejectment; and these in Same v. Den- nison, 35 id. 93, were held to exist by common law on conditions in deed, and that the statute of 1787 only affected conditions in law; and these doctrines were adopted in Tyler v. Heidorn, 46 Barb. 439, after a full re- view of the cases, the ground taken being that the reservation of a rent in fee, like its grant, created an incorporeal hereditament, producing privity and a right and liability on the covenants annexed. And in Van Rensselaer v. Barringer, 39 N. Y. 9, Hosford v. Ballard, id. 147, Lyons V. Adde, 63 Barb. 89, the law was declared settled beyond discussion. 1 Demarest i/. Willard, 8 Cow. 206; Woolisoroft v. Norton, 15 Wis. 198; Webb v. Russell, 8 T. R. 393; Allen v. Wooley, 1 Blackf. 148. But see Willard v. Tillman, 2 Hill, 274. * Co. Lit. 215; 1 Saund. 240, a. Though there should be a total want of right in the original covenantor, if his deed transfers the possession, and that possession passes by subsequent conveyances, the original cove- nants pass therewith. The naked possession is an estate, and covenants real before breach pass with it. Beddoe v. Wadsworth, 21 Wend. 120. Thus, the covenant made by the donee of a power of appointment will not bind his appointees, as they do not succeed to his estate, but to the donor's. Roach V. Wadham, 6 East, 289. So, where covenants are not annexed to the reversion to which plaintiff succeeds. Cardwell v. Lucas, 2 M. & W. Ill; Cooch V. Goodman, 2 Q. B. 580. On this principle a privilege granted by an owner to an abutting owner, for the benefit of the latter's estate, is personal, and does not pass to a lessee of the latter. People v. C. &N. W. R. R.,57IU.436. 312 COVENANTS AKD CONDITIONS. [CHAP. VII if a party, having only an equitable estate in a freehold, grants a lease, and then devises the estate to A., and after the death of the testator, A. acquires the legal estate from the person in whom it was vested at the time of the lease and devise, and then sells and conveys the legal estate to B., the latter cannot sue the lessee or his assignee, because he is not in of the same estate as the lessor.^ There is no difference, however, between express and implied covenants, with respect to their running with the land ; ^ but mere equitable covenants do not run with the land.* It is perhaps hardly necessary to add that the doc- 1 Whitton V. Peacock, 2 Bing. (N. C.) 411. 2 Vyvyan v. Arthur, 1 B. & C. 410. ' Whitton V. Peacock, supra. Covenants are ordinarily spoken of as running with the land. How far they run with incorporeal interests in land the cases are not agreed. In England, the benefit of a covenant to pay rent will not run with the rent alone. Milnes v. Branch, 5 M. & S. 411 ; per Parke, B., KandaU v. Rigby, 4 M. & W. 135 ; and yet a covenant to pay tithes ran with the tithes. Bally v. WeUs, 3 Wils. 25 ; and see Egremont v. Keene, 2 Jones, Exch. 307; Muskett v. Hill, 5 Bing. (N. C.) 694; WiDiams v. Hayward, 1 Ellis & E. 1040. In this country, it has been thought that a covenant to pay rent on a lease for life or years will run with the rent alone. See Willard v. Tillman, 2 Hill, 274; Demarest V. Willard, 8 Cow. 206; Patten v. Deshon, 1 Gray, 325. And the same was held of rent on a lease in fee in Pennsylvania. Streaper v. Fisher, 1 Rawle, 155; St. Mary's Church v. Miles, 1 Whart. 229; Scott v. Lunt, 7 Pet. 596. But the sounder view is otherwise both with regard to the former: Allen v. Wooley, 1 Blackf. 148; per Bronson, C. J., in Willard V. TiUman, 2 Hill, 276; and the latter class of rents: Devisees Van Rens- selaer V. Platner, 2 Johns. Cas. 24; Irish v. Johnston, 11 Pa. St. 488. And it has been recently held that such a rent is not a vested estate, but rests in contract only, and is liable to be defeated by an alteration therein. Wallace v. Harmstad, supra. In New York, however, by the statute of 1805, assignees of a rent-charge were held entitled to maintain covenant therefor. Van Rensselaer v. Hays, 19 N. Y. 68. And since the repeal of this statute, in 1860, the same right has been held to exist at common law. Van Rensselaer v. Read, 26 id. 558; Tyler v. Heidorn, 46 Barb. 439. Covenants, it seems well settled, will run with a transfer of the possession of land without title on the ground of estoppel, if the want of title does not appear by the pleadings. Beddoe's Ex'or v. Wadsworth, 21 Wend. 120; Slater v. Rawson, 6 Met. 439; Fowler v. Poling, 2 Barb. 300; Barker V. McCoy, 3 Ohio, 211 ; Foote v. Burnet, 10 id. 317; Devore v. Sundei-land, 17 id. 52; Dickinson v. Hoomes, 8 Gratt. 353; Webb v. Austin, 8 Scott, N. R. 419 ; Gouldsworth v. Knights, 11 M. & W. 337. But if the want SEC. I.] OF COVENANTS. 313 trine of covenants running with the land is limited to instru- ments under seal.^ § 262. Specific Covenants running 'with the Land. — All cove- nants which are implied in law run with the land. So, also, do covenants for quiet enjoyment ; ^ to insure, if the insurance is to be laid out in rebuilding ; ^ for further assurance ; * to re- pair ; * to insure, if the proceeds are to be applied in the restor- ation of the buildings in case of loss ; ® to abstain from carrying on any offensive trade upon the premises ;'' . to discharge the lessor from taxes and assessments, ordinary or extraordinary ; ^ to permit the lessor to have free passage to two rooms excepted in the demise;^ to cultivate the land in a particular manner ;^'* or to cultivate with laborers from a particular locality ; ^^ to maintain a partition fence ;-'2 not to carry on particular of title appears, the action will fail. Noke v. Awder, Cro. El. 373, 436; Andrews v. Pearce, 4 B. & P. 158; Pargeter v. Harris, 7 Q. B. 708; Car- vick V. Blagrave, 1 Br. & B. 581. ' Elliott V. Johnson, 8 B. & S. 38, per Lush, J. " Suydam v. Jones, 10 Wend. 180; Hunt v. Amidon, 4 Hill, 345; Noke «. Awder, Cro. El. 436; Campbell v. Lewis, 3 B. & A. 392. 8 Vernon «. Smith, 5 B. &. A. 1; Thomas v. Van Kapff, 6 Gm & J. 372. * Middlemore v. Goodale, Cro. Car. 503; Koe v. Hayley, 12 East, 464; Bennett v. Waller, 23 111. 97. * Demarest v. WiUard, 8 Cow. 206; Dean and Chapter of Windsor's Case, 5 Co. 24; Shelby v. Hearne, 6 Yerg. 512; Kingdom v. Nottle, 1 M. & S. 355. So Myers v. Burns, 33 Barb. 401 ; Payne v. Haine, 16 M. & W. 541. So even a covenant to pull down and put up. Harris v. Goslin, 3 Harringt. 340. So, on a demise of a cottage for hunting, a covenant to leave the land well stocked runs. Hooper v. Clark, 8 B. & S. 150. « Thomas v. Van Kapff, 6 Gill & J. 372. ' Barron v. Richards, 3 Edw. 96. 8 Post V. Kearney, 2 N. Y. 394; Martin v. Baker, 5 Blackf. 232. « Cole's Case, 1 Salk. 196 ; Bush v. Calls, 1 Show. 389. 1° Cockson ti. Cock, Cro. Jac. 125. The lessor's covenant that the lessee shall have the right to occupy, during his term, such portion of lands as he shall clear and reduce to cultivation, runs with the land and binds the assignee of the reversion. Callan v. McDaniel, 72 Ala. 96 ; McDaniel v. Callan, 75 id. 327. " Mayor of Congleton v. Pattison, 10 East, 130. i« Kellogg V. Robinson, 6 Vt. 276. 314 COVENANTS AND CONDITIONS. [CHAP. VII. trades ;i not to assign j^ not to erect any building in front of tlie demised premises ; ^ nor to permit a building to be used otherwise than as a dwelling-house;* nor to put in operation a rival mill;^ or, it would seem, to pay for trees planted, for fixtures, or for permanent improvements by lessee.^ A cove- nant by a lessor to supply two hpuses with water, at a rate therein mentioned for each house, also runs with the land, and for a breach of it the assignee of the lessee may main- tain an action against the reversioner.^ But covenants to name an arbitrator to make a valuation ; ^ not to permit a grist-mill to be erected ; ^ or to pay the cost of a party-wall, are not of this description.^" Where there was an exception in the lease of an entry, with liberty to wash in the kitchen, and a passage there for that purpose, it was held that an action would lie against an assignee for hindering the lessee, because a covenant relating to a way, or other profit appurte- nant, goes with the tenement and binds the assignee.^^ The right of renewal constitutes a part of the tenant's interest in 1 Tatem v. Chaplin, 2 H. Bl. 133. 2 Per Blackburn, J., in Williams v. Earle, 9 B. & S. 740, 753. ' Trustees v. Cowen, 4 Paige, 510. But Thomas v. Hayward, L. R. 4 Exch. 311, is otherwise. * St. And. Ch. App., 67 Pa. St. 512. 6 Forman v. Wells, supra; Vyvyan v. Arthur, 1 B. & C. 410. 8 Stockett V. Howard, 34 Md. 121 ; Gorton v. Gregory, 3 B. & S. 90, 99. In Elliott v. Johnson, 8 id. 38, it seems admitted that the assignee, if accepted and under seal, could have sued on the covenant; and on the principle of Minshall v. Oakes, ante, § 260, n., such a covenant would seem to run, though assigns were not named. The contrary doctrine to that stated in the text is sometimes advanced, but is not borne out by authority. In Grey v. Cuthbertson, 4 Doug. 351, the covenant sued on was not the valuation, but appointing an appraiser; and in Coffin v. Tal- man, such a covenant was held not continuous or capable of affecting one who became assignee after a breach. ' Jourdain v. Wilson, 4 B. & A. 266. 8 Grey v. Cuthbertson, supra. 9 Harsha v. Eeid, 45 N. Y. 415. w Curtis V. White, Clarke's Chan. 389; Brown v. McKie, 57 N. Y. 684. So a parol agreement to pay more rent for an additional story to be erected by lessor does not pass to the assignee. Coit v. Braunsdorf , 2 Sweeny, 74. " Bush V. Calls, 1 Show. 389. SBC. I.J OF COVBKANTS. 815 the land, and a covenant to renew is consequently binding upon the assignee of the reversion. So the grant of an addi- tional term or of a right to purchase is, for many purposes, to be considered a continuation of tlie former lease ; and if there is notliing in the lease to show that such right or re- newal was intended to be confined personally to the lessee, they will inure to his assignees or executors, without their being particularly named.^ Covenants running with the land are divisible, and will bind the assignee of a part of the estate demised, in respect to the parcel assigned to him, as to repair, or to pay rent of the part occupied by him.^ § 263. Personal, as not concerning Land, bind Covenantor only. — A personal covenant is one which does not affect tlie land demised, but is merely collateral to it. Instead of run- ning with the land and binding those who enter into posses- sion as assignees, it affects only the covenantor during his lifetime, and the assets of his estate in the hands of its repre- sentatives after his death, by reason of the privity of estate. Of this description are covenants of seisin, of a right to con- vey, and against incumbrances.^ If these are not true, there is a breach of them as soon as the deed is executed, and the lessee's right of action is at once complete ; but, being mere 1 Piggot V. Mason, 1 Paige, 412; Winslow v. Tighe, 2 Ball & B. 195; Randall v. Russell, 3 Mer. 196; Hyde v. Skinner, 2 P. Wms. 196; Roe v. Hayley, 12 East, 469; Vernon v. Smith, 5 B. & A. 11; Wilkinson v. Pettit, 47 Barb. 230. Barclay v. Steamb. Co., 6 Phila. 558. Thus the right to have a conveyance of the premises during or at the end of the lease at a fixed price passes. Napier v. Darlington, 70 Pa. St. 64; Wil- lard V. Taylor, 8 Wall. 557; Hagar v. Buck, 44 Vt. 285. * Stevenson v. Lambard, 2 East, 575. Where a covenant which runs with the land is divisible in its nature, if the entire interest in different parcels of the land passes by assignment to difEerent individuals, the covenant will attach upon each parcel pro tanto; and the assignee of each parcel will be answerable for a proportionate part of the common burden, and will be exclusively liable for the breach of any covenant which re- lated to his part alone. Astor v. Miller, 2 Paige, 68 ; Van Home v. Grain, 1 {rf.455; Shep. Touch. 199; Co. Lit. 385, a. ' Sprague «. Baker, 17 Mass. 588; Gilbert v. Bulkley, 5 Conn. 262; Pilsbury v. Mitchell, 5 Wise. 17; Redwine v. Brown, 10 Ga. 311. 316 COVENANTS AND CONDITIONS. [CHAP. VII. choses in action, they are not assignable.^ -So a covenant on the part of the lessor to pay the lessee, without including his assigns, for a building not yet erected, but which is to be built during the term, does not run with the land.^ Nor are the lessor's covenants to pay the debt of a third person, to surrender certain personal chattels, or to pay the lessee for chattels replaced by him during the term, binding upon an assignee.* § 264. Joint or Several. — Joint and Several. — Covenants may also be either joint or several, and are sometimes both joint and several. But whether a covenant is joint or several depends upon the subject-matter of the covenant, and the in- terest that passes by it, and not upon the precise language made use of in the instrument of demise. The interest which the covenantees have in the performance of the covenant, will generally determine the question whether the right of action given by it is joint or several.* If the interest is joint, the action must be in the name of all the covenantees, although the words of the covenant are several. But if the interest of the covenantees is several, the covenant will be several, although the terms of it be joint.^ If two lessees covenant 1 4 Kent, Com. 459 ; Greenby v. Wilcocks, 2 Johns. 1 ; Birney v. Hann, 3 A. K. Marsh. 322; Chapman v. Holmes, 5 Halst. 20; Bingham v. Weiderwax, 1 N. Y. 509; Mitchell v. Hazen, 4 Conn. 459; Innes v. Ag- new, 1 Ohio, 386; Bickford v. Page, 2 Mass. 455. For the same reason, covenants that are broken before an assignment do not pass as incident to the land. Shelby v. Hearne, 6 Yerg. 512. But the law is otherwise in England and in the States of Indiana, Ohio, and Missouri, where these covenants are held to be continuing and running with the land. King- don V. Nottle, 4 M. & S. 53; Martin v. Baker, 5 Blackf. 232; Devore v. Sunderland, 17 Ohio, 52 ; Dickson v. Desire, 23 Mo. 151 ; and in Maine, by statute; Rev. Stat. o. 115, § 16. 2 Thompson v. Rose, 8 Cow. 266. » Dolph V. White, 12 N. Y. 296; Allen v. Culver, 3 Den. 284; Gorton ». Gregory, 3 B. & S. 90. * Slingsby's Case, 5 Co. 18, b ; Lahy v. Holland, 8 Gill, 449 ; James v. Emery, 8 Taunt. 245; Quackenboss v. Lansing, 6 Johns. 49; and per Denman, C. J., in Hopkinson v. Lee, 6 Q. B. 964, 970. * Per Gibbs, J., in James v. Emery, supra ; Jacobs v. Davis, 34 Md. 204; Withers ». Biroham, 3 B. & C. 254. The New York Code of Pro- SEC. I.] OF COVENANTS. 317 jointly and severally at the beginning of a lease, these words extend to all their subsequent covenants, notwithstanding the intervention of covenants on the part of the lessor.^ And where a person covenants with two or more, and with each of them, if each of the covenantees takes a several interest or estate, the covenant is several ; but where the interest is joint, the word each makes no difference, and does not consti- tute a separate covenant.^ It has been held, also, that a cove- nant with two and every of them was joint, though the two were several parties to the deed;^ for there is a difference where the parties covenant jointly and severally, and where the covenant is with them and every of them : in the former case the covenantees may have separate actions. And though a covenant with several persons be joint and several in the terms of it, yet, if the legal interest and cause of action be joint, the action must be brought by all the covenantees ; on the other hand, if the interest and cause of action be several, the action may be brought by one only, though the terms of the covenant be joint.* On a joint covenant by two, if one die, the survivor only can be sued at law ; and if both are dead, the representatives of the last living are alone answerable.^ § 265. Dependent, when each is Consideration of the other. — Whether covenants are dependent or not is to be collected from the sense and meaning of the parties, and not from any technical words contained in the instrument ; and their prece- dence depends on the order of time in which the intent of the transaction requires their performance, and not on the order cedure, § 111, embodies this doctrine, and provides that every action must be prosecuted in the name of the real party in interest. ^ Northumberland v. Errington, 5 T. R. 522. * Anderson v. Martindale, 1 East, 497; Mansell v. Burredge, 7 T. R. 352. » Southcote V. Hoare, 3 Taunt. 87; Sorsbie v. Park, 12 M. & W. 146. * Ludlow V. McCrea, 1 Wend. 228; Catlin v. Barnard, 1 Aik. 9. 5 Rowan v. Woodward, 2 A. K. Marsh. 140. A joint judgment can- not be sustained against two under-tenants, -who may be each of them liable for rent, where it appears that there was no joint occupation of the premises. Pierce v. Minturn, 1 Cal. 470. 318 COVENANTS AND CONDITIONS. [CHAP. VII. ill which they stand in the deed.^ If dependent, they are in the nature of conditions, and are precedent each to the other ; and in that case the non-performance of one is not only a defence to the exaction of performance by the other, but is ground for an action without a tender of performance by such other.2 If, however, they are independent, as where a land- lord engages to keep the premises in repair, or to place cer- tain improvements upon them within a specified time, his non-performance does in neither case discharge the tenant's covenant to pay rent.^ But where acts are to be done simul- taneously, and each is the consideration of the other, the cov- enants are dependent,* and neither party can recover against the other without showing performance or an offer to perform on his part. Our courts, too, are generally averse to holding covenants to be independent of each other, since it is mani- festly unjust that one party should refuse to be bound, and yet be allowed to enforce performance against the other ; nor will they give such a construction to them, unless the inten- tion of the parties is clearly manifest.* 1 Tompkins v. Elliott, 5 Wend. 496; Jones w. Barkle.y, 2 Doug. 684; Gardiner v. Corson, 15 Mass. 504; Parmele v. Oswego & S. R. R., 6 N. Y. 74; Grant v. Johnson, 5 id. 247; Sel'den i-. Pringle, 17 id. 458. Thus a covenant not to injure crops and a covenant to pay the amount of in- jury found by arbitrators are independent, and suit may be brought though there is no arbitration. Dawson v. Fitzgerald, 1 L. R. Exeh. Div. 257. ^ West u. Emmons, 5 Johns. 179; Sloeum v. Despard, 8 Wend. 615; Morris v. Sliter, 1 Den. 59; Couch v. Ingersoll, 2 Pick. 292. Where one agreed to labor, and the other to furnish a house for him during the time he was to labor, the covenants were held to be independent. Betts v. Perrine, 14 Wend. 219. A covenant by a lessor that the lessee paying the rent and performing the covenants shall quietly enjoy, is not a con- ditional covenant, and a plea stating the non-payment of the rent, or the non-performance of a covenant by the lessee (to insure), is no bar to an action by the lessee on the covenant for quiet enjoyment. Dawson v. Dyer, 5 B. & Ad. 584. ' Tibbitts V. Percy, 24 Barb. 39; Ellis v. M'Cormick, 1 Hilt. 313. And see post, § 331. * Dakin v. Williams, 11 Wend. 67; Day v. Essex Bank, 13 Vt. 97; Parker v. Parmele, 20 Johns. 136. To be dependent they must be mu- tual and go to the entire consideration . Butler v. Many, 52 Mo. 497. 5 Mecnm v. Peoria R. R. Co., 21 111. 533; Pegues v. Mosby, 17 Miss. 569; Clopton v. Bolton, 23 id. 78; Bangs v. Lowber, 2 Cliff. 157. SEC. I.] OF COVENANTS. 319 § 266. Void when Deed is void or there is no Estate in the Covenantor. — Covenants may be void when considered with reference to the insti'ument in which they are contained, as well as to the estate on which they depend. Thus, where a deed is void, all the covenants dependent on the interest professed to be conveyed by it are also void.^ And a lessee professing to assign over a term, which in fact had no exist- ence, is not liable at the suit of a subsequent assignee on a covenant for quiet enjoyment.^ The same rule holds where a lease is void for uncertainty ; as where one possessed of a term for years granted so much of the term as should be unexpired at the time of his death, and the grantee assigned and covenanted with the assignee for quiet enjoyment ; it was held that the uncertainty annulled the original lease, and that the covenant could not subsist without an estate, and as no estate passed, the assignee could not maintain an action.^ § 267. niegal, or against Public Policy, void. — A covenant to do anything, which upon the face of it appears to be prejudicial to the public interest, or is otherwise contrary to law, is void.* And so general is the approbation of this rule that courts will not aid either party in enforcing an illegal executory contract; noi', if executed, will they assist in setting it aside, or in recovering back what has passed under it.* So, if made within the prohibition of a statute, it is void, though the act be merely prohibitory in its terms.® * Soprani v. Skurro, Yelv. 18. ' Noke V. Awder, Cro. El. 373; s. c. id. 436. ' Capenhurst v. Capenhurst, T. Ray. 27; Waller v. Dean of Norwich, Owen, 186; Waters v. Same, 2 Brownl. & G. 158; Wade v. Merwin, 11 Pick. 280; Phelps v. Decker, 10 Mass. 267. * Lowe V. Peers, 4 Burr. 2225; Shep. Touch. 163; Pratt v. Adams, 7 Paige, 615; Smith v. Albany, 7 Lans. 14. 6 Nellis V. Clark, 20 Wend. 24; s. c. 4 Hill, 424; Chamberlin v. Barnes, 26 Barb. 160, 163. And the assignee of such a contract stands in no better position than his assignor. Saratoga Bk. v. King, 44 N. Y. 87. If part of an entire contract is void, the whole is void. Crawford v. Morell, 8 Johns. 253. * Norwich v. New Berlin, 18 Johns. 382; Powers v. Shepard, 48 N. Y. 540; Barton v. Port Jackson Co., 17 Barb. 397. 320 COVENANTS AND CONDITIONS. [CHAP. VIL And if a man covenants not to do a thing which it is law- ful for him to do, and a subsequent act of the legislature compels him to do it, the act repeals the covenaBt ; or if he covenants to do a certain thing, and then a statute is made, which compels him not to do it, the covenant is void. But if he covenants to do a thing which is unlawful at the time, and, afterwards, a statute makes it lawful, the covenant is not repealed.^ Or if he covenants to do a thing which is unlawful by statute, the covenant will not be made lawful by a repeal of the statute ; for the covenant was void ah initio? A covenant to do an impossible thing is also void ; but the impossibility must exist at the time of making the covenant, for if it be then possible, and afterwards becomes impossible, the covenantor will still be liable upon the express words of his covenant.^ And if the lease be void, as for an uncer- tainty in its continuance or otherwise, all the covenants contained in it are void likewise.* § 268. Oppressive, Equity will not enforce. — Although a covenant may not be absolutely void or illegal, it may yet be of so hard and oppressive a character, that a court of equity will refuse to enforce it. Thus, where a lease of mines con- tained a covenant that if the lessor should, at any time before the expiration or termination of the lease, give notice in writing to the lessee of his desire to take all or any part of the machinery, stock in trade, or implements, in or about the 1 Brick Presb. Ch. v. Mayor, 5 Cow. 538; Heskeath v. Grey, Buller, N. P. 165; 1 Salk. 198. But see Benson v. Dean, 3 Mod. 39. 2 Jaques v. Withy, 1 H. Bl. 65. * Blight ti. Page, 3 B. 8e P. 295 ; Paradine v. Jane, Aleyn, 26; Hickman V. Kaye, 55 Ind. 551. In Hills v. Thompson, 13 M. & W. 487, the lessee covenanted to raise a given quantity of coal or pay a certain rent. He was held to this, though there was not so much coal in the lot demised. In ClifEord v. Watts, L. R. 5 C. P. 577, however, an agreement by lessee to dig not less than 1000 tons of clay was held excused if there was not so much to be found. It is laid down that there are two classes of cases where the covenantor is held notwithstanding a physical impossibility: first, where it supervenes after the making of the covenant, whether by act of God or of some human agency other than the covenantee; second, where the covenantor warrants the possibility. * Soprani v. Skurro, Yelv. 18; Capenhurst ». Capenhurst, 1 Lev. 45. SEC. I.] OF COVENANTS. 321 mines, then the lessee would, at the expiration of the lease, deliver the articles specified in the notice to the lessor, on his paying the value of them, such value to be ascertained in the manner therein mentioned, — it was held to be a covenant so injurious and oppressive to the lessee that the court would not enforce it, or grant an injunction to prevent a breach of it.i § 269. How discharged. — How released by Act of Covenan- tee. — A covenantor cannot, by any act of his own short of performance, discharge, or in any manner qualify his express covenant, without the concurrence of the covenantee.^ Nor can the covenantee himself discharge it by an instrument which is not under seal.^ But any positive act of prevention by the covenantee will release the covenantor from perform- ance ; as, if a man covenants with another to collect his rents in a certain town, and then prevents or interrupts him in some way ; * or if a lessee for years covenants to drain the water out of the land, or to build a house before such a day, and the lessor enters before that day, and holds the lessee out.^ The covenant, however, would not be dispensed with, if the covenantee merely forbids the covenantor to proceed with the draining or building.^ § 270. Performance rendered Impossible by one Party, Rights of other Party may be Enforced. — Where the act of one party hinders the performance of a covenant by the other, performance is excused, and the thing contracted to be done by the former may be enforced by suit, without averring performance ; and proof of such conduct will support the averment of performance.^ So the omission of the covenantee to do some act necessary on his part to the execution of the 1 Talbot V. Ford, 13 Sim. 173. * Stone V. Dennis, 3 Porter, 231; Clancy v. Overman, 1 Dev. & B. 402. « Harper v. Hampton, 1 H. & J. 622. * Shaw V. Kurd, 3 Bibb, 371; Borden v. Borden, 5 Mass. 67. 6 Carrel v. Read, Cro. El. 374. ' Barker v. Fletwel, Godb. 69; Porter v. Stewart, 2 Aik. 427. T Marshall v. Craig, 1 Bibb, 379; Couch v. IngersoU, 2 Pick. 292; Farnham v. Boss, 2 Hall, 167. VOL. I. — 21 322 COVENANTS AND CONDITIONS. [CHAP. VII. covenant may also be a ground for excusing the covenantor ; as, if a man covenants to convey an estate to another for his life and the lives of two such other persons as the covenan- tee should name, and to deliver quiet possession before the Christmas following, the neglect of the covenantee to name the lives is a sufficient excuse for the non-performance of the covenant by the other also.^ So, where the whole considera- tion fails, and a stipulation becomes incapable of being sub- stantially performed in the manner intended by the parties, by the voluntary a,ct of either, the other is not bound to proceed, but is at liberty to decline performance on his part.* And if performance of another thing, or at another time, has been accepted in lieu of the thing or the time stipulated, it is a sufficient excuse for the non-performance of the letter of the contract.^ The voluntary destruction of one of the seals of a deed where the covenants are joint will discharge both covenantors ; but if the covenants are several, the breaking of one of the seals by a covenantee will invalidate the instru- ment only so far as concerns him whose seal is taken off.* But where the seals are torn off by a stranger, or by one with whom the instrument was left for safe-keeping, it does not vitiate the deed, and an action of covenant may still be maintained on it.° SECTION II. OP CONDITIONS. § 271. Defined. — In Law or Deed. — A condition is a qualifi- cation annexed to an estate by the grantor, whereby the estate may be enlarged, defeated, or created, upon an uncertain event. And to be effectual, the words made use of must import that 1 Twyford v. Buntley, Freem. 121; Parker v. Parmele, 20 Johns. 130; Edwick V. Hawkes, 18 Ch. D. 199. 2 Kleine Catara, 2 Gallis, 74. 8 Warren v. Maims, 7 Johns. 476. * Matthewson's Case, 5 Co. 22, b; Collins v. Prosser, 1 B. & C. 682; s. c. 3 Dow. & Ky. 112. ' Rees V. Overbaugh, 6 Cow. 746. And see ante, § 165. SEC. II.] OF CONDITIONS. 323 the vesting or continuance of the estate is to depend upon the supposed contingency. Its principles apply to leases, as well as to conveyances in fee. It may be inserted in the lease, or indorsed upon it, or even contained in a separate instrument, provided only, that such indorsement or separate instrument shall have been executed contemporaneously with the lease.^ Conditions, according to Littleton, are either in law or in deed. A condition in deed is that which is expressed in the deed by which it is created ; a condition in law is that which arises by necessary implication from the circumstances of the case. This latter doctrine of estates upon condition in law is said by Mr. Chancellor Kent to be of feudal extraction, and to result from the obligations arising out of the feudal relation. There was a tacit condition annexed to every tenancy, that the tenant should not do any act to the prejudice of the^rever^ sion. If he committed waste, or did any other act which, in the eye of the law, tended to defeat or divest the estate in re- version, the particular estate was forfeited. Even the rents and services of the feudatory were considered as conditions annexed to his' fief ; and for the non-payment or non-perform- ance* of any of them, the lord might re-enter without a res- ervation to that effect in the -deed creating the estate.^ A condition has strictly for its object the defeating or avoiding an estate ; but where an estate is to be created or enlarged, it is technically upon a limitation, the province of which is, to mark the period or event for the commencement, and the time of duration of the estate, whether it be in fee, for years, or for life, and therefore relates to the determinable qualities of an estate.^ > Griffin V. Stanhope, Cro. Jao. 45S; Craig v. Wells, 11 N. T. 315; Van Rensselaer v. Ball, 19 id. 100. In New York a stipulation for the payment of rent, in a conveyance in fee, with a right of re-entry to the grantor or his heirs in default of payment, is held to be a condition to the grant. Id. 2 4 Kent, Com. 121. 8 A clause in a lease, that the lessee will deliver up the premises and all the buildings and repairs put thereon by him, on three months' notice, and the payment to him of two hundred and fifty dollars, is not a condition but a covenant, and the lessee's estate is not determined by an offer of the lessor to pay him that sum of money. Wheeler v. Dascomb, 3 Gush. 285. 324 COVENANTS AND CONDITIONS. [CHAP. VII. § 272. In liavT, are absolute Limitations of the Estate. — In fact, are Provisos merely. — Conditions in law are of the nature of limitations, by which, upon the happening of a contingency, the estate becomes ipso facto terminated. As, if an estate be made to A. for years, if I. S. so long live, this is a limitation by which the estate of A. is terminated immediately upon the death of I. S. Or, if an estate be granted to a man and his wife during coverture, they have an estate for life, liable to become extinct upon the dissolution of the coverture; and upon such a limitation, the next subsequent estate becomes vested immediately upon the determination of the first estate, and the remainder-man may enter.^ A condition in a deed, however, is only a proviso that the grantee shall or shall not do a particular act, the breach of which will not, ipso facto or without entry, defeat the estate, but will only give the grantor, his heirs or assigns, a right to re-enter, and by such entry, avoid the estate.^ Partaking of the nature of the leases to which they are attached, a condition annexed to a term of years may be created by parol, when the lease is so created ; but a condition annexed to a freehold lease can only be by deed.^ § 273. Conditions and Limitations, Distinguished. — The prin- cipal difference between a condition and a limitation is, that a condition does not defeat the estate when broken, until it is 1 Co. Lit. 214, b ; Mary Portington's Case, 10 Co. 41 ; Shep. Touch. 117. 2 A clause in a lease providing for its termination at the lessor's elec- tion, on default of rent, although in the form of a mere stipulation, is still a condition, since it provides for ending the term and the forfeiture of the estate in case of a default. Horton v. N. Y. Cent. R. R. , 12 Abb. (N. C.) 30. So where the provision is that failure to pay shall be consid- ered an abandonment. Bowyer v. Seymour, 13 W. Va. 12. ' Co. Lit. 214, b. Where an estate is so expressly limited by the words of its creation that it cannot endure for any longer time than until the contingency happens upon which the estate is to fail, this is a limita- tion. On the other hand, when an estate is expressly granted upon con- dition in deed, the law pennits it to endure beyond the time of the con- tingency happening, unless the grantor takes advantage of the breach of condition by entering. And this rule applies to estates for years, even where the condition is that the estate shall be void. See post, §§ 288, 492, and notes. SEC. II.] OP CONDITIONS. 325 avoided by an act of the grantor or liis heirs ; but a limitation marks the period which is to determine the estate, without entry or claim,i and no act is necessary to vest the right in him who has the next expectant interest.'^ Whether the par- ticular form of words made use of amounts to a condition, a limitation, or a covenant merely, is matter of construction, depending upon the true intent and meaning of the contract. Thus, where a lease contained a clause that, in case of a vio- lation of any of its conditions, the relation of landlord and tenant should, at the option of the landlord, wholly cease, it was held that it did not amount to a conditional limitation, which would absolutely determine the estate by the mere breach of the condition.^ The intention of the party to the instrument, when clearly ascertained, will, of course, always control; but conditions and limitations are not to be raised by mere inference or argument. The distinctions on this sub- ject which are to be found in the books are very subtile and artificial ; and the construction of any contract will, after all, depend less upon artificial rules than upon the application of good sense and. sound equity to the object and spirit of the contract in each particular case.* 1 Stearns v. Godfrey, 16 Me. 160; Johnson v. Godfrey, 52 Tex. 222; 1 Prest. Est. 45. " Den V. Hance, 6 Halst. 244; 1 Prest. Est. 46. ' Beach ». Nixon, 9 N. Y. 35. And, in general, where a lease contains a clause that the landlord may re-enter upon the breach of a condition, the lease is not avoided by a breach, but only made voidable at his elec- tion; and the estate will continue after breach, unless the landlord exercises his election. Stuyvesant o. Davis, 9 Paige, 427; Arnsby v. Woodward, 6 B. & C. 519; Datin v. Cope, 2 Russ. 174; Meni v. Rath- bone, 21 Ind. 454. So though the stipulation is that it shall become void and lessor may re-enter. Doe v. Birch, 1 M. & W. 402; Jones v. Carter, 15 id. 718; Hayne v. Cummings, 16 C. B. n. s. 421; Penoyer v. Brown, 13 Abb. (N. C.) 82; Janes v. Emery Oil Co., 1 Penny. (Pa.) 242; and see Blair v. Peck, id. 247; post, §§ 288, 492, and notes. * 4 Kent, Com. 132. A covenant to surrender, &c. (on the lessor's paying for the improvements), is not conditional. Words thus paren- thetically inserted have never been adjudged a condition ; and to make them such, other words defining the meaning, and leaving no doubt of the intention of the parties, must be added. Tallman v. Coffin, 4 N. Y. 134; Jackson v. McClallen, 8 Cow. 295. The apt technical words to 326 COVENANTS AND CONDITIONS. [CHAP. VII. § 274. Implied Conditions. — Some conditions are implied in the relation of landlord and tenant without the insertion of any particular words in the lease ; as, that a tenant shall always have the quiet enjoyment of the premises. Also, that he shall not create a greater estate than he received from the grantor ; for, according to the common-law doctrine, if a tenant for life made a feoffment in fee, it produced a forfeit- ure of his estate.^ But this latter relic of feudalism has been abolished in most of the States, and would not now, probably, produce so unreasonable a result anywhere ; the grantee, in such case, taking the same estate that the grantor himself had, and no other.^ § 275. Precedent and Subsequent — Where the Condition must be performed before the estate can commence, it is called a condition precedent ; but where the effect of a eondi" tion is either to enlarge or defeat an estate already com- menced, it is called a condition subsequent. The former avoids the estate, by not permitting it to vest until literally performed ; while the non-performance of the latter defeats the estate by divesting the party of his title, and the interest already vested; because its continuance is made to depend upon the performance of the act, or the happening of the stipu- lated contingency. Thus if an estate be limited to A., upon his marriage with B., the marriage is a precedent condition, and until that happens no estate vests in A. Or if a man make a lease of land to I. S. for ten years, provided that if he pays the lessor a certain sum of money on a given day, he shall have the land to him and his heirs, this is also a condi- tion precedent, and must be fulfilled before the estate can take be used in creating a limitation upon the tei-m granted by a lease are "while," "as long as," "until," and "during." 2 Bl. Com. 155; Vanatta v. Brewer, 32 N. J. Eq. 26. 1 Co. Lit. 233, b. It was a rule arising out of reasons connected with military tenures, that if the feudal tenant denied that he held the feud of his lord, or did any other act inconsistent with his actual relations to the lord, such denial or inconsistency produced a forfeiture of his whole estate, and this principle applied to leases, as well as to estates in fee. 1 Cruise, Dig. 266, § 40. 2 Delancy v. Ganong, 9 N. Y. 9; 1 N. Y. R. S. 738, § 136. SEO. Il.J OF CONDITIONS. 327 effect. But where a lease is made for years, on condition that the lessee shall pay a sum of money on a certain day, or else his estate shall be void, this is a condition subsequent ; for here the estate vests, but its continuance depends upon the breach or performance of the condition.^ So the landlord's agreement to fit up a store and introduce the street water upon the premises is not a condition precedent to the land- lord's right to demand rent where the lessees have actually occupied.^ § 276. Inferred from Construction of Instrument and Intent of Parties. — No precise words are required to make a stipulation a condition precedent or subsequent ; and whether it shall be construed as a covenant or a condition does not depend on its position in the instrument, but upon the period fixed for per- formance, as well as on the nature of the transaction, and the intention of the party creating the estate. Thus where after the usual covenants by the lessee to pay rent, &c., it was stip- ulated that he might determine the lease during the term, on giving six months' notice from and after a fixed period, and the performance of his covenants, — it was held that such per- formance was a condition precedent to the exercise of his right to determine the lease ; ^ that conditions were to be construed to be either precedent or subsequent, according to the fair in- tention of the parties, as they could be collected from the in- strument ; that technical words, if there were any to render such intent doubtful, should give way to the intention ; and that it was impossible to read this lease without seeing that 1 Wells V. Smith, 2 Edw. 78; Taylor v. Mason, 9 Wheat. 325; Shep. Touch. 17. 2 M'Cullough V. Cox, 6 Barb. 386; Emmons v. Scudder, 115 Mass. 367. But if the lessee refuses to take possession he may resist the pay- ment of a note given for rent in advance. Hickman v. Rayl, 55 Ind. 551. » Hotham v. E. Ind. Co., 1 T. R. 645; Powers v. Ware, 2 Pick. 451; Goodvfin v. Lynn, 4 Wash. C. C. 714 ;, Tompkins v. Elliot, 5 Wend. 496; Gardner v. Corson, 15 Mass. 500; Niqol «. N. Y. & E. R. R., 12 N. Y. 121; Jones v. Barkley, 2 Doug. 684; Parmelee v. Osvpego R. R., 6 N. Y. 74; Grant v. Johnson, 5 N. Y. 247; Hopkins v. Young, 11 Mass. 302. In People's Bank v. Mitchell, 6 N. Y. W. R. 476, the tenant's covenant to pay taxes was held a condition precedent to the landlord's covenant to pay appraised value. 328 COVENANTS AND CONDITIONS. [CHAP. VII. the parties intended that the tenant should do every thing re- quired of him before he could put an end to the lease.' But it is only where covenants go to the whole consideration that they form conditions precedent, and where one party cove- nants to do one thing, the other party doing another, the engagement of the other is no condition precedent,^ but the * Porter v. Shepherd, 6 T. R. 665. This case was sustained in Friar B. Grey, 15 Q. B. 891; s. c. 5 Exch. 584, 597; affirmed finally in the House of Lords, 4 H. L. Ca. 565, after prolonged discussion. It carries this doctrine of law to an extreme, as the non-performance in any partic- ular of the lessee's covenants entirely defeats his rights under the lease, and it is maintainable only on the ground that a peculiar privilege was granted to him, and so was properly restrained by the condition. A con- trary doctrine, at least as respects rights of one party to the contract on the ordinary obligations of the other party, was laid down in Boone v. Eyre, 2 W. Bl. 1312; Carpenter v. Ci-eswell, 4 Bing. 409, and other cases. Thus, in Newson v. Smithies, 3 Hurlst. & N. 840, where lessor was to pay lessee for manure on his delivering up the premises, if in the mean- time he had observed "aH covenants, &o." it was held that observance of every one was not a condition precedent to his enforcing the lessor's cove- nant. Where, however, the obligation of one party is expressly to pre- cede the other's in performance, it forms a condition precedent; as where the lessee covenants to repair, the premises having first been repaired by lessor: Neale v. Ratcliff, 15 Q. B. 916; Hunt v. Bishop, 8 Exch. 675; Hutchinson v. Read, 4 id. 761 ; or where the lessee accepts the demise on consideration of lessor's repairing: Tidey v. Mallet, 16 C. B. k. s. 268; Coward v. Gregory, L. R. 2 C. P. 153 ; Wright v. Lattin, 38 111. 293; Hickman v. Rayl, 55 Ind. 551. But even here, if a concurrent obligation is expressed, though partly to precede the tenant's, it is no condition ; as where the lessor covenanted " first to repair and keep in repair." Can- nock V. Jones; 3 Exch. 233; Dean of Bristol v. Jones, 1 Ellis & E. 484. And see American cases to the same effect. Harding v. Kretsinger, 17 Johns. 293; Gazley v. Price, 16 id. 267; Jones v. Gardner, 10 id. 266; Hopkins v. Young, 11 Mass. 302; Gardiner v. Corson, 15 id. 500; North- rnp V. Northrup, 6 Cow. 296; Dox v. Day, 3 Wend. 356; Lewis v. Weldon, 3 Band, 71; Conn v. Lewis, 5 Litt. 66; Alexander v. Mann, 6 T. B. Monr. 360; Bank of Columbia i'. Hagner, 1 Pet. 464. Upon the principle laid down in Porter v. Shepard, supra, it is held that perform- ance of all the covenants in a leasgij^under which a lessee is in possession with privilege of renewal at the end of the term, are conditions precedent to the exercise of the right of renewal. Behrman v. Barto, 54 Cal. 131. 2 Tileston u. Newell, 13 Mass. 406; Carpenter v. Creswell, 3 Bing. 409; Pepper v. Haight, 20 Barb. 429; Bennett v. Pixley, 7 Johns. 249; Grant v. Johnson, 5 N. Y. 247. SEC. II.] OF CONDITIONS. 329 covenants are mutual.^ So a grant of land to a town, to use and improve for ever, and not to be sold, but rented out, and the rents applied to the support of the minister in the town ; or a grant for the purpose of building a school-house for the use of a school, provided it be built on a certain site, — is, in either case, on a condition subsequent.^ § 277. Precedent, how Construed. — Equitable Relief from. — Conditions precedent which are to create an estate will al- ways receive a liberal construction, for the purpose of carrying into effect the intention of the parties ; and if the condition is performed as near the intent as possible, it will usually be sufficient ; but conditions which are to defeat an estate will be construed strictly.^ From the nature of a condition, it is obvious that equity cannot relieve from the forfeiture of an estate which arises upon a condition precedent unperformed. But it is different as to the breach of- a condition subsequent which would work a forfeiture or divest an estate ; for there a court of equity, acting upon the principle of compensation, will interpose, and prevent the forfeiture or divestment, pro- vided that satisfactory amends can be made in damages.* 1 Boone v. Eyre, 2 W. Bl. 1312; Carpenter v. Creswell, supra; Hick- man V. Rayl, supra; Doe i-. Kennard, 12 Q. B. 244; where there was a proviso in the lease that lessee should surrender, and lessor might take possession on giving notice and paying compensation, and it was held that payment of the compensation was no condition precedent. See also I'arsons v. Miller, 15 Wend. 561; Bavtlett v. Greenleaf, 11 Gray, 98, where the lessee's covenant to pay rent was held no condition precedent to lessor's covenant for quiet enjoyment. So, on a stipulation in a five years' lease for the lessee to have the privilege of five years more, provided all improvements were done by him, it was held these might be done during the latter five years. Palethorp v. Bergner, 52 Pa. St. 149. 2 Hayden v. Stoughton, 5 Pick. 528 ; Brigham v. Shattuck, 10 Pick. 309. * Ld. Ray. 385; Co. Lit. 220, a. Hence a reference in a lease to a prior lease and its condition will incorporate the condition in relation only to such covenants as it applied to in the former lease. Crawley v. Rice, L. R. 10 Q. B. 302. So a condition against using demised premises for other purposes than a post-office is not broken by the issue of dog licenses and taking pay therefor. Wadham v. Postm. Gen., L. R. 6 Q. B. 644. * Walker ». Wheeler, 2 Conn. 299; Wells v. Smith, 2 Edw. 78; Scott V. Tyler, 2 Bro. C. C. 431; Duffield v. Elwes, 1 Sim. & S. 239. 330 COVENANTS AND CONDITIONS. [CHAP. VII. § 278. Words to create. — The words generally used to make a condition are, upon condition^ ov provided that ; but the words made use of may Import both a condition and a covenant. As, if in a lease for years the words were, provided always, and it is covenanted and agreed between the parties that the lessee shall not alien, there is both a condition by force of the proviso, and a covenant by virtue of the other words.^ So if a power of re-entry for the breach of a covenant is added to such covenant, it has the force of a condition.^ If it is doubtful whether the clause in question is a condition or a covenant, the court will incline to the latter construction ; for a covenant is preferable for a tenant. But where a man cove- nanted and agreed to let his land to another for five years, provided always that the lessee should pay him annually, dur- ing the term, a certain sum of money, it was held to be a covenant for the payment of rent, as well as a condition, the non-performance of which might defeat the estate.* § 279. Effect of certain Words to Create. — The WOrd proviso in a lease implies a condition, unless there are subsequent words which change it into a covenant, or a penalty is an- nexed for non-performance. But where the proviso is that the lessee shall perform or not perform a thing, and no pen- alty is annexed, it is a condition ; upon annexing a penalty, it becomes a covenant.^ The words yielding and rendering do not amount to a condition, and merely import a covenant to pay rent, unless the landlord would otherwise be without remedy in case the rent should not be paid.^ Mere words in restraint of a grant do not make a condition ; as, if the lessor grants firewood, provided he do not take it of the great trees, it I Crawley v. MuUins, 48 Mo. 517. ■"■ Co. Lit. 203, b ; Doe v. Watt, 8 B. & C. 308. But mere words of contract will not make a condition if there is no clause of re-entry. Shaw V. Coffin, 14 C. B. N. s. 372; Crawley v. Rice, L. E. 10 Q. B. 302. * Jackson v. McClallen, 8 Cow. 295. And such a clause will apply to negative covenants. Wadham v. Postm. Gen., supra. * Livingston v. Stickles, 8 Paige, 398. « Jackson v. Allen, 3 Cow. 221; Gray v. Blanchard, 8 Pick. 284; Simpson v. Titterell, Cro. El. 242. * Delancy v. Ganong, 9 N. Y. 9. SEC. II.J OP CONDITIONS. 331 may be waste, but no cause of re-entry, if he does take of the great trees. Nor will insensible words make a condition ; as a lease of forty years to a woman upon condition if she lives so long and keeps herself such, without further explanation as to how she is to keep herself ; for the intent is uncertain. ^ § 280. Created by Separate Instrument. — Time within 'which to Perform. — A lessor having the unlimited disposal of his property may annex whatever conditions he pleases to his grant, provided they are not illegal or inconsistent.^ But they can only be annexed to an estate at the time of its creation, and may be by a separate deed, distinct from that which creates the estate, provided it is sealed and delivered at the time of executing the principal deed.^ If written on the back of a lease, before or at the time the lease is executed, it is valid.* Where the prompt performance of a condition is ne. cessary, to give the grantee the whole benefit designed to be secured to him, or where immediate enjoyment constituted the motive for the contract, the grantee forfeits the estate unless he performs the condition in a reasonable time.^ But if no time is limited for the performance of the condition, the grantee has, in general, his whole lifetime for performance.^ 1 Com. Dig. Condition (A.), 6; 3 Leon. 16 ; Hardy v. Seyer, Cro. El. 414. A covenant to surrender, &c., "on the lessor's paying for the im- provements," is not conditional. Words thus parenthetically inserted have never been adjudged a condition; and to make them such, other words, defining the meaning and leaving no doubt of the intention of the .parties, must be added. Tallman v. Coffin, 4 N. Y. 134; Jackson v. McClallen, 8 Cow. 295. A stipulation at the end of a lease, not to make any alterations in the buildings without the consent of the lessor, is not a condition for the breach of which the lease will be forfeited. Jackson v. Harrison, 17 Johns. 66. 2 Lord Cromwell's Case, 2 Co. 69 ; Roe v. Galliers, 2 T. R. 133. A landlord may annex to his lease whatever conditions he pleases, provided they are not contrary to reason or public policy. Brugman v. Noyes, 6 Wise. 1. A variety of provisos and conditions will be found in Appendix, No. XI. 8 Griffin v. Stanhope, Cro. Jac. 456 ; Goodright v. Mark, 4 M. & S. 30. * Id. ; Fowell v. Fori'est, 2 Saund. 48; Shep. Touch. 126. 6 Hamilton v. Elliott, 5 S. & R. 384. « Per Marshall, C. J., Finlay v. King's Lessee, 3 Pet. 376. 332 COVENANTS AND CONDITIONS. [CHAP. VII. And if a precedent act is to be performed at a certain time or place, and a strict performance is prevented by the absence of the party who has the right to claim it, the law will not permit him to set up the non-performance of the condition as a bar to the responsibility which his part of the contract had imposed upon him.^ §281. Impossible Conditions Void. — If a condition subse- quent is impossible at the time of its creation, or becomes so afterwards by the act of God, or the law, or of the grantor himself ; or if it is contrary to law, or repugnant to the nature of the estate granted, — it is void, and the estate is absolutely vested in the grantee.^ If a condition is in the disjunctive, giving the obligor liberty to do one thing or another at his election, and one part becomes impossible by the default of the other party, he is not bound to perform the other part- As if it be to make assurance to A. as he shall devise ; or, upon default, to pay five hundred pounds ; if A. does not tender an assurance, the other party need not pay the money. The same principle applies where one part becomes impossible by the act of God. But if one alternative was impossible at the time of making it, the obligor is still bound to perform the other. And where a lease was made to A., B., and 0., with a proviso that if C. should demand any profits of the land, or enter into the same during the lifetime of A. or B. (who were his father and mother), that then the estate limited to C. should cease, and be utterly void, it was resolved that this was a void condition, forasmuch as it was repugnant to the estate limited.^ § 282. Breach of. — When Equity will enforce Forfeiture. — A mere personal disability will not be allowed to excuse the non- performance of a condition ; and therefore, where an estate 1 Williams v. Bank, 2 Pet. 102. 2 People V. Manning, 8 Cow. 297; McLachlan v. McLachlan, 9 Paige, 534; Holland v. Bouldin, 4 T. B. Monr. 147; Co. Lit. 206, a; Doe v. Car- ter, 8 T. E. 57; Seovel v. Cabell, Cro. El. 107; Merrill v. Emery, 10 Pick. 507. 8 Com. Dig. Condition (K.), 2; Taylor v. BuUen, 6 Cow. 627; Moore V. Savil, 2 Leon. 132. SEC. II.] OF CONDITIONS. 333 is granted to an infant ov feme covert on condition, tliey are bound to strict performance ; and, if broken during the mi- nority of the infant, the land is lost for ever.^ If it be a con- dition precedent, which is impossible, the grant is absolutely void,, and the estate can never arise.^ But as to a condition subsequent, which is never favored in law, its validity will de- pend upon its being such as the law will allow to divest the estate. And it is to be observed that a court of equity will never lend its aid for the purpose of divesting an estate, for the breach of a condition subsequent ; because it tends to de- stroy estates, which it is the policy of the law to uphold ; the relief which that court affords, being confined to cases where the forfeiture has been the effect of inevitable accident, and the injury produced capable of compensation in a pecuniary point of view.^ § 283. Repugnant or against Public Policy, void. — In reference to estates which are determinable upon certain conditions, it is to be observed, also, that a condition must not be repugnant to the nature of the estate, or to the language of the grant ; * nor must it be against the policy of the law, as an unwarrant- able restraint upon trade, or marriage, or the power of aliena- tion. Neither must it be a stipulation for that which is immoral. Conditions of this class are either to do something that is malum in se or malum prohibitum : to omit the doing of something that is a duty ; or else to encourage such crimes and omissions. Such conditions the law will always, and without any regard to circumstances, defeat ; being concerned to remove all temptations and inducements to crime.* § 284. Against Alienation, when Void. — Itis a general rule, also, that a condition upon a feoffment in fee not to alien at all is void for repugnancy ; for a man cannot dispose of his 1 Williams v. Fry, 2 Lev. 21. 2 Taylor v. Mason, supra; Arnold v. United States, 9 Cranch. 104; Weathei-all v. Geering, 12 Ves. 504; Mookley v. Riggs, 19 Johns. 69. ' Fallen v. Ready, 2 Atk. 587. * Depeyster v. Michael, 6 N. Y. 467. 6 Mitchell V. Reynolds, 1 P. Wms. 189. 834 COVENANTS AND CONDITIONS. [CHAP. VII. whole interest in a thing, and yet retain a control over it. But at common law, a grantee may be restrained from assign- ing for a particular time, or to a particular person ; and so a condition in a lease that the grant shall become void, if the grantee becomes a bankrupt, has been held valid.^ Yet Chancellor Kent questions whether a restraint of alienation to a particular person, who is named, would be a valid condition at the present day. It is certain, however, that coui'ts now look with great jealousy upon all restraints on the free ex- ercise of that inherent right of alienation which belongs to all estates in fee. For this reason, a devise of lands to the testator's children, in case they continued to inhabit the town of Shirley, otherwise not, was in New York considered to be unreasonable, and repugnant to the nature of the estate, and therefore entirely void.^ So, where a lease in perpetuity con- tained a condition and covenant, that, upon every sale of the premises, the lessee or assigns should obtain the consent in writing of the lessor, and offer him the pre-emptive right to purchase, and if, after such offer, the premises were sold to any other person, one-tenth of the purchase-money should be paid to the lessor ; and the lessee made a contract to sell, and agreed to pay the tenth of the sale to the owner of the rent and reversion, the purchaser actually taking possession under his contract to purchase, — it was held that the lessor had no remedy in equity ; that such a covenant and condition was a restraint in the nature of a fine upon alienation ; and that a court of chancery would not therefore interfere to enforce the performance of such covenants and conditions in cases where the landlord, by the terms of his lease, had not by his con- tract secured to himself a legal right, as distinguished from an equitable claim, to enforce a hard bargain for v/hich the law gave him no right of action.^ § 28-5. Cases in which held Valid. — In another case which previously arose in the Supreme Court of the same State, on a 1 Doe B. Carter, 8 T. R. 57; Co. Lit. 223, a; Mary Portington's Case, 10 Co. 38, b. ^ Newkerk v. Newkerk, 2 Caines, 345. ' Livingston v. Stickles, 8 Paige, 398. SEC. II. J OF CONDITIONS. 335 similar covenant in a lease, to a man, his heirs and assigns forever, paying a certain rent, and that in case the lessee should propose to sell, he would first offer the property to the lessor, and if the lessor did not purchase, the lessee would pay him one tenth of the purchase-money, and if the lessee did not keep and perform all the conditions, the estate should cease, and the lease become void, — it was held that the con- dition was a lawful and valid condition, and that the nature of the estate created by such lease was a fee-simple condi- tional, or a fee-simple subject to be defeated upon a condition subsequent, by the failure or non-performance of which an estate already vested might be defeated. It was also said in this case that if the condition had been general, not to alien, it would have been necessarily repugnant, and therefore void ; but that being a grant coupled with the condition that if the tenth of the proceeds of sale was not paid to the lessor the estate should be defeated, the lease would be forfeited upon a breach of such condition, and the lessor might re-enter.^ But the Court of Appeals has since decided that the reservation in a lease in fee, of a pre-emptive right of purchase by the grantor and his heirs in case of a sale by the grantee, his heirs or assigns, and the reservation by the grantor of a right to a portion of the sale-money on such sale by the grantee, with a condition of re-entry if these terms were not complied with, are void, as repugnant to the estate granted, and as placing an illegal restraint upon the power of alienation.^ 1 Jackson v. Schutz, 18 Johns. 174. " Depeyster v. Michael, 6 N. Y. 467. In this case the lessor, in addi- tion to an annual rent, reserved a pre-emptive right on paying three quarters of the price demanded, otherwise, one fourth part of all moneys which should arise from the selling, renting, or disposing of the lands by the lessee, his heirs or assigns, when and as often as the same should be sold, rented, or disposed of. It seems from this case that, during the New York colonial government, the English statute of quia emptores was not regarded as in force. The object of that statute was to support mili- tary tenures, by secm-ing to the chief lords of fees their escheats, ward- ships, &c. ; and by transferring the tenure of lands from the mesne to the chief lords the statute entirely divested the former of any reversion whereby, on a forfeiture, the estate might revert to him. It was compe- tent, therefore, for our citizens, unrestrained by such a law, and under the principles of feudal tenures, admitting of such reversion, to convey 336 COVENANTS AND CONDITIONS. [CHAP. VII. § 286. Against doing Particular Acts. — If the condition is, that the lessee will not do any particular act without leave from his lessor, when leave is once granted the condition is gone forever ; for a condition must be construed strictly, and by one license it is satisfied.^ But the license must be such as is required by the lease ; and, therefore, where the lease lands in fee, to be holden directly of them and their heirs; and such grantors, being entitled to the reversion or escheat on failure of the issue of the grantee, could lawfully annex conditions to the power of alienation. But the acts of 22 October, 1779 (1 Jones & Var. 44), transferring the seigniory of all lands, escheats, &o., from the king to the people of this State, and the act of 20 February, 1787, concerning tenures (1 R. L. 70), put an end to all feudal tenures between one citizen and another, and substituted in their place a tenure between each landholder and the people in their sovereign capacity, and thus removed the entire foundation on which the right of the grantor to restrain alienation formerly rested. Those statutes are in their terms restrictive, and since their passage all restraints upon alienation contained in conveyances in fee, whether exe- cuted prior or subsequent to the date of those acts, are held to be void. But though this decision has not been qualified in the particular point decided, it has yet since been held that the statute of quia emplores was in force in New York before the statutes of 1779 and 1787, and also that the reservation of rent creates sufficient privity, notwithstanding the stat- ute, to enable the lessor's assigns to bring covenant or ejectment against the lessee and his assigns for the rent reserved. Van Rensselaer v. Hays, 19 N. Y. 68; Same v. Ball, id. 100; and see ante, § 261, and notes. 1 Dumpor's Case, 4 Co. 119, b: Bleecker v. Smith, 13 Wend. 530; Dakin v. Williams, 17 Wend. 447; 8. c. 22 id. 201. "The profession have always wondered at Dumpor's Case," said Sir. J. Mansfield, in Doe V. Bliss, 4 Taunt. 735; "but it has been law so many centuries, that we cannot now reverse it." So, per Ld. Eldon, in Bummel v. Macpherson, 14 Ves. 173; and Nelson, J., in Dakin v. Williams, supra. The law has been changed in England by statute 22-23 Vict. c. 35; 2.3-24 Vict. c. 38; and a first license will only discharge the condition by express words to that effect. Dumpor's Case has, however, been recognized and followed in Lynde v. Hough, 27 Barb. 415, 422; Siefke v. Kock, 31 How. Pr. 883; McKildoe v. Darracott, 13 Gratt. 278; Dougherty v. Matthews, 35 Mo. 520; Pennock v. Lyons, 118 Mass. 92; and see Gannett v. Albree, 103 id. 872 ; and Chipman v. Emerio, 5 Cal. 49. The doctrine, of course, applies only to negative covenants, for a license is a permission to do a prohibited act, not to omit an affirmative duty. But it makes no difference whether the condition relates to a single or continuous duty. A license for one breach in the manner contemplated by the lease will discharge the whole condition. SEC. II.] OP CONDITIONS. 337 required the license to be in writing, a parol license was held to be insufficient to satisfy the condition or otherwise subse- quent assignment ; ^ and if a license has been used as a snare, or under circumstances which amount to fraud, equity will give relief.^ § 287. Forfeiture for Breach of, how 'Waived. — The forfeit- ure of a lease by breach of any other condition may be waived, in the same manner as a forfeiture for non-payment of rent, or a notice to quit ; for if the landlord subsequently does any act, with knowledge of the breach, which can be considered as an acknowledgment of a tenancy still subsisting, he will be held to have waived the forfeiture ; and if the condition imposes a single obligation, and must be taken wholly if at all, the con- dition itself is discharged by such waiver, as much as by a license.^ We shall have occasion, however, to treat of this matter more fully, when we come to, consider the subject of terminating a lease by forfeiture, and will not, therefore, pursue it any further at present. § 288. Subsequent, Breach of, how AWaived. — In general, where an estate is defeasible on the non-performance of a condition subsequent, it is not absolutely defeated upon the happening of the contingency on which it is defeasible ; for the estate will continue afterwards, unless the grantor or his heirs take advantage of the breach of condition by an actual entry, which is generally necessary to revest an estate of freehold,* if the grantor is not already in possession.^ A different rule, however, formerly prevailed with regard to a term of years, and it was considered that on a breach of con- 1 Roe V. Harrison, 2 T. K. 425; Seers v. Hind, 1 Ves. 294. 2 Richardson v. Evans, 3 Madd. 218; Macher v. Found. Hosp., 1 Ves. & B. 191; Roe v. Harrison, 2 T. R. 425. * 1 Smith's Lead. Cas. 20, a; Lloyd v. Crispe, 5 Taunt. 249; MoGlynn V. Moore, 25 Cal. 384; Conger v. Duryee, 90 N. Y. 594. As to -what are single, and what continuous conditions, see post, §§ 497-501. * Canal Co. v. Railroad Co., 4 Gill & J. 121; Willard v. Henry, 2 N. H. 120; Chalker v. Chalker, 1 Conn. 79. ' Lincoln Bank v. Drummond, 5 Mass. 321; Rollins v. Riley, 44 N. H. 9. VOL. I. — 22 338 COVENANTS AND CONDITIONS. [CHAP. VH. dition the lease was absolutely determined, and could not be set up again by any act, even on the part of the landlord. But this doctrine is no longer recognized.^ § 289. Substantial Perfonnance of, Sufficient. — The substan- tial performance of a condition is generally sufficient ; and its non-performance may be excused when occasioned by the act of the law, or of the other party. In general, also, if a con- dition becomes impossible by the act of God, the obligation is discharged. As, where the obligee in a condition subsequent died ; or a man covenanted to build a house before a certain day, and afterwards the plague came there before that day and continued there until after the day, the condition was in each case held to be dispensed with.^ So where the law for- bids the act conditioned to be performed, performance is excused.^ The same result follows, where the party accepts another thing in satisfaction,* or is himself in default ; as where the condition is the payment of a sum of money, and the payee is out of the commonwealth ; ^ or the obligation is to build or repair a house, and the obligee hinders or forbids the performance. But where the lessee covenanted to drain the water upon the land before a certain day, and the lessor entered upon the premises before that day, and continued there until the day was past, it was held to be no excuse unless it appeared that the lessor interfex'ed with his operations.^ 1 See post, §§ 412, 492, and notes. 2 Merrill v. Emery, 10 Pick. 507; 1 Roll. Abr. 450. 8 Holland v. Bouldin, 4 T. B. Monr. 150. * Brown v. Vandergrift, 80 Pa. St. 142. Here in a mining-lease a clause of re-entry, if mining ceased for twenty days, was held not abro- gated by a clause that a certain named sura shall be paid for every day until mining began. See Munroe v. Armstrong, 96 Pa. St. 307. 6 Williams v. Bant U. S., 2 Pet. 102; U. S. v. Arredondo, 6 id. 745; BradStreet v. Clark, 21 Pick. 389. 6 Carrel v. Read, Cro. El. 374; Jackson v. Crafts, 18 Johns. 110. And where in a mining-lease it was stipulated that the ore was to be worked in a "good and husbandlike" manner, it is no excuse if it cannot be worked at a profit, and a delay to take any ore out for sixteen months will work a forfeiture. Stockb. Iron Co. v. Cone Iron Works, 102 Mass. 80. SEC. II.] OF CONDITIONS. 339 § 290. Clause of Re-entry in Lease. — In every well-drawn lease it is the invariable practice to insert a clause of re-entry for a breach of its covenants or conditions. This practice is said to have grown out of an ancient process for the recovery of rent by writ of cessavit, which in fact amounted to a dis- tress of the whole of the tenant's land, by seizing and holding it until he paid the arrearage of rent. For, by feudal law, after the lord had granted out his lands, he still had the right of seigniory, as well as the right to all the other services re- served upon the grant ; and in case of a failure in any of them, he might enter upon and take possession of the feud. This proceeding, however, was taken away by the statute of 52 Hen. III., which prohibited a distress of the freehold, except by the king's writ, and left the tenant's chattels, as the only subject for the lord's distress. After which, and as a convenient sub- stitute therefor, the practice was introduced, on granting a lease, of inserting a power of re-entry for the non-payment of rent ; which practice gradually extended itself to other cove- nants and causes of forfeiture besides the non-payment of rent.^ § 291. Re-entry Clause essential to support Action of Covenant. — This clause enables the lessor, his heirs or assigns, in case of a breach of condition or covenant, to re-enter upon the de- mised premises, and eject the tenant, leaving both parties in the same situation as if the lease had never been granted.^ The grantor and his heirs may still enter, and take advantage 1 Hargrave's note to Co. Lit. 142, a. The right of re-entry ia not a reversionary or other estate in the land, but is a mere right of action, and, if enforced, the grantor of the estate would be in by the forfeiture of the condition, and not by a reverter. At common law, this right of action could not be granted over, and it is only by force of the statute that the assignee of the lessor can now re-enter for condition broken. But the statute did not intend to convert this right into a reversionary estate, as has been sometimes supposed. 2 Johns V. Whittey, 3 Wils. 127; Doe v. Phillips, 2 Bing. 13. The right to re-enter for non-payment of rent is not incident to the estate of the lessor at common law, but must be reversed by deed; and all the con- ditions or stipulations annexed thereto must be strictly followed. Smith V. Blaisdell, 17 Vt. 199. 340 COVENANTS AND CONDITIONS. [CHAP. VII. of a breach of condition, or other common-law forfeiture, by ejectment, without this clause ; ^ but in case of a breach of covenant, in the absence of a proviso for re-entry, the lessor would possess no such power ; for the mere breach of a cove- nant enables him to sue for damages only.^ Any mere cove- nant without the clause authorizing a re-entry would afford but an indifferent security to the landlord, from the difficulty of ascertaining the actual extent of damage done by a breach of many of the covenants ; or the inability of a tenant to pay the pecuniary recompense therefor, after it shall have been recovered in a suit at law. The principle applies also to the case of a tenant, holding under a mere agreement for a lease, which specifies the covenants to be inserted in the lease, and that there shall be a power of re-entry for a breach of them.^ § 292. Re-entry to be made during the Term. — But a proviso for re-entry operates only during the term, and cannot be taken advantage of after its expiration. Thus, where a lease of ninety^ine years if A. and B. should so long live was granted, with a proviso for re-entry in case the lessee should underlet the premises for the purposes of tillage, and an undertenant of the lessee ploughed up and sowed the land, but the lessor did not enter during the continuance of the estate, — it was held, in an action of trespass by the lessor against the under- tenant, for entering upon the land after the determination of the estate, for the purpose of carrying away the emblements, that the plaintiff, having never been in possession by right of 1 Wigg V. Wigg, 1 Atk. 382; Doe v. Watt, 1 Mann. & K. 694. 2 Pells V. Brown, Cro. Jac. 590; Delancy v. Ganong, ante; Page v. Hay ward, 11 Mod. 61, per Holt, C. J. ; Brown v. Kite, 2 Overt. 233; Bookover v. Post, 1 Dutch. 285; Fox v. Brissac, 15 Cal. 223; Johnson v. Gurley, 52 Tex. 222. A proviso for re-entry in a lease is to receive a reasonable construction like other contracts> and is not to be construed with the strictness of conditions at law. Doe v. Elsam, 1 Mood. & M. 189. A lessee was to incur a forfeiture if he did not do certain repairs to the satisfaction of the surveyor of the lessor. He did the repairs, but the lessor's surveyor was not satisfied. Held, that if the jury thought the surveyor ought to have been satisfied, that would be sufacient, and there would be no forfeiture incurred. Doe v. Jones, 2 C. & K. 743. 3 Doe V. Breach, 6 Esp. 106; Doe v. Watt, 8 B. & C. 808; Doe v. Kneller, 4 C. & P. 3. SEC. II.] OP CONDITIONS. 341 re-entry for condition brofeen, could have no advantage there- of, and that the defendant, who ploughed and sowed the land, was entitled to take the emblements.^ § 293. Who may reserve Right of Re-entry. — A power of re- entry, like a condition, can only be reserved to the lessor and his heirs, and not to a stranger, even by express words. As-, where a lease was made by a trustee, reserving a right of re- entry upon a breach of covenant to the cestui que trust ; foras- much as the legal estate was in the trustee, the reservation was held to be void.^ So, where a person devised leasehold property to his wife to receive the rents during her lifetime, and the surviving trustee and the widow afterward granted a lease of the premises, rent to be paid to the widow, and the lessors to have a power to re-enter for the non-payment of rent, it was held that, being a stranger to the legal estate, the power of re-entry could not be reserved to the widow, and that the lease operated as a lease by the trustee, with a simple con- firmation by her .3 For a similar reason, this power is not available by the executor of one who has granted land in fee, subject to an annual rent ; for, as executor, he could not be vested with the estate. It would be otherwise, however, if the testator held an estate for years in the premises, and had leased them for part of the term ; since the residuary estate in that case would belong to the executor.* And a power to a par- ticular person to enter will not extend to his executor, unless 1 Johns ». Whittey, 3 Wils. 127. A right of re-entry may be effectu- ally given upon breach of covenants, including a covenant to pay rent, as well as in terms for non-payment of rent; and though a general clause of re-entry can extend only to cases not otherwise specially provided for, yet such a general clause is compatible with a prior clause giving a right of re-entry also after a certain period of default in the rent. Van Rensse- laer V. Jewett,.2 N. Y. 141. 2 King's Chapel v. Pelham, 9 Mass. 501 ; Doe v. Lawrence, 4 Taunt. 23; Jackson v. Topping, 1 Wend. 388. 8 Doe ». Goldsmith, 2 C. & J. 674 ; and see Doe v. Adams, id. 2S2. A proviso for re-entry,, if the lessee shall make default in the performance of any other covenants, which on his part are or ought to be performed or kept, applies to and forbids the breach of a negative as well as of a posi- tive covenant. Croft v. Lumley, 6 H. L. Ca. 672. * Van Rensselaer v. Hayes, 5 Den. 477. 342 COVENANTS AND CONDITIONS. [CHAP. VII. SO mentioned.^ But a residuary devisee may take advantage of such a condition, annexed to a specific devise, if the devisor do not otherwise limit over the contingent interest in the es- tate thus specifically devised.^ And so may an assignee of the reversion, as we shall presently see, by force of the statute of Hen. VIII. ; yet, as a general rule, when no words of limita- tion are mentioned, the law will reserve the benefit of the condition to the heirs of the lessor.^ § 294. Rights of Lessor's Reversioner. — To enable a reversioner to avail himself of a forfeiture, upon a condition broken, it is necessary, according to the English cases, that he should have the same estate in the lands at the time of the breach that existed when the condition was created ; for an extinguish- ment of the estate in reversion, in respect of which the con- dition was made, will extinguish the condition also.* As, where a lease was made for a hundred years, and the lessee executed an under-lease for twenty years, rendering rent, with a clause of re-entry, and afterwards the original lessor granted the reversion in fee, and the grantee purchased the reversion of the term, it was held that the grantee should not have either the rent or the power of re-entry ; for the reversion of the term to which they were incident was extinguished in 1 Hassel v. Gowthwaite, Willes, 500. A right of re-entry for the non- payment of rent may be reserved upon a conveyance in fee, and is assign- able with the rent. Van Rensselaer v. Ball, 19 N. Y. 100. 2 Hayden v. Stoughton, 5 Pick. 528; Brigham v. Shattuck, 10 id. 306; Clapp V. Stoughton, id. 463; Austin v. Cambridgeport, 21 Pick. 215. In New York, the right of a devisee to take advantage of a condition re- served in a grant in fee by his devisor seems established both by statute and by common law. See cases cited, post, § 295, note; but the courts do not limit the doctrine to devisees, but apply it to all assignees. In Mc- Kissick V. Pickle, 16 Pa. St. 140, the court seem to consider the old law restricting the reservation of conditions to, and enforcement of them by, the grantor's heirs alone, to be obsolete, and that an assignee may take advantage of any condition so reserved. Neither the executor nor a devisee of one who has granted land in fee subject to rent, can maintain ejectment for rent in arrear which became payable in the lifetime of the testator, but only for such as accrued since the will took effect in his favor. Van Rensselaer v. Hayes, supra. « Co. Lit. 214, a; 3 Atk. 134. * Dumpor's Case, 4 Co. 119, b. SEC. II.] OF CONDITIONS. 343 the reversion in fee.^ It is not, however, necessary that the party claiming should have an actual reversion, remaining in the land after the grant ; for if a lessee for years assign his whole term to another upon condition, he may still re-enter for hreach of the condition, though he may have parted with his whole term.^ Yet a third person cannot enter, unless he comes in under the lessor ; therefore, if a lessee for twenty years make a lease for ten on condition, and then surrender to him in reversion, the reversioner, heing in of a paramount estate, cannot take advantage of the condition.^ § 295. Of Lessor's Assignee or Grantee. — At common law, an assignee or grantee of a reversion, although he might have an action for rent reserved, could not enter for a condition broken ; for, to prevent maintenance, an assignment of a mere right of entry was not allowed. The statute 32 Hen. VIII. c. 34, first provided that assignees or grantees of a reversion should be entitled to all such advantages as the lessors or grantors themselves had, by entry for non-payment of rent, or other forfeiture.* This statute has been generally re-enacted in the United States.^ It has been held in New 1 Theirr v. Barton, Moore, 94; Webb v. Russell, 3 T. R. 393; Co. Lit. 215, b. 2 Doe V. Bateman, 2 B. & A. 168. This case was affirmed in Colville V. Hall, 14 Ir. C. L. 265; and see post, § 295, and note. ' Chaworth v. Phillips, Moore, 876. * But the condition must relate to the land demised. Co. Lit. 215, b; Comyn L. & T. 286 ; Stockb. Iron Co. v. Cone Iron Works, 102 Mass. 80, 84. Hence a condition of re-entry for any breach of the game laws will not pass. Stevens v. Copp, L. R. 4 Exch. 20. The provision applies as against lessees holding over. Smith v. Kaiser, 17 Neb. 184. ' But not in Ohio. Crawford v. Chapman, 17 Ohio, 449. By N. Y. R. S. 748, §§ 23, 25; Laws of 1805, c. 98, it is enacted that " tjie grantees of any demised lands, tenements, rents, or other hereditaments, 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 by entry, action, distress, or otherwise, for the non- performance of any agreement contained in the lease so assigned, &c., as their grantor or lessor had, or might have had, if such reversion had re- mained in such lessor or grantor. The provisions of this section extend as well to grants or leases in fee reserving rent as to leases for life and for years." 344 COVENANTS AND CONDITIONS. [CHAP. VH. York, in construction of the statute cited below, that the grantee of a rent reserved in fee was entitled to all the reme- dies which his grantor had before he parted with the rever- sion ; that a right of re-entry for the non-payment of rent may be reserved upon such a conveyance ; and that such a right is not confined to the grantor and his heirs, but is as- signable, with the rent, by force of the statute.^ § 296. Of Assignee of Part of the Reversion. — But an as- signee of part of the reversion is not within the statute ; as, if a lease be made of three acres of land, with a condition for re- entry, the assignee of the reversion of two acres cannot enter for a breach of the condition ; for the condition, being entire, cannot be apportioned by the act of the parties, but will be destroyed.2 On the other hand, where the landlord re-enters, he is in of his old estate in the same plight in which it was when he parted with it, and therefore all charges and incum- brances or alienations made by the tenant since the condition was created are avoided at the same time.^ Yet, although 1 Van Rensselaer v. Hays, 19 N. Y. 68; Van Rensselaer v. Ball, id. 100. It was also declared in these cases that the assignee of a lessor in fee might have covenant and ejectment at common law, although having no reversion, since the privity which this conferred was replaced by the privity flowing from the rent as an incorporeal hereditament. The stat- ute 180.5, c. 98, was repealed by statute 1860, c. 396; but the same right of action was held to exist under the statute of 1846, c. 274: Van Rensse- laer w. Slingerland, 26 N. Y. 580; and at common law: Same v. Denni- son, 35 id. 398, where the operation of the statute of 1787 was declared to be restricted to covenants in law; and so see Tyler v. Heidorn, 46 Barb. 439. The actions in all these cases were by devisees, to whom such con- ditions were held to pass by Hayden v. Stoughton, 5 Pick. 528. See ante, § 293, n. ; but the courts do not distinguish between these and any class of assignees, nor on principle can any distinction be made at law between them; or between the grantee of a rent charge, and the grantee of a lessor in fee reserving rent. In Van Rensselaer v. Barringer, 39 N. Y. 9, Hosford v. Ballard, id. 147, the law is declared settled beyond question. 2 Co. Lit. 215, a; Dumpor's Case, 4 Co. 119, b; Knight's Case, 5 id. 55, b; Lee v. Arnold, 4 Leon. 27. s Shep. Touch. 121. In Eyton «. Jones, 21 L. T. N. s. 781, there was a clause of forfeiture for assigning, except as to three acres. The tenant having aliened the three acres assigned by license the remainder, — since SEC. II.} OF CONDITIONS. 345 the assignee of the reversion of part of the land cannot enter for a condition broken, he may maintain an action of covenant by virtue of the statute.^ § 297. Demand for Rent to precede Re-entry, — Where a landlord has a right of re-entry for non-payment of rent, a demand of the rent, either upon or after the last day which the lessee has to pay, is still essential to complete the forfeiture, and enable him to maintain an action ; for it is not until after demand and non-payment that this condition is broken.^ But there may, by the special agreement of parties, be a re-entry for default in the payment of rent, without a demand of it.^ In such case, the mere failure to pay, with or without demand, constitutes the .breach which works a forfeiture, and a subse- quent entry at any time is good.* So, if the tenant disclaims holding under the landlord, or refuses to pay rent on that ground, the lessor is entitled to re-enter without any previous demand of rent.^ An actual demand is, in general, necessary to complete the breach, whether the proviso gives the right of re-entry in case the rent be behind for a certain period of time after the day whereon it falls due, or the lease is de- clared to be absolutely void in case of its non-payment.^ Ac- cordingly, where the condition was that, if the rent were suffered to remain due and unpaid, the indenture and the the statute 22-23, 23-24, Vict., — and his assignee assigned the whole without license. It was held that the whole was revested in the lessor by his entry. 1 Twynam v. Pickard, 2 B. & A. 105. 2 Doe V. Wandlass, 7 T. R. 117. See Nowell v. Wentworth, 58 N. H. 319. We have elsewhere, post, § 493, seen the strict requisites of the de- mand, when the landlord proceeds to enforce a forfeiture under the common law, and independent of the statute. 8 Dormer's Case, 5 Co. 39. So, Fifty Associates p. Howland, 5 Gush. 214, where stipulation that lessor might enter without further demand was held to mean without any demand. * Sweeny v. Garrett, 2 Disney, 601 ; Goodright ». Cator, 2 Dougl. 478 ; Doe V. Masters, 2 B. & C. 490. 6 Jackson v. Collins, 11 Johns. 1; Salem Presb. Cong. v. Williams, 9 Wend. 147. 6 Co. Lit. 202, a; Clun's Case, 10 Co. 129; Doe w. Wandlass, supra; Bowyer v. Seymour, 13 W. Va. 12. 846 COVENANTS AND CONDITIONS. [CHAP. VII. estate thereby created should le void, it was held that the grantor was not entitled to recover as for a condition broken, without showing a formal demand of the precise sum due, at a convenient time before sundown of the day on which the rent became payable by the reservation.^ § 298. Where Re-entry not Necessary. — Demand always Necessary. — Wherever the action of ejectment is in force, no actual entry by the landlord is necessary to enable him to take advantage of a condition broken, because the construc- tive entry implied and confessed in the action is sufficient for the purpose, even where the estate to be avoided is one of freehold.^ And where the grantor is already in possession, while no entry by him is required,^ yet he must manifest his intention to avail himself of the forfeiture by some distinct act.* But the necessity of proving a strict common-law de- mand, both as to time and place, still remains, wherever a forfeiture for the non-payment of rent is to be established, unless when dispensed with by agreement of the parties or by statute.^ Thus, for instance, where, under a proviso for 1 Jackson v. Kipp, 3 Wend. 230. 2 Doe V. Masters, supra; Little v. Heaton, 2 Ld. Ray. 750; Bear v. Whistler, 7 Watts, 149; Jackson v. Crysler, 1 Johns. Cas. 125; Doe v. Alexander, 2 M. & S. 525; Garrett v. Scouten, 3 Den. 334. In Michigan, absolute- notice to quit and demand of possession are held to constitute a sufficient re-entry. Alexander v. Hodges, 41 Mich. 691. 8 Ante, § 288. * Hubbard v. Hubbard, 97 Mass. 188; Stookb. Iron Co. v. Cone Iron Works, 102 id. 80. In Allen v. Brown, 5 Lans 280, it is held that a landlord cannot accept a surrender of a lease for life where waste has been committed, so as to divest lessee's mortgage. In the course of the decision the court lay down the general rule that a lessor for life cannot divest by mere entry, but must bring ejectment; though otherwise in a lease for years. Ebsworth v. Jackson, 20 Johns. 180, is relied upon. But there it was only held that a general entry by the lessor would not be presumed by the court to be for forfeiture. In the principal case the condition was against waste, and the fact of waste should perhaps be first judicially settled ; but this is aside from the point discussed. The doc- trine of the court has no support in English law, and is not borne out by any case cited. ^ McCormick v. Connell, '6 S. & K. 151 ; Van Eensselaer v. Jewett, 2 N. Y. 147. SEO. II.] OF CONDITIONS. 347 re-entry, in case of the non-payment of rent for twenty-one days after it was due, it appeared that the rent was payable quarterly, and that a demand of more than one quarter's rent was made on the twenty-first day, at one o'clock, — it was held that only one quarter's rent should have been demanded, and that the demand must have been made at sunset, if the lessor intended to insist upon the forfeiture.^ § 299. Re-entry under the English Statute. — So, Ijnder the English statute 4 Geo. II. c. 28, where there is a proviso for re-entry, if no sufficient distress is found upon the premises at the expiration of fourteen days from the rent-day, the landlord is primd facie entitled to recover after proof of there being no distress on the premises some day after the fourteen, though that day should be subsequent to the demise in the ejectment.2 This clause of the statute must be strictly pur- sued, and it is necessary that every part of the premises be searched, in order to ascertain that no sufficient distress can be found thereon.^ But a lessor can in no case bring an ejectment upon the clause of re-entry, after distraining for rent in arrear, — such a proceeding being considered a waiver of the forfeiture.* § 300. Demand dispensed with by Statute. — The formalities of a common-law demand to enforce a condition for the pay- ment of rent are dispensed with by statute in many of the United States, following the provisions of the statute 4 Geo. II. c. 28, and an action of ejectment substituted, — the right thereto depending on the question whether a sufficient dis- tress is or not found on the premises.^ In place of the formal action of ejectment, which the English and some of the older statutes gave, a summary remedy is in many States provided, whereby recovery of the premises may be had.^ § 301. In New York. — The New York statute does not extend to cases where the lease contains no clause of re- 1 Doe V. Paul, 3 C. & P. 613. « Doe v. Fuchau, 15 East, 286. » Rees V. King, Forrest, 19. * Norton v. Sheldon, 5 Cow. 448. 6 2 N. Y. R. S. 505, § 30. And see^jos*, §§ 301, 492, 493. « Id. 348 COVENANTS AND CONDITIONS. [CHAP. VII. entry ,1 nor where there is a sufficient distress upon the premises; and, consequently, in such cases the lessor can only proceed at common law, as before the statute.^ The distress, however, must be such that the landlord could have availed himself of it ; and, therefore, where the tenant locked up the premises, so that his goods, supposing there was sufficient there for the purpose, could not be distrained with- out rendering the landlord a trespasser, it was held that proof of this fact was sufficient to satisfy the statute, which meant no sufficient distress upon the premises which could be got at.^ When proceeding under that statute, also, he was bound to show a compliance with all the requirements of the common law, before he could avail himself of a condition of re-entry.* And under the English statute, it has been held that this provision has not done away with the necessity of a demand of rent, if the lease requires it, although such a demand need not be made with all the particularity required at common law.5 § 302. Re-entry on Notice in New Yort. — But a recent statute of New York, which abolishes distress for rent, now authorizes a re-entry for the non-payment of rent, whether there are sufficient goods on the premises or not, in all cases where the right of re-entry has been reserved in the lease, provided that fifteen days' notice of an intention io re-enter be given to the lessee, or be left at his dwelling-house.® This ^ Jackson v. Hogeboom, 11 Johns. 163. No right to re-enter unless reserved in the lease. Den v. Post, 1 Dutch. 286. " Doe ». Wandlass, 7 T. K. 117; Doe v. Koe, 9 Dowl. 548; Farley v. Craig, 3 Green, 192. If plaintiff enters by virtue of a clause of re-entry, he must show himself entitled to do so by the terms of his contract; he must also show the absence of a sufficient distress on the premises, or excuse himself from the necessity of attempting a distress. Per Horn- blower, C. J. s Doe ti. Dyson, Mood. & M. 77. * Jackson v. Kipp, 3 Wend. 230; Jackson v. Wykoff, 5 Wend. 53; Coon V. Brickett, 2 N. H. 163; Hamilton v. Elliott, 5 S. & R. 375; Gray V. Blanchard, 8 Pick. 284. 6 Doe V. Shawcross, 3 B. & C. 752. ' Laws of 1846, c. 369. The constitutionality of this law was sus- tained in Van Rensselaer v. Snyder, 13 N. T. 299. SEC. II.] OF CONDITIONS. 349 right of re-entry on fifteen days' notice is cumulative upon the former one, which requires the landlord to prove the absence of a sufficient distress ; and both may subsist together, and the landlord may elect between them.^ § 303. Summary Process provided for. — Instead of, and in some cases in addition to, the formal action of ejectment, the statutes of most of the United States have provided that the lessor may enforce his right to the premises by a summary proceeding in some cases after ten, in others after fourteen or more, days' notice and demand. But as substantially the same form of proceeding exists whether the gTound of re- moval be a forfeiture by breach of condition in the demise, or a statutory dispossession for non-payment of rent, or because the tenant holds over his term, or forcibly detains the prem- ises, we have considered the features of this process under . the head of remedies later in this volume and refer the reader there for the law in detail.^ 1 Williams v. Potter, 2 Barb. 316. Though the common-law mode of re-entry is not taken away by this statute, an entry pursuant to its pro- vision does not require the formalities, as to demand, of a common-law entry. Van Rensselaer v. Snyder, supra. 2 Post, §§ 493, 494, 713, 728, notes and cases cited. 350 THE landlord's covenants. [chap. VIII. CHAPTER VIII. COVENANTS ON THE PART OP THE LESSOE. SECTION I. THE COVENANT FOR QUIET ENJOYMENT. § 304. Defined. — What it implies. — Ruus with the land. — The principal covenant on the part of a landlord is that his tenant shall have the quiet enjoyment and possession of the premises during the continuance of the term. The law sup- poses that when a man makes a lease, he has a good title to the land, and, consequently, power to lease it ; and an engagement to this effect on the part of a lessor is therefore always implied. It is also to be understood, as a condition of his right to demand rent, that the lessee shall not be dis- turbed in his possession of the demised premises during the term, by the lessor or by any other person rightfully claiming under him.^ But although this covenant is always implied on the part of a lessor in every case of a tenancy for a fixed period, however short it may be,^ it is still usual to insert, 1 Mack V. Patchin, 42 N. Y. 167; Sigmund v. Howard Bk. of Bait., 29 Md. 324; Holder v. Taylor, Hob. 12; Ludwell v. Newman, 6 T. R. 458; Baugher v. Wilkins, 16 Md. 35; and see Burwell v. Jackson, 9 N. Y. 535; Owens V. Wright, 6 McCrary, 642; Field v. Herrick, 10 Bradw. (111.) 591. It is held that the implied covenant for quiet enjoyment may be modified or restrained by express covenants inconsistent therewith. O'Connor v. Memphis, 7 Lea, 219. And where the lessee receives and holds possession of part only of the premises, it may become a question of fact whether or not he has waived the full performance of the lessor's covenant. Prior ». Kiso, 81 Mo. 249. See ante, § 252, and notes. 2 Per Parke, B., in Hart v. "Windsor, 12 M. & W. 85, on the part of a lessor. Want of title may amount to a fraudulent representation, and SEC. I.] FOR QUIET ENJOYMENT. 351 among other provisions of the lease, an express covenant for the lessee's quiet enjoyment, and to save him harmless from all persons claiming title, upon his performance of those stipulations which are obligatory upon him.^ This is a cove- nant running with the land, and obligatory upon every person who becomes legally possessed of the land.^ § 305. What it intends. — This covenant, whether expressed or implied, means that the tenant shall not be evicted or dis- turbed by the lessor or by persons deriving title from him, or by virtue of a title paramount to his, and implies no war- ranty against the acts of strangers.^ It is equivalent to a when accompanied with damage will constitute a good cause of action, irrespective of this covenant. Whitney v. Allaire, 4 Den. 554; s. c. 1 N. Y. 305. So Milliken v. Thorndike, 103 Mass. 382. In this case, the defendant was induced to hire a wharf from the plaintiff by fraudu- lent representations that the right mentioned in the lease embraced a parcel of land which in fact belonged to the corporation of New York. It was held, in an action for rent, that he was entitled to a deduction of the sum which he was obliged in good faith to pay for a lease of that lot. The fact that the demise was not of the wharf, but of plaintiff's right to the wharf, made no difference. The question in such cases is, not what passed by the conveyance, but what would have passed had the repre- sentations been true. 1 The Supreme Court of New York, in the case of Kinney v. Watts, 14 Wend. 88, held that, under the statutes of that State, no covenant for quiet enjoyment could be implied in a lease, or other conveyance of terms for years where the term exceeded three years ; but the Court of Appeals overruled this case, in Mayor v. Mabie, 13 N. Y. 151, and held that such an instrument is not a conveyance of real estate, within the meaning of the statute (1 R. S. 738, § 140) forbidding the implication of covenants in deeds. And see Vernam v. Smith, 15 N. Y. 382. But a lease in per- petuity, or in fee reserving rent, is a conveyance of real estate, within the provisions of the statute in regard to the implication of covenants, and if it contains no covenant for quiet enjoyment, none will be implied. Car- ter V. Burr, 39 Barb. 59. 2 Shelton V. Codman, 3 Cush. 318. * King ». Reynolds, 67 Ala. 229. So the landlord is not liable for trespasses committed by another tenant. Abrams v. Wilson, 59 id. 524. So a lessee cannot have his lease cancelled or be released from the cove- nant to pay rent merely because a prior tenant whose term has expired holds over without right. Field v. Herrick, 101 111. 110; McNairy v. Hicks, 8 Baxt. 378. And it is held that the renting of premises to a 352 THE landloed's covenants, [chap. vm. stipulatiou that the lessee shall not be rightfully disturbed in his possession during the term, not that he shall not be disturbed at all. And all that it requires is, that the lessor shall have such a title at the time of the demise, as shall enable him to make a good unincumbered lease for the term demised.^ But any interference with the possession of the lessee by the lessor, more than a trespass, will amount to a breach of the covenant, in whatever form it may happen.^ If the lessor merely covenants against the acts of a particular person, his general obligation is restricted, and a molestation by that person only, can be the ground of a breach of the covenant.^ If it is contained in a lease for life, the lessor is bound, under the general covenant, to make it good against all men ; but if it be a lease for years, then only as against tenant who carries on therein a trade, which renders inconvenient the occupation of an adjoining tenant of the same landlord, does not amount to an eviction of the latter tenant. Gray i;. Graff, 8 Mo. App. 329. See § ZIS, post. Where premises are leased subject to certain uses in an ad- joining tenant under the same landlord, as where adjoining farms are drained by a common artificial drain running under both, the landlord will be liable for a breach of the covenant for quiet enjoyment, if in the ordinary use of his right by the other tenant the lessee's enjoyment is disturbed by reason of the fault of the landlord; as where such a drain had been imperfectly and improperly constructed by the landlord. But if the disturbance arises from the adjoining tenant's fault, as by excessive and improper use of the drain, the landlord is not liable. Sanderson v. Mayor of Berwick, 13 Q. B. D. 547. 1 Gardner v. Keteltas, 3 Hill, 330; Knapp v. Marlboro', 34 Vt. 285; Grist B. Hodges, 3 Dev. 388; Underwood v. Birchard, 47 Vt. 305. ^ Mayor v. Mabie, supra; Fuller v. Kuby, 10 Gray, 258 ; Louns- berry v. Snyder, 31 N. Y. 514. Any interference with the person of a tenant by the landlord, although on the demised premises, is a trespass, and not an eviction. Vatel v. Herner, 1 Hilt. 149; id. 285. A covenant of seisin which resembles a lessor's implied covenant for title extends to the whole of the premises granted, and includes everything which is parcel of the realty, and which would pass by the deed if it belonged to the grantor ; and, in such case, if a fence on the premises does not belong to him, the covenant is broken. Mott v. Palmer, 1 N. Y. 564. * Gardner v. Keteltas, supra ; Howell v. Richards, 11 East, 642. Where a lease contains a covenant for quiet enjoyment, without molestation or disturbance from the lessor, his successors or assigns, no other or further covenant in respect to enjoyment will be implied. Burr v. Stenton, 42 N. Y. 462. 8E0. I.J FOE QUIET ENJOYMENT. 353 all persons claiming through himself, or those from whom he claims title. But if the tenant is ousted by one who has no title, or in the language of the law, by a stranger, it is a trespass for which the law leaves him to his remedy against the wrong-doer, since it arises from no fault of the land- lord.i § 806. Broken only by Disturbance or 'Withholding of Posses- sion. — While the covenant which is implied from the words " demise," &c., extends to title, and so may be broken wher- ever a covenant for seisin, or right to convey, or even a covenant against incumbrances would be broken ; ^ the cove- nant for quiet enjoyment, arisiijg from the same words, like the express covenant to the same effect, extends to possession alone, and is broken only by an entry, expulsion, or actual disturbance of possession by the lessor, or one holding a par- amount title, or by the lessor's withholding possession.^ Thus where the breach assigned was, that the plaintiff was evicted in consequence of a judgment in ejectment by one Yates, who had lawful title to the premises ; it was held a good objection, on demurrer, that it did not appear that Yates's title com- menced by any act of the defendant, prior to the assignment made by them to the plaintiff, who might therefore, have been evicted by means of some act done by himself, since the 1 Iggulden V. May, 9 Ves. 330; Noble v. King, 1 H. Bl. 34; Noke's Case, 4 Co. 80, b; Lloyd v. Tomkies, 1 T. R. 671; Dudleys. Folliott, 3 id. 584; Andrews's Case, Cro. El. 214; Greenby v. Wilcocks, 2 Johns. 1; Ellis V. Welch, 6 Mass. 246; Kimball v. Grand Lodge of Masons, 131 Mass. 59; Schilling v. Holmes, 22 Cal. 327; Moore v. Weber, 71 Pa. St. 429; Schuylkill Co. v. Schmoele, 57 id. 271. 2 Miller v. Thornton, 1 Duv. 369; Mostyn v. W. M. Coal Co., 1 L. R. C. P. Div. 145. Here the landlord's title failing as to part, the tenant was allowed to rescind or elect to retain the part to which the landlord had title. The covenant of seisin is not broken where the grantor mak- ing it has had exclusive occupation by his tenant, under a claim of title for thirty-one years next preceding the covenant. Ginn v. Hancock, 31 Me. 42. A seisin in fact is sufficient. Marston v. Hobbs, 2 Mass. 489 ; Griffin v. Fairbrother, 10 Me. 95. » Whitbeck v. Cook, 15 Johns. 483; Webb v. Alexander, 7 Wend. 281; Mattoon v. Monroe, 20 Hun, 75; Boreel v. Lawton, 90 N. Y. 293; Boothby v. Hathaway, 20 Me. 251 ; Howard v. Doolittle, 3 Duer, 464. VOL. I. — 23 354 THE landlord's covenants. [chap. VIII. assignment.^ The intendment that the title of the party evict- ing was derived from the plaintiff may be precluded by aver- ring that the person evicting entered by lawful title, which accrued to him before the date of the conveyance to the plaintiff,^ or that the party evicting entered by virtue of a title theretofore made by, from, and under the defendant.^ § 307. Certain words of, construed. — A covenant for quiet enjoyment against " any interruption of, from, or hy the grantor or his heirs, or any person whomsoever, legally or equitably claiming, or to claim, any estate, &c., in the premises, by, from, under, or in trust for him or them, or by, through, or with his or their acts, means, default, privity, or consent," was adjudged to extend to an area of quit-rent, due at the time of the conveyance, although it was not shown that the rent accrued during the time the grantor held the estate.* The lessor's indemnity usually extends to the acts of himself and Ms heirs and all others claiming under him ; ^ but as to the persons who are construed to come within the meaning of the phrase all persons claiming under him, it has been decided that a person taking under an execution of a power of appointment is within the terms of a covenant for quiet enjoyment without any let, suit, &c., of the appointer, his heirs or assigns, or any person or persons claiming, or to claim by, from, or under him ; although the estate proceeded from the wife of the appointer, and he and she both joined in exercising the power.^ This covenant runs with the land, and is, therefore, binding on the assignees of the reversion ; and may be made available by the assignees of the term.'^ ' Noble V. King, 1 H. Bl. 34; Baugher v. Williams, 16 Md. 35. « Buckly V. Williams, 3 Lev. 325. 8 Hodgson V. E. Ind. Co., 8 T. R. 278. * Howes V. Brushfield, 3 East, 491. ^ And where this is the case he is not liable for a disturbance by the paramount title. Dennett v. Atherton, L. R. 7 Q. B. 316. On the same principle, where the tenant has notice of a restriction in the lease, the exercise of it is no breach of this covenant. O'Connor v. Daily, 109 Mass. 235. 8 Hard V. Fletcher, 1 Doug. 43; Evans v. Vaughan, 4 B. & C. 261. ' Campbell v. Lewis, 3 B. «fe A. 392; s. c. 8 Taunt. 715. See ante, § 262, and notes. The implied covenant for title in the words " demise," SEC. I.] FOR QUIET ENJOYMENT. 355 § 308. Guarantees Possession, and not Title. — The express covenant of quiet enjoyment goes to possession, and not to title, and is broken only by an entry and expulsion, or by some actual disturbance in the possession.^ An outstanding judgment against the lessor, or a lease by him to another under which no entry or attempt at entry is made, or the mere existence of a mortgage on the property before fore- closure and sale is not therefore in either case to be deemed a breach of this covenant.^ But although a lawful eviction in some form must be shown, it need not be an eviction by process of law ; ^ it is enough that, on a valid claim being made by a third person, the plaintiff voluntarily yielded up the possession. If, however, he surrenders the possession without a legal contest, he assumes the burden of proving that the person entering had title paramount.* The eviction must also appear to have taken place before suit brought. § 309. Breach of, Effect of certain Acts to create. — The mere act of forbidding a tenant to pay rent to the plaintiff, &c., does not run, but ]ike the covenants for seisin, &c., which it resem- bles, is broken when made. See ante, § 263, and notes. 1 Thus it was formerly laid down that actual ouster, or physical dis- possession was necessai-y: Waldron v. McCarty, 3 Johns. 471; Kortz v. Carpenter, 5 id. 120 ; Webb v. Alexander, 7 Wend. 281 ; Kerr v. Shaw, 13 Johns. 236 ; and this is, perhaps, still law in New York. St. John V. Palmer, 5 Hill, 599; but see Moffatt v. Strong, 9 Bosw. 57. The prevailing doctrine, however, now is, that after a demand or other hostile assertion of the paramount title the lessee may yield thereto, taking the risk of its being the superior title, and his attornment or purchase, with- out any actual change of possession, will be a constructive eviction and breach of the covenant of quiet enjoyment. Grist v. Hodges, 3 Dev. 200; Sprague v. Baker, 17 Mass. 586; Loomis v. Bedel, 11 N. H. 74; Moore v. Vail, 17 111. 190; Curtis v. Deering, 12 Me. 501; Univ. Vt. v. Joslyn, 21 Vt. 52; Brown v. Dickerson, 12 Pa. St. 372; Holbrook v. Young, 108 Mass. 83. But such attornment must be shown. Hawes v. Shaw, 100 Mass. 187. 2 Sedgwick v. Hallenback, 7 Johns. 376; Mills v. Sampsel, 53 Mo. 360; Stanard v. Eldridge, 16 Johns. 254; Clark v. Lineberger, 44 Ind. 223. 8 Parker v. Dunn, 2 Jones (N. C), 203. * Greenvault v. Davis, 4 Hill, 643; Cowan v. Silliman, 4 Dev. 46; Hamilton v. Cutts, 4 Mass. 349; Booth v. Starr, 5 Day, 282; Camarillo V. Folsom, 49 Cal. 202; Dunklee v. Koper, 44 Ga. 266. 356 THE landloed's covenants, [chap. viu. unaccompanied by any other disturbance, will not amount to a breach.^ Nor can a lease by the riparian owner of a batture between the public road and a river, be annulled by a lessee who has not been disturbed, on the ground that the premises are part of the river bank, the use of which is free and not susceptible of being leased.^ Under this covenant the land- lord is not bound to rebuild a house in case of its destruction by fire ; nor does such an event amount to an eviction. But it has been held to be so if the landlord has expressly agreed to rebuild or keep the premises in repair and neglects to do S0.3 Nor will any acts of molestation, even if committed by the landlord himself or by a servant at his command, occasion a breach of the covenant, unless they are more than a mere trespass.* This covenant is intended to insure to the lessee, 1 Witchcot V. Nine, 1 Brownl. & G. 81. Nor where the lessor had prevented parties from hiring of the lessee. Ogilvie v. Hull, 5 Hill, 52. Nor by a demand of possession by one having title. Cowan v. SUliman, 4 Dev. 46. But where the lessor had also denied lessee's title, and brought suit against him and his sub-lessees to dispossess them, this was held a breach. Levitzky v. Canning, 33 Cal. 299. And in Leadbeater v. Koth, 25 lU. 587, mere prohibition was held an eviction. 2 N. O. Carrolton Co. v. Winthrop, 5 La. Ann. 36. s Brown v. Quilter, Ambler, 619; Myers v. Burns, 33 Barb. 401; Womack v. McQuarry, 28 Ind. 103. But see Leavitt v. Fletcher, 10 Allen, 119, where lessor's non-performance of his covenant to repair was held no bar to his suit for rent after the destruction of the premises ; and see post, §§ 329, 330, 375, and notes. * Bennett v. Bittle, 4 Kawle, 339; Hayner v. Smith, 63 111. 430; Dim- mock V. Daly, 9 Mo. App. 354 ; though acts of trespass may rise to an eviction; citing Upton v. Townend, 17 C. B. 30. In Ogilvie v. Hull, 5 Hill, 54, Chief Justice Nelson says: "No principle is better settled, or more uniformly adhered to than that there must be an entry, and expul- sion of the tenant by the landlord, or some deliberate disturbance of the possession, depriving the tenant of the beneficial enjoyment of the de- mised premises, to operate a suspension or extinguishment of rent. But to constitute a breach of the covenant it is sufficient that the lessee's or- dinai-y and lawful enjoyment be substantially interfered with by acts of the lessor or those claiming under him, though neither the title to, nor possession of, the land be otherwise affected. Sanderson v. Mayor of Berwick, 13 Q. B. D. 547." Thus where one let a stall in a market and afterwards discontinued the use of the building as a market, induced the other tenants to surrender their stalls, extinguished the lights of the mar- ket except those at the tenant's stand, and closed the doors except the one SEC. I.] FOE QUIET ENJOYMENT. 357 legal right to enter and enjoy the premises, and if he is pre- vented from entering by a person already in, under a para- mount title, an action lies.^ In such case, no ouster or expul- sion is necessary, on which to predicate a suit, as the lessee is not bound to enter, and commit a trespass ; ^ it must, how- ever, be shown expressly that he was kept out by a title exist- ing in a third person at or before the execution of the lease.* § 310. To constitute Breach, Eviction must be by la-wful Title. — The eviction must also be by title both lawful and paramount ; accordingly, where the eviction was by a subor- dinate title, which the grantee had however precluded himself from contesting by his own acts and declarations, it was held, he could not maintain an action on this covenant.* And where a third person recovered in an action of trespass against the grantee, it was held that the grantor was not liable on this covenant, unless it was shown that before and at the date of the covenant he had lawful title, and by virtue thereof en- tered and ousted the plaintiff.^ But if a lessee, to prevent in front of such stand, it was held that this was an eviction. Denison V. Ford, 7 Daly, 384. But where on tenant's abandoning, the landlord receives the key from a third party, repairs, and puts up " to let " on the premises, this is no eviction. Pier v. Carr, 69 Pa. St. 326; Oastler ti. Henderson, 2 L. R. Q. B. Div. 575. 1 Ludwell V. Newman, 6 T. E. 458; St. John v. Palmer, 5 Hill, 599; Williams v. Weatherbee, 2 Aik. 329 ; Hamilton v. Cutts, 4 Mass. 349. 2 1 Saund. 322; Grannis v. Clark, 8 Cow. 36. ' Beddoe v. AVadsworth, 21 Wend. 120. In the case of Giles v. Dugro, 1 Duer, 331, the defendant in the assignment of a lease to the plaintifE covenanted that the assigned premises were free and clear of all incum- brances whatsoever; but it appeared that, prior to the assignment, he had sold and assigned to one Sloan the pi-ivilege of using the wall on the premises as a party-wall of a building to be erected during the unexpired term of the lease. It was held that such prior assignment was not a mere license, but was an absolute grant, creating a permanent incum- brance, and, therefore, a breach of the defendant's covenant. And also that, Sloan having actually used the wall as the party-wall of a building he had erected, it amounted to an eviction of the plaintifE, and entitled him to more than mere nominal damages. * Kelly V. Dutch Ch. of Schenectady, 2 Hill, 105; Hoppes v. Cheek, 21 Ark. 585. 5 Webb V. Alexander, 7 Wend. 281 ; Lansing v. "Van Alstyne, 2 Wend. 358 THE landlord's covenants. [chap. VIII. a violent expulsion from the premises, without waiting for the judgment of the court yields possession, and attorns in good faith to one who has a title paramount and an imme- diate right of possession, it is equivalent to an ouster, and forms a good defence to the lessor's action for rent.^ § 311. Actual Ouster necessary to constitute Breach. — A mere recovery in ejectment against the covenantee is not a breach of this covenant, unless there be an actual ouster by writ of possession.^ But a decree in equity, directing a de- fendant to execute a deed and deliver possession of the land, is held to be equivalent to an ouster ; and the fact that the decree is founded on a notice to him when he took the deed, of an equity in the land, does not bar this action.^ And al- though the mere existence of a better title is no breach of this covenant, yet if it be accompanied with possession under it, commenced before the deed which contains the covenant was executed, it will amount to a breach.* The covenantee is not bound to defend, after notice to the covenantor and refusal on his part to defend ; ^ and the notice in such case is not re- quired to be in writing.^ § 31 2. Lessee's Right to ezpel Wrong-doer in Possession. — Covenant may be extended. — If the party holding is a wrong- doer, the remedy of the lessee is as perfect and effectual to dispossess him after, as that of the lessor was before, the exe- cution of the lease, either by ejectment or by summary pro- ceedings under the statute. Therefore, where the lessee is 565, n. ; Phelps v. Sawyer, 1 Aik. 150; Maverick v. Lewis, 3 McCord, 211. In note 2 to Salmon v. Smith, 1 Wms. Saund. 204, it is said that, to oc- casion a suspension of rent, there must be an expulsion or eviction of the lessee; and the plea must state his eviction or expulsion, and keeping him out of possession until after the rent became due. So in Paige ». Parr, Style, 432 ; and Chancellor Kent affirms the same doctrine. 1 Morse v. Goddard, 13 Met. 177 ; Moffat v. Strong, 9 Bosw. 57. ^ Kerr v. Shaw, 13 Johns. 236 ; Kortz v. Carpenter, 5 Johns. 120. " Martin v. Martin, 1 Dev. 418. * Grist V. Hodges, 3 Dev. 200. ^ Jackson v. Marsh, 5 "Wend. 44. " Miner v. Clark, 15 Wend. 425 ; Bronson, J., dissenting. SEC. I.] FOR QUIET ENJOYMENT. 359 prevented from entering into possession of the premises on the day stipulated for the commencement of possession by a former tenant, who holds over after his term has expired, his remedy must be against the latter, and not against the lessor.^ But the covenant may extend to all interruptions, legal or il- legal, where there is a plain design evinced to protect the lessee against both, — as, if the covenant be that the party shall enjoy against all claiming, or 'pretending to claim, any right, S^c. In this case there was a pretence of right of com- mon set up to two closes comprehended in the lease, and it was considered to be the plain intent of the parties that all disturb- ance should be guarded against ; for if legal claims only were included, the tenant would be subjected to the hardship of trying the right for the landlord, which was the very thing the tenant desired to prevent by this covenant.^ But on a covenant to save harmless against all lawful and unlawful titles, it must appear, in assigning the breach, that he who entered did not claim under the lessee himself.^ § 313. Generally, Molestation must amount to Prohibition of Enjoyment. — A mere personal wrong will not occasion a breach of this covenant ; the molestation must be such as con- cerns the estate, and amounts to a prohibition of enjoyment ; for if any one, even the lessor, enters and beats or assaults the lessee, the lessor cannot be charged on this covenant for such a disturbance.* But if the covenant indemnifies the lessee against a particular person by name, the covenantor is bound to defend him against the entry of that person, whether by title or otherwise, and whether such entry be lawful or not.^ 1 Gardner v. Keteltas, 3 Hill, 330; Gozzolo v. Chambers, 73 HI. 75; Mechanics' Ins. Co. v. Scott, 2 Hilt. 550; Underwood v. Birohard, 47 Vt. 305; Sigmund v. Howard Bank, 29 Md. 324; ante, §§ 176, 177. 2 Southgate u. Chaplin, 1 Comyn, 239; s. c. 10 Mod. 384; Lucy v. Levington, 1 Vent. 175; Hunt w. Allen, Winch, 25. 8 Norman v. Foster, 1 Mod. 101. 4 Ellis «. "Welch, 6 Mass. 246; Playter v. Cunningham, 21 Cal. 229; Penn v. Glover, Cro. El. 421; Seddon v. Senate, 13 East, 72; Noble -o. Warren, 38 Pa. St. 340. 6 Foster v. Mapes, Cro. El. 212; Haynes w. BickerstafE, Vaugh. 118; Fowle y. Welsh, 1 B. & C. 29. 360 THE landlord's covenants, [chap. vni. It was formerly held that whore a lessee assigned his term for years, and covenanted that the original lease was good, and not made void or encumbered in any way, a previous lease granted by the assignor amounted to a breach, notwith- standing the plaintiff, before the assignment, had notice of the lease, and had been attorned to by the under-tenant ; and this, although no actual disturbance had arisen to the lessee.^ But this has since been held otherwise in this country, and with better reason.^ And although the mere existence of a pre- vious mortgage, under which the lessee is liable to be dispos- sessed, does not constitute an eviction, the hostile assertion of the mortgage title, if paramount, will be such if the cove- nantee yields thereto, and either by purchase or attornment holds under it, although his possession may never actually be changed.^ § 314. Eviction, how to be Alleged. — An averment of evic- tion, under an elder title is not always necessary to sustain an action upon this covenant ; for if the grantee be unable to obtain possession, in consequence of an existing possession or seisin by a person claiming and holding under an elder title, it is equivalent to an eviction.* And where the breach as- signed was, that at the time of the demise to the plaintiff, one I. B. had lawful right and title to the premises, and, having such right and title, entered and ejected the plaintiff ; it was objected, on demurrer, that the plaintiff, in alleging the eviction, ought to have shown the title of I. B. ; or should at least have averred that I. B. had such a title as was incon- sistent with the plaintiff's right to possess those premises; 1 Ludwell V. Newman, 6 T. K. 458; Levett v. Withrington, 1 Lutw. 317. 2 Pease v. Christ, 31 N. Y. 141. ' See ante, § 308, and authorities there cited. * Duvall V. Craig, 2 Wheat. 45; Andrews v. Paradise, 8 Mod. 318; Grannis v. Clark, 8 Cow. 36. And the law laid down in Kortz v. Car- penter, 5 Johns. 120, seems contrary to the doctrine generally now pre- vailing. In Walker v. Tucker, 70 III. 327, the withholding parcel of the demise was considered an eviction. So Mostyn v. W. M. Coal Co., 1 L. R. C. P. Div. 145. But the burden is on the tenant to show the hostile title to be paramount. Underwood v. Birchard, 47 Vt. 305. SEC. I.] FOR QUIET ENJOYMENT. 361 for though it was alleged that he had lawful right and title to the premises, he might only have had a right to recover in a real action, and not a right of entry, and that the mischief to he apprehended from this loose mode of pleading was, that it might give cover to an eviction by collusion. But the court overruled the demurrer, observing that if the declaration was certain to a common intent it was sufficient ; that it would be doing violence to the words to say that the lawful right and title which it was stated I. B. had did not legalize his entry ; and that the fair import of the words was that he had lawful right and title to do that which he did.^ § 31'5. Ouster from part of Premises treated as Eviction at Tenants Option. — It is also implied that the tenant shall have the free use of the whole of the premises ; and if he is ousted from any material part thereof, he may treat it as an eviction from the whole premises, and throw up the lease : nor will he any longer be responsible for rent.^ But if he prefers it, he may retain possession of so much of the property as he has not been evicted from, and sue the landlord for such damages as he has sustained from the partial eviction.* Therefore, if a man makes a lease of a house with estovers, and then de- stroys all the wood, the lessee may have an action of cove- nant.* So where a landlord let certain premises with a portion of an adjoining yard, and agreed that the tenant should have the use of the pump in the yard jointly with himself as long as 1 Foster v. Pierson, 4 T. K. 617. 2 Etheridgeu.Osborn, 12 Wend. 529; Hay v. Cumberland, 25 Barb. 594. Kor if tenant retains the occupation of the residue can the lessor hold him for the proportionate rent thereof. Leishman v. White, 1 Allen, 489; Christopher v. Austin, 11 N. Y. 216 ; Skaggs v. Emerson, 50 Cal. 3; Grundin v. Carter, 99 Mass. 15; Hayner v. Smith, 63 111. 430; and see post, § 379, and notes. But it does not extend to the mode of user of the premises, and a restriction in this respect, enforced by the paramount title, is not a breach of the covenant. Dennett v. Athertbn, L. R. 7 Q. B, 316; Fillebrown v. Hoar, 124 Mass. 580. 3 Dudley v. Folliott, 3 T. R. 584 ; Noble v. King, 1 H. Bl. 34. Or he may quit possession, and sue for an eviction from the whole premises, for all damage incurred, other than what was measured by his rent. Chatter- ton V. Fox, 5 Duer, 64; Morrison v. Chadwiok, 7 C. B. 266, 284. * Pomfret v. Ricroft, 1 Saund. 321. 362 THE landlord's covenants. [chap. VIII. it should remain there ; though it was held that these latter words gave the landlord full liberty to remove the pump at his pleasure, yet the court agreed that if those words had not been introduced, the landlord could not have taken it away, or deprived the tenant of the use of it, without subjecting himself to the consequences of a breach of this covenant.^ And if a man should lease premises with a watercourse on them, and afterwards stop the watercourse, the tenant may consider it an eviction, or maintain an action for damages against him.^ Or if he covenants for the quiet enjoyment of a certain close, and afterwards sets up a gate across a lane leading to the close, by which the lessee is obstructed in pass- ing to it, this will amount to a breach of the covenant.^ It was said, also, to be immaterial whether the gate was erected by right or by wrong ; for, in either case, being an obstruction, it should not have been erected there.* So on the lease of a 1 Rhodes v. BuUard, 7 East, 116. So in Levitzky v. Canning, 33 Cal. 29, use by the lessor for a time of the roof of the demised premises as a washroom. In Grabenhorst v. Nicodemus, 42 Md. 236, refusal by lessor on a lease of a distillei-y to give a certificate that was required by law to enable lessee to get a license, without which he could not work the distil- lery, was held an eviction. In an action for damages in obstructing the lights of the plaintiff's tenement, brought by a tenant for a year against his landlord during the term, he can only recover damages for the time which had elapsed when the suit was commenced, and not for the whole term. Blunt v. MoCormick, 3 Den. 283. 2 But not if the supply ceases through drouth or other causes, although the lessor expressly covenanted to supply the premises with water as they were then supplied, — i.e. from a natural spring flowing through pipes. Ward V, Vance, 93 Pa. St. 499. But where, the landlord being bound to repair, in consequence of want of repair of water-pipes a tenant was deprived of the easement to use water, and abandoned the premises, it was held that the landlord could only recover rent for the period during which the premises were occupied. West Side Savings Bk. v. Newton, 76 N. Y. 616. 2 Salman v. Bradshaw, Cro. Jac. 304; Ludwell v. Newman, supra; Andrews v. Paradise, 8 Mod. 318. But in Elliott v. Aiken, 45 N. H. 30, on a lease of preniises with a steam-engine, not mentioned specifically in the lease, a withdrawal of power from the engine and entry on the demised premises to cut holes for belting from the engine, was held no eviction. * Andrews v. Paradise, supra. So an action may be maintained on this covenant for the disturbance of a way of necessity. Per Mansfield, C. J., in Morris v. Edginton, 3 Taunt. 24. SEC. I.] FOR QUIET ENJOYMENT. 363 messuage with a garden, and a house or office at the further end thereof, a covenant for the quiet enjoyment of the demised . premises was held to be broken by the building of a mansion- house on part of the garden.^ § 316. Immoral Acts of Landlord equivalent to Eviction. — The tenant may also be deprived of the enjoyment of the premises by the gross moral turpitude of the landlord ; and his conduct will then be equivalent to an eviction. In a case in New York where the lessor habitually brought lewd women under the same roof with the demised tenement, whose outcries and indecent conversation destroyed the tenant's beneficial occupancy ; in consequence of which he quitted, — this was held to be an eviction.^ But this has been considered an extreme case.^ And if a tenant abandons the premises and resists the payment of rent subsequently accruing, on the ground that other apartments in the same building, adjoining or below his, are occupied as a place of riot and prostitution, he must show that his landlord created the nuisance by leasing the apart- ments for that purpose, or that it existed by his connivance and consent.* 1 Kidder v. West, 3 Lev. 167. In a similar case, where the lessee held under a lease for ten years it was held that equity would interfere to re- strain the erection of the building, since the damage to the lessee might properly be considered as irreparable. Eaband v. Frank, 7 Mo. App. 64. But where the tenant holds from month to month only, he has not such interest as to entitle him to an injunction to restrain a nuisance injurious to his possession. Clarke v. Thatcher, 9 id. 436. 2 Dyett V. Pendleton, 8 Cow. 727. This case is doubted in Gray v. GafE, 8 Mo. App. 329. 3 See Etheredge v. Osborn, 12 Wend. 529, 532 ; Ogilvie v. Hull, 5 Hill, 52, 54 ; Royce v. Guggenheim, 106 Mass. 201, 204. * Gilhooley v. Washington, 4 N. Y. 217. In this case, Bronson, C. J., says : " In the equitable action for use and occupation, the English courts hold that the tenant is not answerable, unless he has had the beneficial enjoyment of the property, and they have gone a great way in protecting the tenant against disturbances of all kinds ; but the principle of these cases has never been applied to an action of covenant for the non-payment of rent, which does not depend on the act of occupation or enjoyment." And even where the action is for use and occupation, he will be liable until he quits. De Witt v. Pierson, 112 Mass. 8. 364: THE landlord's covenants. [chap. VIII. § 317. Damages for Breach of the Covenant. — The rule of damages in an action for the breach of the covenant of quiet enjoyment in leases which formerly prevailed was to give nominal damages and costs only with such mesne profits as the tenant was compelled to pay the true owner .^ But it has never been regarded with much favor by our courts, and has therefore been relaxed and modified from time to time, in order to prevent the injustice which might otherwise be done to lessees in particular cases. Thus where a lease was made to commence from a future day, and the owner, before the commencement of the term, leased the premises to another person, it was held that the original lessee was not limited to his action of ejectment, but might sue for damages for a breach of the implied agreement to give him possession, and recover the difference between the rent reserved in the lease, and the full value of the term.^ So in an action against a lessor, for a refusal to give possession of the demised premises, the lessee was allowed to recover the damages arising from the expenses incurred in preparing to remove to -and occupy the premises, with the real value of the rent, and the sum agreed to be paid.^ 1 Kelly V. Dutch Ch., 2 Hill, 105; Mock v. Johnson, 1 id. 99; Baldwin V. Munn, 2 Wend. 399. This rule was derived from that in regard to conveyances in fee, where the grantor was only held to repay the con- sideration money and interest; and as the tenant was relieved of rent, which was the consideration paid by him, it was thought he should not receive anything for the market value of his term over this. 4 Kent, Com. 479; Flureau v. Thornhill, 2 W. Bl. 1078; Conger v. Weaver, 20 N. Y. 140; Bender v. Fromberger, 4 Dall. 441. A more liberal rule has, how- ever, prevailed latterly. Thus upon an executory contract to give a lease and a failure or refusal to give it, while the former rule of damages was applied, if the inability or refusal was without any fault or fraud on the part of the party promising to execute it, — where, on the other hand, the refusal to give the lease resulted from the fraudulent conduct of the de- fendant, — consequent special damages, on proper allegations being em- bodied in the complaint, might be recovered. Per Bosworth, J., 1 Duer, 342 ; citing Baldwin v. Munn, 2 Wend. 399 ; Peters v. McKeon, 4 Den. 546 ; Bitner v. Brough, 11 Pa. St. 127. But in Pennsylvania, when an evic- tion occurs by paramount title, without fraud on the lessor's part, the former rule is adhered to, and merely nominal damages are allowed. Lanigan v. Kille, 13 Phila. 60; s. c. on appeal, 97 Pa. St, 120. 2 Dean v. Roesler, 1 Hilt. 420; Trull v. Granger, 8 N. Y. 115. * Giles V. O'Toole, 4 Barb. 261. A lessee, by taking possession under SEO. I.] EOE QUIET ENJOYMENT. 365 In a similar case the same court held that the plaintiff's dam- ages were not confined to the mere difference of rent which he might have obtained, over and above what he was to pay, but that the jury might look to the actual value of the bargain which he had made.^ It has also been held that when a ten- ant was evicted before the expiration of his term, in a case where the landlord had it in his power to prevent the ouster but did not, he might recover the difference between the value of his lease for the unexpired term, and the rent he had stip- ulated to pay .2 The principle of these decisions was subse- quently confirmed, and it is now held that on a breach of the covenant for quiet enjoyment in a lease, whether express or implied, where an eviction Is occasioned through any fault of the lessor, the measure of damages is the value of the unex- pired term, less the rent reserved.^ The courts of Massachu- a lease which he was induced to accept by fraudulent representations, waives thereby only his right to rescind the contract, and not his right to recover the damages occasioned by the fraud. Whitney v. Allaire, 1 N. Y. 305. 1 Driggs V. D wight, 17 Wend. 71. "I understand this to be a recog- nized and well-settled distinction, that if an executory vendor has it in his power to perform his contract, and refuses to do so, or has wrongfully put it out of his power, he takes himself out of this rule (of Kelly v. The Dutch Church), and becomes liable under the general rule for the value of the estate at the time it was to have been conveyed. So, in case of a covenant for title iu an executed conveyance, if the covenantor himself becomes an actor in ousting his grantee, he puts himself out of the pro- tection of this arbitrary rule of damages, and becomes liable upon his broken covenant for the value of the estate he was instrumental in taking from his grantee." Per Hasten, J., in Mack v. Patchin, 29 How. 20. 2 Chatterton v. Fox, 5 Diier, 64. And if evicted at a season of the year when the expense of removal is greater than it would have been at the expiration of the term, he may also recover the extra expense. Id. See also Rickett v. Lostetter, 19 Ind. 125; Shaw v. Hoffman, 25 Mich. 162; Wilson v. Raybould, 56 111. 417 ; Dyer v. Wightman, 66 Pa. St. 455. And even exemplary damages may be given if the ouster is attended with circumstances of aggravation. Smith v. Wunderlich, 70 111. 426. 8 Mack V. Patchin, 42 N. Y. 167; Denison v. Ford, 7 Daly, 384; Same V. Same, 10 id. 412. In England the old rule (as laid down in Kelly v. Dutch Church) is repudiated in two well-considered cases. In Williams , V. Burrell, 1 Mann. G. & S. 402, it was held, after elaborate argument, that the lessee, on breach of the covenant for quiet enjoyment, was entitled to recover the value of the term lost, as well as the mesne profits 366 THE landlord's covenants. [chap. VIII. setts and the other Eastern States have never adopted the narrow rule above referred to, but have uniformly held that the measure of damages on an eviction is not to be estimated by the amount of rents, or the lessee's profits, but simply by the real improved value of the lease at the time of the evic- tion.^ Where the eviction has been only partial, the recovery is of course proportioned to the value of that part of the prem- ises to which the title has failed.^ SECTION II. THE COVENANT AGAINST INCUMBRANCES. § 318. What constitutes an Incumbrance. — Another cove- nant on the part of the landlord important to the tenant is for indemnity against incumbrances, or that the tenant shall enjoy the premises free from incumbrances made, or to be made, by the landlord, his heirs, or assigns. Without this covenant a tenant may be obliged to defend his possession, in the middle paid to the owner of the paramount title. In Locke v. Furze, L. K. 1 C. P. 441, after extended arguments and a full review of English and Ameri- can authorities, the same conclusion was reached. " The true measure of damages for the breach of such a contract is what the plaintiff has lost by the breach." Per Blackburn, J. 1 Dexter v. Manley, 4 Cush. 14; Gore v. Brazier, 3 Mass. 523; Hardy ». Nelson, 27 Maine, 525; Hosford v. Wright, Kirby, 3. In Fillebrown v. Hoar, 124 Mass. 580, it was held that the evicted tenant might recover damages for injury to his feelings caused by the eviction, but not for injury to his health. The value of the property at the time of the eviction is the proper measure of damages. Smith v. Strong, 14 Pick. 128; Cas- well V. Wendell, 4 Mass. 108; Jewett v. Brooks, 134 Mass. 505. " On the question of damages, it is competent for a lessee to prove the condition and capacity of the works from which he has been evicted, with the cost of manufacturing the articles, and their price at the store, as well as in the market." Per Shaw, C. J., in Dexter v. Manley, supra. And the same rule is now generally followed throughout the United States. See cases supra. 2 Morris v. Phelps, 5 L. R. 49; Hunt ». Orwig, 17 B. Mon. 73. The just and true rule is that the proportional value and not the quantity, of the several parts of the land, should be the measure of damages. Cornell V. Jackson, 3 Cush. 506. See also Michael v. MUls, 17 Ohio, 601. SEC. II.] AGAINST ENCUMBRANCES. 367 of an advantageous term, by reason of some prior incumbrance, or be subjected to the burden of some inconvenient easement unknown to the tenant, when he accepted the lease, and have no adequate redress for the injury he may sustain. On gen- eral principles every right to, or interest in land, granted to the diminution of the value of the land, but consistent with the passing of the title, is deemed in law to be an incumbrance.^ An inchoate right of dower, or a right of way over the prem- ises are of this description. So the owner of one of two ad- joining lots may be bound by prescription to maintain the whole of the division fence between them. All such ease- ments amount to incumbrances on the land.^ And it may be well, therefore, for a lessee before accepting a lease to inquire whether the lessor himself may not hold for a term of years, and if so, whether there may not be some restriction in his lease, that may render the property unfit for the purpose he designs it for, and whether the rent reserved on the original lease, with the taxes and assessments in respect thereto, have been paid. § 318 a. Liability of Life Tenant to keep down Incum- brances. — The obligation to protect a tenant against such incumbrances arises only in favor of a tenant for years, for if a life estate is charged with an incumbrance, the tenant is entitled to no such indemnity from the remainder-man ; since he is bound in equity to keep down the interest, taxes, ground rents and such other annual charges as accrue during his occupation out of the profits of the estate. He is not charge- able with the incumbrance itself nor bound to extinguish it;^ 1 Per Parsons, C. J., in Prescott v. Trueman, 4 Mass. 627. Words sounding in covenant only may operate by way of granting an easement ■whenever it is necessary to give them that effect in order to carry out the manifest intention of the parties. Greene v. Creighton, 7 R. 1. 1 ; Holmes V. Seller, 3 Lev. 305. 2 Adams u. Van Alstyne, 25 N. T. 232; Bronsonti. Coffin, 108 Mass. 175. 8 Swaine v. Ferine, 5 Johns. Ch. 482; Saville r. Saville, 2 Atk. 463; Shrewsbury v. Shrewsbury, 1 Ves. 233; 4 Kent, Com. 74. Tenant for life is bound to pay the annual taxes from the income of the property : Cairns v. Chabert, 3 Edw. 312; Prettyman v. Walston, 34 111. 175; Varney V. Stevens, 34 Me. 361; Hughes v. Young, 5 Gill & J. 67; McMillan v. 368 THE landlord's covenants, [chap. vin. although he must pay a just proportion of any assessment for a permanent public improvement, made during his time, which benefits the inheritance.^ But he contributes only during the time he enjoys the estate ; and where there are successive life estates, and a subsequent life tenant is compelled to pay arrears of interest upon charges affecting the inheritance which had accrued during a prior life estate, he is entitled to repayment out of the inheritance.^ If he neglects to discharge the taxes, or such other charges as are incumbent upon him, a temporary receiver may be appointed to lease out the premises, until he collects rent enough to pay off such charges.^ If the incum- brancer neglects to collect his interest from the tenant for life, he may still collect all arrearages from the remainder- man ; * and the estate of the tenant for life would be bound to indemnify the remainder-man for the arrearage of interest accrued in his life-time ; since the tenant for life must keep down the interest, even though it should exhaust the rents and profits ; and the whole estate is to be at the charge of the principal in just proportions.^ Kobbins, 5 Ohio, 28; Burhans v. Van Zatidt, 7 N. T. 523; Trustees v. Dunn, 22 Barb. 402; and he is also chargeable with an equitable appor- tionment of assessments for local improvements: Fleet v. Borland, 11 How. Pr. R. 489. A water tax specifically charged for a particular use, exclusively confined to the apartments of the tenant for life, should be borne wholly by such party. Graham v. Dunigan, 2 Bosw. 516; Booth v. Ammerman, 4 Bradf. 129, 216. So held also where there was a devise of a dwelling-house to the wife of the testator for life, although stated in the will to be free and clear of all incumbrances. Lawrence v. Holden, 3 Bradf. 142 ; and see Hepburn v. Hepburn, 2 id. 74. 1 Sarles v. Sarles, 2 Sandf . Ch. 601 ; Mosely v. Marshall, 23 N. Y. 200. Such assessments are usually apportioned between the life tenant and the residuary owners, according to the age of the life tenant. Miller's Estate, 1 Tuck. (N. Y. Surr.) 346; Peck v. Sherwood, 56 N. Y. 615. This rule was also applied to insurance on the property and to lightning- rods affixed thereto. Jd. As to the tenant's liability under his express covenant to pay taxes, &c., see post^ § 398. * Casbome v. Scarfe, 1 Atk. 603; Penrhyn v. Hughes, 5 Ves. 99; Bur- hans V. Van Zandt, 7 N. Y. 523 ; Kirwan v. Kennedy, 4 Ir. Eq. R. 499. * Cairns v. Chabert, supra ; Hughes v. Young, 5 Gill & J. 67. * Roe V. Pogson, 1 Madd. 582. ' 4 Kent, Com. 74; Rowel v. Walley, 1 Rep. in Ch. 218; Mosely v. Mar- shall, supra. SEC. II.] AGAINST INCUMBRANCES. 369 § 319. Generally, prospective Disturbance will constitute Breach of. — In order to justify legal proceedings on this cove- nant, it is not necessary that the tenant should be actually prevented from enjoying the premises. The chance alone of his being disturbed, and his liability to satisfy claimants, or, in other words, the mere existence of an outstanding incum- brance which may defeat the estate, will constitute a techni- cal breach of the covenant, notwithstanding the incumbrance is suffered to lie dormant; yet nothing more than nominal damages can be recovered before an actual injury has been sustained.^ But if the covenant merely extends to protection against certain incumbrances, it is broken only by an entry and expulsion from the premises, or some disturbance in the possession in consequence thereof.^ To an action on a cove- nant contained in the assignment of a lease, for enjoyment free and clear of all arrearages of rent, assigning as a breach that the rent was in arrear and unpaid, it was held sufficient, for the defendant to plead that he left so much money in the hands of the plaintiff as would suffice to discharge the rent then in arrear to the lessor.^ But if a lessee, subject to a condition for re-entry on non-payment of rent, underlets and covenants for quiet enjoyment, without the interruption of himself or of any other person occasioned by his procurement or consent, his default in paying the rent, by means whereof the under-lessee is evicted, is clearly a breach.* § 320. Previously existing Mortgages. — A covenant against incumbrances, if broken by a mortgage previously given by the grantor, is broken at the time the deed is delivered ; ^ and 1 Jenkins v. Hopkins, 8 Pick. 346; Chapel v. Bull, 17 Mass. 220; Barrett v. Porter, 14 id. 143; People v. Nelson, 13 Johns. 340; Jackson v. Sternberg, 20 id. 49. 2 Anderson v. Knox, 2 Ala. 156. When a fraudulent concealment of incumbrances will justify a rescission of the contract, see Cullum v. Br. Bank, 4 Ala. 21. 8 Griffith V. Harrison, 4 Mod. 249. < Stevenson v. Powell, 1 Bulst. 182. * Bean v. Mayo, 5 Greenl. 94; IngersoU ». Jackson, 9 Mass. 495; Stewart v. Drake, 4 Halst. 141; Funk v. Voneida, 11 S. & R. 109; Davis V. Lyman, 6 Conn. 249; Stanard v. Eldridge, 16 Johns. 254; Wyman v. Ballard, 12 Mass. 304; Hall v. Dean, 13 Johns. 105. VOL. I. — 24 370 THE landlord's covenants, [chap, viil the party need not, as we have seen, be actually evicted, to enable him to sustain an action.^ And an exception imme- diately following such a covenant, of a certain mortgage to a specified amount, operates as a qualification of the covenant, which is broken if the mortgage exceeds that amount.^ But if a lease for years is cut off by the foreclosure of a mortgage executed prior to the lease, the lessee will have an equitable interest, to the extent of the value of the remainder of his term, in the surplus moneys arising from the sale of the premises; and the court will order payment to be made to him or his assigns, after satisfaction of any prior claims there may be upon the equity of redemption. Nor does the applica- tion of this rule seem to be incompatible with any additional claim for indemnity which the tenant may have under this covenant.^ § 321. other pre-esdsting Incumbrances. — An assessment for a street opening is an incumbrance from the time of the order to open, and is a breach of this covenant, although the grantor had only constructive notice of its widening at the time he executed the lease. The liability to the assess- ment is not created by the adjudication which confirms the assessment, but by the fact that benefit is received from the widening, — and is to be estimated as of the former date.* A pre-existing right to pass over the land to take water from a spring in it is a breach of this covenant ; so also is a public highway over the land,^ or a right to use a wall upon the demised premises as a party-wall.^ And evidence is not ad- 1 Chapman v. Holmes, 5 Halst. 28; Garrison v. Sandford, 7 id. 261; Tufts V. Adams, 8 Pick. 547. 2 Potter V. Taylor, 6 Vt. 676. « Clarkson v. Skidmore, 2 Lans. 238; 46 N. Y. 297. * Cochran t- . Guild, 106 Mass. 29 ; Jones v. Boston, 104 id. 461. « Harlow v. Thomas, 15 Pick. 66; Mitchell v. Warner, 5 Conn. 497; Herrick v. Moore, 19 Me. 313; Butler v. Gale, 27 Vt. 739. Otherwise as to a public highway in actual use: Scribner ». Holmes, 16 Ind. 142; or a mortgage which the covenantee is bound to pay: Watts v. Welman, 2 N. H. 458. « Giles V. Dugro, 1 Duer, 331. But a party-wall which creates a com- munity of interest between adjoining proprietors is not a legal incum- brance. Hendrick v. Stark, 37 N. Y. 106. SEC. II.] AGAINST lUCUMBBANCES. 371 missible to show that the grantee knew of the existence of the easement when he accepted the lease.^ It has been held, also, that a previous sale of part of the land, by articles of agreement to that effect, is an incumbrance on the legal es- tate.2 So an inchoate right of dower is an existing incum- brance, and not a mere possibility or contingency." And an agreement for an underlease, and to take the furniture at a valuation, may be considered void, if on taking possession, the rent is found to be in arrear, and a charge on the goods.* The words permitting and suffering do not bear the same meaning as knowing of and heing privy to; the meaning of the former is, that the party shall not concur in any act over which he has control, and such a covenant extends only to such permissive acts of the lessor as had through that per- mission an operative effect in charging the estate.^ If a covenant against incumbrances has been broken before an assignment by the lessee, and the incumbrances have not been removed, thtf covenant will pass to the assignee, so as to entitle him to any damages he may sustain after the as- signment; for this is not a mere assignment of a chose in action, but there is a continuing breach, and the ground of damage has been enlarged since that time.® § 322. Damages for Breach of Covenant. — The rule of dam- ages, upon the breach of a covenant against incumbrances, is said to be the amount which the plaintiff has lawfully paid to discharge the incumbrance ; but if he has not paid off the incumbrance, he is still entitled to nominal damages, because an outstanding incumbrance is a technical breach of the cove- nant, although it does no harm, until he is evicted under it, or until he pays it, which he may do without waiting to be 1 Kellogg V. Ingersoll, 2 Mass. 97; Hubbard v. Norton, 10 Conn. 431; Prichard v. Atkinson, 3 N. H. 335. This seems to have been doubted in a New York case. Whitbeck v. Cook, 15 Johns. 483. ^ Seitzinger v. Weaver, 1 Rawle, 382. » Porter ». Noyes, 2 Greenl. 22. * Partridge v. Sowerby, 3 B. & P. 172. « Hobson V. Middleton, 6 B. & C. 296. • Sprague v. Baker, 17 Mass. 586. 372 THE landlord's covenants, [chap. viii. evicted.^ And after he has heen evicted, the cost he was put to in defending the action by which he was evicted will form part of the damages he will be entitled to recover .2 With re- spect to an incumbering easement the rule of damages is said to be the proportionate value of the easement, to the value of the demised premises.' SECTION III. FOR PUETHEB ASSURANCE. § 323. Defined. — Implied in Covenant for Quiet Enjoyment. — Runs with the Land. — A third covenant on the part of a landlord which is sometimes inserted in a lease is the cove- nant for further assurance ; by which the lessor contracts that he will at any time perform and execute* such further rea- sonable acts, writings, and conveyances of or relating to the premises, as the lessee's counsel may legally advise to be necessary for completing the transfer of such an interest, or term, as the parties have contracted for. This covenant is not usually introduced, because the covenant for quiet enjoy- ment necessarily implies that the lease is perfect, as a good 1 Dimmick v. Lockwood, 10 Wend. 142; Delavergne v. Norris, 7 Johns. 358; Hall o. Dean, 13 id. 105; Stanard v. Eldridge, supra; Prescotti). Trueman, 4 Mass. 627; Garfield v. Williams, 2 Vt. 327; Garrison v. Sandford, 7 Halst. 261. In an action on the covenant of seisin, for the purpose of ascertaining the measure of damages, the true consideration, and the fact that only part of it has been paid, may be shown by parol, although the deed expresses a different consideration, and acknowledges that the whole of it has been paid ; and there is no occasion, in such a case, to resort to a ooiirt of equity for relief. Bingham v. Weiderwax, 1 N. Y. 509. 2 Waldo V. Long, 7 Johns. 173. The amount fairly paid to remove the incumbrance will be the measure of damages : Comings v. Little, 24 Pick. 266; though paid after the action has been commenced: Brooks e. Moody, 20 id. 474. But if the sum paid exceeds the whole value of the estate, the measure of damages is that value only. Norton v. Babcock, 2 Met. 210. ^ Giles V. Dugro, supra. SEC. III.] FOB FURTHER ASSURANCE. 373 and Talid demise; and the granting of an imperfect lease, would therefore be a breach of the latter covenant. It is always, however, inserted in conveyances of freehold property, and sometimes also in assignments of leasehold premises; and its great advantage is that where a defect is discovered in the title, which can be supplied by the grantor, the grantee may file a bill for specific performance. It is a covenant run- ning with the land, of which an under-tenant may avail him- self, as well as the original lessee ; ^ and may be important to both, inasmuch as it relates to the title of the lessor, and also to the instrument of conveyance ; operating as well to secure the performance of all acts for supplying defects in the former, as to remove all objections to the sufficiency and security of the latter. § 324. Obligations of Lessor under. — If there be a defect in the title, the lessor will be decreed, under this covenant, to convey to the lessee such a title as he may afterwards obtain ; even although he may have acquired it by purchase, and for a valuable consideration.^ Under it also a lessee may require the removal of a judgment, or other incumbrance which en- dangers his possession.^ And where a defendant, by an agree- ment of present demise, let certain premises to the plaintiff, which the parties in possession refused to surrender, it was held that the defendant was bound to put the plaintiff in pos- session, as a contract to do so was implied in such letting ; and that the plaintiff might maintain an action for the breach of such a contract, and was not obliged to resort to an action of ejectment against the wrongful occupant.* But where a party covenanted that he had not done, or permitted, nor suffered to be done, any act whereby the estate was incumbered, it was held that his assent to an act which he could not have pre- 1 Middlemore v. Goodale, Cro. Car. 503. 2 Middlebury College v. Cheney, 1 Vt. 336; Taylor v. Debar, 1 Ca. in Ch. 274; s. c. 2 id. 212; Seabourne v. Powell, 2 Vem. 11; and see Lang- ford V. Pitt, 2 P. Wms. 630. ' King V. Jones, 5 Taunt. 427. A mortgagor is not bound to release his equity of redemption. Atkins v. Uton, 1 Ld. Ray. 36. « Coe V. Clay, 5 Bing. 440. 874 THE landlord's covenants, [chap. vin. vented was no breach of this covenant.^ Nor is an entry by the lessee a disseisin in fact, unless the entry be forcible, or with a manifest intention to disseise. A disseisin being the wrongful act of a stranger, it is no breach of the covenant against defects in the title, that the person under whom the vendor derives title had leased part of the premises sold to one who had afterwards entered on the premises demised.^ § 325. Reasonable Acts required by, are necessary Acta. — The term " reasonable act," generally made use of in this cove- nant, means such an act as the law requires to be done ; but if it be unnecessary, it is not a reasonable act, nor one which would be required by law. Therefore, a refusal to do some- thing which, if executed, would be useless and nugatory, — as, to direct trustees to raise money by mortgage to pay an an- nuity already provided for by a demise of the premises, — will not constitute a breach of this covenant.^ And to make such assurance as the lessee's counsel shall advise requires that the counsel shall give his advice, and that the covenantor shall be notified thereof. It also requires that the covenantee shall procure the instrument to be drawn and tendered to the covenantor for execution.* § 326. Obligation of Covenantor to execute Deed. — Accord- ing to the English cases, if a covenantor can read the pro- posed deed, he is bound to execute and deliver it immediately upon its being tendered to him for execution ; and he will not be allowed time to obtain the opinion of counsel, although he may not be acquainted with the legal sense and operation of the words, or be able to know whether they are embraced in his covenant or not. But, if it is written in a language he does not understand, he may refuse to deliver it until he can 1 Hobson V. Middleton, 6 B. & C. 295. '^ Jerritt v. Weare, 3 Price, 575. A wrongful possession does not di- vest the title of the person against whom possession is held adversely. Doe V. Hull, 2 D. & R. 38. ' Warn v. Biokford, 9 Price, 43. * Bennet's Case, Cro. El. 9; Stafford v. Bottome, id. 298; Baker v. Bulstrode, 1 Mod. 104. SEC. IV.] TO EEPAIR. 375 procure some one to explain it to him.^ The same rigidity, however, does not appear to exist in our law ; for in an ac- tion upon a covenant for further assurance, " as by the plain- tiff or his counsel should be reasonably devised, advised, or required," the breach assigned was that the plaintiff had re- quested the defendant to make a lawful and reasonable assui^ ance to the plaintiff of the right of dower of defendant's wife, yet the said defendant had not made such assurance,