dlortif U ICam ^rijnol IGibtarg irwr r^r. ^£5''!;*" University Library KF 590.T24 1866 *,!«nm?'®® on the American law of landio 3 1924 018 801 245 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/cletails/cu31924018801245 TEEATISE THE AMEKICAK LAW LANDLORD AND TENANT; BMBKACING THE STATUTORY PROVISIONS AND JUDICIAL DECISIONS OF THE SEVERAL UNITED STATES IN REFERENCE THERETO. A SELECTION OF PRECEDENTS. Jottrtfi lEtiti'an. By JOHN N. TAYLOR, COnNSELLOB AT LAW. BOSTON: LITTLE, BEOWN, AND COMPANY. 1866. ^^-iS^ff-^ M^o?"^ Entered according to Act of Congress, in tlie year 1866, by JOHN N. TAYLOR, In tlie Cleric's Office of the District Court of the United States, for the Eastern District of New York. CAMBRIDGE: PRESS OF JOHN WILSON AND SONS. Wilis iFamt^ IEtittt0n LAW OP LANDLOED AND TENANT IS RESPECTFULLY DEDICATED THAT HONORABLE PROFESSION, FOB WHOSE USE IT IS PEINCIFALLT DESIGHED, AND WHOSE GENEROUS APPROVAL HAS ANIMATED AND REWARDED THE LABOR THE AUTHOR. PREFACE. The following attempt to reduce the Law of Landlord and Tenant to a more than ordinarily concise and system- atic form will, it is hoped, meet with the indulgence of the profession for whose use it is principally designed. The learned and voluminous works of Woodfall, Chambers, Comyn, and Piatt, are, to a considerable extent, useless in this country; not from any want of accuracy, fulness, or perspicuity, but from their failing to exhibit a correct view of this branch of law, as modified by our republican insti- tutions, alxd reformed by the commercial spirit of our age. A full exposition of the law on this side of the Atlantic, on a subject of such daily and hourly interest, has, therefore, become a matter of importance, not only to the profession, but to the entire community. This work does not aspire to the merit of having achieved so desirable an object, but is merely intended to present a plain, 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 leading decisions in those States where legal science has been most cultivated and improved. VI PREFACE. Some topics have been introduced, which are not usually discussed in treatises on this subject, but are still intimately connected with it. Beginning with the several modes of creating a tenancy, its varieties, commencement, and termi- nation, the work proceeds to treat of the formal parts of the instrument of demise, its execution, and the capacity of the various contracting 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, commons, fisheries, watercourses, removal of buildings, and support from neigh- boring 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 dis- solving a tenancy, and the consequences of a dissolution, including the penalty of holding over, the right to emble- ments, 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 opin- ion of some, the subject would seem to warrant, it is to be borne in mind that the admission of every thing connected incidentally, as well as directly, with the relation of landlord and tenant, would have increased the work to an extent inconsistent 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 PREFACE. Vll 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 exhibit- ing so accurate and concise an exposition of his subject as will be useful to practical men, whether in or out of the profession. PREFACE THE FOURTH EDITION. In this edition, the work has been again revised and cor- rected, and some additions made to the text. Very little, if any, alteration will be found in the original plan of treating the rights of the parties, or their remedies. Although Codes of Procedure have, since our first publication, blended, and in many respects simplified, forms of action, "yet the com- mon-law divisions at first adopted seem best calculated to elucidate the general principles of pleading and of practice ; while they continue to form the basis of much legislation, that is not yet repealed in the United States. The articles telating to summary proceedings on the part of the land- lord to recover possession of his premises, as well as to that of a forcible entry and detainer, have been re-written and considerably enlarged ; and a full set of precedents of pro- ceedings, in each case, has been added. A large addition of notes embraces many important decisions which have been made since the last edition, and may, to some extent at least, render the work more.worthy of the very liberal favor with which it has been received. Brooklyn, N.Y., January, 1866. TABLE OF CONTENTS. Pase Inteoduction I CHAPTEE I. 77ie Creation of a Tenancy 10 Sect. 1. A tenancy by implication 13 2. „ by express agreement 19 3. Of an agreement for a lease 26 CHAPTEE II. The different species of Tenancy. Sect. 1. Leases for life 35 2. ■ „ for years 37 3. „ at will 40 4. Tenancy at sufferance 43 5. Demise of lodgings » 45 CHAPTEE III. The Duration of a Tenancy. Sect. 1. The commencement of a lease 47 2. The termination of a lease 50 CHAPTEE IV. The Contracting Parties 57 Sect. 1. Leases by infants 63 2. „ persons of unsound mind 65 3. „ and to married women 68 4. „ tenants for years or for life 72 5. „ joint tenants and tenants in common 76 X CONTENTS. Sect. 6. Leases by mortgagor and mortgagee 79 7. „ corporations 83 8. „ trustees 86 9. „ executors and administrators 88 10. „ guardians 89 11. „ committees and receivers 90 12. „ agents 91 13. „ aliens 95 CHAPTER V. The Instrument of Demise. Sect. 1. The formal parts of a lease 97 2. The execution of a lease Ill CHAPTER VI. Rights and Liabilities generally incident to a Tenancy 117 Sect. 1. On the part of the landlord 118 2. „ of the tenant 120 3. Division-fences and party-walls 127 4. Liability for negligence 136 5. Of nuisances 144 6. Of easements 153 (a). A right of way 154 (5). Commons 157 (c). Fisheries 159 (d). Watercourses 162 (e). Removal of buildings 166 (/). Support from neighboring soil and buildings . . . 168 (^). How created and extinguished 171 CHAPTER Vn. Of Covenants and Conditions. Sect. 1. Of covenants 177 2. Of conditions 193 CHAPTER Vin. Covenants on the part of the Lessor. Sect. 1. The covenant for quiet enjoyment 214, 2. „ against encumbrances 224 CONTENTS. XI Sect. 3. The covenant for further assurance 227 4. „ to repair 229 5. „ to renew the lease 233 6. „ to pay taxes and assessments 241 CHAPTER IX. Qovenants on the part of the Lessee. Sect. 1. The covenant to repair, and herein of waste 244 2. „ to pay rent, and herein of eviction .... 264 3. „ to pay taxes and assessments 288 4. „ to insure 291 5. „ not to assign 293 6. „ to reside on the premises 301 7. „ to build after a certain pattern 301 8. „ against carrying on trades 302 9. „ for particular modes of cultivation .... 305 10. „ to redeliver fixtures 308 CHAPTER X. The transfer of a Lease, and its Consequences. Sect. 1. Assignments in fact and in law 309 2. The rights and duties of an assignee 316 CHAPTER XI. The Modes of determining a Tenancy. Sect. 1. By lapse of time 337 2. „ notice to quit 338 3. „ forfeiture 352 4. „ merger 364 5. „ surrender 367 6. Contingent modes *. 377 (a). Premises taken for public use 377 (S). Destruction of premises 378 (c). Using premises for an illegal purpose 379 (d). Tenant's disclaimer 380 CHAPTER XII. The Consequences of a Dissolution. .Sect. 1. The liability of a tenant holding over 381 2. Mutual privileges after dissolution 386 XU CONTENTS. Sect. 3. Tenant's right to emblements 389 4. Removal of fixtures S97 CHAPTER Xin. The LandlorcCs Remedies 409 Sect. 1. A distress for rent 410 2. Action of debt for rent 446 3. „ for use and occupation 461 4. A suit in equity for rent 476 5. Action of covenant 481 6. „ of waste 498 CHAPTER XIV. Of Possessory Remedies. Sect. 1. The action of ejectment 508 2. Summary proceedings to recover possession 522 CHAPTER XV. The Tenants Remedies. Sect. 1. Action for wrongful distress 541 2. " „ of replevin 546 3. „ of trespass 565 (a). Action of trespass on the case 569 CHAPTER XVI. Of Forcible Entry and Detainer 583 Appendix 593 mDEX TO CASES CITED. A. Section Abbot V. Allen 674 V. Bailey 106 V. Hanson 440 Abby V. Goodrich . . .... 445 Abeel v. Radcliff 22-80 Abercrombie v. Parkhurst .... 751 Absolon V. Knight 757 Academy of Music v. Hackett . . 379 Achorne v. Gomme 705 Acker v. Witherill 429 Ackerman v. Shelp . .... 243 Ackland v. Lutley 465 Acton V. Blundell 230 Adams v. Brerston ... . . 353 V. Crane 588 V. Essex 671 V. Freeman . . ... 765 V. Gibney 256, 305 u. La Combe 577 V. Pease . . ... 221 Addleman v. Way 784 Administrator of Darly v. Farrow . 631 Lee V. Ware . . 100 Agar V. Brown 508 Aikiu V. Albany V. & R. R. Co. . 246 TUtkenhead v. Blades . . . 613, 767 Albany Ins. Co. v. Bay 103 Albright v. Pickle 760 Alcott V. Prazer 772 Alderman v. Neate 42 Aldred's Case 200 Aldridge v. Harper 745 V. Stuyvesant 173 Alexander v. Alexander .... 138 V. Jameson 166 V. Mahon 350 V. Mann 276 Alford V. Vickery 479 Allen V. Bates 163 V. Bennett 36 V. Bryan 446 V. Craig 781 V. Crary 750 V. Crofoot 766 t,. Culver 18,262 h ' Section Allen V. Jaquish 468, 513 V. PeU 388 V. Smith 491 V. Thayer 710, 784 V. Wooley 260 Alsopp V. Patten 33 Alston V. Scales 173 Althorf V. Wolfe 178 Alwood V. Kuckman 24 Amenia, Overseers of, v. Overseers of Stanford 341 Amory v. Hamilton 138 Ancaster v. Milling 772 Anderson v. Martiudale 264 V. Darley 135 V. Harold 35 V. Lemon 114 V. Nesmith 785 V. Prindle 60 V. Tomkins 114 Andrew v. Hancock 396 V. Needham 366 V. Paradise 314 Andrew's Case 305 Andrews v. Pearce 707 Anthony v. Haney 191 Anthony Street, matter of ... 519 Anworth v. Johnson 343 Appleton V. Campbell 521 Archer v. Dudley 744 V. Hale- 745 V. Marsh 417 Arden v. PuUen 360 Argent v. Durant 532 Arkland v. Lutley 78 Armstrong v. Gilchrist 656 V. Schermerhorn . . . 189 V. Wheeler . . . 428, 449 Arnit v. Gamett 603 Arnold v. Poet 224 V. Hickman 100 V. Mundy 221 V. Patrick 169 V. Stevens 240 V. United States .... 78 Amsby v. Woodward 109 XIV INDEX TO CASES CITED. Arthur v. Vanderplank 438 Ashley v. Warner 60 Astin V. Summersett ... . 479 Astor V. Hoyt 263, 455 V. L'Amoreux 452 V. Miller 399 V. Turner 123 Atkins V. Boardman . . . 216, 239 V. Chilson .... 239 V. Utou . . . . . 324 Atkinson v. Digby . . . 58 Attenbergh v. People . . . 573 Attersol v. Stevens ... . . 344 Atty V. Parish 624 Attorney-General ;;. Cross . . 132 V. Fullerton . 179 V. Griffith . . 132 V. Hotham . . 132 V. Owen . . . 131 V. SitweU ... 49 V. Warren . . . 132 Auriol V. Mills 436, 620 Austin V. Hudson R. E. Co. . . 233 V. Sawyer 780 V. Whitlock 166 AveriU v. Taylor 39, 125 Ayery v. Cheslyn 550 V. MaxweU 186 Awder v. Nokes 89 Axford V. Perrott 743 Aylet V. Williams . . ... 382 Ayler v. Wilson 264 Ayres v. Harness ... . . 149 B. Babcock v. Lamb . 765 Bach V. Meats 612 Bacheloure v. Gage 436 Back V. Stacy 211 Bacon v. Bowdoin ... 88 u. Gryluig 157 V. Taylor 135 Badeau v. Tyler .... . . 657 Badeley v. Vigurs 365 Badger v. Phinney ... . . 739 Badkin v. Powell 606 Badlam v. Tucker . . 743 Bagley v. Freeman . . . . 450 V. Tyrrell 48 Bailey v. Delaplaine 507 V. Foster 479 V. Kilburn 629 V. Walker 420 V. Wells 509 V. Wright 565 Bailiff of Ipswich v. Martin . . . 384 Bain v. Clark 536 Bakeman v. Pooler 393 Baker v. Barney 106 «. Dumbolton 766 V. Fales 739 V. Gurratt 740 V. Glasscock 163 V. Gosling 426 Baker v. Harris . . . ■ . 738 V. HoltzsapfeU . . . . 645 V. Roe . 698 Baldwin v. Walker .... . 439 Ball V. Cullimore . 466 V. Duusterville . . . 141 V. GaUimore . 62 V. Herbert 215 Ballard v. Dyson . 215 Ballentine v. Poyner .... 353 BaUy V. WeUs . 269 Bancroft ;;. Wardell . . 686 Bank of Columbia v. Hagner . . 276 V. Patterson . 127 Bank of Pennsylvania v. Wise . 387 Eochester v. Gray . 166 United States v. Dandri Ige 127 Banks v. Angell . 756 Bannister v. Sadler . . . 848 Bantleon v. Smith .... . 565 Barber v. Eose . . ... . . . 874 Barfort v. FresweU .... . 246 Barlow v. Scott . . . . 160 V. Wainwright . . . . 55 Barker v. Barker ... . 178 V. Clark . . . 216 V. Dacie . 658 V. Pletvvell . . . . 269 V. Harrold .... 355 V. Hodgson .... . 519 V. Paul 587 V. Richardson . . . . 227 Barnard v. Darling .... . 682 V. Dutty .... . 679 u. GodscaU .... . 438 V. Leigh . 435 V. Martin .... . 164 V. Michel .... . 674 V. Poor 196 V. Vandusen . . . . 185 Barnecomb v. Brydes . 770 Barney v. Keith .... 39, 252 Barnfather v. Jordon . . . . 452 Baron v. Duncan's Executors . 413 Barr v. Van Buskirk . . . . 574 Barrett v. Blagrove .... 685 V. Buxton .... . 100 V. Porter . 319 Barron v. Richard . . . 201, 418 Barry v. Nugent ... . 41 V. Eyan ... . , . 724 Barton v. Fitzgerald .... . 249 Barton's Ca«e . 208 Barwick v. Foster . 390 Bastiu V. Christie . 168 Bates V. Shraeder .....' . 688 Bath and Montagu's Case . . . 150 Batten v. Earnby . 660 Batten's Case . 518 Batty V. Caswell ....'. . 138 Baugher v. Wilkins . . . . . 304 Baxter v. Brown 89 V. Bush . . . . ! . 423 V. Lansing .... . 489 V. Taylor . . . . ] . 178 Bayley v. Lawrence .... . 372 INDEX TO CASES CITED. XV Beach v. Grain 357 V. Favish 357 V. Gray 641 V. Nixon .... 272, 720 0. Sterns 250 Beal V. Saunders 363 V. Thompson 379 Bealey v. Shaw 224 Bean v. Mayo 820 V. Whistler 298 Beardslee v.. French 190 V. Knight 166 Beaty v. Gibbons 542 Becli V. Dyson 195 V. Eebow 544 Becltford v. Page 669 Beckwitli v. Howard 147 Beddingford v. Onslow .... 173 Beddoe's Executors v. Wads- worth 261, 309 Bedell v. Constable .... 133 Bedford v. McElheron 468 Beehy v. Coleman . .... 441 V. Parry . 446 Beecher v. Parmelee 523 Beers v. St. John . .... 546 Bees V. WilUaras 516 Belcher v. Mcintosh 359 Belden v. Carter . . . 167 Belfour v. Wesden 329 Belknap v. Trimble ... .224 BeU V. Potter 592 V. Twentyman 780 Bellasis v. Rurbriche . . . . 176 BelUngham v. Alsop '86 Bellows V. Sackett 268 Bemus v. Beekman .... . 759 Benedict v. Bebee 29 u. Field 394 Benjamin v. Benjamin . . 25, 720, 791 Bennet, ex parte 601 V. Pixley 265 V. Warren .... . 739 V. Womack . . ... 45 Bennett v. Bittle 162 V. Irwin ... ... 666 V. Ladhn 691 V. Reave 219 V. Robins 570 V. Scott 196 V. Vansyckle 332 Bennock v. Whipple 60 Benson v. Baldwin 656 V. BoUes 19 Bentley v. Watts ...... 675 Berkley v. Hai;dy 139 Berhn v. Norwich 90 Bern et ux v. Mattaire 749 Berriman v. Peacock 350 Berry v. Cable 221 V. Head 173 Bertie v. Beaumont 785 Best V. Brett 249 V. Stow 49 Betterman v. Pierce 374 Bettisworth's Case 162 Betts V. Perrine 265 Bevan v. Delakay 543 V. McDonald 97 Bevans v. Briscoe 53 Bewick v. Whitfield 178 Bickford «). Page 268 Biddesford v. Onslovy 173 Biddle v. Biddle 599 Bigelow V. Judson . . ... 580 V. Wilson 78 Billings V. Tucker 18 Bindover v. Tindercomb . . 704 Bingham v, Weiderwax .... 822 Binney v. Chipman ... . . 629 V. Hanna .... . 666 Birch V. Stevenson .... 163 V. Wright 112, 658 Bird V. Higginson 638 V. Holbrook 194 V. RandaU 671 Birdsall u. PhilUps 720 Bishop V. Doty ... . . 644 V. Howard 58 Bishop of Bath's Case 75 Bishop of Winchester v. Knight . . 658 Bissell V. Strong 225 Black V. Gompertz 36 V. Hepburne 698 Blackett v. Royal Ex. Co 588 Blackhall v. Coombs . . . . 659 Blackman v. Simmons 195 Blair v. Claxton 879, 886 Blake v. Crowningshield .... 78 V. DelisseUne 581 V. Ferris . . . 178, 192 V. Foster 130 V. Jerome . 173 V. Sanderson 437 Blanohard v. Baker 228 V. Hilhard 78 Blaney v. Beam 118 Bleecker v. Ballou 398 V. Bingham 258 V. Smith .... 410, 497 V. Whitford .... 705 Bliss V. CoUins 383 V. HaU 204 V. Mclntyre 165 Blood V. Goodrich 137 V. Humphrey . . . . 104 Bloom V. Gooder 793 w. McClaken 640 V. Waldron . .... 52 Bloomer v. Juhel . 754 Blundell v. Cotterall . ... 222 Blunt V. McCormick 815 Blyth V. Dennett 485 V. Smith 868 V. Topham 186 Boardman v. Mostyn 44 Bogardus v. Trinity Church ... 86 Bogert V. Debussy 139 Boggs V. Black 485 Bohannon v. Lewis 141 Boiling V. Mayor 90 Bolting V. Martin 650 XVI INDEX TO CASES CITED. Bone V. Eyre 265 Borastou v. Green 542 Bordman v. Osborn 616 Boston Bank v. Reed 124 Boston V. Binney 636 Bottom V. Bishop of Carlysle . . . 165 Bowen v. Jenkins 220 Bower v. Hill 173 Bowers v. Caton 32 Bowie's Case 62 Bowles V. Lyon ... . ? . 58 V. Poor 570 Boyland v. Warner . .... 137 Boynton v. Bobbitt 379 Bool V. Mix 93 Boom V. The City of Utica ... 203 Boot V. Wilson 652 Booth V. McFarlane .... 529 V. Stow . . 309 Brace v. Leonard . . .... 761 Bracebridge v. Buckley .... 495 Bracket v. Alford . . . 624 Bradbury v. Wright ... . . 560 Bradby v. The Governors, &c. . . 189 Bradish v. Schenck 24, 644 Bradley v. Corell .... 57, 80, 475 V. Davenport 651 V. Boot ' . . 428 Bradstreet v. Clarke 289 Brady v. Waldron 694 V. Weeks 201 Bradyde v. Ball 744 Brailsford v. Parsons . .... 248 Braintree v. Hingham . ... 90 Braithwaite v. Bjtchcock .... 429 V. Cooksey 580 Braman v. Bingham .... 169 Brandling v. Kent 606 Branscomb v. Bridges . . . 781, 767 Breckenridge's Heirs v. Ormsby . 95 Brecon Comp. v. Pritchard . . . 360 Breeding's Heirs v. Taylor's Heirs . 442 Breese v. Bange 504 Brent v. Haddon 210 Brereton v. Evans 87 Brett V. Cumberland 438 Brewer v. Dyer 427 V. Eaton 438 Brick Church v. The Mayor, &c., of New York 267 Bridge Pro. v. New Jersey ... 31 Bridges V. Blanchard . . . • 240 V. Hitchcock 334 V. Kilburne 693 V. Smith 565 Brigham v. Shattuek 276 Briggs V. Hale 377 V. Lowry 458 V. Oaks 424 BriU V. Flagler 204 Bristow V. Wright 626 Broadwell v. Getman 44 Brock V. Hewitt 47 Bromley v. Panning 694 Bronk v. Becker 185, 187 Broom v. Hore 384 Brook V. Noakes ^^^ Brooklyn Bank v. Degraw . . • 393 Brooks V. Humplu'eys 674 V. Tyler 704 Broughton v. Conway . ... 255 Brouwer v. Jones .... 206, 416 Brower v. Brown . . .... 98 V. Fisher 98 Brown v. Austin 167 V. Best . . . . . 227 V. Betts 720, 723 V. Caldwell 93 V. Cayuga B. R. Co. . . 206 V. Crump . . . 343 V. Dawson . ... 779 V. Dean . . . 153 V. Duncan ... ... 574 V. Dunn . . . 578 li. Dysinger . . ... 705 u. Fay . . . . . 601 V. Ferguson 391 V. Hare 488 V. Jarvis 603 V. Kennedy 221 V. Kite . . .... 291 V. Lindsay 102 V, Maxwell 199 V. Perkins 765 V. Powell 566 V. QuUter 309 V. Sace ...... . . 757 V. Scofield - . . 229 V. Shevill 588 V. Sims 583 * V. Stebbihs 674 V. Tighe 884 u. Windsor 231 V. Woodworth 175 Brown's Admr. v. Bragg .... 489 Brownell v. Flagler . . . . 199 Browning's Case 500 Browning v. Beston 588 V. Honeywood .... 252 V. Dalesme 179 V. Wright 250 Bruce v. Ruler 517 Brudnell v. Roberts 87, 362 Brummel v. Maepherson .... 410 Brunton v. Hall .... 157, 216 Brush V. Brainerd 184 Bryan v. Bough 236 Bryant u. Commercial Insurance Comp 540 Buck V. Binninger .... 25 720 V. Pike '421 Buckingham v. Bailey ..... 149 Buckland v. Butterfield 547 V. Hall 47 Buckley v. Taylor 573 V. WiUiams 306 Buckup V. Valentine 572 Buckworth v. Simpson 642 Buel V. Cook 40 V. Jordan 457 Buffington v. Geerish . . . . ! 739 Buill V. Cook 655 INDEX TO CASES CITED. xvai Eulkley v. Dolbear 354 Bulwer v. Bulwer . . .... 535 Bull V. Follett 246 V. Horlack 691 V. Sibbs 461 Bullen V. Deming 158 V. Mills 705 Bullock V. Dommitt 348 V. Wilson 698 BuUus V. Giddens 628 Bundy v. WiUiams 668 Burch V. Brewer 143 Burden v. Thayer .... 489, 632 Burdett v. Withers 359 Burhans v. Van Zandt 398 Burke v. Winkle . . ... 107 Burket v. Bande 558 Burkle v. Luce .... . . 744 Burn V. Miller ... . . 653 V. Phelps 627 V. Richardson .... . 560 Burnham v. Macpherson .... 410 Burnett v. Lynch ... ... 147 u. Scribner . . .720 a, 25 Burrell v. BuU 386 BurriU v. STahant Bank . . . . 128 Burrough v. Taylor . . . 493 Burr V. Van Buskirk 756 V. Bradley . 785 V. Phelps 649 Bush V. Brainerd 186 V. Cole 158 Butcher v. Butcher 83 V. Stapeley 32 Butler V. Kent 203 Butts V. Collins 630 Buxton V. Cornish .... 170 Buzzard v. Capel . . . 672 Byrd v. O'Harlin . . . . 739 Byrne v. Van Hosen ... . . 135 Byrom v. Johnson 662 C. Cabot V. Hoskins 29 Cade V. Brownlee .... . . 14 Cairns v. Chabert 318 Caldercott v. Smythies 543 Caldwell I). Baylis . . . . 690 V. Eukas 846 Callender v. Marsh 233 Calvert v. Frowd 472 Cameron v. McDonald 721 Cammeyer v. Lutheran Church . . 35 Camp V. McCormick 602 Campbell v. Arnold 173 u. Leach 188 V. Lewis 807 V. Mesier 189 V. Benwick 686 V. Sluelds 878 V. Smith 227 Canal Co. v. R. R. Co 288 Canfield v. Ford 160 Capenhurst v. Capenhurst .... 266 Capers v. Wilson 214 Carhart v. The Auburn Gas Light Co Carlisle v. McCall Carpenter v. Brown . V. Creswell V. Stevens V. Thompson Carrbane v. Smith Carr v. Elhson . . Carrick v. Blagrave 0. Blagrove Carris v. lugals Carrol v. Newton Carroll v. Read Carson v. Blaser Carter v. Burr . u. Carter V. Hammett V. Jarvis V. Muscot V. Newbold V. Bockett V. Warne Cartwright i'. Arnott Casborne v. Scarpe Case V. Degoes V. Hart . . V. Thompson Casey v. Buttolph Caswell V. Districh V. Lucas . Cates V. Waddington CatUn V. Barnard . V. Heyder . V. Valentine Cauiinan v. The Congregation, &o., Center v. Pinney 201 25 49 265 744 88 217 . 333 . 705 . 91 . 686 . 545 . 269 . 223 . 304 . 341 428, 444 . 782 . 222 . 792 . 766 . 329 . 456 . 251 . 318 . 784 363 . 184 . 503 24,26 . 666 223 264 173 201 707 197 Chalker v. Chalker 288 Challenor v. Thomas ... 698 Chalmers v. Vignaud's Syndic . . 466 Chamberlayne v. Dumwer . . . 697 Chamberlayn's Case ... . . 608 Chambers v. Ross 686 Champernoon v. Gubbs .... 657 Champlain & St. Lawrence R. R. Co. V. Valentine 170 Champlin v. Parish 137 Chancellor v. Poole 147 Chancellor of Oxford . . 126 Chandler v. Edson 765 V. Thurston . . 24, 62 Channon «. Patch ... . . 360 Chapman v. Black 26 V. Daltou 666 V. Holmes .... 268, 666 Chappie V. Brockway 416 V. BuU 319 Charman v. Patch . . . . 774 Chase v. Turner 713 Chaslewood v. Duke of Bedford . 85 Chastain v. Bowman 540 Chatterton v. Pox 378 Chauncey v. Arnold 149 Chaworth v. PhilHps 294 xnn INDEX TO CASES CITED. Cheesmau v. Hardham 220 Cheny's Case 616 Chess V. Chess 168 Chesterfield v. Bolton 355 Chetham v, Hampson . 175, 775 Chicliester v. Lethbridge . . . 210 Child V. Bayley 70 V. Chappell 89 Childs V. Clark 311, 430 Chiles V. Stephens 790 Chin V. EusseU 739 Chlusley v. Langley . . . . 417 Chipman v. Martin . . . . 665 Chirac v. Reinicker ... . 711 Chretien v. Doney . .... 728 Christine v. Witchell 253 Christman v. Floyd 572 Christopher v. Austin . . . 879 u. Sparke .... 121 Christy v. Casanave . . . . 178 Church V. Brown 44 V. Gilmau 68 V. Imperial Gas-light Co. . 20 Churchwardens of St. Saviour v. Smith 449 City of London v. Richmond . . . 449 V. Mitford .... 339 Clapham v. Moyle 246 Clapp V. Bromagham . . . . 86 V. Draper 886, 774 Claremont v. Carlton 229 Clarence v. Marshall 637 Claridge v. McKenzie 707 Clark V. Barlow 391 V. Foot 196 V. Fraley 661 )-. Gifford 169 V. Jones 288 V. Kirwan 199 V. Rochester 49 u. The Mayor, &c., of Syra- cuse 201 V. Webb 642 Clarke v. Adair . 739 V. Baird 168 V. Clark ....... 704 V. Cummings 351 V. Davies 757 V. Dixon 598 V. Hume 456 V. Imperial Gas Co. . . . 129 V. Jones 288 V. Moore 49 V. Wright 32 Clason V. Bailey .... . . 36 V. Gorley 118 V. Shotwell 794 Clavering v. Westley 657 Clay V. White 698 Clayton v. Blakeley 65, 79 V. Burtenshaw 40 V. Keinaston 630 Cleaves v. Willoughby . . . 176, 380 Clement v. Wheeler 697 Clennel v. Reed 395 Clifford V. Beams 592 Clift V. White 502 CUfton V. Walmsley 251 CUnan v. Cook 38, 46 Chne V. Black 357 CUnsty V. Tancred 642 Close V. Wilberforce ... . . 365 Clun's Case 493 Coates V. Cheever . . . . 345 Cobb V. Carpenter . . . 687, 681 V. Stokes 23 Coble V. Welborn 308 Cock V. Harris . 440 Cocker v. Crompton . .... 773 Cockson V. Cock 262 Codman v. Jenkins 640 Coe V. Clay . . 177 V. Watt 292 Coflan V. Heath 179 V. Lunt 475 V. Scott 521 V. Talman ... ... 444 Cohen v. Dupont ...... 380 Coker v. Pearsall 439 Colburn v. Richards 208 Colchester v. Arnott ...... 340 Golden v. Betts 728 V. Eldred 765 Cole V. Goodwin 640 V. Hawes ... ... 255 V. Howes 276 V. Patterson 890 V. Payson 884, 697 V. Robbins 100 V. White 33 Coleman v. Haight .... . 330 V. Maberly 512 V. Sherwin 668 V. Upcott 619 Cole's Case 262 Coles V. Coley 114 V. Marquand 577 V. Treeothick 33 Colgar V. Speer 601 Colgrave v. Dios Santos .... 662 Collect V. Hooper 340 V. Jacques 656 CoUey V. Kenneston 170 V. Streeton 368 ColUngs V. Hope §40 Collins V. Barrow ...'... 381 V. Benbury 223 V. Canty 485 V. Throughgood .... 669 V. Torrey 115 Colman v. Sherwin 329 Colston V. McVay 698 Colyer v. Sheer 604 Combe's Case 137 Commissioners of Canal Fund v. Kempshall I63 Commonwealth v. Bigelow . . . 786 V. Dudley .... 786 V. Harrington . . 521 V. Peters .... 764 u. Shattuck . . . 787 I'. Shaw .... 223 INDEX TO CASES CITED. XIX Commonwealth v. "Welcome Compton V. Allen . . Comstock V. Van Dusen Congreve v. Morgan V. Smith Conn V. Lewis . . Connah v. Hall . . Connelly v. Pierce Conner v. West Connor v. Bradley Conway v. Starkweather Converse v. Fern . Cooch V. Goodman Cook V. Brown V. Champlain Transportation Co. V. Stearns V. Tombs V. Wise . Cooke V. Clayton V, Clayworth V. Locksley Cooker v. Child . V. Eankin . Cooley V. Streetan Coon V. Brackett . V. Congdon . Cooper V. Adams . V. Pollard . V. Rankin . V. Smith . V. Wyatt . Cooth V. Jackson . Copeland v. Stephens 1^. Stevens V. Watts Corbet v. Poelnitz V. Seagrave Corbef s Case . . Cordwell v. Lucas Cornell v. Lamb . V. Moulton Coming v. Beach . V. Gould . Cornish v. Scarell . Corporation of New York son Cortleyon v. Van Brunt Cory V. Cory . . Costigan v. Hastier Cother v. Merrick Cotterill v. Griffiths Cottingham' v. King Cottrell V. Purchase CottriU V. Myrick . Cougham v. King . Cotmtess of Plymouth V. Daw- . 625 . 222 , 100 . 125 , 154 , 211 , 704 . 660 ... 222 . 263, 357 Throg- morton 887 Salop V. Crompton . 367 Coupland v. Hardingham .... 770 Courtail v. Thomas 515 Courtenay v. Ksher 774 Covell V. Bradley 22, 57 Cowan V. Silliman 308 Cowle V. Goodwin 381 Cowling V. Higginson 218 . 362 . 216 . 202 . 192 . 276 . 584 . 50 . 704 . 498 22, 891 . 179 . 666 87 178, 199, 445 237 32 391 100 642 628 650 137 39 288 758 . 586 . 252 . 227 . 409 . 32 . 15 . 456 . 515 . 107 . 153 . 88 . 90 870, 392 . 78 . 708 . 239 440 Cowpland v. Maynard 510 Cowthorpe v. Maplesden .... 696 Cox V. Bent 62, 563 V. Foley 656 V. McBurney 114 Crafts V. Plum . . .... 612 Cragg V. Holme ■ 100 Craig V. Dale . 541 Cram v. Dresser 165, 380 Crane v. Hardman 725 Crary v. Goodman 84 Crawley v. Thornton . ... 657 Cresson v. Stout 692 Cripps V. Blank 639 Crisp V. Churchill 644 Crocker v. Bragg 224 Croshie v. Tooke 337 Cropsy V. Murphy 201 Cross V. Bilson 754 Crouch V. Brilles 685 V. IngersoU 265 V, Puryear 346 Crowder v. Trincker 210 Crusoe dem. Blencome v. Bugby . 408 Cubitt V. Porter 188, 780 Culling V. Tatfnell 544 Curling v. Mills 39 Currier v. Barker ... . . 483 Curtis V. Hubbard 578 u. Jackson 240 V. Leavitt . 166 V. Miller 391 V. Mills .... . 195 V. Patten 95 V. Spitley 620 V. Treat 636 V. Wheeler . ... 109 V. White 260 Cunningham v. Goelet . . . . 721 Cuthbert v. Kuhn 370 Cutter V. PoweU 252 V. Winsor 475 Cutting V. Derby 526 Cutts V. United States 670 D. Dagleish v. Grandy 558 Daken v. Cole 492 Dakin v. WiUiams 265 Dalby v. Hirst 540 Dallman v. King 630 Dalston k.. Reeve 370 Dalton V. Jones 363 V. Whitten 592 Dan V. Spurrier 81 Dancer v. Hastings 570 Dane v. Kirkwall ..).... 97 Danforth v. Sargeant 525 Daniel v. North 180 V. Potter 198 Daniels v. Pond 62, 541 Daniels v. Richardson 883 Darby v. Calaghan 159 V. Harris 592 XX INDEX TO CASES CITED. Darlington v. VVpl I 496 Denby v. Moore .... . . . 396 Darrell v. Johnson 524 Dennison v. Lee . . . . . 391 Davey v. Asquith .350 Denny v. Parnell . . . . 615 V. Turner 104 Denton v. Richmond . . . . 673 Davies v. Connop 535 Depeyster v. Michael . 285, 404 V. Lee . . . . .694 De Reutsen v. Lewis . . . . 705 Davis V. Acklon . 515 Des Arts v. Leggett . . . . . 892 V. Alien . . 638 Descarlett v. Dennett . 496 V. Clancy 781 Despard v. Walbridge . . . 58,706 V. Edwards .... 618 Deuri v. Bossier .... 538 V. Elsam 291 Deverenx i'. Barlow . . . . . 620 V. Eytou 409 Dewey v. Osborn .... . . 710 r. Gyde . . . 638 Dewolf V. Harris . . . . 749 V, Hemenwa y . . . .25 Dexter v. Manley . . . . . 317 V. Jones . 551 Deyo V. Blakeley .... . 69, 391 V, Lyman ... .246 Dezell V. Odell . . . . . 92 V. Moreton 496 Dickey v. INfcCullough . , . . . 410 V. Payne ... .577 Dickinson v. Goodspeed . . 178 V. Powell 591 Digby V. Atkinson . . . . 19, 58 V. Shields .36 Diller v. Roberts .... . . 573 V. Shoemakf jr . . 624 Dimick v. Lockwood . . 822 V. The Mayi )r, &c. . 192 Dimond v. Enoch . . . . 707 V. Thompsoi 1 40 Dingman v. Kelly . . . . 160 V. Townsenc 1 . . .81, 251 Dixon V. Harrison . . . . 101 V. Tyde . 565 Doak V. Donnelsen . . 62 V. Tyler . 92 Dobell V. Hutchinson . . 35 V. Williams . . 170 Dockham v. Parker . . . . 174 Davison v. Stanley 612 Dodd V. Holme . . . . . 231 Davy V. Davy ■ . 657 V. Monger .... . . 577 Daws V. North Eiv er Ins. Co. . 128 Dodge V. Bowers .... . . 56 Dawson v. Dyer 276 V. Lambert . . . . . 418 V. Kittle . . 540 Dods V. Wilson . . . . . 98 V, Linton 342 Doe V. Abel 251 Day V. Brown . ... 245 V. Adams .... . . 703 V. Merry . . . 697 V. Alexander .... . . 298 V. Perkins 545 V. Arney .... 423 V. Watson 378 V. Baker . . 479 Dean & Chapter of Windsor's Case . 261 V. Banks .... . 288 Dean v. Allaley ... .545 V. Benjamin . . . 42 V. Hogg . 780 V. Bevan . ... . . 408 Deaver v. Rice . .558 V. Biggs . . . . . 467 Debow V. Colfax 535. V. Birch 415, 497 V. Titus . . 535 V. Bond . : 490 Decker v. Ereemai 1 120 V. Boulter .... 440 V. Livingst on . . . 768 V. Boulton .... . . 671 Deering v. Earring ton . . . 252 V. Bradt . . 60 Deforest v. Byrne ... 416 V. Brindley . . . 497 DeGex v. Jones 697 V. Brown . . 707 Delancy v. Ganong . . . 252,274,488 V. Brower . 84 Delavergne v. Nori is . ... 322 V. Cadwallader . . . . . 703 Demarest v. Willai d . . . . 261, 617 V. Calvert 485 Demedina v. Polso a 650 V. Carter . . 403 Demott V. Hagema n . . .749 V. Cartright .... 21 Den V. Adams . 471 V. Chapfin .... . . 479 V. Bennett 474 V. Cook . . 512 V. Cartright 152 V. Crisp . . 482 V. Drake . 471 V. Dyson . . 300 V. Fearnside 60 V. Edgar . ... . . 702 V. Freeland ' 129 V. Edwards .... . . 75 V. Hance . 272 V. Ekins . . 415 V. Kinney . 353 V. Poster . . 69 V. Mcintosh 55 V. Godwin . . 489 V. McShane 57 V. Groves . . 39 V. Post . . 291 V. Harlow . . 710 V. Rawlins 702 V. Harrison .... . . 403 d€m. Mackay V. Thackay . . 469 V. Hawkes .... . . 409 INDEX TO CASES CITED. XXI Doe V. Hodgson 135 V. Hogg 489 V. Jackson 702 V. Jones 533 V. Maisey 119 V. Marchetti 489 «. Masters 298 V. Meux 497 V. Miller 60 V. Murless 481 V. Murrell 537 V. PasquaU . . .... 653 u. Payne 411 V. Pegge 705 V. Phillips 290 V. Porter 475 V. Powell 408 V. Price 702 V. Pullen 21 V. Quigley 21 V. Pees 497 V. Pies 42 V. Rogers 60 V. Sayer 63 V. Smith 96 V. Smythe 19 V. Spiller 481 V. Stennett 702 V, Stevens 489 V. Street 702 V. Sturges 133 V. Summerset 479 V. Thompson 163 V. Tuchan 298 V. Walter 56 V. Watt 291 V. Weller 102, 703 V. Wharton 703 V. Williams 481 V. Wood 346 Doe dem. Ambler v. Woodbridge . 500 Bamford v. Hayley . . 262 Barber v. Lawrence . . 293 Barney v. Adams . . . 124 Bedford v. Kendrick . . 23 Bennett v. Long . . . 522 V. Turner ... 62 Bish V. Keeling .... 417 Boscawen v. Bliss . . . 412 Bradford v. Watkins . 69, 478 Braine v. Rawlins . . 23 Brinley v. Palmer . . . 486 Bristowe v. Pegge . . . 707 Burrell v. Davis . . . 362 Campbell v. Scott ... 478 Castleton v, Samuel . 56, 69 Chadburn v. Green . . 82 Cheese v. Creed ... 472 Cherry v. Batten . . . 485 Cheve v. Smith .... 457 Clarke v. Smarridge . . 82 Constance v. Thomas . 511 Coxeti. 482 Dagget V. Snowden . . 478 Dalton V. Jones .... 359 David V. Williams ... 622 Doe dem. Dean of Rochester v. Pierce 481 Digby V. Steel .... 486 Duke of Norfolk v. Hawke 409 Earl of Carlile v. Wood- man . . .... 481 Earl of DarUngton v. Bond 489 Elliott V. Hulme ... 479 Elhs V. Sandham ... 45 Eyre v. Lambly . . . 483 Elower v. Peek .... 400 Ereeland v. Burt ... 79 Ereemen v. Bateman . . 294 Foley V. Wilson ... 352 Foster v. Wandlass . . 297 Gaskell v. Spry .... 418 Goodbehere v. Bevan . 405 Graves u. Wells ... 522 Grifiaths V. Marsh ... 484 Grimes v. Gooch . . . 153 Grub V. Grub .... 472 Harris v. Masters . . . 493 Harrison v. Murell . . . 705 Heapy v. Howard . . . 479 Henniker v. Watt ... 412 Hidley v. Eickarby . . 411 Higginbotham v. Barton . 707 Holcomb V. Johnson . . 69 Holland v. Worsley . . 403 Hollingsworth v. Stennett 65 Hughes V. Bucknell . . 120 V. Jones . . . 435 Hull V. Wood .... 59 Jackson v. Ashburner . 40 James v. Brown . . . 436 JoUflfe V. Sybourne . . 479 Jones V. Cronch . . . 356 Jordan v. Ward ... 22, 58 Knight V. Quigley . . . 471 Lawrence v. Shawcross . 700 Learning v. Skinner . . 90 Lenesten v. Biggs ... 20 Lewis V. Beard .... 469 LUt V. Stratton .... 468 Lloyd V. Powell ... 413 LoekUn v. Cartright . . 77 Lockwood t. Clarke 409, 415 Lord Kensington v. Brindley 499 Manans v. Mizen . . . 480 Mann v. Walters . . . 479 Marlin v. Roe .... 428 Marsack v. Read . . . 481 Martin v. Watts . . 19, 60 Matthews v. Jackson . . 482 Matthews on v. Wright- man 481 Miller v. Asden .... 20 Milward v. ... 481 Mitchinson v. Carter . . 284 Morris v. Williams . . 481 Murrell v. Milward . . 613 Nash V. Bu-ch .... 498 NeviUe v. Dunbar . . . 484 xxu INDEX TO CASES CITED. Doe dem. Newby v. Jackson ... 57 Oldershaw v. Breach . . 292 Parker v. Boulton . . . 471 Parry v. Hazell . . . 478 Phillips V. Butler . . 476 Pitcher v. Donnovan . 477 Pitman v. Sutton . . . 361 Pitt V. Hogg 406 V. Laning . . . 405 V. Shewin .... 400 Potter V. Archer . . 112 Price V. Price ... 68 Raine v. Kneller ... 292 Read v. Ridout .... 467 Rhodes i'. Robinson . . 480 Rigge V. Bell .... 80 Rodd V. Archer . . 483 Schofield V. Alexander . 703 Scott V. Miller .... 498 Shepherd v. Allen ... 419 Sheppard v. Allen . . . 419 Shore v. Porter .... 434 Smelt V. Puchan ... 707 Spicer v. Lea .... 477 Stephens v. Douston . . 435 Strickland v. Spence . . 478 Taylor v. Johnson ... 63 Thompson v. Avney . . 343 Tucker v. Morse . . 113 Upton V. Watherwick . 536 Vernon v. Vernon . . . 616 Warner v. Brown . . 19 Walker ;;. Groves ... 41 WethereU v. Bird . . 359 Wheeldon v. Paul ... 298 Whitehead v. Pitman . 472 Whitfield v. Roe . . 302 Williams r. Humphreys . 485 Wilkinson 488 Wyatt V. Byron ... 109 Doidge V. Bowers 56 Dolph V. White . . . . 260, 441 Donaldson v. Smith .78 Donnell v. Thompson 682 Doolittle V. Eddy 14 Doremus v. Howard 24 Dormer v. Fortescue 660 Dormer's Case . 297 DorreU v. ColUns 158 Dorsey v. Gassaway 61 Dorwin v. Potter 331 Doty V. Gorham 213 Dougherty v. Bunting 201 Douglas V, Wiggins . . ... 348 DoweU V. Foster 236 Dowling V. Mill 338 Dowse V. Cole 357 V. Earle 366 Down V. Badger 179 Dowson V. Linton 395 Dox V. Day 276 Drag V. Brand 673 Drake v. Drake 653 V. Mundy 154 Dresden v. Cox 713 Driggs V. Dwight 37 Driver v. Lawrence ^07 Drohan v. Drohan . ... 133 Druall V. Fowler ■■••■• f^l Druce v. Deimison Ijjl Drury v. Molines . . .... 422 Dubois V. Beaver ■ \^\ V. Kelley 31, 550 Duell V. Rust 721 Dunbar v. Jumper 437 Dudley r. Dudley 545 V. Folliott 305 V. Sumner 146 V. Ward 613 Duffield v. Blwer 277 Duke V. Harper 522 Duke of Chandos v. Talbot ... 350 Leeds v. New Radnor . . 656 V. Powell .... 657 Norfolk V. Hawke ... 390 Northumberland v. Erring- ton .. " 246 St. Albans v. EUis ... 248 Dumpor's Case 286 Duncan v. Lyon 630 Dungey v. Angove . . ... 640 Dunham v. Jackson 393 V. Jumper 543 V. AVyckoff 748 Dunk V. Hunter 39, 42 Duppa V. Mayo 390 Durando v. Wyman . . ... 507 Durant v. Palmer 201 Durham R. Co. v. Walker .... 158 Duttou V. Gerish . 380 V. Tracy 792 Duval V. Craig 314 Dye V. Leatherdale 767 Dyer v. Dupui . .... . 209 Dyett V. Pendleton 316 Dygert v. Schenck . . . - . . . 207 Dyke v. Dyke 603 V. Sweeting 462 E. Eagle Fire Co. v. Lent 93 Earl of Cardigan v. Armdtage . . 158 Derby v. Taylor .... 109 Newbergh v. Bickerstaff . 660 Portmore v. Bun .... 382 Easterby v. Sampson . ... 252 Easton v. Worthington 762 Eaton V. Lyon 388 College V. Beauchamp . . . 657 Ecclestone v. Clispham 664 Eddy V. O'Hara 393 Edge V. Stafford 66 Edgerton v. Page 379 Edwards v. Clemons 562 V. Davis 105 V. Etherington .... 381 EfFord V. Burgess 680 Ege D. Ege 155 Eldred v. Hazlett 92 Elgar V. Watson ....'... 642 INDEX TO CASES CITED. XXlll Elliot V. Smith 354 Elliott V. Allen 768 V. Stone 483 V. Turner 76 EUiotson V. Eeetham 204 EUis V. Duncan 230 V. McCormick 329 V. Paige 63, 525 V. Taylor 767 V. Welch 305 Elmira, Trustees of, v. Dunn . . . 342 Elsee V. Smith 773 Elsey V. Metcalfe 167 Elwes V. Mawe 548 Emaus v. Tui-nbull 365 Emerson v. Murray 164 V. Wiley 217 Empson v. Soden 548 Engleton v. Gutteridge 578 Eno V. Del Vechio 190 Enys V. Donnithorne 70 Epps V. Cole 635 Erskine v. Townsend 121 Ervin v. Olmstead 778 Erving v. Bailey 78 Etheridge v. Osborne . . . 314, 388 Ethertou v. PoppleweU 772 Evans v. Brander . . . . 740 V. Elliot 120 V. Evans 200 V. Eees ... .... 161 V. Eoberts 536 V. Vaughan 807 Evelyn v. Eaddish 361 Bvertson v. Sawyer . . 80, 455 V. Sutton 719 Ewing V. Burnet 164 Exall V. Partridge 182 Executors of Van Rensselaer v. Ex- ecutors of Hunter 670 Ex parte Wilson 176 Fabyan v. Rewenston 154 Eailey v. Craig 383, 698 Eaihng v. Sehenck . . . . 152 Fairfax v. Hunter 143 Fairies v. Walker ... ... 546 Fairman v. Fluck 373 Fairtitle v. Gilbert 88 Farley v. Thompson .... 439, 447 Farmer dem. Earl v. Ryers . . . 609 FameU v. Rogers 78 Farrance v. Elkington 529 Farrand v. Marshall 233 Fairant v. Lowell 693 V. Olmins 673 u. Thompson .... 17, 552 'Farrer v. Hutchinson 628 Farriagton v. Bailey ..... 663, 598 V. Morgan 721 Fash V. Kavan 375 Faulderw. SUk 96 Faulkner v. Anderson 782 Faure v. Martin 49 Featherstonhaugh v. Bradshaw . . 635 Feltham v. Cartright 531 Fenner v. Duplock 707 V. Hepburn 39, 45 Fenton v. Halloway .... 100, 464 V. Logan 689 Fenwick v. Floyd's Lessees . . . 709 Ferguson v. Moore 574 Fern dem. Matthews v. Smart . . 488 Ferrers v. Ferrers 660 Field V. MitcheU 730 V. Scheffehn 136 Fifty Associates v. Howland . . . 438 V. Tudor .... 239 Fildes V. Hooker 48 FiUiter v. Phippard 196 Findlay v. Smith 353 First Baptist Church v. Schenec- tady & Troy R. R. Co 201 First Parish in Sutton v. Cole . . 126 Fish V. Dodge 176 Fisher v. Alger 731 V. Ameers 438 17. Bell 744 V. Fisher 335 Fisk V. Moores 19 Fitch V. Commissioners of Kirk- land 185 Fitchburgh Cot. Man. Co. v. Mel- vin 379, 677 Fitzherbert v. Shaw 633 Flaherty v. Andrews 523 Fleckner v. United States Bank . . 127 Fleet V. Dorland 318 V. Hegeman 223 Fletcher v. McFarlan 448 ■ V. Peck . .... 12 Flight V. Bentley . . ... 455 u. Thomas 204 Flmn V. CaUow 383 Flint V. Brandon 164 Flood V. Finlay 47 Fobes V. Shattuck 641 Foley V. Addenbrooke 550 FolMngham v. Croft 44 Folts V. Huntley .... 72, 304, 378 Foote V. Colvin . . . . 774 Ford V. Caleb 647 Forrester v. Wilson 728 Fortier v. Ballance 522 Forty V. Imber 756 Fosgate v. Herkimer Co 86 Fost V. Berkley .• . 151 Foster v. Cookson 770 W.Hale 32 V. Hall 32 V. Hilton 603 V. Mapes 318 V. Merchant 68, 136 V. Piersou . 314 V. Robinson 538 V, Shaw ■ 129 Fowke V. Kempis 704 Fowler v. Butt 372 V. Colvm 782 XXIV INDEX TO CASES CITED. Fowler u. Roe 721 V. Shearer 104 Fox V. Brissac 291 V. Swan 280 Foxcroft V. Linton 32 Francis v. Wyatt 575 Franciscus v. Reigart 580 Franklin v. Carter . ; . . . 707 V. Tuton 415 Frankum v. Falmouth 224 Frasher v. Everhart ... . . 166 Frear v. Hardenberg 30 Freeman v. Jury 642 V. Stacy 624 French v. Fuller 178 V. The Mayor, &c 424 Frisby v. Thayer 577 Frith V. Barker 540 Frontin v. SmaU 140 Frost V. Bering 35 Fry V. Jones 568 Fryer v. Coombs 442 Fryett v. Jeffreys 497 FuUer v. Hubbard . . . . 50 Fulton V. Stuart 16 Funk V. Voneida 320 Fumival v. Crew 332 G. GabeU v. Shevall 395 GaiEeld v. Hapgood 551 Gage V. Smith 352 Gale V. Nixon 661 V. Reed 255 Galloway, Matter of 461 V. Ogle 705 Gamon v. Vernon 616 Gano V. Hart 573 Gardener v. Gardener .... 137 Gardner v. Astor . 504 V. Dutch 749 V. Heartt 282 V. Humphreys 751 V. Ketteltas 305 V. Village of Newburgh . 224 Gardiner v. Corson 265 V. Deering 351 Garner v. Hannah .... 288, 398 Garfield v. Williams 322 Garret v. Hughlet 558 V. McKie 225 Garretft. Scouten .... 294, 491 V. Earl of Beesborough . . 47 Garrison v. Sandford 820 Garritt v. Sharp 240 Garth v. Cotton . . ■ 694 GarVey v. Colcock 127 Garwold v. Moorhouse 410 Gaskill V. Turner 493, 504 Gates V. Bayley 773 V. Blanco 209 V. Caldwell 258 V. Green 375 V. The Madison Ins. Co. . . 108 Gayette v. Bethune 216 Geechie v. Monk 23 Geening v. Warner 325 Geery v. Reason 247 Gentry v. Barnett 744 Geisler v. Acosta 723 Gerard v. Basse 117 Gibbs V. Chase 62 V. Jenkins 340 V. Ross 442 Gibson v. Crehore 504 V. Courthorpe 642 V. Farley 124 V. Kirk 636 V. Perry 375 V. Smith 691 V. Wells 689 Gifford V. Young 462, 668 Gilbert v. Bulkley 263 V. Mickle Mayor, &c. . . . 201 V. Moody 583 V. N. A. Ins. Co 168 Gilbertson v. Richards 155 Giles V. Comstock .... 310, 379 V. Dugro 809 V. Hooper 247. V. O'Toole 37 Gilhooley v. Washington .... 816 Gillett V. Marquaud 187 V. Newman 251 GiU V. Gavin 575 Gillespie v. Thomas .... 885, 519 Gillott V. Rogers 640 Gilman v. Elton 587 Gimbert v. Pelah 771 Girardy v. Richardson 521 Giraud's Lessee v. Hughes . . . 704 Gisburn v. Hunt 588 Given v. Bland 586 Glassington v. RawUns 78 Glaus V. Hart .... ... 573 Gleason v. Carey 208 V. Clark 653 Gleiu V. Rice 629 Glover v. Wilson 636 Goddard v. Keate 659 V. R. R. Co 475 Gomber v. Hackett ... . . 497 Good V. Hill 157 Goodman v. Ayling 755 V. Jones 22 Goodright v. Cator 298 V. Davis 286 dem. Charter v. Cord- went 485 dem. Nichols v. Mark . . 164 V. Richardson ... 70, 77 Waters v. Davids . . . 488 GoodseU V. Myers 93 GoodtiUe v. Morse 91 u. North 710 V. Way 37 dem King v. Woodward . 479 Goodwin v. Lynn . 276 Gordon v. Buchanan 188 V. George 436 INDEX TO CASES CITED. XXV Gordon u. Harper 780 V. Hayward 104 V. Smart 337 V. Trevelyan 46 • Gore V. Gofton 144 Gorges v. Stanfield 350 Goring v. Warner ' 408 Gorton v. Falkner 596 Gott V. Gandy 328 Gould V. Hudson E. R. Co. . . . 222 V. Johnson 658 V. Thompson 645 V. Warner 743 Gourdier v. Cormack 233 Gourlay v. Duke of Somerset . . 337 Gove V. Buzzard 137 V. Gibson 100 Grace v. Shiveley 576, 612 Graham v. Anderson .... 378, 473 V. Alsopp 341 V. Dunigan 318 V. Moore 705 V. Peat 781 V. Whitchelo 516 Gram v, Seaton 117 Granger v. Brown 483 Grannis v. Clark 252 Grant v. Chase 217, 257 i>. Gill 641 V. Johnson 265 V. Kamsey 32 Gravenor v. Woodhouse .... 440 Graves v. Berdan 520 W.Porter 384,437 V. Weld 534 Gray v. Blanchard 277 V. Nesbet 791 Greason v. Kettletas 131 Green v. Austin 604 V. Cole 348 V. Bales 368 V. Horn 245 V. James 88 V. Putnam 169 V. Scovill . 635 Greenley v. KeUogg 307 V. Wilcocks . . . 305, 666 Greenslade v. Halliday 209 Greenvault v. Davis 308 Greenway v. Adams 403 Gregory v. Badcock 641 V. Doidge 440 w. Paul 107 Grey v. Cuthbertson 262 Gridlestone v. McGowan .... 700 Grier v. Cowan 561 Griffin v. Fairbrother 445 V. Stanhope .... 220, 280 ^ Griffith V. Broome 668 V. Harrison 319 V. Hodges 516 Griffith's Case 59 Griffiths V. Puleston 543 Grimman v. Legge 509 Grist V. Hodges 311 Griswold v. Miller 97 Groton v. Eoxbury 474 Grout V. Townsend 85 Gulliver v. Burr 476 Gutteridge v. Munyard 358 Gwynne v. Mainston 76 H. Hackett v. Connett 680 V. Glover 253 V. Richards 386 Hafflick V. Stowber 551 Haggard v. Raymond 600 Haines v. Backus 793 V. Morris 259 Hale V. Thomas 694 Hall «. Ball 538 V. Ballentine 525 V. Benner 86 V. Burgess 515 u. Butler 705 V. Dean 320 V. Powler 456 V. Hills 168 V. Powell 163 V. Southmayd 686 V. Swift ......... 203 V. Tuttle 749 V. Wadsworth 470 Hallen v. Runder 552 Hallenbeck v. Dewitt 98 V. Garner 721 Hallett V. Mountstephen .... 745 V. Wylie 38, 41 Halligan v. Wade 878 Halsey v. Reed 245 Hambly v. Trott 689 Hamerton v. Stead 19, 57 Hamilton v. Atherton . . . . 457 V. Cutts 809 U.Elliott 280 u. Marsden 705 V. Reedy 598 V. Wilson 666 Hammerton v. Stead 57 Hammitt v. Lawrence 468 Hammond v. Dodd 307 !;. Puller 224 V. Toulmin 682 Hampton v. Hodges 694 Hanchet v. Whitney 475 Hancock v. Caflfyn 738 Hands v. Slaney 96 Hanford v. McNair 137 Hannah v. Dansby 785 Hanover v. Clark 251 Hanson v. Gardiner 695 Harbeck v. Sylvester 441 Harder v. Harder 345, 689 Harding v. Crathorne . , . . . 514 V. Kretsenger 276 Hardy v. Berne 673 Hare v. Cator 620 V. Celey 644 ». Pury 711 XXVI INDEX TO CASES CITED. Hare v. Graves . . . . .... 372 V. SaTill . . . . . . 681 Hargons v. Lakens . . .... 393 Harker v. Birbeck . . .... 16 Harlan v. Lehigh Co. .... 381 Harley v. King . . . 437, 453 Harlow v. Thomas . . . . 320 Harmon v. Oshorn . . . . 115 Harnett v. Yielding . . . . 333 Harnhain v. Ross . . . . . 270 Harper v. Burgh . . . ... 252 V. Charlesworth .... 781 V. Fisher . . . .... 441 V. Hampton . . . . 139 Harris v. Boker . . . . . 689 V. Bryant . . . .... 339 V. Gosling . . . .357 V. Jones . . . . . 358 V. Kemble . . . ... 47 V. Mantle . . .... 674 V. Riding . . . .... 236 V. Shipway . . . . 565 V. Smith . . . . . 749 V. Thompson . . . . 201 V. Wall . . . . . . 94 Harrison v. Barnsby . . . . 568 V. Barry . . . .573 V. Jackson . .... 137 V. Lord . . . .... 372 V. Mcintosh . 739 V. Newton . .... 208 V. Parker . 432 V. Sampson . .669 V. Stevens . . .703 V. WardeU . . 742 narrower v. Heath . . .... 24 Hart V. Chalker . . . .216 u. Fitzgerald . . . . 749 V. Hart . . . . . . . 332, 334 V. The Mayor, &o., of Albany 192 V. Tobias . . . .... 763 V. Windsor . . . • . . 380 V. Withers . . ... 117 Hartley v. Halliwell . .... 196 V. Moxham . .... 778 Hartness v. Mcintosh .... 424 0. Thompson . . . 95,653 Hartshome v. Kiernan .... 558 V. Watson .499 Harvey v. Dunlop .197 V. Pocock . . . . 614,735 Hasbrook v. Paddock .... 489 Haskett v. Flint . . .258 Haslehurst v. Kenrick .... 412 Hassell v. Gothwaite . .... 294 V. Long . . .... 251 Hastings v. Crunkleton .... 353 V. McKinley . . . 428 V. Winslow . 458 Hatch V. D wight . . 224 V. Hatch . . . . . . .168 Hatchett v. Baddeley 105 V. Glover . 252 Hathaway v. Power . 164 Hatter v. Ast . . . 78 Hawk V. Senseman . 698 Hawkins v. Holmes 35 Hawks V. Orton 378 Hawley v. Clowes 179, 694 V. Cramer 658 V. Stanley 343 ■ V. Wolverton 360 Hay V. Cohoes Co 202 V. Cumberland 163 V. Moorhouse 785 Hay's Executor v. Bowman . . . 280 Hayden v. Stoughton 276 Haydon v. Haydon 435 V. Wescott. 149 Hays V. Bickerstaff 308 V. Lusley 745 V. Richardson 237 Hayne v. Maltby 629 Hayward v. Haswell 756 V. Hayward 101 Hazard v. Robinson 228 Heap V. Barton 551 Hearnside v. Warren 19 Hedge v. Drew 168 Heeney v. Heeney 229 HeflFord v. Alger 594 Hegan v. Johnson .... . . 562 Heimstreet v. Howland 178 Helier v. Casbert 640 Heming v. Emuss 784 Henchett v. Kimpson 598 Henwood v. Cheeseman .... 650 Hepburn v. Hoag 630 Herlakenden's Case 778 Hermance v. Vemoy . . . 174, 545 Hermitage v. Tompkins .... 88 Hern v. Benbow ....... 344 Herrick v. Stover 184 Herring v. Sanger ... . . 392 Hervey^s Case . . • .... 519 Hess V. Fox 427 Hewitt V. Watkins 184 Heywood v. Miller 24 Hicks V. Downing .' 16, 109 Higgins V. Becroft 475 V. Woodward 696 Higginbotham v. Lowenbein . . . 724 HiU V. Barclay 47, 496 V. Carr 246 V. Dobie 458 V. Goodchild 768 ■V. Miller 164 V. Saunders 90 V. Stocking 663, 721 Hildreth v. Conant 65 Hillary v. Gay 524 Hilman v. Hale 88 Hilton V. Goodhind 23 Himley v. Wyatt 587 Hinckley v. Emerson 195 Hind V. Grey 417 Htndle v. Blades 740 V. PoUett 420 Hinsdale v. White 726 Hinton v. Blaiu 566 V. Locke 539 Hirst V. Horn 526 INDEX TO CASES CITED. XXTll Hobson V. Middleton 320 Hockenbury v. Snyder 705 Hodges V. Horsfall 46 V. Shields 629 V. Smith 627 Hodgson V. Gascoine 600 Hodgton V. East India Company . 306 Hogan V. Johnson 97 V. Sharp 195 Holbrook v. Tirrell 511 II. Waters 4l6 Holden v. Taylor 246 Holder v. Chambury .•...-. 656 Holford V. Bennett 253 V. Hatch 109, 371 HoUaday v. Marsh .... 184, 187 HolUday v. MarshaU .... 335, 427 Holland v. Eouldin 281 HoUis V. Pool 65 HoUis V. "Whiting 32 Holmes v. Blogg ...'.... 94 V. Buckley 242 V. Goring 162 V. Holmes 393 V. Mentz 435 V. Tremper 545 V. Wilson 766 Holsman v. Abrams 22, 533 Holt V. Johnson 582 Holtzsapffell v. Baker 375 Hooker v. Cummings 221 Hopkins v. Buck 788 V. De Robeck 596 w. Hopkins 739 w.Molineaux 137 V. Young 276 Hopper, matter of . 594 Hore II. Kennett 458 Hombeck v. Westbrook .... 155 Hornby v. Houlditch . . . . 438 V. Cramer 393 Horner v. Ashford 144 V. Graves 417 Hornidge v. Wilson .... 442, 451 Horsley v. Rush 137 HorsfaU v. Mather 343 V. Testar 362 Horsford v. Webster 590 Hoskins v. Knight ...... 600 V. Rhodes 24 Hotham v. East India Company . . 276 House V. Burr 333, 411 Houser v. Reynolds 94 Howard v. Doolittle .... 328, 381 W.Ellis 176,418 V. Howard 86 V. Ramsay 583 V. Robinson 224 fc. See 207 V. Shaw 637 Howe V. How 664 V. Webster 626 Howell V. Ashmore 707 V. McCoy 224 V. Richards 305 V. Ripley ....... 123 Howes V. Brushfield 306 Howland v. Coffin 441 V. Vincent 195 Howlet V. Strickland 630 Hoyle V. Stow 95 Hoyt V. Dillon 86 Hubbard v. Norton 320 Huddle V. Worthington 250 Huddy V. Fisher 255 Hudson V. Jones 93, 176 Huggerford v. Eord 763 Hughes V. Chatham 24 V. Heiser 206 V. Hughes . .... 590 V. Young 395 V. Robotham 507 Hull u. Fuller 164 Humbert v. Trinity Church ... 86 Humble v. Ohver 75, 617 Hungerford v. Clay 118 Hunt V. Amidon ... ... 261 V. Bains 760 V. Colson 24 V. Comstock 14 V. Cope 378, 757 V. Round 745 V. Warwick 143 Hunter v. Leoonte 392 V. Hunter 169 V. Osterhout 497 Hurd V. Curtis 242 V. Fletcher 306 Hurst V. Rodney 451 Hustons II. Winans 251 Huteheson v. McNutt 287 Hutchins v. Chambers . . . . 730 Hutchinson v. Potter 475 Hutton V. Warren 420 Hyde v. Dean 669 u. Hill 397 V. Palmer 493, 713 V. Price 106 V. Skinner 262 V. Stone 101 Hyatt V. Burr 728 V. Wood 779 Hurlbut w. Post 177 Huttemeier v. Albro 212 I. Ibbs V. Richardson 524 Iddings V. Nagle 538 Iggulden V. May 248 niott V. Wilkes 194 Ilsley V. Stubbs 739 IngersoU v. Jackson 320 Ingraham v. Baldwin .... 97, 705 V. Hammond 758 Inman v. Stamp 30 Innes v. Colquhon 756 Inzey v. Mauray 758 Irving V. Crocket 95 Isaac V. Clark 705 Isham V. Morgan 162 XXVIU INDEX TO CASES CITED. Isham V. Morrice 84 Israel v. Simmons 651 Istred V. Stonely 470 lyes V. Ives . . 530 V. Van Epps 374 Izau V. Gorton 372 J. Jacks V. Smith 561 Jackson v. Aldricli .... .55 V. Allen 213, 277 ; V. Andrew 450 .'' V. Andrews 350 V. Anderson 167 V. Ayres 88 V. Baker 481 V. Benton 86 V. Bodle 167 V. Bradt 54, 60 V. Brinkerhoflf 90 V. Brownell 24 V. Brownson .... 345, 411 V. Bryan 54 V. Buel 784 v.BuR 87 V. Burchin 94 V. Cady 170 V. Campbell 128 V. Carpenter 94 V. Catlin 169 V. Cator 693 V. Clark 164 V. Clun 143 V. Collins 113 V. Combs 711 V. CorUs 408 V. Corey 126 V. Crafts 289 V. Cryster 298 V. Cunder 707 V. Curtis 705 V. Daris 19, 108 V. Delancy 442 V. Deyo 468 V. Dobbin 706 V. Eddy 380 V. Elston 86 V. Elsworth 523 V. Farmer 530 V. French 467 u. Frost 86 V. Foster 149 V. Fuller 120 V. Gardner 512 V. Gilchrist 104 V. Groat 404 V. Hakes 716 V. Harper 442, 522 V. Harrison . . . 108, 176, 279 V. Harsen 705 V. HartweU 120 V. Hayner 98 V. Hill 167 V. Himnan 629 Jackson v. Hofiman . V. Holdeu . . V. HoUoway . V. Hopkins . V. Hull . . V. Keisselbrach V. King . . V. Kingsley . V. Kipp . . V. Loomis V. Louro . . V. Mancius . V. Marsh ." . V. McCleUan V. McConnell V. McLeod V. Miller . V. Moncrief V. Murray V. Myers . V. Newton V. Page V. Parkhurst V. Pesked V. Phillips i;. Phipps . V. Pierce . V. Post V. Pratt . V. Randall o. Richards V. Roberts V. Robinson / V. Rogers . V. Roland . V. Rowan . V. Rowland V. Salmon u. Sample - - V. Sehoonmaker V. Schutz . V. Seldon . V. SelUck . V. Silvernail V. Sisson . . V. Smithson V. Stackhouse V. Stacy V. Stafford V. Sternbergh V. Stewart V. Stiles . V. Streeter V. Tibbetts V. Titus . V. Todd . V. Topping . . V. Vanderheyden V. Van Rensselaer V. Vincent V. Vosburgh V. Wallyer V. Walsh . V. Warford ti. Waters V. Wheeler INDEX TO CASES CITED. XXIX Jactson V. "Whitford 707 V. Wiley 469 V. Winslow 170 V. Wyckoflf 300 Jackson dem. Bowen v. Burton . . 472 Bulkley v. Delacroix . 39 Church V. Brownson . 407 CUuch V. Miller . . 60 Golden v. Brownell . 407 Coltou V. Harper . . 471 De Ridder v. Kogera . 758 Griswold v. Bard . . 68 Harris v.- FuUer . . 472 Lewis V. Sclratz . . 284 Litt V. Strattou ... 95 Livingston v. Groat . 407 V. Kip . . 79 V. Selover 698 Loux V. Buel ... 698 Merrick v. Post . . 170 Saxton V. May ... 698 Van Kensselaer v. Col- Una 641 Van Rensselaer v. Hoga- boom 299 Weldon v. Harrison . 703 "Wood V. Salmon . . 468 Jacob V. King 750 Jacobs V. Graham 78 Jaffery v. Bastard 742 James v. Dean 434 V. Emery 264 V. Fowks .... .653 V. Landon 89, 92 V. Pope 465 V. Stiles 149 V. Stuyyesant 728 V. Vanderheyden .... 169 Jaques v. Short 437 V. Withby 267 Jebbu. Jebb 697 Jefferson v. The Bishop of Durham 686 Jenkins v. Bodlen .... . . 164 V. Eldridge 38 V. Hopkins . .... 318 V. Morton 664 u. PeU 420 Jenner v. Clegg 665 «. Morgan 387 V. YoUand 597 Jennings v. Alexander 448 V. Bragge . . ... 85 Ex parte 67 V. Throgmorton .... 521 Jenrdson v. Blowers 457 Jervons v. Harridge ..... . 382 Jerwitt V. Ware 307 Jesse V. Gifford ....... 180 Jetter v. Mann 214 Jeune v. Ward 95 Jewell V. Schroeppel 650 Jewett V. Jewett 240 V. Miller 92 Jones V. Berkley 264 V. Chamberlin 63 V. Green 675 Jones V. Jones 44 V. Logwood 166 V. Morey 502 V. Morris 341 V. Muldrow 630 V. Patterson 101 V. Percival 213 V. PoweU 203 V. Reynolds 638 V. Roberts 497 V. Shears 524 V. Thorne 418 dem. Griffith v. Marsh ... 64 John V. Jenkins 38 Johns V. Whitley 289, 292 Johnson v. Bains 760 . V. Carr 680 V. Hannahan 523 V. Hereford Churchwardens 363 V. Hinman 705 V. Hudson R. R. Co. . . 198 V. Moore 97 V. Proctor 248 V. Wallygr 640 V. Wygant 265 Johnstone v. Huddlestone .... 486 Jordan v. Twells 378 V. Wikes 102 Jordin v. Crump . . .... 194 Joule V. Jackson 689 Jourdain v, Wilson 262 Journey v. Brackley 456 Juddw. Ensign 893 Jungerman v. Bovee 507 K. Kane v. Folger . . 665 V. Sanger . . .... 441 V. Vanderbergh . . . . 690 Keay v. Goodwin 64 Keech v. Hall 120 Keeling v. Moore 357 Keite v. Boyd 739 Keith V. Swan 118 Kellenberger v. Eoresman , 328, 378 Kellogg V. IngersoU 320 V. Rand 167 V. Robinson 262 KeUy V. Clubbe 619 V. Dutch Church 310 V. Weston 533 Kelsey v. Barney 199 . V. Ward 373 Kemp V. DarreU 478 V. Derrell 68 Kendall v. Garland 176 Kendricks v. Judah . . ... 456 Kenny v. May 609 Kenrick v. Smith . . ... 493 Kent V. Webb 252 Kerly v. Hume 749 Kerr v. Shaw 310 V. Sharp 607, 613 Kesler v. McConachy 379 ,* XXX INDEX TO CASES CITED. Ketsey's Case . Keteltas v, Coleman Kidd V. Dennison Kidder v. West Kimball v. Keyes Kimersley v. Orp Kimpton v. Eve King V. Anderson u. Argand V. Fowler V. Fraser . V. Jones . V. Mansfield V. Kussel . V. Wileomb King's Chapel v. Pelliam Kingdou v. Nottle . . . Kingman v. Sparrow Kingsbm'y v. Collins . . Kingsland v. Barnwell . IQnkham v. Sharp Kinlyside v. Thornton . Kinney v. Watts . . . Kinsley v. Ames . . : Kirby v. Boylston Market Kirkland v. Poinsett . . Kirkman v. Jarvis . . Kirwan v. Latour . . Kissecher v. Moun . . Khne v. Beebe . . . V. Catora .... Klingsby's Case . . . Knevitt v. Pool Knickerbocker v. Killmore Knight V. Bennett . . V. Crockford . . Knightley v. Bulkley Knipe v. Palmer . . . KnoUe's Case . . . Knowles v. Richardson . Knuckle v. Wynwick Kortz V. Carpenter . . liray v. Goodwin . . . Kramer v. Cook . . . Kutter V. Smith . . . Ladd V. Thomas . . Lade v. Shephard . . Lady Montague's Case St. John V. Pigott La Farge v. Mansfield Frombois v. Jackson Lajoy V. Primau . Lamb v. Bunco V. Lathrop . Lametti v. Anderson Lamoreux v. Crosby Lamott V. Stewart Lane v, Crockett . V. King . . V. McKean . Langdon v. Potter . Langendyck v. Burhaus 628 401 345, 353 315 105 259 154 82 535 650 324 192 192 546 293 262 163 534 142 216 547 257, 304 64 331 650 646 550 765 95 270 115 534 247 19 35 54 136 154 203 436 308 114 317 783 159 547 381 86 92 246 392 335 97 375 604 537 104 787 711 Lansing v. Montgomery .... 92 V. Prendergast . . ■ 457, 682 V. Eattone 581 V. Smith 207 V. Van Alstyne ... 31, 378 Laquerenne v. Dougherty .... 57 Lasala v. Holbrook 233 Lasell V. Reed 541 Latham v. Atwood 536 Lathrop v. Marsh . .... 696 Laughter v. Pointer 178 Launitz v. Dixon 728 Law V. Hempstead 83 Lawrence v. Buckmau 668 V. Brown 442 V. French .... 378, 562 V. Heister 105 V. Kemp .... 424, 545 V. Knight 317 V. Obee 240 V. Taylor 137 Lawrenson v. Butler 36 Lawton v. Lawton 544 V. Rivers 243 v. Sager .... . . 169 Lawyer v. Smith 196 Lay V. King 223 Laycock v. Tufihell 757 Laythrop v. Bryant 36 Layton v. Pearce 251 Leach v. Thomas 343 Leader v. Soxon 178 Lean v. Shute .... . . 105 Lear v. Caldicott 733 Lecatt V. Stewart 705 Lee V. Adkins 166 V. Norris 34 V. Risdon . 546 Lee's Case . 503 Leeds v. Amherst 697 V. Cheetham 329 V. Compton ... . 410 Lees V. Nutall 138 Legg V. Legg 101 V. Robinson 422 Legh V. Hewett 344 Leicester v. Rehoboth 87 Leigh V. Heath 774 V. Hurd 419 V. Shaw 158 0. Westervelt 201 Leighton v. Theod 62 Leland v. Tansey ... ... 710 V. Sprague 423 Lent V. Norris . 246 Lesley v. Randolph 56 Leslie v. Pounds . . .... 175 Lessee of Brown v. Galloway . . . 712 Galway v. Doyle . . . 705 Rugge V. Ellis .... 698 Lester v. Garland 78 Level V. Witliington 313 Levern v. Gierke 248 Levy V. Godson 603 Lewees v. Ridge .... . . 666 Lewis V. Campbell 146 INDEX TO CASES CITED. XXXI Lewis V. Jones 541 V. Lee 106 V. Little 790 V. Lyman 641 V. Payne 165 V. Pead 98 V. Pousford 781 V. Eingo 522 V. Wallace 664 V. Weldon 276 V. WiiUs 705 Leyman v. Abeel 220 Lifford's Case 354 Liggins V. Inge 240 Lincoln Bank v. Drmnmond . . . 288 Linden v. Hepburn .... 426, 497 Lindley v. Dakin 539 Line v. Sterenson 254, 304 Lisher v. Pierson 754 Lister v. Brown 612 Lithgow V. Cavanagh 104 Little V. Lathrop 174 V. Martin 19 V. Palister ....... 173 V. Pearson 640 Livatt V. Wilson 227 Livingston v. Adams 225 V. Conner 700 V. Haywood 688 V. Liyiugston . . 345, 656 V. Miller 392 V. Peru Iron Co. ... 86 V. Potts 506 V. Reynolds 345 V. Sticles ...'... 246 V. Tanner 25 V. Tenbroeck .... 219 V. Tompkins .... 489 Lloyd V. Eisbee 525 V. Crispe 406 V. Gregory 512 u. Peel 711 V. Tompkins 307 Loades v. Kemp 331 Lockier v. Patterson 732 Lockley v. Lockley 660 Lockwood V. Barnes 29 Lofsky V. Maujer 392, 565 Logan V. Anderson 512 V. Heron 468 London v. Greyme 348 Water Works v. Bailey . . 127 Long Island K. E. Co. v. Mar- quand 128,391 Loomis V. Wilbur 352 Lord Chesterfield v. Bolton ... 364 Courtown v. Ward .... 346 Cromwell's Case 277 Grey' de Wilton v. Saxton . . 691 Ormond v. Anderson .... 46 Eich V. Franks 620 Southampton v. Brown . . . 258 St. John V. Lady St. John . . 106 Vaux's Case 75 V. Vreeland 340 Loring v. Bacon 179 Lott V. Thomas 320 Lougee v. Cotton 577 Lougher v. Williams 660 Lovat V. Lord Ranelagh .... 495 Love V. Dennis 705 V. Howard 398 Lovett V. Steam Sawmill .... 129 Loward v. Palmer 440 Lowe V. Griffiths 96 V. Peers 267 LoweU M. H. v. Hilton 246 V. Spalding 178 Lower v. Winters 29 Lowther v. Kelly 258 Lubbock V. Tribe 342 Lucas V. Cummerford 365 Lucke Vf. Lucke 258 Lucky V. Eousee . . . . ' . . . 661 V. Prantzkee 379 Lucy V. Livingston 312 Ludford v. Barber 113 Ludlow V. McCrea 247 u. E. E. Co 493 LudweU V. Newman .... 304, 813 Luke V. Smith 527 Lunsford v. Turner 707 Lunt V. Brown 785 «. Hunter 222 Lush V. Druse 164, 392 Luxmore v. Eobson 361 Lybray v. White ........ 770 Lyddal v. Duulap 459 Lyde v. Eussell 551 Lyme v. Moody 771 Lynch In re 100 Lynde v. Hough ... ... 403 Lyon V. Eeed 150 y. Weldon 609 Lysle V. Williams 78 M. Macher v. The Foundling Hospital . 419 Mackay v. Bloodgood 166 V. Mackreath 459 Mackworth v. Thomas 673 Macomber v. Parker 540 Macon v. Crump 670 Mahan v. Brown 203 Maidstone v. Stevens 700 Main v. Feathers 371 Main's Case 360 Mallory's Case 156 MaUott V. Brayne 646 Malpas V. Ackland 130 Malverer v. Spinke 352 Manby v. Scott 101 Manchester v. Hough 104 Manice v. Milieu 498 Mlann v. Lovejoy 56 Manning v. Smith 162 Mansell v. Burredge 264 Manser's Case 326 Mantz V. Goring 358 March v. Freeman 661 xxxu INDEX TO CASES CITED. Marir v. Simple 711 Mark v. Noyes 358 Markle v. Hatfield 394 Marley v. Rogers 707 Marquat ;;. La Parge 178 V. Marquat 101 Marquart v. La Farge 25 Marquissee v. Ormston 771 Marriott v.. Edwards 709 V. Stanley 770 Marrow v. Turpin 627 Marsh v. Brace 626 V. Curteys 497 Marshall ;;. Broadhurst 460 V. Craig 270 V. Davis 739 V. Dupey 712 V. Gibbs 561 V. Mosely 387 V. Rutton 105 Marston v. Hobbs 666 Martin v. AngeU 92 V. Baker 262 V. Black 459, 577 V. Delaware Ins. Co. . . . 540 V. Dwelley 104 V. Goblet 240 V. Lucas 791 V. Martin 311 V. Ray 754 u. Sterling 83 V. WaddeU 222 u. Yeager 791 Marvin v. Stone 164 Marwood v. Waters 23 Mascal's Case ... l ... . 665 Mason v. Corder 405 V. HaU 224 t). HiU 224 Masssengill v. Boyle 163 Massey v. Goyner 231 Massie v. Long 114 Master v. Baldwin 67 Master, &c. v. Dewalden .... 420 Masters v. Miller 165 Masury v. Southworth . . . 260, 400 Mather v. Trinity Chuich .... 749 Mathias v. Mesnard 590 Matter of Dyett 185 NichoU . . ... 135 Matthews v. Fiestel 183 u. Sawell 509 V. Stone 595 V. TerwiUeger .... 49 Matthewson v. Lydiate 270 Matts V. Hawkins 188 Mauld V. Wilson 196 Maverick v. Austin 216 V. Gibbs 52 V. Lewis 24 Mavis V. Sparks 790 Maxwell v. Ward 339 May V. Burdett 195 V. Colden . 135 u. Fry 255 Maynard v. Maynard 167 Maynard's Lessee v. Cable .... 471 Mayo V. Fletcher 124 ,;. Shattuck 121,682 V. Wintree 558 Mayor of Congleton v. Pattison . . 260 Carlisle v. Blamer . . . 190 London v. Hedger . . . 691 Lyme v. Henley .... 775 Lynn 126 Newport v. Sanders . . . 638 New York v. Cushman . 898 w. Lord ... 181 MeCall V. Lenox 121 McCampbell v. Miller 682 McCarty i). Ely 653 V. Hudson 761 V. Noble 149 V. Orphan Asylum . . . 126 McCauley v. Weller 786 McClogan v. Huston 420 McColgan v. Huston 745 McComb V. Wright 137 McCormeU v. Brown 167 McCormick v. ConneU 298 McCoy V. Hyde 721 McCracken v. Hall 552 McCracken's Heirs v. McCracken's Executors . 353 McCrea v. Puvmort 251 McCready v. Brisbane 441 McDaniel v. Hughes 653 McDill V. McDiU 141 McDonald v. Lindall 214 MoEldery v. Flanagan 384 McFarlau v. Watson .... 108, 636 McFarlay v. Baker * 754 MoGaunten v. Wilbur 42 McGee v. Gibson 174 McGeehan v. McLaughlin .... 679 McGill V. Hinsdale 571 McGruder v. Peter 135 McGregor v. Brown . . . 345, 353, 697 McKane v. Wood 195 McKenzie v. Lexington 517 V. Farrell .... 508, 518 McKeon v. Whitney . . . 379, 452, 618 McEnley v. Reader 609 McKinney v. Rhoads 168 McKirdeu v. Hawley 571 McLachlan v. McLachlan .... 281 McLarney v. Pettigrew 189 McLaren v. Spalding 378 McLaughlin t>. Long 686 McWharter v. McMahan .... 137 Mead v. Gillett 630 Meader v. Stone 524 Mechanic Bank v. Capron . . ; . 457 Mechanics, &c. v. Edwards . . . 504 Mechelau v. Wallace 66 Meeker v. Van Rensselaer .... 208 Menough's Appeal .... . . 391 Meriam v. Harsen ...'... 108 Merick v. Lewis 26 Merrill v. Emery 288 V. Frame 254 Merritt v. Briokerhoff 204 INDEX TO CASES CITED. SXXIU Merritt v. Claaon 35 V. Parker 224 V. Judd 545, 552 Messenger v. Armstrong .... 486 Messing v. Kemble 771 Mickie v. Executors of "Wood . . 42, 62 Mickle V. Mills 17 Middlebrook v. Corwin 541 Middlebury College v. Cheney . . 324 Middlemore v. Goodale 261 Midgeley v. Lovelace 568 Miles V. St. Mary's Church . . . 441 Millard v. Robinson 599 Miller v. Baker 546 V. Bonsaden 705 V. Bristol 214 V. Garlock 217 V. Heller 67 V. Johnson 140 V. McBrien 705 V. Maynewaring 101 V. Parsons 326 u. Pelletier 35 V. Piatt 86 V. The Auburn & Syracuse E. E. Co 311, 338 ex parte 465 Mills V. Baer's Executors .... 376 V. Barber 117 V. Hall 210 V. Hallock 540 r. Peed 519 Milne v. Branch 449 Milner v. Horton 255 V. McClean 787 Milwood V. Coffin 179 Miner v. Clark 311 Minot V. Curtis 126 Minshall v. Lloyd 553 Minturn v. Burr 790 Mitford V. Eenwick 86 Mitchell V. Eeynolds 417 V. Walker 243 V. Warner 320 Moale V. Tyson 436 Mockley v. Eiggs 282 Moers v. Wait 354 Moffat V. Smith 331, 639 Mohawk Br. Co. v. Utica & S. E. E. Co 208 Molans v. Arden 566 MoUet V. Brain 615 V. Brayne 482 Molineux v. Powell 694 MoUoy V. Irwin 153 Molton V. Camroux 97 Monk V. Cooper 150, 372 Montague v. Smith 664 Moody V. Buck 179 V. Garrison 67 V. Leavitt 681 Mooers v. Choat 365 Moore v. Beamont 768 V. Beaseley 32 V. Blake 49 u. Bowmaker 742 Moore v. Cable 187 V. Dame Brown 211 V. Eoley 140 V. Goedell 179 V. Hussey 70 V. Massie 790 V. McKay . , 153 0. Pyrke '.183 V. Eawson 239 V. White 350 Morehead v. Watkyns 468 Morgan v. Bissell 42 V. Griffith 150 V. PoweU 42 Morgell V. Paul 25, 639 Morley v. Pencombe 586 Morough V. O'Dea 153 Morris v, Dewitt 746 V. Edington 315 V. Miles 22 V. Morris 697 V. Sliter 265 V. Wadsworth . . . 148 Morrison v. Chadwick 866 Morse v. Copeland 238 Mortimer v. Bruner 379 V. Orchard 33 V. Preedy 618 Morton v. Naylor 428 Mosely v. Marshall 318 V. Virgin 357, 685 Moshier v. Eeding 26 Moss V. Gallimore 112 Mossy V. Mead 58 Mott V. Calmer 161, 305 V. Hicks 127 Moulton V. Norton 38 Moyle V. Moyle 346, 547 Mumford v. Brown .... 115, 326 V. Whitney 31 Municipality No. 2 v. Currell . . . 398 Murray v. De Eottenham .... 456 V. Governeur 392 V. Shave 514 Mussey v. Scott 524 Muston V. Gladwin 401 Murphy v. Lucas 790 Muspratt v. Gregory 589 Myers v. Gemmel 239 V. Malcomb 201 V. White 571 N. Naish V. Tatlock 636 Nash V. Ashton 306 V. Turner 89 Nation v. Foxer 643 Najjjor V. Arnitt 131 V. CoUinge 549 Neal V. Clautire 593 V. Swind 641 Neale v. Lower 74, 91 V. Mackenzie 379 XXXIV INDEX TO CASES CITED. Neale v. Wyllie 174 Neave v. Moss 89 Nellis V. Lathrop 383, 629 Nelson v. Carrington 495 Newall V. Wright 124 Newbiggin v. PUlans 107 Newconib v. Agan 24 V. Harvey 617 New Haven St. & Tr. Co. v. Van- derbilt 199 Newkirk v. Newkirk 284 Newman v. Anterton 760 V. Holdmyfast 699 V. Eutter 410 Newton v. Allen 679 V. Harland 524 V. Osborn ... . . 462 V. Wilson 18, 62 New York Ins. for the Blind v. How's Ex'rs 126 Niblet V. Smith 785 Niblo V. Post's Adms 723 NichoU V. Gardner 575 Nicholls V. Byrne 378 Nichols V. Dusenbury . . 374, 388, 565 V. Nichols 751 V. Williams 56 Nicholson v. Halsey 511 Nickerson v. Brackett 222 Niles V. Sawtell 667 Nind V. Marshall 251 Noble V. Bates . 417 V. King 306 Noe V. Gibson 594 Noke V. Awder 261 Noke's Case 307 Norman v. Foster 312 V. WeUs 260, 444 Norris v. Baker 203 V. Harrison ... . . 390 V. Ins. Co 676 North V. Earl Stafford 656 Northrup v. Northrup 276 Norton v. Heron ' 140 V. Sheldon 298 V. Vultee 437 V. Wiswall 178 Noyes v. Anderson 317 O. Oakapple dem. Green v. Copons . . 478 Oakley v. Schoonmaker ... 24, 713 Gates V. Frithe 155 Obermyer v. Nichols 391 O'Brien v. Grison 154 O'Conner v. Spaight 495 Odell V. Buck 98 u. Wake 428 O'Donnell v. Seybert ^83 Oetinger v. Levy 331 OTallon v. Daggett 215 Offatt V. Trail 566 Ogden V. Howe 514 OgUvie V. HuU 378 Ognel's Case 619 O'Herliby v. Hedges 337 O'Keefe v. Kennedy 412 Gland v. Burdwick 535 Gland's Case 535 Olcott V. Frazer 598 Oldershaw v. Holt 415 Oliver v. Houdlet 95 O'Mahoney v. Dixon 495 Ombony v. Jones 545 Onslow V. Corrie 370 Ontario Bank v. Lightbody . . 394 Opperman v. Smith .... . 576 Orgill V. Kempstead 680 Orleans, The, Ins. Co. v. Laffercan- derie 14 Orne v. Broughton 459 O'Rourke v. Percival .... 48 Osborn v. Etheridge 330 Osgood V. Dewey 636 Osmond v. Fitzroy 98 Ostrander v. Livingston .... 335 a Oswald V. Gilfert ....... 398 Otis V. Sill 149 Overbagh v. Petrie 404 Overdeer v. Lewis 526 Owen V. Aprice 660 V. Connor 558 V. Davis 32, 97 V. Hudson R. B. Co. ... 199 V. Hyde 353 Owings V. Emery 346 Oxley V. Cowperthwaite .... 740 V. James 16, 110 V. Watts 613 P. Packer v. Gibbins 645 Paddleford v. Paddleford .... 350 Paelon v. McBride 588 V. Church 756 V. Earner 744 V. Pain 310 Palmer v. Edwards .... 109, 560 V. Fort Plain & C. Co. . . 246 V. Mulligan 204 V. Stebbins 417 V. Wetmore 389 V. Whettenhal 659 Pamer v. Stabick 734 Pangburn v. Partridge 739 Panton v. Holland 231 V. James 22 Paradine v, Jane 364 Paramore v. Johnson 652 Paramour v. Yardley 134 Paiker v. Foote 239 V. Gravenor 249 V. Parmele 265 V. Smitli 211 V. Staniland 773 V. Starkweather 587 V. The Cutler M. Co. . . . 222 Parkins v. Coxe 353 INDEX TO CASES CITED. XXXV Parks u. City of Boston 519 Parmele v. Oswego R. E. Co. . . 272 Parmenter v. Webber 109 Parnaby v. Lancaster 197 Parry v. Duncan 576 V. House 705 Parsons w. Chamberlin 77 V. MiUer 276 Partenheimer v. Van Orden . . . 186 Partington v. Woodcock .... 119 Patrick v. Ball's 80 Patridge v. BeU 121 V. GUbert 189 V. Scott 234 V. Townley 320 Patterson v. Adams 739 V. Brewster 114 V. Boston 619 Pattison v. Adams 749 V. Hull 44 Paul V. Nurse 411 Parey v. Burch . 251 Payn v. Beal 440 Payne v. Haine 358 V. Rogers 175 V. Vandever 539 Peabody v. Fenton 428 Peacock v. Purvis 604 Pearce v. Cheslyn 39 V. Golden 835 V. Perris's Ex'r 702 V. Humphrey 740 Pearsall v. Post 215 Pease v. Simpson 739 Peck V. Gurney 610 V. Hiler 379, 723 V. Ingersoll 390, 653 Peckham v. Leary 440 V. Henderson 207 Peering v. Brooke 38 Pell V. Brown 291 Pember v. Mather 120 V. Mathews 448 Pemberton v. King 546 V. Van Rensselaer 391, 574 Pemble v. Clifford 743 Pendleton v. Dyett 378 Pendred v. Griffith 337 Penhym v. Hughes 318 Penley v. Watts 110, 368 Penn v. Develin 698 V. Glover 312 V. Preston 246 Pennant's Case 492 Pennell v. Woodbum 368 Penniman v. Hartshorn 36 V. N. Y. Balance Co. . . 208 Pennington v. Morse 64 Pennsylvania v. Robinson .... 786 V. Waddle .... 789 Penrudock's Case 210 Penry v. Brown 548 Penton v. Robart 545 People u. Alberty 345 V. Davison 353 u. Godfrey 792 People V. Haskins 870 V. Hickox 793 V. Leonard 791 V. Manning 281 u. Nelson 819 0. N. Y. Common Pleas . . 761 V, Niagara Common Pleas . 762 V. Reed 790 V. Eickert 79 V. Robertson 78, 426 V. Runkle 788 V. Seymour 229 V. Shaw 790 V. The Canal Appraisers . . 229 V. The Mayor, &c. ' . . . . 85 V. Tibbitts 221 V. Utica Ins. Co 126 V. Van Nostrand .... 789 Pepper v. Haight 265 Perkins ;;. Coxe 353 V. Lyman 673 Perley v. Chandler .... . 218 Permial v. Harborne 401 Perreau v. Bevan 729 Perrett v. Dupre' .... 328, 330, 381 Perrine v. Cheeseman 166 Perrott v. Perrott 694 Perry v. Aiken 149 V. Bowen 138 V. Brown 361 V. Price 166 Pet V. Addy 395 Peter v. KendaU .... 150, 515, 516 Peters v. Barnes ... .... 509 V. Newkirk 565 Petrie v. Bury 259 V. Daniel 543 Peyton v.. Mayor of London . . . 188 u. St. Thomas's Hospital . . 231 Phelps V. Chesson 492 V. Decker 266 V. Sawyer 310 Phenix v. The Comrs. of Emigration 173 Phillips V. Bacon 604 V. Berryman 731 V. Covert 63 V. Doelittle 495 V. Green 93 V. Hartley 40 V. Mosely 23 V. Pearce 629 V. Price 744 V. Stevens 364 Philpot V. Hoare 408 Phyffe V. WardeU 336 Pickard v. Coffins 175, 206 Pierce v. Dart 208 V. Fuller 417 V. Minturn 264 0. Musson 232 V. Pierce 636 ■ V. Van Dyke 762 Pierse v. Shaw Ill Pierson v. Ries 39 Piggott V. Brittles 597 V. Mason 262, 383 XXXYl INDEX TO CASES CITED. Pigott's Case 165 Pike V. Butler 335 V. Evans 57 V. Eyre 90 Pilkington v. Peach 143 V. Shaler 365 Pilkington's Case 566 Pilling V. Armitage 335 Pillow V. Love 545 Ex parte 715 Pindar v. Ainsley 373 V. Rutter 329 Pinero v. Judson 41 Pitcher v. Tovey 371 Pitt V. RusseU 624 w. Shew 610 V. Smith 100 V. Snowdon 570 Pittman v. Lutton 496 Pizy V, Rogers 328 Pleasant v. Benson Ill Pledall V. Knapp 609 Pluck V. Digges 16 Plumb V. Cattaraugus Ins. Co. . . 92 Plummer v. Harper 206 Plymouth v. Carver 437 Pollard V. Schaeflfer 364 Pomfret v. Rycroft 214 Pontalba v. Domingan 378 Poole V. Bentley 41 Poole's Case 545 Poor V. Peebles 576 Pope V. Biggs 119 V. TiUman 751 Pordage v. Cole 246 Porris v. Allen 510 Port V. Jackson 436 Porter v, Bleilar 56 u. Noyes 320 V. Shfepherd 83 V. Spencer 657 V. Stewart 269 Post V. Kearney , 262 V. Kimherley 658 V. Vetter 328, 359 Poston V. Jones 377 Pott V, Lesher 636 Potter V. Bacon 674 V. Hall 558 V. Taylor 320 V. Williams 136 Poultney v. Warren 712 PoweU V. Clarke 163 V. Dillon 35 V. King 494 Powers V. Russell 168 V. Ware 276 Powis V. Smith 114 Powley V. Walker 252 Pratt V. Brett 422 Preece v. Corrie 560 Prentice v. Achorn 100 V. ElUott 649 Presoott V. Deforest 563 u. Freeman 322 Preston v. Kehoe 790 Preston v. Briggs 551 Price V. Heyler JJ^ V. Limehouse 563 V. Williams 37 V. Worwood 497 Prichard v. Atkinson 239 Prindle v. Anderson .... 485, 721 Printems v. Helford 565 Prior V. Pickett 537 Pritchard v. Ovey 332 Proctor V. Harris 198 V. Keith 493 Profert v. Parker 44 Proprietors, &c. v. McFarland . . 60 Proud V. Holhs 174 Prouty V. Prouty 475, 720 Provost V. Calder 437 Pugh V. Duke of Leeds 78 Pugsley V. Aikin 459, 472 PuUen V. Brady 282 . V. Palmer 568 Pultard V. Hilder 471 Purfel V. Sands 576 Purple V. Purple 742 Purrington v. Loring 613 Putnam v. Payne 195 V. Putnam 114 V. Richie 135 V. Wise 24, 114 V. WyUe 780 Pym V. Blackburn 357 Pyu V. Dor 355 Pyke V. Thomas 417 Pyott V. Lady St. John 358 Pynchon v. Stearns 353 Quackenboss v. Clark 448 V. Lansing .... 164 Quarman v. Bennett 178 Queen's College, Oxford, v. Hallett 173 Quincy v. HaU 758 R. Raikes v. Townsend 208 Raine v. Alderson 15 Ralph V. Gist 166 Randall v. Alburtls 379 V. Rich 515 V. Rigby 619 V. Russell 262 Ray V. Ayres 173 Eandela. Ches.&Del. Canal Co. 245, 674 Rank v. Rank 641 Rathbun v. Payne 199 V. Rathbtm 168 Rawlins v. Turner 29 0. Van Dyke 106 Rawson v. Eicke 639 Rawstorne v. Bentley 339 Raymond v. Bearnard 391 INDEX TO CASES CITED. XSXVll Raymond v. WMte 545 Eayner v. Stone 421 Eaynor v. Wilson 511 Rea V. Burt 587 Eeab v. McAlister 373 Read v. Burley 587 V. Farr 402 dem. Errington 488 Reading v. Menliam 639 Rector of Chedington's Case ... 76 Redfield v. Utiea R. R. Co. . . 19, 686 Redpath v. Roberts 473 Eedshaw v. Bedford Level .... 338 Reed v. Darrow 577 V. Deare 170 V. Hoyt 770 V. Latson 503 V. Parsons 493 Rees V. Emerick 772 V. King 298 V. Lawless 787 V. Lord Dacre 332 V. Overbaugh 165 Reeves v. McKenzie 558 Regina v. Bucknell 178 V. Leigh 347 Rempant v. Bembridge 648 Remsen v. Conklin 493 Rennicker v. Smith 100 Rennie v. Robinson 654 Rensselaer v, Sar. R. E. Co., matter of 185 Renwick v. Morris 201 V. Renwick 336 Respublica v. Caldwell 192 V. Sparhawk .... 181 V. Thryber 179 Reve V. Bird 515 Rex V. Bath 790 V. Carlisle 193 V. Com'rs of Paghan Level . . 197 V. Cotton ........ 598 V. Cross 192 V. Harrow 237 V. Jones 193 V. Lewis 740 U.Lloyd 794 V. Nichols 794 V. Oatley 546 V. Rosewell 208 V. Smith 523 V. Smythe 787 V. Stacey 92 V. St. Dunstan'a 546 V. St. Luke's 179 V. Taylor 201 V. Tippett 230 V. Topping 220 V. Wilson 786 Reynard v. Porter 60 Reynolds v. Com'rs of Stark Co. . 126 V. Buckle 627 V. Pitt 496 I,. Roe 480 V. Shuler 545 V. Swain .... 178, 577 d Reynolds v. Thorp 755 Rhoades v. Bullard 315 Rich V. Basterfield 176 V. Frank 626 V. Hotchkiss 92 Richards v. Killam 663 Richardson v. Evans 410 V. Gifford 359 V. Hall 640 V. Laugrade .... 60 V. McDougal .... 186 V. Scott 439 V. Sydenham .... 333 Richart v. Scott 233 Richmond v. Thompson .... 705 Rickert v. Snyder 678 Rickett V. TuUick 67 Eicketts v. Lostetter 317 V. Solway 220 Riddle v. Weldou 583 Rider v. Smith 178 Ridge V, Wilson 558 Right V. Bawden 22 u. Beard 63 V. CutheU 479 V. Darby 55, 475 V. Proctor 26 V. Rawden 23 dem. Bassett v. Thomas . . 169 Flower v. Barley ... 22 Rigney v. Coles 180 Ripley v. Wightman 372 Rising V. Stannard 62, 525 Roach V. Cosine 719 Road t). Sm 653 Eobbins v. Kitchin 629 Roberts v. Barker 420 V. Davis 492 V. Fennell 635 V. Jackson 168 V. Wiggin 95 Robertson v. St. John 388 Robie V. Smith 83 Robinson v. Hoffman 568 V. Kettletas 385 V. Litton 694 ,;. Mead 750 V. Wheeler 686 Rockwell V. Bradley 474 Roe V. Davis 706 V. Galliers 280 V. Harrison 286 V. Hodgson 133 V. Lowe 118 V. Pogson 818 V. Prideaux 83 V. Sales 403 V. Wiggs 481 dem. Berkley v. Archbishop of York 150 Goatley v, Payne . . . 362 Gregson v. Harrison . . 110 Rogers v. Ake 566 ii. Arnold 739 V. Birkmere 574 V. Humphreys 119 SXXVlll INDES TO CASES CITED. i V. James 222 V. Lynde 721 V. Ostrom 379 V. Pitcher 707 V. Stewart 206 Roles V. Eosewell 673 Rolfe V. Harris 496 Kollin V. Picket 70 Rolls V. Rock 774 Rood V. K. Y. & E. R. R. Co. . . 161 Roof t). Stafford 93 Root V. Puff 163 V. Stuyvesant 112 Roper V. Bumford 630 V. Lloyd 388 V. "Williams 413 Rosenbaum v. Gunter 382 Ross V. Bedell 166 w. GiU 135 V. Overton 357 V. Sadgbeer 417 RoswiU's Case 694 Rotch V. Miles 105 Rothony v. "Wood 604 Roulstone v. Clarke .... 192, 755 Roumage v. Blatvier 182 Rowan v. Lyttle 55, 65, 487 V. "VVoodward 264 Rowel V. "Walley 318 Rowland v. Rowland 785 Roxbury "West, Town of .... 220 Royston v. Cordrye 626 Rubery v. Stevens 451 Ruberry v. Jervois 251 Rubicun v. "Williams 726 Ruckham v. Astor 446 Ruifey v. Henderson ... . . 551 Ruggles V. Lawson 169 Rumball v. Murray 435 RunneUs v. Bullen 225 Rushden's Case 384 Russell V. Doty 573 V. Gulwell 246 V. Jackson 214 V. Men of Devon .... 182 V. Popham 201 V. Scott 164 V. Sheaton 178 Rust V. Low 184 Rutgers v. Hunter 322 Ryal V. Rich 528 Ryan v. Rochester & Sy. R. R. Co. 187 Ryers v. Farwell 706 Ryerson v. Quackenbush .... 447 S. Sacheverell v. Proggatt 156 Sackett v. Barnum 600 Sackrider v. Beers 204 V. McDonald 613 Saffyn's Case 15 Sage V. Sherman 114 Salisbury v. Hale 58 V. Marshall 381 Salmon v. Bradshaw ^15 V. Smith 310 Salter v. Burt 78 V. Codbolt 626 SaltonstaU v. "White 716 Saltpetre Case 181 Sampson v. Easterby 249 V. Henry 524 Samways v. Eldsley 250 Sandford v. Harvey 477 Sapsford V. Pletcher 182 Sarch v. Blackburn 195 Sarles v. Sarles 220, 690 Satterlee v. Matthewson .... 707 Saunders v. Pope 495 V. Van Sickle 571 Saunders's Case 157 Saimderson v. Harrison 385 V. Jackson ... .85 Savage v. Dent 715 V. Dupuis .... . . 476 Saville v. SaviUe 318 Sawyer v. Fitts 704 Scarlet v. Lamarque 787 Schermerhorn v. Buel 173 Schieffelin v. Carpenter 513 Schlencker v. Moxby 738 Schmidt v. Livingston 49 Schuyler v. Hoyle 432 V. Leggett 79, 564 Scott V. Depeyster 198 V. Goodwin 664 V. Hall 684 V. Hawsham 654 V. Miller 19 V. Tyler 277 V. "Waithman 742 V. "Wilson 221 Scovel V. Cabel 281 Scranton v. Booth 152 Scudder v. ]Jaulding 375 Seabourne v. Powell 324 Sea Ins. Co. v. Stebbins .... 123 Seaman v. Browning 309 V. Hogeboom 164 Seaver v. Dingley 739 V. Phelps 97 Seddon v. Senate 251 Sedwick v. HoUenback 312 Seitzinger v. "Weaver 320 Selby V. Browne 378 Seldon v. Pringle 265 Sells V. Hoare 731 Semayn's Case 578 Senior v. Armitage 538 Serres v. Dodd 749 Servante v. James 116 Seton V. Slade 80 Seward v. Jackson 704 Sexton V. Fleet 107 Seymour v. Billings 758 V. McDonald . . . 206, 418 ShadweU v. Hutchinson .... 173 Shall V. Banks 328 Shannon v. Bradstreet 84 V. Em-r 174, 523 INDEX TO CASES CITED. SXX12 Sharp V. Spier 341 Sharpe v. Kelley 472, 705 Shattuck V. Lovejoy - 403 Shaw V. Clements 163 V. Hurd 269 Shee V. Hall 489 Sheen v. Richie 544 Shelby v. Hearne 262 Sheldon v. Skinner ...... 392 Shepard v. Spalding ...... 651 Shepherd v. Boyce 760 V. MerriU 518 Sheriff u. James 731 Sherman v. Irvine's Lessee . . . 698 Sherred v. Sisco 188 Sherry v. Frecking 85 V. Preston 565 Sherwood v. Burr 227 V. Phillips 581 V. Seamana 228 Shieffehn v. Carpenter . . . 361, 512 Shippey v. Derrison .... .35 Shopland v. Eider 135 Short V. Wilson 688 Shotwell V. Boehm 711 Matter of 789 V. Smith 123 Shubrick v, Salmond 255 Shult w. Barker 355 Shumway v. CoUins 379 Shuter's Case 98 Sickles V. Frost 631 SiU V. Road 653 Sills V. Brown 199 Silly «.DaUy 755 Silver v. Kenrick 410 Simons v. Farron 418 V. Norton 351 Simonton's Estate 169 Simpkin v. Ashurst 65 Simpson v. Ammons .... . 121 u. Butcher 112 V. Clayton 443 V. Eastei-ly 437 V. Gutteridge 133 V. Hartopp 587 V. Ehinelander .... 721 V. TitweU 277 V. TittweU 220 Sims V. Humphrey 720 Sinclair v. Jackson 87 Singleton v. Bremar 73 w. Finley 792 Sir T. Stripling's Case 367 Six Carpenters' Case 566 Skaife v. Jackson 628 Skeme's Case 445 Skinner v. Dayton 117 Slack V. Brown ....... 633 V. Slack 457 SUngerland v. Morse . . . 892, 750 Slingsby's Case ' . 264 Slocum V. ClaJk 441, 568 V. Despard 265 Smiles v. Hastings 239 Smiiey v. Van Winkle 16 Smith V. Adams 227 V. Benson 548 V. Bowin 94 V. Burtis 84 I/. BlaisdeU 291 V. Colson 561 V. Crockett 739 U.Day 73,567 V. Emery 664 V. Farst 641 V. Floyd 218 V. Fyler 579 V. Goodwin 738 V. Gowan 165 V. Henry 139 V. Howell 368 V. Jersey 494 V. Kerr 259 V. Lockwood 208 V. Low 93 V. MalUngs 385 V. Mapleback 510 V. Marable 381 V. Meander 732 V. Meanor 563 «. MiUer 780 V. Moffat 727 V. M'Alhster 163 V. Niver 512 V. Norfolk 626 0. Peat 368 V. Pocklington 668 V. Putnam 408, 423 u. Eawleigh 388 V. Eussell 205, 770 V. Shepherd .... 124, 391 V. Simonds 459 V. Smith 393 V. Smeltzer 49 V. Stewart 471, 663 V. Strong 164 V. The Saratoga Ins. Co. . . 492 V. Tyler 561 V. Walton 756 V. Whitbeck 493 V. Wilhamson 749 V. Wright 540 Smithwiok v. Ellison ..... 541 Snelling v. Stagg 366 Snook V. Sutton 135 Snyder t). Hill 583 V, Knuckleman 565 V. Vaux 748 Somerville v. Stevenson .... 662 Soprain v. Skurro 266 Sorsbie v. Park 264 Soulsby V. Nevins 528 Southcote V. Hoare 264 Southgafe v. Chaplin 312 Soward v. Leggett 359 V. Pahuer 392 Sparhawk v. Broome 456 Sparks v. Smith 365 Sparrow v. Bristol 435 V. Hawkes 244 Spencer v. Burton 70 xl INDES TO CASES CITED. Spencer v. Field 139 V. McGowan 582 V. Parry 341 Speckels v. Sax 356 Spencer's Case . . . .18, 252, 437, 444 Sperry v. Miller 518 Spicer v. Slade 185 Spragg V. Hammond 396 Sprague v. Baker 263 V. Duel 98 Springstein v. Schermerhorn . . . 508 Sproker v. Cook 720 Squire v. Whitten 149 Stabler v. Cowan . . .... 141 Stackhouse v. Halsey 77 Staokpole v. Healy . . ... 186 Stafford v. Ingersoll 184 V. London 206 Stains v. Morris 448 Stainsforth v. Fox 39 Stammers v. Dixon 207 Standon v. Cliristmas 343 Stanley v. Twogood 358 Stannard v. Eldridge 320 StanseU v. ToUard 233 Staples V. Hayden 213 V. Spring 206 Starr v. Effis ......... 504 V. Jackson 173 State V. Armfleld 578 V. Johnson 787 V. Page 24, 37 V. Purse 201 V. Thaokaw 578 of Connecticut v. Bradish . . 170 Georgia v. Worcester . . 8 New Hampshire v. Pearson 790 Stearns v. Godfrey 272 Stedman v. Page 568 Steel V. Mast 69 V. Wright 875 Stetson V. Faxon 208 Stevens v. Beekman 695 V. Keeves 540 V. Simmons 407 Stevenson v. Lambard 263 V. Powell 319 V. Silvernail 408 Stevenson's Case 248 Steward v. Harding 477 V. Winters 416 Stewart v. Doughty 535 u. Drake 320 V. Hall 138 V. Hawley 196 V. Roderick 705 Stewkley v. Butler 501 Stiekleham v. Hatchman .... 349 Stiles V. Cowper 113 0. Hooker 204 StiUwell V. Doughty .... 318, 387 St. John V. Palmer .... 308, 380 Stookett V. Watkins 642 Stockwell V. Marks 551 Stokes V. Cooper 379 V. Eussell 446 Stone V. Dennis 269 V. Gilliman 248 :.v. Moore ^^ ' U.Patterson 447 u. Proctor 541 V. Sprague 398 V. The Mayor, &c 181 V. Wliiting 514 V. Wood 140 Stoppani v. Eichard ... . . 452 Storer v. Freeman 163 V. Gordon 258 Storey v. Robinson 596 Storm V. Mann 696 Story V. Bliss 540 V. Oden 233 Stoughton V. Baker 222 Stout V. Kean 447 Stratton v. Lord 714 Street v. Tugwell 204 Strickland v. Maxwell 164 Stricler v. Todd 224 Strohecker v. Grant .... 420, 664 Strong V. Stebbins . . . ■ . . . 611 Strowd V. Willis 627 Stuart V. Fulton 640 Stubbs V. Parsons 395, 757 Stultz V. Dickey 538 Stuyvesant v. Davis . . . 272, 492, 497 V. Dunham 781 V. Tompkins .... 781 Style V. Hearing 89 Suffemu. Townsend 782 Sullivan v. Cary 790 V. Bnders 60 V. Jones 641 Sumner v. Conant 104 V. Williams 253 Sunderland v. Newton 696 Surphce v. Fams worth 646 Surry v. Brown 156 Sutherland v. Lishman 259 Sutton V. Clarke 196 V. Cole 250 V. Waite 742 Suydam v. Jones 260 Swain v. Holman 105 V. Perrine 318 V. Wisner 67 Swan V. Earl of Falmouth .... 731 V. Shumwell 763 V. Transham 140 V. Wilson 707 Swart V. Service 86 Swearingen v. Magruder .... 567 Sweet V. Pym 577 Sweetser v. Eames 848 Swift V. Mosely 17 V. Thompson 545 Switzer v. Hummel 326 Syburn v. Warrington 164 Symms v. Smith 674 Symonds v. Cudmore .".... 504 V. Seaboume 178 Symons v. Symons 112 INDEX TO CASES CITED. Xli T. Taffe V. Warwick 5-15 Talavande v. Cripps 558 Talbot I'. Ford 268 Tall V. Nixoa 666 Talman v. Coffin .... 273, 334, 699 Tarr v. Jones 636 Tart V. Crawford 170 Tatem v. Chaplin 262 Taunton v. Costar 531 Taylor v. Baldwin .... 179, 533 V. Beal 630 V. Buckner 6a8 ■^..BuUeu 281 V. Cole 485, 775 V. Debar 324 V. Gleuny 107 V. Hampton 23,9 V. Henniker 735 V. Lanyon 602 V. Mason 274 V. Needham 705 V. Owen 437 V. Salmon 138 V. Sandford 673 V. Shum 370 V. Townsend 545 V. Whitehead 184 V. Zamira 341 Tempest v. Rawling 39 Temple v. Logwood 84 Templeman v. Biddle 538 V. Smith 749 Tenny v. Childs 42 Terboss v. WiUiams 572 Test V. Deveus 793 Thatcher v. Omans 104 Thayer v. Littlejohn 524 V. Wendall 669 The Commonwealth v. Charleston . 221 V. Newberry . 216 V. Passmore . 192 Eagle Fire Co. v. Lent ... 94 Farmers Bank v. Mutual Ins. Co. 449 Loan, &c. o. Kursch . 180 King V. Pedley 175 V. Eussell 193 Master, &c. v. Dewalden . . 251 Mayor of Carhsle v. Blamier . 669 V. Cortis . . 175 &c. V. Bailey .... 232 V. Lowton .... 126 V. Mabie . . 257, 304 V. MoUer .... 631 V. Price . . 388, 631 of New York v. Furze 201 V. Lord 181 of Oxford V. Eichardson 222 Southampton v. Ward 773 People V. Anthony 794 V. Canal Appraisers . . 229 V, Coles 723 V. Cunningham & Harris 194 V. GiUis 40 The People v. Fulton 789 V. Kelsey .... 41, 720 V. Nelson 794 V. Piatt 221 V. Eickert 794 V. Rumple 794 V. Runkle 149 V. Sands 201 V. Sergeant 203 V. Simpson 721 V. Smith 793 V. Swayze 720 V. The Assessors, &c. . 126 V. Van Nostrand . . . 790 Seneca E. E. Co. u. The Auburn E. E. Co 764 State V. McClay 176 Thier v. Barton 294 Thomas v. Brackney 224 u. Cadwallader 683 V. Cook 514 V. Godfrey 704 V. Pembertou 456 V. Pyke 668 V. Thomas 217 V. Todd 394 V. Van Kapff 400 V. Wright 469 Thompson v. Button 739 V. Gibson 784 V. Gregory 237 V. Hewitt 456 V. Leach 147 V. Machiter 587 V. Eose .... 263, 437 V. The Mayor &c. . . . 85 V. Wliite 251 V. Wilson 515 Thorndike v. AUington 659 Thome v. Benton 118 Thornton v. Adams 577 V. Payne 41 Thresher v. East London Waterworks 357 Throgmorton v. Whelpdale . . . 521 Thrusby v. Plant 438 Thunder v. Belcher 474 Thurston v. Hancock ..... 230 Thurston's Case 84 Tibbitts V. Percy 328, 371 Tice V. Norton .760 Tileston v. Newell 265 TiUotson V. Boyd 449 Timmins v. Eowlinson 482 Tinckler v. Prentice 392 Tinkerville v. Stamp 196 Tio V. Vance 378 Tobey v. Barber 392 V. Webster 173 Todd V. Collins 196 V. Jackson 524 Toder v. Easeley 790 Tomlin u. Fuller 216 Tomlinson v. Day 386 Tompkins v. Elhott 264 Tonawauda E. E. Co. v. Munger 198, 765 Tone V. Brace 306 d* xlii INDEX TO CASES CITED. Tongue v. Pitcher 620 Torriano v. Young 343 Torrey v. Kernan 25 V. Torrey 466 Townsend v. Corning 140 u. Davis 705 V. Hubbard . . . 138, 166 V. Inglis . . ... 137 V. McDonald . . 224, 237 V. Morris 669 V. Orcutt 139 Tracy v. Albany Exch. Co. . . . 332 V. Hereford 318 V. Talbot 67 V. Tracy 694 in the matter of . ... 100 Trappan v. Morie . .' 577 Treat v. Stuart 790 Trede v. Toote 449 Tremere v. Morrison 460 Treport's Case 91 TreTirian v. Lawrence ... .91 Tritton v. Foote 333. Trotter v. Hughes ... . 245 Trousdale v. Darnell . . ... 475 Trower v. Chadwick 231 Trull V. Granger 176 Trumbull v. Trout 137 Trustees v. Spencer . . ... 663 V. Waiiams 705 &c. V. Rowlands .... 368 of Elmira v. Dunn ... 14 Watertown v. Cowen . 262 Western Uniyersity v. Eobinson 218 Tryon v. Mooney 14 Tucker v. Newman 780 Tufts V. Adams 320 Turbeville v. Ryan 107 Turnbull v. Rivers 216 Turner v. Beebee 24 V. Hardy 653 V. Lamb 868 V. McCarty 331 V. Meyraott 530 V. Sturges 102 V. Turner 742 Tuttle V. Jackson 170 V. Reynolds 472 V. Tompkins .... 373, 630 Twort V. Twort 694 Twyford v. Buntley 270 Twynam v. Packard 296 U. Udall V. Udall Underwood v. Burrows . . Union Bank v. Emerson . . . United States v. Nelson . . . Bank v. Bank of Georgia V. Brown . University of Vermont v. Joslyn Updike V. Campbell 777 67 545 149 394 250 166 621 Upton V. Ferguson 254 V. Wetherwick 520 V. Vaiden v. Bell .... 739 Vallentine v. Jackson 561 Valliant v, Dodemede . 449 Van V Corn 45 Van Allen v. Rogers . 710 Van Alstyne v. Spraker 704 v. Van Slyck 269 Van Bergen v. Van Bergen 204 224 Van Brunt v. Schenck . . 613 Van Buren v. Olmsted . 124 Van Cortland v. Underbill 335 Vandenburgh v. Bergen 225 Vanderkan v. Vanderkau 252 Vanderpool v. Allen . . 544 V. Hugson . 192 Van Doren v. Everitt . 1,35 Vane v. Lord Barnard . 35ft V. Minshall . . . 105 Van Epps v. Dilaye . . 638 V. Harrison . 374 V. The Mayor 44 Gorden v. Jackson . 161 Heuson v. Radcliff . ,371 Horn V. Grain . . 26, 1,3 ,35 a 445 Home V. Fonda . . 398 Hoesen v. Coventry 224 Luven v. Lyke . . 183 Ness V. Packard 638 >Orman v. Phelps . 179 Rensselaer v. Ball . 293 V. Bonesteel 261 V. Bradley 443 V. Brice . 220 V. Chadwick 384 V. Dennison 398 V. Gallup . 15 383 V. Gifford . 384 V. Hays . 293, 371 441 V. Jewitt . 292, 391 493 V. Jones . 158, 383 493 V. Quackenboss 599 V. Radcliff . 219 V. Reed . . 441 V. Snyder . . 493 V. Van Eenssela Rr . 774 Rensselaer's Heirs v. Pei mi- man 335 533 Santvort v. Sanford , 670 Schaick v. Vincent . . 522 Steenburgh v. Tobias . . 186 Wicklen v. Poulsou . . 1,54 447 Varick v. Jackson 84 V. Smith and The Attorn ey- General .... ^2fi Vasper v. Eddoes 7,34 Vattel V. Herner 378 Vaughan v. Blanchard . . . 379 V. Menlove . . . 197 Vaupel V. Woodward . . . 393 Vausse v. Eussel . . . 649 INDEX TO CASES CITED. xliii Vavasor's Case 347 Vedder v. Vedder 206 Veeder v. Ponda 49 Veghte V. Brownell ...... 581 Verlander v. Codd 46 Vernam v. Smith 14, 629 Vernon v. Jeffreys 259 V. Smith 261 V. Wynne 750 Verplanck v. Sterry 167 V. Wright 294 Viokery v. Jackson 358 Vincent v. liing 418 Vu-tue V. Beasley 566 Vivian v. Campion . . . _ . . . 666 Voorhies v. Voorhies . . ' . . 94 Voote V. Winch 243 Voyce V. Voyce 780 Vy vyau v. Arthur 260 W. Waddell v. Cook 613 Waddilove v. Barnett 653 Wade V. Mervin . ■ 266 Wadham v. Marlow .... 438, 620 Wadsworth v. Alcott 539 Wafer v. Mocato 412 Waggoner v. Jermaine 175 Wagner v. White 372 Wainscott v. Silvers 196 Wakeman v. Banks 474 Walcot V. Golding 674 Waldo V. Hall 445 V. Long 822 Waldron v. McCarty 808 Walford v. Beasley 36 Walker v. Davids 497 V. Dewey 337 V. Hatton 110 V. Johnson 588 V. Keeves 449 V. Richardson 511 V. Sherman 544 V. Walker 32 W.Wheeler 277 Walker's Case 378 WaU V. Hinds 115, 448 V. Hunt 790 Wallace v. King 609, 763 V. McLaren 569 Waller v. Dean, &c. of Norwich . . 266 V. Morgan 26 Walmsley v. Lindenberger ... 98 Walsal V. Heath 102 Walter v. Maunde 884 V. Post 233 V. Waterhouse 707 Walters v. Pfeil 231 Walton V. Cronley .... 436, 449 V. Pile 523 .W.Flint 384 V. Kersop 751 V. Waterhouse 364 Ward u. Andrews . 350 Ward V. Duke of Buckingham . . 423 V. Hawley 745 V. Macauley 780 V. Mason 372 u. Shew 567 V. Smith 177 Waring v. King 641 Warn v. Bickford 325 Warner v. Hitchings 357 V. Page 420 V. Theobald 628 Warren v. Forney 564 V. Hearnside 19 V. Leland 161 V. Lynch 166 V. Mains 270 V. Eowen 378 Warring v. King 524 Warwick v. Bruce 94 Washburn v. Sproat 546 Watchman v. Crook ... . . 251 Waters v. Lilley 222 V. Same 266 Watherell v. Howell 845 Watkins v. Holman .... 25 Watson V. Atkins 341 I,. Bailey 104 V. Bonney 101 V. Home 341 V. Hunter 690 V. Watson 739 V. Welsh 540 Watts V. Acheson 515 V. Coffin 218, 380 Way V. Raymond 25 Weakley v. Bucknell 19 Weaver v. Lawrence 739 Webb V. Alexander 308 V. Austin 87, 91 V. Dixon 81 V. Jiggs 619 V. Plumer 252 V. Russell 118 Webber v. Shearman 62 Webster v. Bach 216 V. Stevens 189 V. Warren 676 Weddell v. Capes 510 Weed V. Crocker 88 Weeton v. Woodcock 551 Weidall v. Bosberry 588 Weigall V. Waters 881 Welch!). Bell 596 Weld V. Traip 42 Welford v. Beasely 35 Welland Canal v. Hathaway ... 90 Welles V. Castles 375 Wells V. Bannister 545 V. Head 196 V. Horner 679 V. Hornish 561 V. HoweU 765, 186 V. Mason 304 V. Ody 745 V. Smith ....'.... 274 Welsh V. Myers 456 xliy INDES TO CASES CITED. "Welsh V. Nash 190 V. Rose 565 Wentworth v. Cook 459 V. Tubb 97 West V. Cartledge 640 V. Emmons 265 V. Eandall 170 V. Sink 601 Westfall V. Anker 782 Westlake v. De Graw . . . 373, 381 Wetherell v. Geering 408 V. Howell 345 Wetherill v. Bird 418 Wetmore v. Tracy 208 Wheaton v. East 93 Wheeler v. Brant 195 V. Copeland 529 V. McFarland 739 V. Newbould . ... 540 V. Train 748 Wheeh-ight v. Beers 258 V. Wheelright . . 167 Whelpdale's Case 99 Whipley v. Dewey .... 533, 652 Whitbeck v. Cook 306 V. Skinner . . . 331, 374 Whitchurch v. Cudmore .... 504 White V. Arndt 551 V. City Council ... 181 V. Cougler 137 V. CravTford 240 V. Eagan 164 V. Hagner . . . 349 V. Livingston . . . .26 V. Nicholson 343 V. Simer 140 V. Small 98 V. St. Guiron's 698 V. Warner ... ... 496 Whiteacre v. Symonds 485 Whitecot V. Eox 497 V. Nine 308 Whitehead v. Clifford 473 Whitely v. Roberts 568 Whitfield V. Brandwood .... 241 Whiting V. Breston . . .\ . . . 548 Whitlock V. Cook 308 V. Duffield 333 Whitmarsh v. Cutting 234 Whitney v. AUaire .... 176, 304 V. Gordon 60 V. Myers .... 379, 512 Whittaker v. Barker 542 Whittingham's Case 95 Whitton V. Peacock 87, 260 V. Smith 511 Whitworth v. Smith 730 Wickham v. Freeman . . . 783, 785 Wicks V. Caulk 170 V. Jordan 535 Wigford w. GiU 209 Wigg V. Wigg 291 Wiggin V. Woodruff 721 Wiggins V. Armstrong 577 V. Peters 78 Wigglesworth v. DaUison .... £38 Wight V. Dickson 164 Wilber v. Paine „o Io„ Wilcox V. Wood 78, 539 Wilde V. Chantillon -65 Wilder v. Ewbank .... 497, 7^0 Wildman v. Wildman 101 Wilds V. Hudson E. R. Co. ... 199 Wilford V. Rose 684 Wilkins v. Fry 44 V. Wingate 618 V. Wood 540 Wilkinson v. Colley .... 480, 526 i;. Gaston 78 V. Hall 57 V. Wilkinson 407 WilksD. Peck 104 Willan V. Willan 333 Willard v. Henry 288 V. Reinhardt 419 V. Silliman 388 V. Tillman 426 V. Warren 787 Willey V. Moore 149 Williams v. Bank of United States . 280 V. Bosanguet 15 V. Fry 281 V. Gale 208 V. Handley 164 V. Healey 265 V. Howard .... 420, 566 V. Inabert 100 V. N. Y. Cent. E. R. Co. . 201 V. Potter 301 V. Safford 213 V. Sherman 636 V. Smith 483 V. Spencer 578 V. The Mayor of Annapolis 705 V. Watkins 707 V. Welsh 750 V. Wetherby 667 u. Williams 355 V. Woodward .... 52, 450 William Street matter of .... 519 Willingham ;;. Joyce .... .47 Willington v. Gale 118 Willis V. Parkinson 179 Willison V. Watkins 420 Willoughby v. Backhouse .... 731 WiUs V. Back 139 V. Stradling 145 Wilmot V. Lansdown 694 Wilson V. Green 724 V. Harman 389 V. Mackreth 780 V. Martin 66 V. Smith 353 V. Wooltryes 90 Windsor v. China 78 Winship v. Pitts 348, 601 Winslow V. Henry 154 V. Merchants Ins. Co. . . 550 V. Tighe 262 Winter v. Loveday 73 Winterbotham v. Ingham .... 25 Winterbourne v. Morgan .... 605 INDEX TO CASES CITED. xlv Winton v. Cornish 620 Wise V. Metcalfe 343 "Withy V. Mumford 307 Withers v. Birch 264 V. Bircham 115 Woglam V. Cowperthwaite . . . 558 Woloott V. Van Sandford .... 653 Wolfu. Merritt 391 Wolfe V. Frost 81, 189 WoUaston v. HakeweU 431 Wolveridge v. Steward . . . 371, 454 Wood V. Clark 587 V. Day 88 V. Hickock 398 V. HubbeE 177, 375 V. Leadbitter 251 V. Nunn 578 V. Parsons 387 V. Partridge 391 V. Pope 368 V. Wilcox 640 V. Wood 716 Woodward v. Brown 521 V. Gyles 696 Woodworth v. Bank of America . . 165 WooUe V. Washburn 664 WooUey v. Watling 641 Woolsey v. Constant 165 Worcester v. Eaton 93 V. State of Georgia . . 8 Wordsworth v. Lyon 728 Worrall w. Munn 169 Worthington v. Young 102 Wotton V. Cook 434 Wright V. Cartright 75 Wright V. Cooper 697 V. Douglas 90 V. Freeman 217 V. Howard 224 V. Smith 525 V. Trevesant 42 V. Williams 207 Wyatt V. Harrison 197 Wymau v. BaUard 320 V. Dorr 749 Wyndham v. Way 546 Wynkoop v. Bruger 213 Wynn v. Allard 199 Tale V. Dederer 104 Yarborough v. Monday 141 Yaw V. Leman 341 Yeakle v. ISface 242 Yeates v. Prin 720 Young V. Collins 243 V. Dake 15, 30 V. Irwin 698 V. Muntz 675 V. Peyser 387 Yoimgblood v. Lowry 558 Zouch V. Parsons 93, 101 dem. Ward v. WiDingdale 485 Zule V. Zule 387, 466 THE LAW LANDLORD AND TENANT. THE LAW LANDLORD AND TENANT. INTRODUCTION. § 1. The relative position of a civil government to its citizens — 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 tenure 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 to 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 devolve, the tenure is at an end, his land returns to the com- mon 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 relation, which springs up between the original tenants to the State and the various individuals among whom they find it convenient or neces- sary to divide their possessions, for purposes of cultivation or improvement. And this relation is necessarily modified in its character by the peculiar structure of the government imder which it subsists. History teaches, that all municipal law is, in fact, but 1 2 LAW OP LANDLORD AND TENANT. a reflection of the policy and manners of the age from which it sprung ; while the history of our law exhibits the feudal institutions of our Norman ancestors extensively incorporated throughout the whole body of modern jurisprudence, but most ultimately with that portion of it which forms the subject of this Essay. It will, conse- quently, 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 humanity and refinement of free America, without some previous knowledge of the history and character of the feudal ages, in which it was matured, if it did not originate. § 3. By the theory of the English law, upon which our legislar tion 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 which surrounded him, and who had been useful to him in war, and were capable of advising him in peace. These again sub- divided their districts among their immediate followers and depend- ents, the actual occupants and cultivators of the soil. To all such grants, however, an express 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 service, 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, ac- countable 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 pre- carious kind, depending entirely on the pleasure of his lord, and afforded little if any encouragement to the improvement and culti- vation of the land.i 1 The Norman period is assumed in of Doomsday bears no reference to any the text, for the purpose of exhibiting the simultaneous surrender of former ten- doctrine of tenures ; but there is no reason ui-es, and re-grant of the same lands as for thinking that the material parts of the feudal. The Normans probably intro- feudal tenure, as exercised by the Nor- duced some new provisions into existing mans, did not exist in England before tenures, and attempted more ; and we their arrival. A large portion of the lauds know there was a contest between them entered in the Conqueror's celebrated and the English, whether many of those Doomsday-book, are stated to be held laws which had been neglected for a time by the same tenure, at the same rent, should be restored or not. But the fact and subject to the same services, as of their having been restored will serve to they were in the time of Edward the show that no great change was ultimately Confessor ; and the internal evidence allowed to prevail ; and that the general INTRODUCTION. 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 precarious, 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 con- sider themselves entitled to demand the enjoyment of their lands for life. Finally, it was found that a man would more willingly expose himself in battle, and devote himself more unreservedly 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 vnth the most onerous incidents. No man could dispose of his lands, either by sale or by will, for ever so short a period, without the consent 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 seizins.^ Women were obliged to marry the nominee of the lord or forfeit their lands, and frequently 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 kingdom, 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 system of the laws continued much the first introduced into England, there seems same under the new dynasty as it had to be none that terms for years were of been under that of the Saxons, with the common occurrence prior to the reign exception of such usurpations as were of Edward the First, as the statute of 6 from time to time forced upon the Eng- Edw. I., c. 11, refers to a letting for a lish. Spel. Gloss., 219; M. & S. Hist, of term of years, apparently as an ordinary Boroughs, 69 ; Hale's Hist. Com. Law, 120. event. See also Co. Lit., 64, a note ; 2 Bl. Com. ^ Fines upon alienations, are in modern 48- Reeves's Hist, of Eng. Law, vol. times known as bonuses or gratuities, 1. ' p. 8 ; Gilb. on Ten. 30 ; Bacon on which the owner receives as the consid- Leases 1. eration of granting his permission to the 1 Whatever uncertainty there may be transfer of a lease, as to the time when feudal tenures were 4 LAW OP LANDLORD AND TENANT. lord's man. Surrendering to him his intelligence with his inde- pendence, his whole Hfe was spent in a laborioixs 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 warlike, 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 formation, 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 ;i yet 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 1 The military tenure of land had heen originally created as a means of national defence ; but, in the course of ages, what- ever 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 infent, the sovereign was guardian, and was not only entitled to great part of the rents during the minority, but could re- quire the ward, under heavy penalties, to marry any person of suitable rank. The chief bait which attracted a needy syco- phant to the court, was the hope of obtain- ing, 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 therefore solemnly abolished by statute (at his restoration) ; and no relic of the ancient tenures in chivalry was suffered to remain, except those hon- orary services which are still, at a corona- ation, rendered to the person of the sovereign by some lords of manors. — Macaulay's England, vol. i. 144. ^ The restraints upon alienation, men- tioned in the text, being of feudal origin, were predicated upon that provision of feudal law which prohibited 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 reversion, or at least a possibility of reversion in them. Chancellor Kent (3 Com. 506) gives an outline of the various causes which grad- ually 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. la the State of New Tork, the Acts of October 22d, 1779, transferring the seigniory of all lands, escheats, &c., from the King to the people of this State, and the Act of February 20th, 1787, put- ting an end to aU feudal tenures, and sub- stituting 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 aliena- tion, 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. R. 467. INTRODUCTION. 5 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 legis- lative enactments, forced from the hand of unwilling power by the gradual advance of intelligence, and the resistless demands of the money-king. Commerce, these separate properties were at length blended into one estate ; and the period finally arrived when the true proprietor held his lands of no superior lord to whom he owed 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 relinquishes, 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 useful 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 knighl^service. The term itself was applicable to freehold tenures of the Crown, and to all others, which were not military tenures, but were always deemed to be of an inferior and servile character. As intelligence, however, in- creased, society advanced ; commerce began to flourish, and mili- tary services became less requisite ; while agricultural productions were more in demand, and the lord soon found his interest in commuting the one for the other. The substitution of a certain service, or the rendition of a stipulated sum, in place of all uncer- tain 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 pre- served to a great extent, their independence of these embarrassing 1 From a privative, and lode or leude, a which owes no rent or service to any vassal; that is, without vassalage. Land superior, is held tn aZWium. 2B1. Com. possessed by a man in his own right, and 104; 9 Cow. R. 437. 1* 6 LAW OP LANDLORD AND TENANT. tenures; and, with a slight exception, their present condition includes no tenure but that which we have said is incident to every free government.^ The law of nations has always acknowl- edged the right of a nation to acquire property, and sovereignty, over any uninhabited country which it discovers 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 lawfully 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 on which they stand in no particular need, and of which they make no actual and constant use. The discovery of America, consequently, conferred upon the government by whose authority such discovery was made, the ulti- mate dominion of the soil, with the right of granting title thereto, subject to the Indian right of occupancy.^ The original settlers of this country invariably respected this right ; 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, recog- nized the Indian title, and, from time to time, acquired by fair purchase such lands only as the Indians were willing to sell.^ The General Government has acted upon the same humane principle ; and the Indian title has, by this mode, become nearly extinguished throughout the wide expanse of our national domain. § 9. The ownership of land throughout the States is now essen- tially free and independent ; but in the State of New York, previous 1 The principles of English liberty necessary to define the tenure by which were strong in the bosoms of our ances- they as well as all other settlers upon the tors, when they fled from feudal oppres- lands of the State should be thenceforth sion, and founded on this western shore a held. government of equal laws, and of equal ^ Worcester v. The State of Georgia, riglits. They steadily opposed the intro- 6 Peters, 515 ; Johnson v. Mcintosh, duction of any of the laws or institutions Wlieat. R. 543. of the mother country which were not in ^ Vattel, book 1. chap. 18, says, " We conformity to those principles, or which cannot help praising the moderation of the in any respect violated the rights of the EngUsh Puritans, who first settled in New original owners of the soil. As to a ten- England" (and he might have added of the ure of land among the savages, there was first settlers in all the other colonies); none; no individual cultivated land for "who, notwithstanding their being fur- his own benefit, nor claimed protection in nished with a charter from their sover- its enjoyment. It was only when civil eign, purchased of the Indians the lands government was established, and they they resolved to cvdtivate." were subjected to its sway, that it became INTRODUCTION. 7 to the year 1787, a considerable portion of land was held in free and common socage, under grants from the British Crown ex- pressly creating such a tenure. During that year, the Legislature abolished military tenures, and all their incidents, from the 30th August, 1664, when the province was surrendered by the Dutch to the English. It also abolished all tenure in socage, in capite, with all its fruits and consequences ; and converted all manorial and other tenures into free and common socage. It reserved only the rents and services due to tenure in free and common socage from the persons previously entitled to them, together with the right of distress, as incident thereto. Biit the Revised Statutes of that State, in 1830, went the entire length of abolishing the existing theory of socage tenures of every description, with all their inci- dents, and declared that all lands within the State should be, thenceforth, held upon a uniform allodial tenure, vesting the entire and absolute property in the owners, according 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 adfiption of the Constitu- tion of 1846, become a fundamental law of the State. § 10. Allodial estates have, in fact, no mark or incident of tenure attached to them, being enjoyed in absolute right; wliile the term tenure, employed by the statute, implies the holding of some superior, and a subjection to an ultimate dominion, which, we have seen, is abolished, except so far as is necessarily implied in the duty of allegiance to the State, but it is used in the statute in a popular sense for right or title, retaining the phraseology of Eng- lish law without its signification, 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 siipposed 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 person 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 Revo- 8 LAW OP LANDLORD AND TENANT. lution of 1776, which transferred the domain, with the sovereignty of Great Britain, to the people of the United States. So that fidehty 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. According to the doctrine of our repubUcan law, all pri- vate title to land within the United States, is derived ultimately, as we have seen, from grants of the State, or general governments, or from royal grants prior to the. Revolution, confirmed by those gov- ernments.^ These grants to the original proprietors — of which the manor lands in New York may be cited as instances ^ — were frequently of very large extent, and, from the inability of the pro- prietors 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 cultivate and improve the land, to the advantage, not only of the proprietor, but of the public. § 13. The return ugjially made by tenants employed in the culti- vation of land was an annual contribution of corn, cattle, or other produce ; or in the performance of some service, either in the family 1 Fletcher v. Peck, 6 Cranch, E. 87 ; house. Alienation by the tenants was Jackson v. Waters, 12 Johns. R. 365. restrained, unless with the lord's consent, ^ In this State certain purchasers, or, to be obtained by paying to him one- as they were variously called, patentees, quarter, or some other part of the purchase patroons, or lords, early obtained from the money. The right to distrain for rent — British sovereigns letters-patent, granting a severe but not then unusual legal large districts in the central regions of remedy — was incorporated in the leases, the Colony. Some of these proprietors, with stringent covenants for tlie payment in a spirit of emulation then deemed of taxes and other purposes; and with harmless and laudable, obtained permis- various conditions securing to the land- sion from the Crown to erect manors lord a right to reenter and resume the within these districts, with certain politi- land. However unwise for both contract- cal, judicial, and legislative privileges and ing parties such conveyances may now advantages, which have long since become seem, it ought to be remembered, that, at obsolete. With reference to those advan- the time of their institution, they were not tages, however, they adopted a system of at all anomalous, and they contributed to granting lands, not absolutely in fee- the settlement of extensive districts by an simple by deeds, but as qualified estates in industrious population, who had not suffl- fee-siraple, by instruments which are com- cient capital to. become absolute pur- monly called leases, whereby the patroon chasers of estates. The validity of these or landlord reserved for his own use all leases in fee, reserving a perpetual rent, water-power and mineral wealth. Per- the source of much angry litigation, has petual rents were reserved ; portions of been at length definitely established by which were paid in wheat and suppUes the court of last resort, in the cases of for the table of the proprietor, and the Van Bensselaer v. Hays, 19 N. Y. R. 68 ; residue in services or labor, to be per- and The same v. Ball, ib. 100. formed by the tenants about his manor- INTRODUCTION. 9 of the proprietor or upon the farms which lie retained in his posses- sion. In proportion, however, as agriculture improved and money increased, it was found that these services, although burdensome to the tenant, were of little advantage to the proprietor ; and that the produce of a large estate could be much more conveniently disposed of by the farmers themselves, who raised it, than by the landlord or his bailiff, who was formerly accustomed to receive it. A commu- tation 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 generally 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 con- venient periodical income, naturally presents one of the most certain and regular returns for the employment of capital ; 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 purposes of com- merce. The terms and duration of possession, and the mode of enjoyment, in either case, necessarily assumes the shape of a con- tract, express or implied, which constitutes a lease; while the parties themselves are placed in the relation of landlord and tenant. 10 LAW OP LANDLORD AND TENANT. [chap. I. CHAPTER I. THE CREATION OP A TENANCY. § 14. 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 certaint rent to be paid therefor. The contract itself is called a lease or demise, and is a species of coilveyance for life, for years, or at the will of one of the parties, usually containing a reservation of rent to the lessor. A stated rent, however, 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 a reservation of rent.^ Independent of the idea of a contract, a lease also possesses the property of pass- ing an interest, and thence 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.^ 1 Hunt V. Comstock, 15 "Wend. R. 667 ; Doolittlew. Eddy, 7 Barb. 74; 4 Cruise, 15; Orleans Theat. Ins. Co. v. Laffercanderie, 12 Rob. La. R. 472. The agreement im- plied 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. R. 327; 21 Wend. R. 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 John. R. 358. ^ 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 appllca^ tion to the condition of society under a re- publican government. In feudal times this estate was, perhaps, more valuable and permanent than an estate for years, as long terms were then unknown. It may have been 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 will any one, in our commercial age, assert, that an estate for the life of any man is of as much value, intrinsically, or entitled to equal consideration with a term of a hun- dred years? The Revised Statutes of New York have modified this doctrine by making the interest of a lessee an estate in land, and declaring it to be subject to the lien of a judgment, and liable to taxa- tion, and to be sold under execution, the same as real estate. 1 R. S. 722. Trus- tees of Elmira v. Dunn, 22 Barb. R. 402, 7 Wend. R. 468. It goes to the executor, however, as personal assets of the testa- tor, and does not descend as real estate to the heir at law, 2 R. S. 82, § 6. 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 Indiana R. 369. CHAP. I.] THE CREATION OP A TENANCY. 11 § 15. The estate of a lessee for years is called a term, termmus, because its duration is limited and determined; for every such estate must have a certain beginnmg and a certain end. It is perfected only by the entry of the lessee ; for, before 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 will it qualify the owner to maintain an action of trespass or ejectment.^ The lessee may enter at any time after the period fixed for his taking possession, during the stipulated con- tinuance of the term, notwithstanding the death of the lessor. And, after his entry, he becomes absolute owner of the premises for the term granted, the deed taking effect from the time of its execu- tion. But the entry of the lessee is not necessary to entitle the lessor to sue for rent, since it becomes due by virtue of the con- tract, and not by reason of the entry ; except in the case of a lease at will, where rent becomes due only in consequence of the occu- pation.^ § 16. A term signifies not only the limitation of time, or period granted to the lessee, for the occupation of the premises, but it in- cludes 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 and interest which is conveyed, but they properly apply to the instrument, or means of conveyance. And it is essential 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 ex- ceeding his own term, it will, in either case, amount to an assign- ment of the term.^ But if a lessee disposes of the term granted to 1 Williams v. Bosanquet, 1 Brod. & estate does not vest in him until entry Bing. 238 ; Co. Lit. 46, b. The expres- Co. Lit. 46 ; 2 Bl. Com. 144, 314 ; Wood sion interesse termini is also used to denote v. Hubbell, 10 N. Y. R. 488. the interest of a lessee in a term that is ^ Kaine v. Alderson, 6 Scott, R. 691 ; to commence in future. Copeland v. s. c. 4 Bing. N. C. 702. The time be- Stephens, 1 Bar. & Aid. 593, 606. tween the making of the lease, and that 2 SaflFyn's Case, 5 Coke, 123, b; s. c. for its commencement in possession, is Cro. Jac. 60 ; Cro. Eliz. 127. An interesse no part of the term granted by it. Young termini is a right to the possession of a u. Dake, 5 N. Y. R. 463. term at a future time. It is a mere inter- * Harker v. Birbeck, 3 Burr. 1556 ; 1 est in contra - distinction to a term in Black. R. 482. possession ; and its essential qualities ^ Pluck v. Digges, 2 Hud. & Br. 1 ; 5 arise from the want of possession, 4 Kent, Man. & By. 157; Hicks v. Downing, Ld. 97 " A release to him," says Littleton, Ray. E. 99 ; Oxley v. James, 13 Mees. & " before entry, is void." Lit. 3, § 459. The Wels. 209. 12 LAW OP LANDLORD AND TENANT. [CHAP. I. liim, reserving any portion thereof, however small, the instrument will operate as an under lease} And the materiality of the distinc- tion consists in this, that, while an assignee is liable to the original lessor for all the obligations of the lessee, by 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. § 17. As to what property may be demised, it is a general rule, that any thing, corporeal or incorporeal, lying in livery or in grant, may be the subject of a demise. And, therefore, not only lands, but commons, ways, fisheries, franchises, estovers, annuities, rent- charges, and all other incorporeal hereditaments, are included in the common-law rule.^ Goods, and other personal chattels, may also 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.^ And we may here observe, that 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.* § 18. It is frequently found convenient, also, to include the sheep or other live-stock, and farming implements upon land, or the furniture and other chattels in a house, in the contract of lease ; and they have hence, io a certain degree, acquired demisable qualities, although the interest which passes to a lessee is very dif- ferent from that which is transferred by the lease of a house, land, or other hereditament. The lessee has the use of them during the term, and is 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 possi- bility; no lease or grant can, consequently, be made of them, during or after a term in possession, until the lessee has redelivered 1 Fulton V. Stuart, 2 Ham. Ohio E. 221 ; see Briggs v. Oaks, 26 Vert R 138 • Crusoe v. Bugbey, 3 Wils. R. 224; Van Smith v. Niles, ib. 315. ' ' Rensselaer v. Gallup, 5 Den. R. 454 ; » 2ule v. Zule, 24 "Wend. R. 76 Smiley v. Van Winkle, 6 California R. * Swift v. Mosely, 10 Vert. R. 208; ^^% c>. ^ ,, tioo T. A. ^ 28 ,6. 1 ; Farrant u. Thompson, 5 Barn. & 2 Shep. Touch. 268 ; Bac. Abr. Leases, Aid. R. 286. (A.) ; Mickle v. Mills, 7 Casey, 20. And SEC. I.] A TENANCY BY IMPLICATION. 13 them. And, 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, in compensation for the rent paid by the lessee. It is, therefore, usual upon such leases, to annex a schediile of the several articles, and 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.^ SECTION I. A TENANCY BY IMPLICATION. § 19. The relation of landlord and tenant may be created, either by implication or by express contract. 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 all such cases it will be presumed that the occupant intended to pay for the use of the premises. A tenancy will also be implied, in many cases, where there has been no distinct agree- ment between the parties, or where, from various causes, the agreement may have ceased to be operative. Thus, the occupation of premises, previous to,' or pending the execution of a lease, or the payment of rent under an invalid agreement, are circumstances from which this relation will be implied, sufficient to authorize the collection of subsequently accruing rent.^ And, if a man enters 1 Putnam v. Wyley, 8 John E. 432 Newton v. Wilson, 3 Hen. & Munf. 470 Co. Lit. 57, a ; Spencer's case, 5 R. 16, b 2 Doe V. Smythe, 4 M. & S. 347 ; Knight V. Bennett, 3 ISingh. 361 ; Hamer- ton V. Stead, 5 Dow. & Ry. 206 ; 2 B. * Billings V. Tucker, 6 Gray, 368. A lease C. 478 ; Wealtley v. Bueknell, 4 Cow. R. of land embraced certain personal chattels, 473. A notice to quit is a recognition of which it was declared should be a part of an existing, tenancy. Scott v. Miller, 2 C. the premises demised, and should remain & P. 848. An occupant is one who has on the premises at the end of the term, or the actual use or possession of a thing ; be replaced or paid for by the lessee ; and and occupancy impUes the exclusion of the coTenant to surrender the demised pre- every one else from enjoyment. Redfield mises at the end of the terra, contained an v. Utica & Sy. R. R. Co., 25 Barb. R. 54. exception of damages hy the elements ; and Mere permission to occupy certain pre- the chattels were destroyed by accidental mises without pay, on condition of leaving fire during the term. It was held, that the whenever required by the owner to do so, lessee was not bound to replace or pay for does not create a tenancy ; for rent is of them ; the last-mentioned covenant modi- the essence of a lease. Fisk v. Moore, fying the strict terms of the other.. Allen 11 Eob> La. R. 279, «. Culver, 3 Den. R. 284. 14 LAW OP LANDLORD AND TENANT. [CHAP. I. under a void lease, he cannot be treated as a disseizor, but becomes a tenant at will.^ So the taking of the key of a house, for the pur- pose of occupying it, but without going into the actual occupation, has been held to imply a tenancy.^ And, as a general rule, it may be stated that the mere occupation of land, with the owner's con- currence, will enure as a tenancy from year to year, or at will, according to circumstances, determinable at the pleasure of the owner.3 § 20. 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 compro- mised 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 be 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: it was pre- sumed she received such rents by her husband's authority, and 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 one year, and until he paid a mort- gage held by such creditor ; and, where one entered upon premises, under an agreement to accept a lease for a certain period, but sub- sequently refused to accept it ; in each case the relation of landlord and tenant was held to exist.^ § 21. But if no rent has been paid, and no concurrent act of the parties, or other circumstance exists, from which consent to a ten- 1 Digby V. Atkinson, 4 Camp. 275; 1 N. Y. R. S. 739, § 143. Doe dem Warren v. Hearnside, 1 "Wils. R. 176; "Warner v. Brown, 8 East, R. 165 In Doe dem. Martin v. Watts, 7 Term R. 83. effect, an action for use and occupation of 2 Little V. Martin, 3 Wend. E. 219. premises may arise from the mere waiver 8 Any person entering into demisable of a tort, or the simple' letting into posses- premises by the consent or connivance of sion. Per Patteson J. in Church v. Im- the tenant becomes a tenant. Benson v. perial Gas Light Co., 6 Ad. & E 854 Bolles, 8 Wend. R. 175 ; Jackson v. Miller, * Doe dem. Miller v. Asden 2 Esc R 6 *. 228 ; Graves v. Porter, 11 Barb. R. 528. ' 592. Where a tenant for years made a ^ Doe dem. Leicester v Bigwg 1 conveyance in fee, of the premises, under Taunt. R. 367; 5 B. & C. 127- 1 r' & which the grantee entered, he was held M. 237. ' to be in as assignee of the tenant. Jack- ^ Hunt v. Comstock, 15 Wend R 665 • eon V. Davis, 5 Cow. R. 123 ; for a deed Anderson v. Prindle, 23 Wend. E 619 ' conveys only the interest of the grantor. SEC. I.] A TENANCY BY IMPLICATION. 15 ancy may be inferred on the part of the owner, a tenancy cannot arise from mere occupation. For if a man gets into a house with- out the privity of the owner, although they may afterwards enter into a negotiation for a lease, but differ about the terms ; or if, after being let into possession, he agrees to sign a written lease, and find surety for the rent, but does neither ; no species of ten- ancy is created thereby, but the occupant, in either case, becomes a mere trespasser.^ § 22. The payment and receipt of rent is the ordinary acknowl- edgment of a tenancy ; but if, after the expiration of a term, the tenant continues to hold over, without paying rent, the landlord may elect to treat him either as a trespasser or a tenant. If he adopts the former course, he must forthwith proceed to recover possession of the premises ; for if he suffers him tq remain, and receives rent accruing after the expiration of the term, or in any other way acknowledges him as tenant, a new tenancy arises upon the terms of the former lease, determinable only by a regular notice to quit. The tenant, however, has no such power of election as that which belongs to the landlord ; for if he holds over, though for a very short period, without any equivocal act, at the time, to give his holding the character of a trespass, he is not at liberty to deny that he is in as tenant, if the landlord chooses to hold him to that relation.^ So the occupant of a house, by submitting to a distress for rent, which is stated, in the notice of a distress for rent, to be due by him to the party distraining, acknowledges a tenancy from such party .^ 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 his term, which by the terms of the lease the landlord was 1 Doe V. PuUen, 2 Bingh. N. C. 749 ; ^ Panton v. James, 3 Camp. E. 372. Doe V. Quigley, 2 Camp. 505 ; Doe v. Payment of a quarter's rent, by a person Cartwright, 3 B. & A. 326. The relation in actual occupation, is sufficient evidence of landlord and tenant can only arise of a yearly tenancy, at the rent indicated where he who is in possession has, by by the payment payable quarterly. Mor- some act or agreement, recognized the ris v. Niles, 12 Ah. Pr. R. 103 ; 4 Taunt, other as his lessor or landlord, and taken K. 128 ; 3 Bing. 361 ; 5 A. & E. 856. So upon himself the character of a tenant where a mortgagee, notwithstanding a under him, so that he is not at liberty former lease of the property, acknowl- afterwards to dispute his title. Per. edged himself to be in possession, and McCoun J. in Benjamin v. Benjamin, 5 N. promised to pay rent, he was held to have Y. K. 388. thereby created the relation of landlord 2 Conway v. Starkweather, 1 Denio, and tenant. Goodman c. Jonas, 26 Day, R. 113 ; 4 McCord, R. 59 ; Abeel o. Rad- E. 264. cliff, 15 Johns. R. 505 ; Doe dem. Jordan V. Ward, 1 H. Bl. 97. 16 LAW OP LANDLORD AND TENANT. [CHAP. I. bound to do ; it was held that the tenant was not discharged from the payment of rent, but was subject to the general rule, that a ten- ant holding over after the expiration of his lease, with the consent of the landlord, becomes a tenant from year to year, subject to the terms and conditions of the original lease.-"- § 23. But the receipt of rent is only &primd facie acknowledg- ment of the existence of a tenancy ; for where the amount received is trifling, or does not appear to have been paid as rent, or bears no proportion to the real value of the premises, the rule does not apply .2 And if a lease is not void, but voidable only, the mere receipt of rent under it does not create a new tenancy, although it establishes the former one.^ Nor will a new tenancy be created by a mere agreement for an increase of rent in the middle of a term.* Nor if, after a tenancy has expired by its own limitation, the land- lord merely neglects to take possession of the premises, if he does no act in the mean time recognizing the party as his tenant.^ And in general, if rent is not paid and received as such, but stands xipon some other consideration, it will not be considered as evidence of a design to establish a tenancy.^ § 24. A mere participation in the profits of the land with a joint occupation, or an occupation which does not exclude the owner from possession will not amount to a tenancy ; as 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 contemplated by the parties, and have the exclusive management thereof, and that the furniture, at the end of the term. 1 Holsman v. Abrams, 2 Duer, R. 435. taken and rent paid to another is no evi- The landlord, ho-wever, is subject to the dence of a contract of lease. Mar-wood v. same rule, and can recover no more than Waters, 13 C. B. 820. Nor -will a verbal the rent originally reserved. He is not license by a tenant to the landlord for the entitled to an increased rent, proportioned occupation by the latter of part of the to the increased value of the premises. demised premises at a certain rate, vary 2 Right V. Rawden, 3 East, R. 260; a written agreement between them as to Doe dem. Jackson v. Wilkinson, 3 B. & C. the amount of rent. Hilton v. Goodhind 413 ; 5 D. & R. 273 ; Den dem. Brane v. 2 C. & P. 591. Ra-wlins, 10 East, R. 261; Claridge v. « Right v. Ra-wden, 3 East, R. ; Den Mackenzie, 4 M. & G. 143 ; 11 Ad. & El. dem. Brane v. Rawlins, 10 East, R. 261. 307 ; 7 *. 447. The payment of rent to constitute a ten- 3 Bryan v. Bough, 4 Bar. & Al. R. 401. ancy, must be paid by the party in the * Doe dem. Bedford v. Kendrick, cited capacity of tenant. Strahan v. Smith, 4 Adams on Ejectment, 129; Geechie o. Bing. 91. And its mere payment is no Monk, 1 Car. & Kirw. 307. evidence of any particular manner of 5 Cobb V. Stokes, 8' East, R. 358. holding. Phillips v. Mosely, 1 C. & P. After treaty for a lease, forcible possession 262. SEC. I.] A TENANCY BY IMPLICATION. 17 should be restored to the company by the defendant.^ So, if land is let wpon Shares, it does not amount to a lease with the rent to be paid in produce ; for the possession of the land remains in the owner, and the parties are tenants in common of the crop.^ But if the lessee agrees to pay a certain part of the crop expressly as rentf or if he holds the land with the usual privileges of an exclusive enjoyment, it is in general the cfeation of a tenancy for the time agreed upon, though the land may be taken to cultivate on shares.* And the technical form of an agreement, even though it may pur- port to be a lease with a reservation of rent, is not decisive in deter- mining the relation of the parties under these circumstances ; for where the owners of a farm rented it to two persons, and agreed that they should occupy and work it for a year, and, if they per- formed the agreement, might have it in the same way for a year longer, the occupants, in consideration of the use of the land, agree- ing to yield and pay the owners one-half of all the grain raised, it was held, that, until a division of the grain, or something equiva- lent thereto, the parties were only tenants in common of the produce, although the contract contained the technical plirase- ology of a lease, reserving rent; inasmuch as the shares of the owners were uncertain in amount, depending upon a division of specific products ; although it would have been otherwise, it was said, if the amount of grain to be rendered had been fixed and certain.^ 1 State u. Page, 1 Spear, E. 408 ; 790. But see Hughes v. Chatham, 5 M. Walker v. Fitts, 24 Pick. R. 191 ; John- & G. 54. son II. Carter, 16 Mass. R. 443. One stay- ^ Hoskins v. Rhodes, 1 Gill & Johns, ing at an inn or hotel is a guest, and not a 266 ; Newcomb v. Agan, 2 Johns. R. 421 ; tenant. Bac. Abr. tit. Inn. c. 5, 6. A Alwood v. Euckman, 21 111. R. 200. contract for board and lodging at a hotel * Jackson v. BrowneU, 1 Johns. R. or boarding-house does not create the re- 267 ; Tuttle v. Bebee, 8 Johns. R. 152 ; lation of landlord and tenant. Wilson v. 8 Cow. 220 ; Doremus v. Howard, 3 Zab. Martin, 1 Den. R. 602 ; nor to work on a R. 390 ; Fry v. Jones, 2 Rawle, II ; 3 farm for a year, Haywood v. MiUer, 3 Hill Hill, R. 90. R. 90. • ^ Putnam v. Wise, 1 HiU, R. 234 ; 2 Oakley v. Schoonmaker, 15 Wend. CasweE v. Districh, 16 Wend. R. 379; R. 226; Maverick v. Lewis, 3 McCord, 15 lA. 595; Chandler v. Thurston, 10 R. 211; Bradish u. Schenck, 8 Johns. R. Pick. R. 205; Harrower v. Heath, 19 151. Authority to dredge for oysters is Barb. R. 331. Upon a covenant that in a Hctose, and not a lease passing the pos- case the lessee should suffer or permit session. Colchester v. Brooke, 53 C. L. more than one person to every 100 acres & Eq. R. 339 ; 7 Q. B. 339. So where a to reside on, use, or occupy any part of person employed in a particular capacity the premises, the lease should be void, if is permitted to occupy a house as inci- the lessee lets part of the premises to per- dental thereto, for which a sum is deduc- sons for a year to cultivate upon shares, ted from his wages, he cftnnot on being such persons are not mere servants, but dismissed from employment be regarded are tenants ; and if they, with the lessee, as a tenant. Hunt v. Colson, 3 M. & S. are more ia mmiber than there are tracts 2* 18 LAW OP LANDLORD AND TENANT. [chap. I. § 25. 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 the vendor and vendee of land, where the purchaser remains in possession after the agree- ment to purchase goes off; for possession was evidently taken in such case, with the understanding of both parties, that the occu- pant 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.^ Or where a tenant for the life of another, continues in possession after the determination of his estate.^ The same principle applies to the case of a mortgagor and mortgagee ; or to that of the tenant of a mortgagor, and the assignee of a mortgagee ; for no privity of estate exists between them.^ So with respect to a guar- dian or trustee of an infant, or husband seized in the right of his wife only, neither of these persons, holding over after the determi- nation of their respective estates, become tenants in any sense ; they are mere intruders and trespassers.* And, as a general rule, of full 100 acres each in the land, It is a breach of the condition and defeats the lease. Jackson v. Brownell, supra; Jack- son V. Eich, 7 ib. 194. And see Jackson u. Agan, 1 *. 273. 1 Watkins v. Holman, 16 Peters, K. 25; Jackson ;;. Miller, 7 Cow. R. 747; Burnett v. Scribner, 16 Barb. R. 622; Doolittle V. Eddy, 7 Barb. K. 75 ; Smith V. Stewart, 6 J. R. 46 ; Osgood u. Dewey, 13 *. 240 ; Curtis v. Treat, 21 Maine R. 525 ; Winterbotham w. Ingham, 23 E. C. L. R. When a vendee may be treated as a tenant at will, see Hall v. CoUamore, 2 C. M. & R. 120 ; Howard v. Shaw, 8 M. & W. 118. In a case reported in Massa- chusetts, the defendant gave the plaintifif a bond to convey to him certain premises, upon payment of a note on demand, with interest quarterly ; and in the mean time to allow him, his heirs and assigns, the peaceable and quiet possession of the pre- mises, until said conveyance should be made. The plaintiff paid the interest as it felt due, and the principal had never been demanded ; the court held, per Met- calf, J., that the legal effect of the bond was, a demise of the premises, continuing so long as the interest was paid, and there was no failure to pay the principal on de- mand, or accept a conveyance of the pre- mises. "Wliite V. Livingston, 10 Cush. R. 259. 2 Livingston v. Tanner, 14 N. Y. R. 64 ; Torrey v. Kernan, ib. 430. So where the owner of the fee, subject to a life- estate, made a lease to a thu-d person. Buck. ;;. Einninger, 3 Barb. R. 391. And where a person had for several years, prior to his death, been in possession of the premises, claiming to own the same ; after his death the applicant stated to his widow that she might continue to occupy until a certain day without paying rent, and she continued in possession; it was held that no relation of landlord and ten- ant had been shown. Benjamin v. Benja- min, 1 Selden, R. 884. See also Sylvester V. Ralston, 31 Barb. R. 286. ^ Davis V. Hemenway, 27 Vert. R. 589 ; "Way v. Raymond, 16 ib. 371. * Jackson v. Rowland, 6 Wend. R. 666; and see Roach v. Cosine, 9 Wend. R. 231; Carhsle v. MoCall, 1 Hilt. R. 399. At common law, also, there was a material distinction between the cases of a person coming to an estate by act of the party and afterwards holding over, and by act of the law and then holding over. In the first case, which included an estate deter- minable upon a life or lives, he was re- garded as a tenant at sufferance; in the other, to which belong guardians or trus- tees holding for infants, and husbands seized in right of their wives only, they were trespassers, for the relation o'f land- lord and tenant never existed. 4 Kent's Com. 115; Co. Lit. 57; Cruise Die., tit 9, ch. 2. SEC. II.j AN EXPRESS AGREEMENT. 19 a tenancy by implication can never arise, under a party wlio lias not the legal estate of the premises in question.-^ SECTION II. AN EXPRESS AGREEMENT, § 26. When a tenancy is created by an express agreement, it is either by parol or by deed. The former mode embraces all cases where the parties agree by mei'e 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. Any permissive hold- ing is sufficient for the purpose, and may be contained in a series of letters, or in a brief memorandum of the contracting parties ; and any phraseology will establish the fact, from which it appears to have been the intention of one of the parties voluntarily to dis- possess himself of the premises, and of the other to assume the pos- session, for any determinate period, whether the words made use of, run in the form of a license, a covenant, or an express agree- ment.^ § 27. Leases for years being considered mere chattel interests, arising out of a contract between the parties, passing only a tran- sient 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 pres- ent interest ; and when, in pursuance of such right, he entered, the object of the contract was accomplished, the term vested in the les- see, the seizin in the land still remaining in the freeholder. But as the tenant was never technically seized, and held only in the name 1 Morgel V. Paul, 2 Man. & Ry. 303 ; May then next, or at least until the ten- Hayward v. Hazwell, 33 C. L. & Eq. R. ancy be terminated by notice. The owner 157 ; 6 A. c& B. 265. Where a person is may not forcibly eject him, and defend in the quiet possession of premises, with the act by showing that such alleged parol the knowledge of the owner, for upwards lease was not binding upon him. Mar- of a month, and has taken such possession quart v. Farge, 5 Duer, E. 559. undei- a purchase from one who claims to ^ Moshier v. Eeding, 3 Fairf E. 478 ; hare a parol lease from the owner, and Merrick v. Lewis, 3 McCord, R. 211 ; Cas- was in actual possession for two months, well v. Districh, 15 "Wend. R. 379 ; Right he is to be deemed rightfully in posses- v. Proctor, 4 Burr. 2208; Chapman v. sion, so far as to entitle him to occupy (if Bluck, 5 Scott, R. 531 ; Waller v. Mor- in the city of l^ew York) till the first of gan, 18 Kentucky, E. 142. 20 LAW OP LANDLORD AND TENANT. [CHAP. I. of his lord, he could not defend himself in a real action, and was liable to be dispossessed at the pleasure of the tenant of the free- hold, by his suifering a common recovery .^ So precarious an inter- est, in the tenant, was soon found to be prejudicial to agriculture ; inasmuch as there was no encouragement for a tenant to improve and cultivate the land in a proper manner, which was, of course, his principal inducement to take a lease. His interest was rendered less insecure by the statute 19 Hen. VI., which gave him a right to recover, when unduly evicted, not only damages for the loss of his possession, 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 circum- stances ; and subsequent enactments have increased its security and permanence. § 28. 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 uncertain 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 eifect 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 premises. The leading provisions of this statute have been very generally adopted in the United States. The Revised Statutes of New York declare, " no estate or interest in lands, other than leases for a term not exceeding one year, shall hereafter be created, granted, assigned, or surrendered, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the party granting, &c., or by his lawful agent, there- unto authorized by writing." And " every contract for leasing for a longer period than one year shall be void, unless the contract, or some note or memorandum thereof expressing the consideration, be in writing, and be subscribed by the party, or his lawfully authorized agent." ^ § 29. In Massachusetts, all estates and interests in land, created 1 Co. liit. 46, a ; 9 Mod. E. 102 ; Sliep. authority to contract, provided the con- Toueh. 210. tract itself is in writing ; hut his author 2 2 R. S. 135, § 8. In some of the ity to make a deed must still be in wri States, the words "authorized by wri- ting. Story on Agency, § 50 ; and see 10 ting," are omitted; in which case it is Paige, R. 124, 205-394; 11 ib. 406. Buficient that the agent hare verbal SEC. II.J AN EXPRESS AGREEMENT. 21 without writing, are declared to be estates at will only ; while 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 a witness. Pennsyl- vania follows the English statute, and allows parol leases, not exceeding three years, without adding any thing as to the reserva- tion of rent, or other consideration for the making of the contract. In the other States, the English statute of frauds is generally fol- lowed ; ^ except in Michigan, Indiana, and Illinois, where the New- York statute has been adopted. § 30. By the English statute of frauds also, every agreement not in writing and signed by the party to be charged therewith, or his authorized agent, is void, that, by its terms, is not to be performed within one year from the making thereof. A verbal agreement to lease lands for such time, must therefore, according to the English authorities, commence from the making of the agreement, and can- not be made to commence from a future day.^ But the Revised Statutes of New York have omitted the expression, within one year from the making thereof, which was held to prohibit the creation of an estate for a year commencing m/wiMro; and the Court of Ap- peals, in that State, now holds, that a parol lease of lands, for the term of one year, to commence at a period subsequent to the day when the contract is made, is valid.® A parol agreement to pay for improvements upon land, on delivery of possession to the landlord, is also held not to be within the statute, and is therefore valid.* It is otherwise, however, if the tenant entered wrongfully upon the land ; for in such case, there would be no consideration to support a promise, either written or parol.^ 1 4 Kent, Com. 95 ; Mass. Rev. St. 408. reference to the time for the tenant to ^ EawKns v. Turner, Ld. Ray. R. 736 ; possess and occupy the premises, and 12 Mod. R. 610 ; 3 Burr. R. 1278 ; 1 does not include any previous or interme- Blaek.-R. 353; 11 East, 142; 1 B. & A. diate time. A lease, therefore, for the 722. term of one year may as well be made to 3 Young V. Dake, 1 Selden, R. 463. commence at a future day, as at the day His Honor Judge McCoun, in delivering of making it. If it should not expire the judgment of the court, is of opinion until two years from the time it was that there is nothing in the common law made, it might still be a lease for only one to prevent the making of an agreement year. This decision overrules the case of for a letting of a year to commence in Lockwood v. Barnes, 3 Hill, R. 138 ; also future, and that the time between the 15 Wend. R. 336. A parol contract, how- making of the lease and its commence- ever, to give a lease of land for a term ment in possession is no part of the term exceeding one year, is void. Anderson v. granted. "When, therefore, our statute Prindle, 23 Wend. R. 616. speaks of a lease for a term not exceeding * Benedict v. Bebee, 11 Johns. R. 145 ; one year, and of a contract for a lease for Lower v. Winters, 7 Cow. R. 263. a period not longer than one year, it has ^ St^m <.. Hardenberg, 5 Johns. R. 22 LAW OF LANDLORD AND TENANT. [CHAP. I. § 31. A grant of the possession of land for permanent use, is an interest within tlie meaning of the statute, whetlier it be to enter upon it at all times without fresh consent, or for the purpose of erecting and keeping in repair a house, 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 author- ity to enter upon the land of another, to do certain acts, wMch are merely of a temporary character, without intending to pass an interest in such land, is founded in personal confidence, and valid though not in writing.^ The conferring of a right, however, to enter upon lands, and erect and maintain a dam as long as there shall be employment for the water-power thus created, is more than a license : it is the transfer of an interest in the land, in the nature of a lease, and must therefore be in writing.^ § 32. Although a parol agreement to grant a lease, may be void under the statute as not reduced to writing, it will be enforced in equity when there is a substantial part performance, though on the part of the plaintiff only;^ and a specific performance will be decreed, although signed by one party only.* If possession is delivered under such an agreement, it will be considered as a part 272. An agreement to occupy lodgings right to remoTe a building which he or at a yearly rent, payable in quarterly por- his under tenant might, before the license tions, when the occupation is to commence which had been given for that purpose at a fiiture day, is an agreement relating should be revoked, have erected upon the to an interest in land, within the meaning premises. The tenant, however, until he of the statute of frauds, and must, there- has notice of such revocation, may safely fore, be in writing. Inman v. Stamp, act upon the license, and having erected 1 Stark, R. 12. the building, the license will be no longer 1 Cook V. Stearns, 11 Mass. R. 533 ; revocable. Dubois v. Kelly, 10 Barb. R. 1 Johns. Ch. R. 131. Miller v. Auburn & 496. Sy. R. R. Co., 6 Hill, 61 ; "Wolfe v. Frost, s Jackson v. Pierce, 2 Johns. R. 221 ; 4 Sandf Ch. 72. The grant of the State HoUis v. Whiting, 1 Vern. R. 151 ; of a franchise for a limited time, after Walker v. Walker, 2 Atk. R. 100 ; 14 S. which it is to revert to the State, is not a & R. 567 ; 5 Watts, 308. A parol lease for lease. Bridge proprietors v. the State of more than a year, but less than three, New Jersey, 1 Zab. R. 884. which, by the statute of Ohio, is required ^ Mumford v. Whitney, 15 Wend. R. to be in writing, will be withdrawn from 380. A mere license is revocable, so long the operation of the statute, and become as it is executory, unless a definite term is vaUd for the term specified, if the lessee fixed for its continuance ; but it becomes takes possession and has paid rent accord- irrevocable when executed. Davis v. ing to the terms of the lease. Grant v. Townsend, 10 Barb. R. 382. A convey- Ramsey, 7 Ohio R. 165. So also in ance by the owner, after a Ucense granted, Pennsylvania, 8 Ser. & Raw. 543 ; quot- the lessee of the premises being in pos- ing Earl of Aylesford's case, 8 Strange, session at the time of the conveyance, R. 783. and not chargeable with notice of it, is * Owen v. Davis, 1 Ves. R. 83 ; Seton not a revocation. But the grantee of v. Slade, 7 Ves. R. 265. See the subject such a conveyance is chargeable, where of the specific performance of an agree- he takes the conveyance with notice of ment treated more at large in section the tenant's right, among which is the three of this chapter. And see § 36, SEC. II.] AN EXPRESS AGREEMENT. 23 performance ; ^ especially if the tenant expends money in building or improving, according to the agreement.^ But acts which are merely introductory, or ancillary to an agreement, will not be con- sidered as a part performance, although attended with expejise.^ And possession must 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 a title distinct from the agreement, take a case out of the statute, and therefore no such possession by a tenant can be deemed a part performance.^ § 33. The acceptance of a trifling earnest, or payment of money on account, though it may make a personal contract good, is not enough to satisfy the statute where the contract concerns lands.^ Even the payment of a considerable sum will not be considered part perform- ance of such a contract.'' And although an agxeement be in part performed, 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 are controverted by the parties, will not deter the court from taking the best means in its power to ascertain the real terms.^ And, if a parol agreement is so far executed as to entitle either of the parties to require a specific execution of it, it will be binding on the repre- sentatives of the other party, in case of his death, to the same extent as he himself was bound by it.^" § 84. The common law required, that every conveyance of land should not only be in writing, but sealed and delivered ; and this provision, with some modification, prevails generally in this country. The statutes of South Carolina require the conveyance of all free- hold estates in land to be by writing, signed, sealed, and delivered. In Virginia and Kentucky the same things are required, as to all estates or interests in land, exceeding a term of five years ; in 1 Moore v. Beasley, 3 Ham. R. 294 ; C. C. 412 ; Cook v. Toombs, 2 Anst. 420 ; Butcher v. Stapely, 1 Vern. R. 363; 2 Cooth i>. Jackson, 16 Ves. E. 12. ib. 452 ; Bowers v. Caton, 4 Ves. R. 91. * Cole v. White, 1 Bro. C. C. 409. 2 Foxcroft V. Lister, 2 Term R. 456 ; " Wills v. Stradling, 3 Ves. R. 373. 2 Freem. 268; 2 Ves. Jr. 243; 3 Burr. « Alsopp v. Patten, 1 Vern. R. 472; 1919. In Poster v. Hall, 3 Ves. 712, the Coles v. Trecothick, 9 Ves. E. 234. court said it had gone too far in taking ' CUnan v. Cook, 1 Sch. & Lef. 22, cases out of the statute ; for a man having 123 ; Butcher v. Butcher, 9 Ves. R. 382. laid out a vast deal of money does not * Poster v. Hale, 3 Ves. R. 712. prove that he is to have a ninety-nine ' Mortimer v. Orchard, 2 Ves. Jr. 243 ; years' lease. The remedy ought to rest 6 Ves. R. 470 ; 3 Bro. C. C. 149. in compensation. ^° ^b.; Shannon v. Bradstreet, 1 Sch. & s Clark v. Wright, 2 Atk. R. 12 ; 1 Bro. Lef. 52. 24 LAW OF LANDLOED AND TENANT. [CHAP. I. Rhode Island and Yermont, as to all estates exceeding a term of one year. In Louisiana, all conyeyances of land are made by writ- ing only, and must be registered in the office of a notary.^ In New York, the English common-law doctrine has been adopted in part, by holding, as we have seen, that a conveyance of every freehold estate must be by deed. In each of the States, therefore, where the English statute has been adopted, leases for life must be by deed ; but when for a term of years, may be either by deed, or by a note in writing, signed by the party or his agent. For this reason, an agreement, not under seal, that the 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 the agreement, and would, therefore, operate as an estate for life, which can only pass by deed.^ § 35. As to what is a sufficient signature to the agreement, re- quired by the statute, it is held to be unnecessary that the note in writing should be contemporaneous with the making of the agree- ment ; it is sufficient if made by the parties at one time and adopted afterwards ; and then any thing under the hand of the party to be charged, amounting to an acknowledgment that he had entered into the agreement, will satisfy the statute. As where a person made a verbal agreement to take a lease for fifteen years, and it was made out and sent to him for his signature ; he returned it, and wrote on the back of the lease as follows : " 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." Lord EUenborough held that this was a clear recognition of an existing contract, sufficient to bind him.^ But the circumstance of a party altering the draft of a con- veyance, and delivering it to the attorney to be engrossed, does not amount to signing it.* Nor is the statute complied with, unless the agreement, though entirely written with the party's own hand, be likewise signed by him, or something equivalent thereto be done ; because the absence of a signature is evidence that the party consid- ers the instrument to be incomplete.^ But if he is in the habit of 1 4 Kent, Com. 443. s Shippey v. Derrison, 5 Esp. N. P. 0. 2 Doe V. Brewer, 8 East, E. 165. By 190 ; Powell v. Dillon, 2 Ball & Beat. 416. the English statute, 8 & 9 Vic. c. 106, all * Hawliins v. Holmes, 1 P. Wms. 770 ; leases, required by law to be in writing, 1 Vern. R. 221. must be made by deed; and the same ^ Charlewood v. Duke of Bedford, 1 rule applies to assignments and surrenders Atk. R. 497 ; Anderson v. Harold, 10 of such teases. Ohio, 399 ; Bailey v. Ogden, 3 Johns. R. 399. SEC. II.J AN EXPRESS AGREEMENT. 25 printing, instead of writing his name, he may be said to sign by his printed as well as by his written name.^ And the name of the party may be put to the instrument by his direction, if in his pres- ence, by the hand of another person.^ So if the agreement itself is not signed, but a letter alluding to, and acknowledging tlie agree- ment is signed, this has been held sufficient for the purposes of the statute.^ The contract should, of course, be signed by both parties, or it may be wholly void for want of mutuality.* § 36. At common law, the place of signing 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 instrument.^ Thus if a man drew up an agree- ment 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 as 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 forms are not to be insisted on.® Upon this principle it was held, that the signing of an agree- ment in the place where a witness usually signs, by one who was acquainted with the contents, was sufficient.^ But the Revised Statutes of New York require that the name of the party shall be siihscrihed or signed below, or at the foot of the memorandum; what, therefore, under the old statute was deemed to be a sufficient signing, is not now a compliance with the statute of that State requiring a subscription.^ It was formerly doubted whether an agreement could be specifically enforced against a defendant who had signed it, when it was not signed by the party seeking perform- ance ; ^ but it seems now to be well understood, that, if the obli- gation is mutual, it may not only be enforced in equity, but may also be the foundation of an action at law.^" 1 Per Ld. Eldon, in 2 Bos. & Pul. 239 ; Miller v. Pelletier, 4 Edw. E. 102 ; citing 2 M. & S. 286, And so if he writes it in 10 Paige, R. 886 ; 26 Wend. B. 341. pencil. Merritt v. Clason, 12 Johns. K. * Stokes v. Moore, 1 Cox, 219 ; Penni- 102 ; 14 ib. 484. nian v. Hartshorn, 13 Mass. R. 87, 1 Esp. 2' Prost u. Deering, 21 Maine, E. 69. 190. See, also, Black v. Gompert, 7 8 Sanderson v. Jackson, 2 B. & P. 238 ; Exch. 862. AUen V. Bennet, 3 Taunt. 170 ; 3 Beav. « Knight v. Crockford, 1 Esp. N. P. C. 469. And the letter may he sent to the 11, 19. plaintiff, or the acknowledgment may be ' Walford v. Beasley, 3 Atk. E. 508 ; contained in a letter sent to a third per- s. o. 1 Ves. R. 6. son. Welford v. Beasley, 8 Atk. 603. ^ pavis & Brooks w. Shields,^6 Wend. And see Dobell v. Hutchinson, 3 Ad. & R. 341. El. 355, ^ Per. Ld. Eedesdale, in Lawrenson v. * Cammeyer v. The United Germ. Butler, 1 Soh. & Lef. 13. Luth. Ch. 2 Sandf. Ch. E. 186, 249 ; » Allen w. Bennet, 3 Taunt. R. 176 ;, 2 26 LAW OF LANDLORD AND TENANT. [CHAP. I. SECTION III. or AN AGREEMENT FOR A LEASE. § 37. It sometimes becomes difficult to distinguish, in the fonn of a written instrument, between language importing an actual lease, and that which amounts to no more than an agreement for one. This distinction is nevertheless important to both parties, for it may happen, that what was intended by the one merely as an agreement for a lease may be construed into a lease, passing an estate in the land, and the other may thereby avoid covenants which worjd have been imposed tipon him, if a regular lease had been executed. While its importance to the lessee appears from the fact, that, on the execution of an actual lease, he acquires an interest, — an interebse termini, — which, upon entry, vests the term in him ; but, by ail agreement only, he will acquire no legal interest in the ic'via or iu the land, nor can he set it up as a defence to an action ot ejectment broxight against him. Such an agreement, however, will operate as a license to enter upon the premises agreed to be demised ; and if the intended landlord 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.^ The difficulty of drawing this distinction has led to so much litigation in England, as to call for an Act of Parlia- ment, providing that no lease in writing of any freehold, copyhold, or leasehold land shall be valid as a lease, unless it be made by deed ; but that any agreement in writing, to let any such land, shall be valid, and take effect as an agreement to execute a lease ; and that the person who may be in possession of land, in pursuance of an agreement to let, may, from payment of rent or other circum- stances, be construed to be a tenant from year to year.^ Ball & Beat. 56; 2 Jac. & Walk. 427; remove to and occupy the premises, Laythrop v. Bryant, 2 Bingh. N. C. 735 ; together with the diflfereuce hetween the s. 0. 3 Scott, E. 238 ; Clason v. Bailey, 14 real value of the lease and the contract J. E. 484 ; McCrea v. Purmort, 16 Wend, price, may be recovered. Ward v Smith 460 ; 13 Mass E. 87. 11 Price, E. 19 ; Driggs v. Dwight. 17 1 Price V. Williams, 1 Mees. & Wels. Wend. E. 71; but not the profits which he 6. On the breach of an agreement to give might have made if he had obtained posses- the plaintiff a lease of the premises, the sion. Giles v. O'Toole ; 4 Barb. E. 261. expenses incurred by him, in preparing to ^ gt^t. 7 & 8 Vict. c. 76, § 4. SEC. III.] OP AN AGREEMENT FOR A LEASE. 27 § 38. As the law stands witli us, the whole question resolves itself into one of construction ; and an instrument is to be con- sidered a lease, or only an agreement for a lease, according to what appears to be the paramount intention of the parties, as such inten- tion may be collected from the whole tenor and effect of the instru- ment.^ The law, it is said, will even do violence to the words, rather than break through the intent 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 as an agreement for one, shows clearly the intention of the parties, notwithstanding any inference which might be drawn from other clauses in the same instrument;^ but the mere use of the word agreement will not, of itself, make an instrument such, if the intention is manifestly otherwise.* § 39. 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, particularly if no future or more formal document appears to be contemplated ; and especially if possession is taken under it.^ But the use of 'such words, however strong, will not constitute 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 instrument containing words of present demise, but in which was inserted an agreement, on the part of the owner, to make alterations and improvements, and by the other party to take a lease, when the premises should be so 1 Goodtittle v. Way, 1 Term K. 735; forth v. Pox, 9 Bing. 590; 3 C. & P. 441 ; Bacon v. Bowdoin, 22 Pick. R. 401 ; Doe v. Groves, 15 East, R. 244 ; Jenkins State V. Page, 1 Spear, R. 408. An v. Eldridge, 3 Story, R. 325. A sealed agreement containing words of bargain instrument not specifying any term, but and sale in prcesenti, does not necessarily purporting to demise and lease from a transfer the title, but may be a mere future day, the lessee to pay taxes for a agreement to convey. Jackson v. Meyers, year, and waive notice to quit, was held to 3 Johns. R. 388; Jackson v. Clark, *. be a lease for years. Barney «. Keith, 4 424 ; Ives v. Ives, 13 ib. 325 ; Burnett v. "Wend. R. 502. An agreement of the Scribner, 16 Barb. R. 621. And a con- purchaser of land, to allow the vendor to tract reserving the right to quit at the remain in possession for a year, and until end of ten years on paying first instal- the former should pay a certain mort- ment, is a sale and not a lease. Moul- gage, which, by its terms, had four years ton V. Norton, 5 Barb. R. 286. to run, was held to be a lease and not a 2 Hallett V. Wylie, 3 Johns. R. 44-383 ; reservation, and that the purchaser might ib. 74r-424: ; 2 Black. 973. pay, or tender the debt, within the year, 3 perring v. Brooke, 1 M. & R. 510 ; and remove the vendor under the 7 Car & P 360. statute. Hunt v. Comstock, 15 Wend. R. 4 John V. Jenkins, 1 Cr. & M. 233; 665. 3 Tyr. 177 ; 14 "Ves. R. 156 ; Weed v. * Jackson v. Moncrief, 5 Wend. R. 26 ; Crocker 13 Gray, R. 219. Tempest u. Rawling, 13 East, R. 18 ; Pen- 5 Averill v. Taylor, 4 Selden, R. 44 ; ner v. Hepburn, 2 Y. & C. 159. Baxter v. Brown, 2 W. Bl. 973; Stam- 28 LAW OP LANDLORD AND TENANT. [CHAP. I. altered and improyed, was held to be only an agreement for a lease.i So a paper containing words of present demise, with an agreement that the lessee shall take possession immediately, and that a lease shall be subsequently executed, operates only as an agree- ment for a lease .^ § 40. Other illustrations of this principle are as follows : 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 amoxmted 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 cotmty court will agree thereto," is only an agree- ment to lease on a precedent condition.* So where the words of an agreement were, that A. shall hold and enjoy, and, in a subse- quent part, the grantor engaged to give him a lease ; the court held, that, although the words shall enjoy might constitute a present demise, yet they were qualified, by the subsequent engagement, into an agreement for a future lease.^ And a written authority from one 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. Wliere an instrument of this description has contained a clause, to the effect that it should be considered bmding imtil a lease could be executed, it has been generally construed to be 1 Jackson dem. Buckley v. Delacroix, Cheslyn, 4 A. & E. 225 ; Chapman v. 2 Wend. E. 433 ; 12 East E. 168 ; Cooley Buck, 4 B. N. C. 187. V. Streetan, 3 D. & E. 622. s 5 xerm E. 163; 12 East, E. 247; 2 Goodtittle v. Way, supra, 3 Taunt. E. Dunk v. Hunter, 5 B. c& A. 322 ; Clayton v. 65. Where the relation of the parties be- Burtenshaw, 5B. & Cr. 41. A man agreed tween the execution of the agreement, to repair a mill for another, for a certain and the execution of the lease, cannot be sum, to be paid when the work was any other than that of landlord and finished, and the latter agreed to secure tenant, it is held to be a present demise, the premises to the former until the price CurUng V. Mills, 46 C. L. & Eq. E. 173; was realized out of the profits. Held to 6 M. & G. 173. Though an agreement be not a lease, but an agreement for a contains a stipulation for a future lease, lease. People v. Gillis, 24 Wend. E. 201. and no precise, day is fixed from which * Buell v. Cook, 4 Conn. E. 238. rent is to commence, stiU if it contains ^ Doe dem. Jackson v. Ashburner, words of present demise, and the party is 5 Term E. 163 ; 3 Dow. & Ey. 522 ; let into possession, it operates as a lease. 2 Barn. & Cr. 273 ; PhiUps v. Hartley 3 Pierson v. Eies, 8 Bing. 178 ; Pearce v. C. & P. 121. ^ Davis V. Thompson, 1 Shep. R. 209. SEC. III.] OP AN AGREEMENT FOR A LEASE. 29 an actual lease. So the words, A. hath and hy these presents doth demise, create a present interest ; and a subsequent agreement, to give a more formal lease, contained in the same instrument, was held to be only in the nature of a covenant for further assurance.^ And 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 building, &c. ; A. to grant a lease as soon as the houses are covered m ; 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, although, when a cer- tain progress was made in the building, a more formal lease was to be executed, in which, perhaps, the premises might be more par- ticularly described, for .the convenience of underletting or assigning; and that the stipulation 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 satisfactory than the present instrument.^ But generally, if there .are words of present demise, without any thing to indicate that the parties con- template a further assurance, it will be considered a lease.^ § 42. Certainty as to the time when the term is to commence, its duration, and the amount of rent to be paid, is usually necessary to make an instrument operate as a present demise ; * while an 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 particular day, it was held to amount to an agTcement only, the court saying there were no words of demise, that the commence- 1 Jackson v. Keisselbrach, 10 Johns, when finished, is to be occupied by the R. 436 ; Barry v. Nugent, 5 Term R. 176 ; grantee at a stipulated rent, accompanied 9 Ad. & El. 644 ; 4 M. & W. 704. by words of present demise, operates as a 2 i?oole V. Bentley, 12 East, R. 168 ; 2 lease. The People, &e. v. Kelsey, 14 Ab. Black. R. 973 ; 6 East, R. 580 ; 8 N. & M. Pr. E. 372. 137 • Doe dem. Walker v. Groves, 15 * Wright v. Treresant, 3 C. & P. 441 ; East, 244 : Pinero v. Judson, 6 Bing. 206. 8 Bing. 178 ; 3 N. & M. 137 ; 5 B. & A. 8 Hallett V. Wylie, 3 Johns. R. 44 ; 322 ; 5 B. & C. 41 ; Clayton v. Burten- Thornton v. Payne, 5 ib. 74 ; Mickie v. shaw, 7 D. & R. 800 ; 5 B. & C. 41 ; 1 Cr. Ex'r of Wood, 5 Rand. R. 571 ; and see & M. 227 ; 3 Tyr. 170. Averill v. Taylor, 8 N. Y. R. 44. An ^ Alderman v. Neate, 4 M. & W. 704 ; agreement to construct a wharf, which, 8 Bing. 178 ; 9 Ad. cSt El. 644. 3* 30 LAW OF LANDLORD AND TENANT. [CHAP. I. ment of the tenancy was left uncertain, and that the words, as to purchasing, showed tliat the letting was to be by a particular instrument, containing such a clause.^ The courts will sometimes, also, look at the contemporaneous acts of the parties, to assist in the construction of ambiguous words in an agreement.^ So, strong circumstances of inconvenience may indicate the intention of the parties to be, that it shall only amount to an agreement ; as that a forfeiture will be incurred;^ or a stipulation, that out of the rent mentioned a proportionate abatement should be made, in respect of certain excepted premises, with a further stipiilation, that the tenant shall hold under all the usual covenants, for it may be dis- puted what are usual coYcnants.* Notwithstanding such a clause, however, an instrument may still be sufficiently certain to become a lease. ^ § 43. Prom a consideration of the cases, we may draw another rule applicable to this subject, that if an instrument, professing to be an agreement for a lease, is in itself a transfer of possession, whether immediate or infuturo, it is a lease, although it contains a stipulation for executing a subsequent lease. But if the words do not import immediate possession, or some act is to be done prior to the entry of the tenant, an inference will arise that the instrument 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 makes no difference whether the words run in the form of a license, a covenant, or an agreement.^ § 44. It is desirable that an agreement for a lease should contain a minute of all the covenants and conditions that are to be entered 1 Dunk V. Hunter, 5 B. & A. 322-1042. make suitable provision, by will or other- An agreement to let a house, for a given wise, that this agreement shall be kept rent, to be paid part in advance, and secu- and performed by his legal representa- rity to be furnished for the residue, the tives : it was held that the agreement term to commence at a future day, is con- for the further term was not a present de- ditioned on payment and security, and, if mise, which would constitute an incum- they are not tendered at the day, the brance upon the estate in the hands of a landlord is at liberty to rescind. Mc- third person, after the first term had been Gaunten u. Wilbur, -1 Cow. K. 257. surrendered by agreement. Weld v. 2 Doe V. Eies, 8 Bmgh. 181 ; 1 M. & Traip, 14 Gray, R. 330. S. 264 ; 4 Bing. N. 0. 196. A lease for » Tenny v. Childs, 2 M. & S. 225. the term of five years reserved to the * Morgan v. Bissell, 3 Taunt.' R. 65; lessor the right to terminate the same by 18 East, R. 18 ; Morgan v. Powell, 8 a six-monthd' notice of his intention to do Scott, N. R. 687, 700. so ; but the lessor covenanted that the , ^ Doe v. Benjamin, 1 Per. & Dav. 440 ■ lessee should have the right to occupy, 9 A. & E. 644 ; 4 M. & Wels! 704. &c., for the further term of five years ^ Wilkinson v. Hall, 82 C.' L. & Eq. E. from the thirtieth day after the decease of 238 ; 3 B. N. C. 508 ; Curling v, Mills' the lessor, and that he, the lessor, would 6 M. & G. 173. ' ' SBC. III.] OP AN AGREEMENT FOR A LEASE. 31 into by either party, in order to avoid disputes as to what covenants the landlord is entitled to claim. Thus, if it is intended that the tenant shall pay taxes or assessments, rebuild the premises in case of fire, or keep them insured, or that he shall not underlet or assign without the landlord's consent, it should be stipulated in the agree- ment, that proper clauses for such objects shall be contained in the lease ; because these things oamiot be insisted upon afterwards, unless they are expressly bargained for. No verbal explanations will be permitted to vary an agreement in writing ; for all nego- tiations between the parties, prior to or contemporaneous with the execution of an instriiment, are merged in it, and cannot be recon- sidered.^ 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, inde- pendent of positive stipulation, and 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 such agreement, it is implied that there shall be usual and proper covenants.^ § 45. What are to be deemed usual covenants will depend upon circumstances ; often upon the custom, or usage in that respect, in the section of the country where the premises are situated ; some- times upon the nature of the property itself; and it seems to bo properly a question of fact for a jury to determine, and not one of law.^ Thus it has been held, that a lessor could not, as a matter 1 Pattison V. Hull, 9 Cow. E. 747; 264, 271; 3 Bro. 632; while in other cases Propert v. Parker, 3 Mylne & K. 280. An it has been considered a proper subject agreement signifies a mutual contract, on for reference and inquiry. Jones v. Jones, consideration, between two or more per- 12Ves. 190; Boardmanu.Mos.tyn, 6 Ves. sons, and, ex vi termini, includes ajl the 471. mutual stipulations of the respective ^ Bennet v. Womack, 3 Car. & P. 96. parties. Broadwell v. Getman, 2 I>en. R. In this case there was a contract for an 87. An agreement to give a conveyance assignment of the lease of a pubUc house, is satisfied by a conveyance without war- which was described as holden at a oer- ranty or covenant. Van Bpps v. The tain net rent, upon usual and common Mayor, &c. of Schenectady, 12 Johns, covenants. The lease contained a coven- E. 486 ; 13 ib. 859 ; Puller v. Hubbard, 6 ant by the tenant, to pay land-tax, sewer's Cow. E. 13. rate, and all other taxes, and a proviso for ^ WilKins V. Pry, 1 Meriv. E. 263 ; 2 re-entry, if any business but that of a Swanst. E. 249. A contract for a lease, victualler should be carried on in the though in one case, in the Exchequer, it house. It was proved that a considerable was held to embrace a covenant not to un- majority of public-house leases contained derlet or assign, — Polkingham v. Croft, such a proviso; and the court held, that 3 Anst. 709, — has repeatedly received a the covenant was a common one in a diflferent construction in the Court of lease reserving a net rent, and that the Chancery ; Church v. Brown, 15 Ves. proviso was also usual and common. 82 LAW OP LANDLOED AND TENANT. [CHAP. I. of right, demand a covenant of the lessee not to assign or underlet without license ■,'^ or not to carry on a particular trade or business on the premises f or to keep them insured, or to pay taxes.^ Nor on the other hand is it usual for a lessor to coyenant to rebuild the demised 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 vmder him, is usual in all cases, and is in fact incidental to every lease. § 46. The mere signmg of an agreement does not, as we have seen, establish the relation of landlord and tenant, although it creates a right of action for damages for a breach of the contract, 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 instrument appears to be necessary to carry the intention of the parties into execution, equity will decree a specific performance of the agreement in that particiilar.^ 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 portion of the terms be omitted or left in doubt, the court will regard the transaction as imperfect, and resting in treaty only.^ As 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, uncertain in itself, refers to another written instrument, or to a plan forming part of the contract, parol evidence is admissible to identify the writing or the plan ; though if such evidence be not clear and satisfactory, specific performance of such an agreement will be refused.^ § 47. In seeking the specific performance of an agreement, the 1 Church V. Brown, 15 Ves. E. 258. " Gordon v. Trevelyan, 1 Pri. 64 ; Ver- 2 Van V. Corp, 3 Myl. & K. 269; ib. lander v. Codd, 1 Turn. & Russ. 352: 1 280-282. Yo. & Col. 82, 441. 3 Bennet v. Womack, 7 Bar. & Cr. ' Lord Ormond v. Anderson, 2 Ball & 627 ; s. 0. 1 Man. & Rj. 644. Beat. 368 ; Clinau v. Cooke, 1 Sch. & 4 Doe dem. Ellis v. Sandham, 1 Term Lef. 22-128. R. 705 ; 3 Swanst. R. 685. » Hodges v. HorsefaU, 1 Russ. & 6 Fenner v. Hepburn, 2 Yo. & Col. N. Mylne, 116 ; 1 Sch. & Lef. 33. C. V. C. 159. SEC. III.] OF AN AGREEMENT FOR A LEASE. 33 plaintiff must not only make it appear that he is endeavoring to enforce a fair and reasonable contract, but must also show that his own conduct, in reference to it, has been fair, and free from suspi- cion ; for if there be a reasonable doubt thrown upon the transac- tion, he will be left to his legal remedy for the non-performance of the contract.^ Thus, where a party acted as if he had abandoned his contract to take a lease, his bill for specific performance was dis- missed.^ Nor will an agreement to grant a lease be executed in fayor of a tenant on evidence of his having been guilty of fraud, or felony ; or on proof of his insolvency or commission of waste ; or that there was a want of good husbandry, whilst holding under an agreement for a lease. ^ § 48. The court will not compel the acceptance of a lease, unless the party seeking the specific performance is able to perform the contract on his part, by granting a secure lease for the term agreed upon ; and the offer of pecuniary compensation, in case of eviction, will not alter the case, because such indemnity cannot extend to the specific subject of the contract, wHch is the possession and occupa- tion of the premises.* But where a man contracts for the lease of an estate, when he is not entitled to part of it, the contract may be enforced by the lessee, as to the 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 pos- ssession of it except by a suit, will not be enforced ; for it is a con- tract for lawsuit, which is not a lawful stibject of contract, and is not, therefore, a valid agreement for a lease.^ § 49. As a general rule also, the specific performance of an agreement will only be ordered when it is in writing, and conforms to the statute in all other respects ; but it may be decreed, although not in writing, where it is fully set forth in the bill and confessed by the answer ; ^ or where it has been partly carried into execu- tion by the performance of such acts as clearly appear to have been done with a view to the agreement being fully performed, or under ^ Flood V. Finlay, 2 Ball & Beat. 16-58; * Fildes v. Hooker, 2 Meri. 424; s. c. Harris v. Kemble, 1 Sim. 111. 3 Madd. 193. 2 Garrett v. The Earl, of Bessborough, ^ O'Rourke v. PerciTal, 2 Ball & Beat. 2 Dru. & Wal. 441. 64. 8 WiUingham v. Joyce, 3 Ves. E. 168 ; ^ Bagley v. Tyrrell, 2 Ball & Beat. Brock V. Hewitt, 3 Ves. R. 253; Buck- 358. land V. Hall, 8 Ves. R. 92 ; 17 *. 313 ; 1 ' Attorney-General v. SitweU, 1 Yo. & Mylne & K. 312; Hill v. Barclay, 18 Ves. Col. R. 583 ; 1 Ves. R. 221. R. 63. 34 LAW OP LANDLOED AND TENANT. [chap. such circumstances as would manifestly operate as a fraud upon the other party unless the agreement should be fully performed.^ And in all cases, a plaintiff is expected to exercise due diligence and activ- ity in enforcing his claims ; for an application of this kind, being addressed to the discretion of the court, wUl not be entertained in favor of a person who has long slept on his rights, or acquiesced in a title and possession adverse to his claim.^ 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 the benefits given him by the contract.^ 1 Ante, §§ 33, 34. Although the sub- ject of a specific performance of contracts is not strictly within the scope of this work, it may not be foreign to our pur- pose to observe incidentally, that, in gen- eral, a specific performance will not be enforced where accident or mistake would render it inequitable, Schmidt v. Living- ston, 3 Edw. E. 213 ; 1 Ves. & B. 524 ; or where the transaction is tainted with fraud, surprise, or misrepresentation, Veeder v. Fonda, 3 Paige, R. 94 ; Taure V. Martin, 7 N. Y. B. 210 ; Best v. Stow, 2 Sandf. Ch. R. 298 ; or may appear to be unreasonable or to work injustice, Story Eq. Jur. § 74, 769; Mathews v. TerwU- liger, 8 Barb. R. 50; Clark «. Rochester B. R. Co., 18 Barb. E. 350. It is also stated in Abbot's N. Y. Dig. 5 vol. p. 63, that a party who seeks a specific per- formance in equity holds the affirmative, and must show, that the legal remedy is inadequate, and that, without a specific performance, injustice or Irreparable injury will be done ; that the contract is fair, just, and reasonable, equal in all its parts, founded on an adequate consideration, and free from fraud, misrepresentation, or sur- prise. Quoting Foubl. Eq. 45-48, 281; 2 Story Eq., title Specific Perf., 6 John Cb. R, 222; 3 Cow. R. 445; Slocura v. Classen, 1 How. Ap. Cas. 705, 751 ; affir. Ct. of Ap. inl848, *. 758. 2 Moore v. Blake, 1 Ball & Beat. 62; 3 Madd. R. 440; 5 Ves. R. 720. 3 Clarke v. Moore, 1 Jo. & La. Tou. 728. If a person has agreed to execute 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 de- manded 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 course, if he thinks proper, prepare the deed, and tender it for execu- tion. Carpenter v. Brown, 6 Barb. R. 149, overruling the cases of Connelly v. Pierce, 7 Wend. R. 129 ; EuUer r. Hub- bard, 6 Cow. 1. But a deed is not com- plete, 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, where it is to be recorded in a county different from that where it was acknowledged. Smith v. Smeltzer, 1 Hilt. R. 287 ; 4 Ab. Pr. R. 469, CHAP. II.J OP THE DIFFERENT SPECIES OF TENANCY. 35 CHAPTEE II. OF THE DIFFEKENT SPECIES OF TENANCY. SECTION I. LEASES FOE LIFE. § 60. We have already noticed a material difference between leases for years" and leases for a life or lives, in that the latter con- fer a freehold ; while the former, without respect to their periods of duration, amount to no more than a mere chattel interest.^ More important distinctions are, that an estate for life cannot be made to commence infuturo, nor can it be created by parol ; while a tenant for life, or his representatives, has a right to the emblements, that is, to such products of the soil as do not mature during his term, and which he may remove after the determination of his tenancy. 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. § 51. An estate for life may be created, either by express limita- tion, or by a grant in general terms. For where a grant is made by tenant in fee to a man, or to a man and his assigns without any limitation in point of time, this will be considered to be an estate for life, and will continue for the life of the grantee only, and not for that of the grantor, or any other person.^ A grant may also be 1 Estates for years, though stiU chattels common law, is modified by 1 N. Y. Eev. real, are, for purposes of substantial justice, St. 748, § 1. Every grant of land, or of sometimes treated with more considera- any interest therein, shall pass all the tion than as mere terms ; and hare been estate or interest of the grantor, without held to give a tenant an interest in land, the use of the words "heirs" or other enabling him to redeem the demised pre- words of inheritance ; unless the intent to mises from a prior lien. AveriU v. Taylor, pass an inferior estate or interest shall ap- 8 N. Y. R., 44. pear by express terms, or by necessary 2 Co. Lit. 42 a. This provision of the implication. 36 LAW OF LANDLOBD AND TENANT. [CHAP. II. 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 for and during their joint lives. If the interest is to continue to the survivor, it is sufficient to grant it generally for their lives, without inserting words of sur- vivorship ; 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 deatli of one. § 52. Where a grant is made, subject to be defeated by a par- ticular event, provided 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 had been in contemplation. As if a grant be made to a man so long as he shall inhabit, or to a woman during 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 granted absolutely.^ And, in a case where the plaintiff agreed to pay the defendant one hundred pounds per annum dur- ing 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 a sale, as was con- tended.^ § 63. Tenants for life may make under-leases, which will possess all the rights and privileges incident to the original estate ; subject, of course, to be defeated by the death of the person upon whose life the first estate depends. And if the original estate determines by the death of the tenant for life, before the day of payment of rent from the under-tenant, the personal representatives of the tenant for life are entitled to recover from the under-tenant the whole or a proportional part of the rent in arrear.^ The under- tenant is also entitled to emblements, and to the possession of the premises so far as it may be necessary to preserve and gather 1 Co. Lit. 42 a; Com. Land. & Ten. 4. Woodward, 2 Wend. R. 487 ; Bloomer v. An estate for life, even if determinable Waldron, 3 Hill, E. 361. when the rents shall have paid a debt to ^ Mickie v. Ex'rs of Wood, 5 Rand. R. the lessee, is a fi-eehold, which cannot be 574 ; Newton v. Wilson, Hen. & Munf. created without deed. People v. Gillis, 470; Maverick v. Gibbs, 3 McCord, R. 24 Wend. R. 201. A lease to a man, 211. his executors, administrators, and assigns ^ 1 N. Y. R. S. 747, § 22 ; 11 Geo. 2, for ever, is a lease for life. Williams v. c. 19. SEC. II.] LEASES FOR TEARS, AND PROM YEAR TO YEAR. 37 the crop.^ But a tenant for life who continues in possession, with- out the consent of the owner, after the determination of the life estate, is no longer a tenant in any sense : he is a mere trespasser ; and an action of ejectment will lie against him, without any previous notice to quit.^ SECTION II. LEASES FOR YEARS, AND PROM YEAR TO YEAR. § 54. Leases may be granted, in express terms, for one or more years, or for any part of a year ; and, in either case, the lessee will be treated as, and is usually called, a tenant for years. The ordi- nary mode of leasing is for a certain specified term of years ; but if no particular period is limited for the duration of a tenancy, it becomes a tenancy from year to year. This species of lease, where no certain time is mentioned, according to the strictness of the ancient law, continued during the pleasure of the parties only, and might have been put an end to at any time, by either party ; the lessee, in such case, being called and in fact being, a tenant at will. But it was early determined, upon principles of justice and sound policy, that estates at will were equally 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 therefore determine 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 period for the payment of rent arrived, determine the estate so as to deprive the landlord of his rent.* § 55. Since the time of the Year Books, however, a general occu- pation has been held to be an occupation from year to year, and such a tenant cannot be turned out of possession without reason- able notice to quit.^ And such a tenancy is not now determin- able, even at the end of the current year, unless a notice to quit 1 Evans v. Briscoe, 4 Har. & Johns. ' Kighly v. Bulkley, 1 Sid. 348. 139. . ' Jackson v. Bryan, 1 Johns. E. 322 2 Livingston v. Tanner, 4 Kern. R. 64. 9 *. 267 ; 8 East 165. 8 Jackson v. Bradt, 2 Caiues, K. 169. 4 38 LAW OP LANDLORD AND TENANT. CHAP. II- has been previously served by the party, intending to dissolve the tenancy, npon the other ; and, therefore, xmless such notice is regu- larly given, a tenancy of this description will run on from year to year, until some event happens, which, in contemplation of law, will destroy it.^ This rule applies to the tenant as well as to the landlord, and in general, therefore, if a man takes possession of premises, he is bound to retain them for the current year ; for until then the proper notice cannot have expired.^ Even if he gives up the premises to an under-tenant, the landlord may still look to him for the rent of that year, unless the landlord accepts the incoming tenant ; for, if he receives rent from the new tenant, he will be deemed to have made his election to accept him as the tenant.^ § 56. A person, also, who holds merely as a tenant at will, or by sufiFerance, on payment of rent, which is accepted as such by the owner, becomes a tenant from year to year ; but without such pay- ment, or an agreement to pay,, and in the absence of any other cir- cumstance denoting the intention of the parties to consider it otherwise, the tenancy at will continues to subsist.* For where three persons entered under a lease for seven years, which was not signed by the lessor, and was therefore invalid under the statute of fraxids, and payments of rent were made, but which were not shown to be with the assent of one of the three ; it was held that, as against her, there was no evidence of a tenancy from year to year, iaasmuch as she had not resided a year on the premises ; the court declaring that, under the original contract, no demise could be created, but that there was a mere tenancy at will ; and that, in order to con- stitute a new tenancy, it must be shown that all the parties agreed to vary it by a new contract, for a tenancy from year to year.^ In all cases, indeed, of occupancy under a parol lease for more than a year, though the lease is void under the statute for the specified term, it will still enure as a tenancy from year to year.^ ^ Rowan v. Lyttle, 11 Wend. E. 616 Jackson v. Salmon, 4 Wend. R. 327 Jackson v. Aldrich, 13 Johns. E. 109 Wright, 22 Vert. R. 88 ; Mann v. Lovejoy, R. & M. 355 ; Doe v. Walter, 7 Term R. 478; 5 Bingh. R. 485; 7 ib. 458; Lesley Eight V. Darby, 1 Term R. 162 ; Clayton v. Randolph, 4 Raw. 128 ; Drake v. New- t;. Blakely, 8 Term R. 3. ton, 3 Zabr. 111. 2 As to tenancies in the city of New ^ Doidge v. Bowers, 2 Mees. & Welsb. Tork, see, post, § 77. 865 ; 1 Wils. E. 175 ; 4 Term E. 680. 8 Den V. Mcintosh, 4 Iredell, 291 ; 8 « Schuyler v. Leggett, 2 Cow. E. 660. Car. & P. 729. A parol lease for four years, though void * Rowan v. Lyttle, supra ; Nichols v. as to the term of years, is good for one Williams, 8 Cow. R. 13 ; Barlow v. Wain- year, if the lessee enters, and the tenancy SEC. II.] LEASES FOE TEAES, AND FEOM YEAE TO YEAE. 39 § 57. A demise, by a tenant from year to year to an under-ten- ant is, in legal contemplation, a tenancy from year to year, dnring the continuance of the original demise to the intermediate landlord.^ But where there was an agreement to become tenant at a certain rent per quarter, and to find security for paying one quarter's rent in ad- vance, as long as the tenancy lasted ; it was held to be a quarterly tenancy, and not one from year to year.^ The result is the same if a party has been put into possession pending a treaty for a purchase or for a lease, or under a lease or an agreement for one which is void.^ And in general, whenever the original entry was lawful, and it sub- sequently becomes unlawful by breaking off the negotiation or otherwise, the tenancy, though strictly at will, is, for all purposes of a notice to quit, a tenancy from year to year,* and entitles the land- lord to sue for rent upon a quantum valebat, although no distress can be made.^ § 58. "Where the landlord suffers the tenant to remain in posses- sion after the expiration of the original tenancy, and receives rent, he thereby establishes a new tenancy from year to year, and the law presumes the holding to be upon the terms of the original demise, subject to the same rent, and to all the covenants contained in the original lease, so far as they are applicable to the new condition of things.* Thus, if there has been in the lease a covenant for par- ticular modes of husbandry, and, after the expiration of the lease, the tenant holds over and pays rent, the landlord may compel him to perform all such covenants, in the same manner as if they were becomes one from year to year. People ' Salisbury v. Hale, 12 Pick. E. 416 ; V. Eickerts, 8 Cow. E. 226 ; 5 T. E. 471 ; Webber v. Shearman, 5 HiU, E. 20; 8 D. 8 T. E. 3, A lease, though void under & E. 35; Laquerenne v. Dougherty, 35 the Statute of Frauds for want of written Penn. E. 45. In Despard v. Walbridge, authority of the agent who executed it, 15 N. Y. Eep. 374, the plaintiff was owner, may be referred to, for the purpose of by assignment from the original lessee, of ascertaining and regulating the rights of the residue of a term of three years, and the parties during the actual existence gave notice to the defendant, who was of the tenancy. Porter v. BleUar, 17 a subtenant holding under the original Barb. E. 149. lessee, and whose term was then expiring, 1 Pike V. Evans, 4 M. & E. 661 ; 9 B. that, in case he should hold over, the & C. 909. plaintiff would consider the premises as 2 Wilkinson v. Hall, 4 Scott, 301 ; 3 taken by him for another year at an in- Bing. N. C. 508. creased annual rent, payable q[uarterly, at 8 Jackson & Ostrander v. Eowan, 9 the same time giving him notice of his Johns. E. 330 ; Den v. McShane, 1 Green, title as assignee of the lessee. The de- K. 95 ; 4 T. E. 680 ; 1 B. & C. 448 ; 2 D. fendant made no reply, but held over and & E. 565. continued to occupy the premises ; and it * Bradley v. Covel, 4 Cow. E. 344 ; was held, that this was a virtual assent to Doe dem. Newby v. Jackson, 1 B. & C. the terms prescribed in the notice, and 448. created a privity of contract between the 5 Hamerton v. Stead, 5 D. & E. 206 ; parties, for the coming year, at the in- 3 B. & C. 478. creased rent. 40 LAW OP LANDLORD AND TENANT. [CHAP. H. still expressly agreed to be continued between them.^ And the tenant's liability will continue on the original lease, notwithstand- ing an undertaking on his part to pay a larger rent. As where he had covenanted to repair mid insure in his lease, and, after the lease had run out, he agreed to pay a larger rent ; the premises ~ being accci dentally burned down, the court held him bound to rebuild, and that the advance of rent made no difference, the terms of the old lease being in fact incorporated with the new contract.^ We have seen that it is not until after the payment and acceptance of rent (the term having expired), that the tenant becomes tenant from year to year ; for, imtil then, a tenant holding over is strictly a tenant at will.^ SECTION III. LEASES AT WILL. § 59. Leases at will may be created by express terms ; or they may arise by implication of law. Formerly all leases for uncertain periods, were held to be tenancies at will merely. 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 more modern times, the courts have evinced a disposition to con- strue tenancies of this description into tenancies from year to year ; ^ and, in fact, the general language of the books now is, that the former species of tenancy camiot arise, without an express agreement to that effect.'' 1 Doe dem. Jordan v. Ward, 1 H. Bl. can quit the premises only after Eivine a E. 94; R. & M. 55; 12 Ad. & El. 476. similar notice to the landlord. At Siy 2 Digby V. Atkinson, 4 Campb. 275 ; 5 time within a week after the expiration of Mees. & Wels. 100. the lease, the tenant may be expelled 8 Bishop V. Howard, 3 D. & R. 293; 2 without notice, or he may leaye in Hke B. & C. 100. In Louisiana, where a lessee manner. Bowles v. Lyon, 6 Rob. La. E. continues in possession for a week after 262. Mossy v. Mead, 1 Louisiana E 299* the expiration of his term, without opposi- * Griffin's Case, 2 Leon. 78. tion from the lessor, the lease will be pre- ^ Doe dem. HuU v. Wood 14 Mees & sumed to continue at the same price, and Wels. 682. ' on the same conditions, but for no particu- « Nichols v. Williams, 8 Cow E 75 • lar period ; and, under the Code art. 2655, 4 Iredell, 291 ; SuUivan v. Enders 3 he will hold by the month, and can only Dana, E. 66 ; 3 Burr. 1609. ' be expelled after fifteen days' notice ; and SEC. m.] LEASES AT WILL. 41 § 60. Notwithstanding this disposition, however, tenancies at will do still subsist ; for a person who holds rent free by permission of the owner, or who enters under an agreement to purchase, or for a lease, but has not paid rent, is strictly a tenant at will.^ So a parol gift of lands will create this species of tenancy .^ And if the -agree- ment be to let the premises so long as both parties choose, reserving a compensation to be paid daily, and not referable to a year, or to any aliquot parts of it, it does not create a holding from year to year, but a mere tenancy at wUl.^ So a man, who enters under a void lease and pays rent, is a tenant at will ; * and where a pai'ty enters into the possession 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 tenant at will, or rather by sufferance, for he may be ejected immediately. But if the landlord subsequently accepts rent from him monthly, or according to the original agreement, a tenancy from month to month is created, commencing from the time of entry .^ And 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 possession without notice.® But a notice to quit will always terminate this tenancy, or turn it into a tenancy from year to year.'' And if no certain term is agreed upon, or the tenant holds over by consent, either express or implied, after the determination of a lease for years, it is held to be evidence of a new contract, without any definite period for its termination ; and, in either case, is construed to be a ten- ancy from year to year.^ § 61. The reservation of a periodical rent is the principal crite- 1 Kegnart v. Porter, 7 Bingh. E. 451 ; to terminate it ; and evidence that thel Doe V. Miller, 5 C. & P. 595; 7 M. & TV. tenant was deficient as a teacher in liter- 1 226 ; Proprietors, &c. v. McTarland, 12 axj and scientific acquirements is compe- ' Mass. 325 ; Gould v. Thompson, 4 Met. tent evidence of the happening of the R. 224. By Gen. Statutes of Massachu- contingency. Ashley v. Warner, 11 Gray, setts, 0. 89, § 2, aU parol leases, whether K. 43. for a certain or uncertain time, and * Dem. «. Feamside, IWils, 176; Doe whether an annual rent he reserved or dem. Martin, 7 Term R. 83 ; ^ Esp. R. not, will have the effect of leases at will, 601 ; 1 Term R. 90. But see, ante, § 57. EUis V. Paige, 1 Pick. R. 43 ; 15 Pick. R. ^ Anderson v. Prindle, 23 Wend. E. 102. 616. 2 Jackson v. Rogers, 1 Johns. Cas. 33 ; ^ Jackson dem. Clinch v. Miller, 7 Cow. Jackson v. Bradt, 2 Gaines, Cas. 169. B. 747 ; Jackson v. Moncrief, 5 Wend. s Richardson v. Langridge, 4 Taunt. R. R. 26. 128. A verbal agreement to let a house ' Bradley v. Covel, 4 Cow. R. 349. SO long as the tenant keeps a good school, ^ Jackson v. Salmon, 4 Wend. R. 327 ; creates a tenancy at will with a conditional Webber v. Shearman, 3 Hill, N. Y. R. limitation, not requiring notice or entry 547 ; Bennock v. Whipple, 3 Pairf. 346. 42 LAW OP LANDLORD AND TENANT. [CHAP. II. rion of .distinction between tenancies from year to year and at will ; and, in the absence of more direct evidence of the actual periods of reservation, the payment and acceptance of rent, at particular times of the year, are equivalent to an actual agreement to pay on those days, and are admissible to prove the nature of the tenancy.'- So an acknowledgment by a tenant of the existence of an arrearage, of half a year's rent, has been held admissible in evidence for the same purpose.^ § 62. This species of tenancy may be determined by either party, at any time, subject, however, to such statutory provisions as we shall presently notice ; but, if the rent is payable quarterly, and the lessor determines his will after the commencement of a new quar- ter, he will lose the rent that may be due for that quarter, and the lessee will be ,entitled to the emblements.^ So if the lessee deter- mines his will before the end of a qiiarter, he must pay the rent of the whole qiiarter m which the tenancy is determined.* It may be terminated either by the express declaration of the parties, or by implication of law. Of this latter description will be, the death of either of the parties ; acts of ownership exercised by the landlord, such as entering and cutting timber, making partition, or taking a distress for rent ; ^ or his alienation of the reversion.^ So if the tenant commits an act of voluntary waste, sells or transfers his interest to another, deserts the premises, or in any other way dis- continues his lawful possession, he puts an end to this tenancy. For he has no certain, indefeasible estate, his relation to the land- lord 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. At common law, neither a tenant at will nor by sufferance 1 Knight V. Bennet, 3 Bing. 361 ; 2 had resumed the possession of the prem- Esp. 718. ises under an agreement which discharged 2 Cox V. Bent, 5 Bing. 185 ; and see, the tenant from further liability for rent. ante, § 58. "Whitney v. Gordon, 1 Cush. E. 266. » Leighton v. Theod, 1 Ld. Ray. 707. ^ Eismg „. Stannard, 17 Mass. 284; As to emhlements, see, post, § 534. Doe dem. Bennett v. Turner, 9 M. & W. * Bowe's Case, Aleyn, 4. If a tenant 226 ; s. c. 9 M. & W. 643. at will, whose rent is payable quarterly, ^ Ball v. Culhmore, 1 Gale, 96 ; 5 Tyr. quit the premises on a quarter-day, with- 753 ; EUis c. Paige, 1 Pick. E. 43. out giving three months' preyious notice ' Philips v. Covert, 7 Johns. R. 1 ; of his intention, he. will be hable, prima. Doak v. Donnelson, 2 Yerger, R. 249; facie, for another quarter's rent ; and, in an Warner v. Page, 4 Vt. R. 291 ; Cooper action to recover therefor, the burden of v. Adams, 6 Cush. R. 87 ; Chandler v. proof win be on him to show that the Thurston, 10 Pick. R. 209; Daniels v. landlord had waived the notice, which Pond, 21 Pick. R. 367. would be a bar to the action, or that he SEC. IV.] A TENANCY AT SUPPEBANCB. 43 was entitled to notice to quit before lie could be ejected, although a demand of possession was always reqiiired. Yet even the words, " Unless you pay what you owe me, I shall take immediate meas- ures to recover possession of the property," addressed to the tenant by the party entitled to the fee, were held to be a sufficient deter- mination of his will, and equivalent to a demand of possession, so as to maintain ejectment.^ And a tenant at will is even held to be a trespasser, by any unreasonable delay to remove, after the estate has been determined.^ But the Eevised Statutes of New York, and the laws of most of the other States, now require a formal notice of thirty days to be given in either case, before a tenant can b&s pro- ceeded against. The case of a purchaser, who is put into posses- sion of the premises under an agreement to sell, also forms an exception tb the rule above stated ; for he cannot be ejected with- out a formal notice to quit.^ But where, in such a case, it was agreed that, if the purchaser did not pay the residue of the pur- chase-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 eject- ment, without either demand of possession or notice to quit.* SECTION IV. A TENANCY AT SUPPERANCE. § 64. A tenancy by sufferance happens when a man comes into possession lawfully, but holds over wrongfully, after the detefminar tion of his interest. He has only a naked possession, stands in no privity to the landlord, cannot maintain an action of trespass against him, and, independent of the statute, is not entitled to notice to quit, nor liable to pay rent. Tor he holds by the laches of the landlord, who may enter and put an end to the tenancy whenever 1 Doe dem. Price v. Price, 9 Bing. E. ^ Eight v. Beard, 13 East, 210. See, 356 ; 2 Moore & Scott, 464 ; Ellis v. Paige, post, §§ 470-472. 1 Pick. R. 47. ^ Doe v. Sayer, 3 Camp. 8 ; Jones v. 2 EUis V. Paige, supra; Eising v. Stan- Chamtierlain, 5 Mees. & Wels. 14. nard, 17 Mass. E. 282; Livingston v. Tanner, 4 Kern. E. 64. 44 LAW OF LANDLOBD AND TENANT. [CHAP. 11. he pleases. But, before entry, the landlord cannot maintain tres- pass against such a tenant, as he might against a stranger ; for, being once in by lawful title, the Mw will suppose the continuance of a lawful possession unless the owner, by some public act, like entry, declares such continuance to be wrongful.^ If, however, he comes into the estate by act of law, and not by an act of the party, he is not a tenant at sufferance, but is considered an intruder, abor tor, or trespasser.^ § 65. If a tenant for years surrenders his lease, and then holds over, he will be either a tenant by sufferance or a disseizor, at the election of the landlord.^ So an under-tenant, who is in possession at the determination of the origuaal lease, and is permitted by the reversioner to hold over, is quasi a tenant at sufferance.* 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 be permitted to continue on the land for a year, the tenancy by sufferance will be turned into a tenancy from year to y^ar.^ But where a tenant holds over on the determiaation of an estate for years, or a person selling land agrees to deliver possession on a par- ticular day, and afterwards refuses and continues in possession, he is, in either case, to be considered a tenant at sufferance.'' 1 Co. Lit. 270 ; Jackson v. Parkhurst, tinue in possession after the determination 5 Johns. E. 128 ; Jackson v. McLeod, 12 of the preceding estate ; nor could the Johns. R. 182. A tenant at sufferance is owner before entry maintain an action not Uahle to the lessor in an action of of trespass against such a tenant. The trespass, before entry, or a notice to quit owner, however, could enter upon such a under the statute. Keay v. Goodwin, 16 tenant and dispossess him by force, and Mass. E. 4 ; 17 ib. 282. reap the crops, and thus determine the 2 Black. Com. 150; Co. Lit. 57, h; 2 tenancy. But these inconveniences have Inst. 134. Any one who continues in been obviated by the statutes of several possession without agi-eement, after the of the States, in favor of this class of ten- termination of a particular estate, is a ants, by requiring notice to quit, in all tenant at sufferance, and, according to the cases where the occupant is not by neces- Mew-York statute, is entitled to a month's sary implication, or by the statute, de- notice in writing before an ejectment can clared to be a trespasser. be brought for his removal. Livingston ^ Pennington v. Morse, Dyer, 62, a. V. Tanner, 12 Barb. E. 481. At common * Simpkin v. Ashurst, 4 Tyr. 781 ; 1 law, the tenant was not entitled to notice Crom. E. & Eos. 261. to quit. He was regarded as holding ' Eowan v. Little, 11 Wend. R. 619. over by wrong, having no estate, but a ^ Doe dem. Hollingsworth v. Stennett, naked possession only, and standing in no 2 Esp. N. P. C. 716. privity to the landlord. Co. Lit. 57, b ; ' Wilde v. ChantiUon, 1 Johns. Cas. 4 Kent, Com. 116; 4 Johns. E. 215. He 123; Hyatt v. Wood, 4 Johns. E. 160; was not liable for rent because it was the HoUis v. Pool, 3 Met. E. 350 ; Hildreth v. foUy of the landlord to suffer him to con- Conant 10 ib. 298. After a sale of mort- SEC. v.] DEMISE OF LODGINGS. 45 SECTION V. , DEMISE OP LODGINGS. § 66. There is also another species of tenancy, called lodgings, which occurs when only part of a tenement is let to another ; and this usually consists of furnished apartments. Being a contract for an interest in lands, it is within the statute of frauds, and must therefore be in writing, in all cases where the statute requires a lease to he in writing.^ Thus, where the plaintiff had taken a house, partly furnished, at a certain rent, and the defendant agreed to send in all other necessary furniture within a reasonable time, it was held that the defendant's agreement to send in the furniture was an inseparable part of a contract for an interest in land, and ought, therefore, to have been in writing.^ But a contract with the keeper of a hotel, or boarding-house, for board and lodging, although it may specify the payment of separate prices for each, and'whether it be by the week, month, or year, creates no relation of landlord and tenant between the parties ; for the lodger acquires no interest in the real estate, the contract being entire, for board and lodging.^ § 67. Lodgers are entitled to all the privileges of tenants ; and, if a man takes lodgings on the first or second floors 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 lodgings ; and, if the landlord deprives a lod- ger of the use of either, an action lies.* He is also, in general, sub- ject to the same liabilities as other tenants ; and is not justified in quitting his apartments without proper notice, even from a fear, however reasonable, that his goods may be seized for the landlord's rent.^ If a house is divided into several apartments, with an outer door to each apartment, and no communication subsists between gaged premises by a mortgagee or his ° Mechelen v. Wallace, 2 Nev. & Per. assigns, pursuant to a power of sale con- 224 ; 7 Ad. & El. 49. tained in the mortgage, the mortgagor, if ^ Wilson v. Martin, 1 Denio, R. 602. he thereafter remains in possession, is a As to the difference between a boarding- tenant at sufferance. Kinsley v. Ames, house and an inn, see, post, § 419, note. 2 Met. R. 29 ; and see 5 Cush. E. 576. * Underwood v. Burrows, 7 Car. & 1 Edge V. Stafford, 1 Crom. & Jer. 391 ; Pay. 26. 1 Stark. 12. * Rickett v. Tullick, 6 Car. & P. 66. 46 LAW OP LANDLOED AND TENANT. [CHAP. II. them, the several apartments are, for certain purposes, to be con- sidered in law as distinct mansion-houses ; but if the owner lives in the hoxise, all the untenanted apartments will be considered as parts of his house. In general, however, the question, what shall be deemed to be the mansion-house of the party, turns upon the fact of there being an outer door or not. Thus, chambers in Inns of Court and in cottages, which have each of them an outer door that opens upon the common staircase, have been held, in cases of bur- glary, to be the houses of the respective occupants. But this privi- lege extends only to the purposes of protection for a man and his family ; a bailiff, therefore, in the execution of mesne process, may break open the door of a lodger, having first gained peaceable entrance at the outer door of the house. ^ 1 Tracey v. Talbot, 6 Mod. R. 214; break the door of a tenant in a tene- 1 Hawk. P. C. 163, § 15 ; 1 Cowp. R. 1. In ment-house in order to attach the property Swain v. Mizner, 8 Gray, R. 195, it was of a third person therein, held that an officer had no right to SBC. I.J THE COMMENCEMENT OP A LEASE. 47 CHAPTEE III. THE DURATION OF A TENANCY. SECTION I. THE COMMENCEMENT OP A LEASE. § 68. At common law, livery of seizin, or an actual manual tra- dition of the land, was necessary to complete every grant of an estate of inheritance, or for life only ; although it was not required upon a lease for years, or other mere chattel interest. This dis- tinction, however, has been abolished in most of the United States, and a simple delivery of the deed substituted in place of it ; from which time, therefore, all grants, whether for life or years, now take effect. In leases for years, indeed, an actual entry is still necessary to vest the estate in the lessee ; for the bare lease gives him, as we have seen, only a right to enter, or an interesse termini. When he enters in pursuance of that right, he is then, and not before, in pos- session of his term, and a complete tenant for years. But, in refer- ence to the obligations of the parties, and regarding the lease as a contract, if the time from which it is to commence does not other- wise appear, it will be understood as commencing from the time the papers are dated ; and, if not dated, then from the time they were delivered. If there are no writings, the tenancy will be considered as commencing from the day the tenant enters into possession, and not with reference to any particular quarter-day .^ § 69. A receipt for rent, up to a particular day, is primd facie evidence of the commencement of a tenancy at or previous to that day. And, if a tenant enters in the middle of a quarter, and after- wards pays rent to the beginning of the succeeding regular quarter, 1 Church V. Oilman, 15 Wend. E. 656; Bard, 4 Johns. R. 230; Kemp v. Derrett, Co. Lit. 46, a ; Jackson dem. Griswold v. 3 Camp. 511. 48 LAW OP LANDLORD AND TENANT. [CHAP. III. from which time he 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 tenancy, and assigns his interest to another, the new tenancy, if recognized by the landlord, will be held to have commenced at the time the original lease commenced, although the assignee came in on a different day.^ Notice to quit on a particular day is no evidence of a holding from that day ; ^ and, when the prem- ises contained in a demise consisted of a dwelling-house and other buildings, 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 manu- facture, to which every thing else in the demise was merely auxil- iary.* § 70. An estate 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, there- fore, unless some certain beginning or event is referred to by which the period of its commencement may be ascertained, it will be void for uncertainty.^ But a lease, to commence or terminate on a con- tingency which must happen, is valid ; for then its duration is made certain.^ Thus, a lease from the day of the lessor's death ^ Doe dem. Holcomb v. Johnson, 6 uary, in each and every year during the Esp. R. 10. said term; and it was held that the ^ Per Ld. Ellenhorough, in Doe dem. term commenced on the first day of Castleton v. Samuel, 5 Esp. N. P. C. 174. April, 1853, and included that day. Deyo 3 Doe V. Foster, 13 East, 405. v. Bleakley, 24 Barb. R. 9. ' Doe dem. Bradiford v. Watkins, 7 ^ 1 Prest. on Est. 201 ; Bae. Abr. East, R. 551 ; Steel v. Mast, 4 B. & C. Leases (L.), 3. An agreement to convey 272 ; 4 B. & A. 588. A lease was dated seventy acres of land, without describing January 25, 1853, to run from the 1st day them or designating the place, is void of April next, for and during and until for uncertainty ; and a clause giving the full end and term of five years, the some clue to the identity of a small part end next ensuing yielding and pay- only, does not help it. RoUin v. Pickett, ing therefor unto the lessor, the yearly 2 Hill, R. 552. rent of four thousand dollars in equal « Goodright v. Richardson, 3 Term R. quarterly payments ; to wit, on the first 462. The day fixed in the lease, on days of April, July, October, and Jan- which the tenant is to have possession of SEC. I.] THE COMMENCEMENT OP A LEASE. 49 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 objec- tion to a term of years commencing as of a day which is past ; and, in that case, the lease takes effect, in point of computation, from that day, but, in point of interest, from the delivery of the instru- ment.^ § 71. As to an impossible or uncertain date, there appears to be a nice distinction taken 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 uncer- tain, — 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 13th March now last past, and it was proved that the deed was not executed until some time after date, 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.^ § 72. Leases may also be of perpetual duration ; and these are usually in form a grant of the land in fee, reserving the payment of an annual rent, instead of a present consideration, and of this class the New- York manor-leases are specimens ; or they may be leases to continue so long as the lessee shall continue to pay the rent, and perform the covenants 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 till the lessor shall elect, on default of the lessee to pay rent and perform the covenants, to consider it forfeited.^ § 73. When an estate for years is made to commmence at a day the premises, is so much of the essence ' Bac. Abr. Leases (L.), 1. of the contract, that, if the lessor refuse * Steels v. Mast, 6 Dow & Ey. 392 ; 4 to give the lessee possession on that day, B. & C. 272. the latter may abandon the contract. ^ Shep. Touch. 272. Spencer v. Burton, 5 Black. (In.) R. 57. " Folts v. Huntley, 7 Wend. R. 210 ; 1 Child V. Bayley, Cro. Jac. 459. Van Rensselaer v. Hays, 19 N. Y. R. 2 Moore v. Hussey, Hob. 18 ; Enys v. 68. Donnithorne, 2 Burr. 1192. 60 Law op landlord and tenant. [chap. m. to coai6, 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 possession 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 hy the agreement for the commencement of the term ; and, being a mere chattel interest, it was never required to be created by feoffinent and livery of seizin.^ But an estate for life, whether it lie in livery or in grant, cannot begin at a day to come, because the freehold may not be placed in abeyance .^ And, since no estate of freehold can commence in future, a lease to commence after the death of the lessor, or after the death of the lessee for life, is not good, unless there be some subsisting estate, which fills the intermediate space.^ If a term of years is granted in posses- sion, and a second lease is 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 interesse termini, and the lessor will consequently be entitled to the rent reserved by the first lease, and may distrain for it as any other reversioner.* SECTION II. THE TERMINATION OF A LEASE. § 74. 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 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 England or the United States, except in the State of New York, in reference to a particular species of lease ; the constitution of that State, which was adopted in 1846, providing that no future lease of lands, for 1 Winter v. Loveday, Com. E. 39. « 1 Prest. on Est. 231 ; Neale v. Lower, 2 1 Prest. on Est. 117 ; 2 Black. Com. PoUexf. 55. 314 ; Singleton v. Bremar, 4 McCord, * Smith v. Day, 2 Mees. & "Wels. 684. 12. 6 Co. Lit. 46, b; 46, a; 9 Mod. R. 101. SEC. II.J THE TERMINATION OP A LEASE. 51 agricultural purposes, shall be valid for a longer period than twelve years. § 75. The continuance of a term of years constitutes an essential part of the contract, and must be ascertained with certainty ; other- wise 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 until a chUd, then unborn, shall be of full age ; or so long as a cert£|.in 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 con- tinue parson of Dale.^ The duration of a lease may, however, be defined, either by an express enumeration of years, or by refer- ence to a certainty ; or it may be reduced to a certainty by matter ex post facto. Thus, if it is intended to grant a term for years, so as 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 a sooner determination on a collateral event. For a similar reason, it cannot be granted to a certain person for sixty years, and, in case he shall die within that term, then to another person for so many of the years as shall be unexpired at the de- cease of the first. But it may be granted to a man for hfe, and a subsequent lease may be granted to another for sixty years, to com- mence after the decease of the first, or to commence immediately and run in computation of time concurrently with the first term ; subject to postponement, as to possession, imtil the decease of the first person.^ A grant 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. 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 existence, 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 1 Bishop of Bath's Case, 6 Co. B. 35. lease for niuety-mne years, if A. and B. 2 Shep. Touch. 274 ; Wright dem. so long live, is determinable by the death Plowden v. Cartwright, 1 Burr. 282 ; s. c. of either A. or B. ; but a lease, if A. or 1 Ken. 529 ; 1 Co. 155, a. B. so long live, lasts till the death of the * Doe V. Edwards, 1 Mees. & Wels. survivor of them. Lord Vaux's Case, 533. Particular care should be observed Cro. Eliz. 269 ; Elliott v. Turner, 2 C. B. in the use of the particles and and or; for ^ 461. 52 LAW OF LANDLOED AND TENANT. [CHAP. III. manor, A. will take a term of the same extent. But when a refer- ence 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 above referred to, where a lease is made for so many years as a man shall continue parson of Dale, this cannot be made certain, for nothing can be less certain than the time of his death or the period of his ceasing to be parson.^ So if a grant be made, by one possessed of a lease for forty years, to B., for so many of the years as shall be unexpired at the time of the grantor's death, the new lease is void ; but it is otherwise if the owner of the term demises the land for a certain number of years to commence after his death.^ And a lease which does not fix the exact period at which the tenancy is to end, may yet be sufficient for a particular time in it which is certain.^ § 77. A term may also be rendered certain by matter ex post facto. Thus it may be granted for so many years as A. B. 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 first year.^ Or if a man makes a lease for years, without saying 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.^ 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 such agreement shall commence ; and the rent under it is payable at the usual quarter-days for the pay- ment of rent in that city, unless otherwise expressed in the agree- ment.'^ If a lease is made for a month or months, calendar months are usually intended.^ But, at common 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.^ 1 Bishop of Bath's case, ante; 6 Cr. ' Bac. Abr. Leases (L.), 3. 34, h ; Co. Lit. 46, b. 'IE. S. 744, § 1. 2 The Rector of Chedington's Case, 1 ' 1 N. Y. R. S. 606, § 4; 1 Hill. Abr. Co. 153, a; T. Eaym. 27. 118, n; 2 Dal. R. 202: 4 Mass. R. 461 ; 3 Gwynne v. Mainstone, 14 C. L. & E. 4 Bibb. R. 105. E. 579 ; 3 C. & P. 302. » 2 Bl. Com. 141 ; 6 T. R. 224 ; Staok- * Goodright v. Richardson, 3 Term E. house v. Halsey, 3 J. C. R. 74 ; Parsons 463. V. Chamberlin, 4 Wend. R. 512 ; 10 ib. 6 Den dem. Jacklin c/. Cartright, 4 393. A distinction has been held be- East, E. 29. tween twelve months and a twelve- SEC. II.] THE TERMINATION OP A LEASE. 53 § 78. It was formerly understood, that a lease which commenced from the day of date, began to operate the day after the date ;i but modern English cases unsettled this rule, and the word/rowi is now- construed to be either exclusive or inclusive, according to the pre- sumed intention of the parties, or the circumstances of the case.^ The American authorities include the day of demise, in computing the time of its continuance ; but this construction is used, not by way of computation, but of passing an interest.^ When there is nothing else to guide the construction, that one is assumed which is most beneficial to him in whose favor the instrument is' made.* But generally, in computing time from or after a certain day, that day is excluded with us, unless it appears that a different compu- tation was intended.^ In New York, a lease from the first day of May in one year, to the first day of May in the succeeding year, was held to be exclusive of the first day ; but the rule was said to be imsettled, and the case appears to have been decided in reference to the usage of Albany, by which a lease commences and terminates at twelve at noon on the first of May.® The general rule, however, month, and the latter has been held to mean a year. 6 Co. R. 61. Calendar months agree with those of the Grego- rian 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. 1 Co. Lit. 46, b. In Hatter v. Aste, 1 Lord Eaym. 84, it was said that different constructions were to be put on demises, ixfym the date of the lease, and Jrom the day of the date ; that a lease from the date in- cluded the day of the date, but that a lease. /rom the day of the date excluded it. ^ Pugh V. Duke of Leeds, Cowp. R. 714; Lester v. Garland, 15 Ves. R. 248; Deyo !>. Blakeley, 24 Barb. E. 9. In com- puting the time fixed by a contract for do- ing an act, when the day for performance faUs on Sunday, it is excluded, and the party has the next day to perform. Sal- ter V. Burt, 20 Wend. R. 205. 8 A lease may be so worded as to run from one date, in point of computation, and from another in point of interest. For instance, I may make a lease, to hold for ten years from the first of January last, and"^ it will begin in interest from the day of making, but in computation from last January; or I may even make a 5^ lease for ten years from the date, but not to commence till the expiration of a lease for five years, now existing on the prem- ises, and it will begin in computation from the date, but in interest from the expira- tion of the outstanding lease. See Enys V, Donnithome, 2 Burr. 1190. * Blake v. Crowningshield, 9 N. Hamp. E. 304; Lysle v. Williams, 15 S. & E. 135 ; Donaldson v. Smith, 1 Ash. 197. 5 Bigelow V. Wilson, 1 Pick. E. 485 ; Arnold v. United States, 9 Cranch, 104 ; Jacobs V. Graham, 1 Black. 892. If time is to be computed from any act done, the day on which the act is done is to be ex- cluded in the computation, whenever such exclusion will prevent an estoppel, or save a forfeiture. Wiggins v. Peters, 1 Met. 127; Ewing v. Bailey, 4 Scam. 420; Windsor v. China, 4 Green, 298 ; Cornell V. Moulton, 3 Denio, 12; Farwell v. Eogers, 4 Cush. 160; Blanchard v. HU- liard, 11 Mass. 85. And see Wilkinson V. Gastone, 9 Q. B. 137. 6 Wilcox V. Wood, 9 Wend. E. 346. The custom at Albany referred to in this case seems to be the established practice throughout the State of New York and elsewhere. A lease, which by its terms is to end on the first day of May, and an as- signment of it which is to run to the first day of May, means that the original ex- pires at twelve o'clock at noon of the first day of May, and the assignment ex- 54 LAW OP LANDLORD AND TENANT. [CHAP. III. in England, is declared to be, that, where a computation of time is to be made /rom an act done, the day when such act is done is to be included.^ § 79. According to the English statutes, a parol demise for more than three years operates as a tenancy at will ; but their courts have decided that such a tenancy, or any other tenancy created without limitation of time (except where there is an express agree- ment to hold at will), is to be considered as a tenancy from year to year ; and that the statute only intended, that a parol agreement for a longer period than is authorized by the statute, should not operate as a term.^ Our decisions are to the same effect ; and in New York, if there be an agreement for more than one year, but not reduced to writing, and the tenant enters into possession of the premises, the agreement itself is void, and he holds possession simply as a tenant from year to year.^ If possession is not taken under such an agreement, it is void altogether ; neither party can have any rights or remedies under it. And if a party enters into possession without an agreement at all, it is a general taking from year to year.* This rule, however, has been held inapplicable to the case of lodgings.^ § 80. Though an agreement may be void under the statute, or the lease may only operate to create a tenancy from year to year, still the tenancy is to be regulated by the agreement, as to the amount of rent to be paid, the time when the tenant is to quit, and in every other respect, except as to its duration.^ Yet if the old rent is merely a ground-rent, and the landlord is entitled to the buildings erected by the tenant, a different rule will prevail as to rent, for the landlord is entitled to the annual value of both land and buildings.^ But unless the rent is declared to be an annual rent, the tenant is not precluded from proving the actual value of pires on the tliirtieth of April at twelve ^ Clayton v. Blakely, 8 Term R. 3. o'clock at night. The People v. Robert- ^ Schuyler v. Leggett, 2 Cow. E. 660 ; son, 39 Barb. E. 9. People v. Eiekert, 8 Cow. E. 226. 1 Glassington v. Eawlins, 3 East, E. * 8 East, E. 165 ; 4 Taunt. 128. 407 ; 4 Nev. & M. 375 ; Doug. E. 463 ; = 3 B. & C. 88 ; 4 D. & E. 693. 3 Term E. 623. In Ashland v. Sutley, « Doe dem. Eigg v. Bell, 5 I'erm E. 9 A. & E. 879, the Court of Queen's Bench 471 ; Patrick v. Balls, Carth. 390 ; Brad- declared the rule, with respect to the ley v. Covell, 4 Cow. E. 350. And see, duration of leases for years, to be, that, ante, § 58. generally speaking, they last during the ' Abeel v. Eadcliffe, 15 Johns. E. 50. whole anniversary of the day from which See this case commented upon and ex- they are granted ; since, otherwise, the plained by His Honor Judge Duer, In his day on which the last quarter's rent is Eeports, vol. ii. p. 448. usually made payable would be subse- quent to the expiration of the lease. SEC. II.] THE TERMINATION OF A LEASE. 55 the premises ; as in the case of an agreement to pay a fixed sum for a certain period less than a year.^ § 81. If the duration is left optional by the terms of the lease, without saying at whose option, — as, for instance, if a lease be made for seven, fourteen, or twenty-one years, — it means at the option of the tenant, who has the right of choosing whether he will ■put an end to the lease at the end of seven years, or continue it for fourteen or twenty-one years.^ And, in all cases of 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 on the principle, also, that every man's grant shall be taken most strongly against himself^ § 82. 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 deter- minable 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 provi- sions 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 expiring before the end of the second year, for the court considered the language of the contract clearly contemplated a term to continue longer than one year.^ Where a lease is made determinable before its regular expiration, at the option of the lessee, on 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 per- formance of the lessee's covenants ; for otherwise the tenant might put an end to the lease, leaving the charges upon the property 1 Evertsen w. Sawyer, 2 "Wend. E. 507. * King v. Argand, Cro. Eliz. 775; 2 Dan V. Spurrier, 3 Bos. & Pul. 399 ; Birch v. Wright, 1 T. E. 380. Goodrightw. Eichardson, 8 TermE. 462; » Doe dem. Clarke v. Smarridge, 9 9 East, 15 ; 4 M. & S. 30. Jurist, 781. 8 Webb V. Dixon, 9 East, 15 ; Folts v. * Doe dem. Chadburn v. Green, 9 Ad. Huntley, 7 Wend. E. 214. & El. 658. 66 LAW OP LANDLORD AND TENANT. [CHAP. lU. impaid, and the premises in a dilapidated state. But, by adopting this precaution, the qualification will amount to a condition prece- dent, and exclude the tenant from the benefit of the provision without a strict compliance with the terms imposed.^ § 83. As a general rule, a deed which will not convey all that is intended, will be construed to convey all that it was in the power of the grantor to convey.^ And our law may be considered as ex- tending the English rule, which held, that if a man has power to lease for ten years, and he leases for twenty, the lease is bad at law, but good in equity for the ten years, operating as an execution of a power.^ So 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, will create an estate for so many years only as are necessary to raise the required sum.* But no man may grant a lease to continue beyond the period at which his own estate is to determine ; therefore a tenant for life cannot make a lease to con- tinue after his death.^ Yet a lease made under a power, may continue, notwithstanding the determination of the estate, by the death of the person by whom the power is to be exercised.^ And, in all such cases, although the demise may be void as a lease for years, it will still operate as a lease at will, or from year to year, and the instrument may be given in evidence, as proof of the amount of rent to be paid, and of the other terms on which the lands are held. 1 Porter u. Shepherd, 6 Term R. 665. * Corhefs Case, 4 Sep. 81, h: 1 P. 2 Law V. Hempstead, [10 Com. E. 23 ; Wms. 509-518. Martjn v. Sterling, 1 Root, R. 210. 6 Robie v. Smith, 21 Maine R. 114. 3 Roe V. Prideaux, 10 East, R. 158; « 2 Rol. Abr. 261, pi. 10; Co. Lit. 219. 1 Burr. 120. CHAP. IV.] THE CONTRACTING PARTIES. 57 CHAPTEE IV. THE CONTEACTING PARTIES. § 84. All persons seized or possessed of lands or tenements may grant leases thereof for any period commensurate with their re- spective interests ; except such only as are under some legal disa- bility, and whom the law suppose's incapable of entering into any contract. The Eevised Statutes of New York declare, that " every citizen of the United States is capable of holding lands within this State, and of taking the same by descent, devise, or purchase." Arid, " every person capable of holding lands (except idiots, per- sons of unsound mind, and infants), seized of or entitled to any estate or interests in lands, may alien such estate or interest at his pleasure, with the effect, and subject to the restrictions and regula- tions provided by law."^ At common law as well as by statute, there is also this further qualification to be observed, that every grant of land is void, if, at the time of its delivery, the land shall be in the actual possession of a person claiming under a title ad- verse to that of the grantor ; although if a. 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 ; without such pos- session, however, he cannot make a valid lease, for a bare right of entry is but a chose in action, and is not assignable.^ But if he has actual possession, though obtained tortiously, — a mere disseizor, — it will enable him to make a lease, which can only be avoided, upon eviction, by one having a paramount title.^ 1 E. S. 719, §§ 8, 10 ; ib. 739, § 147. Duer. E. 452. By the statute of frauds, 2 Isham V. Morrice, Cro. Car. 109. To a parol gift of land in fee creates only a constitute an adverse possession, it must tenancy at will ; and, if the donee makes he under a claim of some specific title, a lease, it is void, and cannot be rendered Crary v. Goodman, 22 N. Y. R. 170. valid hy any subsequent assent of the And where an occupant of land produces donor. Jackson v. Eogers, 1 John. Cas. no written title, but relies solely on pos- 33 ; 1 Durnf. E. 941 ; 7 ib. 85 ; Cowp. session, with an assertion of title, he can 482 ; Dougl. 50 ; Cro. Eliz. 156. retain only so much as he had under ' Bac. Abr. Leases (I.),4; Lee u. Nor- actual improvement, and within a sub- ris, Cro. Eliz. 331 ; Thurston's Case, stantial enclosure. Jackson v. Warford, Owen, E. 16 ; 1 Eep. a (147 a). Posses- 7 Wend. K. 62; 26 Barb. E. 383, 404; 4 sion is the detention or enjoyment of a 58 LAW OP LANDLORD AND TENANT. [OHAP. IV. § 85. Possession is of so much importance to the validity of a lease, that if a disseizee wishes to make a lease of land of which he is disseized, he can only deliver it as an escrow, to take effect after he enters or recovers possession. His deed will not operate before entry, further than to transfer the lessor's right of entry, to take effect after his entry.^ But this rule applies only to the original parties, for a lessee for years, as having an interesse termini, may make a 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 makes a lease of the land descended to him before entry, this is a good lease, for he is seized 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 after a disseizin.^ The possession of a tenant for life, however, is not adverse to that of the remainder-man, and hence the latter may make a valid lease, notwithstanding such pos- session.* § 86. Possession, however, will be considered as following the ownership, unless there is an adverse possession. And, where there has once been an actual seizin, 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 seizin ; but, by force of the statute thing, which a man holds or exercises by ^ piowden, 133-142 ; Co. Lit. 46, b ; himself or by another who keeps or exer- Cro. Jac. 60. cises it in his name, and the enjoyment is * Shep. Touch. 269. See 2 R. S. of necessarily exclusive. Eedfield v. Utica N. Y. 294, § 11 ; Code of Pro. § 84. and Syracuse E. R. Co., 25 Barb. R. 54. * Grout v. Townsend, 2 Hill, N. Y. R. A disseizin is an estate gained by wrong 554. The possession of a tenant in com- and injury ; and therein differs from a dis- mon law, however long continued, is not, if possession, which may he right or wrong, unaccompanied with a claim of entire A mere entry upon another is not a title, adverse to the co-tenants. Smith v. disseizin unless it is accompanied with Burtis, 9 John. E. 174; Thompson i;. expulsion from the freehold ; and a peace- the Mayor and city of New York, 11 N. able entry, upon land apparently vacant, Y. E. 115. But it is otherwise if he furnishes, per se, no presumption of wrong, actually excludes his co-tenant. 24 Smith V. Burtis, 6 John. R. 197; Varick Wend. E. 221, 587; 17 ib. 642; Sherry V. Jackson, 2 Wend. E. 166 ; Co. Lit. 8, v. Frecking, 4 Duer R. 462. b ; 18, b. 6 Posgate v. Herkimer Manuf. Co., 1 Doe V. Watts, 9 East, 19 ; Jennings 9 Barb. E. 287 ; 12 ib. 352. But wliere a V. Bragge, Cro. Eliz. 446-483 ; Co. Lit. grantor, after conveyance, remains in pos- 48, b. The rule that avoids every con- session, it is not as owner, but as tenant to veyance of land which is held adversely the grantee, and nothing but a clear, un- at the time of the conveyance, does not equivocal, and notorious disclaimer of the apply to a lease made by the State ; for latter's title can render the possession ad- there can be no adverse possession as verse. Jackson v. Benton, 1 Wend. E. against the people. The people cannot 341 ; Swart v. Service, 21 ; ib. 36. And be disseized. The People v. The Mayor, see Butler v, Phelps, 17 Wend. E. 642. &c., 28 Barb. E. 240. CBAP. IV.] THE CONTRACTING PARTIES. 59 of uses, the possession was transferred in all cases to the use of the cestui que use, who may now, therefore, if there is no adverse possession, make a lease for years, without actual entry .^ And, if there is an undisputed reversion in the lessor at the time of making a lease, it wUl be a good charge upon the reversion, and take effect in interest, and in possession also, if the reversion happens to be re- duced 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. Although a lessor may have no title to the land he under- takes to demise, or may be a disseizor, 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.^ But as estoppels are not generally favored, and will not be admitted if they 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. 1 Bellingham v. Alsop, Cro. Jac. 52 ; ib. 408 ; Cro. Eliz. 216. To constitute an adrerse possession, the entry of the dis- seizor must have been at the time under claim or color of title. Humbert v. Trin- ity Church, 24 Wend. R. 587; Hoyt v. Dillon, 19 Barb. R. 644. Otherwise it is a mere trespass. Miller v. Piatt, 5 Duer, B. 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 also be continued, uninterrupted, notorious, and exclusive ; and the burden of proof is on the party alleging it to be so. Hilliard on Real Property, vol. i, p. 47. Under the New- York statute 1 E. 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 un- der a title adverse to that of the grantor. And the claim may be oral, if made by an actual occupant. Humbert v. Trinity Church, supra. 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 Frambois v. Jackson, 8 Cow. R. 589 ; Livingston B. Penn. Iron Co. 9 Wend. B. 511. The possession of a mere intruder, making no claim, is in- Bufflcient ; 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, 18 J. B. 406; Jackson v. Frost, 5 Cow. E. 346. Nor will the mere expectation of a grant suffice. Howard v. Howard, 17 Barb. R. 663 ; 24 Wend. E. 461. But it is no ob- jection, that the grant was fraudulently obtained. Bogardus v. Trinity Church, 4 Sandf. Ch. R. 633. Or was without any foundation as matter of right, or unau- thorized. Jackson v. Elston, 12 J. B. 452, and see Bradstreet v. Clarke, 12 Wend. B. 602, 674; 5 Day. B. 181; Clapp V. Bromagham, 9 Cow. E. 530. 2 MitfordK.Fenwick,And. 288; Moor, 284; Cro. Jac. 168; Cro. Eliz. 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 Pa. B. 402. ' Jackson v. Murray, 12 Johns. E. 201 ; Sinclair v. Jackson, 8 Cow. B. 543; 16 Johns. E. liO, 201 ; Cooke v. Brown, 5 Pike R. 693 ; Co. Lit. 47, 227 ; Ld. Raym. 729 ; Webb v. Austin, 8 Scott, N. E. 419 ; s. c. 7 Mann. & Gr. 701 ; Whitton v. Pea- cock, 2 Scott, 630 ; s. c. 2 Bingh. N. C. 411. If a man conveys land which is not his, and he afterwards purchases the land, he is, notwithstanding, 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; 4 Co. 53, a; Cro. Car. 110; 3 P. Wms. 373; Jackson v. BuU 1 John. Cas. 81. 60 LAW OP LANDLORD AND TENANT. [CHAP. IT. 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 que 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 .^ § 88. With respect to leases by estoppel, we may further observe, that an estoppel cannot operate after the estate of the lessor is determined ; for it begins by, and therefore terminates with, the lease .^ But 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 public, deriving his authority from an act of the legislature ; ^ but if it appears, from recitals in a lease, that he had nothing at the time of the demise, and he afterwards purchases the land, it will not enure to the lessee by estoppel.^ He is, however, estopped from contending that he had merely an equitable and not a legal estate when he granted the lease. ^ § 89. On the other hand, a lessee, by accepting a lease, is estopped from disputing the title of his lessor;* though he may show that the title has since expired, or that he has purchased a title which is not inconsistent with that under which he came into possession.^ Nor is he estopped, by a description of the land in a lease, from showing that what was there called meadow, was not, in point of fact, such.^" An assignee is also estopped by the deed which estops his assignor ; ^^ and, by executing an assignment, in 1 Leicester v. Rehoboth, 4 Mass. E. ' Green v. James, 6 Mees. & "Wels. 180 ; ib. 273 ; Jackson v. Hofiman, 9 Cow. 656. E. 271 . Co. Lit. 47, b ; Ventr. 358. « Carpenter v. Thompson, 3 N. Hamp. 2 Brereton v. Evans, Cro. Eliz. 700. 204 ; Wood v. Day, 1 Moore, 389 • 7 s Jackson v. Ayres, 10 Johns. R. 224 ; Taunt. 646. Brudnell v. Roberts, 2 Wils. R. 143; 8 " Jackson v. Rowland, 6 Wend R. Term R. 487 ; 4 ib. 682 ; Cro. Ehz. 700. 666 ; Neave v. Moss, 1 Bingh. 360 : 7 Ad. * Hilman v. Hoie, Carth. 247 ; s. o. & El. 157 ; 2 Nev. & Per. 123. 1 Salk. R. 275. lo Skipwith v. Green, 1 Stra. 610 ; 3 6 Fairtitle v. Gilbert, 2 Term R. 169. Danv. 272 ; 8 Mod. E. 311. ^ Hermitage o. Tomkins, 1 Ld. Ray. " Taylor v. Needham, 2 Taunt. 278: 729. 7 Term R. 488. CHAP. IV.J LEASES BT ESTOPPEL. 61 which the original lease is recited, he is precluded, in an action by the assignor, from calling upon him to prove the lease .^ Nor will an estoppel bar the lessee beyond the duration of the interest de- rived by him under the lease. Therefore, if a man take a lease for years, by deed indented of his own land, it is no conclusion beyond the term, at the end of which the lessor may enter and occupy the land; for, by the determination of the term, the estoppel is also determined.^ And the acceptance of a lease, and the payment of rent, for the use of a wharf, will not, after the expiration of the term, estop the lessee from asserting a right to use it without the consent of the lessor.^ § 90. All estoppels, however, must be reciprocal and mutual, for, as the whole estate is created by estoppel, both parties must be bound, or neither ; if, therefore, a man takes a lease for years of his own land, from an infant or feme covert, it will work no estoppel, because infants or femes covert, by reason of their disability to con- tract, are not estopped, nor shall the lessee be, for the want of mutuality.* This rule, requiring reciprocity in cases of estoppel, necessarily requires that the lease shall be by indenture, and not by deed poll ; for both lessor and lessee must be bound, or neither.^ And, if by indenture, it must be execixted by both parties, for an indenture executed by the one and not by the other is only equiva- lent to a deed poll ; though, for this purpose, a lease executed by the lessor, and a counterpart by the lessee, are considered as one indenture.^ For a similar reason, a stranger can neither be bound by, nor take advantage of an estoppel, the rule being confined to privies in blood or estate.'^ § 91. But an estoppel is not confined wholly to the parties to the lease ; for it is annexed to the estate, runs with the land, and is binding on all persons claiming ujider them. The heir of the re- versioner being privy in blood, and taking the estate subject to the 1 Nash V. Turner, 1 Esp. 217. 6 Co. Lit. 363, b ; Pike v. Eyre, 9 2 4 Co. 54, a; James v. Laudon, Cro. Barn. & Cress. 909; s. c. 4 Man. & Ry. Eliz. 36. 661 ; Wright v. Douglas, 10 Barb. E. 3 Child V. ChappeU, 5 Seld. R. 246. 97. In this case the court held that the de- ^ HiU v. Saunders, 9 Bar. & Cr. 534 ; fendant estabUshed his right to the ease- s. o. 2 Bing. 112; 1 Car. & P. 80; Cord- ment claimed, both by direct grant and well v. Lucas, 2 Mees. & Wels. Ill ; Wil- upon the principle of dedication. son v. Woolfryes, 6 Mau. &, Sel. 341. * The Welland Canal v. Hathaway, 8 ' Jackson v. Brinkerhoff, 3 Johns. C. Wend. R. 9 ; ib. 480 ; Co. Lit. 352 ; Boll- R. 101 ; Berlin v. Norwich, 10 J. R. 229 ; ing V. Mayor, 3 Rand. 563 ; Doe dem. Braihtree v. Hiagham, 17 Mass. R. 432 ; Leeming v. Skinner, 2 N. & P. 123; 4 M. 6 Pick. R. 455; Cro. EUz. 37, 700. &S. 485; 2B. &A. 278. 6 62 LAW OF LANDLORD AND TENANT. [CHAP. IV. 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 bound, unless he claims the land from him who created the estoppel ; for, if he purchase the reversion himself, or if it devolve upon him by descent from another ancestor, he will not be bou.nd.^ Nor will he be bound, unless the estoppel would have operated upon the inheri- tance in the hands of his ancestor ; and, therefore, if tenant for life make a lease for years, and afterwards purchase the reversion and die 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.^ Privies in estate are also bound, when a man makes a lease, by indenture, of pro23erty 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. An estoppel may also be by matter in pais, though not in writing, — as by livery, entry, acceptance of rent, or the like ;S for the rule is general, that where a person assents to an act, and de- rives title under it, he cannot afterwards be permitted to impeach it.^ But when the estoppel is by matter in pais, it is determined by the ceasing of the act which created the estoppel, although it is otherwise of an estoppel by matter of record.^ And in all cases 1 Webb V. Austin, 8 Scott, N. E. 419 ; of conduct which must be prejudicial s. c. 7 Man. & Gr. 701 ; Neal v. Lower, to his interests, unless the defendant be PoUexf 54; Co. Lit. 352, a. cut off from the power of retraction, con- 2 W. Jo. 460; Goodtitle dem. Faulk- stitutes an estoppel in pais. Dezell v ner v. Morse, 3 Term E. 371. Odell, 3 Hill, N. Y. E. 216 ; Eldred v. 3 Freeport's Case, 6 Co. 15, a; Co. Lit. Hazlett, 38 Penn. E. 307. And it exists 47, b; 8 Term E. 487; Carvicli «. Bla- against a party, where it appears, 1st. that grave, 1 Br. & B. 531. he has made an admission which is clearly * Trevivian v. Lawrence, Holt, 282 ; inconsistent with tlie evidence he propo- Webb V. Austin, supra. Although a les- ses to give, or the title or claim wliich he see may maintain an action of covenant proposes to set up ; 2d. that the other against his lessor on a lease by estoppel, party acted on the admission ; and 3d. the same privilege, it is said, does not ex- that he will be injured by aUowing the tend to his assignee. Style v. Hearing, truth of the admission to be disproved. Cro. Jac. 73 ; Awder v. Nokes, Cro. EUz. Plumb v. Cattaraugus Ins. Co 18 N Y E 373-436. 392 ; Martin v. AngeU, 7 Barb. E. 407; 6 5 Springstein v. Schermerhorn, 12 Ad. & EI. 475. It never talses place Johns. E.. 357 ; Co. Lit. 352. where one pai-ty did not intend to mislead, 8 Dezell V. Odell, supra ; Eex v. Stacy, and the other party is not actually mis- 1 Term E. 4. An admission by the de- led. Jewett v. Miller, 10 N. Y. E. 402. fendant, intended to influence the con- ' James v. Landon, Cro. Eliz. 36 700 • duct of the man with whom he is dealing, Co. Lit. 47, b. ' ' and actually leading him into a line SEC. I.J LEASES BY INFANTS. 63 where a party claims to establish his right by estoppel, the instni- ment on which he relies must be clear, precise, and unequiYocal, and not depend upon inference.^ It must also be specially pleaded, and cannot be taken advantage of collaterally, or by inference.^ If, however, the instrument be not under seal, and operates ly ivay of estoppel only, and not as a technical estoppel, it cannot be pleaded, but must be given in evidence imder the proper issue joined in the case.^ SECTION I. LEASES BY INFANTS. § 93. A minor cannot make leases that will bind him when he arrives at full age ;* the rule being now well settled in tliis country, as well as in England, that all contracts (except for necessaries) made by a minor, includuag his deeds and other instruments under seal, are voidable, that is, he may disavow and so annul them, either at or before liis 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. 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 1 Rich V. Hotchkiss, 16 Day, E. 409 ; 344 ; 12 Ver. 28. The rule seems to he Lajoy V. Priman, 3 Miss. 529. universal that all deeds or instruments 2 Lansing v. Montgomery, 2 Johns. K. under seal, executed by an infant, are 382. voidable only, with the single exception of 3 Davis V. Tyler, 18 Johns. E. 490. those which delegate a naked authority, * Eoof V. Stafford, 7 Cow. R. 179 ; 1 which are void. Per Bronson, J. in Bool Nott & McCord, E. 1 ; 1 N. H. E. 74 ; 11 v. Mix, supra. Johns. E. 539. A rent-charge granted by ^ Zouch v. Parsons, 3 Burr. E. 1794 ; an infant is voidable only. Hudson v. "Walmsley v. Lindenberger, 2 Eand. E. Jones 3 Mod. 310. 478 ; 1 Mason, 82 ; Goodsel v. Myers, 3 6 Bool V. Mix, 17 Wend. E. 119; Wend. E. 479; 4 McCord, E. 229, e; Eagle Fire Co. v. Lent, 6 Paige, E. 635 ; Brown v. Caldwell, 10 S. & E. 114. Per Story, J. in 10 Peters, E. 71 ; Whea- ^ Roof v. Stafford, 7 Cow. E. 179 ; 9 ton V. East, 5 Yerger, Tenn. E. 41 ; ib. 626 ; Bac. Abr., tit. Infancy, Bool v. Worcester v. Eaton, 13 Mass. E. 237 ; 1 Mix, supra. N. H. E. 73 ; Phillips v. Green, 5 Monroe, 64 LAW OP LANDLORD AND TENANT. [CHAP. IT. age, as by receiving rent that accrues after that period, or the like, he confirms the lease, and cannot afterwards impeach it.^ § 94. Very slight acts and circumstances 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 confirmation is necessary, but that all the voidable contracts of an infant are binding upon him, unless there be ' an express disaffirmance on his part, on his coming of age.^ The mere execution, however, after he attains his age, of another lease or conveyance of the same property, even to a purchaser for value, is no disaffirmance of an infant's deed.* To render such subsequent conveyance, after he arrives of age, an act of dissent to the prior deed, it must be so inconsistent therewith, that both deeds cannot stand together.^ § 95. None, however, but the infant himself, or his personal representatives, can avoid a lease. Being a personal privilege, intended for his 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 rea- son, mere privies in estate, such as assignees or guardians, cannot avoid an infant's lease. ^ And so little encouragement do the courts 1 Smith V. Low, 1 Atk. E. 489 ; Brown be, 6 Conn. E. 494 ; Worcester v. Eaton, V. CaldweU, 10 Serg. & Eaw. 114 ; Co. 13 Mass. E. 371. Lit. 308, a ; 1 Eol. 730 ; Smith v. Bowin, * Bool v. Mix, supra ; Dominick v. I Mod. E. 25; Warwick v. Bruce, 2 M. & Michael, 4 Sandf. E. 375. In order to S. 205; 4 Leon. 4. avoid the deed of an infant, after he 2 Houser v. Eeynolds, 1 Hayw. 143 ; comes of age, he mnst, before suit Hoyle V. Stowe, 2 Dev. & Batt. 320. In brought, make an euti-y on the land, and England, by statute 9 Geo. 4, c. 14, § 5, it execute a deed to a third person, or do is necessary that the ratification be in some other act of equal notoriety, in dis- wi'iting, signed by the party to be affirmance of the deed. Voorhies v. charged thereby ; but any writing is suffi- Voorhies, 24 Barb. E. 150 ; 17 Wend. E. cieut, wliich, in an adult, would be consid- 119. ered an adoption or ratification of an act ^ The Eagle Eire Co. v. Lent, 6 Paige, done by one acting as an agent. Harris E. 635. Mere acquiescence in a convey- V. Wall, 1 Exch. E. 122 ; 11 Ad. & El. ance, after majority, without any inter- 934. A similar statute exists in Maine. mediate benefit, such as the possession of 8 Zouch V. Parsons, supra ; Holmes v. the premises, or the collection of rent, is Blogg, 8 Taunt. E. 35; Jackson v. Bur- no affirmance of the conveyance. Jack- chin, 14 Johns. E. 124; Curtis v. Patten, son v. Carpenter, 11 J. E. 539. And no II Serg. & Eaw. 305 ; 4 McCord, 241 ; 9 bare recognition, or silent acquiescence. Verm. 365. The rule was stated in a for any time less than the period of statu- Connecticut case, to be that there are tory limitation, wiU amount to a ratifica- tliree ways of affirming the voidable con- tion of a deed. Voorhies v. Voorhies, tracts of an infant, when he amves at full supra ; Jackson v. Burchin, supra. age; 1. By an express ratification; 2. ^ Jackson v. Todd, 6 Johns. E. 25; By acts which reasonably imply an affirm- Eoberts v. Wiggin, 1 N. H. E. 93 ; Hart> ance ; 3. By his omission to disaffirm ness v. Thompson, 6 Johns. E. 160. within a reasonable time. liline v. Bee- ' Hoyle v. Stowe, 2 Dev. & Bat. 323. SEC. n.] BY PERSONS OP UNSOUND MIND. 65 afford to a defence of this description, that when a plea of infancy- is interposed, the hurden of proof rests on the infant alone, even though the issue be upon a ratification of his contract after he came of age.^ § 96. As to an infant lessee, we may olsserve, that, although a lease made to an infant is equally voidable on his part with one made by him, it is always available for the purpose of vesting the estate in him ; but as to his liability for rent, or the performance of other stiptilations usually contained in a lease, he is in the same situation he would be in as in case of any other contract, for he may disaffirm it when he comes of age. As a general rule, he is liable for necessaries ; and, although this is a relative term, depend- ing upon his situation in life, lodging probably comes within this description ; and, therefore, 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 the house, whether it came within the meaning of the term necessaries.^ If, however, after his full age, he continues in posses- sion of lands demised to him during his minority, he thereby affirms the lease and becomes liable for rent ; and he must make his election to avoid the lease, if at all, within a reasonable time after he attains his full age.^ It belongs to a jury to determine what is a reasonable time, under the circumstances of each particu- lar case ; but an acquiescence of four months after majority has been held to preclude an infant from afterwards disaffirming a lease.* SECTION II. BY PERSONS OP UNSOUND MIND. § 97. Idiots and lunatics, being void of understanding, and con- sequently unable to give the deliberate assent necessary to the val- But see Dominick v. Michael, supra. ^ Lowe v. Griffiths, 1 Hodges, 30; 1 ■Whittingham's Case, 8 Co. R. 43; Breck- Scott, 58; Hands v. Slaney, 8 Term K. enridge's Heirs v. Ormsby, 1 J. J. Mar- 578. shall E. 236 ; OUver v. Hondlet, 13 Mass. " Bao. Abr. tit. Infant, p. 611. ». 237 ; Irving v. Crocket, 4 Bibb. R. 437. * Doe v. Smith, 2 Term R. 436 ; 1 2 Greenleaf on Evid. § 862 ; Jeume v. Holmes v. Blogg, 8 Taunt. K. 35 ; s. c. J. Ward, 2 Stark. R. 326. B. Moore, 466. 6* 66 LAW OP LANDLORD AND TENANT. [chap. IV. idity 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 Commentaries on Equity Jurisprudence, lays it down as a general principle, that the contract of any person who is wow compos mentis, — from age, imbe- cility, 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 may become void according to circumstances.* The guardian or com- mittee of a lunatic is generally authorized to execute leases of his property, under the direction of the court making the appointment, but, without the aid of a statutory provision conferring such author- ity upon the court, the committee of a lunatic would have no such power.^ § 98. Mere weakness of mind is not, of itself, a sufficient ground for avoiding any contract, unless some stratagem or fraud is resort- ed to by the person in whose favor it is made ; for, if a man be legally compos mentis, he is the disposer of his own property, and his will stands as a reason for his actions.® Thus, if an illiterate 1 Taulder v. Silk, 3 Campb. 126 ; Seaver v. Phelps, 11 Pick. R. 304 ; 4 Cow. R. 417; Dane v. Kirkwall, 8 C. & P. 679. An idiot is one who is a natural fool, or one a nativitate. A lunatic is one who has become non compos mentis by the visitation of God. 2 Jackson v. King, 4 Cow. E. 207 ; Johnson v. Moore, 1 Littell, Ky. E. 371 ; Owen V. Davis, 1 Ves. E. 82. 8 1 Story, Eq. Jur. § 222. * Wait V. MaxweU, 5 Pick. E. 217; "Webster v. Woodford, 3 Day, R. 90. The lunacy of a mortgagor ^does not abso- lutely avoid the mortgage : it is, at most, voidable at the election of the lunatic or his personal representatives, or those claiming some interest under him in the premises. A lunatic is not absolutely dis- qualified from making a contract : the law will, in certain cases, even raise one by implication (Wentworth v. Tubb, 20 Eq. Ch. R. 174). There is a strong analogy between a lunatic and an infant in relation to their power to contract. Either can oblige liimself for necessaries, and the law provides for each a formal process by which to avoid their agreements. Per Gardiner, J., in Ingraham v. Baldwin, .5 Seld. E. 45. All contracts made by an idiot, hmatic, or habitual drunkard, after the actual finding of an inquisition, are absolutely void. L'Amoreux v. Crosby, 2 Paige, E. 422 ; 4 Mass. E. 147 ; 4 Co. E. 126, b. 6 Knipe v. Palmer, 2 Wils. 130. After a commission to inquire into an alleged case of lunacy has issued, and before in- quisition found, all persons deal with the suspected individual at their peril; and conveyances made by him after that event will be set aside if the person deal- ing with him knew that proceedings had been taken. Griswold v. Miller, 15 Barb. E. 250. There are later decisions also to the effect, that a contract is not vitiated by the unsoundness of mind of one of the con- tracting parties, if this fact is unknown to the other, and no advantage is taken of the lunatic. But the rule applies to cases in which the contract is not merely exe- cutory, but has been executed in whole or in part, so that the parties cannot be restored altogether to their original posi- tion. Molton V. Camron, 2 Exch. 487, s. 0. in Error, 4 Exch. 17; Bevau v. Mc- Donnell, 9 Exch. 309. ^ Dods V. Wiison, Const. R. 448; SEC. II.j ■ BY PERSONS OF UNSOUND MIND. 67 person is induced to sign a deed, by a misrepresentation 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 rep resentation of its contents was made to liim, it will not be avoided merely on the ground of his ignorance.^ Even a person who is deaf and dumb from his birth, having, however, sufficient intellec- tual 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 he knew he was making a conveyance of his estate.^ Yet if, by fraud and misrepresentation, a lease different from the one directed to be prepared be imposed upon a blind man for exe- cution, he may afterwards treat it as a nullity.* Persons deaf, dumb, and blind from their nativity, labor tinder an absolute incapacity.^ § 99. Nor does old age, simply, incapacitate a person from grant- ing a lease. Fraud and imposition would, of course, defeat it ; but the mere circumstance of age is not a sufficient ground from which to presume imposition ; for, as Mr. Justice Buller observed in the case quoted, we have seen the greatest abilities displayed at a greater age than seventy-five.^ So a lease made by a party under duress is not void, but voidable only by him when he recovers his free agency ; but he cannot avoid it under the plea of non est fac- tum, for it is his deed at the time of action brought ; and he can only avoid it by a special plea.'' § 100. 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, Odell V. Buck, 21 "Wend. R. 142 ; 24 ib. ^ Lewis v. Pead, 1 Ves. Jr. 19. 85; Jackson v. King, 4 Cow. R. 207, ' Whelpdale's Case, 6 Co. 119, a; 2 218; Jenkins, &c., Monroe, E. 328; Os- Co. 9, b; 5 B. & Ad. 8. By duress is mond V. Fitzroy, 2 P. Wms. 129 ; s. c. meant that degree of severity, either Eq. Ca. Ab. 186, pi. 8 ; 2 Atk. 251 ; threatened and impending or actually in- Sprague v. Duel, 11 Paige, R. 480. flicted, which is sufficient to overcome the 1 Jackson w. Hayner, 12 Johns. E. mind and will of a person of ordinary 469 ; White v. Small, 2 Ca. in Ch. 105. firmness. Greenl. on Evid. § 301. 2'Hallenbeck v. Dewitt, 2 Johns. R. ' Prentice v. Achorn, 2.Paige, E. 31; 4Q4 Barrett v. Buxton, 2 Aiken, Verm. R. 8 Brower v. Brown, 3 Conn. E. 299 ; 167 ; Pitt v. Smith, 8 Campb. 33 ; Eenton Brower v. Fisher, 4 J. Ch. R. 441 ; Co. v. HoUoway, 1 Stark. 128; Cooke v. Clay- Lit. 42, b ; Shutter's Case, 12 Co. 90, a. worth, 18 Ves. 16 ; In re Ami Lynch, 5 * Shutter's Case, supra; 2 Co. 3, a, Paige, R. 120. "Where a person, for any and 9 a. considerable part of his time, is intoxicated 6 Co. Lit. 42, b; Com. Dig. (Capacity), to such a degree as to be deprived of his J) 4_ ordinary faculties, it is prima facie evi- 68 LAW OP LANDLORD AND TENANT. [CHAP. IV. 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 contrivance or management was 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 all the civil-law writers, now is, that a contract made under such circumstances is void. Under a plea of non est factum, therefore, a defendant will be per- mitted to give in evidence that he was made to sign the deed when he was so drunk that he did not know what he did.^ The decisions of some of our southern courts, however, would make the con- tract of an intoxicated man voidable only ; and not to be avoided, if his assent is afterwards given when he becomes sober.* But it is admitted that the evidence of complete and total drunkenness ought to be clear and satisfactory.^ SECTION III. BY AND TO MARRIED WOMEN. § 101. The free agency and ability of a married woman to make a contract being entirely suspended during marriage, she is inca- pable at common law, without the concurrence of her husband, of making a valid lease of lands, of which they are seized 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 author- izing such acts, that her individual leases could be sustained. The husband has sole dominion over his wife's lands, with a right to lease and take the rents and profits so long as the marriage relation subsists ; and if a living child be born of the marriage, he has the dence that he is incapable of managing ^ Cole v. Eohbins, Bui. N. P. 172; 1 his affairs, or of making a contract. In Stark. 126. the Matter of Tracy, 1 Paige, E. 582. * Eemicker v. Smith, 2 Har. & Johns. 1 Cory V. Cory, 1 Ves. 19 ; Cragg v. E. 423 ; Arnold v. Hickman, 6 Munf. E. Holme, 18 Ves. E. 14 ; 1 Fonb. Eq. 67 ; 1 15 ; Williams v. Inabert, 1 Bailey, E. 343. Mad. Ch. 303 ; Gove v. Gibson, 11 Mees. ^ Adm'r of Lee v. Ware, 1 HiU, S. C. & Wels. 623. E. 316. 2 4 Co. K. 125; 3 P. Wms. 130. SEC. III.] BY AND TO MAEBIED WOMEN. 69 same right dxiring his own life, if he survives her.^ And as to lands of which the wife possesses a chattel interest only, the hus- band has an exclusive and absolute power of disposing of them, as against his wife ; though, on his failing to dispose of them in his lifetime, they will belong to her in preference to his personal repre- sentatives.^ If he dies before her, he cannot dispose of them by his will ; but, if he survives her, they become his own absolute prop- erty.^ 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 a sooner determina- tion by the death of the lessor.* § 102. 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 accept- ance 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 husband, for her con- sent at the commencement of tlie term must appear by deed.' § 103. The common law, also, held every conveyance of a feme covert 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 convey- 1 Jackson v. McConnell, 19 "Wend. R. 6 Dog v. Weller, 7 Term R. 474 175; 2 Boot, R. 369; Co. Lit. 46, b; Jackson v. HoUoway, 7 Johns. B. 81 351, b ; Manby v. Scott, 1 Sid. 120 ; Brown v. Lindsay, 2 HiU, S. C. E. 544 Zouch V. Parsons, 3 Burr. 1805 ; Cro. Jordan v. Wikes, Cro. Jac. 332 ; ib. 417- Eliz. 446 ; 4 Kent, Com. 26. 563. 2 Druce v. Denison, 6 Ves. 394 ; Wild- * Worthington v. Tonng, 6 Oliio R. man v. Wildman, 9 Ves. 177 ; Cro. Eliz. 313 ; 2 Sauud. R. 180. 33-278 ; Hayward v. Hayward, 20 Pick. ' Turney v. Sturges, Dyer, 91 b ; 517 ; Co. Lit. 351, b. Walsal v. Heath, Cro. Eliz. 656 ; Jackson s Jones V. Patterson, 11 Barb. R. 572 ; c. Holloway, supra. Hyde v. Stone, 9 Cow. R. 230 ; Watson v. * We have stated what is understood Bonney, 2 Sandf. R. 405 ; Co. Lit. 300, a, to be the common law of this country on b ; 351, a. The same result foUows a the subject of marital rights with respect divorce a vinculo matrimonii. Legg v. to leases; but these rights have, as we Legg, 8 Mass. E. 99 ; see also Vallance v. shall presently observe, been materially Bausch, 28 Barb. R. 633. modified by statutory provisions in several * Dixon V. Harrison, Vaugh. 46 ; MU- of the States. By these statutes, which ler V. Maynewaring, W. Jo. 354 ; s. c. Cro. have been enacted in New York, Pennsyl- Car. 397 ; Marquat v. Marquat, 12 N. Y. vania, Maine, New Hampshire, Massa- U. 336, chusetts, Connecticut, Ohio, Illiaois, Ken- 70 LAW OP LANDLORD AND TENANT. [CHAP. IT. ance is now abolished by the English statutes, and has never been in force in New York ; ^ nor, as we believe, in any of the other States. The colonial acts of 1771 recite that /ewes covert had been in the habit of conveying land by deed and not by fine, and confirm such conveyances ; but declare, that, for the future, no estate of a feme covert should pass by deed, without her previous private acknowledgment before a magistrate that she executed the deed freely without any fear or compulsion of her husband : since then, the deed of a feme covert, executed according to the statute, has always been sufficient to pass her real estate, or any interest therein, leasehold or otherwise.^ The Revised Statutes of that State re- enacted the former statute, and further declared, that, if a wife resides out of the State, she may unite with her husband, and con- vey any of her real estate situated within this State, as if she were sole, and the acknowledgment, or proof of her execution, may be as if she were sole. § 104. Recent legislation 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 convey any estate or interest therein at her pleasure, the same as if she were unmarried. And her right to execute conveyances or leases of her real estate, with- out the concurrence of her husband, provided they are duly ac- knowledged, is now understood to prevail generally throughout the United States.^ And, with respect to the acknowledgment of the deed, it has been repeatedly held in New York, since the passage tucky, Iowa, Wisconsin, and Alabama, mischiefs and degradation which must the common law, which makes marriage ensue, if husband and wife are no longer a gift of all a woman's personal property one person in any sense, but may bargain to the husband, is repealed ; and a woman together, and buy and sell, and own, and who marries without any ante-nuptial con- pay, with or from, or to each other, pre- tract, retains her property and all her cisely like other.persons." subsequent acquisitions. She can hold i Meriam i>. Harsen, 2 Barb. Ch. K. separate property at law, as she formerly 232. could only in equity, and is liable, so far ^ Grout v. Townsend, 2 Hill, N. T. R. as this goes, on her separate contracts, 454 ; Bool v. Mix, 17 Wend. E. 119 ; whether made before or after marriage. Jackson v. Gilchrist, 15 Johns. R. 89 ; 7 Mr. Parsons, in his admirable elementary Mass. R. 291 ; 4 Verm. R. 414 ; Albany treatise on mercantile law, speaking of Ins. Co. v. Bay, 4 Comst. R. 9. these statutory innovations upon the com- ^ Thatcher v. Omans, 3 Pick. R. 521 ; mon law, says : " It is in truth a very Davey v. Turner, 1 Ball. R. 11 ; Watson difficult question, how far it is well to v. Bailey, 1 Binn. R. 470 ; Fowler v. abrogate the old law, which was of feudal Shearer, 7 Mass. R. 14 ; Gordon v. Hay- origin, and so far inappropriate to our own wood, 2 N. H. R. 402 ; Manchester v. state of society. After sufficient experi- Hough, 5 Mason, R. 67 ; Lithgow v. ment, we shall know better than we know Kavenagh, 9 Mass. R. 172 ; Jackson v. now, how to pay a due regard to the prop- HoUoway, supra ; Laws of New York, erty and the rights of the wife, and yet 1847, p. 528. preserve the marriage relation from the SEC. III.] BY AND TO MAERIED WOMEN. 71 of the law of 1848, that no priTate examination of a married woman is necessary, under any circumstances, where she conveys lands which have been acquired by her subsequently to the passage of the act.^ She cannot, however, either separately or jointly with her husband, execute a valid power of attorney for either purpose ; since the statutes which give her a right to convey by deed do not authorize her to delegate such right to another.^ And, by reason of her general inability to contract, she will not be bound by an agreement to lease, or by any express covenant contained in a lease, either at law or in equity.^ § 105. The same reasons which prevent a married woman from making a lease will also disqualify her from assuming the respon- sibilities of a lessee. A feme sole may, of course, be a lessee ; and, if she afterwards marries, her responsibilities in that character will devolve on her husband, who will be liable, as well after his wife's death as before, to an action for arrears of rent, although the lease may have expired.* But a married woman is not incompetent to take a lease, nor is the express assent of her husband necessary for that purpose, for the estate will vest till he dissents.^ She may, however, avoid such a lease after his decease.^ And, if she occu- pies a house, her husband will be liable for rent accruing during her occupation ; but the landlord can have no personal remedies against her by virtue of such occupation, either separately or jointly with her husband.'' § 106. In a leading English case,^ Lord Eldon declared the rule of law to be, that no act of a wife can render her liable to be sued 1 Blood V. Humphrey, 17 Bart. K. ried women residing out of the State. 660 ; Yale v. Dederer, 18 N. Y. R. 271 ; Laws of 1835, chap. 275. Wiles V. Peck, 26 ih. 42. ^ Jackson v. Vanderheyden, 17 Johns. 2 Sumner v. Conant, 10 Verm. E. 1 ; B. 167 ; Martin v. Dwelly, 6 Wend. E. 1 ; Lane «. McKean, 3 Shepley, E. 304. An 5 Day, 492; 2 HiU, N. Y. E. 554; 3 exception, however, to this general rule Greenl. 50; 3 Blackf. E. 201. now prevails in New Y'ork ; for, by a * Vane v. MinshaU, 1 Lev. 25 ; s. c. T. statute of that State, when any married Eaym. 6 ; 6 Mod. 239. woman residing out of the State shall have ^ Swaine v. Holman, Hob. 204 ; Co. joined or shall join with her husband in Lit. 3, a. executing a power of attorney for the con- ^ Co. Lit. 3, a. veyance of real estate, situated in the ' Eotch v. Miles, 2 Conn. R. 688 . State, the conveyance executed in virtue Edwards v. Davis, 16 Johns. E. 281 of such power shall have the same force Hatchett v. Baddeley, 2 Wm. Bl. 1079 and effect as if executed by such married Marshall v. Button, 8 Term E. 545 woman in her own person; provided, that Fowler v. Shearer, 7 Mass. E. 14; Albany the execution of the power of attorney by Ins. Co. v. Bay, 4 Coms. E. 9. But see such married woman, shall have been contra, Lawrence v. Heister, 3 Har. & first duly proved, or acknowledged, ac- John. 371 ; Sumner v. Conant, supra. cording to the provision of the statutes in ^ Lord St. John o. Lady St. John ; relation to conveyances executed by mar- 11 Ves. R. 529. 72 LAW OP LANDLOED AND TENANT. » [CHAP. IV. as a feme sole ; and this is understood to be the law generally in this country.! And it will make no difference, as to this disability of a married woman, that she is at the time living separate and apart from her husband ; or that she has a separate maintenance secured to her ; or that she has eloped, and is living in a state of adultery ; or even that she is separated from her husband by a de- cree of divorce a mensa et thoro ; for nothing short of a divorce a vinculo matrimonii will restore her ability to contract.^ Yet if her husband is a non-resident alien ; ^ or becomes civilly dead ; is impri- soned for life, or for a term of years, her disability is suspended during such period, and her capacity to contract and assume the responsibilities of a lessee is restored.* § 107. But Lord Mansfield, in a previous case, had introduced a principle of the civil law, that a woman living apart from her husband on a competent maintenance might contract as a /erne sole ;^ which, although it was directly overruled by the above cases, has, to some extent, been adopted in the States of New York, Pennsylvania, and South Carolina. Thus, in New York it was held, that if a wife live apart from her husband on a separate maintenance which he pays, he will not be answerable for necessaries furnished her;^ while, in the latter States, she is allowed to act as a/eme sole trader, and become liable as such. The principle of these latter cases would probably authorize her agreement to pay rent, and assume the responsibilities of a lessee, under similar circumstances ; and there is now no doubt of it, in those States which by statute have enabled a married woman to hold separate property, and contract in relation thereto.^ SECTION IV. BY A TENANT FOE YEARS OR POR LIFE. § 108. Not only has the owner of the soil a right to make a lease, but Tiia tenant, so long as his interest lasts, has also a right to \ L ■'^^"'',F°™^^'^^- -^^bo* "• J^ailey, 6 Pick. K. 89 ; 1 B. & P. '■ Marshall v. Button, su-pra; Lean v. 357. Shute 2 Wm Bl 1079, 1195; Hyde v. * Ih. ; Hatchett v. Baddely, supra. fc%l tu\f Vq T,'' T- ^''' I ^- 6 S"y^'" ''^ Poelnitz, 1 Tern, R. 5. & O. ^91 , b M. & t>. 73 ; Rawhns v. Van- ^ Baker v. Barney, 8 Johns R 92 dyke 3 Esp. 250. ' Burke ;;. Wrinkle, 2 Ser. & R. 189 : s Gregory v. Paul, 15 Mass. R. 31; Newbiggin v. Pillans, 2 Bay E 162- SEC. IV.J BY A TENANT FOR YEARS OR FOR LIFE. 73 und(Jrlet to any person he may think proper, without consiilting the landlord ; for, while his interest in the premises continues, he has the absolute disposition of it, unless some agreement subsists be- tween 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, and perform covenants, according to the terms agreed upon in the first grant ; although he is not liable to the original lessor for the rent reserved on the first lease, since there is no such pri^vity between him and the original lessor, as there is between a lessee and assignee.^ § 109. An under-lease vests only a partial estate in the under- lessee, a reversion being left in the lessor, the duration of which is immaterial, for it may be a year, a day, or an hour. And if rent is reserved in the under-lease, it need not contain a power of dis- tress, for such 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 origi- nal lessee, though they be covenants running with the land, as to pay rent, or repair, cannot affect the under-lessee personally.* The land, however, is not discharged by the under-lease from the claims of the original lessor, who, notwithstanding the under-lease, may proceed to distrain or evict either tenant or under-tenant, if rent be in arrear, or a forfeiture is incurred by his lessee.^ But an assignment transfers the whole interest of the lessee to the assignee ; Laws of Maine, 1844 ; New York & Penn- ate liability, Sexton u. Pleet, 2 Hilt. R. sylvania, 1848 ; Connecticut, 1849 ; New 477 ; and laws of N. Y. of 1862, 345, ch. Hampshire, 1853 ; Massachusetts, 1855 ; 172, § 7 ; ch. 460, § 12. Ohio, 1861; Illinois, 1861; Iowa, Ken- i Jackson «. Harrison, 17 Johns. E. 66. tueky, Wisconsin, 1862. Since the pass- A change of tenants, of an insured build- age of the law in New York enabling a ing, without the consent of the insurance married woman to hold separate property, company, does not vitiate the policy, it has been held that, where she takes a Gates v. The Madison Ins. Co., 1 Selden, lease for a term of years, the term be- B. 469. comes her separate estate ; and, although ^ McEarlan v. Watson, 3 Comst. II . she is not bound personally by the cove- 286 ; Jackson v. Davis, 5 Cow. E. 129. nants in the lease on her part, so as to ^ Co. Lit. 141, b, 142, a ; Curtis v. create a cause of action for the recovery Wheeler, 1 Mood. & Malk. 493. We of money against her, yet the use and have, of course, no reference to leases of occupation of the premises by her, creates land in those States where the right oi a charge upon her separate estate for the distress is abolished, rent, on the ground that the charge grows * Holford v. Hatch, 1 Doug. 183 ; Earl out of the beneficial nature of the contract of Derby «. Taylor, 1 East, 502; Doe to her individually. Taylor v. Glenny, dem. Watt v. Byron, 1 Man. Gr. & Scott, 22 How. Pr. R. 240. As to what creates 623-626. a charge upon the separate estate of a ^ Arnsby v. Woodward, 6 Bar. & Cr. married woman, see Yale v. Dederer, 22 619 ; s. c. 9 D. & E. 536. N.Y.R. 450; and, further, as to her separ- 74 LAW OP LANDLORD AND TENANT. [CHAP. lY. and, if the whole interest is conveyed, the essence of the deed, as an assignment, will not be destroyed by its reserving a rent to the assignor, with a power of re-entry for non-payment ; nor by its assum- ing, by the use of the word demise, or in any other respect, the character of a lease.^ And an assignee is personally liable to the lessor \ipon all covenants which run with the land ; the premi- ses also remaining liable to a distress for rent.^ § 110. A lessee, on granting an under-lease, can only protect himself from the consequences of a breach by the under-lessee, of the covenants contained in the original lease, by taking from him covenants corresponding to those contained in that lease, or a cove- nant of indemnity against such breach.^ And a prudent under- lessee will also stipulate for a clause to protect himself from paying any rent till his lessor produces the superior landlord's receipt for the chief rent ; with a further provision, that, if the chief rent be not paid when due, the under-lessee may pay it to the superior landlord in discharge of his own rent.* § 111. A tenant from year to year cannot make an under-lease, which shall convey any interest exceeding his own in point of du- ration ; and his demise from year to year will operate only during the continuance of the original tenancy of the intermediate land- lord.® But it is said that the interest of an under-lessee cannot be defeated by the mesne lessee's surrendering his estate in the prem- ises to the lessor ; nor can the under-lessee's interest be deter- mined 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 underlets 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 lessor to hold on from month to month, in the absence of any new agreement between the tenant and under-tenant, a similar tenancy will continue be- tween them.* 1 Palmer v. Edwards, 1 Doug. 187, n. ; ^ Pike v. EjTe, 9 Bar. & Cr. 909 ; s. c. 2 Barn. & Aid. 168. 4 M. & R. 661 ; Oxley v. James, 13 Mees. . 2 Hicks V. DowUng, 1 Ld. Eaym. 99 ; & Wels. 209. Parmenter v. Webber, 8 Taunt. 593 ; S. c. ^ Pleasant dem. Haytou v. Benson, 14 2 T. B. Mon. 656. East, 234 ; Co. Litt. 338, b. 8 Penley v. Watts, 7 Mees. & Wels. ' Curtis v. Wheeler, 1 Mood. & Malk. 601 ; Walker v. Hatton, 10 Mees. & Wels. 493 ; Oxley v. James, supra. 249. ^ Pierse v. Sharr, 2 Man. & Ry. 418. * Roe dem. Gregson v. Harrison, 2 Term R. 425. SEC. IV.] BY A TENANT FOR YEARS OR FOR LIFE. 75 § 112. A lease 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 express power, must terminate on the death of the lessor in one case, or of the cestui que 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 power granted to him by the owner of the fee, make leases, for not more than twenty-one years, to commence in possession 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 will and relinquish his estate.^ § 113. As tenants for life cannot, unless by the aid of a statue, 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 determined by his 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 tenants by suffer- ance.* But if the remainder-man has encouraged an expenditure by the lessee on improvements, in confidence of his continuing ten- ant ; or has suffered him to rebuild, and does not, by his answer, deny that he had notice of the lessee's proceedings, he. will be pre- cluded from controverting the lease.^ A subsequent acceptance of rent, with an acknowledgment of a tenancy, may, however, amount to a new demise by the remainder-man, the lessee being a mere tenant at sufferance in the interval.^ But, where the remainder- 1 Ex parte Smyth, 1 Swanst. 355 ; that it will be executed by making leases Symons v. Symons, 6 Madd. 207 ; Simp- for not more than twenty-one years ; son V. Butcher, 1 Doug. 50; Doe dem. especially where such execution would Potter V. Archer, 1 B. & P. 531 ; 3 Madd. render the life estate worthless. Eoot v, R. 375 ; Co. Lit. 47, b. Stuyvesant, 18 Wend. E. 257, 315. 2 1 R. S. 733, § 87. This power is * Moss v. Gallimore, Doug. 283 ; Cro. not assignable as a separate interest, but Eliz. 156, 676 ; Birch v. Wright, 1 Term is annexed to the estate, and wiU pass, E. 382. unless specially excepted, by a convey- * Co. Lit. 47, b ; Cro. Car. 398 ; ance of such estate. If so excepted, it is Vaugh. 80, 81 ; MiUer v. Maynewaring, extinguished. It may also be released by W. Jo. 354 ; s. c. Cro. Car. 397. the tenant to any person entitled to an ex- ^ Stiles v. Cowper, 3 Atk. E. 692 ; pectant estate in the lands, and will be Jackson v. Cator, 5 Ves. E. 688 ; Dan v. thereby extinguished. lb., §§ 88, 89. A Spurrier, 7 Ves. E. 23L; 12 *. 78-85. power giren to a devisee for life, to lease ^ Doe dem. Martin v. Watts, 2 Term for a life or lives, or for a term exceeding E. 83 ; s. c. 2 Esp. 501 ; Doe dem. twenty -one years, is wholly void ; and Tucker v. Morse, 1 Bar. & Ad. 365. cannot be sustained on the supposition 76 LAW OP LANDLOBD AND TENANT. [CHAP. IV. 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 rever- sioner ; and, after the death of the tenant for life, it is taken to be the lease of the remainder-man or reversioner, 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 it, was void on the death of the tenant for life ; and that a subse- quent execution of it by the reversioner did not make it good.^ SECTION V. BY JOINT TENANTS AND TENANTS IN COMMON. § 114. The general rule, with respect to property held by joint tenants or by tenants in common, is, that neither can make a trans- fer of any thing 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 convey the entirety.^ If one joint tenant makes a lease of his 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 so one joint tenant may make a lease to commence after his death, and his co-tenant, if he survives, will be bound by it.* It may here be observed, that the rules applicable to partner- ship 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.^ 1 Treport's Case, 6 Co. 14, b; 2 Prest. * Cro. EUz. 287; Cro. Jao. 91; s. c. Com. 141. Moore, 776 ; Cro. Jac. 25 ; Co. Lit. 163. 2 Ludford v. Barber, 1 Term R. 86. ^ Coles v. Coles, 15 John. R. 159 ; 3 Anderson v. Tompkins, 1 Brock. Cir. 9 Ves. Jr. 500 ; 3 Br. Cli. 199. There E. 456-463 ; Massie v. Long, 2 Ham. R. may, howerer, be a partnership in the use 287; Putnam v. Wise, 1 Hill E. 234. of land, for farming or mining, where the Heirs at law take as tenants in common, law - merchant wUl apply and govern to 1 N. Y. R. S. 753, § 17. Devisees in their the same extent as in ordinary mercantile own right take as tenants in common, un- transactions. But, in buying and selling less otherwise declared. Executors or the land itself, on the joint account of ti-ustees take as joint tenants, ib. 727, § 44. several, the land retains the character of Otherwise of legatees, Putnam J). Putnam, real estate, and each associate contracts 4 Bradf. R. 388. for himself. Patterson v. Brewster, 4 SEC. v.] BY JOINT TENANTS AND TENANTS IN COMMON. 77 § 115. 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 iii a lease, it amounts to several leases of their several interests.^ One joint tenant, or tenant in common, may make a lease of his part to his companion ; and this gives him a right of taking the whole profits, when before he had but a right to the moiety thereof; he may contract with his companion for that pur- pose 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, each must luring a separate action.^ If, however, tenants in common make several demises of their undivided shares, either by distinct 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 covenanters, must join, although the covenant be with them, and each and every of them.^ If the cause of action be separate and distinct, tenants in common must sue severally, though the covenant be joint in terms ; but tlie several interest 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. Where tenants in common concur in granting a lease, each of them usually demises, accordmg to his respective estate and Edws. E. 352. To what extent there = Powis v. Smith, 5 B. & A. 850. may be a partnership for buying and sell- Where one tenant in common receives ing real estate merely, see Sage v. Sher- the rents and profits, although it may he man, 2 N. Y. II. 417. To constitute real that the others have an equitable lien on estate partnership property, it must not his undivided portion ' of the premises only be purchased with the funds of the therefor, yet, upon his death, they are firm, but must be used for partnership primarily chargeable upon his personal purposes. Cox v. McBurney, 2 Sandf R. estate. Hannan v. Osborn, 4 Paige, R. 561 ; and see Otis v. SiU, 8 Barb. R. 102; 336. Anderson v. Lemon, 8 N. Y. R. 236. * Powis v. Smith, 5 Bar. & Aid. 851 ; 1 2 Rol. Abr. 64; Shep. Touch. 268, s. c. 1 Dow. & Ry. 490. Tenants in com- n. 3. mon may maintain a joint action for rent ^ Cro. Jac. 83-611 ; Kray v. Goodwin, due, under a sealed lease, of the joint 16 Mass. R. 1. If a tenant in common estate, all the covenants in which are with hires of his co-tenant, and for a term occu- them jointly ; although, by an agreement pies exclusively, he is not bound, at the annexed to the lease, and made part there- expiration of the term, to abandon posses- of, it is stipulated that half of the rent sion, nor to make partition and occupy shall be paid to each. Wall v. Hinds, 4 only one half, even though his co-tenant Gray 4, 256. has given him notice to quit: it is suffl- ^ Klingsby's Case, 5 Co. 18, b; With- cient if he offers possession of half, and ers v. Bircham, 3 B. & C. 254; s. c. 5 does no act to prevent his co-tenant from Dow. & Ry. 106. occupying with him. Muinford v. Brown, ^ Servante v. James, 10 Bar. & Cr. 410 ; 1 Wend. R. 52. s. c. 5 Man. & Ry. 299. 7* 78 LAW OF LANDLORD AND TENANT. [CHAP. IV. 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. 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 rent to the lessors simply, which wiU not prevent their taking it as tenants in common, the rent following the reversion, and a covenant for payment with them ; in which case, they may join in an action of covenant or sue separately in debt, at their option. § 117. Mercantile law has, as we have already observed, some- what modified this doctrine, when applied to copartnership inter- ests. By the strict rules of the common law, one partner could not bind another by any instrument under seal, unless he had a pre- vious 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.^ And 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 authority, or a subsequent parol adoption of the act.^ Wliile the Superior Court of the city of New York have enlarged the rule still farther, and hold that one partner may execute, in the name of the firm, any instrument under seal which is necessary in the usual course of its business, and that it will be binding upon the firm, provided the partner has authority for that purpose; and that such authority need not be under seal, nor even in writmg, nor specially communicated for the specific purpose ; but may be inferred from the copartnership itself, or from such subsequent con- duct of the copartner who did not join, as implies his assent to the act.* 1 TurbeviUe v. Ryan, 1 Humphrey, E. Withers, 1 Penn. R. 285 : 9 Wend. R. 113; 7D. &E. 207. 439. 2 Mills V. Barber, 4 Day, E. 428 ; ^ Skinner v. Dayton, 19 Johns. R. 515. Gerard v. Basse, 1 Dal. R. 119 ; Hart v. * Gram v. Seton, 1 Hall, R. 262. SEC. VI.] BY MORTGAGOE AND MORTGAGEE. 79 SECTION VI. BT MORTGAGOR AND MORTGAGEE. § 118. It may haiDpen that the lessor, at the time of making a lease, has no such interest in the premises as to entitle him to con- tract absolutely for the enjoyment of it. Thus mortgagors, after default in payment of the mortgage-money, having mere equitable interests in land, have strictly no estate which can be recognized in a court of law ; for at common law, a lease, created by a mort- gagor 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 mort- gagee.^ In this respect, they are in the same situation as strangers, who have no interest, although they may be in possession ; such leases, however, are held good as between the parties, by virtue of the contract.^ As against all persons, except the mortgagee and those claiming under him, the mortgagor is still considered owner of the land so long as he remains in possession, with the power of leasing or conveying it, subject to the incumbrance.^ But a mort- gagee, although in possession, cannot make a lease that will bind the mortgagor when he comes in to redeem.* § 119. A tenant under a lease made prior to a mortgage cannot be dispossessed by the mortgagee, unless by virtue of a proviso for re-entry, on non-payment of rent, or upon 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 mortgagee should give the les- see notice of the mortgage, and require payment of the rent to him- self; and at common law he is entitled as well to rent which has fallen due since the mortgage was made, and remains impaid to the 1 Webb V. Eussell, 3 Term K. 401 ; down to the period when the purchaser Keith V. Swan, 11 Mass. R. 216 ; Eoe v. under the decree of sale becomes entitled Lowe, 1 H. Bl. R. 444. to possession ; and this right accrues upon 2 Thome v. Bruton, 1 Keb. R. 24. the production to the occupant of the 2 Willington v. Gale, 7 Mass. K. 138 ; premises of the master's or slierifif's deed. Collins V. Torry, 7 Johns. E. 278 ; Blaney Clason v. Gorly, 6 Sandf. R. 447. V. Bearce, 2 Greenl. R. 132. As between * Hungerford v. Clay, 9 Mod. R. 1. a mortgagor and mortgagee, or a pur- ^ Moss v. Gallimore, 1 Doug. 279; chaser under a foreclosure of the mort- Rogers v. Humplireys, 4 Ad. & El. 299 ; gage, the owner of the equity of redemption s. c. 1 Har. & Wol. 625. is entitled to the rents which become due 80 LAW OP LANDLORD AND TENANT. [CHAP. IV. mortgagor, as to rent accruing due after notice ; yet, until notice, the lessee is justified in paying rent to the mortgagor.^ § 120. The rights of a tenant, under a lease executed after a mortgage, stand upon different ground. A mortgagor in possession, according to English law, is regarded as a tenant at will to the mortgagee ; who, being the legal owner, is entitled at law to the immediate possession, and to tlie 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, consequently, has no power of making leases that will bind such a mortgagee ; and, when he collects rent, he is only to be considered as receivuig it, in order to pay the interest wliich accrues on the mortgage, by an implied authority from the mort- gagee, until he determines his will. Hence, tenants under leases made subsequent to a mortgage may strictly be treated as trespass- ers by the mortgagee, and ejected without notice.^ By giving notice to sucla a tenant to pay rent to him, a mortgagee does not make him his tenant ; no such result will be produced, unless an attorn- ment by the tenant, or something equivalent to it, takes place, for the express purpose of creating a new tenancy between the tenant and the mortgagee.* And if he accepts such person as his tenant, he will, after such acceptance, only become tenant from year to year to the mortgagor, although he may be in possession under a lease for years from the mortgagor.^ § 121. The common-law doctrine on this subject, according to Mr. Chancellor Kent, prevails very extensively in the United States ; ^ and this distinguished author also repudiates the idea of the existence of any relationship of landlord and tenant, at will or otherwise, between a mortgagor and mortgagee. There is nothing, certainly, in the nature of a contract for the payment of rent between them ; nor is the mortgagor or his lessee entitled to emble- 1 Pope V. Briggs, 9 Bar. & Cr. 245 ; Keeeh v. Hall, 1 Doug. 21 ; 5 Nev. & M. s. 0. 4 Man. & Ey. 193. To the extent of 611 ; .4 Ad. & El. 299. the doctrine stated in the text, this case * iEvans v. Elliott, 1 Per. & Dav. 256 ; of Pope V. Briggs does not appear to be 9 Ad. & El. 342 ; 4 Man. & Ky. 193. overruled by Partington v. Woodcock, 6 ^ Doe dem. Hughes v. Bucknell 8 Car. Ad. & El. 690; s. o. 5 Nev. & Man. 672; & P. 566. and Evans v. EUiott, 9 Ad. & El. 342 ; ^ Rockwell v. Bradley, 2 Conn. R. 1 ; s. c. 1 Per. & Dav. 256. Blaney v. Beam, 2 Greenl. 132 ; Erskine 2 Doe V. Maisey, 8 B. & C. 767 ; 5 v. Townsend, 2 Mass. R. 493 ; 16 *. 39 ; Bing. 421 ; 3 Man. & Ry. 109 ; Cro. Jac. Simpson v. Ammons, 1 Binney, 176 ; 659. McCall v. Lennox, 9 S. & R. 302. But 3 Jackson v. EuUer, 4 Johns. R. 414 ; see Jackson v. Green, 4 Johns. K. 186. SEC. TI.] BY MORTGAGOK AND MOETGAGEB. 81 ments, as other tenants at will are ; nor is it necessary to serve him with notice to quit before an ejectment suit can be maintained against him.^ Neither can a mortgagee distrain upon such a ten- ant, or sue him for rent, until after he has actually attorned to the mortgagee.^ And, although a tenant is justified in paying rent to a mortgagee after notice, the mortgagee can only enforce such pay- ment in an action of ejectment, and for mesne profits, unless by virtue of some statute.^ § 122. It is to be understood, however, that an attornment is necessary only where the lands are mortgaged at the time of the creation of the lease ; for, in this case, the mortgagee is entitled to the rents, as assignee of the reversion, and by force of the statute. All that is necessary for him to do is, to give the tenant notice to pay rent to him, in order to prevent such tenant from paying them over to the mortgagor. But if, after the mortgage, the mortgagor makes a lease under such circumstances that he cannot be consid- ered the agent of the mortgagee in doing so, the mortgagee can only collect the rent after a voluntary attornment of the tenant to him ; and his merely giving notice to pay rent will not constitute a tenancy between them, so as to enable the mortgagee to enforce the collection of the rent.* § 123. In the State of New York, the Revised Statutes have abolished the action of ejectment by a mortgagee, thereby compel- ling him to rely upon a special contract for the possession, if he wishes it, denying his right to the rents and profits of the estate so long as the land is a sufficient security for his debt, and turning him over to the courts of equity for a foreclosure and sale as his only remedy. The mortgagee is only entitled to have a receiver of the rents and profits of the mortgaged premises, after it satisfacto- rily appears that the property is not of sufficient value to satisfy the mortgage debt and costs, and the mortgagor or other person, who is personally liable for the debt, is irresponsible, or unable to pay the expected deficiency. And where the defendant, in a suit to foreclose the mortgage, is in possession by his tenant, who is not a 1 4 Kent, Com. 149 ; Doe dem. Eoby reserves a right to remain in possession V. Maisey, 8 B. & C. 767 ; 3 M. & R. 109 ; until Ipreacli of condition, and liolds over, Patridge v. Bell, 5 B. & A. 604 ; Christo- the. law implies no assumpsit to pay rent pher V. Sparke, 2 Jac. & Walker, 234. to the mortgagee during the time of 2 Rogers v. Humphreys, 4 Ad. & El. holding over and previous to the mortga- 299. gee's entry. Mayo v. Shattuck, 14 Pick. 8 Pope V. Biggs, 9 B. & C. 245. E. 525. Where a mortgagor of leasehold premises * Evans v. Elliott, 9 Ad. & El. 342. 82 LAW OF LANDLORD AND TENANT. [CHAP. IT. paj-ty to the suit, the possession of the tenant will not be disturbed by the appointment of a receiver of rents ; but he may be ordered to attorn to the receiver and pay rent to him.^ § 124. In Massachusetts, also, it is held that a mortgagor, so long as he remains in possession, or until actual entry by the mort- gagee, 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 as may accrue between the time of the commencement of the action to foreclose, and the time of taking possession upon execution.^ So, if a person demise an estate for a term of years, reserving rent, and afterwards mortgage the same estate to the les- see in fee, and the mortgagee refuses to pay rent, the rent is sup- pended until the condition is performed or the estate redeemed. During the suspension, the lessee will be accountable for the profits, as mortgagee, towards the discharge of the interest and principal of the debt. If he voluntarily pays the rent, he vsdll 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 the estate, redeem a mortgage, covering the prem- ises} given by the lessor, prior to the lease ; and it makes no differ- ence, if the leasehold premises consist of but a part of the lands covered by the mortgage.^ ^ Sea Ins. Co. v. Stebbins, 8 Paige, R. mortgagee who took possession before 565; Sliotwell v. Smith, 3 Edw. R. 588. foreclosure was required to account for Tlie owner of the equity of redemption is the rents and profits received, or for a fair at law entitled to the rents and profits of cash rent. Van Buren v. Olmstead, 5 the mortgaged premises until the pur- Paige, R. 9. chaser under the decree of foreclosure * Mayo v. Fletcher, 14 Pick. 525. becomes entitled to the possession of the And in a case arising in Massachusetts, premises. If the accruing rent becomes where the rent was payable in advance, payable between the day of sale and the and the mortgagee took possession, after time when the purchaser will be entitled condition broken, as he had a right to do to possession by the terms of the decree by the statutes of that Commonwealth, and the practice of the court, such rent upon the first day of the quarter in which belongs to the owner of the equity of re- the rent was payable, the court held, that, demption, and not to the purchaser at the inasmuch as the tenant had the whole of master's sale. But if the proceeds of th? day to make the payment in advance, sale are insuflScient, or are probably insuf- and the mortgagee entered on that day ficient, to pay the amount due on the and ousted him, that he had a suflScient . mortgage, and the mortgagor or other excuse for not paying the rent to the person who is personally liable for such mortgagor. Smith u. Shepard, 15 Pick, deficiency is insolvent, the plaintiff is, at R. 147. any time, entitled to a receiver to collect * Newell v. "Wright, 3 Mass. R. 138. the rent, and have it applied to the pay- ^ Averill v. Taylor, 4 Selden, E. 44. ment of the deficiency. Astor v. Turner, Upon the redemption, the redeeming party 11 Paige, R. 436; HoweU v. Ripley, 10 has a right to an assignment of the Paige, R. 43. mortgage redeemed ; and, if it be recorded, 2 Boston Bank v. Reed, 8 Pick. 459 ; a right to require the mortgagee to ac- Gibson v. Parley, 16 Mass. R. 280. A knowledge the assignment. SEC. VII.] BY CORPORATIONS. 83 § 125. From the foregoing observations, it is obvious that a per- manen-t lease of lands under mortgage can only be secured by the concurrence of both the mortgagor and mortgagee, the former to demise and lease, the latter to ratify and confirm. Such a lease operates during the continuance of the mortgage as the demise of the one and the confirmation of the other ; but, after the mortgage is paid off, as the demise of the latter and confirmation of the former.^ Where both concur in the grant, the covenants on the lessee's part should be entered into with the mortgagee, with a view to their running with the land. If entered into with the mort- gagor, they are merely covenants in gross, and of no value to an assignee of the mortgage.^ A mortgagor cannot enforce a 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 com- pel the mortgagor to pay off the mortgage, to give effect to the lease.^ SECTION VII. BY CORPORATIONS. § 126. Every corporation aggregate* has, unless specially re- strained 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, 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, provided they be 1 Doe dem. Barney v. Adams, 2 Cromp. Bronson, C. J., in The People v. The As- & Jer. 232 ; s. c. 2 Tyrwh. 289. sessors, &c., 1 HiU, E. 620. 2 Webb V. Russell, 3 Term R. 393 ; ib. ^ People v. Utica Ins. Co. 15 Johns. R. 679 ; In Er. 1 H. Bl. 562. 383 ; McCarty v. Orphan Asylum, 9 Cow. " Costigan v. Hastier, 2 Scho. & Lef. R. 437 ; The Mayor, &c. v. Lowten, 1 160. Ves. & Beav. 226-240. This common-law * A corporation aggregate is a col- right has been restricted in England since lection of individuals united in one the time of Elizabeth, as to religious cor- body, under such a grant of privileges porations ; and such restraining acts have as secures a succession of members with- been generally followed in this country, out changing the identity of the body. In the State of New York, it is well im- and constitutes the members, for the time derstood that no religious corporation can being, one artificial person, or legal be- sell in fee any of its real estate without an ing, capable of transacting some kind of order of the Supreme Court ; but they are business, like a natural person. Per expressly authorized by statute to demise. 84 ■ LAW OP LANDLORD AND TENANT. [CHAP. lY. 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 in the name will not avoid its grant, when the true name is necessarily to be collected from the instru- ment, or is shown by proper averments ; ^ and the same principles are applicable to the granting of a term for years, as of the fee.^ § 127. A corporation at common law could do no act, except by writing, under its corporate seal ; but this doctrine has been greatly relaxed by recent decisions in England,* and is now entirely repu- diated in the United States. The Supreme Court of the United States, in common Avith the State courts, hold, that whenever a cor- poration aggregate is acting vrithin the scope of the legitimate objects of its institution, all parol contracts made by its authorized agents, are binding upon it;^ and that a bank, or other commer- cial corporation, may bind itself, 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 foot- ing with natural persons. They may contract under seal, but are no otherwise obliged to do so than are individuals. Like these, they are subject to the rules established by law, and cannot take or grant certain interests in land, otherwise than by deed, when similar in- terests can only be so taken or granted by individuals. Corpora- lease, and improve the same for the use ^ Angell & Ames on Corp. 60 ; 13' of the congregation. This limitation of Johns. R. 38; 6 S. & R. 12; 5 Halst. E. the corporate power to sell, is confined to 322 ; 3 Pick. R. 232. It should be noted religious corporations ; hut all others can here that a mere community of indiyid- huy and sell at pleasure, except so far as uals, not incorporated, cannot take real they may be specially restricted by their estate in succession, and, therefore, under charters. 2 Kent, 281. a grant to three persons named, for ihem- 1 Reynolds v. Com.'s of Stark Co. selves and their associates, being a settlement 5 Ham. (Ohio), R. 205; Co. Lit. 44, a. of friends at, Sf-c, to have and to hold as And see Curtis v. Leavitt, 15 N. Y. R. 9, tenants in common for themselves and 62, 219, 262. their associates, the estate rests only in 2 That the misnomer of a corporation, the three persons named. Jackson v. Sis- whether grantor or grantee, does not viti- son, 2 Johns. Cas. 821; Co. Lit. 3, a; ate the grant, provided the identity of the Jackson v. Cory, 8 Johns. E. 385 ; Horn- corporation with that intended by the beck v. Westbrook, 9 John. R. 73. parties to the instrument appears ; see * London Water Works v. Bailey, 4 N. Y. Institution for the Blind v. How's Bingh. E. 283. Executors, 10 N. Y. E. 84 ; First Parish in ^ Bank of Columbia v. Patterson, 7 Sutton V. Cole, 3 Pick. E. 236 ; Minot v. Cranch, E. 299 ; 22 Wend. E- 348 ; 4 HiU, Curtis, 7 Mass. E. 444 ; Chancellor, &c. 263. of Oxford, 10 Co. E. 59. The name of « Pleckner v. The United States Bank, the corporation need not be idem syllabis 8 Wheat. R. 838 ; Mott v. Hicks, 1 Cow. a«( tierJis : it is suflScient that it be iaem re R. 618; 4 S. & R. 16; 12 Johns. E. et sensu. The Mayor, &c. of Lynn, 10 Co. 227. E.124. SEC. VII.] BY CORPORATIONS. 85 tions, therefore, may now make parol leases, in the same manner, and under the same restrictions, that natural persons may.^ § 128. The board of directors are, for all business purposes, the corporation ; and they may authorize a committee, or an officer, to lease, or otherwise dispose of, its real estate ; and that power implies an authority to affix the corporate seal, if necessary or proper.^ The Revised Statutes of New York, relating to the general powers of corporations, provide, that when the corporate powers of any cor- poration are directed by its charter to be exercised by any par- ticular body or number of persons, if it be not otherwise provided in the charter, a majority of such body or persons shall be a suffi- cient number to form a board for the transaction of business ; and every decision of a majority of the persons duly assembled as a board, shall be valid as a corporate act.^ It may be almost un- necessary 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 corporate 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. Although a corporation may execute parol leases without the use of the corporate seal, its seal is still necessary, as we have observed, in all cases where a seal would be required if the instru- ment were to be executed by an individual. But the corporate seal, when affixed to a contract or conveyance, does not render the instrument a corporate act, ujiless it is affixed by an officer or agent 1 Per Marshall, C. J. ; Bank of tJnited declared that the president and one-third States V. Dandridge, 12 Wheat. E. 105 ; 9 of the directors should constitute a quo- ib. 738 ; Garvey v. Colcock, 1 N. & Mc- rum for the transaction of business, and Cord, 231. Lay corporations, by the laws that all business might be transacted by of New York, are restricted from grant- committees, without the presence of the ing or accepting leases, except so far as board, it was held that the president the purposes of the corporation shall alone had no power to act. Dawes v. require, or their charter may authorize. North River Ins. Co., 7 Cow. R. 462. 1 R. S. 599. Religious incorporations also ^ i jj. y. R. S. 600, § 6. "Where two are only authorized to make leases for the trustees, being a corporation, signed their use of the society or other pious uses, names separately to a lease, and affixed Act 5 April, 1613, sess. 36, ch. 60, § 4. the corporate seal separately to each of 2 Burrill v. Nahant Bank, 2 Metcalf, R. their names, it was held to be well exe- 163; Decker v. Freeman, 3 Greenl. R. cuted. Jackson v. Walsh, 3 Johns. R. 338. A corporation can only act in the 226. mode prescribed by the law creating it. ^ Longlsl. E. E. v. Marquand, 6 N. Y. Beatty v. Marine Ins. Co., 2 John. E. 109 ; Leg. Obs. 160 ; and see 19 N. Y. R. 207. 2 Cranch. R. 166. And where a charter 86 LAW OP LANDLOKD AND TENANT. [CHAP. IT. duly authorized to execute the instrument, or acting in pursuance of a vote of the board of directors of the company.^ In order to authenticate the instrument, it will be necessary to prove the cor- porate seal in the same manner as the seal of an individual ; for the common seal is not evidence of its own authenticity, but must be proved to be such, not indeed by one who saw it afiixed, 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 fade evi- dence that it was affixed by the authority of the corporation ; pro- vided it is 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 execution 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. Trustees of lands, being the owners of the legal estate, may grant leases, which cannot be impeached so long as they are iustified by the quantity of the estate they possess. If there are several trustees, all must act ; one cannot act separately and inde- pendent of the others, for they have a joint authority only, and therefore the lease of one of several trustees is entirely void.* A party taking a lease from trustees with notice of the trust, and without the concurrence of the person who is beneficially interested, is subject to the control of a court of equity. The lessee of a cestui que trust, however, requires no interest without the concurrence of the trustee ; he is, in fact, a mere trespasser as against the trustee, 1 Jackson v. Campbell, 5 Wend. K. paper, and the legal effect will be the 572 ; Bank of United States v. Dan- same as if made on wax or a wafer dridge, 12 Wheat. R. 68; 6 Teigh. & Ka. Laws of 1848, p. 305. 12 ; 9 East, E. 360. s Lovett v. Steam Saw-mill Co. 6 2 Jackson v. Pratt, 10 Johns. R. 881 ; Paige, R. 54 ; Clarke v. The Imperial Gas Foster v. Shaw, 7 Ser. & R. 156 ; Den v. Co., 4 B. & A. 315 ; s. o. 1 Nev & Man Freeland, 2 Halst. R. 362. In New York, 206. the seal of a corporation may be affixed * Sinclair v. Jackson, 8 Cow. R. 548 • by making an impression directly on the Story's Eq. Jur., § 1062. ' SEC. VIII.] BY TRUSTEES. 87 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 mortgagee, that the trustee and cestui que trust should both join iii a demise.^ If there be several cestuis que trust, the concurrence 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 cestuis que trust, who are not parties to the lease ; such a recital rendering it incum- bent 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. Trustees, holding the fee, may, as we have said, 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, under the circumstances of each particular case ; but they may extend beyond the period of the trust estate, subject to the jurisdic- tion 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 trust, out of the yearly rents and profits, to pay certain annui- ties, and, subject thereto, to permit a person to receive the rents and profits for life, and, after his decease, to 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 unoccupied and unincumbered real estate, liable to large taxes and assessments, for the lives of the testator's children and out of the same to uphold, support, repair, &c., and 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 refer- ence 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, and, without imposing terms 1 Blake v. Poster, 8 Term E. 487, 492. * Webb v. Russell, 3 Term E. 393 ; 1 2 The trustee should demise and lease, H. Bl. 562. and, on the part of the cestui que trust, ^ The Attorney-General v. Owen, 10 words of demise should be inserted, as Ves. 555-560. well as words of consent and approbation. ^ Greson v. Keteltas, 16 N. T. Eep. s Malpas v. Ackland, 3 Russ. R. 273. 491. 88 LAW OP LANDLORD AND TENANT. [CHAP. IV. 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 ninety-nine years at a stationary rent.^ § 132. Whatever may be the term for which the lease is granted, the burden of proving its reasonableness devolves on 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 breach 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 mis- management will attach to a lease made for a long term of years absolute, at a stationary rent, because no man of a reasonable de- gree of prudence would so let his own estate : ^ therefore it is said, that, generally speaking, an alienation by trustees for ninety-nine years, if a mere husbandry lease, and without adequate considera- tion;^ or a lease for seventy years or more, at an unvarying rent (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, — cannot be upheld.* SECTION IX. BY EXECUTORS AND ADMINISTRATORS. § 133. Executors holding the legal estate may demise the prem- ises which devolve upon them by the will of their testator, even before probate ; but administrators can only act under an order made by the authority of the court which appointed tliem.^ Several executors are regarded as an individual person, and have a joint 1 Naylor v. Arnitt, 1 Russ. & Myl. 501 ; Warren, 2 Swanst. 304 ; s. o. 1 "Wils. Ch. 10 Ves. 555, supra. C. 387 ; 6 Beav. 288. 2 Attorney-General v. Cross, 3 Meriy. ^ Bank of Hamilton, 2 Peters, R. 492 ; K. 548 ; 18 Ves. 326. Roe dem. Bendall v. Summerset, 2 "W. BI. 3 Attorney-General v. Owen, 10 Ves. R. 692; 1 Atk. R. 461. In Missouri, an 555 ; Attorney-General v. Hotham, 1 Tur. executor may make leases for not exceed- & Russ. 209; s. c. 3 Russ. 415; 11 Sim. ing three years. Stat, of 1843, 8, 4. In R. 380. Alabama, he must let at auction. Clay, * Attorney-General v. GriflBth, 13 Ves. R. 199. 575; 17 Ves. 290; Attorney-General v. SEC. X.] BT GUARDIANS. 89 and sereral interest in the testator's property ; the lease of one exe- cutor 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 has, at common law, a joint interest with her, in all the efifects of the deceased, and may assume the whole administra- tion, and act in it for all purposes, without her consent ; but the wife cannot do any act as executrix or administratrix without her husband's concurrence. She is, therefore, with respect to terms for years, which she possesses in her representative character, in no better situation during the marriage, than in the case of terms for years to which she is entitled in her own right.^ § 134. It is said, that leases by executors or administrators, though good at law, are voidable in equity, unless shown by the lessees to be a due administration of the assets of the testator or intestate ; an under-lease granted by an administratrix was conse- quently set aside, where the lessee had notice that a sale was not required by the parties beneficially interested.^ A person taking from an executor a lease of premises specially bequeathed to ano- ther, should therefore, if possible, obtain the concurrence of the legatee ; for, after the executors 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. Guardians of infants, who were in the nature of guardians in socage, might, at common law, demise the infant's lands for a term of years, not extending beyond the infant's age of fourteen years.5 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 1 Simpson v. Gutteridge, 1 Mad. C. E. ^ Drohan v. Drohan, 1 Ball & Beat. 616 ; Bedell v. Constable, Vaugh. 179 ; 185 ; Evans v. Jackson, 8 Sim. R. 217. Roe V. Hodgson, 2 Wils. R. 129; 1 * Paramour w. Yardley, Plowd. 539 ; 4 P. Wms. 702 : Doe v. Sturges, 7 Taunt. Co. 28, b ; 3 East, 120. 217. ^ Doe V. Hodgson, 2 Wils. R. 129 ; Ba- 2 Chamb. on Leases, 35. con v. Taylor, Kirby (Ky.), E. 368. 8* 90 LAW OP LANDLOED AND TENANT. [CHAP. IV. extending beyond that period was voidable, provided the infant was then entitled to cho9se 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 coun- try, been essentially superseded in practice, by guardians appointed by the courts of chancery or of probate ; who, as well as testament- ary guardians, are vested with all the rights of a guardian in socage during the whole of' an infant's minority .^ And it is now well 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 XI. BY COMMITTEES AND RECEIVERS. § 136. The committee of a lunatic, being at first considered merely as a bailiff, and having therefore no estate but during pleasure, 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 him to grant an absolute interest, or one that the lunatic, on his recovery, might not terminate.^ But the statutes of England, as well as of the various United States, now authorize such com- mittees to make specific leases, independent, 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 before them. And in all these cases, the rules and orders of the 1 Shopland v. Hyder, Cro. Jac. 55-98 ; lease of the infant's land. May v. Calder, ib. 1 Pick. R. 314 ; Greenl. E. 67 ; Snook 2 Mass. R. 55 ; Anderson v. Darley, 1 Nott V. Sutton, 5 Halst. R. 133 ; Vandoren v. & McC. 369 ; McGruder v. Peter, 4 Gill & Everett, 2 South. 460. Johns. 323. A lease for a longer period ^ Byrne v. Van Hoesen, 5 Johns. R. than the infancy of the ward is Toid. 66 ; Meld v. ScheffeUn, 7 Johns. Ch. E. Ross v. Gill, 4 Call, 250. 154. * Foster v. Merchant, 1 Vern. E. 262; 8 In the Matter of McoU, 1 Johns. Ch. Knipe o. Palmer, 2 Wils. E. 130 ; 3 Ire- R. 25 ; Matter of Dyett, 6 Paige, R. 634 ; dell, E. 389. A mere bailiflf cannot lease Putnam v. Richie, 6 Paige, 390; 2 R. S. his employer's lands otherwise than at 151, § 10. In Massachusetts, South Car- will; hut a power may be conferred on olina, and Maryland, it has been expressly him for that purpose. Shopland v. Ryder, held, that the father, as natural guardian Cro. Jac. 55, 98. of an infant, has no authority to make a ^ Ex parte Dykes, 8 Ves. 79. SEC. XII.j BY AGENTS. 91 courts, constitute the law for the goverance of such committees as well as receivers, who are, in fact, regarded simply as officers of the court appointing them.^ SECTION xir. BY AGENTS. § 137. A lease may, as we have observed, be executed by an authorized agent, as well as by the landlord 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 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 seems 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 mar- ried woman, or an alien.^ His authority may be shown as well by a subsequent ratification, 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 writing. 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, or from subsequent ratifica- tion.^ An agent appointed to contract for the granting of a lease 1 A general rule of the Supreme Court reyersionary estate in the land. Potter v. of New York — Rule 92 — authorizes a Williams, 9 N. Y. K. 142. receiver, who is appointed by the court, ^ Shep. Touch. 270 ; Combe's Case, 9 to receive and collect all dues, demands, Co. R. 76. and rents payable to the debtor ; and he ^ Co. Lit. 52, a ; Hopkins v. MoUineaux, may, without any special order of the 4 "Wend. R. 465 ; Chastain v. Bowman, 1 court, make leases, from time to time, as Hill (S. C), R. 270; Gove o. Buzzard, may be necessary, for a term not exceed- 4 Leigh, 231. ing one year. He may also apply for and * Townsend v. Inglis, Holt, N. P. 278 ; obtain an order, of course, that the ten- 4 Campb. 88, and the ratification relates ants attorn to and pay their rent to him. back to the original transaction. Law- But a receiver of the property of a judg- rence v. Taylor, 5 Hill, R. 113. ment debtor, appointed in pursuance of ^ Story on Agency, § 239-260. A proceedings supplementary to an execu- principal is responsible for the acts of his tion, becomes vested with the title of the agent, not only where he has actually debtor by virtue of his appointment, and given authority to the agent thus to rep- may maintain all actions incidental to a resent and act for him, but where he has, 92 LAW OP LANDLORD AND TENANT. [CHAP. IV. need not be authorized in writing, under the statute of frauds ; for, to constitute a valid executory agreement, relating to lands, by an agent, it is only necessary that the agent be lawfully authorized to make the contract.^ But an appointment under seal is generally necessary where his authority extends to the execution of a lease under seal, or to the demise of any incorporeal hereditament, which cannot be granted otherwise than by deed ; ^ and in cases where written authority to the agent may not be sufficient to give validity to the deed in a court of law, for want of a seal, equity will compel the principal to ratify and confirm the deed.^ If the deed, however, is executed in the presence 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 delegatus non potest delegari.^ And, whenever it is necessary to record a lease, the power nnist be recorded also.^ § 138. Supposing the agent to have authority, an agreement for a lease, as well as a lease executed in pursuance of an agreement, will eifectually 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 his by his words, or his acts, or both, caused respect. The law of 1813 required Con- or permitted the person witli whom the veyances and leases which were to trans- agent deals, to believe him to be clothed fer an interest in lands in presenti, to be with this authority ; and a man may thus signed by the party, or his agent lawfully be held liable as a principal, because he authorized in writing. But in the Revised has iu some way justified all persons in Statutes, the words by writing, are left out, believing that he has constituted some so that it is only necessary the agent other person Ms agent. 1 Parsons on should be lawfully authorized. Under Contracts, 134. this section, and the corresponding provis- 1 CUnan v. Cooke, 1 Sch. & Lef 22, 31 ; ion in the English statute of frauds, it had Boyland v. Warner, 1 Hay. & Jo. 79, 88 ; long been settled that to make a vaUd TurnbuU v. Trout, 1 Hall, N. Y. E. executory contract for the sale of lands, 336 ; McComb v. Wright, 1 Johns. Ch. R. or an interest therein, it was not necessary 667 ; Lawrence v. Taylor, 5 Hill, R. 107 ; that the authority of the agent should be 9 Leigh. 387. in writing; but only that the agreement 2 Blood V. Goodrich, 9 Wend. R. 68 ; itself should be in writing, and should be Horseley v. Rush, cited 7 Term R. signed by him as such agent. 1 Su"-. on 209 ; White v. Cougler, 6 Term R. 176 ; Vend. 186, 10th Lond. Ed.; 1 Sch. & Lef. B. c. 1 Esp. 200; Cooper v. Rankin, 5 29. To the same effect is the case of Binn. R. 612 ; 2 Bibb, R. 174 ; 5 Mass. 40 ; Champhn v. Parish, 11 Paige, R. 406. McWhorter v. McMahan, 10 Paige, R. 386. » Harrison v. Jackson, 7 Term R. 207 ; Per Chancellor Walworth; it is insisted Story on Agency, § 49. An agent can- by the appellant's counsel, that, to consti- not bind his principal by deed unless he tute a lawfully authorized agent to make has authority by deed so to do. Hanford the contract, he must have written author- v. McNair, 9 Wend. R. 54. ity. Such, however, is not the construe- * Gardner v. Gardner, 5 Cush. R. 483 ■ tion which had been put upon the former 6 ib. 120. ' statute of frauds ; and the Revised ^ Combe's Case, 9 Co. 75, b. Statutes have not changed the law in this ^ Stewart v. Hall, 3 B. Monroe, 220. SEC. XII.J BY AGENTS. 93 own ; because, in either case, the principal will be entitled, as against him, to the benefit 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 authority ; ^ 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 his power, and will be stipported in eqxiity ; ^ though at law, according to an English decision, it would seem not to be good pro tanto even for the ten years.* But an acquiescence of the principal, after knowledge of the act done for him by another, will generally be considered sufficient evidence of a ratification of such act.^ § 139. Another general rule, with regard to the execution of an aiithority, 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 in- strument 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 0. of the other part, stated in the at- testation clause that B., as the attorney of A., had set his hand and seal thereto, it was held not to bind A., for the addition of the word " attorney " is 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 0. D. (the attorney)." ^ 1 Taylor v. Salmon, 4 Myl. & Cr. 134 ; 145 ; Long v. Coburn, 11 Mass. 97 ; Lees V. NuttaU, 1 Euss. & Myl. 53, afBrmed Townsend v. Hubbard, 4 Hill, E. 357. by Ld. Brougham, on appeal, 2 Myl. & K. ^ Sugden on Powers, 545 ; Perry v. 819. Bowen, Nel. 87 ; Alexander v. Alexander, 2 Batty V. Caswell, 2 Johns. E. 48 ; 3 2 Ves. 644 ; Campbell v. Leach, Ambler, Term E. 757 ; 15 ib. 45 ; 15 East, E. 38 ; E. 740. Gordon v. Buchanan, 5 Yerger, Tenn. E. * Eoe v. Prideaux, 10 East, E. 158. 71. In general, an authority must be ^ Amory w. Hamilton, 17 Mass. R. 103- strictly pursued in order to bind the prin- 247; Wills d. Back, 2 East, E. 142; Bo- cipal ; but, whatever may be the form or gert v. Debussy, 6 Johns. E. 94 ; Powler manner, it will bind the principal if such v. Sheaver, 7 Mass. E. 19 ; 11 Serg. & be the certain and obyious intention of Eaw. 126 ; Smith v. Henry, 1 Har. & Mc- the parties. The authority must be Hen. 706 ; Harper v. Hampton, 1 Har. &, strictly followed, in all matters of sub- Johns. 622. stance ; but the whole instrument will be ^ Townsend v. Orcutt, 4 Hill, K Y. E. considered, in order to ascertain the in- 351 ; Berkley v. Hardy, 5 B. & C. 355. tention of the parties and the extent of ' Wilks k. Bach, 2 East, E. 142; Spen- the authority. Parsons on Mer. Law. cer u.Pield, 10 Wend. 87. 94 LAW OP LANDLORD AND TENANT. [CHAP. IV. § 140. A distinction is also to be observed between a bare act, as 'the execution of a deed, and the making of a contract, in which , latter case the phraselogy is material ; for if a man describes him- self, in the beginning of an agreement to grant a lease, as making it on behalf of another, and as his agent, but, in a subsequent part of the same agreement says Jie will execute the lease, the agent him- self becomes personally liable ; 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.^ But the attorney is not bound, even though he had no authority to execute the deed, if it appears on the face of it to be the deed of the principal.^ Whenever, therefore, an interest is intended to pass by an instrument 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, consequently none can pass from him. § 141. The proper form for concluding a lease, executed under a power of attorney, is : In witness whereof, A. B., in pursuance of a letter of attorney/ hereunto annexed, bearing date, ^c. (or, if it is a general power, embracing other laiids, then " in pursuance of a letter of attorney/, hearing date, ^c, a copy of which is hereto an- nexed''''^, 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 par- ties, it does not seem to be necessary to affix a separate seal for each person, if the seal affixed appears to have been intended to be adopted as the seal of each of the parties.^ § 142. 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 princi- ple 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 otlier agents, buying property which they are intrusted to sell ; for they are not allowed to derive any benefit therefrom. There- fore the assignee of a bankrupt, who takes a lease of property him- ■■ "White V. Simer, 13 Johns. E. 307 ; hanans v. Lewis, 8 Monroe, 376 ; Yar- Norton v. Heron, 1 C. & P. 648 ; 1 E. & M. borough v. Monday, 2 Dev. 493 ; Stabler 229. V. Cowman, 7 Gill & Johns. 281 ; BaU v. 2 Townsend v. Corning, 23 Wend. R. Dunsterville, 4 Term E. 313. 435 ; Frontin v. Small, 2 Ld. Eaym. E. * Per Ld. Thurlow, in Whichoote v. 1419 ; Stone v. Wood, 7 Cow. E. 453. Lawrence, 3 Ves. E. 740. 8 McDill V. McDill, 1 DaU. E. 63 ; Bo- SEC. Xm.J BY ALIENS. 95 self, instead of selling it, is held answerable for any profit or loss upon the transaction.^ And, in all cases, it is incumbent on a per- son holding the character of an agent, to sliow that the transaction, from which he derives 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. BY ALIENS. § 143. It is a general rule of law, that, although an alien cannot acquire title to property by mere operation of law, as by descent, ^ yet he may by purchase.* He may also make a grant, which will be effectual against all persons except the state ; but, if he purchases 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 may enjoy it ; for, until then, the alien is seized.^ Pursuant to these general principles, and under such restrictions, the common law permitted an alien friend to take a lease for a year of a house for the benefit of trade ; yet, according to Lord Coke, 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 more recently been construed liberally, 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. The common-law doctrine also received an important 1 Ex parte Hughes, 6 Ves. 617 ; 8 Ves. ^ 2 Kent, Com. 62. All contracts 337. made between subjects or citizens of dif- ^ Kingsland u. Bamwall, 4 B.P. C. 154. ferent countries, which are at war with 8 Jackson v. Clun, 3 Johns, Cas. 109 ; each other, are utterly void. If made in Hunt V. Warwicke, Hardin, E. 61. time of peace, the right to enforce them is * Burch V. Brewer, 2 Atk. R. 898 ; 7 suspended during the war, by reason of Co. 25. the personal disability of an alien enemy ' Co. Lit. 2, b; 1 Prest. Con. 257; to sue or be sued. When peace is re- Fairfax V. Hunter, 7 Cranch, E. 603. stored, this right revives, and the contract s Co. Lit. 2, b ; 6 Co. R. 52, b. regains its original obligation and may be 7 Pilkington v. Peach, 2 Show. R. 135. enforced. Griswold v. Waddington, 15 8 Saund. R. 7 ; 3 Mad. R. 94. Johns. R. 57 ; s. c. 16 ib. 438. 96 LAW OF LANDLORD AND TENANT. [CHAP. IV. modification by the Revised Statutes of New York.^ By it, a resi- dent alien, who has filed, in the office of the Secretary of State, an affidavit that he is a resident of the State of New York, and intends to reside in and become a citizen of the United States, as soon as he can be naturalized, and that he has taken the incipient steps which the law requires to enable him to obtain naturalization, has, for six years after filing such affidavit, full power to hold and con- vey real estate, with the exception only that he cannot make leases of the same, or dispose of it by will. He is, therefore, capable of taking a lease, but cannot underlet the premises, though there seems to be no objection to his assigning or disposing of Ills whole interest in the lease. § 145. There are similar statutory provisions in favor of aliens in South Carolina, Indiana, Delaware, and Mississippi. And in Louis- iana, Pennsylvania, Maryland, Michigan, Illinois, and Ohio, the disability of aliens to take, hold, and transmit real property is entirely removed. While in North Carolina and Vermont there is a provision inserted in their constitutions, 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 lessor as a natural-born citizen.^ 1 1 R. S. 720, § 15-20. 2 2 Kent, Com. 70. ^ x Black. Com. 374. SEC. I.J THE FORMAL PARTS OF A LEASE. 97 CHAPTEK V. THE INSTRUMENT OF DEMISE. SECTION I. THE FORMAL PARTS OP A LEASE. § 146. We have seen that a demise for years, being but a chattel interest, may be perfected by the entry of the lessee, without deed or other instrument in writing ; but a deed has always been required for the conveyance of an incorporeal hereditament, and will conse- quently be 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. If written upon stone, board, linen, leather, or the like, it is no deed ; for neither of these articles is so secure from alteration, and at the same time so durable, as paper or parchment.^ If made between more parties than one, there should, regularly, be as many copies of it as there are parties ; and each copy should be cut, or indented, at the top, so as to tally or corres- pond with each other. It then becomes what is teclmically called an indenture; the several copies of the same instrument being executed interchangeably by the respective parties. The copy deliv- ered to the tenant is called the origirlal lease ; that retained by the landlord, the counterpart ; but, for all practical purposes, both parts are now considered originals.^ § 147. If there is only a single instrument, it is not an inden- ture, but is called a deed-poll. The former possesses some advan- tages over the latter, since it imports obligations on the part of the 1 Co. Lit. 229 ; F. N. B. 122. = Dudley «. Sumner, 5 Mass. R. 438. 98 LAW OP LANDLORD AND TENANT. [CHAP. T. lessee, amounting to an agreement between two persons ; an oiEce wliich the deed-poll cannot perform, because 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 interest under such an instrument will be implied, unless he expressly dissents, and will render him liable to an action for rent ; but 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 covenantor ; and consequently, by making use of a deed-poll, all covenants on the part of a lessee are dispensed with.^ § 148. The date of a lease is no part of its substance, and need not, in fact, be inserted ; and, therefore, a mistake in the date will not vitiate the instrument.^ If there is no date, or an impossible one, the term will be considered as commencing from the delivery of the deed ; unless some particular time for its commencement is therein specified. 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.^ It is competent, also, for either party to show, that the delivery took place on a day different from that of the date.* § 149. As to the names of the parties, it may be observed, that the law knows but one Christian name ; and that, therefore, the omis- sion 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 the name, nor a variance in the name of a corporation, which are not materially different from the true name, will invalidate the instrument.^ If a lease is made by an agent or attorney, it should run in the name of the principal, and not of the agent ; because a power of attorney 1 Thompson v. Leach, 2 Vent. E. 198 ; ^ Church v. Gilman, 15 "Wend. E. 656 ; g. c. 3 Mod. 296 ; Chancellor v. Poole, 2 4 B. & C. 908 ; 7 Dow. & Ey. 507. Dougl. 764; Burnett v. Lynch, 5 Barn. & * Steel v. Mart, 4 Bam. & Cres. 272; Cr. 589 ; 8. c. 8 Dow. & Ey. 368. The s. c. 6 Dow. & Ey. 392 ; Morris v. Wads- words of a covenant in a lease by inden- worth, 17 Wend. E. 103. ture are to be taken, however set down in ^ James v. Stiles, 14 Pet. E. 322. Parol the instrument, as the words of the party evidence is inadmissible to show that a to whom they properly belong, or, if prop- lease, executed in the name of and render- erly belonging to both, as the words of ing rent to one person, was intended for both. The words of an Indenture, being the benefit of another. Jackson v. Foster, the words of either party, are not to be 12 John. R. 488 ; or, that although made taken most strongly against the one or onitsface to A., it wasforthebenefit of A. beneficially for the other, as the words of and B. jointly. Otis v. Sill, 8 Barb. E. a deed-poll are. Beckwith v. Howard, 6 102, 122. Ehode Is. R. 1. u McCarthy v. Noble, 5 N. Y. E. 380 ; 2 Jackson v. Schoomnaker, 2 Johns. K. People v. Euukle, 9 John. E. 147 230-4; ii. 230. SEC. I.J THE FORMAL PARTS OF A LEASE. 99 gives no interest in the land, but merely authorizes the attorney to stand in the place, and act in the name, of his principal.^ The per- son to whom the lease is made ought to be a party ; for if A. cove- nants with B. that C. shall enter, and enjoy, this will be a mere collateral covenant, and not a lease; because B., with whom it is made, is a stranger, and C, the intended lessee, is no party to the agreement.^ But the omission of the lessee's name entirely from the instrument 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 void.^ § 150. Recitals of former instruments, or of circumstances that have led to the making of the lease, are sometimes used by way of explanation. 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 the lessor had no interest in the subject-matter of the demise.^ So a recital in a lease, that a former lease granted to another person had been sur- rendered, would not afford evidence of the fact of a surrender.^ Nor would the execution of the counterpart of a new lease, taken by the lessee prior to the determination of his former interest, and reciting 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. 1 Frontin «. Small, Ld. Ray. 1418 ; party executing it as a sealed instrument, Strange, 705 ; 2 East, R. 142. whatever may have been the intent of the ^ Perry v. Aiken, Cro, Bliz. 173 ; 1 party executing it, and whatever advances Leon. R. 136 ; 3 Bulst. 251. may have been made upon the faith of it ; 3 Jackson v. Titus, 2 J. R. 430 ; United and that no parol authority to fill it up States V. Nelson, 2 Brock. 64; Bucking- could increase its validity, unless such ham V. Bailey, 30 Mass. R. ; Haydon v. authority was exercised before its deliv- Weseott, 11 Conn. 129 ; Ayres v. Harness, ery, and without the knowledge of the 1 Ham. Ohio R. 368 ; 5 Ham. 408 ; 8 party to whom it was delivered." MarylandR. 118; 14Georg.R. 173; 3Ind. * Jackson v. Streeter, 5 Cow. 529; 83 ; Squire v. Whitten, in House of Lords, Bath & Montague's Case, 3 Chan. Cas. Cas. A. & F. 333 ; but see Willey v. 101 ; Shep. Touch. 77. With regard to Moore, 17 S. & R. 438 ; 5 Har. 130 ; 19 recitals, one reason for inserting them is La. R. 179. In the case of Chauncey v. to prevent the parties to the lease from Arnold, in the Superior Court of the city afterwards denying the matters recited ; of New York, March 20th, 1861, His for a lease by deed operates like any other Honor, Mr. Justice Robinson, deUvering deed as an estoppel, and prevents the par- the opinion of the court, arrives at the ties to it from afterwards disputing facts following conclusion ; — " Upon the whole, recited in it. But see an important quali- therefore, I do not find that there is any fication of this rule in Greenleaf on Evi- law of this State by which a sealed instru- dence. Vol. I. p. 267. . ment creating an obligation executed in ^ Hermitage o. Tompkins, 1 Ld. Ray. blank can be filled up by the person to 729. whom it may be delivered in that condi- " Lyon v. Reed, 13 Mees. & Wels. tion, so as to become operative against the 285. 100 LAW OF LANDLOED AND TENANT. [CHAP. V. having no words in it which could denote, or amount to, a yielding, or rendering-up of the interest of the lessee.^ § 151. If a lease for years be granted subject to another lease, to conunence after the expiration 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 one, then existing, but misrecited in a material part, the new term will commence immedi- ately, in enumeration of years ; though not in possession untU 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 mis- recital of the lessee's name has been deemed material when calcu- lated to mislead ; but a misrecital of the rent, of the time or place of payment, of the covenants, or that the lease was without impeach- ment of waste, will not be deemed material misrecitals of the lease.* § 152. Rent, as such, is not, as we have observed, 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 con- sideration, express or implied, must appear to give validity to the lease as a contract ; and this is either a good consideration, as nat- ural 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 amount of the res- ervation be fixed at the time of the creation of the tenancy, for this may be determined afterwards.^ And if no amount of rent has 1 Eoe V. Archbishop of York, 6 East, He is held to be a servant, and not a ten- 86 ; s. c. 2 Smith, 166. ant. The cropper and the landlord are 2 Foot V. Berkley, Carter, 147 ; s. c. tenants in common of the crop ; and it is 1 Vent. 83 ; Bishop of Bath's case, 6 Co. only when this contract assumes the shape 34, b ; 36, a. of a lease, and the tenant goes into posses- 8 Miller v. Maynwaring, Cro. Car. 397 ; sion to the exclusion of the landlord, that s. c. Jo. 354. the relation of landlord and tenant subsists * Foot V. Berkley, supra, per Tirrel, J. between them. " Failing v. Schenck, 3 Hill, E. 344 ; ' Denn v. Cartright, 4 East, E. 29. State V. Page, 1 Spears, E. 408. And see, Chancellor Kent, .3 Com. 462, is of opinion ante, § 14. _ that the best way of reserving perpetual 8 Where the rent consists of a certain rents, and preserving uniformity in value portion of the annual produce of the farm, is to make them payable in wheat or it is commonly called letting the land on other produce. The ancient leases' in shares, or, sometimes, cropping it. A New York, in the manor counties, are cropper is one who is employed to raise a generally of this description. It saves the single crop, and who is to be paid for his interest of the persons in whose favor rent labor by a certain portion of the produce, is reserved from sinking by the deprecia- SEC. I.J THE POEMAL PARTS OP A LEASE. i03L been agreed upon, the tenant will still be held to pay so much as the premises are reasonably worth.^ § 153. If, however, the consideration is fraudulent, unjust, or . immoral ; if, for instance, it is founded on a marriage-brokage trans- action, or be contemporaneous 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 under-lessee, not con- cerned in the loan, or cognizant thereof, will not be disturbed by such a consideration.^ 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 pre- sumption that the advance was made as a means of 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 dis- tresses of the lessor, it will be considered a mere evasion of the statutes against usury .^ Still, the taint of usury may be only mat- ter of inference ; and, if it can be shown that no advantage has been taken by the lessee, but, on the contrary, that the circumstances 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. Eent must issue out of lands, or such things as are capa- ble of livery, and may be distrained upon ; and, in general, cannot be reserved out of any thing lying in grant ; an incorporeal heredi- , tament; a mere privilege, or easement; nor out of a personal tion of money, owing to the augmentation '' Brown v. O'Dea, 1 Sch. & Lef. 115 ; of gold and silrer, and the accumulation ib, 182, 310 ; Doe dem. Grimes v. Gooch, of paper credit. And Adam Smith ob- 3 Barn. & Aid. 664. serves, that such rents have preserved ^ MoUoy v. Irwin, 1 Sch. & Lef. 310. their value much better than those which Sed gucere de hoc, under the New- York have been reserved in money. It certain- Usury Law. ly seems to be the fairest mode of letting, * Moore v. McKay, 1 Beat. 282 ; 12 as well for the landlord as the tenant : the Mees. & Wels. 602. landlord has the advantage of a prosperous ^ Morough v. O'Dea, 1 Ball & Beat. harvest, and the tenant escapes the heavy 116 ; Corbet v. Seagrave, 2 ib. 101 ; 1 Sch. loss which a year of scarcity might bring & Lef 119, 190. upon him. ^ O'Brien v. Grierson, 2 Ball & Beat. 1 Scranton v. Booth, 29, Barb. E. 171. 332 ; Molloy v. Irwin, supra. 102 ' LAW OF LANDLORD AND TENANT. [CHAP. V. chattel. But a grant of rent, in respect to things incorporeal, or personal property, may still operate as a contract, and bind the grantor.^ No particular or technical form of words is necessary to constitute a reservation of rent. A demise, provided the lessee pay such a rent, or in consideration of the rent aforementioned, will be as effectual as if it contained the words yielding and paying, which are the usual words for this purpose.^ And, as to the person in whose favor it is reserved, it is, perhaps, best that the reservation should be in general tenqs, without saying to whom ; for, in that case, the law directs the intent, according to the nature of the les- sor'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 inter- est, and not the freehold, which alone passes to an heir.^ Being an iacident to the reversion, it must follow the nature of the land out of which it is reserved ; as if a man seized as heir on the part of his mother, demise land rendering rent to him and his heirs, it must go to 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, ren- dering rent, the rent after his death goes to his executors, and not to the widow .^ § 155. If a special reservation is made, care must be taken that it be to him from whom the estate in the land is derived ; ^ for, if a lessor reserve rent to himself and his wife, although this is good for his life, yet after his death, the wife, being a stranger, shall not 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 rent, as such, cannot be reserved to a stranger, for the want of privity, such a reservation may be good as a sum in gross, for which an action in covenant wUl lie.^ And if a man seized of a freehold make a lease 1 Spencer's Case, 5 R. 17, b ; Cro. ^ Co. Lit. 46, b ; Cro. Eliz. 278. Rent Eliz. 256 ; Winslow v. Henry, 5 Hill, R. accruing before the death of the lessor be- 481. longs to his personal representatives ; that 2 Drake v. Mundy, Cro. Car. 207; which accrues afterwards, to his heirs. Caswell V. Districh, 15 Wend. E. 379. King v. Anderson, 20 Indiana R. 385. ^ KnoUes's Case, Dyer, 5, b, 45, a; '^ Co. Lit. 47, a; Hornbeck v. West- Co. Lit. 47, a. brook, 9 Johns. R. 73 ; Ege v. Ege, 6 * Van Wicklen v. Paulson, 14 Barb. E. Watts, 138 ; 13 S. & R. 157. Rent can only 654 ; Cother v. Merrick, Hard. 94. An be reserved in favor of a person having a annual rent may, however, be reserved legal estate in the land. Gilbertson v. by deed, upon a grant in fee, and will be Richards, 4 Hud. & Nor. 277. vaUd as a rent-charge ; notwithstanding ^ 2 Rol. Abr. 447, 1. 33. there is no reversion in the person en- ' 8 Rep. 70 ; Co. Lit. 99, b ; 213, b. titled to it. Van Rensselaer v. Hays, 19 ^ Erontin v. Small, Stra. R. 715: 1 Ld. N. Y. R. 68. Eaym. 418. SEC. I.J THE FOEMAL PARTS OF A LEASE. 103 for a term of years, to commence after his death, rendering rent to his lieirs, tliis reservation will be good.^ If made to improper per- sons, the law follows the words ; as if the reservation be to the lessor and his executors, he having the freehold, it will determine at his death, unless the land be devised to the executor ; because the re- version, to which the rent is incident, descends to the heir.^ § 156. According to the old authorities, if a lease for years re- served rent to the lessor and his heirs, the payment of rent would cease on the death of the lessor, for the teir cannot have it, as he could not succeed to the estate, being only a chattel ; and the exec- utor cannot have it, there being no words to carry it to him.^ But it is not likely that our courts would now recognize so subtle a dis- tinction, or hold otherwise than that the rent was, in all such cases, annexed to and would follow the reversion. Indeed it has been since decided, that where a man seized of land in fee made a lease for years, reserving rent to him and his assigns during the term, such reservation should not determine by the death of the lessor, but the rent should go to his heir ; for, though the heirs are not mentioned in the reservation, yet there were words which evidently declare the intention of the lessor, that the payment of the rent should be of equal duration with the lease, he having provided that it should be paid during the term; and, consequently, the rent must be carried over to the heir, who came into the inheritance after the death of the lessor, and would have succeeded to the pos- session of the estate if no lease had been made. And it was stated in this case, that if the lessor had assigned over his reversion, the assignee should have had the rent as incident to it, because the rent was to continue during the term, and must therefore follow the reversion, since the lessor made no particular disposition of it separate from the reversion.* And on a lease for years, reserving rent, during the term, to the lessor, his executors, administrators, and assigns, the rent will go to the heir ; because the reservation being to the lessor and his assigns during the term, the words exec- utors and administrators are void ; and the lessor ha;*'ing the inheritance, such express words discover the intent of the contract 1 Gates V. Trithe, 2 Kol. Abr. 447 ; Co. '1 Vent. 161 ; MaUory's Case, 5 Eep. Lit. 99, b; 213, b. 112; s. c. Cro. Eliz. 832. 2 Hardr. B. 91; Sacheverell v. Frog- * Sury v. Brown, Latch, 99; Isher- gatt 1 Vent. R. 161, woodu. Oldknow, 3 M. & S. 382. 104 LAW OP LANDLORD AND TENANT. [CHAP. V. to be, that the lessee agreed to the payment of rent to him during the continuance of tlie demise.^ § 157. Exceptions are frequently introduced, to restrain, explain, or qualify general terms in a demise ; as to except a farm out of a manor, a close out of a farm, or the like. But an exception of that which is expressly granted is void ; as if a man demise a house and shops, excepting the shops ; or certain lands and underwoods there- unto belonging, excepting the underwoods ; or twenty acres, ex- cepting ten acres ; in eac^ 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 life, not being lessee without im- peachment 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 ex- cepted; 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 other right or control, over the demised property, he must expressly reserve it. 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 a 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. A reservation is properly of some right or profit, to arise from the subject of the demise, which had previously no separate existence ; while an exception relates to some existing component part of the thing demised, which is capable of being severed or dis- tinguished from it. As, in the case of a demise of all that farm called A., except such a close, the close would pass as part of the farm without the exception ; and the words of exception are con- 1 Sacheverell v. Froggatt, 2 Saund. R. * Bacon v. Gyrling, Cro. Jac. 296 ; 367 ; 2 Lev. 13 ; Eaym. 213 ; Vent. 161. 13 Co. 60 ; 1 Com. Dig. 607, Biens, H. 2 Hob. 170; 3 Dy. 264, b, n, (40); ^ Good u. HUl, 2 Esp. 690. 12Madd. 14; Cro. Eliz. 244. e Brunton v. HaU, 12 B. 792; s. c. 3 Saunders's Case, 5 Co. 12, a; Cro. 1 Ga. & Day. 207. Eliz. 683. SEC. I.] THE FORMAL PARTS OF A LEASE. 105 sidered the words of the lessor.^ But where there is a reservation in favor of tlie lessor of a thing dehors tlie lease, as a way, common, or other profit ; or a proviso 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 lessee's part for the lessor's enjoyment, and not to an exception.^ An exception includes every thing dependent on it, and necessary for its enjoy- ment; thus, if a lease reserve 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 pass and repass through them, if they are so situated that he cannot otherwise have the complete enjoyment of the premises de- mised 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 re- serving all timber-trees and other trees, but not the annual fruit thereof, it was held that the apple-trees were not within the excep- tion.^ And, if the exception is not specified with reasonable cer- tainty, it is void altogether ; as in the case of a demise of a minor, excepting 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. As to words of demise, we may observe, that no particular form of words is necessary to constitute a lease ; but whatever ex- pressions explain the intention 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 years, as effectually as if the most proper and pertinent form of words had been made use of for that purpose.^ The usual 1 Bullen V. Denning, 5 Bam. &, Cress. reserTation in a lease of " one day's sen- 842. vice, with carriage and horses " annually, 2 Bush V. Cole, 12 Madd. 24 ; Cro. on a day named, is not void for uncer- Eliz. 657 ; The Durham R. Co. v. Walker, tainty. Van Rensselaer v. Jones, 5 Den. 2 Ga. & Dav. 326. E. 449. 8 Cro. Eliz. 17; Earl of Cardigan v. "> Leigh w. Shaw, Cro. Eliz. 372; 3 Dy. "iijTnitage, 2 Barn. & Cress. 207; s. c. 3 264, b, n, (40). Dow. & By. 414. * Hallett v. Wyhe, 3 Johns. E. 47 ; * 11 Co. R. 52, a. Thornton v. Payne, 5 *. 74 ; Bac. Abr. s Bullen V. Denning, supra ; Shep. tit. Lease ; Merrick c/. Lewis, 3 McCord, Touch, 100 ; 2 Barn. & Cress. 206. E. 211. 6 Dorrell v. Collins, Cra Eliz. 6. A 106 LAW OP LANDLOED AND TENANT. [CHAP. V. 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 suificient to make a lease for years.^ And a covenant with a man to stand seized to his use will operate as a lease at common law .2 So will a license to enter and enjoy land, or to reside in a certain house.3 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 a good lease for twenty-one years, and that the word have should be taken in the present tense, and equivalent in significance to the word grant in a deed of feoffment, by which the party is estopped from denying the creation of the estate.* An agreement that A. shall have, occupy, and enjoy land, will enure as a lease, if it appears to be the intention of the parties to create a 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 suificient 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 tenancy, though not inserted in the instrument.'^ § 160. An accurate description of the premises constituting the subject-matter of the demise is important, for the purpose of pas- sing 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 ia void.^ It is not, how- ever, in general, advisable to particularize too minutely all the vari- ous circumstances of name, place, boundaries, and occupation ; 1 Co. Lit. 301, b. The term grant in- " Lady Montague's Case, Cro. Jac. eludes a demise or lease. Darby v. Calla- 301. glian, 16 N. Y. R. 71, 75. ' Doe dem. Jacklin v. Cartrigbt, 4 2 Right dem. Bassett v. Thomas, Burr. East, R. 29. See, ante, chap. 1, § 1. B. 1446. 8 Dingman v. Kelly, 7 Indiana R. 717. 8 1 Madd. R. 14 ; Right dem. Green v. A description of the premises, though Proctor, Burr. 2209. imperfect, is suflBciently certain if tlie * 2 Bend. 7. That a recital in a will boundaries can be ascertained with reas- is an estoppel to all claiming under the enable certainty, especially if possession wUl, see Denn v. Cornell, 3 J. C. E. 174. has been taken, and they have been occu- 5 Hallett V. WyUie, supra, 1 Rol. Abr. pied imder the lease. Pierce v. Minturn, 847, 1. 40; Cro. Jac. 92 & 172; 2 Madd. 1 California R. 470. B. 79 ; 5 Term B. 168. SEC. I.J THE FORMAL PARTS OF A LEASE. 107 such only as are sufficient for the purpose of identity should be introduced, for, where numerous circumstances 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 gen- eral description. But, 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 written instruments, if such evidence neither varies nor contradicts the writ- ten contract.-^ § 161. The grant of a thing passes the incident as well as the principal, though the latter only is mentioned ; and this effect can- not be avoided without an express reservation.^ Thus, 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, although they be not under the same roof, or lie contigu- ous to it.^ 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 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 ^ As general rules of construction, it word were inserted, although the partic- may he observed, that written documents ular passage where it ought to stand con- are themselves the best evidence of the veys a sufficiently distinct meaning with- facts they contain, the circumstances they out it. White v. Eagan, 1 Bay, E. 247 ; relate, and the intentions they declare. Wight v. Dickson, 1 Dow. K. 141. A Regard is to be had to aU their parts ; and sweeping clause, at the end of a particular general words may be restrained by par- specification, will not pass any property of ticular recitals. If a lease operates two a difTerent nature from that particularly - ways, the one consistent with the inten- set forth. Smith v. Strong, 14 Pick. E. tion of the parties, and the other repug- 128 ; Barnard v. Martin, 5 N. H. E. 536. nant to it, effect wiU be given to the An instrument of demise, agreed to let for intent ; for deeds are always to be con- a year, but most of the subsequent stipu- strued so as to operate according to the lations were inapplicable to a tenancy intention of the parties, if by law they determinable by a notice to quit; it ap- may ; and if they cannot operate in one peared on its face to have originally con- form, they shall in another. Quacken- tained words creating a tenancy from boss V. Lansing, 6 Johns. R. 49. Although year to year, which had been struck out ; the intent of the parties be in opposition such words were allowed to explain the to the strict letter of the contract, it must intention of the parties to have been to prevail when clearly ascertained from it. lease for a year only ; and that the terms Hathaway v. Power, 6 Hill. 453; Tracy inapplicable to such a tenancy must be V. Albany Exch. Co. 3 Seld. E. 474; expunged, or as only apphcable in case Marvin v. Stone, 2 Cow. R. 781 ; 2 B. & the tenancy should continue. Strickland P. 13 ; 4 Moore, 448 ; Cowp. 600. A v. Maxwell, 2 Crom. & Mees. 539 ; 4 Tyr. promise is to be interpreted in that sense 346 ; Hull v. Fuller, 7 Verm. 100. in which the promisor knew that the ^ Pattison v. Hull, 9 Cow. 747 ; Evans promisee understood it. Barlow v. Scott, v. Re^s, 12 Ad. & El. 57 ; Rood v. N. Y. 24 N. Y. E. 40. Where a material word & E. R. R. Co., 18 Barb. R. 80. appears to have been omitted in a lease ^ 1 Hale, 558 ; 2 Stark. R. 508. by mistake, and other words cannot have * Bettisworth's Case, 2 Co. 32 ; Plow. their proper effect unless it be introduced, 171 ; 1 Inst. 5, b. such lease must be construed as if that 108 LAW OF LANDLOED AND TENANT. [CHAP. V. and carry them away.i The word land passes all that grows or is built upon its surface; including buildings, trees, fixtures, and fences. 2 A farm includes houses and lands ; while a grange will include, not only barns, but stables and out-houses used for the pur- pose of husbandry .3 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.* Mere lodgers are entitled to the use of the knocker and door-bell, skylight and water-closet, unless any of them are excepted out of the agreement.^ § 162. This principle, however, is to be understood as applying to such things only as are directly incident to the grant, and neces- sary to the enjoyment of the thing granted ; therefore, an easement not naturally and necessarily belonging to the premises will not pass.8 And if a man, upon a lease for years, reserve a way through the house of the lessee to a backhouse, he can only use it at reason- able times, and upon request.^ A way of necessity is also limited by the necessity which created it ; when the necessity ceases, the right of way also ceases. If, therefore, at any subsequent period, the party entitled to such 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 neces- sity.^ § 163. Whether certain premises are parcel of and included under those demised is always matter of evidence.^ But where a demise is by indenture, the parties are estopped from disputing that the state 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 artificial boundaries will prevail over speci- fied courses and distances ; since these are less certain than the former.^ As in a demise of a certain tract of land on a creek, sup- 1 Per Best, C. J., 2 Bing. 83 ; Cro. ' Per Parke, B., 6 M. & W. 189. Jac. 170. 8 Holmes v. Goring, 2 Bing. 76 : 5 M. 2 Canfield v. Pord, 28 Barb. R. 336 ; 1 & R. 448 ; 7 C. & P. 761. Den. R. 550 ; Mott v. Palmer, 1 Comst. R. ^ Doe dem, Freeland v. Burt, 1 Term 564. The word " land," when used alone R. 701 ; 3 B. & C. 870. in Dutch deeds, means arable land only. ^ Birch v. Stevenson, 3 Taunt. R. 469. Van Gorden v. Jackson, 5 J. R. 440. A ii Doe v. Thompson, 5 Cow. R. 371 ; conveyance of the fee of the land does not 7 ib. 723 ; 9 ib. 661 ; Massengill v. Boyle, pass growing trees previously sold. War- v. Humphrey, 205 ; Smith v. McAllister, ren v. Leland, 2 Barb. R. 613. 14 Barb. R. 434. A grant of land bounded 8 Co. Lit. 4, a ; Cro. Jac. 648 ; Isham on tide water, extends only to ordinary u. Morgan, 9 Conn. 374. high-water mark. Wiswall v. Hall, 3 * Bennett v. Bittle, 4 Rawle, R. 330. Paige, R. 313. If bounded by a river ' Underwood v. Burrows, 7 C. & P. 26. where the tide does not ebb and flow, the s Manning v. Smith, 6 Conn. R. 289. grant extends to the middle of the stream. SEC. I.] THE FORMAL PARTS OP A LEASE. 109 posed 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 certain known monuments, such a description must prevail ; even to the exclusion of an understanding between the parties that the lands shall be bounded by certain other monuments.^ Where the quantity is mentioned, in addition to a description of the boundaries of land, without any express covenant that the land contains that quantity, the whole must be considered as mere description.^ If the description refers to another deed, it may be made sufficiently certain by the reference.* § 164. If the description of the premises in a deed is imperfect, yet sufficient appears to point inquiry to the true locality and boun- dary of the land, the deed is not void for uncertainty, but the defect may be cured by parol evidence, to give identity to the premises intended to be conveyed.^ And, where there are particulars, suffi- ciently ascertained to designate the thing intended to be demised, the addition of circumstances 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 Comra. of Canal Fund v. Kempshall, 26 whether specified or not. Hay v. Cum- Wend. E. 404 ; 4 HiU R. 369. If it is berland, 25 Barb. R. 594. If land is con- described as running along the shore or veyed by metes and bounds, and the the bank of the river, the grant is restrict- description at its close contains an asser- ed to the margin at high water. Storer tion of the quantity, such assertion is V. Freeman, 6 Mass. R. 435 ; 17 ib. 298 ; matter of description only, and not a cove- Kingman v. Sparrow, 12 Barb. R. 201 ; nant of quantity. Root v. Puff, 3 Barb, if, however, it be to the bank of a stream E. 353 ; 2 John. R. 39 ; 2 Mass. R. 380 ; which is not navigable, the grant will ex- 5 ib. 355 ; 19 Wend. E. 175 ; 8 Con. R. tend to the thread of the stream. Jackson 19 ; 2 N. H. E. 303 ; 3 Fairf. R. 320 ; 6 S. V. Louw, 12 Johns. R. 252 ; but see Halsey & R. 488. V. McCormick, 13 N. Y. R. 296. ^ Allen v. Bates, 6 Pick. R.' 460. 1 Hall V. Powell, 4 Serg. & Rawle, 456 ; Punctuation will be resorted to, in order Shaw w. Clements, 1 Call (Penn.), R. 438; to settle the meaning of an instrument, Bastin v. Christie, Taylor (N. C), R. after all other means fail. Ewing v. 116 ; Baker v. Glasscock, 1 Hen. & Mumf Burnet, 11 Peters, R. 41. ( Va.), R. 177. * Jenkins v. Bodley, 1 Smedes & M. R. 2 Clark V. Baird, 5 Seld. E. 183. 338 ; Seaman u. Hogeboom, 21 Barb. R. » Powell V. Clark, 5 Mass. R. 355. 398. Where a person lets to others his /arm an(i ^ Jackson v. Clark, 7 Johns. R. 217; farming-house thereon, there is no restriction Jackson v. Marsh, 6 Cow. 281. A lease as to the right of possessing other houses of a lot describing it as number 2, but add- on the farm ; for the lease of the farm ing metes and bounds, descriptive of lot embraces all buildings upon the land, number 4, which the lessor did not own, 10 110 LAW OP LANDLORD AND TENANT. [CHAP. T. its signing and delivery, is deemed to be incorporated in it, and may, therefore, introduce any matter tending to qualify the pro- visions contained in the body of the instrument, or even to defeat it by -way of condition.^ Even separate instruments, executed at the same time, relating to the same subject-matter, may be construed, and taken together, as diiferent parts of the same agreement.^ But a written declaration indorsed on the lease, after 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 dis- charge, but by an instrument of as high a nature as itself.* § 165. As a general rule, the unauthorized alteration of an instru- ment, by one claiming a benefit under it, avoids it so far as respects any remedy by action on it ; and this, whether the alteration be material, or of a part quite immaterial.^ Though it is otherwise if the alteration is made by a stranger, without the consent of the party .8 The rule, however, has not the same application, where the title to real estate is in question ; for neither the alteration nor the destruction of a deed, will devest property which has once be- come 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 such estate is fraudulently 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. the tenant taking possession of the former, Bank of America, 19 Johns. E. 391 ; and is a good lease of number 2. Lush v. see, ante, § 149. Blanks in a sealed instru- Druse, 4 Wend. K. 813. ment can not be filled in after its delivery, 1 Fhnt V. Brandon, 1 New R. 73 ; Ly- by another person, except by the authori- burn V. Warrington, 1 Stark. R. 130 ; ty of the grantor himself under seal. Co. Emerson v. Murray, 4 N. H. R. 171. Lit. 171 ; Shep. Touch. 54 ; 4 Vin. Abr. 2 HiUs V. MiUar, 3 Paige, R. 254. Blank. ; Com. Dig. Fait A., p. 1. There 8 Russell V. Scott, 9 Cow. R. 279 ; 4 M. are, however, cases where, in the same & S. 30; Williams v. Handley, 3 Bibb, written instrument, there are entirely R. 10. disconnected obligations, or statements, * Goodright dem. Nicholls v. Mark, 4 whoUy independent of each other ; where M. & S. 30. A lease was extended by an the alteration or insertion of one, after the agreement indorsed upon it, varying its others have been executed, will not affect terms ; and, subsequently, after the expi- it. Such was the case of Doe, ex. d. ration of the original term, another exten- Lewis and others v. Bingham (4 Barn, sion of " the within lease " was indorsed : and Aid., 672) ; Wooley v. Constant,- 4 held that it extended the modified lease. Johns. R. 54. Cram v. Dresser, 2 Sandf. R. 120. « Eees D. Overbaugh, 6 Cow. R. 746 ; 6 I'igott's Case, 11 Co. R. 26 ; Masters 2 Cow. R. 72. V. Miller, 4 T. R. 320; Woodworth .,. SEC. II.] THE EXECUTION OF A LEASE. Ill But, as to an estate which may exist ■without deed, such as a rent, or other incorporeal hereditament, a fraudulent alteration or can- cellation destroys the deed, 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 destroys 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 deed in the hands of the grantor to support both the contract and the estate.^ SECTION II. THE EXECUTION OP A LEASE. § 166. The execution of a lease consists in its signature and de- livery, if it be a parol contract ; or in its sealing and delivery, if it be by deed. When a seal is required, it must, in New York,^ New Jersey,^ and the New-England States,* be, according to the common law form, which is strictly an impression upon wax, or wafer, or other tenacious substance capable of being impressed;^ but, in practice, the seal of an individual is usually a plain piece of paper, without any device, attached to the deed with wafer ; while the seal of a corporation exhibits some device to give it a distinctive charac- ter. But a mere stamp on the paper upon which the instrument is written, whether made by an individual or a corporation, without the use of wax or wafer, is insufficient ; ^ nor will an ordinary piece 1 Lewis V. Payn, 8 Cow. K. 71 ; Bot- In New York the seal of a corporation torn V. The Bp. of Carlisle, 2 H. Bl. R. may be made by impression directly on 250 ; and see Davidson v. Cooper, 13 M. the paper. Laws 1848, p. 305. & W. 343. Title passes by the delivery ^ Perrine u. Cheeseman, 6 Halst. E. of a lease, and will not be revested in the 174. lessee by an alteration of the lease by the * 4 Kent, Com. 445. lessee. Smith v. McGowan, 3 Barb. R. * Beardsley v. Knight, 4 "Verm. R. 471. 404. Held otherwise in BMss v. Mclntyre, According to Lord Coke, a seal is wax 18 Vert. R. 466. with an impression. Inst. 169. 2 Warren v. Lynch, 5 Johns. R. 239. ^ Bank of Rochester v. Grey, 2 Hill, 112 LAW OF LANDLORD AND TENANT. [CHAP. V. of wax, without an impression upon it, suffice ; for mere wax, with- out a character, is no seal.i In Pennsylvania, Indiana, and Ohio, a mere flourish with a 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 Virgina 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 con- sidered 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 statiite.^ In all the latter decisions, much force is given to the attestation claiise. If by this it appears that the instrument was designed to be a sealed instrument, and there is any thing affixed to it or is 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 evi- dence 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 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. 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 N. Y. R. 227 ; 3 *. 493. Except in New 238 ; 3 Blackf. 161 ; Jones u. Logwood, 1 York, where the seal of a corporation or Wash. R. 42. of a public officer may be stamped on the ^ Austin v. "Whitlock, 1 Munf. R. 487 ; paper, without wax or wafer. Laws of Lee v. Adkins, 1 Minor, 187. 1848, p. 305. In the case of Ross v. « Frasher v. Everhart, 3 GiU & Johns. Bedell, 5 Duer, R. 462, the learned judge E. 234 ; 7 ib. 284. expresses the opinion that an actual seal, ^ Ealph v. Gist, 1 McCord, R. 267. stamped upon paper of sufficient tenacity ^ Bohanans v. Lewis, 3 Mom-oe, E. to receive and retain the impression, is a 376. seal in the technical sense, and within the ' Supra, and see Ball v. Taylor, 1 C. & strict definition of the common law ; the P. 417. case, however, seems to refer to the seal- ' Mackay v. Bloodgood, 9 J. R. 285 ; ing of a commercial obligation, and not to McDiU ?). McDill, 1 Dal. R. 63 ; 2 Dev. that of an instrument for passing an estate 493; 4 T. R. 313; IBlackf. 241; 7 Gill. in land. To the same effect is Curtis v. & J. 284 ; Townsend v. Hubbard 4 Hill Leavitt, 17 Barb. E. 309; s. c. 17 N.Y.R. E. 351; University of Vt. v. Joslyn, 21 521. Vert. E. 52. This last case determines 1 Perry v. Price, 1 Miss. 553 ; 2 Bl. that the intention may be drawn from the Com. 297. lease itself in the absence of any other ^ Alexander v. Jameson, 5 Binn. E.. evidence. SEC. II.J THE EXECUTION OF A LEASE. 113 person, authorized to receive it.^ If it requires the approbation of a tliird person to render it 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 accompanied by an act importing 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 in- tended to have been delivered on the day it bears date, unless the contrary is proved ; ^ notwithstanding it was not acknowledged until afterwards.* There can be no delivery, however, without an acceptance, either express or implied : ^ but the assent of the gran- tee to its acceptance may be presumed from the beneficial nature of the transaction ; ^ or where the deed was drawn and executed at his request.^ § 168. 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 ; for his acceptance may be presumed 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 subsequent 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 be some assent on the part of the grantee ; ^^ but a subsequent possession of the deed by the grantee, 1 Jackson v. Hill, 5 Wend. R. 532; deed was delivered on the day it bears Shep. Touch. 57 ; 4 Cruise, § 52. The date does not prevail in respect to deeds delivery of a deed is complete when the not acknowledged or proved, and which grantor has put it beyond his power to re- have no subscribing witness. And such voke or reclaim it. Brown v. Austen, 35 presumption never obtains where the deed Barb. R. 341 ; 10 Mass. E. 458 ; 5 B. & C. is proved to have been in the hands of the 671. A return or redelivery of the deed grantor, at a period subsequent to its date, to the grantor does not revest the title. Elsey v. Metcalfe, 1 Denio, E. 323. Jackson v. Anderson, 4 Wend. E. 474; * McConnell v. Brown, Litt. Sel. Ca. Jackson v. Page, 4 Wend. E. 585 ; 6 East 459. E. 86 ; 3 T. R. 156 ; 2 John. R. 84 ; 12 « Jackson v. Eiohards, 6 Cow. R. 617 ; ih. 73, 355, 488 ; and, if it has been once Jackson v. Phipps, 12 Johns R. 421 ; Shep. delivered, so as to take effect, a redelivery Touch. 57. is of no effect, and cannot limit its opera^ ^ Jackson v. Bodle, 20 Johns. R. 187; tion ; Verplanck v. Sterry, 12 J. R. 536 ; Belden v. Carter, 4 Day, R. 66 ; Wheel- Kellogg V. Band, 11 Paige R. 59. A sub- right v. Wheehright, 2 Mass. R. 447 ; sequent pledge of the deed with the Maynard v. Maynard, 10 Mass. R. 456. grantor merely gives him an equitable ' Church v. Gilman, 15 Wend. R. 656. lien. Jackson v. Parkhurst, 4 Wend. R. ^ Hatch v. Hatch, 9 Mass. R. 307 ; 4 869. Day E. 66. Scragham v. Wood, 15 Wend. 2 Co. Lit. 36 ; Church v. GOman, 15 E. 545. Wend. R. 656 ; 1 R. S. 738. " Hedge v. Drew, 12 Pick. R. 141; El- 3 Tesey, Jr. 206 ; 2 Bl. Com. 307 ; 1 sey v. Metcalf, 1 Denio, 323. Johns. Cas. 250. Since the Revised Stat- i° Chess v. Chess, 1 Penn. R. 32; Gil- utes of New York, the presumption that a -bert v. N. A. Ins. Co. 23 Wend. 43. 10* 114 LAW OP LANDLORD AND TENANT. [CHAP. V. ■would be evidence of delivery to him.^ 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, is not, 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 presumption is rebutted, if the original deed is produced by the grantor, or if neither the grantee, nor any person on his behalf, 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 cannot be proved by showing the declarations of the grantor's in- tention to deliver prior to its delivery, and of the subsequent pos- session of the land by the tenant, with the assent of the grantor.^ And it is further to be observed, that there can be no valid delivery of a deed after the grantor's death; nor of one which has been execiited in blank, to be filled up afterwards by the person to whom it was delivered.^ § 169. 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 are performed, and then to be delivered over to the grantee. Until the condition is performed and the deed delivered, 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 delivery ; ^o notwithstanding either of the parties may have died before the condition has been performed.il And if it be duly delivered in the first instance, it will operate, although the grantee afterwards suffer it to remain in the custody of the grantor .^^ But there cannot be a delivery to the grantee himself as an escrow, to take effect upon the performance of a condition not expressed in the deed ; and if so delivered, it 1 Maynard v. Maynard, 10 Mass. K. C. 317 ; 6 Mod. E, 217 : 3 Prest. Abstr. 456 ; 12 ib. 456 ; Eathbun v. Eathbun, 6 104. Barb. E. 98. u Hunter v. Hunter, 17 Barb. E. 25, 2 McKinney v. Ehoads, 5 "Watts, E. 343. 82 ; Touchstone, 59. 8 Elsey D. Metcalf, supra. 12 1 Johns. Ch. E. 240; B. & C. 671. * Powers V. Eussell, 13 Pick. E. 69. Where the deed of A. and the note of B. s Eoberts v. Jackson, 1 Wend. E. 478. were deposited by them with C. to be de- " Jackson v. Eichards, 6 Cow. E. 617. livered in exchange when both parties ' Hale V. Hills, 8 Conn. E. 39. should direct, it was held TO be a dehrery * See, ante, § 149, note 1. Jackson v, in escrow. It is not necessary that the term Leeh, 12 Wend. E. 105. escrow should be used when a deUvery is s Green v. Putnam, 1 Barb. E. 500 ; 6 made to a third person, in order to pre- Cow. E. 619 ; 2 Hill E. 299. vent its being absolute : the intent of the » Euggles V. Lawson, 13 Johns. E. 385; parties will prevail. Clark v. GiflFord 10 Jackson v. Catlin, 2 Johns. K. 248; 3B. & Wend. E. 310. SEC. II.] THE EXECUTION OP A LEASE. 115 becomes at once 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 delivered to a third person to be kept during the pleasure of the parties, and subject to their further order: such a delivery is not an escrow, but a mere de- posit.3 And a deed, actually 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 con- sidered an escrow^ But a deed, delivered as an escrow, will not take effect until the condition is performed, except where the oper- ation of the conveyance would be absolutely defeated, unless the first delivery should be permitted to have effect.^ § 170. The execution of a lease by parol is complete without a witness; but, when the lease is by deed, two witnesses are required for its valid execution, in New Hampshire, Vermont, Rhode Island, Connecticut, Ohio, Pennsylvania, Georgia, Illinois, and Indiana. In Delaware, Tennessee, 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, Massachusetts, Ken- tucky, and Maryland, 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 before the proper officer without any witness, is sufficient to entitle it to be recorded.'^ But the execution of a written lease, whether sealed or not, is not complete without a proper revenue-stamp affixed thereto, and, if such stamp is not so affixed at the time of its execution, the lease will be deemed invalid, and of no effect.^ Where several par- 1 Arnold v. D^itrick, 6 Paige, E. 310. and, if not duly acknowledged previous to Worrall v. Munn, 5 N. Y. E. 229. Law- its delivery, its execution and delivery ton V. Sager, 11 Barb. E. 349. A deed shall be attested by at least one witness, delivered to the grantee is not held as an or, if not so attested, it shall not take eflFect escrow; such delivery either takes effect as against a subsequent purchaser or in- absolutely , or it is void and works nothing, cumbrancer, until so acknowledged." Braman v. Bingham, 26 N. Y. R. 483. That a deed without any witness or ac- 2 Gilbert v. N. A. Ins. Co., supra. kowledgment is good as against the grau- 8 James v. Vanderheyden, 2 Paige, 385. tor. See 2 Bl. 296 ; Champlain & St. * Simonton's Estate, 4 Watts, 180. Lawrence E. E. Co. ;;. Valentine, 19 Barb. 6 Jackson v. Rowland, 6 "Wend. E. 666. E. 484. ^ 4 Kent, Com. 449 ; Wicks v. Caulk, * A lease, agreement, memorandum, or 5 Har. & Johns. ; 1 S. & E. 72 ; 6 Peters, contract, for the hire, use, or rent of any 124. land, tenement, or portion thereof, where ' 1 N. Y. K. S. 738, § 137. "Every the rent or rental value is three hundred grant of a freehold estate shall be sub- dollars per annum or less, pay s ^^i cenis ; scribed and sealed by the person from where the rental value exceeds the sum whom the estate is intended to pass, &c. ; of three hundred dollars per annum, for 116 LAW OF LANDLORD AND TENANT. [CHAP. V. ties join in one agreement, only one stamp is necessary.^ And if a material alteration is made in a lease, or in an agreement for a lease, which has been already stamped, it must be restamped.^ § 171. The statute laws of every State in the Union require that all conveyances of land; except certain chattel interests, in order to secure the priority to which they may be entitled, shall be recorded, after being first acknowledged or proved, and, with slight modifica- tions, agree with the laws of New York in this respect.^ In New York, all conveyances of land, including leases for three years and upwards, must be recorded in the county in which the premises are situated ; and, if not so recorded, are void as against any subsequent incumbrancer or purchaser of the same premises, in good faith, and for a valuable consideration, whose conveyance shall be first duly recorded.* There is nothing, however, in any of these statutes to invalidate a lease as between the parties themselves, which has not been recorded. They were intended to protect lona fide purchasers of property against secret or fraudiilent conveyances, but give this protection only to such as record their conveyances, and thus warn others from taking a subsequent conveyance of property which has already been conveyed to them.^ It is also to be observed, that, although the record of a deed is constructive notice of its existence to all the world, yet a subsequent grantee or lessee, who has re- corded his lease, will not be entitled to a preference over a prior lessee, if he had actual notice of the first lease at the time he took his conveyance ; for actual notice of a deed is equivalent to record- ing it.^ each additional two hundred dollars, or allowed in Delaware, Tennessee, Georgia, fractional part thereof in excess of three and Indiana; eight months in Virginia; hundi-ed dollars, ffty cents. An Act to pro- six months in Pennsylvania, Maryland, vide Internal Revenue, Sj-c, passed June North and South Carolina, Alabama, IIU- 30th, 1864, sec. 151, sched. B. & sec. 158. nois, and Ohio ; three months in Missouri Under the EngUsh Stamp Act, an un- and Mississippi ; and fifteen days in New stamped lease is not on that account in- Jersey. vahd; but.it cannot he read in eridence, if ^ Tuttle w. Jackson, 6 Wend. E. 213; required to be produced in court. Bux- Jackson v. Cady, ib. 140 ; State of Con- ton V. Cornish, 12 Me. & Wels. 426. necticut v. Bradish, 14 Mass. R. 296 ; 4 1 Davis V. WilUams, 13 East. R. 232. Greenl. 20 ; Tart v. Crawford, 1 McCord, 2 Eeed v. Deane, 7 B. & Cr. 261. E. 265; "West v. Eandall, 2 Mason, E. 8 4 Kent, Com. 456. 206 ; Colby v. Kenniston, 4 N. H. E. 262; * 1 E. S. 702, § 38. Except leases in Jackson w. Winslow, 9 Cow. E. 3; Jack- the counties of Albany, Ulster, Sullivan, son v. Philhps, ih. 94-120. That a judg- Herkimer, Dutchess, Columbia, Delaware, ment creditor is not a purchaser within the and Schenectady, which need not be re- purview ofthe statute, see Den!'. Eichman, corded ; ib. § 63. '1 Green's E. 55. In New York, the term 6 Jackson dem. Men-ick t). Post, 9 Cow. "purchaser "is construed to embrace every E. 120 ; 10 Johns. E. 466. In some of the person to whom any interest in real estate States, a period is allowed within which is conveyed for a valuable consideration, deeds must be recorded ; and, according to including every assignee of a lease or Chancellor Kent, 4 Com. 457, a year is mortgage. 2 E. S. 762, § 37. CHAP. TI.] BIGHTS AND LIABILITIES INCIDENT TO A TENANCY. 117 CHAPTER VI. OF EIGHTS AM) LIABILITIES GENERALLY INCIDENT TO A TENANCY. § 172. Before proceeding to examine the particular rights and liabilities of the respective parties to a demise, it may be found neither impertinent nor unprofitable to consider some of those obli- gations of a general character, which are necessarily incident to the relation of landlord and tenant, but which do not usually fall within the scope of those coYenants, which the parties generally 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 as regards other persons who are strangers to the contract. The landlord retains certain rights over the property, although he has parted with his posses- sion ; while the tenant assumes obligations as soon as he is clothed with that character. By virtue of his occupation, a tenant may be- come liable to support and repair bridges, highways, division-fences, and party-walls ; to make good any damage that may be occasioned by his neglect to keep the premises in a safe condition, or to use them in a reasonable and prixdent manner. His possessory interest will enable him to defend himself against all trespassers upon his premises, as well as against a disturbance, nuisance, or other offen- sive erection so near his dwelling as to render it useless or unfit for habitation. If there are ways, commons, fisheries, or other privi- leges 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 ■\yithout considering what eifect such operations will produce upon the adjoining house or land. We propose cursorily to examine each of these rights and duties in their order. 118 LAW OP LANDLORD AND TENANT. [CHAP. TI. SECTION I. ON THE PART OF THE LANDLORD. § 173. After the making of a contract of lease, the right of pos- session, in legal contemplation, remains in the lessor until the time when the contract is to be consummated by the entry of the lessee. After this 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 same period, are confined to the protec- tion of his reversionary interest merely ; that is, to the maintenance of actions for such injuries as would, in the ordinary course of things, continue to affect the reversionary interest after the deter- mination of the lease, whether the injury be committed by the tenant or a stranger, and whether the term has expired or not.^ Of such, are actions for breaking the windows of a house ; or for stopping up a rivulet, whereby the timber on the estate becomes rotten, and the like.^ The injury complamed of by the landlord, however, must be of such a character as to permanently affect the inheritance.^ 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.* But, if any one interferes with his tenants so far as to disturb their enjoyment, and thereby causes 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 1 Starr v. Jackson, 11 Mass. R. 519 ; A reversion is an estate which remains in French v. Fuller, 23 Pick. R. 104 ; Jack- the grantor and his heirs, and which is to son V. Pesked, 1 M. & S. 234 ; Burr. 2141 ; take effect in possession upon the deter- Alston V. Scales, 9 Bing. 3 ; 4 B. & A. 72; mination by its own limitation of an out- Bower V. Hill, 1 Bingh. N. C. 555 ; Little standing particular estate. A right to V. Pallister, 3 Greenl. 6 ; 14 East, 489 ; enter and resume the possession for a Ray V. Ayres, 5 Duer, K. 494 ; Austin v. breach of a condition is not a reversion. Hudson R. R. Comp. 25 N. Y, R, 334. Phenix v. Comrs. of Emigration, 12 How. 2 Bedingford v. Onslow, Lev. 3 209 ; Pr. R. 1, 1 N. Y. R. S. 723, § 12. Ray V. Ayers, 5 Duer, R. 494. 6 Aldridge v. Stuyvesant, 1 Hall,R. 214. 3 Queen's College, Oxford v. Hallett, « Shadwell v. Hutchinson, 2 B. & Ad. 14 East, R. 489. 97. * Baxter v. Taylor, 4 Barn. & Aid. 72. SEC. I.] ON THE PART OF THE LANDLORD. 119 of trover.^ But he may not bring an action of trespass for an in- jury to tlie land while there is a tenant for years lawfully in posses- sion ;^ for the ground of such an action is injury to the immediate possession, and the plaintiff must have been in either the actual or constructive possession when the trespass was committed. § 174. The landlord generally retains the right to go upon the premises peaceably, for the purpose of examining what waste or injury has been committed by the tenant or other person, first giv- ing notice of his intention ; but 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 tres- pass.^ He may, however, use all ways appurtenant to the premises for the purpose of demanding rent, making such repairs as are ne- cessary to prevent the waste of the premises, or for removing an obstruction.* And, even where the rent is payable in hay or other produce, to be delivered from the farm to the landlord, he is not entitled to go upon the land and take the hay, until it is delivered to him by the tenant, or severed and set apart for his use.^ § 175. The landlord's liabilities, in respect of possession, are, in general, suspended as soon as the tenant commences his occupation ; if, therefore, a stranger be injured by the ruinous state of the prem- ises, or if the fences are suffered to fall into decay, whereby a stran- ger's cattle stray, and are injured or lost, the landlord is, in neither case, answerable.^ But it is otherwise if he has undertaken to keep the premises in repair, and the injury was occasioned by his neglect 1 Bewick v. Whitfield, 3 P. "Wms. 267 ; the possession of his tenant whose lease Berry v. Head, Palm. 327 ; s. o. Cro. Car. depends upon conditions which haye not 242 : Schermerhorn v. Buell, 4 Den. K. been violated is a trespasser. McGee v. 422. Gibson, 2 Kentucky K. 358. 2 Campbell v. Arnold, 1 Johns. 11.511; * Proud v. HoUis, 1 B. & C. 8; Perley Tobey v. Webster, 3 ib. 408 ; Catlin v. v. Watts, 7 Mees. & Wels. 601 ; 7 Pick. Heyder, 1 Ver. R. 375. The technical E. 76. In England, it has been held that action of trespass is here intended, in con- an immediate lessee may recover, as special tradistinction to the actions of trespass on damages, from an under-lessee who holds the case before referred to. See, post, § under similar covenants, the costs of de- 764. fending an action, as well as the damages 3 Heermance v. Vernoy, 6 Johns. R. 5 ; under it, brought by the original lessor for Blake v. Jerome, 14 Johns K. 406 ; 24 want of repairs ; because, during the term Wend. R. 188 ; 17 Conn. R. 288. The of the under-lessee, he could not have en- New- York Court of Common Pleas has tered for the purpose of repairing without held, that a landlord has no right to enter making himself a trespasser. Neale v. upon his tenant's premises during the term Wyllie, 5 D. & R. 442; 3 B. & C. 533 ; 3 without the lessee's consent, although the C. & P. 557 ; 6 ib. 196. tenant may have quit the possession of ^ Dockham v. Parker, 9 Greenl. E. 137. them, no right of entry having been re- * Cheetham v. Hampson, 4 T. H. 318 ; served in the lease. Shannon v. Burr, Mayor, &c. v. Codies, 2 Sandf. B. 301. 1 Hilt. E. 39. A landlord's entry upon 120 LAW OP LANDLORD AND TENANT. [CHAP. VI. to make the necessary repairs ,i or by the negligence of the work- men whom he had employed to make such repairs.^ Nor is he answerable to third persons for a nuisance erected on the premises by a tenant ; unless he knew, or had reason to believe, when he let the premises, that they would be used in such a way as would amount to a nuisance.^ But, if he renews the lease, or grants ano- ther lease, with the nuisance upon it, he becomes liable to an action after such renewal ; for he thereby affirms the nuisance, and it may be deemed to have been continued by himself.* Every continuance of a nuisance is, in judgment of law, a fresh nuisance ; ^ but, in case it be continued by the alienee of the party who erected it, the remedy lies against both of them, and not against the alienee alone for continuing the nuisance.^ SECTION II. ON THE PART OP THE TENANT. § 176. We have seen that the rights, as well as the liabilities, of a tenant for life attach upon the execution and delivery of the lease ; but, in the case of a lease for years, they commence upon the mak- ing of the contract. Before the tenant enters into possession, he acquires an interest 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 entitled to an estate for years, to commence in futuro, once enters, and is put 1 Payne v. Rogers, 2 H. Black. 350. 306. The King u. Pedley, 1 Ad. & El. 2 Leslie v. Pounds, 4 Taunt. 949. 827. This case seems to have gone further 5 Fish V. Dodge, 4 Den. R. 311. If the than the statement in the text, and seems owner so constructs and adapts a building, to indicate that if the owner of land erect that, in its ordinary use, it would be inju- a building, of which the occupation is rious and offensive to the plaintiff, and likely to prove a nuisance, or of a nature cast unwholesome odors into his house, he to require particular care to prevent the is liable for the nuisance thus caused by occupation from becoming a nuisance, and his tenants. But if it proved a nuisance leases, and the nuisance afterwards occurs by reason of a special unusual circum- from want of care, or otherwise, on tlie stance, that is, by water in the cellar, the part of the tenant, the landlord is respon- defendant is not liable for the nuisance, sible. This case is severely criticised by unless he knew, or had reason to believe, Cresswell, J., in Rich v. Basterfield, 11 when he let the building, that the use of London Jurist, 696 ; but is sustained by it in the ordinary mode would prove a the American cases, nuisance. Piokard v. Collins, 23 Barb. * Vedder v. Vedder, 1 Den. R. 257. R. 444. 6 Brown v. Woodworth, 5 Barb. R. 550. * Waggoner v. Jermaine, 3 Den. R. ' Whitney v. Allaire, 1 Comst. R. 305. SEC. 11. j ON THE PART OP THE TENANT. 121 out of possession, he cannot afterwards assign his term to a stran- ger ; for, by his entry, the estate for years became actually vested, and being after that defeated by the entry of a stranger, the lessee has only a right of entry left in him, which the policy of the law will not suffer him to transfer, because it is a mere right, of action.^ The tenant's right of possession becomes complete on the " day fixed by the agreement for the commencement of the term ; and, when that day arrives, he is entitled to the possession of the premises in the same condition they were in on the day of the de- mise. If possession is withheld, he may maintain an action of ejectment against either the landlord, or a stranger who wrongfully withholds the possession ; or he may, at his option, bring an action for damages against the landlord for a breach of his agreement.^ His term of years is also liable to be sold under an ezecution against him, like any other chattel ; although the judgment'is not a lien upon it, either at common law or by statute.^ He may also un- derlet, unless he is restrained by the terms of his lease from doing so.* He becomes responsible for all his covenants in the lease from the time the term commences, although he refuses to take posses- sion of the property .5 And if another person enters into the pos- session of thed°emised premises, by the tenant's consent, he will be considered, in respect of the landlord's rights, as substituted in the tenant's place, although he may disclaim all privity with the ten- ant.6 § 177. If the landlord refuses to give the lessee possession, pur- suant to the agreement, he renders himself liable, not only to an action of ejectment, but also for any damages which the lessee may have sustained by the .wrongful withholding of possession ; and the measure of damages in such a case is said to be the difference be- tween the rent reserved in the lease, and the yearly value of the 1 Cro. Eliz. 15; 5 Rep. 124, a; 2 Roll, the lease and the commencement of the Ahr. 850. In Delaware, an incoming term, does not discharge the tenant from tenant is held to he entitled, from custom the obligation of his covenant to pay rent, and necessity, to enter before his term see Wood v. liuhbell, 10 N. Y. R. 488. • commences, for the purpose of filUng the ^ Ex parte "Wilson, 7 Hill (N. Y.), R. ice-house on the premises. State v. M'- 150 ; and see People v. Westeryelt, 17 ib. Clay, 1 Barring. 520. 674 ; 20 ib. 416. See, ante, § 14, note. ^ Trull V. Granger, 4 Selden, R. 115. * Jackson v. Harrison, 17 Johns. R. 66. If, before the day named for taking pos- ^ Ballasis v. Burbriche, Ld. Ray, 17 ; session, the lessor wrongfully removes a Holt, 199; Doug. 461. Under a joint lease fixture so as to render the dwelling unfit to two tenants, the occupation of one is for habitation, the lessee may refuse to take sufficient to make both Uable for the rent, possession. Cleves v. Willoughby, 7 Hill, Kendall v. Garland, 5 Cush. R. 75. R. 83. And whether a destruction of the " Howard v. EUis, 4 Sandf R. 369. premises by fire, between the making of 11 122 LAW OP LANDLORD AND TENANT. [CHAP. TI. premises to the lessee. ^ If he cannot put the lessee into possession of all the land he contracted to give him, the latter is under no oHigation to accept part, and will he justified in abandoning the premises.2 And though the lease is delivered after signing to the party interested, with a stipulation that such delivery shall be sub- ject to the landlord's behig satisfied with the reference 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 having been made, the answer given by the party referred to was such as rea- sonably 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. After taking possession, the tenant is at once invested with all the rights incident to possession, and is entitled to the use of all the privileges and easements appurtenant to the tenement, and to take such reasonable estovers and emblements as are at- tached to the estate, unless restrained by special a^-reement. He may maintain an action against any person who disturbs his posses- sion, or trespasses upon the premises, though it be the landlord himself, who has, in general, no right to enter and repair, unless there be a stipulation to that effect, or the repairs are necessary to prevent waste.* If a stranger enters and commits waste, the ten- ant will still be liable to an action for that waste by his landlord, and will be left to his remedy over against the stranger.^ And, ^ TruU V. Granger, supra. a person is in the peaceable possession of 2 Hay V. Cumberland, 25 Barb. R. 594. premises, with the acquiescence of the If he prefers to occupy, but does not ob- owner for a month, and has taken such tain possession of all he hired, he is liable, possession from one who claims to have on a quantum meruit, for the part occupied, had a parol lease from the owner, and was Hurlbut V. Post, 1 Bosw. K. 28; 25 Wend, in possession for two months, he is to be E. 4:43. Under a lease for years, the de- deemed rightfully in possession until his struetion of the building by fire, before the tenancy is properly terminated, by notice commencement of the term, absolves the or otherwise. The owner may not forcibly lessee, and entitles him to have the lease eject him, nor will he be justified in clos- cancelled; for, until the term commences, iug up the entrance to the premises, or in the contract is purely executory, and pos- refusing to allow the tenant to remove liis session is a condition precedent to any goods. And in an action for damages in liabihty for rent. Wood v. HubbeU, 5 such a case, the owner will be held liable Barb. R. 601 ; s. c. 10 N. Y. R. 479. for the value of the goods detained, as well ^ Ward V. Smith, 11 Price, R. 19 ; Coe as for the injury done by breaking up the V. Clay, 3 Moore & Pay. 57; 5Bingh. 448. business of the tenant. Marquat v. La * Leader v. Noxon, 3 Wils. R. 461 ; 3 Targe, 5 Duer. R. 559 ; Dickmson v. Lev. 209 ; 2 Black. R. 924 ; 2 B. & Ad. 97 ; Goodspeed, 8 Cush. R. 119. Barker v. Barker, 3 C. & P. 557. Where ^ Cook v. The Champlain Tr. Co. 1 SBC. II.J ON THE PART OP THE TENANT. 123 even after his term has expired, he may still recover damages for an injury sustained during its continuance.^ As occupant, he is, primd facie, liable to answer for any neglect in the repair of high- ways, fences, or party-walls ; it being generally sufficient, except where the statutes have otherwise provided, to charge a man for such repairs by the name of occupant.^ He is also 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 covering an old shaft of a mine, whereby the plaintiff's horse fell down and was killed ; * for not jjroperly covering a coal- hole, or cellar entrance, sewer, or railing of an area opening into the highway, or the like ; ^ and that the premises were in the same condition before the defendant came into possession of them is no defence.^ For the rule is general, that, where a man is in posses- sion of fixed property, he must take care that the property is so managed that other persons are not injured ; and that whether the property is managed by his own immediate servants, or contractors with them, or their servants.'' § 179. He must also be careful to preserve the boundaries of the land demised to him ; for if he permits them to be lost or destroyed, Denio, 91. The situation of a tenant is Norton v. "Wiswall, 26 Barb. R. 618. And analogous to that of a common carrier to wliere a town was compelled to pay dama- prevent collusion (and not on the pre- ges for a defective sidewalk, attached to sumption of actual collusion) ; both are premises in the possession of a tenant, charged with the protection of tlie property the tenant was held liable to re-imburse the intrusted to them, against all but the acts town for such payment. Lowell j). Spauld- of God and the King's enemies. Per ing, 4 Cush. E. 271. Chambre, J., in Attersol v. Stevens, 1 ^ Marriott v. Stanley, 1 Scott, N. R. Taunt. R. 198. And, in Louisiana, if he 392; s. c. 1 M. & G. 568. abandons the premises before the expira- * Lybray v. White, 1 M. & W". 435. tion of the lease, he is at once bound for ^ 2 H. Black. 349; 4 Taunt. 649; 5 B. the rent of the whole term, and may be & C. 559. sued. Reynolds v. Swain, 7 Louisiana R. ^ Coupland o. Hardingham, 3 Camp. 125; Christy v. Casanave, 2 Martin E. R. 398. N. S. 451. ' Laughter v. Pointer, 5 B. & Cr. 552; 1 2 Roll. Abr. 551 ; Symonds v. Sea- Quarman v. Burnet, 6 M. & Wels. 499. bourne, Cro. Car. 325 ; 8 Lev. 209 ; Holt, Defendant directed his servant to remove N. P. C. 543. snow and ice from the roof of his house, 2 Regina v. Bucknall, Ld. Eaym. 792 ; giving no specific instructions as to the Rider v. Smith, 3 Term R. 766 ; 4 ib. manner of doing it. The servant procured 318. The occupant, and not the owner of another person to assist him. The ice was land, is bound to repair drains and sewers ; so negUgently thrown from the roof as to hence, in a suit by an adjoining owner, for kill a person passing upon the sidewalk non-repair thereof, the declaration must underneath ; and it was uncertain whether allege occupation by the defendant. Russel the particular piece which caused the death V. Sheaton, 3 Ad. & El. (n. s.) 449. A was thrown by the servant or the assist- lessor is not liable for the wrongful acts of ant ; but it was held that the defendant a lessee or his servants during the eontinu- was responsible for the whole performance ance of the lease ; for over such acts the of the work, and it was immaterial lessor has no control. Blake r. Ferris, 1 whether the injury was occasioned by the Seld R. 48 ; Heirastreet v. Howland, 5 particular act of the one or the other. Den, R. 68; lAla.E.366; 22 Vt. R. 170; Althorp v. Wolfe, 22 N. Y.R, 355. 124 LAW OF LANDLORD AND TENANT. [chap. TI. SO that the lessor's premises cannot be distinguished from his own, he must either restore the land specifically, or give him other land of equal value. And this obligation extends to cases where there are several lessees.^ He is bound to the performance of all such duties as the ordinances of any city or town may, from time to time, impose upon him, by virtue of his residence within the bounds of such in- corporation.2 He must, at the same time, respect the rights of his co-tenant, and will render himself liable to an action for obstruct- ing or disturbing him in the use of the premises.^ As co-tenant, he has no right to make improvements on the property and charge his co-tenant with a proportion of the expense, without the consent of such co-tenant, express, or implied ; although he may make such repairs as are necessary to preserve the property, at the ex- pense of all the joint-owners, without asking their consent.^ 1 Attorney-General v. Fullerton, 2 Ves. & B. 263; Willis u. Parkinson, 1 Swanst. 49, 2 Eex V. St. Lukes, Burr. 1053; MU- wood V. Coffin, Black. E. 1320; 8 B. & A. 21. ^ Per WUde, J., in Keay v. Goodwin, 16 Mass. K. 3. In a case arising in the city of New York, the first story, with the basement and under ceUar, of a four-story store, was leased to the plaintiffs, and the tlnree upper stories to the defendant, at • the same time, each with the appurte- nances. 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 holts to fasten on either side. There was a hatchway in the floor of the same entry, leading to the basement and cellar, over wliich hatch a tackle and fall were placed, to raise and lower goods, the wheel of wliich was in the attic, and was worked by ropes passing down through the respective floors. The keeping of the folding-doors open in business hoiu-s 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 persons passed through the folding-doors. In a contest as to the rights of the respective parties, the Supe- rior 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, mak- ing use of them in good faith, and not keeping the hatch open unnecessarily ; that the tenant of the first fioor had the right to keep the folding-doors open dur- ing business hours in the daytime, tree 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 fioor. Browning & Hull r. Dalesme, 3 Sandf. E. 13, per Oakley, J. * Taylor v. Baldwin, 10 Barb. E. 626; Story Eq. Jur. § 1235; Boring v. Bacon, 4 Mass. E. 575 ; Converse v. Fenn, 11 tb. 325; Down i'. Badger, 12 26. 65; Mumford V. Brown, 6 Cow. R. 475 ; CofBn v. Heath, 6 Met. E. 80 ; ante, §§ 114-117. One ten- ant in common cannot maintain an action against his co-tenant in trespass for an entry upon the land. Van Orman v. Phelps, 9 Barb. E. 500 ; nor for the de- struction of the property by negUgence, Moody V. Buck, 1 Sandf E. 384; nor to recover documents relating to the joint estate, although an action of waste, or an injunction to stay waste, will lie as be- tween joint tenants or tenants in common, Hawley v. Clowes, 2 John. C. E. 122; 12 John. R. 484 ; 2 N. Y. E. S. 334, § 3 ; 3 Bro. 621 ; 7 Ves. E. 589 ; 16 ib. 128. Persons who occupy the same building, and have each the privilege of using the waterpipes, can only be held responsible for damages resulting from their negligent use or care, on proof of negUgence on their own part ; and neither is responsible for the negUgence of the others ; though they may be jointly liable if their obligar tions under the lease are joint. Moore v. Goedel, 7 Bosw. E. 591. SEC. II.] ON THE PART OF THE TENANT. 125 § 180. The tenant must also regard the interest of his landlord, in respect to his right of possession, and give due notice of any attempt made to dispossess him. The Revised Statutes of New York, in order to secure the landlord against collusion between his tenant and third persons, and thereby prevent any change of pos- session to the prejudice of the landlord, oblige every tenant to whom a declaration 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 such tenant holds.^ And the attornment of a tenant to a stranger is absoltitely 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 W 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 for- feited.^ If, however, a tenant should acquiesce in the wrongful act of a stranger, it will not bind the landlord when he regains posses- sion ; as, if he suffers windows, newly opened by his neighbor, to remain unobstructed for more than twenty years, and so 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. At common law, any person, in case of actual necessity, and to prevent the spreading of a fire, might prostrate a building in a block 'or street without being responsible in trespass or other- wise ; and the sufferer had no legal redress for any injury he might 1 1 K. S. 748, § 27. Under this statute ^ /j, 744^ § g, .< Wherever the relation , it has been held by the Court of Appeals of landlord and tenant shall have existed in New York, that a landlord, or other between any persons, the possession of the person, who is entitled by statute to be tenant shall be deemed tlie possession of substituted in the place of, or joined with, the landlord, until the expiration of twenty the defendant in an action of ejectment, years from the termination of the tenancy ; who, without causing himself to be made or, where there has been no written lease, a party, defends such suit unsuccessfully, until the expiration of twenty years irom in the name of the original defendant, will the time of the last payment of rent ; be ordered to pay the costs of the plaintiff, notwithstanding such tenant may have ae- on motion, after execution against the de- quired another title, or may have claimed fendaut on the record has been returned to hold adversely to his landlord. But unsatisfied. The Farmers' Loan, &c. v. such presumption shall not be made after Kursch, 1 Selden, R. 558. This statute the periods herein limited." 2 E. S. 294, does not apply to a notice of an intention § 13. to apply for a sale of the property under a ^ Jesse v. Gilford, Burr. 214 ; Daniel v. surrogate's decree for payment of debts. North, 11 East, 372. Eigney v. Coles, 6 Bosw. R. 479. 11* 126 LAW OP LANDLOED AND TENANT. [CHAP. TI. have sustained, against the individual who did the act.^ But the injured party, in all cases where his property was taken and de- stroyed for the public good, was entitled to compensation from the public.^ The Constitution of the United States affirms the com- mon-law principle, and provides that private property shall in no case be taken for public uses, without, just compensation being made.^ Not only are the rights of the owner of the building pro- tected, but the principle extends 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 decided in a case arising out of the great fire which occurred in the city of New York, in December, 1835 ; where the court recognized the princi- ple, that, in case of necessity, and to prevent the spread of a fire, the ravages of a pestilence, or any other great public calamity, the pri- vate 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 ; but that, in all such cases, as well as in the event of a building being destroyed by a mob, the public, or the coi'poration of the city within whose bounds such de- struction happens, are liable to make good all damages which either landlord or tenant may suffer thereby.* It was admitted, however, 1 Eespublica v. Sparhawk, 1 Dall. E. to apply to cases where property is taken 357; 2 Kent, Com. 338; White v. City by the United-States autliorities for public Council, 2 Hill, S. C. K. 571. In the salt- nses. But the legislatures of all the States petre case, 12 Co. R. 13, it was resolved have also provided some mode of com- by all the Judges, that for the common- pensation for an injured individual, where wealth, a man shall suifer damage ; as for his property has been taken or destroyed saving a city or a town, his house shall be for the public good. plucked down, if the next be on fire ; and * The Mayor, &c. of New York v. a thing for the commonwealth every man Lord, 17 Wend. R. 285 ; 18 ib. 126 ; same may do without being liable to an action, v. Pentz, 24 ib. 668. But owners of goods And the same principle was afterwards who have no estate or interest in the adjudged in Moses's case, p. 63, which was building destroyed, have no claim to dam- an action of trespass against the defend- ages for their destruction. Stowe v. The ant, who was a passenger in a barge, for Mayor, &c., 25 Wend. R. 157 ; 2 Den. R. throwing out the goods of the plaintiflF in 464. The fact that the owner is insured a storm; where the com-t held that, in does not affect Ins right to compensation, case of necessity, and to save the lives of nor entitle the corporation to a deduction the passengers, it was lawful for the de- for the amount recoverable or received fendant to cast the goods out of the barge, upon the policy ; for the insurers would See also Dyer 36 ; Bac. Ahr. &c. be entitled to subrogation, or to a reduc- 2 Per Buller, J., in Governor, &c., v.^ tion for the amount received by the owner Meredith, 4 Term E. 797. from the city. The Mayor, &c. u. Pentz ; ^ Const. U. S. art. 5 of Amend. This supra. provision of the constitution is understood SEC. III.J DIVISION-FENCES AND PAETY-WALLS. 127 in the same case, that no damages are recoverable if the building, or the property 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 magis- trate was given.-"- § 182. As third persons are liable' to both landlord and tenant for injuries committed by themselves, so, on the other hand, both landlord and tenant may respectively become liable to such third persons ; for, where a landlord has made himself liable to repair the premises, and a stranger is injured by his neglect, he will be liable to a special action on the case.^ But, where it is the business of the county or parish to repair, neither landlord nor tenant will be liable.^ If a stranger, whose goods have been, or are about to be, distrained upon the tenant's premises, in order to redeem them, is 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 under-tenant, have beeu so taken.^ But an under-tenant, whose goods have been sold under a distress by the original landlord for rent due from his immediate tenant, cannot maintain an action /or 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 III. DIVISION-FENCES AND PAETY-WALLS. § 183. We have observed, that the tenant, by virtue of his occu- pation, is generally liable to third persons for the consequences of 1 See also Pentz v. iEtna Fire Ins. erty and the protection of his interests, Comp., J. Paige R. 568. may collect rent from tlie under-tenants, 2 Payne v. Rogers, 2 H. Black. 350. and procure new ones, for the benefit of ^ RusseU V. Men of Devon, 2 Term R. the lessee ; and, if he has never refused to 671. Either one or the other, according place the property under the lessee's con- to circumstances, may be liable for a trol, on his complying -with the lease, such variety of wrongful acts, which the reader acts will not be considered as a cancelling may find enumerated in sections 775, of the lease ; and the lessee and his surety 776, &c. will be bound for the difference between * Sapsford v. Fletcher, 4 Term R. 511. the amount of the rent payable by the 6 Exall V. Partridge, 8 Term R. 308. lease, and that received from the under- ^ Moore v. Pyrke, 11 East, 52. Where tenants. Roumage v. Blatvier, 11 Rob. a lessee for years abandons the premises. La. R. 101. the lessor, for the preservation of the prop- 128 LAW OP LANDLOED AND TENANT. [CHAP. VI. a neglect to keep up the repairs of division-fences, party-walls, and highways ; his liability in this respect being co-extensive with that of the landlord.! At common law, no person was bound to fence his land against the cattle of another ; and, for any trespass they might commit, their owner was answerable, whether they entered from his own close, the close of a third person, or from the high- way .^ But, by statute, it is now generally 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, except where the owner of either of the adjoining lands shall choose to let such land lie open. The exception, however, is by no means a desirable privilege to exercise, for the owner of all domestic ani- mals 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 such lands, but is himself liable to make compensation for any trespass they may commit, whether he knows of their vicious propensities or not.^ Fences, it is said, were de- signed 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 injur- ing domestic 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, or may impound the animals, to procure satisfaction for the damage done by them.* § 184. By the Statutes of New York, the liability to maintain existing fences that have been once established has been regulated 1 Taylor u'. Whitehead, 2 Doug. R. any cattle but such as were rightfully in 745. the adjoining close. If not hound at com- 2 Stafford u. IngersoU, 3 HiU, N. Y. K. mon law to fence his land, he was, never- 38. theless, hound to keep his cattle on his 2 HoIIaday v. Marsh, 3 "Wend. E. 142 ; own ground, and prevent them from escap- Little V. Lathrop, 5 Greenl. R. 356 ; Brush ing. The legal obhgation of the tenants II. Brainard, 1 Cow. E. 78 ; Clark v. of adjoining lands to make and maintain Brown, 18 Wend. B. 221 ; 4 Burr. 2092 ; partition fences, where no prescription 2 South. E. 815 ; 7 Watts & L. 367 ; Van exists, and no agreement has been made, Leuven v. Lyke, 1 N. Y. R. 615. This rests entirely on statutory provisions, and subject has been fully considered in a case trespass will lie against the owner of cattle arising in Massachusetts, in which Mr. enteringon the grounds of another, though Chief Justice Parsons laid down the law there be no fence to obstruct them, unless with great precision. After stating the he can protect himself by statute, prescrip- principle just mentioned, and that it might tion, or agreement." Rust v. Low, 6 be otherwise by force of prescription, Mass. R. 90 ; Little v. Lathrop, 5 Greenl. where such prescription exists, he adds, R. 356. "If hound by prescription to fence his * Mathews v. Kestel, 2 E. D. Smith, close, he was not bound to fence it against R. 90. SEC. III.J DIVISION-FENCES AND PARTY-WALLS. 129 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 the party, in default, 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 alBfords him a remedy, by calling in the fence- viewers, to appraise the ordinary damages, that may accrue to his lands, crops, fruit-trees, shrubbery, and fixtures, connected with the land.^ This remedy applies only to adjoining owners ; and does not extend to injuries sustained by the death of cattle, caused by eating unripe corn in the iield of the party who is in default for not keep- ing 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 miscondtict of a neighbor.^ If dis- putes about the proportions of fence to be made by each arise, they must be settled by the fence-viewers of the place in which the lands are situated ; and, then, if either party continues to neglect his pro- portion of the fence, after a month's notice to repair, the other party may make the 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 com- mitted 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 common-law remedy .^ § 185. But unless such a fence has been divided by an agree- 1 1 E. S. 354, § 37, amended by law to ascertain, are such only as ordinarily 1838, p. 253. Where a person shall have accrue from defective fences ; and they chosen to let his land lie open, if he shall have no right to assess the value of cattle afterwards enclose it, he shall refund to which escape through a defective fence the owner of the adjoining land a just pro- into a corn-field, and eat so much corn portion of the value, at that time, of any that they die. lb. A zig-zag or Virginia division-fence that shall have been made fence is not a proper fence. Herrick v. by such adjoining owner ; or he shall Stover, 5 Wend. B. 580 ; but see Ferris v. build his proportion of such division- Van Buskirk, 18 Barb. E. 397. As to en- fence. 1 N. Y. E. S. 353, § 31 ; Hewitt v. croachment of fences upon highway, see Watkins, 11 Barb. R. 409. Case v. Thompson, 6 Wend. E. 634 ; 2 Stafford v. Ingersoll, supra. Spicer v. Slade, 9 J. E. 359 ; Fitch v. ^ Clark V. Brown, supra. The dam- Commrs. of Kirkland, 22 Wend. E. 132. ages which fence-viewers are authorized 130 LAW OP LANDLORD AND TENANT. [CHAP. VI. ment between the parties, 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 deficiency. If either neglects to make or repair his proportion of it, after notice, the other may make the whole, and recover the contributory share of the one so 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 law- fully placed on A.'s land, and escape thence to the land of ano- ther, 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 pasturing 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.^ Although if A. had the care and custody of such cattle for the purpose of depasturing them, he would also have been liable in the same manner, and to the same extent, as the owner.* § 186. 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, without regard to the sufficiency of the enclosure. But if they are such animals as are usually re- strained 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 exception 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 1 Matter of Rensselaer & Sar. R. R. Co., only in favor of the occupants of adjoining 4 Paige R. 658. Any one occupying land lands. Stafford v. IngersoU, supra. as tenant at will or at sufferance is en- ^ Rust v. Low, supra. titled to the benefit of the statute of divi- ^ Stafford v. IngersoU, supra. sion-fences, and may maintain an action * Barnum v. Vandusen, 16 Day, E. 60. for the expense of repairing the portion of ^ Barnum d. Vandusen, supra, 12 Johns, the adjoining owner. The statute is for R. 433. the benefit of occupants, without respect ^ 12 Mod. R. 336 ; Ld. Ray. 606, 1683. to the particular estate enjoyed. Bronk v. Poor Tray's trespasses are usually visited Becker, 17 Wend. R. 320. But it applies upon his own head without ceremony, by an ounce of lead. SEC. III.] DIVISION-FENCES AND PARTY-WALLS. 131 any other purpose. Subject to the right of passage and to make repairs, the soil, together with the grass and other herbage growing thereon, are private property. If cattle, therefore, 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 high- way on which he placed them, cannot avail himself of the insuffi- ciency of the fences, in excuse 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 jDursuit 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.^ § 187. 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, he may remove his fences, after having given sufficient notice of his intention. Yet, if he removes his fence without hav- ing 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 removal ; 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 the 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 statu- tory perrqjssion is to remit the parties to their common-law rights 1 Avery v. Maxwell, 4 N. H. E. 36 ; having no right to permit his cattle to go Wells V. Howell, W Johns. R. 142. The at large on the defendant's land, could not same principle applies to a common ; and, recover. Bush v. Brainerd, I Cow. E. 78. in an action for digging a pit on a com- ^ Stackpole v. Healey, 16 Mass. E. 35 ; mon, by reason of which the plaintiff's 1 Arch. N. P. 358. If several animals he- mare, straying there, fell into the pit and longing to different owners unite in doing was killed, it was held that no action lay ; mischief, each owner is liable for the dam- for the plaintiff had no right in the com- age done by his own animal only. Van mon, and so, as against him, the digging of Heenburgh v. Tobias, 17 Wend. E. 562; the pit was lawful. BIyth o. Topham, 1 Denio E. 495 ; 2 Conn. E. 206 ; 2 Vt. 9. Cro. Jac. 158. So, where maple-sugar And, in the absence of proof as to how had been left by the defendant in buckets much damage was done by each, the pre- in an open shed on hi# own unenclosed sumption is that all the cattle did equal woodland, and the plaintiff's cow came in damage. Partenheimer v. Van Orden, 20 the night and drank the syrup, which Barb. E. 479. caused her death, it was agreed by the ^ Eichardson v. McDougal, 11 Wend, court, that, although the defendant was E. 46. guilty of gross neghgence, yet the plaintiff, 132 LAW OP LANDLORD AND TENANT. [CHAP. VI. and duties.^ So, with respect to the erection of buildings, every proprietor of land, whether he be a landlord or tenant, is his own judge of the propriety of building on it, or leaving it vacant ; and, when he does build, of the manner and extent of his buildings. In the absence of statutory provisions, he may build with what material he pleases, and is under no obligation of giving his neighbor the use or advantage of his land, by way of support or easement of any de- scription. If a stranger enters upon his unoccupied land, erects buildings, or makes permanent improvements iipon it, he is not obliged to recompense the stranger for any portion of the expense on recovering possession of the land. And if the stranger, under these circumstances, should remove such buildings from the land before the owner recovers possession, he is liable in trespass for their value .^ § 188. Neither is there any obligation upon the proprietors of adjoining building-lots in a city, to unite in huilding a, party-wall on the dividing-line of such lots. The common use of a wall adjoining lands belonging to different owners is indeed primd facie evidence that the wall and the land on which it stands, belong to the owners of those adjoining lands in equal moieties as tenants hi common.^ But if the precise extent of land originally belonging to each can be ascertained, the presumption 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.* A party^wall, however, is generally built on the common property of the two owners of adjoining tenements ; and it is usirally built at the joint expense, each one continuing owner of his land, with an easement or right to the use of the wall. The statute relating to party-walls does not make thenj, nor the land on which they stand, common property : each one owns in severalty the portion of wall standing on his own land, with no qualification, except that neither has a right to pull it down, so long as it remains sound, without the consent of the other. But this principle, it must be observed, applies only to a wall which is ad- 1 HoUaday v. Marsh, 3 Wend. R. 142. third person, gives him no ground of 2 Moore v. Cable, 1 J. C. R. 385 ; Gil- action. Bronk v. Becket, 17 Wend. E. let u. Marquand, 5 I. E. 85; Dewey v. 320; 12 Law & Eq. E. 520; Eyan v. Osborn, 4 Cow. E. 329 ; 7 *. 229. Nq Rochester & Syr. E. K. Co., 9 How. Pr. one but the adjoining owner or possessor E. 458. has any interest in the duty or obligation ^ Cubitt v. Porter, 8 B. & Cr. 257. of another to build or maintain a division- * Peyton v. Mayor, &o., of London, 9 fence ; and the omission to do so, though B. &. Cr. 726. the want of the fence results in injury to a SEC. III.] DIVISION-FENCES AND PAETY-WALLS. 133 mitted 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. If such a wall is casually destroyed, or becomes ruinous, there is no obligation resting upon either owner to rebuild it, or to unite in building another.^ § 189. 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 wall, for the purpose of rebuilding, he is bound to re-instate it in a reasonable time, and with the least incon- venience. If it was necessary to repair the old wall, the neighbor is bound to contribute ratably to the expense of the new wall ; but he is not bound to contribute towards building it higher than the old one, nor with more costly material : all such extra expense must be borne exclusively by him who pulls down and rebuilds.^ 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 unquestioned, and is not affected by the nature of the use and occupation of the adjoining building.* § 190. The right to use an ancient wall, in support of an adjoin- 1 Sherred v. Cisco, 4 Sandf. E. 480. and pay for the privilege of doing so, is a In this case, a party-wall had been built at mere License, without any interest in the joint expense, and was destroyed by fire, land, and need not be in writing. McLar- and the owner of one of the lots proceeded, ney v. Pettigrew, 3 E. D. Smith K. Ill; without the concurrence of the owner of 6 Hill, 61 ; 2 Seld. R. 279. the other, to build a new wall on the site ^ Campbell v. Mesier, 4 Johns. Ch. E. of the old one. The owner of the other 354; 6 ih. 21; Weld v. Nichols, 17 Pick, lot subsequently built on his lot, and E. 538. The co-tenant is not liable for rested his beams in the new wall ; and he the expense of such improvements as are was justified by the court in doing so, al- not necessary repairs, mqde in the absence though he had not contributed to the of a contract express or implied ; and no expense of erecting such wall. contract will be imphed from the mere fact 2 Matts V. Hawkins, 5 Taunt. E. 20; that the improvements were beneficial, and see 4 Man. & Gr. 714. An agreement Taylor v. Baldwin, 10 Barb. E. 626 ; 6 for a party-wall was held not to prohibit Cow. E. 475 ; 6 Paige, 405. the extension of a building beyond it, in * Partridge v. Gilbert, 3 Duer, E. 184 ; front and in the rear. Wolfe v. Frost, 4 s. o. on appeal, 15 N. Y. E. 601. Held Sandf. Ch. E. 72. An agreement between otherwise where the plaintiflTwas a lessee, adjoining owners that one may insert the with a covenant for quiet enjoyment, beams of his building into the other's wall, Armstrong v. Schermerhorn, 2 N. Y. Leg. 12 134 LAW OP LANDLORD AND TENANT. [CHAP. VI. ing building, stands upon a diiferent 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 sufficient to estab- lish an easement by prescription, the owner of the adjoining house would be entitled to have his beams inserted, 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 build- ings, 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 under- pin 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 buildings on them, with a wall standing partly on each, intended to furnish a support to both buildings, and which is used as such, and makes a conveyance of either house and lot with its appurtenances, he thereby grants an easement for the siipport of the house conveyed, in so much of the wall as stands on the other lot, and makes it a party-wall. After sxich 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 eiliher 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 expense.^ 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 for years, although it may be a party-wall as between themselves, it will create no easement bind- ing on the owner of the reversion in fee, that can prevent him, when Obs. 40. In New York, Philadelphia, on each side ; and, if the same can he Washington, and other cities, party-walls equally divided, each party shall make and buildings are specially regulated by and keep in repair one-half. Disputes statute. As to the effect of a city custom concerning the division of the wall, and on this subject, see Bradbee v. The the parts to be made and repaired by each. Governors, &c., 2 Dowl. P. C. 164. or as to its suiiiciency, are to be settled 1 An ancient wall is one that was built by an alderman or assistant of the ward, to be used, and has in fact been used, as a If the wall cannot be conveniently divided, party-wall for more than twenty years, by it is to be made and kept in repair at the the express permission and continuous joint expense. So much of the wall as is acquiescence of the owners of the land on higher or lower than the city regulation, which it stands. Eno v. Del Vechio, 4 to be at the individual expense of the Duer R. 53, 63. owner. And, on neglect of one party to 2 3 Kent's Com. 437. The corporation contribute, the other may make the whole of the city of New York, by an ordinance wall, and recover from his co-tenant his of 1833, have regulated partition fences proportion of the expense. and walls. It requires them to be made " Eno v. Del Vechio, 4 Duer, R. 53 ; and maintained by the owners of the land s. o. 6 ib. 17 ; 4 Man. & Gr. 714 ; 2 Car. & SBC. m.J DIVISION-FENCES AND PARTY-WALLS. 135 the term expires, from dealing with his property as if no such wall had been erected. ^ § 191. As a man may abate any 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 extending 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 common.* A man may, also, justify an entry on his neighbor's land, to retake his own property, which has been removed thither by 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 into 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 responsible 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 act, or negligence, he could not justify the entry .5 K. 250. Where the owners of adjoining tree entered into the close of the defend- lots by agreement construct a wall partly ant, and were nourished by his soil ; • that on each lot, for the common support of the plaintiff cut down the tree, carried it their buildings, the wall so constructed, if into his own close, and sawed it into used as such for twenty years, becomes a boards, and the defendant entered, and party-wall in the legal sense of the term, took and carried away some of the boards and the owner of each house has an ease- prout ei bene licuit. On demurrer to the ment for its support in that portion of the plea, it was contended to be bad ; for, al- wall which stands on the adjoining lot. though some of the roots of the tree are in 1 Webster v. Steyens, 5 Duer, E. 553. the defendant's soil, yet the body of the 2 Palmer, 536. tree being in the plaintiff's soil, all the 8 Welsh V. Nash, 8 East, 394 ; 5 B. & residue of the tree belongs to him also. A. 600 ; Beardslee v. French, 7 Conn. E. And of this opinion is Bracton ; but if the 125 ; 11 ib. 177. The ease of Master a. plaintiff had planted a tree in the soil of PoUier was an action " of trespass quare the defendant, it shall be otherwise ; quod clausum freqit et asportavit the plaintiff's curia concessit." EoUe, E. 114. See, also, boards. The defendant justified, that Betts v. Lee, 5 Johns. E. 348. there was a great tree which grew between * Dubois v. Beaver, 25 N. Y. E. 123. the close of the plaintiff and that of the ^ Per Tindal, C. J., in Anthony v. defendant, and that part of the roots of the Haney, 8 Bingh. 192. 136 LAW OP LANDLORD AND TENANT. [CHAP. VI. SECTION IV. LIABILITY FOR NEGLIGENCE. § 192. The tenant's general obligation to repair also renders him responsible for any injury a stranger may sustain, by his neglect to keep the premises in a safe condition ; as by not keeping the covers of his vaults sufficiently closed, so that a person walking in the street falls throiigh, or is injured thereby .^ If he places any unrea- sonable obstruction in the highway adjoining his premises, he will be liable to be indicted for a public nuisance, as well as to an action for damages at the suit of an individual injured. If he repairs or im- proves 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.^ The law will tolerate such a partial and temporary obstruction as may be necessary for pur- poses of business, as in receiving and delivering goods from a ware- house, or the like ; provided the public convenience does not suffer. In a case which arose in Philadelphia, 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, so as to render the passage less convenient, but not entirely to obstruct it. Mr. Chief Justice Tilghman, deliv- ering the opinion of the court, says, " The necessity which justifies such a nuisance must be a reasonable one. No one has a right to throw wood or stone in the street at his pleasure ; but, forasmuch as fuel is necessary, he may throw wood in the street for the pur- 1 Cheatham v. Hampson, 4 Term E. tractor's servants, the owner or employer 318. Persons who cause to be constructed is not responsible upon the principle of an area under a highway are bound, at respondeat superior. Vanderpool v. Husson, their peril, to keep it so covered that the 28 Barb. R. 194 ; Blake v. Ferris, 1 Seld. way would be as safe as before the area R. 48 ; 4 ib. 222. Where the owner of was built ; and when the covering, from several lots, upon the rear of which were any cause, becomes unsafe, they are re- tenements, commenced to build upon the sponsible. It is no defence that the front, and opened a way through an ad- covering was done by contractors, who joining lot for his tenants, of which he agreed to make it safe ; or that the cover- notiiied them ; held, that a visitor who, ing became unsafe by the wrongful act of in attempting to enter the, tenements, a third party. Congreve v. Smith, 18 passed into the unfinished buildings in the N. Y. R. 79 ; Congreve v. Morgan, *. 84. night time, and fell through the floor and 2 Where work is done under a special was injured, could not recover for his in- contract, and an injury to an individual juries. Roulston v. Clark, 3 E. D. Smith, accrues from the negligence of the con- 366. SEC. IT.] LIABILITY FOR NEGLIGENCE. 137 pose of having it carried into his house, and it may be there a rea- sonable time. So, because building is necessary, stones, brick, lime, and other materials, may be placed in the street, provided it can be done in a convenient manner. On the same principle, a merchant may have his goods placed in the street, for the purpose of removing them into 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." ^ § 193. It is well settled, also, that no man can habitually carry on any part of his business in the street, to the annoyance of the public ; and 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, which is not to be prevented from passing freely along the highway. Thus, where the defendant, being a lumber merchant, occupied a small yard close to the street, and, from the smallness of his premises, was obliged to deposit long pieces of lum- ber in the street, and to have them sawed up there, before they could be carried into his yard, it was suggested to be necessary for his trade, and that it occasioned no more inconvenience than dray- men letting down hogsheads of beer into the cellar of a publican ; but Lord BUenborough said, " If an unreasonable time is occupied in delivering beer from a brewer's dray into the cellar of a publi- can, this is certainly a nuisance. A cart or wagon may be unloaded at a gateway, but this must be done with promptness. So as to the repairing of a house ; the public must submit to the inconveniences occasioned necessarily in repairing the house ; but if this inconven- ience be prolonged for an unreasonable time, the public have a right to complain, and the party may be indicted for a nuisance. The 1 The Commonwealth v. Passmore, 1 sengers, Eex v. Cross, 3 Camp. R. 224. Ser. R. 217. Any unauthorized continu- Or for a man to erect a wharf on the pub- ous obstruction to the free passage of the lie property, although its erection might public along a street, amounts to a nui- be beneficial, and sufficient room be left sance. Davis v. The Mayor, &c. 11 N.Y. for a free passage in the rirer, Ees. v. E. 506. As for a wagoner to keep one or Caldwell, 1 Dall. E. 150. Or to divert more wagons constantly before his store- part of a public navigable river, whereby house, in the street, although there was its current was weakened, and made un sufficient room for two carriages to pass able to carry vessels of the same magni- abreast on the opposite side of the street, tude as before. King v. Mansfield, Noy, King V. Russell, 6 East, E. 427. Or for a 103 ; Hart v. The Mayor, &c. of Albany, 9 coachman to stand with his coach in any Wend. R. 571. See post, as to nuisance, particular part of the street for an unreas- §§ 200-207. enable length of time waiting for pas- 12* 138 LAW OF LANDLORD AND TENANT. [CHAP. VI. defendant in this case is not to eke out the ineonvenience of his own premises hy talcing in the public highway into his lumher-yard ; and if the street be narrow, he must remove to a more commodious situ- ation for carrying on his business." ^ § 194. And a tenant will be responsible for an obstruction, if he furnishes the occasion, or does an act which is likely to cause others to assemble around his premises, and produce such obstruction in the street. The defendants were accordingly held guilty of a nui- sance, 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 unreasonable time, wait- ing for an opportunity of loading with swill and slops from the dis- tillery ; although the defendants themselves used all reasonable diligence and despatch in the delivery, and were in the pursuit of a legal business. And 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. Nor will any length of time enable a party to prescribe for a public nuisance, and it is therefore immaterial how long the practice had prevailed, or when the distillery was built.2 § 195. A person is liable also in damages for keeping a dog upon his premises which is accustomed to bite mankind ; even although it may not be his, if he harbors or allows it to be at, and resort to, his premises ; ^ but he miist be aware that the dog was accustomed to bite.* A man cannot recover damages for an injury received 1 The King ;;. Russell, 6 East, E. 427 ; entered and was sererely wounded, it was Eex V. Carlisle, 6 C. & P. 636 ; Eex v. held he could not maintain an action, Jones, 3 Camp. 230. As to what encroach- having voluntarily brought the injury ments upon a highway amount to a nuis- upon himself. Illot v. Wilkes, 3 B. & ance, see Peckham v. Henderson, 27 Aid. 304. Barb. R. 207. » McKane v. Wood, 5 Car. & P. 1. 2 The People v. Cunningham & Harris, ^ Hogan v. Sharp, 7 Car. & P. 755 ; 1 Denio, E. 524 ; in an able opinion of 1 Ld. Eay. 109 ; 2 ib. 1583 ; Van Leuven Mr. Justice Jewett. Where that which is v. Lyke, 1 N. Y. E. 615; s. i;. 4 Den. R. done by a person on his own land is illegal 127. Where a dog, which has the vicious and punishable as such ; or, although not habit of attacking and biting other dogs illegal, if it be an act which may probably without being incited to do so, is suffered endanger human Ufe, as the setting of to go at large, and he attacks and bites the spring-guns, he may be responsible even dog of a person lawfully coming upon the to a voluntary trespasser for injuries thus premises where he is, his owner is liable sustained. Bird v. Holbrook, 4 Bing. 628 ; in damages for the value of the dog so Jordin v. Crump, 8 M. & W. 782^ But killed, if it appears that such owner had even in such a case, if the plaintiff had knowledge of the viciousness of the dog. notice that deadly engines were placed in Vicious dogs are a nuisance, and their a wood into wliich he, notwithstanding, owners must either kill them, or confine SEC. IV.J LIABILITY FOE NEGLIGENCE. 139 from the bite of a dog placed in a yard for the protection of out- houses, unless he had such reasonable and justifiable caiise 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 pursuit of his ordmary business. And if he was lawfully upon the premises, the circum- stance of there being a notice, warning persons to beware of the dog, will be no answer, 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 caution.^ The owner of sheep, however, which had been worried by a dog in a field, is not justified in shool^ ing the dog, when in another field some distance off ; as it cannot be said to be done in protection of his property .^ 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 complained of; an allegation of a knowledge of general ferocity is not, it would seem, sufficient to charge the defendant.* § 196. By the 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. And an action on the case would always lie by a les- see for years against his under-tenant, for so negligently keeping his fire that the premises were burned down.^ But 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 them as soon as they have notice of their nuisance ; and, if allowed to run at large, dangerous habits, or answer in damages may be killed by any one. Putnam v. for injuries inflicted by them. Wheeler v. Payne, 13 John R. 312; Hinckley v. Em- Brant, 28 Barb. R. 324. erson, 4 Cow. R. 861. 1 Sarch v. Blackburn, 4 Car. & P. 297 ; * Hogan v. Sharp, 7 C. & P. 755 ; Hart- Mood. & Malk. 505; Blackman v. Sim- ley v. Halliwell, 1 B. &A. 620; Beck v. mons, 4 C. & P. 188 ; Howland v. Vincent, Dyson, 4 Camp. 198 ; 1 M. & S. 238. 10 Metcalf, 371. ^ "Si mon feu per misfortune arde les ^ Curtis V. Mills, 5 Car. & P. 489. In hiens d'autre home, it avera action nur le the cases of May et ux. v. Burdett, 16 L. case vers may. — 2 Hen. 4, 18." Roll. I. (2B.), 64; and Jackson t). Smithson, 15 Abr. Action on Case B., p. 1; Tuberyil L. I. (Exch.), 331, the judges held that the i. Stamp, 1 Salk. 13. The Revised Stat- keeper of any mischieTous animal danger- utes of New York (1 R. S. 696, § 1) also ous to his neighbor is bound to keep it provide that any person negligently set- securely at his peril ; and if any injury is ting fire to his own woods, or negUgently done by it, negligence in the owner is pre- suffering a Are kindled upon his own wood, sumed to have been the cause of the or fallow land, to extend beyond his own injury; for that there is negligence in land, shall forfeit treble damages to .the keeping it, after notice of its propensities, party injured thereby. Lawyer v. Smith, 8 Wells V. Head, 4 Car. & P. 568. A 1 Denio, R. 207. ferocious dog, that attacks persons, is a 140 LAW OP LANDLORD AND TENANT. [CHAP. VI. estate, any fire should accidentally begin ; and this statute has been generally re-enacted in the United States. The protection aiforded 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 still lies against a person upon whose premises a fire commences, through the negligence of him- self or his servants, and is productive of injury to his neighbor.^ And a tenant is still 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 re- build, at his own expense, within a reasonable time.^ As a general rule, also, if a man, acting according to the best of his skill, and with ordinary prudence, makes an improvement on his land, and not foreseeing that it will produce an injury to his neighbor, un- wittingly injures him, he is still answerable for the damage.^ Thus where an action was brought by the plaintiff, for an injury to his reversion occasioned by the defendant making a rick of hay on his land, so near some cottages of the plaintiff that they were burned by the spontaneous ignition of the hay. It was proved that the hay was put up in a damp or green condition, when, as is well known, it will, from natural causes, ferment, 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, 1 Filliter v. Phippard, 12 London Ju- jured thereby, he will have a remedy by rist, 202 ; 1 Blacks. Com. 431, to the con- action on the case, if there be sufficient trary. A tenant is not hable, in the ground to impute the act to the negligence absence of an express agreement, for the or misconduct of the defendant or his ser- accidental destruction by Are of the build- vants. See also, Mauld v. Wilson, 2 Bar- ings occupied by him. Wainscott v. Sil- rington, 443. vers, 13 Ind. R. 497. a Barnard v. Poor, 21 Pick. R. 878 ; 2 Co. Lit. 53, b; 1 Ves. R. 462. In Todd v. Collins, 1 Halst. R. 127. Plain- the case of Clark v. Foot, 8 Johns. R. 421, tiff's wood was on the defendant's land, Clark sued Foot to recover damages sus- and defendant having given plaintiff a tained by Foot's setting fire to the plain- reasonable notice of his intention, and re- tiff's woods. The evidence was that the quiring him to remove it, set fire to his defendant's servant, by defendant's order, fallow, and the wood still remaming upon set fire to certain fallow ground belonging the land was burned ; and the defendant to the defendant, which fire ran into the was held not to be liable for any damages, plaintiff's woodland. The court said the in the absence of wilful wrong or gross question was whether there was negli- negligence. Bennett v. Scott, 18 Bai-b. gence on the part of Foot or his agent; for R. 347. In case of damages from burning Foot was as much accountable fortheneg- fallow, the mere fact that the fire was set ligence of his servant, whilst employed in in a dry time, in July, upon low swampy his business, as if the fire had spread by ground, previously burnt over and desti- his-own act, It is lawful for a person to tute of brush, does not show negligence, burn liis fallow ; but, if his neighbor is in- Stuart v. Hawley, 22 Barb. R. 619 SEC. IV.] LIABILITY FOR NEGLIGENCE. 141 in the manner of enjoying liis own rights ; since an ordinary degree of prudence wonld have prevented the accident, or suggested the propriety of placing his liayricks furtlier off from his neiglibor's premises.^ § 197. It is a sound legal maxim, that requires every person so to use his own rights and property, as to do no injury to those of his neighbor; and the law does not so much regard the intent of the actor, as the loss and damage of the party suffering. Upon this principle, a person acting in the exercise of his undoubted right of property, and doing a 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 rea- sonable care and precaution on his part. Thus, if a man lops a tree, and the boughs fall upon another ; or if he has land through which a stream runs, that turns his neighbor's mill, and he lops the trees growing on its side, so that they accidentally impede the prog- ress of the stream, and hinder the mill from working, he will be liable for all damages. Or if, in building his own house, a piece of timber 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 another, an action lies, although he did a lawful thing ; for the rea- son, that he who receives damage ought to be recompensed.^ For a similar reason, a shopkeeper, who invites the public to his shop, is liable for neglect on leaving a trap-door open, without any protec- tion, by which his customers suffer injury.^ § 198. Wherever, from the situation of the premises, the acts of a person, though done entirely on his own property, may be pro- ductive of injury, he is bound to exercise such a degree of care and caution as shall prevent 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 wrongdoer. Thus, in an action for negligently permitting the flap of the defendant's cellar to remain unfastened, 1 Sutton V. Clarke, 6 Taunt. E. 44; ■' Pamaby i^. Lancaster, 11 A. & E. Cook 0. The Champlain Transp. Co. 1 223-243. No liability however results Denio 91. from the commission of an act arising from 2 Vaughan v. Menlove, 4 Scott, 244; inevitable accident, or which ordinary s. c. 3 B. & C. 468. See also, Eex v. human care and foresight are unable to Commissioners of the Paghan Level, 8 B. guard against. Hob. R. 134 ; 4 Mod. 405 ; & Cr. 355 ; Wyatt v. Harrison, 3 B. & A. 1 Bingh. 213 ; 8 Wend. R. 391 ; Harvey 871' Aldridge v. Great^Western Railway v. Dunlop Hill & D. Supp. 193; Center Co. 4 Scott, N. E. 156. v. Finney, 17 Barb. E. 94. 142 LAW OP LANDLORD AND TENANT. [CHAP. TI. whereby it fell upon and broke the plaintiff's legs, the chief jus- tice, in delivering the opinion of the court, said the defendants were bound to use such precautions as would, under ordinary cir- cumstances, have preserved the flap from falling down ; but if it was so secured, and a third person, over whom they had no con- trol, came and removed it, the defendant would not be liable ; and that the question for the consideration of the jury was, whether the defendant and his servants did use due and ordinary care in placing up the flap, so as to prevent an accident. It might have been secured by a string or hook, it is true ; but a tradesman, under such circumstances, is not bound to adopt the strictest means. He is only boimd to use such care as a reasonable man, looking at it, would say was sufficient ; and if he does use such care, and a wrongdoer comes and displaces it from the position in which it has been placed, it being that in which a careful man would place it, he will not be answerable, but the party must look for compensation to the wrongdoer who displaced it.^ And in another case, against a publican, for leaving open a trap-door on the pavement, in the evening, after the lamps were lit, he having just previously opened it for the purpose of admitting a barrel of beer into his cellar, the court held that the case turned upon whether a proper degree of caution had been used by the de- fendant. That if he had not exercised such a degree of care in using his cellar as would prevent a reasonable person, acting also with an ordinary degree of care, from receivuig any injury, he would be liable ; but not, however, unless the plaintiff himself had used due caution in the matter, and was not guilty of negligence in running into danger.^ § 199. As a general rule of law, also, it may be stated, that, in cases of damage arising from accidents of the character we have been considering, where there is equal negligence on both sides, without any intentional wrong on the part of either, or if the plain- tiff, whether by his own negligence or otherwise, has contributed, 1 Daniels u. Potter, 4 Car. & P. 262. Ordinary care means that care and fore- Negligence is defined to be, any violation sight which men of ordinary prudence are of the obligation which enjoins care and accustomed to make use of. Johnson v. caution in what we do. It is the omission Hudson River R. E. Co., 6 Duer, R. 633 ; of a duty. Tonawanda R. R. Co. «. Mun- while ordinary neglect is the omission of ger, N. Y. R. 349; 1 Duer, R. 571, 583. that care which every man of common And see Mayor, &e. v. Bailey, 2 Den. R. prudence takes of his own concerns. Scott 433 ; 8 Barb. R. 868 ; 24 ib. 273. v. Depeyster, 1 Edw. R. 513. 2 Proctor u. Harris, 4 Car. & P. 337. SEC. IT.J LIABILITY FOE NEGLIGENCE. 143 substantially, to prodxice the accident, no action lies.^ But while a party, on the one hand, cannot recover damages for an injury which he has brought upon himself, neither will he, on the other, be permitted to shield himself from an injury which he has done, because the party injured was in the wrong, unless such wrong contributed materially to produce the injury ; and, even then, it would seem that the party setting up such defence is bound to use common and ordinary caution to be in the right. ^ If, however, a person, in the lawful use of his property, exposes it to accidental 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. Thus 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 protection against the negligent acts of persons wilfully passing the same with vessels or carriages pro- pelled by steam-engines, by which such buildings are set on fire. And, in an action for the damages he sustains, it is competent for the plaintiff to show that experienced persons, in such employ- ments, were accustomed to tise precautions which the defendants neglected ; the tendency of such evidence not being to establish a local law or usage.^ 1 Brownell o. Flagler, 5 Hill (N. Y.), see 1 Denio, 99; 5 ib. 255; Kelseyz;. Bar- E. 282 ;■■ Wilds v. Hudson R. E. Co., 24 ney, 2 Kern. B. 425. N. Y. R. 430 ; Sills v. Brown, 9 C. & P. ^ New-Haven Steam & Transp. Co. v. 605 ; Wynn v. Allard, 5 Watts & Ser. E. Vanderbilt, 16 Day, E. 421. For case of 524; 3 M. & G. 59 ; Bridge v. Grand June, concurring negligence, see Owen u. Hud- E. Co. 3 M. &M. 248 ; Bro^vn v. Maxwell, son E. E. E. Co., 2 Bosw. E. 374. If the 6 Hill (N. Y.), E. 592; Rathbun v. Payne, plaintiff has used ordinary care, he cannot 19 Wend. E. 399. One who complains of he said to have contributed to the negli- another's neghgence should himself be gence. Center v. Finney, 17 Barb. E. 94 ; without fault; and where a plaintiff; at the Eakin v. Brown, 1 E. D. Smith, 36. And time of the alleged injury, was trespass- that this doctrine is to be cautiously ap- ing on the defendant, or otherwise wrong plied, where the fault of the defendant has in the particular act complained of, such been clearly established, see Clark v. Kir- deUnquency alone, with very limited ex- wan, 4 E. I). Smith, 21. ceptions, is a decisive answer to any claim ^ Cook v. The Champlain Transp. Co., for damages founded on the defendant's 1 Denio, E. 91. negUgence. Brownell v. Flagler, supra; 144 LAW OF LANDLORD AND TENANT. [CHAP. VI. SECTION V. OP NUISANCES. § 200. The tenant's possessory interest will enable him to main- tain actions growing out of any act by which his possession is immediately affected, or the consequences of which are in any way injurious to his possession.^ And such actions may be, either to recover damages for an injury already sustained, or for an injunc- tion to prevent further injury, or both. The injury may be, either to the dwelling-house by rendering it uncomfortable or untenant- able ; or to the land, as by overflowing it with water ; or to some incorporeal hereditament annexed to the estate, as the obstruction of a right of way.^ And, if the injiiry affects the reversion, both landlord and tenant may have distinct actions for the same wrong- ful act ; as for an injury to trees, the landlord for injury to the body of the tree, and the tenant in respect to its shade or fruit.^ If the trees have been cut down, the tenant may have an action of trespass against the wrongdoer 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 habitation ; as, for instance, a pigsty, lime-kiln, smith's forge, tobacco-miU, tannery, or privy .^ § 201. Any offensive erection, which, from its nature, may be an annoyance, and from its situation actually becomes so, is a nui- sance. Thus it has been held, that a slaughter-house in a city is, primd facie, a nuisance to the neighborhood ; and that, to consti- tute it such, it is not necessary that the noxious business shotdd endanger the health of the neighborhood. It is sufficient if it be 1 Evans a. Evans, 2 Camp. R. 191 ; Starr v. Jackson, 11 Mass. R. 519. Shad- ante, § 178. well v. Hutchinson, 4 C. & P. 333. 2 Trower v. Chadwick, 3 Bing. N. C. * Berry v. Head, Palm. 327 : 4 Co. R. 334; s. 0. 6 ib. 1; Panton v. Holland, 17 62, b; Cro. Car. 242; 2 Inst. 303. John. E. 92; Dodd v. Holme, 1 Ad. & El. ^ Aldred's Case, 9 Rep. 59, a; Penrud- 493 ; Thurston v. Hancock, 12 Mass. R. dock's Case, 5 Rep. 100 ; Wynn v Alard 212; Acton v. Blundell, 12 M. & W. 824. Watts & S. E, 524: Howel v. McCoy 3 8 Biddesford v. Onslow, 3 Lev. E. 209; Eawle, 256. SEC. v.] OP NUISANCES. 145 offensive to the senses, and renders the enjoyment of life uncom- fortable.^ Upon this principle, a coal-yard may be so negligently conducted as to become a nuisance to the neighboring inhabitants, although it is not necessarily such ; and only becomes so by being^ so carelessly used as to become obnoxious to the neighborhood.^ 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, by which an individual is wounded, he may recover damages against the party guilty of the nuisance, although the fire may not have been occasioned by any negligence of the defendant.* Even a pri- vate dwelling-house may be kept in so negligent and filthy a man- ner as to become a nuisance.^ § 202. It is a well-settled principle, that every individual is en- 1 Catlin V. Valentine, 9 Paige, E. 575 ; State V. Purse, 4 McCord, E. 472. Nui- sance, in its largest sense, signifies any thing that worketh hurt, inconyenience, or damage. 3 Bl. Com. 215. It is either public, annoying all the members of a community, or it is private, injuriously aflfecting tlie lands, tenements, or heredi- taments of an individual. To make a noxious trade a nuisance, it is not neces- sary that it should endanger the health of the neighborhood. It is sufficient if it produces that degree 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. K. 157 ; 2 Car. & P. 485. A fat-boiling establishment is a nuisance if it infects the air with noisome smells and gases, prejudicial to health. Cropsey v. Murphy, 1 Hilt. R. 126. But whatever is permitted by a statute, which the legislature is com- petent to enact, is not in judgment of law a nuisance. Leigh v. Westervelt, 2 Duer, E. 6J.8 ; Harris v. Thompson, 9 Barb. E. 350 ; 10 ib. 26 ; "WilUams v. N. Y. Central E. E. Co. 18 Barb. E. 222. Any excess or irregularity in the exercise of a power conferred by statute, however, may be a nuisance pro tanto. Eenwick v. Morris, 7 ilill, E. 575 ; s. c. 3 ib. 621 ; 6 *. 271. The legislature declared a stream to be a public highway, and afterwards enacted a law authorizing 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 naviga- tion, but did not legalize the dam if other- wise a nuisance. Clark v. The Mayor, &c., of Syracuse, 13 Barb. E. 32. ^ Barrow v. Eichard, 8 Paige, E. 351. Eussellt;. 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 re- farded as a nuisance, and an action will e in favor of the injured person. Carhart V. The Auburn Gaslight Comp., 22 Barb. E. 297. And it is sufficient to show that the property has been rendered less valu- able for the purposes to which the owner has seen fit to devote it. Pirst Bapt. Church V. Schenectady & Troy E. R. Co., 5 Barb. E. 79 ; 6 *. 313. Stationing be- fore the door of a mock-auction room a man with a placard inscribed " Beware of mock auctions," was held to be a private nuisance, in Gilbert v. Mickle, Mayor of New York, 4 Sandf Ch. R. 357. 8 People V. Sands, 1 John. E. 78. 4 Myers v. Malcomb, 6 Hill (N. Y.)., R. 292 ; Eex v. Taylor, 2 Stra. E. 1168 ; 3 B. 6 C. 556 ; Pierce v. Dent, 7 Cow. E. 146 ; 4 Wend. 25 ; Mayor, &c., v. Purze, 3 Hill (N. Y.), R. 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 premises; but for a nui- sance 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 Dutcher, R. 544. 13 146 LAW OP LANDLORD AND TENANT. [CHAP. TI. titled to the undisturbed possession and lawful enjoyment of his own property ; but this right is qualified and limited by an equal right in 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 prosecute such business as he chooses upon his premises, but he cannot erect a nuisance to the annoyance of his neighbors, even for the purpose of a lawful trade. Thus he may make an excavation on his own land, but not so near to mine as to cause my land to slide into his canal ; nor may he cast the dirt or stones upon my land, either by human agency or the force of gunpowder. 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 damages resultmg therefrom. He will not be permitted to accomplish a legal object in an unlawful way, although the work is done in the most careful and skilful manner.^ Upon the same principle, the owner of a house and lot who constructs a vault within the limits of the street in front thereof, and covers the same with flagging so as to form the sidewalk, acts at his peril ; and is responsible for all injuries resulting from its want of entire safety for all purposes for which the public have a right to use such sidewalk.^ § 203. It must not, however, be inferred that an action can be maintained for a thing which merely puts another to inconveni- ence. Some actual damage must be sustained by the party com- plaining ; thus the mere act of diverting a watercourse, erecting a privy, or the like, is not sufficient to sustain an action, if it does no real injury to the plaintiff's inheritance or possession.^ So the 1 Hay V. The Cohoes Co. 2 Comst. R. after the completion of the work, and that 160; Tremain v. Same, ib. 163; Aldred's he had no knowledge that the covering Case, 9 Co. 58 ; Rol. Abr. 566. was insufficient. How far, in the city of 2 Congreve v. Morgan, 5 Duer, E. 495. New York, where such matters are regu- It is no defence to an action for an injury lated by a city ordinance, an authority sustained by the breaking and falling-in of from the corporation would affect in such the coTering of such a vault, that the cases the owner's liability, the judges in owner was not guilty of negUgence in this case suggest a qu«re ; and intimate the manner of its construction. Nor can the that if such authority were shown, the owner defend on the ground that the work liabiUty of the owner might depend upon was actually done by a third person, with the question of negligence in the perform- whom he had contracted for its perform- ance of the work. ance, although the terms of the contract ^ Lansing v. Smith, 8 Cow. R, 146 , required the contractor to use stones, for Myers v. Malcolm, supra ; 3 Bar. & Cr! such covering, in all respects sufficient. 556 ; 3 Bar. & Ad. 77 ; 8 Wend. R. 146 ; Nor will he protect himself by showing, Mills v. Hall, 9 Wend. R. 3] 5. Where the that the covering had answered the pur- nuisance consisted in maintaining piles of pose for which it was intended for a year wood on the street, constituting the bulk- SEC. v.] OP NUISANCES. 147 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 actionable : the only remedy in this latter case is to build on the adjoining land, opposite the offensive window.! The injury must also be of a substantial nature, in the ordinary apprehension of manliind, and not arising from the ca- price or peculiar physical constitution of the party aggrieved. As, if the boughs of my tree grow over your land, you may cut them off; but you are not justifiable in cutting them before they grow over your land, for fear they should grow over.^ So if 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 my studies, no action lies.* § 204. 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 in a case where a defendant kept 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 head in front of the plaintiff's storehouse, Palmer, 536 ; Hall v. Swift, 6 Scott, 167 ; injury to the rental of the storehouse Bower v. Hill, 1 Bing. N. C. 546. is an injury which it suffers in common * Com. Dig. Action on Case for a Nui- with all other property in the neighbor- sance. A person sick of an infectious or hood, and will not sustain an action, contagious disease, in his own house, or in Dougherty y. Bunting, 1 Sandf E. 1. The suitable apartments at a public hotel or injury must not only be special in its char- boarding-house, is not a nuisance. Boom acter, but must be peculiar to the plain- v. City of Utica, 2 Barb. R. 104. Neither tiff, and not common to himself and others, is a billiard table. The People v. Sergeant, Butler V. Kent, 19 John. R. 223. 8 Cow. R. 139. 1 Per Eyre, J., 3 Camp. 82 ; 4 D. & R. ^ Conn. R. 305 ; Elliotson v. Feetham, 234 ; Knowles v. Richardson, 1 Mod. 56 ; 2 Bing. N. C. 134 ; BUss v. Hall, 4 *. 183 ; Le Blanc v. , 3 Camp. N. P. C. 82 ; Flight v. Thomas, 10 A. & E. 590 ; s. c. 2 9 Rep. 586. That a man has a right to P. & D. 531. build a fence on his ground for the pur- " Street v. Tugwell, B. R. M. T. 41 pose of shutting up the window of a neigh- Geo. III. But a dog in the habit of com- bor, see Pickard v. Collins, 23 Barb. R. ing on a man's premises, barking and 444 ; Mahan v. Brown, 13 Wend. R. 261 ; howling to the annoyance of his family, is Parker v. Foote, 19 ih. 309. a nuisance, and may be killed after reason- 2 Per Coke, J., in Norris v. Baker, 1 able notice to the owner. Brill v. Flagler, RoUe, R. 395. 23 Wend. R. 354. * Per Doddridge, J., in Jones v. Powell, 148 LAW OF LANDLORD AND TENANT. [CHAP. TI. water, is not actionable.^ And if the injury in such a case is trivial, the law will not afford redress ; but it will interpose, to prevent the lower mills being rendered useless or unproductive in any considerable degree.^ § 205. Although, generally, some injury must have been sus- tained before redress can be had, yet if the necessary consequence of what has already been done will be an injury, it is not necessary to wait until actual damage shall have accrued, before proceeding to the appropriate remedy. As, if a party intending to build a house, which will obstruct my ancient lights, erects fences of tim- ber for the purpose of building, I have no right to pull them down ; but if the eaves of the house, when built, will evidently project over my land, 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. Mere threats, however, unaccom- panied by an act, do not amount to a disturbance.^ § 206. If the owner of land, on which a nuisance has been erected, lets the land, or if a tenant, having created a nuisance, underlets it, and the nuisance is continued, an action for the damage caused by its continuance will lie, at the option of the in- jured party, either against the landlord or the tenant ; because, by letting the land with the nuisance, he affirms it, and the continu- ance amounts to a fresh nuisance.* The action may be brought by any subsequent owner or occupant of the place, who has been sub- jected to the nuisance ; against all who are concerned in its con- 1 Palmer v. Mulligan, 3 Caines, E. 307 ; caused by the erection of a barn or stable Sackrider v. Beers, 10 Johns. R. 321. upon the defendant's land, adjoining the Though a person has a right to erect a plaintiff's dwelling-house, and allowing mill on his own ground whei'e he pleases, manure and filthy water to accumulate yet he must so exercise that right as not and stand in the cellar thereof, it is not to interfere with the existing rights of erroneous for the judge to charge the others ; and therefore if A. erects a new jury, that, if the defendant constructed mill in such a place, or so near the mill of and adapted the barn, so that in its ordi- B. that an artificial dam, before erected by nary use it would be injurious and offen- B., causes the water to flow back on A.'s sive to the plaintiif and cast unwholesome mill and obstruct its movement, A. has no odors into his house, the defendant is right to complain of B.'sdam asanuisanoe. liable for the nuisance thus caused by his Van Bergen v. Van Bergen, 3 John. Ch. tenants, to whom he had let the bam. K. 282. But if the use of the barn proves a nui- 2 Merritt v. Brinkerhoff, 17 J. E. 306 ; sance, by reason of water in the cellar, Stiles V. Hooker, 7 Pick. 266. and that is a special unusual circumstance, 3 Barten's Case, 9 Eep. 5i ; 2 Eol. the owner is not liable for the nuisance, Abr. 145, Nuisance, U. unless he knew, or had reason to believe, * Staples V. Spring, 10 Mass. E. 72; when he let the barn, that the use of it. in Vedder v. Vedder, 1 Denio, E. 257 ; Eex the ordinary mode, would prove a nul- V. Pedley, 1 Ad. & El. 822 ; 1 B. & P. 409 ; sance. Pickard v. CoUins, 23 Barb. E. Plumer v. Harper, 3 N. Hamp. 35. In an 444. action to recover damages for a nuisance SEC. T.] OF NUISANCES, 149 tinuance, whether they be lessees, sub-lessees, or assignees.^ And it does not 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 occasioned by a nuisance need not be direct, in order to sustain an action ; erecting a dam in a navigable stream, that obstructed plaintiff's raft from passing, has been held sufficient for this purpose.^ § 207. Many acts done upon a man's own property, which are in their nature injtirious to the adjoining land, and consequently actionable as private nuisances, may, however, be legalized by pre- scription. 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 by 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 carrying-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. Therefore, an ancient user is held as between individuals to be a justification for the exercise of a noisy * or offensive trade ,^ or 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 1 Staples V. Spring, supra ; Rogers v. ' Elliotson v. Feetham, 2 Bingh. N. C. Stewart, 5 Verm. 215 ; and see Brouwer 134. V. Jones, 23 Barb. R. 153. ^ Bliss v. Hall, 6 Scott, E. 500. Per 2 Wigford V. Gill, Cro. Eliz. 269 ; Per Tindall, C. J., " the plaintiflf came to his Denio, J., in Brown v. The Cayuga and hoBse with all the rights appurtenant to Susquehanna K. E. Co. 2 Kern. 492. it, one of which, at the common law, is a 3 Hughes V. Heiser, 1 Binn. E. 463. right to wholesome untainted air, unless Where a man purchased a lot fronting on the business which creates the nuisance a river, for a dwelling-house lot, and cov- has been carried on there for so great a enanted not to use it for any otfensive length of time, that the law will presume business, nor for a stone -quarry, nor to a grant from his neighbors in favor of the permit any nuisance to be erected thereon, party who uses it, and twenty years' user it was held that leasing the land with the would alone legalize the nuisance." In privilege of building a wharf and a rail- this case, the defendant carried on the way across the land, for the purpose of business of a tallow-chandler on the ad- drawing stone from a neighboring quarry joining premises three years before the to the wharf for transportation thence, plaintiff entered upon his premises, but it which wharf also, from its propinquity to was held insufficient to legahze the nui- a large city, would invite nuisances, was sance. a breach of the covenant, and should be ^ Wright u. Williams, 1 M. & W. restrained by injunction. Seymour v. 77. McDonald, 4 Sandf. Ch. R. 502. ' Stammers v. Dixon, 7 East 199 ; 3 13* 150 LAW OP LANDLORD AND TENANT. [chap. TI. the premises injured by a private nuisance were erected after the nuisance was created, for every continuance of it is a fresh nui- sance.^ § 208. We may here mention, although it perhaps strictly be- longs to that branch of the work which relates to the tenant's reme- dies, that in case a tenant is aggrieved by a private nuisance, besides resorting to an action at law for damages, or applying to a court of equity for an injunction to prevent its erection,^ he may at once enter, and abate such nuisance, without the formality of legal process ; ^ and trespass will not lie against him, either for the entry or the abatement, provided he commits no riot in doing it.* Thus, where the nuisance complained of was the obstruction of a rivulet, by a dam by means whereof the defendant's cattle could not obtain water so plentifully as before, the defendant was justified in entering upon the plaintiff's soil and abating the dam.^ Lord Ellenborough, delivering the opinion of the court in this case, illustrates the prin- ciple 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 dimin- Doug. 340. See the application of the com- mon-law principle, nullum tempus occurrit regi, to the case of a public nuisance. Dy- gert V. Schenck, 23 Wend. R. 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 obstruction, or substantial annoyance to the pubUc. 1 Brady v. Weeks, 3 Barb. E. 157; Howard ;;. See, 3 Sandf. R. 281. 2 Cathn V. Valentine, 9 Paige, R. 575 ; 3 Verm. R. 529; Lansing v. Smith, 4 Wend. 9 ; Stetson v. I'axon, 19 Pick. 147. For common-law remedies for nuisance, see Brown v. Woodworth, 5 Barb. R. 550 ; Wagoner v. Jermaine, 3 Den. R. 306. And as to an injunction to prevent a nui- sance, see Penniman v. N. Y. Balance Co. 13 How. Pr. R. 40; The Mayor, &c. v. Curtis, Clarke, R. 336 ; Barrow v. Rich- ards, supra. In general the court will not interfere by injunction to prevent or re- move a nuisance, unless it has been erected in violation of a right which a man has long previously enjoyed. It must be a strong and mischievous case of pressing necessity, or the right must have been previously estabUshed at law. Van Ber- gen V. Van Bergen, 3 J. C. R. 282 ; 2 *. 164, 379; 2 Ves. R. 414; 16 ib. 338. If, however, the thing is in itself a nuisance, and the plaintiiF'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. XJtica & S. R. R. Co. 6 Paige B. 654 ; Hudson & Del. Canal Co. v. N. Y. & E. R. R. Co. 9 ib. 323. It will not interpose, if the nuisance has been acquiesced in, or encouraged by the party seeking relief. Harrison ik New- ton, 9 N. Y. Leg. Obs. 347 ; 3 Mylne & Cr. 711; 3 Beav. 133; or, if it merely contravenes the general or public policy. Smith V. Lockwood, 13 Barb. R. 209. ^ Gleasou v. Cary, 4 Conn. R. 418; 2 Mod. R. 253 ; Raikes v. Townsend, 2 Smith, R. 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 preven- tive. Pierce v. Dart, 7 Cow. R. 609.- * Wetmore v. Tracy, 14 Wend. 250 ; Batten's Case, 9 R. 54, b ; Colburn v. Richards, 13 Mass. 420. ^ Raikes v. Townshend, 2 Smith, R. 9. "If a man builds a house so near to mine that it shoots the water upon my house, or is in any other way a nuisance to me, I may enter upon the owner's soil and pull it down ; " and for this reason only, it is said "a small flue 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 an action for stopping his lights." Rex V. Rosewell, 1 Salkeld, 459 ; and see Bel- lows V. Sackett, 15 Barb. R. 96. SEC. v.] OP NUISANCES. 151 ished, I may myself fill up the ditch. If he erects upon his own soil any thing 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 he 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.^ § 209. 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 the act of abating such nuisance.^ Therefore, where a man erected a mill- dam, part upon his own land and part upon the land adjoining, and the owner of 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 it 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 the part of the wall upon his own land, and thereupon all the wall falls down, this is lawful.* But he may not abate more than is absolutely necessary, and there- fore, 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 board with two stakes, which he had no right to do, the defendant was held justifiable in removing the stakes, but not in removing the board.^ § 210. The fact that a private nuisance is indictable as a public nuisance ; or the continuance of a nuisance created by the over- flowing of lands by means of a mill-dam for twenty years and upwards, though it confers a right to the use of the land flowed, and constitutes no defence to a proceeding on the part of the public to abate it, — will in neither case prevent an individual from bring- ing an action against the party causing it, provided he can prove he has himself sustained some special injury thereby.^ Nor will the 1 Williams v. Gale, 3 Har. & Johns. ^ Greenslade v. Halliday, 6 Bing. K. 234. 379 ; s. c. M. & R. 75 ; Williams v. Gale, 2 Dyer v. Depui, 5 Wheat. E. 584; 3 Har. & Johns. 234. Gates V. Blanco, 2 Dana, E. 158 ; W. " Chichester v. Lethbridge, Willis, 73 ; Jones 222. Crowder v. Trinker, 19 Ves. K. 621 ; Mills 8 2' Eol. Abr. Nusans, (S). v. Hall, 9 Wend. R. 315. And see Pen- * Wigford V. Gill, Cro. Eliz. 296. ruddock's Case, 5 E. 101. 152 LAW OF LANDLORD AND TENANT. [CHAP. VI. abatement of a nuisance by a plaintiff preclude him from recover- ing damages sustained by himself prior to the abatement.^ No previous demand or notice is necessary before making such abate- ment, except where the tenement on which the nuisance is erected has passed into other hands since its erection ; ^ and the demand may then be made either on the lessor or lessee, for the continuance of it is a nuisance by the lessee, against whom an action would also lie.^ § 211. There must be some sensible abridgment of the enjoy- ment of the tenement to which the 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 in so full and ample a manner as be- fore,, 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 occupation of his house ; 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 or specu- lative 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 a sensible degree less fit for the pur- poses of business. It appears the defendant's premises had been injured by fire, and they re-erected them in a different manner. They have a right to re-erect in any way they please, with this single limitation, that the alteration which they make, must not diminish the enjoyment by the plaintiff of the light and air.''^ 1 Gleason v. Gary, i Conn. E. 418. * Moore v. Dame Brown, Dyer, 319, b. Pierce v. Dart, supra. pi. 17. 2 Wigford V. Gill, Cro. Eliz. 269. ^ Cotteril v. Grifaths, 4 Esp. N. P. C. 69. 8 Brent v. Haddon, 2 Cro. Jac. 555 ; « Parker v. Smith and others, 5 Car. & Gleason v. Gary, supra. P. 438 ; Back v. Stacy, 2 Car. & P. 465. SEC. TI.] OF EASEMENTS. 153 SECTION VI. OF EASEMENTS. § 212. "We have seen that a tenant is entitled to the use of all those privileges, easements, and appurtenances in any way belong- ing to tlie premises under lease, as incident to his grant, unless they have been expressly reserved, 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 individually, or by virtue of any regulation made by the authority of the city or toWn within whose boundary he has lo- cated himself. As these duties and easements essentially affect the tenant's enjoym.ent of the premises, it may be proper here to notice the most important of them, with some of their modifications. Under the head of easements may be included all those privileges, which the public, or tire occupants of neighboring lands, or tene- ments, have in the lands of another, and by which the servient owner, upon whom the burden of the privilege is imposed, is obliged to suffer, or not to do something on his own land, for the advantage of the public, or of the person to whom the privilege belongs.^ Of these we will here 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 enumer- ated by Chancellor Kent, in his Commentaries, which grow up in cities, where the population is dense and the buildings are com- pact, — as the right of support, which arises from contract or pre- scription, where the owner of a house stipulates to allow his neighbor to rest his timbers on the walls of his house. There is also the ser- 1 An easement is a privilege without ments, — tlie dominant, to which the right profit, which one neighboring tenement belongs, and the servient, upon which the hath of another, existing in respect of obligation rests. Tames de la Ley ; Gale their several tenements; by which the & Wheatley's Law of Easements. As an servient owner is obliged to suffer, or not incorporeal hereditament, it passes with to do something on his land, for the the dominant tenement by grant or suc- advantage of the dominant owner. As to cession ; and the servient tenement is its essential qualities, it is incorporeal, al- transmitted subject to the easement, in though imposed upon corporeal property ; like manner. Wolfe v. Frost, 4 Sandf. confers no right to a participation in tlie Ch. R. 72. No one can be said to have profits arising from such property ; is im- an easement in his own land. Huttemeier posed for the benefit of corporeal property, v. Albro. 2 Bosw. E. 546. and must exist between two distinct tene- 154 LAW OP LANDLORD AND TENANT. [CHAP. VI. vitude 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. So there is the right of drain, or to convey water in pipes through or oTer the estate of another. These servitudes or easements must be created by the owner alone ; and one tenant in common cannot establish them upon the common property without the consent of his co-tenant. They may be limited to certain times ; as the draw- ing of water from a neighbor's well may be confined to certain hours ; or a right of passage may be limited to a portion of the day, or to a certain place ; and 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 to restrain by injunction, all violations of these rights.^ (a.) Of a Right of Way. § 213. A right of way is the right to use the surface of another person's land for the purpose of passing and repassing ; and the incidental right of properly fitting the surface for that use, by level- ling, gravelling, ploughing, or paving, while the owner of the soil retains all the rights and benefits of ownership consistent with such easement.^ It may aiise by a grant of the owner of the soil, by prescription, which supposes a grant, or from necessity. When by grant, it can only be created by deed, although 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 ; ^ 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 annexed to the estate, it passes with the land to an occupant or assignee.^ 1 3 Kent, Com. 436; Seymour v. ^ 52. & C. 221; Jones v. Pereival, 5 McDonald, supra. Pick. R. 485. 2 Perley v. Chandler, 6 Mass. E. 454; * Cowling v. Higginson, 4 Mees. & W. 2 Mete. 457. The owner of a right of 245. way has a right to remove all obstruc- ^ Staples v. Heydon, 6 Mod. R. 3; 2 tions placed in it. "Williams v. Safford, 7 Ld. Raym. 922. Under a lease of an Barb. R. 309. The grantee of a private alley, describing it as a lot of land, reserv- right of way, for his own accommodation, ing a right of way to the grantor through must keep it in repair. Wynkoop v. the granted lot, it was held that the Burger, 12 John. E. 222. grantor was not bound to leave the whole SEC. VI.J OP A RIGHT OP WAT. 155 § 214. A right of way may also arise from necessity ; as, if a man leases or sells land to another, which is wholly surrounded by his own land, the lessee or purchaser is entitled to a reasonable pas- sage 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 has a way over his own ground, however inconvenient that may be ; ^ nor if there is a nearer and a better way than the one claimed.^ Tire right of locat- ing it belongs to the owner of the land ; but it must be a conven- ient way.* 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 overflowed, or otherwise.^ There is, however, a temporary right of way over the 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 per- son having a private way over another's land has no right to go upon the adjoining land, even though the private way be impas- sable.^ § 215. The question has been much discussed, whether a right of way, or path for towing vessels, exists along the banks of naviga- ble rivers. Mr. Chancellor Kent observes, that, in those countries where the liberal doctrines of the Roman 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 no such right exists, according to the English law.^ There has been no adjudication tipon this point in New York ; but it has been there held, after a thorough examination of the subject, that the public have no right to use and occupy the land of an individual, adjoining navigable waters, as a public land- ing, or place of deposit of property, in its transit, against the will of the owner ; although such user may have been continued upwards alley open, but only enough to give unob- ^ Miller v. Bristol, 12 Pick. R. 550 ; structed the right of way for the purposes Wynkoop i>. Burger, supra. reserved. Jackson v. Allen, 3 Cow. E. « Miller v. Bristol, 12 Pick. 552 ; Tay- 220, lor "• Whitehead, Doug. E. 745. If a man 1 Doty V. Gorham, 5 Pick. E. 487; gives another a hcense to lay pipes of Holmes v. Seely, 19 Wend. R. 507. lead in his land, to convey water to a cis- 2 McDonald v. Lindall, 3 Eawle, 492. tern, he may enter on the land, and dig 3 Jetter v. Mann, 2 Hill, S. C. R. 641. therein, to mend the pipes. Per Twisden, * Russell V. Jackson, 2 Pick. E. 674 ; J., in Pomfret v. Eicroft, 1 Saund. E. 321. Capers v. Wilson, 3 McCord, 170. ' Ball v. Herbert, 3 Term E. 253. 156 LAW OP LANDLORD AND TENANT. [CHAP. TI. of twenty years, with the knowledge of the owner .^ It is held, how- ever, in Missouri, that navigators and fishermen are entitled to the temporary use of the banks of the 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. A right of way by prescription, for agricultural purposes, is a limited and qualified right, and does not necessarily confer a right to use siich way for general or commercial purposes. Thus, a right of way for carriages does not 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 manure ; * for a right of way to a close for some purposes must not be en- larged for other purposes.^ But the extent of this right is a ques- tion for a jury under the circumstances of each particular case.^ 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 unseasonable hours.^ Twenty years' uninterrupted user is suf- ficient to presume a grant of a right of way, provided it is held adversely, and not by permission.^ But the erection of a gate at the time a way is opened, or the 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 averse thereto. i" § 217. Prom long forbearance to exercise a right of way, a re- lease 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.ii Unity of possession of the close where a private way 1 Pearsall v. Post, 20 Wend. E. Ill ; « Cowling v. Higgmson, 4 M. & W. s. 0. 22 ib. 425. 245. 2 O'JFaUon u. Daggett, 4 Missouri, R. ' Tomlin v. Fuller, 1 Vent. 48. 343. 8 Maverick v. Austin, 1 Bailey, 58; 3 Jackson v. Stacy, Holt, N. P. C. 455 ; Gayetty v. Bethune, 14 Mass. 53 ; Tui-n- Ballard v. Dyson, 1 Taunt. 279 ; Kirkham bull v. Rivers, 3 McCord, 138. V. Sharp, 1 Wheat. 328. 9 Commonwealth v. Newberry, 2 Pick. * Bruntou v. Hall, 1 G. & D. 207. 57 ; Barker v. Clark, 4 N. H. 384. 5 Comstook V. Van Deusen, 5 Pick. i" Hart v. Chalker, 5 Conn. 316 ; Atkins 163 ; Webster v. Bach, 1 Freem. 247 ; 15 v. Boardman, 20 Pick. 291. Pick. 558. u Wright v. JFreemen, 5 H. & Johns. SEC. VI.] OP COMMONS. 157 exists, with the close to which such a way is appurtenant, or which gives the right of way, may cause an extinction of tlie same ; as, if a man have a way over the close of another„and he purchase tliat close, the way is extinguished by the unity of possession.^ But this is to be understood of a mere way of easement ; for if it be a way of necessity, it will not be extinguished by such unity of possession ; lior unless the necessity ceases.^ And if it be a prescriptive ease- ■ ment, mere unity of possession but suspends the right ; it requires a unity of ownership to destroy it.^ Therefore, where a party seized 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, and not to extinguish, the right of way over the former.* (b.) Of Commons. § 218. The term commons is used to denote that a right or privi- lege 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 agriculture, and commenced in some agreement between lords of manors and their tenants ; but, being continued by usage, it becomes valid without an histrument 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 obso- lete, and the right itself is 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 subject of some litigation ; resulting, substantially, in the adop- tion of the principle of English law, that where the right of com- mon of pasture has once been established, the right of the owner of 476; Emerson u. Wiley, 10 Pick. 316; 3 ^ Manning v. Smith,, 6 Conn. K. 291; McCord, 295 ; 10 Mass. 189. See also Caubane v. Fish, 2 Tyrw. 155. Miller v. Garlock, 8 Barb. R. 153. * Thomas v. Thomas, 2 Cr. M. & E. 1 Dyer, 295; Palm. 446; 3 Bulst. 340.' 34; s. o. 5 Tyrw. 804. 2 Grant v. Chase, 17 Mass. 448; Mc- '' Trustees of Western University o. Donald v. Lindall, 3 Rawle, 495. Kobmson, 12 Serg. & Rawle, 33. 14 158 LAW OP LANDLORD AND TENANT. [CHAP. VI. the soil to improve his waste lands must be exercised consistently with the preservation of the right of common.^ § 219. 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 may 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 be surcharged by any number of divisions or subdivisions in consequence of alienation. Such common, there- fore, being incident to the land, passes with it in such proportions as the laud 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, and, perhaps, not more than two chimneys ; but, if the farm is divided, and another house becomes necessary, double the num- ber of chimneys must be supplied, which would be injurious to the inheritance if it were to be allowed. So, also, of fences and build- ings ; upon a division of the farm, more fences and buildings become necessary, and if both are to be supplied from the woods of the pro- prietor, an increased quantity would be taken, when by the grant itself only estovers for one farm were intended. § 220. Since estovers cannot be apportioned, neither of the ten- ants, in case of a division of the farm, can have them ; they there- 1 Watts V. CofSn, 11 Johns. E. 495. to some estate, and not in respect to mere A custom that all the inhahitants of a par- inhabitancy. The custom is therefore ticular town, for the time being, have the void. Smith v. Floyd, 18 Barb. R. 522 ; right to depasture the unenclosed wood- Pearsall v. Post, 20 Wend. R. Ill ; 22 ib. lands of individual proprietors within the 425 ; 4 T. E. 717 ; 6 Eep. 60. town, is not a mere easement, like a right ^ Van Eensselaer v. EadcUflf, 10 Wend, of way, or a right to flow water ; it is a E. 637. right to take a proiit ; and for such a right, * Livingston v. Tenbroeck, 16 Johns, the commoner must prescribe in respect E. 26 ; Bennet v. Eeave, WHles, 227. SBC. VI.J OP FISHERIES. 159 fore become extinguished, whenever a division is made by the act of the party among several tenants. 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 can- not (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, to be enjoyed jointly by the heirs or their assigns ; on the principle, that the land charged with the right ought not to have an increase of burdens by the multiplication of claimants.^ If a stran- ger, who has no right, piits his cattle upon the common, the land- lord may distrain them damage-feasant, or may have his remedy by action of trespass : and the commoner may, in like manner, dis- train, or sue for damage 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.* (c.) Of Fisheries. § 221. 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 exclusively in one or a few individuals. By ^ Van Rensselaer v. Eadcliff, 10 Wend, bathing, skating, or riding upon the ice, 650. taking water for domestic or agricultural 2 Leyman v. Abeel, 16 Johns. E. 30. purposes or for use in the arts, and the A tenant entitled to estovers in the unap- cutting and taking of ice, are lawful and propriated lands of a manor, may, if the free upon these ponds to all persons who landlord seeks to deprive him of his right own land adjoining them, or can obtain by leases of the adjoining common lands, access without trespass, so far as they do resort to more distant parts, though they not interfere with the reasonable use of are more valuable. Van Rensselaer v. the pond by others, where the legislature Brice, 4 Paige, E. 174. Fire-bote cannot has otherwise directed. That the town of be claimed for an under-tenant. Sarles v. "West Eoxbury had no such property in Sarles, 3 Sandf. Ch. R. 601. the ice on Jamaica Pond as would enable 3 Cheeseman v. Hardham, 1 B. & A. it to maintain this action, even if the fee 706 ; Ricketts v. Salway, 2 ib. 360. of the pond be considered to be in the * Bowen v. Jenkins, 6 Ad. & El. 911. town ; and that the remedy for any un- A case of some interest in relation to the reasonable or excessive use of the liberty taking of ice in public ponds has been of cutting ice, being the violation of a recently decided by the Supreme Court of pubUc right, is by indictment ; and the Massachusetts. An action was brought towns may regulate the use of the ponds by the town of West Eoxbury against by reasonable by-laws, adopted and ap- persons who cut ice from Jamaica Pond, proved according to statute. If these are the fee of the land under said pond being insufficient, resort must be had to the vested in said town, for public uses. The legislature. That ice may be property, court held that fishing, fowling, boating, see Ward v. The People, 5 Hill, K. 144. 160 LAW OF LANDLORD AND TENANT. [CHAP. VI. the common law, owners of lands 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 respect- ive lands ad filum medium aquce. And where the lands on each side of the river belong to the same person, he has the same exclu- sive 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 impediments made by the own- ers, so as to obstruct the free use of the river, as a highway for boats or rafts, are deemed nuisances.^ So far as regards the right of fishery in rivers that are not navigable (and in the common-law sense of the term, those only are deemed navigable in which the tide ebbs and flows), it is siibjeot to the further qualification of not being so iised as to injure the private rights of others ; and it does not extend to impede the passage of fish up the river, by means of dams or other obstructions.^ § 222. 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 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 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 indi- vidual lying \ipon 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 also assumed the regulation of the passage 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 1 Hooker v. Gumming, 20 J. R. 90. Parker v. The Cutler M. Co., 20 Maine R. ^ The People u. Piatt, 17 Johns. R. 368; Carter i;. Murcot, 4 Burr. 2162 ; The 195 ; The People v. Tibhets, 19 N. Y. R. Mayor, &c., of Oxford v. Richardson, 4 523 ; Hooker v. Cumming, supra ; Ex T. R. 437. A riparian proprietor on the parte Jennings, 6 Cow. 518 ; Berry o. bank of the Hudson River has no better Cable, 3 Greenl. 269 ; Scott v. Wilson, 3 right to the use of the soil between high N. H. R. 321 ; Commonwealth v. Charles- and low water mark than any other per- ton, 1 Pick. R. 180 ; Adams v. Pease, 2 son. Gould v. The Hudson R. R. R Co. Conn. R. 481 ; Browne v. Kennedy, 5 2 Seld. R. 522. ' Har. & J. 195; Comrs. v. Kempshall, 26 « Blundell v. Cotterall, 5 B. & A. 268. Wend. R. 404. A right of fishing in any water gives no 3 Arnold v. Mundy, 1 Halst. R. 1 ; power over the land. Cortleyou v. Van Martin" v. WaddeU, 16 Peters, R. 600 ; Brunt, 2 John. R. 357. SEC. VI.J OF PISHEHIES. 161 of the banks of rivers not navigable, imless otherwise appropriated by statute ; and tliat 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 arpa of the sea, or in a navigable river, vrhere the tide ebbs and flows. Thus, a patent to the inhabitants of a town, conveying all lands under water within the boiinds of the grant, together with the exclusive right of fishing in the waters of the same, confers this right as the com- mon property of the town, and may be regulated by rules adopted at the town meeting.^ § 223. Although the right of fishing in a navigable river is a common right, the adjoining proprietors have the exblusive 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 Susquehannah, so far as they are common highways, have no exclusive right of fishing oppo- site their respective lands. The right to such fisheries is declared to be vested in the State, and open to all the world.* A similar ex- ception to the common-law nxle 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 pro- perty in them so long as they are upon his land, or in the water 1 Nickerson v. Brackett, 10 Mass. E. ance of fishermen, have much diminished 212 ; Waters v. Lilley, 4 Pick. E. 145 ; the resort of the most valuable fish into the 9 ib. 87 ; Cottrill o. Myrick, 3 Falrcliild, rivers of the Northern States. But the 222; Lunt d. Hunter, 16 Maine, E. 1. learned Chancellor does not doubt that Stoughton V. Baker, 4 Mass. E. 527. society has gained by the change. 2 Eogers v. Jones, 1 Wend. 237. In ^ Lay v. King, 5 Day, E. 72; Com- our busy trading age, the contemplative monwealth v. Shaw, 14 Serg. & E. 9. man's recreation, as " honest " Izaac Wal- * Carson v. Blazer, 2 Bin. 475 ; Shunk ton calls fishing, seems to be very much v. The President, &c., of the Schuylkill neglected; for, as Mr. Chancellor Kent Nav. Co. 14 Serg. & E. 71. observes, in the Commentary to which ^ Gates v. Waddington, 1 McOord, 580 ; our text is largely indebted, manufactu- Collins i;. Benbury, 8 Iredell (N.C.), E. ring, machinery, and steamboats, together 277. with the skill and cupidity and persever- • 14* 162 LAW OP LANDLORD AND TENANT. [CHAP. TI. 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 tres- pass against any person who invades such property.^ (d.) Watercourses. § 224. 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, when he pleases, for any pur- poses not inconsistent with a similar right in the proprietor of the land above and below. And he 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 apiDlied it to some purpose of utility, he is interrupted in doing so by a diver- sion, he has no right of action against the party diverting the water, unless his exclusive occupation had existed a sufficient length of time to raise a presiimption of a grant to use the water, to the detri- ment of others who are equally entitled to the enjoyment of it with himself.^ He cannot, without the consent of the adjoining proprie- tors, divert or diminish the quantity of water, which would otherwise descend to the proprietor below, nor throw back the water upon the proprietor above, without a grant, or an uninterrupted enjoyment of twenty years, which is equivalent to a grant.* Where a spring of water 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 1 Fleet V. Hegeman, 14 Wend. R. 42. Todd, 10 Serg. & R. 63 ; Howard v. Rob- 2 Crocker v. Bragg, 10 Wend. R. 260 ; 6 inson, 3 Mason, R. 272. And see Piatt v. East, R. 214 ; 3 Car. R, 315. Where hy- Johnson, 15 John. R. 213 ; 17 *. 306. drauUc privileges are created by conduct- * Belknap v. Trimble, 3 Paige, R, 577 ; ing a stream across lands in an artificial Gardner v. Village of Newburg, 2 Johns! chaimel, the proprietors of lots crossed by Ch. R. 162; ib. 463; Merritt u.'Parker, 1 it, in the absence of any stipulation to the Cox (N.J.), R. 460 ; Wright v. Howard' 1 contrary, hare the same rights to the use Sim. & Stu. 190 ; Bealey v. Shaw 6 East of the water on their respective lots as be- R. 208 ; 11 A. & E. 571. Even for the tween themselves, as would exist if the purpose of repairing his own mill. Van artificial were the natural channel of the Hoesen v. Coventry, 10 Barb. R. 518. stream. Townsend u. McDonald, 12 N. Nor can he justify a diversion on the Y- I^- 381- ^^ „ . ^ ground that if the other party would make ■> Mason I'. Hall, 5 B.& Ad. 23; Prank- a better dam, there would still be left una V. Falmouth, 6 Car. & P. 529 ; Hatch enough water to supply his miU. Crook- V. Dwight, 17 Mass. R. 289 ; Strickler v. er v. Bragg, sup-a. SEC. VI.] WATERCOURSES. 163 has no right to divert the stream from its natural channel ; altho^igh the waters of the stream are not more than sufficient for his domestic uses, his cattle, and the irrigation of his land.^ Nor can a party 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 it be returned to its ordinary channel long before it reached the other's mill.^ Neither will he be permitted to corrupt a stream of water, to the prejudice of his neighbor.^ § 225. But 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 on the stream ; as by shutting the gates of his dams, and detaining the water un- reasonably, or by letting it off in unusual quantities, to the annoy- ance of his neighbor.* So where two or more mills are entitled to a common use of water, the owner of the upper mill must afford the lower one a fair and reasonable participation in its use.^ But 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. If a man neglects to keep his dam in proper repair, and, in consequence of such negligence, his neighbor's dam and mill below are injured, he will be responsible for the damage. But if the dam has been built upon a proper model, and the work well and substantially done, he will not be liable though it break away by force of the water, and the lower dam and mill be destroyed.'^ 1 Arnold v. Foot, 12 Wend. R. 330 ; The property in a stream of water is indi- Van Hoesen v. Coventry, 10 Barb. E. 518. visible ; and it must be used as an entire And after having changed the natural stream in its natural chaniTel. Vanden- flow of the water, and continued such burgh v, Bergen, 13 John. R. 212. change for twenty years, he will not be * V^ Bergen v. Van Bergen, 3 Johns, permitted to restore it to its natural state, Ch. R. 282 ; Bissell o. Strong, 4 Dal. R. to the prejudice of mills which have been 211 ; Colburn u. Richards, 13 Mass. R. erected with reference to such change. 420 ; Runnells v. Bullen, 2 3Sf. H. R. 532. Belknap v. Trimble, supra. ^ Merritt v. Brinkerhoff, 17 Johns. R. 2 Sackrider v. Beers, 10 John. E. 241 ; 304. Mere inconvenience in his busi- 7 Moore, 345 ; Mason v. Hill, 5 B. & Ad. ness is not a cause of action, if the inter- 571 ; 1 S. & S. 190 ; Hammond v. Fuller, ception of the water does not extend to 1 Paige, R. 197. the destruction or diminution of the uses 8 Howell V. McCoy, 3 Raw. 269 ; of the plaintiff's mill. Palmer v. MuUi- Thomas o. Brackney, 17 Barb. R. 654. gan, 3 Cains. R. 307. The grant of an undivided share of a ^ Garrett v. McKie, 1 Richardson, 444. stream does not authorize its use to the ' Livingston v. Adams, 8 Cow. E. 175. injury of others jointly interested in it. 164 LAW OP LANDLORD AND TENANT. [CHAP. YI. Where a dam is erected upon an ancient stream, to obtain a head of water for the use of one of the State canals, the surplus waters of the stream 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-privileges on the stream below. No person, however, except by the 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 dam for public purposes.^ § 227. The right to the enjoyment of this or any other easement 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 so iising it has en- joyed his occupation for twenty years, he has acquired a prescrip- tive right to such iise,. and the party below miist take the stream subject to such adverse right ; it having been repeatedly held that the exclusive enjoyment of water in a particular way for twenty years, without interruption, becomes an adverse enjoyment suffi- cient to raise a presumption of title, as against a right in any other person, which might have been, but was not asserted.^ § 228. Neither is it necessary that the person claiming such right should have used it in precisely the same manner during that time, or that it should have been used to propel the same machin- ery ; all that the law requires is, that the mode or manner of using the water should 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 siich change for more than twenty years, he cannot afterwards be permitted to re- store it to its natural state, when it will 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.^ But if 1 Varick v. Smith and the Attorney- the right does not relate to the purpose General, 5 Paige, R. 137. for which the water is to be nsed, but to 2 Campbell v. Smith, 3 Halst. K. 139 ; the manner and extent of the diversion. Cooper V. Smith, 1 Serg. & E. 26 ; Sher- Smith v. Adams, 6 Paige, R. 435 ; Bel- wood V. Burr, 4 Day, R. 244 ; Brown v. knap v. Trimble, supra. Best, 1 Wils. R. 174; Barker v. Richard- " 3 Kent, Com. 442; Belknap v. Trim- son, 4 Barn, & Aid. 578 ; 2 B. & Cr. t86 ; ble, supra; Blanchard v. Baker, 8 Greenl. Livatt V. Wilson, 3 Bingh. R. 115. And 253 ; Hazard v. Robinson, 3 Mason, 272. SEC. VI.] WATERCOURSES. 165 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 flow it back upon his neighbor's mill, he is liable to an action, though the dam itself remain at its ancient height ; for the question is not as to the height of the dam, but of the water.^ § 229. A grant of land, bounded upoii a river or stream 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 navigable for either boats or rafts, the public have a right to use it for those pur- poses, and the rights of the adjoining proprietors 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 iise 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.^ Neither have the public any right, without a special custom, to go upon the banks of navigable rivers, for the purpose of towing vessels ; but a prescriptive right to a public tow- ing-path is not destroyed in consequence of an act of the legislature, converting that part of the river adjoining a towing-path, into a floating harbor. And if either the water, or the improvement, impair the facility of passing along the bank, the public have a rea- sonable way over the nearest part of the next field.* 1 Stiles V. Hooker, 7 Cow. R, 266. to market the products of the country are The mere omission by one proprietor to pubUo highways. 3 Kent, Com. 411. make use of a right which belongs to him, Browne v. Scofield, 8 Barb. E. 239. A however long continued, will not preju- river is deemed navigable, as far as the dice him, or confer any right upon the tide rises and falls, though the water be adjoining proprietors. Townsend v. Mc- fresh. People v. Tibbetts, 19 N. Y. K. Donald, 12 N.Y. R. 381; 10 Wend. R. 528. 260 ; 6 East, 208. " The People v. The Canal Appraisers, 2 Adams v. Pease, 6 Conn. R. 481 ; 13 Wend. R. 355 ; Ex parte Jennings, 6 Claremont v. Carlton, 2 N. H. R. 369 ; 7 Cow. R. 548. Mass. E. 496 ; Hay's Ex'rs v. Bowman, " Ball v. Herbert, 8 Term R. 258 ; Rex 1 Rand. E. 417 ; 3 Greenl. E. 269-474; 4 v. Tippett, 3 B. & A. 198. Persons navi- Pick. R. 268 ; 1 Halst. R. 1 ; 3 Ohio, R. gating public waters may use docks erec- 495 ; 5 Har. & Johns. R. 195 ; People v. ted upon them, without any express per- Seymour, 6 Cow. R. 579; 20 Johns. R. mission of the owner; and therefore the 90. Rivers of sufficient capacity to float owner of a dock cannot terminate the oc- 166 LAW OF LANDLOED AND TENANT. [CHAP. VI. § 230. A novel and rather curious question has been recently mooted in England, -which deserves to be noticed here, as to ■whether the right to the enjoyment of an underground spring, or of a "well supplied by such spring, -was governed by the same rule of law as that which regulates watercourses flowing on the surface. It was an action on the case for damage sustained by the loss of the water from the well, in the plaintiif 's close, occasioned by the defendant's digging a coal-pit about three quarters of a mile off. The well had been constructed for twenty years, and was used for working a cotton-mill. Chief Justice Tindal, after stating that the rule which governs streams running in their natural courses either assumes for its foundation 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 agreement 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- continiied 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 another by the exercise of such a right being considered absque injuria?- (e.) Removal of Adjoining Building. § 231. If a man, whether landlord or tenant, finds it necessary to pull down a house, and gives due notice of his intention, as well as of the time of doing so, to the owner of the adjoining building, he is not answerable for any injury the owner of such house may sus- cupancy by setting the vessel adrift so as ground sources of a spring on his neigh- to endanger its safety, until after request bor's land, which supplies a small stream to remove, and neglect to do so in reason- of water flowing partly through the land able time. Heeney v. Heeney, 2 Den. R. of each, and thereby diminishes the natu- 625. ral supply of water, to the injury of the 1 Acton u. Blundell, 12 Mees. & Wels. adjoining proprietor. That the rule, that 324. The principle of this case is cited a man has a right to the free and absolute with approbation by Chief Justice Bron- use of his property, so long as he does not son, in giving the opinion of the court in directly invade that of his neighbor, or Eadcliff''s Ex'rs v. The Mayor, &c., of consequently injure his perceptible and Brooklyn, 4 Comst. E. 200. The Su- clearly defined rights, is applicable to the preme Court of New York has since interruption of the subsurface supplies of decided, that the owner of a farm may a stream, by the owner of the soil ; and dig a ditch to drain his land, or open and the damage resulting from such an inter- work a quarry upon it, although by so ruption is not the subject of legal redress, doing he intercepts one of the under- Ellis v. Duncan & al. 21 Barb. R. 230. SEC. TI.] REMOVAL OP ADJOINING BUILDINGS. 167 tain by the operation, provided he removes his own with reason- able and ordinary care.^ But tlie owner of the premises adjoining those pulled down must also shore up his own building, and do every thing proper to be done upon it for its preservation ; and if he neglects to take such precaution, he is without remedy for any injury it may sustain, unless it clearly appear that the puUuig-down by the other 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. Whether due caution has been \ised, is, in every case, a question of fact for a jury, depending upon its own peculiar circum- stances. Thus, in a recent case, the action was brought for digging the foundation of an intended building, on a piece of land next ad- joining the house of the plaintiff, so carelessly that the walls and foundations of the plaintiffs house gave way and sunk. On the trial it appeared, that the defendants excavated their own ground about six feet deep, and came within about four feet from the plain- tiff'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 \ipon 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 sustain itself six months longer, still the defendant had no right to accelerate its fall, and that such a state of the wall would render more care necessary on the part of the defendant not to hasten its dissolution.^ So, in an 1 Thurston v. Hancock, 12 Mass. R. R. 127. See laws of New York of 1855, 220; Panton v. Holland, 17 Johns. E. 92; 11, ch. 6, as to how party and other walls Peyton v. St. Thomas Hospital, 9 Barn, in New York and Brooklyn are to be sup- & Cres. 725 ; Massey v. Gayner, 4 Car. & ported during excavations. Payne, 161. The provision of the laws of ^ Walters v. Pfeil, Mood. & Malk. 364 ; New York of 1855, that when a person Per Ld. Tenterden, 4 Car. & P. 161 ; excavating, &c., on his lot, in the city of Wyatt v. Harrison, 3 B. & Ad. 871 ; New York, is given a license by the ad- Trower v. Chadwick, 8 Bing. N. C. 334; joining owners to enter on their land 3 Scott, 699 ; 4 Car. & P. 161 ; Dodd v. to protect their buildings from injury by Holme, 1 Ad. & El. 498 ; 8 Nev. & Mann, the excavation, he must so protect them, 789. — does not impose any duty upon a land- * Dodd v. Holme, 1 Ad. & El. 493; 3 lord, as towards his tenant, to secure pro- Nev. & Mann. 789 ; Pierce v. Musson, 17 lection for the tenement by giving such Louis. R. 889; 3 Bing. N. C. 384; 4 Car. Hcense. Sherwood v. Seaman, 2 Bosw. & P. 161. 168 LAW OP LANDLORD AND TENANT. [CHAP. VI. action on the case, for negligently and carelessly excavating the de- fendant's own land, and thereby withdrawing the support fr,oni the plaintiff'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 excavating 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 unskil- ful manner, the court sustained the action.^ (f.) Right to Support from Neighhoring Soil and Buildings. § 233. Neither is the 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 this right of support is an easement necessarily attached to the soil, and its violation will be restrained by injunction.^ A man may excavate a canal, but he cannot cart the dirt, or throw the stones, tipon the land of his neighbor, either by human agency, or by the force of gunpowder.^ He may 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 1 Brown v. Windsor, 1 C. & J. 20. tenant of the premises may have an action Where the defendant permitted anoth.er for the injm-y to his possession, as well as person to remove earth from a hill on the reversioner for the injury to his re- defendant's land, and it was so negli- version. Gourdier v. Cormack, 2 E. D. gently done that earth shd from the Smith, R. 200; ib. 523; Austin v. The hill upon plaintiif' s land, the defendant Hudson R. R. Comp. 25 N. Y. R. 334. was held liable for the injury, upon the * 2 Rol. Abr. Trespass, I. pi. 1. In general principle that he was hound to con- estimating the damages sustained by a trol the use of his own premises so as not tenant for years, whose possession has to produce injury to others. The Mayor, been injured by a wrongful excavation on &c., D. Bailey, 2 Den. R. 4i5 ; 1 Bos. & P. the adjoining premises, tlie jury will take 404. It is to be intended that the owner into account the expense necessary to has control over those who work upon his restore the building to such a state as premises; and he cannot discharge him- would make the possession as beneficial self from that intendment of law by any to the tenant as it was before the trespass act or contract of his own. Gardner v. was committed ; but the allowance must Heartt, 2 Barb. R. 165; s. c. 1 Den. R. not exceed the value of the plaintiflPs 466. term, taking into view the rent reserved. 2 Farraud v. Marshall, 21 Barb. R. 409; Walter v. Post, 6 Duer, R. 363 ; and see 19 ii- 380. Gourdier o. Cormack, 2 E. D. Smith, 11. 3 Hay V. The Cohoes Company, 2 200. Comst. R. 161. And, in such oases, the SEC. TI.] NEIGHBORING SOIL AND BUILDINGS. 169 move his own soil, for any lawful purpose, but if he thereby removes the natural support of his neighbor's land, so that it camiot stand by its own coherence, and it subsides and falls into the pit made by his excavations, thus disturbing his neighbor in the enjoyment and possession of his property, and damaging him, the law will hold the wrongdoer responsible for such consequences, provided his neighbor has done nothing, with his own land, contributing to produce the injury, and 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 buildings have been erected, — it is settled, that no man has a right to the increased support necessary to sustain such building, unless it is of ancient erection.^ If a 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, cannot be lawfully disturbed by 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 the injured party does not possess any special privileges protecting him from the con- sequences of such improvements, either by prescription or by grant.^ In a case where a man had built to the extremity of his soil, and enjoyed his building above twenty years. Lord EUenborough 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.* 1 A court of equity has power to re- ordinary care, of an adjoining building, strain a land-owner from excavating or Laws of New York, 10 April, 1818. removing soil from his land, adjoining the ^ Lasala v. Holbrook, 4 Paige, R. 169 land of another, if the effect of such exca- Richart v. Scott, 7 Watts, R. 460 ; Thurs vation and removal will 'be, to cause the ton v. Hancock, 12 Mass. R. 220; Story b land of his neighbor, by reason of the Oden, 12 ib. 157. withdrawal of its natural support, to fall * Callendar v. Marsh, 1 Pick. R. 434 away or subside. Per Wright, J., in Par- Stansell v. Tollard, 1 Sel. N. P. 444 raud V. Marshall, supra. Wyatt v. Harrison, 3 B. & Ad. 871 ^ Lord Tenterden in Wyatt v. Harri- Wliere one of two buildings having a son, 3 B. & Adol. 874. In the city of New party -wall common to both becomes so York, the foundation of every building dilapidated as to be unsafe and unfit for must be not less than ten feet below the occupation, and the owner, after giving street, or sidewalk directly in front of it ; reasonable notice of his intention to the and if not, the owner will not be entitled tenant of the adjoining building, proceeds to recover damages, by the erection, with to take down the whole wall for the pur- 15 170 LAW OF LANDLORD AND TENANT. [CHAP. TT. § 234. But a house will not have the privilege of support as an ancient erection, if it appears to have been built upon ground pre- viously excavated. In a recent case, the plaintiff was possessed of two houses, one an ancient one, and the other built long within twenty years, upon his own land, and considerably within his own boundary ; the defendants excavated so near their boundary as to cause damage to the plaintiff's buildings, one of which stood upon ground 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 the land of his neighbor ; he has no right to load his own soil so as to make it require the support of that of his neighbor, unless he has some grant to that effect ; 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. And if the plaintiff had not built his house on excavated groimd, the mere sinking of the ground itself would have been without injury. He had, therefore, by building on ground insufficiently supported, caused the injury to himself without the defendant's fault ; unless, at the time, by some gxant, he was entitled to additional support from the land of the defend- ants. There were no circumstances in this 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 no grant could, at all events, be inferred ; 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.i § 235. 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, as by neglecting to keep his premises in sufficient pose of rebuilding it, he is not responsible 220. In all that class of cases where the to the tenant of the adjoining building for mode of enjoyment is turned into an abso- any damages resulting from its exposure lute right by custom, grant, or prescrip- to weather or other causes, If he consumes tion, the party is entitled to protection no unnecessary time in completing the against any alteration of the adjacent work, and uses proper care and skill in premises, by which he may in any way its execution. Partridge v. Gilbert, 15 be injured. Per Gardiner J. in Hay v N. Y. Rep. 601. The Cohoes Co., supra. 1 Partridge , T-t ofi^' K r<' tC-' t, , ,• ^^'"^<^"'^. iwwiuugn executea oy tne 8 Co. Lit. 264, b; Com. Dig. Release licensee. Per Metcalf, J., in Morse v {A. I.), (B. I.). An easement in real Copeland, 2 Gray, R. 302. estate, whether acquired by grant or pre- * Hills v. Miller, 3 Paige, R. 254. scription, may be extinguished or modi- 6 jiall v. Swift, 4 Bing. N. C 381 • fled by a parol license, granted by the Luttrell's Case, 4 Co. 86. ' SEC. VI.] EASEMENT, HOW CREATED OR EXTINGUISHED. 173 pose an abandonment of the right.^ It may also be lost by non-user, unless an intention of resuming the right within a reasonable time is shown, 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 such building had remained there about three years, the plaintiiT re-opened the window in the same place that one of the ancient windows had formerly occupied, and brought his action for the obstruction to his newly opened window, by the defendant's build- ing, but he was not permitted to recover. Mr. Justice Abbott, in delivering his judgment, 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 so erected the blank wall, and thus apparently abandoned the windows which gave light and air to the house, that was not a perpetual but a temporary abandon- ment of the enjoyment, and that he intended to resume the enjoy- ment 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 more recent 1 Taylor u. Hampton, 4 McCord, R. English doctrine on the subject of light 98. and air is held to be an anomaly in the 2 Corning v. Gould, 16 Wend. E. 531. law, and has not been generally adopted The doctrine of extinction by disuse does in the United States. Myers v. Gemmel, not apply to servitudes on easements 10 Barb. R. 537 ; Parker v. Foote, 19 which have been created by deed. Smiles Wend. E. 309. It cannot be applied in V. Hastings, 24 Barb. R. 44. In such the growing cities and villages of this case there must not only be a disuse by country, without producing mischievous the owner of the land dominant, but an consequences ; and, indeed, seems never actual adverse user by the owner of the to have been sanctioned in Westminster land servient. Angel on Wat. Co. 269 ; Hall until 1786, in the case of Darwin v. 24 Pick. E. 106 ; 10 Mass. R. 189. Upton, 2 Saund. 175, which was a clear 8 Moore w. Rawson, 3B. & C. 332; s. c. departure from the old law. Burry v. 5 Dow. & Ry. 254; Manning v. Smith, Pope, Cro. EUz. 118; 3 Kent, Com. 446; 6 Conn. R. 289 ; Prichard v. Atkinson, 4 Hoy v. Sterret, 2 Watts, 331 ; 4 Sandf Ch. N. H. R. 1. The case in the text has been 465. In South Carolina, however, it has adopted, rather for the sake of illustrating been held to be a reasonable right, con- a principle applicable to the extinguish- tributing to the comfort and value of a ment of easements in general than to person's habitation. McCready o. Thomp- lights in particular. In fact, the modern son, .1 Dudley, R. 131. And, in New 15* 174 LAW OP LANDLORD AND TENANT. [CHAP. VI. case, however, in the State of New York, it was held that one omis- sion by tlie 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.i § 240. In another case, Tindal, C. J., said, suppose a person, who formerly 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.^ And where an ancient window had been filled up with brick and mortar for twenty years, Lord Ellenborough held the case stood as if the window had never existed.^ It may be observed here, also, that the doctrine of extin- guishment 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. The encroachment by one party, upon a way held in com- mon with another, by building part of the wall of a house upon a portion of it, and enclosing another portion within a fence, works an extinguishment of the way by operation of law, espeoially where Jersey, the Chancellor prevented by in- irreparable, or cannot be compensated by junction the obstruction of light enjoyed an action for damages. for twenty-one years. 1 Green, Ch. R. i Townsend v. McDonald, 2 Kern. R. 67. In Massachusetts also, the court will 381. interfere to prevent any substantial depri- 2 Liggins v. Inge, 7 Bing. R. 693 • vation of an ancient light. Atkins v. Martin «. Goble, 1 Camp. R. 322: Garritt Boardman, 2 Met. R. 475 ; Fifty Asso- v. Sharp, 3 Ad. & El. 825. ciates v. Tudor, 6 Gray, R. 261 ; Story v. 3 Lawrence v. Obee, 3 Camp. R. 514 • Odin, 12 Mass. R. 157. Though it is said Curtis v. Jackson, 13 Mass. R 507 '• in Atkins v. Chilson, 7 Met. R. 398, that Bridges v. Blanchard, 4 Ad. & El, 176 ■ 5 a lessor is not entitled to an injunction .to Nev. & Man. 567. ' ' restrain the lessee from obstructing and * Jewett v. Jewett, 16 Barb. R. 157 • darkening windows in the demised prenii- White v. Crawford, 10 Mass. R. 183 ' ses, unless the injury will probably be Arnold v. Stevens, 24 Pick. R. 106. ' SEC. TI.J EASEMENT, HOW CREATED OR EXTINGUISHED. 175 the other party sells his interest after such acts done, and the pur- chaser, on his part, acquiesces in and confirms what has been done. The acts relied on to show an extinguishment 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 lond fide purchaser will be pro- tected 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 ; biit where the fact of adverse possession is beyond dispute, the law itself raises the presumption.^ § 242. If the act which prevents the servitude is the act of the party having the dominant tenement, it will effect an extingxiish- ment of the right. But if it is prevented by the act of God, or by the operation of the 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 permanent nature, by the party himself to whom the service is due, or by his consent, or by the voluntary acquisition or acceptance of any other right or priv- ilege 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, adverse to a right of way, bars the right.^ § 243. The exclusive enjoyment of an easement for twenty years, without interruption, 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 1 Corning v. Gould, 16 Wend. E. 531. appears, that it has been surrendered if it Abandonment is a simple non-user of an ever existed. A mere non-user is suffi- easement ; and, in order to make out an cient to produce this effect, without show- effectual answer to the claim upon that ing the erection, or permission to erect, a ground, I find it perfectly well settled, permanent obstruction. Per Cowen, J. that the enjoyment, nay, all acts of enjoy- ^ Taylor v. Hampton, 4 McCord, K. ment, must have totally ceased for the 96; Hall v. Swift, 6 Scott, 167. same length of time that was necessary to ^ Emerson v. Wiley, 10 Pick. E. 310 ; create the original presumption. The Holmes v. Buckley, 1 Eq. Cas, Abr. 27. non-user for twenty years, affords a pre- * Hurd v. Curtis, 7 Metcalf, 94. sumption, either that the former presump- ^ Yeakle o. Nace, 2 Whar. E. 123; tive right was extinguished, in favor of Moore v. Dame Brown, Dyer, 319, b. pi. some other adverse right, or if none such 17. 176 LAW OP LANDLORD AND TENANT. [CHAP. VI. 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 com- pact short of a grant.^ According to the English law, a prescrip- tion must always be laid in him that is tenant of the fee. A tenant for life, for years, or at will, c&nnot presmbe ; for as prescription, by that law, is usage beyond time of memory, it is absurd that he should pi'etend 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, Massa- chusetts, and other States, it is acquired by twenty years' uninter- rupted possession. In Connecticut and Vermont, by fifteen years' possession.^ In South Carolina, it is said to be thirty years.* But it has been held not to exist at all in New Jersey ,5 or in Pennsyl- vania.s And, in Virginia, twenty-seven years' possession has been held to be an insufficient ground for presuming a grant.'^ 1 Gayette v. Bethune, 4 Mass. R. 53 ; ^2 Black. Com. 265. Lawton v. Rivers, 2 McCord, R. 449 ; 5 ^ Manning v. Smith, 6 Conn. R. 289 ; Pick. R. 425; 2 Black. Com. 265; Parker Mitchell v. Walker, 2 Aik. R. 266. V. Foot, 19 Wend. 309. It is said, how- * Lawton v. Rivers, 2 McCord, R. ever, that as respects a public navigable 449. river, twenty years' possession of the wa- ^ Ackerman v. Shelp, 3 Halst. R. 125. ter at a given level is not conclusive as to ^ Young v. Collins, 2 Brown, 293. this right. Vooght c;. Winch, 2 B. & A. ' Boiling v. Mayor, 3 Rand. R. 563. 662. CHAP. YII.] OF COVENANTS. 177 CHAPTEE VII. OF COVENANTS AND CONDITIONS. § 244. A LARGE proportion of the rights and liabilities of both landlord and tenant arises out of the ^covenants between the parties. Some of these covenants are incident to the relation subsisting between them, and are obligatory independent of positive stipulation, while others are the subject of express contract only. Such rights may also be qualified or limited by some condition annexed to the estate, which may either operate as a covenant, or terminate the estate according to circumstances. SECTION I. OF COVENANTS. § 245. A covenant is 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),^ as well as by indenture;^ and where lands are conveyed by indenture to a person who does not seal the deed, yet, if he enters upon the land, and accepts the deed in other matters, he will be bound by the covenants contained in it.^ Covenants are either express or implied, or, as they are otherwise termed, covenants in deed, and covenants in law. § 246. Express covenants are such as are created by the words of the parties, declaratory of their intention. No precise or techni- 1 Green v. Horn, 1 Salk. 197 ; Rande « Co. Lit. 230, b. ; Trotter v. Hughes, 2 V. Ches. & Del. Canal Co. 1 Harring. 151, Kern. E. 74 ; Halsey v. Eeed, 9 Paige, E. 233. 446 ; 2 Sandf. Ch. E. 251 ; *. 478. 2 1 Eol. Abr. 517; Day <-. Brown, 2 Ham. 346. 178 LAW OF LANDLORD AND TENANT. [chap. YII. cal language is necessary for this purpose ; ^ it may be put in the form of a condition, an exception,^ or eyen a recital ; ^ for where- ever the intention of the parties can be collected out of the instru- ment, agreeing to do, or not to do, a particular thing, it is suffi- cient.* 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, these words will amount to a covenant, on the part of the latter, to convey the lands on that day.^ So, where an ofiBce had been conveyed by the plaintiff to the defendant, provided, that out of the first profits he should pay the plaintiff ^£500, it was held, that as this proviso was in the nature of a covenant, and not by way of condition or defeasance, an action of covenant would lie upon it.s 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 has no remedy ; while the leaning of the law against forfeitures 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. In general, wherever circumstances exist from which an 1 Davis V. Lyman, 6 Conn. E. 249 ; Bull V. FoUett, 5 Cow. R. 170; Lent v. Norris, 1 Burr. 290. Where words im- porting a covenant are intended to operate as a condition, they are always express to that point. Surplice v. Farnsworth, 7 M. & G. 576, 584. 2 Duke of Northumberland v. Ewing- ton, 5 Term R. 526 ; Holden v. Taylor, 1 Kol. Abr. 518, 1. 19 ; Russell v. GulweU, Cro. Eliz. 657. Lowell M. H. <;. Hilton, 11 Gray R. 407. ^ Penn v. Preston, Rawle, R. 14 ; Bar- fort V. Freswell, 3 Keb. 465. * Hallett V. WyUe, 3 Johns. R. 44 ; Hill V. Carr, 1 Ch. Ca. 294 ; 12 East, R. 182, n; Doug. 27-766; 1 Ves. R. 316-511; Livingston v. Stickles, 8 Paige, 403. The leading rule of construction always is, that contracts are to be expounded so as to carry into effect the intention of the parties appearing on the face of the whole instrument; not from particular expres- sions, but ex antecedentibus et consequentibus, according to» the reasonable sense and construction of words. Davids v. Lyman, 6 Conn. R. 249; Watchman v. Crook, 5 Gill & Johns. 239; Quackenboss v. Lan- sing, 6 Johns. R. 49 ; Marvin v. Stone, 2 Cow. 781 ; Iggulden v. May, 7 East, R. 241 ; Browning v. Wright, 2 Bos. & Pul. 13 ; Doe v. Abel, 2 M. & S. 541 ; Kind V. Marshall, 1 Brod. & Bingh. 319. A covenant cannot be controlled by a verbal agreement; but parol evidence of fraud or mistake in a covenant, is admissible. Hustons V. Winans, 4 Wend. R. 163; Thompson v. White, 1 Dal. 426 ; 1 Bingh. 616; 1 S. & E. 464; McRea v. Purmort, 16 Wend. R. 460. Ambiguous expres- sions are to be construed, most strongly, against the party using them. But if two opposite intentions 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 Term R. 234 ; Dan v. Spurrier, 3 B. & P. 399; Hanover v. Clark, 3 Murphey (N. C), R. 169; 1 Harring. R. 283; Cart- wright V. Arnatt, 2 B. & P. 43 ; Layton v. Pearce, Doug. R. 15. s Pordage v. Cole, 1 Saund. B. 319 ; 1 Sid. 423 ; 1 Lev. 274. 6 Clapham v. Moyle, 3 Salk. 108; 1 Lev. 155; 1 Keb. 842, 860, 897. ' Aikin v. Albany, V. & C. R. R. Co., 26 Barb. R. 289. But see Palmer v. Fort Plain & C. Co., 11 N. Y. R. 376. Thus in a deed to a railroad company, not ex- ecuted on their part, but accepted, a pro- vision that the company is " to construct crossings " creates an obligation on their part which may be enforced. Aikin v. Albany Co., supra. SEC. I.] OP COVENANTS. 179 agreement between parties may be inferred, they are equivalent to an express promise. ^ As where a lease was made, on condition that the lessor shoiild keep and leave the houses at the end of the term, in as good plight as he foiind 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 cov- enant to pay rent.^ But wherever the words do not amount to an agreement, or are merely conditional for the purpose of defeating the estate ; as, if a lease be granted provided and on condition that the lessee collect and pay the rents of the other houses of the lessor, covenant is not maintainable, for these words are evidently intended to limit the estate.* 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. Such 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. 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 hixsbandry, according to the custom of the country," the exception was held to be as much of an agreement as the rest of the stipulation in which it was placed, and to import a direct obli- gation not to plough the rabbit-warren and sheep-walk.^ So were the words, that A. should take fire-bote, without cutting more than was necessary.'^ But on a covenant by a lessee, " to repair 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 provide it ready for the defendant to carry.^ 1 Lamb v. Bunce, 4 M. & S. 275. ^ Knickerbocker v. Killmore, 9 Johns. 2 Bac. Abr. Cot. A. ; Rol. Abr. 518. E. 106 ; Davis v. Lyman, 6 Cow. R. 252 ; 8 Giles V. Hooper, Castle, 135. Ludlow v. McCrea, 1 Wend: 228 ; Plow. * Geery v. Reason, Cro. Car. 128; Cro, 329, cited by Lord Ellenborough ; Iggul- Eliz. 242 ; 2 Co. 71, b. Wliere the Ian- den v. May, 7 East, 241. guage imports a condition merely, and ^ Duke of St. Albans v. Ellis, 16 East, there are no words importing an agree- 352. ment, it cannot be enforced, as a covenant, ' Stevenson's Case, 1 Leon. 324. but the only remedy is through a for- ^ Brailsford v. Parsons, Lutw. 95; feiture of the estate. Palmer v. Fort Stone v. Gilliam, Show. 149. Words are to Plain & C. Co. supra. be taken in their legal sense, where they 180 LAW OF LANDLORD AND TENANT. [CHAP. VTL § 249. "Words of recital, when joined to and considered with the rest of the intent, may be the foundation 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, and thereby covenants 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 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 covenant to build was implied in the recital.^ But a recital in a covenant, executed by one of the parties through misapprehension or mistake, will not be regarded by a court of equity as conclusive upon such party ; for evidence will be admitted to show that such recital is not true, and that it was inserted in the covenant through misapprehension or mistake.* § 250. 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 computed 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, " pro- have one, unless it is apparent, from the 1 Taunt. E. 137 ; Yeats v. Prin, 2 Mars, contract itself, without reference to any 141. The subsequent acts of contracting usage between the parties or their pred- parties are inadmissible to explain their ecessors, in antecedent contracts of the original intention. And the rules for the same nature, to have been meant in construction of all contracts are the same, another sense. All contracts must be whether the instrument is by parol or expounded with reference to their sub- under seal. Clifton v. Walmsley, 5 Ternai ject-matter, to which end evidence of the E. 564 ; Seddon v. Senate, 13 East, K. 63. state of things existing when they were ^ Levern v. Gierke, 1 Leon. 122 ; John- concluded, may be given ; and this rule son v. Proctor, Yel. 175 ; 2 Brownl. 212 ; may frequently restrain the most indefl- 2 Bos. & Pul. 25. nite expressions. The custom of the ^ Best v. Brett, 1 Eol. Abr. 618; 3 place, if any such exists, is an impUed Swanst. 649 ; Barton o. Fitzgerald, 15 term of every contract; but a usage can- East, E. 580; Barfort v. EresweU, 3 Keb. not be set up in contravention of an 465. express contract. The Master, &c., v. ^ Sampson v. Easterby, 9 B. & C. 505 ; Dewalden, 6 Term E. 338; Pavey v. 4 M. & E. 422 ; 6 Bingh. 644. Burch, 3 Miss. E. 447 ; Doe dem. Free- * Eieh v. Hotchkiss, 16 Day, E. 409. land V. Burt, 1 Term E. 701 ; Hassell v. ^ Parker v. Gravenor, 2 Dy. 150, a ; Long, 2 M. & S. 303 ; GiUett v. Newman, Buls. 72; 1 Co. 155, a. SEC. I.] OP COVENANTS. 181 Tided always, and it is agreed that the lessor shall find great timber, &c.," this creates a covenant on the part of the lessor to find great timber by the word agreed, and will not be considered a qualifica- tion of the lessee's covenant.^ But if the word " agreed," or some equivalent expression, is not used, 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, evidently by way of condition or defeasance, will not amount to a covenant.^ Nor do words expressive of the quantity of land in a deed amount to a covenant that there is such quantity, for they are merely descriptive of the land conveyed.^ § 251. A license, it is said, may have the force of a grant of an incorporeal hereditament, if it be sealed and delivered; and if granted for a consideration, it may take effect as a covenant ; as if it authorizes the party to whom it is made to go upon the land of the party granting it, to use the land for his own profit ; in which case it would be equivalent to a lease. Or it 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. Technically, how- ever, a license is only an authority to do some act, or a series of acts, on the land of another, without passing any estate in the land ; and is revocable, so long as it remains executory, unless a definite term is fixed for its continuance ; but irrevocable, when executed. Licenses to do a particular act do not trench upon the policy of the law which requires that bargains respecting real estate shall be in writing; and they in general amount to nothing more than an excuse for an act, which would otherwise be a trespass.* § 252. Implied covenants depend for their existence on the in- tendment and construction of law, and are such as the law raises, from the relation of the parties to each other, in the absence of any agreement on the subject between them. Thus, if land be granted for a term of years, by the words demise or grant, without any ex- press covenant for quiet enjoyment, the lessee, or his assigns, if 1 Holden v. Taylor, Brownl. 23 ; For- * Davis v. Townsend, 10 Barb. E. 334. dage V. Cole, T. Eaym. 183 ; Samways v. The same license may operate as a grant Eldsley, 2 Mod. 177. as to some things, and a mere Ucense as 2 United States v. Brown, 1 Paine, C. to others. Wood v. Leadbitter, 13 M. & C. U. S. 422; Huddle v. "Worthington, 1 W. 845; Cook v. Stearns, 11 Mass. E. Ham. (Ohio), E. 413. 533. See also, Thomas v. Lowell, Vaugh. 8 Powell V. Clark, 6 Mass. E. 3§5; E. 330, 351. Beach v. Stearns, 1 Aik. 325. 16 182 LAW OF LANDLORD AND TENANT. [CHAP. TH. ousted by rightful title, may sustain an action on the implied cov- enant, that the lessor warranted he had a good title at the time of executing the deed ; for the word demise imports a power of letting, as the word grant does of giving ;^ although this latter word, grant, does not constitute a warranty when used in a conveyance of free- hold estate.^ So the words yielding and paying in a lease imply a covenant on the part of the lessor to make payment.^ A covenant is also implied on the 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 con- sideration is necessary to every contract, it is imj)lied 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 his flock of sheep, which he should keep upon the premises, upon such parts where the same had been usually folded, was held to amount to a covenant to keep a flock of sheep.^ § 253. It is a well-settled rule, that where there is an express covenant, the law will not imply one. Thus a covenant of war- ranty does not imply a covenant of seizin, nor under such a coven- ant can it be assigned as a breach that there was no such land as the grantor undertook to sell.^ But an implied covenant may be qualified, enlarged or restrained, by an express covenant ; ^ as, for example, the implied covenant for quiet enjoyment against all per- sons claiming title, may be enlarged by the lessor's covenanting against disturbances by all persons whatsoever ; or narrowed by his covenanting against the acts of such persons only as claim through him. And the implied covenant may still subsist in the deed, pro- vided it is consistent with, and not contradictory to, the express cove- nant.^ Thus, where there is an express covenant to repair a house, the implied obligation to use it in a tenant-like manner will also form part of the contract.^ 1 Grannis v. Clark, 8 Cow. E. 36 ; 2 wise be without remedy in case the rent Caines, R. 188 ; Deering v. Farrington, should not be paid. Delancy v. Ganong, Freem. 367 ; Hackett v. Glover, 10 Mod. 5 Seld. E. 1. 142 ; 6 Co. 17 ; Barney v. Keith, 4 Wend. ^ Powley v. Walker, 5 Term E. 373. E. 502. A recited antecedent agreement ^ Webb v. Plummer, 2 B. & A. 746. may raise a covenant by implication. « Cutter v. Powell, 6 Term E. 320; Easterby v. Sampson, 6 Bingh. 644. Vanderkan v. Vanderkan, 11 Johns. E. 2 Spencer's Case, 6 Co. 18, a ; Brown- 122. ing V. Honeywood, Freem. 339-414. ' Kent v. Webb, 7 Johns. R. 259 ; 3 Harper v. Burgh, 2 Lev. 206 ; Webb Sumner v. Williams, 8 Mass. E. 201. V. Eussell, 3 Term E. 402; 5 Cow. R. » gates v. Caldwell, 7 Mass. E 68- 170; 1 Bibb (Ky.), R. 379. The words Christine v. Whitehill, 16 S. & E. 98. yielding and rendering, in a lease, import a » Holford v. Bennett, 7 Mees. & Wels. covenant, unless the landlord would other- 348 ; 1 H. & W. 67. SEC. I.J OF COVENANTS. 183 § 254. Wliere a lessee assigns the leasehold premises, " to have and to hold the same in as ample a manner, to all intents and pur- poses, as the assignor might or could hold the same, and covenants that he had good and lawful right to bargain and transfer the prem- ises, as above written, and that the same are free of all arrearages of rent, and other encumbrances," the covenant is limited to the acts of the assignor himself, and does not amotint to a warranty of the landlord's title.^ And if, in an under-lease, the sub-lessee coven- ants 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, theref will be no implied covenant on the part of the sub-lessor to indemnify his lessee, although the rent in the under-lease is re- served yearly.^ So an express covenant against persons named restricts an implied covenant under the word " demise ; " ^ and an express covenant for quiet enjoyment restrains the whole of the implication in the word " demise," which implies two covenants : to wit, a covenant for title, and another for quiet enjoyment.* § 255. In order to support the apparent intention of the parties, covenants in large and general terms have been frequently nar- rawed and confined ; ^ as where the defendant sold the plaintiff a lease for years, and covenanted that Tie would not do nor have done any act to disturb the plaintiff, but that the plaintiff should hold and enjoy without the disturbance of the vendor or any other person, 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 seized of a good estate in fee, and had good right to convey, was held to be qualified and re- strained by a subsequent covenant for quiet enjoyment, without let or interruption by them, their heirs, or persons claiming under them.^ § 256. It should be observed, -that this distinction between ex- press and implied covenants is important, and not merely tech- nical. Express covenants are construed more strictly than those 1 Knickerbocker v. Killmore, 9 Johns. ^ Cole v. Hawes, 2 Johns. Cas. 203 ; E. 106. MiUer v. Heller, 7 S. & R. 40. 2 Upton V. Ferguson, 3 Moore & Scott, ^ Broughton v. Conway, Moor, 58 ; 88. Gale v. Reed, 8 East, 89 ; 1 B. & B. 319. 8 Merrill v. Frame, 4 Taunt. 329. ' Milner v. Horton, 1 McClel. & Y. * Line v. Stephenson, 4 Bing. 678 ; s. o. 647 ; 4 B. & C. 606. 5 Bing. 183. 184 LAW OP LANDLORD AND TENANT. [CHAP. Til. which are implied, and may be entered into without a considera- tion, while the latter cannot.^ Implied covenants do not 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 watercourse 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 representatives ; and though the word demise in a lease, where there is no express cov- enant for title, amounts to an implied 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. The common-law doctrine of implied covenants in a deed has ceased to be operative in the State of New York since the pas- sage of the Eevised Statutes, which declare that " no covenant shall be implied in any conveyance of real estate, whether such convey- ance contain special provisions or not." The words real estate, in this section of the statute, were at one time held to be sufficient to embrace an interest in land less than a freehold ; the Supreme Court having decided that this provision extended to covenants *n leases for years, as well as in conveyances for life or in fee.* The consequence of this decision would have been that the indemnity of a purchaser or lessee, for a failure, or other defect of title, in all cases free from fraud, would rest entirely upon the express cove- nants in his deed.^ But the Court of Appeals subsequently repu- diated the doctrine of the Supreme Court as applicable to implied covenants in leases for years, and held that such leases are not real estate within the meaning of the statute.® § 258. With respect to the parties to a covenant, we may observe in general, that at common law, a contract made for the benefit of a third person is valid, and may be enforced by him, if he has an 1 Shubrick v. Salmond, 3 Burr. 1639 ; nants, as understood by the , law, seems May V. Trye, Freem. 447. The seal of a very questionable. By attempting to do covenant always imports a consideration, so, the object is often entirely frustrated ; 2 Huddy V. Fisher, 1 Leon. 278. and those things which would certainly 3 Adams v. Gibney, 6 Bingh. R. 656. come within the general principle of a * Kinney v. Watts, 14 Wend. R. 381. covenant in law ai-e frequently passed 5 The wisdom of a provision of law over by a vain attempt at an enumera- which would compel parties to meet every tion of particulars which is intended to possible case that might happen by an have the same effect, express contract, rather than rely upon " The Mayor, &c., v. Mabie, 3 Kern, the more general extent of imphed cove- R. 151. BEC. I.J OF COVENANTS. 185 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 instrument can maintain an action for a breach of it.^ An indenture, not inter partes, will have the operation of a deed-poll, on which an action may be maintained by a party not executing ; as where A. covenanted with B. to pay him a certain sum of money, and, in the same instrument, also covenanted with B. and C. to pay C. anotlier 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 miglit bring his action.^ But, by a deed inter partes, one who is a party to the deed cannot covenant with another who is no party to it ; even for the perform- ance 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 clearly liable to an action of covenant, in consequence of his having sealed.* § 259. No action of covenant can be maintained against a lessee claiming under a deed-poll, 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 execution of an indenture by the lessee, on the assumption that his entry and enjoyment under 1 Spencer v. Meld, 10 Wend. R. 87; breach of it; but when it does not ex- Stone V. "Wood, 7 Cow. K. 454. pressly appear on the face of the instru- 2 Lowther v. Kelly, 8 Mod. R. 1)5; ment with whom the covenant is made, ' Lucke V. Lucke, Lutw. 93 ; Cooker v. collateral facts may be resorted to, for the Child, 2 Lev. 74. purpose of ascertaining the party intend- 8 Haskett v. Flint, 5 Blackf. (Ind.), R. ed. Thus, where a person covenanted and 69 ; Bleecker v. Bingham, 2 Paige, R. " agreed to become surety for the faithful 246. performance of the covenants expressed * Storer v. Gordon, 3 M. & S. 322 ; 6 in the above lease," it was held that ib. 75; Wheelwright v. Beers, 2 Halst. although it did not expressly appear by R. 391 ; Berkley v. Hardy, 5 B. & C. the writing with whom the covenant was 355; 8 D. & R. 102; 2 B. & B. 333; Lord made, yet that reference being made Southampton v. Brown, 6 B. & C. 718. therein to the lease, both instruments s Chancellor v. Poole, 2 Doug. 764 ; must be read together, to ascertain what Haines v. Morris, 1 Ves. & B. 14 ; WU- was the contract of the parties ; and that, kins V. Pry, 1 Meriv. 266 ; Sutherland v. being taken together, the instruments Lishman, 3 Esp. 42; Kimpton v. Eve, 2 were equivalent to an express covenant Ves. & B. 353. None but a party to a, with the plaintiff. Van Alstyne v. Van covenant can maintain an action for a Slyck, 10 Barb. R. 383. 16* 186 LAW OP LANDLOED AND TENANT. [CHAP. YII. the lease -would be sufficient to expose him to an action for a breach of any of the covenants to be performed by him. But a covenantee, without 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 lia- bility.i § 260. Covenants in a deed that extend to a thing in esse, parcel of the demise, and benefit the estate, 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 the thing to be done is upon the land demised, as to build a house or a wall, the assignees, if named, are bound by the covenant. But if they do not touch or concern the thing demised, as to build a house on other land, or to pay a collateral sum to the lessor, the assignee, though named, is not bound ; such covenants being considered mere personal cove- nants not affecting the land demised, but merely collateral to it.^ § 261. In order that a covenant may run with the land, its per- formance or non-performance must affect the nature, qiiality, or value of the property demised, independent of collateral circum- stances, or must affect the mode of enjoyment.^ It must not only concern the land, but there must also be a privity of estate between 1 Smith & al. v. Kew, 3 Comst. 144 ; payment ; it was held that the covenant to Petrie v. Busy, 3 Barn. & Cress. 353 ; 5 D. pay was pm'ely personal, and did not & B. 152 ; Vernon v. Jeffreys, 2 Stra. create a legal or equitable Hen upon the 1146 ; 7 Mod. 358. land. Curtis v. White, Clarke, E. 389. 2 Spencer's Case, 5 Co. 16 ; Bally v. ^ Norman v. Wells, 17 Wend. R. 136 ; Wells, Wilmot, 844 ; Mayor of Congle- see, post, § 444. Much learning has been ton w. Pattison, 10 East, R. 130; Dolph u. expended, and sometimes to httle pur- White, 2 Kern. R. 296. A more modern pose, in endeavoring to define the boun- expression of this doctrine is, that whether dary between real covenants, or such as a covenant runs with the land or not run with the land, and those which are depends upon its nature, and the inten- merely personal. A most elaborate effort tion of the parties in the creation of the to accomplish this end was made by Mr. estate, rather than upon the phraseology Justice Owen in Norman v. Wells ; and of the instrument ; nor is the word assigns yet, after aU his researches, that indefati- necessary to make the lessees' covenants gable judge was forced to declare that the binding upon the assignee, for the intent authorities still left the application of old may be inferred without that word, principles to new cases a very nice exer- Masury v. Southworth, 8 Ohio, R. 340. else of the mind, and remaining, in greater Where A. & B., owners of adjoining lots, degree, a matter for judicial discretion, agreed that B. should build a party wall, than almost any other of equal importance and that A, would pay his proportion of 'in the law of property. Per Harris, J., the expense of erecting it, as soon as he in Van Rensselaer v. Bonesteel, 24 Barb, should build upon or dispose of it, and E. 367. he afterwards sold his lot, subject to this SEC. I.] OP COVENANTS. 187 the contracting parties ; for if a party covenant with a stranger to pay a certain rent, in consideration of a benefit to be derived under a tliird person, it cannot run with the land, not being made with tlie person having tlie legal estate.^ And if the assignee of the re- version 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, if a party, having only an equitable fee in a freehold, gTants a lease, and then devises the equitable fee 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 assignees, because he is not in of the same estate as the lessor.^ There is no difference between express and implied covenants, as to their running witli the land;* but mere equitable covenants do not run with the land.s § 262. Implied covenants run with the land ; so do covenants for quiet enjoyment ; ^ to insure, if the insurance is to be laid out in rebuilding ; ^ for further assurance ; ^ to repair ; ^ to discharge the lessor from taxes and assessments, ordinary or extraordinary ; i" to permit the lessor to have free passage to two rooms excepted in the demise ; ^^ to cultivate the land in a particular manner ; ^ to reside on the premises ; ^^ to maintain a partition fence ; ^^ not to carry on particular trades ; ^^ not to erect any building in front of the demised premises ; ^^ nor to put in operation a rival mill.^^ A cov- 1 Demarest v. Willard, 8 Cow. R. 206 ; Noke,u. Awder, Cro. Eliz. 436 ; 3 B. & A. "Webb V. Russell, 3 Term R. 398 ; Allen 392. V. Wooley, 1 Blackf. (Ind.), R. 149. But ' Vernon v. Smith, 5 B. & A. 1. see Willard v. Tillman, 2 Hill (N. Y.), R. ^ Middlemore v. Goodale, Cro. Car. 275 503; 12 East, 464. 2 Co. Lit. 215; 1 Saund. 240, a. ^^ Demarest w. WiUard, 8 Cow. R. 206 ; Though there should be a total want of Dean and Chapter of Windsor's Case, 5 right in the original covenantor, if his deed Rep. 24; Shelby w. Hearne, 6 Yerg. R. transfers the possession, and that posses- 612; Kingdor v. Nottle, Maul. & Sel. 356. sion passes by subsequent conveyances, i° Post v. Kearney, 2 Comst. R. 894; the original covenants pass therewith. Martin v. Baker, 5 Blackf. (Ind.), R. 232. The naked possession is an estate, and ii Cole's Case, 1 Salk. 196; 1 Show, covenants real before breach pass with 389 ; Carth. 232. it. Beddoe v. Wadsworth, 21 Wend. R. ^^ Cockson v. Cock, Cro. Jac. 125. 120. ^^ Mayor of Congleton v. Pattison, 10 3 Whitton V. Peacock, 2 Scott, 630 ; East, R. 136. 8. c. 2 Bing. N. C. 411. ^* Kellogg v. Robinson, 6 Verm. E. 4 Vyvyan v. Arthur, 1 B. & C. 410; 276. 8. 0. 2 D. & K. 678. ^^ Tatem v. Chaplin, 2 H. Black. 188. 6 Whitton V. Peacock, supra. i^ Trustees of Watertown v. Cowen, 4 6 Suydam v. Jones, 10 Wend. E. 180; Paige, E. 510. Hunt V. Amidon, 4 Hill (N. Y.), R. 345; " Norman v. Wells, supra. 188 LAW OP LANDLORD AND TENANT. [CHAP. VII. enant by a lessor to supply two houses with water, at a rate therein mentioned for each house, runs with the land ; and, for a breach of it, the assignee of the lessee may maintain an action against the reversioner ; ^ but a covenant by a lessor to pay, on a valuation for all trees planted by the lessee, does not run with the land.^ 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 lessor ; because a covenant relating to a way, or other profit appur- tenant, goes with the tenement and binds the assignee.^ The right of renewal, also, constitutes a part of the tenant's interest in the land, and a covenant to renew is consequently binding upon the assignee of the reversion. The grant of an additional term is, in fact, for many purposes considered a continuation of the former lease ; and if there is nothing in the lease to show that the renewal was intended to be confined personally to the lessee, the right under the covenant devolves upon his executors, without their being particularly named.* § 263. But the covenants of seizin, of a right to convey, and against encumbrances,^ are personal covenants, not running with the land, or passing to an assignee ; for, if not true, there is a breach of them as soon as the deed is executed, and they become mere choses in action, which are not technically assignable.^ So a covenant on the part of the lessor to pay the lessee, without saying his assigns, for a building not yet erected, to be built during the term, does not run with the land.'^ Nor are the lessor's covenants to purchase at an appraisal, the permanent improvements made by the lessee ; to pay the debt of a third person ; or to surrender certain personal chattels ; included in a lease, of this character, or in either case, binding upon an assignee.^ Covenants running with 1 Jourdanv.Wilson, 4Bani. &Ald.266. « Sprague v. Baker, 17 Mass. R. 588; 2 Grey v. Cuthbertson, 2 Chit. 482; 5 Cow. R. 117; Gilbert u. Bulkley 6 4 Doug. 351. Conn. 262. 8 Cole's Case, 1 Show. 388 ; Carth. 823. « 4 Kent, Com. 459 ; 2 Johns. R. 1 ; * Piggott V. Mason, 1 Paige, R. 412; 3 Marsh. R. 324; Chapman v. Holmes, 5 Winslow V. Tighe, 2 BaU & Beat. 195 ; Halst. R. 20 ; Biokford v. Page, 2 Mass. Randall v. R\jssell, 2 Merir. 197 ; Hyde v. 455. Por the same reason, corenants that Skinner, 2 P. Wms. 196 ; Roe dem. Bam- are broken before an assignment do not ford V. Hayley, 12 East, 469 ; Vernon v. pass as incident to the land. Shelby v. Smith, 5 Barn. & Aid. 11. A surety's Hearne, 6 Yerg. R. 512. separate coTenant, to guarantee the pay- ' Thompson v. Rose, Cow. R. 266. ment of rent, runs with the land, and * Coffin v. Tolman, 4 Seld. R. 466 ; 5 passes to the grantee of the reversion, Co. 16 ; Dolph v. "White, 12 N. Y. R. who may sue in his own name upon it. 296 ; AUen v. Culver, supra. AUen V. Culver ; 3 Den. R. 284. SEC. I.] OP COVENANTS. 189 the land are divisible, and will bind the assignee of a parcel of the estate demised, in respect of the parcel assigned to him, as to re- pair ; 1 or to pay rent of the part occupied by him.^ But, as respects the liability of a lessee, it is not altered by a transfer of the whole or a part of his estate ; for his privity of contract with the lessor is not thereby determined, and he still remains liable on his covenant to pay the entire rent.^ § 264. Covenants are also either joint or several, and sometimes both joint and several. Whether a covenant is joint or several, de- pends upon the subject-matter of the covenant, and the interest that passes by it, and not upon the precise language made use of. 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 be joint or several.* If the interest is joint, the action must be joint, in the name of all the covenantees ; al- though the words of the covenant are several. And if the interest of the covenantees be several, the covenant will be several, although the terms of it be joint.^ If two lessees covenant jointly and sev- erally at the beginning of a lease, these words extend to all their subsequent covenants, notwithstanding the intervention of cove- nants on the part of the lessor.^ And where a person covenants with two or more, and with each of them, if each of the covenan- tees 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 constitute a separate covenant.' It has been held, also, that a covenant 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 1 Congham u. King, 1 Eol. Abr. 522. * Slingsby's Case, 5 R. 18, b ; James 2 Stevenson v. Lambard, 2 Bast, R. v. Emery, 8 Taunt. 248 ; Quackenboss v. 575. Where a covenant which runs with Lansing, 6 Johns. R. 49; and jper Den- the land is divisible in its nature, if the . man, C. J., in Hopkinson v. Lee. entire interest in different parcels of the ^ Per Gibbs, J., in James v. Emery, land passes by assignment to different supra; Withers v. Birch, 3 B. & C. 254. individuals, the covenant will attach upon The New- York Code of Procedure, each parcel pro tonto ,• and the assignee of § 111, embodies this doctrine, and pro- each parcel will be answerable for a pro- vides that every action must be prosecuted prfrtionate part of the common burden, in the name of the real party in interest, and will be exclusively liable for the " Duke of Northumberland v. Erring- breach of any covenant which related to ton, 5 Term R. 522. his part alone. Astor v. Miller, 2 Paige, ' Anderson v. Martindale, 1 East, 497 ; R. 68 ; Van Home o. Grain, 1 ib. 455 ; ManseU v. Burredge, 7 Term R. 352. Touch. 199; Co. Lit. 385, a. ^ Southcote v. Hoare, 3 Taunt. 89; 3 Gro. Eliz. 633. Sorsbie v. Park, 12 M. & W. 146. 190 LAW OF LANDLORD AND TENANT. [CHAP. VII. 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 be dead, the representative only of the survivor.^ § 265. Whether covenants are dependent or not is to be col- lected from the sense and meaning of the parties, and not from any technical words in the instrument; and their precedence depends on the order of time in which the intent of the transaction requires their performance, and not on the order in which they stand in the deed.^ Where a covenant is part only of the considera- tion on one side, it is an independent covenant, and not a condi- tion precedent.* If one party covenant to do one thing, the other party doing another, it is not a condition precedent, but a mutual covenant.^ Where one party bound himself to labor for another three years, and the other party agreed to provide for him a suitable dwelling-house, and pay him a certain sum every three months during the term, it was held, in an action for negligently doing the work, that the covenant to provide the house was a distinct and independent covenant.^ If there be any consideration for the covenant of one party, besides the covenants of the other, and that consideration has been received by the former, his covenant will be considered as independent.' But where acts are to be done simul- 1 Ludlow V. McCrea, 1 Wend. 228 ; of the parties ; and they are to he con- Catlin V. Barnard, 1 Aik. Vt. E. 9. strued according to that intention, as it 2 Ayler v. Wilson, Comst. E. 319 ; may be collected from the instrument. Eowan v. Woodward, 2 Marsh. (Ky.), E. Selden v. Pringle, 17 Barb. E. 458; 1 T. 140. A joint judgment cannot be sus- E. 638 ; 6 ib. 665. tained against two under-tenants, who ^ Bone v. Eyre, 2 W. Bl. 1312. When may be each of them liable for rent, mutual covenants go to the whole con- where it appears that there was no joint sideration on both sides, they are mutual occupation of the premises. Pierce v. . conditions, the one precedent to the other ; Minturn, 1 California, E. 470. but when the covenants go only to a part ^ Tompkins v. Elliott, 5 Wend. E. of the consideration, then a remedy lies 496 ; Jones v. Barkley, 2 Doug. 684 ; on the covenant to recover damages for a Gardiner v. Corson, 15 Mass. 504 ; Par- breach of it, but it is not a condition pre- mele v. Oswego & Syracuse E. E. Co., 6 cedent. Pepper v. Haight, 20 Barb. E. N. Y. E. 74; 5 ih. 247. 429; and see Grant v. Johnson, 5 N. Y. * Couch V. Ingersoll, 2 Pick. E. 300; E. 247; Bennetw. Pixley, 7 Johns. E. 249. Carpenter v. Creswell, 4 Bing. 409 ; 1 ^ Betts v. Perrine, 14 Wend. 219. Moore & P. 66. The same words may ' Tileston v. Newell, 13 Mass. 406. operate as either a condition precedent or Where it appears from the terms of the subsequent, according to the nature of the agreement, or the nature of the case, that transaction, and as evincing the intention the tilings to be done were not concur- SEC. I.J OP COVENANTS. 191 taneously, and each is the consideration of the other, the covenants are dependent.^ § 266. Covenants may be void when considered witli reference to the instrument in which they are contained, or tlie estate on which they depend. Tims, where a deed is void, all the covenants de- pendent 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 existence 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, that the covenant could not subsist without an estate, and, as no estate passed, the assignee could not maintain an action.* § 267. A covenant to do any thing, which, upon the face of it, appears to be prejudicial to the public interest, or otherwise con- trary to law, is void.^ If a man covenants not to do a thing which it is lawful for him to do, and a subsequent act of the legislature compels him to do it, the act repeals the covenant ; or if he cove- nants to do a thing, and then a statute is made, which compels him not to do it, the covenant in^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 J § 268. And although a covenant may not be absolutely void or rent, but that the performance by one ker «. Parmelee, 20 Johns. E. 130; John- party was to precede that of the other, son v. Wygant, 11 Wend. E. 48; Wil- then he who was to do the first act may hams v. Healey, 3 Den. K. 863. Mere be sued on his default, although nothing readiness to perform in such a case is not has been done or offered on the other, sufficient, ib. West!). Emmons, 5 Johns. E. 179; Slocum ^ Soprani v. Skurro, Yelv. 18. V. Despard, 8 Wend. E. 615; Morris v. ' Noke v. Awder, Cro. Eliz. 373, 436. Sliter, 1 Den. E. 69. * Capenhurst v. Capenhurst, Eaym. 1 Dakin v. Williams, 11 Wend. 67. 27; Waller v. Dean and Chap, of Nor- Whererer there are mutual agreements wich, Ow. 136 ; Waters v. Same, 2 Brown of the parties, the thing to be done by the & Gol. 158 ; Wade v. Mervin, 11 Mass. E. one, being the consideration of the thing 280 ; Phelps v. Decker, 10 ib. 267. to be done by the other, and both are to ^ Low v. Peers, Burr. 2225. be performed at the same time, they are ^ Brick Presbyterian Church v. The dependent, and neither party can recorer Mayor, &c., of New York, 5 Cow. E. against the other, without performance or 538 ; BuUer, N. P. 165. a tender of performance on his part. Par- ' Jaques v. Withy, 1 H. Bl. 65. 192 LAW OP LANDLORD AND TENANT. [CHAP. VII. illegal, it may yet be of so hard and oppressive a character, that a court of equity will refuse to enforce it. Thus, a lease of mines contained a covenant, that if the lessor should, at any time before 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 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 ought not to enforce it, or grant an injunction to prevent a breach of it.^ § 269. A covenantor cannot, by any act of his own, short of per- formance, discharge, or in any manner qualify his express covenant, without the concurrence of the covenantee.^ But any positive act of prevention by the covenantee will release the covenantor ; as if a man covenants with another to collect his rents in such a town, and then interrupts him ; ^ 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 the day, and holds the lessee out.* The covenant, however, would not be dispensed with, if the cove- nantee merely forbids the covenantor to proceed with the draining or building.^ § 270. Where the act of one party is the cause why the covenant cannot be performed by the other, performance by the latter 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. ^ The omission of the covenantee to do some act necessary on his part to the exe- cution of the 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 1 Talbot V. Ford, 13 Simons, 173. « Barker v. Fletwel, Godb. 69: Porter ^ Stone V. Dennis, 3 Porter, E. 231 ; v. Stewart, 2 Aik. 427. 1 Dev. & Bat. 402. e Marshall v. Craig, 1 Bibb. 379 • 8 Shaw V. Hurd, 8 Bibb. 872; 5 Mass. Couch v. Ingersoll, 2 Pick. R. 292; Harn- 67- ham v. Ko^s, 2 HaU, E. 169. * Carrol u. Bead, Cro. Eliz. 374; s. c. Ow. 65; s. c. Carith v. Eeed (Mo.), 412. SEC. 11.] OP CONDITIONS. 193 sufficient excuse for the non-performance of the covenant by the other also.^ So, where the whole consideration fails, and a stipula- tion becomes incapable of being substantially performed in the manner intended by the parties, by the voluntary act of either, the other is not bound to proceed, but is at liberty to decline perform- ance on his part.^ And if performance of another tiling, 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 will invalidate the instrument so far only as concerns him whose seal is taken offi* 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. A condition is a qualification annexed to an estate by the grantor, whereby the estate may be enlarged, defeated, or created, upon an uncertain event. And its principles apply to leases, as well as to conveyances in fee. 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 reversion. If he committed waste, or did any other act which, in the eye of the law, tended to defeat or divest the estate in reversion, the particular iTwyford v. Buntley, Freem. 121; 408, 470, 546; s. c. 5 Co. 22, b; 2 Rol. Parker v. Parmele, 20 Johns. E, 130. 30. 2 Kleine v. Catara, 2 Gallis. R. 74. ^ Kees v. Overbagh, 6 Cow. R. 746. ' Warren v. Mains, 7 Johns. R. 476. And see, ante, p. 15. * Matthewson v. Lydiate, Cro. Eliz. 17 194 LAW OP LANDLORD AND TENANT. [CHAP. VH. estate was forfeited. Even the rents and services of the feudatory were considered as conditions annexed to liis fief; and for the non- payment or non-performance of any of them, the lord might re-enter without a reservation to that effect in tlie deed creating tlie 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 tech- nically 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 for years, or for life, and therefore relates to the determinable qualities of an estate. § 272. Conditions in law are now generally called 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. The principal difference between a condition and a limita^ tion is, that a condition does not defeat the estate when broken, until entry by the grantor or his heirs ; but a limitation marks the period which is to determine the estate, without entry or claim,* 1 4 Kent, Com. 121. gency happening, unless the grantor takes 2 Co. Lit. 214, b ; 10 Eep. 41 ; Shep. advantage of the breach of condition by- Touch. 117. entering. And this rule applies to estates 8 Co. Lit. 214, b. Where an estate is for years, where the condition is so so expressly limited, by the words of its framed that the estate becomes void, at creation, that it cannot endure for any the election of the lessor. Per Johnson, longer time than until the contingency J., in Beach v. Nixon, 5 Seld. E. 35. happens upon which the estate is to fail, And see Parmelee v. Oswego & Sy. R. R. this is a limitation. On the other hand, Co. 2 Seld. R. 80; s. o. 6 N. Y. E. 74. when an estate is expressly granted, upon * Stearns v. Godfrey, 16 Maine E. condition in deed, the law permits it to 160 ; 1 Prest. on Estates, 45 ; 10 Watts, endure beyond the time of the contin- 358. SEC. II.] OP CONDITIONS. 195 and no act is necessary to vest the right in him who has the next expectant interest.^ Whether the particular form of words made use of amounts to a condition, a limitation, or a covenant merely, is a matter of construction, depending upon the true meaning of the contract. Thus, where a lease contained a clause that, in case of a violation 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 a condition.^ The intention of the party to the instrument, when clearly ascer- tained, will, of course, always control ; and conditions and lim- itations are not to be raised by mere inference or argument. The distinctions on this subject are very subtle and artificial ; but the construction of any contract will, after all, depend less upon arti- ficial rules than upon the application of good sense and sound equity to the object and spirit of the contract in each particular case.^ § 274. Some conditions are implied in the relation of landlord and tenant ; as, that a tenant shall always have the quiet enjoy- ment 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 feoffinent in fee, it produced a forfeiture of his estate.* But this latter relic of feu- dalism 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 and no other estate than the grantor himself had.^ § 275. Where the condition must be performed before the estate 1 Den V. Hance, 6 Halst. E. 244; 1 make them such, other words defining Prest. on Estates, 46. the meaning, and learing no doubt of the 2 Beach v. Nixon, mpra. And in gen- intention of the parties, must be added, eral where a lease contains a clause, that Tallman v. Coffin, 4 N. Y. R. 134 ; Jack- the landlord inay re-enter upon the breach son v. McClallen, 8 Cow. E. 295. of a condition the lease is not avoided by * Co. Lit. 233, b. It was a rule arising a breach, but only made voidable at his out of reasons connected with military election ; and the estate will continue after tenures, that if the feudal tenant denied breach, unless the landlord exercises his that he held the feud of his lord, or did election. Stuyvesant v. Davis, 9 Paige, any other act inconsistent with his actual R. 427 ; 6 Bar. & Cr. 519 ; 2 Russ. 174 ; relations to the lord, such denial or incon- 21 Ind. R. 454. sistency produced a forfeiture of his whole 8 4 Kent, Com. 132. A covenant to estate. And this principle applied to surrender, &c. (on the lessor's paying for leases, as well as to estates in fee. 1 the improvements), is not conditional. Criuse, Dig. 266, § 40. Words thus parenthetically inserted have ^ DeLancy v. Ganong, 5 Seld. (9 N. Y. never been adjudged a condition; and to R.) 1; 1 E. S. of N. Y. 738, § 136. 196 LAW OP LANDLOED AND TENANT. [CHAP. VII. can commence, it is called a condition precedent ; but where the effect of a condition is either to enlarge or defeat an estate already- commenced, 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 divest- ing 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 stipulated contingency. Thus, if an estate be limited to A., upon his marriage with B., the marriage is a pre- cedent 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 condition precedent, and must be fulfilled before the estate can take effect. But where a lease is made for years, on condition that the lessee shall pay a sum of money on such a day, or else his estate shall be void, this is a condition subsequent ; for here the estate is executed, but the continuance of it depends upon the breach or performance of the condition.^ § 276. No precise words are required to make a stipulation a condition precedent or subsequent, neither does it depend on the circumstance whether the clause is placed prior or posterior in the deed, so that it operates as a proviso or covenant; for the same words have been construed to operate as either the one or the other, according to the nature of the transaction, and the intention of the parties creating the estate.^ Thus where, in covenant on an inden- ture of lease for seven years, for non-payment of rent, the lease con- tained the usual covenants, to pay rent and repair, and a proviso that if the lessee, at the end of the first three or five years, should be desirous of quitting, and should give six months' notice thereof before the expiration of the three first years, then from and after the expiration of the first three years, and payment of all rents, and performance of the covenants on the part of the lessee, the inden- ture should be void ; it was held that the payment of rent, and per- formance of the other covenants by the lessee, were conditions precedent to the lessee's determining the term at the end of the 1 WeUs V. Smith, 2 Ed. Ch. R. 78; 451; Goodwin v. Lynn, Wash. C. C. E. Taylor v. Mason, 9 Wheat. 325 ; Shep. 714 ; Tompkins v. Elliott, 5 Wend. 496 ; Touch. 17. Gardiner v. Corson, 15 Mass. K. 500; '^ Hotham v. E. I. Company, 1 Term Nicol v. N. Y. & E. R. E. 2 Kern. E. B. 645; Powers et al. v. Ware, 2 Pick. 121. SEC. II.J OP CONDITIONS. 197 first three years, and that merely giving six months' notice, expir- ing with the first three years, was not sufficient for that purpose. Lord Kenyon, C. J., observing that it had frequently been said, and common-sense seemed to justify it, that conditions were to be con- strued to be either precedent or subsequent, according to the fair intention of the parties, to be collected from the instrument ; and that technical words, if there were any to encounter such intention (and there were none in this case), should give way to that inten- tion ; and that it was impossible to read this lease without seeing that the parties intended that the tenant should do every thing re- quired of him, before he could put an end to the lease.^ A grant containing a stipulation that the grantee shall allow all people to pass and repass, to fish, hunt, ^c, on the premises, has been held to be neither an exception nor a reservation, but a condition subsequent, upon a breach of which the title of the grantee might be divested.^ So a grant of land to a Itown, 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. Conditions precedent, which are to create an estate, will always 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 be sufficient ; but conditions which are to defeat an estate will be construed strictly.* Prom the nature of a condition, it is obvious that equity cannot relieve from the forfeiture of an estate, arising upon a condition precedent un- performed. But it is different as to the breach of a condition sub- sequent, 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, provided that satisfactory amends can be made in damages.^ 1 Porter v. Shepherd, B. E. E. 36 ; G. = Parsons v. MUler, 15 "Wend. E. 564. 3, aflfcming judgment of C. B., 6 Terra "Where a lessee covenants to pay rent, and E. 665. And see American cases to the a landlord covenants that he, paying the same effect. Harding v. Kretsenger, 17 rent, shall quietly enjoy, &c., the pay- Johns. K. 293 ; 16 ib. 267 ; 10 ib. 266 ; ment of rent is not a condition precedent Hopkins ». Young, 11 Mass. E. 302; 15 to the performance of a covenant for quiet ib. 500 ; Northrup v. Northrup, 6 Cow. enjoyment. Dawson v. Dyer, 5 A. &. E. 296 ; Dox v. Day, 3 "Wend. E. 356 ; Lewis 584. And see, ante § 265 and notes. V. "Weldon, 3 Rand. E. 71 ; Coun v. Lewis, ' Hayden v. Stoughton, 5 Pick. E. 5 Littell, 66 ; Alexander v. Mann, 6 Mon- 528 ; Brigham v. Shattuck, 10 Pick. 309. roe, 360 ; Bank of Columbia v. Hagner, 1 * Ld. Eaym. 335; Co. Lit. 220; a. Peters, E. 464. ^ "Walker v. "Wheeler, 2 Conn. E. 299 ; 17* 198 LAW OP LANDLORD AND TENANT. [CHAP. Til. § 278. The words generally used to make a condition are, upon condition, or 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 ■■WQXQ, provided always, and it is covenanted and agreed between the parties, that the lessee shall not aliene, there is both a condition by force of the proviso, and a covenant by virtue of the other words.i 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 cove- nant, the court will incline to the latter construction ; for a cove- nant is preferable for a tenant. But where a man covenanted and agreed to let his land to another for five years, provided always that the lessee should pay him annually, during the term, a certain sum of money, it was held to be a covenant for the payment of rent, as well as a condition, which might defeat the estate.^ § 279. The word ^rom'so in a lease, implies a condition, unless there are subsequent words which change it into a covenant, or a penalty is annexed for non-performance. But where the proviso is, that the lessee shall perform or not perform a thing, and no penalty 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, tmless 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 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 con- dition if she lives so lonxj and keeps herself such, without farther explanation as to how she is to keep herself, for the intent is \m- certain.^ Wells V. Smith, supra, Conn. E. 26 ; Scott Leon. 16 ; Cro. Eliz. 414. A covenant to V. Tyler, 2 Bro. C. C. 431 ; Duffield v. surrender, &e., " on the lessor's paying Elwes, 1 S. & S. 239 ; 4 Russ. E. 425. for the improvements," is not conditional. 1 Co. Lit. 203, b ; 8 Bam. & Cress. Words thus parenthetically inserted have 308. never been adjudged a condition; and, to 2 Jackson v. McLeUan, 8 Cow. R. 395. make them such, other words, defining " Livingston v. Stickles, 8 Paige, E. the meaning and leaving no doubt of the 403 ; 7 N. Hamp. E. 142. intention of the parties, must be added. * Jackson v. Alien, 8 Cow. R. 221 ; Tallman v. Coffin, 4 N. Y. R. 134 ; Jack- Gray V. Blanchard, 8 Pick. R. 284 ; Simp- son v. McClallen, 8 Cow. E. 295. A stip- son V. TittweU, Cro. Eliz. 242. ulation at the end of a lease, not to make 5 Delancy v. Ganong, 5 Seld. E. 1. any alterations in the buildings without 8 Com. Dig. Condition (A.), 6; 3 the consent of the lessor, is not a condition SEC. II.J OP CONDITIONS. 199 § 280. A lessor having the jus disponendi may annex whatever conditigns 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 such lease is executed, it is valid.^ Where the prompt performance of a condition is necessary, to give the grantee the whole benefit designed to be secured to him, or where immediate enjoyment constituted the motive for the con- tract, the grantee forfeits the estate unless he performs the condition in a reasonable time.* But if no time is limited for the perform- ance of the condition, the grantee has, in general, his whole life- time for performance.^ 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 on him.® § 281. If a condition 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 is contrary to law, or repugnant to the nature of the estate granted, — it is yoid, 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 parts. As if it be to make asstir- ance to A. as he shall devise ; or, upon default, to pay five hundred pounds ; if A. does not tender an assurance, he need not pay the money. The same principle applies, where one part becomes im- possible 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. Thus, where a lease was made to A. B., with a proviso that for the breach of which the lease will be '^ Per Marshall, C. J., 3 Peters, B. forfeited. Jacksonu. Harrison, 17 John. K. 376. 66. ^ Williams v. Bank of United States, 2 1 Lord Cromwell's Case, 2 Rep. 71 ; Peters, 102. Eoe V. Galliers, 2 Term E. 133. ' People w. Manning, 8 Cow. K. 299 ^ GriiSn v. Stanhope, Cro. Jac. 456 ; 4 McLachlan v. McLachlan, 8 Paige, 535 JI S; S 30 Holland v. Bouldin, 4 Mason (Ky.), E, 's Jb. ; 2 Saund. E. 48 ; Shep. Touch. 147 ; Co. Lit. 206, a ; 8 Term E. 60 126 Scovel V. Cabel, Cro. Eliz. 107 ; 6 Peters 1 Hamilton v. Elliott, 5 S. & E. 384. E. 691 ; 10 Pick. E. 507. 200 LAW OF LANDLORD AND TENANT. [CHAP. VII. 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 mpther), that then the estate limited to C. should cease, and be utterly Toid, it was resolved that this was a void condition, forasmuch as it was repugnant to the estate limited.^ § 282. A mere personal disability will not be allowed to excuse the non-performance of a condition ; and, therefore, where an estate is granted to an infant or feme covert on condition, they are bqund to strict performance ; and, if broken during the minority of the infant, the land is lost for ever.^ If it be a condition 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 depend 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 destroy 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. In reference to estates which are determinable upon cer- tain 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 unwar- rantable restraint upon trade, or marriage, or the power of alien- ation. Neither must it be a stipulation for that which is immoral. Conditions of this latter class are either to do something that is malum in se or malum prohibitum, or to omit the doing of some- thing that is a duty ; or else to encourage such crimes and omis- sions. Such conditions the law will always, and without any regard to circumstances, defeat ; being concerned to remove all temptations and inducements to crime.^ § 284. It is a general rule also, that a condition, upon a feoff- ment in fee, not to alien at all is void for repugnancy ; for a man cannot dispose of his whole interest in a thing, and yet retain a 1 Com. Dig. Condition (K.), 2; Taylor = Taylor v. Mason, supra; Arnold v. V. BuUen, 6 Cow. R. 627 ; 2 Leonard, R. United States, 9 Cranch, 104 ; 12 Ves. R. 132. 504 ; Mookley v. Eiggs, 19 Johns. R. 69. 2 WUUams v. Fry, 2 Lev. R. 21 ; Cro. * PuUen v. Brady, 2 Atk. R. 587. Jac. 374; 8 Co. E. 446. 6 i p. -Wms. R. 189. SEC. II.] OP CONDITIONS. 201 control over it. But at common law, a grantee may be restrained from assigning for a particular time, or to a particular person ; and 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 per- son, who is named, would be a valid condition at the present day ; it is certain, however, that courts now look with great jealousy upon all restraints on the free exercise of that inherent right of aliena- tion, 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 there- fore entirely void.^ So, where a lease in perpetuity contained 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 pos- session under his contract to purchase ; Mr. Chancellor Walworth, without undertaking to decide that the complainant had no remedy at law, either to recover the tenth sales, or to enforce a forfeiture of the lease, held, that the lessee had no remedy in equity ; that such a covenant and condition was a restraint in the nature of a fine upon alienation, mconsistent with the spirit of our institutions, and injurious to the community ; and that a court of chancery would not therefore interfere to enforce tlie performance of such covenants and conditions, in cases where the landlord, by the terms of his lease, had not, by his contract, secured to himself a legal right, as distinguished from an equitable claim, to enforce a hard bargain for which the law gave him no right of action.^ § 285. In another case which previously arose in the Supreme Court of the same State, a similar covenant in a lease, to a man, his heirs and assigns for ever, paying a certain rent, and that in case the lessee should sell, he would first offer it to the lessor, and if the ^ Doe dem. Mitchenson v. Carter, 8 ^ Newkirk u. Newkirk, 2 Caiues, K. Term R. 60; Co. Lit. 223, a; 10 E. 845. 38 b. ^ Livingston v. Stickles, 8 Paige, E. 403. 202 LAW OP LANDLORD AND TENANT. [CHAP. Til. lessor should not purchase, he would pay him one-tenth of the pur- chase-mouey, and if the lessee did not keep and perform all the conditions, the estate should cease, and the lease hecome void ; it was held that the condition was a lawful and valid condition, and that the nature of the estate created by such lease was a fee-simple conditional, 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 bemg 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 pur- chase 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 each sale by the grantee, are void, as repugnant to the estate granted, and as placing an illegal re- straint upon the power of alienation.^ 1 Jackson dem. Lewis v. Scliutz, 18 emptores was not regarded as in force. Johns. E. 174. The object of that statute was to support ■^ Depeyster v. Michael, 2 Selden, K. military tenures, by securing to the chief 468. This case was that of a lease of lords of fees, their escheats, wardships, lands in fee, where the lessor, in addition &c., and by transferring the tenure of to an annual rent, reserved to himself, his lands from the mesne to the chief lords, the heirs and assigns, the right to purchase statute entirely devested the former of the premises in case the lessee, his heirs any reversion whereby, on a forfeiture, the or assigns, should choose to sell, on pay- estate might revert to him. It was com- ing three-quarters of the price demanded, patent, therefore, for our citizens, unre- the lessee covenanting to make the first strained by such a law, and under the ofier to the lessor, his heirs or assigns, principles of feudal tenures, admitting of upon those terms ; and in case the oflFer such reversion, to convey lands in fee, to should be declined, then the lessor re- be holden directly of them and their served to himself, his heirs and assigns, heirs ; and such grantors, being entitled to one-fourth part of all moneys which should the reversion or escheat on failure of the arise from the selhng, renting, or dispos- issue of the grantee, could lawfully annex ing of the lands by the lessee, his heirs or conditions to the power of aUenation. assigns, when and as often as the same But the acts of 2'2 October, 1779 (1 Jones should be sold, rented, or disposed of; & Var. 44), transferring the seigniory of with the condition, that, in ease of a sale aU lands, escheats, &c., from the king to or other transfer without the payment of the people of this State, and the act of 20 such one-fourth to the lessor, his heirs or February, 1787, concerning tenures (1 E. assigns, the sale or transfer should be L. 70), put an end to all feudal tenures void, and the premises should revert to between one citizen and another, and sub- the lessor, his heirs and assigns, who stituted in their place a tenure between might then re-enter upon the premises, each land-holder and the people in their and repossess, and enjoy the same as of sovereign capacity, and thus removed the his former estate. It seems from this entire foundation on which the right of case, that, during the New- York colonial the grantor to restrain alienation formerly government, the EngUsh statute of quia rested. Those statutes are in their terms SEC. II.] OP CONDITIONS. 203 § 286. If the condition is, that the lessee will not do any particu- lar act without leave from his lessor, when leave is once granted, the condition is gone for ever ; for a condition is to be taken strictly, and by one license it is satisfied.^ If the license dispenses with but part of the condition, it is a dispensation of the whole ; as where a lease .was made to three, on condition that they, nor any of them, should alien without license of the lessor, and one by license aliened his part, the condition was held to be entirely dispensed with, and the other two might alien without further license. And where a lease contained a clause that the lessee should not assign without leave from his lessor, the lessor, under a license to assign part of the premises, may assign the whole, without incurring a forfeiture. But the license must be such as is required by the lease ; and, therefore, where the lease required the license to be in writing, a parol license was held to be insuiBcient.^ § 287. The forfeiture of a lease by breach of covenant or condi- tion may, however, be waived in like manner as a forfeiture for non-payment of rent, or a notice to quit ; for if the landlord does any act, with knowledge of the breach, which can be considered as an acknowledgment of a tenancy still subsisting, he waives the for- feiture ; as, if he receives rent which has accrued subsequently to the forfeiture, unaccompanied by circumstances which show a con- trary intention.^ But it is not waived by a parol assent, or a mere silent acquiescence ;* nor by an offer to accept payment if made immediately.^ We shall have occasion, however, to treat of this matter more fully, when we come to consider the subject of termi- nating a lease by forfeiture, and shall not, therefore, pursue it any further at present. § 288. 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 ; 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 ; ^ although a restrictive, and since their passage all ' Jackson v. Sheldon, 5 Cow. 448; restraints upon alienation, contained in Fox u. Swann, Styles, 482 ; Goodright u. conveyances in fee, whether executed Davis, Cow. 808. prior or subsequent to the date of those * Gray v. Blanchard, 8 Pick. 292 ; 1 acts, are held to be void. Johns. Ca. 125. 1 Dakin v. Williams, 17 "Wend. 447; "* Hutcheson v. McNutt, 1 Ham. R. 21. Dumpor's Case, Cro. Eliz. 815; s. c. 4 ^ Canal Co. v. Railroad Co. 4 Gill & Co. 119, b ; 13 Wend. R. 530. Johns. 121 ; Willard v. Henry, 2 N. H. R. 2 Roe V. Harrison, 2 Term R. 425; 120; Chalker w. Chalker, 1 Conn. E. 79. Seers v. Hind, 1 Ves. Jr. 294. 204 LAW OP LANDLORD AND TENANT. [CHAP. VII. different rule formerly prevailed with regard to a term of years, where the grantor was not bound to re-enter, since he had never devested himself of his estate in the lands.^ And for this reason, a distinction existed between leases for life, and those for a term of years ; in the latter case, it was said, that on a breach of the condi- tion, the lease absolutely determined, and could not be set up again by the acceptance of rent, or any other act on the part of the lessor .2 But this doctrine is no longer recognized, and it is now held, in relation to leases for years as well as those for life, that the happening of the cause of forfeiture only renders the lease void as to the lessee. It may be affirmed by the lessor; and then the rights and obligations of both parties will continue without regard to the forfeiture. If, therefore, the lessor, after notice of forfeiture, does any act which amounts to a dispensation of the forfeiture, the lease which was before voidable is thereby affirmed.^ § 289. The substantial performance of a condition is 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 condi- tion becomes impossible by the act of G-od, the obligation is dis- charged. As where the obligee in a condition subsequent died ; or a man covenanted to build a house before such a day, and after- wards the plague came there before that day, and continued there until after the day, the condition was held to be dispensed with.* So where the law forbids the act conditioned to be performed, it is ex- cused.s The same result follows, where the party accepts another thing in satisfaction, or is himself in default ; as where the condi- tion is the payment of a sum of money, and the payee is himself out of the commonwealth ; ^ or the obligation is to build or repair a house, and the obligee disturbs or forbids the performance. But where the lessee covenanted to drain the water upon the land be- fore such a day, and after the lessor entered before the day, and continued there until the day was past, it was held to be no excuse, unless the lessor disturbed him in his operations.' 1 Lincoln Bank v. Drummond, 5 Mass. * Merrill v. Emery, 10 Pick. R. 507 ; 1 R. 321. Eol. Abr. 450. 2 Kimersly v. Orp, 18 Johns. E. 183 ; ' Holland v. Bouldin, 4 Munf. R. Goodright v. Davids, Cowp. 804 ; Coon v. 150. Brickett, 2 N. H. E. 163 ; Doe v. Bancks. " Williams v. Bank tJ. S., 2 Peters, R. 4 B. & A. 401 ; Browning «. Beston, Plow. 102; 6 ib.- 745; Bradstreet v. Clark, 21 135. Pick. 389. " Clark V. Jones, 1 Denio, R. 516; ' Carel i>. Read, Cro. Eliz. 374; s. c. Arnsley v. Woodward, 6 B. & C. 519; 4 Moore, 402; Jackson v. Crafts, 18 Johns. B. & A. 401 ; 2 Chit. R. 247 ; Garner v. R. 110. Hannah, 6 Duer, B. 262. SBC. II.J OP CONDITIONS. 205 § 290. 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 the feudal law, after the lord had granted out his lands, he still had the right of seign- iory, as well as the right to all the other services reserved 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 dis- tress of the freehold, except by the King's writ, and so left the ten- ant's chattels, as the only subject for the lord's distress. After which, and as a convenient substitute therefor, the practice was introduced, of inserting a power of re-entry, for the non-payment of rent, on granting a lease ; which gradually extended itself to other covenants and causes of forfeiture besides the non-payment of rent.^ § 291. This clause enables the lessor, his heirs, or assigns, in case of a breach of condition or covenant, to re-enter upon the demised 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, however, may still enter and take advantage of a breach of condition, or other common-law forfeiture, by ejectment, without this clause.^ But in a case of a breach of covenant, in the absence of a proviso for re-entry, the lessor would possess no such power ; the mere breach of a covenant, enabling him to sue for damages only.* Any mere covenant without the clause authoriz- '' Hargrave's Note to Co. Lit. 142, a,, at common law, but must be reserved by The right of re-entry is not a reversionary deed ; and all the conditions or stipula- or other estate in the land, but is a mere tions annexed thereto, must be strictly right of action, and if enforced, the gran- followed. Smith v. Blaisdell, 17 Vert. E. tor of the estate would be in, by the for- 199. feiture of the condition, and not by a ^ Wigg v. Wigg, 1 Atk. E. 383 ; Doe reverter. At common law, this right of v. Watt, 1 Man. & Ey. 694. action could not be granted over, and it * Pells v. Brown, 2 Cro. 591 ; 11 Mod. is only by force of the statute that the 61 ; 1 Atk. E. 388 ; 2 Bl. Com. 155 ; assignee of the lessor can now re-enter for Brown v. Kite, 2 Overt. E. 233 ; Den condition broken. But the statute did not dem. Bockover v. Post, 1 Dutcher, E. intend to convert this right into a rever- 285 ; Fox v. Brissac, 15 California E. 223. sionary estate, as has been sometimes A proviso for re-entry in a lease is to supposed. receive a reasonable construction like ^ Johns V. "Whitley, 8 Wils. E. 127 ; other contracts, and is not to be construed Doe V. Philips, 2 Bingh. E. 13. The with the strictness of conditions at law. right to re-enter for non-payment of rent Davis v. Elsam, 1 M. & M. 189. is not incident to the estate of the lessor ' 18 206 LAW OF LANDLORD AND TENANT. [CHAP. VII. ing a re-entry would afford but an indifferent security to the land- lord, 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. 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-nine years if A. and B. should so long live, was granted with a proviso for re-entry, in case the lessee should under-let the premises for the purposes of tillage, and an under- tenant 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 en- tering 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 re-entry, for condition broken, could have no advantage thereof, and that the defendant, who ploughed and sowed the land, was entitled to take the emble- ments.2 § 293. 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.^ Por 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 for part of the term, since the 1 Doe dem. Oldershaw v. Breach, 6 to cases not otherwise specially provided Esp. R. 106 ; Coe ;;. Watt, 8 B. & C. 208 ; for, yet such a general clause is compati- Doe dem. Raine v. Kneller, 4 C. & hie with a prior clause giving a right of I*- 3- re-entry, also after a certain period of de- 2 Johns V. Whitley, 3 Wils. 16 R. 127. fault in the rent. Van Rensselaer v. Jew- A right of re-entry may be eflFeetuaUy ett, 2 N. Y. R. 141. giren upon breach of covenants, including " King's Chapel v. Pelham, 9 Mass. a covenant to pay rent, as well as in terms 501 ; Doe dem. Barber c. Lawrence, 4 for non-payment of rent ; and though a Taunt. R. 23 ; Jackson v. Topping,' 1 general clause of re-entry can extend only Wend. R. 388. SEC. II.J OF CONDITIONS. 207 residuary estate in that case would belong to the executor .^ And a power to a particular person to enter, will not extend to his execu- tor, unless so mentioned.^ A residuary devisee, however, 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 estate thus specifically devised.^ And so, no doubt, may an as- signee of the reversion, as we shall presently see, by force of the statute. But, as a general rule, when no words of limitation are mentioned, the law will reserve the benefit of the condition to the heirs of the lessor.* § 294. 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 extinguishment of the estate in reversion, in respect of which the condition was made, will extinguish the condition also.^ As where a lease was made for a hundred years, and the lessee made 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 inci- dent was extinguished in the reversion in fee.^ It is not, however, necessary, that the party claiming should have an actual rever- sion, 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 breach of the condition, though he has parted with his whole term.^ Yet a third person cannot enter, unless he come in under the lessor ; therefore, if a lessee for twenty years make a 1 Van Rensselaer v. Hay, 5 Den. E. 477. * Co. Lit. 214, a ; 3 Atk. E. 134. 2 Hassel v. Gowlthwaite, Wils. 500; 1 ^ Dumpor's Case, 4 Co. 120; Fen dem. Mars. 359. A right of re-entry for the Matthews v. Smart, 12 East, 444. Upon non-payment of rent may be reserved a breach of the condition for the payment upon a conveyance in fee ; and is assign- of rent, the lease is not absolutely void, able with the rent. Van Eensselaer v. but voidable only ; the estate is not deter- Ball, 19 N, Y. E. 100. mined until the lessor actually re-enters ; ^ Hayden v. Stoughton, 5 Pick. 528 ; 10 for it is an estabhshed rule, that, when ih. 806, 463. Neither the executor, nor a, an estate commences by livery, it cannot devisee of one who has granted laud in be determined before entry. Garrett v. fee subject to rent, can maintain eject- Scouten, 3 Denio, 336. ment for rent in arrear which became ^ Thier v. Barton, Moore, 94; Webb payable in the lifetime of the testator, but v. Eussell, 3 Term E. 393. only for such as accrued since the will ' Doe dem. Freeman v. Bateman, 2 B. took effect in his favor. Van Eensselaer & A. 168. V. Hay, supra. 208 LAW OP LANDLORD AND TENANT. [CHAP. VH. lease for ten on condition, and then surrender to him in reversion, the reversioner, being in of a paramount estate, cannot take advan- tage of the condition.^ § 295. 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. If, however, the estate ceased by breach of condition without entry, as where, in a lease for years, it was expressly declared, that the lease was to become void by breach of the condition, the assignee of the reversion might take advantage of it.^ The statute 32 Hen. VIII. c. 3, 4, 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, and the Revised Statutes of New York have extended the provisions of the English statute by enacting, — " The 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 remained 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." ^ This latter clause, however, seems only declara- tory of the old law, for under the English statute it was held, that not only an assignee of the reversion in fee, but also /or life or years shall take advantage of a condition of re-entry.* Upon the con- struction of this statiite, the Court of Appeals in New York held that the grantee of a rent reserved in fee, was entitled to all the remedies which his grantor had, before. he parted with the rever- sion ; and 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 assignable, with the rent by force of the statute.^ 1 Chaworth v. Phillips, Moore, 876. ^ Co. Lit. 215, a : Verplanck v. "Wrieht 2 Co. Lit. 214, b; 3 Rep. 65, a. 23 Wend. R. 506. 3 R. S. 748, § 23, 25; Laws of 1805, ^ Va„ Eensselaer v. Hays, 19 N. Y. R. ch. 98. 68 ; Van Rensselaer v. BaU, ib. 100. In SEC. II.] OF CONDITIONS. 209 § 296. It is to be observed, however, that an assignee of part of tlie 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 rever- sion of two acres shall not enter for a breach of the condition ; for the condition being entire, cannot be apportioned by the act of the parties, but shall be destroyed.'- Yet, although 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.^ And it is to be observed that, in all these cases, it is in the option of the lessor alone whether he will avail himself of the right of re-entry or not ; even although, by the terms of the proviso, the term is to cease or become void upon the non-performance of the covenants, for the lessee can in no case elect that it shall cease.^ § 297. 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 forfeit- ure, and enable him to maintain an action ; for it is not until de- mand and non-payment that this condition is broken.* There may, however, by the special agreement of parties, be a re-entry for default in payment of rent, without a demand of it.^ In such case, the mere failure to pay with or without demand constitutes the breach, and a subsequent entry at any time is good.^ So if the ten- ant 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 forfeiture, 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 declared to be absolutely the very learned and elaborate opinion of ^ Twynam v. Peckard, 2 B. & A. Judge Denio, he states at length the ori- 105. gin and history of the several enactments, * Arnsby v. Woodward, 6 B. & C. 519 ; both in England and this country, in favor 6 M. & S 121; 4 B. & A. 401; Clark v. of assignees of reversions ; and shows Jones, supra. most conclusively that not only were the * Doe dem. Forester v. Windlass, 7 grantees of a perpetual rent charge ena- Term R. 117. We have elsewhere, post, "bled thereby to maintain an action on the § 493, seen the strict requisites of the covenants for the payment of rent, but demand, when the landlord proceeds to that the assignees of a grantor in fee re- enforce a forfeiture under the common serving such a rent have precisely the law, and independent of the statute, same remedy by entry for its non-pay- ^ Dormer's Case, 5 Coke, E. 41. ment, which the grantor himself had be- ^ Goodright v. Cator, 2 Dougl. 477 ; fore he parted with the right. Doe v. Masters, 2 B. & Cress. 490. 1 Co. Lit. 215, a; Dumpor's Case, 5 ' Jackson v. CoUins, 11 Johns. K. 1; Rep. 55, b ; Cro. Eliz. 833 ; 4 Leon. 27. Trustees, &c., v. Williams, 9 Wend. R. 147. 18* 210 LAW OF LANDLORD AND TENANT. [CHAP. Til. void in case of its non-payment.^ Accordingly, where the condi- tion was, that if the rent were suffered to be due and unpaid, the indenture, and the estate thereby created, should he void, it was held that the grantor should not be entitled to recover as for 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. The modern decisions hold it unnecessary that the land- lord, proceeding for condition broken, should make an actual entry, in order to take advantage of a breach of condition ; on the ground that the constructive entry, implied by an action of ejectment, is sufficient for the purpose, even where the estate to be avoided is one of freehold.^ But the necessity of proving a strict common-law demand, both as to time and place, still remains, wherever a for- feiture for 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 re-entry, in case of the non- payment of rent for twenty-one days, 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 at sunset, if the lessor insisted upon the forfeiture.^ Under a pro- viso for re-entry, if no sufficient distress is upon the premises at the expiration of fourteen days from the rent-day, the landlord is primd facie entitled to recover, by proof of there being no distress on some day after the fourteen, though that day be subsequent to the demise in the ejectment ; ^ and this clause must be strictly pursued, for every part of the premises must be searched, in order to ascertam 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 dis- training for rent in arrear, this being considered a waiver of the forfeiture.^ § 299. The Revised Statutes of New York dispense with all the 1 Co. Lit. 202, a; Clem's Case, 10 Cas. 126; Doe v. Alexander, 2 M. & S. Coke, 129 ; Doe v. Wandlass, 7 Term R. 525 ; Garrett v. Scouten, 3 Denio, 387. 120. * McCormick v. ComieU, 6 Serg. & 2 Jackson v. Kipp, 3 Wend. R. 231. Eawle, 151 ; Van Rensselaer v. Jewett, 2 As to the requisites of a common-law de- Comst. R. 147. mand of rent. See, post, § 493. 6 Doe dem. Wheeldon v. Paul, 3 C. & 3 Doe V. Masters ; Goodright v. Cator, P. 613. 2 Ld. Raym. 750 ; Bear v. Whistler, 7 « Doe v. Tuchan, 15 East, 286. Watts, 149 ; Jackson v. Cryster, 1 Johns. ' Rees v. King, Forrest, 19. 8 Norton v. Skeldon, 5 Cow, R. 448. SEC. II.] OP CONDITIONS. 211 formalities of a common-law demand, and provide that, in case of the non-payment of rent, and no sufficient distress is to be found upon the premises, an action of ejectment may he brought as a sub- stitute for the formal demand and re-entry at common law. This provision of the statute is taken from that of 4 Geo. II. c. 28, and has been followed in many of the States. It provides, " Wherever any half-year's rent, or more, shall be in arrear from any ten- ant to his landlord, and no sufficient distress can be found on the premises to satisfy the rent due, if the landlord has a subsisting right by law to re-enter for the non-payment of such rent, he may bring an action of ejectment for the recovery of the possession of the demised premises ; and the service of the declaration therein shall be deemed and stand instead of a demand of the rent in arrear, and of a re-entry on the demised premises.^ § 300. This statute does not extend to cases where the lease con- tains no clause of re-entry ; ^ nor where there is a sufficient distress upon the premises ; and, consequently, in such cases the lessor must proceed 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, could not be distrained without rendering the landlord a trespasser. Lord Tenterden held that proof of this was sufficient to satisfy the statute ; which meant no sufficient distress upon the premiises 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 Eng- lish statute it has also been held, that this provision has not done away with the necessity of a demand of rent, if the lease requires it, although such demand need not be made with all the particularity required at common law.^ § 301. But a recent statute of New York, which abolishes dis- tress for rent, now authorizes a re-entry for 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. 1 2 E. S. 505, § 30. Jackson v. "WycoflF, 5 "Wend. E. 53; Coon 2 Jackson dem. Van Eensselaer v. v. Brocket, 2 N. Hamp. E. 163 ; Hamilton Hogaboom, 11 Johns. E. 163. v. ElUott, 5 S. & E. 375; Gray w. Blan- n Doe V. "WandlasB, 7 Term E. 117 ; chard, 8 Pick. E. 284. Doe V. Eoe, 9 Dowl. 548. « Doug. E. 486; 5 D. & E. 711; 3 B. * Doe V. Dyson, Mood. & M. 77. & C. 752. 6 Jackson v. Kipp, 3 Wend. E. 230; 212 LAW OP LANDLORD AND TENANT. [CHAP. VII. It provides, whenever a right of re-entry is reserved and given to a grantor or lessor, in any grant or lease, in default of a sufficiency of goods and chattels whereon to distrain, for the satisfaction of any rent due, such re-entry may be made at any time after default in the payment of such rent ; provided fifteen days' previous notice of such intention to re-enter, in writing, be given by such grantor or lessor, or his heirs or assigns, to the grantee or lessee, his heirs, execiitors, administrators, or assigns, notwithstanding there may be a sufficiency of goods and chattels on the lands granted or demised, for the satisfaction thereof. And the notice may be served person- ally on such grantee or lessee, or by leaving it at his dwelling-house on the premises.^ This statute provides an additional mode of re- entry, by substituting a fifteen days' notice of the landlord's inten- tion to re-enter, in lieu of showing that there was no sufficient distress on the premises. It applies the remedy of ejectment, to a class of cases, to which it did not apply before, authorizing the re-entry of the landlord upon premises where there is a sufficient dis- tress, provided a notice of such intention, in writing, is served on the tenant fifteen days before the suit is commenced. This new remedy is not incompatible with the former one, which required the landlord to prove the absence of a sufficient distress ; both remedies may subsist together, and the landlord be left to elect between them.^ § 302. The clause of re-entry for non-payment of rent operates only as a security for rent ; for, at any time before judgment is entered in the cause, the tenant may either tender to the landlord, or bring into the court where the suit shall be pending, all the rent in arrear at the time of such payment, and all costs and charges incurred by the landlord ; and, in such case, all further proceedings in the cause shall cease. And even in case the land- lord recovers possession of the premises, the tenant may, at any time within six months after judgment and execution thereon, make such payment or tender to the landlord, and become thereby entitled to a restoration of the premises, according to the terms of the original lease. If the landlord, during the six months, shall have been in possession of the premises, the com-t may direct that 1 Laws of 1846, c. 369. The constitu- entry is not taken away by this statute, tionality of this law was sustained in Van an entry pursuant to its provision does Rensselaer v. Snyder, 3 Kern. K. ^a9. not require the formalities, as to demand, 2 Williams v. Potter, 2 Barb. K. 816. of a common-law entry. Van Rensselaer Though the common-law mode of re- v. Snyder, supra. SEC. II.J OP CONDITIONS. 213 SO much and no more as he shall have made of the premises, dur- ing his possession thereof, or as he might, without wilful neglect, have made of the same, be deducted from the amount of rent in arrear, with the cost of the ejectment ; and the tenant will be re- quired to pay only the balance before he shall be restored to the premises.^ § 303. A mortgagee of such lease, who is not in possession, who shall within the said six months pay the rent in arrear, with costs, and perform the agreements which ought to be performed by the first lessee, will not be affected by such recovery in ejectment. And a lessee, or any person claiming any interest in such lease, may also within that time file a bill in equity for relief; and, if such relief be granted, he will be let in upon the terms of the original demise.^ But in order to relieve the landlord from the inconvenience of con- tinuing always liable to an uncertainty of possession, from its re- maining in the power of the tenant to offer him a compensation at any time, in order to found an application for relief in equity, the next section of the statute bars the tenant from claiming relief after six months shall have elapsed from such judgment and execu- tion. When a landlord enters for a condition broken, he avoids all charges and encumbrances put upon the land by the tenant after the condition made ; for he is then seized as of his first estate, and must have it in the same plight it was when he parted with it.^ 1 2 R. S. 505, § 31-33. 2 lb. § 31-39 ; Doe dem. 'Whitfield v. Roe, 3 Taimt. K. 402. s Shep. Touch. 121. 214 LAW OF LANDLOKD AND TENANT. [chap. vni. CHAPTEE VIII. COVENANTS ON THE PART OF THE LESSOR. SECTION I. THE COVENANT FOR QUIET ENJOYMENT. § 304. The principal covenant on the part of a landlord is, that his tenant sliall have the quiet enjoyment and possession of the prem- ises during the continuance of the term. The law supposes that when a man makes a lease, he has a good title to the land, and, consequently, power to lease it ; and there is, therefore, an under- taking implied on the part of every lessor as a condition of his re- ceiving rent, that the lessee shall have the undisturbed possession of the demised premises during the term.^ But although this cove- nant is always implied on the part of a lessor,^ it is still usual to insert, among the other provisions of the lease, an express covenant, 1 Deering v, Earrington, 1 Mod. 113 ; Hatchet v. Glover, 10 Mod. 142; Holder V. Taylor, Hob. 12 ; Ludwell v. Newman, 6 Term E. 458 ; Baugher v. Wilkins, 16 Md. R. 35 ; and see Burwell v. Jackson, 9 N. Y. R. 585. Upon the words grant or demise, a lessee may, at common law, maintain an action of covenant against the lessor, for not having sufficient power to demise for the whole term ; so upon the word assign, in an assignment of a lease, for it is as general a word of cove- nant as demise. Grannis v. Clark, 8 Cow. R. 86 ; Wells v. Mason, 4 Scam. (111.), R. 85. The word " demise " imports a cove- nant for quiet enjoyment by the lessee. Eotts V. Huntley, 7 Wend. R. 210 ; Adams V. Gibney, 6 Bingh. 656. It also implies a covenant for title. Line v. Stephenson, 5 B. N. C. 183 ; 2 Cliit. 646. But such implied covenant ceases with the estate of the lessor. Adams jj. Gibney, supra; 3 C. B. 194. 2 Per Parke, B., in 12 Mees. & Wels. 85, on the part of a lessor. Want of title may amount to a fraudulent represen- tation, and when accompanied with dam- age will constitute a good cause of action, irrespective of this covenant. Whitney V. Allaire, 4 Denio, R. 554; s. c. 1 N. Y. R. 305. In this case, the defendant was induced to hire a wharf from the plaintiff by fraudulent 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 de- mise was not of the wharf, but of plain- tiffs right to the wharf, made no differ- ence. The question in such cases is, not what passed by the conveyance, but what would have passed, had the representa- tions been true. SEC. I.j COVENANT FOR QUIET ENJOYMENT. 215 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.^ § 305. This covenant, whether expressed or implied, only means that the tenant shall not be evicted, by a title paramount to that of the landlord, and implies no warranty against the aets of strangers. All that it reqviires is, that the lessor shall have such a title at the time as shall enable him to give a good unencumbered lease for the term demised.^ B\it any interference with the possession of the lessee, short of a mere trespass, by the lessor himself, 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 con- tained 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 all persons claiming through himself, or those from whom he claims title. But if the tenant is ousted by one who has no title, in the language of the law, by a stranger, it is only a trespass, and the law leaves him to his remedy against the wrongdoer, as it arises from no faiilt of the landlord.^ § 306. But the covenant extends to possession only, and not to title, and is broken only by an entry, and expulsion, or by an actual disturbance of the possession.® It has been held, however, to extend to the capacity of the covenantor to grant the estate ; and, there- fore, where upon a grant by a man and his wife, the husband 1 The Supreme Court of New York, none will be implied. Carter v. Burr, 39 in the case of Kinney v. Watts, 14 Wend. Barb. R. 59. E. 381, held that, under the statutes of ^ Gardner v. Keteltas, 3 Hill, E. 330. that State, no covenant for quiet enjoy- " The Mayor, &c., of New York v. ment could be implied in a lease, or other Mabie, 3 Kern. E. 151. A covenant of conveyance of terms for years, where the seizin which extends to the whole of the term exceeded three years ; but the Court , premises granted, includes every thing of Appeals overruled this case, in The which is parcel of the realty, and which Mayor, &c., of New York v. Mabie, 3 would pass by the deed if it belonged to Kern. E. 151, and held that such an in- the grantor ; and, in such case, if a fence strument is not a conveyance of real on the premises does not belong to him, estate, within the meaning of the statute the covenant is broken. Mott v. Palmer, (1 E. S. 738, § 140) forbidding the impli- 1 Comst. E. 564. cation of covenants in deeds. And see * Gardner v. Keteltas, supra; Howell Vernam v. Smith, 15 N. Y. E. 332. But v. Eichards, 11 East, 642. a lease in perpetuity, or in fee reserving « Iggulden v. May, 9 Ves. 380; Dud- rent, is a conveyance of real estate, with- ley v. PolUatt, 3 Term E. 584; Andrew's in the provisions of the statute in regard Case, Cro. Eliz. 214 ; Greenby v. Wil- to the Implication of covenants, and if it cocks, 2 Johns. E. 1 ; ElUs v. Welch, 6 contains no covenant for quiet enjoyment, Mass. E. 246. « Whitbeck v. Cook, 15 I. E. 483. 216 • LAW OP LANDLORD AND TENANT. [CHAP. VIII. covenanted that they had good right to convey the lands, and the wife was under age at the time, it was held to amount to a breach of the covenant.^ So where the breach assigned was, that the plaintiff was evicted in consequence of a judgment in ejectment, by one Yates, having lawful title to the premises ; it was held a good objection on demurrer, that it did not appear that Yates's title commenced by any act of the defendant's, 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 assign- ment.^ The intendment, that the title of the party evicting was derived from the plaintiff, may be precluded by averring 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 evict- ing entered by virtue of a title theretofore made by, from, and under the defendant.* § 307. A covenant for qixiet 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 con- sent," was adjudged to extend to an arrear 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 his heirs, and all others claiming under him ; but as to the persons who are con- strued to come within the meaning of the phrase, all persons claiin- ing under him, it has been decided, that a person taking under an execution of a power of appointment is within 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 1 Nash V. Ashton, Sir T. Jones, 195; Keith, 4 "Wend. 502; Lowe v. Brace, 11 Sued. Law of Vend. 415. Paige, R. 566 ; Mayor of N. Y. v. Mabie, 5 Noble V. King, 1 H. Bl. 34. The 3 Kern. R. 151. words demise and grant in a lease for * Buckley v. Williams, 8 Lev. 325. years imply a covenant of power to lease, * Hodgson v. India Company, 6 Term and an action lies upon it, though the les- R. 278. see never entered if he was prevented 6 Howes v. Brushfield, 8 East, R. 491. from entering by a person having a title * Hurd v. Fletcher, 1 Doug. 43 ; Evans existing at the date of the lease. Co. Lit. v. Vaughan, 4 B. & C. 261 ; 6 Dow. & Ry. 384; 4 Co. 80; Cro. Eliz. 674; Barney v. 849. SEC. I.J COVENANT FOE QUIET ENJOYMENT. 217 the assignees of the reyersion ; and may be made available by the assignees of the term.^ § 308. The landlord is, in no event, tinder an obligation to defend the tenant, nor will he be answerable to him under this covenant, unless he has been actually evicted by some person claiming the premises under a legal title, because the law itself defends every one against wrong.^ The covenant goes to the possession, and not to the title, and is broken only by an entry and expulsion, or by some actual disturbance in the possession.^ 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, also, must appear to have taken place before suit brought ; and if the covenantee never had posses- sion, or if he had possession and retains it still, it is impossible there could have been an eviction. But if the land is wholly unoc- cupied, the covenantee acquires constructive possession the moment the deed is executed, and is in such a condition that he may be evicted ; and if the rightful owner under these circumstances takes possession, it amounts to an eviction.^ § 309. The mere act of forbidding a tenant to pay rent to the plaintiff, unaccompanied by any other disturbance, will not amount to a breach.^ Nor, under this covenant, is the landlord bound to rebuild a house in case of its destruction by fire ; nor does such an event amount to an eviction, unless the landlord has expressly agreed to rebuild or keep the premises in repair.'' But the act of molestation, whether committed by the landlord himself, or by a servant at his command, will alike occasion a breach of the cove- 1 Campbell o. Lewis, 3 B. & A. 372 ; 3 Hays v. Bickerstaff, Vaugh. 118 ; Jenritt Moore, 35-51 ; 8 Taunt. 715. The core- v. Ware, 3 Price, 575 ; Hob. 34. naut of seizin is broken, if at all, the in- * Waldron v. McCarty, 3 Johns. R. stant it is made, and becomes a mere 471 ; Kortz v. Carpenter, 5 ib. 120 ; "Webb chose in action ; and, if there is no land v. Alexander, 7 Wend. 281 ; Coble v. whereof the grantor was seized, it cannot Welborn, 2 Dev. 388 ; 3 ib. 200. be said to run with the land, so that an * Greenvault v. Davis, 4 Hill {IS. T.), assignee of the covenant can sue. Green- R. 643 ; Cowan v. Silliman, 4 Dev. 46 ; byw. Kellogg, 2Johns. R. 1; and see Withy Hamilton v. Cutts, 4 Mass. 349; Booth v. V. Mumford, 5 Cow. R. 137 ; but see Mar- Starr, 5 Day, 282. tin V. Baker, 5 Blackf. R. 233, contra. ^ St. John v. Palmer, 5 HiU (3Sr. Y.), 2 Hammond v. Dod, Cro. Car. 5 Nokes' Case, 4 Co. 80, b; 1 Lev. 83 Lloyd V. Tompkins, 1 Term R. 671 19 E. 599. 6 Whltchott V. Nine, 1 Br. & Gold. 81. ' Brown b. Quilter, Ambler, 621; 2 Eden, 219. 218 LAW OP LANDLORD AND TENANT. [chap. VIII. nant.i This covenant is intended to insure to the lessee a legal right to enter and enjoy the premises, and if he is prevented from entering by a person already in, imder a paramount title, an action lies.^ In such case, no ouster or expulsion is necessary, on which to predicate a suit, as the lessee is not bound to enter, and commit a trespass ; ^ it must, however, be shown expressly, that he was kept out by a title existing in a third person at or before the execution of the lease.* § 310. The eviction must also be by title both lawful and para- mount ; accordingly, where the eviction was by a subordinate title, which the grantee had precluded himself from contesting by his own acts and declarations, and the recovery against him went clearly on that ground, 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 such third person, before and at the date of the covenant, had lawful title, and, by virtue thereof, entered and ousted the plaintiff.^ To render the eviction of a tenant a valid defence against the landlord's claim for rent, it must take place before the rent fall^ due ; and the rule is the same, although the rent is payable in advance, and the eviction occurs before the expiration of the period in respect to which the rent claimed accrues.' 1 Seamen v. Browning, 1 Leon. E. 157. 2 Ludwell V. Newman, 6 Term E. 458; St. John v. Palmer, supra; 2 Aik. 329 ; 4 Mass. 349. 8 1 Saund. E. 322; Gramiis v. Clark, 8 Cow. E. 36. * Beddoe's Ex'ors. v. "Wadsworth, 21 Wend. E. 120. In the case of Giles v. Dugro, 1 Duer, E. 331, the defendant in the assignment of a lease to the plain- tiff covenanted that the assigned premi- ses were free and clear of all encumbran- ces whatsoever; hut it appeared that, prior to the assignment, he had sold and assigned to one Sloan, the privilege 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 encumbrance, and therefore, a breach of the defendant's cov- enant. And also, that Sloan having actu- ally used the wall as the party-wall of a building he had erected, it amounted to an eviction of the plaintiflT, and entitled him to more than mere nominal damages. ^ Kelly V. Dutch Church of Schenec- tady, 2 Hill (N. Y.), E. 105. '' Webb V. Alexander, 7 Wend. E. 281 ; Lansing v. Van Alstyne, 2 Wend. E. 565; Phelps v. Sawyer, 1 Aik. (Vt.), E. 150 ; Maverick v. Lewis, 3 McCord, E. 211. ' Giles V. Comstock, 4 Comst. E. 270. In this case, it was held, that a landlord was entitled to recover a quarter's rent payable in adtance on the first day of February; although before the quarter expired, a mortgage prior to the lease was foreclosed, the premises sold, and the tenant had attorned to, and paid the same rent to the purchaser. In note 2d, to Salmon v. Smith, 1 Saund. R. 204, it is said, that, to occasion 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 be- came due. So in Paige v. Pain, Styles, 432, and Chancellor Kent aflBlrms the same doctrine, 3 Gaines. 37. SEC. I.] COVENANT FOR QUIET ENJOYMENT. 219 § 311. 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 defendant to execute a deed and deliver possession of land, is held to be such ; 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 his action.^ And although the mere existence of a better title is no breach of this covenant, yet, if it be accompanied with possession under it, com- menced before the deed containing such 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 required to be in writing.^ § 312. If the party holding is a wrongdoer, the remedy of the lessee is as perfect and effectual to dispossess him after, as that of the lessor was before the execution of the lease, either by ejectment or summary proceedings under the statute. Therefore, where the lessee is prevented from entering into possession by a former tenant, whose tei'm has expired, his remedy must be against the latter, and not against the lessor.^ But the covenant may extend to all inter- ruptions, legal or illegal, 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, fa. In this case, there, was a pretence of right of common set up to two closes comprehended in the lease ; and it was considered to be the plain intent of the parties, that all disturbance 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, in assigning the breach, it must appear that he who entered did not claim under the lessee himself.^ § 313. A mere personal wrong will not occasion a breach of this covenant : the molestation must be such as concerns the estate, and amounts to a prohibition of enjoyment ; for if one enters and beats or assaults the lessee, the lessor cannot be charged on his covenant 1 Kerr v. Shaw, 13 Johns. R. 236; « Gardner v. Keteltas, 3 ffiU (N. Y.), Cortz V. Carpenter, 5 Johns. R. 120. R. 330. 2 Martin v. Martin, 1 Dev. R. 413. ' Southgate v. Chaplin, Com. 230 ; and 3 Grist V. Hodges, 3 Dev. R. 200. in 10 Mod. 383 ; Lucy v. Levington, 1 « Jacltson V. Marsh, 5 Wend. R. 44. Vent. 175 ; Winch. 25. 5 Miner v. Clark, 15 Wend. R. 425, » Norman v. Poster, 1 Mod. R. 101. Bronson, J., dissenting. 220 LAW OF LANDLORD AND TENANT. [CHAP. TIIL for such a disturbance .^ But an entry by the covenantor himself, however tortiously and without title, will amount to a breach.^ Be- sides, if the lessee is tortiously evicted or disturbed, he has his rem- edy at law ; and it is only when he is legally evicted, that he has his action on this covenant.^ And if the covenant indemnifies him against a particular person by name, the covenantor is bound to defend him against the entry of that person, whether by title or not, and whether such entry be lawful or not.^ So where one assigned his term for years, and covenanted that the original lease was good, and not made void or encumbered, a previous lease granted by the assignor was held to amount to a breach, although the plaintiff before the assign- ment, 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 the mere existence of a previous mortgage, under which the lessee is liable to be dispossessed, does not consti- tute an eviction. And in an action for a breach of this covenant, the declaration set forth the deed, covenant, &c., and averred a previous mortgage and subsequent sale of the premises under it, by virtue of a decree in chancery, and that the plaintiff was obliged to purchase the premises, in order to prevent his being deprived and ousted of the same ; on demurrer it was held, that there was no eviction within the spirit and meaning of the covenant, for that the covenant could only be broken by entry and eviction.^ § 314. An averment of eviction, under an elder title, is not always necessary to sustain this action ; for if the grantee be unable to obtain possession, in consequence of an existing possession or seizin by a person claiming and holding under an elder title, it is equivalent to an eviction.' But in an action for breach of the covenant for quiet enjoyment, the breach assigned was, that the premises were and had been held time out of mind adversely ; on 1 Ellis V. "Welch, 6 Mass. E. 246 ; " Dudley v. FoUiatt, 3 Term E. 584 ; Penn v. Glover, Cro. Eliz. 421 ; Sedden v. 2 Saund. E. 178, a, 181, a ; Noble v. King, Senate, 13 East, 72. 1 H. Bl. E. 84. 2 Sedwick M. Hollenback, 7 Johns. E. * Foster v. Mapes, Cro. Eliz. 212; 376 ; Cro. Eliz. 644 ; Bennet v. Bittle, 4 Haynes v. Biekerstaff, Vaugh. 118 ; Fowle Eawle, E. 839. In Ogilvie v. Hull, 5 v. Welsh, 1 B. & C. 29. Hill, E. 54, Chief Justice Nelson says, — ^ Ludwell v. Newman, 6 Term E. 458 ; No principle is better settled, or more uni- Levell v. Withington, Lutw. 97. formly adhered to, than that there must ^ Waldron v. McCarty, 3 Johns. E. be an entry, and expulsion of the tenant 464 ; Whitbeck v. Cook, 7 ib. 376 ; 8 ib. by tlie landlord, or some deliberate dis- 198; 15 ib. 483. turbanee of the possession, depriving the ' Duvall v. Craig, 2 Wheat. E. 45 ; tenant of the beneficial enjoyment of the Andrews v. Paradise, 8 Mod. E. 318 ; demised premises, to operate a suspension Grannis v. Clark, supra. or extinguishment of rent. SEC. I.] COVENANT FOR QUIET ENJOYMENT. 221 demurrer it was holden bad, for the want of an averment of eviction or distm-bance.^ In another case, the breach assigned 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 lawful right and title, entered and ejected plaintiff. It was objected, on demurrer, that the plaintiff, in alleging the eviction, ought to have shown the title of I. B., or at least it should have been averred that I. B. had such a title as was inconsistent with the plaintiff's title to possess those premises ; that though it was alleged that I. B. had lawful right and title to the premises, he might only have had a title to recover in a real action, and not a right of entry, and that the mischief to be 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.^ § 315. 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 prem- ises, 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 land- lord for such damages as he has sustained from the partial eviction.* Therefore, if a man lease a house with estovers, and then destroy all the wood, the lessee may have an action of covenant.^ So where a landlord let certain premises, together 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 the same 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 land- lord 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 1 Kortz V. Carpenter, 5 J. R. 120. * Dudley v. ToUicot, 3 T. E. 584 ; 2 Foster v. Pierson, 4 Term R. 617. Noble v. King, 1 H. B. 34. " Etheridge v. Osborne, 12 Wend. E. ^ Pompet v. Ricroft, 1 Saund. R. 321 ; 529 ; Hay v. Cumberland, 25 Barb. R. s. c. 1 Vent. 26, 44. 594. 19* 222 LAW OP LANDLORD AND TENANT. [CHAP. VIII. this covenant.! And if a man should lease premises with a water- course 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 passing to it, this is 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 a lease of a 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 man- sion-house on part of the garden.* § 316. 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 arising in the city of New York, the facts were, that the landlord let out a portion of the premises which he himself occupied, and was in the habit of in- troducing into his part of the house lewd women, for the purpose of prostitution, who made a great deal of indecent noise and dis- turbance, so as to 'disturb the rest of persons sleeping in other parts of the house, occupied by the tenant ; that such practices were matters of conversation and reproach in the neighborhood, and were calculated to draw odium and infamy upon the house as a place of ill-fame, so that it was no longer respectable for moral or decent persons to dwell or enter therein ; and that the tenant was compelled, by the repetition of such practices, to leave the prem- ises, and did for that cause leave them ; the court held that, under these circumstances, the tenant was not responsible for rent, for that the landlord's immoral conduct in this case amounted to an eviction.^ But if a tenant, by a lease under seal, 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 1 Rhodes v. BuUard, 7 East, 116. In ^ Salman v. Bradshaw, Cro. Jac. 304 ; an action for damages in obstructing the Ludwell o. Newman, supra ; Andrews v. lights of the plaintiff's tenement, brought Paradise, 8 Mod. 318 ; Morris u. Edding- by a tenant for a year against his land- ton, 3 Taunt. 24. lord during the term, he can only recover ' Andrews v: Paradise, supra. damages for the time which had elapsed * Kidder v. West, 8 Lev. 167. when the suit was commenced, and not ^ Dyett v. Pendleton, 8 Cow. E. 727. for the whole term. Blunt v. McCormick, 3 Den. li. 283. % SEC. I.J COYENANT FOE QUIET ENJOYMENT. 223 must show that his landlord created the nuisance by leasing such apartments for that purpose, or that it existed by his connivance and consent.! § 317. The general rule of damages in an action for a breach of the covenant for quiet enjoyment upon an eviction is, that the purchaser recovers the consideration-money paid and interest, and not the enhanced value of the premises, whether such value has been created by the expenditure of money in improvements thereon, or by any other more general cause.^ But as a lessee pays no pur- chase-money, he can recover none back upon eviction ; and, in respect to any improvements he may have made upon the premises, and the money expended thereon, he stands upon the same general footing with a purchaser. The rents reserved in a lease, where no other consideration is paid, are regarded as a just equivalent for the use of the demised premises. In case of. eviction the rent ceases, and the lessee is relieved from a burden which must be deemed equal to the benefit which he would have derived from the continued enjoyment of the property. A lessee may, however, recover against his lessor the costs incurred by the former in defending the title, together with the rents which he may have paid to the lessor since the eviction, or so much thereof as he may be answerable to the true owner for, during a period not exceeding six years before suit brought.^ Where a lessee was turned out of possession of the demised premises by the city authorities, who demolished the building, and the tenant had paid a month's rent in advance, but there was no covenant in the lease, and no charge of fraud or misconduct on the part of the landlord, the tenant was allowed to recover back so much of the advance rent, with interest, 1 Gilhooley v. "Washington, 4 Comst. be estimated, not by the amount of rent, R. 217. In this case, Bronson, C. J., or of the lessee's profits, but according to says : " In the equitable action, for use the real value of the lease. Dexter v. and occupation, the English courts hold Manley, 4 Cush. R. 15. In an action by that the tenant is not answerable, unless the lessor for rent, a lessee may recoup he has had the beneficial enjoyment of damages for a breach of a covenant for the property, and they have gone a great quiet enjoyment. Mayor of N. Y. v. way in protecting the tenant against dis- Mabie, 13 N. Y. R. 151 ; 22 Wend. R. turbances of all kinds ; but the principle 155 ; 3 Hill, R. 171. of these cases has never been appUed to ^ Kelly v. Dutch Church of Schenec- an action of covenant for the non-pay- tady, 2 Hill (N. Y.), R. 105. Damages ment of rent, which does not depend on for an expulsion may be enhanced by the act of occupation or enjoyment." evidence of the improvements made upon 2 Kinney v. "Watts, 14 Wend. R. 38 ; 4 the premises by the tenant previous to his Dal. R. 441; 2 Mass. R. 482-453; ih. expulsion, rendering them more valuable 523; 2 Wheat. R. 62, note e. The and productive. Ricketts v. Lostetter, damages in an action for obstructing the 19 Indiana R. 125. use of the premises by the lessor are to 224 LAW OP LANDLORD AND TENANT. [CHAP. VIII. as was proportioned to the part of the month during which the plaintiff was deprived of tlie use and occupation of the premises ; not on the ground of damages for an eviction, but upon the prin- ciple, that, to this extent, there had been a failure of consideration, the lease having been given and taken in the mutual expectation that the plaintiff would not be disturbed in the enjoyment of the premises, by any action of the corporation during the term. And it was further held in the same case, that, if no rent had been paid in advance, the lessee could have recovered nothing, his liability to pay rent ceasmg from the time of the eviction.^ SECTION II. THE COVENANT AGAINST ENCUMBRANCES. § 318. Another covenant on the part of the landlord, important to the tenant, is for indemnity against encumbrances, or that the tenant shall enjoy the premises free from encumbrances made, or to be made, by the landlord, his heirs, or assigns. Without this cove- nant a tenant may be turned out of possession, in the middle of an advantageous term, by some prior encumbrance of the landlord, unknown to the tenant, and have no redress for the injury done to him. This obhgation, however, only arises in favor of a tenant for years, for if the estate is charged with an encumbrance, a tenant for life is entitled to no such indemnity from the remainder-man ; for he is bound in equity to keep down the interest, taxes, and other annual charges, out of the profits of the estate ; though he is 1 Noyes v. Anderson, 1 Duer, E. 343. usual covenant for the payment of rent Upon an executory contract to give a and provided for the appraisement of the lease, and a failure or refusal to give one, improvements erected by the lessee and the rule of damages is the same, if the payment of their value by the lessor at inability or refusal is without any fault or the expiration of the term, and the lessor fraud on the part of the party promising re-entered for the non-payment of rent it to execute it. But where the refusal to was held that the lessee could not mam- give a lease results from the fraudulent tain an action, upon being evicted for conduct of the defendant, consequent the value of his improvements Law- special damages, on proper allegations rence v. Knight, II Cal. R. 298 • Kutter v being embodied m the complaint, may be Smith, 2 Wallace U. S. E 491 If he recovered. Per Bosworth, J. For which has any remedy at aU, he must wait tiU the learned judge cites, Baldwin v. Munn, the expiration of the time fixed by his 2 Wend. E. 399; Peters v. McKeou, 4 contract. He cannot, by his own fault S'^'^o", ^^li,.-'^®'"^'^ ,"• ^'■'^'igli' 11 I'enn. change the terms of the contract in his K. 12,1. Where a lease contained the own favor. Lawrence v. Knight supra SEC. II.] THE COVENANT AGAINST ENCUMBRANCES. 225 not chargeable with the encumbrance itself nor bound to extinguish it.^ And if he neglects to discharge the taxes, or other ordinary- charges upon the property, a temporary, receiver may be appointed to lease out the premises, until he collects rent enough to pay off such charges.^ But he contributes only during the time he enjoys the estate.^ If, however, the encumbrancer neglects for years to collect his interest from the tenant for life, he may collect all the arrears from the remainder-man ; * but the estate of the tenant for life would be bound to indemnify the remainder-man for the arrear- age of interest accrued in his lifetime; since the tenant for life must keep down the annual 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.^ § 319. In order to justify legal proceedings on this covenant, it is not necessary that the tenant be actually interrupted or 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 encumbrance, which may defeat the estate, will constitute a technical breach of the covenant, although the encumbrance is suffered to lie dormant ; yet nothing more than nominal damages can be recovered before an actual injury has been sustained.^ To an action on a covenant (in an 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 is 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 1 Swaine v. Ferine, 5 Johns. Ch. R. 2 Bradf. E. 311. The general rule in 482; Saville w. Saville, 2 Atk. R. 468; equity, as stated by Kent, is that a tenant 1 Ves. Jr. 233 ; 4 Kent, Com. 74. Tenant for life must keep down the interest of for life is bound to pay the annual taxes any mortgage upon the premises, but is from the income of the property. Cairns not chargeable with the principal. Mose- V. Chabert, 3 Edw. R. 312; and he is also ly v. Marshall, 27 Barb. R. 42. chargeable with an equitable apportion- ^ Cairns v. Chabert, supra. ment of assessments for local improve- ^ Casborne v. Scarpe, 1 Atk. R. 696; ments. Fleet v. Borland, 11 How. Pr. R. Penhym v. Hughes, 5 Ves. R. 99 ; Tracy 489. A water tax specifically charged for u. Hereford, 2 Bro. 128. a particular use, exclusively confined to * Roe y. Pogson, 1 Madd. R. 682. the apartments of the tenant for life, ^ 4 Kent, Com. 74 ; Rowel u. Walley, should be borne wholly by such party. 1 Rep. in Ch. 219. Graham v. Dunigan, 2 Bosw. R. 516. ^ Jenkins v. Hopkins, 8 Pick. R. 346 ; As to a municipal assessment charged Chappie v. Bull, 17 Mass. R. 220; The upon the land, it was held that the life People v. Nelson, 13 Johns. R. 340 ; Jack- tenant should be charged with the interest son v. Sternbergh, 20 Johns. R. 49 ; Bar- on the assessment, and the principal upon rett v. Porter, 14 Mass. R. 143. the remainder-man. Stillwell v. Doughty, ' Griffith v. Harrison, 4 Mod. 249. 226 LAW OP LANDLORD AND TENANT. [CHAP. VIII. for re-entry on non-payment of rent, underlets and covenants for quiet enjoyment without the interruption of himself or of any other occasioned by his procurement or consent, his default in paying this rent, by means whereof the under-lessee is evicted, is clearly a breach.^ § 320. A covenant against encumbrances, if broken by a mort- gage previously given by the grantor, is broken at the time the deed is delivered,^ and the party need not be actually evicted.^ An exception immediately following such a covenant, of a certain mort- gage to a specified amount, operates as a qualification of the cove- nant, which is broken if the mortgage exceeds that amount.* 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. 5 And evidence is not admissible to show that the grantee knew of the existence of the easement.^ It has been held, also, that a previous sale of part of the land, by articles of agreement, is an encumbrance on the legal estate.'^ So an inchoate right of dower is an existing encumbrance, 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.^ § 321. The words permitting and suffering do not bear the same meaning as knowing of and leing privy to ; the meaning of the former is, that the party shall not concur in any act over which he has a control, and such a covenant extends only to such permissive acts of the lessor, as had through that permission an operative effect in charging the estate.^" We may observe also, that, if a cov- enant against encumbrances has been broken before an assignment by the lessee, which have not been removed, the covenant will pass to the assignee, so as to entitle him to any damages he may sustain 1 Stevenson v. Powell, 1 Bulst. 128. ^ Harlow v. Thomas, 15 Pick. 68 ; 2 Bean v. Mayo, 5 Greenl. E. 94 ; In- Mitchell v. Waa-ner, '5 Conn. 497. gersoU V. Jackson, 9 Mass. R. 495 ; Stew- " Kellogg v. IngersoU, 2 Mass. 97 ; art V. Drake, 4 Halst. R. 141 ; Funk v. Hubbard v. Norton, 10 Conn. 431 ; Pritch- Voneida, 11 S. & R. 109; Davis v. Ly- ard v. Atkinson, 3 N. Hamp. 335. This man, 6 Conn. R. 249; Stannard v. El- seems to have been doubted in a New- dridge, 19 Johns. E. 254 ; Wyman v. York case, Whitbeck v. Cook, 15 Jolms. Ballard, 12 Mass. R. 304 ; HaU v. Dean, R. 483. 13 Johns. 105. 7 Seitzinger v. Weaver, 1 Rawle, R. 8 Chapman v. Holmes, 5 Halst. R. 28 ; 382. Garrison v. Sandford, 7 ih. 260; Lott v. « Porter v. Noyes, 2 Greenl. 22. Tliomas, 1 Penn. E. 407 ; Tufts v. Adams, ' Partridge v. Townley, 3 B. & P. 172. 8 Pick. R. 547. lo Hobsou v. Middleton, 6 Bam. & ^ Potter V. Taylor, 6 Verm. R. 676. Cress. 295. SEC. III.] FOR FURTHER ASSURANCE. 227 after the assignment ; for this is not a mere assignment of a chose in action, but there is a continuing breach, and the ground of damages has been enlarged since that time.^ § 322. The rule of damages, upon the breach of a coTenant against encumbrances, is said to be the amount which the plaintiff has lawfully paid, to discharge the encumbrance ; but if he has not paid off the encumbrance, he is still entitled to nominal damages, because an outstanding encumbrance is a technical breach of the covenant, although it does him no harm until he is evicted under it, or until he pays it, which he may do without waiting to be evicted.2_ And after he has been evicted, the costs 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.^ SECTION III. FOR FURTHER ASSURANCE. § 323. A third covenant, on the part of the landlord, sometimes inserted in a lease, is the covenant for further assurance, by which the lessor contracts that he will, at any time, perform and execute such further reasonable acts, writings, and conveyances of 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 par- ties have contracted for. This covenant is not usually introduced, because the covenant for quiet enjoyment necessarily implies that the lease is perfect, as a good and valid demise ; and granting an imperfect, and therefore a bad lease, would be a breach of the latter covenant. It is always, however, inserted in conveyances of free- hold property, and sometimes in assignments of leasehold premises. It is a covenani; running with the land, of which an under-tenant 1 Sprague v. Baker, 17 Mass. R. 586. tion, and the fact that only part of it has ^ Dimick v. Lockwood, 10 Wend. R. been paid, may be shown by parol, al- 142; Delarergne v. Norrls, 7 Johns. E. though the deed expresses a different 358 ; 16 ib. 254 ; Prescott v. Truman, 4 consideration, and acknowledges that the Mass. R. 627 ; Hall v. Dean, 13 Johns. R. whole of it has been paid ; and there is no 105; Garfield v. Williams, 2 Verm. R. occasion, in such a case, to resort to a 327; Garrison v. Sandford, 7 Halst. R. court of equity for relief Bingham v. 261. In an action on the covenant of Weiderwax, 1 Comst. R. 509. seizin, for the purpose of acertaining the ^ Waldo v. Long, 7 I. R. 173. measure of damages, the true considera- 228 LAW OF LANDLORD AND TENANT. [CHAP. VHI. may avail himself, as well as the original lessee ; ^ and may be im- portant 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 perfornaance of all acts for supplying defects in the former, as to remove all objections to the sufficiency and security of the latter. § 324. 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 acqiiired it by purchase, for a valuable consideration.^ And the lessee may reqiiire the removal of a judgment, or other encumbrance ; ^ but a mortgagor is not bound to release his equity of redemption.* Where a party cove- nanted that he had not done, nor permitted, nor suffered to be done, any act whereby the estate was encumbered, it was held that his assent to an act, which he coiild not have prevented, was no breach of this covenant.^ And where a defendant, by an agreement of present demise, let premises to the plaintiff, which the parties in possession refused to quit, the defendant was held bound to put the plaintiff in possession, as a contract to do so was implied ; 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 eject- ment against the wrongful occupant.^ A lease and entry by the lessee is not a disseisin in fact, unless the entry be forcible, or with a manifest intention to disseize. 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. The term reasonable act, generally made use of in this covenant, means such an act as the law requires ; but if it be un- necessary, it is not a reasonable act, nor one which would be required by law. Therefore, a refusal to do something, which, if executed, would be useless and nugatory, will not constitute a breach of this covenant.^ The covenant, to make such assurance as the lessee's counsel shall advise, requires that the counsel shall 1 Middlemore v. Goodale, Cro. Car. 503. « Coe v. Clay, 3 Moore & Pa. 57 ; 5 2 Middlebury College v. Cheney, 1 Bing. E. 440. Verm. R. 836 ; Taylor v. Debar, 1 Ch. ' Jerritt v. Weare, 3 Price, 575. A Cas. 274; 2 ib. 212; Seabourne v. Powell, wrongful possession does not divest the 2 Vern. 11 ; 2 P. Wms. 630. title of the person against whom posses- King V. Jones, 5 Taunt. R. 427. sion is held adversely. Doe v. Hull, 2 D. * Atkins V. Uton, 1 Ld. Ray. 36. & R. 38. 6 Hobson V. Middleton, 9 D. & R. 249 ; 8 -wrarn v. Bickford, 9 Price, R. 43. 6 B. & C. 296. SEC. IV. j THE COVENANT TO REPAIR. 229 give his advice, and that the covenantor shall be notified thereof. It also requires that the covenantee procure the instrument to be drawn and tendered to the covenantor for execution.^ § 326. According to the English cases, if a covenantor can read the deed, he is bound to execute and deliver it immediately upon its being tendered to him for execution j 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, and whether they agree with 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 procure some one to explain it to him.^ The same rigidity, however, does not appear to exist in our law, for in an action upon a covenant for further assurance, "as by the plaintiff or his counsel should be reasonably devised, advised, or required," the breach assigned was, that the plaintiff had requested the defend- ant to make a lawful and reasonable assurance to the plaintiff, of the right of dower of defendant's wife, yet the said defendant had not made such assurance, &c. ; on demurrer, the breach was holden bad ; for the plaintiff, or his counsel, were to devise the further assurance, and, after having done so, the plaintiff was bound to give notice thereof to the defendant, allowing him a reasonable time to consider of it ; and such facts ought to be averred.^ SECTION IV. THE COVENANT TO REPAIR. § 327. The landlord sometimes covenants to repair ; and for his own sake will generally prevent the premises from running to decay ; but unless he binds himself by an express agreement to that effect, the tenant, whether for life, for years, or at will, cannot compel him to repair. The common law has always thrown the burden of repairs, as much as possible upon the tenant. Enjoying the benefits, he should bear the inconveniences ; and it would be 1 Cro. Eliz. 9, 298; 2 Lev. 95; 1 Mod. 337, b; 1 Eol. Abr. 441; 2 Cro. Car. 104. 299. 2 Manser's Case, 2 Kep. 8, a; 3 Dy. ^ Miller v. Parsons, 9 Johns. E. 336; Switzer v. Hummel, 3 S. & R. 228. 20 230 LAW OF LANDLORD AND TENANT. [CHAP. Till. unjust that the expense of accumulated dilapidation should, at the end of the tenancy, fall upon the landlord, when a small outlay on the part of the tenant in the first instance, would have prevented any such expense becoming necessary. § 328. In conformity to this principle, it was laid down by Chief Justice Savage, that at common law " it is not in the power of a tenant to make repairs at the expense of his landlord, unless there be a special agreement between them authorizing him to do this. The tenant takes the premises for better or for worse, and cannot involve the landlord in expense for repairs without his consent."^ As in a case where there was a lease of a house, with the use of a pump standing on the lessor's premises, it was held the tenant had no remedy against the landlord for suffering the pump to be out of repair, unless he had agreed to keep it in repair.^ So where a tenant, under a covenant to repair, pulled down a party-wall (being in a ruinous condition), and rebuilt it at the joint expense of him- self and the occupant of the adjoining house, to whom he had given notice in the landlord's name, but without his authority, he could not maintain an action against his landlord for a moiety of the ex- pense of rebuilding such party-wall.^ § 329. And if the premises have become uninhabitable by fire, and the landlord, having insured them, has recovered the insurance money, the tenant cannot compel him, either at law or equity, to expend the money so recovered, in rebuilding, unless he has ex- pressly engaged to do so.* Nor will a court of equity, under such circumstances, prevent the landlord from even suing for the rent, \mtil he shall have rebuilt the premises ; ^ for the tenant — unless there is an express agreement to the contrary, or the landlord is under a covenant to repair — is obliged to continue the payment 1 Mumford v. Brown, 6 Cow. R. 475 ; and deduct the amount he has paid out of Howard v. Doolittle, 3 Duer, R. 464; the rent. Perrett w. Duprd, 3 Rob. La. R. Sherwood v. Seaman, 2 Bosw. R. 127 ; 52. Code, Art. 2664. But to recover the Post V. Vetter, 2 E. D. Smith, R. 248. cost of such repairs from the landlord, The landlord is not hound to repair, but the tenant must be prepared to show, that the tenant is. Kellenberger v. Foresman, the lessor refused or neglected to make 13 Indiana R. 475. them, although requested to do so ; that 2 Pomfret V. Ricroft, 1 Saund. R. 320 ; they were indispensable, and such as the 7 East, R. 116; Surplice v. Falmouth, 7 lessor was bound to make; and that the M. & G. 576; Gott v. Gandy, 2 E. & B. price paid was reasonable. Shall u. Banks, 845. 8 *. 168 ; Code, Art. 2663. 8 Pizey V. Rogers, 1 Ry. & Mor. 357. * Pindar v. Rutter, 1 Term. R. 312 ; In Louisiana, the landlord is bound to Carter v. Rockett, 8 I'aige, 437. keep the premises in tenantable condi- ^ Leeds v. Cheatham, 1 Simon, E. 146 ; tion ; and, if he fails to make the neces- Belfour !>. "Wesden, 1 Term R. 314 ; 18 sary repairs, the tenant may make them, Ves. R. 115. SEC. IV.] . THE COVENANT TO REPAIR. 231 of rent during the term, although the premises may become unten- antable, for want of repairs, or from any other cause, or should even be burnt down in the mean time.^ § 330. The doctrine above stated is to be taken with a qualifi- cation so far as it is applicable to the State of New York, where by a recent statute a landlord is bound to keep his premises in ten- antable condition if he intends to retain the tenant. For the latter may at any time quit and surrender any building in his occupation, which, without his fault or neglect, shall be destroyed, or be so much injured by the elements or any other cause, as to become untenantable and unfit for occupation.^ A different rule also pre- vails in Louisiana, where it is held, that a lessor is bound to keep the premises in a condition fit for the purposes for which they were leased. If he fails to make the necessary repairs during the lease, the tenant may' make them himself, and deduct the amount from the rent. The lessor is there also bound to indemnify the lessee for all damage sustained by the latter in consequence of the vices and defects of the thing leased, though the lessor knew nothing of their existence, at the time of the lease, and even where they have arisen since. But where, after the commencement of a lease, the house becomes so much injured as to be incapable of being ren- dered fit for the purposes for which it was leased, otherwise than by rebuilding it, and the lessor offers to dissolve the lease, which the lessee refuses, and continues to occupy the building ; it was held, that the lessor will not be responsible for any damage subse- quently sustained by the lessee in consequence of the condition of the building, and that the latter will not be entitled to claim any diminution of the rent for the period he continued to occupy the premises after the offer of the lessor to annul the lease.^ § 331. TYhen a landlord has expressly covenanted to repair, the obligation will be enforced ; and, if he sues for rent, the tenant may recoup any damages he has sustained by the landlord's breach of the agreement.* But no implied covenant to rebuild, or repair 1 Moffat u. Smith, 4 N. Y. R. 126. pendent agreement, a breach of which Failure of the landlord to fulfil his agree- does not discharge the lease, nor a surety ment to keep the premises in repair is no for the rent. Ellis v. McCormick, 1 Hilt, defence to an action for rent. Tibbets v. R. 313. Percy, 24 Barb. R. 39; Watts v. Coflan, ^ f,aws of New York of 1860, page 11 Johns. R. 495; Osborn v. Etheridge, 592; arid see, post, § 375. 13 "Wend. R. 339; 1 Kern. R. 216. An » Perrett u. Dupre, 3 Robinson, R. 52; agreement of the landlord, indorsed on Coleman v. Haight, 14 La. An. 564. the lease, to make certain improvements * Whitbeck v. Skinner, 7 Hill, R. 53 ; - in consideration of the letting, is an inde- Nichols v. Dusenbury, 2 N. Y. R. 283. He 232 LAW OF LANDLOKD AND TENANT. [CHAP. Till. damages on the part of the landlord, arises at common law, from the exception of casualties by fire and tempest, in the lessee's cove- nant to repair. As in a case where an action was brought for half a year's rent ; the defendant pleaded that he covenanted to repair, casualties hy fire and tempest excepted; that a violent tempest arose, and threw down a stack of chimneys belonging to the house, and damaged the house so much, that it would have become uninhabi- table, if he had not repaired it, and that he laid out X30, which he was ready to set off against the rent claimed. The court held, that the landlord was under no obligation to repair damages occasioned by fire or tempest, and that the exception was introduced into the lessee's covenant for his benefit, and to exempt him from particular repairs.^ If the landlord has expressly agreed with his lessee that he will, in case the premises shall be burned, rebuild and place them in the same condition they were in lefore the fire, he is only bound to restore the premises to the same state in which they were before he let them, and is not bound to rebuild any such additions as the tenant may have made himself. And the tenant is bound to continue the payment of rent while the premises are rebuilding, provided there is no unnecessary or unreasonable delay on"the part of the landlord to rebuild, after he had been notified of the destriic- tion of the premises.^ As this is a covenant running with the land, it is one of which an assignee of the term or an under-tenant may have the benefit ; and it is also obligatory upon a grantee of the reversion.^ may recoup only the amount the repairs to repair, and enters for that purpose, he is would have cost, and not special damages, not liable in damages, for interrupting the Dorwin v. Potter, 5 Den. R. 506. business of the lessee or otherwise in the 1 Weigal V. Waters, 6 Term E. 488. exercise of such right, unless it appears to A lessor is not liable to repair under a have been done in a wanton, unskilful, or covenant for quiet enjoyment, notwith- negligent manner. Turner v. McCarthy, standing the premises are destroyed by 4 E. D. Smith, R. 249. In an action for fire. Brown v. Quilter, Ambl. 619 ; s. c. a breach of the landlord's covenant to 2 Eden, 219. repair, the tenant cannot recover for rent 2 Loader v. Kemp, 2 Car. & Payne, lost by his under-tenants leaving the prem- 375. If the owner of a building is bound ises in consequence of their condition, to repair, he is not relieved from his Uabil- unless especially averred. Pettinger v. ity for injuries caused by defects in the Levy, 4 E. D. Smith, R. 288. building, or by the falling of snow and ice ^ Demarcst v. Willard, 8 Cow. R. 206 ; therefrom. Kirley v. Boylston Market, 14 Allen v. Culver, 3 Den. R. 284. Gray, R. 249. When the landlord is bound SEC. v.] THE COVENANT TO RENEW THE LEASE. 233 SECTION V. THE COVENANT TO RENEW THE LEASE. § 332. Another covenant, sometimes inserted in the lease, on the part of the landlord, adding much to the stability of a lessee's in- terest, and affording an inducement to permanent improvement, is, that he will renew the lease at the expiration of the term, for the same, or some other period mentioned. Under this covenant the •lessor is bound to make another lease, either to the lessee or his assignee ; and if the terms of such covenant are express and une- quivocal, the performance of it will be duly enforced by a court of equity.^ If the covenant be to renew, at the request of the lessee (without naming his executors), within the term, and the lessee die ; the executors are entitled to the renewal, if they apply within the term.^ A covenant that the lessee shall leave the refusal of the premises, at the expiration of the lease, for a specified term, is a covenant to renew the lease, at the same rent for such term. It is violated by the lessor, if he refuses to renew the lease except at an increased rent. And the acceptance by the lessee of a new lease, at the increased rent after such violation, he at the same time pro- testing against a right to exact the increased rent, and claiming to reserve his right of action, for the breach of the covenant, will not prevent him from recovering as damages for the lessor's breach of the covenant, the difference between what the tenant was to have paid and what he was compelled to pay. And the lessee in such a case is not obliged to wait until the actual termination of the lease before he makes his election to have the lease renewed ; for the 1 Rutgers v. Hunter, 6 Johns. Ch. R. some positive local custom, — of which 215 ; Pritchard v. Ovey, 1 Jac. & Walk, none such exists that the writer is aware 404 ; Rees v. Ld. Dacre, cited 9 Ves. R. of, — it is a demand that cannot he en- 332 ; 2 Br. Ch. Ca. 636 ; Iggulden v. May, forced at law ; nor have apphcations to 9 Ves. 825 ; Furnival v. Crew, 3 Atk. IJ. eguity for the purpose been attended with 83 • 7 East, R. 237 ; 2 N. R. 449. greater success. The so-called tenant-right 2 Hyde v. Skinner, 2 I'. Wms. 196 ; 1 of renewal confers no positive interest, Plowd. 286. With some corporations, as, either vested or contingent ; and is a mere for instance. Trinity Church in New naked possibihty, depending solely on the York, and even with private individuals, caprice of the lessor. A rit/ht of renewal it is usual to grant a new lease to the ten- must be the result of express compact ; ant in possession, at the end of the term ; and to secure it is the object of the cove- from which fact, many tenants claim a nant we are now discussir.g. rUjht of renewal. But, independent of 20* 234 LAW OP LANDLORD AND TENANT. [CHAP. Till. lessor is bound to renew when the lessee makes his election, and demands the renewal.^ This is also a covenant running with the land, and a purchaser of the estate will be bound by it.^ § 333. A covenant to let the premises to the lessee at the expira- tion of the term, without mentioning any price for which they are to be let ; or to renew the lease upon such terms as may be agreed on, in neither case amounts to a covenant for renewal, but is alto- gether void, for uncertainty. Nor will a general covenant for re- newal be construed to imply a perpetual renewal, unless the words are expressly to that effect ; the most a lessor is bound to give on such a covenant is, a renewal for one term only.^ Covenants for continued renewals are not favored, since they tend to create a per- ■ petuity ; but where they are definite and reasonable, the law sus- tains them. A covenant to renew a lease " imder the smne cove- nants contained in the original lease " is satisfied by a renewal of the lease for another term, omitting the covenant to renew.* For, if the continued grant of successive leases, and not a single renewal 1 Tracy v. Albany Exch. Co. 3 Selden, E. 472; 17 Wend. K. 71. In New York a lease of agricultural lands for twelve years, with a covenant of renewal for twelve years longer if the lessor shall live, and a further covenant to continue the renewals every twelve years so long as the lessor shall live, is good for the first twelve years, but the covenants for renewal are in contravention of the con- stitution of that State (Art. 1, § 14), and theretbre void. The covenant for renewal, being independent, may fall without im- pairing the grant for the first twelve years. Hart v. Hart, 22 Barb. R. 606. See Stephens v. Reynolds, 6 N. Y. R. 454. Ante, § 74. 2 Piggot V. Mason, 7 Paige R. 412; Richardson v. Sydenham, 2 Ver. 447 ; 2 Ves. R. 498 ; 4 Kent, Com. 109, 3d ed. The good-will of a lease, which means, a reasonable expectation of its renewal by the landlord, is an interest of value, which, as such, courts of equity will .protect. Hence a transfer of the good-will, when embraced in an assignment of the lease for value, is an essential part of the agree- ment of the parties, and as a valid con- tract necessarily implies that no act shall be done by tlie lessee, to deprive his assignee of the benefit which the transfer was meant to secure to him. And, if a lessee, after such a transfer, and before the expiration of the term covered by the lease, secretly obtains from the land- lord, a renewal of tlie lease to himself, he violates, if not the letter, the intent and spirit of his contract. Such an act is a breach of good taith, involving a sacrifice of interests he was bound to protect ; and a court of equity will not suffer him to hold any advantage so obtained, but will compel liim to assign it. Bennett v. Van- syckel, 4 Duer, R. 462. 8 Whitlock V. Duffield, 1 Hoffman, Ch. R. 110 ; Abeel v. Radcliff, 18 Johns. R. 297 ; Rutgers v. Hunter, 6 Johns. Ch. R. 215; Moore v. Foley, 6 Ves. R. 237; 2 Ves. Jr., 443; 2 Vern. R. 447; 9 Ves. 334. 4 Carr v. Ellison, 20 Wend. R. 178 ; Richardson v. Sydenham, 2 Vern. R. 447 ; Tritton v. Foote, 2 Bro. C. C. 636 ; Tracy V. Albany Exch. Co. 3 Seld. R. 474. A lease for a term of years, " with the privi- lege of two more years if desired," or,e month before the expiration of the period specified at a certain yearly rent, to be paid monthly during the term, with a clause expressing that the lessee had hired and taken the premises " for the term and at the rate aforesaid;'' and that they had agreed to pay the rent ; was held not to contemplate a new lease for the renewal, but that it was intended that this lease, on notice being given, should cover the whole period. And an assignment of the lease after giving notice that the assignee desired the extension, was sufli- cient notice. House c. Burr, 24 Barb. R. 525. SEC. V.J THE COVENANT TO RENEW THE LEASE. 235 only, had been intended, words would naturally have been made use of, indicating such an intention. A different construction would virtually lead to a grant in perpetuity ; and where no con- sideration appears for a grant of so extensive a nature, such cannot be a reasonable construction. Under certain circumstances, a grant of this character may not be unreasonable ; but in every case the intention must be expressed without ambiguity. It is said to be even better, for avoiding fraud, to suffer a party to escape out of a contract, which he may have intended to make, than to enforce it upon a conjecture that such was the intent of the parties.^ § 334. A covenant which plainly implies a perpetual renewal will not be enforced ; but a covenant to renew, in general terms, not specifying the particular period for which the renewal is to be made, as to grant such further lease as the lessee, his executors, &c., shall desire ; will receive a reasonable construction, and the usual term of twenty-one years will be directed.^ It has also been decided, in a recent English case, that a covenant to renew from time to time, and to perfect such other further assurance as the lessee should require, at such rents and under such covenants as were contained in said indenture of lease, at the charge of the lessee, was to be construed as a covenant for further assurance, and not for perpetual renewal.^ 1 Iggulden V. May, supra; Willan v. which the lessee should place upon the Willan, 16 Ves. E. 84 ; 3 ib. 298 ; 13 ib. premises ; and the lessee covenanted in 549 ; Harnett v. Yielding, 2 Sch. & Lef. the like case that at the end of the term, 558. upon the lessor's paying for the improve- 2 Hyde v. Skinner, 2 P. "Wms. 196, ments as aforesaid, he would peaceably per Ld. Ch. Macclesfield : the executors surrender the possession of the premises of every person are implied in himself, to the lessor and his assigns ; it was held and are bound without being named. The in this case, that the lessor's right to de- meaning of this covenant was, that the mand possession at the expiration of the lessee might be reimbursed the money he term was not qualified by the obligation had laid out in improvements ; and it is to pay for the improvements, and there- immaterial whether the testator or his fore that the assignee (there being no executors required the renewal. But renewal of the lease) could recover pos- then the request is too broad ; he can only session, although the improvements were have a renewal for the usual term of not paid for. The words, upon the les- twenty-one years. And though the lease see's paying, &c., did not constitute a con- is to be made on the same covenants, yet dition precedent, to the lessor's right to that shall not take in a covenant for the have possession, after the lease had ex- renewal of a new lease, forasmuch as then pired. Tallman v. Coffin, 4 Comst. 184. the lease woidd never end. That the tenant may keep possession, ' Brown v. Tighe, 8 Bli. 272; N. s. 2 after the expiration of the term, until the CI. & Fin. 396. This covenant may be covenant has been performed on the part qualified by various other conditions. As of the landlord; but is not discharged where a lease for ten years contained a from the payment of rent during his covenant of renewal for ten years longer, prolonged occupancy. See Holsman v. if the parties could agree on the rent, and Abrams, 2 Duer, R. 485. Posl, § 588, the lessor covenanted, in case they did note 6. not so agree, to pay for improvements 236 , LAW OP LANDLORD AND TENANT. [CHAP. VIII. § 335. Sometimes this covenant is in the alternative, either to renew or to pay the appraised value of the buildings to be erected by the lessee during his term ; the appraisement in such a case is considered in the light of an arbitration, and is final between the parties as well as between their personal representatives.^ And where, in a building lease for twenty-one years, at a certain annual rent, it was covenanted, that, at the expiration of the term, the buildings to be erected, and the improvements to be made by the lessee, should be valued in the manner specified in the lease ; and if the lessor should not abide by and pay the amount of such valuation, he should renew the lease or redemise the lot, at such rents and upon such terms as might be agreed upon between the parties ; at the end of the term, the lessee refused to accept a redemise of the lot upon any terms, and insisted upon being paid for his buildings and improvements, according to the valuation thereof made pursuant to the covenant in the lease ; and the lessor tendered a renewal of the lease, for the same term and for the same rent, without any covenants as to buildmgs, or paying for buildings or improvements ; Chancellor Kent held that the lessee was bound to accept the renewal of the former lease so tendered, or give up all claim to be paid for the buildings or improvements.^ If a tenant claims a right of renewal by force of a long-contiiiued 1 Van Cortland v. TJnderhill, 17 Johns, recover nothing for the building. Pike R. 405; HoUiday v. Marshall, 7 ibid. 211 ; s. Butler et al. 4 N. Y. E. 360, reversing Kenwick v. Renwick, 1 Bradf. R. 234. w. c. in 4 Barb. E. 650. When, simul- ^ Rutgers v. Hunter, 6 Johns. Ch .R. taneously with the execution of a lease 215. In New York, the covenant to pay for a term of years, an agreement is made, for improvements made by a lessee, dur- whereby the landlord stipulates, that, at ing the continuance of his term, is of ire- the end of the term, he will renew the quent occurrence. The lessor of premises lease or pay for the buildings erected by covenanted, that if the lessee should erect the tenant, and, at the end of the term, he a two-story dwelling-house, correspond- tenders a renewal, which the tenant le- ing in elevation with a house already fuses to accept, the landlord is entitled to built on a part of the demised premises, recover possession without paying for the he would, at the termination of the lease, buildings. Pearce et al. v. Golden et al. pay for the building so erected, at a valua- 8 Barb. R. 522. Where there was a fair tion to be made by appraisers. The tenant effort on the part of the assignee of the erected a building, which did not corres- lessee to have the improvements ap- pend in height with the house referred to, praised, they were in fact valued before and was not finished as a dwelling-house, the expiration of the term, their value although it was capable of being turned was ascertained and proved to the court, into one with little expense ; the lessor and the heirs had received the benefit of made no objection, although he had full the improvements in the enhanced value knowledge of the character of the build- of the property, the court held, in the ing, and did not intimate that any ques- exercise of its equitable powers, that the tion would be raised as to the lessee's time of tlie stipulated appraisement was right to be paid for the building as it not so far essential to the substance of stood. It was held that in the absence of the contract as to destroy the claim for fraud, or a waiver on the part of the lo.s- the value of the improvements. Een- .^oi-, inducing the lessee to depart from tlie wick v. Eenwick, supra. tei-ms of tlic covenant, t'..e lessee could SEC. V.J THE COVENANT TO RENEW THE LEASE. 237 custom to renew, independent of any covenant to that effect, the mere fact of his having expended money in improving the estate will not give him a right to demand such renewal in a court of equity. There must be some covenant or agreement, or at least some arrangement with the tenant, equivalent to an agreement relative to the improvements, by which the landlord has encouraged him to proceed. Equity will then consider such arrangement as an implied agreement that the tenant shall have the benefit of his expenditure, and interfere to prevent the landlord from putting an end to the tenancy .^ § 335 a. This covenant is sometimes varied by a stipulation to convey the premises to the lessee, at the end of the tei'm, at a cer- tain specified sum, if the lessor shall decline to pay for the improve- ments at their appraised value. In a case of this kind it was held that the assignee of a moiety of the premises might compel a per- formance of the contract, either by a suit in the name of all, or, if the others refuse to sue, in his own name, the court protecting the rights of all the parties.^ But where a lessor covenanted that if the lessee should divide the premises into lots of certain dimensions, and the sub-lessees should erect buildings thereon, of a certain description, that they should severally have the privilege of pur- chasing their lots at the end of the term ; it was held that the erection of a building partly on both, or buildings of an entirely different description on each, gave them no right to purchase.^ And we may here observe, that, independent of an agreement, the law imposes no obligation upon a landlord to pay the tenant for improvements he has made during his term ; the tenant's right in respect thereto has never been extended further than to allow him to remove them before the expiration of his term.* 1 Pilling V. Armltage, 12 Ves. R. 78 ; having failed to make the buildings fire- 2 Bro. Ch. Cas. 140; 1 Eq. Cas. Abr. 18. proof, it was held that the covenant to A covenant to pay at the end of the term pay could not be enforced. Pisher v. for all the buildings and improvements Pisher, 1 Bradf. E. 335. Although equity that may be made on the land, means, on cannot specifically enforce a covenant to a reasonable construction, to pay for such pay for the tenant's improvements, at an as are on the land at the end of the term, appraisal to be made, yet where the land- Van Rensselaer v. Penniman, 6 Wend. R. lords are trustees and not the original les- 569. An agreement to pay for all build- sors, and refiise to renew, the court may ings and improvements to be erected by decree payment for the buildings from the the lessee does not extend to ordinary trust fund. Robinson v. Keteltas, 4 Edw. repairs. Lametti v, Anderson, 6 Cow. R. R. 67. 302. Where a lessor covenanted to re- ^ Van Horn v. Cain, 1 Paige, R. 455; new or " to pay the value of such build- Ostrander v. Livingston, 8 Barb. Ch. R ings as should be erected in pursuance of 416. the lease," and by the terms of the lease ^ Ostrander v. Livingston, suprn. the lessee was to make the buildings fire- * Kutter v. Smith, 2 Wallace, U. S. E. proof within two years; but the lessee 491. 238 LAW OP LANDLORD AND TENANT. [CHAP. VIII. § 336. In the case of church leases, and leases from the trustees of a charity, where the lessors are in the practice of giving new leases to their tenants from time to time, upon the payment of a renewal fine, or a reasonable addition to the rent, the tenant, in regard to third persons, has been held to possess a vendible interest in such imperfect right of renewal, which a court of equity will recognize and protect, although such renewal depends upon the mere volition of the lessors. And if a person, who has a particular or special interest in such a lease, obtains a renewal of it in conse- quence of his being in possession as tenant, or from his having such special interest, the renewal lease is in equity considered as a mere continuance of the original lease, for the protection of the rights of all parties who had any legal or equitable interests in the old lease. Accordingly where a complainant, as the lessee of prem- ises, part of which had been let by him to an under-tenant, contracted with the defendants to sell his interest in the premises to them, for the purpose of enabling them to obtain a renewal, without prejudice to the rights of the sub-lessee, and the defendants, in consequence of such agreement, obtained a new lease of the premises in their own names, and then evicted the sub-lessee, by which the complainant was compelled to make good the loss or damage sustained by him ; it was held that the complainant was entitled to a specific performance of the agreement, and to be indemnified against the claim of the sub-lessee ; and that he had a lien for the unpaid purchase-money upon the legal interest in the premises, which the defendants had acquired under their new lease.^ § 337. Insolvency ,2 or the commission of a felony, on the part of the covenantee,^ will prevent a decree for the specific performance of a covenant of renewal. Nor will the court enforce performance where a tenant has committed waste, treated the land in an unhus- band-like manner, or been guilty of a breach of covenant, for which the lessor has a right of re-entry.* Nor in cases where the agree- ment to renew has been accompanied by fraud or misrepresenta- 1 Phyfe V. Warden, 5 Paige, R. 268 ; = Buckland v. Hall, 8 Ves. R. 92 ; 17 Anderson v. Lemon, 8 N. Y. R. 236. ib. 313 ; 16 ib. 466 ; 2 P. Wms. 196 ; Where one of several joint tenants ob- O'Herliby v. Hedges, 1 Sch. & Lef. 123! tains a renewal to himself alone, it will s Willinghara v. Joyce, 3 Ves. 169. enure to the benefit of all. Burrell v. * Hill v. Barclay, 18 Ves. R 63 • Gour- Bull, 3 Sandf. Ch. R. 15 ; 11 Ves. 383 ; 15 lay v. Duke of Somerset, 1 Ves. & B 68 ■ *. 236 ; 17 ib. 298 ; 1 Bro. C. C. 197 ; 1 B. 3 ib. 29. & Beat. 409. SEC. T.J THE COVENANT TO RENEW THE LEASE. 239 tion ; ^ or the tenant has already been guilty of wilful breaches of a covenant, agreed to be inserted in the new lease. But a surrender and conveyance to the lessor of an under-lease is no bar to a claim on the part of the lessee, or his assigns, for a renewal of the original lease, according to the covenant.^ And if a tenant assigns his contract to a third solvent party, and afterwards becomes bankriipt or insolvent, the court will decree a specific performance against the landlord, in favor of such third party .^ Injuries accruing to the landlord by the acts of the tenant, but which do not amou.nt to a breach of covenant, form no ground for refusing a decree for the specific performance of the contract ; and, therefore, where the tenant, under an agreement for a building lease, had built a brew- house, which injured the value of the landlord's other property in the neighborhood, but there was no covenant not to build a brew- house, the court decreed performance ; saying, that if the erection became a nuisance, the defendant had a remedy at law.* And where the covenant to renew is an independent one, the fact that the lessee was liable to the lessor for rent upon another covenant, coutamed in the lease, does not excuse its performance.^ § 338. As every contract depends upon the consideration for its validity, it is necessary that there be a sufficient and reasonable con- sideration, on the part of the lessee, to support this covenant ; for if an agreement for a renewal be unequal, unjust, or inserted by mistake, a specific performance will not be decreed. A bill was filed on a covenant for the renewal of a leasehold estate, of the yearly value of ,£130, at a fine of £3, by an addition of ten years ; but as there was no adequacy of price for this renewable perpetuity, no onerous services on the part of the lessee, no money advanced, and no improvement made, the bargain was considered so hard and injurious that the bill was dismissed.^ For a similar reason, a voluntary agreement indorsed on a lease, by one not a party to it, but only a remainder-man, will not bind him to the performance of a covenant for renewal, contained in such a lease.'' So a promise by letter to renew a lease, in consequence of money already ex- pended on the premises, is a void promise, being founded upon a past consideration, which equity will not enforce. Nor will the 1 Pendred v. Griffith, 1 Br. P. C. 314. ^ Tracy v. Albany Exch. Co. supra, 2 Piggott V. Mason, 1 Paige, R. 412. 5 Barn. &. Aid. 584. ' Crosbie v. Tooke, 1 Mylne & Keen, " Kedshaw v. Bedford Level, 1 Eden, 431 ; 1 Mont. & Ayr. 214, 435. R. 346. * Gordon y. Smart, 1 Sim, & Stu. 66. ' Powling v. Mill, 1 Mod. K. 541. 240 LAW OP LANDLORD AND TENANT. [CHAP. Till. laying out of money afterwards, if it is voluntary, vary the case ; but if the promise is founded on a previously expressed intention of doing so, which is not objected to, a specific performance will be decreed.^ § 339. If the tenant is guilty of laches in demanding a renewal, equity will not, in general, aid him.^ Circumstances may, in par- ticular cases, excuse the laches ; but generally the lessor cannot continue bound by his covenant, where the lessee has neglected to perform the conditions with which it was cou^Dled. There would be no mutuality in such dealing, if it were left to the option of the lessee alone to enforce the contract when he pleased, but to leave himself free as long as he found it convenient.^ The court will only interfere beyond the stipulations of a covenant, where a literal performance has been prevented by unavoidable accident, fraud, surprise, or ignorance not wilful, and upon compensation being made and no injury done to the lessor.* Accordingly, where an original lessee, with a covenant for renewal, died, and the instru- ment came into the possession of his executor, who was ignorant of the covenants of the lease, and that his testator was one of the lives named therein, until apprised of it by his solicitor ; the court were of opinion that such ignorance of the contents of the lease did not entitle the plaintiff to seek relief in a court of equity, or absolve him from the effect of omitting to apply for a renewal in time.^ So when it appeared that the assignee of the lease did not know of the death of the cestui que vie, but accotinted for his igno- rance on the ground that the description in the lease, of the residence and trade of the person, did not correspond with his actual resi- dence and trade at the time of his decease ; and, therefore, though the owner of the lease knew of the death of this person, but was mis- taken as to his identity, and immediately upon his receiving infor- mation on the subject applied for a renewal ; the Master of the Rolls, Sir J. Leach, thought that these circumstances did not entitle the plaintiff to relief in equity, upon the principle that a lessee was bound to inform himself correctly as to the lives, and make appli- cation within the prescribed period.® 1 Robertson v. St. John, 2 Bro. C. C. i Bro, C. C. 415. But see Maxwell v. 140; Richardson V. Sydenham, si;pra. Ward, 11 Price, 16, the opinion of Lord ^ Eaton u. Lyon, 3 Ves. 690; 1 Ball & C. B. Richards. B. 285. ^ Maxwell v. Ward, 13 Price, 676 ; B.C. 3 City of London v. Mitford, 14 Ves. McLel. 458, 464. 41. " Harris v. Bryant, Rolls, 10 Dec. * Eaton V. Lyon, .tvprn : 1 Yes. .Tr. 1827, cited Piatt on Covenants, 263. 475 ; 3 Ves. 295 ; Rawstorne v. Bentley, SEC. TI.] THE COVENANT TO PAT TAXES AND ASSESSMENTS. 241 § 340. The legal effect of taking a new lease is a surrender of the old one ; but a renewed lease is to be considered as a continuance of the original lease, for the protection of all legal interests carved out of it, which, when once well-created, the law does not permit to be destroyed.! It was formerly considered necessary to obtain the concurrence of all the under-lessees to a surrender of their existing interests, in order to obtain a renewal of the principal lease, and such renewal might be prevented or delayed by the refusal of one under-tenant to surrender his lease ; and if there was no covenant in the under-lease to that effect, the court possessed no power to compel the under-tenant to surrender.^ The statute 4 Geo. II. c. 28, § 6, from which the section of the New York Eevised Statutes before mentioned is taken, provided a remedy for such inconve- niences, by enacting that, in case any lease shall be surrendered, in order to be renewed, the renewal shall be good and valid to all intents and purposes, without a surrender of any of the under- leases derived out of the original lease, allowing all the parties, however, to enjoy their rights and remedies, in the same manner and to the same extent as if the original lease still continued. SECTION VI. THE COVENANT TO PAY TAXES AND ASSESSMENTS. § 341. Another obligation which the law imposes upon the land- lord, when the lease is silent upon the subject, is the payment of all State, city, and county taxes and assessments, which during the term may become chargeable upon the premises, or any ground-rent the property may be subject to.^ An express agreement is some- 1 CoUett V. Hooper, 13 Ves. K. 260. ^ Colchester v. Arnott, 2 Vera. E. Where new leases are regarded as a con- 383 ; s. c. Free. Ch. 124. tinuance of the original term, as in the * Taylor v. Zamira, 6 Taunt. E. 524 ; case of church leases, a mortgage of the 12 East, E. 469 ; Carter v. Carter, 5 Bing. leasehold premises attaches to a continu- 409 ; 5 B. & C. 789 ; Watson v. Atkins, 3 ance of thfe lease. Gibbes v. Jenkins, 3 B. &A. 647. Taxes are burdens, charges, Sandf. Ch. E. 130. The acceptance by a or impositions set on persons or property lessee of a renewal of the lease is no sat^ for pubUc uses ; and import a contribution isfaction of a breach of the lessor's cove- in money, not labor nor personal service, nant ; for example, his covenant for quiet An assessment for a supposed benefit is enjoyment. Lord v. Vreeland, 15 Ab. not a tax. Overseers of Amenia v. Over- Pr. E. 122. seers of Stanford, 6 Johns. E. 92 ; Sharp v. 21 Spier, 4 Hill, E. 76, 20 N. Y. E. 328. 242 LAW OP LANDLORD AND TENANT. [CHAP. Till. times introduced into the lease, by which this obligation is shifted, and the tenant undertakes to pay them ; but without such an agree- ment the tenant may discharge them, and deduct what he is obliged to pay out of the rent ; for the general rule is, that the immediate landlord is bound to protect his tenant from all paramount claims. When, therefore, a tenant has been compelled, in order to protect himself in the enjoyment of the land, in respect of which his rent is payable, to make payments which ought, as between himself and his landlord, to have been made by the latter, he is considered as having been authorized by the landlord so to apply his rent due or to become due.^ The landlord sometimes covenants to pay a cer- tain portion of such charges only ; but, according to the English cases, he is chargeable only in proportion to the rent he receives. And where he covenanted to pay taxes, and the premises were taxed at ^150, and he received only ^£120 for rent, the covenant was held to be satisfied by the payment of the tax at the rate of £120.2 If he expressly covenants to pay all taxes charged, or to be charged upon, or in respect of the land during the continuance of the term, and gives the lessee permission to biiild on the land, who subse- quently builds, and thereby increases the annual value of the premises, and with it the amount of the taxes, the landlord will be bound to pay taxes only in proportion to the value of the land without the building, and the tenant must make up the balance for the improved value .^ § 342. The obligation of the landlord to pay all public charges against the property, except such as the tenant has expressly under- taken' to pay, renders him liable also to reimburse the tenant for all such payments as he has been obliged to make, to protect his goods, or the property leased, from the demands of the public collector.* And where the goods of an out-going tenant, left by him on the farm, were distrained for a tax payable by the tenant, in whose time it became due, and who received the benefit of the improve- 1 Graham v. AUsopp, 3 Exch. 186 ; unless there be an agreement to the con- Jones V. Morris, ib. 7i2. By the Revised trary. Statutes of Massachusetts, chap. 7, see. 8, ^ Yaw v. Leman, 1 Wils. R. 21 ; and where a tenant paying rent for real estate see Watson v. Atkins, 3 B. & A. 647. shall be taxed therefor, he may retain out ^ Watson v. Home, 7 B. & C. 285. of his rent, the one half of the taxes paid A covenant by a landlord to pay land-tax, by him ; and when the landlord is assessed binds him only to pay land-tax in propor- for such real estate, he may recover one tion of rent. Whitfield v. Brandwood, 2 half of the taxes paid by him and his rent Stark. 440. in the same action against his tenant ; * Spencer v. Parry, 8 Ad. & El. 331 ; Lubbock V. Tribe, 3 M. & Wels. 607. SEC. VI.] THE COVENANT TO PAY TAXES AND ASSESSMENTS. 243 ment, and which the statute. gave him power to deduct from his rent ; the court held that, as the tax must ultimately fall on the landlord, and the tenant had been compelled to pay it, in order to ransom his goods, he might recover the amount from the land- lord as money paid to his use.^ 1 Dawson v. Linton, 5 B. & A. 521. On a lease for years, rendering a fixed sum for rent,yrce and clear from all manner of taxes, charges and impositions what- soever, the lessor is entitled to receive the whole rent, without any deduction for taxes, or charges of any description. Giles V. Hooper, Carth. E. 135. Brew- ster V. Kidgil, Salk. E. 198 ; s. c. Ld. Kay, 318. In New York, the interest of a lessee of real estate is taxable as real property, notwithstanding that, as between heirs and executors, it is, by 2 R. S. 88, § 6, per- sonal property. Trustees of Elmira v. Dunn, 22 Barb. E. 402. Such a tax would not of course fall upon the land- lord. And see, ante, §§ 14, 50. But rents due upon leases for twenty-one years are taxable as the personal estate of the laud- lord, under the New York law of 1846, to equalize taxation, and such rents continue to be taxable until the end of the term, althpugh at the time of laying the tax, such leases have but a few years to run. And a landlord cannot evade this liability, by setting up an agreement between him- self and his tenant, that a new lease shall be executed for the unexpired term. Liv- ingston V. Hallenbeck, 4 Barb. E. 9 ; Le Coulteulx V. Supervisors of Erie, 7 Barb. E. 249 ; 15 N. Y. E. 451. Nor is there any difference, in this respect, between agricultural and city property ; or whether the tax is levied for city, county, or State purposes. lb. 244 LAW OP LANDLORD AND TENANT. [CHAP. IX. CHAPTEE IX. COVENANTS ON THE PAET OF THE LESSEE. SECTION I. OF THE COVENANT TO EEPAIE, AND HEREIN OP WASTE. § 343. Independent of an express agreement, the law imposes upon every tenant, whether for life or for years, an obligation to treat the premises in such a manner that no substantial injury shall be done to them ; and so that they may revert to the lessor at the end of the term unimpaired by any wilful or negligent conduct on his part. A tenant for years, or from year to year, must keep the premises wind and water tight ;i and is bound to make fair and tenantable repairs, such as the putting of fences in order, or re- placing doors and windows that are broken during his occupation.^ If it is a furnished house, he must take care of the furniture, and leave it with the linen, &c., clean and in good order.^ But he is not bound to rebuild premises which have accidentally become ruinous during his occupation, unless he is under a covenant to rebuild.* Neither is he liable for the mere wear and tear of the premises ; ^ nor answerable if they are accidentally burnt down ; nor bound to replace doors and sashes worn out by time ; to put a new roof on the building; nor to make similar substantial and lasting repairs, such as are usually called general repairs.® Nor is he bound to do painting, whitewashing, or papering, which are 1 Anworth v. Johnson, 5 Car. & Pa. * Anworth v. Johnson, supra; Bullock 239 ; Leach v. Thomas, 7 ib. 327. v. Dommitt, 6 Term R. 650. 2 Cheetham v. Hampson, 4 Term R. ^ Torriano v. Young, 6 Car. & Pa. 8. 318 ; 18 Ves. R. 331 ; Ferguson v. , « Leach v. Thomas, supra; Doe dem. 2 Esp. R. 590. See, ante, § 330, note ; and Thomson v. Avney, 12 Ad. & El. 476 ; post, § 375, note. s.c. 4 Par. & Da. 177 ; Horsefal v. Mather, " White V. Nicholson, 4 Man. & Gr. Holt's N. P. R. 7; Brown u. Crump, 1 95 ; Hawley v. Stanley, 12 Mees. & Wels. Marsh. 667. 827. SEC. I.] OP THE COVENANT TO REPAIR. 245 mere matters of ornament (unless they are necessary to preserve exposed timber from decay) , even though he be under a covenant to leave the premises " in good and sufiicient repair, order, and condition." 1 § 344. As to farming leases, a tenant is also under a similar obligation to repair, but it differs from his liability to repair houses in this respect, that it extends only to the dwelling-house occupied by the tenant ; the burden of repairing the out-buildings and other erections on the farm, being sustained either by the landlord or the tenant (in the absence of any express provision in the lease), by the particular custom of the country in which the farm is situated ; he is, however, always bound to keep the soil in a proper state of cultivation; and to preserve the timber and ornamental trees in good order, if there be any growing on it.^ The bare relation of landlord and tenant is a sufficient consideration for a promise by the tenant, to treat the farm in a husbandlike manner, and to keep the fences in repair, as well as to cultivate the lands according to the custom of the country ; though not for a promise to repair, or to spend a certain amount annually for manure.^ And in an action against a tenant, upon promises that he would occupy the farm " in a good and husbandlike manner, according to the custom of the country," an allegation that he had treated the estate " contrary to good husbandry and the custom of the country," was proved, by showing that he had treated it contrary to the prevalent course of husbandry in that neighborhood ; as by tilling half his farm at once, when no other farmer there tilled more than a third, though many tilled only a fourth ; and it is unnecessary to show any pre- cise definite custom or usage in respect of the quantity tilled.* All these duties fall upon a tenant without any express covenant on his part ; and a breach of them will, in general, render him liable to be punished for waste, without regard to the person by whom the act of waste may be committed ; for it has been held, since the time of Lord Coke, that a tenant, whether for life or for years, must answer for waste done by a stranger, and must take his remedy over.^ 1 Wise V. Metcalfe, 10 B. & C. 312. It = Brown v. Crump, 1 Marsh. E. 567 ; 6 is to be observed, that there is no implied Taunt. R. 300 ; Powley v. Walker, 5 Term contract to use the premises in a tenant- R. 373 ; Tempest v. Rawling, 13 East, 18 ; like manner, where there is an express Cheetham v. Hampson, supra. covenant to repair, contained in the lease, ^ Legh v. Hewett, 4 East, R. 154 ; for expressum facit cessare taciturn. Andrew Dalby v. Hirst, 3 Moo. 536. V. Christmas, 10 Q. B. 135. ^ -Lord Mansfield, in Taylor v. White- 2 Hem 0. Benbow, 4 Taunt. 764; Co. head, 2 Doug. R. 745; Attersol v. Ste- Lit. 53. vens, 1 Taunt. 198, and per Beardsley, J., 21* 246 LAW OP LANDLORD AND TENANT. [CHAP. IX. § 345. Waste is usually defined to he, a spoil or destruction in houses, lands, or tenements, to the damage of him in reversion or remainder ; and may be either voluntary or permissive. It is volun- tary where the tenant does some actual injury to the premises, as in pulling down or destroying a house, ploughing up a flower-gar- den, or the like ; and permissive when he neglects to do what might have prevented the waste, as by suffering a house to fall down or decay for the want of repair. It may be incurred in respect to the soil, the buildings, trees, fences, or the live-stock on the premises.^ It is a general principle, says Chief Justice Savage, that the law considers every thing to be waste which does a permanent injury to the inheritance ; and, therefore, where the value of the land con- sists principally in hemlock timber growing upon it, the act of cutting such timber and peeling the bark, when such cutting is not necessary and proper for the purpose of cultivation, will be consid- ered waste.2 To open new mines, in land demised, without mention of mines ; to dig and carry away the soil, dig clay, open gravel-pits, and the like (unless for the repair of the premises), are instances of voluntary waste, because these things do an injury to the inher- itance.^ So is it also to cut timber ; to use the soil for making in Cook V. Champlain Company, 1 Denio, law from doing ; whUe permissive waste E. 104. At common law there was a dis- allows something to happen, which he is tinction hetween tenants of estates created bound by law to prevent. The one is an by the act of the law, and those created offence of commission, the other of omis- by the contract of the parties ; the former sion. having always been punishable for com- ^ The People v. Alberty, 11 Wend. R. mitting waste, the latter not so. Thus, 162; Jackson v. Brownson, 7 Johns. R. tenants by the curtesy, or in dower, were 227. In an action to recover damages for always restrained from waste, while a ten- waste, the jury are to inquire, how far the ant for years was not : for while it was acts complained of have injured the plain- considered a hardship if the law were to tiff's estate and inheritance. Harder v. give the estate, without restraining the Harder, 26 Barb. R. 409. That the test person to whom it was given, from doing of waste is not injury to the premises, but injury to the inheritance, it was quite disherison of the reversion. See Living- otherwise as to a person who had let in a ston v. Reynolds, 26 Wend. R. 115 ; Kidd tenant by express contract, and who had v. Dennison, 6 Barb. R. 9. the power of inserting in that contract, ^ Livingston v. Reynolds, 2 HiU (N. express stipulations against the commis- Y.), R. 157; Coates v. Cheever, 1 Cow. sion of waste, and had neglected to do so. R. 460; Saunder's Case, 5 R. 12, a; 22 This doctrine, however, was found to be Vin. Abr. 439. When the law defines very inconvenient, when carried out in waste to be whatever does a lasting dam- practice, and the statutes, commencing age to the freehold or inheritance, it with that of Marlbridge, 52 Hen. 3, c. 23, does not mean that it is to be left to a restrained all tenants of particular estates jury to determine according to the opin- from doing waste, in the same manner as ions of witnesses, whether the act com- tenants by the curtesy and in dower had plained of causes such damage ; for eer- been previous to those statutes. Co. Lit. tain acts are in contemplation of law 299. injurious per se to the inheritance, and the 1 Co. Lit. 53, b ; 2 Rol. Abr. 816, 1. 15. only subject of inquiry for the jury is, Voluntary waste consists in doing some- whether such acts have been committed, thing winch the tenant is prohibited by McGregor v. Brown, 10 N. Y. R. 114. SEC. I.] OP THE COVENANT TO REPAIR. 247 brick ; to change the face of the soil by converting arable land into pasture, or pasture land into arable ; to turn garden ground into tillage ; to sow grain in hop grounds ; to plough up strawberry beds ; and, in short, to essentially vary, in any manner, the quality of the soil, or the nature of its produce ; for it not only changes the course of husbandry, but the landlord is thereby in danger of losing evidence of the identity of his property.^ § 346. But the offence is said to consist in the first penetration and opening of the soil ; and, therefore, it is not waste to continue to dig in mines or pits already open, and which have become part of the annual profit of the land. And if mines, pits, &c., be ex- pressly named in the lease, so as to show an intention that the lessee shall have the benefit of their produce, it will not be waste for him to open them.^ Or where clay, marl, &c., are taken from the soil for the purpose of repairing the buildings or improving the land, this will not be waste.^ Neither will it be so considered to dig trenches to carry off water, or to cut turf for acttial use.* But any thing tending to the destruction of the subject of the demise is waste ; as if the lessee cuts down pear, apple, or other fruit trees ; or they are blown down by tempest, and he afterwards roots them up, or cuts down the growing germins, without planting new.^ So if he destroys, or suffers the stock of a dove-cot, warren, park, or fish-pond, to be diminished so that there is not such sufficient store left, as he found when he came in.® And if he voluntarily puts repairs upon the premises, he cannot afterwards displace and remove them without committing waste.'' § 347. If the tenant suffer the land to be overflowed or sur- 1 Livingston v. Livingston, 26 Wend, his term with an exception of the profits E. 122 ; Wetherell v. Howell, 1 Camp, of the mines, or the mines themselves, or 227 ; Sarles v. Sarles, 3 Sandf Ch. K. of the timber trees, &e., the exception is 601 ; Shipley v. Eitter, 7 Md. E. 8 ; void. Doe v. Wood, 2 Barn. & Aid. 724. Clement v. Wheeler, 6 N. H. E. 861 ; Upon the principle of Saunder's case, it Queen's College, Oxford, v. Hallett, 14 has been held in Maryland, that the open- East, E. 489 ; 2 Eol. Ahr. 815 ; Hob. 238, ing of a new mine is waste. Owings v. 2 B. & P. 86. Besides, the tenant has no Emery, 4 Gill, 260. This case also held authority to assume the right of judging that a lease of a lot of ground without any what may be an improvement to the in- reference to mines or quarries was sim- heritance ; but must confine himself to ply a grant of the superficies of the soU. the conditions of his lease. Per Paige, ^ Moyle v. Moyle, Owen, 67. J., in Kidd v. Dennison, supra. * 2 Eol. Ahr. 820, 1. 23 ; Co. Lit. 53, 2 Crouch V. Puryear, 1 Band. E. 258 ; b ; Lord Courtown v. Ward, 1 Sch. & Saunder's case, 5 E. 12. It was further Lef 8. decided in this case, that if the land be ^ Eol. Abr. 817, 1. 35 ; Co. Lit. 53, a ; leased, in which there is a hidden mine, Cro. Jac. 126. and the lessee opens it, and then assigns ^ Co. Lit. 53, a ; 2 Inst. 304. over his estate, the assignee cannot dig in ' Caldwell v. Enkas, 2 MiU. Cons. ; s.c. it ; and if the lessee in such case assigns Eep. 348. 248 LAW OF LANDLORD AND TENANT. [CHAP. IX. rounded by water, through his negligence in permitting the embank- ments to fall into decay, he will be chargeable with permissive waste to the soil ; but if the overflow or other injury be caused by a tempest, he will not be answerable for such accident, unless he omits to repair the damage.^ If a house be destroyed by tempest, fire from lightning, or the like, which is the act of Providence, it is not waste,^ for actus Dei neminifacit injuriam. Yet it becomes so, if the damage done by the tempest was occasioned by the tenant's previous neglect to repair, or if he does not forthwith proceed to repair .2 But if the house is in a ruinous condition when the tenant comes in, and he pulls it down, it is still waste, unless he builds it up again.* And if glass windows (although glazed by the tenant himself) be broken or carried away, it is waste ; for the glass is part of the house, and the tenant must, at his peril, keep the house from wasting. Waste may also be done in respect to animals; which happens by taking or destroying so many of them as to un- stock the dove-cot, warren, park, or fish-pond, in which they are kept;^ or if the tenant stops the pigeon-holes, so that the pigeons cannot build, or suffers the park paling to be decayed, so that the deer stray away and are lost.^ § 348. Voluntary waste to buildings at common law occurs not only where they are deliberately pulled down or unroofed, but also where one kind of building is altered into another, even though it be thereby improved in value ; as, for instance, to alter a corn-mill into a fulling-mill ; a dwelling-house into a store, or a hall into a stable ; ' throwing two rooms into one ; ^ pulling down the house and rebuilding it upon a greater or less scale than before ; or to convert a brew-house, which let for £120 per annum, into dwelling- houses, which let for .£200 per annum ; because, as it was said, of the alteration of the nature of the thing, and of the evidence.^ Besides 1 Griffith's Case, Moore, 62 ; Co. Lit. ' Greene v. Cole, 2 Saund. R. 252 ; 53, Id ; Reg. v. Leigh, 10 A. & E. 398. Co. Lit. 53, a; 1 Lev. K. 309 ; 1 Mod. R. 2 Co. Lit. 53, a. But if the house was 94 ; 5 Ves. 689. In Sweetser v. Eames, burnt by the tenant's negligence, it is 3 Dane, Abr. 233, it was held not to be still waste. Co. Lit. 53, b. Or if the waste for the lessee of a corn and grist- roof were blown off, it would be waste mill, to turn the mill into one for grinding unless he repaired it in a reasonable time, dyewoods, although the lessee took away 2 Rol. Abr. 820. part of the apparatus for grinding corn, 8 Moore, 62; Viner's Abr. Waste (1). and substituted others. 4 Co. Lit. 53, a. s 2 Rol. Abr. 815 ; 22 Vin. Abr. 439; 5 Vavasor's Case, 2 Leon. 222 ; 4 Leon. London v. Greyme, Cro. Jac. 182. 240. 9 Bannister v. Saddler, 14 Ves. 526. ^ Moyle V. Moyle, Owen, 66. Alterations of the house demised are not SEC. I.] OF THE COVENANT TO REPAIR. 249 which, it might have the eiFect of casting an additional obligation on the reversioner, which he might not consider an improvement. It was therefore considered incompatible with his interest for a tenant to make any such alterations unless he was justified by the express permission of his landlord. But this strictness of the com- mon law has been essentially modified in this country, and, as now understood, it is no waste for the tenant to erect a new edifice upon the demised premises, if it can be done without destroying or ma- terially injuring the buildings or other improvements already existing thereon. He has no right, indeed, to pull down valuable buildings, or to make improvements or alterations which will materially and permanently change the nature of the property, so as to make it impossible for him to restore the premises substantially at the ex- piration of the term ; but to apply the ancient doctrine of waste to modern tenancies, even for short terms, would, in some of our cities and villages, put an entire stop to the progress of improvement, and deprive the tenant of those benefits which both parties contem- plated at the time of the demise, without any possible advantage to the owner of the reversion .^ § 349. Permissive waste to buildings consists in omitting to keep them in tenantable repair ; suffering the timbers to become rotten by neglecting to cover the house ; or suffering the walls to fall into decay for want of plastering ; ^ or the foundation to be injured by neglecting to turn off a stream of water .^ So, if the house or other erection on the premises is destroyed by fire, through the careless- ness or negligence of the tenant, it is waste, and he must rebuild in a convenient time, at his own expense. The statute before adverted to, only guards a tenant from the consequences of a misfortune of this kind in case the casualty has been purely accidental.* Merely suffering the house to remain unroofed (provided it was so at the commencement of the lease) will not be considered waste ; but the tenant must take the consequences of any other part thereby becoming ruinous or decayed.^ To permit walls built to exclude water to remain in such a dilapidated condition as to cause the lands to be overflowed and injured, is waste ; but not if it be sud- of course waste, when made without the 435; 5 Ves. Jr. 147, 260, and note ; 6 ib. concurrence of the lessor, unless they are 106. prejudicial to the estate. Jackson v. Tib- i Winship v. Pitts, 3 Paige, R. 259. bitts, 3 Wend. R. 341. An injunction was ^ Cq. Lit. 53^ a ; 2 Rol. Abr. 815, 1. 31. granted to prevent a lessee from alter- ^ Stickleham v. Hatchman, Owen, 43 ing a dwelling-house into a warehouse. * Co. Lit. 53, b ; 1 Ves. 462. Douglas V. Wiggins, 1 Johns. Ch. R. * 2 Rol. Abr. 818, 1. 1. 250 LAW OP LANDLORD AND TENANT. [CHAP. IX. denly surrounded by the violence of the sea, as by a tempest, without any fault of the tenant.^ And though the destriiction of a house by lightning, tempest, or a public enemy, is not waste, to suffer it to remain ruined will be so.^ Its destruction by a mob is waste .^ § 350. Not only the local custom, but the particular circum- stances of the case, must be taken into the account, in determining whether the cutting of any given wood is waste or not. To destroy a wood of willows or hazels is waste ; but cutting willows and hazels in a wood of oak, which are underwood, is no waste.* But to cut trees that are not timber, and which are growing in defence of, or to ornament the house, or fruit trees growing in an orchard or garden, will amount to waste.^ In determining the question whether trees appertaining to a dwelling-house are ornamental trees or not, it is important to ascertain whether they have been considered and treated as such by the owner of the premises.^ Cutting willows which grew on the bank of a river, by which the bank fell down, and a meadow adjoining was overflowed, was held to be waste.-' But cutting a ditch from the Mohawk River, and diverting it from its channel so as to overflow a swamp covered with timber, by means of which the timber died, was held to be no waste, when it appeared that a new and better growth of timber had sprung up, which, in the opinion of the witnesses, was worth more than the old timber.^ The general property in trees that are timber is in the owner of the inheritance of the land on which they grow ; that in the bushes and underwood is in the tenant.^ Accordingly, if trees, being timber, are blown down by the wind, or severed by a trespasser, they belong to the lessor, and not to the tenant for life or years, for they are part of the inheritance.^^ But if trees not fit for timber are cut down by the lessor, the property in such trees is vested in the ten- ant ; for the lessor would have no right to them if severed by the act of God, and, therefore, can have no right to them, where they 1 Gi-iffith's Case, Moore, 69. ^ Sir G. Stripling's Case, 22 Vin. Abr. 2 Co. Lit. 53, a. 449, pi. 11. s White V. Hagner, 4 Har. & Johns. R. * Jackson v. Andrew, 18 Johns. K. 431. 373. 9 Per Tindal, C. J., in Berrimau v. « Bro. Waste, pi. 21. Peacock, 9 Bingh. 386. A sale of stand- 6 Co. Lit. 53, a, b. ing trees by parol is a sale of an interest « Hawley v. Wolyerton, 5 Paige, E. in land, and void by the statute of frauds. 522. Trees on a highway, not needed for Per Edwards, J., in McGregor v. Brown, its construction or repair, belong to the 10 N. Y. R. 114. owner of the soil. 1 N. Y. R. S. 525, § i» Ward v. Andrews, 2 Chit. R. 636 ; 126. Mooers v. Waite, 3 Wend. E. 104. SEC. I.] OF THE COVENANT TO REPAIR. 251 have been severed by his own wrongful act ; and the same rule holds where they have been severed by a stranger.^ What consti- tutes timber depends much upon the custom and opinion of the place where it is situated ; ^ but it is said that trees ijaust be at least twenty years old to constitute timber, and must also be fit for build- ing purposes.* § 351. A tenant, however, whether for life or for years, may lawfully cut timber trees for the necessary repairs of the house and fences, even though he has agreed to repair at his own charge ; * but then it must be for the repair of such buildings as were on the premises when he entered into possession, and not for such as he may have subsequently erected.^ And he is entitled to take reason- able estovers, that is wood from the land, for fuel, fences, agricultural erections, and other necessary improvements. Nor is it absolutely necessary that such firewood be used on the premises, provided it is taken in good faith for the use of the tenant and his servants, in reasonable quantities, and the inheritance is not injured.^ If the house be destroyed or injured by an accidental fire, the tenant may cut timber to rebuild it ; but he cannot cut timber 'to build a new house or new fences where none were before.^ It must, moreover, be for I'epairs which are presently needed, and not for such as are only likely to become necessary ; ^ nor for such as have been occa- sioned by his own negligence ; for if the tenant suffer the buildings to fall mto decay, and then cut timber to repair them, he will be guilty of double waste .^ And if a lessee is authorized by his lease to cut wood for fuel or fencing, he must comply substantially with the conditions of his lease. He cannot omit for years to take fire- wood and fencing timber from the premises, suffering the wood proper for those uses to be destroyed and wasted, and then, by way of compensation or indemnity, enter upon the premises, and take timber and wood to which the lease gives him no right.^" § 352. The timber must be absolutely and immediately employed in the repairs for which it was cut ; for if the tenant cut down tim- 1 Channon v. Patch, 5 B. & C. 897 ; 2 « Gardiner v. Bering, 1 Paige, R. 573 ; Chit. R. 636. Co. Lit. 41, b. 2 Co. Lit. 53, a ; Kidd v. Dennison, ' Darey v. Asquith, Hob. 238. supra. ^ Gorges v. Staniield, Cro. Eliz. 593. 3 Duke of Chandos o. Talbott, 2 P. » Paddleford v. Paddleford, 7 Pick. R. Wms. 606. 152; Co. Lit. 58, b; 2 Eol. Abr. 822, 1. * Moore, 23 ; Co. Lit. 54, b; Harder y. 38; 15 Mass. R. 164. Harder, 26 Barb. R. 409. " Clarke v. Cummings, 5 Barb. E. 340. 6 Co. Lit. 53, a; 41, b. 252 LAW OP LANDLOED AND TENANT. [CHAP. IX. ber and sell it, and out of the proceeds repair the house,^ or if he sell it, and afterwards buy it again, and then use it for repairing, he will, in either case, be guilty of waste, for the selling of the trees is waste.^ It is so, also, if he cut timber for the purpose of neces- sary repairs, but it turns out to be unfit for that purpose, and he then exchanges it for other timber, which was applied to the repairs ; for the tenant must, at his peril, select such trees as are fit for the purpose, and employ them accordingly.^ But in Massachusetts the court held that it was not waste, in a tenant for life, to cut down timber trees to repair, and sell them to procure boards for the pur- pose, if that mode of exchange was most beneficial for the estate.* And whether trees have been cut bona fide for the purpose of repair- ing, is always a question for a jury.^ Although a tenant may cut firewood for his own use, he may take none to sell, nor any more than is reasonable ; nor can he cut any, so long as there is sufiicieht dead wood on the premises for his consumption.^ He may, how- ever, cut timber trees that are dead, and such trees as are neither timber, nor grow in defence of the house.^ But he may go no further than cutting ; for, if he grub up trees, hedges, or under- wood, he is guilty of waste.^ But when thorns, bushes, furze, or the like, are growing in pasture or arable lands, the tenant may lawfully stub them up, for this is good husbandry and not waste.® § 353. The law of waste accommodates itself to the varying wants and conditions of different countries ; that may not be waste, for example, in an entire woodland country, which would be so in a cleared one. A clearing of land in a new country would not be a lasting damage to the inheritance, nor a disherison of him in re- mainder, which is the true definition of waste. It would, on the contrary, be beneficial to him in remainder, so long as a sufiiciency of timber was left, and the land cleared bears a proper relative proportion to the whole tract.^" And it has been held, that, if the 1 Tin. Abr. Waste (M.), pi. 1, note. Den v. Kinney, 2 South. E. 552; Mc- 2 Co. Lit. 53, b ; 11 East, R. 56. Cracken's Heirs v. McCracken's Ex'rs, 6 ' Simons v. Norton, 7 Bingh. 640. Monroe, R. 342 ; Hastings v. Crunkleton, • Loomis V. Wilbur, 5 Mass. R. 13. 3 Yeates, R. 261. When a farm, consist- " Doe dem. Foley v. Wilson, 11 East, ing mainly of woodland, is leased for 56. agricultural purposes, the lessee is justi- 8 Simmons v. Norton, 7 Bingh. 640 ; fiable in felhng the timber, to fit the land Cro. EUz. 604 ; 7 Bac. Abr. 252. for cultivation, leaving a sufiicient quan- ' Gage V. Smith, 2 Rol. Abr. 817, 1. 17. tity for all the purposes of the farm, and 8 Cro. Jac. 126. the property of the timber cut is in the <• Malverer v. Spinke, Dyer, 37, a. lessee. But, if he cut trees for sale, and M Findlay v. Smith, 6 Munf. (Va.), E. not for the pui-pose of preparing the land 134 ; Crouch v. Puryear, 1 Rand. R. 258 ; for cultivation, it is waste. Kidd v. Den- SEC. I.] OP THE COVENANT TO REPAIR. 253 cleared land on the estate was old and worn, and the proportion of woodland such that a prudent farmer would have considered it best 'to reduce a portion of it to cultivation, thereby to relieve the old land from excess of culture, and thus enhance the value of the estate ; such clearing would not be waste, provided sufficient timber for the permanent use of the estate was left.^ As to woodlands, also, Haywood, J., in a North Carolina case, against a tenant for life, defines waste to be " an unnecessary cutting down and dispos- ing of timber, or destruction thereof, upon woodlands where there is already sufficient cleared land for the tenant's cultivation, and over and above what is necessary to be used for fuel, fences, plan- tation utensils, and the like." ^ But where wild and uncultivated land, wholly covered with wood and timber, is leased, the lessee may fell part of the wood and timber, so as to fit the land for cul- tivation. He may not, however, cut so much as to injure the inheritance ; but to what extent he, may go, without committing waste, is a question for a jury to determine m each particular case.^ If he cuts the trees merely for the sake of profit to be derived from a sale of the timber, and not for the purpose of preparing the land nison, 6 Barb. R. 9; People v. Davison, 4 ib. 109. 1 Owen V. Hyde, 6 Yerger (Tenn.), R. 834; Loomis v. Wilbur, 5 Mason, R. 13; Parkins v. Coxe, 2 Hayw. R. 339. In this country, no act of a tenant amounts to waste, unless it is prejudicial to the in- heritance. Pynchon v. Stearns, 11 Met. R. 304. 2 Ballentine v. Poyner, 2 Hayw. R. 110; Wilson v. Smith, 5 Yerg. R. 379. In New- York, where fifteen mouths is allowed for the redemption of land sold under an execution, betbre the creditor is entitled to take possession, the statute de- clares that certain acts of the occupant shall not amount to waste. Any person entitled to the possession of lands or tene- ments, sold under execution, may, until the expiration of fifteen months from the time of such sale, use and enjoy the same as follows, without being guilty of waste : 1. He may, in all cases, use and enjoy the premises sold, in like manner, and for the like purposes, in and for which they were used and applied prior to such sale, doing no permanent injury to the freehold. 2. If the premises sold were buildings, or any other erections, he may make neces- sary repairs thereto, but he shall make no alterations in the form or structure there- of. 3. If the premises sold were land, he may use and improve the same in the usual course of husbandry', but he shall not be entitled to any crops growing there- on at the expiration of the said fifteen months. 4. He may apply any wood or timber on such land to tlie necessary rep- aration of any fences, buildings, or erec- tions, which may have been thereon at the time of the sale. 5. If the land sold is actually occupied by such person, he may take necessary firewood therefrom for the use of his family. 2 R. S. 336, §21. * Jackson v. Brownson, 7 Johns. R. 227; Adams v. Brereton, 3 Har. & J. 124. The New- York Court of Appeals hold that the cutting of trees by a tenant for years, except under special circum- stances, is waste ; and that in an action by a landlord for such waste, evidence of a parol consent by the landlord to the cutting of the trees, on condition that the tenant would clear and seed down the land where the trees were cut, is not ad- missible; such consent being a mere license, and requiring a writing to give it validity. And the opinions of witnesses, that such acts were not injurious to the inheritance, and therefore not waste, are inadmissible. McGregor v. Brown, 10 N Y. R. 114. 22 254 LAW OP LANDLORD AND TENANT. [CHAP. IX. for cultivation, he is clearly guilty of waste. And although he may, from the commencement of his term, gradually clear up the woodland and prepare it for cultivation, yet he will not be permit- ted, just before the expiration of his lease, to ciit down timber upon that pretext.! Where land is annexed to a furnace, cutting wood sufficient for the supply of the furnace was held in New Jersey to be no waste ; ^ while in North Carolina it was held waste to cut down light-wood for tar.^ § 354. When the tenant commits waste,, ly felling timber or houses, they still remain the property of the person who is entitled to the inheritance ; for the tenant had them as things annexed to the soil, and it would be absurd that when, by his own act and wrong, he severs them from the land, he should gain a greater pro- perty in them than he had before.* And whether they were felled by the tenant or other person, or blown down by a tempest, the lessor is entitled to them, in rpspect to his general ownership, and because they were his inheritance.^ So also sea-weed, thrown by the sea upon the beach, vests in the owner of the soil as much as the wood, grass, or any other thing appurtenant to the ownership of the soil; though, as between landlord and tenant, the latter, doubtless, would be allowed to make use of it, unless it had been expressly reserved by the lease.^ § 356. Sometimes a clause is inserted in the lease, that a tenant shall have the lands without impeachment of waste; this expression is equivalent to an authority to commit waste, and, at common law, authorized him to cut timber, or open new mines, and convert the produce to his own use.'' But if the words were, without impeach- ment of any action of waste, they only gave the tenant a discharge 1 Kidd V. Dennison, 6 Barbour, E. 9 ; the land assigned to her, and does not ex- Livingston V. Reynolds, 26 Wend. 122 ; ceed the relative proportion of cleared s. c. 2 HiU, 157. land, considered in reference to the whole ^ Den V. ICinney, 2 South. R. 552. tract, she cannot be said to have commit- 8 Perkins v. Coxe, 2 Hay. R. 339. ted waste thereby. Hastings v. Crunkle- The American doctrine, on the subject of ton, 8 Yeates, 261. waste by cutting timber, undoubtedly dif- * Mooers v. Wait, 3 Wend. R. 104 ; fers from the Enghsh, in consequence of Kidd v. Dennison, supra. the differing circumstances of the two ^ Bulkley v. Dolbeare, 7 Conn. R. 232 ; countries. In England, timber is an ob- Liford's Case, 11 Co. 48, b; Bewick v. jeet of extraordinary care, while in the Whitfield, 3 P. Wms. 267 ; ICoxe, R. 72; United States, particularly in former Shult v. Barker, 12 Serg. & Eawle, 272 ; years, it was desirable to get rid of it. It Elliott v. Smith, 2 N. Hamp. R. 430.' was therefore said, that it would be an " Emaus v. TurnbuU, 2 Johns. R. 322. outrage on common sense, to suppose, that ' Pyne v. Dor, 1 Term R. 55 ; Wil- what would be deemed waste in England, liams v. Williams, 15 Ves. R. 425 ; Co. would receive that appellation here : and Lit. 220, a; 11 Co. R. 81, h. that if a tenant in dower clears part of SEC. I.] OP THE COVENANT TO EEPAIR. 255 from the action, but not the property in the thing granted.^ Equity, however, gives a more limited construction to the first clause, and allows the tenant for life those powers only which a prudent tenant in fee ought to exercise. He cannot, therefore, pull down or dilap- idate houses, destroy pleasure-grounds, or prostrate trees planted for shelter.^ But a tenant for life, without impeachment of waste, is liable, on his express covenant, to repair, notwithstanding such a covenant is inconsistent with his estate ; for where a man expressly covenants to do an act, which he would not otherwise be bound by law to perform, public policy requires that his contract should be strictly observed ; and he cannot, in general, be relieved from the responsibility he has imposed on himself by his own deliberate act.^ § 356. Not only is waste prohibited by law, but it calls upon the tenant, in addition, to cultivate the lands in a husband-like manner, conformably to the usual and reasonable custom of the country.* This, however, extends only to the usual course of cultivation, and not to any extraordinary mode of agriculture.^ In this, as in other cases, the parties may, of course, stipulate in what manner, and to what extent, the land shall be cultivated ; but unless such stipula- tion is made, the parties are to be governed by the usual practice and custom of the neighborhood.^ A tenant who has agreed to deliver up all the trees standing in an orchard at the time of the lease, reasonable use and wear only excepted, is not prevented from removmg trees which are decayed and past bearing, from a part of the orchard which was over-stocked.'^ § 357. When a tenant is under an express covena7it to uphold and repair the premises, he is liable to make good all losses, and must even rebuild in case of casualty by fire or otherwise.^ Being an- nexed to the demised property, and forming part of it, this covenant runs with the land, and binds an assignee, although not named.^ 1 lb. ; Vane v. Lord Barnard, 1 Salk. ' Legh v. Hewitt, 4 East, 15 ; Dougl. 161 ; 22 Vin. Abr. 505. 201 ; 2 B. & A. 746. 2 Vane v. Lord Barnard, 2 Vern. 739 ; * Cline v. Black, 4 McCord, K. 431 ; 2 Eq. Cas. Abr. tit. Waste, pi. 8 ; 3 Atk. Ross v. Orerton, 3 Coll. E. 309 ; Pym ;;. B. 215. Blackburn, 3 Ves. R. 38; 4 Camp. 265; 3 Chesterfield v. Bolton, 2 Conn. R. Beach v. Grain, 2 Comst. E. 86. A sub- 626 ; Barker v. Harold, 1 Saund. R. 47. sequent parol promise to pay is void, as * Powley V. Walker, 5 T. R. 373. The without consideration. Speckels v. Sax, remedies for waste, both prerentive and 1 E. D. Smith, R. 253. Otherwise, if compensatory, are discussed in another made upon a new and sufiicient consider. part of our work, commencing at § 686. ation. Post v. Vetter, 2 E. D. Smith, R. 5 Brown v. Crump, 1 Marsh. 567 ; s. c. 248. 6 Taunt. 300. ^ Spencer's Case, 5 Co. R. 16 ; 5 Co. s Doe dem. Jones f. Crouch, 2 Camp. 24, a; Keeling v. Moore, 12 Mod. E. 449. 371. 256 LAW OP LANDLORD AND TENANT. [CHAP. IX. It is also divisible, charging an assignee of part only of the prem- ises ; 1 and the general covenant extends as well to buildings erected hj the tenant, as to those originally demised.^ And if the terms are clearly defined, and the agreement is so distinct that the court can describe the building, a specific performance of this contract will be decreed.^ If a lessee who has erected fixtures, for the pur- pose of trade, upon the demised premises, afterwards takes a new lease, to commence at the expiration of his former one, which new lease contains a covenant to repair, he will be bound to repair those fixtures, unless strong circumstances exist to show that they were not intended to pass, imder the general words of thd second demise ; thoiigh it is doubtful whether any circumstances, outside of the deed, can be alleged to show that they were not intended to pass.* If he covenants to keep the premises in repair, and leave them in the same state as he found them, he is merely required to use his best endeavors to keep them in the same tenantable repair in which he found them, for natural and unavoidable decay is no breach of this covenant; but if he covenants to repair generally, this will impose upon him a liability to uphold the buildings, without regard to accidents or the necessary decay of the old materials.^ Where he covenants to surrender the premises at the expiration of the lease, in the same condition they are in at the date of the lease, natural wear and tear excepted, but without any covenant to repair or rebuild, he is not bound, in case the buildings are destroyed by fire during the continuance of the term, to put up new buildings in the place of those destroyed.^ § 358. Under a general covenant to repair, the tenant is to take care that the tenement does not suffer more than the usual opera- tions of time and nature will effect; biit he is liot bound to go further. He is only to keep an old house as an old house ; he is not obliged to put in new floors, or the like, but 'merely to repair the old ones, although a new floor might he the more substantial way of making the repair.'^ But under a covenant to substantially 1 Congham v. King, Cro. Car. 221. " "Warner v. Hitchins, & Barb. R. 666. ^ Dowse V. Cole, 2 Vent. 126 ; 3 Lev. He is liable to account for such portions 46 ; Skin. 121. of the building as may have been severed s Mosely v. Virgin, 3 Ves. R. 184. by the fire and removed by him. lb. A * Thrasher v. Company, &c., of Lon- clause in the lease exempting Mm from don Water Works, 2 Barn. & Cres. 608 ; liabiUty to restore the premises in case of 4 Dow. & Ry. 62. fii-e does not exempt him from paying 5 Harris v. Goslin, 3 Harr. R. 838 ; rent, in case of their destruction. Beach Phillips V. Stephens, 16 Mass. R. 238 ; v. Farish, 4 Cal. R. 339. Shep. Touch. 169. 7 Per Tindal, C. J., in Harris v. Jones, SEC. I.] OF THE COVENANT TO REPAIR. 267 repair or uphold the house, the tenant is bound to keep up the in- side painting.^ Breaking glass has been held to be a breach of this covenant, so has the leaving a pavement out of repair ; for such things are within the intention of the covenant, and belong to the building.^ Upon the like principle, it has been determined that carrying away the locks and keys of a cupboard, or its shelves, will constitute a breach ; or breaking the wall of a house, for the pur- pose of making a doorway into the adjoining house.^ So, where the plaintiff granted to the defendant a right of way over his land, and covenanted to erect a gate at the terminus, the defendant, on his part, covenanting to make all the necessary repairs to said gate ; it was held that the defendant was bound to replace the gate, the same having been removed by some unknown person.* § 359. With respect to the breach of this covenant, the usual qxiestion is, whether the premises have been kept in substantial repair, as opposed to claims for fancied injuries ; such as a crack in a pane of glass, or the like. And, with a view to a determination of this question, the jury may inquire whether the premises were new or old at the time of the demise, and be regulated in their verdict accordingly.^ If, however, a lessee covenants to support and maintain the brick walls belonging to the premises, and he pulls down a brick wall which divides a front court-yard from another court at the side of the house, it will amount to a breach.^ But an enlargement of windows, opening external doors, and taking down partitions, is not a breach of a covenant to repair and keep in repair a dwelling-house, with all buildings, improvements, and additions, set up or made by the lessee.^ Nor is a tenant bound, under this 1 Mood. & R. 173 ; ib, 334 ; Stanley o. because he found them in that condition. Twogood, 3 Bingh. N". C. 4; Gutteridge Even in this case, however, the extent of V. Munyard, 7 C. & P. 129. These cases the repairs is to be measured by the age establish, that where there is a general and class of the buildings. Payne v. covenant to repair, the age and condition Haine, 16 M. & W. 541. of the house at the commencement of the i Mark v. Noyes, 1 Car. & Pay. 265. tenancy are to be taken into consideration ^ Pyot v. Lady St. John, Cro. Car. in considering whether the covenant has 329 ; 2 Bulst. 102. been broken ; and that a tenant who enters ^ Vickery v. Jackson, 2 Stark. K. upon an old house is not bound to leave it 293. in the same state as if it were anew one. * Beach v. Grain, 2 Comst. R. 86. See also, Mautz o. Goring, 4 Bing. N. C. ^ Stanley v. Twogood, supra; Burdett 451. But where the tenant covenants to v. Withers, 2 Nev. & P. 122. keep the premises, and to deliver them up, ^ Doe dem. Wetherell v. Bird, 6 C. & at the expiration of the tenancy, in good P. 195. repair, order, and condition, he is bound ' Doe dem. Dalton v. Jones, 1 Nev. & to put them into good repair, and is not M. 6 ; 4 B. & Ad. 126. justified in keeping them in bad repair, 22* 258 LAW OF LANDLORD AND TENANT. [CHAP. IX. covenant, to be at the expense of renewing the work in an improved or more durable manner than before .-"^ § 360. In general, a lessee will not be excused by cm act of G-od, from the performance of any express covenant he has entered into : but if he covenants to keep the premises in the same state in which they were when he took them, and trees are blown down, tliis cove- nant is not thereby broken ; for it has, by the act of God, become impossible to keep this part of the coven ant.^ But the case is dif- ferent if he cut the trees himself, for he then breaks the covenant by his own act. There is a difference, also, with respect to build- ings ; for whether these be destroyed by the act of God, by negli- gence, or design, the covenant will still remain binding, and the ten- ant will be guilty of a breach of it by failing to restore them, for this is clearly within his power.^ If he undertakes to keep the house in as good repair as when he took it,/a/r wear and tear excepted, he is not entitled to quit upon its becoming uninhabitable for want of repair during the term, nor is the landlord under any implied obH- gation to make repairs in such case.* Neither will the fact that the act of waste was committed by a stranger form any excuse for the tenant, the law in such case gives him a remedy over, but makes him responsible in the first instance. As where a lessee for years covenanted that the buildings which he should erect should, at the expiration of the term, revert to the lessor " without damages of any kind, except the natural wear of the same," and a building so erected was destroyed by the negligent acts of a third party ; it was held to be waste, for which the tenant was responsible to the lessor, and that the lessee or his assignee might recover in an action against the party guilty of the negligence, the value of the building.^ § 361. When a man covenants to keep buildings in repair during the term, and at the expiration thereof to yield them up in like condition, and he pulls them down, or suffers them to decay, or 1 Soward v. Leggatt, 7 C. & P, 612. 2 Main's Case, 5 Co. E. 21, a; Shep. The term habitable repair, means a state of Touch. 173. Where a tenant undertakes repair reasonably fit for the occupation of to keep the premises in good and sufficient an inhabitant. "Wliere a tenant leases repair, he is entitled to show at the trial, premises out of repair, and agrees to put what the state of the premises was at the them into habitable repair, this imphes that time of the demise. Burdett v. Withers, he is to put them into a better state than 7 A. & E. 136. that in which he foimd them. Belcher v. ^ Brecon Company v. Pritchard, 6 Mcintosh, 8 C. & P. 720. And a tenant Term. R. 750; Style, 162. is still bound to repair, although the agree- * Arden v. PuUen, 10 M. & S. ment, as to the duration of the term, may ^ Cook v. The Champlain Trans. Co. bo void under the statute of frauds. Kich- 1 Denio, E. 91 ; 4 Kent, Com. 77. ardson v. Gifford, 1 A. & E. 52. SEC. I.j OF THE COVENANT TO REPAIR. 259 omits to make necessary repairs, he is immediately guilty of a breach of this covenant, and an action may be maintained against him by the landlord before the term has expired.^ If the covenant had been merely to leave the premises in good repair, it would have been otherwise, for there could have been no breach during his occupa- tion.^ And if he covenants to repair and leave them in as good state as he found them, and then pulls them down, he is not guilty of a breach of the covenant, for he may rebuild +hem before he leaves ; and, therefore, no action will lie against him until the end of the term.^ A covenant to repair forthwith, must receive a rea- sonable construction, and is not limited to any specific time.* If, therefore, a man covenants to keep a house in repair, and it be- comes ruinous by accident, the covenant will not become broken till after a convenient time for its repair has elapsed. And if he engage to repair it before a particular day, and it be rendered impossible, by the act of God, to make the repairs by that day, there is no breach of the covenant, if he repair it as soon as possible thereafter ; but the repairs must be made during the term, for, if the tenant enters for that purpose after the expiration of the term, he is a trespasser.^ Where there was a lease for a year of a meadow, bounded on one side by a river, and the lessee covenanted to sustain and repair the banks, to prevent the water from overflow- ing the meadow, upon pain of forfeiture of a sum of money ; and afterwards, by a sudden and violent flood, the banks were destroyed, the lessee was excused from the penalty, because it was the act of God, which could not be resisted ; but he was held bound to repair the banks in a convenient time, because of his covenant.^ § 362. Where a lease contains a general covenant to keep the premises in repair, with a clause of re-entry, for a breach of cove- nant, and a further covenant that the tenant shall, within a certain time, from notice, being served upon him by the landlord, repair 1 Luxmore v. Eobson, 1 B. & A. 585 ; v. Davis, in English Court of Common Shep. Touch. 173. Pleas, January 15, 1851. 2 ShieSeUn v. Carpenter, 15 Wend. E. * Doe dem. Pitman v. Sutton, 9 Car. & 409. P. 706. 8 Perry v. Brown, 1 B. & P. 403. The * Shep. Touch. 173 ; Compton v. Allen, mere removal and sale by a tenant during Style, 162. the term, of fixtures, which he does not *• Dyer, 33, a; 2 Saund. E. 420, n. (2). immediately replace, but which can be re- Covenant to take down houses within a placed before the end of the term, is not certain term and erect new ones, may be in itself a breach of the covenant to re- comphed with by completely and substan- pair, and uphold the premises, and deliver tially repairing without taking down, them up at the end of the term with all Evelyn v. Eaddish, 7 Taunt. 411. things affixed thereto. Doe dem. Burrell 260 LAW OP LANDLORD AND TENANT. [CHAP. IX. all defects specified by the notice, the first covenant will not, in general, be held to be restrained by the latter.^ And it has been held that a covenant by the lessee to leave the premises in repair, and a covenant that the lessor might direct the lessee to complete the repairs, by giving six months' notice in writing, were distinct and separate covenants, and that the former was not qualified by the latter.^ But where a lessee covenanted to repair the premises at all times, as often as need should require, and, at furthest, within three months after notice, it was held to be one entire cove- nant, the former part of which was qualified by the latter .^ A ten- ant holding over after the expiration of his term, impliedly holds subject to all the covenants in the lease which are applicable to his new situation ; and, therefore, if after the expiration of a written lease, containing a covenant by the lessee to keep the premises in repair, he verbally agrees to continue tenant, paying an additional rent, nothing more being expressed between the parties respecting the terms of the new tenancy, and the premises afterwards become ruinous by accidental fire, he is bound to repair them. And a mere advance in the amount of rent to be paid makes no differ- ence, for the advanced rent incorporates the old terms with the new contract, the parties still being supposed in other respects to have had reference to the old- lease; and there is an implied as- sumpsit raised by the continued holding, though an action would not lie on the covenant.* § 363. The same principle applies to avoid lease, and the tenant is still bound by a covenant to repair, although the agreement under which he holds is void, or contrary to the statute of frauds. Thus, where a lease was granted by a tenant for life under a power, containing a covenant to repair, but not made in accordance with the power, and the lease was assigned to the defendant, who, after the death of the tenant for life, when the lease would determine, continued to pay rent to the remainder-man, for a short period : 1 Eoe dem. Goatly v. Paine, 2 Camp, determine the relative sufficiency of re- 520; 4 B. cSb C. 606 ; 6 Ad. & El. 277. pair. Stanley v. Twogood, 3 B. N. 0. 4. 2 Wood u. Day, 7 Taunt. 646 ; 1 B. Where an old house is demised, it is not Moore, 389. meant by this covenant that the house 3 Horsfall v. Testar, 1 Moore, 89 ; 7 should he restored in an improved state, Taunt. 385. A covenant to keep and or that the consequences of the elements leave in repair is not satisfied by keeping should be averted. Gutteridge v. Mun- the house in substantial repair, according yard, 7 C. & P. 129. to the nature of the building. And the * Digby & Atkinson, 4 Camp. E. 275 ; jury may inquire whether a house were Kimptou v. Eve, 2 Ves. & B. 353 ; Brud- new or old at the time of the demise, to nell v. Roberts, 2 Wils. 143. SEC. I.J OP THE COVENANT TO REPAIR. 261 the premises being left out of repair, the landlord brought an action for damages against such assignee, on an implied assumjjsit to re- pair ; and it was held he was entitled to recover up to the end of the term mentioned in the lease, on the ground that the ten- ant was liable to all the stipulations contained in the leasp ia the same way as a tenant is who holds over after the determination of the lease. But if a breach of the covenant to repair takes place during the continuance of the lease, persons claiming under the lessee, and coming into possession after the determination of the lease, will not be liable on an implied promise, to restore the prem- ises to the same state in which they were at the commencement of the original lease. ^ § 364. Under a general covenant to repair, the lessee's liability is not confined to cases of ordinary and gradual decay, but extends to injuries done to the property by fire, although accidental ; and even if the premises are entirely consumed, he is still bound to repair within a reasonable time.^ And the principle applies to all dam- ages occasioned by a public enemy, or by a mob, flood, or tempest.^ For this reason, and in order to afford some protection to the ten- ant, it is customary to introduce into the covenant to repair, an exception against accidents by fire, tempest, or lightning. As an exception, however, to the general rule, it has been held in Pennsyl- vania, that a tenant was not liable, even under this covenant, for damage done by the British troops while in Philadelphia, during the war of the Revolution.* § 365. We have seen that this is a covenant running with the land, binding upon the assignee of the reversion ; it may also be apportioned among the assignees of different parts of the reversion.^ An equitable assignee is also liable in equity to the lessee to repair all damages which have occurred during the occupation of the for- mer ; ^ and an assignee by way of mortgage is equally liable though 1 Beal V. Saunders, 3 Bingh. 856 ; n. s. "Waterhouse, 2 Saund. K. 420, n. (2) ; Johnson v. Hereford Church-wardens, 6 Chesterfield v. Bolton, Com. 627 ; 2 Chit. Nev. & Man. 106; 4 Ad. & El. 520; 5 608. Scott, 58. Breaking a doorway through ^ Paradine v. Jane, Aleyn, 26 ; 6 Term the wall of the demised premises into the E. ; Phillips v. Stevens, 16 Mass. R. 238 ; adjoining house, and keeping it open for a Bohannons v. Lewis, 3 Monroe, 870. long time, is a breach of covenant to re- * Pollard v. Shaffer, 1 Dall. E. 210. pair. Vickery v. Jackson, 2 Stark. 293. The soundness of this case is questioned. But in a long lease this covenant is not Per Sill, J., in Hitchins v. Warner, 5 broken by the tenant's making alterations. Barb. E. 671. Dalton V. Jones, 4 B. & Ad. 126. ^ Badeley v. Viziers, 4 E. & B. 71. 2 Bullock V. Bommitt, 6 Terra. E. 650 ; ^ Close v. Wilberforce, 1 Beav. 112 ; Phillips V. Stevens, 16 Mass. E. 238 ; Pym 3 ib. 373. V. Blackburn, 3 Yes. 38; Walton v. 262 LAW OP LANDLORD AND TENANT. [CHAP. IX. he never takes possession.^ Until recently, a mere depositary of a lease by way of mortgage, whether he had entered into possession of the premises or not, was compelled to take an actual assignment, and so clothe himself with the legal estate and its consequent lia- bilities ; 2 but the important consequences of this doctrine, particu- larly to the mercantile community, who are in the habit of taking deposits of leases as securities for temporary loans, caused the question to be reviewed, when it was determined, that although the lessor may consider the depositary of the lease its equitable as- signee, yet that he has no equity to compel him to take an assign- ment of the lease, or the depositor to assign it.^ Nor will the court compel an equitable assignee, at the suit of the lessor, to dis- cover whether the lease has been assigned to him for the purpose of forcing him to perform the covenants embraced therein.* § 366. Where there is, besides a covenant to repair, a covenant to insure for a certain sum, and the premises are burned, the lessee's liability to rebuild is not limited to the amount for which he agreed to insure.^ Nor has the tenant any equity to compel his landlord to expend money received from an insurance company in rebuild- ing the demised premises, on their being burnt down, or to restrain the landlord from suing for the rent, until after tlie premises shall have been rebuilt.^ An eviction by elder title will absolve the les- see from a covenant to repair, for the land being gone, the covenant is annulled.' But an eviction out of part of the thing demised is no defence to an action for a breach of this covenant, unless it be shown, that the lessee has been evicted from that part of the land where the repairs were to be done, and so prevented from fulfilling his covenant.^ The general covenant of the lessee to repair, ex- tends to all buildings erected during the term, as well as to the buildings demised ; if, therefore, upon a demise of three houses with such a covenant, the lessee builds a fourth, he will be bound to repair this also.^ § 367. As between co-tenants, both equally bound to repair, or to 1 PUkington v. Shaler, 2 Vera. R. 374 ; " Leeds v. Cheetham, 1 Simons, R. s. c. Eq. Ca. Ab. 47. 146. 2 Lucas V. Commerford, 1 Ves. Jr. T Andrews v. Needham, Nov. 75 ; Cro. 235; s. c. 3 Bro. C. C. 166, cited 7 Sim. Eliz. 6S6. R. 149. s Carrel v. Read, Cro. Eliz. 374; Snel- " Moores v. Cheat, 8 Sim. 508 ; 1 Keen, ling v. Stagg, Bull. N. P. 165 ; Morrison 435. V. Chadwick, 7 C. B. 266. * Sparks v. Smith, 2 Vem. 275; b. c. ^ Douse v. Eajrle, 3 Lev. 264; s. o. 2 1 Eq. Ca. Ab. 47. Vent. 126. s Digby V. Atkinson, 4 Camp. R. 275. SEC. I.] OP THE COVENANT TO REPAIR. 263 support a partition wall, or fence, the rule is, that either party, if the other refuses to join him in making a necessary repair, may, after giving reasonable notice (in New York it is a month's notice), proceed to do what is necessary to be done, and charge his co- tenant with his proportion of the expense. And, if there had once been a division-fence between them, which one party has improper- ly removed, without giving three months' notice to the other, of his intention to let the land lie open, as required by the statute, he is liable not only for his proportion of the expense of making a new fence, but also to all damages sustained by the other party, in con- sequence of such removal.^ But as between a tenant and his land- lord, it has been decided, that if a tenant under a covenant to repair pulls down a party-wall (being in a ruinous condition), and rebuilds it, intending to do so at the joint expense of himself and the occupant of the adjoining house, to whom he gave the notice required by statute, but without the landlord's authority, he can- not maintain an action against his landlord for a moiety of the expense of rebuilding such wall.^ The estate of a tenant at will being so imcertain, the law imposes no obligation upon him for di- lapidations ; the landlord has, therefore, no remedy against him except for wilful waste, in which case, as we have seen, he forfeits his interest in the estate. He is not bound to repair, and takes no charge upon himself, but to occupy and pay rent.^ § 368. The usual mode of showing the damages sustained by a breach of the covenant to repair, where the term is at end, is to prove, by surveyors or builders, the sum it would take to put the premises into that state of repair in which the defendant ought to have kept them, according to the terms of his covenant.* And the jury, in such a case, may allow the landlord not only the actual expense of the repairs, but also some compensation for the loss of the use of the premises, whilst they were undergoing repair.^ But where the tenancy is still subsisting, and there is yet a considerable portion of the term remaining, the damages must be estimated, not by considering what it would cost to put the premises into proper repair, biit what damage the present state of want of repair is to the 1 3 Kent, Com. 352; Richardson v. ^ Wood v. Pope, 1 Bing. N. P. 467; McDougal, 11 "Wend. E. 46. s. c. 6 C. & P. 782. Money expended by 2 Pizey V. Eogers, 1 Ey. & Mo. 357. a lessee in repairs may be recovered 8 Countess of Salop v. Crompton, Cro. against a sub-lessee, who is bound to re- Eliz. 748, 777 ; Co. Lit. 71. pair. Cottey v. Streetan, 2 B. & C. 273. * Penley v. Watts, 7 M. & W. 601. 264 LAW OP LANDLORD AND TENANT. [CHAP. IX. reversion ; the former could not be a correct criterion, because the landlord, if he recovered as damages the sum necessary to put the premises in repair, is not bound to lay out any portion of it in repairing them.^ And where the lessor was bound by covenant to repair " the external parts of a demised house," which was damaged in consequence of the house adjoining to it being pulled down and the party-wall giving way, the jury gave the plaintiff, as damages, not only the sum he laid out in building the party-wall, the value of certain damage done by the wall giving way, the cost of paint- ing and papering, rendered necessary by the rebuilding of the wall, cost of replacing fixtures, and the architect's charges, but also the rent he paid for other premises whilst the wall was rebuilding, the costs of alterations, necessary to enable him to carry on his busi- ness in these latter premises, and the cost of restoring those prem- ises to their original state after the wall was rebuilt. The court, however, held that the plaintiff was not entitled to these three lat- ter items of damage ; because, if the defendant had rebuilt the wall, he would not have been bound to find other premises for the plain- tiff during the time the wall was rebuilding.^ SECTION II. OP THE COVENANT TO PAT RENT. § 369. Rent is a certain profit, either in money, provisions, chat- tels, or labor, issuing yearly out of lands and tenements, in return for their use. Some of its properties, at common law, are certain- 1 Doe d. Trustees, &c., v. Rowlands, 9 costs of defending it, might be claimed as Car. & P. 734 ; Smith v. Peat, 9 Exch. special damage in an action by the lessee, 161 ; Turner v. Lamb, 14 M. & W. 412. against the under-lessee, for the breach of From the last of these cases it would his covenant to repair. The correctness seem, the amount of damages depends on of this decision, however, was doubted in the length of the term, which is still un- Penley v. Watts, 7 M. & W. 601, so far as expired. relates to the costs of the first action, and ^ Green v. Eales, 11 Law, J. 63. was overruled by the case of Walker v. Another question which relates to the Hatton, 10 M. & W. 249, where it was damages recoverable under a covenant to held that the costs occasioned by the de- repair, arises where there is a lease and fence of the first action were not recover- an under-lease, both of which contain a able against the under-lessee, as they were covenant to repair, and the superior land- not necessarily caused by the breach of lord has sued the lessee on his covenant, covenant on his part. And see Smith v. In Neale v. WyUie, 3 B. & C. 538, it was Howell, 6 Exch. 730; Pennett v. Wood- held that in such case the damages and burn, 7 C. & P. 117; 11 A. & E. 28; costs recovered in that action and also the Blyth v. Smith, 6 M. & G. 405. SEC. II.J OF THE COVENANT TO PAY RENT. 265 ty, or the power of being reduced to a certainty, by either party ; and that it issue yearly, for althougii it need not issue out of eacli successive year, yet, as it is to be produced out of tlie profits of lands and tenements, as a compensation for their enjoyment, it must be renewed yearly, because such profits arise and are renewed annually. It must, also, issue out of the thing demised, and not be part of the thing itself ; and must, necessarily, issue out of lands and tenements corporeal merely, for out of such only can the lessor distrain.^ § 370. There are, at common-law, three kinds of rent : rent- service, rent-charge, and rent-seeJc. Rent-service was so called, be- cause it had some corporeal service incident to it ; as if a tenant held his lands by fealty and ten shillings rent, or by the service of ploughing the lord's land and five shillings rent ; these pecuniary rents being connected with personal services were, therefore, called rentservice and were always annexed to and connected with a re- versionary estate remaining in the grantor. To this species of rent the right of distress was incident, so long as the reversion remained in the landlord. A ren<>charge was where the proprietor pai-ted with his land, but, by the grant, reserved to himself a certain rent, with a clause authorizing its collection by distress, and it was called a rentcharge because the lands were charged with such distress, only by force of the deed, and not of common right. While a renl^seek, or barren rent was nothing more than a rent reserved by deed, without any right of distress, and which could only be collected by an ordinary action of debt.^ We have, also, another species of rent called a fee-farm rent, which is, in fact, a renl^charge, issuing out of an estate, which has been granted in fee. Of this description are the manor leases in New York. In effect, it is a letting of lands to farm in fee-simple, instead of the usual methods for life or years ; a perpetual rent-charge being created by the same deed with which the fee is granted.^ The difference between these various species of rent, so far, at least, as regards the remedy for their recovery, is now virtually abolished in England, as' it was 1 Co. Lit. 47, a ; 142, a. freely discussed, by the Hon. D. D. Bar- 2 People V. Haskins, 7 Wend. 463 ; nard, in the December number of the Cuthbert v. Kuhn, 3 Whart. 365 ; Cornell American Review for 1845. It is a calm, V. Lamb, 2 Cow. R. 652 ; Litt. § 217. earnest, and able review of the whole sub- 3 The popular objections to many of ject, and had an extensive influence in these leases have been fully examined, quieting the public agitation which then and the anti-rent movement in New York pervaded the State of New York. 23 266 LAW OP LANDLORD AND TENANT. [CHAP. IS. in New York, even previous to the abolition of disti-ess for rent ; since the statutes of both countries authorized all persons to dis- train for any certain services, or certain rent, reserved out of any lands or tenements, which shall not be paid or rendered when due.^ § 371. Besides the reservation of rent in the demise, a special covenant for its payment is usually inserted : ^ but if there is no agreement between the parties, the law will imply a promise on the part of a tenant, to pay the landlord, for his permission to occupy the premises, as much as they are reasonably worth ; an obligation which is incumbent iipon an occupant so long as he continues to hold, without obstruction on the part of the landlord. But although a lessee, during his occupation, or an assignee, while his enjoyment lasts, may, without any covenant, be compelled to pay rent ; ^ yet, in the absence of this covenant, he may, by assigning over, discharge himself of all future responsibility.* And, as the premises might be transferred to a beggar ,s an insolvent,^ or person leaving the country (provided the assignment be executed before his departure), the lessor would, to a certain extent, lose his secur- ity for rent,' and the express covenant, therefore, possesses an obvious advantage over the implied one. For these reasons, a covenant to pay rent is generally contained in every indenture of lease. And as the liability of a lessee on this covenant, will not be in any manner impaired or affected, by his act of assigning over the lease, but remains valid against him and his executors (having assets), until the end of the lease ; ^ this covenant, in the event of a tenant's alienation, aifords the landlord a double claim for the pay- ment of his rent ; the assignee being chargeable in consequence of 1 4 Geo. II. 0. 28 ; 1 E. S. 747, § 18 ; 3 ^ Taylor v. Shum, 1 Bos. & P. 21. Kent, Com. 461, n. b. e Onslow v. Come, 2 Mod. E. 380. 2 Sometimes a provision is inserted in "> Dalston v. Eeeve, Ld. Bay. 77 ; a lease, whereby the lessee mortgages all "Webb v. Russell, 3 Term E. 402 ; Iggul- his chattels upon the demised premises, as den v. May, 9 Ves. E. 330. security for the rent. This is held good « Pitcher v. Tovey, 1 Salk. E. 81 ; as a mortgage of the property on the BucMand v. Hall, 8 Ves. E. 95. The premises at the time of making the lease ; obhgation of a lessee is primary and abso- but such a provision in respect to property lute, and that of a guarantor secondai-y which might thereafter be brought upon and conditional ; and these obligations are the premises is void in New York, as separate and not joint, and will not sup- against the policy of the act to abolish dis- port a joint action by the lessor against tress for rent. Per Denio, J., in Van the lessee and the guarantor, when in Heusen v. EadcliflF, 16 N. Y. Eep. 580. separate instruments. Tibbetts v. Percy, 8 Ante, § 154 ; post, § 442-447. 24 Barb. E. 89. * 1 Mod. E. 71 ; Holt, 78 ; 12 Mod. E. 28; 1 Vern. 166; 1 V. & B. 11. SEC. II.] OP THE COVENANT TO PAY RENT. 267 his privity of estate, and the original lessee still continuing bound in respect to his contract. This is a covenant running with the laud, binding on an assignee of the lease, without his being spe- cially named,^ and, in the case of an indenture executed by the lessee, will arise upon the ordinary words of reservation, yielding and paying? It is held, however, that the words, " subject to pay- ment of the rent reserved, &c.," in an assignment of a lease, do not amount to a covenant, and give no right of action against the as- signee, for they are words of qualification and not of contract.^ § 372. When the relation of landlord and tenant has been once established, the tenant cannot resist a demand of rent, unless he shows that he was evicted, or otherwise legally entitled to quit the possession, and has done so in an unqualified manner ; or that the landlord has accepted another person as tenant in his stead.* And no accident to the demised property, or misfortune to the lessee, will relieve him from his express covenant, so long as this relation continues. In an ancient case, which occurred during the civil wars of England, the tenant objected, as a reason why he should not pay rent, that Prince Rupert, an alien born, with a hostile army, had driven him out of possession of the premises ; but the court deter- mined, that, though the whole army had been alien enemies, he was still bound to pay his rent, because he had expressly covenanted.^ So if the land be surrounded or gained upon by the sea, or in any other way rendered useless, still, as the lessee is to have the advan- tage of all profits, he must run the hazard of casual losses, and will be liable for the whole rent.^ And though the premises are en- tirely destroyed by unavoidable accidents of fire, flood, or tempest,'' 1 Main v. Feathers, 21 Barb. R. 646; ^ Wolyeridge v. Steward in Er. 3 8 Seld. R. 506 ; 2 Kern. 296. An assign- Moore & Scott, 561 ; 3 Tyr. 637 ; 1 ment by the lessor, of the rent of lease- Cromp. & Mees. 644. hold premises, creates such a privity of * Ward v. Mason, 9 Price, R. 294; estate between the assignee and the lessee. Cleaves ;;. WiUoughby, 7 Hill (N. Y.), R. that the former^may maintain a suit in his 83. own name for the rent, which accrues and ^ Paradine v. Jane, Aleyn, 26 ; Wag- becomes payable, while such privity of ner v. White, 4 Har. & J. 564. It has estate exists. Childs v. Clark, 3 Barb, been held, however, in South CaroUna, C]i. 52. that where a tenant has been dispossessed ^ Holford V. Hatch, 1 Dougl. 183 ; by an enemy, he ought to pay rent only Vyvyan v. Arthur, 1 B. & Cress. 416. for the time he peaceably enjoyed, and An annual rent reserved by deed, upon a not for the time he was prevented by the grant in fee, is held, in New York, to be casualties of war. Bayley v. Lawrence, 1 valid as a rent-charge ; and is a covenant Bay, R. 499. running with the land, binding upon the " Dyer, 56, a ; Aleyn, 28 ; 1 Rol. Abr. heir or assignee, independent of any 286, 1. 5. tenure or reversion. Van Rensselaer v. ' Hallett v. Wylie, 3 Johns. R. 44; Hays 19 N Y. R. 68. Fowler v. Bott, 6 Mass. R. 63; Ld. Ray. 268 LAW OP LANDLOED AND TENANT. [CHAP. IX. the tenant is still liable to pay rent under his express covenant, not- withstanding their ruinous condition.^ § 873. Contracts implied by operation of law admit of a more liberal construction, and may be moulded according to the dictates of reason and justice ; but express covenants are to be construed strictly, and the person contracting not only assumes to do the thing stipulated, but takes on himself all risk of performance.^ An exception of casualties by fire, introduced into the covenant to repair, will not change the case, since the exception has no relation to the covenant to pay rent.^ According to the strictness of the ancient law, a tenant could not, in a suit for rent, set up in defence that the premises had become uninhabitable, or that the landlord had broken his covenant to repair ; because the amount of damages sustained by the tenant being uncertain, could only be made the subject of a cross-action, and was, therefore, incapable of being set off against the demand for rent, which iw a certain fixed amount.* But this doctrine has been recently questioned in England,^ and is entirely repudiated in some of the United States. Thus, in Penn- sylvania it is held, that covenants for rents are like other cove- nants ; and, where the plaintiff has not complied with his precedent condition, he cannot compel payment of its consideration.^ And, in New York, it was said by Chief Justice Nelson, " That it was not to be denied, but that if the tenant, in such a case, had been entitled to damages for not repairing, they might have been set up, by way of reducing or extinguishing the rent. " "' 1477 ; 1 Term R. 310 ; 3 Swanst. B, 685. len, 10 M. & W. 321 ; Harrison v. Xord In Ripley v. Wightman, 4 McCord, 447, it North, 1 Ch. Cas. 84 ; Dyer, 56, a. was held, that, where a hurricane ren- f Warren v. Rowen, 3 Conn. R. 381 dered a house untenantable, this was a Bohannon v. Lewis, 3 Monroe, R. 372. good defence to an action for rent. But " Belfour v. Weston, 1 Term R. 310 this, as well as the South Carolina case, Pindar v. Ainsley, ih. 212 ; 710. are evidently exceptions to the general * Watts v. CoflBn, 11 Johns. R. 495 , rule of law, that when a man takes a Weigall ;;. Waters, 6 Term R. 488. In charge upon himself, by his own special an action on the lessee's covenant to pay agreement, he is still liable in damages re- rent, the lessee cannot set off liis claim on suiting from a non-performance, although the lessor's covenant to pay him for im- its performance should become impossible, provements at the end of the term. Tut- It is of course otherwise, where the law tie v. Tompkins, 2 Wend. R. 407. The creates a duty, or imphes a UabiUty, for subject of a set-off to demands for rent there the party is discharged from the will be found discussed in those subse- obhgation, if performance becomes impos- quent parts of the work which treat of sible ; nor would he, in such case, be actions for rent. § 630, &c. bound to pay rent, if he had no beneficial ^ Ryan & M. 268 ; 7 D. & R. 117 • 1 enjoyment of the premises. M. & R. 112. ' 1 Monk V. Cooper, Str. 768 ; 18 Ves. « Tairman v. Fluck, 5 Watts, 517. 115 ; Hare v. Graves, Anstr. 687 ; Izon v. ' Westlake v. Degxaw, 25 Wend R Gorton, 5 Bing. N. C. 501 ; Arden v. Pul- 672; Reab v.yMcAUster, 8 Wend. R. 109. SEC. II.] OP THE COVENANT TO PAY BENT. 269 § 374. It may now be considered a well-settled principle, that a defendant need not resort to a cross-action on the plaintiff's con- tract of indemnity in any case, but may set up his damages, by way of extinguishing or reducing tlie plaintiff's demand. When the demands of both parties issue out of the same contract or transaction, tlie defendant is allowed to recouped although the damages on both sides are unliquidated ; but he can set off only where the demands of both parties are liquidated, or capable of being ascertained by calculation. It was formerly supposed that there could only be a recoupment where some fraud was imputable to the plaintiff, in relation to the contract on which the action was founded ; but the doctrine is now applied to cases where the defend- ant imputes no fraud, and only complains that there has been a breach of contract on the part of the plaintiff. And, for the pur- pose of avoiding circuity, or mtiltiplicity of action, and doing complete justice to both parties, they are allowed — and compelled if the defendant so elect — to adjust all their claims growing out of the same contract in one action. The defendant, however, has his election, whether he will set up his claim in answer to the plaintiff's demand, or resort to a cross action. But whatever may be the amount of his damages, he can only set them up, if uncer- tain, by way of abatement, either in whole or in part, of the plain- tiff's demand ; he cannot, as in case of a set-off, go beyond that, and have a balance certified in his favor. And if a plaintiff sues on one part of a contract, consisting of mutual stipulations made at the same time, and relating to the same siibject matter, the defendant may recoup his damages arising from the breach of another part ; and this, whether the different parts be contained in one instrument or in several, or where one part is in writing and the other verbal, or whether the damages are liquidated or not.^ § 375. That a tenant is boiind to continue the payment of rent after the destruction of the tenement by fire or other external vio- lence, and has no relief against an express covenant to pay rent, is In an action by the landlord for rent, a reason to withhold. Ires v. Van Epps, 22 breach of his covenant to improve or re- Wend. R. 155. pair, may be set up by the tenant as a ^ Betterman ■;. Pierce, 3 Hill (N. T.), counter-claim, but it constitutes no abso- R. 171 ; Ives v. Van Epps, supra ; Van lute bar to the demand. Kelsey v. "Ward, Epps v. Harrison, 5 Hill, 63 ; Barber v. 16 Ab. Pr. B. 98. Rose, ib. 76 ; Whitbeck v. Skinner, 7 ib. 1 Recoupe, to keep back something that 53 ; Nichols v. Dusenbury, 2 Comst. R. is due, but which there is an equitable 283 ; Mayor of N. Y. v. Mabie, 13 K Y. R. 151. 23* 270 LAW OF LANDLORD AND TENANT. [chap. IX. a proposition generally true, in every case where he has protected himself by a saving clause in the lease ; or the lessor has not cove- nanted to rebuild, and failed to perform his covenant.^ Mr. Chan- cellor Walworth concludes an elegant and learned opinion, in a case which arose in New York, by stating it to be well settled in that State, that a lessee has no relief under those circumstances, either at law or in equity. In this case, indeed, there was an agreement between the lessee and the agent of the lessor, tliat the rent should cease if the building should be casually destroyed, and that a stipulation to that effect should be inserted in the lease ; but this stipulation was inadvertently omitted by the negligence of the person employed to prepare the lease, and the premises were after- wards accidentally burned ; the lessor was perpetually enjoined from prosecuting any suit, or proceeding for the recovery of rent which accrued subsequent to the destruction of the premises ; and the lease itself was ordered to be given up and cancelled.^ But 1 Gates V. Green, 4 Paige, R. 355 ; "Welles V. Castles, 3 Gray, E. 323 ; Gibson V. Perry, 29 Miss. E. 245; Proeter v. Keith, 12 Kentucky, E. 252; Hollzapffel V. Baker, 18 Ves. E. 415 ; 4 Taunt. E. 45 ; 1 Sim. 146 ; Lamott v. Stenet, 1 Har. & Johns. 42 ; Pliilips v. Stevens, 16 Mass. E. 240 ; Howard v. DooUttle, 3 Duer, E. 464. A lessee, however, is not liable for rent, where the premises have been de- stroyed, after the execution of the lease, but before the commencement of the term, and before he has taken possession ; for the delivery of possession is necessary to estabhsh the landlord's right to collect rent. Wood v. Hubbell, 5 Barb. E. 601 ; s. c. 10 N. Y. E. 479. 2 Gates V. Green, supra. In this case, the learned Chancellor considers it to be a principle of natural law, that a tenant who rents a house, or other tenement, for a short period, and with a view to no other benefit except that which may be derived from its actual use, should not be com- pelled to pay rent any longer than the tenement is capable of being used. By the law of Scotland, upon the hire of property, a loss or injury to such property which is not caused by the fault or negli- gence of the hirer, falls on the owner; and the lessee is entitled to an abatement I of the rent, proportioned to any partial destruction of the subject. The Napoleon Code, art. 1722, also declares, that if the thing hired is destroyed by fortuitous events, during the continuance of the lease, the contract of hiring is rescinded ; but if it be only destroyed in part, the lessee may, according to circumstances, demand either a diminution of the price, or the rescinding of the lease itself. The same provision, substantially, is found in the Code of Louisiana, art. 2667. The learned commentator on the law of natme and of nations (Puffendorf ) also considers this a plain principle of natural law ; and he refers to a law of Sesostris, an Egyptian king, that if the violence of the river should wash away a part of the land, the tenant should be proportionably abated in his rent. The same principle has found its way as far north as Newfoundland; where,. by the custom of that country, the tenant of a building may surrender his lease, and be excused from the further payment of rent, in case of a casual de- struction of the building by fire. And Eutherford, in his lectures on natural law, makes a very sensible distinction between a casualty which destroys the value of the use of the property, which loss naturally falls on the lessee, and one which destroys the property itself, of which the lessee has hired the use ; in which latter case he holds, that the lessee is excused from the payment of further rent. Many cases in the reports show that some of the English Chancellors struggled hard to introduce this principle of natural law into the ad- ministration of justice in their courts. Brown v. Quilter, Amb. 619; Steel v. Wright, 1 Term E. 708. A contrary prin- ciple, however, finally prevailed in the Equity Courts of England, as well as in the courts of law ; and it must now be considered as settled law, in this State, SEC. II.] OF THE COVENANT TO PAY RENT. 271 subsequent legislation in New York has, as before intimated, modi- fied tliis rule of law by providing that a tenant may quit and sur- render any building in his occupation, which, without his fault or neglect, shall be destroyed, or so much injured by the elements, or any other cause, as to become untenantable and unfit for occupa- tion ; and that he shall not be liable to pay rent, after such destruc- tion or injury.^ § 376. Every tenant, therefore, should provide in his lease for a suspension of the rent, during such time as the premises remain uninhabitable by reason of accidental fire, or other casualty. But a provision in a lease, that the rent shall cease if the premises become unmhabitable by fire or other casualty, does not extend to the case of a building in the city of New York which becomes untenantable in consequence of the greater portion of it being taken down, to conform to an order of the corporation for the widening of the street on which it is situated.^ At common law, however, a lessee, who is under a covenant to pay rent and repair, with an express exception on his part of all casualties by fire or ternpest, is liable to pay rent upon his covenant, although the prem- ises are burnt down and not rebuilt by the lessor, after he is notified of the Etccident and required to rebuild ; for, whatever was the default of the lessor in not rebuilding, he is liable for damages to the lessee ; and, although it may be a hard case, yet the lessee must, at all events, perform his covenant, by which he was ex- pressly bound to pay rent during the term.^ § 377. But it is to be observed, that all such cases depend upon the express agreement of the parties ; the general rule of law being, that, when the law creates a duty or charge, and the party is disabled from performing it, without his fault, and he has no remedy over against some other person, the law will excuse him ; but when a party, by his own contract, creates a duty or charge upon himself, he is boiind to make it good, notwithstanding any that a lessee of premises which are burned, where a lessor is bound to repair, his has no relief against an express covenant omission to do so will not, where the rent to pay the rent, either at law or in equity; is sufficient to enable the tenant to make unless he has protected himself by a them, and deduct his expenditure from stipulation in the lease, or the landlord the rent, authorize a rescission of the lease, has covenanted to rebuild. or an action for damages. Scudder v. 1 Laws of New York, 1860, p. 592. Paulding, 4 Rob. La. R. 428. What is such an injury to the premises as ^ Mills v. Baer's Executors, 24 Wend, will authorize a surrender of possession R. 454. under the act. See Fash v. Kavanagh, ^ Paradine v. Jane, Aleyn, 26 ; Chester- 24 How. Pr. R. 347. And see Walls v. field v. Bolton, Com. R. 627 ; BuUock w. ~ Hinds, 4 Gray, R. 256. In Louisiana, Dommitt, 6 Term R. 650. 272 LAW OF LANDLORD AND TENANT. [CHAP. IX. accident or inevitable necessity ; because lie might have provided against it by his own contract, but did not think proper to do so.^ And, perhaps, there is as much equity, that the loss of rent should, in such case, fall upon the lessee, as upon the lessor, since the ten- ant has expressly agreed to pay it without reserve, and the landlord must bear the loss of the property destroyed. Besides, fires often occur by the carelessness of the tenant, and the obligation to pay rent after the destruction of the premises, tends to increase a reasonable and necessary vigilance on his part. § 378. The quiet enjoyment of the premises without any moles- tation on the part of the landlord, is an implied condition on which the tenant is bound to pay rent.^ Rent is something given by way of retribution to the lessor for the use of the land ; and, conse- quently, the landlord's claim for rent depends upon this, that the land is possessed and enjoyed by the tenant during the term speci- fied in his contract ; for the tenant ought not to make a return for a thing which he has not. If, therefore, the tenant be at any time deprived of the premises by the landlord's agency, the obligation to pay rent ceases, because his obligation has force only from the con- sideration, which is the enjoyment of the premises.^ Prom this principle, it also follows that if the land be recovered by a thu-d person by a title superior to that of the lessor, the tenant is dis- charged from the payment of rent, after eviction by such recovery. If part only of the land is recovered, such an eviction is a dis- charge of so much of the rent as is in proportion to the value of the land evicted.* But if the lessor himself wrongfully deprives 1 Beale v. Thompson, 3 Bos. & Pul. on the demised premises, is not an evic- 420 ; ante, § 372. tion, but a trespass only, for which tlie 2 Kent is due when it depends alone on tenant's remedy is an action of assault, the will of the hirer or lessee to enjoy the Vatel v. Herner, 1 Hilt. R. 149. Nor does thing hired, or when he has not been pre- it amount to an eviction that the landlord vented from enjoying it by the lessor, altered the rooms of the house, so as to Tio V. Vance, 6 La. R. 128. make them somewhat narrower, the ten- " Pendleton v. Dyett, 4 Cow. E. 58 ; ant remaining in possession. Campbell v. Same case in Error, 8 Cow. R. 727 ; Pos- Shields, 11 How. Pr. R. 565. So of the ton V. Jones, 2 Iredell, R. 350. An evic- landlord's posting a bill on the house, tion in fact or in effect, which renders the Ogilvie v. Hull, 5 Hill, R. 52. And of his premises useless, will prevent a recovery proceeding with reasonable diligence to of rent. HaUigan v. Wade, 21 111. E. repair the premises. Kellenberger v. 470. The omission by a lessor to make Foresman, 13 Ind. R. 475. Although the repairs according to liis agreement will rent will be suspended during the time not release the lessee from the payment the tenant is necessarily absent, while the of rent. The remedy of the lessee in repairs are going on. Pontalba u. Domin- such case is by action against tlie lessor, gon, 6 La. R. 123. upon the covenant to repair. Tibbits v. * Lansing v. Van Alstyne, 2 Wend. E. Percy, 24 Barb. R. 39. The landlord's 561; Stevenson v. Lambard, 2 East, R. interference with the person of the tenant 576 ; Hunt v. Cope, Cowp. 242. An evic- SBC. II.] OP THE COVENANT TO PAT EENT. 273 the tenant of the whole or any part of the premises, the tenant is discharged from the payment of the whole rent until the possession is restored.^ And the reason why there should be no apportion- ment of the rent in the latter case is, that it is done by the wrong- ful act of the landlord himself, and no man should be encouraged to disturb a tenant in the possession of that, which, by the policy of the feudal law, he ought to protect and defend.^ While the reason for the exception to the rule, where part is recovered by a title paramount to that of the lessor, seems to be, that in this case the landlord is not so far in fault as that he should be deprived of some return for that part of the premises which remains in the tenant's possession.^ § 379. Upon the principle that a tenant shall not be required to pay rent, even for the part of the premises which he retains, if he has been evicted from the other part by the landlord, it has been held, that, if a landlord, without the consent of his tenant, uses privileges appurtenant to the premises, and which are not expressly reserved in the lease, he is not entitled to collect rent.* But where a landlord does acts, merely tending to diminish the beneficial enjoyment of the premises, and the tenant continues to occupy tion by title paramount from an undivided accrued. Selby v. Browne, 53 L. & Eq. portion of the premises, is no bar to an E. 620 ; 7 Q. B. 620. action for rent, for it may be apportioned. ^ Lawrence v. Prench, 25 Wend. 443 ; Lansing v. Van Alstyne, supra. Nor is Ludwell w. Newman, 6 Tenn. 458 ; 2 Brod. the act of the State, in appropriating a & Bing. 680. portion of the demised property, under * Briggs v. Hale, 4 Leigh, R. 484 ; its right of eminent domain, such a bar. Christopher v. Austin, 1 Kern. R. 216 ; Folts V. Huntley, 7 Wend. R. 210. Nor Shumway v. Collins, 6 Gray, 227 ; Neale the removal by the city authorities of a v. Mackenzie, 2 Crom. M. & R. 84; s. c. stand for the sale of goods, from the side- 1 Gale, 119 ; 1 Mees. & W. 747 ; Blair v. walk of the street in front of the store, Claxton, 18 N. Y. E. 529 ; Vaughan v. which, together with the stand, had been Blanchard, 1 Yeates, R. 175 ; Grifllth v. rented to defendant. McLaren v. Spald- Hodges, 1 C. & P. 419. An interruption ing, 2 Cal. R. 510. Nor a restriction upon of the enjoyment of the privilege con- the use of some portion of the leased ferred by the lease, by physical means property by a city ordinance. Nicholls adopted by the landlord, constitutes an V. Byrne, 6 La. R. 110. eviction and suspends the rent, as well as 1 Graham v. Anderson, 3 Harr. R. the remedy of the lessor for t!ie recovery 364 ; Bennet v. Bittle, 4 Rawle, E. 339 ; of possession. Peck v. Hiler, 24 Barb. Dalston v. Reeve, 1 Ld. Eaym. 77 ; Jor- R. 178. Tearing down a partition which dan V. Twells, Ca. Temp. Hardw. 171 ; separated the entrance to the tenant's Walker's Case, 3 Co. 22 ; Lloyd v. Tomp- rooms from an adjoining grog-shop, so as kins, 1 Term R. 671 ; 1 Saund. R. 202- to compel him to pass through the latter 204, n. 2. Lewis v. Payne, 4 Wend. R. in order to reach his own room, is Such 423 ; Chatterton v. Fox, 5 Duer, R. 64 ; an interference as authorizes him to leave. 15 Mass. R. 268 ; Day v. Watson, 8 Mich. Rogers v. Ostram, 35 Barb. R. 523. The R. 535. refusal of a landlord occupying premises' 2 Lewis V. Payne, suj>ra ; Etheridge v. in conjunction with his tenant, to permit? Osborne, 12 Wend. E. 529 ; Co. Lit. 148, an under-tenant to occupy the memises, is b. An eviction by a paramount title has an eviction. EandaU v. Albilrtis, 1 Hill, no effect upon the recovery of rent already R. 283 ; 25 Wend. E. 443. So notice to 274 LAW OP LANDLORD AND TENANT. [CHAP. IX. them, the obligation to pay rent continues.^ So where he prevented persons from applying to the tenant to underlet the premises, by offering to lease, and advertising them for that purpose, it was held to be no bar to an action for rent, though the premises remained unoccupied.^ Nor will an eviction, from either the whole or part of the demised premises, have any effect upon rent due, at the time of the eviction, for the landlord is still entitled to collect whatever rent has accrued before the tenant actually quit the possession.^ So, if the rent is payable quarterly in advance, an eviction during the quarter, but after the rent becomes due, does not bar an action for the rent ; the most an evicted tenant can equitably claim, under these circumstances, is a deduction for so much of the quarter as elapses after his eviction.* § 380. In order to produce an eviction, it is not necessary there should be an acttial physical expulsion, for the landlord may do many acts tending to diminish the enjoyment of the premises, be- sides an actual expulsion, which will amount to an eviction in law, and exonerate the tenant from the payment of rent. For, as we have said, a tenant is required to pay rent only for the beneficial enjoyment of the premises, unmolested in any way by the land- lord ; if, therefore, he should erect a nuisance so near the premises as to deprive the tenant of the use of them, by driving him away from them, it amounts to a constructive eviction, and no rent can be recovered. And where the lessor was guilty of habitually bring- quit by a landlord to an under-tenant, Luckey v. Trautzkee, 1 E. D. Smith, E. during the continuance of the tenancy, 47 ; and see Lansing v. Alstyne, 2 Wend, upon which tlie under-tenant acts, is an E. 563, note. eviction as to the premises occupied by ^ Kesler v. McConachy, 1 Eawle, E. the under-tenant. Burn v. Phelps, 1 335; Boynton v. Bobbitt, 2 Vent. 68; Stark. E. 94. And in such case the evic- Stokes v. Cooper, 4 Camp. E. 514 ; Neale tion may be pleaded to the whole demand v. Mackenzie, 2 Cr. M. & E. 84 ; Fitch- for rent. But if, during the tenancy, the burg Man. Co. v. Melven, 15 Mass. E. tenant has abandoned the premises, and 268 ; Edgerton v. Page, supra ; and see the landlord hghts fires in the rooms, 1 Saund. E. 204, n. 2 ; McKeon v. Whit- and makes use of such fires, he will not ney, 3 Den. E. 452. Where a landlord is thereby lose his right to rent. Griffith v. made a party to the foreclosure of a mort- Hodges, supra. gage upon premises, which the decree 1 Edgerton v. Page, 20 N. Y. E. 281 ; directs him to surrender to the purchaser. Academy of Music v. Hackett, 2 Hilt. E. he being entitled to possession until the 217 ; Mortimer v. Bruner, 6 Bosw. R. 653. surrender is to be made, is entitled to the 2 Ogilvie V. Hull, 5 Hill (N. Y.), E. 52. rents which accrued to that time ; even Keeping a party out of possession by the though such rents be payable in advance, landlord is not equivalent to an eviction, so that a part of the term for which it is Hawkes v. Orton, 5 A. & E. 367. Neither due comes after the surrender by him, is an interference by the owner with the and the consequent eviction of his tenant, possession of a sub-tenant, a thing for Giles v. Comstock, 4 N. Y. E. 270. which the intermediate landlord will be ^ Whitney v. Myers, 1 Duer, E. 267 ; responsible ; nor will it suspend the rent and see Cram v. Dresser, 2 Sandf. B. 120 ; as between him and his sub-tenant. Carter v. Burr, 39 Bai-b. E. 59. SEC. 11.] OP THE COVENANT TO PAY RENT. 275 ing lewd ■women under the same roof with the demised premises, though in an apartment not demised, by which nocturnal noise and disturbance was made, and in consequence the lessee quitted the premises with his family, it was held to amount to an eviction, and no rent was recoverable.^ But no wrongful act of the landlord will suspend or extinguish the rent, if the tenant continues to occupy the premises during the time such rent accrued.^ And the act complained of must proceed from the landlord, for where a tenant abandons the premises, and resists the payment of rent sub- sequently-accruing, on the ground that other apartments in the same building, adjoining or below his, are occupied as a place of prostitution, he must show that the landlord created the nuisance, by leasing such apartments for that piirpose, or that it existed by his connivance and consent.^ § 381. There is no implied warranty on the letting of a house or land, that it shall be reasonably fit for habitation or cultivation, or for any other purpose for which it was let. And where a per- son hired a house and garden for a term of years, to be used for a dwelling-house, but subsequently abandoned it as unfit for habita- 1 Pendleton v. Dyett, supra. The Su- perior Court of the city of New Yorlii, in Cohen v. Dupont, 1 Sandf. R. 260, appear to have carried out the doctrine of an eviction by the landlord's misconduct to the utmost verge of the authorities ; hold- ing, that an intentional disturbance of the tenant's beneficial use and enjoyment of the premises, injurious to his business, and destructive of the comfort of himself and family, which disturbance was pro- duced by the landlord's family, but with his knowledge, constituted an eviction by the landlord, authorizing the tenant to quit the premises, and precluded the re- covery of rent. In a subsequent case, however. Cram u. Dresser, 2 Sandf. E. 120, the same court held, that a wrongful act of the landlord, causing great incon- . venience and trouble to the tenant's fam- ily, and keeping the demised premises in confusion and disorder for a long period, by an unreasonable delay in the painting and repairing he had undertaken to do, although it might have justified the tenant in considering it as an eviction, could not be set up as such, where the tenant con- tinued in possession for a year after the injury was sustained. 2 Egerton v. Page, supra. In Jack- son V. Eddy, 12 Miss. R. 209, it is said that any act of the lessor, which defeats the enjoyment of the property by the lessee, is a good bar to a demand for rent, provided the lessee abandons the premises in consequence of such wrongful act of the lessor. In St. John v. Palmer, 5 Hill, R. fiy9. Judge Bronson says, if the covenantee retains possession, it is impos- sible that there should have been an evic- tion, and no action wiU lie, however hard the case may be. 8 Gilhooley v. "Washington, 4 Comst. R. 217. In this case it was held, that if a land- lord lets part of a house to one tenant, and another part to another, and one of them makes his part a nuisance, so as to render the other part no longer habitable, the lease to the other is not thereby deter- mined, nor is he excused from the pay- ment of rent ; for that the doctrine of evic- tion by nuisance is not applicable in any case where the landlord is not instrumental in producing the nuisance ; nor is the land- lord under any obligation to institute pro- ceedings against the disorderly tenant for a misdemeanor, under 2 R. S. 702, § 29. That to constitute an eviction, without physical ouster, the tenant must have abandoned the premises in consequence of acts of his landlord so illegal and mon- strous as to be equivalent to an absolute physical ouster. See Mortimer v. Brumer, 6 Bosw. R. 653 ; Ogilvie't). Hull, supra; 2 E. D. Smith, &c. 276 LAW OF LANDLORD AND TENANT. [CHAP. IX. tion, in consequence of its being infested with vermin and other nuisances, which he was not aware of when he took the lease ; the principle was laid down, after an elaborate review of all the cases where a contrary doctrine seemed to have prevailed, that there is no implied contract on a demise of real estate, that it shall be fit for the purposes for which it was let.^ Consequently an abandon- ment of the premises under these circumstances forms no defence to an action for rent. And, in all those cases where a tenant has been allowed to withdraw from the tenancy, and refuse payment of rent, there will be found to have been a fraudulent misrepresenta- tion as to the state of the premises which were the subject of the letting, or the premises were proved to be uninhabitable by some wrongful act, or default of the landlord himself.^ But an excef- tion to the rule holds, it is said, when the contract is of a mixed nature, as for lodging, or of a house with furniture ; where it was said the landlord does impliedly contract that it shall be reasonably fit for habitation, and that the tenant may quit without notice if it be not so. Thus, where a man took a ready-furnished house, but upon entering found it so infested with vermin as to be unfit for the occupation of a respectable family. Lord Abinger, C. B., held, that the house being let with the furniture, for occupation, for a limited period, there was an implied condition that it should be habitable when the defendant entered upon the possession ; and he, therefore, left it for the jury to say, whether, under all the circum- stances of the case, the alleged grievance amounted to a nuisance, or was merely made a pretext by the tenant for leaving the house. ^ 1 Clearesi;. Willoughby, 7Hill(N.Y.), Eosenbaum v. Guuter, 3 E. D. Smith, R. 83; 2 B. D. Smith, R. 218; Button «. 203. Gerrish, 9 Cush. K. 89, 242 ; 25 Wend. R. » Smith v. Marrable, 11 M. & W. 5 ; 1 669; 3 Gray, R. 323; Hart v. Windsor, Car. & Mar. 479. See, also, Cowie v. 12 Mees. & Wels. 68; Sutton v. Temple, Goodwin, 9 C. & P. 378; Potter v. Truitt, lb. 52. These cases directly overrule 3 Harr. R. 381. In the case of Howard «. tlie cases of Edwards v. Etherington, 1 R. Doolittle, the Superior Court of the city of & M. 268 ; Collins v. Barrow, 1 M. & Rob. New York, per Duer, J., June, 1854, re- 112 ; and Salisbury v. Marshall, 4 C. & P. fused to follow the case of Smith v. Mar- ■ 65. The doctrine of implied warranties rable ; as being not only inconsistent with relates to the title, and not to the quality other decisions of the Queen's Bench itself, of the premises. Cleaves v. Willoughby, but in direct opposition to the general rule supra. of law, stated in the text, 3 Duer. R. 464 ; 2 Per Tindal, J., in Izon v. Gorton, 8 3 HiU, 380. The Supreme Court of New Bingh. N. C. 501. A tenant who was York also held in Westlake v. Degraw, 25 induced to accept a lease by false repre- Wend. R. 669, that a nuisance incidental to sentations continued to occupy the prem- a building, and which the tenant might dis- ises, and paid rent for nine months ; and cover and remove, for example, a noxious it was held by the N. Y. Com. Pleas, that smell produced by dead rats, does not en- both he and his surety were thereby pre- title him to abandon the premises ; and eluded from raising the objection of fraud, see Christopher v. Austin, 11 N. Y. R. 216, and post, § 646. SEC. II.] OP THE COVENANT TO PAY RENT. 277 But when, from the terms of the lease, it appears that the property rented is to be fitted up as a store, it will be understood that the store shall be fit for such use, at the time of the commencement of the term.^ § 382. Rent being an equivalent for an interest enjoyed, a cove- nant for its payment cannot be enforced, if no estate passed under the lease, and the tenant has not occupied the premises, since there is no legal consideration for the engagement. As if an attorney grants a lease for another, in his own name, instead of the name of his principal ; ^ or if the committee of a lunatic, having no legal authority for that purpose, make leases in their own name ; ^ or whenever the lessor (supposing him competent to demise) has no interest in the premises.* The same result ensues, whether the lease is void at common law or has been annulled by a statute.^ And where a license was granted for a term of years to continue a channel open through the bank of a navigable canal in order that the waste water might pass through the channel to the mills of the grantee on his covenanting to pay a certain annual sum, but it appeared on the trial that the grantors had no legal or equitable estate in the premises professed to be granted, the court held that the grantee or his assignee was not bound by the covenant.^ § 383. The tenant's obligation to pay rent may also be appor- tioned; for, as rent is incident to the reversion, whenever that is severed, either by the act of the parties or by act of law, the rent will follow the reversion, and become payable to the assignees of the respective portions thereof.^ But the lessee's consent to the apportionment, when made by the lessor, is necessary to give it validity ; unless the proportion of rent chargeable upon each part of the land has been agreed upon between the lessor and his assignee, or, in case of dispute, has been settled by the inter- 1 LaFarge v. Mansfield, 31 Barb. R. lease, and even where they have arisen 345. A lease of a coal-mine is no warran- since. Perrett v. Dupre, 3 Kob. La. B. tee that the land contains coal. Harlan v. 52. Lehigh Co., 36 Penn. R. 287. In the case ^ Frontin v. Small, 2 Ld. Ray. 1418 ; of Meeks ». Bowerman, the N. Y. Com. May v. Frye, Freem. 447 ; 2 Stra. 705. Pleas applied the doctrine of caveat emp- " Knipe v. Palmer, 2 Wils. R. 130. tor to the taking of a lease by a tenant. * Aylet v. Williams, 3 Ley. 193. The rule stated in the text, that there is ^ Cleaves v. Willoughby, supra ; Jer- noimplied warranty of fitness in a lease, is vons v. Harridge, 1 Sid. 308; 1 Saund. entirely reversed in Louisiana, where it is 6 ; 2 Keb. 102, 116. held that a lessor is bound to indemnify ^ Earl of Portmore v. Bunn, 1 Bam. & the lessee against all the vices and defects Cres. 694 ; 3 D. & R. 145. of the leased premises, though he knew ' Nellis v. Lathrop, 22 Wend. R. 121 ; nothing of them at the time of making the Daniels v. Richardson, 22 Pick. R. 568. 24 278 LAW OF LANDLORD AND TENANT. [CHAP. IX. vention of a jury.^ Such an apportionment is to be made among the several owners of the reversion, or of the rent, according to the value of the several parts held by each, and not according to the quantity or number of acres ; ^ and it is the province of a jury to apportion the rent to the value, according to the evidence pro- duced, unless the parties themselves settle the proportions which are to be collected from each tenant.^ But where there is no proof of value, the apportionment will be according to the quantities.* Where the lessor is entitled only to an apportioned part of the rent, an action for its recovery need not be confined to that part, but he may sue for the whole amount, and recover as much as, in the opinion of the jury, he ought to have, and will be barred as to the residue.^ § 384. An apportionment of rent, however, follows only upon an alienation of the reversion by the lessor ; and, therefore, if the ten- ant transfers the whole or part of his lease, the effect will not be to discharge him from the whole or part of his liability for rent, for he will still remain liable to the landlord for the whole.® The ten- ant will, of course, have the right to call upon an under-tenant for his proportion of rent, but such a transfer gives the landlord a double remedy : against the tenant, for the whole rent, by virtue of his contract, and against the under-tenant, for the part occupied by him, in respect to his privity of estate.^ Nor can one of two joint tenants of a lease discharge or apportion his liability, by assigning over to the other ; for the lessees, by their own act, can- not divide the rent, so as to put the lessor to several remedies for it.^ But, whenever a reversion is severed by act of law, there will 1 Bliss V. Collins, 1 Dow. & Ry. 291 ; quarter's rent between assignor and as- B. c. 5 B. & A. 876 ; 1 Man. & Gr. signee. Flim v. Calow, 1 M. & G. 589. 677. 8 Eushden's Case, Dyer, 4, b ; Broome 2 Van Rensselaer's Ex'rs v Gallup, 5 v. Hore, Cro. Eliz. 633. Denio, 454 ; Same v. Bradley, 3 Den. R. ' Stevenson v. Lambard, 2 East, R. 135. 580. 3 3 Kent, Com. 470 ; Cuthbert v. Kuhn, » BaiUff of Ipswich v. Martin, 1 Eol. 3 Whart. 366 ; Farley v. Craig, 6 Halst. Abr. 235, 1. 35. Where several persons R. 262 ; McEUery v. Elannagan, 1 Har. being the owners of land chargeable with & GiU, 308. rent, as tenants in common, make a vohm- * Van Rensselaer v. Jones, 2 Barb. R. tary partition among themselves, each as- 6*3. suming the payment of his equitable share 5 Walter v. Maunde, 1 Jac. & Walk, of the rent, a release to one of the owners 181. Where land in possession of a ten- will not extinguish the liability of another, ant for years is conveyed by deed, the and the land of each still remains charge- right of a purchaser of the reversion to able with the rent ; but, as between them- receive the whole rent of the current quar- selves, each is liable to the other for any ter cannot be controlled by a contempora- amount he may be compelled to pay be- neous parol agreement to apportion the yond his proportionate share. Van Eens- SEC. II.] OP THE COVENANT TO PAT KENT. 279 be an apportionment of rent without the consent of the tenants. Thus upon a descent of the reversion among heirs, or on a judicial sale of part of the demised premises, the tenant will have two land- lords, and bound to pay rent to each for the portion of the premises belonging to them respectively.^ So if a landlord dies leaving a Avidow, she will have a right to receive one-third of the rent, while the remaining two-thirds will be payable to his heirs.^ § 385. Various other instances of apportionment, by act of law, may be mentioned. As where a portion of the premises is taken, by public authority, for the opening or widening of a street, the tenant is entitled to an abatement of the rent, and is only charge- able with the proportion of rent due for the residue of the premises not taken .^ Or if a landlord enters upon part of the land for a forfeiture, he is only entitled to the proportion of rent due for the other part.* So if the tenant surrenders part of his estate to the lessor, the rent will be apportioned, and payable only in respect to the residue of the premises ; ^ and if he be evicted from part by force of a paramount title, there will be no suspension of the whole rent, but it will be apportioned and payable only for the residue.^ As between the lessor and an assignee of the lessee, where the les- sor's right to rent depends solely upon the privity of estate, an eviction out of part will not suspend the rent in toto, but the as- signee will be liable for rent, payable in respect to the residue of the lands demised.'^ Yet if the eviction be from part of the thing demised, out of which no rent issues, it will not produce a suspen- sion of any part of the rent.^ And if, at the time of entry by the lessee, part of the land is in the possession of a third party, under a prior demise from the same landlord, extending beyond the period of the second demise, the demise of the part leased to another will be wholly void, and the rent will not be apportionable, selaer u. Chadwick, 24 Barb. R. 333. And Co. Lit. 148, a; Walton v. Flint, Cro. if a portion of the lands so partitioned Eliz. 742. comes to the possession of a third person, ^ x Eol. Abr. 237, b, 12, Apportion- he is also liable as assignee of the lessee, ment; Cro. Bhz. 771. Van Kensselaer v. Gifford, ib. 349. An ^ Gillespie v. Thomas, 15 Wend. R. assignee is liable to pay the whole rent 464 ; Cro. Eliz. 742 ; Cro. Jac. 160. when it becomes due, and cannot col- * Walker's Case, 3 Rep. 22. lect a portion of it from his assignor, the ^ Smith v. Mailings, Cro. Jac. 160. lessee; for, in the absence of a special agree- " Ibid.; Co. Lit. 148; Walker's Case, ment, the rent cannot be apportioned be- supra. tween them. Graves v. Porter, 11 Barb. ' Stevenson v. Lambard, supra. K. 592. ^ Saunderson v. Harrison, Cro. Jac. 1 Cole V. Patterson, 25 Wend. R. 456 ; 679. 280 LAW OF LANDLORD AND TENANT. [CHAP. IX. nor will the lessor be entitled to distrain for the rent, or any part of it,i § 386. Where the lessee has been once evicted, the rent will be suspended for the future, although the obstacle to his re-entry be removed. As where a defendant pleaded, that the lessor entered and held him out, it was determined that the entry of the lessor was enough to satisfy the averment of holding out, and that it sus- pended the rent, although it appeared that the lessor retired from the land immediately after the lessee's eviction.^ So in a case where a lessee took possession of a farm, under an agreement, which his landlord, in a material point, failed to fulfil, and occu- pied the pi-emises for a year ; at the expiration of which time the landlord sued him for the full amount of the rent ; the court were of opinion that the agreement between them was only evidence of the amount of rent to be paid, where the tenant had occupied under such agreement ; but that, in the present instance, the land- lord having failed to fulfil the agreement, in the chief object which had induced the lessee to propose becoming a party to it, the ten- ant could not be said to hold the farm under the agreement ; and that, therefore, the landlord was not entitled to recover the full amount of rent, but only so much as the jury should think the ten- ant ought to pay, under all the circumstances of the case.^ Where part of the land is lost to a tenant by the act of God, he is not liable for the whole rent ; as if the sea break in and overflow a part of the land ; in which case, althoiigh the soil remains to the ten- ant, he cannot appropriate the fishery, which is its only use, to his exclusive enjoyment, the sea, the common highway of nations, being open to every one. But a distinction is made between the sea and fresh water; because, though the land be covered with fresh water, the right of taking fish there is exclusively vested in 1 STeale v. Mackenzie, 1 Mees. & Wels. by the original lease, and the rents agreed 747 ; see the doctrine of an equitable ap- to be paid by the tenant. By commencing portionment of rents, fully stated in Sto- the action before waiting to see if the new ry's Eq. Jur. §§ 475-485 ; and see, post, tenant pays the rent he agrees to pay, he § 443. assumes the hazard of his default. In 2 Cibil V. Hill, 1 Leon. R. 110. Under such an action, the landlord cannot recover a covenant in a lease that if the landlord for the expenditures made by him upon re-enter for non-payment of rent, he might the premises after the re-entry, although relet the premises as the tenant's agent, by reason thereof, he was enabled to relet and that the tenant should be liable for any at an enhanced rent. Hackett v. Richards, deficiency, if the landlord re-enters and 13 N. Y. R. 138. relets, and brings an action for the defi- ^ TomUnson v. Day, 2 Br. &Bing. 682. ciency, before the rent, under the new Where a lease granted land and an ease- lease, becomes due, he can only recover ment upon other land of the gi'antor, with the difference between the rent reserved a covenant for the quiet enjoyment of the SEC. II.] OP THE COVENANT TO PAY EENT. 281 , the lessee, and therefore there will be no deduction of rent in this event.^ § 387. It is also well settled, that, in all cases of periodical pay- ments, accruing at intervals, and not de die in diem, there can be no apportionment.^ If, therefore, a tenant is evicted at any time before the rent becomes due, it is not payable at all. As, if there be a lease for a term of years, with rent payable annually, and, before the expiration of the year, the lessee be evicted, the lessor shall have no rent ; ^ or, if the rent is payable quarterly, and the tenant be turned out before the end of a quarter, the landlord loses the rent of the current quarter, for rent will not be apportioned in respect of time.* And a similar result follows upon a voluntary surrender of the lessee, or his assignee, to the landlord, before the rent of the current quarter becomes payable.^ For this reason, at common law, if a tenant for life made a lease for years, rendering a yearly rent, and died in the course of the year, the rent could not be apportioned, and his tenant would go free of rent for the first part of the year, since it was an entire contract, which could not be apportioned.^ But the statute of 11 Geo. II. c. 19, first applied a remedy to cases of this kind ; and the Revised Statutes of New York, following the English statute, declare : " When a tenant for life, who shall have demised any lands, shall die on or after the day when any rent became due and payable, his executors or administrators may recover from the under-tenant the whole rent due ; if he die before the day when any rent is to become due, they may recover the proportion of rent which accrued before his death." "^ But this provision applies only to leases made by the tenant for life, and not to those made by the testator ; and there- fore a devisee for life of the income of real estate, leased for a term of years, is entitled only to the rents falling due in his lifetime ; and if he dies between two quarter days, the rent cannot be appor- tioned.^ whole, the tenant, on a partial eviction Case, 10 Eep. 128 ; Wood v. Partridge, 11 from the easement under title paramount, Mass. K. 488 ; 15 ib. 268. is entitled to an abatement of the rent. ^ Young v. Peyser, 3 Bosw. R. 308. Blair v. Claxton, 18 N. Y. E. 527. ° Clun's Case, supra ; Jenner v. Mor- 1 1 Rol. Abr. 236, 1. 46 ; Dyer, 56, a. gan, 1 P. Wms. 392 ; Cutter v. PoweU, 6 2 Clapp V. Astor, 2 Edw. Ch. R. 379 ; T. R. 320. Wilson V. Harman, 2 Ves. Sen. 672 ; s. o. ' 1 R. S. 747, § 22. Amb. 279; 3Bro. C. C. 101. » StillweU v. Doughty, 3 Bradford 3 Bank of Penn. v. Wise, 3 Watts, 394 ; E. 359. Where a lease continues beyond Countess of Plymouth v. Throgmorton, 1 the termination of the life-estate, the rent Salk. 65. belongs to whoever has the estate on the * Zule V. Zule, 24 Wend. E. 76 ; Clun's rent day, and there can be no apportion- 24* 282 ,LA-W OP LANDLORD AND TENANT. [CHAP. IX. § 388. An eviction consists in taking from a tenant some part of the demised premises of which he was in possession, not in refusing to put him in possession of something, which, by the agreement, he ought to have enjoyed ; the omission of a landlord, therefore, to perform such covenants, does not amount to an eviction, and is no bar to the lessor's claim for rent ; the lessee's remedy is by an action to recover damages for a breach of the covenant.^ Yet, where the landlord let an unfinished house, and agreed to finish it by a certain day, but did not, it was held that the tenant was not bound to occupy the house ; although if he had occupied it, it was conceded he would have been bound to pay the stipulated rent, for that possession subjects a tenant to the payment of rent, unless there has been an eviction.^ Neither can a lessee claim a deduc- tion from the stipulated rent, by reason of a contemporaneous parol agreement to make improvements during the term, which would render the use of the demised premises more valuable ; such an agreement cannot be shown in any case, where there was no fraud in making the lease, or in obtaining its execution.^ In order to effect a suspension of rent, there must be an actual expulsion or eviction from the premises, and not a mere trespass, or disturbance of the enjoyment.* Therefore, where a lessor commanded the breaking of a partition wall in the house demised, it was held not to amount to a re-entry.^ And where a lease was executed of three rooms in a building, together with a landing on a navigable canal, embracing a front of two hundred feet, and the lessee covenanted to pay a certain annual rent, so long as he should be permitted to ooeivpy the premises, it was held that the destruction of the rooms by fire was not embraced in the qualification contained in the cove- nant ; and, to entitle the defendant to a discharge from the rent, he should have shown a surrender of the whole of the premises ; for that, while he remained in possession of any portion of the premises, he could claim only &pro ratd reduction of rent for such part only as had been destroyed.^ nient thereof tetween the tenant for life Roper v. Lloyd, Sir T. Jones, 148 ; Hunt and the remainder-man. Marshall v. v. Cope, Cowp. K. 242 ; Vatel v. Herner, Moseley, 21 N. Y. E. 280. 1 Hilt. R. 149. 1 Etheridge v. Osborne, 12 "Wend. E. ^ Harrison's Case, Clayt. 34 ; Smith v. 529. Eawleigh, 3 Camp. 513. 2 Allen V. Pell, 4 Wend. E. 505. ^ Willard v. Silliman, 19 "Wend. E. s The Mayor, &c., u. Price, 5 Sandf. E. 358. So where, before the first of May, a 542 ; Tibbets v. Percy, 24 Barb. E. 39. person leased a store and dwelling for one * Waldron v. McCarty, 3 Johns. E. year from that day, rent payable quarterly 471 ; Kortz v. Carpenter, 5 Johns. R. 120; in advance, the store and dwelling to be SEC. II.J OP THE COVENANT TO PAY EENT. 283 § 389. Any other mere entry iipon the premises by the landlord, without an eviction, does not discharge the rent ; for the landlord, in such case, is only a trespasser.^ And where a landlord, owning a lot adjoining the demised premises, built a house on such lot so as to cut off the tenant's light and air, the obstruction was held not to amount to an eviction.^ But where a party, after executing leases of portions of his farm to several tenants, granted the whole farm, with the reversion of the demised premises, to a tenant in fee, reserving an annual rent, and after such grant entered upon the premises, and distrained the goods of the original tenants, for rent accrued subsequent to the grant of the whole estate ; such entry and distress were held equivalent to an eviction of the prin- cipal tenant, and produced a suspension of the rent.^ § 390. With respect to the person to whom rent is payable, it is scarcely necessary to observe that every tenant is responsible to his immediate landlord, in the first instance ; but an under-tenant, in order to protect his possession, may always pay to the original les- sor. And it is not necessary for his protection, that the original lessor should threaten a suit, or even demand the money; the right of the landlord to sue for rent, or to re-enter, is sufficient to render the payment compulsory.* If a lessor, being owner of the fee, dies, after rent has become due, it is payable to his executor or administrator, and not to the heir at law ; but if he dies before the rent accrues, it belongs to the heir, and not to the executor or administrator.^ An illustration of the principle applicable to this subject, occurs in a case, where a tenant for life, having granted leases in conformity to his power, died before midnight, though after sunset, on the rent-day, and the remainder-man was declared to be entitled to the rent, because it followed the reversion, which descended to the heir before the rent became due.^ § 391. As to the time when rent is due, we observe, that by the erected and completed by that day, the Myers v. Gemmel, 10 Barb. E. 537. Un- upper story to be finished into a dwelling ; dermining the tenant's wall, by an adjoin- and the tenant entered into possession and ing owner, no excuse for the non-payment remained until the second quarter's rent of rent. Kramer v. Cook, 7 Gray, R. 550. fell due, and then abandoned the premises ; ^ Lewis v. Payn, 4 Wend. R. 423. it was held to be no objection to the col- * Peck v. IngersoU, 3 Seld. R. 528 ; see, lection of rent, that the premises were un- ante, § 155. tenantable, in consequence of the building ^ Cole v. Patterson, 25 Wend. E. 456 ; not being completed by the landlord ac- Duppa v. Mayo, 1 Saund. R. 287 ; Bar- cording to the agreement. Nichols v. Du- wick v. Poster, Cro. Jac. 227 ; 2 Dana senbury, 2 Comst. R. 283. (Ky.), R. 54. 1 Wilson V. Harman, Yerger, E. 379. ^ Norris v. Harrison, 2 Mad. Ch. R. 268. 2 Palmer v. Wetmore, 2 Sandf. E. 316; 284 LAW OP LANDLORD AND TENANT. [CHAP. IX. old law it was due and payable before sunset of the day whereon it was to be paid ; on the reasonable ground that sufficient light should remain to enable the parties to reckon the money; for, anciently, the day was accounted to begin only from sunrising, and to end immediately upon sunset.^ But Lord Hale laid down the law, which has been followed since his day, that although sunset was the time appointed by law to demand rent, in order to take advantage of a condition of re-entry in case of its non-payment, and to tender it in order to save a forfeiture, yet that, in strictness, the tenant has all the day to pay it, and that it is not due until mid- night, or the last minute of the natural day, whereon it is made payable.^ If, therefore, the tenant is evicted by his landlord on the day the rent is payable, it will operate as an extinguishment of the whole rent.^ The day of payment depends upon the contract ; but is sometimes regulated by custom. It may be made payable in advance ; * and if there is no special agreement to the contrary, payment would be due, either yearly, half-yearly, or quarterly, according to the usage of the country, and the presumed intention to conform to it. If there be no usage or agreement in the case, rent is not due until the end of the term.^ But we have seen, that, in the city of New York, in the absence of any special agreement, rent is payable on the usual quarter days, by statute.^ When pay- able in money, interest is allowed to be recovered upon rent in arrear from the time it became due, at least in New York, Pennsyl- 1 Co. Lit. 202, a. Tor the requirements ^ 3 Kent, Com. 374 ; Menough's Ap- of a common law demand, see, post, § 493. peal, 5 Watts and Ser. K. 482. If rent 2 Duppa V. Mayo, supra. is payable quarterly, nothing is due un- 8 Smith V. Shepherd, 15 Pick. 147. til the time stipulated for payment ar- * Giles V. Comstock, 4 N. Y. R. 270 ; rives. Wood «. Partridge, 11 Mass. E. Conway v. Starkweather, 1 Den. R. 113. 488 ; Pitchburg Co. v. Melven, 15 Mass. A lease was to run " from the first day of R. 268. If the lease specifies no par- April next," for five years " next ensu- ticular time of payment, an agreement ing," rent payable in equal quarterly pay- to pay quarterly may be Inferred, from meats, to wit : on the first days of April, the fact that the lessor had demanded it July, October, and January, in each and quarterly, and the tenant had frequently so every year " during the term. The prem- paid it. Long Isl. R. R. Co. v. Marquand, ises were a brickyard, and the lessees 6 N. Y. Leg. Obs. 160. In a reservation covenanted to have at all times on the of rent " payable in quarterly or monthly premises brick enough to secure one quar- payments," it was held that the alterna- tor's rent ; and in default of payment the tive was for the benefit of the landlord, lessor might either retake possession, or and not of the tenant. Pemberton «. Van enter and sell enough brick to pay arrears. Rensselaer, 1 Wend. R. 307. Held, that all these provisions showed a ° Under a lease in the city of New careflil design to give the lessor the am- York, from the first of October to the first plest security possible, and that the word of May, at a yearly rent, payable quarterly, " from " must be construed to include the it was held that the rent was payable on the first day of April, and that the rent was usual quarter days, i. e., one month's rent payable on that day in advance. Deyo v. on the first of November, and thenceforth Bleakley, 24 Barb. R. 9. quarterly. Wolf ». Merritt, 21 Wend. R. SEC. II.] OP THE COVENANT TO PAT RENT. 285 vania, and Maryland ; ^ and such is believed to be the general rale. Btit in North Carolina, it is held not to be recoverable by waj of damages, in an action of debt for rent,^ nor in Louisiana, except from the time of the judicial demand.^ While in New York it was held, that in a covenant for non-payment of rent, on a lease reserv- ing a certain number of bushels of wheat, and a number of fowls annually, the plaintiff is entitled, as matter of law, to interest on the value of the property after the time, when, by the terms of the lease, it should have been delivered.* § 392. In regard to the place of payment, it is to be observed, that, when rent in kind is payable by the terms of the lease at such a place, in a market town, as the lessor shall appoint, and no appointment has been made, it is the duty of the lessee to seek the lessor, ascertain the place of payment, and there deliver his rent. If the landlord cannot be found, a delivery anywhere within the market town would be sufficient. And whether payable in money, or in kind, if no place of payment is specified, a tender of either upon the land is good, and prevents a forfeiture.^ Although the tenant is under no obligation to go and seek the landlord, provided the contract is silent as to the place of payment, a personal tender to him anywhere is held to be sufficient.^ And when payable in kind at such place as the lessor shall from time to time appoint, the lessor may sustain an action on the lease, for the value of the rent, without averring or proving that he directed the lessee where to deliver it. But upon such a lease, if the lessor gives directions where to make the payment, the lessee must be prepared to pay according to the directions.^ 336. Otherwise held of a lease from the specific articles, where, by the terms of the tenth day of the month, for a term of years contract, payment is to be so made, is to to end on the first day of the mouth. Cur- discharge the debt, and to transfer the own- tis V. Miller, 17 Barb. R. 477. ership of the articles tendered to the 1 Clark V. Barlow, 4 Johns. R. 183 ; creditor, notwithstanding he may refuse Obermyer v. Nichols, 6 Binney, 159 ; s. o. to accept it. Des Acts v. Leggett, 16 N. 4 McCord, 59 ; Dennison v. Lee, 6 Gill Y. R. 582 ; Lamb v. Lathrop, 13 Wend. & Johns. 383. A tender of money does R. 95. Thenceforth he holds them as not extinguish the debt, it merely stops the bailee, at the risk and expense of the running of interest. Raymond v. Bear- other party. Sheldon v. Skinner, 4 Wend, nard, 12 Johns. R. 274; and see 2 N. Y. R. 525 ; 8 Johns. R. 477. R. S. 554, § 20, and Brown v. Ferguson, ^ Walter v. Dewey, 16 Johns. R. 222; 2 Den. R. 196 ; 6 Hill, R. 10. Shingerland v. Morse, 8 Johns. R. 474 ; 2 Cook V. Wise, 3 Hen. & Munf 463. Hunter v. Leconte, 6 Cow. B. 728 ; Sow- 8 Ferret v. Dupre', 19 Louis. R. 341. ard v. Palmer, 8 Taunt. R. 277 ; Tinckler * Van Rensselaer's Ex'rs v. Jewett, 5 v. Prentice, 4 Taunt. R. 555. Denio, R. 135; s. c. 2 N. Y. R. 135. ' Liringston v. Miller, 4 Seld. R. 283; 5 Lush V. Druse, 4 Wend. R. 313 ; 16 s. c. 1 Kern. R. 80. In general, the taking Johns. R. 222 ; Van Rensselaer v. Jones, 5 of a bill or note in payment of a debt does Denio, 453. The efiect of a valid tender of not operate to discharge the debt, unless 286 LAW OP LANDLORD AND TENANT. [CHAP. IX. § 393. A tender of money is its actual production and manual offer to the party entitled to payment. It is not enough for the party to say, I am ready to pay the debt, or perform the duty ; but he must make an actual offer to pay the one or discharge the other .^ He must declare on what account it is made ; and actually produce the money, and not keep it in his pocket ; but he may offer a bag with the money in it, and it is then the creditor's duty to examine and count it.^ The actual production of the money, however, may be dispensed with by the conduct of the creditor : as if he abso- lutely refuses to receive it, or if he objects to receive it, because it is too much, or because it does not amount to the debt due, together with another debt which he also insists on receiving, or where he tells the party he need not produce the money .^ But the circum- stance of demanding more than is due, is not sufficient to excuse an actual tender of what is due.* It must also be without qualifi- cation or condition, or an intention of cutting off some other claim beyond the amount tendered ; as if the debtor, at the time of the tender, demands a receipt in full for all demands ; although he may ask a written receipt or acknowledgment for the amount paid.^ The tender must ordinarily be made directly to the creditor ; and if made to an agent or other person, it must be shown that he had authority to receive it.^ it is so expressly agreed by the parties. 68 ; 5 ib. 48 ; 4 Call. E. 372 ; ib. 190 Murray v. Governeiir, 2 Johns. Cas. 438 : 5 Co. 115 ; 1 Inst. 208 ; 5 Term E. 432. or unless the creditor negotiates the note. ^ Cow. Treatise, 794 ; 3 Term E. 683 , Herring v. Sanger, 3 Johns. Cas. 71. It Peake, R. 88 ; Stone v. Sprague, 20 Barb! merely postpones the time of payment of E. 509 ; Holmes v. Holmes, 12 Barb. 137 ] the debt, and if not paid, it may be re- Vaupell v. Woodward, 2 Sandf. Ch. E, turned, and the original debt resorted to. 143. Tobey v. Barber, 5 Johns. E. 68. So the * Dunham v. Jackson, 6 "Wend. E. 22 accepting of a sealed obhgation for rent 10 East, 101 ; 7 Moore, 59. does not extinguish it, nor affect the right 5 "VVood v. Hitchcock, 20 Wend. E. 47 to distrain for it. 3 Bac. Abr. 82, 107 ; 4 7 Dow. & Ey. 119 ; 1 N. & McCord, 242! Mod. E. 45 ; 12 ib. 7 ; 1 Verm. E. 490. A tender upon condition that certain se- Whether it arises on a parol lease, or by curities shall be surrendered, to which the indenture. Cornell ;;. Lamb, 20 Johns, debtor is not entitled, or that the holder R.407; s. c. 2Cow. E. 652. Or is secured of the obligation will ratify an arrange- by a chattel mortgage. Lofsky v. Maujer, ment made concerning another matter, is 3 Sandf. Ch. E. 69. See, post, § 565 ; and in either case bad. Brooklyn Bank v. generally as to a discharge of the obliga- Degraw, 23 Wend. R. 342 ; Eddy u. tion to pay rent, see the various actions O'Hara, 14 Wend. E. 221. for rent treated of in Chap. XIII. « Hornby v. Cramer, 12 How. Pr. E. 1 Bakeman v. Pooler, 15 Wend. E. 637 ; 490 ; Smith v. Smith, 2 Hill, E. 351 ; Har- 2 Dall. E. 190; 12 Mod. E. 353; Dunham gous v. Lakens, 3 Sandf. E. 213. If the V. Jackson, 6 Wend. E. 22. No tender, if creditor, knowing the day on which pay- the money has been fraudulently obtained, ment ought to be made, voluntarily ab- Eeed v. Bank of Newburgh, 6 Paige, R. sents himself from home on that day, 337. under circumstances indicating an inten- 2 Bakeman v. Pooler, supra; 4Esp. E. tion to avoid the debtor, a tender by the SEC. II.] OP THE COVENANT TO PAY RENT. 287 § 394. As to a tender of specific articles, the authorities agree, says Judge Cowen, in his treatise on the Justices' Courts, that the party making the tender must do every thing in his pow^r to place himself in a state of perfect readiness to perform, or the tender will not be complete, whether the creditor be present or not.^ It is a general rule, also, that where any act yet remains to be done by the purchaser to prepare the goods for delivery, until this is done, the property does not pass, and the essential object of identifying the goods, and giving the tenderee a remedy for them, by caption, trover, or other action to obtain the goods, or the value of them, is not yet obtained. This is essential, for the party is not to be de- prived of all remedy upon his contract, unless another remedy is furnished him by passing the property of the chattels, and placing them completely under his control.^ Strictly, a tender must be made in gold and silver coin made current by acts of Congress of the United States. Such coin as is issued from the mint may be counted, and the creditor must take it according to its nominal value. But with regard to foreign coin, the creditor may decline to receive it, except by its true weight and value.^ Bank-notes con- stitute a part of the currency of the country, and ordinarily pass as money. When they are received as payment, the receipt is always given for them as money ; and they are a good tender as money, unless specially objected to by the creditor at the time of the offer.* latter to any person whom he may find at ats fine, at 94 8-10 cents per pennyweight ; the creditor's house, is good. Judd v. and of Spain, Mexico, and Columbia, 20 Ensign, 6 Barb. R. 258 ; 25 Wend. R. carats 3 7-16 grains fine, at the rate of 89 405. 9-10 cents per pennyweight, by Act of 28 1 1 Str. 504 ; 3 Johns. Cas. 253, per June, 1884, are made current and receir- Eadcliff, J. able by weight, for the payment of all 2 Cow. Treatise, 796 ; 15 Johns. E. debts and demands. Gold coins are to be 351 ; 12 East, 621 ; 13 ib. 622 ; 1 Boot, received at their respective values, for 443 ; 5 Johns. R. 119. debts of any amount. Half dollars and 8 Cow. Treatise, 798. Spanish milled other minor denominations of silver fsr dollars, and their proportional parts, were debts under five dollars ; and cents only declared current in the United States, and for dues under ten cents. a legal tender, by Act 10 April, 1806. * Per Story, J., United States v. Bank The dollar of Mexico, Peru, ChiU, and of Georgia, 10 Wheat. R. 347. Counter- Central America, BoUvia, and Spanish feit notes, or notes which prove to be of pillar dollars of the requisite weight and no value, are no payment, although they fineness, are receivable by tale in payment were paid in good faith, and supposed to of debts, for one hundred cents each ; and be genuine. Markle v. Hatfield, 2 Johns, the five-franc piece of France for ninety- E. 455 ; but see Benedict v. Field, 4 Duer, three cents ; by Act 3 March, 1843 ; Act R. 154. When a bank stops payment, its 25 June, 1834. The gold coins of Great bills cease to be a representative of the Britain at 94 6-10 cents per pennyweight ; legal currency, whether the holder is of France, at 92 9-100 cents per penny- aware of the suspension or not. If such weight, by Act of 3 March, 1843 ; and the bills are passed to one who is ignorant of gold coins of Portugal and Brazil, 22 car- the failure of the bank, they are no pay- 288 LAW OP LANDLORD AND TENANT. [CHAP. IX, SECTION III. THE COVENANT TO PAT TAXES, CHARGES, AND ASSESSMENTS. § 395. As far as the public is concerned, it is a general principle that the tenant is to pay all taxes imposed on the premises ; the land itself, in the hands of the occupant, is debtor to the public, and primd facie it is the tenant's tax, because all the remedies are against him. He is, therefore, for his own protection, authorized to pay such taxes, as well as assessments for public improvements, when demanded, and to charge them to account of rent ; unless it is clearly a part of his agreement that he shall pay the taxes as part of,' or in addition to, the rent.^ For, as between landlord and tenant, the landlord is bound, as we have seen, to indemnify the tenant against all such charges as he has been obliged to pay, and for which the landlord was primarily liable.^ Whenever, therefore, a tenant advances the tax, ground-rent, assessment, or other prior charge on the land, he may look to the landlord again for it, and recover the amount paid, in an ordinary suit at law, or deduct it out of the rent, unless it is provided by the lease that the tenant shall pay it.^ Nor is it necessary, for the purpose of rendering the payment an involuntary one, that the superior lord should threaten to distrain ; for a demand by one who has power to enforce his claim, is equivalent to a compulsion ; and such a payment, to use the words of Best, C. J., is no more voluntary than a donation to a beg- gar, who presents a pistol.* And, if the sum paid by the tenant exceeds the rent due to the landlord, it will create an obligation on the part of the landlord to repay such excess, as money paid by the tenant to his use.^ ment. Ontario Bank v. Lightbody, 13 Stubbs v. Parsons, 3 B. & A. 516. And Wend. R. 101. That the creditor may see, ante, § 341. return a counterfeit bank-note, in a rea- ^ 1 N. Y. R. S. 410, § 73 ; 419, § 6 ; sonable time. Thomas v. Todd, 6 Hill, Hunt v. Amidon, 4 Hill, E. 349 ; Taylor K. 340. V. Zamira, 6 Taunt. U. 524; Clennell v. 1 Tincklen v. Prentice, 4 Taunt. R. Read, 2 Mars. 371 ; 7 Taunt. R. 50 ; Dow- 549 ; Gabell v. Sherell, 5 Taunt. R. 81. son v. Linton, 6 B. & A. 521 ; Garner v. It would seem, that in Maryland, if no Hannah, 6 Duer, R. 262. mention is made of taxes in the lease, they * Carter o. Carter, 5 Bingh. R. 406 ; are payable by the tenant, and do not con- s. c. 2 Moore & P. 732. stitute a set-ofF to the payment of rent. ^ Per Burroughs, J., in Taylor v. Za- Hughes V. Young, 5 GUI & Johns. 67. mira. ^ Sapsford v. Fletcher, 4 Terra R. 511 ; SEC. III.] THE COVENANT TO PAY TAXES, ETC. 289 § 396. According to the English law, a tenant must deduct each year s tax from each year's rent ; for if the deduction is not made from the rent of the current year, the tenant will not be allowed to deduct, in any subsequent year, the amount of the tax so omitted to be deducted.^ Thus, where an occupant of lands, having, during a course of twelve years, paid to the collector of taxes the land- lord's property-tax, and the full rent as it became due to the landlord, without claiming any deduction on account of the tax so paid ; he was not permitted to set olf any part of the property-tax so paid, in the landlord's action for rent.^ In the case referred to, however, it was held, that the statute required the tenant to deduct those payments out of the rents of the then current years, and that for that reason they could not be set off against subsequent de- mands of rent by the landlord ; but the court expressly say, that such payments are still recoverable by the tenant in a -separate action for money paid to the landlord's use, because of the land- lord's liability to indemnify the tenant against such payments at common law. § 397. But this restriction of the tenant's right to deduct the taxes only from the current year's rent, does not exist in the New- York statute, which declares, " When the tax on any real estate shall have been collected of any occupant and tenant, and any other person, by agreement or otherwise, ought to pay such tax, or any part thereof, such occupant or tenant shall be entitled to recover, by action, the amount which such person ought to have paid ; or to retain the same from any rent due, or accruing from him, to such person, for the land so taxed." The same statute also enacts, " Where any district tax, for the purpose of purchasing a site for a schoolhouse, or for purchasing or building, keeping in repair, or furnishing such schoolhouse with necessary fuel and appendages, shall be lawfully assessed and paid by any person, on account of any real property whereof he is only tenant at will, or for three years, or for a less period of time ; such tenant may charge the owner of such real estate with the amount of the tax so paid by him, unless some agreement to the contrary shall have been made by such tenant." ^ § 398. A covenant by a tenant to pay all rates, which, during the 1 Stubbs V. Parsons, 3 B. & A. 516 ; = Denby v. Moore, 1 B. & A. 123. Andrew v. Hancock, 1 Brod. & Bing. 37 ; s i n. g. 419^ § 4 . jj. 433^ j §3, Spragg V. Hammond, 2 ib. 59. 25 290 LAW OF LANDLORD AND TENANT. [CHAP. IX. term, should be assessed iipon the premises, except the land-tax, means to except the land-tax which the laadlord is obliged to pay ; and therefore the tenant must pay the additional tax occasioned by an improvement of the premises.^ But a tax on the rent reserved by the lessor is not a tax \ipon the premises which a tenant is bound to pay upon such a covenant.^ In a case where a tenant took a village lot for twenty-one years, and covenanted to pay all taxes, charges, and impositions which should be imposed upon the prem- ises, and during the term the premises were subjected to an assess- ment for regulating and paving a street, under an act incorporating the village and authorizing such assessment, passed subsequent to the making of the lease ; the court held, that by the terms of the covenant the tenant was liable to pay the assessment, although the expenditure was for a permanent benefit, extending beyond the term.^ So where a lessee covenanted to pay all assessments for which the property should be liable, he was held bound to pay an assessment subsequently imposed for opening a street, although it was not authorized by any law existing at the time the lease was executed.* Bvit an assessment for a supposed benefit to a lot on the opening of a street is not included in the tenant's obligation to pay taxes .^ § 399. As both landlord and tenant are entitled to damages in the event of property being taken for public improvements, — the land- lord for the value of the laud taken, and the tenant for the injury done to the lease, — so, in case they are both benefited by the con- 1 Hyde v. Hill, 3 Term R. 377. * Post v. Kearney, 2 Comst. R. 395. 2 Van Rensselaer v. Dennison, 8 Barb. Wliere a lease contained a provision that R. 23. the lessee should pay " the ordinary and 3 Bleecker v. Ballou, 3 Wend. R. 263 ; yearly taxes," it was held, that the annual Mayor, &c., of New York v. Cushman, 10 water rent, charged on the premises, ac- Johns. R. 96 ; Oswald v. Gilfert, 11 ih. cording to the rates established by the 443. A lessee covenanted to pay or cause Croton Department, is within the mean- to be paid all taxes and assessments, &c. ; ing of the covenant, and properly to be held that the covenant did not e:!(tend to considered as embraced within that de- a city assessment upon the landlord for scriptiou of taxes. Garner ;;. Hannah, 6 benefit to his reversion from the laying- Duer, R. 262. out of a new street contiguous to the prop- ^ Matter of the Mayor, &c., of N. Y., erty, for which improvement the tenant, 11 Johns. R. 77 ; Sharp v. Spier, 4 Hill, according to his hiterest, was also assessed. 76. A co-tenant cannot suffer the land Love & wife v. Howard, 6 Rhode Is. R. to be sold for taxes, and buy it in and 116; Second U.S. «. The City of Provi- hold it for his own exclusive benefit; dence, 6 ib. 235. So a stipulation to pay such a purchase will enure to the benefit all taxes and keep the sidewalks in re- of all the tenants. Van Home v. Fonda, pair was held not to extend to the pay- 5 Johns. Ch.R. 388 ; 2j6. SO. He is bound ment of the expenses of paving the street to protect the interest of those who stand in front of the leased premises. Munici- in the same relation with himself to the pality No. 2 u. Currell, 7 Louisiana, R. property. Burhans v. Van Zaudt, 7 N. Y. 203. R. 623, s. c. 3 Seld. 523. SEC. IT.] THE COVENANT TO INS0EE. 291 templated improvement, they are both liable to be assessed, in pro- portion to the benefit they receive. But where a lessee covenanted to pay all taxes and assessments which might be imposed during the term, upon the premises by legal authority, and an improve- ment was made, which took away part of the leasehold premises ; it was held, that the lessee was chargeable with the full amount of the assessment, upon the whole interest of the lessor in such prem- ises.^ The lessee's covenant runs with the land, and will bind an assignee of the term.^ SECTION IV. THE COVENANT TO INSURE. § 400. A covenant is sometimes inserted in a lease, requiring the tenant to insure the premises ; and, in case of damage by fire, to apply the money to be received for insurance, in rebuilding or re- pairing the premises. Without such covenant, he is under no obli- gation to effect an insurance ; although, if it is a long lease, he might find it prudent to do so for his own protection. This cove- nant, in general, gives the landlord no right to receive the insur- ance-money from the insurers ; but when it contains a clause for re-instating the premises with the insurance-money, he may not only require it to be so applied, but it becomes also a covenant, running with the land, enabling the assignee of the reversion to maintain an action for its breach. And a similar effect will be given to this covenant, wherever a statute requires the money to be so applied.^ A covenant to insure and keep insured a given sum of money upon the premises, during the term, in some suf&cient insurance office, means that the premises shall be kept insured against fire, in some office where insurances against fire are usually effected ; * not that the lessee should effect any one policy, and keep that particular one on foot ; but that he, his executors, and assigns, should always keep the premises insured by one policy or another, and this cove- 1 Astor V. Miller, 2 Paige, R. 68. cer's Case, 5 Co. 17 ; Masury v. South. 2 Post V. Kearney, 2 Comst. R. 394. worth, 9 Ohio R. 340. « Thomas v. Von Kapff, 6 Gill & J. * Doe dem. Pitt v. Shewin, 3 Camp; 372 ; Vernon v. Smith, 5 B. & A. 1 ; Spen- R. 135. 292 LAW OP LANDLOED AND TENANT. [CHAP. IX. nant will be broken, if the premises are left uninsured, for any time however short .^ § 401. If the tenant covenant to keep the premises in repair, and also to insure them for a specific sum against fire ; on their being burned down, his liability on the former covenant is not limited to the amount of the sum insured under the latter, but he is bound to put the premises in as good order as they were, notwithstanding the sum insured may not be sufficient for that purpose.^ Where the defendant covenanted to keep the premises insured during the term, and the policy declared that only fifteen days beyond the quarter- day should be allowed for the payment of the premium, and he suf- fered the fifteen days to elapse before it was paid, but insured afterwards ; the court held the covenant broken, for the landlord ran the risk of fire from the fifteenth day to the time the insurance was renewed.^ A forfeiture for the breach of this covenant will not, in general, be relieved against in equity, unless there has been a waiver of such forfeiture by receipt of rent or the like ; and, on the non-performance of the covenant, the lessor may enter as for the breach of a condition, if such right has been reserved in the lease, and oust the assignee of the lessee ; even although the lessor has distrained for rent, with knowledge of the breach of the covenant, which was a waiver of the breach of condition up to the time of dis- tress ; for the subsequent non-insurance is held to be a continuing breach up to that time, and gives a right of re-entry for the for- feiture.* ^ Doe dem. Flower v. Peck, 1 B. & Ad. C. L. R. 953). In this case, which is a 428. A change of tenants of the insured Tery strong illustration of the rule, the building, the policy being silent on the tenant had covenanted to insure the de- subject, does not iuTalidate the policy, mised premises, and to keep them insured though the first tenant may be a prudent, in the joint names of the landlord and of and the second a grossly careless man. himself, and the lease contained a proviso Gates V. The Madison Ins. Co. 1 Selden, for re-entry upon the breach of any of the R. 469. covenants. The tenant insured in his ^ Digby V. Atkinson, 4 Camp. R. 275. own name only, but he showed the policy ' Doe dem. Pitt o. Shewin, supra, to the landlord, who approved of it, and Where the covenant requires the tenant accepted rent during the next three years to keep the building insured in a certain up to Christmas, 1842. The premium sum for the benefit of the landlord, an paid by the tenant at that period covered insurance effected by the lessee in his own the year 1843. In January, 1843, the name is no compliance with the covenant, landlord assigned his reversion, and in that Keteltasu. Coleman, 2 E. D. Smith, R. 408. year, the assignee brought ejectment for * Doe dem. Plower u. Peck, supra, the forfeiture caused by the non-insurance As a breach of this covenant by non- in the joint names of the landlord and insurance is a continuing breach, the tenant ; and it was held, that the lease receipt of rent by the landlord after was forfeited, although no notice had been the commencement of the non-insurance given to the tenant to alter the policy, waives only that portion of the breacli See also, Penniall u. Harborne, 11 Q. B. •which has then actually occurred. Doe 368 (63 E. C. L. R. 368). d. Mustow V. Gladwin, 6 Q. B. 953 (51 E. SEC. V.J THE COVENANT NOT TO ASSIGN. 293 SECTION V. THE COVENANT NOT TO ASSIGN. § 402. A covenant not to assign or underlet the premises, with- out the express permission of the landlord, is a covenant on the part of the lessee frequently inserted in a lease ; and although it seems to he a reasonable privilege, that a man shall exercise this restraint for the salutary purpose of selecting his own tenants, such as he is satis- fied will take care of his property, and pay rent punctually, it is a restraint which coiirts of law do not favor .^ In some cases the re- striction extends to the whole duration of the term ; in others to a limited time only, such as for the last year, or the last two or three years ; so that, at all events, the lessor may find, on the determina- tion of the lease, a responsible person in possession of the property, to whom he may look for rent. § 403. Covenants of this description are construed by courts of law with the utmost jealousy, to prevent the restraint from going beyond the express stipulation.^ If, therefore, the lessee covenants not to assign, transfer, set over, or otherwise do, or put away the lease or premises, it does not prevent him from under-letting. Nor will a covenant " not to let or underlet the whole or any part " of the demised premises preclude an assignment of the whole interest.^ 1 Church V. Brown, 15 Ves. K. 265 ; they cannot be assigned or sublet without Black. E. 767. A provision of a similar the landlord's consent; but the lease of a charsicter exists in many of the manor city tenement is assignable, or may be leases in New York, having for at least underlet, unless there be a prohibitory one of its objects the exclusion of danger- clause. •! Bell, Com. 75. ous or improper persons among the land- ' Jackson v. Silvernail, 15 Johns. R. holders. It consists in a reservation to 278 ; Jackson w. Harrison, 17 i6. 66 ; Crusoe the proprietor of the quarter- sales, and a dem. Blencome v. Bugby, Black. E. 766; pre-emption right upon every aUenation s. c. 3 Wils. R. 234; Shattuck y. Lovejoy, made by the tenants. Another reason for 8 Gray, E. 204 ; Lynde v. Hough, 27 this reservation in these leases was, that Barb. E. 416. A covenant not to un- it in fact constituted a part of the consid- derlet, without naming the covenantor's eration of the original purchase of the assigns, does not bind an assignee. 4 premises, nothing having been paid by Kent, Com. 130; 4 Eep. 119; Cro. Jac. the tenants upon their receiving the grant 398 ; 2 Cruise, Dig. 7. That a clause of their lands from the patroon. All future prohibiting a transfer to a sub-tenant, in reservations of fines or quarter-sales are whole or in part, without written permis- now prohibited in New York, by the Con- sion, does not extend to the granting of a stitution of 1846. mere privilege or right of way. See Cas- 2 Doe V. Carter, 8 Term R. 61. The tillo v. "Walker, Anth N. P. 2d. ed. 339. valueof agricultural leases, of the duration And in Den dem. Bockover v. Post, 1 of twenty-one years and under, depends so Dutcher, E. 285, Ch. J. Green doubted much upon the personal character of the whether an assignment violated a cove- tenants, that the rule in Scotland is, that nant not to underlet. 25* 294 LAW OP LANDLORD AND TENANT. [CHAP. IX. But a condition not to set, let, or assign over the demised premises, or any part thereof, comprehends under-leases ; for where the condi- tion was, not to let or assign over the premises, or any part thereof, a lease by the tenant, which fell short of his term by only one day, was held to be a breach of the condition.^ A covenant not to let, set, or demise the premises, or any part, for all or any part of the term, restrains an assignment.^ And where the proviso in the lease was, that " if the lessee, his executors, or administrators, did or should assign, or otherwise part with the lease or the premises thereby granted, or any part thereof, /or the whole or any part of the term thereby granted, to any person or persons whomsoever, without the license and consent, in writing, of the lessor, first had and ob- tained for that purpose, the lessor might re-enter ; " and the lessee entered into an agreement with another, to grant him a lease of the premises for the residue of the term, reserving a few days under which possession was given. Lord BUenborough held that the words of the proviso included an under-lease, and that, consequently, such under-lease was a breach of the proviso.^ § 404. A covenant in a lease in fee, that if the lessee or his as- signs should sell, the lessor shall have the right of pre-emption, and one-tenth of the purchase-money, was formerly held to be a valid covenant ; and the estate was declared forfeited, if that was made a condition of the breach of it.* In a subsequent case, however, the Chancellor of New York held, that a condition and covenant iu a lease in perpetuity, — that, upon every sale of the premises, the les- see or his assigns must obtain the consent, in writing, of the owner of the rent and reversion, and should offer him the right of pre- emption, and, if sold after such offer, one-tenth of the purchase- money to be paid to the lessor, — was in restraint of and in the nature of a fine upon alienation, and inconsistent with the spirit of our institutions ; that the remedy, if any, was at law, and not in equity ; and that if the landlord has not secured to himself a 1 Doe V. Harrison, 2 Tenn E. 425 ; E. 234. Where a lessee covenanted not Hoe V. Sales, 1 M. & S. 297. to let or underlet the whole or any part of 2 Greenway v. Adams, 12 Ves. 395; the demised premises, it was held in New Cro. Eliz. 425. The word set, in this case, York not to include an assignment of all was construed to mean an assignment or his right and interest in the lease. Lynde conveyance of the whole term ; on the Hough, 27 Barb. E,. 415. supposition that the other words of the ^ Doe dem. Holland v. Worsley, 1 covenant could not have a distinct oper- Camp. 20. ation and effect without reference to an * Jackson v. Schutz, 18 Johns. E. 174 • assignment. Crusor v. Bugley, 3 Wilson, Jackson v. Groat, 7 Cow. E. 285. SEC. V.J THE COVENANT NOT TO ASSIGN. 295 remedy at law, a court of equity will not interfere to help him.^ But the Court of Appeals in this State have finally determined that all such restraints upon alienation are absolutely void, as repugnant to the estate granted.'^ § 405. Where a lease provided that the landlord should re-enter, in case the tenant should let the premises, or any part thereof, or convey to any person whatsoever, for all or any part of the term, without the license of the lessor ; and the tenant, without such license, took a third person into co-partnership with him, and agreed to let him the back chamber and some other part of the premises exclusively, and the rest jointly with the lessee, and he was accordingly let into possession ; the court held this to be a breach of the proviso, whether the possession was given gratuitously or for rent.^ But a covenant not to underlet is not broken by tak- ing in a lodger, although he have the exclusive possession of a room for, a year or more ; for, as Lord EUenborough said, " the covenant can only extend to such under-letting, as a license might be expected to be applied for, and who ever heard of a license from a landlord to take in a lodger ? " * § 406. Depositing a lease, as security for money, is no breach of a covenant not to assign ; ^ even though the covenant be not to let, set, assign, transfer, or otherwise part with the premises thereby as- signed, or that present indenture of lease.^ Nor can the mere act of advertising the leased premises for sale be construed into a 1 LiTingston v. Stickles, 8 Paige, K. if enforced, the person entering would be 398. in by a forfeiture of condition, and not by " De Peyster v. Michael, 6 N. Y. R. reverter. And, therefore, the court con- 467 ; Oberbagh v. Petrie, ib. 510 ; s. c. 8 elude that where lands are leased in fee. Barb. R. 28. By the common law, re- whatever conditions the lease may con- straints upon the alienation of land could tain, the lessor has no reversion, or.possi- only be imposed by persons having a re- bility of reversion, and cannot impose version, oir at least a possibility of rever- restraints upon the power of alienation by ' sion, therein. And when the Act of the lessee. Per Euggles, J. October 22d, 1779 (1 Jones & V. 44), ' Roe v. Sales, 1 M. & S. 297. If the transferred the seigniory of land from the vendor of a lease, containing a covenant king to the people of this State ; and not to assign contracts to assign his inter- the Act of February 20th, 1787 (1 R. est, it is incumbent on him, and not on L. 70), put an end to all feudal tenures the purchaser, to procure the lessor's li- between one citizen and another, and sub- cense. Lloyd v. Crispe, 5 Taunt. 250. stituted in their place a tenure between He is bound, also, to show that he has ob- each landholder and the people in their tained the lessor's consent. Mason v. 80 vereign capacity, — the entire founda- Corder, 7 Taunt. 9. tion on which the right of the grantor to * Doe dem. Pitt v. Laming, 1 R. & M. restrain alienation formerly rested, was 36. removed. A right of re-entry for non- ^ Doe dem. Goodbehere v. Sevan, 3 payment of rent, or non-performance of M. & S. 353. any other condition, is not a reversion, or * Doe dem. Pitt v. Hogg, 4 D. & R. a possibility of a reversion ; it is not an 226 ; s. c. 1 By. & M. 36. estate in land, but a right of action, and, 296 LAW OP LANDLORD AND TENANT. [CHAP. IX. breach of such covenant.^ If a lessee covenant that he, his execu- tors, or administrators, will not assign without license, and dies, the executor will be bound by the covenant, and cannot sell the premises for the payment of debts, without the license of the lessor .^ And a covenant that the lessee may assign or sell the demised premises, on giving the pre-emption to the lessor, and paying one-tenth of the purchase-money to him, or that the lease shall be forfeited, extends not only to an assignment of the lessee, but to that of his assignee, either by a voluntary assignment, or by operation of law.^ § 407. If the covenant prohibits an assignment to some particular person, it is to be understood of an immediate assignment to that person ; for if the assignment is made to some third person, who subsequently assigns to the prohibited individual, there is no breach of the covenant ; * unless the assignment had been made to such third person with the intent, and for the purpose of his assigning it over.^ But if it be covenanted, " that in case the lessee should suf- fer or permit more than one person to every one hundred acres, to reside on, use, or occupy any part of the premises, the lease should be void," and the lessee lets part of the premises to persons for a year, to cultivate on shares, in the proportion of more than one to each hundred acres, it is a breach of the condition, and de- feats the lease.^ And if the lease contains a covenant that the lessee shall not assign without the permission of the lessor, an as- signment of part of the premises with such consent is not a surren- der, but the lessee still remains liable for every act of the assignee, that amounts to a breach of the covenant.' § 408. But an assignment, either by the lessee or his executor, which is not voluntary, but done by operation of law, is not a breach of the covenant not to assign.^ Therefore, where a lessee, who had so covenanted, gave a warrant of attorney to confess a judgment on which the lease was taken in execution and sold, it was considered 1 Gourtray v. Duke of Somerset, 1 Johns. E. 267 ; Same v. Rich, 7 Johns. R. Ves. & B. 73. 194. 2 Lloyd V. Crispe, 5 Taunt. R. 249 ; 2 ' Jackson dem. Church v. Brownson Term B. 425. 7 Johns. E. 227. 8 Jackson dem. Livingston v. Groat, " Wilkinson v. Wilkinson, Coop. Eq. 7 Cow. R. 285 ; Jackson dem. Lewis, o. R. 269 ; Wetlierell v. Geering, 12 Ves. Schutz, 18 Johns. R. 174. 513 ; Stevenson v. Silvemail, 15 Johns. * Dyer, 45, a. R. 278 ; Jackson v. Corlis, 7 Johns. R. 6 Co. Lit. 223, b. 531 ; Smith v. Putman, 3 Pick. 221. ' Jackson dem. Colden v. BrowneU, 1 SEC. T.] THE COVENANT NOT TO ASSIGN. 297 no breach of the covenant.^ But such execution must be bond fide, for if the tenant give a warrant of attorney to a creditor for the ex- press purpose of enabhng the creditor to take the lease in execu- tion, this will be a fraud and a breach of the covenant ; and if the lease is sold under such an arrangement, the lessor can recover the premises from a purchaser at the sheriff's sale.^ And if the lessee makes a general assignment for the benefit of creditors, by order of a court of law, or judge, it will be valid, and his assignees will not be bound by this covenant, but may dispose of it as they please.^ It would seem, also, that the devise of a term by the lessee is not a breach of covenant not to assign ; ^ although the earlier cases held to the contrary.^ So if a single woman, to whom a lease has been granted with a condition against alienation, take a husband, it is no breach of the condition ; because it is the act of the law which gives the lease to her husband.® Yet, if a lease be made to a hus- band and wife, upon condition that if it come to any other hand than their own, or that of their issue, the lessor shall re-enter ; and afterwards the husband die, and the wife takes another husband, the lessor will have a right to re-enter.^ And if the covenant is merely personal, as that the lessee shall not sell without leave ; his executors, not being named, may sell without incurring a breach.^ § 409. The landlord may guard against such an operation of law by the provisions of his contract, by stipulating that the lease shall not so pass, and render even an involuntary assignment a for- feiture.^ Thus, where one leased a farm for twenty-one years, if the lessee and his executors should so long continue to occupy it, and not to let, assign, or otherwise part with the lease ; and the tenant having become bankrupt, and made an assignment, his assignees sold the lease, it was held that the landlord had a right to enter when the insolvent quit the occupation of the premises.^" And so if the tenant holds his estate under an express condition to keep it 1 Philpot V. Hoare, 2 Atk. R. 219 ; 8 « Sir Francis Moore's Cases, 21. Term R. 57; Doe v. Bevan, 3 M. & S. ' Com. Dig. (Condition), Q. 358. 8 4 Kent, Com. 130. 2 Doe dem. Mitchinson v. Carter, 8 ^ Koe v. Galliers, 2 Term R. 133 ; Da- Term R. 57. ■"s V. Eyton, 7 Ring. R. 154 ; Doe v. 3 Gorring v. Warner, 2 Eq. Ca. Abr. Hawkes, 2 East, R. 481 ; 8 ib. 135 ; Coop- 100 ; 13 Ves. 404 ; 3 M. & S. 353 ; Doe v. er v. Wyatt, 5 Mod. R. 482 ; Garwold v. Powell, 6 B. & C. 308 ; 8 Dow. & Ry. 35. Moorhouse, 1 R. & Myl. 364. * Crusoe v. Bugby, 3 Wils. R. 237 ; ^° Doe dem. Lockwood v. Clarke, 8 Doe V. Bevan, 3 M. & S. 361. East, R. 185. 6 Dyer, 45, b; Cro. EKz. 60; ib. 330, 817. 298 LAW OF LANDLORD AND TENANT. [CHAP. IX. in his own possession, or to cease upon its being taken in execu- tion, the estate will cease upon the premises being taken under an execution, so as to put an end to his occupation.^ § 410. When a license has been once given, the coyenant is thereby/ wholly discharged, and no further consent is necessary to make a subsequent alienation ; because a proviso, or condition, can- not be divided or apportioned by the act of the parties.^ Or if the lease be made to three, with a condition, that neither they nor any of them, shall alien without license, and then the lessor licenses one, this discharges the condition as to all.^ And whether the license be general, or given to only one person in particular, by name, it does not vary this principle ; for the condition being once dispensed with, it is wholly dispensed with ; the provision for making void the lease must exist entire, or not at all, and any sub- sequent assignee may alien without license.* And if the license extends to but part only of the premises, the lessee may afterwards alien the rest without further license.^ But this rule of law may be restrained by the express contract of the parties (as is the case with most of the leases granted in the city of New York), that per- mission to assign the lease once given, shall not operate so as to authorize any subsequent assignment, but that for each subsequent assignment, express permission shall be necessary ; the object of which appears to be, to require each new party to the assignment, to enter into a fresh covenant with the lessor to pay rent, by which means he gets an additional surety for rent upon every fresh license given. § 411. The acceptance of rent by a landlord, after the breach of a condition not to underlet, is not tantamount to a license ; but for any subsequent underletting, the landlord may re-enter.^ And in order to put an end to the condition, the license must be such as is therein contemplated ; as where the proviso requires the consent of the lessor in writing, a parol license is not sufficient either at law 1 Doe dem. Duke of Norfolk v. Hawke, to this provision of law, that the profession 2 East, 481. had always wondered at it, but that it has 2 Bleeckerw. Smith, 13 "Wend. R. 530; been law for so many centuries, that it Dakin v. Williams, 17 Wend. R. 447 ; cannot now be reversed. Jones V. Jones, 12 Ves. R. 186 ; Dickey * Brummel v. Macpherson 14 Ves R V. McCullough, 2 W. & S. 100 ; Dumpor's 173. Case, 4 Rep. 119 ; 1 V. & P. 191 ; 14 Ves. ^ Leeds v. Compton, supra. ITS- ^ Newman v. Rutter, 8 Watts, R. 55 ; " Leeds o. Compton, 1. Rol. Abr. 472. Silver v. Kenrick, 2 N. H. R. 160 • In the case of Doe v. Bliss, 4 Taunt. R. Bleecker v. Smith, 13 Wend. R. 534. ' 731, Lord Mansfield observed with respect SEC. v.] THE COVENANT NOT TO ASSIGN. 299 or in equity ; yet if such parol license has been used as a snare, and under circumstances which amount to fraud, equity -will give relief.^ Or if the condition be not a general restraint of alienation, but permits the lessee to assign in a particular way, as, for instance, by will, an assignee to whom the lease has been assigned, in the permitted way, cannot assign it in any other .^ It may be well to observe also, that although the condition for re-entry may be dis- charged, or a consent to assign be given, the lessee will still be liable for damages on his covenants.^ It was at one time held, that, where there is a right of re-entry upon an assignment or underlet- ting, if a person be found upon the premises acting as a tenant, it is primd facie evidence of an underletting ; and the defendant must show, whether the person was a tenant or merely a servant.* But Lord EUenborough subsequently laid down a rule, which has been followed to this day, that it is not sufficient to prove the defendant a stranger, in possession of the demised premises, and his declara- tion that they were demised to him by another stranger, even if the tenant had covenanted not to part with the possession.^ § 412. We have before noticed, that, in general, a breach of covenant is only the subject of an action for the recovery of damages, and that the lessor has no authority to oust the tenant in any case, unless there be an express authority to re-enter contained in the lease ; ^ the remark applies to this as well as to other cove- nants. And we may here note a distinction which exists between a clause, by which on a breach of covenant, the lease was made absolutely void, and a clause, which in sxich case merely gave the lessor a power to re-enter. In the former case the term was held to be absolutely ended by a breach of contract, and could not be set up again by any act of waiver of the forfeiture ; in the latter, however, as the lease is merely voidable, it might, and still may be affirmed by the acceptance of rent accrued afterwards, or some other act, if the lessor had notice of a breach of the contract at the time. If, therefore, a forfeiture has been incurred by a breach 1 Richardson v. Evans, 3 Mod. R. 218 ; to a breach of any covenant contained in 2 Term R. 425 ; 3 ib. 590 ; Macher o. the lease. Jackson v. Brownson, 7 I. R. The FoundUng Hospital, 1 V. & B. 191. 577 ; Cro. Jac. 521 ; Cro. Car. 188, 580. 2 Lloyd V. Crispe, 5 Taunt. R. 249. The same result follows a general consent 8 Paul V. Nurse, 8 B. & C. 486 ; 2 Man. to assign. House v. Burn, 24 Barb. R. & Ry. 525. ■ The consent of the lessor to 525. an assignment of part of the demised * Doe dem. Hindley v. Rickarby, 5 premises is no severance of the original Esp. 4. lease, but the lessee will still remain hable '' Doe v. Payne, 1 Stark. 86. for every act of the assignee, amounting ° Ante, § 291. 300 LAW OP LANDLORD AND TENANT. [CHAP. IX. of the contract of alienation, the receipt of rent afterwards will affirm the lease, and amount to a waiver of the forfeiture, if the lessor had knowledge of the fact at the time he received the rent.^ And where, in an action of ejectment for the breach of a condition that the lessee should not underlet, in an agreement amounting to a lease, it appeared in evidence, that the lessor of the plaintiff asked the defendant what he would take for his land, and on the defendant naming a price, said, " then let it, and I shall know what it will produce next year ; " it was held, that this was a waiver of the forfeiture on a breach of such condition.^ A lessor, however, who has a right of re-entry on the breach of a covenant not to underlet, does not, by waiving his right on one underletting, lose his right to re-enter on a subsequent underletting.^ § 413. Where this covenant has been once broken by an assign- ment, the lessor's right of action for a breach is not affected by his accepting an assignment of the lease, from the assignee of the lessee.* Nor can this covenant run with the land, for the contrary supposes an assignment, which it is the object of the covenant to prevent.* A court of equity will not, in general, relieve against a forfeiture incurred by an alienation without license.^ But in order that an assignment shall have the effect of inducing a forfeiture, the instru- ment must be valid and effectual in point of law ; accordingly, where there was a proviso in a lease for re-entry in case of an assignment without license, and the lessee by deed assigned all his property, real and personal, to trustees for the benefit of his credit- ors, and was afterwards declared a bankrupt; it was held in England, that the deed of assignment being an act of bankruptcy and void, did not operate as a valid conveyance of the lessee's inter- est under the lease, and did not, therefore, work a forfeiture.^ 1 Clark 0. Jones, 1 Denio, R. 516 ; covenant not to assign without the lessor's O'Keefe o. Kennedy, 3 Cush. R. 325; written consent is not binding upon the Roe dem. Oregon v. Harrison, 2 Term R. lessee's executors ; and they may transfer 425 ; Cro. Car. 511 ; 6 B. & C. 519 ; Cro. a lease even against the lessor's will. Ehz. 572 ; Cowp. 803. Baron ;;. Duncan's Executors, 3 La. R. 2 Doe dem. Henniker v. Watt, 1 Man. 372. & Ry. 694; 8 Bar. & Cr. 308. <= Hill v. Barclay, 18 Ves. 56 ; Wafer 2 Doe dem. Boscawen v. Bliss, 4 Taunt, v. Mocato, 9 Mod. 112. R- 735. ' Doe dem. Lloyd v. Powell, 8 D. & * Hazlehurst v. Kenrick, 6 S. & R. 446. R. 35 ; 5 B. & C. 308. 6 Bally V. WeUs, 3 WUs. R. 33. A SEC. VII.] THE COTENANT TO BUILD, ETC. 301 SECTION VI. THE COVENANT TO BESIDE ON THE PBEMISBS. § 414. The lessee sometimes, also, binds himself and his assigns to reside upon the premises : that is, to make them his fixed habita- tion, tlie place where his political rights are to be exercised, and where he is liable to taxation. This covenant will be broken not only by the tenant's abandoning the premises, personally, but by his doing any act wliereby his residence may become impossible ; as by suffering the premises to be taken and sold under an execution, having first confessed the judgment upon which the execution issued.^ And a lease on condition that the tenant should actually occupy is determined by his assignees taking possession on his bankruptcy.^ This is a covenant running with the land, and will bind an assignee, although the executors and administrators only were named.^ SECTION VII. THE COVENANT TO BUILD AFTER A PEESCRIBED PATTERN. § 415. Although a court of equity will not, in general, decree the specific performance of a covenant, but will usually remit the party to his action of damages for a breach thereof, yet a covenant that the lessee will build a house on tlie demised premises, to cor- respond with the adjoining houses already built, as to its elevation or otherwise, is one which will be enforced in that court.* But where a landlord has dispensed with a covenant in favor of one ten- ant, entered into for the benefit of all, such as to build in unifor- mity, or of a certain elevation, although the lessor may claim damages at law, he cannot have relief by injunction to restrain others, to whom he has not given such license, from infringing the 1 Duke 0f Norfolk v. Hawke, 2 East, ' Spencer's Case, 2 Eep. 16, a ; Tatem B. 481. "• Chaplin, 2 H. Black. 133. 2 Doe dem. Lockwood v. Clark, 8East, * Franklin v. Tuton, 5 Mod. E. 469. K. 185. -A^od see MoSely v. Virgin, 8 Ves. R. 184. 26 302 LAW OP LANDLORD AND TENANT. [CHAP. IX. covenant ; for, if he thinks it right to take away the benefit of his general plan from some of his tenants, he cannot, with any justice, come into equity for an injunction against those tenants, because they are depriyed of the right which he had given them, to have the general plan enforced for the benefit of all.i If land is let to a man, on which he agrees to erect certain buildings, within a certain time, with a power of re-entry to the lessor in case he fail to do so, but no lease to be granted until the buildings are com- pleted ; the landlord may re-enter, or maintain ejectment, if the buildings are not erected within the time limited.^ SECTION VIII. THE COVENANT AGAINST CAEEYING ON OPPENSIVB TEADES. § 416. Another covenant, not infrequently inserted in a lease, on the part of the lessee, is, that he will not carri/ on particular trades upon the premises, nor assign to persons carrying on such trades ; or that he will not carry on any business upon the premises offen- sive to the neighborhood. Sometimes. the covenant goes further, and totally prohibits the carrying-on of any trade or business what- ever. This precaution often becomes necessary, particularly in town leases, not merely for the protection of the premises from injuries which may otherwise be done to them, but likewise to pre- vent their respectability being lessened, and their good-will thereby diminished. And a court of equity will enforce this covenant, and, by injunction, either regulate or restrain the lessee's occupation of the premises, as circumstances may require.^ Covenants of this kind, as they affect the mode of occupation or enjoyment, run with the land ; and the assignee, though not named, will be liable to an 1 Eoper V. Williams, Turn. 18. perceive maybe highly detrimental to the 2 Oldershaw v. Holt, 12 Ad. & El. 590 ; other, although it is not clear that it pro- Doe V. Ekins, Ry. & M. 29 ; Doe v. Brick, duces a serious injury, and it is manifest 1 M. & W. 402. ^ that the extent of the injury is difficult to ' Howard v. Ellis, 4 Sandf. R. 369. he ascertained or measured in damages ; Where the parties by an express stipula- it is the duty of a Court of Equity to re- tion have determined that a particular strain further infractions of the covenant, trade or business, conducted by one, will Per Sandford, V. C, in Steward u. Win- be injurious or offensive to the other, and ters, 4 Sandf. Ch. R. 587 ; Dodge v. Lam- there is a continuing breach of the stipu- bert, 2 Bosw. R. 570. lation by the one, which the court can SEC. Till.] THE COVENANT AGAINST CARRYING ON TRADES. 303 action for damages, or to forfeiture on the condition of re-entry, if he use the property in contravention of sucli an agreement.^ §'417. The general doctrine, with regard to covenants in restraint of trade, is, that all contracts which go to a total restraint of trade, as that a mah will not pursue his occupation, or carry on business anywhere in the State, are contrary to sound policy, and void, upon whatever consideration they may be made. Such contracts must be injurious to the public, and no good reason can be shown why one individual should thus fetter himself, or another should con- tract for the restraint; they are injurious to one party, without being beneficial to the other. But there may be good reasons for allowing parties to contract for a limited restraint, and such con- tracts, if made on a sufficient and reasonable consideration, are valid ; yet, even then, the law presumes them to be bad, until the circumstances inducing the arrangement are ,shown to the court to be reasonable and useful.^ This rule applies, with great propriety, in favor of a landlord whose premises may be injured, and his gen- eral interests suffer by the carrying-on of many trades and opera- tions upon them. And, for this reason, a contract not to exercise a trade, or carry on bxisiness in a particular place, or with a par- ticular person, will be upheld and enforced. As if a lessee cove- nants that he will not let the shop, yard, or other thing belonging to the house, to any one who shall sell coals, and will not himself sell coals there ; and then let the whole house to one who sells coals, there is a breach of the covenant.^ And where a lessee covenanted not to use, or exercise, or suffer, or permit another to use, or exer- cise any trade or business whatever, upon the premises, and then assigned his lease to a schoolmaster, who carried on his business on the premises, the schoolmaster's business was held to be a breach of the covenant.* ' 1 Mayor of Congleton v. Pattison, 10 Cow. E. 307 ; Homer v. Graves, 7 Bing. East, R. 136 ; Brouwer v. Jones, 23 Barb. 735 ; Palmer v. Stebbins, 3 Pick. E. 188 ; E. 153. A recital in a lease, of the pur- Mitchell o. Eeynolds, 1 P. Wms. Ill ; poses for which demised premises are let, Archer v. Marsh, 6 Ad. & El. 959 ; Pyke for example, describing them as now oc- v. Thomas, 4 Bibb, E. 486. The inquiries cupied as a timber yard, and to be occu- to be made to determine the validity of pied as a timber yard, constitutes an a contract in restraint of trade, are: 1. express covenant on the part of the tenant Whether it is a partial restraint. 2. Is it to use them for no other purpose. De upon an adequate consideration. 3. Is Forest v. Byrne, 1 Hilt, E. 43. And is a it reasonable. Holbrook v. Waters, 9 covenant running with the land, binding How. Pr. E. 335. on the assignee. Ih. ' Chinsley v. Langley, 1 Eol. Abr. 427, 2 Chappie V. Brockway, 21 Wend. E. 1. 35 ; 2 Ad. & El. 161 ; 4 Nev. & Man. 158 ; Eoss v. Sadgbeer, *. 166 ; Pierce v. 285. Fuller, 8 Mass. E. 223 ; Noble v. Bates, 7 * Doe dem. Bish v. Keeling, 1 M. & S 304 LAW OP LANDLORD AND TENANT. [CHAP. IX. § 418. But in a case where the lessee coTenanted that he would not do any act upon the premises which might be to the damage, annoyance, or disturbance of the lessor, or any of his tenants, or to the neighborhood, and that he would not permit any person to inhabit the premises who should carry on certain specified trades or business (that of a licensed victualler not being one of them), or any other business that might be offensive, or an annoyance, or dis- turbance to any of the lessor's tenants ; the court held, that the opening of a public-hoiise on the premises was no breach, as it did not appear that such public-house was an annoyance to the tenants, or likely to become so.^ So a covenant not to carry on the busi- ness of a common brewer, or retailer of beer, is not broken by carrying on the business of a retail brewer.^ But a covenant not to carry on the trade of a butcher is broken by selling raw meat, although no animals are slaughtered on the premises.^ And a covenant to occupy as a jobber is broken by occiipying as an auctioneer.* Where several adjoining lots in the city of New York were sold to different individuals by the same proprietor, and the deeds contained a covenant against the erection of any livery-stable, slaughter-house, glue-factory, or any other manufactory, trade, or business, which might be any way offensive to the neighboring inhabitants ; the Court of Chancery held, that such covenant was for the mutual benefit and protection of all the purchasers ; and although a previous purchaser from the original proprietor could not sue thereon at law, yet that a court of equity might protect him, by injunction, against the carrying-on of any noxious business or trade upon the lot of such subsequent purchaser ; and that the business of a coal-yard upon any of the lots is a business offensive 95 ; Doe v. Spry, 1 B. & A. 617. So of a Seymour v. McDonald, 4 Sandf. Ch. R. covenant by the lessor of a brewery that 502. Using a house as =• private lunatic he will not, during the continuance of the asylum was held to be per se no breach, demise, carry on the business of a brewer Wetherill v. Bird, 2 A. & E. 160. or merchant or agent for the sale of ale, * Steward v. Winters, 4 Sandf. Ch. R. in S., or elsewhere, or in any other man- 587. It is no defence to an action to re- ner howsoever, be concerned in said busi- strain the lessees from using the premises ness. Hinde v. Gray, 1 M. & G. 195. in a way which they covenanted not to 1 Jones V. Thorne, 1 B. & C. 715 ; 3 D. do, that the use is not a public or a private & B. 152. nuisance ; nor that it will not deteriorate 2 Simons v. Farren, 1 Bing. E. 126. the premises in value ; nor that the lessees 2 Doe dem. Gaskell v. Spry, 1 B. & have expended large sums, with a view to Aid. 617. In construing a covenant not such prohibited use, which they will lose to carry on an offensive business, much if not permitted to violate their covenant, will depend on the situation of the prem- Dodge v. Lambert, 2 Bosw. R. 570 ; How- ises, and its relation to other buildings, ard v. EUis, 4 Sandf. R. 369 Gutheridge .;. Manyard, 9 C. & P. 129; SEC. IX.] THE COVENANT FOE MODES OF CULTIVATION. 305 to the neighboring inhabitants, within the spirit and intent of the restrictive covenant.^ § 419. If a^ tenant covenant not to carry on a particular trade without the written consent of the lessor, the mere fact of the les- sor's suffering the tenant to carry on one trade on the premises will not afterwards authorize his carrying on another, without a written license.^ Where the engagement is not to trade within a given dis- tance in a town, such distance is to be measured by the shortest way of access by the footpath. Thus, where the assignor of the lease of a public-house in London covenanted that he would not keep a public-house within the distance of half a mile from the premises assigned, it was held that the half mile, as mentioned in the covenant, imported half a mile measured, not in a direct line, but by the nearest way of access between the premises assigned and any public-house afterwards kept by the assignor.^ If a lessee exercise a trade upon the demised premises, by which his lease is forfeited, the landlord does not, by merely lying by and witness- ing the act for six years, waive the forfeiture, as some positive act of waiver is necessary ; but if he permit the tenant to expend money in improvements, to adapt them to the trade, it would seem to be evidence to be left to the jury of his consent to their being so occupied.* SECTION IX. THE COVENANT FOE PAETICULAE MODES OF CULTIVATION. § 420. In leases of farms, there are usually covenants as to the manner in which the farm is to be managed; the course of cropping, 1 Barron v. Richard, 3 Edw. K. 96 ; « Leigh v. Hind, 9 Bam. & Ores. 774 ; g. c. 8 Paige, 351. As to keeping a luna- 4 Man. & Ey. 579. tic asylum, see 6 Car. & Pa. 201 ; 2 Ad. ■* Doe dem. Shepherd v. Allen, 3 & El. 161. And as to preventing a nui- Taunt. 71. Sometimes the prohibition is sance by injunction, see, ante, § 208, note, against turning the premises into an inn. An injunction -will not he granted to re- or a boarding-house ; and the difference strain a breach of covenant, not to carry between them seems only to be, that, in a on a certain business, under penalty of boarding-house, the guest is under an liquidated damages, although the defend- express contract, at a certain rate, and for ant was insolvent ; for plaintiff has a legal a certain period of time ; but in an inn remedy. Vincent v. King, 13 How. Pr. there is no express engagement, the guest, E. 234. being on his way, is entertained from day 2 Macher v. The Foundling Hospital, to day, according to his business, upon an 1 Ves & B 182. implied contract. Willard v. Reinhardt, ( 2 E. D. Smith, R. 148. 26* 306 LAW OP LANDLORD AND TENANT. [CHAP. IX. the expenditure upon the farm of the manure made upon it, and the Kke. These, of course, differ in different sections of the coun- try, according to the course of liusbandry adopted in Jhem. Some- times they are intended to enforce the custom of the country, in reference to what may he considered good husbandry ; at other times, to vary from it ; and, in this latter case, the covenant will, of course, exclude and supersede the custom. And, therefore, where a tenant held the premises under the terms of an expired lease, by which it was stipulated that the tenant, on quitting the farm, should not sell or take away any of the manure in the fold, but should leave it to be expended by the landlord, or his succeed- ing tenant, and the lease contained no stipulation as to the tenant being entitled to payment for such manure, but, by the custom of the country, although the tenant would be bound to leave the manure in like manner, yet he would be entitled to payment for it ; it was held that, as an express stipulation had been made upon the subject, the custom was thereby excluded, and that the tenant was not entitled to be paid for the manure.^ But as far as the cus- tom is not inconsistent with the express stipulations of the lease, it is deemed to be impliedly grafted upon it, and to form part of the contract between the parties.^ § 421. Independent, however, of express covenants for proper cultivation, on the part of a tenant, it is held, that the mere rela- tion of landlord and tenant is a sufficient consideration to raise an implied promise, by the tenant, to manage the farm in a husband- like manner.^ And even where a tenant occupies under an agree- ment, which does not amount to a lease, he is liable, upon the same principle, to an action for mismanaging the farm.* § 422. The common covenants in husbandry are not generally the subjefct of an equitable jurisdiction, for which a specific per- formance can be granted.^ But an injunction has been granted to restrain a tenant from year to year, who, it was said, was eqiially bound as a tenant for a longer period, to manage his farm in a husband-like manner, from removing crops, manure, etc., except according to the custom of the country.^ In another case, where a 1 Eoberts v. Barker, 1 Cr. & M. 808. * Tempest v. Eawlings, 13 East, 18. 2 Button V. Warren, 1 Mees. & Wels. On this subject, see The Tenant's Cove- 466 ; Hindle u. Pollett, 6 Mees. & Wels. nant to repair, ante, § 344. 5^9. 6 Uayner v. Stone, 2 Edw. K. 128. 3 Bailey v. Walker, 5 Term R. 373; , « Onslow v. , 16 Ves. 173. Horsefall v. Mather, Holt, 7; Buck v. Pike, 27 Vert. B. 529. SEC. IX.] THE COVENANT FOE MODES OF CULTIVATION. 307 tenant was enjoined from ploughing up pasture-land, the lease con- tained no express covenant not to convert pasture into arable land ; but the landlord was, nevertheless, held to be entitled to the injunc- tion, on the ground of there being an implied covenant to manage pasture in a husband-like manner.^ Upon the same principle, the court has interfered to restrain a tenant from sowing mustard, saffron, or other deleterious crops, as being contrary to the usual course of husbandry.^ § 423., If a tenant covenants to leave stock of a certain amount upon the premises, and a fair ground of suspicion should arise that he does not mean to perform his covenant in that respect, although compensation in damages might be had for a breach, yet the agree- ment having relation to the sort of enjoyment for which the land- lord has stipulated, after the expiration of. the term, a bill in the nature of a quia timet may be filed.^ And where a man was let into possession of a farm, and paid rent, under an agreement for a future lease for fourteen years, which was to contain a covenant (amongst others) against taking successive crops of corn from the land, and a proviso for re-entry for breach of any of the covenants, but the lease was not in fact executed ; the tenant having taken successive crops of corn from the farm, which would be a breach of the covenant if the lease had been executed, the lessor brought an ejectment, and was allowed to recover. For, untU the lea^e should be executed, the tenant, it was said, held as a yearly tenant, subject to the terms and conditions which, by the agreement, were to be embodied in the lease ; and, being guilty of a breach of one of them, the landlord had a right to re-enter.* 1 Dury V. Molines, 6 Ves. 328. off by Ms consent, held to be no breach of ^ Pratt V. Brett, 2 Mod. R. 62. his covenant. Smith v. Putnam, 3 Pick. 8 "Ward V. Duke of Buckingham, cited R. 221. But the lessor may, under these 10 Ves. 161 ; s. c. 3 Bro. P. C. 93 ; Briggs circumstances, have an action against the V. Oaks, 26 Vert. E. 138 ; 20 *. 315, 233. attaching creditor of the tenant, or one * Doe V. Arney, 12 Ad. & EI. 476. A who purchases with notice of tlie land- lessee for years covenanted. not to carry lord's right. Leland v. Sprague, 28 Vert, off hay from a farm, and a quantity of hay E. 746. Baxter v. Bush, 29, ib. 465. was attached by his creditors, and carried 308 LAW OF LANDLORD AND TENANT. [CHAP. IS. SECTION X. THE COVENANT TO EEDELIYEH PIXTUEES, ETC. § 424. Where fixtures, which are not part of the freehold, furni- ture, or other goods or chattels, are leased together with houses, it is usual to attach a schedule of them to the lease, and to insert a covenant by the lessee to re-deliver them in good condition at the end of the term. The object of this is, to give the lessor a remedy on the covenant at the end of the term, for any damage sustained by their being injured ; for, as he cannot complain of any injury during the existence of the term, because they may be replaced before the end of it, and as the ordinary remedy by an action of trover or replevin merely affects the recovery of the chattels, he would be without remedy for damage done to them without the insertion of such a covenant.^ The covenant sometimes includes a surrender of all the improvements that a lessee may put upon the premises ; and will then embrace every addition, alteration, erec- tion, or annexation made by the lessee during the demised term, to render the premises more available and profitable, or useful and convenient to them.^ 1 A lessee, when sued for breach of his executed by the owuer. Lawrence v. agreement to surrender to the lessor, at Kemp, 1 Duer, R. 363 ; 24 Wend. R. the end of the term, chattels annexed to 379 ; 2 Cush. R. 237 ; 9 Pick. R. 551 ; 10 the premises, but not fixtures, may defend Met. R. 317. by showing that they belonged to another ^ French v. The Mayor, &c., of New person, and were taken from defendant's York, 16 How. Pr. R. 220 ; 2 Man. & Gr. possession, by virtue of a chattel mortgage R. 726. SEC. I.J OP ASSIGNMENTS IN FACT AND IN LAW. 309 CHAPTER X. OF THE TRANSFER OF A LEASE, AST) ITS CONSEQUENCES. § 425. The rights and liabilities of the respective parties to a demise, which we have been considering, are not confined to the immediate parties to the lease, but will be found to attach to all persons, to whom the estate may be transferred, or who shall suc- ceed to the possession of the premises, either as landlords or ten- ants. This principle follows as a necessary consequence of that privity of estate which is incident to the relation of landlord and tenant. Let us first observe the different modes of assignment; and next, the various rights and liabilities connected therewith. SECTION I. OP ASSIGNMENTS IN FACT AND IN LAW. § 426. An assignment of a lease is the transfer of a tenant's whole estate therein, to some third person ; and such a transfer may be made by either of the parties to the lease. A general grant of the reversion passes all the leases to which the property is subject, including the rents reserved, as incident to the grant. But the lessor may assign the rent to become due upon a lease, without assigning the reversion ; or he may grant the reversion, and, by special words, reserve the rent.^ An assignment differs from a lease in this, that by the latter the lessor grants an interest less than his own, reserving to himself a reversion ; but by an assign- ment, he parts with the whole of his interest in the property. An assignment may not only reserve rent to the assignor, but the deed may contain covenants which were not in the original lease to him ; and it may even purport to convey a larger interest than the 1 WiUard v. Tillman, 2 ffiU, R. 274. 310 LAW OP LANDLORD AND TENANT. [CHAP. X. assignor himself possessed.^ If tlae grantor conveys a shorter term, or a less estate than he himself had in the premises ; or if a les- see for life grants a term of ninety-nine years, provided the life should so long continue, this is not an assignment of the freehold, but only a grant of a term ; and will, in neither case, amount to any thing more than an under-lease.^ So where the assignee of a lessee demised the premises for the residue of the term, reserving the delivery of possession at the end thereof, and the intermediate possession in case the buildings were destroyed by fire, the demise was held to be an under-lease, and not an assignment of the term.^ § 427. An assignment is either in fact, by the voluntary act of the parties, or by operation of law. An assignment in law occurs wherever, without a voluntary conveyance, the estate is, upon some particular event, transferred by the mere operation of law : as by marriage, where the husband acquires a right to his wife's lease- hold property and other effects ; or by the sale of a lease under an execution issued against the lessee, when the purchaser becomes the assignee in law of the sheriff. So where a man dies possessed of a term of years, the law vests it in his personal representatives, unless he has disposed of it by will. As to an assignment in fact, we observe that a mere verhal assignment of a lease for years is void under the statute of frauds, which declares, that no estate or interest in lands, other than leases for a term not exceeding one year, shall be granted, assigned, surrendered, or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the party granting or assigning the same, or by his lawful agent, thereunto authorized by writing.* Although an express assignment of a term of years can only exist by deed or writing, it is not necessary that such writing be under seal, even if the lease to be transferred is a sealed instrument.^ But an assign- ment made by the assignor, in blank, and affixing his seal, on the 1 Palmer v. Edwards, 1 Doug. 187, n. ; Hepburn, 8 Sandf. R. 668 ; 2 B. & Aid. Pluck V. Digges, 6 Bligh, N. s. 31 ; Baker E. 168 ; The People v. Robertson, 39 V. Gosling, 4 Moore & S. 539. Barb. R. 9. 2 Earl Derby v. Taylor, 1 East, R. 502. * 2 N. Y. R. S. 134, § 6 ; and see Bolt- 8 Post V. Kearney, 2 Comst. R. 394. ing v. Martin, 1 Campb. R. 318. A lease to a sub-tenant for the residue of ^ Hess v. Fox, 10 Wend. R. 436 ; Hol- the original term, reserving rent to the liday v. Marshall, 7 Johns. R; 211 ;' 6 first lessee, with a right to re-enter for Burr, 2827 ; 1 Campb. N. P. Ca. 318. breaches of covenant contained in the ori- An assignment of a lease under seal must ginal lease, is a sub-lease as between them, also he under seal, in order to constitute and not an assignment, and the lessee may the relation of lessor and lessee between re-enter for breaches of conditions, al- the new parties. Brewer v. Dyer, 7 Cush. though he has no reversion. Linden v. R. 337 ; 11 Mass. E. 488. SEC. I.J OP ASSIGNMENTS IN PACT AND IN LAW. 311 back of the lease, to be afterwards filled up by a third person, which is done accordingly, is neither a deed nor a note in writing within the statute.^ Upon every assignment of a lease, a revenue stamp is required to be affixed, of an equal amount to that which is imposed upon the original instrument; increased by a stamp duty on the consideration or value of the assignment equal to that which is imposed upon the conveyance of land, for similar consider- ation or value .^ § 428. An assignment is usually made by the words grant, assign, and set over, but no particular expressions are necessary for the purpose, provided the intention of the parties sufficiently appears. No consideration need be expressed in it, for the liability of the assignee to pay the rent reserved by the lease is itself a suf- ficient consideration.^ An order drawn by a landlord on his tenant, to pay accruing rent to a third person, operates as an assign- ment of such rent ; and the tenant is bound to pay to such person, whether he has accepted the order or not, and notwithstanding a subsequent notice from the landlord not to pay.* In some cases, also, a transfer will be implied, although an actual delivery of the instrument has not taken place ; as where a lease was sold at atiction, and the purchaser paid the deposit-money, and the vend- or's solicitor prepared the assignment, but would not deliver it until his fees were paid. Lord Ellenborough held that the assign- ment was complete, although the deed had never been delivered to, or accepted by, the purchaser.^ But the transfer of a mere equita- ble interest will not make a man an assignee ; as the delivery and deposit of a lease as security for money, without any written assign- ment: for, though it may create a right in equity, it passes no interest at law.^ 1 Jackson v. Titus, 2 Johns. R. 430. which the order is drawn. Morton v. 2 An act to provide internal revenue, Naylor, 1 Hill, R. 583. &c., passed June 30, 1864, sec. 158. Ante, <> Odell v. Wake, 3 Campb. R. 394. § 170. ^ Doe dem. MarUn v. Roe, 5 Esp, R. 8 Noy's Max. 92 ; 1 Mod. R. 263 ; 2 ib. 105. To vest title in an assignee, there 252. It is unnecessary to inquire whether must be an unconditional delivery of the an assignment passes the legal title, in assignment, where it is delivered to a order to determine whether the assignee third person, to be delivered to the as- may sue in his own name ; for whether signee on payment of the purchase-mo- his title be legal or equitable, he may ney : no title passes by a delivery without maintain an action, if he has the whole payment. Peabody v. Fenton, 3 Barb. interest. Hastings v. McKinley, 1 E. D. Ch. R. 451. But in an action for rent Smith, R. 273. against one alleged to be an assignee, the * Bradley v. Root, 5 J. C. R. 633 ; 12 question is not, whether the defendant is I. R. 279. At law, as well as in equity, assignee by a valid instrument as between an order for value is, per se, an efiuitable him and the lessee, but whether he has assignment to the payee of the fund on held himself forth as such. Indirect proof 312 LAW OP LANDLORD AND TENANT. [CHAP. X. § 429. To constitute an assignee of the lease, it must appear that he claims through, and is in, of the same estate as the person ■whom he succeeds, for if he comes in by an elder title, he is not an assignee.^ But the fact of demised premises being found in the possession of one not named in the lease, raises a presumption that he is in as assignee of the lessee, and not as under-tenant ; especially if it appear that he has paid rent to the original land- lord.^ In a case of debt for rent, stating a demise of a messuage, by the plaintiff to W. H. for one year, and so on from year to year, if they should respectively please, at the yearly rent of £140, pay- able quarterly, and an assignment by W. H. to the defendant ; the plaintiff proved an agreement (signed by himself only), for a lease of the premises by him to W. H. for seven years, at £140 a year ; that no lease had been actually executed, but that W. H. had entered into possession shortly after the date of the agreement, and had paid two quarters' rent, at the rate of £140 a year ; it was held, that this was sufficient evidence of a tenancy from year to year, as stated in the declaration, and in which W. H. had an assignable interest, so as to charge the defendant as his assignee.^ § 430. We have seen, that every estate or interest in lands is transferable, though the interest be future. Thus a term of years, to commence in futuro, may be assigned, for the interest is vested in prcesenti, though it does not take effect till a future time.* Even a possibility of a term is assignable in equity for a good considera- tion, but not so in law ; and though a contingent interest which a husband has in right of his wife, or the possibility of a term,ds not strictly good by way of assignment, yet either will operate as a valid agreement, when for a valuable consideration : but it must be an assignment of that particular thing, and not rest only in intention and the construction of words in a covenant.^ A power coupled with an interest is assignable, though a bare power is not ; there- fore, if a lease be made with an exception of the trees, and a power be reserved to the lessor to enter and cut them down, he may as- sign this power to another person ; but if it be not strictly pursued, is sufficient to establisli the relation of as- ^ Acker v. Witlierill, 4 Hill (N. T.) signee, and to show its termination, and R. 112. ' that a new occupant was received as as- ' Braythwaite v. Hitchcock 10 M & signee. Carter v. Hammett, 12 Barb. R. W. 494. ' ' ■ , 253 ; s. c. 18 ih. 608 ; Armstrong . s 1 Chaworth v. Phillips, Moore, 876 : 6 ^ g Mod. R. 102 : 2 B. Wms 608 East, 289; 3 M. & S. 382; 2 Show. 57. SEC. I.J OP ASSIGNMENTS IN PACT AND IN LAW. 313 the lessee may maintain trespass both against the lessor and his as- signee. And if, in a lease for years, of lands excepting the woods, the lessor grants the trees to the lessee, and assigns the land over to another, the trees do not pass by this assignment to the as- signee.i § 431. An assignment, as distinguished from an under-lease, sig- nifies a parting with the whole term ; but even if this is made over by the lessee, the rent, with a power of re-entry being reserved to the assignor, and not to the original lessor, it will amount to an as- signment and not an under-lease ; and, in such case the original lessor, or the assignee of the reversion, may sue or be sued on the respective covenants in the lease, even though new covenants are introduced in the assignment.^ The proper covenants, on the part of an assignor, are that the indenture of lease is good in law ; that he has power to assign ; to save the assignee harmless from former grants and encumbrances ; and for quiet enjoyment. On the part of the assignee they are, that he will pay rent, and perform the ser- vices and covenants mentioned in the lease, or save the assignor harmless therefrom. § 432. Marriage, as we have said, is an assignment in law to the husband of the wife's chattels real ; and all her terms for years thereby become absolutely vested in him, so that he may sell, mort- gage, or otherwise dispose of them without her concurrence. They are liable, also, to be taken in execution to satisfy his debts.^ If he disposes of the wife's term, reserving rent, the rent, after his death, belongs to his executor and not to the wife.* But if he makes no disposition of them during his lifetime, he cannot devise them by his will ; for the wife, after his death, will take the same in her own right, without administering upon her husband's estate. Yet, if he survives his wife, he takes them all by survivor ship. ^ But, although a husband may assign or mortgage his wife's chattels real, free from her contingent right of survivorship, it must be upon a valu- able consideration ; for, if it be a mere voluntary assignment, it will not bind her if she survives him.^ 1 2 Mod. R. 317 ; God. 128. A gran- ' Co. Lit. 46, h ; 351, a. The law is tee of a reversion of leaseliold premises, otherwise in the State of New Yorlc, who talces an assignment of the lease af- where her separate property is secured to ter the rents liave been assigned to another her by statute. person, may be held liable as assignee of * Bac. Abr. Baron & Feme (C), 2. the lessee, to the assignee of the rent. ^ (^o. Lit. 351, b. Childs V. Clark, 3 Barb. Ch. R. 52. ^ Schuyler v. Hoyle, 5 Johns. Ch. K. 2 WoUaston v. Hakewill, 3 Scott, N. E. 196. 593; 1 Str. 405; Doug. 187. 2T 314 LAW OP LANDLORD AND TENANT. [CHAP. X. § 433. A devisee is also an assignee in law, and, as such, liable to an action upon all covenants in the lease that concern the land, such as to pay rent and repair ; ^ and, in general, he may maintain all such actions as the assignee of a lease ordinarily may, and which have already been mentioned.^ A lease being an interest in lands which a man may dispose of by his will, such disposition, of course, takes effect upon the death of the proprietor, vesting, in the first in- stance, in the executor, by virtue of his ofiice ; and the legatee can- not enter without the consent of the executor ; but, if he dies without making such will, his leasehold property will go to his ad- ministrator by operation of law. At common law, if a person died seized of any species of rent in arrear, neither the heir or executor could maintain an action of debt for such rent ; the heir, because he was a stranger to'the personal contracts of his ancestor, and the executor, because he did not represent his testator as to any con- tract relating to the freehold and inheritance. To obviate this in- convenience, it was enacted by statute 32 Hen. YIII. ch. 37, that an executor or administrator of any person seized of such rents, might maintain debt againSt the person who ought to pay the same, and his personal representatives. The Revised Statutes of New York, in like manner, provide,^ that the executors and administra- tors of every person to whom any rent shall have been due and un- paid at the time of his death may have the same remedy by action or by distress, for the recovery of all such arrears, that their testa- tor or intestate might have had, if living. § 434. An executor or administrator takes as assignee, by virtiie of his office, all leases for years of land, rents, or the like ; corn growing or cut, trees and grass cut and severed, together with all arrearages of rent that are due to the lessor at the time of his death. So that if a lease be made to a man for twenty years, with- out naming his executor, administrator, or assigns, the executor or administrator will, notwithstanding, have it during the remainder of the term.* In the case of a tenancy from year to year, or as long as both parties please, if the tenant die without making a will, his administrator has the same interest in the land which the deceased had ; for whatever chattel interest the intestate had during his lifetime must vest in his administrator, as his legal representative.^ 1 Holford V. Hatch, Doug. R. 184. * Shep. Touch. 468 ; 4 Hen. & Munf. 2 Com. Dig. tit. Covenant (B. 3). 57. 8 N. Y. E. S. 747, § 2L 6 Dog dem. Shore v. Porter, 3 Term K. 13 ; James v. Dean, 11 Ves. K. 393. SEC. I.J OP AN ASSIGNMENT IN PACT AND IN LAW. 315 But an executor or administrator cannot have the trees and grass growing on the ground, any more than the soil or ground on which they grow ; for these belong to the heir. If a lease of land be made for life or years, whereon a house is standing, or timber growing, and the house is prostrated, or the timber cut or fallen down, no matter by what means, the materials of the house and the timber are now become a chattel ; and, therefore, if the lease be without impeachment of waste, it will go to the lessee, and, after his death, to his executor or administrator ; but if the lease be otherwise, it goes to the lessor, and, after his death, to his executor or adminis- trator. But if the timber be cut for repairs only, or if the lessee will employ the materials of the house to build it again, and the lease continues, it may be so employed, and then the executor or administrator of the lessor may not take it.-'- § 435. We observe also that a term of years, when sold by a sheriff under an execution, takes effect as an assignment in law. If a lease is taken in execution against the landlord, the sheriff cannot turn a tenant out of possession ; ^ but it seems he may put a vendee in possession, when he sells a term in possession of the debtor.^ Upon such sale, he must execute an assignment of the lease, in writing, to the purchaser ; and if he merely puts the execution creditor in possession, the debtor may recover it again in ejectment.* Such assignment will be valid, if made at any time subsequent to the return of the execution, provided the sale took place before the writ was returnable.^ When a sheriff takes a lease and fixtures in execution, he must sell the fixtures separately if he cannot find a purchaser for the whole. ^ In making the assignment to the pur- chaser, he need not state the particular interest which the defend- ant has, for he may not be able to ascertain precisely what it is ; it will be sufficient to state that the defendant is possessed of a term of years yet to come and unexpired, and to assign all his interest therein generally. And, in fact, this is the more prudent way of stating the defendant's interest ; for if the sheriff should fail in his particular statement, the purchaser will not have a good title.'^ If the writ be against one of two partners, the sheriff may seize their joint property, although in undivided moieties ; he may, there- 1 Shep. Touch. 169, 471. ^ Doe dem. Stevens v. Douston, 1 B. 2 RumbaU v. Murray, 3 Term E. 298. & Aid. 230. s Taylor v. Cole, 3 Term E. 292. " Barnard v. Leigh, 1 Stark. 43. * Doe dem. Hughes v. Jones, 9 Mees. ' Doe dem. James v. Brown, 5 B. & A. & Wels. 372; 1 Dowl. n. s. 352. 243. 316 LAW OP LANDLOED AND TENANT. [CHAP. X. fore, sell an undivided moiety, and the vendee will be tenant in common with the other partner.^ Where an outgoing tenant agreed to assign the remainder of his term, it has been held that the sheriff, before any actual assignment made, may sell the term under an execution against the tenant, and put upon it the value agreed to be given by the incoming tenant.^ The purchaser be- comes an assignee in law, and so liable upon the covenants in the lease ; while the lessee continues liable, notvrithstanding the lease is taken from him without his consent.^ SECTION II. THE EIGHTS AND LIABILITIES OP AN ASSIGNEE. § 436. A lessee, during his occupation, holds both by privity of estate and of contract. His privity of estate depends upon and is co-existent with the continuance of his term. By an assignment, he divests himself of this privity and transfers it to his assignee ; it re- mains annexed to the estate, into whose possession soever the lands may pass, and the assignee always holds in privity of estate with the original landlord. The privity of contract, however, is not transmit- ted to a purchaser, on an assignment by the lessee ; for his express covenants will, during the whole term, be obligatory upon him and his personal representatives, even for breaches after an assignment and acceptance of rent by the lessor ; * but in the case of covenants in law, after an assignment of the term, no action lies against the assignor.^ § 487. An assignee takes all the interest of the assignor in the thing assigned, whether in possession, or expectancy ; ^ but he takes it subject to all equities to which the original party is subject, and ' Haydon v. Haydon, 1 Salk. 392 ; son, 3 Har. & McHen. 387 ; Buckland v. Holmes v. Mentze, 5 Nev. & Man. 563 ; 1 Hall, 8 Ves. E. 95. , Har. & Wol. 606. 6 Bacheloure v. Gage, Sir "Wm. Jonea, 2 Sparrow v. Bristol, 1 Marsh. 10. 223 ; Cro. Car. 188 ; Enys v. Donnithorne, 3 Auriol V. Mills, 4 Term R. 98 ; 1 2 Burr. 1190 ; Gordon v. George, 12 Ind. Doug. 184. R. 408. * Walton V. Cronly, 14 Wend. R. 64 ; ^ An assignment passes a right to com- Auriol V. Mills, 4 Term R. 94 ; Port v. pensation, under the lessor's covenant to Jackson, 17 Johns. R. 239; Kunckle v. pay for buildings and improvements, Wynwick, 1 Dal. R. 305 ; Moale v. Ty- vphich might he erected on the land. Thompson v. Rose, 8 Cow. R. 266. SEC. II.J THE EIGHTS AND LIABILITIES OF AN ASSIGNEE. 317 must therefore perform all covenants which are annexed to the es- tate so long as he is in possession. For when a covenant relates to, or is to operate upon, a thing in being, parcel of the demise, the thing to be done by force of the covenant is, as it were, annexed to the thing demised, and goes with the land, binding the assignee to performance, though not named : and the assignee, by accepting possession of the land, subjects himself to all the covenants that run with the land.i If it is a covenant concerning a thing not in esse at the time of the demise, but is to be done upon the land, as to build a new wall, the assignee will also be bound, if expressly named, because he is to receive the benefit of it.^ Among the covenants to which the liability of an assignee extends, are the cove- nants to repair, pay rent, taxes, or assessments, if such was the obligation of the lessee ; to permit the lessor to have free passage through the house to two rooms, which had been excepted in the lease ; to cultivate the lands in a particular manner ; supply the premises with a sufficient quantity of water ; or not to carry on par- ticular trades.^ § 438. A lessee may assign his rights and interest in the premises, but cannot thereby discharge himself of his obligations ; for this would be unreasonably to deprive the landlord, without his consent, of the benefit of a contract made with a particular tenant, to whose care and responsibility he trusted when he granted the lease. The les- see, therefore, remains liable upon his original contract after his assignment, and may be sued on it, either by the lessor or his grantee,* even if the landlord has accepted the assignee as his ten- ant, and collected rent from him.^ And the same rule holds with regard to an assignment of part of his estate ; being still liable on 1 VanKensselaeru. Bonesteel, 24Barb. reversion. Simpson v. Easterly, 9 B. & B. 365 ; Blake v. Sanderson, 1 Gray, R. C. 505 ; 6 Bingh. 664. And see, ante, § 332. 262. A conveyance of premises to which 2 Norman v. Wells, 13 Wend. E. 136 ; a demised water privilege is appurtenant, Dunbar v. Jumper, 2 Yeates, E. 74 ; Tay- is sufficient to charge the grantee with lor 0. Owen, 2 Blackf. (Ind.), R. 301; rent, as assignee of the lease of the privi- Plymouth v. Carver, 16 Pick. E. 183 ; lege. Provost v. Calder, 2 Wend. R. 517. Spencer's Case, 5 Rep. 16. As to covenants running with the land, 3 Norton v. Vultee, 1 Hall, R. 384; see, ante, § 260. Jacques v. Short, 20 Barb. R. 269 ; Allen * Barnard v. Godscall, Cro. Jac. 309 ; V. Culver, 3 Den. R. 284 ; 23 Wend. R. Thursby v. Plant, 1 Saund. E. 240 ; Brett 506 ; Harley v. King, 1 Gale, 100 ; 5 Tyr. v. Cumberland, Cro. Jac. 521. 692; 2 Atk. 219; Graves v. Porter, 11 ^ Walton v. Crouly, 14 Wend. R. 63; Barb. R. 592; Jourdain v. Wilson, 4 B. Shaw w. Partridge, 17 Vert. R. 626; Fish- &A. 266; Cocksoni!. Cook, Cro. Jac. 125; er v. Ameers, 1 Brown & Jol. 20; Cro. 3 Wils. 32. A covenant tending to the Jac. 399-521 ; Arthur v. Vanderplank, 7 support and maintenance of the thing de- Mod. E. 198 ; 1 Term E. 93. mised, is annexed to and passes with the 27* 318 LAW OF LANDLORD AND TENANT. [CHAP. X. his covenant to pay the entire rent, for he cannot, by his own act, apportion it.^ Nor can a lessee discharge himself from the implied covenants, by an assignment without the consent of the lessor ; since the original privity of estate existing between them cannot be destroyed without the landlord's concurrence : but an assent may be inferred from the lessor's receiving rent from the assignee, or re- cognizing him in some other way as his tenant.^ And as the assign- ment of a lessee by his own act will not discharge him from his express covenant, so neither will an assignment by the act of the law ; and, therefore, if the lease be taken from him, and sold under a judgment and execution against him, he still remains liable upon all his express covenants.^ § 489. It is a well-established rule of law, that no persons can take advantage of a covenant or condition, except such as are par- ties or privies thereto ; consequently, the assignee of the reversion could at common law neither sue or be sued upon covenants con- tained in a demise, whether for life or years. This right was reserved to the grantor and his heirs, who alone might take advan- tage of a condition broken ; the assignee of the reversion being considered a mere stranger for such purposes.* The principle seems to have followed, as a necessary consequence of the feudal law, which prevented a lord from transferrmg his seigniory without the consent of his vassal ; for it was esteemed unreasonable to sub- ject a feudatory to a new superior, with whom he might have a deadly enmity, without his own approbation. This consent of the tenant was expressed by what was called attorning, or professing to become the tenant of the new lord.^ The doctrine extended to all lessees, whether for life or for years ; and if a man purchased an 1 Brown v. Hare, Cro. Eliz. 617-633- at the time the actual tenant, and the 637 ; Cro. Jac. 308 ; 8 East, E. 314, n. ; lessor has recognized him as such ; and Buckland v. Hall, 8 Ves. E. 96 ; 1 Ves. & against his executors, notwithstanding he B. 11 ; Van Rensselaer v. Chadwick, 24 may have assigned during his lifetime. Barb. R. 333 ; Same v. Gifford, ih. 349. and the rent may hare accrued subse- ^ Wadham v. Marlow, 8 East, R. 316 ; quent to his death. Cro. Jac. 522 : 3 Cro. Jac. 334-523; 1 Saund 240, n (5). Mod. 326. If a lessee underlets a portion of the de- * Co. Lit. 215, a; Milnes v. Branch, 5 mised premises, and the under-tenant is M. & S. 411. recognized as such, and rent demanded of ^ An attornment is the acknowledg- him by the lessor, the lessee and sub-ten- ment by the tenant of a new landlord, ant are not jointly liable to the lessor for ailer a transfer of the premises, and his the rent of the whole premises. Fifty agreement to become tenant to the Associates v. Howland, 5 Cush. 214. purchaser. Lindley v. Dakin, 13 Ind. 3 Hornby v. Houlditch, Andrews, 40 ; R. 888. "When made to a stranger, it is Auriol V. Mills, 4 Term E. 99. An action void. Payne v. Vandever, 16 Kentucky will he on a covenant in a deed against a R. 127. And in Louisiana forfeits the lessee, notwithstanding a third person be lease. Richardson v. Scott, 3 La. R. 345. SEC. II.] THE RIGHTS AND LIABILITIES OF AN ASSIGNEE. 319 estate, with the lease outstanding upon it, and the lessee refused to attorn to the purchaser, or become his tenant, the grant or contract was void, or at least incomplete. But as experience afterwards showed that property best answers the purposes of civil life, when its transfer and circulation are entirely free, this restraint upon alienation was gradually taken off by several English statutes, and more particularly by the statute of 32 Hen. VIII. c. 34, which enabled assignees of the reversion to take advantage of such condi- tions, and gave the tenant the like remedies against the assignee that he would have had against the assignor. By it the privity of contract, together with the privity of estate, were transferred to the assignee of the reversion ; who then stood, with regard to a tenant, in the same plight that the lessor did before he parted with the re- version. § 440. It is said, however, that so far as respects the lessee's cove- nants in law running with the land, the right of the assignee of the reversion, standing on his privity of estate, was complete at common law, independent of any statutory aid. In the Supreme Court of New York, the broad doctrine that an assignee of the reversion may maintain an action against the original covenantor for rent accru- ing after the assignment, whether the immediate conveyance to him was with or without warranty, was, on a review of the cases, fully established.^ So in South Carolina, it was decided, that an assignee under a sheriff's sale, had, at common law, a right td all the advan- tages of covenant running with the land.^ In Massachusetts, also, the assignee of the reversion was allowed to maintain a suit against the assignee of the lessee, upon any such covenants, without the aid of the statute.^ And in Pennsylvania it was held, that the assignee of a ground-rent might bring covenant against the tenant of the land at common law.* § 441. The Revised Statutes of New York now give an assignee the benefit of any agreement contained in the lease assigned ; so that an assignee, whether of the reversion or of the term, may have the 1 "Willard v. Tillman, 2 Hill (N. Y.), falling due afterwards. Abbott u. Hanson, E. 274 ; Witby v. Mumford, 5 Cow. E. 4 Zab. E. 493. 137 ; Kane v. Sawyer, 14 Jolins E. 89 ; ^ McEeady v. Brisbane, 1 Nott & Mc- Demarest v. Willard, 8 Cow. E. 206. And Cord, E. 104 ; Spencer's Case, 5 Coke, 17. see Allen w.' Bryan, 5 Bar. & Cr. 612. By ^ Howland v. CoflSn, 12 Pick. E. 125; a grant of the reversion the rent passes. 2 Mass. E. 460 ; Booth v. Stow, 1 Conn. Noyes's Maxims, ch. 21 ; Payn v. Beal, 4 E. n. s. 244. Den. E. 410. If the lessor grants the re- * Harper v. Fisher, 1 Eawie, 155 ; version he cannot bring an action for rent Miles v. St. Mary's Church, 1 "Wharton, 229. 320 LAW OP LANDLORD AND TENANT. [CHAP. X. advantage of all covenants contained in the lease, whether express or implied. " The grantees of any demised lands, tenements, rents, or other hereditaments, or the reversion thereof, the assignees of the lessor of any demise, and the heirs and personal representative 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, or for the recovery of any rent, or for doing any waste, or other cause of forfeiture, as their grantor or lessor had, or might have had, if such reversion had remained in such lessor or grantor." While the next section provides, " the lessees of any lands, their assigns, or personal repre- sentatives, shall have the same remedy, by action or otherwise, against the lessor, his grantees, assignees, or his or their represen- tatives, for the breach of any covenant or agreement in such lease contained, as such lessee might have had against his immediate les- sor, except covenants against encumbrances, or relating to the title or possession of the premises." ^ " The provisions of these two sec- tions extend as well to grants or leases in fee, reserving rents, as to leases for life and for years." ^ Upon the principle of this stat- ute, the Court of Appeals in New York hold, that an anntial rent-charge, reserved by deed, upon a grant in fee is valid as a rent- charge, notwithstanding there is no reversion in the person entitled to it ; that such a rent is a hereditament, descendible and devis- able for ever, and that a devisee or assignee thereof may maintain an action for its recovery against any person in possession of the land ; for that the covenant to pay such rent runs with the land, and is binding upon the heir or assignee of the grantee by force of the statute, independent of any tenure or reversion.^ 1 The provisions of this statute, it is rights, hoth at common law and under the said in Norman v. Wells, 17 Wend. E. 136, statute, as the first assignee. Hornidge v. are in substance a transcript of 32 Hen. Wilson, 3 P. & D. 641 ; 8 B. & A. 396 ; 8 VIII. ch. 34, and do not extend to collate- Taunt. 715; Fryer v. Coombs, 4 P. & D. ral corenants, but only to covenants touch- 120 ; s. o. 11 A. & E. 403. Under this ing or concerning the thing demised. And statute the grantee of the reversion can in Harbeck v. Sylvester, 13 Wend. R. only take advantage of such covenants as 608, it was decided that the remedies of a run with the land. Dolph v. White, 12 grantee of demised premises are confined N. Y. R. 296. Where a lessor who has to remedies upon the lease ; but see Allen taken the lessee's notes to secure the pay- V. Culver, 3 Den. R. 284. Nor does the ment of rent grants the land absolutely, statute apply to an assignmentof rent in the title to the notes as well as to the land arrear, without a transfer of the lease or passes, unless they have been parted with land. Slocum v. Clark, 2 Hill, R. 475. by the lessor, who will then be personally 2 1 N. Y. R. S. 747, § 23, 24, 25. The liable for the amount. Beebe v. Coleman, assignee of an assignee, as well of a re- 8 Paige, R. 392. version as of the term, is now said, in the ^ Van Rensselaer v. Hays, 19 N. Y. R. later English cases, to have the same 68. In this case, Stephen Van Rensse- SEC. II.] THE EIGHTS AND LIABILITIES OP AN ASSIGNEE. 321 § 442. Nor were the interests of the tenant disregarded in the passage of these acts of the legislature, for they expressly declare, he shall not be prejudiced by payment of any rent to the old land- lord before he received notice of the change of interest ; and the effect of the statute has been to substitute for an attornment, the necessity of giving notice to the tenant before he can be sued by an assignee, for rent accruing after the assignment. After an attorn- ment, or its equivalent notice, the tenant continues to hold upon the same terms that he held under his former landlord,^ the instru- ment of attornment becomes in fact an agreement for a nevs^ ten- ancy .^ Where a man, however, thus attorns tenant to another, he is not thereby estopped from disputing his title ; for he may, by mistake, have attorned to a person who has no title.^ The neces- sity of a formal attornment, in order to complete a grant of the re- version, was finally abolished by the statute of 4 Anne, c. 16, s. 9, which has been generally adopted throughout the United States, so laer, the patroon, father of the plaintiflT, in consideration of certain yearly rents, cov- enants, and conditions contained in the in- denture, granted, bargained, and sold to Jacob Deitz, a certain farm in the county of Albany, to him and his heirs for ever, ■ yielding and paying therefor, yearly and every year, the yearly rent of thirty bush- els of wheat, &c. ; with a clause authoriz- ing the grantor, his heirs or assigns, to re-enter, if the rent should not be paid, and no sufllcient distress could be found on the premises. The elder Van Rens- selaer died, after having devised the reserved rent to the plaintiff; and the de- fendant had purchased a portion of the premises from Deitz, and was in posses- sion thereof. The defendant contended that this covenant for the payment of rent was personal, between the grantor and grantee, or what is usually known as a covenant in gross ; and that consequently, after the death of the original parties, no action to recover rent could be maintained in favor of, or against any persons, except their respective executors or administra- tors. That the law did not permit ar- rangements by which a rent could be reserved, upon a conveyance in fee, and that the reservation did not therefore affect the title to the land, but the con- veyance was absolute and unconditional. But the court held, with the admirable opinion of Judge Denio, that by the con- veyance a valid rent was reserved and charged upon the land, available to the grantor beyond all question, so long as he lived ; that the statute gave to his grantee or devisee, the same remedies which the grantor himself had or might have had, if the reversion had remained in him, and that this right existed independent of any tenure or reversion. And furthermore, that the covenant to pay rent was a cov- enant running with the land, and in this case formed, in fact, the consideration of the grant, and was, consequently, binding upon every assignee of the land ; and that the statute intended to establish a privity of contract, between those holding a de- rivative title, under both grantors and grantees, placing the assignees of both parties, upon grants in fee, where a rent was reserved, upon the same footing which was occupied by the assignees of the parties to a lease for life or years, un- der the statute of Henry VIII., and the re-enactment of it in this country. A right of action for the payment of such a rent passes to the assignee of the rent at common law, independently of the act of 1805, ch. 98; IE. S. 747, §§ 23-25, or of the code ; and is maintainable against the grantee or assignee of the covenantor, by virtue of that privity of estate which sub- sists between the grantee of the land out of which it issues, although there is no reversion in the former or his grantor. Van Rensselaer v. Read, 26 N. Y. R. 558. 1 Per Holroyd, J., in Cornish v. Scarell, 8 B. & C. 471-476. 2 Doe V. Boulter, 6 Ad. & El. 675 ; Doe V. Smith, 8 ib. 255; Cornish v. Scarell, supra. ; Peckham v. Leary, 6 Duer, 494. ^ Gravenor v. Woodhouse, 1 Bingh. 38 ; ■ Gregory v. Doidge, 3 Bingh. 474. 322 LAW OF LANDLORD AND TENANT. [CHAP. X. that an assignment by the landlord is now valid without the cere- mony of an attornment.! The title of a grantee of the rerersion being complete without an attornment of the tenant, he will be en- titled to all arrears of rent that accrue after the execution of the conveyance, and not paid to the grantor, by the tenant, in default of notice.2 But the payment of rent to the grantor, by his ten- ant, before notice of the grant, is binding upon the grantee ; nor will the tenant be liable to such grantee for any other breach of the condition of the demise until he shall have had notice of the grant.^ § 443. Where a covenant running with the land is divisible in its nature, if the entire interest in different parcels of the land passes by assignment to different individuals, the covenant will attach upon each parcel pro tanto, and the assignee will be answerable for his proportion only of any charge upon the land, which was a common burden upon the whole ; and will be exclusively liable for the breach of any covenant which related to that part alone.* The stat- ute extends to the assignee of part of the reversion in all the land ; and to the assignee of the reversion of part of the land ; each of whom may have an action of covenant by virtue of the statute.^ The assignee or grantee of the reversion may sue, though he be not named in the lease ; ^ and if there be a second reversioner, he may, it seems, also sue for any breach affecting the value of his interest, and each reversioner will recover damages according to the extent of the interest affected.^ A grantee of the reversion of part of the ^ Farley v. Thompson, 15 Mass. 18 ; cited by Cowen, J., in Norman v. Wells, Burden v. Thayer, 3 Met. 78 ; Baldwin v. 17 Wend. R. 145, " which run and rest Walker, 21 Conn. 168 ; Cohen v. Pearsall, with the land, he for or against an as- 6 Ala. 542. signee, at common law, though not named. 2 Birch V. Wright, 1 Term R. 378 ; They stick so fast to the thing on which Euckham v. Astor, 3 Ed. Ch. R. 373 ; 1 they wait, that they follow every particle E. S. 789 ; Gibhs v. Ross, 2 Term R. of it." And see Van Rensselaer v. Brad- 487 ; Breeding's Heirs v. Taylor's Heirs, ley, 3 Denio, 185 ; and 5, ib. 454. 13 Kentucky, R. 481. 6 Co. Lit. 215 ; Cro. Eliz. 863 ; 1 Saund. 3 Co. Lit. 215; Cro Jac. 145; IE. S. 241; Simpson v. Clayton, 6 Scott, 469; 739, § 146 ; Farley v. Thompson, 15 Mass. Twyman v. Pickard, 2 B. & A. 105. By R. 26. An attornment to one having no Massachusetts Rev. Sts., chap. 60, sec. color of title is void. Jackson v. Delancy, 22, every person in possession of land, 13 J. E. 587. The tenants taking a lease whether it was originally demised in fee from an adverse claimant of title is a or for any other estate of freehold or for fraudulent attornment and void. Jeckson a term of years, shall be liable for the V. Harper, 5 Wend. E. 246 ; Lawrence v. amount or proportion of rent due from Brown, 5 N. Y. E. 394. the land in his possession, although it be * Astor V. Miller, 2 Paige, E. 64 ; Ste- only a part of what was originally demised, venson v. Lambard, 2 East, E. 575; Com. « T. Eaym. 80; Piatt on Covenants, Dig. Covenant, B. 8 ; Burton v. Barclay, 539. 7 Bing. 745. " Covenants," said Wihnott, ' 4 Burr. 2141 ; Holt. 543 ; 1 Taunt C. J., in Bally v. Wells, Wilmott, 344, 194. SEC. II.J THE RIGHTS AND LIABILITIES OP AN ASSIGNEE. 323 premises cannot, however, bring ejectment on a condition broken ; for a condition is entire, and cannot be apportioned.^ Neitlier can the grantor of part of the reversion take advantage of a condi- tion ; for it is destroyed by the grant, being confined to such con- ditions as are incident to tlie reversion, or for tlie benefit of the estate.^ § 444. An assignee is chargeable, as we have seen, by privity of estate, only upon covenants running with the land ; and, therefore, if the covenant be with the lessee and his assigns, hut the thing to be done is merely collateral to the land, and does not touch or con- cern the thing demised in any way, the assignee will not be charged.^ As if the lessee covenants for himself and his assigns to build a house upon the land of the lessor, which is no part of the demise ; or to pay a collateral sum to the lessor, or to a stranger ; "it will not bind his assignee, because it is merely collateral to, and in no manner touches or concerns the thing that was demised, or that is assigned ; and, therefore, the assignee can no more be charged with it than any other stranger.* Neither will the assignee of a lease, become chargeable with the covenant of a lessor, to pur- chase at an appraisal such permanent improvements as should be erected by the lessee, notwitlistanding he may have gone into pos- session, with a full knowledge of all the circumstances.^ But what- ever the liability of an assignee may be, it continues so long as he remains in possession, either by himself or by his under-tenants, for the possession of his tenant is his possession. Each successive occupant of the premises, other than the original lessee, is also liable for rent to the lessor, by reason of, and for the term of his own possession ; possession is both the foundation and the boundary of such liability.^ § 445." As an assignee is bound by covenants real annexed to the 1 5 Co. 55, b; 2 B. & A. 109. ascertain the amount, is a " continual 2 3 Kent, Com, 123. breach," for which the grantee of the 3 Spencer's Case, 5 Co. 16, b ; Norman reversion should be liable, though it did V. Wells, 17 Wend. R. 136 ; and see, ante, not happen in his time. The breach hap- § 260. pened in the time of the lessor, and he * lb. ; Cro. Jac. 488. See § 460. was unquestionably liable for the whole 5 Coffin 0. Talman, 4 Seld. R. 465. value of the building, but his assignee is There is no case to sustain us in holding, not liable. Per Johnson, J. that the covenant which provides for pay- ^ Carter v. Hammett, 18 Barb. R. 608 ; ment at the end of the term, for buildings s. o. 12 Barb. R. 253. And tlie fact that erected on the demised premises, is a con- the sub-tenant, upon his written order, tinning covenant, running with the land, paid rent to the original landlord, does not or that the non-payment of the amount, or alter the case. lb. failure to name an appraiser, in order to 324 LAW OF LANDLORD AND TENANT. [CHAP. Z. estate, he is also entitled to the advantages of any such covenants as make in his favor ; except where the breach has happened before his own time.i The lessor is, therefore, liable to an assignee of the lease, on his covenants, for quiet enjoyment;^ for farther assur- ance ; ^ to renew the lease, repair the premises, and the like.* And, as a general rule, where covenants running with the land are broken after the land has come into the possession of an assignee, he only can bring an action for the damages arising therefrom ; ^ unless the nature of the assignment to him is such that the assignor is bound to indemnify him against such breaches of covenant.^ For, as to such covenants, even a release by the grantee or assignee will not operate as a discharge to subsequent assignees of the same land.^ But an assignee can only sue for breaches of covenant that occurred in his time, and not for such as were committed before the assignment, which are mere choses in action, and so not assign- able.^ § 446. Upon common-law principles, however, to entitle an as- signee to sue on covenants annexed to his reversion, he must, when the cause of action accrues, have the same estate, as was left in the lord on creating the tenure, if to that alone the cov- enants were annexed ; hence, if the reversion be for years, and the assignee takes a conveyance of the fee, the estate to which the covenants were annexed being merged, the covenants are merged in it. And if two persons are parties on the same side, to a deed of demise, — for example, mortgagor and mortgagee, — of whom one (the mortgagee), has a right to lease, the other (the mortgagor), has not; the latter may either refuse to join with the former in demising, or by joining, admit his own want of title ; for the covenants by the lessee are with the latter only. And though 1 Martin v. Baker, 5 Blackf. (Ind.) R. " Biekford v. Page, 2 Mass. R. 460: 232 ; Cro. Eliz. 863 ; 2 Vern. 423. Kane v. Sooger, 14 Johns. R. 89. 2 Noke V. Awder, Cro. EUz. 373 ; ' Abby v. Goodrich, 3 Day, R. 433. Campbell o. Lewis, 3 B. & A. 392; 3 D. » Com. Dig. Covenant (B. 3) ; Shelby & R. 145. A lessee who assigns his term v. Hearne, 6 Yerg. R. 612. Since the merely is not liable to his assignee for an tortious destruction of buildings on de- eviction by one claiming under the lessor, mised premises, though by a stranger, is except upon an express covenant of war- waste, for which a tenant for years or for ranty. Waldo v. Hall, 14 Mass. R. 486. life is liable to the reversioner, irrespective ■King V. Jones, 5 Taunt. R. 418; Cro. of any express agreement, assignees of a Car. 503 ; 4 M. & S. 188. term for years, may have an action on the * Vernon v. Smith, 5 B. & A. 11 ; 12 case against a stranger, for a negligent East, R. 469 ; 3 Atk. R. 88 ; Spencer's destruction of buildings on the premises. Case, 5 Ref 16 ; Van Horn v. Grain, 1 Cook v. Champlain W. Comp., 1 Den. R. Paige, R. 455. 91. 6 Griffin v. Fairbrother, 1 Fairf. R. 91. SEC. II.] THE RIGHTS AND LIABILITIES OP AN ASSIGNEE. 325 the covenants are available by the mortgagor, being founded upon the condition that he has granted the lease, still they are mere independent contracts, and have no connection with the tenure, to which, as it only subsists between the party demising and the cove- nantor, the mortgagor is a stranger ; therefore, on an assignment of the reversion they do not pass to the assignee, but remain avail- able by the mortgagor.^ § 447. After the lessor has parted with his reversion, he can- not bring an action for the breach of any covenant which has oc- curred subsequent to his grant, except on such covenants as are collateral to, and do not run with the land, for if he might, the tenant would be liable to two actions for the same thing, one in favor of the landlord, and the other of the grantee.^ But a lessor may assign the accruing rent, and the covenant for rent vsitliout the reversion, or the reversion, reserving the rent and the cove- nant for rent ; for rent in arrear is a chose in action, and not assignable, so as to give a right of action in the name of the as- signee ; but rent to grow due is assignable, and a covenant to pay it runs with the land, and passes to the assignee, who -may sue upon it in his own name.^ Eent in arrear is severed from, and forms no part of the reversion ; and does not, therefore, pass to an assignee of the reversion. But rent to accrue is part of the realty, and passes as such, with the estate ; and, therefore, an assignee of the reversion may collect all rent that falls due after his purchase, although the landlord may have assigned such rent to a third per- son before the sale.* And if, during a term, the lessor grants the reversion to another, the accruing rent follows the grant, and he cannot recover it, although the tenant may have promised him pay- ment.^ But payment of rent to him will be good as against the assignee, until the lessee have notice of the assignment; even although the rent be paid in advance.^ § 448. As between the lessor and an under-tenant of the original 1 Webb V Eussell, 3 Term E. 393 ; Quackenbush, 2 Butcher, E. 236 ; Dixon Stokes V. Eussell, ib. 678; 1 H. Bl. E. v. Bush, 21 III. E. 208. 5g2 * Bank of Pennsylvania v. Wise, 3 2 Beeby v. Parry, 3 Lev. 154 ; 1 Saund. Watts, E. 394 ; 5 W. & S. 432 ; Van jj 241 b Wicklen v. Paulson, 14 Barb. E. 654. 3 Willardw. Tillman, 2 Hill (N.Y.).E. ^ Stout v. Kean, 3 Harr. E. 82; 8 294 • Allen v Bryan, 5 B. & C. 512 ; De- Mees. & Wels. 379 ; Payn v. Beal, 4 Den. marest t;. WiUard, SCow. E. 206;Childs K- 405. u Clark 3 Barb. Ch. E. 52; Eyerson w! « Parley u. Thompson, 15 Mass. E. 18; ' Stone V. Patterson, 19 Pick. E. 476. 28 326 LAW OP LANDLORD AND TENANT. [CHAP. X. lessee, there is neither privity of estate nor of contract ; so that, between these parties, there can be no advantage taken of the covenants dependent upon a lease eitlier in law or in deed ; there- fore, the lessor cannot sue an under-tenant upon the lessee's cove- nant to pay rent.^ But the assignee of a lease, who has been recognized as such by the tenant, may sue in his own name for rent, although he has no interest in the reversion.^ An assignor of the lease can have no right of action on any covenant in the lease against the assignee, for he has no residuary interest.^ But a lessee who assigns is entitled to be indemnified by his assignee against the payment of rent, and the performance of covenants in the original lease, since his liability continues, although he is not in possession.* Where, however, an assignee covenants absolutely to pay, and perform all the covenants of the lessee, it is not a mere covenant for indemnity ; but he renders himself directly lia- ble to the lessee upon every default, whether the latter has been called on for rent or not.^ § 449. An assignee of a lease is liable, as we have said, only in respect of his-possession ; he bears the burden while he enjoys the benefit ; but if the whole term of years is not passed over to him, a day only being reserved by the lessee, he is not liable to the land- lord at all on such covenants ; for he is then considered only an under-tenant, and not an assignee.^ As assignee, he is liable only for covenants broken while he remains possessed of the estates ; ^ and, although he assigns over, he is, notwithstanding, liable for all such breaches as occurred during the time of his enjoyment, \ 1 Quackenboss v. Clark, 12 "Wend. R. ment of the lease, cannot afterwards main- 555 ; ante, § 108 ; Holford v. Hatch, Doug, tain an action of debt for rent against the 188. Nor can he maintain an action for originallessee. But if there he covenants use and occupation against the under- for payment of rent in the lease, they re- tenant, unless under an agreement. Jen- main in force, and the lessee is liable, not- nings V. Alexander, 1 Hilt. R. 154. withstanding tlie acceptance of rent from '^ MaflBlt V. Smith, 4 Comst. 126. In the assignee. Fletcher v. McFarlane, 12 this case the lessor had assigned the lease, Mass. E. 43 ; Wall v. Hinds, 4 Gray, E. without the rcTersion, and the lessee paid 256. rent to the assignee, and it was held that " The Farmers Bank v. The Mutual this created such a privity of contract be- Ins. Co. 4 Leigh, E. 69 ; Fulton v. Stuart, tween the tenant and the assignee, that 2 Ham. E. 221 ; Holford v. Hatch, 1 the latter might sue in his own name, for Doug. 186, n. ; Milne v. Branch, 5 M. & rent subsequently accruing under the S. 411 ; 1 Vern. E. 87 ; 1 East, R. 602 : 2 lease. Anst. 413 ; 15 Ves. 265. 3 Hicks V. Downing, 1 Ld. Raym. 99. ' Armstrong v. Wheeler, 9 Cow. E. * Staines v. Morris, 1 Ves. & B. 8; 88; Pitcher v. Tovey, 1 Show. 340; 4 Pember v. Mathers, 1 Bro. C. C. 52. Mod. 71 ; 3 Lev. 295 ; Holt, 73 ; City of 5 Jackson v. Post, 17 J. E. 479. A London v. Richmond, 2 Vern. R. 451 ; lessor who has accepted rent from the Staines v. Morris, 1 Ves. & B. 11 ; Pot u'. assignee of his lessee, after an assign- Jackson, supra. SEC. II.] THE EIGHTS AND LIABILITIES OP AN ASSIGNEE. 327 because the right of action having once vested in the lessor, for breaches committed by him as assignee, cannot be divested by a re-assignment, although the privity of estate may be destroyed between them, and a privity of contract never existed.^ But he is not chargeable for a breach of covenant happening after his assignment, for the privity of estate is wanting ; ^ nor, for the same reason, is he liable upon a breach which happened previous to the assignment to him. As where a lessee covenanted to build and finish a house within a certain time, and, after that time had ex- pired, assigned the lease ; it was held, that this covenant should not bind the assignee, inasmuch as it was broken before the assign- ment was made to him ; though it would have been otherwise if the lessee had executed the assignment before the time specified for finishing- the house had expired.^ It is otherwise, also, where there is a continuing breach ; as if there be a covenant to repair within a certain time after notice, if the lessee does not repair upon notice by the assignee, an action lies, though it was out of repair before the assignment.* Although an eviction out of part of the estate will discharge a lessee from the payment of any rent, the case is different with an assignee ; for if he is turned out of possession of part 'of the premises, he must pay rent for so much of it as he has not been put out of the possession of, being liable upon his real contract in respect of the land.^ § 450. An actual entry upon the demised premises, by an as- signee of the lessee, is not requisite, in order to charge him with the performance of covenants running with the land ; for, by ac- cepting an interest under the conveyance, he incurs all the respon- sibility connected with the estate, as if he had taken possession in fact." The same rule applies to the assignee of an assignee : and, whether the second assignee enter upon the premises or not is unimportant ; for, by the assignment, the title and possessory right pass, and the assignee becomes sufficiently possessed to discharge the prior assignee from the burden of the covenants, and to render 1 Harley v. King, 2 Cr., M. &Eos. 22; * Com. Dig. tit. Coyenant (B). Onslow V. Corrie, 2 Mad. E. 330 ; Valliant ^ Stevenson v. Lambard, 2 East, R. V. Dodemede, 2 Atk. R. 546 ; Treade v. 575. Coke 1 Vern. R. 165. " Walton v. Cronly, 14 Wend. E. 63 ; 2 bong. 451 ; Co. Lit. 3, a, 356, a. Walker v. Reeves, Uougl. 461, n. ; Cock 8 Church-wardens of St. Saviour v. t-. Harris, Ld. Rayrn. 367 ; Odell a. Wake, Smith Burr 1271; 1 Wm. Bl. 351; supa; Williams v. Bosanquet, 1 B & B. Salk. 199 ; fillotson v. Boyd, 4 Sandf. R. 288 ; 4 Taunt. 766 ; 1 Ld. Raym. 367. 616. 328 LAW OF LANDLORD AND TENANT. [CHAP. X. him liable for all breaches of covenant happening after the assign- ment to him.^ But a lessor cannot maintain an action of covenant for arrears of rent, against a party occupying demised premises, charging him as assignee, when in fact he never had an assignment of the lease.^ Possession, however, by the defendant, is sufficient evidence, prm(?/a«e, to charge him as assignee, for the non-pay- ment of rent ; yet he may prove that he is not assignee.^ § 451. When the assignment is by deed, an assignee becomes liable as such, by merely accepting the deed ; but if a man becomes assignee only by operation of law, he is not, in general, chargeable until he actually enters, or does some act showing his acceptance of the lease.* But if a testator dies in possession of a term of years, it vests in the executor ; and, although it be worth nothing, he cannot waive it, for he must renounce the executorship in toto or not at all.^ This, however, applies only where the executor has assets, for he may relinquish the lease if the property of the tes- tator be insxifficient to pay the rent ; and, in case there are assets, to bear the loss for some years, though not during the whole term, he may be bound to continue tenant until the fund is exhausted, when, upon giving notice to the lessor, he may waive the posses- sion.^ § 452. An assignee may always discharge himself from liability for subsequent breaches, both as regards rent and other covenants, by assigning over ; even though it be done for the express purpose of getting rid of his responsibility, and although the second assignee neither takes possession nor receives the lease. ^ As, for instance, by assigning to a beggar ;S a. feme covert;^ or a person who is on the eve of quitting the country for ever, provided the assignment be executed before his departure ; i** and even although 1 Walker v. Reeves, 2 Doug. 461 ; 1 " Rubery v. Stevens, 1 N. & M. 182 ; B. &. P. 21. Hornidge v. Wilson, 3 D. & P. 641 : 4 B. 2 Quackenboss v. Clark, 12 Wend. R. & A. 241 ; 3 Scott, N, R; 613. 555. 6 Woodfall's Landlord and Tenant, 3 WiUiams v. Woodward, 2 Wend. R. 375 ; Astor v. L'Amoreux 4 Sandf R 487; Acker!;. Witherill, 4 Hill (N.Y.),R. 524. 112. An assignee may always rebut the ' Armstrong v. Wheeler, 9 Cow. R. 88 • presumption arising from his occupation. Hurst v. Rodney, 1 Wash. C. C. R. 875' and prove that he refused to accept the 12 Mod. R. 371 ; Childs v. Clark, 3 Barb! lease under the assignment, as where the Ch. R. 52; Armstrongs. Wheeler 9 Cow! assignment was for the benefit of credi- R. 88. ' tors, which did not specifically mention « 2 Atk. R. 546 ; Taylor v Shum 1 the lease. Bagley v. Preeman, 1 Hilt, R. B. & P. 21. ' 196; and see, 7Jos«, §§458, 459. ^ Barnfather w. Jordan, Doue 452- 4 1 Saund. Ill, 203, b; Williams v. Co. Lit. 3, ,,. ' B , Bosanquet, 1 B. & B. 238. i» Onslow u. Corrie, 2 Madd. R. 830. SEC. II.] THE RIGHTS AND LIABILITIES OP AN ASSIGNEE. 329 the assignee receive from the assignor a premium, as an induce- ment to accept the transfer.^ So if the assignment of the lease remains in the hands of the solicitor of the assignor, who has a lien for the expenses of preparing it, or the lease contains a covenant not to assign.^ For the assignment destroys the privity of estate, which was the only ground upon which the assignee was liable ; and though the tenant's liability, on his covenant to pay rent, sub- sists during the continuance of the lease, there is no personal con- fidence reposed in the assignee of the lessee. And as an assignee is liable to the reversioner by reason of his occupation, and not by virtue of any privity of contract, it is not necessary for him to show that he has devested himself of the paper title, or legal right ; it is enough that he is not in possession during the time claimed.^ But an assignment to a nonentity, or person not in exist- ence, possession remaining unchanged, will be unavailable.* And, to divest himself of all responsibility, an assignee must assign all his estate, otherwise he will be liable pro tanto ; for covenants run- ning with the land are, as we have seen, divisible, and he would, therefore, remain liable on a covenant to repair, or to pay rent, as to the part of the premises of which he retains possession.^ § 453. Although the assignee of a lessee who assigns over is liable, both at law and in equity, to an action of covenant for rent accrued during his enjoyment, if an action be brought he may plead, that before any rent was due, he granted all his term to J. S., who, by virtue thereof, entered and was possessed; and this will be a good discharge, without alleging that the reversioner had notice of the assignment.^ Nor can the plaintiff reply fraud in the assignment, unless he can show a trust. And this principle has been so broadly laid down, that Lord Bldon thought the only case in which a question of fraud could arise was, where the as- signor had kept possession of the premises, of which he made a profit, and had made an assignment to avoid responsibility; but even there, if the possession were profitable, there would always be 1 Valliant v. Dodemede, 2 Atk. 546 ; signment, does discharge an assignee's Johnson v. Sherman, 15 Cal. R. 287. liability for use and occupation. McKean ^ Odell V. Wake, 3 Campb. 394; 1 u. Wliitney, 3 Den. E. 452. If an assignee Saund. K. 241, c ; 8 B. &. C. 486. of a lease, who has not covenanted to pay ' Astor V. L'Amoreux, 4 Sandf. E. 524 ; rent, assigns over and takes an agreement Carter v. Hammett, 18 Barb. E. 608 ; 1 from his assignee, to pay rent to him, the B. & P. 23. agreement is without consideration and ^ Taylor v. Shum, supra. void. Stoppani v. Eichard, 1 Hilt. E. 509. 5 Congham v. King, Cro. Car. 221. A « Harley v. King, 1 Gale, 100. general release of the lessee, after an as- 28* 330 LAW OP LANDLORD AND TENANT. [CHAP. X. something on the premises for the landlord to distrain ; for which reason his lordship doubted whether there ever could be such a thing as a fraudulent assignment, and whether an issue on such a point could ever be well taken ; the defendants having, at all times, a right to divest themselves of their interest, by the mere form of an assignment, which drives the plaintiff to take posses- sion 1 § 454. Where the lessee assigned his interest in demised prem- ises, by an indenture executed by both parties, " subject to the payment of the rent, and performance of the covenants and agree- ments reserved and contained in the original lease ; " the assignee took possession, occupied the premises, and, before the expiration of the term, assigned to a third person, and, after the first assignment, the lessee was obliged to pay to the lessor rent, which the assignee had suffered to be in arrear ; it was held that the lessee could not maintain an action of covenant against the assignee, in respect to such breach, the words, " subject to the payment of rent, &c.," being words of qualification, and not words of contract.^ So where u,pon a lease for years, the lessee covenants for himself and his assigns, to pay the rent, so long as he and they shall have the possession of the thing let, and the lessee assigns, and the term expires, and the assignee continues in possession afterwards ; an action of covenant will lie against him for rent in arrear, after the expiration of the term^ for though he is not an assignee strictly, according to the rules of law, yet he shaU be accounted such an assignee as will make him liable to perform the covenants.^ And there is no differ- ence with respect to the executor or administrator of a lessee for years, for they may, like any other assignee, assign the term, and divest themselves of all liability upon the privity of estate, but not upon the privity of contract ; and so, it will be seen, may the as- signees of a bankrupt lessee.* § 456. In New York it is held that the mortgagee of a term, who has never taken possession under the mortgage, is not an assignee of the whole term, or liable for rent in arrear ; because he has not all the estate, right, title, and mterest of the mortgagor, the mort- gage being but a security to the mortgagee, and the legal estate 1 1 BuU. N. P. 154 ; 4 Mod. 72 ; 12 ib. Moore & Scott, 561 : 3 Tyr. 637 • 1 Crom 23; Doug. 764; 1 B. & P. 23; 1 Ld. & Mees. 644. Raym. 367. 8 Bac. Abr. tit. CoTenant (E. 3). ■'■ AVolveridge v. Steward, in Er. 3 * Auriol v. Mills, 4 Term E 94 ■ Esp N. P. 201 ; 2 Madd. Ch. Cas. 880. ' SEC. II.] THE RIGHTS AND LIABILITIES OP AN ASSIGNEE. 331 still remaining in the mortgagor.^ But in England, and those States where the common-law doctrine of mortgage exists, a con- trary rule prevails ; and a mortgagee, although he has had the lease assigned to him as a security merely, is held to be seised of the legal estate, and is liable, as assignee, whether in possession or not.^ And in all cases after a mortgagee has taken possession, he is to be deemed an assignee for all practical purposes ; the same principle having been held to apply where, as mortgagee, he had obtained a fund which had been awarded to the lessor for damages on taking the leasehold premises for public use.^ § 456. An assignee of a bankrupt, as well as the purchaser of a term of years from the sheriff under an execution, are liable for the lessee's covenants ; * but not unless they take possession, assume the management of the premises, or do some other act indicating an intention to accept the assignment.^ Nor will they, in such case, be liable to rent in arrear accrued subsequent to the bank- ruptcy, of premises which had been the bankrupt's ; ^ the bankrupt himself remaining liable upon all his implied covenants, and for all rent becoming due after his discharge.'' Under the bankrupt sys- tem of England, and, according to the provisions of the late bank- rupt law of the United States, the discharge of a bankrupt merely had the effect of discharging him from liability for debts existing at the time of presenting his petition, leaving him liable for those which might arise in future, even when called into being by con- tracts made before the delivery to him of his certificate.^ 1 Walton V. Cronly, 14 Wend. R. 63 ; the assignees took possession of the stock Astor V. Hoyt, 5 Wend. E. 603. of goods in the store, and notified the les- 2 Williams v. Bosanquet, 1 B. & B. sor that they did not intend to accept the 288 ; 5 Com. Law E. 72 ; Flight v. Bent- lease of the store, but they remained on ley, 7 Sim. E. 149. But see Moores v. the premises for thirty-six days, seUing out Clieat, 8 Sim. E. 508, and 1 Beav. 112. the lessee's stock at private as well as at The assignment by an assignee of a term a pubUc sale, vacating the premises, how- of years, of his interest, by way of mort- ever, before the next quarter's rent be- gage as security for a debt, does not divest came due ; and it was held that such an him of his estate, nor destroy the relation occupation did not render them liable as of landlord and tenant between him and assignees of the lease, nor could an action his tenant, if the debt for which the term be maintained against them for use and was mortgaged be paid or satisfied pre- occupation. Journey v. Brackley, 1 Hilt, vious to the accruing of the rent. Evert- E. 447. But see Horwitz v. Davis, 16 sen V. Sawyer, 2 Wend. E. 507. Md. E. 313. 3 Astor V. Hoyt, supra. " Kendricks v. Judah, 2 Caines, E. 25 ; * Doug. 184 ; Carter v. Warne, 4 C. & Sparhawk v. Broome, 6 Binney, 256 ; P. 191 ; 1 Mood. & M. 479 ; Thomas v. Copeland v. Stevens, 1 Barn. & Aid. 593. Pemberton, 7 Taunt. 206. ' Murray v. De Eottenham, 6 Johns. 5 1 Esp. E. 238; 2 H. Black. 319; Ch. E. 52; 4 Den. R. 573. Welsh V. Myers, 4 Campb. 368; Clarke « Thompson v. Hewitt, 6 Hill (N. Y.), V, Hume, 1 Ey. & M. 270 ; Bagley v. E. 254 ; Hall v. Fowler, 6 ib. 630 ; Auriol Freeman, 1 Hilt. E. 196. Under a gen- «. MiUs, 4 Term E. 94. eral assignment for the benefit of creditors. 332 LAW OF LANDLOED AND TENANT. [CHAP. X. § 457. As a general rule, future contingent debts were not affected by a discharge in bankruptcy, although they grew out of contracts or transactions made before the discharge, on the general principle that the creditor, not being able to come in under the assignment, should not be deprived of his remedy against his debtor.^ But the rule now seems rather to depend upon the provisions of each parti- cular bankrupt law enacted. When provisions are introduced, to enable the creditor on the one hand to prove future and contingent claims at a valuation, and on the other to make the certificate a bar to a future suit on such claims, both the express and implied covenants of the bankrupt may be discharged, whether contained in a lease under seal, or any other instrument. Neither the former bankrupt laws of England or America contained provisions of this nature ; but more recent enactments have enabled the creditor to come in for such a dividend, and discharged the bankrupt from all claims existing at the period of bankruptcy, whether due or to become due. Independent of such a provision, the creditor would not be barred of any of his rights, for the recovery of rent accru- ing subsequent to a discharge, except where, in the absence of an express covenant, there has been an assignment and acceptance by the assignee. But, in cases of an express covenant to pay rent, the prior discharge of the lessee, as an insolvent, cannot be resorted to by him as a protection against the claim of the lessor.^ When the assignee accepts the lease, the discharge of the bankrupt is com- plete ; and if he afterwards comes in as the assignee of his own assignee, he will incur no greater liabilities than any other person would in the same^ character.^ And there can be no apportion- ment of rent, so as to make the bankrupt liable for what accrued previous to the bankruptcy.* § 458. Trustees under an assignment for the benefit of creditors are entitled to a reasonable time to ascertain whether property, held under a lease by the debtor, can be made available for the 1 Buel V. Jordan, 6 Johns. E. 126 ; joyment is discharged by a certificate of Mechanics' Bank v. Capron, 15 Johns. R. bankruptcy, though tlie breach happens 567. 'A discharge in bankruptcy, since it after the petition is filed, since the claim reaches all debts which were, or might on the covenant before breach was a con- have been proved under the commission, tingent demand, provable under the act. discharges a covenant to pay off" encum- Jemison v. Blowers, 5 Barb. E. 686. brances on land before conveyed; but ^ Lansing v. Prendergast, 9 Johns. E. does not discharge personal covenants in 128 ; Hamilton v. Atherton, 1 Ashmead a trust deed for uncertain future payments, 67. intended only to protect the trust estate, ^ jjog jg^ Cheeve v. Smith, 5 Taunt, as future taxes. Murray v. De Rotten- E. 800. ham, supra. But a covenant for q^uiet en- * Slack v. Slack, 8 A. & B. 366. SEC. II.J THE EIGHTS AND LIABILITIES OP AN ASSIGNEE. 333 benefit of the creditors or not ; they may, therefore, offer it for sale, and make an experiment to see if tlie lease be beneficial for the estate, without incurring liability.^ But, in general, if they act in such a way as to render the premises of less value to the lessor, or deal with the property as if the lease were vested in them, they will, by such conduct, make themselves personally liable for the payment of rent, and the performance of covenants.^ An action for use and occupation cannot, therefore, be maintained by the les- sor of a tenancy from year to year, against trustees under a deed of assignment for the benefit of creditors, upon an occupation by them, for the purpose of disposing of the insolvent's property, nor unless they have actually occupied the premises beneficially as ten- ants.^ But in a case where the assignees of a bankrupt put up leased premises at auction, and found a purchaser, and received a deposit, but the contract of sale afterwards went off, without the assignees showing any reason why they did not enforce it ; it was held, that, by so doing, they had sufficiently elected to take the estate and interest in the premises out of the bankriipt.* Until some act, however, has been done, by the assignees of the bank- rupt, signifying their election to accept the lease, the term remains in the bankrupt.^ If the assignees refuse to accept the lease, and deliver up the deed, it amounts to a determination of the term ; and, after having accepted the lease, they may rid themselves of future claims for rent by assigning over, as other assignees may.^ § 459. Executors and administrators may sue upon breaches o'f covenant relating to the realty, where such breaches have occurred in the lifetime of the testator, and have diminished his personal estate.' They may, also, sue on covenants in an under-lease, carved out of a leasehold interest ; for wherever a person, having a term of years only, grants an under-lease, he is represented, as regards the covenants therein, by his executors ; and whether the breaches are incurred during the lessor's life, or since his death, they are the only persons who can recover damages from the cove- nantor for non-performance.^ Or if a lessee demises for a longer 1 Hastings v. "Winslow, 1 Holt, 290. ' Hastings o. Winslow, supra. 2 Carter v. Warne, 4 C. & P. 191 ; 1 "^ Briggs v. Lowry, 8 Mees. & "Wels. Mood. & Malk. 479 ; 7 East, 335. A re- 729 ; 1 B. & A. 593 ; 1 Esp. 233. lease of an under-tenant by the assignees '' Ex parte Nixon, 1 Rose, 445. in bankruptcy does not amount to an ac- ' lb. 10 Bing. 51 ; Orne v. Broughton, ceptance of the lease. Hill a. Dobie, 8 4 Moore & S. 417 ; 4 Moore, 532. Taunt. 325. * Piatt on Covenants ; Mackay u. Mack- 8 How V. Kennett, 1 Har. & "Wol. 391 ; reth, 2 Chitty, 461 ; and see Van Rens- 5 Nev. & Man. 1 ; 3 Ad. & El. 659. selaer v. Hayes, 5 Den. E. 477. 334 LAW OF LANDLORD AND TENANT. [CHAP. X. period than his own term, his executor may maintain an action for rent accruing since his decease, upon the privity of contract, though there be no privity of estate.^ As an executor or administrator , may charge others for any debt or duty due the deceased, so will he be chargeable by them for any debt or obligation due from th'^ deceased, and which he might ha%e been charged with during uis lifetime, so far as there are assets of the estate with which to dis- charge the same. The executor is, therefore, chargeable with rent in arrear at the time of the testator's death ; and if his testator had assigned the lease during his lifetime, Ji^is chargeable with the arrearages due before such assignment, but not for those accruing after .^ But if the executor of a tenant from year to year omits to terminate the tenancy, and continues to occupy the premises from year to year, he is liable personally, as well as in his representative capacity, for the rent accruing diiring his occupancy.^ The situa- tion of a receiver is analogous to that of an executor ; he cannot be charged as the assignee of a lease, if he waives the term, the income of which is not sufficient to pay the rent.* § 460. As a general rule, if a man enters into a covenant run- ning with the land, as to build a house, for quiet enjoyment, or the like, and says nothing about his executors or administrators, yet are they bound to the performance of these things after his death, by reason of their privity of estate.^ But the rule is otherwise, when the contract is of a nature entirely personal to the testator or intestate, or intended to be performed by himself alone, and not to bind his representatives. As if a lessee covenants to repair, omit- ting other words, he is only bound to repair during his lifetime, and his executor or administrator is not bound.^ Or if a lessor covenants for himself to discharge the lessee of all quit-rents, he only is bound during life. But, in such cases, if the words, " during the term, " are added, the executor or administrator will be chargeable so long as the term lasts.'' 1 1 Biiigh. N. C. 19, 284. liabilities of an assignee when he takes 2 Shep. Touch. 178,483; Wentworth possession of the demised premises. Pugs- V. Cock, 2 P. & D. 251 ; Lyddall v. Dun- ley v. Aikin, 1 Kern. E. 494. lap, 1 Wils. 4 ; Hyde v. Skinner, 2 P. * Martin v. Black, 9 Paige, R. 641 ; 1 Wms. 197. Barn. & Aid. 593 ; 3 Camp. 340. ^ WoUaston v. Hakewill, 3 M. & G. ^ Tremere v. Morrison, 1 Bing. N. C. 297; Eemyant v. Brembridge, 8 Taunt. 89; 4 Tyr. Ill; Dyer, 14-19; Shep. 191. An executor is considered assignee Touch. 178. of a term demised to his testator from the •> lb. ; Cro. Eliz. 553 ; 3 Wils. R. 29 • timeof probate, though he does not enter; Coffin v. Tolman, 4 Seld. K. 465. but an administrator only assumes the ' Marshall v. Broadhurst, 1 C. & J. SEC. II.] THE EIGHTS AND LIABILITIES OP AN ASSIGNEE. 335 § 461. Although an executor or administrator may be liable on the covenants of a lease, he may, at any time, discharge himself from individual liability, by assigning over ; for, like every other as- signee, he is only personally liable for breaches of covenant happen- ing during his own time, and not for such as were committed by those who preceded him in tlie enjoyment of the estate. But, if he underlets, the occupation of the under-tenant is his occupation, and he becomes personally liable as assignee of the lease.^ After entry he may be charged for a breach, either in his representative character or as assignee. If declared against as assignee, he is chargeable as a tenant in actual possession, and the judgment is de bonis propriis. But in no case is he chargeable beyond the value of the land ; and if tlie rent reserved be of greater value than the land, the rent will be apportioned, and he will be liable only for so much of tlie rent as the premises are worth .^ If, however, the ac- tion is brought against him as executor or administrator, the judg- ment will be de bonis testatoris, even where the breach has been committed in his own time ; for it is the testator's covenant which binds the executor, and as representing hiin.^ § 462. The responsibility of an heir differs in some respects from that of an executor ; for he is only chargeable on his ancestor's covenant when the terms of the covenant specially provide for its performance by the heir, and assets descend to him from the cove- nantor to answer the claim ; * unless he has actually taken posses- sion of the land, and then he may be charged as assignee.^ He is not liable, generally, on a covenant arising merely by implication of law, as on a lease, with a reservation of rent on the words yielding and paying ; ^ but if the heir of the lessor ousts the termor, lie is entitled to an action against such heir, by reason of the privity of estate, upon the implied covenant of the ancestor, that the lessee shall enjoy the term.'^ 403 ; and see Van Eensselaer v. Platner, Fisher v. Ksher, 1 Bradf. R. 335 ; Norton 2 John. Cas. 17. And as to covenants v. Vultee, 1 Hall, E. 384 ; Rubery v. running with the land, see further, ante, Stevens, 1 N. & M. 182; 4 B. & A. 241; § 260. 3 D. & P. 641. 1 Bull V. Sibbs, 8 Term R. 327 ; Horn- ^ Buu. jj. P. 159 ; Cro. Jac. 671. idge V. Wilson, 3 P. & D. 641 ; 1 Saund. * Gifford v. Young, Lutw. 287 ; Shep. R. 112 ; Carter v. Hammet, 18 Barb. 608. Touch. 178, 363 ; Co. Lit. 374, b ; Dyke It is to be understood that the estate of a v. Sweeting, Willes, 585 ; 2 Saimd. 186; testator who was a lessee remains liable 4 T. R. 75 ; 4 East, 492. for rent in due course of administration, if ^4 Term R. 75 ; 1 Salk. 355. the landlord refuses to enter. Martin v. * Newton v. Osborn, Sty. 387. Black, supra, 1 B. & Aid. 593. ' Swan v. Stransham, supra. 2 Matter of GaUoway, 21 Wend. E. 32 ; 336 LAW OF LANDLORD AND TENANT. [CHAP. 2. § 463. The heir of the lessee, as such, can have no claim to the demised premises, unless the lease be dependent upon the life of another, and granted to the lessee and his heirs. The heir will then take as special occupant, and enjoy the same benefits and remedies as a party taking by assignment from the ancestor ; the term, however, will be chargeable in his hands, as assets by de- scent, as in case of lands in fee-simple ; and he will, of course, be subject to the same liabilities, in respect to the tenancy, as any other person who had taken the premises by assignment from his ancestor. So a person taking a term under the lessee will stand in the same situation, in point of right and remedy, as any other as- signee ; and, in respect of the tenancy, he is subject to the same liabilities as other assignees. But a further consideration of the lia- bility of an heir or devisee, to the debts and covenants of the ances- tor or testator respectively, does not properly fall within the limits of this work. SEC. I.J LAPSE OP TIME. 337 CHAP TEE XL THE MODES OF DETERMINING A TENANCY. § 464. Having considered the various methods of creating a ten- ancy, together with the rights and obligations of the respective par- ties during the continuance of the tenancy, we, in the next place, proceed to show how and when it may be determined. This will be found to result, either from a lapse of the time, or the happening of the event, on which the estate is limited ; by means of a notice to quit, when the occupant of the premises holds for no definite period ; by a forfeiture, merger, or surrender of the lease ; by the termination of the lessor's interest in the premises ; or by force of a statute. We propose to discuss each of these topics in its order. SECTION I. BY LAPSE OF TIME. § 465. Where a lease is for the life of either of the parties, or of some third person, the tenancy will expire upon the decease of him on whose life the lease depends. So upon a lease for life, or for a certain number of years, subject to be defeated by the happening of some particular event, the happening of such event will, ipso facto, determine the tenancy.^ And where the lease is for a definite term of years, independent of any contingency, the tenancy will, of course, expire with the term, by its own limitation, at the last moment of the anniversary of the day from which the tenant was to hold, in the last year of the tenancy.^ In all of these cases, de- 1 Ludford v. Barter, 1 T. R. 86 ; Co. ^ Ackland v. Lutley, 9 Ad. & EI. 879. Lit. 216 ; Shep. Touch. 187 ; Doe dem. Where there is a proviso in the lease tliat Jordan v. "Ward, 1 H. Black. R. 79. The upon the non-payment of rent by the les- reservation of an absolute power of revo- see, the term shall cease, the lessor and cation, in a lease of land, at the will of the not the lessee has the option of deter- lessor, is valid. Ex parte Miller, 2 Hill, mining the lease upon a breach of the R. 418. proviso. Reid v. Parsons, 2 Chit. 247. 29 338 LAW OF LANDLORD AND TENANT. [CHAP. XI. pending on the express conditions of the lease, no notice to quit will be necessary, in order to dissolve the relation of landlord and tenant ; for both parties are apprised of their rights and duties, the lease terminates pursuant to contract, and the lessor may at once enter upon the lessee, and resume the possession of his premises.^ SECTION II. BY NOTICE TO QUIT. § 466. A tenancy at will may be determined, either expressly or by implication. The former mode is accomplished by a demand of possession on the part of the lessor, or by a declaration of the lessee that he will hold no longer. But mere verbal declarations to this effect, by the lessee, will not determine the estate, unless he also waives the possession.^ A determination of the will of the lessor may be implied, at common law, from his exercising any act of ownership inconsistent with the nature of the estate ; as if he makes a lease of the land to commence immediately ; or if he enters upon the land and cuts timber, makes a feoffment in fee, or does any other act which amounts to an expression of his will.^ On the other hand, a desertion of the premises by the lessee, or the doing of any other act inconsistent with his estate, as by assigning over the land to another, or the commission of an act of waste, will termi- nate it on the part of the tenant. The same result will be produced by the death or outlawry of either party.* A tenancy at sufferance, The lease of a farm with chattels, for a malce a formal surrender, and that it was certain term, at an entire rent, reserving for the landlord to know who occupied his a power to sell the land during the term, premises. James o. Pope, 19 N. Y. R. is not terminated, as to the chattels, by a 324. sale of the land. Zule v. Zule, 24 Wend. i Cobh v. Stokes, 8 East, 858 ; Jack- R, 76. There was a lease to the defend- son v. Bradt, 2 Johns. R. 169; 5 ib. 128; ants, a mercantile firm, for three years, Ellis v. Paige, 1 Pick. 43 ; 2 Serg. & with the privilege of a renewal. During Eawle, 49 ; 18 Maine, R. 264. the original term, two of the partners re- ^ A tenancy at will is determined by «. tired. The third formed a new firm with tender of the keys, after notice. Chalmers another person, and they continued in v. Vignaud's Syndic, 7 Martin, R. 98. possession of the premises, paying rent " Co. Lit. 55, b ; 67, a ; 2 Lev. 88 ; Ball according to the conditions of the lease, v. CuUimore, 2 Cr., M. & R. 121. for the remainder of that term, and one * 76. ; 5 Co. R. 116; Ellis v. Paige, 1 year afterwards ; it was held that such Pick. 43. A husband and wife were I'es- occupation did not renew or continue the sees of land during their natural lives and original tenancy after the expiration of the the life of the longest liver of them, free of term ; that the old firm was not bound to rent, and the defendant took possession SEC. II.] NOTICE TO QUIT. 339 however, is determined by mere entry ; no demand of possesion or other notice being necessary for the purpose.^ § 467. A tenancy from year to year can only be terminated by a notice to the tenant to remove from tlie premises, or by a surren- der in diie form of law ; and for all purposes of a notice to quit, this species of tenancy is to be considered a tenancy at will.^ If, after the expiration of a term of years, the tenant continues in pos- session by consent of his landlord, the law will imply, in the ab- sence of an express agreement, that the parties have renewed the previous agreement for at least another year ; ^ and, therefore, it is both necessary and reasonable, that, if either party should be in- clined to change his mind, he should notify the other before the expiration of the next or any following year, of his intention to put an end to the tenancy.* § 468. With respect to this notice, there are several important particulars to be observed, — as, in what cases notice is necessary ; when, by whom, and to whom it must be given ; its form and direc- tion ; how it must be served ; and in what cases it is to be consid- ered waived. When a tenant for a year, or any other ascertained period, holds over, no notice is of course necessary, since, without some fresh agreement, express or implied, the tenancy is at an end ; ^ and, therefore, as a general rule, there must be a present existing relation of landlord and tenant, to entitle a party to notice.^ But wherever a person has obtained possession of premises belong- ing to another for some definite period, and the owner, after the expiration of such period, does any act from which it may be in- ferred that he intends to acknowledge him as his tenant, so as to under a verbal agreement with thera to Pr. E. 81 ; Doe dem. Eead v. Eidout, 5 support them and to receive the profits of Taunt. E. 519. If a tenant personally the land over what should be necessary receives notice to quit at a particular day for such support; upon the death of the without objection, it is an admission that husband it was held that the widow was his tenancy expires on that day. Doe v. entitled to recover possession ; for the de- Biggs, 2 Taunt. E. 109 ; Thomas v. Tho- fendant's interest in the lands, under the mas, 2 Camp. 647, 559 ; 13 East, 405. verbal agreement, terminated on the death ^ Webber v. Shearman, 5 Hill (N. Y.), of the husband, as that agreement confer- R. 20 ; Digby v. Atkinson, 4 Campb. E. red no right which could effect the estate 275 ; ante, § 60. of the wife as survivor. And the defend- * Morehead v. "Watkyns, 5 . Kentucky ant on holding over after the husband's E. 228. death, and without the widow's consent, ^ Logan v. Heron, 8 Serg. & Eaw. 459 ; became a trespasser, and was not entitled Cobb v. Stokes, 8 East, E. 358 ; Doe dem. to notice to quit. Torrey v. Torrey, 14 Lilt v. Stratton, 4 Bing. E. 466 ; 2 S. & R. N. Y. E. 480. 50 ; Hamit v. Lawrence, 2 Marsh. E. 368 ; 1 Jackson v. French, 3 Wend. 337. Allen v. Jaquish, 21 Wend. E. 623. •' Moshier v. Eeding, 3 Fairf 478; " Jackson w. Deyo, 3 Johns. R. 422. BraLlley v. Covell, 8 Cow. E. 349; 5 How. 340 LAW OF LANDLORD AND TENANT. [CHAP. XI. create a tenancy from year to year, or at will, such as the receipt of rent accruing after the expiration of the original tenancy, or the like, the party will be entitled to notice before he can be ejected.^ So, also, a tenant for years, who holds over so as to create a ten- ancy from year to year, without any specific act of the landlord, is entitled to notice before he can be ejected ; but the holding-over must be continued for such a length of time after the expiration of the term, as to authorize the implication of an assent on the part of the landlord to such continuance. But where the landlord waited three months and twelve days before instituting proceedings, it was held, he was not chargeable with laches, esiDCcially as it ap- peared that he had attempted to obtain possession without recourse to coercive measures.^ § 469. Where a person has put another in possession with a view to a future tenancy, having done no act acknowledging a regular tenancy, he cannot afterwards eject him without a demand of pos- session, unless some wrongful act has been done by the other party, determining his lawful possession.^ Or, if he enters under a lease which is void by the statute of frauds ; although the receipt of rent will not establish such lease, it will stUl enure as a tenancy from year to year, for all purposes of a notice to quit.* The same result ensues where he comes into possession under an agreement for a future lease, and pays rent ; for he then becomes tenant from year to year.s Yet, if he enters under an agreement for a lease, and continues in possession during the period for which the lease was to be granted, his tenancy ceases at the end of that time, without notice, just as it would have done if the lease had been executed.^ So, also, a tenant who takes possession of more land than he is en- titled to by his lease, and pays rent for the whole, is entitled to notice, as to the part not included in the lease.''' And where a defendant entered upon land with the owner's permission in his lifetime, made improvements, and remained there fifteen years, without any reser- vation of rent ; it was held equivalent to a tenancy from year to 1 Jackson v. Miller, 7 Cow. E. 747 ; 1 B. & C. 448. But see Whiteside u Bedford v. McElheron, 2 S. & E. 49 ; Jackson, 1 Wend. E. 418. Jackson dem. Wood v. Salmon, 4 Wend. * Schuyler v. Leggett, 2 Cow. E. 660 • 327 ; Doe dem. Warner v. Brown, 8 East, Doe dem. Warner v. Browne 8 East e' E. 165 ; 2 B. & A. 724. 165. ' ' ' 2 Eowan v. Lyftle, 11 Wend. E. 616. ^ Thomas v. Wright, 9 S. &. E. 88. 3 Jackson v. Eowan, 9 Johns. E. 830; ^ Doe dem. Tilt v. Stratton 4 Bina Doe dem. Lewis v. Beard, 13 East, 211 ; E. 446. ' Jackson v. Wiley, 9 Jolms. E. 268. SEC. II.J NOTICE TO QUIT. 341 year, and that the heir of the owner must give notice to tlie tenant before bringing ejectment.^ § 470. Tlie interest of a tenant from year to year is not clianged by his death, but vests in his personal representatives, who, there- fore, cannot be ejected witliout a notice similar to tliat whicli would have been required to eject the deceased.^ But the relation of landlord and tenant does not exist between the heir or his tenant, and a purchaser under a judicial sale, for the debt of the ancestor ; hence, neither of the former is entitled to notice to quit from the latter.^ And we may observe that as the statute is intended as much for the benefit of the tenant as of the landlord, if either party wishes to put an end to the tenancy, it may be done as well by notice on the part of the tenant, as of the landlord.* § 471. Notice to quit is unnecessary in any case where the relation of landlord and tenant does not exist. Or, if the tenant has come into possession subsequently to the accruing of the title of the lessor of the plaintiff, and without his consent ; as where a tenant went into possession after a judgment had been recovered, which was a lien upon the land, notice by the purchaser under the judgment was held to be unnecessary.^ And, if being in possession, he enters into a contract to purchase, but fails to complete his purchase, no demand is necessary ; for, by his own act, his interest in the prem- ises has been determined.^ So where a man had obtained posses- sion of a house, without the landlord's permission, and afterwards entered into a negotiation for a lease, which failed, the same rule was held applicable.'' A person who had held lands upwards of twenty years under an indenture, in which he covenanted to keep possession for the owners, and in which the owners agreed to save him harmless, was considered merely as a bailiff and not a tenant, nor entitled to notice.^ So, one who held of a mortgagor, under a parol contract to purchase, was not entitled to notice.® And, 1 Den dem. Mackay v. Mackay, 1 Jackson w. Moncrief, 5 Wend. E. 26 ; May- Penn. 420; Jackson dem. Livingston v. nard's Lessee d. Cable, Wright (Ohio), K. Bogan, 1 Johns. R. 322. 18. For a similar reason, a tenant for life, ^ Doe dem. Shore v. Porter, 3 Term who continues in possession, after the de- E. 13 ; 6 *. 295; 2 D. & E. 706. termination of tlie life estate, is not enti- ^ Jackson v. Eobinson, 4 Wend. E. tied to notice. Livingston v. Taunar, 4 436. Kern. E. 64 ; and see, ante, § 25, and note. * The right to notice to quit is recipro- ' Doe dem. Knight v. Quigley, 2 cal. Hall V. Wadsworth, 28 Vert. E. 410. Campb. 505 ; Doe dem. Parker v. Boul- 5 Bradley v. Covell, 4 *. 349 ; Jackson ton, C M. & S. 148. V. French, 3 Wend. E. 337; Den v. " Jackson u. Sample, 1 Johns. Cas. Adams, 7 Halst. E. 99 ; Pultard v. Hilder, 231. 1 Barn. & Aid. 782. ^ Jackson v. Stackhouse, 1 Cow. K. « Smith V. Stewart, 6 Johns. E. 46, 69 ; 122. 29* 342 LAW OF LANDLOED AND TENANT. [CHAP. XI. although a compensation for the enjoyment of the premises has been received, yet if the relation of landlord and tenant has ceased to exist, notice may be dispensed witli.^ It seems, however, that a reasonable demand of possession is necessary where a party is let into possession under an unqualified agreement for a lease.^ § 472. As a general rule, also, to entitle a defendant to notice, there must be some privity, either of contract or of estate, between himself and the lessor ; for, where a lessee agreed to sell his lease for a certain sum, indorsed his name on it, and delivered it to the assignee, who paid him the consideration-money, and agreed to pay the rent due and to become due on the lease ; it was held to be an agreement for a sale, and that the relation of landlord and tenant did not exist between them, so as to entitle the purchaser to notice.^ So, if a tenant disclaims his tenancy ; accepts a conveyance in fee from a stranger ; attorns to another landlord ; or permits a stranger to take possession of, or exercise acts of ownership over the premises, or is guilty of collusion with such person, to suffer him to take possession in opposition to the landlord from whom he has accepted his lease, the landlord may, in either case, consider him a trespasser, and need not give notice to quit.* But if the acts of the tenant do not amount to a wilful disavowal of the landlord's title, the tenant is entitled to notice ; thus, a refusal to pay rent to a devisee, under a contested will, accompanied with a declaration that the tenant was ready to pay the party who should be entitled to receive it, is not of itself a sufficient disclaimer for this purpose.^ Nor is a notice required in any case of adverse possession. As where a person defended an action of ejectment as landlord, and the occupants suffered judgment by default, the defendant was not permitted to object, that the tenants in possession had not received notice to quit from the lessor of the plaintiff, who claimed adversely to the party under whom the tenants occupied.^ And where the 1 3 East, 260; 10 ih. 165; 2 Johns. K. 10 B. & C. 816 ; Doe rlem. Whitehead u. 75. Pitman, 2 Nev. & M. 673 ; post, § 522. •■^ 9 Johns. R. 330 ; 10 ib. 335 ; 13 East, '- Tuttle v. Eeynolds, 1 Verm. E. 80 ; 210 ; 2 Taunt, 148. In New Jersey, a no- 3 ib. 26 ; 13 Peters, 1 ; 6 Johns, 272 ; Cal- tice has been held to be necessary in all vert v. Frowd, 4 Bing. R. 557. Where a oases of uncertain tenancy. Den v. Drake, tenancy trom year to year is created by 2 Green, E. 523. the agreement of the parties, it continues 3 Jackson dem. Eerris v. Fuller, 4 until terminated by a legal notice. The Johns. E. 215; Jackson v. Kingsley, 17 estate does not depend upon a continuance *• 158. of possession ; for the tenant cannot put * Jackson u. Wheeler, 6 Johns. E. 272; an end to the tenancy or his liability for 3 ih. 422 ; Sharpe v. Kelley, 5 Denio, 431 ; rent, by withdrawing from the occupancy. Meriman's Heirs v. Caldwell's Heirs, 8 Pugsley v. Aikin, 11 N. Y. E. 494. Ky. E. 34; Doe dem. Grubb v. Grubb, " Doe dem. Cheese v. Creed, 2 Moore & P. 648 ; Cowp. 622. SEC. 11.] NOTICE TO QUIT. 343 grantor of a lot of land remained in possession for twenty-seven years, and no act of ownership on the part of the grantee was shown ; it was held, that there was no relation of landlord and ten- ant subsisting between the grantor and those claiming under the grantee, and that the defendant was not entitled to notice to quit.^ § 473. If the landlord accepts another person as tenant, or does any other act which amounts to an assent on his part that there shall be a determination of the tenancy, the necessity of giving notice on the part of the tenant is dispensed with.^ As, for instance, where the landlord, in the middle of a quarter, accepted the key of the house, and, according to the lease, it had been agreed that the rent should cease upon the tenant giving up possession, no notice was requ.ired.^ But in a case where the tenant had quit the premises before the year was out, and neglected to give his land- lord notice, and the landlord sued for a whole year's rent, the tenant set up in his defence, that after he quit the premises the landlord put up a bill in the window, and endeavored to let the house ; it was held, that such an act on the part of the landlord was only for the benefit of the tenant, and no evidence that the landlord thereby consented, that the tenancy should be put an end to ; but that it required other circumstances to be shown, evincing conclusively that such was the landlord's intention.* § 474. According to the English law, a mortgagor in possession, being only a tenant by sufferance, is not entitled to notice ; nor, if he lets a person into possession as tenant from year to year, is such tenant entitled to notice, either from the mortgagee or his assignee ; and this, whether the tenant has been let into possession before the assignment or after .^ And the same rule prevails in Massachusetts, Connecticut, Pennsylvania, and North Carolina.^ A different rule, however, applied in New York, even previous to the Revised Statutes ; for a mortgagor was held entitled to notice before an ejectment, on the ground of privity of estate, and the tenancy at will, which existed by implication ; although the rule, it was said, did not apply to the case of an assignee of the mortgagor, because 1 Jackson dem. Bowen u. Burton, 1 ^ Keech v. Hall, Doug. E. 22; Thun- "Wend. R. 341. ^^^ '"■ Belcher, 3 East, R. 448. 2 Graliam v. Anderson, 3 Har. B. 364 ; " Groton o. Roxbury, 6 Mass. R. 50 ; Sparrow v. Hawkes, 2 Esp. N. P. C. 504. Rockwell o. Bradley, 2 Conn. R. 1 ; s Whitehead v. Clifford, 5 Taunt. R. Wakeman v. Banks, ib. 445; Serg. & 5]^g Rawle, 811; Den v. Bennett, 4 Iredell, * Eedpath v. Roberts, 3 Esp. 282 ; 122. Sehv. N. P. 1289. 344 LAW OF LANDLORD AND TENANT. [CHAP. 2;i. there was no privity between him and the mortgagee. ^ But the whole doctrine of notice, in mortgage cases, is now entirely super- seded in that State by the Revised Statutes ; and the action of ejectment itself, by a mortgagee or his assigns, is abolished.^ § 475. As to the time when notice must be given, the common law requires that, in all cases of a tenancy from year to year, there shall be a notice of at least half a year, not merely six lunar months, but one hundred and eighty-three days,^ or six calen- dar months, ending with the period of the year at which the tenancy commenced,* before an ejectment can be brought against the ten- ant. This rule is said, by Chancellor Kent, to prevail in Ken- tucky, as well as in Tennessee, North Carolina, and Yermont.^ In Massachusetts, it was said, the common-law rule of six months has not been adopted,^ but that, in all cases of uncertain tenancy, the parties„must give to each other reasonable notice of an intention to terminate the estate ; ' and in one case, a notice of sixty days was held sufficient.^ In Pennsylvania, the notice is understood to be one of three months, in all cases ; as well without as within the statute of that State, passed in the year 1772.^ The Revised Statutes of New York provide, " wherever there is a tenancy at will or by sufferance, created by the tenant, holding over his term, or otherwise, it shall only be terminated by the landlord's giving one month's notice, in writing, to the tenant, requiring him to remove therefrom." ^° And for the purpose of notice, a tenant from year to year is included in the phrase, " tenancy at will," as iised in this statute.ii In Michigan, all estates at will may be determined by either party, by three months' written notice to the other; and when the rent reserved is payable at periods of less than three 1 Jackson v. Hopkins, 18 Johns. E. all estates at will may be determined by 487; 2 ib. 75; 4 ib. 215; 4 Cow. E. 566. either party, by three months' notice in ^ 2 E. S. 312, § 57. writing; and in cases of neglect or refusal s Gulliver v. Burr, Bl. E. 596 ; Eight to pay rent due on a lease at will, fourteen V. Darby, 1 Term E. 159. days' notice, in writing, to quit, is suffi- * Doe V. Porter, 3 Term R, 13. cient. 5 4 Kent, Com. 113; Nichols v. Wil- ^ Logan v. Herron, 8 Serg. & Eawle, liaras, 8 Cow. E. 13 ; Hanchet v. Whit- 458 ; Hutchinson v. Potter, 1 Jones, 472. ney, 1 Verm. E. 311 ; Higgins v. Beecroft, The same rule prevails in South Carolina. 1 Dana, R. 30; Trousdale v. Darnell, 5 Godard o. R. E. Co. 2 Eich. 846. But Yerg. 431 ; Den v. Mcintosh, 4 Iredell, when the object is to take proceedings to 291. obtain possession for the non-payment of f Eising V. Stannard, 17 Mass. E. 287. rent, fifteen days is sufficient in Pennsvl- ' ElUs V. Paige, 2 Pick. R. 71 ; Coffin vania. j;. Lunt,. 2 ib. 70. And, see Gen. Sts. i" 1 E. S. 745, § 7. c. 90, § 31. 11 Bradley v. Covell, sup}-a. Prouty v. * Cutler V. Winsor, 6 ib. 335. But Prouty, 5 How. Pr. R. 81. In an able ^ now, by the statute of that State of 1835, opinion of Judge Sibley. SEC. II.] NOTICE TO QUIT. 345 months, the time of such notice will be sufficient, if it be equal to the interval between the days of payment. And in all cases of neglect or refusal to pay rent, due on a lease at will, fourteen days' notice to quit, given by the landlord, is sufficient, in the latter State, to determine the lease. ^ § 476. The notice may be given to quit on a particular day ; or in general terms, at the end of the current year of the tenancy, which will expire next after the service of the notice.^ The latter form of expression should always be used, when the landlord is ignorant of the period when the tenancy commenced ; and it is preferable, even when the commencement of the tenancy is known, as it provides against any misapprehension of the exact day when the tenant entered. For when a term of years has expired, and a new year has been entered upon, the parties have a right to hold each other to the tenancy for the whole of that year, and the time required for quitting must expire with the current year. And as neither party has a right to put an end to the tenancy before the expiration of the year, if the occupation goes beyond that period, a new year is entered upon, and a right to enjoy it arises.^ § 477. But if a particular day is mentioned in the notice, it must correspond with the day of the commencement, and not of the con- clusion of the tenancy ; for the tenant is not obliged to quit so long as his right of possession continues, and this right is not deter- mined until the year is fully completed. It must be the anniver- sary day of commencement ; the next, or any subsequent day, will not be sufficient.* If even a special agreement is made between the parties, empowering them to determine the tenancy by a shorter notice than the one required by law, or obliging them to give one for a longer period, the notice must, nevertheless, expire at the end of the current year of the tenancy, unless some agreement to the contrary is made. Though, if it be not a tenancy from year to year, determinable at a quarter's notice, but a demise "/or one year only, and then to continue tenant, and quit at a quarter's notice, " the notice may expire at the end, though not in the middle of any quarter.^ 1 R. S. of MiuMgan of 1838, 22, 226. Notice to quit "within fourteen days from 2 Doe dem. PliiSps v. Butler, 2 Esp. date," served more than fourteen days be- j{, 589. fore action brought, is sufficient under 3 Savage v. Dupuis, 3 Taunt. 410; 3 Mass. E. S. c. 60, § 26. Johnson v. Stew- Wils. 25; Jackson v. Bryan, 1 Johns. R. art, 11 Gray, R. 181. 322; Hanchet v. Whitney, 1 Verm. R. '' Doe dem. Pitcher v. Donovan, 1 811. Prouty V. Prouty, swpra. Taunt. 585; Kemp v. Derrett, 8 Campb. * Doe dem. Spicer v. Lea, 11 East, R. 511. 312. Steward v. Harding, 2 Gray, R. 835. 346 LAW OP LANDLORD AND TENANT. [CHAP. SI. § 478. When the tenancy is for a short period, as for a quartei', a month, or a week, the length of the notice must be regulated by the letting, as a month's notice for a month's letting, and a weekly notice for a weekly letting ; ^ but the same principle governs such a tenancy as regulates a tenancy from year to year, the expiration of the notice must correspond with the expiration of the month or week.^ Therefore, where the premises were taken under an agree- ment, by which the tenant was to be always subject to quit at three months' notice, it was held by Lord Ellenborough, that a quarter's notice must be given, expiring at the same time of the year at which the term commenced, or at any corresponding quarterday ; ^ for that justice and good sense required the length of the notice to vary with the nature of tlie contract and the character of the estate. However, if the tenant, at the time of the delivery of the notice, assents to the terms of it, it will waive any irregularity as to the period of its expiration. But the words, " I pay rent enough already, and it is hard to use me thus, " do not amount to an acceptance of such a notice.* A tenant sometimes enters upon dif- ferent parts of the land at different periods of the year, although all are contained in one demise ; notice must, in that case, be given with reference to the substantial time of entry, that is, to the time of entry on the substantial part of the premises ; though the ten- ant, it is said, will be obliged to quit the particular parts only at the respective times of entry thereon.^ This substantial time of entry must, in general, be determined by the times when the rent is payable ; but it has been held to depend, either \ipon the general custom of the country where the lands lie, or upon the relative value and importance of the different parts of the demised prem- ises ; and of these facts it is the province of a jury to determine.^ § 479. The notice generally runs in the name of the person to whom possession is to be given; but it is not material that he should be named.^ When two or more persons are interested in the premises, as tenants in common, notice by one, on behalf of him- self and his co-tenants, will be valid only so far as his own share is 1 Doe clem. Campbell v. Scott, 6 Bing. ^ x)oe dem. Strickland v. Spence, 6 3S2 ; Sandford v. Harvey, 11 Cush. R. 93. East, 120. 2 Anderson ;;. Prindle, 23 Wend. R. ^ Doe dem. Daggett v. Snowdon, 2 616 ; Doe dem Parry v. HazeU, 1 Esp. N. Black. 1221 ; Doe dem. Bradford v. Wat- P, C. 94; 4 T. R. 361 ; 3 B. & C. 89. Idns, 7 East, 551 ; Doe dem. Heapy v. '•> Kemp V. Darrell, 3 Campb. 86. Howard, 11 East, 498. ^ Oakapple dem. Green v. Copons, 4 ' Bailey v. Poster, 8 C. & B. 215. Term E. 361. SEC. 11.] NOTICE TO QUIT. 347 concerned, unless he was acting at the time under the authority of tlie otlier parties mentioned in the notice.'^ And wliere they are interested as joint tenants, the notice need not be signed by all ; but the act of one is supposed to be for the benefit of the others, and is sufficient when acting on their behalf. The lessee holds of all, so long as he and all shall please ; and, as soon as any one of the joint tenants gives notice to quit, he in fact puts an end to the tenancy.^ If they have appointed an agent, who gives the notice on behalf of all, under an authority derived from some only of the joint owners, it is sufficient, if the other owners subseqiiently recog- nize his authority.^ But where joint lessors are partners in trade, notice by one, in the name of all, is good, for it will be presumed he had authority from his partners.* § 480. Notice hy an agent of an agent is not sufficient, without a subsequent recognition by the principal ; ^ nor by a mere agent to receive rents, unless he has aiithority to let as well as to receive.^ A receiver appointed by the Court of Chancery, with a general authority to let lands from year to year, has also authority to deter- mine such tenancies, by notice to quit ; for if he has power to let, he must, necessarily, have the power of determining how long he will let.'' So an officer of a corporation may give notice, without an express authority for doing so, if the corporation afterwards adopts the act of its officer.^ § 481. The notice must he given to the immediate tenant or his assignee.^ A lessor cannot give a valid notice to a sub-lessee, nor an under-tenant to the original landlord, since there is neither privity of contract nor of estate between them.^" The landlord's notice to his tenant will enable him to recover the premises against an under- 1 Doe V. Chaplin, 3 Taunt. 120 ; Doe * Doe dem. Elliot v. Hulme, 2 Man. & V. Baker, 8 Taunt. 241. Ey. 433. - Doe dem. Joliffe v. Sybourne, 2 Esp. ^ Doe dera. Eliodes v. Eobinson, 3 677 ; Doe v. Summerset, 1 B. & Ad. 135; Bingh. N. C. 677. 2 Man. & Ey. 433 ; 3 Taunt. 120 ; 7 M. & "^ Doe dem. Manans v. Mizen, 2 Mood. W. 139 ; Asliu v. Summerset, 1 B. & Ad. & Eob. 56. Wliere aided by the aclcnowl- 125 ; Alford v. Vickery, 1 C. & M. 280. edgment of an attorney, clear proof that The entry of one joint tenant or tenant he was the attorney must be given. Eey- in common, enures to the benefit of all. nolds v. Eoe, 1 C. B. 711. Young V. Adams, 16 Kentucky, E. 127. ' Wilkinson v. Colley, Burr. 2694; ^ Goodlittle dem. King v. Woodward, Doe dem. Marsaek ' v. Eead, 12 East, 3 B. & A. 689. But see this position ques- 57-61. tioned in Doe dem. Mann v. Walters, 10 * Doe dem. Dean of Eochester v. B. & C. 621, where it is held that the agent Pierce, 2 Campb. R. 96. should hare his authority at the time the *> Doe v. Williams, 6 B. & C. 41. notice begins to operate, and that a subse- i" Pleasant v. Benson, 14 East, 234 ; quent recognition will not be sufficient. A Eoe v. Wiggs, 2 N. E. 330. similar doctrine is held in Eight v. Cuthell, 5 East, 491. 348 LAW OP LANDLOBD AND TENANT. [CHAP. XI. tenant.i It need not be directed to the tenant by name, provided it be personally served upon him ;^ and, when personally served, a mistake in the Christian name will be of no importance.^ Where the premises are in possession of two or more, as joint tenants or tenants in common, a written notice addressed to all, and served upon one only, will be good notice ; at least it raises a presump- tion that the notice reached the other tenant in common, although he may live at a distance.* And when the original tenant has quit the premises, and another taken possession, it will be presumed, in the absence of proof to the contrary, that the latter came in as assignee of the former, though he has never paid rent ; and it will, in that case, be sufficient to serve notice upon the assignee.^ When a corporation is tenant, the notice must be given to the corporate- name, and served upon its officers ; if addressed to the officers, it will be insufficient.^ If the notice be given by the tenant, it must be given to his immediate landlord, that is, to the person to whom he is bound to pay rent, or his agent, and not to the superior or head landlord. If he makes a mistake as to the period of the ten- ancy, it will not have the effect of determining the lease, and the tenant himself may take advantage of the defect. Such notice is not good as a notice to quit, nor does it operate as a surrender, inasmuch as it is to take effect in futuroJ § 482. At common law, the notice might be verbal, unless a written one was made necessary by agreement of the parties. But the statutes referred to require the landlord's notice to be in writ- ing ; and, therefore, a mere verbal request from the landlord to the tenant to quit, before the end of the term, will not put an end to a tenancy, at Avill or by sufferance.^ And as a tenancy from year to year cannot be determined, unless by a legal notice, or a surrender in due form of law, a mere parol license to quit, and the tenant's leaving the premises accordingly, will not determine the tenancy ; 1 Roe V. Wiggs, 2 N. R. 330 ; 2 Bos. & " Doe v. SpiUer, 6 Esp. E. 70. Pul. 230 ; 3 Taunt. 95 ; Jackson v. Baker, * Doe dem. Bradford v. Watkins, 7 10 Johns. R. 270. And where the origi- East, 561 ; 3 Smith, 517 ; 5 Esp. R. 196. nal tenant has quit, and another has taken ^ Doe dem. Morris v. Williams, 6 B. & possession, it will be presumed in the ah- C. 41; 6 M. & S. 110. sence of any evidence to the contrary, ^ Doe dem. Earl of Carlisle u. Wood- that the latter has come in as assignee of man, 8 East, 228. the former, though he has never paid rent; ' Doe dem. Milward, 3 Mees. & Wels. and notice served on such assignee will be 328. good. Doe dem. Morris v. WiUiaras, 6 B. ^ Timmins v. Eowlinson, Burr. 1603 ; & C. 41 ; Doe v. Murless, 6 M. & S. 110. Black. R. 533; Doe v. Crisp, 5 Esp. 196- 2 Doe dem. Matthewson v. Wrightman, 2 Campb. 96. ' 4 Esp. R. 5. SEC. II.J NOTICE TO QUIT. 349 for this would amount to a surrender, which, under the statute, must be in writing.^ § 483. The notice must be explicit and positive ; in the words of the statute, it must require the tenant to remove from the premises. It should not, therefore, in any case, give the tenant the option of leaving the premises or not, by entering into a new contract on cer- tain conditions. But a notice, if intelligible, although not accurately worded, is sufficient ; thus a notice " to remove, or I shall insist on double rent," has been held good ; because the latter evidently re- fers only to the penalty inflicted by the statute, in case the tenant should continue to hold over. In this case, however, it was said, by Lord Mansfield, that if the notice had contained the option of a new agreement, as for instance, " remove, or else that you agree to pay me double rent," it would not have been sufficient.^ And in case there should be an obvious mistake in some part of the notice, biit yet, upon the whole, it is so certain and direct as to make it impos- sible that the person receiving the notice should have been misled by it, it will be good. As, for instance, where the landlord gave his tenant notice in the following form : " I hereby give you notice to remove from the premises which you hold of me, situated in the parish of St. Anne, called The WatermmiJ & Arms," when, in fact, the only premises which the tenant held of him were called the " Bricklayer's Arms ; " in this case, upon its being shown that there was no sign of the " Waterman's Arms " in the parish of St. Anne, that the tenant held no other premises of the plaintiff but " The BricMayer^s Arms" and that, therefore, the tenant could not pos- sibly have been misled by the mistake, the notice was held suffi- cient.2 The notice must include all the premises held under the same demise ; for a landord cannot determine the tenancy as to part of the thing demised, and continue it as to the residue.* But where they were described as of a wrong parish, the court, after verdict, held it to be immaterial ; as the defendant did not show that he held any other premises of the plaintiff, or that he was mis- led by the notice.^ And if the tenant misleads the landlord, by giving him wrong information, he will be bound by it ; and Lord 1 MoUett V. Brayne, 2 Camb. 103 ; 2 -' Doe dem. Cox v. , 4 Esp. E. Stark. 378 ; 2 Man. & Ry. 439. 185 ; 7 Term R. 63 ; 4 D. & R. 248. ^ Doe dem. Matthews v. Jackson, * Doe dem. Rodd v. Archer, 14 East, Doug. 175; Williams v. Smith, 5 A. & E. R. 245; 4 B. & A. 588; 8 Bing. 238. 350 ; Elliott v. Stone, 12 Cush. R. 174 ; ^ Doe v. Wilkinson, 12 Ad. & El. Granger v. Brown, 11 Cush. R. 191 ; Cur- 743. rier v. Barker, 2 Gray, R. 224. 30 350 LAW OF LANDLOED AND TENANT. [CHAP. XI. Kenyon held, in the case referred to, that it made no difference whetlier the information so given proceeded from mistalte or design, as it had equally the effect of leading the landlord into error .^ § 484. According to the English cases, when personal service ' cannot he effected, it will be sufficient if notice is left with the wife, or a servant of the tenant, at his usual place' of residence, whether upon the demised premises or elsewhere, and its natiire and con- tents explained at the time.^ The Revised Statutes of New York direct, that it " shall be served by delivering the same to the tenant, or to some person of proper age residing on the premises ; or, if the tenant cannot be found, and there be no such person residing on the premises, such notice may be served by affixing the same on a conspicuous part of the premises, where it may be conveniently read." " And, at the expiration of one month from the service of such notice, in the manner above specified, the landlord may re- enter, or maintain his remedy of ejectment, or proceed, in any other manner prescribed by law, to remove the tenant, without any fur- ther or other notice to quit.^ § 485. But the notice may he waived ; for after the landlord has given notice, and the time has expired, he may do some act which amounts to a waiver of it, and recognizes a new or subsisting ten- ancy. As if he receives rent as such,* or distrains for rent which has accrued after the expiration of the notice, his notice will be considered as waived, and the tenancy re-established.^ But it seems that a pending action, for use and occupation, will not in- validate the notice ; for the landlord may only recover in his action rent due at the time of the expiration of the notice, although he may claim rent to a later period.'' So where rent is usually paid at a banker's, if the banker, without any special authority, receives rent accruing after the expiration of the notice to quit, it will not so operate.^ Nor is a promise not to turn the tenant out of the 1 Doe dem. Eyre v. Lambly, 2 Esp. traiy, for the reason that in the case of a 635. notice to quit, the tenancy is put an end 2 Jones dem. Griffiths o. Marsh, 4 to, by the agreement of the parties, and, Term R. 464; Doe dem. Bradford v. therefore, the determination cannot be Watkins, supra; Doe dem. Neville v. waived without the assent of both ; draw- Dunbar, 1 M. & M. 10; 4 N. & M. 42. ing a distinction between this case, and 3 1 R. S. 745, § 8, 9. that of a forfeiture, where the lease is * Goodrightdem. Charter i;. Cordwent, voidable only at' the election of the lessor. 6 TermR. 219; Collins w. Canty, 6 Cush. « Per Buller, J., Birch v. Wright, 1 R- 415. Term R. 378 ; Sel. N. P. 650 ; Jackson v. 5 Prindle v. Anderson, 19 Wend. R. Stafford, 2 Cow. R. 547; Boggs v. Black, 391 ; Zouch dem. Ward v. Willingdale, 1 1 Binn. 333. H. Black. 311. The case of BIythe v. ' Doe v. Calvert, 2 Campb. N. P. C. Dennett, 13 C. B. 178, holds to the con- 387. SEC. II.] NOTICE TO QUIT. 351 farm, unless it should be sold, given after notice to quit, a waiver.^ The mere acceptance of money by a landlord, for occupation subse- quent to the time when the tenant ought to have quitted, according to the notice given him for that purpose, or a demand of rent accru- ing, due subsequent to that time, are neither of them a waiver of such notice on the landlord's part, but matter of evidence only, whence a waiver may or may not, according to circumstances, be inferred. For, in all cases, it is -for the jury to determine whether the money paid was received as rent ; and whether it amounts to a waiver of notice or not, depends upon the intention of the parties, wliich^ is a matter of fact to be left to a jury.^ § 486. The notice, also, may be waived, hy giving a subsequent notice to the same effect ; because the latter notice is an acknowl- edgment that the tenancy still subsists, after the expiration of the notice first served.^ But if it is manifest that the second notice to quit is not intended as a waiver of the first, it will not so operate. As, where a second notice was given after the expiration of the first notice, and after the commencement of an ejectment suit, in which the landlord continued to proceed, notwithstanding his second notice, it was held to be no waiver of the original notice ; because it was impossible for the tenant to suppose that the landlord meant to waive a notice, upon the foundation of which he was proceeding to turn him out of the farm. The party giving a subsequent notice may also express his intention that it shall not operate as a waiver of his first notice, and then the first notice will stand good.^ So where, after the expiration of a notice to quit, the landlord gave the defendant a fresh notice, that unless he quit in fourteen days, he would be required to pay double rent, Lord Ellenborough held there was no waiver of the first notice.^ A tenant who held under 1 Whiteacre v. Symonds, 10 East, E. on 3d June, 1784, the plaintiff gave him 13 ; Doe dem. "Williams v. Humphreys, 2 another notice to quit at Martinmas fol- East, 236. lowing, or pay double rent. It was held, 2 Doe dem.. Cheney v. Batten, Cowp. by Lord Mansfield, that the first notice R. 243 ; Doe dem. Heapy v. Howard, 11 was not waived by the second, for that. East, 498; 3 Campb. 115; 3 Taunt. 54; when a term is to end on a precise day, Blythe v. Dennett, supra. there is no occasion for a notice to quit; ' Doe dem. Brierly v. Palmer, 16 East, that here it ended at Whitsuntide ; that E. 53. the meaning of the first notice was, that if * Doe dem. Williams v. Humphreys, 2 the tenant did not quit, the landlord would East, E. 237. In an action, however, for insist on double rent, and the second no- double rent, the defendant was tenant to tice only expressed what was meant by the plaintiff under a demise for three the first. Messenger v. Armstrong, 1 years, from Whitsuntide, 1781. Two Term R. 53. months previously to Whitsuntide, 1784, ^ Doe dem. Digby v. Steel, 3 Campb. plaintiff gave him notice to quit at that 117 ; Doe v. Inglis, 3 Taunt. 54. time. After the expiration of the notice, 352 LAW OP LANDLOED AND TENANT. [CHAP. SI. a demise from the 26th day of March, for one year thence next ensu- ing, and so from year to year, for so long as the landlord and tenant shoiild respectively jjlease, after having held more than a year, gave notice, which was less than six months before the 26th day of March, that he would quit on that day, and the landlord assented to the notice ; it was held that the tenancy was not thereby deter- mined, there not having been either a sufficient notice to quit, or a surrender in writing, or by operation of law.^ § 487. At the expiration of the time specified in the notice, the landlord is in precisely the same situation as he would have been at the end of the year, if the tenancy had been for a year, and he may at once proceed to take possession, or if necessary to commence an action for the recovery of the premises.^ If, however, he omits to commence proceedings to eject the tenant for any considerable space of time, or if he again collects rent, he must give fresh notice before he can take proceedings ; for the expiration of the notice is equivalent to the expiration of a lease, and, after this time, a new tenancy will be considered as having commenced.^ SECTION III. BY POEPEITUEE. § 488. The relation of landlord and tenant will also be dissolved, when the tenant incirrs a forfeiture of his lease, in consequence of the breach of some condition therein contained, and the landlord re-enters upon the premises. At common law if a tenant does any act inconsistent with his character as a tenant, — as if he im- pugns the title of his lessor, affirming by matter of record or other- -wise, the fee to be in a stranger, claims a greater estate than he is 1 Johnstone v. Huddlestone, 4 B. & C. otiierwise than subject to the landlord's 922. Where a landlord, about to sell his riglit of acting on such notice, if neces- premises, gave notice to the tenant to quit sary ; and therefore that the tenant, not on the 11th October, 1806, but promised having delivered up possession on de- him not to turn him off unless they were mand, after the sale, was a trespasser sold, and, not being sold until February, from the expiration of the notice to quit. 1807, the tenant refused, on demand, to Whiteacre dem. Boult. v. Symonds, 10 deliver possession; on ejectment, the court East, 13; Doe v. Sayer, 3 Campb. N. P. held that the promise, which was per- C. 8 ; 2 Car. & P. 348. formed, was no waiver of the notice, nor ^ Scott v. Miller, 2 C. & P. 348. operated as a license to be on the premises, " Rowan u. Lytle, 11 Wend. R. 616. SEC. in.] FORFEITURE. 353 entitled to, or aliens the estate in fee, by any mode of conveyance which has the effect of devesting the estate of the reversioner, as by a feoffment, or other common-law conveyance, — a forfeiture will be incurred, and the landlord may re-enter and resume the posses- sion. ^ The Revised Statutes of New York have taken away some of these grounds of forfeiture, by providing that no conveyance, by a tenant for life or years, of a greater estate than he possessed or could lawfully convey, shall work a forfeiture, or be construed to pass any greater interest than the grantor possessed ; but such con- veyance will pass to the grantee all the title, estate, or interest, which such tenant could lawfully convey.^ And this provision is said, by Mr. Oliaucellor Kent, to have been introduced, generally, into the statutes of the several States.^ Biit a tenant was not, at common law, necessarily incapacitated from continuing to hold possession under a written lease, merely because he had, by parol, asserted an adverse claim to the premises, to be vested in himself, witliout actually renouncing the relation of tenant.* Even before the Revised Statutes, it was held in New York that a tenant for life did not forfeit his estate by granting in fee ; ^ for, under the statute of uses, any conveyance in the nature of a grant could pass nothing but what a grantor might lawfully convey ; but, since then, it has been decided that no form of conveyance can work a for- feiture.^ And it is now held, that no assertion of the tenant, that he owns the lands in fee, and owes no rent for them, will produce a forfeiture of an estate for life or years.^ § 489. The forfeiture of a term generally occurs, in consequence of a breach of some stipulation contained in the contract, under 1 Co. Lit. 251, b ; Read dem. Brrington, sire than this ; and such interests in real Cro. Eliz. 321 ; Fern dem. Matthews v. estate, which are often of great value, will Smart, 12 East, E. 444; Goodright dem. come to depend upon the uncertain mem- Waters V. Davids, Cowp. R. 808 ; Com- ory of witnesses, and the title to valuable monwealth v. Welcome, 5 Dane, Abr. 13. landed estates will be gained or lost, ac- 2 1 R. S. 739, § 143. cording to the preponderance of oral tes- 3 4 Kent, Com. 104 ; Gen. St. of Mass. timony, or the result of a nicely balanced c. 89, § 9. case. But the poMcy of the law in regard * Rees V. King, Forrest, Exch. R. 22 ; to interests in land, has been to leave as Coop. 92. little as possible to depend upon verbal ^ Jackson v. Mancius, 2 Wend. R. 357. testimony ; and hence no conveyance, as- ^ Grout V. Townsend, 2 Hill, R. 554 ; signment, or surrender of an estate or in- B. o. 2 Denio, E. 33B. terest in land is allowed except by deed in ' DeLancy w. Ganong, 5 Seld. R. 9. It writing. And his learned associate. Jus- must be remembered, says the learned Jus- tice Mason, in the same case observes, tiee Denio, that should the doctrine be es- mere words of denial or disclaimer, never tabhshed that such an estate can be forfeit- worked a forfeiture, either under tlie feu- ed by mere words, parties will be at liberty dal law, or the more enlightened common to submit to a jury, evidence far less conclu- law of England. 30* 354 LAW OP LANDLORD AND TENANT. [CHAP. XI. which the tenant occupies the demised premises. But the com- mon-law doctrine of forfeiture was founded on strict feudal prin- ciples, and is now believed to be, not only inapplicable to the present state of society, but unjust in many respects, for which reasons courts of law are found to be averse to enforcing it. Hence a de- fault in the payment of rent, where there is a covenant for its pay- ment, but no condition in the lease providing for a re-entry in case of such default, does not work a forfeiture of the term. For the same reason, also, a stipulation, giving a power of re-entry to the landlord, is strictly construed ; and, in order to enforce it, there must be such a breach shown, as it was the clear and manifest in- tention of the parties to provide for.i Where a lease, therefore, contained a proviso for re-entry, if the tenant should make default in the performance of any of the covenants therein ; it was held to extend only to affirmative covenants, and not to those of a negative character, for they were not to be performed.^ So where a lessee covenanted to pay the rent, and not to assign without leave of the lessor, and there was a proviso for re-entry if the rent should be in arrear, or if all or any of the covenants tht'reinafter contained, on. the part of the lessee, should be broken, but there was, in fact, no covenant on the part of the lessee contained in the lease, subse- quent to the proviso, and merely one by the lessor that, upon the lessee paying the rent, and performing all the covenants hereinbe- fore contained on his part to be performed, he should quietly enjoy, &c. ; the court held, that the lessor could not re-enter upon a breach of the covenant not to assign, for the proviso was restrained, by tlie word hereinafter, to subsequent covenants ; and, although there were none, the court would not reject the word.^ And a pro- viso, that the lessee shall not " do, or cause to be done, any act, 1 Baxter v. Lansing, 7 Paige, R. 850 ; the owner of tlie property is from that Brown's Adm'ru. Bragg, 22 Ind. R. 122; time wholly devested. 5 T. R. 112; 3 Doe dem. Earl of Darlington v. Bond, 5 Cranch, 837; 11 J. R. 293; 14 ib. 128; 8 B. & Cress. 855 ; Clark v. Jones, 1 Denio, Cranch, 398 ; 5 Sandf. R. 614. 516. An interpretation which creates a ^ Doe u. Marchetti, 1 B. &. Ad. 715. forfeiture is not to be favored. Jackson But a covenant not to underlet, on penalty y. Topping, 1 Wend. R. 388; and statutes of forfeiture and damages, was held to in- creating penalties and forfeitures are to re- tend a forfeiture of the term and estate, ceive a strict construction. Hasbrook v. Lynde v. Hough, 27 Barb. R. 415 ; Co. Paddock, 1 Barb. R. 685. Equity does Lit. 204, a. not assist the recovery of a penalty or for- ^ Doe v. Godwin, 4 M. & S. 265. Where feiture, or any thing in the nature of a for- a lease provides that if the rent be not paid feiture. Livingstone. Tompkins, 4 Johns, at the day appointed, it may he recovered Ch. K. 415 ; Linden v. Hepburn, 3 Sandf. in an action of debt, the language used R. 688. But where by the terms of a precludes the idea of a forfeitm-e. De statute, a tbrfeiture is to attach, upon the Lancy v. Ganong, supra. commission of some illegal act, the title of SEC. III.] FOEPEITURE. 355 matter, or thing, contrary to and in breach of any of the cove- nants," has been held not to apply to a breach of a covenant to repair ; the omission to repair not being an act done within the meaning of the proviso.^ So, also, a deposit of a lease with another, as security for money advanced, is not a forfeiture under a condition not to assign.^ But insolvency is a voluntary act, and creates a for- feiture imder such a condition, although bankruptcy does not.^ § 490. Where a right of re-entry is reserved, in case the lessee commits waste, it is generally construed to mean such waste as will be injurious to the reversion, and not merely such as might be given in evidence under the old writ of waste, unless there be some stipu- lation in the lease to the contrary. And where a lease contained a proviso for re-entry, if the lessee should commit waste to the value of ten shillings, and the lessee, having pulled down some old build- ings of more than that value, and substituted others of a different description, the lessor brought his action of ejectment for a forfeit- ure ; it was held, that the waste contemplated by the proviso was waste producing an injtiry to the reversion, and that it was a ques- tion for a jury, under all the circumstances, whether such an injury, to the value of ten shillings, had been committed.* It has been held, also, in New York, that the whole of the demised property is not forfeited under such circumstances, but only so much thereof as waste may have been committed upon.^ § 491. A condition being indivisible, the conditions of a lease do not become severed by a severance in the occupation of the demised premises, and by a payment of rent to the lessor by the respective occupants, for the portion occupied by each. Hence, if either a lessee, or an assignee of a portion of the premises, commits any act which, by the terms of the lease, creates a forfeitare of the estate, the forfeiture attaches to the whole of the premises embraced in the lease. As where a lease contained a covenant, on the part of the lessee, that he would not cut or destroy any part of the timber and wood growing on the demised premises, except for making or 1 Doe V. Stevens, 3 B. & Ad. 299. A a dwelling-house on a portion of the prem- Ncw York statute provides that a diver- ises would not cause a forfeiture. Has- sion of the salt-works, which are farmed brook v. Paddock, supra, out by the State, to other purposes than ^ Doe v. Hogg, 4 D. & E. 225; 1 Car. the manufacture of salt, shall work a for- & P. 160. feiture of the leasehold estate ; and upon " Shee v. Hall, 13 Tes. 404. this statute it has been decided that the * Doe v. Bond, 5 B. & C. 855. diversion to cause a forfeiture must be a * Jackson v. Tibbetts, 3 Wend. R. 341. diversion of the whole, and that building 356 LAW OF LANDLORD AND TENANT. [CHAP. XI. repairing buildings to be erected on the land, and for necessary fencing, and fuel for one dwelling-house, with a clause of re-entry by the lessor, for a breach of any of the covenants by the lessee ; and it was proved, in an action of ejectment brought by the lessor against the lessee, that the latter had cut trees and timbers for pur- poses not authorized by the lease ; it was held that the lessee could not escape the consequences of the forfeiture incurred by such act, on the ground that he had procured his firewood and fencing-timber from other land, and that he had not witlidrawn from the demised premises more wood than the lease authorized him to take, although he had used it for other purposes.^ § 492. Not only may the lessor re-enter for a forfeiture, but his heir or executor may also re-enter, when entitled to the reversion ; and we have seen when an assignee of the reversion may enter for a condition broken. But it is entirely optional with the lessor whe- ther he will avail himself of 'this right of re-entry or not, although, by the terms of the proviso, the term is to cease, or become void, for the non-jDerformance of the covenants ; and if the lessor does not avail himself of it, the term will continue, for the lessee cannot elect that it shall cease or be void.^ There was, however, a distinc- tion formerly drawn between leases that were void upon a breach of condition and such as were voidable only. In the case of a lease for lives, if the lessee was guilty of any breach of the condition of re-entry, the lease was only voidable, although, by its express terms, it was to become thereby absolutely void ; and the landlord might waive his right to re-enter, by the acceptance of rent, or of some other act, which amounted to a dispensation of the forfeiture. But, upon the breach of such a condition in a lease for years, the lease became ipso facto void, and no subsequent recognition could set it up again. Yet if the condition, in such case, was merely that the lessor might re-enter, the lease was voidable only, and might be affirmed by an acceptance of rent, if the lessor had notice of the breach at the time.^ But the force of this distinction has been almost, if not quite, abated by the modern decisions, which establish that the effect of a condition, making a lease void upon a certain 1 Clarke v. Cummings, 5 Barb. E. 339 ; 2 Arnsby v. Woodward, 6 Bar. & Cress. 7 Johns. li. 221. 'An estate is forfeited 519; Eede y. Farr, 6 M. & S. 121. for the non-performance of a condition, by » Jackson v. Andrews, 18 Jolrns. R. a grantee, though the grantee was under 431; Co. Lit. 215, a; Pennant's Case, 3 disability, as, for example, a married wo- Co. 64, a ; 1 Saund. R. 287, b ; Chalker man. Garrett jj. Sconten, 3 Den. R. 334 ; u. Chalker, 1 Conn. R. 79. 4 Kent, Com. 125 ; Co. Lit. 246, b. SEC. m.J FOBFEITUEB. 357 event, is to make it void at the option of the lessor only, in cases where the condition is intended for his benefit, and he actually avails himself of his privilege.^ In conformity with the English cases, Mr. Chancellor Walworth held, that although, by the condi- tion of a lease, it is provided that if any of the covenants, on the part of the tenant, are broken, the unexpired term shall cease and determine, if the lease also contains the clause, that, in case of the non-performance of such covenants, the landlord may re-enter, the lease is voidable only at the election of the landlord, bu.t not at the option of the tenant.^ The Supreme Court of New York also expressly declared that the old doctrine no longer prevails ; and that, in relation to leases for years as well as for life, the happening of a cause of forfeiture only renders a lease void as to the lessee ; that the lessor may affirm it, and then the rights and obligations of both parties will continue, without regard to the' forfeiture.^ § 493. At common law, when a forfeiture was sought to be en- forced for the Thon-payment of rent, there was no distinction made between cases where there was a sufficient distress upon the prem- ises, and where there was not. In every case, before a landlord could enter for the non-payment of rent, he must have made a for- mal demand of the precise sum due for the last current quarter, and if the demand included any portion of the rent of a previous quar- ter, it would have been bad.* It must also have been made on the day it became due or legally demandable ; ^ at a convenient time before sunset ; ^ at the place where, by the terms of the lease, it was made payable ; or, if there be no place mentioned in the lease, at the most notorious place upon the demised premises, which, if there be a dwelling-house, is the front door.'^ But the lessee might seek 1 Doe V. Baucks, 4 B. & Aid. 401 ; Da- quarter-day ; for the proviso for recovery ken 0. Cole, 2 Russ. 170; 1 Nev. & M. by prosecution, distress, or re-entry for 443 ; 1 M. & W, 402. And see Bowman v. want of distress, does not extend the time Poot, 29 Day, R. 331. of payment. Van Rensselaer v. Jewett, 2 Stuyvesant v. Davis, 9 Paige, E. 427. supra. ^ Clark V. Jones, 1 Denio, 516 ; Lud- " Jackson v. Harrison, 17 Johns. R. 66 ; low V. N. y. & H. R. E. Co. 12 Barb. R. Duppa v. Mayo, 1 Saund. R. 287. For 440 ; Phelps v. Chesson, 12 Ired. 194 ; the very primitive reason that the tenant Reed v. Parsons, 2 Chit. R. 247 ; Roberts may have light to count the money. V. Davey, 1 Nev. & Man. 443. In Penn- ' Connor v. Bradley, 1 Howard, R. 211 sylvania, the old doctrine has been assert- Van Rensselaer c. Snyder, 9 Barb. 802 ed, in Kendrick v. Smith, 7 W. & S. 41. s. c. 13 N. Y. R. 299. Co. Lit. 202, a * Doe dem. Wheeldon v. Paul, 3 C. & Clun's Case, 10 Rep. 129, a ; 1 Leon. 141 P. 613 ; Van Rensselaer v. Jewett, 2 Cro. Eliz. 209 ; 1 Saund. 287. And there Comst. R. 147. must be such a demand on the premises, 5 Although the lease contains a proviso even where the rent is payable at another tliat the lessor may re-enter, if the rent place than the premises. Van Rensselaer remains unpaid for twenty-eight days after «. Jewett, sujora ; 4 Co. R. 73, a. lure- 358 LAW OF LANDLOKD AND TENANT. [CHAP. XI. the lessor at any time during the natural day, that is, before twelve at night on which the rent becomes due, and make a personal ten- der of the rent, in order to save the forfeiture.^ If the rent was payable at any specified place, the tender must be made at that place ; ^ but if no place was mentioned, it was enough that the les- see be upon the land with the money, or the specific articles (if the rent be payable in kind), ready to pay if demanded.^ § 494. The same strict proof of demand is still required of a landlord who re-enters for a forfeiture, where there are sufficient goods upon the demised premises, from which he might have real- ized his rent by a distress, if he had thought proper ; or where the relation of landlord and tenant subsists by mere operation of law, and the statute authorizing summary proceedings to take posses- sion after the non-payment of rent cannot be resorted to.* But the statutes of some of the States have substituted the service of a dec- laration in ejectment for a formal demand of rent, in cases where a half-year's rent is due, and no sufficient distress can be found upon the premises to satisfy the rent.^ And a recent statute of New York, abolishing distress for rent, not only dispenses with the for- mality of a demand, but gives ^ right of re-entry, in cases of forfeits ure for the non-payment of rent, after the service of fifteen days' notice to quit, in writing upon the tenant, whether there be suffi- spect to service reserved, if the lease does that no sufficient distress be found on the not fix any place of performance, it is not premises. Doe dem. Smelt v. Fuchan, 15 necessarily upon the demised premises, East, E. 286. Every part of the premises but the landlord may designate any rea- should be searched. Powell v. King, in sonahle place. Van Rensselaer v. Jones, Smith v. Jersey, 2 Br. & Bing. 514. The 6 Denio, E. 449. Connecticut does not goods, however, must be so visibly on the dispense with the requireriients of the premises, that a broker going to distrain, common-law demand. Bowman!). Foot, and using reasonable diligence, would find supra. Nor Ohio. Smith v. Wliitbeck, 13 them. Coe dem. Haverson v. Franks, 2 Ohio, R. 471. Nor Kentucky. Proctor a. Car. & liir. 678. The statutes speak of no Keith, 12 Ken. R. 252. Nor Califoi'nia. sufficient distress being found on the prem- Gaskill V. Turner, 3 Cal. R. 334. Louis- ises ; if, therefore, the tenant locks up his iana does. Hyde v. Palmer, 6 La. E. 699. doors, so that the landlord cannot enter 1 Burroughs v. Taylor, Cro. Eliz. 263. upon the premises to distrain, proof of this 2 Lush V. Druse, 4 Wend. R. 313 ; fact is enough, without showing that no E.emsen v. Conklin, 18 Johns. R. 450. A sufficient distress was on the premises, waiver of a demand will never be implied Doe dem. Chippendale v. Dyson, 1 Moo. & to aid a forfeiture. Gaskill u. Turner, M. 77. And it was at one time thought supra. that where more than half a year's rent 8 16 Jolms. R. 222 ; 3 Kent, Com. 468. was due, it was not enough to show that In order to obviate some of these difficul- there was no distress sufficient to satisfy ties, the parties sometimes inserted in the the whole arrears due. Doe dem. Powell v. condition of the lease, terms expressly Roe, 9 Dowl. 548. But this has since dispensing with a formal demand of the been held not to be the true construction rent, and such dispensation was held op- of the statute. Cress v. Jordan, 8 Exch. erative. Doe dem. Harris v. Masters, 2B. R. 149. & C. 490. 5 2 R. S. 505, § 30 ; 4 Geo. II. c. 28. * It is essential to these proceedings SEC. III.J FORFEITURE. 359 cient goods upon the premises or not.i It is to be observed, how- ever, that this right of re-entry, constituting a forfeiture for the non-payment of rent, cannot exist except where it is expressly so stipulated in the lease.^ § 495. When a tenant has forfeited his lease, by a breach of the covenant for the payment of rent, courts, both of law and eqiiity, consider the clause of re-entry to be mainly inserted for the land- lord's security, and will interfere in the tenant's behalf, although all the formalities of a common-law demand may have been com- plied with, upon his satisfying the rent due, and any damages which the landlord may have sustained in consequence of this omission.^ And, in general, a court of equity will relieve the ten- ant from a forfeiture, where the breach has been accidental, or where it has been incurred by neglecting to pay a sum of money, the interest upon which can be calculated with certainty, and the landlord thereby compensated for the inconvenience he may have sustained by the tenant's withholding the payment.* The Revised Statutes of New York also seciire a remedy to the tenant, in cases of forfeiture for the non-payment of rent, by permitting him, at any time within six months after a landlord obtains possession of the premises, in an action of ejectment, to tender to the lessor, or his attorney, the rent due, with costs, and all further proceedings are then to cease ; the premises are to be forthwith redelivered to the lessee, who will hold the same without any new lease, and accord- ing to the terms of the original demise. But if no such tender is made within the six months, the lessee, and all persons deriving title under him, will be barred from all relief in law or equity, and the prepaises will be thenceforth discharged from the lease.^ It would seem, however, that the actual tender or payment of money may, in some cases, be dispensed with ; for, in a case where there had been various dealings between a landlord and his tenant, so as to produce an account too complicated to be taken at law, and the landlord brought an ejectment for the non-payment of rent, and 1 Laws of 1846, oh. 274, p. 369. ^ 2 R. S. 505, § 33. By the New York 2 Van Rensselaer v. Jewett, supra. Code of Procedure, § 452, judgment of 8 Phillips V. Doelittle, 8 Mod. R. 345 ; forfeiture and eviction shall only be given 1 Wils. R. 75 ; Black. R. 746 ; Baxter v. in favor of a j(erson entitled to the rever- Lansing, supra ; Story's Eq. § 1314 ; 10 sion against the tenant in possession when Ves. 6, 7 ; 12 ib. 282, 475 ; 16 ib. 405 ; the injury to the estate in reversion shall Lovat V. Lord Ranelagh, 3 Ves. & B. 24. be adjudged in the action to be equal to * Jacksonw. Brownson, 7 Johns.R. 235; the value of the tenant's estate, or unex- Nelson v. Carrington, 4 Munf R. 332 ; pired term, or to have been done in mal- Bracebridge v. Buckley, 2 Price, R. 200. ice. 360 LAW OP LANDLORD AND TENANT. [CHAP. XI. the tenant filed a bill for an account upon those dealings, and to have the balance applied to the liquidation of the rent due, Lord Redesdale held that, upon such a bill, there was no necessity for the tenant to bring the rent into court.^ But if the question, whether rent be due or not, is not too complex to be tried at law, and there is no occasion for a bill of account, the tenant will not be restored to possession without paying the money into court.^ § 496. The doctrine of compensation will not apply in any case where the landlord's damages are not a mere matter of computa- tion ; and, therefore, if it is stipulated in a lease that the lessor shall re-enter, in case the lessee makes an assignment without permission of the landlord, the breach of such an agreement is a cause of forfeit- ure, against which the court will not grant relief.^ Or if a tenant, being imder a covenant to keep the premises insured, neglects to do so, and, by the terms of the lease, such neglect or refusal is to operate as a forfeiture, a court of eqtiity will not interfere ; for, as it is impossible to estimate in damages the amount of risk run, by not insuring, the effect of giving relief in such a case would be, that a tenant might break this covenant with impunity, and every landlord must take his tenant for insurer, for wailt of power to en- force his* covenant.* The same principles apply to cases where the tenant neglects to repair ; ^ or has made a way through the prem- ises, contrary to his express covenant ; ^ exercises a forbidden trade ; "^ or cultivates the land in a manner prohibited by the lease.* But courts of equity are only closed against the tenant, where the forfeiture is incurred by his wilful and culpable neglect to fulfil the terms of his covenant ; and not in cases where the omission has been occasioned by inevitable accident. And the general rule to be applied to all such cases seems to be, that courts of equity will relieve where the omission, and consequent forfeiture, are the result of mistake or accident, and the injury and inconvenience aris- 1 O'Connor v. Spaight, 1 Sell. & Lef. own conduct he had induced the lessee to 305 ; 2 ib. 403. believe tlie premises had been insured by 2 O'Mahoney v. Dickson, 2 Sch. & Lef. himself. Pittman v. Sutton, 9 C. & P. 400. 706. The strictness of this doctrine is 8 Lovat V. Lord iKanelagh, 3 Ves. & also relaxed in cases where a, delay to B. 29-31 ; Sanders v. Pope, 12 Ves. 291 ; insure is properly explained, or shown to 2 Ch. Cas. 127. be reasonable. Darlington v. Ulph, 13 * Rolfe V. Harris, 2 Price, R, 206, n. ; Q. B. 204. Reynolds v. Pitt, *. 212, n. ; White v. ^ Hill v. Barclay, 16 Ves. R. 402 ■ 18 Warner, 2 Meriv. 459 ; 19 Ves. R. 134; *. 56 ; 1 Dal. R. 210. 4 Sim. 96 ; 5 ib. 66. But if the premises <^ Descarlett v. Dennett, 9 Mod. R. 22. are uninsured for a short time, the lessor ' Maeliar v. Hospital, 1 Ves. & B. 188 • will not be allowed to enforce a forfeiture, Walter v. Mocatto, 9 Mod. 112. ' for a breach of this covenant, if by his » Lovat v. Lord Ranelagh, su;5ra. SEC. m.] FORFEITURE. 361 ing from it capable of compensation ; ^ but where the transgression is wilful, or the compensation impracticable, they invariably refuse to interfere.^ § 497. The ordinary waiver of a forfeiture occurs by an acceptance of, or distraining for rent, which became due after a breach commits ted by the tenant.^ And this result follows, without reference to the amount of rent received, or to the sufficiency of the distress.* But, to make it a waiver, it is necessary that the landlord, at the time of accepting the rent, have knowledge of the fact that the condition has been broken.^ If, with this knowledge, he receives rent from the tenant, which has accrued subsequent to a breach of the condi- tion, he again consents to and establishes the tenancy, which it was competent for him to have avoided ; and thereby precludes himself from taking advantage of the tenant's misconduct.^ Thus, if the condition be, that the tenant shall not assign without the written permission of his landlord, and, notwithstanding this, he makes an assignment, if the landlord subsequently accepts rent from the as- signee, it will be considered a waiver of the forfeiture, and makes the lease valid in the hands of the assignee.'' So, also, a forfeiture for not repairing may be waived by the receipt of rent becoming due after a right of re-entry accrued ; ^ but not by receiving rent which accrued before the expiration of a notice to repair ; nor is it waived, but merely suspended, by allowing a tenant further time to repair.^ Neither will the receipt of rent, after a landlord has ac- ' Baxter w. Lansing, SMpra. Hunter v. Osterhont, 11 Barb. R. 33. '• Davis V. Moreton, 2 Cli. Cas. 127 ; Bleecker v. Smitli, 13 Wend. R. 530. Rolfe V. Harris, supra ; 2 Ventr. 852. * "Wilder v. Ewbanlc, 21 Wend. R. 587. ^ Newman v. Rutter, 8 Watts, R. 55 ; In the case of Bownaan v. Foot, supra, it is Silver V. Kenrick, 2 N. Hamp. R. 160; doubted whether after an entry for the Jackson v. Sheldon, 5 Cow. R. 448; Doe non-payment of rent, the acceptance of V. Rees, 4 Bing. n. s. 384; 1 Stark. R. rent is a',waiver of the forfeiture. 411 ; Cowp. 247. Gomber v. Hackett, 6 ^ Jackson v. Schutz, 18 Johns. R. 174 Wis. R. 323. Price v. Worwood, 4 Hurl. Jackson v. Brownson, 7 ib. 227 ; Jones v. & Nor. 512. The acceptance of rent, of Roberts, 3 Hen. & Muuf. 436 ; Cowp. 803 course, only aflBrms the tenancy, during Keeler v. Davis, 6 Duer, R. 507. that period in respect to which the rent " Marsh v. Curteys, Cro. Eliz. 528, 553, was paid ; and therefore the landlord may 572 ; Walker v. Davids, Cowp. 804 ; Boggs receive any rent which became due before v. Black, 1 Binn. R. 333 ; Clarke v. Cum- the alleged forfeiture, or Indeed up to the mings, 5 Barb. 340. day of such forfeiture, or may bring an ' Whitchcot o. Fox, Cro. Jao. 398 ; action to recover it, without waiving the Roe v. Harrison, 2 Term R. 425. forfeiture. It is only by receiving or * Fryett v. Jeffreys, 1 Esp. R. 393. claiming rent due since the forfeiture, that ^ Doe v. Brindley, 4 B. & A. 84 ; Doe it is waived. See Pennant's Case, 3 Rep. v. Birch, 1 Mees. & Wels. 408 ; 4 B. & C. 64, b ; Jackson v. AUen, 3 Cow. R. 220 ; 606. 31 362 LAW OF LANDLORD AND TENANT. [CHAP. XI. tually commenced his action of ejectment for the forfeiture, amount to a waiver.^ § 498. Other acts of the lessor, besides an acceptance of rent, have been held to waive a forfeiture, when they show an intention on his part that the lease should continue.^ Thus a notice to quit at the end of a half-year, given after the happening of a breach, has been held to produce such a result.^ And although a landlord will not lose his right to re-enter by merely lying by, however long the period, and witnessing the act of forfeiture, yet if, with a full knowl- edge thereof, he permits the tenant to expend money in improve- ments after a forfeiture has been incurred, it is a circumstance from which the jury may presume a waiver, as well as ground for an application to a court of equity for relief.* Whether a demand of rent, without its being paid by the tenant, is a waiver, may be questionable ; but, if such be the case, an agent making the de- mand must have a general authority to act as agent, or it must be proved that the landlord had notice of the forfeiture.^ The land- lord's knowledge of unauthorized acts, without interference, will not preclude him on the groimd of aciquiescence.® And where a lessee covenanted to erect certain houses within twelve months, and the steward of the lessor, after there was a clear ground of forfeit- ure, allowed the lessee to complete the buildings, the right of re- entry was held not to have been waived.^ § 499. But, to operate as a waiver, the landlord must accept rent which has accrued since the forfeiture happened ; ^ for if the condi- tion be, that the landlord may re-enter for non-payment of the rent, or in case the rent be in arrear for a certain space of time, he may, at any time after the day of payment, receive that rent, or bring a ■■ Doe V. Meux, 1 Car. & P. 346. In of the landlord for a forfeiture may be New York it was held that wliere a land- suspended without being waived. And lord elects to proceed at law against a ten- the doctrine that the acceptance of rent ant, to enforce a forfeiture of the lease for after a forfeiture is a waiver thereof, is a the non-performance of its conditions, he question of intent; it being only inferred cannot during the pendency of the suit at from the payment and acceptance of rent, law against the tenant, have relief in equity that both parties recognize the lease as against him as upon a subsisting tenancy, still subsisting, but the contrary may be Stuyvesant v. Davis, 9 Paige, R. 427 ; shown by express proof. Maurice v. Mil- Linden V. Hepburn, 3 Sandf 068. . ler, 26 Barb. R. 41. 2 Doe w. Meux, 4 B. &C. 606; Doe u. "Doe dem. Sheppard v. Allen 3 Birch, 1 Mees. & Wels. 408. Taunt. 78. 3 Doe dem. Scott v. Miller, 2 C. & P. ' Doe dem. Lord Kensington v Brind- 348. ley, 12 Moore, 37. * Doe dem. Sheppard v. Allen, 3 » Stuyvesant v. Davis, 9 Paige, R. 427 ; Taunt. 78. Jackson v. Allen, 3 Cow. R. 120; Bleeck- ^ Doe dem. Nash v. Birch, 1 Mees. & er v. Smith, 12 Wend. R. 533. "Wels. 402. A right of entry on the part SEC. III.] FORFEITURE. 363 suit at law for it, and yet insist upon the forfeiture.^ If, however, the landlord, after a forfeiture has been incurred, proceeds to make a distress for rent previously due, he thereby affirms the possession of the tenant, and waives his right of re-entering ; because he can- not distrain for rent unless the relation of landlord and tenant, and consequently the lease, exists.^ And if he brings an ejectment for the forfeiture, he can only recover rent due after the time of the demise laid in his declaration, in the action for mesne profits ; for, by bringing an ejectment for the forfeiture, he has chosen to treat the lessee and his sub-tenants as trespassers from that time, and the claim to accruing rents is wholly inconsistent with his proceeding at law to enforce a forfeiture.^ § 500. Where, however, there is a continxdng cause of forfeiture, the landlord will not be precluded from taking advantage of it, by receiving rent which accrued after the breach was originally com- mitted. Thus, where the forfeiture was incurred by using two rooms in a house, in a manner prohibited by the lease, such user was held to be a continuing breach, and that the landlord might recover after receiving rent, provided the user continued after such receipt.* Besides this, the act by which the forfeiture was waived must amount to an affirmance of the tenancy, or a recogni- tion of its continuance ; it is not enough that the landlord knows of the breach of the condition simply, without availing himself of the right to re-enter. And, therefore, in a case where the tenant had forfeited his lease, by carrying on a trade upon the premises, con- trary to the agreement, and the landlord had stood by for six years, and witnessed the act without moving in the matter ; the court held that ho had not waived the forfeiture by the long lapse of time that had occurred, because there was a continuing cause of forfeiture, and a fresh breach of the condition upon which the tenant held the 1 Hartshorne v. "Watson, 4 Bingh. N. C. v. Gladwin, 6 Q. B. 953. In Doe dem. 178 ; Arnsby v. Woodward, 6 B. & C. 519 ; Baker v. Jones, 5 Exch. R. 498, the lessee Co. Lit. 211, b ; Jackson v. Sheldon, iupra. was bound, under a penalty of forfeiture, 2 Zouch V. Willingdale, 1 H. Black, to repair the demised premises, and to 311 ; Jackson v. Allen, 3 Cow. R. 220. keep them repaired during the term ; he 2 Stuyvesant v. Davis, 9 Paige, 427. allowed the premises to be out of repair, * Doe dem. Ambler v. Woodbridge, 9 and afterwards the landlord received rent. B. & C. 376. Where a tenant, who is The tenant then proceeded to pull down a bound to keep the premises insured at all portion of the buildings and to make ex- times during the demise, leaves them un- cavations, with the intention of repairing, insured for a time, the receipt of rent is It was held that the lease was forfeited, only a waiver of that portion of the breach and that the reasonable time for repairing which has occurred at the time the rent is did not commence aii-esh after the receipt received. See Doe dera. Ambler v. Wood- of the rent, bridge, 9 B'. & C. 376 ; Doe dem. Mustou 364 LAW OF LANDLORD AND TENANT. [CHAP. XI. lease, every day during the term that the forbidden trade was car- ried on upon the premises, and tliere had been no subsequent rec- ognition of the tenancy .1 Upon the same principle, the Supreme Court of New York have held, where there was a covenant on the part of the lessee that he would plant a certain number of apple- trees upon the farm, and would replace those that should decay or get destroyed, so as always to keep np the given number diiring the term, that it was a continuing covenant ; and, if the landlord should collect rent after he knew there was a breach of such a cove- nant, it would not waive the forfeiture, or prevent the landlord from re-entering, if, subsequent to the payment of such rent, there should stni be a failure, on the part of the tenant, to perform his engagement.^ § 501. But the waiver of one cause of forfeiture will not prevent its being again incurred upon a second breach. Thus, on a breach of the covenant against underletting, where the lessor accepts rent subsequently accruing, so as to waive the forfeiture, yet if the les- see, after the expiration of that lease, makes another under-lease, the lessor may re-enter.^ It is otherwise, however, on a covenant not to assign ; for there, if the lessor, by accepting rent, shoxild waive the forfeiture incurred by the lessee's assignment, there would be an end of the condition altogether, and the effect would be the same as if the lessor had granted a license,* SECTION IV. BY MBBGER. § 502. Another means of dissolving the relation of landlord and tenant is, by an operation of law, denominated a merger ; which result follows whenever two or more distinct estates in the same lands are found to meet in the same person, without any interme- diate estate. As when a tenant for life, or for a term of years, pur- chases the fee, or the fee descends to him as heir at law ; in either 1 Doe dem. Henniker v. Watt, 1 Man. " Doe dem. Boscawen v. BUss 4 Taunt & E. 694 ; 3 Taunt. 78. 735. 2 Jackson v. Allen, mpra ; Bleecker v. * Lloyd v. Crisne, 6 Taunt 249 Smith, 13 Wend. E. 53. SEC. IV.] MERGER. 365 case, the lease is merged in the inheritance, since there would be a manifest inconsistency in allowing a person to have two distinct estates, immediately expectant on each other, while one of them in- cludes the time of both, thus uniting the two different characters of landlord and tenant in the same person.^ § 503. To merge the two estates, they must come to the same person in one and the same right ; and the particular estate, and that in reversion, must be of the same quality, that is, cither both legal, or both equitable. And no person can have a term of years in his own right, and a freehold in another right ; but his own term must merge in the freehold, although he may have a freehold in his own right, and a term of years in right of another. As if he who has the reversion in fee marries the tenant for years ; ^ or the tenant makes the landlord his executor ; ^ the term of years is in neither case merged, because, by either operation, he would have the inheritance in his own right, while he would take the term of years in right of his wife, or in his character of executor. But if the case is reversed, and the tenant marry the lessor, or purchase the inheritance when he holds the term as executor, in either event the term of years is swallowed up in the inheritance, or, in the language of the law, is merged.* § 504. The more remote estate must be the next vested estate in remainder or reversion, without any intervening estate eitiier vested or contingent. A mere right or title will not suffice ; and an inter- esse termini not being a vested interest, but resting merely in con- tract, is no such intervening interest as will prevent the application of the law of merger. Therefore where A. made a lease to B. for 1 Jackson v. Roberts, 1 Wend. R. 478 ; tanto, although no union takes place as to Jackson v. Hull, 10 Johns. R. 482; 2 the residue. 76. Casey u. Buttolph, 12 Black. Com. 177. Unless there he two Barb. R. 637. estates in the same person in the same ^ Bac. Abr. Leases, R. "Where the land, there is no estate in that person to greater and less estate meet and coincide occasion a merger. An estate signifies in the same person, it is admitted that at such interest as the tenant hath therein ; law, the lesser estate is annihilated. But and a tenant is one who holds or possesses this rule is not inflexible in equity, for lands or tenements by any kind of title, there it depends on the intention of the either in fee, for life, for years, or at will, parties, and a variety of other circum- See the learned opinion of Mr. Justice stances, whether a merger shall take place Marvin, in Clift v. White, 2 Kern. R. 526 ; or not. Per Willard, J., in Reed v. Latson, and the general doctrine of merger dis- 15 Barb. R. 7. cussed in James v. Johnson, 6 Johns. Ch. * Lee's Case, 3 Leon. 110 ; Co. Lit 417; Van Nest v. Latson, 19 Barb. R. 388, b. The writer acknowledges his ob- g04. ligation to Mr. Preston's practical treatise ■2 Co. Lit. 288, b; James v. Morey, 2 on Conveyancing, for a large portion of Cow. R. 246. A merger as to a portion this brief outline of some of the distinct- of the premises, the legal titles to wliich ive features of the law of merger, have become united, may take place pro 31* 366 LAW OF LANDLORD AND TENANT. [CHAP. XI. ten years, to begin presently, and afterwards granted a second lease to C. of the same land, to commence at a future day, and, in the mean time, B. purchased the fee, by which his tenancy was merged ; it was held that the second lessee might at once enter and enjoy his term. The first term here merged, notwithstanding the inter- esse termini; and this latter interest only conferred a right of pos- session iipon the second lessee, earlier than it could otherwise have done without the merger.^ It must be obserYcd, however, that the strict legal doctrines of merger, are not favored in equity ; where it is not allowed to take place but for good reasons. Nor will it be permitted, where the intention of the parties was manifestly otherwise.^ And if there be any beneficial interest to protect, such as those of creditors, legatees, husbands or wives, or any right or intention to the contrary, the union of the legal and equitable in- terests in one person will not effect a merger. The same rule applies where the party in whom the two estates unite, is under some personal disability to make an election, such as infancy or insanity ; or where the lease has been assigned to the lessor as se- curity for a debt.^ § 505. Mr. Preston, in his treatise on the law of merger, notes a distinction as to the rule, that there will be no merger if the two estates are held in different rights, or the freehold is held by the owner of the fee in his own right, and the term in aut7-e droit; which is, that the accession of one estate to another, merely by the act of Imv, as by marriage, descent, executorship, or intestacy, will not occasion a merger, when the two estates are held in different rights ; while a descent of the inheritance will merge a term which a person has in his own right, though he be trustee of that term.* And although there will be no merger where either of the two estates, which are held in different rights, is an accession to the other by act of law, yet the lesser estate will merge, as often as one of them is an accession to the other by the act of the party, as by purchase, or the like.° This exception is allowed, on the principle, 1 Dyer, 112; Symonds v. Cudmore, 4 2 E. D. Smith, R. 474. A surrender of a Mad. 1 ; Whitchurch v. Same, 2 P. Wms. leasehold estate to the reversioner creates 236. a merger, but will never be allowed to 2 CUft V. White, 12 N. Y. R. 519 ; defeat the rights of a third party, which James v. Morey, suiira. have mtervened before the merger took 3 Gardner v. Astor, 3 Johns. Ch. 53 ; effect. Gasliill v. Turner, 3 Cal. 11. 334. Stow V. Ellis, 6 ib. 398 ; Gibson v. Cre- * 3 Prest. on Con. 309 ; Lee's Case, 3 hore, 3 Pick. 475 ; Mechanics, &c., v. Ed- Leon. 110 ; Plowd. 418. wards, 1 Barb. R. 271 ; Breese v. Bauge, ^ 3 Prest. on Con. 310. SBC. V.j SURRENDER. 367 that, as a merger is the sinking of one estate in another by the con- clusion of law, the law will not allow it to take place, to the preju- dice of creditors, legatees, infants, husbands, or wives.^ § 506. The estate in reversion or remainder must also be as large, or larger, than the preceding estate. An estate for years may merge in an estate for life, or any other freehold, even if the term be for a thousand years, and although, according to all calcu- lation from the utmost length of human life, it would certainly continue beyond the duration of any person's life ; for, in legal con- sideration, an estate of freehold is of greater extent, and of higher estimation, than any chattel interest. This rather curious doctrine of the law may, perhaps, be deduced from the dependent state of those who were formerly the tenants of these chattel interests ; and, from the power which, prior to the statute of 21 Hen. VIII. c. 15, the freeholder possessed, of defeating such interests, by suffering his own title to be impeached in a feigned action. An estate for years may also merge in an estate in fee ; and an estate pour autre vie in an estate for one's own life. So an estate for years may merge in another estate or term of years, in remainder or reversion .2 SECTION V. BY SURRENDER. § 507. A surrender is the yielding-up of an estate for life or years, to him that has the immediate reversion or remainder, wherein the particular estate may become extinct by mutual agree- ment between them.^ It is either in express words, by which the lessee manifests his intention of yielding up his interest in the premises to the lessor ; or hy operation of law, when the parties, without any express sui'render, do some act which implies that they have both agreed to consider the surrender as made. It differs from a release in that the latter operates by the greater estate de- scending upon the less ; while a surrender is the falling of a less estate into a greater. The term surrender ly operation of law is 1 Ih. 294, 373 ; 2 Eden, R. 162. ^ Co. Lit. 337, b ; Schieffelin v. Car- 2 3 Prest. on Con. 176 ; 4 Kent, Com. penter, 15 Wend. 405. 98. 368 LAW OP LANDLORD AND TENANT. [CHAP. XI. properly applied to cases where the owner of a particular estate has been a party to some act, the validity of which, he is by law, after- wards estopped from disputing, and which would not be valid, if his particular estate continued to exist. Thus where a lessee for years accepts a new lease from the reversioner, he is estopped from say- ing that his lessor had no power to make the new lease ; and, as the lessor cannot grant a new lease until the prior one has been surrendered, the acceptance of such new lease necessarily implies a surrender of the former one. Such a surrender is the act of the law, and takes place independently of the intention of the parties.^ All such acts, however, as bind parties to a surrender, operate by way of estoppel, and must be acts of notoriety, not less formal and solemn than the execution of a deed, as, for instance, livery, entry, acceptance of an estate, and the like.^ § 508. The person to whom the surrender is made must, as we have said, have an estate immediately in reversion or remainder ; but it is immaterial whether he has it in fee, in tail, or for life. For this reason, an under-lessee cannot surrender to the original lessor;^ but a lessee for years may surrender, to him who has the reversion only for years, though the lease be for several years, and the rever- sioner has it only for one year, or a less term.* And if a lessee de- mises part of his estate to the lessor, he may surrender the other part ; for the reversion of that part remains in the lessor.^ A sur- 1 Ld. Eaym. E. 402; Livingston v. = Lyon „. jjeed, 13 M. & W. 285; 7 Potts, 16 Johns. R. 28. After a lessee had Serg. & Raw. 374. Where one, not a underlet the premises to two separate ten- party to a lease, is shown to be in posses- ants, the landlord called on the under- sion of demised premises in subordination tenants and demanded the rent reserved, to such lease, the law presumes that he is forbade them to pay any more rent to the an assignee of the lessee ; but this pre- original lessee, and said he had taken the sumption is rebutted by proof that, during place oif the lessee's hands ; Judge Sand- the possession of the third party, the les- ford, of the New-York Superior Court, sor received from the lessee a surrender said it was impossible, on the facts of this of the term. Such surrender, if produced case, to resist the conclusion that there by the lessor, is an admission that the was a surrender, in law, of the term lessee, and not the occupant, was, at its granted by the original lease. Bailey v. date, tenant to the lessor. Durando et al. Delaplaine, 1 Sand. E. 5. A lease dated u. Wyraan, 2 Sand. R. 597. Dec. 1, 1855, and running three years and ^ 2 Prest. on Abst. 7. The doctrine of nine months, with power to remove build- surrender cannot apply, on a lease in fee, ings erected by the tenant, was held to be for there is no reversion. Springstein v. sm-rendered, and its provisions abrogated Schermerhorn, 12 Johns. E. 357. A sur- by a second lease, dated Dec. 6, 1856, render which cannot operate as such by containing different terms, and among reason of an intervening term will take them a clause for the surrender of the effect as a grant of the term. Agar v. premises at the expiration of the term. Brown, 2 Ellis, & B. .331. reasonable use and wear thereof, and * Hughes v. Robotham, Cro. Eliz. 302. damages by the elements excepted; and ^ 2 Eol. Abr. 494. An assignment of that under the second lease the tenant a lease by the lessee to the lessor as col- could not remove the buildings. Junger- lateral security for a debt, does not operate man v. Bovee, 19 Cal. E. 354. as a surrender or merger of the lease, but SBC. v.] SURRENDER. 369 render to an infant is good ; for his assent will be presumed till a disagreement appears.^ There can be no surrender, however, ex- cept by a party in possession ; and it can only be made to the per- son having a higher estate, in which the estate surrendered may merge. Therefore, a tenant for life cannot surrender to him in re- mainder for years ; nor to a tenant for years, who is ousted of his term before entry, for he has but a bare right. Neither can one joint tenant surrender to another.^ § 509. At common law, an express surrender of things lying in grant could only be made by deed, although a surrender of things in possession might be made by parol, without livery of seizin, or other formal mode of conveyance, as it was but a restoration of the particular estate to him, in reversion or remainder.^ But the stat- ute of frauds prohibits a term of years, or other interest in lands, to be surrendered, unless by deed, or note in writing, or by operation of law. A deed is not, therefore, necessary to effect a siirrender, since it may be by a note in writing. But no verbal arrangement or agreement between the parties can effect such a purpose, nor cancel a lease for years.* Therefore a mere parol agreement be- tween a landlord and tenant, to determine a tenancy in the middle of a quarter, is not binding.^ And although a tenant may agree in writing to surrender his lease for a particular purpose, which pur- pose is not effected, such conditional agreement will not operate as a surrender.^ But an unconditional agreement between the land- lord and a third person with the assent of the tenant, diiring the term, to rent the premises to such third person, followed by a change of possession and the payment of rent by the new tenant, amounts to a valid surrender of the old lease, and an acceptance thereof on the part of the landlord.'^ as a mortgage only. Breese v. Bange, 2 ^2 Stark. K. 379. Bailey v. Wells, 8 E. D. Smith, R. 474. And where a ten- "Wis. R. 141. Although such license, ac- ant abandoned the premises, the reletting corapanied by some act of the landlord, of them by the landlord at the request of indicating his acceptance of possession, a surety for the rent, and for his account, may, together, operate as a surrender, by does not amount to such a surrender of operation of law. Grimman u. Legge, 8 the premises as to discharge the surety. B. & C. 325. McKenzie v. Farrell, 4 Bosw. E. 192. " Coupland v. Maynard, 12 East, K. 1 2 Ventr. 208. 144; 3 B. & C. 478. 2 2 Rol. Abr. 494; Shep. Touch. 303; ' Whitney v. Myers, 1 Duer, R. 267. 2 Marsh. R. 33. The statute of New York of April 13, 3 Co. Lit. 338, a ; 1 Ventr. 242. 1860, which authorizes a tenant to quit * Rowan v. Lyttle, 11 Wend. E. 616 Farmer dem. Earl v. Ryers, Wils. 26 Matthews v. Sawell, 8 Taunt. R. 270 and surrender the lease of a building, which, without any fault or neglect on his part, shall be so injured by the elements. Peters v. Barnes, 16 Ind. E. 219. or other cause, as to become untenantable 370 LAW OF LANDLORD AND TENANT. [CHAP. XI. § 510. The technical and proper words of a surrender are, sur- render and yield up ; but any form of words, by which the intention of tlie parties is sufficiently manifested, will operate as a surrender.^ Thus if a lessee for years remise, release, discharge, and for ever quit claim to the lessor, all his right, title, and interest m or to such lands, it will amount to a surrender. Or if a lessee for life leases to the lessor for the life of the lessee, this is equivalent to a surren- der.^ But a written notice given by the tenant, of his intention to quit at a time when he believed his tenancy would expire, but which is afterwards discovered not to be the true time, will not operate as such.^ And where one tenant in common of a reversion agreed in writing with another, who was possessed of a term in the whole of the land, to give him a certain sum on a given day, when either a sale or a partition of the estate was to be made, as a compensation for quitting possession, and the other agreed to give up possession on a day subsequent to that fixed for the payment, it was held that the instrument did not operate as a surrender when signed.* Nor will an agreement between the lessor and a stranger that the lessee shall have a new lease, or an acceptance by a lessee of a new lease in trust for another, in either case amount to a surren- der.5 § 511. The erasure or cancellation of a deed will not divest the estate ; nor will the tearing-oif the names of the parties, or of the seals ; ^ or the destruction of the instrument by mutual consent, operate as a surrender ; because a deed is not the essence of a con- tract, but only the evidence of it ; and, therefore, the destruc- tion of the lease or contract would not follow upon the destruction of the deed.'^ This is a necessary consequence of the statute of frauds, which declares that no leases, estates, or interests, either of freehold or term of years, shall be assigned, granted, or surren- dered, unless by deed, or note in writing, signed by the party or his agent, or by act or operation of law. The statute, from the time of 29 Charles II., intended to take away the former mode of transfer- and unfit for occupation, seems to require * Weddall v. Capes, 1 Mees. & "Wels. no other formality to operate a surrender, 50 ; 1 Gale, 432. than that the tenant shall quit possession ^ Porris v. Allen, Cro. Eliz. 173 ; Com. and notify the landlord that he has done Dig. Surrender, H. L. 1. BO' " Doe dem. Courtail v. Thomas, 9 B. 1 Smith V. Mapleback, 1 Term K. 441. & C. 288 ; 4 M. & Ry. 218. 2 Ld. Raym. 402; 2 Rol. Abr. 497. ' Raynor v. Wilson, 6 Hill (N. Y.), R. " Doe dem. Murrell !). Milward, 3 Mees. 469; Rowan v. Lyttle, supra: Whitton v. & Wels. 328 ; 1 Home & Hurl. 79. Smith, Freeman, 85 ; Nicholson v. Halsey 1 Johns. Ch. R. 417. SEC. V.j SURRENDER. 371 ring interests in lands, by signs, symbols, and words only ; and, therefore, as liveiy of seizin on a parol feoffment was a sign of pass- ing the freehold, before the statute, but is now taken away, so the cancelling of a lease was a sign of a surrender, before the statute, which is now taken away, unless there be a writing under the hand of the party .1 The fact of cancellation, however, may be strong corroborating evidence in aid of other proof, such as the granting of a new lease to other parties, that a surrender in law has taken place .^ § 512. A surrender by act and operation of law is a case excepted out of the statute ; for the acceptance, by the tenant, of a new lease of the same premises, during the period of the first lease, will be deemed to be a virtual surrender of the former lease. It admits the capacity of the lessor to make such a lease, which he would not have witliout a surrender of the first lease, and the presumption of law is, that such lease has been surrendered ; for no man would take from another a lease of a farm or house, of which he has al- ready the legal control, and agree to pay him rent for it.^ This presumption is raised by the circumstances of the case, and by the acts of the parties ; showing that the acceptance of the second lease, even for a shorter term than the first, implies a surrender of the first. But as this presumption of a surrender arises from the acts of the parties, which are supposed to indicate an intention to that effect, it must follow, that where no such intention can be presumed without doing violence to .common sense, the presumption cannot be supported. The cases have settled, that simply receiving a second lease raises this presumption ; but if the acts of the parties, taken all together, are such as to rebut the idea of a surrender, then none ought to be presumed.* An acceptance of a surren- der will not be presumed from mere lapse of time ; nor from the circumstance that rent has been paid by a third person, and not by the original tenant.^ And the second lease, which is thus to work a surrender of the first, must be good and valid in law to vest in the lessee the term it professes to convey ; and must bind liim to a performance of its conditions on his part ; for, if such lease be void, 1 Roe V. Archbp. of York, 6 East, 86. * Van Rensselaer's Heirs v. Penniman, 2 Walker v. Richardson, 2 M. & W. 6 Wend. R. 579; Cro. Eliz. 605 ; 12 Johns. 882 ; 2 Y. & J. 536 ; Holbrook v. TirreU, R. 357 ; 16 ib. 28. 9 Pick. R: 105. ^ Doe v. Cook, 16 Bingh. 174 ; Cope- 8 Coleman w. Maberly, 8 Monroe (Ky.), land v. Watts, 1 Stark. 96. It is neces- E. 220 ; Jackson v. Gardner, 8 Johns. E. sary in every case, in order that the new 394; 6 East, 86, 90, 101. agreement may be effectual to work a 372 LAW OP LANDLORD AND TENANT. [CHAP. XI. its acceptance by the lessee is no surrender-^ If, therefore, a lease be made to a minor, it is no surrender of a former lease, unless he assents to it when at full age.^ Nor will it amount to a surrender if the new lease be made to one who is non compos mentis, for he cannot assume an obligation to pay rent.^ And the acceptance of a new lease by the same tenant at an increased rent will not be deemed a surrender where the lessee at the same time protests against the right of the lessor to exact an increased rent, claiming a renewal of the lease, at the original rent.* § 513. A lease to commence in futuro may operate as an imme- diate surrender of the first lease, but there cannot be a surrender to operate in futuro.^ And though a new lease is granted condition- ally, it may yet operate as a surrender in law ; as where a man made a lease for forty years, and the lessee afterwards took a lease for twenty years, upon condition that, if he did a particular act, the second lease should be void, and the lessee afterwards broke the condition, so tlaat the second lease became void, the first lease was, nevertheless, deemed to have been surrendered.^ But a parol agreement between a landlord and tenant, of a term of six years, that the tenant shall surrender his interest in the demised prem- ises, and that the landlord shall execute a new lease to a third per- son, does not operate as a surrender unless such new lease be executed, and pass an interest according to the contract and inten- tion of the parties ; although the tenant quits the premises, the surrender by operation of law, that it be rence of the landlord, been treated as the valid and sufficient to vest in the new landlord's immediate tenant. Thomas v. tenant or lessee, the estate or term con- Cook, 2 B. &. A. 119. Johnstone v. Hud- templated by the parties, and bind him dlestone, 4 B. & C. 922. And has been to pay the stipulated rent. Whitney v. acted upon in several American cases. Myers, 1 Duer, R. 266. Smith v. Niver, 2 Barb. E. 180; Bailey 1 Davison v. Stanley, 4 Burr. 2210 ; v. Delaplaine, 1 Sandf. E. 5 ; Logan ;;. Shieffelin v. Carpenter, 15 Wend. E. 404 ; Anderson, 2 Dougl. 101. In Whitney v. Smith V. Niver, 2 Barb. R. 180. A lessor Myers, 1 Duer, R. 266, it w,as held that who has consented to a change of tenancy an absolute parol lease, made by the land- and permitted a change of occupation and lord to a new tenant, during the term of received rent from the new tenant, cannot a written lease, with the consent of the afterwards charge the original tenant with first lessee, amounts to a surrender of the rent accruing during the occupation of the first lease. new tenant. Per Harris, J. s dqq jigm jiurrell v. Milward 3 Mees 2 76. ; Lloyd o. Gregory, Sir Wm. & Wels. 328 ; Cro. Ehz. 605. A tenant Jones, 405. of a lease under seal, agreed without seal, 3 Thompson v. Leach, Comb. 438-468. that if he failed to perform certain things, * Tracy v. Albany Exch. Co. 3 Seld. he would relinquish his lease ; held, that R. 472. This doctrine of a surrender by though for want of a seal this could not operation of law has been extended to operate as a defeasance, it was operative cases in which the tenant has not himself as a contingent surrender, taking effect taken a new lease, but has put a third per- absolutely on failure. Allen v. Jaquish, son in possession of the premises, who has 21 Wend. E. 628. with liis own concurrence and the concur- " Co. Lit. 218, b; 1 Saund. E. 236 b. SEC. V.J SUERENDEE. 373 third person enters and remains in possession for the space of a year, and pays rent to tlie landlord ; for the original lease remains in force, and the landlord may maintain an action of covenant for rent against the original tenant, for rent subsequently accrued.^ Nor will a recital in a second lease, that it was granted in part con- sideration of a surrender of a prior lease of the same premises, amount to a surrender by deed, or note in writing, of such prior lease ; because it does not purport by its terms to be a surrender or yielding-up of the interest.^ § 514. A tenancy from year to year, or for years, cannot be sur- rendered by a mere agreement of the landlord to accept a third person in the place of his tenant, unless the agreement be in writing, or such third person actually takes possession. In the lat- ter case it is held, that a parol agreement between a landlord and tenant from year to year, that another tenant should be substituted in his place, who was accordingly substituted, is a sufficient surren- der, under the statute of frauds, to determine the former tenancy.^ It has been held, also, that if a landlord attest a notice, given by a lessee to his under-tenant, to pay rent to the landlord, and have knowledge of its contents, it will terminate the tenancy of the les- see, and discharge him up to that time.* Where a sole tenant from year to year, before the termination of his tenancy, entered into an agreement with his landlord for a lease, to be granted to him and another jointly, and both entered upon and occupied the premises jointly ; it was held, that the. first tenancy was determined, though the lease was never executed piirsuant to the agreement.^ So where the tenant underlet the premises, and the landlord accepted the under-tenant as his tenant, and collected rent from him, which arrangement was assented to by the original tenant ; the court held that this amounted to a virtual surrender of the tenant's interest, by operation of law.® 1 Schieffelin v. Carpenter, 15 Wend. K. sented to a reletting, there was held to be 400. 110 surrender, but that the original lessee 2 Eoe dem. Berkely v. York, 6 East, was still liable for a deficiency. Ogdea v. 86 ; 2 Smith, 166. Eowe, 3 E. D. Smith, R. 312. 8 Stonei). Whiting, 2 Stark. 235; Whit- ^ Hamerton v. Stead, 5 D. & E. 206; ney v. Myers, supra. 3 B. & C. 478. * Harding u. Crethorne, 1 Esp. 57. •! Thomas k. Cook, 2 B. & A. 119. The Under a lease with the usual provision plaintiff leased to the defendant a house that if the premises became vacant, the in the city of New York for the term of landlord might relet, and charge the ten- one year from the first of May following ; ant with any deficiency of rent, the tenant and the defendant soon after, being desi- gave notice of his inability to continue to rous of giving up her lease, made known pay rent, and the landlord thereupon con- her wishes to the plaintiff; who then en- 32 374 LAW OF LANDLORD AND TENANT. [CHAP. XI. § 515. An actual and continued change of possession, by the mutual consent of the parties, will amount to a surrender by opera- tion of law ; whether the possession is delivered to the landlord himself, or to another in his behalf.^ Thus, where the owner of a ferry leased it to a person verbally, for a certain rent, but the man, at the end of a few weeks, finding it unprofitable, proposed to become the servant of the owner as boatman, which was assented to, and he received wages for his services ; the court decided that this was a surrender to the owner of his interest in the ferry .^ And although a tenancy from year to year is not determined by a parol license from the landlord, to quit in the middle of the quar- ter,^ yet if, in such a case, both parties act upon such license, and the landlord takes possession, so as to render it impossible for the tenant subsequently to use or occupy the premises, the tenancy is thereby legally determined.* So, in Massachusetts, it was held that a lease of a dwelling-house, under seal, was determined by the delivery of a key to the lessor, accompanied by his receipt of it and putting another tenant in the house.^ But where a surrender is effected by a change of possession, the consent of all parties to the change of tenancy seems to be necessary. For where a tenant from year to year agreed by parol with the landlord's agent to quit at the ensuing quarter-day, and the premises were relet by auction, at which the tenant attended and bid, but the new tenant was not let into possession, as the old tenant refused to quit ; it was held that this did not amount to a surrender by operation of law.^ tered into a new agreement in writing '■ Randall v. Rich, 11 Mass. R. 494- with another person, to assume the first Davis v. Acklom, 6 M. & G. 672. In this lease and pay the rent thereby reserved ; case it is held, that where there are two it was held, that the new agreement he- landlords, an acceptance of the key by tween the plaintiff and such third per- one binds the other, where the latter son, operated to discharge the defendant leaves the management of the business to from the covenants of her lease, and was tlie former. a virtual acceptance by the landlord, of •> 2 Bing. 54; 7 Moore 298' 3 N the surrender which she offered to make Hamp. R. 204, 502. Mere proof that the when she found the substituted tenant, key had been delivered to a servant at the Murray v. Shave, 2 Duer, R. 183. landlord's house, and a subsequent decla- 1 HaU V. Burgess, 5 B. & C. 388 ; Reve ration that the key had been lost or mis- V. Bird, 1 C. M. & R. 37 ; 2 M. & R. 438, laid, is no evidence of an acceptance of a note. Wood «. Partridge, 11 Mass. R. surrender. Harland v. Brownley, 1 Stark. 4:98. R. 455. Nor will an acceptance he pre- » ll^*,f "■ J^S.""^^'' 6 ?■ ^ C. 703. sumed, from the circumstance of the rent 8 MoUett "■ Brayne 2 Campb. R. 103 ; having been paid, not by the original ten- Thomson «. Wilson, 2 Stark. R. 379; 1 ant, but by a third person. Copeland v. McClel. & Y. 146. Watts, 1 Stark. 95 ; or by the mere nro- 4 Whitehead c. Clifford, 5 Taunt. E. duction of the lease with the names of 518 ; Gnmman « . Legge, 8 B. & C. 824 ; the parties erased. Courtail v .Thomas 9 8 Bing. 462; 2 C. & P. 268; Smith o. B. & C. 288. iaii ,; . a nomas, » Niver, supra. SEC. v.] SURRENDER. 375 § 516. If a landlord underlets the premises, "vrithout notice to the tenant that it is on his account, it dispenses with a surrender on the part of the tenant.^ And where tenants holding from year to year, under the same landlords, agree to exchange with the consent of the agent of both landlords, and take possession, it will oper- ate as a surrender of the old tenancies, and the creation of new demises.^ But no mere agreement between a landlord and tenant, for the substitution of another tenant, or any other act of a land- lord which can be referred to a different motive, will amount to a surrender.^ Where, however, A. leased to B. for eight years, B. ' assigned to 0., and C, on application by A. to have the premises, made with A. the following agreement : " A. to have the premises on the terms mentioned in the original lease, and to pay £S. 10s. over and above the rent annually, towards the good-will ; " it was held, that this agreement was not an under-lease from year to year, but a surrender of the original term ; since the lessor was to have the premises on the terms of the original lease, and one of those terms was, at the then present time, a right to hold the premises for the unexpired term.* Where a tenant from year to year underlet the premises, and the original landlord accepted the under-tenant as his tenant, with the lessee's assent, but there was no surrender in writing of the lessee's interest, and, the rent being subsequently in arrear, the landlord distrained on the under-ten- ant, it was held, that these circumstances constituted a valid surrender of the lessee's interest.^ But a deed executed between landlord and tenant, reciting " that it had been agreed that the tenant should quit and deliver up the premises, that a valuation of his effects upon the premises should be made, which, in the mean time, were to be assigned, and which accordingly were assigned to trustees for the landlord," operated as a conditional surrender only.^ § 517. The agreement to substitute must he mutual, otherwise the tenant will not be discharged from his liability. As where two partners agree to hold for three years, with power to extend the 1 "Walls V. Atcheson, 3 Bing. 462 ; 2 relation of landlord and tenant. Peter v. C. & P. 68. The necessity of a written sur- Kendall, 6 B. & C. 703. render is dispensed witli, where a lessee ^ Bees v. WilUams, 2 C. M. & K. 581 ; quits in the middle of a term, and the les- 1 Tyr. & Gr. 23. sor lets the premises to another ; and a ' Griffith v. Hodges, 1 C. & P. 419. surrender of the term is effected by any * Smith v. Maplebacli:, 1 Term R. 441. other new arrangement between the par- ^ Thomas v. Cook, 2 B. & A. 119; 2 ties, which is inconsistent with the former Mees. & Wels. 882. " Coupland ;;. Maynard, 12 East, 184. 376 LAW OP LANDLORD AND TENANT. [CHAP. XI. term to seven, on notice. Before the expiration of the three years, or any notice being given, one of the partners retired, and another was admitted in his place. Notice was afterwards given, by the continuing partner, for an extension of the term, and the landlord, by letter, expressed himself willing to grant a new lease to him and the new partner, but the letter was not communicated to the retiring partner, so that the agreement was not mutual, nor was any lease prepared; the landlord received rent, first from the continuing partner alone, and afterwards from him and the new partner. The retiring partner was held not to be discharged from his liabiUty for rent during the remainder of the three years.^ And if there is any fraudulent concealment on the part of an out- going tenant, the tenancy will not be dissolved ; as if he conceals the fact, that the party introduced by him has compounded with his creditors.^ § 518. The effect of a surrender is, to terminate the relation of landlord and tenant, and with it all the obligations of the parties to that relation ; but it does not discharge the lessee from the pay- ment of rent already due.^ And in order to guard against the consequences which might otherwise result from a surrender, in discharging an imder-lessee from the payment of rent, and the conditions and covenants annexed to the lease, in cases where he cannot be persuaded to concur in the arrangement, the statute of 4 Geo. II. c. 28, provided, that if a lease be surrendered in order to be renewed, and a new lease given, the relation of landlord and tenant, between the original lessee and his under-lessee, should be preserved ; and it placed the chief landlord and his lessees and the imder-lessee, in reference to rents, rights, and remedies, exactly in the same situation as if no surrender had been made.* In conform- 1 Graham v. Whichelo, 1 Cr. & M. 188 ; has parted with his rerersion to the lessor, 3 Tyr. 201. nor can the surrenderee leave it, because, 2 Bruce v. Ruler, 2 Man. & Ry. 3. although the reversion to which it was A surrender is never allowed to operate in- incident has heen conveyed to him, yet as juriously upon the rights of third parties ; soon as it was so conveyed, it merged in and therefore a tenant cannot, by a surren- the greater reversion of which he was al- der of his lease to his landlord, aftect the ready possessed, and the consequence is, estate or rights of his under-lessee. Shep. that the under-lessee holds without the Touch. 301; McKenzie v. Lexington, 4 payment of any rent, except where the Dana, R. 129. But although a tenant who contrary has been expressly provided by has made an under-lease cannot by a sur- statute. Smith's Land. & Tenant, 232. render prejudice his tenant's interests, ^ Shepard v. Merrill, 2 Johns. Cli. R. yet he will himself lose the rent he has 276 ; Sperry v. Miller, 8 N. Y. R. 336. reserved upon the under-lease ; for since Nor his surety. McKenzie v. Farrell, rent is an incident to the reversion, the supra. surrenderor cannot collect it, because he * 4 Kent, Com. 103. SEC. TI.] CONTINGENT MODES OP DISSOLVING A TENANCY. 377 ity to the English statute, the Revised Statutes of New York have enacted, that if a lease be surrendered, in order to be renewed, and a new lease be made by the chief landlord, such new lease shall be good and valid, to all intents and purposes, without a sur- render of all or any of the under-leases, derived out of the original lease so surrendered ; and the chief landlord, his lessee, and holders of such under-leases, shall enjoy all their rights and interests in the same manner, and to the same extent, as if the original lease had been still continued ; and the chief landlord shall have the same remedy by distress or entry, upon the demised premises, for the rents and duties secured by such new lease, so far as the same do not exceed the rents and duties reserved in the original lease so surrendered.^ In those States in which this provision has not been adopted, the question may arise how far the under-tenant (whose derivative estate still continues) is discharged from the rents and covenants annexed to his tenancy, in which, as Chan- cellor Kent intimates, upon the authority of the English cases, that inequitable result is indicated.^ SECTION VI. CONTINGENT MODES OP DISSOLVING A TENANCY. (a.) Premises taken for Public Use. § 519. In addition to the several methods of dissolving a tenancy which have been mentioned, it further remains to be observed, that a lease for years, made by a disseizor or other wrong-doer, is absolutely determined by the entry of the disseizee, or rightful possessor. But if the disseizee confirms the lease when out of possession, he cannot, after entry, avoid it ; because he has, by his confirmation, parted with so much of his ancient right as to deprive himself of the power of avoiding it.^ And, whenever the estate which a lessor had, at the time of making the lease, is defeated or in any other manner determined, the lease is extinguished with it.* 1 1 K. S. 744. ^ 1 I'ep. 147, a ; Bac. Abr. Lease, 1. 2 4 Kent, Com. 103 ; Barton's Case, * Hervey's Case, 4 Leon. R. 161. Moor, 94 ; Webb v. Russell, 3 Term R. In general the relation of landlord and 401. ' tenant is destroyed by a judgment of evic- 32* 378 LAW OP LANDLOED AND TENANT. [CHAP. SI. If, therefore, a lot of land, or other premises under lease, is required to be taken, for city or other public improvements, the lease, upon confirmation of the report of the commissioners, becomes void. And, in the event of closing up a street or road, on which the leased premises are situated, if they are no longer upon, or contiguous to, a public highway, the lease becomes void.^ But if only a part of such lot is taken for such purposes the lease is not thereby extinguished, even_pro tanto, except by force of a statute ; nor is the lessee discharged of his liability to pay rent for the residue of the term, but the lessor and lessee are each entitled to recover compensation for their respective damages.^ Nor will the appro- priation, by the public canal commissioners, of a mill-privilege, which was the subject of a demise, amount to a discharge of the lessee from all his obligations ; for he is entitled to compensation for the injury he has sustained.^ (b.) Destruction of Premises. § 520. When the subject-matter of the demise is entirely de- stroyed, the lease perishes with it. As where there is a lease for years of particular apartments in a building of several stories, and the whole building is destroyed by fire at any time during the term, the lessee's whole interest is gone ; for, having no estate in the land, the thing granted, that is, the tenement, has ceased to exist. This principle was recognized and acted upon in the case of Kerr ^ King v. The Merchants^ Hxcliange Company, in the city tion against the tenant, by one having a contemplated improvement, when such superior title, and without an actual evic- land is held for a term of years under tion the tenant may purchase in the better lease, and consequently if there be a cove- title for his own protection ; but such is nant for renewal of the term, and such not the case where successful resist- renewal at the rent reserved will add to ance could have been made to the recov- the value of the tenant's interest in the ery, or the tenant has neglected to give land, it is their duty to award such value notice to his landlord of the suit for pos- in addition to the present value of the session. Mills v. Peed, 16 Ken. R. 180. term to the tenant ;md not to the landlord, 1 2 N. Y. Eev. Laws, 1813, p. 417, and the latter being entitled only to the value Laws of 1824 ; Mills v. Baer's Ex'rs, 24 of the reversion after the expiration of Wend. 454; Barker v. Hodgson, 3 M. & the time which would have been embraced S. 270. in the renewed lease had the same been 2 Parks V. City of Boston, 15 Pick. E. executed. In the matter of William and 198 ; Patterson v. Boston, 20 ih. 159. Anthony Streets, 19 AVend. R. 679. The 3 Folts V. Huntley, 7 Wend. 210. The tenant is to be considered owner of the commissioners who estimate the loss and terra, and his landlord owner of the rever- damage consequent upon taking land for a sion, and the interest of each is to be re- public improvement, are bound to take into garded by the commissioners. Gillespie consideration all the covenants and condi- v. Thomas, 15 Wend. E. 464 ; 10 ib. 139 ; tions of a lease of land required for the 2 Sandf Ch. 485. SEC. VI.] USING THE PREMISES FOE AN ILLEGAL PURPOSE. 379 of New York. The company had made a lease for years of cer- tain apartments in the basement of the Exchange, previous to the destruction of tliat building by the great fire of 1835 ; upon the rebuilding of the Exchange, the lessees applied to be let into possession of sijnilar apartments in the basement, on the ground of their lease having not yet expired ; but the court held that their lease was extinguished by the destruction of the premises, and that they had no interest in the new building.^ (c.) Using the Premises for an illegal purpose. § 521. A lease of premises, for the purpose of prostitution, or for any other immoral object, is a contract against good morals, and absolutely void.^ And the doctrine has been carried so far in England as to prevent a landlord's recovery of rent for the use of premises, which have been occupied with his knowledge for pur- poses of prostitution, though not originally let for that purpose.^ But if the original agreement was honest, and the premises are subsequently appropriated to vicious uses, without the landlord's connivance, or if the woman merely lodges there, and receives her visitors elsewhere, the lease is not thereby avoided at common law.* It is provided, however, by statute, in New York, that if the lessee of any dwelling-house shall be convicted of keeping a bawdy-house, the lease or agreement for letting the same shall thereupon become void, and the landlord may enter upon the premises so let, and shall have the same remedies to recover possession, as are given by law in case of a tenant holding over after the expiration of his lease.^ 1 3 Edw. Ch. R. 315 ; Winton c. Cor- Commonwealth v. Harrington, 8 Pick. E. nish, 5 Ohio, R. 303. See also, Andrews 26 ; and see 22 Pick. 478 ; 8 Gush. 584 ; V. Needham, N07. 75; Cro. Eliz. 666; II ib. 600. Starkwell v. Huston, 11 Met. R. 448. In ^ Jennings v. Throgmorton, 21 C. L. the case of Graves ;;. Berdan, 26 N. Y. R. & E. R. 744; R. & M. 251. 498, the Court of Appeals recognized this * Appleton v. Campbell, 2 Car. & Pay. principle, and absolved the lessee from his 847. The New York Common Pleas hold covenant for the payment of rent, where that a lessor's knowledge of facts, from the building was entirely destroyed by which he may reasonably suppose an in- fire, and he had no interest in the land, tention on the part of a lessee to use In Louisiana, the failure of a lessor to the premises for an illegal purpose, fol- maintain the premises in tenantable con- lowed by their actual use for that purpose, dition determines the lease. Coleman v. within the observation of the lessor, is not Haight, 14 La. An. 564. in itself sufficient to avoid the lease, unless 2 Girardy v. Richardson, 1 Esp. R. 13. the lessor is a direct party to the illegal A landlord who lets his premises to a wo- intent. Updike v. Campbell, 4 E. D. man of ill fame, knoycing her to be such. Smith, R. 570 ; and see O'Brien v. Brie- with the intent that the same shall be used tenbach, 1 Hilt. E. 304. for the purpose of prostitution, and they * 2 R. S. 702, § 29. As to how far a are so used, is indictable at common law. tenant will be justified in terminating a 380 LAW OF LANDLORD AND TENANT. [CHAP. XI. (d.) Tenant's Disclaimer. § 522. "We have seen, when discussing the svibject of a forfeiture of the term, that a tenant would, under certain circumstances, lose the benefit of his estate, by assuming a position hostile to his landlord. In addition to the several modes of dissolving the relation of land- lord and tenant that have already been mentioned, we may add that, at common law, whenever a tenant disclaims to hold under his land- lord, and therefore refuses to pay rent, asserts the title to be in himself, or unlawfully attorns to another, he forfeits his term, and may be ejected without any notice to quit.^ The acceptance of a lease by a tenant from a third person is a fraudulent attornment, and the original landlord is entitled to recover, on proof of the acknowledgment of the tenant, that he entered into the premises under such landlord.^ But a mere denial of his landlord's title by parol, or the payment of rent to a third person, will, in neither case taken singly, amount to such a disclaimer as will forfeit the lease.^ A refusal, however, by the tenant to pay rent, on the ground that another person had ordered him not to pay, has been held to be evidence of a disclaimer of the tenancy.* But the com- mon-law doctrine on this subject, as we have stated, has been entirely ignored in this country ; and it is now well settled, at least in New York, that no mere verbal disclaimer of the landlord's title by a tenant will forfeit the estate.^ lease, when the landlord erects a nuisance 633 ; Doe dem. Graves v. Wells, 2 Per. & upon the premises, see, ante, §§ 880, 381 Dav. 396 ; 10 Ad. & El. 427. and notes ; § 375 in note. In Louisiana, * Doe dem. Whitehead v. Pittman, 2 it is held that a lessor may rescind a lease, Nev. & Man. 673. A disclaimer is a re- where the building is used for a purpose nunciation by the lessee of his character not contemplated by the parties at the as tenant, either by setting up a title in a time of entering into the contract, and third person, or by claiming title in him- which is injurious to him. CoflBn v. Scott, self. See the judgment of Chief Justice 7 Bob. La. R. 205. Tindal, in Doe dem. Williams v. Cooper, 1 Jackson v. Wheeler, 6 Johns. R. 272 ; 1 M. & G. 139 ; Doe dem. Davies v. Evans, Woodward v. Brown, 13 Peters, R. 1 ; 9 M. & W. 48 ; and Doe d«m. Bennett v. Lewis u. Ringo, 3 A. K. Marsh. 247; Long, 9 C. & P. 773, as to what facts will Jackson v. Vincent, 4 Wend. R. 633 ; For- amount to evidence of a disclaimer. And tier V. Balance, 5 Oilman, R. 41 ; 8 Harris, see Doe dem. Bennett p. Long, 9 Car. & 398 ; Duke v. Harper, 6 Yerg. 280 ; 8 W. Pay. 778 ; Doe dem. David v. Williams 7 & S. 226. ih. 322. , 2 Jackson v. Harper, 5 Wend. R. 246. ^ j^^ie, § 488, and note. ^ Van Schaick v. Vincent, 4 Wend. R. SEC. I.] THE LIABILITY OP A TENANT HOLDING OVER. 381 CHAPTEE XII. THE CONSEQUENCES OF A DISSOLUTION. § 523. The tenancy being ended, the right of possession reverts to the landlord ; who may at once re-enter upon the premises, if he can succeed in doing so peaceably ; but if the tenant continues to hold, and the landlord breaks in forcibly, so as to endanger a breach of the peace, he runs the risk of an indictment, as well as of an action of trespass at the suit of the tenant.^ The tenant, on the other hand, is bound quietly to yield the possession to his land- lord, although he still retains a reasonable right of egress and regress, for the purpose of removing his goods and chattels. He may, also, in certain cases, as we shall see presently, have a right to take the emblements, or annual profits of the land after they shall have matured ; and, in any event, unless restricted by some positive agreement to the contrary, may remove such fixtures as he has erected during his occupation, for his comfort, convenience, or profit. We shall, in this chapter, treat of each of these subjects in their order. SECTION I. THE LIABILITY OF A TENANT HOLDING OVER. § 524. As soon as the tenancy has expired, by its own limitation, the tenant ought peaceably and quietly to surrender the premises, 1 See Bex v. Smith, 1 M. & Rob. 155. landlord for trespass in entering the prem- Per Ld. Tenterden. Newton v. Harland, ises, after the tenant had removed there- 1 M. & Gr. 644; Overdeer v. Lewis, 1 from, there being no evidence of actual Watts c& S. 90 ; Ives v. Ives, 13 Johns. R. damage, and no circumstances from which 235 ; Watton v. File, 1 Dev. & Bat. 567 ; improper motives on the part of the land- Beecher v. Parmelee, 9 Verm. 352 ; John- lord could be presumed, the tenant was son « Hannahan, 1 Strobhart, R. 313; allowed to recover only nominal damages. Jackson v. Ellsworth, 20 Johns. R. 180 ; 1 Rawle,R. 27; 11 Barb. R. 373; Shan- Flaherty V. Andrews, 2 E. D. Smith, R non v. Burr, 1 Hilt. R. 39. 529. In an action by a tenant against the 382 LAW OP LANDLORD AND TENANT. [CHAP. XII. with all such improvements, buildings, and fixtures, as belong to them ; ^ and his neglect or refusal to do so, will, without any notice to quit, render him liable to an action of trespass for damages, or subject him to certain other penalties imposed by law. But, if he refuses to quit, the landlord will not be justified in resorting to force to put him out, but must pursue his legal remedies.^ If he has let the whole, or any part of the premises, to an under-tenant, who is in possession at the termination of the lease, he must get him out ; otherwise he will not be in a situation to render that complete possession to which the landlord is entitled. And unless the entire possession is delivered up, the tenant's responsibility for rent will not cease, although it may have become impossible for the tenant to give the landlord full possession, in consequence of the obstinacy or ill-will of an under-tenant, to whom he has let a part or the whole of the premises, and who refuses to quit ; for, in such case, the landlord may refuse to accept the possession, and hold the original tenant liable.^ Where an under-tenant held over after the expiration of a term, against the will of the lessee, and, during the holding-over, the lessee distrained for rent previously due ; it was held, that the lessee was liable for rent during the period of the holding-over, but not for a whole year's rent, as a tenant who holds over does not necessarily become a tenant from year to year.* The landlord may, however, in such case, discharge the original lessee, by accepting the under-tenant as his immediate lessee ; as by accepting the key from the original tenant whilst the under-tenant is in possession, or by accepting rent from him, or by any other act tantamount to it. But the mere circumstance of the 1 The word "improvement," as used tenancy has expired, a landlord may take in a lease, embraces every addition, altera- possession of his premises by any means tion, erection, or annexation made by the short of personal violence ; and he may lessee during the term for his own use. break into a dwelling-house for that pur- It is more comprehensive than the word pose. Todd v. Jackson, 2 Dutcher,E. 525; " fixtures," which is necessarily included Mussey v. Scott, 32 Vt. R. 82 ; ih. 575 ; in it. French v. The Mayor, &c., 16 How. Turner v. Meymott, 1 Bingh. R. 158. In R. 220 ; 2 Man. & Gr. R. 727. Louisiana, where a landlord, instead of 2 Newton v. Harland, 1 Man. & Gr. resorting to the means provided by law 644 ; Darrell v. Johnson, 16 Pick. R. 266. for obtaining possession of his premises, A tenant who holds over after the ex- takes upon himself, without authority, to piration of his lease cannot maintain tres- turn out the tenant and his family, he will pass, qiiare clausum freijit, against his land- be liable in damages, and it will be no ex- lord, who makes a forcible entry ; whether cuse for him that the removal was effected it be to regain possession, or to attach the without violence or inquiry. Thayer v. tenant's property therein ; but the land- Littlejohn, I Rob. La. R. 140. lord will not be justified in a personal as- ^ Harding v. Crethorne, 1 Esp. 57. sault upon him under these circumstances. * Ibbs v. Richardson, 1 Per. & Dav. Sampson v. Henry, 13 Pick. R. 36 ; Mea- 618 ; 9 A. & E. 849 ; Warren v. I-Qng, 8 der V. Stone, 7 Met. R. 147. "When the Mees. & Wels. 671. SEC. I.] THE LIABILITY OF A TENANT HOLDING OVER. 383 landlord signing a notice, by which a tenant, whose term has expired, orders his under-tenant to pay the rent to him in future, is not evidence of his agreement to accept him as a tenant, unless it appears that he knew and understood the contents of the notice. ^ And whenever a tenant remains in possession, it is a question for the jury to determine whether he intends to continue the tenancy.^ § 525. -A tenant at will becomes a trespasser by any unreason- able delay to remove from the premises, after his estate is deter- mined : and a tenant for years may be so treated immediately after his term has ended ; ^ although trespass will not lie against a ten- ant at sufferance, before actual entry by the landlord.* But in addition to the common-law liabilities, there are statutory penalties which a tenant will incur by his neglect or refusal promptly to surrender possession. The statutes of 4 Geo. II. c. 28, and 11 Geo. II. c. 19, declared that if a tenant held over, after demand made and notice in writing to deliver up possession, or if he held over after having himself given notice of his intention to qiiit, he should be liable to pay doiible rent so long as he continued to hold over. The provisions of these statutes have been re-enacted in New York, though they are not generally adopted in this country.^ The statutes referred to declare,^ that if any tenant for life, or for years, or any other person who may have come into possession of any lands or tenements, under or by collusion with such tenant, shall wilfully hold over any lands or tenements after the expiration of the term, and, after demand made, and one month's notice in writing, given in the maimer therein prescribed, requiring the pos- session thereof by the person entitled thereto, the person holding over shall pay to the person kept out of possession, or his repre- sentatives, at the rate of double the yearly value of the lands and tenements so detained, for so long a time as he shall hold over, or keep the person entitled out of possession. This statute does not apply to a mere weekly or monthly tenancy, but to a tenancy for life or years only.'^ And it applies only to cases in which the ten- ant has been guilty of fraud or contumacy, and not to those in which he maintains possession bond fide, or upon any fair ground of defence.^ Therefore, where there had been a treaty for a further 1 Harding v. Crethorne, supra. ' Rising v. Stannard, 17 Mass. K. 282. 2 Jones V. Shears, 2 Har. & Wol. 43; ' Kent, Com. 115. 4 Ad. & El. 832 ; 6 Nev. & Man. 428. « 1 K. S. 745, § 10. 8 Ellis .,'. Paige, 1 Pick. R. 43 ; Dan- ' Lloyd ,;. Bisbee, 2 Campb. R. 453. forth V. Sergeant, 14 Mass. R. 491. ' Hall v. XJellentine 7 Johns. K. 536. 384 LAW OP LANDLORD AND TENANT. [CHAP. XII. term between the landlord and tenant, which afterwards fell through, the tenant who had held over during the treaty was adjudged not to be within the meaning of the statute.^ § 526. A demand of possession, and notice to quit, in writing, are necessary in all cases in which the landlord would avail him- self of the statute ; for though, where premises are underlet for a certain definite period, no notice is required to put an end to the tenancy, yet the tenant who holds over beyond that term can only be charged for double rent from the time when a notice was served.^ But proof of service of notice to quit in writing is held to be a sufficient proof of demand ; ^ and, where the holding has been from year to year, the ordinary notice to quit, which is given for the purpose of determining the tenancy, serves, at the same time, as a good demand of possession under the statute.* § 527. An action lies in favor of the landlord, as well as of his legal representatives ; and, if the parties entitled to the action are tenants in common, each may bring a separate action for the double value of his moiety ; ^ but they cannot sue jointly where there has been no joint demise.^ The statute requires notice to be given to the tenant in possession ; and the rules relating to service of notice to quit, formei'ly mentioned, are applicable here. If the notice is given to a single woman, as the tenant, and she afterwards marries, the landlord may maintain his action for double rent against her husband, without serving another notice on him.'' § 528. Tlie notice ought to be given before the expiration of the term, and the landlord will then be entitled to recover double rent, as from the period at which the term expired.^ It may, however, be given after the expiration of the term ; and, if the landlord has done no act acknowledging the continuance of the tenancy, he will be entitled to double rent or value from the time of demand, so long as the tenant continues to hold over. But if the rent is pay- able quarterly, and the demand be made in the middle of a quarter, he cannot recover single rent for the antecedent fraction of such quarter.^ If, after the expiration of the notice, the landlord receives single rent from his tenant, it is a question for a jury to consider whether he did not thereby intend to waive the notice and 1 "Wright V. Smith, 5 Esp. 205. ' Cutting v. Derby, 2 W. Black. 1077. 2 Cobb t). Stokes, 8 East, 358. « Wilkinson v. Hall, 1 Bing. N. C. 713. 3 Wilkinson v. CoUey, Burr. 2694; 8 ' I.uke v. Smith, 1 N. K. 174. Ad. & El. 582. 8 Cutting v. Derby, Black. R. 1076. * Hirst V. Horn, 6 Mees. & Wels. 393. » Cobb v. Stokes, supra. SEC. I.] THE LIABILITY OP A TENANT HOLDING OVER. 385 re-establish the tenancy ; for, in that case, the landlord's right to sue for double rent is gone.^ But the bringing of an ejectment suit, after seryice of notice to quit, is no waiver of the landlord's right to double rent.^ § 529. The statute also imposes a penalty upon such tenants as, having the power of terminating their leases by notice, shall notify the landlord to that effect, and afterwards refuse to deliver up pos- session at the time specified. It declares that, if any tenant shall give notice of his intention to quit the premises by him holden, and shall not accordingly deliver tip the possession thereof at the time specified, the tenant, his executors, or administrators, shall from thenceforward pay to the landlord, his heirs, or assigns, double the rent which he should otherwise have paid, to be levied, sued for, and recovered at the same time, and in the same manner, as the single rent ; and such double rent shall be continued to be paid during all the time the tenant shall continue in possession.^ As tliis statute directs the double rent to be recovered in the same manner as single rent, the landlord may either bring an action of debt for it, or he may distrain. A mere verbal lease is considered to be within the meaning of this statute ; and verbal notice to quit, by the tenant, is sufficient to make him liable for double rent, in case he holds over.* But, to bring the tenant nnder the statute, his notice must be direct and positive ; for, in a case where a ten- ant gave his landlord notice that he would quit upon a contingency, as soon as he could find another situation, and he did afterwards find another situation, but neglected to quit the premises ; Lord Ellen- borotigh held the notice too vague, and that the case did not come within the statute.^ The statute only applies to those cases in which the tenant has the power of determining his tenancy by notice, and where he actually does give a valid notice for that purpose.^ It may also be observed, that a tenant holding over, after notice to quit on his part, is only liable for double rent dur- ing his continuance in possession ; and need not give a fresh notice, after having once paid double rent, in order to get rid of his liabil- ity.^ The chief difference between these two sections of the stat- 1 Doe dem. Cheny v. Batten, Cowp. Wheeler v. Copeland, 2 Car. & Pay. 359 ; 243 ; Eyal v. Rich, 10 East, 48. 6 Term R. 864. 2 Soulsby V. Nevins, 9 East, R. 810. ^ Earrance v. Elkington, 2 Campb. 591. 3 1 N. Y. R. S. 745, § 11. ^ Johnston v. Huddleston, 4 B. & C. 4 Timmins .;. Rowlinson, Burr. 1603 ; 922 ; 7 D. & R. 411. 7 Booth V. McEarlaue, 1 B. & Ad. 904. 33 386 LAW OF LANDLORD AND TENANT. [CHAP. XII. ute seems to be, that in the former the notice whicli proceeds from the landlord must be in writing ; but in the other, proceeding from the tenant, it may be a mere verbal notice ; and that the one imposes double rent as a. penalty, and not as rent; while the other still treats the party as tenant, and recognizes him by that name, which the former does not.^ § 530. In addition to the penalty of double rent, imposed upon the tenant for holding over, the same statute also subjects him to an action for all special damages which the landlord may sustain, in consequence of his refusal to deliver possession, by enacting that the tenant " shall also pay and remunerate all special dam- ages whatever, to which the person so kept out of possession may be subjected by reason of such holding over ; and there shall be no relief in equity against any recovery had at law under this sec- tion."^ There is, likewise, in this State, a further provision against holding over, without express consent, after the determination of their particular estates by guardians, trustees to infants, and husbands seized in right of their wives, or by any other persons having estates determinable upon any life or lives. They are declared to be trespassers, and liable for the full value of the profits received during the wrongful possession. ^ This last provis- ion was taken from the statute of 6 Anne, c. 18 ; but the common law itself held the guardian, in such case, to be an abator, and gave an assize of mort d' ancestor against the disseizor ; with an action of trespass against the tenant pour autre vie or tenant for years holding over.* SECTION II. MXJTUAL PRIVILEGES AFTER DISSOLUTION. § 531. Independent of any statutory provision, the landlord may re-enter upon a tenant holding over, and remove his goods, with such gentle force as may be requisite for the purpose, and the tenant will not be justified in resisting him.s He may even enter I f°S^^P.'';^r}ji^- ^ ^^''' ^' ^^^- '°° "• farmer, 9 Wend. 201 ; Jones v. I Ti^Fd I 7' ^ f'i^?.'^' ^ ^'"^ (S. C), R. 64 ; 2 Watts 4 iV .' T' ii« S ^- 22^: 12 Ver. R. 273; Butcher v. 1 i Kent, Com. 116. Butcher, 7 B. & C. 899 • Hiilarv v Gav 6 Ives V. iTes, 13 Johns. R. 235 ; Jack- 6 Car. & Pay. 284 ^ ^' SEC. II.] MUTUAL PRIVILBGES AFTER DISSOLUTION. 387 by breaking open the door if unopposed, and there is no person in the house at the time.^ But lie cannot forcibly turn the tenant or his family out of possession ; and, if any person be upon the premises, forbidding the entry, a forcible entry will under such circumstances confer no right upon the landlord,^ and would subject him either to an indictment for a forcible entry under the statute, or to an action of trespass at common law.^ If the tenant, therefore, continties to hold over after the expiration of his tenancy, and persistently refuses to remove after being required to do so, the landlord must call in the assistance of the law to effect the tenant's removal, for the law gives him no authority to enter in that event.* The statute laws of most of the States have provided summary proceedings for the expulsion of the tenant in such cases, in addition to the common-law remedy of ejectment ; and we shall have occasion to examine these several proceedings in another part of our work. § 532. But though a landlord cannot regain possession of prem- ises held over by a tenant, in a forcible manner, by authority of law, it has been held that he may do so if he has an authority in fact, granted by the lease ; and that an agreement to give up possession, founded upon a good consideration, amounts to a leave and license, and justifies a landlord in entering and taking posses- sion.^ From this case it would seem that whenever a lease con- tains the usual covenant to yield up the premises quietly at the end of the term, the landlord may peaceably enter, and use such force as may be necessary to put out the tenant, as well as his goods ; and, if trespass be brought against him, may justify under a plea of leave and license. The entry being under an authority in fact, and not an authority in law, no subsequent abuse could render him a trespasser ah initio ; the entry, being peaceable, would at all events be lawful, and he might justify any subsequent force necessary to clear the land, on the ground of a lawful possession ; and such force would not make him a trespasser ah initio, because 1 Turner v. Maymott, 1 Bingh. E. 158 ; Taylor v. Cole, 3 Term K. 292 ; 7 ib. 431 ; Taunton v. Costar, 7 T. R. 431. Argent v. Durant, 8 ib. 403 ; in which it 2 Newton u. Harland, 1 Man. & Gr. was held, that the plea of liberum tenemen- 644. turn would be a good justification, in an 8 Hillary v. Gay, 6 C. & P. 284 ; 4 Kent, action of trespass by the ejected party, for Com. 116. an entry and expulsion. And see the * Sampson v. Henry, 11 Pick. R. 379 ; American cases stated under § 524, note 2. Newton v. Holland, 1 Man. & Gr. 625 ; 1 ^ Eeltham v. Cartwright, 7 Scott, 695. Scott, N. R. 491. These cases overrule 388 LAW OP LANDLORD AND TENANT. [CHAP. XII. he entered under an autliority in fact. And this, in truth, forms the distinction between this case and those before referred to ; for, in those cases, the entry being under an authority derived from the law alone, the subsequent force made the entry a trespass ab initio, because the defendants had no lawful possession to justify under. § 533. After the tenant has quit possession, and his tenancy is ended, he has still a right to enter upon the land, in order to remove his goods and utensils.'- But he can then take away such articles of personal property only as are detached from the free- hold ; for such fixtures as the law permits the tenant to remove must be removed before the expiration of the tenancy.^ Yet a tenant at will, when his interest is determined by a demand of possession on the part of the landlord, has no right to continue his possession for even a reasonable time to remove his goods ; though it seems he may enter to remove them, if he does not ex- clude the landlord.^ A landlord who leases to a cropper for the year, to receive part of the grain as rent, has a lien upon the grow- ing crop ; and it cannot be removed by the tenant, or those acting under him, until the rent is provided for.* So also where a tenant agrees to cultivate and bag the hop crop for the year, in payment of rent, the property in the hops is in the landlord, beyond the control of the tenant.^ Where, in a lease executed by both parties, a covenant was contained that, on the lessee's being removed from the demised premises, or dispossessed, he should be paid the value of the buildings and improvements made by him ; and that, on such payment being made, he should yield the possession ; an agreement by the lessor will be implied, that the lessee may retain possession until such payment is made, notwithstanding the term for which the premises were demised has expired.'^ In no case, however, has a tenant in common a lien upon the premises for advances made by him, for the purpose of making permanent improvements thereon, 1 2 Black. Com. 14; Ellis v. Paige, 1 * Case v. Hart, H Stanton, E. 364. Pick. R. 43. "Where a landlord agreed to ^ Kelly v. Weston, 20 Maine, R. 232. allow his tenant a reasonable time after ^ Van Rensselaer's Heirs d. Penniman, the expiration of the lease, to remove his 6 Wend. R. 569. Where a lease for a term buildings, and the tenant forfeited his of years contains a covenant on the part lease before the expiration of the term, of the landlord, that, at the expiration of the intention of the parties must be con- the term, the tenant shall be paid the ap- fined to its legal expiration, and not to the praised value of a dwelling-house to be wrongful act of the lessee in terminating erected by him on the demised premises, it, and the lessee can claim no right under or that a new lease for the same term of it. Whipley v. Dewey. years, at an appraised rent (excluding 2 Fitzherbert v. Shaw, 1 H. Black. 258. from the appraisement, the value of the 8 Doe V. Jones, 10 B. & C. 724. dwelUng-house), shall be granted to him • SEC. III.] tenant's eight to emblements. 389 except by express agreement.^ It may be observed, also, before leaving this part of our subject, that, on the expiration of a lease, whether by forfeiture, lapse of time, or otherwise, the lessor is not entitled to have the indenture of lease returned to him by the lessee, who has executed a counterpart, but each party may continue to hold his part of the lease.^ SECTION III. tenant's right to emblements. § 534. A tenant for life, or his representatives and under-ten- ants, as well as a tenant at will, is entitled to emllements ; that is, a right to take and carry away, after his tenancy has ended, such annual productions of the soil, as are raised by his labor ; as corn, hops, flax, roots, and the like.^ But this right does not ex- tend to such things as are not of annual growth, and do not require the labor of the tenant, but are the permanent and natural product of the earth, such as trees, fruit, grass, Graves v. Weld, 5 B. & Ad. 105; 2 equally hound by the same rule, and can Nev. & Man. 725 ; Whitmarsh v. Cutting, recover no more than the original rent re- 10 Johns. R. 361 ; ib. 424. 33* 390 LAW OP LANDLORD AND TENANT. [CHAP. XII. certain, and does not depend upon a contingency, so that, at the time he sows the crop, lie may know that liis term will not continue until he shall have reaped it, he will not be entitled to it, as emble- ments.i He may, however, sometimes claim it as an offgoing crop, or the value of it, by express stipulation with his landlord, or by the custom of the country, if such custom exists. § 635. This privilege is extended, also, to all cases where the ten- ancy has been unexpectedly determined without the tenant's fault ; or, in legal phraseology, has been put an end to, hy act of Gfod or the law. Thus, if a tenant for life dies before harvest time, and his estate comes to an end, that is an act of God, and his executors will be entitled to the crop. So, if a lease be made to a husband and wife, so long as they continue husband and wife, and they are afterwards divorced, the tenancy being dissolved by an act of the law, the husband may enter upon the land, and exercise this priv- ilege.^ The same rule holds where a tenancy is terminated by the act of the landlord, or by a notice to quit proceeding from him.^ But it is entirely different where the tenancy is put an end to by the act of the tenant himself ; for in such case he has no right to take away any of the productions of the land after his tenancy ends.* This is also the case, if he is guilty of a breach of any con- dition in his lease which forfeits the lease ; or holds for a certain term, subject to be defeated upon a particular event, and such event is brought about by the act of the tenant ; as if land be leased to a widow for twenty years, provided she remain a widow so long, and she marries, and so terminates the tenancy by her own act.^ § 536. But this right never exists where the tenancy is for years, to be determined at the expiration of a certain period ; for if, in such case, the tenant, with his eyes open, sows corn, which he knows 1 Kingsbury v. Collins, 4 Bingh. 202; the lease by giving six months' notice to Bain v. Clark, 10 Johns. R. 424. the other ; but if the lessor gave the no- 2 Gland's Case, 5 Co. 116, b. If a per- tice, he was to allow the lessee a compen- son in possession of land under a judg- sation for preparing the ground for seed, ment in a writ of entry, sow the land pend- &c., it was held that if the lessor gave the ing a writ of right against him, in which notice after the seed had been put into the judgment is recovered against him, and ground, the lessee was entitled to the em- seizm is obtained before a severance of the blements. Stewart v. Doughty 9 Johns, crop, the demandant in the writ of *ight E. 108. ' is entitled to it. King v. Fowler, 14 Pick. * Debow v. Titus, 5 Halst. R. 128 ■ R. 238. So also, if the land was sowed by Bulwer v. Bulwer, 2 B. & Ad. 470. ' the grantee of the party recovering in the » "Wicks r any property of their own ; but such erty of the tenant ; bjit the landlord's prop- persons, who had no interest to be Indus- erty in them to the extent of his rent trious, and who were under no compul- continued inviolable, and to this limited sion, when not under the eye of a master, extent he was still considered proprietor, were generally lazy and always careless. He therefore continued to levy his rents This made it eligible to have a free man by his own authority ; for no man needed to manage the farm, or to let it out upon the authority of a judge to lay hold of his shares, by which the tenant only had a own goods, and it made no difference claim, by virtue of the contract, for tliat whether rents were payable in money or part of the produce he was entitled to. in kind." The whole fruits, as pars soli, belonged to 412 LAW OP LANDLORD AND TENANT. [CHAP. XIII. § 558. The common law of England, and most of her statutory provisions regulating a distress for rent, have been generally adopted in the United States.^ In the New England States, the law of attachment on mesne process has superseded the law of dis- tress for rent ; but under their attachment laws the principles of the common-law doctrine of distress have been essentially assumed, subject to the same checks and limitations which, under the Eng- lish statute law and modern decisions, have modified and improved it.^ The State of New York has abolished this remedy, regarding it as an invidious distinction in favor of a particular class of creditors, which has survived similar remedies applicable to other debts, some- times operating unjustly towards other classes of creditors who are equally entitled to protection. The courts of North Carolina hold it to be inconsistent with the spirit of her laws and government, and declare that the common-law process of distress does not exist in that State.^ It is, however, in force in South Carolina ; and the statute of 1808 even allows landlords to distrain for double rent, where a tenant holds over for three months, after notice to quit.* In Georgia, it is limited to the cities of Savannah and Augusta. In Alabama, Tennessee, and Ohio, there are no statutory provisions on the subject, except one in the latter State, to secure the landlord's share of the crops from execution against the tenant.^ Mississippi has abolished it by statute, but property shall not be taken in exe- cution on the premises, unless a year's rent, if it be due, shall be first tendered to the landlord.^ And in Louisiana the landlord may follow the furniture removed from his premises fifteen days after removal ; and, if removed without his consent, he may seize the goods and sell them to satisfy his claim, provided they continue to be the property of the lessor.'^ § 559. Rent-service was the only kind of rent originally known to the common law, a right of distress being incident thereto, so long as it was due to the lord who was entitled to the fealty. It was called rent-service, because it was given as a compensation for the 1 Hartshorn v. Kiernan, 2 Halst. E. « Dalgleish v. Grandy, Cam. & Nor. R. 29 ; 4 ib. 110 ; Woglam v. Cowperthwaite, 22 ; Youngblood v. Lowry, 2 McCord R 2 Dal. R. 68 ; Garret v. Hughlet, 1 Har. 39 ; Deaver v. Rice, 3 Battle R 431 ' & Johns. 3 ; 7 ib. 370; 1 McCord, R. 299; * TaWande v. Cripps 3 McCord R Ridge 0. Wilson, 1 Blackf. (Ind.) R. 409; 147 ; Reeves v. McKenzie, 1 Bailey 497 Owens V. Connor, 1 Bibb, R. 607; Mayo ^ Griff. Law Res 404- AikpTi' Din- V. Winfree, 2 Leigh, 370; Burket v. 357. ' ' ^' Bonde, 3 Dana (Ken.), R. 209; Dudley, « Griff. Law Reg 697 R. 105 ; Walker (Miss.), R. 170. » Civil Code Of Louisiana, 2675 2 Potter V. HaU, 3 Pick. R. 360. SEC. I.J OP A DISTRESS FOR RENT. 413 military service to which the land was originally subjected. Where a rent was granted out of lands by deed, tlie grantee had no power to distrain for it, because there was no fealty annexed to such a grant ; for, by the statute of quia emptores, 18 Edw. I., when a ten- ant alienated his whole estate, the alienee held immediately of the lord, and not of the alienor ; by which means the reversion, as well as the services, being divested out of the alienor, he could not dis- train for a rent reserved upon his alienation, but it was in his hands a rent-seek. To remedy this inconvenience, an express power of distress was inserted in grants of this kind, where the landlord had no reversion or future interest in the land ; and it was thence called a rentrcharge, because the land was by the deed charged with the distress. A rent-seek was, in effect, nothing more than a rent, for the recovery of which no power of distress was given, either by the rules of the common law or the agreement of the par- ties.i In the first instance, the common law gave a power of dis- tress to the landlord, as an incident to the render of service ; but in no other case had he such power, except by force of an agree- ment. § 560. These distinctions, however, became of little consequence after the statute of 4 Geo. II. c. 28, which so far abolished the dis- tinction between different kinds of rent, as to give the remedy of distress in all cases of rent-seek, as well as of rent reserved gene- rally upon a lease ; and such was the effect of the Revised Statutes of New York, which was almost a transcript of the English statute. Previous to this statute, a distress could only be taken by him who had a reversionary interest in the premises ; and, if a man made a feoffment, or lease in fee, reserving rent but leaving no reversion in himself, he could not distrain for such rent, unless he had expressly reserved a power of distress.^ The statute, however, separated the right of distress from the reversion to which it had before been incident, and placed all rents upon the same footing as if the power of distress had been expressly reserved. In aU those States, there- fore, where this statute has been adopted, that which before the statute of quia emptores would have been a rent-seek becomes a rent- charge; and a grantor who has reserved rent may, in all cases, dis- train for it, though he has no reversion.^ But it is to be observed, 1 Co. Lit. 142, a; 143, b; Bradby on CorneU t). Lamb, 2 Cow. R. 652; Co. Lit. Dist. 24. 143, b. 2 Prescott 0. Deforest, 16 Johns. R. ^ Bradbury v. Wright, Doug. 624 ; 159 ; 2 Wils. R. 375 ; 1 Term R. 441 ; Schuyler v. Leggett, 2 Cow. R. 660. 35* 414 LAW OF LANDLORD AND TENANT. [CHAP. XIII- that the statute provides for no reseryation which would not, at least, amount to a rent-seek at common law, issuing out of lands and tenements. And as rent therefore cannot issue out of a mere chattel,! it has been repeatedly held since the statute, that if a les- see for years assigns his whole term, reserving rent, but without a special clause authorizing a distress, he cannot distrain upon such reservation, and his only remedy is upon the contract between him- self and the assignee.^ § 561. There can be no distress unless there be an actual demise, at a certain fixed rent, either in money, produce, or services, pay- able at a time certain ; or, unless the amount, if not fixed, is capa- ble of being reduced to a certainty by calculation.^ As where the rent is payable in repairs to be put upon the demised premises, to a certain specified amount ; * or to shear all the sheep depasturing in the landlord's manor, by way of rent, without putting it at a certain value in money in the lease, although the number of sheep may vary from time to time ; for this is capable of being reduced to a certainty by referring to the usual number of sheep, aad then calculating the price or value of shearing them.^ But this mode of computation is to be taken with the qualification, that it must not be subject to continual deductions, as for the erection of new buildings, or the like." § 562. In a case where the lease reserved an annual rent of three dollars an acre for all improved land on the demised premises, the tenant agreeing to build a certain quantity of stone fence, part at so much per rod, and the residue for such price as might there- after be agreed upon by the parties, the whole to be applied to the payment of the rent ; it was held, that these latter provisions did not make the rent so uncertain as to prevent the landlord from dis- training.^ And though the tenant hold under a void lease, it may 1 Co. Lit. 47, a ; 142, a ; 2 Ves. 170 ; ^ Co. Lit. 96, a. In South Carolina it 2 Wils. 76. is said no disti-ess will lie, unless the rent 3 Palmer v. Edwards, Doug. 187 ; is expressly reserved, and that the reser- Bume V. Richardson, 4 Taunt. 720 ; Par- ration of a specific sum, as rent eo nomine, menter v. Webher, 8 ib. 593 ; Preece v. is the true criterion of a party's right to Corrie, 5 Bing. 25. distrain for rent in arrear. Marshall u. 3 Valentine v. Jackson, 9 "Wend. R. Gibbs, 2 Tr. Con. R. 637. In Indiana 322; Dunk o. Hunter, 3 B. & A. 322; distress will not lie where a tenant con- Grier v. Cowan, Addis. 347 ; Wells v. tracts to deliver, as rent, one third of the Hornish, Penn. R. 31 ; Reeves v. McKen- corn he shall raise on the premises zie, 1 Bailey, R. 500 ; Jacks v. Smith, 1 Clarke v. Fraley, 3 Blackf. (Ind ) R 264 Bay, R. 315. « Reynard v. Porter, 7 Bingh. 451. * Smith V. Colson, Johns. R. 91 ; 2 ' Smith u. Tyler, 2 Hill (N. Y ) R Cow. R. 656. 648. SEC. I.J OF A DISTRESS FOR RENT. 415 still be resorted to as evidence to make the rent for the current year certain, and so confer a right of distress on the landlord.^ But if the premises are demised at a fixed rent, and the tenant enters, but is prevented from obtaining the whole of the premises by a person holding part under a prior lease executed by the land- lord, the latter has no right to distrain for a proportionable part of the rent reserved, by deducting the value of the part held under the prior lease, and demanding tlie residue ; though in such case he might be entitled to recover in an action of use and occupation upon a quantum meruit.^ § 563. In order to sustain the right of distress, the relation of landlord and tenant must be actually completed and not merely in contemplation ; there must be an actual demise and not a mere agreement for a lease.^ But when this relation is once established, the right of distress is incident thereto, without any special reserva- tion of a power to that effect, and it can only be taken away by that which amounts to a dissolution of the tenancy.* The landlord consequently does not possess this right in cases where the tenant is simply occupying the premises, as a mere tenant at will, and with- out any express agreement as to the amount of rent to be paid ; or has been let into possession under an agreement for a lease to be subsequently executed.^ But the tenancy that will authorize a dis- tress need not necessarily be in writing, nor in any particular forni, for a lease may be inferred from circumstances ; a parol lease will be sufficient,^ and very slight circumstances will constitute a ten- ancy for this purpose ; as the admission by a party holding under an agreement of a charge of half a year's rent, in an account between him and his landlord, or the payment of a previous quar- ter's rent.^ § 564. So a holding-over, after the expiration of a lease for a year, is a continuation of the former tenancy, and subjects the ten- 1 Edwards v. Clemons, 24 Wend. R. the distress unlawful. Nichols v. Dusen- 480. bury, 2 N. Y. R. 283. 2 Lawrence v. French, 5 Wend. R. 448. * Prescott v. Deforest, 16 I. R. 159 ; « Schuyler v. Leggett, 2 Cow. R. 660 ; Hill v. Stocking, 6 Hill, R. 277 ; Hegan v. Jacks i;. Smith, 1 Bay, R. 315; 5 B. & A. Johnson, 2 Taunt. R. 148; Knight o. 322. If the relation of landlord and tenant Bennett, 3 Bing. 361 ; 12 East, 134 ; has been terminated by a surrender, al- Schuyler v. Leggett, supra. though such surrender provides that the ^ Earrington v. Bailey, 21 Wend. R. tenant shall remain liable for rent, the 65. landlord cannot distrain : his remedy is ^ Cornell v. Lamb, 2 Cow. 652 ; Jacks on the special agreement. Bain v. Clark, v. Smith, 1 Bay, R. 315 ; Knight v. Ben- 10 J. R. 424. But a surrender after dis- nett, 3 Bing. 361. tress made for rent due will not render ' Cox v. Bent, 5 Bingh. 182 ; 2 M. & P. 281. 416 LAW OF LANDLORD AND TENANT. [CHAP. XIII. ant to a distress whether the first demise be by deed or parol.^ And the right subsists if the lease, under which the tenant holds, is void under the statute ; for though it may be void, as a lease for the term, it yet enures as a tenancy from year to year, and must regulate the terms on which the tenancy subsists in all other respects except its duration.^ Where, however, the lessor refused to give the lessee possession of the premises on the day fixed in the lease, and the lessee subsequently occupied the premises, not under the lease but under a new and different agreement by parol, the lessor was held not to be entitled to distrain on the first contract.^ A right of re-entry, in default of payment of rent, does not divest the right of distress ; ^ and on the demise of a grist-mill, the lessee to render one-third of the toll, it was held the lessor might dis- train ; ^ nor is it essential that it be reserved as rent, for if it appear to be for the use and occupation of lands or houses, it is sufficient, though not denominated rent.^ In Pennsylvania, it seems to have been doubted whether a right of distress existed where the rent was payable in grain or other produce ; but it was held, that a dis- tress in such a case for money was clearly illegal.^ And in Ken- tucky it has been decided that a landlord may distrain for rent payable in specific articles, though he cannot sell the goods dis- trained.^ § 565. At common law, the right of distress is not extinguished by an \insatisfied judgment for rent ; ^ for, as a general rule, the acceptance of an obligation of an inferior, or even of an equ.al degree, does not extinguish a prior obligation. Nor will the mere fact of taking a promissory note for rent prejudice a landlord's right to distrain, tinless there is an agreement that it shall operate as a suspension of the right ; for a note is but an acknowledgment of the debt, does not alter its nature until paid,i'> and will not even suspend the right of distress until it becomes due.^^ But if a note 1 Webber v. Shearman, 3 Hill (N. Y.), 490; Chipman v. Martin, 13 Johns. R. K. 547 ; s. c. 6 ib. 20 ; 1 R. & M. 365 ; 1 240 ; Bantleon v. Smith, 2 Binney R. 146 • M. & R. 137. 5 Hill (N. Y.), R. 651. 2 Schuyler D. Leggett, 2 Cow. R. 660. i" Peters v. Newkirk, 6 Cow. R. 103; 2 Spencer v. Burton, 5 Blackf. (Ind.) Snyder v. Knukleman, 3 Penn. R. 487 ; E. 57. Harris v. Shipway, Bui. N. P. 182 ; Van * Smith c. Meanor, 16 Serg. & R. 375. Steenburgh v. Hoifman, 15 Barb. R. 28. 6 Frye v. Jones, 2 Rawle, R. 11. n Davis v. Fyde, 4 Nev. & M. 462; 6 Price V. Limehouse, 4 McCord, R. Bailey v. Wright, 3 McCord, 484. Rent 546. due is not extinguished by taking a note 7 Warren v. Forney, 13 Serg. & Rawle, and a chattel mortgage collateral to the 52. note. Lofeky v. Maujer, 3 Sand£ Ch. R. 8 Owen V. Connor, 1 Bibb, R. 606. 69 ; see, ante, § 392, note. " Snyder v. Knukleman, 3 Penn. R. SEC. I.] OF A DISTRESS FOE RENT. 417 is taken in absolute payment of rent, the landlord's only remedy is upon the note.^ The acceptance of a bond for rent, or an order drawn upon a person not in funds, has been held not to extinguish this right, although a receipt in full, for the amount of rent due, was taken ; because rent, issuing out of the realty, is of a higher nature than any simple contract.^ Nor is the right to distrain at the end of the year affected by an agreement in the lease, that the landlord may re-enter if the rent is unpaid at a stipulated period after the expiration of the year ; ^ or that he shall be allowed to charge interest on the rent in arrear.* But a landlord cannot dis- train if he has treated the tenant as a trespasser, although the ten- ant remains in possession to the day of the distress ; ^ nor, as it would seem, after he has given the tenant notice to quit, without some evidence of a renewal of the tenancy.^ A sxirrender of, a part of the premises, however, will not exempt the tenant from a liabil- ity to distress, as to the residue.^ But where, upon the surrender of a lease, it was agreed that the tenant should remain liable for a year's rent, and that the lessor might take all lawful means for its recovery, according to the lease ; it was held that the lessor could not distrain for such rent, but that his remedy was on the special agreement alone, since by the surrender the relation of landlord and tenant ceased.^ A landlord who agrees not to distrain the goods of an under-tenant, so long as he pays his rent to the original lessee, is not thereby prevented from distraining unless he has notice of a tender of the rent by the under-tenant to his lessor.^ § 566. A previous demand of rent is, in general, unnecessary to confer a right of distress ; but if a lease contains a reservation of rent, payable quarterly or half yearly, if required, and the landlord receives rent for some time quarterly, he cannot afterwards distrain without notice to pay.^" A legal tender of the amount due destroys 1 Warren v. Tomey, 13 Serg. & E. 52. building, which was to he completed by 2 lb. ; Cornell v. Lamb, 20 Johns. E. the landlord, the tenant took possession 407 ; Price v. Limehouse, 4 McCord, R. and occupied the premises for two quar- 544 ; Printems v. Heltried, 1 Nott & Mc- ters, and then abandoned them, for the Cord, R. 187 ; Bailey v. "Wright, 3 Mc- reason that the landlord had not completed Cord, R. 484. theni according to his agreement ; the 2 Smith V. Meaner, 16 S. & Eawle, landlord was allowed to distrain for the 375. second quarter's rent. Mchols u. Dusen- * Sherry v. Preston, 2 Chit. E. 245. bury, 2 N. Y. E. 283. "" Bridges v. Smyth, 2 Moore & P. 740 ; » Bain v. Clark, 10 Johns. E. 424. Jackson v. Sheldon, 5 Cow. E. 448; 8 » Welsh v. Eose, 6 Bingh. 638; 4 Watts, E. 55 ; 2 N. Hamp. E. 160. Moore & Pay. 484. Jenner v. Clegg, 1 Mood. & Eob. 213. w Offut u. Trail, 4 Har. & J. 20; Mo- 7 Peters V. Newkirk, 6 Cow. R. 103. laus v. Arden, 10 Bingh. 299 ; 8 M. & In the case of the lease of an unfinished Scott, 793; Roger v. Ake, 3 Penn. 461. 418 LAW OF LANDLORD AND TENANT. [CHAP. XIII. the right of distress, though the tender is not made until after the rent-day, or even after tlie proceedings in distress have been com- menced, provided the expenses of such proceeding are also ten- dered.^ The tenant may, in fact, claim a return of the goods at any time before they are actually sold, upon making such tender, and if the landlord refuses to deliver them it is a wrongful de- tainer .^ But the tender must be made to the landlord and not to his_ bailiff, unless the latter is particularly authorized to accept or refuse it.^ When made to the distrainor's wife, however, who had been in the habit of acting as his agent in such matters, it was held sufficient.* But it comes too late after cattle are actually impounded, for they are then in custody of the law.^ If the land- lord proceeds with the distress after a tender, without a subsequent demand and refusal of the rent, the tenant's remedy is by action of trespass or replevin, or he may rescue the distress.^ § 567. A distress for rent can only be made in the name of the person to whom the rent is due, and not in the name of his bailiff.'^ Nor will an authority in writing to a tenant, to pay the rent to a third person, authorize a distress by such person.^ At common law, after a lessor parts with his reversion, he can neither distrain upon the assignee or the original lessee.^ Yet a tenant from year to year, who underlet to another from year to year, is considered as not having parted with his whole interest, but retains such a reversion as enables him to distrain.^" So if a tenant for life makes a lease for any number of years, no matter how impossible it may be that his life should last so long, he is still deemed to have a reversion in the premises.^^ § 568. When a lessor assigns his reversion, the assignee may distrain ; for the privity of contract which subsisted between the lessor and lessee is in such case transferred from the lessor to his assignee, by the statute of 32 Hen. VIII. c. 34, as well as by those American statutes which have adopted the English statute ; and 1 Hunter v. Laconte, 6 Cow. R. 728 ; ^ Ladd v. Thomas, 12 Ad. & El. 117. Williams v. Howard, 3 Munf. 277 ; 4 B. « Co. Lit. 160, b ; 8 Co. 147, a. & Ad. 413 ; 1 N. & M. 374. 7 Swearingeu v. Magruder,' 4 Har. & 2 Six Carpenter's Case, 8 Rep. 146, b; McHen. 347. Hinton v. Blain, 2 Bailey, R. 168 ; Virtue « Ward v. Shew, 9 Bingh. 608 : 2 M. V. Beasly, 2 Mood. & M. 21. & Scott, 756. 8 Pilkington's Case, 5 Rep. 76 ; 5 ^ Preeee v. Corrie, 5 Bingh. 24 ; Taunt. 307. v. Cooper, 2 Wils. 376; 2 Moore, 656. 4 Brown v. PoweU, 4 Bingh. 230 ; 12 i» Curtis v. Wheeler, Mood. & M. 498. Moore, 454. u Smith v. Day, 2 M. & W. 684 : 4 Ad. & El. 299. SEC. I.J OF A DISTRESS FOR RENT. 419 the assignee thereupon becomes entitled to all the remedies for rent that the lessor originally had, even without an attornment. Thus the Revised Statutes of New York declare, that " the 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 remained in such lessor or grantor." ^ But in order to confer upon such assignee a right to distrain, the lease or land should be included in the assignment ; for a mere transfer of the rent remaining unpaid, which is only the transfer of a chose in action, does not carry with it the remedy by distress.^ § 569. Any one of several joint tenants, being seized per mi et per tout, may distrain alone for the whole rent, although he must afterwards avow jointly with his companions, or make cognizance as their bailiff, and account to them for their respective shares. He may, therefore, appoint a bailiff to distrain for the whole rent, without the assent of his fellows.^ But coparceners before parti- tion are considered but as one heir, and must, therefore, all join ; * after partition, however, they may make several distresses.^ Ten- ants in common, not holding by one title and possessing several estates, although they may join in an action for rent,^ must distrain severally for their respective portions and avow separately.'^ But upon a lease by tenants in common, the survivor of them may dis- train for the whole rent, although the reversion be to the lessors according to their respective interests.^ § 570. A husband and wife may join, or the husband may dis- train alone, for rents accruing from his wife's lands during the covertiire.^ As guardians may grant leases, so they may distrain in their own names. ^^ The executor of a lessor may distrain for 1 1 R. S. 747, § 28. ' Whitley v. Roberts, 1 McClel. & Y. 2 Slocum V. Clark, 2 Hill (N. Y.), R. 107; Harrisonw. Barnsby, 5 Term R. 246 ; 475. Cro. Jac. 611. 3 PuUen V. Palmer, 3 Salk. 207 ; Rob- * Wallace i/. McLaren, 1 Man. & Ry. inson v. Hoffman, 4 Bingh. R. 562 ; 2 B. 516. & ]} 465 ^ Bowles v. Poor, Cro. Jac. 282; 2 *' Steadraan v. Page, 1 Salk. R. 390. Bulst. 233. 6 Co. Lit. 163, b. '° Bennet v. Robins, 5 C. & P. 879 ; Midgley v. Lovelace, Carth. 289. Cro. Jac. 55-98. 420 • LAW OP LANDLORD AND TENANT. [CHAP. XIII. arrears of rent due at the time of the testator's death ; ^ but not for rent which has accrued subsequently to the death of the testa- tor ; for such rent, following the reversion, goes to the heir or devisee.^ A receiver in chancery may distrain without any special order of the court.^ But if there is a doubt in whom the legal right exists, he should get an order, as he must distrain in the name of the person having the legal right.* If, however, he has leased the premises in his own name, the tenant cannot deny his right to distrain, although he appears by the lease to be only a receiver, and the rent is reserved to him in that character.^ § 571. At common law, a mortgagee, after giving notice of the mortgage to the tenant in possession, under a lease made prior to the mortgage, is entitled to such rent as shall be in arrear at the time of the notice, and to the rent accruing afterwards, and may distrain for it after such notice.*' But in New York we have seen the mortgagee cannot have possession of the mortgaged premises, and is consequently not entitled to the rents of the estate ; he can- not, therefore, under any circumstances be entitled to distrain, unless in the case of a tenant who attorns to the mortgagee after the forfeiture, which is allowed in New York, and in New Jersey.'' Neither is the common-law doctrine on this subject recognized in Pennsylvania.^ But as to a lease made by a mortgagor after the mortgage, the mortgagee cannot distrain until after he has received rent from the tenant ; ^ or given the tenant notice to pay rent to him, and received his consent ;!'' for this is equivalent to the crea- tion of a tenancy from year to year, between the mortgagee and tenant, on the terms of the original lease. And although the mortgagee cannot compel the payment of rent from the tenant under these circumstances, yet, in such case, the tenant will be justified in attorning and paying rent to the mqrtgagee.^^ § 572. At common law the lessor could only distrain during the continuance of the term ; for, according to feudal principles, there must be a privity of estate between the tenant and the person dis- 1 1 Saund. K. 287, n. 11 ; 1 K. S. 747, ^ McKircher v. Hawley, 16 Johns. R. § 21. 289 ; 1 R. S. 744 ; S Halst. R. 192. 2 Wright V. Williams, 5 Cow. R. 501. * Myers v. White, 1 Raw. 325-355. 8 Pitt V. Snowden, 3 Atk. R. 750. ^ Rogers v. Humphreys, 4 Ad. & El. 4 Hughes V. Hughes, 3 B. C. & C. 87. 299. 5 Dancer y. Hastings, 12 Moore, 34; 4 ^' Doe v. Boulton, 6 Ad. & El. 675; Bing. 2. McGill v. Hinsdale, 6 Conn. R. 469. » Moss V. Tallimore, Doug. R. 278 ; " Jones v. Clark, 20 Johns. R. 60 ; Saunders v. Van Sickle, 3 Halst. R. 313. Pope v. Biggs, 9 B. & C. 421 ■ Smith v Shepherd, 15 Pick. 149. SEC. I.J OP A DISTRESS FOR RENT. • 421 training. Tlie remedy was consequently gone upon tlie determina- tion of the term, as the privity of estate was thereby destroyed, and for the last instalment of rent, accruing on the last day of the term, there was no right of distress, or any remedy but by action.^ But the statute of 8 Anne, c. 14, which has been generally adopted in the United States, provided that the distress might be made at any time within six months after the determination of the lease, if the landlord's title or interest still continued, and the tenant re- mained in possession.^ As by this statute the landlord's interest must continue at the time of making the distress, if a tenant under- lets, he cannot distrain upon the under-tenant after his own term has expired.^ The tenant must also appear to be in possession, to authorize such proceeding; and, therefore, where the leased premi- ses are certain specific apartments in a dwelling-house, and the ten- ant removes to other apartments in the same house, taking with him his goods, the landlord cannot, for the purpose of making a distress for the rent of the first apartments, follow the goods after six months subsequent to the termination of the lease of those apart^ ments.* Nor does the statute intend to permit a landlord to dis- train upon the goods of a succeeding tenant found on the premises, who has taken possession under a new and different demise, occu- pyhig under a different right, although derived from the landlord himself. Therefore where, on the expiration of a parol lease to two persons for a year, the landlord executed a new lease for years to one of them, who continued to occupy the premises alone ; it was held that his goods could not he distrained upon for the rent of the preceding tenancy, though they were on the premises when the rent fell due and had remained there ever since.^ The goods of a third person, however, remaining on the premises during the time a tenant holds over, may be distrained for the rent of the original term, though more than six months have elapsed since that term expired.^ § 573. With respect to the time of making a distress, it is to be observed that a distress can only be taken for rent in arrear ; and as rent does not become due until the last moment of the day when it is made payable, a distress cannot be taken until the next day 1 Buzzard v. Cappel, 8 B. & C. 141. ' Buckup v. Valentine, 19 Wend. E. 2 Terboss v. Williams, 5 Cow. R. 407 ; 554 ; 7 Ad. & El. 110. s. c. 2 Wend. 141 ; Christman v. Floyd, ^ Bell v. Potter, 6 Hill (N. Y.), R. 497. 9 Wend. B. 340. ^ Webber v. Shearman, 3 Hill (N. Y.), 3 Burnea. Richardson, 4 Taunt. 720. R. 547 ; s. o. 6 Hill, 20. 36 422 LAW OP LANDLOED AND TENANT. [CHAP. XIII. after the rent becomes due.^ But a warrant given on that day, to make distress generally, is good ; ^ and if by the custom of the country, or by express stipulation between the parties, the rent be payable on the day on which the tenant enters, it may be dis- trained for on that day.^ It cannot be made in the night, but must be taken in the daytime, after sunrise and before sunset.* Nor can it legally be made after a tender of payment ; and a tender after distress, but before impounding the goods, will render the detainer illegal ; ^ though this would not be the effect of a tender after the distress is actually impounded.^ Where a lease stipulates that the rent shall be paid in advance, the landlord may distrain for it immediately upon the tenant taking possession of the premi- ses ; ' or if, by the custom of the country, a distress may be taken for half a year's rent in advance, the custom is valid and forms part of the contract.^ § 574. At common law, a distress can only be made upon some part of the demised premises out of which the rent issues.^ Upon any part of these it may be taken for the whole rent, even though the different parts be in different counties, because the whole rent issues out of every part of the land.^" And if a rent-charge issue out of land in the possession of many tenants, a distress may be taken upon the premises of one for the whole rent, for it issues out of each part. But where there are separate and distinct demises, there must be separate distresses on the several premises subject to each distinct rent, although the several premises are demised to the same tenant.^^ As rent cannot issue out of a mere easement, or incorporeal hereditament, upon the demise of a room, with a right of common passage along an entry leading from such room into the public street, it was held that the landlord could not seize goods of the tenant kept in such common passage.^ For the same reason, a barge attached to a wharf by a rope was held in England 1 Gano V. Hart, Hardin (Ky.) B„J97; ters v. Newkirk, 6 ib. 103: Harrison v Duppa V. Mayo, 1 Saund. R. 287 ; 1 Inst. Barry, 7 Price, 690 : WiUiams v. Howard 47, b, n. 6 ; 6 Whart. E. 41. 3 Munf. 277. ' 2 Glaus V. Hart, Hardin, 297. " Buckley v. Taylor, 2 Term R 60 3 Russell V. Doty, 4 Cow. 576 ; Wil- *» Burr v. Van Buskirk, 8 Cow R 269 • Uams V. Howard, 3 Munf. 277 j 2 Whajt. Pemberton v. Van Rensselaer 1 Wend' E 95; 2 Term R. 600 R 309; Brown «. Duncan, 1 Harper, r! ^ Co. Lit. 142, a ; Atteubergh v. Peo- 338. pie, 6 C. & P. 212. 10 1 Rol. Abr. 671, 1. 10. « 6 Cow. 728. 11 Rogers v. Birkmire, Str. 1040. • 5 Term R. 432. 12 Wiuslow .,. Henry, 5 Hill (N. Y ) ' DiUer V. Roberts, 13 Serg. & Rawle, R. 481. ^ '' 60; KusseU v. Doty, 4 Cow. R. 516; Pe- SEC. I.J OP A DISTRESS FOR RENT. 423 not distrainable for z-ent of the wharf^ though the land on which the wharf stood was demised, and the use of tlae land m the river Thames opposite to it, between high and low-water mark, was also demised as appurtenant to the wharf, but not the land itself over which the barge floated when it was distrained.^ The owner of a wharf, however, may distrain for wharfage on any goods or chat- tels on board a ship or vessel which has been moored at his wharf, although the vessel has been removed from the wharf ; and it is no objection to the distress that it is made at a place different from where the wharfage accrued, provided such place be within the jurisdiction authorizing the proceeding by distress.^ § 575. If, when the landlord comes to distrain cattle which he sees within his fee, the tenant or any other person, to prevent the distress, should drive the cattle away into some other place, the landlord may follow and take them ; for in judgment of law, the distress will be considered as taken within his fee. But he can- not distrain them if they go oiF the premises of their own accord ; nor can he pursue them if they have gone away before he discov- ered them.^ So a constable of the town where the demised prem- ises are situated, to whom a warrant is delivered to be executed, may pursue into another town, and take goods which have been fraudulently removed to avoid the distress.* At common law, if a stranger sent his horse or cattle upon the demised premises to pas- ture,^ or the cattle of a stranger broke through the fences and entered the tenant's land, they became immediately distrainable.^ It is so, also, if the owner of cattle is bound to repair the fences, and, by his negligence in not repairing, his beasts escape into a neighbor's land.^ But when there are no sufficient fences to divide the tenant's from the stranger's lands, and it is the tenant's duty to keep the fences in order, the landlord cannot distrain siich cattle, until after the owner has had notice to remove them ; and then if he neglects they become liable.^ § 576. The American statutes, following that of 11 Geo. 11. c. 19 in general furnish another exception to the rule, that the dis- tress can only be taken on the demised premises, by allowing the 1 Buzzard v. Cappel, 8 Barn. & Cress. * Christman v. Floyd, 9 Wend. R. 340. 141 ; 6 Bingh. R. 150 ; s. c. 3 M. & R. 480 ; "■ Francis v. Wyatt, 3 Burr. 1498. 2 M & E. 197, overruling s. c. 4 Bingh. ^ Co. Lit. 74, b ; 2 Saund. E. 124. 137 ■' 2 C. & P. 541. ' GiU v. Gavin, 2 Roil. R. 124. 2'Niclioll V. Gardner, 13 Wend. 288. » Lutw. 1580; Dyer, 317, b. 8 1 Inst. 161, a. 424 LAW OP LANDLOED AND TENANT. [CHAP. XIII. landlord to pursue and sei2^ them, where they have been fraudu- lently removed for the ptirpose of avoiding the distress. The Eng- lish statute only applies where the removal has occured secretly and fraudulently ; ^ and the landlord is bound to show, also, that no sufficient distress remained on the premises after such removal.^ In Pennsylvania, the goods must have been removed after the rent became due, to authorize the landlord to follow them;^ and such removal must be fraudulent.* In Louisiana, if the tenant removes l>is goods from the premises, and abandons them, he becomes liable at once for the rent of the whole term, due and to become due ; but the execution only issues for the rent actually payable as it becomes due.^ In Kentucky, where the tenant is about to remove his effects, an attachment for rent lies before it is due if the rent be payable in money .^ There are similar statutes in Virginia and Kentucky, authorizing a distress after the tenant has removed his effects from the premises.'^ § 577. This statute applies only to the goods of the original les- see and his assignee, which have been removed from the demised premises ; and not to those of a stranger found on the premises,^ or to goods taken by a creditor therefrom with the assent of the ten- ant, in payment of a hond fide debt, though the creditor knows the rent is due, and apprehends the landlord may distrain.^ Nor does it apply to the goods of an under-tenant, which have been removed before the rent became due ; ^^ a plea that justifies the following of goods off the premises must, therefore, aver that they were the ten- ant's goods.^ A mortgagee is deemed a tenant sub modo, and pro- tected within the saving clause of the statute in favor of subsequent purchasers in good faith ; and, therefore, personal property taken by a hond fide mortgagee from the premises, by virtue of the mort- gage, is not subject to pursuit after removal.^ But this right is a strict legal right, and not favored in equity. Eent is a lien upon the tenant's goods so long as they remain upon the demised prem- 1 Opperman v. Smith, 4 D. & R. 33. » Frisbey v. Thayer, 25 Wend. E. 306 • 2 Parry v. Duncan, 1 Mood. & M. Martin v. Black, 9 Paige, R. 641. ' 533. 9 Slocum v. Clark, 2 Hill (N. Y.), R. 8 Grace v. Shirely, 12 S. & E. 217. 475 ; Coles v. Marquand, ib. 447 ; Adams * Purfel V. Sands, 1 Ashmead, R. 120. v. Lacombe, 1 Dall. R. 440 ; Davis o. 6 Reynolds v. Swain, 13 Louis. R. 193 ; Payne, 4 Randolph, R. 332. 2 Martin, R. 451. lo Acker v. Witherill, 4 Hill (N. Y.) R e Poor V. Peebles, 1 B. Monroe, 1; 3 112. Kent, 482, n. n Thornton v. Adams, 5 M. & S. 38 • ' Lougee v. Cotton, 2 B. Monroe, E. 6 C. & P. 226. 116- '^ Prisbey v. Thayer, supra. But see Reynolds v. Shuler, 5 Cow. R. 323. SBC. I.] OF A DISTRESS FOE BENT. 425 ises, and, at common law, the right was gone the moment they were removed, for the landlord had parted with his lien ; possession, or what is equivalent to possession, being necessary to the existence of a lien.^ But this statute, which gives him a right to follow them after their removal, does not continue such lien after the removal ; it simply provides an additional remedy, without cre- ating a new lien upon the goods. And as equity never interferes in behalf of a creditor who has not acquired a lien upon his debtor's propei;ty, or to restrain the latter from making any dis- position of his property he may think proper, it will not compel a defendant to disclose where the goods which have been removed have been daposited, in order that they may be seized by a distress warrant, or delivered up to be sold under a decree, to satisfy the rent.^ § 578. When a landlord makes a distress, he may seize upon any article in the npme of all the goods in the house ; ^ and a declara- tion by him, that nothing should be removed until his rent was paid, has been held sufficient to authorize him to follow an article which had been removed.* So where a broker went into the ten- ant's house, and pressed for payment of rent alleged to be due, and a sum for the expenses of the levy, but touched nothing, and made no inventory, and the tenant then paid the rent and expenses under protest ; it was held, in an action against the landlord for an exces- sive distress, that he could not say there had been no distress.^ He may enter into any house or building, either through the doors or windows ; ^ but if these be fastened, he cannot lawfully break them open, for enclosures or fences cannot be broken to take a distress. '^ And where a padlock had been put upon a barn door, the landlord was held to be a trespasser by breaking it, in order to seize the corn in the barn.^ But if the outer door be open, the inner may be broken ; ^ and this, though such inner room is in the exclusive pos- session of the plaintiff, under an occupation separate from the rest 1 Trappan v. Morie, 18 Johns. E. 2 ; ^ Hutchins v. Scott, 2 M. & "W. 809 ; 3 Burr. 1889 ; Sweet v. Pym, 1 East, 4 ; s. c. Mur. & Hurl. 194. 7 ib. 5. « 1 Eol. Abr. 671, 1. 7, 17. 2 Eeed v. Darrow, 2 Ed. Ch. E. 412; ' Co. Lit. 161, a, ; Semayn's Case, 5 "Wiggins V. Armstrong, 2 Johns. Ch. E. Co. E. 91. 4447 8 9 vin. Abr. 128, pi. 6. 8 Dodd V. Monger, 6 Mod. 215; s. c. ' Williams v. Spencer, 4 Johns. E. 352 ; Holt 416. Comb. 17 ; Brown v. Dunn, Bull. N. P. * Wood V. Nunn, 5 Bingh. 10 ; 2 M. & 81 ; State v. Thackaw, 1 Bay, S58 ; 3 B. p. 27. & P- 223 ; State v. Armfleld, 2 Hawks. 246. 36* 426 LAW OP LANDLORD AND TENANT. [CHAP. XIII. of the house ; or if, after having once entered lawfully, the officer is forcibly turned out of possession, he may break the door and re-enter.^ To make an officer a trespasser, it is enough that the outer door be shut ; lifting a latch is as much a breaking, in law, as the forcing a door bolted with iron ; whatever would be a breaking of an outer door in burglary is an unlawful breaking by a sheriff; even the sliding-down of a window, fastened by pulleys, would be such a breaking.^ And if an officer breaks open an en- closure, and takes goods when he is not justified in doing so, he not only renders himself liable to an action of trespass, but the court or a judge will restore the goods to the person from whom they were so taken. ^ » § 579. At common law, a distress might be levied by the laud- lord or any private person authorized by him for that purpose, although he could not sell the property so distrained ; but the Eng- lish, as well as the American statutes regulating distresses, now require as a check to abuse in the exercise of this right, that the proceeding shall be conducted by a legal officer.* In Georgia, a distress warrant can only be granted by a justice of the peace.^ Still further to protect the rights of the tenant, the statutes of the different States require a preliminary affidavit to be made by a landlord previous to taking a distress for rent, in regard to which great particularity is necessary to be observed, for as the affidavit of rent due is the foundation of the whole proceeding, any material error in it will vitiate aU future transactions, and render the land- lord a trespasser. § 580. In addition to this affidavit, the landlord must also give to the officer he employs, an authority, in writing, called in the stat- ute the " warrant of distress." As to which no particular form is necessary : if it substantially indicate the object intended, so as to enable the officer to execute it, it is sufficient ; nor need it be under seal. Neither is it necessary that an agent who directs the distress should have written authority from the landlord, for the statute only requires that the officer making the distress should act under a warrant in writing, and, therefore, an agent of the land- 1 Eagleton v. Gutteridge, 11 M. & W. « Ferguson v. Moore, 2 Wash R 58 • ^^^- „ 'Wells V. Homer, 3 Penn. E. 33 ; 1 Munf' 2 Curtis V. Hubbard, 1 HiU (N. Y.), E. E. 696. ^.-00,1 muni. 337- • 6 Prince's Dig. 1837, p. 687. 3 1 Chit. Arch. Pr. 7th edit. 410 ; 2 Bac. 1 , 1-. "o < . Abr. Execution (N). SBC. I.J OF A DISTRESS FOR RENT. 427 lord may sign the warrant as agent for his principal, and make the affidavit also.-' At common law, if an agent or bailiff proceeds to distrain goods without an express authority from his principal, and the principal afterwards assent to it, it is a good distress, and sliall have relation back to the time when the distress was taken.^ But a distress warrant signed by " A, agent for B," is a good execution of the authority conferred on the agent.^ § 581. All the arrears of rent, arising during the tenancy, may be included in one proceeding, though the rent of several years should happen to be in arrear, since the statute of limitations does not apply to these cases.* And, therefore, if a tenant enters upon the premises under a lease for two years, and continues in possession nine years, paying no rent, the landlord may, by one distress, re- munerate himself for tlie rent accrued during the whole nine years ; and so for any other period. And if the property be taken from his possession by a writ of replevin, he may in one avowry acknowl- edge the taking for the whole nine years, as upon one entire lease.^ A distress, however, can only be taken for rent, and not for dam- ages for the delay of payment, and therefore, interest cannot be included in the amount distrained for ; and if interest is collected by a distress, the party distrained upon may recover back the excess by an action on the case.^ § 582. When the officer has been thus legally authorized to dis- train, he enters upon the premises, and makes a seizure of such things as are liable for rent ; and proceeds to take an inventory of so many goods as he shall judge to be sufficient to cover the rent distrained for, together with the charges of the distress. And it is generally proper for him to have a person with him when he makes the distress, and also when he serves the inventory and notice, to examine the same, and attest, if there be occasion, to the regularity of the proceedings. The safest way perhaps is, to remove the goods immediately to some convenient place, and, in the notice required by the statute, to inform the tenant where they have been carried ; 1 Bigelow V. Judson, 19 Wend. E. 229. 465 ; "Wright v. WUUams, 5 Cow. E. 501 ; No written authority is required in Penn- Blake v. Delisseline, 4 McCord, 496. sylvania. Francisous v. Eeigart, 4 Watts, ^ Sherwood v. Philips, 13 Wend. 479 ; 98; 3 W. & S. 531. Vechte v. BrowneU, 8 Paige, E. 212. 2 Gilbert on Distresses, 32; 3 Oar. & * Lansing v. Eattoone, 6 Johns. E. 43 ; P. 172 ;. 5 Bing. 10. 2 Binney's E. 153 ; Dennison v. Lee, 6 8 Bigelow V. Judson, 19 Wend. E. 229 ; GiU & Johns. 383 ; Veghte v. BrowneU, 11 Mass. E. 27; 17 Wend. E. 40. supra; Sherry v. Preston, 2 Chit. E. 245. * Braithwaite v. Cooksey, 1 H. Bl. E. 428 LAW OP LANDLORD AND TENANT. [CHAP. ZIII. but it is usual to let them remain on the premises until they are sold, leaving a person in charge, or taking security for their forth- coming. § 583. As to the goods that may be taken upon a distress for rent, they are in general all the movable goods and chattels which may be found upon the premises, whether they be the goods of the ten- ant, under-tenant, or other person.^ The necessity of this rule is obvious, when we consider by what varieties of fraud and collusion the rights of a landlord are liable to be defeated, if he is to be re- stricted to such goods only as he can prove to be the property of the tenant. Nor is there in reality any hardship in it, as a stran- ger, who may happen to have his goods upon the premises, can, at any time before the landlord actually levies his distress, remove them, and the landlord has no right to follow them. In Virginia, Kentucky, Illinois, and New Jersey, the property of strangers found upon the premises is exempt from distress, by the statutes of those States.^ And in Pennsylvania it has been held, that the effects of a lodger and boarder are exempt from distress for rent due from the keeper of the boarding-house ; ^ and that wherever a landlord knows, or consents to the introduction of a stranger's goods upon the premises, as a consequence of the business acts of the tenant, such goods shall not be distrained.* So in New York it was held, that if a stranger's goods are on the demised premises without his fault, and he endeavors to regain them with due diligence, and without any voluntary delay, they are not distrainable.^ § 584. The tendency of our decisions is, upon the whole, against the right of distraining goods not the property of the tenant ;6 but, it has been observed, that to abrogate it altogether, might lead to results not sufficiently adverted to. Independent of the fraud which might be perpetrated, and the delay that would occur, were the tenant permitted to set up, as a defence to a distress for rent, property in a third person ; the abolition of the right to distrain all goods on the premises not exempt at common-law would prevent 1 Holt V. Johnson, 14 Johns. 425 ; = 4 Rand. R. 334 ; Snyder v. Hill 2 Spencer v. McGowan, 13 Wend. R. 256 ; Dana (Ky.), R. 204-212 : Elmer's (N J ) Thornton v. Adams, 5 M. & S. 38; Kesler Dig. 135; Rey. Laws of Illinois 1833 V. McConachy, 1 Rawle, R. 435; O'Don- « Riddle v. Welden, 5 "Wharton R 1 nell V. Seybert, 13 S. & R. 57 ; Weidell v. * Brown v. Sims, 17 Serg. & Rawle Bosberry, ib. 180 ; Howard v. Ramsay, 7 138. ' Bar. & Johns. 120 ; Davis v. Payne, 4 ^ Gilbert v. Moody, 17 Wend. R. 354 Rand. R. 334; Reeves v. McKeuzie, 1 « Connah f. Hall, 23 Wend. R. 475. Bailey, 497. SEC. I.] OF A DISTRESS FOR RENT. 429 the landlord from distraining the goods of an under-tenant, who, not being liable to him for rent in any form of action, by reason of a want of privity of estate or of contract, is a mere stranger to the landlord. And if the right of distraining the property of a stran- ger is refined away by judicial decisions, any lessee, by redemising the whole property which has passed to him under a lease, and reserving to himself but a single day of the original term as his reversion, may altogether defeat the right of distress. In fact, the principle laid down in the Pennsylvania case above referred to, that where the landlord knows or consents to the introduction of a stranger's goods on the premises as a consequence of the business acts of the tenant, such goods shall not be distrained-, may well embrace the goods of an under-tenant, placed on the premises by the contract of the first lessee, with the consent, express or implied, of the landlord. § 585. The statute laws of most of the States contain a variety of exemptions from distress, generally embracing tlie necessary tools of a mechanic, or for limited agricultural purposes.^ Thus the statute of Alabama, of 1832, exempts two cows and calves, five hundred pounds of meat, one hundred bushels of corn, all books, a pair of working oxen, all tools or implements of trade, twenty head of hogs, &c. The laws of Michigan exempt all private libraries not exceeding a hundred dollars in value. The statute of Georgia, of 1841, in favor of heads of families, exempts twenty acres of land, and an additional five acres for each child under fifteen years of age, provided the land derives its chief value from its adaptation to agricultural purposes. If the party owns more than twenty acres, he is to procure twenty acres to be laid off, so as to include the dwelling-house and improvements on the tract, not exceeding twelve hundred dollars in value ; and this cannot be molested. He is also entitled to one horse, ten head of hogs, &c. So by the Act of 1849, property in Pennsylvania, to the value of three hundred dollars, exclusive of all wearing apparel of the tenant and his family, and all Bibles and schoolbooks in use in the family, is exempted from distress as well as from levy and sale on execution. But the limits of our work do not permit us to go into all these statutory exemptions ; and the details will appear more satisfac- torily, from a particular examination of the statutes themselves. 1 Acts of Maine, 1833, c. 307 ; 1 Humph. 391 ; 5 Mass. R. 313 ; 4 Conn. E. 450 ; 2 Whart. E. 26. 430 LAW OP LANDLORD AND TENANT. [CHAP. XIII. § 586. There are, however, many exceptions at common law independent of the statutes, arising either from tlie circumstance that a distress was formerly considered as a mere pledge to the landlord Xor the payment of his rent ; or from the care which the law takes, that while the interest of an individual is served, the common good of the public shall not be prejudiced. Thus things which cannot, with certainty, be identified, or which cannot be returned to the owner in as good a condition as at the time they were taken, are exempt. For it would be inconsistent with the notion of a mere pledge, that it could not be returned in specie ; and it would be unjust to take such things as might be injured and lost to the lessee by the detention. For this reason, loose money, meal, or the like, not confined in a bag or sack, and, consequently, bearing no mark by which it may be known, cannot be distrained ; but, when enclosed in a bag, which may itself be mai'ked and known, and so identified, the objection ceases. The exception also extends to things of a perishable nature, such as fruit and milk.^ § 587. Things delivered to a person exercising a public trade, to be carried, wrought, worked up, or managed, in the way of his trade or employ, have always been privileged for the sake of trade and commerce, which could not be carried on if such things, imder these circumstances, could be distrained for rent due from the per- son in whose custody they are.^ Therefore, things sent to places of trade, as a horse sent to a farrier's shop, shall not be distrained for the rent of the shop ; nor yarn sent to a weaver's ; nor cloth to a tailor's,^ whether it be made up into garments or not ; nor sacks of corn sent to a mill to be ground, or to a market to be sold.* For the same reason, the goods of a principal, in the hands of a factor or consignee for sale, cannot be distrained for rent due from the factor; 5 nor can goods consigned to a broker for sale, and placed by him for safe keeping in a warehouse over the wharf at which they were landed, be distrained for rent due in respect of 1 Cooper V. PoUard, 1 Eol. Abr. 667, 1. * Co. Lit. 47, a. In Louisiana, the 16; Given w. Bland, 3 Blaokf. R. 64; landlord has a priyilege by way of pledge, Morley v. Pencombe, 2 Bxoh. 101. on the tools of a tradesman found on the 2 1 Inst. 47, a ; 2 Mod. 61 ; Simpson v. premises. Parker v. Starkweather, 19 Haitopp, Willes, 512. The lessor of a Martin, E. 337. cotton press has no lien or pledge, for the '' Gilman v. Elton, 3 B. & B. 75 ; payment of his rent, on cotton sent there Brown v. Sims, 17 S. & E. 138 ; Him- by third persons to be pressed. Eea v. ley v. Wyatt, 1 Bay, E. 102 ; 2 C. & P Burt, 4 Louisiana, E. 688. 863. 3 Barker v. Paul, 4 Halst. E. 110; Wood V. Clark, 1 Cromp. & J. 484. SEC. I.] OP A DISTEESS FOE KENT. 431 the wharf or warehouse.^ A horse sent to market with corn for sale is protected ; or to a mill with corn to be ground, and remain- ing at the mill-door during the grinding.^ So, where a man sent a horse laden with yarn to a neighbor's to be weighed, whose land- lord just then entered with a distress warrant, it was held, that neither the horse nor the yarn was distrainable ; goods being privi- leged and protected under all such circumstances for the benefit of trade .^ § 588. The exemption seems to be general in all cases where the course of business necessarily puts the tenant in temporary possess- ion of the property of his customers.* Upon this principle, horses and carriages standing temporarily at an inn are privileged.^ But if standing at livery, they are distrainable.^ In South Carolina, however, it has been held, that a horse standing at a livery stable is not, for reasons of public policy, distrainable ; ^ nor for the same reason, a negro boy bound out as an apprentice to learn a trade, accidentally found iipon the premises.^ So, also, goods deposited in a warehouse for storage are not liable to distress ; for the course of such business necessarily puts a tenant in possession of the property of his customers, and it woiild be against the dictates of conscience to allow the landlord to use him as a decoy, and pounce upon whatever should be brought within his grasp.^ Under the Massachusetts law of attachment upon mesne process, which is analogous to the common-law doctrine of distress for rent, it has been held that a stage-coach at a tavern, in preparation, and nearly ready for departure, might be attached ; and the court inclined to the opinion, that steamboats, vessels, and stage-coaches, in actual use, might also be attached.^" § 589. At common law, goods delivered to a common carrier, or other person, to be conveyed for hire, are privileged ;ii so of goods on the premises of an auctioneer, deposited there for the purpose of sale ;^ or a beast sent to the premises of a butcher, to be slaugh- tered.^^ But, although materials delivered by a manufacturer to a 1 Thompson v. Mashiter, 1 Bing. 383. ^ Paelon v. McBride, 1 Bay, R. 170. 2 2 Bac. Ato. Distress, B. " Brown v. Sims, 17 Serg. & Raw. 138 ; 3 Read v. Bm-ley, Cro. Eliz. 549. Walker v. Johnson, i McCord, R. 552. * Himley v. Wyatt et al., 1 Bay. R. i»- Potter v. Hall, 3 Pick. R. 368. 162 ■ 4 McCord, 552. i^ Gisburn v. Hunt, 1 Salk. 250 ; Cro. 6 Co. Lit. 47, 7. Eliz. 549. 6 Prancis v. Wyatt, 3 Burr. 1498; 1 ^ Adams v. Grane, 3 Tyrw. 326; 1 C. Blk. R. 483. & M. 390 ; Hunley v. Wyatt, 1 Bay, R. ' Youngblood v. Lowry, 2 McCord, R. 102. 39. 13 Brown v. Shevill, 2 Adol. & EI. 188. 432 LAW OF LANDLORD AND TENANT. [CHAP. XIII. weaver, to be by him manufactured at his own house, are privileged from the weaver's rent ; yet the frame of other machinery de- livered by the manufacturer to the weaver, with the materials to be used in such manufacture, are not privileged unless there are other goods on the premises to satisfy the rent.^ On the same principle, a barge sent by a customer to the premises of a salt manufacturer to be loaded with salt was not protected ; ^ nor a brewer's casks sent to a public house with beer.^ § 590. If the landlord either expressly or impliedly consent, that chattels placed by a stranger on the tenant's land, shall be exempt from distress, he will be a trespasser if he afterwards distrains them.* Goods deposited with another to await an opportunity to be sold, are not liable to distress or sale for rent owing by the bailee. The law, in affording this protection, looks to the convenience of trade, and not to the business of the bailee, or the particular char- acter of the place where the goods are deposited ; as whether it be a warehouse, wareroom, wharf, or other place of deposit. The clause in the statute exempting from distress, or sale for rent, goods deposited with the keeper of any warehouse in the iisual course of his business, is put merely by way of example, and not intended to limit the protection only to goods thus deposited.^ It was also laid down by Mr. Justice Park, that this principle of exemption extends to every species of trade ; not on account of the character of the individual in whose hands they were deposited, but for the benefit of trade generally, which alone is to be considered, and for which only goods are by law to be favored and protected.^ § 591. As every thing which is distrained is presumed to be the property of the occupant, things wherein a man can have no absolute and valuable property, cannot, for this reason, be dis- trained ; as deer, cats, rabbits, and all wild animals, which are ferce naturae} Yet, if such animals are kept in a private enclosure, for the purpose of sale or profit, this so far changes their nature, by reducing them to a kind of stock, or merchandise, that they become distrainable.* A dog may be valuable property, and is, therefore, distrainable.^ So is the negro of a stranger accidentally on the premises.^" 1 Wood V. Clark, 1 Tyrw. 314 ; 1 Cr. 6 Connah v. Hale, 23 Wend. E. 462. & J. 484; Fenton v. Logan, 9 Bing. 676. « Mathias v. Mesnard, 2 Car. & P. 353. 2 Muspratt v. Gregory, 1 Mees. & W. ' Co. Lit. 47, a. 633. 8 Davis v. PoweU, Willes, 50. ^ Joule V. Jackson, 7 Mees. & W. 450. » Willes, 48. * Horsford v. Webster, 6 Tyrw. 409. w Bull v. Ilorlback, 1 Bay, R. 301. SEC. I.] OP A DISTRESS FOR RENT. 433 § 592. Things affixed to the freehold, although belonging to the tenant, caamot be distrained so long as they remain affixed to the premises. But if they are permanently separated by the tenant or his agent, with a view of applying them to some other purpose, — in which case they would, in fact, no longer have the character of fixtures, — or with a view of removing them from the premises altogether, they become distrainable, althoiigh they may have passed into the hands of a hond fide mortgagee, who removed them in order to secure himself under his mortgage. For a mortgage of goods is not such a sale as will protect them from distress.^ § 593. If a tenant quits possession at the end of his term and sells his goods to a succeeding tenant, they cannot be distrained for arrears of rent due by the former tenant.^ And, as a general rule, goods which have been sold hond fide and for a valuable consideration before the seizure, are not distrainable unless they are suffered to remain an unreasonable time upon the premises after the sale.^ And where goods of a tenant are sold under an execution, a reasonable time to remove them will be allowed to the purchaser ; but there must be no unnecessary delay in the removal, otherwise they become distrainable. Therefore, where they were sold on the afternoon of Saturday and distrained upon the following Tuesday, the distress was held good, because no rea- son was assigned for their remaining on the premises in the mean time.* § 594. Goods in custody of the law, as a distress taken damage feasant, cannot be distrained;^ but in a case where the plain- tiff in replevin was nonsuited, the avowant was allowed to dis- train the same goods for rent since accrued, before the execution of the writ, de retorno habendo.'^ And when goods were seized by the sheriff under an attachment against an absconding debtor, the landlord's right of distress was held not to have been taken away.'^ Where property is rightfully in the hands of a receiver) it is in custody of the court, and cannot be distrained upon with- out permission of the court, by whom the receiver was appointed, 1 Vausse v. Russell, 2 McCord, K. 329 ; " Neale v. Clautire, 7 Har. & Johns. R. Cresson v. Stout, 17 Johns. E. 106 ; Key- 372. nolds V. Shuler, 5 Cow. K. 323 ; Daltou * Gilbert v. Moody, 17 Wend. E. 354. V. Whittem, 1 Car. & Kir. 961 ; Darby v. « Co. Lit. 47, b. Harris, 1 Ad. & El. n. s. 895. ^ Hefford v. Alger, 1 Taunt. E. 218. 2 Cliflfbrd V. Beams, 3 Watts, 246. ' Acker v. Witherill, 4 Hill (N. Y.), E. 112. 37 434 LAW OF LANDLORD AND TENANT. [CHAP. XIII. and it is a contempt of court for a third person to attempt to deprive him of that possession in any manner whatever. But if the landlord has a claim upon such property for the recovery of rent, he may apply to the court for an order that the receiver pay the rent, or that the landlord be at liberty to proceed by distress or otherwise as he may be advised. If his claim is contested, the court will give him leave to go before a master, and be examined pro interesse suo.^ § 595. The same principles are applicable to every interference with the possession of a sequestrator committee or custodee, who holds the property as an officer of the court ; as his possession is in law the possession of the court itself.^ Therefore, where in a suit on a judgment creditor's bill, a receiver of the defendant's property was appointed in October, 1841, and the defendant after- wards assigned his property to such receiver; and at the time of his appointment the defendant was the tenant of certain premises, upon which on the first day of November 1841 a quarter's rent became due ; and afterwards the receiver took possession of the furniture on the premises, and removed it therefrom; and soon after such furniture was removed, and while it was on the carts in the street near the premises, the landlord attempted to distrain the same for rent in arrear, but was prevented from doing so by the prior possession of the receiver : it was held, that as the prop- erty was actually removed from the premises before the landlord attempted to exercise his right to distrain, his right of distress was gone ; and that he had no right to follow the goods, as they were not the goods of the tenant at the time of their removal. But it was held at the same time, that if the term had been assigned t6 the receiver at the time of the assignment of the furniture, and the receiver had taken possession of the demised premises, or otherwise elected to take the term under the assign- ment, that he would have taken it cum onere, and, for the time being, would have been the tenant of the premises, and the removal of the furniture would have been a removal of the goods of the tenant, within the meaning of the statute.^ Property in a boarding-house, though belonging to a boarder, is not exempt if it be in actual possession and use of the tenant, by consent of the 1 Noe V. Gibson, 7 Paige, R. 513 ; Mat- 2 lb. ; Jacob's Ch. Rep. 572 : 1 Hosan ter of Hopper, 5 ib. 489 ; 2 Story's Equity, R. 216. ' 177 ; Martin v. Black, 9 Paige, R. 641. » Martin v. Blacl::, 9 Paige, R. 641. SEC. I.] OF A DISTRESS FOB KENT. 435 boarder, without the landlord's permission.^ But the supreme court of Pennsylvania held, that the goods of a boarder were not liable to distress for the rent of the house, on the ground that chattels so situated were within the reason of the law which pro- tected the property of a stranger tarrying at an inn from being distrained for rent due on account of the premises. And the principle was said to be a growing one, and that it ought to embrace every case that could at all be brought within it.^ § 596. The houses of ambassadors or other public ministers of a foreign prince or state, and of their domestic servants, are, by the law of nations, inaccessible to the ordinary officers of justice, — be- ing considered out of the jurisdiction of the country, — their goods are, therefore, for reasons of public policy, privileged from distress.^ Such things as are in actual use are protected from distress, as the hatchet with which a man is working, the clothes he is wearing,* or the horse he is riding ; ^ which exemption arises from the anxiety with which the law guards against any incitement to a breach of the peace. A cart loaded with grain is, therefore, said to be privi- leged if a man be upon it ; ^ and a stocking frame,'' or a weaver's loom, cannot be distrained while a person is emjoloyed upon it.^ § 597. Nor will the common law permit beasts of the plough, sheep, and the implements of a mechanic's trade, to be distrained for rent, until other chattels sufficient for the demand cannot be found. But with respect to things thus conditionally privileged, it has been held, that even though there be a sufficient distress besides upon the premises, yet if that distress consist of growing crops, which are only distrainable by statute, and not immediately pro- ductive, the landlord is not bound to avail himself of it ; but may distrain the things privileged suh modo.^ And if a landlord dis- train, among other things, his tenant's cattle and beasts of the plough, and it turns out after the sale, that there would, in point of fact, have been sufficient to satisfy the rent and expenses with- out taking them, such distress is not thereby proved to be illegal, if there were reasonable grounds for supposing (judg-ing from appraisement), that without taking the beasts of the plough, there 1 Matthews v. Stone, 1 Hill (N. Y.), 6 story v. Eobinson, 6 Term E. 138. 565, ' "Welch v. Bell, 1 Vent. 36. 2 Riddle v. Weldon, 5 Whart. K. 9. ' Simpson v. Hartoffe, Willes, 512. 8 Vattel, book iv. eh. 9 ; Hopkins v. ^ Gorton v. Talkner, 4 Term R. 26. DeRobeck, 3 Term R. 80. » Piggott v. Britles, 1 M. & Wels. 441. 4 Co. Lit. 47, a. 436 LAW OF LANDLORD AND TENANT. [CHAP. XIII. would not have been sufficient to have satisfied the rent and expenses when sold.^ Cattle belonging to a stranger, though in general liable to be taken if found upon the premises, ^ are not so under particular circumstances ; as if they are put upon the land by the owner for necessary refreshment while on their way to market.^ § 598. Goods of the tenant taken in execution, though remaining on the premises, cannot be distrained, because they are in the cus- tody of the law ; ^ and, by the common law, the landlord lost his lien upon the tenant's goods after the sheriff had levied on them ; for an execution took precedence of all debts, except specific liens.^ But the statute of 8 Anne, c. 14, provided a remedy for a landlord to whom rent is due under these circumstances, by directing the sheriff to pay him not exceeding a year's rent, out of the proceeds of the property seized on the premises by the execution. No partic- ular form of notice was required to be given to the sheriff under this statute ; the only inquiry for him to make was, whether rent was in fact due. Of this he was bound to inform himself, and was liable to the landlord for removing the goods from the demised premises without satisfying the year's rent.^ The Revised Statutes of New York — which, however, as we observed, have abolished this whole provision giving a preference to an execution creditor for the collection of his rent — required that a written notice, with a verification in a certain form, should be served upon the sheriff ; and it was not in the power of the officer holding the execution to dispense with either, for being a summary power given by the stat- ute, it m.ust be strictly pursued.'' § 599. The statute refers only to goods upon the premises, and does not extend to chattels real ; which may, therefore, be taken and sold to satisfy the execution, without any reference to the land- lord's claim for rent.^ Should there be a year's rent due to the landlord at the time of levying the execution, and he omits to give notice to the ofScer of his claim until after the accruing of another year's rent, he is entitled to only one year's rent ; although, subse- quent to the accruing of the second year's rent, new executions are 1 Jenner v. Yoiland, 6 Price, E. 3. « Clark v. Dixon, 3 B. & A 645 • 01- 2 Eead v. Burley, Cro. 549. cott v. Fraser, 3 Hill (N Y ) R '562 ■ 8 2 Saund. R. 290, n. (7). Farrington v. Bailey, 21 Wend. 65 * Eex V. Cotton, Park, E. 120 ; Willes, ' Prisby v. Thayer 25 Wend 396 • 136; HamUton u. Eeedy, 3 McCord, E. Millard v. Eobinson, 4 HUl, 604. ' ' ^'^\ n T-^^71, TT u .. -r.- * Hamilton u. Eeedy, 3 McCord, 38. 5 Co. Lit. 47, b; Henchett v. Kimpson, 2 Wils. 141. SEC. I.] OP A DISTRESS FOR RENT. 437 levied upon the property by another officer, and notice of rent due is given to liim by tlie landlord. Yet if he has given notice of his claim on the levy of the first execution, and gives a like notice on the levy of the second, he may be entitled to two years' rent.^ If the goods are taken in execution after the distress is levied, the landlord may go on and complete his distress, and also claim the accruing year's rent in prefesence to the execution creditor.^ § 600. The statute contemplates only a tenancy existing at the time of levying the execution; where, therefore, a sheriff seized goods under a writ oi fieri facias, and a writ of habere facias posses- sionem was subsequently delivered to him in an ejectment, at the suit of the landlord, on a demise made previous to the fi. fa. ; it was held, that the sheriff was not justified in allowing a year's rent to the landlord, as the tenancy must have ceased on the demise in the ejectment.^ Nor will an agreement between a purchaser and vendor of real estate, where the consideration-money is to be paid in instalments, and the purchaser enters into possession, that the vendor may collect the moneys as they become due, by distress or otherwise, as for so much rent due, will not entitle the vendor to a preference over judgment creditors, as landlord of the demised premises, in case of a sale of the purchaser's property under execu- tion, and notice given by the vendor, claiming the amount due on the contract as rent.^ § 601. It is not material whether the goods seized under the execution belong to the tenant or to a third person ; if they are upon the premises at the time of the seizure, they are liable for a year's rent, and cannot be taken away by the sheriff upon an exe- cution, without paying the landlord the rent due him at the time of levying the execution.^ The landlord's lien, however, extends only to rent due previous to a levy made by the sheriff on the execution, and not for rent subsequently accruing while the goods remain on the premises in the possession of the sheriff.^ Nor is he entitled to the rent of the whole current year, but only to the amount due on the last quarter-day.^ And though there be several executions, 1 Van Kensselaer v. Quackenboss, 17 distress cannot be made of goods which Wend. R. 34. are in the passage way. Winslow u. 2 Biddle v. Biddle, 3 Harr. R. 539. Henry, 5 Hill, R. 481. 8 Hodgson V. Gascoine, 5 B. & A. 88. " Trappan v. Morie, 18 Johns. R. 1 ; * Sackett v. Bamum, 22 Wend. R. 605. Hoskins v. Knight, 1 M. & S. 24.5. ^ Spencer v. McGowan, 13 Wend. R. ' Hagard v. Raymond, 2 Johns. R. 256. If the lease be of premises, with a 478. right of way, or passage appurtenant, a 37* 438 LAW OF LANDLORD AND TENANT. [CHAP. SIII. he can claim no more than one year's rent ; ^ but this he is entitled to without any deduction for sheriff's poundage,^ although the sheriff may deduct such costs as were incurred before he received notice from the landlord.^ § 602. None but the immediate landlord may avail himself of this provision of the statute, for the ground landlord cannot claim a year's rent upon an execution against the under-tenant ; ^ nor is a sheriff liable to the landlord for removing the goods of such a ten- ant from the demised premises, leaving the rent unpaid.^ And the statute only applies to cases where a judgment creditor claims ad- versely to the landlord, and not where the execution is sued out by the landlord himself. It was intended to protect a landlord against frauds which might be committed upon him by his tenant ; particu- larly by his colluding with creditors to issue executions upon his goods. For after his property had thus been placed in legal cus- tody by an execution, and could not be distrained, a judgment creditor, by keeping possession for a length of time, might seriously affect the interests of the landlord. The statute, therefore, only protects landlords against executions issued by third persons, and not by the landlord himself.^ § 603. To compel the sheriff to pay over the year's rent, the landlord or his executor may move the court, out of which the exe- cution issued, that he be paid the amount due to him out of the money produced by the levy, if it be sufficient for that purpose ; and, if not sufficient, then that it be paid to him on account of his rent, so far as it will satisfy the same.'^ And this motion may be made at any time before the sheriff has actually paid over the pro- ceeds to the plaintiff in the execution ; he being bound, upon re- ceipt of the landlord's notice, to retain a year's rent out of the proceeds of the tenant's goods.^ The landlord may also have a special action on the case, for the sheriff's neglect to pay over such rent ; for taking goods after receiving the landlord's notice, without leaving a year's rent on the premises ; ^ or for remaining upon the premises, an unreasonable length of time.^" And if, on receiving 1 Eussell V. Doty, 4 Cow. K. 576 ; ' Henchett v. Kimpson, 2 Wils. 141 • West V. Sink, 2 Yeates, E. 274. 2 B. & B. 67. 2 Colgar V. Speer, 2 B. & B. 67. 8 Arnitt v. Garnett, 3 B. & A. 440. 3 IJenchett v. Kimpson, 2 Wils. R. 140. ^ Levy v. Godson, 4 Term E. 687 ; 2 * Ex parte Bennett, Str. 787. Doug. 655; 13 Price, 445; McLel. 217; 6 Brown v. Fay, 6 Wend. E. 392. Per Ld. Denmau, in Ladd v. Tliomas 12 e Taylor v. Lanyon, 6 Bingh. E. 536 ; Ad. & El. 117. 4 Moore & Pay. 316 ; Camp v. McCor- i" 2 Campb. 117 ; 1 M. & S. 247. mick, 1 Denio, E. 641. SEC. I.J OP A DISTEESS FOR RENT. 439 notice, he finds the goods on the premises are not sufiicient to satisfy a year's rent, he must withdraw.^ But, in order to recover against a sheriff, there must be an averment and proof of loss or damage sustained by the plaintiff, in consequence of the neglect complained of, at least to the extent of being delayed or pre- judiced in some way.^ No action for money had and received to the landlord's use can be maintained for the amount of a year's rent.^ § 604. In an action against the sheriff for removing goods taken in execution, without paying the landlord a year's rent, it is not necessary to prove that the year's rent is due ; it is sufficient to show the occupation by the tenant ; it then lies on the defendant to show that the rent has been paid. Such a claim may be sup- ported for rent stipulated to be paid in advance ; and may be dis- trained for by the landlord, although he is aware that an execution is about to be issued by a judgment creditor.* If goods have been once removed under the execution, and the landlord has notified the sheriff to pay him a year's rent, they cannot be afterwards re- leased and the execution withdrawn, without paying the landlord ; because while they were in the custody of the law the landlord could not distrain them.^ The sheriff's liability attaches, if he re- moves any of the goods without retaining the rent ; for the land- lord cannot be called upon to show that the property remaining on the premises was not sufficient to satisfy his claim.^ But if, upon the goods of a tenant being taken in execution, an agent of the landlord takes from the sheriff's officer an undertaking for a year's rent, and then consents to the goods being sold, tlie landlord can- not afterwards maintain this action against the sheriff, although the rent is not paid according to the undertaking, and although the agreement is void under the statute of frauds, for not stating a con- sideration.'' After a sale under the execution, the goods are no longer in legal custody, and may, if they remain on the premises, be distrained by the landlord, notwithstanding the sale ; therefore standing crops, though protected after the sale, until they are cut 1 Foster v. Hilton, 1 D. P. C. 35 ; 2 B. & Ad. 418. The cases proceed on the & Ad. 418 ; Brown v. Jarvis, 5 D. P. C. analogy to the action on the case, which 281. lies against the sheriff for neglect or 2 Dyke V. Dyke, 4 Bing. N. C. 197 ; 5 wrongful conduct in conducting the sale D. & R. 95 ; 2 Esp. R. 475. of goods under aji.fa., by which they are 3 Green v. Austen, 3 Campb. 260. sold much under their value. Phillips v. < Harrison v. Barry, 7 Price, R. 690. Bacon, 9 East, R. 298. 5 Lane v. Crockett, 7 Price, R. 566. ' Rothery v. Wood, 3 Campb. R. 24. 6 Colyer v. Sheer, 2 B. & B. 67; 2 B. 440 LAW OF LANDLORD AND TENANT. [CHAP. XIIL and a reasonable time has elapsed for their removal, if suffered to remain after such reasonable time has elapsed, cease to be pro- tected, and become distrainable.^ § 605. Formerly, as soon as a landlord distrained goods or chat- tels for rent, he was obliged to remove them elsewhere, unless he had the consent of the tenant to impound them on the premises. If he kept them on the premises, he rendered himself liable to an action of trespass.^ But, to obviate the inconvenience which might frequently arise by enforcing this rule, the statutes provide that the distress may be impounded in any convenient part of the land chargeable with rent. And this is the practice in Pennsylvania, although the clause of the statute 11 Geo. II., which gives this power, is not contained in the act of the assembly .^ At common law, beasts might be put in a public pound at the charge of the owner, but if they were kept in a private pound' the distrainor was bound to keep them at his peril, with provision at his own cost ; and if they died for want of sustenance, the distrainor was liable. Household goods, and other dead chattels which might receive damage from the weather, must be put into a pound covert, other- wise the distrainor was answerable if they were damaged or stolen. § 606. A pound-keeper is bound to receive every thing offered to his custody, and is not answerable whether the thing were legally impounded or not. If the cattle were wrongfully taken, the person who brought the cattle is answerable, and not the pound-keeper, unless he assented to the trespass. When the cattle are once impounded, he cannot let them go without a replevin or the con- sent of the party, for they are then in custody of the law ; and if the pound is broken the pound-keeper cannot bi-ing an action, nor any one else than the person who distrained them.* At common law, if any person, whether owner or irot, of any cattle that had been distrained and put into the common pound, or any other law- ful pound, took them out and drove them away, he was liable to an action of pound breach at the suit of the landlord ; ^ or if, being in possession of a distress which he was desirous of impounding, an- other person rescued it before it was actually impounded, an action on the case might be maintained for the disturbance.^ The ten- 1 Peacock v. Purvis, 2 B. & B. 362. * Badkinw. Powell, Cowp. 476 ; Braud- 2 9 Vin. Abr. Distress, E. 4 ; Winter- ling v. Kent, 1 Term E. 62. bone V. Morgan, 11 East, E. 396 ; 1 H. ^ y. j}, b. 100, b. Black. 13. 6 F. N. B. 101, a; 102, b. ^ Woglam V. Coperthwaite, 2 DaU. E. SEC. I.J OP A DISTRESS FOR RENT. 441 ant, howeTer, may lawfully rescue his goods before they are im- pounded, if the landlord seizes them unlawfully, as where there is ho rent in arrear ; or if, though due, he tenders the rent. So, also, if the landlord takes goods privileged by law, as things protected for the sake of trade, or beasts of the plough, while other things remain on the premises sufficient to satisfy the distress. And a stranger may rescue his goods, if taken without cause.^ § 607. After the goods have been seized, the tenant must at once be notified of it, and an opportunity afforded him to redeem them. The statutes generally provide, that whenever any goods or chal^ tels shall be distrained for rent, the officer making the distress shall immediately give notice thereof, with the cause of such dis- tress, the amount of rent due, and an inventory of the articles taken, by leaving the same with the tenant, or, in case of his absence, at the chief mansion-house, or at some other notorious place on the demised premises. And if a sale is made without giv- ing such notice, the landlord has been held in Pennsylvania to be a trespasser ah initio!^ § 608. A distress when taken cannot be worked or used for any purpose, because the distrainor has only the custody of the thing as a pledge ; ^ but a cow may, and, indeed, ought to be milked, except where she is put into a pound to which the owner has access, that he may milk her himself.* It is said, however, that if a landlord distrain raw cloth, he may cause it to be fulled ; but that hides cannot be tanned, because the tanning will prevent the tenant from recognizing his property.^ If an injury hapi^ens to the distress in consequence of any act of the landlord, however well intended, he must answer for it to the tenant ; therefore, where a horse had several times escaped from the pound, and the landlord, for greater security, tied him to a stake in the pound, and the horse strangled himself with the rope, the landlord had to pay his full value ; for the law insists upon the landlord's keeping the distress thus sacred, upon the principle that it is a mere pledge in his hands to secure the payment of his rent.^ § 609. Upon the same principle, he was formerly, under the old law, forbid to sell or dispose of the distress, after he had taken it 1 2 E. S. 503, § 23 ; 2 "Wm. & Mary, * Cro. J90. 148 ; ib. 1, c. 5 ; Co. Lit. 160, b. ^ Cro. Eliz. 788. ^ Kerr v. Sharp, 14 S. & E. 402. ^ 1 EoI. Abr. 673, 1. 26. 8 Ciamberlayn's Case, 1 Leon. 220. 442 LAW OF LANDLORD AND TENANT. [CHAP. XIII. into his possession, for the purpose of re-imbursing himself, and was obliged to hold it until the tenant thought proper to redeem it ; his security was not, therefore, available to him before the tenant chose to make it so.^ But the statute 2 William and Mary, c. 5, first authorized the sale of the property distrained, and made the pro- ceeding by distress a speedy remedy for the non-payment of rent. It provided, that if, at the expiration of five days from the day of the service of such notice, the amount of the rent due, together with the costs of the distress, shall not be paid, and the goods distrained shall not be replevied according to law, the ofiScer making such distress shall summon two disinterested householders, who shall be sworn by such officer, well, truly, and impartially, to appraise the goods and chattels so distrained, according to the best of their understanding, and the said appraisers shall thereupon appraise the goods and chattels so distrained, and shall state the same in writing under their hands. Of the five days mentioned in the statute, the first of them is to be taken as exclusive, and the last inclusive ; thus, for instance, if the seizure be made on Monday, the notice must be given the same day to expire on Saturday.^ But in Penn- sylvania, it is reckoned exclusive of the day of distress ; and if Sun- day be the last of the five days, it is not to be counted.^ The appraisers must be persons having no interest, either as agent or party distraining, and must be sworn before the appraisement is made.* The officer conducting the proceedings must be present at the appraisement, and is the only person authorized to administer the oath ; and the proceedings will be irregular, if the appraisers are sworn before the sheriff of an adjoining county, or the constable of a neighboring town.^ § 610. After the five days' notice to the tenant of the distress, and five days' notice of sale have also expired, if the rent and the charges thereon still remain unpaid, and the goods have not been replevied, the ofiicer proceeds to sell them for the best price he can obtain for them ; applying the proceeds of sales to the payment of rent and charges, and the balance, if any, as directed by the stat- ute. The landlord is not bound to sell immediately upon the ex- piration of the five days, but is allowed a reasonable time afterwards for the appraisement and sale.^ If, however, he gives the tenant 1 PledaU V. Knapp, 1 Anders. 65. * Lyon v. Weldon, 9 Moore, 629 : 2 2 Wallace v. Eng, 1 H. Bl. 13. 2 Bingh. 334. 8 Moliinley v. Header, 6 "Watts, 37. 6 Kenny v. May, 1 Moo. & Bob. 56. « Pitt V. Shew, 4 B. & A. 208. ' SEC. I.J OP A DISTRESS FOE RENT. 443 farther time for the payment of rent, and suffers the goods to re- main on the premises, it will be prudent to procure the written consent of the tenant to the landlord's keeping possession of the goods upon the premises for the further time thus given. No delay in proceeding to a sale of the property distrained will destroy the lien for rent, nor vitiate the proceedings, where there is no evi- dence of collusion between the landlord and tenant.^ And, as a reasonable time will be allowed for selling, the distrained goods are during such time in custody of the law, and protected from seizure under an execution.^ If the papers upon which the distress was made should be lost, and the sale takes place without them, the purchaser will, nevertheless, acquire a good title, and the authority may be established by secondary evidence.^ § 611. To prevent the landlord from being deprived of his dis- tress by a clandestine and fraudulent removal of the tenant's goods from the premises, it is generally enacted, that if any tenant or les- see who shall remove his goods from any demised premises, either before or after any rent shall become due, for the purpose of avoid- ing the payment of such rent ; and every person who shall know- ingly assist such tenant or lessee in such renioval, or in concealing any goods so removed, shall forfeit to the landlord of the demised premises, his heirs or assigns, double the value of the goods so re- moved or concealed. This section authorizing the landlord to seize any goods which have been removed from the premises, and impos- ing a penalty on the tenant and others, removing or concealing them for the purpose of defrauding the landlord, applies only to the removal of goods that belong to the tenant, and not to those of a stranger, which may happen to be upon the premises, although they may be liable tp a distress.^ The statute, however, contemplates physical aid and assistance, directly or indirectly, in the removal or concealment of the goods, and not mere advisory aid. Nor will the removal or concealment of part of the goods subject the party to the penalty of removing or concealing the whole. And where a tenant is in possession of goods, the law will intend that he is the owner ; and the burden of proof to the contrary lies upon him who has removed them to avoid the distress.* 1 Bac. Abr. Execution, C. 4 ; Harrison K. 447 ; Slocmn v. Clark, ib. 475 ; Thom- V. Barry, 4 Price, 690." ton v. Adams, 5 M. & S. 38; 11 Geo. 11. 2 Peck V. Gurney, 2 HiU (N. Y.), R. u. 19. 605. * Strong v. Stebbins, 5 Cow. E. 210. 3 Coles V. Marquand, 2 HiU (N. Y.), 444 LAW OP LANDLOED AND TENANT. [CHAP. XIII. § 612. If a man's servants, or any person in his employ, by his direction, or with his knowledge and assent, assists in the removal of the tenant's goods, it will render the principal liable ; or if the goods are removed to his hoiise, and received and concealed by him, he knowing the object and circumstances of the removal, this will bring him within the statute ; but the mere advising the re- moval of the goods will not subject him to the penalty of the stat- ute.i And although the tenant may sell or mortgage his fixtures, yet if he does mortgage them, and the mortgagee takes possession and removes them, after they have become liable for the rent, the landlord may yet follow and distrain them within thirty days there- after ; but the mortgagee will not, by such removal, subject himself to the penalty imposed by the statute for a fraudulent removal.^ In aai action for the penalty for assisting a tenant in concealing goods removed from the demised premises, a person who deters a bailiff from taking the property by falsely denying the tenant to be the owner thereof, alleging a third person to be the owner, subjects himself to the penalty.^ But where a creditor took the goods of his debtor, and removed them from the premises by the debtor's assent, in payment of a debt, apprehensive of the landlord's dis- training, the court held there was nothing in the transaction in contravention of the statute.* And where the action is for aiding and assisting the tenant in the fraudulent removal of his goods, with intent to prevent the landlord from distraining, the landlord must prove not only that the defendant assisted the tenant in such fraudulent removal, but was also privy to the fraudulent intent of the tenant ; for, as to suits against third persons under this section, the statute is penal, and requires strict proof to bring the case within the statute .^ § 613. At common law, if an entry or authority is given to any one hy law, and he abuses it, he is to be considered a trespasser from the beginning ; his original entry, and every act done in pur- 1 Lister v. Brown, 3 D. & R. 501. fraudulently carry away from the demised 2 Reynolds v. Sliuler, 5 Cow. R. 323. premises, his goods or chattels, with intent The Supreme Court of Pennsylvania held, to defraud the lessor of his remedy by in the case of Grace v. Shively, 12 S. & R. distress. And in such case the landlord 217, that their statute did not apply to cases may consider his rent as apportioned to where the goods were removed before the the time of the carrying-away of the goods, rent became due. The Legislature, on 25 and distraui the goods within thirty days, March, 1825, thereupon passed an act wherever they may be found. confined in its operation to the city and ^^ Crafts v. Plum", 11 Wend. R. 148. county of Philadelphia, by which the land- * Bach v. Meats, 5 M. & S. 200. lord is enabled, even before his rent is due, ^ Brooke v. Noakes, 8 B. & C. 637. to distrain for it, when the tenant shall SEC. I.] OP A DISTEESS FOR RENT. 445 snance of it, is viewed as if the law had given him no authority whatever to enter ; ^ but if he abuses an authority given liim by the party, he is not to be held as a trespasser ah initio. The reason assigned for this distinction is, that where a general authority or license is given by law, the law judges of a man's previous inten- tions by his subsequent acts ; but where the party himself gives an authority, he cannot, for any subsequent cause, convert that which was originally done under his sanction, into a trespass ah initio ; in this latter case, therefore, only the subsequent acts will amount to a trespass. Thus the law gives authority to enter upon land to distrain, but if the distrainor works or kills the distress, or commits any irregularity, the law adjudges that the party entered for the specific purpose of committing the particular injury, and because the act which demonstrates the intention is a trespass, he is ad- judged a trespasser ah initio. One of the consequences of this doc- trine was, that if a landlord committed the least irregularity in distraining for rent, he was considered a tort feasor throughout, and answerable to the tenant for the value of the goods distrained. And if any of the acts of his agent were without the prerequisites appointed by law, as if cattle were impounded without previous ap- praisement, or goods taken under a warrant of distress for rent were sold without appraisement and advertisement, — where, as in Pennsylvania, the statute of 11 Geo. II. c. 19 is not in force, — the landlord became a trespasser ah initio.^ § 614. As^this doctrine, however, was found to bear hard upon landlords, it is now provided by statute, that when a distress shall be made for rent justly due, and any irregularity or unlawful act shall be afterwards done by the party distraining, or his agent, the distress shall not, therefore, be deemed unlawful, nor the party making it a trespasser from the beginning ; but the party aggrieved may maintain an action of trespass, or of trespass on the case, and recover satisfaction for the special damages he may have sus- tained by such irregularity, with costs.^ If, therefore, a landlord commences his proceedings right, but should afterwards carry them on wrong, he is only chargeable as a trespasser from the time when 1 Six Carpenters' Case, 8 Co. 290; Van WaddeU v. Cook, 2 Hill (K Y.), R. 47; Brunt w. Schenck, 16 Johns. 414 ; 5 Wend. Oxley «. Watts, 1 Term E. 12; Aitken- K-. 506. head v. Blades, 5 Taunt. 198. 2 Sackrider v. M'Donald, 10 Johns. R. » 2 R. S. 505, § 28 ; 11 Geo. II. u. 19. 253; Purrington v. Loring, 7 Mass. R. § 19. 388 ; Kerr v. Sharp, 14 Serg. & Raw. 399; 38 446 LAW OP LANbLOED AND TENANT. [CHAP. XIII. the wrong commenced, and not from the original taking of the goods ; and all the injured party can recover is the actual damage he has stistained in consequence of the irregularity.^ The nature of the irregularity, and the peculiar circumstances of the case, must determine whether the proper form of action is trespass or case. We shall have occasion to discuss this subject more fully when we come to the action of trespass ; but as a recent illustra- tion of the statute, we will here mention, that where a landlord distrained for rent, amongst other things, some goods which were not legally distrainable, he was held to be a trespasser only as to those particvilar goods.^ SECTION II. THE ACTION OP DEBT FOE EENT. § 615. The action of debt is another remedy which the landlord has for the recovery of rent. The action is so called because it is in legal consideration for the recovery of a debt eo nomine and in numero ; and though damages are in general awarded for the de- tention of the debt, yet, in most instances, they are merely nominal, and not, as in assumpsit and covenant, the principal object of the suit. By it, every kind of rent is recoverable, whether the contract of demise be by deed, or by parol ; and whether it is payable in money, corn, or other produce of the land reserved by the lease. In the latter case, the plaintiff recovers, not the produce itself, but its value in money, at the time the rent becomes payable. In ad- dition to the debt, he recovers, also, interest on the rent from the time it was due, as damages for its detention ; and, if payable in wheat, or other produce, he is entitled to interest on the value of such produce, if it was not delivered on the day stipulated.^ § 616. This action is founded on the privity of contract, said to be annexed to the person in respect to the estate, and follows the estate. When the estate is transferred, the remedy is transferred also ; if, therefore, the lessor grant his reversion, this remedy fol- lows the reversion to the grantee, and when he assigns it the 1 Winterbounie v. Morgan, 11 East, R. 1. 28 ; Cheny's Case, 3 Leon. 260 ; 4 ib. 395. 46 ; Van Rensselaer's Ex'rs v. Jewett, 5 ■^ Hawey v. Pocoek, 11 M. & W. 740. Denio, K. 185. 8 Demy v. Parnell, 1 Kol. Abr. 591, SEC. II.] THE ACTION OP DEBT FOR RENT. 447 remedy will pass to the assignee.^ The action is not maintainable in any case, unless the demand be for a sum certain, or for a pecu- niary demand which can readily be reduced to a certainty. In some cases it is the peculiar remedy, as against a lessee for an ap- portionment of rent, upon his eviction from part of the premises by a third person, though covenant may in such cases be sustained against the assignee of the lessee.^ It is also the only remedy against a devisee of land, for a breach of covenant by the devisor.^ It is the appropriate remedy at common law for the lessor, or his assignee, against the assignee of a term of years.* So where the lessee assigned a moiety of the land for the whole term, the lessor brought debt against the assignee for a moiety of the rent ; and it was moved, in arrest of judgment, that the privity of estate and of contract remained entirely with the lessee, and that, therefore, the assignee of a moiety was not chargeable ; but the court held that the assignee, having the whole estate in the moiety of the land, has privity of estate suf&cient to be charged by the lessor, if he will, with a moiety of the rent, and gave judgment for the plaintiff.^ The lessor may also have a joint action of debt against the lessee and assignee for the whole rent.^ § 617. So debt lies for rent upon a lease, though the defendant entered before his title began ; for though he is clearly a disseizor by his entry, and the accruing of the term does not alter his estate, yet debt lies upon the privity of contract ; and, whether the entry be tortious or not, cannot discharge the contractor from payment of rent.'^ If a lessee for years assign over his term, reserving rent, he may maintain debt for the rent in arrear, although he has no rever- sion.^ So the landlord, after he has entered for a forfeiture of the lease, may recover the rent which accrued previous to such for- feiture, in this action or upon the covenants in the lease. But for rent which became due subsequent to that time he cannot recover as landlord ; and his only remedy is, to proceed for the mesne pro- fits in an action of ejectment against the lessee or the person who 1 Howland u. Coffin, 12 Pick. 125 ; s. c. * Thursby v. Plant, 1 Wm. Saund. 9 *. 52 ; Walker's Case, 3 Kep. 22, b ; 241, b ; 5 B. & C. 512. Humble v. Oliver, Cro. Eliz. 328. ^ Gamon v. Vernon, 2 Lev. 231 ; Sir T. 2 Stevenson v. Lan^bard, 2 East, R. Jones, 104. 579 ; 2 Saund. K. 182. Rent does not " Bailiff of Ipswich v. Martin, Cro. Jae. accrue to a lessor as a debt until the lessee 411. has enjoyed the use of the land. Bord- ' Cro. Eliz. 169 ; 1 Str. 550. man v. Osborn, 23 Pick. R. 295. ' Newcomb v. Harvey, Carth. 161 ; De- 3 Doe dera. Vernon v. Vernon, 7 ib. 12. marest v. Willard, 8 Cow. R. 206. 448 LAW or LANDLORD AND TENANT. [CHAP. XIII. has held the possession of the premises adversely to his claim.^ As to a lease made by tenants in common, it is settled that the sur- vivor may sue for the whole rent, although the reservation be to the lessors according to their respective interests ; for it is a well-known rule, that an action for rent by tenants in common is in its nature a joint action, and consequently the survivor may sue for the whole. 2 § 618. Debt will also lie for use and occupation generally, with- out setting forth the particulars of a demise ; and where, to a gene- ral count for use and occupation, the defendant demurred that it did not set forth any demise of the premises, nor for what term they were demised ; what rent was payable, nor for what length of time the defendant held and occupied the premises ; nor when the sum thereby supposed to be due became due, nor for what space of time ; the court still gave judgment for the plaintiff on that count.^ The assignee of the reversion, however, in the case of a yearly ten- ancy by parol, cannot, it would seem, bring debt for use and occu- pation, where such use and occupation was before the assignment to him, but the proper remedy is debt for rent on a parol demise.* And debt is not maintainable against the lessee after an acceptance of the assignee, but covenant only, as the assignment and accept- ance of the assignee destroys the privity ; though, if there be no acceptance of the assignee, debt lies notwithstanding the assign- ment ; and even covenant, after such acceptance of the assignee, only lies against the lessee upon express covenants, and not upon covenants implied in law.^ § 619. This action lay at common law for the rent of lands de- mised, either for life, for years, or at will,^ with the distinction, however, that upon a lease for years, or at will, it lay as soon as rent became in arrear ; but, on a freehold lease, debt could not be maintained until after the lease was determined, either by the death of the party for whose life it was granted,'' the surrender of the lease, or by the lessor's putting an end to the lease upon a for- feiture, or recovering the lands in an action of waste.^ This dis- 1 Stuyvesant v. Daris, 9 Paige, R. 427. 6 Scott, 469 ; 6 T. R. 62 ; 1 Adolph. & El. 2 Wallace v. McLaren, 1 Man. & Ry. n. s. 850: McKeon v. Whitney 3 Den' 516. R. 452. 8 Wilkins v. Wingate, 6 Term R. 62; « Co. Lit. 162, a; Lit. Sec. 53 72 Davies v. Edwards, 3 M. & S. 380. ' Co. Lit. 162, a; Ld. Raym 1056- 1 4 Mortimer v. Preedy, 3 M. & W, 605, Saund. 303. ' per Parke, B. » Ognel's Case, 4 Rep. 49. 5 1 Saund. 241; Simpson v. Clayton, SEC. II.] THE ACTION OP DEBT FOR RENT. 449 tinction is said to have arisen from the action of debt lying only upon contract ; when the freehold was in existence it conld only be the subject of a real action, hut, after it was determined, the claim for rent was changed into a contract ; and, therefore, as soon as the estate was at an end, debt lay for the arrears previotisly due. It therefore required a special enactment to place freehold leases upon the same footing with leases for years.^ By the Revised Statutes of New York, any person having any rent due upon any lease for life or lives, may have the same remedy to recover such arrears, by action of debt, as if such lease were for years. The statute is con- fined to the case of rent reserved hy lease, and does not extend to the arrears of an annuity, or rent-charge for life, charged upon lands, for which, at common law, no action of debt will lie ; ^ and as the common law as to annuities, or rent-charges out of land of a freehold nature, still prevails, debt will not lie for arrears thereon, so long as the estate of freehold continues. Thus it has been held that it will not lie for the arrears of a rent-charge devised to A., payable out of land devised to B. during the life of B. ; and this, though it did not appear in the declaration that the grantor had a freehold in the lands.^ § 620. The lessee, as well as his executors and administrators, remains liable to an action of debt by the lessor or his assignee, so long as the term continues,* and he cannot discharge himself from such liability by his own act ; ^ if, therefore, the lessee assigns the lease, he or his execiitor still remains liable for rent in this action ; ^ but if the lessor accepts rent from the assignee, and recog- nizes him as his tenant, an action of debt will not lie against the original lessee, though covenant may.'' If the lessee assigns part of his estate, debt lies against the assignee for the part held by him, and against the lessee for the residue.^ But the plaintiff must show that the defendant is assignee of part only, and must not declare against him as assignee of the whole, nor, as it would seem, for the 1 Webb V. Jiggs, 4 M. & S. 113 ; Nor- s. c. 6 Dow. 650. But see 1 Saund. 281, ton V. Vultee, 1 Hall (N. Y.) R. 389 ; 1 n. 1; 2 D. & R. 003; 14 Ves. 491. R. S. 747 ; 8 Anne, c. 14, § 4. * Rushden's Case, Dyer, 4, b. 2 2 Saund. 304 ; Randall v. Rigby, 4 ^ Walker's Case, 3 Rep. 23. M. & W. 130; s. c. 6 Dow. 650; 4 M. « Auriol v. Mills, 1 H. Black. 433; 4 & S. 113 ; 3 B. & B. 130. Term R. 94. 3 Webb V. Jiggs, 4 M. & S. 114 ; Kelly ' Lord Rich v. Frank, 1 Bulst. 2 ; Yelv. V. Clubbe, 3 Brod. & Bing. 130 ; 2 Saund. 103 ; Wadham v. Marlow, 8 East, R. 314. 304 ; Randall v. Rigby, 4 M. & W. 130 ; * Walker's Case ; Auriol v. Mills, supra. 38* 450 LAW OP LANDLORD AND TENANT. [CHAP. XIII. whole rent.i In like manner, if the executor or administrator should assign the lease, he still remains liable to an action of debt; 2 and the landlord may have his choice, whether to sue the lessee or assignee,^ or both jointly ; * but the assignee is liable to this action only so long as he is possessed of the term, for after he assigns over his interest his liability ceases.^ § 621. By the common law, the assignee of the reversion or of the rent was only entitled to this action against the lessee after the lessee had attorned, and recognized the change of person to whom rent was due.^ An attornment, however, became unnecessary after the statute of 11 Geo. II. c. 19, which has been generally adopted on this side the Atlantic. Thus, the New York statute declares, where any lands or tenements shall be occupied by a tenant, a conveyance thereof, or of the rents or profits, or any other interest therein by the landlord of such tenant, shall be valid, with- out any attornment of such tenant to the grantee ; but the payment of rent to such grantor by his tenant, before notice of the grant, shall be binding upon such grantee ; and the tenant shall not be liable to such grantee for any breach of the condition of the demise, until he shall have had notice of such grant.'^ And we have seen that the grantees of the reversion are entitled to the same actions which the lessor might have had, if the reversion had remained in the grantor.* If the lessor assign his rent without the reversion, the assignee may maintain an action of debt for the rent, because the privity of contract is transferred ; ^ but if the lessor grant away his reversion, he cannot have an action of debt for the rent ; be- cause, being incident to the reversion, it passes with it. The gran- tee of the reversion even cannot have debt against the lessee if he has assigned over ; for there was no privity between them but a mere privity of estate, and that being gone by the assignment, this action will not lie.^'' § 622. It would seem that, at common law, an action of debt for rent in arrear did not lie against a tenant at sufferance ; for the contract was determined, and he was adjudged to be in by wrong ; but in such cases there is now a special provision. By statute 4 1 Curtis V. Spitley, 1 Bingli. N. C. 759 ; « Co. Lit. 309, a. Hare v. Cator, Cowp. 766. ' 1 R. S. 739, § 146. See also, Farley 2 Devereux v. Barlow, 2 Sauud. B. 181. v. Tliompson, 15 Mass. U. 26. ** Gamon v. Vernon, 2 Lev. 231. » ^^^^g^ § 442 ; 1 R. S. 747, § 23. * Com. Dig. Det. (E). 9 Allen 'v. Bryan, 5 Barn, k Cress. 512. 6 Tongue v. Pitcher, 8 Lev. 295; 4 i» Humble v. Glover, Cro. Eliz. 328. Mod. 71. SEC. II.] THE ACTION OP DEBT FOR RENT. 451 Geo. II. c. 28, § 1, of which the Revised Statutes of New York, vol. i. p. 745, § 11, is almost a transcript, if any tenant for life or years, or if any other person who may have come into possession of any lands or tenements, under or by collusion with such tenants, shall wilfully hold over after the termination of such term, and after demand made and notice in writing given, requiring the possession thereof by the person entitled thereto, such person so holding over shall pay to the person so kept out of possession, or his representa- tives, at the rate of double the yearly value of the lands or tene- ments so detained, for so long time as the same are detained, to be recovered by action of debt, against the recovery of which penalty there shall be no relief in equity. This statute has been held to be a penal statue ; and, therefore, by strict construction, a tenant for a less period than a year is not within its provisions.^ Nor will a tenant who holds over under a fair claim of right be considered as holding over wilfully within the meaning of the statute, though it may be decided eventually that he has no right.^ § 623. The same statutes also declare, that if any tenant shall give notice of his intention to quit the premises holden by him, and shall not accordingly deliver up possession, such tenant, his execu- tors, or administrators, shall thenceforth pay the landlord double the rent which he should otherwise have paid, to be levied, sued for, and recovered, at the same time and in the same manner as the single rent ; and such double rent shall continue to be paid during all the time such tenant shall continue in possession.^ Under this statute it has been held that a tenant for a year, under a parol demise, is included in it; that' his notice need not be in writing ; and that the landlord may recover the double rent either by an action of debt or by distress ; * also that the tenant's notice must fix some particular time when he will quit ; for if he gives notice that he will quit as soon as he can possibly get another situ- ation, it will not enable the landlord to recover, although he can prove that the tenant had got another situation.^ And the accept- ance of single rent, accrued since the notice, is a waiver of double 1 Lloyd V. Rosbee, 2 Campb. N. P. 455. after a recovery in ejectment. Soulsby 2 Wrigbt V. Smith, 5 Esp. N. P. C. 203. v. Nerin, 9 East, 310. One tenant in common may maintain an ^ 11 Geo. II. c. 19, § 18 ; 1 E. S. 745, action on this statute, without his com- § 10. panion, for double the yearly value of his * Timmlns u. Eawlinson, 3 Burr. R. moiety ; for where the injury is separate, 1603. tenants in common may have several ac- * Farrance u. Elkington, 2 Campb. N. tions. Cutting v. Derby, 2 Black. E. P. C. 591. 107 7. And the action may be brought 452 LAW OP LANDLORD AND TENANT. [CHAP. XIII. rent, although it does not necessarily imply a consent that the ten- ancy should continue.^ § 624. It is a general rule, that whenever an action is founded upon a deed, such deed must be declared upon ; but the action of debt for rent in arrear forms an exception to this rule, for the plain- tiff may here state the substance of the demise only.^ So, the plaintiff need not set forth any entry or occupation ; for, though the defendant neither enters nor occupies, he must pay the rent, it being due by the contract, and not by the occupation.^ As against an assignee, it is not incumbent on the lessor to set forth the seve- ral ynesne assignments ; it is sufficient to state generally, that all the estate, &c., of the lessee, vested in the defendant by assignment, for it cannot be presumed that the lessor is acquainted with the particulars of the assignee's title.* But, if brought by an assignee of the reversion against the lessee, he must set forth the seizin in fee of the first tenant, and the several mesne assignments down to himself; for these are necessary to make out his title, and, being matter of law, must be shown to the court.^ § 625. The action of debt or covenant by a lessor against the lessee is always transitory, and may be brought in any county, even if the land is in another State.^ It is so, also (being founded on the privity of contract), when brought, by the heirs or personal representatives of the lessor, against the assignees, grantees, or representatives of the lessee, except on covenants against encum- brances, or relating to the title or possession of the premises.' The same rule applies also to actions for use and occupation.^ But where the action is founded on the privity of estate only, and not on the privity of contract, it is local, and must be brought in the county where the land lies,^ as by the lessor against the assignee of the term ; or by the executor of the lessor, or by the assignee of the term against the lessor .i" So are actions of debt or covenant by the assignee of the reversion against the lessee, or an assignee of 1 Cowp. R. 246. 6 Esp. N. P. 220. 2 Atty V. Parish, 1 B. & P. N. R. 109 ; « Bracket v. Alvord, 5 Cow. R. 18 • 7 Davis V. Shoemaker, 1 Rawle, R. 135. Co. 2, a ; 2 Cro. Car. 142 ; Co. Lit. 282. The statute of limitations is a bar to an ' lb. ; R. S. 747, § 23-25. action of debt for rent in arrear, where * Corporation of New York w. Dawson the demise is witliout deed; but not 2 Johns. Cas. 335; 2 Caines 874- 3 Serg' wliere the rent is reserved by specialty. & R. 502. ' ' Davis V. Shoemaker, 1 Rawle, R. 135 ; « Cro. Car. 184 ; Cro. Jac 143 • 2 R Freeman v. Stacy, Hutt. 109. S. 409, § 2. ' ' Bellasis v. Burbricke, 1 Ld. Raym. i° I'wils. R. 165; Hob 37- 5 Co 17 "Vt.-.* t, „ ot -,. a; I'- N. B. 146; 2 Johns. Cks. 335; 3 * Pitt V. Russell, 3 Lev. 19. Serg. & Rawle, 502. SEC. II.] THE ACTION OF DEBT FOE RENT. 453 the term ; or by the assignee of the term against the assignee of the reversion.! Debt or covenant by the lessor against the executor of the lessee, for arrears of rent accrued in the testator's lifetime only, is transitory ; but if brought in the debet and detinet for rent in the executor's time, it is local ; because the executor is then charge- able as assignee on the privity of estate.^ § 626. Debt against an executor for rent, incurred during the life of the testator, must be in the detinet only.^ But for rent incurred after the death of the lessee, the action may be brought either in the debet and detinet or in the detinet only, for the lessor has his election,* and the only inconvenience of suing in the detinet is to the plaintiff himself, who waives his right to demand satisfac- tion out of the estate of the defendants, and contents himself with what the testator's estate will afford. Debt by or against an execu- tor or administrator, for rent in arrear, partly in the time of the testator or intestate, and partly in the time of the executor or ad- ministrator, is well brought in the detinet only.^ If, in such case, the plaintiff, in the same declaration, charge the defendant in the detinet for the rent in the time of the testator or intestate, and in the debet or detinet for rent in his own time, the declaration will be bad on demurrer, because several judgments would be required.^ If, therefore, the lessor will not waive his right of demandhig satis- faction out of the estate of the defendant, he must bring two actions. If A. demises land by indenture to B. for years, yielding rent, and B. dies, making C. his execiitor, the lessor may have debt against the executor for the rent reserved, and in arrear after the death of the lessee, although the executor never entered or agreed ; for the executor represents the person of the testator, who, by the indenture, was estopped and concluded, during the term, to pay the rent upon his own contract, and, therefore, although the rent is higher than the profit of the land, yet the executor cannot waive the land, but shall be charged with the rent.^ In debt for rent against the lessee or his personal representatives, an assignment 1 5 Co. 17, a ; P. N. B. 146, c. one parcel of land under the plaintiff, and 2 3 Co. 24 ; 1 Sid. 266 ; 5 Lev. 80 ; could not be misled, the mistake was held Archb. PI. 88. immaterial. But if the particulars of the * 1 Rol. Abr. 603 (S.) pi. 9. demise are stated, they must be proved as * Rich V. Frank, Cro. Jac. 238, 549 ; stated. Bristow v. Wright, 2 Doug. 665. Royston v. Cordrye, Aleyn, 42. Where ^ Smith v. Norfolk, Cro. Car. 225. no place was alleged in the declaration, ^ Salter v. Codbold, 3 Lev. 74. and the particulars of demand described ' Hovvse v. Webster, Yelv. 103; Hel- the premises as situated in the wrong ier v. Casbert, 1 Lev. 127. place ; yet, as the defendant held only 454 LAW OP LANDLORD AND TENANT. [CHAP. XIII. before the rent became due cannot be pleaded in bar of the action, for the privity of contract remains, notwithstanding the assign- ment ; 1 but an assignment and acceptance by the lessor of the assignee as his tenant may be pleaded in bar, either by the lessee or his personal representatives ; because the lessor's acceptance of the assignee as his tenant destroys the privity of contract.^ § 627. Where two persons claim the rent, neither of whom has been acknowledged by the tenant as his landlord, he may file a bill of interpleader for the purpose of ascertaining to which of the claimants it is to be paid.^ And, although in general a court of equity will not allow a tenant to set up a title against his landlord, the rule does not hold where the question arises upon the act of the landlord, or other commencement of the relation of landlord and tenant.* The defendant may also show, that he has been evicted, and kept out of the possession of the premises, or some material part thereof, by the landlord, and that the rent is thereby suspended.^ But it must appear that an eviction has actually taken place, for a mere trespass or disturbance by a stranger, or even by the lessor himself, will not cause a suspension of the rent ; ^ and, therefore, in a case where the lessor entered upon the premises and destroyed a summer-house upon them, it was held not to work a suspension of the rent.^ But when the lessor railed off a part of the premises,^ and where, in another case, the landlord gave notice to the under-tenant to quit, which the under-tenant accordingly did,^ the act of the lessor, in both cases, amounted to an eviction, and consequent suspension of the rent. This defence may be made at law when the action is brought for rent reserved by the lease ; but when the lessee cannot make out his defence at law, as where he has given a bond, or independent covenant, for the amount of the rent, a court of equity will relieve him.^" § 628. The general plea of infancy cannot properly be pleaded to debt for rent on an indenture of lease ; and where a defendant pleaded infancy at the time the lease was made, the court upon de- murrer held, that as the lease might be for the benefit of the infant, 1 Walker's Case, 3 Eep. 22, a ; 1 Lev. Dalston v. Reeve, Ld. Eaym. 77 • Bum v 127. Phelps, 1 Stark. 94. 2 Marsh v. Brace, Cro. Jao. 334 ; Mar- " Keynolds v. Buckle, Hob. 826 ■ Ld row !). Turpin, Cro. Eliz. 715. Raym. 369 ; Cro. EUz. 421 : Taylor v Za- 3 Hodges V. Smith, 16 Ves. 203. mira, supra. 1 9 Ves. 107; 13 ib. 383; 2 Ves. ib. ' Hunt v. Cope, Cowp. 242. 696 ; 6 Mad. 28. 8 gmith „ Rawleigh, 3 Camp. 513. s Strowd u. Willis, Cro. Eliz. 362; ^ Burn i>. Phelps, sw/ira. 1" Poston V. Jones, 2 Iredell, R. 350. SEC. II.J THE ACTION OF DEBT FOR RENT. 455 it was voidable only at his election, by waiving the lease before the rent day ; but it not being shown that the rent was of greater value than the land, and the defendant being of full age before the rent day, the plaintiff had judgment.^ A plea that no rent is in arrear and unpaid is equivalent to a plea of nil debet, since it relates not to the time of the plea pleaded, but to the commencement of the action.^ A receipt for rent due at a particular time will be good presumptive evidence that all previous rent has been paid ; but this, like every other presumption, may be rebutted, or it may be shown that the receipt itself was obtained coUusively or by fraud.^ § 629. For reasons of public policy, a tenant is never allowed to dispute his landlord's title, after having accepted possession under him.* A lessee by indenture is technically estopped from denying it ; but a lessee under a lease by deed poll, who has not actually occupied the premises, may be permitted to do so.^ Nor can a tenant to a mortgagor set up the title of a mortgagee against the mortgagor; because he holds under the mortgagor, and thereby admitted his title.^ So in debt for rent on a parol lease, non dimisit may be pleaded,^ but not for rent on indenture, even by an assignee of the lease.^ But although a tenant cannot deny the 1 Ketsey's Case, Cro. Jac. 320 ; 3 Burr. ^ Warner v. Theobald, Cowp. 588. 1719; 1 Rol. Abr. 731. In debt on a spe- " Skaife v. Jackson, 3 B. & C. 421; cialty, there is a material distinction be- Farrar v. Hutchinson, 9 Ad. & El. 641. tween those cases in which the deed is * Jackson u. Hinman, 10 Johns. R. 292; only inducement to the action, and matter Ingraham v. Baldwin, 9 N. Y. K. 45 ; of fact the ibundation of it, and those in post, § 629. When a tenant may contro- which the deed itself is the foundation vert his landlord's title in an action for and the fact merely inducement ; for, rent, see § 705 ; when in an action of eject- though the plaintiff declare setting forth ment, § 706. A lessee after enjoyment is an indenture of lease, yet, as the fact of estopped to deny the title of his landlord, the subsequent occupation gives the right Bailey v. Kilburn, 10 Met. B. 176 ; 10 ih. to the sum demanded, and is the founda- 223; Hodges v. Shields, 18 Ken. R. 828. tion of the action, and the lease is mere Kxcept in cases of traud or mistake, inducement, the defendant may plead nil Lively v. Ball, ih. 53. debet. 1 Saund. K. 2/6, n. 1, 2; 2 ib. 297, ^ Wilkins v. Wingate, 6 Term. R. 62; n. 1 ; BuUus v. Giddens, 8 Johns. B. 83. Blake v. Foster, 8 ib. 487. In an action to This plea puts the plaintiff on proof of his recover rent upon a written lease not whole declaration, and under it an evic- under seal, the defendant is estopped from tion, payment, or release, may be given disputing the lessor's title, where his an- in evidence. But in debt for rent on an swer discloses the fact that he had entered indenture of lease, the defendant cannot, upon and enjoyed the demised premises, under it, give in evidence that the plaintiff although the plaintiff counts upon the had no estate in the tenements ; because, if contract, and not upon use and oceupa- he had pleaded that specially, the plaintiff tion. Vernam o. Smith, 15 IN. Y. Rep. might have replied the indenture, and 327. estopped him. Blake- v. Foster, 8 Term '^ Esp. N. P. 233 ; Cooke v. Loxley, 5 R. 487 ; 2 "Wils. R. 208. It seems that, in 6 Term R. 5. Pennsylvania, a defendant may give the ' Gilb. Debt, 438. statute of limitations in evidence under ^ 2 Taunt. R. 278 ; 2 Ld. Raym. 1551 ; the plea of m7 rfe6e(. Davis w. Shoemaker, 6 Term R. 62; 7 i'ft. 537. 1 Rawle, 135. 456 LAW OF LANDLORD AND TENANT. [CHAP. SIII. right of his landlord to demise at the time of the lease, or set up an outstanding title which he has acquired adverse to that of his landlord, the estoppel goes no further; it exists only during the continuance of his occupation, and if he is ousted by title para- mount, he may plead it.^ And if he obtains possession from one who falsely and fraudulently represented himself to be the land- lord, he may show that such person was not the landlord, nor the actual possessor at the time the agreement was made.^ So he may always show that the title under which he entered has expired, or been extinguished ; ^ or that he has himself lawfully acquired it subsequent to the demise. For, if a landlord parts with his title pending the lease, the duty of the tenant, including that of paying rent, is due to the assignee, whoever he may be ; and should the tenant himself acquire the landlord's right, the lease would be extinguished. If, therefore, a lessee purchases the lessor's rever- sion at a sheriff's sale on an execution against the lessor ; or ac- quires his interest in it, as a redeeming creditor, the operation is the same as if the lessor had granted and conveyed the reversion to the lessee, and with it the right to collect rent. Where the interest of the landlord thus acquired by the tenant extends to the whole of the demised premises, he may set it up in bar of a recovery for rent ; but if it includes only a part of the premises, it operates in diminution of the damages, and the rent will be apportioned.* If, however, the action be brought by an assignee of the reversion, the defendant may dispute his derivative title.^ And where the tenant did not receive possession from the plaintiff, but merely attorned to him during his tenancy, he is not thereby estopped from disputing his title, for he may, by mistake, have attorned to a person who has no title.s § 630. It appears to be a rule of the English law, that to an action of debt for rent the tenant cannot set up that he has been " put to expense by the landlord's breach of covenant," and so set off one demand against the other, unless there is a covenant in his lease enabling him to do so.^ And although it was decided, that where the lessor had bound himself to repair, the lessee might 1 Hayne r. Maltby, 3 Term R. Ul. * Nellis v. Lathrop, 22 Wend. R. 121 ; And see, post, § 707. Erertson v. Sawyer, 2 Wend. R. 507. 2 Glein v. Rice, 6 Watts, R. ii ; Rob- ' Philips v. i'earce, 5 B. & C. 433. bins V. Kitchen, « ib. 390. 6 Cornish b. Searell, 8 B. & C. 476 • '^ Jaclison «. Rowland, 6 Wend. R. 666 ; 1 Bingh. 38 ; 3 ib. 474 ; Despard u. Wal- Binney v. Chapman, 5 Pick. R. 124. bridge, 15 N. Y. R. 374. ' Johnson v. Carr, 1 Lev. 152. SEC. II.J THE ACTION OP DEBT FOR RENT. 457 plead, to an action of debt for rent, that he had expended the whole amount of rent in repairs after the landlord's refusal to re- pair;^ yet the first position was afterwards fully settled, on the ground that the expenses to which the tenant may have been put, by the landlord's breach of covenant, must be unliquidated dam- ages, and consequently not a proper subject of sei^off.^ But this rule, as we have seen, in treating of the covenant to pay rent, has not been adopted in the State of New York, where the doctrine of a recoupment of damages in all such cases now prevails ; nor has it been rigidly adhered to in England.^ As in a case where the landlord directed the tenant to pay on his account the poor rates assessed upon him, under a promise that the levies should eat out the rent, the court allowed the tenant to set off the rent, as so much money paid to the landlord'' s use.'*' And where a tenant agreed to lay out a certain sum in repairs, to the approval of the lessor, with a distinct agreement that the tenant might retain a given sum out of the first rent for such repairs ; the lessor's ap- proval was held not to be a condition precedent to the retaining of rent by the lessee.^ So it is a good plea to say, that the plaintiff levied the whole amount of the rent claimed, or a certain part of it, by distress and sale ; but it is no answer that he distrained goods to the value of the rent, if, in fact, he has sold them for a less sum. If he has sold them at too low a price, tlie tenant's remedy is by action.^ Any payment a tenant is compelled to make for his land- lord may be made the subject of a plea in this action ; and a pre- vious request and promise to indemnify will be implied in favor of a plaintiff who has been compelled to do that to wlaich the defend- ant was legally liable. Therefore a compulsory payment by a sub- tenant, to the original lessor, of rent due to him from the mediate landlord, in respect of the premises, is considered as a handing- 1 Taylor v. Beal, Cro. Eliz. 222; s. o. "Weigall v. "Waters, 6 Term E. 488 ; How- A tenant cannot set off against the land- let v. Strickland, Cowp. 56. As to the lord's demand for rent, a claim for dam- general rule that unliquidated damages ages which he has sustained from the cannot be the subject of a set-otf, see breach of the latter's agreement to finish Liyingston v. Livingston, supra ; Hepburn or repair the premises. 1 Saund. E. 204 ; v. Hoag, 6 Cow. R. 613 ; Butts v. Collins, 8 .Johns. R. 44 ; Allen v. Pell, 4 Wend. R. 13 "Wend. 139 ; Hackett v. Connett, 2 505. Or to make an erection upon the Edw. R. 73 ; Mead v. Gillett, 19 "Wend, premises. Etheridge v. Osborn, 12 Wend. R. 397 ; Duncan v. Lyon, 3 Johns. Ch. R. R. 399. Or to allow common of pasture. 351. Livingston U.Livingston, 4 Johns. Ch. 287. * See, an^e, § 374. Nor can he set off his claim to have his im- * Roper v. Bumford, 3 Taunt. R. 76. provements paid for at the end of the term. ^ Dallman v. King, 4 Bingh. 105, n. s. Tuttle v.-Tompkins, 2 Wend. R. 407. « Efford v. Burgess, 1 Mood. & R. 23. 2 Clayton v. Kinaston, Ld. Eaym. 420; 39 458 LAW OF LANDLORD AND TENANT. [CHAP. XIII. over, with the landlord's authority, of so much of the rent due to him from the tenant, and in payment of rent ;pro tanto ; and, as such, may be pleaded to the landlord's avowry by way of payment, as contradistinguished from set-off?- § 631. The relation of landlord and tenant creates an implied consent, upon his landlord's part, that the tenant shall appropriate such part of his rent as shall be necessary to indemnify him against prior charges, and that the money so appropriated shall be consid- ered as paid on account of rent. But this implication is liable to be rebutted ; for if the landlord were afterwards to repay the tenant the money paid by him in respect of the charge, he might recover the entire rent eo nomine, without any deduction. In fact, the dif- ference between the two classes of cases lies in the distinction be- tween a, payment and a set-off ; the former may be pleaded to an avowry, though the latter cannot. That is a good payment which is paid as part of the rent itself, in respect of the land ; but a set-off supposes a different demand, arising in a different right.^ Although a defendant may not technically set off unliquidated damages against a demand for rent, so as to have a balance certified in his favor, he may, as we have seen, set up such damages by way of recoupment, for the purpose of extinguishing the plaintiff's de- mand in whole or in part. This he is permitted to do, whether the different parts of the contract are contained in one instrument or in several ; whether one part of the contract be in writing and the other by parol ;^ or the action be founded on a sealed or an tin- sealed instrument. But if the defence, in such case, goes only to some part of the consideration, the defendant cannot plead it spe- 1 Sapsford v. Fletcher, 4 Term E. 511 ; the first count ; and the acceptance of the Taylor v. Zamira, 6 Taunt. 624 ; Eeab v. tender, which adopted the terms and char- McAllister, 8 Wend. 109; Westlake v. acter of it, must be taken to be an admission ] )egraw, 26 Wend. 669 ; Carter v. Carter, by the landlord, that the defendant held 5 Bingh. 406. And see, ante, § 373. the premises mentioned in the second 2 Sickles V. Frost, 15 Wend. R. 559 ; count as tenant to him, during the whole Sapsford v. Fletcher, supra, per Buller, J. period for which the rent was claimed ; In a case where the plaintiff declared in that he received a tender as rent of and the first count for double the yearly value, for tlie same premises, and that it conse- and in the second for use and occupation, quently operated as a waiver of the pen- the defendant pleaded, as to the demand alty. But the court held that the plaintiff in the first count, nil debet ; and as to the was not estopped from taking the money residue, being the amount of the single as part of the larger sum claimed; and rent, a tender, and paid the money into that his going on with the suit showed court, which the plaintiff took out of court, that he did not mean to take it in satisfac- but proceeded to trial. The defendant tion of the lesser sum. Ryal v. Rich, 10 moved for a nonsuit, because the plea of East, R. 48. tender of rent covered the whole period ^ Betterman u. Pierce, 3 HiU (N. Y.), for which the double value was claimed in R. 171. SEC. II.] THE ACTION OF DEBT FOR RENT. 459 cially, but must give notice of it ; though it is otherwise when it goes to the whole consideration.^ § 632. A mortgage made subsequent to a lease amounts to an immediate grant of the reversion ; and tlie mortgagee is entitled to all the remedies for the recovery of rent, which belong to other assignees of the reversion.^ This right, however, is confined to rent accruing subsequently to the assignment. All that has ac- crued before is a mere chose in action, and consequently not assignable. But as against tenants holding under leases made by the mortgagor subsequent to the mortgage, the mortgagee can neither distrain nor sue for rent in any action, since there is neither privity of contract or estate between the parties.^ The Revised Statutes of New York, however, as we have seen, have taken away the right of a mortgagee to obtain possession of the premises or to receive the rent ; and a surrender of possession and payment to him can no longer be pleaded as an eviction to a sub- sequent action of rent by the mortgagor.* § 633. The defendant may also plead a tender of the amount due, in all cases where the duty or sum demanded is certain, or capable of being reduced to a certainty by calculation. It is, therefore, allowed in debt, assumpsit, and covenant, where the breach is the non-payment of money, or the performance of a specific thing ; but not in actions on the case, trespass, or trover, or in any other in which the damages are unliquidated.^ At com- mon law, a tender could not be made after suit brought.^ /But the Revised Statutes of. New York provide, that when any action at 1 Van Epps v. Harrison, 5 ib. 63 ; Bar- claimed, or a certain part of it, by dis- ber V. Rose, ib. 76. Upon an agreement tress and sale. But it is no answer to an to rent a house and lot, out of the rent of action for rent to say, that the plaintiff which was to be deducted any repairs that distrained goods to the value of the rent, may be done to the same, the erection of a if, in fact, he have sold them for a less variety of out-houses on the lot was held sum ; for if he has sold them at too low not to be repairs. Adm'r of Darby p. price, the tenant's remedy is by action. Farrow, 1 McCord, R. 517. Evidence of Efford v. Burgess, 1 Mood. & Ky. 23. a parol agreement outside of a written And the non-payment of rent for a period lease, to make repairs or improvements of twenty, or even twenty -four years, will on the premises, is inadmissible. Mayer not be sufficient to justify a presumption ». MoUer, 1 Hilt. R. 491. Mayor of N.Y., of payment, where circumstances exist &c., d. Price, 5 Sandf R. 542. See fur- tending to excuse the delay in demanding ther, as to the doctrine of recoupment, in rent ; nor, under such circumstances, will the article Covenant to Pay Rent, ante, § a release or conveyance extinguishing the 374 ; Whitbeck v. Skinner, 7 *. 53. rent be presumed. Cole v. Patterson, 26 2 Burden v. Thayer, 3 Mete. 79 ; 4 Wend. R. 456. Kent, Com. 165. ^ Ante, § 123 ; Jackson v. Myers, 11 3 Mayo V. Shattuck, 14 Pick. 533; Wend. R. 537; 2 R. S. 212. McKirden v. Hawley, 16 Johns. R. 290. ^ Bac. Abr. tit. Tender. It is a good plea to say that the plaintiff ^ Cro. Car. 254 ; 8 Cow. R. 88. levied the whole amount of the rent 460 LAW OF LANDLORD AND TENANT. [CHAP. SIIL law shall be commenced for the recovery of a sum certain, or which may be reduced to a certainty by calculation, or for a casual or in- voluntary trespass or injury, the defendant, in any stage of the pro- ceedings, before trial in such cause, or before the damages shall have been assessed, or before jiidgment rendered in an action of debt, may tender to the plaintiff or his attorney any sum of money which the defendant shall conceive sufficient amends for the injury done, for which such action or proceeding was instituted ; or suffi- cient to pay the plaintiff's demand, together with the costs of the action to the time of making such tender. And if it shall appear upon the trial of the cause, or assessment of damages, that the amount so tendered was sufficient to pay the plaintiff's demand, and the costs of suit up to the time of tender, the plaintiff shall not be entitled to recover or collect any interest on such demand from the time of such tender, or any costs incurred subsequent to that time, but shall be liable to the defendant for the costs incurred by him subsequent to such time.^ The plea of tender need not be ac- companied with a payment of the money into court ; but the effect of it is an admission of the plaintiff's cause of action to that extent, and no further.^ § 634. There is a material distinction between the effect of a ten- der in money due upon a contract, and a tender of specific articles. In the former case, though a tender be made and the plaintiff re- fuses the money, yet the tender cannot be pleaded in bar of the action, neither in debt or assumpsit, but in bar of the damages only, that is, of interest and cost ; for the debtor must always pay his debt.^ But the consequence of a tender and refusal, where the arti- cles are cumbrous, and will subject the party tendering to a charge for keeping them, — as cattle, or any other articles requiring ware- house room, which indeed embraces almost every article except money, — is a complete discharge of the contract for delivery, and the party is not bound to hold himself ready, or keep the tender good, as in' case of money. He holds the articles, however, as bailee, at the risk of the person to whom they have been tendered, subject to be demanded of him, or any other person into whose hand they may come ; and, if refused, an action of trover lies for their value.* 1 2 E. S. 457, § 20, 23. This practice ^ 17 Johns. E. 253 ; 5 Cow. R. 248 ; 8 has been essentially modified by the New Johns. Cas. 349; 1 B. & P. 332. York Code of Procedure. * Per Kent, J., 3 Johns. Ch. 249, 448 • 2 Slack V. Brown, 13 Wend. E. 394; 8 Johns. E. 447; 12 ih. 274; 1 Hayw. R. Graham's Practice, 2d edit. 533. 142 ; 13 Wend. 95. As to wliat consti- tutes a good tender, see, ante, § 893. SEC. III.] THE ACTION FOE USE AND OCCUPATION. 461 SECTION III. THE ACTION FOE USE AND OCCUPATION. § 635. At common law, an action for the use and occupation of the premises, upon a lease for years, could not be maintained, either pending or after the expiration of the term ; for a lease was considered to be a real contract, the only remedies upon .which were by distress, or an action of debt on the demise.^ In order to obviate the difficulties which occurred in the recovery of rent, where the demise was not by deed, the statute of 11 Geo. II. c. 19, § 14, authorized a recovery in an action on the case, for the use and occupation of the premises. The Revised Statutes of New York also enact, — Any landlord may recover in an action on the case, a reasonable satisfaction for the use and occupation of any lands and tenements, by any person under any agreement not made by deed ; and if any parol, demise, or other agreement, not being by deed, by which a certain rent is reserved, shall appear in evidence on the trial of any such action, the plaintiff shall not, on that account, be debarred from a recovery, but may make use thereof, as evidence of the amount of the damages to be recovered.^ In this action the landlord recovers not rent, but an equivalent for the rent, that is to say, a reasonable satisfaction for the use and occupation of the pre- mises, which have been held and enjoyed under the demise ; and the rent fixed by the agreement is only used as a medium by which the damages in this form of action shall be ascertained and liqui- dated. This statute is intended to provide an easy remedy in the simple case of an actual occupation, leaving other more complicated cases to their appropriate and ordinary remedy .^ But though the statute specifies an action on the case, which means assumpsit, yet debt for use and occupation also lies, even if there be an express demise, where it is not by deed.* § 636. Although the law will imply a contract to pay rent, from 1 Teatherstonhaugh v. Bradshaw, 1 erts v. Semel, 3 Munr. 253 ; Crouch v. Wend. 185; Cro. Car. 343; Hob. 284; Brilles, 7 J. J. Marshall, 257; Pott v. 1 Eol. Abr. 7 (o). It has been held, how- Lesher, 1 Yeat. 578. ever, in some of the States, that this ao- ^ ]^ jj, g_ 739^ g 26. tiou laid at common law, independent of ' Williams v. Sherman, 7 Wend. R. statute. Green v. Scovill, 4 Day, 228; 109; Naish v. Tatlock, 2 Black. R. 233. Epps V. Cole, 4 Hen. & Munf. 161 ; Rob- * Gibson v. Kirk, 1 Gale & D. 252. 39* 462 LAW OP LANDLORD AND TENANT. [CHAP. SIII. the mere fact of occupation, yet this action lies only where the re- lation of landlord and tenant subsists between the parties founded on agreement express or implied. But no such implication can arise, if there was no tenancy in contemplation between them ; con- sequently, as between the lessor, and an under-tenant of the original lessee, there is neither privity of estate, nor of contract, the lessor cannot recover rent from the under-tenant.^ But in a case where a lease was executed for a year, at a quarterly rent, and the defen- dant who entered under the lessee, at the commencement of the term, and occupied for the whole year, paid the first quarter's rent to the agent of the lessor, and took receipts from him as such agent ; it was held that a jury might infer an agreement to pay rent to the lessor, so as to maintain an action in his name for use and occupar tion during the last quarter of the term.^ If, however, the position of the parties to each other can be referred to any other ground than that of a distinct tenancy, no promise to pay rent can be im- plied ; this action cannot, therefore, be sustained against a person who came in under the plaintiff as purchaser, although he may con- tinue to hold after the contract of sale has fallen through, for rent accruing previous to the breaking-off of the contract.^ And, where the defendant and another person conveyed to the plaintiff an un- divided moiety of several houses, of which they were seized as devisees in trust, but of one of the houses the defendant had long before been in possession, and continued to occupy it after the con- veyance, it was held that such occupation did not of itself entitle the plaintiff to sue for vise and occupation.* § 637. For a similar reason, this action will not lie, after a recov- ery in ejectment, for rent accruing after the day of the demise.^ Nor against a tenant who holds over, after the expiration of his term, where proceedings have been instituted against him to turn 1 Smith V. Stewart, 6 Johns. E. 46 ; 7 lord, assumpsit cannot be maintained for Har. & Johns. 251 ; McFarlan v. Watson, the occupation subsequent to the renun- 3 Comst. R. 286 ; Chambers o. Boss, 1 ciation. Boston v. Binney, 11 Pick. E. 1. Dutcher, E. 293. This action cannot be ^ Bancroft u. WardeU, 13 Johns. E. maintained, unless there is an agreement 489. for the use of the premises express or im- ^ Osgood v. Dewey, 13 Johns. E. 240 ; phed between the plaintiff and defendant. Curtis v. Treat, 21 Maine, E. 525 ; 6 B. & Campbell v. Kenwick, 2 Bradf. E. 80; C. 332; Smith u. Stewart, 6 Johns. E. 46. Hall V. Southmayd, 15 Barb. E. 32 ; Glo- * Tere v. Jones, 13 Mees. & Wels. ver V. Wilson, 2 Barb. E. 264. It will lay 12. Occupancy implies the exclusion of upon an implied permission. Peckham v. every one else from enjoyment. Eedfield Leary, 6. Duer, E. 494; Pierce v. Pierce, v. Utica & Syracuse E. E. Co., 25 Barb. 25 Barb. E. 243. If a tenant at will or E. 54. sufferance renounces the title of his land- ^ Brich v. Wright, 1 Term E. 578. SEC. lil.] THE ACTION FOE USB AND OCCUPATION. 463 him out of possession under the statute ; for such proceeding is in the nature of an action of ejectment, by which the relation of land- lord and tenant is disowned.^ The plaintifPs remedy, in such case, is either by an action of trespass for the mesne profits, or for double rent under the statute.^ The mere bringing an ejectment, however, and laying the demise prior to the accruing of the rent claimed, will not bar this action.^ Yet, if a party is let into possession under a contract of sale which goes off, he is liable in use and occu- pation, at the suit of the vendor, for the period during which he continues in possession, after the contract went off; although he may not be for occupation prior to the rescinding of the contract.* But in no case does it lie, unless the party have the legal estate,^ nor where the title is in dispute, for the court will not try the title in this action, the proper remedy in such latter case is by eject- ment.^ § 638. This action lies not only for the enjoyment of corporeal, but also of incorporeal hereditaments, even though the letting was by parol.'' As for the enjoyment of tolls ; a fishery, or watercourse ; or by the owner of a market for stallage.^ And where the defend- ant had agreed to take of the plaintiff some veins of iron ore for forty years, at a certain rent, engaging to work the veins in certain proportions, and the plaintiff had agreed to grant such lease ; it was held to be, not a mere license, but a right constituting an heredita- ment, and that use and occupation would lie.^ A landlord who has received a note for rent may sue in assumpsit for use and occupa- tion, on delivery of the note at the trial to be cancelled. Or, if he has distrained and sold the goods of the tenant for part of the rent, he may maintain this action for the residue.^" So if a lessee holds over after notice from the landlord, that in case he holds over be- yond the day specified in the notice, he shall pay an increased rent ; the holding-over is an assent to the new rent, and the landlord may recover it in this action .^^ 1 Featherstonhaugli v. Bradshaw, 1 ° Jones v. Eeynolds, 4 A. & E. 805; Wend. R. 134. s. o. 6 N. & M. 441. 2 Clarence v. Marshall, 2 C. & M. 495. » Cornell v. Lamb, 20 Johns. E. 407. 5 Cobb V. Carpenter, 2 Campb. 13, n. A promissory note given and received for * Howard v. Shaw, 8 M. & W". 118; rent does not extinguish the claim for Little V. Pearson, 7 Pick. B. 301. rent, which is a debt of a higher degree 6 Cobb V. Carpenter, 2 Campb. 13, n. than that arising upon a note. Daris v. « Everston v. Sawyer, 2 Wend. R. 507. Gyde, 2 A. & E. 623. And see Tobey v. ' Bird V. Higginson, 4 N. & M. 515 ; 2 Barber, 5 Johns. E. 68 ; Van Eps v. Dil- A. & E. 696. laye, 6 Barb. E. 244 ; Davis v. AUen, 3 8 Mayor of Newport v. Sanders, 3 B. N. Y. E. 168. & Ad. 411 ; 4 B. & C. 8 ; s. c. 6 D. & E. u Loffl, 153. 42. 464 LAW OF LANDLORD AND TENANT. [CHAP. XIII. § 639. Since the statute dispensing with the necessity of an attornment by the tenant, he is liable in this action to the assignee of the reversion, after notice of his title.^ But such assignee cannot recover in this form of action, for an occupation of tlie premises, which took place before the assignment of the reversion to him ; ^ and to an action by the assignee, it is a good defence that the de- fendant paid the rent to the lessor, before notice of the assignment.^ This action may also be maintained by a mortgagee of the rever- sion ; * or by the grantee of an annuity, to whom the lessor has con- veyed the demised premises as security .^ But not by a cestui que trust, where the letting has been by the trustee ; ^ nor by any person claiming under the cestui que trust ; ^ nor by an agent of the lessor.^ It lies, although the plaintiff has parted with the whole of his inter- est to the defendant, if he have reserved a rent, and the defendant has agreed to pay it,^ It will not lie, however, by a person merely claiming the estate, against the occupants, who have never held under him, however good the title of such claimant may be.^'' But an assignee of a lease, who has been recognized as such by the ten- ant, may sue in his own name for rent, although he may have no mterest in the reversion. Thus, where a lessee had assigned the lease without the reversion, and the lessee paid rent to the assignee, the Court of Appeals in New York held, that this created such a privity of contract between the tenant and the assignee, that the latter might sue in his own name for rent subsequently accruing under the lease.^^ § 640. Where the demise is by deed, the lessor must declare specially on the demise, and caiinot recover under the general iTi- dehitatus assumpsit for use and occupation ; and the rule is the same whether the action is against the original lessee, or his as- signee ; although the lessor may recover upon an insimul oomputas- sent, even if the evidence be of an accounting concerning rent secured by deed.^^ But where a tenant occupied under an agree- ment for a lease, under seal, he was held to be chargeable in assumpsit, for use and occupation, because he did not hold under 1 Birch V. Wright, 1 Term E. 378 ; 16 ^ Evans v. Evans, 3 Ad. & El. 132. East, 99 ; 1 Bingh. 147. i Baker v. Gosling, 1 Bingh. N. C. 19. 2 Mortimer v. Freely, 3 M. & "W. 602. " Cripps v. Blank, 9 D. & R. 460. s Birch V. Wright, supra ; Dougl. 282. " Moftat v. Smith, 4 Comst. 126. * Eawson v. Eicke, 7 Ad. & El. 451. i^ -^ggt „_ Cartledge, 5 Hill (N. Y), E. 6 Birch V. Wright, 1 Term R. 378. 488 ; Dungay v. Angove, 2 Ves. Jr. 307 • « Morgell V. Paul, 2 Man. & Ry. 303. Codman v. Jenkins, 14 Mass. R. 93 ; ' Harris v. Boker, 12 Moore, 283. Bliune <^. McClerken, 10 Watts. 380. SEC. III.] THE ACTION FOE USE AND OCCUPATION. 465 the deed, but merely under the agreement.^ And where a lease by deed had expired, and the tenant held over, the landlord was also permitted to recover for the subsequent use and occupation.^ A defendant had occupied certain premises by virtue of a lease under seal containing a covenant for renewal, which covenant, however, was void for uncertainty ; at the expiration of the term, the parties could not agree as to a renewal of the lease, and the tenant held over several years without paying rent ; this action was held main- tainable to recover the rent due after the expiration of the lease.^ But where the defendant entered on the premises under an agree- ment to purchase in fee, and after occupying them several years, refused to pay the purchase-money on a deed being tendered to him, it was decided that the action did not lie, because the relation of landlord and tenant did not exist between them.* § 641. This action will not lie, where the defendant never took possession of the demised premises, either personally or by. his agent ; and if there has been no occupation for any portion of the term, the only remedy is upon the agreement for damages in not taking possession.^ But no continued occupation for any particular length of time need be shown ; possession being once taken, the agreement determines the period to which the liability of the party extends.^ Nor is an actual or personal occupation by the defendant required to support this action ; the constructive possession of an under-tenant or servant being sufficient for this purpose.'' But where a defendant in expectation of a lease by indenture, which he agreed to take from the plaintiff, procured attornments from some of the tenants, and received rents from others, he was held liable 1 Little V. Martin, 3 "Wend. E. 219; Edge u. Strafford, 1 Cr. & J. 391 ; Woolley Gillott V. Rogers, 4 Esp. 59. v. Watling, 7 Car. & Pa. 335, 610; 3 Ad. 2 Harding i'. Crethorn, 1 Esp. E. 57. & El. 659. That this form of action lies, 2 Abeel v. Eadcliffe, 13 Johns. E. 297 ; although the tenant deserts the premises. 15 ib. 505. See Westlake v. Degraw, 25 "Wend. E. * Smith V. Stewart, 6 Johns. E. 46 ; 669 ; 5 Taunt. E. 503. Bancroft v. "Wardwell, 13 Johns. 489; ' "Waring v. King, 8 Mees. & "Wels. Earley v. Thompson, 15 Mass. E. 18 ; 571 ; Bull v. Gibbs, 8 Term R. 327 ; 7 C. Little V. Pearson, 7 Pick. E. 301. & P. 335; Moffat v. Smith, 4 Comst. 126. ^ "Wood V. "Wilcox, 1 Denio, 37 ; Jones "Where it appeared that a third person was V. Eeynolds, 7 Car. & P. 335, 579 ; 5 in fact the occupant, proof that the de- Taunt. 518. The defendant abandoned fendant had paid rent to the plaintiff' dur- the premises, and then plaintiff took pos- ing that occupancy was held to be pre- session and relet them to a third person ; sumptire evidence that the occupant held and it was held that as thereafter the de- under the defendant, and in effect the fendant had not actually occupied, or le- same as an actual occupancy of the defen- gally possessed, the premises, he was not dant. Moffatt v. Smith, supra. In one liable for use and occupation. Beach v. case, where, the defendant agreed to rent Gray, 2 Den. E. 84. a house, and sent in a woman to clean it, •> SuUivan v. Jones, 3 Car. & Pa. 579 ; with workmen to paper one of the rooms, 466 LAW OP LANDLORD AND TENANT. [CHAP. XIII. to the plaintiif for use and occupation.^ So where there is an agreement to demise a house for five years, on a lease to be subse- quently executed, under which the party enters and afterwards refuses to accept a lease, the owner may maintain this action ; for taking the key of a house without a continued occupation is enough for the plaintiff.^ But, if the landlord accepts the under- tenant as his tenant, and treats him as such, by distrainmg upon him for rent, he cannot afterwards sue the original tenant for use and occupation.^ Nor can a husband be sued alone for the use and occupation of premises by his wife, before marriage, as he never was in possession, even constructively.* If there is no express agree- ment between the parties, and the law raises an implied contract for the payment of what the occupation is really worth, from the fact that the premises belonged to the plaintiff, the obligation is co- extensive with, and measured by, the enjoyment ; as soon as the occupation ceases, the implied contract ceases ; and as no express time is limited, the remuneration must necessarily accrue from day to day, and is not computed by the quarter.^ § 642. Nor is the rule different upon a general holding -over, where there has been a tenancy at a specified annual rent, or upon an implied understanding ; ^ or even if there was no express agree- ment as to the amount of rent to be paid ; for an agreement to pay what the premises are fairly worth will be implied, wherever a per- missive holding is established.'' And the tenant is liable if the under-tenant holds over, though against his will ; but he is only liable for the time the premises are held over, and not for the year's there was held to be sufficient evidence Cleaves v. Willoughby, 7 HiU, 88, inti- of occupation to go to the jury. Smith v. mates a doubt whether, under the'New- Farst, 2 Man. & Gr. 84. York statute, a landlord is not limited in i Neald v. Sweind, 2 Cr. & J. 377. in his recovery of rent, to the period of 2 Little V. Martin, 3 Wend. R. 219; actual use and occupation ; in opposition to Grant v. Gill, 2 Whart. 42 ; Hemphill v. the English cases, which adjudge that tho Flynn, 2 Barr, 144. action for use and occupation lies to re- Thomas V. Cook, 2 B. & A. 119; cover the rent of the whole term, although HaU V. Burgess, 5 B. & C. 332. To ren- there has been no actual occupation for der an under-tenant liable to the original the whole time in respect of which the lessor for use and occupation, there must action is brought, considering a mere len-al be some privity of contract between them, possession as sufficient. The suggestfon Such a contract may be implied from the of the learned judge is based upon the dif- recognition by the former of the latter ferent phraseology of the English and as his landlord by the payment of rent. New- York statutes ; but has left the point M'Farlan v. Watson, 3 N. Y. R. 286 ; and open for future adjudication see Jennings v. Alexander, 1 Hilt. R. 154. « 2 Gill & Johns. R. 326 • Bishon v * Richardson v. Hall, 1 B. & B. 50. Howard, 2 B. & C. 100 . ^ S'^o?/"";^''' ?• J-.iu Gibson «.Kirk, ' Hoskins v. Rhodes, 1 Gill & Johns 1 y. a. 86fa. Mr. Justice Beardsley, in a R. 266 ; Stockett v. Watkins 2 ib 326 • very able opinion, deUvered in the case of 3 Conn. R. 303. ' ' ' SEC. III.] THE ACTION FOE TTSB AND OCCUPATION. 467- rent.^ If one of two joint-lessees holds over without the assent of the other, the latter is not liable in this action.^ And where a tenant from year to year, on the expiration of his landlord's title, continues in possession for one quarter, and pays rent for that quarter to the party entitled, but quits at the end of it, the payment is not evidence of a tenancy for more than a quarter.^ Where a tenancy is continued beyond the original term, without any new arrangement, the jury may give the landlord a larger sum than the old rent, if there be circumstances to show that an increased rent was expected by him, and that the understanding was not repudi- ated by the tenant ; * but, in general, the terms of the old tenancy will prevail. Thus an executor of a tenant from year to year, holding over and paying rent, will hold on the terms of the former demise, and be personally liable.^ § 643. This action will also lie against an assignee of the term ; but where a tenant made a general assignment for the benefit of creditors, the lessor was not allowed to sustain this action against his trustees, without proving that they had actually occupied, and that their merely putting persons upon the premises temporarily, to take care of the goods, was not such an occupation.^ If the lessee become bankrupt, the lessor may sue the assignees for use and occupation if they actually occupy ; ^ but not otherwise.^ So the executors or administrators of the lessee are liable as such, in this form of action ; but they cannot be sued in their individual capa- city, unless they have had an actual and beneficial occupation of the demised premises ; ^ and, in that case, the action will lie only against such of them as have so occupied. ^'^ If partners become tenants, they all continue liable until the determination of the term, although one or more of them may have retired from the partnership before that time.^i If there be an agreement between the parties, that the tenant will work the farm upon shares, it is not a lease for which rent is to be paid in produce, and the tenant is not liable to any action for rent, the landlord looks to his interest 1 Ibbs V. Richardson, 1 P. & D. 618. " How v. Kennett, 3 Ad. & El. 659 ; 5 2 Clinsty v. Tancred, 9 M. & W. 438; N. & M. 1. s. c. 11 lb. 316. ' Gibson v. Courthorpe, 1 D. & Ry. 206 ; »' Freemen v. Jury, M. & M. 19 ; "War- Nash v. Tatlock, 2 H. Black. 320. ing V. King, 8 M. & W. 671. ' Clark v. Webb, 1 Cr. M. & R. 29. * Elgar V. Watson, 1 C. & Marsh. 494. ' Remnant v. Brembridge, 2 Moore, 94. 6 Buckworth v. Simpson, 1 C. M. & R. " Nation v. Fozer, 1 Cr. M. & R. 172. 834 11 Christy v. Tancred, 7 Mees. & W 127. 468 LAW OF LANDLORD AND TENANT. [CHAP. XIII. in the crops as his security, and the parties are simply tenants in common of the crops. ^ § 644. As we have before had occasion to obserye, if the premises are occupied for an immoral purpose, with the plaintiiFs knowl- edge, the contract is void. Thus in a case where the plaintiff's wife, who managed the business of the house in letting lodgings, had let certain rooms to the defendant, knowing her to be a prosti- tute, and consented to her receiving visitors there /or the purpose of prostitution ; it was held by the court to be a contract against good morals, and therefore entirely void, and that no action for rent could be maintained on it.^ In another action, however, brought for the use and occupation of certain premises, it was set up as a defence that the defendant was an infant and a prostitute, and had used the premises for the purposes of prostitution ; yet the court held that this was no bar to the action, because both an infant and a prostitute must have lodgings.^ But upon its being further proved that the lodgings were let to the defendant for the purposes of prostitution, and with a knowledge of the facts on the part of the plaintiff, the court decided that no rent could be re- covered,* § 645. Where premises have been rented for a certain term, the landlord may recover the rent accruing after the premises are burnt down, and no longer inhabited by the tenant; for so long as the term continues the landlord cannot enter, even to rebuild, and the tenant must be taken to hold the land.^ But where there has been no express demise, the defendant under the general issue may give in evidence that the premises he occupied were burnt down ; and this will form a good defence as to so much of the rent as accrued after the fire, but not as to the rent due up to that time.^ So where A. made an oral agreement for the purchase of B.'s house, advanced the purchase-money, and took possession ; before A. obtained a deed the house was destroyed by fire, and he thereupon vacated possession of the ground, refused to accept a deed which B. tendered him immediately after the fire, and commenced a suit 1 Hare v. Celey, Cro. Eliz. 143 ; Bra- * Crisp v. Churchill, 1 B. & P. 340 ; 1 dish V. Schenck, 8 Johns. R. 151 ; Bishop R. & M. 251 ; Appleton v. Campbell, 2 C. V. Doty, 1 Verm. R. 87 ; Caswell o. Dis- & P. 347. trich, 15 Wend. R. 379. '" Baker v. Holtzsapifel, 4 Taunt. R. 2 Girardy v. Richardson, 1 Esp. N. P. 45 ; Izon v. Gorton, 7 Scott, 537 ; s. c. 5 C. 13. Bingh. N. C. 501. i* Jennings (^. Throgmorton, R. & M. '^ Packer v. Gibbins, 1 E. & C. L. R. 251. 421. SEC. III.] THE ACTION FOR USB AND OCCUPATION. 469 against B., in which he recovered back the purchase-money; it was held that A., during his occupation of the house, was a teiiant at will to B., and liable to him in an action of assumpsit for use and occupation; but that A., by refusing to accept the deed, deter- mined the tenancy at will, and was no longer liable for use and occupation.^ § 646. This action lies though the premises, whether before or after the letting, are in an unhealthy or otherwise untenantable condition. If, by the terms of the lease, the landlord is to do the necessary repairs, and the tenant quits because the premises are in an untenantable state, he is still liable for use and occupation, though, by the landlord's default, the tenant has not been, and in fact could not be, during the period for which rent is claimed, in the actual beneficial occupation.^ If the inconvenience, whatever it may be, can be readily removed, it should be done, and the dam- ages set up in extinguishment or reduction of the rent, provided the inconvenience is one that comes within the contract of the landlord to remove. But if the tenant enter with knowledge or means of knowledge, of existing circumstances, he can in no case claim such reduction, unless the damage is sustained in consequence of a breach of the landlord's agreement to remove the nuisance.^ And, in such case, though it be ruled on the trial that he is not entitled to show that the premises were uninhabitable, but must bring a cross action to recover his damages, a judgment will not be reversed if it be manifest that, by such decision, he has not been injured.* § 647. This action will also lie against a tenant who quits the premises without any regular determination of the lease.^ And therefore where, in an action for the use and occupation of apart- ments in the plaintiff's house during half a year, it appeared that the rent was claimed in consequence of the defendant's having neglected to give a notice to quit, and the defence set up was, that the plaintiff, after the defendant had quit, put up a bill in the win- dow, and endeavored to let the premises ; Lord Kenyon expressed the opinion, that the defence insisted on would afford no answer to the plaintiff's action ; that it was for the benefit of the defendant 1 Gould V. Thompson, 4 Mete. 224. * Westlake v. Degraw, 25 "Wend. 669. 2 Cleaves u. WiUoughby, 7 Hill (N.Y.), See, ante, § 381, as to when payment of K. 83 ; 12 Mees. & W. 68 ; Surplice v. rent is not excused by nuisance. Farnsworth, 8 Scott, N. R. 307. '' Mallott v. Brayne, 2 Campb. 104 ; 3 Kirkman v. Jervis, 7 Dowl. 678 ; Graham v. Wichelo, 1 C. & M. 188 ; Collins V. Barrow, 1 Mood. & K. 112. Eeeve v. Bird, 1 C. M. & E. 31. 40 470 LAW OF LANDLORD AND TENANT. [CHAP. XIII. that the apartments should be let, nor would he infer, from the circumstance of the landlord's endeavoring to let them, that the contract between the parties was put an end to, and said there must be other circumstances to show it, and not merely an act of so equivocal a kind as the one insisted on ; and as the plaintiff had proved that the defendant took the premises of him, and had paid rent, it was incumbent on the tenant to prove that the tenancy was regularly put an end to, by express evidence to that effect.^ § 648. Where rent is expressly reserved, payable at stated periods, the landlord cannot recover a proportionable part of the rent, for the occupation of his premises, for any portion of time short of such periods ; and, therefore, when a person let out the first and second floors of a certain house for a year, rent payable quarterly, during a current quarter some dispute arose between them, and the tenant, who was a female, told her landlord that she should quit imme- diately ; the landlord answered she might go when she pleased ; she did go, and the landlord took possession of the premises ; it was held that the landlord could neither recover the rent which, by virtue of the original contract, would have become due at the expi- ration of the current quarter, — the relation of landlord and tenant having terminated, — nor rent 'pro raid for the time she actually occtipied the premises for any period short of the quarter.^ So if the landlord accepts another person as his tenant, it amounts to a surrender of the first tenant's term, and he cannot be sued for rent subsequently accruing ; accordingly, where a tenant took certain apartments for a year, left them when the year was about half ex- pired, and the landlord let them out to another person by the week, it was held that he could not recover rent against the first lessee for a subsequent portion of the year, during which the apartments had been unoccupied ; for although a tenancy from year to year, created by parol, is not determined by a parol license to quit in the middle of the quarter, and the tenant's quitting the premises accordingly (the statute of frauds requiring a deed or note in writing, or a surrender by operation of law), yet the lessor, having precluded the defendant from occupying the apartments, by letting them to another, must be taken to have rescinded the agreement, and to have dispensed with the necessity of a surrender .^ And if a land- 1 Eedpath v. Roberts, 5 Esp. 225 ; ^ jjall v. Burgess, 5 B. & C. 333 • s. o Selw. N. P. 1829. 8 D. & R. 67. 8 Walls V. Atcheson, 3 Bingh. R. 462. SEC. III.] THE ACTION FOE USE AND OCCUPATION. 471 lord, in the middle of a quarter, accepts from his tenant the key of the house, upon a verbal agreement, that if the tenant then gives up the possession, the rent should cease ; he cannot recover any thing for subsequent use and occupation, if the tenant in fact no longer occupies the premises.^ § 649. If the rent be entire, that is, so much for the whole prem- ises, and the landlord evict tlie tenant from part of the premises, the tenant may abandon the residue, and in that case he cannot be charged for the occupation of any part ; ^ but if, after an eviction from part, by a title which is paramount to the lessors, or if he is pre- vented from obtaining the whole of the premises, by a person hold- ing a part under a prior lease, executed by the landlord ; he shoiild still continue to occupy the residue, he is chargeable, not on the agreement, but upon a quantum meruit, for the fair value of that portion which he retains.^ If a lease be made to one who underlets to a third person, and during the under-tenancy the original land- lord gives notice to the under-tenant to quit tlie premises, and he does quit accordingly, and the land remains unoccupied for a year, and then the first lessee takes possession again ; the landlord cannot recover rent against him for the year in which it was unoccupied, for such a case amounts to an eviction by the landlord.* We have seen also, that if the defendant has been compelled to leave the premises, in consequence of a nuisance which it was the landlord's duty to re- move, this action cannot be maintained.^ And if a landlord of furnished lodgings, by his misconduct, justifies a tenant in an abrupt departure, during a tenancy limited to a specific period, he cannot recover rent for the whole time agreed on, but is entitled to rent for the time during which there has been an actual occupation.^ But the circumstance of the defendant having left, fearing a distress by the superior landlord, affords no defence to this action ; "^ nor is it a defence that the landlord has distrained goods to the full amount of the rent where he has sold them for less ; because if he has sold them at too low a rate, the tenant's remedy is by action.^ § 650. In this action the plaintiff may resort to the original 1 ■WTiitehead v. Clifford, 5 Taunt. 518. « Kirkman v. Jervis, 7 Dowl. 678. 2 Smith V. Raleigh, 3 Campb. R. 513. ' Rickett v. TuUick, 6 C. & P. 66. 8 TomUnson v. Day, 2 B. & B. 680; ^ Efford v. Burgess, 1 Mood. & R. 23. Lawrence v. French, 25 Wend. 443; 15 An eviction may he proved under the Mass. R. 270 ; Pope v. Biggs, 9 B. & C. general issue, and need not to be pleaded 252 ; Ludwell v. Newman, 6 Tenn. R. 458. specially. Prentice v. EUiott, 7 M. & W. * Burr V. Phelps, 1 Stark. R. 94. 819. 6 Ante, § 380, 381. 472 LAW OF LANDLORD AND TENANT. [CHAP. XIII. agreement, though Yoid under the statute of frauds, for the purpose of ascertaining the amount of rent agreed to be paid.^ But if no rent has been agreed upon, or if the agreement has fallen throiigh, the measure of damages will be the true value of the premises, which should be proved.^ And although the plaintiff has not declared upon the agreement, and claims generally to recover for use and occupation, the defendant is not at liberty to give evidence of the value of the premises occupied, to reduce the recovery below the amount stipulated in such agreement.^ But where a lessee took a farm under an agreement which he never signed, and the terms of which the lessor himself omitted to fulfil, the court held that the jury were not bound to give a verdict for the amount of rent mentioned in the agreement, and might ascertain the annual value of the premises by other evidence independent of the agree- ment, and gave their verdict accordingly.* Interest is recoverable on all contracts for the payment of money from the time when the principal ought to have been paid ; and whenever the su.m to be paid for the occupation of premises, and the times when the pay- ments are to be made ai-e specified, the plaintiff is entitled to recover interest from those periods.^ § 651. The declaration is generally on the indebitatus assumpsit count ; but may be in debt. The venue is always transitory ; ^ and it has been even held to lie, for the use and occupation of lands in another State.'' It must be averred in the declaration that the land was occupied by permission of the plaintiff, or at the request of the defendant.^ It need not, however, state the situation of the premises, or give any other local description of them.^ Nor is it necessary to state the particulars of the demise ; or to describe the premises otherwise than generally, as divers messuages, lands, and tenements, or the like.^" But the mode of holding under the plain- tiff must be described, as whether under himself alone, or as the survivor of another.!^ In an action against the assignees of B., a bankrupt, the declaration stated that the defendants on such a day 1 De Medina v. Poison, Holt, 47. ^ King v. Prazer, 6 East, 348 ; Kirk- 2 Tomliuson v. Day, 2 B. & B. 680; land v. Poinsett, 1 Taunt. 570. s. c. 5 B. Moore, 558. 7 Henwood v. Cheeseman, 3 S. & E. 8 Jewell V. Schroeppel, 4 Cow. R. 566 ; 502 ; 5 Esp. R. 81 ; 5 Taunt. 25. Williams v. Sherman, 7 "Wend. R. 109. ^ Bradley v. Davenport, 6 Conn. R. 1. * Tomlinson v. Day, 2 B. & B. 680. ^ King v. Prazer, 6 East, 848 : 1 Taimt. 5 Williams v. Sherman, 7 Wend. E. 670. 109 ; 4 McCord, R. 59. i» Wilkins v. Wingate, 6 Term R. 62. 11 Israel v. Simmons, 2 Stark. 536. SEC. III.] THE ACTION FOR USE AND OCCUPATION. 473 were indebted to the plaintiff in a certain sum of money for the use and occupation of two houses, before that time occupied, as well by the bankrupt, whose estate therein the defendants afterwards had, as by the defendants, at their special instance and request, for one year then elapsed, and as tenants thereof respectirely, to the plaintiff, and by his permission. The bankrupt occupied the prem- ises during part of the year, under an agreement to pay the said sum of money for them, became bankrupt, and his assignees, tlie defendants, thereupon took possession and continued it for tlie re- mainder of the year. The amount due for that part of the year during which the defendants occupied, was paid into court. The court were of opinion that if the plaintiff could recover at all in this form of action, against one person for the use and occupation of another, it could be only on the ground of that occupation having been permitted, at the defendant's request, and that request must be proved ; that the words " at the special instance and request of the defendants" were, in this case, words of substance, and operative, connecting the occupation of the defendants, for which they were bound to make a satisfaction, with the occupation of B., a stranger, for whose occupation, ^rmf^/aeie at least, the defendants were not liable ; that, in point of fact, it was not at the request of the defendants, that B. had been permitted to occupy ; the defendants had no relation to B. but as his assignees, and that relation did not commence until the close of his occupation ; that relation, there- fore, alone could not have the effect of making them personally liable to answer for his occupation before his bankruptcy. The averment, that he had been permitted to occupy " at the request " of the defendants, was, therefore, substance, and not mere form, and as the plaintiff had failed in the proof of it, he was not entitled to recover from the defendants the rent due for B.'s occupation.^ § 652., It was averred in another declaration, in consideration that the defendants, on the 26th of November, 1801, had become and were tenants of a messuage under a certain yearly rent, the defendants promised to pay the same during the continuance of the tenancy ; that the defendants continued tenants from the time of making the promise hitherto ; that the defendants did not, during the continuance of the tenancy, pay the rent; and that on the 29th September, 1803, half a year's rent was in arrear. The defendants pleaded that they were traders, committed an act of bankruptcy on 1 Nadsh V. Tatlock and others, assignees of Lediard, 2 H. Bl. E. 319. 40* 474 LAW OP LANDLOED AND TENANT. [CHAP. XIII. 2d April, 1803, and that an assignment of their interest in the premises was executed to A. and B. on the 21st May, of the same year, who thereupon entered and occupied the messuage until the rent became due. On demurrer it was held, that the principle determined in Auriol v. Mills^ that a bankrupt lessee, though out of possession, is still liable upon his covenant, to pay rent not due at the time of his bankruptcy, but accruing since, was applicable to every positive agreement to pay rent, whether under seal or not ; that the case referred to did not turn upon any particular effect of a covenant under seal, but on its being the personal agreement of the parties. And although it was objected that if the action was allowed, the consequence wotdd be that there must be an apportionment of rent, yet the court said the landlord had nothing to do in this case with the question of apportionment, for he proceeds against the parties with whom he has made the agreement, and which has been broken.^ § 653. The defendant may in this action, upon the plea of the general issue, give in evidence any thing which proves nothing due ; as the delivery of corn or any other thing in satisfaction,^ or, in fact, any matter which shows that the plaintiff never had cause of action ; or if he had, that matters have subsequently arisen which have avoided or discharged it.* Thus the coverture,^ infancy,^ or duress of the defendant at the time of entering into the contract,'^ may be taken advantage of under the plea of the general issue. So a release;^ accord, and satisfaction, payment;^ or a former recovery for the same cause ;^° and, in general, whatever shows that the plaintiff had no subsisting cause of action at the time when the suit was commenced.il But a tender ,i^ and the statute of limita- tions must be pleaded ; ^^ and evidence of a set-off cannot be given without notice, or plea.^* An eviction before the rent demanded became due is a good defence under the general issue ; and a special plea to this effect would be bad on special demurrer, as amounting to the general issue.^^ If he has been defrauded by the 1 4 Term E. 94. » 2 Johns. E. 346; 4 Esp. "E. 181 ; 2 Boot V. Wilson, 8 East, E. 311. Drake v. Drake, 11 Johns. E. 531. ' Paramore v. Johnson, 1 Ld. Eaym. w McDaniel v. Hughes, 3 East E. 378. 566 ; s. c. 12 Mod. 376. u SiU v. Eoad, 15 Johns. E. 230. * Eoadj;. Sill, 15 Johns. E. 230; Glea- '^ Woloott v. Van Sanford, 17 Johns. son V. Clark, 9 Cow. E. 59. E. 253. * James v. Eowks, 12 Mod. E. 101. w Gould v. Johnson, 2 Ld. Eaym. 838. 6 Hartness v. Thompson, 5 Johns. E. i* Drake v. Drake, supra; 2 E. S. 855 162; 9!'6. 141. § 19. ' Chitty on Plead. 470. ^ Prentice v. ElHot, 5 M. & "W. 606. 8 4 Taunt. 165. SEC. III.] THE ACTION FOR USE AND OCCUPATION. 475 landlord, or evicted from part, and thereupon gives up the residue, it is a complete defence as to the whole ; ^ but if instead of giving up the residue, he retain it, he will be liable to pay for the portion he occupies on the quantum meruit? So the defendant may plead that he assigned his interest in the demised premises to another, and that the plaintiff accepted such other person as tenant in his stead.^ Or that being an undei'-tenant, and in order to protect his own possession, he paid the rent, or a portion of it, to the superior land- lord.* If the landlord has mortgaged his reversion, and the mortgagee have given notice to the tenant to pay the rent to him, this will be a good defence to an action by the landlord for use and occupation ; and if the action be for rent which accrued due before the notice, the defence must be specially pleaded, but if for rent due after the notice, it may be given in evidence under the general issue.^ Bringing an ejectment will not be a bar to an action for use and occupation for rent due before the day of the demjse laid in the declaration in ejectment ; but rent accruing subsequent to that day cannot be recovered in an action for use and occupation.^ In this action, where there has been a tendency at a specified annual rent, and a holding-over, the tenant will be deemed to hold upon the terms under which he entered; but he is not pre- cluded by an agreement to pay a fixed sum for a term less than a year.'' § 654. The tenant is not permitted in this, or any other action, to impeach the lessor's title or right to demise at the time of the lease ; nor can he set up an outstanding title against him. Hence a plea of nil Jiabuit in tenementis cannot be pleaded, even where the decla- ration does not state that the premises belonged to the plaintiff.^ But he may become a purchaser of the reversion or the lease, and, of course, the rent would thereby become extinguished. Therefore, where the tenant purchased the reversion of his landlord at a sher- iff's sale, on an execution against the landlord, it was held that the interest thus acquired by the tenant extended to the whole of the demised premises, and that he might set it up in bar of a recov- ery for rent ; but where it includes only part of the demised prem- 1 Smith V. Kaleigh, 3 Campb. 513; ^ Waddilove u. Barnett, 2Bmgh. N. C. McCarty v. Ely, 4 E. D. Smith, R. 375. 538 ; 8 Mees. & W. 827. 2 Stokes V. Cooper, 3 Camph. 514, n. " Burch v. Wright, 1 Term K. 378 ; per 8 Turner v. Hardey, 9 Mees. & W. 770. BuUer, J. * 4 T. R. 511 ; 1 Smith's Leading ' Evertson v. Sawyer, 2 Wend. R. 507. Cases, 73; Peck v. IngersoU, 7 N. Y. R. ' Lewis v. WaUis, Say. E. 13 ; 1 Wils. 528. K. 314 ; Rennie v. Robinson, 1 Biiigh. 147. 476 LAW OP LANDLOED AND TENANT. [CHAP. XIII. ises, it operates only in diminution of damages, and the tenant may claim an apportionment of the rent.^ § 655. Almost any evidence which shows the relation of landlord and tenant to exist between the parties will support this action. It is not necessary for the plaintiff to prove an express contract with the tenant, when he took possession ; or any particular reservation of rent ; nor that the tenant has once paid rent ; for an under- standing to that effect will be implied, in all cases where a permissive holding is established.^ Even a parol lease, under which no act has been done by the lessee who has constantly repudiated it, but who has, nevertheless, enjoyed the premises, may be treated by the lessor as a subsisting lease, upon which he may recover rent on a count for use and occupation.^ But where the plaintiff, in support of a general comit for use and occupation, offered to prove the acknowledgment of the defendant, that he hired and occupied the premises during the period in question, agreeing to pay therefor a certain sum ; and it appeared that there was, during such period, an outstanding written agreement for a lease of the premises in the hands of the plaintiff, which, through failure of the event on the happening of which it was to take effect, never became operative ; it was held, in the absence of evidence to show that such acknowl- edgment referred to the written agreement, that the evidence offered was inadmissible.* SECTION IV. OP A SUIT IN EQUITY FOE KENT. § 656. Another remedy for the collection of rent is by a suit in equity. Before the statutes enlarging the remedies for rent in arrear, it was often necessary to go into a court of equity, in cases of rent-seek, for suitable redress. These statutes, as we have seen, give the same remedies in cases of rent^seck, as in those of rent ser- vice, or a rent charge. There are still, however, many cases where a resort to a court of equity may be proper, and even necessary ; as 1 NeUis t). Lathrop, 22 Wend. E. 121; ^ 2 Gill & Johns. 326: 6 Ad. & EI Benme u. Robinson, 1 Bingh. E. 147 ; Os- 839 (n). good V. Dewey 13 Johns. E. 240 ; Biiiney s Scott v. Hawsham, 2 McLean, R. 180. «. Chapman, 5 Pick. 124. * BuiU v. Cook, 5 Conn. R. 206; 6 '^ow. 445. SEC. IT.] OF A SUIT IN EQUITY FOR RENT. 477 "where no remedy at law to meet the exigency of the case exists, or, if it exists at all, is found to be very imperfect, inconvenient, or doubtful. Thus, in a case of a rent^seck, where the grantee never had any seizin, and cannot, consequently, recover at law, a court of equity will decree a seizin, and order the rent to be paid.^ Or, if the deeds by which a rent is created are lost, so that it is uncertain what kind of rent it was ; ^ or, if there is such a confusion of boun- daries, that the lands out of which it issues cannot be exactly ascer- tained;^ or any perplexity or uncertainty as to the title, or the extent of the defendant's liability.* So, where the days on which the rent is payable are stated to be uncertain ; ^ or, if a lease of an incorporeal thing is assigned, and the assignee enjoys it, he will be decreed in equity to pay rent, though not bound in law ; and if an assignee of a term rendering rent assigns over, the lessor may collect rent from the first assignee, so long as he held the land, although he may have no remedy at law for those arrears.^ § 657. Where a terre-tenant of lands liable for a renl^charge has suffered the rent to be in arrear, his executor will be compelled in equity to pay the same, although his testator was not personally bound for the rent, which was recoverable only by distress ; for his personal estate has been increased by the non-payment.^ So a cestui que trust of a lease rendering rent will, in equity, be obliged to pay the rent during the time wherein he has taken the profits, if his trustee (the lessee) has become insolvent.^ Although a grantee of a rent cannot have a remedy in equity, merely for the want of a distress ; yet, if the want of such distress be caused by the fraud, or other default of the tenant, he vill be relieved in equity.^ Or if a rent is settled upon a woman by way of jointure, but she has no power of distress, or other remedy at law, payment of the rent will be decreed in equity according to the intent of the conveyance.^** And, if a person is a grantee of an entire rent, issuing out of a 1 Fonbl. on Equity, took i. ch. 3, § 3 ; * Livingston v. Livingston, 4 Johns. Armstrong v. GUchrist, 2 Johns. Cas. 424 ; Ch. E. 287. 10 Johns. R. 587 ; 17 ih. 384. These oh- ^ Holder v. Chambury, 3 P. Wms. 256. servations will not, of course, be under- ^ Com. Dig. Chancery, 4 N. 1, Rent ; stood as applying to those tribunals which 2 Vern. 423 ; 2 Atk. K. 546 ; 1 Bro. Par. have blended powers of law and equity. Cas. 30. 2 Collett V. Jaques, 1 Ch. Ca. 120 ; ' Baton College v. Beauchamp, 1 Cas. Cox V. Foley, 1 Vern. 359. Ch. 121. 3 Duke of Leeds v. New Radnor, 2 * Clavering w. Westley, 3 P. Wms.402. Bro. 338, 518 ; Benson v. Baldwin, 1 Atk. ^ Davy v. Davy, 1 Cas. Ch. 144 ; 3 ib. B. 598 ; North v. Earl Stafford, 3 P. Wms. 91. 148 255. " Mitf Eq. PI. 115; Champernoou v. Gubbs, 2 Vern. E. 382. 478 LAW OP LANDLORD AND TENANT. [CHAP. XIII. manor, and there are no demesne lands on which to distrain, the rent will be decreed in equity .^ Courts of equity hare also extended their aid to cases where bills have been filed for discovery and relief, and the discovery is essential to the plaintiff's relief, the defendant admitting the plaintiff's right to the rent ; for in such case the relief may be consequent upon the discovery, and the court having obtained jurisdiction for the purpose of the discovery will retain it, in order to carry out the relief.^ Another case occurs, where an apportionment of rents among a variety of parties, may be re- quired, in order to obtain complete justice between them.^ So where there are several persons claiming the same rent of a tenant, being in privity of contract or of tenure, he may file a bill of interpleader to compel them to ascertain to whom it rightfully belongs. As in the cases of a mortgagor and mortgagee, trustee and cestui que trust ; or where the estate is settled to the separate use of a married woman, of which the tenant has notice, and the husband has been in the receipt of the rent ; or in any similar case, where the tenant does not dispute the landlord's title, but puts himself on the mere uncertainty of the person to wliom the rent is payable.* But if a mere stranger sets up a claim to the rent by a title paramount, he is not in privity of contract or of tenure, and the tenant owes him no debt or duty, and is not consequently entitled to a bill of inter- pleader.^ § 658. Where there are mutual accounts between a landlord and tenant, extending over a number of years, with stipulations in the lease requiring expenditures on one side and allowances on the other, and any of such claims are controverted, a court of equity is often necessary, and always proper, to adjust the rights of the respec- tive parties.^ But it does not appear to be necessary that there should be mutual accounts between the parties, in order to give jurisdiction to this court ; for it will take cognizance of a case where the accounts are to be examined on one side only, and a discovery is wanted in aid of the account.' So where a recovery is had in 1 Duke of Leeds v. Powell, 1 Ves. E. ^2 Story, Eq. Jur. § 812 ; Drnigey v. 171. AngoTe, 2 Ves. Jr. 304, 310 ; 13 Ves. 383. 2 Story on Eq. PI. § 311, &c. ; Living- « Porter v. Spencer, 2 Johns. Ch. K. ston V. Livingston, supra. 171 ; Hawley v. Cramer, 4 Cow. E. 727 ; 3 North V. Earl Staflford, supra ; 1 Atk. 2 Johns. Cas. 424 ; 7 East, E. 353 ; O'Con- E. 598. nor v. Spaight, 1 Sch. & Lef. 305. * Crawley v. Thornton, 7 Sim. E. 391 ; ' Post v. Kimherly, 9 Johns. E. 470, s. c. 2 Mylne & Cr. 1 ; Badeau v. Tylee, 493 ; Barker v. Dacie, 6 Ves. 687 ; 1 Y. & 1 Sandf. E. 270. Jer. 574 ; 4 Madd. E. 374. SEC. IV.] OP A SUIT IN EQUITY FOR RENT. 479 ejectment, and the plaintiff is afterwards prevented from enforc- ing his judgment, by an injunction on a bill filed by the tenant, who dies before the bill is finally disposed of ; in such case, the remedy at law by an action of trespass for mesne profits is gone by the death of the tenant, since actions of tort do not survive at law ; but a court of equity will entertain a bill for an account of mesne profits, in favor of the plaintiff in ejectment, against the personal represen- tatives of the tenant ; because it would be inequitable that his estate should receive the benefits and profits of the property of another person.-*^ § 659. Mr. Justice Story, in his admirable treatise on Equity Jurisprudence, illustrates the beneficial effect of this jurisdiction in equity, by reference to the case of an under-tenant, who, although he is liable to be distrained for rent during his possession, is not liable to be sued for rent on the covenants of the lease, there being no privity of contract between him and the lessor. But if the les- see becomes insolvent, and unable to pay the rent, the under- tenant will not be permitted to enjoy the possession and profits of the estate without accounting for the rent to the original lessor. And although he has no remedy at law, a court of equity will relieve the lessor, and direct a payment of the rent to him, upon a bill making the original lessee and the under-tenant parties ; for if the original lessee were compelled to pay the rent, he would have a remedy over against the under-tenant. And in equity the rent seems to be a trust, or charge upon the estate ; and the lessee is bound, at least in conscience, not to take the profits without a due discharge of the rents out of them.^ But equity will not grant a remedy beyond what, by analogy to the law, ought to be granted. As if a rent be charged on land only, the party who comes into possession of it will not be personally charged with its payment, unless there be some fraud on his part, to remove the stock, or he do some other thing to evade the right of distress.^ Nor will a man be relieved, if he becomes remediless, at common law, by his own negligence ; as if he loses his deed, unless it appears that it was once in his custody and he has been deprived of it by some casualty or misfortune ; or if he destroys his rem- 1 Bp. of Winchester v. Knight, IP. ^ Thorndike v. AUington, 1 Gas. Ch. Wms. 407 : 1 Madd. R. 116. 79 ; Palmer v. Whettenbal, I Cas. Ch. 2 Fonbl. Eq. B. 1, c. 5, § 5; Goddard 184 ; 1 Ponbl. Eq. B. 1, c. 3, § 3. V. Keate, 1 Vern. 27 ; 1 Story, Eq. Juris. §687. 480 LAW OP LANDLOKD AND TENANT. [CHAP. XIII. edy of distress, and cannot have debt for the arrears, it being due out of a freehold. Neither will it relieve him in cases proper for law, — against his mispleading, or where there is a neglect and want of a plea, or if no proper plea was put in, — for it was his own fault.i § 660. Equity will not relieve for mesne profits, unless in case of a trust, or an infant, where no entry was made by the person enti- tled to the mesne profits.^ And, in decreeing an account of mesne profits, where the plaintiff has been prevented from asserting his title by infancy, a trust, or fraud, it will direct such account to be taken from the time the plaintiff's title accrued ; until special cir- cumstances require that such account should commence from the time of entry, or of filing the bill.^ But it is said that, in taking an account of rents and profits, even in the most favored cases, interest is seldom allowed, especially if the sum be small or uncer- tain.* The cases decreeing an account of rents and profits, where the legal title is not previously established, proceed upon that resj)ect which, in justice, is due to the interest of persons, who, by fraud, infancy, or otherwise, have been prevented from pursuing their legal rights. But it must not be inferred from the anxiety of courts to protect such rights, that they will at any period, or under any circumstances, exercise such indulgence ; for if an infant neglect to enter within six years after he comes of age, he is as much bound, by the statute of limitations, from bringing a bill for an account of mesne profits, as he is from an action of account at common law.^ So if there be a verdict at law against an infant's title, a court of equity will not direct an account of mesne profits, but will merely entertain the bill for the purpose of giving the infant an opportunity to establish his title at law.^ But if the plaintiff has been kept out of possession by fraud, equity will inter- fere at any distance of time ; since no length of time will bar a fraud, of which the party affected by it was not apprised.'^ "■ 1 Fonbl. Eq. supra ; Blackball v. E. 97 ; Batton v. Earnly, 2 P. Wms. 163 ; Coombes, 2 P. Wms. 70 ; 2 Vern. R. 525. 2 Atk. R. 211 ; 1 Ves. Jr. 451. 2 Owenw.Aprice, 1 Ch. R. 17; 2 Vern. ^ Lockley v. Lockley, Pre. Ch. 518; R. 724; 1 Atk. R. 524; 1 Story, Eq. Davey v. Davey, 1 Ch. Cas. 144; 1 P. § 689. Wms. 444. 3 Dormer v. Fortescue, 3 Atk. R. 130 ; "^ Earl of Newbergh v. Bickerstaff. 1 2 P. Wms. 643. Vern. R. 295. * Eerrers v. Ferrers, Forest, 2; 1 Ch. ' Cotti-ell v. Purchase, Forrest, 63. SEC. v.] THE ACTION OF COVENANT. 481 SECTION V. THE ACTION OP COVENANT. § 661. The action of covenant is a remedy to recover damages for the breacli of a covenant or agreement under seal, whether such covenant is express or implied, or is contained in a deed-poll or indenture.^ It is the appropriate remedy, wherever the liability is created by an agreement under seal ; but if the law creates the liability independent of the covenant, an action on the case may also be maintained.^ It is the usual remedy on leases at the suit of the lessee, his executor, or assignee, against the lessor, for the breach of a covenant for quiet enjoyment, and the like ; ^ and by the lessor and his assigns against the lessee and his assigns, upon the various covenants usually entered into by him, and which have been treated of in a former part of this work. It is also a concur- rent remedy with debt, for the recovery of any money demand, where there is an express or implied contract contained in a deed.* § 662. Where the demand is for rent, or other liquidated sum, the lessor may proceed either in debt or covenant against the lessee, unless he has accepted the assignee as his tenant ; but after an assignment the lessee is only liable in covenant, and then only upon his express covenant, and not upon a covenant in law.^ A lessor may even bring covenant, after his re-entry for non-payment of rent, which accrued previous to the re-entry.^ But if there has been an eviction from part of the land, the lessee cannot be sued in covenant, but only in debt, for his liability arises on his personal covenant, which cannot be apportioned.^ At common law, upon the death of a lessor seized in fee, his heir might sue for a subse- quent breach of a covenant running with the land, though not 1 Gale V. Nixon, 6 Cow. R. 445 ; 8 ib. upon it, although the lessee may have en- 36 ; 1 Bingh. 433. tered and enjoyed the possession. Trus- 2 Lucky V. Eousee, 1 Marsh. E. 295. tees, &c., u. Spencer, 7 Ham. (Ohio) R. 3 Spencer's Case, 5 Co. 16, b; Cro. 151. Car. 221 ; 12 Mod. R. 371 ; Cro. Eliz. 553. ^ March v. Freeman, 3 Lev. 383, 429 ; * March v. Freeman, 3 Lev. 383 ; By- 1 Saund. R. 241, n. 5 ; 1 Term R. 92 ; rom V. Johnson, 8 Term R. 410 ; 6 Taunt. Cro. Jac. 523. R. 356. Where a lease has been executed ^ Hartshorne v. Watson, 5 Scott, R. 506. by the lessor only, covenant will not lie ' 2 East, R. 375. 41 482 LAW OF LANDLORD AND TENANT. [CHAP. XIIL named in the lease ; ^ but none could support an action of covenant, or take advantage of a condition in the deed, except such as were parties or privies thereto ; grantees of the reversion or of a rent were consequently excluded. But, as we have seen, the statutes now give the assignee of a reversion the same remedies against the lessee, his assignee, or personal representative, upon his covenants, as the lessor had at common law ; and such assignee is in like man- ner liable to the same actions for a breach of covenant as the lessor was.^ § 663. An action of covenant is the peculiar remedy for the breach of a covenant where the damages are unliquidated, and depend in amount on the opinion of a jury.^ And it is more advis- able to proceed in covenant on a lease for general damages, than to declare in debt for a penalty, securing the performance of such covenant ; because if the party elects to proceed for the penalty, he is precluded from afterwards suing for general damages, and he cannot, in case of further breaches, recover more than the amount of the penalty ; but if he proceeds in covenant for every repeated breach, he may ultimately recover damages beyond the amount of the penalty. So where rent is due upon a lease, and there has been another breach, — as for not repairing, ■ — ■ for which the plain- tiif claims unliquidated damages, covenant is preferable to debt, because the former action will embrace both causes of action, and damages for the whole demand may be recovered. Where, however, only a specific sum is sought to be recovered, debt is preferable to covenant ; because, in case of judgment by default, the judgment is final in the first instance, unless it be for a penalty, in which case, as we shall see presently, the damages must be assessed under the ■ statute. Where a lease has been assigned by a deed-poll, subject to the covenants, and the assignee break them, the lessor's remedy is assumpsit; as the assignee, in such case, does not execute the deed.* And if the breach of covenant amounts to a tort, the party has an election to proceed by action of covenant, or on the case for the tort, as against a lessee, either during his term or afterwards, for waste .^ 1 1 Saund. R 241 c. 247 ; 1 M. & S. 573 ; 3 Campb. 549, n. a ; 2 Ante, p. 308 ; Bac. Abr. Covenant, Smith v. Stewart, 6 Johns R 48 E. 6; Somerville v. Stevenson, 3 Stew. * 8 D. & R. 368; s. c. 5 B. & C 589- K. 271; 5 East, 313. Trustees v. Spencer, 7 Ham. (Ohio) R 3 Richards v. liiUam, 10 Mass. R. 248, 151. ^ '' 5 2 Black. R. 848, 1111. SEC. V.J THE ACTION OF COVENANT. 483 § 664. This action lies only in favor of a person who is party to the covenant ; in the name of the covenantee, who holds the legal interest, and not of the person who is only beneficially interested ; nor can such third person be joined in the action.^ And, there- fore, where an attorney authorized by a landlord in writing to execiite a lease on his behalf, signed and sealed it in his own name, but the covenants by the lessee were with the landlord by name ; it was held that the landlord could not sue upon such cove- nants.^ Where there are several covenantees, they must join if their interest is joint, although the covenant be several.^ But if their interests are several each may sue, although the covenant be joint.^ If one of several joint covenantees be dead, the survivor must sue and aver the death in his declaration ; ^ or if one named in the indenture omitted to seal it, this must be averred.^ § 665. Tenants in common of a reversion may maintain cove- nant against the assignee of the term for rent in arrear, although it should appear that, at the time of suit brought, the reversion was out of the plaintiffs, they having granted it over after the rent became due.' For arrears of rent due, or for breaches of covenant (even on covenants running with the land), prior to the assign- ment of the reversion, the action must be brought in the name of the assignor, and not of the assignee, as a chose in action cannot be assigned at law ; ^ and the assignor or lessor cannot, after a grant of the reversion, sue for breaches of covenant subsequently committed, or for rent. subsequently due, as the right of action is in the assignee.^ But the assignor may, after assignment, sue for rent due before, as by the assignment it is severed from the inheri- tance, and does not pass to the assignee ;i'' and though the assignee of the reversion cannot sue for breaches of covenant, which were prior to the assignment, yet he may sue for any continuance of the breach after the assignment, as such continuance furnishes a fresh cause of action.^^ The defendant must have ezecuted the covenant ; 1 Wolfe V. Washburn, 6 Cow. R. 201 ; ^ Scott v. Goodwin, 1 Bos. & Pul. 67. Jenkins v. Morton, 3 Monroe (Ky.), R. ^ Vernon w. Jeffreys, Str. 1146. 28; Strohecker v. Grant, 16 Serg. & ' Midgley v. Lovelace, Garth. 289; Rawle, 237 ; Lord Southampton D. Brown, 12 Madd. 45. 6 B. & C. 718 ; Smith v. Emery, 7 Halst. « Cro. Ehz. 863 ; 4 M. & S. 56 ; 8 53 ; Howe & How, 1 N. Hamp. 49. Taunt. 227 ; 7 Sim. 149. 2 Berkley v. Hardy, 5 B. & C. 355. " Kane v. Folger, 14 Johns. R. 89 ; 3 8 Montague v. Smith, 13 Mass. R. 405 Ecclestone v. Clispham, 1 Saund. R. 153 Anderson v. Martindale, 1 East, R. 497 Lev. 154; 3 Term R. 394; 1 Saund. 241, d. w Flight V. Bentley, 1 Sim. R. 149. Petrie v. Bury, 3 Barn. & Cress. 353. " Masoal's Case, Mod. 242 ; 1 Leon. 62. * Slingsby's Case, 5 Rep. 19; James v. Emery, 8 Taunt, 245 ; 3 ib. 87. 484 LAW OP LANDLORD AND TENANT. [CHAP. XIII. but, as to a deed-poll, it is not essential that the plaintiif should have signed, as his assent to the contract will be presumed ; ^ although it is otherwise of a deed inter partes? The lessee is liable, although he did not seal a counterpart of the lease, for his acceptance of the demise is equivalent to an express covenant ; ^ so if a lease be made to A. and B., and A. only execute it, but B. agree thereto, he may be sued jointly with A., upon a covenant running with the land.* But an assignee of the reversion cannot maintain this action on the covenants in the lease if the lessor has not executed it; because in that case no reversion vests in the assignee, to which the covenants may attach.^ § 666. We have observed, that covenants which run with the land will descend to the heir of the covenantee, though he is not named in the lease, who may sue for any fresh breach thereof, if entitled to the reversion ; ^ as on a covenant to repair, though the premises were out of repair during the lifetime of the ancestor, and con- tinued so afterwards.'' But if the reversion be of a mere chattel interest, or for breaches in the lifetime of the testator or intestate, the action must be brought by the executor or administrator. And upon all personal or collateral covenants, not running with the land, for breaches both before and after the death of the cove- nantee, any action after his death must be by the executor or administrator. Thus, where an eviction duriag the lifetime of the testator was alleged as the breach of a covenant for quiet enjoy- ment ; it was resolved by the court, that the eviction being to the testator during his lifetime, he could not then have an heir or assignee of this land, and, therefore, the damages belonged, not to the heir, but to the executor, though not named in the covenant, for he represented the person of the testator .^ This decision has been the basis of several decisions in the United States, where, in an action by heirs for a breach of covenants of seizin, it was held that the right of action does not descend to the heirs, but to the personal representative; for that the covenant is not connected with the estate, because, as no estate passed by deed to the ances- 1 Shep. Touch. 162 ; Caswell v. Lucas, 6 Cardwell v. Lucas, supra ■ Cooch v 2 M. & W. Ill ; Com. Dig. Corenaut, A. Goodman, 2 Gale & D. 159. 2 Ante, p. 176. 6 Lougher v. Williams, 2 Lev. 92 • 8 Cro. Jac, 399, 521 ; Com. Dig. Cove- Skin. 305. ' nant, A. 1. Except in New Yorlc. ' Vivian v. Campion, Salk. 141 • Doe * Co. Lit. 231, a ; 2 Rol. 63. But see v. Kogers, 2 Nev. & Mann. 550 TaU V. Nixon, 5 Cow. R. 445. 8 L„cy „ Lavington, 2 Lev 26 ■ 1 Vent. 175. ' SEC. v.] THE ACTION OP COVENANT. 485 tor, and none descended to the heirs, the right of the ancestor is a mere I'ight of action for a breach of covenant in his hfetime, which, upon his death, belongs exclusively to the personal representative, and the damages recovered are assets in his hands.^ A lessor can- not sue for breaches of covenant accruing after he has parted with his reversion, for the right of action has passed to the assignee of the reversion.^ So the executor of an executor is entitled to the benefit of a covenant made with the first testator and his assigns, for he is his assignee in law ; the word assignee comprehending the assignee of an assignee, as well as the assignee of an executor of the assignee.^ But covenant does not lie by an assignee for a breach before his time.* § 667. The covenants of seizin and against encumbrances, are personal covenants not rimning with the land, broken immediately on the delivery of the deed if false, and, therefore, become choses in action, which are not assignable.^ If a grantee of land assign by deed of warranty, he may sue on covenants running with the land, although the breach was subsequent to the assignment ; but it is otherwise if he assigns by a quitclaim deed.^ The rule is, that if the nature of the assignment is such that the assignor is bound to indemnify the assignee against the covenants, he may sue, but not without ; for it is founded on the principle, that no man can maintain an action to recover damages who has sustained , no dam- age ; and the plaintiff must aver in his declaration that he is answerable to the assignee, on account of the eviction stated.'^ § 668. Where there are several covenantors, they must be all joined as defendants where the covenant is joint and not several ; but, if they covenant jointly and severally, they may either be joined as defendants or sued separately, at the option of the cove- nantee.^ If the action be brought upon a covenant merely implied from a demise, it must be brought against that party only, who in law is deemed to have demised, although others may have joined 1 Hamilton v. "Wilson, 4 Johns. R. 72; * Greenley v. Wilcocks, 2 Johns. R. 1 ; Bennet v. Irwin, 3 ib. 329 ; Mitchell v. Lewes v. Ridge, Cro. EUz. 863. Warner, 5 Conn. E. 497, 504 ; Davis v. ^ Mitchell v. Warner, 5 Conn. E. 497 ; Lyman, 6 ib. 254 ; Marston v. Hobbs, 2 Hamilton v. Wilson, 4 Johns. R. 72. Mass. R. 439; Chapman v. Holmes, 5 ^ Kane v. Sanger, 14 Johns. R. 89; Halst. R. 20 ; Binney v. Hann, 3 Marsh. WiUiams v. Wetherby, 1 Aik. 233. R. 824. ' Beckford v. Page, 2 Mass. E. 455 ; 2 1 Saund. R. 241, d. Niles v. Sawtell, 7 Mass. R. 444. 8 Chapman «. Dalton, Plowd. 284; » Thomas v. Pyke, 4 Bibb, R. 418; Spencer's Case, 5 Rep. 17, a. Enys v. Donithorne, Burr. 1190 ; 8 Mod. 41* R. 166 ; 5 Term R. 522. 486 LAW OF LANDLOKD AND TENANT. [CHAP. 2III. in the lease by wav of confirmation.^ On a joint covenant by two, if one die, the survivor only can be sued at law ;^ and if both die, the representative of the survivor.^ If the covenant is joint, and is broken by the tort of one of the covenantors, the other covenantor cannot be charged with this breach, but the covenant shall, for this purpose, be taken as several, and the wrongdoer alone sued.* Bat a covenantor cannot, by adopting an act, which he did not previ- ously direct, make himself liable as for a breach of covenant.^ This action will lie against the heir on a covenant by his ancestor for himself and his heirs ; but the plaintiff must aver that they were expressly bound by the deed ; ^ and if the heir has no lands by descent, he may plead it in defence of the action.'' § 669. Executors and administrators are bound by the covenants of their testator or intestate, although not named ;^ unless the covenants are such as in their nature determine by the death of the covenantor, or are to be performed by him personally.^ And, if in possession, they may be sued as assignees, for they are assignees in law, of the interests of the termor .^° But for a breach committed in the time of the testator, the judgment must be de bonis testatoris ; for it is the covenant of the testator which binds the executors as representing liim, and, therefore, he must be sued in that name.^ An agent, attorney, executor, administrator, or trustee, who covenants in his own name, although he describes himself as agent, attorney, executor, &c., is personally liable on his covenant ; for the addition to his name is merely descriptive, and he can only bind his principal by making the covenant in the name of such principal.^ We have before seen to what extent the assignee of the lessee is liable upon covenants, depending in cases where the assignee is not named, on the privity of estate which subsists between the lessor and the lessee and his assigns, in respect to the reversion.^^ But this is a liability which attaches only to the assignee of a legal estate, and not to the devisee of an 1 Smith V. Pocklington, 1 Cr. & J. 445. v. Cooke, 1 Wash. E. 306 ; Harrison v. 2 Bundy v. Williams, 1 Eoot, R. 543. Samson, 2 ih. 155. 3 Ayer v. Wilson, 2 Rep. Con. Ct. 819. " Hyde v. Dean, Cro. Eliz. 558 ; Town- * Coleman v. Sherwin, Carth. 97 ; 1 send v. Morris, 6 Cow. R. 123. Salk. 187 ; Show. 79. lo 1 Ld. Raym. 453 ; Montague v. Smith, 6 Griffith V. Broome, 6 Term R. 66. 13 Mass. E. 405. 8 Lawrence v. Buckman, 3 Bihb, E. 23. u Collins v. Throughgood, Hob. 188. 7 Giflford ;;. Young, Lutw. 287 ; Dyke i^ Duvall v. Graig, 2 Wheat. R. 45 ; !). Sweeting, Willes, 585. Thayer v. WendeU, 1 GaUis. R. 37 ; Stone * Executors of Van Rensselaer v. Exe- «. Wood, 7 Cow. 453 ; 1 Greenl. 231. cutors of Hunter, 2 Johns. Car. 17 ; Lee i^ Ante, p. 311. SEC. v.] THE ACTION OF COVENANT. 487 equity of redemption, which only amounts to an assignment of an equitable interest, not including the whole legal estate.^ § 670. The rules relating to the venue in the action of debt, heretofore noticed when treating of that action, are applicable to the action of covenant, and need not be repeated here. The decla- ration must state that the contract was under seal;^ it should also make profert thereof, or show some excuse for the omission.^ Only so much of the deed of covenant should be set forth as is essential to the caiise of action, and each may be stated according to the legal effect, though it is usual to declare in the words of the deed ; * and the breach may negative the condition generally, or according to its legal effect.^ Several breaches may be assigned at common law, and damages, being the object of the action, should be laid sufficient to cover the real amount.^ For non-payment of rent, it is sufficient to allege that the plaintiff on such a day and year and at such a place, by a certain indenture made between himself of the one part and the defendant of the other (which the defendant brings here into coiirt), demised to the defendant " cer- tain premises particularly mentioned and described in the said indenture," (instead of setting out the parcels), except as is therein excepted, to hold the same to the defendant, except, &c., "/or a certain sum therein mentioned and still unexph-ed" yielding the rent, &c., payable, &c., and then state the covenant for payment of the rent, the entry of the defendant, and the breach in not paying so much rent due. Or, if the action be for the breach of any other covenant, the plaintiff need only state " at a certain rent payable by the defendant to the plaintiff, as in the said indenture is men- tioned," and then set forth those covenants and the breach of them.' 1 The Mayor, &c. of Carlisle v. Bla- with such other parts as may qualify mier & Lyson, 8 East, R. 487. those necessary parts, — such, for in- 2 "Van Santvort v. Sandford, 12 Johns, stance, as contain conditions precedent or K. 197; 2 Ld. Raym. 1536. the like, — and to state no more of the s Cutts V. United States, 1 GaUis. R. corenants than those on which breaches 69 ; 3 Term R. 151. are assigned. * Moore v. White, 6 Littell, 151 ; Ma- ' 1 Wme. Saund. 233, a. Implied co- con V. Crump, 1 CaU, R. 575 ; 4 Hen. & venants may he declared on, as if they Munf. 82. were expressed in the lease, for such is s Marston v. Hobby, 2 Mass. R. 433 ; the effect of the lease. Grannis v. Clark, 14 Johns. 248. 8 Cow. R. 36. Where the plaintiff de- * Cowp. R. 565 ; Com. Rep. 146 ; Doug, clares upon a demise by himself, he is not 667 ; 3 Term R. 307. The true way of obliged to set out any title to the lands declaring upon a deed of demise is to set demised, but may begin his declaration out that part of the lease only which is with stating that " whereas by a certain necessary to entitle the plaintiff to recover, indenture, &c., he demised, &o." But in an 488 LAW OP LANDLORD AND TENANT. [CHAP. XIII. § 671. We have seen, that a covenantor may require a bond as additional security for the performance of covenants. Between covenants in general, and covenants secured by a penalty or for- feiture, there is this difference : in the latter case the obligee has his election, to bring an action of debt for the penalty (after which he cannot resort to the covenant, because the penalty is a satisfac- tion for the whole) ; ^ or if he does not choose to go for the pen- alty, he may proceed upon the covenant, and recover more or less of the penalty toties quoties? The practice of taking a bond for performance of covenants has some advantages ; for, on a breach of covenant the bond becomes absolute, and the penalty an imme- diate debt, and, consequently, confers on the obligee, through the medium of the statute, the power of attaching the lands in the hands of a devisee, for satisfaction in damages for the covenant broken. Where a lessor takes a bond of this description, he will generally find it more advantageous to sue on the covenants con- tained in the lease for general damages, than to proceed on the bond for the penalty ; because, by adopting the latter course, he is precluded from afterwards suing on his covenant ; and as he can never recover on the bond an amount exceeding the penalty, he may be ultimately left on future breaches, without the means of redress ; whereas, he may proceed on his covenant for breaches toties quoties ; and may recover damages far exceeding the amount of the penalty.^ § 672. The inconveniences attending bonds of this nature, and the hardship of enforcing payment of the whole penalty, however disproportioned to the actual damage sustained by the obligee, was at one time seriously felt ; although a court of equity might afford relief by preventing the collection of more than was sufficient to make full compensation for the damage ; and gave rise to the stat. of 8 & 9 Will. III. c. 11, from which the Revised Statutes of New York have been derived. It enacts that, " When an action is brought action by an assignee of the reversion, he ther is such averment necessary in an must set out the title of the lessor to the action of covenant by the assignee of tlie premises, that it may appear he had such reversion, to whom the privity of contract an estate in the reversion as might be is transferred by the statute. Ld. Eaym. legally assigned to the plaintiflT. And, 170; Walker v. Reeves, Doug. 461, n. 1. ' although the entry of the lessor into the i Bird v. Randall, 3 Burr. 134:5 ; s. c. demised premises is usually averred, yet 1 W. Bl. 873, 387. such averment is unnecessary ; for he is ^ Lowe i/. Peers, 4 Burr. 2228 ; s. c. liable in debt or covenant for rent, by vir- Wilm. 364. tue of the contract, if he has not entered ; » Piatt on Covenants, 548; Adams u. and so is the assignee of the lessee. JSfei- Essex, 1 Bibb, E. 169. SEC. v.] THE ACTION OP COVENANT. 489 for a penal sum, for the non-performance of any covenant or writ- ten agreement, the plaintiif in his declaration shall assign the spe- cific breaches for which the action is brought. Upon the trial of such action, if the jiiry find that any such assignment of breaches is true, and that the plaintiff should recover damages therefor, they shall assess such damages, and specify the amount thereof in their verdict, in addition to their finding upon any other question of fact submitted to them. Judgment is to be entered for the penalty in the usvial form of an action of debt, and execution issue for the damages so found. The judgment is directed to stand as security for any damages that may thereafter be sustained by the non-per- formance of any other covenant or written agreement, the perform- ance of which was secured by such penal sum. Whenever further •breaches occur, a scire facias issues upon such judgment, suggest- ing such breaches against the defendant and all parties bound thereby, and commanding that they be siimmoned to show cause why execution should not be had upon such judgment, for the amount of damages sustained by such further arrears." ^ § 673. Still, however, the question may arise, whether the sum fixed is to be considered in the nature of a penalty or as liquidated damages. If a penalty, and the lessor proceeds, upon breach of the covenant, to collect it at law, equity will interfere, direct an issue to ascertain the amount of damages, and compel the lessor to take only so much as will compensate him for tire breach of the cove- nant. As if the tenant covenant, under a certain penalty, not to plough certain lands, the lessor will not be allowed to recover more than the actual damages he may sustain if the tenant does plough.^ Yet if the act to be done is single, as to pay a certain additional sum for every acre converted into tillage, such sum may be recovered as liquidated damages.^ But an agreement to per- form certain work by a limited time, under a certain penalty, is not to be taken as liquidated damages which the party is to pay for the breach of his covenant, but is in the nature of a penalty.^ And the court will look into extrinsic circumstances, for the purpose of determining whether the sum mentioned is intended for a penalty or as liquidated damages.^ The statute is calculated to protect 1 2 R. R. 378, § 6-15. * Taylor v. Sandford, 7 Wheat. R. 14. 2 Lowe w. Peers, Burr. 2228; 1 Br. C.C. ^ Perkins v. Lyman, 11 Mass. R. 76; 418 ; 5 Ves. 555 ; 5 Bingh. 390. 9 *. 522. 8 Farrant v. Olmins, 3 B. & A. 692; Denton v. Richmond, 2 Cr. & J. 734. 490 LAW OF LANDLORD AND TENANT. [CHAP. XIII. covenantors against the payment of further sums than are in con- science due, and also to take away the necessity of proceeding in equity to obtain relief against an unconscientious demand of the whole penalty, in cases where small damages only have accrued.^ It is highly remedial in favor of defendants, and the plaintiff can- not refuse to proceed according to its provisions.^ Before the stat- ute, the plaintiff could assign only one breach on the bond ; for, by assigning several breaches, the declaration was objectionable on the ground of duplicity, because the bond was forfeited by the breach of one covenant as well as of several.^ § 674. In assigning the breach of a covenant, it may be done according to the substance, though not in the letter of the covenant.^ It is in general sufficient, where the covenant is in the affirmative, to negative its performance in the words of such covenant. But the rule will not apply where this mode of pleading does not necessarily amount to a breach ; for, on a covenant to indemnify the plaintiff, the breach must show how he was damnified. So on a covenant for quiet enjoyment, the declaration must show how, and by whom, the plaintiff was disturbed in his possession.^ And when a cove- nant is in the alternative, to do one or other of two things, the breach must show that the party has done neither. But in assign- ing the breach of a covenant for quiet enjoyment, the plaintiff need not set out the title of the person who entered upon him, because he is siipposed to be a stranger to it ; it is sufficient to allege gene- rally, that he had a lawful title before, or at the time of the con- veyance to the plaintiff.^ An assignment of a breach of covenant, although in the words of the covenant, has been held ill upon a demurrer to the defendant's plea, because it did not show any par- ticular act of the plaintiff, or in what respect he had refused to act, which amounted to a breach of his covenant. And such bad as- signment was not cured by pleading over a set-off of a demand (claimed in a different right from that in which the plaintiff sued, who was an administratrix) , to a declaration in covenant for unli- quidated damages.'^ But, in general, the breach may be assigned 1 Hardy v. Bern, 5 Term E. 637; ^ Brown v. Stebbins, i Hill (N. Y.), Mackworth v. Thomas, 5 Ves. 331. E. 154 ; Harris v. Mantle, 3 Term R. 307 ; 2 Drage cj. Brand, 2 Wils. 379,- Roles Randel v. Ches. & Del. C. Co., 1 Harring. V. Rosewell, 5 Term E. 638 ; Walcott v. 151 ; 9 Wend. 416 ; Marston u. Hobbs Goulding, 8 Term E. 126. 2 Mass. 433. " Symms v. Smith, Cro. Car. 176 ; « Foster v. Pierson, 4 Term R. 617 ; Barnard v. Michel, 1 Vent. 114, 126. Hodgton v. East India Co. 8 ib. 278. * Potter V. Bacon, 2 Wend. R, 583. ' Warn v. Bickford, 7 Price, E. 550. SEC. T.] THE ACTION OF COVENANT. 491 according to the substance and legal import, though not according to the lettiar of the covenant.'- Where the covenant is in the nega- tive, the declaration in assigning the breach must state specifically what the defendant has done in breach of his covenant. Great certainty, however, is not in general required in stating this, as the acts or omissions alleged are within the defendant's own knowledge.^ Certainty to a common intent will be sufficient ; as where a man covenants for himself and his assigns to pay rent, it is sufficient to say that he did not pay it, without negativing a payment by his assigns.^ But where the breach states the act of a third party as the cause of the infringement complained of, it must be stated with cer- tainty. If, for instance, in an action upon a covenant for quiet en- joyment, the breach state an eviction, and leave it uncertain whether the evicting party claimed adversely to the covenantor, it will be bad ; it should state that such party had a lawful title before and at the time of the grant to the plaintiff, otherwise, if the breach be general and unqualified, it will be presiimed that the title of the evicting party was derived from the plaintiff himself.* § 676. On a covenant to repair, the defendant may show the gen- eral state of the premises at the time of the demise, but cannot go into matter of detail ; ^ and in a covenant to repair and leave in ten- antable repair, the age of the building at the time of the demise may be considered.^ The proper measure of damages on a lease that has several years to run is not the amount required to put the premises in repair, but the amount to which the reversion has been injured by the premises being out of repair.^ Where the lessee of a lease con- taining covenants to repair, &c., underlets or assigns over, and the sub-lessee or assignee enters into covenants to repair, &o., not pre- cisely similar to the covenants in the original lease, this does not operate as a covenant of indemnity ; and, therefore, the lessee cannot recover against the assignee any sum he may have paid for dilapida- tions, or any costs he may have been put to from the assignee's breach of covenant, but only substantial damages upon the assign- ee's covenant, according to the nature of the breaches.^ So rent is 1 Potter V. Bacon, 2 "Wend. R. 583 ; ^ Young v. Muntz, 6 Scott, 277 ; Bur- Abbott V. Allen, 12 Jobns. R. 248 ; Mar- dett ;;. Withers, 2 N. & P. 122. ston V. Hobbs, 2 Mass. E. 433 ; Salmon v. " Stanley v. Towgood, 3 Scott, 313. Bradshaw, J. R. 606. ' Doe v. Rowlands, 9 C. & P. 734, Co- 2 Gale V. Reed, 8 East, 85. leridge, J. s Bui. N. P. 164; Archer v. Marsh, 6 » Bentley v. Watts, 7 M. & W. 601 ; Ad. & El. 959. Neale v. Wyllie, 3 B. & C. 533 ; s. c. 5 D. * Brooks V. Humphreys, 5 Bingh. N. C. & E. 442 ; Walker v. Hatton, 10 M. & W. 55. 249 ; s. c. 2 Uow. n. s. 263. 492 LAW OP LANDLORD AND TENANT. [CHAP. XIII. recoYerable by way of liquidated damages, upon a covenant by the lessee to pay a certain additional rent for every acre converted to tillage ; and the receipt of the original rent, without demanding the additional sum, will not be a waiver of it.^ § 676. There is strictly no plea of the general issue in this action ; for non est factum only puts in issue the fact of sealing the deed, so non infregit conventionem and nil debet are insufficient pleas ; and, therefore, most matters of defence must be specially pleaded.^ Where the breach is assigned generally, by merely negativing the words of the covenant, a plea of performance, pursuing in the like general manner the words of the covenant, is good.^ But where the particular facts which constitute the breach are stated, a plea of performance should meet those facts, and answer them specifically.* § 677. To an action of covenant for rent, as in debt, the lessee may plead that he was evicted by the lessor from the demised prem- ises, and kept out of possession until after the rent in question be- came due ; for an eviction occasions a suspension of the rent ; ^ but a mere trespass will not. For where, to covenant for the rent of a dwelling-house, the defendant pleaded that the lessor had taken away a fruit-house fixed to the dwelling-house, and part of the de- mised premises ; on demurrer the court held, that the fact stated in the defendant's plea being a mere trespass, for which he might have a remedy by action, would not operate as a suspension of the rent.^ Although rent is suspended by an entry into part of the premises, yet on a demise of a messuage with the appurtenances, the covenant to repair is not suspended by an entry into the back-yard, the lessee remaining in possession of the messuage.' § 678. If a tenant would excuse himself from payment of rent, 1 Denton v. Richmond, 3 Tyr. 630 ; of N. A., 3 Yeates, 84. It admits the ex- Jones V. Green, 3 M. & J. 298; 3 B. & A. ecution of tlie instrument, and assumes 692. the proof of performance. Harrison v. 2 Barney v. Keith, 6 "Wend. R. 555 ; 6 Park, 1 J. G. Marshall, 172 ; Roth v. Mil- Cranch, 206 ; Legg v. Robinson, 9 Wend, ler, 15 S. & R. 105 ; 3 Bibb, 202. But in R. 194; Com. Dig. Pleader, 2 V. 4; 8 Alabama, a plea of payment, or of perfor- Term R. 283. mance, does not admit the deed, and the 3 14 Johns. R. 248. plaintiflTmust prove his cause of action as * 13 Johns. R. 404 ; 2 ib. 416. In Penn- if no such plea had been filed. Bryant v. sylvania, under a plea of performance, Simpson, 3 Stew. 339. with leave to give in evidence any thing ^ Fitchburg Cot. Man. Co. u. Melvin, that amounts to a legal defence, the de- 15 Mass. R. 268 ; Datston v. Reeve, Lord fendant may prove any matter that he Raym. 77 ; Dyett v. Pendleton, 8 Cow. might have pleaded specially. Webster R. 727. V. Warren, 2 Wash. C. C. 456 ; 4 Dall. " Roper v. Xloyd, T. Jones, 148. 439. On such a plea, the defendant has a ' SneUing v. Stagg, Bull. N. P. 165. right to open and close. Norris v. Ins. Co. SEC. V.J THE ACTION OP COVENANT. 493 upon an eviction by a stranger, he must show that the stranger had a good title to evict him ; and, in order to give the |)laintiff an oppor- tunity of controverting such title, tlie defendant must show how it arises : for if it were sufficient to allege generally that the stranger had a good title, a single issue could not be taken on it ; and as the legality, as well as the fact of title, would be complicated together, the jury would be entangled with questions of law, which are proper for the consideration of the court alone ; to avoid this inconven- ience, it is necessary that the title should be specified.^ A landlord cannot maintain an action of covenant, for arrears of rent, against a party occupying demised premises, charging him as assignee, when in fact he never had an assignment of the lease ; though he will be presumed to be in as assignee if in possession, until the contrary appears.^ Nor does the action lie for breach of a covenant for quiet enjoyment, although the grantee has been prosecuted in trespass by a third person, claiming title and a recovery had against him, unless the plaintiff in the action avers and proves that such third person, before or at the date of the covenant, had lawful title, and, by virtue thereof, entered and ousted the plaintiff.^ It is not necessary to state all the facts constituting an eviction, but a declaration setting forth such facts would be good.* § 679. Eent is only apportionable where the partial eviction is by a stranger ; ^ for upon such an eviction by the lessor, he cannot maintain either debt or covenant for rent in any amount. Al- though, upon a partial eviction by the lessor, if the lessee, instead of giving up the remainder of the premises, as he may do, continues to hold them, he may be charged for their value upon a quantum meruit, but not on the covenant in the lease. ^ A partial eviction by the lessor, however, is only a bar to an action on the covenant for rent, and forms no answer to a breach of other covenants in the lease ; at least until it be shown that the party elected to give up the residue of the premises.^ Against the assignee of a term, though an eviction of three-eighths of the estate has taken place, the defendant is not entitled to ask for an apportionment of rent, under a general plea denying his holding as assignee. Such relief 1 Per M. Hardwicke, in Jordan u. ^ Neale v. Mackenzie, 1 Mees. & W. Twells, Co. Temp. Hardw. 172. 753. 2 Quackenboss v. Clarke, 12 Wend. R. '^ Newton v. Allin, 1 Gale & D. 44; 555. Digby V. Atkinson, 4 Campb. 275 ; Tom- 3 Webb V. Alexander, 7 Wend. R. 281. linson v. Day, 2 B. & B. 681. * Rickert v. Snyder, 9 Wend. R. 416 ; ' Browne on Actions, 354. McGeehan v. McLaughlin, 1 Hall, 33. 42 494 LAW OF LANDLORD AND TENANT. [CHAP. 5III. can only be had by pleading the facts specially, and not in bar of the whole action.^ If the defendant be charged with a breach of covenant for non-payment of rent, and he have surrendered his estate after some part of the rent became due, he cannot plead his surrender in bar of the whole action, for the breach is not entire, but the plaintiff may recover by proving part of it.^ § 680. An assignee, who is chargeable only in respect of his privity of estate, may show that, before the rent became due, or be- fore the breach of covenant, he assigned the estate, and so dis- charged himself.^ And where, to a plea of this kind, the plaintiff replied, that in and by the indenture the lessee for himself, his executors, administrators, and assigns, covenanted not to assign without the consent of the lessor, and that no such consent was given ; the replication was holden bad, because the action was founded on the privity of estate, which was destroyed by the assign- ment ; the proper remedy for the plaintiff was, by action on the covenant not to assign.* The lessee is always liable upon his cove- nant, notwithstanding his assignment ; but if sued in debt, he may show that he has assigned with the assent of the landlord, either expressly, or implied by his recognition of the assignee as his ten- ant.^ But he cannot plead to covenant for rent, an assignment and tender by the unaccepted assignee.^ § 681. In debt, where the plaintiff seeks to recover the rent itself, it is sufficient to show payment after the day on which it became due, or that the lessor distrained upon him, and so satisfied his demand ; "' but these defences are not available in covenant, because here, the plaintiff seeks damages for the defendant's breach of cove- nant, and the plea would, in itself, amount to an admission that he had broken it.^ In any form of action, however, an under-tenant may show, that before the rent became due, the superior lord or the grantee of a rent-charge, threatened to distrain for rent due from the lessee, and that he paid the rent to save his own goods.^ It must appear to have been a compulsory, and not a mere voluntary payment ; but it will not be the less a compulsory payment, that the landlord, on demanding it, allows the occupant time to 1 Lansing v. Van Alstyne, 3 "Wend. E. ^ OrgiU v. Kempsnead, 4 Taunt. 642. 561. ' Dyer, 20, b ; Cro. Eliz. 140. 2 Barnard v. Dutty, 5 Taunt. 27. * Hare v. Savill, 1 BrownL 19 ; "Warner 8 Pitcher v. Tovey, 1 Show. 340 ; 1 v. Theobald, Cowp. 589. Saund. 56. 9 Sapsford v. Fletcher, 4 Term R. 511 : * Paul V. Nurse, 8 B. & C. 486. Cobb v. Carpenter, 2 Campb. 13, n. ; Tay- 6 Marrowe v. Turpin, Cro. EUz. 715. lor v. Zamira, 6 Taunt. K. 624. SEC. V.J THE ACTION OP COVENANT. 495 pay.^ Covenants may sometimes also be discharged by parol upon a good consideration.^ So an action for a breach of covenant may be barred by a note accepted in satisfaction of the breach.^ But a negotiable note with sureties taken by a landlord after making a distress, for the amount claimed as rent payable in sixty days, under an agreement to relinquish the distress, and not re-enter or distrain within the sixty days, is only a collateral security, and not a payment or satisfaction of the rent, inasmuch as the note did not appear to be taken in absolute payment ; it appearing, also, that the note had not been paid or negotiated by the landlord, and that, therefore, all his remedies were open independent of the note.* § 682. In an action for rent by the lessor, the defendant cannot set off damages that he may be entitled to recover against the lessor, on covenants contained in the same indenture on which the action is brought ; ^ but we have seen in what cases, and to what extent, a tenant may recoup himself for payments made by him on the lessor's account, or for damages he may have sustained by the lessor's failure ' to perform his covenants.^ The statute of limitations does not apply to actions on specialties. And an action for a breach of covenant for title will not be barred by the bankruptcy and certificate of the covenantor, although the cause of action accrued before the bank- ruptcy.'' Where the assignee of a term of years covenants to per- form all the covenants in the lease, on the part of the lessee to be performed ; in an action of covenant by the lessor or assignor against him, for rent due and unpaid to the original lessor, it is not neces- sary to allege that the plaintiff has been obliged to pay the rent to the lessor, or been damnified ; for such an assignee will continue liable, although he may have assigned over the lease, before any rent became due, to one who has been accepted by the lessor as his ten- ant ; and non damnificatus is, therefore, no answer to the declara- tion, for the covenant, being express and positive, is broken by the rent remaining unpaid.^ A recovery in an action on a covenant against encumbrances, and assessment of nominal damages merely 1 Carter v. Carter, 5 Bingh. 497 ; Pope 612 ; Mills v. Auriol, 1 H. BI. 433 ; Ante, V. Biggs, 9 B. & C. 245. § 457. An insolvent's discharge is no ^ Barnard v. Darling, 5 Ham. 381 ; 1 bar to an action on an express covenant to Bailey, 89. pay rent brought to recover rent accruing 3 Moody V. Leavitt, 2 N. H. K. 171. subsequent to the discharge. Lansing v. 4 Cornell V. Lamb, 20 Johns. R. 407 ; Prendergast, 9 Johns. E. 127 ; 4 T. E. 94 ; 13 S. & E. 52. 4 Den. E. 573 ; and see, ante, § 456, 457. 6 Tuttle V. Tompkins, 2 Wend. R.407. " Port v. Jackson, 17 Johns. E. 289, 6 Ante, §§ 374, 630. 479. ' Hammond v. Toulmin, 7 Term E. 496 LAW OF LANDLORD AND TENANT. [CHAP. XIII. because the covenantee had not removed the encumbrance is no bar to another action to recover the actual damage suffered to extin- guish the encumbrance.^ Where a tenant under a lease containing a covenant to repair underlets the premises to one who enters into a similar covenant with him, and the original lessor brings an action on the covenant, and recovers against the first lessee ; the damages and costs recovered in that action, and also the costs of defending it, may be recovered as special damages in an action against the under-tenant, for the breach of his covenant to repair.^ § 683. Where covenants are dependent, it is a good plea in bar that the party seeking performance has not performed or offered to perform the covenants on his part ; ^ although it is otherwise where the covenants are independent.* In covenant against a lessee for not repairing, the declaration stated, that by indenture the defend- ant covenanted to repair the demised premises, and, at the end of the term, to surrender up the same in good repair, the lessor (the plaintiff) finding timber sufficient for siich repairs ; the breach assigned was for not repairing ; the defendant pleaded that the plaintiff did not find sufficient timber; on^demiirrer, it was ad- judged, that finding the timber was a thing in its nature necessary to be done first, and, therefore, a condition precedent, the perform- ance of which ought to have been averred in the declaration.^ To an action for not repairing the premises, the tenant may show, that the lessor was bound to furnish him with timber or other materials for the repairs, and that he has neglected or refused to do so. But a plea that the landlord did not assign him materials is bad, for he should have shown that he asked ; or that there were none proper to which he had a right, is also bad, for this puts the issue upon a point of law, and not a matter of fact.^ § 684. The execution of a lease, and the possession of the prem- ises by the defendant, is evidence sufficient primd facie to charge him as assignee for the non-payment of rent ; although it is not conclusive.^ But if the issue is made up on the question whether the defendant holds as assignee, the plaintiff must prove the assign- ment to the defendant.^ Where the breach is specially assigned, 1 Donnell v. Thompson, 1 Fairf. 170. ^ Thomas v. Cadwallader, Willes 496 2 Seal V. Wyllie, 3 Bam. & Cress. " Brailsford v. Parsons, Lutw. 316. 533 ; 5 Dow. & Ey. 424. » Williams v. "Woodward, 2 Wend. 487 • 8 Parker v. Parmele, 20 .Johns. R. 130. ib. 563. * McCamphell v. Miller, 1 Bibb, 453 ; » Lansing v. Van Alstvne 2 Wend 2 Wash. C. C. 456. 563; 12*. 555. SEC. T.] THE ACTION OF COVENANT. 497 and the proof alleged to be by deeds and records, they are to be shown on oyer.^ On a plea of performance, the defendant assumes the burden of proof, and is, therefore, entitled to open and close the case.^ Upon a breach assigned that the defendant had not used the premises in a husband-like manner, but, on the contrary, had committed waste, an issue was taken that the defendant had not* committed waste. At the trial, the plaintiff offered evidence to show, that the defendant had not used the premises in a husband- like manner, which did not, however, amount to waste ; but the judge rejected the evidence, being of opinion, that on this issue it was not competent for the plaintiff to prove any thing which fell short of waste, and the opinion was afterwards confirmed by the . court.^ § 685. A court of equity will not, in general, decree the specific performance of a covenant, but leaves the party to his damages in , an action at law.* But under some circumstances, as where a ten- ) ant is about to do an act against which he has expressly cove- *■) nanted, this court will restrain him by injunction.^ It is only, } however, where the legal remedy is inadequate and defective that equity interferes. Where a defect is discovered in the title, which can be supplied by the grantor, the grantee may file a bill in equity for a specific performance of the covenant for further assurance. And a grantor under this covenant will be compelled to convey a title he may have subsequently acquired, though he purchased such title for a valuable consideration.^ Although equity cannot specifically enforce a covenant to rebuild, unless its terms are clearly defined, yet, when the agreement is so distinct that the court can describe the building, as a subject for the report of a master, specific performance will be decreed.'^ If a covenant is broken, the landlord may indulge his caprice, and even malice, against the tenant, without any certain relief; but, as a general rule, equity will not enforce a covenant embracing a hard bargain ; and, at law, there can be no damages without an injury.^ But there are many cases of covenant broken, in which the recovery of damages at law, however large in amount, would never be a com- 1 Wilford V. Rose, 2 Eoot, 172. ^ Barrett v. Blagrove, 5 Ves. E. 555. 2 Scott V. HaU, 8 Conn. E. 296. " Taylor v. Debar, 1 Ch. Ca. 274 ; 2 ib. s Harris v. Mantle, 3 Term E. 397. 212 ; Seabourne v. Powell, 2 Vern. R. 211. ^ rUnt V. Brandon, 8 Ves. E. 159 ; 2 ' Mosely w. Virgin, 8 Ves. E. 184. Edw. 128; 2 Atk. 44; 1 Ves. Jr. 235; ^ Coe w. PMUp, 9 Moore, R. 46 ; 8 B. & 2 Br. Ch. Ca. 341 ; 16 Ves. R. 405. C. 308. 42* 498 LAW OF LANDLORD AND TENANT. [CHAP. 2III. pensation to the party aggrieved. Hence has arisen the system of preventive jtistice administered in a court of equity, by means of injunction to restrain breaches of covenant. This opens a wide field of learning, which we do not intend to enter upon, having already touched upon it in treating of the respective covenants of the parties, to which the reader is referred. A very frequent cause of its application, however, occurs in the prevention of waste, which subject we have next to discuss. SECTION VI. ACTIONS FOR WASTE. § 686. At common law, an action of wade may be maintained by the reversioner, to recover damages for voluntary waste committed by the tenant during his occupation.^ It could only be brought by him who was entitled to the immediate reversion of the premises, at the time when the waste was committed. And for the want of this privity of estate, the assignee of the reversion could not sue for waste done previous to the assignment.^ The reversioner must have had an estate of freehold in him ; for, as waste is an injury to the inheritance, a tenant for years could not maintain an action for waste.^ And it was punishable only against three classes of persons, guardian in chivalry, tenant in dower, and tenant by the courtesy ; but not against a tenant for life or years : for the reason, as Lord Coke says, that the law which created the former of these estates and interests provided a remedy itself against waste, but left the owners of the land, who created the others, to provide a remedy in their demise.* The statute of Gloucester^ extended the protection of the writ of waste to tenants for life and for years ; and directed that the tenant should forfeit the place wasted, and also treble damages. The Revised Statutes of New York have so far altered the common law, as to permit every person seized of an estate in 1 2 Saund. E. 252, n. (7); Jefferson u. R. 70; McLaughlin v. Long, 5 Har. & The Bishop of Durham, 1 Bos. & Pul. Johns. R. 113 ; Robinson v. Wheeler, 25 120. The nature of waste is discussed N. Y. R. 252. under the head of the covenant to repair, ' McLaughlin v. Long, 5 Har. & J. 113 ante, §§ 345-356. * Co. Lit. 145 ; 2 Bl. Com. 282. 2 Co. Lit. 53, a ; Grene v. Cole, 2 Saund. ^ g Edw. 1, c. 5. R. 235, n. (2) ; Carris v. IngaUs, 12 Wend. SEC. TI.] ACTIONS FOR WASTE. 499 remainder or reversion, to maintain an action of trespass or waste, for any injury done to the inheritance, notwithstanding any inter- vening estate for life or years.^ And this he may do, although after the commission of the waste, he has alienated the estate, and has no interest therein at the time of suit brought.^ It also provides, that if any guardian, or any tenant by the courtesy, tenant in dower, or for term of life or years, or the assigns of any siich ten- ant, shall commit waste, diiring their several estates or terms, of the houses, gardens, orchards, lands, or woods, or of any other thing belonging to the tenements so held, without a special and lawful license in writing so to do, they shall be subject to an action of waste. § 687. To guard against fraudulent transfers, these statutes further provide, that in case any such tenant shall let or grant his estate, and still retain possession of the same, and commit waste, the party entitled to the reversion of the tenements may maintain his action of waste against such tenant. If one joint tenant, or tenant in common, shall commit waste of the estate held in joint, tenancy, or in common, he shall be subject to an action of waste, at the suit of his co-tenant or tenants. And an heir, whether, he be within or of full age, may maintain an action for waste done in the time of his ancestor, as well as his own time.® The statute then proceeds to point out the different proceedings in the action of waste ; and if the action is brought by any other than a joint-tenant, or tenant in common, and the plaintiff prevails in the action, the judgment is tha,t he recover the place wasted, and treble the damages found by the jury. If the action is brought by a tenant in common, or by a joint tenant against his co-tenant, and he recover ; he will be entitled, at his election, either to take judgment for the treble damages found by the jury, or to have partition made of the premises held in com- mon or joint tenancy. If he adopts the latter course, commissioners are to be appointed, who proceed to make a final and effectual par- tition between the parties.* 1 1 R. S. 750, § 8. The action of waste, The provisions of the revised statute re- as provided for and regulated by tlie New- lating to the action of waste shall apply Tork statute, has been abolished by the to an action for waste, brought under the Code of Procedure, and a civil action sub- code, without regard to the form of action stituted. " "Wrongs heretofore remediable so far as the same can be applied. § 451. by action of waste are subjects of action ^ Robinson v. Wheeler, supra. It is as other wrongs; in which action there enough if he was seized of the interest at may be judgment for damages, forfeiture the time the waste was committed, of the estate of the offending person, and ^ 2 R. S. 334, § 1-4. eviction from the premises." Code, § 450. * 2 E. S. 335, § 10-17. 500 LAW OP LANDLOED AND TENANT. [CHAP. XIII. The common-law action of waste, howeyer, has fallen into disuse, and given way to an action on the case, in the nature of waste, which is now the ordinary means of recovering damages against a tenant for voluntary waste .^ And in this form of action the reversioner, or remainder-man in fee, for life or for years, may recover damages, either against his tenant or a stranger, for an injury to his reversion ; ^ and although the lease may contain a cove- nant against waste, he is not obliged to sue upon the covenant, but may elect to bring either covenant or case. The action lies against a tenant by sufferance, or for years, although holding over after notice to quit.^ But against a tenant at will, trespass, and not case, is the proper remedy.* Though assumpsit is the usual remedy against a tenant, for not cultivating land according to the course of good husbandry, or for not repairing, yet for voluntary waste, and particularly where there has been any conversion of trees, or other property, case may frequently be preferable ; which, it has been held, is a concurrent remedy with covenant, where there has been voluntary waste. And if a tenant does any act which is injurious to the reversion, the landlord may bring his action for damages during the term, even although the tenant may have it in his power to restore the premises to their original state before its expiration.^ § 689. A tenant for years, or from year to year, was formerly held liable for permissive waste ; ^ but the later cases hold that he is in neither case liable for mere permissive waste, unless the lease contains a covenant to repair on his part.^ The common-law action cannot be maintained against an executor, for waste committed by a testator in his lifetime ; because waste is a tort, and the cause of action strictly personal, which, in the language of the law, dies with 1 14 East, 489. In an action to recover waste against a tenant, and trespass damages for waste, the jniy, in determin- against a stranger : it does not give waste ing the amount of damages, are to inquire against a stranger. Livingston v. Hay- how far the acts of the defendant have in- wood, 11 Johns. B,. 429 ; Bates v. Shraeder, jured the plaintiffs estate and inheritance. 13 Johns. R. 260. An action on the case And, in doing so, they are not limited to in the nature for waste lies against an as- the value or market price of wood and signee of the lease. Short v. Wilson 13 timber actually cut and removed; but Johns. R. 33. ' should also consider the effect which tlie ^ jjinlyside v. Thornton, Black. R. cutting of it has had upon the place alleged 1111 ; 1 Gampb. 350. to be wasted. Harder v. Harder, 2B Barb. * Cro. Car. 187 • Sir Wm Jones '^'>i ■ ^■f^h , ^ n.o . Cro. Ehz. 777; Co. Lit. 57, a; 8 EastTR^ 2 2 Saund. R. 252, d, note ; 8 East, R. 190 ; 1 Taunt. 194. 38. The provisions of the N. Y. R. S. ^ Queen's CoUege, Oxford, v. Hallett 750, § 8, givmg the reversioner or re- 14 East, R. 489. mainder-man an action of waste or tres- " 1 Saund. K. 223, b, n. 7. pass, notwithstanding any intervening ' Gibson v. WeUs, 1 N. R. 290 • 10 B estate for life or years, authorizes only & C. 312. ' SEC. VI.] ACTIONS FOR WASTE. 601 the person. But the ReAased Statutes of New York provide a remedy in such cases ; for any person, or his personal representa- tives, may have actions of trespass against the executor or adminis- trator of any testator or intestate, who, in his lifetime, shall have wasted, destroyed, or carried away the chattels of any such person, or committed any trespass on the real estate of any such person.^ The executors and administrators of a tenant for years, however, are punishable for waste committed by themselves, while in posses- sion of the land, as other persons are. And if, by the commission of waste by a testator, his personal estate has been benefited, his executors will be chargeable for it at common law, to the value of the property, in an action for money had and received.^ Every lessee, whether for life or years, is liable in an action of waste to his lessor, for all waste done on the land, by whomsoever committed ; and if done by a stranger he must answer, and take his remedy over.^ And if one of two joint tenants commit waste, it is waste by them both ; but when treble damages are imposed by any statute, they are only recoverable against the person who actually com- mitted the waste.* § 690. The Revised Statutes also enact, that after the actual commencement of any action for the recovery of land, or the pos- session of land, the defendant in such action shall not make any waste of the land in demand, pending the suit; and if he does commit waste, the court in which such action is pending shall have power to make an order restraining him from the commission of any further waste thereon ; and the court making such order shall have the same power to attach and commit the defendant for any violation thereof, that is possessed by the Court of Chancery, upon the violar tion of an injunction issued out of that court ; ^ the effect of which is, to give the common-law courts the same power to restrain and prevent waste, in cases of this kind, which has formerly been exer- cised by the Court of Chancery alone. The common-law remedies, however, are still so inadequate, as well to prevent waste, as to give redress for waste already committed, that they have, in a great measure, given way to the remedy by bill in equity ; which is so much more easy, expeditious, and complete, that it is almost invari- ably resorted to. By such a bill not only may future waste be 1 2 R. S. 114, § 5. * 2 Saund. R. 259, b. 2 Hambly v. Trott, Cowp. R. 376. ^ 2 R. S. 333, § 18, 20. ^ Cook V. Champlain Transp. Co., 1 Denio, R. 91 ; 1 Taunt. 196. 502 LAW OP LANDLOED AND TENANT. [CHAP. XIII. prevented, but an account may be decreed, and compensation given for past waste. Besides, as we have seen, an action on the case will not lie at law for permissive waste ; but in equity an injunction will be granted to restrain permissive as well as voluntary waste.^ This course of proceeding is also open to many persons who could not take advantage of the legal remedies ; and an injunction will be granted, though no action at law can be maintained against the tenant ; nor is it necessary, in any case, that there should be a suit pending.^ § 691. A landlord need not wait until waste is actually commit- ted ; for if he ascertain that the tenant is about to commit any act which would operate as a permanent injury to the estate, this court will interfere and restrain him from doing such act. If, therefore, he begins, or threatens, or shows an intention to commit waste, an injunction will be granted.^ And a court of equity will grant an injunction to restrain the tenant from doing a certain act, whether it amounts to waste or not, provided it be directly contrary to the tenant's own covenant, or even in contravention of an agreement, which may be inferred from the course of dealing between the parties.* In a case where a tenant from year to year, having received notice to quit, was proceeding to take away the crops, manure, &c., contrary to the usual course of husbandry, and to cut and damage the hedge-rows, &c., the Chancellor granted an injunc- tion, observing that the principle applied equally to the case of a tenancy from year to year, as to a lease for a longer term.^ And where the tenant, in revenge of the landlord's having distrained on him, threatened to sow the land with mustard seed, which is very injurious to the soil, and requires many, years to eradicate, the court granted an injunction to prevent him.^ In another case, where the tenant cut timber and firewood from the estate for the purpose of selling it, abusing his privilege of taking such reasonable 1 Caldwell v. Baylis, 2 Meriv. R. 408 ; waste of this character are not to be 2 Story, Eq. Jur. 179 ; 1 Ves. Jr. 93. In frowned upon by the court. Per Sanford, Watson V. Hunter, 5 Johns. C. E. 169, the A. V. Ch., in Sarles ■/. Sarles, 3 Sandf. Chancellor stated the general rule to be, Ch. E. 601. that an injunction would be confined to ^ Gibson v. Smith, 2 Atk. E. 182 ; restrain future waste, as an action of Mayor of London v. Hedger, 18 Ves. R. trover would lie for what had been cut. 355(;~I&npton v. Eve, 2 Ves. & B. 349 ; 2 Kane v. Banderburgh, 1 Johns. Ch. Caldwellvi). Baylis, 2 Meriv. 408. E. 11. It is scarcely possible to estimate * Lord Grey de Wilton v. Saxon, 6 the injury which the destruction of a few Ves. 106 ; '8 ib. 353 ; 16 ih. 173-328. valuable timber-trees, by a tenant for life ^ Onslow v. Corrie, 16 Ves. 173. See on a farm with a scanty stock of wood also Sir Win. Pultney v. Skellon, 6 Ves. and timber, may occasion to the owners of 147, 260. 1 the inheritance. Hence bills to restrain ^ Pratt v. Brett, 2 Mod. Ch. E. 62. SEC. VI.] ACTIONS FOR WASTE. 503 firewood as was necessary for his own use, the court granted an injunction to prevent him from proceeding any further.^ So where the defendant liad a lease for four years of certain land, the pi-inci- pal value of which consisted in pine timber growing thereon, and was proceeding to cut large quantities of it, and saw it up in his mills ; he was restrained from cutting any more, or from removing that already cut down.^ § 692. If a lessor excepts the trees in his lease, the lessee is not entitled to take his usual estovers ; and, in such case, waste will not lie against the tenant for cutting trees, because they are not parcel of the thing leased, but trespass will be the appropriate remedy.^ As a tenant for life or for years has no property in timber-trees, though he has a special interest in the fruit and shade as long as they are annexed to the land,* he will be restrained from cutting timber, even where there is a demise of a farm expressly including the trees ; for though there is no express exception as to the cutting, the law makes the exception, and the lessee cannot cut them down, because he has but a limited interest.^ And where a lease contained covenants not to convert any meadow land, with other usual covenants in the lease of a farm, showing clearly the nature of the lease, for the purpose of tillage as a farm ; Lord Eldon granted an injunction to restrain the defendant, a tenant to the plaintiff, from breaking up meadow for the purpose of building, contrary to the covenants of his lease.^ At a later period, however, he granted an injunction to restrain a tenant from committing waste by ploughing up pasture land, although there was no express covenant not to convert pasture into arable, on the ground that a covenant contained in the lease, to manage pasture in a husband- like manner, was equivalent to it.' So if a tenant takes a lease of lands adjoining his dwelling-house, and, with the consent of the lessor, throws part of the demised premises into his ornamental grounds, going to considerable expense in permanent improvements, by planting and otherwise ; though the lessor may have reserved, in the amplest manner, all trees and shrubs that may be planted on the premises, yet, after having stood by and seen the improvements going forward, giving at least an implied assent to them, he will be 1 Lord Courtown v. Ward, 1 Sch. & ^ 2 Wils. Ch. E. 11 ; llEep.46; Dyer, Lef. 8 ; Bennett v. Sadler, 14 Ves. 526. 37. 2 Watson V. Hunter, 5 Johns. C. R. 169. " Lord Grey de Wilton v. Saxton, 6 8 Vin. Abr. Waste (M.), pi. 26. Ves. 106. 1 Co. R. 62; Dyer, 90. ' Drury v. Molins, 6 Ves. R. 328. 504 LAW OP LANDLORD AND TENANT. [CHAP. XIIL enjoined from injuring the beauty of the grounds by cutting down the trees, ^ for where a man encourages another to lay out money, upon the supposition that he never means to exercise his legal rights, equity will not permit him to exercise them.^ § 693. An injunction will also be allowed to restrain a lessee from pulling down, damaging, or destroying, contrary to his cove- I nant, any of the biiildings, trees, bark, wood, underwood, hedges, or fences, or from sowing the farm with any pernicious crop, and from removing from off the farm any of the hay or straw, dung or manure, produced or made thereon. ^ Or to prevent a lessee from making such alterations in a dwelling-house, by changing it into a store or warehouse, as would produce a permanent mjury to the building.* But the rule is not so rigid when applied to city leases ; for where a tenant, for a term of eight years, in the city of. New York, pulled down a fence, and proceeded to build a stable on the rear of the lot, the court refused to restrain him from such proceeding ; on the ground that, if it amounted to waste, the party had a perfect reme- dy at law for the injury ; and that the Court of Chancery only interfered to prevent future waste, in cases where there are some special grounds for equitable interference, as where waste has already been committed, or a discovery is necessary, or the com- plainant has no remedy at law. In ordinary cases, the account for waste already committed is merely incidental to the relief by injunc- tion against future waste, and is directed upon the principle of preventing a needless multiplicity of sxiits.^ § 694. We have observed, that the immediate reversioner could alone maintain an action at law for waste, the ground of interposi- tion in general being that of a privity of estate between the parties ; but equity does not follow the law in this respect, for a remainder- man in fee may have an injunction to stay waste against an under- lessee, notwithstanding the intermediate estate.^ And it will be granted in favor of the mesne remainder-man for life ; for though he has no right to the timber, yet, if the first tenant for life should die, he would have an interest in the mast and shade.'' A termor who has built upon land which he holds at a ground-rent is, upon 1 Jackson v. Cator, 5 Ves. R. 691. ^ Farrant v. Lowell, Amb. 195 • s. o. 2 Brydges v. Kilburne, 5 Ves. E. 689. 3 Atk. R. 723 ; Eoswell's Case, 1 Eol. Abr. 3 Pratt V. Brett, 2 Madd. R. 62 ; Ifimp- 377 ; Tracy v. Tracy, 1 Vern. 23 ; Robin- ton V. Eve, 2 Ves. & B. 349. son v. Litton, 3 Atk. 210. * Douglas V. Wiggins, 1 Johns. C. R. ' Mellinexix v. Powell, 3 P. "Wms. 268, 435. n. ; Perrott v. Perrott, 3 Atk. 94 ; Davies 6 Winship v. Pitts, 3 Paige, R. 259. v. Leo, 6 Ves. 637. SEC. VI.] ACTIONS FOE WASTE. 505 a proper case shown, as much entitled to an injunction to stay waste against his under-tenant, as if he had an estate of inheritance. ^ So a mortgagee in possession, who commits waste by cutting timber, without applying the money arising from the sale of such timber in reducing the mortgage debt, will be restrained in equity, upon a bill filed by the mortgagor. A mortgagor in possession will also be restrained from committing waste, for the whole estate is the secu- rity, and ought not to be diminished.^ But he may cut underwood at seasonable and proper times ; Lord Eldon remarking that there never was an instance of preventing the mortgagor from taking the ordinary fruit of the land.^ Trustees to preserve contingent remain- ders are entitled to all remedies of law and equity, to support their trust, and may therefore file a bill for an injunction against a tenant for life committing waste.* In the case, also, of joint tenants and tenants in common, with respect to whose acts of waste, as between themselves, the common law has provided no remedy ; courts of equity will interfere, when it appears that waste has been commit- ted or threatened by one tenant in common, who has become pos- sessed of the whole premises.^ § 695. Relief will not be granted on slight or uncertain grounds ; it is not sufficient for a plaintiff to swear merely that he has been informed and believes that the defendant intends to commit waste ; or upon a simple apprehension that he means to do mischief, when he denies any such intention ; but there must appear to be an actual attempt to commit waste, or some act from which the inten- tion is fully evinced, as sending a surveyor to mark out the trees, or the like.^ Threats, however, will form a sufficient ground for an injunction ; for it is not necessary to stay until waste is actually done.'' And it has been granted against a tenant for life, who insisted upon a right to commit waste, where he had none, although no waste was in fact committed.^ And to entitle a party to relief by injunction on the specific ground of waste, it must appear that 1 Mayo V. Feaster, 2 McCord, Ch. R 137. 2 Brady v. Waldron, 2 Johns. Ch. R 146 ; Farrant v. Lowell, supra. 8 Hampton v. Hodges, 8 Ves. 105 Bromley v. Fanning, 1 Johns. Ch. R. 501 Ves. 273 ; Wibnot v. Lansdowne, 2 Madd E. 187. ^ Hawley v. Clowes, 2 Johns. Ch. E 122; Twort v. Twort, 16 Ves. E. 132; Hale V. Thomas, 7 Ves. E. 589. 43 5 Jackson v. Cater, 5 Ves. E, 688 ; Hanson v. Gardiner, 7 ib. 809 ; 10 ib. 54. ' Gibson v. Smith, 2 Atk. E. 182 ; 6 Ves. 706 ; 1 Jac. & Walk. 658. ' Barn. 497. An injunction will not be allowed to prevent the repetition of a tres- Garth v. Cotton, 1 Dickens, 183 ; 10 pass in entering and cutting down timber on land owned hy the plaintiff, and of which he is in possession; for he has a remedy at law. Stevens v. Beekman, 1 Johns. Ch. E. 318. 506 LAW OP LANDLORD AND TENANT. [CHAP. XIII. the property in dispute is actually affixed to the freehold, and is not a mere movable fixture. For, where a bill was filed praying an injunction and account, stating that the defendant had commit- ted waste by destroying a dove-cot, and by removing the locks from the doors of the house, the chains from the lawn, the statues, images, and fences from the pleasure-ground, wardrobes, presses, and closets, forming part of the wainscot of the house ; the Lord Chancellor in giving his judgment said, " The foundation of this motion for an injunction is, first, a clear act of waste ; and, second, an act removing things supposed to be fixed to the freehold, wain- scot, presses, &c. As to the dove-cot, a clear act of waste is proved; therefore, against such waste, the injunction must be revived. But I cannot grant it against removing the presses, &c., which are mere personal property, if not affixed to the freehold." ^ § 696. Neither will an injunction to stay waste be granted where the plaintiff's title is denied ; especially if there has been unneces- sary delay in trying the title at law ; ^ nor where the parties are litigating their adverse rights in a court of law, or the defendant has been a long time in possession, claiming adversely.^ The ques- tion of disputed title must be first disposed of by the proper juris- diction. But in a case where the defendant to a bill to stay waste stated that he was in possession by a titl^of his own ; but admitted tliat he was let into possession by the plaintiff's tenant, in breach of his duty to his landlord, the defendant's title was, for this pur- pose, held to be no better than the tenant's ; and he was not per- mitted to avail himself of a possession so improperly obtained, and was, on that account, restrained.* And where the right is doubt- ful, eqxrity will sometimes restrain a tenant until the right is deter- mined at law.^ If a tenant, defending an ejectment, makes use of the interval to do all the mischief he can, by breaches of covenant and wilful waste, an injunction will be granted at common law, though it is otherwise if an ejectment has not been brought ; ^ and we have seen, that the Revised Statutes of New York provide a remedy in a court of law for such a case.^ But if a tenant cove- nants not to plough pasture, and if he should, to pay at the rate of twenty shillings an acre per annum, the court will refuse an 1 Kimpton v. Eve, 2 Ves. & B. 349. * Comthope v. Maplesden, 10 Ves. 291 ; 2 Higgins V. Woodward, 1 Hopk. E. 19 Ves. 154. 342. 6 Sunderland v. Newton, 3 Sim. R. 450. ^ Storm V. Mann, 4 Johns. Ch. E. 21 ; ^ Lathropp v. Marsh, 6 Ves. R. 259 Jones V. Jones, 3 Meriv. K. 173 ; 6 Ves. 52. ' Ante, § 690. SEC. VI.] ACTIONS FOR WASTE. 507 injunction, as the damage has been settled between the parties themselves, and a price set for ploughing : nor, on the other hand, will the court assist a defendant coming in for relief against such payment.^ § 697. An estate for life is always impeachable for waste, unless the contrary is expressly provided for.^ And a tenant for life with- out impeachment of waste, who makes an unconscientious or mali- cious use of his power, will be restrained and controlled by a court of equity, whenever his acts tend to the destruction of the inheri- tance. As where the tenant for life, " without impeachment of waste," of Eaby castle, had stripped the castle of the doors, win- dows, &c., and was proceeding to pull it down, he was enjoined from any further proceeding, and required to repair it forthwith.^ Upon this principle, also, equity will prevent the cutting of timber of too young a growth,* or trees planted for the protection or shel- ter of the several mansion-houses belonging to the estate, or for ornament, or which grow in lines, vistas, walks, or other grounds belonging to the mansion.^ And a tenant cannot justify waste under a parol license ; and the fact that the license was on condi- tion that he should clear and seed the land on which he cut the timber does not render such a license admissible.^ 1 Woodward v. Gyles, 2 Vern. 119. De Gex & Jones, R. 323 ; s. c. 15 Sim. R. 2 Cole V. Payson, 1 Ch. R. 57 ; Coop. 505 ; 6 ib. 497. Ill ; Wright v. Cooper, 19 Ves. 299 ; 1 * Cliamberlayne v, Dumwer, 1 Bro. C. V. & B. 313. Ante, § 355. C. 166 ; 3 ib. 548 ; 2 *. 88. 8 Vane v. Ld. Barnard, Free. Chan. 5 je^b v. Jebb, 6 Ves. 110-419 ; 8 *. 454 ; 2 Vern. R. 738 ; Paokington's Case, 70 ; Day v. Merry, 16 Ves. 375 ; 6 Ves. 3 Atk. R. 215 ; Clement v. Wheeler, 5 106 ; Leeds ;;. Amherst, 2 PhiU. R. 117. Foster, N. H. E. 361 ; Morris v. Morris, 3 '^ McGregor v. Brown, 10 N. Y. R. 114 ; 1 Den. R. 556 ; 2 N. Y. R. S. 334. 508 LAW OP LANDLORD AND TENANT. [CHAP. XIV. CHAPTER XIV. OF POSSESSOEY REMEDIES. SECTION I. THE ACTION OP EJECTMENT. § 698. After the tenancy has expired, by its own limitation, or has been terminated by acts of the parties, as by a forfeiture, non- payment of rent, notice to quit, or the like, the landlord's right of possession again becomes complete, and he may at once exercise it, by a peaceable entry upon the premises. But in case the tenant refuses to yield possession, the landlord cannot resort to forcible measures, but must call in the law to his assistance, and receive possession at the hands of the sheriff. The ordinary common-law remedy, by which he proceeds to recover possession, is the action of ejectment ; and this is in fact the only remedy to which he can resort, in any case where the statute has not authorized a summary proceeding for the recovery of possession. It is strictly a posses- sory action, and the party claiming possession recovers on his general right of entry, whether his title be to an estate in fee, for life, or for years.^ At common law, in order to support the fiction of a lease, entry, and ouster, upon which the action was founded, an actual entry upon the land, by the claimant, was necessary before bringing the action, and while on the land he executed a lease to some person who suffered himself to be turned off by a convenient friend, provided for the purpose ; for, according to the old law of maintenance, it was a penal offence to convey a title to another, when the grantor himself was not in possession. The modern action is not confined to the trial of disputed titles, yet the 1 Jackson v. Brownson, 7 Johns. R. 227 ; Penn v. Develin, 2 Yeates 309 ■ Tidd, 1190; 3 Bingh. 308. SBC. I.] THE ACTION OP EJECTMENT. 509 necessity of the formal entry still limits the remedy to cases in which the claimant has a present right of possession, whether the conyentional relation of landlord and tenant subsists or not. The principles of the action remain the same, and although its proceed- ings haye been changed, and much of its quaint and useless machinery abolished, both in England and the United States ; the right to make an entry continues to be requisite, though the entry itself is unnecessary.^ § 699. According to the common-law rule, this action may be brought against any person in possession, by one having a pres- ent exclusive right of possession.^ By the Revised Statutes of New York, no person can recover in ejectment unless he has at the time of commencing the action a valid subsisting interest in the premi- ses claimed, and a right to recover the same, or to recover the possession thereof, or of some share, interest, or portion thereof, to be proved and established at the trial. If the premises for which the action is brought are actually occupied by any person, such occupant must be named defendant in the declaration ; if they are not so occupied, the action must be brought against some person exercising acts of ownership, on the premises claimed, or some interest therein at the commencement of the suit. It can only be maintained for real property corporeal, upon which an entry can be made for something tangible, of which the sheriff can deliver actual possession.^ It does not, therefore, lie for property which in legal consideration is not tangible, as for a mere rent, common in gross, watercourse, or other incorporeal hereditament which passes only by grant.* But in general it lies for any thing demis- able, as for a' common appendant or appurtenant, watercourse, fishery, or the like, if demanded with the land in respect of which it is claimed ; for the sheriff, in giving possession of the land, gives possession of the hereditament.^ The reservation to the grantor, 1 Hawk V. Senseman, 6 S. & R. 21; oyer, 10 Johns. K. 368; The King v. Mel- Clay V. White, 1 Munf. 162 ; Lessee of lor, 2 East, E. 190 ; Goodtitle dem. Mil- Kugge V. EUis, 1 Bay, R. 107 ; Young v. ler v. Wilson, 11 *. 345. Irwin, 2 Hay. E. 11 ; White v. St. Gui- " Child v. ChappeU, 5 Seld. E. 246. ron's, 1 Minor, M. E. 331 ; Taylor v. * Jackson dem. Loux v. Buel, 9 Johns. Buckner, 2 Marsh. E. 19 ; Sherman v. E. 298 ; Jackson dem. Saxton v. May, 16 Irvine's Lessee, 4 Cranch, 369. In Ala- ib. 184; Black v. Hepburne, 2 Yeates, E. bama, the action of trespass to try titles 331 ; Farley v. Craig, 3 Green, E. 192 ; 3 has been substituted for the actions of Bl. Com. 206 ; Challoner v. Thomas, Yelv. ejectment, and trespass for mesne profits, 143 ; Adamson's Eject. 21. and performs the office of both. Bullock * Baker v. Roe, Car. Kemp. Hard. 127 ; V. Wilson, 3 Porter, E. 382. New v. Holdmyfast, Stran. 54 ; Bull. N. P. 2 Colston V. McVay, 1 Marsh. (Ky.), 99. R. 251 ; Jackson dem. Livingston v. Sel- 43* 510 LAW OF LANDLOED AND TENANT. [CHAP. XIV. " of the right and privilege of erecting a mill-dam at a certain place described, and to occupy and possess the said premises with- out any hinderance or molestation from the grantee," is such an interest in the land as may be recovered in ejectment.^ But the grant of a privilege to erect a machine, and building on land, with- out defining the place where they are to be erected, or the quantity of ground which is to be occupied, does not, without an actual entry and location, confer a right to this action.^ § 700. At common law, also, when a lease for years was granted to a tenant, and the right of possession thereby transferred to him, the landlord could not legally enter upon the land during the con- tinuance of the term ; and was, consequently, without remedy to recover back his possession whilst the term lasted, although the tenant should neglect to pay rent, or otherwise disregard the con- ditions of his grant.^ This, upon a lease of any consequence, became a serious evil to landlords, for the tenant might be so indi- gent as to render an action of covenant upon the original lease altogether useless, and the premises might be left witliout a suffi- cient distress to satisfy the rent. In order to obviate this difficulty, the practice was adopted to insert in the lease a proviso, declar- ing the lease forfeited if the rent remained unpaid for a certain time after it became due, or .if any other covenant was broken by the lessee, and empowering the landlord to re-enter and re-occupy his lands ; and witlaout such a clause in the lease, as we have observed in treating of the subject of a breach of condition, he would not be entitled to re-enter. We have already had occasion to notice the embarrassing particularity necessary to be observed in making a demand of rent, in order to take advantage of a for- feittire for its non-payment. The provisions of the statute 4 Geo. II. c. 28, dispensing with the technicalities of the common-law demand, where six months' rent is in arrear, and there is no suffi- cient distress upon the premises, have been generally adopted in the United States, except in Pennsylvania, where the common law prevailed until very recently.* § 701. If upon the trial of such a cause in New York, it shall be 1 Jackson dem. Loux v. Buel, supra. ment of rent without any previous de- 2 Jackson dem. Saxtou v. May, supra. mand, the tenant having a right to remain 8 Jackson dem. Van Rensselaer v. Ho- by paying the rent and costs at any time gaboom, 11 Johns. E. 163. before judgment. Maidstone v. Stevens, * McCormick v. Connell, 6 S. & R. 151. 7 Verm. K. 487. In Vermont, ejectment lies for non-pay- SEC. I.] THE ACTION OF EJECTMENT. 511 proved, or if upon judgment by default against the defendant it shall appear to the court, by affidavit, that the landlord had a right to commence the action, according to the provisions of this section of the statute, the plaintiff in the action will have judgment to recover the possession of the demised premises and his costs, and the court will award execution therefor.^ A recent statute of the same State has also provided an additional mode of re-entry, in cases where there may be sufficient goods on the premises to satisfy the rent, by substituting a fifteen days' notice of the landlord's intention to re-enter, instead of showing that there was no sufficient distress on the premises. This enactment seemed to follow, as a necessary consequence of abolishing distress for rent; but we have already discussed this subject under the head of conditions, and need not, therefore, enlarge upon it in this place." § 702. Where the tenancy has terminated, by lapse of time, or by the death of the person upon whose life the estate was limited, a right of entry at once vests in the lessor, and no previous demand is necessary, as a preliminary to an action of ejectment.^ But in case of a tenancy at will, or from year to year, notice to quit must be first served upon the tenant in possession ; for it is only after the relation of landlord and tenant has ceased to exist that the with- holding of the premises becomes unlawful, and the landlord's right of possession commences. We have seen, in a former part of our work, when and under what circumstances a notice to quit is necessary; and it may be further observed that there are cases where, although no technical notice to quit is required, yet a rea- sonable demand of possession is necessary to complete the land- lord's right of action. Thus where a party is let into possession, pendiag a negotiation for a sale or lease, a demand of possession, or something equivalent, is necessary ; because, being let into pos- session, he becomes a tenant at will until such tenancy is deter- 1 2 R. S. 505. The affidavit entitling of the service: it is enough if the day of the plaintiff to judgment, on the default the demise be after the rent became due ; here referred to, may be tiled in the clerk's for the title of the lessor must be taken to office, and no motion in court is necessary have accrued on the day when the forfeit- for the purpose. Livingston v. Conner, 7 ure would have accrued at common law. Wend. E. 521. And though, by the sta- by the non-payment of rent. Doe dem. tute, the service of the declaration is sub- Lawrence v. Shawcross, 3 B. & C. 752. stituted for the formal demand of rent, ^ Ante, § 301. which, at common law, must have been ' At the expiration of a lease of land, made upon the day when the forfeiture a building erected thereon by the lessee accrued, in case of non-payment, still it is was wrongfully continued upon the lot, by not necessary that the day of the demise those claiming under him. Ejectment ' in the declaration should be the very day being brought for the lot alone, by metes 512 LAW OP LANDLOBD AND TENANT. [CHAP. XIT. miiied.i And if a tenant hold over after the termination of his lease, being in treaty for a new one ; ^ or a party be let into posses- sion under a void or imperfect lease ; ^ in either case, the entry being lawful, the possession remains so until his right of possession is determined by a demand of possession/ Any thing, however, that amounts to notice to him that his possession will be considered unlawful, appears to be equivalent to a demand of possession ; thus a threat to take measures to recover possession was held a sufiScient demand.5 But a disclaimer of the plaintiff's title, by the party in possession, renders a demand iinnecessary ; ^ and a demand of the wife of the party on the premises is sufficient.^ § 703. We have seen that, at common law, a mortgagee may eject a mortgagor who is in possession of the mortgaged premises, on non-payment of the mortgage-money upon the day stipulated, without giving notice to quit, or even making any demand of pos- session, although the Revised Statutes have abolished the action of ejectment in such a case in New York. And where the premises are demised to a third person, subsequent to the mortgage, the mortgagee may maintain ejectment, whether the demise were for a term of years, or from year to year, without giving any notice to quit, for the lessee is not tenant to the mortgagee.^ But if the premises were demised previously to the mortgage, then the mort- gagee, after giving notice of the mortgage to the tenant, and requiring him to pay rent to him, may maintain an action for use and occupation against such tenant, and treat him in eyery way as and bounds against parties occupying sep- well as six months' rent in arrear ; and arately the different stories of the build- it is still necessary for the lessor to com- ing, it was held that the action would lie ply with all the formalities of the common against all the defendants, as being joint law, before he can proceed upon a clause trespassers on the land, in using it to up- of re-entry for non-payment of rent, if a hold the building, and that the plaintiff sufficient distress can be found. Doe was not bound to elect against which one dem. Poster v. Wandlass, 7 Term R. 117 ; she would proceed. Pearce et al. v. Ferris's Jackson v. Wy ckoff, 5 Wend. R. 63 ; Jack- Ex'rs, 10 N. Y. R. 280. son dem. Welden v. Harrison, 17 Johns. J Right V. Beard, 13 East, 210 ; Doe R. 66. But an insertion in the proTiso, dem. Gray v. Stanton, 1 M. & W. 700. that the right of re-entry shall accrue 2 Doe V. Stennett, 2 Esp. R. 717. upon the rent being lawfully demanded, s Doe V. Edgar, 2 Bingh. N. C. 508. will not render a demand necessary if * Dennti. Rawlings, lOEast, 261 ; Doe there be no sufficient distress; for it is V. Jackson, 1 B. & C. 448. only stating in express words that which 6 Doe V. Price, 9 Bingh. 356 ; Ball v. is in substance contained, fi-om tlie princi- CulUmore, 2 C. M. & R. 120. ciples of the common law, in every pro- 's Doe V. Thompson, 1 N. & P. 215. viso of this nature. Doe dem. Schofield f Doe V. Street, 2 A. & E. 329. The v. Alexander, 2 M. & S. 825; Ludwoll v. statute 4 Geo. II. dispenses with a demand Newman, 6 Term R. 466. for rent in those cases only where there is * Evans v. Elliot, 9 Ad. & El. 342 ■ 1 no sufficient distress upon the premises, as Doug. 21 ; 3 East, 449. SEC. I.] THE ACTION OP EJECTMENT. 513 tenant, and as if himself were 'the assignee of the reversion.^ Yet he has no other or greater rights than the mortgagor liad ; and, therefore, if the premises were demised from year to year, the mortgagee cannot maintain ejectment against the tenant, without first determining the tenancy by a notice to quit ; or if tlie premi- ses are leased for a term of years previous to the mortgage, the mortgagee cannot maintain ejectment until after the expiration of the term.^ If the action be brought against one who became ten- ant to the mortgagor since the mortgage, the declaration should be upon the demise of the mortgagee only. But if against one who was tenant to the mortgagor before the mortgage, it may be on the demise of the mortgagee alone, or on the several demises of tlie mortgagor and mortgagee, but not on their joint demise.^ The defendant may avail himself of any defence which his lessor, the mortgagor, might set up, if he had appeared ; but he cannot set up the title of a third person. And where, in ejectment on the several demises of a mortgagor and mortgagee, the defendant offered to prove that seven or eight years back, and after the exe- cution of the mortgage, he brought ejectment against the mortga- gor, who was then in possession ; that the cause was referred to arbitration, and that the award was in favor of him, the present defendant, who thereupon entered under a writ of possession, and had occupied the premises ever since ; it was held that these pro- ceedings were not admissible in evidence against the mortgagee, although he was present at one of the meetings before the arbitra- tor, but took no part in the proceedings.* And the mere fact of the mortgagee having received interest on his mortgage, down to a time subsequent to the date of the demise in the declaration, is no recognition of the right of the mortgagor to the possession, up to the time such interest was paid, so as to be a defence for a defend- ant who was tenant to the mortgagor.^ § 704. With respect to the requisites of the complaint in an action of ejectment, we may observe, that it is necessary to describe with particularity the nature of the property demanded. Thus when a common is to be recovered, it must be described as append- ant or appurtenant to certain land ; if a watercourse, as land covered with water. ^ But although a plaintiff must truly describe 1 Moss V. Gallimore, 1 Doug. 279. ' Doe v. Cadwallader, 2 B. & Ad. 473. 2 Doe V. Wharton, 8 T. K. 2. ^ Co. Lit. 4, a; Challoner v. Thomas, 3 Doe V. Adams, 2 Cr. & J. 232. supra; 1 East, E. 441 ; 2 Str. 891. i Doe V. Webber, 1 Ad. & El. 119. 514 LAW OF LANDLORD AND TENANT. [CHAP. XIV. the premises claimed, he is not bound to set forth the nature of the estate, nor the quantity of the interest claimed by him ; and he has been allowed to recover an undivided share, although in his decla- ration he claimed the whole of the premises ; ^ or where he gave evidence of a tract of land, called in the patent Feltigraw's For- tune, which was also known by the name of Pelty's Fortune, and so called in the declaration.^ If he describes the land in his dec- laration by courses and distances, without naming any monument except the point begun at, and without reference to any survey, or to the lines of the lot, he can only recover according to the direc- tion of the magnetic needle, at the time when the action was brought.^ And, as a general principle, the lines of a tract of land originally run by course and distance, without calls, must be con- fined to the courses and distances, and cannot be extended beyond them.* The ancient rule required the description of the premises to be so certain, that the sheriff might know exactly of what to deliver possession ; and such is still the rule in some of the States.^ But that rule was subsequently abolished in England ; and it is their practice for the sheriff to deliver possession of the premises recovered, according to the directions of the claimant, who therein acts at his own peril.^ This relaxation of the rule, however, opened the way to numerous and vexatious applications to correct errors of the sheriff in delivering possession ; in consequence of which, the Supreme Court of New York laid down the rule, that where a general verdict is given for the plaintiff, he is restricted to the taking possession of so much only as he gave evidence of his title to on the trial.'' § 705. No proof of title is required in this action when it is brought by a landlord, since if a tenant has once recognized the 1 Harrison v. Stevens, 12 Wend. R. New York require that the premises shall 170; Van Alstyne w. Spraker, 13 *. 578. be described with convenient certainty, 2 Fowke V. Kempis's Lessee, 5 Har. & designating the number of the lot or town- Johns. 135. stiip, if any, in which they are situated ; if 3 Brooks V. Tyler, 2 Vern. E. 348. none, stating the names of the last occu- * Giraud's Lessee v. Hughes, 1 Gill & pants of lands adjoining the same, if any ; Johns. 249 ; Thomas v. Godfi-ey, 3 ib. 142. if there be none, stating the natural boun- 5 Fenwicks v. Floyd's Lessee, 1 Har. & daries, if any ; and if none, describing GiU, 172; Clark v. Clark, 7 Vern. E. 190 , Sawyer v. Fitts, 4 Stewart & Porter, R, 365; Bindover v. Tindercomb, 2 Ld, Eaym. 1470. such premises by metes and bounds, or in some other way, so that, from such de- scription, possession of the premises claimed may be deUvered. And if the "5 Cottingham v. King, Burr. 623, 630; plaintifi" claims any undivided share or Connor v. West, Burr. 2672. interest in any premises, he shall state ' Seward v. Jackson, dem. Van. Wyck, the same particularly in the declaration. 8 Cow. R. 427. The Revised Statutes of 2 R. S. 304, §§ 8, 9. SEC. I.] THE ACTION OP EJECTMENT. 515 title of the plaintiff, and treated him as his landlord, by accepting a lease of him, or the like, he is precluded from showing that the plaintiff had no title at the time the lease was granted ; ^ for it is a general rule, founded on reasons of public policy, that a tenant shall never be permitted to controvert his landlord's title, or set up against him a title acquired by himself during his tenancy, which is hostile in its character to that which he acknowledged in accept- ing the demise.^ And this rule extends to a tenant holding over, as well as to an under-tenant, assignee, or other person claiming under the lessor ; ^ and is applicable to every species of tenancy, whether for years, at will, or by sufferance.* As a tenant is not permitted to resist the recovery of his landlord, by virtue of an adverse title acquired during the tenancy,^ if he takes a lease from a third person, it is void, and cannot work an adverse possession against his landlord ; for the possession of a tenant is the posses- sion of his landlord.^ Nor can he render his possession adverse, except by an open and notorious act ; for if he takes a secret con- veyance in fee, of the land, from one claiming to be owner, and keeps it secret, the character of his possession is not changed. So an adverse claimant, who gets into possession of land by tampering with the tenant, cannot resist the landlord's claim, where the ten- ant himself could not.' But a lease unfairly or fraudulently obtained from a party already in possession of the land will not prevent him from contesting the title of the lessor. And a tenant may acquire and set up a title consistent with that admitted by the demise ; as if he purchase the premises at a tax sale, made during 1 Townsend v. Davis, Forest, 120 ; 10 Har. & Johns. 533 ; Trustees, &c., v. Wil- East, E. 158; Doe dem. Jackson v. Wil- Hams, 9 Wend. E. 147. kinson, 8 B. & C. 413 ; Berwick v. Tliomp- '' Lessee of Galway ;;. Doyle, 2 Binney, son, 7 Term R. 488; Doe v. Pegge, 1 472; Graham v. Moore, 4 S. &R. 467; Term R. 768. Ante, § 629. Bleecker v. Whitford, 2 Gaines (N. Y.), 2 Jackson dem. Colton v. Harper, 5 E. 205. Wend. R. 246 ; Sharpe v. Kelley, 5 Denio, ^ Jackson v. Miller, 6 Cow. 751 ; Le- 431 ; Doe v. Lady Smythe, 4 M. & S. 147 ; catt v. Stewart, 2 Stew. E. 474 ; Johnson Doe V. Baytrup, 3 A. & E. 188; s. c. 4 v. Hinman, 10 Johns. R. 292. The pos- N. & M. 537 ; 3 1?. & D. 197. session of the tenant is to be deemed the 8 Jackson v. Stiles, 1 Cow. E. 575; possession of the landlord, until twenty Graham v. Moore, 4 Serg. & E. 467 ; years after the termination of the ten- Jackson V. Harsen, 4 Johns. E. 202 ; Lewis ancy ; or, if there was no written lease, V. WiUis, 1 Wils. E. 313; Eichmond v. after the last payment of rent; notwith- Thompson, 7 Term E. 488; Taylor v. standing the tenant may have acquired Needham, 2 Taunt. R. 278 ; Wood v. Day, another title, or claimed to hold adversely. 1 B. Moore, 389; 1 P. & D. 183; D. & 2 N. Y. E. S. 294, § 13 ; Code of Pro. § 86 ; Ey. N. P. C. 1 ; lagraham v. Baldwin, 5 and see Failing v. Sehenck, 3 Hill, R. 344. Seld. R. 45. ' Stewart v. Roderick, 4 Watts & Serg. * Love V. Dennis, 1 Harp. E. 70 ; 188 ; Galloway v. Ogle, 2 Binn. R. 468 ; Williams v. The Mayor of AnnapoUs, 6 6 ih. 59-62 ; Sharpe v. Kelley, supra. 516 LAW OF LANDLORD AND TENANT. [CHAP. XIV. his term.i Or where the landlord threatens to turn the tenant off the land by force of arms, unless he will consent to take a lease ; for the general rule is founded on the presumption of the lease being taken without fraud, force, or illegal behavior on the part of the lessor .2 A tenant at sufferance, who is turned out of possession by his landlord, without any demand of possession, cannot maintain ejectment, although he may have an action for the trespass.^ § 706. Where the lease is ly deed, a tenant is teclmically es- topped from disputing his landlord's title, who is only required to produce the counterpart of the lease on the trial.* Where the lease is ly 'parol, it will not be necessary for him to give any evidence of his title anterior to the lease ; for a holding under a plaintiff, and the expiration of the tenancy, are the only things to be proved in ordinary cases.^ Even an acknowledgment by the defendant, that he went into possession under the plaintiff, is suffi- cient to entitle him to recover ; it being a simple matter of fact for the jury to determine, whether the defendant held under the plain- tiff or not.^ But evidence of an agreement for a lease between the lessor in ejectment and the tenant will not enable the plaintiff to recover possession, when there is no proof that any lease was ever executed, or rent paid, and the tenant claims to hold adversely.^ The non-payment and non-demand of rent for twenty years will not raise a presumption that the landlord's title is extinguished, by a 1 Miller v. McBrien, 14 S. & E. 682; another. Parry v. House, 1 Holt, 489; Brown v. Dysinger, 1 Eawle, R. 408 ; Achorne v. Gomme, 2 Bingh. 54. He Hockenbury v. Snyder, 2 W. & S. 240 ; may, however, dispute the title of an as- Newman v. Rutter, 8 Watts, R. 54 ; 6 ib. signee of the reversion. Carrick v. Bla- 44 ; Isaac v. Clark, 2 Gill, R. 1 ; MiUer v. grove, 1 B. & B. 531. But where A. Bonsaden, 9 Ala. R. 317. hires apartments by the year of B., who 2 Hamilton v. Marsden, 6 Binn. R. 45 ; afterwards lets the entire house to C, 14 S. & R. 882; 8 Harris, 60. In an ac- who sues A. for use and occupation, A. tion under the statute of New York to re- cannot impeach C.'s title. cover possession of land for the non-pay- ^ Wood v. Day, supra ; Wilkins v. Win- meut of rent, the tenant may plead and gate, 6 Term R. 62 ; Roe v. Davis, 7 show a partial eviction from the easement East. R. 862. In ejectment upon a clause which formed a portion of the demised of re-entry, for non-payment of rent, premises, by way of counter-claim and against the assignee of the term, the lessor equitable defence, and is not driven to a proved, by the subscribing witness, the cross action. Blak v. Claxton, 18 N. Y. execution of the counterpart of the lease ; R. 529. and it was held sufficient, without produ- 8 Doe dem. Harrison u. lUurrell, 8 C. cing the lease itself, or proving that notice & P. 134. A tenant cannot dispute the had been given to the defendant to pro- title under which he gained possession, duce it. Roe v. Davis, 7 East, 363. Butler V. Mills, 2 A. & E. 17 ; De Rent- ^ Jackson v. McLeod, 12 Johns. R. 182. zen V. Lewis, 6 N. & M. 672 ; Hall ;;. But- <^ Jackson v. Dobbin, 3 Johns. R. 228, ler, 10 A. & E. 204. Though he is pre- 499 ; Jackson v. Stewart, 6 Johns. R. 84 ; pared to show that the premises have 7 ib. 157. been fraudulently conveyed to the land- ' Jackson v. Cody, 2 Johns. Cas. 223. lord, and that the actual title is vested in SEC. I.] THE ACTION OP EJECTMENT. 517 conveyance to the tenant or otherwise ; for the possession of the one not being consistent with the title of the other, a conveyance from such other will never be presumed, for the purpose of quieting the possession. Neither will the tenant be allowed to show that the landlord has acknowledged by parol that the title was in another .^ But the rule that a tenant is precluded from denying the title of his landlord is not to be extended so as to estop him from denying the validity of rights which had no existence when he took posses- sion.2 § 707. There is a difference, also, whether the party has received possession from the lessor of the plaintiff, or has merely admitted his title by paying rent. In the former case, he is estopped from denying it, without any title at all ; ^ but in the latter, the defend- ant may rebut the presumption arising from such payment, by showing that he paid the rent under a mistake, or through misrep- resentation.* Even an express agreement with one who claims to be landlord does not preclude the tenant from afterwards showing that the party claiming had no title ; and that the payment, or other acknowledgment, was induced by misrepresentation, or under mistake, the tenant not having been originally let into possession by the claimant.^ But he cannot show that his lessor had only an equitable title, or that his title was probably defective.^ Nor can the tenant of a mortgagor set up the title of the mortgagee to an action brought by his lessor.^ Although he cannot show that his lessor had no title to the premises when the tenancy commenced, he may show that the landlord holds in violation of the laws of the State,^ or that his interest has since expired, — as that he has sold and conveyed the land, or that he has been evicted by title para^ 1 Jackson v. Davis, 5 Cow. E. 123. In ^ Rennie v. Robinson, 1 Bingh. 147 ; 10 an action by the lessee against the assig- ib. 549 ; 1 Bingh. N. C. '45 ; Doe dem. Hig- nee of a lease, the plaintiflF having proved ginbotham v. Barton, 3 P. & D. 197. the delivery of the original lease to the * Fenner v. Duplock, 2 Bingh. 10 ; Eo- defendant, and the execution of the conn- gers v. Pitcher, 6 Taunt. 202 ; 1 Bingh. 38 ; terpart, the defendant put in the original 8 ib. 474 ; 2 Bingh. N. C. 572 ; 7 A. & E. lease, which was produced by a party to 447 ; 3 P. & D. 197 ; 4 Scott, N. E. 796. whom the defendant had assigned it, by * Claridge v. McKenzie, 4 Scott, N. R. deed reciting the lease ; it was held unne- 796; 3 Bingh. E. 474; 4 Taunt. 720; 11 cessary for the plaintiff to call the sub- Ad. & EI. 307 ; Doe v. Brown, 7 Ad. & scribing witness to prove the execution of El. 447. the lease, because a party is never allowed ^ Blake v. Foster, 8 Term E. 487 ; to dispute the execution of a deed, after Driver v. Laurence, Black. E. 1259. having taken, under such deed, all the in- ' Doe dem. Bristowe v. Pegge, 1 Term terest it was calculated to give. Burnett E. 768. V. Lynch, 5 B. & C. 589. * Satterlee v. Matthewson, 13 Serg. & 2 Eyers v. Farwell, 9 Barb. E. 615 ; E. 133. Despard v. Walbridge, 15 N. Y. E. 874. 44 518 LAW OP LANDLORD AND TENANT. [CHAP. 2IV. mount, — and that, therefore, he has no right to bring the stiit.^ So he may show that the lessor was only seized in right of his wife, for her life, and that she died before the covenant was broken ; ^ or that the lessor being executor, durante minori cetate, the infant has since come of age.^ A defendant entering without title, and after- wards agreeing to purchase of the lessor of the plaintiff, was held to have recognized him as landlord, and was not permitted to dis- pute his title.* But where a tenant was in possession under an adverse title, and applied to the lessor of the plaintiff to purchase, and requested to be considered as his tenant, he was permitted to show that the application was founded in mistake, or that the fee existed in himself, or oiit of the lessor.^ § 708. According to the New York statute, a tenant whose lease has not actually expired may be re-instated in his possession. At any time before judgment in the cause, he may either tender to the landlord, or bring into court where the suit is pending, all the rent in arrear at the time of ,such payment, with costs ; and all further proceedings in the cause must cease. And, at any time within six months after the landlord obtains possession under an execution upon such judgment, the lessee, his assigns, or personal representa- tives, may tender to the lessor, his representatives, or attorney, the rent due, with costs, and all farther proceedings are then to cease ; and the premises must be restored to the lessee, who will hold the '' Moore v. Beaseley, 3 Ham. (Ohio) should be 'behind and unpaid by the space E. 924 ; Caufman v. The Congregation, of fourteen days next after any or either &c., 6 Binn. 62 ; Dimond v. Enoch, Addis, of the said days of payment, on which the E. 357 ; Marley f. Sogers, 5 Yerg. E. 217 ; same ought to be paid, and no sufficient Jackson v. Eowland, 6 Wend. E. 666 ; distress being found in and upon the same Binney v. Chipman, 5 Pick. E. 124 ; Wil- premises, whereby to levy such rent ; " at lison V. Watkins, 3 Peters, E. 43 ; Wells Lady-day the rent became due, and, not V. Mason, 4 Scam. (111.) E. 85; Franklin being paid, the landlord, in May, sent a V. Carter, 1 C. B. 750 ; Walter v. Water- bailiff upon the premises, for the pm-pose house, 2 Wm. Saunds. 418, note; Luns- of making a distress; nothing being found ford V. Turner, 5 J. J. Marsh. 104 ; Swan on the premises, he brought an ejectment V. Wilson, 1 A. K. Marsh. 99 ; Howell u. to recoyer possession. It was objected, Ashmore, 2 Zabr. 261. that, in order to establish a forfeiture, it ^ Blake v. Foster, 8 Term E. 487. ought to have been shown that there was s Andrews v. Pearce, 1 N. E. 158. It no sufficient distress for fourteen days is a good defence to an action of ejectment after the rent was due, as well as that the for a forfeiture, that the landlord, after the rent was in arrear, whereas it was only execution of the lease, conreyed away his proved that there was no sufficient dis- title to the premises. Marriott v. Edwards, tress on one day in May, which might 5 B. & Ad. 1065. have been the case upon that one day * Jackson v. Whitford, 2 Caines, E. 2, only ; but the court thought this was pii- 215 ; Jackson v. Vosburgh, 7 Johns. E. 188. md facie evidence to entitle the plaintiff to 5 Jackson v. Cureder, 2 Johns. Cas. call upon the defendant to show that there 853 ; Jackson v. Newton, 18 Johns. E. was sufficient distress upon the premises, 365. A lease contained a proviso for re- within the terms of the proviso. Doe entry, "in case the rent, or any part, dem. Smelt v. Fuchau, 15 East, E. 286. SEC. I.J THE ACTION OF EJECTMENT. 519 same without any new lease, and according to the terms of the original demise. Bnt if the rent and costs remain unpaid for six months after the execution shall have been executed, the lessee, and all persons deriving title under him, shall be barred from all relief in law or equity (except for error in the record or proceed- ings), and the lessor or landlord will from thenceforth hold the premises dischai-ged from the lease. But a mortgagee of the lease, or any part thereof, not in possession of the premises, who shall, within six months after the execution shall have been executed, pay the rent and costs, and perform all the agreements, which ought to be performed by the first lessee, will not be affected by the recovery in ejectment.^ § 709. A tenant may also be relieved in equity ; for the same statute further enacts, " The lessee, or any person claiming any interest in such lease, may, within six months after execution executed on such judgment, file his biU in equity for relief, biit not after that time, and if relieved in such court, he shall hold the premises without any new lease thereof, according to the terms of the original demise. But the complainant in such a bill shall not have an injunction against proceedings at law on such ejectment, unless he shall bring into court the amount the lessor shall in his answer have sworn to be due and in arrear, over and above all just allowances, and also all the costs taxed in said suit, there to remain until the hearing of the cause, or to be paid to the lessor, or good security, as the court may direct. If the lessor shall have entered into the actual possession of the demised premises, the court may direct, that so much, and no more, as he shall really have made of the said premises during his possession thereof, or as might, with- out wilful neglect, have made of them, be deducted from the amount of the rent in arrear to such lessor, and the costs of the ejectment, and the complainant shall be required to pay the balance before he shall be restored -to the possession of the premi- ses." ^ § 710. After a judgment in ejectment, the plaintiff is entitled to recover the mesne profits of the land, that is, a fair compensation for its use during the time he was excluded from the possession by the 1 2 R. S. 505, §§ 28-32. And this he Pr. R. 289. And see 3 Taunt. R. 402, as may do whether the proceeding to re- to the right of a mortgagee of the lease to enter he by action at common law, or redeem, under the statute authorizing summary ^ 2 E. S. 505, §§ 33-38. proceedings. Corning v. Beach, 26 How. 520 LAW OP LANDLORD AND TENANT. [CHAP. XIV. wrongful act of the defendant. He may, also, maintain this latter action, where he obtains possession without suit, or without prose- cuting an ejectment-suit to judgment; even though it should appear that he had, before the ouster, entered into an executory contract for a sale of the premises, and that the vendee was in pos- session at the time of the ouster.^ The plaintiff's title has relation back to the time when his right of entry first accrued, and he is considered, for all purposes of the recovery, to have been in posses- sion from that time. The possession of any one who holds him out during that time is consequently wrongful, and, by the common law, he may bring an action of trespass to recover damages for the mesne profits? These profits, as they are termed, prior to the day of the demise laid in the declaration, may also be recovered in an action for use and occupation, if the plaintiff thinks proper to waive the tort.8 But use and occupation will not lie for rents and profits accruing subseqtiently to that day, as it implies a contract, and the plaintiff, having in the ejectment treated the defendant as a tres- passer, at a period subsequent to the demise, is estopped from also treating him as a tenant, and bringing an action for use and occu- pation, the one position being manifestly inconsistent with the other.* And when a tenant holds over after the expiration of the landlord's notice to quit, the landlord, after a recovery in eject- ment, may waive his action for mesne profits, and maintain debt under the statute, for double the yearly value of the premises, during the time the tenant holds over ; for double value is given by way of penalty, and not as rent.^ § 711. The action lies, as we have said, against any party in actual possession of the land ; but where an under-tenant holds over, after the expiration of the lessee's interest, the latter is not liable for the mesne profits, unless he has made himself a party to the trespass, by receiving rent from the under-tenant, for the time during which he held over, or the like.^ The defendant in such an 1 Leland v. Tansey, 6 Hill (N. Y.), E. not liable to the real owner in an action of 328. trespass for mesne profits. Aden v. 2 Dewey v. Osborn, 4 Cow. E. 329 ; 1 Thayer, 17 Mass. E. 298. Saund. 277, a. ^ Timmins v. Eowllnson, Burr. 1603 ; 3 Van Alen o. Eogers, 1 Johns. Cas. 1 N. Y. E. S. 745, § 10. A recovery in 281 ; Goodtitle v. North, Doug. 584 ; Doe trespass for mesne profits is only for the dem. Cheney v. Batten, Cowp. 243. use and occupation of land, and does not * Birch V. Wright, 1 Term E. 378, 387. bar an action of trespass quare dausumfre- Where a lessee enters upon land, under a git, for injuries done to the premises dur- lease from one in possession claiming ing the same period. Gill v. Cole, 1 Har. title, and the lessor is himself afterwards & Johns. R. 403. evicted by title paramount, the lessee is ° Chirac i/. Eeinicker, 11 Wheat. E. SEC. I.j THE ACTION OF EJECTMENT. 621 action may plead in bar of the claim, any matters of defence, that would be available in an action of debt for rent ; and, in general, any thing, but such as was, or might have been, controverted in the action of ejectment ; as, for instance, that he was not in possession of the premises, or, that he only remained in possession a certain time, or the like.^ He may also avail himself of the statute of limitations;^ but a discharge under a bankrupt or insolvent law is no bar, as the action is for unliquidated damages.^ He may also deduct any ground-rent that shall have been paid by him ; and may set off the value of such permanent improvements made by him on the premises, as he was authorized to make, to the amount of the plaintiff's claim.* § 712. As the action for mesne profits is in form an action of trespass, it cannot be maintained against executors and administra- tors, for the profits accruing during the lifetime of the testator or intestate ; ^ nor will a court of equity interfere to enforce the pay- ment of them against personal representatives, when the lessor has been deprived of his legal remedy by the mere accident of the de- fendant's death. But where the lessor was delayed from recovering in ejectment by a rule of a court of law, and by an injunction at the instance of the defendant, who ultimately failed both at law and equity, the court decreed an account of the profits against the defendant's executors.® The issue, when joined, is to be tried as in other cases, and if found for the plaintiff, the jury will assess the danfages, at the amount of the mesne profits received by the de- fendant since he entered into possession. The plaintiff will be required to establish, and the defendant may controvert, the time when the defendant entered into possession ; the time during which he enjoyed the profits, and the value thereof; and an ejectment 280; Burn v. Eichardson, 4 Taunt. E. » Lloyd u. Peel, 2 B. & A. 407 ; Good- 720 ; Boe v. "Wigg, 2 New E. 330 ; Doe v. title v. North, 2 Doug. 584. Harlow, 12 A. & E. 40. * Jackson v. Loomis, 4 Cow. E. 168 ; 1 Jackson v. Eandall, 11 Johns. E. 405 ; Marir ;;. Simple, Addis. E. 215 ; 2 N. Y. Jackson v. Combs, 7 Cow. E. 86 ; Lan- , E. S. 311, § 49. But if the tenant has gendyck v. Burhans, 11 Johns. E. 461 ; 2 ' made improvements on the land, under a B. & A. 662; 2 C. M. & E. 323; 2 Biirr. contract with the owner, he wiU not be 668. allowed for them in this action, when 2 Hare v. Furey, 3 Yeates, 13 ; Bui. brought by a devisee, but must seek his N. P. 88 ; 2 E. S. 311, § 50. In trespass compensation from the personal represen- for mesne profits after a recovery in eject- tatives of the devisor. Van Alen v. Eo- ment, the plaintiff cannot give evidence gers, 1 Johns. Cas. 281. See also, Hyt- of the annual value of the premises be- ton v. Brown, 2 Wash. C. C. E. 165. yond the time of the lease mentioned in ^ The statute of New York furnishes the declaration. Shotwell v. Bohem, 1 an exception to this rule. 2 E. S. 51. Dal. E. 172. " Poulteuay v. Warren, 6 Yes. Jr. E. 73. 44* 522 LAW OP LANDLORD AND TENA^NT. [CHAP. XIV. will not, according to the laws of New York, be evidence of sucla time.i But previous to this statute, the record of the recovery in ejectment was conclusive evidence of title in the lessor of the plaintiff from the time of the demise laid in the ejectment, and the defendant could not, in an action for mesne profits, show title in another after that time.^ Except where the judgment in ejectment was obtained by default, in which case an entry must be proved.^ SECTION II. SUMMARY PROCEEDINGS TO RECOVER POSSESSION. § 713. The common-law remedy, by ejectment, to recover the possession of demised premises, from its slow and measured prog- ress, alFords, in a great majority of cases, a very inadequate secu- rity to a landlord ; and while the technical delays thereby thrown in the way prove of little or no utility to an honest tenant, they are apt to be resorted to by an iinprincipled or irresponsible one, to enable him to withhold possession, and bid defiance to his landlord for an indefinite length of time. For the purpose of remedying this evil, the legislatures of most of the States, following the Eng- lish statute 11 Geo. II. c. 19, have provided a summary proceeding, by which the landlord may speedily recover possession of his prop- erty, where a tenant abandons the premises during the term with- out surrendering the lease ; or continues in possession after the expiration of his term ; or has become unable or unwilling to rec- ompense the landlord for the use of the premises.* But these statutes, it is to be observed, are confined to the particular cases 1 2 R. S. 311, §§ 47, 48. obtain possession of demised premises for 2 Dewey v. Osborn, 4 Cow. E. 329 ; 7 arrears of rent, where the premises are ib. 36 ; Marshall v. Dupey, 4 Marsh. 888, not actually occupied, and a declaration in N. s. ejectment cannot be served upon the les- 3 Lessee of Brown v. Galloway, 1 Pet. see or his assignee, or the residence of the R. (Cir. Ct.) 299; and see Jackson dem. latter is not known, so that the service Church V. Hills, 8 Cow. E. 290. cannot be made there, must proceed as at * The statute has not abolished the for- common law, or adopt the summary pro- mal action of ejectment in cases of this ceerfi'njs provided by this statute; and he kind ; but if a landlord thinks proper to cannot proceed by affixing a declaration in resort to such an action, he must proceed ejectment in a conspicuous place on the strictly as at common law, and is bound to demised premises, and then asking the make personal service of the process upon court for a rule to plead. Stratton v. the tenant in possession ; and therefore it Lord, 22 Wend. E. 611. Overruling the was held that a landlord who proceeds to case of Evans v. Moran, 12 Wend. 180. SEC. II.J SUMMARY PROCEEDINGS TO RECOVER POSSESSION. 523 specified in them ; the expiration of the term referred to meaning only an expiration by lapse of time, and not by a technical forfeit- ure ; in which latter case, a landlord cannot proceed under the statute, but must resort to his action of ejectment.^ § 714. And first, with respect to a vacant possession, we may ob- serve, that at common law, a lessor had strictly no right to re-enter upon the land before the expiration of the term, even if the tenant had deserted the premises.^ With a view of obviating this diffi- culty, the New York statute provides, that if any tenant being in arrear for rent, shall desert the demised premises, and leave the same unoccupied and uncultivated, without any goods thereon stib- ject to distress to satisfy the arrears of rent, any justice of the peace of the county may, at the request of the landlord, and upon due proof that the premises have been so deserted, leaving such rent in arrear, and no goods thereon subject to distress, go and view the premises ; and, upon being satisfied that the premises have been deserted, he shall affix a notice in writing upon a conspicuous part of the premises, requiring the tenant to appear and pay the rent due, at some time in the said notice specified, not less than five, nor more than twenty days after the date thereof. At the time specified in such notice, the justice must again view the premises ; if the tenant then appears and denies that any rent is due to the landlord, all proceedings must cease. If, upon such second view, the tenant, or some one for him, shall not appear and pay the rent in arrear, and there shall not be sufficient distress on the premises to satisfy the rent, then the justice may put the landlord into pos- session of the demised premises ; and the demise of the premises to such tenant shall from thenceforth become void.^ 1 Oakley v. Schoonmaker, 15 "Wend, tiee in such case may be made by the E. 226. In Louisiana, where rent is said tenant at any time within three months to be of the essence of the contract of after such possession has been delivered, lease, and a lessee refuses to comply with to the county court of the county where its terms by withholding the rent as it the land is situated, by serving notice comes due, the lessor may have a sum- thereof in writing upon such justice, and mary judgment rescinding the contract by giving security, to be approved by such and restoring the possession. Chase v. justice, to pay the landlord all costs of Turner, 5 Louisiana R. 390 ; Dresden v. such appeal which may be adjudged Cox, 7 Martin, li. 149. "Without a de- against the tenant ; and thereupen the jus- mand of rent on the day it is due, or any tice shall return the proceedings had be- notice to quit. Hyde v. Palmer, 6 Louis- fore him to the said court, within ten iana R. 599. days after such notice and security given, 2 Brown v. Kite, 2 Overt. R. 233; and shall give notice to the landlord of Stratton v. Lord, 22 "Wend. R. 611. See, such appeal. The Court must then ex- ante, § 531. amine the proceedings, and hear the proofs 8 2 R. S. 512, §§ 24-27 ; 4 Geo. II. c. 28. and allegations of the parties in a sum- An appeal from the proceedings of any jus- mary way; and may order restitution to 524 LAW OP LANDLORD AND TENANT. [CHAP. XIV. § 715. Proceedings as upon a vacant possession can only be taken where the premises are actiially abandoned by the former occupant ; if he retains virtual possession, though he does not occupy personally, the landlord must proceed in the regular way pointed out in the statute.^ What amounts to a vacant possession is sometimes difficult to determine. At common law, the mere fact of a tenant's not living upon the premises would not have amounted to a desertion, provided he still occupied them by his goods. Thus, where a publican removed to another house, and left beer in the cellar ; or, where hay was left in a barn ; or it was not known where the tenant lived ; or any person was left on the premises to take care of them, the possession could not be said to be vacant.^ But where a party abandoned the house vsdth his goods, and locked it up, and it was not known where he had gone, it was held to be a clear case of vacant possession.^ It was so held, also, in another case, where the tenant ceased to reside on the premises for some months, and left them without sufficient property to answer the year's rent ; although the landlord knew where the tenant was, and a servant of the tenant's was found upon the prem- ises when the jiistice went to view them.* § 716. It will be observed also, that the statute referred to only gives the remedy in case the tenant deserts the premises, leaving no sufficient distress thereon. But since the abolition of distress for rent, the statute has become virtvially obsolete, and, where the premises are entirely abandoned, it is now unnecessary for a claimant, who has the right of possession, to proceed under any legal process ; for he may enter upon the premises unaided by the law, if he can find an opportunity of doing so without using force ; and if trespass should be brought against him, he may justify the entry under his title .^ In one case, the tenant having absconded while rent was in arrear, the landlord entered into the premises, and then brought an action under the statute, in order to bar the tenant's right, as if the premises had not been vacant. It was held, on a motion to set aside the judgment and execution for irregularity, that in the eye of the law the premises were vacant, and the whole be made to the tenant, with costs to he ^ -Qoe dem. Darlington v. Cock, 4 B. & paid by the landlord ; or, in case of affirm- C. 259. ing the proceedings, may award costs * ^.r parte PiUow, 1 B. & A. 369. against the tenant. 6 Taunton v. Costar, 7 Term R. 431 • 1 2 Dowl. 399-431 ; 3 ib. 691 ; 4 ih. 173. Taylor v. Cole, 3 Term R. 292 ; Rogers v. 2 Savage v. Dent, 2 Str. 1064; Doe Pitcher, 6 Taunt. 202; Turner v. Mey- dem. Atkins v. Roe, 2 Chit. 179. mott, 1 Bingh. 158; see, ante, § 531. SEC. II.] SUMMARY PROCEEDINGS TO RECOVER POSSESSION. 525 proceeding was an absolute nullity .^ But in an action of ejectment for lands belonging to the Holland Land Company, which had been surveyed, and buildings erected on some part of the tract by the company, the proceedings being as for a vacant possession ; the court made a rule to admit the company in the place of the defend- ant, observing that the strict principles applicable to proceedings in ejectment, as for a vacant possession in England, cannot, without manifest hardship and inconvenience, be applied to the unsettled lands of this country .^ § 717. "With respect to the summary proceedings by which a ten- ant may be removed from the demised premises, in case he holds over after the expiration of his term, or refuses to pay rent, we ob- serve that many of the States have adopted substantially the ordi- nary provisions of the English statutes relating to a forcible entry and detainer, and have made them applicable to all cases of an un- lawful detention of property. But this latter proceeding, as we shall presently see, partakes rather of the nature of a criminal pros- ecution, for the punishment of wrong doing, than of a civil action for the restoration of a simple right. For this reason. New York, adhering to this well-defined distinction of remedies, retains the old procedure of forcible entry and detainer, and has a separate proceeding for the removal of a tenant. The statute enacts, " any tenant or lessee at will, or at sufferance, or for part of a year, or for one or more years, of any houses, lands, or tenements ; and the assigns, under-tenants, or legal representatives of such tenant or lessee, may be removed from such premises by any judge of the county courts of the county, or by any justice of the peace, mayor or recorder of the city, where such premises are situated ; or if in the city of New York, by the mayor, recorder, any justice of the marine court, or any one of the assistant justices of the said city, in the manner hereafter prescribed, in the following cases. ^ 1. Where such person shall hold over, and continue in possession of the demised premises, or any part thereof, after the expiration of his term, without the permission of the landlord; 2. Where he shall hold over, without such permission, after any default in the payment of rent, pursuant to the agreement under which the prem- 1 Jackson v. Hakes, 2 Caines, K. 335. any justice of the Superior Court of the 2 Saltonstall v. White, 1 Johns. Cas. city of Buffalo, where the premises are sit- 221 ■ Wood V. Wood, 9 Johns. R. 257. uated within those cities respectively. s' Proceedings may also be taken before Laws, 1849, p. 174; 1857, p. 754. the City Judge of Brooklyn, or before 526 LAW OP LANDLORD AND TENANT. [CHAP. SIV. ises are held, and a demand for the rent shall have been made, or three days' notice in writing, requiring the payment of such rent, or the possession of the premises, shall have been served by the persons entitled to the rent on the person owing the same, in the manner prescribed for the service of summons hereinafter de- scribed ; 3. Where the tenant or lessee of a term of three years, or less, shall have taken the benefit of any insolvent act, or been dis- charged under any act for the relief of his person from imprison- ment during such term ; 4. Where any person shall hold over, and continue in the possession of any real estate which shall have been sold by virtue of an execution against such person, after a title under the sale shall have been perfected."^ § 718. This statute requires notice in writing to be given to a tenant at will, or by sufferance, in order to put an end to tenancies of this description. And it is only after the espiration of such a notice, that the tenant can be said to be holding over, or that an application can be made for process to remove him, under the first subdivision of this section. Previous to issuing the process, the magistrate should therefore be satisfied by affidavit that the tenancy has been terminated as required by the statute. But where a ten- ant for a year holds over after the expiration of his term, without the* landlord's permission, he is not entitled to notice, not being considered a tenant within the meaning of the statute ; and to en- title him to notice at all, the holding-over must be continued for such length of time after the expiration of the term, as to authorize the implication of an assent on the part of the landlord to such con- tinuance. And where a landlord waited three months and twelve days before instituting proceedings, he was held not to be charge- able with laches, especially since it appeared that he had attempted to obtain possession without recourse to coercive measures. ^ Where the default consists merely in the non-payment of rent, it must also be shown that the party entitled to receive it has demanded it when due, or has served three days' notice in writing requiring its payment, or the possession of the premises ; there need not, how- ever, be both a demand and notice.^ The demand may be made of the tenant in possession ; and the notice may be served upon him although he is not the lessee ; and if two tenants hold possession jointly, a demand on one of them is sufficient.* The notice must 1 2 R. S. 513, § 28. = Rogers v. Lynde, 14 Wend. R. 172. 2 Rowan v. Lyttle, 11 Wend. 616. * Geisler v. Acosta, 5 Seld. R. 227. SEC. II.] SUMMARY PROCEEDINGS TO RECOVER POSSESSION. 527 be delivered to tlie tenant, or to some person of proper age resid- ing upon tlie premises ; or, if the tenant cannot be found, and there is no sucli person residing on the premises, it may be served by affixing the notice upon a conspicuous part of the premises, where it may be conveniently read.^ § 719. The jurisdiction of the assistant justices of the city of New York, under this section, extends over the whole city, and is not limited to the wards for which they were appointed ; and it is immaterial where the parties reside, or the premises are situated.^ But any judge who issues a warrant to dispossess a person, without having properly obtained jurisdiction of the matter, is a trespasser, and liable to an action, although the person dispossessed came ille- gally into possession.^ And even if the tenant appears, and litigates the matter upon its merits, without objecting to the jurisdiction, still the magistrate gets no jurisdiction, unless it is conferred by the affidavit.* As a general rule, however, where the subject- matter of a suit appears to be within the jurisdiction of the court, but the want of jurisdiction is to the person or place, unless such defect appears on the process given to the officer who executes it, he is not a trespasser ; but where the subject-matter is not within the jurisdiction, every thing done under the warrant is absolutely void, and the officer is a trespasser.^ § 720. The statute applies only to cases where the conventional relation of landlord and tenant subsists, and not where it is created merely by operation of law.^ It applies, however, in favor of as- signees of the reversion, as well as of the lease, for they succeed to all the rights of the original landlord.^ Where the case made by the 1 This notice is required to he served in of any of the conditions therein contained ; the same manner as a summons is served ; but the Court of Appeals held that such a as to which, see, post, § 722. The statute, covenant could not confer jurisdiction to it will he observed, is in the alternative proceed under this statute, nor preclude that a demand of rent has been made, or the lessee from objecting a want of juris- notice in writing given; and, forasmuch diction; that the law and not the consent as doubts are suggested whether the de- of parties confers jurisdiction, and that the mand should not, in all cases, be a strict rule could have no practical force if con- common-law demand, it will generally be sent, given in any form, could preclude in- prudent to base the proceeding upon no- quiry as to the lawfulness of the jurisdic- tice, wherever a doubt exists as to the suf- tion. ficiency of the demand. For various * Campbell v. Mallory, 22 How. Pr. E. forms of notice to quit, see Appendix 183. XXVIII. ^ 10 Co. R. 75 ; Hardr. 480 ; Evertson 2 Roach V. Cosine, 9 "Wend. 227. v. Sutton, supra. 8 Evertson v. Sutton, 5 Wend. R. 281. ^ Evertson v. Sutton, supra; Birdsall». In Beach v. Nixon, 5 Seld. E. 35, there Philhps, 17 Wend. R. 464. was a clause in the lease, authorizing the ' Walter v. Van Winkle, 10 Martin, R. landlord to proceed and disposses the ten- 289 ; Brown v. Betts, 13 Wend. R. 29. ant under this statute, upon the breach 528 LAW OP LANDLORD AND TENANT. [CHAP. XIT. affidavit showed that the alleged tenant had conveyed the premises to the party who instituted the proceedings, stipulating that he should retain possession until a certain period, and stated that he held over and continued in possession, although that period had elapsed, and had received a month's notice to quit ; it was held that these facts did not constitute a tenancy within the statute, and that the officer had no jurisdiction.^ For a similar reason, a mort- gagor cannot be turned out of possession of the mortgaged premises under this statute, for a mortgagor is not a tenant. And where the occupant of land, instead of a reservation of certain rent, agreed to work the farm upon shares, he was not considered a tenant within the meaning of this statute, and could not be removed for a non-compliance with the terms of his agreement.^ So also of a conditional agreement to purchase real estate, where the purchaser made default in payment, and being in possession held over after notice and demand.^ Nor can such a proceeding be instituted on the ground of the expiration of the term by a forfeiture, upon the breach of a condition, for the expiration of the term mentioned in the statute means an expiration by lapse of time.* And where a lease contained a clause, that in case of a violation of any of its conditions, the relation of landlord and tenant should cease at the option of the former, who was thereupon to become entitled to immediate possession, under the statute for holdirig over after the expiration of the term ; it was held that a default in the payment of rent did not constitute such a holding over as to justify this 1 Sims V. Humphrey, 4 Denio, R. 185. repayment of certain advances ; and it was "Where one of two joint lessors becomes held that the grantor could not, after the sole owner, he may demand the whole two years, he treated as a tenant at suffer- rent, and, on a refusal, may dispossess the ance, and dispossessed under the statute, tenant. The statute directs the proceed- ^ -Williams v. Bigelow, 11 How. Pr. R. ing to be taken by the landlord, and no 84. A wharf or pier is a tenement within one but the person entitled to the imme- the meaning of this statute. The People, diate possession can obtain the order from &c., v. Kelsey, 14 Ab. Pr. R. 372. the justice. Where the letting is joint, * Oakley v. Schoonmaker, 16 Wend, there can be no division of the rent as to R. 226 ; Benjamin v. Benjamin, 1 Seld. the tenant; and a demand may be by R. 388. And where the affidavit showed either of the lessors, but it must be of the that the plaintiff was a grantee claiming whole rent, and not of an undivided por- under the defendant, who had not yet tion of it. Griffin v. Clark, 33 Barb. R. given him possession, but alleged that the 46-^ „ . ^ . defendant had become his tenant at suffer- '■ Roach V. Cosme, su-pra. In this case, ance, and that such tenancy had been ter- one party had executed a deed of the minated by a month's notice to quit ; it premises, in favor of the other, which deed was held to be insufficient, for that there was absolute on its face, but intended as a had as yet been no tenancy, the defendant mortgage ; it being, at the same time, being, in reality, a grantor in possession, stipulated that the grantor should remain The People, &c., • > quently erroneous. Prindle v. Anderson, 19 Wend. R. 391. SEC. II.] SUMMARY PEOCBEBINGS TO EECOTEE POSSESSION. 533 be absent from. his last or usual place of residence, by leaving a copy thereof at such place, with some person of mature age residing on the premises. Or if there be no such person residing thereon, service may be made by affixing a copy of the summons upon a conspicuous part of the demised premises.^ Where there are under-tenants upon the premises, each one of them must be served with a copy of the summons, in order that they may have an oppor- tunity of defending their possession ; and no warrant can issue to dispossess such as have not been served. It is not necessary to serve a copy of the affidavit on which the summons is founded.^ If, at the time appointed in the summons, no sufficient cause be shown to the contrary, and due proof of the service of the summons be made to such magistrate, he shall thereupon issue his warrant to the sheriff of the county, or to any constable or marshal of the city or town where the premises are situated, commanding him to remove all persons from the said premises, and to put the applicant in possession thereof.^ There is no sufficient proof of the service of the summons, without showing personal service on the tenant, or that he was absent from his last or usual place of residence ; and in this case, that the copy was left there with a person of mature age, during such absence.* § 723. If the tenant is disposed to contest the landlord's pro- ceedings upon the return of the summons, and denies his right to take possession in this summary manner, the statute reserves to him the privilege of having his case tried either by a jury, or by the magistrate, as he may elect. Any person in possession of the de- mised premises, or claiming the possession thereof, may, at the time appointed in the summons for showing cause, file an affidavit with the magistrate who issued it, denying the facts upon which the summons was issued, or any of those facts, and the matters thus controverted may be tried by the magistrate ; or by a jury, if either party to the proceeding shall, at the time appointed in the summons for showing cause (and before adjournment), demand a jury, and shall at the time of the demand, pay the necessary costs and expenses of obtaining the jury.^ The denial in the defendant's 1 Laws of 1857, vol. 2, p. 509. summons, must forthwith give notice of 2 Sims V. Humphrey, supra. the service upon him, to his immediate 8 lb. 514, §§ 32, 33. landlord, under a penalty of forfeiting the * Cameron v. McDonald, 1 Hill, E. 512. value of tlu^ee years' rent of the premises Upon the receipt of such summons, the occupied by him. 1 E. S. 748, § 27. defendant, if he holds under any other ^ 2 E. S. 514, § 34, as amended by laws person than the plaintiff mentioned in the of 1849, ch. 193, § 2, and laws of 1857. 45* 534 LAW OF LANDLORD AND TENANT. [CHAP. XIV. affidavit must be express and positive, not circumstantial, nor argu- mentative.i But it is sufficient if it denies generally, each and every allegation contained in the landlord's affidavit.^ In order to form a jury, the magistrate with whom the affidavit is filed must nominate twelve reputable persons, qualified as jurors in courts of record ; and issue his precept, directed to the sheriff or one of the constables of the county, or any constable or marshal of the city or town, commanding him to summon the person so nominated to appear before the magistrate, at such time and place as he shall therein appoint, not more than three days from date, for the pur- pose of trying such matters.^ It is erroneous to summon any other than the exact number of jurors directed by the statute, for sum- mary proceedings are open to all technical objections.* If a suffi- cient number of jurors do not appear, or cannot be obtained to form a jury, the magistrate may order any sheriff, constable, or marshal, to siimmon from the bystanders, or from the county at large, so many persons qualified to serve as jurors as shall be suffi- cient, and return their names to the magistrate ; and the persons so returned may be compelled to attend.® Six of the persons sum- moned shall be balloted for and drawn in like manner as jurors in justices' courts ; and shall be sworn by the magistrate well and truly to hear, try, and determine the matters in difference be- tween the parties. A tenant proceeded against, under this statute, may, upon the trial, disprove any material fact controverted by him, but he cannot set up a title to the premises, acquired by him since the taking of his lease, in bar of the landlord's claim to be put in possession.^ Nor where the proceeding is ujider the last An aifidavit of the tenant, stating that the an issue requiring tlie summoning of a landlord had previously, by a similar pro- jury. A demand of the rent of one ten- ceeding, impleaded the tenants before a ant, where two hold jointly, is sufficient magistrate, on account of the non-payment to authorize the proceedings. lb. of the same rent, and that the parties ap- i Mblo v. i'ost's Adm'rs, 25 Wend. R. peared, and after their proofs and allega- 284. tions were heard, the magistrate gave ^ The People, &c., v. Coles, 42 Barb. judgment in favor of the tenants ; is not R. 96. sufficient to bar the landlord's claim, as it ^ 2 E. S. 514, § 35. does not show what issue, or whether any * Tarrington v. Morgan, 20 Wend. R. was joined, or upon what ground the 207. This decision was made under the judgment proceeded. Geisler v. Acosta, statute of 1830, which required eighteen 5 Seld. E. 227. Wliether a defence in jurors to be summoned, instead of twelve, such proceedings can be interposed by ^ Laws N. Y. of 1862, chap. 368, p. 621. plea, — Quere. Where two tenants are ^ Rowan v. Lyttle, 11 Wend. R. 616. jointly charged in the affidavit of the An interruption of the enjoyment of a landlord, with holding over, after demand privilege conferred by a lease, by physi- and non-payment of rent, the affidavit of cal means adopted by the landlord, con- one of them, that the rent had not been stitutes an eviction, and suspends not only demanded of him, is not sufficient to make the rent, but also the landlord's remedies 8EC. 11. J SUMMARY PROCEEDINGS TO RECOVER POSSESSION. 535 clause of the statute can he inquire into the regularity, or validity of the judgment on which the execution was issued.^ But he may show that the landlord's title has been extingtiished or terminated in some way, by a conveyance, or. by operation of law.^ The affi- davit is not to be regarded as evidence on the merits, upon the trial, but when controverted by the tenant's affidavit, stands as a pleading, and is to be proved.^ After hearing the allegations and proof of the parties, the jurors are to be kept together until they agree on their verdict, by the sheriff or one of his deputies, or a constable, or by some proper person appointed by the magistrate for that purpose, who shall be sworn to keep the jury as is usual in like cases in courts of record. If the jury cannot agree, after being kept together for such time as the magistrate shall deem reasonable, he may discharge them, and nominate a new jury, and issue a new precept. If there be a default of jurors on the return of a venire, or, if some of them are disqualified, the justice is authorized to issue a second venire, until a jury appears, and is qualified.* § 724. Any magistrate before whom the application may be pend- ing, may, iipon the request of either party, adjourn the hearing, for the purpose of enabling the party to procure his witnesses, when- ever it shall appear to be necessary, but the adjournment shall in no case exceed ten days. He may also, at the request of either party, issue his subpoena, requiring any person to appear and testify before him, or before the jury, touching the matters directed to be heard by them ; and every person who, being served with such sub- poena, shall, without reasonable cause, refuse or neglect to appear, or appearing, shall refuse to answer upon oath touching the matters aforesaid, will be subject to the proceedings and penalties provided by law in similar cases. But if the magistrate refuses to adjourn, it seems the Supreme Court will not take notice of such refusal, on for the recovery of possession ; and where 1 Brown v. Betts, 13 Wend. R. 29. a mill, with a railroad leading to it, were ^ NeUis ;;. Lathrop, 22 Wend. R. 121 ; included in a lease, and the lessor, after Buck w. Binninger, supra; Rowan v. Lyt- the tenant had taken possession, tore up tie, supr.a. the rails, the court held it to be an evic- " Simpson v. Rhinelander, supra. It is tion of the tenant, which barred his action doubtful whether the parties can be ex- for the recovery of possession on the amined as witnesses on their own behalf ground of non-payment of rent. Peck v. in this proceeding under the provisions of Hiler, 24 Barb. B. 178. And it did not the New-York Code, § 399, &c. See also, alter this case, that the defendant had Code, § 471 ; 1 Seld. R. 383 ; 3 Sandf. s. c. recovered damages of the lessor for a R. 665; 10 How. Pr. R. 83 ; 5 Ab. Pr. R. breach of the covenant for the use of the 212. railroad, the covenant being a continuing * Roach v. Cosine, 9 Wend. R. 230 ; covenant. ■ 7 How. Pr. R. 441. 536 LAW OF LANDLORD AND TENANT. [CHAP. XIV. certiorari} After the litigation has terminated, and the officer has received the warrant authorizing him to put the landlord in posses- sion of the premises, he proceeds to execute the same ; the statute directing the officer to whom such warrant for deliyering possession shall be directed and delivered, in either of the cases aforesaid, to execute the same according to the tenor thereof. If the decision of the magistrate, or the verdict of the jury so summoned, shall be in favor of the lessor or landlord, or other person claiming the posses- sion of the premises, the magistrate shall issue his warrant to the sheriff of the county, or to any marshal, or constable of the county in which the premises are situated, commanding him to put the landlord, lessor, or other person,, into possession of the premises.^ § 725. The issuing of the warrant for the removal of the tenant operates as a dissolution of the relation of landlord and tenant. The statute declares, " Whenever a warrant shall be issued as aforesaid, by any such magistrate, for the removal of any tenant from any demised premises, the contract or agreement for the use of the premises, if any such exists, and the relation of landlord and tenant between the parties, shall be deemed to be cancelled and an- nulled." ^ This section, however, is not intended to prevent a landlord from collecting all rent due from the tenant for the non- payment of which he was dispossessed, as well as that which accrues subsequently for actual occupation. Its operation being not to annul the lease from its date, but only from the time of the default for which the warrant issued. Compensation for the use of the premises by the tenant intermediate the default and the time he is dispossessed, cannot, however, be recovered by an action on the lease ; but the landlord's only remedy for this is by an action of trespass, in which he recovers a sum proportionate to the rent, as damages for the wrongful detention.* 1 Wilson V. Green, 20 Wend. R. 180. like manner. And in the warrant for The plaintiff in a landlord and tenant pro- delivery of possession or by execution, he ceeding cannot, after producing a written must direct the collection of such costs, lease, the execution of which he fails to Laws, 1849, p. 292. prove, maintain liis action on parol proof ^ 2 E. S. 514, §§ 36-39. Eainy weather of possession and payment of rent. Barry is no excuse for the delay of the officer in f. Ryan, 4 Gray, R. 528. In case of pro- the execution of this writ. Higgiuhotham ceedings before a justice of the peace, he u. Lowenbein, 28 How. Pr. R. 221. must enter the finding of the jury, or, in ^ 2 R. S. 515, §§ 41-43. case no jury is called, his final decision, * Hinsdale v. Wliite, 6 Hill, E. 507 ; upon the appUcation for the warrant, in Rubicun o. Williams, 1 Ashm. 236 ; 4 his docket, and render judgment therefor ; Bingh. N. C. 178 ; McKeon v. Whitney, 3 and include in the judgment, costs to the Denio, R. 452 ; Crane v. Hardman, 4 B. prosecuting party at the same rate of fees D. Smith, R. 339, 448 ; Whitney v. Myers, allowed in justices' courts, and limited in 1 Duer, R. 2(56 ; 4 Coms. R. 270. SEC. II.J SUMMARY PROCEEDINGS TO RECOVER POSSESSION. 53T § 726. In either of the cases contemplated by the statute, except where the tenant holds over after the expiration of his term, provi- sion is made for a stay of all proceedings against the tenant, upon his complying with the requisition of the law, adapted to his par- ticular case. And the proceedings will be stayed, in any stage of the cause, upon the terms mentioned in the statute. The issuing of the warrant of removal will be stayed in the case of a proceeding for the non-payment of rent, if the person owing the rent shall, before such warrant be actually issued, pay the rent due, and all the costs and charges of the proceedings, or give such security as shall be satisfactory to the said magistrate, to the person entitled to such rent, for the payment thereof, and the costs aforesaid, in ten days. Aiid in case the person giving such security shall not, within the said ten days, produce to the magistrate satisfactory evi- dence of the payment of the rent and costs, the warrant of removal may at any time thereafter be issued. When the application to a magistrate is founded on the fact that the tenant or lessee has taken the benefit of any insolvent act, or been discharged under any act for the relief of his person from imprisonment, the proceed- ings shall be stayed, if at any time before issuing the warrant for removal, the tenant or lessee, or his assignee, shall pay the costs of such proceedings as have been had, and give such security to the person entitled to the rent, for the payment thereof, as it shall become due, as shall be satisfactory to the magistrate. When the application is founded on an alleged sale by execution, of the premises occupied by the defendant in such execution, the proceed- ings will be stayed, if at any time before issuing the warrant of removal, the occupant shall, 1. Pay the costs of such proceedings. 2. File with the officer before whom the application is pending, an affidavit that he claims the possession of such premises by virtue of some title or right acqiiired after such premises were sold, or as guardian or trustee for any other ; and, 3. Execute a bond to the applicant for such warrant, in such penalty, and with such sureties, as the magistrate shall approve, conditioned to pay the costs which may be recovered against him in any ejectment that may be brought by such applicant within six months, for the recovery of the possession of such premises ; and to pay the value of the use and occupation of such premises, from the date of such bond, to the time such applicant shall obtain possession of the same by vir- tue of a recovery in such action of ejectment ; and also conditioned 538 LAW OP LANDLORD AND TENANT. [CHAP. XIT. not to commit any waste or injury to such premises during his occupation tliereof. § 727. The statute has further guarded the rights of both the parties, by providing that nothing tlierein contained shall be con- strued to impair the rights of any landlord or lessor, or of any tenant, in any case not therein provided for.^ By the law of 12th April, 1842, also, in proceedings under the second subdivision of the 28th section of the above statute, if the unexpired term of the lease exceeds five years at the time of issuing the warrant, the les- see, his assigns or personal representatives, may, at any time, within one year after possession of the demised premises shall have been delivered to the landlord, pay, or tender to the lessor, his representatives, or attorney, or to the officer who issued the war- rant, all rent in arrear to the time of payment or tender, and all costs incurred ; and in such case the premises shall be restored to the lessee, who shall hold and enjoy the same without any new lease thereof, according to the terms of the original demise ; and any mortgagee of the lessee, or any part thereof, who shall not be in possession of the premises, or any judgment creditor of the les- see, who shall, within a year after the execution of the warrant, pay all rent in arrear, all costs and charges as aforesaid, and per- form all the agreements of the first lessee, shall not be affected by such recovery ; and such judgment creditor may file a suggestion of such payment upon the record, and issue execution for the amount of the original judgment and of such payment. § 728. The Supreme Court may award a certiorari for the pur- pose of examining any adjudication made on any application authorized by the statute ; but the proceedings cannot be stayed or suspended by such writ of certiorari, or by any other writ or order of any court or officer .^ Even a court of equity has no power to stay these proceedings, and if a tenant sustains injury or damage by being wrongfully dispossessed, he has an adequate remedy by a writ of restitution from the Supreme Court, or by an action upon the covenant for quiet enjoyment contained in the lease.^ In the 1 2 E. S. §§ 48-51. Hyatt v. Burr, 8 How. Pr. R. 168. This 2 2 R. S. 515, §§ 44-47 ; Lynde v. prohibition of the statute against injunc- Noble, 20 Johns. R. 80. No one but a tions only affects cases wliere the niagis- party interested in the subject-matter of trate has jurisdiction, and not those where, the proceedings can have this writ. Col- ' by the admission of the person assuming den V. Betts, 12 Wend. R. 284. to be landlord, he has no jurisdiction. Per 3 Smith V. Moffat, 1 Barb. R. 65. Mason, J., in James v. Stuyvesant, 3 Sandf. Wordsworth v. Lyon, 5 How. Pr. R. 463 ; s. c. R. 665 ; s. o. 1 Code R. n. s. 90 SEC. II.] SUMMARY PEOCEEDINGS TO RECOVER POSSESSION. 639 return to the certiorari, it must affirmatiyely appear that the statute has been strictly pursued in the proceeding before tlie magistrate ; as that the officer to whom the precept for that purpose was di- rected, was commanded to summon eighteen reputable persons qualified to serve as jurors in courts of record, who had been nomi- nated by the magistrate before whom the proceedings were had, or the proceedings will be quashed. It is not enough if the return states that the officer was commanded to summon a jury as directed hy the statute?- Upon such certiorari, the Supreme Court have power to examine into the correctness of all the decisions of the officer before whom the proceedings were had, upon questions of law, and to require the return of such parts of the proceedings as are material to an examination of the case upon its merits. The authority of the court, in such case, is not limited to questions of jurisdiction and regularity, but it may affirm, reverse, or quash the proceeding, as justice may require. It will not, however, reverse the judgment as to some of the defendants, and affirm it as to the others ; for, if irregular as to one, it is irregular as to all.^ When- ever any such proceedings brought before the Supreme Court by certiorari shall be reversed or quashed, the court may award restitution to the party injured, with costs, and may make such orders and rules, and issue such process, as may be necessary to carry their judgment into effect.^ In all cases of an application pursuant to the provisions of this article, the prevailing party will recover costs, and may maintain an action for the recovery thereof, and if the proceedings shall be reversed or quashed by the Supreme Court, the tenant or lessee may recover against the person making application for such removal, any damages he may have sustained by reason of such proceeding, with costs, in an action on the case.* Nor would the statute prevent a court of * Farrington u. Morgan, 20 "Wend. E. equity from relieving a tenant from fraud 207. or surprise. lb. Forrester v. Wilson, 1 ^ Anderson v. Prindle, 23 Wend. K. Duer, R. 624. The certiorari, however, 616 ; Buck v. Binninger, 3 Barb. E. 391 ; suspends the effect of the judgment of the Niblo v. Post's Adm'rs, 325 Wend. E. 280 ; magistrate in every thing except what re- Benjamin v. Benjamin, 1 Seld. E. 383 ; 2 mains to he done by himself ; and although ih. 309; 7 How. Pr. E. 154; Geisler v. he may issue his warrant to dispossess Acosta, 5 Seld. E. 227. the tenant, during the pendency of the ^ The court will not, of course, award certiorari, his judgment is no evidence restitution to the tenant if the term has that the tenancy has ceased, or of the land- expired before judgment of reversal is lord's right to re-enter ; nor can the land- rendered. Chretien a. Doney, 1 Comst. lord maintain an action for rent accruing R. 420. between the time of the forfeiture and the * 2 E. S. 516, §§ 48, 49. issuing of the warrant. Launitz v. Dixon, 6 Sandf. s. c. E. 249. 540 LAW OP LANDLORD AND TENANT. [CHAP. XIT. § 728 a. The proceedings before a justice of the peace may after judgment be removed by appeal to the county court of the county, in the same manner and with the like effect, and upon the like security as appeals ftom the judgments of justices in civil actions ; except that the decision of such county judge must be an affirmance or reversal of the judgment, and is final. But in addi- tion to the security for the judgment required in case of an appeal, in order to stay the issuing of a warrant or execution, there must also, in case the tenant appeals, be security given to pay all rent accruing or to accrue upon the premises subsequent to the appli- cation to the justice. Nor will the appeal be allowed, unless security for the judgment shall be given and approved of by the judge, at the time of allowing the appeal, and served on the justice with the affidavit for appeal.^ 1 Laws, 1849, ch. 193, § 5. SEC. I.] ACTIONS FOR WRONGFUL OR IRREGULAR DISTRESS. 541 CHAPTEE XV. THE TENANT'S EEMBDIES. SECTION I. ACTIONS FOR A WRONGFUL OR IRREGULAR DISTRESS. § 729. We now proceed to spaak of the remedies, which more appropriately belong to the tenant, and by means of which the law redresses such wrongs as he may suffer, at the hands of an unjust or inconsiderate landlord. For, if a landlord takes a wrongful dis- tress, that is, a distress where no rent is due, or not so much as is distrained for ; or if, though rent be due at the time of the seizure, a tender of tlie amount is made before the goods are impounded ; or, if he takes goods which are not by law subject to distress ; or, if he distrains irregularly, that is, where the distress itself is legal, but some of the proceedings thereon are not in conformity with the statutes by which they are regulated ; or, if he takes things privi- leged from distress, as by severing fixtures from the freehold, or takes beasts of the plough, while other things remain on the premi- ses sufficient to satisfy the distress, the tenant may either rescue them before they are impounded, or maintain an action against the landlord suited to the exigency of the case, and according to the nature of the grievance. The action of replevin is the usual remedy the law gives, for a return of goods wrongfully taken, but for the abuse of a distress, trespass or case is the appropriate remedy.^ § 730. The ancient statute of Marlebridge (52 Hen. 3, c. 4), which forms the basis of all subsequent legislation on this subject, i Connah v. Hale, 23 "Wend. E. 462 ; & Kir. 961 ; Co. Lit. 160, b. ; 5 Term R. Perreau v. Sevan, 5 B. & C. 384 ; 1 Wms. 248. Saund. 195, n. ; Dalton v. Whittem, 1 Car. 46 542 LAW OF LANDLORD AND TENANT. [CHAP. XV. both in England and America, enacts, " distresses shall be reason- able, and not too great; and they that take unreasonable and undue distresses shall be grieyously amerced, for the excess of such distress." The remedy for a party aggrieyed under this statute is by an action on the case, and not trover or trespass.^ To enable a party to maintain an action for taking an unreasonable or excessive distress, it is not necessary that express malice should be shown ; it is sufficient if the goods taken appear to be greatly disproportion- ate to the amoimt of rent due. But it is not every trifling excess that will render the landlord liable to this action ; for where there is but one thing on the premises which can be taken, so that the landlord must either take it or go without his distress, an action will not lie, although the value of the thing taken greatly exceed the amount of rent due.^ § 731. Nor is it necessary that the proceedings should have gone further than a levy under a distress warrant, in order to fix the land- lord's liability; for where a landlord's agent went upon the premises of the tenant, walked around them, and gave the usual written notice that he had distrained certain goods lying there, for rent, &c., and then went away without leaving any person in possession, it was held that this was a sufficient seizure to give the tenant a right of action for an excessive distress ; and that quitting the premises without leaving a person in possession was not an abandonment of the distress.^ If the landlord distrains after the tenant has ten- dered the rent, without making a subsequent demand of it, and being refused by the tenant, an action may still be maintained for an excessive distress.* And in such action the tenant will not be required to prove the precise amount due.^ Nor does the tenant waive his right of action by entering into an arrangement with the landlord respecting the sale of the goods seized.® But where the tender is not made until after the distress has been impounded, case will not lie for the detainer, ^ nor can an action for an exces- sive distress be maintained after a judgment recovered in replevin.^ Even a lodger may maintain an action if his goods are taken on an excessive distress, by the landlord of the party under whom he 1 Hutching v. Chambers, 1 Burr. 589 ; ^ Sells v. Hoase, 1 Bingh. E. 401 • 8 Whitworth v. Smith, 1 Mo. & Ey. 193. Moore, 451 ; 1 C. & P. 28. 2 Field ./. MitcheU, 6 Esp. E. 71 ; 2 B. " Willoughby v. Backhouse, 2 B. & C. & C. 823. 821 ; 4 Bow. & Ey. 539. 3 Swan V. Earl of Fabnouth, 8 B. & C. ' Sheriffs. James, 1 Bingh. E. 341. 456 ; 7 Bingh. 153. s Phillips v. Berryman, Johns. N. P. * Branscomb v. Bridges, 1 B. & C. 145. Trespass, IX. SEC. I.] ACTIONS FOR WRONGFTIL OR IRREGULAR DISTRESS. 543 occupies.^ The right of action, however, for taking an excessive distress, is said to be strictly personal, and does not pass to as- signees, or personal representatives .^ § 732. Trespass was the tenant's usual remedy at common law, if the landlord distrained where no rent was due. The statute 2 Wm. & Mary, c. 5, which first enabled a landlord to sell a distress that had been seized for rent, provided, that if any person should distrain and sell under that act for any rent pretended to be due, when in fact no rent was due, the owner of the goods might recover double the value of the goods so distrained and sold. This statute does not apply to the case of distraining for more rent than is due, or where there is no right to distrain, but only where no rent is due. If there is any rent due, it will protect the distrainor from the pen- alty of paying double the value of the goods, although he may be liable in another way if he proceeds without authority.^ It is to be observed, also, that the statute extends only to cases where the goods distrained have been sold; if they have not been sold, the remedy is by an ordinary action of trespass for damages, as at common law.* § 733. At common law, a landlord cannot distrain twice for the same rent ; nor can he distrain for part of the rent at one time and part at another, if there were suf&cient goods upon the premises, at the time of the first distress, to have enabled him to have then dis- trained for the whole. If he does either he is liable to the tenant for damages, either in trespass or case, at the tenant's option.^ So if, after having distrained goods sufficient to pay the rent, he aban- dons that distress, and afterwards make a second distress for the same rent, he is also liable for damages in either form of action.® If, however, he distrains for the entire rent, but by mistake in the value of the goods distrained takes an insufficient distress, a second distress for such insufficiency will be lawful, although there might have been sufficient goods upon the premises to have answered the whole demand at the time of the first taking. And he may take a second distress upon goods subsequently coming upon the premises, if, in the first instance, he distrained all the goods he could then T- Fisher v. Alger, 2 Car. & Pay. 374. * Lockier v. Patterson, 1 Car. & K. 2 O'Donnell v. Seybert, 13 S. & E. 64; 271. Smith V. Meander, 16 ib. 375. ^ Lear v. Caldicott, 4 Q. B. K. 123 ; 45 " Peters v. Newkirk, 6 Cow. E. 103. E. C. L. E. 6 Smith V. Goodwin, 4 B. & Ad. 413. 544 LAW OP LANDLOED AND TENANT. [CHAP. XT. find thereon for the entire rent, and the goods did not cover the amount of the rent due.^ § 734. If rent is due at several days, the taking of a distress on one day for rent will be no bar to the taking of another rent on an- other day ; nor does it matter whether the first distress be taken for the rent which last became due.^ And where cattle, taken and impounded as a distress, die, without any fault or neglect in the distrainor, he may lawfully take another distress.^ Where a land- lord has distrained for rent, and the tenant, in order to prevent a sale, has given a promissory note for the arrears then due, in which note a third person has joined as security ; should the land- lord again distrain for rent accruing after the period to which the note referred, and the proceeds of such second distress are not suf- ficient to satisfy both the demand in respect of the promissory note, and also the rent subsequently accrued, they must first be applied in discharge of the note, or rather of the debt for which the note was given ; since while the note remains unpaid it was merely a collateral security, not affecting the landlord's right of distress.* § 735. Case lies at common law, for distraining for more rent than was due, even though the distress taken was not sufficient to pay the rent due ; for though there is in such case no real damage, there is legal damage ; and the action lies, though the notice of distress for more rent than is due is withdrawn, and the distress is sold, under a second notice, for the rent really due. Nor will the relinquishment of the excessive sum distrained for cure the wrong, any more than the return of a chattel converted cures the conver- sion.^ If a landlord take things which are by law exempt from distress, the tenant, or person from whose possession they were taken, or the owner, if he have a right to the immediate possession, may maintain either trover, trespass, or replevin against the party distraining ; or the landlord, if he can be connected with the dis- tress ; or both. If the things have been removed and sold, the plaintiff will be entitled to their value, and the damage he has sus- tained by their removal. But if they have not been removed, and the tenant has paid the rent and expenses, to prevent their 1 Bro. Abr. Distress, 96 ; Hutchina v. * Heming v. Ernuss, 1 Price, R. 386. Chambers, 1 Burr. 589 ; 1 Cr. M. & R. ^ Taylor v. Henniker, 4 Per. & ])av. 696. 242 ; 12 Ad. & El. 488, overruling "Wilk- 2 Pamer v. Stabick, 1 Sid. 44. insou v. Terry, 1 M. & Ry. 377. " Vasper v. Eddowes, Ld. Raym. 720; SaUsL. 248; 11 Mod. R. 21 ; 12 ib. 668. SBC. I.] ACTIONS FOR WEONGPUL OR IRREGULAR DISTRESS. 545 removal, he will only be entitled to the actual damage sustained by the seizure.! § 736. We have seen that, at common law, any irregularity or unlawful act in taking a distress, made the landlord a trespasser from the beginning, and a tenant might proceed against him accord- ingly ; but that the statute now only authorizes the party aggrieved to maintain an action of trespass, or trespass on the case, for any special damage he may have sustained, by such irregularity, or unlawful act. .An irregularity consists in either omitting to do some- thing necessary, for the due and orderly conducting a legal pro- ceeding, or doing it in an iinseasonable time, or improper manner. The nature of the irregularity must determine the form of action, except where, by virtue of a statute, as in New York, case may be a concurrent remedy with trespass, under any circumstances. Hence, for an irregularity, consisting in the omission to appraise the goods, before they were sold, the action will be on the case. But where the party remained in possession of the goods in the plaintiff's house beyond five days, and then removed them, it was held that trespass was maintainable ; since the removal of the goods was ,a distinct, subsequent, and substantive act of trespass, and the remaining in possession beyond the five days was also to be considered a new act of trespass.^ Lord EUenborough observing, that he could not understand the statute as giving an option to maintain trespass, where trespass would not lie by the rules of the common law; but as giving an election to bring trespass where trespass was the proper remedy, and case only where case was proper. § 737. Nor is it every mere irregularity, that will subject a land- lord to an action for damages; for where a landlord distrained furniture and beasts of the plough, and by the appraisement it appeared that, without the beasts of the plough, the distress would be insufficient to satisfy the rent ; but upon the sale the beasts were first sold, and then part of the furniture, and it was ascertained, by the result of the sale, that the furniture alone would have satisfied the rent: the tenant brought an action on the case, under the statute prohibiting beasts of the plough to be distrained, so long as other goods were to be found on the premises ; and the judge left it 1 Harvey v. Pocock, 11 Mees. & Wels. 395 ; 2 Campb. 115 ; Ladd v. Thomas, 4 740 ; Niblet v. Smith, 4 Term E. 504. Per. & Dav. 9 ; 12 Ad. & El. 117. 2 Winterbourn v. Morgan, 11 East, 46* 546 LAW OF LANDLORD AND TENANT. [CHAP. XV. to the jury to say, whether the defendant had reasonable grounds for supposing that the goods were sufficient to satisfy the rent and expenses, without a sale of the beasts; for that if the original taking was lawful, the result of the sale could not make it unlaw- ful, and there was nothing in the statute directing beasts of the plough to be last disposed of.^ § 738. Where a tenant underlets, the law implies a duty on his part to indemnify the under-tenant against all his covenants with the superior landlord ; and the under-tenant may have an action on the case against him for any injury he may sustain, by reason of any such breach of covenant.^ But where the under-letting was by deed, not containing a covenant to indemnify against such claims of the head landlord, the under-tenant was not allowed to maintain assumpsit against his landlord, for permitting him to be distrained upon for rent due to the head landlord ; the lease being by deed, the tenant's remedy, if any, was by an action of covenant upon the implied covenant for quiet enjoyment.^ But where the demise is not by deed, the proper remedy is by action on the case, although assumpsit may also lie.* SECTION II. THE ACTION OF EEPLEVIN. § 739. As a common-law action, replevin has long been used to try the legality of a distress ;5 although it is not now confined exclusively to this object (except in Connecticut and Alabama),^ but applies to all cases where goods and chattels have been wrong- fully taken, whether under a distress or otherwise.^ And in gene- ral it lies for any tortious or unlawful taking of the property of another, or whenever trespass de bonis asportatis can be sustained.^ 1 Jenner v. YoUand, 6 Price, E. 4. 140 ; Dsley v. Stubbs, 6 Mass. E. 283 • 1 2 Hancock v. Caffyn, 8 Bingh. 368. Sch. & Lef. 320 ; Wearer v. Lawrence 1 3 Schlencker v. Moxsy, 3 B. & C. 789; DaU. E. 157 ; 16 S. & E. 300 ; 3 Band. E. Baker v. Harris, 9 Ad. & El. 532. 448 ; Byrd v. O'Harlin, 1 Eep. Con Ct * Per Tindal, J., in Hancock w. Caffyn, 401; Clark v. Adair, 3 Harr. E. 113; s"P™- ^ ,,„ ' ,, Pease v. Simpson, 3 Fairf. 261; Chin v. I 2 Inst. 140 ; 4 M. & 8. 121. EusseU, 2 Blackf. (Ind.), E. 174 ; Stot. of " Watson V. Watson, 9 Conn. E. 140 ; Ohio, 1831. . "^ Smith V. Crockett, 1 Ala. E. 277. « Wheeler v. McFarland, 10 Wend E ' Pangburn v. Patridge, 7 Johns. E. 822-349 ; Eogers „. Arnold, 12 Wend. E. SEC. II.J THE ACTION OP REPLEVIN. 547 When goods have been tortiously taken, even a hond fide purchaser under the wrongdoer is answerable to the owner, either in trover or replevin, in the detinet as well as in the cepit} But not for an illegal detention of property, where the party comes to the -posses- sion by delivery, from a person having a special property only ; ^ nor for goods deposited with the plaintiff by a stranger, who has no interest in them.^ The courts of Maine and Massachusetts have held, and the statutes of New Jersey and Indiana enact, that it lies in any case of unlawful detention, though the taking was not tor- tious or unlawful.* So it lies in Pennsylvania, wherever one man claims goods in the possession of another, no matter how the pos- session of the latter was acquired.^ While in Virginia it was decided that, at common law, replevin lay in all cases where goods were unlawfully taken.® And this was the law of Virginia until 1823, when an act of the legislature confined the writ to cases of distress for rent.'^ In South Carolina it is said not to have been decided whether replevin will lie in any other case than that of a distress for rent.^ While the statutes of New York, Michigan, Illi- nois, Missouri, and Arkansas, apply this writ to all cases of wrong- ful taking or detention. § 740. In executing the writ, the sheriff of the county in which the goods have been distrained will take them out of the hands of the landlord and his distraining officer, and replace them in the possession of the tenant, upon receiving from the tenant liis bond, with sufficient sureties, in a sum double the value of the property seized ; conditioned that he will prosecute his suit with effect, and without delay, and test the validity of the distress ; and that he will restore the goods to the landlord, in case the jtidgment of the court shall be against the tenant. At common law, the sheriff took pledges from the plaintiff to prosecute the suit ; and, by statute, he was required also to take pledges for a return of the beasts, if return should be awarded ; but this he did at his peril, and if the 32; Hopkins v. Hopkins, 10 Johns. 369; * Seaver v. Dingley, 4 Greenl. 315; Thompson v. Button, 14 ib. 87 ; Buffing- Master v. Baldwin, 17 Mass. E. 606 ; ton V. Gerrish, 15 Mass. E. 156 ; Badger Baker v. Fales, 16 *. 147 ; Ehner, Dig. V. Phinney, ib. 359; 3 Serg. & Eawle, 466. 562. ^ Weaver v. Lawrence, 1 Dall. 157 ; 1 Bennett v. Warren, 3 Hill (N. Y.), Keite v. Boyd, 16 S. & E. 300. E. 348 ; ih. 281 ; 6 *. 613 ; Patterson v. « Vaiden v. Bell, 3 Band. E. 448. Adams, 7 HiU (N. Y.), E. 126. ' 1 Eobinson, Pr. 408. 2 MarshaU v. Davis, 1 Wend. 109; 4 » gyrd v. O'Harlin, 1 Eep. Con. Ct. Bingh. 299 ; 12 Moore, 547. 401. 8 Harrison v. Mcintosh, 1 Johns. E. 380. 548 LAW OP LANDLORD AND TENANT. [CHAP. XV. security proved insufficient, he remained liable in an action on the case.i Where this liability exists, it is co-extensive with that which the sureties would have been under, if the sheriff had done his duty, and taken a sufficient bond ; and as the responsibility of the sureties is limited by the statute to double the value of the goods distrained, that sum is the measure of damages against the sheriff.2 In Pennsylvania, the sheriff is still held responsible for the sufficiency of the sureties, at the termination of the suit, and it is no excuse for him that they were in good credit at the time the writ of replevin was executed.^ § 741. The Code of Procedure of New York has made a material change in the law of replevin, with respect to the possession of property seized ; for if the defendant will give equal security to that which the plaintiff has given, he will, under the code, be allowed to retain the property during the litigation. It provides, " At any time before the delivery of the property to the plaintiff, the defendant may require the return thereof, upon giving to the sheriff a written undertaking, executed by two or more sufficient sureties, to the effect that they are bound, in doiible the value of the property, as stated in the affidavit of the plaintiff, for the deliv- ery thereof to the plaintiff, if such delivery be adjudged, and for the payment to him of such sum, as may, for any cause, be recov- ered against the defendant. The defendant's sureties, upon a notice to the plaintiff, of not less than four, nor more than eight days, shall justify before a judge, in the same manner as the sure- ties given by the plaintiff; and upon such justification, the sheriff shall deliver the property to the defendant.^ § 742. The sheriff is not bound to warrant the sufficiency of the pledges at all events ; for if, at the time of taking the bond, the sureties are apparently responsible, he is not liable to an action for taking insufficient pledges.^ But he is bound to use a reasonable discretion and caution, and whether he has done so or not is a question for a jury.^ And although he is justified in taking a person ^ Pencase v. Eevan, 5 B. & C. 284. Baker v. Garratt, 2 Bingh. N. C. 220 ; 4 The plaintiff must give some evidence of Ad. & El. 823. the insufficiency of the sureties, in order ^ Oxley v. Cowperthwaite, 1 Dall. 349 ; to throw the burden of proof to the con- Pearce v. Humphreys, 14 S. & R. 28. trary on the sheriff. Eoscoe, N. P. 648 ; * Code of Procedure, § 211, 212. 6 Esp. E. 100 ; Rex ti. Lewis, 2 Term R. ^ Hindle v. Blades, 5 Taunt. R. 225 ; 607 ; 11 Geo. II. c. 19 ; Richards v. Ac- s. o. 1 Marsh. 27 ; Sutton v. Waite, 8 B. ton, 2 Black. R. 1220. M. 28. 2 Evans v. Brander, 2 H. Blacks. R. ^ Jaffery v. Bastard, 4 Ad. & El 823 • 547 ; Hefford v. Alger, 1 Taunt. 218 ; 6 Nev. & Man. 303. ' SBC. 11.] THE ACTION OP EEPLETIN. 549 as surety, who appears to the world, and is reputed to he a per- son of responsibility, yet, if he actually knows that such person is not responsible, or if, having the means of information, he neglects to use them, he will be responsible.^ Although he is required by the statute to take a bond, yet if he neglects to do so, it is no con- tempt of court, for which an attachment will be granted, but the proper remedy is by action on the case against him.^ And where a statute does not require the sheriff to take a bond from the plain- tiff, this omission to take such bond with sureties does not invali- date the writ, but only subjects the sheriff to an action by the defendant.^ Under the statute of Massachusetts, which requires a bond from the plaintiff to the defendant, it has been held that a bond from the plaintiff to the replevying officer, instead of the defendant, was absolutely void.* In an action against the sheriff, the sureties in the bond may be witnesses to prove whether they were sufficient or not. And if the avowant, or person making cog- nizance, take an assignment of the replevin bond, and prosecute the principal and sureties, and they are found to be insolvent or insufficient, he may afterwards bring an action upon the case against the sheriff for taking insufficient sureties ; for taking an assignment of the replevin bond from the sheriff is no waiver of any proceedings afterwards against him, as it is in the case of a bail bond. Nor does the plaintiff waive his remedy against the sureties by giving time to the principal.^ § 743. A plaintiff in replevin, who does not use diligence in prosecuting the suit, is guilty of a breach of that part of the condi- tion of the bond which requires him to prosecute without delay, even though it may not appear that the suit is determined ; but he is not responsible for the default of the sheriff, or guilty of delay, by reason of the sheriff having neglected to serve a summons.^ Allowing two years to elapse without proceedings has been held to be a breach of the condition to prosecute without delay, and the obligee may recover on such breach, although no judgment of non pros, was ever signed.^ To prosecute the suit with effect means that the plaintiff must not only proceed to a decision of the cause, 1 Scott V. Waithman, 3 Stark. K. 170. 81 ; Turner v. Turner, 2 Bro. & Bin. 2 Eex V. Lewis, supra. 112. 3 Vaiden v. BeU, 3 Hand. 448. « Harrison v. Warden, 2 Nev. & Man. * Purple V. Purple, 5 Pick. 226. 703 ; 5 Bar. & Adol. 146. 6 1 Saund. R. 195, g ; Moore v. Bow- ' Axford v. Perrott, 4 Bingh. 586 ; 1 maker, 6 Taunt. K. 379 ; s. c. 2 Marsh. Moore & Pa. 470; 1 B. & P. 410. 650 LAW OP LANDLOED AND TENANT. [CHAP. XV. but that he succeed in it also.^ But it has been held, that the con- dition of the bond was saved, when the obligor prosecuted it, until the writ abated by the death of the defendant.^ In Pennsylvania, however, this action does not abate by the death of the defendant ; ^ nor, in Maryland, by the death of the plaintiff.* § 744. In New York, it is held that the death of the plaintiff abates the suit, and that it cannot be revived by a scire facias; nor has the plaintiff any remedy in such case upon the replevin bond. But the temporary right of possession which the plaintiff had acquired by his writ falls with it, and the defendant may retake the goods peaceably, without suit, or after demand and refusal, by a suit in trover or replevin.^ Where tlie property taken by the writ is a living animal, and there is judgment for its return, in an action on the replevin bond for a breach of its condition, it is a good plea that before judgment in the replevin suit, the animal died without the default of the plaintiff in the suit.^ But in Ken- tucky, it was held in the case of a slave replevied, that his death pending the suit was not a valid defence on the replevin bond, and, if available at all, it could only be by a plea puis darrein contirm- anceJ Both the avowant and the person making cognizance may take an assignment of a replevin bond from the sheriff, and sue jointly upon it.* The avowant may always sue, without joining the person making cognizance ; ^ and where there is no avowant named on the record, the person making cognizance may sue alone on the bond.io § 745. The sureties in a replevin bond are only liable for the value of the goods seized and the costs ; and if that value exceeds the amount of rent due, they will only be liable for the rent and costs, not exceeding the penalty of the bond in any case.^^ Their liability is limited also to the amount of rent in arrear at the time of the distress and costs, excludhig subsequently accruing rent.^ ^ Gould V. Warner, 3 Wend. E. 54 ; the court, in the New York case, seems to Pemble v. ClifFord, 3 McCord, 43 ; Mor- doubt whether the defendant's hen was gan V. Griffith, 7 Mod. R. 380 ; Perreau not gone, so that he could not retake the V. Sevan, 5 B. & C. 800. goods. 2 Badlam v. Tucker, 1 Pick. E. 284. " Carpenter v. Stevens, 12 Wend. E. 8 Keite v. Boyd, 16 S. & E. 300. 589. * Pisher v. Bell, 1 Har. & J. 31. ' Gentry v. Barnett, 5 Monroe, E. 116. " Burkle v. Luce, 6 HiU (N. Y.), E. 8 phiijpg „. price, 3 M. & S. 180 558 ; Bradyde v. Ball, 1 Bro. C. E. 427 ; ^ Archer v. Dudley, 1 B. & P. 381 n 2 DaU. 68-131; 1 Pick. 284; 8 Greenl. l» Page v. Earner, 1 B. & P. 378. 128. As to third persons, however, who u Hunt v. Eound, 2 Dowl. 558 ; 9 ib. have acquired rights under the plaintiflFin 975-1029 ; 1 Taunt. 218. replevin during the pendency of the suit, 12 Ward v. Hawley, 1 You. & Jer. 285. SEC. II.J THE ACTION OP REPLETIN. 651 If the parties to the suit, without the privity of the sureties, refer the cause to an arbitrator, and agree that the bond shall stand as security for the performance of the award, it will discharge the sureties.^ But where such parties referred to arbitration the time of payment of the rent, with certain claims of the tenant on the landlord for damages, with liberty for the tenant to deduct them when awarded for the rent ; and agreed to suspend the proceedings in replevin pending the reference ; after an award made, it was held, that the sureties in the replevin bond were not thereby dis- charged.2 And it is no plea to an action against sureties, that the replevin suit was referred to an arbitrator, and that he, without th^ knowledge of the sureties, enlarged the time for making his award.^ An agreement which was made a rule of court between the plaintiff and the principal, to stay all proceedings in replevin, upon payment by the latter of a certain sum of money, each party to pay his own costs, was held not to be a discharge to the sxirety, after breach by the principal ; but that the surety was liabl.e for such sum, as appeared upon a reference to be due.* § 746. The sheriff is bound to deliver actual possession of the chattels to the plaintiff; a symbolical delivery is not sufficient, unless with the consent of the plaintiff.^ At common law he may not break an enclosure to come at the property ; but by the stat- utes, if the property to be replevied, or any part thereof be secured or concealed in any dwelling-house, or other building or enclosure, the officer must publicly demand deliverance thereof, and if the same is not delivered, he shall cause such house, building, or enclosure, to be broken open, and shall make replevin according to the writ, and, if necessary, he may take to his assistance the power of the county .8 After the execution of the writ by the delivery of the goods to the defendant, he cannot regain possession of them except by virtue of a judgment in the cause, and a writ of replevin issued by a defendant to obtain a redelivery of the property taken from him by virtue of a replevin is irregular, and will be super- seded with costs, if the motion be made before the return of the writ, or set aside if after the return.^ 1 Archer W.Hale, 4 Bingh. 464; 1 Moore * Hallett v. Mountstephan, 2 D. & E. & Pay. 285. 343. 2 Moore v. Bowmaker, 7 Taunt. 97 ; 7 ^ Hayes v. Lusby, 5 Har. & J. 485 ; Price, 223 ; 2 Marsh. 392. McColgan v. Huston, 2 Nott & McC. 444. 3 Aldridge v. Harper, 10 Bingh. 118 ; 3 « 2 R. S. 524, § 10. Moore & Scott, 518. ' Morris v. Dewitt, 5 Wend. R. 71. 552 LAW OF LANDLORD AND TENANT. [CHAP. XT. § 747. By the English law, if the defendant claims property in the goods, the sheriff's power to redeliver them is suspended, and the plaintiff must sue out a writ of proving property. If on the inquest the property is found for the plaintiff, the sheriff makes deliverance ; but if found for the defendant, the replevin by plain- tiff is determined, and the sheriff can proceed no further, although he may still bring a new replevin by original writ.^ According to the practice of Pennsylvania, if the defendant claims property, the writ is not defeated, but the suit goes on, and the plaintiff gives security to deliver the goods to the defendant, if, on the trial, the property shall not be found in him.^ The Eevised Statutes of New York contain a provision of a similar character. If the defendant, or any other person who may be in possession of the goods and chattels specified in the writ, shall claim property therein, or any part thereof, the sheriff shall summon a jury to try the validity of the claim. If the jury shall find the property of the goods is not in the person claiming, the sheriff shall forthwith deliver them to the plaintiff; but, if the property is found to be in the claimant, the sheriff shall not deliver the same, unless the plaintiff in reple- vin shall indemnify the sheriff to his satisfaction for delivering the property claimed, and refund the costs, and the sheriff may then deliver the goods to the plaintiff. And if the goods are not deliv- ered to the plaintiff, he may proceed in the action for the recovery thereof, or their value.^ § 748. It is said to be a general rule, but subject to exception, that whatever is distrainable may be replevied.* It can only be supported for taking a personal chattel, and not for things affixed to the freehold ; in which latter case the remedy should be tres- pass ; or if the interest be in the reversion, case. But if after they are levied on they be separated from the freehold, they become personal property, and may be replevied.^ Upon this principle, replevin lies for the detention of the young of animals distrained, which have been born since the distress.^ If trees are cut down upon the plaintiff's land, and converted by the defendant into posts and rails, it is not such an alteration of the property as will prevent the plaintiff from recovering them in this action.'^ Keple- 1 1 Inst. 145, b. Niblet v. Smith, 4 Term E. 504; F. N. B. 2 Weaver v. Lawrence, 1 Dall. 157. 68. 3 2 R. S. 526, § 13-19. 6 gi^. 82 ; Gilb. on Rep. 156. i 1 Swanst. R. 296 ; Bae. Ab. Rapl. F. ' Snyder v. Vaux, 2 Rawle, R. 423. 6 Cresson v. Stout, 17 Johns. 116; SEC. II.J THE ACTION OP REPLEVIN. 653 Tin, howeyer, will not lie for goods which the defendant has law- fully obtained possession of, until after a demand, for it is only from the time of a demand and refusal, that the detention becomes tinlawful.^ And, therefore, furniture leased for a time unexpired, and attached as the property of the lessee, cannot be replevied by the owner pending the lease, as he has no right of possession.^ § 749. The plaintiif must, at the time of the caption, have had either the general ownership, or a special property, as the factor, agent, or bailee of the goods taken.^ A mere possessory right is not sufficient.* Thus a deposit by a person, who has himself no property in the goods, does not give the depositary any right to replevy them; and it seems doubtful whether any other mere naked bailee for safe keeping can maintain this action .^ A servant who has had charge of goods, as such only, cannot replevy ; but if they were delivered to him by the master for a particular purpose, he may.^ It will not lie by a person out of possession of land, to recover a crop of grain cut and removed by the party in possession, although the gram was sowed by the plaintiff, and he was wrong- fully ousted by the defendant ; for the proper remedy is by an action of trespass, quare dausum /regit, after regaining possession by ejectment.^ Several persons, having separate interests in the property distrained, cannot join in this action ; ^ but joint tenants and tenants in common must join.^ And as a part-owner of a chattel cannot maintain replevin for his undivided part,^" if he sues for a moiety only, the court will, ex officio, abate his writ.^^ If the cattle of a feme sole be taken, and she afterwards marries, the action should be in the name of the husband ; for the property, being personal, is transferred by the marriage, and vests in him alone ; ^ yet the husband and wife may join, when a sufficient cause for joining the wife appears.^^ If, however, the goods are 1 Seaver v. Dingley, 4 Greenl. 316. 114 ; Mather v. Trinity Church, 3 ib. 509 ; 2 Wheeler v. Train, 3 Pick. R. 255. Kerley v. Hume, 3 Monroe, B. 182. 3 Dunham v. "WyckoflF, 3 Wend. 280 ; » Hart v. Fitzgerald, 2 Mass. E. 509 ; Co. Lit. 145, b. ; 5 Mass. E. 803 ; 9 *. Gardner v. Dutch, 9 ib'. 427. 112. ^ BuUer, N. P. 53; Co. Lit. 145, b. * Pattison ;;. Adams, 7 Hill (N. Y.), R. i" Hart v. Fitzgerald, 2 Mass. E. 509 ; 126 ; Templeman v. Smith, 10 Mod. 25 ; Gardner v. Dutch, 9 ib. 427. Wyman v. Dorr, 3 Greenl. 183 ; Wheeler i^ Per Story, J., in De Wolf v. Harris, V. Train, 3 Pick. 255; Smith v. William- 4 Mason (N. .1.), R. 515. son, 1 Har. & Johns. 147. ^ Baker v. Fales, 16 Mass. E. 149 ; F. 5 Harrison v. Mcintosh, 1 Johns. R. N. B. 69, E. 380 ; HaU v. Tuttle, 2 Wend. E. 475. i^ Lee's Case, Temp. Hardw. 119 ; 6 Harris v. Smith, 3 Serg. & Rawle, 20. Serres v. Dodd, 2 New E. 405. If the ' Demott V. Hageman, 8 Cow. E. 220 ; wife's interest does not appear, the decla- Brown v. CaldweS, 10 Serg. & Eawle, ration is demurrable. 47 554 LAW OP LANDLORD AND TENANT. [CHAP. XV. taken after marriage, husband and wife ought not to join ; but if they do, and after verdict a motion is made on tliis ground, in arrest of judgment, it will be presumed that the husband and wife were jointly possessed of the goods before marriage, and that the goods were taken before marriage, in which case the husband and wife might join.i Executors may replevy goods of the testator taken in his lifetime ; for the general property is in the executor, and the possession ought to follow.^ But if the plaintiff has not the immediate right of possession, this is not the proper action ; he must proceed by action on the case.^ Nor can one joint owner of a chattel maintain this action against the other.* § 760. This action lies against a landlord who takes goods which are privileged by law, as things protected for the sake of trade, or beasts of the plough, while other things remain on the premises sufficient to satisfy the distress.^ Or if he takes the goods of the tenant when there is no rent in arrear ; or though the rent be due at the time of the seizure, if he afterwards tender the amount due ; for a tender takes away the right to distrain, until a subsequent demand and refusal.^ And if the goods are taken by one, at the command of another, the action may be brought against both, or either.' It lies not only against the person by whose direction the distress was levied, but also against him in whose cxistody it is found.^ But since the Revised Statutes, a landlord is not liable for the unlawful execution of a distress warrant, unless he adopts and claims to avail himself of the officer's acts. And, to constitute a tortious taking, it is not necessary that there should be an actual manucaption of the goods ; a mere claim of dominion, or an inti- mation of an intention to interfere with the goods, uiider pretence of any right or authority, amounts to a constructive trespass, and no demand is necessary before bringing an action.^ The tenant may replevy at any time before the goods distrained have been actually sold.i" And the court will, at any time, stay all proceed- ings in replevin, on a distress for rent in arrear, on the application 1 Bern et ux. v. Mattaire, Cas. Temp. ' 2 Eol. Abr. 431 : Watson, ^Sheriff Hardw. 119. 297. 2 Bro. Abr. tit. Eepl. pi. 56 ; Bui. N. 8 Allen v. Crary, 10 "Wend. 349 • 1 P. 54 ; 2 R. S. 522, § 2. Campb. 187. s 7 Term R. 9. 9 Connah v. Hale, 23 "Wend. R. 462 ■ 5 * McEldery v. Elanagan, 1 Har. & Gill, Cow. R. 326 ; 7 ib. 735. 302. M Jacob v. ICing, 1 Marsh. 135 ; s. c. 5 6 Co. Lit. 160, b. Taunt. R. 451. ^ Slingerland v. Morse, 8 Johns. R. 476 ; Huntley v. Le Conte, 6 Cow. R. 728. SEC. II.J THE ACTION OP EEPLBVIN. 555 of the tenant, upon payment of the rent due, according to the defendant's avowry, and of all costs up to the time of the applica- tion ; ^ and this course is very frequently adopted, for the purpose of gaining time, and preventing a sacrifice of goods, by tenants who have been unfortunately prevented from discharging their rent in time to avoid a distress by the landlord. § 751. At common law this action is strictly local, although brought .for a cause of action for which trespass de bonis asjportatis would lie, and the venue must be laid in the county in which the dis- tress was taken ; or, if it was taken in one county and carried into another, the venue may be laid in either.^ The Revised Statutes, however, place it among transitory actions ; but declare that, when this action is brought for the recovery of goods or chattels dis- trained for any cailse, it shall be laid in the county in which the distress was made, and not elsewhere.^ The plaintiff, also, is bound to show the place where the distress was taken, or at least a place in which the landlord has had it in custody ; * but an omission of this character may be cured by the defendant's pleading over.^ The declaration must conform to the writ ; and where the writ is for the taking and detention of property, the plaintiff cannot declare for the wrongful detention alone. ^ The goods taken must be de- scribed with certainty, although in this respect the same strictness does not prevail as formerly.^ But an allegation of taking divers goods and chattels of the plaintiff, without specifying them, is bad for uncertainty ; and though a judgment pass by default for the plaintiff, the defect is not obviated.^ The nature and quantity of the goods niust be described with such certainty, that the sheriff may be able to make redeliverance of them, though the tenant will not be bound to prove the exact quantity, but may recover less than the declaration alleges.^ § 752. To the declaration, the defendant eithev pleads in bar or abatement, or makes cognizance or avowry. And at common law a landlord, or other person interested in the premises, if not made a defendant, or a lessee for life or years, where the defendant avowed 1 Vernon v. Wynne, 1 H. Black. 24. ^ Gardner v. Humphreys, 10 Johns. E. 2 WUUams v. Welch, 6 Wend. 290; 53. Pitz, N. B. 29, i; Robinson v. Mead, 7 <= Nichols v. Nichols, 10 Wend. E. 629. Mass. E. 353. ' 2 Saund. R. 74, b. o 2 R. S. 522, § 3. ^ Pope y. Tillman, 7 Taunt. E. 642 ; « Walton V. Kersop, 2 Wils. 354 ; s. c. 1 Moore, 386. Abercrombie v. Parkhm-st, 2 B. & P. ^ Bern v. Mattaire, Cas. Temp. Hard. 480; Cro. Eliz. 896. 119. 556 LAW OP LANDLORD AND TENANT. [CHAP. XV. upon the title, might pray in aid of his lessor, that he be called in to defend and be made a party to the suit. This proceeding has been abolished in many of the States ; but to provide for those cases in which the reversioner or remainder-man may desire to come in and defend, the practice which prevails in ejectment has been adopted by the Revised Statutes. " No aid prayer shall be allowed in this action ; but any person having an estate in the lands or tenements upon which the distress in question was made, may, upon special cause shown to the court, and on such terms as it shall think equi- table, be made a co-defendant in the action, or be permitted to de- fend separately, as the case may require." ^ § 753. The general issue in replevin is, non cepit modo et forma, by which the defendant puts in issue not only the taking, but also the taking in the place mentioned in the declarartion.^ The exten- sion of the action under the Revised Statutes rendered it necessary to furnish a new general issue, which should be also comformable to the action of detinue ; they have accordingly enacted : " When the wrongful taking of the property described in the declaration is com- plained of, the plea of the general issue shall put in issxie not only the taking of such goods and chattels, but such taking in the place stated. If the action is founded on the wrongful detention only, and the taking is not complained of, this plea shall put in issue not only the detention of the goods and chattels, but the property of the plaintiff therein." " With the plea denying the taking or deten- tion of the property claimed, the defendant may give notice of any matters which, if properly pleaded, by avowry, cognizance, or plea, would be a bar to the action, and which, if the goods have been replevied, would entitle him to a return thereof ; and he may give such matters in evidence on the trial, in the same manner, and with the like effect, as if the same had been so pleaded. And the plaintiff may plead in answer, to any avowry or cognizance, as many several matters as he shall think necessary for his defence."^ In Virginia, a defendant in replevin cannot plead several matters of defence ; although he is allowed to do so in Indiana. * 1 2 R. S. 520, § 43. State, as containing the best exposition of 2 1 Savind. E. 347 ; 2 Mod. R. 199 ; 2 the general principles of pleading in this Wils. E. 355. action ; as well as being the basis of that 3 2 E. S. 529, § 39, 40, 44, 45. Al- legislation, which is still In force in many though the New- York Code of Procedure of the States. has entirely remodelled and simplified the * Vaiden v. Bell, 3 Eand. 448 ; Martin action of replevin, we yet continue our v. Ray, 1 Blaokf. (Ind.) R. 291. reference to the Revised Statutes of that SEC. II.J THE ACTION OP REPLEVIN. 657 § 754. The plea of cepit in alio loco does not admit the taking as laid in the declaration, and the plaintiff is bound to show his right to recover in the same manner as if the plea of non cepit had been interposed. Under this plea, a defendant will not he permitted to give special matter in evidence, by way of justification.^ Where a plaintiff replies a claim of property to a plea justifying a taking of goods, under a plaint in replevin, he must designate the time of the claim with precision, so that issue can be taken on it. An aver- ment of a claim, at the said time when, &c., referring to the day laid in the declaration, is not sufficient on special demurrer. The place of taking, as well as the village or parish, is material and traversable, and, for want of such averment, the declaration is de- murrable ; and if the taking was in a different place from that mentioned in the declaration, he may plead non cepit, and give that fact in evidence, and nonsuit the plaintiff.^ But the defendant cannot have a return of the goods under this plea ; and, therefore, if he wants a return, he must plead that he took the goods in some other place, describing it, and traverse the place laid in the declara- tion ; and, in order to have a return, avow or make cognizance, stating the cause for which he distrained.^ Nothing in arrear is equivalent to the general issue, when pleaded in bar to an avowry.^ The general issue, strictly speaking, puts in issue every material averment ; ^ not so, however, the plea of riens in arrear. It admits the title of the defendant as stated in the avowry, which, therefore, need not be proved, unless the plea be accompanied by a plea of non-tenure.^ § 755. In answer to the declaration, the -landlord may avow the taking, and show his right, and the cause for which he took them ; or if the landlord's bailiff have made the distress, and the action be against him, he must make cognizance by which he acknowledges the taking in right of his prmcipal, and shows the landlord's right. Where the sviit is against both, the one avows and the other makes cognizance. An avowry is in the nature of a declaration, to which the plaintiff may be compelled to plead or answer, as in other actions. It sets forth the nature and merits of the defendant's case. 1 WiUiams v. Welch, 5 Wend. E. 290; » Crosse v. BHson, 6 Mad. R. 102; 1 McFarland v. Barker, 1 Mass. E. 153. Vent. 127. 2 Lisher v. Pierson, 2 Wend. E. 345 ; * Harrison v. Mcintosh, 1 Johns. R. 1 Saund. E. 347 ; Johnson v. WaUyer, 1 380. Str. 507 ; 2 Mod. 199. ^ Eogers v. Arnold, 12 Wend. R. 80. 8 Bloomer v. Juhel, 8 Wend. E. 448. 47* 558 LAW OP LANDLOED AND TENANT. [CHAP. XT. showing that the distress taken by him was lawful, and is proper in all cases where he expects to have a return.^ Fornaerly more strictness was required in pleading an avowry or cognizance, as well in setting forth the matter in avoidance, as in stating the title which formed the inducement, than in a declaration.^ The land- lord was bound to show a complete title, and if possessed of a term of years only, he was obliged to show the estate out of wMch his term was derived ; because particular estates being created, by agreement of the parties, out of the primitive estates, it was the office of the court to judge whether the primitive estate and agree- ment were sufficient to jjroduce the particular estate.^ In all cases the avowry must still contain sufficient matter to entitle him to a return.* To obviate the difficulties which the avowant had to en- counter, in setting forth a long and intricate title, the statute 11 Geo. II. c. 19, § 22, enabled defendants in replevin to avow or make cognizance in general terms ; ^ that the plaintiff, or other tenants of the lands whereon the distress was made, enjoyed the same under a grant or demise, at a certain rent, during the time wherein the rent distrained for was incurred, which rent was then in arrear ; and that the place where the distress was taken was parcel of the tenements for which the rent became due. § 756. This provision much simplified the ancient practice, and was first introduced into New York by the Revised Statutes. It is still necessary, however, that an avowry should distinctly show a compliance with every provision of the statute applicable to the case, and of every other fact which entitles the party to distrain. Thus it must show a demise ; ^ and care must be taken that it is correctly stated.^ The defendant must show who is tenant,* al- though he need not state in express terms that he is tenant to the avowant ; and if the fact of the tenancy can be collected from the whole of the avowry, it will be sufficient.^ It must appear at what rent the premises were held, and when payable ; ^^ but a defendant has been allowed to recover rent for a less period than he claimed by his avowry to be due to him.^i If substantially bad in part, it is 1 Bac. Abr. tit. Replevin ; 1 Saund. R. ^ Eoulston v. Clarke, 2 H. Black. 563.- 347. " Hayward v. HasweU, 6 Ad. & El. 265. 2 Saiy V. Dally, 1 Ld. Eaym. 331. ' Philpott v. Dobbinson, 6 Bingh. 104. 8 Carth. 445 ; Ld. Eaym. 331 ; Eey- ^ Banks v. Angell, 7 Ad. & El. 843. nolds V. Thorp, Str. 796. 9 Inues v. Colquhon, 7 Bingh. R. 265. * Hopkins v. Hopkins, 10 Johns. E. i° Smith v. Walton, 1 Moore & S. 380 • 369 ; Goodman D. Ay ling, Yelv. 148 ; Eey- 2 Chit. E. 531. nolds V. Thorp, Str. 796 ; Ld. Eaym. 331 ; u Forty v. Imber, 6 East, 434. Bain ». Clark, 10 Johns. 424. SEC. 11.] THE ACTION OP REPLEVIN. 559 bad for the whole. Thus in an avowry for rent, upon taking goods in a place off the demised premises, if only part of the rent avowed for be the subject of distress, the avowry is bad in toto} But where the avowry described the premises as a dwelling-house, with the appurtenances, and it appeared in evidence to be but the upper part of the house that the plaintiff held as tenant, the shop and yard being let to another person ; this was held to be no variance.^ § 757. The statute just referred to has done away with the ne- cessity of any special pleading in this action ; but independent of the statute, to an avowry or cognizance the tenant may plead, denying the demise, or tenure as set forth in the avowry, and throw the issue upon the defendant ; who miist then prove the demise. But if he only shows an agreement for a lease, it is insufficient,^ unless the tenant has occupied and paid rent.* And the terms of the tenancy must be proved as laid, for a variance as to the amount of rent is fatal,^ though it is not a material variance, if it appear that the plaintiff holds for a less term than that stated in the avowry.^ An avowry or cognizance for rent admits the property of the goods in the plaintiff; but if the plaintiffs plea subsequently shows the prop- erty of the goods to be in another, the plaintiff cannot maintain the action.^ The tenant may also show that the demise was bad in law by reason of the coverture,^ or infancy of the plaintiff;^ or if good, that the defendant evicted the plaintiff; i" that the rent was tendered before suit brought ; i^ that the defendant had been satisfied i by a former distress ; ^^ or that nothing is in arrear.^^ A sel^off cannot be pleaded to an avowry for rent : ^* but plaintiff may plead in bar, that he had paid a sum for ground-rent, or taxes, &c.^ A plea of non-tenure to an avowry for rent, setting forth seizin in A. B., and deducing title from him to the avowant, and also showing a rever- sionary interest in the avowant after the termination of the demise under which the distress was made, admits the seizin of the demise to the avowant from the tenant of the freehold ; it only puts in issue the demise under which the distress was taken.^° But a plea to an 1 Burr V. Van Buskiric, 3 Cow. E. 263. m Hunt v. Cope, Cowp. 242. ■ 2 Page V. Chuck, 10 Moore, 264. " 6 Esp. N. P. C. 95 ; Bui. N.^P. 60. 8 Dunk V. Hunter, 5 B. & A. 12 4 Moore, 409 ; 2 B. & B. 86, 602. ^ Knight V. Bennet, 3 Bingh. 361. ^ 3 B. & P. 348, 5 Brown v. Sayce, 4 Taunt. 320. 1* Absolon v. Knight, Barnes, 450; Lay- 6 Porty V. Imber, 6 East, 434 ; 5 Term cock v. TuSnell, 2 Chit. 531. R. 248. 1^ Stubbs v. Parsons, 3 Bar. & Aid. 516 ; 7 Clark V. Davies, 7 Taunt. 72. 2 Dougl. 625. 8 Clark V. Davies, supra. ^^ Bloomer v. Juhel, 8 Wend. 448. 9 1 Marsh. 74. 560 LAW OP LANDLORD AND TENANT. [CHAP. XV. avowry that the landlord holds under a title which in law amounts to a mortgage, but which has not been recorded, and that the plain- tiif holds under the same person from whom the landlord derives title, by a bond fide purchase for a valuable consideration, is good, and a complete answer to the avowry. Nor does such plea amount to a disseisin, inasmuch as it shows that the relation of landlord and tenant does not exist; for the rule that a tenant shall not plead nil habuit in tenementis applies only where there is a tenancy in fact.i § 758. The place of taking a distress for rent is material and traversable ; and where the defendant, in his avowry, states the precise place, or house, the plaintiff may traverse the place in the avowry, though not described with certainty in the declaration. But where the plaintiff does not traverse the place in the avowry, but joins issue on the tenancy, the locus in quo is rendered immate- rial ; and the plaintiff may show the taking of the goods in another place than the house demised, especially where the goods were removed from such house, leaving the rent unpaid, and were seized within thirty days thereafter. If the plaintiff means to make the place material, he must, in his plea in bar, or replication to the avowry, traverse the taking in the place alleged in the avowry, and take issue thereon.^ The plaintiff may plead in bar to the avowry, that the avowant so abused the distress, as to render him- self a trespasser ab initio ; but a plea of de injuria, &c., generally would be bad ; ^ for he must take issue upon some particular alle- gation in the avowry.* An of&cer sued for an act done by virtue of his office, may give any special matter in evidence under the plea of the general issue, without notice ; ^ and has all the rights, and is entitled to the same judgment which a defendant, not an officer, is entitled to under a plea of the general issue, with notice of the special matter.^ The plea of property in a stranger, or in the de- fendant himself, may be pleaded either in abatement or in bar, and entitles the party to a return without an avowry.^ Such plea, however, must contain a traverse of the right of the plaintiff, and if issue be taken upon such plea by replication a;ffirming the property 1 Brown v. Dean, 3 Wend. 208. ' Harrison d. Mcintosh, 1 Johns. R. 2 Jackson dem. De Bidder v. Rogers, 380 ; Quincy v. Hall, 1 Pick. 367 ; 1 Vent. 11 Johns. E. 33. R. 249 ; Martin o. Ray, supra. But nil s Hopkins v. Hopkins, 10 Johns. R. 369. habuit in tenementis is no plea to an avowry * lb. ; 1 Bos. & l^ul. 76. for rent. Parry v. House, Holt, 489 ; 2 6 Coon V. Congdon, 12 Wend. 496. WUs. 208. « Seymour v. Billings, 12 Wend. 285. SEC. II.] THE ACTION OP REPLEVIN. 561 to be in the plaintiff, the material inquiry for the jury is, whether the property is in the plaintiff.^ § 759. If the plaintiff fails to establish an exclusive right to pos- sess and control the property, the defendant is entitled to a verdict. But a defendant will not be entitled to a return of the goods, by simply showing property in a stranger ; he must connect himself with the title of the stranger, and thus establish a right paramount to that of the plaintiff, justifying the taking of the property out of his possession.^ Where a plea of property in a stranger is inter- posed, as well as of non cepit, a verdict for the plaintiff upon the latter plea determines nothing betweea the parties but the taking ; and the plaintiff is not entitled to recover unless the other issue be also found for him.^ On an issue, in which the plaintiff to an avowry for rent pleads, denying the seizin of the landlord, the demise, the tenancy, and the assignment of the plaintiff: evidence that the defendant in replevin holds by virtue of a deed from the grantor of the plaintiff, executed to him as a security for the pay- ment of money; and that the conveyance to the plaintiff was recorded, and the deed to the defendant not recorded, entitles the plaintiff, and not the defendant, to a verdict.* And although a tenant may not dispute his landlord's title, after paying him rent, yet, if by mistake or misrepresentation he pays rent to a person not entitled to demand it, he is not precluded by such payment from giving evidence on a plea of non tenuit in replevin against the sup- posed landlord, whatever tends to show that the latter is not entitled to the rent.^ § 760. Tenants in common must avow for their separate portions, joint-tenants may either join or sever ; ^ but if one joint-tenant or tenant in common have distrained for the rent due for both shares, and the action be brought against one, he should avow for his own share, and for the other share make cognizance as bailiff of his co-tenant.^ If, however, the defendants make cognizance, first, as bailiffs of A. and B., and, secondly, as baiKffs of A. ; B. will not be a competent witness for the defendant to sustain the second cogni- zance, though the defendants gave no evidence to sustain the first cognizance, and offered to abandon it.^ An avowry by an executor 1 Ingraham v. Hammond, 1 HiU (N. ^ Rogers v. Pitcher, 1 Mass. K. S41 ; 6 Y.), E. 353; Lister v. Pinson, 2 Wend. Taunt. R. 202. K 345 ; Tuley v. Mauzey, 4 B. Monroe, 6. ^ Harrison v. Earnby, 5 Term E. 246. 2 Rogers v. Arnold, 12 Wend. 30. ' PuUeuw. Palmer, 5 Mod. 73 ; 12 ib. 26. * Bemus v. Beekman, 3 Wend. 667. ^ Griddlestone v. McGowran, 1 Car. & * Brown v. Dean, 3 Wend. 208. K. 702. 562 LAW OP LANDLORD AND TENANT. [CHAP. XT. must show affirmatively, that the rent fell due before the testator's death.i Where the defendant in his avowry averred that the plain- tiff, as his tenant, held and enjoyed certain premises, for the space of seven years and six months, under a certain demise, and at a certain rent; and by the evidence it appeared that the premises were held by the plaintiff only seven years and sis months, the variance was adjudged to be fatal.^ It is not necessary to aver that the rent continued in arrear at the time of making the avowry.^ Nor is the sum stated in the avowry to be due for rent, material ; for if it appears that less rent is due than defendant has avowed or made cognizance for, he is yet entitled to recover for so much as is due.* But where the avowry is for parcel of a year's rent or penalty only, it ought to show that the residue has been satisfied or discharged, otherwise it will be bad on demurrer.^ If the avowry be for a certain amount, part whereof is not due at the time of the distress, and judgment is entered for the whole, it will be error ; but it may be cured before judgment by abating the avowry as to the part not yet due.^ An avowry justifying the taking a distress for the rent of ready-furnished lodgings is good ; it having been determined that a landlord is entitled to distrain for the rent of ready-furnished lodgings.'' And where the husband distrains and avows for rent arising from the land of the wife, without joinmg her in the proceeding, he must show affirmatively that the rent accrued after the marriage, for this cannot be intended ; and if that fact be not shown, the objection may be taken at the trial.^ Accord- ing to the practice of Pennsylvania, an avowry need not state for what lands the rent arose, nor when it become due.^ § 761. An avowry showing a conckisive bar to the action is a perfect pleading requiring an answer, although it immediately fol- lows a plea of property in a stranger ; and it is not to be considered as matter, pleaded to induce a return of the property ; a party under such plea being entitled to a jeturn without avowry or cog- nizance.^'' But an avowry of taking goods off the demised premises, 1 Wright V. "Williams, 5 Cow. E. 338, ^ i gaund. R. 285, n. 6, 8 ; Harrison v. 501. Baxnby, 5 Term R. 248. 2 Tice V. Norton, 4 Wend. 663. ' Newman v. Anterton, 2 Bos. & Pul. 8 Clark V. Daries, 7 Taunt. 72. N. R. 224. * Per Ld. EUenborougli in Forty v. * Decker v. Livingston, 15 Johns. R. Imher, 6 East, E. 487. 479. 6 Shepherd v. Boyce, 2 Johns. E. 448; ^ Albright v. Pickle, 4 Yeates, 264; Hunt V. Baines, 4 Mod. R. 402 ; Johnson Weidell v. Eosenberry, 13 S. & E. 180. V. Baines, 12 ib. 84; Cro. Car. 104. w The People v. New York, C. I>., 2 Wend. 644. SEC. II.] THE ACTION OF EEPLBTIN. 563 for rent arrear, should show affirmatively that possession contintied on the part of the tenant, if the lease has expired ; or it will be had on general demurrer.^ Both parties being actors in replevin, the plaintiff in respect of his action, and the defendant in consequence of his having made the distress, being a claim of right, and the avowry in the nature of a declaration, either may notice the cause for trial ; yet, at common law, neither can move for judgment as in case of nonsuit.^ And the jury may give such damages as they think the party is justly entitled to for the injury sustained.^ Where a plaintiff in replevin to an avowry for rent pleads a tortious eviction by the landlord, such plea is not sustained by proof that the landlord entered by virtue of summary proceedings for the non- payment of rent. And although such entry be found by special verdict, the tenant is not entitled to judgment in this action for goods subsequently taken as a distress for rent, where he pleads a tortious eviction. To enable him to . Evans, 2 Cowp. N. P. road Co., supra ; 2 Wils. 309 ; 2 Black. R. C. 491. 833 ; 7 B. & C. 486. As to what particu- 8 Stewart v. Doughty, 9 Johns. R. 108. lar acts amount to a trespass, and what If any person be disseized, ejected, or put not, see Hartley v. Moxham, Q. B. 21 L. out of any lands or tenements in a forcible J. R. 57. manner, or, being put out, be afterwards ^ Price v. Heyler, 4 Bingh. 597-604 ; holden and kept out by force, or with Bac. Abr. Trespass, E. 669-674. strong hand, he shall be entitled to main- ' 1 Saund. R. 84 ; Cro. Jac. 262 ; 5 B. tain an action of trespass, and shall recover & C. 879. therein treble the damages assessed by the * lb. ; 11 Mod. R. 75. jury, or by a justice of the peace, in cases provided by law. 2 R. S. 2d ed. 262, § 4. 576 ■ LAW OP LANDLORD AND TENANT. [CHAP. XV. one continued act, but there is time for the property of the divided chattel to settle in the lessor, trespass will lie.^ And the reason why he is not otherwise liable is, that he has a special property or interest in them for repairs and shade ; and, therefore, if the trees be excepted in the lease, it will make him a trespasser equally with a lessee at will ; and it will lie against tenant at will, because such acts determine the will ; but against a tenant by sufferance the les- sor cannot have trespass before entrance. And though trespass will lie against the lessee for years for cutting the trees where they are excepte'd in the lease, yet if he put in his cattle to feed, and they bark the trees, trespass will not lie.^ It may also be observed, that if a person having a legal right of entry on land enter by force, though he may be indicted for a breach of the peace, yet he is not liable to a private action of trespass for damages, at the suit of the person who has no right, and is turned out of possession.^ And where a tenant holds over his term, and the landlord enters by force and turns him out, he cannot maintain trespass agaiaist the landlord.* But a party who has obtained possession by force has not a sufficient possession to maintain trespass against the owner for a removal of his goods off the land.^ § 780. In trespass to personalty, it is essential that the plaintiff be in possession, or entitled to the immediate possession of the property, at the time the trespass was committed ; for it is a posses- sory action, and lies only in favor of the party who has such imme- diate right of possession. And if the right of possession at the time is in another, the plaintiff's interest is merely reversionary ; and trespass will not, in general, lie by a reversioner.^ The gene- ral owner, who has an absolute property in chattels, may maintain trespass, though he has never had actual possession, if he be enti- tled to the immediate possession ; because a general property in personalty gives a constructive possession. But if the general owner has given another a special property as against himself, he cannot maintain trespass, because he has no immediate right of 1 Herlakenden's case, 4 Co. ; Moor, 248. sion, he must show an injury so permanent 2 Co. Lit. 57; 1 Raym. 739. in its nature as to aflect tlie value of hisre- 8 Erwin v. Olmsted, 7 Cow. R. 229. versionary interest; for if the injury only * Hyatt V. Wood, 4 Johns. R. 150; affects the possessory interest, the party Ives V. Ives, 13 Johns. R. 235. in possession should sue. Bell v. Twenty- 's Brown v. Dawson, 4 P. & D. 855. man, 1 G. & D. 223 ; 3 Wils. 361 ■ 1 M & " Putnam v. WyUe, 8 Johns. R. 432; S. 334; 6 Scott, 691. What amounts "to Smith V. Miller, 1 Term R. 480 ; Ward v. such an injury, see Tucker v Newman 3 Macauley, 4 iJi. 489 ; 2 East, 88. When a P. & D. 14. reversioner sues for an injury to his rever- SEC. III.] TRESPASS ON THE CASE. * ' 577 possession.^ The plaintiff must also, at the time of the trespass, have been entitled to the exclusive possession as against the defend- ant, although the duration of his interest may be limited. There- fore one tenant in common, joint-tenant, or parcener, cannot maintain trespass, but only case, against the other, for an abuse of the thing in common, as by holding exclusive possession thereof ; but if he destroys it he may maintain trespass, as such destruction amounts to a severance of the tenancy.^ The pulling-down of a wall, however, by a tenant in common, in order to rebuild it, does not amount to a destruction if rebuilt.^ And .where the defendant hired a steamboat for an excursion to a certain place, the captain navigating her, it was held that the defendant had not such an exclusive possession of the boat as to justify him in forcibly turn- ing out a stranger, whom the captain had allowed to come on board.* § 781. A similar rule prevails with regard to trespass upon realty. A right of property is not always required for this pur- pose, as actual possession is sufficient against any party who camiot show better title, or as against a mere wrongdoer.^ Thus a party in possession of lands under a mere parol license, or even an intruder thereon as against a wrongdoer, may maintain trespass.^ And a female servant has such a possession of her bedroom as will entitle her to maintain trespass against a person who wrongfully forces himself into it whilst she is there.'' So of a carpenter, in possession of premises to repair them.^ Trespass quare clausum fregit can only be maintained by the person who is in possession of the land, either actually or constructively, at the time the injury is done ; a lessor, therefore, cannot maintain such action against a stranger, while there is a tenant in possession.^ But where a per- son is put in possession by the landlord, merely to prevent the trespasses of others, the landlord may bring the action, notwith- ' Van Eensselaer v. Radcliff, 10 "Wend. ^ Stuyresant v. Dunham, 9 Johns. E. 639 ; 3 S. & E. 613 ; Gordon v. Harper, 7 61 ; Graham v. Peat, 1 East, E. 246 ; 4 Term R. 9 ; 16 East, 33 ; 2 Saund. E. 47, Taunt. 547 ; 4 B. & C. 574. note a. " Harper v. Charlesworth, 6 D. & E. 2 Wilson V. Mackreth, 3 Burr. 1824 ; 672 ; s. c. 4 B. & C. 574. Voyce V. Voyce, Gow.-201 ; 2 Saund. 47, ' Lewis v. Ponsford, 8 C. & P. 687. h ; 1 T. E. 658. Whoever has an exclu- » Hale v. Davis, 2 C. & P. 33. give right to the soil, as to grow a crop of ' Stuyvesant v. Tompkins, 9 Johns. 61 ; wheat growing thereon, may maintain this 12 Johns. E. 183 ; 8 Mass. E. 415 ; 2 action. Austin v. Sawyer, 9 Cow. E. 39. Browne, E. 106 ; 4 Yeates, 218 ; 6 Band. 8 Cuhittr). Parker, 8 Bam. & Cress. 257. E. 8; 9 Conn. E. 216; 1 Wend. E. 466; * Dean v. Hogg, 10 Bingh. E. 345 ; 4 10 ib. 110 ; Lienow v. Ritchie, 8 Pick. 235. M.& Scott, 188; 6 C. & P. 64. 49 578 LAW OP LANDLORD AND TENANT. [CHAP. XV. standing such agent may have been allowed to cultivate part of the land for himself.^ Nor can the landlord sue an under-tenant in trespass, even for an injury done to the freehold.^ An actual dis- possession is not necessary, but any unlawful interference with the property of another, or exercise of dominion over it, by which the owner is injured, is sufficient to maintain this action.^ But where a defendant, claiming a sum of money to be due to him from the plaintiff, his lodger, locked up plaintiff's goods in a room which he held of defendant, and in which the plaintiff had put them, kept the key,, and refused plaintiff access to them, saying that nothing should be removed until defendant's bill was paid ; the court held there was no such dispossession of the goods as would sustain an action of trespass.* Where land is vacant, or the actiial possession cannot be shown, the person having legal title will be deemed to be in possession, so as to maintain trespass ; ^ and the landlord of a tenant at will may bring trespass against him for any voluntary waste, because such injury woiild amount to a deter- mination of the tenancy, and the landlord is entitled to possession.® § 782. A tenant for years may support trespass against a stran- ger, or even his landlord.' But as to a tenant at will, or by suffer- ance, although he may maintain trespass against a wrongdoer, he cannot against his landlord, even if violently dispossessed ; for an entry by the landlord determines his tenancy.^ Nor can a lessor have trespass against a sub-tenant of his lessee, for trespass com- mitted during the term.^ But an interest in the profits of the soil is sufficient for the purposes of this action ; as where a man pur- chases grass or other crop upon another's land, and a wrongdoer cuts and carries it away, trespass lies in favor of the purchaser, for the law holds him to be in possession. i° If the tenant has assigned all his interest in the crop to another, trespass should be brought in the name of the latter for the wrongful taking away such crop ; ^^ and he may maintain the action even against the owner of the land.^ But where the owner or possessor of land works it on 1 Dayis v. Clancy, 3 McCord, R. 422. ' Faulkner v. Anderson, Gilm. R. 221 • 2 Tobey v. Webster, 3 Johns. R. 468. 1 Saund. 322, note 5. 3 Allen V. Craig, 10 Wend. R. 349. « Hyatt v. Wood, 4 Johns. R. 150, 313 : * Hartley v. Moxham, 3 Ad. & El. Q. 4 B. & C. 583 ; 9 Bingh. 356. B. R. 701. 9 3 Johns. R.468. 5 Vsui Rensselaer v. Radcliff, 10 Wend. i" Stewart v. Doughty, 9 Johns. R 108 ■ R. 639 ; 12 Johns. R. 183 ; 2 Hayw. 402 ; 6 East, 602 ; 5 B. & C. 827 ; 2 M. & S. 499. 8 Cow. 115 ; 5 Bingh. 7 ; 4 Taunt. R. 517. ii Carter v. Jarvis, 9 Johns. R. 143. » Suffern v. Townsend, 9 Johns. R. 35 ; '^ Wilber v. Paine, 1 Ohio, R. 117. 4 Kent, Com. 118. SEC. III.] TRESPASS ON THE CASE. 579 shares with another, they are tenants in common of the crop, and must hoth sue for an injury done to it.^ Merely clearing out a fishing-place in a public river does not give such a possession of it as will maintain trespass.^ § 783. A disseizee may have trespass against a disseizor for the disseisin itself, because he was then in possession ; but not for an injury after the disseisin, until he hath gained possession by re-entiy, and then he may support this action for an intermediate damage.^ But it does not lie against a person coming in under the disseizor.* So where the defendant is put into possession under a writ of restitution, on an indictment for a forcible entry against the plaintiff, and the proceedings are afterwards quashed and restitution awarded, the plaintiff may maintain trespass against the defendant, but not against a person acting under license from him.^ A person having a mere incorporeal right, as of common of pasture, cannot support trespass quare clausum fregit, for treading down the grass growing upon the land upon which he has such right of common ; for though he has a right to pasture his cattle there, he has no exclusive right of possession to the land.^ But wherever an exclusive right exists, trespass will lie, though the party has not the absolute right to the soil, or the whole property therein.^ And though the possession must be exclusive, it need only be so to the extent of the trespass ; for a party who has ' dedi- cated a street to the public may, notwithstanding, maintain tres- pass for any injury to the soil thereof, because he has the exclusive possession of the freehold.^ For injuries to real property incorpo- real, as a franchise, right of way, or common, inasmiich as the property cannot be affected immediately or tangibly by any sub- stance, no injury thereto can be considered as committed with force, and consequently trespass will not lie. Por^the same reason, trespass cannot be supported for a non-feasance, for where there has been no act there can be-rno force ;^ and, therefore, case is the proper remedy for a mere detention of goods, without an unlawful ^ Fowler v. Colvin, 3 Johns. R. 216 Demott V. Hageman, 8 Cow. R. 220. 2 WestfaU V. Van Anker, 12 Johns. R 423. 8 Tohey v. Webster, 3 Johns. R. 471 : 2 Rol. Abr. 553 ; Dyer, 985. * Lifford's Case, 11 R. 56. ^ Case V. Degoes, 3 Caines, E. 261 Wickman v. Freeman, 12 Johns. R. 184. 6 1 Term R. 430; 2 Rol. Abr. 522, N, pi. 8 ; Bac. Abr. Trespass, C. 3 ; 3 Burr. 1825; Cro. Eliz. 421. ' 3 Burr. 1563, 1824 ; 2 M. & S. 499 ; 5 East, R. 485; Cro. Eliz. 421; Stultz v. Dickey, 5 Binn. 285. 8 Lade u. Shephard, 2 Stra. 1004; 1 Wils. 110. 9 3 East, 502 ; 1 Stra. 636 ; 1 B. & P. 476 ; 1 Ld. Raym. 188. 680 LAW OP LANDLOED AND TENANT. [CHAP. XV. taking ; a neglect to repair the banks of a river, whereby the plain- tiff's land was overflowed ; or a neglect to redeliver a beast dis- trained damage-feasant, when sufficient amends were tendered before the beast was impounded.^ § 784. With respect to the plaintiff's right or interest in the property affected, trespass is, as we have seen, an injury to the possession ; and unless, at the time the injury was committed, the plaintiff was in actual possession, the action of trespass quare clausum fregit cannot be maintained.^ . For this reason the land- lord cannot, during a subsisting lease, support trespass, but the action must be in the name of the tenant,^ or the landlord must proceed in case, as a reversioner ; unless the injury was committed to trees, or other property excepted in the lease, or the trees were severed and carried away, when the latter may support trespass for cutting and carrying away the same.* So if land be granted to A., with a reservation of all mill-seats, and the grantor permits B. to enter and erect a mill, the entry of B. and the erection of a mill is a severance of the freehold, and renders the mill a distinct close ; and B. may maintain trespass against A. for pulling down the mill.^ But the mere occupation by a servant, of premises, he paying no rent, is to be considered the possession of the employer, who may declare as on his own possession.^ A party may sue for the continuance of a nuisance, though erected before he was pos- sessed of the property in respect of which he sues.^ It lies against either the party who erected it, even though he has no right to enter upon the land to abate it, or the occupier who continues it, because every continuance of it is a fresh nuisance.^ In general, the owner is not liable, as such, for a nuisance, being a mere non- feasance, but he may be liable as the original erector ; and if he demise the land after erectmg a nuisance, he is liable for the con- tinuance of it, though out of possession as the demise affirms it.^ But the owner, though not in possession, is liable for a nuisance 1 The Seneca Railroad Co. v. The Au- 8 East, 190; 4 Taunt. 316; Ward v. An- burn Railroad Co., 5 Hill, R. 170 ; 2 Saund. draws, 2 Chit. R. 636 ; Baxter v Taylor R. 47, k. ; 8 Co. 146 ; Fitz, N. B. 93. 1 Nev. & Man. 11. ' 2 Stuyresant v. Tompkins, 9 Johns. R. * Van Rensselaer v. Van Rensselaer, 9 61 ; Wickham v. Freeman, 12 Johns. R. Johns. R. 877 ; Jackson & Loux v Bu'el 183; Addlemant). "Way, 4 Yeates, 218; 3 16.299. S. & R. 514 ; Allen v. Thayer, 17 Mass. R. « 16 East, E. 38-36 ; Ball v. GuUimore 299 ; 5 East, R. 485. 1 Gale, 96. " Campbell v. Arnold, 1 Johns! R. 511 ; ' Tliompson v. Gibson, 7 M & W 456 Tobey v. Webster, 3 ib. 468 ; Catlin v. s ji 5 j^gp ^qi, a. Heyder, 1 Ver. R. 375. 9 3 Nev. & Man. 627 ; 1 A. & E. 822 • ^ 1 Saund. R. 322, n. 5 ; 7 Term R. 13 ; 2 H. Black. 849. SEC. III.J TRESPASS ON THE CASE. 581 arising from non-repair, wlien he is by covenant the party to repair ; if otherwise, tlie occupant is the party liable.^ And so the landlord is liable if he lets premises, the natural consequence of the regular use of which is, that they will become a nuisance unless attended to.2 § 785. If a party having title enters upon land, or takes posses- sion, he may treat as trespassers all those who afterwards come upon it ;^ or who, having unlawfully taken possession in the first instance, wrongfully continue on the land. As where a remainder-man entered upon a party in possession by intrusion, it was held that trespass lay by the remainder-man against the intruder.* But where a party has come lawfully into possession, and remains after his right has expired, as in the case of a tenant holding over, the owner is not, it seems, justified in entering and expelling him, or his goods, by force ; ^ becaiise such force, being an abuse of an authority in law, makes the entry a trespass ab initio; and there- fore if the party ousted bring trespass, the defendant cannot justify the expulsion, for want of a lawful possession, and whether the entry was forcible or not is a question for a jury.^ The English books draw a distinction between personal and real property, as to the owner's right of action. With regard to the former, they hold, as we have seen, that the general property draws to it the possession sufficient to enable the owner to support trespass, though he has never been in possession ; '' but, as to real property, there is no sucli constructive possession ; and unless the plaintiff has the actual possession, by himself or servant, at the time the injury was committed, he cannot support the action.* But in this country we have carried the principle, as to real property, further than has been done in England ; and we allow the owner to maintain tres- pass without an actual entry, on the principle that possession follows the ownership, unless there be an adverse possession.^ 1 4 Term R. 318 ; 2 H. Black. 349. 385 ; Wickham v. Foreman, 12 Johns. E. 2 3 Nev. & Man. 627; 1 A. & E. 822. 184; Bush v. Bradley, 4 Day, R. 306 ; ^ Hay V. Moorhouse, 8 Scott, 156. Lunt v. Brown, 13 Maine, R. 236 ; Row- * Butcher v. Butcher, 7 B. & C. 399 ; 1 land v. Rowland, 8 Ohio, R. 40 ; AndAson M. & R. 220. u. Nesmith, 7 N. H. R. 167. For aU pur- ^ Hilary t). Gay, 6 C. & P. 284; 1 Scott, poses of the remedy, the law annexes a N. E. 491; s. c. 1 M. & G. 644. constructive possession to the right of ^ Newton v. Harland, 1 Scott, N. R. 491. possession ; and where the owner, having '' 2 Saund. E. 47, a; Bui. N. P. 33; been ousted for a time, is, by entry or ante, 384. ejectment, finally restored, the law ad- ^ Bertie v. Beaumont, 16 East, R. 83 ; judges his possession never to have been 5 ib. 485 ; Bac. Abr. Trespass, C. 3. discontinued. Jackson v. Sellick, 8||Tohns. " Van Brunt v. Schenck, 11 Johns. R. R. 270 ; Davis v. Clancy, 3 McCord, R. 49* 582 LAW OP LANDLORD AND TENANT. [CHAP. ST. The right of action for a trespass is, at commoii law, strictly per- sonal, and does not survive against the personal representatives of the deceased trespasser ; though if his estate has been benefited by the trespass, it may be made responsible to that extent in another form of action. But tlie Revised Statutes of New York authorize this action to be brought against the executor or administrator of any testator or intestate, who, in his lifetime, shall have wasted, destroyed, or carried away the chattels of any such person, or committed any trespass on the real estate of any such person. 422; Hannati v. Dansby, 2 Hill (S. C), is then considered as having been in pos- E. 466 ; 1 Mass. E. 483 ; 2 Hayw. E. 402 ; session according to his right. Dewey v. 1 Dev. & Bat. 40. If he shows a right of Osborn, 4 Cow. E. 329 ; Morgan v. Varick, possession at the time the defendant went 8 Wend. 587 ; Leland u. Tousey, 6 Hill, in, it is a right which continues to the 828. time of the recovery and re-entry, and he CHAP. XVI. J OP POKCIBLE ENTRY AND DETAINEE. 583 CHAPTEK XVI. OF FORCIBLE ENTRY AND DETAINER. § 786. A POBCIBLE entry and detainer consists in Tiolently taking or keeping possession of lands or tenements, by force or with threats, and without authority of law. The exercise of this privi- lege was, at common law, allowed to every person disseized of his lands, unless an entry had been taken away, or barred, by his neg- lect to enter in due time. But this licentious course of procedure, by giving an opportunity to powerful men, under the pretence ol feigned titles, to eject their weaker neighbors, or by force to retain a wrongful possession, was found to be so prejudicial to the public peace, that it became necessary to restrain men from the use of all violent methods of doing themselves justice. The Ee vised Statutes of New York, corresponding substantially with those of the other States, as well as with the old prohibitory English statutes, declare, " that no entry shall be made into any lands or other possessions, but in cases where an entry is given by law ; and in such cases only in a peaceable manner, and not with strong hand, nor with multi- tude of people." The statutes then proceed to punish any violation of the law by imprisonment, as for a public offence ; and at the same time to restore to the aggrieved person the possession of the premises from which he had been forcibly ejected or detained. The proceedings were originally in the form of a criminal prosecu- tion, and an indictment will still lie at common law ; biit by the gradual addition to the statute of provisions looking to the restitu- tion of the property, the remedy has become a private rather than a public one, although the form of the proceeding, and the rules of law which govern it, remain to a great degree unchanged.^ § 787. To make an entry forcible there must be such acts of vio- 1 2 N. Y. R. S. 507, § 1 ; 2 Ed. iii. ; 8 the appUcation of this act to all tenants Hen. VI. eh. 9; 31 Eliz. ch. 11. The who hold over after a determination of the Statutes of Massachusetts, ch. 104, § 2, lease, either by its own limitation, or by a and of other New-England States, extend notice to quit. 584 LAW OF LANDLORD AND TENANT. [CHAP. XVI. lence used, or such threats, menaces, or gestures, exhibited, as give reason to apprehend personal injury or danger in standing in de- fence of the possession. If there is no other force made use of than is necessarily implied in every mere trespass, the case is not within the statute ; and therefore the breaking of the lock of an outer door is not in itself sufficient to sustain a complaint of this descrip- tion.^ The same circumstances of violence or terror, which make an entry forcible, will make a detainer forcible also ; and whoever keeps in the house an unusual number of people, or unusual weapons, or threatens to do some bodily hurt to the former posses- sor if he dare return, will be adjudged guilty of a forcible detainer, though no attempt be made to re-enter.^ The mere act of nailing up the door of a house does not amount to retaining a forcible pos- session.^ Any person, however, claiming to have a right of entry into lands may freely exercise that right, provided he commits no such acts of violence as will subject him to a criminal prosecution.* For this reason, a warrant will not lie for forcibly taking possession of a ferry, with the adjacent banks and shores of the river, where the party taking possession has a right of ferry established ; for a ferry is an incorporeal right, upon which no forcible entry can in fact be made ; nor can the sheriff, in case of a judgment of restitu- tion, deliver possession of a ferry .^ But it is no excuse that the accused entered upon the premises to make a distress ; or to en- force a lawful claim ; nor that he was already in the house, or that, having entered by force, possession was ultimately obtained by entreaty.^ The offence may also be committed by a lessee, who 1 Willard v. "Warren, 17 Wend. R. 257, be supported by evidrnce of a mere tres- where the docti-ine of forcible entry is pass ; but there must be proof of such elaborately discussed by Judge Cowen ; force, or at least such show of force, as is Rex V. Storer, 3 Burr. R. 1702 ; Rex v. calculated to prevent any resistance. Rex Bathurst, ib. 1699 ; Pennsylvania u. Bob- v. Smyth; 5 Car. & Pay. 201 ; 1 M. & inson, Addis. R. 14, 43; Commonwealth Rob. 156, where four men entered a build- D. Dudley, 10 Mass. R. 409; Same «. Shat- ing, occupied by another, at night, and tuck, 4 Cush. R. 143 ; Rex v. Wilson, 8 avowed their intention to keep possession, T. R. 357. Proceedings under these acts it was held to be sufficient evidence of should be discouraged unless the party force. Scarlet v. Lamarque, 5 California charged has been guilty of an evident R. 63. force. Respublica v. Desore, 1 Yeates, ^ xhe People v. Rickert, 8 Cow. E. R. 501. To constitute a forcible entry, or 226 ; 10 Mass. R. 403. a forcible detainer, it is not necessary that ^ Hopkins v. Buck, 3 A. K. Marshall, any one should be assaulted, but only 110. that the entry or detainer should be with * Langdon v. Potter, 3 Mass. R. 215 ; such numbers of persons and s/iow of force State v. Johnson, 1 Dev. & Bat. 324; the as is calculated to deter the rightful owner People v. Smith, 24 Barb. R. 16 ; and see from sending such persons away, and re- ante, § 524, note. suming his own possession. Milner v. ^ Rees v. Lawless, 8 Littel (Kv.) R. McClean, 2 Car. & Pay. 17 Abbott. So 184. an indictment for a forcible entry cannot « Com. Dig. Forcible Entry A 2 • 8 T. E. 361. ■ ' CHAP. XVI.] OF FORCIBLE ENTRY AND DETAINER. 585 forcibly maintains possession when his term has expired ; by a mortgagor, after the forfeiture of the mortgage in cases where the common-law doctrine of mortgage prevails ; by the feoffee of a dis- seizor, after entry or claim of the party disseized ; or by a tenant, when he forcibly resists a distress for rent.^ § 788. If the tenancy of a house has terminated, and the tenant has promised to leave on a particular day, but does not, the land- lord is not justified in putting him out by force ; but if, the tenancy being ended, the tenant has left the house with his family and furniture, and locked it up, the landlord may break in and obtain possession, without violating the statute.^ If, however, after the expiration of the term, the tenant remains in possession of only a single apartment of the house ; or if, after notice to quit, he aban- dons the house and locks it up, leaving some articles of furniture in it, the landlord is not justified, in either case, forcibly to assert his right of possession, and, if he attempts to do so, will render himself liable to an indictment for a forcible entry .^ The repre- sentative character, with which a person happens to be clothed, will not shield him from the consequences of his forcible acts. And if the trustees of a church who are, virtute officii, lawfully seized of the ground and buildings belonging thereto, close its doors against the minister and congregation, who break and enter the church by force, an indictment, or proceeding, for a forcible entry, at the instance of the trustees, will lie against them, for the forcible entry. Having the key of the church is primd facie evidence of possession, but does not preclude an inquiry into the fact, who are the legal trustees, and have the right of possession.* § 789. By the New York, statute, the complaint may be made by any person having an estate of freehold, or for a term of years, in the premises then subsisting, or some other right to the possession thereof, stating the same. The construction given to the English statutes on this subject narrowed the remedy to cases where the relator Was seized of an estate of freehold or for a term of years,^ ♦ 1 Com. Dig. Justices, B. 1. * The People v. Eunkle, 9 Johns. E. 2 Hilary v. Gay, 6 Car. & Pay. 284. 147 ; 8 *. 464. When a church or other See ante, § 524, 698. corporation institutes a proceeding of this ^ Newton v. Harland, 1 Scott, N. R. character, it must be in the corporate 473 ; s. c. 1 Man. & Gr. 644 ; Darrell v. name, and not in the individual names of Johnson, 16 Pic]£. B. 266 ; Turner v. the trustees. The People v. Fulton, 11 -Meymott, 7 Moore, 574 ; 1 Bingh. 158. N. Y. R. 94. See Hilary v. Gay, 6 Car. (fc Pay. 284 ; ^ 15 Rich. II. c. 8 ; 31 Eliz. c. 11 ; 21 Newton v. Harland, 2 Scott, N. E. 474 ; 1 Jac. I. c. 15 ; 1 Hawk. P. C. C. 64, note. Man. &Gr. 644; 2 Jur. 350. 586 LAW OF LANDLORD AND TENANT. [CHAP. XVL and the consequence was, that in every other instance of a forcible entry or detainer, so far as this remedy was concerned, the wrong- doer, although he entered by force and without right, was pre- ferred to the quiet occupant thus dispossessed ; for if the former could show on the traverse that the latter had no estate within the purview of these acts, as thus construed by the courts, he was entitled to a verdict. But it will be perceived our statute extends the remedy to any other right of possession ; under which it has been held, that any person in the actual and peaceable possession of lands, at the time of a forcible entry, or in the constructive posses- sion, at the time of a forcible holding out, is entitled to proceed under the statute, although he is neither seized of a freehold, nor possessed of a term of years in the premises.^ But unless there is possession in another at the time of entry, whatever be the degree of force, the entry is not an offence of the character of which we are treating.^ A person, however, may have had possession con- structively, when he was never, in fact, upon the land ; and whether he had such possession or not is always a question for the jury.^ But a mere trespasser, or intruder, cannot institute pro- ceedings under this statute, and be restored to the possession of that which he held unlawfully ; for the legislature only intended to extend this remedy to such persons as have a lawful right of pos- session.* § 790. The complainant, in those States where the English sta1> ntes have been adopted, must allege that he was seized in fee, for life, or for a term of years, and that he was turned out of pos- session by strong hand, or held out of possession in the same man- ner.^ Consequently, if the under-tenant is disseized, he is the only 1 The People v. Van Nostrand, 9 Wend, which he held unlawfully ; but every per- K. 50. son lawfully in possession, and forcibly ex- ^ Pennsylvania v. Waddle, Addis. R. eluded from such possession, is entitled 43, 315, 355 ; Mavis v. Sparks, 2 South, to the benefit of the statute. An estate (N. J.) R. 513. The possession of a ten- at will is an interest recognized by law, ant at will is not the possession of the les- and is of value to the tenant ; for, though sor, so as to enable him to maintain this he holds during the pleasure of the' lessee, proceeding against a third person for ex- yet, when his estate is so determined, he pelling the tenant. Commonwealth v. is entitled to the emoluments, and, for the Bigelow, 3 Pick. R. 31 ; Bennett v. Mont- purpose of bringing an ejectment, is con- gomery, 3 Halst. R. 59. sidered a tenant from year to year ; and 8 Chiles V. Stephens, 3 A.'K. Marshall, he may therefore maintain these proceed- 340. ings. Per Savage, C. J., in The People « The People v. Reed, 11 Wend. 157. A v. Reed, 11 Wend. R. 157. complainant is now entitled to restitution ^ 1 Hawkins, P. C. 274 ; The People if he has any right to possession. A mere v. Shaw, 10 Mass. R. 403 ; 8 .Tohns. R. intruder or trespasser cannot institute pro- 464 ; Rex v. Bath et al., 8 D. & E. 367. ceedings, or be restored to a possession CHAP. XTI.J OP FORCIBLE ENTRY AND DETAINER. 587 person entitled to make the complaint.^ The complainant's inter- est should be truly stated ; but if a lawful possession is averred it is enough, unless a want of precision in the statement should be objected to, before the taking of the inquisition before the judge. But since the enactment of the Revised Statutes in New York, it is no longer necessary in that State for the complainant to aver, that he was seized of a freehold, or possessed of a term of years, for mere possession is sufficient. Accordingly an affidavit that the com- plainant was lawfully and peaceably possessed of the premises in question, as tenant thereof, under the executors of A. B., deceased, who was the owner of the same, vnthout setting forth the nature of the estate by virtue of which such possession was held, was deemed sufficient within the provisions of the statute, even upon an objec- tion taken that the complainant was a mere tenant at will.^ It is of no importance whether the seizin be by right or by wrong, nor whether the term of years be legal or not.^ But a man who was neither in possession, nor had title at the time the entry was made, cannot, by a subsequent purchase, acquire a right to institute this proceeding.* It is only necessary to set forth a general description of the land;^ but the description must be sufficient to afford a giiide to the sheriff, in executing the writ of restitution .^ § 791. The complaint must be presented in writing, accompa- nied by an affidavit of the facts which justify the proceeding, to any of the authorities authorized to issue process, to dispossess a tenant by summary proceedings ; upon which the Justice will issue a precept to the sheriff, or a constable, of the county, requiring him to summon a jury to inquire of such forcible entry or detainer ; 1 Toder v. Easeley, 2 Dana, R. 245. ^ xhe People v. Eeed, 11 Wend. E. According to the California cases, the 157 ; The People v. Van Nostrand, supra. plaintiff must have been in actual posses- See Appendix, No. XXVII. sion. Preston !;. Kehoe, 15 California R. ^ 11 Johns. R. 504; State of New 315. But the statute does not require Hampshire v. Pearson, 2 N. H. E. 550; actual occupancy, for actual possession Mavis t;. Sparks, 2 South. (N. J.)B. 513; consists as much of a present power and 1 Yeates, Penn. R. 501. right of dominion, as of an actual corporal * Lewis v. Stitle, 2 Litt. 294 ; 3 ib. 466. presence in the house. Minturn v. Burr, In New Jersey, the nature of the estate of 16 ib. 107. The plaintiff must show a de- the party aggrieved must be stated in the mand in writing for the premises ; and, if complaint. Wall v. Hunt, 4 Halst. 37. there be a tenancy from year to year, he But the defendant is not allowed to show must show that he has terminated the that the complainant has a different estate tenancy by a proper notice to quit. Sul- in the premises from that which he avers livan V. Gary, 17 ib. 80. He must have in the complaint. Allen v. Smith, 7 been in peaceable possession at the time Halst. 199. of the entry ; and a lessor cannot maintain ^ Moore v. Massie, 3 Litt. 296. the proceeding for an unlawful entry upon ^ Murphy v. Lucas, Ohio Con. E. 350 ; the possession of his tenant. Treat v. Martin & Yerger, Term E. 193 ; 2 South. Stuart, 5 CaUfornia, E. 113. (N. J.) E. 849. 588 LAW OP LANDLORD AND TENANT. [CHAP. XVI. and, at the same time, will notify the person against whom the com- plaint is made of the issuing of siich precept, and of the time and place of the return thereof.^ At the time and place, appointed for the return of the precept, the jury will make inquisition under oath, and deliver the same to the judge. And the magistrate has no authority to try the issue without a jury, although neither f)arty should require it.^ The defendant is entitled to produce witnesses before the jury of inquiry, to cross-examine the complainants' wit- nesses, and to sum up the evidence to the jury.^ The only ques- tions to be tried at this stage of the proceeding are, the previous actual possession of the complainant, and the forcible character of obtaining or holding possession, and not the right of possession. The proof of the complainants' estate is to be made before the ma- gistrate when the complaint is preferred, and the statute nowhere autliorizes the jury to investigate the title, or the right of posses- sion of either party.* If, by the inquisition, it shall be found that a forcible entry has been made, or, that the entry being peaceable, possession was forcibly kept ; and the defendant does not traverse the inquisition within twenty-four hours after it is found, the ofiScer must award restitution of the premises, assess the costs and expenses of the proceedings, and issue a precept to the constable, directing him to re-instate the complainant in his possession. But after the finding of such an inquest, the party complained against may ^ravers'fe the inquisition in writing, denying such forcible entry, or forcible holding out, or alleging that he, or his ancestors, 1 For a precedent of the complaint and session, it is irregular. Matter of Shot- subsequent proceedings, see Appendix, well, 10 Johns. R. 304. No. XXVII. 8 The People v. Eeed, 9 Wend. R. 157 ; 2 Benjamin v. Benjamin, 5 N. Y. R. 2 R. S. 509. And per Terry, C. J., in 383. The Revised Statutes of New York McCauley v. Weller, 12 California, R. do not appear to have repealed the act 500, this is a summary proceedings to re- to prevent forcible entries and detainers, passed cover the possession of premises forcibly in 1788 ; by which any justice of the seized, or unlawfully detained. The in- peace, upon complaint made to him of a quiry is confined to the actual peaceable forcible entry, is required to take with possession of the plaintiff, and the unlaw- him sufficient power of the county, and go ful or forcible ouster or detention by the to the place where such force is made ; defendant ; the object of the law being to and if he finds the place so forcibly held, prevent the distm-bance of the public after such entry made, to record such peace by the forcible assertion of a pri- force, and there set a fine upon each of vate right. Questions of title cannot the offenders, and imprison him in the arise : a forcible entry upon the actual county jail until the fine is paid. But possession of the plaintiff being shown, he where a justice acts thus in his own view, is entitled to restitution, though the fee- without any inquisition by a jury, we can simple title and present right of possession only punish the party guilty of the force, are shown to be in the defendant, but cannot restore the possession ; and if " Carter v. Newbold, 7 How. Pr. R. 166. he orders or permits a restitution of pos- CHAP. XVI.] OP FORCIBLE ENTRY AND DETAINER. 589 or those whose estate he has in such lands, have been in quiet pos- session for three years previous, and that his interest is not termi- nated ; and upon paying the fees of the inquisition, the traverse will stay all farther proceedings until it can be tried. The land- lord of the parity complained against may also become the traverser upon the same terms. A jury of twelve men is then summoned to try the traverse in the same manner, as provided by law, in civil actions before a justice of the peace. On the trial of the traverse, the party making the complaint will only be required to show, in addition to the forcible entry or detainer complained of, that he was in actual and peaceable possession, at the time of the forcible entry, or was in the constructive possession of the premises at the time of the forcible holding out. And the only defences allowed to the traverser are, a denial of the forcible entry or detainer ; or that he, or his ancestor, or those whose interest in such premises he claims, have been in quiet possession thereof for the space of three whole years together, next before the trial, and that his interest therein is not then ended or determined.^ § 792. In general the title of the relator is not to be investigated in a proceeding of this nature, but he is still bound to set forth his title so far as to show himself within the provisions of the statute ; and to this extent the title of the relator may be controverted by the defendant. But the defendant cannot set up his own title as a substantive matter of defence ; and if he considers his' clainj^to be paramount to that of the relator, he must resort to the remedy of ejectment to maintain his rights.^ In a case before referred to, and which arose under the New York statute, it was objected by the defendant, that as the indictment alleged a possession in fee-simple in the relator, the complainant was bound to show such an estate on the trial. But the court held that the nature of the estate was quite iounaterial ; that possession was sufficient, and that any alle- gation of the estate, in addition to possession, might be rejected as surplusage, or was sufficiently proved by evidence of possession.^ 1 2 E. S. 509, §4-11; The People w. « The People w. Van Nostrand, 9 Wend. Leonard, 11 Johns. 505 ; Gray v. Nesbet, 50. The court here say : It is objected, 2 A. K. Marshall, 35 ; Singleton v. Fin- by the defendant, that, as the indictment ley, 1 Port. E. 144. alleges a possession in fee-simple in the 2 People V. Eickett, supra; People v. relator, the complainant was bound to Godfrey, 1 Hall, E. 240 ; People v. Nel- show such an estate on the trial. Under son, 13 Johns. E. 40; Eespublica v. Shry- the Eevised Statutes, the nature of the estate ber, 1 DaU. 68; Chiles v. Stephens, 3 has become immaterial; possession is suffi- Marsh. (Ky.) E. 344; Button v. Tracy, cient; and I apprehend the allegation of 4 Conn. E. 80-94 ; 2 Stew. 474. the estate, in addition to the possession, 60 590 LAW OF LANDLORD AND TENANT. [CHAP. XVI. § 793. If the defendant is found guilty upon the traverse, the judge awards restitution of the premises which have been forcibly- entered or forcibly held out, with the costs and expenses of the pro- ceeding ; and the sheriff or constable is thereupon directed to cause the complainant to be restored to, and put in full possession of the premises. 1 The proceedings for a restitution of the premises may be removed by certiorari, when allowed by a justice of the supreme court, after an inquisition found,^ and upon giving a bond with sure- ties to the complainant, to abide by the final order of the court, and to pay any costs that may be awarded.^ And where the pro- ceedings have been so removed, and the issue ordered to be tried at the circuit, judgment as in case of nonsuit will be granted, as in other actions, if the relator does not proceed to trial.* These pro- ceedings may be quashed on motion founded on affidavits for irregu- larity, and a re-restitution awarded ; ^ and it is not too late to make the motion after the inquisition has been traversed by the defend- ant.^ They may also be quashed for the same reason, when brought before the court on certiorari.'' The imsuccessful party, upon the certiorari, may appeal to the court of appeals ; and the proceedings, as well as the costs, are regulated by the Code of Procedure, and are substantially the same, as on appeals from judgments in civil ac- tions.^ In addition to the civil remedies above stated, an action of trespass may be maintained by the party ejected, or kept out ; and if successful, the statute provides that he shall recover treble the damages assessed by the jury, or by a justice of the peace, in cases provided by law. And in such an action it is not necessary to may be rejected as surplusage. But if it H. 240; The People w. Nelson, 13 J. E. was necessary to establish the fact, as al- 340. leged in the indictment, the proof of pes- i 2 E. S. 509, § 12, 13. The Statutes session was evidence of it. 11 Johns. E. of Illinois and Indiana require that all the 510. And the defendant is not at liberty to jury should sign the verdict. Bloom v. rebut the inference drawn from such evidence, Gooder, Breese, 35 ; Test v. Devens, 2 by showing the kind of estate which the com- Blackf. 80. plainant has in the premises. The only de- ^ Haines v. Backus, 4 Wend. E. 213. fence allowed to the defendant on the tra^ ^ 2 R. S. 511, § 20. verse is, 1st. The denial of the forcible * The People w. Hickox, 3 Hill (N.Y.), entry, or forcible holding out ; or, 2d, E. 446. Showing that he, or his ancestors, or those ^ Matter of Shotwell, 10 Johns. E. whose estate he has, have been in the 304 ; 13 ib. 158. quiet possession of the premises three ^ The People v. Wilson, 13 How. P. R. whole years together, next before the inqui- E. 446. sition found, and that his interest is not end- ' The People v. Smith, 24 Barb. R. 16. ed or determined. And the court refused ^ Code of Procedure, § 11 ; Hyatt v. to permit the defendant to traverse iAe com- v. Seeley, 1 Ker. R. 52; i6. 94 • ib. 276- plainant's title. See People v. Godfrey, 1 3 Duer, R. 616. ' ' ' CHAP. XVI.] OP FORCIBLE ENlE¥ AND DETAINEE. 591 show that the defendant has been conTicted under the statute of forcible entry and detainer.^ § 793a. Ai» indictment may also be supported at common law for a forcible entry or detainer; but to justify an indictment, the entry must appear to have been accompanied by a public breach of tlie peace.^ To an indictment, the defendant has been allowed to plead three years' possession ; or he may traverse the force : ® and although he cannot justify the force, by showing title in himself,, he may controvert the facts by which the prosecutor attempts to show his title, for the purpose of showing that the prosecutor has not such an estate as would entitle him to maintain a com- plaint under the statute.* Upon a conviction of the prisoner, for either a forcible entry or detainer, the court will not only punish the offender by fine or imprisonment, under the statute, but will also award restitution of the premises in the same manner as a judge in a civil court, under a statutory proceeding is author- ized to do, upon a verdict rendered before him.^ 1 Willard v. "Watson, 17 Wend. E. 257. tainty as will enable the court to award In such an action, the defendant would be restitution ; and any variance not essen- entitled to a verdict, if he shows title in tial in the name of a person, or in the de- himself, however punishable he may be scription of the corporation injured, will criminally for the force used. lb. not vitiate the proceedings. People v. 2 Eex V. Nichols, 1 Ld. Eaym. 512; Eunkle, 9 Johns. E. 147. 8 T. E. 360; Eex v. Lloyd, Cald. 115; * The People v. Eiokert, 8 Cow. R. Commonwealth v. Shattuck, 4 Gush. E. 226; The People v. Nelson, supra; The 141. People V. Van Noetrand, supra. In 8 1 Ld. Eaym. R. 440. The indictment The People v. Nelson, the defendant of- must set forth a seizin or possession with- fered, but was not allowed, to prove that in the purview of the act, and whether the he purchased the premises at a sheriff's estate of the testator be a freehold, or a sale, on an execution against the proseou- term of years ; and, on the traverse, the tor, and that his entry was on that title, allegations as to his estate must be proved ' 2 E. S. 511, § 23 ; Hawk. b. 1, c. 64, by the prosecutor. The People v. Nel- § 45 ; Cro. Jac. 151 ; Alleyn, 50 ; The son, 13 Johns. E. 340. It will be suffl- People v. Anthony, 4 Johns. E. 198 ; The dent to state the injury with such cer- People v. Eickert, supra. APPENDIX. day of , — , of the one -, of the other NO. I. Agreement for a Lease. Memorandum of an agreement made the — 18 — , between A. B. [intended lessor'], of • part ; and C. D. [intended lessee], of — part. The said A. B. agrees to grant, and the said C. D. to take, a lease, by indenture, of all that messuage, &c.,^ with the appur- Parcels. tenances, for the term of years, to commence and be com- Xenn. puted from tSe day of — — last, at the yearly rent of , to be paid half-yearly, on the day of , and the Rent. day of , without any deduction or abatement on any account whatsover ; the first half-yearly -payment thereof to become due and be made on the day of next. And it Lease to is hereby declared and agreed, that in such lease, when granted, Covenant' shall be contained the following covenants, that is to say : [Here set out (he covenants intended to he comprised in the lease.] ^ "Witness, ' A. B. C. D. 1 The words " messuage," or "tenement," or "premises," are used throughout these forms; but it is unnecessary to say that the parcels, varying as they must do, should be referred to by appropriate terms. When once described, they may, in' general, be referred to by the single word premises. 2 In framing agreements for leases, the best plan is to set out in extenso, the several provisions which the lease itself is to contain ; but as this is often objected to, on the ground of expense, the provisions are some- times referred to in concise terms (as the lessee to covenant to pay rent and taxes, to repair, to insure, &c.), and left to expansion at a future day, according to the supposed intention of the parties ; a course of proceed- ing generally leading to dispute, and not uufrequently to htigation. It is scarcely, therefore, necessary to say, that an agreement, stipulating for the insertion of all usual covenants, or all proper covenants, or the like, should be carefully avoided. 50* 594 APPENDIX. Term. Rent. Reserva- tions. Taxes and rates. Penal rents. NO. n. Terms for Letting a Farm. Terms of an agreement between A. B. and C. D. for letting a farm in the town of , in the county of Somerset, in the State of New Jersey, known as the Bellevue Farm. 1. Term to be five years, to be computed from the day of , and so to continue until the landlord, or his agent, or the tenant, shall give six calendar months' notice, in writing, to the other to determine the tenancy on the day of next following the day of the date of such notice. 2. Rent to be $ per annum, to commence on the day of next, and to be paid quarterly, on the day of , the day of , the ■ day of , and the day of , and to be paid by equal portionis ; the first payment thereof to be made on the day of next. 3. The landlord reserves to himself all trees, woods, under- woods, and saplings, with Kberty, at all seasonable times, of ingress, egress, and regress, for himself or servants, agents, and workmen, with or without horses and carriages, on any and every part of the premises, for the purpose of cutting down and carrying away the same, and also to view the state of repair of the said premises, and perform all reparations necessary, and on all other just and reasonable occasions. He also reserves to himself and his friends, either in his company or not, the right of sporting over the said premises. 4. The tenant to pay and discharge all rates, taxes, and assess- ments of every description, as weU what are chargeable on the landlord as on the tenant, now charged, or hereafter during the time of his occupation to be charged on the premises, except the landlord's property tax, payable in respect of the premises. 5. The tenant not to plough or convert to tillage any part of the premises now in meadow or pasture, without the consent in writing, of the landlord or his agent; nor sow or plant flax, rape, hemp, or tobacco, upon any part of the said premises, under an additional sum, at the rate of ■ — - per acre per annum, to be payable quarterly, on the days aforesaid, and to be considered as rent ; and payment thereof to be enforceable accordingly. 6. The tenant not at any time between the first day of Novem- APPENDIX. 595 ber and the first day of April to depasture or feed more than two Depasturing horses, mares, or geldings, in any one close, at any one time, ' after giving or receiving notice to quit the same. 7. The landlord to keep in repair the roofs, walls, beams, and Eepaire of , , -. roofs, &c. Stanchions of the dweUmg-house and outhouses belonging to the said premises. 8. The tenant not to sell or part with any dung or compost to Dung, or be made on the premises, nor any hay, straw, halm, or stubble, '^°'"P°^ • or the fodder that shall arise therefrom ; but shall spend and consume the same on the premises. 9. The tenant not to let or in any manner otherwise dispose Assigning of, or permit to be occupied by any other person, any part of the letting, premises, without the landlord's consent, in writing, under the additional yearly rent of ^ per acre for each acre so let, dis- Penal rent. posed of, or permitted to be occupied, and so in proportion for any greater or less quantity than an acre ; such additional rent to be payable quarterly on the days aforesaid, and considered as rent ; and payment thereof to be enforceable accordingly. 10. The tenant to keep in repair the glass of the windows of Repairs of the dwelling-house, and all internal repairs and painting; and &c. ' also find and provide all gates, posts, stiles, rails, pales, and back- ings, and keep the same in good tenantable repair; and also new-make and repair all the hedges, wall and other fences, and cleanse the ditches, watercourses, and drains, in and upon the said premises. 11. The tenant not to mow any part of the meadow lands Mowing and more than once in any one year, or after the tenth day of August in every year ; and in all respects to manage and cultivate all the premises in a husband-like manner. 12. The tenant to pay , as stated damage, for any waste Waste. or damage done, or permitted on the premises, to the amount of Stated five dollars, and so in proportion for any greater or less dam- age ; and also , as stated damages, for each and every tree or sapling that shall be cut on the premises. 13. The landlord to have and take immediate possession of Bankruptcy . . , Till 11 .or insolven- the premises, m case the tenant shall become a bankrupt, or in cy of tenant. ease he shall take the benefit of any act for the relief of insol- vent debtors, or shall permit any writ of execution to be levied on his effects. 14. This instrument to operate as an agreement for a lease, Construc- T ^ , tion of and not as a lease. agreement. 696 APPENDIX. Lieu. 15. A. B., of [the Undlord], and C. D., of [the tenant], hereby mutually agree, each of them for himself, his heirs, executors, administrators, and assigns, with the other of them, his heirs, executors, administrators, and assigns, that the said A. B. and C. D. respectively, and his respective heirs, executors, administrators, and assigns, shall and will, from time to time, during the continuance of the term or estate agreed to be granted, as above-mentioned, make the payments, and observe, perform, and fulfil all the i),rticles and stipulations above-men- tioned, to be observed and performed on his and their parts respectively. In witness whereof, the said parties to these presents have hereunto set their hands the day of , one thousand eight hundred and . Witness, A. B. C. D. Parties agree to execute a lease. NO. in. Another Form of an Agreement for a Lease. Memorandum of an agreement entered into this first day of February, 1844, between A. B., of the city of New York, Es- quire, and C. D., of the said city, merchant, whereby the said A. B. agrees that he will, by an indenture, to be executed on or before the first day of May next, demise and let to the said C. D. a certain house and lot in said city, now or late in the occu- pation of E. F., known as No. — , in street, to hold to the said C. D., his executors, administrators, and assigns, from the first day of May aforesaid, for and during the term of twenty- one years, at or under the clear yearly rent of five hundred dol- lars, payable quarterly, clear of all taxes and deductions except the ground-rent. In which lease there shall be contained cove- nants on the part of the said C. D., his executors, administrators, ^"th'^r^"^'^ and assigns, to pay the rent (except in case the premises are destroyed by fire, the rent is to cease until they are rebuUt by the said A. B.), and to pay all taxes and assessments (except the ground-rent), to repair the premises (except damages by fire), not to carry on any offensive or other business on the premises (except by written pei mission of the said A. B.), to deliver the Specifica- tion of cov- enants to APPENDIX. 597 same up at the end of the term in good repair (except dangers •by fire as aforesaid), with all other usual and reasonable cove- nants, and a proviso for the re-entry of the said C. D., his heirs, and assigns, in case of the non-payment of the rent for the space of fifteen days after either of the said rent days, or the non-per- formance of any of the covenants. And there shall also be con- tained covenants on the part of the said A. B., his heirs, and assigns, for quiet enjoyment ; to renew said lease at the expira- tion of said term, for a further period of twenty-one years, at the same rent, on the said C. D., his executors, administrators, or assigns paying the said A. B., his executors, administrators, or assigns, the sum of five hundred dollars, as a premium for such renewal ; and that, in case of an accidental fire, at any time during the term, the said A. B. will forthwith proceed to put the premises in as good repair as before such fire, the rent in the mean time to cease. And the said C. D. hereby agrees to accept such lease on the terms aforesaid. And it is mutually agreed that the cost of this agreement, and of making and recording said lease, and a counterpart thereof, shall be borne by the said parties equally. As witness our hands and seals the day and year first above written. A. B. (l. s.) C. D. (l. s.) NO. IV. A Landlord's Agreement of Lease. This is to certify that I have, this first day of March, 1844, let and rented unto Mr. C. D. my house and lot, known as No. — , in street, in the city of New York, with the appurtenances, and the sole and uninterrupted use and occupation thereof, for one year, to commence the first day of May next, at the yearly rent of four hundred dollars, payable quarterly, on the usual quarter days; rent to. cease in case the premises are destroyed by fire. A. B. 598 APPENDIS. Tenants Agreement. This is to certify that I have hired and taken from Mr. A. B. his house and lot, known as No. — , in street, in the city of New Tork, with the appurtenances, for the term of one year, to commence the first day of May next, at the yearly rent of four hundred dollars, payable quarterly, on the usual quarter days. And I do hereby promise to make punctual payment of the rent in manner aforesaid, except in case the premises become unten- antable from fire, or any other cause, when the rent is to cease ; and do further promise to quit and surrender the premises, at the expiration of the term, in as good state and condition as reasonable use and wear thereof will permit, damages by the elements excepted. Given under my hand and seal the first day of March, 1844. Witness, C. D. (l. s.) Security for Rent. In consideration of the letting of the premises above described, and for the sum of one dollar, I do hereby become surety for the punctual payment of the rent, and performance of the covenants, in the above written agreement mentioned, to be paid and per- formed by C. D., as therein specified and excepted ; and if any default shall be made therein, I do hereby promise and agree to . pay unto Mr. A. B. such sum or sums of money as will be suffi- cient to make up such deficiency, and fully satisfy the conditions of the said agreement, without requiring any notice of non-pay- ment, or proof of demand being made. Given under my hand and seal the first day of March, 1844. E. F. (l. s.) NO. V. Tenant's Agreement for a House, Embracing a Mortgage of his Chattels}- This is to certify that I, A. B., have hired and taken from C. D. the premises known as No. — , in street, in the city of 1 A provision in a lease, whereby upon the demised premises, as secu- the lessee mortgages all his chattels rity for the rent, has heen held to he APPENDIX. 599 New York, for the term of one year from the first day of May next, at the yearly rent of four hundred dollars, payable quar- terly. And I hereby promise to make punctual payment of the rent in manner aforesaid, and quit and surrender the premises at the expiration of said term, in as good state and condition as reasonable use and wear thereof will permit, damages by the elements excepted ; and engage not to let or underlet the whole or any part of the said premises, or occupy the same for any business deemed extra-hazardous, on account of fire, without the written consent of the landlord, under the penalty of forfeiture and damages. And I do hereby mortgage and pledge all the personal property, of what kind soever, which I shall at any time have on said premises, and whether exempt by law from distress for rent or sale under execution, or not, to the faithful perform- ance of these covenants, hereby authorizing the said C. D., or his assigns, to distrain upon and sell the same, in case of any failure on my part to perform the said covenants, or any or either of them. Given under my hand and seal the fifteenth day of March, 1844. A. B. (l. s.) Landlord's Agreement. This is to certify that I, C. D., have let and rented unto A. B. the premises known as No. — , in street, in the city of New York, for the term of one year from the first day of May next, at the yearly rent of four hundred dollars, payable quar- terly. The premises are not to be used or occupied for any business deemed extra-hazardous on account of fire, nor shall the same, or any part thereof, be let or underlet, except with the consent of the landlord, in writing, under the penalty of forfeit- ure and damages. Given under my hand and seal the fifteenth day of March, 1844. C. D. good iu New York, although an in- such property as should be thereafter ventory of them is not made and brought upon the premises, as being annexed at the time of the execu- contrary to the pohcy of the Act to tion of the lease ; but would not abolish distress for rent, probably be supported in respect to 600 APPENDIX. NO. VI. Agreement for Lodgings, or Part of a House. Memorandum of an agreement entered into the day of , 1844, by and between A. B., of , and C. D., of, &c., whereby the said A. B. agrees to let, and the said C. D. agrees to take, the rooms or apartments following : that is to say, an entire first floor, and one room in the attic story, or garret, and a back kitchen and cellar opposite, with the use of the yard for drying linen or beating carpets or clothes, being part of a house and premises in which the said A. B. now resides, situate and being in number — , in street, in the city of New York, to have and to hold the said rooms and apartments, and the use of the said yard as aforesaid, for and during the term of half a year, to commence from the day of instant, at and for the yearly rent of dollars, lawful money of the United States, payable monthly, by even and equal portions, the first payment to be made on the day of next ensuing the date thereof; and it is further agreed that, at the expiration of the said term of half a year, the said C. D. may hold, occupy, or enjoy the said rooms or apartments, and have the use of the said yard as aforesaid, from month to month, for so long a time as the said C. D. and A. B. may and shall agree at the rent above specified ; and that each party be at liberty to quit possession, on giving the other a month's notice in writing. And it is also further agreed that, when the said C. D. shall quit the premises, he shall leave them in as good condition and repair as they shall be on his taking possession thereof, reasonable wear excepted. As witness our respective hands and seals the day and year aforesaid. "Witness present, •^" 5' ^^' ^'^ ^ ' CD. (L. s.) NO. VII. An Agreement of Lease. This agreement, made the first day of February, in the year one thousand eight hundred and sixty-six, between A, B., of the APPENDIX. 601 city of Brooklyn, of the first part, and C. D., of said city, of the second part, witnesseth, that the said party of the first part, hath agreed to let, and hereby doth let, to the said party of the second part, and the said party of the second part hath agreed to take, and hereby doth take, from the said party of the first part, the house and lot known as No. — , in street, in the said city, for the term of three years, to commence on the first day of Term. May, 1866, and to end on the thirtieth day of April, 1869 ; and the said party of the second part hereby covenants and agrees to Covenant pay unto the said party of the first part, the annual rent or sum ^ ^"''^ ' of dollars, payable quarterly in advance, on the usual quar- ter days, and also to pay the regular annual rent or charge, which is or may be assessed or- imposed according to law, upon the said premises for the Croton water, on or before the first day Water-rate. of August in each year during the term, and if not so paid, the same shall be added to and become part of the rent then due ; and to quit and surrender the premises, at the expiration of the To surren- said term, in as good state and condition as they were in at ises. the commencement of the term, reasonable use and wear thereof and damages by the elements excepted ; and that he will not Not to as- assign this lease, nor let, or underlet the whole or any part of ^'^' the said premises, nor make any alteration therein without the nor make written consent of the said party of the first part, under the pen- ^ '^ '°°^' alty of forfeiture and damages ; and that he will not occupy or use the said premises, nor permit the same to be occupied or used for any business deemed extra-hazardous on account of Extra-haz- fire or otherwise, without the like consent, under the like pen- cupatfon?" alty ; and that he will permit the said party of the first part, or his agent, to show the premises to persons wishing to hire Permit or purchase, and on and after the first day of February next v^ewmem- preceding the expiration of the terra, will permit the usual '^®^' notice of " to let," or " for sale," to be placed upon the walls or doors of said premises,- and remain thereon without hinderance or molestation. And also, that if the said premises, or any part thereof, shall become vacant during the said term, the said party of the first part, or his representative, may re-enter the same, Ee-entry either by force or otherwise, without being liable to any prose- ""^ ™<=ancy cution therefor ; and re-let the said premises as the agent of the and to i said party of the second part, and receive the rent thereof, applying the same first to the payment of such expense as he may be put to in re-entering, and then to the payment of the 51 let. 602 APPENDIX. rent due by these presents ; and the balance (if any) to be paid over to the said party of the second part, ■who shall remain liable for any deficiency. And the said party of the second part hereby further covenants that if any default be made in the pay- Proviso for ment of the said rent, or any part thereof, at the times above ° '^' specified, or if default be made in the performance of any of the covenants or agreements herein contained, the said hiring, and the relation of landlord and tenant, at the option of the said party of the first part, shall wholly cease and determine ; and the said party of the first part, shall and may re-enter the said premi- ses, and remove all persons therefrom ; and the said party of the second part, hereby expressly waiving the service of any notice in writing of intention to re-enter. And it is further agreed between the parties to these presents, that in case the premises for repair in above mentioned shall be partially damaged by fire, the same c£is6 of fire " ' shall be repaired as speedily as possible at the expense of the said landlord ; that in case the damage shall be so extensive as to render the premises untenantable, the rent shall cease until such time as the same shall be put in complete repair ; but in case of the total destruction of the premises by fire or otherwise, the rent shall be paid up to the time of such destruction, and then and from thenceforth this agreement shall, at -the option of the said tenant, cease and come to an end ; provided, however, that such damage or destruction shall not have been caused by the carelessness, negligence, or improper conduct of the party of the second part, his agents or servants. And the said party of the first part hereby covenants, that the said party of the second for quiet part, on paying the said yearly rents, and performing the cove- enjoyment, jj^jjjg aforesaid, shall, and may, peaceably and quietly have, hold, and enjoy, the said demised premises for the term aforesaid, re re°ente- '^^^ ^^ ^^ further understood and agreed, that the covenants and tiveofeach agreements contained in the within lease shall be binding upon P* ^' the parties hereto, their legal representatives and assigns. In witness whereof, the parties to these presents have here- unto set their hands and seals, the day and year first above written. Sealed and delivered in the presence of APPENDIX. 603 NO. VIII. A Lease of a House for Five Years. This indenture, made on the first day of April, one thousand eight hundred and forty-four, between A. B., of the city of New Parties, York, merchant, of the first part, and C. D., of said city, book- seller, of the second part, witnesseth, that the said party of the first part hath letten, and by these presents doth grant, demise, grant and and to farm let, unto the said party of the second part, his execu- tors, administrators, and assigns, all that brick house, messuage, or tenement, with all and singular its appurtenances, situate, standing, and being in the ninth ward of the said city of New York, and known as No. — , in street, in said city, to have and to hold the said premises, with the appurtenances, unto the said C. D., his executors, administrators, and assigns, for the term of five years from the first day of May, one thousand eight For the hundred and forty-four, at the yearly rent or sum of six hundred years, dollars, to be paid in equal quarter yearly payments, as long as the said premises are in good tenantable condition. And it is proviso for r6~©iitrv» agreed that, if any rent shall be due and unpaid, or if default shall be made in any of the covenants herein contained, then it shall be lawful for the said party of the first part to re-enter the said premises, or to distrain for any rent that may remain due thereon. And the said party of the second part doth hereby LesssSiove- ., „ nantsto covenant to pay to «the said party of the first part the said pay rent ; yearly rent, as herein specified, save and except at all times during the said term such proportional part of the said yearly rent as shall grow due during such time as the house shall, with- out the hinderance of the said party of the second part, be and remain untenantable, by reason of accidental fire. And that the to keep the said C. D., his executors, administrators, and assigns, shall and ^pSn^^ '" will during the said term, at his own proper costs and charges, well and sufficiently heep in repair the said demised premises, with their appurtenances, when and as often as the same shall require, damages by fire only excepted. And that, at the expira- to surrender tion of the said term, the said party of the second part will quit the term; and surrender the premises hereby demised, in "as good state and condition as reasonable use and wear thereof will permit, dam- ages by fire only excepted. And also that he, the said party of and to pay taxes, &c. 604 APPENDIX. the second part, his executors, administrators, and assigns, shall and will, during the said term, pay and discharge aU taxes, assessments, and other charges, which shall be taxed, assessed, Less^f core- or charged upon the said premises, or any part thereof. And qufet enjoy- the Said party of the first part doth covenant that the said party ment; ^^ ^jjg gecond part, on paying the said yearly rent, and perform- ing the covenants aforesaid, shall and may peaceably and quietly have, hold, and enjoy the said demised premises for the term aforesaid, without any interruption or molestation of the said party of the first part, his heirs, or any other person whatever, claiming, or to claim by, from, or under him, or them, or any of and to re- them. And also, that in case the said premises shall, at any case of fire. ^^^ during the said term, be destroyed or injured by an acci- dental fire, the said party of the first part, his executors, admin- istrators, or assigns, shall and will forthwith proceed to rebuild or repair the said premises in as good condition as the same were before such fire ; and that, until such repairs are made and completed, the said rent shall cease. In witness whereof, the parties to these presents have hereto set their respective hands and seals, the day and year first above mentioned. Sealed and delivered ) A. B. (l. s.) in the presence of j C. D. (l. s.) NO. IX. General GENERAL EOEMS OF COVENANTS, covenants. 1. By Lessee with Lessor. And the said \lessee'] doth hereby for himself, his heirs,^ executors, administrators, and assigns,^ covenant with the said {lessor^, his heirs, and assigns,^ that, &c. 1 The covenantor covenants for question arising on the second rule his heirs, for the reasons explained in Spencer's case. ante, § 460, et seq. of this volume. ^ If the lessor be seized in fee ; 2 The covenant should extend to but, if possessed of a term only, the assigns, to guard against any then, his executors, administrcUors, and APPENDIX. 605 2. By two Lessees, jointly and severally with Lessor. And the said [Ze«sees] do hereby jointly, for themselves, their General heirs, executors, administrators, and assigns, and each of them severally doth hereby, for himself, his heirs, executors, adminis- trators, and assigns, and as to and concerning only his own acts, deeds, and defaults, covenant with the said {lessor'\, his heirs, and assigns,' that, &c. 3. By Lessee with Husband and Wife, seized in Right of the Wife. And the said [lessee'] doth hereby, for himself, his heirs, exe- cutors, administrators, and assigns, covenant with the said [hus- band^, and , his wife, and the heirs and assigns of the said [liJiye], that, &c. 4. By each of Two Lessors, to the Extent of a Moiety of Dam- And each of them the said \lessors\ severally and apart from the other of them, doth hereby, for himself, his heirs, executors, and administrators, and so as to be answerable or accountable only to the extent of one equal half-part of the damages to be recovered under or by virtue of the covenant hereinafter con- tained, covenant with the said \lessee\ his executors, adminis- trators, and assigns,^ that, &c. 5. By each of two Lessees, on an Assignment of their Respective Leases, hy one Deed, as to the Lands comprised in his Lease. And the said A. B. doth hereby, for himself, his heirs, executors, administrators, and assigns, and so far only as relates to or con- cerns the said messuage or tenement and premises, comprised in and demised by the said indenture of lease, bearing date on or about the said day of ; and the said C. D. doth hereby, for himself, his heirs, executors, administrators, and 1 If the lessor be seized in fee ; tors, and assigns, if the lease be but, if possessed of a term only, granted to the lessee and his heirs then, his executors, administrators, and (as special occupants) for a life or assigns. . lives. ^ His heirs, executors, administra- 51* 606 APPENDIX. assigns, and so far only as relates to and concerns the said messuage or tenement and premises, comprised in and demised by the said indenture, bearing date on or about the said day of , covenant, &c. NO. X. SPECIAL FORMS OF COVENAl^TS THAT MAY BE IN- SERTED IN A LEASE. 1. To Pay Rent. Special And the said lessee doth hereby, for himself, his heirs, exe- covenan . py^^Qj,g^ administrators, and assigns, covenant with the said lessor, that he, the said lessee, his executors, administrators, and assigns, will, during the said term, pay unto the said lessor the rent hereby reserved, in manner hereinbefore mentioned, without any deduction whatsoever. 2. To Pay Taxes. And also will pay all taxes, rates, duties, and assessments whatsoever, now charged, or hereafter to be charged, upon the said demised premises, or upon the said lessor, on account thereof (excepting the land-tax, and all such other taxes, rates, duties, and assessments, or any portion thereof, which the lessee is or may be by law exempted from). 3. To Repair. And also will, during the said tei-m, well and sufficiently repair, maintain, pave, empty, cleanse, amend, and keep the said demised premises, with the appurtenances, in good and substantial repair, together with aU chimney-pieces, windows, doors, fasten- ings, water-closets, cisterns, partitions, fixed presses, shelves, pipes, pumps, pales, rails, locks and keys, and all other fixtures and things which, at any time during the said term, shall be erected and made, when, where and so often as need shall be. APPENDIX. 607 4. To Paint Outside every Tear. And also, that the said lessee, his executors, administrators, and Special . covenants. assigns, will, in every year in the said term, paint all the outside wood-work and iron-work belonging to the said premises, with two coats of proper oil colors, in a workmanlike manner. 5. To Paint and Paper Inside every Year. And also that the said {lessee'], his executors, administrators, and assigns, will, in every year, paint the inside wood, iron, and other works, now or usually painted, with two coats of proper oil colors, in a workmanlike manner ; and also re-paper, with paper of as good a quality as at present, such parts of the premises as are now papered ; and also wash, stop, whiten, or color such parts of the said premises as are now plastered. 6. To Insure from Fire, and to Rebuild in Case of Fire. And also that the said lessee, his executors, administrators, and assigns, will forthwith insure the said premises hereby de- mised, to the full value thereof, in some respectable insurance office, in the joint names of the said lessor, his executors, admin- istrators, and assigns, and the said lessee, his executors, adminis- trators, or assigns, and keep the same so insured during the said term ; and will, upon the request of the said lessor, or his agent, show the receipt for the last premium paid for such insurance for every current year ; and as often as the said premises hereby demised shall be burnt down, or damaged by fire, all and every the sums or sum of money, which shall be recovered or received by the said [Ze«see], his executors, administrators, or assigns, for or in respect of such insurance, shall be laid out and expended by him in building or repairing the said demised premises, or such parts thereof as shall be burned down or damaged by fire as aforesaid. 7. That the [lessor] may Enter to Repair. And it is hereby agreed, that it shall be lawful for the said lessor, and his agents, at all seasonable times during the said term, to enter the said demised premises to take a schedule of 608 APPENDIX. Special the fixtures and things made and erected thereupon, and to examine the condition of the said premises ; and further, that all wants of reparation which, upon such views, shall be found, and for the amendment of which notice in writing shall be left at the premises, the said lessee, his executors, administrators, and assigns, will, within three calendar months, next after every such no'tice, well and sufficiently repair, and make good accord- ingly. 8. Not to Use the Premises as a Shop. And also that the said lessee, his executors, administrators, and assigns, will not convert, use, or occupy the said premises, or any part thereof, into or as a shop, warehouse, or other place for carrying on any trade or business whatsoever, or suffer the said premises to be used for any such purpose, or otherwise than as a private dwelling-house, without the consent, in writing, of the said lessor. « 9. Not to Assign without Leave. And also that the said [lessee'] shall not, nor will, during the said term, assign, transfer, or set over, or otherwise by any act or deed procure the said premises, or any of them, to be assigned, transferred, or set over, unto any person or persons whomsoever, without the consent, in writing, of the said [lessor], his executors, administrators, or assigns, first had and obtained. 10. To Leave the Premises in Good Repair. And further, that the said [lessee] will, at the expiration or other sooner determination of the said term, peaceably surrender and yield up unto the said lessor the said premises hereby demised, with the appurtenances, together with all buildings, erections, and fixtures, now or hereafter to be built or erected thereon, in good and substantial repair and condition in all respects, reasonable wear and tear, and damage by fire only excepted. APPENDIX. 60 11. To Insure Future Buildings when Covered in. And also that he the said [lessee'], his executors, administrators, Covenants or assigns, shall and will, at his and their own expense, from time to time insure, or cause to be insured, and dui-ing the said term kept insured, every additional building which may hereafter, with such approbation as is hereinafter mentioned, be built on the said ground hereby demised, or any part thereof, and effect the same within six days after each such building shall be built or covered in ; and will increase the amount of such insurances respectively, when and as each such building shall be completed, so as to make the sum insured thereon equal to three fourth parts, at least, of the then value thereof. 12. To Lay out a given Sum in Repairs. That he, the said \lessee~\, his executors, administrators, or assigns, will, within the firet three years of the said term hereby granted, lay out and expend the sum of , at least, in and upon the substantial repairs of the said demised premises, and every part thereof; the application of the said sum, and the said reparation of the said premises as aforesaid, to be from time to time surveyed, inspected, and approved by such proper person or persons as the said [lessor], his heirs, or assigns, shall appoint and direct to survey and inspect the same. And also that he, the said [lessee], his executors, administrators, and assigns, will, when required, produce and deliver to the said [lessor], his heirs, or assigns, the bills and receipts of the different trades- men employed in doing such- repairs as aforesaid, for the respect- ive sums to be paid them for that purpose, or duplicates thereof. 13. To Pay Share of Fkcpense of Repairing Ways. And also will, from time to time, pay and allow a reasonable proportion towards the expenses of making, supporting, and re- pairing all ways, roads, pavements, party-walls, or party-fence walls, or fences, gutters, drains, sewers, pipes, and watercourses, belonging, or which at any time shall belong to the premises hereby demised, or which shall be used for the convenience of the same, or any part thereof, in common with said premises near or adjoining thereto, or which shall be reasonably required by 610 APPENDIX. Covenants the public authorities, to be made and formed for the purpose by lessee. ^^ ^^^^^ ^^ ^^^^^ ^^^^ towards the expenses of cleansing such gutters, drains, sewers, pipes, and watercourses, such proportion to be ascertained by the architect or surveyor for the time being of the said public authorities ; and that, in default of payment of such proportion, the same shall be recoverable as or in the nature of rent in arrear. 14. Another Form. And also that he, the said [lessee'], his executors, administra- tors, and assigns, shall and will, front time to time during the said term, pay a reasonable share of the charges of making, repairing, and cleansing all party-walls, fences, sewers, drains, gutters, and other easements belonging, or which shall belong to the said premises hereby demised, in common with the own- ers or occupiers of any adjoining premises. 15. To Procure Supply/ of Water for Demised Premises. And also that he, the said [ZesseeJ, his executors, administrators, and assigns, shall and v^ill, during the said term hereby granted, procure the supply of water for the said messuage and premises hereby demised, from the Croton Water Company ; provided that such company so to be named shall yield water for that supply of as good quality, in a sufficient quantity, and on as reasonable terms, as the same company shall supply other premi- ses in the same vicinity or neighborhood, or as the premises hereby demised could be supplied by any other company or persons. 16. By Lessee of a Public House, to Purchase his Porter of Lessor. That he, the said [^lessee'], his executors, administrators, and assigns, will, at all times during the said term, as often as his or their occasion shall require, purchase of and from the said [lessor'], his executors, or administrators, either alone, or jointly with his or their partner or partners for the time being, or such other person or persons carrying on the business of brewers as he, the said [lessor], his executors, or administrators, shall ap- APPENDIX. 61 point, all the beer, called porter, that shall be sold and disposed Covenants of in the said house, called the , or drawn in the same ^ for sale ; and shall not deal or contract with any other person or persons for any porter, to be sold or drawn in the said house ; provided that the said [lessor^, his executors, or administrators, shall at such times deal in and vend such porter as aforesaid, and be wUling to supply the same to the said [lessee], his executors, administrators, and assigns, at the fair current market price thereof. And also that if, at any time hereafter during the said term, the said [lessee], his executors, administrators, or assigns, shall grant any underlease of, or assign over his interest in, the said premises, there shall be contained in such under-lease, or in the deed whereby his interest shall be assigned, a covenant on the part of the underlessee or assignee, his or her executors, admin- istrators, or assigns, to be entered into with the said [lessor], his executors, and administrators, who shall be made parties for the purpose, to the same or the like effect, and subject to the same or the like proviso, mutatis mutandis, as is lastly hereinbefore contained. 17. T7iat Lessor and Ms Tenants shall have Watercourse through Demised Premises. And also that the said [lessor], and his assigns, and his and their tenants, shall have free hberty of watercourse in and through the premises hereby demised, from any adjoining premi- ses, or other estates belonging to the said lessor, by means of the sewers, drains, or channels there, to carry off the water from the other houses, near or adjoining thereto, the person or persons forming or using any such watercourses making good all damage occasioned thereby, and contributing to the expense of keeping in repair and cleansing the same. 18. Not to Obstruct Lights, hy Building. And shall not, by building or otherwise, stop or obstruct any light or lights belonging to any messuage or tenement, the estate or interest whereof, in possession or in reversion, is in the said [lessor]. 612 APPENDIX. 19. In a Building Lease, not to Permit Thoroughfare over Premises. Covenants And also that the said [lessee], his executors, administrators, by lessee. ^^ assigns, will not, at any time or times during the said term, permit any way or thoroughfare over or through any part of the said premises hereby demised. 20. Not to Assign Premises, or Underlet them for a Longer Term than a Year, without giving Lessor a Right of Pre- emption. And also that the said [lessee'], his executors, or administra- tors, shall not nor will, at any time during the said term, assign and transfer the said premises, or any part thereof, or underlet the same, or any part thereof, for a longer term than one year, to any person or persons whomsoever, except a person or per- sons who shall have entered into partnership with him, the said [lessee], his executors, or administrators, in the business which shall then be carried on by him or them, at the said factory and premises, or to whom the said [lessee], his executors, or adminis- trators, shall have assigned the whole or some part of his said business, without first offering to sell and assign the same premi- ses, with the buildings and erections thereon, to the said [lessor], or other the person or persons who shall then be entitled to the reversion of the said premises, immediately expectant on the determination of the said term, at a fair valuation, to be made by two indifferent persons, one to be chosen by the said [lessee], his executors, or administrators, and the other by the said [lessor], or other the person or persons entitled as aforesaid ; and, in case of the disagreement of such two persons, then by an umpire, to be chosen for that purpose by such two persons, before they pro- ceed to make such valuation ; and, in case the said [lessor], or other the person or persons then entitled as aforesaid, shall refuse or decline to take to and purchase the said premises at such valuation, or shall omit or neglect to give notice of his or their determination so to do, for the space of three calendar months next after such offer shall be made in writing to him or them as aforesaid, it shall be lawful for the said [lessee], his executors, or administrators, to assign, or transfer, or underlet the said premises, or any part of the same, to "any person or per- sons whomsoever, as he or they shall think fit. APPENDIX. 613 21. To leave Assignment or Underlease, at Office of Lessor's Solicitor, for Registry. That in case the said premises, or any part thereof, shall be Covenants assigned or underlet for all or any part of the term hereby granted, every or any assignment or underlease to be so made shall, within three calendar months after the execution of the same, be left, for not less than seven days, at the office of the solicitor for the time being of the said [lessor'\, his heirs, ap- pointees, or assigns, to the intent that the same may be there registered, and such registry to be at the expense of the said {lessee'], his executors, administrators, or assigns. 22. To Keep the Orchards fully Planted, and Preserve the Same from Injury hy Cattle} And also that the said [lessee"], his executors, administrators, and assigns, will, at all times during the said term, keep the orchards full treed, and planted with good thriving young apple trees, of such sorts and sizes as the said [lessor], his heirs, or assigns, shall direct; the said [lessee], his executors, administra- tors, or assigns, taking the old decayed trees in lieu thereof ; and will fence out and preserve the same from being injuied by cattle or otherwise, and not suffer any cattle, that may injure the trees in such orchards, to depasture therein. 23. To Keep Lawn and Garden in Order. And also shall and will, at his and their own costs, keep up and preserve in good condition the lawn and garden belonging to the said messuage, in the same order and form as the same respectively are now in, and the fences and walls around and about the same ; and do, or cause to be done, in proper and rea- sonable times of the year, and in a proper manner, all necessary work in and to the same, and, in particular, for the preserving, cherishing, encouraging, and keeping in health and bearing the wall and other fruit trees, and the herbs, shrubs, plants, flowers, and roots now growing, or henceforth during the said term to 1 In addition to the forms con- covenants will be found in the pre- tained in this division of the Appen- cedents of farming leases inserted dix, a great variety of agricultural in a subsequent part. 52 614 APPENDIX. Covenants grow therein, and for the due, orderly, and seasonable manuring, ' cultivating, and cropping the same, during the said term. 24. Not to convert Old Meadow into Tillage. And shall not nor will break up or convert into tillage any of the old meadow or pasture ground belonging to the said demised premises ; and shall not mow the same, without manuring every acre thereof with eight hogsheads of good well-burnt stone lime, or one hundred -and twenty wagon-loads of good rotten dung, and so in proportion for a less or greater quantity an acre, except such part of the meadow lands as shall have been well flooded with water in the winter preceding every mowth. 25. Not to make Hedges, except under Certain Conditions. And shall not nor will, at any time during the said term, per- mit or suffer the growth of the hedges to be cut, without new- making the same; nor make any of the hedges on the said premises, unless the adjoining ground, if tillage-ground, shall be in tillage for the first crop, and then shall and will new-make, cast, dyke, and thatch such hedges in a husband-like manner. And shall not nor will permit any wood to be cut under seven years' growth, nor any in the last two years of the said term. And shall and will give notice, in writing, unto the said [lessors], or one of them, their, or one of their heirs, or assigns, at least one clear month previously to the time of making any hedge, that the trees, plants, and saplings, which are intended to remain therein, may be marked. 26. That Lessor may, in last Year of Term, enter on Part of Demised Premises, to prepare next Wheat Crop. And also that the said [lessor], his heirs, or assigns, and his or their succeeding tenant, shall be at liberty, at any time after the day of , in the last year of the said term, to enter upon such part of the said demised lands, not exceeding twenty acres, as shall be in course for wheat in the succeeding year, the same to prepare for his or their wheat crop, and do the needful husbandry thereon, allowing unto the said [lessee], his executors, administrators, or assigns, a reasonable compensation therefor. APPENDIX. 615 27. The Lessor Covenants for Quiet Enjoyment. And the lessor doth hereby, for himself, his heirs, executors, Covenants administrators, and assigns, covenant with the said lessee, his executors, administrators, and assigns, that he and they paying the rent hereby reserved, and performing the covenants herein- before on his and their part contained, shall and may peaceably possess and enjoy the said demised premises for the term hereby granted, without any interruption or disturbance from the said lessor, his executors, administrators, or assigns, or any other per- son or persons lawfully claiming by, from, or under him, them, or any of them. 28. To Find Lessee Rough Timber for Repairs. And also that he, the said [lessor'}, his heirs, and assigns, will, from time to time, and at all times during the said term, find, provide, and allow unto the said \_lessee'\, his executors, adminis- trators, and assigns, on the said demised premises, or within four miles thereof, a sufficient quantity of rough timber, for keeping the said premises, with the gates, posts, pales, rails, and fences thereon, in proper condition and repair, upon request in writing, specifying the quantity wanted for that purpose, being made by the said [lessee'], his executors, administrators, or assigns. 29. To Rebuild or Repair, in Case of Fire. That in case the said premises hereby demised, or any part thereof, shall, at any time or times during the continuance of this demise, happen to be damaged or destroyed by fire, he, the said [lessor], his heirs, or assigns, will, with all convenient speed, repair or rebuild the same premises which shall or may happen to be damaged or destroyed by fire as aforesaid, and make the same again fit for the habitation of the said [lessee], his execu- tors, administrators, or assigns. 3Q. To lay out a Given Sum in Repairs, in case of Accidental Fire. That if the said buildings hereby demised, or any part thereof, shall, at any time or times from the day of the date hereof, until 616 Covenants by lessor. APPENDIX. the Commencement, and thence during the continuance of the term hereby granted, be burned down or damaged by fire (other than through the wilful neglect or default of the said [lessee^, his executors, administrators, or assigns), and in case every or any such assignment or under-lease, shall have been so left for regis- try as aforesaid, and no hazardous trade or business shall be carried on upon the said premises, without consent as aforesaid, but not otherwise, the said [lessor'] shall forthwith lay out and expend (whether any insurance from fire shall have been effected upon the said premises or not) the sum of , or so much thereof as may be sufficient for making good such loss or dam- age, or so far as the same will extend for that purpose, upon the same plan as before such fire happened, or such other plan as by the surveyor for the time being of the said [lessor], his heirs, appointees, or assigns, shall be approved. 31. To Renew the Lease. And that the said [lessor], his executors, administrators, or assigns, will, on or before the expiration of this present lease, at the request and expense of the said [lessee], his executors, administrators, or assigns, grant and execute to him and them a new lease of the premises hereby demised, with their appur- tenances, for the further terra of twenty-one years, to commence from the expiration of the term hereby granted, at the same yearly rent, payable in the like manner, and subject to the like covenants, provisos, and agreements (except a covenant for further renewal), as are contained in these presents. Covenants by assignor of lease. 32. For Title, in an Assignment of Leaseholds. And the said [assignor] doth, &o., that, notwithstanding any act, deed, or thing whatsoever made, done, or suffered to the contrary, by him, the said [assignor], the said [hereinbefore in part recited], indenture of lease is still in full force for the said residue of the said term thereby granted, and neither void nor voidable. And also that, notwithstanding any such act, deed, or thing, as aforesaid, he, the said [assignor], now hath in himself good right, by these presents, to assign the said messuage or tenement and premises, with their rights, members, and appur- tenances, unto the said [assignee], for the residue of the said APPENDIX. 617 term of years, in manner aforesaid. And also that, subject Covenants to the payment of the rent, and the observance and perform- o/iease. ance of the covenants, provisos, and conditions in the said lease contained, and by or on the part of the [lessee^, his executors, administrators, or assigns, to be observed and performed, it shall be lawful for the said [^assignee], his executors, administrators, or assigns, henceforth, during the residue of the said term, to enter into and upon, hold, and enjoy the said messuage or tene- ment and premises, with their rights, members, and appur- tenances, and to receive and take the rents and profits thereof, without any hinderance or interruption whatsoever by him, the said [assi^rreor], his executors, or administrators, or any other person or persons whomsoever, lawfully, or equitably, and rightfully claiming, or to claim any estate, right, title, or interest, at law or in equity, of, in, to, or out of the same messuage or tenement and premises, or any part thereof, by, from, through, under, or in trust for him, the said [^assignor^, his executors, or administrators. And that free and clear, and freely and clearly and absolutely discharged, or otherwise, by him, the said [_assignor^, his heirs, executors, or administrators, at his or their own costs in all things, protected and kept indemnified from and against all former and other assignments, surrenders, forfeit- ures, and cause or causes of forfeiture, arrears of rent, estates, titles, charges, and encumbrances whatsoever, at any time or times heretofore, and to be at any time, and from time to time hereafter, made, committed, occasioned, or suffered by the said [assignor^, his executors, or administrators, or any person or persons rightfully claiming, or to claim, any estate, right, title, or interest, at law or in equity, of, in, to, or out of the same mes- suage or tenement and premises, or any part thereof, by, from, tlirough, under, or in trust for him, the said [^assignor], his exec- utors, or administrators, or by his or their acts, means, consent, default, privity, or procurement. And moreover, that he, the said [^assignor'}, his executors and administrators, and all persons whosoever lawfully or equitably and rightfully claiming, or to claim, any estate, right, title, or interest, at law or in equity, of, in, to, out of, or upon the said messuage or tenement and premi- ses, or any part thereof, by, from, under, or in trust for him, the said [^assignor'], his executors, or administrators, will henceforth, during the residue of the said term, upon every reasonable request, and at the cost of the said [^assigneej, his executors, 52* 618 APPENDIX. Covenants administrators, or assigns, make, do, and execute, or cause to be of lease!°°'^ made, done, and executed, all such lawful and reasonable acts, deeds, and assurances in the law whatsoever, for the further, better, or more satisfactorily assigning or assuring the said mes- suage or tenement and premises, or any part thereof^ with the rights, members, and appurtenances, unto the said [_assignee'\, his executors, administrators, or assigns, for the then residue of the said term of ■ years, as by the said [^assiffnee'], his exec- utors, administrators, or assigns, or his and their counsel in the law, shall be reasonably required, and be tendered to be made, done, and executed. 33. By Assignee of a Lease for Future Payment of Rent and Performance of Covenants, and for the Assignor's Indem- nity. Covenants And the said [assignee'] doth hereby, for himself, &c., that he, rfleasl"^^ the said [assignee'], his executors, administrators, or assigns, will, from time to time, during the residue of the said term, pay the said yearly sum of , when and as the same shall henceforth become due, and observe and perform the covenants, provisos, and conditions, in the same indenture contained, and which, by or on the part of the said [lessee], his executors, administrators, and assigns, are henceforth to be observed and performed. And also will, at all times hereafter, at his or their own costs, defend, save harmless, and keep indemnified the said [assignor], his heirs, executors, and administrators, and his and their lands, tenements, goods, chattels, and effects, against all payments, costs, losses, damages, and expenses whatsoever, which he or they shall or may make, pay, sustain, or be liable to, on account of the said yearly rent, which shall henceforth become due and payable, or any part thereof, and on account of the breach, non- performance, or non-observance by or on the part of the said [assignee], his executors, administrators, or assigns, of all and every or any of the covenants, provisos, and conditions contained in the said indenture of lease, to be observed and performed by the said [lessee], his executors, administrators, and assigns, and also against all actions and suits at law or in equity, which shall be commenced or prosecuted against the said [assignor], his heirs, executors, or administrators, for or on account of the said rent, covenants, and provisos, and conditions, or any of them, and henceforth to be paid, observed, and performed. APPENDIX. 619 NO. XL PROVISOS AND DECLARATIONS. 1. For Lessor's Re-entry, on Lessee's Non-payment of Rent or Non-performance of Covenants} ' Provided always, and it is expressly agreed, that if the rent Provisos hereby reserved, or any part thereof, shall be unpaid for fifteen tions. days after any of the days on which the same ought to have been paid (although no formal demand shall have been made thereof), or in case of the breach or non-performance of any of the cove- nants and agreements herein contained, on the part of the said lessee, his executors, administrators, and assigns, then, and in either of such cases, it shall be lawful for the said lessor, at any time thereafter, into and upon the said demised premises, or any part thereof, in the name of the whole, to re-enter, and the same to have again, repossess, and enjoy, as of his or their former estate, any thing hereinafter contained to the contrary notwithstanding. 2. For Lessor's Re-entry on Nonpayment of Rent after De- mand or Notice. Provided always, that if the rent hereby reserved, or any part thereof, shall at any time be in arrear for the space of one year, and not paid within six calendar months after the same shall have become due, and be demanded by a notice in writing, to be delivered to the said [lessee'], his executors, administrators, or assigns, or to be affixed on some conspicuous part of the premises hereby demised, or left with the occupier, or some or one of the occupiers of the same premises, or any part thereof, it shall be lawful for the said \lessor'\, &c. 1 The advantage of a proTiso for or distress for rent would be thrown re-entry consists in its enabling the away : it affords the lessor an in- lessor to wrest his property from demnity against future loss, though the hands of a troublesome or inspl- he cannot by its agency recover vent tenant, upon whom an action past claims. 620 APPENDIX. 3. That Lessor shall not Re-enter for a Forfeiture without Notice. Provisos Provided always, that no breach of any of the covenants and declara- -^ ' ■' tions. hereinbefore contained (except the covenant for payment of rent, and the covenant for insurance against fire), shall occasion any forfeiture of these presents, or the estate hereby granted, or give any right of re-entry pursuant to the clause in that behalf hereinbefore contained, unless or until the said \lessor\ his heirs, or assigns, shall have given unto the said \lessee'\, his executors, administrators, or assigns, or unto the tenant in the actual pos- session of the premises, or, in case there shall be no tenant in the actual possession of the premises, shall have aflBxed upon some notorious part of the premises, a notice in writing, bearing date on the day of giving or affixing such notice, and specifically mentioning the breach or breaches of covenant complained of, and expressly notifying that if the same be not remedied within the space of three calendar months from the date of such notice, the said \lessor'\, his heirs, or assigns, intends to enter upon the premises as forfeited, pursuant to a clause for that purpose in the lease thereof contained, and unless such breach or breaches shall not be remedied within the space of three calendar months from the date of such notice. 4. For Lessor^s Re-entry into that Part only of Premises in Respect of which Lessee shall make Default. Provided always, and it is hereby expressly agreed, that if any one or more of the rents hereby reserved, or any part thereof respectively, shall be unpaid by the space 6f days after any of the days on which the same ought to have been paid (although no formal demand shall have been made there- of), or in case of the breach, or non-performance, or non-observ- ance of all or any one or more of the covenants or agreements herein contained, on the part of the said [lessee^, his executors, administrators, or assigns, then, and in any or either of the said cases, it shall be lawful for the said [lessor^, his heirs, or assigns, to re-enter into or upon that part, or those respective parts only of the said premises hereby demised, in respect of which there shall have been such non-payment, non-performance, non-observ- ance, or default ; it being the true intent and meaning of these APPENDIX. 621 presents, that the right of re-entry of the said [lessor'], his heirs, ProTisos or assigns, under this present provision, shall not extend or be tions. applicable to any part or parts of the said premises hereby demised, in respect whereof the rent, covenants, and agreements, shall have been duly paid, performed, and observed. 5. For Suspension or Apportionment of Rent, on Premises becoming Uninhabitable from Fire. Provided always, and notwithstanding any thing hereinbefore contained, that if the said messuage or tenement and premises hereby demised shall be materially injured by fire, so as to be rendered unfit for habitation, and for carrying on the business of a coffee-house and tavern, and the said \lessee~\, his executors, administrators, or assigns, or his or their under-tenants, shall actually quit the occupation of the same messuage, &c. ; then, during such time as the same messuage, &c., shall remain unfit for habitation, and the occupation of the same shall be quitted as aforesaid, the rent hereby reserved shall be suspended or apportioned, so and in such manner that the said [lessee], his executors, administrators, or assigns, shall be entitled to retain, or be discharged from, so much and such part of the same rent, as shall be in proportion to the time or number of days during which the said messuage, &c., shall remain unfit for habitation, and the said [lessee], his executors, administrators, and assigns, or his or their under-tenants, shall actually cease to inhabit the same. 6. Another Form. And further, that in case the said messuage or tenement and premises, or such of them as shall at any time or times during the said term be destroyed or damaged by fire, shall not be rebuilt or repaired by the said [lessor], his heirs, or assigns, within the space of six calendar months next after such fire happening, then the said rent hereby reserved shall cease and be suspended, until the said premises, so destroyed or damaged by fire, shall be rebuilt, or repaired fit for the occupation of the said [lessee], his executors, administrators, or assigns ; and at that time the said rent shall revive and recommence, and become again payable in manner aforesaid. and declara- tions. 622 APPENDIX. 7. For Cesser of Term, in Case of Fire, the Tenant having the Option of giving up Possession, or of Repairing, and continuing Tenant. Provisos Provided always, nevertheless (and it is hereby further de- clared and agreed), that if the said messuage or tenement and premises hereby demised, or intended so to be, or any part thereof, or any other building erected, or to be erected on the said piece or parcel of ground hereby demised, or intended so to be, or any part thereof, shall, at any time or times during the said term of years, be destroyed or damaged by fire, the said [Zessee], his executors, administrators, and assigns, shall have the option, at any time within fourteen days after such fire, of giving notice that the said term hereby granted shall cease or determine on the next rent-day after such fire ; and in that case, and from that time, provided an insurance shall have been made and kept on foot, pursuant to the covenant of the said \lessee'\, hereinbefore contained, and provided all arrears of rent shall be paid up to that day, the said term shall cease and determine ; and the said \lessee'\, his executors, administrators, and assigns, shall be discharged of and from any further payment of the rent hereby reserved, or performance of the covenants, provisos; and conditions hereinbefore contained ; and in that case, also, the money which shall become payable, by virtue of any such insurance, and the remaining materials of the buildings, shall become and be the absolute property of the said \lessor'\, his heirs, or assigns ; or the said \lessee'\, his executors, administrators, or assigns, shall have the liberty of continuing the tenant or tenants for the residue of the said term ; and, in that case, he or they shall continue such tenant or tenants, and shall re-instate the buildings so destroyed or damaged by fire, to the satisfaction of the surveyor for the time being of the said \lessor\ his heirs, or assigns, within after such fire ; then the remaining mate- rials of the buildings shall become and be the property of the said \hssee\ his executors, administrators, or assigns ; and as soon as the loss or damage by fire shall be repaired, the sum to be received for such insurance shall be paid to him or them. APPENDIX. 623 8. For Apportionment of Rent, on Surrender, hy Lessee, of Part of Demised Premises. And it is hereby further declared and agreed, that so much Provisos and such part of the said premises as were granted to the said tions. [lessee], by the said (hereinbefore in part recited) indenture of lease, and are not hereby suiTendered to the said [lessor], as aforesaid, shall henceforth be held and enjoyed by the said [fes«ee], his executors, administrators, and assigns, at the reduced yearly rent of , by way of apportionment of the said rent of , and under and subject to the same covenants, provisos, and conditions, as are contained in the same indenture of lease. 9. Between Vendor [Lessor] and Purchaser, for Apportion- ment of Rent, on a Sale of the Reversion of Part of the Demised Premises. And the said [vendor-lessor] and [purchaser], as far as they lawfully may or can, do hereby mutually consent and agree, and also direct and appoint, that the said yearly sum of , payable by the said [lessee], as aforesaid, shall (subject to a proportional part of the deductions to be made out of the said rent), henceforth, during the residue of the term of the said [lessee] in the said lands and hereditaments hereby released and conveyed, or intended so to be, be payable and paid to the said [purchaser], his heirs, and assigns, as his and their proportion of the said rent, for or in respect of so many and such parts of the lands and hereditaments out of which the same rent is re- served as are hereby released and conveyed, or intended so to be. 10. For Determination of Lease, at the End of first Fourteen Years, at Option of Lessee. Provided always, that if the said [lessee], his executors, administrators, or assigns, shall be desirous of quitting the said premises, and surrendering and delivering up this present inden- ture of lease, and of such his, her, or their desire shall give notice in writing, to be delivered to the said [lessor], his heirs, or assigns, or to be left at his, her, or their respective usual or last known place of abode, at least twelve calendar months before the end 624 APPENDIX. Provisos or expiration of the first fourteen years of the said term hereby tions. granted, and if the said yearly rent hereby reserved shall be paid up to the time of such quitting, and the said premises left in such good and sufficient repair as hereinbefore mentioned, and all and every the said taxes and assessments paid and discharged ; then, from and immediately after the end and expiration of the first fourteen years of the said term hereby granted, these pres- ents, and every thing herein contained, shall thenceforth cease and determine. 11. For Determination of Lease hy Either at the End of first Three or Five Years of the Term, on giving Notice to the Other. Provided always, that if the said [lessor'], his executors, administrators, or assigns, shall be desirous of putting an end to the said term of seven years hereby granted at the end of the first three or five years thereof, and shall give unto the said [lessee'], his executors, administrators, or assigns, six cal- endar months' notice, in writing, of such his or their desire, previously to the expiration of the first three or five years ; or if the said [kssee], his executors, administrators, or assigns, shall be desirous to quit the said premises hereby demised at the end of the first three or five years of the said term of seven years, and of such his or -their desire shall give six calendar months' notice, in writing, to the said [lessor], his executors, administrators, or assigns, before the expiration of the said first three or five years, then, and in either of the said cases, these presents, and every clause and thing herein contained, shall, at the expiration of the first three or five years of the said term, cease and determine, without prejudice, nevertheless, to any remedy which either of the said persons, parties hereto, or his respective representatives, may have against the other of them, or his representatives, for breach, non-observance, or non-perform- ance of the said covenants or agreements hereinbefore contained, or any or either of them. 12. In Lease for Lives, or for Years determinable with Lives, that Proof of Lives being in Existence shall lie on Lessee. Provided always, that when and as often as any question shall arise in any court of justice, whether the persons or person APPENDIX. 625 on whose death the term hereby granted is made determinable Provisos be living or dead, it shall be incumbent on the person or persons ^[g^g_ then interested in, or claiming to have the right of, the said premises, by or under this present demise, to prove such person or persons to be living ; and that, in default of such proof, such person or persons shall be deemed and taken to be dead, any law or usage to the contrary notwithstanding. 13. To enable Under-Lessee to pay his Rent to Original Lessor. And it is hereby further declared and agreed that the said [imder-kssor'\, his executors, or administrators, shall pay the original rent reserved to the said [original lessor^, his heirs, or assigns, within ten days next after the same shall have become due, quarterly ; but in case he shall neglect or refuse so to do, then it shall be lawful for the said [under-lessee^, his executors, administrators, or assigns, to pay the same unto the said [original lessor~\, his heirs, or assigns, by and out of the rent hereby reserved, if he or they shall accept thereof; and that his or their receipts shall be good and effectual discharges for so much of the rents for which such receipts shall be given. 14'. That, on Lessee's Default, Lessor may insure, and recover Premiums, as Sent in Arrear. And that if the said [lessee'], his executors, administrators, or assigns, shall, at any time during the said term, neglect or refuse to effect, or renew, and continue such insurance or insur- ances, or to produce such policy or policies, or any such receipt as aforesaid, then it shall be lawful for the said [lessor], his heirs, execulors, administrators, or assigns, to insure the said premises in such manner as he or they shall think proper ; and the amount of the sum or sums which shall from time to time be expended in so doing shall be added to the said yearly rent hereby reserved, and shall or may be recovered in the same manner as rent in arrear ; and that, from time to time, in case of fire, all such sum and sums of money as shall be recovered or received, by virtue of such insurance or insurances, shall, with all convenient speed, be applied, expended, and paid out, under the direction of the said [lessor], his heirs, or assigns, or of his or their surveyor, in rebuilding or restoring and repairing the said erections, buildings, 53 626 APPENDIX. Provisos and premises ; and, in case of deficiency, the same shall be made tSnsf"''^^"'' good by the said [Zmee], his executors, administrators, or assigns. NO. xn. CONCLUSIONS or LEASES. 1. In a Lease between Private Individuals, when executed hy Both. Conclusions In witness whereof, the said parties to these presents have here- of leases. mjjQ ggt their hands and seals the day and year first above written. 2. In a Lease hy a Corporation. In witness whereof, the said [lessors'] have, to one part of these presents, caused their common seal to be afiixed, and to another part of these presents the said [lessee'] hath set his hand and seal, the day and year first above written. NO. XIII. A Lease of City Property, with Covenants. Parties &c '^^^^ indenture, made the first day of April, one thousand eight hundred and forty-four, between A. B., of the city of New York, Esquire, party of the first part, and C. D., of said city, merchant, party of the second part, witnesseth, that the said party of the first part, for and in consideration of the rents, covenants, and agreements hereinafter mentioned, reserved, and contained, on the part and behalf of the said party of the second part, his executors, administrators, and assigns, to be paid, kept, and performed ; has granted, demised, and to farm letten, and grant and] by these presents does grant, demise, and to farm let unto the demise g^^j^ party of the second part, his executors, administrators, and assigns, all that certain messuage or dwelling-house and lot of ^ ^ ground, situate, lying, and being in the fifteenth ward of the mises; said city of New York, and known as number , in Tenth Street, bounded as follows, to wit : beginning at a point on the APPENDIX. 627 southerly side of Tenth Street, distant westerly from the south- westerly corner of Broadway and Tenth Street three hundred feet, and running thence westerly in front twenty-five feet, thence southerly, at right angles to Tenth Street, ninety-eight feet, thence easterly parallel to Tenth Street, twenty-five feet, thence northerly, at right angles to Tenth Street, ninety-eight feet, to Tenth Street, at the point or place of beginning. To have and to hold the said abovementioned and described prem- ises, with the appurtenances, unto the said party of the second part, his executors, administrators, and assigns, from the first day of May, one thousand eight hundred and forty, for and during, and until the full end and term of twenty-one years thence next ensuing, and fully to be complete and ended ; yield- ^f ^^f""' ing and paying therefor unto the said party of the first part, his heirs, or assigns, yearly and every year during the said term hereby granted, the yearly rent or sum of five hundred dollars, lawful money of the United States of America, in equal quarter- yearly payments, to wit, on the first day of May, August, No- vember, and February, in each and every of the said years, provided always, nevertheless, that if the yearly rent above proviso for reserved, or any part thereof, shall be behmd or unpaid for the space of fifteen days next after any of the days of payment, whereon the same ought to be paid as aforesaid, it being first lawfully demanded ; or if default shall be made in any of the covenants herein contained, on the part and behalf of the said party of the second part, his executors, administrators, and assigns, to be paid, kept, and performed ; then and from thence- forth it shall and may be lawful for the said party of the first part, his heirs, or assigns, into and upon the said demised prem- ises, and every part thereof, wholly to re-enter, and the same to have again, repossess, and enjoy, as in his and their first and former estate ; and that from and after such re-entry made, this lease, and every thing therein contained, shall determine and be utterly void to all intents and purposes ; and also, in the event and for dis- of the said rent remaining due and unpaid in manner aforesaid, ^^'^^^' it shall and may be lawful for the said party of the first part, his executors, administrators, and assigns, to distrain for any rent that may remain due thereon, any thing hereinbefore con- tained to the contrary thereof in anywise notwithstanding. And the said party of the second part, for himself, his heirs, Lessee covenants executors, and admmistrators, doth covenant and agree to and to pay rent; 628 APPENDIX. with the said party of the first part, his heirs, and assigns, by these presents, that the said party of the second part, his execu- tors, administrators, or assigns, shall and will yearly and every year during the said term hereby granted, well and truly pay, or cause to be paid, unto the said party of the first part, his heirs, or assigns, the said yearly rent above reserved, on the days and in the manner limited and prescribed as aforesaid for the payment thereof, without any deduction, fraud, or delay, except in according to the true intent and meaning of these presents (save ' and except at all times during the said term, such proportionable part of the said yearly rent as shall or may grow due during such time as the said tenement shall, without the hinderance of the said C. D., his executors, administrators, or assigns, be and remain uninhabitable by reason of accidental fire). to pay taxes And also that he, the said C. D., shall and will pay, or cause and other ,.-,,, -, ■ ■ ■ , , charges; to be paid, all taxes, assessments, and impositions whatsoever (ground-rent only excepted), which at any time, during the con- tinuance of the said term, shall or may be assessed or imposed on the said premises, or any part thereof, or on the said A. B., his executors, administrators, or assigns, on account thereof. to keep the And also that he, the said C. D., his executors, administrators, repS?^^ ™ o'" assigns, shall and will, at his or their own proper costs and charges, cause to be well and sufficiently painted all the outside wood and iron work belonging to the said premises every third year during the continuance of the said term, and shall and will also, at his and their like proper costs and charges, during the said term, keep in good, sufficient, and tenantable repair, as well all and singular the glass and other windows, rooms, floors, partitions, ceilings, walls, roof, gutters, fences, pavements, grates, sinks, privies, drains, wells, and watercourses, as also all and damages every other the parts and appurtenances of the said premises excepted; (damage happening by casual fire only excepted). And also that he, the said C. D., his executors, administrators, or assigns, shall not, nor will at any time during the continuance of the said term, use or carry on, or suffer and permit to be used not to carry and carried on, in or upon the said premises, or assio-n over this on offensive , „,•._. ° trades; lease, or any part of the premises herein contained, to any person or persons using or carrying on the trade, business, or calling of a maker of sedan or other chairs, baker, brewer, butcher, currier, distiller, dyer, founder, smith, soap-boiler, schoolmaster or school- mistress, sugar-baker, auctioneer, pewterer, tallow-chandler or APPENDIX. 629 tallow-melter, working brazier, tin-man, tripe-boiler, pipe-maker, pipe-borer, plumber, or any other noxious or offensive trade, business, or calling whatsoever, without the consent, in writing, of the said A. B., his executors, administrators, or assigns, first had and obtained for that purpose. And also that he, the said C. D., his executors, administrators, or any of them, shall not, nor will at any time during the said term, demise, let, set, or assign over the said premises, or any assign or part thereof, to any person or persons whomsoever, for any term without the or time whatsoever, without the license and consent of the said A. [eg^oj"' °^ B., his heirs, or assigns, in writing, under his or their hand, first had and obtained for such purpose. And also that, on the last day of the said term, or other sooner determination of the estate hereby granted, the said party of the second part, his executors, administrators, or assigns, shall and and surrren- will peaceably and quietly leave, surrender, and yield up unto end of the the said party of the first part, his heirs, or assigns, all and '°^' singular the said demised premises, with their appurtenances, in such good, sufficient, and tenantable repair as aforesaid ; together with all and every the doors, locks, keys, bolts, bars, chim- ney-pieces, grates, windows, shelves, and other things thereunto belonging, in as good plight and condition as the same now are (reasonable use and wear thereof, and casualties happening by fire, only excepted). And the said party of the first part, for himself, his heirs, executors, and administrators, doth covenant and agree to and with the said party of the second part, his executors, administra- tors, and assigns, by these presents, that the said party of the second part, his executors, administrators, or assigns, paying the said yearly rent above reserved, and performing the covenants and agreements aforesaid on his or their part ; the said party of the second part, his executors, administrators, and assigns, shall Lessor cov- and may, at all times during the said term hereby granted, quiet enjoy- peaceably and quietly have, hold, and enjoy the said demised '^®"'' premises, for and during the said term of years hereby granted, without any manner of let, suit, trouble, or hinderance of or from the said party of the first part, his heirs, executors, administra- tors, or assigns, or any other person or persons whomsoever, lawfully claiming from, by, or under him, or any of them ; and that freed and discharged, or otherwise indemnified of and from all former and other grants, sales, feoffments, demises, dower, 53* 630 APPENDIX. debts, duties, judgments, ground-rents, due or to grow due thereon during the said term, and all other estates, rights, titles, charges, and encumbrances whatsoever, had, made, done, or suffered in any wise whatsoever, by the said party of the first part, or by any other person or persons whatsoever, having or lawfully claiming any estate, right, title, or interest in the said premises, or any part or parcel thereof. And that the said A. B., his executors, administrators, or assigns shall and will, on or before the expiration of this present lease, on the request, and at the costs and charges of the said C. D., his executors, administrators, and assigns, grant and lease-'^^ ^^'^ execute to him and them a new and fresh lease of the premises hereby demised, with their appurtenances, for the further term of twenty-one years, to commence from the expiration of the term hereby granted ; the same to be at the same yearly rent, payable in like manner, and under and subject to the like covenants, provisos, and agreements (except a covenant for further renewal), as are contained in these presents ; such new lease, however, to be granted and valid on condition that the said C. D., his executors, administrators, or assigns, do execute a counterpart thereof, and also pay the said A. B., his executors, administrators, or assigns, the sum of five hundred dollars, at the time of executing said lease, as and by way of fine or premium for the renewal thereof in case of -^"d also that in case the said premises shall, at any time during the said term, be destroyed or injured by an accidental fire, the said A. B., his executors, administrators, or assigns, shall and will forthwith, as soon as conveniently may be there- after, proceed to rebuild and repair the same in as good condition as the said premises were in before such fire, and that in the mean time, and until said premises are rebuilt and put in good and tenantable order, the rent hereby reserved shall cease. In witness whereof, the parties to these presents have hereto set their respective hands and seals the day and year first above written. , Sealed and delivered ■> A. B. (l. s.) in the presence of ) C. D. (l. s.) APPENDIX. 631 NO. XIV. Agreement for Granting a Farming Lease. Memorandum of an agreement made this day of , in the year , between A. B., of , of the one part, and C. D., of , of the other part, whereby it is agreed that the said A. B. shall, on or before the first day of March, make and execute unto the said C. D., his executors, administrators, and assigns, a good and valid lease of all that messuage, piece or parcel of land, situate, &c., with the appurtenances thereunto belonging, for the term of years from the said first day of , at the yearly rent of dollars, payable half-yearly, clear of all deductions for taxes, or on any other account whatever ; the first payment of said rent to be made on the first day of next ; and at and under the further yearly rent of ■ ■ dollars for every acre, and so in proportion for a less quantity, of meadow or pasture ground which shall be ploughed or converted into tillage contrary to a covenant to be contained in said lease, as hereinafter directed; the first pay- ment of said last-mentioned rent to be made on the first half- yearly day after such conversion into tillage as aforesaid. And in the said lease there shall be contained covenants on the part of the said C. D., his executors, administrators, and assigns, to pay the aforesaid rents, and to pay all taxes and assessments ; for doing all manner of repairs to the buildings, hedges, ditches, rail and other fences (the said A. B. providing upon the prem- ises, or within two miles thereof, rough timbei-, bricks, tiles, and lime for the doing thereof, to be conveyed by the said C. D., his executors, administrators, or assigns) ; for permission for the said A. B., his heirs, or assigns, at all seasonable times to view the state of the premises ; that the said C. D., his executors, administrators, or assigns, shall not plough or convert into- tillage any of the closes of meadow or pasture ground, without the license of the said A. B., his heirs, or assigns, in ■writing, first obtained ; that the said C. D., his executors, or administrators, shall not carry off from the farm any hay, straw, or other fodder, and that the said C. D., his executors, adminis- trators, or assigns, shall spread on some part of the said lands, in a husband-like manner, all the dung, manure, and compost 632 APPENDIX. which shall arise from the said farm, and shall in all respects cultivate the same in a husband-like manner, and according to the usual course of husbandry practised in the neighborhood, and shall leave all the dung, manure, and compost of the last year for the use of the landlord, or succeeding tenants. That the said C. D., his executors, administrators, or assigns, shall not cut or flash any of the quick-hedge under three years' growth, and shall cut and flash those at seasonable times in the year, and, at the time of doing thereof, shall cleanse the ditches adjoining thereto, and guard and presei-ve the hedges which shall be so cut and flashed as aforesaid, from destruction or injury by cattle, and shall also, at all times, guard and preserve all young hedges and young trees from the like destruction and injury. That the said C. D., his executors, administrators, or assigns, shall, in the summer immediately preceding the determi- nation of the said term to be granted as aforesaid, prepare for seed, in a husband-like manner, such part of the land as shaU be in a course of fallow, and fit to be sown with a crop the ensuing season, and lay down with clover seed and rye-grass twenty acres of the arable land which shall be then in tillage, sowing upon each acre thereof ten pounds of the best clover seed, and one bushel of the best rye-grass seed. And in the said lease there shall be contained a proviso for re-entry by the said A. B., his heirs, or assigns, in case of the non-payment of rent for the space of twenty days, or non-performance of the covenants, or in case the said C. D., his executors, administrators, or assigns, shall assign, underlet, or otherwise dispose of the said premises, or any part thereof, or do, commit, or suffer any' act or deed, whereby or by means whereof ,tlie said premises, or any part thereof, shall be assigned, underlet, or disposed of, without the consent, in writing of the said A. B., his heirs, or assigns, first obtained. And there shall be contained covenants on the part of the said A. B., his heirs, and assigns, for quiet enjoyment. That the said A. B., his heirs, or assigns, shall, upon ten days' notice, provide and allow to the said C. D., his executors, administrators, and assigns upon the premises, or within two miles thereof, all such rough timber, bricks, tiles, and lime as shall be necessary for the repairs of the premises, the said materials to be conveyed at the expense of the said C. D., his executors, administrators, or assigns. That the said A. B., his heirs, and assigns, shall permit the said C. D., his exe- APPENDIX. 633 cutors, administrators, or assigns, to have the use of the great barn, the stable for four horses adjoining, and the stack-yard and farm-yard, until one month after the expiration or determi- nation of the said term, for the convenience of thrashing out the last year's crops of corn and grain, and feeding his or their cattle with the straw and fodder, so that the same may be made into manure, to be left on the said premises as aforesaid ; and also some convenient room in the farm-house for his or their servants to lodge and diet in, until the time aforesaid, without any recompense being made for the same respectively. In witness whereof, the said parties have hereunto set their hands and seals the day and year first above written. Sealed and delivered "> A. B. (l. s.) } in the presence of j C. D. (l. s.) NO. XIV. A Farming Lease for Fifteen Tears, under a Power to Lease. This indenture, made the 24th day of February, &c., 1844, between A. B., of the one part, and C. D., of the other part, witnesseth, that for and in consideration of the rents, covenants, Parties. and agreements hereinafter reserved and contained, and on the part of the said C. D., his executors, administrators, and assigns, to be paid, observed, and performed, he, the said A. B., pursuant Witnesaeth to and by force and virtue of a certain power or authority, to • him for this purpose given or limited, by virtue of or under the last will and testament of I. J., Esq., deceased, doth by these presents appoint, demise, and lease unto the said C. D., his ex- ecutors, administrators, and assigns, all that farm-house called demises to Y. Z., situate, &c., with the barns, stables, and other out- '®^^^^ buildings, yards, gardens, and orchards thereto belonging, and all the several pieces or parcels of arable land, meadow, pasture, the premi- and marsh ground therewith occupied at T. Z., aforesaid, con- general taining altogether by estimation 650 acres (be the same more '^°^^' or less), now in the tenure and occupation of the said C. D., and all ways, lights, casements, waters, water-courses, commons, profits, commodities, hereditaments, and appurtenances whatso- ever to the said farm-house, lands, and premises belonging, or in any wise appertaining (except and always reserved unto excepting 634 APPENDIX. to the lessor said A. B. and his assigns, and the person or persons for the ' ' ■' time being entitled to the reversion of the said premises after his decease, all and all manner of woods, groves, coppices, and springs, and all trees of oak, ash, elm, and all other timber, and timber-like trees whatsoever ; and the branches and sheds, tops and lops of the same; and all fniit-trees, but not the fruit thereof; and all willows, and other trees whatsoever, and all the underwoods, thorns, bushes, and quicksets, in, upon, or about the said premises, except the lops and tops of pollards, stubs, and surplus thorns, required for firing, which may be taken by the said C. D., his executors, administrators, and assigns, and all the reeds in the marshes now standing and growing, or being, or which at any time or times hereafter, during the continuance of his demise, shall stand, grow, or be upon the said premises, or any part thereof; and also all mines and quarries in, under, and upon the same premises ; and also all such marl, clay, chalk, brick-earth, gravel, sand, stones, and other materials, which now are, or hereafter, during the continuance of this demise, shall be under or upon the same premises, or any part or parts thereof, as the said A. B. or his assigns, or any other the person or persons aforesaid, may choose to have and carry away ; with with leave free liberty of ingress, egress, and regress, to and for the said away^ &c., -^^ ^- ^^'^ ^^^ assigns, or other the person or persons aforesaid, and his and their agents, servants, and workmen, at seasonable times in the year, during the continuance of this demise, with or without horses, carts, carriages, and all other necessary things into, upon, from, and out of all or any part or parts of the premises hereinbefore demised, to view, fell, and cut down, hew, grub up, cut, saw, convert, dig for, and carry away the said excepted woods, trees, minerals, and other things respec- tively, or any part or parts thereof respectively; and also to graft and plant, and transplant trees, and sow tree seeds in or near the hedgerows, borders, and waste places, and in the woods, groves, coppices, and springs, of or belonging to the said premises, and to fence about and preserve the same from injury, by cattle or otherwise, at his and their free will and pleasure, thereby doing as httle damage as possible to the reserving all said C. D., his executors, administrators, or assigns. And also ' ■' except and always reserved unto the said A. B. and his assigns, and other the person or persons aforesaid, all manner of game, fish, and wild fowl, with free liberty for him and them, and his APPENDIX. 635 and their servants and friends, at all seasonable times to hunt, hawk, fish, fowl, set, course, shoot, and sport upon or over the said premises hereinbefore demised, or any part or parts thereof. And full and free liberty of ingress, egress, or regress, to and with liberty ■,,. 11 to enter and lor hira and them, and his and their agents, servants, and work- view tlie men, at all reasonable times in the year, into, upon, from, and ^[f™''^' out of all or any part or parts of the same premises, to view repair ; the state and condition of the buildings thereon, and to pull down, rebuild, alter, and repair the houses and buildings thereon, or any of them, at their or his pleasure, and also to view the state and condition of the repairs hereinafter covenanted to be done by the said C. D., his executors, administrators, and assigns, to give notice in writing, to the said C. D., his executors, administrators, and assigns, for doing such repairs as shall from time to time be necessary and proper to be done ; and also to bring, carry, lay, make, and repair all the materials and things necessary and proper to be used in or about the pulling down, rebuilding, altering, or repairing the said house, buildings, and premises, or any part or parts thereof, thereby doing as little damage as possible to the said C. D., his executors, adminis- trators, and assigns; and also except and reserved unto the to sow . , , T, -1 , . . -. -1 seeds, &c., said A. B. and his assigns, and other the person or persons aforesaid, free liberty for him and them, and his and their suc- ceeding tenant or tenants of the said premises hereinbefore demised, and their or any of their servants and workmen, with horses and all necessary implements of husbandry, in due season in the last year of this demise, to enter into and upon so much of the arable lands hereinbefore demised, as shall be then sown with summer corn, there to sow clover, or other grass seeds, with such summer corn, and to harrow and roll in the same ; and also except and reserved unto the said A. B. and his assigns, and other the person or persons aforesaid, convenient lodging- -ivith accom- room for his and their servants and workmen, and convenient ^"jiig'ser- stable-room for his and their horses, and for hay, straw, and ™°^ ^^^ provender for such horses, during the time of such horses and workmen being employed in sowing the said clover, and other grass seeds, and in harrowing and rolling in the same ; and also free liberty of ingress and regress for him and them, and his and their servants and workmen, with horses and carriages, or ' otherwise, to come, go, pass, and repass into, over, upon and from the said premises, or any of them, or any part or parts 636 APPENDIX. to have and to hold for fifteen years; resen-ation of rent. Proviso for re-entiy, in case of non- payment of rent: thereof, at all reasonable times, for any reasonable cause or thing whatsoever). To have and to hold the said farm-house, pieces, or parcels of land, and all and singular other the premises hereinbefore demised or expressed, and intended so to be (except as hereinbefore is excepted and reserved), with their appurte- nances, unto the said C. D. his executors, administrators, and assigns, for the term of fifteen years, to be computed from the day of now last past, and thenceforth next ensuing and fully to be complete and ended ; yielding and paying therefor, yearly and every year during the said term of fifteen years, the yearly rent of $665 of lawful money of the United States of America, in the shares and proportions on or at the days or times, and in the manner hereinafter mentioned (that is to say), the sum of $265, part thereof on the first day of January; the sum of $100, further part thereof, on 1st day of April ; the sum of $200, other part thereof, on the 1st day of July ; and the sum of $100, the residue thereof, on the 1st day of October, in every year of the said term, except the last year thereof; and the last payment in the last year thereof to be made on the 1st day of August instead of the 1st day of October ; without any deduction or abatement whatsoever for or in respect of the land-tax, or any other present or future taxes, charges, rates, impositions or assessments, or any other matter, cause, or thing whatsoever ; the first payment, in respect of the said yearly rent, to be made on the 1st of April next ensuing the day of the date of these presents ; and also yield- ing and paying yearly, and every year during the said term of fifteen years the additional yearly rent or sum of $10 for every acre, and so in proportion for any greater or less quantity than an acre of the said premises hereinbefore demised, which shall be ploughed, dug, broken up, or converted into tillage or garden ground, contrary to and in breach of the covenant hereinafter contained ; the said further rent of $10 to be paid on the last day of payment in every year in which the same shall happen to become payable, without any deduction in abatement whatso- ever. Provided always, and these presents are upon this express condition, that if the said yearly rent or sum of $665, or the said additional rent hereinbefore reserved, or either of them, or any part thereof respectively, shall be in arrear by the space of twenty days next after the same respectively ought to have been paid as aforesaid, being lawfully demanded by the said APPENDIX. 637 A. B., his executors, administrators, or assigns, or if the said C. D., his executors, administrators, or assigns, shall at any time or times, during the continuance of this demise, transfer, or assign over, or underlet, or attempt or agree to transfer, or or if lessee assign over, or underlet to any person or person whomsoever, or underlet- the said premises hereinbefore demised, or any part or parts thereof, for all or any part of the said term of fifteen years, without the license or consent, in writing, of the said A. B. or his assigns, or other the person or persons aforesaid, for that pur- pose first had and obtained ; or if the said C. D., his executors, or become administrators, or assigns, shall become a bankrupt or bankrupts, ' or shall compound his or their debts, or assign over his or their estates and eflTects for payment thereof, or if any execution shall issue against him or his effects, whereupon the said premises or any part thereof shall be taken, or attempted to be taken in execution ; or if the said C. D., his executors, administrators, or in case or assigns, shall not, from time to time and at all times during performance the continuance of this demise, well and truly observe, perform, of ™y °*<''' ■^ ^ covenant or fulfil, and keep all and singular the covenants, conditions, and condition. agreements, which, on his or their parts, are or ought to be observed, perfoz-med, fulfilled, and kept according to the true intent and meaning of these presents, then in any and every such case, and although no advantage shall have been taken of any previous default, it shall and may be lawful to and for the said C. D. and his assigns, and the other person or persons aforesaid, into and upon the said premises hereinbefore demised, or into any part thereof in the name of the whole, wholly to re-enter, and the same to have again, repossess, and enjoy as his, her, or their former estate ; any thing hereinbefore con- tained to the contrary thereof in anywise notwithstanding. And the said C. D. doth for himself, his heirs, executors. Lessee cov- administrators, and assigns, covenant, promise, and agree with pay'^rent; and to the said A. B., his heirs, and assigns, and other the person or persons aforesaid, in manner following (that is to say), that he, the said C. D., his executors, administrators, or assigns, or some or one of them, shall and will well and truly pay or cause to be paid unto the said A. B. and his assigns, or other the person or persons aforesaid, the said yearly rent or sum of $665, and the said additional rent hereinbefore resei-ved, and made payable at such days or times, and in such manner as is hereinbefore mentioned and appointed for payment of the 54 638 APPENDIX. to pay taxes and other charges ; to deliver half the pigeons killed on the prem- ises; to do work with a team; to repair ; same respectively, according to the true intent and meaning of these presents. And also shall and will well and truly pay, bear, and discharge the land-tax and all other taxes, charges, rates, duties, and assessments whatsoever, either already taxed, charged, rated, assessed, or imposed, or at any time or times hereafter, during the continuance of this demise, to be taxed, charged, rated, assessed, or imposed upon the said yearly rent of $665, or upon the said additional yearly rent, or upon the said premises hereby demised, or any of them, or any part or parts thereof, or upon the said A. B. or his heirs or assigns, or other the person or persons aforesaid, as landlord or landlords of the same premises, by any lawful authority howsoever ; and also shall and will, at all times hereafter during the continuance of this demise, allow and deliver, or cause to be delivered unto the said A. B. and his assigns, or other the person or persons aforesaid, at his or their residence, in aforesaid, one half of the pigeons which shall from time to time be killed from the dove-cot from the said premises ; and also shall and will, yearly and every year during the continuance of this demise, at his and their own costs and charges, performed by successive days' carriage-work, with a wagon and team of three horses and a servant, for the said A. B. and his assigns, or other the person or persons for the time being entitled as aforesaid, he or they giving to the said C. D., his executors, administrators, or assigns, three days' previous notice of the time and place when and where the same work is to be done ; but nevertheless the said wagon shall not be compelled to go to any greater distance than seven miles from the farm-house hereinbefore demised. And also shall and will, at all times during the continuance of this demise, when need or occasion shall be or require, and whether any notice shall be given for the reparation of the same or not, at his and their own proper costs and charges, well and substantially uphold, repair, maintain, sustain, and amend all the glass windows and glazings of the said messuage or tenement, and farm-house hereby demised, and all the locks, keys, hinges, bolts, bars, fixtures, pumps, and the going-gears thereof, gates, gate-irons, stiles, pales, posts, rails, battens, bridges, hedges, ditches, drains, intercourses, and inward and outward fences of every kind, of or belonging to the said premises here- inbefore demised, or any part or parts thereof (such allowance of rough timber and fencing stuff being from time to time made APPENDIX. 639 to him and them, as is hereinafter covenanted to be made) ; and the same articles and things being well and sufficiently upholden, repaired, supported, maintained, sustained, and amended as afore- said, shall and will peaceably and quietly leave, surrender, and surrender yield up the said messuage and premises hereinbefore demised, of the term; with the same unto the said A. B. or his assigns, or other the person or persons for the time being entitled as aforesaid, at the end of the said term of fifteen years, or sooner determination of the present demise, together with all such fixtures, materials with all and things as now are, or shall at any time or times during the fi^'™<^^! continuance of this demise, be set and affixed within, upon, or about the said premises hereinbefore demised, or any part or parts thereof (reasonable use and uses thereof, and accidents except in poop f\T flVft • by fire only excepted). And also that he or they shall and will ' find and provide good winter corn and straw sufficient for provide thatching ; thatching and daubing all or any of the said buildings and premises hereby demised, or any part or parts thereof, without any allowance being made to him or them, in respect of the same. And also shall and will, at his and their own costs and carry the charges, fetch and carry all the materials which shall be wanted for repairs ; to repair any of the buildings and premises hereinbefore demised, and lay the same in convenient places for use, provided the carriage thereof does not exceed the distance of ten miles from the said farm-house. And also shall and will find and provide provide re- frfi s h 111 Gn ts the workmen with good and wholesome refreshment, according for the to the custom of the country, during the time in which any ^""^ ™'^°' such repairs shall be doing, without any allowance being made to him or them, in respect of the same. And also that he, the that he will said C. D., his executors, administrators, or assigns, or any of or underlet; them, shall not nor will, at any time or times during the con- tinuance of this demise, transfer, assign over, or underlet to any person or persons whomsoever the said premises hereinbefore demised, or any part or parts thereof, for all or any part of the said term of fifteen years, without the license and consent, in writing, of the said A. B. or his assigns, or other the person or persons for the time being entitled as aforesaid, for that purpose first had and obtained. And also that he, the said C. D., his nor plough executors, administrators, or assigns, shall not nor will, at any Ufeadow time or times during the continuance of this demise, plough, ^™'^' dig, break up, or convert into tillage or garden ground any of the fields, closes, pieces or parcels of pasture or meadow land 640 APPENDIX. or mow the cultivate in a liusband- lilce man- ner: hereinbefore demised, or any part or parts thereof respectively (except a piece of land called the Eye, which he or they may break up and cultivate, in the same manner as the other arable lands). And also shall not nor will, durina; the last three years grass more . . o .- than once a of this demise, mow, or cause or suffer to be mowed, the fields, ' closes, pieces or parcels of land hereinbefore demised, or any of them, or any part or parts thereof respectively, more than once a year, or, during the continuance of this demise, to be trodden down and damaged by heavy cattle. And also shall and will, at all times during the continuance of this demise, so manage and cultivate the arable lands, parcel of the said premises here- inbefore demised, that no more than two successive crops of corn, pulse, or grain (and those two not of tlie same kind), shall be grown upon, or had, or taken from off the same, or any part or parts thereof, without giving the same a clear summer fallow, and sowing the same with turnips in the ensuing year ; and for the next crop, after such turnips, laying down the same land in a husband-like manner with a sufficient quan^ty of sound clover and other grass seeds, and continuing the same two years, to be accounted and computed from the midsummer-day next after sowing the same seeds. And also shall and will, yearly and every year during the said term, inbarn or stack up in the said premises all the corn or grain which shall arise or grow there- from, and there thresh the same, and spend and consume on the said premises, by feeding and foddering cattle therewith, or otherwise, all the straw, colder, chaff, and clover arising there- from ; and also all the hay or turnips that shall grow or arise from or upon the said premises hereinbefore demised, except the winter corn straw that shall be wanted for thatching and daubing work ; and also except half the hay and clover which shall arise in the last year of this demise, and the whole of the straw, chaiF, and colder ai-ising from the corn in the said last year, which half of the hay, and the entirety of which straw, chaff, and colder shall be left upon the premises, for the benefit of the said A. B. or his assigns, or other the person or persons for the time being entitled as aforesaid, or his or their succeed- mg tenant or tenants of the same premises, for which it is agreed that so much money shall be paid, by the person or persons receiving the benefit thereof, as the same shall be reasonably worth in the judgment of two competent persons, one of them to be chosen by the said C. D., his executors, intiam the grain upon the premi- ises; APPENDIX. 641 administrators, or assigns, and the other of them to be chosen by the person or persons taking the same ; and in case the two persons so named shall disagree, as to the amount of such valuation, then the same shall be referred to the valuation of a third competent person, to be chosen by the said two so first chosen, and the valuation so to be made by them or him, as the case may be, shall be binding and conclusive upon all the parties ; and in consideration of the said straw, chaff, and colder, the said A. B. or his assigns, or other the person or persons for the time being entitled as aforesaid, shall, at his and their own costs and charges, carry, or cause to be carried, all the corn and grain from which the said straw, chaff, and colder shall arise, to any distance which the said C. D., his executors, administrators, or assigns shall require, not exceeding fifteen miles from the farm-house hereinbefore demised. And also use all tiie shall and will expend, spread, and lay in a husband-like manner, ^^^^ y^g where the same shall be most wanted, all and every the dung, ^'■^'^^' manure, muck, and compost, that shall be made and arise during the continuance of this demise, from the hay, straw, colder, clover, tares, vetches, and turnips, that shall be so spent and consumed on the said premises as aforesaid (except the dung, manure, and compost, that shall arise and be made therefrom in the last year of this demise, and the first day of May then next ensuing), and shall and will turn up in heaps, and leave in the yards, or some other convenient parts of the said premises hereinbefore demised, the dung, manure, muck, and compost, so excepted as aforesaid (except such part thereof as shall be used in preparing for turnips), for the support, benefit, and nourishment of the land hereinbefore demised, with- out any allowance being made to him or them, in respect of the same. And also that he, the said C. D., his executors, keep up the administrators, or assigns, shall and will, yearly and every year ditches'-" during the continuance of this demise, in a husband-like manner, cut and scower, or cause to be cut and scowered, one hundred yards of the fences and ditches upon such part of the arable lands hereinbefore demised, and fifty rods of the fences and ditches upon such part of the marsh lands as shall most require cutting and scowering ; and do or cause to be done all such outhauling, banking, and planting necessary for that purpose, being allowed bushes, thorns, and other fencing stuff, to be taken upon the premises. And also shall and will, on the day of surrender at 54* 642 APPENDIX. the end of the term : sow turnip seed in tlae last year of the term, for the ben- elit of the lessor; and permit the lessor to harrow and roll in the land, provide ac- commoda- tions for lessor's workmen. immediately preceding the expiration of this demise, give and deliver up the peaceable possession unto the said A. B. or his assigns, or other the person or persons for the time being entitled as aforesaid (without being entitled to any diminution in rent), one sixth part of the arable land hereinbefore demised, and which one sixth part shall have been sown with good sound clover and rye-grass, at the rate of twelve pounds of clover and one peck of rye-grass seeds per acre. And also that he, the said C. D., his executors, administrators, ar assigns, shall and will at proper times in the last year of this demise, plough one other one sixth part of the arable lands hereinbefore demised, and sow the same with turnip seeds, and harrow in the same, and hoe, and keep clean, and preserve the same for a crop ; and, at the expiration of this demise, leave the. same unfed for the benefit of the said A . B. and his assigns, or other the person or persons for the time being entitled as aforesaid, or his or their succeeding tenant or tenants ; for which turnips it is hereby agreed that he and they, or his or their succeeding tenant or tenants of the same premises shall pay unto the said C. D., his executors, administrators, or assigns, so much money as the same shall be valued at, and be reasonably worth, in the judgment of two persons and their umpire, to be chosen as hereinbefore is mentioned. And also that he, the said C. T>., his executors, administrators, or assigns, shall and will permit and suiFer the said A. B. and his assigns, or other the person or persons for the time being entitled as aforesaid, or his or their succeeding tenant or tenants in the same premises, and their or any of their servants and workmen, with horses and oxen, and all necessary implements of husbandry in due season, in tlie last year of this demise, to enter into and upon all such of the arable lands hereinbefore demised as shall then be sown with summer corn, and to harrow and roll in the same, and shall and will give timely notice to the said A. B. or his assigns, or other the person or persons for the time being entitled as aforesaid, or the succeeding tenant or tenants of the same premises, at the proper time when the same ought to be sown as aforesaid, and shall and will carefully protect and preserve the same from being destroyed or damaged, by cattle or otherwise. And also shall and will find and provide convenient lodging-room for the servants and workmen of the said A. B. or his assigns, or other the person or persons for the time being entitled as APPENDIX. 643 aforesaid, or his or tkeir succeeding tenant or tenants of the same premises, and convenient stable-room for his or their horses, and for hay and straw provided for such horses, during the time of such workmen, servants, and horses being employed in sowing the said clover and other grass seeds, and in harrow- ing and rolling in the same. And also that he the said C. D., destroj' ... . moles, his executors, administrators, and assigns, , shall and will, from tinae to time and at all times during the continuance of this demise, use his and their best endeavors to kill and destroy, or cause to be killed and destroyed, all moles and other vermin found in or upon the premises hereinbefore demised, or any part thereof. And also shall and will, at all proper seasons in and weeds; every year during the continuance of this demise, and particu- larly before seeding . time, mow and keep down all thistles, docks, and other seeding weeds, upon the said premises hereby demised, and every part thereof respectively. And also that nor suffer he, the said C. D., his executors, administrators, or assigns, shall to tl•e^pass ; not nor will permit or suffer any person or persons whomsoever to sport or trespass upon any of the said premises hereinbefore demised, or any part or parts thereof, without leave, in writing, frdm the said A. B. or his assigns, or other the person or persons for the time being entitled as aforesaid, but shall and will, at his or their request, give proper notice or notices, in writing, to forbid any person or persons sporting or trespassing thereon, and at the like request of the said A. B. or his assigns, or other the person or persons as aforesaid, give or cause such notice or notices to be given in evidence, and proved in any court or courts that shall be thought necessary to convict any such person or persons sporting or trespassing thereon. And that it permission shall and may be lawful to and for the said A. B. or his assigns, suits in ttie or other the person or persons aforesaid, to bring, any action or {eg^e." ^ actions in the name or names of the said C. D., his executors, administrators, or assigns, against any person or persons who shall or may be found sporting or trespassing on the said premises hereby demised, or any part thereof, and which action or actions neither he nor they shall wilfully release, discontinue, or discharge, or become nonsuit therein, and shall not nor will disclose or make known any thing relating thereto, which may be prejudicial to the prosecuting the same, the said A. B. or his assigns, or other the person or , persons aforesaid indemnifying the said C_. D., his executors, administrators, and assigns, from 644 APPENDIX. not to com- all costs and damages, to be incurred thereby. And also that mi wabe, ^^^ ^^^ ^^^ ^^ ^^ ^^^ executors, administrators, or assigns, shall not nor will, at any time or times hereafter during the continuance of this demise, commit any waste upon the said premises hereby demised, or any part thereof, by felling, cutting down, grubbing up, lopping, topping, cutting, or stubbing, or cause, or willingly or negligently permit or suffer to be felled, cut down, hewn, grubbed up, lopped, topped, cut, or stubbed any timber, or timber-like trees, or fruit trees, or any seedlings, or young spires thereof, or any bodies of poUards, or wiUows, now growing or being, or which shall at any time or times hereafter, during the continuance of this demise, grow or be on the said premises hereby demised, or any part or parts thereof, nor shall nor will fell, stub, lop, top, or injure any quickthorns or bushes (except the lops and tops of the pollards, stubs, and surplus thorns required for firing, and the quickthorns and bushes required for fencing), but shall and wiU, on the contrary, use his and their utmost endeavors to preserve the same from being spoiled or injured. And also shall not nor wiU commit any waste upon the said premises hereby demised, or any part thereof, by ploughing or digging any of the marshes or pasture ground hereinbefore demised (except the said piece of land called the Eye, which it shall and may be lawful to and for the said C. D., his executors, administrators, or assigns, to break up and cultivate in the same manner as the other arable lands). Provided always that, notwithstanding the covenants and reser- vations hereinbefore contained, the said A. B., or his assigns, or other the person or persons entitled as aforesaid, shall or may pursue any remedy in equity, to which he or they would otherwise be entitled, to restrain the conversion or digging of the said marshes or pasture ground, or the cutting any trees, quickthorns, or bushes, contrary to the covenants hereinbefore contained in that behalf. And the said A. B. doth, for himself, his heirs, executors, and administrators, covenant, promise, and agree with .and to the buildiBgs in g^j^ Q j) y^[g executors, administrators, and assigns, by these good tenant- ' '_ _ ' o y j able repair; presents, in manner following (that is to say), that he, the said A. B., and his assigns, and other the person or persons for the time being entitled as aforesaid, shall and will keep the farm- house, barns, stables, and all other buildings hereinbefore de- mised, in good and tenautable order and repair (other than and Lef^sor cov- enants to keep the APPENDIX. 645 except such repairs as are hereinbefore covenanted to be made by the said C. D., his executors, administrators, or assigns, he and they performing, such covenants on his and their parts). And shall and will, on request, assign and allow unto the said t" allow ^ „ , . . timber, &c., C. D., his executors, admuiistrators, and assigns, during the for tenant's said term, proper and necessary timber and rough wood for ' repairing the gates, lifts, posts, pales, stiles, rails, bars, and other things belonging to the said premises hereby demised, which are to be repaired by the said C. D., his executors, administra- tors, and assigns ; and also thorns, stakes, quicks, and bushes, for making, mending, and repairing the hedges, ditches, drains, and fences thereof, provided such bushes, stakes, and quicks can be found thereon, and not otherwise. And also shall and will permit ten- permifand suffer the said C. D., his executors, administrators, bams, &c.; and assigns, to have and use the drift-way for his sheep and cattle, on the east side of the lands called Cop Hills, as the same is now set out, and shall and will permit and suffer the said C. D., his executors, administrators, and assigns, to use, occupy, and enjoy the barns and stalk-yards belonging to the said premises hereinbefore demised, to lay up, and thresh, and drfess his or their corn and grain, and shall and will allow con- venient lodging-room for his and their servants and workmen employed therein, until the first day of May next after the end of this demise. And further, that he the said C. D., his execu- and for quiet enjoy- tors, administrators, and assigns, paying the same yearly rent of meut. $665, and other the rents hereinbefore reserved, as the same shall become due and payable, in manner and form aforesaid, and well and truly observing, performing, fulfilling, and keeping all and singular the covenants, conditions, and agreements here- inbefore contained, on his and their parts to be observed, performed, fulfilled, and kept according to the true intent and meaning of these presents, shall or lawfully may have, hold, use, occupy, possess, and enjoy all and singular the said messuage, tenement, or farm-house, and other the premises hereinbefore demised or expressed, and intended so to be, with their appur- tenances, during the said term of fifteen years, without the lawful let, suit, trouble, or hinderance of or by the said A. B. or his assigns, or other the person or persons for the time being entitled as aforesaid, or any person or persons whomsoever, lawfully claiming or to claim by, from, under, or in trust for him, them, or any of them. In witness, &c. 646 APPENDIX. NO. XV. A New York Manor Leased Parties. This indenture, made the twenty-eighth day of September, in the year of our Lord one thousand eight hundred and twenty- six, between Edward P. Livingston, and Elizabeth his wife, of Clermont, Columbia County, and State of New York, of the first part, and Bruce C. Smith, of Lexington, Greene County, and State aforesaid, of the second part, witnesseth : That the party aforesaid of the first part, for and in consideration of the rents and covenants hereinafter mentioned, which, on the part and behalf of the party aforesaid of the second part, are to be paid, done, observed, performed, fulfilled, and kept, hath de- mised, bargained, enfeoffed, set, and to farm let, and by these presents doth demise, set, and to farm let, unto the party afore- said of the second part, his heirs, and assigns, all that certain parcel of land lying in the town of Lexington, county of Greene, Premises, in great lot number twenty-one in the Hardenburge Patent, being in the subdivision number twelve of said lot, and formerly part of Benjamin Chamberlain's farm, beginning on the noi-therly side of Schoharry Kill and the iron-wood tree, cornered and marked VxC, and stones round it, runs from thence along the division line between this farm and Benjamin Chamberlain, north, thirty-two degrees and thirty minutes east, thirteen chains and forty-five links, to a stake and stones at the edge of the lowland, and north twenty-eight degrees east, sixty-five chains and fifty links, along a line of marked trees formerly run by George Stimson to an old marked beech tree B, standing on the old line of marked trees, the bounds of a lot in possession of Richard Peck, thence along the same, north, forty-two degrees and thirty minutes east, one chain and eleven links to a stake and stones, twelve links north-east of the old beech corner tree, thence along the old marked line, south, fifty-seven degrees and thirty minutes, east, twelve chains to an old beech corner tree, thence along an old line of marked trees, the bounds of Samuel Adams's lot and Abraham Van Volkenburgh's lot, south thirty- two degrees and thirty minutes west, eighty-one chains to the 1 For a history of these leases, see § 12, and note. APPENDIX. 647 said Schoharry Kill, to an old cornered maple tree, standing one chain and sixty links south, forty-three degrees west from the south-west corner of Caleb Hyde's, house, thence down the stream of the said Kill to the place of beginning, containing eighty acres, be the same more or less, being the farm hereto- fore leased to Jeremiah Martin, on the 29th of September, 1818. Together with all and singular the trees, woods, and underwoods, to be made use of on the premises, and nowhere else. Saving and always reserving to the party of the first ^gng'™' part, their heirs and assigns for ever, all streams, creeks, and runs of water, and all mines, minerals, ores, and metals of every nature and kind, upon or within the farm hereby demised, standing, being, or to be found, with full and free« ingress, egress, regress, and power and liberty at all times to search, dig, and carry away the same, or to manufacture the same thereupon, and, for that purpose, to make and erect mills, dams, and other buildings, and also to take and use all such timber, firewood, stone, and other materials, as may be found in any part of the said demised farm, proper and necessary for his or their use. But it is hereby provided, that for so much, of the said demised "™^'^"- farm as shall by these means become encumbered, or rendered useless to the party of the second part, there shall be deducted out of the yearly rents by these presents reserved a reasonable abatement, in proportion to the whole quantity of the said hereby demised farm, during the time that any part may be so encumbered or rendered useless. To have and to hold the said Habendum, farm, land, and premises hereinbefore demised (saving, reserv- ing, and excepting as aforesaid), unto the party aforesaid of the second part, his executors, administrators, and assigns for ever, from the day before the date of these presents ; to the proper Yearly rent, use, benefit, and behoof of the party aforesaid of the second part, his executors, administrators, and assigns, yielding and paying therefor, during the continuance of this present lease, yearly and every year, unto the party aforesaid of the first part, their heirs, or assigns, the yearly rent of seventeen and a half bushels of good, sweet, merchantable winter wheat, for the above-demised premises, to be delivered and paid by the party aforesaid of the second part, his heirs, or assigns, on the first day of every month of May, yearly, at such storehouse or place within fifty miles from the above-demised premises, and to such person as the party aforesaid of the first part, their heirs, 648 APPENDIX. entry. executors, administrators, or assigns, shall from time to time, at pleasure, appoint or direct to receive the same ; the first pay- ment to be made on the first day of May, in the year of our Lord one thousand eight hundred and twenty-seven, which rent is to be paid without any deduction or abatement of or for any manner of taxes, charges, assessments, or impositions whatso- ever, that have or shall be taxed, charged, assessed, or imposed upon the hereby demised premises, or any part thereof, or upon the party aforesaid of the second part, his heirs, or assigns, for or on respect thereof, by any power or authority whatsoever ; Eight of re- provided always, that these presents are upon this condition, that if the said yearly rent, or any part thereof, shall be behind, and unpaid, or unpej-formed in any part or in all, by the space of twenty days next after any of the days appointed or to be appointed as aforesaid, for rendering, paying, or performing the same as aforesaid ; or if the party aforesaid of the second part, his heirs, or assigns, shall not take possession and improve the farm aforesaid within six months after date hereof, or leave the possession for the space of six months, or shall not observe, keep, and perform the several articles, covenants, and agreements in these presents particularly hereafter expressed, on his or their part to be observed, kept, and performed ; that then, and in any or either of these cases, these presents, and the estate by these presents demised, or intended to be demised, are to be void, determine, and cease ; and thereupon it shall and may be lawful to and for the party of the first part, their heirs, and assigns, into the said farm, land, and premises, or in any part, in the name of the whole, to re-enter, and have again, retain, repossess, and enjoy, as in their first former estate. And also in case of the party aforesaid of the second part, his heirs and assigns, or any of them, be minded and desirous hereafter to dispose of the said farm, or any part thereof, or to underlet the same, with the appurtenances, the orchards, fruit trees, nurseries, dung-hill, which shall be deemed parcel of the said farm, that then the party aforesaid of the second part, his heirs, or assigns, shall not nor will not sell or dispose of, or underlet the same, before leave first had and obtained, under the hand and seal of the party aforesaid of the first part, their executors, administrators, or assigns. Also that the said party of the second part shall and will from time to time, and at all times during the term hereby demised, keep, maintain, and preserve Covenant against un- derletting. Covenant to repair. APPENDIX. 649 the touse, barn, barracks, buildings, fences, and enclosures, made or to be made and erected on the hereby demised farm, in good and sufficient repair. Also that the party aforesaid of Covenant the second part, his heirs, or assigns, shall, in the first year, ^i|,^ strew apple-seed, or pomace upon a patch of land on said farm for a nursery, well prepared for that purpose, of at least fifty feet square, to the intent that, within six years, there be planted a regular orchard of one hundred apple-trees at least, at thirty-six feet asunder, and as many of them as may happen to die, others in their stead to be replaced, so that the number of one hundred like trees at least be complete and planted out, and enclosed with a good fence for their safety. Also that the party aforesaid of the second part, his heirs, or assigns, shall not, by themselves or procurement, peel any bark, for tanner's use, off or from any tree standing or laying down on the said farm ; or, by his or their privity, suffer any wood to be disposed of or burnt into coal for furnace, forge, or bloomery use, or into ashes for any potash work ; or shall the party aforesaid of the second part, his heirs, or assigns, take in or join any other person or persons in conjunction, to farm on shares, or cropping. And also that the party aforesaid of the second part, his executors, adminis- trators, and assigns, shall from time to time hereafter be subject to all reasonable orders, as regulating fences, laying out paths and roads, and to amend and repair the same, when necessarily devised by the party aforesaid of the first part. And this lease Eestraints is upon the express condition that the aforesaid land, before it aSon.^ '™" shall be sold, assigned, or underlet, by the said party of the second part, his heirs, or assigns, shall be fixed at the price he or they mean to take, and the first offer thereof, at the said price, shall be made to the said party of the first part, their heirs, or assigns ; and also, when sold, underlet, or mortgaged, or in any way disposed of otherwise than by will or descent, that the person so taking the same shall take a new lease from the said party of the first part, their heirs, or assigns, subject to the same rents, covenants, and conditions contained in this lease, together with a new covenant and condition in all things similar to this ; it being declared to be the intention hereof, that this lease is to be renewed upon every sale, assignment, or under- letting, as long as the term hereby granted shall continue, and shall pay to the said party of the first part, their heirs, or assigns, one tenth part of the sale-money, which shall be consid- 55 650 APPENDIX. ered as a condition binding the land, as also all other covenants and conditions herein contained, and for a breach of any of which the said party of the first part, their heirs, or assigns, may re-enter and recover the Said land, as if no lease had been granted. In witness whereof, the parties to these presents have inter- changeably set their hands and seals, the day and year first above written. Edwaed p. Livingston. Elizabeth S. Livingston. Beuce C. Smith. Sealed and delivered ) Hoeace Stevens. in the presence oi ) NO. XVII. A Building Lease. Parties, &c., This indenture, made, &c., between A. B., fee, of the one part, and C. D., of the other part, witnesseth : That the said A. B., for and in consideration of the rents, covenants, and agreements hereafter reserved and contained, by and on the part and behalf of the said C. D., his executors, administrators, and assigns, to be paid, done, and performed, hath demised, demise leased, set, and to farm let, and by these presents doth demise, lease, set, and to farm let unto the said C. D., his executors, administrators, and assigns, all that piece or parcel of ground situate, lying, and being on, &c., in the said , containing in breadth on the north side thereof , and in depth on the east side thereof , be the same more or less, and on the west side thereof , east , and from thence south , and from thence east, be the same more or less, together with the messuages or tenements, and other the erections and buildings thereon, which the said C. D. shall have full liberty to pull down, and to take to and for his own use ; which said piece or parcel of ground abuts north on aforesaid, south on gardens to some houses on the north side of , belonging to the said A. B., now on lease to , east on buildings, &c., and west, &c., and is more fully delineated and described in the plan or APPENDIX. 651 ground plot thereof, in the margin of these presents, together with all erections and buildings to be erected and built thereon, and all ways, paths, passages, drains, water, watercourses, ease- ments, profits, commodities, and appurtenances, whatsoever, be- longing and which shall belong to the said hereby demised premises, or any part or parcel thereof, to have and to hold the for the said piece or parcel of ground, messuages, or tenements, erec- ' tions, buildings, and premises hereby demised, or intended so to be, with their and every of their appurtenances, unto the said C. D., his executors, administrators, and assigns, from the day of last past, before the date thereof, for and during and unto the full end and term of years, from thence next ensuing, and fully to be complete and ended, yielding and paying therefor, reservation for the first year of the said term hereby demised, the rent of a peppercorn on the last day thereof, if demanded, and yielding and paying therefor yearly and every year, for and during the remaining years of the said term hereby demised, unto the said A. B., his heirs, and assigns, the yearly rent or sum of of lawful money of the United States gf America, by half- yearly payments, on the and in each year, by even and equal portions, the first payment thereof to begin and be • made on , in the year of our Lord , the said several rents to be paid and payable from time to time, on the several days aforesaid during the said term, free and clear of all rates, taxes, charges, assessments, and payments whatsoever, taxed, charged, assessed, or imposed upon the said hereby leased premises, or any part thereof, by any lawful authority howso- ever, during the term hereby granted. And the said C. D., for himself, his heirs, executors, admin- Leasee cov- . . enants to istrators, and assigns, doth covenant, promise, and agree to and pay rent; with the said A. B., his heirs, and assigns, by these presents, in manner following (that is to say), that the said C. D., his heirs, executors, administrators, and assigns, shaR and wUl, yearly, and every year during the last years of the said term hereby granted, well and truly pay, or cause to be paid unto the said A. B., his heirs, and assigns, the said yearly rent or sum of , of lawful money of the United States, on the several days and times, and in the manner hereinbefore limited and appointed for payment thereof, without making any deduc- tion or abatement thereout, for or in respect of any rates, taxes, assessments, duties, charges, or impositions whatsoever, taxed. 652 APPENDIX. to pay taxes, &c. i to erect houses ; -to repair and main- tain the same; not to suf- fer oifen- sive trades to be car- ried on upon the premises ; charged, assessed, or imposed upon the said hereby-demised premises, or any part thereof, during the said term hereby granted, all which rates, taxes, assessments, duties, charges or impositions he, the said C. D., his executors, administrators, or assigns shall and will bear, pay, and discharge, and therefore and therefrom acquit, save harmless, and keep indemnified the said A. B., his heirs, and assigns. And that he, the said C. D., his executors, administrators, or assigns, shall and will, before the expiration of the first year of the term hereby granted, at his and their own proper costs and charges, erect, build, complete, and in a workmanlike manner finish, one or more good and substantial brick messuages or tenements, upon some part of the ground hereby demised, and shall and will lay out and expend therein the sum of or upwards, and also that he, the said C. D., his executors, administrators, and assigns, shall and will from time to time and at all times, from and after the said messuage or tenement, erections, and buildings on the said piece of ground hereby demised, shall be respectively com- pleted and finished, during the remainder of the said term hereby granted, when, where, and as often as need or occasion shall be and require, at his and their own proper costs and charges, well and sufficiently repair, uphold, support, maintain, pave, purge, scour, cleanse, empty, amend, and keep the said messuage or tenement, messuages or tenements, erections, and buildings, and all the walls, rails, lights, pavements, grates, privies, sinks, drains, and watercourses thereunto belonging, and which shall belong unto the same, in, by, and with all and all manner of needful and necessary reparations, cleansings, and amendments whatsoever. And that he, the said C. D., his executors, admin- istrators, and assigns shall not nor will, during the said term hereby granted, permit or suffer any pei-son or persons to use, ex- ercise, or carry on, in and upon the said hereby-demised premises or any part thereof, any trade or business which may be nauseous or offensive, or grow to the annoyance, prejudice, or disturbance of any of the other tenants of the said A. B., near adjoining thereto, and the said messuage or tenement, messuages or tenements, erections, buildings, and premises, with the walls, pavements, sewers, and drains belonging thereto, being in every respect so well and sufficiently repaired, upheld, supported, sus- tained, maintained, paved, purged, scoured, cleansed, emptied, amended, and kept, shall and will, at the expiration or other APPENDIX. 653 sooner determination of the said term hereby granted, peaceably surrender •in -, . , •' ^^ , . , . „ at the end and quietly leave, surrender, and yield up unto the said A. B., of the term his heirs, and assigns, together with all the doors, locks, keys, ings^gx- bolts, bars, wainscots, chimney-pieces, slabs, foot-paces, windows, '"'■<^' ^'^ window-shutters, partitions, dressers, shelves, pumps, water-pipes, rails, and all other things which shall be any ways fixed and fastened to, and shall be standing, being, and set up in and upon the said premises hereby demised, or any part thereof, within the last years of the said term hereby granted. And that the to keep the Drfiiniscs said C. D., his executors, administrators, and assigns, shall and insured ; will, at his and their own proper costs and charges, from time to time sufficiently insure all and every the messuages or tene- ments, erections, and buildings, which shall be erected and built upon the said piece or parcel of ground hereby demised, or any part thereof, from casualties by fire, during the then remainder of the said term hereby granted, in some or one of the public offices kept for that purpose in New York or Boston ; and in case the said messuage or tenements, erections, and buildings, or any of them, or any part of any of them, shall, at any time or times during the said term, be burnt down, destroyed, or and re- damaged by fire, shall and will, from time to time, immediately case of fire ; afterwards .rebuild, or well and sufficiently repair the same. And fui;ther, that it shall and may be lawful to and for the said A. B., his heirs, and assigns, or any of them, with workmen or .others, in his, their, or any of their company, or without, to enter or come into and upon the said demised premises, and permit the Isssor to every part thereof, at seasonable and convenient times, in the examine daytime, as well at any time or times during the last seven years is(^?'^'^°^" of the said term hereby granted, to make an inventory or schedule of the several fixtures and things then standing and being in and upon the said hereby-demised premises, which are to be left, at the end of the said term, to and for the use of the said A. B., his heirs, and assigns, pursuant to the covenant hereinbefore in that ' behalf contained, as also twice, or oftener, in every year during the said term hereby granted, to view, search, and see the defects and want of reparation of the said premises, and all defects and want of reparations, which, upon every or any such view or search, shall be from time to time found, to give or leave notice or warning thereof, in writing, at or upon the said demised premises, unto and for the said C. D., his executors, administrators, or assigns, to repair and amend 55* 654 APPENDIX. and that lessee will repair; proviso for re-entry for a breach of any cove- nant on the part of the lease thereupon to become void. Lessor cov- enants for quiet en- joyment. the same. And that the said C. D., his executors, admin- istrators, or assigns, shall and will, within three months next after every such notice or warning shall be given or left, at his and their own proper costs and charges, well and sufficiently repair, amend, and make good all and every the defects and want of reparations, whereof such notice or warning shall be so given or left as aforesaid. Provided always, nevertheless, and these presents are upon this condition, that if the said yearly rent, or sum of hereby reserved, or any part thereof, shall be behind and unpaid, by the space of days next after either of the said days of payment, whereon the same ought to be paid as aforesaid (being lawfully demanded), or if the said C. D., his executors, administrators, or assigns, shall not well and truly observe, perform, fulfil, and keep all and every the covenants, articles, clauses, conditions, and agreements in these presents expressed and contained, on his and their part and behalf to be performed and kept, according to the true intent and meaning thereof, then and from thenceforth, in either of the said cases, it shall and may be lawful to and for the said A. B., his heirs, and assigns, into and upon the said demised premises, or any part thereof in the name of the whole, wholly to re-enter, and the same to have again, retain, repossess, and enjoy, as in his and their first and former estate, and the said C. D., his executors, administrators, or assigns, and all other tenants or occupiers of the said premises, thereout and from thence utterly to expel, put out, and amove ; and that from and after such re-entry made, this present lease, and every clause, article, and thing herein contained on the lessor's part and behalf, from thenceforth to be done and performed, shall cease, determine, and be utterly void, to all intents and purposes whatsoever, any thing hereinbefore contained to the contrary thereof in anywise notwithstanding. And the said A. B., for himself, his heirs, and assigns, doth' hereby covenant, promise, and agree, to and with the said C. D., his heirs, executors, administrators, and assigns, paying the said yearly rent hereby reserved, in manner and form aforesaid, and observing, performing, and keeping all and singular the cove- nants and agreements hereinbefore mentioned, on his and their parts and behalf to be performed and kept, shall and may lawfully, peaceably, and quietly have, hold, occupy, possess, and enjoy the said piece or parcel of ground and premises hereby APPENDIS. 655 demised, -with their and every of their appurtenances, for and during the said term of years hereby granted, without any lawful let, trouble, denial, or interruption, of or by the said A. B., his heirs, or assigns, or any other person or persons lawfully claiming, or to claim by, from, or under him, them, or any of them. In witness, &c. NO. XVIII. An Indorsement for continuing a Lease for a longer Term, after the Expiration of the Present. This indenture, &c., between the within-named A. B., of the one part, and the within-named C. D., of the other part, wit- nesseth : That for and in consideration of the rent hereby reserved, and of the covenants, conditions, and agreements re- spectively hereinafter contained, which, on the part of the said C. D., his executors, administrators, and assigns are to be paid, done, and performed, the said A. B. hath demised, leased, set, and to farm let unto the said C. D., his executors, adminis- trators, and assigns, all that piece or parcel of ground, with the messuage or tenement thereon erected and built, and all and singular other the premises respectively comprised in the within written lease, and thereby demised to the said C. D. (except Continu- as therein is excepted), to have and to hold the said piece or fg'^gg ^y j^. parcel of ground, and messuage or tenement, and all and sin- doisement. gular other the premises hereby leased, let, and to farm let, or mentioned or intended so to be (except as aforesaid), unto the said C. D., his executors, administrators, and assigns, from the •■ day of , which will be in the year of our Lord , and when the said within written lease will expire, for and during and unto the"' full end and term of years longer, from thence next ensuing, and fully to be complete and ended, subject to and under the like rent, and payable in like manner as is within mentioned, for and in respect of the rent reserved in and by the said within written lease, and subject to the like power of entry, as well on the non-payment of rent, as on the happening of any of the other incidents mentioned in the within 656 APPENDIX. ■written proviso, or condition of re-entry, and it is hereby de- clared and agreed, by and between the said parties to these Agree to be presents, that they and their respective heirs, executors, ad- all cove- ministrators, and assigns, shall and wiU, by these presents, during the continuance of the additional term of years hereby granted, stand and be bound, for and in respect of the said hereby demised premises, with the appurtenances, in such and the like covenants, conditions, and agreements respectively, as they, the said parties, and their respective heirs, executors, administrators, and assigns do now stand bound in and by the said within lease, for and during the now residue unexpired of the within-mentioned term hereby granted, it being the intent and meaning thereof that this present indorsed lease, and ' the additional term hereby granted, shall be upon such and the like footing, and all the covenants, clauses, conditions, and agree- ments respectively therein contained, be equally available, take place, and have the like force and effect, to all intents and pur- poses, as if every article, clause, matter, and thing contained in the said within lease, were inserted and contained in this present indenture. In witness, &c. No. XIX. Underlease hy a Mortgagee and Mortgagor of a House and Premises, with a Provision for Payment of the Rent to the Mortgagor. Parties. This indenture, made the day of ,18 — , between A. B., of (mortgagee of the messuage or tenement and premises hereinafter described and demised, or intended so to be), of the first pai-t, C. D., of (mortgagor of the same messuage or tenement and premises), of the second part, and Testatum, \lessee'], of , of the third part, witnesseth : That in considera- tion of the rent, covenants, and agreements hereinafter reserved and contained, and on the part of the said \lessee'\, his executors, administrators, and assigns to be paid, observed, and performed, he, the said [mortgagee'], with the consent and approbation of the said [mortgagor'], and according to his estate and interest in the APPENDIX. 657 premises^ doth by these presents demise and lease, and the said Mortgagee [mortffagor'] doth by these presents demise, lease, ratify, and and mort- confirm unto the said [lessee'], his executors, administrators, and ^^f^J j[Jj*j^ assigns, all that messuage or tenement, &c., together with all coufinns. ' ' o Parcels and outhouses, buildings, &c., to have and to hold, &c., yielding and general paying therefor yearly, during the said term, the yearly rent Habendum. of , of lawful money of , unto the said [mortgagee'], his J„^*^™' executors, administrators, and assigns,^ subject to such equity of redemption as the said demised premises are now subject or liable to ; and subject also to the proviso or agreement herein- after contained, in respect to the intermediate payment of the said rent, until such notice as is hereinafter mentioned ; such yearly rent of to be paid by quarterly payments, on the 25th day of March, the 24th day of June, the 29th day of September and the 25th day of December, clear of the sewers-rate, and all and all manner of taxes, assessments, rates, and impositions whatsoever, now or hereafter to be charged, assessed, or imposed upon the said premises hereby demised, or on the said yearly rent hereby reserved, or on the said [mortgagee and mortgagor], or either of them, their or either of their heirs, executors, ad- ministrators, or assigns, in respect thereof; Provided always, and proviso for it is hereby agreed and declared, that in the mean time, and Payment of until the said [mortgagee], his executors, administrators, or assigns, mortgagor . . till notice shall require to have the receipt of the rents and profits of the by mort- said premises hereby demised, or intended so to be, and shall give S^^®^' unto the said [lessee], his executors, administrators, or assigns, or leave at the same premises notice, in writing, requiring the said [lessee], his executors, administrators, or assigns to pay the said rent hereby reserved to him, the said [mortgagee], his executors, administrators, or assigns, the same rent shall or may be paid to the said [mortgagor], his executors, administrators, or assigns ; and if, at any time previously to such notice having been Power of ■ given or left as aforesaid, the same rent, or any part thereof, be mortgagor. unpaid for the space of fourteen days after the respective days or times whereon the same ought to be paid as aforesaid, then and in such case, and so often as the same shall happen (although no lawful demand shall have been made thereof), it shall be law- ful for the said [mortgagor], his executors, administrators, or 1 The mortgage was upon a term for years, the mortgagor beiiig but a termor. 658 APPENDIX. Covenants by lessee ; to pay rent to mort- gagor till notice, and afterwards to mort- to pay rates and taxes ; and pre- miums of insurance effected by mortgagee or mort- gagor. Limit of amount re- coverable by distress. assigns, to enter into and distrain upon the said premises hereby demised for the said yearly rent, or so much thereof as shall then be in aiTear, and the distress and distresses then and there made to take lead, carry away, and impound, and in pound to detain and keep, and in due time afterwards to sell or dispose of, or otherwise to act therein according to the law, to the intent that, by the ways and means aforesaid, he, the said [^mortgagor], his executors, administrators, and assigns shall and may be fully paid and satisfied the arrears of the said rent, and also all costs, charges, and expenses which shall be sustained or incurred, in consequence of any such distress or distresses. And the said [lessee] doth hereby, for himself, his heirs, executors, adminis- trators, and assigns, covenant with the said [mortgagee], his executors, administrators, and assigns, and also separately with the said [mortgagor], his executors, administrators, and assigns, in manner following : that is to say, that he, the said [lessee], his executors, administrators, and assigns shall and will yearly, during the continuance of the said term hereby granted, pay unto the said [mortgagor], his executors, administrators, or assigns, until such notice shall have been given or left as afore- said, and afterwards to the said [mortgagee], his executors, ad- ministrators, and assigns, the said yearly rent of , on the respective days, and in manner hereinbefore appointed for pay- ment thereof, without any deduction whatsoever. And also shall and will pay the sewers-rate, and all manner of other taxes, assessments, rates, and impositions whatsoever, which now are, or hereafter, during the said term, shall be assessed, rated, or imposed on the said messuage or tenement and premises, or any part thereof, or on the said yearly rent hereby reserved, or any part thereof, or on the said [mortgagee] and [mortgagor], or either of them, their, or either of their executors, adminis- trators, or assigns, on account thereof. And will also pay, on demand, unto the said [mortgagee] and [mortgagor] respectively, and their respective executors, administrators, and assigns, all premiums, costs, charges, and expenses, and all and every sum and sums of money which the said [mortgagee] and [mortgagor] respectively, or their respective executors, administrators, or assigns shall from time to time, during the said term, expend for insuring the said messuage or tenement and premises, from loss or damage by fire, to the extent of ; and that the amount of the said premiums, costs, charges, and expenses shall also be APPENDIX. 659 recoverable by distress on the said premises, as and in the nature of rent reserved upon a lease for years. And also, that If insur- . aiice money in case any loss or damage by fire shall, during the said term insufficient hereby granted, happen to the said messuage or tenement and d°amage9, premises, or any part thereof, and the money received by the l^^s^see to said [mortgagee] and [mortgagor], or either of them, their, or ence. either of their executors, administrators, or assigns, under or by virtue of the policy or policies of insurance thereon, shall not be sufficient, and so far as the same will not extend to rebuild, repair, or re-instate the said messuage or tenement, erections, and buildings, then the said [lessee], his executors, administra- tors, or assigns shall and will also pay unto such of them, the said [mortgagee] and [mortgagor], or his executors, adminis- ' trators, or assigns as shall rebuild, repair, and re-instate the said messuage or tenement, erections, and buildings, the difference in amount between the sum recovered under or by virtue of the said policy or policies of insurance, and the sum expended in so rebuilding, repairing, and re-instating the' said messuage or tene- ment, erections, buildings, and premises, or any part thereof. And also, &c. [add here a covenant by lessee to repair and Covenant ,„-,.,, , ' 1 to repair ; cleanse, &c.J And the same messuage or tenement and prem- and to yield ises, with the appurtenances, so being in all parts and things "I't^'rni. ■ from time to time weU and sufficiently repaired, upheld, sus- tained, &c. [as in the covenant to repair], shall and will peacea- bly and quietly leave, surrender, and yield up, at the end of the said term, unto the said [mortgagee], his executors, administra- tors, or assigns, in case his aforesaid mortgage shall be then sub- sisting, but otherwise to the said [mortgagor], his executors, administrators, or assigns ; together with all such fixtures thereon or thereto belonging as are usually deemed landlord's fixtures. And further, that it shall be lawful for the said [mortgagee] and [mortgagor] respectively, and their respective executors, administrators, and assigns, and also for the superior landlord or landlords of the said messuage or tenements and premises, and his or their surveyor or surveyors, agents, or ser- . on- Power of vants, twice in every year, &c. [here insert power to lessors to re-entry to enter and see state of repairs of the premises, and a covenant by '^^^l''^^^' lessee to repair, according to notice]. And also, &c. [covetiant ^°^ '° ^'" by lessee not to carry on any offensive business, nor assign with- sive busi- ovi license. Provided always, &c. [add proviso for the re-entry assign' of the mortgagee, his executors, administrators, arid assigns ; J^gnse.' 660 APPENDIX. Proviso for lessor's re- entry on non-pay-* ment of rent, &c. Covenant by raort- ffagor for lessee's quiet en- joyment and indem- nity against original lessor. Covenant by mort- gagor to expend in- surance money on repairs. , Covenant by mort- gagee for lessee's quiet en- joyment. Covenant by lessee to advance renewal not exceed- ing . and also of the mortgagor, his executors, administrators, and assigns, on non-payment of rent, or non-performance of cove- nants ; and a covenant hy the mortgagor for the lessee's quiet enjoyment, on paying the rent reserved, and performing and ob- serving the covenants hy him to he performed and observed, and add'], and also saved harmless and indemnified from the rent and covenants reserved and contained in a certain indenture of lease, bearing date on or about the day of- , in the year , and made, or expressed to be made, between , of the one part, and the said [mortgagor'] of the other part, whereby the said did, for the considerations therein mentioned, demise and lease the said messuage or tenement and premises hereby demised, unto the said [mortgagor'], his executors, administrators, and assigns, from the day of the date thereof, for the full term of forty years thence next ensuing ; and free from all claims and demands in respect thereof. And also that he, the said [mort- gagor], his executors, administrators, or assigns shall and will, in case of any loss or damage by fire happening to the said mes- suage or tenement and premises, immediately on receipt or recovery of the money due upon or by virtue of any policy or policies of msurance of the said premises, fuUy and faithfully lay out and expend the same, so far as the same will extend, in rebuilding, repairing, and re-instating the said messuage or tene- ment and premises hereby demised. And the said [mortgagee] doth hereby, &c. [insert covenant by the mortgagee for the lessee's quiet enjoyment, on payment of rent, S^c, as against him, the mortgagee, and persons claiming under him]. And the said [lessee] doth hereby, for himself, his heirs, executors, adminis- trators, and assigns, covenant with the said [mortgagor], his executors, administrators, and assigns, that in case the said shall, at any time during the continuance of this present demise, be willing to renew the said lease, bearing date on or about the said day of for a further term of years, he, the said [lessee], his executors, administrators, or assigns will, at the request, in writing, of the said [mortgagor], his executors, administrators, or assigns, pay to the said , or their proper officer duly authorized to receive the same, the fine that shall be imposed upon such renewal of the said last-mentioned lease, and also the expenses of the same renewal, so that such fine and expenses do not exceed together the sum of of lawful money of , and if the same fine and expenses together shall APPENDIX. 661 exceed that sum, then will, at such request as aforesaid, pay so much of the same fine and expenses as shall amount to that sum. And the said [mortgagor] doth hereby further, for himself, Covenant his heirs, executors, admmistrators, and assigns, covenant with ga^oi to the said [lessee], his executors, administrators, and assigns, that, undfrfeT upon payment of any such fine and expenses of renewal as renewed aforesaid, or of such part thereof as aforesaid, by the said lessee, for ,-,-,,. ■■ . . . 1 T • 1 securing re- [lessee], his executors, adraimstrators, or assigns, he, the said payment [mortgagor'], his executors, administrators, or assigns shall and ^^ "^^ will, immediately upon such renewal, at his or their own costs iiiterest. and charges, effectually assign or demise, at the option of the said [lessee], his executors, administrators, or assigns, the prem- ises to be comprised in such renewed lease, with their appurte- nanees, unto the persons or person paying the same fine and expenses of renewal, or such part thereof as aforesaid, their or his executors, administrators, or assigns, for the term, or for all the term except the last day thereof, for which the same prem- ises shall have been granted by such new lease, by way of mortgage, for securing the repayment to the said [lessee], his executors, administrators, or assigns, of the principal sum or sums so advanced or paid, for such renewal fine and expenses of renewal as aforesaid, with interest thereon, after the rate of per centum per annum, and subject thereto, upon trust for the said [mortgagor], his executors, administrators, and assigns, according to his right and interest in the premises, to be com- prised in any such new lease. In witness, &c. NO. XX. Lease of a Cotton Mill, Machinery, and Gear, S^c.,for a term of Years, the Lessors to have the option of purchasing at the end of the term. This indenture, made the day of , in the year of parties. our Lord , between [lessors], of , of the one part, and [lessee], of , of the other part, witnesseth: That in consid- Testatum. eration of the rents and covenants hereinafter reserved and 66 662 APPENDIX. contained, and on the part of the said [lessee'], his executors, administrators, and assigns to be paid and performed, he, the said [lessor'], doth by these presents demise and lease unto the said Parcels. [lessee], his executors, administrators, and assigns, all that cotton-spinning mill, with the engine-house, steam-engine, boilers, machinery, running gear, fixtures, and other the appurtenances thereto respectively belonging, of him, the said [lessor], as the same premises are now used and let in the way of room and power, to the said [lessee] ; and also all those several buildings used and occupied by the said several occupiers of the said mill, as store-houses or otherwise, and all the vacant ground adjoin- ing or near the said premises ; and also all those twelve tenements or cottages, situate and adjoining near to the said mill, and now in the several occupations of , &c., or some or one of them ; all which premises are situate at or near , in the town of aforesaid, and are called or known by the name of The Lower Mill ; together with all houses, outhouses, edifices, buildings, roads, ways, paths, passages, watercourses, pumps, and wells of water, culverts, and especially the culvert or tunnel by which the said mill and engine are supplied with water from the adjoining brook or rivulet, easement, privileges, rights, members, and appurtenances whatsoever to the same premises, or any part thereof, belonging or appertaining, or now Exceptions used and occupied therewith. Except and always reserved out and right of of ^^^^ present demise unto the said [lessor], his heirs, and working. assigns, all mines of coal, iron, lead, or other minerals, and aU quarries of stone or slate, and beds of clay, within or under the said demised premises, with liberty for him and them, and his and their agents and workmen, at all times during this demise, to dig for, get, smelt, and work any such mine, minerals, quar- ries, and beds of clay, and to lead and carry away the same with carts and carriages over any part of the said demised premises, making reasonable compensation to the said [lessee], on pay- his executors, administrators, or assigns, or the damage he or ment for . , , . damage to they may thereby sustam ; and also saving and reserving unto a^rreserv- ^^^ ^^^^ [lessor], his heirs, or assigns, and his or their agent or '"t"^'^'"^ agents, the liberty of entering upon the said premises hereby mapectpre- demised, four times in the year, at seasonable times in the D11S6S> daytime, for the purpose of viewing the state and condition Habendum, thereof. To have and to hold the said mill, engine-house, steam- engine, machinery, running gear, fixtures, cottages, buildings, APPENDIX. 663 vacant ground, hereditaments, and all and singular other the premises hereby demised, or intended so to be, with their appurtenances, unto the said [lessee'], his executors, administrators, and assigns, from the — — day of last past, for the term of seven years thence next ensuing (subject to the payment of the yearly chief rent of , hereinafter particularly mentioned) ; Subject to yielding and paying therefor, yearly and every year during the &;c. said term (except only in case of fire, as hereinafter mentioned), ofgxedrent for and in respect of the said premises, unto the said [lessorl, his except in heirs, and assigns, the clear yearly rent of , of lawful money of , by four equal quarterly payments, on the twenty- quarterly. fourth day of June, the twenty-fourth day of September, the twenty-fourth day of December, and the twenty-fourth day of March, in each year ; the first payment to begin and be made on the twenty-fourth day of June now next ensuing. And the said Covenant [lessee], doth hereby, for himself, his heirs, executors, adminis- pay rent, trators, and assigns, covenant with the said [lessor], his heirs, gag^nf «™ and assigns, that he, the said [fessee], his executors, adminis- trators, or assigns shall and will, during the said term (except only in case of fire, as hereinafter mentioned), well and truly pay unto the said [lessor], his heirs, and assigns, the said yearly rent of , at the days and in manner hereinbefore appointed for payment thereof. And also that he or they shall and will. To pay chief over and besides the said yearly rent, during the said term, pay, ' satisfy, and discharge unto , of , his heirs, and assigns, the annual chief rent of , payable to him and them out of the said demised premises on the day of , in each year ; and also a certain outpayment, not exceeding annu- and a yearly ally, to be payable on the same day to Messrs. •, of , 5"™^*^,°;,^^ ,„^ bankers, or such other person or persons as shall be entitled to "^^ "f ™'" receive the same, for the privilege of passing and continuing the culvert or tunnel hereinbefore mentioned under or through their property to the said brook ; and shall and will save harm- less the said [lessor], his heirs, executors, administrators, and and indem- assigns from the same chief rent and outpayment respectively, therefrom, and from all suits and damages in consequence of the non-payment thereof respectively. And also that he, the said [lessee], his executors, administrators, or assigns shall and will from time to time, and at all times during this demise, pay, satisfy, and dis- charge all township, county, and other taxes, rates, duties, and assessments whatsoever, that shall be taxed, rated, assessed. 664 APPENDIX. charged, or imposed upon, or in respect of, the said premises hereby demised, or any part thereof, or the owners or occupiers To repair thereof. And also that he, the said [lessee'], his executors, cSfof &e; administrators, or assigns shall and will, at his and their own expense, during this demise, when and so often as occasion shall require (damage by accidental fire only excepted), substantially maintain, point, glaze, paint, amend, and keep the whole of the said cotton-mill, engine-house, engine, machinery, running gear, cottages, and premises hereby demised, and the roofs, windows, doors, and wood and iron work thereof respectively, and all and singular the outhouses, stables, gates, walls, fences, watercourses, roads, and appurtenances whatsoever thereto belonging, in good, and quietly substantial, and complete tenantable repair and condition ; and end of term, the same, SO painted, amended, and kept in such complete repair and condition (reasonable wear and tear only excepted), shall and will, at the expiration or the sooner determination of this demise, peaceably and quietly surrender and yield up unto the IcerS™*^ said [lessor], his heirs, or assigns. And also that he, the said sum in re- [lessee], his executors, administrators, or assigns shall and will, pau-s witJi- L J7 7 7 o in twelve within twelve months from the date hereof, lay out and expend the sum of , at the least, in substantial repairs of the said mill, to the satisf*:tion of the said [lessor], his heirs, or assigns ; and particularly shall and will paint the whole of the outside Proviso for .^poodwork of the said mill, as part of such repairs. Provided non-pay- always, that if it shall happen that the said yearly rent hereby ment of ^ . « rent, &c. reserved, or any part thereof, shall be behind by the space of twenty-one days next after any of the said days whereon the same ought to be paid as aforesaid, or if the said [Zes«ee], his execu- tors, administrators, or assigns, shall not, in all things, keep and observe all and every the covenants and agreements herein contained, on his or their part to be observed and kept, then it shall be lawful for the said [lessor], his heirs, or assigns, into and upon the said demised premises, or any part thereof in the name of the whole, to re-enter, and the same to have again, re- Lessee may possess^ and enjoy, as in their first and former state. Provided newly also, that if, during the continuance of this demise, the said erected en- gines at end [lessee], his executors, administrators, or assigns shall put up be paid for ^nd erect in and about the said mill and premises hereby de- them by jnised, any shafts, machinery, or fixtures, other than what are now there, and which are particularly mentioned and described in the schedule thereof indorsed on these presents, he or they APPENDIX. 665 shall be at liberty, on the expiration or other sooner determina- tion of this demise, either to remove the same (mailing good any damage to be occasioned by such removal), or at the option of the said [^lessor'], his heirs, or assigns, be paid by him or them such sums of money for the same as two indifferent persons, one to be chosen by each party, or their umpire, shall award and affix. Provided also, that unless the said [ZessorJ, his heirs, or assigns shall omit to give to the said [lesseej, his executors, ad- ministrators, or assigns, three calendar months' notice, in writing, previously to the expiration or other sooner determination of the said term (such notice to be left at the said mill), expressing his or their intent to become the purchaser or purchasers there- of, he or they shall be deemed to have declined such purchase. And the said [lessor'], doth hereby, for himself, his heirs, and Covenant assigns, covenant with the said [lessee], his executors, adminis- quiet en- trators, and assigns, that he or they, paying the rent and per- J"-'''"^" • forming the several covenants and agreements hereinbefore reserved and contained, and on his and their part to be paid and performed, shall and may peaceably and quietly have, hold, occupy, use, and enjoy the said premises hereby demised, with their appurtenances (especially the said culvert or tunnel for supplying the said mill with water), during the said term hereby granted, without any interruption, suit, or disturbance from or by the said [lessor], his heirs, or assigns, or any person or per- sons claiming or to claim by, from, through, or under him, them, or any of them. Provided always, and it is hereby further Proviso for declared and agreed, that in case the said mill, engine-house, ^^'^^^^fin steam-engine, machinery, fixtures, cottages, buildings, heredita- "'^^'^ °^ fi^^' ° ' •" ' ° ' ^ ' till premises ments, and all and singular other the premises hereinbefore restored by described, or any part or parts thereof, shall, at any time or times during the said term hereby granted, happen to be de- stroyed or damaged by fire, so as to render the same unfit for the spinning of cotton, or uninhabitable, then and in such case, the rent hereinbefore reserved for the same, or a just and pro- portional part thereof, according to the nature or extent of the injury sustained, shall be suspended or abated until the said premises shall have been rebuilt or repaired by the said [lessor], his heirs, or assigns, and be put in a fit state and condition for habitation, or for carrying on the spinning or manufacturing of cotton, for which the same demised premises are now used ; and in case of any dispute or difference -between the parties in- 56* 666 APPENDIX. terested therein, with respect to the time of such suspension, or the amount of such abatement respectively, the same shall, from time to time and at all times, be referred to the arbitrament and determination of three indifferent persons, to be named or chosen as aforesaid. In witness, &c. NO. XXI. Assignment of a Lease under Seal. This indenture, made the day of , in the year 1844, between C. D., of , merchant, of the first part, and E. F., of said city, merchant, of the second part. Whereas in and by a certain indenture of lease, bearing date the day of , in the year 1844, made between A. B., of , of the one part, and the said C. D. of the other part ; he, the said A. B., for the considerations therein mentioned, did grant, lease, &c., all that certain messuage, &c. To hold unto the said C. D., his executors, administrators, and assigns, from the day of , in the year 1844, for and during the whole term of years from thence next ensuing, and fully to be complete and ended, at and under the yearly rent of dollars, payable, &c., as in and by the said indenture of lease, on reference thereto, will more fully appear. Now this fndenture witnesseth that the said C. D., for and in consideration of the sum of dollars, lawful money of the United States, to him in hand paid by the said E. F., at or before the unsealing and delivery of these pres- ents, the receipt whereof is hereby acknowledged, hath granted, bargained, sold, assigned, transferred, and set over, and by these presents doth grant, bargain, sell, assign, transfer, and set over unto the said E. F., his executors, administrators, and assigns, all the said messuage or tenement and premises above mentioned, and every part and parcel thereof, with the appur- tenances ; and also all the estate, right, title, interest, term of years yet to come and unexpired, property, claim, and demand whatsoever of the said C. D., of, in, and to the same, and every part and parcel thereof, together with the said indenture of lease itself. To have and to hold the said messuage or tene- APPENDIX. 667 ment and premises above mentioned, and hereby granted and assigned, and every part and parcel thereof, with the appur- tenances, unto the said E. F., his executors, administrators, and assigns, for and during all the rest, residue, and remainder yet to come and unexpired of the said term of years in and by the said indenture of lease granted, in as full, large, and ample a manner, to all intents and purposes, as the said C. D., his executors, administrators, or. assigns now holds, or may at any time hold, and enjoy the same, by virtue of the said indenture of lease. Subject, nevertheless, to the several rents, covenants, conditions, and agreements in the said indenture of lease re- served and contained. In witness whereof, &c. NO. XXII. An Assignment of a Leasehold Interest, hj Deed-poll, indorsed on the Lease. Know all men by these presents, that I, the within-named C. D., for and in consideration of the sum of , of lawful money of the United States, to me in hand paid by G. F., of , gentleman, at or before the ensealing and delivery of these presents, the receipt whereof I do hereby acknowledge, have bargained, sold, set over, and assigned unto the said G. F., all and singular the messuage or tenement, yard, garden, coach- house, stables, outhouses, and hereditaments, in and by the within written indenture demised or mentioned so to be, with their appurtenances, and also all that small garden, at the end of and adjoining to the aforesaid garden, with the summer- house and mount, which were leased or agreed to be leased to me, by the within named A. B., by agreement between us, dated the day next before the date hereof, for twenty-one years, or such other term as is therein mentioned, at the yearly rent of , lawful money aforesaid, payable quarterly, that is to say, ■ , and also all my estate, right, title, interest, term of years, claim, and demand whatsoever, of, into, or out of the same messuage and other the premises, or any or either of them, or otherwise howsoever, together with the same indenture 668 APPENDIX. and agreement, and all the benefit thereof. To have and to hold the said messuage or tenement, buildings, garden, summer- house, mount, and other the premises hereby assigned or men- tioned so to be, with the appurtenances, unto the said G. F., his executors, administrators, and assigns, from henceforth, for all the now residue of the within mentioned term of twenty-one years, and of such other term or terms as I, the said C. D., now have or ought to have therein respectively, subject, nevertheless, to the rents, covenants, and agreements in the said indenture and agreement respectively reserved, and contained, and agreed ■ upon, and which, from henceforth, on the tenant's or lessee's part, are or ought to be paid, done, and performed. In witness whereof, &c. NO. XXIII. An Assignment of a Lease, by Indenture indorsed thereon. Parties, This indenture, made, &c., between H. H., of , &c., of the one part, and J. J., of , &c., of the other part, witues- seth : That for and in consideration of the sum of dollars of lawful money of the United States, to him, the said H. H., in hand paid by the said J. J., at or before the sealing and delivery of these presents, the receipt whereof the said H. assign, ji. doth hereby acknowledge, he, the said H. H., hath granted, bargained, sold, assigned, transferred, and set over, and by these presents doth grant, bargain, sell, assign, transfer, and set over unto the said J. J., his executors, administrators, and assigns, all that the within mentioned messuage or tenement, dweUing- house, and premises, together with the appurtenances thereunto term, belonging. And all the estate, right, title, interest, term, and terms of years jet to come and unexpired, use, trust, property, privilege, claim, and demand whatsoever, both at law and in equity of him, the said H. II., of, in, and to the same or any part thereof, together with the said indenture of lease. To have and to hold the said messuage or tenement, dwelling-house, and premises, and also the within indenture of lease, unto the said J. J., his executors, administrators, and assigns, from the day of now last past, for and during all the unexpired residue of the term APPENDIX. 669 of , by the within indenture of lease granted, free and clear of, and from all arrears of rent, rates, and taxes whatso- ever, up to the said day of last. But subject, subject to nevertheless, to the payment of the rent, and to the observance and cove- of all and singular the covenants, conditions, and agreements "i^^ig^gg therein reserved and contained. And the said H. H. doth hereby, for himself, his heirs, executors, and administrators, covenant, promise, and agree to and with the said .J. J., his executors, administrators, and assigns, in manner following (that is to say), that he, the said H. H., shall and will well and Assignor truly pay, or cause to be paid, all the rent, taxes, charges, rates, th^t i^g ^jix and assessments due in respect of the said premises hereby '^j?'^'^'?^ assigned, up to the day of last. And further, that &c., up to he, the said H. H., hath not at any time heretofore made, done, the assign- committed, or executed, or willingly permitted or suffered any jj^^t he lias act, deed, matter, or thing whatsoever, whereby the said within j^"' '?5JJ™" indenture of lease, messuage or tenement, dwelling-house, and estate, premises hereby assigned, oi any part thereof, are, is, can, shall, or may be impeached, charged, affected, or encumbered in title, charge, estate, or otherwise howsoever, and that for and notwithstanding any such act, deed, matter, or thing as afore- said, the said within written indenture of lease is a good and eifectual lease, valid in law ; and that the rent and covenants therein and thereby reserved and contained, have been hitherto well and truly paid, kept, and performed. And that for and and has notwithstanding any such act, deed, matter, or thing as afore- assign. said, he the said H. H., now hath in himself good right, full power and lawful and absolute authority to assign and assure the said premises hereinbefore mentioned, with the appurte- nances, unto the said J. J., his executors, administrators, and assigns, in manner aforesaid, and according to the true intent and meaning of these presents. And also that he, the said J. J., his executors, administrators, and assigns, shall and may from time to time, and at all times hereafter during all the rest, residue, and remainder of the said term of , peaceably and por quiet quietly have, hold, use, occupy, possess, and enjoy the said w as-""*^"' messuage or tenement, and dwelling-house and premises, with signee; the appurtenances hereby assigned ; and the rents, issues, and profits thereof, without the lawful . let, suit, trouble, denial, eviction, or interruption of or by him, the said H. H., his heirs, executors, or administrators, or any other person or 670 APPENDIX. persons lawfully claiming or to claim from, by, under, or in for further trust for him, them, or either of them. And further, that he, assurance. . , ^^ ^^ , . , . ■, ■ ■ i 1 1 j the said H. H., his heirs, executors, administrators, and all and every person or persons lawfully claiming or to claim from, by, under, or in trust for him, them, any, or either of them, shall and will from time to time, and at all times hereafter, upon every reasonable request, and at the costs and charges in the law of the said J. J., his executors, administrators, or assigns, make, do, and execute, or cause to be made, done, and exe- cuted, all such further and other lawful and reasonable acts, deeds, and things, assignments, and assurances in the law whatsoever ; for the further, better, and more perfect and absolute assigning, assuring, and confirming the said premises, with the appurtenances, unto the said J. J., his executors, admin- istrators, or assigns, for all the rest, residue, and remainder of the said term, as he or they, or his or their counsel in the law, Assignee shall reasonably advise and require. And the said J. J., for to pay rent; himself, his executors, administrators, and assigns, doth hereby covenant, promise, and agree to and with the said H. H., his heirs, executors, and administrators, in the manner following (that is to say), that he, the said J. J., his executors, adminis- trators, and assigns, shall and will, from time to time and at all times, from the day of , during the residue of the said term of years, well and truly pay, or cause to be paid, unto such person or persons as for the time being shall be entitled to receive the same, the yearly rent by the said inden- ture of lease reserved and made payable, and which from to perform thenceforth shall grow due. And also well and truly perform, nants in the fulfil) ^^^ keep all and singular the covenants, clauses, provisos, lease. ^^^ agreements in the said lease contained, and which, by and on the lessee's or assignee's part and behalf, is or are to be paid, observed, and performed from the said of . And also shall and will, from time to time and at all times, well and sufficiently save, defend, keep harmless and indemni- fied the said H. H., his executors, administrators, and assigns, from and against all costs, charges, damages, and expenses whatsoever, which they or any or either of them shall or may sustain, or become liable to, by reason or means of the said J. J., his executors, administrators, or assigns not paying all or any part of the said rent from time to time to become due, for or in respect of the said premises hereby assigned, from and after the APPENDIX. 671 said day of , or by reason or means of their not observ- ing and fulfilling all or any of the covenants, provisos, and agreements in the said within written indenture of lease reserved and contained, which, by and on the part of the said J. J., his executors, administrators, and assigns, are to be observed, per- formed, fulfilled, and kept from thenceforth. In witness whereof, &o. NO. XXIV. Assignment of the Wife's Term for Years hy the Husband. This indenture, made the day of , &c., between Parties. A. B., of , and F. his wife (before her marriage F. T.), of the one part, and C. D., of , of the other part. Whereas by an indenture, bearing date the day of , and made. Recites the or expressed to be made, between J. H., of the one part, and to the term, the said F. B. (then F. T.), of the other part; for the con- .siderations therein mentioned, the said J. H. did demise and lease unto the said F. B., her executors, administrators, and assigns, all that messuage, &c., with the appurtenances ; to hold the same unto the said F. B., her executors, administrators, and assigns, from the day of then last past, for and during the full end and term of ninety-nine years from thence next ensuing, and fully to be complete and ended, at, under, and subject to the rent, covenants, and agreements therein reserved and contained on the part of the said F. B., her executors, administrators, and assigns, to be paid, observed, per- formed, and kept ; and whereas the said A. B., with the privity and the con- tract of sale, and approbation of the said F. his wife, hath contracted and agreed with the said C. D. for the absolute sale to him, the said C. D., of the said messuage or tenement, and all and singular other the premises comprised in the aforesaid in part recited indenture of lease, for the residue now to come and unexpired of the said term of ninety-nine years, at or for the price or sum of . Now this indenture witnesseth : That in pursuance The consid- of the said agreement, and for and in consideration of the sum of ^^^ '"''■ , of lawful money of the United States, to the said A. B. in hand well and truly paid, by the said C. D., at or before the 6T2 APPENDIS. The assign- ment. Habendum. Covenants by the hus- band, that he and his wife had good right to assign. sealing and delivery of these presents (the receipt whereof he, the said A. B., doth hereby admit and acknowledge, and of and from the same, and every part thereof, doth acquit, release, and discharge the said C. D., his heirs, executors, administrators, and assigns forever, by these presents), and also for and in con- sideration of the sum of five dollars of like lawful money, to the said F. B. in hand well and truly paid by the said C. D., at or immediately before the sealing and delivery of these presents (the receipt whereof is hereby acknowledged) ; he, the said A. B., with the privity and approbation of the said F. his wife (testified by her being a party to and sealing and deliver- ing these presents), and also the said F. B. have, and each of them have bargained, sold, assigned, transferred, and set over, and by these presents do and each of them doth bargain, &c., unto the said C. D., bis executors, administrators, and assigns, the said messuage or tenement, and all and singular other the premises comprised in and demised by the said in part recited indenture, with their and every of their appurtenances, together with the said in part recited indenture, and the full benefit thereof. And all the estate, right, title, interest, term, and terms for years, property, possibility, claim, and demand what- soever, both at law and in equity, of them, the said A. B., and F. his wife, or either of them, of, in, to, or out of the same premises, or any part thereof. To have and to hold the said messuage or tenement, and all and singular other the premises hereby assigned or expressed, and intended so to be, with their appurtenances, unto the said C. D., his executors, administrators, and assigns, for and during all the residue and remainder now to come and unexpired of the said term of ninety-nine years, subject, nevertheless, to the payment of the rent, and to the performance and observance of the covenants and agreements in the said in part recited indenture reserved and contained, and which, from henceforth, on the lessees' or assignees' part and behalf, are and ought to be paid, observed, and performed. And the said A. B., for himself, his heirs, executors, and administrators, doth hereby covenant, promise, and agree with and to the said C. D., his executors, administrators, and assigns, by these presents, in manner follow- ing (that is to say), that for and notwithstanding any act, deed, matter, or thing whatsoever by him, the said A. B., or the said F. his wife, made, done, committed, or executed, or knowingly APPENDIX. 673 or willingly suffered to the contrary, the hereinbefore in part recited indenture of lease, at the time of the sealing and de- livery of these presents, is a good and effectual lease and de- mise in the law of the said premises therein comprised, and the said term of ninety-nine years is not forfeited, merged, extin- guished, surrendered, determined, or otherwise become void or voidable. And that for and notwithstanding any such act, deed, ^""" I""®' ° -^ enjoyment. matter, or thing whatsoever as aforesaid, he, the said A. B., and the said F. his wife, or one of them, now have or hath in them- selves, himself, or herself, good right, full power, and lawful and absolute authority to assign the premises hereby assigned, or expressed or intended so to be, with the appurtenances there- unto belonging, unto the said C. D., his executors, administra- tors, and assigns, for all the residue now to come of the said term of ninety-nine years in manner aforesaid, according to the true intent and meaning of these presents. And that it shall and may be lawful to and for the said C. D., liis executors,- ad- ministrators, and assigns, from tiiiie to time and at all times hereafter, during the said term of ninety-nine years, peaceably and quietly to enter into and upon, and to have, hold, occupy, possess, and enjoy the premises hereby assigned, or expressed and intended so to be, with their appurtenances, and to have, receive, and take the rents, issues, and profits thereof, and of every part thereof, to and for his and their own use and benefit, without the lawful let, suit, trouble, denial, eviction, interruption, claim, or demand whatsoever, of or by him, the said A. B., and the said F. his wife, or either of them, their or either of their executors or administrators, or by any other person or persons lawfully or equitably claiming or to claim by, from, or under or in trust for them, or any of them. And that free and clear, and forever discharged or otherwise by the said A. B., his heirs, executors, or administrators, well and sufiiciently saved, defended, kept harmless, and indemnified of, from, and against all estates, titles, troubles, charges, debts, and encum- brances whatsoever, either already had, made, executed, occa- sioned, or suffered, or hereafter to be had, made, executed, occasioned, or suffered by the said A. B., and F. his wife, or either of them, their or either of their executors or administra- tors, or by any person or persons lawfully or equitably claiming or to claim by, from, under, or in trust for them, or any of them. And further, that he, the said A. B., his executors and adminis- fs"uJ"nce'"^ 57 674 APPENDIX. trators, and all and every other persons or person having or claiming, or who shall or may have or claim any estate, right, title, interest, property, claim, or demand whatsoever, either at law or in equity, of, in, to, or out of the said premises hereby assigned, or expressed and intended so to be, or any of them, or any part thereof respectively, by, from, or under, or in trust for him, the said A. B., and F. his wife, or either of them, their or either of their executors, or administrators, shall and will from time to time, and at all times hereafter during the said term of ninety-nine years, upon every reasonable request to be made for that purpose, by and at the proper costs and charges in the law of the said C. D., his executors, administrators, or assigns, make, do, and execute, or cause and procure to be made, done, and executed, all and every such further and other lawful and reasonable acts, deeds, things, devices, assignments, and assurances in the law whatsoever, for the further, better, moi'e perfectly and absolutely assigning and assuring of the premises hereby assigned, or expressed and intended so to be, and every part thereof, with their appurtenances, unto the said C. D., his executors, administrators, and assigns, for the residue which shall be then to come of the said term of ninety-nine years, as by the said C. D., his executors, administrators, or assigns, or his or their counsel in the law shall be reasonably And for devised, or advised and required. And also that he, the said rent"and° ■^- ^-t ^'^ executors, or administrators, shall and wiH pay the perform- jg^j reserved by the aforesaid in part recited indenture of lease, ance of cov- '' ^ ^ ' enants up up to and including day now next ensuing, and shall and time. will keep indemnified the said C. D., his executors, administra- tors, and assigns, and his and their lands, tenements, goods, and chattels respectively, from the same rent, and from aU costs and expenses on account of the non-payment thereof, or on account of the breach or non-performance of any of the covenants or agreements in the said in part recited indenture on the part of the said F. B., her executors, administrators, or assigns, to be Covenants performed from the commencement thereof. And the said C. fOT paymmt ^-f ^°^^ hereby, for himself, his heirs, executors, administrators, of rent, and gjj^ assigns, covenant, promise, and agree with and to the said of covenants A. B., his executors, administrators, and assigns, that he, the after that • ^ /~t t^ , ■ t ■ ■ ■■. ,,, time. Said O. D., his executors, administrators, and assigns shall and will, at all times during the continuance of the said term of ninety-nine years, pay the yearly rent reserved by the aforesaid APPENDIX. 675 in part recited indenture of lease, from day of now next ensuing, and perform, fulfil, and keep all and every the covenants and agreements in the said indenture of lease contained, on the part of the tenant or lessee from henceforth to be per- formed, and from the same rent, covenants, and agreements, and all costs and expenses on account of any breach, neglect, or default of, or in payment or performance thereof as aforesaid, shall and will save harmless and keep indemnified the said A. B., and F. his wife, and each of them, their and each of their executors and administrators, and their lands, tenements, goods, and chattels respectively. In witness, &c. NO. XXV. Lease hy Husband and Wife, under a Poioer of Leasing. This indenture, made, &c., between E. H., of , and G-. Parties. his wife, of the one part, and C. B., of , of the other part, witnesseth : That pursuant to and in execution of a power to witnesseth, them, the said E. H., and G. his wife, for this purpose given or ^^^ to'Sie " limited, in and by a certain indenture of release, bearing date power, the day of , made between the said E. H. of the first part, the said G. H. (then G. P., spinster), of the second part, and C. D. of the third part (being the settlement made pre- viously to, and in contemplation of, the marriage then intended, and which was shortly afterwards duly had and solemnized be- tween the said E. H., and G. now his wife), and of every or any other power or authority, in anywise enabling them in this behalf, for and in consideration of the rents, covenants, and and in con- agreements hereinafter reserved and contained, on the part and ^f the'rent behalf of the said C. B., his executors, administrators, and as- ^^d "^o^^- . nanta, signs, to be paid, observed, and performed ; they, the said E. H., and G. his wife, do, by this indenture, limit, appoint, and demise limit, ap- unto the said C. B., his executors, administrators, and assigns, demise to all that, &c. (the parcels), together with aU and singular houses, t^epmcels. outhouses, tenements, hereditaments, and appurtenances whatso- ever to the said messuage and premises belonging, or in any- wise appertaining : To have and to hold all and singular the Habendum. 676 APPENDIX. premises hereinbefore limited, appointed, and demised, or in- tended so to be, with the appurtenances, unto the said C. B., his Forthe term executors, administrators, and assigns, for the term of twenty- of twenty- ' > o ' one years, one years, to be computed from the day of, &c., now last past, and thenceforth next ensuing, and fully to be complete and ended ; yielding and paying yearly, and every year during the said term, unto the person or persons for the time being entitled to the said premises, in reversion or remainder immediately ex- at tlie yearly pectant, on the said term of twenty-one years, the yearly rent dollars. or sum of $800, lawful money of the United States of America, by equal quarterly payments, on the first days of March, June, September, and December, in every year, without any deduc- tion or abatement whatsoever for or in respect of the land-tax, or any other present or future taxes, or any other matter or thing whatsoever ; the first quarterly payment of the said yearly rent to be made on the first day of March next ensuing the day Proviso for of the date of these presents ; provided always, nevertheless, ' and these presents are upon this express condition, that if the on nonpay- said yearly rent, or any part thereof, shall be in arrear after ment ot rent, J J J^ ' the same ought to be paid as aforesaid, or if the said C B., his executors, administrators, or assigns shall, at any time or times or by lee- during the continuance of this demise, transfer, or assign over, ment, "^ underlet, or agree to transfer, or assign over, or underlet to any person or persons whomsoever, the premises hereinbefore limited, appointed, or demised, or any part or parts thereof, for all or any part of the said term, without the license and consent, in writing, of the person or persons for the time being entitled as aforesaid, for that purpose first had and obtained ; or if the or becoming said C. B., his executors, administrators, or assigns shall become conipound- bankrupt, or shall compound his or their debts, or assign over mg debts, jjjg ^j. ^j^gjj. gg^^te and eflFects for payment thereof, or if any execution shall issue against him or them, or any of his or their efiects whatsoever, whereupon the said premises, or any part thereof shall be taken, or attempted to be taken in execution ; or if the said C. B., his executors, administrators, or assigns shall not, from time to time and at all times during the continu- or on breach ance of this demise, well and truly observe, perform, fulfil, and ofany cov- ,,,,., enants by keep all and Singular the covenants, conditions, and agreements which, on his and their part, are and ought to be observed, performed, fulfilled, and kept according to the true intent and meaning of these presents ; then, and in any of the said cases, APPENDIX. 677 it shall and may be lawful to and for the person or persons for the time being entitled as aforesaid, into and upon the said ap- pointed and demised premises, or any part thereof in the name of the whole, to enter, and the same to have, retain, possess, and enjoy, discharged from these presents, and the limitation, appointment, and demise intended to be hereby made as afore- said, any thing herein contained to the contrary thereof in any- wise notwithstanding. And the said C. B. doth hereby, for himself, his heirs, execu- Covenants tors, administrators, and assigns, covenant, promise, and agree ' with and to the person or persons for the time being entitled as aforesaid, in manner following, that is to say : tliat he, the said C. B., his executors, administrators, and assigns shall and will well and truly pay, or cause to be paid unto the person or per- sons for the time being entitled as aforesaid, the aforesaid yearly for payment rent of $800, on such days or times as are hereinbefore men- tioned and appointed for the payment thereof; and also shall and will well and truly pay, bear, and discharge the land-tax, and taxes ; and all other taxes, charges, duties, or assessments whatsoever, either already taxed, charged, assessed, or imposed, or at any time or times hereafter, during the continuance of this demise, to be taxed, charged, assessed, or imposed upon the said prem- ises, or any part or parts thereof, or upon the person or persons for the time being entitled as aforesaid in respect thereof, as landlord or landlords of the same premises, by any competent authority whatsoever. And also shall and will, at his and their own costs and ~ charges, well and substantially uphold, repair, support, and to repair maintain the said messuage or farm-house, and all the barns, stables, and out-buildings thereunto belonging, and all the glass windows, glazing, and lead-work of the same messuage or farm- house and premises ; and all locks, keys, hinges, bolts, bars, fix- tures, pumps, and the running gears thereof; and all gates, stiles, pales, posts, bridges, hedges, ditches, drains, watercourses and inward and outward fences of every kind, of or belonging to the said premises, or any part or parts thereof, at all times during the continuance of this demise, when need and occasion shall be or require, sufficient timber and fencing stufi" being sufficient found by the person or persons for the time being entitled as ^f timber- aforesaid, within a reasonable distance from the place or places where the same shall be required to be used, such timber and 67* 678 APPENDIX. fencing stuff to be cut and carried at the expense of the said C. B., his executors, administrators, or assigns ; and the same messuage, or farm-house, articles, things, and premises being so well and suflBciently upholden, repaired, supported, and main- and leave tained, shall and will peaceably and quietly leave, surrender, the same at ,.,, , ■•.iiixr -j the end of and yield up to the person or persons entitled to the said prem- ^th'^fa- ises, at the end of or sooner determination of the said term, hires; together with such fixtures, materials, and things as are now, or shall at any time or times during the continuance of this demise, be set up and affixed within, upon, or about the said premises hereinbefore limited, appointed, and demised, or any part or parts thereof (reasonable use or uses thereof, and accident by fire only excepted). not to assign And also that the said C. B., his executors, administrators, or underlet; or assigns, or any of them, shall not nor will, at any time or times during the continuance of this demise, transfer, assign over, or underlet to any person or persons whomsoever the said premises hereinbefore demised, or any part or parts thereof, for all or any part of the said term of years, without the license or consent, in writing, of the person or persons for the time being entitled as aforesaid, for that purpose first had and obtained. And also that he, the said C. B., his executors, administrators, and assigns shall not, nor will at any time or times during the plough up continuance of this demise, plough, dig, break, or convert into field; tillage or garden ground any of the fields, closes, pieces or parcels of meadow, pasture, and marsh lands, hereinbefore limited, appointed, and demised, or any part thereof respec- tively. mow the And also shall not, nor will during the continuance of this lands oftener . than once a demise, mow, or cause or suflTer to be mowed, the fields, closes, ' pieces or parcels of land hereinbefore demised, or any of them, or any part thereof respectively, more than once in a year during the three last years of this demise, nor permit or suffer the same, or any part thereof respectively, to be injured or damaged by heavy cattle during the continuance of this demise. And also shall and will so manage and cultivate the arable lands (parcel of the said premises hereinbefore limited, ap- pointed, and demised), at all times during the continuance of or take this demise, that no more than two successive ci'ops of com or two succcs- gi'aiii) and those two not of the same kind, shall be had or sive crops. [akgQ fj-gm off the same, or any part or parts thereof, without APPENDIX. 679 giving the same a clear summer fallow, or sowing the same with turnips in the ensuing year, atid with the next crop after such turnips, laying down the same land, in a hushand-like manner, with a sufficient quantity of sound clover and other grass seeds, and continuing the same so laid down two years, to be computed from the midsummer day next after sowing the same seeds. And also shall and will yearly, and every year during the To inn the said term, inbarn or stock on the said premises all the corn or the premi- grain which shall grow or arise therefrom, and there thrash the ^^^' same, and feed and fodder cattle, or otherwise spend or con- sume on the said premises all the straw, chaff, and clover and use the arising therefrom, and also all the hay and turnips that shall there,' ' grow or arise from or upon the said premises hereinbefore demised, except the winter straw that shall be wanted for with excep- thatching and daubing work ; also except half the hay and clover which shall arise in the last year of this demise, and the whole of the straw and chaff arising from the corn in the said last year, which half of the hay, and the entirety of which straw and chaff, shall be left upon the said premises, for the benefit of the person or persons for the time being entitled as aforesaid, or his, her, or their succeeding tenant or tenants of the said premises ; which hay, however, is to be so left upon Landlord the premises only for the purpose of giving an option to such ceeding person or persons, his, her, or their succeeding tenant or tenants, ][fa°™an'oD- so becoming the purchaser or purchasers thereof, at so much tion to pur- Cll«rS6 T-I16 money as the same shall be reasonably worth in the judgment hay left at of two judicious persons, one of them to be chosen by the said C. B., his executors, administrators, and assigns, and the other of them to be chosen by the person or persons taking the same ; and in case such two persons so chosen shall disagree as to the amount of such valuation, then the same shall be referred to the valuation of a third judicious person, to be chosen by the two first chosen, and the valuation to be made shall be binding and conclusive upon all the said parties. And also shall and will spend and lay, in a husband-like manner, where the same shall be most wanted, all and every the dung, manure, muck, and compost that shall arise and be Also to made during the continuance of this demise, from the hay, ^^ng^^^de straw, clover, and turnips that shall be so spent and consumed during the ' * . term on the on the said premises as aforesaid, except the dung, manure, premises, 680 APPENDIX. and so leave the Also to scour ditches and cut fences. Covenant by husband with lessee for quiet enjoyment. and compost that shall arise and be made therefrom in the last year of this demise, and during the time that shall elapse between the end of this demise and the first day of May then next ensuing, and shall and will turn in heaps and leave in the yard, or some other convenient part of the said premises hereinbefore limited, appointed, and demised, the dung, manure, muck, and compost so excepted as aforesaid, except such part thereof as shall be used for preparing turnips for the benefit of the person or persons for the time being entitled as aforesaid, or his or their succeeding tenant or tenants of the same premises, without any allowance being made to him or them, in respect of the same. And also that he, the said C. B., his executors, adminis- trators, or assigns shall and will yearly, and every year during the continuance of this demise, in a husband-like manner, cut, scour, or cause and procure to be cut and scoured yards of the fences and ditches upon such part of the arable land hereinbefore limited, appointed, and demised ; and roods of the fences and ditches upon such pai't of the marsh lands as shall most require cutting and scouring ; and do or cause to be done all such outhawking, danking, and planting necessary for that purpose, being allowed bushes, thorns, and other fencing, sufiicient, to be taken from the premises. And the said E. H. doth hereby, for himself, his heirs, executors, and administrators, covenant, promise, and agree with and to the said C. B., his executors, administrators, and assigns, that he, the said C. B., his executors, adminis- trators, and assigns, paying the said yearly rent of $800 hereinbefore reserved, as the same shall become due and payable, in the manner and form aforesaid, and well and truly observing, performing, fulfilling, and keeping all and singular the covenants aud agreements hereinbefore contained, on his and their parts to be observed, performed, fulfilled, and kept according to the true intent and meaning of these presents, shall or lawfully may, peaceably and quietly have, hold, use, occupy, possess, and enjoy all and singular the said messuage or farmhouse, and other premises hereinbefore limited, appointed, and demised, or ex- pressed and intended so to be, with their appurtenances, during the said term of twenty-one years, without the lawful let, suit, trouble, or hinderance of or by the person or persons for the time being entitled as aforesaid, or any person or persons whom- APPENDIX. 681 soever lawfully obtaining or to claim by, from, under, or in trust for such person or persons, or any of them. In witness, &c. NO. XXVI. Agreement for Lodgings. Memorandum of an agreement entered into this day of , 1804, by and between A. B., of, &c., and C. D., of, &c., whereby the said A. B. agrees to let, and the said C. D. agrees to take, the rooms or apartments following, that is to say : an entire first floor, and one room in the attic story or garrets, and a back-kitchen and cellar opposite, with the use of the yard for drying linen, or beating carpets or clothes, being part of a house and premises in which the said A. B. now resides, situate and being in . To have and to hold the said rooms or apartments, and the use of the said yard as aforesaid, for and during the term of half a year, to commence from next after the date hereof, at and for the yearly rent of of lawful money of the United States, payable monthly, by even and equal portions, the first payment to be made on next ensuing the date hereof; and it is further agreed that, at the expiration of the said term of half a year, the said C. D. may hold, occupy, and enjoy the said rooms and apart- ments, and have the use of the said yard as aforesaid, from month to month, for so long a time as the said C. D. and A. B. may and shall agree at the rent of for each month, and that each party be at liberty to quit possession on giving to the other a month's notice in writing. . And it is also further agreed between the said parties, that when the said C. D. shall quit the premises, he shall leave them in as good a condition and repair as they shall be in on his taking possession thereof, reasonable wear excepted. As witness, &c. 682 APPENDIX. NO. XXVII. Agreement for Ready-Furnished Lodgings. Memorandum of an agreement, entered into this day of — , in the year of our Lord , by and between A. B., of, &c., of the one part, and C. D., of, &c., of the other part, by which the said A. B. agrees to let to the said C. D. a room or apartment up one pair of stairs forward, in his, the said A. B.'s house, situate in Street, in the and county aforesaid, ready furnished ; together with the use and attendance of his servant, in common with the other lodgers. And also the use of a cellar, at the rent of of lawful money of the United States per month. And the said C D. agrees to take the said room or apartment, with the use of the servant and cellar as aforesaid, at the rent aforesaid, and also to find and provide for himself all manner of linen, and china or crockery ware what- soever, that he shall have occasion for, and that if he shall break or damage any part of the furniture of the said A. B. he wiU make good or repair the same, or pay him sufficient to enable the said A. B. to put the same in the same plight and condition as they now are in. And it is further agreed, that if either party shall quit or leave the premises, he shall respectively give to or take a month's notice, in writing, to be computed from the date of the said notice. As witness, &c. NO. xxvm. 1. Notice to quit by the Landlord to his Tenant from Tear to Year. Please to take notice, that you are hereby required to sur- render and deliver up possession of the house and lot known as number , in Street, in the city of New York, which you now hold of me, and to remave therefrom on the first day of May next, pursuant to the provisions of the statute relating to the rights and duties of landlord and tenant. Dated this day of , 1864. A. B., Landlord. To Mr. C. D., Tenant in possession of the premises above specified. APPENDIX. 683 2. Notice to quit hy the Tenant. Please to take notice, that on the first day of May next I shall quit possession, and remove from the premises I now occupy, known as house and lot number , in Street, in the city of New York. Dated this day of , 1864. Yours, &c., C. D. To Mr. A. B. 3. The Like, where the Commencement of the Tenancy is un- certain. Mr. C. D.: — I hereby give you notice to quit and deliver up, on the ■ day of next, the possession of the -messuage or dwelling- house \vr " rooms and apartments," or " farm-lands and prem- ises"], with the appurtenances, which you now hold of me, situate in the of , in the county of , provided your tenancy originally commenced at that time of the year ; or otherwise, that you quit and deliver up the possession of the said messuage, &c., at the end of the current year of your tenancy, which shall expire next after the end of one half-year from the time of your being served with this notice. Dated the day of 18—. Yours, &c., A. B. To Mr. C. D. 4. Notice to the Tenant, either to quit the Premises or pay Double Value. Sir: — I hereby give you notice to quit and yield up, on the • day of next, possession of the messuage, lands, tenements, and hereditaments, which you now hold of me, situate at , in the parish of , and county of , in failure whereof I shall require and insist upon double the value of the said prem- ises, according to the statute in such case made and provided. Dated this day of . Yours, &c., A. B. To C. D. 684 APPENDIX. 5. Notice to pay Rent, or surrender the Premises. Please to take notice, that you are indebted to me in the sum of dollars, for rent of the house and premises No. Street, in the city of , now occupied by you ; and that I require the payment of said rent on or before the day of instant {three days), or the possession of said premises. Dated this day of , 1864. A. B., Landlord. To Mr. C. D., Tenant. 6. Affidavit of Service of Notice. State of New York, county of Kings, ss. A. B., of the city of , being sworn, says that on the day of , 1865, he personally served a notice in writing, of which the annexed is a copy, upon C. D., of in said county, by delivering the same to him in person (or) by delivering the same to R. D. the wife of the said C. D., {or) to W. D. the son of the said C. D., a person of eighteen years of age and upwards, residing upon the premises mentioned in the said notice, {or) by aifixing the same upon the front door of the premises mentioned in the said notice, or other conspicuous part of the premises, there being no person to be found upon or residing upon the said premises at the time of such service. A. B. Swcfrn this day of ) , 1864, before me, J NO. XXIX. Surrender of a Term of Years. To all to whom these presents shall come, I, W. E., of , send greeting. Whereas, by indenture, &c. [recite the lease'], now know ye that I, the said W. E., in consideration of , to me in hand paid by A. B., &c. (the receipt, &c.), do hereby for me, my, &c., surrender and yield up, from the day of the date hereof, unto the said A. B., his, &c., the said indenture of lease, and APPENDIX. 685 all the messuage and premises aforesaid, and the term of years therein yet to come, with all my right, title, and interest thereto, and which I have or claim, or hereafter can or may have or claim, either by virtue of said indenture, or otherwise howso- ever ; and that free and clear, and freely and clearly, &c., [against encumbrances^. In witness, &c. NO. XXX. Surrender of a Lease for Lives. To all to whom these presents shall come, A. B., of , Parties. and C. his wife (before her marriage C. D., spinster), send greeting. Whereas W S , of , by an indenture of lease Eecites the under seal, bearing date the day of , did grant, de- terufed°to mise, and lease unto the said C. B., (then C. D., spinster), all ^ surren- that messuage, &c. (the parcels), to hold the same, with the appurtenances, unto the said C. B., her heirs, and assigns, from the day of • , for and during the natural lives of E. F. and I. K. and the life of the survivor or longer liver of them, at and under the yearly rents, and subject to the covenants and agreements therein reserved and contained, and on the part of the tenant or lessee to be paid, observed, and performed. And The death whereas the said E. F. hath departed this life ; and whereas "^g "fygj the said A. B., and C. his wife, being desirous of obtaining a agreement ' . ° to renew, renewal of the aforesaid lease, in consequence of the death of S to grant a new lease of the said demised premises, and the said E. F., have applied to and requested the said W which the said W S has agreed to do upon having the said recited indenture of lease, and the premises hereby de- mised, surrendered, and given up in manner hereinafter men- tioned ; and whereas by an order of the Court of Chancery, and the or- bearing date the day of , and made on the petition of ^^^^^ the said A. B., and C. now his wife, it is ordered (here recite recting the surrender. the order) ; Now these presents witness, that in pursuance of the aforesaid agreement, and in obedience to the aforesaid order, and for and in consideration of the sum of ten dollars of lawful 58 686 APPENDIS. Husband and wife surrender the demised premises and lease to the said W. S., to the in- tent that a new lease may be granted. money of the United States to the said A. B., and C. his wife, paid by the said W S , at or immediately before the seahng and delivery of these presents (the receipt whereof is hereby acknowledged), they, the said A. B., and C. his wife, have and each of them hath surrendered and yielded up, and by this present deed do and each of them doth surrender and yield up unto the said W S the said messuage or tenement and premises hereinbefore described, and comprised in the aforesaid in part recited indenture of lease, with the ap- purtenances ; and also the said recited indenture of lease. And aU the estate, right, title, interest, claim, and demand whatso- ever of them, the said A. B., and C. his wife, or either of them, of, in, to, and out of the same premises, and every part thereof. To the end that all the subsisting estate and interest under the said indenture of lease, of and in the said demised premises, may merge and be extinguished in the inheritance of the same premises, and to the intent and in confidence the said W S shall and do grant a new lease of the same premises, pursuant to the aforesaid order. In witness, &c. Sealed and delivered ) in the presence of J NO. XXXI. A Surrender for the purpose of a Merger, Indorsed. Parties. To all to whom these presents shall come, the within-named A. B., executor of the last will and testament of B., his late wife deceased, which said B. was formerly the wife and after- wards the widow and sole executrix named in the last will and testament of the within-named C. C, and D. D., and E. his wife, send greeting. Recites the Whereas the said D. D., and E. his wife, have agreed to pay surrendered, off and discharge the principal and interest due, and to grow due to the said A. B., as executor, as aforesaid, on the within written indenture, and the term of years in the premises herein comprised is intended shortly to be assigned and trans- ferred unto the said D. D., and E. his wife, or unto such person APPENDIX. 687 and persons, for such intents and purposes as he, the said D. D., and E. his wife, shall direct and appoint ; but previous thereto the said D. D., and E. his wife, are desirous of having the within-mentioned premises, and the within-mentioned term of years, assigned and surrendered to them, in order to merge the same in the freehold and inheritance of the same premises, and for that purpose have applied to the said A. B., who hath agreed to assign and surrender the same accordingly. Now these presents witness, that, in pursuance of such agree- Surrender ment, and for and in consideration of the sum of five shillings, that it may to the said A. B. in hand well and truly paid by the said D. D., "^'^S^- and E. his wife (the receipt whereof is hereby acknowledged), he, the said A. B., hath granted, surrendered, and yielded up, and doth hereby, &c., unto the said D. D., and E. his wife, her heirs, and assigns, all, &c., and premises comprised in the within written indenture, and therein mentioned to be hereby assigned to the said A. B., with their appurtenances, and all the estate, interest, use, trust, property, claim, and demand whatso- ever, either in law or in equity, of him, the said A. B., of, into, or out of the said hereditaments and premises, and to the said term of years, to the intent that the said term of years may be merged and extinguished in the freehold and in- heritance of the hereditaments and premises hereby surrendered or mentioned, or intended so to be, and the remainder now to come and unexpired of such term of years, of and in the premises assigned to the said A. B., may merge, and become determined, and utterly extinguished in the reversion, fee-simple, and inheritance of the same premises. [^Add a covenant from A. B. that he hath not encumbered.'} NO. xxxn. A Surrender of a Term (Part of the Leased Premises having been destroyed by Fire), Indorsed on the Lease. Whereas the within-mentioned messuage or tenement hath been lately burnt down and destroyed by fire, and the within- named A. hath requested the within-named B. and C. to sur- render to him, the said A-, the site or parcel of ground whereon 688 APPENDIX. the said messuage or tenement lately stood, for all the residue and remainder of the said term of years, by the said within written indenture granted therein, now to come and unexpired, to the intent that the same residue may merge and be extin- guished in the estate and interest of him, the said A., in the same premises respectively, which they, the said B. and C, have consented and agreed to do ; now these presents witness, that in compliance with the said request of the said A., and also for and in consideration of five shillings, to the said B. and C. paid by the said A. (the receipt, &c.), they, the said B. and C. have surrendered and yielded up, and by these pres- ents do, &c., unto the said A., his executors, administrators, and assigns, all that the said site, &c., and all the estate, &c. ; to have and to hold the said site, &c., and all and singular other the premises hereby surrendered and yielded up, or in- tended so to be, with their and every of their appurtenance, unto the said A., his executors, administrators, and assigns, from henceforth, for and during all the rest, residue, and remainder of the said term of years, by the said within written indenture granted therein, now to come and unexpired, to the intent and purpose that the same residue may merge and be extinguished in the estate and interest of him, the said A., in the said premises respectively, In witness, &c. NO. XXXIII. SUMMAEY PROCEEDINGS TO EEMOVE A TENANT. 1. Affidavit of Landlord to remove a Tenant holding over. State of New York, county of Kings, ss. : A. B., of the city of Brooklyn, being sworn, says, that, on the day of ■ 1863, he let and rented to C. D. the house and lot known as No. — , Street in said city, for the term of one year from the first day of May then next, and that said term has expired. And he further says, that the said C. D. (or E. F., the assignee or undertenant of the said C. D.) holds over, and continues in APPENDIX. 689 possession of the said premises, witliout the permission of this deponent, his landlord. Sworn, &c.^ A. B. 2. Affidavit when made h/ an Agent. State of New York, &c., ss. : G. H., of the city of Brooklyn, being sworn, says, he is the agent of A. B., the landlord of the premises hereinafter described, and is authorized to institute pro- ceedings for the removal of C. D. therefrom. That, on the day of , he, as the agent of the said A. B., let and rented, (&c., as in the former affidavit). 3. Affidavit where there has been a Change of Ownership. State of New York, &c., ss. : A. B. and C. D., both of the city of Brooklyn, being severally sworn, depose and say, and each for himself saith, and, first, the said A. B. saith, that, on the day of — — , he let and rented (or, as the agent of L. M., the then owner of the premises let and rented) the house and lot known as No. ■'—, Street in said city, to G. H., for the term of one year from the first day of May then next, and that said term has now expired. And the said C. D. for himself saith, that, on the day of (some day subsequent to the de- mise), the said L. M. sold and conveyed the said premises to this deponent (or that, at the time of the said letting, the said prem- ises were subject to a mortgage, and that proceedings were subse- quently taken to foreclose the said mortgage, and the premises were ordered, by the Court of , to be sold at auction by the sheriff of the county of Kings, who, on the ■ day of , sold and conveyed the same to this deponent), and that the said G. H., the tenant, (and J. K., his assignee or under- tenant), had due notice thereof, and that deponent is now the owner and landlord of the said premises ; and he further saith, that the said G. H. (or J. K., his assignee or undertenant) holds over, and continues in possession of the said premises, after the expiration of his term, without the permission of this deponent, his landlord. Sworn, &c. ♦ ' ' ' C. D. 1 To each aflSdavit must be af- usecJ again unless it is re-sworn and fixed a five-cent revenue stamp ; re-stamped. ■ Chitty v. Bishop, 4 and if the affidavit has been once J. B. Moore E. 413. used for any purpose, it cannot be 58* 690 APPENDIX. 4. Affidavit in Case of Tenancy at Will. State of New York, &c., ss. : A. B., of the city, &c., being sworn, says that, on or about the day of , 1864, he let and rented to C. D., during the will and pleasure of this deponent, the house and lot, &c., and that the said C. D. has held and occupied the said premises, as tenant at will to this deponent, from that period until the expiration of such tenancy, as herein- after mentioned (or that since the day of , in the year , C. D., of the same place, has held and occupied the house and lot in the of , on Street, where the said C. D. now resides, as the tenant of this deponent, and at his will, and without any certain time agreed on for the termination of said tenancy). And, he further says, that, on the day of , 1865, he caused to be served upon the said C. D., in due form of law, a notice in writing requiring the said C. D. to remove from the said premises, on or before the day of , 1865. That the time within which the said C. D. was so required to remove has expired, but that he still holds over, and continues in possession of the said premises, after the expiration of such time, without the permission of this deponent. Sworn, &c. A. B. 5. Affidavit in Case of Noii-paymerit of Rent. State of New York, &c., ss. : A. B., of the city, &c., being sworn, says that, on the day of , 1865, he let and rented to C. D. the house and lot known as No. — , Street, in the said city, for the term of two years from the first day of May last past, at an annual rent of dollars, payable quarterly on the usual quarter-days. That the said C. D. is now justly in- debted to this deponent in the sum of • dollars for the quar- ter's rent of said premises, which fell due on the first day of instant, pursuant to the terms of the agreement under which the said premises are held as aforesaid. That, on the day last mentioned, he, in due form of law, demanded the payment of the said quarter's rent of the said C. D. (or that he caused a notice in writing to be served upon the said C. D., in due form of law, on the day of , 1865, requiring the payment of the said rent to be made to this deponent on the day of instant (three days' notice), or the possession of the said APPENDIX. 691 premises), but that the said rent has not been paid, or any part thereof, and the said C. D. holds over, and continues in posses- sion of the said premises, after .default in the payment of such rent as aforesaid, and without the permission of this deponent. Sworn, &c.^ A. B. 6. Justices' Summons. To C. D., of , in the county of , and any other per- son in the possession or claiming the possession of the premises hereinafter described. Whereas, A. B., of , has made oath in writing, and pre- sented the same to me. That, &c. {here set forth the facts con- tained in the affidavit). Therefore you are hereby required forthwith to remove from the said premises, or show cause before me at my office, in the in said city, on the day of instant, at o'clock, a.m., why possession of the said premises should not be delivered to the said landlord. Witness my hand, this day of , 1865. J. Q. A., Justice. 7. Affidavit of the Service of the Summons. State of , county of , ss. : A. B., of , being sworn, says, that, on the day of , 1865, he personally served the within (or annexed) summons upon C. D., of , therein named, by delivering a true copy thereof to him in per- son, and at the same time showing him the original summons (or by leaving a copy thereof at the last or usual place of residence of the said C. D., with E. D., the wife of the said C. D. (or with E. D., the daughter of the said C. D., aged — years and up- wards) there residing, and showing her the original summons, and that, at the time of such service, the said C. D. was absent from his said place of residence (or by affixing a true copy thereof upon the outside of the front door of the dwelling-house on the premises described in said summons, the said C. D. being then absent from his last or usual place of residence, and there being no person of mature age residing thereon). Sworn, &c. A. B. 1 Bach .of these affidarits, 4 and affidavit of the person who served 5, should be accompanied with the the notice. 692 APPENDIX. 8. Warrant to put the Landlord in Possession. The People of the State of New York to the Sheriff of the county of Kings {or to any one of the constables of the town of ■ , or marshals of the city of , in the county of ), greeting : — Whereas A. B., of , made oath in writing and presented the same to me (reciting the facts contained in the affidavits). Whereupon I issued a summons, requiring the said C. D., and any other person in the possession or claiming the possession of the premises above described, forthwith to remove from the said premises, or show cause before me, at my office in the , on the day of instant, at o'clock, a.m., why the possession of said premises should not be delivered to the land- lord ; and no sufficient cause having been shown to the contrary, and I, being satisfied by due proof of the service of the said sum- mons, do therefore command you to remove all persons from the said premises, and to put the landlord, the said A. B., into the full possession thereof. Witness my hand, this ■— day of , 1865. J. Q. A., Justice, ^c. Or, if there has heen a trial, then, after the words, " should not he delivered to the landlord," add, instead of the concluding part of the above warrant, as follows: — And whereas the said C. D., by his affidavit filed with me, denied the facts, or some of them, upon which the said summons was issued, and thereupon the issue so joined was tried by me ; and, after hearing the evidence of the parties, I rendered a ver- dict in favor of the said A. B. (or before a jury duly nominated by me, and summoned for that purpose, who, after hearing the evidence of the parties, rendered a verdict in favor of the said A. B.), to wif, that the possession of the said premises should be delivered to the said A. B., whereupon judgment was rendered by me in favor of said A. B., against the said C. D., in pursu- ance of such decision or verdict that the possession of the said premises should be delivered to fhe said A. B. Now therefore you are hereby commanded to remove all persons from the said premises, and to put the landlord, the said A. B., into the full possession thereof. Witness my hand, this day of , 1865. J. Q. A., Justice, Sfc. APPENDIX. 693 9. Notice of Appeal from the Justices' Court. In Justices' Court. A. B., Eespondent, J against > Summaey Proceedings. C. D., Appellant. ) To A. B., above named, and to J. Q. A., Esq., Justice, ss. : Please to take notice, that I appeal to the County Court of the county of — =— , from the judgment rendered against me on the day of , 1865, before J. Q. A., Esq., in favor of the said A. B., under the provisions of the statute authorizing summary proceedings to recover the possession of land in certain cases, in which judgment costs were included, amounting to dollars, and that the grounds upon which said appeal is founded are as follows : — {state all the grounds of the appeal fully.) Dated, &c. Yours, &c., C. D. NO. XXXIV. IN PORCIBLE ENTRY AM) DETAINEE. 1. Tlie Complaint and Affidavit. To J. D., Esq., county Judge of Kings county : — T The complaint of A. B., of the city of Brooklyn, in the county of Kings, respectfully shows. That, on the day of , 1866, C. D., of said city, unlawfully made a forcible entry into and upon the lands and tenements of this complainant, situated in said city {or county), and particularly described as follows (here insert). That the said C. D. did then and there violently, for- cibly, and with strong hand, eject and expel this complainant from the said premises {or, hold the complainant out of the possession of the said premises). That, at the time above speci- fied, this complainant had and still has an estate of freehold {or for a term of years, &c.) in the said premises, and that the said C. D. still unlawfully and forcibly holds and detains the same from this complainant. Dated the day of , 1866. A. B. County of Kings, ss. : A. B., of said county, being sworn, says 694 APPENDIX. the foregoing complaint, by him subscribed, is true of his own knowledge. Sworn this day, &c. A. B. 2. Precept for a Jury. The People of the State of New Tork to the Sheriff, or to any Constable of the county of , greeting : You are hereby required to cause to come before me, at my office in , &c., on the day of • • instant, at o'clock in the forenoon, twenty-four inhabitants of the said county, duly qualified by law to serve as jurors, to inquire, upon their oaths, for the said people, of a certain forcible entry, made by C. D., as is said, into the lands and tenements of A. B., in the city of , in said county (or of a certain forcible holding out of possession of A. B. by C. D. of the lands and tenements of the said A. B., in the city, &c.), against the form of the statute in such case made and provided. Given under my hand this day of- , 1866. J. D., County Judge of Kings County. 3. Notice to the Defendant. To C. D., of , in the county of : You are hereby notified that A. B., of the city of , in the county of , has presented to me his complaint, accompanied by an affidavit duly verifying the same, stating that you did, on, &c. (here state the substance of the complaint), and that I have this day issued my precept, directed to the sheriff or to any con- stable of the said county, requiring him to cause to come before me, at my office, &c., on the day, &c., at o'clock in the forenoon, twenty-four inhabitants of the said county, duly qualified by law, to serve as jurors, to inquire, upon their oaths, of the forcible entry (or forcible holding out), as aforesaid. Dated this day of-; — , 1866. J. D., County Judge of Kings County. 4. Affidavit of Service of the Notice. County of Kings, ss. : H. D., of the city of Brooklyn, being sworn, says. That, on the day of , 1866, he personally APPENDIX. 695 served a notice in writing, of which the annexed is a copy, upon C. D., of , in the county of Kings, by delivering the same to him in person {or by delivering the same to A. D., the wife of the said C. D., on the premises described in the said notice, and that such service could not be made upon the said C. D., for the rea- son that, after diligent inquiry made by me, he could not be found, or by affixing the same on the front door of the house upon the premises described in said notice, there being no person of proper age on the premises ; and that such service could not be made upon the said C D., for the reason that, after diligent inquiry made by me, he could not be found). Sworn this day, &c. H. D. 5. The Inquisition. An inquisition taken before J. D., county Judge of Kings county, at his office in, &c., on, &c., by the oaths of B. D., &c. (insert the names of the jurors who concur'). The undersigned, inhabitants of the county of Kings, duly qualified to serve as jurors, having been summoned to inquire of the forcible entry (or holding out) hereinafter mentioned, and having appeared, at the time and place aforesaid, before the said county Judge, and having been by him duly sworn to inquire into the said forcible entry {or holding out) complained of by A. B. against C. D., and to make a true inquisition thereof, and having then and there proceeded to make inquiry, and examine witnesses on oath, then and there administered by the said county Judge, do now here make this their inquisition as follows, to wit : — The undersigned jury have found, and do hereby find and present, That A. B., of aforesaid, long since had an estate of freehold {or for a term of years, &c., as the fact may he) in that certain piece of land situate in the city of in the said county, described as follows {insert as in the complaint), and that he was long since peaceably and lawfully possessed of the same, and that such estate and possession of the said A. B. so subsisted and continued until C. D. of , on the day of , 1866, at aforesaid, did forcibly and unlawfully, and with strong hand, enter into the said land and premises, and eject and expel him, the said A. B., therefrom; and the said A. B., so expelled from the said land and premises from the day last aforesaid until the day of taking this inquisition, unlawfully 69 6 APPENDIX. and forcibly and with strong hand did keep out, and does yet keep out, to the great disturbance of the people of the State of , and contrary to the form of the statute in such case made and provided, and that the estate of the said A. B., as aforesaid, still subsists therein. And the jurors aforesaid do, on the evidence produced before them, find the inquisition aforesaid to be true. (^Signatures of jurors.) If the jurors should find that ike entry was made in a peaceable manner, and that, after such entry, the possession was held hy force, the itiquisition will be varied, so as to state the forcible holding- out, instead of the forcible entry. 6. Award of Restitution after Inquisition. The People of the State of New York, on the relation of A. B., C. D. The jury summoned and sworn to inquire into the forcible entry (or forcible detainer) complained of by A. B. against C. D., having made their inquisition, by which the said C. D. is found guilty of the said forcible entry (or detainer), and the defendant not having traversed the said inquisition within the time allowed by law, I, J. D., county Judge of the county of Kings, before whom the said proceeding is pending, do hereby award resti- tution to the said A. B. of the premises described in the said inquisition, and assess the costs and expenses ^ of the said pro- ceedings at the sum of dollars. J. D., County Judge. 7. Writ of Restitution. The People of the State of New York to the Sheriff, or to any constable of the county of Kings, greeting : Whereas A. B., of , in said county, did, on the day of , 1866, 1 The costs and expenses are the to perform the services. 6 How. fees of the officers who are rec[uired Pr. K. 173; 4 Hill, R. 541. APPENDIX. 697 made complaint to me in writing, duly verified, that C. D., on day of , &c., did {here recite the substance of the com- plaint, and state the subsequent proceedings). Now this is to command you to go to the premises aforesaid and cause the said C. D. to be restored and put into full possession of the said lands and premises ; and you are also to levy and collect the sum of dollars of the goods and chattels of the said C. D. (except- ing such goods and chattels as are by law exempt from levy and sale on execution), and to bring the money before me within sixty days from the receipt of this precept by you, to render to the said A. B. for his costs and charges herein Given under my hand this day of , 1866. J. D., County Judge of Kings County. 8. The Iraverse of Inquisition. The People, &c., on the relation of A. B., against C. D. And afterwards, to wit on the day of , at the city of , in the county of , before J. D., county Judge of the said county, comes the said C. D. in his proper person, and hav- ing heard the said inquisition read to hira, hereby traversing the same, denies that he is guilty of the said supposed forcible entry {or holding out), in manner and form as in the said inquisition alleged, and of this he put himself upon the country, and tha said people do the like {or after, " traversing the same," proceed thus), alleges that he or his ancestors, or those whose estate he has in the lands described in the said inquisition, have been in quiet possession thereof for the space of three whole years next before the said inquisition found, and that his interest therein is not yet ended or determined, and of this he puts himself on the country, and the said people do the like, &c.).' C. D. 9. Precept for the Jury to try the Traverse. The People, &c., to the Sheriff or any Constable, &c., greet- ing : You are hereby commanded to summon twelve good and 59 698 APPENDIX. lawful men of the town of , in said county, duly qualified to serve as jurors in courts of record, and not of kin to either A. B. or C. D., both of , in the county of , to come before the undersigned county Judge of county, at his office in , on the day of instant, at o'clock, a.m., of that day, to make a jury of the county, to try, upon their oaths, a certain traverse of an inquisition found, upon the complaint of the said A. B., against the said C. D., and now pending before me, for a certain forcible entry (or holding out) made by the said C D., into the lands and premises of the said A. B., against the form of the statute in such case made and provided ; and that you make a list of the persons summoned, and certify and annex the same to this precept, and make return hereof to me without delay. Given under my hand this day of , 1866. J. D., County Judge. 10. Award of Restitution after a Verdict. Title of the proceeding as hefore : The jury summoned to try and determine the forcible entry {or detainer) complained of by A. B. against C. D., upon the traverse of an inquisition found against the said C. D., having rendered their verdict, by which it appears that the said C. D. is found guilty of the said forcible entry (or detainer), I, the undersigned County Judge of the county of , before whom the said proceeding is pending, do hereby award restitution to the said A. B. of the premises described in the complaint, and do assess the costs and expenses of the proceedings at dollars. Dated, &c. J. D., County Judge, S^c. 11. The Writ of Restitution. {Is the same as before, reciting all the proceedings.) 12. A Certiorari to remove the Proceedings. The People of the State of New York to J. D., County Judge of the county of , greeting : Whereas we have understood, APPENDIX. 699 on the complaint of C. D., that lately before you a certain inqui- sition was found against him for {state the finding of the jury). And we, being willing that the said inquisition, and all other pro- ceedings concerning the same which remain before you, should be certified, and returned by you into our Supreme Court of Judicature, before our justices thereof, do command you that you certify and return the same to the justices of our said court, with all proceedings appertaining thereunto, at the next term of the said court to be held at on next ; so that our said justices may further act thereupon, as of right and according to law should be done ; and have you then there this writ. Witness J. W. G., Esq., Justice of the Supreme Court at , the day of . J. W., C. & S. Candit, Attorneys. Cleric. {Indorsed.) On the application of C. & S. Condit, attorneys for C. D., and upon his affidavit, I allow the within writ of cer- tiorari to issue. J. W. G., Justice of the Supreme Court. INDEX. [the eefekences are to the paeagkaphs.] A. ABATEMENT of nuisance, when aUowed § 208 to what extent it may be done 209 previous demand unnecessary 210 of rent, when allowed 386 ABATOR, who is 64 ABUSE OF DISTRESS 613 ACCEPTANCE of rent, creates a tenancy 60 when a waiver of notice to quit 485 forfeiture 497 of assignee, may discharge a lessee 438 of new lease, operates as a surrender 507 ACCIDENT, does not suspend rent 372 nor discharge liability to repair 367 . ACCIDENTAL EIRE, tenant not Kable for 196 ACKNOWLEDGMENT OF LEASE, when necessary 171 by married woman, how made 103 ACTION by tenants in common .*" 114 for injuries to the inheritance 173 by joint tenants 264 for double rent 630 against sheriff for not retaining rent 603 of debt for rent 615 for use and occupation 635 in equity for rent ; 656 of covenant 661 for waste ■ 686 of ejectment 698 to recover possession 718 for irregular or excessive distress 729 of replevin 739 59* 702 INDEX. ACTIONS— Continued. for trespass § ^64 of trespass on the case 769 affecting a reversionary interest 776 of trespass quare clausum fregit 777 vi et armis . 779 ACT OP GOD, when tenant excused by r- . . . 360 no relief as against an express covenant . 364 entitles tenant to emblements 535 ACTUAL ENTRY, on lands, how far necessary 68 (See Entry.) lessee cannot bring action before .... 178 by landlord on termination of lease . 624 use and occupation will not lie before 641 when unnecessary . 698 ADMmiSTRATOR, leases by 133 right of, to emblements 536 ADVERSE POSSESSION, invalidates a lease 84 what constitutes 86 ADVERTISING PREMISES FOR SALE, effect of 406 by landlord, no dissolution of tenancy 473 AFFIDAVIT to authorize distress 679 to claim rent of execution creditor 599 for summary proceedings 721 ' AGENT, leases by 137 when his authority to be recorded 137 when he exceeds his authority 138 in whose name to be made 139 when personally liable 140 form of execution of lease by 141 cannot take a lease from his principal 142 of joint tenants, notice to quit by 479 when must have previous authority 479 notice to quit when given by 480 AGREEMENT FOR A LEASE, what, and its effect 37 English legislation in respect to 37 how it differs from a present demise 38 effect of words of present demise 39 for more than a year to be in writing 28 when part performance sufficient 32 when enforced in equity 34 not executory, if there be words of present demise 39 or the estate is to vest over 41 or the terms are uncertain 42 general rule as to 4.3 what it should contain 44 with reference to usual covenants 45 when performance enforced 46 INDBS. 703 AGREEMENT FOR A LEASE — Continued. when not, or only in part § 48 must conform to the statute 49 if void, still fixes the rent to be paid 80 AGRICULTURAL FIXTURES 548 (See Fixtures.) ALIEN may take a lease 143 cannot make a lease 144 ALTERATION OF LEASE, effect of 165 by subsequently inserting name of lessee 149 AMBIGUITY construed in favor of lessee 81 ANIMALS to be kept within enclosure 186 waste in respect to 347 when distrainable 601 APPAREL wearing cannot be distrained --587 APPORTIONMENT OF RENT, when 383, 443, 679 none if tenant evicted 386i. except in case of a tenant for life 387 or of periodical payments 387 APPRAISEMENT after distraining, when to be made 609 APPURTENANCES, what are 161 what are not 162 when depending upon evidence 163 ASSESSMENT, covenant to pay 395 ASSIGN, covenant not to 402 what is a breach of .... 403 ' pre-emption right on 404 taking in a partner 405 depositing lease as security, no breach 406 when restricted to particular person 407 by operation of law, no breach of covenant 408 except otherwise agreed 409 discharged by license, though partial 410 unless it be stipulated to the contrary 410 when not discharged 411 breach of, when waived 412 not relieved in equity 413 ASSIGNMENT, how it differs from an underlease 16, 426 in fad to be in writing and stamped 427 in law, nature of 427 requisites of the former 428 transfer of an equitable interest does not amount to 429 cannot be under an older title 429 what interests may be assigned 430 what are understood to be usual covenants in 431 in law, what constitutes 432 when by marriage 432 devise 433 704 INDEX. ASSIGNMENT — Continued. when by executorship § 434 sale under execution 435 of premises mortgaged 465 for the benefit of creditors 456 consequences of 425 ASSIGNEE, nature of his title 436 bound only by covenants running with the land 437 of the reversion, entitled to the benefit of lessee's covenants . . 438 his title complete, -without an attornment 439 bound only to the extent of premises in his possession .... 440 ■without the aid of the statute 441 statutory provisions relating to 442 when chargeable pro tanto 443 not chargeable on mere collateral covenants 444 may have the benefit of all covenants running with the land . . . 445 of reversion, entitled to rents 446 when he may re-enter, for non-payment of rent 295 not unless right reserved by assignor . . . > 447 no privity, between him and under-tenant 448 not liable on lessee's covenants 448 liable only during occupation 449 actual entry by, unnecessary 450 but must accept the assignment 451 discharged from further liability, by assigning over . . . 452, 680 even if assignment be nominal 453 mortgagee not liable as assignee 455 in bankruptcy, when liable 456 effect of, on lessee's covenant 457 must elect in reasonable time 458 executor chargeable as assignee 459 when he is not 460 may discharge himself by assignment 461 liability of heir as assignee 462 of the reversion may sue for rent 616 ASSUMPSIT, for use and occupation 635 ASSURANCE, covenant for further 323 what constitutes breach of 824 when new lease to be executed 326 ATTORNEY, execution of lease by 139 ATTORNMENT, by tenant to a stranger void 180 when unnecessary 439, 621 AUCTIONEER, distress on goods in his hands 589 AVOWRY, what it is 753 and cognizance 755 AWAY-GOING CROP, when tenant entitled to 638 INDEX. 705 B. BAILIFF, warrant of distress to § 669 his authority to distrain 680 liability of landlord for his acts 678 acting for joint tenants 669 BALL-ROOM, when not a fixture 548 BANKRUPTCY bars suit for specific performance 47 forfeits covenant of renewal 337 effect of, on accruing rent 456 does not discharge rent to accrue 467, 662 BARN, when not a fixture 648 BARON AND FEME 101 (Sec Husband and Wife.) BEASTS OF THE PLOUGH privileged from distress 697 BILL OR NOTE does not extinguish rent 665 BLIND PERSON, lease by 98 BOARDERS, property of, not distrainable 695 BOND no satisfaction of rent 665 BOUNDARIES, how to be set forth 160 specified and artificial 163 imperfect, effect of 164 BOUNDARY TREES, may be lopped 190 BREACH OF AGREEMENT, bars a specific performance 47 ' BREAKING OPEN DOORS to take a distress 578 BUILDING after a certain pattern, covenant for 415 removal of adjoining 231 right of support from 231 risk of removal 232 support from adjoining 233 erected for purposes of trade 546 c. CANCELLING A LEASE no surrender .... * 511 CARE, what is ordinary 199, note CARELESSNESS in use of fire 196 or other lawM thing 197 in preventing accidents 198 no liability for, if mutual 1S9 CARRIER, goods in his possession, not distrainable 619 CATTLE, owner bound to keep them at home 183 trespasses by 184 when distrainable for rent 697 706 INDEX. CHATTELS, may be leased §18 real, husband's right to wife's 101 CHIMNEY-PrECES, when fixtures 547 COLLATERAL COVENANTS do not run with the land 260 COMMENCEMENT OE LEASE, when 68 when payment of rent is evidence of 69 lease void for uncertainty in 70 when on a future event 73 when from day of date 78 COMMITTEE OF LUNATIC, leases by 136 COMMONS, what is meant by 218 when appendant or appurtenant . 219 cannot be apportioned 220 CONTINUANCE OF LEASE, wlen optional 81 in the city of New York 77 first day excluded 78 when lease void for uncertainty in 75 when agent exceeds his power 83 CONDITION IN LAW AND IN DEED 271 how it may be created ... . . 272 how it diifers from a limitation 273 what implied in the relation of landlord and tenant 274: when precedent or subsequent . . 275 does not depend upon words 276 precedent, construed liberally 277 by what words created 278 implied in a proviso 279 when to be annexed to the estate ... 280 impossible, effect of 281 personal disability does not excuse performance 282 illegal or contrary to public policy . 283 repugnant to the grant 284 pre-emptive right on alienation 285 effect of license on 286 forfeiture of, how waived 287 when defeasible by actual entry 288 when it renders a lease void or voidable 288 substantial performance of, sufficient 289 of re-entry on breach of 290 effect of 291 operates only during term 292 to whom reserved 293 will nm with the land 294 who may take advantage of 295 when by assignee of reversion 296 not by assignee of part 296 when demand necessary 297 no actual entry required 298 INDEX. 707 CONDITION IN LAW AND IN BEmi — Continued. how when, no sufficient distress on premises § 299 no re-entry, unless expressly reserved 800 when previous notice required 301 effect of re-entry clause 302 when mortgagee may redeem 303 lessor entering avoids all encumbrances 303 not apportionable 296 nor impKed as to state of premises 381 CONFIRMATION OF LEASE, by infant 94 of husband's lease, by wife 102 CONSERVATORY, when a trade fixture 646 CONSIDERATION, sufficient, must appear in lease 162 what illegal . ." 153 CONSTRUCTION, general rules for 160, note CO-PARTNERS, leases by 117 CORN, when distrainable 692 CORPORATION, leases by 126 how it may act, and by what name 127 when by board of directors 128 may become lessee 128 effect of its seal, and how affixed 129 CO-TENANT, rights of ■ 114, 179 leases by 115 co-partners are not co-tenants 117 liability for repairs 367 COUNTRY, custom of, effect of 640 COUNTERPART OF LEASE, what 146 COVENANT, action of, when it lies 661 when by assignee of the reversion .^ 662 for unliquidated damages 663 in whose name to be brought 664 how far assignee liable to 665 by one interested in deed-poll, though not named 665 when by an heir or executor 666 against whom it lies 668 the legal representatives of covenantor 669 what declaration should contain 670 practice, when covenant is under penalty 671 assignment of specific breaches 672 for liquidated damages ... 673 how breaches to be assigned ... 674 what damages recoverable 675 general issue in 676 plea of eviction 677 statement of paramount title 678 apportionment of rent in 679 assignment before breach 680 708 INDEX. COVENANT — Continued. payment, must be involuntary ' . § 618 what cannot be set off 682 plea of non damnificatus 683 whether assignee or not 684 relief in equity 685 COVENANTS, what are usual between lessor and lessee 45 assignor and assignee .... 431 advantage of, under a penalty 671 definition of 245 when express 246 by what words 247 may be in any part of the deed 247 may be in form of an exception 248 recital 249 proviso 250 license 251 the word agreed, or its equivalent, essential 260 rules of construction 246, notes implied, nature of 252 may be qualified 253 restricted 255 distinctions between express and implied covenants 264 importance of these distinctions 256 when none implied in New York 267 how they arise under a deed-poll 258 lessee not bound unless he signs 269 when they run with the land 260, 444 when collateral merely 261 what run with the land 262 when they are personal 263 divisible 263 joint or several 264 dependent or independent 265 void or illegal 266 contrary to public policy * 267 hard or oppressive . 268 how discharged or suspended 269 effect of tearing off seals 270 implied, to be liberally construed 256 on the part of the lessor for quiet enjoyment 304 against encumbrances 318 for further assurance 323 to make repairs 327 to renew the lease 332 to pay taxes and assessments 341 on the part of the lessee to make repairs 34.3 pay rent 359 INDEX. 709 COVENANTS — Coniinued. on the part of the lessee to pay taxes and assessments §395 to insure 400 not to assign 402 to reside on the premises 414 to build after a certain pattern .... 416 against carrying on trades 416 for particular mode of cultivation . . . 420 to redeliver fixtures 424 CROPS, when distrainable 592 rights to away-going 538 injunction to prevent removal of 691 (^And see Emblements.) CTJLTIVATIOlSr, covenant for particular modes of 420 when implied 421 how far sustained in equity 422 when it runs with the land 423 rights of landlord with respect to 421 effect of custom on 641 CURTESY, tenant by the leases of 101 waste by 692 CUSTOM, how far it regulates an agreement 638 as to away-going crops 640 effect of, as to fixtures 564 in determining a question of waste 360 D. DAMAGES, measure of. (See tJie particular covenants.') DATE OF LEASE, how far immaterial 148 effect of a reference to, in lease 148 how to day of date ' 160 insertion of an impossible date, effect ot 71 DAYTIME, distress must be taken in 573 DEAE AND DUMB PEltSON, lease by 98 DEATH OF LESSOR, effect of 459 LESSEE, effect of 460 DEBT FOR RENT, action of 615 is the proper remedy against assignee of a term 616 or against a lessee who enters tortiously 617 when for use and occupation generally 618 lies against tenant for life, years, or at will 619 although he may have assigned 620 not against lessee, after acceptance of rent from assignee . . . 621 against assignee, only concurrently with his interest 621 against tenant by sufferance, for double rent 622 holding over after notice 623 60 710 INDBS. DEBT FOR 'KENT— Continued. deed need not be declared on § 624 or mesne assignments set out 624 unless in suit by assignee of the reversion 624 when local, or transitory 625 how laid against an executor . . 626 special pleas in this action 627 when set-off not allowed . 631 unless by way of payment 631 when mortgagee may maintain 632 plea of tender in 633 DEED, when required for a demise 34, 146 for an assignment 427 for a surrender 609 how executed by an agent ....... 139 indenture and deed poll . . 147 takes effect from delivery . . 167 effect of registering 168 poll, action on 665 commencement of term on delivery of 68 DEDUCTIONS FROM RENT, when made 374 OF TAX from rent 396 DELIVERY OF DEED, what constitutes 167 presence of lessee not necessary for 168 when in escrow 169 DEMAND OF RENT to estabUsh a forfeiture 297, 493 when a waiver of forfeiture 498 of notice to quit . . . . 485 DEMISE, what property the subject of 17 of live-stock 18 when by implication .... 19 by express agreement 26 to be in writing 27 by possession g2 under seal 34 how it differs from an agreement gg possession necessary to 85 when by a disseizor g^ infant 93 married woman Iqj^ joint tenants Ij^^ tenant for years IQg mortgagor and mortgagee 118 corporations j26 agents and attorneys I37 executors and guardians I33 aliens j^^g proper words of j^gg INDEX. 711 DENIZEN may make leases § 145 DESCRIPTION OF PREMISES 160 if general, incident passes 161 appurtenances follow 163 imperfections in effect of 164 DESERTION OF PREMISES, how landlord may enter on 714 DESTRUCTION OF PREMISES, avoids the lease 520 DETERMINATION OF TENANCY, by lapse of time 465 by notice to quit 466 forfeiture 485 merger' .... 602 surrender 607 taldng premises for public use 619 destruction of building 520 becoming house of ill fame 621 tenant's disclaimer 522 rights of tenant on 523 landlord on 631 DEVISEE, when bound by lessor's covenants 433 entitled to the benefit of covenants 433 DISABILITY, personal, does not excuse performance 282 DISSOLUTION OF TENANCY, various modes of 464 consequences of 523 ■ DISCLAIMER BY TENANT, when it forfeits his term 522 DISSEISIN, what 84 when it avoids lease 519 DISTRESS FOR -RENT, history and policy of 556 nature of the remedy /N^ 657 in what States it prevails .\ 568 incident to every species of rent 569 amount of rent must be fixed with certainty 661 lies only upon an actual demise 662 right not extinguished by a note, or judgment for rent 566 no previous demand necessary 666 in whose name to be made 667 when by assignee of reversion 668 joint tenants 569 after removal of goods from premises 572 such removal must be fraudulent 676 and not after a bona fide sale or mortgage 577 mortgagee may distrain at common law 571 otherwise in New York 571 at what time may be made 573 not after a tender 673 separate distresses, on several demises 674 in what place may be taken 674 how entry on the premises to be made 578 by whom conducted 579 712 INDEX. DISTRESS FOR B^'NT — Continued. affidavit to be made § ^' " landlord's warrant "°" for what amount of rent ^ol cannot include interest "°J- inventory to be taken ^"2 what goods distrainable "8>' goods not the property of the tenant 584 goods exempt by statute 685 privileged conditionally 597 which cannot be identified 586 privileged for the benefit of trade 587 on deposit 688 with a common carrier 689 things ferce naturcB 591 fixtures 692 goods sold, but remaining on the premises 593 in custody of the law 694 a receiver 695 things in actual use 687 wearing apparel ... 587 goods of boarders at hotels .... 695 public ambassadors 596 cattle of stranger on premises 597 goods taken in execution 598 notice of affidavit to sheriff in this case L 699 sheriff to retain a year's rent thereon 600 how far the Hen extends 601 not as against an under-tenant 602 officer's liabOity in this case 603 how to be proceeded against 603 proceedings, if tenant denies rent to be due 604 how goods to be disposed of 605 cattle to be impounded 606 notice to tenant 607 pound-breach and rescue 606 cannot be used 608 liability, if distress be injured 609 appraisement and sale of goods 610 fraudulent removal of goods 611 search warrant for 612 liability for irregular distress 613 for wrongful distress 729 not for a mere irregularity 737 not liable for trespass, ah initio 614 DISTURBANCE, what amounts to 313 what will amount to a nuisance 211 must be of a substantial character 388 INDBX. 713 DISTURBANCE — Continued. remedies of tenant for § 178 DIVISION FENCES 183 when may be removed 187 trees growing in 190 DOGr, trespass by 186 vicious, on premises 195 DOOR, outer, not to be broken on distraining 678 except for goods fraudulently removed 611 DOUBLE RENT, tenant holdiag over liable for 624 demand and notice necessary 526 when notice to be given 628 waived 528 consequence of notice given by tenant 529 verbal notice by tenant sufficient 629 DRUNKARD, lease by, when void 100 DUMB PERSON, lease by 98 DURATION OF LEASE, how ascertained 74 when uncertainty renders lease void 75 how rendered certain 76 with reference to matter ex pod facto 77 when optional 81 so long as both parties please 82 when lessor exceeds his own interest 83 DURESS, lease under / . 99 DWELLING, or mansion house, what is 67 B. EASEMENTS, what are attached to a tenancy 212 how created 237 assigned 238 extinguished 239 effect of disuse 240 encroachment on 241 when by prescription 243 EJECTMENT, when by lessor 698 against whom, and for what property 699 when for covenant broken 700 when notice to quit must be given 702 by a mortgagee 703 how premises to be described 704 landlord need not show title in 705 proof of lease necessary 706 if lessor's interest has expired 707 relief against, in favor of a tenant 708 by bUl in equity 709 60* 714 INDEX. EJECTMENT — Continued. action for mesne profits § 710 against whom, for sucla profits 7H how issue in to be tried 712 (See Summary Proceedings.) EMBLEMENTS, what, and who entitled to 534 out of what property may be claimed 534 when lease terminated by act of law 635 none, if termination of lease is certain ^ 635 when under-tenant entitled to 636 in favor of trade 636 no compensation for ploughing 637 tenant for years not entitled to 538 except by custom 539 effect of usage in respect to . 640 as to removal of manure .... 641 when outgoing tenant entitled to 542 when he loses his improvements 543 ENCROACHMENT may be abated 101 effect of upon a right of way 241 ENCUMBRANCES, covenant against 318 tenant for hfe, bound to keep down 318 outstanding claim, a breach 319 to what act it extends 319 prior mortgage, a breach before eviction 320 the rule of damages on .~ 822 ENTRY, necessity of, by lessee . . . . , 68, 176 lessee's right of 291 by lessor, when no discharge of rent 389 (And see Re-entrt.) landlord's right of, on termination of lease 524 EQUITY, will restrain breach of covenant 685 will prevent waste 690 grant specific performance 46 when refuse to direct renewal 337 relief, in case of forfeiture 495 suit in, for rent, in case of uncertainty 656 against cestui que trust 657 or of mutual accounts 658 when against under-tenant 659 or as to mesne profits 660 EQUITABLE MORTGAGEE, not Uable for covenants 428 ESCHEAT of alien's property 143 ESCROW, what constitutes 169 ESTATE FOR LIFE, how created 61 must commence in prasenti 62 for years, miay commence in futuro 68 ESTOPPEL, lease by 87 INDEX. 715 ESTOPPEL — Contimied. effect of recitals in creating § 88 acceptance of lease 89 must be reciprocal 90 who bound by 91 general principles of 91, note when by matter in pais 92 prevents tenant disputing title "629-705 ESTOVERS, when right to extinguished 220 cannot be apportioned 219 who entitled to take 350 must be reasonable 351 EVICTION, suspends rent 378 even out of part, if by lessor 379, 649 lessor's guaranty against 378 is a defence to an action for rent 627 plea of in action of covenant 677 by title paramount, rent apportioned 378 when by landlord's immoral conduct 380 though not continued, discharges rent 386 if during the quarter no rent due 387 what will amount to 388 covenant against, how broken 308 damages for 317 EXCAVATIONS, damage from 233 (And see QmsT Enjoyment.) EXCEPTIONS AND RESERVATIONS in a lease 157 difference between 158 EXCESSIVE DISTRESS, action for 729 EXECUTION, term may be sold under 176 of a lease, what 166 when it takes effect 167 in escrow 169 complete without witness 170 how it affects the right of distress 600 EXECUTOR AND ADMINISTRATOR, leases by 133 one may execute 133 when may be avoided 134 when he takes a term of years 434 how far chargeable with rent 459 when he may waive lease 461 what covenants entitled to 460 when entitled to rent 390 emblements 536 distrain 670 of lessee, what covenants entitled to 459 bound by . . . ■ 460 liable for rent 620 716 INDEX. EXECUTOR — Continued. when liable for waste by testator § 689 EXPIRATION OP TEISTAlSrCY, tenant's duties on 524 his rights on 533 EXPRESS TENANCY, what amounts to 26 EXTmCUISHMENT OF EASEMENTS 239 of rent, when by eviction 886 P. FACTOR, goods of his principal not distrainable 587 FARMING LEASES, restrictions on 420 FEME COVERT, leases by 101 (See Married Women.) FEE-SIMPLE, reservation of rent on 870 FENCE -VIEWERS, office of 184 FENCES, division, how far tenant bound to support 183 damages for not repairing 184 who bound to make 185 trespass by animals escaping from enclosure 186 when they may be removed 187 consequences of a premature removal of 187 FINES, on alienation of lease .... 404 FIRE, tenant liable for careless use of 196 not for accidental 196 nor to rebuild, in case of 343 except under covenant . 357 no suspension of rent 375 lessor not liable to rebuild in case of 329 FISBCERY, common of, may be leased 17 what is 221 confined to fresh water 222 may be regulated by statute law 222 none in navigable stream .... 223 FIXTURES, covenant to redeliver 424 what are at common law ... 544 trade fixtures when removable 545 extends to houses 546 gardeners and nurserymen 546 domestic fixtures and ornaments * 547 agricultural, not removable 543 mere personal chattels, not fixtures 543 may be mortgaged and sold 549 regulated by local customs 549 can only be removed before the end of the term 650 or during the tenant's posticss.on 55I freehold must not be injured by removal 650 INDEX. 717 FIXTURES — Continued. when tenant's right to not abandoned § 552 landlord entitled to 553 how far regulated by custom 554 not distrainable 592 FORCIBLE ENTRY AND DETAINER, general doctrine of . . . 786 what amounts to 787 as to vacant premises 788 to whom complaint to be made 789 how made, and what allegations necessary 790 proceedings thereupon 791 title of relator not to be questioned 792 award of restitution 793 certiorari and appeal 793 indictment for 794 FORFEITURE, general doctrine of 488 what amounts to 489 when by commission of waste 490 breach of condition indivisible 491 lease voidable only at the election of lessor 492 when for non-payment of rent 493 when demand of rent necessary 297, 494 relief from, in case of non-payment 495 no relief for breach of any other covenant 496 nor for a wilful neglect 496 what amounts to a waiver of 497 how waived on breach of condition 287 no waiver, if cause of forfeiture continues 600 re-entry for subsequent breach 501 FORTHWITH, meaning of in covenant to repair 361 FRAUDS, what demises within the statute of 28 lease obtained by, void 98 assignments within this statute 427 FRAUDULENT removal of goods 611 FROM THE DAY of date, meaning of 78 FRUIT falling over line fence, may be retaken 191 FURNISHED APAETMENTS, no imphed condition on letting of . . 381 FURNITURE may be leased 18 FURTHER assurance, covenant for 323 will cover subs.equently acquired title 324 extends only to reasonable acts 325 when deed to be executed 326 what constitutes breach of 324 FUTURE interest, lease of .' 85 effect of a stipulation for 37 718 INDES. G. GAEDEN, passes with lease of house § 161 GARDENERS, when tenants, may remove trees, &o 546 GOOD-WILL of a lease, what 332, 336 GRANT, what passes under 161 construed most strongly against grantor 251 GRANTEE of the reversion, rights of 439 can sue for breach in his time only 445 (And see Assignee.) GUARDLAN, leases by, and their duration 135 GROUND-RENT, if under-tenant pays may deduct 395 GROWING CROPS, who entitled to 638 (See Crops.) H. HEDGE, rights of adjoining parties in 191 HEIR of lessor, what covenants bound by 462 descend to . . ' 463 of lessee, what covenants bound by 462 descend to 463 HEREDITAMENTS, leases of 17 rent cannot issue from 369. HIGHWAY, tenant must not encumber 193 cattle not allowed upon 183 grass on, to whom it belongs 186 HOLDING OVER, when upon terms of original demise 58 consequences of, by tenant, or under-tenant 524 statutory penalty upon 525 what notice required to be given by landlord 626 to whom given 627 when notice to be given 628 after notice has been given by tenant ' 529 liability for special damages 630 of trustees and guardians 630 when landlord may re-enter 631 when under authority in fact 632 how far tenant justifiable in 633 HOTEL, boarding at, no tenancy 24 HUSBAND and wife, leases by 101 when voidable at common law 102 not in the United States 103 must be by deed 103 HUSBANDRY, good, what requisite to 544 INDEX. 719 ICE is property, and its taldng may be regulated § 220, note IDIOTS, leases by 97 binding, if no advantage taken of 98 ILLEGAL condition, effect of 283 IMPLIED TEjSrA]NCY, when 19 covenant, -what 257 conditions, effect of 274 IMPOSSIBLE condition, effect of 281 IMPOUNDING CATTLE, when 605 effect of tender of rent, before . 606 who must provide food for 605 IMPEACHMENT of waste, what 355 IMPROVEMENTS, what constitute 524 INCOMING TENANT, privUeges of ... . 542 {See Custom.) INCORPOREAL HEREDITAMENTS 178 INDEMNITY, when under-tenant entitled to 110 when lessee entitled to 448 INDENTURE, formal parts of 146 differs from deed-poU 147 date of, unimportant 148 names of parties 149 recitals in effect of 150 reservation of rent in 152 exceptions, object of 157 words of demise 159 description of premises 160 INDORSEMENT, when part of deed 164 on lease, effect of 164 INDICTMENT, for forcible entry or detainer 794 INFANCY, defence to an action for rent 628 INFANT, leases by, voidable only 93 ratification of 94 disaflarmance of 95 leases to 96 INJUNCTION, against waste 691 bad husbandry 422, 692 general damage 693 erecting a nuisance 208 in note, 418 not granted on uncertain grounds 695 INN, no distress' of goods at 687 INSANE PERSONS, leases by 97 mere weakness does not invalidate 98 INSOLVENCY, when a forfeiture of lease 337 720 INDEX. INSOLVENCY — Continued. when a bar to specific performance § 49 effect of, on lessee's covenants ■*°' INSURE, covenant to, by lessee ^^^ what amounts to breach of no relief in equity, from breach of when it runs with the land *"^ • INTEREST, when payable on rent 3^1 cannot be distrained for INTERESSE TERMINI, nature of 15, 73 INTERPLEADER, bill of, when it lies 627 INTOXICATION, lease by person in a state of 100 INTRUDER, effect of lease by S* INVENTORY, taken on a distress 609 IRREGULARITY in distraining, effect of 614 action for '^^ when trespass a concurrent remedy 732 JOINT TENANTS, leases by, general rule . . . , 114 differs from leases by, co-tenants . ' 115 actions by 264: distress by 569 notice to quit by 479 service of notice upon 481 (See, also, Co-tenants.) L. LACHES, in the performance of an agreement 49 in applying for a renewal 339 LAND, no implied warranty on letting 381 LANDLORD; his general rights during the tenancy 173 retains a general superintendence only 174 how far his liabilities suspended 175 may sue for injuries to the reversion 173 not for trespass, whUe tenant in possession 174 is not prejudiced by tenant's acts 175 liable to lessee, if he withholds possession 177 when liable to third persons for negligence 182 how far bound to repair 327 does not guarantee condition of premises 381 his rights on termination of tenancy 623 LAPSE OP TIME, termination of lease by 465 LEASE, history and origin of 13 INDEX. 721 LEASE — Continued. nature of the contract r* ... § 14 may be sold under an execution 14, note 2 how it differs from assignment 15 how far reversion necessary to 16 what property may be the subject of 17 when must be in writing 28 to commence, infuturo 30 differs from a mere license 31 parol agreement for, when enforced 32 when by part performance 33 when under seal 34 what is a sufficient signature to 35 what amounts to a present lease 39 an agreement for only 42 when for life 51 by tenants for life 63 for years 54 from year to year 55 at will 59 when it takes effect 68 when void for uncertainty 70 when on a contingency 70 what evidence of its commencement 69 effect of uncertain date upon 71 may be of perpetual duration 72 for years, may commence in futuro 73 for life, cannot commence in futwo 73 termination of 74 if void, creates a tenancy at will 79 fixes the amount of rent 80 who may make . . 84 when made by a disseizee 85 by estoppel 87 infants 93 persons of unsound mind 97 married women 101 a tenant for years 108 at will 112 joint tenants 114 a mortgagor 118 corporations 126 trustees 130 executors 133 guardians 135 receivers 136 agents 137 aliens 143 61 722 INDEX. LEASE — Continued. formal parts of § 146 nature of a deed-poll 14:7 as to the date 148 names 149 omission of lessee's name 149 recitals in 150 effect of misrecitals 151 reservation of rent in ' . . . . 152 consideration of 153 exceptions in 157 special reservations 158 words of demise 159 description of premises 160 alterations in 165 execution of 166 when to be witnessed and stamped 170 recorded 171 what covenants in, run with the land 262 distinction between void and voidable 492 determination of, by lapse of time 465 forfeiture 488 merger 502 surrender 504 notice to quit 466 disclaimer 522 destruction of premises 520 becoming house of ill fame 521 taken for public uses 619 LESSOE, his interest after executing lease 173 {And see Landlord.) his interest after assignment 447 cannot sue an under-tenant 448 LESSEE, his interest before entry 15 liable on his covenants after asssignment 438 may sue assignee of the reversion 441 entitled to indemnity from assignee 448 LETTER OF ATTORNEY 137 LICENSE, when to be in writing 31 cannot create an easement 237 to assign, discharges covenant 410 condition 286 may be restrained 411 when it it amounts to a covenant 251 effect of, in trespass 7gg LIEN, for expenditures by lessee 533 LIEE, tenant for who is 5I nature of this tenancy §2 INDEX. 723 LITE — Cmtinued. leases by § 53 must keep down charges 818 apportionment of rent on death of 383 ■waste by 697 entitled to emblements 634 LIGHTS, ancient, doctrine of 289 LIVE-STOCK, lease of 18 LIMITATION OF ESTATE, what 272 how it differs from a condition 273 LIQUIDATED DAMAGES, differs from penalty 678 LIVEKY OF SEIZm, what 68 LODGERS, their privileges and liabilities 67, 161 LODGINGS, agreement to occupy 66 LUNATIC, leases by 97 (See Idiots.) M. MACHINERY, when a movable fixture 545 MANURE, when it may be taken from farm 641 MARRIAGE BROKAGE, vitiates leif.se 153 is an assignment of a wife's term 432 MARRIED WOMAN, leases by 101 her husband's leases 102 may act without her husband 104 leases to, effect of 105 not liable on covenants 106 except as to her separate property 107 MERGER, what, and when it determines a tenancy 602 estates must be of same quality 503 must be in the next vested estate 504 both estates must be held in same right 605 can only be in a larger estate 506 MESNE PROFITS, action for 710 not against an executor 712 MESSUAGE, what 161 MILL-SITE, how right to, extinguished 240 MORTGAGE OF CHATTELS to secure rent 697 MORTGAGOR, is not a tenant 25, 121 leases by 118 when entitled to rent 123 should join mortgagee in making lease 125 will be restrained from committing waste 694 MORTGAGEE, when may have rents 123 if prior, may dispossess a tenant 119 subsequent may not 120 724 INDEX. MORTGAGEE — Continued. no tenancy between Um and mortgagor § 121 may collect rent after tenant attorns 122 ■when may have a receiver appointed 123 after entry may take rent 124 tenant may redeem from 124 should join mth mortgagor in a lease 125 may redeem from forfeiture 303 not liable as assignee 455 when entitled to emblements 537 N. NAMES OF PARTIES to a lease 149 omission of lessee's name . 149 NEGLECT, ordinary what is ... . 199, note NEGLIGENCE, tenant liable for negligent use of his premises .... 192 or improper use of fire .... . 196 in removal of party-walls .... . . 197 not, if injury caused by wrongdoer, or when mutual 199 in removal of adjoining soil and buildings 231 NEW YORK, manor lands in ........ i 12 termination of leases, in city of . . 77 NOTE, taking of, does not extinguish rent 505, 681 NOTICE TO QUIT, terminates an estate at wiU 466 or from year to year . . 467 or any other uncertain tenancy 468 or an agreement to purchase ,. 469 not by death of the tenant 470 may be given by tenant also 470 unnecessary, if no tenancy exists . 471 or if no privity exists between the parties 472 or if a day is fixed for terminating the lease 472 by tenant, unnecessary if landlord accepts the key 473 otherwise, if landlord undertakes to rent premises 473 mortgagor, when entitled to . . 474 what required 475 when to expire 4.76 irregularity of, how waived ... 477 effect of giving . - 478 by whom given 479 a substituted agent 480 to whom given 481 when to be in writing 482 mistake in, immaterial, 483 how to be served 484 how waived 485 INDEX. 725 NOTICE TO QVIT— Continued. effect of a subsequent notice § 486 position of the parties after notice 487 NUISANCE, tenant's remedy for 200 what amounts to 201 by interfering with rights of others 202 not a mere inconvenience . . 203 nor for the reasonable use of a right 204 injury need not be consummated 205 continuance of, who responsible for 175, 206 when legalized by long use 207 tenant's right to abate ; . . . 208 what force he may make use of 209 no previous demand necessary 210 what disturbance will amount to 211 when it excuses payment of rent 381 action for continuance of 784 NUESEKY, trees in, may be removed 646 0. OBSTRUCTION in street, tenant's liabiHty for 193 if through tenant's agency 194 OCCUPATION, tenant's HabOity for 635 effect of, in absence of agreement] 19 OCCUPANT, who is 19, note 2 when liable for taxes, &o 395 OLD AGE, a lease not to be avoided for 99 OPERATION OP LAW 607 (See SUEEENBEE.) OPTION of landlord to avoid lease 22 who entitled to in case of doubt 81 OR, important to distinguish the word 75, note ORNAMENTAL TIMBER, waste in 352 OUT-GOING TENANT, right to remove chattels 633 right to remove emblements 642 when may retain possession .'.... 633 PAROL demise, when good 27 evidence to explain lease 639 PARTIES TO A LEASE 84 infants 93 persons of unsound mind 97 married women 101 61* 726 INDEX. PAETIES TO A L^EASE— Continued. tenant for years § 10° joint tenants ll* mortgagor and mortgagee 118 corporations 126 trustees 130 executors 133 guardians 135 committees and receivers 136 agents 137 aliens and denizens 143 PAKTITION FENCES, obUgation to maintain 367 eacli occupant bound to contribute 367 PABTY-WALL, what constitutes a 188 obligation to rebuild or repair . ... 189 use of an ancient wall 190 PAYMENT OF RENT, evidence of tenancy 22 creates a tenancy from year to year . . 66 how far, by giving note or bond 66.5, 638 at what time due 391 where payable 392 when with interest 391 in specific articles 393 PARTNERS, leases by 117 when absent, bound by 117 PART PERFORMANCE, effect of 32 PATROON, in New York, what, 12, note PERMITTING AND SUFFERING, meaning of 321 PERPETUAL RENEWAL 333 (See Renewal.) PERIODICAL PAYMENTS, no apportionment of 887 POLL DEED, difference between, and indenture 146 POSSESSION, effect of, on an invalid lease 32 necessary to a lease 85 when it follows ownership 86, 785 adverse 86 when tenant bound to yield 524 proceedings to recover 713 is material to trespass 780 how far tenant may hold over' 633 POUND BREACH AND RESCUE, action for 606 POWER OF ATTORNEY, lease under 137 how to be stated in conclusion of lease 141 PREMISES, in lease, how described 161 how identified 164 PRESCRIPTION, regulates division fence 185 regulates use of running water 227 length of time necessary to establish 243 INDES. 727 PRIVITY OF CONTRACT AND ESTATE § 436 how determined by assignment 437 none between lessor and under-tenant 448 PROPERTY, what may be demised 17 PRECEDENT when a condition is 275 PRE-EMPTION, reservation of, on sale 285 PERFORMANCE, of covenant when excused 269 of condition, how discharged 289 PROSTITUTION, lease for purpose of, void 621 no rent can be recovered 644 PROVISO, what constitutes 279 {See Condition.) PUBLIC USE, premises taken for, entitles to compensation 181 when it dissolves tenancy .... 619 Q. QUIET ENJOYMENT, covenant for 304 implied in every demise 304 to whose acts it extends 305 against what acts 306 for whose benefit 307 upon lawful eviction only 308 what constitutes a breach 309 by one having a paramount title 310 not by a mere trespasser 311 unless so expressed 312 not for a mere personal wrong 313 when by eviction under elder title 314 by eviction from any material part 315 when adverse holding constitutes breach 315 by landlord's unmoral conduct 316 covenant for, runs with the land 262 rule of damage on breach of 317 QUIT, notice to, when it determines a tenancy 466 E. RATIFICATION of lease by infant 93 of agent's lease 137 of bailiff's authority to distrain 680 RASURE OF DEED, no surrender 511 RECEIPT OF RENT, acknowledgment of a tenancy 22 waiver of a notice to quit 485 728 INDEX. RECEIPT OF SENT— Continued. waiver of a forfeiture § 497 EECEIVER, leases by 136 when bound to pay rent 458 RECITALS m LEASE, effect of error in, immaterial 160 how far material 161 RECOUPMENT against demand for rent 374 RE-ENTRY, power of, to whom reserved 293 advantages of this clause 291 operates only during the term 292 how reversioner must avail himself of 294 when assigneee of reversion 295 grantee of a rent reserved 295 not by assignee of part of the reversion 296 when previous demand necessary 297 actual entry how far dispensed with 298 when demand of rent dispensed with 299 none if not reserved in the lease : . . 300 effect of this clause as a security for rent 302 mortgagee may redeem after 303 for non-payment of rent - . . . . 700 effect of on subsequent liens 303 for breach of a continuing covenant 412 in case of non-insurance 401 how landlord must make 531 when by express authority 532 tenants right after lease ended 533 RECORDING LEASE, when necessary 171 object and effect of 171 RELIEF from forfeiture 495 RELEASE, by way of enlargement of estate 507 REMAINDER-MAN, when bound by lease of tenant for life .... il3 REMOVAL OF BUILDINGS 231 duty of adjoining occupant upon 232 of goods after lease ended 533 of fixtures, when must be made 551 RENEWAL OF LEASE, lessor's covenant for 332 tenant's right of 332, note continued renewals 333 specific performance of, when ordered 334 appraised value on how regulated 335 in default of, to pay for improvements 335a right of customary renewal 336 when specific performance not ordered 337 a voluntary engagement not enforced 338 nof if lessee guHty of laches 339 what amounts to negligence in applying 339 concurrence of under-lessee unnecessary 340 INDEX. 729 RENEWAL OP IE AS^ — Continued. runs with the land § 332 KENT, not essential to a lease 14 payment of, ivhen evidence of a tenancy 22, 69 follows the reversion 164 different species of 370 may be reserved in gross 152 to whom payable 154 special reservation of 155 general reservation in lease 154 effect of mistake in 156 perpetual on fee 870 payable without any express agreement 371 in arrear, not assignable 447 otherwise, if to grow due 447 the covenant to pay 369 advantage of express covenant 871 covenant to pay, runs with land 372 binding upon the occupant 372 lessee not relieved from, by casualty 373 may recoup damages for not repairing 374 has no relief against his express covenants 875 ought to provide against casualty 376 general rule of law on this subject 877 penalty of double rent 624 when lessee excused from, in general 878 suspended by eviction 379 by erection of nuisance 380 covenant for void, if lease void 381 when apportioned or suspended 883 not on assignment by lessee 384 how apportioned by act of law 885 where tenant's interest extinguished 385 how aifected by surrender 886 extinguished, though eviction not continued 386 no abatement for proportional part of the term 887 except on the death of a tenant for life 887 or landlord fails in his agreement 888 mere trespass no discharge 389 to whom payable 890 when payable to executor 390 destruction by fire no excuse 872 when lessor will be enjoined from collecting 375 in case of opening a street 876 at what time it becomes due 891 where to be paid 392 how to be paid 893 accruing subsequent to discharge in bankruptcy 394 730 INDEX. BENT — Continued. re-entry for non-payment of § 293 tender of, to prevent forfeiture 391 demand of, to establish a forfeiture 493 remedies for enforcing payment of 555 effect of taking bond or note for 665 not extinguished by taking other security 665 remedy for in equity, in case of uncertainty 656 or against cestui que trust 657 REPAIRS, lessor's covenant for 327 lessor not liable for 328 even in case of fire, and he receives the insurance 329 exceptions to this rule 330 exception of casualties in the lease 331 under covenant, lessor must re-instate the premises 331 what lessee liable to make 343 tenant not liable for, in case of accidental fire 343 as to farming leases 344 bound to prevent waste 345 (See Waste.)' covenant for, by lessee, runs with the land 357 natural and unavoidable decay, no breach 368 what constitutes a breach 359 accident no excuse 360 when action lies before expiration of the term 361 a reasonable time to be allowed for 361 tenant holding over, still liable to make 362 even if lease void 363 not excused from covenant in case of fire or tempest 364 nor if assignee or mortgagee 865 not limited by amount agreed to be insured 366 as to co-tenants and party-walls 367 how far discharged by eviction 366 how far co-tenant bound 367 rule of damages 368 KEPLEAnOsT, action of, when it lies 739 liability of sheriff, for taking insufficient security 740 what amounts to breach of bond 741 how writ to be executed 742 effect of a delay to prosecute 743 liability of the sureties 745 sheriff must deliver actual possession 746 proceedings on claim of property 747 for what the action lies 748 by whom it may be brought 749 against whom it lies 75O venue in, when local 752 as to the declaration 752 INDEX. 731 KEPLEVIN— Continued. effect of various pleas § 754 pleas in bar 763 avowry at common law 755 tow altered by statute 756 pleas to the avowry 757 when place material 758 when defendant entitled to verdict 759 avowry requiring reply 761 judgment for return or damages 762 varieties of exception 763 EESCUE, when it may be made 729 RESERVATION OE RENT, what 162 in lease, what 162 if general, follows lessor's interest 154 when special 155 how distinguished from exception 158 RESIDENCE ON PREMISES, covenant for, and breach of .... 414 REVERSION, landlord's remedy for injuries to 173 rent follows 164 when reversioner may re-enter , 294 assignee of 442 RIGHT OF WAY " 213 RUNNING WATERS, right to the use of 224 when regulated by prescription 227 right on navigable stream 229 s. SET-OFF, by way of payment 374 SEAL, when necessary 34 what constitutes 166 one sufficient for several persons 166 SHERIFF, to retain a year's rent on execution 600 not liable without notice , 602 how compelled to pay 603 SIGNING OF LEASE, what sufficient 35 place of, when material 36 SPECIFIC PERFORMANCE, when enforced 46 when not 47 due diligence necessary to 49 necessary preliminaries to 48 of covenant to repair 172 of covenants generally 685 (See On other Covenants.) STAMP, leases to have 170 assignments also 427 STAYING PROCEEDINGS, for non-payment of rent 726 732 INDEX. STRAISTGEK, not bound by estoppel § 91 rent cannot be reserved to 155 cannot take advantage of condition 293 SUFFERANCE, tenant at 64 when he becomes tenant from year to year 65 not entitled to notice to quit 466 is liable for rent 622 SUPPORT, right of, from neighboring soil 233 how far dependent on prescription 234 lateral pressure not to be increased 235 from adjoining buildings 236 SUMMARY PROCEEDmOS, to recover possession 713 in case of a vacant possession 714 what constitutes such possession 715 where there is no sufficient distress 716 ! when tenant holds over, or fails to pay rent 717 when previous notice to be given 718 when demand of rent to be shown 718 the officer's jurisdiction 719 statute applies only where tenancy exists 720 not against mortgagor 720 not after distraining for rent 720 only in favor of the immediate reversioner 720a preliminary affidavit and summons 721 particular requisites of the affidavit 721a how summons to issue 7216 how served 722 how claim may be contested 723 and jury summoned 723 warrant to put in possession 724 adjournment and subpoenas , . . . . 724 effect of a warrant of dispossession 725 when to be stayed 726 in case of a sale on execution 726 certioran upon, without stay of proceedings 728 may be appealed from 728a when lessee may be re-instated 727 SURETY, when not affected by surrender 508, note SURRENDER, what is, and how it differs from a release 507 to whom made 508 can be made only to the reversioner . 518 in fad, must be in writing 509 technical words of 510 cancellation of lease no surrender 511 in law, what amounts to 512 the new lease must pass a certain interest 512 cannot operate in fiduro .,..,.,,..,... 513 acceptance of new tenant by landlord 514 INDEX. 733 SURRENDER— Continued. by continued change of possession § 615 consent of all parties necessary 515 when lessor underlets, without lessee's consent 616 consent to substitute must be mutual 617 ' original rights and remedies preserved after 618 SUSPENSION OP KENT, when 378 not by a trespass 889 T. TAXES AND ASSESSMENTS, lessor's responsibility for 841 tenant entitled to indemnity against 842 rents liable for as personal property 342, note tenant's covenant to pay 896 when to be deducted from rent 896 exceptions in tenant's favor 898 for public improvements 899 TENANCY, how created 14 by implication of law 19 when not to be implied 21 when by payment or receipt of rent 22 by remaining in possession 22 none, if money is not paid as rent 23 nor by renting a farm on shares, or boarding at a hotel .... 24 nor if the position of parties can be referred to any other cause . 26 by express agreement 26 history and nature of . ._ 27 effect of statute of frauds upon 28 for life, mugt commence in prmsemti 51 may arise by grant in general terms 52 from year to year 54 for years, may commence infuturo 68 from year to year, by general occupation 55 payment of rent 56 holding over 67 of a mortgagor 118 at will, by permission of owner 69 on payment of rent, becomes tenant from year to year . . 60 how forfeited 62 terminated by notice to quit 63 by sufferance, has a mere naked possession 64 may become a tenancy from year to year .... 66 determined by mere entry 467 on payment of rent, becomes tenant from year to year 67 for lodgings when to be in writing 66 incidents of 67 62 734 INDEX. TENANCY— Continued. for life, cannot commence in futuro § 51 how created 52 may make under-lease 53 when terminated H" may make lease for years under a power 112 when remainder-man bound by 11^ for years, how created 54 from year to year 55 when by holding over 58 in common, what r~114: at will, what is - 5^ when it becomes from year to year 56 how created 59 distinguished from tenancy from year to year ... 61 determined 62 entitled to notice to quit 63 at sufferance , 64 TENANT, his right to quiet enjoyment 304 by the courtesy, effect of his leases 101 for years, leases by - 108 for life 50 from year to year 54 how terminated 55 effect of his under-lease Ill at will cannot underlet 112 unjess confirmed by remainder-man 113 when his rights and responsibilities attach 176 entitled to full possession 177 may maintain actions . 178 responsible for the repair of highways, for nuisances, &c. . . . 178 must preserve boundaries 179 respect rights of co-tenant 179 must give landlord notice of ejectment ' 180 may recover value of property taken for public use 181 liable to stranger for negligence 182 must support fences and party-walls 183 how far liable for nuisance 192 must not obstruct street 193 carry on offensive trade 194 keep vicious dog on premises 196 liable for negligent use of fire 196 or other careless act 197 not for the carelessness of a stranger 198 for life must keep down encumbrances 318 always impeachable for waste 697 his remedy against nuisances 200 his right of egress and regress 531 INDEX. 735 TENANT— Gontinued. lien on buildings erected by him § 632 right to remove his goods 533 to emblement 534 away-going crops 642 fixtures 544 cannot dispute his landlord's fStle 629, 705 ' how far he may in aetioa of ejectment 707 TENDER, of deed how made 49, note of money when to be made 391 how made 393 requisites to its validity 894 where to prevent a forfeiture 392 how it affects a distress 729 TENURES, origin of 1 different species of feudal 6 allodial 6 socage 7 in the United States 8 in New York 9 TERM, signifies the time as well as estate 16 commencement of 68 when on a contingency 70 uncertain date 71 for what period 74 when from day of date 78 if agreement void 79 if lessor excegds his interest 80 TERMINATION OF LEASE, when 74 how ascertained 75 in city of 4Tew York 77 from what time computed 78 when no time specified , . . 79 under a void agreement 80 when left optional 81 so long as both parties please 82 if lessor exceeds his estate 83 by lapse of time 465 notice to quit 466 forfeiture 468 merger 502 surrender , 607 when premises taken for public use 619 by destruction of premises 520 being turned into house of ill fame 621 tenant's disclaimer ; 622 tenant's rights after 533, 551 TIMBER, what considered to be 360 736 INDEX. - TIMBER — Oontimed. may be cut by tenant, for repairs § 351 cut wastefuUy, belongs to owner of inheritance 354 TIME, liow computed 78 TITLE, tenant not allowed to question landlord's 705 but may show it has expired 629 TRADE, covenant not to carry on 416 how far recognized in law 417 what constitutes a breach of this covenant 418 TREES, encroaching on division fence may be lopped 191 cutting off, when waste 350 when taken for repair 351 clearing up new country 352 felled, part of inheritance 354 prevention of waste in 691 trespass for cutting 173, 766 in nursery ground may be removed 646 TRESPASS upon land, action for 764 nature of 765 effect of license 766 abuse of authority 767 when ah initio 632, 767 for illegal distress 768 on the case 769 when possession by plaintiff necessary 770 who may maintain 771 right of possession must be exclusive 772 as to the nature of the injury 773 only for injury to corporal property 773 nature of the property 774 case for injury to reversionary interest ' . . . . 776 disturbance of a franchise 776 guare claitsum fregit 777 intention of defendant immaterial 778 vi d armis 779 possession material to plaintifif 's case 780 right of property not material 781 by a tenant against his landlord 782 by a mere disseizee 783 by the reversioner 784 when possession follows ownership 785 action lies against personal representatives 785 TRESPASSER upon the tenant, when landlord is 174, 765 TROVER, by landlord, for trees cut down 765 for severed fixtures 553 by tenant, for goods wrongfully taken 739 TRUSTEE, leases by 130 duration of such leases 131 breach of trust in respect to 132 INDEX. 737 u. UlSrCERTAmTY, when it avoids agreement § 70 in wliose favor to enure 81 UNDER-GROUND STREAM, use of 230 UNDER-LEASE differs from an assignment 16, 109 who may make 108 lessee's indemnity upon 110 when breach of covenant not to assign 403 UNDER-TENANT, no privity between him and lessor 448 entitled to indemnity against lessor's covenants 110, 738 rights as between each other 179 privilege as to emblements 686 not liable to lessor, on lessee's covenants 636 USAGE, (See Custom) . . . . , 538 USE AND OCCUPATION, when action Hes for 635 not by lessor against under-tenant 636 for the use of an incorporeal hereditament 688 not after lease surrendered 637 when by assignee of reversion 639 or of the rent without the reversion 639 not if lease is by deed 640 action founded on occupation 641 any permissive holding sufficient ; 642 against assignee of the term 643 not if let for an immoral purpose 644 otherwise, if destroyed by fire 645 or in an unhealthy condition 646 lies, though tenant quit before the end of the term 647 or refuses to accept the lease 648 otherwise, if landlord accept a new tenant 648 or evicts the tenant 649 amount of rent fixed by the agreement, though void 650 averments in the declaration 651 when bankruptcy bars this action 652 general defences 653 failure of plaintifif's title 654 what evidence required 655 USUAL COVENANTS, what are .... ^ 45 USURY, vitiates lease ' 153 V. VACANT POSSESSION, when landlord may resume 714 what constitutes 715 VOIDABLE LEASE, may be confirmed 492 but not by the tenant 492 738 INDEX. VENUE, when local or transitory § 625 VOID LEASE, holding under 19. 80 distinction between void and voidable 4"2 VOLUNTAEY WASTE 345 (See Waste.) w. WAIVER of forfeiture 497 of notice to quit 485 WARRANTY of witness, none implied 381 WASTE, voluntary, committed by tenant, what is 346 acts tending to destruction of the premises 346 not if caused by tempest or the like 347 in respect to animals, what 347 buildings what 348 suffering premises to remain wasted 349 in respect to timber 350 whether timber or not, depends on circumstances 351 may be cut for firewood and repairs 352 but not to sell 853 clearing up new lands is not 353 timber feHed belongs to lessor 354 of the clause, without impeachment of waste 355 in respect to cultivation 356 action of, by and against whom it lies 686 joint tenants, and tenants in common 687 on the case for 688 when against an executor 689 order of a court of law to restrain 690 remedy by bUl in equity 690 injunction to prevent 691 against cutting trees 692 for and against whom a bill in equity lies 693 when against tenant without impeachment of waste 694 account wUl be taken 697 on what grounds injunction allowed 695 when denied 696 against tenant without impeachment of waste 697 WATERCOURSE, may be leased 17 mode of enjoyment 224 its use must be reasonable 225 neglect to repair dam 226 who right to, controlled 227 cannot be materially varied 228 effect of a grant bounded on 229 use of a navigable stream 229 INDEX. 739 WATERCOUESE — Continued. from underground spring § 230 WAY, right of, may be leased 17 what and how it arises 213 when from necessity 214 on bank of river 215 is a qualified right 216 when to be presumed 217 when extinguished ; 217 WAY-GOmG CROP, when tenant entitled to 5-42 (See Crop.) WEAKNESS OF MINT), will not avoid lease 98 WILL, tenancy at 69 nature of this tenancy 60 different from year to year 61 determination of 62 cannot underlet 62 when allowed emblements 634: WITNESSES, when necessary to lease 170 WOODS 860 (See Timber-Trees.) WORDS PROPER, of demise 159 WRITING, unnecessary to create lease 27 WRONGFUL DISTRESS, action for 729 what will support 731 YEARS, tenant for, nature of his interest 54 can only be by express contract 64 must be for a time certain 55 notice to quit by 68 duration of, must be agreed upon 70 interest from entry 171 can only sue after entry 178 YEAR TO YEAR, nature of this tenancy 55 who is tenant from 66 when implied 22 from holding over 68 entitled to notice to quit 467 emblements 535 YIELDING AND PAYING, imply a covenant to pay rent 262 CAMBKIDGE : PKBSS OF JOHW WILSOH AND SOHS. KF 590 T2k 1866 Author Vol. Taylor, John Neilson Title Copy A Treatise on the American law of lauCiaiuxd and tenanii —