A treatise on the law of landlord and tenant, including leases, their execution, surrender, and renewal, the parties thererto, and their reciprocal rights and obligations, the various kinds of tenancy ... &c., &c., with full references to the latest American and English cases and to relevant American and English statutes, both ancient and modern

THE LIBRARY

OF

THE UNIVERSITY

OF CALIFORNIA

LOS ANGELES

SCHOOL OF LAW

A TREATISE

OV THE

LAW OF LANDLOED
AND TENANT

INCLUDING

LEASES, THEIR EXECUTION, SURRENDER, AND RENEWAL,

THE PARTIES THERETO, AND THEIR RECIPROCAL

EIGHTS AND OBLIGATIONS, THE VARIOUS KINDS

OF TENANCY, THE USE AND POSSESSION OF

THE PREMISES THE CHARACTER OF

RENT AND THE REMEDIES FOR ITS

RECOVERY, THE TENANT'S RIGHT

TO FIXTURES, &c., &c.

FULL REFERENCES TO THE LATEST AMERICAN

AND ENGLISH CASES AND TO RELEVANT

AMERICAN AND ENGLISH STATUTES,

BOTH ANCIENT AND MODERN

BY

H. C. UNDERHILL,

OF THE New York Bar

Author of a " Treatise on the Law 'of Evidence." a "Treatise
on the Law of Criminal Evidence," a " Treatise on the Law of
Wills," and of the article " Criminal Law, " in the "Cyclopedia
of Law and Procedure."

IN TWO VOLUMES

VOL. 1

CHICAGO

T. H. FLOOD & CO.

1909

T

Un V5 U

19^9

CJOPYRIGHT, 1909,
BY

HARRY C. UNDERBILL

6TA.TE JOURNAL PRINTINQ COMPANY,

PwWTItRH AND StiCRKOTYPKRS,
>IAi)LHON, WLS.

To My Wife

MARGARET UNDERHILL,

THESE VOLUMES

ARE AFFECTIONATELY DEDICATED

BY THE AUTHOR

670834

Preface.

Owing to the fact that there already exist many text books
treating more or less elaborately of the topic of the reciprocal re-
lations and rights of landlord and tenant, it appears appropriate
in this place for the author to state some of the reasons which in
liis opinion justify the publication of this work. This is the
more necessary as it is reasonably certain that the plan, the the-
ory and the merits of this work will be placed in comparison with
the manj^ treatises on the subject which are now in the hands of
the profession. In the first place it has seemed, to the writer that
an}^ treatment of the relation of landlord and tenant which lost
sight of the fact that the relationship was of a contractual char-
acter, and that consequently the rules of the modem law regu-
lating the subject of contract were applicable, must be at once
insufficient and illogical. Keeping this fact in view constant
reference has been made to the general principles of the law of
contracts of which the rules regulating the relation of landlord
and tenant are a part. For example, a full discussion is at-
tempted of the rules of the construction and interpretation of
covenants as contained in the instrument of lease. Again, such
topics as consideration, description of the parties, subject mat-
ter, etc., have received adequate discussion; while, on the other
hand, very many topics which anciently were regarded bj' the
text-book writers as of great importance, but which have become
obsolete, either by statutory enactment or by judicial legislation,
have, in the interest of conciseness, been w^holly or partly omit-
ted. Thus there will be found ver\' little in these volumes of
the law of distress for rent for the reason that, in most States of
the Union it has been abolished. On the other hand the land-
lord's lien for rent or advances which is altogether the creation

VI PEEFACB.

of statutory legislation is treated at considerable length. So,
too, the feudal tenures and their incidents of various sorts re-
ceive but scanty space and attention, the space which their discus-
sion would have occupied being employed in a discussion of more
timely topics, as for example, the negligence of the landlord in
general and the reciprocal rights and obligations of the parties
to leases of separate flats or floors in dwelling houses.

The author has in general endeavored to adhere closely to the
rules and principles of law which have been enunciated by the
courts of last resort, preferring rather to record the law as he
has found it to exist than to state what in his opinion the law
ought to be. Where the courts have differed in determining the
law, he has not, as a general rule, sought to reconcile the de-
cisions, except to point out, when necessary, the differing cir-
cumstances under which the variant decisions were rendered.
While the most recent cases, as being most accessible, have been
given the preference in citation, the early American decisions
and the English decisions, particularly those which are recog-
nized as leading <^ases, have neither been overlooked, nor inten-
tionally omitted.

An attempt has been made to have the citation of cases as com-
plete and exhaustive as possible. M^my thousand cases have
been examined, analyzed and cited. It will be found in many
instances that not only is the page in the report cited upon which
the case cited begins, but that the page which contains or af-
firms the rule of law which the case is cited to support is also
given. Where cases have been cited from the reports of the
National Reporter system, the official reports have also been cited
so far as the cases have been officially reported prior to going
to press. H. C. Underiiill.

Borough of Brooklyn, New York.

April, 1909.

Table of Contents.

CHAPTER I.

THE PARTIES TO THE LEA&E.

§ 1. The general rule i

2. Leases by life tenants 2

3. Leases by life tenants under a power 3

4. The termination of terms created by a life tenant as a

landlord 9

5. The validity of lease by tenants for years 8

6. Guardianship in general 9

7. The liability of an intruder as guardian 11

8. The power of a guardian in socage 11

9. The power of testamentary guardians 12

10. The power to lease of a guardian appointed by a court 13

11. When the permission of the court to the making of the

lease is required 14

12. Limitations upon the power of a guardian to lease 14

13. The duty of the guardian to lease 15

14. The guardian's duty to collect rents 16

15. Formal requisites of the lease 16

16. Covenants by guardians 17

17. An infant's liability for rent 17

18. The ratification of a lease made by an infant 19

19. The invalidity of a lease made by a feme sole 19

20. The effect of her marriage upon a lease made by a feme sole 20

21. The invalidity of a lease made by a feme covert at the com-

mon law 21

22. The husband's power at common law to lease lands of the

wife 22

23. The right of a married woman to lease under the modern

statutes 24

24. The eifect of the death of the husband or wife upon a lease

made by the wife 24

25. The control of the husband over leases held by the wife as

executrix 25

26. The disposition of a term by the husband of a lessee to take

effect at his death 20

VIU TABLE OP CONTENTS.

27. Leases of communitj- property 27

28. The modern rule as to the relation of mortgagor and mort-

gagee 28

29. The right of the mortgagee to the rent at the common law 29

30. The appointment and powers of a receiver in foreclosure. . 31

31. The effect of a foreclosure upon the tenant's rights 33

32. The right to rents of the purchaser on a sale under fore-

closure 34

33. The power of the Federal government to lease lands 35

34. The validity of leases of lands owned by Indians 37

35. Leases by aliens 41

36. Leases to aliens 41

37. The effect of the death of the lessee on leases for terms

of years 41

38. The expiration of a lease for years on the death of the

lessee 43

39. The liability of the personal representative of the deceased

lessee of a term of years 44

40. The remedies of the personal representative of the lessee. . 47

41. The rights of an executor of a lessor 48

42. The liability of a personal representative for rents 51

43. The power of an administrator to lease the lands of his in-

testate 52

44. The power of an administrator with the will annexed to

lease 53

45. The general rule as to the power of executor to make leases 54

46. A lease which is executed by one of several executors or ad-

ministrators 54

47. A lease by an executrix being a feme sole 55

48. The equitable jurisdictiton over leases made by executors. 56

48a. The power of trustees to grant leases 5G

48b. The proper covenants in leases by trustees 58

48c. Signature by one of two or more trustees 59

48(i. The personal liability of the trustee 59

CHAPTER II.

CORPORATION LEASES.

9 49. The common law power of corporations to grant leases. ... 61

50. 'i'he common law rule as to the power of a coriwration to

become a lessee 62

51. The form of corporation leases 63

52. The necessity for seal on a corporation lease 64

53. By what officer a corporation lease should be executed G.'j

54. The period for which a corporation lease may run 60

55. When leases are ultra vires 68

56. The effect of the dissolution of a corporation upon an exist-

ing lease 70

TABLE OP CONTENTS. IX

57. The power of municipal corporation to grant leases 71

58. A municipal corporation as a tenant 73

59. Ultra vires leases by municipal corporations 76

60. Leases of park grounds by municipal corporation 77

CHAPTER III.
LEASES BY JOINT OWNERS.

§ 01. Leases by joint tenants and tenants in common distin-
guished 80

62. Tenancy in common 81

63. The relation of landlord and tenants among tenants in com-

mon 82

64. Tenants in common as lessors 84

65. Actions by tenants in common to recover rent 87

C6. Effect of a lease by joint owners 88

67. The right of joint tenants to the rent 89

68. The liability of joint lessees for rent 91

69. The liability for rent of co-partners in business 92

CHAPTER IV.

LEASES BY AGENTS.

^ 70. The agent's authority to lease must be strictly pursued. ... 94

70. The apparent authority of the agent 90

72. Lease under seal made by an agent 97

73. An agent's authority in writing under the statute of frauds 99

74. The ratification of a lease executed by an agent without au-

thority from the principal 100

75. The fraud and false representations by an agent 102

76. The authority of an agent to accept possession on abandan-

ment by the tenant 102

77. The power of an agent appointed to manage property 103

78. Where the agent renders himself personally liable 105

79. Undisclosed principal where a lease is under seal 108

CHAPTER V.

THE CHARACTER OF THE PROPERTY WHICH MAY BE LEASED.

§ 80. What may be leased 110

81. A lease of land held adversely Ill

82. Leases of public land 112

S3. The lease of land or houses with chattels to be used there-
with 113

I TABLE OF CONTENTS.

S4. Lease of surplus waters of canals 116

85. Leases by a tenant in dower or curtesy 118

86. Agricultural- leases in New York 118

87. The ix)wer to lease a homestead 121

88. The lease of a portion of a homestead 123

89. The mode of the execution of a lease of a homestead 124

CHAPTER YI.

TENANCY FROM YEAR TO YEAR.

§ 90. The origin of tenancy from year to year 127

91. The continuity of the several yearly periods 128

92. The use of express language in creating a tenancy from

year to year 129

93. The character of the cultivation of the land as determining

the period of the tenancy 151

94. The payment of a yearly rent as creating a tenancy from

year to year 133

95. The effect of the death of either party upon a tenancy from

year to year 136

96. The rule as to repairs by a tenant from year to year 137

97. A tenancy from year to year created by a tenant holding

over 139

98. Rebutting the presumption which arises on a tenant hold-

ing over 141

99. The modification of the terms of the original lease as

against a tenant holding over 142

100. Holding over excused when it is caused by the action of the

board of health 14-5

101. Statutory modification of the rule that a holding over

creates a tenancy from year to year 146

102. Tenancies from year to year created by leases void under

the statute of frauds 146

103. Tenancies from year to year arising from defective and un-

executed leases 148

104. The necessary incidents of a tenancy from year to year. . 149
10.5. Tenancies from month to month. How created 150

106. Tenancy from month to month by holding over 152

107. The commencement of a monthly period 153

108. The conversion of tenancies from month to month into

tenancies from year to year 153

109. The statutory rules creating a tenancy from month to

month by holding over 153

1 10. Tonanoies from week to week 154

111. The necessity of notice to quit at common law 155

112. The length of time required by the notice to quit 158

113. The length of the notice to quit in weekly and monthly

tenancies 160

TABLE OF CONTENTS. XI

114. Statutory regulation of the notice to quit 161

115. The necessity and the sufficiency of a notice to quit in the

case of tenancy from month to month 1C3

116. The statutory regulation of the notice to quit in tenancies

from month to month 163

117. Notice to quit when required by the express terms of the

lease 164

118. The form and the character of the notice to quit 165

119. The construction of the language of the notice to quit 167

120. To whom notice must be given 168

121. By whom the notice to quit must be given 170

122. The date upon which the period stated in the notice must

terminate 172

123. The necessity of personal service of the notice to quit 173

124. A notice to quit given by an agent 17&

125. Waiver of defects in the notice to quit 176

126. Waiver of a notice to quit by a subsequent notice 176:

127. The effect of a notice to quit 177

128. The withdrawal of a notice to quit 178

129. The waiver of a notice to quit by the receipt of rent 178

130. When a notice to quit may be dispensed with by a surren-

der ISO

131. A disavowal of the landlord's title by the tenant may dis-

pense with giving a notice to quit by the landlord 182

CHAPTER VII.

TENANCY AT WILL.

133. The definition of an estate at will 186

134. A reservation of rent is not necessary to create a tenancy

at will 186

135. The liability of a tenant at will for rent 187

136. Tenancy at will by express agreement 188

137. The mere occupation of the land by the permission of the

owner 189

138. Leases of an uncertain duration 190

139. Entry under an agreement for a lease 192

140. Tenancy at will created by a defective or unexecuted lease. 194

141. Leases void under the statute of frauds 195

142. The vendee of the land having gone into possession under

a contract to buy 197

143. Tenancy at will by holding over 201

144. The occupancy of the premises incident to the employment

of the occupant 202

145. The judgment debtor holding over after sale under execu-

tion 204

b

Xll TABLE OF CONTENTS.

146. The lessee of a judgment debtor holding over after the sale

under the execution 204

147. The determination of the will. In general 205

148. The termination of a tenancy at will by the death of either

party to it 206

149. The partition of the demised premises by tenants in com-

mon 207

150. Termination of the tenancy by the surrender and abandon-

ment of the premises 208

151. The termination of a tenancy at will by the landlord's

alienation of the premises 208

152. Denial of the title of the landlord by a tenant at will 211

153. The tenancy at will may be determined by the giving of a

new lease 213

154. The entry of the landlord on the land as terminating the

tenancy 214

155. Notice to quit when required in tenancies at will at com-

mon law 216

156. Notice to quit and demand of possession as terminating a

tenancy at will 218

157. Statutory notice required to terminate a tenancy at will . . . 218

158. The termination of the period of notice 221

159. The commission of waste by a tenant at will 222

160. The assignability of the tenant's interest in an estate at

will 223

161. The right of a tenant at will to recover damages for an in-

jury to the land 224

CHAPTER VIII.

TENANCY AT SUFFERANCE.

162. The definition of a tenancy at sufferance 226

163. A tenancy at sufferance arising on the termination of a

tenancy at will 227

164. A tenancy at sufferance by holding over 228

165. The grantor in possession after the delivery of his deed. . 230

166. A servant or agent in the possession of his employer's land

after the contract is at an end 231

167. Mortgagor in possession after sale or condition broken... 232

168. When an undertenant becomes a tenant at sufferance 233

169. Necessary for notice to quit 234

170. Right of a tenant at sufferance to lease 235

171. The liability of a tenant at sufferance to pay rent 235

172. Action of trespass by the landlord against the tenant at

sufferance 237

T^VBLE OF CONTENTS. Xlll

CHAPTER IX.

WHAT CONTRACTS ARE LEASES,

§ 173. The definition of a lease 240

174. Leases in reversion. Interesse termini 241

175. Formal and technical language unnecessary 242

176. Words proper to create a lease 244

177. Whether a writing is a lease or an agreement to make a

lease 246

178. Question for court or jury 250

179. The intention of the parties 2.jO

180. The assent of the parties to a lease 251

181. The consideration for the lease 254

182. Some circumstances which tend to show an instrument is

a lease 255

183. No presumption of tenancy from possession alone 257

184. The length of a term in an agreement to make a lease 258

185. The term as stated in the lease 260

186. Entry into possession as indicating a lease 2G1

187. The presumption of an existing tenancy from the payment

of money by the occupant to the owner 262

188. The necessity for the payment of rent 263

189. The i)erformance of a cont'.act to execute and deliver a

lease 264

190. The specific performance of an agreement to make a lease. . 2G5

191. The measure of damages for a breach of an agreement to

make a lease 267

192. Letters constituting agreement to make a lease 268

193. A lease distinguished from a license 269

194. Agreement permitting the cutting of timber 273

195. The possession of a tenant under a void lease 275

196. A lease with an agreement to sell the premises 276

197. Lease or mortgage 277

198. The lease of space in a department store 280

199. A lease distinguished from a contract to furnish board and

lodging 281

200. Agreement to board and care for the owner of land 2S3

201. An entry upon land of another under an option to purchase

from him 284

201a. The mortgagee of the tenant's chattels in possession 284

202. Future lease of an unfinished building 2SG

203. Mortgagor or his tenant and a purchaser at a sale under

foreclosure 287

204. Contracts for advertisin-:? space 288

205. A purchaser of a crop on an execution sale 290

206. The judgment debtor holding over after a sale on an exe-

tion 291

XIV TABLE OF CONTENTS.

207. Whether an instrument is a lease or a partnership agree-

ment 291

208. Contracts for steam heating and for steam and water

power 293

209. Miscellaneous cases 297

210. Whether occupant of premises is servant or tenant 299

211. The intention of the parties 300

212. Illustrations of the rule 302

213. The character of the posssession of the premises as de-

termining whether an occupant is a servant or a tenant 302

214. The power of the master to remove his servant from the

premises 305

215. Contract of hiring by a religious society 305

216. A public officer as a tenant of a county 306

217. A servant holding over after his employment is at an end. 307

218. The right of third parties 307

219. The distinction between cropers and tenants 308

220. The ownership of the crop 311

221. The duties and the rights of the landlord and tenant. . . . 313

222. The remedies of the parties 315

223. Relation of landlord and tenant not presumed between

vendor and vendee 316

224. The default or the refusal of either party to perform 318

225. An express agreement of the vendee to pay rent 319

226. The entry of a vendee under a parol agreement to purchase 322

227. The vendor of land continuing in possession after his con-

veyance of the title 322

CHAPTER X.

THE FORM AND EXECUTION OF LEASES.

§ 228. The scope of this chapter 325

229. The formal requisites of a lease 325

230. General rules of the law of contracts as to signatures 326

231. The signature to a lease by the tenant only 327

232. The signature by the lessor only 328

233. The signature to a lease affixed by a surety 330

234. The necessity for and the form of seals 331

235. The attestation of leases 3S2

236. The necessity for an acknowledgment 334

237. The description of the premises 336

238. The description of the parties 340

239. The date of the lease 342

240. The date of the commencement of the term 343

241. The necessity of the delivery of the lease 348

242. The acceptance of a lease 351

243. The necessity for the entry of the tenant 354

TABLE OP CONTENTS. XV

24^. The date upon which the lease expires 355

245. The reversion in the lessor 357

246. The approval of the lease by the attorneys for the parties 357

247. The responsibility of the tenant 360

248. A failure to read the lease 361

249. A mistake in the execution of a lease 362

250. The usual and customary covenants and provisions 364

251. Leases executed in duplicate and counterpart 366

252. The mode of proving a written lease 367

253. Term expiring on the happening of a contingent event. . , . 368

254. Leases terminable on the sale of the premises 371

255. The option of the lessee to terminate the lease 373

256. Measure of the damages for a failure to execute a lease. . 377

257. The effect of the statute of frauds on leases 378

258. Contracts concerning an interest in land 379

259. Extensions and renewals of leases 383

260. Leases by parol which are void under the statute 384

261. The character of the writing 386

262. Effect of performance in taking the lease out of the stat-

ute 388

263. The recording of leases 389

264. The construction of the statutes requiring the record of

leases 391

265. The effect of recording a lease upon the rights of a subse-

quent lessee 393

266. The effect of the record as notice 394

267. As against the creditors of the lessor and persons claim-

ing under him 394

268. The effect of recording a lease which is not required to be

recorded 395

CHAPTER XI.
THE PROPERTY WHICH IS INCLUDED IN THE LEASE.

270. The scope of this chapter 396

271. Property included 397

272. The privileges of a tenant of a part of a building 400

273. Description of leased premises by street number 402

274. Elxclusive right of the lessee of a hotel to use a particular

name 404

275. The tenant's right to light and air coming through his

front and rear windows 405

276. Rights as to the use of light and air as between the pro-

prietors of adjoining premises 409

277. The right of a tenant to use outside walls 412

278. The use of roof for advertising purposes 415

279. Tenant's right to show windows 415

XVI T/BLE OF CONTENTS.

280. Easements of egress and ingress 416

281. Tenant's right to use of stairways and halls 419

282. The right to use an elevator 424

283. Electric light as an appurtenant 426

284. Easement of water supply 426

285. The riparian rights of the lessee 430

286. Right of the tenant to accretion 433

287. Ice forming on land demised 434

288. Lease of a mill or of a mill privilege 437

289. Action for damages for the violation of an easement 439

290. The protection of the tenant's easements by an injunction 440

291. Construction of the word "appurtenances." The general

rule 442

292. Things which have been held not to pass as appurte-

nances 446

293. Meaning of the word "half." 451

CHAPTER XII.

THE CONSTRUCTION OF LEASES.

§ 294. "What law governs 452

295. The construction of the language of written leases 453

296. The lease construed by the conduct of the parties 455

297. Writings shall be construed together 457

298. Merger in lease of all preliminary conversations 457

299. The meaning of technical terms in a lease 459

300. When parol evidence is received in the case of leases 459

301. When parol evidence is not received in the case of leases. . 463

302. Parol evidence of custom to aid in the construction of a

lease 465

303. The modification of the lease by the parties 466

CHAPTER XIII.

FRAUD AND DURESS IN PROCURING THE LEASBL

§ 304. General rules as to duress and fraud in relation to con-
tracts 46S

305. The effect of delay 409

306. Fraud In the procurement of a lease 470

307. The cancellation of the lease for duress or inadequacy of

the consideration 472

308. Leases between persons occupying confidential relations

with the lessee 474

309. The elements which must co-exist in the case of fraud. . . 475

310. The fraud of the tenant 479

311. The tenant who has been defrauded need not abandon the

premises 480

TABLE OF CONTENTS. Xvii

CHAPTER XIV.

THE ATTORNMENT OF THE TENANT.

312. Attornment defined 482

313. Payment of rent as constituting attornment 483

314. The necessity for the landlord's consent to the attornment 484

315. The effect of the statute of Anne upon attornment 485

316. The tenant's attornment to a mortgagee or purchaser at

foreclosure 486

317. The statutory rights of the grantee of the reversion 488

318. The grantee's right to collect rent 491

319. The extent of the rights of the grantor after his convey-

ance 494

320. The obligations of a grantee to tenants in possession 496

321. The notice to the tenant of the sale of the reversion 498

322. The effect of a sale of the reversion under a decree or

judgment 500

CHAPTER XV.

THE NATURE AND INCIDENTS OF RENT.

323. Rent. Definition and genei-al characteristics 504

324. Various kinds of rent distinguished 506

325. Whether rent may be reserved out of personal property. . 509

326. The payment of rent as evidence of tenancy 511

327. The certainty of rent 512

328. Rent to become due on the happening of some future event 513

329. Rent payable in services 514

330. Rent payable in specific articles 515

331. The express covenant to pay rent 518

332. A covenant to pay rent may be implied 518

333. When rent is due 522

334. Rent which is made payable in advance 524

335. The place for the payment of the rent 527

336. To whom rent should be paid 529

337. Rent made payable to persons other than the landlord. , . . 532

338. Rent payable in instalments 534

339. The tender of the rent by the lessee 536

340. Apportionment of rent between successive landlords 538

341. Apportionment among the several assignees of the lessor. 541

342. Apportionment among the assignees of the lessee 543

343. The liability of testamentary trustees for rent 544

344. The payment of rent by an under-tenant to the original

lessor 544

345. Payment of rent by note, check or draft 546

XVlll TABLE OF CONTENTS.

346. Receipts for rent. When conclusive and presumption of

payment therefrom 549

347. The application of rental payments 551

348. The necessity of a demand for the payment of rent 553

349. The reduction of the rent by the landlord during the term 554

350. Increase of rent on re-hiring or during the term 558

351 The jurisdiction of the courts in an action to recover rent 558

352. The form and nature of the lessor's remedy to recover

rent 559

353. Recovery by the landlord of rent where the tenant has

never taken possession 561

354. Joinder of cause of action for rent 562

355. Recoupment, counterclaims and set off, by a lessee in an

action to recover the rent 562

356. Notice to produce the lease in an action to collect rent. . . 566

357. Payment of rent during occupation. The meaning of the

word "occupy." 566

358. The appraisal of the rent on the renewal of the lease 567

359. The manner of the appraisal 568

360. The result of a failure to fix the rent 569

361. The power of the court to make or to review an appraisal

of rent 570

362. The basis of the action for use and occupation 572

363. The title of the landlord 575

364. The occupation must be proved 578

365. Against whom action for use and occupation can be main-

tained 578

366. Parol evidence to prove use and occupation 5S0

367. Defenses in an action for use and occupation 582

368. Pleading in an action for use and occupation 582

CHAPTER XVI.

THE SECURITY FOR THE RENT.

3C9. Deposit by the lessee as a security for payment of rent. . 583

370. The tenant's right to the return of his deposit 585

371. Deposit made by a tenant with landlord on contract to

make a lease 587

372. The general rule as to liquidated damages 588

373. Chattel mortgage to secure the payment of the rent 589

374. Construction of an agreement to give security 5!)1

375. When the principal and surety on a lease may be sued

jointly 591

376. General rule as to the liability of the grantor 592

377. Surety's liability upon a renewal of lease 593

378. The discharge or release of the surety 594

TABLE OF CONTENTS. XIX

CHAPTER XVII.
THE COVENANTS OF THE LEASE.

§ 379. Definitions and general conditions 599

380. The language by which, a covenant is created 6a2

381. The construction of covenants in leases G04

382. What are the usual and proper covenants GOG

383. Whether covenants are joint or several 608

384. Dependent and independent covenants GIO

385. The enforcements of negative covenants 611

386. The liability of the i>arties to a covenant and of their as-

signee GlU

387. Covenants running with the land 614

388. The liability of the personal representatives of the coven-

antor 619

389. Covenants and conditions distinguished 619

390. Whether conditions are subsequent or precedent 623

391. The construction of a provision for a forfeiture 625

392. The enforcement of a forfeiture after a tenant has become

a vendee 627

393. The necessity for the notice of a forfeiture 628

394. The effect of a forfeiture upon the, lease 629

395. The effect in general of failure to pay rent 632

396. The necessity for a demand by the lessor in order to work

a forfeiture 633

397. Waiver of demand for the rent 635

398. The entry of the landlord for the purpose of reletting. . . . 636

399. Demand for payment of the rent; when and how made by

the landlord G37

400. Who may exercise the right to re-enter 639

401. The lessee cannot take advantage of a forfeiture 641

402. The waiver of a forfeiture by the lessor 644

403. The rent received after a forfeiture 646

404. The payment of the rent to a landlord after an action of

ejectment or other action by a landlord for the posses-
sion 650

405. Waiver may be implied from other facts than the accep-

tance of the rent 653

406. When the payment of subsequent rent does not waive a

forfeiture 655

407. Waiver by silence and delay 656

408. The waiver of a continuous breach of a condition 659

409. A forfeiture caused by a breach of a covenant to repair.. 661

410. The effect of a tender of rent 663

411. Relief against forfeiture at common law 664

412. Equitable relief against forfeiture 665

XX T.VBLE OF CONTENTS,

CHAPTER XVin.

THE RIGHTS OP THE TENANT TO POSSESSION-

§ 413. The tenant's right to possession of the premises 671

414. The lease of an unfinished building 674

415. The entry of the tenant before the commencement of the

term 676

416. The remedy of the lessee for the failure of the lessor to

give him the possession 676

417. Unlawful detainer against the occupant 677

418. The rights of the landlord against third persons during

the term 678

419. The landlord's remedy for the diversion of natural waters 6S3

420. The right of the landlord to timber severed during the

term 684

421. The tenant's right to bring an action of trespass against a

stranger 685

422. The right of a lessor at will to maintain trespass 688

423. The delivery of the possession of a part of the premises. . 691

424. Placing "to let" signs upon the premises 692

425. The evidence and the pleadings 69S

426. The measure of the tenant's damages for a failure by the

landlord to deliver possession 693

427. The covenant of quiet enjoyment, when implied 697

428. "What constitutes a breach of the covenant of quiet enjoy-

ment 699

429. Liability on the covenant for the acts of strangers 700

430. The foreclosure of a mortgage as a breach of the covenant 701

431. Election of remedies by the tenant 702

. 432. The measure of damages for the breach of a covenant of

quiet enjoyment 702

433. The rights of the parties to the lease as against one who

nxaintains a nuisance 704

CHAPTER XIX.
THE TENANT'S WASTE.

§ 434. Definition of "waste." 706

435. The common-law rule as to waste by tenants 708

436. The implied covenant by a lessee not to commit voluntary

waste 709

437. The opening of mines by a tenant 710

438. Leases made without impeachment of waste 711

439. Alterations by the tenant constituting voluntary waste... 712

440. Waste by a tenant of farm land 714

441. The rule in Maryland as to waste by a tenant 719

TABLE OF CONTENTS. Xxi

442. Persons liable for waste 720

443. Tenant's liability for waste committed by others 721

444. Waste committed by a sub-tenant 722

445. The landlord's remedy by injunction 723

446. The remedy by an action for damages 725

447. The waiver of the right of the landlord to sue for waste. . 726

CHAPTER XX.

THE USE OF THE PREMISES BY THE TENANT.

§ 448. The general rule as to the use of the premises by the

tenant 729

449. A covenant restraining use to one purpose does not prevent

use for other proper purposes 732

450. A covenant restricting the premises to use as a private

dwelling or residence 736

451. Covenants against carrying on trade or business in the

premises 738

452. Covenants against particular trades 740

453. Covenants by the lessor against carrjing on competing

business 741

454. Covenants forbidding the use of the premises for offensive

trades 746

455. Covenants against the sale of liquors on the premises.... 748

456. The use of the premises by the lessee for hotel purposes.. 749

457. Restrictions as to the exhibition of advertising signs by

the tenants 752

458. Leases by organizations conducting camp meeting grounds 753

459. The restriction of the occupancy of the premises to partic-

ular persons 755

4C0. Injunction by the landlord to restrain a prohibited use of

the premises by the tenant 756

461. The implied covenant by a farm tenant for good hus-
bandry 759

462.- Evidence to prove what is good husbandry 762

463. Covenants regulating the use and cultivation of a farm by

the tenant - 762

464. A covenant In a lease of a fann to consume all fodder on

the land 763

465. An injunction to restrain the breach of a covenant in a

lease of a farm 764

466. Estoppel on the landlord to recover for improper use of

premises 765

467. The obligation of the assigns and sub-tenants under cove-

nants of the lessee restricting the use of the premises. . . 767

468. Storage of combustibles in the premises 771

469. The lease of premises for use as a house of prostitution.. 771

Xxii TABLE OF CONTENTS.

470. Leases of premises for the sale of intoxicating liquors 773

471. The use of the premises as a gambling house 775

472. The knowledge of the lessor that the premises are to he

used for an immoral or illegal purpose 776

473. The leasing of premises for immoral purposes a crime.. 777

474. Criminal liability of the landloi*d 779

475. The construction of a statute providing for the equitable

jurisdiction of leases for gambling purposes 779

CHAPTER XXI.

THE RESPECTIVE RESPONSIBILITIES AND RIGHTS OF THE
PARTIES AS TO THE CONDITION OF THE PREMISES.

§ 477. The fitness of the premises 782

478. The distinction between unfurnished and furnished dwel-

lings and rooms 784

479. Fraudulent misrepresentations and concealment of defects 788

480. The responsibility of the landlord for a nuisance 792

481. The drainage of surface water 794

482. Contagious diseases 795

483. Defective plumbing and water supply 796

484. The joint liability for nuisance of the lessor and lessee. . . . 798

485. The repairs of that portion of the premises which is in

the exclusive control of the lessor 799

486. The negligence of the landlord in making repairs 801

487. The landlord's liability in the case of apartment buildings

and flats 803

488. Knowledge or notice of the defects by the landlord 804

489. The liability of the landlord for the condition of the out-

side walls, roofs and cornices 806

490. The responsibility for injuries caused by ice and snow fall-

ing from the roof 808

491. Falling sign under the control of the landlord 809

492. The landlord's duty to light halls and stairways 810

493. The landlord's liability for halls and stairways 812

494. The landlord's liability for the condition of elevators used

by the tenants and others 817

495. Use of common hallways or stairs by a tenant is not con-

tributory negligence 822

490. Snow and ice accumulating in pas.sage ways 822

497. The common use by the tenants of a yard of an apartment

house 823

498. Defective coal hole covers and cellar gratings 824

499. The use of gas, natural or artificial, by the landlord 828

500. Negligence in the care of steam heating apparatus and

chimneys 829

501. The negligence of the landlord as regards falling ceilings. 831

TABLE OF CONTENTS. Xxiii

502. The landlord's liability to a member of a lodge which is his

tenant 832

503. The contributory negligence of the tenant 833

504. Repairs by the landlord or his agent before or after the

accident 835

505. The liability of a tenant for negligence 836

506. Liability of tenants to one another for negligence 837

507. The liability for damages to a tenant on a lower floor by

the overloading of an upper floor 839

508. Injuries caused by overflow of water on upper floor 839

509. The tenant's liability for fire 843

CHAPTER XXII.

THE DUTIES OF THE PARTIES TO REPAIR.

5 510. The respective duties of the parties to the lease to make

repairs 846

511. No implied covenant by the landlord to repair 847

512. Statutory provisions imposing the duty to repair on the

landlord 851

513. Repairs and alterations in compliance with municipal reg-

ulations 853

514. The landlord's promise to repair made during the term 855

515. The landlord's liability on his covenant to repair, 857

516. The landlord's right to notice of the necessity for repairs 860

517. The lessor's right of entry on the premises to make re-

pairs 862

518. The negligence of the landlord in voluntarily making re-

pairs 804

519. Repairs by the landlord as a condition precedent to the oc-

cupation of the premises and payment of rent by the
tenant 867

520. A covenant by the landlord to repair farm fences 869

521. The landlord's covenant to keep an elevator in constant re-

pair 871

522. The landlord's covenant to rebuild 871

523. The lessor's liability to the servants of a lessee 872

524. The landlord's liability to the tenant for repairs made by

the latter 873

525. The remedies of a tenant for the failure of his landlord to

repair 876

526. Measure of damages on breach of a covenant by the lessor

to repair 878

527. The lessor's defense 880

528. A covenant to repair— What is includes SSI

529. Covenants to repair run with the land SS4

530. The construction of a covenant to keep in repair by a ten-

ant 885

XXIV TABLE OP CONTENTS.

■ 531. Notice by the landlord to the tenant to repair 889

532. The extent of the tenant's express obligation to repair... . 891

533. The tenant's covenant to return premises in condition as

he received them 892

534. When an action on a covenant to surrender in good condi-

tion or good repair accrues 897

535. The exception of ordinary wear and tear 899

536. The construction of the phrase "damages by the elements." 900

537. Exception in covenant of accident or inevitable accident. . 902

538. The tenant's covenant to deliver up a farm in good condi-

tion 905

539. The making of alterations by a tenant may be a breach of

of a covenant to repair 907

540. Repairs to be approved by the landlord 908

541. The right of the landlord to recover from a tenant who

has agreed to make repairs 909

542. Covenants by the lessee to erect improvements 909

543. The tenant's conditional covenants to repair 911

544. The character of the building erected by the lessee 912

545. The rights of a sub-tenant under a covenant to repair made

by the original lessor 913

546. The measure of damages for the lessee's failure to repair

or leave premises in good condition 913

547. Evidence in actions on covenants to repair 914

548. Rules of pleadings 915

549. The duty of the landlord to build and repair fire escapes. . 915

CHAPTER XXIII.

THE ESTOPPEL TO DENY THE TITLE.

§ 550. The general rule as to the tenant's estoppel 920

551. Necessity for the surrender of the possession by the tenant 922

552. When the surrender of the premises by the tenant is un-

necessary 923

553. The tenant not having received possession is not estopped 924

554. After an eviction there is no estoppel 926

555. A lease obtained by fraud or mistake 927

556. Misrepresentation by the lessor of his title 930

557. A tenant is not estopped as to a stranger 931

558. No estoppel where leases are illegal or contrary to public

policy 932

559. The tenant may show the expiration of the landlord's title 934

560. In what action the estoppel may be pleaded 937

561. To what matters the estoppel extends 939

562. The estoppel is applicable to a tenancy at will 940

563. In whose favor the estoppel will operate 940

564. Upon whom the estoppel is binding 943

TABLE OF CONTENTS. XXV

565. The rights of a person obtaining the possession by collu-

sion 947

566. The estoppel as to sub-tenants 948

567. The vendee, in possession as a tenant is estopped 949

568. The tenant holding over 950

569. The tenant not estopped as to land of his landlord not in-

cluded in the case 951

570. Leases created by estoppel 952

571. The general rule as to the purchase of outstanding encum-

brances by the tenant 953

572. The purchase by a tenant of a tax title to the premises. . 954

573. The general rule as to the adverse possession of the land-

lord 957

574. Tacking possession of several tenants 960

575. Encroachments by a tenant on the land of strangers to the

lease 961

576. The creation of easements by the lessee 963

577. The effect of a disclaimer by the tenant 964

578. The attornment of a tenant to a stranger 967

579. What constitutes an actual ouster by the tenant 968

580. What constitutes adverse possession by the tenant as

against his landlord 971

581. The right of the landlord to become a party in an action

of ejectment against his tenant -^973

582. When a landlord of a tenant who is a defendant in eject-

ment may be ousted 975

582a. The operation of a judgment in ejectment upon the tenants

of the defendant 976

CHAPTER XXIV.

THE OPTION OF A TENANT TO PURCHASE THE PREMISES.

583. The tenant's option to purchase — General considerations.. 977

584. The irrevocable character of an option 980

585. The mutuality of the option 981

586. The purchase price to be paid by the lessee 983

587. The option to purchase in the tenant, if not otherwise dis-

posed of, or at price offered by any other person 986

588. The time within which the option must be exercised 987

589. The performance of conditions precedent by the lessee 991

590. The necessity for notice by the lessee to the lessor 993

591. The effect of the exercise of the option 994

592. TATien the lessee's option to purchase passes to his assignee 996

593. The passing of the right of an election from the lessor

to the lessee 999

594. The disposition of the insurance money when premises

are destroyed during the term 999

XXvi TABLE OF CONTENTS.

595. Equitable relief in the cases of options to purchase — Rem-
edy of the tenant by specific performance 1000

597. Damage for the breach of a covenant to permit the lessee

to purchase the premises 1003

CHAPTER XXV.

THE TAXES AND INSURANCE.

§ 598. The liability of the lessor for taxes 1005

599. The taxation increased by the tenant's improvements 1007

COO. The landlord's liability for water rates 1008

601. The construction of a covenant to pay taxes 1012

C02. Covenant to pay taxes not one of indemnity 1013

603. The time of the levy, assessment or payment 1014

604. The time for the payment of the taxes 1016

605. Mode of the payment of the taxes by the lessee 1017

606. The validity of the taxes 1017

607. The exemption of the premises from taxation 1018

608. The aportionment of taxes between lessor and lessee 1019

609. The liability of an assignee or an undertenant to pay the

taxes 1020

610. Extent of the assignee's liability for the taxes 1021

611. Whether a covenant to pay taxes binds the lessee to pay

assessments for local improvements 1022

612. The lessee's covenant to pay assessments 1026

613. The payment of the taxes by the mortgagee of the leasehold 1030

614. The forfeiture of the lease for a breach of a condition or a

covenant by the lessee to pay the taxes 1031

615. Equitable relief from forfeiture for non-payment of taxes

by the tenant 1033

616. The landlord's lien for unpaid taxes 1033

617. The measure of the landlord's damages for the lessee's de

fault in paying the taxes 1034

618. Personal liability to a judgment for taxes 1034

619. The tenant's covenant to insure 1035

620. The tenant's covenant to pay increased insurance 1037

621. Forfeiture in case of a breach of covenant to insure 1038

622. "When the covenant to insure runs with the land 1040

623. The measure of the damages for a failure to insure 1041

CIIArTER XXVI.

THE ASSIGN ' ' NT OP THE IJ5ASE.

§ 624. The general rule as to tenant's power to assign or sublet. . 1044
625. Statutes requiring the consent of the landlord to the ten-
ant's assignment or subletting 104G

TABLE OF CONTENTS. XXVii

626. Sublease and assignment distinguished 1047

627. What constitutes an assignment or a sublease 1050

628. Whether a prohibition of assignment or subletting is a

condition or a covenant 1054

629. The form of the consent of the lessor to an assignment or

underletting 1056

630. A waiver of a breach not to assign 1057

631. The effect of an assignment by the lessee for the benefit of

creditors 1060

632. Covenant not to assign except to a person of responsibility

and respectability 1063

633. The effect of an involuntary assignment 1065

634. Who may take advantage of a breach of a covenant not to

assign 106?

635. The presumption of an assignment from a stranger being

in possession of the premises 1068

636. Agreements to assign leases 1070

637. The formal requisites of an assignment of a lease 1072

638. The validity of an assignment 1074

639. The knowledge of the contents of the lease by the assignee 1074

640. The implied warranty of the title by the assignor of the

lease

1076

641. The assignee's rights as against the lessor 1078

642. The assignee's liability upon the covenants of the lease. . . 1079

643. The rights of the landlord to distrain after the assignment

by the tenant lOgg

644. The liability of the assignee to his assignor 1084

645. The assignee's liability to the lessor for the rent 10S5

646. The liability of the assignee not In possession for rent 1087

647. Express covenants in the assignment 1088

648. The assignee's covenants to indemnify the assignor 1089

649. The effect of an assignment by the assignee 1090

The liability of the assignor for the rent after an assign-

650

ment

1092

651. The liabilities and rights of an undertenant as regards

the original lessor 2095

652. The knowledge by an undertenant of the covenants and

agreements which are binding on his lessor 1098

653. The nature and operation of a mortgage of the lease 1099

654. The assignment of a lease as security 1103

655. The renewal of a lease for the benefit of a mortgagee 1103

656. The liability of an equitable mortgagee or assignee to the

lessor 1104

657. The recording assignments of leases 1107

658. The recording of mortgages of leasholds 1108

659. The assignment of subsequently accruing rents as distinct

from the assignment of the reversion 1111

660. The rights and remedies of an assignee of the rents against

the tenant 1114

c

XXVlll TABLE OF CONTENTS,

661. The f oiin of an assignment of rents 1117

662. Priorities between the assignee of the rent and the as-

signee of the reversion 1118

663. The duty of the assignee for creditors to lease the real

property over which he has control 1118

664. The liability of the estate of a bankrupt lessee for the rent 1119

665. The acceptance of a lease by a trustee in bankruptcy 1120

66G. The duties of a receiver as a tenant 1122

667. The powers and duties of a receiver as a landlord 1123

668. The rights of a receiver in foreclosure to the rent 1126

CHAPTER XXVII.
THT EVICTION OP THE TENANT.

§ 669. The scope of this chapter 1128

670. Eviction defined and classified 1129

671. Trespass and eviction distinguished 1131

672. The necessity of a legal possession in the tenant 1134

673. The intention of the landlord 1135

674. Actual eviction 1137

675. An action by the landlord to recover possession 1137

676. Constructive eviction arising from the interference with

the tenant's beneficial use of the premises 1138

677. Illustrations of constructive eviction 1140

678. The lessor's failure to heat the premises properly 1142

679. The deprivation of easements 1145

680. The loss of the use of an elevator 1147

681. Shutting off water supply 1148

682. Presence of vermin and noxious smells 1149

683. The failure of the landlord to repair 1150

684. The interference by the landlord with sub-tenants 1154

685. The entry of the landlord to rebuild or to repair 1154

686. Use of adjoining lots 1117

687. The acts of strangers are not usually an eviction 1160

688. The acts of the municipal or public authorities 1162

689. Whether annoyances caused by other tenants are an evic-

tion 1165

690. Objectionable occupancy of adjoining premises by peimis-

sion of the landlord 1167

691. The actions of a servant or agent of the landlord 1169

692. An eviction by a paramount title 1171

693. The leasing ot the premises to a stranger 1175

694. An abandonment of the premises by a tenant 1175

695. The eviction of a tenant from a part of the premises.... 1177
69G. The demand and refusal of restoration to possession 1182

697. The effect of an eviction 1182

698. The measure of the damages for an eviction 1184

699. Limitation on an action for an eviction 1187

TABLE OF CONTENTS. Xxix

700. Equitable jurisdiction to restrain an eviction 1188

701. The right of the landlord to a bill of particulars 1189

702. The landlord's failure to deliver possession 1190

CHAPTER XXVIII.

THE SURRENDER OF THE LEASE.

703. Tlie surrender of a lease defined ; 1192

704. The surrender of a written lease; when required to be in

writing 1193

705. The language of a surrender in writing 119G

706. Surrender by implication or operation of law 1198

707. The execution of a new lease by the parties to the old lease

as a surrender 1200

708. Setting aside a surrender in writing as obtained by fraud. . 1204

709. The effect of a surrender on the undertenant 120.5

710. The delivery of the keys as evidence of a surrender 1206

711. The surrender of a portion of the premises 1211

712. The acceptance of an assignee of the lease as a new tenant 1211

713. The effect of a re-letting by a landlord to a stranger 1213

714. A surrender by or to an agent of the landlord, or the tenant 1218

715. A surrender by a tenant becoming a vendee 1219

716. Payment to be made by the landlord on a surrender 1220

717. A new lease made with undertenants 1221

718. The possession of the premises in the lessee is necessary

for a valid surrender 1221

719. The assent of the lessor to the surrender 1222

720. The tenant in possession after a delivery of the keys 1223

721. A surrender made by joint lessees 1224

722. To whom a surrender must be made 1225

723. A surrender upon a condition 1226

724. The consideration for an agreement in writing to surren-

der 1226

725. The merger of the term with the reversion 1228

726. The doctrine of merger is applicable only to concurrent es-

tates 1232

727. When a merger does not take place 1233

728. The resumption of the possession by a landlord as an ac-

ceptance of a surrender 1234

729. The destruction of the written lease 1237

730. The effect of a surrender upon the lease 1238

CHAPTER XXIX.
THE DUTIES OF THE PARTIES AS REGARDS FIXTURES.

732. The topic of fixtures generally 1242

733. Common law as to chattels annexed 1243

734. General rules for determining what are fixtures 1245

XXX TABLE OP CONTENTS.

735. The intention of the parties to the lease 1247

736. The modem rule as to trade fixtures 1249

738. Machinery and mechanical apparatuses as trade fixtures. . 1254

739. Domestic fixtures 1256

740. Farming fixtures belonging to tenants 1258

741. Personal property which is held by a tenant under a condi-

tional bill of sale 1261

742. Chattels used by a tenant in improving or repairing the

premises 1261

743. The injury to the premises by the removal 1262

744. The necessity for removing fixtures during the term 1264

745. Exception to the rule that fixtures must be removed during

the term 1268

746. Appraisal or arbitration to determine the value of fixtures. 1271

747. Meaning of end of the term 1275

748. The lessor's option to renew or pay for the lessee's improve-

ments 1276

749. A landlord's agreement to pay for the fixtures and improve-

ments of the tenant 1277

750. Compensation to the lessee for his improvements in case of

the sale of premises 1279

751. The meaning of the word "improvements" 1280

752. The lessor's covenant to pay for improvements runs with

the land 1283

753. Conditions precedent to the right of the tenant to remove

structures erected by him 1285

754. The taking of a new lease by the tenant 1286

755. Covenants which give the landlord a lien for his rent on

biuldings of a tenant 1290

756. The lessee's lien for the value of his improvements 1291

757. Improvements by the landlord prior to the entry of the

tenant 1293

758. The rights of an assignee or mortgagee of the tenant 1293

759. The tenant's sale of his fixtures when within statute of

frauds 1295

760. The rights of an assignee and mortgagee of the landlord. . . 1295

761. The liability of a landlord for personal property of his

tenant left on the premises at the expiration of the lease ]299

762. The remedies of the parties 1299

703. The measure of damages to the tenant for the conversion

of his chattels by the landlord 1301

764. The measure of the damages for tiie breach of the land-

lord's covenant to make improvements 1302

765. The proof of a custom in respect to fixtures 1303

766. The right of a tenant who has covenanted lo surrender in

good condition to remove his improvemnts 130?.

TABLE OP CONTENTS. XXXI

CHAPTER XXX.

THE TENANT'S EMBLEMENTS.

§ 7C7. Emblements defined; the right of the tenant to emblements 1305
768. The determination of an uncertain term by the act of the

tenant 1308

7G9. The tenant's right to remove crops where his term is cer-
tain 1311

770. The proof of custom in relation to the tenant's crops 1313

771. The distinction between emblements and the cost of pre-

paring the land 1315

772. The right of the incoming tenant to growing crops 1315

773. The tenant's title to the crops during the term 1317

774. Title to crops after severance during the term 1321

775. A covenant by the tenant not to remove crops 1321

776. The rights of a sub-tenant to emblements 1322

777. The right of a purchaser of a growing crop 1323

778. Title to crops as against mortgagee and purchaser at a fore-

closure sale 1324

779. The knowledge by a tenant of an action to foreclose his

landlord's title 1326

780. Title to crops as against judgment creditors 1327

781. The tenant's title to an increase of live stock on the prem-

ises 1329

782. The effect on emblements of the forfeiture of a lease by the

breach of a condition 1330

782o. The right of an outgoing tenant to the manure made on a

farm 1331

783. The right to manure which was made on non-agricultural

land 1334

784. The tenant's covenant as to the disposal of the manure. . . 1334

785. Trees growing upon the soil during the tenancy 1335

786. The remedy of the landlord 1337

787. The criminal element in the tenant removing a crop 1338

CHAPTER XXXI.

THE DESTRUCTION OF THE PREMISES DURING THE TERM.

§ 788. Effect of destruction of the premises by fire on tenant's lia-
bility to pay rent 1339

789. The destruction of the premises which are a floor or apart-

ment 1342

790. The tenant's right to equitable relief 1344

791. The surrender of the premises by the tenant 1346

792. The construction of express exceptions to the common law

rule 1348

793. The effect of a covenant by the landlord to repair or build 1349

XXXll TABLE OP CONTENTS.

794. The destruction of the premises occurring before the entry

by the tenant 1351

795. Deprivation of use of the premises by casualties of war 1352

796. General rules which are observed in construing the statute 135S

797. What constitutes unfitness for occupancy under the New

York statute 1354

798. The accrual of the rents 1357

799. Negligence or fault of the tenant 1358

800. The destruotion must be sudden and unexpected to bring

the case under the statute 1359

801. Waiver of the statutes by the parties 1360

CHAPTER XXXII.

THE OPTION TO RENEW THE LEASE.

802. The scope of the chapter 1361

803. The extension of a lease and a renewal distinguished.... 1362

804. The unilateral character of a covenant for a renewal 1365

805. Stipulations to renew. When they are void for uncertainty 1367

806. The terms and covenants necessary to be inserted in the re-

newal lease 1308

807. The invalidity of a clause permitting indefinite renewals. . 1373

808. Time when an option for a renewal of a lease must be exer-

cised 1376

809. The necessity for and the character of notice 1377

810. The specific performance of a covenant to renew 1382

811. Waiver by the lessee of his privilege to renew 1385

812. Conditions precedent to a renewal 1388

813. Waiver of a breach of a covenant in the old lease 1389

814. The rent of a renewal to be determined by appraisal 1389

815. The covenant to renew runs with the land 1391

815a. The tenant's equitable right to a reversal 1892

816. The right of the personal representative of the lessee to a

renewal 1393

817. The exclusive option in the landlord to renew the lease. . . . 1393

818. Option of renewing le^se or paying for tenant's improve-

ments 1394

819. A renewal by an endoisement on the lease 1395

CHAPTER XXXIII.

THE LIEN OF THE LANDLORD FOR RENT AND ADVANCES.

820. General rules as to liens by statute 1400

821. When the relationship of landlord and tenant must be

proved 1402

822. Lien for rent created by the lease 1403

823. The construction of liens created by the lease 1405

TABLE OF CONTENTS. XXX ill

824. When the lien first attaches 1408

825. The necessity for filing or recording 140!)

826. The assignability of a landlord's lien 1410

827. The nature of the indebtedness 1413

828. What will constitute an adva-ncement to the tenant within

the statute 1415

829. To what property the statutory lien attaches 1419

830. The inclusion in the landlord's lien of the goods of sub-

tenants 1423

831. The ownership and possession of the property subject to

a lien 1424

832. The removal and sale of the property which is subject to

the lien 1425

833. The distinction between the common law and equitable

doctrines regarding liens on after acquired property 1426

834. The liability of bona fide purchasers for value of a crop.. 1429

835. Priorities between liens of the landlord and liens of chat-

tel mortgagees 1433

836. The renewal of a lease giving a lien which is prior to a

mortgage 1436

837. The priority of the landlord's lien over the claims of third

persons for supplies 1437

838. Priorities as between the landlord's lien and the lien of an

attaching creditor 1439

839. General rule as to the landlord's priority over an execu-

tion creditor 1440

840. The extent of the priority of the landlord's lien over that

of an execution creditor 1442

841. Priority of a factor's lien over that of a landlord 1445

842. Exemption from execution 1446

843. The subordination of mechanics' liens to rent liens 1447

844. The subordination of the title of a vendor on condition 1448

845. The taking of additional security for the rent as a waiver

of the lien 1449

846. The waiver of lien by the landlord by" conduct generally. .1450

847. The waiver of the lien by an agent _,...1453

848. The termination of the lien 1454

849. The remedy of the landlord against one purchasing prop-

erty subject to his lien 1455

850. Action by the landlord in conversion or assumpsit 1457

851. The statutory mode of enforcing a lien 1459

852. The remedy of the purchaser of chattels subject to the

lien, against the tenant 1461

853. Injunction to protect the lien of the landlord 1431

854. Grounds for granting an attachment 1464

855. The effect of an attachment 1466

85B. The cumulative character of the remedy by attachment 1466

857. What property may be attached by the landlord 1467

Table of Cases Cited.

[EEFEEENCES ABE TO PAGES.]

Abadie r. Berges (41 La. Ann.

281), 1165, 1378.
Abby V. Billups (35 Miss. 618), 63,

882,892.
Abby V. Shiner (5 Tex. Civ. App.

287), 578.
Abbey, etc. Ass'n v. Welland (48

Cal. 614), 111.
Abbott V. Boswortb (36 Ohio St.

605), 335.
Abbott V. Cromartie (72 N. C.

292), 929.
Abbott V, Parsons (3 Burr. 1807),

1201.
Abbott V. Seventy-six Land & Wa-
ter Co. (87 Cal. 323), 1370.
Abercrombie v. Redpath (1 Iowa,

111), nil.
Abeel v. Radcliffe (13 Johns. (N.

Y.) 297), 561, 1367.
Aberdeen Coal Co. v. Evansville

(14 Ind. App. 621), 1235.
Abingdon v. Butler (2 Cox, 260),

473.
Abington v. Steinberg (86 Mo.

App. 639), 1460.
Abraham v. Nicrosi (87 Ala. 173),

1422,1457.
Abraham v. Tape (60 Md. 317),

1080.
Abrams v. Sheehan (40 Md. 446),

1117,1434.
Abrams v, Taylor (24 111. 102),

549.
Abrams v. Watson (59 Ala. 524),

564, 666, 669, 687, 697, 700.

Academy of Music v. Hackett (2

Hilt. (N. Y.) 217), 638.
Accidental D. Ins. Co. v. Mac-

Kenzie (5 L. T. 20), 926.
Accles V. Mills (67 L. J. P. C. 25

[1898] A. C. 360), 617.
Ackland v. Lutley (9 Ad. & E.

879), 347.
Acocks V. Phillips (5 Hon. 183),

634.
Acquackanonk Water Co. v. Wat-
son (29 N. J. Eq. 366), 431.
Acton V. Blundell (12 M. & W. 348,

349), 432.
Adair v. Bogle (20 Iowa, 238), 695.
Adams, In re (124 Fed. Rep. 142),

1120.
Adams v. Adams (4 Watts (Pa.)

160), 49.
Adams v. Bigelow (128 Mass. 365),

539.
Adams v. Brevieton (3 H. & J.

(Md.) 124), 717.
Adams v. Burke (21 R. I. 126),

1093.
Adams v. Cairns (85 L. T. 10),

155.
Adams v. Clark r2 W. N. C. (Pa.)

429), 748.
Adams v. Cohoes (127 N. Y. 175),

156, 158, 181.
Adams v. Fletcher (17 R. I. 127),

828.
Adams v. Gibney (4 M. & P. 491),

606.
Adams v. Goddard (48 Me. 212),

1040, 1205, 1294, 1301.

XXXVl

T.iBLE OF CASES CITED.

[references are to pages.]

Adams v. Kensington Vestry (54

L. J. Ch. 87), 996.
Adams v. McKesson's Ex. (53 Pa.

St. 81), 308.
Adams v. Medsker (25 W. Va. 127),

342.
Adams v. Power (52 Miss. 828),

100.
Adams v. Smith (19 Nev. 259),

1100,1306.
Adams v. State (87 Ala. 89), 311.
Adams v. Werner (120 Mich. 432),

1131,1156.
Aderholds v. Blumenthal (95 Ala.

66), 1432.
Adler v. Lowenstein (102 N. Y.

Supp. 492), 489.
Adler v. Mendelson (74 Wis. 464),

1224.
Adriance v. Hafkemeyer (39 Mo.

134), 558.
Adsit V. Kaufman (121 Fed. Rep.

355), 573.
Agar V. Winslow (123 Cal. 587),

1136,1142.
Agard v. King (Cro. Eliz. 775),

130.
Agate V. Lowenbein (57 N. Y. 604),

712.
Ahern v. Steele (115 N. Y. 203),

792, 805.
Aiken v. Blaisdell (41 Vt. 655),

776.
Aikens v. Stadell (9 Kan. App.

298), 1425.
Aikin v. Perry (119 Ga. 260), 847.
Ainsworth v. Ritt (38 Cal. 89),

1342. ■
Airey v. Weinstein (54 Ark. 443),

1435.
Alabama, etc. Co. v. Oliver (78

Ala. 158), 386, 1118.
Alabama Land Co. v. Kyle (99 Ala.

474), 960.
Albans v. Battersby (47 L. J. Q. B.

571), 749.

Albert v. State (66 Md. 337), 794,.

805.
Albin V. Lord (39 N. H. 196), 24.
Albin V. Riegel C40 Ohio St. 339),

1328.
Albright v. Mills (86 Ala. 324),"

1317.
Alcorn v. Morgan (77 Ind. 184),

156.
Aklerson v. Marshall (7 Mont.

288), 920, 965.
Alderson v. Miller (15 Gratt. (Va.)

279), 924.
Aldred's Case (9 Rep. 586), 409.
Alexander v. Carew (13 Allen

(Mass.) 70), 678.
Alexander v. Bailey (2 Lea

(Tenn.) 639), 904.
Alexander v. Bland (3 Tenn. 431)^

349.
Alexander v. DeKernel (81 Ky.

345), 351.
Alexander v. Dorsey (12 Ga. 12),

1155,1343.
Alexander v. Gardner (96 S. W.

Rep. 818), 274.
Alexander v. Gibbon (118 N. C.

796), 961.
Alexander v. Jameson (5 Binn.

(Pa.) 238), 332.
Alexander v. Zeigler (36 So. 536),

315.
Alexandria Canal Co. v. Swann (5

How. 83), 63.
Alfred v. Vickery (Car. & M. 280),

170, 174.
Alger V. Kennedy (49 Vt. 109),

1142,1152.
Alleman v. Vink (28 Ind. App.

142), 139.
Allen V. Anthony (1 Mer. 287),

497.
Allen V. Bartlett (20 W. Va. 46),

140.
Allen V. Bates (3 L. J. Ex. 39),

524.

TABLE OF CASES CITED.

XXXVU

[references are to pages.]

Allen V. Bryan (5 Bar. & Cres.

512), 560, 1112.
Allen V. Calvert (2 East, 376), 241.
Allen V. Chatfield (8 Minn. 435),

920.
Allen V. Culver (3 Denio (N. Y.)

290), 491, 867, 877, 882, 884, 1080.
Allen V. Dent (4 Lea (Tenn.) 676),

1014, 1032.
Allen V. England (3 F. & F. 49),

301.
Allen V. Fosgate (11 How. Pr.

218), 331.
Allen V. Gales (74 Vt. 376), 1114.
Allen V. Hall (61 Neb. 256), 491,

922,1111.
Allen V. Hill (Cro. Eliz. 238), 229.
Allen V. Hooker (25 Vt. 137), 760.
Allen V. Houston Ice & Brewing

Co. (97 S. W. Rep. 1063), 1419.
Allen V. Jaqulsh (21 Wend. 628),

156.
Allen V. Kelly (18 R. I. 197), 774.
Allen V. Macon, D. & S. R. Co. (33

S. E. Rep. 696), 579.
Allen V. Mansfield (82 Mo. 68S),

195.
Allen V. Mooney (130 Mass. 155),

1249.
Allen V. Paul (24 Gratt. (Va.)

332), 958, 965, 966.
Allen V. Pryor (3 A. K. Marsh.

(Ky.) 305), 519.
Allen V. St. Louis, I. M. & S. R. Co.

(137 Mo. 205), 434.
Allen V. Scott (21 Pick. (Mass.)

29), 1115.
Allen V. Van Houten (19 N. J. L.

47), 49.
Allen V. Whetstone (35 La. Ann.

846), 361.
Allen V. Wooley (1 Blackf. (Ind.)

148), 1115.
Allison Mfg. Co. v. McCormick

(118 Pa. St. 519), 904.
Almy V. Green (13 R. I. 350), 776,

1093.

Alschuler v. Schiff (59 111. App.

51), 1222.
Alsup v. Banks (68 Miss. 664), 42,

1214,1215.
Alt V. Gray (67 N. Y. Supp. 411),

258,686.
Althorpe v. Wolfe (22 N. Y. 355),

843.
Alton V. Railroad Co. (19 C. B.

(N. S.) 213), 913.
Alve V. Henderson (16 B. Mon.

(Ky.) 131), 71.
Alwood V. Mansfield (33 111. 452),

920.
Alworth V. Gordon (81 Minn. 445),

150, 158, 174, 489.
Amelung v. Seekamp (9 Gill & J.

(Md.) 474), 724.
American Bonding Co. v. Pueblo

Inv. Co. (150 Fed. Rep. 17),

1013.1238.
American Express Co. v. Smith

(33 Ohio St. 511), 904.
American Ins. Co. v. Chicago R.

Co. (74 Mo. App. 89), 1054, 1070.
American Mortg. Co. v. Merrick

Const. Co. (100 N. Y. Supp. 561),

530.
American Mortgage Co. v. Sire (92

N. Y. Supp. 182), 1126.
American Strawboard Co. v. Halde-

man Paper Co. (27 C. C. A. 634),

742.
Ames V. Fletcher (17 R. I. 137),

825.
Ames V. Miller (65 Neb. 204), 393.
Ames V. Trenton Brewing Co. (56

N. J. Eq. 309), 1248.
Amick V. Brubaker (101 Mo. 473),

182, 191, 220.
Amory v. Kannofsky (117 Mass.

35), 1195, 1199, 1238.
Amsden v. Atwood (69 Vt. 527),

140, 460, 1185.
Amsden v. Floyd (60 Vt. 386), 221.
Amsley v. Woodward (6 B. & C.

579), 1058.

xxxvm

TABLE OP CASES CITED.

[REFEBENCES ABE TO PAGES.]

Anderson's Appeal (3 Barr. 218),

1443.
Anderson v. Ammonett (9 Lea

(Tenn.) 1), 1291.
Anderson v. Anderson (104 Ala.

428), 938, 950.
Anderson v. Brewster (44 Ohio St.

576), 234.
Anderson v. Brinser (129 Pa. St.

376), 497.
Anderson v. Chicago Marine & Fire

Ins. Co. (21 111. 601), 1180.
Anderson v. Connor (87 N. Y.

Supp. 449), 100.
Anderson v. Critcher (11 Gill & J.

(Md.) 450), 335, 390.
Anderson v. Darby (1 Nott & Mc-

Cord, 394), 10.
Anderson v. Dickie (26 How. Pr.

(N. Y.) 105), 794.
Anderson v. Hapler (34 111. 436),

685, 1300, 1336.
Anderson v. Henry (46 W. Va.

319), 1401.
Anderson v. Midland Ry. Co. (3

E. & E. 614), 192.
Anderson v. Miller (96 Tenn. 35),

771, 1098.
Anderson v. Miller (15 Gratt.

(Va.) 279), 930.
Anderson v. Nesmith (7 N. H.

167), 685.
Anderson v. Oppenheimer (49 L.

J. Q. B. 708), 1153.
Anderson v. Prindle (23 Wend.

(N. Y.) 616), 179.
Anderson v. Robbins (82 Me. 422),

539.
Anderson v. Steinrich (74 N. Y.

Supp. 920), 302.
Anderson v. Straub (98 111. 485),

1325.
Anderson v. Swift (106 Ga. 748),

1277.
Anderson v. Winton (137 Ala.

432), 457, 1180.

Anderton v. Milner (59 L. J. Ch.

765), 608.
Andrew v. Carlisle (4 Colo. App.

336), 337, 470.
Andrew v. Newcomb (32 N. Y.

417), 1320.
Andrew v. Stewart (81 Ga. o3),

1423.
Andrew v. Day Button Co. (132

N. Y. 348), 1255.
Andrews v. Erwin (25 Ky. Law

Rep. 1791), 262.
Andrews v. Hailes (2 El. & Black,

349), 961, 962.
Andrews v. Marshall Creamery

Co. (92 N. W. Rep. 706), 1378.
Andrews v. Minter (88 S. W. Rep.

822), 694.
Andrews v. Williamson (193 Mass.

92), 814.
Andrews Mfg. Co. v. Porter (112

Ala. 381), 1425.
Andrus v. Bradley-Alderson Co.

(117 Mo. App. 322), 871.
Angel V. Duke (44 L. J. Q. B. 78),

382.
Angell V. Randall (16 L. T. 489),

526.
Angres Boom Co. v. WTiitney (26

Mich. 52), 451.
Anheuser-Busch Brew. Ass'n v.

Peterson (41 Neb. 897), 40, 794.
Anthony v. New York P. & B. R.

Co. (162 Mass. 60), 391.
Anthony v. Smith (9 Humph.

(Tenn.) 508), 105.
Anton i v. Belknap (102 Mass.

193), 210, 1253, 1269.
Anzolone v. Paskusz (96 App. Div.

188), 456, 597.
Aperson v. Moore (30 Ark. 56, 58),

1426, 1428.
Appleton V. Ames (150 Mass. 34),

212, 223, 1295, 1240.
Api)leton V. Campbell (2 Car. & P.

347), 772.

TABLE OF CASES CITED.

xxxix

[references are to pages.]

Appleton V. Marx (102 N. Y. Supp.

2), 894.
Appleton V. O'Donnell (173 Mass.

398), 338, 519, 573.
Applewhite v. Nelms (71 Miss.

482), 1423.
Arbenz v. Exley (52 W. Va. 476),

140, 848, 1340.
Arbuckle v. State (32 Ind. 34),

1337.
Arcade Inv. Co. v. Gierlet (109 N.

W. Rep. 250), 178.
Arcade Realty Co. v. Tunney (101

N. Y. Supp.) 593), 524.
Arden v. Sullivan (14 Q. B. g32),

147, 196.
Ardesco Oil Co. v. Richardson (63

Pa. St. 162), 886.
Arding v. Economic Printing &

Publishing Co. (79 L. T. 420),

1030.
Ards V. Watkins (Cro. Eliz. 637),

541.
Ardsley Hall Co. v. Sirrett (86 N.

Y. Supp. 792), 1147.
Arent v. Bone (23 La. Ann. 387),

390.
Argall V. Pitts (78 N. Y. 239), 32.
Arguelles v. Wood (1 Fed. Cas.

520), 547.
Armsby v. Woodward (6 Barn. &

C. 519), 642, 645, 647, 1068.
Armstrong v. Maybee (17 Wash.

24), 883.
Arkwright v. Colt (2 Y. & Coll.

C. C. 4), 1041.
Armiger v. Clark (Bumb. Ill),

1382.
Armory Board, In re (29 Misc.

174), 57.
Armour Packing Co. v. Des Moines

Pork Co. (116 Iowa, 723), 1235.
Armstrong v. Penn. R. Co. (38 N.

J. Law, 1), 116.
Armstrong v. Walker (9 Lea

(Tenn.) 156), 1429.

Armstrong v. Wheeler (9 Cow.

(N. Y.) 88), 1093.
Arnold v. Bennett (92 Mo. App.

156), 679.
Arnold v. Bidgood (Cro. Jac. 318),

26,55.
Arnold v. Clark (45 N. Y. Super,

Ct. 252), 860.
Arnold v. Phillips (59 111. App.

213), 1400.
Arnold v. R. Rothschild's Sons Co.

(164 N. Y. 562), 248.
Arnold v. Skale (Noy. 149), 688.
Arnot V. Alexander (44 Mo. 25),

1368, 1382, 1391.
Arnson v. Spawn (2 S. D. 269),

682.
Arques v. Wasson (51 Cal. 620),

1404.
Arthur v. Bascon (28 Leg. Int.

284), 349.
Arthur v. Harty (40 N. Y. Supp.

1091), 1029.
Artt V. New York (28 N. Y. Su-
per. Ct. 248), 140.
Ascarete v. PfafE (78 S. W. Rep.

974), 1046.
Ashbrook v. Dale (27 Mo. App.

649), 772.
Ashby V. Ashby (59 N. J. Eq. 536),

1263.
Ashby V. Wilson (69 Law J. Ch.

47), 744.
Ashley V. Pease (1§ Pick. (Mass.)

268), 439.
Ashley v. Young (79 Miss. 129), 52.
Ashley v. Warner (11 Gray

(Mass.) 43), 192.
Ashton V. Golden Gate Lumber Co.

(58 Pac. Rep. 1), 937.
Aslin V. Summersett (1 B. & Aid.

135), 171.
Aspdin V. Austin (5 Q. B. 671),

603.
Astor V. L'Amoreux (4 Sandf. (N.

Y.) 524), 1090.

xl

TABLE OF CASES CITED.

[references are to pages.]

Astor V. Miller (2 Paige (N. Y.)

68), 1101.
Astor V. Turner Til Paige (N. Y.)

436), 28, 34.
Atchison, etc. R. Co. v. Morgan (42

Kan. 23), 1247.
Atherstone v. Bostock (2 Man. &

G. 511), 135.
Atkins V. Chilson (7 Mete. (Mass.)

298), 723.
Atkins V. Chilson (11 Mete.

(Mass.) 2), 663.
Atkins V. Sleeper (7 Allen (Mass.)

487), 348.
Atkinson v. Coatsworth (8 Mod.

30), 953.
Atkinson v. Dixon (96 Mo. 588),

1271.
Atkinson v. Morrison (3 Oreg.

332), 946.
Atlantic Dock Co. v. Leavitt (54

N. Y. 25), 729.
Atlantic Product Co. v. Dunn (55

S. E. Rep. 299), 1376.
Attaway v. Hoskinson (37 Mo.

App. 132), 1405.
Attersoll v. Stevens (1 Taunt.

183), 721.
Attoe V. Hemmings (2 Bulst. 281),

641.
Attorney General v. Stephens (6

De G., M. & G. Ill), 511.
Attorney General v. Tomline (43

L. T. Rep. 486), 962.
Atwood V. Norton (31 Ga. 507),

378.
Aubuchon v. McKnight (1 Mo.

312), 343.
Audenreid v. Hull (45 Mo. App.

202), 1466.
Auer V. Penn (99 Pa. St. 370),

1214.
Auer V. Vahl (129 Wis. 635), 785.
Auginbaugh v. Coppenheffer (55

I'a. St. 347), 702.
Aull Savings Bank v. Aull (80 Mo.

199), 573.

Ault Wooden-Ware Co. v. Baker

(26 Ind. App. 374), 293.
Austin V. Ahearne (61 N. Y. 6),

80,482.
Austin V. Field (7 Abb. Pr. N. S.

29), 1342.
Austin V. Harris (10 Gray (Mass.)

296), 1078.
Austin V. Hudson R. R. R. Co. (25

N. Y. 340), 722.
Austin V. Thomson (45 N. H. 113),

223, 579, 1053, 1096.
Austin V. Welch (72 S. W. Rep.

(Tex.) 881), 1435.
Austin V. Whitlock (1 Munf. (Va.)

487), 332.
Austin V. Wilson (46 Iowa, 362),

965.
Autrey v. Autrey (94 Ga. 579), 51.
Auworth V. Johnson (5 Car. & P.

239), 138, 851.
Auxvasse Milling Co. v. Cornet

(85 Mo. App. 251), 1460.
Avan V. Frey (69 Ind. 91), 693.
Averill v. Taylor (8 N. Y. 44), 244.
Avery v. Cheslyn (3 Ad. & El. 75),

1256.
Avery v. Dougherty (102 Ind.

443), 697, 699, 1132.
Avery v. New York Central & H.

R. R. Co. (7 N. Y. Supp. 341),

440.
Avery v. Scott (8 Exch. 500), 1271.
Aydlett v. Neal (114 N. C. 7), 369.
Aydlett v. Pendleton (114 N. C. 1),

369.
Aylet V. Dodd (2 Atk. 239), 765.

B.

Babcock v. Kennedy (1 Vt. 457),

30.
Babcock v. Scoville (56 111. 461),

543, 1087.
Backenstoss v. Stahler's Adm'r (23

Pa. St. 251). 1316, 1329.

TABLE OF CASES CITED.

Xli

[REFERENCES ARE TO PAGE^.]

Backhouse v. Mohun (3 Swanst.

434), 982.
Backus V. Sternberg (59 Minn.

403), 152.
Bacon v. Bowdoin (22 Pick.
(Mass.) 401), 243, 244, 250, 397,
1365.
Bacon v. Brown (9 Conn. 334),

139.
Bacon v. Carr (112 Iowa, 193),

1454.
Bacon v. Howell (60 Miss. 362),

1403.
Bacon v. Park (19 Utah, 246),

1032.
Bacon v. Parker (137 Mass. 309),

379,382.
Bacon v. Taylor (Kirby (Conn.)

398), 15.
Bacon v. Western Furniture Co.

(53 Ind. 229), 632, 638.
Badcock v. Hunt (60 L. T. 314),

1009.
Badger Lumber Co. v. Malone (8

Kan. App. 121), 241.
Badger Lumber Co. v. Marion Wa-
ter Supply Co. (48 Kan. 182),
442.
Bagley v. Peddie (16 N. Y. 469),

588.
Bailey v. Campbell (82 Ala. 342),

258, 955.
Bailey v. Delaplaine (1 Sandf. (N.

Y.) 5), 1199.
Bailey v. Dunlap (138 Ala. 415),

123.
Bailey v. Foster (3 C. B. 215), 175.
Bailey v. Schnitzius (23 N. J. Eq.

235), 441.
Bailey v. Seigel, etc. Co. (54 Mo.

App. 50), 680.
Bailey v. Snyder (13 S. & R.

(Pa.) 160), 457.
Bailey v. Ward (32 La. Ann. 839),

195.
Bailey v. Wells (8 Wis. 141), 1193.

Bailey v. White (41 N. H. 337),

336.
Eailie v. Plant (11 Misc. Rep. 30),

1379.
Bailie v. Rodway (27 Wis. 172),

496.
Bain v. Clark (10 Johns. (N. Y.)

424), 1309.
Baines v. Burbridge (15 La. Ann.

628), 100.
Baird v. Evans (^0 111. 29), 868.
Baird v. Milford Land, etc. Co. (89

Cal. 552), 274, 371.
Bajus V. Syracuse, etc. R. Co. (103

N. Y. 316), 915.
Bakeman v. Pooler (14 Wend. (N.

Y.) 637), 536.
Baker v. Allen (66 Ark. 271), 836.
Baker v. Cotney (38 So. Rep. (Ala.

1905) 131). 1457.
Baker v. Fessenden (71 Me. 293),

1248.
Baker v. Hoag (3 Barb. (N. Y.)

208), 1299.
Baker v. Hotzzaffel (4 Taunt. 45),

576, 1339, 1340.
Baker v Jones (38 Hun (N Y)

625), 37.
Baker v. Jordan (3 Ohio St. 438),

1316.
Baker v. Kenney (69 N. J. L. 180),

160, 163.
Baker v. Kinney (54 Atl. Rep. (N,

J.) 526), 150, 163.
Baker v. McInturfE (49 Mo. App.

505), 1308.
Baker v. McClurg (96 111. App.

165), 1252.
Baker v. Pratt (15 111. 5681,1195.
Baker v. Saunderson (3 Pick.

(Mass.) 348), 680, 683.
Baker v. White (2 Term. Rep.

159), 171.
Baker v. Winfrey (15 B. Mon.

(Ky.) 504), 10.
Balch V. Patten (45 Me. 41), 576.

xlii

TABLE OF CASES CITED.

[references ABE TO PAGES.]

Baldwell v. Center (30 Cal. 539),

250.
Baldwin v. McCarthern (94 Ga.

622), 1438.
Baldwin v. Morgan (43 Hun (N.

Y.) 355), 412, 752.
Baldwin v. Thibaudeau (17 N. Y.

Supp. 532), 585.
Baldwin v. Walker (21 Conn.

168), 30, 486.
Bales V. Gilbert (84 Mo. App. 675),

1271,1274.
Ball V. Allen (15 Mass. 433), 340.
Ball V. Cullimore (2 C. M. & R.

120), 215.
Ball V. Dunsterville (4 T. R. 313),

332.
Ball V. First National Bank (SO

Ky. 501), 49.
Ball V. Lively (2 J. J. Marsh,

(Ky.) 181), 924.
Ball V. Lively (4 Dana (Ky.) 369),

471.
Ball V. Montgomery (2 Ves. Jr.

194), 22.
Ballance v. City of Peoria (180 111.

29), 463, 948.
Ballard v. Johnson (114 N. C.

141), 1438.
Ballard v. Mayfield (107 Ala. 306),

1411,1412.
Ballard v. Stephen (92 Ala. 616),

1464.
Ball Brown & Co. v. Sledge (82

Miss. 749), 1420, 1446.
Ballock v. Domitt (6 T. R. 650),

1340.
Bally V. Wells (Wilmot, 344),

1285.
Balser v. Barcraft (76 Ala. 414),

960.
Baltimore, etc. Co. v. McCutcheon

(13 Pa. St. 1), 61. 65.
Baltimore & S. P. R. Co. v. Hack-

ett (87 Md. 224), 686.
Baltimore & O. R. Co. v. West (57

Ohio St. 161), 146, 383.

Baltimore & O. R. R. Co. v. Wins-
low (18 App. D. C. 438), 329.
Baltimore Dental Ass'n v. Fuller

(101 Va. 627), 140, 167.
Bamman v. Binzen (142 N. Y.

636), 999, 1397.
Banbury v. Sherin (4 S. D. 88),

163.
Bandy v. Cartwright (8 Exch.

933), 698.
Banergee v. Hevey (5 Mass. 11),

97.
Bank v. Getchett (59 N. H. 281),

520.
Bank v. Warner (22 Kan. 537),

122.
Bank v. Wise (3 Watts (Pa.)

394), 539.
Banker v. Braker (9 Abb. N. C.

(N. Y.) 411), 1374.
Bank, etc. v. Trumbull (35 How.

Pr. (N. Y.) 8), 537.
Bank of America v. Banks (101

U. S. 240), 24.
Bank of Commonwealth v. Mc-

Chord (4 Dana (Ky.) 191), 343.
Bank of Hamilton v. Dudleys Les-
see (2 Pet. (U. S.) 492), 48, 53.
Bank of Louisville v. Baumeister

(87 Ky. 6), 978.
Bank of Pennsylvania v. Wise (3

Watts (Pa) 394), 495.
Bank of Virginia v. Hedges (38

Tex. 614), 961.
Bank of Virginia v. Poitiaux (3

Rand. (Va.) 136), 65.
Banner, In re (149 Fed. Rep. 936),

586.
Banning v. Fades (6 Minn. 402),

342.
Baptist Church v. Bigelow (16

Wend. (N. Y.) 28), 382.
Baragiano v. Villani (117 111. App.

372), 328.
Barbee v. Greenberg (57 S. B.

Rep. 125), 1392.

TABLE OF CASES CITED.

xliii

Barbee v. Shannon (1 Ind. Ter.

199), 679.
Barber v. Clark (4 N. H. 380),

447.
Barber v. Stone (104 Mich. 90),

646,649.
Barchman v. Byrne {S3 Cal. 28),

27.
Barclay v. Morrison (16 S. & R.

(Pa.) 129), 549.
Barclay v. Steamboat Co. (6

Phila. 558), 616, 1391.
Bardlet v. Walker (93 111. App.

609), 1214.
Barker v. Allen (5 H. & N. 61),

386.
Barker v. Barker (3 Car. & C.

557), 862.
Barker v. Bradley (42 N. Y. 316),

232.
Barker v. Clark (4 N. H. 380), 445.
Barker v. Fitzgerald (204 111.

325), 470.
Barker v. Hollis (50 Ala. 411),

139.
Barkley v. Holt (84 N. Y. S. 957),

103.
Barkley v. McCue (25 Misc. Rep.

738), 103, 1213.
Barkman v. Barkman (107 111.

App. 332), 922.
Barlin v. Commonwealth (110 Pa.

St. 454), 1445.
Barlow v. Dahm (97 Ala. 414),

964.
Barlow v. Jones (117 Ga. 412),

1095.
Barlow v. Rhodes (1 C. & M. 439),

416.
Barlow v. St. Nicholas Nat. Bank

(63 N. Y. 399), 1015.
Barlow v. Wainwright (22 Vt. 88),

220, 1208, 1222, 1239.
Barium v. Berger T125 Mich. 504),

219.
Barnard v. Poor (21 Pick. (Mass.)

378), 844.

d

[references are to pages.]

Barnes v. Northern Trust Co. (169

111. 112), 486, 1092, 1093.
Barnes v. Strohecker (17 Ga. 340),

868.
Barnett v. Barnes (73 111. 216,

217), 466, 555.
Barnett v. Plummer (19 W. N. C.

(Pa.) 117), 980.
Barnett v. Warren (82 Ala. 557),

1438.
Barney v. Keith (4 Wend. (N. Y.)

502), 698.
Barneycastle v. Walker (92 N. C.

198), 689.
Barns v. Wilson (116 Pa. St. 303),

1157,1158.
Barnsdall v. Boley (119 Fed. Rep.

191), 341.
Barnum v. Fitzpatrick (27 Abb.

N. C. (N. Y.) 334), 1132, 1152.
Barnum v. Landon (25 Conn. 137),

390.
Barr v. Chandler (47 N. J. Eq.

532), 550.
Barr v. Glover (10 Ir. Com. L.

Rep. 113), 634.
Barr v. Kimball (43 Neb. 766),

480.
Barreth v. Trainer (50 111. App.

420), 1072.
Barrett v. Bell (82 Mo. 110), 447.
Barrett v. Blagrave (5 Ves. 555),

725, 757.
Barrett v. Brodie (158 111. 479),

1129, 1131, 1142, 1152, 1340.
Barrett v. Cocks (12 Heisk.

(Tenn.) 566), 17.
Barrett v. Cox (112 Mich. 220),

195.
Barrett v. Jefferson (5 Houst.

(Del.) 567), 262.
Barrett v. Johnson (2 Ind. App.

25), 320.
Barrett v. Rolph (14 M. & W. 348),

1048.
Barrett v. Warren (3 Hill (N. Y.)

348), 690.

xliv

TABLE OF CASES CITED.

Barroilhet v. Battelle (7 Cal. 450),

1075.
Barron v. Liedlogg (95 Minn.

474), 862.
Barrow v. Isaacs (60 L. J. Q. B.

179), 669, 670.
Barrow v. Richard (8 Paige, 351),

742.
Barry v. Hamburg-Bremen F. I.

Co. (110 N. Y. 1), 1051.
Barry v. Hoffman (6 Md. 78), 350.
Barry v. Ryan (4 Gray (Mass.)

523), 275.
Barry v. Smith (23 N. Y. 129),

275.
Barry v. Stanton (Cro. Eliz. 331),

1054.
Bartel v. Brain (13 Utah, 162),

457.
Bartlett v. Baker (34 L. J. Ex.

11), 128.
Bartlett v. Farrington (120 Mass.

284), 565, 1131, 1132, 1136, 1137.
Bartlett v. Greenleaf (11 Gray

(Mass.) 98), 632.
Bartlett v. Haviland (92 Mich.

552), 1252.
Bartlett v. Hitchcock (10 111. App.

87), 288.
Bartlett v. Perkins (13 Me

685.

Robinson (52

Wright (Cro. Eliz.

St.

Bartlett v.

715), 937.
Bartlett v.

299), 340.
Bartley v. Phillips (179 Pa.

175), 645.
Barton v. Banks (2 F. & F. 213),

1079.
Barton v. Dawes (10 C. B. 261),

4G5.
Barton v. Learnard (26 Vt. 192),

941.
Barwick v. Thompson (7 T. R.

488), 922.
Bascom v. Dempsey (143 Mass.

409), 685.

[references ABE TO PAGES.]

Basham v. Commonwealth (76 Ky.

36), 326.
Baskin v. Seechrist (6 Pa. St.

497), 924.
Bass V. Metropolitan West Side
El. R. Co. (82 Fed. Rep. 587),
712.
Bass T. Rollins (63 Minn. 226),

1143.
Bass V. West (110 Ga. 698), 1185.
Basserman v. Society of Trinity

Church (39 Conn. 137), 449.
Bassett v. Hughes (43 Wis. 319),

533.
Bass Lake Co. v. Hollenbeck (5

Ohio Cir. Dec. 242), 334.
Bastin v. Bidwell (18 Ch. D. 238),

1387.
Bastow V. Cox (11 Q. B. 22), 187.
Bateman v. Maddox (86 Tex. 546),

379.
Bateman v. Murray (1 Ridgw.

170), 1383.
Bates V. Bassett (60 Vt. 530), 73.
Bates V. Boston & N. Y. R. R. Co.

(10 Allen (Mass.) 251), 332.
Bates V. Dunham (58 Iowa, 308),

14.
Bates V. Hoski (6 Ohio Dec. 1064),

1264.
Bauer v. Taylor (4 Neb. (Unof.)

701), 470, 477.
Baugher v. Crane (27 Md. 36),

712.
Baugher v. Wilkins (16 Md. 35),

697, 1158, 1160.
Baughman v. Partman (14 S. W.

Rep. 342), 292.
Baughman v. Reed (75 Cal. 319),

315.
Baum V. Bell (2S S. C. 201), 1466.
Bauman v. James (L. R. 3 Ch.

508), 387.
Baumgardner v. Copying Co. (44

111. App. 74), 1131.
Baumier v. Antian (65 Mich. 31),
1142,1187.

87),

Neb.

TABLE OF CASES CITED.

xlv

[references are to pages.]

Baxley v. Sechrest (85 Ala. 183),

1464.
Baxter v. Brown (2 W. Bl. 973),

244.
Baxter v. Bush (29 Vt. 465), 19,

1425.
Baxter v. Lansing (7 Paige, 350),

666.
Baxter v. Providence (40 Atl. Rep.

423), 623.
Baxter v. Taylor (4 B. & Ad. 72),

679.
Bayles v. Clark (100 N. Y. Supp.

586), 475.
Bayley v. Bradley (5 Com. Bench,

56), 236.
Bayley v. Fitzmaurice (9 H. L.

Cas. 78), 386.
Baylies v. Ingram (73 N. E. Rep.

1119), 630.
Baylis v. Jiggins (67 L. J. Q. B.

793), 1030.
Baylis v. Le Gros (4 Com. Bench,

N. S. 537), 861.
Bayis v. Prentice (75 N. Y. 604),

103.
Bayly v. Gaines (12 "Va. Law J.

78), 1125.
Bayly v. Lawrence (1 Bay. (S. C.)

499), 1353.
Baynes v. Lloyd (2 Q. B. 610),

606.
Baynham v. Guy's Hospital (3

Ves. 295), 1372.
Baynton v. Finnall (12 Miss. 193),

21.
Bazin v. Segma (5 La. Ann, 718),

1422.
Beach v. Barons C13 Barb. (N. Y.)

305), 1316.
Beach v. Grain (2 N. Y. 86), 883.
Beach v. Parish (4 Cal. 339), 1340.
Beach v. Gray (2 Denio (N. Y.)

84), 520.
Beachey v. Somerset (1 Stra. 447),

667.

Beakes v. Hass (36 Misc. Rep.

796), 1164.
Beakes v. Holzman (94 N. Y. Supp.

33), 856, 877.
Beal V. Bass (86 Me. 325), 620.
Beal V. Boston Car Spring Co. (125

Mass. 159), 491, 1096, 1112.
Beale v. Sanders (3 Bing. (N. C.)

850), 196, 385.
Beall V. James Folmar Sons & Co.

(122 Ala. 414), 1435.
Beall V. White (94 U. S. 382),

1195,1422.
Beals V. Providence Rubber Co.

(11 R. I. 381), 1023.
Beamish v. Cox (16 L. R. Ir. 270),

161.
Bean v. Coleman (44 N. H. 539),

441.
Bean v. Pettengill (7 Rob. (N. Y.)

7), 1188.
Bear v. Bitner (16 Pa. St. 175),

1316.
Beardman v. Wilson (L. R. 4 C. P.

57), 1199.
Beardsley v. Town of Nashville

(64 Ark. 240), 575.
Beasley v. Clarke (102 Ala. 254),

960.
Seattle v. Parrott Silver & Cop.

Co. (17 Pac. Rep. 451), 123L
Beaty v. Gibbon (16 Bast, 116),

1314.
Beavan v. Dalahy (1 H. Bl. 5),

1314.
Bebb V. Crowe (39 Kan. 342), 124.
Becar v. Flues (¥4 N. Y. 518), 379.
Beck V. Flournoy Live Stock & R.

E. Co. (12 C. C. A. 497), 40.
Beck V. Minnesota & Western

Grain Co. (107 N. W. Rep.

1032), 943.
Beck V. Western Grain Co. (131

Iowa, 62), 1419.
Beck V. Wisely (52 Mo. App. 242),

1414.

xlvi

TiVBLE OP CASES CITED.

[references are to pages.]

Becker v. Bullowa (36 Misc. Rep.

524), 939.
Becker v. Dalby (86 N. W. Rep.

314), 1420.
Becker v. De Forest (1 Sweeney

(N. Y.) 528), 119, 267.
Becker v. Walworth (45 Ohio St

169), 45, 46.
Beckham v. Newton (21 Ga. 187),

1188.
Bechtel v. Carslake (11 N. J. Eq.

500), 441.
Beckley v. Skroh (19 Mo. App.

75) 794.
Beckwith v. Bent (10 B. Mon.

(Ky.) 95), 1436.
Beckwith v. Boyce (9 Mo. 500),

1253.
Beckwith v. Howard (6 R. L. 1),

605.
Bedell v. Constable (Vaughn, 182),

12.
Bedford v. Kelly (61 Pa. St. 491),

107.
Bedford v. Terhune (30 N. Y. 453),

1050, 1093, 1204, 1238.
Bedford v. Winston (3 Rand.

(Va.) 148), 1465.
Bedman v. Murphy (35 Md. 154),

1127.
Beebe v. Coleman (8 Page (N. Y.)

392), 390, 497.
Beecher v. Duffield (97 Mich. 423),

561,1176.
Beekman v. VanDolsen (63 Hun

(N. Y.) 487), 896.
Beer v. Beer (12 C. B. 60), 86, 88.
Beers v. St. John (16 Conn. 322),

1264.
Beeston v. Yale (78 N. Y. Supp.

158), 1207.
Behrman v. Barto (54 Cal. 131),

1387.
Beiler v. Devoll (40 Mo. App. 251),

174.
Belcher v. Mcintosh (8 Car. & P.

720), 887,

Belchers S. R. Co. v. Grain El.

(101 Mo. 192), 72.
Belches v. Grimsley (88 N. C. 88),

1430.
Belding v. Flynn (15 S. W. Rep.

184), 395.
Belding v. Texas Produce Co. (61

Ark. 377), 139.
Belger v. Sanchez (70 Pac. Rep.

738), 579.
Belfour v. Weston (1 T. R. 310),

1340.
Belknap v. Belknap (77 Iowa, 71),

83.
Bell V. Allen's Adm'r (2 Munf.

(Va.) 118), 342.
Bell V. Baker (43 Minn. 86), 469,

481.
Bell V. Barchard (16 Beav. 8),

365.
Bell V. Byerson (11 Iowa, 233),

327.
Bell V. Ellis' Heirs (1 Stew. & P.

(Ala.) 294), 318.
Bell V. Matheny (36 Ark. 572),

1424.
Bell V. Platteville (70 Wis. 139),

72.
Bell V. Rinker (30 111. App. 300),

174.
Bellamy, Elder v. Pearson, In re

(53 L. J. Ch. 174), 20.
Bellas V. Hays 15 S. & R. (Pa.)

427), 106.
Bellases v. Burbrick (1 Salk. 209),

130.
Belshe v. Batdorf (98 Mo. App.

627), 1432, 1455.
Belvin v. Raleigh Paper Co. (123

N. Car. 138), 1250.
Berais v. Wilder (100 Mass. 446),

1054.
Benedict v. Barling (79 Wis. 551),

421.
Benedict v. Everard (73 Conn.

157), 1085.

TABLE OP CASES CITED.

xlvii

[reb^erences are to pages.]

Benedict v. Morse (10 Met.

(Mass.) 223), 228, 941.
Beneteau v. Stubler (79 Minn.

259), 847.
Bendall v. Summersett (2 W. Bl.

692), 48.
Benfoy v. Congon (40 Micli. 283),

201.
Benlow v. Dry Dock Co. (112 N.

Y. 263), 960.
Bennet v. Farka.s (126 Ga. 228),

992.
Bennett v. Bittle (4 Rawle (Pa.)

339), 399, 1183.
Bennett v. Herring (3 C. B. (N.

S.) 370), 490, 494.
Bennett v. McKee (38 So. Rep.

129) 1073.
Bennett v. Judson (21 N. Y. 238),

102.
Bennett v. Robinson (27 Mich.

26) 230.
Bennett v. Sullivan, (100 Me.

118) 782.
Bennett v. Womack (7 B. & C.

627), 364, 508, 607.
Bennett's Case (1 Stra. 7«7), 1442.
Bennock v. Whipple (12 Me. 346),

201, 212.
Benoist v. Rothschild (145 Mo.

399), 84, 484.
Bensel v. Gray 180 N. Y. 417),

1071, 1077.
Bensley v. Atwill (12 Cal. 231),

351.
Benson v. Aitken (17 Cal. 163),

122.
Benson v. Gottheimer (75 Ga.

642), 1411.
Benson v. Hobbs (4 Har. & J.

(Md.) 285), 601, 604.
Benson v. Suarez (43 Barb. (N.

Y.) 408), 1057.
Bentley v. Atlantic (92 Ga. 623),

704.
Bentley v. Metcalf (75 L. J. K. B.

891), 295.

Bentley v. Sill (35 111. 414), 1161.
Bentley v. Taylor (81 Iowa, 306),

674, 782.
Benton, In re (92 Iowa, 262), 10.
Berger v. Hoerner (36 111. App.

360), 1253.
Bergh v. Herring (136 Fed. Rep.

368), 1288.
Bergland v. Frawley (72 Wis.

559), 622, 1225, 1226.
Bergman v. Guthrie (89 Iowa,

290), 1440.
Bergner v. Palethrop (2 W. N. C.

(Pa.) 297), 327.
Berkey-Gay Furniture Co. v. Sher-
man Hotel Co. (81 Tex. 135),

1436.
Berkley v. Smith (27 Gratt. (VL)

299), 440.
Berlin v. Belle Isle Scenic Ry. Co.

(12 Det. Leg. N. 573), 66.
Berliner v. Association (32 Misc.

Rep. 470), 1296.
Bernal v. Gleim (33 Cal. 668), 27.
Bernal v. Hovious (15 Cal. 544),

311.
Bernard v. Bonner (Alleyn, 58),

1200.
Berner v. Bagnell (20 Mo. App.

543), 327.
Bernett v. Bittle (4 Rawle (Pa.)

339), 1132.
Bernham v. Hubbard (36 Conn.

539), 594.
Bernhard v. Reeves (6 Wash. 424),

841.
Bernheimer v. Adams (70 App.

Div. 114), 1265.
Berni v. Boyer (90 Minn. 469),

772.
Bernstein v. Heinemann (23 Misc.

Rep. 464), 521, 583, 1367.
Berrian v. Olmsted (4 E. D.

Smith (N. Y.), 1302.
Berridge v. Glassey (7 All. Rep.

749), 454, 928.

xlviii

TABLE OF CASES CITED.

[EEFEREXCES ABE TO PAGES.]

Berriman v. Peacock (9 Bing.

384), 715.
Berrington v. Casey (78 111. 317),

677, 693.
Berry v. Berry (8 Kan. App. 584),

1459.
Berry v. Carle (4 Greenl. (Me.)

269), 434.
B«rry v. Lindley (3 Man. & G.

496, 147.
Berry v. Mutual Ins. Co. (2 Johns.

Ch. (N. Y.) 603), 1108.
Berry v. Potter (62 N. J. Eq. 664),

271.
Berry v. Van Winkle's Ex'rs (2

N. J. Eq. 390), 874, 1292.
Berry v. White (Bridgeman, 82),

530.
Berryhill v. Healey (89 Minn.

444), 1056.
Bertie v. Beaumont (16 Est. ),

301.
Bertie v. Flagg (161 Mass. 504),

782, 795, 796.
Bertram v. Cook (32 Mich. 518),

920, 922, 947, 953, 955.
Besley v. Besley (9 Ch. D. 103),

1099.
Bess V. Vernam (6 App. Div. 246),

1127.
Best V. Pold (18 Wall. (U. S.)

112), 38.
Best Mfg. Co. V. Cohn (86 Pac.

Rep. 829), 1260.
Betsinger v. Schuyler (46 Hun

(N. y.) 349), 279, 1409.
Bettesworth v. Dean, etc. of St

Paul (3 Bro. P. C. 389), 1383.
Bettinger v. Baker (29 Pa. St.

66), 1306.
Bettison v. Budd (17 Ark. 546),

956.
Bettisworth's Case (2 Coke, 516),

399, 447.
Betts V. June (51 N. Y. 274), 1391.
Betz V. Maxwell (48 Kan. 142),

208, 221.

Betz V. Snyder (48 Ohio St. 492),

326.
Bevans v. Briscoe (4 Har. & J.

149), 3, 1323.
Beverly v. Lincoln Gas Co. (6 Ad.

& E. 839), 581.
Beyer v. Fenstermacher (2 Whart.

(Pa.) 95), 1443.
Bickford v. Parson (5 C. B. 920,

930), 493, 639.
Biddle v. Blackburn (5 Pa. Law.

J. 419), 1005.
Biddle v. Hussman (23 Mo. 597),

541, 1178.
Biddle v. Reed (33 Ind. 52^), 847.
Biddulph V. Poole (11 Q. B. 713),

1202, 1214.
Bieler v. Devoll (40 Mo. App.

251), 378.
Bigelow V. Collamore (5 Cush.

(Mass.) 226), 882, 1351.
Bigelow V. Shaw (65 Mich. 341),

435.
Bigelow Co. V. Heintze (53 N. J.

69), 1302.
Biggs V. Brown (2 S. & R. (Pa.)

14), 68$, 1314.
Biggs V. Piper (86 Tenn. 589),

1411.
Biggs V. McCurley (76 Md. 409),

879, 880, 1152.
Biggs V. Stueler (93 Md. 110),

1214, 1236.
Bigler v. Furman (58 Barb. (N.

Y.) 545), 927, 934.
Biglow V. Biglow (75 App. Div.

9S), 573.
Biglow V. Biglow (56 N. Y. Supp.

794), 958.
Biglow V. Biglow (77 N. Y. Supp.

716), 264, 685.
Bilcher v. Parker (40 Mo. 113),

139.
Billany v. Smilh (4 Houst. (Del.)

113), 1142.
Billings v. Starke (15 Fla. 297),

351.

TABLE OF CASES CITED.

xlix

[references are to pages.]

Billings V. Tucker (6 Gray (Mass.)

368), 1330.
Binds V. Benbow (11 Rich. L. (S.

C.) 24), 690, 958.
Binford v. Bruso (22 Ind. App.

512), 361.
Bingham v. Allport (1 N. & M.

398), 537.
Bingham v. Honeyman (32 Oreg.

129), 336.
Bingham v. Vandegriff (93 Ala.

283), 1448.
Binney v. Chapman (5 Pick.

(Mass.) 124), 938.
Binney's Case (2 Bland (Md.)

114), 437.
Binns v. Hudson (5 Binn. (Pa.)

505), 1415, 1443.
Birch V. Dawson (6 C. & P. 658),

1257.
Birch V. Ward (111 111. App. 336),

694.
Birch V. Wright (1 T. R. 378),

128, 130, 223.
Bircher v. Parker (43 Mo. 443),

1264, 1267, 1271.
Bird V. Defonvielle (2 Car. & K.

415), 1239.
Bird V. Earle (15 Fla. 447), 82.
Bird V. Elwes (37 L. J. Ex. 91),

859.
Bird V. Lord Treville (1 C. & E.

317), 785.
Birkhead v. Cummins (33 N. J.

Law, 44), 1134.
Birmingham Breweries v. Jame-
son (67 L. J. Ch. 403), 750.
Bischoff V. Trenholm (36 S. C.

75), 1084.
Bishop V. Blair (36 Ala. 302), 22.
Bishop V. Howard (3 D. & R. 293),

133, 140.
Bishop V. Lalouette's Heirs (67

Ala. 197), 941.
Bishop V. Taylor (60 L. J. Q. B.

556), 365.

Bishop V. Trustees of Bedford

Charity (28 L. J. 215), 638.
Bissell V. Lloyd (100 111. 214), 804,

876.
Bissell V. Erwin's Heirs (10 La.

524), 321.
Bittinger v. Baker (29 Pa. St. 66),

204, 1316, 1328.
Black V. Delaware & R. Canal Co.

(22 N. J. Eq. 130), 62.
Black V. Ebner (54 Ind. 544), 877.
Black V. Golden (109 Mo. App.

37), 311, 315.
Black V. Shreve (13 N. J. Eq.

455), 349.
Blacker v. Mathers (6 Bro. P. C.

334), 607.
Blackford v. Frenzer (44 Neb.

829), 1098.
Blackman v. Welsh (44 Mo. 41),

638.
Blackmore v. Boardman (28 Mo.

420), 616, 1081, 1391.
Blackwell v. Baily (1 Mo. App.

328), 1299.
Blackwell v. Bowers (67 Vt. 403),

192.
Blair v. Claxton (18 N. Y. 529),

1178.
Blair v. Macon (64 N. H. 487),

164.
Blair v. Ramkin (11 Mo. 440),

1077.
Blake v. Baker (115 Mass. 188),

1023.
Blake v. Chase, Counselman & Co.

(95 Iowa, 219), 1452.
Blake v. Clarke (6 Me. 436), 437,

439.
Blake v. Coats. (3 G. Greene

(Iowa) 548), 689, 690, 1451.
Blake v. Dick (15 Mont. 236),

103, 469, 476, 785, 787, 1152, 1210.
Blake v. Foster (8 T. R. 496), 953.
Blake v. Fox (17 N. Y. Supp. 508),

814,

TABLE OF CASES CITED.

[references are to pages.]

Blake v. Grammer (3 Fed. Cas.

No. 1,496), 492.
Blake v. Kurrus (41 111. App. 562),

151.
Blake v. Preston (67 Vt. 613), 579.
Blake v. Ranous (25 111. App. 486),

789, 796.
Blakeman v. Miller (136 Cal. 138),

1079.
Blakeman v. Railroad (8 El. & Bl.

1053), 913.
Blanchard v. Ames (60 N. H. 404),

987.
Blanchard v. Baker (8 Me. 258),

432.
Blanchard v. Powers (67 Vt. 403),

196, 220.
Blanchard v. Raines (20 Fla. 467),

1401.
Blanchard v. Taylor (12 Mich.

339), 350.
Blanchard v. Warner (1 Blatch.

(U. S.) 258) 62.
Bland v. Burdick (Cro. Eliz. 46),

1323.
Blantin v. Whitaker (11 Humph.

(Tenn.) 310), 941.
Blarcom v. Kip (26 N. J. Law,

351), 960.
Blasdell v. Souther (6 Gray.

(Mass.) 149), 467.
Blauvelt v. Powell (59 Hun, 179),

1160.
Blazier v. Johnson (11 Neb. 404),

334.
Bledsoe v. Mitchell (52 Ark. 158),

1430.
Bleecker v. Smith (13 Wend. (N.

Y.) 530), 648.
Bless V. Jenkins (129 Mo. 647),

100, 170, 173, 388.
Blickley v. Luce (148 Mich. 133),

866.
Blight V. Dennet (13 Com. Bench,

178), 179.
Blight V. Rochester (7 Wheat.

(U. S.) 453), 317.

Bliss V. Collins (5 Barn. & Aid.

876), 541.
Block V. Ebner (54 Ind. 544), 563,

659.
Block V. Katz (68 N. Y. Supp.

865), 1356.
Block V. Smith (61 Ark. 206),

319, 1410.
Blood V. Goodrich (9 Wend. (N.

Y.) 68), 97.
Bloodworth v. Stevens (51 Miss.

475), 49, 503, 563, 1112.
Bloom V. West (3 Colo. App. 212),

442.'
Bloom V. Wolfe (50 Iowa, 286),

17.
Bloomer v. Merrill (1 Daly, 485),

847, 1214.
Bloomquist v. Johnson (107 111.

App. 154), 1195.
Bloomsburgh Land Imp. Co. v.

Boro of B. (215 Pa. St. 452), 76.
Blore V. Sulton (3 Mer. 237), 259.
Blossom V. Knox (3 Chand. (Wis.)

295), 703.
Blount V. Connolly (110 Mo. App.

602), 1391.
Bludworth v. Lambeth (9 Rob.

(La.) 256), 1315.
Blue V. Sayre (2 Dana (Ky.) 213),

968.
Bluestone Coal Co. v. Bell (38 W.

Va. 297), 363.
Blum V. Robertson (24 Cal. 127),

1,98.
Blumberg v. McNear (1 Wash. T.

141), 575.
Blumenberg v. Myers (32 Cal. 93),

150.
Blumenthal v. Prescott (75 N. Y.

Supp. 710), 802, 865.
Blunden v. Baugh (Cro. Car. 304),

20.
Bly V. Edison Electric Illuminat-
ing Co. (172 N. Y. 1), 704.
Boardman v. Davidson (7 Abb.

Prac. 439), 647.

TABLE OP' CASES CITED.

li

[kefekences are to pages.]

Boardman v. Osborn (23 Pick.

Mass. 295), 522.
Board of Directors v. Chicago Ve-
neer Co. (94 III. App. 492),

139.
Bobb V. Syennite Granite Co. (41

Mo. App. 642), 683.
Boden v. Scholtz (91 N. Y. Supp.

437), 831.
Boddie v. Brewer (204 111. 352),

780.
Bodwell V. Crawford (26 Kan.

292), 757.
Bodwell Granite Co. v. Lane (83

Me. 168), 212.
Boefer v. Sheridan (42 Mo. App.

226), 720.
Bogendorfer v. Jacob (89 N. Y.

Supp. 1051), 817.
Bogert V. Dean (1 Daly, N. Y.

259), 1227.
Bogg V. Midland Ry. (36 L. J. Ch.

440), 1385.
Boggs V. Price (64 Ala. 514), 1431,

1459.
Bohannous v. Lewis (3 T. B. Mon.

Ky. 376), 332, 883.
Boiler V. Robinson (50 Mich. 264),

1379.
Boiling V. Stokes (2 Leigh, Va.

178), 1024.
Bolton V. Lambert (72 Iowa, 483),

285.
Bolton V. Landers (27 Cal. 104),

182.
Bolton V. Tomlin (5 Ad. & E. 856),

383.
Bonaparte v. Thayer (95 Md. 548),

261.
Bond V. Cartwright (1 Vent. 136),

80.
Bond V. Chapman (34 Wash. St.

606), 167.
Bond V. Lockwood (33 111. 212),

708.
Bond V. Rosling (1 B. & S. 371),

332.

Bonds V. Smith (106 N. C. 553),

922.
Bondurant v. Thompson (15 Ala.

202), 52.
Bonnecaze v. Beer (37 La. Ann.

531), 862.
Bonnell v. Allen (53 Ind. 130),

1331.
Bonelli v. Blakemore (66 Miss.

136), 445.
Bouetti V. Treat (91 Cal. 223).

1086, 1222.
Bonoyan v. Palmer (5 Mod. 171),

90.
Bonsail v. McKay (1 Houst. Del.

520), 219.
Booker v. Jones (55 Ala. 266),

1445.
Boone v. Darden (109 N. C. 74),

1432.
Boone v. Stover (66 Mo. 430), 243.
Booraem v. Morris (N. H. 1906, 64

Atl. Rep. 953), 1353.
Boorman v. Wisconsin (36 Wis.

207), 1292.
Booth V. Gaither (58 111. App.

263), 412.
Booth V. Kehoe (71 N. Y. 341),

1110.
Booth V. Merriam (155 Mass. 521),

788, 804, 813.
Booth y. Oliver (67 Mich. 664),

1407,1410.
Boraston v. Green (16 East, 71),

1314,1337.
Borden v. Croak (131 111. 68),

1428.
Bordereaux v. Walker (85 111. App.

86), 483.
Borderre v. Den (106 Cal. 594),

95,99.
Boreel v. Lawton (90 N. Y. 293),

1176.
Borgard v. Gale (205 111. 511). 331,

782, 788.
Borjman v. Spellmire (4 Ohio

N. P. 416), 616, 1026.

lii

TABLE or CASES CITED.

[references are to pages.]

Boston y. Binney (11 Pick. Mass.

1). 573, 579.
Boston V. Gray (144 Mass. 531),

826.
Boston & Me. R. R. Co. v. Bartlett

(3 Cush. Mass. 224), 981.
Boston & Worcester R. R. Corp. t.

Ripley (13 Allen, Mass. 421),

541,1176.
Boston-Block Co. v. Buffington (39

Minn. 385), 1346.
Boston CIo. Co. v. Solberg (68 Pac.

Rep. 715), 261.
Boston El. R. Y. Co. v. Grace (112

Fed. Rep. 279), 629, 659, 1082.
Boston Tailoring Co. v. Fisher (59

111. App. 400), 65.
Boston Water Power Co. v. Gray

(6 Mete. Mass. 131), 571.
Bostwick V. Losey (67 Mich. 554),

875,1151.
Bostwick V. Stiles (35 Conn. 198),

904.
Botting V. Martin (1 Camp. 318),

380.
Bourke v. Bourke (I. R. 8 C. 221),

550.
Bourland v. McKnight (79 Ark.

427), 312.
Bourn v. Salmon (95 L. T. 139),

1009.
Bovet V. Holzgraf (5 Tex. Civ.

App. 141), 1244.
Bowdish V. Dubuque (38 Iowa,

341), 942.
Bowditch V. Chickering (139 Mass.

283), 1014.
Bowditch V. Heation (22 La. Ann.

356), 1353.
Bowditch V. Ra\Tnond (146 Mass.

109), 637.
Bowe V. Hunking (135 Mass. 580),

782, 804, 813, 847.
Bowen v. Anderson (1 Q. B. 164),

161,792.
Bowen v. Beck (94 N. Y. 86), 729.

Bowen v. Clarke (22 Oreg. 566),

1207, 120S, 1215.
Bowen v. Haskell (53 Minn. 480),

1199.
Bowen v. Hatch (Tex. 84 S. W.

Rep. 336), 479.
Bowen v. Schackter (72 N. J. Law,

441), 1340.
Bowen v. Wolff (23 R. I. 56), 475.
Bower v. Highie (9 Mo. 256), 933.
Bower v. Hill (1 Bing. N. C. 555),

679.
Bower v. Peate (7 Q. B. 321), 802.
Bowers v. Graves (8 S. D. 385),

309.
Bowers v. Suffolk Mfg. Co. (4

Cush. Mass. 332), 439.
Bowes v. Croll (6 E. & B. 264),

138.
Bowler v. Electric Light Co. (10

Dec. Rep. 582), 266.
Bowles V. Lyon (6 Rob. La. 262),

154, 156, 164.
Bowman v. Bradley (151 Pa. St.

351), 300, 303. 304.
Bowman v. Foot (29 Conn. 331),

635.
Bowman v. Wright (Neb. 91 N. W.

Rep. 580), 557, 1200.
Bowser v. Colby (1 Hare. 109),

649, 666, 667, 1051.
Boyce v. Bakewell (37 Mo. 492),.

1060.
Boyce v. Graham (91 Ind. 420),

676.
Boyce v. Guggenheim (106 Mass.

201), 847.
Boyd V. Douglass (72 Vt. 449),

1244.
Boyd V. Fraternity Hall Ass'n (16

111. App. 574), 743, 1050.
Boyd V. Hunter (44 Ala. 705), 52.
Boyd V. McCombs (4 Pa. St. 146).

522.
Boyd's Lessee v. Talbot (12 Ohio,

212), 638.

TABLE OP CASES CITED.

liii

[befekexce:s aee to pages.]

Boyer v. Commercial Building

Inv. Co. (110 Iowa, 491), 479.
Boyer t. Dickson (1 Phila. 190),

1350.
Boyer v. Smith (3 Watts, Pa. 449),

930.
Boynton v. Peterborough & Shir-
ley R. Co. (4 Cush. Mass. 467),

50.
Bracebridge v. Bulkley (2 Price,

200), 667.
Bracebridge v. Cook (Plou-d. 418),

20,27.
Brackenridge v. Millen (16 S. W.

620), 1435.
Bracket v. Alvord (5 Cow. N. Y.

18), 559.
Bradburne v. Botfield (14 M. & W.

567), 87.
Bradfield t. McCormick (3 Blackf.

Ind. 161), 232.
Bradford v. Fox (38 N. Y. 289),

547.
Bradford v. Patten (108 Mass.

153), 1377, 1378.
Bradford Oil Co. v. Blair (113 Pa.

St. 83), 518, 615.
Bradley v. Bailey (36 Conn. 374),

1322.
Bradley v. Covel (4 Cow. N. Y.

349), 139.
Bradley v. De Goicouria (12 Daly,

393), 1149.
Bradley v. Metropolitan Music Co.

(89 Minn. 516), 244, 245.
Bradley v. Ousterhoudt (13 Johns.

N. Y. 404), 1260.
Bradley v. United States (98 U. S.

104), 36.
Bradley v. Walker (93 111. App.

609), 1092, 1094.
Bradstreet v. Huntington (5 Pet.

IT. S. 402), 317.
Brady v. Nagle (29 S. W. Rep.

943), 641.
Brady v. City of Brooklyn (1 Barb.

N. Y. 584), 65.

Bragg V. Fessenden (11 111. 544),

97, 98, 100.
Brain t. Mattison (54 N. Y. 663),

53.
Brainard v. Burton (5 Vt. 97),

1404.
Braman v. Dodge (100 Me. 143),

329, 330.
Bramhall v. Hutchinson (7 Atl.

Rep. 873), 391, 1110.
Bramwell v. Lacey (48 L. J. Ch.

339), 739.
Branahan v. Hotel Co. (39 Ohio

St. 333), 405.
Brancato v. Kors (74 N. Y. Supp.

891), 810.
Brandagee v. Fernandez (1 Rob.

La. 260), 262.
Brande v. Grace (154 Mass. 210),

406.
Brand v. Trumveller (32 Mich.

215), 1398.
Brandon v. Brandon (5 Madd.

473), 959, 1124.
Branger v. Manciet (30 Cal. 624),

701.
Brann v. Monroe (11 Ky. Law

Rep. 324), 351.
Branton v. O'Briant (93 N. C. 99),

152.
Bras V. Sheffield (49 Kan. 702),

978.
Brasfield v. Brasfield (12 Pickle,

Tenn. 580), 22.
Bratt V. Wooston (74 Md. 609),

1392.
Bratton v. Clamson (3 Strobh. S.

C. 135), 462.
Braythwaite v. Hitchcock (10 M.

& W. 494), 134, 135, 187, 193, 198.
Brayton v. Boomer (131 Iowa, 28),

1057.
Brayton v. Fall River (113 Mass.

218), 405.
Bream v. Dickenson (2 Humph.

Tenn. 126), 614, 1285, 1292.

Uv

TABLE OP CASES CITED.

Breck, In re (12 N. B

1122.
Brecknock v. Pritchard (6 T. R.

750), 883.
Breeding v. Taylor (13 B. Mon.

Ky. 477), 539.
Breese v. Bank (2 E. D. Smith,

N. Y. 474), 1108, 1231.
Ereithaupt v. Thurmond (3 Rich.

S. C. 216), 100.
Brennan v. Jacobs (15 Atl. Rep.

685), 677.
Brennan v. Lachet (5 N. Y. St.

Rep. 882), 805, 814.
Brenner v. Bigelow (8 Kan. 496),

941.
Brent v. Chipley (104 Mo. App.

645), 52, 53.
Bressler's Appeal (2 York, Pa.

57), 573.
Bret V. Cumberland (Cro. Jac.

399), 602. "
Brett V. Berger (4 Cal. App. 12),

847.
Brett V. Rogers (1897, I. Q. B.

525), 1028, 1029..
Breuer v. Frank (71 Ohio St. 540),

819.
Brewer v. Chappell (101 N. C.

251), 1438.
Brewer v. Dyer (7 Cush. Mass.

337), 1074.
Brewer v. Knapp (1 Pick. Mass.

332), 141, 158, 550.
Brewer v. National Union Bldg.

Ass'n (166 111. 221), 1237.
Brewer v. Palmer (3 Esp. 213),

581.
Brewer v. Thorp (35 Ala. 9), 597.
Brewer, etc. Brewing Co. v. Boddie

(181 111. 622), 69.
Brewster v. Fremery (33 Cal. 341),

782.
Brewster v. Lanyon Zinc Co. (72

C. C. A. 212), 670.
Brewster v. McNab (36 S. C. 274),

1438.

[references are to pages.]
R. 215).

Parrot (Cro. Eliz.

Brewster v.

264), 1201.
Briar v. Robertson (19 Mo. App.

56), 378.
Brice v. Williams (1 Mee. & Wei.

6), 247.
Brick V. Favilla (103 N. Y. Supp.

1117), 839.
Brick V. Hornbeck (43 N. Y. Supp.

301), 1125.
Bridge Co. v. Side (2 C. & P. 371),

64.
Bridges v. Longman (24 Beav.

27), 648, 664.
Bridges v. Potts (17 C. B. N. S.

314), 140, 158, 173.
Bridgham v. Frontec (3 Mod. 94),

41.
Bridwell v. Bancroft (2 Ohio Dec.

697), 288.
Brigg V. Thornton (73 L. J. Ch.

301), 744.
Briggs V. Austin (129 N. Y. 208),

1406,1456.
Briggs V. Dyer (7 Cush. Mass.

337), 1214.
Briggs V. Hall (4 Leigh, Va. 484),

1180.
Briggs V. Partridge (64 N. Y. 357),

109.
Briggs V. Thompson (9 Pa. St.

338), 1183.
Brigham v. Rogers (17 Mass. 571),

459.
Brigham Young Trust Co. v. Wag-

ener (13 Utah, 236), 629.
Bright V. McQuat (40 Ind. 521),

186,227.
Briles v. Pace (13 Ired. N. C. 579),

384.
Bringloe v. Goodson (5 Bing. N. C.

738), 942.
Brinkley v. Wolcott (10 Heislc.

Tenn. 22), 144.
Bristol, In re (33 N. W. Rep. 852),

1120,

TABLE OF CASES CITED.

Iv

[references are to pages.]

Bristol Hotel Co. v. Pegram (98

N. Y. Supp. 512), 464, 729.
Bristor r. Burr (120 N. Y. 427),

231.
Brittain v. McKay (35 Am. Dec.

738), 291.
Britton v. Dierker (46 Mo. 591),

343.
Broad v. Winsborough (1 North

Co. Pa. 330), 876.
Broadway & S. A. R. Co. v. Metz-

ger (27 Abb. N. C. 160), 1380.
Brock V. Dole (66 Wis. 142), 712.
Brock V. Dwelling House Ins. Co.

(61 N. W. 67), 572.
Broekville, etc. Co. v. Butler (91

Ind. 134), 435.
Brogan v. Hanan (55 A. D. 92),

798, 799, 859.
Broker v. Charters (Cro. Eliz. 92),

48.
Brolasky v. Ferguson (48 Pa. St

434), 573.
Bromley v. Hopewell (14 Pa. St.

400), 1441, 1442.
Bronner v. Walter (44 N. Y. Supp.

583), 855.
Brookhaven v. Baggett (61 Miss.

383), 297, 698.
Brooklyn Bank v. De Graw (23

Wend. N. Y. 342), 538.
Brooks V. Allen (146 Mass. 201),

479.
Brook V. Biggs (2 Bing. N. C. 572),

530, 545.
Brooks V. Clifton (22 Ark. 54),

729.
Brooks V. Cook (Ala. 38 So. Rep.

641), 106, 109.
Brooks V. Cunningham (49 Miss.

108), 512.
Brooks V. Diaz (35 Ala. 599), 759.
Brooks V. Drysdale (3 C. P. D. 52),

599, 1070.
Brooks V. Jackson (125 Mass.

307), 50, 51, 52.

Brooks V. Olmstead (17 Pa. St.

24), 690.
Brooks V. Reynolds (106 Mass.

31), 411.
Brooks V. Rogers (101 Ala. Ill),

646, 685, 960, 1300, 1336.
Brooks V. Stinson (44 N. C. 72),

685.
B. Roth Tool Co. V. Champion

Spring Co. (93 Mo. App. 530),

644.
Broughton v. Smart (59 111. 440),

575.
Brouwer v. Jones (23 Barb. N. Y.

143), 729.
Brown v. Amyot (3 Hare, 173),

540.
Brown v. Bates (Brayton, Vt. 230),

225.
Brown v. Bridges (31 Iowa, 138),

680.
Brown v. Brown (109 N. C. 124),

1418.
Brown v. Burrington (36 Vt. 40),

874.
Brown v. Cairns (107 Iowa, 727),

1200, 1215.
Brown v. Cairns (63 Kan. 584),

557, 560.
Brown v. Carkeek (14 Wash. 443),

448.
Brown v. Chadbourne (31 Me. 9),

434.
Brown v. Coats (56 Ala. 439), 309.
Brown v. Crump (1 Marsh. 569),

730, 760, 763.
Brown v. Curren (53 How. Pr. N.

Y. 303), 1159.
Brown v. Dysinger (1 Rawle, Pa.

408), 927.
Brown v. Eaton (21 Minn. 409), 98.
Brown v. Oilman (13 Mass. 158),

340.
Brown v. Hamil (76 Ala. 506),

1438.
Brown v. Hardin (21 Ark. 325),

451.

Ivi

TABLE OP CASES CITED.

rEEFEBENCES ARE TO PAGES.]

Brown v. Harper (54 Iowa, 546),

572.
Brown v. Hobson (3 A. K. Marsh.

Ky. 380), 53.
Brown v. Jaquette (94 Pa. St.

113), 310.
Brown v. Kayser (60 Wis. 1), 140,

162,180.
Brawn v. Keller (33 111. 151), 182,

924,964.
Brown v. Lindsay (2 Hill, S. C.

542), 25.
Brown v. Lyddy (11 Hun, N. Y.

451), 569, 1273.
Brown v. Magorty (156 Mass. 209),

1335.
Brown v. Matthews (3 La. Ann.

198), 395.
Brown v. Niles (165 Mass. 276),

758.
Brown v. Noel (21 Ky. Law Rep.

648), 1425, 1467.
Brown v. O'Connor (2 Hog. 77),

1124.
Brown v. Parsons (22 Mich. 24),

317, 1369.
Brown v. Quilter (Amb. 619), 1344.
Brown v. Reno Electric L. & P.

Co. (55 Fed. Rep. 229), 1250,

1254.
Brown v. Roberts (21 La. Ann.

508), 254.
Brown v. Samuels (24 Ky. Law

Rep. 1216), 1378.
Brown v. Schiappacassee (115

Mich. 47), 454.
Brown v. Schleier (118 Fed. Rep.

981), 67.
Brown v. Smith (83 111. 291), 213,

229.
Brown v. Story (1 M. & G. 114),

30.
Brown v. Straw (6 Neb. 536), 343.
Rrown v. Susquehana Broom Co.

109 Pa. St. 57), 904.
Brown v. Tiiur.ston (56 Me. 126),

1306,

Brown v. Wakeman (16 N. Y,

Supp. 846), 1180.
Brown v. Water Co. (152 Mass.

463), 1142.
Browne, In re (3 Fed. Cas. 1741),

547.
Browne v. Raban (15 Ves. 528),

365,607.
Browne v. Tighe (8 Bli. N. S. 272),

1371,1374.
Browne v. Turner (60 Mo. 21),

1306.
Browne v. Warner (14 Ves. 156),

251.
Brownell v. Fuller (60 Neb. 558),

1244.
Brownell v. Tuzman (68 111. App.

67), 1409.
Brownell v. Walsh (91 111. 523),

155.
Browning's Case (Plowd. 133),

648.
Browning v. Dalesme (5 N. Y. Su-
per. Ct. 13, 195), 420.
Brown's Adm'r v. Bragg (22 Ind.

122), 632.
Brownson v. Roy (10 Det. Leg. N.

302), 1112, 1118.
Brubaker v. Poage (1 T. B. Mon.

Ky. 123), 275.
Bruce v. Bank (79 N. Y. 154), 1367,

1373.
Bruce v. Ruler (2 M. & R. 3), 1205.
Bruce v. Welch (52 Hun, 524),

130T.
Bruce, In re (4 Fed. Cas. 2044),

1119.
Bruckman v. Hargadine, etc. Co.

(91 Mo. App. 454), 297.
Bruer v. Hayes (10 Ohio Dec. 583),

54.
Brugher v. Buchtenkirch (51 N. Y.

Supp. 465). 810. ■
Brugman v. Noyes (6 Wis. 1), 733,

743, 757.
Brunifield v. Carson (33 Ind. 94),

382.

TABLE OF CASES CITED.

Ivii

[eefebe:<;ces aee to pages.]

Brummell v. Macpherson (14 Ves.

173), 646.
Brunker v. Cummins (133 Ind.

443), 804, 832.
Brunson v. Morgan (84 Ala. 578),

957.
Brunswick-Balke-Collender Co. v.

Rees (69 Wis. 442), 839.
Brush V. Beecher (110 Mich. 597),

1373.
Brush V. Young (28 N. J. L. 237),

53.
Bryan v. Averett (21 Ga. 401), 90.
Bryan v. Bradley (116 Conn. 474),

354.
Bryan v. Fisher (3 Blackf. Ind.

316), 611, 867.
Bryan v. Hanrick (8 S. W. Rep.

282), 920.
Bryan v. Sanderson (2 MacArthur,

D. C. 431), 1436.
Bryan v. Weatherhead (Cro. Jac.

17), 448.
Bryant v. Carr ^101 N. Y. Supp.

646), 830.
Bryant v. Hancock (67 L. J. Q. B.

507), 751, 770.
Bryant v. Logan (56 W. Va. 141),

78.
Bryant v. Pugh ('86 Ga. 525). 310.
Bryant v. Sparrow (62 Me. 546),

689.
Bryant v. Tucker (19 Me. 383),

204.
Bryant v. Vincent (100 Mich. 426),

148.
Bryant v. Wells (56 N. H. 152),

87, 109.
Bryden v. Northrup (58 III. App.

233), 748, 757.
Brydges v. Lewis (3 L. J. Q. B.

602), 489, 639.
Bryson v. Boyce (92 S. W. Rep.

820), 957.
Buchanan v. Larkin (116 Ala.

431), 941.

Buchanan v. Munroe (22 Tex.

537), 28.
Buchana,n v. Whitman (151 N. Y.

253), 345.
Buck V. Lee (36 Ark. 525), 1436.
Buck V. Lewis (46 Mo. App. 227),

1192, 1207.
Buck V. Marrow (2 Tex. Civ. App.

361), 703.
Buck V. Midland Tobacco Works

(62 Mo. App. 775), 1467.
Buck V. Pike (27 Vt. 529), 878.
Buck V. Rodgers (39 In<L 322),

877.
Buckelew v. Snedeker (27 N. J.

Eq. 82), 83.
Bucker v. Warren (41 Ark. 532),

632.
Buckingham v. Smith (10 Ohio,

288), 116.
Buckland v. Butterfleld (2 Brod.

& B. 54), 1256.
Buckland v. Hall (8 Ves. 92),

1383.
Buckland v. Papillon (L. R. I. Eq.

477), 365, 607.
Buckle V. Fredericks (44 Ch. Div.

244), 741.
Buckley v. Briggs (30 Mo. 452),

65.
Buckley v. Clark (47 N. Y. Supp.

42), 870.
Buckley v. Cunningham (104 Ala.

449), 441.
Buckmaster v. Thompson (37 N.

Y. 558), 978.
Buckner v. Chambliss (30 Ga.

652), 968.
Buckworth v. Simpson (1 C. M. &

R. 834), 1199.
Budd V. Marshall (42 L. T. 793),

1026.
Buddie V. Lines (11 Q. B. 402),

173.
Budd-Scott V. Daniel (71 Law J.
K. B. 706), 697.

Iviii

TABLE OF CASES CITED.

[refeeences are to pages.]

Budgmans v. Wells (13 Ohio, 43),

335.
Buell V. Cook (4 Conn. 238), 938.
Buerger v. Boyd (25 Ark. 441),

1340.
Buffalo Co. Nat. Bank v. Hanson

(34 Neb. 752), 1195, 1199.
Buffalo R. & P. Co. V. Lavery (75

Hun, 396), 37.
Buffalo Stone & C. Co. v. Radsky

(14 N. y. St. Rep. 82), 1182.
Buffum V. Deane (4 Gray, Mass.

385), 1233.
Buiney v. Chesapeake, etc. Canal

Co. (8 Pet. U. S. 201), 117.
Bulkley v. Devine (127 111. 406),

337.
Bulkley v. Dolbeare (7 Conn. 232),

680.
Bulkley v. Taylor (2 T. R. 600),

524.
Bull V. Ellis (1 Stew. & P. Ala.

294, 317.
Bull V. Follett (5 Cow. N. Y. 170),

599.
Bull V. Griswold (19 111. 631),

1195.
Bull V. Sibbs (8 T. R. 327), 577.
Bullard v. Hudson (54 S. E. Rep.

132), 922.
Bulles V. Noyes (75 Tex. 540), 384.
Bullitt V. Musgrave (3 Gill, Md.

31), 762.
Bullock V. Dommitt (6 T. R. 650),

882.
Bullock V. Grinstead (95 Ky. 261),

1276.
Bullock V. Hayward (10 Allen,

Mass. 460), 90.
Bullock V. Sneed (13 Sm. & M.

Miss. 293), 50.
Bullofk-McCall-McDonnell Elec. Co.

V. Coleman (136 Ala. 610), 842.
Bulwer v. Bulwer (2 B. & Ad.

470), 224. 1309.
Bulwer's Case (7 Rep. 1), 559.
Bunker v. Pines (86 Me. 140), 419.

Bunner v. Storm (1 Sandf. Ch.

N. Y. 387), 54.
Bunny v. Wright (1 Leon. 59), 61.
Bunton v. Richardson (10 Allen^

Mass. 260), 236.
Burbank v. Dyer (52 Ind. 392), 53.
Burch V. Harrell (93 Ga. 719), 561.
Burchell v. Clark (46 L. J. C. P-

115), 344, 366.
Burden v. Hal ton (4 Bing. 454),

548.
Burden v. Knight (82 Iowa, 584),

219.
Burden v. Thayer (3 Pick. Mass.

76), 30, 486, 496.
Burdett v. Withers (7 A. & E.

136), 893.
Burdick v. Cameron (42 N. Y.

Supp. 78), 535.
Burdick v. Cheadle (26 Ohio St.

397), 913.
Burdick v. Green (15 Johns. N. Y.

247), 547.
Burdin v. Ordway (88 Me. 375),

573.
Burdon Cent. Sugar Refining Co.

V. Payne (81 Fed. Rep. 663),

1415.
Burford v. Unwin (1 C. & E. 494).

1064.
Burgess v. Kattleman (41 Mo.

480), 1405, 1456.
Burgess v. Rice (74 Cal. 590), 950,

953.
Burgess v. Thompson (1 N. & P.

215), 182.
Burgett V. Taliaferro (118 111.

505), 955.
Eurhans v. Monier (38 App. Div.

466), 636.
Burke v. Bragg (89 Ala. 204), 368.
Burke v. Hullett (216 111. 545),

813.
Burke v. Tindale (33 N. Y. S. 20),

1162.
Burket v. Bonde (3 Dana, Ky.

208), 1442.

TABLE OF CASES CITED.

lix

[BEFEEENCES ABE TO PAGES.]

Burleigh v. Coffin (22 N. H. 118),

22.
Burn V. Phelps (1 Stark. 94, 2 E.

C. L. 44), 1154.
Burner v. Higman (127 Iowa,

580), 817, Sl9, 820.
Burnett v. Bealmear (79 Md. 36),

1429.
Burnett v. Lynch (5 B. & C. 589),

1021,1082.
Burnett v. Rlcli (45 Ga. 211), 948.
Burnham v. Ayer (35 N. H. 351),

549.
Burnham v. Best (10 B. Mon. Ky.

227), 561.
Burnham v. Dunklee (34 N. H.

334), 554.
Burns v. Bryant (31 N. Y. 453),

191, 218.
Burns v. Cooper (31 Pa. St. 426),

514.
Burns v. Fuchs (28 Mo. App. 279),

847, 874.
Burns v. Luckett (3 Weekly Law

Bui. 517), 848.
Burns v. McCubbin (3 Kan. 221),

663, 1017.
Burnslde v. Weightman (9 Watts,

Pa. 46), 1316.
Buron v. Denman (2 Exch. 188),

175.
Burr V. Mills (21 Wend. N. Y.

290), 410, 438.
Burr V. Stenton (52 Barb. N. Y.

377), 501. 699.
Burrell v. Bull (3 Sandf. Ch. N. Y.

15). 92.
Burrows v. Gradin (1 Dowl. & L.

213), 31, 149.
Burt V. Hurlbut (16 Vt. 292), 533.
Burt V. Warne (31 Mo. 296), 685.
Burson v. Dow (65 111. 146), 122.
Burton v. Perry (146 111. 71), 957.
Burton v. Richardson (10 Allen,

Mass. 260). 491.
Burton v. Rohrback (30 Minn.

393), 678.

Burton v. Smith (13 Pet. 483),

1422.
Burton v. Barclay (7 Bing. 745),

1228.
Burton v. Brown (Cro. Jac. 643),

400.
Busbin v. Ware (69 Ala. 279),

1465.
Busby V. Jones (1 Scam. 111. 34),

1115.
Busch V. Huston (75 111. 343), 955.
Buschman v. Wilson (29 Md. 553),

1350.
Bush V. Havird (12 Idaho, 352),

1264,1294.
Buskin v. Edmond (Cro. Eliz.

415), 638.
Bussing V. Bushnell (6 Hill, N. Y.

382), 1444.
Bussman v. Ganster (72 Pa. St.

285), 92, 243, 1345.
Buswell V. Marshall (51 Vt. 87),

334, 390, 391.
Buswell V. Pioneer (37 N. Y. 312),

549.
Butler V. Carillo (88 N. Y. Supp.

941), 1176.
Butler V. Gushing (46 Hun. 521),

863.
Burke v. Hullett (216 111. 545),

803.
Butler V. Kidder (87 N. Y. 98),

1360.
Butler V. Manny (52 Mo. 497),

1016.
Butler V. Mulvihill (1 Bligh, 137),

471.
Butler V. Newhouse (85 N. Y.

Supp. 373), 1143.
Butler V. Smith Pharmacy (5 N.

Y. St. Rep. 885), 463.
Butler V. Threlkeld (117 Iowa,

116), 384, 996.
Butler V. Walker (78 111. 622). 910.
Butman v. James (34 Minn. 547).

716.
Butt V. Ellet (19 Wall. 544), 1428.

Ix

TABLE OP CASES CITED.

[references are to pages.]

Butterfield v. Baker (5 Pick. Mass.

522), 1427.
Buxton V. Rust (L. R. 7 Exch. 1),

386.
Buzzard v. Capel (6 Bing. 151),

446.
Byrd v. Chase (TO Ark. 802), 572.
Byrnes v. Douglass (23 Neb. S3),

951.

C.

Cable V. Cable (146 Pa. St. 451),

334.
Cadden v. Barge Co. (83 Wis. 413),

803.
Cade V. Brownlee (15 Ind. 369),

1072.
Cady V. Quarterman (12 Ga. 386),

146.
Cadwalder v. Loerce (10 Tex. Civ.

App. 1), 174.
Cadwallader v. United States Exp.

Co. (147 Pa. St. 455), 457.
Caeser v. Karutz (50 N. Y. 229),

1150.
Caeser v. Robinson (174 N. Y.

492), 584.
Caffin V. Scott (7 Rob. La. 205),

731.
Cahn V. State (110 Ala. 56), 778.
Cahoon v. Kinen (42 Ohio St.

190), 83.
Cain V. Gimon (36 Ala. 168), 924.
Cain V. Head (1 Coldw. Tenn.

163), 97.
Cairns v. Llewellyn (2 Pa. Super.

Ct. 599), 1379.
Caldwell v. Evans (2 Mill. Const.

S. C. 348), 1201.
Caldwell v. Fulton (31 Pa. St.

483), 274.
Caldwell v. Moore (11 Pa. St. 58),

1006.
Caldwell v. Smith (77 Ala. 167),

964.

Caldwell v. Snow (8 La. Ann. 392),

850.
Caley v. Thornquist (89 Minn.

348), 1378.
Calhoun v. Atchison (4 Bush, Ky.

261),117S.
Calhoun v. Perrin (2 Bew. S. C.

245), 966.
California Conf. v. Seitz (74 Cal.

287), 1284.
California Dry Dock Co. v. Arm-
strong (17 Fed. Rep. 216), 722.
Callaghan v. Hawkes (121 Mass.

298), 987.
Callan v. McDaniel (72 Ala. 96),

615,1391.
Callen v. Hilty (14 Pa. St. 286),

271.
Calvert v. Bradley (16 How. XJ. S.

580), 878.
Calvert v. Frowd (4 Bing. 557),

184.
Calvert v. Hobbs (107 Mo. App.

7), 1078, 1097.
Calvert v. Rice (11 Ky. Law Rep.

1001), 708, 716.
Calvin's Case (7 Coke, 2b), 41.
Cambridge Lodge, etc. v. Routh

(163 Ind. 1), 573.
Camden v. Batterbury (5 C. B. N.

S. 808), 134.
Cameron v. Little (62 Me. 550),

539.
Camley v. Stanfield (10 Tex. 546),

954.
Cammack v. Rogers (Tex. Civ.

App. 74 S. W. Rep. 945). 313.
Camp V. Camp (5 Conn. 291), 352,

923.
Camp V. Scott (47 Conn. 366), 638,

648.
Camp V. Wood "(76 N. Y. 92), 814.
Campau v. Lafferty (43 Mich. 429),

942.
Campbell v. Arnold (1 Johns. N.
Y. 511), 686.

TABLE OF CASES CITED.

Ixi

[references are to pages.]

Campbell v. Babcock (13 N. Y.

Supp. 843), 992.
Campbell v. Fowler (28 La. Ann.

234), 1424.
Campbell v. Johnson (44 Mo. 274),

337, 462.
Campbell v. Johnson (1 Sandf. Ch.

N. Y. 148), 52.
Campbell v. Lord Wenlock (4 F.

& F. 716), 785.
Campbell v. Luck (25 Ohio Civ.

Ct. Rep. 356), 1346.
Campbell v. McFaddin (71 Tex.

28), 327.
Campbell v. Porter (46 App. Div.

628), 854.
Campbell v. Portland Sugar Co.

(62 Me. 555), 792.
Campbell v. Proctor (6 Me. 12),

212, 213.
Campbell v. Schrum (3 Watts, Pa.

60), 599.
Campbell's Case (1 Roll. Abr.

237,), 541.
Canal Co. v. Bretts (25 Ind. 409),

847.
Canal Co. v. Wilmot (9 East, 360),

64.
Canale v. Copello (137 Cal. 22),

354.
Canal Elev. & W. Co. v. Brown (36

Ohio St. 660), 1378.
Canandaigua v. Foster (156 N. Y.

354), 825.
Candler v. Mitchell (119 Mich.

564), 158, 174.
Canfield v. Vacha (3 Ohio N. P.

158), 774.
Canham v. Fisk (3 Cromp. & J.

126), 438.
Cannan v. Hartley (9 C. B. 634),

1208.
Canning v. Fibush (77 Cal. 196),

155.
Cannock v. Jones (3 Exch. 233),

911.

Cannon v. Barry (59 Miss. 289),

712.'
Cannon v. Demming (3 S. D. 421),

326.
Cannon v. Hatcher (1 Hill Law,

S. C. 260), 686.
Cannon v. Wilbur (30 Neb. 777),

634.1184.
Cantine v. Phillips' Administrator

(5 Par. Del. 428), 18.
Cantrell v. Fowler (32 S. C. 589),

849, 874.
Cantwell v. Moore (44 111. App.

656), 939.
Capal's Heirs v. McMillan (8 Port.

Ala. 197), 10.
Capen v. Hall (21 R. L 364), 810.
Caperton v. Stege (91 Ky. 351),

1266.
Capley v. Hepworth (12 Mod. 1),

245.
Carby v. Spadden (63 Mo. App.

648), 219.
Cardwell v. Lucas (2 M. & W.

Ill), 953.
Cardwell v. Martin (9 East, 180),

343.
Carelton v. Cate (56 N. H. 130).

439.
Carey v. Kreizer (57 N. Y. Supp.

79), 459, 782.
Carey v. Richards (2 Ohio Dec.

630), 149, 270.
Carger v. Fee (140 111. 582), 258.
Carithers v. Weaver (7 Kan. 110),

955.
Carle v. Monkhouse (47 N. J. Eq.

73), 1306.
Carleton v. Herbert (14 W. R. 772),

166.
Carley v. Lewis (24 Ind. 23), 491,

51S, 615.
Carlin v. Ritter (68 Md. 478), 212,

1269, 1287, 1290.
Carlisle Cafe Co. v. Muse (67 L.

J. Ch. 53), 412.

Ixii

TABLE OP CASES CITED.

[eefebences are to pages.]

Carlisle's Appeal (38 Pa. St. 259),

52.
Carlton v. Williams (77 Cal. 89),

335.
Carman v. Alabama Nat. Bank

(101 Ala. 189), 1459.
Carman v. Mosler (105 Iowa,

307), 6.
Carman v. Plass (123 N. Y. 286),

591.
Carmine v. Bowen (104 Md. 198),

1311.
Carnahan v. Tousey (93 Ind. 561),

532.
Carnegie v. Morrison (2 Mete.

Mass. 381), 532.
Carnegie Natural Gas Co. v. Phil-
adelphia Co. (158 Pa. St. 317),

327,1075.
Carnell v. Lamb (20 Johns. N. Y.

207), 548.
Carnell v. Vanartsdalen (4 Pa. St.

364), 874.
Carnes v. Hersey (117 Mass. 269),

1020.
Carney v. Mosher (97 Mich. 564),

195, 384, 385, 1309, 1314.
Carnhart v. Finney (40 Mo. 449),

646.
Carondelt v. Wolfert (39 Mo. 305),

663.
Carothers v. Covington (Tex. 1894,

27 S. W. Rep. 1040), 958.
Carpenter v. Gillespie (10 Iowa,

592), 1425.
Carpenter v. Jones (63 111. 517),

315, 1309.
Carpenter v. Pocasset Mfg. Co. (180

Mass. 130), 647.
Carpenter v. Shanklin (7 Blackf.

Ind. 308), 465, 1441.
Carpenter v. Stillwell (3 Abb.

Prac. Rep. N. Y. 459), 575.
Carpenter v. Thompson (3 N. H.

204), 923.
Carpenter v. Thornburn (76 Ark.

578), 992.

Carpenter v. United States (17

Wall. U. S. 489), 198, 317, 519,

573.
Carpenter v. Wilson (100 Md. 13),

634, 666.
Carr v. Allott (3 H. & N. 964),

1428.
Carr v. Ellison (24 Wend. 178),

1363,1369.
Carraher v. Bell (7 Wash. 81), 648.
Carre Hotel Co. v. Wells Fargo

Co. (128 Fed. Rep. 587), 498.
Carrig v. Dee (14 Gray, Mass.

583), 409.
Carrigan v. Woods (L. R. I. C. L.

73). 198.
Carroll v. Ballance (26 111. 9),

1228.
Carroll v. Bancker (43 La. Ann.

1078), 1438, 1446.
Carroll v. Peake (1 Peters, U. S.

18), 693.
Carson v. Arvantes (10 Colo. App.

382), 583.
Carson v. Blazer (2 Binn. Pa.

475), 1314.
Carson v. Broady (56 Neb. 648),

958.
Carson v. Codley (26 Pa. St 117),

IIGO.
Carson v. Electric Light Co. (85
Iowa, 44), 14G2.
Carson v. J. C. Ins. Co. (43 N. J.

Law, 300), 1051.
Carstairs v. Taylor (L. R. 6 Ex.

217), 848.
Carstens v. Taylor (40 L. J. 4),

840.
Carter v. Andrews (56 111. App.

646), 1432.
Carter v. Burr (39 Barb. N. Y.

59), 1178.
Carter v. Carter (5 Bing. 406),

545.
Carter v. Carter (109 Mass. 306),

571.
Carter v. Ely (7 Sim. 211), 64.

T^VBLE OF CASES CITED,

Lsiii

[references are to pages.]

Carter v. George (30 Kans. 451),

562.
Carter v. Hammett (18 Barb. N.

Y. 608), 1060, 1090.
Carter v. Marshall (72 111. 609),

927, 942.
Carter v. Thurston (58 N. H. 104),

434.
Carter! v. Roberts (140 Cal. 164),

192, 218.
Carter Publishing Co. v. Dennett

(11 S. D. 956), 651.
Cartwright v. Millar (36 L. T.

398), 387.
Carver v. Gough (153 Pa. St. 225),

1244, 1304.
Carver v. Hoffman (109 Ind. 547),

83.
Carver v. Palmer (33 Mich. 342),

573, 579, 1096.
Cary v. Daniels (5 Met. Mass.

238), 684.
Cary v. Edmonds (71 Mo. 523),

958.
Case V. Davis (15 Pa. St. 80),

1443.
Case V. Minot ri58 Mass. 557),

408.
Case Mfg. Co. v. Garven (45 Ohio

St. 290), 1256.
Casey v. Gregory (13 B. Mon. Ky.

505), 934.
Casey v. Hanrick (69 Tex. 44),

964.
Casey v. King (98 Mass. 303),

678.
Cassady v. Hammer (62 Iowa,

359), 1023.
Cassard v. Thornton (119 111. App.

397), 1163.
Cass Co. Sup'rs v. Cowgill (97

Mich. 448), 573.
Cassell V. Cooke (8 S. & R. Pa.

268), 600.
Cassily V. Rhodes (12 Ohio St. 88),

1306, 1326.

Castagnette v. Nichia (78 N. Y.

Supp. 498), 847.
Castleman v. DuVal (89 Md. 657),

522.
Castleton v. Samuel (5 Esp. 173),

172.
Castro V. Gaffey (96 Cal. 421), 252.
Catholic Ins. v. Gibbons (7 Dec.

Re. 576, 3 Bull, 581), 69.
Caton V. Caton (56 L. J. Ch. 886),

388.
Cattley v. Arnold (1 John & H.

651), 128, 133.
Caugham v. King (Cro. Car. 221),

884.
Cavalier v. Pope (75 Law J. K. B.

609), 860.
Cavanaugh v. Clinch (88 Ga. 610),

1224.
Center v. Everard (19 Misc. Rep.

156), 1247.
Center Creek Min. Co. v. Franken-
stein (179 Mo. 564), 190.
Central Bank v. Peterson (24 N.

J. Law, 668), 1414.
Central Branch R. Co. v. Fritz (20

Kan. 430), 1265.
Central City Bank v. Dana (32

Barb. N. Y. 296), 547.
Central Rd. Co. v. WTiithead (74

Ga. 441), 368.
Cesar v. Karutz (60 N. Y. 229),

786, 795, 805.
Chadbourn v. Rahilly (34 Minn.

346), 255.
Chadwick v. Woodward (1 City Ct.

R. Supp. 94), 875, 1155.
Chaffee v. Garrett (6 Ohio, 421),

37.
Chaffin V. Brockmeyer (33 Mo.

App. 92), 934.
Chalfin V. Malone (9 B. Mon. Ky.

496), 291.
Chalifonk v. Potter (113 Ala. 215),

1265.
Challoner v. Da vies (1 Ld. Ray,

404), 86.

Ixiv

TABLE OF CASES CITED.

[REn:RENCES AKE TO PAGES..

Cbalmers v. Smith (152 Mass.

561), 222, 726.
Chalmers v. Vignand's Syndic

(Mart. N. S. 189), 208.
Chamberlain v. Donohue (45 Vt.

50), 212, 216, 220, 250.
Chamberlain v. Dumcrier (1 Bro.

C. C. 166), 711.
Chamberlain v. Dunlop (126 N. Y.

4), 619. 1201, 1202, 1378, 1380.
Chamberlain v. Godfrey's Adm'r

(50 Ala. 530), 1340.
Chamberlain v. Heard (22 Mo.

App. 416), 1464.
Chamberlain v. Iba (181 N. Y.

486), 467.
Chamberlain v. Letson (5 N. J.

Law, 152), 462.
Chamberlain v. Pybas (81 Tex.

511), 958.
Chamberlain v. Shaw (18 Pick.

Mass. 278), 1329, 1330.
Chamberlaine's Case (4 Mod. 151),

1196.
Chambers v. Irish (Iowa, 109 N.

W. Rep. 787). 320.
Chambers v. Pleak (6 Dana. Ky.

426), 920, 943.
Chambers v. Ross (25 N. J. Law,

293), 258, 519, 573, 947.
Chamblee v. McKenzie (31 Ark.

155), 586.
Champion v. Plummer (5 Esp.

240), 387.
Champ Spring Co. v. Roth Tool

Co. (103 Mo. App. 103), 714.
Chancellor v. Poole (2 Doug. 764),

1090.
Chandler v. McGinnins (8 Kan.

App. 421), 634.
Chandler v. Oldham (55 Mo. App.

139), 1280.
Chandler v. Ryder (102 Mass.

268), 54.
Chandler v. Thurston (10 Pick.
205), 315.

Channel v. Merrifield (106 111.

App. 243), 110, 644, 861, 1210.
Chapel V. Hull (60 Mich. 167),

714, 760, 7.61.
Chapman v. Bluck (4 Bing. N. C.

187), 245, 256.
Chapman v. Gray (15 Mass. 439),

390, 392.
Chapman v. Hainey (100 Mass.

353), 638.
Chapman v. Kirby (49 111. 211),

632, 663.
Chapman v. Lee r47 Ala. 143), 101.
Chapman v. Long (10 Ind. 465),

1315.
Chapman v. McGrew (21 111. 201),

1115.
Chapman v. Plummer (36 Wis.

262), 1117.
Chapman v. Robertson (6 Paige,

N. Y. 627), 452.
Chapman v. Towner (6 Mee. &

Wei. 100), 134, 192.
Chapman v. Veach (32 Kan. 167),

1315.
Chapman v. Weiman (4 Ohio, N.

S. 481), 1427.
Chappell V. Brown (1 Bailey, S.

Car. 528), 503.
Charles v. Byrd (29 S. Car. 544),

42, 44. 48, 1065.
Charless v. Froebel (47 Mo. App.

45), 1083.
Charlton v. Columbia Real Estate

Co. (64 N. J. Eq. 631), 245, 248.
Charter v. Cordwent (6 T. R. 219),

179.
Chase v. Dearborn (21 Wis. 57),

921.
Chase v. Hall (41 Mo. App. 15),

422.
Chase v. Hazelton (7 N. H. 171),

717.
Chase v. Knickerbocker (53 N. Y.

Supp. 220), 647.
Chase v. Tacoma Box Co. (11

Wash. 377), 1254.

TABLE OF CASES CITED.

Ixv

[references ABE TO PAGES.]

Chase v. Turner (10 La. O. S. 19),

1165.
Chatard v. O'Donovan (80 Ind.

20), 306.
Chatauqua Assembly v. Ailing (46

Hun, N. Y. 582), 734.
Chatfield v. Parker (2 M. & R.

540), 683.
Chatterton v. Fox (12 N. Y. Super.

Ct. Duer, 64), 1182.
Chattle V. Pound (1 Ld. Raym.

746), 940.
Chauncey v. Strong (2 Root, Conn.

369), 22.
Cheairs v. Coats (77 Miss. 846),

541.
Cheatham v. Kinl^e (1 Tenn. Ch.

576), 1270.
Cheeser v. Creed '(2 M. & P. 648),

182.
Cheetham v. Hampson (2 Ld.

Raym. 304), 869.
Cheever v. Pearson (16 Pick.

Mass. 266), 189, 190.
Cheney v. Bonnell (58 111. 268),

1317.
Cheney v. Pierce (38 Vt. 515), 23.
Cheney v. Newberry (67 Cal. 125),

281.
Chenimant v. Thornton (2 Car. &

P. 50), 538.
Cherokee Strip Live Stock Ass'n

V. Cass L. & C. Co. (138 Mo.

394), 37.
Cherry v. Arthur (5 Wash. 787),

1261.
Cherry v. Stein (11 Md. 1), 40.
Chesebrough v. Pingree (72 Mich.

438), 99, 1343, 1352.
Chesley v. Welsch (37 Me. 106),

156, 1318.
Chesterman v. Gardner (2 Johns.

Ch. N. Y. 29), 497.
Chestnut v. Tyson (105 Ala. 149),

17, 59.
Chicago V. Peck (196 111. 260),

145.

Chicago Attachment Co. v. Davis

Sewing Machine Co. (111. 25 N.

E. E. Rep. 669), 385, 641, 1068.
Chicago, B. & D. Ry. v. Kelly (211

111. 498), 118.
Chicago, etc. Co. ▼. Keegan (152

111. 413), 925.
Chicago, etc. Co. v. Linard (94

Ind. 319), 1317, 1318, 1319.
Chicago, S. F. & C. R. Co. v. Ward
(128 111. 349), 445.
Chicago Theol. Seminary v. Chi-
cago Veneer Co. (94 111. App.

492), 145.
Chicago Union Bank v. Kansas

City Bank (136 U. S. 223), 1122.
Chiera v. McDonald (121 Mich.

54), 652.
Child V. Hurd (32 W. Va. 66),

1265.
Childers v. Lee (5 N. Mex. 576),

192.
Childers v. Smith (10 B. Mon. Ky.

235), 1112.
Childs v. Clark (3 Barb. Ch. N. Y.

52), 1090.
Chills V. United States (16 Ct. CI.

79), 35.
Chilton V. Niblett (3 Humph.

Tenn. 404), 322.
Chipraan v. Emeric (5 Cal. 49, 51),

622, 638, 645, 910, 1059.
Chipperfield v. Carter (72 L. T.

487), 358.
Chism V. Thomson (73 Miss. 410),

1445.
Chisolm V. Kilbreth (88 N. Y.

Supp. 364), 1166.
Chisolm V. Toplitz (82 App. biv.

346), 1394.
Choate v. Arrington (116 Mass.

552), 52.
Choctaw Nation v. United States

(119 U. S. 1), 39.
Chretien v. Doney (1 N. Y. 419),

369, 1114, 1364.

livi

TABLE OP CASES CITED.

[references are to pages.]

Christian Ch. of Wolcott v. John-
son (53 Ind. 273), 65.
Christie v. Blakely (Pa. St. 15 Atl.

Rep. 874), 471, 479.
Christopher v. Austin (11 N. Y.

216), 1180.
Christy v. Casanave (2 Mart. N. S.

451), 1222.
Christy v. Tancred (7 M. & W.

127), 236, 577.
Church V. Bloom (111 Iowa, 319),

1457.
Church V. Brown (15 Ves. 265),

1051.
Church V. Gilman (15 "Wend. N.

Y. 656), 343, 349.
Church V. Walker (124 Mass. 69),

438.
Churchill v. Lammers (1 Mo. App.

Rep. 155), 1192, 1223.
Chrystie, Appeal of (85 Pa. St.

463), 318.
Cilley V. Hawkins (48 111. 308),

694.
Cincinnati v. Steinkamp (54 Ohio

St. 284), 917.
Cincinnati, etc. Co. v. Hooker (26

Ohio Cir. Ct. R. 392), 267.
City V. Leeds (24 Ind. App. 271),

73.
City Council of Charleston v. Page

(Speers, S. C. Eq. 159). 390, 395.
City of Clinton v. Franklin (26

Ky. Law Rep. 1053), 686.
City of Lincoln v. Lincoln St. R.

Co. (Neb. 93 N. W. Rep. 766),

442.
City of New Albany v. Enders (143

Ind. 192), 514.
City of New York v. Cashman (10

Johns. N. Y. 96), 1024.
City of New York v. Mabie (13

N. Y. 151), 563.
City of New York v. Parker Vein

S. S. Co. (21 N. Y. Super. Ct.

300), 565.

City of New York v. United States

Trust Co. (101 N. Y. Supp. 574),

453.
City of Philadelphia v. Reeves (48

Pa. St. 472), 591.
City of Richmond v. Duesberry

(27 Grat. Va. 210), 1437.
Claflin V. Hoover (20 Mo. App.

583), 326.
Clancey v. Rice (5 Wash. 571),

934.
Clanton v. Eaton (92 Ala. 612),

1414, 1418.
Clapp V. Coble (21 N. Car. 177),

926.
Clapp V. Donaldson (Mass. 80 N.

B. Rep. 486), 826.
Clapp V. Paine (18 Me. 264), 139,

156, 158, 234.
Clapp V. Stoughton (10 Pick. Mass,

463), 22.
Clarges v. Funucan (2 Doug. 565),

111.
Claridge v. MacKenzie (4 M. & G.

143), 923.
Clark v. Abbott (1 Md. Ch. 474),

30.
Clark v. Aldridge (40 N. Y. Supp.

440), 937, 1073.
Clark V. Babcock (23 Mich. 164),

783.
Clark V. Banks (6 Houst. Del.

584), 1314.
Clark V. Barnes (76 N. Y. 301),

119.
Clark V. Burnside (15 111. 62), 15.
Clark V. Butt (26 Ind. 236), 672.
Clark V. Charter (128 Mass. 423),

554.
Clark V. Cobb (121 Cal. 595), 491.
Clark V. Coolidge (8 Kan. 189).

1018.
Clark V. Devoe (124 N. Y. 120),

604.
Clark V. Dobbins (52 Ga. 656),

1445.

TABLE OP CASES CITED,

Ixvii

[references are to pages.]

Clarke v. Fuller (16 C. B. N. S.

24), 259.
Clark V. Gellison (20 Me. 18), 334.
Clark V. Greenfield (34 N. Y. Supp.

1), 644, 1058.
Clark V. Harvey (54 Pa. St. 142),

780, 1315.
Clark V. HajTies (57 Iowa, 96),

1400, 1440.
Clark V. Rowland (85 N. Y. 204),

139.
Clark V. Keliher (107 Mass. 406),

166.
Clark V. Merrill (51 N. H. 415),

1378.
Clark V. Rhoads (79 Ind. 342),

369.
Clark V. Royston (13 Mee. & Wei.

732), 1314.
Clark V. Smith (25 Pa. St. 137),

196.
Clark V. Smarridge (7 Q. B. 957),

131.
Clark V. Spaulding (20 N. H. 213),

675.
Clark V. Stringfellow (4 Ala. 353),

974.
Clark V. Wheelock (99 Mass. 14),

210.
Clark V. Wilson (103 Mass. 219),

771.
Clark & Stevens v. Gerke (Md.

65 Atl. Rep. 326), 893.
Clarke v. Cincinnati (1 Ohio Dec.

10), 388.
Clarke v. Cobb (121 Cal. 595). 539.
Clarke v. Crego (51 N. Y. 646).

941.
Clarke v. Cummings (5 Barb. N.

Y. 339), 609.
Clarke v. Rowland (85 N. Y. 204),

1288.
Clarke v. .Tones (1 Denio, N. Y.

516), 644.
Clarke v. Mitchell (51 N. H. 415),

393.

Clarke v. Rawson (2 Denio, N. Y.

135), 342.
Clarke v. Spaulding (20 N. H.

313), 782, 868.
Clarke v. Webb (1 C. M. & R. 29),

576.
Clarke v. Welsh (87 N. Y. Supp.

697), 834.
Clarke's Appeal (79 Pa. St. 376),

21.
Clarkson v. Skidmore (4 N. Y.

297), 702.
Clary v. O'Shea (72 Minn. 105),

924.
Clason V. Bailey (14 Johns. N. Y.

484), 982.
Clason V. Gorley (5 Sandf. N. Y.

447), 34.
Clator V. Otto (38 W. Va. 89),

1238.
Claude v. Shepard (122 N. Y. 397),

584.
Clavering v. Clavering (2 P. Wms.

388), 710.
Clawson v. Primrose (4 Del. Ch.

643), 441.
Clayton v. Blahey (8 Term Rep.

3), 147, 192.
Clayton v. Greyson (6 N. & M.

694), 459.
Clayton v. Leach (41 Ch. D. 103),

1099.
Clayton v. Souther (1 Exch. 717),

105.
Cleighton v. Sanders (89 111. 543),

162.
Clegg V. Hands (62 L. T. 502),

750, 768.
Clegg v. Rowland (L. R. 2 Eq.

P. Cas. 165), 710.
Clemence v. Steere (1 R. I. 272),

717.
Clement v. Wheeler (25 N. H.

361), 716.
Clemm v. Wilcox (15 Ark. 102),

953.

Ixviii

TABLE OF CASES CITED.

[befebences are to pages.]
Broomfield (19 Mo. Cluett v. Sheppard (131 111. 636),

Clemens v

118), 1199, 1213.
Clemens v. Murphy (40 Mo. 121),

1285.
Clements v. Collins (2 T. R. 502),

399.
Clements v. Welles (11 Jur. N. S.

991), 740, 768, 1089.
demons v. Knox (31 Mo. App.

185), 478, 1014, 1023.
Clendenning v. Currier (6 Gill &

J. Md. 420), 49.
Clendenning v. Lindner (9 Misc.

Rep. 582), 1215, 1364.
Clenighan v. McFarland (11 N. Y.

Supp. 719), 460.
Cleveland v. Crum (33 Mo. App.

616), 1464.
Cleveland v. Spencer (73 Fed.

Rep. 559), 1015.
Cleves V. Willoughby (7 Hill. N.

Y. 83), 459, 785.
Cleveland C. C. & St. Ry. Co. v.

Wood (189 111. 352), 1095.
Click v. Stewart (36 Tex. 280),

1463.
Clifford V. Atlantic Cotton Mills

(146 Mass. 147), 799.
Clifford V. Cotton Mills (146 Mass.

47), 809.
Clifford V. Gresslinger (96 Ga.

789), 977.
Clifford V. United States (34 Ct.

CI. 223), 35.
Clift V. Stockdon (4 Litt. Ky. 215),

394.
Clifton V. Montague (40 W. 207),

783, 848, 904.
Clinan v. Cooke (1 Sch. & Lef. 22),

386, 1367.
Clinton Wire Cloth Co. v. Gard-
ner (99 111. 1.'31). 139, 145.
Cloney v. Richardson (34 Mo. 370),

552.
Close v. Wilberforce (1 Beav. 112).
1105.

401.
Clun V. Clarke (Peake, Ad. C.

239), 182.
Clun's Case (10 Coke, 127), 539.
Clyne v. Holmes (61 N. J. Law,

358), 847, 859.
Coale V. Hannibal, etc. Co. (60

Mo. 227), 722.
Coan V. Mole (39 Mich. 454), 146.
Coats V. Darbey (2 N. Y. 517),

690.
Coatsworth v. Schoellkopf (75 N.

Y. Supp. 753), 456, 616.
Cobb V. Arnold (8 Met. Mass. 398),

938.
Cobb V. Kidd (8 Fed. Rep. 695),

90, 519, 573.
Cobb V. Lavalle (89 111. 331), 434.
Cobb V. Stokes (8 East, 358), 155..
Ccburn v. Goodall (72 Cal. 498),

1080.
Coburn v. Palmer (8 Cush. Mass.

124), 948.
Cochran v. Ocean Dry Dock Co.

(30 La. Ann. 1365), 431.
Cochran v. Pew (159 Pa. St. 184),

641.
Cochrane v. Justice Min. Co. (16

Colo. 415), 252, 465.
Cochrane v. Mortgage & Trust Co.
(Neb. 96 N. W. Rep. 1051), 656.
Cochrane v. Philadelphia Co. (96

N. W. Rep. 1051), 657.
Cockburn v. Watkins (76 Ala

486), 1416.
Cockerline v. Fisher (Mich. lOa

N. W. Rep. 522), 553.
Cocking V. Ward (1 C. B. 868),

380.
Cockson V. Cock (Cro. Jac. 125),

616.
Coddington v. Dunham (3 J. & S.

N. Y. 412), 851, 1148.
Codman v. Freemen (3 Cush-
Mass. 306), 1427.

TABLE OP CASES CITED.

Ixix

[references are to pages.]

Codman v. Hall (9 Allen, Mass.

335), 85, 1019.
Codman v. Jenkins (14 Mass. 93),

938.
Codman v. Johnson (104 Mass.

491), 1023.
Cody V. Quarterman (12 Ga. 386),

41, 206.
Coe V. Clay (5 Bing. 540), 671,

698.
Coe V. Hobby (72 N. Y. 141), 555,

1196, 1199, 1201.
Coe V. Wilson (46 Me. 314), 1328.
Coffin V. Lunt (69 Mass. 80), 163.
Coffin V. Yalman (8 N. Y. 465),

1284.
Coffman v. Hauck (24 Mo. 496),

318.
Coffman v. Huck (19 Mo. 435),

317.
Cofran v. Shepard (148 Mass.

582), 213, 237.
Coggins V. Flythe (113 N. C. 102),

16.
Cohen v. Candler (79 Ga. 427),

1448.
Cohn V. May (210 Pa. St. 615),

814.
Cohn V. Norton (57 Conn. 480),

672, 694, 695.
Cohn V. Smith (64 Wis. 816), 1432,

1459.
Cohen v. Dupont (13 N. Y. Super.

260), 1138, 1141, 1182.
Cohen v. Kyler (27 Mo. 122), 573.
Coit V. Planer (30 N. Y. Super. Ct.

413), 519.
Coke V. Gutkie^e (80 Ky. 598),

789.
Coker v. Britt (78 Miss. 583),

1412, 1467.
Coker v. Pearsall (6 Ala. 542), 30,

485.
Colburne v. Mixstone (1 Leon,

129), 1200.
Colburn v. Morrill (117 Mass.

262), 1180. •

Colby V. lies (11 A. & E. 335),

578.
Colclough V. Carpeles (89 Wis.

239), 245.
Colcord V. Hall (3 Head, Tenn.

625), 302.
Cole V. Johnson (120 Iowa, 667),

634.
Cole V. Lake Co. (54 N. H. 242),

432.
Cole V. Manners (Neb. 1906, 107

N. W. Rep. 777), 720, 723, 1463.
Cole V. Maxfield (13 Minn. 235),

931.
Cole V. McKey (66 Wis. 500), 814,

848, 849, 1097.
Cole V. Patterson (25 Wend. N. Y.

426), 1112.
Cole V. Seeley (25 Vt. 220), 18.
Colebeck v. Girdler's Co. (45 L. J.

Q. B. 225), 849.
Colegrove v. Dios Santos (2 Barn.

& Cress. 76), 1264.
Coleman v. Haight (14 La. Ann.

564), 697.
Coleman v. Reddick (25 U. C. C.

C. 579), 1145.
Coleman v. Siler (74 Ala. 435),

1438, 1489.
Colemore v. Whitroe (1 D. & Ry.

1), 945.
Coles V. Courtier (55 I. T. Rep.

N. S. 574), 544.
Coles V. Marquand (2 Hill, N. Y.

47), 1095.
Coles V. Peck (96 Ind. 333), 984,

999.
Coles V. Treoothick (9 Ves. Sr.

234), 98.
Collender v. Smith (20 Misc. Rep.

612), 551.
Coller V. Gardner (21 Beav. 151),

97.
Collett V. Curling (10 Q. B. 785),

522.
Collier t. Corbett (15 Cal. 183),

8L

Ixx

TABLE OF CASES CITED.

[references are to pages.]

Collier v. Pierce (7 Gray, Mass.

18), 410.
Collins V. Canty (6 Cush. Mass.

415), 178, 646.
Collins V. Collins (26 Beav. 306),

1273.
Collins V. Harding (Cro. Eliz.

607), 510.
Collins V. Hasbrouck (56 N. Y.

157), 1048.
Collins V. Karatopsky (36 Ark.

316), 1178, 1180.
Collins V. Lewis (53 Minn. 78),

702.
Collins V. Pratt (181 Mass. 345),

390, 1085, 1093.
Collins V. Sillye (Styles, 265),

639.
Collins V. Weller (7 T. R. 478), 8.
Collins V. Whildin (3 Phila. Pa.

102), 544.
Collins's Appeal (35 Pa. St. 83),

1441.
Collis V. Alburtis (9 Civ. Pro.

Rep. N. Y. 80), 554.
Collyer v. Collyer (113 N. Y. 442),

561, 573.
Coin V. Coin (24 S. C. 596), 349.
Colored, etc. Ass'n v. Harvey (23

Ky. Law Rep. 1009), 276.
Colt V. Palmer (30 N. Y. Super.

Ca. 413), 1069.
Colton V. Gorham (72 Iowa, 324),

644, 1057, 1212, 1213.
Columbia Brewing Co. v. Miller

(Mo. App. 101 S. W. Rep. 711),

558.
Columbia, etc. Co. v. Braillard (5

Wash. 492), 934.
Colville V. Miles (127 N. Y. 159),

1320.
Colwell V. Lawrence (38 N. Y.

71), 586.
Coman v. Thompson (47 Mich.

22), 1316.
Combs V. Midland Transfer Co.

(58 Mo. App. 112), 327, 388.

Comb's Case (9 Rep. 76), 106.
Comegys v. Russell (175 Pa. St.

■166), 1075.
Commagere v. Brown (27 La. Ann.

314), 775.
Commercial Bank v. Pritchard

(126 Cal. 600), 392.
Commercial Bulletin Co., In re (6

Fed. Cas. 3,060), 1119.
Commissioners v. Brown (2 Colo.

App. 473), 1249.
Commissioners v. Clark (133 N.

Y. 251), 139.
Commissioner v. Younger (29 Cal.

177), 469.
Commissioners of Rusk Co. v.

Stubbs (25 Kan. 322), 1265.
Commonwealth v. Centner (18 Pa.

St. 439), 505.
Commonwealth v. Harrington (3

Pick. Mass. 26), 778.
Commonwealth v. McNeile (8

Phila. 438), 454.
Commonwealth v. Pa. R. Co. (51

Pa. St. 351), 116.
Commonwealth v. Sheriff (3

Brewst. Pa. 537), 454.
Compton v. Allen (Style, 162,

Dyer, 33a), 882.
Compton V. Cassada (32 Ga. 428),

106.
Compton V. Chelsea (55 Hun, 609),

243.
Comstock V. Cavanagh (17 R. I.

233), 164.
Comstcok V. Oderman (18 111. App.

326), 863.
Comstock V. Scales (7 Wis. 159),

1426.
Conant v. Bellows Falls Canal Co.

(29 Vt. 263), 64.
Conde v. Lee (55 App. Div. 401),

940, 1254.
Coney & Parker v. Brunswick &

F. S. Co. (116 Ga. 222). 680.
Conger v. Atwood (28 Ohio St.

134), 52.

TABLE OP CASES CITED.

Ixxi

[references ABE TO PAGES.]

Conger v. Duryee (90 N. Y. 594),

1031.
Congregational Society v. Fleming

(11 Iowa, 533), 685, 1300.
Congregational Soc. in Newport v.

Walker (18 Vt. 600), 938.
Congregational Soc. of Sharon v.

Rix (Vt. 1889, 17 Atl. Rep. 719),

550, 1086.
Congress v. Evetts (10 Exch. 298),

1428.
Congreve v. Morgan (81 N. Y. 84),

825.
Conklin v. Carpenter (12 N. Y.

St. Rep. 632), 1329.
Conklin v. Foster (57 111. 105),

1110.
Conklin v. White (17 Abb. N. Y.

315), 526.
Conley v. Schiller (24 N. Y. Supp.

473), 487, 698, 1171.
Conn V. Conner (86 Iowa, 577),

998.
Connell v. Female Orphan Asylum

(18 La. Ann. 513), 1005.
Connock v. Jones (3 Excb. 233),

603.
Connolly v. Giddings (24 Neb.

131), 29.
Connor v. Bradley (1 How. U. S.

25), 633, 638.
Connor v. Withers (20 Ky. Law.

Rep. 1326), 1364, 1391.
Connors v. Clark (79 Conn. 100),

1365.
Conover v. Smith (17 N. J. Eq.

51), 1292.
Conrad v. Mining Co. (54 Mich.

249), 1249.
Conrad Seipp Brewing Co. v. Hart

(62 111. App. 212), 1161.
Conro V. Port Henry Iron Co. (12

Barb. N. Y. 27), 62.
Consolidated Coal Co. v. Peers (15

111. 344), 275, 457, 588.
Consolidated Coal Co. of St. Louis

V. Peers (166 111. 361), 1092.

Consolidated Coal Co. v. Peers (39

111.. App. 453), 534.
Consolidated Coal Co. v. Rainey

(69 111. App. 182), 1370.
Conway v. Carpenter (30 N. Y.

Supp. 315), 1224.
Conway v. Starkweather (1 Den.

N. Y. 113), 144.
Conwell V. Mann (100 N. Car.

234), 920.
Coogan V. Parker (2 S. Car. 255),

1353.
Cook V. Anderson (85 Ala. 99),

1154, 1155. 1340.
Cook V. Bisbee (18 Pick. Mass.

527), 373, 454.
Cook V. Guerra (41 L. J. C. P. 89),

500.
Cook V. Champion (1 Denio N. Y.

90), 722.
Cook V. Cook (Cro. Car. 531), 718.
Cook V. Cook (28 Ala. 660), 215.
Cook V. Folsom (2 Lane. Law

Rev. 185), 1254.
Cook V. Humber (11 C. B. N. S.

33), 283.
Cook V. Neilson (10 Pa. St. 41),

180.
Cook V. Jones (96 Ky. 283), 1391.
Cook V. San. Dist. of Chicago (67

111. App. 286), 1287.
Cook V. Sanford (3 Dana, Ky.

237), 106.
Cook V. Soule (45 How. Pr. N. Y.

340), 563, 702.
Cocke V. Brogan (5 Ark. 693). 333.
Cooke V. England (27 Md. 14),

860, 884, 878, 914.
Cooke V. Loxley (5 T. R. 4), 576,

921.
Cooke V. Wilson (1 C. B. N. S.

153), 105.
Cooley V. Cummings (16 N. Y. St.

Rep. 947). 429.
Cooley V. Willard (34 111. 68), 567.
Coolidge V. Hagar (43 Vt. 9), 447.

Ixxii

TABLE OF CASES CITED.

[references are to pages.]

Coombe v. Greene (2 D. N. S.

1023), 891, 912.
Coomber v. Hefner (86 Ind. 108),

155.
Coomber v. Howard (1 C. B. 440),

522.
Coombs V. Jordan (3 Bland, Ch.

Md. 284), 291.
Cooper V. Adams (6 Cush. Mass.

87), 223.
Cooper V. Cole (38 Vt. 385), 1427.
Cooper V. Gambill (146 Ala. 184),

165.
Cooper V. Johnson (143 Mass.

108), 1269.
Cooper V. Joy (105 Mich. 374),

1378.
Cooper V. Kimball (123 N. Car.

120), 1435.
Cooper V. Kollstadt (67 N. Y. Supp.

181), 1142.
Cooper V. Lawson (12 Det. Leg.

N. 34), 831.
Cooper V. Randall (59 111. 317),

704.
Cooper V. Rankin (5 Binn. Pa.

612), 97.
Cooper V. Robinson (10 M. & W.

694), 343.
Cooper V. Williams (4 Ohio 253),

116.
Cope V. Gilbert (4 Denio, N. Y.

347), 568.
Copeland v. Luttgen (40 N. Y.

Supp. 653), 1176, 1347.
Copeland v. State (60 Ind. 394),

10.
Copeland v. Watts (1 Starkie, 95),

1221.
Copper V. Fretnaransky (16 N. Y.

Supp. 866), 555.
Copper Mining Co. v. Beach (13

Beav. 478), 1370, 1372.
Coppinger v. Armstrong (5 111.

App. 637). 336.
Corbett v. Norcross (35 N. H. 99),

334.

Corbett's Case (3 Dyer, 280a),

1200.
Corby v. Brill Book, etc. Co. (76

Mo. App. 506), 163.
Corby v. MacSpadden (2 Mo. App.

Rep. 950), 191.
Cordes v. Miller (39 Mich. 581),

872.
Coro V. Greenwald (102 N. Y.

Supp. 752), 527.
Corey v. Bishop (48 N. H. 146),

1333.
Corle V. Monkhouse (47 N. J. Eq.

73), 1313.
Corn V. Rosenthal (1 Misc. Rep.

168), 1190.
Corneliss v. DriscoU (89 Mich.

34), 1171, 1186.
Cornell v. Lamb (2 Cow. N. Y.

652), 504.
Cornell v. Vanartsdalen (4 Pa. St.

364), 848, 907.
Cornish v. Cleife (11 L. T. 606),

891.
Cornish v. Searell (8 B. & C. 471),

483, 512, 923, 1226.
Cornish v. Stubbs (39 L. J. C. P.

202), 140, 155.
Corrigan v. Riley (26 N. J. L. 79),

82, 83, 920, 931.
Corrigan v. Stillwell (97 Me. 247),

917.
Coryton v. Litherbye (2 Saund.

115), 610.
Cosser v. Collinge (3 Myl. & K.

283), 1098.
Cotheal v. Talmage (9 N. Y. 551),

586.
Cottee V. Richardson (7 Ex. 143),

1232.
Cotton Mfg. Corporation v. Mel-

ven (15 Mass. 268), 522.
Couch V. Burke (2 Hill, S. Car.

534), 190.
Couch V. Davidson (109 Ala. 313),

1454.

TABLE OF CzVSES CITED,

Ixxiii

[references ABE TO PAGES.]

Couch V. steel (77 Eng. C. L. 402),

916.
Coudert v. Ck)hn (118 N. Y. 309),

147.
Cougle V. Densmore (57 111. App.

591), 1165.
Coughlin V. Coughlin (26 Kan.

116), 124.
Coulter V. Norton (100 Mich. 389),

1142,1145.
Countess ot Cumberland's Case

(Moore's Rep. 812), 718.
Countess of Plymouth v. Throg-

morton (1 Salk. 65), 539.
Coupe V. Piatt (172 Mass. 458),

814.
Courtney v. Lyndon (128 Cal. 35),

312.
Coward v. Gregory (15 L. T. 279),

661.
Cowan V. Henika (19 Ind. App.

45), 522.
Cowan V. Truefitt (67 L. J. Ch.

695), 419.
Cowell V. Lumley (39 Cal. 151),

851,1340.
Cowen V. Sunderland (145 Mass.

363), 788, 805.
Cowper V. Fletcher (6 B. & S.

464), 89.
Cox V. Bent (5 Bing. 185), 133,

187,192.
Cox V. Bishop (8 De G., M. & G.

815), 1106.
Cox V. Daughtery (62 Ark. 629),

957.
Cox V. Knight (18 C. B. 645), 511.
Cox V. Sammis (68 N. Y. Supp.

203), 155.
Cox V. Wayt (26 W. Va. 807), 336.
Coy V. Downie (14 Fla. 544), 1340.
Coyle V. Franklin (54 Fed. Rep.

644), 960.
Coyne v. Feiner (16 N. Y. Supp.

203), 243.
Cozens v. Stevenson (5 S. & R. Pa.

421), 463, 672.

Craddock v. Riddlesbarger (2

Dana, Ky. 205), 291, 1306, 1452.
Craddock v. Stewart (6 Ala. 77),

17.
Craig V. Butler (156 N. Y. 672),

1357.
Craig V. Gray (1 Cal. App. 598),

155.
Craig V. Summers (47 Minn. 189),

1014.
Grain v. Wright (36 Hun, 74),

351.
Cram v. Dresden (4 N. Y. Super.

Ct. 120), 1176.
Cram v. Kroger (22 111. 74), 920.
Crane v. Guthrie (47 Iowa, 542),

49.
Cram v. Munro (1 Edw. Ch. N. Y.

123), 1026.
Cramer v. Grosecloes (53 Mo. App.

684), 680.
Crampton v. Van Ness (6 Fed.

Gas. No. 3,348), 937.
Crane v. Hardaman (4 E. D.

Smith, N. Y. 339), 564.
Crane v. Morris (6 Pet. U. S. .598),

21.
Crane v. O'Reiley (8 Mich. 312),

198.
Crane v. Partland (9 Mich. 493),

366.
Crane v. Patton (57 Ark. 340),

270.
Cranston v. Rogers (83 Ga. 750),

1413.
Crane Elevator Co. v. Lippert (63

Fed. Rep. 942), 814, 815.
Craske v. Christian Union Pub.

Co. (17 Hun, N. Y. 319), 146.
Cratty v. Collins (13 111. 567),

1326.
Crawford v. Armstrong (58 Mo.

App. 214), 563.
Crawford v. Bertholf (1 N. J. Eq.

458), 349.
Crawford v. Coil (69 Mo. 588),

1467

Lxxiv

TABLE OP CASES CITED.

[eeferences are to pages.]

Crawford v. Kastner (63 How. Pr.

N. Y. 90), 1382.
Crawford t. Longstreet (43 N. J.

Law, 325), 63, 65.
Crawford v. Morris (5 Gratt. Va.

90), 162, 462.
Crawford v. Newton (36 W. R.

54), 888.
Crawford v. Redding (8 Misc. Rep.

306), 1152.
Crawford v. West Side Bank (100

N. Y. 50), 343.
Crawford v. Wick (18 Ohio St.

190), 384.
Crawley v. Price (L. R. 10 Q. B.

302), 622, 632, 1055.
Creager v. Creager (10 Ky. Law

Rep. 4240), 1119.
Creagh v. Blood (3 Jr. & Lat. 133),

1199.
Creech v. Crockett (5 Cush. Mass.

133), 234.
Creech v. Grainger (106 N. C.

213), 54.
Creighton v. Finlayson (46 Neb.

457), 103.
Creighton v. Sanders (89 111. 543),

384.
Crescent City WTiarf & Lighterage

Co. V. Simpson (77 Cal. 286), 61,

331.
Cressfield v. Morrison (7 C. B.

286). 1089.
Cressler v. Williams (80 Ind. 366),

262.
Creveling v. De Hart (54 N. J.

Law, 338), 1093.
Creveling v. West End Iron Co.

(51 N. J. Law, 34), 641.
Crewes v. Burcham (1 Black, 352),

39.
Crill V. Jeffrey (95 Iowa, 634),

1414.
Crinkley v. Egerton (11 N. C. 444),

318, 1435.
Crippen v. Morrison (13 Mich. 23),

29,33.

Cripps V. Blank (9 D. & R. 480)^

925.
Crisp V. Churchill (4 R. R. 822),

772.
Crisp V. Price (5 Taunt. 548), 442.
Critchfield v. Remsley (21 Neb.

1-8), 158.
Croade v. Ingraham (13 Pick.

Mass. 33), 118, 518, 932.
Crockett v. Althouse (35 Mo. App.,

404), 527, 924.
Crockett v. Campbell (21 Tenn.

411), 333.
Crockett v. Crockett (2 Ohio St.

180), 717.
Croft V. Lumley (5 El. & Bl. 648)^

612, 736, 1067.
Crofton V. Ormsby (2 Sch. & Lef.

583), 1003.
Cromie v. Hoover (40 Ind. 49),

1264.
Crommelin v. Thiess (31 Ala. 412),

195, 1044, 1176, 1180.
Cromwell v. Andrews (Cro. Eliz.

15), 531.
Croney, In re (6 Fed. Cas. 3411),

1120.
Cronin v. Rogers (1 Cob. & E.

348), 890.
Crook V. Crook (20 Abb. N. C.

249), 1391.
Crook V. Hewit (4 Wash. 749),

430, 684.
Crosby v. Brodbury (20 Me. 61),

437.
Crosby v. Donnowsky (69 S. W.

Rep. 612), 956.
Crosby v. Home & Danz Co. (45

Minn. 249), 258.
Crosby v. Loop (13 111. 625), 491,

1112.
Crosby v. Wadsworth (6 East,

602), 385.
Cross V. Tome (14 Md. 247), 505.
Cross V. United States (81 U. S.

479), 560.

TABLE OF CASES CITED.

Ixxv

[references are to pages.]

Cross V. Weare Commission (153

111. 499), 1109.
Crossman's Sons, J. v. Sanders

(114 La. 958), 1112.
Crotty V. Collins (13 111. 567), 676.
Crouch V. Briles (7 J. J. Marsh.

Ky. 255), 519, 573.
Crouch V. Fowle (9 N. H. 219),

698.
Crouse v. Frothingham (97 N. Y.

105), 1060.
Crouse v. Mitchell (9 Leg. N. 74),

lOSI.
Crowder v. Shackelford (35 Miss.

320), 52.
Crowe V. Riley (63 Ohio St. 1),

1044.
Crowe V. Wilson (65 Md. 479), 720.
Crowell V. Currier (27 N. J. Eq.

152), 533.
Crowell V. Railroad Co. (61 Miss.
631), 704.
Crowley v. Vitty (7 Ex. 319), 555,

1199.
Crowley v. Gormley (69 N. Y.

Supp. 576), 1086.
Crown Mfg. Co. v. Gay (9 Ohio

Dec. 420), 1178, 1183, 1214.
Crune v. Prideaux (10 East,

187), 8.
Crusoe v. Bugby (2 W. Bl. 776),

743,1051.
Crusselle v. Pugh (67 Ga. 430),

873.
Crutchfield v. Remaley (21 Neb.

178), 139.
Crystal Springs Distillery Co. v.

Cox (67 Fed. Rep. 693), 905.
Cubberly v. Cubberly (33 N. J. Eq.

82),53i
Cubbins v. Ay res (4 Lea, Tenn.

329), 1250.
Cudlip V. Rundle (Carth. 263),

223.
Cudworth v. Scott (41 N. H. 456),

1427.

f

Culton V. Gilchrist (92 Iowa, 718),

243, 252, 254.
Culverhouse v. Worts (32 Mo.

App. 419), 33, 1112, 1228.
Cummings v. Adam (4 N. J. L.

215), 1213.
Cummings v. Ayer (188 Mass.

292), 861.
Cummings v. Kilpatrick (23 Miss.

106), 920.
Cummings v. Rosenberg (6 Misc.

Rep. 538), 34.
Cummings v. Smith (114 111. App.

35), 483.
Cummings v. Perry (169 Mass.

150), 425.
Cummings v. Watson (149 Mass.

262), 54.
Cunning v. Tittabawasee Boom Co.

(88 Mich. 237), 937.
Cunningham v. Pattee (98 Mass.

248), 84, 1369.
Cunningham v. Wathen (14 App.

Div. 553), 470, 1072.
Cunningham v. Baxley (96 Ind.

367), 41, 47.
Cunningham v. Holton (55 Me.

33), 213, 223, 689.
Cunningham v. Horton (57 Me.

420), 690.
Curds V. Forts (9 Ky. 43), 326.
Curling v. Mills (7 Scott, N. R.

709), 257.
Curran v. Flammer (62 N. Y.

Supp. 1061), 847.
Currie v. White (45 N. Y. 822),

536.
Currier v. Earl (13 Me. 216), 212.

230.
Currier v. Gale (9 Allen, Mass.

522), 237.
Currier v. Perley (24 N. H. 219),

162,208.
Curry v. Bank (8 Port, Ala. 360),

65.
Curtice v. Thompson (19 N. H.

471), 794.

Ixxvi

TABLE OF CASES CITED.

[EEFEEENCFS ABE TO PAGES.]

Curtis V. Blair (26 Miss. 309), 98.
Curtis V. Galvin (1 Allen, Mass.

215), 209.
Curtis V. Hollenbeck (92 111. App.

34), 573.
Curtis V. Pierce (115 Mass. 186),

1023.
Curtis V. Smith (35 Conn. 156,

158), 437.
Curtis V. Spitty (1 Bing. N. C.

17), 575.
Curtis V. Sturgls (64 Mo. App.

535), 1378.
Curtis V. Treat (21 Me. 525), 258.
Curtiss V. Miller (17 Barb. N. Y.

477), 1238.
Cusack V. Gunning System (109

111. App. 588), 1386.
Cuschner v. Westlake (43 Wash.

690), 1096, 1099, 1240.
Gushing v. Adams (18 Pick. Mass.

110), 439, 440.
Cushing V. Kenfield (5 Allen,

Mass. 307), 679, 680.
Cuthbert v. Kuhn (3 Whart. Pa.

357), 507.
Cuthbertson v. Irving (6 H. & N.

135), 489, 923, 926, 941, 953.
Cutter V. Hamlen (Mass. 18 N. E.

Rep. 397), 796.
Cutting V. Derby (2 Black, 1075),

87.
Cutts V. York, etc. Co. (18 Me.

190), 343.

Dahm v. Barlow (93 Ala. 120),

644.
Dair v. Buffum (51 Me. 160), 1264.
Dakin v. Williams (21 Wend. N.

Y. 457), 645, 1059.
Dakota Hot Springs Co. v. Young

(9 S. D. 577), 663.
Dalay v. Rice (145 Mass. 38), 827.
Dalay v. Savage (145 Mass. 33),

792.

Dale V. Southern Ry. Co. (132 N.

C. 705), 686.
Dale V. Wood (2 Barn. & Ad. 724),

274.
Daley v. Quick (99 Cal. 179), 96,

788.
Dallas V. Pool (3 Mete. Mass. 350),

228.
Dallemand v. Manon (4 Colo. App.

262), 122.
Dallman v. King (4 Bing. N. C.

105), 909.
Dalton V. Gidson (77 N. E. Rep.

1035), 873.
Dalton V. Laudahn (27 Mich. 529),

523.
Daly V. Wise (132 N. Y. 306), 476,

782, 785, 786, 1051, 1355.
Dame v. Dame (38 N. H. 429), 189,

209.
Damery v. Ferguson (48 111. App.

224), 1315.
Damren v. Power Co. (91 Me.

334), 495.
Dana v. Burke (62 N. H. 627),

1248.
Dana v. Fiedler (1 E. D. Smith,

N. Y. 463), 537.
Dananberg v. Reinheimer (53 N.'

Y. Supp, 794), 1081.
Danby v. Hoffman (3 E. D. Smith,

N. Y. 361), 1094.
Dand v. Kingscote (6 Mee. & Wei.

197), 1115.
Danforth v. Sargeant (14 Mass.

491), 156, 158.
Daniels v. Bond (21 Pick. Mass.

367), 222.
Daniels v. Brown (34 N. H. 454),

309.
Daniels v. Davison (16 Ves. 249),

497,1075.
Daniels v. Logan (47 Iowa, 295),

1136,1182.
Daniels v. Pond (21 Pick. Mass.

367), 679, 1331.

TABLE OF CASES CITED.

Lxxvii

[referexces are to pages.]

Daniels v. Richardson (22 Pick.

Mass. 565), 20, 24, 543.
Daniels v. Straw (53 Fed. Rep.

327), 1382.
Daniels v. Willis (7 Minn. 295),

571.
Danielson v. Davidson (16 Ves.

253), 996.
Dann v. Spurrier (3 Bos. N. P.

399), 374, 376.
Danziger v. Falkenberg (64 Hun,

635), 1238, 1347, 1348.
Danziger v. Hoyt (46 Hun. N. Y.

270), 549.
Danziger v. Silberthau (18 N. Y.

Supp. 350), 726.
Danziger v. Williams (91 Pa. St.

234), 535.
D'Appuzo V. Albright (76 N. Y.

Supp. 654), 583.
Darby v. Anderson (1 Nott. & Me.

S. C. 369), 920.
Darby v. Jarndt (85 Mo. App.

274), 1430.
Darcey v. Steger (50 N. Y. Supp.

638), 1076.
D'Arcy v. Martin (63 Miph. 602),

369.
D'Arcy v. Miller (86 111. 102), 870.
Darity v. Darity (71 S. W. Rep.

950), 99.
Dark v. Donelson's Lessee (2 Yerg.

Tenn. 249), 223.
Darke v. Bowditch (8 Q. B. 973),

621.
Darling v. Kelly (113 Mass. 29),

685.
Darlington v. De Wald (194 Pa.

St. 305), 896.
Darmstaetter v. Hoffman (120

Mich. 48), 1086.
Darnall v. Hill (12 Gill & J. Md.

139), 22.
Darrell v. Johnson (17 Pick. Mass.

263), 156.
Darrill v. Stevens (4 McCord S. C.

39), 141.

Darse v. Fischer (10 Ohio Dec.

163), 814.
Dart V. Barbour (32 Mich. 271),

451.
Dartford Co. v. Till (95 L. T. 636),

752.
Dartnal v. Morgan (Cro. ifac. 598),

560.
Darwin v. Potter (5 Denio, N. Y.

306), 564, 879.
Dasher v. Ellis (102 Ga. 830), 957.
Dashiell v. Washington Market Co.

(10 App. D. C. 81), 818.
Dassori v. Zarek (75 N. Y. Supp.

841), 1090.
Dater v. Earl (3 Gray, Mass. 482),

776.
Dauchy Iron Works v. McKim Cas-
ket & Mfg. Co. (85 111. App.

584), 522.
Dausch v. Crane (109 Mo. 323),

484,958.
Davenport v. Magoon (13 Oreg. 3),

708.
Davenport v. Regina (47 L. J.

P. C. 8), 642, 655.
Davenport v. United States (26 Ct.

CI. 338), 895.
David V. Beelman (5 La. Ann.

545), 1178.
David V. Ryan (47 Iowa, 642), 872,,

883.
David Bradley & Co. v. Peabody

Coal Co. (99 111. App. 427), 35.
Davidson v. Crump (99 Mich. 501),

1265, 1270, 1375.
Davidson v. Davidson (28 La.

Ann. 269), 974.
Davidson v. Ellmaker (84 Cal. 21),

923.
Davidson d. Bromley v. Stanley

(4 Burr. 2210), 1201, 1202, 1214.
Davies v. Edwards (3 M. & S. 3S0),

559, 582.
Davies v. Mayor, etc. of New York

(83 N. Y. 207), 73.

Ixxviii

TABLE OP CASES CITED.

[references are to pages.]

Davies v. Oliver (1 Ridgw. P. C.

1),479.
Davies v. Thomas (6 Exch. 858),

187.
Davis V. Baldwin (66 Mo. App.

577), 158, 388.
Davis v.* Bridges (2 Roll's Abr.

25), 112.
Davis V. Brocklebank (9 N. H.

73), 1306.
Davis V. Buffum (51 Me. 160),

1296.
Davis V. Burrill (10 C. B. 822),

1032.
Davis V. Caldwell (12 Cush. Mass.

512), 18.
Davis V. Cincinnati (36 Ohio St.

24), 1034.
Davis V. Clancey (3 McCord, S. C.

422), 686.
Davis V. Days (42 S. C. 69), 1409.
Davis V. Del. & Hud. Canal Co.

(109 N. Y. 47, 51), 932.
Davis V. George (67 N. H. 393),

782, 787, 905.
Davis V. Hamilton (71 Ind. 135),

516.
Davis V. Harkncss (6 111. 173), 11.
Davis V. Jewett (13 N. Y. 88),

679.
Davis V. McGrew (82 Cal. 135),

924.
Davis V. Morris (31 N. Y. 569),

1048, 1090, 1096.
Davis V. Moss (38 Pa. St. 346),

1250, 1288.
Davis V. Murphy (126 Mass. 143),

208.
Davis V. Nash (32 Me. 411), 679,

680.
Davis V. Pacific Power Co. (107

Cal. 563), 801.
Davis V. Porter (10 Ohio Cir. Ct.

Rep. 243), 1244.
Davis V. Pou (108 Ala. 443), 938.
Davis V. Robert (89 Ala. 402), 276.

Davis V. Ross 138 Pa. St. 346),

1264.
Davis V. Smith (26 R. I. 129), 790.
Davis V. Thompson (13 Me. 209),

208, 216, 1306.
Davis V. Young (20 Ala. 151), 686.
Davis V. "Washington (18 Tex. Civ.

App. 67), 1422.
Davis V. Watts (90 Ind. 372), 22.
Davis V. Wiley (4 111. 234), 601.
Davis V. Williams (Ala. 1901, 30

So. Rep. 488), 922.
Davis V. Wilson (86 Tenn. 519),

1430.
Davis' Adm'r v. Smith (15 Mo.

467), 1340.
Davison v. Donadi (2 E. D. Smith,

N. Y. 121), 1238.
Davison v. Gent (1 H. & N. 744),

1213.
Davison v. Stanley (4 Burr. 2210),

1200.
Dawes v. Dowling (31 L. T. 65),

194,576.
Dawson v. Coffey (48 Mo. App.

109), 1431.
Dawson v. Coffman (28 Ind. 220),

708.
Dawson v. Dyer (5 Barn. & Ad.

584), 1387.
Dawson v. Sloan (100 N. Y. 620),

814.
Day V. Adams (42 Vt. 510), 333.
Day V. Austin (Owen, 70), 1256.
Day V. Bisbitch (Cro. Eliz. 374),

1256.
Day V. Cochran (24 Miss. 261),

234. .
Day V. Hammond (57 N. Y. 479),

569, 1274.
Day V. Watson (8 Mich. 535), 1131,

1182,1213.
Dayton v. Cralk (26 Minn. 133),

1198.
Dayton v. Vandoozer (39 Mich,

749), 1324, 1331.

TABLE OP CASES CITED.

Ixxix

[references are to pages.]

Deamond v. Harris (33 Tex. 634),

1340.
Dean v. De Lezardi (24 Miss. 424),

342.
Dean v. Murphy (169 Mass. 413),

810.
Deane v. Caldwell (127 Mass. 242),

1120,1338.
Deane v. Hutchinson (40 N. J. Eq.

83), 1110, 1244.
Dearmond v. Dearmond (10 Ind.

191), 349.
Deaton v. Taylor (90 Va. 219), 654.
De Bardeleben v. Crosby (5 Ala.

363), 1465.
Debow V. Colfax (10 N. J. Law,

128), 1309, 1310, 1331.
Debozear v. Butler (2 Grant Cases,

Pa. 417), 1228.
Decliarms v. Harwood (4 Maule &

Sel. 400), 90.
Decker v. Adams (12 N. J. Law,

99), 142, 234.
Decker v. Clarke (26 N. J. Bq.

163), 1111.
Decker v. Gardner (124 N. Y. 334),

1122.
Decker v. Gaylord (8 Hun, N. Y.

310), 331, 591.
Decker v. Hartshorn (60 N. J.

Law, 548), 262, 1214, 1221.
Decker v. Livingston (15 Johns.

N. Y. 479), 87, 90, 550.
Decker v. Sexton (43 N. Y. Supp.

167), 169.
De Clurq v. Barber Paving Co.

(167 111. 215), 1023.
De Coursey v. De Coursey (64 S.

W. Rep. 912), 939.
De Coursey v. Guarantee T. Co.

(81 Pa. St. 217), 1112.
Deer v. Doherty (26 Pittsb. Leg.

J. Pa. 104), 441.
De Forest v. Byrne (1 Hilt. N. Y.

43), 616, 757.
De Friest v. Bradley (192 Mass.

346), 1362.

De Frieze v. Quint (94 Cal. 662),

965.
De Giberville v. Stolle (9 Mb. App.

185), 173.
Degnario v. Sire (34 Misc. Rep.

163), 597.
De Graffenreid v. Wallace (53 S.

W. Rep. 452), 836.
De Jarnette v. McDaniel (93 Ala.

215), 968.
Delamater v. Bush (63 Barb. 168),

460.
De Lancey v. Ganong (9 N. Y. 9),

632,960.
Delaney v. Flanagan (41 Mo. App.

651), 139, 146, 151, 154.
Delano v. Montague (4 Cush. Mass.

42), 235.
Delany v. Fox (2 C. B. N. S. 768),

921,938.
Delashman v. Berry (20 Mich.

292), 1378.
Delaware & H. C. Co. v. Van Storch

5 Lack. Leg. N. 89), 1023.
Deller v. Hofferberth (127 Ind.

414), 836, 873.
Dellinger v. Gillespie (118 N. C.

737), 361.
Delmar Inv. Co. v. Blumenfeld

(118 Mo. App. 308), 1129, 1148.
De Loach v. Delk (47 S. E. Rep.

204), 311.
De Loge's Adm'r v. Hall (31 Mo.

473), 33L
Delph V. White (12 N. Y. 296),

1080.
Deluise v. Long Island R. Co. (66

N. E. Rep. 1106), 695.
Demarest v. Willard (8 Cow. N. Y.

206), 615, 1112.
Demi v. Hosier (1 P. & W. Pa.

224), 1308.
De Morat v. Falkenhagen (148 Pa.

St. 393), 1218.
Dempsey v. Kipp (61 N. Y. 462),

962.

K'xx

TABLE OF CASES CITED.

[references are to pages.]

Den V. Drake (14 N. J. Law, 523),

191.
Den V. Johnson (15 N. J. Law,

116), 331.
Den V. Kinney (5 N. J. L. 552),

716.
Den V. Post (25 N. J. Law, 285),

622.
Den V. Quimby (3 N. J. Law, 985),

21.
Den V. Rawlins (10 East, 261),

511.
Den ex dem. Bockover v. Post (25

N. J. Law, 285), 1052.
Denechaud v. Trisconi (26 La.

Ann. 402), 712.
Dengler v. Michelssen (78 Cal.

125), 1087, 1190.
Denham v. Harris (13 Ala. 465),

1441.
De Nicols t. Saunders (39 L. J.

C. P. 297), 531.

De Nicholls v. Saunders (22 L. T.

661), 500.
Denike v. N. Y. & Rosedale Co. (80

N. Y. 599), 61.
Denman v. Lopez (12 La. Ann.

823), 1347.
Denn. dem. Jacklin v. Cartright

(4 East, 29), 130.
Denn. d. Peters v. Hopkinson (3

D. & R. 507), 466.

Denn. d. Warren v. Fearnside (1

Wils. 176), 196.
Dennick v. Elkdahl (102 111. App.

199), 1131. 1136, 1176.
Dennis v. Maynard (15 111. 457),

65.
Dennis v. Miller (53 Atl. Rep.

394), 1195.
Dennison v. Grove (53 N. .1. Law,

144), 480, 782.
Dennison v. Read (3 Dana, Ky.

586), 622.
Dennlson's Ex'rs v. Wertz (7 S.

& R. Pa. 372), 1220.

Dennistoun r. Hubbel (10 Bos. N.

Y. 155), 1062.
Denton v. Taylor (90 Va. 219),

645, 1058.
Depard v. Wallbridge (15 N. Y.

374), 1379.
De Pere Co. v. Raynor (65 Wis.

271), 317, 943.
Depuy V. Silver (1 Clark, Pa. 388),

564.
Derby v. Brandt (90 N. Y. Supp.

980), 1126.
De Ridder v. Schermerhorn (10

Barb. N. Y. 638), 331.
Derrick v. Luddy (64 Vt. 462),

927,948.
De Rutte v. Muldrow (16 Cal.

505), 981.
Desban v. Pickett (16 La. Ann.

350), 1446.
Descarlett v. Dennet (9 Mod. 22),

666.
Desha v. Pope (6 Ala. 691), 1445.
De Silva v. Flynn (9 City Prov.

Rep. N. Y. 426), 291.
Deslandes v. Gregory (2 E. & E.

602), 105.
Des Moines Co., etc. v. Tubbessing

(87 Iowa, 138), 277.
Despard v. Wallbridge (15 N. Y.

374), 935.
De Tarr v. Ferd. Heim Brewing

Co. (62 Kan. 188), 836.
De Taslet v. Croussellat (1 Wash.

C. C. 504), 1042.
Detwiler's Appeal (96 Pa. St. 323),

1119.
Devacht's Lessee v. Newsam (3

Ohio, 57), 920, 934.
Devoe v. Railway Co. (63 N. J.

Law, 276), 836.
Devlin & Co., In re (48 N. Y. Supp.

950), 1062.
Devonshire (Duke) v. Brookshaw

(81 L. T. 83). 748.
Doutsfh v. Chemical Co. (11 Ohio

Dec. 495), 300.

TABLE OP CASES CITED.

]yxxi

[references are to pages.]

Dewey v. Lambier (7 Cal. 347), 90.
De Witt V. Harvey (4 Gray, Mass.

486), 84.
De Witt V. Pierson (112 Mass. 8),

1136, 1160, 1168, 1176.
De Witt V. Sullivan (8 Cal. 592),

936.
De Wolf V. Martin (12 R. I. 535),

21,924.
Dexter v. King (8 N. Y. Supp.

489), 863.
Dexter v. Manly (4 Cush. Mass.

14), 697, 1185.
Dexter v. Phillips (121 Mass. 178),

539.
Dexter v. Tree (117 111. 532), 409.
Dey V. Greenbaum (152 N. Y. 641),

1069.
Deyo V. Bleakley (24 Barb. N. Y.

9) 347.
Dial V. Levy (39 S. C. 265), 1084.
Diamond Plate-Glass Co. v. Ter-
rell (22 Ind. App. 346), 456.
Dickerson v. Merriman (100 111.

342), 349.
Dickinson v. Consolidated Traction

Co. (119 Fed. Rep. 817), 66.
Dickinson v. Conway (12 Allen,

Mass. 487), 101.
Dickinson v. Goodspeed (8 Cush.

Mass. 119), f89, 690.
Dickey v. Harper (6 Yerg. Tenn.

280), 147.
Dickson v. Hunt (Ohio, 13 Wkly.

Law Bui. 13), 1173.
Dickson v. Kempinsky (96 Mo.

252), 473.
Diehl V. Lee (Pa. 1887, 9 Atl. Rep.

865), 1207, 1209.
Dierig v. Callahan (70 N. Y. Supp.

210), 1220.
Dietz v. Kucks (Cal. 45 Pac. Rep.

832), 1092.
Dietz V. Winehill (6 Wash. 109),

28.
Diffenderfer v. St. L. Pub. School

(120 Mo. 447), 1370.

Digby V. Atkinson (4 Camp. 275),

140, 144, 883.
Dill V. School Board of City of

Camden (47 N. J. Eq. 421), 441.
Dillingham v. Jenkins (7 S. & M.

Miss. 479), 41.
Dillon V. Brown (11 Gray, Mass.

179), 228.
Dillon V. Carrol (2 Luz. L. R. 89),

855.
Dillon V. Wilson (24 Mo. 278),

1309.
Dilworth v. Rice (48 Mo. 124), 54.
Dimmock v. Daly (9 Mo. App.

354), 1131, 1145.
Dinehart v. Wilson (15 Barb. N.

Y. 595), 309.
Ding V. Kennedy (7 Colo. App.

72), 91.
Dingley v. Buffum (57 Me. 381),

223,1264.
Dingman v. Kelley (7 Ind. 717),

336.
Dircks v. Brant (56 Md. 500),

1309.
Dishman v. Huetter (41 Wash.

626), 741.
Disselharst v. Cadogan (21 111.

App. 179), 491, 492.
District of Columbia v. Johnson

(1 Mackey, D. C. 51), 925.
District Township of Corwin v.

Morehead (43 Iowa, 466), 382.
Dix V. Atkins (130 Mass. 171),

1364.
Dixon V. Ahearn (19 Nev. 422),

258, 573.
Dixon V. Bradford (73 L. J. K. B.

136), 165.
Dixon v. Buell (21 111. App. 203),

1117.
Dixon V. Finnegan (Mo. 1904, 81

S. W. Rep. 576), 336, 920.
Dixon V. Haley (16 111. 145), 235.
Dixon V. Nicolls (39 111. 372), 49,

522.
Dixon v. Roe (7 C. B. 134), 634.

Ixxxii

TABLE OF CASES CITED,

[references are to pages.]

Dixon V. Stewart (113 N. C. 410),

920.
Doane V. Garretson (24 Iowa, 351),

1409.
Doane v. The Broad Street Ass'n

(6 Mass. 332), 448.
Dobschuetz v. Halliday (82 111.

371), 1254.
Dockham v. Parker (9 Me. 137),

1318.
Dockrill v. Schenck (37 111. App.

44), 176.
Dockstader v. Young Men's C. A.

(109 N. W. Rep. 906), 272.
Dodd V. Acklom (6 Man. & G. 673),

1199, 1207, 1210, 1226.
Dodd V. Bartholomew (44 Ohio St.

171), 341.
Dodd V. Butler (7 Mo. App. 583).

326.
Dodd V. Rothschild (31 Misc. Rep.

721), 836, 837.
Dodge V. Lambert (2 Bosw. N. Y.

570), 758.
Dodge V. Phelan (2 Tex. Civ. App.

441), 950.
Doe V. Allen (8 T. R. 148), 401.
Doe V. Amey (12 Ad. & El. 476),

147.
Doe V. Ashburner (5 T. R. 163),

240.
Doe V. Ashman (22 N. J. Law,

261), 936.
Doe V. Bancks (4 B. & A. 401),

642.
Doe V. Benjamin (9 Ad. & E. 644),

244.
Doe V. Bevan (3 M. & S. 353),

1054,1322.
Doe V. Black (8 C. & P. 464), 370.
Doe V. Boulter (6 Ad. & El. 675),

483.
Doe V. Brooks (2 Campb. 257),

172.
Doe V. Brown (5 IMackf. Ind. 309),

24.
Doo V. Burt (1 T. R. 701), 456.

Doe V. Butcher (1 Doug. 50), 5.
Doe V. Clayton (73 Ala. 359), 485.
Doe V. Clare (2 T. R. 739), 246.
Doe V. Clifford (4 Dowl. & Ry.

248), 168.
Doe V. Collings (7 C. B. 939), 147.
Doe V. Dixon (9 East, 15), 454.
Doe V. Edwards (5 Ad. & El. 95),

483.
Doe V. Elsom (1 M. & M. 189), 770.
Doe V. Fleming (2 Ohio, 501), 84.
Doe V. Giles (5 Ring. 421), 232.
Doe V. Godwin C4 M. & S. 265),

665, 770, 1055.
Doe V. Gordan (4 M. & S. 265),

622.
Doe V. Gladwin (6 Q. B. 953), 659.
Doe V. Groves (15 East, 244), 244.
Doe V. Guy (4 Esp. 154), 55.
Doe V. Hall, Benson (4 B. & Aid.

588), 466.
Doe V. Hayes (7 Taunt. 222), 55.
Doe V. Hogg (4 Dowl. & R. 226),

665.
Doe V. Jones 115 M. & W. 580),

962.
Doe V. Keeling (1 M. & Sel. 95),

770.
Doe V. Lucas (5 Esp. 155), 175.
loe V. Lyde (1 T. R. 393), 43.
Doe V. Maisey (8 Bar. & Cres.

767), 232.
Doe V. Miles (1 Stark. 181), 44,

370.
Doe V. Morse (1 B. & Ad. 365), 515.
Doe V. Palmer (16 East, 36), 177.
Doe V. Peck (1 Barn. & Adol. 428),

1038.
Doe V. Porter (3 T. R. 13), 158.
Doe V. Rees (4 Bing. N. C. 384),

647.
Doe V. Rees (6 Car. & P. 610), 962.
Doe V. Sandham (1 T. R. 705),

364, 1340.
Doe V. Smith (8 Ad. & El. 255),

483.
Doe V. Smith (6 East, 530), 246.

TABLE OF CASES CITED.

Ixxxiii

r REFERENCES ARE TO PAGES.]

Doe V. Spiller (6 Esp. 70), 166.
Doe V. Spry (1 Barn. & Ad. 617),

770.
Doe V. Stevens (3 B. & Ad. 299),

612, 663.
Doe V. Turner (7 M. & W. 226),

228.
Doe V. Weller (7 T. R. 478), 25,

160.
Doe V. Wilkinson (3 Bar. & Cres.

413), 511.
Doe V. Withewick (10 J. B. Moore,

267), 1331.
Doe V. Woodbridge (9 Barn. & C.

376), 659.
Doe V. Woodman (8 East, 228),

174.
Doe V. Wrightman (4 Esp. 5), 174.
Doe d. Agar v. Brown (2 El. & Bl.

331), 485.
Doe d. Ambler v. Woodbridge (4

M. & Ry. 376), 659.
Doe d. Aslin v. Summersett (IB.

& Ad. 135), 89.
Doe d. Baddeley v. Massey (17 Q.

B. 373), 962.
Doe d. Bailey v. Foster (3 C. B.

215), 135.
Doe d. Baker v. Jones (5 Ex. 498),

659, 889.
Doe d. Barker v. Goldsmith (2 C.

& J. 674), 640.
Doe d. Bennett v. Turner (7 Mee.

& Wei. 226), 234.
Doe d. Berkeley v. York (6 East,

86), 1214.
Doe d. Bish v. Keeling (1 M. & S.

95), 739.
Doe d. Bishop of Rochester v.

Bridges (1 B. & Ad. 847), 1202.
Doe d. Boscawen v. Bliss (4 Taunt.

735), 661.
Doe d. Bradford v. Watkins (7

East, 551), 169.
Doe d. Brammell v. Collinge (7 C.

B. 939), 388.

Doe d. Bryan v. Bancks (4 B. &

Aid. 401), 647.
Doe d. Bute (Marquis) v. Guest

(15 Mee. & W. 160), 607.
Doe d. Calvert v. Frowd (4 Bing.

557), 965.
Doe d. Chadburn v. Green (9 A.

& E. 658), 44, 130.
Doe d. Cheney v. Batten (Cowp.

243), 647.
Doe d. Clark v. Smarridge (7 Q.

B. 957), 140.

Doe d. Colnaghi v. Bluck (8 C. &

P. 464), 44.
Doe d. Cornwell v. Matthews (11

C. B. 675), 160.

Doe d. Courtail v. Thomas (4 M. &

Ry. 218), 1237.
Doe d. Croft v. Tidbury (14 C. B.

304), 961.
Doe d. Dalton v. Jones (1 N. & M.

6), 908.
Doe d. David v. Williams (7 Car.

& P. 322), 184.
Doe d. Davies v. Evans (9 M. &

W. 48), 966, 967.
Doe d. Mitchinson v. Carter (3 T.

R. 57), 1065.
Doe d. Davies v. Thomas (6 Exch.

854), 210, 215.
Doe d. Dillon v. Parker (Gow.

180), 967.
Doe d. Earl of Egremont v. Cour-

tenay (11 Q. B. 702), 1202.
Doe d. Egremont v. Forwood (3 Q.

B. 627), 1202.
Doe d. Ellerbrock v. Flynn (1 C.

M. & R. 137), 966.
Doe d. Eyre v. Lambly (2 Esp.

635), 160.
Doe d. Fisher v. Giles (5 Bing.

421), 233.
Doe d. Flower v. Peck (1 B. & Ad.

428), 648.
Doe d. Foster v. Wandlass (7 T. R.

117), 634.

Ixxxiv

TABLE OP CASES CITED.

[REFEBENCES ABE TO PAGES.]

Doe d. Freeman v. Bateman (2 B.

& Aid. 168), 640.
Doe d. Fuller (Tyr. & G. 17), 952.
Doe d. Gaskell v. Spry (1 B. &

Aid. 617), 741.
Doe d. Godfrey v. Beardsley (2 Mc-

Clean C. C. 417), 38.
Doe d. Graves v. Wells (10 Ad. &

El. 427), 182.
Doe d. Gray v. Stanlon (1 M. & W.

695), 183.
Doe d. Green v. Baker (2 Moore,

189), 644.
Doe d. Grubb v. Grubb (10 B. & C.

816), 183, 965.'
Doe d. Henniker v. Watt (8 B. &

C. 308), 620.
Doe d. Hiatt v. Miller (5 Car. &

P. 595), 198.
Doe d. Hollingsworth T. Stennet

(2 Esp. 717), 140.
Doe d. Hughes v. Jones (9 Mee. &

Wei. 372), 380.
Doe d. Higginbotham v. Barton (11

Ad. & El. 307), 921.
Doe d. Hindley v. Rickarby (5

Esp. 4), 1070.
Doe d. Hull V. Wood (14 M. & W.

682), 136, 187, 190.
Doe d. Jackson v. Ashbumer (5

Term. Rep. 163), 257.
Doe d. Joliffe v. Sybourn (2 Esp.

667), 7.
Doe d. Jones v. Jones (10 B. & C.

718), 203.
Doe d. Kensington v. Brindley (12

Moore, 37), 658.
Doe d. Knight v. Rowe (2 Car. &

P. 246), 657.
Doe d. Lewis v. Rees (6 C. & P.

610). 961.
Doe d. Lewis v. Cawder (1 C. M.

& R. 392). 183.
Doe d. Lloyd v. Powell (8 D. & R.

35) 1066.
Doe d. Lord v. Crago (6 C. B. 90),

133. 141, 511.

Doe d. McCartney v. Crick (5 Esp.

196), 166. 169.
Doe d. Manton v. Austin (2 M. &

S. 107), 368.
Doe d. Marecraft v. Meux (1 C.

& P. 346), 651.
Doe d. Martin v. Watts (7 Term

Rep. 832), 3.
Doe d. Mitchell v. Weller (1 Jur.

624), 522.
Doe d. Mitchlnson v. Carter (8 F.

R. 57), 1322.
Doe d. Moore v. Lawder (1 Stark.

308), 230, 234.
Doe d. Morgan v. Powell (8 Scott,

N. R. 687), 247.
Doe d. Morris v. Williams (6 B.

& C. 41), 169.
Doe d. Mustin v. Gladwin (6 Q. B.

953), 659.
Doe d. Nash v. Birch (1 Mee. &

Wei. 402), 644, 648.
Doe d. Nicholl v. McKeagg (10

Bar. & C. 721), 203.
Doe d. Parker v. Boulton (6 M. &

S. 148), 198.
Doe d. Parry v. Hazell (1 Esp. 94),

159,161.
Doe d. Peacock v. Raffan (6 Esp.

4), 161.
Doe d. Pearson v. Ries (8 Bing.

178), 257.
Doe d. Pennington v. Taniere (12

Q. B. 998), 133.
Doe d. Phillips v. Benjamin (9 A.

& E. 644), 245, 256, 257.
Doe d. Pievin v. Brown (7 A. & E.

447). 925.
Doe d. Pitt V. Hogg (4 D. & R.

226), 1051.
Doe d. Pittman v. Sutton (9 Car.

& P. 706), 897.
Doe d. Polk v. Marchetti (B. & Ad.

715), 625, 626.
Doe d. Poole v. Errington (1 Ad, &

E. 750), 86.

TABLE OP CASES CITED.

IXKXV

[references ABE TO PAGES.]

Doe (1. Potter v. Archer (1 Bos. &

P. 531), 8,
Doe d. Price v. Price (2 M. & Scott,

464), 215.
Doe d. Prior v. Ongley (10 Com.

Bench, 25), 952.
Doe d. Pritchard y. Dodd (2 N. &

M. 838), 193.
Doe d. Rains v. Keller (4 Car. &

P. 3), 519.
Doe d. Rankin v. Brindley (1 N. &

M. 1), 6.
Doe d. Rawlings v. Walker (5 B.

& C. Ill), 1200.
Doe d. Rigg v. Bell (5 Term Rep.

471), 147.
Doe d. Roberts v. Polgrean (1 H.

Black, 535), 20.
Doe d. Roby v. Malsey (6 B. & C.

767), 234.
Doe d. Rochester v. Pierce (2

Camp. 96), 166.
Doe d. Rogers v. Pullen (3 Scott,

271), 147.
Doe d. Rutzen v. Lewis (5 A. & E.

277), 662.
Doe d. Sheppard v. Allen (3 Taunt.

78), 658.
Doe d. Shore v. Porter (3 Term

Rep. 13), 42.
Doe d. Simpson y. Bitcher (1

Doug. 50), 7.
Doe d. Sore v. Eykins (1 Car. &

P. 154), 658.
Doe d. Stanway v. Rock (6 Jui-.

266), 198.
Doe d. Strickland v. Spence (6

Bast, 120), 158.
Doe d. Taylor v. Johnson (1 Stark,

411), 648.
Doe d. Thompson v. Amey (4 P. &

D. 177), 149.
Doe d. Vaughan v. Meyler (2 M,

& S. 276), 540.
Doe d. Walker v. Groves (15 East,

244), 257.

Doe d. Warner v. Brown (8 East,

165), 157.
Doe d. West Moreland v. Smith (1

M. & Ry. 137), 193.
Doe d. Wetherill v. Bird (4 N. &

M. 285), 747, 907.
Doe d. Whitehead v. Pitman (2 W.

& M. 672), 183.
Doe d. Williams v. Cooper (1 Man

& G. 135), 182, 183, 966.
Doe d. Williams v. Pasquali (3 R,

R. 188), 182.
Doe d. Wood v. Clarke (7 Q. B,

211), 260.
Doe d. Wood v. Morris (12 East,
■ 237), 582.
Doepfner v. Bowers (102 N. Y.

Supp. 920), 1379.
Doepfner v. Michaelis (144 Fed.

Rep. 1021), 799.
Dolan V. Scott (25 Wash. 214). 535.
Dolby V. lies (11 Ad. & El. 335),

576,922.
Dcld's Trustee v. Geiger's Adm'r

(2 Gratt. Va. 98), 22.
Dole V. Thurlow (53 Mass. 157),

333.
Dolese v. Barbreat (9 La. Ann.

352), 154.
Dollar V. Roddenbery (97 Ga. 148),

1329.
Dollard v. Roberts (130 N. Y. 269),

800, 804, 814.
Dolling V. Evans (15 W. R. 394),

259, 386.
Dolph V. White (12 N. Y. 296), 518,

1086.
Dolton V. Sickel (66 N. J. Law,

492), 1175, 1180. 1214.
Domestic Tel. Co. v. Met. Tel. Co.

(39 N. J. Eq". 160), 984.
Dominick v. Michael (4 Sandf. Ch.

N. Y. 374), 53.
Donahoe v. Rich (2 Ind App. 540),

1213.
Donohue v. Chicago Bank Note Co.

(37 111. App. 552), 163,

Ixxxvi

TABLE OP CASES CITED.

[references are to pages.]

Donald v. Elliott (32 N. Y. S. 821),

721.
Donaldson v. Smith (1 Ashm. Pa.

197), 522.
Donate v. Morrison (160 Mo. 581),

1186.
Donegal (Marquis) v. Grey (13 Ir.

Eq. R. 12), 479.
Donellan v. Read (3 B. & Ad. 899),

265,381.
Donlan Mfg. Co. v. Cannella (89

Hun, 21), 1126.
Donnelly v. Eastes (94 Wis. 390),

666.
Donnelly v. Frick & Lindsay Co.

(207 Pa. St. 524), 1265.
Donnewald v. Turner R. Estate

Co. (44 Mo. App. 350), 1266.
Donkersley v. Levy (38 Mich. 54),

1195.
Donohue v. Chicago Bank Note Co.

(37 111. App. 552), 148, 151.
Donovan v. Schoenhaefer Brew.

Co. (92 Mo. App. 341), 247, 250.
Doolan v. McCauley (66 Cal. 476),

960.
Doolittle V. Eddy (7 Barb. N. Y.

78), 198.
Doolittle V. Selkirk (28 N. Y.

Supp. 43), 1207.
Doran v. Chase (2 W. N. C. Pa.

609), 1154.
Doremus v. Howard (23 N. J. Law,

390), 1318.
Dorman v. Ames (12 Minn. 451),

794.
Dorman v. Plowman (41 Wash.

477). 335.
Dorman v. Wilson (39 N. J. Law,

474), 549.
Dorrace v. Bonesteel (64 N. Y.

Supp. 307), 1207.
Dorrance v. Jones (27 Ala. 633),

1061.
Donill v. Stei)hens (4 McCord,

S. C. 59), 950.

Dorrill v. Stevens (5 McCord, S.

C. 49), 144.
Dorsett v. Gray (98 Ind. 273), 49.
Dorsey v. Eagle (7 G. & J. Md.

321), 1314.
D'Orval v. Hunt (Dud. Law S. C.

180), 377.
Dostal v. McCaddon (35 Iowa,

318), 1264.
Doty V. Burdick (83 111. 473), 843.
Doty V. Gillett (43 Mich. 203),

1096.
Doty V. Heth (52 Miss. 530), 311,

1095, 1096.
Dougal V. McCarthy (4 Reports,

402), 140.
Douglas V. Cheesebrough Building

Co. (67 N. Y. Supp. 755), 566.
Douglas V. Murphy (16 U. C. Q. B.

113), 1041.
Douglass V. Wiggins (1 John. Ch.

N. Y. 435), 712, 724.
Dougherty v. Matthews (35 Mo.

520), 1059.
Dougherty v. Seymour (16 Colo.

289), 771, 773.
Dougherty v. Spencer (23 in. App.

357), 1300.
Dougherty v. Wagner (2 W. N. C.

291), 1158.
Dougherty v. Wilson (1 Blackf.

Ind. 478), 672.
Dowd v. Gilchrist (46 N. Car. 453),

198, 940.
Dowie V. Christen (115 Iowa, 364),

1435.
Dowdney v. The Mayor, etc. of the

City of New York (54 N. Y. 186),

1015.
Dowling V. Nuebling (97 Wis.

350), 785.
Downing v. Jones (11 Daly, N. Y.

245), 616, 1391.
Downward v. Groff (40 Iowa. 597),

288, 1326.
Dows V. Morse (62 Iowa, 231), 327.
Dowse v. Cole 1 2 Vent. 126), 892.

TzVBLE OP CASES CITED.

Ixxxvii

[KEFEEETfCES ARE TO PAGES.]

Dowse V. Earle (3 Lev. 253), 892.
Doxey Est. v. Service (65 N. E.

Rep. 757), 329.
Doyle V. Gibbs (6 Lans. N. Y. 80),

191, 218..
Doyle V. Lloyd (64 N. Y. 432), 406.
Doyle V. Lord (64 N. Y. 432), 399,

442.
Doyle V. Union Pac. R. R. Co. (147

U. S. 413), 783.
Doyly V. Capp (99 Cal. 153), 1404.
Drake v. Chicago, etc. Co. (70

Iowa, 59), 685.
Drake v. Cockroft (4 E. D. Smith,

N. Y. 34), 565.
Drake v. Lacoe (157 Pa. St. 17),

657.
Drake v. Mitchell (3 East, 251),

549.
Drake v. Newton (23 N. J. Law),

146.
Drakford v. Turk (75 Ala. 339),

1403.
Draper v. Salisbury (11 Misc. Rep.

573), 1060, 1062.
Draper v. Stouvenal (35 N. Y.

512), 24.
Drennan v. Grady (167 Mass. 415),

801.
Dresser v. Dresser (40 Barb. N. Y.

300), 83.
Drew V. Billings-Drew (9 Det.

Leg. N. 513), 1195, 1213.
Drey v. Doyle (28 Mo. App. 249),

152, 164, 176.
Dreyfus v. Hirt ("82 Cal. 621), 486.
Dreyfus v. W. A. Gage & Co. (84

Miss. 219), 1452.
Driggs V. Dwight (17 Wend. N. Y.

71), 693.
Driver v. Jenkins (30 Ark. 120),

1428.
Driver v. Maxwell (56 Ga. 11),

852.
Drohan v. Drohan (1 Ball & B.

185), 56.

Drought & Co. V. Stallworth (100

S. W. Rep. 188), 122.
Drucker v. Simon (4 Daly, N. Y.

53), 1177, 1182.
Druhan v. Adam (9 La. Ann. 527),

731.
Drury v. Connor (1 Har. & G. Md.

220), 11, 15.
Drury v. Molins (6 Ves. 328), 765.
Duane v. Trustees (39 111. 578),

218.
Dubois V. Del. & Hud. Canal Co.

(4 Wend. N. Y. 290), 1227.
Dubois V. Marshall (3 Dana, Ky.

336), 949, 950.
Dubuque v. Miller (11 Iowa, 558),

61, 141.
Ducan v. Hartman (143 Pa. St.

595), 100.
Ducey Lumber Co. v. Lane (59

Mich. 521), 298.
Duchane v. Goodtitle (1 Blackf.

Ind. 117), 47.
Duckklee v. Webber (151 Mass.

408), 106.
Dudley v. Estell (6 Leigh, Va.

562), 1136.
Dudley v. Kelly (74 Me. 346), 195.
Duer v. Allen (96 Iowa, 36), 844.
Duff V. Hart (16 N. Y. S. 163),

1169.
Duff V. Wilson (69 Pa. St. 316),

492.
Duffiled V. Hue (129 Pa. St. 94),

665.
Duffield V. Rosensweig (144 Pa.

St. 520), 687.
Duffitt V. Tuhan (28 Kan. 292).

957.
Duffy V. Carman (3 Ind. App. 207),

262.
Duffy V. Day (42 Mo. App. 638),

1235.
Duffy V. Ogden C64 Pa. St 240),

131.
Duffus V. Bangs (122 N. Y. 423),

1434.

AXXXVIU

TABLE OP CASES CITED.

[reitibexces are to pages.]

Duke V. Compton (49 Mo. App.

304), 486.
Duke V. Harper (6 Yerg. Tenn.

280), 196, 965, 966.
Duke of Chandos v. Talbot (2 P.

Wms. 606), 718.
Duke of Leeds v. Amhurst (14

Sim. 357), 726.
Duke of Somerset v. Fogwell (5 B.

& C. 875), 110.
Dulaney v. Dickerson (12 Ala.

601), 1432.
Dulanty v. Pynchon (6 Allen,

Mass. 510), 122.
Dumper v. Syms (Cro. Eliz. 816),

1054.
Dumpor's Case (4 Coke, 1191),

645.
Duncan v. Blake (9 Lea, Tenn.

534), 465.
Duncan v. Hartman (143 Pa. St.

595), 105.
Duncan v. Moloney (115 111. App.

522), 1196.
Duncklee v. Webber (151 Mass.

408), 245, 697, 1172.
Dunklee v. Wilton R. Co. (24 N.

H. 489), 438.
Dundy v. Chambers (23 111. 369),

333.
Dunlap V. Bullard (131 Mass. 161),

1021.
Dunlap V. Dunseath (81 Mo. App.

17), 1409, 1435.
Dunlap V. Steele (80 Ala. 424),

1434.
Dunlop V. James (174 N. Y. 411),

1031, 1080.
Dunlop V. Mulry (85 App. Div.

498), 1051.
Dunn V. Barton (16 Fla. 765), 769.
Dunn V. Dinuovo (3 Man. & G.

105), 1176.
Dunn V. Dunn (3 Colo. 510), 604.
Dunn V. Jeffery (36 Kan. 408),

372, 609.
Dunn V. Kelly (57 Miss. 825), 1432.

Dunn V. Mellon (147 Pa. St. 11),

1163.
Dunn V. Robbins (20 N. Y. Supp.

341), 856.
Dunn V. Rothermel (112 Pa. St.

272), 133, 172, 197, 454.
Dunn V. Spears (5 Rich. S. Car.

17), 1415.
Dunne v. Trustees (39 111. 578),

192.
Dunning v. Mauzy (49 111. 368),

1222.
Dunning v. Ocean Bank (61 N. Y.

497), 53.
Dunphy v. Goodlander (12 Ind.

App. 609), 158.
Dunsdale v. Robertson (2 Jones &

Lat. 58), 572.
Dunshee v. Grundy (15 Gray,

Mass. 314), 944.
Durand v. Curtis (57 N. Y. 7),

1045, 1090, 1093.
Durando v. Wyman (4 N. Y. Super.

Ct. Rep. 597), 1069.
Durant v. Doe (6 Bing. 574), 173.
Durkee v. Carr (38 Oreg. 189),

634.
Durrell v. Emery (64 N. H. 223),

573.
Duryee v. Turner (20 Mo. App.

34), 522.
Dussman v. Husband (6 La. Ann.

279), 1347.
Dutch V. Mead (36 N. Y. Super.

Ct. 427), 327.
Dutcher v. Culver (24 Minn. 584),

505.
Dutton V. Gerish (9 Cush. Mass.

89), 464, 782, 7'85, 786, 847.
Duxbury v. Sandiford (80 Law T.

N. S. 552), 269.
Dwight V. Cutler (3 Mich. 566),

198, 319.
Dwinell v. Bliss (58 Vt. 363), 349.
Dwyer v. Carroll (86 Cal. 298),
852, 8G4, 1185.

TABLE OF CASES CITED.

IxKxix

[references are to pages.]

Dwyer v. Rich (Ir. R. 6 C. L. 144),

430.
Dyer v. Bowley (2 Ring. 94), 545.
Dyer t. Robinson (110 Fed. Rep.

99), 831.
Dyett V. Pendleton (8 Cow. N. Y.

727), 700, 1167.
Dymock v. Showell's Brewery Co.

(79 Law T. N. S. 329), 1045.

R

Eadie v. Addison (62 L. J. Ch. 80),

357.
Ealiin v. Brown (1 E. D. Smith,

N. Y. 36), 838.
Earl V. Rogers (2 Wils. 26), 1197.
Earle v. Fiske (103 Mass. 491),

391.
Earle v. Kingsbury (3 Cush. Mass.

206), 539.
Earle v. Washburn (7 Allen Mass.

95), 1233.
Earle's Adm'r v. Hale's Adm'r (31

Ark. 470), 948.
Earll V. Earll (60 Mich. 30), 122.
Earl of Berkley v. Archbishop of

York (6 East, 86), 1202.
Earl of Egremont v. Courtnay (11

Q. B. 702), 1201.
Earl of Falmouth v. Thomas (1

Cr. &M. 89), 1337.
Earl Orchard Co. v. Fava (138 Cal.

76), 171.
Earsfield v. Healy (50 Barb. N. Y.

289), 189.
Eason v. Johnson (69 Miss. 371),

1430.
Eastham v. Anderson (119 Mass.

526), 110, 920.
Eastin v. Hatchitt (15 Ky. L. Rep.

780), 49.
Eastlock V. West Deptford (52

Atl. Rep. 999), 793.
Eastman v. Amoskeag Mfg. Co.

(44 N. H. 143), 794.

Eastman v. Anderson (119 Mass.

226), 505.
Eastman v. Perkins (111 Mass.

30), 243.
Eastman v. Vetter (57 Minn. 164),

219.
East Norway, etc. Ch. v. Froislie

(37 Minn. 447), 306.
East Norway Lake N. E. Lutheran
Ch. V. Froislie (37 Minn. 447),
43.
Eastern Tel. Co. v. Dent (78 L. T.

713), 1052, 1064.
Easton v. Mitchell (21 111. App.

189), 369.
Easton v. Pratt (2 H. & C. 676),

58, 889.
East River Bank v. Kennedy (9

Bos. N. Y. 543), 547.
East Ten. V. & G. Ry. Co. v. Mor-
istown (35 S. W. Rep. 771),
1006.
Eaton V. Hunt (20 Ky. Law Rep.

860), 321.
Eaton V. Jacques (2 Dougl. 455),

1106.
Eaton V. Lyon (3 Ves. 692), 455,

667.
Eaton V. Whittaker (18 Conn.

222), 382.
Eberlein v. Abel (10 111. App. 626),

163, 164, 344.
Eberson v. Continental Inv. Co.

(118 Mo. App. 67), 834, 867.
Eberts v. Fisher (54 Mich. 294),

1037.
Eblin V. Miller Bx'r (78 Ky. 371),

856, 865.
Ebling V. Fuyleln (2 Mo. App.

252), 1068.
Eccleston v. Clipsham (2 Saund.

115), 610.
Ecclesiastical Comm'rs v. Merrall

(38 L. J. Ex. 93), 138.
Ecke V. Fetzer ^65 Wis. 55), 1283,
1285.

xc

TABLE OF CASES CITED.

[references are to pages.]

Eckhart v. Irons (128 111. 568),

743.
Ecldes V. Bocco (11 Colo. 522),

938.
Eckstrom v. Hall (90 Me. 186),

1296.
Eddy V. Coffin (Ud Mass. 463),

563, 1172.
Edelen v. Strong (34 Mo. App.

287), 1435.
Edelmuth v. McGarren (4 Daly,

467), 775.
Edesheimer v. Quackenbush (68

Hun, 427), 609.
Edgar v. Walker (106 Ga. 454),

794.
Edge V. Stafford (1 Tyrwh. 293),

282.
Edge V. Strafford (1 Cromp. &

Jer. 391), 379, 382, 576.
Edgerton v. Page, 1138, 1152, 1176.
Edmisen v. Aslesen (4 Dak. 145),

852.
Edmison v. Lowry (3 S. D. 77),

406, 1142, 1180, 1129.
Edmonds v. Mounsey (15 Ind. App.

399), 84, 641.
Edmonson v. Kite (43 Mo. 176),

258, 573.
Edmundson v. Preville (12 Colo.

App. 73), 164.
Edney v. Benham (7 Q. B. 796),

514.
Edson V. Colburn (29 Vt. 632), 312.
Edwards v. Anderson (82 S. W.

Rep. 059), 1419.
Edwards v. Barrington (85 Law T.

650), 273, 1051.
Edwards v. Candy (14 Hun, N. Y.

576), 1139.
Edwards v. Countess of Warwick

(2 P. Wms. 176), 539.
Edwards v. Derrickson (28 N. J.

Law, 39), 547.
Edwards v. McLean (122 N. Y.

302), 780, 790, 795, 1356.

Edwards v. Milbank (29 L. J. Ch.

45), 58.
Edwards v. Perkins (7 Oreg. 149),

698, 1316.
Edwards v. Railroad Co. (98 N. Y.

245), 789, 790, 848, 860.
Edwards v. RissFer (26 Ohio Cur-

Ct. R. 428), 792.
Edwards v. West (47 L. J. Ch.

463), 990.
Edwards & Bradford Lumb. Co. v.

Rank (57 Neb. 323), 1248.
Effinger v. Henderson (33 Miss.

449), 552.
Effinger v. Lewis (32 Pa. St. 367),

373.
Ege V. Ege (5 Watts, Pa. 134),

1444.
Egery v. Woodard (56 Me. 45),

349.
Eggliston V. Bradford (10 Ohio,

312), 337, 462.
Egler V. Marsden (5 Taunt. 25),

581.
Ehrich v. Winter & Co. (103 N. Y.

Supp. 1023), 280.
Ehrman v. Mayer (57 Md. 612),

541, 551, 970.
Ehrman v. Oates (101 Ala. 604),

1432, 1459.
Eichengreen v. Appel (44 111. App.

19), 231, 307.
Eichenlaub v. Neil (3 Ohio Dec.

365), 634.
Eichuer v. Cohen (48 Misc. Rep.

541), 1012.
Eichorn v. Peterson (16 111. App.

601), 615, 1382, 1391.
Eimermann v. Nathan (116 Wis.

124), 181.
Eisenhart v. Ordean (3 Colo. App.

162), 1136, 1152, 1160, 1176.
Ela V. Banks (37 Wis. 39), 209.
Ela V. Card (2 N. H. 175), 21.
Ela V. French (11 N. H. 356), 1042.
Elder V. Robinson (19 Pa. St. 364),

996.

TABLE OF CASES CITED.

XCl

[BEI'ERENCES ABE TO PAGES.]

Eldred v. Heahey (31 Wis. 546), Elliott v. Royal Exch. Ins. Co. (L.

697.
Eldridge v. Hoefer (45 Oreg. 239),

288, 1265.
Elfe V. Cole (26 Ga. 197), 28.
Elgar V. Watson (Car. & M. 494),

581.
Elgutter V. Drischaus (44 Neb.

378), 176.
Ellis V. Bradbury (75 Cal. 234),

1019.
Ellis V. Culver (2 Har. Del. 129),

90.
Ellis V. Fitzpatrick (64 S. W. Rep.

567), 40.
Ellis V. Jones (70 Miss. 60), 1414,

1417.
Ellis V. Paige (2 Pick. Mass. 71),

156.
Ellis V. Paige (1 Pick. Mass. 43),

195, 208, 210, 216.
Ellis V. Rice (195 Pa. St. 42), 524.
Ellis V. Rowbotbam (1 Q. B. 740),

560.
Ellis V. Rowbotbam (69 Law. J.

Q. B. 379), 526.
Ellis V. Waldron (19 R. I. 369),

817.
Ellis V. Welcb (6 Mass. 246), 700.
Ellis V. Wrigbt (76 L. T. 522),

1232.
EUicott V. Coffin (106 Mass. 365),

571.
Elliot V. Aiken (45 N. H. 30), 1199,

1238.
Elliot V. Gantt (64 Mo. App. 248),

1014.
Elliot V. Rogers (4 Esp. 59), 581.
Elliott V. Dycke (78 Ala. 150),

957.
Elliott V. Hulme (2 M. & Ry. 483),

170.'
Elliott V. Knight (64 111. App. 87),

84.
Elliott V. Pray (10 Allen, Mass.

;;78), 813.
. g

R. 2 Excb. 237), 572.
Elliott V. Smitb (213 Pa. St 413),

920.
Elliott V. Smith (23 Pa. St. 131),

954.
Elliott V. Stone (12 Cush. Mass.

174), 189.
Elliott V. Stone State Bank (4 Ind.

App. 155), 155, 162.
Elliott V. Turner (13 Sim. 477),

667.
Ellsworth V. Hines (5 Wis. 613),

20.
Elphinstone v. Iron & Coal Co.

(11 App. Cas. 332), 1057.
Elsas V. Meyer (10 Ohio Dec. 518),

868, 1293.
Elsey V. Metcalf (1 Denio, 323),

350.
Elston V. Schilling (42 N. Y. 79),

986, 1396.
Elting V. Palen (60 Hun, 306),

1332.
Elwes V. Mawe (3 East, 38), 1256,

1258.
Elworthy v. Sandford (3 H. & C.

330), 367.
Ely V. Scofield 135 Barb. N. Y.

330), 54.
Ely V. Spiero (51 N. Y. Supp. 124),

564.
Emerick v. Tavener (9 Gratt. Va.

220), 140, 938, 949, 964.
Emerson v. Elmerson (35 S. W.

Rep. 425), 227.
Emerson v. Spicer (55 Barb. N. Y.

528), 11.
Emery v. Boston Terminal Co. (59

N. E. Rep. 763), 379.
Emery v. Emery (87 Me. 281),

579.
Emery v. Fugina (68 Wis. 505),

1316, 1318. 1321.
Imery v. Hill (67 N.H. 330), 1052,

1378.

XCll

TABLE OF CASES CITED.

[references are to pages.]

Emmes v. Feeley (132 Mass. 346),

539.
Emmitt v. Lee (50 Ohio St. 662),

390.
Emmons v. Scudder (115 Mass.

367), 192, 235.
Emott V. Cole (Cro. Eliz. 257),

510.
Emrich v. Ireland (55 Miss. 390),

1259.
Engle V. Engle (3 W. Va. 246),

1316.
Engle V. McKinley (5 Cal. 153),

1100.
Engle V. Thorn (3 Duer N. Y. 15),

723.
English V. Duncan (14 Bush. Ky

377), 1454.
English V. Key (39 Ala. 113), 491.

539.
English V. Murtland (214 Pa. St.

325), 1378.
English V. Yates (205 Pa. St. 106),

641, 644.
Ennis v. Fourth Street Building

Ass'n (102 Ind. 520), 905.
Enrich v. Stock Yard Co. (86 Md.

482), 262.
Entelman v. Hapgood (95 Ga. 390),

690.
Enyeart v. Davis (17 Neb. 228),

1203.
Enys V. DonnitHorne (2 Burr.

1197), 346.
Eppes' Ex'rs v. Cole (4 H. & M.

168), 500.
Epi)lnger v. Canepa (20 Fla. 262),

51.
Equator Min. etc. Co. v. Guanella

(18 Colo. 548), 69.
Equelina v. Provident Realty Co.

of N. Y. (84 N. Y. Supp. 1014),

377.
Erickson v. Peterson (47 Minn.

525), 1316. 1329.
Erickson v. Wallace (45 Kan. 430),

252, 254.

Ernst V. Crosby (140 N. Y. 364),

772, 777.
Ernst V. Strauss (99 N. Y. Supp.

597), 1155.
Erwin v. Olmsted (7 Cow. N. Y.

227), 81.
Esshom V. Hotel Co. (7 S. D. 74),

1405.
Esling V. Zantzinger (13 Pa. St.

50), 1103.
Estabrook v. Hughes (8 Neb. 496),

1286.
Estabrook v. Stevenson (47 Neb.

206), 1283.
Estes v. Cook (22 Pick. Mass. 293),

391.
Estes V. Furlong (59 111. 298), 982.
Estep V. Estep (23 Ind. 114), 847.
Esty V. Baker (48 Me. 495), 1073.
Esty V. Baker (50 Me. 325), 209,

228, 686.
Eten V. Luyster (60 N. Y. 252),

1044, 1098, 1201, 1205.
Etheridge v. Osborn (12 Wend.

N. Y. 532), 1167.
Etter v. Edwards (4 Watts, Pa.

65), 434.
Ettlinger v. Degnon-McLean Cons.

Co. (42 Misc. Rep. 215), 573.
Eubank v. May & Thomas Hdw.

Co. (105 Ala. 629), 369, 457.
Evans v. Collins (94 Iowa 432),

1430.
Evans v. Conklin (71 Hun, 536),

321, 328, 342.
Evans v. Consumers' Gas Co. (29

N. E. Rep. 398), 641.
Evans v. Davis (48 L. J. Ch. 223),

740, 767.
Evans v. Elliot (9 Ad. El. 159),

486.
Evans v. Elliott (9 Ad. & El. 342),

31.
Evans v. Enloe (70 Wis. 345), 182,

492.
Evans v. Evans (3 A. & E. 132),

573.

TABLE OP CASES CITED.

XClll

[refekexces are to pages.]

Evans v. Hardy (76 Ind. 527), 51.
Evans v. Lincoln Co. (204 Pa. St.

448), 556.
Evans v. Mathias (7 El. & Bl. 590),

1127.
Evans v. McKanna (89 Iowa, 362),

1195.
Evans v. Morris (6 Mich. 369),

516.
Evans v. Reed (5 Gray, Mass. 308),

233, 234.
Evans v. Warren (122 Mass. 303),

1450.
Evans v. Wyatt (43 L. T. 176),

651.
Eveleth v. Sawyer (96 Me. 227),

207.
Everett v. Saltus (15 Wend. N. Y.

474), 537.
Everett v. Williamson (107 N. Car.

204), 1238.
Everingham v. Braden (58 Iowa,

133), 1325.
Evermann v. Robb (52 Miss. 653),

1434.
Evers v. Shumacker (59 Mo. App.

454), 313, 467.
Evers v. Weil (17 N. Y. Supp. 29),

806.
Ewart V. Street (2 Bailey, S. Car.

157), 900.
Ewes V. Briggs Gas Co. (55 L. T.

831), 400.
Ewing V. Barnard (84 N. Y. Supp.

137), 1207.
Ewing V. Cottman (9 Pa. Super.

Ct. 444), 944, 1142.
Ewing V. Miles (12 Tex. Civ. App.

19), 632, 1385.
Ewing V. O'Malley (82 S. W. Rep.

1087), 179.
Eyck V. Rector, etc. of Protestant

Episcopal Church (141 N. Y.

588), 1026.
Eyre v. Jordan (111 Mo. 424), 836.

Fagan v. Vogt (SO S. W. Rep. 664),

315.
Fairbanks v. Meyers (98 Ind. 92),

327.
Fairbanks v. Metcalf (8 Mass.

230), 350.
Fairmount v. Tilton (122 111. App.

626), 800.
Falk V. Yarn (9 Rich. Eq. S. C.

303), 352.
Falkner v. Beers (2 Doug. Mich.

117), 940, 950.
Fall V. Hazelrigg (45 Ind. 576),

317.
Fall V. Moore (45 Minn. 515), 19.5,

201.
Falley v. Giles (29 Ind. 114), 1371,

1377, 1378.
Fallis V. Gray (115 Mo. App. 253),

858.
Fallon V. Robbins (16 Ir. Ch. R._

422), 374.
Falls V. Carpenter (1 Dev. & Bat.

N. C. 237), 985.
Falls County v. De Lancey (73

Tex. 463), 72.
Fanning v. Stinson (13 Iowa, 42),

520.
Farewell v. Dickenson (6 B. & C.

251), 510.
Farley v. Craig (11 N. J. Law,

262), 541.
Farley v. McKeegan (48 Neb. 237),

148, 258.
Farley v. Rogers (1 A. K. Marsh.

Ky. 245), 943.
Farley v. Thompson (15 Mass. 18),

486, 498.
Farlow v. Stevenson (69 Law J.

Ch. 106), 1029.
Farmer v. Pickens (S3 N. C. 549),

964.
Farmers' Bank v. Cole (5 Har.

Del. 418), 1441.

XCIV

TABLE OF CASES CITED.

[referei^ces are to pages.]

Farmers' Bank v. Mutual Assur.

Society (4 Leigh, Va. 69), 1079.
Farmers' Dep. Nat. Bank v. W.

Pa. Fuel Co. (215 Pa. St. 115),

70.
Farmers' Loan & Trust Co. v. Com-
mercial Bank (11 Wis. 207), 442.
Farmers' L. & Tr. Co. v. Minn. E.

& M. Works (35 Minn. 543),

1256.
Farnum v. Hefner (79 Cal. 575),

1051, 1320.
Faron v. Jones (49 Misc. Rep. 47),

1348.
Farrand v. Thompson (5 Bar. &

Aid. 826), 685.
Farrar v. Cooper (34 Me. 394),

437.
Farrar v. Heinrich (86 Mo. 521),

958.
Farrar v. Stackpole (6 Me. 157),

1254.
Farrar v. Nightingal (2 Esp. 639),

1077.
Farrington v. Forman (26 Atl.

Rep. 532), 1188.
Farrington v. Kimball (126 Mass.

313), 1021, 1093.
Farris v. Houston (74 Ala. 162),

923, 924.
Farrow v. Woley (36 So. Rep. 384),

311.
Farrow's Heirs v. Edmundson (4

B. Mon. Ky. 605), 212, 213.
Farfcon v. Goodale (8 Allen, Mass.

202), 208, 1238.
Farwell v. Easton (63 Mo. 446),

659, 733, 767.
Fash V. Blake (44 III. 302), 342.
Faull<ner v. Adams (126 InS. 459),

351.
Faulkner v. Jones (12 Ala. 105),

974.
Faulkner v. Morse (3 T. R. 371),

953.
Faver v. McRae (56 Miss. 227), 42.

Favrot v, Mettler (21 La. Ann.

220), 860, 877.
Fay V. Holloran (35 Barb. N. Y.

295), 49.
Fay V. Muzzy (13 Gray, Mass. 53),

1331.
Fay V. Richardson (24 Mass. 91),

349.
Faylor v. Brice (7 Ind. App. 551),

32, 638.
Featherstonhaugh v. Bradshaw (1

Wend. N. Y. 134), 576.
Featherstonhaugh v. Lee M. P. Co.

L. R. 1 Eq. 318), 6L
Fechet v. Drake (2 Ariz. 239),

1244.
Fegrelsen v. Sanchez (90 111. App.

105), 345.
Fehlhauser v. City of St. Louis

(178 Mo. 635), 793.
Feilhauer v. St. Louis (178 Mo.

635), 782.
Feinstein v. Jacobs (15 Misc. Rep.

474), 805, 814.
Fejavary v. Broesch (52 Iowa, 88),

1447.
Felch V. Harriman (64 N. H. 472),

1318.
Felch er v. McMillian (103 Mich.

494), 1261.
Fell V. Dentzel (42 Atl. Rep. 439),

629.
Fellows V. Gilhuber (82 Wis. 639),

836.
Felthous V. Bindley (11 C. B. N.

S. 869), 386.
Felton V. Cincinnati (95 Fed. Rep.

336), 783, 874.
Felton V. Millard (81 Cal. 540),

176.
Felton V. Strong (37 111. App. 58),

653.
Fenn v. Grafton (2 Bing. N. C.

617). 282.
Fenn v. Harrison (3 T. R. 68),

108.

T.VBLE OF CASES CITED.

XCV

[references are to pages.]

Fenn v. Smart (12 East, 444), 490.
Fennell v. Guffey (139 Pa. St. 341),

518, 615.
Fennell v. Guffey (155 Pa. St. 38),

1087.
Fen ton v. Clegg (9 Ex. 680), 55.
Fera v. Child (115 Mass. 32), 795.
Ferebee v. Proctor (2 Dev. & B.

N. C. 439), 53.
Feret v. Hill (15 C. B. 307), 480.
Ferguson v. Bartholemew (67 Mo.

212), 958.
Ferguson v. Cornish. (2 Burr.

1032), 374.
Ferguson v. Etter (21 Ark. 160),

955.
Ferguson v. Murphy (117 Cal.

134), 1435.
Ferguson's Case (2 Esp. 590), 851.
Fernwood Masonic Hall Ass'n v.

Jones (102 Pa. St. 307), 1032.
Ferrin v. Kenney (12 Met. Mass.

294), 206.
Few V. Perkins (36 L. J. Ex. 54),

890.
Field V. Harrick (5 111. App. 54),

14.
Field V. Herrick (10 HI. App. 591),

697, 1182.
Field V. Herrick (108 111. 110), 19.
Field V. Mills (33 N. J. Law, 254),

1052.
Field V. Schieffelin (7 Johns. Ch.

N. Y. 150), 15, 16.
Field V. Swan (10 Met. Mass. 112),

31.
Fielden v. Slater (38 L. J. Ch.

379), 740, 769.
Fielden v. Tattersall (7 L. T. 718),

764.
Fielder v. Chiles (73 Ala. 567),

83, 227. ■
Fielder v. Ray (3 M. & P. 659),

581.
Fields V. Brown (188 111. Ill),

329, 772.

Fields V. Law (2 Root, Conn. 320),

10.
Fife V. Irving (1 Rich. Law, S.

Car. 226), 1441.
Fifield V. Farmers' Nat. Bank (148

111. 163), 1248.
Filkins v. Steele (124 Iowa, 742),

1143.
Fillebrown v. Hoar (124 Mass.

580), 1178.
Filley v. Christopher (39 Wash.

22), 1261.
Filliter v. Phippard (11 Q. B. 347),

843.
Filton V. Hamilton City (6 Nev.

196), 329.
Finch V. Brook (1 Bing. N. Y.

259), 536.
Finch V. Miller (5 Com. Bench,

428), 140, 525, 537.
Finch V. Moore (50 Minn. 116),

163.
Finch V. Underwood (45 L. J. Ch.

522), 1387.
Finch's Case (6 Coke, 67b), 48.
Findlay v. Carson (97 Iowa, 537),

1079.
Findlay v. Smith (6 Munf. Va.

134), 717.
Fine Realty Co. v. City of New

York (103 N. Y. Supp. 115), 165.
Finkelmeier v. Bates (92 N. Y.

172), 1275.
Finkelstein v. Herson (55 N. J.

Law, 217), 172.
Finley v. Bristol & Ex. Ry. (17 Ex.

409), 578.
Finney v. Cist (34 Mo. 304), 1391.
Finney v. Harding (136 111. 573),

1425.
Finney v. Louis (39 Mo. 177), 139,

1269.
Finney v. Steele (41 So. Rep. 976),

796.
Finney v. Watkins (13 Mo. 291),

1254, 1301.

XCVl

TABLE OF CASES CITED.

Finney's Trustees v. St. Louis (39

Mo. 177), 229.
Finnigan v. Bielil (30 Misc. Rep.

735), 826.
Fiquet v. Allison (12 Mich. 328),

309.
First National Bank v. Adam (34

111. App. 159), 1136, 1295, 1404.
First National Bank v. Consol.

Elec. Light Co. (97 Ala. 465),

1422.
First Nat. Bank v. Lucas (21 Neb.

280), 1293.
Fischer v. Johnson (106 Iowa,

181), 19L
Fish V. Chapman (2 Ga. 349), 901.
Fishback v. Woodruff (51 Ind.

102), 116.
Fishel V. Kerr (45 N. J. L. 507),

1441.
Fisher v. Barrett (4 Cush. Mass.

381), 296.
Fisher v. Cuthell (5 East, 491),

171.
Fisher v. Deering (60 111. 114),

482.
Fisher v. Fisher (1 Bradf. Sur.

N. Y. 345), 45.
Fisher v. Jansen (30 111. App. 91),

SOO.
Fisher v. Keane (1 Watts, Pa.

278), 351.
Fisher v. Lighthall (4 Mackey,

D. C. 82), 785.
Fisher v. Marsh (6 B. & S. 411),

573.
Fi.sher v. Milliken (8 Pa. St. 121),

1340.
Fisher v. Nergararain (112 Mich.

327), 1381.
Fisher v. Pforzheimer (93 Mich.

650), 285. 1096.
Fisher v. Saffer (1 B. D. Smith,

N. Y. 611), 1244.
Fisher v. Smith (48 111. 184), 635.
Fisher v. Thirkell (27 Mich. 1),

792.

[references are to pages.]

Fisher v. Thirkell (21 Mich. 20),

825.
Fisk V. Brayman (21 R. I. 195),

503), 1115.
Fisk V. Moore (11 Rob. La. 279),

258, 1402.
Fiske V. Ernst (62 N. Y. Supp.

429), 244.
Fiske V. Framingham Mfg. Co. (14

Pick. 491), 303.
Fisks V. Eldredge (12 Gray, Mass.

474), 106.
Fitch V. Gosner (7 Conn. 232),

680.
Fitch V. Gosser (54 Mo. 267), 680.
Fitch V. Sargeant (1 Ohio, 352),

1239.
Fitchburg Cotton Mfg. Co. v. Mel-

ven (15 Mass. 268), 30, 498, 539,

1178, 1182, 1183.
Fitz V. lies (62 L. J. Ch. 258), 741.
Fitzgerald v. Anderson (81 Wis.

341), 1264.
Fitzgerald v. Beebe (7 Ark. 310),

501.
Fitzgerald v. Fowlkes (60 Miss.

270), 1425.
Fitzgerald v. Jones (96 Ky. 296),

1391.
Fitzgerald v. O'Connell (6 Ir. Eq.

R. 455), 1387.
Fitzgerald v. Timoney (34 N. Y.

Supp. 460), 865.
Fitzhugh V. Croghan (25 Ky. 429),

333.
Fitzherbert v. Shaw (1 H. Black,

358), 1287.
Fitzpatrick v. Childs (2 Brewst.

Pa. 3G5), 179, 229.
Flagg V. Geltmacher (98 111. 293),
" 262, 4S3.
Flagler v. Hearst (86 N. Y. Supp.

398), 1302.
Flaherty v. Nieman (125 Iowa,

546), 788.
Flannery v. Hightower (97 Ga.

592), 957.

TABLE OF CASES CITED.

XCVll

[referexces are to pages.]

Flannery v. Simons (93 N. Y.

Supp. 544), 782.
Flarslieim v. Dullaghan (58 111.

App. 626), 466.
Flaviell v. Gaskoin (7 Exch. 273),

1314.
Fleck V. Fieldman (104 N. Y.

Supp. 366), 595.
Fleetwood v. Hull (58 L. J. Q. B.

341), 768.
Fleischman v. Toplitz (134 N. Y.

349), 1348.
Fleming v. Chunn (57 N. C. 422),

49.
Fleming v. Collins (2 Del. Ch.

230), 716.
Fleming v. Fleming Hotel Co. (70

N. J. Eq. 509), 634, 644.
Fleming v. Gooding (10 Bing.

549), 576.
Fleming v. Ting (100 Ga. 449),

1129, 1131, 1132.
Fleming v. Mills (182 111. 464),

947.
Fleming v. Snook (5 Beav. 250),

762.
Fletcher v. Chamberlain (61 N. H.

438), 599.
Fletcher v. McFarlane (12 Mass.

43), 1093.
Fletcher v. McKeon (75 N. Y.

Supp. 817), 33, 1126.
Fletcher v. Nokes (76 L. T. Rep.

107), 628.
Flight V. Barton (3 Myl. & K. 282),

769, 1098.
Flight V. Bentley (7 Sim. 149),

489.
Flint V. Sheldon (13 Mass. 443),

354.
Flommerfeldt v. Englander (61 N.

Y. Supp. 187), 353.
Flood V. Flood (1 Allen, Mass.

217), 235.
Florence v. Robinson (24 L. T.
705), 133.

Flournoy v. Wardlaw (67 Ga. 378),

1319.
Flower v. Darby (1 Term Rep.

159), 155, 172.
Flower v. Pearce (45 La. Ann.

853), 394.
Floyd V. Floyd (4 Rich. S. C. 23),

172.
Floyd V. Herring (64 N. C. 409),

52.
Floyd V. Lyons (66 L. J. Ch. 350),

1009.
Floyd V. Maddox (68 Ind. 124),

1293.
Floyd V. Ministry (7 Rich. Law,

S. C. 181), 964, 965, 966.
Fludier v. Lombe (Cas. Temp.

Hardw. 307), 283.
Flynn v. Hatton (43 How. Pr. N.

Y. 333), 860, 879.
Flynn v. Trask (11 Allen, Mass.

550), 882.
Fogal V. Pirro (23 N. Y. Super. Ct.

100), 349.
Fogarty v. Junction City (50 Kan.

478), 705, 766.
Fogarty v. Sparks (22 Cal. 142),

976.
Fogg V. Price (145 Mass. 513),

985.
Foley V. Addenbrooke (4 Q. B.

197), 609.
Foley V. Constantino (43 Misc.

Rep. 92), 1220.
Foley V. McCarthy (157 Mass.

474) 828.
Foley V. Mutual Life Ins. Co. (138

N. Y. 333), 11.
Foley V. Southwestern Land Co.

(94 Wis. 329), 310.
Foley V. Wyeth (2 Allen, Mass.

135), 224, 440, 686.
Folker v. Richardson (67 N. H.

509), 1222.
Folkingham v. Croft (3 Anstr.
700), 305.

XCVIH

TABLE OF CASES CITED.

[references are to pages.]

Follin V. Coogin (12 Rich. S, C.

Law, 44), 638.
Folsom V. Harr (218 111. 3G9), 985.
Foltz V. Prouse (17 111. 487), 49.
Fonda v. Van Home (15 Wend.

N. Y. 631), 10.
Fonner v. Diplock (2 Bing. 10),

925.
Fontaine v. Schulenberg Lumber

Co. (109 Mo. 55), 1014.
Foot V. Calvin (3 Johns. N. Y.

750), 309, 1316. '
Foote V. Manhattan Ry. Co. (58

Hun, N. Y. 478), 445.
Foquet v. Moore (7 Exch. 870),

1214.
Forbes v. Smiley (56 Me. 174),

193,208.
Forbus V. Watkins (62 S. W. Rep.

36), 1264.
Force & Hembling's Case (4 Coke,

64a), 20.
Ford V. Crewell (9 Houst Del.

179), 1434, 1435, 1436.
Ford V. Com. (11 Ky. Law Rep.

860), 778.
Ford V. Doyle (37 Cal. 346), 976.
Ford V. Gregory's Heirs (49 Ky.

175), 349, 350.
Ford V. Hill (92 Wis. 188), 65.
Ford V. Phillips (22 Rap. Jud. Que.

C. S. 296), 903.
Fordyce v. Hathorn (57 Mo. 120),

528, 553.
Fordyce v. Young (39 Ark. 135),

944.
Forgy V. Harvey (151 Ind. 507),

942.
Forgotson v. Becker (81 N. Y. S.

319), 480.
Forrest v. Durnoll (86 Tex. 647),

1419, 1423. 1440.
Forsalth v. Clark (21 N. H. 409),

Forster v. Eborle (7 Misc. Rep.
490), 1163.

Forsythe v. Pogue (25 Oreg. 481),

219.
Forsythe v. Price (8 Watts, Pa.

282), 687.
Fort V. McGrath (7 111. App. 302),

155.
Fort V. Orndorff (7 Heisk. Tenn.

167), 880.
Fortescue v. Bowler (55 N. J. Bq.

741), 724, 1244.
Forward v. Pittard (1 T. R. 27),

900.
Foss V. Marr (40 Neb. 559), 1326.
Foss V. Stanton (76 Vt. 365), 890.
Foster v. Batt (6 Mass. 63), 906.
Foster v. Fletcher (7 T. B. Mon.

Ky. 534), 1315.
Foster v. Goodwin (82 Ala. 384),

319, 1423.
Foster v. Gorton (5 Pick. Mass.

185), 1329.
Foster v. Juniata Bridge Co., 16

Pa. St. 393), 434.
Foster v. Morris (3 A. K. Marsh.

Ky. 611), 486.
Foster v. Oldham (8 Misc. Rep.

331), 1069.
Foster v. Peyser (63 Mass. 242),

785, 1151.
Foster v. Reid (78 Iowa, 205),

1097, 1098, 1423.
Foster v. Robinson (6 Ohio St.

90), 1314, 1315.
Foster v. Williams (Cowp. 622),

182.
Foucher v. Choppin (17 La. Ann.

322), 1347.
Fougera v. Cohn (43 Hun, N. V.

454), 149, 331.
Fculger v. Arding (71 L. J. K. B.

499), 1029.
Fountain v. Boatmen's Sav. Inst.

(57 Mo. 553), 350.
Fournier v. Cyr (64 Me. 32), 342.
Fowke v. Beck (1 Speers, S. C.
291), 319.

TABLE OF CASES CITED.

XCIX

[rki-fuexces aee to pages.]

Fowle V. Freeman (9 Ves. 351),

982.
Fowler v. Atkinson (6 Minn. 578),

106.
Fowler v. Bell (35 S. W. Rep. 822),

65.
Fowler v. Bott (6 Mass. 63), 882,

1340, 1345, 1346.
Fowler Cycle Works & Fraser (110

111. App. 126), 855.
Fowler v. Hawkins (17 Ind. 211),

1429.
Fowler v. Payne (49 Miss. 32),

1340, 1346, 1350.
Fowler v. Rapley (15 Wall. 336),

1422.
Fowles V. Martin (76 Vt. ISO), 309.
Fox V. Buffalo Park (163 N. Y.

559), 798.
Fox V. City of Cincinnati (104 U.

S. 743), 116.
Fox V. Jackson (8 Barb. N. Y.

355), 690.
Fox V. Longley (1 A. K. Marsh.

Ky. 388), 321.
Fox V. Lynch (64 Atl. Rep. 439),

1304.
Fox V. McKinney (9 Oreg. 493),

1320.
Fox V. Nathans (32 Conn. 348),

160, 348.
Fox V. Swan (Styles, 483), 1054.
Foxworth V. Brown (120 Ala. 59),

1429, 1432.
Francis v. Cockrell (L. R. 5 Q. B.

184), 814.
Francis v. Hayward (52 L. J. Ch.

291), 415.
Francke v. Hewitt (56 App. Div.

497), 248, 249.
Frank v. Brunnemann (8 W. Va.

462), 757.
Frank v. McDonald (86 111. App.

336), 775.
Frank v. Nichols (6 Mo. App. 72),

488.

Frank v. Railroad Co. (122 N. Y.

197), 1069, 1086.
Frank v. Stratford-Handcock (13

Wyom. 37), 991.
Frank v. Taubman (31 111. App.

592), 156.
Frankfort Bank v. Anderson (3 A.

K. Marsh. Ky. 1), 64.
Franklin v. Brown (118 N. Y.

110), 1355.
Franklin v. Merida (35 Cal. 558),

922.
Franklin Land M. & W. Co. v.

Card (84 Me. 528), 1266.
Fraser v. State (112 Ga. 13), 339.
Fratcher v. Smith (104 Mich. 537),

163.
Fratt V. Hunt (103 Cal. 288), 898.
Frazer v. Robinson (42 Miss. 121),

920.
Frazier v. Caruthers (44 111. App.

61), 646.
Frazier v. Spear (2 Bibb. Ky. 385),

90.
Frazier v. Thomas (6 Ala. 169),

1440.
Frederick v. Callahan (40 Iowa,

311), 616.
Frederick v. Daniels (74 Conn.

710), 879.
Fredrikan v. M. L. Ins. Co. (62 N.

Y. 392), 57.1.
Free v. Stuart (39 Neb. 220),

1264.
Freeland v. Hyllested (24 La. Ann.

450), 1424.
Freeland v. Ritz (154 Mass. 257),

264.
Freeman v. Hunnewell (163 Mass.

210), 813, 818, 873.
Freeman v. Lynch (8 Neb. 192),

1249.
Freeman v. Moffitt (119 Mo. 280).

482.
Freeman v. Underwood (66 Me.

229), 298, 1319.

TABLE OF CASES CITED.

[references are to pages.]

Freer v. Stotenbur (34 How. Pr.

N. Y. 440), 680, 710.
Freetly v. Barnhart (51 Pa. St.

281), 1002.
French v. French (3 N. H. 234),

333.
French v. Fuller (23 Pick. Mass.

104), 686, 679.
French v. Gapen (105 U. S. 509),

117.
French v. Morse (2 Gray, Mass.

Ill), 1120.
French v. Mayor (29 Barb. N. Y.

363), 1281.
French v. Reed (6 Binn. Pa. 308),

1042.
Frey v. Drahos (6 Neb. 1), 447.
Frey v. Johnson (22 How. Pr. N.

Y. 316), 710.
Frey v. Zabinski (40 Kulp, Pa.

36), 848, 849.
Friar v. Grey (5 Ex. 597), 376.
Friary Holroyd & Healey's Brew.

Co. V. Singleton (68 Law J. Ch.

622), 998.
Friedhoff v. Smith (13 Neb. 5),

146.
Friedland v. Myers (139 N. Y.

432), 696, 875.
Friedlander v. Ryder (30 Neb.

783), 496, 1244, 1263, 1296.
Friend v. Oil Well Supply Co. (179

Pa. St. 290), 1162.
Friesner v. Symonds (46 N. J. Eq.

521), 10.
Frigeris v. Stillman (17 La. Ann.

23), 456.
Frink v. Pratt (130 111. 327), 1424,

1458.
Frisbie v. McCarty (1 Stew. & P.

56), 348.
Frischberg v. Hurter (173 Mass.

22), 823.
Frissel v. Fickes (27 Mo. 557),

1274.
Fritton v. Foot (2 Bro. C. C. 630),

1374.

Frommer v. Roessler (12 Misc.

Rep. 152), 1182.
Fromtin v. Small (2 Ld. Raym.

1418), 532.
Frontz v. Wood (2 Hill Law, S. C.

367), 950.
Frost V. Akron Iron Co. (37 N. Y.

Supp. 374), 1210, 1218.
Frost V. Deutsch (13 S. W. Rep.

981), 1445.
Frost V. Earnest (4 Whart. Pa.

86), 700.
Frost V. Kellogg (23 Vt. 30o), 311.
Fry V. Day (97 Ind. 348), 471.
Fry V. Jones (2 Rawle, Pa. 12),

308.
Frye v. Hill (14 Wash. St. 83),

1436.
Fryska v. Prybeski (11 Det. Leg.

N. 223), 1222.
Fulkerson v. Lynn (64 Mo. App.

649), 1452.
Fuller V. Brownell (48 Neb. 145),

1264, 1294.
Fuller V. Ferguson (26 Cal. 546),

27.
Fuller V. Rose (110 Mo. App. 344),

415.
Fuller V. Ruby (10 Gray, Mass.

285), 699, 1131.
Fuller V. Sweet (30' Mich. 237),

924.
Fuller V. Wilson (3 Q. B. 58), 102.
Fuller V. Whitlock (99 Ala. 411),

122.
Fuller Co. v. Manhattan Cons. Co.

(88 N. Y. Supp. 1049), 553.
Fullington v. Goodwin (7 Vt. 641),

1259.
Fulton V. Stuart (2 Ohio, 215),

1053, 1096.
Fulwood's Case (4 Coke, 65a), 42.
Funk V. Haldeman (53 Pa. St.

229) 274.
Funk's Lessee v. Kincaid (5 Md.

404), 486, 941.

TABLE OF CASES CITED.

CI

[references ABE TO PAGES.]

Furlong v. Leary (8 Gush. Mass.

409), 678.
Furnival v. Carew (3 Atk. 83),

1372, 1382.
Fusselman v. Worthington (14 111.

135), 212, 947.

G.

Gable v. Brooks (48 Md. 108), 326.
Gable v. Wetherholt (116 111. 313),

958.
Gaffield v. Hapgood (17 Pick.

Mass. 192), 1264.
Gaffney v. Paul (29 Misc. Rep.

642), 1213.
Gage V. Acton (1 Salk. 745), 1228.
Gage V. Bates (40 Cal. 384), 638.
Gage V. Smith (14 Me. 466), 560.
Gaggiano v. Giallorenzi (57 N. Y.

Supp. 2), 1378.
Gaines v. Keeton (68 Miss. 473),

1453.
Gaines v. McAdam (79 111. App.

201), 1207, 1219.
Gaither v. Hascall-Richards (121

N. C. 384), 783.
Gale V. Bates (3 H. & C. 84), 764.
Gale V. Edwards (52 Me. 363), 491.
Gale V. Heckman (10 Misc. Rep.

376), 449.
Gale V. Oil Run Petroleum Co.

(6 W. Va. 200), 665.
Galewski v. Appelbaum (32 Misc.

Rep. 203), 108.
Gallagher v. Connell (23 Neb. 391),

968.
Gallagher v. David Stevenson

Brewing Co. (13 Misc. Rep. 40),

11.
Gallagher v. Shipley (24 Md. 418),

1331, 1333.
Galley v. Kellerman (123 Pa. St.

491), 644.
Galloway, Ex parte (21 Wend. N.

Y. 32), 44, 46.

Gallup V. Albany R. R. Co. (65 N.

Y. 1), 1163.
Galvin v. Reals (187 Mass. 250),

850.
Games v. Stiles (14 Pet U. S. 322),

341, 342.
Gandy v. Dewey (28 Neb. 175),

1434.
Gandy v. Jubber (5 B. & S. 78),

128.
Gannett v. Albee (103 Mass. 372),

734, 757, 1382.
Gano V. Prindle (6 Kan. App. 851),

1044.
Gano V. Vandeveer (34 N. J. Law,

293), 697.
Gans V. Hughes (14 N. Y. Supp.

930), 429.
Gansen v. Moarman (5 Ohio Dec.

287), 42.
Ganson v. Baldwin (93 Mich. 217),

515.
Ganson v. Tifft (71 N. Y. 48), 880,

1048.
Ganter v. Atkinson (35 Wis. 48),

384, 686.
Garber v. Gianella (98 Cal. 527),

392.
Garcewich v. Woods (7? N. Y.

Supp. 154), 644, 1058.
Garden v. Butler (Hay & J. 112),

765.
Gardener v. Webber (17 Pick.

Mass. 407), 343.
Gardiner v. Bair (10 Pa. Super.

Ct. Rep. 74), 1223.
Gardner v. Commissioners (21

Minn. 33), 139.
Gardner v. Hazleton (121 Mass.

494), 191.
Gardner v. Keteltas (3 Hill, 330),

672, 676.
Gardner v. McEwen (19 N. Y.

125), 1427.
Garlinghouse v. Mulvane (40 Kan.

428), 122.

Cll

TABLE OF CASES CITED.

[references ABE TO PAGES.]

Garner v. Byard (23 Ga. 289),

1190.
Garner v. Cutting (32 Iowa, 547),

1409.
Garner v. Hannah (6 Duer, N. Y.

262), 667.
Garnett v. Albree (103 Mass. 372),

768.
Garnhart v. Finney (40 Mo. 449),

1391.
Garr v. Haskett (86 Ind. 373), 18.
Garranette v. White (92 Mo. 237),

1096.
Garrard v. Frankel (30 Beav. 445),

474.
Garred v. Macey (10 Mo. 161),

1273.
Garrett v. Jennings (19 Ky. S.

Rep. 1712), 314.
Garrett v. Lister (1 Ley. 25), 334.
Garrett v. Somerville (98 App.

Div. 206), 823, 834.
Garrett's Appeal (100 Pa. St. 597),

552.
Garroute v. White (92 Mo. 237),

1465.
Garth v. Cotton (3 Atk. 756), 711.
Garths v. Good (50 Mo. App. 149),

1449. ■
Gartlan v. Hickman (56 W. Va.

75), 1247, 1265.
Garton v. Gregory (3 B. & S. 90),

1284.
Gartrell v. Clay (81 Ga. 327), 1448.
Garusch v. Rutledge (79 Md. 272),

351.
Garvey v. Dobyns (8 Mo. 213), 523.
Garvin v. Jennerson (20 Kan. 371),

318, 319.
Gaskill V. Trainer (3 Cal. 334),

638, 653.
Gaskins v. Blake (27 Miss. 675),

956.
Gassnick v. SteCfenson (112 Iowa,

688), 1437.
Gaston v. Tunison (10 N. J. Law

J. 305), 1441.

Gates V. Goodjoe (101 U. S. 612),

1353.
Gates V. Green (4 Paige Ch. N. Y.

355), 1340, 1350.
Gates V. Griffen (4 Paige, N. Y.

355), 1345.
Gates V. Hendrick (54 Hun, 92),

910.
Gates V. Home M. L. Ins. Co. (4

Am. Law Rev. 395), 65.
Gates V. Max (125 N. C. 139), 1112.
Gates V. Steele (48 Ark. 539), 122.
Cause V. Richardson (4 Houst.

Del. 222), 1443.
Gavan v. Norcross (117 Ga. 356),

855, 857, 1349.
Gay V. Davey (47 Ohio St. 396),

1346.
Gay V. Ihm (3 Mo. App. 588), 331.
Gay Mfg. Co. v. Hobbs (128 N. C.

46), 274.
Gayetty v. Bethune (14 Mass. 49),

445.
Gaylord v. Soragen (32 Vt. 110),

776.
Gaynor v. Blowett (82 Wis. 313),

1126.
Gazzolo V. Chambers (73 111. 75),

672.
Gear v. Barnum (37 Conn. 229),

397.
Geddio v. Folliett (16 S. D. 610),

1238.
Gee V. Fleming (110 Mass. 39),

679.
Gee V. Moss (68 Iowa, 318), 478.
Geer v. Traders' Bank (132 Mich.

215), 56.
Gehabee v. Stanly (1 La. Ann. 17),

154.
Geiger v. Braun (6 Daly, N. Y.

506), 384.
Gelston v. Rullman (15 Md. 260),

1400.
General Assur. Co. v. Woraley (15

Reports, 328), 167.

TABLE OF CASES CITED.

cm

[references ABE TO PAGES.]

Genet v. Del. & Hudson Canal Co.

(13 Misc. 409), 452.
Geneva Mineral Springs Co. v.

Coursey (61 N. Y. Supp. 98),

400.
Genin v. Ingersoll (2 W. Va. 558),

965, 966.
Genter v. Morrison (31 Barb. N. Y.

125), 342.
Geode v. Gaines (145 U. S. 141),

932.
George Bauernschmidt Brewing

Co. V. McColgan (89 Md. 135),

1287.
George v. Fisk (32 N. H. 32), 680,

683.
George v. Goldsby (23 Ala. 326),

336.
George v. Mahoney (62 Minn. 370),

538.
George v. Putney (4 Cush. Mass.

351), 927, 1171.
George's Creek Co. v. Detmold (1

Md. Ch. 372), 723.
Georgen v. Schmidt (69 111. App.

538), 1094.
Gerhardt Realty Co. v. Brecht (84

S. W. Rep. 217), 1378.
Gerken v. Smith (11 N. Y. Supp.

685), 1093.
Germain v. Pattison (46 Barb. 9),

1060.
German Bank v. Herron (111

Iowa, 25), 210, 219, 1435.
Germania Fire Ins. Co. v. Myers

(8 N. Y. St. Rep. 349), 1141.
German Sav. & Loan Soc. v.

Weber (16 Wash. St. 95), 1297.
Gerry v. Siebrecht (88 N. Y. 1034),

458, 675.
Gervis v. Peade (Cro. Eliz. 615),

606.
Gerzebeck v. Lord (33 N. J. Law,

240), 861.
Getz V. Phila. & Read. Ry. Co. n05

Pa. St. 547), 705.

Getzandaffer v. Caylor (38 Md.

280), 49.
Ghegan v. Young (23 Pa. St. 18)^

1093, 1094.
Gibbon v. Kirk (1 Q. B. 850), 561,

581.
Gibbons v. Daj'ton (4 Hun, N. Y.

45), 151, 156.
Gibbons v. Dillingham (10 Ark.

9), 491, 1315, 1319.
Gibbons v. Hamilton (33 How. Pr.

N. Y. 83), 533.
Gibbs V. Ross (2 Head, Tenn. 437),

437, 492, 522.
Gibson v. Brockway (8 N. H. 4C5,

471), 438.
Gibson v. Carmthorpe (1 Dowl. &

Ry. 205), 576.
Gibson v. Doey (2 H. & N. 615),

490.
Gibson v. Farley (16 Mass. 280),

29, 51, 52.
Gibson v. Gautier (1 Mackey, D. C.

35),144L
Gibson v. Hanna (12 Mo. 162), 549.
Gibson v. Holland ^L. T. I. C. P.

1),386.
Gibson v. Kirk (2 G. & D. 252),.

577.
Gibson v. Needham (96 Ga. 172),

248, 250.
Gibson v. Oliver (158 Pa. St. 277),

641.
Gibson v. Pearsall (1 E. D. Smith.

N. Y. 90), 775, 776.
Gibson v. Perry (29 Mo. 245), 1340.
Gibson v. Wells (1 B. & P. 290),

720.
Giddens v. Boiling (93 Ala. 92),

1467.
Giddens v. Dodd (3 Drew, 485),

375,376.
Giddings v. Felker (70 Tex. 176),

1096.
Giergen v. Schmidt (69 111. App.

538), 593.

CIV

TABLE OP CASES CITED.

[keferexces are to pages.]

Gifford V. King (54 Iowa, 525)

252, 254.
Gigger v. Nesbitt (122 Mo. 675)

991.
Gilbert v. Greenbaum (56 Iowa

211), 1436.
Gilbert v. Port (28 Ohio St. 276)

978.
Gilbert v. Wiman Tl N. Y. 550)

1013.
Gilchrist v. Rea (9 Paige Ch. N. Y

66), 53.
Giles V. Bourne (6 M. & S. 73)

342.
Giles V. Comstock (4 N. Y. 270)

524, 1183.
Giles V. Ebsworth (10 Md. 333)

920,934.
Giles V. O'Toole (4 Barb. N. Y

261), 695.
Gilhooley v. Washington (4 N. Y

217), 1160, 1166.
Gill V. Johnson (1 Met. Ky. 449)

1116.
Gill V. Middleton (105 Mass. 477)

801, 804, 865.
Gillaspie v. Hagans (90 Cal. 90)

877.
Gillespie v. Hendren (73 S. W

Rep. 361), 578.
Gillespie v. Jones (26 Tex. 343)

958.
Gillespie v. Thomas (15 Wend. N

Y. 464), 1178.
Gillett V. Treganza (6 Wis. 343)

274.
Gilliam v. Mither (33 S. W. Rep

984), 1451.
Gilliam v. Moore (44 N. Car. 95)

926.
Gillick V. Jackson (40 Misc. Rei)

627), 812.
Gillilan v. Norton (29 Super. Ct

Rep. 546), 757.
Gilloon V. Reilly (50 N. J. Law

26), 487.

Gilman v. Milwaukee (31 Wis.

563), 75.
Gilman v. Wells (66 Me. 273), 288.
Gilpin V. Adams (14 Colo. 512),

514.
Gilsey v. Keen (185 N. Y. 588),

1093.
Gimon v. Terrell (38 Ala. 208),

1170.
Ginch V. Causey (57 S. E. Rep.

562), 469.
Ginzburg v. Ecker (28 Mo. App.

25S),1086.
Girardy v. Richardson (1 Esp. 13),

772.
Givens v. Easley (17 Ala. 385),

1423.
Givens v. Mullinax (4 Rich. L. S.

C. 590), 920.
Glascott V. Day (5 Esp. 48), 537.
Glasgow V. Ridgeley (11 Mo. 34),

1414.
Glazebrook v. Woodrow (8 T. R.

366), 601.
Gleason v. Boehm (58 N. J. Law,

475), 804, 811, 816.
Glein v. Rise (6 Watts. Pa. 44),

924.
Glen V. Dungey r4 Ex. 61), 577.
Glidden v. Bennett (43 N. H. 306),

1259.
Gluck V. Elkln (36 Minn. 80, 81),

640, 659.
Goatley v. Paine (2 Camp. 520),

861.
Gocio V. Day (51 Ark. 46), 873,

1244, 1278.
Godard v. South Carolina R. Co.

(2 Rich. Law, S. C. 346), 162.

172.
Goddard v. Hall (55 Me. 579), 579.
Goddard v. King (40 Minn. 164),

571.
Goddard v Railroad Co. (2 Rich.

S. C. 346), 158.
Goddard 's Appeal (1 Walk. Pa.

97), 1098.

TABLE OP CASES CITED.

cv

[EEFEBENCES ABE TO PAGES.]

Godfrey v. Black (39 Kan. 193),

757.
Godfroy v. Disprow (Walk. Ch.

260), 333.
Godfrey v. India Wharf Brewing

Co. (87 App. Div. 123), 880.
Godfrey v. Walker (42 Ga. 562),

199, 227.
Godley v. Haggerty (26 Pa. St.

Ill), 805.
Godwin v. Collins (3 Del. Ch. 189),

1002.
Godwin v. Harris (98 N. W. Rep.

439), 553.
Goebel v. Hough (26 Minn. 252),

563, 702, 863, 1156.
Goedecke v. Baker (28 S. W. Rep.

1039), 874.
Goerges v. Hufsschmidt (44 Mo.

179), 976.
Goldberg v. Wood (60 N. Y. Supp.

427), 261.
Goldersleeve v. Overstolz (90 Mo.

App. 518), 1185.
Golding V. Brennan (183 Mass.

286), 341, 1213.
Goldman v. Corn (97 N. Y. Supp.

926), 1188.
Goldsborough v. Gable (36 111.

App. 363), 139, 255, 466, 947.
Goldsmith v. Schroeder (93 App.

Div. 206), 522, 1219.
Goldsmith v. Wilson (68 Iowa,

685), 1044.
Golob V. Pasinsky (76 N. Y. Supp.

388), 831.
Gomber v. Hacket (6 Wis. 323),

645.
Gomez v. Gomez (147 N. Y. 195),

57, 1374.
Gooch V. Clutterbuck (68 L. J. Q.

B. 808), 1090.
Gooch V. Furman (62 111. App.

340), 423.
Goodall V. Gerke (1 Ohio N. P.
2S4),774.

Goodbehere v. Bevan (3 M. & S.

353), 1051.
Goodenow v. Allen (68 Me. 308),

191.
Goode V. Howells (4 M. & W. 199),

158.
Goode V. Ruehle (23 Mich. 30),

1017.
Goode V. Webb (52 Ala. 452), 348.
Goodfellow V. Noble (25 Mo. 60),

146, 877.
Goodhue v. Barnwell (1 Rice Ch.

S. C. 198), 11.
Goodland v. Blewelt (1 Camp. 477),

531.
Goodman v. Greenberg (103 N. Y.

Supp. 779), 367.
Goodman v. Hannibal & St. Jos.

Ry. Co. (45 Mo. 33), 1267.
Goodman v. Jones (26 Conn. 264),

920.
Goodman v. Malcolm (5 Kan. App.

285), 965.
Goodright v. Davids (Cowp. 804),

647.
Goodrich v. Jones (2 Hill, N. Y.

142), 1259.
Goodrich v. Sanderson (55 N. Y.

Supp. 881), 701.
Goodrich v. Thompson (4 Day,

Conn. 215), 51.
Goodrich v. Walker (1 John. Cas.

N. Y. 250), 349, 350.
Goodsell V. Rutland-Can. R. Co. (75

Vt. 375), 336, 338, 339.
Goodtitle v. Flnucan (12 Doug.

575), 58.
Goodtitle d. Galloway v. Herbert

(4 T. R. 680), 196.
Goodtitle v. Morse (3 T. R. 371).

952.
Goodtitle v. Way (1 T. R. 735),

246.
Goodwin v. Clover (91 Minn. 438),

196.
Goodwin v. Gilbert (9 Mass. olO),
519.

CVl

TABLE OP CASES CITED.

[references are to pages.]

Goodwin v. Holbrook (4 Wend. N.

Y. 377), 601.
Goodwin v. Noble (8 E. & B. 587).

1061.
Goodwin v. Perkins (134 Cal. 564),

198.
Goodwin v. Sliarlvey (80 Pa. St.

149), 1426, 1444.
Goodwine v. Barnett (2 Ind. App.

16), 678.
Goodwriglit v. Cordwent (6 T. R.

219), 647.
Gardeville v. Redon (4 La. Ann.

40), 1068.
Gordon v. Buckley (14 S. & R. Pa.

331), 97.
Gordon v. Cummings (152 Mass.

573), 801, 817, 819.
Gordon v. George (12 Ind. 408),

884.
Gordon v. Gilman (48 Me. 473),

162, 218.
Gordon v. Harper (7 T. R. 9), 113.
Gordon v. Miller (63 N. E. Rep.

774), 1293.
Gordon v. Peltzer (56 Mo. App.

599), 798, 799.
Gordon v. Trevelyan (1 Price, 64),

387.
Fore V. Lloyd (12 M. & W. 463),

257, 524.
Gore V. Stevens (1 Dana, Ky. 201),

1171.
Goring v. Goring (3 Swan, 661),

765.
Gorman v. White (46 N. Y. Supp.

1),810.
Gormley's Appeal (27 Pa. St. 49),

1000.
Gorst V. Timothy (2 Car. & K.

351), 172.
Gosharn v. Stewart (15 W. Va.

C57),91, 560, 561.
Gosling V. Wolf (5 Reports, 12),

1098.
Gossett V. Drydale ^48 Mo. App.

430), 1311.

Gott V. Gandy (2 El. & BI. 845),

138.
Gottsberger v. Rajdway (2 Hilt. N.

Y. 242), 855.
Gould V. Bugby (6 Gray, Mass.

371), 620, 632.
Gould V. Eagle Creek (8 Minn.

427), 1044.
Gould V. Maring (28 Barb. N. Y.

— ),331.
Gould V. Steenberg (4 111. App.

439), 685.
Gould V. Thompson (4 Met. Mass.

224), 198, 200, 317.
Gourlay v. Somerset (19 Ves. 429),

1390.
Gove V. Watson "(61 N. H. 136),

1302.
Governors of Christ's Hospital v.

Hattold (2 M. & G. 712), 507.
Grabenhurst v. Nicodemus (42 Md.

236), 1136.
Grabf elder v. Gazetti (26 S. W.

Rep. 436), 84.
Grace v. Michaud (50 Minn. 139),

219.
Grady v. Ibach (94 Ala. 152), 574.
Grady v. Warrell (105 Mich. 310),

54.
Grady v. Wolsner (46 Ala. 381),

794.
Gragg v. Brown (44 Me. 157),

1445.
Graham v. Alsopp (3 Ex. 186), 546.
Graham v. Anderson (3 Harr. Del.

364), 176, 1175.
Graham v. Houghtaling (30 N. J.

L. 552), 12.
Graham v. James (30 N. Y. Super.

Ct. Rep. 435), 569.
Graham v. Moore (4 S. & R. Pa.

467), 923.
Graham v. Seignious (53 S. C.

132), 1432.
Graham v. Way (38 Vt. 19), 278.
Graham v. Womack (82 Mo. App.

618), 045.

TABLE OF CASES CITED.

cvn

[references are to pages. J

Gramm v. Sterling (8 Wyo. 527),

252, 262.
Grand Rapids, etc. Co. v. South

Grand Rapids Co. (102 Mich.

227), 436.
Grand Trunk, etc. Co. v. Chicago,

etc. Co. (141 Fed. Rep. 785), 265,

457.
Granite Building Corporation v.

Greene (25 R. I. 586), 616, 645,

748.
Grannis v. Clark (8 Cow. N. Y.

36), 701.
Grant v. Chase (17 Mass. 443), 445.
Grant v. Ramsey (7 Ohio St. 157),

388.
Grant v. White (42 Mo. App. 285),

141, 155, 920.
Grant v. Whitwell (9 Iowa, 152),

1421, 1425, 1429.
Graves v. Berdan (26 N. Y. 498),

1158, 1340, 1342, 1343.
Graves v. Graves (6 Gray, Mass.

391), 336. 395.
Graves v. Porter (11 Barb. N. Y.

592), 464, 546, 1080.
Graves v. Walter (101 N. W. Rep.

297), 314.
Graves v. White (87 N. Y. 465),

1227.
Gray v. Bompass (11 C. B. N. S.

520), 577.
Gray v. Bremer (122 Iowa, 110),

1462.
Gray v. Chamberlain (4 C. & P.

260), 522.
Gray v. Goff (8 Mo. App. 329),

1165,1168.
Gray v. Johnson (14 N. H. 414),

88, 559.
Gray v. Kaufman Dairy Ice Cream

Co. (162 N. Y. 388), 1199, 1213.
Gray v. Kehoe (90 Mich. 151),

1261.
Gray v. Murray (2 John. Ch. N. Y.

167), 1042.
h

Gray v. Oyler (2 Bush, Ky. 256),

1244.
Gray v. Robinson (33 Pac. Rep.

712), 312.
Gray v. Rogers (30 Mo. 258), 498.
Gray v. Stanion (1 Mee. & Wei.

695), 192, 198.
Gray v. Stevens (28 Vt. 1), 688.
Gray v. Worst (129 Mo. 122), 1325.
Gray v. Wilson (4 Watts, Pa. 39),

572, 1443.
Grayson v. Buie (26 La. Ann. 637),

914.
Greason v. Keteltas (17 N. Y.

491), 983.
Great Nat. Ry. Co. v. Harrison (12

Com. Bench, 576), 614.
Great Western Ry. Co. v. Smith

(45 L. J. Ch. 235), 630.
Greaves v. Whitmarsh Watson &

Co. (75 L. J. K. B. 633), 1027.
Greber v. Kleckner (2 Pa. St. 289),

686.
Greeley v. Greeley (73 Pac. Rep.

295), 1467.
Greeley v. Winsor (1 S. D. 117),

279, 1405.
Green v. Austin (3 Camp. 260),

1459.
Green v. Bell (3 Mo. App. 291),

563, 882.
Green v. Bridges (4 Sim. 96), 667,

1038.
Green v. Deitrich (114 111. 636),

320.
Green v. Dodge (64 Atl. Rep. 499),

463.
Green v. Eales (2 Q. B. 225), 882,

888.
Green v. Green (2 Redfield Sur.

N. Y. 408), 42.
Green v. Keppe (18 C. B. 149), 105.
Green v. Low (22 Beav. 625), 979.
Green v. Meter (54 N. J. Eq. 270),

410.
Green v. Redding (92 Cal. 548),

862.

CVlll

TABLE OP CASES CITED.

[references ABE TO PAGES.]

Green v. Wilding (59 Iowa, 679),

17, 19.
Green v. Wilson (8 Ky. Law Rep.

825), 948.
Greene v. Cole (2 Wm. Saund.

2590), 380, 720.
Greene v. Hague (10 111. App.

598), 840.
Greene v. Klinger (10 Fed. Rep.

689), 974.
Greene v. Munson (9 Vt. 37), 922.
Greene v. Tyler (39 Pa. St. 368),

552.
Greene v. Williams (45 111. 206),

694.
Greenewald v. Schales (17 Mo.

App. 324), 159.
Greenland v. Waddell (5 N. Y. St.

Rep. 835), 49.
Greenleaf v. Allen (127 Mass.

248), 560, 1093.
Greenough's Appeal (9 Pa. St. 18),

298.
Green's Case (Cro. Eliz. 3), 647,

654.
Green's Trustees v. Robinson

(Wright, Ohio, 436), 349.
Greenup v. Verner (16 111. 26),

322.
Greenwalt v. Horner (6 S. & R.

Pa. 70) 439.
Green way v. Hart (14 C. B. 348),

530, 943.
Greenwood v. Moore (79 Miss.

201), 965, 966, 971.
Greenwood v. Tyber (Cro. Jac.

563), 25.
Greenwood v. Wetterau (84 N. Y.

Supp. 740), 699.
Gregg V. Boyd (23 N. Y. Supp.

918), 1330, 1331.
Gregg V. Coates (23 Beav. 33),

1340.
Gregor v. Cady (82 Me. 131), 864.
Gregory v. Doidge (3 Blng. 474),

923.
Gregory v. Hay (3 Cal. 332), 1462.

Gregory v. Mighell (18 Ves. Jr.

328), 1390.
Gregory v. Rosenkrauz (72 Wis.

220), 435.
Gregory v. Thompson (68 Vt. 410),

760.
Gregory v. Wilson (9 Hare. 683),

663, 667, 1038.
Gregory's Heirs v. Crab's Heirs (2

B. Mon. Ky. 234), 934.
Greider's Appeal (5 Pa. St. 422),

1198, 1238.
Grenier v. Cota (92 Mich. 23), 1385.
Greton v. Smith (33 N. Y. 245),

193.
Grey v. Cuthbertson (2 Chit. 482),

1080,1284.
Gribble v. Toms (71 N. J. Law,

338), 486, 541.
Gridley v. Einbigler (98 App. Div.

160), 1012.
Griffin v. Baust "(50 N. Y. Supp.

905), 395.
Griffin v. Bristol (39 Minn. 456),

327.
Griffin v. Dollins (53 S. B. Rep.

1004), 15.
Griffin v. Knisely (75 111. 411),

250, 578.
Griffin v. Manice (174 N. Y. 305),

822.
Griffin v. Marine Co. (52 111. 130),

1110.
Griffin v. Rochester (96 Ind. 545),

291.
Griffin v. Sheffield (38 Miss. 359),

234, 940.
Griffin v. Tomkins (42 L. T. 359),

660.
Griffith V. Burlingham (18 Wash.

429), 1112.
Griffith V. Brackman (97 1\nin.

3S7),35.
Griffith V. Chichester (7 Exch. 95),

548.
Griffith V. Gillum (31 Mo. App.

33), 1453.

TABLE OF CASES CITED,

cix

[beferexces are to pages. J

Griffith V. Hodges (1 Car. & P.

419), 537.
Griffith V. Parmley (38 Ala. 393),

920.
Griffith V. Tombs (7 C. & P. 810),

1337.
Griffiths V. Puleston (13 M. & W.

358), 1314.
Grifhahn v. Kreizer (62 App. Div.

413), 820.
Grimman v. Legge (8 B. & C. 324),

1199,1239.
Grimwood v. Moss (27 L. T. 268),

651.
Grissler v. Dudley (58 N. Y. 323),

542.
Griswold v. Chandler (5 N . W.

492), 51.
Grizzard v. Roberts (110 Ga. 41),

950.
Groff V. Levan C16 Pa. St. 179),

1328.
Grogan v. Bway. Foundry Co. (87

Me. 321), 794.
Grommes v. St. Paul Trust Co.

(147 111. 634), 147, 1092, 1214.
Grore v. Portal (71 L. J. C!i. 299),

1051.
Gross V. Hartley (66 Miss. 116),

1411, 1467.
Gross V. Herkert (124 Wis. 314),

693.
Grosvenor v. Flint (20 R. I. 31),

571.
Grosvenor v. Green (32 L. T. Rep.

252), 362, 1099.
Grosvenor v. Vv'oodhouse (1 Bing.

38), 923.
Groton Mfg. Co. v. Gardiner (11

R. I. 626), 1440.
Grove v. Hodges (55 Pa. St. 504),

327.
Groves v. Groves (10 Q. B. 486),

187.
Grubb V. Bayard (2 Wall. Jr. U. S.

81), 274.

Grubb V. Grubb (10 B. & C. 816),

182.
Gruhn v. Gudebrod Bros. Co. (21

Misc. Rep. 528), 554.
Grummett v. Gingrass (77 Mich.

379), 665.
Grund v. Van Vleck (69 111. 478),

690.
Grundin v. Carter (99 Mass. 15),

491, 1080, 1095, 1111.
Grundy v. Martin (143 Mass. 279),

213.
Grymes v. Boweren (6 Bing. 437),

1256.
Grymes v. Sanders (93 U. S. 55),

469.
Guay V. Kehoo (70 N. H. 151),

1277.
Gude Co. V. Farley (28 Misc. Rep.

184), 290.
Gudgen v. Besset (6 L. & Bl. 986),

581.
Guest V. Opdyck (31 N. J. Law,

552), 309.
Guffey V. Hukill (34 W. Va. 49),

634.
Gugel V. Isaacs (21 App. Div. 503),

503.
Guinzburg v. Claude (28 Mo. App.

258), 1087.
Gulf, C. & S. F. Ry. Co. v. Smith

(3 Tex. Civ. App. 483), 1320.
Gulf, C. & S. F. Ry. Co. v. Dusen-

berry (86 Tex. 525), 1320.
Gulf, etc. Co. V. Harmonson (Tex.

22 S. W. R. 764), 681.
Gulick V. Conover (15 N. J. Law,

420), 549.
Gulick v. Grover (33 N. J. Law,

463). 101.
Gulliher v. Chicago, etc. Co. (59

Iowa, 516), 361.
Gulliver v. Fowler (64 Conn. 556),

850, 855, 864, 879, 1358.
Gullman v. Sharp (81 Hun, 462),

442.

ex

TABLE OF CASES CITED.

[references are to pages.]

Gun V. McCarthy (13 L. R. Ir.

304), 474.
Gunn V. Sinclair (52 Mo. 327), 164,

1228.
Gunizburg v. Claude (38 Mo. App.

258), 92.
Gunsolus V. Lormer (54 Wis. 630),

1689.
Gurney v. Ford (2 Allen, Mass.

576), 438.
Gushee v. City of New York (42

App. Div. — ), 79.
Guthman v. Vallery (51 Neb. 824),

229.
Gutteridge v. Munyard (7 Car. &

Payne, 129), 885.
Guy V. Downs (12 Neb. 532), 123.
Gwin V. Melmoth (1 Freem. Ch.

505), 441.
Gwynn v. Jones (2 G. & J. Md.

184), 970.

K

Haberdasher's Co. v. Isaac (3 Jur.

N. S. 611), 365.
Haby v. Koenig (2 Posey, Unrep.

Case, 439), 440.
Hack V. Leonard (9 Mod. 91), 663.
Hacket v. Marmet (52 Fed. Rep.

268), 341, 921.
Hadden v. Knickerbocker (70 111.

677), 1429, 1432.
Hadley v. Baxendale (9 Ex. 341),

695.
Hadley v. Berners (97 Mo. App.

314), 616.
Haeussler v. Iloman Paper Box

Co. (49 Mo. App. 631), 1112.
Haflick V. Stober (11 Ohio St.

482), 1264, 1269, 1270.
Hagan v. Buck (44 Vt. 285), 666.
Hagar v. Wirkoff (2 Okl. 580),

922, 964.
Haggerty v. Lee (45 N. J. Eq. 1),

441.

Hague V. Ahrens (53 Fed. Rep.

58), 620, 623, 1055.
Hague V. Powers (25 How, Pr.

N. Y. 17), 537.
Hahham v. Sherman (114 Mass.

19), 1238.
Haig V. Homan (4 Bligh, N. S.

380), 1106.
Haines v. Beach (90 Mich. 563),

191.
Haines v. Burnett (27 Beav. 500),

365, 608.
Haines v. Downey (86 111. App.

373), 471, 475.
Haizlip V. Rosenberg (63 Ark.

430), 839.
Halben v. Runder (1 C. M. & R.

264), 1243, 1295.
Haldane v. Johnson (8 Ex. 689),

528.
Hall V. Ball (3 Man. & G. 242),

367.
Hall V. Benner (1 Pen. & W. Pa.

403), 351.
Hall V. Boston (16 Misc. Rep.

528), 855.
Hall V. Burgess (5 B. & C. 333),

1175, 1199.
Hall V. Center (40 Cal. 63), 982,

996.
Hall V. Dewey (10 Vt. 593), 212.
Hall V. Gerken (96 App. Div. 632),

1190.
Hall V. Gould (13 N. Y. 127), 629,

1182.
Hall V. Hoagland (38 N. J. Law,

450), 1071.
Hall V. Horton (79 Iowa, 352),

456, 695.
Hall V. Irvin (78 App. Div. 107),

53, 420, 1156.
Hall V. Jacobs (7 Bush, Ky. 595),

258.
Hall V. Myers (43 Md. 581), 130,

139, 158.
Hall V. Paulson Furniture Co. (4

Wash. 644), 934.

TABLE OF CASES CITED.

CXI

[rei-eeexces are to pages.]

Hall V. Phillips (164' Pa. St. 494),

463.
Hall V. Ryder (152 Mass. 528),

481.
Hall V. Smith (14 Ves. 426), 394.
Hall V. Wallace (88 Cal. 434),

197, 199.
Hall V. Westcott (15 R. I. 373).

957.
Hall V. Western Trans. Co. (34

N. Y. 284), 576.
Hall V. Wood (10 N. H. 237), 106.
Halladay v. Underwood (90 111.

App. 130), 97.
Hallenbeck v. Chapman (73 N. J.

Law, 201), 858.
Hallett V. Wylie (3 Johns. N. Y.

44), 244, 251, 599, 883, 892, 1340.
Halligan v. Chicago, etc. (15 111.

558) 685.
Halligan v. Wade (21 111. 470),

1161, 1178, IISO, 1182.
Halloway v. Lacy (23 Tenn. 468),

604.
Halo V. Schick (57 Pa. St. 319),

278.
Halpin v. Townsend (107 N. Y.

683), 810.
Halsey v. Lehigh Valley Co. (45

N. J. L. 26), 680, 682.
Hamby v. Wall (48 Ark. 135), 83.
Hamer v. McCall (121 N. Car.

196), 941, 1446, 1447.
Hamerton v. Stead (3 B. & C.

478), 192, 1201.
Hamilton v. Ames (74 Mich. 298),

1018.
Hamilton v. Clanricard (5 Bro.

P. C. 547), 108.
Hamilton v. Dennison (56 Conn.

359), 440.
Hamilton v. Feary (8 Ind. App.

615), 788.
Hamilton v. Graybill (19 Misc.

Rep. 521), 420. 1146.
Hamilton v. Maas (77 Ala. 283),

1434.

Hamilton v. Pittock (158 Pa. St.

457), 939, 942.
Hamilton v. Wood (70 Ind. 306),

343.
Hamilton v. Wright's Adm'r (38

Mo. 199), 698.
Hamilton's Lessee v. Marsden (6

Binn. Pa. 45), 920. 927.
Hamit v. Lawrence (2 A. K.

Marsh. Ky. 366), 156.
Hammel v. Beardsley (31 Minn.

314), 1094.
Hammell v. Hammell (19 Ohio,

17), 349.
Hammill v. Jelonick (3 Okl. 223),

920.
Hammond v. Barton (93 Wis.

183), 260, 344, 348, 514.
Hammond v. Blue (132 Ala. 337),

934.
Hammond v. Hannin (21 Mich.

374). 101.
Hammond v. Winchester (82 Ala.

470), 99, 252, 384.
Hammond v. Woodman (41 Me.

177), 437, 439.
Hammons v. McClure (85 Tenn.

65), 924.
Hampshire v. Wickens (47 L. J.

Ch. 243), 365, 607.
Hanauer v. Doane (12 Wall. U. S.

342), 777.
Hanbury v. Litchfield (2 N. Y.

629). 497.
Hanchett v. Whitney (1 Vt. 315),

130, 158.
Hancock v. Austin (14 C. B. N. S.

634). 272.
Hancock v. Boggus (11 Ga. 884),

1402.
Hancock v. Caffyn (1 M. & Scott,

521), 257.
Hancock v. Morgan (17 Tex. 582),

122.
Hand v. Hall (L. R. 2 Ex. DIr.

355), 244.
Hand v. Liles (56 Ala. 143), 491.

exn

TABLE OF CASES CITED.

[references are to pages.]

Hand v. Newton (92 N. Y. 88),

72.
Hand v. Osgood (107 Mich. 65),

384.
Hand v. Suravitz (148 Pa. St.

202), 1031.
Handrahan v. O'Regan (45 Iowa,

298), 419.
Handschy v. Sutton (28 Ind. 159),

910.
Handyside v. Powers (145 Mass.

123), 820, 828.
Hanerton v. Stead (3 B. & C. 478),

256.
Hanford v. McNair (9 Wend. N.

Y. 54), 97.
Hankins v. Kimball (57 Ind. 42),

54.
Hankinson v. Blair (15 N. J. Law,

181), 219.
Hanks v. Virtue (5 Adol. & Ell.

367), 1135.
Hanley v. Banks (6 Old. 79), 702,

874.
Hannan v. Towers (3 H. & J. Md.

147), 267.
Hannigan v. Ingersoll (20 Hun,

N. Y. 316), 489.
Hanrahan v. O'Reilly (102 Mass.

201), 1250, 1252.
Hanson v. Johnson (62 Md. 25),

227.
Hanson v. Kirtley (11 Iowa, 565),

110.
Hanson v. Meyer (81 111. 321),

614, 1284.
Hanson v. Cruse (155 Ind. 176),

881.
Hanson v. Hellen (6 Atl. Rep.

837), 466, 555.
Hanson v. Stevenson (1 B. & A.

305), 1061.
Harveck v. Sylvester (13 Wend.

N. Y. 608), 490.
Harburg v. May (153 Pa. St. 210),

1136.

Harcourt v. Lyman (3 Exch. 817),

609.
Hard v. Brown (18 Vt. 87), 59L
Hardaman v. Shumate (19 Tenn.

398), 1425, 1457.
Harden v. Hesketh (28 L. J. Ex.

137), 511.
Hardin v. Bailey (79 Ala. 381),

258.
Harding v. Austin (93 App. Div.

564), 629.
Harding v. Coburn (12 Met. Mass.

333), 1406.
Harding v. Crethorn (1 Esp. 57),

236.
Harding v. Seeley (148 Pa. St.

20), 1364.
Harding v. Wilson (3 D. & R.

506), 417, 442.
Hardy v. Ackerly (15 Barb. N. Y.

148), 920.
Hardy v. Briggs (14 Allen Mass.

473), 512.
Hardy v. Matthews (101 Mo. App.

708), 1461.
Hardy v. Williams (31 N. Car.

177), 109.
Hardy v. Winter (38 Mo. 106),

197.
Hare v. Burgess (4 K. & J. 45),

1370, 1374, 1375.
Hare v. Groves (3 Anstr. 6S7),

1345.
Harger v. Edmonds (4 Barb. N. Y.

256), 562, 868.
Hargous v. Lahens (3 Sandf. N.

Y. 313), 537.
Hargrave v. King (40 N. Car.

430), 1052.
Hargroves v. Hartop (74 K. B.

233), 804.
Harker v. Smith (7 Ga. 461), 53.
Harlan v. Coal Co. (35 Pa. St.

287), 275.
Harlan v. Harlan (15 Pa. St. 507),

685, 1300, 1336.

TABLE OP OASES CITED.

CXlll

[references are to pages.]

Harlan v. Navigation Co. (35 Pa.

St. 287), 783.
Harley v. Deewitt (2 Hill, Eq.

S. C. 367), 15.
Harlow v. Lake Superior Iron Co.

(36 Mich. 105), 453.
Harman v. Ainslie (73 Law J. K.

B. 539), 611.
Harnan v. Allen (11 Ga. 45), 1100.
Harman v. Cargill (73 S. W. Rep.

1101), 1317.
Harman v. Judge (6 La. Ann.

768), 1439.
Harmon v. Payton (68 Kan. 67),

316, 1465.
Harmony v. Rauch (62 111. App.

97), 563, 877.
Harmony Lodge v. White (30 Ohio

St. 569), 1093, 1094.
Harms v. McCormick (132 111.

104), 84, 85.
Harner v. Leeds (25 N. J. Law,

106), 373.
Harnett v. Maitland (16 Mee. &

Wei. 256), 222, 720.
Harper v. Gustin (12 N. J. Law,

42), 943.
Harrap v. Green (4 Esp. 198),

173.
Harrel v. Fall (63 Minn. 520),

782.
Harrell v. Fagan (43 Ga. 339),

1446, 1447.
Harrington v. Watson (11 Oreg.

143), 1342.
Harrington v. Wise (Cro. Eliz.

486), 620.
Harris v. Boardman (73 N. Y.

Supp. 963), 839.
Harris v. Boots Cash Chemists

(73 L. J. Ch. 70S), 1090.
Harris v. Carson (7 Leigh, Va.

632), 1311.
Harris v. Cleghorn (121 Ga. 314),

1186.
Harris v. Cohen (50 Mich. 324),

793.

Harris v. Corlies (40 Minn. 106),

847, 902, 1359.
Harris v. Dammann (3 Mackey,

D. C. 90), 1441.
Harris v. Elliot (10 Pet. U. S. 25),

442.
Harris v. Frink (2 Lans. N. Y.

35), 258, 1306.
Harris v. Gillingham (6 N. H. 11),

1298.
Harris v. Goslin (3 Har. Del. 340),

615, 777, 885, 1336.
Harris v. Greenberger (50 App,

Div. 439), 673, 674.
Harris v. Heackman (62 Iowa,

411), 892, 1340, 1342.
Harris v. Hickman (73 L. J. K. B.

31), 1028.
Harris v. Hiscock (91 N. Y. 340),

1227.
Harris v. Jones (1 Moo. & R. 173),

889, 893.
Harris v. Kelly (13 Atl. Rep. 523),

1282.
Harris v. Mantle (3 T. R. 307),

720.
Harris v. McDonald (79 111. App.

638), 775.
Harris v. Morrice (10 M. & W.

260), 110.
Harris v. Oil City (57 Ohio St.

118), 622.
Harrison v. Barnby (5 T. R. 246),

87.
Harrison v. Barry (7 Price, 690),

524.
Harrison v. Barrow In Furness

(63 L. T. 834), 1064.
Harrison v. Blackburn (17 C. B.

N. S. 678), 355, 683.
Harrison v. Jackson (7 T. R. 207),

97.
Harrison v. Jordan (194 Mass.

496), 1187.
Harrison v. Marshall (4 Bibb. Ky.

524), 950.

CXIV

TABLE OF CASES CITED.

[references are to pages.]

Harrison v. Middleton (11 Gratt.

Va. 527), 162, 191.
Harrison v. Palmer (76 Ala. 157),

246, 247.
Harrison v. Phillips' Academy (12

Mass. 426), 343, 350.
Harrison v. Ricks (71 N. Car. 11),

308.
Harrison v. Taylor (3 A. K.

Marsh. Ky. 168), 600.
Harrison v. Wyse (24 Conn. 1),

30.
narrower v. Heath (19 Barb. N.

Y. 331), 309, 311.
Harry v. Windsor (12 Mee. & W.

68), 848.
Hart V. Cole (156 Mass. 475), 813.
Hart V. Evans "(8 Pa. St. 14), 684.
Hart V. Hart (117 Wis. 639), 1006,

1277.
Hart V. Hart (22 Barb. N. Y. 606),

119.
Hart V. Lindley (50 Mich. 20),

163, 172.
Hart Mfg. Co., In re (17 N. B. R.

459), 1122.
Hart V. Pratt (19 Wash. 560),

1195, 1218.
Hart V. Robinson (21 Cal. 346),

81.
Hart V. Stockton (12 N. J. L. 322),

148.
Hart V. Windsor (12 M. & W. 85),

698, 785.
Harter v. City of San Jose (141

Cal. 659), 78.
Hartford Iron Mfg. Co. v. Cam-
bria Min. Co. (80 Mich. 491),

66, 451.
Harthill v. Cooke's Ex'r (19 Ky.

Law Rep. 1524), 1367.
Hartley v. Meyer (2 Misc. Rep.

56), 33.
Hartman v. McAllister (5 N. Car.

207), 991, 992.
Hartman v. Thompson (104 Md.

339), 1092.

Hartsell v. Myers (57 Misc. 135),

460.
Hartshorne v. Watson (4 Bing.

N. C. 178), 629, 642, 1070.
Hartwell v. Bissell (17 Johns. N,

Y. 128), 291.
Hartz V. Eddy (12 Det. Leg. N.

251), 1214.
Hartzog v. Hubbard (19 N. C.

241), 960.
Harvey v. Grabham (6 Ad. & El.

61), 1337.
Harvey v. Hampton (108 111. App.

501), 1420, 1432, 1456.
Harvey v. Harvey (2 Stra. 114),

1256.
Harvey v. McGrew (44 Tex. 412),

1080.
Harvin v. Blackman (108 La.

426), 927.
Harvin v. Riggs (1 Rich. Eq. S. C.

287), 15.
Hasbrook v. Paddock (1 Barb. N.

Y. 635), 456, 733.
Hasbrouck v. Winkler (48 N. J.

Law, 431), 525.
Haskell v. Putnam (42 Me. 244),

955.
Haskell v. Sutton (53 W. Va. 206).

14.
Haskill V. Sevier (25 Ark. 152),

325.
Haslage v. Krugh (25 Pa. St. 97),

49.
Haslem v. Lockwood (37 Conn.

500), 1331, 1332.
Hasler v. Lemoyne (5 Com.

Bench, N. S.), 175.
Hasting v. Livermore (7 Gray,

Mass. 194), 440.
Hastings v. Bangor House Prop.

(18 Me. 436), 101.
Hastings v. Belknap (1 Denio, N.

Y. 190)., 1084.
Hastings v. Lovejoy (140 Mass.

260), 467, 557.

TABLE OF CASES CITED.

CXV

[referexces are to pages.]

Hastings v. Vaughn (5 Cal. 315),

351.
Hasty V. Wheeler (12 Me. 434),

714.
Hatch V. Hatch (9 Mass. 307),

352, 1237.
Hatch V. Stamper (42 Conn. 28),

1358.
Hatch V. Van Dervoort (54 N. J.

Eq. 511), 285, 578.
Hately v. Myers (96 111. App. 217),

158, 164.
Hatfield v. Fullerton (24 111. 278),

691.
Hatfield v. Lawton (108 App. Div.

113), 131, 1312.
Hatton V. Gray (2 Ch. Cases, 164),

982.
Hausauer v. Dahlman (72 Hun,

607), 1364.
Hauxhurst v. Lobree (37 Cal.

563), 229, 234.
Havelock v. Geddes (10 East,

559), 601.
Haven v. Wakefield (39 111. 509),

286.
Havens v. W. S. Electric Light Co.

(143 N. Y. 632), 1254.
Haverstick v. Sipe (33 Pa. St.

368), 409.
Hawaralty v. Warren (IS N. J.

Eq. 124), 982.
Hawes v. Shaw (100 Mass. 187),

930.
Hawkins v. Coulthurst (5 Best &

S. 342), 1042.
Hawkins v. Giles (45 Hun, N. Y.

318), 1320.
Hawkins v. Gill (6 Ala. 620),

1467.
Hawkins v. Kelley (8 Ves. 308),

539.
Hawkins v. Sherman (3 Car. & P.

459), 1082.
Hay V. Cumberland (25 Barb. N.

Y. 594), 336, 400, 1191.

Haycock v. Johnson (83 N. W.

Rep. 494), 457.
Hayden v. Bradley (6 Gray, Mass.

425), 860.
Hayden v. Collins (81 Pac. Rep.

1120), 189.
Hayden v. Butcher (31 N. J. Eq.

217), 409.
Hayden v. Mining & Dredging Co.

(84 Pac. Rep. 422), 979.
Hayden v. Patterson (51 Pa. St.

261), 84.
Haj^es V. Arrington (68 S. W. Rep.

44), 384.
Hayes v. Goldman (71 Ark. 251),

1194, 1195, 1210, 1236, 1247,1378.
Hayes v. Kyle (8 Allen, Mass.

300), 593.
Hayes v. Lawyer (83 111. 182),

483, 351.
Hayes v. New York Gold Mining

Co. (2 Colo. 273), 615.
Hayes v. O'Brien (149 111. 403),

982, 985.
Hayes v. Shaw (100 Mass. 187),

942.
Hayes v. Sturges (7 Taunt. 217),

55.
Hayes v. Tindall (1 B. & S. 296),

105.
Hayford v. Wentworth (97 Me.

347), 1247.
Hayne v. Gumming (16 C. B. N. S.

421), 332, 635.
Hayner v. Smith (63 111. 430),

1129, 1133, 1142, 1180.
Haynes v. Aldrich (133 N. Y.

287), 139, 145, 1224, 1236.
Haynes v. Sanborn (45 N. H. 429),

1450, 1460.
Haynes v. Seachrest (13 Iowa,

455), 101.
Haynes v. Synnott (160 Pa. St.

180), 1034.
Haynes v. Union Inv. Co. (30 Neb.

766), 634, 638, 1188.

CXVl

TABLE OF CASES CITED,

[REFERENCES ARE TO PAGES.]

Hays V. Garee (4 Stew. & P. Ala.

170), 275.
Hays V. Gerry (104 Iowa, 455),

1432.
Hays V. Moody (2 N. Y. Supp.

385), 109, 847.
Hays V. Schultz (68 N. Y. Supp.

340), 1287.
Hayt V. Parks (39 Conn. 357), 22.
Hayward v. Parke (16 C. B. 295),

607.
Hayward v. Ramge (33 Neb. 836),

729, 1136.
Hayward v. Sedgly (31 Am. Dec.

64), 225, 685.
Haywood v. Fulmar (32 N. E.

Rep. 574), 270.
Haywood v. Miller (3 Hill, N. Y.

90), 302.
Haywood v. O'Brien (52 Iowa,

537), 1116.
Hazeltine v. Ausherman (87 Mo.

410), 1425.
Hazeltine v. Smith (3 Vt. 535),

571.
Hazelwood v. Pennybacker (50 S.

W. Rep. 199), 1283.
Hazlett V. Powell (30 Pa. St. 293),

411, 783, 1145, 1146, 1158, 1160,

1340.
Hazwood V. Fulmer (32 N. B.

Rep. 574), 275.
Head v. Goodwin (2 Gush. Mass.

294), 1427.
Head v. Sutton (31 Kan. 616),

49, 51.
Healy v. Traut (15 Gray, Mass.

312), 770.
Heap V. Barton (12 Com. Bench,

274), 1287.
Heard v. Fairbanks (5 Met. Mass.

Ill), 1329.
Heard v. Russell (59 Ga. 25),

1445.
Hearle v, Greenbank (3 Atk. 695)-

2L

Hearn v. Gray (2 Houst. Del. 135),

368.
Hearne v. Lewis (78 Tex. 276),

10,492.
Heath v. Williams (25 Me. 209),

920.
Heatherly d. Worthington v. Wes-
ton (2 Wils. 232), 86.
Heathman v. Holmes (94 Cal.

291), 123.
Heavillon v. Farmers' Bank (81

Ind. 249), 1317, 1325.
Heavilon v. Heavilon (29 Ind.

509), 1315.
Hebbert v. Thomas (1 C. M. & R.

861), 399.
Hecht V. Dettman (56 Iowa, 679),

1321, 1325, 1326.
Hechtman V. Sharp (3 MacArthur,

D. C. 90), 1436.
Heckart v. McKee (5 Watts. Pa.

385), 920.
Hecklan v. Hauser (71 N. J. Law,

478), 586.
Hedderick v. Smith (103 Ind.

203), 873, 1264, 1287.
Heddleston v. Stoner (128 Iowa,

525), 258.
Hedekin v. Gillespie (33 Ind.

App. 650), 788.
Hedge v. Drew (12 Pick. Mass.

141), 352.
Hedwig V. Jordan (53 Ind. 21),

792.
Heelan v. Hoagland (10 Neb. 511),

336.
Heerdt v. Hahne (91 111. App.

514), 1092.
Heeter v. Eckstein (50 How. Pr.

N. Y. 445), 644, 1057.
Hefflin v. Campbell (5 Tex. Civ.

App. 106), 567.
Heffner v. Wenrich (32 Pa. St.

432), 343.
Heffron v. Treber (110 N. W. Rep.

781), 597.

TABLE OP CASES CITED.

cxvu

[references are to pages.]

Hegan v. Johnson (2 Taunt. 148),

192.
liegeman v. McArthur (1 E. D.

Smith, N. Y. 147), 1178, 1182,

1210.
Heidelbach v. Slader (1 Handy,

Ohio, 456), 519, 561, 573.
Heidenreich v. Raggio (88 111.

App. 521), 775.
Heights Land Co. v. Randell (82

Iowa, 89), 957.
Heilbron v. Last Chance Water

Co. (75 Cal. 117), 684.
Heine v. Morrison (13 Mo. App.

590), 1183.
Heintze v. Bently (34 N. J. Eq.

562), 874.
Heiple v. Reinhart (100 Iowa,

525), 455.
Heisen v. Heisen (145 111. 648),

946.
Heise v. Pennsylvania R. Co. (62

Pa. St. 67), 732.
Heldon v. Wright (6 Ohio Dec.

315), 614, 769.
Hele V. Stewart (19 W. N. C. Pa.

129), 412.
Hellams v. Patton (44 S. C. 454),

133,146.
Heller v. Dailey (63 N. E. Rep.

490), 1093.
Heller v. Royal Ins. Co. (151 Pa.

St. 101), 1155.
Hemmenway v. Hemmenway (5

Pick. Mass. 389), 105.
Hemphill v. Flynn (2 Pa. St. 144),

140.
Hendershott v. Calhoun (17 111.

App. 163), 1103.
Henderson v. Carbondale Coal &

Coke Co. (140 U. S. 25), 554,

634.
Henderson v. Cardwell (9 Bax.

Tenn. 389), 1307.
Henderson v. Fox (5 Ind. 489), 18.
Henderson v. Hay (3 Bro. C. C.

632), 607.

Henderson v. Miller (53 Mich.

590), 930, 949.
Henderson v. Simmons (33 Ala.

291), 51.
Henderson v. State (109 Ala. 40),

1412.
Henderson v. Virden Coal Co. (78

111. App. 327), 329.
Henderson's Succession (24 La

Ann. 435), 51.
Hendrick v. Lindsay (93 U. S.

143), 532.
Hendricks v. Huffmeyer (27 S. W.

777), 333.
Hendrickson v. Beeson (21 Neb.

61), 486, 491.
Hendrix v. Dickson (69 Mo. App.

197), 1021.
Hendrix v. Hendrix (65 Ind. 329),

51.
Henley v. Branch Bank of Mobile

(16 Ala. 552), 941.
Henley v. Brockman (124 Ga.

1059), 860.
Hennessey v. Farrell (20 Wis.

42), 487.
Henning v. Savage (100 N. Y.

Supp. 1015), 1183.
Henning v. Warner (109 N. C.

406), 964.
Henry v. Allen (49 Ark. 122),

326.
Henry v. Davis (60 Miss. 212),

1425.
Henry v. Henry (11 Ind. 236),

549.
Henry v. Perry (110 Ga. 630),

284.
Henry v. Tupper (29 Vt. 358),

666.
Henson v. Cooper (3 Scott's N. R.

48), 465.
Henstead's Case (5 Coke, 10b), 20,

88,207.
Hentig v. Pipher (58 Kan. 788),.

944.

CXVlll

TABLE OF CASES CITED.

[eefekences are to pages.]

Henwood v. Cheeseman (3 Serg.

& R. Pa. 500), 559.
Hepburn v. Auld (1 Cranch, U. S.

321), 538.
Herbert v. Gallatin (163 N. Y.

575), 261.
Herlakin's Case (4 Coke, 64), 1256.
Herman v. Roberts (119 N. Y. 37),

441, 442.
Herman v. Winter (105 N. W,

Rep. 457), 990.
Hermitage v. Tompkins (1 Ld.

Rayd. 729), 952.
Herandez v. Aaron (73 Miss. 434),

1445.
Herndon v. Kimball (7 Ga. 432),

335.
Herpolsheimer v. Funke (95 N.

W. Rep. 688), 416, 743, 1141,

1181.
Herrel v. Sizelaiid (81 HI. 447),

187, 191, 284.
Herrick v. Graves (16 Wis. 157),

123.
Herrmann v. Hydeman (74 N. Y.

S. 862), 384.
Herron v. Gill (112 111. 247), 1400.
Hersey v. Chapin (162 Mass. 176),

679, 685, 731.
Hersey v. Giblett (18 Beav. 174),

375, 1376.
Herter v. Mullen (9 App. Div.

593), 145.
Hertzberg v. Witte (22 Tex. Civ.

App. 320), 1297.
Hertzler v. Worman (1 W. N. C.

Pa. 153), 463.
Hess V. Newcomer (7 Md. 325),

895.
Hess V. Weingartner (12 Montg.

Co. Law, Pa. 105), 848.
Hessel v. Johnson (129 Pa. St.

173), 1205.
Hes.'^eltine v. Seavey (10 Me. 212),

1193,1199.
Hessher v. Moss (50 Miss. 208),

172.

Hessler v. Schafer (46 N. Y. 1076),

864.
Hester v. Hester (2 Ired. Eq. N.

C. 330), 54.
Hetrick v. Deutschler (6 Pa. St.

32), 431.
Hevenor, In re (144 N. Y. 271),

629.
Hewitt V. General Electric Co.

(164 111. 420), 1294.
Hewitt V. Watertown St. Engine

Co. (65 111. App. 153), 1252.
Hexter v. Knox (63 N. Y. 561),

857, 875.
Heydon's Case (11 Coke, 5a), 798.
Heyer v. Lee (40 Mich. 353), 451.
Hey ward v. Wilmarth (87 App.

Div. 125), 460, 982.
Hey wood v. Hey wood (42 Mo.

299), 516.
Hicks V. Doty (4 Bush, Ky. 420),

1115.
Hicks V. Downing (1 Lord Raym.

99), 357, 1079.
Hicks V. Martin (25 Mo. App.

359), 1096.
Hickman v. Rayl (55 Ind. 551),

1190.
Higginbotham v. Barton (11 Ad.

& El. 307), 31.
Higgins v. Halligan (46 III. 173),

578.
Higgins V. Kusterer (41 Mich.

318), 435.
Higgins V. Rosse (3 Bligh, 113), 7.
Higgins V. Senior (8 Mee. & Wei.

844), 107.
Higgins V. Turner (61 Mo. 249),

920, 954, 956, 1228.
Higgon V. Mortimer (6 C. & P.

616), 710.
Higher v. Rice (5 Mass. 344),

354.
Highland Co. v. Rhoads (26 Ohio

St. 411), 253.
Hikill y. Myers (36 W. Va. 689),

006.

TABLE OP CASES CITED.

CXIX

[REn;j:i:.\cES abe to pages.]

Hill V. Allen (18S Mass. 25), 991,

995.
Hill V. Atlantic & N. C. R. Co.

(143 N. C. 539), 67.
Hill V. Barclay (18 Ves. 56), 667,

1384.
Hill V. Barry (Hayes & J. 688),

110.
Hill V. Bishop (2 Ala. 320), 867.
Hill V. Boutell (3 N. H. 502), 262,

575.
Hill V. Carr (1 Ch. Cas. 294), 602.
Hill V. Coal Valley Min. Co. (103

111. App. 46), 253, 264, 573.
Hill V. Coates (109 111. App. 266),

1408.
Hill V. De Rochemont (48 N. H.

87), 1331, 1333.
Hill V. Gibbs (5 Hill, N. Y. 56),

87, 90.
Hill V. Hill (43 Pa. St. 528), 299.
Hill V. Moore (40 Me. 515), 572.
Hill V. Rudd (18 Ky. Law Rep.

55), 479.
Hill V. Saunders (4 B. & C. 536),

12, 25, 953.
Hill V. Sewald (53 Pa. St. 271),

1248.
Hill V. Shultz (40 N. J. Bq. 164),

401.
Hill V. Sidie (116 Wis. 602), 319.
Hill V. Spear (50 N. H. 253), 777.
Hill V. Taylor (22 Cal. 191), 710.
Hill V. Taylor (15 Wis. 190), 1274.
Hill V. Wentworth (28 Vt. 429),

1248,1256.
Hill V. Woodman (14 Me. 38), 255.
Hillard v. N. Y. & C. Gas Co. (41

Ohio St. 662), 411, 1158.
Hillard's Estate (8 Luzon Leg.

Reg. Pa. 237), 54.
Hillary v. Gray (6 Gar. & P. 284),

237.
Hilburn v. Fogg (99 Mass. 11),

224.
Hildreth v. Conant (10 Met. Mass.

298), 213, 228, 678.

Hillman v. Hore (Carth. 247),

952.
Hill's Case (Plowden, 16Sa), 446.
Hills V. Rowland (4 De G., M. &

G. 430), 763.
Hilsenbeck v. Guhring (131 N. Y.

674), 810, 816.
Hilsendegen v. Scherck (55 Mich.

468), 522.
Hilton V. Bender (4 Thomp. & C.

N. Y. 270), 956.
Hilton's Appeal (116 Pa. St. 351),

1108.
Himesworth v. Edwards (5 Har.

Del. 376), 382.
Hinchcliffe v. Earl of Kinnoul (5

Bing. N. C. 1), 416.
Hinckley v. Beckwith (13 Wis.

31), 880.
Hinckley v. Guyon (172 Mass.

412), 108.
Hinde v. Vince (2 Campb. 256),

172.
Hindle v. Politt (6 M. & W. 529),

1334.
Hindley v. Emery (L. R. 1 Eq.

52), 725.
Hines v. Duncan (79 Ala. 112),

122.
Hines v. Nelson (Tex. 24 S. W.

Rep. 541), 123.
Hines v. Willcox (12 Pickle, Tenn.

148), 805.
Hingham v. Inhabitants of Spra-

gue (15 Pick. Mass. 102), 195.
Hinks V. Hinks (46 Me. 423), 439.
Hinsaman v. Hinsaman (52 N. C.

510), 326.
Hinter v. Le Conte (6 Cow. N. Y.

728), 528.
Hinton v. Fox (3 Litt. Ky. 380),

368,1336.
Hintze v. Thomas (7 Md. 346),

1090.
Hirsch v. Olmesdahl ,(78 N. Y.

Supp. 832), 564

cxx

TABLE OF CASES CITED.

[references are to pages.]

Hirschfield v. Alsberg (93 N. Y.

Supp. 617), 836.
Hirschfield v. Franks (112 Mich.

448), 1175.
Hirtenstein v. Farrell (69 N. Y.

Supp. 886), 804.
Hitchcock V. Bacon (118 Pa. St.

272), 1163.
Hitchcock V. Hassett (71 Cal.

331), 1400, 1427.
Hite V. Parks (2 Tenn. Ch. 373),

1292.
Hitner v. Ege (23 Pa. St. 305),

848, 849, 874.
Hixon V. Bridges (38 S. W. Rep.

1046), 83.
Hixon V. George (18 Kan. 253),

122.
H. L. Judd & Co. V. Bennett (59

N. Y. Supp. 624), 1060.
Hoadley's Adm'rs v. San Francisco

(124 U. S. 639), 71.
Hoag V. Hoag (35 N. Y. 469), 934.
Hoagland v. Crum (113 111. 365), 6.
Hoaglund v. N. Y., C. & St. L. Ry.

Co. (Ill Ind. 443), 116.
Hobart v. Murray (54 Mo. App.

249), 344.
Hobson V. McArthur (16 Pet. U. S.

182), 568.
Hobson V. Sherwood (19 Beav.

575), 1124.
Hobson V. Tulloch (67 L. J. Ch.

502), 736.
Hoby V. Roebuck (2 Marsh. 433),

382.
Hochenauer v. Hilderbrandt (6

Colo. App. 199), 937, 1172.
Hockenbury v. Snyder (2 Watts.

& S. Pa. 240), 947, 930.
Hodge V. Sloan (107 N. Y. 244),

729.
Hodges V. Fries (34 Fla. 63), 695.
Hodges V. Gates (9 Vt. 178), 322.
Hodges V. Shields (IS B. Mon. Ky.
828), 920, 964.

Hodges v. Waters (124 Ga. 229),

532.
Hodginson v. Crowe (44 L. J. Ch.

680), 365, 608.
Hodgkin v. McVeigh (86 Va. 751),

960.
Hodgkins v. Price (137 Mass. 13),

663.
Hodgkins v. Robson (1 Vent. 276),

1180.
Hodson V. Coppard (7 Jur. N. S.

11), 740, 769.
Hodson V. Gascoigne (5 Barn. &

Aid. 88), 1331.
Hoerdt v. Hanne (91 111. App.

514), 1213. •

Hoeveler v. Fleming (91 Pa. St.

322),- 1142, 1156.
HofE V. Royal Metal Furn. Co. (103

N. Y. Supp. 371), 1368.
Hoffman v. Clark (63 Mich. 175),

201, 202, 220.
Hoffman v. McCallum (93 Ind.

326), 369.
Hogsett V. Ellis (17 Mich. 351),

172, 221, 258, 483, 973.
Hoisington v. Hoisington (2

Aiken, Vt. 235), 336.
Holbrook v. Chamberlain (116

Mass. 155), 1264.
Holbrook v. Young (108 Mass.

83), 563.
Holdane v. Sumner (82 U. S. 600),

1425.
Holden B. & L. Ass'n v. Wann (43

Mo. App. 640), 487, 488.
Holden v. Boring (52 W. Va.

37), 7.
Holden v. Cox (60 Iowa, 449),

1425, 1457.
Holden v. .loy (17 Wall. U. S.

211), 38.
Holder v. Taylor (Brownl. 23),

602.
Holderbaum's Estate (82 Iowa,
69), 51.

TABLE OF CASES CITED.

CXXl

FeEFEBENCES ABE TO PAGES.]

Holderman v. Smith (3 Kan. App

423), 1318.
Holding V. Pigott (7 Bing. 465),

1314.
Holdridge v. Gillespie (2 Johns.

Ch. N. Y. 30), 1104.
Holey V. Hews (3 La. Ann. 704),

1425.
Holford V. Dunnett (7 Mees. &

W. 352), 710, 730.
Holgate V. Kay (1 Car. & K. 341),

1178.
Holladay v. Chicago Arc. L. & P.

Co. (55 111. App. 463), 269.
Holladay v. Rutledge (145 Ala.

656), 1416.
Holland v. Townsend (136 Pa. St.

392), 1136.
Hollenbeck v. Donnell (94 N. Y.

342), 33.
Holler V. Hedges (2 Ir. Ch. N. S.

370), 1124.
Holley V. Young (66 Me. 520),

1364,1365.
Holliday v. Marshall (7 Johns. N.

Y. 211), 1072.
Hollingsworth v. Atkins (46 La.

Ann. 515), 847, 874.
Hollingsworth v. Hill (69 Miss.

73), 1411, 1423.
Hollingsworth v. Stennett (2 Esp

717), 155.
Hollinsworth v. Johnson (48 Mich.

140), 599.
Hollis V. Brown (159 Pa. St. 3G0),

785.
Hollis V. Burns (100 Pa. St. 206),

151, 153, 159.
Hollis V. Carr (2 Mod. 87), 602.
Hollis V. Pool (3 Mete. Mass. 350),

234.
Holloway v. Hill (1902, 2 Ch. 712),

743.
Holly V. Brown (14 Conn. 255),

1131.
Hollywood V. First Parish (192

Mass. 269), 616.

Holman v. Bonner (63 Miss. 131),

964, 965.
Holman v. De Lin River Co. (30

Oreg. 428), 644, 1096, 1195.
Holmes v. De Camp (1 Johns. N.

Y. 33), 547.
Holmes v. Drew (151 Mass. 579),

813.
Holmes v. Field (12 111. 424), 26.
Holmes v. Ginon (44 Mo. 164),

663.
Holmes v. Seeley (17 Wend. N. Y.

71), 12.
Holmes v. Seeley (19 Wend. N. Y.

507), 685.
Holmes v. Tremper (20 Johns. N.

Y. 29), 1252, 1260.
Holmes v. W^illiams (16 Minn.

164), 83.
Holmes v. Wood (88 Mich. 435),

219, 805.
Holsman v. Abrams (2 Duer. N.

Y. 435), 1267, 1271, 1276.
Holsman v. Abrahams (9 N. Y.

Super. Ct. Rep. 435), 569.
Holston V. Noble (83 Cal. 7), 480.
Holt V. Collyer (50 L. J. Ch. 311),

749.
Holt V. Nixon (73 C. C. A. 268),

523,1381.
Holton V. Waller (95 Iowa, 545),

810.
Holtzapfel v. Baker (18 Ves. Jr.

115), 1345.
Holroyd v. Marshall (10 H. L.

Cases, 191), 1428.
Holroyd v. Sheridan (53 App. Div.

14), 798.
Holywood V. First Parish (78 N.

E. Rep. 124), 72.
Home Life Ins. Co. v. Sherman

(46 N. Y. 370), 1171, 1181.
Hong Sing v. Wolf Fein (33 Misc.

Rep. 60S), 1187.
Honnemeyer v. Fisher (27 Ohio

C. C. 8), 802.

cxsn

TABLE OF CASES CITED.

[references are to pages.]

Hood V. Hartshorn (100 Mass.

117), 1271, 1275.
Hood V. McDonald (1 W. N. C.

Pa. 299), 463.
Hooker v. Eagle Bank of Roches-
ter (30 N. Y. 83), 1117.
Hooks V. Bellamy (1 Keb. 530),

952.
Hooks V. Farst (165 Pa. St. 239),

1195, 1224.
Hooper v. Farnsworth (128 Mass.

487), 397, 431.
Hoopes V. Bried (80 Pac. Rep.

327), 1401.
Hoops V. Fitzgerald (204 111. 325),

481.
Hooton V. Holt (139 Mass. 54),

288, 234.
Hoover v. Pennsylvania Oil Co.

(41 Mo. App. 317), 99, 194.
Hopcroft V. Keys (9 Bing. 202),

923.
Hope V. Atkins- (1 Price, 143), 465.
Hoping V. Burnam (2 G. Greene,

Iowa, 39), 391.
Hopkins v. Oilman (22 Wis. 476),

983, 1390.
Hopkins v. Helmore (3 N. & P.

453), 525.
Hopkins v. Holland (84 Md. 84),

652.
Hopkins v. Organ (15 Ind. 188),

1115.
Hopkins v. Ratliff (115 Ind. 213),

873.
Hopper V. Wilson (12 Vt. 695), 29.
Hoppock V. United N. J. R. etc.

Co. (27 N. J. Eq. 286), 116.
Horberg v. May (153 Pa. St. 216),

1176.
Horgan v. Krumweide (25 Hun,

116), 467.
Hornby v. Cramer (12 How. Pr.

N. y. 490), 536.
Horner v. Leeds (25 N. J. Law,

106), 156, 369, 934.

Hornridgo v. Wilson (3 P. & D.

641), 46.
Horry v. Frost (10 Rich. S. C. Eq.

109), 602.
Horsefall v. Mather (Holt. N. P.

7), 138, 730.
Horsefall v. Tester (7 Taunt. 385),

861, 891.
Horsey v. Graham (39 L. J. C. P.

58), 380.
Horton v. Miller (84 Ala. 537),

564,1409.
Horton v. N. Y. Cen. & H. R. R.

Co. (12 Abb. N. C. N. Y. 30),

663.
Horton's Appeal (38 Pa. St. 294),

549.
Horwitz v. Davis (16 Md. 313),

1060, 1061.
Hosher v. Hostermann (58 111.

App. 265), 403.
Hoskins v. Paul (9 N. J. Law,

110), 1084.
Hosli v. Y^okel (57 Mo. App. 622),

146, 155, 384, 397, 1316.
Hosteller v. Eddy (128 Iowa, 401),

124.
Hotley V. Scot (Lofft, 316), 530.
Hottenstein v. Lerch (104 Pa. St.

454), 496.
Houck v. Williams (34 Colo. 138),

950.
Hough V. Birge (11 Vt. 190), 318.
Hough V. Brown (104 Mich. 109),

314.
Hough V. Dumas (4 Dev. & Bat.

L. N. C. 388), 322.
Houghton V. Bauer (70 Iowa, 314),

1423.
Houghton V. Cooper (6 B. Mon.

Ky. 281), 717.
Houghton, Ex parte (12 Fed. Cas.

No. 6,725), 1120.
Houghton V. Koenig (18 C. B. 235),

367.
Houghton V. Moore (141 Mass.

437), 403.

TABLE OF CASES CITED.

CXXIU

[refeeexces are to pages.]

House V. Burr (24 Barb. N. Y.

525), 1378, 1380.
House V. Jackson (24 Oreg. 85),

337, 339.
House V. Metcalf (27 Conn. 631),

792, 799.
Houston V. Farris (71 Ala. 570),

485,964.
Houston V. Keenan (88 S. W. Rep.

197), 775.
Houston V. Spruance (4 Harr. Del.

117), 601.
Houts V. Showalter (10 Ohio St

125), 1326.
Hovendin v. Annesley (3 Sch. &

Lef. 624), 965.
Hovey v. Walker (90 Mich. 527),

497, 563, 873, 899.
How V. Kennet (3 A. & E. 659),

576,582.
How V. Norton (1 Lev. 598), 560
Howard v. Carpenter (11 Md.

259), 5, 94, 349.
Howard v. Carpenter (22 Md. 10),

234, 250.
Howard v. Deens (39 So. Rep.

346), 1450.
Howard v. Doolittle (3 Duer. N.

Y. 464), 729. 847, 1346.
Howard v. Ellis (6 N. Y. Super.

Ct. Rep. 369), 757, 1069.
Howard v. Heinerschit (16 Hun,

177), 44.
Howard v. Henriques (3 Sandf.

N. Y. 725), 404.
Howard v. Jones (123 Ala. 488),

275.
Howard v. Merriam (5 Cush.

Mass. 563), 198, 209, 228.
Howard v. Patrick (38 Mich. 795),

54.
Howard v. Shaw (8 Mee. & Wei.

118), 198.
Howard v. Thomas (12 Ohio St.

201), 459.
Howard v. Tomicich (81 Miss.

703), 261,

Howard v. Wadsworth (3 Me.

471), 437.
Howard v. Wemsley (6 Esp. 53),

173.
Howard Mfg. Co. v. Water-lot Co.

(39 Ga. 574), 604.
Howe V. Clark (23 111. App. 345),

1429.
Howe V. Gregory (2 Ind. App.

477), 944.
Howe V. Larkin (119 Fed. Rep.

1005), 1369.
Howell V. Ashmore (22 N. J. Law,

261), 934.
Howell V. Behler (41 W. Va. 610),

959.
Howell V. Denton (68 S. W. Rep.

1002), 496.
Howell V. Howell (29 N. C. 496),

209, 215, 218, 223.
Howell V. McCoy (3 Rawle, Pa.

256), 450.
Howell V. Ripley (10 Paige, N. Y.

43), 32.
Howell V. Schenck (24 N. J. L.

89), 1306, 1308, 1325.
Howell V. Schneider (24 App. D.

C. 532), 782, 789.
Howell V. Webb (2 Ark. 360),

548.
Howe's Cave Ass'n v. Houck (141

N. Y. 606), 1290.
Howeth V. Anderson (25 Tex.

557), 895.
Howland v. Coffin (9 Pick. Mass.

559), .

Howland v. Forlaw (108 N. C.

567), 1400.
Howland v. White (48 111. App.

236), 486, 634.
Hoy V. Holt (91 Pa. St. 88), 883,

892.
Hoyleman v. Kanawho & O. R.

Co. (23 W. Va. 489), 869.
Hoyle V. Bush (14 Mo. App. 408),

337.

CXXIV

TABLE OP CASES CITED.

[references ABE TO PAGES.]

Hoystradt, In re (45 N. Y. Supp.

841), 59.
Hoyt V. Stoddard (2 Allen, Mass.

442), 1122.
Hubbard v. City of Toledo (21

Ohio St. 379), 116.
Hubbard v. Moss (65 Mo. 647),

1467.
Hubbard v. Russell (25 Barb. N.

Y. 404), 794.
Hubbard v. Shaw (12 Allen, Mass.

120), 1336.
Hubbard v. Shepard (117 Mich.

25), 949.
Hubbard v. Town (33 Vt. 283),

409.
Hubble V. Cole (85 Va. 87), 716,

761, 762.
Hubble V. Cole (88 Va. 236), 702.
Huber v. Ryan (26 Misc. Rep.

428), 879, 1131, 1142, 1356.
Hudleston v. Johnston (McClel. &

Y. 140), 180.
Hudson V. Cripps (1 Ch. 265), 738,

757.
Hudson V. Puller (35 S. W. Rep.

575), 503.
Hudson V. Hudson (1 Ark. 400),

48.
Hudson V. Porter (13 Conn. 59),

760.
Hudson V. Stewart (110 Ga. 337),

1096.
Hudson V. White (17 R. I. 519),

263.
Hudson V. Williams (39 L. T. 632),

891.
Huerstel v. Lorillard (6 Rob. N.

Y. 260), 1113.
Huff V. Latimar (33 S. C. 255), 49.
Huff V. Nickerson (27 Me. 106),

602.
Huff V. Walker (1 Ind. 193), 13, 14.
Huff V. Watkins (15 S. C. 83), 308.
Huffell V. Arniistead (7 Car. & P.
56), 159, 160.

Huffman v. Hill (47 Kan. 613),

124.
Huffman v. Stark (31 Ind. 474),

378.
Hufnagel, In re (12 Fed. Cas. No.

6,837), 1119.
Hugh V. Lillibridge (8 D. R. Pa.

358), 528.
Hughes V. Bucknell (8 Car. & P.

566), 31.
Hughes V. Edisto Cypress Shingle

Co. (51 S. C. 1), 1255.
Hughes V. Ford (15 Colo. 330),

1264.
Hughes V. Hood (50 Mo. 350),

672.
Hughes V. Metropolitan Ry. Co.

(46 L. J. C. P. 583), 890.
Hughes V. Par"ker (8 Mee. & Wei.

244), 387.
Hughes V. Railroad Co. (39 Ohio

St. 476), 803.
Hughes V. Robotham (Cro. Eliz.

302), 1229.
Hughes V. Vanstone (24 Mo. App.

637), 847.
Hughes V. Wait (28 Ark. 153).

922,953.
Hughes V. Windpfennig (10 Ind.

App. 122), 1369, 1374.
Hughes V. Whitaker (4 Heisk.

Tenn. 399), 1400.
Hughes V. Young (5 G. & J. Md.

67), 1006.
Hughes' Appeal (53 Pa. St. 500),

15.
Huglish V. Marvin (128 N. Y.

380), 148.
Huiest V. Marx (67 Mo. App. 418),

1184.
Hukill V. Myers (36 W. Va. 639),

647, 665.
Hulett V. Stockwoll (27 Mo. App.

32S),109C.
Huling V. Roll (43 Mo. App. 234),
1192.

TABLE OF CxVSES CITED.

CXXV

[references are to pages.]

Hull V. Peters (7 Barb. N. Y. 331),

537.
Hull V. Stevenson (13 Abb. Pr.

N. S. 196), 1090.
Hull V. Stogdeel (67 Iowa, 251),

516.
Hull V. Vaughan (6 Price, 157),

575.
Hull V. Wood (14 M. & W. 682),

134, 136.
Hullen V. Runder (1 C. M. & R.

266), 380.
Hulme V. Brown (3 Heisk. Tenn.

679), 565.
Hultz V. Wright (16 S. & R. Pa.

345), 459.
Humble v. Langston (7 Mee. &

Wei. 517), 1085.
Hume V. Kent (1 Ball & B. 554),

647, 658.
Hume V. McClurken (10 Watts.

Pa. 380), 560.
Hume V. Riggs (12 App. D. C.

355), 1410.
Hume Bros. v. Taylor (63 111. 43),

555.
Humes v. Gardner (49 N. Y. Supp.

147), 1170.
Humiston, Keeling & Co. v.

Wheeler (175 111. 514), 1135,

1342.
Humphrey V. Dale (7 E. & B. 266),

107.
Humphrey v. Herrick (5 Neb.

unof. 524), 146.
Humphrey v. Wait (22 U. C. C. P.

5S0),814.
Humphreys v. McKissock (140 U.

S. 304), 442.
Humphreville v. Billinger (62 111.

App. 125), 1176.
Humphries v. Humphries (25 N.

C. 362), 187, 190.
Hungerford v. Wagner (5 App.

Div. 590), 150, 159. 163.
Hunt V. Allgood (10 C. B. N. S.

253), 965, 967.

Hunt V. Bailey (39 Mo. 257), 143,

145, 558.
Hunt V. Bishop (8 Exch. 675),

912.
Hunt V. Comstock (15 Wend. N.

Y. 665), 244, 263, 278, 369.
Hunt V, Cope (Cowp. 242), 1132.
Hunt V. Danforth (12 Fed. Cas.

No. 6,887), 1081, 1283, 1284.
Hunt V. Gardner (39 N. J. L. 530),

1093, 1094.
Hunt V. Potter (47 Mich. 197),

1263,1304.
Hunt V. Renout (9 Exch. 635),

912.
Hunt V. Thompson (2 Allen, Mass.

341), 1115.
Hunter v. Frost (47 Minn. 1), 139,

162, 219.
Hunter v. Hopetown (13 L. T.

130), 1385.
Hunter v. Hunt (1 C. B. 300), 546.
Hunter v. Jones (2 Brewst. Pa.

370), 1331.
Hunter v. Osterhoudt (11 Barb.

N. Y. 33), 552.
Hunter v. Porter (10 Idaho, 72),

783.
Hunter v. Reiley (43 N. J. Law,

480), 563, 564, 1180.
Hunter v. Whitfield (89 111. 229),

1429,1431.
Huntington v. Parkhurst (87

Mich. 38), 146, 180.
Huntley's Case (3 Dyer, 326a), 87.
Hunstock V. Palmer (4 Tex. Civ.

App. 459), 772.
Hurd V. Gushing (7 Pick. Mass.

169), 373.
Hurd V. Whitsett (4 Colo. 77),

150.
Hurlburt v. Post (1 Bosw. N. Y.

28), 1191.
Hurlburt v. Wheeler (40 N. H.

73), 351.
Hurley v. Hanrahan (15 W. R.

990), 134, 511.

CXXVl

TABLE OF CASES CITED.

[references are to pages.]

Hurley v. Sehring (62 Hun, 621),

1195.
Hurliman v. Seckendorf (18 N. Y.

Supp. 756), 471.
Hurst V. Dunlany (84 Va. 701),

941.
Hurtzberg v. Witte (22 Tex. Civ.

App. 320), 1298.
Hussey v. Peebles (53 Ala. 432),

1432, 1458.
Hutcheson v. Bennefleld (42 S. E.

Rep. 422), 56.
Hutcbins v. Martin (Cro. Efliz.

605), 1222.
Hutchinson v. Cummings (156

Mass. 329), 806, 813.
Hutchinson v. Jones (79 Mo. 496),

1213.
Hutchinson v. Ulrich (145 111.

336), 743.
Hutsell V. Deposit Bank (102 Ky.

410), 1411.
Hutton V. Warren (1 M. & W. 466),

1314.
Huxley v. Harrold (62 Mo. 516),

343.
Huyser v. Chase (13 Mich. 98),

195, 219, 275.
Hyatt V. Wood (4 Johns. 150),

686.
Hyde v. Moakes (5 Car. & P. 42),

578.
Hyde v. Skinner (2 P. W. 197),

1363, 1374, 1391.
Hyde v. Warden (47 L. J. Ex.

121), 365, 495, 608, 1071, 1099,

1234.
Hyler v. Humble (101 Ind. 38),

467.
Hyman v. Boston Chair Co. (13

N. Y. Supp. 609), 702.
Hyman v. Jockey Club Wine, etc.

Co. (9 Colo. App. 299), 563,

1129, 1136.
Hynes v. Ecker (34 Mo. App. 650),

644. 1058, 1080.

Ibbs V. Richardson (1 P. & D.

618), 236, 577.
Iggulden V. May (9 Ves. 325), 455,

1374.
Illinois Cent. R. Co. v. Ross (26

Ky. Law R. 1251), 573.
Illinois Cent. R. Co. v. Thompson

ri61 111. 159), 578.
Illinois Starch Co. v. Ottawa Hy-
draulic Co. (125 111. 237), 1053,

1456.
Imbert v. Haloock (23 How. Prac.

N. Y. 456), 678.
Imler v. Baenish (74 Wis. 567),

1113,1238.
Inches v. Dickinson (7 Allen,

Mass. 71), 45, 48.
Independent Brewing Ass'n v.

Powers (80 111. App. 471), 873.
Independent Co. v. Richland Lodge

(70 S. C. 572), 731.
Independent Abattoir Co. v. Tem-

perly (159 Ind. 651), 829.
Indiana I. & I. R. Co. v. Patchette

(59 111. App. 251), 679.
Indianapolis D. & W. Ry. Co. v.

First Nat. Bank (33 N. E. Rep.

679), 522, 582.
Indianapolis Mfg. Co. & Car. Union

V. Cleveland C. C. & I. Ry. Co.

(45 Ind. 281), 1048, 1059.
Indianapolis National Gas Co. v.

Pierce (25 Ind. App. 116), 491,

1111.
Ingalls V. Bissot (Ind. App. 57 N.

E. Rep. 723), 554.
Ingalls V. Hobbs (156 Mass. 348),

785,786.
IngersoU v. Sargent (1 Whart.

Pa. 337), 507.
Inglish V. Breneman (5 Ark. 377),

343.
Ingraham v. Baldwin (9 N. Y.

45), 927, 941.

TABLE OF CASES CITED.

CXXVll

[EEFEEEXCES ABE TO PAGES.]

Inman v. Stamp (1 Stark. N. P.

126), 282, 379.
Insteed v. Stonley (1 Ind. 82),

1391.
Insurance & Law Bldg. v. National

Bank of Missouri (5 Mo. App.

333), 1364.
International Press Ass'n v.

Brooks (30 111. App. 114), 864.
International Trust Co. v. Schu-
mann (158 Mass. 287), 1131.
International Tr. Co. v. Weeks

(203 U. S. 364), 1216.
Investment Co. of Philadelphia v.

Ohio & N. W. Ry. Co. (41 Fed.

Rep. 387), 442.
Ireland v. Bircham (2 Bing. N. C.

90), 1134.
Ireland v. Gauley (95 N. Y. Supp.

521), 1145.
Ireland v. Hyde (69 N. Y. Supp.

889), 556.
Ireland v. United States Mort. &

T. Co. (72 App. Div. 95), 1239.
Irick V. Fulton's Ex'r (3 Gratt.

Va. 193), 363.
Irons V. Reyburn (11 Ark. 378),

100.
Irvin V. Fowler (5 Rob. N. Y.

482), 826.
Irvine v. Wood (51 N. Y. 224),

792.
Irving V. Thomas (18 Me. 418),

481.
Irwin v. Mattox (138 Pa. St. 466),

760, 761.
Irwin V. Nolde (164 Pa. St. 205),

1185.
Isaac V. Minkofsky (29 Misc. Rep.

347), 573.
Isaacs V. Holland (4 Wash. 54),

28.
Isaac's Lessee v. Clarke (2 Gill.

Md. 1), 927.
Isabella Gold Min. Co. v. Glenn

(37 Colo. 165), 1129.

Isheham v. Morrice (Cro. Car.

109), 111, 952.
Ish V. McRae (48 Ark. 413), 319.
Isherwood v. Oldknow (3 M. & S.

382), 58, 530, 641.
Island Coal Co. v. Coombs (152

Ind. 379), 490, 640, 657.
Isler V. Foy (66 N. C. 547), 974.
Isman v. Hanscom (66 Atl. Rep.

329), 1271.
Isom V. Rex Crude Oil Co. (147

Cal. 659), 710, 1076.
Israel v. Israel (30 Md. 120), 83.
Israel v. Simmons (2 Stark, 356),

574.
Ittner v. Robinson (35 Neb. 133),

1023, 1024.
Ive's Case (5 Coke, 11), 1200.
Ives v. Sams (Cro. Eliz. 521),

1222.
Izard V. Bodine (11 N. J. Eq. 403),

83.
Izon v. Gorton (^ Bing. N. C. 501),

576,1338.

J.

Jack V. Mclntyre (12 CI. & F.

151), 400.
Jackman v. Arlington Mills (137

Mass. 277), 792.
Jackson v. Allen (30 Ark. 110),

333, 974.
Jackson v. Allen (3 Cow. N. Y.

220), 620.
Jackson v. Andrews (18 Johns. N.

Y. 434), 712.
Jackson v. Bodle (20 Johns. N.

Y. 198), 352.
Jackson v. Bradt (2 Caines, N. Y.

169), 191.
Jackson v. Brownson (7 Johns.

N. Y. 227), 609, 646, 714.
Jackson v. Bryan (1 Johns. N. Y,

322), 155.
Jackson v. Cairns (20 Johns. N.

Y. 301), 227.

CXXVlll

TABLE OF CASES CITED,

[kefebences ake to pages.]

Jackson v. Corliss (7 Johns. 531),

1065.
Jackson v. Crysler (1 John Cas.

N. Y. 125), 657.
Jackson v. Davis (5 Cow. N. Y.

123), 934, 958, 969, 971, 1096.
Jackson v. Delacroix (2 Wend. N.

Y. 433), 245, 250.
Jackson v. De Walts (7 Johns. N.

Y. 157), 11.
Jackson v. Doll (109 La. Ann.

230), 1376.
Jackson v. Dunbar (68 Miss. 288),

88, 90.
Jackson v. Dunlap (1 Johns. Cas.

N. Y. 114), 352.
Jackson v. Eddy (12 Mo. 209),

1140, 1182.
Jackson v. Farmer (9 Wend. N. Y.

20), 237.
Jackson v. Farrell (6 Pa. Super.

Ct. Rep. 31), 880.
Jackson v. French (3 Wend. N. Y.

337), 182, 220.
Jackson v. Green (4 Johns. N. Y.

186), 1100.
Jackson v. Harper (5 Wend. N. Y.

246), 924.
Jackson v. Harrison (17 Johns.

N. Y. 66), 635, 638.
Jackson v. Hathaway (15 Johns.

N. Y. 447), 447.
Jackson v. Hughes (1 Blackf. Ind.

421), 243, 1044.
Jackson v. Jackson (19 E. L. &

Eg. 546), 984.
Jackson v. King (82 Ala. 432),

955.
Jackson v. Kingsley (17 Johns.

N. Y. 158), 198.
Jackson v. Kisselbrack (10 Johns.

N. Y. 336), 244.
Jackson v. Livingston (7 Cow. N.

Y. 285), 996.
Jackson v. Lodge (36 Cal. 28),
28, 29.

Jackson v. McLeod (12 Johns. N.

Y. 182), 229.
Jackson v. Miller (6 Cow. N. Y.

751), 968.
Jackson v. Miller (7 Cow. N. Y,

747), 198.
Jackson v. Moncrief (5 Wend. N.

Y. 29), 198.
Jackson v. Mowry (30 Ga. 143),

519.
Jackson v. Niven (10 Johns. N.

Y. 335), 236, 320..
Jackson v. O'Rorke (98 N. W.

Rep. 1068), 15, 52, 84.
Jackson v. Pesked (1 M. & S. 234),

679, 683.
Jackson v. Rode (7 Misc. Rep.

680), 252.
Jackson v. Rowland (6 Wend. N.

Y. 666), 288, 934, 956.
Jackson v. Salmon (4 Wend. N.

Y. 327), 139, 155.
Jackson v. Schoonmaker (2 Johns.

N. Y. 230), 342.
Jackson v. Scissam (3 Johns. N.

Y. 499), 969.
Jackson v. Sheldon (22 Me. 569),

349.
Jackson v. Silvernail (15 Johns.

N. Y. 278), 1052.
Jackson v. Sternbergh (1 Johns.

Cas. N. Y. 153), 204.
Jackson v. Stiles (1 Cow. N. Y.

575), 950, 959.
Jackson v. Strieker (1 Johns.

Cases, N. Y. 284), 447.
Jackson v. Tibbitt (23 Wend. N.

Y. 341), 713.
Jackson v. Vosburgh (7 Johns. N.

Y. 186), 250.
Jackson v. Warren (32 111. 31),

232.
Jackson Brewing Co. v. Wagner

117 La. 875), 1378.
.Ta(!ksonville M. P. Ry. & Nav. Co.
V. Hooper (160 U. S. 514), 1036,
1042.

TABLE OF CASES CITED.

CXXIX

fKEKEREXCKS ARE TO PACES.]

Jacob V. Down (69 Law J. Ch.

493), 647, 661.
Jaques v. Millar (47 L. J. Ch.

544), 259.
Jackues v. Short (20 Barb. N. Y.

269), 1080, 1090.
Jaffe V. Harteau (56 N. Y. 398),

782, 847.
Jaffray v. Greenbaum (64 Iowa,

492), 557.
Jalageas v. Winton (119 III. App.

139), 748, 757.
.Jam-es v. Adams (64 Tex. 193),

604.
James v. Jenkins (34 Md. 1), 410.
James v. Dean (11 Ves. 382), 42,

43, 206.

Jayne v. Gregg (42 111. 413), 350.
Jaynes v. Hughes (10 Ex. 430),

343.
Jennings v. Sparkman (39 Mo.

App. 663), 1108.
Jefcoat V. Gunter (73 Miss. 14),

1186.
Jefferies v. Whittick (Gow. 195),

182.
Jeffers v. Bantley (47 Hun, N. Y.

90), 564.
Jeffers v. Easton Eldridge & Co.

(113 Cal. 345), 1077, 1095.
Jeffry v. Underwood (1 Ark. 108),

326.
Jegon V. Vivan (6 Ch. App. 742),

726.

James v. Emery (8 Taunt. 245), { jei^g y. Barrett (52 Miss. 315),

88, 609.

349.

James v. Jenkins (Bull. N. 96), 7. I Jenckes v. Cook (9 R. I. 520), 927.
James v. Plant (4 Ad. & El. 749),

417.
James v. Russell (92 N. Car. 194),

920.
James v. Smith (58 S. W. Rep.

714), 941.
Jamesin v. Thomen (24 Wkly.

Law Bui. Ohio, 314), 1009.
Jamison v. Acker (14 S. W. Rep.

691), 1414.
Janouch v. Pence (93 N. W. Rep.

217), 573.
Jaques v. Gould (4 Cush. Mass

384), 48.
Jacques v. Miller (47 L. J. Ch.

544), 259, 696.
Jarman v. Hale (68 L. J. Q. B.

681), 210.
Jarrell v. Daniel (114 N. Car.

212), 1452.
Jarrett v. State (5 Gill & J. Md.

27), 10.
Jarvis v. Henwood (25 N. J. Eq.

460), 875, 878.
Jarvis v. Seele Milling Co. (173

111. 192), 442.
Jay V. Stein (49 Ala. 514), 960.

Jenkins v. Calvert (3 Cranch, C.

C. 216), 550.
Jenkins v. Church (Cowper, 482),

5.
Jenkins v. Clyde Coal Co. (82

Iowa, 618), 550, 1204.
Jenkins v. Eldridge (13 Fed.

Cases, 7,268), 261.
Jenkins v. Green (27 Beav. 437),

339.
Jenkins v. Jenkins (63 Ind. 415),

638.
Jenkins v. Portman (1 Keen. 435),

1105.
Jenkins d. Yates v. Church (Cowp.

482), 7.
Jenkinson v. Winans (109 Mich.

504), 488.
Jenks v. Partman (1 Keene, 436),

1041.
Jenner v. Clegg (1 M. & Rob. 213),

179.
Jenner v. Morgan (1 P. Wms.

392), 539.
Jennings v. Alexander (1 Hilt. N.

Y. 154), 1095.

exxx

TABLE OF CASES CITED.

[aEB'EEENCES AKK TO PAGES.]

Jennings v. Bond (14 Ind. App.

282), 629, 1137, 1182.
Jennings v. Bragg (Cro. Eliz.

447), 21, 112.
Jennings v. Magor (6 Car. & P.

237), 538.
Jennings v. McComb (112 Pa. St.

518), 194, 327.
Jennings v. Van Schaick (108 N.

Y. 530), 827.
Jersey Co. v. United Co. (46 Fed.

Rep. 264), 1012.
Jesus College v. Gibbs (1 Y. & C.

145), 62.
Jesson V. Gosford (4 Burr. 2144),

679.
Jetter v. Railroad Co. (2 Abb. App.

458), 916.
June V. Baring (62 L. J. Ch. 50),

544.
Jevan v. Harridge (1 Sid. 308),

41.
Jewell V. Jewell (11 Rich. Eq.

S. C. 296), 52.
Jewel's Case (5 Co. 3), 509.
Jewett V. Berry (20 N. H. 36),

638.
Jinks V. Edwards (11 Ex. 775),

671.
Job V. Bannister (2 Kay & J. 374),

1038, 1387.
John V. Jenkins (1 Cr. & M. 227),

251, 1201, 1214.
Johns V. Eichelbarger (109 III.

App. 35), 800.
Johns V. McDaniels (60 Miss.

486), 150.
Johnson v. Albertson (51 Minn.

333), 385.
Johnson v. Aldridge (93 Ala. 77),

565.
Johnson v. Barg (8 Misc. Rep.

307), 1183.
Johnson v. Bryant (61 Ark. 312),

314.
Johnson v. Camp (61 111. 220),

1324, 1325.

Johnson v. Crofoot (53 Barb. N.

Y. 574), 279, 1320, 1405.
Johnson v. Donaldson (17 R. I.

107), 232, 233, 234.
Johnson v. Douglass (73 Mo. 168),

653.
Johnson v. Emanuel (50 Ga. 590),

1400.
Johnson v. Garland (9 Leigh, Va,

149), 1464.
Johnson v. Grantham (104 Ga.

558), 6.
Johnson v. Hartshorne (52 N. Y.

173), 44, 370.
Johnson v. Hoffman (53 Mo. 504),

310.
Johnson v. Johnson (7 Allen,

Mass. 196), 1233.
Johnson v. Johnson (2 Hill's Eq.

S. C. 277), 714.
Johnson v. Johnson (13 R. I. 467),

190.
Johnson v. Jones (87 Ga. 85), 333.
Johnson v. Jones (1 P. & D. 651),

545.
Johnson v. Jordan (2 Met. Mass.

234), 439.
Johnson v. Kindred State Bank

96 N. W. Rep. 588, 589), 453.
Johnson v. Mason (1 Esp. 89),

945.
Johnson v. Mcintosh (8 Wheat.

453), 38.
Johnson v. McMillan (1 Strob. S.

C. 143), 961.
Johnson v. McMillan (69 Mich.

36), 828, 847.
Johnson v. Mosher (82 Iowa, 29),

1250.
Johnson v. Nasworthy (Tex. 16 S.

W. Rep. 758), 442.
Johnson v. Oppenheim (55 N. Y.

280, 12 Abb. Pr. 454), 459, 847,

1157, 1178, 1182, 1348.
Johnson v. Phoenix Life Ins. Co.

(46 Conn. 92), 250, 390.

TABLE OF CASES CITED.

CXXXl

[references are to pages.]

Johnson v. Samuelson (69 Kan.

2G3), 125.
Johnson v. Shelter Island Grove

Camp Meeting Ass'n (122 N. Y.

330), 440.
Johnson v. Sherman (15 Cal. 287),

29, 1045, 1090, 1101.
Johnson v. Stagg (2 Johns. N. Y.

510), 1108.
Johnson v. Tacwean (23 La. Ann.

453), 1409.
Johnson v. Thrower (117 Ga.

1007), 924.
Johnson v. Warwick (17 C. B.

516), 55.
Johnson v. Weed (9 Johns. N. Y.

310), 549.
Johnson v. Wilkinson (139 Mass.

3), 380.
Johnson v. Woodbury (63 Kan.

880), 934.
Johnson's Lessee v. Haines (2

Ohio, 55), 335.
Johnstone v. Huddleston (4 B. &

Cres. 922), 1200.
Jokinsky v. Miller (88 N. Y. Supp.

928), 390.
Joliffe V. Syburn (2 Esp. 677),

171.
Jolly V. Bryan (86 N. Car. 245),

492.
Jones' Appeal (3 Grant Cases, Pa.

250), 51.
Jones V. Barnes (45 Mo. App.

590), 331. 559, 1093.
Jones V. Bridgeman (39 L. T.

500), 537.
Jones V. Carter (15 Mee. & Wei.

718), 631. 651, 1238.
Jones V. Clark (20 Johns. N. Y.

51), 487.
Jones V. Cowper (Willes, 169), 5.
Jones V. Daly (175 N. Y. 529),

644, 1057.
Jones V. Dove (7 Oreg. 467), 943.
Jones V. Durrer (96 Cal. 95), 311

Jones V. Eubanks (86 Ga. 616 )>

1418, 1464.
Jones V. Felker (72 Ark. 405),

849.
.Jones V. Fox (23 Fla. 454, 461),

1401, 1403.
Jones V. Hamm (98 Mo. App. 433),

1047.
Jones V. Hoard (59 Ark. 42), 873.
Jones V. Jones (10 B. & C. 718),

198, 607.
Jones V. Jones (2 Rich. Law. S.

C. 542), 198.
.Jones V. Jones (117 N. Car. 254),

1403.
Jones V. Marcy (49 Iowa, 188),

378.
Jones V. Marks (47 Cal. 242), 390,

392.
Jones V. Marsh (4 T. R. 464), 174,

175.
Jones V. Meehan (20 S. Ct. 1), 37,

39.
Jones V. Mills (10 C. B. N. S. 788),

160, 182, 966.
Jones V. Millsaps (71 Miss. 10),

849.
Jones V. Park (10 Phila. Pa. 165),

439.
.Tones v. Pashby (62 Mich. 614),

451.
Jones v. Phipps (9 B. & S. 761),

171.
Jones V. Reed (15 N. H. 68), 663.
Jones V. Reilly (174 N. Y. 97),

550.
Jones V. Reynolds (4 A. & E. 805),

574, 578.
Jones V. Richardson (10 Met.

Mass. 488), 1427.
.Jones V. Ricketts (7 Md. 108),

549.
Jones V. Rigby (41 Minn. 530),

486.
Jones V. Shay (50 Cal. 508), 187,
189, 19L

cxxXii

TABLE OF CASES CITED.

[refekences are to pages.]

Jones V. Shears ("4 Ad. & El. 832),

356.
.Jones V. Shefflin (45 W. Va. 729),

6.
Jones V. Spartanburg Herald Co.

(44 S. Car. 526), 159.
Jones V. Thomas (8 Blackf. Ind.

428), 288, 1325.
Jones V. Thorne (3 Dow & R. 152),

747.
Jones V. Tipton (2 Dana, Ky. 295),

318.
Jones V. Webster (48 Ala. 109),

590.
Joaes V. Western Pennsylvania

Gas Co. (146 Pa. St. 204), 641,

643, 644.
Jones V. Whitehead (4 Clark, Pa.

330), 717.
Jones V. Willis (63 N. Car. 430),

153.
Jones V. Wingfield (3 M. & S. 846),

510.
Jordan v. Bryan (103 N. Car. 59),

312.
Jordan v. Benwood (42 W. Va.

312), 683.
Jordan v. Davis (108 111. 336),

351.
Jordan v. Helwig (1 Wils. Ind.

447), 794.
Jordan v. Indianapolis Water Co.

(159 Ind. 337), 1093.
Jordan v. Katz (89 Va. 628), 949.
Jordan v. Mead (19 La. Ann. 101),

258.
Jordan v. Sullivan (181 Mass.

348), 833.
Jordan v. Ward (1 H. Bl. 97), 8.
Jordan v. Wilkes (Cro. Jac. 332),

25.
.Toslin V. McLean (99 Mich. 480),

1210.
Joslyn V. Spellman (9 Ohio Dec.

258), 1006.
Josse V. Schultz (13 Fed. Cas.
7,551), 547.

Joules V. Joules (1 Brown, 39),.

86.
Jourdain v. Wilson (4 B. & Aid.

266) 617.
Journeay v. Brackley (1 Hilt. N.

Y. 447), 1080.
Journe's Succession (21 La. Ann.

391), 41.
Joy V. McKay (70 Cal. 445), 206,

234.
Joyce V. Martin (15 R. I. 558),

792, 798, 825.
Joyner v. Weeks (1891, 2 Q. B.

31), 895.
Jojmes V. Statham (3 Ark. 388),

1002.
Jucht V. Behrens (7 N. Y. Supp.

195), 810.
Jud V. Arnold (31 Minn. 340),

378.
Judge V. Curtis (72 Ark. 132),

1456.
Judson V. Gurley (52 Tex. 226),

632.
Juergen v. Allegheny Co. (204 Pa.

St. 501), 1135.
Julicher v. Connelly (102 N. Y.

Supp. 620), 341.
Junction Min. Co. v. Springfield

Junction Coal Co. (122 111. App.

574), 888.
Jungerman v. Bovee (19 Cal. 354),

1287.
Jurdain v. Steere (Cro. Jac. 83),

80.
Juress V. Railroad Co. (61 N. J.

Law. 314), 836.

as' Estate (5 Pa. Co. Ct. Rep.

55), 198.
Kabley v. Worcester Co. (102
Mass. 392), 244, 245, 519, 1364.
Kabus V. Frost (50 N. Y. Super.
I Ct. 74) 860.

TABLE OF CASES CITED.

CXiXlH

[references are to pages.]

Kahler v. Hanson (53 Iowa, 398),

553.
Kahn v. Rosenheim (68 N. Y.

Supp. 856), 526.
Kahn v. Tobias (16 Misc. Rep.

83), 584, 595.
Kain v. Hoxie (2 Hilt. 311, 316),

1069, 1095.
Kaiser v. New Orleans (17 La.

Ann. 178), 697.
Kalis V. Shattuck (69 Cal. 593),

793, 828, 836.
Kalkhoff V. Nelson (60 Minn.

284), 71.
Kamerick v. Castleman (23 Mo.

App. 481), 309, 314.
Kane v. Metropolitan El. Ry. Co.

(15 Daly, 294), 368.
Kane v. Mink (64 Iowa, 84), 204.
Kankakee Coal Co. v. Crane (28

111. App. 371) 1110.
Kankauna Water Power Co. v.

Green Bay, etc. C. Co. (142 U. S.

254), 116.
Kansas City El. Co. v. Union Pac.

Ry. Co. (17 Fed. Rep. 200), 634,

668.
Kansas Indians (5 Wall. U. S.

737), 39.
Karbach v. Fogel (63 Neb. 601),

1185.
Karlson v. Healy (38 App. Div.

486), 822.
Kash V. Huncheon (1 Ind. App.

361), 1288.
Kassel v. Snead (21 Ky. Law Rep.

777), 1464.
Kastner v. Campbell (53 Pac. Rep.

586), 1222, 1239.
Kathman v. Walters (22 La. Ann.

54), 772.
Kauer v. Leahy (15 Pa. Co. Ct.

Rep. 243), 328.
Kaufman v. Clark (7 D. C. 1),

847, 862, 863.
Kaufman v. Underwood (102 S.

W. Rep. 718), 1414.

Kaufmann v. Liggett (209 Pa. St.

97), 1390, 1397.
Kay V. Curd (6 B. Mon. Ky. 100),

322.
Kean v. Kolkschneider (21 Mo.

App. 538), 1190.
Kearings v. Cullen (183 Mass.

298), 835, 847.
Kearney v. Post ("1 Sandf. N. Y.

105), 1101.
Keates v. Cadogan (10 C. B. 591),

477.
Keating v. Keating (Temp. Sugd.

613), 56.
Keating v. Mott (92 App. Div.

156), 835.
Keating v. Mott (86 N. Y. Supp.

1021), 834.
Keating v. Springer (146 111. 481),

410, 1129, 1136, 1176.
Keats V. Hugo (115 Mass. 204),

410.
Keay v. Goodwin (16 Mass. 1),

86, 209, 228, 486, 541.
Keech v. Hall (Doug. Eng. 21),

1325.
Keeler v. Eastman (11 Vt. 293),

708.
Keeler v. Keeler (31 N. J. Eq.

181), 1256.
Keeley Brewing Co. v. Mason (102

111. App. 381), 1074, 1411.
Keeley Brewing Co. v. Mason (116

111. App. 603), 69.
Keith V. Granite Mills (126 Mass.

90), 915.
Keith V. Nat. Teleph. Co. (63 L. J.

Ch. 373), 179.
Kelley v. Kelley (23 Me. 192), 942.
Kelley v. Oil Co. (57 Ohio St.

317), 454.
Kelly V. Austin (46 111. 156), 1297.
Kelly V. Bowerman (113 Mich.

446), 1113.
Kelly V. Duffy (11 Atl. Rep. 244),

905.

•cxxxiv

TABLE OF CASES CITED.

[references ABE TO PAGES.]

Kelly V. Eyster (102 Ala. 325),

262, 939, 1431.
Kelly V. Noxon (64 Hun, 281),

1195, 1207.
Kelly V. O'Connor (106 Pa. St.

321), 917.
Kelly V. Partridge (23 N. Y. Supp.

1027), 1348.
Kelly V. Patterson (43 L. J. C. P.

320), 140.
Kelly V. Rochelle (93 S. W. Rep.

164), 1457.
Kelly V. Rummerfield (117 Wis.

620), 308.
Kelly V. Varnes (64 N. Y. Supp.

1040), 1378.
Kelly V. Waite (12 Met. Mass.

300), 195, 213, 685.
Kellenberger v. Foresman (13 Ind.

475), 847, 1154.
Keller v. Klopfer (3 Colo. 132),

21.
Kellogg V. Kellogg (6 Barb. 116),

227.
Kellogg V. Lavendar (9 Neb. 418),

992.
Kellogg V. Lowe (38 Wash. 293),

1162.
Kellogg V. Rockwell (19 Conn.

446), 30.
Kellogg Newspaper Co. v. Peter-
son (162 111. 158), 1400.
Kelsey v. Tourtelotte (59 Pa. St.

184), 349.
Kelsey v. Ward (16 Abb. Prac.

N. Y. 98), 563. 877.
Kelso V. Kelly (1 Daly, N. Y. 419),

1276.
Kemp V. Derritt (3 Camp. 510),

160, 346.
Kemp V. Sober (1 Sim. N. S. 517),

740.
Kempf's Estate (34 Pittsb. Leg. J.

82), 45.
Kempton v. Walker (9 Vt. 191),

520.

Kenada v. Gardner (3 Barb. N. Y.

589), 317.
Kendal v. Talbot (2 Bibb. Ky.

614), 599.
Kendall B. & S. Co. v. Bain (55

Mo. App. 264), 395, 1409.
Kendall v. Carland (5 Cush. Mass.

74), 91, 1115.
Kendall v. Hill (64 N. H. 553),

1222.
Kendall v. Kendall (7 Me. 171),

342.
Kendall v. Kingsley (120 Mass.

94), 348.
Kendall v. Miller (9 Cal. 591), 10.
Kendall v. Moore (30 Me. 327),

201.
Kendig v. Kendig (3 Pitts. Rep.

Pa. 287), 547.
Keneage v. Elliot (9 Watts, Pa.

258), 504.
Kenin v. Guvernator (48 Atl. Rep.

1023), 216.
Kennard v. Harvey (SO Ind. 37),

1432.
Kennedy v. Baltimore Ins. Co. (3

Har. & J. Md. 367), 65.
Kennedy v. Campbell (3 Brev. S.

C. 553), 974.
Kennedy v. Fay (65 N. Y. Supp.

202), 831, 847.
Kennedy v. Kennedy (66 111. 190),

49L
Kennelly, In re (92 N. Y. Supp.

182), 1126.
Kenney v. Rhinelander (163 N. Y.

576), 816, 822, 834.
Kenny v. Barns (67 Mich. 336),

839, 840.
Kenny v. Collier (79 Ga. 743),

694.
Kensie v. Farrell (17 N. Y. Super.

Ct. 192), 1239.
Kenyon v. Nichols (1 R. I. 411),

445.
Keogh V. Daniell (12 Wis. 163),

1303.

TABLE OF CASES CITED.

CXXXV

[references are to pages.]

Keppler v. Heinrichsdorf (26 Ohio

C. C. 16), 1383, 1387.
Kerley v. Mayer (155 N. Y. 636),

733, 755, 1164.
Kern v. Myll (80 Mich. 525), 792.
Kernochan v. Manhattan Ry. Co.

(161 N. Y. 239), 679.
Kernochan v. Wilkins (3 App. Div.

596), 149.
Kerper v. Booth (10 W. N. C. Pa.

79), 547.
Kerr v. Clark (19 Mo. 132), 146,

1207, 1213.
Kerr v. Dey (14 Pa. St. 112), 996.
Kerr v. Hunt (1 W. N. C. Pa. 115),

463.
Kerr v. Kingsbury (39 Mich. 150),

1271, 1288.
Kerr v. Merchants' Exchange Co.

(3 Edw. Ch. N. Y. 315), 1342.
Kerr v. Merrill (4 Mo. App. 592),

782.
Kerrains v. People (60 N. Y. 221),

300.
Kershaw v. Supplee (1 Rawle, Pa.

131), 885, 1228.
Kerslake v. White (2 Stark. 508),

448, 463.
Kessler v. McConachy (1 Rawle,

Pa. 435), 1183.
Kessler v. Pearson (55 S. E. Rep.

963), 777.
Kessler v. State (119 Ga. 301),

778.
Ketaltas v. Coleman (2 E. D.

Smith, N. Y. 408), 1052.
Ketcham v. Ochs (70 N. Y. Supp.

268), 1210.
Ketcham v. Ochs (77 N. Y. Supp.

1130), 139.
Kew V. Merchant's Exch. Co. (3

Ed. Ch. N. Y. 315), 1158.
Kew V. Trainor (150 111. 150), 620,

1055.
Keyes v. Dearborn (12 N. H. 52),

343, 346.

Keyes v. Slate Co. (34 Vt. 81),

760.
Keyport Brick & Tile Mfg. Co. v.

Lorillard (19 Atl. Rep. 391),

990.
Keys V. Forrest (90 Md. 132), 956.
Kidd V. Dennison (6 Barb. N. Y.

9), 712.
Kidd V. Temple (22 Cal. 255), 29,

33.
Kidder v. West (3 Lev. 167), 399.
Kidney v. Rohrback (3 N. Y. St.

Rep. 574), 544.
Kidwell V. Brummagim (32 Cal.

436), 54.
Kidwell V. Kidwell (84 Ind. 224),

49.
Kidwelly v. Brand (Plow, 71),

641.
Kieley v. Kahn (98 N. Y. Supp.

774), 535.
Kiernan v. Germain (61 Miss.

498), 563, 868, 1238.
Kiernan v. Linnehan (151 Mass.

543), 198.
Kiernan v. Terry (26 Oreg. 494),

481, 922, 937.
Kiersted v. O. & A. R. Co. (69 N.

Y. 343), 106, 560.
Kieth V. Kerr (17 Ind. 284), 326.
Kieth V. Paulk (55 Iowa, 260),

573.
Kile V. Geihner (114 Pa. St. 381),

1250.
Kilgour V. Ashcomb (5 H. & J.

82), 438.
Killoren v. Murtaugh (64 N. H.

51), 927.
Kimball v. Cross (136 Mass. 30),

1364.
Kimball v. Doggett (62 111. App.

528), 879, 1302.
Kimball v. Lockwood (6 R. I.

138), 486.
Kimball v. Sumner (62 Me. 305)

50, 52.

■CXXXVl

TABLE OF CASES CITED.

[references are to pages.]

Kime v. Brooks (9 Ired. N. Car.

Law, 218), 97, 98.
Kimpton v. Eve (2 Ves. & B. 349),

725, 1304.
Kimpton v. Walker (9 Vt. 191),

520.
Kindersley v. Hughes (7 Mee. &

Wei. 139), 170.
Kinear v. Shands (36 Mo. 379),

1465.
King V. Bird (148 Mass. 578),

699.
King V. Boiling (77 Ala. 594),

950.
King V. Bosserman (13 Super. Ct.

480), 310, 523.
King V. Connolly (51 Cal. 181),

218.
King V. Creekmore (25 Ky. Law

Rep. 1292), 782, 836.
King V. Davis (137 Fed. Rep. 198),

974.
King V. Dickerman (11 Gray,

Mass. 480), 86.
King V. Enterprise Ins. Co. (45

Ind. 43), 457.
King V. Fraser (6 East, 348), 559,

581.
King V. Grant (43 La. Ann. 817),

700.
King V. Hamilton (29 U. S. 311),

1002.
King V. Johnson (7 Gray, Mass.

239), 198.
King V. Jones (5 Taunt. 518), 51.
King V. Kaiser (23 N. Y. Supp.

21), 381.
King V. Large (7 Phila. Pa. 282),

409.
King V. Lawson (98 Mass. 309),

223.
King V. Pedley (1 Ad. & El. 822),

792.
King V. Raab (123 Iowa, 632), 982,

985, 1000.
King V. Reynolds (67 Ala. 229),

672.

King V. Sharp (6 Humph. Tenn.

55), 2.
King V. Wilcomb (7 Barb. N. Y.

263), 132, 1260, 1264.
King V. Wilson (98 Va. 259), 140,

1290, 1374.
King V. Woodruff (23 Conn. 56),

875.
King V. Woodward* (3 B. & Aid.

689), 171.
Kingdon v. Nottle (1 M. & Sel.

355), 51, 884.
Kingsbury v. Collins (4 Bing.

202), 1306.
Kingsbury v. Westfall (61 N. Y.

359), 596.
Kingsland v. Clark (24 Mo. 24),

1178.
Kingsland v. Ryckman (5 Daly,

N. Y. 13), 80.
Kingsmill v. Millard (11 Ex. 313),

961.
Kinney v. Lamon (8 Blackf. Ind.

350), 934.
Kinney v. Watts (14 Wend. N. Y.

38), 698.
Kinsley v. Ames (2 Met. Mass.

29), 232, 234.
Kinsman v. Kinsman (1 Root,

Conn. 180), 1315.
Kiplinger v. Green (61 Mich. 340),

315.
Kirby v. Associates (14 Gray,

Mass. 249), 808.
Kirchner v. Smith (207 Pa. St.

431), 828.
Kirk V. Taylor's Heirs (8 B. Mon.

Ky. 62), 317.
Kirkland v. Wolf (3 Wkly. Law

Bui. Ohio, 114), 1214, 1293.
Kirkpatrick v. Peshine (24 N. J.

Eq. 206), 756.
Kirsley v. Duck (2 Vern. 684),

343.
Kirtland v. Pounsett (2 Taunt.

145), 201.

TABLE OF CASES CITED.

CXXXVll

[references are to pages. 1

Kirtland v. Pounsett (1 Taunt.

570), 559.
Kirton v. Braithwaite (1 Mee. &

Wei. 310), 537.
Kissam v. Barclay (17 Abb. Pr.

N. Y. 360), 1244.
Kistler v. McBride (65 N. J. Law,

553), 522.
Kistler v. Wilson (77 111. App.

149), 1176.
Kitchen v. Lee (11 Paige Ch. N.

Y. 107), 15.
Kitchen Bros. Hotel Co. v. Philbin

(2 Neb. Unof. 340), 400, 416,

697, 1142.
Kites V. Church (142 Mass. 589),

510.
Kittle V. St. John (7 Neb. 73),

1195.
Klay V. Godwin (16 Mass. 1), 215.
Kleckner v. Klapp (2 Watts & S.

44), 106.
Kleespies v. McKenzie (12 Ind.

App. 404), 139.
Klein v. Gehrung (24 Tex. 232),

409.
Klein v. Vinyard (38 Mo. 447),

1465.
Klie V. Von Broock (56 N. J. Eq.

18), 713, 725.
Kline v. Beebe (6 Conn. 494), 10.
Kline v. Chase (17 Cal. 596), 204.
Kline v. Jacobs (68 Pa. St. 87),

561, 848, 874.
Kline v. McLain (33 W. Va. 32),

848, 904.
Klingenstein v. Goldwasser (58 N.

Y. Supp. 342), 163.
Klingle v. Ritter (58 111. 140),

454.
Kloke V. W^olf (111 N. W. Rep.

134), 124.
Knapp V. Jones (143 111. 375),

1110.
Knapp V. Marlboro (29 Vt. 282),

697.

Knapp V. Smith (27 N. Y. 277),

24.
Kneeland v. Beare (11 N. D. 233),

839.
Kneeland v. Schmidt (78 Wis.

345), 1195, 1198, 1235.
Knefel v. Daly (91 111. App. 321),

466.
Knevett v. Poole (Cro. Eliz. 463),

1307.
Knickerbocker Life Ins. Co. v. Pat-

erson (75 N. Y. 589), 44.
Knickerbocker v. Killmore (9

Johns. N. Y. 106), 1088.
Knickerbocker Tr. Co. v. Pa. Cord-
age Co. (62 N. J. Eq. 624), 1248.
Knight V. Bennett (4 Bing. 364),

192, 1314.
Knight V. Coal Co. (47 Ind. 105),

186.
Knight V. Orchard (92 Mo. App.

466), 1279.
Knight V. Mory (Cro. Eliz. 60),

1054.
Knight V. Quigley (2 Camp. 505),

216, 228.
?*night's Case (Moore, 199), 86.
Knoepfel v. Fire Ins. Co. (68 N.

Y. 639), 414, 753.
Knoepker v. Redel (116 Mo. App.

62), 362.
Knolle's Case (Dyer, 5b), 1114.
Knott V. Giles (27 App. D. C. 581),

1416.
Knowles v. Hull (99 Mass. .562),

236.
Knowles v. Inman (16 Colo. 385),

938.
Knowles v. Murphy (107 Cal. 107),

334, 920, 945.
Knowles v. Nichols (14 Fed. Cas.

No. 7,897), 445.
Knowles v. Sells (41 Kan. 171),

1465.
Knowles v. Steele (59 Minn. 452),

377.

cxxxvin

TABLE OF CASES CITED.

[references ABE TO PAGES.]

Knox V. Bailey (4 Mo. App. 581),

519, 573.
Knox V. Hexter "(Tl N. Y. 461),

691.
Knox V. Hunt (18 Mo. 243), 1402,

1441.
Knutsen v. Clinque (99 N. Y. Supp.

910), 898.
Kobbi V. Underbill (3 Sand. Ch,

N. Y. 277), 547.
Koebler v. Brady (144 N. Y. 135),

647.
Koehler & Co. v. Kennedy (72 N.

Y. Supp. 595), 1393.
Koenig v. Miller Bros. Brewing

Co. (38 Mo. App. 182), 1213.
Kobne v. White (12 Wasb. 199),

880.
Koken Iron Works v. Kinealy (86

Mo. App. 199), 164.
Kolasky v. Micbels (120 N. Y.

635), 1391, 1393, 1394.
Kollock V. Kaiser (98 Wis. 104),

1363, 1374.
Kollock V. Scribner (98 Wis. 104),

1373.
Koons V. Steele (19 Pa. St. 203),

964.
Kooystra v. Lucas (1 D. & R. 506),

417, 442.
Koplitz V. Gustanes (48 Wis. 48),

275.
Kopp, In re (2 N. Y. Supp. 495),

15.
Korn V. N. Y. Elevated R. R. Co.

(60 Hun, N. Y. 583), 680, 681.
Kornegay v. Collier (65 N. Car.

69, 72), 492.
Kower v. Gluck (33 Cal. 40), 1212,

1231.
Kramer v. Cook (7 Gray, Mass.

550), 1378, 1379, 1364.
Kratemeyer v. Brink (17 Ind.

509), 317.
Krause v. Krause (58 111. App.

559), 1077.

Krause v. Stein (173 Pa. St. 221),

361.
Krebs v. Dodge (9 Wis. 1), 958.
Kreiss v. Seligman (8 Barb. N. Y.

439), 776.
Kretzer v. Wysong (5 Gratt. Va.

9), 685.
Kribbs v. Alford (120 N. Y. 519),

1080, 1102.
Krouse v. Ross (14 Fed. Cases,

7,939), 1264.
Kruegel v. Berry (75 Tex. 230),

987.
Kruger v. Ferrant (29 Minn. 395),

782, 849.
Krumdieck v. Ebbs (84 N. Y.

Supp. 825), 1219.
Krumweide v. Schroeder (58 Iowa,

160), 678.
Kugel V. Painter (166 Pa. St. 592),

370.
Kuhlman v. Meier (7 Mo. App.

260), 1265.
Kuhn V. Heavenrich Co. (115 Wis.

147), 848.
Kuhn V. Kuhn (70 Iowa, 682),

219.
Kuhn V. Smith (125 Cal. 615), 218.
Kuschell V. Campau (49 Mich.

34), 1408.
Kuttar V. Smith (2 Wall. U. S.

491), 874.
Kuttner v. Haines (135 111. 382),

1456.

L.

Lacey v. Davis (4 Mich. 140), 957.
Lachman v. Deisch (71 111. 59),

681, 704.
Lack V. Wyckoff (11 N. Y. St.

Rep. 678), 1153.
Ladd V. Brown (94 Mich. 136),

1313.
Ladd V. Shattock (90 Ala. 134),

718, 1336.

TABLE OF CASES CITED.

CXXXIX

[references are to pages.]

Ladly v. Creighton (70 Pa. St.

490), llOS.
Ladner v. Balsey (103 Iowa, 674),

478, 1449.
Ladnier v. Stewart (38 So. Rep.

748), 391.
La Farge v. Mansfield (31 Barb.

N. Y. 345), 561, 564, 674, 868.
Laffan v. Naglee (9 Cal. 662), 996,

1081.
Lafferty v. Hawes (63 Minn. 13),

1209.
Lafferty v. Schuykill River East

S. R. Co. (124 Pa. St. 297), 1320.
Lageman v. Kloppenburg (2 E. D.

Smith, N. Y. 126), 544.
Lagerfelt v. McKie (100 Ala. 430),

107, 328.
Laguerenne v. Dougherty (35 Pa.

St. 45), 139.
Laimbeer v. Tailer (125 N. Y.

725), 141.
Laird v. McGeorge (37 N. Y. Supp.

631), 847.
Lake v. Campbell (18 111. 106),

331, 334, 391.
Lake v. Gaines (75 Ala. 143), 1438.
Lake Erie Gas Co. v. Patterson

(184 Pa. St. 364), 8.
Lake Superior Ship Canal Ry. &

Iron Co. V. McCann (86 Mich.

106), 1409, 1410.
Lakin v. Dolly (53 Fed. Rep. 333),

927, 929.
Lamar v. Dixon (L. R. 6 H. L.

514), 192.
Lamar v. McNamee (10 G. & J.

Md. 126), 1193.
Lamar M. & Elev. Co. v. Craddock

(5 Colo. App. 203), 366.
Lamb v. Lamb (146 N. Y. 317),

573.
Lamb v. Swain (3 Jones, N. C.

370), 951.
Lambert v. Hoke (14 Johns. N. Y.

383), 439.

Lambert v. Huber (50 N. Y. Supp.

793), 937, 958.
Lambert v. Huskell (80 Cal. 611),

1185.
Lambert v. Norris (2 M. & W.

333), 580.
Lambeth v. Ponder (33 Ark. 707),

1436.
Lambeth v. Warner (2 Jones, N.

C. 165), 717.
Lametti v. Anderson (6 Cow. N.

Y. 302), 1283.
Lamme v. Dodson (4 Mont. 560),

960.
Lampher v. Glenn (37 Minn. 4),

1340.
Lamphere v. Lowe (3 Neb. 131),

1244.
Lamson v. Clarkson (113 Mass.

348), 934, 935, 936.
Lancashier v. Mason (75 N. Car.

455), 492.
Lancaster v. De Trafford (31 L. J.

Ch. 554), 386.
Lancaster v. Roberts (144 111.

213), 342.
Lancaster v. Whiteside (108 Ga.

801), 1429.
Land Co. v. Manning (Mo. App.

71 S. W. Rep. 696), 490.
Landau v. O. J. Gude Co. (84 N.

Y. Supp. 672), 110.
Lander v. Bagley's Contract (61

L. J. Ch. 707), 387, 607.
Lander's Contract, In re (1892,

3 Ch. 41), 345.
Landsberg v. Tivoli Brew. Co. (10

Det. Leg. N. 63), 202.
Landsell v. Grover (17 Q. B. 589),

182.
Landt v. McCullough (121 111.

App. 328), 1182.
Landt v. Schneider (31 Mont. 15),

847, 853, 1209.
Lane v. Cox (1 Q. B. 415), 785.
Lane v. Crockett (7 Price, 566),

1459.

J

cxl

TABLE OF CxVSES CITED,

[refebexces are to pages.]

Lane v. King (8 Wend. N. Y. 584),

288, 1326.
J.ane's Lessee v. Osment (9 Yerg.

Tenn. 86), 945.
Lane v. Nelson (167 Pa. St. 602),

156.
Lane v. Nelson (31 Atl. Rep. 864),

567.
Lane v. Pollard (88 Mo. App. 326),

1435.
Lane v. Young (66 Hun, 563), 934.
Lane v. Loung (21 N. Y". Supp.

838), 936.
Laney's Estate (14 Pa. C. C. 4),

15, 848.
Lang V. Crothers (51 S. W. Rep.

271), 956.
Lang V. Henry (54 N. H. 57), 387.
Langan v. Schief (55 Mo. App.

213), 173.
Langford v. United States (12 Ct.

CI. 338), 35.
Langraede v. Weaver (65 Ohio St.

17), 333, 1111.
Langsdorf v. LeGardeur (27 La.

Ann. 364), 1215.
Langton v. Horton (1 Hare, 549),

1428.
Lankin v. Terwillinger (22 Oreg.

97), 446.
Lanning v. Howell (2 N. J. Law,

256), 560.
Lansdale v. Richardson (1 W. N.

C. Pa. 413), 459.
Lansing v. Thompson (8 App.

Div. 54), 840, 1347.
Lapere v. Luckey (23 Kan. 534),

409.
Laphani v. Norton (71 Me. 83),

317.
La Plant v. LaZear (31 Iiul. Api).

433), 813.
Larkin v. Avery (23 Conn. 304),

162.
Larman v. Benson (8 Mich. 18),

430.

Larned v. Hudson (60 N. Y. 102),

189, 191, 218.
Larousini v. Werlien (52 La. Ann.

424), 248.
Larrabee v. Lumbert (34 Me. 79),

322.
Lash V. Ames (50 N. E. Rep. 996),

209, 210.
Lasher v. Graves (124 111. App.

646), 539.
Lassell v. Reed (6 Me. 222), 1331.
Last V. Dinn (28 L. J. Ex. — ), 87.
Lataillade v. Santa Barbara Gas

Co. (58 Cal. 4), 937.
Latham v. Atwood (Cro. Car. 515),

1305.
Lathers v. Coates (41 N. Y. Supp.

373), 1149.
Lathers v. Hunt (13 N. Y. Supp.

813), 590.
Lathrop v. Commercial Bank (8

Dana, Ky. 114), 65.
Lathrop v. Standard Oil Co. (83

Ga. 307), 573.
Latta V. Weis (131 Mo. 230), 1093.
Lattimer v. Livermore (72 N. Y.

174), 441.
Laugher v. Williams (1 Salk.

310), 884.
Laughran v. Smith (75 N. Y. 206),

197, 275.
Law V. Haley (9 Ohio Dec. 785),

412, 414.
Lawrence v. Brown (5 N. Y. 394),

1204.
Lawrence v. Burrell (17 Abb. N.

C. N. Y. 313), 1143.
Lawrence v. Conlan (28 Misc. Rep.

44), 28.
Lawrence v. Edwards (7 Ohio St.

194), 1406.
Lawrence v. Fox (20 N. Y. 268),

532.
Lawrence v. French (25 Wend.

443), 1134.
Lawrence v. Haramett (3 J. J.

Marsh, Ky. 287),' 559.

TABLE OF CASES CITED.

cxii

[referk.vces are to pages.]

Lawrence V. Mycenian Marble Co.

(20 N. Y. Supp. 698), 1147.
Lawrence v. Wardwell (6 Barb.

N. Y. 623), 696.
Lawrence v. Webster (44 Cal.

385), 957.
Lawson v. Mowry (52 Wis. 219),

921.
Lawton v. Lawton (3 Atk. 13),

1251, 1269.
Lawton v. Salmon (1 H. Black.

259), 1250, 1252.
Lay V. Bennett (4 Colo. App. 252),

1167.
Lazarus v. Hellman (11 Abb. N.

C. N. Y. 93), 497.
Lazarus v. Phelps (152 U. S. 81),

573.
Ld. Grey de Wilton v. Saxton (6

Ves. 106), 725.
Lea V. Netherton (9 Yerg. Tenn.

315), 966.
Lea V. Polk, etc. Co. (21 How. U.

S. 493), 343.
Leacester v. Biggs (1 Taunt. 367),

23.
Leach v. Beattie (33 Vt. 195), 311.
Leach v. Thomas (7 Car. & P.

328), 138.
Leache v. Goode (19 Mo. 501),

1005, 1006.
Leadbeater v. Roth (25 111. 587),

1136, 1141, 1154, 1182.
Leahy v. Liebman (67 Mo. App.

191), 163.
Learned v. Tlllotson (97 N. Y.

12), 1218.
Learned v. Wannemacher (9 Allen,

Mass. 416), 385.
Leary v. Hutton (129 N. Y. 649),

1371.
Leary v. Hutton (58 Hun, N. Y.

610), 1375.
Leatherman v. Oliver (151 Pa. St.

646), 644.
Leaux v. City of N. Y. (87 App.

Div. 405), 71.

Leavitt v. Fletcher (10 Allen,

Mass. 119), 883, 1351.
Leavitt v. Murray (Wright, Ohio.

707), 338.
Leavitt v. Stern (55 111. App. 416),

384.
Lebanon School Dist. v. Lebanon

Seminary (Pa. 12 Atl. Rep. S57),

922.
Lecatt V. Stewart (2 Stew. Ala.

474), 957.
Ledbetter v. Quick (90 N. Car.

276), 1418.
Ledger v. Stanton (2 John. & H.

689), 534.
Lee v. Adkins (1 Minor, Ala. 187),

232.
Lee V. Gaskell (1 Q. B. Div. 700),

380, 1295.
Lee V. Hernandez (10 Tex. 137),

19L
Lee V. Ingraham (94 N. Y. Supp.

284), 834.
Lee V. Kirby (10 Weekly Law Bui.

449), 917.
Lee V. Lee (83 Iowa, 565), 931.
Lee V. Livingston (143 Mich. 203),

84.
Lee V. Mass. Ins. Co. (6 Mass.

208), 342.
Lee V. McDaniel (1 A. K. Marsh,

Ky. 234), 958.
Lee V. McLaughlin (86 Me. 410),

809.
Lee V. Meeker (2 Wis. 487), 6S2.
Lee V. Mosley (1 You. & C. 607),

604.
Lee V. Payne (4 Mich. 106), 1080,

1095.
Lee V. Quan Wo Chong (91 Cal.

593), 234.
Lee V. Risdon (7 Taunt. 18S),

1256, 1257. 1264.
Lee V. Smith (9 Ex. 662), 147,

525.
Lee V. Smith (42 Ohio St. 458),
917.

cxlii

TABLE OF CASES CITED.

[references are to pages.]

Leeds v. Burrows (12 East, 1),

1337.
Leeds v. Chatham (1 Sim. 146),

883, 1345.
Legg V. Strudwick (2 Salk. 414),

385.
Leggett V. La. Purchase Ex. (97

S. W. Rep. 976), 1207.
Legh V. Hewitt (4 East, 154), 763.
Lehman v. Howze (73 Ala. 302),

1423.
Lehmann v. M'Arthur (L. R. 3 Eq.

746), 1072.
Lehman v. Nolting (56 Mo. App.

549), 99, 150, 194, 195.
Lehman v. Stone (16 S. W. Rep.

784), 1431.
Lehmaier v. Jones (91 N. Y. Supp.

687), 615, 893, 1021.
Lehmayer v. Moses (174 N. Y.

518), 1360.
Leick V. Tritz (94 Iowa, 322), 880.
Leiferman v. Osten (64 111. App.

578), 804.
Leigh V. Dickson (L. R. 12 Q. B.

Div. 194), 82, 84, 91.
Leinenkugel v. Kehl (73 Wis. 238),

Leischmann v. White (1 Allen,

Mass. 489), 1180.
Leitch V. Simpson (Ir. R. 5 Eq.

613), 1071.
Leiter v. Day (35 111. App. 248),

1186.
Leiter v. Pike (127 111. 387), 352.

1178.
Leithan v. Vaught (115 La. 249),

808.
Lemar v. Miles (4 Watts, Pa. 330),

1250.
LeMay v. Williams (32 Ark. 166),

343.
Lembeck Co. v. Kelly (63 N. J.

Eq. 402), 390.
Lemington v. Stevens (48 Vt. 38),

334.

Lemon v. Wolff (121 Cal. 272),

1404.
Lenderking v. Rosenthal (63 Md.

28), 265, 1447.
Lendle v. Robinson (65 N. Y. 894),

812, 834.
Lennon v. Napper (2 Sch. & Let.

684), 1386.
Lennon v. Palmer (5 L. R. 5 Jr.

100), 941.
Lent V. Curtis (24 Ohio C. C. 592),

988.
Lenz V. Aldrich (26 N. Y. Supp.

1022), 824.
Leonard v. Armstrong (73 Mich.

577), 1145, 1153.
Leonard v. Burgess (16 Wis. 41),

492,1113.
Leonard v. Gunther (62 N. Y.

Supp. 99), 839.
Leonard v. Hornelsville (58 N. Y.

Supp. 266), 793.
Leonard v. Kingman (136 Mass.

123), 258.
Leonard v. Storer (115 Mass. 86),

828.
Leonard v. White (7 Mass. 6),

447.
Leo Wolf V. Merritt (21 Wend.

N. Y. 331), 523.
Leppla V. Mackey (31 Minn. 75),

1391, 1392.
Lerch v. Times Co. (91 Iowa,

750), 855.
Leroy v. Piatt (4 Paige, N. Y.

77), 438.
Lesley v. Randolph (4 Rawle, Pa.

123), 131, 172.
Leslie v. Hinson (83 Ala. 266),

1411, 1434.
Leslie v. Smith (32 Mich. 65),

1277.
Lespini v. Porta (89 Cal. 464),

1215.
Lettick V. Honnold (63 111. 335),

1177, 119L

TABLE OF CASES CITED.

C'xliii

[BEFEUEXCES ABE TO PAGES.]

Lever v. Koffler (70 Law J. Ch.

395), 252.
Levering v. Langley (8 Minn.

107), 1213.
Levey v. Dyess (51 Miss. 501),

896.
Levi v. Lewis (6 C. B. N. S. 766),

574.
Levick v. Coppin (2 W. Bl. 801),

25, 56.
Levine v. Baldwin (87 App. Div.

150), 841, 886.
Levitsky v. Canning (33 Cal. 299),

699,703.
Levy V. Bend (1 E. D. Smith, N.

Y. 169), 565.
Levy V. Korn (61 N. Y. Supp.

1109), 840.
Lewis V. Adams (61 Ga. 559), 945.
Lewis V. Angermiller (89 Hun,

65), 1199, 1220, 1228.
Lewis V. Arnold (13 Gratt. Va.

454), 1432.
Lewis V. Baker (75 Law J. K. B.

848), 131.
Lewis V. Beard (13 East, 210),

198.
Lewis V. Brandle (107 Mich. 7),

111.
Lewis V. Burr (8 Bos. N. Y. 140),

1062.
Lewis V. Carson (16 Mo. App.

342), 51.
Lewis V. Chisolm (68 Ga. 40),

563, 852, 867, 875.
Lewis V. Christian (40 Ga. 187),

1463.
Lewis V. Clark (86 Md. 326), 427.
Lewis V. Culbertson (11 S. & R.

Pa. 59), 564.
Lewis V. Effinger (30 Pa. St. 281),

874, 1278.
Lewis V. Hughes (12 Colo. 208),

554, 1349.
Lewis V. Jones (17 Pa. St. 262),

760, 133L

Lewis V. Klotz (39 La. Ann. 259),

1318, 1327.
Lewis V. Lyman (22 Pick. Mass.

437), 1331.
Lewis V. North (87 N. W. 312),

389.
Lewis V. Ocean Nav. & Pier Co.
(125 N. Y. 341), 1265, 1269,

1287.
Lewin v. Pauli (19 Pa. Super. Ct.

447), 814.
Lewis V. Payn (4 Wend. N. Y.

423), 1154, 1180.
Lewis V. Perry (149 Mo. 257),

1289, 1378, 1379.
Lewis V. Ringo (3 A. K. Marsh.

Ky. 247), 41, 55.
Lewis V. St Louis (69 Mo. 695),

663.
Lewis V. Stake (18 Miss. 20),

1233.
Lewis V. Stephenson (67 Law J.

Q. B. 296), 962, 1075, 1370, 1373,

1382.
Lewis V. Wilkins (62 N. C. 303),

492.
Lewiston & A. R. Co. v. Grand

Trunk R. R. Co. (97 Me. 261),

1017.
Leydecker v. Brintnall (158 Mass.

292), 805, 813, 828.
Leyman v. Abeel (16 Johns. N. Y,

30), 1195.
L'Hussler v. Zallee (24 Mo. 13),

672.
Libbey v. Staples (39 Me. 161),

329,330.
Libbey v. Tilford (48 Me. 316),

782,855.
Libby v. Cushman (29 Me. 429),

1450.
Lichtenthaler v. Thompson (13 S.

& R. Pa. 158), 1443.
Lichtig V. Poundt (52 N. Y. Supp.

136). 836.
Liebe v. Nicolai .(30 Oreg. 364),

522.

cxliv

TABLE OF CASES CITED.

[references are to pages.]

Lieberthal v. Montgomery (129

Mich. 369), 1340.
Liebmann's Sons Brew. Co. v.

Lauter (76 N. Y. Siipp. 748),

1058.
Lienow v. Ritchie (8 Pick. Mass.

235), 679, 682.
Liebschutz v. Moore (70 Ind. 142),

1228.
Life V. Sechrest (1 Ind. 512), 937.
Liggett V. Shira (159 Pa. St. 350),

641.
Lightbody v. Truelson (39 Minn.

310,301.
Lightfoot V. Tenant (1 Bos. & Pul.

555), 461, 777.
Lightner v. Brooks (15 Fed. Cas.

No. 8,344), 690.
Lile V. Barnett (2 Bibb. Ky. 166),

1274.
Lilley v. Associates (101 Mass.

532), 517.
Lincoln Trust Co. v. Nathan (175

Mo. 32), 610, 872, 1042, 1340,

1341, 1351.
Lindblom v. Berkman (43 Wash.

356), 421.
Lindeke v. Associates Realty Co.

(77 C. C. A. 56), 170, 605.
Lindemayer v. Ganst (70 Miss.

693), 958.
Lindenbower v. Bentley (86 Mo.

515), 685.
Lindley v. Dakin (13 Ind. 388),

4S2.
Lindley v. Hoffman (22 Ind. App.

237), 361, 362.
Lindley v. Miller (67 111. 244),

564.
Lindley v. Tibbal (40 Conn. 522),

386.
Lindsay v. Leighton (150 Mass.

285), 804, 813, 828.
Lindsay v. Lindsay (11 Vt. 621),

351.
Lindsey v. First Nat. Bank (115

N. C. 553), 411

Lindsey v. Lindsey (45 Ind. 552),

657.
Lindsley v. Schnaider Brew. Co.

(59 Mo. App. 271), 1057, 1080.
Lindstrom v. Pennsylvania Co.

(212 Pa. St. 391), 826, 836.
Line v. Stephenson (6 Scott, 447),

6^8.
Lingles v. Phelps (20 Wis. 398),

1427.
Linke v. Walcutt (69 Ohio Ct.

531), 848.
Linn v. Ross (10 Ohio, 412), 1158,

1340,1345.
Linton v. Hart (25 Pa. St. 193),

541.
Linwood Park Co. v. Van Dusen

(63 Ohio St. 183), 729.
Liquid Carbonic Acid Mfg. Co. v.

Lewis (32 Tex. Civ. App. 481),

1435.
Lisburne v. Davies (L. R. 1 C. P.

260), 962.
Lisle V. Rogers (18 B. Mon. Ky.

528), 343.
Lister v. Lane (62 L. J. Q. B. 583),

887.
Lister Ag. Chem. Works v. Selby

(68 N. J. Eq. 271), 984.
Litchfield v. Flint (104 N. Y. 543),

532.
Little V. Banks (85 N. Y. 258),

532,586.
Little V. Dyer (35 111. App. 85),

469.
Little Falls v. Hausdorf (127 Fed.

Rep. 442), 1294.
Little V. McAdaras (38 Mo. App.

187), 847.
Little Miami Elev. Co. v. City of

Cincinnati (30 Ohio St. 629),

116.
Little V. Palister (4 Me. 209), 212.
Little V. Pallister (3 Me. 6), 688.
Little V. Pearson (7 Pick. Mass.

198), 317, 318.

TABLE OF CASES CITED.

cxlv

[references are to paces.]

Littleton v. Clayton (77 Ala. 571),

920,923.
Littleton v. Wynn (31 Ga. 583),

258, 519, 572.
Lively v. Ball (2 B. Mon. Ky. 53),

920.
Livermore v. Eddy (33 Mo. 547),

1207.
Livingston v. Miller (8 N. Y. 283),

528.
Livingston v. Potts (16 John. N.

Y. 28), 1204.
Livingston v. State (96 Ala. 44),

1248.
Livingston v. Stickles (7 Hill, N.

Y. 253), 743.
Livingston v. Sulzer (19 Hun, N.

Y. 375), 1250, 1252, 1283.
Livingstone v. Reynolds (26

Wend. N. Y. 122), 708.
Livingstone v. Tanner (14 N. Y.

480), 218, 229, 234.
Livingstone v. Tonapkins (4

Johns Ch. 415), 665.
Lloyd V. Capps ( 29 S. W. Rep.

505), 1184.
Lloyd V. Cozens 12 Ash. Pa. 131),

172,1093.
Lloyd V. Crispe (5 Taunt. 249),

1071.
Lloyd V. Gregory (Cro. Car. 502),

1201.
Lloyd V. Langford (2 Mod. 17G),

1199, 1226.
Lloyd V. Powers (4 Dak. 62), 312.
Loan & Discount Co. v. Drake (6

C. B. 796), 1294.
Lobdell V. Hayes (12 Gray, Mass.

236), 49, 50.
Lobdell V. Mason (71 Miss. 936),

98.
Locke V. Coleman (2 T. B. Mon.

Ky. 12), 156.
Locke V. Coleman (4 T. B. Mon.

Ky. 315), 389.
Locke V. Frasher (79 Va. 409),

471, 930, 949.

Locke V. Rowell (47 N. H. 46),

122,123.
Lockwood V. Lockwood (22 Conn.

425), 146, 192, 196, 582, 877,

1222, 1340.
Lockwood V. Stradley (1 Del. Ch.

298), 53.
Lockwood V. Thunder Bay R. Boom

Co. (42 Mich. 536), 258.
Lockwood V. Walker (3 McLean,

N. O. 431), 943.
Lodge V. White (30 Ohio St. 569),

1057.
Loeser v. Liebman (137 N. Y.

163), 1282, 1300.
Lofft V. Dennis (1 E. & E. 474),

851.
Loftus Case (Cro. Eliz. 279), 27.
Loftus V. Maxey (73 Tex. 242),

691.
Logan V. Anderson (2 Doug. Mich.

101), 1199.1238.
Logan V. Barr (4 Harr. Del. 546),

1193.
Logan V. Green (39 N. C. 370),

1228,1233.
Logan V. Herron (8 S. & R. Pa.

459), 139, 156.
Logan V. Simmons (3 Ired. Eq. N.

C. 487), 21.
Loggins V. Buck's Adm'rs (33 Tex.

113), 1353.
Lohmiller v. Water Power Co. (51

Wis. 683), 794.
Loley V. Heller (1 W. N. C. Pa.

613), 463.
Lomax v. Le Grand (60 Ala. 537),

1425, 1431, 1454.
Lombardi v. Shero (14 Tex. Civ.

App. 594), 1316.
Lomis V. Ruetter (9 Watts. Pa.

516), 876.
London v. Milford (14 Ves. 58).

1383.
London v. Warfield (5 J. J. Marsh.

Ky. 196), 1336.

cxlvi

TABLE OP CASES CITED.

[refebences aee to pages.]

London City v. Mitford (14 Ves.

42), 1385.
London City v. Richmond (Pre.

Ch. 156), 1105.
London & N. W. Ry. Co. v. Gar-

nett (21 L. T. 352), 749.
Long V. Fitzsimmons (1 W. & S.

Pa. 530), 848.
Long V. Fletcher (2 Eq. Abr. 5),

479.
Long V. Gieriet (57 Minn. 278),

563,877.
Long V. Madison & Flax Co. (1 A.

K. Marsh. 105), 64.
Long V. Noe (49 Mo. App. 19),

678.
Long V. Poth (37 N. Y. Supp.

670), 101.
Long V. Ramsay (1 Serg. & Pl. Pa.

72), 333, 334.
Long V. Stafford (103 N. Y. 274),

1207, 1208, 1378. 1379.
Long Bros. v. Bolen Coal Co. (56

Mo. App. 605), 170.
Longendyke v. Anderson (101 N.

Y. 625), 446.
Longfellow v. Longfellow (54 Me.

240), 923.
Longmore v. Tierman (3 Pitts.

Pa. 62), 1023.
Longobardi v. Yuliano (33 Misc.

Rep. 472), 584, 597.
Loomer v. Dawson (Cheeves, S. C.

68), 386.
Loomis V. Lincoln (24 Vt. 153),

1400.
Loomis V. O'Neal (73 Mich. 522),

309,311.
Loomis V. Pingree (43 Me. 299),

350.
Looney v. McLean (129 Mass. 33),

804,813.
Lopper V. Bouve (9 Pa. Super. Ct.

452), 1215, 1379.
Lord V. Johnson (120 111. App.

55), 1456.

Lord D'Arcy v. Askwith (Hob.

234), 706.
Lord Chesterfield v. Bolton (Conn.

Rep. 627), 1340.
Lord St. John v. Lady St. Joha

(11 Ves. Jr. 526), 21.
Lorenzen v. Wood (1 McGloin, La.

373), 852.
Lore's Heirs v. Truman (1 Ohio

Dec. 510), 349.
Loring v. Cooke (3 Pick. Mass.

48), 538.
Loring v. Harmon (84 Mo. 123),

920.
Loring v. Taylor (50 Mo. App. 81),

258.
Losee v. Buchanan (51 N. Y. 476),

904.
Loth V. Carty (85 Ky. 591), 1084.
Lothrop V. Thayer (138 Mass.

466), 843.
Loughran v. Ross (45 N. Y. 792),

1265, 1269, 1287.
Loughran v. Smith (11 Hun, N.

Y. 311), 146, 148.
Louisville v. Terminal Co. (72 S.

W. Rep. 945), 836.
Louisville & N. R. Co. v. Smith

(143 Ala. 335), 686.
Loupe V. Genin (45 N. Y. 119),

782, 847.
Loupe V. Wood (56 Cal. 586), 847.
Lounsbery v. Snyder (31 N. Y.

514), 148, 1131, 1132, 1136.
Love V. Bdmonston (23 N. C. 152),

198, 199, 212, 218.
Love V. Edmonston (1 Ired. N. C.

152), 949.
Love v. Law (57 Miss. 596), 1402.
Love v. Teter (24 W. Va. 741),

472.
Lovejoy v. McCarty (94 Wis. 341),

1093,1218.
Lovelock V. Franklyn (8 Q. B.

371), 344.
Lovering v. Lovering (13 N. H.

513), 599.

TABLE OP CASES CITED.

cxlvii

Treferexces are to pages.]

Lovett V. German Reformed

Church (9 How. Pr. N. Y. 220),

488.
Lovett V. United States (9 Ct. CI.

479), 882.
Lowber v. Bangs (2 Wall. U. S.

728), 601, 604.
Lowe V. Adams (70 L. J. Ch. 783),

273.
Lowe V. Brown (22 Ohio, 463),

568. 570.
Lowe V. Emerson (48 111. 150),

924,964.
Lowe V. L. & N. W. Ry. Co. (18

Q. B. 632), 578.
Lowe V. London R. R. Co. (14

Bng. L. & E. R. 19), 62.
Lowell V. Hilton (11 Gray, Mass.

407), 602.
Lowell V. Strahan (145 Mass. 1),

290, 402, 412, 1050.
Lowenstien v. Keller (3 Kulp. Pa.

361), 1188.
Lowery v. Peterson (75 Ala. 109),

1117.
Lowndes v. Fountaine (11 Ex.

487), 764.
Lowrey v. Reef (1 Ind. App.

244), 5.
Lowther v. Caril (1 Vern. 221),

386.
Lowther v. Troy (1 Jr. T. R. 162),

1201.
Lucas V. Brooks (85 U. S. 436),

178,942.
Lucas V. Comerford (3 Bro. C. C.

166), 1105.
L-ucas V. Coulter (104 Ind. 81),

782,785.
Lucas V. Daniels (34 Ala. 188),

968.
Lucas V. How (Sir T. Raym. 250)

639.
Lucas, Ex parte (3 Deac. & C.

144), 607.
Lucas V. McCann (50 Mo. App.

638), 1023.

Lucas V. Price (4 Ala. 672), 53.
Lucas V. Rickerich (1 Lea, Tenn.

726), 22.
Lucas V. Sunbury, etc. R. Co. (32

Pa. St. 458), 393.
Lucente v. Davis (101 Md. 526),

745.
Luchs V. Jones (1 MacArthur, D.

C. 345), 232.
Luckenbill, In re (127 Fed. Rep.

984), 1121.
Lucy v. Lucy (55 N. H. 9), 51.
Lucy V. Wilkins (33 Minn. 441),

592, 1094, 1207. 1223.
Ludford v. Barber (1 Term R.

86), 3, 5.
Ludington v. Garlock (55 Hun,

612), 176.
Ludington v. Seaton (66 N. Y.

Supp. 497)v 1155.
Ludlow V. McCarthy (5 App. Div.

517), 564.
Luff V. Burrows (12 East, 1),

1273.
Lukens v. Hedley (1 W. N. C. Pa.

266), 855.
Lumley v. Backus (73 Fed. Rep.

767), 822.
Lumley v. Gilruth (65 Miss. 23),

1417.
Lumley v. Hodgson (16 East, 99),

575.
Luna V. Gage (37 111. 27), 601.
Lund V. Ozanne (84 Pac. Rep.

710), 553.
Lundin SchoefEel (167 Mass. 465),

668.
Lunn V. Gage (37 111. 19), 563.
Lunsford v. Alexander (20 N. C.

166), 948.
Lunt V. Brown (13 Me. 236), 686.
Lunt V. Norris (1 Burr. 290), 602.
Luney v. Brown (Lutch. 99), 110.
Lunsford v. Turner (5 J. J. Marsh.

Ky. 104), 927.
Lush V. Druse (4 Wend. N. Y.

313), 337, 528.

cxlviii

TABLE OP CASES CITED.

[references are to pages.]

Lushington v. Baldero (15 Beav.

1),726.
Lutz V. Wainwright (193 Pa. St.

541), 465.
Lux V. Haggin (69 Cal. 390), 684.
Luxmore v. Robinson (1 B. & Aid.

584), 884, 897.
Lybbe v. Hart '(54 L. J. Ch. 860),

764.
Lyde v. Russell (1 Barn. & Aid.

394), 1264.
Lyford v. Toothacher (39 Me. 28),

685.
Lyles V. Murphy (38 Tex. 75), 964.
Lyman v. Townsend (24 La. Ann.

625), 772.
Lynch v. Baldwin (69 111. 210),

564, 1131, 1133, 1142.
Lynch, In re (15 Fed. Cas. No.

8,634), 1119.
Lynch v. Lynch (6 Ir. 7 R. 131),

1194.
Lynch v. Onondaga Salt Co. (64

Barb. N. Y. 558), 519, 573, 698.
Lynch v. Ortlieb (87 Tex. 590),

802.
Lynch v. Sauer (16 Misc. Rep. 1),

471, 480, 699, 1173.
Lynch v. Speed (15 Daly, 207),

782.
Lynde v. Hough (27 Barb. N. Y

415), 1052.
Lynn v. Reed (13 M. & W. 285),

1194, 1199.
Lynn v. Ross (10 Ohio, 412), 883.
Lynn v. Waldron (36 Wash. 82),

1263, 1289.
Lyon V. Buerman (57 Atl. Rep.

100), 847.
Lyon V. Cunningham (136 Mass.

532), 193, 198.
Lyon V. Kain (36 111. 363), 341.
Lyon V. La Master (103 Mo. 612),

182, 183.
Lyon V. Miller (24 Pa. St. 392),
464.

Lyon V. Woshburn (3 Colo. 201),

920.
Lyons v. Deppen (90 Ky. 305),

1437.
Lyons v. Gavin (88 N. Y. Supp.

252), 783.
Lyons v. Kain (36 111. 362), 342.
Lyons v. Osborn (45 Kan. 650),.

1369,1378.
Lyons v. Tedder (7 S. C. 69), 1409.
Lysaght v. Callinan (Hayes, 141),

1387.
Lysle V. Williams (15 S. & R. Pa.

136), 346.
Lyster v. Goldwin (1 G. & D. 463),

175.

M.

Mabry v. Harp (53 Kan. 398),

1329.1432.
Macbean v. Irvine (4 Bibb. Ky.

17), 64.
Macdonough v. Starbird (105 Cal.

15), 1251.
Machen v. Hooper (73 Md. 342),

783,899.
Macher v. Foundling Hospital (1

Ves. & B. 187), 733.
Machinery Co. v. Flower (12 De-
troit Leg. N. 214, 103 N. W. Rep.

873), 1055.
Mack V. Burt (5 Hun, N. Y. 28).

527.
Mack V. Dailey (67 Vt. 90), 645,

647, 978.
Mack V. Patchin (42 N. Y. 167),

702,1184.
Mackay v. Mackreth (4 Dougl.

213), 42, 137.
Mackin v. Havin (187 111. 484),

484, 923, 969.
Mackubin v. Whitecroft (4 Har. &

McH. Md. 135), 629.
Maclary v. Turner (9 Houst. Del.

281), 1309.

TABLE OF CASES CITED.

cxlix

[rkfeuences ark to pages.]

Macon v. Dasher (16 S. E. Rep.

75), 71.
Mactier v. Osborn (146 Mass.

399), 634, 666, 667.
Macy V. Elevated R. R. Co. (59

Hun, 365), 680.
Madden v. McKensie (144 Fed.

Rep. 64), 463.
Maddox v. Gray (75 Ga. 452), 349.
Maddox v. White (4 Md. 72), 721,

757.
Madigan v. McCarthy (108 Mass.

376), 1244.
Madison Female Sem. v. United

States (23 Ct. CI. 188), 37.
Maelzer v. Swan (75 Kan. 496),

1431.
Magam v. Lambert (3 Pa. St.

444), 1183, 1340.
Maggort V. Hansbarger (8 Leigh,

Va. 532), 895.
Magill V. Hinsdale (6 Conn. 464),

106.
Magoon v. Minnesota Transfer Pg.

Co. (34 Minn. 434), 326.
Magruder v. Peter (4 Gill & J.

Md. 323), 13.
Mahler, In re (105 Fed. Rep. 428),

1175.
Mahon v. Columbus (58 Miss.

310), 71.
Mahoney v. Alirso (51 Cal. 440),

491.
Main v. Davis (32 Barb. N. Y.

461), 543.
Main v. Feathers (21 Barb. N. Y.

646), 518.
Main v. Green (32 Barb. N. Y.

253), 1060.
Main v. Schwartzwaelder (4 E. D.

Smith, N. Y. 273), 1257.
Maitland v. McKinnon (1 H. & C.

607), 444.
Majestic Hotel Co. v. Eyre (53

App. Div. 273), 1143, 1359.
Majors v. Goodrich (54 S. W. Rep.

919), 252.

Makin v. Watkinson (40 L. J. Ex.

33), 860.
Makin v. "Wilkinson (23 L. T. Rep.

N. S. 473), 860.
Mallam v. Arden (10 Bing. 299),

522.
Mallan v. May (13 Mee. & Wei.

511), 604.
Mallett V. Hillyard (43 S. E. Rep.

779), 1185.
Mallett V. Page (8 Ind. 364), 349.
Malloy V. Real Estate Ass'n (34

N. Y. Supp. 679), 817.
Mammock v. Creekmore (48 Ark.

264), 311.
Man V. Katz (40 Misc. Rep. 645),
■ 1063.

Manby v. Scott (1 Mod. 124), 21.
Manchester v. Doddridge (3 Ind.

360), 198', 206.
Manchester, etc. Ry. Co. v. Ander-
son (67 L. J. Ch. 568), 699.
Manchester Bonded Whse. v. Carr

(49 L. J. C. P. 809), 860.
Mancuso v. Kansas City (74 Mo.

App. 138), 828.
Manett v. Simpson (61 Hun, 620),

109.
Maney v. Lamphere (11 Detroit

Leg. N. 872), 690.
Man. Stamping Works v. Koehler

(45 Hun, 150). 295.
Manle v. Ashmead (20 Pa. St.

483), 701.
Mann v. Antenrieth (17 Hun, N.

Y. 162), 1358.
Mann v. Lovejoy (R. & M. 355),

134.
Mann v. Nunn (43 L. J. C. P. 241),

381,856.
Mann v. Tonner (86 Iowa, 581),

1100.
Mann v. Watters (10 B. & C. 626),

175.
Manning v. West (6 Cush. Mass.

463), 265.

<d

TABLE OP CASES CITED.

[references are to PAGES.l

Mansel v. Norton (L. R. 22 Ch.

Div. 769), 1285.
Mansfield v. Sherman (17 Atl.

Rep. 300), 1002.
Mantooth v. Burke (35 Ark. 540),

920.
Mantz V. Garing (4 Bing. N. C.

451), 857, 889.
Manufacturing Co. v. Porter (112

Ala. 381), 1429.
Mansony v. United States Bank (4

Ala. 746), 30.
Manuel v. Campbell (3 Ark. 324),

600.
Manvers v. Mizem (2 M. & Rob.

56), 175.
Manville v. Gay (1 Wis. 250),

1160.
Mapp V. Phillips (32 Ga. 72), 101.
Marcum v. Hereford (8 Dana, Ky.

1),1116.
Marcy v. Pierce (14 111. App. 91),

481.
Marden v. Jordan (65 Me. 9), 689.
Margart v. Swift (3 McCord, S. C.

378), 1445.
Margolius v. Muldberg (88 N. Y.

Supp. 1048), 833, 848.
Margrave v. Archibold (1 Dow.

P. C. 107), 56.
Marine I. Co. v. Railroad Co. (41

Fed. Rep. 643), 71.
Mariner v. Burton (4 Har. Del.

G9).318.
Mariner v. Chamberlain (21 Wis.

251), 1174, 1183.
Maring v. Ward (50 N. C. 272),

no.

Marje v. Dyche (42 Miss. 347),

1429.
Mark v. Noyes (1 Car. & P. 265),

887.
Mark v. Witzler (39 Cal. 247), 28.
Marltham v. David Stevenson

Brew. Co. (64 N. Y. Supp. 017),

854,1155.

Markin v. Crumble (35 N. Y.

Supp. 1027), 800.
Markin v. Whitaker (26 Ind. App.

211), 1114.
Markle's Estate (17 Pa. Co. Ct

Rep. 337), 44.
Markley V. Swartzlander (8 Watts.

& S. 172), 333.
Markowitz v. Greenwall Theat-
rical Circuit Co. (75 S. W. Rep.

74), 1046.
Marks v. Delaglio (59 N. Y. Supp.

707), 1149.
Marks v. Gartside (16 111. App.

177), 862, 863.
Marks v. Ryan (63 Cal. 107), 1264.
Marks v. Ryan (4 Ky. Law Rep.

842), 1287.
Marley v. Wheelwright (172 Mass.

530), 836.
Marlowe v. Rogers (102 Ala. 510),

315.
Marmiche v. Roumieu (11 La. Ann.

477), 154.
Marney v. Byrd (11 Humph. Tenn.

95), 495.
Maroney Hdwe. Co. v. Connelles

(25 S. W. Rep. 448), 123.
Maroney v. Hellings (110 Cal.

219), 852, 877.
Marquam v. Sengfelder (24 Oreg.

2), 1406.
Marr v. Ray (151 111. 340), 151.
Marr v. Sheffner (2 East, 523),

1422.
Marrs v. Lumpkin (22 Tex. Civ.

App. 448), 1419.
Marsack v. Read (12 East, 57),

175.
Marsalis v. Pitman (68 Tex. 624),

1432.
Marseilles v. Kerr (6 Whart. Pa.

500), 1207, 1216.
Marsh v. Brace (Cro. Jac. 334),

520.
Marsh v. Bristol (65 Mich. 378),

739.

TABLE OP CASES CITED.

ClL

[references are to pages.]

Marsh v. Butterworth (4 Mich.

575), 1171, 1173, 1182.
Marsh v. Masterson (3 N. Y. Supp.

414), 356.
Marsh v. McNider (88 Iowa, 390),

435.
Marsh v. Reed (184 111. 263), 58.
Marshall v. Berridge (51 L. J. Ch.

329), 259, 387.
Marshall v. John Grosse Clo. Co.

(184 111. 421), 1217.
Marshall v. Llnz (115 Cal. 622),

1404, 1435.
Marshall v. Lippman (16 Hun, N.

Y. 110), 1096.
Marshall v. Mosely (21 N. Y. 280),

539.
Marshall v. Rugg (6 Wyo. 270),

727, 898.
Marshall v. Scofield (47 L. T.

406), 1344.
Marshall v. Vickshurg (82 U. S.

146), 665.
Marshall v. White (Harp. 122),

439.
Marshall v. White's Co. (7 Cold.

Tenn. 252), 342.
Marsh, Merwin & Lemmon v. City
of Bridgeport (75 Conn. 495),
74.
Marske v. Willard (169 111. 276),

983.
Marsters v. Cling (163 Mass. 477),

228, 677, 688.
Martens v. O'Connor (101 Wis.

18), 7, 84, 88.
Martin v. Allen (67 Kan. 758),

237.
Martin v. Black (9 Paige, N. Y.

644), 1061.
Martin v. Bliss (5 Blackf. 35),

439.
Martin v. Crompe (1 L. Ray. 340),

87, 610.
Martin v. Davis (96 Iowa, 718),
248, 471.

Martin v. Gilham (7 Ad. & El.

540), 720.
Martin v. Gilham (2 N. & P. 568),

13S.
Martin v. Judd (81 111. 488), 957.
Martin v. Kepner (1 Ohio Dec.

57), 1214.
Martin v. Knapp (57 Iowa, 336),

191, 1316.
Martin v. Martin (7 Ind. 368),

1176.
Martin v. Martin (94 N. W. Rep.

493), 531, 958.
Martin v. O'Connor (43 Barb.

514), 1048.
Martin v. Rector (118 N. Y. 476),

554.
Martin v. Richards (155 Mass.
• 381), 813.
Martin v. Roe (7 E. & B. 236),

1259.
Martin v. Searcy (3 Stew. Ala.

50), 1228.
Martin v. Sexton (112 111. App.

199), 1044.
Martin v. Stearns (52 Iowa, 345),

1193,1198.
Martin v. Surman (116 111. App.

262), 833, 847.
Martin v. Tobin (123 Mass. 85),

1073.
Martin v. Watts (7 T. R. 85), 8,

128, 147, 155, 158.
Martinez v. Thompson (80 Tex.

568), 885.
Martin's Appeal (5 Watts. & S.

Pa. 220), 1441.
Martyn v. Clue (18 Q. B. 661), 617,

912, 1080.
Martyn v. Williams (1 H. & N.

817), 493.
Marvin v. Stone (2 Cow. N. Y.

781), 604.
Marwedel v. Cook (154 Mass.

235). 800.
Marwood v. Waters (13 C. B. 820),
187.

clii

TABLE OF CASES CITED.

[references are to pages. J

Marye v. Dyche (42 Miss. 347)

1400.
Marys v. Anderson (24 Pa. St

272), 346.
Mason v. Clifford (4 Fed. Rep

177), 243.
Mason v. Corder (2 Marsh. 332)

1071.
Mason v. Fenn (3 Peclv. 111. 525)

12G7.
Mason v. Gray (36 Vt. 308), 483.
Mason v. Hill (5 B. & Aid. 1, 24)

431.
Mason v. Howes (122 Mich. 329)

832.
Mason v. Lenderoth (84 N. Y

Supp. 740), 28, 34, 699, 1171.
Mason v. Mason (F. & K. 429)

1124.
Mason v. Moyers (2 Rob. Va. 606)

1311.
Mason v. Payne r47 Mo. 517), 993
Mason v. Smith (131 Mass. 510)

1020.
Mason v. Stiles (21 Mo. 374), 722.

844.
Mason v. Treadway (1 Lev. 145)

1197.
Massachusetts Hosp. Life Ins. Co

V. Wilson (10 Met. Mass. 126)

31.
Massie v. Long (2 Ohio, 287), 84
Massie v. State Nat. Bank (11

Tex. Civ. App. 280), 377.
Massy v. Mead (27 So. Rep. 837)

616, 1391.
Master v. Miller (4 T. R. 320)

343.
Masterson v. Girard's Heirs (10

Ala. 60), 49.
Mastin v. Metzinger (99 Mo. App.

C13),156.
Masury v. Southworth (9 Ohio St.

340), 488, 614, 1040, 1080, 1284.
Math v. Levy (74 Miss. 450),

1254.

Mather v. Trinity Church (3 S. &

R. Pa. 509), 685, 1300, 1331.
Mathes v. Staed (67 Mo. App.

399), 1427.
Mathews v. Burke (32 Tex. 419),

1432.
Mathews v. City of New York

(78 App. Div. 422), 828.
Mathews Slate Co. v. New Em-
pire S. Co. (122 Fed. Rep. 972),

989.
Mathewson v. Wrightman (4 Esp.

5), 172.
Mathinet v. Giddings (10 Ohio,

364), 1285.
Mathis V. McCord (Wright, Ohio,

647), 877.
Matthews v. Hipp (66 S. C. 162),

146,201.
Matthews v. His Creditors (10 La.

Ann. 718), 1422.
Matthews v. Mayor, etc. (14 Abb.

Pr. N. Y. 209), 61.
Matthews v. Matthews (49 Hun.

346), 284.
Matthews v. New Empire Slate

Co. (122 Fed. Rep. 972), 980.
Matthews v. People's Nat. Gas. Co.

(179 Pa. St. 165), 641.
Matthews v. Tobener (39 Mo. 115),

1199, 1207.
Matthews v. Usher (68 L. J. Q. B.

988), 628.
Matthews v. Ward (10 G. & J. Md.

),354.

Matthews v. Whetton (Cro. Car.

233), 647.
Matthews v. Whitaker (23 S. W.

Rep. 528), 1046.
Matthew's Ai)peal (104 Pa. St.

444), 954.
Mattice v. Lord (30 Baii). N. Y.

382), 629.
Mattis v. Robinson (1 Neb. 3),

922.
Mattison v. Oliver (2 Leg. Op. Pa.

48), 1006

TABLE OF CASES CITED.

clii'i

[referexces are to pages.]

Mattoon v. Munroe (21 Hun, N. Y.

74), 117, 1173.
Mattox V. Helm (5 Litt. Ky. 186),

191.
Matts V. Robinson (7 M. & G. 701),

953.
Maughlin v. Perry (35 Md. 352),

617,982.
Maul V. Rider (59 Pa. St. 167),

496.
Mauldin v. Cox (07 Cal. 387), 965.
Mauley v. Zeighler (23 Tex. 88),

333.
Maunsell v. Hart (1 L. R. Jr. 88),

740, 769.
Maus V. Worthing (4 111. 26), 97.
Mausert v. Christian Feigenspan

(68 N. J. Eq. 671), 381.
Maverick v. Lewis (3 McCord, S.

C. 211), 243.
Mavor v. Northern Trust Co. (93

111. App. 314), 32.
Maxwell v. Habon (22 Tex. Civ.

App. 565), 10.
Maxwell v. Higgins (38 Neb. 671),

958.
Maxwell v. Stewart (22 Wall. U

S. 77), 1466.
Maxwell v. Urban (22 Tex. Civ.

App. 565), 492, 697, 1075, 1112.
Maxwell v. Ward (13 Price, 674),

1387.
May, In re (47 How. Prac. 87),

1119.
May V. Calder (2 Mass. 55), 10.
May V. Ennis (79 N. Y. Supp.

896), 801.
May V. Gillis (169 N. Y. 330),

1360.
May V. McGaughey (60 Ark. 357),

1425.
May V. Rice (108 Mass. 150), 208.
May V. Smith (3 Mackey, 55),

446.
May V. Thomson (20 Ch. D. 805),

259.

May V. Thompson (51 L. J. Ch.

917), 2SS.
Mayer v. Laux (43 N. Y. Supp.

743), 918.
Mayer v. Lyon (69 Ga. 577), 679.
Mayer v. MoUer (1 Hilt. N. Y.

491), 328, 782.
Mayer v. Schrumpf (141 Mo. App.

54), 837, 847.
Mayer v. Waters (45 Kan. 78),

1165.
Mayfield v. Wadsley (3 B. & C.

357), 1337.
Mayhew v. Hardesty (8 Md. 479),

1101,1107.
Mayhew v. Suttle (4 E. & E. 347),

301.
Mayhew's Case (1 Coke, 147), 5.
Mayn v. Beak (Cro. Eliz. 515),

347.
Maynard v. Maynard (10 Mass.

457), 349, 1074.
Mayne v. Jones (34 Cal. 483),

976.
Mayo V. Chenoweth (1 III. Breese,

200), 340.
Mayo V. Fletcher (14 Pick. Mass.

525), 29.
Mayor of New York v. Ketchum

(67 How. Pr. N. Y. 166), 539.
Mayor of New York v. Mabie (13

N. Y. 151), 697.
Mayor of Thetford v. Tyler (8 Q.

B. 95), 141.
Mayor, etc. Poole v. Whitt (18 M.

& W. 571), 921.
Maywood v. Logan (78 Mich. 135),

791,805.
McAdoo V. Galium (86 N. C. 419).

136S.
McAfee v. Ferguson (9 B. Mon.

Ky. 475), 21.
McAlester v. Landers (70 Cal. 79,

82), 563, 699.
McAlister v. Clark (33 Conn. 91),

777.

cliv

TABLE OF CASES CITED.

[eefekences aee to pages.]

McAllister T. Reel (53 Mo. App.

81), 1280.
McAlpin V. Powell (70 N. Y. 126),

848,918.
McArthur v. Sears (21 Wend. N.

Y. 190), 901.
McAuliff V. Parker (10 Wash.

141), 961.
McAusland v. Pundt (1 Neb. 211),

934.
McAvoy V. Wright (137 Mass.

207), 798.
McBee v. Sampson (66 Fed. Rep.

416), 1094.
McBride v. Bank (28 Barb. N. Y.

476), 1466.
McBride v. Daniels (92 Pa. St.

332), 907.
McBrien v. Marshall (126 Pa. St.

290), 1364.
McBrier v. Marshall (126 Pa. St.

390), 877.
McCaffrey, In re (50 Hun, 371),

57.
McCaffrey v. Woodin (65 N. Y.

459), 279, 1404, 1405, 1428.
McCall V. Walter (71 Ga. 287),

1295.
McCampbell v. McCampbell (5

Litt. Ky. 92), 2.
McCardell v. Miller (22 R. I. 96),

575.
McCardell v. Williams (19 R. I.

701), 483, 876.
McCarthy v. Bank (74 Me. 415),

828.
McCarthy v. Brown (113 Cal. 15),

212.
McCarthy v. Foster (156 Mass.

511 ).818.
McCarthy v. Humphrey (105

Iowa, 545), 428, 1009.
McCarthy v. Noble (5 N. Y. 380),

341.
McCarthy v. Truemacher (108

Iowa, 384), 1289.

McCarthy v. York Co. Sav. Bank

(74 Me. 315), 840.
McCartney v. Auer (50 Mo. 395),

484.
McCaskle v. Amerine (12 Ala.

17), 974.
McCaw V. Barker (115 Ala. 543),

83.
McCarty v. Ely (4 E. D. Smith,

N. Y. 375), 874.
McCarty v. New York, etc. R. Co.

(30 Pa. St. 251), 903.
McClain v. Abshire (72 Mo. App.

390). 1428.
McClellan v. Krall (43 Kan. 216),

291.
McClellan v. Whitney (65 Vt.

510), 310.
McClelland v. Rush (150 Pa. St.

57), 383, 385, 1379, 1380.
McClenahan v. City of New York

(102 N. Y. 75), 1154.
McClenahan v. Gwynn (3 Munf.

Va. 556), 1081.
McClintock v. JojTier (77 Miss.

678), 616, 1391, 1376, 1382.
McClosky V. Miller (72 Pa. St.

151), 573.
McClowry v. Croghan's Adm'r (31

Pa. St. 22), 606.
McClung V. Condict (6 N. W. Rep.

399), 535.
McClung V. McPherson (47 Oreg.

73), 168, 617.
McClure v. Colelough (17 Ala. 89),

349.
McClure v. McClure (74 Ind. 108),

156.
McClurg V. Price (59 Pa. St. 420),

1134,1190.
McColgan v. Katz (GO N. Y. Supp.

291), 106, 109.
McComb's Appeal (43 Pa. St. 435),

1423.
McCombs V. Becker (5 Thomp. &

C. 550), 1320.

TABLE OF CASES CITED.

clv

[references ABE TO PAGES.]

McConnell v. East Point Land Co.

(100 Ga. 129), 1096.
McCormick v. Anastaki (66 N. J.

Law, 211), 836.
McCormick v. Stephany (61 N. J.

Eq. 208), 980, 987.
McCord Rubber Co. v. St. Jos.

Water Co. (181 Mo. 678), 797.
McCoull v. Herzberg (33 111. App.

542), 1149.
McCourt V. Singers-Bigger (76 C.

C. A. 73), 1393.
McCoy V. Hill (2 Lltt. Ky. 372),

867.
McCoy V. Scott (2 Rawle, Pa. 222),

52.
McCracken v. Hall (7 Ind. 30),

1256.
McCready v. Lindenborn (172 N.

Y. 400), 629.
McCreery v. Everding (54 Cal.

168), 974.
McCrelish v. Churchman (4

Rawle, Pa. 26), 601.
McCroy v. Toney (66 Miss. 233),

384.
McCullough V. Fox (6 Barb. N. Y.

386), 601.
McCutcheon v. Crenshaw (40 S.

C. 511), 303.
McDermott v. Dwyer (91 Mo. App.

185), 1464.
McDevitt V. Lambert (80 Ala.

536), 150, 151, 159, 163.
McDewitt V. Sullivan (8 Cal. 592),

934.
McDonald v. Bromley (6 Phila.

Pa. 302), 409.
McDonald v. Flamme (13 Abb. N.

Y. 356), 842.
McDonald v. Hanlon (79 Cal.

442), 485.
McDonald v. May (69 S. W. Rep.

1059), 1096.
McDonald v. Schneider (27 Mo.

405), 72.

k

McDonnel v. White (11 H. L. Cas.

271), 1124.
McDonnell v. Cambridge (151

Mass. 159), 686.
McDonough v. Starbird (105 Cal.

15), 164.
McDowell V. Hendrix (67 Ind.

513), 49.
McDowell V. Simpson (3 Watts.

Pa. 135), 98, 133, 196, 197, 389.
McElheny v. Musick (63 111. 328),

16.
McElvaney v. Smith (76 Ark.

468), 1184.
McEowen v. Drake (14 N. J. Law,

523), 219.
McFadden v. McCann (25 Iowa,

252), 1378, 1387.
McFadin v. Rippey (8 Mo. 738),

1131, 1136, 1178.
McFall V. McFall (35 S. C. 559),

137.
McFarlan v. Watson (3 N. Y.

286). 1096.
McFarland v. Chase (7 Gray,

Mass. 462), 208.
McFarland v. Heim (127 Mo. 327),

1073.
McFarland R. E. Co. v. Joseph

Gerardi Co. (202 Mo. 597), 33.
McFarlane v. Pierson (21 111. App.

566) 1152.
McFarlane v. Williams (107 III.

33), 329, 505, 522, 1016.
INIcGee v. Gibson (1 B. Mon. Ky.

105). 203.
:\IcGinley v. Alliance Trust Co.

(168 Mo. 257), 800, 804.
McGinnis v. Fernandes (32 111.

App. 424), 1327.
McGinnis v. Porter (20 Pa. St.

80), 958, 966.
McGlanflin v. Holman (1 Wash.

St. 239), 334, 496.
McGlashan v. Tallmadge (37 Barb.

N. Y. 313), 783.

clvi

TABLE OP CASES CITED.

[references are to pages.]

McGlynn v. Brock (11 Mass. 219),

518.
McGlynn v. Moore (25 Cal. 384),

348,638.
McGrath v. Boston (103 Mass.

369), 246.
McGreary v. Osborne (9 Cal. 119),

1254.
McGregor v. Board of Education

(107 N. Y. 511), 897.
McGregor v. Brown (10 N. Y

114), 716.
McGuffie V. Carter (42 Mich. 497),

934.
McGuire v. Spencer (91 III. 303),

825.
McGunnagle v. Thornton (10 S. &

R. Pa. 251), 98, 561.
McHenry v. Maar (39 Md. 510),

865.
Mclntire v. Patton (9 Humph.

Tenn. 447), 920.
Mcintosh V. Hodges (70 N. W.

Rep. 550), 195.
Mcintosh V. Hodges (110 Mich.

319), 201.
Mcintosh V. Lown (49 Barb. N. Y.

550), 883.
Mcintosh V. Rector (120 N. Y. 7),

1388.
Mcintosh V. St. Phillips Church

(120 N. Y. 7), 912.
Mclntyre v. Strong (48 N. Y.

127), 350.
McKanna v. Merry (61 111. 177),

18.
McKay v. Bloodgood (9 Johns. N.

Y. 285), 332.
McKay v. McNally (4 L. R. Ir.

438), 1051.
McKay v. Mumford (10 Weiul, N.

Y. 351), 83.
McKean v. Smoyer (37 Neb. 694),

1319.
McKean & Elk L. Co. v. Mitchell

(35 Pa. St. 269), 336.

McKee v. Angelrodt (16 Mo. 283),

1101.
McKee v. Howe (17 Colo. 538), 42.
McKelby v. Webster (170 Pa. St.

624), 1328.
McKenzie v. Cheetham (83 Me.

543), 785.
McKenzie v. Harrison (120 N. Y.

260), 460, 556.
McKenzie v. Hatton (141 N. Y. 6),

1132, 1164, 1176.
McKenzie v. Hesketh (47 L. J. Ch.

231). 266.
McKenzie v. Lexington (4 Dana,

Ky. 129), 1195, 1240.
McKenzie v. McLeod (10 Bing.

385), 844.
McKenzie v. Sykes (47 Mich. 294),

250.
McKeon v. Cutler (156 Mass. 296),

428.
McKeon v. Cutter (156 Mass. 296),

785, 835, 839.
McKeon v. Wendelken (55 N. Y.

Supp. 626), 1080.
McKeon v. Wliitney (3 Denio, N.

Y. 452), 560.
McKensie v. Farrel (4 Bosw. N.

Y. 192), 595.
McKesson v. Mendenhall (64 N.

C. 286), 564.
McKiernan v. Lenzen (56 Cal. 61),

65.
McKinney v. Herrick (66 Iowa,

414), 361.
McKinney v. Reeder (7 Watts, Pa.

123), 1072.
McKinnis v. Scottish-American

Mortg. Co. (55 Kan. 259), 930.
McKircher v. Hawley (16 .Johns.

N. Y. 289), 31, 288.
McKissack v. Bullington (37 Miss.

535), 263.
McKissick v. Ashby (98 Cal. 422),

922, 950.
McKlewey v. Canty (95 Ala. 295),

1422.

TABLE OP CASES CITED.

clvii

[rekkrkxcss are to pages.]

McLain Inv. Co. v. Cunningham

(87 S. W. Rep. 605), 1250.
McLarren v. Spaulding (2 Cal.

510), 1162.
McLaughlin v. Armfield (58 Hun,

376), 916.
McLaughlin v. Bishop (35 N. J.

Law, 512), 462.
McLaughlin v. Dunn (45 Mo. App.

645), 573.
McLaughlin v. Longan (4 Ir. Eq.

325), 1124.
McLaughlin v. McGovern (34

Barb. N. Y. 208), 91.
McLean v. Bovee (24 Wis. 295),

1325.
McLean v. Caldwell (107 Tenn.

138), 1086, 1093.
McLean v. Carroll (6 Rob. La. 43),

1188.
McLean v. McLean (10 Bush. Ky.

167), 1465.
McLean v. Nichol (43 Minn. 169).

459.
McLean v. Palmer (2 Kulp. Pa.

349), 1247.
McLean v. Spratt (20 Fla. 515),

938.
McLellan v. Whitney (65 Vt. 510),

1318.
McLennan v. Grant (8 Wash. 603),

943, 944.
McLeran v. Benton (73 Cal. 329),

209, 234, 235.
McLott V. Savery (11 Iowa, 323),

591.
McMahan v. Jacoway (105 Ala.

585), 1228.
McMann v. Autenrieth (17 Hun,

163), 1152, 1355.
McManus v. Fair Co. (60 Mo. App.

216), 1015.
McMaster v. Kohner (44 N. Y.

Supp. Ct. 253), 555.
McMillan v. N. Y. Water Proof

Paper Co. (29 X. J. Eq. 610),

124S.

McMillan v. Solomon (42 Ala.

356), 397, 1342.
McMullen v. Erwin (58 Ga. 427),

957.
McMurphy v. Minot (4 N. H. 251),

554.
McMurray v. Harway (56 N. Y.

337), 644.
McNair v. Schwartz (16 111. 24),

318.
McNally v. Connolly (70 Cal. 3),

1244.
McNamara v. O'Brien (2 Wyo.

447), 229.
McNeal v. Ryder (79 Minn. 152),

309, 311.
McNeeley v. Hunter (30 Mo. 332),

690.
McNeely v. Hart (10 Ired N. C.

Law, 63), 308.
McNeil V. Kendall (138 Mass.

245), 2049.
McNulty V. Duffy (59 N. Y. Supp.

592), 526.
McQuade v. Emmons (38 N. J.

Law, 397), 303.
McQuestion v. Morgan (34 N. H.

400), 638.
McQuire v. Gerstley (26 App. Div.

193), 463.
McRickard v. Flint (114 N. Y.

222), 916.
McVicker Gaillard Realty Co. v.

Garth (97 N. Y. Supp. 640),

1023.
McWilliams v. Hagan (4 Rob. La.

374), 874.
Mc Willie v. Hudson (1 Tread.

Const. S. C. 119), 1441.
Mead v. Madden (85 App. Div.

10), 1086.
Mead v. Thompson (67 111. 395),

1439.
Meader v. Brown (5 N. Y. St. Rep.

839), 1265.
Meadows v. Cozart (76 N. C. 450),

343.

clviii

TABLE OF CASES CITED.

[references are to pages.]

Meath v. Watson (76 111. App.

516), 1059.
Median v. Grifflng (3 Pick. Mass.

149), 497.
Medary v. Gathers (161 Pa. St.

87), 848.
Medinah Temple Co. v. Currey,

647, 1050.
Medway Cotton Co. v. Adams (10

Mass. 360), 341.
Medwin v. Sandham (3 Swanst.

685), 364.
Meehan v. Forrester (52 N. Y.

277), 101.
Meek v. Breckinridge (29 Ohio St.

642), 442.
Meeker v. Spalsbury (66 N. J.

Law, 60), 1131.
Meeks v. Bowerman (1 Daly, N.

Y. 99), 783, 1160.
Meeks v. Ring (4 N. Y. Supp.

117), 345.
Mees V. Ansell (3 Wils. 275), 465.
Meffert v. Dyer (107 Mo. App.

462), 1319, 1321.
Megan v. Johnson (2 Taunt. 148),

198.
Megarge v. Tanner (1 Clark, Pa.

331), 1443.
Mehr v. Krewzberg (187 Pa. St.

53), 922.
Meier v. Thiemann (15 Mo. App

207), 206, 233.
Meig's Appeal (62 Pa. St. 28).

1247.
Melhop V. Meinhart (70 Iowa,

685), 211.
Melling v. Leake (16 Com. Bench,

N. S. 652), 223.
Mellor V. Watkins (L. R. 9 Q. B.

400), 1206.
Mem ford v. Brown (1 Wend. N. Y.

53), 83.
Memphis v. Miller (78 Mo. App.

67), 825.
Mendel v. Delano (48 Mass. 176),

445.

Mengelle v. Abadle (48 La. Ann.

669), 689.
Menger v. Ward (87 Tex. 622),

997, 1046, 1100, 1251.
Meni v. Rathbone (21 Ind. 454),

638.
Menk v. Cooper (2 Ld. Raym.

147), 1340.
Menough's Appeal (5 Watts & S.

Pa. 432), 522.
Merc. Loan & T. Co. (115 111. App.

101), 803, 813.
Mercer v. Cross (79 Ga. 432), 1411.
Merceron v. Dawson (5 B. & C.

479), 543, 1080.
Merchants' Ins. Co. v. Mazange

(22 Ala. 168), 1041.
Merchants' Nat. Bank v. Stanton

(55 Minn. 211), 212.
Merchants' & Planters' Bank v,

Meyer (56 Ark. 499), 1449.
Merchants' State Bank of Fargo

V. Ruettel (12 N. D. 519), 389.
Meridith Machanic Ass'n v. Amer-
ican Twist-Drill Co. (66 N. H.

267), 877.
Meriwether v. Booker (5 Litt. Ky.

256). 20.
Meriwether v. Garrett (102 U. S.

472), 71.
Merriam v. Cunningham (11 Cush.

Mass. 40), 18.
Merriam v. Ridpath (16 Wash.

104), 1266.
Merrill v. Bullock (105 Mass. 486),

235, 236.
Merrill v. Ressler (37 Minn. 82),

1404.
Merrill v. Willis (51 Neb. 162),

1215.
Merritt v. Brinkerhoff (17 Johns.

N. Y. 306), 431.
Merritt v. Dufur (99 Iowa, 211),

478.
Merritt v. Fisher (19 Iowa, 354),.

1400, 1464.
Merritt v. Judd (14 Cal. 59), 1277.

TABLE OP OASES CITED.

clix

[REB'ERE-NCES ABE TO PAGES.]

Merrill v. Ressler (37 Minn. 82),

279.
Mershom v-. Williams (62 N. L. J.

779), 1378.
Merwin v. Camp (3 Conn. 35),

923, 931, 946.
Meserole v. Hoyt (161 N. Y. 59),

1355.
Messenger v. Armstrong (1 T. R.

54), 155.
Messenger v. Pate (42 Iowa, 444),

916.
Messent v. Reynolds (3 B. & C.

201), 698.
Metcalf V. Fosdlck (23 Ohio St.

114), 1410. 1440.
Metcalf V. Smith (106 Ala. 301),

122.
Metoyer v. Larenandier (6 Rob.

La. 139), 964.
Met. Concert Co. v. Sperry (9 N.

Y. St. Rep. 342), 1281.
Metropolitan Land Co. v. Man-
ning (98 Mo. App. 248), 628,

1036.
Meyer v. Henderson (16 S. Rep.

729), 1347.
Meyer v. Huneke (55 N. Y. 412),

547.
Meyer v. Livesley (78 Pac. Rep.

670), 313.
Meyer v. O'dell (18 Tex. Civ. App.

210), 1423.
Meyer v. Rothschild, (46 La. Ann.

1174), 1056.
Meyer v. Smith (33 Ark. 627),

1214, 1215.
Meyer v. Thomas (131 Ala. 65),

32.
Meyers v. Burns (33 Barb. N. Y.

401), 615.
Meyers v. Sea Beach Ry. Co. (167

N. Y. 581), 1185.
Michael v. Curtis (60 Conn. 363),

200.
Michaels v. Fishel (169 N. Y. 381),

459, 630.

Michael v. O'Brien (6 Misc. Rep.

408), 647.
Michau v. Walsh (6 Mo. 346), 672.
Michigan Central R. Co. v. Bul-

lard (120 Mich. 416), 924.
Mickle V. Douglas (75 Iowa, 78),

211, 1286.
Mickle V. Lawrence (5 Rand. Va.

571), 243.
Mickle V. Miles (31 Pa. St. 20),

505.
Midgett V. Brooks (12 Ired. L. N.

C. 145), 599.
Middlebrook v. Corwin (15 Wend.

N. Y. 169), 763. 1331, 1332.
Middlekauf v. Smith (1 Md. 329),

879.
Middleton's Ex'rs v. Middleton (35

N. J. Eq. 141), 520.
Miland v. Meiswinkel (82 111. App.

522). 905.
Miles V. Elkin (10 Ind. 329), 317.
Miles V. Murphy, Jr. (R. 5 C. L.

382), 171.
Miles Co. V. Gordon (8 Wash.

442), 292.
Milford V. Holbrook (9 Allen,

Mass. 17), 813.
Mill Dam Foundry v. Hovey (21

Pick. Mass. 417), 467.
Millard v. Baldwin (3 Gray, Mass.

484), 533.
Millard v. Robinson (4 Hill, N. Y.

604), 1444.
Miller, Ex parte (2 Hill, N. Y.

418), 117.
Miller v. Baker (1 Met. Mass. 27),

132, 1260.
Miller v. Bider (105 N. W. Rep.

594), 1426.
Miller v. Bonsadon (9 Ala. 317),

923.
Miller v. Bristol (29 Mass. 550),

445.
Miller v. Fitzgerald Dry Goods Co.

(62 Neb. 270), 414, 419.

clx

TABLE OF CASES CITED,

[ FJiFEREK CES ARE TO PAGES.]

Miller v. Hancock (4 Rep. 478),

814, 816.
Miller v. Havens (51 Mich. 482),

1324.
Miller v. Havens (51 Mich. 999),

665.
Miller v. Hawes (58 111. App. 667),

1094.
Miller v. Hennessy (94 N. Y. Supp.

563), 1300.
Miller v. Hine (13 Ohio, 565), 24.
Miller v. Johnson (12 Wend. N. Y.

197), 1444.
Miller v. Lampson (66 Conn. 432),

168.
Miller v. Lang (99 Mass. 12), 964.
Miller v. Maguire (18 R. I. 770),

776, 1129, 1132, 1136, 1164.
Miller v. Mainwaring (Cro. Car.

397), 5, 229.
Miller v. McArdell (19 R. I. 304),

857, 879.
Miller v. McBaier (14 S. & R. Pa.

385), 243, 927.
Miller v. Mitchell (13 Ind. App.

190), 1161, 1175, 1180.
Miller v. Morris (55 Tex. 412),

896.
Miller v. Prescott (163 Mass. 12),

655, 723, 770.
Miller v. Rinaldo (47 N. Y. Supp.

336), 859.
Miller v. Sharp (68 L. J. Ch. 322),

389, 1384.
Miller v. Turney (13 Ark. 385),

951.
Miller v. Waddingham (25 Pac.

Rep. 689), 1243.
Miller v. Warren (182 N. Y. 539),

957, 1100.
Millers v. Augusta (63 Ga. 772),

117.
Millett V. Lagomarsino (39 Pac.

Rep. 308), 965.
Millhouse v. Patrick (0 Rich. Law,
S. C. 350), 922, 948. 964.

Milliken v. Faulk (111 Ala. 658),

392, 395.
Milliken v. Thorndike (103 Mass.

382), 477.
Milling V. Becker (96 Pa. St. 182),

1207, 1208.
Millot V. Conrad (112 La. 928),

1425.
Mills V. Goff (14 Mee. & Wei. 72),

160.
Mills V. Hamilton (49 Iowa, 105),

487.
Mills V. Hoaton (52 Iowa, 215),

487.
Mills V. Matthews (7 Md. 315),

1447.
Mills V. Merryman (49 Me. 65),

49.
Milltown V. Goodman, Jr. (R. 10

C. L. 27), 351.
Milner v. Cooper (65 Iowa, 190),

1463.
Milnes v. Branch (5 M. & S. 411),

488.
Milnes v. Gerry (14 Ves. 407),

983, 1293.
Milton V. Hayden (32 Ala. 30),

933.
Minard v. Burtis (83 Wis. 267),

234.
Miner v. Beekman (11 Abb. Prac.

N. Y. 147), 28.
Miner v. Taggart (3 Binn. Pa.

205), 1042.
Minneapolis Ry. Co. v. Columbia

R. Mill Co. (119 U. S. 149), 991.
Minn. Co-op. Co. v. Williamson

(51 Minn. 53), 1147, 1358.
Minor v. Sharon (112 Mass. 477),

477, 795, 796, 1150.
Minot V. Joy (118 Mass. 308, 310),

1020.
Minshull v. Oakes (2 H. & N. 793),

1080.
Minton V. Geiger (28 L. T. 449),

398.

TABLE OF CASES CITED.

clxi

[P.p:rEREXCES ARE TO PA(;ES.]

Mirick v. Bashford (38 Barb. N.

Y. 191), 878.
Mirick v. Hoppin (118 Mass. 582),

30, 1136.
Misamore's Estate (90 Cal. 169),

51.
Mississenewa M. Co. v. Andrew

(22 Ind. App. 523), 514.
Missouri, K. & T. Co. v. Fullmore

(26 S. W. Rep. 238), 682.
Missouri, Ky. & T. Ry. Co. v.

Keahey (S3 S. W. Rep. 1102),

1098.
Missouri Pac. Ry. Co. v. Moffitt

(94 Mo. 56), 443.
Mitchell V. Badgett (33 Ark. 387),

279,1404.
Mitchell V. Bartlett (51 N. Y. 447),

34.
Mitchell V. Billingsley (17 Ala.

391), 1259.
l\Iitchell V. Blossom (24 Mo. App.

48), 1198, 1223.
Mitchell V. Commonwealth (37 Pa.

St. 187), 264.
Mitchell V. Ball (2 Har. & G. Md.

159), 552.
Mitchell V. Hazen (4 Conn. 495),

599.
Mitchell V. McNeal (4 Colo. App.

136), 884.
Mitchell V. Nelson (13 S. C. 105),

907.
Mitchell V. Pendleton (21 Ohio St.

664), 573.
Mitchell V. Plaut (31 111. App.

148), 563, 877.
Mitchell V. Printup (48 Ga. 455),

1291.
Mitchell V. Read (61 N. Y. 123),

1104.
Mitchell Y. Ryan (3 Ohio St. 377),

352.
Mitchell V. Scott (62 N. H. 596),

774.
Mitchell V. State (34 Tex. Cr. Rep.

311), 778.

Mitchell V. Stewart (13 S. & R.

Pa. 295), 1444.
Mitchell V. United States (9 Fet-
ters, U. S. 711), 38.
Mitchell V. Winslow (2 Story,

644), 1428.
Mittelstadt v. Wulfers (1 Misc.

Rep. 215), 1157.
Mixon V. Coffield (24 N. C. 301),

1230.
Mizner v. Moore (10 Gray, Mass.

290), 213.
Mobley v. Bruner (59 Pa. St. 481),

90.
Moderwell v. Mullison (21 Pa. St,

257), 93.
Moen V. Lillestal (5 N. D. 327),

321.
Moffat V. Henderson (50 N. Y.

Super. Ct. R. 211), 1010.
Moffatt V. Smith (4 N. Y. 126),

877, 1113.
Moffatt V. Strong (22 N. Y. Super.

Ct. Rep. 57), 564, 1178.
Molineux v. Molineux (Cro. Jac.

144), 634.
Molitor V. Sheldon (37 Kan. 246),

445.
:\Iolony V. Kernan (2 Dr. & War.

31), 474.
Momrich v. Schwartz (96 N. W.

Rep. 636), 1457.
Montague v. Gay (17 Mass. 439),

491, 541.
Montague v. Mial (89 N. Car.

137), 1424.
Montague v. Sewell (57 Md. 412),

277.
Montanye v. Wallahan (84 111.

355), 341, 1171, 1182.
Monck V. Geekle (9 Ad. & EI.

841), 130, 144.
Monks V. Dykes (4 M. & W. 507),

282.
Monroe v. Carlisle (57 N. E. Rep.

332), 798.

clxii

TABLE OF CASES CITED.

[refebences are to pages.]

Montecon v. Faures (3 La. Ann.

43), 1068.
j*Tontgomery v. Hamilton County

(76 Ind. 362), 1302.
Montgomery v. Milliken (9 Miss.

495), 53.
Montgomery v. Willis (45 Neb.

434), 141, 176.
Moodle v. Garance (3 Bulst. 153),

541.
Moody V. Cummiskey (9 Pick.

Mass. 104), 679.
Moody V. Garnon (3 Bulst. 153),

541.
Moody V. King (74 Me. 497), 688.
Moody V. Mathews (7 Ves. 183),

20.
Moody V. Vandyke (4 Binn. Pa.

31), 53.
Moody V. Wright (13 Met. Mass.

17), 1427.
Moody's Lessee v. Filmer (3

Grant Cas. Pa. 17), 53.
Mooers v. Wait (3 Wend. N. Y.

104), 685, 717, 1300, 1336.
Moore v. Beasley (3 Ohio, 294),

139, 141, 388, 950.
Moore v. Boyd (24 Me. 243), 214,

216.
Moore v. Chartiers Water Co. (216

Pa. St. 467), 62.
Moore v. Choat (8 Sim. 508), 1107.
Moore v. Faison (97 N. Car. 322),

1439.
Moore v. Fletcher (16 Me. 63),

437.
Moore v. Foley (6 Ves. 232), 1363,

1372, 1374.
Moore v. Fursden (1 Show, 342),

86.
Moore v. Ferguson (2 Munf. Va.

421), 22.
Moore v. Gholson (34 Miss. 372),

105.
Moore v. Goedell (34 N. Y. 527),

838.

Moore v. Goodwin (161 Pa. St.

175), 1144.
Moore v. Grey (2 Ph. 717), 1107.
Moore v. Guardian Trust Com.

(173 Mo. 218), 1046.
Moore v, Harter (67 Ohio St. 250),

143.
Moore v. Lawder (1 Stark. 308),

155.
Moore v. Levert (24 Ala. 310),

870.
Moore v. Mahney (1 Mich. N. P.

143), 1329.
Moore v. Miller (8 Pa. St. 272),

243.
Moore V. Moore (89 N. W. Rep.

629), 1244.
Moore v. Parker (63 Kan. 62),

789, 79L
Moore v. Rawson (3 Bar. & C.

332), 409.
Moore v. Smith (56 N. J. Law,

446), 230, 234.
Moore v. Smith (24 111. 512), 1254,

1293.
Moore v. Steljes (69 Fed. Rep.

518), 831.
Moore v. Titman (44 111. 367), 30.
Moore v. Weber (71 Pa. St. 429),

848, 850, 874, 1157.
Morecraft v. Menx (1 Car. & P.

346), 861.
Morehouse v. Cotheal (22 N. J.

Law, 521), 716.
Moreland v. Myall (14 Bush. Ky.

474), 22.
Moreland v. Strong (115 Mich.

211), 84, 85.
Morey v. Hoyt (62 Conn. 542),

1285.
Moran v. Bergin (111 111. App.

313), 1340.
Morgan v. Blrnle (9 Bing. 672),

909.
Morgan v. Bissell (3 Taunt. 65),

247.

TABLE OF CASES CITED.

clxiii

[references are to pages.]

"Morgan v. Goldberg (9 Misc. Rep.

N. Y. 156), 1380.
Morgan v. Griffiths (23 L. T. 783),

382.
Morgan v. Griffith (40 L. J. Ex.

46), 460.
Morgan v. Moody (6 Watts & S.

Pa. 333), 1443.
Morgan v. Morgan (65 Ga. 493),

1306.
Morgan v. Powell (7 Mann. & G.

989), 64.
Morgan v. Powers (31 N. Y. S.

954), 177.
Morgan v. Slaughter (1 Esp. 8),

365, 607.
Morgan v. Smith (70 N. Y. 537),

1094, 1207, 1208, 1209, 1215.
Morgan v. Yims (97 S. E. Rep.

832), 869.
Moritz V. Miller T87 Ala. 331). 32.
Morrell v. Mackman (24 Mich.

279), 297.
Morris v. Apperson (13 S. W. Rep.

441), 955.
Morris v. Barry (Wils. 1), 80.
Morris v. Dayton (84 N. Y. Supp.

392), 1207.
Morris v. Dayton (86 N. Y. Supp.

172), 1219.
Morris v. De Wolf (11 Tex. Civ.

App. 701), 641.
Morris v. Edington (3 Taunt. 24),

417, 422.
Morris v. Kettle (56 N. J. Eq.

826), 404.
Morris v. Kettle (57 N. J. Law,

218), 1176, 1177, 1180.
Morris v. Manufacturing Co. (83

Ala. 565), 742.
Morris v. McKee (96 Ga. 611),

365.
Morris v. Morris (3 De Gex & J.

323), 726.
Morris v. Niles (12 Abb. Pr. N. Y.
103). 1113.

Morris v. Palmer (44 S. Car. 462),

186, 190, 193.
Morris v. Parker (1 Ashm. Pa.

187), 1084.
Morris v. Summerl (2 Wash. C. C.

203), 1042.
Morris v. Tillson (81 111. 607),

1131, 1136, 1137.
Morris v. Wheat (11 App. D. C.

201), 948, 971.
Morris Canal & Banking Co. v.

Mitchell (31 N. J. Law, 99),

204.
Morrison v. Bassett (26 Minn.

235), 920.
Morrison v. Chadwick (7 C. B.

266), 1179, 1180.
Morrison v. Chicago & N. W. Ry.

Co. (117 Iowa. 587), 687.
Morrison v. Galloway (2 Har. &

J. Md. 461), 601.
Morrison v. Marquardt (24 Iowa,

35), 410.
Morrison v. Rossingnol (5 Cal.

64), 1367, 1373.
Morrison v. Smith (90 Md. 76),

641, 642, 644, 646.
Morrison v. Sohn (90 Mo. App.

76), 1205, 1240.
Morrish, Ex parte (22 Ch. D. 410),

650.
Morrow, Ex parte (17 Fed. Cases,

No. 9,850). 1407.
Morrow v. Brady (12 R. I. 131),

567.
Morrow v. Williams (14 N. C

264), 349.
Morse v. Goddard (13 Met. Mass.

177), 1171, 1182.
Morse v. Merest (6 Madd. 25),

1293.
Mortimer v. Brunner (6 Bosw. N.

Y. 653), 1177.
Mortimer v. Orchard (2 Ves. Jr.

242), 1384.
Morton v. Pinckney (8 Bos. N. Y.
135), 106L

clxiv

TABLE OF CASES CITED,

[references ABE TO PAGES.]

Morton V. Weir (70 N. Y. 247),

1280.
Morton v. Woods (L R. 4 Q. B.

306), 207.
Moser v. Lower (48 Mo. 504), 310.
Moses V. Loomis (156 111. 892),

654, 655.
Mosher v. Yost (33 Barb. N. Y.

277), 47.
Moshier v. Reding (12 Me. 478),

139, 155, 243, 920, 964.
Moskowitz V. Diringen (48 Misc.

Rep. 543), 1240.
Moss Appeal (35 Pa. St. 162), 1441.
Moss V. Barton (35 Beav. 197),

1375, 1377.
Moss V. Gallimore (1 Doug. 269),

29.
Moss Point Lumber Co. v. Harri-
son Co. (89 Miss. 899), 718.
Mostyn (Lord) v. Fitzsimmons

(71 L. J. K. B. 89), 1389.
Mott V. Palmer (1 N. Y. 564),

1259.
Mound V. Barker (71 Vt. 253),

772.
Moule V. Garrett (L. R. 5 Ex. 132),

1021, 1085.
Moulton V. Robinson (27 N. H.

550), 312, 763.
Mcuntnoy v. Collier (1 E. & B.

630), 925.
Mounts V. Goranson (29 Wash.

261), 156.
Mowry v. Providence (16 R. L

422), 71.
Mowry v. AVhite (21 Wis. 421),

1427.
Moyer v. Gordon (113 Ind. 282),
. 690.
Moyer v. Mitchell (53 Md. 171),

848.
Moynihan v. Allyn (162 Mass.

270), 788, 813, 815.
Mudd's Ex'rs v. Reed (11 Ky.

Law Rep. 998), 15.

Muernberger v. Von Der Heldt (33

111. App. 404), 312.
Mugford V. Richardson (6 Allen,

Mass. 76), 1298.
Muhlenbrlnck v. Pooler (40 Hun,

526), 1371, 1373, 1375.
Mulcahy v. Dry Dock Co. (8 Daly,

N. Y. 93), 873.
Mulhaupt V. Enders (38 La. Ann.

744), 1464.
Mulheisen v. Lane (82 111. 117),

1458.
Mull V. Graham (7 Ind. App. 561),

873.
Mullen V. Pugh (16 Ind. App. 337),

1276.
Mullen V. Rainier (45 N. J. Law,

520), 782.
Mullen V. Strieker (19 Ohio St.

135). 409.
Muller V. Brumer (69 111. 108),

15.
Muller V. Kerler (115 La. 783),

852.
Muller V. Minken (5 Misc. Rep.

44), 810.
Mulligan v. Hollingsworth (99

Fed. Rep. 216), 649.
Mumford v. Brown (6 Cow. N. Y.

475), 847, 874.
Mumford v. Walker (71 L. J. K.

B. 19), 751.
Muncey v. Dennis (1 H. & N. 216),

1314.
Munday v. O'Neill (44 Neb. 724),

1325.
Municipality No. 2 v. Curell (13

La. 318), 1023.
Munroe v. Armstrong (179 Mass.

165), 1248. •
Munroe v. Carlisle (176 Mass.

199), 837.
Munroe v. Perkins (9 Pick. Mass.

298), 467.
Munsell v. Carew (2 Cush. Mass..

50), 1427.

TABLE OF CASES CITED.

clxv

[EEFERENCES ABE TO PAGES.]

Munson v. Plummer (59 Iowa,

120), 204, 291.
Munson v. Ray (7 Black. Ind.

403), 243.
Murdock v. Ratcliff (7 Ohio St. 1),

42.
Murphej^ v. Illinois Trust & Sav-
ings Bank (58 Neb. 428), 874.
Murphy v. Century Bldg. Co. (90

Mo. App. 621), 633, 1185.
Murphy v. Hopcraft (142 Cal. 43),

572.
Murphy v. Hubbs (8 Colo. 17),

1301.
Murphy v. Insurance Co. (61 Mo.

App. 323), 1271.
Murphy v. Marshall (179 Pa. St.

516), 675, 1132.
Murphy v. St. Louis Type Foundry

(29 Mo. App. 541), 766.
Murray v. Albertson (50 N. J.

Law, 167), 782.
Murray v. Armstrong (11 Miss.

209), 106, 159.
Murray v. Cazier (23 Ind. App.

600), 534.
Murray v. Cherrington (99 Mass.

229), 191.
Murray v. Emmons (19 N. H. 483),

21.
Murray v. Harway (56 N. Y. 337),

1058.
Murray v. Moross (27 Mich. 203).

1261, 1304.
Murray v. Pennington (3 Grat.

Va. 91), 1173.
Murrell v. Jackson (33 La. Ann.

1342), 731.
Murrell v. Lyon (30 La. Ann.

255), 356.
Musgrave v. Horner (31 L. T.

632), 763.
Mussey v. Holt (24 N. H. 248), 84.
Mussey v. Scott (32 Vt. 82), 237.
Myer Bros.' Assignee v. Gaertner

(21 Ky. L. R. 53), 1091.

Myers v. Bolton (89 Hun, 342),

437.
Myers v. Burns (35 N. Y. 269),

536, 857, 876.
Myers v. Estell (48 Miss. 372),

30, 32.
Myers v. Gemmell (10 Barb. N. Y.

537), 411.
Myers v. Hunt (8 N. Y. St. Rep.

338), 1060.
Myers v. Kingston Coal Co. (126

Pa. St. 582), 373.
Myers v. Merrell (57 Ga. 516),

883, 892.
Myers v. Reade (98 N. Y. Supp.

620), 1012.
Myer v. Roberts (89 Pac. Rep.

1051), 296, 1331.
Myers v. Rosenback (25 N. Y.

Supp. 521), 477.
Myers v. Smith (29 Md. 91), 1461.
Myer v. Whitaker (55 How. Pr.

N. Y. 376), 435.
Myers v. White (1 Rawle, Pa.

355), 31.
Myerson v. Neff (5 Ind. 523), 156.
Myhre v. Schleuder (98 Minn.

234), 865.

N.

Nachbour v. Wiener (34 111. App.

237), 382, 1195.
Nadel v. Fichten (34 App. Div.

188), 806.
Nagel V. League (70 Mo. App.

487), 653. 663.
Naglee v. Ingersoll (7 Pa. St. 185),

1160.
Nahm v. Register (27 Ky. SS7),

802.
Naish V. Tatlock (2 H. Black,

319), 576.
Nail V. Cazenove (4 East, 477),

343.
Nance t. Alexander (49 Ind. 516),

573.

clxvi

TABLE OP CASES CITED.

[eefebences

Nash V. Beckman (83 Ind. 536),

146.
Nash V. Grey (2 P. & F. 391), 545.
Nashville, C. & St. L. Ry. Co. v.

Heikens (112 Tenn. 378), 1340.
Nashville, O. & L. Ry. Co. v. Heik-
ens (79 S. W. Rep. 1038), 683,

705, 721.
Natelson v. Reich (99 N. Y. Supp.

327), 556.
Nation v. Tozer (1 C. M. & R.

172), 576.
National Lumber Co. v. Bowman

(77 Iowa, 706), 1448.
National Mahaiwe Bank v. Hand

(80 Hun, 584), 1042.
National Union Bldg. Ass'n v.

Brewer (41 111. App. 233), 195,

1227.
Naundorf v. Schuman (41 N. J.

Eq. 14), 53.
Nave v. Berry (22 Ala. 382), 730,

892, 1044.
Neal V. Swind or Sweeney (2 C.

& J. 377), 574.
Neale v. Mackenzie (1 M. & W.

747), 1178, 1180.
Neale v. Radcliffe (15 Q. B. 916),

911.
Neale v. Wyllie (5 D. & R. 442),

1080, 1097.
Nedvidek v. Meyer (46 Mo. 600),

561.
Neeb v. McMillan (98 Iowa, 718),

1432.
Needy v. MiddlekaufE (102 Md.

181), 429, 454.
Needham v. Allison (24 N. H.

355), 1333.
Needham Piano Co. v. Hollings-

worth (Tex. 40 S. W. Rep. 750),

1440.
Neeley v. Phillips (70 Ark. 90),

1453.
Neglia v. Lielouka (65 N. Y. Supp.
500), 856.

ABE TO PAGES.]

Neidelet v. Wales (16 Mo. 214),

1340.
Neiderstein v. Cusick (81 N. Y.

Supp. 1058), 1395.
Neifert v. Ames (26 Kan. 515),

1431.
Neill V. Chessen (15 111. App. 266),

491.
Neiner v. Altemeyer (68 Mo. App.

243), 554.
Neiswanger v. Squier (73 Mo.

192), 1269, 1301.
Nellis V. Lathrop (22 Wend. N. Y.

121), 541, 937.
Nelson v. Brown (140 Mo. 580),

388.
Nelson v. Goree's Adm'r (34 Ala.

565), 10.
Nelson y. Thompson (23 Minn.

508), 1198, 1199, 1210.
Nelson v. Ware (57 Kan. 670),

155.
Nelson's Heirs v. Clay's Heirs (1

J. J. Marsh. Ky. 138), 91.
Nesbit V. Godfrey (155 Pa. St.

251), 346, 348.
Nesbitt V. Bartlett (14 Iowa, 485),

1421, 1429.
Nesham v. Selby (41 L. J. Ch.

173), 268.
Nessley v. Ladd (29 Or. 354), 971.
Nestal V. Schmid (39 N. J. Law,

686), 320.
Nestell V. Hewitt (19 Abb. N. C.

282), 279.
Newall V. Wright (3 Mass. 138),

30, 541.
Newberg v. Cowan (62 Miss. 570),

582.
Newby v. Jackson (1 B. & C. 448),

198.
Newby v. Sharpe (8 Ch. Div. 39),

858, 1132.
Newcomb v. Presbrey (9 Met.

Mass. 406), 599.
Newcomb v. Stebbins (99 Mass.
616), 52.

TABLE OF CASES CITED.

clxvii

[references ABE TO PAGES.]

Newcome v. Emery (Ky. 42 S. W.

Rep. 105), 471.
Newell V. Gibbs (1 Watts & S. Pa.

491), 920.
NewhofE V. Mayo (48 N. J. Eq.

619), 963.
Newman v. Anderson (5 Bos. & P.

224), 505.
Newman v. Anderton (2 W. R.

224), 282, 510.
Newman v. Bank (66 Miss. 323),

1411, 1425, 1454.
Newman v. French (45 Hun, N. Y.

65), 877, 867.
Newman v. Keffer (18 Fed. Rep.

695), 90.
Newman v. Mackin (21 Miss. 383),

920, 943.
Newman v. Metropolitan El. R.

Co. (10 N. Y. gt. Rep. 12), 431.
Newman v. Tolmie (SO N. Y. Supp.

990), 454.
Newman v. Tolmie (81 App. Div.

Ill), 1369.
Newman v. Ward (46 S. W. Rep.

868), 1457.
Newmarch v. Brandling (3

Swanst. 99), 110.
Newport Illuminating Co. v. As-
sessors, etc. (19 R. I. 632), 442.
Newron v. Calhoun (68 Tex. 451),

122.
News Co. V. Browne (103 111. 317),

562.
Newstedt v. Scarborough (13 Ohio

Dec. 327), 335.
Newton v. Allin (1 G. & D. 44),

1178.
Newton v. Harland (1 M. & G.

644), 237.
Newton v. Musen (61 N. Y. Supp.

61), 378.
Newton v. Roe (33 Ga. 163), 964.
Newton v. Spearce Laundry Co.

(19 R. I. 546), 1207.
New York v. Kent (5 N. Y. Supp.

567), 72.

New York v. Mason (9 N. Y. St.

Rep. 282), 458.
New York C. & St. L. Ry. Co. v.

Randall (102 Ind. 453), 243.
New York Cent. R. R. Co. v. B. N.

Y. & E. R. R. Co. (49 Barb. N.

Y 501), 447.
New York El. R. Co. v. Manhattan

Ry. Co. (63 How. Pr. N. Y. 14),

70.
New York, etc. Co. v. Randall

(102 Ind. 453), 243.
New York, L. E. & W. R. Co. (8

Ohio Cir. Ct. Rep. 593), 361.
New York Life Ins. & Tr. Co. v.

Rector Ch. (6i How. Pr. Rep.

511), 1387.
New York R. Est. & Bldg. Imp.

Co. V. Motley (143 N. Y. 156),

1356.
New York & T, Land Co. v. Cru-

ger (Tex. 27 S. W. Rep. 212),

564.
New Era Mfg. Co. v. O'Reilly (197

Mo. 466), 1144.
New Hampshire Trust Co. v. Tag-

gart (68 N. H. 557), 1063.
New Ipswich Factory v. Batch-
elder (3 N. H. 190), 439.
New Jersey, etc. Co. v. Van

Syckle (37 N. J. Law, 495), 686.
New Orleans v. Darns (39 La.

Ann. 766), 731.
New Orleans v. Guillotte (14 La.

Ann. 875), 61.
Niagara Fire Insurance Co. v.

Bishop (154 111. 9), 572.
Nicholas v. Chamberlain (Cro.

Jac. 131), 446.
Nicholes v. Smith (118 Ga. 922),

195.
Nicholes v. Swift (118 Ga. 922),

523.
Nicholl V. McKaeg (10 B. & Cr.

721), 186.
Nicholls V. Atherstone (10 Q. B.

944), 1213.

clxviii

TABLE OP CASES CITED,

[references are to pages.]

Nicholls V. Barnes (32 Neb. 195),

194, 1405.
Nicholls V. Barnes (39 Neb. 103),

328.
Nicholls V. Byrne (11 La. O. S.

170), 1165.
Nichols V. Dusenbury (2 N. Y.

283), 563, 878.
Nichols V. Luce (24 Pick. Mass.

102), 439.
Nichols V. Sargent (125 111. 309),

17.
Nichols V. Williams (8 Cow. N. Y.

137), 204.
Nicholson v. Smith (52 L. J. Ch.

191), 1382.
Nicoll V. Burke (78 N. Y. 581),

555, 857.
Nicoll V. New York Cent. R. R.

Co. (12 N. Y. 121). 61.
ISTickells v. Atherstone (10 Q. B.

944), 1199.
Nicrosi v. Phillippi (91 Ala. 299),

928, 938.
Nieland v. Mahnken (85 N. Y. S.

809), 1287.
Nigro V. Hatch (11 Pac. Rep. 177),

1249.
Niles V. Gonzales (82 Pac. Rep.

212), 940.
Nimo V. Harway (50 N. Y. Supp.

686), 1347.
Nimmo v. Harway (23 Misc. Rep.

126), 852.
Nindle v. Bank (13 Neb. 245), 356.
Nitroglycerine Case (15 Wall. U.

S. 524), 709, 73L
Nixon V. Quinn (Ir. R. 2 C. L.

247), 579.
Noble V. Becker (3 Brewster, Pa.

550), 1051.
Noble V. Tyler (61 Ohio St. 432), 5.
Nobles V. McCarty (61 Mi.ss. 456),

277, 320, 1436.
Nodine v. Richmond (Oreg. 1906,
87 Pac. Rep. 775), 954.

Noe V. Hodges (22 Tenn. 162),

326.
Noe V. Layton (89 S. W. Rep.

1065), 1451.
Noel V. Herman Bencke Lith. Co.

(134 N. Y. 617), 1037.
Noel V. McCrary (7 Coldw. Tenn.

623), 140.
Noke V. Awder "(Cro. Eliz. 373),

618.
Nokes V. Gibbons (3 Derw. 68),

667. 1038.
Nonotuck Silk Co. v. Shay (37

111. App. 542), 1154, 1155, 1344.
Noonan v. Orton (31 Wis. 265),

617.
Noonan v. Orton (27 Wis. 300),

617.
Noonan v. Orton (21 Wis. 283),

617.
Norcross v. Norcross (105 Mass.

265), 28.
Norfleet v. Cromwell (64 N. C.

1),915.
Norman v. Wells (17 Wend. N. Y.

136), 615, 616.
Norris v. Morrill (43 N. H. 213),

178, 635.
North American Tr. Co. v. Bur-
row (68 Ark. 584), 35.
North Chicago S. R. Co. v. Le

Grand Co. (95 111. App. 435),

377. 646. 663, 1102, 1391.
North Haverhill Water Co. v. Met-

calf (63 N. H. 427), 575.
Northeastern F. Ins. Co. v. Schet-

ter (38 111. 166), 65.
Northern Trust Co. v. Snyder (76

Fed. Rep. 34), 1041.
Northern Cent. Ry. Co. v. Bastian

(15 Md. 494), 65.
Northness v. Ilillstead (87 Minn.

304), 315.
Northwestern Gas Co. v. Tiffin (59

Ohio St. 420), 393, 1111.
Norton v. Gale (95 111. 533), 383.

569. 1272.

TABLE OF CASES CITED.

cLxix

[references are to pages. 7

Norton v. Herron (1 Car. & P.

648), 105.
Norton v. Sanders (1 Dana, Ky.

14), 953.
Norton v. Snyder (2 Hun, N. Y.

82), 1392.
Norton v. Vultee (1 N. Y. Super.

Ct. Rep. 427), 560.
Norton v. Webster (12 Ad. & El.

442), 465.
Norway v. Rowe (19 Ves. 144),

723, 1278.
Norwood V. Byrd (1 Rich. S. C.

135), 462.
Norwood V. Kirby (70 Ala. 397),

964.
Noyaille v. Flight (7 Beav. 521),

892.
Noyes v. Longhead (9 Wash. 325),

286, 347.
Noyes v. Stillman (24 Conn. 15),

679, 683, 689.
Nugent V. Riley (1 Met. Mass.

117), 280.
Nunn V. Fabian (35 L. J. Ch. 140),

389.1384.
Nute V. Hamilton Ins. Co. (6 Gray,

Mass. 182), 572.
Nye V. Patterson (35 Mich. 413),

1324.
Nyquist v. Martin (35 111. App.

623), 261.

Oakes v. Aldridge (46 Mo. App.

11), 33, 501, 976.
Oakes v. Oakes (16 111. 106), 519,

573.
Oakford v. Nirdlinger (196 Pa. St.

162), 289.
Oakford v. Nixon (177 Pa. St. 76).

1129,1157.
Oakley v. Monck (3 H. & C. 706),

7,141.
Oakley v. Stanley (5 Wend. N. Y.

523), 446.

Oastler v. Henderson (46 L. J. Q.

B. 607), 1207.
Oates V. Frithe (2 Rolle's Abr.

447), 529.
Ober V. Brooks (162 Mass. 102),

630,999.
Obermeyer v. Nichols (6 Binn. Pa.

159), 601, 867.
O'Brien v. Capwell (59 Barb. N.

Y. 497), 782.
O'Brien v. Cavanaugh (61 Mich.

368), 689.
O'Brien v. Greenbaum (4 N. Y.

Supp. 852), 826.
O'Brien v. Smith (59 Hun, 624),

331, 674, 691, 1183, 1190.
O'Brien v. Troxel (76 Iowa, 760),

146.
Ocean Grove C. M. Ass'n v. San-
ders (54 Atl. Rep. 448), 505,

632.
Ocean Grove Land Ass'n v. Bert-
hall (62 N. J. Law, 88), 645.
Ocean S. S. Co. v. Hamilton (112

Ga. 901), 847.
O'Connell v. McGrath (14 Allen,

Mass. 289), 770.
O'Connor v. Andrews (31 Tex.

28), 800, 807.
O'Connor v. Delaney (53 Minn.

247), 83.
O'Connor v. IMemphis (7 Lea,

Tenn. 219), 699.
O'Connor v. O'Connor (19 W. R.

90), 541.
O'Connor v. Schnepel (33 X. Y.

Supp. 562). 865.
Odd Fellows' Sav. Bank v. Ban-
ton (46 Cal. 603), 390.
Odell v. Durant (62 N. Y. 524),

119, 120.
Odell V. Solomon (99 N. Y. 635),

859.
O'Donnell v. Hitchcock (118 Mass.

401), 1253.
O'Donnell v. Mclntyre (US N. Y.

156),4S4.v

clxx

TABLE OP CASES CITED.

[reierences are to pages.]

O'Donnell v. Rosenthal (110 111.

App. 225), 830.
O'Dougherty v. Felt (65 Barb. N.

Y. 220), 28.
O'Dwyer v. O'Brien (13 App. Div.

570), 802.
Oehme v. Shotland (90 N. Y. Supp.

958), 753.
Oetgen v. Ross (47 111. 142), 975.
Oettinger v. Levy (4 E. D. Smith,

N. Y. 288), 856.
Offterdinger v. Ford (92 Va. 636),

1465.
Ofschlager v. Sinbeck (50 N. Y.

Supp. 862), 302.
Ogden V. Gety (91 N. Y. Supp.

664), 1014.
Ogden V. Hater (145 Pa. St. 640),

641, 643, 644.
Ogden V. Jennings (66 Barb. N.

Y. 301). 442, 446.
Ogden V. Rowe (3 E. D. Smith,

N. Y. 312), 595.
Ogden V. Sanderson (3 E. D. S.

N. Y. 166), 1130, 1177.
Ogden V. Smith (2 Paige Ch. N. Y.

195), 55.
Ogilvie V. Hall (5 Hill, N. Y. 84),

1167.
Ogilvie V. Foljambe (17 R. R. 13),

386,387.
Ogle V. Hubbel (1 Cal. App. 375),

1003.
O'Gorman v. Harby (18 Misc.

Rep. 228), 1143.
O'Hara v. Jones (46 111. 288), 1083.
Ohio V. Shutt (78 Tex. 375), 1439.
Ohio Oil Co. V. Kelley (6 Ohio Ct.

Dec. 470), 454.
Ohl V. May (5 Neb. 157), 391.
Oil Co. V. Wilson (142 U. S. 313),

1122.
O'Keefe v. Kennedy (3 Cush.

Mass. 325), 644, 1057.
O'Kelly V. Ferguson (49 La. Ann.

1230), 1454.

Okie V. Person (33 App. D. C-

170), 1180, 1238.
Okolona Sav. Inst. v. Trice (60

Miss. 202), 1441.
Oland V. Burdwick (Cro. Eliz.

461), 1310.
Oloott V. Frazier (5 Hill, N. Y.

562), 1444.
Oloott V. Rathbone (5 Wend. N.

Y. 490), 547.
Olden V. Sassman (67 N. J. Eq.

239), 1120, 1383, 1384, 1389.
Oldewurtel v. Wiesenfeld (97 Md.

165), 1214, 1236.
O'Leary v. Delaney (63 Me. 584),

847.
Olin v. Rhoads (61 N. Y. Supp.

817), 839.
Oliphant v. Richman (67 N. J. Eq.

286), 436.
Oliver v. Dickinson (100 Mass.

114), 431.
Oliver v. Gary (42 Kan. 623), 944.
Oliver v. Hook (47 Md. 301), 445,

446.
Oliver v. Moore (12 Heisk. Tenn.

482), 1445.
Oliver v. Moore (53 Hun, 472)^

283.
Oliver v. Olmstead (112 Mich.

483), 436.
Olmstead v. Dauphiny (104 Cal.

635), 562.
Olsen V. Ausdal (13 S. D. 23), 315.
Olson V. Schevlovitz (86 N. T.

Supp. 834), 1155, 1176.
Olson V. Schultz (67 Minn. 494),

871.
Olson V. Upsahl (69 Til. 273), 863.
Ombony v. Jones (19 N. Y. 234),

1244, 1264, 1269.
Onderdonk v. Gray (19 N. J. Eq.

65), 30.
Oneal v. Orr (5 Bush. Ky. 649),

1278.
O'Neil V. Flanagan (2 Mo. App.

Rep. 884), 1340, 1354.

TABLE OF CASES CITED.

clxxi

[REFERE^-CES ARE TO PAGES.]

O'Neill V. Manget (44 Mo. App.

279), 1140, 1142.
O'Neill V. Morris (28 Misc. Rep.

613), 34.
Oneto V. Restano (89 Cal. 63),

348.
Onslow V. Carrie (2 Madd. 330),

518.
Oppenheimer v. Clunie (142 Cal.

313), 469.
Oriental Investment Co. v. Bar-
clay (Tex. Civ. App. 64 b. W.

Rep. 80), 932.
Orleans Theatre Co. v. Lafferan-

diere (12 Rob. La. 472), 1182.
Ormer v. Harley (102 Iowa, 150),

83.
Ormond v. Anderson (2 Ball & B.

370), 982.
Orne, In re (12 Fed. Rep. 779),

1121.
Orphan Asylum Society v. Water-
bury (8 Daly, N. Y. 35), 453.
Orrell v. Bay Mfg. Co. (Miss. 40

So. Rep. 429), 113.
Orthwein v. Thomas (13 N. E.

Rep. 564), 975.
Orton V. Noonan (27 "Wis. 272),

1363, 1373.
Osborne v. Butcher (26 N. J. Law,

308), 439.
Osborn v. Carden (Plowd. 293),

12.
Osborn v. Etheridge (13 Wend. N.

Y. 339), 877.
Osborn v. Nicholson (13 Wall. U.

S. 657), 700.
Osborn v. Wise (7 C. & P. 761),

110.
Osgood V. Dewey (13 Johns. N. Y.

240), 561, 950, 951.
Osgood V. Howard (6 Me. 452),

1244.
Oshinsky v. Greenberg (39 Misc.

Rep. 342), 1205.
O'Sillivan v. Norwood (8 N. Y. St.

Rep. 3S8), 814.

1

Osmers v. Furey (32 Mont. 581),

1157.
Ostner v. Lynn (57 Mo. App. 187),

522.
Ostrander v. Livingston (3 Barb.

Ch. N. Y. 416), 999.
Oswald V. Fratenburgh (36 Minn.

270), 1094.
Oswald V. Gilbert (11 Johns. N.

Y. 443), 1024.
Oswald V. Godbold (20 Ala. 811),

560.
Otis, In re (101 N. Y. 580), 1123.
Otis V. McMillan (70 Ala. 46),

485, 491, 934, 1195, 1228, 1231.
Otis V. Northrop (2 Miles, Pa.

350), 1274.
Otis V. Sill (8 Barb. N. Y. 162),

1427.
Ottens V. Fred Krug Brew. Co. (58

Neb. 331), 550.
Ottinger v. New York Elevated

Co. (60 Hun, 5^3), 680.
Otto V. Kreiter (110 Pa. St. 370),

438.
Ottumwa Woolen Mill Co. v. Haw-
ley (44 Iowa, 57), 442, 1244.
Outhwaite v. Luntley (4 Camp.

179), 343.
Outtoun V. Dulin (72 Md. 536),

939.
Overbach v. Heermance (Hopk.

Ch. N. Y. 337), 15.
Overby v. Overby (18 La. Ann.

546). 100.
Overdeen v. Lewis "(1 Watts. & S.

Pa. 90). 201.
Overmann v. Sasser (107 N. C.

432). 1250.
Overton v. Alpha (13 La. Ann.

558), 1274.
Overton v. Matthews (35 Ark.

147). 343.
Owen v. Brookport (208 111. 35),

943.
Owen V. Herzikoff (84 Pac. Rep.

274), 538.

cLxxii

TABLE OF CASES CITED.

[referexces are to pages.]

Owen V. Iglanor (4 Cold. Tenn.

15), 1445.
Owens V. Cowan (7 B. Mon. Ky.

152), 53.
Owens V. Lewis (46 Ind. 488),

1306.
Owens V. Shovlen (116 Pa. St.

371), 1444.
Owens V. Wight (18 Fed. Rep.

865), 697.
Owings V. Emery (6 Gill. Md.

260), 710.
Owings V. Jones T9 Md. 108), 825.
Oxford V. Ford (67 Ga. 362), 319.
Oxford Corporation v. Crow (3

Ch. 535), 259.
Oxley V. James (13 Mee. & W. 209),

129

Pabst V. Rochester L.aunary Co.

(171 N. Y. 584), 1080.
Pabst Brewing Co. v. Thorley (127

Fed. Rep. 439), 700.
Pace V. Goodson (56 S. E. Rep.

363), 515.
Pacific Coast S. S. Co. v. Kimball

(114 Cal. 414), 72.
Pacific Express Co. v. Haven (41

La. Ann. 811), 697.
Packard v. Chicago Title & Trust

Co. (67 111. App. 598), 1409.
Packard v. Cleveland, etc. Co. (46

111. App. 244), 195, 197, 223.
Packard v. Corporation of Prot.

Ch. (77 Md. 240), 277.
Packer v. Cockayne (3 G. Greene,

Iowa, 111), 554, 1222.
Packington's Case (3 Atk. 215),

711.
Padalford v. Padalford (7 Pick.

Mass. 152), 716.
Page V. Culver (55 Mo. App. 606),

491, 1111, 1112.
Page v. Esty (54 Me. 319), 490,

1373.

Page V. Hughes (2 B. Mon. Ky.

439), 990, 1382.
Page v. Kinsman (43 N. H. 328),

923.
Page V. Lashley (15 Ind. 152),

491.
Page V. Mann (6 L. J. O. S. K. B.

63), 1213, 1214.
Page V. McGlinch (63 Me. 472),

258.
Page V. Street (Speers, S. C. Eq.

159), 303.
Paget V. Gee (Ambl. 198), 539.
Paige V. Perno (10 Vt. 491), 549.
Paige V. Scott's Heirs (12 La.

490), 258.
Paige V. Wright (14 Allen, Mass.

182), 206.
Paine v. Mason (7 Ohio St. 198),

1108.
Paine v. McDowell (71 Vt. 28),

1297.
Paine v. Rector (7 Hun, N. Y. 89),

1276.
Paine v. Sykes (72 Miss. 351),

1083.
Palethorp v. Bergner (52 Pa. St.

149), 897.
Palethorpe v. Home Brewery,

Lim. (75 L. J. K. B. 55), 752.
Palmer v. Cheseboro (55 Conn.

114), 14.
Palmer v. City Livery Co. (98

Wis. 33), 652.
Palmer v. Elkins (2 Ld. Rayd.

1550), 953.
Palmer v. Fletcher (1 Lev. 132),

409.
Palmer v. Ford (70 111. 269), 665.
Palmer v. Marquette, etc. Co. (32

Mich. 274), 386.
Palmer v. Myers (79 111. App.

409), 1213.
Palmer v. Nelson (76 Ga. 803),

938.
Palmer v. Palmer (13 Gray, Mass.

326), 52. '

TABLE OF CASES CITED.

clxxiii

[beferexces are to pages.]

Palmer v. Sanders (49 Fed. Rep.

144), 461.
Palmer v. Steiner (68 Ala. 400),

.53, 54.
Palmer v. Wetmore (2 Sandf. N.

Y. 316), 411, 1140, 1160.
Palmer v. Young (108 111. App.

252), 672, 723.
Pamphere v. Lowe (3 Neb. 131),

1434.
Panton v. Isham (1 Salk. 19),

223.
Panton v. Jones (3 Camp. 372),

578.
Pappe V. Trout (3 Okl. J60), 152.
Paradine v. Jane (Aleyn, 27), 882.
Parish v. Rogers (20 App. Div.

279), 119.
Parish v. Stryker (41 N. Y. 480),

120.
Parish v. Vance (110 111. App. 50),

442,426.
Parker v. Brown (136 N. C. 280),

311,315.
Parker v. Gibbins (1 Q. B. 421),

1344.
Parker v. Hale (78 S. W. Rep.

555), 315.
Parker v. Mollis (50 Ala. 411),

378.
Parker v. McLaughlin (1 Jr. L. R.
. N. S. 186), 941.
Parker v. Meadows (86 Tenn.

181), 869, 880.
Parker v. Mott (43 App. Div. 338),

312,314.
Parker v. Raymond (14 Mo. 535),

723.
Parker v. Shackelford (61 Mo.

68), 680.
Parker v. Taswell (2 De G. & J.

559), 332.
Parker v. Whyte (1 H. & M. 167),

740, 758, 767.
Parker v. Winslow (7 El. & B.

492), 105.

Parker v. Wulstein (48 N. J. Eq.

94), 1281.
Parker's Appeal (5 Pa. St. 390),

1444.
Parkhurst v. Van Cortlandt (14

.Johns. N. Y. 15), 386.
Parkman v. Aicardi (34 Ala. 393),

757.
Parks V. City of Boston (15 Pick.

Mass. 198), 681.
Parks V. Hays (92 Tenn. 161),

634.
Parks V. Simpson (124 Ga. 523),

1420.
Parrot v. Anderson (7 Exch. 93),

548.
Parrott v. Barney (Fed. Gas. No.

10,773), 709, 721.
Parrott v. Hungelburger (9 Mont.

52H). 924, 942.
Parry v. Harbett (Dyer, 45b),

1054.
Parry v. Hodgson (2 Wils. 129),

13.
Parsell v. Stryker (41 N. Y. 480),

503.
Parsons v. Johnson (68 N. Y. 62),

445.
Partington v. Woodcock (5 Nev,

& Man. 672), 31.
Parton v. Smith f66 Iowa, 75),

321.
Pascieszeuy v. Boydell (146 Mich.

223), 820.
Pastor V. Jones (3 N. C. 215), 884.
Patchin's Ex'rs v. Dickerson (31

Vt. 666), 1238.
Pate V. Oliver (104 N. C. 458),

1234.
Pate V. Turner (94 N. C. 47), 922.
Patten v. Deshon (1 Gray, Mass.

325), 494, 1021, 1049, 1085.
Patterson v. Ackerson (1 Edw.

Ch. N. Y. 96), 892, 1340, 1345.
Patterson v. Emerick (21 Ind.

App. 614), 1215.

clxxiv

TABLE OF CASES CITED.

[references are to pages.]

Patterson v. Graham (140 111.

531), 403, 416, 442, 1129, 1130.
Patterson v. Hansel (4 Bush, Ky.

654), 965.
Patterson v. Pease (5 Ohio, 190),

333.
Patterson v. O'Hara (2 E. D.

Smith, N. Y. 58), 463, 550.
Patterson v. Stoddard (47 Me.

355), 198, 199, 319, 561.
Pattison v. Hull (9 Cow. N. Y.

747), 336.
Paul V. Chickering (117 Mass.

265), 1020.
Pauley v. Steam Gauge Co. (131

N. Y. 90), 915.
Pawley v. Walker (5 T. R. 373),

760.
Paxson V. Potter (30 Pa. Super.

Ct. 615), 1342.
Paxton V. Kennedy (70 Miss. 865),

1414.
Paxton V. Meyer (58 Miss. 445),

1439.
Payne v. Burridge (13 L. J. Ex.

119), 1028.
Payne v. Haine (16 M. & W. 541),

889, 893.
Payne v. Harris (3 Strobh. Eq. S.

C. 39), 42.
Payne v. Irvin (144 111. 482), 810.
Payne v. James (45 La. Ann. 381),

878, 1359.
Payne v. Still (10 Wash. 433), 28.
Payton v. Sherburne (15 R. I.

215), 219, 233.
Payton v. Stath (Pet. U. S. 485),

182.
Peacock v. Dickenson (2 Car. & P.

51), 538.
Peacock v. Ruffun (6 Esp. 4), 159.
Peale's Adm'r v. Thurman (77 Va.

753), 15.
Pearce v. Cheslyn (5 N. & M. {\r>2),

257.
Pearce v. Golden (8 Barb. N. Y.

522), 1276.

Pearce v. Nix (34 Ala. 183), 924.
Pearce v. Pearce (184 111. 289),

315.
Pearce v. Shard (6 L. J. O. S. K.

B. 354), 1097.
Pearce v. Turner (150 111. 116),

1374.
Pearcy v. Henley (82 Ind. 129),

24.
Pearse v. Boultor (2 F. & P. 133),

175.
Pearson v. Davis (41 Neb. 608),

333.
Pearson v. Friedensville Zinc Co.

(1 Pa. Ct. Ct. Rep. 660), 1331.
Pearson v, Sanderson (128 111.

88), 1272.
Pease v. Christ (31 N. Y. 141),

1089.
Pease v. Coats (12 Jur. N. S. 684),

749.
Peck V. Christman (94 111. App.

435), 1020.
Peck V. Hiller (31 Barb. N. Y.

117), 1132, 1138.
Peck V. Ingersoll (7 N. Y. 528),

544,1205.
Peck V. Knickerbocker Ice Co. (18

Hun, 183), 34, 1222.
Peck V. Ledwidge (25 111. 109),

1340.
Peck V. Lloyd (38 Conn. 566), 445.
Peck V. Northrop (17 Conn. 217),

491, 499, 1112.
Peck V. Scoville (43 111. App. 360),

903.
Peck V. Ward (18 Pa. St. 5061,24.
Pedderick v. Searle (5 S. & R. Pa.

236), 951.
Peddicord v. Berk (74 Kan. 236),

95.
Peehl V. Bumtialek (99 Wis. 62),

158, 162, 172.
Peer v. O'Leary (28 N. Y. S. 687),

216,219.
Peer v. Wadsworth (67 N. J. Eq.

191),712, 756, 1098.

TABLE OF CASES CITED.

clxxv

[befekences

Peers v. Sneyd (17 Beav. 151), 97.
Pegg V. Wisden (16 Beav. 243),

978.
Peil V. Reinhart (127 N. Y. 381),

814, 817.
Pelan v. De Bevard (13 Iowa, 53),

1283.
Pelican Co., In re (47 La. Ann.

935), 341.
Pellew V. Wonford (9 Barn. &

Cress. 134), 348.
Pelton V. Draper (61 Vt. 364), 313.
Pelton V. Place (71 Vt. 430), 1213.
Pemberton v. King (2 Dev. N. C.

376), 1250.
Pence v. St. Paul, M. & M. R. Co.

(28 Minn. 488), 1050.
Pence v. Williams (14 Ind. App.

86), 922.
Pendill v. Fells "(67 Mich. 657),

496. 1113, 1141.
Pendill v. Maas (97 Mich. 215),

454,1408.
Pendill v. Neuberger (67 Mich.

562), 345.
Pendill v. Union Mining Co. (64

Mich. 172), 554, 634.
Penfold V. Abbott (32 L. J. Q. B.

67), 6, 1171.
Pengra v. Munz (29 Fed. Rep.

830), 921.
Penn v. Brashear (65 Mo. App.

24), 361.
Penn v. Kearney (21 La. Ann.

23), 1346, 134^7.
Penn v. Preston (2 Rawle, Pa. 14),

602.
Pennant's Case (3 Coke, 64), 639.
Pennewell, In re (119 Fed. Rep.

139), 623, 1055.
Penniall v. Harborne (11 Q. B.

368), 1038.
Pennington v. Baehr (48 Cal.

565), 826.
Pennington v. Taniere (12 Q. B.

998), 8, 147.

AKE TO PAGES.]

I Pennoch v. Coe 123 How. U. S.

117), 1428.
I Pennock v. Lyons (118 Mass. 92),

645, 1059.
Pennoyer v. Neff (95 U. S. 714),

1401.
Pennsylvania Iron Co. v. Deller

(113 Pa. St. 635), 294.
Pennsylvania R. R. Co. v. St.

Louis, A. & T. H. R. R. Co. (118

U. S. 290), 71.
Penruddock v. Newman (1 Leon,

279), 1197.
Penton v. Barnett (67 L. J. Q. B.

11), 662.
Penton v. Hobart (2 East, 88),

1260, 1265, 1269.
Pentz V. Keuster (41 Mo. 447),

934.
People V. Annis (45 Barb. N. Y.

304), 303, 307.
People V. Ainslie (76 N. Y. 574),

927.
People V. Darling (47 N. Y. 666),

159.
People V. Erwin (4 Denio, N. Y.

126), 778.
People V. Freeman (110 App. Div.

605), 658.
People V. Gillis (24 Wend. N. Y.

201), 246.
People V. Haskins (7 Wend. N. Y.

43), 507.
People V. Kelsey (38 Barb. N. Y.

269), 245.
People V. Kerrains (60 N. Y. 221),

305.
People V. C. & N. W. R. Co. (57

111. 436), 449.
People V. National Tr. Co. (82 N.

Y. 283), 70.
People V. O'Melia (67 Hun, 653),

778.
People V. Robertson (Barb. N. Y.

9), 356.
People V. St. Nicholas Bank (3

App. Div. 544), 244, 246.

clxxvi

TABLE OF CASES CITED.

[references are to pages.]

People's St. Ry. Co. v. Spencer

(156 Pa. St. 85), 1000.
People's Loan & Building Ass'n v.

Whitmore (75 Me. 117), 927.
Pepper v. Rowley (73 111. 262),

563,1183.
Pepper's Adm'r v. Harper (20 Ky.

Law Rep. 837), 329.
Peralta v. Ginochio (47 Cal. 459),

923.
Pere Marquette R. Co. v. Wabash
R. Co. (104 N. W. Rep. 650),
454.
Perez v. Rabaud (76 Tex. 191),

848.
Perkerson v. Snodgrass (85 Ala.

137), 491.
Perkins v. Carr (44 N. H. 118),

1331.
Perkins v. Giles (50 N. Y. 228),

571.
Perkins v. Governor (Minor, Ala.

352), 938.
Perkins v. Hadsell (50 111. 216),

981.
Perkins v. Perkins (5 Atl. Rep.

373), 189. 190.
Perkins v. Perkins (Cro. Eliz.

269), 1194.
Perkins v. Potts (52 Neb. 110),

484, 922, 964.
Perkins v. Swank (43 Miss. 349),

1250, 1260.
Perkins v. Washington Ins. Co. (4

Cow. N. Y. 645), 1042.
Perniciaro v. Veniero (90 N. Y.

Supp. 369), 1180.
Perrett v. Dupre (3 Rob. La. 52),

875.
Perrin v. Repper (34 Mich. 292),

1112.
Perrin & Smith Printing Co. v.
Cook, etc. Co. (93 S. W. Rep.
337), 1123.
Perring v. Brooke (1 Mood. & Ry.
510), 251.

Perrott v. Shearer (17 Mich. 48),

771.
Perry v. Bailey (94 Me. 50), 679,

680.
Perry v. Davis (3 C. B. N. S. 769),

658.
Perry v. Hamilton (138 Ind. 271),

1317.
Perry v. Perry (127 N. C. 23),

1435.
Perry v. Rockland & R. Lime Co.

(94 Me. 325), 1377, 138L
Perry v. Waggoner (68 Iowa, 403),

1421,1434.
Perry v. Wall (68 Ga. 70), 1130.
Pesant v. Heartt (23 La. Ann.

292), 852.
Peter v. Kendall (6 B. & C. 703),

110,1208.
Peters v. Barnes (16 Ind. 210),

1193.
Peters v. Blake (170 111. 304), 216.
Peters v. Elkins (14 Ohio, 344),

31,288.
Peters v. Grubb (21 Pa. St. 455),

438, 442.
Peters v. Newkirk (6 Cow. N. Y.

103), 1199.
Peters -v. Stone (193 Mass. 179),

1282.1283.
Peterson v. Edmonson (5 Har.

Del. 378), 1155, 1340.
Peterson v. Kinkead (92 Cal. 372),

938.
Peterson v. Smart (70 Mo. 38),

913.
Peticolas v. Thomas (9 Tex. Civ.

App. 442), 856.
Petre v. Ferrers (61 Law J. Ch.

426), 1299.
Petrie v. Wright (14 Miss. 647),

65.
Petsch V. Biggs (31 Minn. 392),

172.
Pettee v. Hawes (13 Pick. Mass.
323), 438.

TABLE OF CASES CITED.

clxxvii

[REI EKKXCES ARE TO PAGES.]

Pettengill v. Evans (5 N. H. 54),

212,222.
Petterson v. Sweet (13 111. App.

255), 924.
Pettibone v. Moore (73 Hun, 461),

253.
Pettibone v. Smith (150 Pa. St.

US), 1023.
Pettigrew v. Mills (36 Kan. 745,

147), 920.
Petty V. Kennon (49 Ga. 468), 195.
Petty V. Maier (10 B. Mon. Ky.

591), 234.
Pettygrove v. Rothschild (2 Wash.

St. 6), 647.
Petz V. Voight Brewing Co. (116

Mich. 418), 873.
Pevey v. Skinner (116 Mass. 129),

413.
Pewaukee Milling Co. v. Howitt

(86 Wis. 270), 295, 1302.
Peyton v. Stith (5 Pet. U. S. 484),

953,958.970.
Pfanner v. Sturmer (40 How. Pr.

N. Y. 401), 191, 1306.
Phalen v. Dinger (4 E. D. Smith,

N. Y. 379), 592.
Pharis v. Jones (122 Mo. 125),

958.
Phelan v. Boylan (25 Wis. 679),

712.
Phelan v. Fitzpatrick (74 N. E.

Rep. 326), 835, 847.
Phelan v. Tedcastle (15 L. R. Ir.

169), 259, 387.
Phelps V. City of New York (61

Hun, 521), 1369.
Phelps V. Randolph (147 111. 335),

690.
Phelps V. Taylor (23 La. Ann.

585), 958.
Phene v. Popplewell (12 C. B. N.

S. 334), 1207.
Philadelphia v. Reeves (48 Pa. St.

472). 609.
Philadelphia, etc. Co. v. Baltimore

City (50 Md. 397), 1019.

Phillbrook v. Emswiler (92 Ind.

590), 458.
Phillips V. Aurora Lodge, I. O.

G. T. (87 Ind. 505), 62.
Philips V. Butler (2 Esp. 589),

172.
Phillips T. Burrows (2 Mo. App.

Rep. 1001), 1096, 1423.
Phillips V. Castley (40 Ala. 486),

462.
Phillips V. Covert (7 Johns. N. Y.

1),222.
Phillips V. Eastern Railway (138

Mass. 122), 61.
Phillips V. Everard (5 Sim. 102),

1395.
Phillips V. Fearnside (4 Hayw.

Tenn. 158), 196.
Phillips & Butorff Mfg. Co. v. Whit-
ney (109 Ala. 645), 66.
Phillips V. Library Co. (55 N. J.

Law, 307), 836, 816.
Phillips V. Maxwell (1 Baxt.

Tenn. 25), 1430.
Phillips V. Monges (4 Whart. Pa.

226), 140, 564, 855.
Phillips V. Mosely (1 Car. & P.

262), 511.
Phillips V. Rathwell (4 Bibb. Ky.

33), 945.
Phillips V. Robertson (65 Hayw.

Tenn. 101), 922.
Phillips V. Smith (14 M. & W.

590), 710.
Phillips V. Stevens (16 Mass. 238),

882, 892, 1346, 1351.
Phillips V. Tucker (3 Ind. 132),

621, 638, 665, 1322.
Phillips V. Vandergrift (146 Pa.

St. 347), 641.
Philpot V. Hoare (2 Atk. 219),

1067.
Phinney v. Foster (189 Mass.

182), 1008.
Phipps V. Ingraham (41 Miss.

256), 384.

clxxviii

TABLE OP CASES CITED.

[references are to pages.]

Phipps V. ScultKorpe (1 B. & Aid.

50), 188, 576, 578.
Phoenixville v. Walters (147 Pa.

St. 501), 172.
Phyfe V. Warden (5 Paige, N. Y.

279), 1104.
Pickens v. Bozell (11 Ind. 275),

5G3.
Pickens v. Reed (1 Swan. Tenn.

86), 1316.
Pickens v. Webster (31 La. Ann.

870), 1318.
Pickerel v. Carson (8 Iowa, 544),

1243.
Pickering v. Moore (67 N. H. 532),

1333.
Pickering v. O'Brien (23 Pa. Supr.

Rep. 125), 213.
Pickering v. Pickering (11 N. H.

141), 90.
Pickett V. Ferguson (45 Ark. 177),

697,1139.
Pickle V. Byers (16 Ind. 383),

798.
Pidgeon v. Richards (4 Ind. 374),

191.
. Pier V. Carr (6'9 Pa. St. 326),

1207, 1208.
Pierce v. Brown (24 Vt. 165),

1228.
Pierce v. Cleland (133 Pa. St.

189), 424.
Pierce v. Hedden (105 La. 294),

789.
Pierce v. Joklersma (91 Mich.

463), 876, 1151.
Pierce v. Minturn (1 Cal. 470),

337.
Pierce v. Richardson (37 N. H.

306), 342.
Pierce v. Rollins (60 Mo. A pp.

497), 484.
Pierce v. Scott T4 W. & S. Pa.

344), 1443.
Pierce v. Sellick (18 C. B. 321).
446.

Pierce v. Shaw (2 M. & R. 418),

140.
Pierce Cequin Co. v. Meadows (86

S. W. Rep. 1127), 1044.
Pierson v. Hughes (102 N. Y.

Supp. 528), 536.
Pierson v. Hughes (78 N. Y. Supp.

223), 1378.
Plgot V. Garnish (Cro. Eliz. 678),

10.
Piggot V. Mason (1 Paige, N. Y.

412), 570, 616, 1363.
Piggott V. Stratton (1 De G., F.

& .L 33), 1098.
Pike V. Brown (7 Cush. Mass.

133), 519.
Pike V. Eyre (9 B. & Cr. 909), 128,

953.
Pike V. Leiter (26 111. App. 530),

349.
Pilgrim v. Beck (69 Fed. Rep.

895), 40.
Pilkington v. Peach (2 Show.

135), 41.
Pilkington v. Shaller (2 Vern.

374), 1106.
Pilling V. Armitage (12 Ves. 85),

874..
Pillow V. Love (6 Tenn. 109),

1254.
Pinero v. Judson (3 M. & P. 497),

257,576.
Pingry v. Watkins (17 Vt. 379),

1087.
Pingrey v. Watkins (15 Vt. 479),

543.
Pinhorn v. Souster (S Exch. 763),

223.
Pinner v. Arnold (2 C. M. & R.

613), 380.
Pintard v. Irwin (20 N. J. Law.

497), 1272, 1280.
Pinto V. Rintleman (02 S. W.

Rep. 1033), 378.
Pioneer Savings & Loan Co. v.
Fuller (57 Minn. 60). 1296.

TABLE OF CASES CITED.

clxxix

[references are to pages.]

Piper V. Cashnell (122 Fed. Rep.

614), 939, 942.
Piper V. Fletcher (115 Iowa, 263),

784,1152.
Piper V. Levy (114 La. 544), 1371.
Pistor V. Cator (9 M. & W. 315),

888.
Pitcher v. Daniel (12 Rich. S. C.

Eq. 349), 60.
Pitcher v. Donovan (2 Campb.

78), 158, 172.
Pitcher v. Tovey (4 Mod. 71), 520.
Pitman v. Woodbury (3 Exch. 11),

330.
Pitney v. Eldridge (58 Kan. 215),

122.
Pitt v. Hogg (4 Dowl. & R. 226),

1051.
Pitt V. Snowden (3 Atk. 750),

1124.
Pittsburg Amusement Co. v. Fer-
guson (100 App. Div. 453), 358.
Pittsburg Mfg. Co. v. Fidelity T.

& Tr. Co. (207 Pa. St. 223), 95,

1398.
Pittsburgh, etc. Co. v. Thorn-
burgh (98 Ind. 201), 243.
Planters' Compress Co. v. Howard

(80 S. W. Rep. 119), 1452.
Planters' Ins. Co. v. Diggs (8

Baxt. Tenn. 563), 663, 1032.
Piatt V. Johnson (168 Pa. St. 47),

525, 1240, 1444.
Playter v. Cunningham (21 Cal.

229), 700.
Pleadall's Case (2 Leon. 259), 89.
Ploen V. Staff (9 Mo. App. 309),

861.
Plumer v. Harper (3 N. H. 88),

679,794.
Plumer v. Plumer (30 N. H. 558),

920.
Pocher v. Hall (^8 N. Y. Supp.

754), 289, 290.
Poer V. Peebles (1 B. Mon. Ky. 1),

1464.

Poertner v. Russell (33 Wis. 193),

724.
Polack v. Pioche (35 Cal. 416),

882, 900.
Polland V. Fertilizer Co. (122 Ala.

409), 32.
Pollard V. Schaefer (1 Dall. Pa.

210), 615, 1080, 1340, 1352.
Pollen V. Brewer (7 Com. Bench,

N. S. 371), 192, 215.
Polley V. Johnson (52 Kan. 478),

1329.
Pollman v. Morgester (99 Pa. St.

611), 911.
Pollock V. Cronise (12 How. Prac.

N. Y. 363), 492.
Pollock V. Farmers' L. & T. Co.

(157 U. S. 429), 504.
Pollock V. Kitrell (4 N. C. 585),

197.
Pollock V. Stacy (9 Q. B. 103),

574.
Pomeroy v. Taylor (9 N. Y. St.

Rep. 514), 1149.
Pomfret v. Ricroft (1 Saund.

323a), 222.
Pond & Hasey Co. v. O'Connor (70

Minn. 266), 1244, 1257.
Ponder v. Cheaves (104 Ala. 306),

965.
Ponder v. Rhea (32 Ark. 435),

309.
Pontalba v. Domington (11 La.

192), 862, 1178.
Pool V. Hennessey (39 Iowa, 192),

568.
Poole V. Bentley (12 East, 168),

63, 256.
Poole v. Engelecke (61 N. J. L.

124), 235, 237.
Poole's Case (1 Salk. 369), 1256.
Poor V. Sears T154 Mass. 539),

813.
Pope v. Harkins (16 Ala. 321),

491.
Pope V. WTiitehead (68 N. C. 101),

81.

elxxx

TABLE OP CASES CITED,

[references ABE TO PAGES.T

Poposkey v. Munkwitz (68 Wis.

322), 672, 695.
Porch V. Fries (18 N. J. Eq. 204),

19, 118.
Porche v. Bodin (28 La. Ann.

761), 1315, 1318.
Pordage v. Cole (1 Saund. 320),

600.
Porter v. Bleiler (17 Barb. N. Y.

149), 87, 90.
Porter v. Groden (5 Yerg. Tenn.

100), 384.
Porter v. Johnson (96 Ga. 145),

1185,1187.
Porter v. Mayfield (21 Pa. St.

264), 922, 964.
Porter v. Merrill (124 Mass. 534),

283, 644, 1057.
Porter v. Sheppard (6 T. R. 665),

601, 625.
Porter v. Sweeney (61 Tex. 213),

10.
Portman v. Home Hospitals Ass'n

(27 Ch. D. 81, n), 739.
Post V. Kearney (2 N. Y. 394),

1016, 1021, 1048.
Post V. Post (14 Barb. N. Y. 253),

191, 218.
Post V. Vetter (2 E. D. Smith, N.

Y. 248), 782.
Post V. West Shore R. R. Co. (123

N. Y. 580), 729.
Postal Telegraph Cable Co. v.
Western Union Telegraph Co.
(155 ni. 335), 612.
Poston V. Jones (2 Ired. Eq. N. C.

350), 1138, 1183.
Poston V. Jones (37 N. C. 350),

1178.
Pott V. Lesher (1 Yeates, Pa. 57C),

573.
Potter V. Bassetl (35 Mo. Ai)p.

417), 106.
Potter V. Cunningham (44 Me.

192), 1328.
Potter V. Gilbert (177 Pa. St. 159),
1265.

Potter V. Greenleaf (21 R. I. 483),

1455, 1460.
Potter V. Gronbeck (117 111. 404),

1116.
Potter V. Mercer (53 Cal. 667),

250, 256, 261.
Potter V. New York Infant Asy-
lum (44 Hun, N. Y. 367), 65.
Potter V. Truitt (3 Har. Del. 331),

582.
Potts V. Hendrix (6 Ga. 452), 1315.
rough V. Cerimedo (88 N. Y.

Supp. 1054), 674.
Poulter V. Killingbrick (1 Bos. &

P. 397), 380.
Powell V. Beckley (38 Neb. 157),

874.
Powell V. Bergner (47 111. App.

33), 1250.
Powell V. Dailey (163 111. 646),

1400, 1428.
Powell V. Dayton (16 Oreg. 33),

721.
Powell V. D. S. & G. R. R. Co. (12

Oreg. 488), 600, 710.
Powell V. Gossom (18 B. Mon. Ky.

179), 100.
Powell V. Hadden's Ex'rs (21 Ala.

745), 319, 1402.
Powell V. Lynde Co. (64 N. Y.
Supp. 153), 362, 471, 478, 1075.
Powell V. Rich (41 111. 466), 1315,

1327.
Powell V. Simms (5 W. Va. 1),

409.
Powell V. Smith (11 L. J. Ch.

734), 374.
Powell V. State (84 Ala. 444),

1416.
Powers V. Cope T93 Ga. 248), S33,

849.
Powers V. Schoeltens (79 Mich.

290), 975.
Powis V. Smith (1 D. & R. 490),

87.
Prahar v. Tousey (93 App. Div.
507), 476, 785.

T^VBLE OF CASES CITED.

:li.xxi

[Ri:ir:uENCES are to pai-es;.]

Pratt V. Brett (2 Madd. 62), 725.
Pratt V. Farrar (10 Allen, Mass.

519), 210, 213.
Pratt V. Foote (9 N. Y. 463), 547.
Pratt V. Grafton Electric Co. (182

Mass. 180)^ 847.
Pratt V. Keith (33 L. J. Ch. 592),

529.
Pratt V. Levan (1 Miles, Pa. 358),

1060.
Pratt V. Lewis (39 Mich. 7), 405.
Pratt V. Taller (186 N. Y. 417),

808, 861.
Pray v. Stebbins (141 Mass. 219).

213,214.
Preble v. Hay (32 Me. 456), 156
Preece v. Corrie (2 M. & P. 57),

1048.
Prendergast v. Y'oung (21 N. H.

274), 672.
Prentiss v. Kingsley (70 Pa. St.

120), 1120.
Prentiss v. Warne (10 Mo. 601),

1207, 1222.
Presby v. Benjamin (169 N. Y.

377), 737, 1066.
Presbyterian Church v. Pichet

(Wright, Ohio, 57), 454.
Prescott V. Otterstatter (79 Pa.

St. 462), 564, 876, 1302.
Prescott V. White (21 Pick. Mass.

341), 437, 438.
Preston v. Hawley (130 N. Y.

296), 573.
Preston v. Neale (12 Gray, Mass.

222), 1299.
Pretley v. Bickmore (L. R. & C. B.

401, 402), 792.
Pretty v. Bickmore (L. R. 8 C. P.

401), 826.
Prettyman v. Unland (77 111. 206),

1420,1429.
Prettyman v. Walston (34 111.

175), 1073.
Prevost V. Lawrence (51 N. Y.
219), 24.

Price V. Assheton (1 Y. & Coll.

441), 1370, 1384.
Price V. Dyer (17 Ves. 363), 374.
Price V. Haynes (37 Mich. 487),

333.
Price V. Pickett (21 Ala. 741),

1306, 1310, 1315.
Price V. Sanders (60 Ind. 310), IS.
Price V. Warwood (4 H. & N. 512),

648.
Price V. Williams (1 Mee. & Wei.

6), 249.
Prichard v. Tabor (104 Ga. 64),

322.
Prickett v. Reed (31 Ark. 131),

1429.

Prickett v. Ritter (16 111. 96), 159.

Pridgeon v. Excelsior Boat Club

(66 Mich. 326), 431, 1142, 1145,

1182.

Priest V. Wheelock (29 Ind. 497),

28.
Prince v. Flynn (2 Litt. Ky. 40),

690.
Prindle v. Anderson (19 Wend. N.

Y. 391), 159, 179.
Prior V. Kizo (81 Mo. 241), 467,

691, 1191, 1195.
Pritchard v. Dodd (5 B. & Ad.

689), 245.
Probst V. Roch St. Laundry Co.

(171 N. Y. 584), 1379.
Proctor V. Benson (149 Pa. St.

254), 249.
Proctor V. Keith (12 B. Mon. Ky.

252), 641, 856, 1340.
Proctor V. Pool (4 Dev. N. C. 370),

336.
Proffltt V. Henderson (29 Mo. 325),

707.
Promer v. Railroad Co. (90 Wis.

220), 803.
Propert v. Parker (3 Mylne & K.

280), 388, 607.
Proprietors of Township No. 6 v.
McFarland (12 Mass. 325), 198.

clxxxii

TABLE OF CASES CITED.

[references are to pages.]

Proprietors, etc. v. Wood (3 Esp.

127), 900.
Proskey v. Cumberland Realty Co.

(70 N. Y. Supp. 1125), 1189.
Prospect V. Parker (3 Mylne & K.

280), 364.
Proudfoot V. Hart (59 L. J. Q. B.

D. 43), 886.
Prout V. Roby (15 Wall. U. S.

476), 989.
Prouty V. Prouty (5 How. Pr. N.

Y. 81), 172.
Providence v. St. John's Lodge (2

R. I. 40), 1293.
Providence Christian Union v.

Eliot (13 R. I. 74), 519.
Provost V. Lawrence (51 N. Y.

219), 920.
Prufrock v. Joseph (27 S. W. Rep.

264), 123.
Pryer v. Coulter (1 Bailey Law,

S. C. 517), 106.
Pryor v. Foster (130 N. Y. 171),

4S1, 1144.
Fugh V. Duke (Cowper, 714), 347.
Pugh Printing Co. v. Dexter (8

Ohio Dec. 557), 267.
Pugsley V. Aikin (11 N. Y. 494),

130.
Pulford V. Whicher (76 Wis. 555),

958.
Pulliam V. Sells (99 S. W. Rep.

289), 161.
Pulteney v. Shelton (5 Ves. 147),

765.
Purcell V. English (86 Ind. 34),

782, 814, 816. 822, 849.
Purdy'B Appeal (23 Pa. St. 97),

552, 1441, 1443.
Pursel V. Teller "(10 Colo. App.

488), 471, 478.
Purssell V. Mayor of the City of

New York (85 N. Y. 330), 1018.
Purton V. Watson (2 N. Y. Supp.

661), 727.
Putnam v. Bond (100 Mass. 58),

337.

Putnam v. Lewis (8 Johns. N. Y.

389), 547.
Putnam v. Ritchie (6 Paige Ch.

N. Y. 390), 15.
Putnam v. Stewart (97 N. Y. 411),

457, 1073, 1108.
Putnam v. Wise (37 Am. Dec.

309), 31L
Pynchon v. Stearns (11 Met. Mass.

304), 708.

Q.

Quackenboss v. Clarke (12 Wend.

N. Y. 555), 1069.
Quackenboss v. Lansing (6 Johns.

N. Y. 49), 604.
Quade v. Fitzloff (93 Minn. 115),

1378.
Quarman v. Burnett (1 Q. B. Div.

321), 803.
Quay V. Lucas (25 Mo. App. 4),

913.
Quay V. Westcott (60 Pa. St. 163),

568.
Quetermous v. Hatfield (54 Ark.

16), 320.
Quick V. Ludborrow (3 Bulst. 3),

619.
Quidort v. Bullitt (60 N. J. Law,

119), 1371.
Quiggle V. Vining (125 Ga. 98).

1318.
Quigley v. H. W. Johns Mfg. Co.

(26 App. Div. 434), 838.
Quiniby v. Shearer (56 Minn.

534), 361.
Quincey, Ex parte (1 Atk. 477),

1256.
Quincy v. Carpenter (135 Mass.

102), 1038.
Quincy M. & P. Ry. Co. v. Hum-
phreys (145 U. S. 82). 1122.
Quincy Parish v. Spear (15 Pick.

Mass. 144), 198.
Quinlan v. Bonte (24 III. App.

240), 139.

TABLE OF CASES CITED.

clxxxiii

[references are to pages.]

Quinn v. Crowe (88 111. App. 191),

847.
Quinn v. Perham (151 Mass. 162),

813.
Qainnette v. Carpenter (35 Mo.

502), 139, 141, 559, 1222.
Quinney v. Denny (18 Wis. 485),

333.

R.

Race V. Groves (43 N. J. Eq. 280),

991.
RacklefE v. Norton (19 Me. 274),

343.
Rae V. Lewis (2 W. Bl. 1173), 191.
Rafferty v. Schofield (66 L. J. Ch.

448), 628.
Ragar v. McKay (44 111. App. 79),

922,947.
Ragsdale v. Lander (80 Ky. 61),

384.
Ragsdale v. McKinney (119 Ala.

454), 1464.
Railroad Co. v. West (57 Ohio St.

161), 140.
Railton v. Taylor (20 R. I. 279),

783, 830.
Raines v. Keller (4 C. & P. 3),

621.
Raines v. Walker (77 Va. 92), 351.
Rainey v. Caps (22 Ala. 288), 262,

457.
Ralph V. Lomer (3 Wash. St. 401),

538.
Ralston v. Boady (20 Ga. 449),

772.
Ramsay v. Wilkie (13 N. Y. Supp.

554), 701, 1219.
Ramsey v. Henderson (10 West.

Rep. 33), 212, 182.
Ranalli v. Zeppetelli (94 N. Y.

Supp. 561), 458.
Rand v. Barrett (66 Iowa, 731),

1432.
Rand v. Francis (67 111. App.
225), 1060.

Randall v. Alburtis (1 Hilt. N. Y.

285), 1154.
Randall v. Ditch (123 Iowa, 58),

309, 1451.
Randall v. Rich (11 Mass. 494),

1238.
Randall v. Rosenthal (31 S. W.

Rep. 822), 1135.
Randall v. Sanderson (111 Mass.

114), 410.
Randel v. Alburtis (1 Hilt. N. Y.

285), 1132.
Randel v. Chesapeake & D. Canal

Co. (1 Har. Del. 233), 599.
Randolph v. Carlton (8 Ala. 606),

934,936.
Randolph v. Feist (23 Misc. Rep.

650), 802.
Randol v. Scott (110 Cal. 590),

665,1066.
Randol v. Tatum (98 Cal. 390),

644, 1057.
Ranelagh v. Melton (2 Drew. &

Sm. 278), 992.
Ranger v. Bacon (3 Misc. Rep.

95), 1093.
Ranken v. Hunt (10 R. 249), 749.
Rankin v. Kinsey (7 Brad. 111.

215), 1325.
Rankin v. Rankin (216 111. 132),

988.
Rankin v. Simpson (19 Pa. St.

471), 950.
Ranlet v. Cook (44 N. H. 512),

1387.
Rappe V. Front (3 Okl. 260), 920.
RatclifE V. Belfont Iron Works (87

Ky. 559), 484.
Raubitscheck v. Semken (4 Abb.

New Cas. N. Y. 205), 1205.
Raventas v. Green (57 Cal. 254),

291.
Rawle V. Balfour (16 W. N. C. Pa.

194), 848.
Rawlings v. Briggs (2 C. P. Div.

368),102S.

clxxxiv

TABLE OF CASES CITED.

Rawlings v. Walker (5 B. & Cr.

Ill), 1233.
Rawlin's Case (4 Coke, 53a), 952.
Rawls V. Moye (98 Ga. 564), 1411.
Rawson v. Babcock (40 Mich.

330), 198.
Rawstarne v. Bentley (4 Bro. Ch.

417), 1383.
Ray V. Gas Co. (138 Pa. St. 576),

641,643.
Raylyn's Case (4 Coke, 53a), 953.
Raymond v. Fitch (2 C. M. & R.

588), 51.
Raymond v. Krauskopf (87 Iowa,

602), 555.
Raymond v. Mercliant (3 Cow.

N. Y. 147), 547.
Raymond v. Striclvland (124 Ga.

504), 1257.
Raymond v. Thomas (24 Ind.

476), 522.
Raymond v. White (7 Cow. N. Y.

319), 1250.
Rayne v. Irvin (144 III. 482), 804.
Rayner v. Drew (72 Cal. 307),

385, 957.
Rayner v. Lee (20 Mich. 384), 368.
Read v. Bolger (70 N. Y. Supp.

757), 848.
Readey v. American Brewing Co.

(60 111. App. 501), 1090.
Readfield T. & T. Co. v. Cyr (95

Me. 287), 1248.
Readman v. Conway (126 Mass.

374), 804, 813.
Reasoner v. Edmundson (5 Ind.

393), 1129.
Reckhow v. Schank (43 N. Y.

448), 223.
Rector v. Harford Deposit Co. (190

111. 380), 10G4, 1092.
Rector, etc. Trinity Church v. Hig-

gins (48 N. Y. 533), 1013.
Redden v. Barker (4 Har. Del.

179), 317.
Reddick v. HuLchlnson (94 Ga.

675), 322.

[references are to pages.]

Redding v. Hall (1 Bibb. Ky. 536),

Rede v. Farr (6 Maule & S. 121),

642, 645, 1068.
Redpath v. Roberts (3 Esp. 225),

1216.
Reed v. Bartlett (9 111. App. 267),

288.
Reed v. Campbell (43 N. J. Eq.

406), 1367, 1368.
Reed v. Deere (7 B. & C. 266),

582.
Reed v. Harrison (196 Pa. St.

337), 896, 899.
Reed v. Lewis (74 Ind. 433), 336,

733, 757.
Reed v. Munn (148 Fed. Rep. 737),

954, 1228.
Reed v. Reed (48 Me. 388), 206,

228, 234.
Reed v. Reynolds (37 Conn. 469),

692, 1190.
Reed v. Shepley (6 Vt. 602), 964
Reed v. Swan (133 Mo. 100), 1325.
Reed v. Todd (1 Har. Del. 138),

920.
Reed v. Van Nostrand (1 Wend.

N. Y. 424), 547.
Reed v. Ward (22 Pa. St. 144),

541, 552.
Reeder v. Anderson (4 Dana, Ky.

193), 1299.
Reeder v. Say re (70 N. Y. 180),

133, 146, 197.
Reeder v. Sayre (80 N. Y. 190),

147.
Reedy v. Smith (42 Cal. 245),

327.
Rees V. Perrot (4 Car. & Payne,

230), 43.
Reese v. Caffee (133 Ind. 14), 920.
Reese v. Cochran (10 Ind. 195),

24.
Reese v. Rugely (82 Ala. 267).

1417.
Rpovo V. Berridge (20 Q. B. 523),

1075.

TABLE OP CASES CITED.

cixiLKV

[references

Reeve v. Bird (1 C. M. & R. 37),

1199.
Reeves v. Cattell (24 W. R. 485),

737.
Reeves v. Hyde (14 111. App. 233),

855.
Reeves v. McComeskey (168 Pa.

St. 571), 785.
Reffel V. Reffel (1 L. R. P. & D.

139), 343.
Regan v. Walsh (11 Ohio Dec. 61),

1214.
Regan v. Luthy (16 Daly, N. Y.

413), 721.
Regina v. Ponsonby (3 Ad. & El.

N. S. 14), 301.
Regina v. St. Giles (4 B. & S.

509), 131.
Regina v. St. Nicholas (5 Barn. &

Adol. 227), 566.
Regina v. Slawstone (18 Q. B.

388), 174.
Rehler v. Railway Co. (8 N. Y.

Supp. 286), 870.
Reich v. McCrea (59 Hun, 625),

1215.
Reichstetter v. Reese (39 S. W.

Rep. 597), 958.
Reid V. Hibbard (6 Wis. 175), 101.
Reid V. Parsons (2 Chit. 247),

644.
Reid V. Town of Long Lake (89

N. Y. Supp. 983), 394.
Reid V. Weissner (88 Md. 234),

644.
Reinhardt v. Blanchard (78 111.

App. 96), 1432.
Reinhart v. Miller (22 Ga. 402),

333.
Reitanbaugh v. Ludwick (31 Pa.

St. 131), 30.
Reithman v. Brandenburg (7 Colo.

480), 155.
Relph V. Gist (4 McCord. S. C.

267) 332.
Remnant v. Brembridge (2 Moore,

94), 45.

ARE TO PAGES.]

Remsen v. Conklin (18 Johns. N.

Y. 447), 528, 554, 638.
Renard v. Sampson (12 N. Y. 561),

459.
Rendall v. Andreae (61 Law J. Q.

B. 630), 45.
Renney v. Sweeney (14 R. I. 581),

233.
Rennie v. Robinson (7 Moore,

539), 575.
Reno V. Mendenhall (58 111. App.

87), 563, 565, 868, 877, 881.
Renoud v. Daskam (34 Conn. 512),

1368, 1378.
Renton v. Baraett (77 L. T. Rep.

645), 628.
Repplier v. Buck (5 B. Mon. Ky.

96), 1434.
Requa v. Domestic Pub. (32 N. Y.

Supp. 125), 1236.
Respell V. Carwin (72 111. App.

623), 481.
Retchie v. Atkinson (10 East,

295), 601.
Reusens v. Lawson (91 Va. 226),

972.
Reuss V. Picksley (L. T. I. Exch.

342), 386.
Rex V. Bardwell (6 Ad. & El. 278),

301.
Rex V. Chestnut (1 Barn. & Aid.

473), 300.
Rex V. Chipping Norton (5 East,

239), 64.
Rex V. Collett (R. & R. 498), 186,

190.
Rex V. Eatington (4 T. R. 181),

566.
Rex V. Fillongley (1 Term. Rep.

458), 187, 190.
Rex V. Flintshire (3 Dowl. & L.

537), 343.
Rex V. Inhabitants (5 Mod. 331),

10.
Rex V. .Jobling (R. & R. 525),

186, 190.

clxxxvi

TABLE OP CASES CITED.

[references ake to pages.]

Rex V. Manners (3 Ad. & El. 597),

11.
Rex V. Northwin^eld (1 B. «S; Ad.

912), 461.
Rex V. Oakley (10 East, 494), 11,
Rex V. Rawdon (3 M. & Ry. 426),

581.
Rex V. Sutton (3 Ad. & El. 597),

12.
Rex V. Tynemouth (12 East, 46),

301.
Reynolds v. Black (91 Iowa, 1),

1439.
Reynolds v. Davidson (31 Md.

662), 102.
Reynolds v. Ellis (103 N. Y. 115),

279, 1404, 1405.
Reynolds v. Fuller (64 111. App.

134), 1060.
Reynolds v. Greenbaum (80 111.

416), 349.
Reynolds v. Hindman (88 Ga.

314), 1415.
Reynolds v. Lawton (55 Hun,

603), 1069.
Reynolds v. Pitt (19 Ves. 134),

667, 1038.
Reynolds v. Rej^nolds (48 Hun, N.

Y. 142), 310, 314.
Reynolds v. Shuler (5 Cow. N. Y.

323), 1254.
Reynolds v. Swain (13 La. 193),

1222.
Reynolds v. Van Buren (155 N. Y.

120), 290, 837.
Reynolds v. Welsh (8 N. Y. St.

Rep. 404), 327.
Reynolds v. Williams (1 Tex. 311),

685.
Reysen v. Roate (92 Wis. 543),

435.
Rhoades v. Seidel (12 Det. Leg.

N. Rep. 1), 797, 855.
Rhode V. Loiithain (8 Black. Ind.

413), 97, 99.
Rhodes v. Com. (7 Ky. Law Rep.

520), 778.

' Rhodes v. Robinson (3 Bing. N. C.

677), 175.
Rhodius V. Johnson (24 Ind. App.

401), 819.
Rhone v. Gale (12 Minn. 54), 349,

1036,
Rhyme v. Guevara (67 Miss. 139),

934, 936.
Ricardi v, Gaboury (115 Tenn.

484), 14.
Rice V. Brown (81 Me. 56), 329,

330.
Rice V. Dudley (55 Ala. 68), 1131,

1175, 1213.
Rice V. Pacific Realty Co. (35

Wash. 535), 1137,
Rice V. Whitmore (74 Cal. 619),

111, 672,
Rich V. Basterfield (4 C. B. 783),

793, 825.
Rich V. Bolton r46 Vt. 84), 187,

216.
Rich V. Doyenn (85 Hun, N, Y.

510), 1207, 1214.
Richards v. Bluck (6 C. B. 437),

1335.
Richardson v. Bates (8 Ohio St.

257), 334.
Richardson v. Bigelow (15 Gray,

Mass. 154), 437.
Richardson v. Callahan (73 Miss.

4), 1184.
Richardson v, Coddington (49

Mich. 1), 552.
Richards v, Gauffret (145 Mass.

486), 435, 685.
Richardson v. Gifford (3 N. & M.

325), 385.
Richardson v. Gifford (1 Ad. &

El, 52), 139, 147, 196, 889.
Richardson v, Gordon (188 Mass.

279), 1013, 1216.
Richard.son v. Hall (1 B. & B. 50),

570, 582.
Richardson v, Harvey (37 Ga.

224), 923.

TABLE OF CASES CITED.

clxxxvii

[refebexces aee to pages.]

Richards v. Knight (78 Iowa, G9),

1325.
Richardson v. Langridge (4

Taunt. 128), 133, 134, 190, 191.
Richardson v. McLaurin (69 Miss.

70), 1429.
Richardson v. Peterson (58 Iowa,

724), 1425.
Richardson v. Pond (81 Mass. 387,

389), 409.
Richardson v. Richardson (49 Mo.

29), 13.
Richardson v. Richardson (9 Gray,

Mass. 213), 732.
Richardson v. Thornton (52 N. C.

458), 198.
Richie v. McCauley (4 Pa. St. 471),

1444.
Richmond Ice Co. v. Crystal Ice

Co. (99 Va. 239), 1340.
Rickards v. Dana (75 Vt. 74), 335,

1044.
Rickert v. Snyder (9 Wend. N. Y.

415), 497.
Ricketson v. Galligan (89 "Wis.

394), 921.
Ricketts v. Garrett (11 Ala. 806),

1171.
Ricketts v. Weaver (12 M. & W.

718), 51.
Riddle v. Brown (20 Ala. 412),

274.
Riddle v. Littlefield (53 N. H.

503), 412, 442.
Rider v. Bagley (84 N. Y. 461),

32.
Ridge V. Railroad Transfer Co.

(56 Mo. App. 50), 680.
Ridgley v. Stillwell (27 Mo. 128),

522.
Ridgley v. Stillwell (28 Mo. 40),

146.
Ridgely v. Stillwell (25 Mo. 570),

1G2.
Ridgeway v. Hannum (129 Ind.

App. 124), 139.
m

Ridgway v. Wharton (6 H. L. Cas.

288), 249, 360.
Rigge V. Bell (5 Term. Rep. 471),

172.
Riggin V. Maguire (15 Wall. U. S.

549), 1120.
Riggs V. Gray (72 S. W. Rep. 101),

848.
Riggs V. Pursell (66 N. Y. 193),

738, 910, 1051.
Right V. Bawden (3 East, 460),

511.
Right V. Cuthell (5 Esp. 149), 89.
Right V. Darby (1 T. R. 159), 156,

158, 217.
Right d. Lewis v. Beard (13 East,

210), 236.
Riker v. Bagley (84 N. Y. 461),

1125.
Riley v. Hale (158 Mass. 240),

703.
Riley v. Jordan C122 Mass. 231),

1074.
Riley v. Lally (172 Mass. 244),

1136, 1176.
Riley v. Peltis Co. (96 Mo. 318),

858.
Ring V. Johnson County (6 Iowa,

265), 65.
Ringle v. Quigg (87 Pac. Rep.

724), 471.
Ripley v. Page (12 Vt. 353), 1259.
Riseley v. Ryle (11 M. & W. 6),

193.
Rising V. Stannard (17 Mass. 282),

206, 208, 209, 215, 217, 228, 1306.
Rittmaster v. Brisbane (19 Colo.

371), 349.
Rives v. Dudley (3 Jones, N. C.

Law, 126), 61.
Rivett V. Brown (6 "\;VT<ly. L. Bui.

Ohio, 378), 163.
Rivis V. Watson (5 M. & W. 255),

541, 1112.
Roach V. Peterson (47 Minn. 291),

868, 1346, 1358.

cixxxvm

TABLE OF CASES CITED.

[BEFEEE?rCES ARE TO PAGES.]

Robb V. Antonio St Rep. (83

Tex. 392), 385.
Robb's Appeal (41 Pa. St. 45), 51.
Robbins v. Atkins (168 Mass. 45),

802.
Robbins v. Conway (92 111. App.

173), 646.
Robbins v. Jones (15 Com. Bench,

N. S. 238), 913.
Robbins v. Mount (27 N. Y. Super.

553), 782, 783.
Roberts v. Barker (1 C. & M. 808),

1214, 1335.
Roberts v. Brett (11 H. L. Cases,

354), 625.
Roberts v. Daver (4 B. & A. 664),

642.
Roberts v. Hay ward (3 Car. & P.

432), 143.
Roberts v. Holland (62 L. J. Q. B.

621), 88.
Roberts v. Jacks (31 Ark. 597),

1410, 1428.
Roberts v. Jones (71 S. Car. 404),

1331.
Roberts v. MePherson (63 N. J.

Law, 352), 490.
Roberts v. Sims (64 Miss. 597),

1032.
Robertson v. Banks (9 Miss. 666),

106.
Robertson v. Bid^ell (32 Fla. 304),

934.
Robertson v. French (4 East, 130),

604.
Robertson v. Hayes (83 Ala. 290),

119.
Robertson v. Pope (1 Rich. Law,

S. C. 501), 106.
Robertson v. St. John (2 Bro. P.

C. 140), 1366.
Robertson v. Simons (109 Ga.

360), 139, 158.
Robery v. Jervoise (1 Term. Rep.

229), 1385.
Robeson v. Pittenger (2 N. J. Eq.
57), 44L

Robey v. Prout (7 D. C. 81), 633.
Robie V. Smith (21 Me. 114), 206,

207, 234.
Robins v. Cox (1 Lev. 22), 1112.
Robinson v. Beard (140 N. Y. 107),

1391.
Robinson v. Clapp (65 Conn. 365),

410.
Robinson v. Deering (56 Me. 357),

539.
Robinson v. Glass (94 Ind. 211),

361.
Robinson v. Gould (26 Iowa, 89),

350, 352.
Robinson v. Henaghan (92 111.

App. 620), 1155.
Robinson v. Hoffman (1 M. & P.

474), 90.
Robinson v. .Tarvis (25 Mo. App.

421), 361.
Robinson v. Kline (70 N. Y. 147),

716.
Robinson v. Kruse (29 Ark. 575),

1317.
Robinson v. Lehman (72 Ala. 401),

1096.
Robinson v. L'Engle (13 Fla. 482),

1340, 1345. 1352.
Robinson v. Noel (49 Miss. 253),

349.
Robinson v. Perry (21 Ga. 183),

1044.
Robinson v. Robinson (116 III.

250), 349.
Robinson v. Robinson (1 N. H.

161), 30.
Robinson v. Root (90 Ala. 115),

964.
Robinson v. Troupe Min. Co. (55

Mo. App. 662), 934, 936.
Robinson v. Wheeler (25 N. Y.

252), 351.
Robinson v. Wright (2 MacArthur,

D. C. 54), 1253.
Robrecht v. Marling's Adm'r (29

29 W. Va. 765), 696.

TABLE OF CASES CITED.

clxxxix

[referexces are to pages.]
Robson V. Flight (4 De G., J. & S. i Roehrs v. Timmons (63 N. E. Rep.

608), 19.

481), 847.

Roby V. Cossitt (78 111. 638), 101. I Rogan v. Dockery (23 Mo. App.

Rochester v. Pierce (1 Camp. 466),

64.
Rockingham v. Penrice (IP. Wm.

179), 632, 540.
Rockport V. Rockport Granite Co.

(177 Mass. 246), 274.
Rodgers v. Bell (53 Ga. 94), 976.
Rodgers v. Pitcher (6 Taunt. 208),

512.
Rodwell V. Phillips (9 Mee. &

Well. 501), 1306.
.Roe V. Archbishop of York (6

East, 86), 1201.
Roe d. Berkeley v. Tax (6 East,

86), 1202.
Roe V. Charnock (Peake, N. P. C.

4), 158.
Roe d. West v. Davis (7 East,

363), 367.
Roe V. Galliers (2 T. R. 133), 1065.
Roe d. Gregson v. Harrison (2 T.

R. 425), 647.
Roe, Lessee of Bramford, v. Hay-
ley (12 East, 464), 375.
Roe d. V. Lees (2 W. Bl. 1173),

192.
Roe d. Goatley v. Paine (2 Camp,

520), 890.
Roe d. Shore v. Porter (3 T. R.

13), 43.
Roe d. Dingley v. Sales (1 M. &

S. 297), 1053.
Roe d. Blair v. Street (4 N. & M.

42), 215.
Roe V. Harrison (2 T. R. 133),

1065.
Roe V. Street (2 A. & EI. 329),

198.
Roe V. Summerset (2 W. BI. 692),

53.
Roe V. Ward (1 H. Bl. 96), 137,

160, 229.
Roe V. Wiggs (2 Bos. & P. N. S.

330), 169.

313), 847.
Rogers v. Bemus (69 Pa. St. 432),

880.
Rogers v. Boynton (57 Ala. 501),

922.
Rogers v. Brokaw (25 N. J. Eq.

497), 1255.
Rogers v. Brown (57 Minn. 223),

150.
Rogers v. Dansworth (9 N. J. Eq.

289), 604.
Rogers v. Gosnell (51 Mo. 466),

533.
Rogers v. Grigg (29 S. W. Rep.

654), 1436.
Rogers v. Herron (92 111. 582),

1100.
Rogers v. Humphreys (4 Ad. & El.

299), 31, 288.
Rogers v. McGuffey (74 S. W. Rep.

753), 696.
Rogers v. McKenzie (65 N. Car.

218), 492.
Rogers v. Ostrom (35 Barb. N. Y.

523), 1138.
Rogers v. Pitcher (6 Taunt. 202),

134, 923.
Rogers v. Pullen (2 Bing. N. C.

749). 193.
Rogers v. Snow (118 IMass. 118),

397.
Rogers v. S. E. Grote Paint Co.

(94 S. W. Rep. 548), 1350.
Rogers v. Waller (4 Hayw. Tenn.

205), 920.
Rohrer v. Babcock (126 111. 222),

309, 311.
Rohrheimer v. Hoffman (103 Pa.

St. 409), 555.
Rolfe V. Harris (2 Price, 206n),

667, 1038.
Rollins V. Moody (72 Me. 135),

1222.

cxc

TABLE OF CASES CITED.

[references are to pages.]

Rollins V. Movers (25 Me. 192),

1298.
Rollins V. Proctor (56 Iowa, 326),

1437, 1449.
Rolls V. Miller (53 L. J. Ch. 682),

739.
Rolt V. Somerville (2 Eq. Cas.

Abr. 739), 725.
Roman v. Taylor (93 App. Div.

449), 1360.
Ronaldson v. Tabor (43 Ga. 230),

941.
Roney v, Aldrich (44 Hun, 320),

870.
Rook V. Warth (1 Ves. Sr. 462),

844.
Rooney v. Crary "(S 111. App. 329),

1282, 1291.
Rooney v. Gillispie (6 Allen, 74),

209.
Roosevelt v. Bull's Head Bank (45

Barb. N. Y. 579), 537.
Roosevelt v. Hopkins (33 N. Y.

81), 1044, 1050.
Roosevelt v. Hungate (110 111.

595), 182.
Ropps V. Barker (4 Pick. Mass.

239), 1259.
Rorbach v. Crossett (64 Hun, 637),

180, 1224.
Rose V. Davis (11 Cal. 133), 943.
Rose V. King (49 Ohio St. 213),

916.
Rose V. Wynn (42 Ark. 42), 694.
Rosen v. Rose (2 Ann. Cases, 194),

385.
Rosenan v. Syring (25 Oreg. 386),

1301.
Rosenbaum v. Gunter (3 E. D.

Smith, N. Y. 203), 481, 1077.
Rosenberg v. Schoolherr (101 N.

Y. Supp. 505), 819.
Rosenberg v. Sharper (51 Tex.

134), 1084.
Rosenberg v. Sprechie (103 N. W.

Rep. 1045), 573.

Rosenblat v. Perkins (18 Oreg.

156), 146, 162.
Rosenbloom v. Pinch (37 Misc.

Rep. 318), 898, 1155.
Rosenfield v. Newman (59 Minn.

159), 839, 841.
Rosenquist v. Canary (15 Misc.

Rep. 148), 585.
Rosenstein v. Cohen (96 Minn.

336), 784.
Ross V. Campbell (9 Colo. App.

38), 1249.
Ross V. Cobb (9 Yerger, Tenn.

363), 10.
Ross V. Com. (2 B. Mon. Ky. 417),

778.
Ross V. Dysart (33 Pa. St. 452),

697, 1171.
Ross V. Gill (1 Wash. Va. 7), 13.
Ross V. Gill- (4 Call. Va. 250), 15.
Ross V. Jackson (123 Ga. 607),

801.
Ross V. Kernan (31 Hun, 164),.

485.
Ross V. Schneider (30 Ind. 423),

1072.
Roth V. Adams C185 Mass. 341),

592, 782.
Roth V. Collins (109 Iowa, 501),

1250.
Rothermel v. Dunn (119 Pa. St.

637), 250.
Rothman v. Kosover (48 Misc.

Rep. 538), 1190.
Rothstein v. Steinbugler (102 N.

Y. Supp. 470), 536.
Rofh Tool Co. V. Champion Spring

Co. (93 Mo. App. 530), 1047.
RothwelFs Case (Hut. 91), 952.
Roumage v. Blatrier (11 Rob. La.

101), 1222.
Round Lake Ass'n v. Kellogg (141

N. Y. 348), 329, 729.
Rousey v. Mattox (111 Ga. 883),

1439.
Rowan v. Anderson (33 Kan. 264),.

1259.

T.VBLE OF CASES CITED.

CXCl

[keferexces aee to pages.]

Rowan v. Little (11 Wend. N. Y.

616), 227, 1193, 1204.
Rowan v. Riley (65 Tenn. 67), 49.
Rowbothara v. Pearce (5 Houst.

Del. 135), 1154, 1167.
Rowe V. Baber (93 Ala. 422), 877.
Rowe V. Hayley (12 East, 464),

1391.
Rowe V. Huntington (1 Vaughan,

73), 346.
Rowe V. Ream (105 Pa. St. 453),

496.
Rowe V. Ware (30 Ga. 278), 97.
Rowe V. Williams (97 Mass. 163),

524, 572.
Rowell V. Klein (44 Ind. 290),

1327.
Rowlands v. Voechting (115 Wis.

352), 310, 1318, 1319.
Roxbury v. Huston (39 Me. 312),

579.
Royal Bank v. Railroad Co. (100

Mass. 444), 332.
Royce v. Guggenheim (106 Mass.

201), 1129, 1131, 1140, 1167,1176.
Royce v. Latshaw (62 Pac. Rep.

627), 1297.
Royston v. Royston (29 Ga. 82),

16.
Rubens v. Hill (213 Hi. 523), 456.
Rubery v. Stevens (4 Barn. &

Adol. 241), 46.
Ruckman v. Astor (3 Edw. Ch.

N. Y. 373), 492.
Rudd V. Golding (6 Mov. 231),

621.
Ruggles V. Washington Co. (3 Mo.

496), 101.
Rummel v. New York, L. E. & W.

Ry. Co. (9 N. Y. Supp. 404),

503.
Ruse V. Mutual B. Life Ins. Co.

(223 N. Y. 516). 457, 459.
Russell V. Allard (18 N. H. 222),

934.
Russell V. Allen (2 Allen, Mass.
42), 30.

Russell V. Darwin (2 Bro. 638),

1374.
Russell V. Doty (4 Cow. N. Y.

576), 526.
Russell V. Erwin (38 Ala. 44),

924.
Russell V. Fabyan (28 N. H. 543),

523), 539.
Russell V. Fabyan (27 N. H. 529),

922, 1171.
Russell V. Fabyan (34 N. H. 218),

229.
Russell V. Giblin (16 Daly, 258),

295.
Russell V. Irwin's Adm'r (38 Ala.

44), 922, 943.
Rundell v. La Fleur (88 Mass.

480), 326.
Russell V. McCartney (21 Mo. App.

544), 160, 369.
Russell V. Rush (2 Pitts. Pa. 134),

848, 876.
Rutgers v. Hunter (6 Johns. Ch.

N. Y. 215), 1363, 1368, 1369,

1382.
Rutherford v. Wabash R. R. Co.

(147 Mo. 441), 442, 445.
Rutherford's Heirs v. Clark's

Heirs (4 Bush. Ky. 27), 54.
Rutledge v. Walton (4 Yerg. Tenn.

458), 1423.
Rutter V. Smith (2 Wall U. S.

491), 1264.
Rutz V. Kehn (143 111. 558), 434.
Ryan v. Clark (14 Q. B. 65), 355.
Ryan v. Jones (20 N. Y. Supp.

842), 103.
Ryan v. Jones (49 N. Y. St. Rep.

140), 1144.
Ryan v. Kirchberg (17 111. App.

132), 1195.
Ryan v. Potwin ('62 111. App. 134),

775, 776.
Ryan v. Wilson (87 N. Y. 471),

873.
Ryerson v. Eldre'd (18 Mich. 12),

920, 922, 964.

excii

TABLE OF CASES CITED.

[befeeences ake to pages.]

Ryerson v. Quackenbusli (26 N. J.

Law, 236), 541, 559.
Ryley v. Hicks U Str. 651), 385.

Sachererell v. Frogott (2 Saund.

367), 48, 90, 530.
Sackett v. Barnum (22 Wend. N.

Y. 605), 321.
Sadler v. Jefferson (143 Ala. 669),

278, 934.
Saffer v Levy (88 N. Y. Supp.

144), 880.
Sage V. Halverson (72 Minn. 294),

924.
Sage V. Wilcox (6 Conn. 81), 519.
St. Albins v. Ellis (16 East, 352),

602.
St. Anthony Falls Water Co. v.

Morrison (12 Minn. 249), 934.
St. Bernard v. Kemper (60 Ohio

St. 244), 1373.
St. .John V. Quitzow (72 111. 334),

934.
St, Joseph & St. L. R. Co. v. St.
L. Ry. Co. (135 Mo. 173), 243,
885.
St. Joseph & St. L. R. Co. v. St.
Louis J. M. & S. Ry. Co. (102
Mo. 173), 1095.
St. Louis V. Merton (6 Mo. 476),

72.
St. Louis A. & T. Co. v. Trigg (63

Ark. 536), 686.
St. Louis Brewing Ass'n v. Kalten-

bach (108 Mo. App. 637), 592.
St. Louis Brew. Ass'n v. Nieder-
leucke (76 S. W. Rep. 645), 245,
249.
St. Louis Public Schools v. Boat-
men's Ins. & Trust Co. (5 Mo.
App. 91), 543.
St. Louis, etc. R. Co. v. Hall (71

Ark. 302), 191, 225, 686.
St. Louis Type Foundry v. Taylor
(35 S. W. Rep. 691), 1446.

St. Mich. P. E. Ch. v. Behrens (10

N. Y. Civ. Pro. Rep. 181), 1151.

St. Paul Title Ins. Co. v. Diagonal

Coal Co. (95 Iowa, 551), 1439.
Salina State Bank v. Burr (7 Kan.

App. 197), 1435.
Salisbury v. Marshal (4 C. & P.

65), 784.
Salisbury v. Shirley (66 Cal. 223),

90. 518, 615, 1020, 1079.
Sallade v. James (6 Pa. St. 144),

1026. 1328.
Salmon v. Matthews (8 Mee. &

Wei. 825), 510, 541.
Salmon v. Smith (1 Saund. 204),

1180.
Salmon v. Swan (Cro. Jac. 619),

1228.
Salomon v. O'Donnell (5 Colo.

App. 35), 164.
Salomon v. Weisberg (61 N. Y.

Supp. 60), 250.
Saloy V. Bloch ri36 U. S. 338),

1438.
Salter v. Burt (20 Wend. N. Y.

205), 356.
Sammis v. Poole (188 111. 396),

1452.
Sampson v. Camperdown (64 Fed.

Rep. 939), 1265, 1294.
Sampson v. Easterby (9 B. & C.

505), 602.
Sampson v. Grimes (7 Blackf. Ind.

173), 491. 498.
Sampson v. Grimes (3 Har. Del.

82), 539.
Sampson v. Henry (11 Pick. Mass.

379), 237.
Sampson v. Schaefer (3 Cal. 196),

212, 575.
Samson v. Rose (65 N. Y. 411),

1323, 1327.
Samuelson v. Mining Co. (49

Mich. 164), 793.
San Antonio v. French (80 Tex.

575), 74.

TABLE OF CASES CITED.

cxcni

[references are to pages.]

San Antonio Brewing Ass'n v.
Brentz (Vt. 1905, 61 Atl. Rep.
368), 734.
Sanborn v. Cree (3 Colo. 149),

1077.
Sanborn v. Randall (62 N. H.

620), 88, 90.
Sanborn v. Sanborn (104 Mich.

180), 361.
Sanborn v. "Van Duyne (90 Minn.

215), 71.
Sandel v. Douglass (27 La. Ann.

629), 1318, 1325.
Sanders v. Benson (4 Beav. 350),

1105.
Sanders v. Bryer (152 Mass. 141),

717.
Sanders v. Ellington (77 N. Car.

255), 1306, 1311, 1334.
Sanders v. Lord Annesley (2 Sch.

& Lef. 106), 969.
Sanders v. Partridge (108 Mass.

556), 1045.
Sanders v. Pope (12 Ves. 282),

663, 666.
Sanders v. Richardson (14 Pick.

Mass. 522), 200.
Sanders v. Smith (23 N. Y. Supp.

125), 860.
Sanderson v. Berwick-upon-Tweed

Cor. (53 L. J. Q. B. 559), 1131,

1160.
Sanderson v. Dobson (1 Exch.

145), 604.
Sandhill v. Franklin (L. R. 10 C.

B. 342), 512.
Sandifer v. Grantham (62 Miss.

412), 54.
Sandill v. Franklin (44 L. J. C. P.

216), 173.
Sandford v. Clarke (57 L. J. Q. B.

507), 160.
Sands v. Hughes (53 N. Y. 293),

958.
Sandwith v. De Silver (1 Browne,

Pa. 221), 518, 1025.

San Filippo v. Posting Co. (98 N.

Y. Supp. 661), 837.
Sanford v. Johnson (24 Minn.

172), 24, 191.
Sanford v. Modine (51 Neb. 728),

312.
Saner v. Bilton (47 L. J. Ch. 267),

858, 862, 904.
San Francisco v. Itzell (80 Cal.

57), 71.
Sang Shing v. Sire (15 Misc. Rep.

139), 585.
Santa Rosa Irr. Co. v. Pecos R. I.

Co. (92 S. W. Rep. 1014), 338.
Sapsford v. Fletcher (1 T. R. 511),

545.
Sargent v. Adams (3 Gray, Mass.

72), 398, 456, 462.
Sargent v. Parsons (12 Mass.

149), 83.
Sargent v. Pray (117 Mass. 267),

1014.
Sartwell v. Young (126 Mich.

304), 946.
Saterfield v. Moore (110 Ga. 514),

1402.
Sauer v. Meyer (87 Cal. 34), 633.
Saunder's Case (5 Coke, 12), 710.
Saunders v. Blythe (112 Mo. 1),

351.
Saunders v. Moore (14 Bush, Ky.

97), 922, 1411.
Saunders v. Musgrave (6 B. & C.

524), 134, 321.
Sausser v. Steinmetz (88 Pa. St.

324), 268, 377, 384, 562.
Savage v. Mason (3 Cush. Mass.

500), 614.
Savings Bank of Cinn. v. Benton

(2 Mete. Ky. 240), 65.
Saving Fund v. Marks (3 Phila.

Pa. 278), 550.
Sawyer v. McGillicuddy (81 Me.

318), 813.
Sawyer v. Sargent (7 Pac. Rep.

120), 964.

CXCIV

TABLE OF CASES CITED.

[EEFEFSNCES ABE TO PAGES.]

Sawyer v. Twiss (26 N. H. 345),

1331.
Sawyers v. Zachery (1 Head,

Tenn. 21), 16.
Savory v. Stocking (4 Ciish. Mass.

607), 1120.
Saxton V. Storage Co. (129 111.

318). 615.
Say V. Mattram (19 Com. Bench,

N. S. 479), 602.
Say V. Stoddard (27 Ohio St. 478),

206.
Sayles v. Kerr (4 App. Div. 150),

1086.
Scaife v. Argall (74 Ala. 473),

122.
Scaife v. Stovall (67 Ala. 237),

1424,1429.
Scaltock V. Heuston (1 L. R. C. P.

Div. 106), 489, 494.
Sehaeffer v. Henkel (75 N. Y.

378), 109.
Schaidt v. Blaul (66 Md. 141),

441.
Schanda v. Sulzberger (40 N. Y.

Supp. 116), 831.
Schee v. Wiseman (79 Ind. 389),

41,47.
Scheel v. Alhambra Mining Co.

(79 Fed. Rep. 821), 442.
Scheelky v. Koch (119 N. C. 80),

1214.
Scheldt V. Belz (4 111. App. 431),

442,446.
Schenck v. Mundorf (2 Brown,

Pa. 106), 689.
Schenck v. Vannest (4 N. J. Law,

329), 523.
Schenkel v. Lischinsky (90 N. Y.

Supp. 300), 1044.
Schermerhorn v. Gouge (13 Abb.

Prac. N. Y. Rep. 313), 477, 783.
Schieffelin v. Carpenter (15 Wend.

N. Y. 400), 878, 898, 1193, 1201,

1204.
Schiff V. Potzlitzer (101 N. Y.

Sui)p. 249), 831.

Schilling v. Holmes (23 Cal. 227),

169.
Schlavone v. Callahan (102 N. Y.

Supp. 538), 848.
Schlemmer v. North (32 Mo. 206),

1244.
Schlitz Brewery Co. r. Nielson

(110 N. W. Rep. 746), 750.
Schloss V. Schloss (11 Det. Leg.

N. 249), 1340.
Schlumpf V. Sasake (38 Wash.

278), 587.
Schmalzried v. White (97 Tenn.

36), 783, 915.
Schmidt v. Cook (12 Misc. Rep.

449), 824.
Schmidt v. Pettit (8 D. C. 179),

883, 892.
Schmitt v. Cassilius (31 Minn. 7),

1463.
Schneider v. Lord (62 Mich. 141),

133,146.
Schneider v. White (12 Oreg.

503), 533.
Schofield V. Hincks (58 L. J. Q. B.

147), 764.
Scholtz V. Dankert (69 Wis. 416),

464.
School Dist. V. Batsche (106 Mich.

330), 232, 300, 307.
School District v. Long (10 Atl.

Rep. 709), 927.
Schott V. Harvey (105 Pa. St.

222), 917.
Schreiber v. Goldsmith (70 N. Y.

Supp. 236), 284.
Schroder v. Gemeinder (10 Nev.

355), 989.
Schroeder v. King (38 Conn. 78).

756.
Scbuck V. Schaub (84 N. Y. Supp.

896). 1379.
Schuetz v. Bailey (40 Me. 69), 97.
Schuisler v. Ames (16 Ala. 73),

1223.
Schulte V. Schoring (2 Wash. St.

127),334, 341, 496.

TABLE OP CASES CITED.

CXCV

Freferexces are to pages.]

Schumacher v. Pabst Brewing Co.

(78 Minn. 50), 94.
Schurz V. McMenamy (82 Iowa,

432), 1467.
Schutz V. Corn (5 N. Y. St. Rep.

191), 862.
Schuykill, etc. Co. (58 Pa. St.

304), 958.
Schuyler v. Coach Co. (29 W. N.

C. 343), 1444.
Schuyler v. Leggatt (4 Cow. N. Y.

60), 146, 152, 196.
Schuylkill, etc. Co. v. Schmoele

(57 Pa. St. 271), 697, 701.
Schwandt v. Metzger Lindseed Oil

Co. (93 111. App. 365), 804, 859.
Schwarze v. Mahoney (97 Cal.

131), 947.
Schwartz' Estate (14 Pa. St. 42),

51.
Schwartz v. Monday (98 N. Y.

Supp. 978), 807.
Schwartz v. Salter (40 La. Ann.

264), 844.
Schwoerer v. Connelly (88 N. Y.

Supp. 818), 7'36.
Scobey v. Walker (114 Ind. 254),

351.
Scoten V. Brown (4 Har. Del.

324), 382.
Scott V. Beecher (91 Mich. 590),

1210, 1214, 1215.
Scott V. Bourdillion (5 Bos. & Pul.

213), 604.
Scott V. Brown (69 J. P. 89),

1027, 1030.
Scott V. Elkins (83 N. C. 424),

951.
Scott V. Fisher (4 T. B. Mon. Ky.

387), 552.
Scott V. Fox Optical Co. (38 Pitts.

L. J. 368). 412.
Scott V. Gallagher (14 S. & R. Pa.

333), 497.
Scott V. Haversfraw (135 N. Y.

141), 895, 914.

Scott V. Hawsman (21 Fed. Cas.

No. 12,532), 1195.
Scott V. Levy (6 Lea, Tenn. 662),

948.
Scott V. Liverpool (3 De Gex & J.

334), 572.
Scott V. Montells (109 N. Y. 1),

584.
Scott V. Renfro (106 Ala. 611),

1432.
Scott V. Simons (54 N. H. 426),

847, 1142, 1176.
Scott V. Slaughter (35 Tex. Civ.

App. 524), 1046.
Scott v. State (29 Ga. 263), 778.
Scott V. Willis (122 Ind. 1), 156,

369.
Scott Bros. V. Flood's Trustee (99

S. W. Rep. 967), 1354.
Scottish Mortg. Co. v. Taylor (74

S. W. Rep. 564), 252.
Scrantin v. Booth (29 Barb. N. Y.

171), 519.
Scruggs v. Railroad Co. (108 U. S.

368), 1267, 1271.
Sculley v. Porter (57 Kan. 322),

1402,1429.
Seaboard Rl. Co. v. Fuller (67 N.

Y. Supp. 146), 1142, 1176.
Seabrook v. Moyer (88 Pa. St.

417), 1178.
Seagram v. Knight (1867, 2 Ch.

App. 628), 726.
Sealey v. Maris (29 S. W. Rep.

828), 960.
Seaman v. Aschermann (51 Wis.

678), 266.
Seaman v. Civill (45 Barb. N. Y.

267). 453.
Seaman v. Ward (1 Hilt. N. Y. 9).

519.
Sear v. House Society (50 L. J.

Ch. 77), 1045.
Searle v. Powell (89 Minn. 278),

160.163.
Sears v. Smith "(3 Colo. 287), 378.

excvi

TABLE OF CASES CITED.

[references are to pages.]

Seaver v. Thompson (189 111. 158),

455.
Seavey v. Jones (43 N. H. 441),

447.
Sebastian v. Hill (51 111. App.

272), 150, 151.
Sec.ar, In re (18 Fed. Rep. 319),

1122.
Secar v. Pestana (37 111. 525), 141.
Second Nat. Bank v. Druiger (2

N. J. Law J. 115), 1441.
Second Nat. Bank v. Merrill (69

Wis. 501), 133, 1268, 1288.
Security Trust Co. v. Liberty
Building Co. (89 N. Y. Supp.
340), 1013.
Seddon v. Senate "(13 East, 63),

698.
Seeley v. Alden (6 Pa. St. 352),

686.
Seem v. McLees (24 111. 192), 159,

163.
Seers v. Hind (1 Ves. Jr. 294),

1065.
Seftbn V. Juillard (71 N. Y. Supp.

348), 1162.
Segal V. Ensler (16 Misc. Rep.

43), 562.
Seiber v. Blanc (76 Cal. 173), 782,

861.
Seidel v. Bloesser (77 Mo. App.

172), 397, 416, 442.
Seidenberg v. Jones (63 Ga. 612),

840.
Seigel V. Neary (77 N. Y. Supp.

854), 1131, 1145, 1156.
Seisel v. Folmar (103 Ala. 491),

1408, 1435.
Seitzinger v. Alspach (42 L. I.

68), 573.
Selby V. Graves (h. R. 3 C. P. 50),

272,1340.
Selby V. Selby (3 Mer. 2), 388.
Selden v. Camp (95 Va. 527),

1386.
Seld'onridge v. Connoble (32 Ind.
375), 342.

Semple v. Goehringer (52 Minn.

428), 1273.
Semmes v. United States (26 Ct.

CI. 119), 36.
Senae v. Pritchard (5 La. 480),

1358.
Serio v. Murphy (99 Md. 545), 854.
Settle V. Henson (Morris, Iowa,

111), 938.
Setton V. Slade (7 Ves. 265), 982.
Seudly v. Murray (34 Mo. 420),

146.
Severn's Case (1 Leon, 122), 603.
Sevier v. Shaw (25 Ark. 417),

1439.
Sevier v. Shaw (50 Ga. 213), 1409.
Sewell V. Moore [166 Pa. St. 570),

917.
Sexton V. Board of Sup'rs of Coa-
homa (86 Miss. 380), 112.
Sexton V. Carley (147 111. 269).

948.
Sexton V. Chicago Storage Co.

(129 111. 318), 1048.
Seyfert v. Bean (83 Pa. St. 450),

108.
Seymour v. Delancy (6 Johns. Ch.

N. Y. 223), 1002.
Seymour v. Wyckoff (10 N. Y.

213), 101.
Shafer v. Smith (7 Har. & J. 67),

439.
Shaffer v. State Nat. Bank (37 La

Ann. 242), 440.
Shaft V. Carey (107 Wis. 273),

421, 697.
Shahan v. Herzberg (73 Ala. 59),

1199,1309.
Shakel v. Hennessey (57 111. App.

332), 106.
Shallies v. Wilcox (4 Thomp. & C.

N. Y. 591), 564.
Shand v. McCloskey (27 Pa. Su-
per. Ct. Rep. 260), 1222.
Shanfelter v. Horner (81 Md.

621), 554.

TABLE OF CASES CITED.

CXCVll

[reiekences aee to pages.]

Shanks v. Greenville (57 Miss.

168), 1441.
Shannon v. Burr (1 Hilt. N. Y.

39), 689.
Shannon v. Grindstaff (11 Wash.

St. 536), 1053, 1096.
Share v. Porter (3 T. R. 13), 128,

216.
Shares v. Brooks (81 Ga. 468),

691.
Sharp V. Kinsman (18 S. C. 108),

1311.
Sharp V. Milligan (23 Beav. 419),

365.
Sharp V. Palmer (31 S. C. 444),

1466.
Sharp V. Sharp (Cro. Eliz. 483),

112.
Sharps v. Kelly (5 Denio, N. Y.

431), 973.
Sharpless' Estate (8 Lane. Bar.

Pa. 125), 523.
Sharpless v. Murphy (7 Del. Co.

Pa. 22), 583.
Shattuck V. Lovejoy (8 Gray,

Mass. 204), 644.
Shaw V. Bowman (91 Pa. St. 414),

1324.
Shaw V. Coffin (14 C. B. N. S.

372), 622, 1055.
Shaw V. Cummiskey (7 Pick.

Mass. 576), 689.
Shaw V. Cunningham (16 S. C.

631), 351.
Shaw V. Foster (27 L. T. 281),

628.
Shaw V. Hall (79 Mich. 86), 514.
Shaw V. Hoffman (25 Mich. 162),

172, 220, 1185.
Shaw V. Partridge (17 Vt. 626),

22, 492, 615.
Shaw V. Shaw (Vern. & Scrir.

606), 13.
Shawhan v. Long (26 Iowa, 488),

49.
Shawmut Nat. Bank v. Boston

(118 Mass. 125), 1343.

Sheaff V. Husted (60 Kan. 770),

488.
Shealey v, Clark (117 Ga. 794),

1453.
Shear v. Fisher (27 111. App. 464),

731.
Shearer v. Winston (33 Miss.

149), 931, 946.
Sheary v. Adams (18 Hun, N. Y.

181), 876.
Sheble v. Curdt (56 Mo. 437),

1425, 1457.
Shedlinsky v. Budweiser Brewing

Co. (163 N. Y. 137), 774.
Sheen v. Ritchie (5 M. & W. 175),

1243.
Sheets v. Jozner (11 Ind. App.

209), 605.
Sheets v. Selden (7 Wail. U. S.

423), 848.
Shelby v. Heme (6 Yerg. Tenn.

513), 489, 615, 884.
Sheldon v. Connor (48 Me. 584),

1434.
Sheldon v. Davey (42 Vt. 637),

141.
Sheldon v. Edwards (35 N. Y.

279), 1233.
Sheldon v. Hamilton (22 R. I.

230), 427, 428, 823.
Sheldon v. Sherman (42 N. Y.

484), 434.
Shellar v. Shivers (171 Pa. St.

569), 1252, 1265.
Shelton v. Codman (3 Cush. Mass.

318), 1081.
Shelton v. Durham (76 Mo. 434),

353.
Shelton v. Esluva (6 Ala. 230),

923.
Sheo V. Seeling (89 Mo. App. 146),

99.
Shepard v. Martin (31 Mo. 492),

920.
Shepard v. Rosenkranz (109 Wis.

58), 383, 1265, 1380.

€XCV1U

TABLE OF CASES CITED.

[references ake to pages.]

Shepard v. Spaulding (4 Mete.

Mass. 416), 1231, 1265.
Shepardson v. Elmore (19 Wis.

424), 955, 1015.
Shepherd v. Taylor (105 Ala.

507), 1435.
Sherbourne v. Jones (20 Me. 70),

218, 322, 1306.
Sheridan v. Farsee (106 Mo. App.

495), 840.
Sherlock v. Thayer (4 Mich. 355),

523.
Sherman v. Ballon (8 Cow. N. Y.

304), 90.
Sherman v. Fall R. I. Works (2

Allen, Mass. 524), 705.
Sherman v. Fisher (11 Detroit,

Mich. Leg. N. 589), 934.
Sherman v. Ludin (79 App. Div.

37), 782.
Sherman v. Wilder (106 Mass.

537), 774, 776.
Sherman v. Williams (113 Mass.

481), 397.
Shermer v. Paciells (161 Pa. St.

69), 585.
Sherwood v. Gardner (2 City Ct.

Rep. N. Y. 88), 576.
Sherwood v. Harral (39 Conn.

333), 1035, 1040.
Sherwood v. Seaman (15 N. Y. Su-
per. Ct. Rep. 127), 847.
Shields v. Atkins (2 Atk. 560),

229.
Shields v. Horback (49 Neb. 262),

964.
Shields v. Lozear (34 N. J. Law,

496), 936.
Shields v. Ohio (95 U. S. 319), 70.
Shiff V. Ezekiel (23 La. Ann. 383),

1464.
Shindelback v. Moon (32 Ohio St.

264), 822.
Shine V. CxOugh (1 Ball & Beat,

d36),1278.
Shinkle v. Blrney (68 Ohio St.

328), 476, 783.

Shinn v. Guyton (109 Mo. App.

557), 493.
Shinn v. Holmes (25 Pa. St. 142),

24.
Shipley v. Associates (101 Mass.

251), 808, 813.
Shipley v. Caples (17 Md. 179),

440.
Shipley v. Smith (162 Ind. 526),

19, 24.
Shipman v. Beers (2 Abb. N. C.

435), 410.
Shipman v. Mitchell (64 Tex,

174), 142, 152.
Shippey v. Derision (5 Esp. 10),

385.
Shirack v. Shirack (44 Kan. 563),

122.
Shirk V. Adams (130 Fed. Rep.

441), 1036.
Shirk V. Hoffman (57 Minn. 230),

150,164.
Shirley v. Newman (1 Esp. 266),

159, 176.
Shirling v. Kennon (Ga. 46 S. E.

Rep. 630), 1446, 1447.
Shoemaker v. Crawford (82 Mo.

App. 487), 30g, 677, 696.
Shoenberger's Ex'rs v. Hay (40

Pa. St. 132), 604.
Shoninger v. Mann (219 111. 242),

812, 818, 819.
Shouse V. Krusor (24 Mo. App.

279), 49, 284.
Shrewsbury v. Gould (2 B. & Aid.

487), 603.
Shroder v. Brenneman (23 Pa. St.

348), 439.
Shropshire v. Behrens (77 Tex.

275), 65.
Shuffler v. Turner (111 N. C. 297),

51.
Shughart T. Moore (78 Pa. St.

469), 460.
Shult V. Barker (12 S. & R. Pa.

272), 717.

TABLE OF CASES CITED.

CXCiX

[references ake to pages.]

Shuman v. Smith (100 Ga. 415),

1184.
Shumway v. Collins (6 Gray,

Mass. 227), 733, 1180.
ShurtlefE v. Rile (140 Mass. 213),

15.
Shuster v. Robinson (3 Har. Del.

50), 1441.
Shute V. Bills (191 Mass. 433),

465, 807.
Shy V. Brackhouse (7 Okl. 35),

942.
Sibbald's Case (83 N. Y. 384), 358.
Sibley v. Lawrence (46 Iowa,

563), 122.
Sickles V. Shaw (76 N. Y. Supp.

319), 525.
Sldebotham v. Holland (64 L. J.

Q. B. 200), 172.
Siefke v. Koch (31 How. Pr. N. Y.

383), 645, 1059.
Siegel V. Colby (61 111. App. 315),

456.
Siggins V. McGill (72 N. J. L.

263), 804, 813.
Slglar V. Malone (3 Humph. Tenn.

16), 291, 944.
Sigmund v. Howard Bank (29 Md.

324), 672, 1158, 1160.
Sigmund v. Newspaper Co. (82

111. ), 867.

Sigur V. Lloyd (1 La. Ann. 421),

874.
Silbar v. Ryder (63 Wis. 106),

362, 877.
Silber v. Larkin (94 Wis. 9),

1132, 1142.
Sillers v. Lester (48 Miss. 524),

1428.
Silsby V. Allen (43 Vt. 172), 133.
Silsendeger v. Scheich (55 Mich.

468), 220.
Silva V. Bair (141 Cal. 599), 1194,

1238.
Silva V. Campbell (84 Cal. 420),

646.

Silvermann v. Lurie (32 Misc.

Rep. 734), 1176.
Silvey v. Sumner (61 Mo. 253),

956,1228.
Sigmund v. Newspaper Co. (82 111.

App. 178), 151.
Simanek v. Nemetz (120 Wis. 42),

1317.
Simers v. Saltus (3 Denio, N. Y.

214), 956, 123?.
Slmkin v. Ashurst (1 Cr. M. & R.

261), 229, 233.
Simmons v. Jarman (122 N. C.

195), 140, 172.
Simmons v. McAdaras (6 Mo.

App. 297), 1233, 1234.
Simmons v. Pope (84 N. Y. Supp.

973), 262.
Simmons v. Simmons (46 Ala.

304), 1096.
Simmons v. Trumbo (9 W. Va.

358), 342.
Simon v. Seward (54 N. Y. super.

Ct. 405), 840.
Simons v. Detroit Twist Drill Co.

(11 Detroit Leg. N. 141), 219.
Simonson v. Burr (121 Cal. 582),

122.
Simonton v. Loring (68 Me. 164),

808,838.
Simpkins v. Cardele Compress Co.

(113 Ga. 1050), 887.
Simpkins v. Rogers (15 111. 397),

1326.
Simpson v. Applegate (75 Cal.

342), 212.
Simpson v. Biffle (63 Ark. 289),

122.
Simpson v. Butcher (1 Doug.

50), 8.
Simpson v. Gutteridge (1 Madd.

609), 55.
Simpson v. Moorhead (65 N. J.

Eq. 623), 1044, 1079.
Simpson v. Mundee (3 Kan. 172),

334.

cc

TABLE OF CASES CITED.

[references are to pages.]

Sims V. Eastland (3 Head, Tenn.

368), 961.
Sinclair v. Baggley (4 M. & W.

312), 343.
Sinclair v. Jackson (8 Cow. N. Y.

543), 108.
Singer Mfg. Co. v. Malean (105

Ala. 316), 66.
Sinley v. Brown (4 Pick. Mass.

137), 561.
Sioux Bank v. Honnold (85 Iowa,

352), 1447.
Sipe V. Bartlett (12 Ohio C. D.

226), 296.
Sire V. Long Acre Square Bldg.

Co. (50 Misc. Rep. 29), 544.
Sire V. Rumbold (39 N. Y. St. Rep.

85), 460.
Sisson V. Kaper "(75 N. W. Rep.

),480.

Sittel V. Wright (122 Fed. Rep.

434), 177, 950.
Skally V. Shute (132 Mass. 367),

1131, 1136, 1180.
Skidmore v. Hay (13 Hun, N. Y.

441), 1015.
Skinner v. Skinner (38 Neb. 756),

258,573.
Skull V. Glenister (11 W. R. 368),

416.
Slater v. Stone (Cro. Jac. 645),

861.
Slattery v. Slattery (120 Iowa,

717), 958.
Slaughter v. Mallet Land & Cattle

Co. (72 C. C. A. 436), 986.
Slee V. Manhattan Co. (1 Paige,

N. Y. 48), 1104.
Sleigh V. Bateman (Cro. Eliz.

487), 1197.
Slingsby's Case (5 Rep. 18b), 610.
Slingerland v. Morse (7 Johns. N.

Y. 474), 537.
Sloan V. Cantwell (5 Cold. Tenn.

(571), 623.
Sloan V. Hudson (119 Ala. 27),

1432.

Slocum V. Brown (22 Fed. Cas.

No. 12,934), 878.
Slocum V. Seymour (36 N. J. Law,

138), 1306, 1336.
Sloper V. Saunders (29 L. J. N. S.

Ex. 275), 193.
Small V. Clark (97 Me. 304), 490.
Smallman v. Agbarow (Cro. Jac.

417), 25.
Smart v. Allegaret (14 Phila. Pa.

179), 1191.
Smiley v. McLauthlin (138 Mass.

363), 560.
Smiley v. Van Winkle (6 Cal.

605), 1048, 1231.
Smith V. Ankrim (13 S. & R. Pa.

39), 557.
Smith V. Atkins (18 Vt. 461), 1404.
Smith V. Aude (46 Mo. App. 631),

500.
Smith V. Barber (89 N. Y. Supp.

317), 673, 691.
Smith V. Bell (44 Minn. 524), 139,

1381.
Smith V. Berndt (1 N. Y. Supp.

108), 62.
Smith V. Blake (88 Me. 241), 513.
Smith V. Boston (36 N. H. 458),

1273.
Smith V. Boyle (66 Neb. 192),

1301.
Smith V. Brinker (17 Mo. 148),

1087.
Smith V. Brown (5 Rich. Eq. S. C.

291), 874.
Smith & Bustard's Case (1 Leon,

141),r.34.
Smith V. Caldwell (78 Ark. 333),

1286.
Smith V. Caputo (14 Misc. Rep. 9),

252.
Smith V. Carroll (4 Greene, Iowa,

146), 1259.
Smyth V. Carter (8 Beav. 78), 713.
Smith V. Chance (2 B. & Aid. 753),

1335.
Smith V. Clark (9 Dowl. 202), 175.

TABLE OP CASES CITED.

CCl

[references are to pages.]

Smith V. Clark (97 Me. 304), 629,

645.
Smith V. Colby (136 Mass. 532),

253.
Smith V. Collins (41 So. Rep. 825),

471.
Smith V. Cooper (39 Kan. 446),

934.
Smith V. Crosland (106 Pa. St.

413), 920.
Smith V. Day (2 M. & W. 684),

111, 241.
Smith V. Dayton C94 Iowa, 102),

548, 1405, 1434, 1449.
Smith V. Dodds (35 Ind. 452), 47.
Smith V. Donnelly (87 N. Y. Supp.

893), 785.
Smith V. Dunn (75 Mo. 559), 122.
Smith V. Egginton (43 L. J. C. P.

140), 489.
Smith V. Eldridge (15 Com.

Bench, 236), 194, 577.
Smith V. Faust (2 Man. & G. 84),

577.
Smith V. Faxon (156 Mass. 589),

795.
Smith V. Fortiscue (48 N. C. 65),

685.
Smith V. Fyler (2 Hill, N. Y. 648),

505.
Smith V. Gayle (58 Ala. 600). 976.
Smith V. Gibson (25 Neb. 511),

992.
Smith V. Goodman (149 111. 75),

1060, 1061.
Smith V. Gummere (39 N. J. Eq.

17), 15.
Smith V. Hall (19 111. App. 17),

567.
Smith V. Hall (11 Me. 295), 563.
Smith V. Harrison (42 Ohio St.

ISO), 615.
Smith V. Hart (68 N. Y. Supp.

1127), 1400.
Smith V. Hartogg (15 Rep. 641),

557.

Smith V. Heldman (93 Md. 343),

551.
Smythe v. Henry (41 Fed. Rep.

705), 933.
Smith V. Hess (48 N. E. Rep.

1030), 1282.
Smith V. Houston (16 Ala. Ill),

235.
Smith V. Huddleston (103 Ala.

223), 1440.
Smith V. Humble (15 C. B. 321),

1007.
Smith V. Ingram (90 Ala. 529),

252, 253, 1060.
Smith V. Kerr (108 N. Y. 31), 556,

1199,1347.
Smith V. Kerr (33 Hun, 567), 555.
Smith V. Kincaid (1 111. App. 620),

873.
Smith V. King (22 Ala. 558), 51,

52.
Smith V. Leighton (38 Kan. 544),

1315.
Smith V. Low (1 Atk. 489), 10, 15,

952.
Smith V. Maberry (61 Ark. 515),

318. 320, 1402.
Smith V. Mapleback (1 T. R. 441),

1197.
Smith V. Marrable (11 M. & W. 5),

784, 785, 1149.
Smith V. Martin (3 Saund. 400),

446.
Smith V. Mattingly (96 Kj'. 228),

726.
Smith V. McGowan (3 Barb. N. Y.

404), 1237.
Smith V. McLean (22 111. App.
451). 864. 1136. 1155, 1340, 1344.
Smith V. Meyer (25 Ark. 609),

1436.
Smith V. Miller (49 X. J. Law,

521), 641, 642.
Smith V. Morse (20 La. Ann. 220),

326.
Smith V. Mundy (IS Ala. 182),
923.

ceil

TABLE OF CASES CITED.

[references are to pages.]

Smith V. Neale (2 Com. Bench,

N. S. 67), 386.
Smith V. Newman (62 Kan. 318),

956.
Smith V. Niles (20 Vt. 315), 115.
Smith V. Niver (2 Barb. N. Y.

180), 1195, 1213.
Smith V. Ogg (16 Cal. 88), 182.
Smith V. Park (31 Minn. 70), 53,

1264, 1265.
Smith V. Pendergast (26 Minn.

318), 1198, 1199.
Smith V. Perry (29 N. J. L. 74),

97.
Smith V. Phillips (43 Atl. Rep.

183), 380.
Smith V. Phillips (29 S. W. Rep.

358), 696.
Smith V. Phillips Church (107 N.

Y. 610), 913.
Smith V. Porter (10 Gray, Mass.

66), 343, 351.
Smith V. Putnam (3 Pick. Mass.

221), 1054, 1065, 1322.
Smith V. Raleigh (3 Camp. 513),

1178, 1180.
Smith V. Rice (56 Ala. 417), 309.
Smith V. Robinson (5 Reports,

469), 1029.
Smith V. Rowe (31 Me. 312), 221.
Smith V. St. Michael (3 E. & E.

383), 283.
Smith V. Scanlon (21 Ky. L. Rep.

169), 934.
Smith V. Schulenberg (34 Wis.

41), 549.
Smith V. Schultz (89 Cal. 526),

809.
Smith V. Sharpe (Busbee, N. C.

91), 714.
Smith V. Shepard (15 Pick. Mass.

147), 1170, 1182, 1183.
Smith V. Simons (1 Root, 318),

270.
Smith V. Singleton (71 Ga. 68),

199,236.

Smith V. Smith (62 Mo. App. 556),

152, 164.
Smith V. Smith 181 Tex. 45), 920.
Smith V. Snyder (168 Pa. St. 514),

165,176.
Smith V. State (6 Gill. Md. 425),

778.
Smith V. Stewart (6 Johns. Ky.

46), 317, 318.
Smith V. Tabor (46 Hun, N. Y,

313), 1404.
Smith V. Tankersfey (20 Ala. 212),

309.
Smith V. Taylor (9 Ala. 633), 31.
Smith V. Thayer (56 Minn. 93),

1199.
Smith V. Thomas (82 Tenn. 324),

49.
Smith V. Thurston (10 Mo. App.

48), 1184.
Smith V. Towart (2 Man. & G.

841), 577.
Smith V. Tritt (1 Dev. & B. N. C.

241), 291, 1329.
Smith V. Wagner (9 Misc. Rep.

122), 1060.
Smith V. Werwenz (185 Mass.

229), 297.
Smith V. Wheeler (8 Daly, N. Y.

135), 1213.
Smith V. Whitbeck (13 Ohio St.

471), 638.
Smith V. Whitney (147 Mass.

479), 1252.
Smith V. Wiggln (48 N. H. 105),

439.
Smith V. Wiley (1 Baxt. Tenn.

418), 867.
Smith V. Wise (58 111. 141), 1175,

1180.
Smith's Appeal (69 Pa. St. 474),

716.
Smithwick v. Ellison (2 Ired. N. C.

326), 1333.
Smoot V. United States (38 Ct. CI.

418), 36.
Smoot V. Wathen (8 Mo. 522), 90.

TABLE OF CASES CITED.

CCIH

[references are to pages.]

Smoyer v. Roth (13 Atl. Rep. 191),

978.
Smucker v. Grinberg (27 Pa. Su-
per Ct. Rep. 531), 1222.
Smusch V. Kohn (22 Misc. Rep.

344), 1250.
Smythe v. Sprague (149 Mass. 10),

391.
Snead v. Tietjen (24 Pac. Rep.

324), 463.
Snedaker v. Powell (32 Kan. 395),

302.
Snedeker v. Warring (12 N. Y.

170), 1256.
Snell V. Rickette (28 Neb. 616),

1400, 1403.
Snideman v. Snideman (118 Ind.

162), 156.
Snodgrass v. Chestnut (105 Ala.

149), 694.
Snodgrass v. Reynolds (79 Ala.

452), 673, 694.
Snook & Austin Fur Co. v. Steiner

(113 Ga. 363), 416, 442.
Snook V. Steiner (117 Ga. 363),

369.
Snook V. Sutton (10 N. J. Law,

133), 15.
Snow V. Perkins (60 N. H. 493),

1334.
Snow V. Pulitzer (142 N. Y. 263),

1146,1185.
Snowhill V. Diamond (77 N. E.

Rep. 412), 535.
Snowhill V. Reed (49 N. J. L. 292),

463, 897, 898.
Snowhill V. Snowhill (23 N. J. L.

447), 162.
Snyder v. Gordon r46 Hun, N. Y.

538), 795, 796.
Snyder v. Harding (34 Wash.

236), 28.
Snyder v. Hersberg (33 Leg. Int.

158), 413.
Snyder v. May (19 Pa. St. 235),

92.

Snyder v. Parker (75 Mo. App.

529), 1213.
Snyder v. Webb (3 Cal. 83), 21.
Soames v. Nicholson (71 Law J.

K. B. 24), 165, 173.
Sohier v. Coffin "(101 Mass. 179),

111.
Sohier v. Eldredge (103 Mass.

345), 49.
Soloman v. Evans (3 McCord, S.

C. 274), 342.
Solomon v. Fantozzi (43 Misc.

Rep. 61), 1132.
Sontag V. O'Hare (73 111. App.

432), 859.
Sorsbie v. Park (12 Mee. & Wei.

146), 609.
Souders v. Vansickle (8 N. J. Law,

313), 482.
Soulard v. Peck (49 Mo. 477),

1018.
Soule V. Union Bank (45 Barb.

N. Y. Ill), 1042.
Souter V. Drake (5 Barn. & Adol.

992), 1077.
South Baltimore Co. v. Muhlbach

(69 Md. 395), 380.
South V. Marcum (22 S. W. Rep.

844), 958.
South Cong. Meeting House v.

Hilton (11 Gray, Mass. 407).

624.
South's Adm'x v. Marcum (15 Ky.

Law, 339), 481.
Southard v. Railroad Co. (26 N. J.

Law, 21), 640.
Southern Development Co. v. Sil-
ver (125 U. S. 250), 475.
Southern Oil Co. v. Colquitt (69

S. W. Rep. 169), 124.
Southern Ry. Co. v. Horine (Ky.

1904, 49 S. E. Rep. 285), 686.
Southwick V. Ellison (2 Ired.

Law, N. C. 326), 1332.
Soux Bank v. Honnold (85 Iowa,

352), 1404.

CCIV

TABLE OF CASES CITED,

[rrferexces are to pages.]

Soward v. Leggett (7 Car. & P.

613), S88.
Sowles V. Can- (69 Vt. 414), 1224.
Sowles V. Martin (76 Vt. 180),

311,316.
Spafford v. Meagley (1 Ohio Dec.

364), 885.
Spaine v. Stiner (81 App. Div.

481), 828.
Spalding v. Hall (6 D. C. 123),

158,678.
Spalding v. Humford (Mo. App.

281), 1349.
Spalding Hotel Co. v. Emerson (69

Minn. 292), 758.
Span V. Ely (8 Hun, 258), 795.
Spann v. Eagle Machine Works

(87 Ind. 474), 571.
Spangler v. Rogers (123 Iowa,

724), 1377.
Sparks v. Bassett (49 N. Y. Super.

Ct. 270), 876.
Sparks v. Smith (2 Vern. 275),

1106.
Sparrow v. Pond (49 Minn. 412),

1306.
Spaulding v. Abbott (55 N. H.

423), 446, 447.
Spear v. Fuller (8 N. H. 174), 622.
Speckman v. Boehm (36 App.

Div. 262), 788.
Speckles v. Sax (1 E. D. Smith,

N. Y. 253), 459, 856, 1152.
Speed V. Brooks (30 Ky. 119),

349.
Speers v. Black (34 Mo. 101),

1279.
Spellman v. Banigan (36 Hun, N.

Y. 174), 804, 860.
Spencer v. Burton (5 Blackf. Ind.

57). 672, 1190.
Spencer v. Campbell (9 W. & S.

Pa. 32), 904.
Spencer's Case (5 Rep. 16), 510,

614.
Spencer v. Commercial Co. (39

Wash. 22), 1287.

Spencer v. Hamilton (113 N. C.

49), 879.
Spencer v. Stevens (IS Misc. Rep.

112), 616.
Spendlomes v. Burkitt (Hob. 7),

61.
Spero V. Levy (43 Misc. Rep. 24),

859.
Sperry v. Miller (8 N. Y. 336),

1239.
Sperry v. Sperry (8 N. H. 477),

638,1230.
Spicer v. Lea (1 East, 312), 172.
Spielman v. Kilest (36 N. J. Eq.

199), 392, 1111.
Spies V. Voss (16 Daly, 171), 1207,

1210, 1215.
Spofford V. United States (32 Ct.

CI. 452)," 35, 164.
Sposato V. City of New York (75

App. Div. 304), 684.
Sprague v. Quinn"(108 Mass. 553),

189.
Sprague v. Rooney (104 Mo. 347),

773.
Sprague N. Bank v. Railroad Co.

(48 N. Y. Supp. 65), 288, 1297.
Spratt V. Early (69 S. W. Rep.

13), 122.
Spratt V. Jeffry (10 B. & C. 249),

1076.
Spring Brook Ry. Co. v. Lehigh

Co. (181 Pa. St. 294), 518.
Springer v. Chicago R. E. Loan

Co. (202 III. 17), 644. 1080.
Springer v. Citizens' Natural Gas

Co. (145 Pa. St. 430), 1076.
Si)ringer v. Cooper (11 III. App.

267), 254.
Springer v. De Wolf (194 111. 218),

1092.
Springer v. Ford (88 111. App.

529), 818.
Springstein v. Schermerhorn (12

.lohns. N. Y. 357), 1195, 1226.
Sl)yvy V. Topham (3 East, 115),

367.

T.VBLE OF CASES CITED.

CCV

[references aee to pages.]

Squire v. Ferd. Heim Brewing Co.

(90 Mo. App. 462), 262, 1213.
Squier v. Mayer (2 Freem. 249),

1256.
Squire v. Leonard (81 N. E. Rep.

880), 1054.
Squires v. Huff (3 A. K. Marsh.

Ky. 18), 189.
Staber v. Collins "(124 Iowa, 543),

1432, 1457, 1459.
Stables v. Ashley (1 Bos. & P. 49),

798.
Stack V. Harris (111 Ga. 149), 805.
Stackberger v. Mosteller (4 Ind.

461), 378.
Stackpole v. Curtis (32 Me. 383),

437.
Stackpoole v. Parkinson, Jr. (R.

8 C. L. 561), 171.
Stacy V. Bostwick (48 Vt. 192),

965,966.
Stacy V. Vermont Cent. R. Co. (32

Vt. 551), 318.
Stadel V. Aikins (65 Kan. 82),

1431.
Stafford v. Adair (57 Vt. 63), 192.
Stafford v. Pearson (26 La. Ann.

658), 1418.
StaiTord v. Staunton (88 Ga. 298),

464, 1340.
Stafford Corporation v. Til (4

Bing. 75), 579.
Stagg V. Eureka T. & Cr. Co. (56

Mo. 317), 934.
Stagg V. Jackson (1 N. Y. 206),

51.
Staines v. Morris (1 V. & B. 11),

520.
Siallard v. Gushing (76 Gal. 472),

440.
Stamford Bank v. Benedict (15

Conn. 437), 552.
Stamps V. Gilman (43 Miss. 456),

1400,1465.
Standard Brewery v. Kelley (66

111. App. 267), 592.

Standen v. Christmas (10 L. J. Q.

B. 135), 639, 489, 576.
Standley v. Stevens (66 Gal. 541),

947.
Stanley v. Towgood (3 Bing. N.

C. 4), 893, 857, 889.

Stanley v. Turner (68 Vt. 315),

527, 554.
Stannard v. Forbes (6 A. & E.

572), 698.
Stanton v. Allen (32 S. C. 587),

756.
Stanton v. Willson (3 Day, Conn.

37), 18.
Stantz V. Protzman (84 111. App.

434), 388.
Staples V. Emery (7 Greene, Me.

201), 1332.
Staples V. Wheeler (38 Me. 372),

342.
Starke v. J. M. Guffey Pet. Co. (86

S. W. Rep. 1), 69.
Starkey v. Horton (65 Mich. 96),

1396.
Starkweather V. Maginnis (196 111.

274), 1175.
Starr v. Jackson (11 Mass. 519),

679, 680, 689.
State V. Abraham (6 Iowa, 117),

778.
State V. Board of Public Works

(42 Ohio St. 607), 117.
State V. Boyce '(73 Md. 469), 805.
State V. Boyce (109 N. C. 739),

951.
State V. Curtis (4 Dev. & B. N. C.

222), 300.
State V. Elmore (68 S. C. 140),

1402, 1410.
State V. Flavell (24 N. J. Law,

370). 61.
State V. Forsythe (89 Mo. 667),

454.
State V. Frazier (79 Me. 95). 778.
State V. Gemmill (1 Houst. Del.

9), 1306.
State V. Hayes (59 N. H. 450), 24.

CCVl

TABLE OF CASES CITED.

[references are to pages.]

state V. Idler (54 N. J. Law, 467),

486.
State V. Martin (14 Lea, Tenn.

92), 1021.
State V. McClay (1 Har. Del. 520),

676.
State V. Page (1 Speers, S. C. 408),

303.
State V. Pottmeyer (33 Ind. 402),

434.
State V. Reeder (36 S. C. 497),

1419.
State ex rel. Attorney General v.

Schweickart (109 Mo. 346), 78.
State V. Sheppard (33 La. Ann.

1216), 1338.
State V. Shertinger (51 N. J. L.

452), 150.
State V. Skith (15 R. L 24), 778.
State V. Turner (106 N. C. 691),

1338.
State V. Vandever (2 Har. Del.

397), 1441.
State Trust Co. v. Casino Co. (46

N. Y. Supp. 292), 1110.
Stautz V. Protzman (84 111. App.

434), 527.
Stavely v. Alcock (16 Q. B. 636),

91.
Stead V. Dowher (10 Ad. & El.

57), 387.
Stearns v. Godfrey (16 Me. 158),

968.
Stearns v. Sampson (59 Me. 568),

1298.
Steams v. Stearns (1 Pick. Mass.

157), 51, 52.
Stedraan v. Bates (1 Ld. Raym.

640), 90.
Stedraan v. Gassett (18 Vt. 346),

232.
Stedraan v. Mcintosh (27 N. C.

571), 179.
Stedraan v. Paxton (18 Vt. 346),

141.
Steed V. Hinson (76 Ala. 298),

491.

Steefel v. Rothschild (179 N. Y,

273), 788, 789, 1240.
Steel V. Frick (56 Pa. St. 172),

310, 697.
Steele v. Bond (32 Minn. 14), 988.
Steele v. Buck (61 111. 343), 901.
Steen v. Scheel (46 Neb. 252),.

258, 1378, 1383.
Steen v. Wardsworth (17 Vt. 297),

941.
Stees V. Bergmeier (90 Minn.

513),138L
Stees V. Kranz (32 Minn. 313),

757, 1098.
Staff ens v. Earl (40 N. J. L. 128^,

150, 156, 159, 163, 172.
Stein V. Hauck (56 Ind. 65), 409.
Stein V. Rice (51 N. Y. Supp. 320),

1347.
Steinweg v. Biel (16 Misc. Rep.

47), 839.
Steketee v. Pratt (122 Mich. 80),

1207.
Stele V. Martin (4 B. & C. 273),

343.
Stenberg v. Willcox (12 Pickle,

Tenn. 163), 792, 805.
Stephens v. Adams (93 Ala. 117),

1411, 1449, 1450.
Stephen v. Bridges (6 Madd. 66),

1230.
Stephens v. Brown (56 Mo. 23),

155,182.
Stephens v. Eliot (Cro. Eliz. 4S4),

112.
Stephens v. Ely (162 N. Y. 79),

1287.
Stephens v. Graham (7 S. & R. Pa.

505), 343.
Stephens v. Hotham (1 Kay & J.

571), 1395.
Stephens v. Reynolds (6 N. Y.

454), 120, 503.
Stephens v. Taylor (36 S. W.

Rep. 1083), 83.
Stephenson v. Elliott (2 Ind. App.

233), 676.

TABLE OF CASES CITED.

CCVll

[references are to pages.]

Sterger v. Van Slclen (132 N. Y.

499), 837, 859.
Stern v. Murphy (102 N. Y. Supp.

797), 526, 1213.
Stern v. Sawyer (78 Vt. 5), 596.
Sternberg v. Burke (84 N. Y.

Supp. 862), 804.
Sterne, Ex parte (6 Ves. 156), 43.
Sterrett v. Wright (27 Pa. St.

259), 519, 575.
Stetson V. Briggs (114 Cal. 511),

348.
Stetson V. Day (51 Me. 434), 712.
Steuber v. Huber (107 App. Div.

599), 3, 945.
Stevens v. Lessa (50 App. Div.

547), 1112, 1118.
Stevens v. "Pantlind (87 Mich.

476), 1222.
Stevens v. Peirce (151 Mass. 207),

463, 782, 785.
Stevens v. Pinney (8 Taunt. 327),

582,
Stevens v. Raab (9 Mo. App. 573),

1183.
Stevens v. Rose (69 Mich. 259),

711.
Stevens v. Salamon (31 Misc.

Rep. 19), 406.
Stevens v. Taylor (97 N. Y. Supp.

925), 442, 444.
Stevenson v. Hancock (72 Mo.

612), 491, 1228.
Stevenson v. Lambard (2 East,

575), 1178.
Steward v. Keener (131 N. C. 486),

944.
Stewart v. Apel (5 Houst. Del.

189), 146.
Stewart v. Brand (23 Iowa, 477),

122.
Stewart v. Doughty (9 Johns. N.

Y. 108), 1306, 1310, 1315.
Stewart v. Finch (31 N. J. Law,

17), 258.
Stewart v. Garter (70 Md. 242).

121.

Stewart v. Lanier House (75 Ga.

582), 563, 857.
Stewart v. L. L R. Co. (102 N. Y,

601), 1080.
Stewart v. Murrell (65 Ark. 471),

163.
Stewart v. Perkins (3 Oreg. 508),

539.
Stewart v. Pier (58 Iowa, 15),

1279.
Stewart v. Roderick (4 Watts &

S. Pa. 188), 948.
Stewart v. Sprague (71 Mich. 50),

1175, 1215.
Stewart v. Winters (4 Sandf. Ch.

N. Y. 587), 729, 735, 757.
Stickney v. Burlce (64 N. H. 377),

221.
Stickney v. Stickney (77 Iowa,

699), 312.
Stiefol V. Rothschild (72 N. Y,

Supp. 171), 1239.
Stiger V. Monroe (109 Ga. 457),

1134.
Stiles V. Brown (16 Vt. 564), 349.
Stillman v. Harvey (47 Conn. 26),

1057.
Still's Estate (2 Pa. Dist. Rep.

105), 54.
Stines v. Dorman (25 Ohio St.

580), 742.
Stinson v. Stinson (38 Me. 593),

49.
Stirn V. Nash (19 Civ. Pro. R. N.

Y. 184), 413.
Stobie V. Dills (62 111. 432), 60.
Stockdale v. Ascherberg (73 L. J.

K. B. 206), 1028.
Stocker v. Planet Building Society

(27 W. R. 877), 862.
Stockett V. Howard (34 Md. 121),

616.
Stockton V. Stockton (40 Ind.

225), 1195.
Stockton Savings & Loan Soc. v.

Purvis (112 Cal. 236), 1404.

ceviii

TABLE OF CASES CITED.

[keferences are to pages.]

Stockwell V. Hunter (11 Met.

Mass. 448), 1342.
Stockwell V. Marks (17 Me. 455),

156, 234, 1264.
Stockwell V. Sargent (37 Vt. 16),

52.
Stoddard v. Whiting (46 N. Y.

627), 331.
Stoepel V. Union Trust Co. (121

Mich. 282), 1062.
Stokes V. Burney (3 Tex. Civ.

App. 219), 1423, 1446.
Stokes V. Cooper (3 Camp. 513),

1176. •
Stokes V. Hoffman House (167 N.

Y. 544), 1122.
Stokes V. Moore (1 Cox. 219), 388.
Stoker v. Wilson, 377.
Stokoe V. Upton (40 Mich. 58),

1264.
Stoltz V. Kretschmar (24 Wis.

283), 686.
Stomfil V. Hicks (2 Salk. 413),

130.
Stone V. Ashley (13 N. H. 38),

333.
Stone V. Bohm (79 Ky. 141), 1425.
Stone V. Evans (Peake, Ad. C. 94),

1106.
Stone V. Harmon (31 Minn. 512),

989.
Stone V. Knight (3 Met. Mass. 76),

1112.
Stone V. Oconomowoe (71 Wis.

155), 72.
Stone V. Patterson (19 Pick. Mass.

476), 35, 531.
Stone V. St. Louis Stamping Co.

(155 Mass. 267), 1379.
Stone V. Snell (109 N. W. Rei).

750), 496.
Stone V. Sprague (20 Barb. N. Y.

509), 317, 537.
Stone V. Stone (1 R. I. 425), 334.
Stone's Succession (31 La. Ann.

311), 1422.
Stone V. Talbot (4 Wis. 442), 552.

Stone V. Whiting (2 Stark. 235),

181.
Stoney v. Winterhalter (11 Atl.

Rep. Pa. 611), 351.
Stoppelkamp v. Mangeot (42 Cal.

316), 139, 151.
Storch v. Harvey (45 Kan. 39 )„

1378.
Story v. Epps (105 Ga. 504), 284.
Story V. Odin (12 Mass. 157), 1146.
Story V. Ulman (88 Md. 244), 1229.
Stose V. Heisler (120 111. 436),

527, 1272.
Stotesburg v. Vail (13 N. J. Eq.

390), 1195, 1238.
Stoughton's Appeal (88 Pa. St.

198), 13.
Stout V. Folger (34 Iowa, 71),

1014.
Stout V. Merrill (35 Iowa, 47),

954.
Stover V. Chasse (6 Misc. Rep.

394), 1048.
Stover v. Hazelbaker (42 Neb.

393), 646.
Stowman v. Landis (5 Ind. 430),

522.
Strafford v. Wentworth (9 Mod.

21, Pre. Ch. 555), 540.
Strahan v. Smith (4 Bing. 96),

511.
Strain v. Gardner (61 Wis. 174),

310, 921, 1319.
Strangeway v. Eiseman (68 Minn.

395), 809.
Strauss v. Baley (58 Miss. 131),

1418, 1438.
Strauss v. Hammersley (13 N. Y.

Supp. 816), 796.
Strautz v. Protzman (84 111. App.

434), 1340.
Street v. Nelson (80 Ala. 230),

685, 1300, 1336.
Street R. R. Co. v. Morrison (IGO

111. 280), 46G.
Streeter v. Ward (12 N. Y. St.

Rep. 333), 1404, 1456.

TABLE OF CASES CITED.

CCIX

[references are to pages.]

Strehl V. D'Evers (66 111. 77), 382.
Strickland v. Hudson (55 Miss.

235), 573.
Strickland v. ParkQr (54 Me. 263),

1247.
Strickland v. Stiles (107 Ga. 308),

1413, 1417.
Strohecker v. Barnes (21 Ga. 430),

868.
Strohmeyer v. Zeppenfeld (28 Mo.

App. 268), 601.
Strong V. Crosby (21 Conn. 498),

146, 196.
Strong V. Doyle (110 Mass. 92),

1333.
Strong V. Schmidt (8 Ohio C. D.

551), 1214.
Strong V. Stringer (61 L. T. 410),

655.
Stroud, In re (8 C. B. 502), 133,

466.
Stuart V. Diplock (59 L. J. Ch.

142), 741.
Stuart V. Twining (112 Iowa, 154),

1439.
Stule V. Mart (6 D. & R. 392), 348.
Stultz V. Dickey (5 Binn. Pa. 285),

687.
Stultz V. Locke (47 Md. 562), 885,

915.
Sturgeon v. Wingfield (15 M. & W.

224), 941, 952.
Sturges V. Van Orden (75 N. Y.

Supp. 1007), 939.
Sturm wald v. Schrieber (74 N. Y.

Supp. 995), 825.
Stuyvesant v. Davis (9 Paige, Ch.

N. Y. 427), 644.
Stuyvesant v. Woodruff (21 N. J.

Law, 133), 445.
Suddarth v. Robertson (118 Mo.

286), 927.
Suffern v. Townsend (9 Johns. N.

Y. 35). 222.
Sugg V. Parrar (107 N. Car. 123),

1453.

Sulphine v. Dunbar (55 Miss. 255),

946.
Sullivan v. Carberry (67 Me. 531),

1269.
Sullivan v. Cleveland (62 Tex.

677), 1439.
Sullivan v. Enders (3 Dana, Ky.

66), 189.
Sullivan v. Jones (3 Car. & P.

579), 577.
Sullivan v. Lueck (105 Mo. App.

199), 500.
Sullivan v. Schmitt (93 App. Div.

469), 672, 673.
Sullivan's Estate (23 L. R. Jr.

255), 386.
Sully v. Schmitt (147 N. Y. 248),

1142, 1150, 1207, 1355.
Sulzbacher v. Dickie (51 How. Pr.

N. Y. 500), 802, 863.
Summer v. Clark (30 La. Ann.

436), 392.
Summer v. Williams (8 Mass.

163), 17.
Summerville v. Kelliher (144 Cal.

155), 1120.
Summerville v. Stockton Milling

Co. (142 Cal. 529), 312, 1409.
Sunasack v. Mory (196 111. 519),

678, 797.
Sunday Coal Co. v. Dikeman (84

111. App. 379), 1386.
Sunday Lake Mining Co. v. Wake-
field (72 Wis. 204), 668, 669.
Sunderland v. Newton (3 Sim.

450), 1304.
Sunrlerlin v. Hollister (4 App.

Div. 478), 811.
Sun Ins. Co. v. Varble (20 Ky. L.

Rep. 556), 847, 883, 1354.
Sup. Conn. v. F. & C. Co. (63 Fed.

Rep. 48), 342.
Supplee v. Timothy (124 Pa. St.

375), 178.
Surget V. Arighi (11 S. & M. Miss.
87), 701.

ccx

TABLE OF CASES CITED.

[references are to pages.]

Surplice v. Farnsworth (7. M. & G.

576), 785.
Sury V. Brown (Lutch, 99), 48.
Sutcliffe V. Wardle (63 Law T.

329), 992.
Sutherland v. Goodnow (108 III.

528), 615, 1383, 1391.
Sutliff V. Atwood (15 Ohio St.

186), 547, 616.
Sutphen v. Seebas (14 Abb. 67),

1152.
Sutter V. Lackman (39 Mo. 41),

42, 47.
Sutton V. Foulke (2 Pa. Co. Ct.

529), 1129.
Sutton V. Hawkins (8 Car. & P.

259), 537.
Sutton V. Hiram Lodge (83 Ga.

770), 229, 370.
Sutton V. Temple (12 Mees. & W.

52), 785, 787, 848.
Suydam v. Jackson (54 N. Y. 450),

1355.
Swain v. Mizner (8 Gray, Mass.

182), 282.
Swaine v. Homan (Hob. 203),

1200.
Swan V. Busby (5 Tex. Civ. App.

63), 946, 947, 948.
Swan V. Castleman (4 Baxt. Tenn.

257), 951.
Sv.-an V. Clark (80 Ind. 57), 146.
Swan V. Inderlied (187 N. Y. 372),

1113.
Swan V. Kemp (97 Md. 686), 121,

453.
Swansey v. Brooks (34 Vt. 451),

446, 447.
Swart V. Western U. Tel. Co. (12

Det. Leg. N. 609), 192, 271.
Swartz V. Swartz (4 Pa. St. 353),

438.
Swayze v. Monroo (40 So. Rep.

926), 299.
Sweeney v. St. John (28 Hun, N.

Y. 634), 409.

Sweet V. Meyers (3 S. D. 324),

1250.
Sweet V. Titus (4 Hun, N. Y. 639),

547.
Sweetser v. Lowell (33 Me. 446),

350, 351.
Sweetser v. McKenney (65 Me.

225), 373, 1364.
Sweesey v. Durnall (23 Neb. 531),

519, 573.
Swem V. Sharretts (48 Md. 408),

561.
Swibill V. Brown (1 Pa. Co. Ct.

Rep. 359), 783.
Swift V. Bennett (10 Cush. Mass.

436), 18.
Swift V. Coker (83 Ga. 789), 440,

441.
Swift V. Dean (11 Vt. 323), 924.
Swift V. East Waterloo Hotel Co.

(40 Iowa, 322), 674.
Swift V. Goodrich (70 Cal. 103),

931, 946.
Swift V. New Durham Lumber Co.

(64 N. H. 53), 579.
Swift V. Occidental Mining & Pet.

Co. (141 Cal. 161), 1387.
Swift V. Sheehy (88 Fed. Rep.

924), 1292.
Swift V. Thompson (9 Conn. 63),

1245.
Swinburne v. Milburn (54 L. J.

Q. B. 6), 1372.
Swire v. Bell (5 T. R. 371), 334.
Swords T. Edgar (59 N. Y. 28),

792.
Sykes v. Benton (90 Ga. 402), 5.
Sylvester v. Ralston (31 Barb. N.

Y. 386), 11, 317, 318.
Syms V. City of New York (105 N.

Y. 153), 1374.

T.

Taggard v. Roosevelt (2 E. D.
Smith, N. Y. 100), 196.

TABLE OF CASES CITED.

CCXl

[references aee to pages.]

Tait's Ex'r v. Central Lunatic Asy-
lum (84 Va. 271), 463.
Talamo v. Spitzmiller (120 N. Y.

37), 195,197.
Talbot V. Cruger (151 N. Y. 117),

1283.
Talbot V. English (156 Ind. 299),

1132, 1139, 1142, 1161, 1176.
Talbot V. Hill (68 111. 106), 1315.
Talbot V. Whipple (14 Allen, Mass.

177), 1195.
Talbot's Case (8 Co. Rep. 102b),

543.
Taliaferro v. Pry (41 Ga. 622),

1446, 1447.
Talley v. Alexander (10 La. Ann.

627), 392.
Tallmadge v. East River Bank (26

N. Y. 105), 729.
Tallman v. Bresler (56 N. Y. 635),

1101.
Tallman v. Coffin (4 N. Y. 134),

1284,1397.
Tallman v. Ely (6 Wis. 244), 487.
Tallman v. Franklyn (14 N. Y.

584), 386.
Tallman v. Murphy (120 N. Y.

345), 1142, 1355.
Talman v. Earle (17 N. Y. Supp.

7), 1195.
Talman v. Gashwiler (1 N. Y. St.

Rep. 270), 1356.
Tanton v. Boomgaarden (89 111.

App. 500), 1413.
Tanton v. Van Alstine (24 111.

App. 405), 139.
Tapia v. Demartini (77 Cal. 383),

1404.
Tarlotting v. Bokern (95 Mo. 541),

219.
Tarry v. Tarry (14 N. Y. 430), 229.
Tarte v. Darby (15 M. & W. 601),

257.
Tate V. Field (56 N. J. Eq. 35),

726.
Tate V. McClure (25 Ark. 168),

910

Tate V. McCormick (23 Hun, 221),

1087.
Tate V. Neary (65 N. Y. Supp. 40),

67, 1087.
Tatem v. Chaplin (2 H. B. 133),

617, 768.
Tatham v. Lewis (65 Pa. St. 65),

327.
Tatum V. Thompson (86 Cal. 203),

862, 1350.
Taunton v. Caspar (7 T. R. 431),

237.
Tax Court of Baltimore City v.

West Md. R. R. Co. (50 Md. 274),

453.
Taylor v. Boulware (35 La. Ann.

469), 410.
Taylor v. Caldwell (113 E. L. L.

824), 251, 1342.
Taylor v. Calvert (138 Ind. 67),

16.
Taylor v. Carondelet (22 Mo. 105),

61,72.
Taylor v. Chapman (4 R. R. 884),

181.
Taylor v. Cole (3 T. R. 292), 237.
Taylor v. Coney (101 Ga. 655),

310.
Taylor v. Cooper (104 Mich. 72),

696, 1185.
Taylor v. Donohue (103 N. W.

Rep. 1099), 312.
Taylor v. Felder (23 S. W. Rep.

480), 1466.
Taylor v. Finnegan (189 Mass.

568), 423, 733, 854, 856. 1176.
Taylor v. Coding (65 N. E. Rep.

64), 463.
Taylor v. Hibbert (2 Ves. Jr. 437),

497.
Taylor v. Kelly (56 N. C. 240),

960.
Taylor v. Kincaid (4 Ky. Law

Rep. 837), 378.
Taylor v. Nelson (54 Miss. 524),

1411.

ecxu

TABLE OF CASES CITED.

[references are to pages.]

Taylor v. Newcomb (123 Mich.

637), 1333.
Taylor v. O'Brien (19 R. I. 429),

233.
Taylor v. Preston (79 Pa. St. 436),

599.
Taylor v. Sandford (7 Wheat. U.

S. 207), 552.
Taylor v. Shum (1 Bos. & P. 21),

518, 1091.
Taylor v. Stibbert (2 Ves. 439),

394, 1003, 1075.
Taylor v. White (86 Mo. App. 526),

941.
Taylor v. Winters (6 Phila. 126),

555.
Taylor v. Wright (51 App. Div.

97), 679, 682.
Taylor v. Zamira (6 Taunt. 524),

54-5, 1008.
TeafE v. Hewitt (1 Ohio St. 511),

1245.
Teagarden v. Laughlin (86 Ind

476), 689.
Tean v. Pline, (60 Mich. 385). 100
Teater v. King (35 Wash. 138),

159, 163.
Tebb V. Cave, (69 L. J. Ch. 282).

1140.
Teft V. Hinchman, (76 Mich. 672),

158.
Teitig V. Boesman (12 Mont. 404),

65.
Teller v. Boyle (132 Pa. St. 56),

1222.
Templeman v. Biddle (1 Har. Del.

522), 130C, 1314.
Templeman v. Gresham (61 Tex.

50), 1400.
Ten Eyck v. Sleeper (65 Minn.

413), 555.
Tenner v. Diplock (2 Bing. 10),

923.
Terhune v. Elberan (3 N. J. Law

297), 1316.
Terrell v. Cunningham, (70 Ala.

100), 83.

Territory v. Stone (2 Dak. 155),

778.
Terstegge v. First German M. &

B. S. Co. (92 Ind. 82), 1210,

1364.
Teufel V. Rowan (179 Pa. St.

408), 1240.
Tew V. Jones (13 M. & W. 12),

322.
Tewksbury v. Magraff (33 Cal.

237), 923, 926, 954.
Texas & P. Coal Co. v. Lawson (10

Tex. Civ. App. 491), 621.
Texas & Pac. Ry. Co. v. Magnum

(68 Tex. 342), 836.
Texas Loan Agency v. Fleming,

(92 Tex. 458), 828.
Thacker v. Henderson (63 Barb.

N. Y. 271), 11, 13.
Thalheimer v. Lempert (17 N. Y.

St. Rep. 348), 1150, 1153.
Tharn v. De Breteuil (83 N. Y.

Supp. 849), 503.
Thatcher v. St. Andrew's Church

(37 Mich. 263), 349.
Thayer v. Brackett (12 Mass. 450,

452), 538.
Thayer v. Cramer (McCord, S. C.

Ch. 395), 28.
Thayer v. Society (20 Pa. St. 60),

927.
Thayer v. United Brethren, (20

Pa. St. 62), 959.
Thetford Corporation v. Tyler (8

Q. B. 95), 194, 580.
Theriat v. Hart (2 Hill, N. Y.

380), 1441.
Thew V. Porcelain Mfg. Co. (5

Rich, S. C. 415), 65.
Thiebaud v. First Nat. Bank (42

Ind. 212), 139, 1362.
Thier v. Barton (Moore, 94), 1206.
Thigpen v. Maget (107 N. Car.

39). 1432.
Thomas v. Bacon (34 Hun. N. Y.

88), 1434.

TABLE OP CASES CITED.

CCXlll

[references are to pages.]

Thomas v. Black (8 Houst. Del.

507J, 155.
Thomas v. Blackmore (5 Yerg.

Tenn. 113), 391, 1107.
Thomas v. Cadwallader (Willes,

496), 911.
Thomas v. Cook (3 B. & Aid. 119),

1199, 1213.
Thomas v. Conrad (24 Ky. Law

Rep. 1630), 474, 848, 1078.
Thomas v. Dundas (31 La. Ann.

184), 1464.
Thomas v. Grant (5 Bush, Ky.

142), 1264.
Thomas v. Hay ward (20 L. T. N.

S. 814), 771.
Thomas v. Hooker-Calville Pump

Co. (22 Mo. App. 8), 1023.
Thomas-Houston Electric Co. v.

Durant Land Improvement Co.

(144 N. Y. 34), 881.
Thomas v. Jenning (66 L. J. Q. B.

5), 1295.
Thomas v. Johnson (95 S. W. Rep

468), 276.
Thomas v. Kingsland (108 N. Y.),

860.
Thomas v. Meader (6 Ohio N. P.

242), 1063.
Thomas v. McManus (64 S. W.

Rep. 446), 378.
Thomas v. Nelson (69 N. Y. 118),

103, 1207, 1208.
Thomas v. Railway (10 Ohio Fed.

Dec. 544), 466.
Thomas v. Roberts, 16 M. & W.

780), 136, 137.
Thomas v. Sanford (71 Me. 548),

195, 218.
Thomas v. Sorrell (Vaughn, 351),

272.
Thomas v. Strauss Brewing Co.

102 Md. 417), 988.
Thomas v. Thomas (F. & K. 621),

1124.
Thomas v. Tucker (89 S. W. Rep.

802), 1416.

Thomas v. Walmer (18 Ind. App.),

156.
Thomas v. West Jersey R. R. Co.

101 U. S. 70), 71.
Thomas v. Wiggins (41 111. 470),

294, 450, 1369.
Thomas v. Wright (9 Serg. & R.

Pa. 87), 155.
Thomas v. Zumbalen (43 Mo.

471), 1097.
Thomasson v. Wilson (146 111.

384), 486.
Thompson v. Anderson (86 Iowa,

703), 1421.
Thompson v. Banks (43 N. H.

540). 438.
Thompson v. Chapman (57 Ga.

16), 482.
Thompson v. Christie (138 Pa. St.

230), 393, 1076.
Thompson v. Clemens (96 Md.

196), 877.
Thompson v. Cummings (39 Mo.

App, 537), 906.
Thompson v. Dearborn (107 111.

87), 532.
Thompson Houston Elec. Co. v.

Durant L. Co. (144 N. Y'. 34),

601, 867.
Thompson v. Elliott (73 111. 221),

567.
Thompson v. Flathers (45 La.

Ann. 120), 33.
Thompson v. Fox (45 N. Y. Supp.

1046), 582.
Thompson v. Goble (15 Pac. Rep.

713), 342. .
Thompson v. Guano Co. (93 Ga.

282), 546, 1095, 1423.
Thompson v. Guyon (5 Sim. 65),

667, 1038.
Thompson v. Hakewell (19 C. B.

N. S. 713), 494.
Thompson y. Lapworth (L. Rep. S

C. P. 149), 1030.
Thompson v. Maberly (2 Campb.

573), 172.

CCilV

TABLE OF CASES CITED,

[BEFERE>fCES ARE TO PAGES.]

Thompson v. Matthews (61 N. C.

15), 368.
Thompson v. Mead (67 111. 395),

1439.
Thompson v. Rose (8 Cow. N. Y.

263), 614.
Thompson v. Sanborn (62 Mich.

141), 143.
Thompson v. Stewart (60 Iowa,

223), 453.
Thompson v. Thompson (9 Ind.

323), 342.
Thomson v. Baltimore & S. Steam

Co. (33 Md. 312), 1441.
Thompson v. Williams (30 Kan.

414), 549.
Thompson's Estate (1 Kulp Pa.

235), 575.
Thomson v. Ludlum (74 N. Y

Supp. 875), 1112.
Thomson v. Smith (111 Iowa,

713), 1244.
Thomson v. Tilton (22 Ky. Law

Rep. 784), 1419.
Thorn v. Sutherland (123 N. Y.

236), 1114.
Thorndell v. Morrison (25 Pa. St.

326), 24.
Thorndike v. Burrage (111 Mass.

531), 884.
Thornton v. Carver (80 Ga. 397),

1430, 1446.
Thornton v. Payne (5 Johns. N.

Y. 74), 250, 348.
Thorsgood v. Richardson (7 Bing.

420), 1442.
Thousand Island Park Ass'n v.

Tucker (173 N. Y. 203), 405.
Thrall v. Omaha Hotel Co. (5 Neb.

295), 953, 954.
Thresher v. E. London Water-
works (2 B. & C. 609), 1287.
Thropp V. Field (26 N. J. Eq. 82).

294, 664, 665.
Thrnston v. Minke (32 Md. 487),

723. 758.

Thum V. Rhodes (12 Colo. App.

245), 804.
Thunder v. Belcher (3 East, 450),

147, 234.
Thurber v. Dwyer (10 R. I. 355),

146.
Thurlough v. Dresser (98 Me.

161), 395.
Thursby v. Eccles (70 Law J. Q.

B. 91), 379.
Thursby v. Plant (1 Saund. 240),

494, 560.
Thurston v. Minke (32 Md. 487),

612.
Tibbals v. Iffland (10 Wash. 451),

390, 1045, 1090.
Tibbits V. Moore (19 N. H. 369).

96.
Tibbits V. Percy (24 Barb. N. Y.

39), 877.
Tice V. Cowenhoven (63 N. J. L-

24), 169.
Tichborne v. Weir (4 Reports, 26),

1069.
Tidey v. Mollett (16 C. B. N. S.

298). 332, 868.
Tidrick v. Rice (13 Iowa, 214),

101.
Tidswell v. Whitworth (L. Rep.

2 C. P. 320), 1028.
Tiefenbrine v. Tiefenbrine (68

Mo. App. 253), 388.
Tiernan v. Miller (69 Neb. 764),

112.
Tiley v. Moyers (43 Pa. St. 404),

1132, 1183.
Tilford V. Fleming (64 Pa. St.

301). 483, 486.
Tilghman v. Cruson (4 Har. Del.

341), 685.
Tilghman v. Little (13 111. 239),

922, 924, 954.
Tilleny v. Knoblauch (73 Minn.

108), 942.
Tillotson V. Boyd (6 N. Y. Super.

Ct. 516). 1081.

TABLE OF CASES CITED.

ccxv

[references are to pages.]

Tillotson V. Kennedy (5 Ala. 407),

212.
Tilney v. Norris (1 Ld. Raym.

553), 619.
Tilt V. Stratton (4 Bing. 46), 155.
Tilton V. Emery (17 N. H. 536),

958.
Tilton V. Sterling Coal & Coke

Co. (28 Utah, 173), 980, 991.
Tilyou V. Reynolds (108 N. Y.

558), 951.
Timbrell v. Bullock (Sty. 446),

1200.
Timlin v. Standard Oil Co. (126

N. Y. 514), 805, 836.
Timmes v. Metz (156 Pa. St. 384),

1445.
Timmins v. Rowlinson (3 Burr.

1603), 166, 217.
Timms v. Baker (49 L. T. 106),

626.
Tinder v. Davis (88 Ind. 99), 573,

579.
Tinman v. McMeekin (42 S. Car.

311), 1455.
Tippet V. Jett (10 La. O. S. 359),

958.
Tischer v. Rutledge (35 Wash.

285), 1374.
Tison V. Yawn (15 Ga. 491), 923.
Title V. Kennedy (71 S. Car. 1),

1327.
Titsworth v. Frauenthal (52 Ark

254), 1435.
Toan V. Pine (80 Mich. 385), 532.
Tobey v. County of Bristol (3

Story, U. S. 819), 572.
Tobey v. Matimore (104 N. Y.

Supp. 393), 1088.
Tobey v. Webster (3 Johns. N. Y.

468), 685.
Tobias v. Cohn (36 N. Y. 363),

685.
Tobin V. Young (17 N. E. Rep.

625), 189, 217.
Todd V. Blight (30 L. J. C. P. 21),

792-

iodd V. Philhower (24 N. J. Law,

796), 462.
Tod-Heatley v. Benham (58 L. J.

Ch. 83), 747.
Toleman v. Portbury (24 L. T.

24), 625, 651, 721.
Toler V. Hayden (18 Mo. 399),

1274.
Toler V. Seabrook (39 Ga. 14),

516.
Toles V. Meddaugh (106 Mich.

398), 314.
Tolle V. Orth (75 Ind. 298), 1218.
Tollman v. Myrphy (120 N. Y.

345), 1151.
Tolman v. Smith (85 Cal. 280), 27.
Tolsma v. Adair (32 Wash. 383).

1233.
Tomes v. Chamberlaine, (5 Mee. &

Wei. 14), 198.
Tomle V. Gampton (129 111. 379),

792.
Tomle V. Hampton (28 111. App.

142), 792, 827.
Tomlinson v. Day (2 Brod. &

Bing. 680), 581, 1178.
Tomlinson v. Greenfield (31 Ark.

557), 1436.
Tompkins v. Lawrence (8 Car. &

P. 729), 128.
Tompkins v. Snow (63 Barb. N. Y.

525), 920.
Tondro v. Cushman (5 Wis. 279),

920, 953.
Tone V. Brace (11 Paige, N. Y.

566), 698.
Toney v. Goodley (57 Mo. App.

235), 1430, 1446.
Took V. Glascock (1 Saund. 343J,

683, 684.
Toole V. Beckett (67 Me. 544), 808.
Torrence v. Irwin (32 Yeates, Pa.

210), 686.
Torreson v. Walla (11 N. D. 481),

852.
Torrey v. Burnett (38 N. J. Law-

457), 1264.

CCXVl

TABLE OF CASES CITED.

[refebexces are to pages.]

Torrey v. Torrey (14 N. Y. 480),

234.
Torrey v. Wallace (3 Cush. Mass.

442), 616, 1021, 1080.
Torriono v. Young (6 Car. & P. 8).

138.
Totten V. Phipps (52 N. Y. 354),

814.
Toupin V. Peabody (162 Mass.

473), 390, 392.
Tourtellot v. Rosebrook (11 Met.

Mass. 480), 844.
Tourtelot v. Junkin (4 Blackf.

Ind. 483), 592.
Towell V. Tranter (3 H. & C. 458),

374.
Towerson v. Jackson (61 L. J. J.

B. 36, 1891, 2 Q. B. 484), 34.
Towne v. Bowers (81 Me. 491),

1306.
Towne v. Butterfleld (97 Mass.

105), 198, 922, 940, 959.
Tov/ne v. Campbell (3 Com. Bench.

921), 154, 159, 160.
Towne v. Thompson (68 N. H.

317), 796.
Townley v. Bedwell (14 Ves. 591),

996.
Townley v. Oregon Ry. Co. (33

Oreg. 333), 686.
Townsend v. Albers (3 E. D.

Smith, N. Y. 560), 1210.
Townsend v. Boyd (217 Pa. Sr.

386), 940.
Townsend v. Gilsey (1 Sweeney

N. X. 155), 1168.
Townsend v. Hubbard (4 Hill, N.

Y. 351), 332.
Townsend v. Isenberg (45 Iowa.

670), 312, 1111.
Townsend v. Tickell (5 E. C. L.

31), 1074.
Trabue v. McAdams (8 Bush.

Ky. 74), 1045.
Tracy v. Albany Exch. Co. (7 N.
Y. 472), 1367, 1368, 1384.

Traders' Bank of Kirwin v. First
Nat. Bank (6 Kan. App. 400),
1250.
Traherne v. Saddleir (5 Bro. P. C.

179), 1106.
Traintor v. Cole (120 Mass. 162),

84.
Trapnall v. Merrick (21 Ark. 503),

329, 559.
Trappan v. Morie (18 Johns. N. Y.

1), 1441.
Trask v. Graham (47 Minn. 571),

518, 615, 1021, 1080.
Trask v. Wheeler (7 Allen, Mass.

109), 490.
Trathen v. Kipp (15 Colo. App.

426), 563.
Travers v. Cook (42 HI. App. 580),

1425, 1442.
Traylor v. Cabanne (8 Mo. App.

131), 45, 327.
Treackle v. Coke (1 Vern. 165),

520.
Treadwell v. Reynolds (47 Cal.

171), 350, 351.
Treat v. Lord (42 Me. 552), 434.
Trebar v. Biggs (L. Rep. Ex. 151),

1064.
Trelvar v. Bigge (43 L. J. Ex. 95),

i045.
Tremeere v. Morrison (4 M. &

Scott, 603), 47.
Trenar v. Jackson (46 How. Prac.

N. Y. 389), 721.
Trenkman v. Schneider (56 N. Y.

Supp. 770), 295, 564, 1143.
Treport's Case (6 Coke, 14a), 86,

953. -
Tress v. Savage (4 E. & E. 36),

147, 196, 332.
Trevivian v. Lawrence (6 Mod.

256), 953.
Trill V. Eastman (3 Met. Mass.

121), 614.
Trimble v. Durham (70 Miss. 295).

1418, 1449.

TABLE OF CASES CITED.

CCXVH

[reff.rexces are to pages.

Trimble's Heirs v. Ward (14 B.

Mon. Ky. 8), 449.
Trinity Church v. Cook (11 Abb.

Pr. N. Y. 371), 1024.
Trinity Church v. Higgins (4 Rob.

N. Y. 1), 1034.
Trinity Church v. Vanderbilt (98

N. Y. 170). 1017.
Tripp V. Hasceig (20 Mich. 254),

1315.
Tritton v. Barnhart (56 L. T. 306),

757.
Tritton v. Foote (2 Brown's Ch.

497), 1363.
Tritton v. Toole (2 Bro. C. C.

636), 1372.
Trout V. McDonald (S3 Pa. St.

144), 25, 100.
Trower v. Wahner (75 111. 655),

800, 804.
Truesdell v. Booth (4 Hun. N. Y.

100), 1149, 1152.
Trulack v. Donahue (76 Iowa,

758), 1116.
Trull V. Granger (8 N. Y. 115, 673.

677.
Truss V. Old (6 Rand. Va. 556),

685, 1300, 1336.
Trust Co. of North America v

Manhattan Trust Co. (23 C. C.

A. 30), 1420.
Trustees v. Cowen (4 Paige, N. Y.

510), 616.
Trustees v. Lynch (70 N. Y. 440),

742.
Trustees v. Robinson (Wright,

Ohio, 436), 343.
Trustees v. Stevenson (1 Houst.

Del. 451), 915.
Tryon v. Davis (8 Wash. 106), 28.
Tscheider v. Biddle (8 Fed. Cas.

4210), 984, 1188.
Tubb V. Fort (58 Ala. 277), 492.
Tube V. Montgomery (7 Tex. Civ.

App. 557), 1187.
Tuberville v. Stampe (12 Mod.

152), 843.

Tucker v. Adams (52 Ala. 254).

317.
Tucker v. Bennett (81 Pac. Rep

423), 853.
Tucker v. Byers (57 Ark. 215),

291.
Tucker v. Keeler (4 Vt. 161), 33.

232.
Tucker v. Linger (51 L. J. Ch.

713), 711.
Tucker v. Morse (1 C. & Ad. 865),

8.
Tucker v. Whitehead (58 Miss.

762), 1112.
Tucker Zeve & Co. v. Thomas (35

Tex. Civ. App. 499). 1414.
Tudgay v. Sampson (30 L. T. 262),

459.
Tufts V. Stone (70 Miss. 54), 1448.
Tulk V. Moxhay (2 Phil. Ch. 774),

768.
Tullis V. Tacoma Land Co. (19

Wash. St. 140), 941.
Tully V. Dunn (42 Ala. 262), 518,

561.
Tunis V. Grandy (22 Grat. Va.

100), 1178. 1180.
Tunis Lumber Co. v. R. G. Dennis
Lumber Co. (97 Va. 682), 1250.
Turbeville d. Darden v. Ryan (1

Humph. Tenn. 113), 97.
Turley Institute v. Memphis (8

Heisk. Tenn. 845), 1019.
Turner v. Bank, of Fox Lake (3

Keyes N. Y. 425), 547.
Turner v. Cameron's etc. Ry. (5

Ex. 932), 575.
Turner v. Cool (23 Ind. 56), 1315,
Turner v. Davis (48 Conn. 397).

258.
Turner v. Doe dem. Bennett (9 M.

& W. 643), 214, 215.
Turner v. Ferguson (33 Tex. 505),

112.
Turner v. Gaither (S3 N. C. 357),
19.

ecxviii

TABLE OF CASES CITED.

[beferexces are to pages.]

Turner v. Hutchinson (2 F. & F.

185), 97.
Turner v. Kennedy (57 Minn. 104),

1265.
Turner v. McCarthy (4 E. D.

Smith, N. Y. 247, 804.
Turner v. Power (7 B. & C. 625),

581.
Turner v. Strange (56 Tex. 141),

1303.
Turner v. Thompson (58 Ga. 268),

409, 410.
Turner v. Townsend (42 Neb. 376),

874.
Turner v. Wentworth (119 Mass.

459), 1249.
Tustin V. Faught (23 Cal. 237),

27.
Tuttle V. Bean (13 Met. 275), 663.
Tuttle V. Manufacturing Co. (145

Mass. 169), 806, 860.
Tuttler V. Reynolds (1 Vt. 80),

182.
Twiss v. Boehmer (39 Oreg. 359),

243, 258.
Twycross v. R. R. Co. (10 Gray,

Mass. 293), 1025.
Tyler v. Davis (61 Tex. 674), 920,

930.
Tyler v. Disbrow (40 Mich. 415),

784.
Tyler v. Dyer (13 Me. 41), 571.
Tyler's Estate v. Giesler (74 Mo.

App. 543), 463, 644, 1058.
Tyrringham's Case (4 Coke, 37a),

446.
Tyrwhitt v. Lambert (3 P. & D.

676), 581.
Tyson v. Chestnut (118 Ala. 387).

694.
Tyson v. Shueey (5 Md. 540), 685.

U.

Udden v. O'Reilly (180 Mo. 650)

828.
Udell V. Peak (70 Tex. 547), 973.

Uggla V. Brokaw (102 N. Y. Supp.

857), 807.
Underbill v. Collins (132 N. Y.

271), 1199.
Underwood v. Birchard (47 Vt.

305), 672, 701.
Underwood v. Burrows (7 Car. &

P. 26), 420.
Underwood v. Hitchcock (1 Ves.

Sr. 279), 1002.
Underwood v. Stuyvesant (19

Johns. N. Y. 181), 431.
Unger v. Bamberger (6 Ky. Law

Rep. 447), 1364.
Ungles V. Graves (2 Blackf. Ind.

191), 1441.
Union Banking Co. v. Gittings (45

Md. 181), 385, 566.
Union Pacific R. Oo. v. Chicago R.

I. & P. Ry. Co. (164 ni. 88), 561.
Union Pac. Ry. Co. v. Chicago, R.

L & P. Ry. Oo. (51 Fed. Rep,

309), 67.
Union Ry. Co. v. Chickasaw, Coop.

Oo. (95 S. W. Rep. 171), 73.
Union W. & El. Co. v. Mclntyre,

(84 Ala. 78), 1467.
Union Water Power Co. v. Chabot

(93 Me. 339), 1420.
Union Water Power Oo. v. Lewis-
ton (95 Me. 471), 453.
United States v. Boswick, (94 U-

C. 66), 710.
United States v. Brooks (10 How.

U. S. 442), 38, 39.
United States Flournoy Live Stock

& R. E. Co.) 69 Fed. Rep. 886),

40.
United States Bank v. Athens

Armory (35 Ga. 344), 28.
United States v. Parrott (1 Mc-
Allister U. S. C. O. 271), 710.
United States Trust Co. v. New

York W. S. & B. R. Co. (lOl N.

Y. 483), 1122. .
United States Trust Co. v. O'Brien
(143 N. Y. 284), 692, 759.

TABLE OF CASES CITED.

CCXIX

[references are to pages.]

United States Mfg. Co. v. Stevens

(52 Mich. 330), 1298.
University v. Joslyn (21 Vt. 52),

332, 559.
Updegraff v. Lesem (Colo. App.

1900, 62 Pac. Rep. 342), 628,

1250, 1267.
Updike V. Campbell (4 E. D.

Smith, N. Y. 570), 775.
Upham V. Head (74 Kan. 17), 865.
Upper Appomatox Co. v. Hamil-
ton (S3 Va. 319), 1437.
Upton V. Greenless (17 Com. B.

64), 1136.
Upton V. Hosmer (70 N. H. 493),

1045, 1294.
Upton V. Townsend (17 C. B. 30),

699, 1129, 1142, 1340.
Usher v. Moss (50 Miss. 208), 139.
Utah Loan, etc. Co. v. Garbutt (6

Utah, 342), 55, 148, 151.
Utah Optical Oo. v. Keith (18

Utah 464), 1185.
Uttendorfer v. Saegers (50 Cal.

496), 685.

V.

Vai V. Weld (17 Mo. 332), 847.
Vale V. Moorgate Buildings (80 L.

T. 487), 744.
Valentine v. Healey (86 Hun. 259),

83, 85.
Valle V. Fargo (1 Mo. App. 344),

1014.
Valpy V. St. Leonard's Wharf Co.

(1 L. G. R. 305), 1028.
Va. Min. & Improvement Co. v.

Hoover (82 Va. 449), 282.
Van V. Oorpe (3 Myl. & K. 269),

364, 607.
Van Arsdale v. Buck (81 N. Y.

Supp. 1017), 573.
Vanatta v. Brewer (32 N. J. Eq.

268>, 620.
Van Brunt v. Wallace (88 Minn.

116), 219, 1207.

Van Buskirk v. Gordon (10 N. Y.

St. Rep. 351), 847, 877, 1214.
Vance v. Lowther (45 L. J. Ex.

200), 343.
Vance v. Ranfurley (1 Ir. Ch. R.

322), 1370.
Vance v. San Antonio Gas Co.

(Tex. 60 S. W. R. 317), 680.
Vancleave v. VvMlson (73 Ala. 387),

944.
Van Cortlandt v. Underbill (17

Johns. N. Y. 405), 1273.
Vandegrift v. Abbott (75 Ala.

487), 563.
Vanderbeck v. Hendry (34 N. J. L.

467), 804, 813.
Vanderbilt v. Persse (3 E. D.

Smith, N. Y. 727), 1149, 1167.
Vanderheuvel v. Starrs (3 Conn.

303), 317.
Vanderpool v. Smith (1 Daly N. Y.

311), 1134, 1190.
Vanderpool v. Smith (2 Daly N. Y.

135), 1349.
Van Deusen v. Young (29 N. Y. 9),

716, 1336.
Vandoren v. Everitt (5 N. J. Law,

460), 15, 1314, 1306.
Van Doren v. Robinson (13 N. J.

Eq. 256), 984.
Van Driel v. Rosierz (26 Iowa

575), 493.
Vanduyn v. Hepner (45 Ind. 589),

957.
Vane v. Lord Barnard (2 Vern.

738), 725.
Van Every v. Ogg (59 Cal. 563),

852, 862.
Van Home v. Grain (1 Paige, N.

Y. 455), 999.
Van Hess v. Hyatt (28 Fed. Cas.

16, 867), 390.
Van Ness v. Pacard (2 Pet. U. S.

137), 465, 1245, 1250, 1259.
Vann v. Rouse (94 N. Y. 401),

1154, 1360.

ecxx

TABLE OF CASES CITED,

[rEFEREXCES ABE TO PAGES.]

Van Patten v. Leonard (55 Iowa,

520), 1408.
Van Rensselaer v. Bradley (3

Denio N. Y. 135), 541.
Van Rensselear v. Gallup (5 Denio

N. Y. 454), 541.
Van Rensselear v. Jewett (5 Denio,

121), 524.
Van Rensselaer v. Jones (2 Barb.

N. Y. 643), 543, 1095.
Van Rensselaer v. Pennimann (6

Wend. N. Y. 569), 1195, 1203,

1276, 1397.
Van Rensalaer v. Quackenboss (17

Wend. N. Y. 34), 1444.
Van Rensselear v. Read (26 N. Y.

558), 504.
Van Rensselaer v. Secor (32 Barb.

N. Y. 469), 262, 1069.
Van Schaick v. Third Ave. R. R.

Co. (38 N. Y. 346), 1080.
Van Siclen v. City of New York

64, 688.
Van Soligen v. Harrison (39 N. J.

Law, 51), 333.
Van Studdiford v. Kohn (46 Mo.

App. 436), 173.
Van Vleck v. White (72 N. Y.

Supp. 1026), 1267, 1285.
Van Wagner v. Van Nostrand (19

Iowa, 422), 491.
•Van Warden v. Winslow (117

Mich. 564), 689.
Van Wicklen v. Paulsen (14 Barb.

N. Y. 654), 492, 593, 1111.
Van Wickles v. Alpaugh (3 N. J.

Law, 446), 960.
Van Wormer v. Orane (51 Mich.

363), 902.
Varley v. Coppard (L. R. 7 O. P.

505), 1053.
Varley v. Leigh (2 Ex. 446), 560.
Vatel V. Herner (1 Hilt, N. Y. 149),

1131, 1136.
Vaughan v. Blanchard (1 Yeates,

Pa. 175), 1180.

Vaughan v. Hancock (3 O. B. 766),

379.
Vaughan v. Menlove (3 Bing. N. C.

468), 844.
Vaughn v. Howell (83 Ga. 336),

1318.
Vaughn v. Matlock (23 Ark. 9).

604.
Veal V. Hanlon (123 Ga. 642), 801,

853.
Vegely v. Robinson (20 Mo. App.

199), 522.
Venable v. McDonald (4 Dansi, Ky.

336), 198.
Vere v. Lovenden (12 Vea. 179),

607.
Vermilya v. Austin (2 E. D. Smith,

N. Y. 302), 1180.
Vermont v. Society, etc. (28 Fed.

Cases, 16, 919), 632.
Vernam v. Smith (15 N. Y. 327),

576.
Verplanck v. Wright (23 Wend.

N. Y. 506), 620.
Ver Steeg v. Becker-More Paint

Co. (108 Mo. App. 257), 153, 244,

346.
Vetter's Appeal (99 Pa. St. 52),

505.
Viany v. Ferran (5 Abb. Pr. N. S.

N. Y. 110), 1390.
Vick V. Ayres (56 Miss. 670), 322.
Victory v. Foran (56 N. Y. Super.

Ot. 507), 805.
Victory v. Stroud (15 Tex. 573),

258.
Vigers v. St. Paul's (14 Q. B. 909),

485.
Vilas V. Mason (25 Miss. 310).

1301.
Villard v. Roberts (1 Strob. S. C.

393), 395.
Vincent v. Corbin (85 N. C. 108),

162.
Vincent v. Crane (10 Det. Leg. N.

653), 559, 893, 906, 1054.

TABLE OF CASES CITED.

CCXXl

[beferexces are to pages.]

Vincent v. Frelich (50 La. Ann.

378), 1349.
Vincent v. Rather (31 Tex. 77),

101.
Viner v. Vaughan (2 Beav. 4GG),

710.
Vinson v. Graves (16 La. Ann.

162), 1359.
Vinz V. Beatty (61 Wis. 645), 275.
Virden v. Ellsworth (15 Ind. 144),

592.
Viterbo v. Friedlander (120 U. S.

707j, 783, 1359.
Vivian v. Moat (50 L. J. Oh. 331),

965.
Voege V. Ronalds (83 Hun. 114),

466, 1364, 1378.
Voight V. Resor (80 111. 331), 262.
Volmer v. Wharton (34 Ark. 691),

1432.
Von Glahn v. Brennan (81 Cal.

261), 182.
Voorhies v. Burchard (55 N. Y.

98), 446.
Voorhees v. McGinnis (48 N. Y.

282), 1246, 1248.
Vorse V. Des Moines M. & M. Co.

(104 Iowa, 541), 1014, 1027, 1264,

1267.
Vose V. Baker (1 Cranch, C. C.

104), 690.
Vose V. Bradstreet (27 Me. 156),

337, 462.
Voss V. King (38 W. Va. 607), 920,

936.
Vyvyvan v. Arthur (1 Barn. & C.

410), 768.
Waddilove v. Barnett (2 Bing. N.

C. 543), 545.
Wade V. Halligan (16 111. 507),

697, 1139, 1180.
Vade V. Herndl, (127 Wis. 544),

1169, 1186.
Wade V. Smith Penn. Oil Co. (45

W. Va. 380), 995.
Wade V. South Penn. Oil Co. (45

W. Va. 390), 936.

Wades v. Figgatt (75 Va. 575),

1437.
Wadleigh v. Janvrin (41 N. H.

503), 1260.
Wadlington v. Hill (18 Miss. 560),

604.
Wadlow v. Markey (95 111. App.

484), 1061.
Wadman v. Burke (81 Pac. Rep.

1012), 1287, 1288.
Wadsworthville v. Jennings (40 S.

C. 168), 967.
Waggener v. McLaughlin (33 Ark.

195), 956, 1005.
Waggoner v. Jermaine (3 Denio,

306), 794.
Waggoner v. Snoddy (36 Tex. Civ.

App. 514), 1046.
Wahl V. Barroll (8 Gill. Md. 288),

551, 1097, 1228.
Wainscottv. Silvers (13 Ind. 497).

844.
Wainwright v. Ramsden (5 Mee.

Wei. 602), 1179.
Wait, In re (7 Pick. Mass. 100),

51S.
Waite V. O'Neil (76 Fed. Rep.

408), 893, 1157, 1136, 1140. 1343.
Walden v. Bodley (14 Pet. U. S.

156), 921.
Walden v. Conn. (84 Ky. 312), 679,

688.
Waldo V. Hall (14 Mass. 486).

1077.
Waldorff Astoria Segar Co. v. Sal

omon (184 N. Y. 584), 745.
Walker v. Cromley (14 Wend. N

Y. 63), 1087.
Walker v. Dohan (39 La. Ann.

743), 1086.
Walker v. Edmundson (111 Ga.

454), 995.
Walker v. Engler (30 Mo. 130),

657.
Walker v. Fisher (117 Mich. 72),

936.

cexxii

TABLE OF CASES CITED.

[references are to pages.]

Walker v. Gilbert (2 Rob. N. Y.

214), 860, 861.
Walker v. Harper (33 Mo. 592),

920.
Walker v. Jeffreys (1 Hare. 341),

1385.
Walker v. Patterson (33 Tex. Civ.

App. 50), 1420.
Walker v. Ricbardson (2 Mee. &

Wei. 882), 1199.
Walker v. Seymour (13 Mo. 592),

1389.
Walker v. Swayzee (3 Abb. Pr. N.

Y. 138), 860, 879.
Walker v. Tucker (70 111. 528),

453, 455, 760, 1129, 1136.
Walker v. Wadley (124 Ga. 275),

1370.
Walker v. Whittemore (112 Mass.

187) 1023.
Walker Ice Co. v. American Steel

& Wire Co. (185 Mass. 463), 435.
Walker's Case (3 Co. 22a), 559.
Wall V. Hinds (4 Gray, Mass. 256),

1019, 1093, 1300, 1349, 1354.
Wallace v. Drew (59 Barb. N. Y.

413), 431.
Wallace v. Kennedy (47 N. J. Law,

242), 1213.
Wallace v. Lent (1 Daly, N. Y.

481), 785, 1150.
Wallace v. Patten (12 CI. & F.

491), 1227.
Wallace v. Wilcox (27 Tex. 60),

958.
Waller v. Edmonds Cockfield (111

La. 595), 1130.
Walls V. Atcheson (3 Bing. 462),

1199, 1208.
Walrond v. Hawkins (44 L. J. C.

P. 116), 647, 1058.
Wailser v. Graham (45 Mo. App.

629), 976.
Walsh V. Bourse (15 Super. Ct. Pa.

219), 817.
Walsh V. Lonsdale L. R. (21 Oh.

Div. 9), 505.

Walsh V. Martin (69 Mich. 29),

464, 1200, 1398.
Walsh V. Pemberton (Selw. N. P.

613), 510.
Walsh V. Sichler (20 Mo. App.

374), 1264.
Walter v. Dewey (16 Johns. N. Y.

222), 528.
Walter v. Maunde (1 J. & W. 181),

1075.
Walter v. Waterhouse (3 Saund.

420), 1340.
Walter Commission Co. v. Gille-

land (98 Mo. App. 584), 664.
Walters v. Hutchin's Adm'x (29

Ind. 136), 1336.
Walters v. Myer (39 Ark. 560),

1400, 1403.
Vv^alters v. Snow (32 N. Car. 292),

867.
Walton V. Jordan (65 N. Car. 170),

1317.
Walton V. Stafford (162 N. Y. 563),

1063.
Walton V. Wray (54 Iowa, 531),

1250.
Wamganz v. Wolff (86 Mo. App

205), 1186.
Wampler v. Weinmann (56 Minn.

1), 1354.
Ward V. Bull (1 Fla. 271), 1340,

1345.
Ward V. Day (5 B. & S. 359), 656.
Ward V. Day (4 Best & Smith,

327), 654.
Ward V. Earl (86 111. App. 635),

1252.
Ward V. Edesheimer (17 N. Y.

Supp. 173), 672.
Ward V. Fagan (28 Mo. App. 110),

800.
Ward V. Fagin (101 Mo. 669), 847,

849.
Ward V. Hartpole (3 Bligh. 470),

475:
Ward V. Kelsey, (42 Barb. N. Y.

582), 857, 864.

TABLE OF CASES CITED.

cexxiu

[BEFEREXCES ABE TO PAGES.]

Ward V. Langmade (9 0. Cir. Ct.

Rep. 85), 757.
Ward V. Lumley (5 H. & N. 87),

1237.
Ward V. Noel (37 Ala. 500), 409.
Ward V. Philadelphia (6 Atl. Rep.

263), 929.
Ward V. People (6 Hill, N. Y. 144),

435.
Ward V. Sheppard (3 N. C 283).

717.
Ward V. Walker (111 Iowa, 611),

1422.
Ward V. Walton (4 Ind. 75), 1195.
Ward V. Wandell (10 Pa. St. 98),

585.
Ward & Co. v. Robertson (77 Iowa,

159), 418.
Wardlow v. Herrington (54 S. E.

Rep. 699), 1126.
Ware v. Lithgow (71 Me. 62), 699.
Ware v. Ware (6 N. J. Eq. 117),

724.
Warfield v. Oliver (23 La. Ann.

612), 1415.
Waring v. King (8 M. & W. 571)

577.
Warne v. Waggoner (15 Atl. Rep.

1507), 1188.
Warner v. Abbey (112 Mass. 345),

686, 690.
Warner v. Cochrane (128 Fed.

Rep. 553), 645, 654, 1058, 1079.
Warner v. Hitchins (5 Barb. N. Y.

■666), 883, 895.
Warner v. Rice (31 Ark. 344),

1410, 1411.
Warren v. Jones (70 Miss. 202),

1430, 1432.
Warren v. Wagner (75 Ala. 188).

892, 1130, 1160, 1170, 1176, 1180.
Warren, In re (4 Ct. CI. 526), 874.
Warrill v. Barnes (57 Ga. 404),

1424.
Warstell v. Ward (1 Bush. Ky.

198), 1466.

Washburn v. Frank (31 La. Ann.

427), 1446.
AVashington v. Conrad (2 Humph.

Tenn. 562), 924.
Washington v. Williamson (23 Md

244), 1441.
Washington Co. v. Roger Williams

Silver Co. (25 R. I. 483), 1069.
Washington Natural Gas Co. v.

Johnson (123 Pa. St. 576), 1081.
Watchman v. Crook (5 Gill & J.

239), 604.
Waterhouse v. Joseph Schlitz .(12

S. D. 397), 798.
Waterman v. Clark (58 Vt. 601),

1271.
Waterman v. Harkness (2 Mo.

App. 494), 1014.
Waters v. Reuber (16 Neb. 99),

1265.
Watkins v. Duvall (69 Miss. 364),

1412.
Watkins v. Goodall (138 Mass

533), 804, 813, 816.
Watkins v. Green (22 R. I. 34),

465.
Watriss v. First National Bank

(130 Mass. 343), 914.
Watriss v. First Nat. Bank (124

Mass. 571), 1269, 1287, 1290.
Watson V. Almirall (70 N. Y. Supp

662), 848, 855.
Watson V. Duke of Northumber-
land (11 Ves. Jr. 153), 572.
Watson V. Home (7 B. & C. 2S5),

1007.
Watson V. Hospital (14 Ves. 333).

874.
Watson v. Hunkins (13 Iowa, 547),

1112.
Watson V. Huntoon (4 III. App

291), 563.
Watson V. Merrill (136 Fed. Rep.

359), 1239.
Watson V. Moulton (100 111. App.

560), 847, 855.

cexxiv

TABLE OF CASES CITED,

[references ake to pages.]

Watson V. Shackford (95 Me. 69),

789.
Watson V. Smith (10 Yerg. Tenn.

476), 964.
Watson V. Waud (8 Ex. 335), 556.
Watt V. Scofield (76 111. 261), 1420,

1431, 1432, 1457.
Watts V. Coffin (11 Johns. N. Y.

495), 877.
Watts V. Kellar (56 Fed. Rep. 1),

981.
Watts V. Lehmann (107 Pa. St.

106), 1301.
Way V. Meyers (64 Ga. 760), 1131.

1132.
Way V. Reed (6 Allen, Mass 364),

637, 1094.
Wayland v. Mosely (5 Ala. 430),

549.
Weatherall v. Geering (12 Ves.

504), 1066.
Weatherbury v. Baker (25 La.

Ann. 229), 1044.
Weathersby v. Sleeper (42 Miss.

732), 1250, 1264.
Weaver v. Earle (5 Gush. 31), 723.
Weaver v. Southern Oregon Co.

(31 Oreg. 14), 575.
Webb V. Arnold (52 Ark. 358).

1465.
Webb V. Austin (7 M. & G. 701),

952, 953.
Webb V. King (21 App. D. C 141),

667, 1032.
Webb V. Marshall (13 Wall. U. S.

15), 1422.
Webb V. Plummer (2 B. & Ad.

746), 603, 1314.
Webb V. Russell (3 T. R. 401),

1206.
Webb V. Sharpe (80 U. S. 14).

1436, 1454.
Webb V. Weaver (79 111. App. 657),

573.
Weber v. Gage (39 N. H. 182), 440.
Weber v. Liebermann (94 N. Y.

Supp. 460), 82f>.

V/ebster v. Cooper (14 How. U. S.

501), 640.
Webster v. Nichols (104 111. 160),

615, 644, 647, 1034, 1068, 1407.
Webster v. Nosser (2 Daly, N. Y.

186), 878.
Weddall v. Capes (1 M. & W.

5052), 1196.
Weeber v. Hawes (80 Minn. 476),

1358.
Weed V. Crocker (13 Gray, Mass.

219), 513, 1364.
Weed V. Standley (12 Fla. 166),

1402.
Weeks v. International Trust Co.

125 Fed. Rep. 370), 637.
Weeton v. Woodcock (7 M. & Q.

14), 1287.
Wegner v. Lubenow (12 N. D. 95),

503, 504.
Weichelbaum v. Burlett (20 Kan.

709), 956.
Weide v. St. Paul Boom Co. (99

N. W. Rep. 421), 1068.
Weider v. McComb (10 Tex. Civ.

App. 85), 933.
Weigall V. Waters (6 T. R. 488).

851.
Weil V. Abraham (66 N. Y. Supp.

244), 735.
Weil V. Abrahams (100 N. Y. St.

Rep. 244), 759.
Weil V. Gilchrist (52 Ohio St. 677),

899.
Weil V. Monro (3 N. Y. Supp. 25),

419.
Weinberg v. Greenberger (93 N.

Y. Supp. 530). 587.
Weinberger v. Kratzenstein (71

App. Div. 155), 820.
Weiner v. Baldwin (9 Kan. App.

772), 1222.
Weinhandler v. Eastern Brewing

Co. (89 N. Y. Supp. 16), 1070.
Weinmann's Estate In re (30 Atl.

Rep. 389), 1062.

TABLE OF CASES CITED.

CCXXV

[references are to pages.]

Weinstein v. Harrison (60 Tex.

4J6), 848, 849.
Weisbrod v. Dembowsky (25 Misc.

Rep. 485), 644.
Weiss V. Mendelson (24 Misc. Rep.

692), 1205, 1240.
Weitheimier v. Circuit Court (83

Micli. 5), 1060.
Welch, In re (108 Fed. Rep. 367),

1254.
Welch V. Fitterling (72 Minn. 483),

641, 644.
Welch V. Horton (73 Iowa, 250),

491, 1112, 1115.
Welch V. Walsh (177 Mass. 555),

593.
Welcome v. Hess (90 Cal. 507),

1200, 1213, 1293.
Welcome v. Labonte (63 N. H.

124), 519.
Weld V. Clayton le Moors Urban

Council (86 Law T. 584), 1029.
Weldon v. Harrison (17 Johns.

N. Y. 66), 1052.
Well V. Raymon (142 Mass. 206),

1054.
Weller v. McConnick (19 'Atl. Rep.

1102), 825.
Wellmaker v. Wheatley (123 Ga.

201), 982.
Wells V. Cody (112 Ala. 278), 1117.
Wells V. Higgins (132 N. Y. 459),

1123.
Wells V. Mason (5 111. 84), 934,

1171.
Wells V. Sheerer (78 Ala. 142), 965.

972.
Wells V. Thompson (50 Ala. 83),

1437, 1438.
Welsh V. Phillips (54 Ala. 309),

1228.
Weltman v. August (11 Tex. Civ.

App. 604), 1284.
Weltner's Appeal (03 Pa. St. 302),

1441.
Went worth v. Railroad Co. (55 N.

H. 540), 685.

Werdner v. Foster (2 P. & W. Pa.

26), 1080.
Werner v. Footman (54 Ga. 128),

465.
Werner v. Padula (167 N. Y. 641),

1358.
Wertheimer v. Circuit Court (83

Mich. 56), 733.
Wertheimer v. Hosmer (83 Mich.

56), 757.
Wertheimer v. Saunders (95 Wis.

573), 802, 803.
Wescott V. Delano (20 Wis. 514),

1316.
Wesener v. Smith (85 N. Y. Supp.

837), 834.
Wessel V. Gerken (36 Misc. Rep.

221), 817, 822.
West V. Blakeway (2 Man. & Gr.

727), 1281.
West V. Davis (7 East, 363), 634.
West V. Dobb (10 B. & S. 987), 612,

1056.
West V. Lassels (Cro. Eliz. 851),

541.
West V. Louisville, etc. Co. (8

Bush, Ky. 404), 794.
West V. Price (2 J. J. Marsh. Ky.

380), 958.
West V. Sink (2 Yeates, Pa. 374),

1443, 1444.
West Chicago Masonic Ass'n v.

Cohn (192 111. 210), 825.
Western v. Russell (3 Ves. & B.

192), 982.
Western Granite & Marble Co. v.

Knickerbocker (103 Oal. Ill),

409.
Western N. C. R. Co. v. Deal (90

N. C. 110), 1232.
Western N. Y. & P. Ry. Co. v.

Rieck (83 App. Div. 576), 1369.
Western Union Tel. Oo. v. Smith

(64 Ohio St. 106), 681.
West Ham Board v. East London

Waterworks Co. (69 Law J. Ch.

257), 707.

cexx\a

TABLE OP CASES CITED.

[eeferences are to pages.]

West Koslikonong v. Ottesen (80

Wis. 62), 944.
Westlake Degraw (25 Wend. N. Y.

669), 877.
Westmoreland v. Cambria Co. (130

Pa. St. 233), 634.
Westmoreland v. Foster (60 Ala.

44), 1118.
Westmoreland v. Wooten (58 Miss.

825), 1429, 1457.
Westmoreland Natural Gas Oo. v.

De Witt (130 Pa. St. 235), 645.
Weston V. Collins (34 L. J. Cli.

353), 991.
West Shore Mills Co. v. Edwards

24 Oreg. 475), 492,' 503, 920, 936.

1111, 1112.
West Shore R. Co. v. Wenner (79

N. J. L. 233), 612 1051.
West Side Auction House Co. v.

Ct. Ins. Co. (85 111. App. 497),

1216.
West Side Savings Bank v. New-
ton (76 N. Y. 616), 784, 1142,

1148.
West Transportation Co. v. Lan-
sing (49 N. Y. 499), 1365, 1374.
West Virginia, etc. v. Mclntire (44

W. Va. 210), 616.
Wetherell v. Joy (40 Me. 325), 552.
Wetherill v. Gallagher (211 Pa.

St. 306), 1261.
Wetmore v. Robinson (2 Conn.

529), 439.
Wetsel V. Mayers (91 111. 497),

1441.
Wetzel V. Meranger (85 111. App.

457), 1298.
Wetzell V. Richcreek (53 Ohio St.

62), 1077, 1088.
Whalen v. Kauffman (19 Johns,

N. Y. 97), 604.
Wharton v. Anderson (28 Minn.

301), 555.
Wheat V. Watson (57 Ala. 581),

1199.

Wheeler v. Bedell (40 Mich. 693),

1246.
Wheeler v. Bedford (54 Conn.

244), 440, 441.
Wheeler v. Crawford (86 Pa. St.

327), 850.
Wheeler v. Dascomb (3 Cush.

Mass. 285), 620.
Wheeler v. Earle (5 Cush. Mass.

35), 612, 616, 768, 769.
Wheeler v. Foote (97 S. W. Rep.

447), 957.
Wheeler v. Gilsey (35 How. Prac

N. Y. 139) 441.
Wheeler v. Stevens (6 H. & N.

155), 1236.
Wheeler v. Walden (17 Neb. 122),

1195, 1199, 1200.
Wheeler v. Warschauer (21 Cal.

309), 934. . .

Wheelock v. Warshauer (34 Cal.

265), 1171, 1173.
Wheeton v. Woodcock (7 Mee. &

Wei. 14), 1265.
Whetstone v. Davis (34 Ind. 510)

1381.
Whetstone v. McCartney (32 Mo.

App. 430), 559, 1093.
Whidden v. Toulmin (6 Ala. 104).

1441.
Whipley v. Dewey (8 Cal. 35),

1285.
Whipple v. Foot (2 Johns. N. Y.

418), 1306, 1329.
Whipple V. Gorsuch (101 S. W.

Rep. 735), 692. .
Whipple V. Tucker (123 111. App.

223), 465.
Whitaker v. Hawley (Cy. 4 687),

1342, 1342.
Whitcomb v. Cummings (68 N. H.

67), 1094.
Whitcomb v. Mason (62 Atl. Rep.

749), 423, 804, 813.
Whitcomb v. Starkey (G3 N. H.

607), 1081.

TABLE OF CASES CITED.

CCXXVU

[references ABE TO PAGES.]

White V. Albany Railway Co. (17

Hun. N. Y. 95), 857.
White V. Arndt (1 Whart. Pa. 91),

1270.
White V. Berry (24 R. I. 74), 1235.
White V. Bradley (6G Me. 254), 410.
White V. Campion (1 W. N. C. Pa.

130), 855.
White V. Grennish (11 C. P. N. S.

209), 1229.
White V. Griffing (44 Conn. 437),

1121.
White V. Harrow (86 L. T. 4), 409.
White V. Hotel (1897) (1 Oh. 767),

616, 769.
White V. Kane (53 Mo. App. 300),

1112.
White V. Loomis (27 Hun, N. Y.

328), 1083.
White V. McAllister (67 Mo. App.

314), 1452.
White V. McMurray (2 Brewst. Pa.

485), 665.
White V. Molyneux (2 Ga. 124),

1340, 1345.
White V. Montgomery (58 Ga.

204), 828, 840.
White V. Southend Hotel Co. (66

L. J. Ch. 387), 768.
A\Tiite V. Thomas (52 Miss. 49, 52),

1456.
White V. Thurber (55 Hun, 447),

700, 854, 864.
White V. Wagner (4 Har. & J. 373),

721, 733.
White V. Wakley (26 Beav. 17),

889, 962.
White V. Walker (38 111. 422), 556.
White V. Warner (2 Mer. 459), 667,

1038.
White V. Weaver (68 N. J. Eq.

644), 982.
White's Appeal (10 Pa. St. 252),

1232.
Whitehead v. Clifford (5 Taunt.
518), 576, 1210, 1238.

Whitehead v. Comstock Oo. (25 R.

I. 423), 427, 783, 823.
Whitehouse v. Aiken (77 N. E.

Rep. 499), 408.
Whitfield v. Brandwood (2 Stark.),

1007.
Whiting V. Edmunds (94 N. Y.

309), 958, 965.
Whiting V. Eichelberger (16 Iowa,

422), 1404.
Whitley v. Gough (2 Dyer, 140),

1200.
Whitlock V. Duffield (1 Hoff. Ch.

N. Y. 110), 1363, 1367.
Whitlock's Case (8 Coke, 69b),

529.
Whitman v. Louten (3 N. Y. Supp.

754), 1236.
Whitmarsh v. Cutting (10 Johns,

360), 1306, 1311.
'^Tiitmore v. Humphries (41 L. J-

C. P. 43), 961.
"Wliitmore v. Orono Co. (91 Me.

297), 788.
Whitney v. Allaire (4 Denio, N. Y.

554), 480.
Whitney v. Farrar (51 Me. 418),

1450.
Whitney v. Myers (8 N. Y. Super

Ct. 266), 1195, 1201, 1213.
Whitney v. Olney (3 Mason, U. S.

280), 448.
Whitney v. Railway (11 Gray,

Mass. 359), 742.
Whitney v. Sweet (22 N. H. 10),

1299.
Whitton V. Peacock (2 Bing. N. C.

411), 941.
Wick. V. Bredin (1S9 Pa. St. S3),

1286.
Wickenden v. Webster (5 El. & B.

387), 739.
Wickey v. Eyster (58 Pa. St. 501),

1441.
Wiener v. Baldwin (9 Kan. App.
772), 1213.

QCXXVIH

TABLE OF CASES CITED.

[references are to pages.!

Wiggin V. Wiggin (58 N. H. 235),

927.
Wiggins V. St. Louis, M. & S. E. R.

Co. (95 S. W. Rep. 311), 681.
Wiggins Ferry Co. v. Railroad Co.

(142 U. S. 396), 1249.
Wigglesworth v. Dallison (1 Doug.

210), 1313, 1314.
Wilber v. Follansbee (97 Wis.

577), 814.
Wilbraliam v. Livesy (18 Beav.

206), 607.
Wilcox V. Gate (65 Vt. 478), 729,

783.
Wilcox V. Cartwright (1 Lack. Leg.

Rec. Pa. 130), 638.
Wilcox V. Hines (100 Tenn. 524),

791, 859.
Wilcox V. Pa. etc. Co. (15 W. N.

Cas. Pa. 367), 1154.
Wilcox V. Zane (167 Mass. 302),

804.
Wilcoxen v. McCray (38 N. J. Eq.

466), 404.
Wilcoxin v. Donnelly (90 N. Car.

245), 492.
Wilczinski v. Lick (68 Miss. 596),

1436.
Wilde V. Cantillon (1 Johns. Cas.

N. Y. 123), 686.
Wilder v. Beed (4 Ohio, N. P. 440),

1060.
Wildey Lodge v. City of Paris (73

S. W. Rep. 69), 645, 1044, 1058.
Wildman v. Taylor (4 Ben. 42),

639.
Wildrick v. Swain (34 N. J. Eq.

167), 549.
Wild's Lessee v. Serpell (10 Gratt.

Va. 405), 923.
Wiley V. Conner (44 Vt. 68), 1318.
Wilgus V. Gettings (21 Iowa, 177),

1250.
Wilgus V. Whitehead (8 Pa. St.

131), 460, 556.
Wilkerson v. Farnham (82 Mo.

672), 1277.

Wilkerson v. Thorp (128 Cal. 221),

1458.
Wilkes V. Davis (3 Mer. 509), 1293.
Wilkins v. Pensacola City Co. (36

Fla. 36), 965, 972.
Wilkins v. Wingate (6 Term. Rep.

62), 581.
Wilkinson v. Clauson (29 Minn.

91), 698, 782.
Wilkinson v. Colley (5 Burr. 2694),

1124.
Wilkinson t. Hull (1 Bing. 713),

609.
Wilkinson v. Ketler (69 Ala. 435),

1315, 1424.
Wilkinson v. Libby (1 Allen, Mass.

375), 1015.
Wilkinson v. Pettit (47 Barb. N. Y.

230), 616, 1081, 1391.
Wilkinson v. Rogers (10 Jur. N. S.

5), 617, 737, 757.
Wilkinson v. Stanley (43 S. W.

Rep. 606), 1186.
Wilkinson v. Wilkinson (62 Mo.

App. 519.
Willard v. Benton (57 Vt. 286).

638.
Willard v. Rogers (54 111. App

583), 1423.
Willard v. Tayloe (8 Wall. U. S.

558), 981, 982.
Willard v. Tillman (19 Wend. N.

Y. 358), 1340.
Willard v. World's Fair Encamp-
ment Co. (59 111. App. 336), 140 7,

1428.
Williams v. Baker (41 Md. 523),

448.
Williams v. Bartholemew (1 Bos.

& Pul. 326), 530.
Williams v. Bosanquet (1 Brod. &

Bing. 238), 1081, 1106.
Williams v. Braden (2 Mo. App.

Rep'r 846), 1419, 1457.
Williams v. Burrell (1 Com. Bench

402), 614.

TABLE OP CASES CITED.

CCXXIX

[references ABE TO PAGES.]

Williams v. Cash (27 Ga. 507), 920,

949.
William Clun's Case (10 Coke,

127b), 531.
Williams v. Craig (2 Edw. Ch. N.

Y. 297), 1020.
Williams v. De Lisle Store Com-
pany (104 Mo. App. 567), 1432.
Williams v. Downing (18 Pa. S*^^.

60), 1074, 1107.
Williams v. Earle (9 B. & S. 740),

617.
Williams v. Exhibition Co. (188

111. 19), 1296.
Williams v. Gabriel (75 L. J. K. B.

149), 1180.
Williams v. Garrison (29 Ga. 503),

964.
Williams v. Glover (66 Ala. 189),

512.
Williams v. Hay ward (1 El. & El.

1040), 485, 1118, 1145.
Williams v. Iliphant (3 Ind.), 694.
Williams v. Kent (67 Md. 350),

463, 1009.
Williams v. Ladew (171 Pa. St.

369), 578.
Williams V. Lane (62 Mo. App. 66),

1264, 1287.
Williams v. Lilley (67 Conn. 50),

999.
Williams v. McAiley (Cheves, S. C.

20), 958, 960.
Williams v. McFall (2 S. & R. Pa.

280), 798.
Williams v. Mershon (57 N. J.

Law, 242), 1382.
Williams v. Michigan Cent. R. Co.

(10 Det. Leg. N. 238), 1025,

1096.
William v. New Albany & S. R.

Co. (5 Ind. 111.), 870.
Williams v. Towl (65 Mich. 204),

955, 956.
Williams v. Vanderbret (145 111.

238), 648, 657, 1195, 1200, 1213.

Williams v. Wait (2 S. D. 210),

927, 937.
Williams v. Williams (12 East,

209), 1258.
Williams v. Williams (43 L. J. C.

P. 382), 891.
Williams v. Woodward (2 Wend.

N. Y. 487), 1069.
Williamson v. Crassett (62 Ark.

393), 1195, 1236.
Williamson v. Russell (18 W. Va.

612), 955.
Williamson v. Stevens (82 N. Y.

Siipp. 1047), 695.
Willi V. Drj'den (52 Mo. 319),

1087.
Willington v. Brown (8 Q. B. 169),

942.
Willis V. Astor (4 Edw. Ch. N. Y.

594), 1363, 1369.
AVillis V. Branch (94 N. Car. 142),

5G5.
Willis V. McKinnon (165 N. Y.

612), 952.
Willis V. Moore (59 Tex. 628),

482, 1316, 1329.
Willoughby v. Atkinson Furn. Co.

(93 Me. 185), 820, 895, 1379.
Vv illoughby v. Lawrence (116 111.

11), 644, 1068, 1110.
Wills V. Gas Co. (130 Pa. St. 222),

641, 643, 644.
Wills V. Summers (45 Minn. 90),

1021, 1080.
Willy V. Mulledy (78 N. Y. 310),

916.
Wilmot V. Smith (3 Car. & P.

453), 537.
Wilson V. Been (74 N. Y. 531),

458.
Wilson V. Douglas (2 Strobh. S

C. 97), 672.
Wilson v. Edwards (3 B. & Cr.

734), 798.
Wilson V. Gerhardt (9 Colo. 585),

1092, 1093.

■ci-xxx;

TABLE OF CASES CITED.

[eEFERENCES ABE TO PAGES.]

Wilson V. Goldstein (152 Pa. St.

524), 629.
Wilson V. Hart (35 L. J. Ch. 569),

740, 769, 77"1.
Wilson V. Hatton (L. R. 2 Exch.

Div. 336), 785.
Wilson V. Hunter (14 Wis. 683),

446.
Wilson V. Jones (1 Bush, Ky.

173), G32, 666.
Wilson V. Leonard (3 Beav. 373),

1105.
Wilson V. Lerche (90 Mo. 473),

958.
Wilson V. Lunt (11 Colo. App. 56),

1092.
Wilson V. Lyons (94 N. W. Rep.

636), 482.
Wilson V. Pa. Trust Co. (114 Fed.

Rep. 742), 1240.
Wilson V. Phillips (2 Bing. 13),

621.
Wilson V. Raybould (56 111. 417),

1186.
Wilson V. Sewell (4 Burr. 1980),

1201, 1202.
Wilson V. Smith (5 Yerg. Tenn.

379), 922, 953, 1132, 1133.
Wilson V. State (39 So. Rep. 776),

1449.
Wilson V. Stewart (69 Ala. 302),

1458.
Wilson V. Treadwell (81 Cal. 58),

873.
Wilson V. Twamler (73 J. K. B.

703), 770.
Wilson V. Wilson (2 Vt. 68), 439.
Wilson V. Woolfryes (6 M. & S.

341), 953.
Wimp V. Early (104 Mo. App. 85).

1453.
Winant v. Hines (14 Daly, N. Y.

187), 1207, 1214.
Windom v. Stewart (43 W. Va.

711), 869.
Windsor Hotel Oo. v. Hawk (49

How. Pr. N. Y. 257), 453.

Wineman v. Hug'hson (44 111. App.

22), 1112.
Winestein v. Ziglatski-Marks Co.

(77 Conn. 404), 483.
Winfrey v. Work (75 Mo. 55),

1228.
Wing V. Gray (36 Vt. 261), 462,

760, 763.
Wingard v. Banning (39 Cal. 543),

1460.
Wink V. Early (104 Mo. App. 85),

1318.
Winkler v. Gibson (2 Kan. App.

621), 1323.
Winn V. Bull (47 L. J. Ch. 139),

388.
Winn V. Spearing (26 La. Ann.

384), 877.
Winn V. State (55 Ark. 360), 910..

1283.
Winn V. Strickland (34 Fla. 610),

934, 968.
Winne v. Hammond (37 111. 99),

1445.
Winne v. Kelley (34 Iowa, 339),

879.
Winship v. Pitts (3 Paige, N. Y.

259), 713.
Winslow V. Bait. & Ohio R. Co.

(188 U. S. 646), 1374.
Winslow V, Rand (29 Me. 362),

491.
Winston V. Academy (28 Miss.

118), 679, 920.
Winter v. Dumerque (12 Jur. N. S.

726), 1071.
Winterbottom v. Wright (10 Me.

& Wei. 109^, 913.
Winterfield v. Strauss (24 Wis.

394), 492.
Winterink v. Maynard (47 Iowa,

366), 533.
AVinton v. Cornish (5 Ohio, 477),

1158, 1342, 1343.
Winward v. Robbins (3 Humph.

(Tenn. 614), 940.

TABLE OF CASES CITED.

CCXXXl

[referexces are tg pages.]

Wisdom V. Newberry (30 Mo. App.

241), 879, 869.
Wise V. Decker (30 Fed. Cas. No.

17,906), 560.
Wise V. Faulkner (51 Ala. 359),

49i, 492.
Wise V. Ffaaf (98 Md. 576), 1113.
Wisner v. Ocumpaiigh (71 N. Y.

113), 1408.
Wister v. Campbell (10 Phila. Pa.

359), 1238.
Withers v. Larrabee (48 Me. 570).

1208.
Witherspoon v. Nickels (27 Ark.

332), 1252.
Withington v. Nichols (187 Mass.

575), 541.
Witman v. Watry (31 Wis. 638),

1199, 1213.
Witte V. Quinn (38 Mo. App. 681),

1180, 1182.
Witte V. Witte (6 Mo. App. 488),

558.
Witty V. Matthews (52 N. Y. 512),

850.
Witty V. Williams (12 W. R. 755),

526.
Wix V. Rutson (68 L. J. Q. B.

298), 1027, 1030.
Wolcott V. Hamilton (61 Vt. 79),

1318, 1319.
Wolcott V. Sullivan (6 Paige, Ch.

N. Y. 117), 860.
Wolf V. Holton (92 Mich. 136),

949.
Wolf V. Johnson (3 Miss. 513), 934.
Wolf V. Weiner (2 Brewst. Pa.

524), 1180.
Wolfe V. Arrott (109 Pa. St. 473),

459, 471.
Wolgamot V. Brunner (4 Har. &

McH. Md. 89), 547.
Wolveridge v. Steward (1 Cr. &

M. 644), 1085.
Womack v. McQuarry (28 Ind.

103), 1158, 1340.

Womble v. Leach (83 N. C. 84),

1418.
Wood V. Bogle (115 Mass. 30),

1020.
Wood V. City of Williamsburg (46

Barb. N. Y. 601), 685.
Wood V. Day (7 Taunt. 646), 953.
Wood V. Drouthett (44 Tex. 36.5),

959.
Wood V. Hubbell (10 N. Y. 479),

1190, 1352.
Wood V. Londonderry (10 Beav.

465), 1116.
Wood V. Partridge (11 Mass. 488),

522, 539.
Wood V. Sharpless (174 Pa. St.

588), 456, 879, 869.
Weed V. Turner (7 Humph. Tenn.

517), 944.
Wood V. Welz (167 N. Y. 570), 596.
Woodbridge v. Connor (49 Me.

353), 690.
Woodbury v. Butler (67 N. H.

545), 489.
Woodbury v. Short (17 Vt. 387),

431.
Woodbury v. Swan (59 N. H. 22),

957.
Woodcock V. Carlson (41 Minn.

542^ 1318.
Woodhull T. Rosenthal (61 N. Y.

382), 1048.
Woodman v. Railroad Co. (149

Mass. 335), 803.
Woodrow V. O'Connor (28 Vt.

776), 1274.
Woodruff V. Halsey (8 Pick. Mass.

333), 690.
Woodruff V. Oswego Starch Co.

(74 N. Y. Supp. 961), 1035.
Woods V. Charlton (62 N. H. 649),

1329.
Woods V. Cotton Co. (134 Mass.

357), 813.
Woods V. Edison Elec. 111. Co. (184

Mass. 523), 456.

eexxxii

TABLE OP CASES CITED.

[refekexces are to pages.]

Woods V. Hyde (31 L. J. Ch. 295),

994.
Woods V. Naumkeag Mfg. Co. (134

Mass. 357), 782, 816, 822.
Woodward v. Gyles (2 Vern. 119),

765.
Woodward v. Lindley (43 Ind.

433), 1218, 1226.
Woodworking Co. v. Southwick,

(119 N. Car. 611), 1250.
Woodworth v. Harding (77 N. Y.

Supp. 969), 1120.
Woodworth v. Thompson (44 Neb.

311), 856.
Woolcock V. Dew (1 F. & F. 337),

886.
Wooler V. Knott (45 D. J. Ex.

313), 622.
Wooley V. Osborne (39 N. J. Eq.

54, 59), 874.
Woolley V. Maynes (15 Utah, 341),

1459.
Woolley V. Watling (1 Car. & P.

610), 576.
Woolsey v. Abbott (65 N. J. Law,

253), 1114.
Woolsey v. Henke (125 Wis. 134),

460.
Worley v. Frampton (5 Hare.

500), 1395.
Worthington v. Ballauf (6 Ohio

Dec. 1121), 1101.
Worthington v. Cooke (58 Md.

51), 541.
Worthington v. Hewes (19 Ohio

St. 66), 5G9.
Worthington v. Lee (61 Md. 530),

551.
Worthington v. Parker (11 Daly,

N. Y. 545), 864.
Worrill v. Barnes (57 Ga. 404),

1457.
Wooten V. Gwyn (56 Miss. 422),

1432.
Wootley V. Gregory (2 Y. & J.

536), 1237.

Wray v. Rhinelander (39 How. Pr.

N. Y. 299), 1276, 1283, 1398.
Wray-Austin Mach. Co. v. Flower

(12 Det. Leg. N. 214), 1222.
Wright V. Bircher (72 Mo. 179),

1405, 1427, 1428, 1434.
Wright V. Burroughs (3 C. B.

685), 490, 641.
Wright V. DuBignon (114 Ga.

765), 1244, 1256.
Wright V. E. M. Dickey (83 Iowa,

464), 1451, 1452.
Wright V. Everett (87 Iowa, 697),

76L
Wright V. Freeman (5 Har. & J.

487), 439.
Wright V. Hardy, Miss. (24 So.

Rep. 697), 489.
Wright V. Heidorn (6 Ohio, Dec.

151), 616.
Wright V. Howard (1 Sim. & Stu.

190), 432.
Wright V. Jessup (87 Pac. Rep.

930), 956.
Wright V. Kelly (4 Lans. N. Y.

57), 1090.
Wright V. Lattin (38 111. 293),

876, 1182.
Wright V. MacDonnell (88 Tex.

140), 1265, 1289.
Wright V. Newton (2 C. M. & R.

124), 1057.
Wright V. Perry (188 Mass. 268),

801.
Wright V. Roberts (22 Wis. 161),

1336.
Wright V. Tuttle (4 Day, Conn.

313), 599.
Wrottesley v. Adams (2 Dyer.

177), 1200.
Wander v. McLean (124 Pa. St.

334), 792.
Wunderlich v. Reis (34 Hun. N.

Y. 1), 1104.
Wusthoff V. Schwartz (32 Wash.

327), 1142, 1155, 1170.

TABLE OF CASES CITED.

CCXXXlll

[referexces ake to pages.]

Wyatt V. Stagg (5 Bing. N. C.

564), 1197.
Wyatt V. Turner (37 Ga. 640),

1404.
WyckofE V. Frommer (12 Misc.

Rep. 149), 1176.
Wyckoff V. Schofield (98 N. Y.

475), 1125.
Wyman v. Farrar (35 Me. 64),

428.
Wyndham v. Way (4 Taunt. 316),

1259.
Wynne v. Haight (27 App. Div.

7), 802, 855.
Wyoming Coal Co. v. Price (81

Fa. St. 156), 951.
Wyse V. Russell (16 Misc. Rep

53), 1141.

T.

Yarborough v. Monday (2 Dev. S.

C. 493), 332.
Yarnall v. Haddaway (4 Har. Del

437), 1466.
Yates V. Bachley (33 Wis. 185),

1176.
Yates V. Kinney (19 Neb. 275),

139, 312.
Yates V. Smith (11 111. App. 459),

1325. 1327.
Yaw V. L'eman (1 Wils. 2), 1007.
Yeager v. Weaver (64 Fa. St. 425),

695.
Yeazel v. White (40 Neb. 432),

1326.
Yellow Jacket Silver Min. Co. v.

Stevenson (5 Nev. 224), 66.
Yesler's Estate v. Orth (24 Wash.

483), 159.
Yocum v. Barnes (8 B. Mon. Ky.

496), 599.
Yonge v. Bradford (Hob. 3), 20.
York V. Carlisle (19 Tex. Oiv. App.

269), 1423, 1432.

York V. Jones (2 N. H. 454), 1228.
York V. Steward (21 Mont. 515),

697, 1140.
Youmans v. Caldwell (4 Ohio, St.

71), 465.
Young V. Burhans (80 Wis. 428),

867, 878.
Young V. Bransford (12 Lea Tenn.

244), 805.
Young V. Collett (6 N. W. Rep.

115), 784, 1151.
Young V. Ellis (91 Va. 297), 538.
Young T. Gay (41 La. Ann. 758),

313.
Young V. Hefferman (67 111. App.

354), 927.
Young V. Kimball (23 Fa. St.

193), 1460.
Young V. Faul (10 N. J. Eq. 401),

326.
Young V. Feyser (3 Bos. N. Y.

308), 1061.
Young V. Smith (28 Mo. 65), 155,

182.
Young V. Spencer (10 Barn. &

Cres. 145), 713.
York V. Stewart (21 Mont. 515),

782.
Young V. Ward (33 Me. 359), 327.
Young V. West Side Hotel Co. (2

Ohio, Dec. 140), 1447.
Young V. Wrightson (11 Ohio,

Dec. 104), 570.
Youngblood v. Enbank (68 Ga.

630), 1264.
Younggreen v. Shelton (101 111.
App. 89), 679.

Z.

Zachry v. Stewart (67 Ga. 218),

1412.
Zapp V. Johnson (87 Tex. 641),

1454.

CCXXXIV

TABLE OF CASES CITED,

[eefekexces are to pages.]

Zarkowski v. Astor (13 Misc. Rep.

507), 1274.
Zeiter v. Bowman (6 Barb. N. Y.

133), 590.
Zeysing v. Welbourn (4 Mo. App.

352), 1228.
Ziegler v. Brennan (75 App. Div.

584), 812.
Zigler V. McClellen (15 Oreg. 499),

882.
Zink V. Bohn (3 N. Y. Supp. 4),

329, 489.

Zink V. Grant (25 Oliio St. 352),

776.
Zimmer v. Black (59 Hun, N. Y.

826), 1348.
Zinnel v. Bergdoll (9 Pa. Super.

Ct. 522), 303.
Zouch d. Abbotts v. Parsons (3

Burr. 1794), 1202.
' Zouch d. Ward v. Willingdale (1

H. Bl. 311), 648.
Zule V. Zule (24 Wend. N. Y. 76),

539.

LANDLORD AND TENANT.

CHAPTER I.

THE PARTIES TO THE LEASE.

§ 1. The general rule.

2. Leases by life tenants.

3. Leases by life tenants under a power.

4. The termination of terms created by a life tenant as a landlord.

5. The validity of lease by tenants for years.

6. Guardianship in general.

7. The liability of an intruder as guardian.

8. The power of a guardian in socage.

9. The power of testamentary guardians.

10. The power to lease of a guardian appointed by a court.

11. When the permission of the court to the making of the lease is

required.

12. Limitations upon the power of a guardian to lease.

13. The duty of the guardian to lease.

14. The guardian's duty to collect rents.
IZ. Formal requisites of the lease.

16. Covenants by guardians.

17. An infant's liability for rent.

18. The ratification of a lease made by an infant.

19. The invalidity of a lease made by a fevie sole.

20. The effect of her marriage upon a lease made by a feme sole.

21. The invalidity of a lease made by a feme covert at the common

law.

22. The husband's power at common law to lease lands of the wife.

23. The right of a married woman to lease under the modern stat-

utes.

24. The effect of the death of the husband or wife upon a lease made

by the wife.

25. The control of the husband over leases held by the wife as ex-

ecutrix.

26. The disposition of a term by the husband of a lessee to take

effect at his death.

27. Leases of community property.
The modern rule as to the relation of mortgagor and mortgagee.

1

28.

2 LAW OP LANDLORD AND TENANT.

§ 29. The right of the mortsagee to the rent at the common law

30. The appointment and powers of a receiver in foreclosure.

31. The effect of a foreclosure upon the tenant's rights.

32. The right to rents of the purchaser on a sale under foreclosure.

33. The power of the Federal government to lease lands.

34. The validity of leases of lands owned by Indians.

35. Leases by aliens.

36. Leases to aliens.

37. The effect of the death of the lessee on leases for terms of years.

38. The expiration of a lease for years on the death of the lessee.

39. The liability of the personal representative of the deceased

lessee of a term of years.

40. The remedies of the personal representative of the lessee.

41. The rights of an executor of a lessor.

42. The liability of a personal representative for rents.

43. The power of an administrator to lease the lands of his intes-

tate.

44. The power of an administrator with the will annexed to lease.

45. The general rule as to the power of executor to make leases.

46. A lease which is executed by one of several executors or admin-

istrators.

47. A lease by an executrix being a feme sole.

48. The equitable jurisdiction over leases made by executors.
48a. The power of trustees to grant leases.

48b. The proper covenants in leases by trustees.
48c. Signature by one of two or more trustees.
48d. The personal liability of the trustee.

§ 1. The general rule. As a general rule any person who
has capacity to make a valid contract may enter into a lease
either as landlord or tenant. This rule is subject to the excep-
tions which are recognized by the law of contracts. In the fol-
lowing sections we shall enumerate and examine certain parti-
cular classes of lessors and lessees, and determine so far as pos-
sible the extent of the power to contract so far as the power
to contract is limited and defined by the particular facts of
each case and the nature of the position occupied by the land-
lord or tenant.

§ 2. Leases by life tenants. A tenant of a life estate may
convey all or any portion of his estate by deed or parol lease.
If he conveys all his estate it is an assignment of it. If he
grants a term for years it is a lease.^ Any lease he may grant,

iMcC^mpbell v. McCampbell. 5 Litt. (Ky.) 92; King v. Sharp, 6
Humph. (Tenn.) 55.

PAETIES TO THE LEASE. 3

no matter for how long a term of years, is good only for the
life of the lessor and terminates with his death. So,, if a per-
son has an estate for the life of another he may grant a lease
for a term of years which will be good during the life of the
cestui que vie but upon his death it is absolutely void even
though the lessor in the meantime has acquired the reversion.^
The executor or administrator of a life tenant cannot maintain
an action for rent accruing after the death of the life tenant.^
A lease executed by a tenant for life, who was then under age,
in which the reversioner is named, if not executed by him is
void on the death of the tenant for life. An execution by the
reversioner afterwards is not a confirmation of the lease so as
to bind the lessee in an action brought on his covenant con-
tained in it.* Before the statute 11 George II, c. 19 the execu-
tor of a tenant for life who made a lease for years and died
before the rent was payable, could not recover rent from the
tenant for years. That statute provided that the executors of
the tenant for life might recover a proportion of the rent down
to the death of their testator. The statute, however did not
destroy the right of the reversioner or the remainderman to
enter upon the tenant for years for the latter had no more right
than his lessor, and the estate of his lessor having terminated
by his death the tenant for years was simply a tenant at suffer-
ence. If the executor of the tenant for life held over the re-
mainderman might either eject him or regard him as his ten-
ant and recover for use and occupation. The remainderman
has the same rights and remedy against a tenant for years, as
against a life tenant holding over on the death of his lessor.'
§ 3. Leases by life tenants under a power. There is a
marked and important distinction between a power to lease
created by a will or a deed with a devise of the fee to another
and a power to lease which is not expressly created in this man-
ner but is merely the outcome of and an incident to the owner-
ship of an estate for a limited period with a remainder or revci--
sion in another. In the first case a lease for any term of years
not exceeding the limitations placed upon the power in the in-

2 Co. Litt. 476, 6 Co. 15a. Watts, 7 Term Rep. 832, Esp. 501,

s Steuber v. Huber, 107 App. Div. 4 R. R. 387.

599, 95 N. Y. Supp. 348. s Co. Litt. 50, 2 Black Com. 145;

■* Ludford v. Barber, 1 Term Rep. Fevans v. Briscoe, 4 H. & J. (iid.)

86, 1 R. R. 56; Doe d. Martin v. 139, 140.

4 LAW OF LANDLORD AND TENANT.

strument will be valid and will be binding upon the owner of
the reversion; while in the latter ease the lease created by the
owner of the limited estate will terminate with the expiration,
of the limited estate itself. Hence if an estate be granted to
one for life with a power to grant leases for twenty years, his
lease for twenty years will be valid and binding upon the re-
mainderman though his own interest in the life estate may ex-
pire the next day. But if the life tenant is not invested with
an express power to grant leases for years he can only grant
leases which will be good during his life. Though he grant a
lease expressly for a term it will not be binding upon the re-
versioner or remainderman after the death of the life tenant.
A power to grant leases which shall be valid after the expiration
of a life estate is of considerable value, both to the life tenant
and to the remainderman or reversioner, for unless the life ten-
ant possesses this power he cannot enjoy the use and profits of
his estate to the best advantage. If he cannot give long leases
it may happen that the premises will remain vacant, waste
may occur, and the buildings be permitted to remain out of
repair, owing to the fact that it is impossible to procure ten-
ants who will accept a lease whose existence is dependant
upon the uncertainty of the life of the life tenant. And on
the other hand if the life tenant is permitted to give leases
for a defijiite term of years which shall be binding on those
who follow him in the ownership he will, by the receipt of
a larger rent, be encouraged and enabled to keep the build-
ings in better repair, and to pay taxes and interest charges,
so that in the end his power will not only operate to his own
advantage but also to that of his successor. But while the
power to grant a permanent lease extended beyond the es.-
tate owned by the lessor is to be favored if possible it will
never arise by mere implication. It must be expressly con-
ferred upon the life tenant or other persons owning the es-
tate which is subordinate to the fee simple.

A power of a life tenant to make leases at his discretion
which shall bind the remainderman after his death, must be
strictly pursued. Equity will aid a defective execution of
such a power where the circumstances of the case, and the
interests of the lessee demand it. But while equity will aid
tlie defective execution of a power to grant leases, it will

PARTIES TO THE LEASE. D

not interpose where there has been no execution of such a
power for on general principles if the execution of the power
in the life tenant is discretionary, it will leave it to his elec-
tion freely to give or to refrain from giving a lease. If he
has not executed it, equity will not do for him what he did
not see fit to do for himself. The question of the execution
by a life tenant of a power to lease, frequently arises between
one who has entered under such a lease and the remainder-
man. If the lessee can show circumstances which ordinarily
would warrant the interference of equity, he will be protected
imder his lease from the life tenant, though it may not have
been executed in accordance with the express limitations of
the power. Thus if the life tenant has given an agreement
for a lease which was subsequently to be executed in proper
form which has not been done, and the lessee had entered
thereunder and had paid rent to the remainderman after the
death of the life tenant the lessee will be protected in his pos-
session of the premises upon the basis of an estoppel on the
remainderman.*

§ 4. The termination of terms created by a life tenant as a
landlord. At the common law upon the death of a life tenant
who has made a lease for a term, the lease for the term is at an
end irrespective of its length, unless the life tenant has power
to lease for a term. The term is not revived as to the remain-
derman merely by the acceptance of rent by him.^ The lessee
of a tenant for life upon the termination of the life estate of
his lessor becomes a tenant at sufferance, of the owner of the
fee. He may at once abandon possession as he is not bound
to remain as the tenant of the reversioner with whom he has
no relation or privity whatever. And if he promptly aban-
don the premises he will escape all liability for rent subse-
quently accruing whether to the personal representative of
the life tenant or to the reversioner.^ The remainderman or

6 Howard v. Carpenter, 11 Md. St. 432, 56 N. E. 199, 48 L. R. A.
259, 283. 735; Lowrey v. Reef, 1 Ind. App.

7 Doe V. Butcher, 1 Doug. 50; 244, 27 N. E. Rep. 626; Miller v.
Jenkins v. Church, Cowper, 482; IMainwaring, Cro. Car. 399; Jones
Mayhew's Case, I'Coke, 147; Lud- v. Cowper, Willes, 169.

ford V. Barber, 1 T. R. 86; Sykes s Hoagland v. Crum, 113 111.

V. Benton, 90 Ga. 402, 17 S. E. 365.
Rep. 1002; Noble v. Tyler, 61 Ohio

b LAW OF LANDLORD AND TENANT.

reversioner is not bound to give the lessee of the tenant for
life a notice to quit upon the death of the tenant for life.
The lessee of a tenant for life is presumed to know the limi-
tations upon his landlord's title and the duration of his estate.
If the subtenant shall remain in possession after the death of
the tenant for life with the consent or acquiescence of the
reversioner or remainderman, the latter may recover from
him the reasonable value of the use and occupation of the
premises for such period as he has been in possession.'' ■ But
he may be e-victed by the reversioner after the expiration of
the interest of the life tenant under whom he claims. He can-
not maintain an action on the imi:)lied covenant for quiet en-
joyment against the heirs of his landlord. ^° The tenant of
a life tenant has as against the remainderman or reversioner
no rights which can be enforced at law.^^ There is no privity
of estate or contract between the subtenant and the owner of
the fee in remainder. For this and other reasons the subten-
ant cannot as against the remainderman remove his buildings
or other fixtures on the termination of his lease by the death
of the life tenant without the consent of the remainderman.^^
But the subtenant may on the death of his immediate lessor
remove any crop which he may have sown during the term
This is the rule under the common law principle of emble-
ments. And he may enter after the death of the life tenant
for the purpose of removing the crop for a reasonable period
after the expiration of his term.^^ As to third persons who
are not parties to the lease, the subtenant has no title which
will enable him to secure damages for their acts in relation
to the land. He cannot enjoin a third person from commit-
ting waste nor can he recover damages for waste or for tres-
pass committed upon the property.^* -

» Guthman v. Vallery, 51 Neb. 12 Jones v. Shefflin, 45 W. Va.

824, 71 N. W. Rep. 734. 729, 31 S. E. Rep. 975.

10 Penfold V. Abbott, 32 L. J. Q. i3 Carman v. Hosier, 105 la. 367,
B. 67, 9 Jur. (N. S.) 517, 7 L. T. 75 N. W. Rep. 322; Guthman v. Val-
384, 11 W. R. 169; Adams v. Gib- lery, 51 Neb. 824, 71 N. W. Rep. 734.
ney, 4 M. & P. 491, 6 Bing. 656, 8 1* Johnson v. Grantham, 104 Ga.
L. J. (O. S.) C. P. 242, 31 R. R. 558, 30 S. E. Rep. 781. In West
514. Virginia a yearly term created by

11 Carman v. Mosler, 105 la. 307 a lease executed by a life ten-
75 N. W. Rep. 323. ant runs to the end of the current

PARTIES TO THE LEASE. /

Though the lease of a life tenant for a term is on his death
so far as the remainderman is concerned, absolntely void, it
is competent for the subtenant by holding over with the con-
sent of the remainderman to make a new lease. The relation-
ship of landlord and tenant may, after the death of a life
tenant, arise between his subtenant and the remainderman by
the acts of the parties. Thus a lease by the widow of the de-
ceased owner of real property, who had only a dower interest
when she made the lease may be ratified by the heirs of the
deceased on the death of the widow.^^ The acceptance of
rent by a remainderman and permitting the tenant to make
improvements, are not an affirmance of the lease which is
absolutely void at the death of the tenant for life.^®

So a reversioner by accepting the rent from a subtenant
after he comes into possession, does not thereby confirm a
covenant for a perpetual renewal so as to make such cove-
nant binding on him.^^ Where a lease is determined by the
expiration of the estate of the landlord who is a life tenant,
and the lessee continues to hold luider the remainderman, pay-
ing the same rent, the question whether a new lease has been
made, is a question of fact. If the tenant continues to hold
under the remainderman, and nothing passes between them
except the pajTnent and receipt of rent, the new landlord is
not bound by a stipulation in the old lease which is unknown
to him, and which is not in accordance with the custom of the
country.^^ The fact that the remainderman received rent and
sold the premises thereafter with a mention of the lease in
the deed, and an exception of the lease in the covenant against
encumbrances, and notice was taken of the lease in a subse-
quent mortgage, does not prevent the lease from expiring
with the interest of the tenant for life.^® The remainderman

year in whicli the life tenant Yate v. Church, Cowp. 482; Doe d.

dies unless it is renewed by the Jolliffe v. Sybourn, 2 Esp. 667.

remainderman accepting the sub- i" Higgins v. Rosse, 3 Bligh.

tenant as his tenant. Holden v. 113.

Boring, '52 W. Va. 37, 43 S. E. 86. is Oakley v. Monch, 4 H. & C.

15 Martens v. O'Connor, 101 Wis. 251, 35 L. J. Ex. 87; L. R. 1 Ex.
118, 76 N. W. Rep. 774. 159, 12 Jur. (N. S.) 253, 14 L. T.

16 James d. Aubrey v. Jenkins, 20, 14 W. R. 406.

Bull. N. P. 96; Doe d. Simpson v. is Doe d. Potter v. Archer, 1 Bos.

Bitcker, 1 Doug. 50; Jenkins d. & P. 531. And see Jordan v.

Waj-d, 1 H. Bl. 97, 2 R. R. 728.

8 LAW OF LANDLORD AND TENANT.

who, on the death of the life tenant assents, either expressly
or by necessary implication to the continued occupation of
the premises by a subtenant who has taken a lease from the
deceased life tenant creates a new tenancy which is either at
will or from year to year as the case may be. Before the re-
mainderman consents the subtenant is merely his tenant at
sufferance. After a new lease is created by the consent of
the remainderman he and the subtenant stand towards each
other as landlord and tenant. There are then privity of con-
tract and privity of estate between them and their relations
are regulated by the terms of the new lease which has been
made.^° In leasing premises for a long term it is always ad-
visable to protect the interests of the lessee where a life
tenant has no power to grant leases for a term to have both the
life tenant and the reversioner or remainderman unite in the
execution of the lease. Of course where the remainderman
or the reversioner unites with the life tenant in the execution
of a lease as lessors the term does not come to an end with
the death of the life tenant during the term. On the death
of the life tenant the term continues and the lease at once be-
comes the lease of the remainderman or reversioner.^^ The
interest which the subtenant has in the term rises out of the
successive estates of the lessors as each of them in turn be-
comes entitled to the ownership and possession of the prop-
erty. So too, a remainderman or reversioner may by his con-
duct and declarations made during the life of the life tenant
so estop himself that after the death of the life tenant he will
be taken and regarded as the lessor of the subtenant.-^

§ 5. The validity of leases by tenants for years. A lessee of
a term for years may make a lease as to a portion of his term
which will make him a lessor. Broadly speaking if he carves
out a term less in duration than his own term it is a lease, while
if he parts with all his term it is an assignment. This is not
always so, and in any case, whether a term created by a lessee

20 Bacon's Abr. "Leases." O. 1; 21 Lake Erie Gas Co. v. Petter-

Pennington v. Taniere, 12 Q. B. son, 184 Pa. St. 364, 39 Atl. Rep. 68.

998; Tucker v. Morse, 1 C. & Ad. 22 Simpson v. Butcher, 1 Doug.

365; Martin v. "Watts, 2 T. R. 83; 50.
Crune v. Prideaux, 10 East, 187;
Collins V. Weller, 7 T. R. 478.

PARTIES TO THE LEASE. 9

shall be a sublease or an assignment, depends upon the intention
of the parties to the instrument. The importance of determin-
ing whether an instrument is a sublease or an assignment arises
from the fact that, if it is a sublease, the tenant for years has
a reversion however small and may then pursue against his les-
see all the remedies at law or in equity tor non-payment of
rent and other breaches of condition which a landlord may have
against his tenant. And also as is elsewhere fully explained, it
is sometimes very important and in fact absolutely essential to
determine whether an instrument is an assignment or a sub-
lease where the tenant for years is expressly forbidden to assign
and sublet or either. If in the instrimient transferring the term
the termor reserves rent payable to himself, and a right to re-
enter for a breach of condition, the writing, though conveying
the whole interest of the termor, would be regarded in law as a
sublease, and not as an assignment. Tenants from year to year
and tenants for a fixed and certain period less than a year have
usually the same power to grant lease less than their term as
have tenants for years. Such leases are always subject to be
determined by the expiration of the longer term out of which
they are granted. From the peculiar nature of their tenancy
tenants at will and tenants at sufference are precluded from
granting leases which will be of any effect or value as against
their lessor. The tenant of a tenant at will is as to tlie original
lessor merely a tenant at sufference. whom the owner may oust
as a trespasser, without notice to quit, for any alienation by a
tenant at will of his term will tenninate the estate at the elec-
tion of his lessor.

§ 6. Guardianship in g-eneral. Several kinds or species of
guardians are known to, and recognized by, the law, whose
rights, powers and duties differ according to the class to which
they belong. They are first, guardians by nature, as the father
or mother of the infant ; second by nurture ; third, in socage ;
fourth, by will or deed; fifth, by appointment by a competent
tribunal, usually a probate court; sixth, volunteer and de facto,
as where a person enters upon an infant's land or interferes with
his property without claim of right. In such case equity will
consider him responsible pro tanto as a guardian. The father of
an infant is its guardian by nature until it attains majority, and
after his death, during the infant's minority its mother becomes

10 LAW OF LANDLORD AND TENANT.

its guardian by nature,-^ until the infant arrives at tlie legal age
when it may choose its own guardian. The right of the mother
to act as the guardian by nature may be defeated by the will
of the father of the infant. "Where both the parents of an in-
fant are deceased, the paternal grandfather is the guardian by
nature.-* Under the common law the natural guardian has
jurisdiction and control only of the person of the infant,-^
find he cannot make a valid lease of the lands of his ward
without an order of the court permitting and directing him
to do so.-" It has been intimated that perhaps a lease at
will made hy him would be good, in the absence of an express
disaffirmance thereof by tlie infant when he attained his major-
ity.^^ And where the mother, being only guardian by nature of
several infants, enters into a lease for a long term of years
which is joined in by her eldest child, he being then nineteen
years of age, and the lessee builds upon the land and pays the-
rent for many years to the infants after they had attained their
majority; and where upon all the circumstances the execution
of the lease had been very beneficial to the infants themselves,
a court of equity, on the application of the lessee, will not hesi-
tate to establish and coniirm the lease upon the ground that the
infants had so acted that they weie estopped to disaffirm it.^^

zsCapal's Heirs v. McMillan, 8 (N. Y.) 631, 30 Am. Dec. 77; Rex

Port. (Ala.) 197; Fields v. Law, v. Inhabitants, 5 Mod. 221; Rex

2 Root (Conn.) 320; Jarrett v. v. Inhabitants, 3 B. & Ad. 714.
State, 5 Gill & J. (Md.) 27. The 26 Indian Land & Trust Co.,

mother is the natural guardian of (Jnd. Terr. 1904), 79 S. W. Rep.

an illegitimate child and has a 134; May v. Calder, 2 Mass. 55;

right to its control and custody. Anderson v. Darby, 1 Nott & Mc-

Copeland v. State, 60 Ind. 394; Cord (S. C.) 369; Ross v. Cobb, 9

Baker v. Winfrey, 15 B. Mon. Yerger (Tenn.) 363. In Texas a

(Ky.) 504; Friesner v. Symonds, lease by a natural guardian is

46 N. J. Eq. 521, 20 Atl. Rep. 257. good but a lease of lands by the

24 In re Benton, 92 Iowa, 262; natural guardian of an infant ex

60 N. W. Rep. 614. pires upon the guardian's death

20 Nelson v. Goree's Adm'r, 34 when he is not the guardian of

Ala. 565; Capal's Heirs v. McMil- the infant's estate. MaxAA-ell v.

Ian, 8 Port. (Ala.) 197; Kendall v. Habon, 22 Tex. Civ. App. 565, 55

Miller, 9 Cal. 591; Kline v. Beebc, S. W. Rep. 1124; Hearne v. Lewis.

6 Conn. 494; Indian Land & Trust 78 Tex. 276. 14 S. W. Rep. 572;

Co. (Ind. Ter. 1904). 79 S. W. Porter v. Sweeney, 61 Tex. 213.
Rep. 134; Hyde v. Stone, 7 Wend. 27 pigot v. Garnish, Cro. Eliz

(N. Y.) 354. 22 Am. Dec. 532; C78, 734.
Fonda v. Van Home, 15 Wend. 28 Smith v. Low, 1 Atk. 489

PARTIES TO THE LEASE. 11

§ 7. The liability of an intruder as a guardian. A stranger,
who as a wrongdoer and without claim of right, intrudes upon
the lands of an infant or interferes with his property and re-
ceives the rents and profits thereof may be treated by the infant
as his guardian, by estoppel ; and he will be held accountable, in
equity, for the rent of the lands which he has received, or which
he might have received by the exercise of ordinary diligence in
renting them.^® The infant may, after he has attained his ma-
jority, maintain a bill in equity for the purpose of an account-
ing for the rents, after he has recovered the land in ejectment.
If the intruder continues in possession after the infant has be-
come of ag-e, equity will include this time in the accounting.^"

§ 8. The power of a guardian in socage. Guardianship in
socage is a consequence and outcome of the descent of land
held in socage tenure to an infant, and the guardianship de-
volves, by the common law, upon the next of kin to whom the
inheritance cannot descend.'^ This species of guardianship con-
fers more than the control and custody of the person. The guar-
dian in socage has absolute control of the lands until the heir
attains the age of fourteen, and is entitled to the profits for the
benefit of the heir. At the age of fourteen the infant may choose
his own guardian, but if he fails to do so, the authority of the
guardian in socage continues.^- A guardian by socage has ab-
solutely no power or control over the personal property of the
ward,^^ but he may lease the real property of the ward in his
own name, and this lease will bind the ward to the same extent
as though made in the name of the latter.^* In modern times

29 Davis V. Harkness, 6 111. 173, 33 Foley v. Mutual Life In. Co.,
41 Am. Dec. 184. 138 N. Y. 333, 34 N. E. Rep. 211;

30 Drury v. Connor, 1 Har. & G. 34 Am. St. 456, 20 L. R. A. 620
(Md.) 220. See, also, Goodhue v. (affirming 64 Hun, 63, 18 N. Y.
Barnwell, 1 Rice Ch. (S. C.) 198. Supp. 615).

312 Black. Comm. 88; Co. Litt. 3* Byrne v. Van Hoesen, 5

87b. Johns, (N. Y.) 66; Thacker v.

32 Byrne v. Van Hoesen, 5 Henderson, 63 Barb. (N. Y.) 271;

Johns. (N. Y.) 66; Jackson v. De Emerson v. Spicer, 55 Barb. (N.

Walts, 7 Johns. (N. Y.) 157; Syl- Y.) 528; 38 How. Prac. 114 (af-

vester V. Ralston, 31 Barb. (N. Y.) firmed in 46 N. Y. 594); Galla-

S86; Rex v. Oakley, 10 East, 494; gher v. David Stevenson Brewing

Rex V. Sherrington, 3 B. & Ad. Co., 13 Misc. Rep. 40, 34 N. Y.

714; Rex v. Manners, 3 Ad. & El. Supp. 94, 25 Civ. Proc. Rep. IOC:

597. Wade v. Baker, 1 Lord Raym. 130;

12 LAW OF LANDLORD AND TENANT.

at least as will be subsequently explained, the father has full
power to appoint a guardian by his will whose authority on the
death of the father will supersede that of the guardian in soc-
age. The father of an infant cannot, however, be his guardian
by socage as such guardian must be a person M'ho cannot in-
herit from the ward.^^ The authority of a guardian by socage
to lease, and this is also true of all species of guardians, continues
onlj' daring the minority of the ward. And, moreover, if the
ward of a guardian by socage on attaining the age of four-
teen years elect to enter upon his lands he may repudiate the
lease so far as it has still to run.^® The death of the ward ter-
minates the lease, and so, also, does tlie death or removal of the
guardian by socage. ^^

§ 9. The power of testamentary guardians. In England by
the statute 12 Car. 2, c 24, all tenures of land with a few ex-
ceptions were converted into tenures in socage, and, by the
same statute, guardianship in chivalry with all its inconveniences
and opportunities for injustice was abolished. It was also pro-
vided that the father of any minor, being under the age of
twenty-one years and not married at the time of his death,
might by a deed or will executed in the presence of at least two
witnesses, appoint a guardian of such minor who would have
the custody and tuition of the minor until he or she should have
attained the age of twenty-one. By the same statute the guard-
ian thus appointed was authorized to assume the complete cus-
tody and control of all the ward's property, both real and per-
sonal; and to manage the same for the use and benefit of the
ward until he should have attained his majority, when the
guardian must account to him for the property as well as for
the rents and proceeds of the same. The testamentary guardian
thus appointed had in law the same right to begin actions and
take other proceedings for the infant as the guardian in soc-
age might do. This statute also enabled the father, who could

Rex V. Oakley, 10 East, 491; Hill Bedell v. Constable, Vaughn, 182;

V. Saunders, 4 B. & C. 536. Wade v. Baker. 1 Lord Raym.

86 Graham v. Houghtaling, 30 N. 130; Rex v. Sutton, 3 Ad. & El.

J. L. 552. Contra by statute in 597.

New York, Holmes v. Seeley, 17 't Balder v. Blackborn, Browl.

Wend. (N. Y.) 71. 79.

30 Osborn. v. Garden, Plowd. 293;

PAKTIES TO THE LEASE. 13

not be himself the guardian in socage to supersede such guard-
ian by appointing a guardian for his child by an instrument
properly executed. In England it has always been held that a
guardian appointed by deed or will possesses the same power
and authority as a guardian in socage, and that he may lease
the lands of his ward, unless expressly restrained from doing
so by the instrument by which he was appointed.^*

§ 10. The power to lease of a gnardian appointed by a court.
A guardian appointed by a court has usually under most of the
modern statutes, the power to lease, though it may not be ex-
pressly conferred upon him by the statute authorizing the court
to appoint him.^^ The possession of this power to lease is in
most cases assumed to exist and indeed if not expressly conferred
must be implied from the duty which in all the states is incum-
bent upon the guardian to secure the greatest possible profit or
income from the real property of his w^ard and from his liability
for rent in case he fails to use due diligence in doing so. The
guardian, in leasing, may reserve the rents either to the ward
or to himself and in either case the pa\Tuent of the rent to the
guardian and his receipt wdll release the lessee and be binding
on the ward.*" So also, a guardian has the power to enter into
an agreement with another person permitting the latter to
raise a crop on the land of the ward, and to keep two thirds of
it, rendering to the infant the balance as rent.*^ In the ab-
sence of a permissory statute the guardian has no power to sell
land of the ward without recourse to a court of competent juris-
diction and obtaining its permission. Hence a guardian cannot
lease land for the purpose of developing it by drilling oil wells
as the oil, being a part of the land itself is also a part of the
corpus of the estate of the ward over which the guardian has
no control.*^

88 Bedell v. Constable, Vaughn, (Md.) 323; Richardson v. Richard-

179; Parry v. Hodgson, 2 Wils. son, 49 Mo. 29; Tracker v. Hender-

129; Shaw v. Shaw, Vern. & son, 63 Barb. (N. Y.) 271.

Scriv. 606. The rule would doubt- <« Ross v. Gill, 1 Wash. (Va.)

less be the same in this country. 7.

Thacker v. Henderson, 63 Barb. 4i Weldon v. Lytle, 53 Mich. 1,

(N. Y.) 271. 18 N. W. Rep. 533.

39 Huff V. Walker, 1 Ind. 193; 42 stoughton's Appeal, 88 Pa.

Magruder v. Peter, 4 Gill & J. St. 198.

14 LAW OF LANDLORD .\JS^D TENANT.

§ 11. When the permission of the court to the making of the
lease is required. In all cases it is advisable, and in most cases
absolutely necessary, to obtain the approval of a court of com-
petent jurisdiction to the action of the guardian before he can
execute a lease of the laud of his ward.*^ If a statute provides
that the guardian may act under the direction of the court,'** or
if it clearly requires that he shall apply to the court to sanction
his actions in the management of the estate of the ward,'*^ a
lease executed without the sanction and approval of the court
may be rescinded by the lessee or by the ward.*® So, too, in
England, a guardian appointed by the chancellor being, as it
were, in the position of a receiver, cannot execute a valid lease
without the prior permission of the court of chancery.*^ A
court of equity on an application by a guardian for leave to
execute a lease of land belonging to infants, will order the exe-
cution if the best interests of the infant owners seem to re-
quire it. Thus, permission was given to lease property for a
term of ninety-nine years, where the lessee was to improve the
property at his own expense, with a provision for a readjust-
ment of the rent every twenty years, where it appeared that an
increase in the rent would result only if betterments were made
upon the land. These improvements would of course have to be
made by the owners, if the lease were not executed, and the cir-
cumstances that some of the infant owners were females, and that
this arrangement would give them a fixed income whereas before
this the land had been unproductive call loudly to a court of
equity to give the relief demanded.*^

. § 12. Limitations upon the power of a guardian to lease.
The power of the guardian to lease will not enable him to make
a valid lease of the land of his ward for a longer period than

43 Field V. Harrick, 5 111. App. was construed, provided that con-
54 (affirmed in 101 111. 110). servators "shall have the charge

44 Bates V. Dunham, 58 Iowa, of" and "shall manage" the es-
308 12 N. W. Rep. 309. tates of their wards and the court

« Huff V. Walker, 1 Ind. 193. held that they might lease the

4c Haskell v. Sutton, 53 W. Va. real property of their wards with-

206, 216, 44 S. E. Rep. 553; Field out the approval of the court.

V. Ilerrick, 5 111. App. 54 (affirmed t^ Rex v. Sutton, 3 Ad. & El. 597.

in 101 111. 110). Contra, in Palmer '^ Ricardi v. Gaboury, 115 Teun.

V. Chesehoro, 55 Conn. 114, 10 Atl. 4S4, 89 S. W. Rep. 98.

Rep. 508, where the statute, which

P.SJBTIES TO THE LE.VSE.

15

the majority of the ward. But a lease by a guardian for a term
extending beyond the term of his guardianship is not void on
the ward becoming of age, but is voidable only. Such lease may
therefore be confirmed by the ward by parol, or by any act
equivalent to an affirmance, such as the receipt of rent by the
ward after he is of age." So, a lease by a guardian of an infant
under the age of fourteen, for a term of years extending beyond
the arrival of the infant at that age may be avoided by another
^ardian chosen by the infant when he attains that age.^*»

§ 13. The duty of the gn^ardian to lease. A guardian of an
infant owning real property has the duty incumbent upon him
to lease the same for the best rent that can be procured and if
he shall fail to do so he is liable personally for the rent which he
might have obtained.^^ In some states it is provided by statute
that the guardian cannot himself occupy the lands of his ward,
but that he must lease them under the direction of the court. ''^
But the rule is otherwise at common law.^^ A guardian who is
a cotenant of land with his ward is liable to him for rent,

*o Field V. Heriick, 108 111. 110
114; Van Doren v. Everitt, 5 N. J.
Law, 528; Ross v. Gill, 4 Call.
(Va.) 250; Bacon v. Taylor. Kir-
by (Conn.) 398; Jackson v.
O'Rorke (Neb. 1904), 98 N. W.
Rep. 1068; Field v. Schieffelin, 7
Johns. Ch. (N. Y.) 150; Putnam v.
Ritchie, 6 Paige Ch. (N. Y.) 390;
Smith V. Low, 1 Atk. 489; Overbach
V. Heermance. Hopk. Ch. (N. Y.)
337; Kitchen v. Lee, 11 Paige Ch.
(N. Y.) 107.

50 Snook V. Sutton, 10 N. J.
Law, 133.

51 Clark V. Burnside, 15 111. 62;
Griffin v. Collins (Ga. 1908), 53 S.
E. Rep. 1004; Mudd's Ex'rs v.
Reed, 11 Ky. Law Rep. 998;
Drury v. Connor, 1 Har. & G.
(Md.) 220; Shurtleff v. Rile, 140
Mass. 213. 4 N. E. Rep. 407; Smith
V. Gummere, 39 N. J. Eq. 17; In
re Kopp, 2 N. Y. Supn. 495, 15 Civ.
Pro. Rep. 282; In re Laney's Es-

tate, 14 Pa. Co. St. Rep. 4, 2 Pa.
Dist. Rep. 800; Hughes' Appeal,
53 Pa. St. 500; Harvin v. Riggs,
1 Rich. Eq. Cases (S. C.) 287; Har-
ley V. Deewitt, 2 Hill Eq. (S. C.)
367; Peale's Adm'r v. Thurman,
77 Va. 753.

52 Muller V. Brumer, 69 111. 108.

53 In Louisana a father and the
natural tutor or guardian of his
minor child who has for several
years cultivated land which was
the common property of himself
and the minor child, will be
charged with the yearly rent of a
one undivided half which was
owned by the child, together with
legal interest thereon. The infant
cannot be charged with the losses
of the cultivation as the relation-
ship between the father and child
in the land is that of landlord and
tenant and it cannot be said that
they cultivated it jointly. Succes-
sion of Trosclair, 34 La. Ann. 326.

16 LAW OF LANDLORD AND TENANT.

thoiigli he may not have used more than his own portion of
the land, as it is his duty as guardian to see to it that the land
of his ward is made productive.^* He is only the agent or
bailiff of the ward, and if he occupy the land of the ward, he
becomes thereby the tenant of his ward and he is responsible for
the reasonable value of the use and occupation of the land, less
the reasonable value of the improvements, if any, made by him.^^
If the guardian does not himself occupy the ward's land he is
not liable for an error in judgment in leasing it for a lower rent
than could have been obtained by further inquiry where he has
acted in manifest good faith and has obtained the approval of
the court/'^

§ 14. The guardian's duty to collect rents. The guardian
may sue in his own, name and usually without joining the ward
as a party, for rent which accrues under a lease made by him.
He must employ due diligence in collecting the rents promptly
as they accrue. If it appears that he did not use proper efforts
to collect the rent, the ward can hold him liable for the reason-
able rental value of the land.^^ AVhere a guardian allows the
administrator of the estate in which his Avard has an interest, to
take charge of the real property of his ward, he is liable for the
rents up to the time the land was sold to pay decedent's debts.^®

§ 15. Formal requisites of the lease. The lease of a guardian
is valid and will bind the ward though it be made in the name of
the guardian individually and delivered as his individual deed.^*
It is always advisable that a lease of a guardian shall be in
writing but this is by no means indispensable where the statute
of frauds does not apply; though, if by statute, a guardian's
lease must be in writing, an oral lease is absolutely void."" A

54 Harvey v. Dewitt, 2 Hill Eq. r,8 Coggins v. Fly the. 113 N. C.

(S. Car.) 367. 102, 18 S. E. Rep. 96, and to the

05 Taylor v Calvert, 138 Ind. 67, same effect Appeal of Wills, 22

37 N. E. Rep. 531; In re Kopp, Pa. St. 325.

2 N. Y. Supp. 495, 15 Civ. Pro. Rep. so whyler v. Van Tiger (Cal.

282; see, also, Royston v. Royston, 1887), 14 Pac. Rep. 846; Field v.

29 Ga. 82, as to the guardian's lia- Schiefflin, 7 John. Ch. (N. Y.)

bility for the improved rent. 150, 11 Am. Dec. 441.

scMcElheny v. Musick, 63 111. eo Sawyers v. Zachery, 1 Head

328. (Tenn.) 21. A guardian's stipula-

67 Mudd's Ex'rs v. Reed, 11 Ky. tion in his lease to pay for im-

Law Rep. 998. provenients on the land does not

PAETIES TO THE LEASE. 17

person who in giving a 1( ase, describes himself as guardian of
another will be held personally liable thereon unless something
. appears in the contract clearly showing a contrary intent even
though the execution of the lease may have been approved by
the court.*^^

§ 16. Covenants by ^ardians. A guardian cannot covenant
so as to bind the property of his ward. Hence if, in executing a
lease, a guardian, or other person standing in the position of a
trustee, enter into general covenants such as a covenant for
quiet enjoyment, he fails to bind the beneficiary or the estate
which he represents. The guardian is, however, bound person-
ally by such covenants and a.s to him they stand upon the same
footing as though the lease had been made by the guardian or
other q^iasi trustee in his individual right.®^ A covenant in a
lease made by a guardian to renew it at the end of the term, is
not binding where by statute the consent of the court is required
to a lease executed by a guardian.®^

§ 17. An infant's liability for rent. The general rule of
law is that an infant can bind himself or his estate for neces-
saries. This is so, however, only where he is living apart from
his father, and where he is laboring, receiving the profits of his
own labor and appropriating them to his own use. In all such
cases as the parent whose duty it is to support the infant, is not
receiving any of tlie fruits of the infant's industry, the latter
will be liable either on his express promise, or the law will imply
a promise on the part of the infant to pay for necessaries which
have been furnished him.^* In applying the rule the principal
difficult}' is to determine what, in the particular case, are neces-
saries. Though we are without any direct adjudication upon
this question in its relation to the occupancy of real property
by an infant, inasmuch as shelter from the extremes of tempera-
ture, and protection from the vicissitudes of the weather, are

bind the ward. Barrett v. Cocks, Wolfe, 50 Iowa, 286; Sumner v.

12 Heisk. (Tenn.) 566. Williams, 8 Mass. 163; Whitney

61 Nichols V. Sargent, 125 111. v. Dewey, 15 Pick. (Mass.) 428.

209. 17 N. E. Rep. 475, 8 Am. St. 63 Globe Soap Co. v. Louisville

Rep. 378. & N. Ry., 27 Ohio C. C. 759.

«2 Craddock v. Stewart, 6 Ala. e* Green v. Wilding, 59 Iowa,

77; Chestnut v. Tyson 105 Ala. 679, 13 N. W. Rep. 764, 44 Am.

149, 16 So. Rep. 723; Bloom v. Rep. 696.
2

18 LAW OF LANDLORD ^VND TENANT.

prime necessities of hiunan existence without which human life
is neither safe nor tolerable, it would seem that the infant would
be liable for the rent of premises which he had occupied as a
dwelling, whether upon an express contract to pay rent for them
or for their reasonable value. The rule is that what are neces-
saries for which an infant would be liable is a question for the
jury depending on all the circumstances of the case.®^ The prin-
cipal facts by which they ought to be guided in their inquiry are
whether the articles were suitable to the infant's estate and con-
dition and whether he was without the means of supply.®'
Thus under this rule the jury may consider, in determining
the liability of the infant for rent, the size, character and loca-
tion of the premises in question in comparison with his parent's
abode, and his own financial condition and usual manner of
living, the size of his family if he have a family, and whether
or not his parent or guardian is willing and of means sufficient
to provide a dwelling place for him. So, too, inasmuch as the
husband, though an infant, is liable for necessaries furnished
his wife, he would doubtless be liable for rent or for the use
and occupation of premises occupied by her as a dwelling^
under such circumstances as would render him liable if he were
an adult. ''^ But on the other hand, inasmuch as articles pur-
chased by an infant to be used in or to enable him to carry on
business are not in law necessaries, he would not be liable for
the rent or for the use and occupation of premises occupied by
him solely for business purposes.®*

85 Stanton v. Willson, 3 Day essaries belongs to the court or

(Conn.) 37, 3 Am. Dec. 255; to the jury. Many cases hold that

Swift V. Bennett, 10 Gush. (Mass.) whether articles of a certain class

43G. or kind are such as infants would

06 Davis V. Caldwell, 12 Cush. be liable for, or whether certain

(Mass.) 512. kinds of expenditures are neces-

67 As to the liability of an in- saries, must be determined by the
fant for his wife's necessaries see court; but whether a particular
Cantine v. Phillips' Administra- class is suitable to the condition
tor, 5 Har. (Del.) 428; Price v. and estate of the infant is for the
Sanders, 60 Ind. 310; Cole v. See- jury. McKanna v. Merry, 61 111.
ley, 25 Vt. 220. 177; Garr v. Haskett, 86 Ind. 373;

68 The authorities are not alto- Merriam v. Cunningham, 11 Cush.
gether harmonious upon the ques- (Mass.) 40; Henderson v. Fox,
tion whether the jurisdiction to 5 Ind. 489.

determine what articles are nee-

PARTIES TO THE LEASE. 19

§ 18. The ratification of a lease made by an infant. Accord-
ing to the general rules relating to the making of contracts by
infants, a lease executed by an infant is not void but is voidable
at the election of the infant on his becoming of age. The lessee
of the infant cannot set up the infancy of his lessor to invalidate
the lease or to exempt him from the payment of rent.*^^ The in-
fant has a reasonable time after his attaining his majority, in
Avhich he may elect whether to ratify or to repudiate his lease.'"
The ratification cannot be implied. A direct promise to pay
rent or an express agreement to ratify the lease is essential.
There must be an express confirmation or a new promise, volun-
tarily and deliberately made, with a knowledge that there is no
existing legal liability on the lease.^^ Subject to these limita-
tions and qualifications, an infant who, on reaching his majority,
retains land leased to him during his infancy ratifies the lease."-
It is not necessary in order to effect a disaffinnance by an infant
lessee that he shall place the lessor in statu quo. The infant is
not bound to pay or to tender back the benefit or advantage
which he has received under the lease.^^ This general rule has
not been repealed by a statute which provides that the marriage
of any female infant to an adult shall be a discharge of her
guardian and that the guardian shall thereupon render his ac-
count to the ward. The statute does not release the married
woman from the disability of infancy and she may still disaffirm
her lease,'* when she subsequently attains her majority.

§ 19. The validity of a lease at will made by a feme sole. A
feme sole may at the common law execute a valid lease of her
lands. The marriage of a feme sole does not of itself determine
a lease at will made by her as lessor before her marriage, though
her husband has the right thereafter to put an end to it. The
reason of this is the consideration which the common law has
for the rights of the husband for it might be that the lease at

60 Field V Herrick, 108 111. 110, 72 Baxter v. Bush, 29 Vt. 465;

114; Porch v. Fries, 18 N. J. Eq. Robson v. Flight, 4 De G. J. & S.

204,' 209. €08. 34 L. J. Ch. 226, 11 Jur. N. S.

70 Green v. Wilding, 59 Iowa, 147, 11 L. T. 725. 13 W. R. 393.
679, 13 N. W. Rep. 761, 44 Am. t3 Shipley v. Smith, 162 Ind. 526,
Rep. 696. 72 N. E. Rep. 803, 804.

71 Turner v. Gaither, 83 N. C '* Shipley v. Smith. 162 Ind. 526,
357, 35 Am. Rep. 574. 72 N. E. Rep. 803, 804.

20 LAW OF LANDLORD AND TEiNANT.

will would be for the benefit of the husband when he assumed
the ownership of the chattels of the wife. Hence the lease at
will of the woman did not determine except by some express
declaration or act on the part of the husband evincing his in-
tention that it should come to an end,'^ So also, where a feme
sole as lessee takes a lease at will, her subsequent marriage is
not a determination of the will for though, by the marriage, she
at the common law came under the will of her husband the law
required some express act on his part before the lease at will
was determined."^

§ 20. The effect of her marriage upon a lease made by a
feme sole. By the common law as we have seen, the husband
upon the marriage became entitled absolutely to all the personal
property of the wife in possession, as well as to the rents and
profits of the real estate owned by her. If she were possessed
as lessee of a term of years it became his property during her
life. He could sell, forfeit, surrender or otherwise dispose of
the term during coverture without her consent,^^ and, if he sur-
vived the wife the lease became to all intents and purposes his
own by marital right,'^* without the necessity of his taking out
administration upon his wife's estate.'^ During the life of the
wife, the interest of the husband in a lease for years in which
she was lessee was liable under an execution against him.^° If,
however, the husband made no disposition of the lease during
his life, on his death it went absolutely to his wife if she sur-
vived him ; *^ nor could he dispose of the lease by his will because
the jus disponendi exists and can operate only during the life
of the husband.*^ A woman being possessed as lessee of a term

75 Henstead's Case, 5 Coke, 10; ''^ Doe d. Roberts v. Polgrean, 1

Forse & Hembling's Case, 4 Coke, H. Black. 535; In re Bellamy, El-

64a; Co. Lltt. 55b. tici" v. Pearson, 53 L. J. Ch. 174,

7« Blunden v. Baugh. Cro. Car. 25 Ch. D. 620, 49 L. T. 708, 32 W.

304; Henstead's Case, 5 Coke, 10; ^- 358.

Co Litt 55. ^° Bacon, Abr. "Baron & Fem-

" Meriwether v. Booker, 5 Litt. "le" C; Co. Litt. 46, 351.
(Ky.) 256. SI Co. Litt. 351; Druce v. Benni-
es 2 Black. Comm. 432, 433; son, 6 Ves. 394; Moody v. Math-
Yonge V. Radford, Hob. 3; Ells- ews, 7 Ves. 183; Wildman v. Wild-
worth V. Hines, 5 Wis. 613; Dan- man, 9 Ves. Jr. 177, 7 R. R. 153.
iels V. Richardson, 22 Pick (Mass.) '^2 Bracebridge v. Cook, Plowd.
565_ 418; Co. Litt. 300a, b; 351b; Cro.

Car. 344.

PARTIES TO THE LEASE. 21

for years on marrying- an alien the marriage is not a gift in law
of her interest in the term.*' If a woman who is a lessee for
years marries, the act of the husband thereafter in taking a
new lease for both their lives is in law a surrender of the lease
and binding on the wife."*

§ 21. The invalidity of a lease made by feme covert at the
common law. A lease executed by a feme covert of her own
lauds during coverture is by the common law, absolutely void,
from the execution, and cannot be enforced.^'' In equity how-
ever the rule is different for in that jurisdiction a married wo-
man upon whom a power to lease lands has been expressly con-
fered by will or deed may execute such power without the con-
currence of the husband provided, however, that from the instru-
ment conferring the power to lease it is clear that the donor of
the power intended to exclude the disability of coverture **^ But
at the common law the husband is entitled to the receipt and
use of the rents and profits of the wife's lands and she cannot
by any action on her part which will be binding upon him, di-
vest him of them.^^ And it has also been held that in equity
the husband acquirea at once upon his entering into an en-
gagement to marry an inchoate right to the rents. A con-
tract by the woman with whom he has contracted to marrj- exe-
cuted between the engagement and the marriage by which, with-
out his consent and knowledge she parts with her real property
is in equity a fraud upon his rights. The chancellor will set
such a contract aside although it would be binding at common
law.^* For it is well settled in equity that the concealment from
the husband of the execution of a deed conveying her property

83 Theobalds v. Duffoy, 9 Mod. Lord St. John v. Lady St. John,

102, 104, and the wife may sue and 11 Ves. Jr. 526, 531; 1 Black,

be sued thereon as a feme sole not- Comm. 444.

withstanding her marriage to the so Hearle v. Greenbank, 3 Atk.

alien. 695.

S4 2 Roll. Abr. 495. «' Den v. Quimby, 3 N. J. Law.

85 Snyder v. Webb, 3 Cal. 83; 985; Baynton v. Finnall, 12 :\Ii?s.

Keller V. Klopfer, 3 Colo. 132; Ela 193; Clarke's Appeal, V9 Pa. St.

V. Card, 2 N. H. 175; Murray v. 376.

Emmons, 19 N. H. 483; De Wolf v. ss Logan v. Simmons, 3 Ired. Eq,

IMartin, 12 R. I. 533; see, also, (N. C.) 487, 494; McAfee v. Fer-

IManby v. Scott, 1 Mod. 124, 127; guson. 9 B. Mon. Ky. 475; Crane

Jennings v. Bragg, Cro. Eliz. 447; v. Morris, 6 Peters (U S.) 598.

22 LAW OF LANDLORD AND TENANT.

prior to her marriage by which his rights will be defeated is
presumptive fraud, and will be sufScient to convince any equity
on his application.^^ The marriage of a single woman who is a
lessee under a lease executed prior to her marriage renders her
husband liable to all the covenants of her lease.^^ He is thereby
responsible for all the rent in arrears at the date of the mar-
riage and for all the rent which may subsequently become due
during the coverture. He will be liable for the rent even after
the death of the wife.°^ And during the coverture the husband
and wife may be sued jointly upon any of the covenants of the
lease.®^

§ 22. The husband's power at common law to lease lands
of the wife. The common law from the date of the marriage
regarded husband and wife as but one person, and therefore
recognizes but one will between them which is placed in the hus-
band as the better able to provide for and to govern the family.
A distinction however is made by the common law as to the
power and control which the husband shall have over the wife's
estate between real and personal property, for he has ab-
solute control of the personal property so that no act of hers
has any force to affect his disposition or control of it.^^ At the
common law the husband acquires by the marriage the absolute
right to receive the rents and profits of lands owned by the wife.
This right continues during the coverture as to all lands owned
by the wife which are not settled to her separate use by an in-
strument Avhich will be recognized and enforced in a court of
equity.^* Hence from this rule it follows that, at the common
law, the husband may, during the coverture, execute leases of

89 Ball V. Montgomery, 2 Ves. land v. Myall, 14 Bush. (Ky.) 474;

Jr. 194; McAfee v. Ferguson, 9 B. Darnall v. Hill, 12 Gill & J. (Md.)

Mon. Ky. 475, 478. lo9; Clapp v. Stoughton, 10 Pick.

00 Anon. 6 Mod. 239. (Mass.) 463, 470; Baynton v. Fin

81 Roll's Abr. "Baron and Feme" nail, 12 Miss. 193; Burleigh v.

(G) pi. 1; Anon. G Mod. 239. Coffin, 22 N. H. 118, 53 Am. Dec.

i'2 Anon. 6 Mod. 239. 236; Lucas v. Rickerich, 1 Lea.

03 10 Co. 42; 2 Inst. 510; Ba- (Tenn.) 726, 728; Brasfield v.

con's Al)r. "Baron and Feme" C. Brasfield, 12 Pickle (Tenn.) 580,

i'4 Weens V. Bryan, 21 Ala. 302; 583, 36 S. W. Rep. 384; Shaw v.

307; Bishop v. Blair, 36 Ala. 302; Partridge, 17 Vt. 626; Moore's Ex.

Chancey V. Strong, 2 Root (Conn.) v. Ferguson, 2 Munf. (Va.) 421;

369; Hayt v. Parks, 39 Conn. 357; DoKl's Trustee v. Geiger's Adm'r,

Davis V. Watts, 90 In-l. 372; Moio- 2 Gratt. (Va.) 98.

PARTIES TO THE LEASE. 23

the lands of his wife, not settled upon her as her separate prop-
erty and may enforce all his rights as lessor under such leases
in an action brought in his name alone without joining that of
his wife.''^ He may, however, by an appropriate instrument in
writing relinquish to the wife the rents and profits to which he
is entitled,"^ in which case they are absolutely free from his con-
trol and the wife may then collect the rents from the lessee and
give receipts for the same.^'^ This he may also do by his course
of action as when, without remonstrance on his part, he permits
his wife to collect the rents of her land and apply them to her
own use.®® The rents accruing during the life of the wife be-
long to the husband and if a tenant not having notice of the
marriage pay rent to the wife during coverture, the husband may
collect it again. On his death they do not belong to the wife
but are assets in the hancU of the personal representative of
the husband and may be collected by him.®* On the other hand
the husband's personal representative cannot charge the wife
for services rendered by the husband in caring for the land of
the wife during the coverture or for money expended by the
husband for improvements made upon them during that period.^
It is perhaps needless to say that the rules of the common law
just stated have been largely and perhaps universally modified
and abrogated by modern statutory legislation in the United
States. But a statute forbidding the sale of the wife's property
to pay the husband's debts and forbidding the husband to sell
the wife's lands wdthout her consent does not deprive the hus-
band of his right to the rents and profits of her land.^ The rule
at common law just stated is applicable to a dower interest held
bj' the wife in the land owned by her former husband.^ Upon
the death of the husband the wife at common law regains the
rights which she had as a feme sole over all her lands remaining

95 Shaw V. Partridge. 17 Vt. on Shaw v. Partridge, 17 Vt. 626,
626, 631; Clapp v. Stoughton, 10 631.

Pick. Mass. 470. i Burleigh v. Coffin, 22 N H. 118,

96 See Cheney v. Pierce, 38 Vt. 58 Am. Dec. 236.

515, 524. 2 Brasfleld v. Brasfield, 12 Pickle

97Hayt V. Parks, 39 Conn. 357, (Tenn.) 580, 583, 36 S. W. Rep.

3C1. 384.

98 Leacester v. Biggs, 1 Taunt. ^ Shaw v. Partiidge, 17 Vt. 62C,

367; Cheney v. Pierce, 38 Vt. 515, 631.

524.

24 LAW OF LANDLORD AND TENANT.

unsold at his death,* and the same result follows where the wife
obtains a divorce a vinculo from the husband.^

§ 23. The right of a maiTied woman to lease under the mod-
ern statutes. The rules of the common law denying a married
woman the powder to lease her lands during coverture have
been greatly modified and in most cases entirely abrogated in
the United States. Under modern statutes she has in general
the same power to take, enjoy and dispose of her property, real
or personal, with its rents, issues and profits as though she were
a single woman. Hence she may lease her real property and as-
sign or sublet any terms for years, which she may own substan-
tially to the same extent as though she were unmarried." In many
of the states under the local statutory regulations which must
in each case be consulted the consent of the husband or his
joinder in the lease is still required.'^ In other jurisdictions
she may lease without the concurrence of her husband.*
So too. under some statutes she may lease her lands to
her husband.^ A married woman may without the consent or
participation of her husband make a lease of her land for a
period not to exceed three years, such lease not being a convey-
ance of or incumbrance upon her land within the meaning of a
statute which denies her the power to convey or incumber except
by deed in which her husband shall join.'''

§ 24. The effect of the death of the husband or wife upon a
lease made by the wife. At the common law the power of the
husband to execute a lease of the lands of the wife without her
consent and which shall be bindinir on her during the coverture
is undoubted. The question arises, Has the husband the power

4 Daniels v. Richardson. 22 sota Gen. Stat. 1858, C. 61, § 108;

Pick. (Mass.) 565. Maryland Gen. Laws, C. 45, §§ 1-

G Doe V. Brown, 5 Blackf. (Ind.) 3; Rhode Island Gen. Stat. 1857,

309. C. 136, §§ 4-8; Vermont R. S. C.

sKnapp V. Smith, 27 N. Y. 277; 65, § 2, C. 71, § 1.
Draper v. Stouvenal, 35 N. Y. 512, s Prevost v. Lawrence, 51 N. Y.

7 Reese v. Cochran, 10 Tnd. 195; 219.
Den V. Lawahee, 4 Zab. N. J. 613; o Albin v. Lord, 39 N. H. 196;

Miller v. Hlne, 13 Ohio, 565; San- state v. Hayes, 59 N. H. 450;

ford v. Johnson, 24 Minn. 172; Bank of America v. Banks, 101

Shinn v. Holmes, 25 Pa. St. 142; u. S. 240.

Thorndell v. Morrison, 25 Pa. St. lo Pearcy v. Henley, 82 Ind. 129;

326; Peck v. Ward, 18 Pa. St. 506. Shipley v. Smith. 162 Ind. 526,

The following statutes amonj; 70 X. E. Rep. 803, 804.
others may be consulted: Minne-

PARTIES TO THE LEASE. 25

to lease the wife's land for a terra which will extend boyond his
own life? In other words would a lease made by the husband
of the lands of the wife terminate with his death? It is settled
that upon the death of the husband before the wife a lease made
by him does not become ipso facto void but the M'ife has the
right to reject or accept it. She may repudiate it by a re-entry
on the land or she may affirm it by accepting the rent.^^ For
if she accepts rent after the death of her husband she will be re-
garded as having affirmed the lease. It was also held in an early
case that where rent was reserved under the lease of the wife's
land made by the husband: and, after the entn- of the less;^e.
the husband died before the rent became due, his widow by mar-
rjang again became estopped from rejecting the lease where her
second husband received the rent. For by her re-marriage the
widow was presumed at the common law to have transferred to
her second husband aU the power which she possessed as a widow
to disaffirm or to accept the lease and for this reason his ratifi-
cation of the lease was binding on her.^^ At the common law
a lease by the husband and wife of land which she did not own
as her separate property was voidable on the death of the wife
by her heirs who may enter upon the land and terminate the
lease. It is valid, however, until the actual entrj^ of the heirs.
But, by a statute ^* the interest in the lease of the lessee was
protected by continuing him in possession, preventing the heirs
of the wife from taking possession until the end of the term
while it was the same time held that they might collect the rent."
§ 25. The control of the husband over leases held by the
wife as executrix. At the common law the husband had con-
siderable power over and control of personal property held by

11 Greenwood v. Tyber, Cro. Jac. Saund. 180 note; 1 Roll. Abr. 349
5G3; Doe v Weller, 7 T. R. 478; (Y) pi. 2.

Jordan v. Wikes, Cro, Jac, 332, i3 Hill v. Saunders, 2 Bing. 112,

Smallman v. Agbarow, Cro. Ja^. 9 Moore 288, 1 Car. & P. 80; see,

417; Brown v. Lindsay, 2 Hill (S. also, 7 D. & R. 17; 4 B. & C. 529,

C.) 542; Winstell v. Hehl, 6 Bush. 28 R. R. 375; Bac. Ab.". 302; Co,

(Ky.) 58. See, also, Jackson v. Litt. 45b,
Mordant, Cro. Eliz. 112. i* Dyer, 159a, Rolle's Abr. 321;

12 Greenwood v. Tyber, Cro. Jac. 1 Bac. Abr. tit. "Baron and Feme,"
5C3; Worthington v. Young, 6 6, 498.

Ohio, 313; Trout v. McDonald, 83 "32 Henry VIII C. 28,

Pa. St. 141; Wotton v. Hele, 2

26 LAW OF LANDLORD AXD TENANT.

the wife as executrix.^® lie did not of course take the absolute
right to or become the absolute owner in law of any property
which she lield when he married her or which she acquired dur-
ing the coverture in a representative eapacit}^ The common
law did not give him the absolute property in chattels such as
leases Avhich she held in autre droit?' The husband might
however at the common law grant or demise a lease which she
held as an executrix subject to the interest of those whom she
represented. Thus, where a wife was administratrix of a former
husband and as such was possessed of a term of years as lessee,
her second husband had power to grant the term.^^ Upon the
death of a wife who is an executrix or administrator no prop-
erty in terms of years held by her as such passes to the husband
but they devolve upon the administrator de bonis non of the
deceased wife.^* A feme sole, at the common law can act as a
guardian in socage or by appointment under a statute. By her
marriage her husband acquires no authority to possess or con-
trol the property of the ward or to receive its rents or profits,
and a payment to him on account of the ward, unless with the
consent of the wife is not binding either on the guardian or the
ward.^"

§ 26. Disposition of a term by the husband of a lessee to
take effect at his death. Though the husband may not be-
queath a term which lie holds by his marital right he may dur-
ing the coverture grant subleases out of the term to begin after
his death which will bind the wife. As he may during cover-
ture dispose of the whole term, nothing prevents him from dis-
posing of any part of it during the coverture. His irrevocable
disposition of a portion of the term during coverture binds his
estate at once though it has no operation until his death. This
disposition of the chattel differs i-adically from a devise for a
devise not being operative until his death comes too late to pre-
vent the operation of the rule Avhich on his death at once vests
the term in the surviving wife and nullifies the devise. The
portion of the term remaining after the sublease by the husband

leWankford v. Wankford, 1 Wankford, 1 Salk. 299, 30C; and

Salk. 299, 306. Arnold v. Bidgood, Cro. Jac. 31S.

17 Co. Litt. SFila. 10 Co. Litt. 351a.

isLevick V. Coppin, 3 Wils. 277; 20 Holmes v. Field, 12 111. 424.
2 W. Bl. 801; See Waukford v.

PARTIES TO THE LEASE, 27

on the termination thereof and which he has failed to dispose
of belongs to the surviving wife.-^ If, however, the husband dur-
ing coverture grants the whole term on condition "^^hich is
broken, his executor may enter and the wife though surviving
him is barred for there was an absolute conveyance during the
coverture, and the breach of the condition was contingent and
uncertain. So. too, as the breach happened after the death of
the husband the disposition was continuous and unbroken dur-
ing his life. On the other hand if the breach occurs during the
life of the husband and he re-enters for the breach the status quo
is restored and his possession thereafter is precisely the same
as it was before. If the wife survive liim she will take precisely
as though the disposition never had been made by him. If,
however, the husband shall merely charge the term with the
payment of a rent and die, the wife is no longer bound because
the term itself, not having been disposed of, all intermediate
grants end with his life.--

§ 27. Leases of community property. In some of the west-
ern states an ownership of property by the husband and wife
called "community property" is recognized. The decisions are
not harmonious on the question of the power of the husband to
make a valid lease of the community property. In the state of
California the courts hold, in accordance with the law of Mexico
from which the California law is derived, that the title to the
property held in community is in the husband and for that
reason he can dispose of it absolutely as though it were his own.
He may sell it ^^ or he may mortgage ^* without the wife's con-
sent. That is to say he can transfer or incumber it by a deed
signed by him alone. It follows therefore that he may lease the
community property for a term of years and collect and use the
rents of the same. In AA^ashington the law- is otherwise. In that
state the matter is regulated by a statute under which a lease of
the community property must be signed by the wife. The stat-
ute forbids the husband to encumber the community property.
In that state unless the wife joins in the lease of the community

21 Loftus Case, Cro. Eliz. 279. 24 Bernal v. Gleim, 33 Cal. 668;

22 Co. Litt. 4Gb, 351a; Brace- Tolman v. Smith, 85 Cal. 280;
bridge v. Cook, Plowd. 418. Earchman v. Byrne, 83 Cal. 23.

23 Fuller V. Ferguson. 26 Cal.
546; Tustin v. Faught, 23 Cal. 237.

28 LAW OP LANDLORD AND TENANT.

property, it is void,-'^ and the lessee enjoys no rights thereunder
provided he knew the land was community property. It seems
under the statute that a tenant who did not know the lease was
community property may abandon the land. He must, however,
demand a valid lease before he does so and the refusal of the
wife to grant it will exempt him from the payment of rent.-*
Not only may the tenant refuse to pay rent but he may, after
the wife has refused to sign the lease recover damages against
her.-^ And if a tenant has entered under a lease signed by the
husband only he may procure a specific performance of the
lease against the wife where it was executed with her knowledge
and consent though not sigTied by her.-^

§ 28. The modern rule as to the relation of the mortgagor
and mortgagee. In order to understand the position of the
tenant of a mortgagor as regards the mortgagee before the con-
dition of the mortgage is broken, we must state a general prin-
ciple relating to the law of real estate mortgages. By the mod-
ern rules of law, and also in equity, a mortgagor in possession
of the premises is regarded as the legal owner and the mortgage
conveyance is regarded as a security. The mortgage conveys no
title to the land. The mortgagee has but a chattel interest and
the mortgagor continues to hold the freehold. The mortgagor,
being the legal owner and in possession, may lease the land and
he and his grantee are entitled to the rents and profits and they
may sue the lessee to recover them.-^ A mortgagor has a right
to the possession in modem times at least until entry by the

2» Snyder v. Harding, 34 "Wash. 30 Iowa, 26S; Norcross v. Norcross,

236, 75 PaG. Rep. 812. 105 Mass. 265; Miner v. Beekman,

2« Isaacs V. Holland, 4 Wash. 54, 11 Abb. Prac. (N. Y.) 147;

57, 29 Pac. Rep. 976; Tryon v. Da- O'Dougherty v. Felt, 65 Barl).

vis, 8 Wash. 106, 35 Pac. Rep. 598. (N. Y.) 220; Mason v. Lenderoth,

2T Dietz V. Winehill, 6 Wash. S8 A. D. 38, 84 N. Y. Supp. 740;

109, 32 Pac. Rep. 1056. Wyckoff v. Scofield, 98 N. Y. 475;

28 Payne v. Still, 10 Wash. 433, Williams v. Beard, 1 S. Car. 309;
38 Pac. Rep. 994. Ihayer v. Cramer, McCord, (S.

29 Jackson v. Lodge, 36 Cal. 28, Car.) Ch. 395; Buchanan v. Mun-
41; Mark v. Witzler, 39 Cal. 247: loe, 22 Tex. 537; Whalin v. White,
Elfe V. Cole, 26 Ga. 197; United 25 N. Y. 462. 465; Astor v. Turner,
States Bank v. Athens Armory, 11 Paige (N. Y.) 436; Lawrence v.
35 Ga. 344; West v. Adams, 106 Conlan, 28 Misc. Rep. 44. 56 N. Y.
111. App. 114; Priest v. Wheelock, Supp. 345.

59 Ind. 497; White v. Wittemeyer,

PARTIES TO THE LEASE. 29

mortgagee or until the premises are sold under a foreclosure.
After a breach of the condition his possession, may be terminated
at any time by the mortgagee,, though he is not on that account
a tenant of the mortgagee. So long as the mortgagor or his
tenants are by the mortgagee permitted to remain in possession,
whether before or after condition broken, the mortgagor is en-
titled to receive the rents and use them for his own account and
benefit.^" The law will not imply a contract between a mort-
gagor holding over after a default and a mortgagee, that rent
or even the reasonable value of the use and occupation of the
premises shall be paid.^^ The same rules apply to a deed which
is absolute in form and without any defeasance if the purpose
of the deed is to secure a debt.^^ The possession which the mort-
gagor holds is, according to the above considerations a possession
in his own right. It is not a possession as a tenant at suffer-
ance of the mortgagee. ^^ It follows therefore that all leases
made by him subseqeunt to the mortgage are valid as against
the mortgagee down to the sale under foreclosure. Hence, a
mortgagee who takes a lease of the mortgaged premises from
the mortgagor before condition broken and while the mortgagor
is in the actual occupation of the land is a tenant of the mort-
gagor.^* A lease by the mortgagee is absolutely void, where
under the statute or otherwise, the mortgagor is entitled to
possession until foreclosure. The lease confers no right to pos-
session.^^

§ 29. The rig'ht of the mortgagee to the rent at common law.
The common law regards a mortgage in substance and effect as
an assignment of the reversion. Thus, a mortgage transfers
all the title which the mortgagor had and confers on the mort-
gagee the right to enter and hold possession of the estate in the
absence of a stipulation that until a breach of the condition the
mortgagor should hold possession. The mortgagee having en-

30 Willington v. Gale, 7 Mass. 28-41; Johnson v. Sherman, 15 Cal.

138; Mayo v. Fletcher, 14 Pick. 287.

(Mass.) 525, 531; Moss v. Galli- 33 Hopper v. Wilson, 12 Vt. 695;

more, 1 Doug. 269, 282. Crippen v. Morrison, 13 Mich. 23;

81 Mayo V. Fletcher, 14 Pick. Kidd v. Temple, 22 Cal. 255.

(Mass.) 525, 533; Gibson v. Far- 34 Wood v. Felton, 9 Pick,

ley, 16 Mass. 280; Wilder v. (Mass.) 171.

Houghton, 1 Pick. (Mass.) 87. ss Connolly v. Giddings, 24 Neb.

s2 Jackson v. Lodge, 36 Cal. 131, 134, 37 N. W. Rep. 939.

30 LAW OF LANDLORD AND TENANT,

tered is held responsible for the rents and profits of the premises
for which he must account to the mortgagor. He must apply
them to the payment of the mortgage debt and, if there is a sur-
plus, it would have to be paid to the owner of the equity of re-
demption.^® "Where the premises are not occupied by a tenant
the mortgagee may enter at once and lease them according to
the rule of the common law. If the premises at the date of the
mortgage are under lease for a term of years the mortgagee can-
not disturb the possession of the lessee who has a prior title to
his and therefore he cannot enter. But inasmuch as at common
law the mortgage is regarded as a conveyance of the reversion
the mortgagee may give notice to the lessee of the mortgagor
who is in possession under a lease prior to the mortgage, and he
will thereafter become entitled to collect the rent due under the
lease and which may subsequently become due and also to en-
force all the remedies which the mortgagor has and ever had
against the tenant.^^ Tenants who have not received notice
of the mortgagee who pay rent to the mortgagor are protected.^'^
But rents which are due and payable when the mortgagee re-
ceives his conveyance or which become due and payable before
he notifies a prior lessee of his right to collect rent, are mere
chattel interests or debts due from the tenant to the mortgagor,
which are wholly disconnected from the reversion and do not
pass by an assignment of it."'^-* The tenant of a mortgagor whose
lease is prior to a mortgage by continuing in possession after a
notice from the mortgagee to pay rent to him, becomes by im-
plication the tenant of the latter, according to the terms of the
lease signed by the mortgagor.^'^ The mortgagee cannot however

36 Robinson V. Robinson, 1 N. H. 1 Vt. 457; Newall v. Wright, 3

161; Onderdonk v. Gray, 19 N. J. Mass. 138, 159; Fitcliburg Cotton

Eq. 65; Myers v. Estell, 48 Miss. Mfg. Co. v. Melven, 15 Mass. 268,

372; Kellogg V. Rocliwell, 19 Conn. 270; Burden v. Thayer, 3 Met.

446; Harrison v. Wyse, 24 Conn. (Mass.) 79; Miriclv v. Hoppen, 118

1; Reitanbaugh v. Ludwick, 31 Pa. Mass. 282; Moss v. Gallimore,

St. 131. Doug. 278, 279.

■■i7 Mansony v. U. S. Bank, 4 Ala. 37a Russell v. Alien, 2 Allen

746; Coker v. Pearsall, 6 Ala. 342; (Mass.) 42.

Baldwin v. Walker, 21 Conn. 168, r.Tb Burden v. Thayer, 3 Met.

181; Moore v. Titman, 44 111. 367; (Mass. 79.

Russell V. Allon, 2 Allon (Mass.) ^^c Brown v. Story, 1 M. & G.

42, 43; Clark v. Abbott, 1 Md. Ch. 114.
474, 478; Babcock v. Kennedy,

PARTIES TO THE LEASE, 31

by giving the prior lessee notice to pay rent to him after con-
dition broken compel him to remain as his tenant on the terms
of the original lease. Unless the lease has been in fact or in
legal contemplation assigned to the mortgagee no privity of con-
tract exists between him and a lessee whose lease antedates his
mortgage. The lessee may therefore on receipt of notice from
the mortgagee surrender possession if he shall do so in a rea-
sonable time and he cannot thereafter be held liable for rent ei-
ther to the mortgagor, who was his lessor, or to the mortgagee.
His payment of rent to the mortgagee is a good defense in an ac-
tion by the mortgagor or by the grantee of the reversion.^^ The
rules and the rights and liabilities of the parties at common law
are very different where a lease is made after a mortgage by a
mortgagor who remains in possession by his lessee of the mort-
gaged premises. There is in such case no privity of contract
or estate between the mortgagee and the lessee who stands in
the place of and is subject only to the obligations of the mort-
gagor to the mortgagee, of whom rent cannot be collected so
long as he is allowed to remain in possession of the premises.
Hence until the mortgagee has actually entered or some equiva-
lent act has occurred, the mortgagee can maintain no action
against the lessee for the recovery of rent except on an express
promise to pay."'^

§ 30, The appointment and powers of receivers in foreclosure.
The rules regulating the appointment of receivers in foreclosure
proceedings belong more properly to the subject of mortgages
than they do to the topic of landlord and tenant. Some general

38 Smith V. Taylor, 9 Ala. 633; Watts v. Coffin, 11 Johns. (N. Y.)
Massachusetts Life Ins. Co. v. 495; Partington v. Woodcock, 5
Wilson, 10 Met. (Mass.) 126; Nev. & Man. 672, 36 E. C. L.
Myers v. White, 1 Rawle (Pa.) 41S, 6 Ad. & El. 690, 698; and see,
35.5; Weidner v. Foster, 2 P. & W. also, Peters v. Ellcins, 14 Ohio,
(Pa.) 23. 344; Rogers v. Humphreys, 4 Al.

39 Baldwin v. Walker, 21 Conn. & El. 299, 313; Hughes v. Buck-
168, 181; Fitchburg Cotton Mfg. nell, 8 Car. & P. 566; Evans v.
Co. V, Melven, 15 ^lass. 268; Field Elliot, 9 Ad. & El. 342; Higgin-
V. Swan, 10 Met. (Mass.) 112, botham v. Barton, 11 Ad. & EI.
114; The Massachusetts Hosp. 307; Burrows v. Grandin, 1 Dow!.
Life Ins. Co. v. Wilson, 10 Met. & L. 213; Wheeler t. Branscombe,
(Mass.) 126, 127; McKircher v. 5 Q. B. 373.

Hawley, 16 Johns. (N. Y.) 289;

32 LAW OF IxAJSDLOED AIsD TENAIsT.

consideration, however, may be touched upon in this place. In
the first place the mortgagee, unless he has stipulated for the
rents and profits of the estate, is not entitled to receive them
until he has acquired possession. It follows therefore that
something more than merely the failure to pay the debt is re-
quired to entitle the mortgagee to the appointment of a re-
ceiver. Where the mortgagor is insolvent, or where there is
danger that the rents wiU be wasted or misappropriated, or the
property neglected or wasted during the foreclosure, a receiver
of the rents may be appointed. The purpose of the appointment
of the receiver is to preserve the subject matter of the litigation.
In order therefore that the receiver may be appointed it must
be shown that there is a likelihood of the mortgagee suffering
a loss. If on the other hand it appears that there is no apparent
danger that the mortgagee will suffer if a receiver of the rents
is not appointed, the court will not give him this relief. *° If it
appears from the circumstances that a receiver ought to be ap-
pointed it will be his duty to collect the rents of the mortgaged
premises and to apply the net proceeds thereof, after de-
ducting the expenses of administration to the payment of the
mortgage debt. Notice of the appointment of the receiver
should be brought promptly to the tenant's knowledge.*^ A
receiver appointed in foreclosure is entitled to collect rents that
accrue in the future or which, if they have accrued, are in the
hands of the tenant when he receives notice of the receivership.
He has no title to, nor can he collect rents from the lessor or
owner which the latter has received prior to the appointment
of the receiver.*^ And even where a tenant has paid rent in ad-

40 Myers v. Estell, 48 Miss. 372, and there is danger that the rents
406; Meyer v. Thomas, 131 Ala. due from the sub-tenants may be
65, 21 So. Rep. 494; Moritz v. wasted, the court may, in an ac-
Miller, 87 Ala. 331, 6 So. Rep. 209; tion to foreclose a lien contained
Pcllan.d V. Fertilizer Co., 122 Ala. in the original lease appoint a re-
409, 25 So. Rep. 169. ceiver of these rents. The charac-

41 The right to the appointment ter of the lease and its language
of a receiver in an action to fore- creating the lien will always be
close a lien for rent created by considered. Mavor v. Northern
the lease, would presumably be Trust Co., 93 111. App. 314.
based upon the same considera- 42 Howell v. Ripley, 10 Paige
tions as are recognized in the (X. Y.) 43; Argall v. Pitts, 7S N.
foreclosure of a mortgage. If the Y. 239, 242; Whycoff v. Scofield,
tenant has sublet the premises 9S N. Y. 475, 478; Rider v. Bagley,

PARTIES TO THE LEASE. 33

vance to the mortgagor before the appointment of a receiver in
foreclosure was known to the tenant, the receiver cannot recover
the rent from the tenant. ^^ But a receiver may prevent a les-
sor from collecting the rents of the premises from the subtenants
of the lessee though the latter has paid his rent in advance to the
owner of the freehold.** In conclusion it may be said that the
tenants may, by the process of the court, be compelled to pay
their rent to the receiver and that his right to collect the rent
is superior to the rights of the creditor of the mortgagor under
a judgment which is rendered after the receiver was appointed.*^
§ 31. The effect of a foreclosure on the tenant's rights. Ac-
cording to modern theories, a tenant of a mortgagor is entitled
to possession as against the mortgagee. There is no privity of
contract between the tenant of the mortgagor and the mortgagee
by which, before the foreclosure, the tenant owes any duty to
the mortgagee; but the sale under a foreclosure which cuts off
the equity of redemption destroys all the rights of tenants whose
leases were executed subsequently to the mortgage which is fore-
closed provided they are made parties to the action.*^ The ten-
ants are divested of their estate by the decree and the sale there-
under and they are thereafter trespassers, or at the best tenants
at sufferance of the purchaser, at the foreclosure sale.*^ A lessee
takes the property subject to all rights of a mortgagee whose
mortgage is on record at the date of the lease. But the fact that
the mortgage gives the mortgagee a right to have a receiver ap-
pointed does not destroy any rights which the tenant may have
under the lease except that, upon notice to him, he must pay the
receiver the rents. *^ And the receiver can collect only such
rents as accrue and are not paid to the owner of the equity

84 N Y. 461, 465; Hollenbeck v. Cal. 255; Tucker v. Keeler, 4 Vt.

Donnell, 94 N Y. 342. 161; Thompson v. Flathers, 45

43 Hartley v. Meyer, 2 Misc. Rep. La. Ann. 120; Hartley v. ileyer, 2

56, 49 N. Y. St. Rep. 351, 20 N. Y. Misc. 56, 20 N. Y. Supp. 855.

Supp. 855. 47 McFarland R. E. Co. v. Jo-

4* Fletcher v. McKeon, 75 N. seph Gerardi Hotel Co., 202 Mo.

Y. Supp. 817, 71 A. D. 278. 597, 607, 100 S. W. Rep. 577; Cul-

45Woodwatt V. Connell, 38 111. verhouse v. Wortz, 32 Mo. App.

App. 475. 419.

46 0akes v. Aldridge, 46 Mo. 48 Fletcher v. McKeon. 71 A. D.

App. 11; Crippen v. Morrison, 13 278, 75 N. Y. Supp. 817.
Mich. 23, 35; Kidd v. Temple, 22

3

34 I^VW OF LANDLORD .VND TENANT.

of redemption.*^ Any rights which the lessee may have to
remove his fixtures, or to recover on a covenant of the lease
from his landlord, he will be able to enforce down to the time
that the property is sold on the foreclosure. The mere fact that
the tenant whose lease was subsequent to the mortgage continues
in possession after the mortgagee notifies him of the mortgage
and demands rent from him does not constitute him a tenant of
the mortgagee in the absence of other circumstances from which
a tenancy could be implied.^"

§ 32. The right to rents of the purchaser at the sale under
foreclosure. The mortgagor may collect rents accruing from
his tenants down to the day of the delivery of the deed to the
purchaser at foreclosure.^^ To protect himself the purchaser,
as soon as he receives the deed, should at once notify all the
tenants that he claims to receive all rent from them which may
thereafter accrue. Usually the decree directs tliat he be let into
possession on the presentation of the deed. The title of a pur-
chaser on foreclosure is not perfect nor is he entitled to any
rent payable in advance until he has fully complied with a di-
rection in the decree in foreclosure requiring him to produce to
the tenant the deed of the sheriff and a certified copy of an
order confirming the sale.^^ Where a judgment in foreclosure
provides that the purchaser at the foreclosure sale shall be let
into possession upon the production of the deed, he does not ac-
quire title, or the right to collect the rents until he receives his
deed. The mortgagor up to that time continues to be the owner
and may legally collect the rents. Nor can the purchaser sub-
sequently recover from him rents which he has collected prior
to the delivery of the deed. Neither can he recover rents from
the tenants which are payable in advance after the foreclosure
sale, unless he shall promptly notify the tenants that he is

49 Wyckoff V Scofield, 98 N. Y. Misc. Rep. 538, 27 N. Y. Supp. 134,
475; Rider v. Bagley, 84 N. Y. 461. 58 N. Y. St. Rep, 11; O'Neill v.

50 Towerson v. Jackson, 61 L. Morris, 28 Misc. Rep. 613, 59
.T. J. B. 36 (1891), 2 Q. B. 484, 65 N. Y. Supp. 1075; Mason v. Lende-
L. T. 332, 40 W. R. 37, 56 J. B. 21. roth, 84 N. Y. Supp. 740, 741; As-

oiWhalin) v. White, 25 N. Y. tor v. Turner, 11 Paige (N. Y.)

462, 465; Mitchell v. Bartlett, 51 436; Clason v. Gorley, 5 Sandf. (N.

N. Y. 447, 451; Peck v. Knicker- Y.) 447.

booker Ice Co., 18 Hun (N. Y.) r,2 whalin v. White, 25 N. Y. 462,

183; Cummiugs v. Rosenberg, 6 464.

PAETIES TO THE LEASE. 35

the owner." And this rule as to the collection of rents, applies
to a case where the mortgagor himself remains in possession after
the foreclosure sale. The purchaser on foreclosure may treat
him as a trespasser, or as a tenant; but he cannot collect rent
from a mortgagor holding over after foreclosure prior to a de-
mand on him for possession or for the payment of rent if he de-
sires to remain.^* This rule applicable to the mortgagor holding
over does not apply however where the mortgage expressly de-
clares that the mortgagor shall become the tenant of the pur-
chaser at the foreclosure sale. The purchaser may collect rent
from the day of the delivery to him of the deed without demand,
or notice to the mortgagor holding over."^

§ 33. The power of the federal government to lease lands.
Express power to lease land for governmental purposes is usually
conferred by act of congress upon those federal officials within
the scope of whose duties lies the occupation of land. The oc-
cupation of land by the federal government, with the consent
of the owner and without an assertion of ownership on the part
of the United States, raises a presumption that the relationship
of landlord and tenant exists between the government and the
owner of the land.^® The federal government will then be held
liable to pay the owner tlie reasonable value of the use and occu-
pation of the land where no rent has been agreed upon between
the parties." For the presumption in all such cases is that the

53 David Bradley & Co. v. Pea- titled to rent from that date. If
body Coal Co., 99 111. App. 427. the owner has collected rents in

54 North American Trust Co. v. advance, and this was not known
Burrow, 68 Ark. 584, 60 S. W. Rep. to the purchaser when he bought,
950. he will be entitled to a rebate

55 GrifiBth v. Brackman, 97 Tenn. upon his bid to that amount.
387, 37 S. W. Rep. 273. "Winfrey v. Work, 75 Mo. 55.

In; Massachusetts it has been &« Chills v. United States, 16

held that a mortgagee who enters Ct. CI. 79; Langford v. United

on breach of condition may coi- States, 12 Ct. CI. 338. The local

lect rent from the tenant in pos law of landlord and tenant is then

session and may expel him if he applicable. Clifford v. United

does not pay the rent. Stone v. States, 34 Ct. CI. 223. Spofford v.

Patterson, 19 Pick. (Mass.) 476. United States, 32 Ct. CI. 452.

The purchaser at partition is en- s? Clifford v. United States, 34

tilled to possession from the date Ct. CI. 223, which also holds that

of the sale. If a tenant be in pos- proof of the use and occupation

session, the purchaser will be en- of the premises by the Federal

36 LAW OF LANDLORD AND TENANT.

entry of the federal officials upon tlie land was made with an in-
tention on their part of observing the constitutional obligation
not to take property without due process of law and that they
expected to pay adequate and proper compensation and also that
the assent of the owner to the use of the land by the government
was given with an expectation on his part that he would re-
ceive compensation.^^ Aside from statutory authorization a post-
master has no power to bind the United States by a lease of
premises for use as a postoffice. But the occupation of premises
b}' a postmaster for governmental purposes in connection with
the performance of his duties as postmaster may raise an im-
plied contract on the part of the federal authorities to pay the
owner the reasonable value of the use and occupation of the
premises.^^ It has also been held that a lease entered into by an
officer of the government for a term of years is obligatory upon
the United States only until the end of the fiscal year in which
it was made with an option in the government to renew it from
year to year until the end of the term specified ; and, if the gov-
ernment abandons the premises in the middle of the fiscal year,
or at any time during such year, the landlord may recover the
rent down to the end of that fiscal year but no longer.^" Nor
will the occupancy of the premises after the expiration of such
year by a federal official have the effect of continuing the lease,
or afford the landlord an opportunity to treat the government
as holding over where the occupancy by the official is unauthor-
ized.*^^ In order that the United States shall be liable in an ac-
tion for the use and occupation of land the use and occupation
must have been with the owner's consent. "Where the United

government is sufficient to es- igencies of the oHice, and leave

tablish the relationship of land- the owner to his remedy in the

lord and tenant. courts for compensation on an im-

B8 Clifford V. United States 34 plied assumpsit, which would

Ct. CI. 223. arise under the constitution

C9 Postoffice: "While no con- whenever private property is ta-

tract that a postmaster can make ken for public use. Semmes v.

for the use of a building can be United States, 26 Ct. CI. 119, dis-

binding on the governjnent, as to tinguishing Bradley v. United

the time of occupying or price to States, 13 Ct. CI. 166, 98 U. S. 104.

be paid, or any other matters co Smoot v. United States, 38 Ct.

whatever, he may undoubtedly CI. 418.

take possession of any building oi Smoot v. United States, 38

suitable and necessary for the ex Ct. CI. 418.

PARTIE.S TO THE LEASE. 37

States in the prosecution of the war of the Rebellion took pos-
session of certain promises on land adjacent to that upon which
a battle was fought, and used the same as a hospital for sick and
wounded soldiers for several months, leaving the premises ulti-
mately in a dilapidated and ruinous condition, the owner cannot
in the absence of statute recover for their use and occupation.
The relation of landlord and tenant does not exist between the
parties, as the land was occupied without the consent of the
owner. Congress, however, has provided by statute that under
certain circumstances the owner of land may be compensated
for the use of his land occupied by the government. But the stat-
ute does not create the conventional relation of landlord and
tenant between the owner and the government or render the
latter liable for remuneration for being deprived of the use of the
premises during the period he was necessarily occupied in repair-
ing the damages done while the army was in occupation.®^

§ 34. The va'idity of leases of land owned by Indians. In
theory at least the Indians are regarded as the wards of the
federal government. It has been held that a state legislature has
no power to authorize leases of Indian lands held in reserva-
tion.®^ The matter is always regulated by treaty or federal
statute. In the absence of treaty or act of congress expressly
-conferring power upon Indians who are settled upon raserva-
tions to lease their lands, a lease by them of such land, particu-
larly to a white person, is void.®* So a note for rent of reserva-
tion land cannot be enforced where the leasing of such land is
forbidden by act of congress.®^ For it is the general rule that
the right of the Indian nations or tribes to their lands within
the United States is a right of possession or occupancy only. The
title to the fee of the lands occupied by Indians is in the United
States and the Indian title cannot be conveyed wholly or in part
to any one except to the United States.®® A good and valid

«2 Madison Female Sem. v. land from any Indian nation

United States, 23 Ct. CI. 1S8, 101. "shall be of any validity in law

G3 Buffalo R. & P. Co. V. Lavery, or in equity unless the same is

75 Hun, 396, 27 N. Y. Supp. 443. made by treaty or convention en-

64 Baker v. Jones, 38 Hun (N. tered in pursuant to the constitn-
Y.) 625. tion. Cherokee Strip Live-Stock

65 Chaffee v. Garrett. 6 Ohio, 421. Ass'n v. Cass Land & Cattle Co.,
Act. Cong. July 30. 1834 (U. S. R. 138 Mo. 394, 40 S. W. Rep. 107.

S. § 2116) provides no lease of ec Jones v. Meehan, 20 S. Ct. 1,

38

LAW OF LANDLORD AND TENANT.

grant of a part of lands owned or occupied by an Indian tribe-
or nation may be made to an individual passing to. and vesting
in him the fee simple of said lands by the execution of a
treaty between the Indian occupants of the land and the United
States. The title becomes vested by virtue of the treaty as soon
as it goes into operation without the passage of any act of con-
gress or the issuance of any patent from any executive depart-
ment of the federal government.*^' So also, where by a treaty

175 U. S. 1, 44 Law. ed. 49, citing
cases. In the early and leading
case of Johnson v. Mcintosh, 8
Wheat. 453, 5 Law. ed. 681, de-
cided in 1823, it was held that
grants of land northwest of the
river Ohio made in 1773 and 1775
by the chiefs of certain Indian
tribes to private individuals con
veyed no title which could be re-
cognized in the Federal Courts
and Chief Justice Marshall in de-
livering judgment said: "The us-
ual mode adopted by the Indians
for granting lands to individuals
has been to reserve them in a
treaty, or to grant them under
the sanction of the commissioners
with whom the treaty was nego-
tiated." The early statute on
this topic is act of July 22, 1790,
which invalidated the sale of In-
dian lands to any person unless
Etch sale was made and duly ex-
ecuted at some public treaty held
under the authority of the United
States, 1 Stat, at L. 138. See,
also, act of March 1, 1793, 1 Stat.
at L. 330, in which it was pro-
vided that no purchase or grant
of lands, or of any title or claim
thereto from any Indians or na-
tion or tribes of Indians shall be
valid unless the same be made by
treaty or convention. This pro-
vieion was subsequently re-en-
aeted in acts May 19, 179G, chap.

30, sec. 12, and March 3, 1799, sub-
stituting for the words "purchase
or grant" the words "purchase,
grant, lease or other conveyance."
See, 1 Stat, at L. 472, 746. This
language of the temporary acts of
1796 and 1799 was repeated in-
the first permanent enactment
upon the subject bein,g the act of
March 30, 1802, ch. 13 § 12. 2
Stat, at L. 143.

G7 Jones V. Meehan, 20 S. Ct. 1,
175 U. S. 1, 44 Law. ed. 49; citing
Mitchell V. United States, 9 Pet-
ers (U. S.) 711, 748, 9 Law. ed.
283, 296; Doe d. Godfrey v.
Beardsley, 2 McLean C. C. 417,
418; United States v. Brooks, 10'
How. (U. S.) 442, 460, 13 Law. ed.
489, 496; Holden, v. Joy, 17 Wall.
(U. S.) 211, 247, 21 Law. ed. 523,.
53.j; Best v. Fold, 18 Wall. (U.
S.) 112, 116, 21 Law. ed. 805, 807.
In construing a treaty between
the United States and an Indian
tribe or nation in order to ascer-
tain whether some stranger to it
may claim a valid title to land
under it the character of the par-
ties to the treaty must be taken
into consideration. The fact
must be remembered that the ne-
gotiations are carried on by fed-
eral officials who are skilled in di-
plomacy, masters of a written
language, understanding the pro-
per and technical language em-

PiVKTIES TO THE LEASE, 39

between the United States and an Indian tribe' the rights of the
nation are extinguished and certain portions of the land which
was formerly occupied by the Indians as a tribal reserv^ation are
reserved, by the treaty, to certain Indians in severalty as indi-
viduals, the individual Indian allottees take the fee simple
which is alienable at their pleasure unless the United States has
by act of congress or by a provision in the treaty expressly or
impliedly prohibited alienation. The reservation to certain indi-
vidual Indians is part of the consideration of the cession by the
tribe of its right by the treaty. Nor does it follow because be-
fore the reser\'ation only the government can purchase from the
Indians that after the reservation and creation of absolute indi-
vidual rights by and under the treaty and with the consent of
the United States the individual reservees cannot alien. The
title thus created is property and alienable unless the government
has forbidden its sale. And if the property can be sold it can
with equal propriety be leased by its individual owner.^^ It is
always competent however for congress to provide that land al-
lotted to Indians in severalty shall not be alienable. Hence it
follows that in a case where by an act of congress reservation
lands are alloted to the Indians in severalty, and it is also pro-
vided that these Indians shall on recei\ang the lands in severalty

ployed to create estates at com- meaning ot the words to lawyers
men law and assisted by an in- but the sense in which they
terpreter employed by them- would naturally be understood by
selves on the oae hand and by In- the Indians. Kansas Indians, 5
dians a weak, ignorant and de- Wall. (U. S.) 737, 760, sub nom.;
pendent class of persons, possess- Blue Jacket v. Johnson County
ing no written language of their Com'rs, 18 Law. ed. 667; "Wan- Jap-
own, usually not familiar with E Ah v. Miami County Com'rs, 18
the language in which the treaty Law. ed. 674; Choctaw Nation v.
which they sign is written and United States, 119 U. S. 1, 27, 28,
wholly ignorant of legal language 30 Law. ed. 306, 314, 315, 7 Sup.
or phraseology even when it may Ct. 75.

happen that they have some cs Jones v. Meehan, 20 Sup. Ct.

knowledge of English. It follows 1, 175 U. S. 1, 44 Law. ed. 49, af-

because of this condition of af- firming 70 Fed. Rep. 453; United

fairs that when it becomes neces- States v. Brooks, 10 How. (U. S.)

sdry to ascertain the extent and 442, 13 Law. ed. 489; Crews v.

character and an interest in land Burcham, 1 Black. 352, 17 Law. ed.

which is claimed under a treaty 91; see also Wilcoxen v. Hybar-

its language must be construed. ger, 1 Ind. Ter. 135, 38 S. W. Rep.

not according to the technical 669, 670.

40 LAW OP LANDLORD AND TENANT.

become citizens of the United states and have and enjoy all the
rights of such citizens, but the statute forbids the alienation of
such lands, a lease of land thus held by an Indian is void.^* A
lease of land in Indian Territory by citizens of the United States
is valid to all intents and purposes where all the requisites of a
valid contract have been complied with. A law of an Indian
nation prohibiting the leasing of lands in that territory does not
apply to the leasing or holding by citizens of the United States
of lands located there. The lessee of such lands being a white
man is subject to the general rules of the law of landlord and
tenant as if the property were located in any state of the union
and to the provisions of the statutes enacted by congress for the
government of the territory.^** In unlawful detainer between
persons not citizens of the Cherokee nation, a demurrer to the
complaint on the ground that it was based on a refusal to pay
rent, which was prohibited by law, is without merit as there is
no law prohibiting the payment of rent in such territory. Thus
a law of an Indian nation requiring all persons, not citizens of
the nation owning houses for the purpose of renting them, to
dispose of them within a certain time, does not, as between par-
ties who are citizens of the United States but not citizens of the
Indian nation, invalidate a lease of property held in violation
of that law.''^ For it is a general rule that the validity of a con-
tract between citizens of the United States which is valid under
the laws of the United States and of the state in which it is
made cannot be affected by the customs or laws of the Indian
tribes in whose territory the contract is execut' d.'^

«9 Beck V. Flournoy Live Stock tween persons not citizens of tlie

& Real Estate Co., 12 C. C. A. 497. Cherokee nation, a demurrer to

65 Fed. Rep. 30, 27 U. S. App. 618; the complaint on the ground that

United States v. Flourney Live it was based on a refusal to pay

Stock & Real Estate Co., 69 Fed. rent, which was prohibited by

Rep. 886; Pilgrim v. Beck, 69 law, is without merit as there is

Fed. Rep. 895. no law prohibiting the payment

70 Walker Trading Co. v. Grady of rent in such territory.
Trading Co., 1 Ind. Ter. 191, 39 ti Walker Trading Co. v. Grady

S. W. Rep. 354; In Ellis v. Fitz- Trading Co., 1 Ind. Ter. 191, 39

Patrick, (Ind. Ter.) 64 S. W. Rep. S. W. Rep. 354.
567 this case was cited and ap- 72 Anheuser-Busch Brewing

proved and it was expressly held Ass'n v. Bond, 66 Fed. Rep. 633,

that in unlawful detainer be- 13 C. C. A. 665.

PARTIES TO THE LEASE. 41

§ 35, Leases by aliens. At the common law an alien friend
may take a fee simple in land though, he has no capacity to hold,
for, upon office found, the king takes the land under his preoga-
tiveJ^^ The alien may while in possession lease his land and his
lease will be valid as against himself. The lessee's interest
in and title to the term being founded solely on the title of
his alien lessor will be subject to the possibility of termination
by a proceeding which terminates the title of the latter,

§ 36. Leases to aliens. At the common law an alien being
a friend might take, hold and transfer personal property to the
same extent and with the same power as a citizen. In relation to
real estate he was under certain disabilities whicli are not neces-
sary to enumerate here. As to the capacity of an alien to hold
land under lease under the English law a distinction was made
between the lease of a house for the habitation of a merchant,
being an alien friend and a lease of premises consisting of mead-
ows, pastures, forests or farm lands. His holding of the latter
under a lease for a term of years was always subject to office
found." He might, however, hold under a lease a house for hab-
itation as against all the world for this was necessary and allow-
able in favor of trade, for without a dwelling he could not carry
OD his trade in the kingdom.'^* But in England by statute it
was also provided " that all leases of houses or shops to aliens
being artificers or handicraftsmen should be void. The courts,
however, in construing this statute, when it was set up as a de-
fense in an action to recover rent on a lease were very prone to
confine its operation very strictly."^

§ 37. The effect of the death of the lessee on leases for terms
of years. The interest of lessees in leases for years being at the
common law mere chattel interests, though the terms which are
created by the leases may be for a thousand years, on the death of
the lessee passes to and becomes vested in the executor or admin-
istrator of the lessee." For terms for years, unlike leases at will,

72a Co. Litt. 2b. tt Cody v. Quarterman, 12 Ga.

73 Calvin's Case, 7 Coke, 2b. SS6; Schee v. Wiseman, 79 Ind.

74 Co. Litt. 2b. 389; Cunningham v. Baxley, 96
76 32 Henry VIII., c. 16, s. 13. Ind. 367; Lewis v. Ringo, 3 A. K.
TeBridgham v. Frontec, 3 Mod. INTarsb. (Ky.) 247; Journe's Siic-

'94; Pilkington v. Peach, 2 Show. cession, 21 La. An. 391; Dilling-
135; Jevan v. Harridge, 1 Sid. ham v. Jenkins, 7 S. & M. (Miss.)
308, 2 Keb. 116. 479, 487 (lease for ninety nine

42

LAW OF LANDLORD AND TENANT.

not ordinarily terminated by the death of the lessee during the
term but survive and pass to his personal representative.'^* It
is not material in connection with this rule that a lease for years
be expressly given to a man and his heirs or anciently to a sole
corporation and his successors as in any case it goes to the les-
see's personal representative upon the death of the lessee.'® So,
also, a lease to A, his executors, etc., for a j-ear, and so on from
year to year for so long as it shall please the lessor and A, his
executors, etc., does not expire on the death of A, but on that
event happening, vests in his executors.^" A lease for years
to one without naming heirs or executors, would by operation
of law, in case the lessee dies testate, vest in his executors,
and no words of limitation would alter the succession.*^ The
personal representative, if there is one, is entitled to notice to

years). Webster v. Parker, 42
Miss. 465, 471 (lease for ninety
nine years); Faber v. Mc Rae, 56
Miss. 227, 229; Sutter v. Lack-
man, 39 Mo. 91; Green v. Green,
2 Redfield Sur. (N. Y.) 408; Doe
d. Shore v. Porter. 3 Term Rep.
13, 1 R. R. 626. S. P., James v.
Dean, 15 Ves. 241, 8 R. R 171;
Murdock v. Ratcliff, 7 Ohio St. 1,
Wiley's Appeal, 8 Watts & S.
(Pa.) 244; Payne v. Harris, 3
Strobh. Eq. (S. Car.) 39. Contra
in McKee v. Howe, 17 Colo. 538,
31 Pac. Rep. 115, where a statute
was construed which provided that
"real estate" should embrace chat-
tels real and all interests in land
in fee, for life or for years, and
lands, tenements and heredita-
ments and all interests therein, it
was held that a lease for years was
. real property on the death of the
lessee and devolved upon his heir
and not upon his administrator.
See also as to the character of a
perpetual lease which in Ohio has
been by the statute divested of its
chattel qualities and is now de-
scendible to the lessee's heirs.

Gansen v. Moarman, 5 Ohio S. &
C. P. Dec. 287.

7s Alsup V. Banks, 68 Miss. 664,
9 So. Rep. 895, 24 Am. St. Rep.
294, 13 L. R. A. 598; In re Walk-
er's Estate, 6 Pa. , Co. Ct. Rep.
515; Charles v. Byrd, 29 S. Car.
544, 8 S. E. Rep. 1.

70 Co. Litt. 46b; Fulwood's Case,

4 Coke, 65a.

80 Mackay v. Mackreth, 4 Dougl.
213, 2 Chit. 461.

SI Charles v. Byrd, 29 S. C. 544,

5 S. E. Rep. 1, 4; 1 Wms. Ex. 464.
Where a term of years is be-
queathed to A. for his life and on
his death to his heirs, or to the
heirs of his body, the word "heirs"
under the rule in Shelly's case is
a word of limitation and not a
word of purchase. A. under such
circumstances takes the whole
term as personal property and
upon his death it devolves upon
his personal representatives. If
the rule in Shelly's has been abro-
gated by a statute as in most of
the states or if from the language
of the will it is clear that the
testator, In disposing of the term

PARTIES TO THE LEASE. 43-

quit where such notice is required to be given before tlie lessor
can bring ejectment.*"- "Where the defendant in ejectment alleges
that notice to quit was not served on the representative he must
show that there was a personal representative of the lessee on
whom the notice to quit might have been served. It will not
be presumed there was a personal representative as he can only
exist by appointment by will or by the issuance of letters of ad-
ministration. Hence until it be shown that there was an ad-
ministrator of a tenant from year to year, service of a notice to
quit upon his widow in possession of the premises is sufBcient.^^
§ 38. The expiration of the lease for years on the death of
the lessee. The general rule that a lease for years upon the
death of the lessee devolves as personal property upon his per-
sonal representative is of course subject to an exception where
the lease is expressly or by implication to terminate by opera-
tion of law on his death. If the lessee is the employee of the
lessor and his occupation of the premises is a mere incident of
the contract of hiring, the occupation will terminate with the
death of the servant. The relationship of landlord and tenant
under certain circumstances existing between a servant and his
employer will therefore terminate on the death of the tenant.
Thus, where a church had employed a pastor on a yearly salarj^
together with the use by the pastor of the parsonage as a resi-
dence the relationship of landlord and tenant between the par-
ties terminates at his death ; and the right of occupancy by the
pastor then ceasing, there is nothing to pass to his personal rep-
resentative.®* So, an exception to the general rule will be recog-
nized where the lessee by the terms of the lease is bound to ren-
der service to the lessor about the demised premises which ser%"-
ices are personal to the less;'e and which no one besides him-

for years intended that "heirs" 82 Roe on dem. of Shore v. Por-

should operate as a word of pur- ter, 3 T. R. 13; James v. Dean, 11

chase and not as a word of limi- Ves. 393; Rees v. Perrot. 4 Car. &

tation, A., the ancestor, will take Payne, 230.

a life estate in the term and his ss Rees v. Perrot, 4 Car. &

heir a remainder as a purchaser. Payne. 230.

The personal representative of A. s* East Norway Lake N. E. Lu-

takes nothing. Williams' Execu- theran Church v. Froislie, 37

tors, 678; Fearne Contingent Rem. Minn. 447, 35 N. W. 260.

490; Doe v. Lyde. 1 T. R. 393; Ex

parte Sterne, 6 Ves. 1.56..

44 LAW OF LANDLORD AND TENANT.

self could render. The fact that a tenant of a farm is ex-
pressly bound by his lease to see that the land, is Avell cultivated
and is fertilized, that no waste is committed, that buildings and
fences are kept in good repair and that certain houses are
erected in particular places upon the land does not imply that
his death shall terminate the term as these are services which
any good tenant may perform, either himself or bj^ others whom
he may hire for the purpose.'- The ordinary rule above stated
does not apply to a lease to a firm or a partnership of a building
which is owned by one of the partners for the purpose of carry-
ing on the business of the partnership. Under such circum-
stances when, by reason of the death of any of the partners the
partnership is dissolved, the term is at an end.^^ But where the
agreement between the partners provides that the firm shall not
be dissolved upon the death of one of the partners, but the per-
sonal representative of his estate is to be substituted for him, the
rule that the death of a partner terminates the lease does not
apply. This provision of the copartnership articles exempting
them from the operation of the ordinary in^ile that the death of
a partner dissolves the firm, being known to all the parties to
the lease will be read as a part of it and as though written in
it.8^

§ 39. The liability of the personal representative of the de-
ceased lessee of a term of years. The personal representative
of a lessee for years on the death of the lessee becomes an as-
signee of the term. But the executor of a lessee is not liable as
assignee until he takes actual possession of the premises. After
he takes actual possession he becomes liable for the rent.^* In
this respect his character and liability as an assignee or quasi as-
signee of the lessee differ very materially from those of an as-
signee by contract who is liable for the rent from the date of
the assignment whether he takes the possession or not. By tak-
ing possession the personal representative becomes liable in his

85 Charles v. Byrd, 29 S. Car. Rt in re Markle's Estate, 17 Pa.

544, 8 S. E. Rep. 1, 4. Co. Ct. Rep. 337, 5 Pa. Dist. Rep.

8" .Johnson v. Hartshorne, 52 N. 47.

Y. 172, 177; Doe v. Miles, 1 Stark. ss Ex parte Galloway, 21 Wend.

181; Doe on d. Colnaghi v Bluck, (N. Y.) 32; Howard v. Heln-

8 C. & P. 464, in which the part- erschit, 16 Hun, 177. See, Knick-

nership having heen dlssolverl no- erbocker Life Insurance Co. v.

tice to quit was dispensed with. Patterson, 75 N. Y. 589,

PARTIES TO THE LEASE. 45

representative capacity on the lessee's covenant to pay rent.^'
But the personal representative of a deceased lessee who takes
possession of and occupies the premises which had been leased
to the person whom he represents does not by this action render
himself personally liable to the lessor for the rent subsequently
accruing under the lease while he is in the occupation of the
premises. He is liable personally only for the actual profits of
the land or for so much as it is reasonably worth. And for that
proportion of the rent payable under the lease which exceeds
the profits he is liable only as in his representative capacity out
of the estate.^" In any case, however, his personal liability to
the lessor does not exceed what the premises yield and he may
show what the net profits are in a suit against him personally
for the rent brought b}^ the lessor. The law looks upon him as a
quasi assignee and he is none the less an assignee because his
personal responsibility is less than an assignee in fact.^^ AVhere
the personal representative is sued in his representative capacity
on a lease which has been signed by his decedent the estate is lia-
ble according to the express covenants of contract entered into by
the deceased and the representative cannot defend by showing
the rental value of the premises is less than the rent agreed to
be paid. Where an executor is sued personally as having entered

89 The lessee's administrator Andreae, 61 Law J. Q. B. 630;
who does not at once quit and sur- Tiaylor v. Cabanne, 8 Mo. App.
render the leased premises on his 131; Remnant v. Brembridge, 2
appointment or on a notice to quit, Moore, 94; 8 Taunt. 191, 19 R. R.
but keeps the decedent's property 495.

on the premises for several weeks, ^^ Becker v. Walworth. 45 Ohio

and claims rent from an under- St. 169, 172, 12 N. E. Rep. 1.

tenant which accrued after the The executor of a lessee cannot

death of his intestate will be pre- be made liable as assignee of a

sumed to have taken possession of term without an entry and an

the premises. He is personally li- actual taking possession by him of

able to the lessor down to the date the demised premises; but, if he

of the service of the notice to quit enter and take possession, he may

for the actual value of the use of be made liable as assignee, though,

the premises. Inches v. Dickin- by proper pleading, he may limit

son, 7 Allen (Mass.) 71, 79 Am. such liability for rent to the yearly

Dec. 765. value which the premises might

90 Fisher v. Fisher. 1 Bradf. Sur have yielded, Rendall v. Andreae,
(N. Y.) 345; In re Kemp's Estate, 61 Law J. Q. B. 630.

34 Pittsb. Leg. J. 82; Rendall v.

46 LAW OF LANDLORD xVND TENANT.

on, and being in possession of, the premises, or where he is sued
vHS being the assignee of the term he may plead in defense that
he is an executor, that he is without assets and that the prem-
ises are of less value than the yearly rent. These defenses must
be specially alleged in the answer for the presumption is that the
value of the premises is greater than the rent reserved and that
he has received or is receiving enough from the land to pay the
rent. The plea of the personal representative that the yearly
value of the premises is less than the rent agreed to be paid where
he is siied as executor and has entered as such will show that he
is not personally liable by reason of any excess due from the es-
tate but that as executor he is liable only for the amount he has
actually received.^^ The plea of an administrator that the prem-
ises were of less value than the arrears of rent and that he had
paid all the profits he had received from them is not supported
by evidence that the deceased had underlet them and that the ad-
ministrator had been unable to collect the rent from the under-
tenant or by proof that the premises were out of repaii*, where
the lease contained a covenant by the deceased to repair the prem-
ises.^^ The liability of an executor who takes possession under a
lease to his testator on a covenant to repair, contained in the lease
is usually personal. He may refuse to take possession but if he

92 Traylor v. Cabanne, 8 Mo. App. him for enforcing a personal lia-
131, 134; In re Galloway, 21 Wend. bility against him. The mere fact
(N. Y.) 32; Rubery v. Stevens, 4 that receipts signed by the lessor
Barn. & Adol. 241; Wollaston v. acknowledged payments by the ex-
Hakewill, 3 Man. & Gib. 297. The ecutor as such does not alone
lessor has the right, when the ex- show that the lessor elected to
ecutor of the lessee enters upon hold him liable for the rent in
the premises to look for his rent that capacity only, where the re-
either to the estate or to the ex- ceipts were given thus at the ex-
ecutor personally. The remedies ecutor's request so that he might
against the estate and against the use them as vouchers in the pro-
executor are not inconsistent. bate court and when the insolvency
The executor on entering upon the of the estate was unknown to th>
premises is in contemplation of lessor when he signed the receipts,
law the assignee of the lease and Becker v. Walworth, 45 Ohio St.
can avoid personal liability for 169, 173, 12 N. E. Rep. 1.
rent only by showing an express o=* Hornidge v. Wilson. 3 P. & D.
contract by the lessor to look to 641, 11 A. & E. 645; 9 L. J. Q. B.
him as executor only or such con- 72.
duct by the lessor as will piec.lude

PARTIES TO THE LEASE. 47

does so he must keep the premises in repair where the person
under whose rights he claims was bound to do so. So while an
executor who has occupied premises held by his testator under a
lease with covenants to pay taxes and rent and to keep in repair
is liable on the covenant to pay taxes and rents only so far as he
has received profits, he is liable for the breach of the covenant to
repair to the same extent as any other assignee.^*

§ 40. The remedies of the personal representative of the
lessee. The personal representative of the lessee may usually
sue to enforce any express covenant in the lease binding on the
lessor. Thus, a personal representative of the lessee may sue to
recover damages for trespass on the premises committed by the
landlord or any other person before or after the death of the
intestate,^^ or he may sue to recover the possession of a life es-
tate.^® So, too, the personal representative of the lessee may sue
the landlord for damages resulting from a forcible entry by
the landlord made at the death of the lessee."^ The personal
representative of the deceased lessee is entitled to the possession
of the premises for the remainder of the term sub.ject to his
obligation to pay the landlord for the use of the same. The per-
sonal representative cannot, because he is entitled to the posses-
sion, make a parol surrender to the landlord of the unexpired
term and take a lea^e to himself personally. The surrender being
by parol would be invalid under the statute of frauds. It would
also be set aside in equity as a violation of the duty which the
representative owes to the estate. It need not be shown that the
taking of the lease to himself personally would be beneficial to
him, as that will be presumed and the law will not permit him to

91 Tremeere v. Morrison, 4 M. & 96 Cunniiigham v. Baxley, 96

Scott, 603, 1 Bing. (N. C.) 89, 3 L. Ind. 367, 369; Sutter v. Lackman,

J. C. P. 260. "The general rule is, 39 Mo. 41.

that the executor of a lessee is lia- a^ Smith v. Dodds, 35 Ind. 452;

ble as an assignee, except that construing 2 Gav. & H. St. P. 527.

with respect to rent, his liability Where the testator at his death

does not exceed what the property held land under a lease for a term

yields; no such exception applies of years his executor is the proper

to the covenant to repair." Tre- person to begin ejectment against

meere v. Morrison, 1 Bing. N. C. a trespasser. Duchane v. Good-

89. title, 1 Blackf. (Ind.) 117; Mosher

o'Schee v. Wiseman, 79 Ind. v. Yost, 33 Barb. (X. Y.) 277.
389.

48 LAW OF Lu\.NDLOED AND TENANT.

obtain an advantage to himself at the expense of the estate which
he represents. ^^ A representative of the deceased lessee may
execute a valid sub-lease for any period short of the term which
devolves upon him by the death of the lessee. The rent which he
collects from the sub-tenant is assets of the estate for the purpose
of distribution among the next of kin.^^ "While the executor may
grant a sub-lease before letters testamentary are issued to him,
an administrator cannot do so, nor can he assign the premises
until he has received his letters. The authority of the adminis-
trator to sublet is derived from his letters of administration,
while the authority of the executor is derived from the will in
which he is appointed. The issuance of letters testamentaiy to
the executor confirms all his acts done prior thereto.^ Any dam-
ages which may be recovered against any person by a personal
representative of the lessee are personal property of the estate
and are assets in the hands of the personal representative to be
applied to the paying of debts or to be distributed according to
law.^

§ 41. The rights of an executor of a lessor. If in the lease
the lessor reserve rent to himself by name in the case of a lease
for years, the rent will be determined by the death of the lessor
during the term. If, however, he shall reserve the rent generally
without stating to whom it shall go it will go to his heirs on his
death during the term, and in such case the law will make the
distribution.^ If the lessor reserve rent to himself, his execu-
tor and assigns, and the lessee covenants to pay the executor, tlie
lease survives the death of the lessor and the heirs and devisee
may sue and recover the rent though it is expressly reserved to
the executor. The rather technical character of these rules of the
old common law have been modified in modern times. As a gen-
eral principle rents which have accrued and become due and

88 Charles v. Byrd, 29 S. Car. i Bank of Hamilton v. Dudley's

544, 559, 8 S. E. Rep. 1. Lessee, 2 Pet. (U. S.) 492, 493.

99 Bacon's Abr. tit. Lease, (1)7; 2 Schee v. Wiseman, 79 Ind. 389,

Finch's Case, G Coke, 67b; Inches 392.

V. Dickinson, 2 Allen (Mass.) 71, 3 Co. Litt. 47; Plow. 171; Whit-

78 Am. Dec. 765; Bendall v. Sum- lock's Case, 8 Co. 68, 71; Sachere-

mersett, 2 W. Bl. 692; Hudson v. rell v. Frogott, 2 Saund. 367; Sury

Hudson, 1 Ark. 400; Wankford v. v. Brown, Lutch, 99, 101; Jaques

Wankford, 1 Salkeld, 299, 301; v. Gould, 4 Cush. (Mass.) 384, 387.
Broker v. Charters, Cro. Eliz. 92.

PARTIES TO THE LK.VSE. 49

payable during the lifetime of the lessor, if he is the owner in
fee simple of the land, go to his personal representative on his
death and are assets in his hands for the payment of debts. It
is not material whether the rents are reserved to the lessor alone
or whether they are reserved to him and his executors.* But
rents accruing subsequently to the death of the lessor are an. in-
cident of the reversion and go to the heirs and devisees of the
lessor at the death of the lessor. ITie personal representative of
the deceased lessor has no title to, nor can he recover from the
lessee rents which have acciiied after the death of the person
whom he represents.^ The fact that the will of the deceased
lessor confers upon his executor a power of sale for the purpose
of paying debts or legacies does not confer a power upon the
executor to collect the rents which accrue after the death of the
testator, or to use them as assets of the estate." For the power
in the executor to sell is merely a power in trust and confers no
estate in the land on him which entitles him to its possession, or
which places him in the position of a landlord, as respects any
tenant who may occupy the land. The power of sale is a mere
naked power. The land devolves upon the heir or devisee of the
lessor subject to be divested by the exercise of the power of sale.
Until that takes place the heir or devisee may occupy the land

4 Wells V. Cowles, 4 Conn. 182; 280; Lobdell v. Hayes, 78 Mass.
McDowell V. Hendrix, 67 Ind. 513; 236; Bloodworth T. Stevens, 51
Ball V. First National Bank, 80 Miss. 475; Shouse v. Krusor, 24
Ky. 501; Sohier v. Eldredge, 103 Mo. App. 279; Allen v. Van Hou-
Mass. 345; Bloodworth v. Stevens. ten, 19 N. J. L. 47; In re Spears,
51 Miss. 475. 89 Hun. 49, 35 N. Y. Sup. 35; Fay

5 Masterson v. Girard's Heirs, v. Holloran, 35 Barb. (N. Y.) 295;
10 Ala. 60; Dixon v. Niccolls, 39 Fleming v. Chunn, 57 N. C. 422;
111. 372, 89 Am. Dec. 312; Foltz v. Haslage v. Krugh, 25 Pa. St. 97;
Prouse, 17 111. 487; Dorsett v. Adams v. Adams, 4 Watts (Pa.)
Gray, 98 Ind. 273, 275; Kidwell v. 160; Huff v. Latimar, 33 S. C. 255,
Kidwell, 84 Ind. 224; Crane v. 11 S. E. Rep. 758; Smith v.
Guthrie, 47 Iowa, 542; Shawhan v. Thomas, 82 Tenn. 324: Rowan v.
Long, 26 Iowa, 488, 492, 96 Am. Riley, 65 Tenn. (6 Baxt.) 67.
Dec. 164; Head v. Sutton, 31 Kan. s Clendenning v. Currier, 6 Gill
616, 3 Pac. Rep. 280; Eastin v. &J. (Md.) 420; Greenland v. Wad-
Hatchitt, 15 Ky. L. Rep. 780; Ball dell, 5 N. Y. St. Rep. 835; Watts'
V. First Nat. Bank, 80 Ky. 501; Estate. 168 Pa. St. 430, 433, 32 Atl.
Stinson v. Stinson, 38 Me. 593; Rep. 26, 36 W. N. C. 372, 47 Am.
Mills V. Merryman, 49 Me. 65; St. Rep. 893.

Getzandaffer v. Caylor, 38 Md.

4

50

LAW OF LANDLORD AND TENANT.

himself or he may lease it to others, reserving and enjoying its
rents and profits. This rule applies to a power of sale conferred
by a statute upon the executor or other personal representative
of a deceased lessor, for the purpose of paying the debts of the
decedent.^ So also, an administrator of the deceased lessor can-
not by a bill in equity have the rents which accrue and become
payable after the death of his intestate from a creditor of the
intestate, set off against a judgment obtained by the creditor,
against the administrator. The reason of this is that the admin-
istrator has no rights in or to the real property or to the profits
unless the estate is insolvent.^ The executor of the landlord
may sue the tenant for damages caused by a breach of covenant
by the tenant which happened during the life of the landlord.

7 Lobdell V. Hayes, 12 Gray
(Mass.) 236; Brooks v. Jacken,
125 Mass. 307, 309.

s Bullock V. Sneed, 13 Sm. & M.
Miss. 293. "The probate court
does not necessarily have any ju-
risdiction over the rents. The ad-
ministrator neither has the right
against the consent of the heirs,
nor Is he required, to occupy the
estate or collect the rents there-
from. He may receive the income
of the real estate by the request
of the heirs, or with their acqui-
escence. He would not be re-
garded as a trespasser in so do-
ing, unless done in opposition to
their interests, or in defiance of
their wishes. It is often conveni-
ent, and sometimes of decided ad-
vantage for him to do so; as
where heirs are minors without
guardians; or are of affairs
abroad, or unacquainted with the
management of affairs, and where
the administrator may be himself
an, heir, or have intimate business
or family relations with the estate
and in other cases. In many cases,
there is an understanding or agree-
ment, that the administrator shall
take the rents, and account for

them as assets for the benefit of
the estate, where such a course
may save the sale of the real es-
tate for debts, or where the heirs
get the advantage of them on the
general distribution. In such case
the administrator would account
in the probate court for such rents
with the general assets according
to such agreement, but not neces-
sarily by force of any requirements
of the statute. Such we believe
to be a somewhat common prac-
tice." By Peters, J., in Kimball
V. Sumner, 62 Me. 305. 310. In
Boynton v. Peterborough & Shir-
ley R. Co., 4 Cush. (Mass.) 467,
the court, by Shaw, C. J., said:
"The heir takes the estate accord-
ing to the well-known rule of in-
heritance, at the time of the de-
cease of the ancestor, subject only
to be divested by a sale, pursuant
to law, conducted in the manner
prescribed by statute. All the le-
gal consequences of this relation
are held to follow. The heir is
the owner until he is divested; he
has the exclusive possession and
right of possession; he may take
the rents and profits to his own
use and without account."

P.VRTIES TO THE LEASE. 51

This nile applies to all covenants entered into by the tenant,
unless the covenant is expressly in favor of the heir of the land-
lord, in which case, only the heir can sue; or nnl&ss the covenant
is a mere personal contract, the benefit of which dies with the
person of the landlord. This rule has been applied to breaches
■of a covenant to repair occuring during the life of the landlord.^
§ 42. The H'ability of a personal representative for rents.
If the personal representative of a deceased lessor takes pos-
session of tlie lands of his decedent, and occupies them for his
own use or leases them and retains the rents he must pay the
heirs or devisees the rental value of the lands.^" They may re-
cover the rents from him in an action at law,^^ and in equity he
■will be regarded as a trustee for the heirs and devisees to the ex-
tent of the money which came into his hands from the rents of
the premises.^- But where the personal representative is an heir
of the decedent and he collects the rent it will be presumed that
he collected it as an heir and he cannot be compelled to account
for it to the next of kin/'' A personal representative who collects
the rents has no right or duty to account for them to the next of
kin in making up his account. He is not chargeable on his ac-
counting but he is personally liable to the heirs at law for money
received and in equity as a trustee for those who by law are en-
titled to receive the rents of the real property of the person he
represents." If the personal property is insufficient to pay the

9 Raymond v. Fitch, 2 C. M. & 20 S. E. Rep. 431; Jones' Appeal,

R. .588; Kingdon v. Nottle, 1 M. & 3 Grant Cases (Pa.) 250; Robb's

Sel. 355; King v. Jones, 5 Taunt. Appeal, 41 Pa. St. 45.

518, 1 Marsh. 107; Ricketts v. is Schwartz' Estate, 14 Pa. St.

Weaver, 121 M. & W. 718, 723, 13 L. 42.

J., Ex. 195. 1^ Smith v. King, 22 Ala. 558;

IP Henderson v. Simmons, 33 Goodrich v. Thompson, 4 Day

Ala. 291, 70 Am. Dec. 590; In re (Conn.) 215; Eppinger v. Canepa,

Misamore's Est., 90 Cal. 169, 27 20 Fla. 262; Hendrix v. Hendrix,

Pac. Rep. 6; In re Holderbaum's 65 Ind. 329, 331; Evans v. Hardy,

Est., 82 Iowa, 69, 72, 47 N. W. Rep. 76 Ind. 527; Head v. Sutton, 31

898; Stearns v. Stearns, 1 Pick. Kan. 616. 3 Pac. Rep. 280; Hen-

(Mass.) 157; Shuffler v. Turner, derson's Succession, 24 La. Ann.

Ill N. C. 297, 16 S. E. Rep. 417. 435; Lewis v. Carson, 16 Mo. App.

11 Brooks V. Jackson, 125 Mass. 342; Lucy v. Lucy, 55 N. H. 9, 10;

307, 309; Gibson v. Farley, 16 Griswold v. Chandler, 5 N. W. 492;

Mass. 280. Stagg v. Jackson, 1 N. Y. 206;

i2Autrey v. Autrey, 94 Ga. 579, Fisher v. Fisher, 1 Bradf. (N. Y.)

52

LAW OF LANDLORD jVKD TENANT.

debts, or if tlie estate is insolvent, the personal representative
may sell the land for the purpose of paying debts ; but until that
time the heirs are entitled to receive the rents and profits, and
the mere fact that the personal estate is insolvent does not author-
ize the administrator or executor to collect the rents.^^ And an
administrator who, without the consent of the widow of the de-
ceased, leases land which had been assigned to her for her dower,
will be liable to her personally for the rents which he has re-
ceived under the lease.^"

§ 43. The power of an administrator to lease the lands of
his intestate. An administrator, as such, has ordinarily no
power to execute leases of the real property of his intestate
though where an administrator is permitted by the heir to
lease land whether for the purpose of paying the debts of the
deceased, or meeting the expenses of administration or for
any other proper and legal purpose, the heir will be estopped
from subsequently questioning the validity of the action of
the administrator.^^ For an administrator may, with the

355; Campbell v. Johnson, 1 Sandf.
Ch. (N. Y.) 148; Floyd v. Herring,
64 N. C. 409; Conger v. Atwood,
28 Ohio St. 134, 22 Am. Rep. 462;
Carlisle's Appeal, 38 Pa. St. 259;
McCoy v. Scott, 2 Rawle (Pa.)
222; Jewell v. Jewell, 11 Rich. Eq.
(S. C.) 296; Stockwell v. Sargent,
37 Vt. 16.

15 Kimball v. Sumner, 62 Me.
305; Gibson v. Farley, 16 Mass.
283; Boynton V. Peterborough, etc.,
Co., 4 Cush. (Mass.) 467, 469; Pal-
mer V. Palmer, 13 Gray (Mass.)
326; Stearns v. Stearn, 1 Pick.
(Mass.) 157; Newcomb v. Steb-
bins, 99 Mass. 616, 617.

16 Boyd Y. Hunter, 44 Ala. 705.
A statute which requires an ex-
ecutor or an administrator who
uses any part of the rral estate,
to account for the income of the
same in the probate court means
that he shall accoun't for the rents
only to such persons to whom they

belong. He must account for them
to the heirs or devisees unless
they expressly or by necessary im-
plication agree that the rents shall
be applied with other assets to
pay the legacies, the debts and the
expenses of administration. Brooks
V. Jackson, 125 Mass. 307, 310.
Where by a statute an adminis-
trator has power to rent the lands
of his decedent it would seem rea-
sonable that he should account for
the rents received as assets and
in a court of probate. See, Bon-
durant v. Thompson, 15 Ala. 202;
Smith V. King. 22 Ala. 558.

17 Crowder V. Shackelford, 35
Miss. 320, 359; Ashley v. Young,
79 Miss. 129, 29 So. Rep. 822;
Stearns v. Stearns, 1 Pick. (Mass.)
157; Choate v. Arrington, 116
Mass. 552; Brent v. Chipley, 104
Mo. App. 645, 78 S. W. Rep. 270.
See, also. Jackson v. O'Rorke (Neb.
1904), 98 N. W. Rep. 1068.

PARTIES TO THE LEASE. 53

knowledge of the heirs and without their dissent rent the lands
of his intestate for the purpose of paying the debts of the estate
and the rent is then assets in his hands for that purpose.^^ In
some states it is expressly provided by statute that an executor
or administrator may rent or sell lands for the purpose of paying
the debts of the deceased person whom he represents.^' Such a
lease is not likely to be of much value or to meet with favorable
consideration from a prospective tenant. It is in some cases pro-
vided that an administrator's lease shall be terminated with his
ofi&ce.^®^ And in all cases where the execution of a lease by an
administrator is in question it is ver^^ advisable, if not indispen-
sable, for the protection of all parties, to secure the approval of
the court having jurisdiction of the estates of decedents to the
execution of the lease by the administrator.^"

§ 44. The power of administrator with the will annexed to
lease. Inasmuch as a power to sell or to lease lands conferred
upon an executor by the will is a special power in trust which
indicates and is based upon some special trust or confidence
which the testator had and reposed in the executor personally it
is a general rule that such special testamentary power to sell or
lease does not devolve on an administrator with the will annexed.
So far as leasinu- the property of the testator is concerned the
administrator with the will annexed has such powers only as are
conferred upon an administrator by statute.-^ In some of the
states by express statute the administrator with the will an-
nexed possesses and may exercise all powers which might have

18 Ashley v. Young, 79 Miss. 129, Ga. 461; Hall v. Irwin, 7 111. 176;
29 So. Rep. 822. Owens v. Cowan, 7 B. Mon. (Ky.)

19 Palmer v. Stiner, 68 Ala. 400. 1.52; Brown v. Hobson, 3 A. K.
isaBurbank v. Dyer, 52 Ind. Marsh. (Ky.) 380, 13 Am. Dec. 187;

392; Smith v. Park, 31 Minn. 70. Montgomery v. Milliken, 9 Miss.

20 Bank V. Dudley, 2 Pet. (U. S.) 49.5; Brush v. Young, 28 N. J. L.
492; Roe v. Summerset, 2 W. Bl. 237; Naundorf v. Schuman, 41 X.
692. See, also, Brent v. Chipley, J. Eq. 14, 2 Atl. 609; Dominick
104 Mo. App. 645. v. Michael, 4 Sandf. Ch. (X. Y.)

21 The following cases refer only 374; Gilchrist v. Rea, 9 Paige Ch.
to a power of sale conferred on the (X. Y.) 66; Brain v. Mattison, 54
executor by the will but by anal- X. Y. 663; Dunning v. Ocean Bank,
ogy they would doubtless be ap- 61 N. Y. 497; Ferebee v. Proctor, 2
plicable to a testamentary power Der. & B. (X. C.) 439; Moody v.
to lease laads: Lucas v. Price, 4 Vandyke, 4 Binn. (Pa.) 31; :Moo-
Ala. 679; Lockwood v. Stradley, 1 dy's Lessee v. Filmer, 3 Grant
Del. Ch. 298; Harker r. Smith, 7 Cas. (Pa.) 17.

54 LAW OF LANDLORD AKD TENANT.

been exercised by the executor including a power to sell the
land of the testator.--

§ 45. General rule as to the power of executors to make
leases. As a general rule and speaking broadly, it may
safely be said that in the absence of an express direction in
the will creating in the executor some power over the real
estate of his testator an executor has no interest in or control
over the real property of the testator which will enable him
to execute a valid lease of the same.-^ In Michigan it has been
held that an executor's lease for two years of the real estate
of his testator, which he has taken possession of and occupied
with the consent of the heirs or devisees, though void as a
lease for two years, under a statute allowing an executor to lease
the real property of his testator "from year to A^ear," is valid
as a lease from year to year.^* Inasmuch as the legal title to
land undisposed of by will is in the heir alone an administrator
cannot sue a tenant at will of his decedent for rent in the ab-
sence of any contract of renting between the administrator and
the tenant.'^

§ 46. A lease which is executed by one of several executors
or administrators. One of several executors having power to
lease may execute a lease which will be valid and binding on all
of them though by the will creating the power to lease the power
is in express words confen^ed upon all the executors.-® So, a

22 Kidwell V. Brummagim, 32 tive has the power to rent or
Cal. 436; Dilworth v. Rice, 48 Mo. to sell the lands for the purpose
124; Sandifer v. Grantham, 62 of paying the debts of the de-
Miss. 412; Hester v. Hester, 2 ceased and where in the exercise
Ired. Eq. (N. C.) 330; Creech v. of this power he claims the rents
Grainger, 106 N. C. 213; 10 S. E. which have accrued after the
Rep. 1032; In re Still's Estate, 2 death of the decedent he may re-
Pa. Dist. Rep. 105, 12 Pa. Co. Ct. cover the same as his title to the
Rep. 379, 31 W. N. C. 252. rents is the same as to any other

23 Hankins v. Kimball, 57 Ind. chose in, action. Palmer v.
42; Rutherford's Heirs v. Clark's Steiner, 68 Ala. 400.

Heirs, 4 Bush. (Ky.) 27; Ely v. 24 Grady v. Warrell, 105 Mich.

Scofield, 35 Barb. (N. Y.) 330; In 310, 63 N. W. Rep. 204.

re Hillard's Estate, 8 Luzon Leg. 25 Cummings v. Watson, 149

Reg. (Pa.) 237; Bruer v. Hayes, Mass. 262, 21 N. E. Rep. 36.G. And

10 Ohio Dec. 583. The rule of the compare, Howard v. Patrick, 38

text has been modified by statute Mich. 795.

in some states. Thus where by a 20 Chandler v. Ryder, 102 Mass.

statute the personal representa- 268; Bunner t. Storm, 1 Sandf.

TARTIES TO THE LEASE. 55

lease for years may be assigned by one of several administrators
so as to bind the others.-^ But where by a statute the majority
of several executors named must join in the execution of a con-
tract a lease signed by one is not valid as to the others. Nor
can such a. lease signed by one of two or more executors be re-
garded as binding on the others upon any presumption that the
executor who signed acted as their agent when its term exceeds
one year and the statute requires that the authority of an agent
to make a lease for more than one year shall be in writing.-'
The rule is that where a term for years is specifically bequeathed
it will on the death of the testator vest in the executor for the
purposes of administering the estate. The legatee will acquire
title through the executor and not directly from the testator.
The legatee has no right to enter or to demand or receive the
rents until the executor has given his assent to the bequest or
has accounted and turned the term over to the legatee. Hence
a person who proposes to take an assignment of the lease from
the executor or to whom the executor proposes to sublet ought to
ascertain whether or not the latter has assented to the bequest
for if he has his power over the term is at an end. The lega-
tee must be consulted and if he does not agree to the new tenant
or assignee he may eject him by judicial proceedings.^®

§ 47. A lease by an executrix being a feme sole. At the com-
mon law the power of a feme sole who was also an executrix to
lease a term as a feme sole is terminated by her marriage and
thereafter her husband must be the lessor in all leases which she
desires to make in her representative capacity.'" AVhether she

Ch. (N. Y.) 387; Ogden v. Smith, when done by one only without the
2 Paige Ch. (N. Y.) 195; Doe v. concurrence or knowledge of the
Hayes, 7 Taunt. 222; Simpson v. others. The rule is different as
Gutteridge, 1 Madd. 609, 617 (as- to the torts of one executor and as
signment of a lease); Hayes v. to acts of the executors, which
Sturges, 7 Taunt. 217. It is a could not lawfully be done by all.
very old an/d well recognized rule 2- Lewis v. Ringo, 3 A. K.
of the common law that a release, Marsh. (Ky.) 247.
surrender of a term, the confes- 2s Utah Loan & Trust Company
sion of a judgment, an attorn- v. Garbutt, 6 Utah, 342. 23 Pac. 758.
ment of one executor and any 29 Doe v. Guy. 4 Esp. 154; .John-
other lawful act which all the ex- son v. Warwick. 17 C. B. 516, Fen-
ecutors may lawfully do, will be ton v. Clegg, 9 Ex. 680.
binding and conclusive on all «o Arnold v. Bidgood, Cro. Jac

ub LAW OF LANDLORD AND TENANT.

joins with him or not in the execution of the instrument does,
not affect its validity at the common law.^^

§ 48. The equitable jurisdiction over leases made by execu-
tors. Leases which have been made by the personal represen-
tative though they be valid in law, may, under some circum-
stances, be set aside in equity on the application of interested
parties. In order that a lease made by an executor may be valid,
it must appear that the lease was made by him in order to se-
cure a due and proper administration of the property of the
deceased person whom he represents. Hence, if a lease is made
by the personal representative which is clearly improvident and
unprofitable to the persons who take the estate of the deceased
it may be annulled in equity on application of the persons who
have been prejudiced by the action of the personal representa-
tive in making the lease.^^ If the lessee is not responsible for
the waste committed by the personal representative, and particu-
larly, where he had entered upon the premises and made im-
provements, equity may decree that he should receive compensa-
tion so far as the next of kin were benefited by what he had con-
tributed. So, also, if a lease made by a personal representative
is tainted with fraud on his part to the prejudice of the benefi-
ciaries of the estate, the latter may have it set aside in equity.^'
So, generally if a sale of the land of the decedent be necessary
to enable the personal representative to pay legacies and debts of
the estate, or, if under all the circumstances a sale is more bene-
ficial to the legatees than a lease, the latter, when made by a per-
sonal representative, may be set aside in equity and a sale may be
ordered.^*

§ 48a. The power of trustees to grant leases. A trustee in
whom is vested the legal estate may grant leases for reasonable
times and at reasonable rents where the term of the lease does
not exceed the duration of the legal estate in the trustee.^^ In

318; Levick v. Coppin^ 2 W. Bl. ss Keating v. Keating, Loyd v.

801. Gov. Co. temp. Sugd. 613.

81 Leviclf V. Copin, 2 W. Bl. 801; 34 Drohan v. Drohau, 1 Ball & B.

1 Piatt on Leases, 3G8; Wood- 185.

fall, Landlord and Tenant, 51, 52. 35 Hutcheson v. Bennefield (Ga.

32 Margrave v. Archibold, 1 1902), 42 S. E. Rep. 422; Geer v.

Dow P. C. 107. Traders' Bank, 132 Mich. 215, 93

N. W. Rep. 437, 9 Det. Leg. N. 578.

PARTIES TO TUE LE.VSE. 57

some states the permission of the court is required before the
trustee can lease property. For example, in the state of Xew
York b}^ statute a trustee may lease real estate during the life
of the beneficiary for a term not to exceed five years without ap-
plication to the court but if a tei^m exceed that limit he must se-
cure the permission of the supreme court.^^ As a general rule
a trustee has no power to make a lease which was extended be-
yond the term of his trust.^^ A trustee, unless expressly author-
ized to do so by the person who has created the trust has no
power to make leases extending beyond the term of the trust.
If the trust estate is terminated by the death of the beneficiaiy
or by his marriage or by his attainment of his majority or by
the happening of any event which has been designated by the
creator of the trust as working its termination the lease becomes
ipso facto void.^* If the rule were otherwise it would be possible
for a trustee by granting long leases, or by making leases with
covenants of renewal, to deprive the person on whom the legal
title will devolve at the termination and expiration of the trust
term of the possession and beneficial enjoyment of the property.
The person in whom the legal interest would devolve would take
it encumbered with outstanding leases and have tenants thrust
upon him without his choice whom he could by no means get rid
of until the termination of their terms. The same rule would
apply where the trust instrument provides that on the happen-
ing of the event which terminates the trust the trustees shall
convey the trust estate to a person designated. A lease entered
into by the trustee during the existence of the trust does not
last until the estate is in fact conveyed. It terminates at the
same instant as the trust estate and a formal conveyance of the
trust estate by the trustee is unnecessary and is usually dis-
pensed with.?® Very often powers to lease in express language
are inserted in trust deeds or in wills creating trusts. Ajid
where there is a power to grant leases for twenty years a lease
by the trustee for any period short of the twenty years is

36 Weir V. Barker, 93 N. Y. Supp. 31 N. Y. Supp. 206, 208; In re Mc-
742. Caffrey, 50 Hun, 371, 3 N. Y. Sup.

37 In re Armory Board. 29 Misc. 96.

174, 60 N. Y. Supp. 882. 94 N. Y. 39 Watlcins v. Reynolds, 123 N.

St. Rep. 882, 30 Civ. Pro. Rep. Y. 211, 25 N. E. Rep. 322.

38 Gomez v. Gomez, 81 Hun, 566,

58 LAW OF LANDLORD AND TENANT.

valid.^" So. a. power to lease for any time not to exceed twenty-
one years Avill authorize a lease for twenty-one years which
is detenninable at the option of the lessee at the expiration
of a less number of years.*^ To state the rule concisely any
lease by a trustee for a term which is less than the term permit-
ted to be made by a power vested in him is valid though it may
exceed the duration of the trust. But the power to lease for
twenty-one years or to make building, and repairing leases for
sixty-one years will authorize a lease for forty years containing
the usual covenant by a tenant to repair.*^

§ 48b. The proper covenants in leases by trustees. In the
absence of anj^ instructions contained in the instrument creat-
ing the trust prescribing what conditions or covenants shall be
inserted in the lease, any covenants may be inserted in leases
by trustees which are consistent with the general intention of
the creator of the trust and which do not prejudice the interest
of the beneficiary or of the person who takes the legal interest
after the trust has terminated.*^ There ought, however, always
to be a covenant by the lessee to pay the rent. If this be not
inserted an assignment of the lease by him will prevent the col-
lection of rent in case the term created by the lease shall extend
beyond the term of the trust. There ought always to be a coven-
ant providing for a re-entry upon the breach of a condition by
the lessee so that the remainderman may be protected as well as
the trustee. A trustee cannot, unless expressly authorized to do
so by the terms of the trust insert covenants of renewal in the
lease. His covenants for a renewal though perhaps binding on
him during the trust term will not bind those who take the prop-
erty after the expiration of the trust.** The trustee will him-

40 Isherwood v. Olclknow, 3 M. & tinf? trustees to lease, it was held
S 382. that the trustees might execute a

41 Edwards v. Milbank, 4 Drew. lease for a much longer term than
606, 29 L. .T. Ch. 45. the period during which the trust

42 Easton v. Tratt, 2 H. & C. 676. w^ould exist. Marsh v. Reed, 184
In a case where the circumstances 111. 263, 56 N. E. Rep. 306. affirm-
of the property, its location and ing 64 111. App. 535.

the conditions surrounding the 43 Goodtitle v Finucan, 12 Doug.

estate generally, were such that a 575.

court of equity could see that tho ■'■' Gomez v. Gomez, 31 N. Y..

interest of the beneficiary of the Supp. 200, 81 Hun, 5G0.

trust would * e favored by permit-

TARTIES TO THE LEASE. 59

self be personally liable on the covenant for quiet enjoyment.*''
A trustee whose sole power is to receive the rents and profits,
sell the land and invest the proceeds has no power to lease.*'

§ 48c. Signature by one of two or more trustees. A lease
for a term of years signed by one only of several trustees in
whom the title to the property is vested is invalid. Such a lease
is an important and material act vrhere the making of it was
essential to carry out the trust contained in the instrument under
Avhich the trustees were appointed and inasmuch as it required
an exercise of judgment and discretion should have been parti-
cipated in by all the trustees. The signature of one trustee does
not bind the others nor will there arise an implication of agency
in the case of trustees which might perhaps be recognized in the
case of joint tenants or partners. Doubtless one of several trus-
tees may under some circumstances, be entrusted by his asso-
ciates with the business of the trust as their agent. This rule,
however, will not apply to such acts as a trustee ought to as-
sume the responsibility for and which properly require a de-
liberate exercise of the will and judgment of all of them. Nor
will a lease which is invalid because not signed by all the trus-
tees become valid by the acquiescence or subsequent recognition
of its existence by the other trustees who have not signed it.
The trustees may sign at different dates and the lease will bind
all as soon as all have signed. But until all have signed it is
no lease and if it purports to lease a term of years it will be in-
valid under the statute of frauds. This being the case, mere
silence or recognition vnW not validate it for it is, at most, only
a lease at will where the lessee has gone into possession.*'^

§ 48d. The personal liability of the trustee. The instrument
of lease will not be invalidated merely because it does not refer
to the power though it is always fitting and advisable that it
should do so. In case the right to grant a lease of the character
in question does not exist by reason of any interest which the
lessor may possess aside from the power the intention will be

45 Chestnut v. Tyson. 105 Ala. 47Winslo'^ v. Baltimore & Ohio

149, 16 So. Rep. 723. Railroad. 188 U. S. 646. 23 S. Ct.

<5 In re Hoysradt, 45 N. Y. Supp. 443, 47 Law. ed. 635, reversing 18

841. 20 Misc. 265, 79 N. Y. St. Rep. App. D. C. 438.
841.

60 LAW OF LANDLORD AND TENANT,

presumed to execute the power on his part.*^ If the lessor has
an interest and estate in the land as well as a power and the in-
strument does not clearly indicate whether he means to make
the lease by virtue of his estate or by virtue of his power and
it is immaterial whether the lease shall operate by the power
or by the estate of the lessor it will then be presumed that the
lessor intends not to execute the power but to grant the lease out
of his own estate or interest. If, however, a lease created by a
lessor who has both an estate and a power will be invalid if re-
ferred to an intention to grant a lease out of the estate and valid
if refen^ed to an intention on his part to execute the power it
will be by implication referred to an intention to execute a lease
under the power and not under the estate or interest. Trustees
■who execute a lease in their individual names, and in the body
of the lease covenant to pay the rent without using any language
showing an intention to bind the beneficiary, are liable person-
ally on the covenant to pay rent although in the caption of the
lease they are described as "trustees of" an organization men-
tioned. The word trustees is merely descriptio personarum and
the court will not receive parol evidence to show the intent of
the parties.**

48 Pitcher V. Daniel, 12 Rich. (S. « Stohie v. Dills, 62 111. 432, 438.

Car.) Eq. 349.

CHAPTER IL

CORPORATION LEASES.

§ 49. The common law power of corporations to grant leases.

50. The common law rule as to the power of a corporation to be-

come a lessee.

51. The form .of corporation leases.

52. The necessity for seal on a corporation lease.

53. By what officer a corporation lease should be executed.

54. The period for which a corporation lease may run.

55. When leases are ultra vires.

56. The effect of the dissolution of a corporation upon an existing

lease.

57. The power of municipal corporation to grant leases,

58. A municipal corporation as a tenant.

59. Ultra Vires leases by municipal corporatioms.

60. Leases of park grounds by municipal corporation.

§ 49. The common law power of corporations to grant leases.

At the common law a private corporation which by express
grant or by necessary implication has power to o\^ti and control
real estate may grant leases thereof and receive and use the
rents of the same in aU cases where the granting of the lease is
proper or necessary to enable the corporation to carry on its
business, or to carry out the purposes and object of the corpo-
ration.^ The power and capacity of the corporation in this re-
spect are the same as though it were an individual. It is usually
advisable to ascertain if tlie corporation has charter power to

1 Phillips V. Aurora Lodge, 87 etc., 14 Abb. Pr. (N.Y.) 209; Den-

Ind. 505; Dubuque v. Miller, 11 ike v. N. Y. & Rosedale Co., 80 N.

Iowa, 558; Crescent City Wharf, Y. 599; Rives v. Dudley, 3 Jones

etc., Co. v. Simpson, 77 Cal. 286, 19 (N. C.) Law, 126; Baltimore, etc.,

Pac. Rep. 426; New Orleans v. Guil- Co. v. McCutcheon, 13 Pa. St. 1;

lotte, 14 La. Ann. 875; Phillips v. Co. Litt. 44a; Attorney General v.

Eastern Railway, 138 Mass. 122; Moses, 2 Madd. 308; Spendlomes

Taylor v. Carondelet, 22 Mo. 203; v. Burkitt, Hob. 7; Bunny v.

State V. Flavell, 24 N. J. Law, 370; Wright, 1 Leon, 59; Featherston-

Nicoll V. N. Y. Cent. R. R. Co., 12 haugh v. Lee, M. P. Co., L. R. 1

N. Y. 121; Matthews V. Mayor, Eq. 318.

62 . LAW OP LANDLORD AND TENANT.

lease. But it is not always necessary that an express authority
to lease the real estate of a corporation shall be conferred upon
it by its articles of incorporation. The circumstances of the par-
ticular case may be such that a lease will be valid without ex-
press charter authority. For if a corporation is in such a condi-
tion that it cannot continue its operations successfully, and is in
failing financial circumstances, it may lawfully lease its entire
property, though it may not be expressly authorized to do so.-
So also the trustees of a corporation who by its charter are vested
with the control of its property may lease the same as an assem-
bly room when the premises are not being used by the corpora-
tion itself.^ But a lease which by its operation suspends the
ordinary business of the corporation may be absolutely void and
is unquestionably so where a statute provides that the suspension
of the business of the corporation for a specific period shall work
a forfeiture of all the rights, privileges and franchises of the
corporation.*

§ 50. The common law rule as to the power of a corporation
to become a lessee. It is undisputed that a corporation -whether
lay or ecclesiastical, aggregate or sole, at the common law" pos-
sessed the implied power to take and hold real property under a
lease from its owner so far as it is necessary to do so to carry
out the purposes for which it was incorporated. The right to
hire premises which are necessary to the cariying on of the
business of the corporation is a power which is inherent to every
corporation. So thoroughly is this recognized that the question
is hardly ever raised.^ If a corporation has actually used and
occupied land as a lessee which is necessary for its business, and

2 As to the statutory power of been held that a lease to a corpo-
a water company to lease its prem- ration in another state was valid,
ises to another water company see Black v. Delaware & R. Canal Co.,
Moore v. Chartiers Valley Water 22 N. J. Eq. 130. The charter
Co., 216 Pa. St. 467, 6.^ Atl. Rep. power to erect and maintain docks
936. confers by implication the power

3 Phillips V. Aurora Lodge, I. O. to lease such docks after their
G. T., 87 Ind. 'jO'>. erection. Smith v. Berndt, 1 N. Y.

4Conro V. Port Henry Iron Co., Supp. 108.

12 Barb. (N. Y.) 27. In conetru- s Blanchard v. Warner, 1 Blatch.

ing an express statutory power (U. S.) 258; Jesus College v.

conferred upon a corporation to Gibbs, 1 Y. & C. 145; Lowe v.

lease its property to a company London R. R. Co., 14 Eng. L. &

"in this state or otherwise" it has E. R. 10.

CORPORATION LEASES. 63

wliieli has been occupied for the carrying on of the corporation
business, with the consent of the owner it may be sued in as-
sumpsit for use and occupation.^ An express power vested in a
corporation by its charter to hire premises for corporation pur-
poses by implication vests in it all powers which are necessarily
incidental thereto and which are required to render the posses-
sion and occupation of the premises beneficial to the corporation.
The corporation would therefore enjoy the incidental power to
enter into the usual covenants in a lease as, for example, the
covenant to repair even though it would thereby become liable
to rebuild in case of the destruction of the premises by fire.'' So,
too, the power of a corporation to lease land from the owner in-
cludes by implication the incidental power to agree to pay a
specific sum of money for rent or to pay such a sum as arbitra-
tors may agree upon.^ A coi-poration which, as a lessee of land,
has entered and occupied the same cannot defend an action for
rent or for iLse and occupation on the ground that it is not a
corporation de jure. It is sufficient so far as the landlord's
rights are concerned that it is a corporation de facto while he. on
the other hand, is estopped to repudiate his obligations under
the lease upon the ground that the corporation has no legal exis-
tence where he has recognized and dealt with it as a corporation.®
The plaintiff in an action for rent is relieved from proving the
existence of a corporation in answer to a plea of nul tiel c&rpo-
raiion where it appears that there has been the execution and de-
livery of a valid lease by the landlord to the corporation. The
existence of a lease or other writing in which the corporation is
described in its corporate capacity, executed and delivered to
the corporation is prima facie proof of the existence of the cor-
poration.^"

§ 51. The form of corporation leases. Aside from the neces-
sity for a seal, no particular form is requisite to be followed in
the execution of a lease by a corporation. No different language

6 Lowe V. London R. R. Co., 14 s The Alexandria Canal Co. v.
Eng. L. & E. Rep. 19. There can Swann, 5 How. (46 U. S.) 83, 12
be no question that a corporation Law. ed. 60.

may become a tenant from year to o Whitford v. Laidler, 94 N. Y.

year. Crawford v. Longstreet, 43 145. 151, 46 Am. Rep. 151.

N. J. Law, 325. lo West Side Auction House Co.

7 Abby V. Billups, 35 Miss. 618, v. Connecticut, etc., Ins. Co., 186
72 Am. Dec. 143. 111. 15S, 57 N. E. Rep. 839.

64 LAW OP LANDLORD AND TENANT.

is required from that used in cases where the parties are nat-
ural persons." The lease to bind the corporation either as les-
see or lessor must be in its form the instrument of the corpora-
tion and not of its individual officer or agent. It may not al-
ways be necessarj^ that the signature of the lease shall be tech-
nically the signature of the corporation, though that is always
advisable. If from the body of the lease it is clearly apparent
that Uie corporation is intended to be bound, and particularly
if the corporation being the lessor shall have permitted the les-
see to go into possession and to pay rent, it cannot repudiate the
instrument because it has not subscribed to it the name of the
corporation or because it is not sealed with its corporate seal.
Hence where the agent of a corporation had made a contract
agTeeing to give a person a lease ; and the corporation had per-
mitted the latter to enter and had received the rent from him it
it bound to give him a lease and cannot refuse to do so upon the

ground that the contract was not sealed and signed by the cor-
poration.^2

§ 52. The necessity for a seal on a corporation lease. By

the ancient common law it was a rule that a corporation could
transfer or grant its real property, and in fact, could make a
contract of any description only under its corporate seal. This
doctrine, however, that a corporation can contract only under its
corporate seal is now universally repudiated.^^ Such a rule based
as it was upon the almost superstitious reverence which the early
common law tribunals in England entertained for a seal could
only be tolerated when corporations were not numerous. As
soon therefore as the increase in commercial enterprise brought
about the formation of large companies by which the capital of
numerous individuals was combined in the form of corporate
capital to carry on the increasing trade of the community the rule
was entirely abrogated. The modern rule is that all corporations,

11 Poole V. Bentley, 12 East, 168; ter v. Ely, 7 Sim. 211; Canal Co.
Morgan v. Powell, 7 Man. & G. 989. v. Wilmot, 9 East, 360; Macbean

12 Conant V. Bellows Falls Canal v. Irvine, 4 Bibb (Ky.) 17; Long
Co., 29 Vt. 2G3. V. Madison & Flax Co., 1 A. K

13 Sustaining the common law Marsh. 105; Franlifort Bank v. An-
rule see Rochester v. Pierce, 1 derson, 3 A. K. Marsh. (Ky.) 1;
Camp. 466; Rex v. Chipping Nor- In re Cape Sable Co., 3 Bland
ton, 5 East, 239; Bridge Com- (Md.) 606.

pany v. Side, 2 C. & P. 371; Car-

CORPORATION LEASES.

C5

in the absence of a restraining statute, may make all contracts
which are within the scope of their general powers without the
use of a corporate seal. Applying this general rule to the sub-
ject under discussion, it follows that the lease must be one which
the corporation has a right to make, under its charter or under
the statute law of the state in order to carry out the purpose of
its creation. And the effect of the modem repudiation of the
ancient rule is only to place a corporation upon an equality with
the individual so far as the necessity for a seal is concerned. If
a contract when executed by an individual must be under seal
in order to possess validity the same contract when executed by
a corporation must also be under seal.^*

§ 53. By what officer corporation lease should be executed.
Until the contrary appears it may safely be presumed upon the
general principles of the law of corporation contracts that the
president of a corporation has power to lease the lands of the
corporation.^^ The leasing of land on his part where the corpo-
ration has power to own land, is so manifestly for the benefit of
the corporation and seemingly so far an incident of his general
powers as its president that it will require some affirmative proof

1* Shropshire v. Behrens, 77 Tex.
275, 13 S. W. Rep. 1043. The
modern rule that a corporation
may contract without seal as ap-
plicable to contracts generally is
sustained by the following cases:
Curry v. Bank, 8 Port. (Ala.) 360;
McKiernan v. Lenzen, 56 Cal. 61;
Dennis v. Maynard, 15 111. 457;
Northeastern F. Ins. Co. v Schet-
ter, 38 111 166; B. S. Green Co. v.
Blodgett, 55 111. App 556; Chris-
tian Church of Wolcott v. John-
son, 53 Ind. 273; Ring v. Johnson
County, 6 Iowa, 263; Lathrop v.
Commercial Bank, 8 Dana. (Ky.)
114, 33 Am. Dec. 481; Kennedy v.
Baltimore Insurance Co., 3 Har. &
J. (Md.) 367, 6 Am. Dec. 499; Pe-
trie V. Wright, 14 Miss. G47; Buck-
ley V. Briggs. 30 Mo. 452; Teitig
V. Boesman, 12 Mont. 404. 31 Pac.
Rep. 371; Brady v. City of Brook-

lyn, 1 Barb. (N. Y.) 584; Gates v.
Home M. L. Ins. Co., 4 Am. Law
Rev. 395; Thew v. Porcelain Mfg.
Co., 5 Rich (S. C.) 415; Fowler v.
Bell (Tex. 1896), 35 S. W. Rep.
822; Ford v. Hill, 92 Wis. 188, 66
N. W. Rep. 115; Bank of Virginia
V. Poitiaux, 3 Rand. (Va.) 136. In
Crawford v. Longstreet, 43 N. J.
Law, S25, a lease for years by a
corporation not sealed was held
valid.

15 Baltimore & P. Steamboat Co.
V. McCutcheon, 13 Pa. St. 13. See,
also, as sustaining the general
rule Boston Tailoring Co. v.
Fisher, 59 111. App. 400; Savings
Bank of Cincinnati v. Benton, 2
Met. (Ky.) 240; Northern Cent.
Ry. Co. V. Bastian, 15 Md. 494; Pot-
ter V. New York Infant Asylum,
44 Hun (N. Y.) 367.

66 LAW OF LANDLORD AND TENANT.

to show he has not the power. But where, by tlie charter of the
corporation, the power to lease is vested exclusively in the board
of directors a court of equity may enjoin a lessee from entering
upon the possession of corjDorate real estate imder a lease made
by the president of the corporation without the authority and
consent of the board of directors.^* The general manager of a
corporation will, unless it is proved that the other contracting
parties had knowledge of the limitation of his authority be pre-
sumed to have authority to lease land which is owned by the cor-
poration.^^ This rule is based on the principle of estoppel. A
corporation which permits its general manager or any other offi-
cial to deal with the public as its general agent, as for example,
in buying and selling its real or personal property, and in hir-
ing and discharging its employes, will be estopped, as against
a lessee of premises owned by the corporation, to assert that the
powers of the general manager to act for the corporation in leas-
ing land were restricted by orders emanating from its direc-
tors.^* In all eases one who takes a lease of land owned by a
corporation should make diligent inquiries as to authority of the
agent with whom he is dealing. It has been held in one case
that the agent or other officer making the lease must have ex-
press authority to do so and that individual directors cannot
bind a corporation by a lease.^^ A lease may be binding on a
corporation when made by an agent without express authority
and at the same time the lease may not be enforced by the cor-
poration. So, a corporation cannot enforce a lease made by its
agent without the authority of its board of directors.^"

§ 54. The period for which a corporation lease may run. At
the common law a corporation owning the fee simple of land
may lease it for any term of years however long. If by statute
or at common law a corporation has power to lease its property
and franchises the fact that the lease is for so long a time as to
practically constitute a lease of the property in fee does not, as
between the parties of the lease, effect its validity.^^ Nor will

18 Yellow Jack^ Silver Min. Co. is Hartford Iron Mfg. Co. v.

V. Stevenson, 5 Nev. 224. Cambria Min. Co., 80 Mich. 491.

17 Singer Mfg. Co. v. Malean, 105 20 Berlin v. Belle Isle Scenic Ry.
Ala. 316, 16 So. Rep. 913. Co., 12 Det. Leg. N. 573, 105 N. W.

18 Phillips & Buttorff Mfg. Co. Rep. 130.

V. Whitney, 109 Ala. 645, 20 So 21 Dickinson v. Con.solidated

Rep. 333. Traction Co., 119 Fed. Rep. 817.

CORPORATION LEASES. 67

a court of equity annul a lease for a very long term made by a
corporation on the application of a minority stockholder, if the
action of the corporation in making the lease was approved by the
majority of the stockholders, unless it can be sho^vn that the
making of the lease was procured by fraud, or that its execution
was detrimental to the interest of the corporation.-- The mere
fact of the length of the tenn of the lease will not alone be con-
sidered as ground for annulling the lease. The fact that the
lease extended beyond the term of the life of the corporation
does not invalidate it. The lease is valid during the corporate
life of the corporation. If by statute the corporate existence can
be extended the lease may also be valid for such period as the life
of the corporation is extended.-* A lease to a corporation which
is to extend beyond the period of the existence of the corporation
as limited by its charter is not void for that reason. Such a case
is analogous to that for a time certain if the lessee shall live
so long. Thus a lease to a corporation for nine hundred and
ninety-nine years is valid though the corporation is to expire in
forty years particularly where it is binding on the corporation
and its successors and in the charter provisions are made for a
renewal of the charter by the state legislature.-* By statutory
enactment of the Congress the charter of a national bank may be
extended upon the expiration of its corporate existence almost
as a matter of course. It may readily be assumed from this stat-
ute that a national bank is not limited in the making of leases
of premises for banking purposes to terms which shall be lim-
ited by the corporate existence of the bank."^ The lease of prem-
ises entered into by a national bank as lessee for the sole purpose
of transacting its banking business is not invalid though the
term shall extend beyond the period of the life of the bank under
its charter. Accordingly it has been held that a lease to a na-
tional bank of premises for a term of ninety-nine years is valid.-*
The fact that a lease of property to a corporation runs to its

22 Dickinson v. Consolidated 309, 329, 2 C. C. A. 174, 10 U. S.
Traction Co., 119 Fed. Rep. 871. App. 98.

23 Hill V. Atlantic & N. C. R. 25 Weeks v. International Trust
Co., 143 N. Car. 539, 55 S. E. 854, Co., 125 Fed. Rep. 370, 374, 60 C.
864; Tate v. Neary, 65 N. Y. Supp. C. A. 236; reversing 116 Fed. Rep.
40. 898.

24 Union Pac. Ry. Co. v. Chicago, 2c Brown v. Schleier, 118 Fed.
R. I. & P. Ry. Co., 51 Fed. Rep- Rep. 981, 984, 55 C. C. A. 475, 478.

68 LiAW OF LANDLORD AND TENANT.

assignees or successors may avoid an objection that its term does
not expire until after the existence of the corporation is at an
end. And it is not material if the lease under such circumstances
is assignable, th.at it is assignable only with the consent of the
lessor. Thus a national bank may validly lease a building for
its own occupancy for a term extending beyond its existence
though the lease is assignable only upon the assent of the land-
lord."

§ 55. When leases are ultra vires. A lease, like any other
contract of a corporation, may under certain circumstances be
ultra vires. In determining whether a lease is ultra vires it
should be borne in mind that a corporation has no powers ex-
cept such as are expressly given to it by and in its charter, or
which are incident and necessary to its corporate existence. It
will be presumed to possess such powers as are necessary to en-
able it to carry into effect the express powers conferred upon it
by its charter. Corporations have almost universally the ex-
press power to own real property conferred upon them by char-
ter; and, where this is the case, the act of the corporation in
leasing lands owned by it cannot be ultra vires as the leasing of
land is an inseparable incident of their ownership and necessary
to the full enjoyment of such ownership for otherwise the o\vner
will be absolutely prevented, unless he is able to cultivate or
otherwise occupy the land himself, from deriving any profit
from his ownership. In regard to corporations leasing their
lands, the general principle should always be kept in mind by
the lessee that persons dealing with coi-porations are chargeable
with notice of the limitations imposed upon them by the terms
of their charters. The lessee ought to employ care to see to it
that the provisions of the charter, if any there be, regulating
the leasing of the property of the corporation with which he is
dealing are being complied with. But where he acts in good
faith in entering into the lease, and he is permitted to enter into
possession and to pay rent to the corporation, it will be estopped
to plead snljsequently that it acted ultra vires in making the
lease. Accordingly a lease made by a company is not ultra vires
merely because it did not receive the approval of the company as
provided for by the charter. The fact that the lessee under such

27 Weeks v. International Trust Co., 125 Fed. Rep. 370, 374; reversing
116 Fed. Rep. 898.

CORPORATION LEASES. 69

a lease entered into possession and began working the land and
with the permission of the lessor was permitted to do so for more
than three months estops the lessor.-^ A corporation having
by its charter the poAver to brew, and to sell beer and to lease
premises for that purpose has power to lease a saloon for the
purpose of selling its own beer.-^ And the fact that after taking
a lease itself of premises for that purpose it sublets them to an-
other for the same purpose will not avail the corporation to
plead ultra vires.^" So, the lease of premises by a company
which has charter power to buy and sell lager beer is not invalid
because a portion of the premises is used for saloon purposes.*^
So also, a corporation which has charter power "to carry on a
general brewing and malting business and to manufacture and
sell soda water" may execute a valid lease of premises "to be
occupied for a saloon and for no other purpose." A lease for
saloon purposes would be by implication within the power of the
corporation.^^ It is usually held that a corporation which pur-
poses to act as a lessor cannot by its action disable itself from
performing the purpose for which it was created. If the pur-
pose of the occupation by the tenant is similar to that for which
the corporation which is the lessor was incorporated there can
be no question of the validity of the lease. Thus, a corporation
which has been created to bore for oil may lease its land to a
person who intends to take the oil from it, upon a royalty to be
paid to the lessor. The lease is not an abandonment by tlia
corporation of the purpose for which it was created.^^ So also,
a corporation organized for literaiy and scientific purposes may
lease a portion of its building for theatrical and similar pur-
poses. A national bank has implied power under its charter to

2s Equator Min., etc., Co. v. Gu- S3 Starke v. J. M. Guffey, Pe-

anella, 18 Colo. 548, 33 Pac. Rep. tr oleum Co. (Tex. 1905), 86 S. W.

613. Rep. 1, affirming 80 S. W. Rep.

29 Welsh V. Ferd. Herm Brewing 1080.

Co., 47 Mo. App. 608. s* Catholic Institute v. Gibbons,

30 Welsh V. Ferd. Herm Brewing 7 Dee. Re. 576, 3 Bull, 581, af-
Co., 47 Mo. App. 608. firmed in Gibbons v. Catholic In-

31 Keeley Brewing Co. v. Mason, stitute, 7 Dec. Re. 548, 3 Bull, 887;
116 111. App. 603. Gibbons v. Catholic Institute. 34

32 Brewer, etc.. Brewing Co. v. Ohio St. 289.
Boddie, 181 111. 622, 55 N. E. Rep.

49.

70 LAW OF LANDLORD AND TENANT,

erect office buildings for its own use and to rent out offices in
them so far as the renting- of offices does not constitute an aban-
donment of the purpose for which the bank was incorporated.^^
§ 56. The effect of the dissolution of a corporation upon an
existing lease. In the absence of express statutory provision
the dissolution of a corporation operates as an extinguishment
of all debts due from or to it. In most of the states of the union
provision has been made by statute for the winding up of cor-
porations and saving the rights of those who have claims against
them at the date of their dissolution. The United States supreme
court has held that the executory contracts of a corporation are
not extinguished by its dissolution.^^ And in the state of New
York it has been expressly held that a lease to a corporation is
not terminated by its dissolution but that the obligation to pay
the rent due and which has accrued before dissolution may be
enforced against the receiver of the corporation.^" Where a
corporation on the petition of its stockholders is voluntarily dis-
solved and a receiver appointed for its property, it comes under
the rule that, in the case of an executory contract containing con-
tinuing mutual obligations, where one party voluntarily disables
himself from further performing the contract, the injured party
may sue at once for the entire damage sustained during the
whole period caused by the loss of the contract. The obligation
of the corporation to pay rent during the term is an executory
agreement the perfoniiance of which in the future may be of
value to the lessor and which the corporation by its voluntary
action disables itself from performing. The case is stronger to
protect the rights of the lessor where the receiver after his ap-
pointment elects, as he may do, to vacate the premises and to
abandon the lease as an asset of the corporation. The breach
of the covenant to pay rent is then complete and final and the
lessor may at once present his claim for damages to the receiver

35 Farmer's Deposit National receiver where a corporation had

Bank v. Western Pennsylvania leased property and the lease was

P'uel Co., 215 Pa. St. 115, 64 Atl. to run for 999 years and as long

Rep. 374. as the lessee corporation shall con-

sc Shields v. Ohio, 95 U. S. 319, tinue to exist as such and be cap-

24 Law. ed. 357. able of exercising all its functions.

37 People V. National Trust Co., New York El. R. Co. v. Manhat-

82 N. Y. 283. See fuither as to tan Ry. Co., C3 How. Pr. (.N. Y.)

the effect of the appointment of 14.

CORPORATION LEASES. 71

and sue at once if he shall refuse to pay. To accept any oth?r
view of the matter would be to confer an unlimited power upon
all corporations of repudiating all their executory covenants by
instituting proceedings by the stockliolders for voluntary dis-
solution. True the damages for such a breach of contract are
unliquidated, indefinite and difficult of proof, but a right to
bring an action at once exists which is not to be defeated by any
real or apparent difficulty in the remedy.*^

§ 57. Power of municipal corporations to grant leases. In
determining the existence of a power in a municipal corporation
to grant leases of the property which it holds and owns as such,
a clear distinction must be made, and is made b}^ most of the
cases, between property which the corporation owns in a private
or semi-private capacity, and property which it owns as a quasi
trustee for a public or charitable use. or for some public purpose.
"Where the property is held in trust for the general use of the
public the corporation cannot, without some express legislative
authority lease or alienate the same to private persons or corpo-
rations.^® This would be the case as regards lands devoted to
the use of the general public as streets and highways, parks,
wharves, levees, bridges and the like. Thus a lease by a city of
such land for private purposes will generally be invalid in the
absence of specific legislative authority in the city.*° Where
by the statute of title of school-houses is vested in the board of

38 Kalkhoff V. Nelson, 60 Minn. by a city of property in wliich it
284, 288, 62 N. W. Rep. 332. had an easement only for levee

39 Weekes v. City of Galveston, purposes is void and confers no
21 Tex. Civ. App. 102, 51 S. W. rights of possession as against the
Rep. 544, which related to a lease grantor of the easement. San-
hy a city of an island in its har- born v. Van Duyne, 90 Minn. 215,
bor originally conveyed to the 96 N. W. Rep. 41.

city by the state for the use and ^o See on the general subject

benefit of the general public and Alve v. Henderson, 16 B. Mon.

for the advancement of naviga- (Ky.) 131, 168; Macon v. Dasher

tion and fishing. See Leaux v. (Ga. 1893), 16 S. E. Rep. 75;

City of New York, 87 App. Div. Mowry v. Providence, 16 R. I. 422.

405, 84 N. Y. Supp. 514; Pennsylva- 16 Atl. Rep. 511; Warren Co. Sup.

nia R. R. Co. v. St. Louis, A. & v. Patterson, 56 111. Ill; Hoad-

T. H. R. R. Co., 118 U. S. 290; Ma- ley's Admr's v. San Francisco, 124

rine T. Co. v. Railroad. 41 Fed. U. S. 639; San Francisco v. Itzell,

Rep. 643; Thomas v. West Jersey 80 Cal. 57; Meriwether v. Gai'rett,

R. R. Co., 101 U. S. 70; Mahon v. 102 U. S. 472.
Columbus, 58 Miss. 310. A lease

/2 LAW OF LANDLORD AND TENANT.

education or in similar bodies in trust for the use of public
schools, a lease of a public school for the purpose of carrying on
therein a private or select school^, is invalid as in violation of the
trust. The use of the school by the lessee will be restrained at
the suit of a taxpayer though he may not show any special in-
jury and the mere fact that the use to which the lessee puts it
is of the same character as the public use to which it was re-
strained, is not material, for by putting it to a private use it is
evident that some portion of the public would be prevented from
availing themselves of an opportunity to receive education.*^
In respect to property which the municipal corporation owns
in a quasi private capacity the power to lease is much more ex-
tensive and usually may be exercised without express statutory
authority. The municipal corporation may lease its private
property whenever it is deemed expedient and profitable to do
so.*^ If the lease be valid it will not be set aside for some ir-
regularity in form or in the use of the corporate name.*^ Under
this rule would come all cases where the municipal corporation
should assume the power to lease buildings, such as town halls,
engine houses, sichool-houses and similar structures owned and
used by it in a semi-private capacity. Thus it is a very common
occurrence, particularly in small towns, for the municipality to
rent the town hall or city hall to private persons or to associa-
tions and lodges as a place in which to give concerts, fairs and
similar entertainments. A person who has entered in possession
under such a lease cannot be heard to plead its ultra vires char-
acter as against the city who is the lessor.** So also, where a
building, which has been devoted to public uses is no longer used
for such purposes, it may be repaired and rented to private per-

41 Weir v. Day, 35 Ohio St. 143. enabled a county to "sell or other-

42 Pacific Coast S. S. Co. v. Kim- wise dispose of its school land"
ball, 114 Cal. 414, 46 Pac. Rep. enables the county to lease the
271; Belchers S. R. Co. v. Grain land as well as to sell it and hav-
Elevator, 101 Mo. 192, 13 S. W. ing leased it its lessees will be
Rep. 822; Holywood v. First Par- protected by the courts in their
ish (Mass.) 78 N. E. Rep. 124; possession. Falls County v. De
Taylor v. Carondelet, 22 Mo. 105; Lancey, 73 Tex. 463, 11 S. W. Rep.
Hand v. Newton, 92 N. Y. 88. 492.

43 New York v. Kent, 5 N. Y. 44 Bell v. Platteville, 70 "Wis.
Supp. 567; McDonald v. Sfhnei- 139; Stone v. Oconomowoc, 71
der, 27 Mo. 405; St. Louis v. Mer- Wis. 155.

ton, 6 Mo. 476. A statute which

COEPORATION LEASES. 73

sons by the city.'*" A municipal corporation may lease a part
of a public building for private purposes if the portion leased
is not necessary for municipal use, and the lease is valid and en-
forcible until some urgent public necessity arises for the use of
the land leased for its original purposes. The use, however, must
be a public and municipal use and the susequent lease of the
same land to another person for a private use, does not give
the latter any right to occupation or to deprive the first lessee
of his possession unless the second lessee shall see fit to compen-
sate him. And upon general principles under such circumstances
the second lessee has no action against the city for a failure to
deliver possession where he Imows or can ascertain by reasonable
inquiries that the land was in the possession of another person
as lessee/®

§ 58. A municipal corporation as a tenant. Broadly speak-
ing a municipal corporation has the right to lease a building for
its use for city purposes, whenever the public necessities require
it and it is deemed more expedient to lease than to buy.'*^
This is so even in the absence of express statutory authorization
as it is a necessary incident to municipal government and essen-
tion to the accomplishment of the municipal purposes. If the
charter limits the length of the term, or prescribes the charac-
ter of the buildings which may be hired or the formalities with
which the lease must be executed it must be consulted and its
terms followed. But in the absence of such statutory require-
ments the length of the term for which the city may legally con-
tract to hire the building will depend upon all the circum-
stances among which may be mentioned the character of the
building demised, its condition when the lease is executed, the
purpose for which it is to be used by the corporation, the diffi-
culty in securing other property, the prospects as to other similar
buildings being erected, the financial condition of the city and
other relevant facts.*^ A distinction is made between those pow-
ers of the corporation which are public and legislative and those
which are of a purely business and semi-private nature. The

<5 Bates V. Bassett, 60 Vt 530. <7 Davies v. Mayor, etc., of XeTV

reunion Ry. Co. v. Chickasaw York, 83 N. Y. 207.

Cooperage Co. (Tenn.), 95 S. W. 48 City of Michigan City v.

Rep, 171. Leeds. 24 Ind. App. 271, 55 N. B.

Rep. 799,

74 LAW OF LANDLORD AND TENANT,

power to execute a lease is merely a power to do a species of
municipal business essential to the corporation's existence. And
if the power to execute a lease is not required to be evidenced in
a particular way the municipal corporation may be bound by
an implied hiring arising from its use and occupation of prem-
ises to the same extent as an individual.*^ If tlie liability of the
city to pay rent is, by the express tenns of the lease made to
depend upon the making of an appropriation to pay it by the
city council, the city is not liable in an action for the rent if
no appropriation has been made though the city has power to
make the appropriation and, having received the benefit of the
use and occupation of the premises, morally ought to have done
gQ GO Jq Texas the courts have refused to apply the well recog-
nized rule that a tenant holding over after the expiration of his
term will by implication of law be regarded as agreeing at the
option of the landlord to hold for another year upon the terms.
of his prior lease to municipal corporations. Hence, where a
city rented premises for one year, with the right of a renewal ;
and the officers of the city occupied the premises and rent was.
paid for several years, no agreement for the creation of a tenant
from year to year will be implied from holding over. The law
will not imply a contract of lease from the fact that city offi-
cials, not by law authorized to execute a lease, have continued
in the occupation of the demised premises after a valid lease for
the same has expired. Where the municipal charter or other
statute expressly prescribes in what manner and by what board
or officials municipal contracts can be validly executed by the
city, the municipal corporation cannot become bound by a lease
which is not executed by the persons, or in the manner prescribed.
And, although a contract may in a sense be implied on tlie part
of the city to do justice where it has received the benefit of a
contract which, under the statute, it had the power to make, but
which was not executed in the statutory mode, the corporation
cannot be held under an implied contract, where the contract is
wholly exeeutory.°^ It has been held that a city under a charter
providing that it shall have a general power of municipal cor-

<» City of Michigan City v. City of Bridgeport, 75 Conn. 495,

Leed, 24 Ind. App. 271, 55 N. E. 04 All. Rep. 196.
Rep. 799. f^i City of San Antonio v. French,.

BO Marsh, Merwin & Lemmon v. 80 Tex. 575, 16 S. W. Rep. 440.

CORPORATION LEASES. ii>

poration at common law, and expressly authorizing it to lease
real estate for the convenience of the inhabitants has power to
lease private land for temporary use as a public street or high-
way, where the convenience of the inhabitants requires it. For,
though it is true that ordinarily the fee simple title to streets
and public highways is vested in the municipal corporation, yet
it is conceivable that circumstances may arise calling for a tem-
porary'- use only of private grounds for public traffic. Thus, it
may be necessaiy for the city to secure a temporary right of
way around some temporary obstruction in a street or to open
a temporary street betAveen two points while a permanent street
is being built or repaired, particularly when the very dilatory
process of taking land by right of eminent domain is consid-
ered. In the case of a lease under such circumstances, the only
right the public acquires, is a right to use the premises tempo-
rarily as a street. AVhen the term is at an end, the landlord may
resume possession and after that date, his right becomes abso-
lute as against the public. The premises thus used temporarily,
never become public, but always remain private property, so
that the principles which apply to ordinary city land do not
apply here, and if the city at the expiration of the term fails to
quit, and deliver up the possession, but continues to use it for
public purposes, the landlord may at his option, hold the city as
a tenant from year to year upon the terms of the lease._^^ Unless
it is expressly empowered to do so by its charter, a municipal
corporation cannot lease land from a private owner for the pur-
pose of carrying on a park or pleasure ground as a private enter-
prise for profit to be derived from subletting the land or privi-
leges in the park or from payments by the public for admis-
sions. Neither a charter power to hold real estate nor the power
to make such necessary regulations as may be for the health,
benefit or general welfare of the public, authorizes a municipal
corporation to hire land for the purpose of engaging in private
business. The rule would be different if the pui-pose for which
the land was leased were a public one, such as the maintenance
of a public park, a public wharf, or hospital or the opening of
a street or an avenue for public travel or traffic. But the leasing
of land for private business purposes is ultra vires, and will be

62 Oilman v. Milwaukee, 31 Wis. 563.

76 LAW OF LANDLORD AJOT) TENANT.

restrained by a court of equity upon the application of a tax-
payer, and if such a lease is executed it will neither be enforced
on the application of the lessee, nor can the lessor collect rent
for its occupation by the municipal corporation.^^

§ 59, Ultra vires leases by municipal corporations. The
general principles of the doctrine of contracts ultra vires, so far
as it relates to and regulates the contracts of municipal cor-
porations, are applicable to their leases. The authority of the
officers of a municipal corporation to make leases is limited to
such leases as are either expressly or by implication within the
purposes for which the corporation was created and these pur-
poses are customarily such as are specified in the charter or other
statute under which the corporation has been incorporated.
Municipal officers are held strictly within the scope of the pow-
ers and authority conferred upon them by statute, though of
course such powers may be implied as well as express, and hence,
it follows that no municipal officer can bind the municipal cor-
poration either as lessor or lessee unless the lease be such a
one as he has statutory authority to make. Persons dealing in
contractual relations with municipalities are presumed to know
the powers and authority under the statute of the officers with
whom they deal; and, though this is simply a practical applica-
tion of the rather far fetched fiction that every one is presumed
to know the law, yet the principle is so well esta,blished and so
well recognized by the courts that it behooves every intending
lessee or lessor of a municipal corporation, not only to inform
himself of the general characteristics of its charter but also of
the specific powers, authorities and duties of the officer or offi-
cial board with whom he is dealing. "Whether or not a given
lease is ultra vires can usually be determined only upon a careful
examination of the municipal charter and collateral legisla-
tion, affecting and controlling the powers of municipal coi-po-
rations in general, or of the particular city or town in question.
There is, however, a wide distinction as to their enforcement be-
tween contracts which are illegal because beyond the corporate
powers or because contrary to public policy, and those which
are within the corporate powers but which have been made by an
officer not possessing the power to execute them. The unauthor-

03 Bloomsburg Land Imp. Co. v. Borough of Bloomsburg, 215 Pa. St.
452, 64 Atl. Rep. 602.

CORPORATION LEASES. 77

ized act of the municipal official in executing the contract with-
out the authority to do so may be ratified, either by words or
conduct on the part of the city, if it has the charter power to
make such a contract. But a contract ultra vires cannot be rati-
fied, unless the power to do so is expressly conferred by the
legislature. Thus, where a municipal official hires or rents city
property for a use or purpose which is consistent and compat-
able with the purposes of the charter, his action may be ratified
by the action of the city in accepting or delivering possession,
and paying or receiving rent according to the circumstances
whether the city is the landlord or the tenant. But a lease ab-
solutely ultra vires may be revoked by the city and the lessee
cannot recover any damages he may have sustained thereby,
though, if the consideration which has been received by the city
has not been restored a court of equity will order that this shall
be done before relieving the city from its obligation upon the
lease."*

§ 60. Leases of park grounds by municipal corporation. In
the absence of an express statutory prohibition it is generally
admitted that a municipal corporation owning and controlling
grounds which are dedicated to, and used for a public park, may
lease such grounds to private persons to be used by them for
purposes which are germane to the general purpose for which
the park was established. The principal and indeed the sole
purpose of the establishment of public parks is to provide amuse-
ment and recreation for the general public and to give an op-
portunity to those who frequent them to enjoy the fresh air and
quiet which they can find in no other place in the crowded city.
As subsidiary purposes may be mentioned the opportunity to
enjoy the beauties and delights of natural scenery as they have
been enhanced by the skill and industry of the landscape gar-
dener and to visit museums and art galleries which may be lo-
cated within the confines of the parks. In making leases the
city authorities must use care to secure such tenants only who
will not by the use which they make of the ground leased to them
seriously interfere with the purposes for which the public parks

B4 An ultra vires lease, exe- lessee for the sum he paid for it.

cuted by a city and afterward re- Weekes v. Galveston, 21 Tex. Civ,

voked by it. does not render the App. 102, 51 S. W. Rep. 544.
city liable to an assignee of the

78 LAW OP LANDLORD AND TENANT.

exist. It cannot be doubted that a lease of park lands for such
a use as would materially prevent the free, uninterrupted and
convenient use of the park by the public generally or by any
numerous class of persons would be held by the court to be an
unwarranted abuse of the municipal discretion. Leases of park
land for hotel purposes have generally been sustained. ^^ If the
hotel is conducted in a proper manner it cannot fail to add to
the advantages which the public will derive from the use of the
park. For if it is proper for the city to provide recreation and
amusement for the public it is certainly proper to provide for
the rest and refreshmeoits of those who resort to the parks for
what the city has provided for them. And inasmuch as it is
usually inexpedient if not illegal for a city to engage in hotel
keeping, it is surely in its discretion for it to delegate this work
to others under proper restrictions. By a long established cus-
tom refreshments have been for years served to visitors to the
great parks of our country, so that it is too late now for a valid
objection to be raised on the grounds of the diversion of the parks
from their primary purpose by a lease of a portion of them for
use as a hotel or restaurant.^*' In the absence of an express stat-
utory prohibition, a municipal corporation, or its park depart-
ment may lease a building on park lands for restaurant pur-
poses to a private party. Such a building properly conducted
as a restaurant will be of great public service to the frequenters
of the park, add to its attractions, and conduce to the further-
ance of the purposes for which parks are maintained, which is
the recreation and amusement of the public. The municipal
authorities cannot give a lease for an unreasonable term, or ab-
dicate the general control which they must exercise under their
charter powers over the city property. And if the effect of the
lease is to prevent the park officials from performing any of the
duties which they owe to the public, of the operation of the res-
taurant or other buildings which has been leased interferes ma-

88 Harter v. City of San .Tose, lie park for trainine; and rnnnin.^

141 Cal. 659, 75 Pac. Rep, 344, 346; race horses is not necessarily ul-

Gushee v. City of New York, 58 tra vires. But the absolute ex-

N. Y. Supp. 967; State ex rel. At- elusion of the public from the

torney General v. Schweickart, park will n,ot bo permitted. Bry-

109 Mo. 346, 19 S. W. Rep. 47. ant v. Logan, 56 W. Va. 141, 49 S.

6« A lease of a portion of a pub- E. Rep. 21,

CORPORATION LEASES. 79

terially with the use of the park by the public, or tends to dimin-
ish its utility for the purpose for which it has been created and
for which it is supposed to be maintained, a court of equity will
interfere and set aside the lease upon the instance and applica-
tion of a resident taxpayer or other person having a legal capac-
ity to sue. Thus a lease must always be subject to the power
of the park officials to make such rules and regulations for the
necessary government of the park as they may be authorized and
commanded to mal^e by the statute. On the other hand as soon
as the lease is made and the lessee enters he is protected by the
court from capricious and unnecessary interference by the park
officials.^'^

67 Gushee v. City of New York, ing 26 Misc. Rep. 287, 56 N. Y.
5,8 N. Y. Supp. 967, 42 App. Div. Supp. 1002.
37, 92 N. Y. St. Rep. 967; affirm-

CHAPTER III.

LEASES BY JOINT OWNERS.

§ 81. Leases by Joint tenants and tenants in common distinguished.

62. Tenancy in common.

63. The relation of landlord and tenants among tenants in common.

64. Tenants in common as lessors.

65. Actions by tenants in common to recover rent.

66. Effect of a lease by joint owners.

67. The right of joint tenants to the rent.

68. The liability of joint lessees for rent.

69. The liability for rent of co-partners in business.

§ 61. Leases by joint tenants and tenants in common dis-
tinguished. An important distinction exists as to the execu-
tion and operation of leases between tliose made by joint tenants
and those made by tenants in common. If all the joint tenants
unite in the execution of a lease it is regarded in law as but one
lease made by one lessor. Where several tenants in common join
in the execution of a lease it is regarded as several leases of
their separate and respective shares.^ While the joint owner-
ship lasts joint tenants taken together constitute but one tenant
of the land and therefore they are said to be seized per tout.
For purposes of alienating the land each is seized per my and for
this reason all the joint tenants are said to be seized per my et
per tout. This being the case either of the joint tenants may
make a lease of the whole property though it will not bind the
others unless they shall assent thereto. In other words a lease
of the property to be binding on all the joint tenants must eitlier
be executed or subsequently ratified by all of them.^

1 Comyn's Digest, Title, Estates 136, 162. A lease by one of sev-
(G) 6; see Jurdain v. Steere, Cro. eral joint tenants "to the extent
jac. 83. of his interest" carries not only

2 Kingsland v. Ryckman 5 Daly an undisputed interest owned by
(N. Y.) 13; Co. Litt. 168&; Rolle's him, but also an interest in the
Abr. 488; Morris v. Barry, Wils. premises claimed by him but
1; Bond V. Cartwright, 1 Vent. which is in litigation when the

LEASES TO JOINT OWNERS. 81

§ 62, Tenancy in common. This species of tenancy differs
from a joint tenancy in tliat in the case of a tenancy in common
there need be no nnity except a unity of possession. One of the
tenants in common may hold the fee and another a life estate or
a term for years. As to the quantity of land one may own the
half and several others may own the other half, either equally
or unequally among them.^ Neither of the several tenants in
common is entitled to the exclusive possession of all the land
to the exclusion of the others nor, until partition shall have
been made, to possession of a particular part of it. Hence inas-
much as he cannot exclude his co-tenants by his own occupa-
tion of the land he is unable without their consent or their
ratification to lease either all or any particular portion of the
land in such a way that his lessee shall have the right to an.
exclusive possession of what the lessor has presumed to demise
to him. A lessee of one tenant by a lease in which the others
have not joined is as to them a trespasser so far as he occupies
any portion of the land owned in common and liable to an ac-
tion quare clansum fregit.^ The co-tenant in common cannot,
before partition, lease a distinct portion of the estate by metes
and bounds unless with the assent of his co-tenant but he may do
so after a partition even though the partition shall have been
made by parol.^ Though as to the lessor's co-tenant, a lessee of
one tenant in common is a trespasser, yet, as to strangers, he is
entitled to the occupation and possession of what he has been de-
mised and may maintain his possession by the same means as
though his lea,se had been executed by all the tenants in common.'
As between him and his lessor the same rules are applicable that
regulate the relation of landlord and tenant generally. The lessee
•cannot deny the title of his lessor nor the title of the co-tenants of
his lessor where all the tenants in common derive their title from
the same source. On the other hand his lessor is bound to se-
cure him in his possession and if he is ousted by the act of the
co-tenants of his lessor it is an eviction as to his lessor and stops
the running of rent as to him.

lease is signed but wtiich he sub- b Wood v. leet. 36 N. T. 499,

sequently acquires. White v. Stu- 509; Pope v. Whitehead, 68 N. C.

art, 76 Va. 546. 101; Whaley v. Dan^er. 28 Ch. &

8 2 BlacliStone's Com. 192. Cef. 267.

^Erwin v. Olmsted, 7 Cow. (N. e Collier v. Corbett, 15 Cal. 183;

Y.) 227. Hart v. Robinson, 21 Cal. 346.
6

82 LAW OF LANDLORD xVND TENANT.

§ 63. The relation of landlord and tenants among tenanxs
in common. It is permissilbe for two or more tenants in com-
mon to agree between or among- themselves by an express lease
that one or more of them shall have the exclusive use, control
and possession of the premises, paying rent for the same to the
others. If such an agreement is made the relationship of land-
lord and tenant exists between those who are in possession pay-
ing rent and those who are out of possession receiving it. But
where there is no such express agreement the relation of -land-
lord and tenant does not exist between one tenant in common
in actual possession and the others.'^ It is entirely competent
for one tenant in common to make a lease of his undivided share
to his co-tenant and to contract with him for that purpose.* Un-
doubtedly they may create among or between themselves the re-
lationship of landlord and tenant by an express oral or written
agreement.® Of course such a contract can exist only by the
mutual intention and assent of the tenants in common. There
must be an express contract of lease to create the relationship
of landlord and tenant. The mere fact that one of two or more
tenants in common is permitted the undivided occupation and
control of the entire property and agrees to pay his co-tenants
a reasonable compensation for the use of the whole property or
for the use of his undivided share, does not create the relation
of landlord and tenant. Nor would this relation be created if
instead of the parties agreeing that one tenant in common should
pay the other what the use of the shares of the others were rea-
sonably worth they should fix and agree upon the precise sum
of money which one tenant should pay the others for the use of
the property. Nor would the use of the word "rent" to signify
a share of the monthly income thus paid establish the existence
of the relation of landlord and tenant.^" For a tenant in com-
mon in the possession of property is not liable to his co-tenants
for rent or for use and occupation unless there was an express
promise to pay rent or unless the tenant in possession excludes

7 Bird V. Earle, 15 Fla. 447; Cor- » Lsigh v. Dickson, L. R. 12 Q.
rigan v. Riley, 26 N. J. Law, 79, B. Div. 194.

783. 10 Smitli v. Smitli, 98 Me. 597,

8 Smith V. Smith, 98 Me. 597, 57 601, 57 Atl. Rep. 999. See, also,
Atl. Rep. 997.. Williamson v. Jones, 43 W. Va.

562, 27 S. E. Rep. 411.

LEASES TO JOINT OWNERS. 83

his co-tenant from possession in which event he must account
for the value of the property.^^ The rule is not altered by the
fact that if the tenant in common had not occupied the land no
rent V70uld have been received for it.^^ A tenant in common
though he does not exclude his co-tenant will be liable to account
for the rent if he shall rent the premises to another.^^ "Where a
tenant in common goes into possession of the whole of the prem-
ises under a lease thereof signed by his co-tenant as lessor and
holds over after the expiration of the term he will be presumed
to be holding over under the lease and not by virtue of his title
as a tenant in common. The ordinary rule as to tenants holding
over will then be applicable and the lessor may treat his co-ten-
ant as a trespasser or as a tenant from year to year and collect
rent according to the terms of the lease which has expired. This
rule, however, is confined to cases where the co-tenant expressly
leases the whole premises and occupies them solely by virtue of
the terms of the lease for if he claims to be in possession under
his own title a different rule is invoked.^* Married women who
are tenants in common owning their share as separate property,
may lease to their co-tenants and may thereafter, without join-
ing their husbands as parties plaintiff, sue for rent due.^° If the

11 Terrell v. Cunningliam, 70 ser v. Dresser, 40 Barb. (N. Y.)

Ala. 100; Fielder v. Chiles, 73 Ala. 300; Wilcox v. Wilcox, 48 Barb.

567; Hamby v. Wall, 48 Ark. 135, (N. Y.) 327, 329.

2 S. W. Rep. 705, 3 Am. St. Rep. 12 Stephens v. Taylor (Tex.

218; Belknap v. Belknap, 77 Iowa, 1896), 36 S. W. Rep. 1083.

71, 73, 41 N. W. Rep. 568; Israel is Ormer v. Harley, 102 Iowa,

V. Israel, 30 Md. 120, 125, 96 Am. 150, 71 N. W. Rep. 241; McCaw v.

Dec. 571; Sargent v. Parsons, 12 Barker, 115 Ala. 543, 22 So. Rep.

Mass. 149; Holmes v. Williams, 16 131, 132.

Minn. 164; Izard v. Bodine, 11 N. i* Valentine v. Healey, 86 Hun
J. Eq. 403, 69 Am. Dec. 595; Bucke- (N. Y.) 259, 261; O'Connor v. De-
lew V. Snedeker, 27 N. J. Eq. 82; laney, 53 Minn. 247, 249, 54
Valentine v. Healey, 86 Hun, 259, N. W. Rep. 1108, 39 Am. St. Rep.
33 N. Y. Supp. 246, 247; Gaboon 601. An agreement between ten-
V. Kinen, 42 Ohio St. 190; Ward ants in common, as to a mode of
V. Ward, 40 W. Va. 611. 21 S. E. enjoying the property pending a
Rep. 746, 52 Am. St. Rep. 911, 29 L. controversy as to its possession
R. A. 449; Hixon v. Bridges (Ky. does not necessarily create the
1897), 38 S. W. Rep 1046; Carver relation of landlord and tenant
V. Hoffman, 109 Ind. 54?, 10 N, E. between them. Corrigan v. Riley,
Rep. 567; Mumford v. Brown, 1 26 N. J. L. 79.
Wend. (N. Y.) 53; IMcKay v. Mum- is Gaboon v, Kinin, 42 Ohio St.
ford, 10 Wend. (X. Y.) 351; Ores- 190.

84 LAW OF LANDLORD AND TENANT.

relationship of landlord and tenant is established or shown to
exist between the tenant in common who is in occupation and
those who are not in possession, the rent stipulated for in the
instrument of letting may be collected by an action,^® and the
parties to the lease, though they are tenants in common of the
reversion, have the ordinary rights and obligations of landlord
and tenant to one another. Thus the tenant in common who is
the landlord has a lien upon the goods of the tenant in common
who is a lessee for the rent of the premises.^'' "Where one tenant
in common has by a lease demised his interest to his co-tenant
if the tenant in common, who was the lessee, continues in the
occupation as a tenant at sufferance after the expiration of the
lease he will be liable in an action for use and occupation at
the suit of his co-tenant/®

§ 64. Tenants in common as lessors. It is very well settled
that one tenant in common cannot make a valid lease of the
entire premises, which shall bind his co-tenants.^^ For example,
an agreement by one of several tenants in common allowing a
stranger to erect sign boards on the land owned in common, does
not bind his co-tenants.-" A lease of land owned by several per-
sons as tenants in common is valid as to all of them only when
all join in its execution or subsequently ratify it. Such a lease
is not binding upon those of the tenants in common who neither
join in it nor ratify it. The lease is not, however, absolutely
void as it is voidable merely by those who did not consent to its
execution.2^ The tenants in common who have not actually

i« Elliott V. Knight, 64 111. App, McCorniick, 132 111. 104, 22 N. E.

87. Rep. 511; Edmonds v. Mounsey,

17 Grabfelder v. Gazetti (Tex.), 15 Ind. App. 399, 44 N. E. Rep. 196;
26 S. W. Rep. 436. Benoist v. Rothschild. 145 Mo.

18 Leigh V. Dickesen, 54 L. J. Q. 399, 46 S. W. Rep. 1081; Mussey
B. 18, 15 Q. B. D. 60, 52 L. T. 790, v. Holt, 24 N. H. 248, 55 Am. Dec.
33 W. R. 538. 234; Hayden v. Patterson, 51 Pa.

10 Lee V. Livingston, 143 Mich. St. 261; Jackson v. O'Rorke (Neb.

203, 206, 106 N. W. Rep. 713. 1904), 98 N. W. Rep. 10G,S; Mar-

ao Walker v. Marion, 143 Mich. tens v. O'Connor, 101 Wis. 18, 76

27, 106 N. W. Rep. 400; Moreland N. W. Rep. 774. Tenants in com-

V. Strong, 115 Mich. 211. men of land may make a joint

21 De Witt V. Harvey, 4 Gray lease. Massie v. Long, 2 Ohio,

(Mass.) 486, 49; Cunningham v. 287, 15 Am. Dec. 547; Doe v. Flem-

Pattee, 99 Mass. 248; Traintor v. ing, 2 Ohio, 501.
Cole, 120 Mass. 162, 164; Harms v.

LEASES TO JOINT OWNERS. 85

joined in the lease may subsequently ratify it expressly or by
necessary implication. The acceptance of rent from a lessee by
one or more of the tenants in common who have not signed
the lease, a demand for rent made by them, their express recog-
nition that the occupant is a lessee or any other fact show-
ing an understanding on their part that he occupies the rela-
tionship of a tenant will be relevant to show a ratification.
Their silence and neglect to object to the action of their co-tenant
in executing the lease after the fact of its execution or the fact
of the occupation of the premises by a person claiming to be in
possession as a tenant may also be equivalent to a ratification.
The lessee may rightfully assume that one of several tenants in
common who alone executed his lease was authorized to do so by
his co-tenants from the fact of their acquiescence and acceptance
of rent.^^ They may elect after its execution whether they will
or will not ratify the acts of their fellow tenants in executing
the lease and, if they desire to do this, a lessee who has occupied
the premises under the lease cannot escape the payment of rent
upon the ground that the lease is void and of no effect. Thus a
sealed lease signed by one tenant in conunon for himself indi-
vidually and as an agent for the other is not absolutely void nor
can a tenant refuse to pay rent under his covenants therein,
where he has remained in possession.-^

The lessee of one tenant in common who has entered and re-
mained in possession of the premises with the consent of the other
joint owners cannot when sued for the rent claim that the lease
is void because it was not executed by all. Having enjoyed the
possession he must abide by his covenant to pay rent.-* In theory
a lease of land by two or more tenants in common is not regarded
as one lease by all of them of the premises in their entirety but as
several leases by the tenants in common of their undivided sep-
arate and respective shares. The relation of landlord and ten-
ant does not exist between a lessee of one tenant in common of a

22 Valentine v. Healey, 158 N. 24 Codman v. Hall, 9 Allen
Y. 369, 373, 52 N. E. Rep. 1097, re- (Mass.) 335, 338. where one party
versirLg 1 App. Div. 502, 37 N. Y. executes a deed, it is his deed
Siipp. 287. though the other party does not

23 Harms v. McCormick, 132 111. execute his part. Com. Dig. Fait.
104, 108, 22 N. E. Rep. 511. See C. 2.

Moreland v. Strong, 115 Mich. 211,
73 N. W. Rep. 140.

86 LAW OF LANDLORD AND TENANT,

portion of the premises and the tenants in common of the lessor
"unless the lessee shall in fact attorn to the other tenants in com-
nion.^^ For tenants in common, having each several and dis-
tinct estates in the land cannot make a joint lease of the whole
estate; but any lease made by them shall be taken to be the lease
of each of his respective share, and the cross confirmation of
each for the share of the other, with no estoppel on either part.-'
And though tenants in common join in making a lease using joint
words, the lease operates in law as the separate lease of each for
his moiety. The estates are several and the reversion is also sev-
erable.^^ The lessee of the tenants in common is the lessee of each
of them and each one is a lessor and may sue separately for the
rent unless it is expressly reserved to them jointly. The lessee
of any one tenant in common of such tenant's share in the prop-
erty which is owned in common upon his entry thereon, will have
the same rights in relation to the other tenants in common which
his lessor possessed before the demise.^^ Hence one tenant in com-
mon of land cannot regard the lessee of the share of another
tenant in common as holding the relation of lessee to the former
so as to give him a right to oust him from his possession of the
undivided share which has been leased to him.-^ "Where a lessee
occupies under a lease from one of two or more tenants in com-
mon paying the rent reserved to his lessor, he is not liable for use
and occupation to another tenant in common to whom he has not
attorned and to whose occupation of his share of the property
he has not objected. But by an attornment to the other tenants
in common, with the consent of his lessor, his lease becomes bind-
ing on both and both are equally bound by its terms as from the
beginning.^"

25 Austin V. Ahearne, 61 N. Y. Knight's Case, Moore, 199, 202;
6, 16, 17. Heatlierly d. Worthington v. Wes-

26 Beer v. Beer, 12 C. B. 60, 81, ton, 2 Wils. 232; Clialloner v.
21 L. J. C. P. 124, 16 Jur. 923; Davies, 1 Ld. Ray. 404; Doe d.
Doe d. Poole v. Errington, 1 Ad. & Poole v. Errington, 1 Ad. & E.
E. 750, 755, 3 N. & M. 646, 1 Mo. 750, 755.

& Rob. 343; Joules v. Joules, 1 28 Keay v. Goodwin, 16 Mass.

Brown, 39; Trepart's Case, 6 Rep. 1, 4.

14b; Moore v. Fursden, 1 Show, 29 King v. Dickerman, 11 Gray

342. (Mass.) 480.

27 1 Rolle, Abr. Estoppel (B.) so Austin v. Ahearne, 61 N. Y.
p. 4, p. 877; Bac. Abr. Joint-Ten- 6, 17.

ants (H.); Co. Litt. 45 a., 197 a.

LEASES TO JOINT OWNERS.

87

§ 65. Actions by tenants in common to recover rent. By
the ancient common law of England ^^^ where land owned by ten-
ants m common was leased,, the lessors could recover arrears of
rent by an action of debt in which all were obliged to join.^^
This is possibly law where the rent is reserved on general terms.
But as the ordinary rule is that while it is always allowable and
usually advisable for all the tenants in common to join in an
action for the rent yet if the payment of the rent is reserved to
each of them separately each must bring a separate action. If
the leasing is for an entire rent and the lease fails to state that
it is reserved to each of the tenants lessors in proportion to his
share in the reversion all the tenants ought to join, and the sum
recovered is to be divided by the tenants in common according
to their respective shares.'^ But there are some authorities which
hold that where the rent is reserved in an entire sum it is within
the election of the several co-lessors whether they shall or shall
not unite in an action to recover the same.^^ And where there
has been a severance of the ownership of the rent, understood
and acted on alike by the parties, one tenant in common may

30a By the English cases, on a
lease by joint tenants reserving
the entire rent they may join in an
action to recover the rent. If there
he a separate reservation of rent
to each of them, each must bring
a separate action. In trespass or
an injury to the possession, ten-
ants in common must join. Por-
ter V. Bleiler, 17 Barb. (N. Y.)
149, 155. In Decker v. Livington,
15 Johns. (N. Y.) 482, it was said,
"two tenants making a lease of
their tenements for a term of
years, the rent being behind, shall
have an action of debt against the
lessee, and not divers actions, for
the action is in the personalty." In
Hill V. Gibbs, 5 Hill (N. Y.) 56,
the rule is laid down generally
that tenants in common must sue
separately when the action is in
the realty, and that they must join
when the action relates to per-
sonalty. Judge Bronson said, "the

action is not in the realty merely
because it has some relation to
land. Thus, debt for rent and
covenant on not repairing upon
a joint demise is a personal ac-
tion, and tenants in common must
join. So, too, they must join in
actions for trespass or nuisance
to the land," he adds, "the English
rule was they may, ours say they
must join."

31 Co. Litt. 198b, 316, 317.

32 Bryant v. Wells, 56 N. H. 152,
153; Powis v. Smith, 1 D. & R. 490.

5 B. & Aid. 850, 851, 24 R. R. 587.
See Harrison v. Barnby, 5 T. R.
246. 2 R. R. 584; Cutting v. Derby,
2 Black, 1075; Porter v. Bleiler,
17 Barb. (N. Y.) 149, 155.

33 Martin v. Crompe, 1 L. Ray.
340; Bradbume v. Botfield, 14 M.

6 W. 567; Last v. Dinn, 28 L. J.
Ex. 94; HunUey's Case, 3 Dyer,
326a.

88

LAW OF LANDLORD AND TENANT,

sue in his own name for what is due him without joining his co-
tenant as a party to the action.^* In the case of a joint demise
by two tenants in common without specifying to whom the rent
is reserved the rent follows the reversion and on the death of
one of them the reversion being split tlie share of the deceased
lessor goes to his heir who is thereafter entitled to the rent.^^
§ 66. Eifect of a lease by joint owners. A lease of property
by one of two joint owners, executed by one of them only, but
with the consent and at the request of the other, is a lease of
both.^^ Where all those who hold in joint tenancy make a lease
of the land which they thus hold and one of the tenants dies the
term still endures, though it was a lease at will, and the rent
inures to the survivors. The lessee if he shall continue in pos-
session after the death of one of two joint tenants may be sued
by the survivor for the whole rent thereafter accruing.^^ Other-

34 Wolsey V. Lasher, 35 App. Div.
108, 54 N. Y. Supp. 737; Sanborn
V. Randall, 62 N. H. 620.

A covenant to pay rent to sev-
eral lessors is a joint or a several
obligation, according to the inten-
tion of the parties. If a lessee
covenant with two or more lessors
jointly to pay to each a specified
share of the rent, the covenant is
several, as the interest of each
lessor is several, though the cove-
nant to pay is joint. Each lessor
may therefore sue for his propor-
tion of the rent without joining
the others. Gray v. Johnson, 14
N. H. 414, 418; Withers v. Bircham,
3 B. & C. 254; James v. Emery, 8
Taunt. 245.

30 Beer v. Beer, 12 C. B. 60, 81,
21 L. J. C. P. 124, 16 Jur. 923.

A tenant in common of a rever-
sion may maintain an action for
an injury to the reversion with-
out joining his co-tenant as a
plaintiff. So, too, he may bring an
action for the breach of a covenant
iu a lease running with the land
without joining his co-tenants
where the severance of the rever-

sion takes place after the demise.
Roberts v. Holland, 62 L. Q. Q. B.
621, (1893) 1 Q, B. 665, 5 R. 370,
41 W. R. 494. A lease by a widow
who is tenant of an estate in
dower does not bind the heirs who
are tenants in common with her.
It gives the lessee no right to the
use or possession of the land. The
heirs who are co-tenants with the
widow may ratify the lease and
render it a valid and binding lease
on them. The lease, however, is
not void, but is voidable merely.
Where one of the heirs is an in-
fant he cannot ratify it. Where
some of the tenants owning land
subject to the widow's dower ratify
her lease and the others take no
action and the lessee goes in pos-
session under the lease, an illegal
combination between those who
had ratified which shall result in
an injury to the lessee is action-
able. Martens v. O'Connor, 101
Wis. 18-21, 76 N. W. Rep. 774.

30 Wenger v. Raymond, 104 Pa.
St. 33, 36, 31 Pitts. L. J. 493.

37 Jackson v. Dunbar, 68 Miss.
288, 290, 10 So. Rep. 38.

LEASES TO JOINT OWNERS. 89

wise the survivor would lose the whole fruits and benefit of
the survivorship and no injury can come to the lessee as he
would have to pay the whole rent in any event.^^ In the case of
a tenancy at will where the lessors are joint tenants, either may
terminate the will without or even against the consent of the
other.^^ Where there is a lease by joint tenants from year to
year, either may, without the consent of the other and even
against his express wishes, give a notice to quit to the lessee. A
notice to quit signed by one of several joint tenants who are
lessors is the notice of all.*® If, however, a lease provides that
the lessors being joint tenants shall all give notice to quit, a no-
tice not signed by all is ineffectual to terminate the term. Thus
where a lease provides that the lessor or his heirs or executors
may give notice to quit under his or their respective hands and
seals, and the lessor dies appointing tliree executors by his will
all the executors must unite in the notice to quit and a notice
signed by only two of them is not sufficient.*^ One or two
joint tenants may demise his or their portion to another so as
to create the relation of landlord and tenant between them with
a right to distrain as to rent in arrears.*- This would be the
case where one joint tenant for the pajonent of an annual sum
places another in exclusive possession of the whole of the prem-
ises and retires from its possession. The parties would then be
estopped to deny they were landlord and tenant.*^

§ 67. The right of joint tenants to the rent. Where all the
joint tenants unite in a lease reserving rent to all any one of

38 Henstead's Case, 5 Coke, 10. that tenancy; the tenant has a

39 Co. Litt. 186; Whayman v. right, upon such a notice, to give
Chaplin, 3 Taunt. 120. up the whole, and, unless he comes

ioDoe d. Aslin v. Summersett, to a new arrangement with the

1 B. & Ad. 13&, 141, in which case other joint tenants, as to their

Lord Tenterden, C. J., said: shares he is compellable to do so."

"Upon a joint demise by joint ten- ■*! Right v. Cufhell, 5 Esp. 149,

ants, upon a tenancy from year to 5 East, 491, 499. If the lease does

year, the true character of the not require a notice by all execu-

tenancy is this, not that the tenant tors, a notice by one of two or

holds of each, the share of each more executors will be sufficient,

so long as he and each shall *2 Cowper v. Fletcher, 6 B. & S.

please, but that he holds the whole 464, 473, 34 L. J. Q. B. 187, 11

of all so long as he and all shall Jur. (N. S.) 780, 12 L. T. 420, 13

please; and as soon as any one of W. R. 739; Coke, Litt. 186a, Bac.

the joint tenants gives a notice to Abr. Leases (1), 5, p. 776.

quit, he effectually puts an end to *3 Pleadall's Case, 2 Leon. 259.

90 LAW OF LANDLORD AND TENANT.

them may collect the rent and his release will release all the
others.^* And a reservation of rent to one joint tenant only
enures to the benefit of all.*^ One joint tenant cannot sue sep-
arately for his share of the rent or for the rent which is due all
of them. He must join with him as parties plaintiff in any and
eveiy action regarding the property or its income all the joint
tenants/^ On the death of one or more joint tenants who are
lessors, the right of action to collect the rent is in the survivors.*^
On the death of one of two joint lessors, the survivor is the prop-
er party to sue to recover for a breach of a covenant in the lease.
Under such circumstances no right of action passes to the per-
sonal representative of the deceased lessor.** And where a
joint lease was executed by the deceased lessor as a guardian,
his ward, after attaining his majority, may join with the sur-
viving lessor to enforce a covenant made for his benefit.'*" Inas-
much as all the authorities hold that parceners whatever may be
their number, constitute but one heir and hold by unity of title
as well as by unity of interest, it follows that none of them can
sue for rent or for use and occupation or distrain for the same
without joining the others.^" Where one joint tenant receives
more than his share of the rents from a lessee of the lands he
is accountable in equity to his co-tenants for as much of the

44 Newman v. Keffer, 18 Fed. (N. Y.) 149; Cobb v. Kidd, 8 Fed.
Cases, No. 10,177; Robinson v. Rep. 695, 696. Contra, Sanborn
Hoffman, 1 M. & P. 474, 4 Ring. v. Randal], 62 N. H. 620. If after
562, 3 Car. & P. 234, 6 L. J. (0. S.) an action has been commenced by
C. P. 113, 29 R. R. 627. several joint tenants to recover

45 Sacheverel v. Frigate, 1 Vent. rent one dies, the action may be
161; Co. Litt. 47a. 192a, 214a. prosecuted by the survivors. Cobb

46 Dewey v. Lambier, 7 Cal. 347; v. Kidd, 8 Fed. Rep. 695, 696.
EllLs V. Culver, 2 Har. (Del.) 129; 47 .Jackson v. Dunbar, 68 Miss.
Frazier v. Spear, 2 Bibb (Ky.) 288, 10 So, Rep. 38; Bryan v.
385; Bullock v. Hayward, 10 Allen Averett, 21 Ga. 401, 402, 68 Am.
(Mass.) 460; Smoot v. Wathen, 8 Dec. 464.

Mo. 522; Pickering v. Pickering, 11 48 Salisbury v. Shirley, 66 Cal.

N. H. 141; Mobley v. Bruner, 59 Pa. 223, 226.

St. 481, 98 Am. Dec. 360; Bonoyan 49 Salisbury v. Shirley, 66 Cal.

V. Palmer, 5 Mod. 171; Decker y, 223, 225.

Livingston, 15 Johns. (N. Y.) 479; co Decharms v. Harwood, 4

Hill V. Gibbs, 5 Hill (N. Y.) 56; Maule & Sel. 400, 10 Bing. 526,

Sherman v. Ballou, 8 Cow. (N. Y.) 529, 3 L. J. C. P. 198; Stedman v.

304; Porter v. Bleiler, 17 Barb. Bates, 1 Ld. Rajin. 640.

LEASES TO JOINT OWNERS. 91

rents as he has collected which exceeds what he is entitled to.^^
Where rent has become due to several joint lessors an assignment
of the revereion by one of them does not alter the nature of
the bygone rent and hence the right of distress is lost.^^

§ 68. The liability of joint tenants for rent. "Where the
premises are leased to two or more tenants jointly all are both
severally and jointly liable according to the exact language of
the covenant to pay rent. Under a lease to two persons jointly,
both are liable for the rent though only one has occupied. The
occupation of one makes both liable on the joint and several
covenant to pay the rent.^^ For the enti-y of one of two or more
joint lessees under a lease which is signed by all at the date
which is designated in the lease for the beginning of the term
is the entry of all the lessees. All are bound thereafter to pay
the rent, or for use and occupation though some never enter
upon the premises.'** On the other hand, if two persons to whom
a lease is made as joint lessees enter, both are liable upon the
covenant to pay rent though only one of them has in effect exe-
cuted the lease.^^ Where the liability of joint lessees is both
joint and several, a judgment for rent or for use and occupa-
tion may be recovered against any one of them separately.^^ Or
a judgment may be recovered against them jointly and severally,
and execution issued against only one of them in the discretion
of the lessor. One of several joint lessees may show, when sued
on the joint obligation to pay rent, that the lessor has, for a
valuable consideration, released the joint and several liability
and has accepted in its place a separate obligation and promise
to pay rent for each joint lessee.^'' Among, or between joint
lessees it will be presumed that relations of a confidential char-
acter exist. They may be regarded as qiiasi trustees towards
each other so that no benefit can be acquired by any one of them
from the lessor under the lease which shall not enure to the bene-

61 Nelson's Heirs v. Clay's Heirs, 657, 665; Glen v. Dungey, 4 Exch.

1 J. J. Marsh. (Ky.) 138, 23 Am. 61.

Dec. 387. ss McLaughlin v. McGovem, 34

52Stavely v. Alcock. 16 Q. B. Barb. (N. Y.) 208.

636, 20 L. J. Q. B. 320, 15 Jur. 628. 56 Ding v. Kennedy, 7 Colo. App.

63 Kendall v. Carland, 5 Cush. 72, 41 Pac. Rep. 1112; Wolz v. San-

(Mass.) 74, 80. ford. 10 111. App. 136.

6* Goshorn v. Stewart, 15 W. Va. ? ' Walker v. Githens, 156 Pa. St.

178, 181, 27 Atl. Rep. 36.

92 LAW OF LANDLORD AND TENANT.

fit of his co-lessees. Thus, a renewal of a lease in which two or
more are jointly interested as lessees which is procured in the
name of one lessee only, but which was intended to be for the
benefit of all will enure to the benefit of all the joint lessees.^^
One of several lessees jointly and severally liable to pay rent
who is compelled to pay the whole rent which becomes due under
a covenant to pay rent has an action for contribution against
those who are jointly liable with him. This is equally true in
the case of a covenant by lessees jointly liable to repair the
premises. But one tenant in common of a house who expends
money on ordinary repairs, not being such as are necessary to
prevent the house from going to ruin, has no right of action
against a co-tenant for contribution.^^

§ 69. The liability for rent of co-partners in business. The
members of a firm which is a tenant under a lease are liable
jointly and severally on the covenant to pay rent and also for
use and occupation. A signature by the firm name subscribed
by one partner will be binding upon all upon the theory that
each partner is in law the agent of all. So, a lease signed by*
one partner individually as lessee and witnessed by all the others
who signed their names individually binds the firm.*^" But a
lease in writing under seal to several partners which is only
signed by one for himself and as an agent for the other partners
is not binding upon the others unless there is an agency also
under seal.®^ One who becomes a partner after the execution of
a lease by his co-partners becomes liable thereby individually
and jointly for the rent to the same extent as those who have
executed the lease. But this rule applies only where the lease
has actually become in some manner one of the partnership as-
sets.®^ A lease by one member of a firm owning real estate is
binding upon all where it is authorized or ratified by them. A
lease of real estate which is brought into a partnership business
and is used as partnership property made by one partner in his

68 Burrell v. Bull, 3 Sandf. Ch. eo Busman v. Ganster, 72 Pa. St.

(N. Y.) 15. 285.

BO Leigh V. Dickeson, 54 L. J. ei Snyder v. May, 19 Pa. St. 235,

Q. B. 18, 15 Q. B. D. 60, 52 L. T. 240.

790, 33 W. R. 538. 02 Guinzburg v. Claude, 28 Mo.

App. 258.

LEASES TO JOINT OWNERS. 93

own name to a third party will not inure to his individual bene-
fit. It will be for the benefit of the firm and he will be regarded
as a trustee for the firm to the extent of the rents received by
him.^^ Where there is a lease by partners and one of them dies
the other may sue for the rent as a survivor. This is the rule
where they sue on the covenant to pay rent. A surviving part-
ner, however, who sues for use and occupation taking place after
the death of the other partner may sue in his iudvidual name and
for his own benefit.®*

63 Moderwell v. Mullison, 21 Pa. «* Wheatley v. Boyd, 7 Ex. 20.
St. 257.

CHAPTER IV.
LEASES BY AGENTS.

5 70. The agent's authority to lease must be strictly pursued.

71. The apparent authority of the agent

72. Lease under seal made by an agent.

73. An agent's authority in writing under the statute of frauds.

74. The ratification of a lease executed by an agent without authority

from the principal.

75. The fraud and false representations by an agent.

76. The authority of an agent to accept possession on abandonment

by the tenant.

77. The power of an agent appointed to manage property.

78. "WTiere the agent renders himself personally liable.

79. Undisclosed principal where a lease is under seal.

§ 70. The agent's authority to lease must be strictly pursued.

An agent whether he has been authorized in writing or by parol
to lease the premises, must proceed strictly according to the
powers which have been conferred upon him by his principal,
and if he exceeds his authority his principal is not bound by
his acts.^ Thus an agent who has a general power to make leases
for his principal does not, by implication, possess the power to
grant leases of his principal's lands which shall contain particu-
lar or unusual covenants or which confer special and peculiar
privileges upon the tenant. So an agent who has merely the
power to lease for a term of years does not bind his principal to
give a renewal where, in making a lease for a term of years, he
inserts in the lease, without the consent of his principal, a clause
giving the tenant the right to a renewal.^ The authority vested
in an agent to make a lease for one year does not permit him to
bind his principal by a lease for a longer term. Nor will an

1 "An attorney either at law or or client, unless authority for such
in fact iias no authority either to purpose is expressly given." How-
make a lease, or to ratify or con- ard v. Carpenter, 11 Md. 259, 281.
firm an imperfect one, or to per- - Schumacher v. Pabst Brewing
feet an inchoate agreement for a Co., 78 Minn. 50, 80 N. W. Rep.
lease of property of his principal 838.

LEASES BY AGENTS. 95

agent who has power to lease a tract of land at a rent specified
by implication have power to lease a portion of the tract.^ An
agent who has the authority to lease his principal's land which
is vacant and unimproved cannot bind his principal by a clause
in the lease to build houses or to make improvements upon the
land.'* Even though the agency be created by an instrument
conferring very wide powers and discretion upon him, nothing
will be implied in favor of the agent, and against the principal.
Thus a power of attorney by which the attorney is to hold pos-
session of a farm providing that it is to be "the same as if it
were your owtq, I intend it will be" does not empower the at-
torney to lease it to a creditor and to apply a part of the rent
on his own debt.^ Some of the cases, however, construe the power
of an agent to lease with considerable more liberality Thus, a
general power to lease, to rent or to let conferred upon an agent
has been considered sufficient, not only to enable him to make a
new lease, but also to extend a lease which has expired.® Usually
a general agent of the landlord or a general manager of his
property has a more extensive power in relation to leasing his
principal's property than an agent whose sole duty it is to col-
lect rent. The power and authority of an agent to collect rent are
very limited. This matter is regulated by the general rules of
the law of agency. It has been held that an agent who has the
general and exclusive charge of the business of his principal may
have the power to modify the terms of existing leases. Thus, in
New York it has been held that a general agent has power to
modify the express terms of a lease which was executed by his
principal by agreeing that a tenant of premises which have been
destroyed by fire may occupy the premises rent free until re-
pairs have been made or until the premises have been restored
to a tenantable condition. The modification is valid and binding
on the principal though not made with his knowledge, as the
remaining in possession of the tenant is the consideration of the
agreement by the agent for under the New York statute the ten-
ant has the right to abandon the premises and the rent ceases.'^

3 Borderre v. Den, 106 Cal. 594, e Pittsburg Mfg. Co. v. Fidelity

600, 39 Pac. Rep. 94(3. Title & Trust Co., 207 Pa. St. 223,

■* Peddicord v. Berk, 74 Kan. 236, 56 Atl. Rep. 436.

86 Pac. Rep. 465. ■ Ireland t. Hyde, 69 N. Y. Supp,

c Ward V. Thrustin, 40 Ohio St. 8S9.
347.

96 LAW OF LANDLORD AND TENANT.

An agent who is empowered to attend to the repairs of premises
owned by his principal will not be permitted to exceed his au-
thority. Doubtless his authority will permit him to bind his
principal by contracts to furnish labor and material for the or-
dinarj^ repairs of the premises leaving it for the court to deter-
mine what shall constitute ordinary repairs. But he has little,
if any, power to bind his principal in other respects. Thus, for
example, his representation as to the safety or healthfulness of
the premises made to the tenant when the lease is executed are
not binding on the landlord. His power to bind his principal by
statements as to the condition of the premises is not as exten-
sive as that of an agent who is employed to rent the premises.*
§ 71. The apparent authority of the agent. A lessee of land
dealing with an agent who has an apparent authority to make
the lease, may rely upon that appearance of authority, and the
principal will be bound by the acts of the agent within the scope
of the apparent authority. But, the lessee who relies upon such
apparent authority to sustain a lease which has been made by
the agent must either show that the agent has done similar acts
in excess of his real authority which were subsequently ratified
by the principal or that the particular lease in question was
actually ratified by the principal either expressly or by impli-
cation. Generally speaking, an agent whom the landlord has
appointed merely for the purpose of collecting the rents of his
real estate cannot be regarded as having an implied power to
lease the premises. He is not a general agent but merely a
special agent for a single purpose. Of course, his actions in
making a lease may be ratified by his principal as would be the
ease where the agent collected the rent on a lease made by him,
and the principal, knowing of the making of the lease, accepted
and retained the rent. According to some authorities, the agent
whose sole power is to collect the rents may make a lease at will
which is binding on the landlord, for it is said that, having to
make a return of the rents to his principal, the latter might
suffer a loss if the agent were not by implication given the power
to lease the premises at will.® An agent whose duties are merely
the care and supervision of land, as for example, a steward or

« Daley v. Quick, 33 Pac. Rep. o Woodfalls' Landlord & Tenant,

859, 99 Cal. 179. C3; Tibbitts v. Moore, 19 N. H.

369.

LEASES BY AGENTS. C7

land atrent, cannot nsiially bind his principal either by a con-
tract to make a lease or by a lease itself.^" But in one case
it was held that the power vested in a steward to manage and
superintend a landed estate will authorize him to bind his prin-
cipal by an agreement to make the usual and customary leases
according to the nature and extent of the property.^^ But, it
has been held in England that a farm bailiff upon whom express
authority had been conferred to lease lands from year to year
upon the ordinary terms which were recognized in the neighbor-
hood, and to receive the rents accruing under such leases, has
not the implied authority from such circumstances to let the land
upon unusual terms unknown to the owner and to insert express
stipulations in the lease? without express authority to do so on
the part of his principal. ^^ So, also, a general agent among
whose duties is that of collecting rents, making repairs and at-
tending to the care of the premises belonging to a non-resident
landlord has no power to change the terms of existing leases by
discounting rents which are not due and by accepting for the
same less than is due."

§ 72. Lease under seal made by an agent. At the common
law where a lease executed by an agent is executed under seal,
or where a lease must be executed under seal and an agent exe-
cutes it, his authority to execute it must also be under seal.^*
On the other hand, the authority of the agent to make a parol

loColler V. Gardner, 21 Beav. (N. Car. Law) 218, 220; Hanford

151. . V. McNair, 9 Wend. (N. Y.) 54;

11 Peers v. Sneyd, 17 Beav. 151. Blood v. Goodrich., 9 Wend. (N.

12 Turner v. Hutchinson, 2 F. & Y.) 68; Cooper v. Rankin, 5 Binn.
F. 185. (Pa.) 612; .Gorden v. Buckley, 14

isHalladay v. Underwood, 90 S. & R. (Pa.) 331; Cain v. Head,

111. App. 130. 1 Coldw. (Tenn.) 163; Turbeville

14 As to the rule in the case of d. Darden v. Ryan, 1 Humph,

deeds generally, see Rowe V. Ware, (Tenn.) 113; Harrison v. Jack-

30 Ga. 278; Bragg v. Fesenden, 11 son, 7 T. R. 207; 3 Bacon's Abr.

111. 544; Maus v. Worthing, 4 111. tit. "Leases," 408. The only ex-

20, 27 (Breeze, J., dissenting) ; ception to this rule occurs in a

Rhodes v. Louthain, 8 Blackf. case where the agent or attorney

(Ind.) 413; Wheeler v. Nivins, 34 affixes the seal and signs the name

Me. 54; Banergee v. Hevey, 5 of the principal in the actual pres-

Mass. 11, 23; Shuetz v. Bailej', 40 ence of the latter. Maus v. War-

Me. 69, 75; Smith v. Perry, 29 N. thing, 4 111. 27.
J. L. 74; Kime v. Brooks. 9 Ired.

7

98 LAW OF LANDLORD AND TENANT.

lease which is to be executed by him for his principal or his au-
thority to make an agreement for a lease, which is to be executed
under seal by the principal, need not be in writing.^^ An agent
may be authorized by parol to make a lease which may be valid
without writing.^'^ And an agent may be authorized by parol,
to execute a written contract binding his principal to make a
lease for more than one year.^^ The common law rule which re-
quires the authority of an agent to execute an instrument under
seal to be evidenced by some writing itself under seal is admit-
tedly technical and the courts in modern times have sought
strenuously to relax it. No authority under seal was required to
execute a writing not under seal. And the reason of this is that
such writings not under seal, such as notes and the like are usual-
ly barred by statute unless they are sued on and enforced within
a comparatively short period. But deeds being usually evi-
dence of the title to real property and being capable of being
produced to enforce rights after some considerable lapse of time
when the conditions and circumstances under which they were
executed by the agent are incapable or at least difficult to be
proved are on an entirely different footing. In such cases it
is but reasonable in order to avoid forgery and fraud in the use
of deeds to require the person who relies upon the deed to show,
in a case where it is executed by an agent, by some writing of
equal solemnity and formality with the instrument he claims
under, that the agent was authorized to execute it.^^ And where
an agent has without authority under seal, executed a sealed in-
strument, the subsequent action of the principal in executing an-
other instrument under seal to take the place of the invalid in-
strument constitutes such a ratification of the latter as will vali-
date it from the time of ite execution,^^ and estop the principal
from asserting its invalidity. So, where an agent without any
authority under seal, executes a sealed instrument in the name
of his principal and, on the instrument being shown to the prin-

iB Brown V. Eaton, 21 Minn. 409; 15 So. Rep. 44; Curtis v. Blair, 26

Coles V. Trecothick, 9 Ves. Sr. 234, Miss. 309.

250. 18 Kime v. Brooks, 9 Ired. Law

i«M'Gunnagle v. Thornton, 10 (N. Car.) 218,221.

S. & R. (Pa.) 251, 253; McDowell J» Bragg v. Fesenden, 11 111. 544,

V. Simpson, 3 Watts (Pa.) 129. 545.

17 Lobdell V. Mason, 71 Miss. 936,

LEASES BY AGENTS. 99

cipal after his name and seal have been put upon it by the
aofent, the principal acknowledges it to be his act and deed, or
uses words which are equivalent to such acknowledgment, its
ratification will be implied and it will be valid ah initio.-'^

§ 73. The agent's authority in writing under the statute of
frauds. In some states under the statute of frauds, the agent's
authority to make a lease for more than one j'car, must be in
writing.'^ Where it is provided by statute that no lease of
lands to exceed one year can be executed by an agent unless he
is authorized in writing to do so, a lease for more than one year
which is executed by the agent of the lessor and which is deliv-
ered to the lessee is void if the agent was not authorized in writ-
ing to sign the lease. And the fact that the duplicate copy re-
tained by the principal was afterwards signed by him does not
validate the lease w^here it does not appear that this signing was
ever brought to the knowledge of the lessee.-^ In the absence of
statute, a lease for one year in writing and not under seal, may
be executed by an agent whose authority is created by parol.^^
Under the statute of frauds, a lease for a term of three years,
though signed by an agent, is not binding upon the lessee unless
the agent's authority from the lessor is in writing.^* So the
agent must be authorized in writing in order to bind his prin-
cipal in the adoption of the lease for more than one year.-^ The
performance of the conditions of an invalid lease by the lessee
wiU take the lease out of the statute of frauds. Thus a lessee
who has been in the possession of the premises and paid rent
for more than a year, cannot object that a lease in writing is in-
valid under the statute of frauds, or refuse to pay rent because
it was executed by an agent who was not authorized in writing

20 Rhode v. Louthain, 8 Blackf. App. 549; Hoover v. Pacific Oil

(Ind.) 413. Co., 41 Mo. App. 317.

2iCal. Civ. Code, § 1624, subd. 5; 24 Hoover v. Pacific Oil Co., 41

How. St. Mich., § 6179. Mo. App. 317; Lehman v. Nolting,

22 Ohesebrough v. Pingree, 72 56 Mo. App. 549; Chesebrough v.
Mich. 438, 445, 40 N. W. Rep. 747, Pingree, 72 Mich. 438, 40 N. W.
1 L. R. A. 529. See, also. Ham- Rep. 747. See, also, Borderre v.
mond V. "Winchester, 82 Ala. 470, 2 Den, 106 Cal. 594, 600, 39 Pac. Rep.
So. Rep. 892; Darity v. Darity 946.

(Tex.), 71 S. W. Rep. 950. 25 Sheo v. Seeling, 89 Mo. App.

23 Lehman v. Nolting, 56 Mo. 146.

100 LAW OF LANDLORD AND TENANT.

by the landlord to execute the lease. ^^ But it has also been held
that a lease made by an agent which is absolutely void under
the statute of frauds because the authority of the agent to make
the written lease is not in writing, is not good as an oral lease
for a year. If the statute expressly declares such lease to be
void, it cannot be valid for any portion of time however short.-^
§ 74. The ratification of a lease executed by an agent with-
out authority from the principal. Upon general principles of
the law of agency there can be no question that a lease which
has been executed by an agent in the name of his principal
which either exceeds the authority of the agent, or which the
agent had no authority to execute, may be ratified and subse-
quently confirmed by the principal so that it will become valid
and binding upon him. The principal may ratify and validate
the invalid action of the agent, either by express oral language,
by writing or by some act, such as receiving rent, which will
estop him from afterwards rejecting the lease.-^ A ratification
by the principal may be inferred from his acts and conduct as
well as from his express language. In order to constitute a rati-
fication by conduct, the acts and conduct which are relied upon
must be clearly proven to the satisfaction of the jury. No rati-
fication of the lease will be implied from weak or doubtful cir-
cumstances which are capable of a construction which is consis-
tent with a repudiation of the action of the agent. The action
of the principal in putting a tenant in possession and receiving
rent from him which agrees with the terms of the lease is a
ratification by the principal.^" The knowledge of the action of

26Tean v. Pline, 60 Mich. 385, Bank v. Mortley, 19 Wis. 62;

27 N. W. Rep. 557. Trout v. McDonald, 83 Pa. St. 144;

27 Borderre v. Den, 106 Cal. 594, Ducaii v. Hartman, 143 Pa. St.
600, 39 Pac. Rep. 946. 595, 22 Atl. Rep. 1099, 48 L. I. 441,

28 Irons V. Reyburn, 11 Ark. 378; re-affirmed, 149 P. St. 114, 24 Atl.
Borderre v. Den, 106 Cal. 594, 609, Rep. 190.

39 Pac. Rep. 946; Bragg v. Fessen- 29 Bless v. Jenkins, 129 Mo. 647,

den, 11 111. 544; Powell v. Gos- 31 S. W. Rep. 938. The failure of

som, 18 B. Mon. (Ky.) 179, 192; a married woman to notify one

Adams v. Power, 52 Miss. 828, 833 ; who leased her property from her

Anderson v. Connor, 87 N. Y. Supp. husband in the name of the hus-

449; Ovcrby v. Overby, 18 La. Ann. band, and without the knowledge

546; Baines v. Burbridge, 15 La. or consent of the married woman,

Ann. 628; Breithaupt v. Thurmond, of her ownership, does not estop

3 Rich. (S. C.) 216; Wisconsin her from disputing the validity of

LEASES BY AGENTS. 101

the agent in signing and executing the lease must be brought
home to the principal and when knowing exactly what the agent
has done in leasing the property he enjoys the benefits and fruits
of the agent's acts, he will not be permitted to repudiate his acts.
Under this rule it is unquestioned that the receipt of rent by
the principal under a lease which had been made by the agent
without the authority of the principal would constitute a rati-
fication of the lease. ^** And where the principal receives rent
after the execution of a lease by an agent without authority or
where the lease is invalid because not under seal, equity will
compel the principal to ratify the lease, and will order a seal
attached thereto and direct the principal to do anything eise
which will validate the lease. "^ Where the actions and eon-
duct of the principal are relied upon to constitute a ratification
of a lease made by an agent without authority, it must appear
that the principal was acting with a full knowledge of all the
material facts in the case. For the actions of the principal done
in complete ignorance of the conduct of the agent cannot be re-
garded in law as a ratification.^- Where an agent of a landlord
having power to rent for one year only, rents for two years, and
during the second year the principal received the rent agreed
upon, it is a question for the jury to determine whether the prin-
cipal ratified the letting by the agent. The jury might infer
from such evidence that he was a general agent for the renting
of the property. If being such, he was limited by instructions

the lease. The fact that the prop- Reid v. Hibbard, 6 "Wis. 175; Wis-

erty stood in the name of the true consin Bank v. Morley, 19 Wis. 62.
owner on the record is always ma- 3i Story on Agency, § 239.

terial. So it is not material, so far 32 Chapman v. Lee, 47 Ala. 143;

as the power of the wife is con- Mapp v. Phillips, 32 Ga. 72; Tid-

cerned to deny the validity of the rick v. Rice, 13 Iowa, 214, 221;

lease, that the lessee always paid Dickinson v. Conway, 12 Allen

his rent to the husband, and in do- (Mass.) 487; Hammond v. Han-

ing so always supposed he was the nin, 21 Mich. 374; Gulick v. Gro-

sole owner of the premises. Long ver, 33 N. J. Law, 463; Seymour

V. Poth, 73 N. Y. St. Rep. 251, 37 v. Wyckoff, 10 N. Y. 213; Meehan

N. Y. Supp. 670, 16 Misc. 85. v. Forrester, 52 N. Y. 277; Wright

soRoby V. Cossitt, 78 111. 638; v. Burbank, 64 Pa. St. 247; Will-

Haynes v. Seachrest, 13 Iowa, iams v. Storm, 6 Coldw. (Tenn.)

455; Ruggles v. "Washington Co., 203, 207; "Vincent v. Rather, 31

3 Mo. 496; Hastings v. Bangor Tex. 77.
House Proprietors, 18 Me. 436;

102 LAW OF LANDLORD AND TENANT,

to rent for one year, and in violation of his instructions, rented
for two years, slight evidence of ratification by the landlord
would be sufficient. Under such circumstances the principal is
responsible to the innocent third persons not having knowledge
of a limitation upon the power of an agent to lease the premises
for the act of the agent; providing he does not promptly re-
pudiate such acts before the tenant has entered.^^

§ 75. Fraud and false representations by an agent. The
question of the binding character upon a principal, of fraudu-
lent conduct and false representation by the agent in the leas-
ing of property has frequently been discussed. Unquestionably
a principal who is proved to have instructed his agent to mis-
represent the condition of the premises, or the rate of rent whic!i
he has received from them, or who at the time of the execution
of the lease, knows that his agent has been guilty of fraud or
falsehood in this respect, though not by his direction, will
be held responsible for his agent's acts. Thus, if an owner of
property, knowing that the premises were unsafe, uninhabitable
or objectionable on account of a nuisance existing in or near
them should employ an agent to lease the same who was ignorant
of these facts ; and the agent, being thus ignorant of these facts
represents the premises as being desirable and safe the principal
would be liable for the representation of his agent. So. where
the owner of a house who employed an agent to let it for him and
stated to the agent that it was in good condition and unobjec-
tionable in every respect, and the agent, relying on these state-
ments, rented the house which was objectionable because it was
located next door to a disorderly house, it was held that the
lease was not binding on the tenant because of the misrepresen-
tation made by the agent.^^

§ 76. The authority of an agent to accept possession on aban-
donment by the tenant. The tenant must prove that an agent
to wliom he may have delivered the keys of the premises had
authority as the agent of the landlord to accept them and thus
assent to a surrender. The agent's authority to assent to a sur-
render will not be inferred from authority in the agent to col-
lect the rent of the premises. Nor will the failure, neglect or

82 Reynolds v. Davison, 31 Md. 33 Fuller v. "Wilson, 3 Q. B. 58,

662, 688. 68; Bennett v. Judson, 21 N. Y.

238.

LEASES BY AGENTS. 103

refusal of the landlord to return a tey delivered to the agent by
the tenant on the abandonment of the premises by the latter
amount to a ratification of the acceptance by the acrent and
create a surrender by operation of law where the landlord does
nothing else conclusively indicating an intention on his part
to accept the keys in token of surrender.^* The power to
accept a new tenant in the case of a lease executed under seal for
a term which exceeds a year and to release the former tenant
by the acceptance of his surrender must be expressly conferred
and will not be implied. The mere fact that the agent has
general power to act for the landlord in the care of his prop-
erty does not necessarily confer on the agent the power to ac-
cept a surrender of the premises or to make a new lease to a
new tenant. Thus, an agent whose duties are to make leases,
to receive rents, to give receipts for the same and to allow for
the expenses of repairs made by tenants, possesses no implied
power to accept a Siurrender of a lease which is in writing and
which is under seal.^^ The surrender of a key to an agent of
this character, unless with the direct consent of the landlord,
or with his subsequent ratification, does not constitute a sur-
render by implication of law. But a general agent will have
his power to act for the landlord given a fairly reasonable
construction. An agreement bj^ him to pay the expenses which
a tenant might incur in moving if he would promptly move
from the premises on the expiration of his term is within the
scope of the power of a general agent who has power to lease,
to collect rent and to look after the premises generally.^®

§ 77. The power of an agent appointed to manage property.
Real estate agents who make it their business to let houses or
other real estate, are, if shown to be in possession of the keys
of the house, at least prima facie authorized to grant leases for
the premises upon such terms as they may see fit to make and
also to give the tenant possesion. But this presumption may be

34 Blake v. Dick, 15 Mont. 236, 35 Wallace v. Dinning, 11 Misc.
38 Pac. Rep. 1072; Thomas v. Nel- Rep. 117, 32 N. Y. Supp. 159; Wil-
son, 69 N. Y. 118; Baylis v. Pren- son v. Lester, 64 Barb. (N. Y.)
tice, 75 N. Y. 604; Ryan v. Jones, 431, 433.

20 N. Y. Supp. 842, 2 Misc. Rep. so Creighton v. Finlayson, 46

65; Barkley v. McCue, 55 N. Y. Neb. 457, 459, 64 N. W. 1103.
Supp. 608, 25 Misc. Rep. 738;
Barkley v. Holt, 84 N. Y. S. 957.

104 LAW OF LANDLORD AND TENANT.

rebutted by proof on the part of the landlord that the authority
of the agent was restricted by him. It is the duty of the
tenant, in dealing with the agent, to ascertain the limits and
character of the authority which the principal has delegated
to him. The existence and scope of the authority of the real
estate agent to let premises and to bind his principal is to be
determined in the same manner as the authority of any other sort
of agent. The court in determining the scope of his authority
will take into consideration the facts in the case, the usages
of the locality if there are any and particularly the conduct of
the principal in prior transactions with the agent. A written
authority "to act as our agent for our properties and to man-
age said properties" is very general and at the same time very
vague in its terms. The precise limit of a power to manage land
would depend largely upon the circumstances and conditions
of the land as they are shown in the evidence. On the one
hand the power to manage land would clearly not authorize an
agent to sell it. It is also clear that it would clearly authorize
him to make leases in the ordinary form and on the ordinary
terms. Construing this power it may safely be said that a power
to manage land implies authority in the agent to do all that had
been done prior to the creation of the power by the principal,
or by other persons with the express or implied assent or con-
sent of the principal except to sell the land or to mortgage it.
In other words it is implied that the agent may do what is
usual and customary to do with property of the kind in that
locality. Under such a power the agent could lease farmland
for terms and on conditions usual for farms in the vicinity
where the land is located. And an agent having such power
could unquestionably lease dwelling or business property, lo-
cated in a town or city, upon such terms and conditions as are
customary in the town or city where the property is located.
So, for illustration, if there were an open mine on the land the
management of it might include the working or leasing of the
open mine by the agent. And on the other hand the opening of
a mine where none had been opened before, or the making of a
lease conferring the power to open mines, would be a doubtful
act unless perhaps the land were located in a mining country and
its use for other purposes is thereby necessarily limited. But
an agent with power to manage property, or with a general

LEASES BY AGENTS. 105

power for a limited period, has no power thereby to make a
lease for a long term which shall extend beyond the period
during which he has a right to act. Thus, an agent to manage
land appointed for one year only cannot grant a lease for fif-
teen years of the sole right to quarry, take or sell stone or coal
from the land which is already improved and is valuable min-
eral land. And the consideration in this case would be that
this was not a grant of an annual profit which, when taken out
of the land, would be replaced by the operation of nature, but
a permanent diminution of the body and value of the land itself
which would be similar to the opening of a mine where none
had been opened before and hence would be clearly not within
the power of the agent appointed for the ordinary manage-
ment of property.^' An agent who is instructed or who has an
agent's power to lease to a responsible tenant is answerable in
damages to his landlord if he fails to exercise reasonable dili-
gence in ascertaining the responsibility of the tenant. He must
make the same inquiry regarding the tenant as a prudent man
would make in carrying on his own affairs.^^ So, an agent
authorized to let premises must act in good faith to his prin-
cipal and he cannot let the premises to himself without the
consent of his principal given after a full disclosure of all the
circumstances by the agent to the principal."'

§ 78. Where the agent renders himself personally liable. In
order to escape personal liability, the agent who executes the
lease should always sign the name of his principal by himself
as agent, thus, ''John Doe by Richard Rowe his agent" or "his
attorney" as the case may be.*" For in the case of a lea.se
or other writing which is signed "John Doe agent for Richard

37 Duncan v. Hartman, 143 Pa. S.) 15o; Green v. Keppe, 18 C. B.
St. 595, 606, 22 Atl. Rep. 1099, 24 149; Deslandes v. Gregory, 2 E. &
Am. St. Rep. 570; Id., 149 Pa. St. E. 602; Clayton v. Souther, 1 Exch.
114, 24 Atl. Rep. 190. 717; Parker v. Winslow, 7 El. &

38 Hayes v. Tindall, 1 B. & S. B. 492. A person who describes
296; Hemmenway v. Hemmenway, himself in an agreement to make
5 Pick. (Mass.) 389; Moore v. a lease as making it on behalf of
Gholson, 34 Miss. 372; Anthony v. another will be personally liable
Smith, 9 Humph. (Tenn.) 508. if in subsequent part of it he prom-

39 Whichcote v. Lawrence, 3 ises that he will himself execute it.
Ves. 746. Norton v. Herron, 1 Car. & P. 648,

40 Cooke V. Wilson, 1 C. B. (N. R. & M. 229, 28 R. R. 797.

106 LAW OF LANDLORD AND TENANT.

Rowe" or '"for John Doe, Richard Rowe agent" all the words
that follow after the name of the agent are treated as mere
descriptio personae, and the lease or other writing will be bind-
ing on the agent individually upon the ground that he has not
disclosed the name of his principal.*^ But the principal and
not the agent will be bound if it appear from the language of
the lease itself that it was signed by the agent for the prin-
cipal and not for the agent himself.*^^ A person who, on being
sued for rent of premises leased by him in his own name, claims
that he was the agent of another in making the lease, will have
the burden on him to convince the court of that fact.*^ Thus
an authorized agent who executes a lease under seal in which
he states he is the agent of a disclosed and known principal,
and who assumes to contract for such principal only and not for
liimself personally or individually is not bound by the lease per-
sonally or individually though he has signed his individual
name.*^ So also, a lease which reads "We have leased to" a
lessee named, and which is signed "L. and Son, agents for W."
is the lease of the principal, and not of the agents.** And it has
been held that the mere fact alone, that an agent executes a
lease in his own name does not make him individually liable
thereon, unless the language of the lease shows a clear intent
that he shall be liable individually." The fact that a lease
is executed by an agent in his own name, does not alone neces-
sarily render it invalid.** It is binding on the lessee who is
estopped to show that the lessor, though styling himself an

<xCompton v. Cassada, 32 Ga. (Ky.) 237; Hall v. Woods, 10 N.

428; Fisks v. Eldredge, 12 Gray H. 237.

(Mass.) 474; Fowler v. Atkinson, 42 shakel v. Hennessey, 57 111.

6 Minn. 578; Robertson v. BanlvS, App. 332.

9 Miss. 666; McColgan v. Katz, 29 43 whitford v. Laidlaw, 94 N. Y.

Misc. Rep. 136, 60 N. Y. Supp. 291; 145, 149; Kiersted, V. O. & A. R.

Bellas V. Hays, 5 S. & R. (Pa.) R. Co., 69 N. Y. 343, 345, 25 Am.

427, 436. 438; Pryer v. Coulter, 1 Rep. 199.

Bailey Law (S. Car.) 517, 520; 44 Duncklee v. Webber, 151 Mass.

Kleckner v. Klapp, 2 Watts & S. 408, 24 N. E. Rep. 1082.

44; Robertson v. Pope, 1 Rich. Law *'> Frambach v. Frank, 33 Colo.

(S. Car.) 501; Comb's Case, 9 Rep. 529, 81 Pac. Rep. 247.

76; White v. Cuyler, 6 T. R. 17C; 4o Murray v. Armstrong, 11 Mo

Co. Lltt. 48c. 209; Potter v. Bassett, 35 Mo,

4iaMagill v. Hinsdale, 6 Conn. App. 417.
464, 469; Cook v. Sanford, 3 Dana

LEASES BY AGENTS. 107

agent, had no title to the premises.*'^ These niles apply also to
a lease which is signed by an agent acting for an undisclosed
lessee. Thus a lease signed by a person in the capacity of a
lessee in his individual name, is binding on him individually,
though it may be recited in the lease that he is acting for an-
other. The lease is his individual lease and he and not his
principal is liable on the covenant to pay the rent though the
principal may have had the use and occupation during the term.
The covenants in such a lease can be enforced only by or
against the person who actually covenants though in fact he
covenants for another's benefit and this fact is known to the
lessor. Nor can he escape individual liability where he signs as
an individual merely by showing he was authorized to sign the
lease as an agent and that he intended to do so as an agent and
not as a principal. For the intention of the parties under such
circumstances is a question of fact and the presumption is that
it was intended to be binding on the agent as an individual
unless an express ratification by the principal is proved.*^ But,
while parol evidence is not admissible to exonerate the agent
of an undisclosed principal from his liability for rent on a lease
where the liability of his principal on the covenants does not
appear upon the face of the lease** such evidence is received to
charge the principal upon a lease and to enable him to sue or
to be sued thereon.^" A tenant who has enjoyed the use and
occupation of the premises, cannot defend in an action for the
rent by showing that the lease was not signed by the landlord
as the principal. Thus in an action against the tenant upon
notes given for rent the defendant is estopped to show that the
lease was not signed by the real owner, where the tenant had in
fact signed the lease, and the real owner's agent had signed
his name individually in place of that of the owner." So that a
person who styles himself in the lease "sole lessor," and signs
the lease with his own name, followed by the word agent is, so

*7 Bedford v. Kelly, 61 Pa. St. <» Higgins v. Senior, 8 Mee. &

491. Wei. 844.

48 Kiersted v. O. & A. R. R. Co., so Hlggins v. Senior, 8 Mee. &

69 N. Y. 343, 1 Hun (N. Y.) 151, Wei. 844; Humphrey v. Dale, 7 E.

55 How. Prac. 51; Whitford v. & B. 266.

Laidler, 25 Hun (N. Y.) 136, 140. si Lagerfelt v. McKie, 100 Ala.

430, 14 So. Rep. 281.

108 LAW OF LANDLORD AND TENANT.

far as .the lessee is concerned, the landlord and he alone can
recover rent and distrain for the non-payment therefor.^^ And
generally an agent who has the full management of his prin-
cipal's real estate with the power to rent it, may maintain an
action for the possession of the premises where a tenant to
whom the agent has leased it, fails to pay the rent.^^ A prin-
cipal may ratify a lease which was executed by his agent as a
lessor in such manner as to bind the agent only. After the prin-
cipal has I'atified the lease, he may sue upon any covenant •"'*
contained in the lease signed by his agent. A lease executed by
the agent in which he exceeds the authority conferred upon him
by the principal without the knowledge of the party with whom
he is contracting though it may not bind the principal, is bind-
ing upon the agent. But when an agent acts in good faith and
discloses to the other contracting party the extent of his real
authority the lease will not be obligatory upon the agent in
case it shall turn out that he has exceeded his authority.^^ For
if the party contracting with him actually knows the extent of
his authority and accepts a lease from him which is in excess of
his authority, he must take the consequences.-''^

§ 79. Undisclosed principal where a lease is under seal. The
principal cannot maintain an action for rent on a covenant in
a lease under seal which is executed by the agent only under the
agent's seal and which does not disclose the fact that the prin-
cipal is a party to it. An action upon such a sealed instrument
must be brought by a party to it and can be brought by no
other person. The agent who executes a lease under his own
name and seal is alone responsible for he and not his principal
has entered into the covenants and inasmuch as he alone can be
held liable for the performance of these covenants it follows
that he alone can enforce the obligations which are incumbent
on the other party. Where the agent of the owner executes a
lease under the name and seal of himself and not of his prin-

f.2 Seyfert v. Bean, 83 Pa. St. P. C. 547; Fenn v. Harrison, 3 T.

450, 34 L. I. 213. R. 758.

■'^- Hinckley v. Guyon, 172 Mass. (".g Sinclair v. Jackson, 8 Cow.

412, 52 N. E. Rep. 523. (N. Y.) 543; Galewski v. Appel-

M Brooks V. Cook (Ala.), 38 So. baum, 32 Misc. Rep. 203, 65 N. Y.

Rep. 641. Supp. 694,

65 Hamilton v. Clanricard, 5 Bro..

LEASES BY AGENTS. 109

cipal he and not the owner is the proper person to bring an
action for the rent.'^^ The executor of an e.'itate cannot sue on
a lease executed under seal by an agent in the agent's name
as lessor where the lease does not show who was the principal.'*
The contrary rule is recognized where there is a written lease
not under seal. It may then be shown by parol that the prin-
cipal and not the agent is the real party in interest and the un-
disclosed principal may sue as landlord to recover the rent.^®
But the fact that a lease is not required to be under seal does
not always permit a lease actually under seal to be regarded as
a simple contract and allow an undisclosed principal to sue
thereon. Under some circumstances a seal may be treated as
surplusage. Thus if it appear on the face of the sealed instru-
ment itself that the lease was actually made on behalf of the
principal and from parol evidence that he has derived a benefit
from it, he may sue and be sued on it, though it has been signed
only by the agent in his own name. The mere fact that an agent
signs a sealed lease as agent not mentioning the name of the
principal either in the signature or in any part of the lease
is not enough alone to admit parol evidence of the existence
of the principal or to permit the principal to sue thereon.®*'

sTSchaeffer v. Henkel, 75 N. Y, 153; Brooks v. Cook (Ala.), 81

378, 381, 7 Abb. N. C. 1; Briggs v. Pac. Rep. 247.

Partridge, 64 N. Y. 357. eo Manett v. Simpson, 61 Hun,

58 McColgan v. Katz, 60 N. Y. 620, 15 N. Y. Supp. 448. See Hays

Supp. 291, 29 Misc. Rep. 136. T. Moody, 2 N, Y. Supp. 385;

68 Bryant v. Wells, 56 N. H. 152, Hardy v. Williams, 31 N. Car. 177.

CHAPTER V.
THE CHARACTER OF THE PROPERTY WHICH MAY BE LEASED.

S 80. What may be leased.

81. A lease of land held adversely.

82. Leases of public land.

83. The lease of land or houses with chattels to be used therewith.

84. Lease of surplus waters of canaLs.

85. Leases by a tenant in dower or curtesy.

86. Agricultural leases in New York.

87. The power to lease a homestead.

83. The lease of a portion of a homestead.

89. The mode of the execution of a lease of a homestead.

§ 80. What may be leased. At the common law not only
land itself but all chattels and heriditaments, corporeal or in-
corporeal, might be the subject of a lease. Thus, an advowson^
might be leased. So, also, corrodies,^ estovers,^ ferries,* fish-
eries,° offices, franchises,*^ rights to tolls, '^ rights of common,^
rights of way,^ and rights of herbage,^" may be the subject of a
lease at common law. So, a stall in a market may be leased.^^ So,
also, there may be a lease of the right to take herbage, timber
or minerals from the land ;^- of water power,^^ and of the priv-
ilege of putting up advertising sig-ns upon a wall,^* all of which

•1 Anonymous, 3 Dyer, 323, b. pi. s Luney v. Brown, Lutch. 99.

30. » Newmarch v. Brandling, 3

2 Bacon's Abr. tit. Leases (A). Swanst, 99; Osborn v. Wise, 7 C.

sBro. Abr. tit. Leases, 40; Ba- & P. 761, 764.

con's Abr. tit. Leases (A) ; 1 Piatt i" Hill v. Barry, Hayes & Jo,

on Leases, 24. 688.

4 Peter v. Kendal, 6 B. & C. 703, n Washington Market Co. v.

711; Hansen v. Kirtley, 11 Iowa, Hoffman, 101 U. S. 112, 25 L. Ed.

565. 782.

6 Duke of Somerset v. Fogwell, 12 Maring v. Ward, 50 N. Car.
5 B. & C. 875, 884; Eastham v. An- 272, 275.

derson, 119 Mass. 526, 530; Water- i3 Channel v. Merrifleld, 206 111.

town v. White, 13 Mass. 477. 278, 69 N. E. Rep. 32.

« 2 Inst. 221, 400. n Landau v. O. J. Gude Co., 84

7 Harris v. Morricc, 10 M. & W. N. Y. Supp. 672.
260.

CHARACTER OF PROPERTY WHICH MAY BE LEASED. Ill

are distinct from a lease of tlie land itself and do not pass any
interest in the land except to occupy it temporarily within the
limits of the authority expressly conferred.

§ 81. A lease of land held adversely. At the common law an
actual or constructive possession of the land by the lessor is
always required as the basis of a lease. Hence, it follows that
a lease in presenti creating a right to an immediate possession in
the lessee, executed and delivered while the premises demised
are in the adverse possession of a third person is absolutely
void.^° So far as the validity of the lease is concerned it does
not matter whether the adverse possession has or has not ripened
into a title, or whether the lessor knew of the adverse posses-
sion or not.^* In some cases by statute it is provided that prop-
erty held adversely may be transferred. Such a statute vali-
dates a lease of property in the adverse possession of another
than the lessor.^' A lease by a person against whom property
is held adversely to the person who claims title against him is
valid. The execution of the lease puts an end to the adverse
possession because by it the occupant admits its ownership to be
in the lessor which he will be subsequently estopped to deny.^^
But the rule that land held adversely cannot be the subject of a
valid lease at the common law does not apply to the case of a
lease which is to take effect as soon as another lease which is
then in existence shall terminate. The rule does not apply to
leases in reversion. The possession of the tenants is then not
adverse to the landlord. During the possession of the first ten-
ant the lessee under the lease in reversion is the owner of an
interesse termini which vests in possession at the expiration of
the earlier lease. This lease may be granted with or without a
deed.^" Unless the common law rule is superseded by a statute
the only mode by which one whose land is held adversely may
lease it is by the execution of a lease and the delivery of it in
escrow to a third person with a power of attorney to make an

15 Iseham v. Morrice, Cro. Car. 623, 16 Pac. Rep. 5011, 5 Am. St.
109. Rep. 479.

16 Sohier v. Coffin, 101 Mass. 179, is Abbey, etc., Ass'n v. Welland,
183. See Warner v. Bull, 13 Met. 48 Cal. 614.

(Mass.) 1. 19 Winter v. Loveday, 2 Salk.

17 Lewis V. Brandle, 107 Mich. 537; Clarges v. Funucan, 2 Doug.
7, 9; Rice v. Whitmore, 74 Cal. 619, 565, 568; Smith v. Day, 2 M. & W.

684, 699.

112 LAW OF LANDLORD AND TENANT.

entry upon the land and to deliver the lease to the lessee after
the entry and while in actual possession. The common law
authority regulating this method of procedure will be found in
the notes.-" A lease for years executed by an heir after the
death of his ancestor but before his own actual entry on the
land which is required to vest him with the possession at the
common law is valid. The law presumes that he is in posses-
sion the instant the ancestor dies. If, however, a stranger to
the title actually enters before the heir takes possession and
sets up an adverse possession to the heir, the lease of the heir
will be void at common law.-^

§ 82. Leases of public land. Vacant or unappropriated pub-
lic land which is owned by the state or the United States and
which is subject to pre-emption by settlers cannot be leased in
the absence of a statute permitting it.^- In some States the
leasing of public land by the state or the county is permitted
by statute. A lease which is contrary to the statute is invalid
and passes no title to the lessee. The invalidity of the lease is
absolute and beyond the effect of subsequent curative statutes."
The statutory provisions regulating the leasing of public land
have for their object either the prohibition of the making of
leases by the public authorities or the prohibition of the making
of leases by the claimants of the land. In the absence of an ex-
press statutory prohibition a lease of public land which is
executed by a claimant to it before his entry has been per-
fected by him, is valid. If the title has been perfected in the
claimant and he has occupied the land he will unquestionably
have the same right to lease it as any other owner,-* but if it
appears to be the intent of the parties to the lease that the lessee
of the claimant shall enter upon the land and occupy it under
the lease before the title of the claimant has been confirmed or
perfected according to law it is very doubtful if the lease
would be obligatory on the claimant who subsequently enters

20 4 Bacon's Abr. tit. Leases (H) 22 Turner v. Ferguson, 33 Tex.
4; Co. Litt. 48&; Sharp v. Sharp, 505, 508, 509.

Cro. Eliz. 483; Stephens v. Eliot, 23 Sexton v. Board of Sup'rs of

id. 484; Jennings v. Bragg, id. 447; Coahoma, 86 Miss. 380, 38 So. Rep.

Davis V. Bridges, 2 Roll's Abr. 25. 636.

21 Comyn's Digest, tit. Seizin 24 Tiernan v. Miller, 69 Neb. 764,
(A), Sheppard's Touchstone, 269. 96 N. W. Rep. 661.

CHARACTER OF PROPERTY WHICH MAY BE LEASED. IIS

and attempts to repudiate the lease.^' Where a lease by a
patentee of public land who has entered upon it is valid, his
lessee has the same rights during the term to the possession and
enjoyment of the land as has any other tenant.-^

§ 83. The lease of land or houses with chattels to be used
therewith. In England the validity of leases of chattels is ad-
mitted. Thus a lease of a dwelling house and the furniture or
of a mill and the machinery in it is valid. During the term for
which chattels are leased the tenant has an interest in them as
will deprive the owner or landlord of his possession of them.
The relation of the landlord to the chattels is precisely the same
as the relation of the landlord of the land to the demised laud.
By the execution of the lease for a term the landlord is pre-
vented from bringing an action against a third party for any
injury to the cliattels during the term which does not amount ta
a permanent destruction of them. This rule has been applied
to leases of furnished houses. Thus, wdiere the landlord of a.
house demises it furnished to a tenant, and the furniture of the
house belonging to the landlord but in the actual possession
of the tenant is taken from the house on an execution against
the tenant, the landlord cannot recover in trespass for th^-
goods against the sheriff though the sheriff knew that the
landlord owned the furniture. For in this case the injury is not
to the landlord but to the tenant by depriving him of the use
of the furniture.^^ And the tenant may therefore sue. Nor can
a landlord under such circumstances where the chattels which
he has leased to a tenant are taken by a third person maintaiu
an action of trover or conversion to recover the chattels for the
right to the possession of the chattels continues in the tenant
during the term, and the only action which the landlord may
maintain during the term in regard to the chattels is an action
for the destruction or their substantial and permanent impair-
ment.^®

25 Orrell v. Bay Mfg. Co. (Miss. affords an answer to it. If, in-

App., 1906), 40 So. Rep. 429. stead of the household goods, the

28 Tiernan v. Miller & Leith, 69 goods here taken had been ma-
Neb. 764, 96 N. Wj Rep. 661. chines used in manufacture which

27 Ward v. Macauley, 17 R. 4S0. had been leased to a tenant, no

28 Gordon v. Harper, 7 T. R. 9. doubt could have been made but
In this case the court said: "The that the sheriff might have seized
very statement of the proposition them under an execution against.

114

LAW OF LANDLORD AND TENANT.

One who leases a farm together with the live stock, farm-
ing tools, and other articles to be used therewith and binds him-
self to return these articles of personal property or others of
equal value at the end of the term, acquires thereby no absolute
title to the personal property. His creditors have no claim to
these articles of personal property as against the landlord,
though the tenant may use the personal property during the
term and may also sell it providing he shall return property
of equal value at the end of the term. Under these circum-
stances, it will be necessary at the expiration of the term,
whether by lapse of time or otherwise, for the landlord or the
tenant to determine by an agreement between them, or by some
proceeding of an equitable nature, who owns the personal prop-
erty then on the farm. On the other hand, an agreement as to
the ownership of such property may be implied from the lan-

the tenant, and the creditor would
have been entitled to the bene-
ficial use of the property during
the term; the difference of the
goods, then, cannot vary the law.
The cases which have been put at
the bar do not apply; the one on
which the greatest stress was laid
was that of a tenant for years of
land whereon timber is cut down,
in which case it was truly said,
that the owner of the inheritance
might maintain trover for such
timber, notwithstanding the lease.
But it must be remembered that
the only right of the tenant is to
the shade of the trees when grow-
ing, and by the very act of felling
it, his right is absolutely deter-
mined; and even then the property
does not vest in his immediate
landlord, for if he has only an es-
tate for life, it will go over to the
owner of the inheritance. Here,
however, the tenant's right of pos-
session during the term cannot be
divested by any wrongful act, nor
can it thereby be revested in the
landlord. I forbear to deliver any

opinion as to what remedy the
landlord has in this case, not being
at present so called upon to do;
but it is clear that he cannot main-
tain trover." Ashurst, J., said:
"I have always understood the rule
of law to be, that in order to main-
tain trover, the plaintiff must have
a right of property in the thing
and a right of possession, and that
unless both these rights concur
the action will not lie. Now, here
it is admitted that the tenant had
the right of possession during the
continuance of his term, and con-
sequently one of the requisites is
wanting to the landlord's right of
action. It is true that in the pres-
ent case it is not probable that the
furniture can be of any use to any
other than the actual tenant of
the premises; but supposing the
things leased had been manufac-
turing engines, there is no reason
why a creditor seizing them under
an execution should not avail him-
self of the beneficial use of them
during the term."

CHARACTER OF PROPERTY WHICH MAY BE LEASED. 115

guage of the lease, or the conduct of the parties. If, for example,
the landlord attaches the stock and farming implements on the
farm as the tenant's property when the lease is forfeited and
a trustee of the tenant.' or the tenant himself, or his creditors
sue the landlord for conversion it may reasonably be implied
that the parties had agreed that the personal property belonged
to the tenant.-' Where the lessor delivers to the lessee certain
movable personal property, as stock, feed or utensils on a farm,
which are to be used by the lessee in connection with his occu-
pation of the leased premises, and for the benefit of the lessee,
with a proviso that the personal property is to be returned at
the end of the term a bailment or lease of the personal property
is created and not a sale. The right of the lessee to the pos-
session of the personal property during the term is paramount
to the right of the lessor and, a fortiori to the right of an at-
taching creditor of the lessor. The property cannot legally be
taken out of his possession as his right thereto is perfect and
absolute but only for the term.^° One who hires a furnished
house must determine for himself what articles of furniture
he shall claim as within the lease. It is his duty when the
lease is executed to make a personal examination of the prem-
ises in order to ascertain what furniture is contained therein,
and, in the absence of an agreement to the contrary, it will be
presumed that by the lease of a house together with the fur-
niture therein the tenant takes only the furniture that is ac-
tually contained in the house at the execution of the lease. A
lease of a house with the furniture therein raises no implied
covenant on the part of the landlord that the house is completely
furnished. Nor can the tenant prove by parol evidence that
the landlord orally promises to supply any deficiency in the
furniture.^^

29 Wilson V. Griswold, 79 Conn. supply all deficiencies in the fur-
18, 66 Atl. Rep. 783. niture was rejected. The tenant

30 Smith V. Niles, 20 Vt. 315, 320, never went into possession, but
49 Am. Dec. 782. See note 1 Dyer, sued to have the lease cancelled
767. for fraud or reformed on the

31 Wilson V. Deen, 74 N. Y. 531. ground of mistake, and the court
In this case an offer of evidence held that he was entitled to no re-
by the tenant that the landlord lief, no fraud or mistake being
orally promised at the time of the shown.

execution of a written lease to

116 LAW OP LANDLORD AND TENANT.

§ 84, Lease of surplus waters of canals. In many of the
states it is by statute provided that a private corporation or the
State itself controlling and operating a canal may lease the use
of the surplus water which accumulates in, and which is not
required for the operation and maintenance of the canals. Where
a lease of this sort is made the lessor reserving the right to
resume the possession of the water when it is needed for naviga-
tion, the lessee takes the lease subject to the implied right of
the State to discontinue its canals whenever the legislature
deems it expedient to do so.^- So generally even though by
express reservation of this sort may be inserted in the lease, the
lease so-called is in law a mere license to use the surplus water,
and hence without any obligation on the part of the State to
create or to maintain a surplus of water. The abandonment of
the canal as a canal imposes no liability for damages on the
State for the agreement is a license and it is hence revocable,
unless an express provision be inserted to the contrary.^^ For
canals are authorized, constructed and maintained by the State
for pblic purposes only and as an aid to the farming and mer-
cantile classes of the community in forwarding heavy freight
cheaply from one part of the state to another. They are not
primarily designed to afford cheap water power to be leased
or sold for use by private persons or corporations. Hence the
latter use is subordinate to the general public use for traffic-,
and the right to this private use may be terminated by the
State whenever, in the exercise of its discretion, it abandons
or relinquishes the primary and public use.^*

32 Fox V. City of Cincinnati, 104 U. S. 743, 26 Law Ed. 928; Fish-
U. S, 743, 26 Law ed. 928; Wa- back v. Woodruff, 51 Ind. 102;
bash, etc.. Canal Trustees v. Butt, Hoagland v. New Yorlt, C. & St.
2.5 Ind. 49; Armstrong v. Pennsyl- L. Ry. Co., Ill Ind. 443, 13 N, E.
vania R. Co., 38 N. J. Law, 1; Hop- Rep. 472, affirming, 111 Ind. 443,
poclt V. United New .Jersey R., etc., 12 N. E. Rep. 80; Hubbard v. City
Co., 27 N. J. Eq. 286; Bucliingliam of Toledo, 21 Ohio St. 379; Com-
V. Smith, 10 Ohio, 288; Cooper v, monwealth v. Pennsylvania R. Co.,
Williams, 4 Ohio, 253, 22 Am. Dec. 51 Pa. St, 351,

745, 5 Ohio, 391, 24 Am. Dec. 299; 34 Little Miami Elev. Co. v. City

Kankauna Water Power Co. v. of Cincinnati, 30 Ohio St. 629,

Green Bay, etc., Canal Co., 142 U. where an abandoned canal was by

S. 254, 12 S. Ct. 173, 35 L. Ed. a municipal corporation converted

1004. into a highway. A statute au-

33 Fox V. City of Cincinnati, 104 thorizing payment for the damage

CIIAUACTER OF PROPERTY WHICH MAY BE LEASED. 117

If the lease of surplus water expressly i)enuits a resumption
of the water whenever in the opinion of the State officials the
lease shall cease to be of advantage to the State, no reason need
be given for the action of the officials ^^ in resuming the use of
the water nor is the lessee entitled to compensation or damages.
And where a statute provides that every lease of surplus canal
waters shall contain a reservation to the lessor of the privilege
of resuming the use of such water wherever it is necessary
to do so an agreement by State officials with the lessee, that when
he is deprived of the use of the water under this reservation the
State shall compensate him for his permanent erection of mills
or the like is invalid as a contract tending to retard or prevent
the proper performance of official duty.^® Hence under such a
lease a lessee who builds dams, mills or factories cannot re-
cover the value of the same when the lease is unexpectedly ter-
minated by the State. Successive lessees of the power to be
derived from surplus water of a canal not required for the use
and operation of the canal, must, in case the surplus becomes
inadequate to supply all of them sufficiently, be supplied in the
order of the execution of their leases.^" in point of priority in
time according to the dates on which their respective leases were
executed.^^-

which has been caused by the ed. 917. If, however, a company-
state resuming leased surplus owning a canal has been holding
water of a canal does not apply the canal out as a source of
to a lease permitting a revocation water supply for power and ex-
or resumption without payment of pensive manufacturing establish-
damages. Ex parte Miller, 2 Hill ments have been erected along the
(N. Y.) 418. banks of the canal in reliance on

35 Ex parte Miller, 2 Hill (N. Y.) obtaining power, the company, in

418; Mattoon v. Munroe, 21 Hun equity, may be compelled to lease

(N. Y.) 474. its surplus water, if it be reason-

S6 State V. Board of Public ably within its power to do so.

Works, 42 Ohio St. 607. Millers v. Augusta, 63 Ga. 772. In

3' Wabash & E. Canal Trustees one case it was held to be the

V. Reinhart, 22 Ind. 463. clear duty of the state to lease cer-

38 Usually the state or a com- tain water of a state-owned canal

pany operating a canal is not re- where the legislature of the state

garded as bound to lease surplus had provided that the contractors

water to all applicants in the ab- who had dug it were to be paid

sence of statute requiring it. out of the rents of the water-

Buiney v. Chesapeake, etc. Canal power. French v. Gapen, 105 U.

Co., 8 Pet. (U. S.) 201, 8 Law. S. 509, 26 Law Ed. 951.

118 LAW OF LANDLORD AND TENANT.

§ 85. Leases by a tenant in dower or curtesy. Inasmuch as
the right of dower is during the lifetime of the husband and
Until dower is assigned to the widow a mere personal right and
confers no estate in the land, it is not capable of being leased.'®
However, after dower has been assigned to her, a Avidow may
lease the land which she holds in dower for a term or for her
life. The rights of the lessee of the widow are the same as the
rights of any lessee of any tenant for life. It has been held
that a covenant contained in a so-called lease of the right to
have dower assig-ned by which the tenant agrees to pay the
widow rent in consideration of her forbearing to exercise her
right to dower, is a personal covenant. Hence, it does not run
with the land so as to bind the tenant's assignee. Nor is the
widow's contract a release of her dower if it is merely an
agreement on her part to forbear asserting her dower for a cer-
tain time.*** The tenant of an estate by the curtesy may execute
a lease to the same extent as a tenant of any other life estate.
Where the husband during the lifetime of the wife with or
without her consent, leases her land for a term, the vesting in
him of the estate by the curtesy will validate his lease to the
extent that the term is unexpired. But, if before the death of
the wife the husband makes a lease of her land in his own name
and agrees to confer the possession on the lessee when the lessor
shall become a tenant by the curtesy the future lease is subject
to being defeated by the act of the wife in conveying or devising
to another than her husand her real property,*^ as a result of
which the husband's estate by the curtesy is defeated.

55 86. Agricultural leases in New York. In New York, prior
to the constitutional provision which we are now to discuss, a very
large portion of the manorial lands were leased in fee, or for
very long terms, by their proprietors reserving an annual rent
in money, produce or services. As the population increased and
farming became widespread it was very soon apparent that
such a mode of land tenure was unfavorable to progress for the
tenants, owning only the usufruct, subject at any moment to be
forfeited by breach of condition, felt none of the pride of in-

3« Chicago, B. & D. Ry. v. Kelly, <» Croade v. Ingraham, 13 Pick.

221 111. 498, 77 N. B. Rep. 619; (Mass.) 33, 35, 36.

Hyatt V. O'Connell, 130 Iowa, 567, 11 Porch v. Fries, 18 N. J. Eq-

107 N. W. 599. 204, 209.

CHARACTER OF PROPERTY WHICH MAY BE LEASED. 110

dependent ownership and had no desire or incentive to improve
or even to cultivate in a husbandlike manner, land which was
liable at any time to pass from them or their heirs without com-
pensation. To remedy this evil the framers of the constitution of
1846, abrogated such tenures and provided furthermore "that
no lease or grant of agricultural land for longer period than
twelve years, thereafter made, in which should be reserved any
rent or service of any kind, should be valid." The rents or
services mentioned are only such as are certain and periodical
and issue out of the land and are paid for its use. Construing
the New York statute some of the cases have held that a lease
for more than twelve years is void in toto.*- Other cases have
held that the lease is good for the period limited by the statute
or constitution but that it is void as to the excess of the term
over that period.*^ So a lease of farm land for twelve years
or a covenant to renew every twelve years during the life of a
landlord is void except as to the first twelve years.** A lease
of farm land for twelve years to commence at the expiration
of a prior term of eight years is invalid.*^ Where a tenant
holding farm land under a valid unexpired lease surrendered
it and then executes two leases, one for eight and one for twelve
years to run successively, the two leases are construed together
as one lease and both are invalid. But the fact of their in-
validity does not revive the valid lease which has been surren-
dered.*® The statutes and constitutional prohibition do not apply
to life estates or to leases for life as they are for an indefinite
period depending for their duration wholly on the contingency
of death, though they may possibly exceed twelve years in
duration.*^ For as a general rule in order that the lease shall
be void it must in fact extend beyond the twelve year period.
The possibility that it may extend beyond the period is not

42 0dell V. Durant, 62 N. Y. 524; (N. Y.) 606, 14 How. Pr. (N. Y.)
Clark V. Barnes, 76 N. Y. 301, 32 418.

Am. Rep. 306. *'^ Clark v. Barnes, 76 N. Y. 301,

43 Hart V. Hart, 22 Barb. (N. Y.) 304, 32 Am. Rep. 706.

606; Robertson v. Hayes, 83 Ala. 46 Clark v. Barnes, 76 N. Y. 301,

290, 3 So. Rep. 674; Parish v. Rog- 304, 32 Am. Rep. 706.

ers, 20 App. Div. 279, 46 N. Y. 4- Parish v. Rogers, 20 App. Div.

Supp. 1058. 279, 46 N. Y. Supp. 1058; Wegner

44 Becker v. De Forest, 1 Swee- v. Lubenow, 12 N. D. 95, 95 N. W.
ney, 52S; Hart v. Hart, 22 Barb. Rep. 442, 445.

120

LAW OF LANDLORD AND TENANT.

sufficient/^ A statute which limits the duration of leases in
which rent or service is reserved does not apply to a life estate
for which a gross sum is paid. The terms of the statute as they
are restrictive of the free alienation of landed property will not
be extended by construction. The terms "rent or service" will
be construed in their strict and technical sense. Eent is usually
a profit arising out of the income or yearly profits of land, and
differs from a lump sum paid as the consideration for the trans-
fer of an estate in land. Hence a life lease for which no rent
is to be paid is not void under the statute though tlie considera-
tion for it be paid in instalments or consist of services so long
as the payment or rendition of services be not made by way of
rent.*® A lease of agricultural land is within the prohibition
though the land is leased for other than agricultural purposes,
for it is the character of the land, not the purpose of its use
which determines the validity of the lease.^°

<s In Parish v. Rogers, 20 App.
Div. 279, 46 N. Y. Supp. 1058, it
is said: "A particular proliibition
upon the free alienation of prop-
erty cannot be extended or en-
larged beyond the terms in which
the restriction is expressed by the
application of any rule of liberal
interpretation. On the contrary,
the provision must be made to
bear a restrictive interpretation,
and be limited in its operation and
effect by the language employed.
If we hold that an estate for life
is per se an estate exceeding
twelve years in duration, and
therefore void, it follows that such
estate in agricultural lands, with
a reservation of rent, are entirely
abrogated and the owner of prop-
erty is prohibited from creating
such an estate either for his own
life or that of another. . . .
The • purpose of the constitution
was not to Interdict the creation
of such estates, but to limit the
time beyond which they shall not
extend. Where the time is speci-

fied in the lease and exceeds the
limit it is void per se, but where
it is left indefinite, and its termi-
nation depends upon the contin-
gency of death, which may happen
within the period of limitation, it
cannot be said to be void ipso
facto, as being made for a period
longer than twelve years."

40 Stephens v. Reynolds, 6 N. Y.
454; Wegner v. Lubenow, 12 N. D.
95, 95 N. W. Rep. 442, 444; Par-
sell V. Stryker, 41 N. Y. 480. The
lease "must reserve rent, as rent,
payable at stated periods, and a
grant or lease of land for life or
for a long term of years, for a
specified consideration, whether
payable in instalments or at one
time is not such a lease." Parsell
v. Strylter, 41 N. Y. 480.

soodell V. Durant, 62 N. Y. 524,
525. In Maryland by Acts 1884,
page 649, chapter 485, it is pro-
vided that all leases for a period
in excess of fifteen years shall be
redeemable at the option of the
tenant on his paying a sum of

CHARACTER OF PROPEETY WHICH MAY BE LEASED. 121

§ 87. The power to lease a homestead. The occupant of real
estate which is exempt from a sale under execution by a statute
because it is claimed to be the homestead of the occupant may
execute a valid lease of all or of a portion of the same to the
same extent as the owner of any other sort of real estate. This
rule is subject to the exception that where the owner of the
homestead is a married man it is usually necessary that his wife
shall join in the lease. As between the homesteader and his
lessee the validity of the lease cannot be questioned by either on
the g-round that the premises are the homestead of the lessor.
This rule has been so well recognized that there are few, if any,
direct adjudications upon it. Assuming the lease itself is
valid as between the parties to it, the question remains to be
considered, to what extent third parties are affected by it. In
other words,, the question is to what extent does the leasing of
a homestead by the owner and its actual occupation thereafter
by the lessee constitute an abandonment or a waiver of the home-
stead privilege by the lessor so far as the rights of his creditors
are concerned? The waiver or abandonment of a homestead
exemption once established in good faith is largely a matter of
intention depending on the circumstances in any particular case.
Some sort of an occupancy by the homesteader is essential to
the existence of the exemption. But actual occupancy of the
whole tract embraced in the exemption is not required. This
is often impracticable or very inconvenient, particularly in the
case of farm land or land which is located in the country. Hence
a constructive occupation and use as a homestead has often
been held sufficient if the homestead claim continues to be main-
tained in good faith. A temporary absence although it may be
prolonged for months and perhaps years, is not of itself alone
an abandonment of the right and the fact that a portion and
even the whole of the land is rented does not destroy the home-
stead exemption unless the statute expressly or by necessary

money which is to be fixed under being remedial must be liberally

rules therein set forth. The ob- construed. Its provisions cannot

ject of the statute was to abolish be waived by the consent of the

long leases which it was believed parties. It applies to land which

were injurious to the prosperity of is to be built upon as well as to

the city of Baltimore. Stewart v. land which has buildings on it.

Garter, 70 Md. 242, 16 Atl. Rep. Swan v. Kemp, 55 Atl. Rep. 441,

€44. 2 L. R. A. 711. The statute 443, 97 Md. 6S6.

122

LAW OF LANDLORD AND TENANT.

implication requires an actual occupancy by the homestead
claimant. ^^ Accordingly it has been held that the leasing of
land which Mas claimed to be the homestead of an old man whose
extreme age and illness compelled him to i^eside with one of his
children elsewhere,'^- or the leasing of the homestead by a per-
son who, for reasons of his own, had temporarily removed there-
from ^^ but intended subsequently to return thereto ^* cannot be
regarded as an abandonment of the homestead and hence will it
not subject the premises to be levied on under an execution. ^^

51 Hixon V. George, 18 Kan. 253;
Bank v. Warner, 22 Kan. 537; Gar-
linghouse v. Mulvane, 40 Kan.
428, 19 Pac. Rep. 798; Shirack v.
Shirack, 44 Kan. 653, 24 Pac. Rep.
1107. See, also, as sustaining the
text, Scaife v. Argall, 74 Ala. 473;
Metcalf V. Smith, 106 Ala. 301. 17
So. Rep. 537; Fuller v. Whitlock,
99 Ala. 411, 13 So. Rep. 80; Hines
V. Duncan, 79 Ala. 112, 58 Am.
Rep. 580; Gates v. Steele, 48 Ark.
539, 4 S. W. Rep. 53; Simpson v.
Biffle, 63 Ark. 289, 38 S. W. Rep.
345; Dallemand v. Mannon, 4 Colo.
App. 262, 35 Pac. Rep. 679; Simon-
son V. Burr, 121 Cal. 582, 54 Pac.
Rep. 87; Stewart v. Brand, 23
Iowa, 477; Sibley v. Lawrence, 46
Iowa, 563; Pitney v. Eldridge, 58
Kan. 215, 48 Pac. Rep. 854; Du-
lanty v. Pynchon, 6 Allen (Mass.),
510; Earll v. Earll, 60 Mich. 30,
26 N. W. Rep. 822 ; Spratt v. Early
(Mo.), 69 S. W. Rep. 13; Locke
V. Rowell, 47 N. H. 46; Wetz v.
Beard, 12 Ohio St. 431; Hancock
V. Morgan, 17 Tex. 582; Newron v.
Calhoun, 68 Tex. 451, 4 S. W. Rep.
645; C. B. Carter Lumber Co. v.
Clay (Tex. 1888), 10 S. W. Rep.
293; H. P. Drought & Co. v. Stall-
worth (Tex. 1907), 100 S. W. Rep.
3 88. Contra, Benson v. Aitken, 17
Cal. 163; Burson v. Dow. r,r, 111.
146; Smith v. Bunn, 75 Mo. 559;

Warren v. Patterson, 32 Neb. 727,
49 N. W. Rep. 703.

52 Gates V. Steele, 48 Ark. 539, 4
S. W. Rep. 53.

53 Stewart v. Brand, 23 Iowa,
477.

54 Hixon V. George, 18 Kan. 253;
Dulanty v. Pynchon, 6 Allen
(Mass.) 510; Earl v. Earl, 60
Mich. 30, 26 N. W. Rep. 822; Wetz
V Beard, 12 Ohio St. 431; Han-
cock V. Morgan, 17 Tex. 582; Hines
V. Nelson (Tex. Civ. App.), 24 S.
W Rep. 541.

55 In Alabama, Code 1876, sec-
tion 2843, provides that the leas-
ing of a homestead for a period of
more than twelve months at any
one time shall be deemed an aban-
donment of it. Under this statute
a lease for twelve months, with
a new lease to begin at its expira-
tion, is an abandonment of the
homestead. Scaife v. Argall, 74
Ala. 473. In California the leas-
ing of the homestead after the
death of the wife of the occupant,
upon an agreement by the lessee
to keep the occupant's infant child,
is an abandonment of the home-
stead, though some furniture was
loft in the house and the debtor,
after his remarriage, reoccupied
the premises. Benson v. Aitken. 17
Cal. 163. In Texas where the
plaintiffs rented, for a few months.

CHARACTER OF PROPERTY WHICH MAY BE LEASED.

123

§ 88. The lease of a portion of a homestead. Premises which
are occupied by a person who has made and filed a declaration
that they are his homestead, are no less his homestead, because
he leases a portion of them to anotJier party while continuing to
occupy the remainder himself. ^^ Hence M'here the occupant of a
homestead leased a bam on his premises, and temporarily left
his residence there, he did not lose the homestead exemption as
to the groimd covered by the barn, though the statute in terms
required that the premises shall not only be owned but also
occupied by the claimant as a homestead.^' So the owner of a
homestead consisting of a farm, who fences otf a portion of it,
and leases it for a term with the privilege of a renewal for
another term does not by his lease and the separation of one
part of the farm from the other, lose his exemption as to either
portion.*^

their city home, which they had
occupied for a number of years as
a homestead, and went to live on
a ranch, but with no intention of
abandoning their city home, to
which they soon returned, such
temporary lease does not consti-
tute an abandonment. Hines v.
Nelson (Tex. Civ. App.), 24 S. W.
Rep. 541. In Wisconsin it has
been distinctly held that a debtor
who removes from his homestead,
without any intention of acquir-
ing another elsewhere, for tempo-
rary purposes merely, or from
some necessity, and with the in-
tention of returning again to oc-
cupy the same as and for his
homestead as soon as circum-
stances will allow, does not for-
feit or lose the exemption of the
same from sale on execution,
though he should, while absent
therefrom, rent it to a tenant.
Herrick v. Graves, 16 Wis. 157. In
New Hampshire nothing short of
a voluntary abandonment of a
homestead, so understood by all
the parties, will divest the estate

in the homestead; and no infer-
ence of an intent to abandon the
homestead will be made from a
kase of the premises for one year
at a time by the person holding
the homestead right when the in-
tention to retain the residence is
clearly evidenced by other facts.
Locke V. Rowell, 47 N. H. 46.

5« Bailey v. Dunlap, 138 Ala. 415,
419, 35 So. Rep. 451; Heathman v.
Holmes, 9i Cal. 291. 29 Pac. Rep.
404; IMaroney Hardware Co. v.
Counelles (Tex. Civ. App. 1894),
25 S. W. Rep. 448; Prufrock v.
Joseph (Tex. Civ. App. 1894), 27
S. W. Rep. 264.

5" Guy V. Downs, 12 Neb. 5^2, 12
N. W. Rep. 8.

5s Pitney v. Eldredge, 58 Kan.
215, 48 Pac. Rep. 854. The fact
that an owner does not exclusively
occupy an entire homestead does
not destroy the exemption. A part
may be used for other purposes
than a homestead where the whole
amounts to but one tract of land
not exceeding the area permitted
to be exempt under the law. And

124 LAW OF LANDLORD AND TENANT.

§ 89. The mode of the execution of a lease of a homestead.
The statute usually requires that both husband and wife must
join in a deed of conveyance affecting a homestead except where
the deed of conveyance is executed as a security for the pur-
chase price. In the latter ease the signature of the husband is
sufficient. Usually the husband has no power of encumbering the
homestead by a lease or other conveyance without the signature
of his wife. In Texas the lease of a homestead for a term, with
the privilege of an indefinite renewal which is not signed and
separately acknowledged by the wife, has been held as invalid.'®
A statute which requires the wife to join in the execution of
the conveyance of the homestead is mandatory. It follows
necessarily that an instrument which purports to affect or to
encumber the homestead in which the wife has not joined Is
invalid as to her. Her privileges in the homestead will be re-
served as against the holder of the void conveyance and it is
not material under the statute that the title to the homestead is
in the husband alone for any conveyance by him which confers
a possession which interferes in any way with the enjoyment of
the premises by the wife as a homestead is invalid.^" Cir-
cumstances may arise, however, where the wife will be estopped

where the part which is claimed cupancy of the entire farm is not
to be not a part of the homestead essential, and the circumstance
has not been totally abandoned as that the tenant cultivated the part
a part thereof by making it, for leased to him in the same manner
instance, another person's home- as his lessor is very material in
stead, or by using it or permitting showing that there has been no
it to be used in some other way abandonment of the homestead,
inconsistent with the homestead, Bebb v. Crowe, 39 Kan. 342; Huff-
it is still a homestead. Thus, to man v. Hill, 47 Kan. 613.
show that property though leased eg Southern Oil Co. v. Colquitt
Is still a homestead it may be (Tex. Civ. App.), 69 S. W. Rep.
proved that rent was to be paid 169. See, also, Wiliams v. Galves-
in six month Instalments and a ton (Tex. Civ. App.), 58 S. W. Rep.
default in the payment of any of 551.

the instalments entitled the owner so Hosteller v. Eddy, 128 Iowa,

of the homestead to re-enter. So, 401, 104 N. W. 485; Coughlin v.

under the lease he was entitled to Coughlin, 26 Kan. 116, 118; Kloke

go on the land to see that waste v. Wolf (Neb. 1908), 111 N. W.

was. not committed and that the Rep. 134; Wea Gas, etc., Co. v.

covenants in the lease were per- Franklin Land Co., 54 Kan. 533,

formed. Actual and continuous oc- 535, 38 Pac. Rep, 790.

CHARACTER OF PROPERTY WHICU MAY BE LEASED. 125

to assert the invalidity of a lease of a liomestead which Avas
executed without her joining in it. Her acquiescence after she
knows of the execution of the lease and with knowledge of the
occupation by the tenant, and of his cultivation of the land as
a tenant after the lease had been signed may all be proved, and,
if it appears equitable from her silence and her conduct that
the lease should be supported, the court may act accordingly.
If, for illustration, the tenant, relying upon the wife's silence
and failure to object, shall have planted a crop which is about
to be reaped when the wife raises the question of the validity
of the lease, it is very likely that the court would not declare
the lease void in an action by the wife against the tenant with-
out compelling her to compensate the tenant for the value of
the crop.**

61 Johnson v. Samuelson, 69 Kan. 263, 76 Pac. Rep. 867.

CHAPTER VI.

TENANCY FROM YEAR TO YEAR.

§ 90. The origin of tenancy from year to year.

91. The continuity of the several yearly periods.

92. The use of express language in creating a tenancy from year

to year.

93. The character of the cultivation of the land as determining the

period of the tenancy.

94. The payment of a yearly rent as creating a tenancy from year

to year.

95. The effect of the death of either party upon a tenancy from year

to year.

96. The rule as to repairs by a tenant from year to year.

97. A tenancy from year to year created by a tenant holding over.

98. Rebutting the presumption which arises on a tenant holding

over.

99. The modification of the terms of the original lease as against a

tenant holding over.

100. Holding over excused when it is caused by the action of the

board of health.

101. Statutory modification of the rule that a holding over creates a

tenancy from year to year.

102. Tenancies from year to year created by leases void under the

statute of frauds.

103. Tenancies from year to year arising from defective and unexe-

cuted leases.

104. The necessary incidents of a tenancy from year to year.

105. Tenancies from month to month. How created.

106. Tenancy from month to month by holding over.

107. The commencement of the monthly period.

108. The conversion of tenancies from month to month into ten-

ancies from year to year.

109. The statutory rules creating a tenancy from month to month by

holding over.

110. Tenancies from week to week.

111. The necessity of notice to quit at common law.

112. The length of time required by the notice to quit.

113. The length of the notice to quit in weekly and monthly ten-

ancies.

114. Statutory regulation of the notice to quit.

115. The necessity and the sufficiency of a notice to quit in the case

of tenancy from month to month.

TENANCY FROM YEAR TO YEAR. 127

■■§ lie. The statutory regulation of the notice to quit in tenancies from
month to month.

117. Notice to quit when required by the express terms of the lease.

lis. The form and the character of the notice to quit.

119. The construction of the language of the notice to quit.

120. To whom notice must be given.

121. By whom the notice to quit must be given.

122. The date upon which the period stated in the notice must termi-

nate.

123. The necessity of personal service of the notice to quit.

124. A notice to quit given by an agent.

125. Waiver of defects in the notice to quit.

126. Waiver of a notice to quit by a subsequent notice.

127. The effect of a notice to quit.

128. The withdrawal of a notice to quit.

129. The waiver of a notice to quit by the receipt of rent

130. When a notice to quit may be dispensed with by a surrender.

131. A disavowal of the landlord's title by the tenant may dispense

with giving a notice to quit by the landlord.

§ 90. The origin of tenancy from year to year. The relation
of landlord and tenant in a hiring or a tenancy from year to
year imquestionably had its origin in the reluctance of the
English courts to enforce the arbitrary will of the landlord
in determining estates at will and in their desire to protect the
rights of the tenants to their crops growing on the land upon
the determination of the estate. The precarious and uncertain
character of the tenure which was at the will of the landlord
and the inducement which this tenure offered for the landlord
to terminate it without notice because of which a tenant of agri-
cultural land might be unjustly deprived of the fruits of his
industry in sowing and cultivating the land appealed to the
courts. The tenancy from year to year is the offspring of ten-
ancy at will which in early times was almost the sole tenancy
recognized. In the quaint language of the early law the tenancy
from year to year was substituted for the vague and uncertain
tenancy at will to uphold and effectuate the just maxim
that he "who sows, may reap."^ Hence so long ago as the
time of the year books, a general occupation of land no time or

1 This desire to secure to the early gave rise to the doctrine of

tenants the crops which were emblements which still endures,

growing on his land at the termi- Litt. § 68.
nation of the tenancy at will very

128 LAW OF LANDLORD AND TENANT.

duration of the tenancy being mentioned was by implication
tind in favor of the cultivation of the soil construed by the com-
mon law judges to be a tenancy from year to year and that the
tenancy could not be determined and the tenant put out of his
land without a reasonable notice by the landlord of his inten-
tion to terminate the tenancy, which notice was very early
required to be given at least six months before the termination
of any year.^

§ 91. The continuity of the several yearly periods. On a
mere cursory examination of the tenancy from year to year it
would seem that each annual term constitutes a separate and
distinct estate or term. Though this is true in fact the law con-
sider the several yearly terms as merged as soon as two or more
of them have passed and the law then looks forward to each fu-
ture recurring year as it arrives as a separate term only until
it is consolidated with those which have preceded it. Every
year after the first is a springing interest or estate arising from
and based on the first annual term, assimilating to it and soon
to become a parcel of it. But on the other hand each recurring
yearly tenancy is for a separate period so that the term may be
pleaded against the tenant as commencing with the first day of
the current year though the tenant has in fact occupied the
premises for several years previously thereto.^ It may be said
however that, though the lessor may adopt this course in plead-
ing, it is not compulsory upon him to do so. He may declare on
the demise from year to year either as a new .demise or as a
part of an old contract. So, it has been said that if a tenant
from year to year shall hold for two years or more either he or
his landlord may then plead the lease as having been made for
so many years from the date of its original making of the lease.*
So too at common law in the case a tenant from year to year
holding over and dying during the third year of his tenancy,
it was held that the landlord might, even after his tenant's

2 See remarks of Lord Kenyon A tenancy from year to year is not

in Martin v. Watts, 7 T. R. 85, and to be considered as a continuous

Share v. Porter, 3 T. R. 13. tenancy, but as commencing every

8 Cattley v. Arnold, 1 John. & year. Tomliins v. Lawrance, 8

H. 651, 657; Bartlett v. Baiter, 34 Car. & P. 729; Gandy v. Jubber, 5

L. J. Ex. 11; Tomkins v. Law- B. & S. 78, 33 L. J. Q. B. 151, 10

ranee, 8 Car. & P. 729, 731. .lur. (N. S.) 652, 9 L. T. 800, 12

« Birch V. Wright, 1 T. R. 380. W. R. 52G.

TENANCY FROM YEAR TO YEAR.

129

death in the third year, distrain for the unpaid rent of the
second year on the theory that when a tenant from year to
years holds over, his holding over must be regarded as an agree-
ment which is a part of the original contract and in execution
of it, and that the third year was not in the nature of a sep-
arate term of one year but that it was merely an offshoot and
incident of the first year.^

§ 92. The use of express language in creating a tenancy from
year to year. In England bj^ many of the earlier common law

5 Legg V. Strudwick, 2 Salk. 414.
"Leases from year to year appear
at first view to give several dis-
tinct estates. In truth, they give
only one time of continuance.
That time, however, may be con-
fined to one year, or extended to
several years, according to circum-
stances attending the tenancy in
its progress. In the first place, the
lease is for one year certain, and
after the commencement of every
year, or perhaps after the expira-
tion of the period in which a no-
tice determining the tenancy may
be given, it is a lease for the sec-
ond year; and in consequence of
the original agreement of the par-
ties every year of the tenancy con-
stitutes a part of the lease, and
eventually becomes a parcel of the
term, so that a lease which is in
the first instance but for one year
certain, may, in the event of a
term, be one hundred years or
more. Under this species of ten-
ancy the law considers the lease
with a view to the time which has
elapsed, as arising from an estate
for all that time, including the
current year. For, as all the time
for which the land may be held
under a running lease is originally
given, and in effect passes, by the
same instrument or contract, the
whole time is consolidated, and
every year as it commences forms

9

a part of the time." Preston on
Estates, p. 76. The importance of
the principles just enumerated lies
in the somewhat technical charac-
ter of the laws of common-law
pleading in their relation to fram-
ing a declaration in an action on
the covenant for rent. In Cattley
V. Arnold, 1 Johns. & H. 651, 28
L. J. Ch. 352, 5 Jur. (N. S.) 361,
7 W. R. 245. Vice Chancellor Wood
says: "In the case of Oxley v.
James, 13 Mee. & W. 209, 214, I
find some observations of Lord
Wensleydale, which, while they
state the reasons for the decision
of the court both in that case and
in a previous case of Pike v. Eyre.
9 B. & Cr. 909, appear to me cor-
rectly to express the result of the
authorities as to the nature of
this tenancy. 'Legg v. Strudwick,"
he saj'-s, 'and Bacon's Abridgment,
Leases, L. 3,' show what is the na-
ture of an estate from year to
year; namely, a lease for a year
certain, with a growing interest
during every year thereaftrr.
springing out of the original con-
tract and parcel of it. A demise,
therefore, by such a person for a
term of years is no assignment:
he never means to part with tha
whole benefit of that interest. It
is a term for so many years, sub-
ject to determination by the cessa-
tion of the original interest.' "

130

LAW OF LANDLORD AND TENANT.

authorities it was at one time heicl that a lease, whether it were
oral or in writing being couched in express language "from
year to year so long as the parties were pleased to continue,"
was at least a lease for two years certain and that for that
reason the lease was not terminable by a notice to quit served
during the first year.® But the more recent rule is that an
express agreement whether in writing or by parol creating a
lease by which one becomes a lessee "from year to year" at a
certain definite and fixed annual rent, constiutes an express
lease from year to year which is determinable by either party
to it at the end of the first year, to the same extent that it is
determinable at the end of any subsequent year, by the service
of a proper and timely notice to quit.'^ Hence it follows that
where a tenancy from year to year has been by implication

6 Agar d v. King, Cro. Eliz. 775;
Legg V. Strudwick, 2 Salk. 414;
Doe d. Chadburn v. Green, 9 A. &
E. 658, 8 L. J. Q. B. 100, 1 P. & D.
454; Birch v. Wright, 1 T. R. 380;
Monck V. Geekie, 5 Q. B. 841; Hall
V Myers, 43 Md. 581; Hanchett v.
Whitney, 1 Vt. 315.

T Wood V. Beard, 46 L. J. Q. B.
100, 2 Ex. D. 30, 35 L. T. 866;
Clarke v. Smarridge, 7 Q. B. 957,
14 L. J. Q. B. 327, 9 Jur. 721. In
which case Lord Denman said:
"Now a tenancy from year to year
lasts fully as long as both parties
please; and that is, it is deter-
minable by either party at the end
of any year, by giving notice to
quit one-half a year before the end
of the year. There is no reason
why it should not be so determined
at the end of the first year as well
as at the end of any subsequent
year, unless the parties have by ex-
press contract precluded such de-
termination. In the cases of Agard
V. King, Cro. Eliz. 775; Denn. dem.
Jacklin v. Cartright, 4 East, 29
Bellases v. Burbrick, 1 Salk. 209
Legg V. Strudwick, 2 Salk. 414
Birch V. Wright, 1 T. R. 378, 380

Doe dem. Chadburn v. Greene, 9

A. & E. 658, such express contract
appears either by the proceedings
or by the evidence. In this case
there is no such express contract
but the tenancy for two years at
least is supposed to be implied by
necessity of law." The court, how-
ever, held that no such necessity
existed. "If A. demise lands to

B. for a year, and so from year to
year, this is not a lease for two
years, and afterwards at will; but
it is a lease for every particular
year, and, after the year is begun,
the defendant cannot terminate
the lease until the year is ended."
Stomfil V. Hicks, 2 Salk. 413, Ld.
Ray. 680. A lease at an annual
rent, "for the term of one year
and an indefinite period there-
after," where the tenant enters
and occupies for several years, is
a lease from year to year, and on
the tenant's death passes to his
personal representatives, who in
their representative capacity are
liable for the rent so long as they
occupy. Pugsley v. Aikin, UN.
Y. 494, reversing 14 Barb. (N. Y.)
114.

TENAXCY FROM YEAR TO ^'EAR. 131

created by a tenant for a term of years holding over and paying
rent after the expiration of his term the landlord may termi-
nate the tenancy from year to year by a notice to go into effect
at the end of the first year.* A lease from year to year may be
created by an indefinite hiring with a power in tlie tenant to
leave at the end of any year. The renting of premises for an
indefinite period and their occupation by a tenant for one year
constitutes a tenancy from year to year.® A lease of land for
one year, with a privilege of continuing the same from year to
year so long as both parties agree, creates a tenancy from year
to year.^° A lease for one year with the privilege of three years
from a certain day, confers on the tenant the right to remain
from year to year not exceeding three years, and he may quit at
the expiration of any year of the three. In a lease for one year
from a certain day the landlord's right to re-enter does not
begin until the first moment of the corresponding day on the
following year.^^ A lease for "one year, and so on from year
to year." is a lease for one year absolutely, and if the tenant
continues for a second year without the dissent of the landlord,
it is then a lease for another year, and so on for each succeeding
year.^- A lease from the first day of a certain month "until
such time as the tenancy shall be terminated as. hereinafter pro-
vided" at a yearly rent with a provision "that it shall be law-
ful for either party to determine the tenancy herein created by
giving to the other three calendar months notice of his inten-
tion in writing is a yearly tenancy determinable by three months
notice to expire at the end of any year of the tenancy and not
an indefinite tenancy determinable by three months notice.^'

§ 93. The character of the cultivation of the land as de-
termining- the period of the tenancy. The principle, that he
who sows shall reap, founded as it is upon the broad basis of
equitable and fair dealing between man and man and upon the
well-recog-nized rule that the acceptance, possession and enjoy-

R Clark V. Smarridge, 7 Q. B. n Duffy v. Ogden, 64 Pa. St. 240,

957, 14 L. J. Q. B. 327, 9 .Tur. 721. 27 L. I. 77, 2 Leg. Gaz. 73.

!^Reg. V. St. Giles, 4 B. & S. 509, 12 Lesley v. Randolph. 4 Rawle

33 L. J. M. C. 3, 10 .Tur. (N. S.) (Pa.) 123.

205, 9 L. T. 411, 12 W. R. 125. " Lewis v. Baker. 75 Law J. K.

10 Hatfield v. Lawton, 108 App. E. 848; (1906) 2 K. B. 599, 95 L. T.

Div. 113. 95 N. Y. Sui)p. 451. 10, 22 L. T. 680.

132 LAW OF LANDLORD AND TENANT.

ment of the benefits and i)rivileges of the contractual relations
by implication creates and imposes corresponding and reciprocal
obligations was the moving cause that in very early times mod-
ified estates at will and changed them into tenancies from year
to year. The bulk of land held in tenure was then agricultural
and the necessity was very apparent and indeed urgent that
some protection should be thrown around tenants to protect
them from losing, by a sudden and arbitrary termination of
their tenancy at will, the advantages and beneficial results of
their labors in husbandry. The possession and enjoyment of the
products of the tilled land was the consideration which moved
and impelled the tenant cultivator to agree to pay and to pay
the rent. And as the crops were usually 3'early the tenancy was
also yearly. So, on the same principle where land is hired at
a yearly rental for use as a nursery for fruit trees which do not
yield their produce annually but only after the trees have
reached maturity and after several years of growth the lease will
be regarded by the law as a lease from year to year so long as
is necessary for the purj30se of the tenancy.^* In certain
peculiar circumstances where a crop, after being planted, re-
quires two years to reach the condition in which it is ready for
reaping a general hiring, no term being specified, might, it
seems, be regarded by the common law as a tenancy from two
years to two years, which cannot be terminated by a notice to
quit at the end of the second or third year. Crops of madder
and liquorice would very likely come under the rule. "We are,
however, without direct judicial authority on this question and
at the most have merely the suggestions or opinions of text book
writers to guide us.^^

1* King V. Wlllcomb, 7 Barb. (N. When it is a lease of an inherit-

Y.) 263; Miller v. Baker, 1 Met. ance, the fruits of which are gath-

(Mass.) 27. ered at intervals of several years,

15 See Adams on Ejectment, 138. the lease is deemed to continue for

"If the parties have omitted to ex- all the time that is requisite to

press the duration of the term, the enable the tenant to gather in the

lease will nevertheless be valid. If fruits. In a case where a person

It is a demise of an inheritance had leased land, no term being

of which the fruits are gathered mentioned, for the purpose of

every year, such as a meadow, brick-making, agreeing to pay the

vineyard, etc., the lease is deemed lessor so much per one thousand

to have been made for a year. bricks upon the quantity made,.

TENANCY FROM YEAR TO YEAR.

133

§ 94. The payment of a yearly rent as creating a tenancy
from year to year. While it may safely be said that a mere
general letting and occupation of real property, nothing having
been expressly agreed upon by the parties thereto as to the dura-
tion or termination of the occupancy, constitutes ordinarily
only a tenancy at will, the circumstance in connection with such
a lease that the rent is payable annually, or not being thus
payable is calculated and fixed at so much per year, though pay-
able at shorter intervals is often, though not always, a controll-
ing fact in converting what would otherwise be a tenancy at will
into a tenancy from year to year.^® So, also, it has been held
that though when the tenant goes into the occupation of the
premises under an agreement for a lease but paya no rent he
is merely a tenant at will, yet, as soon as he begins to pay rent
by the year for his occupation under the agreement for a lease

the court, in holding that the
lessee was merely a tenant from
year to year, relied upon the facts
that no premium for the lease was
paid to the lessor by the lessee,
that there was no power of dis-
tress, and no right of re-entry in
the lessor and no obligation on
the part of the lessee to work out
the brick earth. Consequently the
lessee unless the tenancy was by
the year might hold the land for
ever which evidently was not the
intention of the lessor. In re
Stroud, 8 C. B. 502, 530, 19 L. J.
C. P. 117.

16 Bishop V. Howard, 2 B. & C.
100, 3 Dowl. & L. 293; Richardson
V. Langridge, 4 Taunt. 128, 131;
Cattley v. Arnold, 1 John. & H.
651. See, also, Braithwayte v.
Hitchcock, 10 Mee. & Wei. 497;
Doe d. Lord v. Crago, 6 Com.
Bench, 96, 98; Cox v. Bent, 5 Bing.
185, 2 M. & P. 281; Doe d. Penning-
ton V. Taniere, 12 Q. B. 998, IS L.
J. Q. B. 49, 13 Jur. 119; Dumn v.
Rothermel, 112 Pa. St. 272; Mc-
Dowell V. Simpson, 3 Watts (Pa.)

135; Hellams v. Patton, 44 S. C.
454; Reeder v. Sayre, 70 N. Y.
180, 26 Am. Rep. 567; Barlow v.
Wainwright, 22 Vt. 88; Silsby v.
Allen, 43 Vt. 172; Second Nat.
Bank v. O. E. Merrill Co., 69 Wis.
501, 34 N. W. Rep. 514; 4 Kent's
Com. ni et seq. Thus an oral
lease for the term of one year at
the rate of $10 per month, which
rent is to be increased to .$11 for
another and succeeding year, does
not create a monthly tenancy but
a hiring by the year, the rent
though being payable by the
month. Schneider v. Lord, 62
Mich. 141, 28 N. W. Rep. 773. "It
is clear that upon proof of the
payment of rent in respect of the
occupation of premises ordinarily
let from year to year, the law will
imply that the party making such
pajTuents holds under a tenancy
from year to year." Doe d. Lord
v. Crago, 6 Com. Bench, 90, 98. A
lease from a certain date "at a
yearly rent" creates a tenancy
from year to year. Florence v.
Robinson, 24 L. T. 705.

134 LAW OF LANDLORD AND TENANT.

he becomes a tenant from year to year, ^" Thoiigli if the pay-
ment of a yearly rent be unexplained a tenancy from year to
year is presumed, this presumption is purely one of fact and
it may be rebutted by evidence to the contrary. ^^ The receipt
of rent may be explained so as to rebut the implication of a
Yearly tenancy arising out of the payment of rent by the year.^*
Hence, from this it follows that whether a tenancy is from year
to year, is a question of fact on all the evidence.-" A tenancy
from year to year may be inferred from periodical yearly pay-
ments only where it is impossible to account for such payments
except upon the hypothesis that the payments were for rent.
It may always be shown that the payments w^ere for another
purpose. Thus, it may be shown that a building contract and
not a lease existed between a landowner and an occupant of land,
and that the payments made to the owner were made on such a
contract for the privilege of erecting buildings of which the
payee was to have a lease in the future.-^ So, too, the landlord
may show that the yearly payment of rent was received by him
under some mistake of fact, or under a misapprehension or in
ignorance of certain circumstances where it is apparent that,
if he had full knowledge of such circumstances, he would not
have received the payments. Thus, where a landlord had con-
tinued to receive rent from a tenant after the termination of a
lease for lives because the death of the lessees had been con-
cealed from him, it was held that no tenancy from year to year

17 Chapman v. Towner, 6 Mee. & though nothing were said about
Wei. 100, 103; Braithwayte v. the duration of the term, it is an
Hitchcoclc, 10 Mee. & Wei. 497; Cox implied letting from year to year.
V. Bent, 5 Bing. 185. See, also, But if two parties agree that one
Hull V. Wood, 14 M. & W. 682; shall let, and the other shall hold,
Mann v. Lovejoy, R. & M. 355; so long as both parties please, thai
Saunders v. Musgrave, '6 B. & C. is a holding at will, and there is
524. nothing to hinder, parties from

18 Rogers v. Pitcher, 1 Marsh, making such an agreement." By
541, 1 Taunt. 202; Williams v. Lord Mansfield in Richardsen v.
Bartholomew, 1 Bos. & Pul. 326. Langridge, 4 Taunt. 128, 130.

in Doe d. Lord v. Crago, 6 Com. 21 Camden v. Batterbury, 5 C. B.

Bench, 90, 17 L. J. C. P. 263, 12 (N. S.) 808, 817, 28 L. J. C. P.

Jur. 705; Hurley v. Hanrahan, 15 187, 5 Jur. (N. S.) 627, affirmed

W. R. 990. 7 C. B. (N. S.) 864, 28 L. J. C. P.

20 "If there were a general let- 335. 5 Jur. (N. S.) 1405, 7 W. R.

ting at a yearly rent, though pay- 616.
able half yearly or quarterly, and

TENAN'CY FROM YEAR TO YEAR. 135

existed and as soon as he discovered this fact, which had been
concealed from him, he might eject the occupier without pre-
vious notice to quit.-^ An actual payment of rent by the year
is not ahvays necessarj^ An admission by a person who has
entered on premises under an executory contract to make a lease
that he owes the owner a half year's rent, in response to a bill
rendered him for a half year's rent by the landlord, creates
a tenancy from year to year though no rent is actually paicl.-^
For an admission by a tenant that rent is payable by the year
is usually sufficient. An agreement for a lease to be executed
in the future for the term of twenty-one years, with a further
agreement that the tenant shall go into possession at once, and
that, until such lease should be executed, a yearly rent should
be payable and recoverable by distress or otherwise in like man-
ner as if such lease should have been executed, creates a tenancy
from year to year, before any rent is paid.-* But an agreement
to pay rent by the year, though usually it creates a tenancy
from year to year, does not control an express tenancy for a
shorter period. A letter written by the lessee in which he states
that he will agree to occupy the premises for three months if
furnished, or will take them "at the rate of a specified sum per
year" if unfurnished, does not, by the words "at the rate of
so much per year," create a tenancy for a year.^"

22 Doe d. Lord v. Crago, 6 Com. only. In the present case, there
Bench, 90. was distinct proof of the paj-ment

23 Cox V. Bent, 2 M. & P. 281, 5 of rent for two quarters of a year.
Eing. 185, 7 L. J. (N. S.) C. P. 68, There is the additional fact of an
30 R. R. 566. occupation for more than a year;

24 Doe d. Bailey v. Foster, 3 C. but in the case of Cox v. Bent, 5
B. 215, 15 L. J. C. P. 263. Bing. 185, 2 M. & P. 281, where a

25 Atherstone v. Bostock, 2 Man. party under an agreement for a
& G. 511, 10 L. J. C. P. 113. "Pay- lease had occupied for more than
ment of rent, indeed, must be un- a year, the court held that a ten-
derstood to mean a payment with ancy from j^ear to year existed,
reference to a yearly holding; not on the ground of the occupa-
for in Richardson v. Longridge, 4 tion, but because the party had
Taunt. 128, a party who had paid during that occupation paid a
rent under an agreement of this half year's rent." By Parke, B.,
description, but had not paid it in Braythwaite v. Hitchcock, 10
■with reference to a year, or any M. & W. 494, 12 E. J. Ex. 38, 6 Jur.
aliquot part of a year, was held 976.

nevertheless to be a tenant at will

136 LAW OF LANDLORD AND TENANT,

§ 95. The effect of the death of either party to a tenancy
from year to year. It is well settled that a tenancy from year
to year is not tenninated by the death of either the landlord
or the tenant during the current year. On the death of the
landlord, in case of a tenancy from year to year, the unexpired
term passes to his administrator or executor as a part of the
landlord's personal estate and is assets in the hands of the repre-
sentative for the payment of debts and legacies or for distribu-
tion among the next of kin to the same extent as other per-
sonal property is.^^ So, also, on the death of the tenant of an
estate from year to year the estate still continues and the per-
sonal representative may enter and he becomes responsible as
such and not personally for the rent to the extent that he has
assets of the tenant. And the fact that on the death of the ten-
ant his widow enters and pays rent to the landlord does not
terminate the tenancy from year to year.-' The estate of the
deceased tenant for years is responsible for rent which has ac-
crued and if the executor enters for that which will accrue. The
tenancy from year to year survives the lessor and vests in his
heirs. An exception to this general rule occurs where the interest
of the landlord of an estate from year to year itself terminates
on his death as where the landlord has only a life estate or inter-
est in the land with the fee in another. Under such circumstances
the tenant from year to year of one who himself is only a life
tenant becomes a tenant at sufferance on the death of his land-
lord, unless, as sometimes happens, the life tenant had a power
to lease, which he has exercised, to bind the estate of the re-
mainderman or reversioner. If this be not the case, the latter
may, without notice or demand of possession, eject the tenant
from year to j'^ear of the life tenant on '^e death of the latter.^*
If the remainderman is of age at the death of the life tenant,
his action in receiving rent from the tenant from year to year
and in continuing him in the possession may, after the life ten-
ancy has terminated, by constituting a new tenancy from year
to year as between him and the tenant holding over, prevent
the remainderman from ejecting the tenant from year to year

20 Doe d. Hull v. Wood, H M. & 27 Hull v. Wood, H M. & W. 082.

W. 682. See Robie v. Mulh, 21 Me. 2? Thomas v. Roberts. 16 M. &

114. W. 780.

TENANCY FROM YEAR TO Y'EAR. 137

"without g"ivin<? him notice to qnit.-^ Such an estoppel by re-
ceiving- rent is not created by a tenant from year to year holding-
over vehere the remainderman is an infant, because the executors
of the life tenant accept rent from the tenant from year to
year.^*^ The action of the executors who represent the deceased
life tenant does not bind the infant remainderman and would
not bind a remainderman though he were an adult. The delay
•of the personal representative of the tenant for years in enforc-
ing his right to possession as against a person who remains in
possession on the death of a tenant for years does not prejudice
the rights of the representative. He has a right to have a period
>of consideration in order that he may ascertain whether it is or is
not advantageous to the estate that he should take possession
and the fact that during this period the widow of the deceased
tenant from year to year remains in possession and pays rent
to the landlord does not prevent the personal representative from
ousting her.^^ In the absence of a specific statutory require-
ment to the contrary, after the death of either the landlord or
tenant of a tenancy from year to year the personal representa-
tive of the deceased may give or receive a notice to quit where
the tenancy itself has sur\'ived.^" So, also, a tenancy from year
to year is never terminated by the insanity of either the land-
lord or the tenant. If during any year the lessor becomes in-
sane and is judicially pronounced incompetent to manage his
affairs, the committee appointed becomes the lessor of the term
and the tenant must deal with him as his landlord. The same
would be true in a case where the tenant became incompetent.^'
§ 96. The rule as to repairs by a tenant from year to year.
A tenant from year to year is bound only to make such repairs

28 Roe d. Jordan v. "Ward, 1 H. It is more than a mere lease from

Black. 96. year to year for if it had been

30 Thomas v. Roberts, 16 M. & such, says Lord Mansfield in this

W. 780. case, it would have expired with-

81 Doe d. Hull V. Wood, 14 Mee. out notice at the end of the year

& Wei. 682. after the death of A. B. The

32 A lease to A. B., his execu- term, however, continues after the

tors, etc., from year to year for death of A. B. until it is termi-

so long time as it shall please the nated by his executor. Mackay v.

lessor and A. B. his executors, Mackreth, 4 Doug. 213, 219.
etc., does not expire on the death 33 McFall v. McFall, 35 S. C. 559,

of A. B., but vests in his executors. 14 S. E. Rep. 985.

138

LAW OF LANDLORD AND TENANT.

as will keep the house in a tenantable position. lie is not re-
sponsible for ordinary wear and tear, nor for permissive waste. ^*
He is not liable to make substantial and lasting repairs.^" And
is only bound to keep the house which he occupies in such a
condition that it may be habitable.^^ If, however, the occupant
is tenant from year to year under a void lease, which contains
the usual covenants by the tenant to repair, he will be bound by
such covenants and will be compelled to make the repairs which
are called for bj^ them."' Thus where a lease was made by a
corporation for the term of three years and the tenant agreed
to put, maintain and deliver the premises in tenantable repair
and he entered thereon, he was held to be a tenant from year to
year as the lease was void because the seal of the corporation
was not on it, and the tenant was liable to keep in repair ac-
cording to its terms though he was a tenant from year to year.^*
On the other hand the landlord of a tenant from year to year
is not bound to make substantial repairs of the premises in the
absence of an express agreement on his part.^^

34 Torriono v. i'oung, 6 Car. &
P. 8, 12. See Martin v. Gilham, 2
N. & P. 568, 7 A. & E. 540, 7 L. J.
Q. B. 11.

35 Ferguson v. , 2 Esp.

590, 5 R. R. 757; Horsefall v.
Mather, Holt, N. P. 7, 17 R. R. 589;
Leach v. Thomas, 7 Car. & P. 328.

36 Auworth V. Johnson, 5 Car. &
P. 239.

37 Beale v. Sanders, 3 Bing. (N.
C.) 850, 5 Scott, 58, 3 Hodges, 147,
6 L. J. C. P. 283, 1 Jur. 1083.

38 Ecclesiastical Comm'rs v. Mer-
rall, 38 L. J. Ex. 93, L. R. 4 Ex.
162, 20 L. T. 573, 17 W. R. 67G.

30 Gott V. Gandy, 2 El. & Bl. 845,
2 C. L. R. 392, 23 L. J. Q. B. 1, 18
Jur. 310, 2 W. R. 38. A covenant
to build or to do such substantial
repairs as are not usually done
by a tenant from year to year will
not usually be implied in the case
of a tenancy from year to year.
Such covenants will not be im-
posed even though the agreement

for a lease stipulates for such cov-
enants or stipulates for the inser-
tion of the usual covenants. Bowes
V. Croll, 6 E. & B. 264. But where
a tenancy is created by an entry
of a tenant under a void agree-
ment to make a lease by the terms
of which the tenant was to keep
the premises in good and tenant-
able repair the covenant to repair
will be implied and will bind the
tenant from year to year. Thus
where a tenant went into posses-
sion under an agreement by which
he was to have a lease for three
years and a quarter, he to keep
the premises in tenantable repair
during the said term, and the
agreement was void for the reason
that it was neither stamped as a
lease nor signed by the parties, it
was held that the tenant was
bound to repair during his occu-
])ancy, though the agreement was
void under the statute of fraud''.
In (his case (Richardson v. Gif--

TENANCY FROM YEAR TO YEAR,

139

§ 97. A tenancy from year to year created by tenant holding

over. Where the tenant holds over after the expiration of the
lease, and the lessor receives rent accruing subsequently to the
expiration of the term, or does any act from which it inay be
inferred that he intends to recognize him still as a tenant, he
becomes thereby by implication a tenant from year to year upon
all the terms of the original lease.'"* And the same rule is true

ford, 1 Ad. & El. 52) the court by
Parke, .J., said: "He did not le-
gally agree for the term of three
years, but, in point of law, he was
tenant at will for the first year,
subject to the terms of the agree-
ment on his own part, and after-
wards tenant from year to year
subject still to the same agree-
ment, which bound him to keep
the premises in good repair as
long as he should occupy." And,
hence, generally, when a tenant
goes into possession under an
agreement for a lease, or under a
void lease, he will, after payment
of rent under it, be treated as sub-
ject to the terms and conditions
of the agreement or lease so far
as the same are applicable to a
tenancy from year to year but no
further. If any of the conditions
are inconsistent with such a ten-
ancy from year to year they will
be rejected.

40 Belding v. Texas Produce Co.,
61 Ark. 377, 33 S. W. Rep. 421;
Parker v, Hollis, 50 Ala. 411;
Stoppelkamp v. Mangeot, 42 Cal.
316; Bacon v. Brown, 9 Conn. 334;
Robertson v. Simons, 109 Ga. 360,
362, 34 S. E. Rep. 604; Crutchfield
V. Remaley, 21 Neb. 178, 31 N. W.
Rep. 687; Tanton v. Van Alstine,

24 111. App. 405; Quinlan v. Bonte,

25 111. App. 240; Board of Direct-
ors V. Chicago Veneer Co., 94 IlT.
App. 492; Belding v. Texas Pro-
duce Co., 61 Ark. 377, 33 S. W.

Rep. 421; Goldsborough v. Gable,
140 111. 269, 29 N. E. Rep. 722, 15
L. R. A. 294; Kleespies v. Mc-
Kenzie, 12 Ind. App. 404. 40 N. E.
Rep. 648; Wheat v. Brown, 3 Kan.
App. 431, 43 Pac. Rep. 807; Mos-
hier v. Reding, 12 Me. 478; Wig-
gins V. Ferry Co., 82 111. 230; Clin-
ton Wire Cloth Co. v. Gardner, 99
111. 151, 165; Clapp v. Paine, 18
Me. 264; Alleman v. Vink, 28 Ind.
App. 142, 62 N. E. Rep. 461; Thei-
band v. Bank, 42 Ind. 312; Hall v.
Myers, 43 Md. 416; Gardner v.
Commissioners, 21 Minn. 33;
Hunter v. Frost, 47 Minn. 1, 49 N.
W. Rep. 327; Smith v. Bell, 44
Minn. 524, 47 N. W. Rep. 263;
Usher v. Moss, 50 Miss. 208; Fin-
ney V. St. Louis, 39 Mo. 177; Quin-
ette V. Carpenter, 35 Mo. . 502;
Bilcher v. Parker, 40 Mo. 113; De-
laney v. Flanagan, 41 Mo. App.
651 ; Yates v. Kinney, 19 Neb. 275 ;
Ketcham v. Ochs, 77 N. Y. Supp.
1130, 70 N. Y. Supp. 268, 34 Misc.
Rep. 470; Ridgeway v. Hannum,
129 Ind. App. 124, 64 N. E. Rep.
44; Bradley v. Covel, 4 Cow. (N.
Y.) 349; Haynes v. Aldrich, 133
N. Y. 287, 31 N. E. Rep. 94, 45 N.
^'. St. Rep. 243. affg. 14 N. Y. Supp.
951; Commisioners v. Clark, 133
N. Y. 251; Clark v. Howland, 85
N. Y. 204; Jackson v. Salmon, 4
Wend. (N. Y.) 327; Moore v. Beas-
ley, 3 Ohio, 294; Laguerenne v.
Dougherty, 35 Pa. St. 45: Logan v.
Herron, 8 S. & R. (Pa.) 459;

140

LAW OF LANDLORD AND TENANT.

under a lease for two years.*^ It is not material as influencing
this construction whether the same rent is paid by the tenant
holding' over as was paid under the lease which had expired.*^
or whether the tenant holding over has agreed to pay an in-
creased rent during the period he continues to hold over.*' In
all these cases the payment of rent creates the tenancy from
year to year. If the rent is paid by the year or so much per
year the inference is almost irresistible that he had in mind a
tefiancy from year to year, but the fact that the rent is payable
semi-annually has in one case at least been held insufficient to
rebut the presumption.** This rule applies to municipal and
other corporations as well as to individuals^ so that a corpora-
tion holding over after the expiration of its lease with the as-
sent of the lessor becomes a tenant from year to year.*^ There
is a presumption of law that a tenant holding over with the
assent of the lessor becomes a tenant from year to year, and such

Hemphill v. Flynn, 2 Pa. St. 144;
Phillips V. Monges, 4 Whart. (Pa.)
229; Simmons v. Jarman, 122 N.
C. 195, 29 S. E. Rep. 332; Gladwell
V. Holcomb, 60 Ohio St. 427, 433,
54 N. E. Rep. 473; Railroad Co.
V. West, 57 Ohio St. 161; Amsden
V. Atwood, 35 Atl. Rep. 311, 67
Vt. 289, 31 Atl. Rep. 448; Noel v.
McCrary, 7 Coldw. (Tenn.) 623;
Emerick v. Tanner, 9 Gratt. (Va.)
220, 58 Am. Dec. 217; Allen v.
Bartlett, 20 "W. Va. 46; Arbenz v.
Exley, 52 W. Va. 476, 44 S. E. Rep.
149; King v. Wilson, 98 Va. 259,
35 S. E. Rep. 727; Baltimore
Dental Ass'n v. Fuller, 101 Va. 627,
44 S. E. Rep. 771; Brown v. Kay-
ser, 60 Wis. 1; Bishop v. Howard,
3 D. & R. 293, 2 B. & C. 100, 1 L.
J. (O. S.) K. B. 243, 26 R. R. 291;
Kelly V. Patterson. 43 L. J. C. P.
320, L. R. 9 C. B. 6S0, 30 L. T. 842;
Cornish v. Stubbs, 39 L. .T. C. P.
202, L. R. 5 C. P. 334, 22 L. T. 21,
18 W. R. 547; Doe d. Clarke v.
Smarridge. 7 Q. B. 957, 14 L. .T.
Q. B. 327, 9 Jur. 781; Doe d. Hol-

lingsworth v. Stennet, 2 Esp. 717;
Doe d. Rogers v. Pullen, 3 Scott,
271, 279, 2 Ring. (N. C.) 749, 2
Hodges, 39, 5 L. J. C. P. 229; Digby
V. Atkinson, 4 Camp. 275, 278;
Finch V. Miller, 5 Com. Bench,
428; Pierce v. Shaw, 2 M. & R. 418;
Bridges v. Potts, 17 Com. Bench
(N. S.), 314, 335; Dougal v. Mc-
Carthy, 4 Reports, 402; (1893) 1
Q. B. 736.

4' Belding v. Texas Produce Co.,
01 Ark. 377, 33 S. W. Rep. 421.

42 Wheat V. Brown, 3 Kan. App.
431, 43 Pac. Rep. 807.

*"■ Zippar V. Reppy, 15 Colo. 260,
25 Pac. Rep. 164, citing Digby v.
Atkinson, 4 Camp. 275, in which
Lord Ellenborough says: "The
mere advance of the rent, in my
opinion, makes no difference."

44 Adams v. Cohoes, 127 N. Y.
175, 28 N. E. Rep. 25, affg. 53 Hun,
260, 6 N. Y. Supp. 617, 25 N. Y. St.
Rep. 523.

45 Artt V. New York, 28 N. Y.
Super. Ct. (5 Rob.) 248.'

TENANCY FROM YEAR TO YEAR,

Ml

presaimption may be rebutted by proof that the holding was in
some other character or for some other purpose.*"

§ 98. Rebutting the presumption which arises on a tenant
holding over. The presumption that a tenant holding over
and paying rent after the expiration of his term, is a tenant
from year to year is as a general rule regarded as only a pre-
sumption of fact and continues only until the contrary is
shown.*^ It may be shown by a landlord who denies that a ten-
ancy from year to year has been created by his receipt of rent
from a tenant holding over, that the landlord accepted or re-
ceived the rent from the tenant under some mistake, misunder-
standing or misapprehension of fact or in ignorance of a mater-
ial fact which if it had been known to him at the time he re-
ceived or accepted the rent would have caused him to decline to
receive it.*^ The receipt of rent by the year creates a tenancy
from year to year solely because the law presumes that such was
the intention of the parties. It is presumed that they thereby
contracted for a yearly lease and as an intention is always an
essential element of a contract if there is no intention there is

46 Williamson v. Paxton, 18
Gratt. (Va.) 475. The silence of
the landlord where a tenant for
a year holds over may and in fact
in most cases as has been set forth
in the text create a tenancy for an-
other year and so on from year to
year. But this rule does not apply
to the case of a tenant whose term
i.s for a very short period only,
less than year holding over with
the acquiesence of the landlord
and upon the tenant promising to
pay rent at the same rate as under
the lease which has expired. Mont-
gomery V. "Willis, 45 Neb. 434, 63
N. W. Rep. 794. A tenancy from
year to year, beginning on the first
day of November, is created,
where by an oral lease of premises
situated in New York city it is in
express terms agreed that the hir-
ing shall be for one year from the
first day of November, and the ten-

ant remains in possession for a
number of years without any fur-
ther agreement between the par-
ties. 3 Rev. St. N. Y. (7th ed.)
p. 2200, § 1, does not apply to such
a case. Laimbeer v. Tailer, 125 N.
Y. 725, 26 N. E. Rep. 756, affg. 4
N. Y. Supp. 588, 21 St. Rep. 380.

47 Secar v. Pestana, 37 111. 525;
Dubuque v. Miller, 11 Iowa, 583;
Brewer v. Knapp, 1 Pick (Mass.)
332; Quinnette v. Carpenter, 35
INIo. 502; Grant v. White, 42 Mo.
285; Darrill v. Stevens, 4 McCord
(S. C.) 39; Moore v. Beasley, 3
Ohio, 294; Sheldon v. Davey, 42
Vt. 637; Stedman v. Gassett, 18
Vt. 346; Williams v. Paxton, 18
Gratt. (Va.) 475; Mayor of Thet-
ford V. Tyler, 8 Q. B. 95.

48 Doe d. Lord v. Crago, 6 Com.
Bench, 90, 98; Oakley v. Monck, 3
H. & C. 706.

142 LAW OF LANDLORD AND TENANT.

no lease. The parties are permitted to show what was the true
intention by any relevant evidence and the true intention when
proved ma\^ overcome the implied intention.*^ The right of
the landlord to rebut the presumption as against the tenant nec-
essarily confers upon the tenant the reciprocal right to rebut the
presumption of a tenancy from year to year as against the land-
lord seeking to recover rent from him upon the assumption that
he is a tenant from year to year. If on the termination of a
lease for a definite period the landlord expresses no intention
of leasing the premises to the tenant for a new definite period
but simply permits him to remain in possession and to pay rent
as before, he is a tenant from year to year. If, however, at or
before the expiration of the lease the landlord informs the ten-
ant that he will not be allowed to occupy the premises after tht
expiration of the term except as tenant from month to month,
no implied tenancy from year to year will arise, for an implied
tenancy arises only from the presumed intention of the parties
where they are silent and where they permit the facts and cir-
cumstances of the case to speak for them and where the land-
lord expressly states his intention and the tenant is silent, the
tenant will be presumed to have assented to the proposition.^'"
§ 99. The modification of the terms of the original lease as
against a tenant holding over. The presumjitiou that the ten-
ancy from year to year which arises from a tenant holding over

49 "When a tenant, whose term the part of the landlord from

has expired by efflux of time, in- which a renewal of the contract

stead of quitting the premises as may be implied, the person in pos-

he ought to do, remains in posses- session continues a wrong-doer, is

sion, holding over as it is called, liable to be treated as such and

he is g. wrong-doer and may be must attribute to his original

treated as such by the owner, his wrong and subsequent folly, any

landlord. By the consent of his inconveniences which may ensue,

landlord, his tenancy may be con- The mere unbroken silence and in-

tinued, and if such continuance by action of the owner will not im-

consent be without any fixed limit, prove or enlarge the character of

he becomes a tenant from year to the tenant's possession." By the

year, as it is called. This consent court, Ewing, C. J., in Den ex dem.

may be either express or inii)lied; Decker v. Adams, 12 N. J. Law,

actual or constructive by words or 99, on page 100.

by some act recognizing or treat- •'''" Shipmau v. Mitchell, G4 Tex.

ing him as a tenant. But without 174.
a new contract, or some act on

TENANCY FROM YEAR TO YEAR. 113

is on the same terms as to rent, etc., as was the oriyinal lease,
may be overcome by clear proof that the parties to the original
lease on or before its expiration agreed that the rent should be
modified on the holding over. The presumption that a tenant
holding over with the consent of the landlord is a tenant at will,
or from year to year, as the case may be. upon the same terms
so far as the amount of rent is concerned as he had under the
original lease is conclusively rebutted if it is shown that a new
agreement was made to pay an advanced rental during the hold-
ing over. And if either after or prior to the termination of the
lease the landlord informs the tenant that in case he holds over
after the expiration of an existing term a greater rent will be
expected from him than he has paid under the original lease,
and the tenant holds over iwthout saying anything in reply co
the landlord's demand or notice for an advanced rent, his con-
tinuing in possession taken in connection with his silence will
be regarded as an assent on his part to pay the advanced rental. ^^
AVhere a tenant holding under a lease in writing from year to
year is told by his landlord during any one of the yearly periods
that his rent will be greater on the ensuing year and he there-
after holds over, it will be conclusively presumed that he has
agreed to pay an increased rental and the terms of his lease will
be modified accordingly. He will thereafter be liable to pay the
increased rent from year to year so long as he continues to hold
unless the rental contract is again modified by a restoration of
the rent to the original figure.^- So, if a tenant is told by his
landlord before the expiration of his tenn that if he remains

51 Hunt V. Bailey, 39 Mo. 257. tantamount to saying 'I will con-
See, also, Roberts v. Hayward. 3 tinue in on the terms of your pro-
Car. & P. 432, in which the court posal.' I am of the opinion that
by Best, C. J., said on page 433: under the circumstances the di.s-
"The tenancy under the agreement tress was regular. I think the
expired at midsummer, 1826. Im- landlord had the right to make
mediately after that time, the any terms he pleased for the time
plaintiff (the tenant) was a tres- subsequent to Lady's Day, 1827,
passer but the landlord was not and if the plaintiff would not ac-
obliged to treat him as such, but cept them, to turn him out of pos-
might make proposals to him to session."

renew the relation of landlord and 52 Moore v. Harter. 67 Ohio St.

tenant between them. This he did 250, 65 N. E. Rep. 883: Thompson

and the plaintiff did not say 'I will v. Sanborn, 52 Mich. 141.
go out directly.' His silence is

144 LAW OF LANDLORD AND TENANT.

thereafter he will have to pay an increased rent which is dis-
tinctly specified, the tenant becomes liable for the rent for an-
other year at the increased rate though on the notice of the in-
crease of the rent he has notified his landlord that he remains
under protest and only until he can secure another place.^^ The
tenant's conduct in continuing in possession after notice by tlie
landlord is an acceptance of the landlord's proposition. An ad-
vance or a reduction of the rent made by agreement or by as-
sent on the part of the tenant does not always conclusively rebut
the presumption or implication that a tenant holding holds over
under the terms of the former lease so far as such terms are ap-
plicable to the new holding. An agreement for an alteration of
the rent on holding over, nothing else being said by either party,
does not necessarily amount to a new demise which will render
inadmissable the terms and the facts and circumstances of the
original letting. Though the tenant holding over does not ac-
tually hold under the original lease which has expired, still,
where the parties have made no new arrangements after the
original lease has terminated except to alter the amount of rent
which is to be paid, the law will imply that they had at all times
the terms and provisions of the old lease in mind and that they
made their new arrangement with reference to it. The landlord
cannot sue a tenant holding over after the expiration of the
original lease on any covenant of it, where any of the implied
covenants are broken during the new holding, but he may sue him
in assumpsit for rental and the former lease should be received in
evidence to show the character of the covenant which it is claimed
to have been implied. °* The periods at which the rent is pay-
able under the original lease, whether yearly, monthly or other-
wise will determine when the rent shall be payable under the
lease implied from the holding over.°° And in conclusion it
should be sjiid that the presumption that a tenant Avho holds
over is holding over upon the terms of the original lease is not
rebutted by proof of a different intention on the part of the

c3 Brinkley v. Wolcott, 10 Heisk. ■■•• Conway v. Starkweather, 1

(Tenn.) 22. Den. (N. Y.) 113; Dorrlll v. Ste-

o*Digby V. Atkinson, 4 Camp. vens, 5 McCord (S. C.) 49.
276, 27.S; Monck v. Geekle. 9 Ad.
& El. 841.

TENANCY FROM YEAR TO YEAR. 145

tenant alone which is not communicated to or assented in by the
landlord.'"

§ 100. Holding over — Excused when caused by action of the
Board of Health. The power of Boards of Health conferred
upon them by legislative enactment under the exercise of the
police power to regulate the care and transportation of persons
ill with infectious or contagious diseases is very broad and far
reaching. In the state of New York and perhaps in most of the
states of the Union which have adopted codes of sanitary rules
and regulations, the isolation of such persons is strictly en-
joined. It is provided that all communication with a house or
famil}^ infected with any contagious, infectious or pestilential
disease may be forbidden by a Board of Health, except by
.means of physicians, nurses or messengers, to carry the neces-
sary advice, medicines or provisions to the afflicted. The Board
of Health has jurisdiction to act summarily in determining
whether a condition of affairs has arisen which will justify it in
forbidding general access to or egress from the infected prem-
ises; its action, though open to judicial review in a direct pro-
ceeding to which the board is a party, cannot be questioned in
a collateral proceeding. A landlord knows, or rather, in law, he
will be presumed to know the law in this respect and the parties
to a lease will be presumed to have contracted with reference to
the existence of the law giving Boards of Health such discre-
tionarj' powers, and they will be presumed to have had in view
in contracting any contingency which would give occasion for the
exercise of such powers. Hence a holding over which is invol-
untary for the reason that the tenant is prevented from remov-
ing by the orders and direction of the Board of Health will not
be equivalent to a renewal of the lease by the tenant nor will the
landlord be permitted to recover double rent under a statute
providing for double rent in a case of a holding over by a tenant
after he has given notice that he will quit.^^

66 Chicago V. Peck, 196 111. 260, ner. 99 111. 151. 165. See Hunt v.

63 N. E. Rep. 711, afg. 98 111. App. Railey, 39 Mo. 257.
434; Board of Directors of Chi- st Haynes v. Aldrich, 133 N. Y.

cago Theological Seminary v. Chi- 2S7, 31 N. E. Rep. 94; Herter v.

cago Veneer Co., 94 111. App. 492; Mullen, 9 App. Div. 593, 41 N. Y.

Clinton Wire Cloth Co. v. Card- S. 708.

10

146 LAW OF LANDLORD AND TENANT.

§ 101. Statutory modification of the rule that a holding over
creates a tenancy from year to year. The common law rule
that, where a tenant for years holds over, and continues to pay
rent, a tenancy from year to year is established, is abrogated by
statute in some states. Thus in Iowa, it is enacted by statute
that any person in possession of land with the assent of the
owner is presumed to be a tenant at will until the contrary is
shown.^^ Where such statutes exist a mere tenancy at will is
created by a tenant holding over in the absence of proof of a
special contract to the contrary, though he may pay rent by the
year. So, also, where a statute expressly provides that the time
agreed on in a definite letting shall be the termination thereof
for all purposes and the premises are leased in express terms
for one year, a tenant who holds over after the expiration of
the year becomes a tenant at sufferance only and not a tenant
from year to year.^®

§ 102. Tenancies from year to year created by leases void
under the statute of frauds. A tenancy from year to year may
be created by a tenant going into possession of land and paying
rent computed by the year under a parol lease for a term of
years when the lease for years is void as such under the statute
of frauds.^*^ On the entry of the tenant into possession, the

6S O'Brien v. Troxel, 76 Iowa, v. Newton, 23 N. J. Law, 111;

760, 40 N. W. Rep. 704. Loughran v. Smith, 75 N. Y. 205;

59 Wood V. Page, 24 R. L 594, 54 Craske v. Cliristian Union Pub.
Atl. Rep. 372. Co., 17 Hun (N. Y.), 319; Fried-

60 Lockwood V. Lockwood, 22 lioff v. Smitti, 13 Neb. 5, 12 N. W.
Conn. 425; Strong v. Crosby, 21 Rep. 820; Humphrey Hardware
Conn. 398; Stewart v. Apel, 5 Co. v. Herrick, 5 Neb. (unof.) 524,
Houst. (Del.) 189; Cady v. Quar- 99 N. W. Rep. 233, 234; Schneider
terman, 12 Ga. 386; "Western v. Lord, 62 Mich. 141, 28 N. W.
Union TeL Co. v. Fair, 52 Ga. 18; Rep. 773; Schuyler v. Leggett, 2
Swan V. Clark, 80 Ind. 57; Nash Cow. (N. Y.) 660; Reeder v. Sayre,
V. Beckmen, 83 Ind. 536; Coan v. 70 N. Y. 180, 184; Condert v. Cohn,
Mole, 39 Mich. 454; Huntington US N. Y. 309, 313, 23 N. E. Rep.
V. Parkhurst, 87 Mich. 38, 49 N. 298, aff'g 43 Hun, 454, 6 N. Y. St.
W. Rep. 597; Delaney v. Flanagan, Rep. 733; Baltimore, etc., R. Co.
41 Mo. App. 651; Hosli v. Yokel, v. West, 57 Ohio St. 161, 49 N. E.
58 Mo. App. 169; Ridgley v. Still- Rep. 344; Rosenblat v. Perkins,
well, 28 Mo. 40; Goodfellow v. ]8 Or. 156, 22 Pac. Rep. 598; Thur-
Noble, 25 Mo. 60; Kerr v. Clark, ber v. Dwyer, 10 R. I. 355, 357;
19 Mo. 132; Scudly v. Murray, 34 Hellams v. Patton, 44 S. C 454, 22
Mo. 420, 86 Am. Dec. 116; Drake S. E. Rep. 608; Matthews v. Hipp,

TENANCY FROM YEAR TO YEAR.

U7

parol lease, though it be invalid so far as the creation of a term
in writing is concerned, creates a tenancy at will and is also
recognized as indicating the intention of the parties as regards
all other conditions and terms of the original letting. The
amount of the rent fixed in the parol lease will be the rent
which the tenant must pay, in the absence of an express agree-
ment to the contrary, and generally all the covenants and condi-
tions which are contained in the void oral lease except those
which fix the term of the letting, will regulate the hiring from
year to year.^^ A person who had entered upon premises under
a lease which is void under the statute of frauds is merely a
tenant at will. His continuing in possession for over a year
after the date of his entry' and also his paying rent upon a yearly
basis turns his holding into a tenancy from year to year."^
Generally the payment of the rent for one year at a yearly rate
with a holding over by the tenant after the expiration of the
first year will constitute the tenancy a tenancy from year to
year.®^ Tenancies for other periods, as for example, by the

66 S. C. 162, 44 S. E. Rep. 577;
Doe d. Rogers v. Pullen, 3 Scott,
271, 2 Ring. (N. C.) 749, 2 Hodges,
39, 5 L. J. C. P. 229; Dicke v. Har-
per, 6 Yerg. (Tenn.) 2S0; Rerrey
V. Lindlej^ 3 INIan. & G. 496;
Thunder v. Relcher, 3 East, 449;
Clayton v. Rlahey, 8 Term Rep. 3,

4 R. R. 575; Doe d. Rigge v. Rell,

5 Term Rep. 471, 2 R. R. 642.

61 Baylies v. Ingram, 84 A. D.
360, 82 N. Y. Supp. 891; Coudert
V. Cohn, 118 N. Y. 309, 313, 23 N.
E. Rep. 298, aff'g 43 Hun, 454, 6
N. Y. St. Rep. 733; Reeder v.
Sayre, 70 N. Y. 180, 184; Richard-
son V. GifEord, 1 Ad. & El. 52; Doe
V. Collings, 7 C. B. 939; Tress v.
Savage, 4 El. & B. 36; Lee v.
Smith, 9 Exch. 662; Martin y.
Watts, 7 T. R. 83; Riggs v. Bell,

5 T. R. 471; Clayton v. Blakely,
8 T. R. 3; Pennington v. Taniere,
12 Q. B. 998; Arden v. Sullivan.
14 Q. B. 832; Doe v. Amey, 12 Ad.

6 El. 476.

62 Mathews v. Hipp, 66 S. C.
102, 44 S. E. Rep. 577.

63 "Though the agreement is void
by the statute of frauds as to the
duration of the lease, it must reg-
ulate the terms on which the ten-
ancy subsists in other respects, as
to the rent, the time of the year
when the tenant is to quit, etc.
So, where a tenant holds over
after the expiration of his term,
without having entered into any
new contract, he holds upon the
former terms. Now, in this case,
it was agreed that the tenant
should quit at Candlemas; and,
though the agreement is void as
to the number of years for which
defendant was to hold, if the
lessor choose to determine the
tenancy before the expiration of
the seven years he can only put an
end to it at Candlemas." By Lord
Kenyon in Doe d. Rigge v. Bell, 5
T. R. 471.

148 LAW OF LANDLORD AND TENANT.

month, or by tlie quarter, may be created by an entry into pos-
session under a lease which is invalid under the statute of frauds
and a payment of rent with reference to a particular period
short of a year. So, a tenancy from month to month is created
by the acceptance of rent under a lease void under the statute
of frauds, where the rent is payable monthly,®* and the tenant
goes into possession. For a reservation of rent in the void lease
according to a particular period may convert a holding under
the void lease into a monthly or yearly tenancy according to the
circumstances. But it has been held that the rule that an an-
nual reservation of rent is necessary to turn a lease for an un-
certain term into a lease from year to year does not apply to a
parol tenancy for years, void under the statute of frauds, where
the rent has been paid in advance, and such tenancy becomes a
tenancy from year to year, though no rent was reserved by the
year.®^ So an oral agreement by which a tenant under a written
lease for five years relets a portion of the premises to his land-
lord for the same term becomes, under the statute of frauds, a
tenancy from year to year.®^^ But a tenancy from year to year
cannot be created by an occupancy for two years under a parol
lease for five years, since such contract is void as one not to be
performed in a year and the relation of landlord and tenant is
not created at all.*'®

§ 103. Tenancies from year to year arising from defective
and unexecuted leases. AVhere a tenant enters and pays a
yearly rent under a lease for a term of years which is void for
any reason, he will be regarded as a tenant from year to year.
Thus, for example, where a long absent owner of property re-
turns and repudiates the lease made by a guardian of his heirs,
on the supposition of his death,®'' or the mortgagee fails to join
in a lease of the mortgaged premises,®^ or a lease for five years
is executed by the tenant alone,^® or a lease is imperfectly exe-

84 Utah L<oan, etc., Co. v. Gar- ee Huglish v. Marvin, 128 N. Y.

butt, 6 Utah, 342, 23 Pac. Rep. 758, 380.

and see, also. Donohue v. Chicago "^ Farley v. McKeegan, 48 Neb.

Bank Note Co., 37 111. App. 552. 237, 67 N. W. Rep. 161.

80 Brant v. Vincent, 100 Mich. 88 Hart v. Stockton, 12 N. J. L.

426, 59 N. W. Rep. 169. 322.

e.'.a Loundsberry V. Snyder, 31 N. "o Loughran v. Smith, 11 Hun

y. 5U. (N. Y.) 3n.

TENANCY FROM YEAR TO YEAR. 14:9

cuted SO that it is void/" or is void because it is unacknowl-
edged.'^^ A tenant who enters into possession of the premises
and pays rent under an agreement for a lease, as he becomes a
tenant from year to year, is thereafter bound by all the cove-
nants mentioned in the agreement for a lease so far as those
covenants are consistent with a lease from year to year.'^^

§ 104. The necessary incidents of a tenancy from year to
year. A tenant from year to year possesses a demisable inter-
est in his term and may sublet for any period less than a year
subject to all the limitations and restrictions which are appli
cable to his own lease, unless expressly forbidden by his lease.
If he or his landlord shall elect to terminate the tenancy from
year to year, all subleases are terminated thereby irrespective
of the fact that otherwise the sublease would have held over af-
ter the termination of any year. The tenant from year to year
may also mortgage his term.'^ He may also, unless expressly
restrained by some agreement not to do so, assign the term which
he has and his assignee takes the estate subject to all the restric-
tions and covenants which were attached to it in the hands of
the original lessee. A tenant from year to year may unques-
tionably sublet a portion of his premises. But where he does
this and then surrenders to his landlord the portion remaining
in his own possession without either receiving a notice to quit
or giving one to his sub-tenant, or surrendering the part occu-

'0 Fougera v. Cohn, 43 Hun (N. was in its form a lease by them

Y.) 454; Carey v. Richards, 2 Ohio not as trustees but as individuals

Dec. 630. only. It was not signed by one

"1 Thurber v. Dwyer, 10 R. I. of the trustees. The tenant, how-

355. The lessee is a tenant from ever, knew that they were trustees

year to year after he has entered and Icnew what power they had to

and paid rent by the year. If he lease. He went into possession

has not paid rent by the year he and occupied the demised premises

would be a tenant at will, and for five years, paying rent by the

after the lease was pronounced year. The lease, of course, was

void perhaps a tenant at suffer- void as a lease by the trustees, but

ance. In Kernochan v. Wilkins, it was held that though it was void

3 App. Div. 596. 38 N. Y. Supp. as a lease for the full term, yet

236, 78 N. Y. St. Rep. 853, the cir- it created a valid lease from year

cumstances were as follows: Cer- to year.

tain trustees deriving their pow- t2 Doe d. Thompson v. Amey,

ers to lease land from a will made 4 P. & D. 177, 12 A. & E. 476.
a lease for the term of ten years. '3 Burrows v. Gradin, 1 Dowl.

The written instrument of lease & L. 213.

150 LAW OF LANDLORD AND TENANT.

pied by his sub-tenant, the landlord cannot recover rent against
the sub-lessee. There is no privity of contract between the
original landlord and the sub-tenant ; the former shall give no-
tice to quit in his own name for as to the part sublet the original
tenancy still exists '^* as between the primary landlord and his
tenant and the latter continues to be liable for the rent until he
sei'ves a notice to quit or until the landlord accepts a surrender
by the tenant.

§ 105. Tenancies from month to month — Hov^r created. A
tenancy from month to month will generally arise where no defi-
nite term of letting is specified by the parties and the rent is
payable monthly.'^^ So a lease at will with the rent payable in
monthly instalments becomes a tenancy from month to month."^
Such a tenancy also arises where the tenant holds over after the
expiration of a term for years, and pays rent by the month under
a provision permitting the tenant to occupy the premises by
the month after the expiration of the term/'^ or where the ten-
ant was to have the premises as long as he paid the rent thereon,
which was in terms payable monthly, and the landlord was to
have the premises whenever he wanted them.'^^ Similarly an
agreement to let premises for one year from" April 1st, the rent
payable monthly, is simply a tenancy from month to month. '^
So, where a tenant for a term paid a month's rent and took a
receipt for the same commencing at the expiration of the old
term, the new tenancy was from month to month and it was not
a renewal of the expired term.^° An express provision in the
lease that the tenancy may be determinable on a notice of a
month or thirty days may sometimes determine the length of
the term of a letting^ as, for instance, a parol agreement made

74 Pleasant Lessee of Hayton v. "" McDevitt v. Lambert, 80 Ala.

Benson, 14 East, 234. 536, 2 So. Rep. 438; Shirk v. HofE-

70 Hurd V. Whitsett, 4 Colo. 77; man, 57 Minn. 230, 58 N. W. Rep.

Wall V. Kllman, 2 Chest. Co. Rep. 990.

(Pa.) 178; Steffens v. Earl, 40 N. 78 Rogers v. Brown, 57 Minn,

J. L. 128; State v. Schertinger, 51 223, 58 N. W. Rep. 981.

N. J. L. 452. 79 Hungerford v. Wagoner, 5

76 Sebastian v. Hill, 51 111. App. App. Div. 590, 39 N. Y. Supp. 369.

272; Lehman v. Nolting, 56 Mo. so Baker v. Kinney (N. J.), 54

App. 549; J. B. Barnaby Co. v. Atl. Rep. 526; Blumenberg v.

Johnston, 28 R. I. 105, 65 Atl. Rep. Myers, 32 Cal. 93, 91 Am. Dec. 560;

613; Rogers v. Brown, 57 Minn. Alworth v. Gordon, 81 Minn. 445,

223, 58 N. W. Rep. 981. 84 N. W. Rep. 454.

TENANCY FROM TEAR TO YEAR. 151

Lgfore the expiration of a lease under seal for the occupation of
the premises after the expiration of the lease until terminated
by thirty days notice, converts the lease into a tenancy from
month to month. ^^ A tenancy from month to month is created
where the term of letting is for one month only and is to expire
at noon on the first day of the following month, and the tenant
holds over.^^ The tenant is thereafter a tenant from month to
month. And an entry into possession under a verbal letting with
an agreement to pay rent by the month, which is void under the
statute of frauds becomes a tenancy from month to month. ^^
For if the term is not fixed in a parol letting, but a monthly
rent is reserved, a tenancy from month to month and not from
year to year usually arises.^* A tenant who occupies the prem-
ises under a lease which is void because the element of mutual-
ity is lacking is a tenant from month to month where he has an
option to terminate the lease by a month 's notice. And this pre-
sumption or construction is very materially strengthened by the
fact that the tenant is to pay rent only for the period he ac-
tually occupies the premises.^^ So also a monthly hiring is
created Avhere a person having made a lease which is invalid un-
der the statute of frauds, goes into possession and pays rent by
the mouth. Ordinarily this would be a tenancy at will but the
circumstance that the tenant pays by the month converts it
into a lease from month to month.®^ Where a tenant for a term
of years has an option to continue in possession as a tenant by
the month at the expiration of his term, the tenant holding over
at once becomes a tenant from month to month." In one or two
states of the Union it is expressly provided by the statute that a
tenant going into possession under a lease which is void under

81 West Chicago, etc., R. Co. v. 1029, 26 L. R. A. 799, affirming, 50
Morrison, 160 111. 288, 43 N. B. 111. App. 415; Utah Loan, etc., Co.
Rep. 393. V. Garbutt, 6 Utah, 342, 23 Pac.

82 Gibbons v. Dayton, 4 Hun (N. Rep. 758.

y.) 451; Stoppelkamp V. Mangeot, 84 Hollis v. Burns, 100 Pa. St.

42 Cal. 316. 206, 45 Am. Rep. 379.

83 Warner v. Hale, 65 111. 395; ss Sigmund v. Newspaper Co., 82
Brownell v. Welch, 91 111. 523; 111. App. 178.

Donohue v. Chicago Bank Note so Sebastian v. Hill, 51 111. App.

Co., 37 111. App. 552; Blake v. 272.

Kurrus, 41 111. App. 562; Marr v. 87 McDevitt v. Lambert, SO Ala.

Ray, 151 111. 340, 37 N. E. Rep, 536, 2 So. Rep. 438.

152 LAW OF LANDLORD AND TENANT.

the statute of frauds shall be taken and regarded as a tenant
from month to month.^^ The fact that rent is payable quarterly
and that the tenant gives security to pay one quarter's rent in
advance, is conclusive that the tenancy is a quarterly tenancy
and not a tenancy from year to year.^^

§ 106. Tenancy from month to month by holding over. A
tenancy from month to month may be created by holding over.
Thus a tenant under a lease for one month ^\\\o holds over with
the consent of his landlord and pays rent thereby creates a ten-
ancy from month to month which can only be terminated upon
one month's notice to quit.*^" And in Missouri a tenant of prem-
ises located in any city by holding over becomes under the stat-
ute a tenant from month to month.'*" Similarly where a tenant
remained in possession of certain property two months after the
expiration of his term, paying rent each month at the rate pro-
vided for in the lease, a mere tenancy from month to month is
created.®^ And a lease of premises for a certain term at a
monthly rental, under which the tenant holds over for several
months without a new agreement, paying the same rent consti-
tutes such tenant a tenant from month to month. ^- AYhere the
lease specially provides that after the expiration of the term the
holding shall be from month to month, the tenancy is one from
month to month.''^ The fact that a tenant is distinctly told that
if he holds over it must be as a tenant from month to month, a
tenancy from month to month is created and no other contract
of letting can be implied."*

•s^Delany v. Flanagan, 41 Mo. oiShipman v. Mitchell, 64 Tex.
App. 651. 174. A tenant who enters under
88 Wilkinson v. Hall, 4 Scott, a parol demise which is void under
301, 3 Bing. (N. C.) 508, 3 Hodges, the statute of frauds and pays rent
&6, 6 L. J. C. P. 82. by the year becomes thereby a ten-
se Stopplekamp v. Mangeot, 42 ant from year to year, and the
Cal. 316; Shirk v. Hoffman, 57 terms of the agreement, though It
Minn. 230, 58 N. W. Rep. 990. is void, is permitted to regulate

90 Drey v. Doyle, 28 Mo. App. all the other incidents of the ten-
249; Smith v. Smith, 62 Mo. App. ancy from year to year, as, for ex-
596, 1 Mo. App. Rep. 580. ample, the date when the yearly

91 Backus V. Sternberg, 59 Minn. rent shall be payable, the amount
403, 61 N. W. Rep. 335. of the rent and the time of the

92 Branton v. O'Briant, 93 N. C. year when the tenant must quit.
99. Schuyler v. Leggatt, 4 Cow. (N.

93Pappe V. Trout, 3 Okl. 260, 41 Y.) 60.
Pac. Rep. 397.

TENANCY FROM YEAR TO YEAR. 153

§ 107. The commencement of the monthly period. The date
iipon which an entry is made upon the demised premises may,
in the absence of an express agreement upon this point, indicate
the day upon which the monthly period of tenancy shall com-
mence. But usually either by custom or by an express agree-
ment between the parties, the month begins with the first day of
the next succeeding month to that in which the tenant moves into
the premises, at least where the tenant does not move in or be-
gin to pay rent on the first of that mouth. So, where a lessee
went into possession on the sixth of the month and paid his rent
up to the first of the following month the period of renting is
from the first day of the month to the first day of the month. ^'

§ 108. The conversion of tenancies from month to month into
tenancies from year to year. Where a tenant enters into
possession of premises under a lease which expressly states that
it is from month to month, the court will refuse to convert his
tenancy into a tenancy from year to year simply because he has
continued in occupation for more than a year.''*^ Similarly where
a tenant from month to month holds over for more than a year,
and the landlord elects to treat him as a tenant, he does not
thereby become a tenant from year to year but continues under
the terms of the former lease so far as applicable, and will pre-
sumptively remain a tenant from month to month in the absence
of a new hiring for a different period.'*'

§ 109. The statutory rules creating a tenancy from month to
month by a holding over. An exception to the general rule
that a parol lease, void under the statute of frauds, or a holding
over creates a tenancy from year to year has been created by
statute in some states of the Union. Thus in Missouri it is pro-
vided by statute that oral lettings of stores^ shops, houses, tene-
ments and other buildings in cities, towns, and villages shall be
tenancies from month to month.^* Hence where a lease of such
premises which is invalid under the statute of frauds is made
or where a tenant of such premises holds over after the termina-
tion of a lease for a definite period, he is a tenant from month
to month under the statute. The statute being in derogation of

05 Ver Steeg v. Becker-Moore o" Hollis v. Burns, 100 Pa. St.

Paint Co. (Mo. App., 1904), 80 206.

S. W. Rep. 346. »« Missouri Rev. St. 1879, § 3078.

9c Jones V. Willis, 53 N. Car. 430.

.154 LAW OF LANDLORD AND TENANT.

the common law will be strictly construed and it lias been held
inapplicable to the oral letting of land in a city, the buildings
on which are the property of the tenant.®^ There is a somewhat
similar statute in Louisiana applicable to estates which are
usually tenancies at will. By the Louisiana statute it has been
expressly provided that "if the renting of a house or other edi-
fice or an apartment has been made without fixing its duration,
the lease shall be considered to have been made by the month." ^
The effect of this statute is to make a holding over after the ex-
piration of a tenn, in the absence of a new agreement, a mere
tenancy from mouth to month. -

§ 110. Tenancies from week to week. It is very well settled
that there maj^ be a tenancy from week to week of land leased
This is aside from the letting of furnished rooms or apartments
as lodgings where the rent is paid weekly and the occupant is
a licensee. Whether a letting is from week to week in the ab-
sence of an express stipulation in the lease to that effect, depends
largely upon the facts and circumstances in each case, the most
important of which are the character and condition of the prem-
ises and the purpose for which they are to be used by the tenant.
The payment of rent by the week is a suggestive fact though
by no means conclusive. Where the contract is silent the court
may imply a tenancy from week to week exists from the fact
that the leased premises were a furnished house and that noth-
ing was said in the lease about a quarterly letting or periodical
payment of rent.^ Obviously no such implication of a weekly
tenancy would usually arise in the case of an unfurnished house
or in the case of the leasing of agricultural lands because the
obvious purpose of the occupation of the tenant would be nulli-
fied by presuming a weekly hiring. Where the letting of prem-
ises was expressly from week to a week, a stipulation in the lease
that after the expiration of the tenancy by the usual week's no-
tice to quit the tenant shall have a reasonable time after the ex-
piration of the term to remove his goods is valid. It operates
also as a quasi extension of the term so as to give the tenant a

»8 Delany v. Flanagan, 41 Mo. 17; Dolese v. Barbreat, 9 La. Ann.

App. 651. 352; Marmiche v. Roumieu, 11 La.

1 La. Code Act, § 2655. Ann. 477.

2 Bowles V. Lyon, 6 Rob. (La.) 3 Towne v. Campbell, 3 Com.
262; Gehabee v. Stanly, 1 La. Ann. Bench, 921.

TENANCY FROM TEAR TO YEAR. 155

right to enter and to do what is necessary to effect the removal.*
but obviously does not permit him to hold over from week to
week. A provision that rent shall be payable at the rate of so
much per week may indicate a weekly hiring-, but where it is
also provided that the rent is not to be increased during a par-
ticular period, the presumption of a tenancy from week to week
is overcome.^

§ 111. The necessity for a notice to quit at the common law.
At the common law a notice to quit must usually be given by the
landlord prior to bringing ejectment in all cases of a tenancy
from year to year.* If, however, a lease is to end on a precise
date, as where it is for one year or for a term of years, no notice
to quit is required to be served by the landlord before bringing an
action for ejectment.'^ A tenant for a definite term is not en-
titled usually to a notice to quit. AYhere a lease has a definite
time to run, or the term is to end at a certain time, a notice to
quit is not necessary.^ In the case of a lease for a year or for a
term of years, which is to expire on a day certain and fixed, no
notice to quit is required to be served upon the tenant by the
landlord but the term expires by its own limitation, and, as soon
as the end of the term arrives, the landlord has a right to re-en-
ter without delay or notice.^ So. too, where by the express terms

* Cornish v. Stubbs, 39 L. J. C. Thomas v. Wright, 9 Serg. & R.

P. 202, L. R. 5 C. P. 334, 22 L. T. (Pa.) 87; Rich v. Keyser, 54 Pa.

21, 18 W. R. 547. St. 86. But see Nelson v. Ware,

5 Adams v. Cairns, 85 L. T. 10. 57 Kan. 670, 47 Pac. Rep. 540.

6 Hollingsworth v. Stennett, 2 ^ Cobb v. Stokes, 8 East, 358, 9
Esp. 717, 5 R. R. 769; Martin v. R. R. 464; Messenger v. Arm-
Watts, 7 Term Rep. 83, 2 Esp. 501, strong, 1 T. R. 54. 1 R. R. 148;
4 R. R. 387; Moore v. Lawder. 1 Flower v. Darby, 1 T. R. 162, 1 R.
Stark. 308; Warner v. Brown, 8 R. 169; Tilt v. Stratton, 4 Bing.
East, 166, 9 R. R. 397; Thomas v. 46, 1 M. & P. 183, 3 Car. & P. 164,
Black, 8 Houst. (Del.) 507, 18 Atl. 6 L. J. (O. S.) C. P. 50. See Cox
Rep. 771; Coomber v. Hefner, 86 v. Sammis, 68 N. Y. Supp. 203.
Ind. 108; Elliott v. Stone State s Young v. Smith, 28 Mo. 65;
Bank, 4 Ind. App. 155, 30 N. E. Stephen v. Brown, 56 INfo. 23.
Rep. 537; Moshier v. Kedwig, 12 » Canning v. Fibush, 77 Cal. 196,
Me. 478; Grant v. White, 42 Mo. 198, 19 Pac. Rep. 376; Craig v.
App. 285; Hosli v. Yokel, 58 Mo. Graj^ 1 Cal. App. 598, 82 Pac. Rep.
App. 169; Jackson v. Bryan, 1 699; Reithman v. Brandenburg, 7
Johns. (N. Y.) 322; Jackson v. Colo. 480, 4 Pac. Rep 788; Walker
Salmon, 4 Wend. (N. Y.) 327; v. Ellis, 12 111. 470; Brownell v.
AVilliams v. Ackerman, 8 Or. 405; Walsh, 91 111. 523; Fort r. Mc-

156

LAW OF LANDLORD AND TENANT.

of a lease the tenure of the tenant is to come at once to an ena
upon the happening of some contingent event, no notice to
quit is essential and the term is absolutely at an end upon the
occurrence of the event. Thus where it was agreed by an ex-
press provision in the lease of a mill that the term should end
in case the machinery should break down no notice to quit is
required and the term is at an end at once as soon as the machin-
ery breaks down.^° ' But the right of the tenant under a lease
from year to year to receive notice to quit and the reciprocal
obligation of the landlord to give such notice are inseparable
and essential incidents of the tenancy. The tenant may by his
own conduct or by his acquiescence in and assent to, conduct on
the part of the landlord, waive his rights to a notice to quit at
the end of the current year. Such would be the case where the
tenant abandoned the premises during the year and refused to
pay rent for them. Indeed it has been held that a notice to
quit is required to be given the tenant though the lease from

Grath, 7 111. App. 302; Frank v.
Taubman, 31 111. App. 592; Alcorn
V. Morgan, 77 Ind. 184, 786; Mc-
Clure V. McClure, 74 Ind. 108, 110;
Myerson v. Neff, 5 Ind. 523;
Thomas v. Walmer, 18 Ind. App.
112, 46 N. E. Rep. 695; Hamit v.
Lawrence, 2 A. K. Marsh. (Ky.)
366; Locke v. Coleman, 2 T. B.
Mon. (Ky.) 12, 15, 15 Am. Dec.
18; Bowles v. Lyon, 6 Rob. (La.)
262; Chesley v. Welch, 37 Me. 106,
109; Preble v. Hay, 32 Me. 456;
Clapp V. Paine, 18 Me. 264, 265;
Stockwell V. Marks, 17 Me. 455, 35
Am. Dec. 266; Darrell v. Johnson,
17 Pick. (Mass.) 263; Danforth v.
Sargeant, 14 Mass. 491; Ellis v.
Paige, 2 Pick. (Mass.) 71; Wilson
V. Wodd (Miss. 1904), 36 So. Rep.
609; Mastin v. Metzinger, 99 Mo.
App. 613, 616, 74 S. W. Rep. 431;
Horner v. Leeds, 25 N. J. Law,
106; Steffens v. Earl, 40 N. .L Law,
128, 133, 29 Am. Rep. 214; Allen
V. Jaquish, 21 Wend. (N. Y.) 628;
Gibbons v. Dayton, 4 Hun (N. Y.)

45; Logan v. Herron, 8 S. & R.
(Pa.) 459; Cobb v. Stokes, 8 East,
358; Right v. Darby, 1 T. R. 159;
Adams v. City of Cohoes, 53 Hun,
260, 6 N. Y. Supp. 611; Logan v.
Herron, 8 Serg. & R. (Pa.) 459;
Lane v. Nelson, 167 Pa. St. 602,
31 Atl. Rep. 864, 865; Mounts r.
Goranson, 29 Wash. 261, 69 Pac.
Rep. 740; Williams v. Bennett, 26
N. C. 122. Notice to quit is not
usually required upon the expira-
tion of a term of one year. But
where a notice in writing is ac-
tually given by the landlord it
may be admitted in evidence in
an action by him to recover the
possession brought subsequently
to the expiration of the term.
Snideman v. Snideman, 118 Ind.
162, 20 N. E. Rep. 723. One who
occupies land under a mere license
is not entitled to notice to quit,
but can be ejected by the owner.
Johns V. McDaniel, 60 Miss. 486.

10 Scott V. Willis, 122 Ind. 1, 22
N. E. Rep. 786.

TENANCY FROM YEAR TO YEAR. 157

year to year expressly provides that tlie term is to continue so
long as the rent is paid.^^ A distinction has been mac'e by the
authorities as to the necessity for a notice to quit between that
class of cases where the tenancy is of an indefinite duration or
for an indefinite number of years as was the universal character
of these tenancies from year to year in their original condition ;
and the class of tenancies from year to year which arises when
a tenant holds over with the consent of his landlord after the
expiration of a definite term. In the former class of cases, and
particularly where the premises consisted of agricultural land,
a six months' notice to quit was required from the landlord be-
cause of the fact that the tenant from year to year could not
otherwise know at any time during the existence of his holding
when his landlord might determine it. In theory a tenant
from year to year under an indeterminate lease has in each cur-
rent year a growing interest in the year next ensuing, which
cannot be arbitrarily destroyed by his landlord without notice
to quit. Where, however, a tenant holds over after the expira-
tion of a definite term, and by so doing creates a tenancy from
year to year, no year of the tenancy thus created by holding
over arises out of or is connected with the year which precedes
it but each year of the holding over creates a new and separate
contract for a year between the parties which, being for a fixed
and definite period may, according to the rule, be terminated
without notice. The assent of both parties to the original lease
is necessary to create the new lease from year to year by holding
over. This assent on the part of the tenant is usually implied
from the fact of his remaining in possession and paying rent
after his term has expired. His action in vacating the premises
and not electing to hold over is so clear a m-anifestation of his
intention not to creae a new yearly tenancy that no other notice
on his part is required. And though by remaining in possession
the tenant is presumed to offer to take the premises for another
year, the landlord is not bound to accept the offer, and unless
he does so by accepting rent or otherwise, the tenancy is ter-
minated and notice to quit is not required to be given by him.' =
A notice to quit is not required to be served by a landlord in the

11 Doe d. Warner v. Brown, 8 v. Holcomb, 60 Ohio St. 427, 54 N.
East, 1G5. See, also, as to neces- E. Rep. 473.
sity for a notice to quit, Gladwell 12 Gladwell v. Holcomb, 60 Ohio

158 LAW OF LANDLORD AND TENANT.

case of a lease expressly "for one year" coupled with a further
agreement that the term, might continue as long as the parties
should agree, where the tenant tells his landlord during any one
of the yearly periods that he does not wish to hold for another
year.^^ Generally one who has entered upon land with the con-
sent of the owner to, cultivate it upon shares is a mere cropper
and has no interest as a tenant in the land itself. His possession
is the possession of the owner and his only right under this con-
tract is to have a fair and equitable division of the crop. Hence
he is not usually entitled to notice to quit nor need he serve
notice to quit upon the owner.^'*

§ 112. The length of time required for the notice to quit. At
the common law and in the absence of a statutory requirement
prescribing a different time a six month 's notice to quit is usually
required in the case of tenancies from year to year.^^ It has
also been held that where the parties themselves have failed to
stipulate what shall be the length of the notice to quit the mat-
ter may be regulated by the custom of the locality.^° The cus-
tom must be clearly proved and the burden of proof to show the
custom is upon the tenant alleging its existence. It has also
been held that a notice to quit must be given a reasonable time
before the expiration of the calendar year.'^^ And that the ques-
tion what is a reasonable time to give notice to quit under a lease
from year to year is always a question for the determination of

St. 427, 437, 54 N. E. Rep. 473; 332; Ellis v. Paige, 19 Mass. 71;

Adams v. City of Colioes, 127 N. Murray v. Armstrong, 11 Miss.

Y. 175. But see PeeM v. Bum- 209; Critchfield v. Remaley, 21

balek, 99 Wis. 62, 74 N. W. Rep. Neb. 178, 31 N. W. Rep. 687; God-

745; Robertson v. Simons, 109 Ga. ard v. Railroad Co., 2 Rich. (S.

360, 34 S. E. Rep. 604. Car.) 346 (three months* notice);

13 Dunphy v. Goodlander, 12 Ind. Hanchet v. Whitney, 1 Vt. 311, 315;

App. 609, 40 N. E. Rep. 924. Doe d. Strickland v. Spence, 6

i4Davies v. Baldwin, 66 Mo. East, 120; Bridges v. Potts, 17 C.

App. 577. And compare Teft v. B. N. S. 314, 333; Goode v. How-

Hinchman, 76 Mich. 672, 43 N. W. ells, 4 M. & W. 199; Right v. Darby,

Rep. 680. 1 T. R. 162; Doe v. Porter, 3 T. R.

15 Spalding v. Hall, 6 D. C. 123; 13; Pitcher v. Donovan, 1 Taunt.

Hamitt v. Lawrence, 2 .J. J. Marsh. 555; Martin v. Watts, 7 T. R. 85.

(Ky.) 366; Clapp v. Paine, 18 Mp. I'iRoe v. Charnock, Peake, N. P.

264; Hall v. Myers, 43 Md. 446; C. 4.

Danforth v. Sargeant, 14 Mass. i" Hately v. Myers, 96 111. App.

491; Brewer v. Knapp, 18 Mass. 217.

TENANCY FEOM YEAR TO YEAR. 159

the jury.^^ In one case it was held that half a year's notice to
quit in order to terminate a tenancy at will must be given either
by the tenant or b}" his executor before an action of ejectment
will lie.^® And the fact that the rent under a lease from year to
year is payable quarterly does not dispense with the necessity
for six months' notice to quit.^°^ In the case of tenancies for
periods running less than a year it has been well settled from an
early date that, in the absence of statute, notice to quit is to be
regulated by the term of the letting and must at least be equiva-
lent to one rental period. Short terms less than a year are of
modem origin as compared with terms for years and terms from
year to year. The English judges have admitted that the rule of
less than six months' notice is not based upon any judicial deter-
mination,-" but have recognized and applied it as a custom grow-
ing out of the necessity of the case. For it was impracticable as
well as unfair to both parties to these short terms to require from
either of them the six months' notice that was demanded as a rea-
sonable notice to quit in the case of tenancies from year to year.
Nor was it fair to the parties to apply the rule of a notice of half
the period which was required in the case of yearly holdings to
these much shorter terms. But whatever may be the reason of
the rule it has been repeatedly recognized and held by the courts
of both the United States and England. In the case of a ten-
ancy from mouth to month a notice to quit of at least one month
must be served.-^ The period of the notice to quit in the case

18 Jones V. Spartanburg Herald (by statute Mo. R. S. § 3978);
Co., 44 S. Car. 526, 22 S. E. Rep. Steffens v. Earl, 40 N. J. Law, 128,
731. 134, 29 Am. Rep. 214; Prlndle v.

19 Walker v. Constable, 3 Wils. Anderson, 19 Wend. (N. Y.) 391,
25. 23 Wend. (N. Y.) 616; Hunger-

10 Shirley v. Newman, 1 Esp. ford v. Wagner, 5 App. Div. 590,

266, 5 R. R. 737. 591, 39 N. Y. Supp. 369; People ex

2oHufEell V. Armistead, 7 Car. rel. Botsford v. Darling, 47 N. Y.

& P. 56; Towne v. Campbell, 3 C. 6G6; HollLs v. Burns, 100 Pa. St.

B. 921. 206, 45 Am. Rep. 379; Teater v.

2iMcDevitt V. Lambert, 80 Ala. King, 35 Wash. 138, 76 Pac. Rep.

636, 2 So. Rep. 438; Prickett v. 688, 690; Yesler's Estate v. Orth,

Ritter, 16 111. 96; Seems v. Mc- 24 Wash. 483, 64 Pac. Rep. 723;

Lees, 24 111. 192; Walker v. Sharp, Doe d. Parry v. Hazell, 1 Esp. 94;

14 Allen (Mass.) 43; Greenewald Peacock v. Ruffun, 6 Esp. 4.
V. Schaales, 17 Mo. App. 324, 327

160 LAW OF LANDLORD AND TENANT'

of a monthly tenancy must expire with the end of some monthly
term. The notice must be to quit at the end of the period.-- As
regards the particular day upon which the tenant is notified to
quit, it may be the day which corresponds with the date of the
original letting.-^ If the tenancy begins on a particular day,
the notice must be to terminate on the corresponding day of the
succeeding month.^^* Apparently the notice to quit, in the ab-
sence of a statute, may be to quit on one of the recurring periods
of the holding and if the notice be served on a day of the corres-
ponding date in the preceding month, it will be sufficient.-^ On
the other hand it has been held that a notice directing a monthly
tenant to remove on the day his monthly term expires is both
usual and proper. But a notice directing him to vacate on the
following day is not insufficient or defective. -°

§ 113. The length of the notice to quit in weekly and monthly
tenancies. By some of the English cases it has been laid down
that, in the case of an ordinary weekly tenancy, a notice to quit
is not by implication a part of the contract of hiring unless a
usage to that effect binding on both parties is proved.-^ But the
courts have very frankly admitted the manifest injustice of
turning out a Aveekly tenant without notice to quit though clear-
ly the necessity for notice is neither so apparent nor so urgent
in the ease of a monthly or a weekly tenant as it is in the case
of a tenant from year to year of agricultural land. Hence it
has been held that a week's notice to quit is indispensible and
sufficient in the case of a tenancy from weelc to week and that
such tenanc}" can be terminated only by such notice.-^' And if

22 Fox V. Nathan, 32 Conn. 348; 134, 29 Am. Rep. 214; Baker v.
Steffens v. Earl, 40 N. J. Law, 128, Kenney, 69 N. J. Law, 180, 54 Atl.
135, 29 Am. Dec. 214; Hungerford Rep. 526.

V. Wagner, 5 App. Div. 590, 592, 2g Searle v. Powell, 89 Minn. 278,

39 N. Y. Supp. 369; People ex rel. 94 N. W. 868.

Bottsford V. Darling, 47 N. Y. 666. 27 Towne v. Campbell, 3 Com.

23 Doe d. Eyre v. Lambly, 2 Esp. Bench, 921; Huffell v. Armistead,
635; Kemp v. Derrett, 3 Camp. 7 Car. & P. 56. See, also, Jones v.
510; Roe v. Ward. 1 H. Black. 97; Mills, 10 Com. Bench (N. S.) 788,
Doe V. Weller, 7 T. R. 478; Mills 797; Sandford v. Clarke, 57 L. J.
V. Goff, 14 Mee. & Wei. 72; Doe d. Q. B. 507, 21 Q. B. D. 398, 59 L. T.
Cornwell v. Mathews, 11 C. B. 675. 226.

24 Russell V. McCartney, 21 Mo. 28 steffens v. Earl, 40 N. .T. Law,
App. 544. 128, 134, 16 Atl. Rep. 186; Harvey

25 Steffens v. Earl, 40 N. J. Law, v. Copeland, 30 L. R. Ir. 412; Jones

TENANCY FROM YEAR TO YEAR.

161

it be said that a tenant from week to week is entitled only to a
reasonable notice to quit and the question as to what is a reason-
able notice be left to the jury where it belongs, it cannot be
doubted that they would be guided by evidence of a usage or
give a notice of the length of the term in all cases of weekly or
monthly tenancies and that evidence of such a custom would be
received by the court. "^

§ 114. The statutory regnlations of notice to quit. In many
of the states of the United States the length of time which is
required in the notice to terminate the tenancy is fixed by stat-
ute, and the duty of giving this notice is reciprocal. Hence
either party to the lease who desires to terminate it must cause
the required notice to quit to be served on the other. Iowa, Con-

V. Mills, 10 Com. Bench (N. S.)
788, 30 L. J. C. P. 66, 8 Jur. (N.
S.) 387; Doe d. Peacock v. Raffan,
6 Esp. 4; Bowen v. Anderson
(1894), 1 Q. B. 164, 10 R. 47, 42
W. R. 236, 58 J. P. 213.

20 As to length of notice to quit
in the case of monthly tenancies,
see Doe d. Parry v. Hazell, 1 Esp.
94; and Beamish v. Cox, 16 L. R.
Ir. 270, affirmed, I6 L. R. Ir. 458.

soPulliam v. Sells (Ky., 1906),
99 S. W. Rep. 289. In HufEell v.
Armlstead, 7 C. & P. 56, the court,
by Parke, Baron, said: "The only
question is whether the tenancy
commenced on the Saturday or
Monday. If it commenced on the
Monday, I think the defendant,
who entered on that day, was at
liberty to quit on the same day in
another week. I cannot say a
week has been exceeded by hold-
ing six days and two fractions of
a day. Upon the question of a no-
tice to quit, the law is clearly set-
tled that a yearly tenancy cannot
be determined without a half
year's notice. But that rule can-
not be applied to a weekly taking,
for the effect of it would be to
show that a half week's notice

11

was necessary to put an end to
such a tenancy. I am not aware
that it has ever been decided
that in the cases of an ordinary
monthly or weekly tenancy that
a month's or a week's notice must
be given. A tenant who enters
upon a fresh week may be bound
to continue until the expiration of
that week or to pay the week's
rent, but this is a very different
thing from giving a week's notice
to quit." In Parry v. Hazell, 1
Esp. 94, the tenant took a house
by the month and he had a
month's notice to quit, which the
court held sufficient. In the case
of Peacock v. Ruffin, 6 Esp. 4,
which was an action of ejectment
under a weekly hiring, it appeared
that a week's notice to quite had
been given. As it appeared from
the evidence that the landlord had
agreed to give the tenant four
weeks' notice, he was nonsuited.
Lord Ellenbo rough saying: "A
week's notice is certainly sufficient
where the holding is weekly, but
the rule of law as to the legality
of notice is still controllable by
the agreement of the parties."

162

LAW OF LANDLORD AND TENANT.

necticut, Illinois and Wisconsin require thirty days,'^ Missouri,
sixty days,^- Mississippi, two months,"^ Kentuclry and Oregon,
ninety days.^* Delaware, Indiana, Kansas, INIaine, IMassaeliu setts,
Michigan, Minnesota, New Hampshire, New Jersey, North Caro-
lina, Pennsylvania and Rhode Island require three months' notice
to quit.^^ Virginia requires three months' notice for land within
a town or city and six months for land not so situated ; ^^ Mary-
land requires six month's notice to quit in the counties,^^ while
the North Dakota and Oklahoma statutes provide for notice at
least as long before the expiration of the term as the term of
the hiring itself, not exceeding one month.^^ The other states
have apparently failed to provide by statute the length of time
in which notice must be given to terminate a tenancy from year
to year, so it may be presumed that they follow the common law
requirement as to such notice which is six months.^"

81 Larkin v. Avery, 23 Conn. 304;
Iowa Code 1897, § 2991; S. & B.
Ann. St. § 2187, construed in Peehl
V. Bumbalek, 99 Wis. 62, 74 N. W.
Rep. 545; Cleighton v. Sanders,
89 111. 543.

32 Mo. Rev. St. 1899, p. 987,
§ 4109. A month's notice to quit
will not terminate the tenancy.
Ridgely v. Stillwell, 25 Mo. 570;
Wheat v. Brown, 64 Mo. App. 505,
43 Pac. Rep. 807.

33 Miss. Ann. Code 1892, § 2544.

34 Ky. St. 1894, §§ 2295, 2296;
Misc. Laws Or. Code, § 11, sub. 2,
§ 13, p. 615, in the case of farm
lands. The notice prescribed in
Oregon Code, § 2987, for the ter-
mination of estates at will, applies
also to the termination of estates
from year to year. Rosenblat v.
Perkins, 18 Or. 156, 22 Pac. Rep.
598.

35 Del. Rev. Code 1893, c. 120,
§ 4; Ind. Rev. St. 1881, §§ 5208,
5209, construed in Elliott v. Stone
City Bank, 4 Ind. App. 155, 30 N.
E. Rep. 537; Kan. Gen. St. 1889,
§ 55; Wheal v. Brown, 3 Kan.

App. 431, 43 Pac. Rep. 807; Ware
v. Nelson, 4 Kan. App. 258, 45 Pac.
Rep. 923; Gordon v. Gilman, 48
Me. 473; Withers v. Larrabee, 48
Me. 570 (no statute in this
state). Mass. Rev. Laws 1902,
c. 129, § 12; Mich. Comp. Laws
1897, § 9257; Minn. St. 1894,
§ 5873; Hunter v. Frost, 47 Minn.
1, 49 N. W. Rep. 327; N. H. Rev.
St. c. 209; Currier v. Perley, 24
N. H. 219; N. J. Gen. St., p. 1921,
§ 29; Snowhill v. Snowhill, 23
N. J. L. 447; N. C. Pub. St. 1873,
c. 64, § 9; Vincent v. Corbin, 85
N. C. 108.

36 Va. Code 1887, § 2785; Craw-
ford V. Morris, 5 Gratt. (Va.) 90,
107; Harrison v. Middleton, 11
Gratt. (Va.) 527, 532.

37 Md. Pub. Gen. St. art. 53,
§ 6.

38 N. Dak. Rev. Code, § 4085;
Okl. Rev. Stat., § 868.

30 Goddard v. South Carolina R.
Co., 2 Rich. L. (S. C.) 340; Brown
V. Kayser, 60 Wis. 1, 18 N. W. Rep.
523.

TEN.ysrCY FROM YEAR TO YEAR. 163

§ 115. The necessity and the sufficiency of a notice to quit in
the case of tenancies from month to month. In order to ter-
minate a tenancy from month to month, a notice to quit is usu-
ally necessary. In the absence of a statutory provision or of a
stipulation in the lease requiring a longer notice, a tenant from
month to month is entitled to one month's notice to quif" A
notice to quit given on May 31st to quit within thirty days and
not later than June 30th is sufficient to terminate a monthly ten-
ancy.*^ The notice to quit in the case of a monthly tenancy must
be served before the beginning of the succeeding rental month.
so that a notice served on June 1st is insufficient to terminate the
tenancy on July Ist.^- Where a statute requires the notice to
quit to be given to terminate a tenancy from month to month a
mere tender of the keys of the premises is not equivalent to the
statutory notice.*^ The notice should be to quit at the end of
one of the recurring periods of the holding and if served on the
corresponding date of the preceding month is sufficient.** But
while it is proper to notify a tenant from month to month to
quit on the day upon which his tenancy expires, still the suffi-
ciency of the notice is not affected by the fact that it orders him
to vacate the premises on the day following the last day of the
month.*^

§ 116. The statutory regrdations of the notice to quit in ten-
ancies from month to month. In California in the case of

40McDevitt v. Lambert, 80 Ala. 180, 54 Atl. Rep. 526; Klingenstein

536, 2 So. Rep. 438; Stewart v. v. Goldwasser, 58 N. Y. Supp. 342,

Murrell, 65 Ark. 471, 47 S. W. Rep. 27 Misc. 536; Hungerford v. Wag-

130; Eberlein v. Abel, 10 111. App. oner, 39 N. Y. Supp. 369, 5 App.

626; Donohue v. Chicago Bank Div. 590. But see Teater v. King,

Note Co., 37 111. App. 552; Seem 35 Wash. 138, 76 Pac. Rep. 688.
V. McLees, 24 111. 192; Coffin v. ■" Leahy v. Liebman, 67 Mo. App.

Lunt, 69 Mass. 80; Steffens v. 191.

Earl, 40 N. J. L. 128, 29 Am. Rep. ^2 Corby v. Brill Book, etc., Co.,

214; Rivett v. Brown, 6 Wkly. L. 76 Mo. App. 506.
Bui. (Ohio) 378; Wall v. Ullman, 4-. Minn. Gen. St. 1878, c. 75, § 40,

2 Chest. Co. Rep. (Pa.) 178; Will- construed in Finch v. Moore, 50

lams V. McAnany, 12 Pa. Co. Ct. Minn. 116, 52 N. W. Rep. 384.
191; Banbury v. Sherin, 4 S. D. ** Baker v. Kinney (N. J.), 54

88, 55 N. W. Rep. 723; Fratcher v. Atl. Rep. 526.

Smith, 104 Mich. 537, 62 N. W. 45 Searle v. Powell, 89 Minn.

Rep. 832; Hart v. Lindley, 50 Mich. 278, 94 N. W. Rep. 868.
20; Baker v. Kenney, 69 N. J. L.

164 LAW OF LANDLORD AND TENANT.

monthly tenancies **' fifteen days' notice to quit is required by
statute. In Minnesota,*^ ]\Iissouri,*^ and New Hampshire,*^ the
statutes require the giving of a month's notice to terminate a
montlily tenancy. In Illinois ^'^ and in Colorado a ten days' no-
tice to quit is sufficient in the case of monthly tenancies.^^
Louisiana and Rhode Island require by statute fifteen days'^^
and Marj^land requires a thirty days' notice in the city of Balti-
more.^^ In New York a five days' notice to quit is sufficient both
in yearly and monthly tenancies.^* A government lease of prop-
erty in the District of Columbia can be terminated only by giv-
ing one month's notice and giving up possession of the property
as required by law.^^

§ 117. Notice to quit when required by the express terms of
the lease. In some cases the parties to a written lease in ex-
plicit terms provide for the notice to quit. A provison in the
lease for a notice to quit supersedes the statutory require-
ment for such a notice in the absence of a direction to the con-
trary by the parties to the lease. Thus the parties will be bound
to give a notice to quit according to the character of the notice
mentioned in the lease though it may differ in the length of time
from the period mentioned in the statute. So, if the lease re-
quires a thirty day notice to quit to be given on the sale of the
premises by the landlord, such notice must be given though the

*c Civil Code, § 827; McDonough Edmundson v. Preville, 12 Colo.

V. Starbird, 105 Cal. 15. App. 73, 54 Pac. Rep. 394.

4TGen. St. 1878, c. 75, § 40; 02 La. Civ. Code, art. 2655, con-
Shirk V. Hoffman, 57 Minn. 230, strued in Bowles v. Lyon, 6 Rob.
38 N. W. Rep. 990. (La.) 262; R. I. Pub. St., c. 232,

4«Mo. Rev. St. 1879, § 3078; § 3; Comstock v. Cavanagh, 17 R.
Withnell v. Petzold, 104 Mo. 409; I. 233, 21 Atl. Rep. 498.
Smith v. Smith, 62 Mo. App. 556, ss Md. Code, art. 4, §§ 885, 886,
1 Mo. App. Rep. 580; Drey v. construed in Kinsey v. Minneck,
Doyle, 28 Mo. App. 249; Gunn v. 43 Md. 112. A tenant in the en-
Sinclair, 52 Mo. 327; Koken Iron joyment of premises of which he
Works v. Kinealy, 86 Mo. App. is in rightful possession and enti-
199. tied to remain in such possession

*o Blair v. Macon, C4 N. H. 4^87. will be duly protected by a court

50 Eberlein v. Abel, 10 111. App. of equity until he is served with

626. statutory notice to quit. Hately

61 Mills Ann. St., § 1976, con- v. Myers, 96 111. App. 217.

strued in Salomon v. O'Donnell, 54 Code Civ. Proc. § 2231.

5 Colo. App. 35, 36 Pac. Rep. 893; ■" Spofford v. United States, 32

Ct. CI. 452.

TENANCY FROM YEAE TO YEAR. 165

statate permits a three days' notice under ordinary circum-
stances.^"^ Where a lease requires a notice to quit of a particular
character to be given in the event of a certain contingency a
statutory notice to quit is proper under other circumstances. A
provision in a lease requiring a notice of a particular descrip-
tion differing in the length of time from the statutory notice will
be strictly construed. A provision in a lease for a term of years
that it may be terminated at the expiration of one year on sixty
days' notice means a notice of sixty days to terminate at the
end of the first year and the first year having passed, the right
to terminate on notice is gone.^^ If the lease for years is silent
as to when the period of notice shall expire, the notice should be
to quit at the expiration of the year or some other rental period.
Thus a three months' notice to quit, expressly provided for by
the lease must expire on the day which is the anniversary of the
commencement of the lease, in the absence of any provision to
the contraiy.^^ Where a lease provides that it shall be sub-
ject to three months' notice on either side at any time to ter-
minate the agreement, the notice may be given at any time,
though the rent be payable quarterly, if it is not clearly appar-
ent that the hiring is from year to year,''" in which latter ease
the notice to quit must be given to terminate on a rent day. A
tenant who is under an agreement to vacate the premises upon
their sale by the landlord is entitled to receive notice that they
have been sold. He must have reasonable notice. The notice
may properly be given him by the purchaser. The length of
time which the tenant may need to secure premises of a like
character is no criterion of what may be a reasonable notice.
Under such circumstances a thirty days' notice will be regarded
as sufficient.'"'

§ 118. The form and the character of the notice to quit.
Ordinarily a notice to quit, particularly where the lease is in
writing ought itself to be in writing. But a parol notice to quit

BBBuhman v. Nickels & Brown 1 K. B. 444, 90 L. T. 122, 20 T. L.

Bros., 1 Cal. App. 266, 82 Pac. R. 159.

Rep. 85. =3 Soames v. Nicholson, 71 L. J.

57 M. Fine Realty Co. v. City of K. B. 24. (1902) 1 K. B. 157, 85
New York, 103 N. Y. Supp. 115. L. T. 614, 50 W. R. 169.

58 Dixon V. Bradford and Dis- so Cooper v. Gambill, 146 AJa.
trict Railway Servants' Coal Sup- 184, 40 So. Rep. 827.

ply Co., 73 L. J. K. B. 136, (1904)

166 LAW OF LANDLORD AKD TENANT.

g-iven by a tenant who is holding under a parol lease has been
held suffieient.^^ So an oral notice to quit given by an em-
ployee of a corporation t<) its tenants is prima facie sufficient
without any affirmative evidence of the agent's authority to
give it,^- though his lack of authority may be shown by the ten-
ant. The giving of an oral notice to quit by the tenant which is
received ^vithout objection by the landlord is a waiver of the
right of the landlord to have a written notice to quit.^^ A writ-
ten notice to quit need not be directed to the tenant eo nomine
if it is proved to have been delivered to him at the proper time."*
So., any error in the direction of the notice to quit either in the
address or in designating the tenant or describing the premises
will be cured by the tenant's retention without objection of the
notice to quit.®^ So a mere variance in the notice from the
description of the premises contained in the lease will not in-
validate a notice to quit where the tenant was not misled there-
by.°® In all cases where the party .served with a notice to quit
claims that it is irregular either in form or in the manner of its
service he ought to return it to the party Mnthin a reason-
able time indicating his objection to it. His retention of an ir-
regular or informal notice to quit particularly in a case where
the other party is prejudiced thereby may be regarded as a

61 Eberlein v. Abel, 10 111. App. where the signature was omitted
626; Timmins v. Rawlinson, 3 from the notice to quit, see Carle-
Burr. 1603, 1 W. Bl. 533; Doe d. ton v. Herbert, 14 W. R. 772. A
Macartney v. Crick, 5 Esp. 196, notice to quit is not invalidated
8 R. R. 848. by a mistake in the Christian

62 Doe d. Rochester v. Pierce, 2 name of the tenant if he or his
Camp. 96. family on receiving it understand

63 Smith v. Snyder, 168 Pa. St. it to be intended for him and re-
541, 32 Atl. Rep. 64, in this case tain it. Clark v. Keliher, 107
the tenant in informing the agent Mass. 406. The date given in a
of the landlord of his intention to written notice to quit is immate-
qtiit told him he would hold from rial except when the period of no-
month to month, and the agent tice is to run from such date. The
replied he would see his principal date of its service is usually con-
and would let the tenant know trolling, and this may always be
what the landlord would do before shown by parol evidence under
the end of the term but neglected general rules.

to do so. CO Consolidated Coal Co. v.

«r. Doe V. Spiller, 6 Esp. 70, 9 Schaefer, 135 111. 210, 25 N. E.

R. R. SIO. As to the validity of Rep. 788.
a notice required under a lease

TENANCY FROM TEAR TO YEAR. 167

waiver of the irregularity or informality in form or mode of
servdce. If a landlord accepts a notice to determine a tenancy
as such at the time of its service, the fact that the notice is im-
perfectly expressed does not affect its validity.*^ The courts
will always consider the substance rather than the form of the
notice to quit and will usually disregard all technical irregular-
ities and informalities pro-vdded it shall appear that the party
who was served with the notice to quit has not been misled or
prejudiced thereby. A notice to quit served on the tenant ought
to be signed by the landlord or his- agent duly authorized to do
so.®® The notice must not be conditional, but absolute and posi-
tive. A notice by a tenant that he would quit unless the land-
lord would repair is not a good notice to quit.®^ So, a notice
served by a landlord upon the tenant that he must quit or pay
an advanced rent, or make repairs, or do any other thing in the
alternative which will be a condition of his remaining in posses-
sion is not a good or proper notice to quit.

§ 119. The construction of the language of the notice to quit.
The courts will construe the language of the notice to quit in
a reasonable manner. If the meaning of the language is doubt-

67 General Asur. Co. v. Worsley, street number when possible),
15 Reports, 328. which you now hold of me (him)

68 A notice prepared and signed on the — day of , 190" — ,

by a clerk of the authorized agent next, or at the expiration of the

of the owner, and with the owner's year of your tenancy thereof,

and agent's names signed by the which shall expire next after the

direction of the agent, is sufficient. end of one half-year from the date

Bond V. Chapman, 34 Wash. St. of this notice. Dated the — day

606, 609. 76 Pac. Rep. 97. , 190—. D. E." A notice to

69 Baltimore Dental Ass'n v. quit, given by or on behalf of the
Fuller, 101 Va. 627, 44 S. E. Rep. tenant, may be in the following
771, 772. A notice to quit, given form, the words between paren-
by or in behalf of the landlord, thesis being used when the notice
may be in the following form, the is given by an agent: "To E. F.
words in parenthesis being used I hereby (as agent for and on be-
when the notice is by an agent: half of Mr. C. D., your tenant)
"To Mr. A. B. I hereby (as agent give you notice that on the — day

for and on behalf of Mr. D. E., of next I shall (he will) va-

your landlord) give you notice to cate No. — , , street, city of

quit and deliver up the possession , county of , state of

of the premises, situate at , which I (he) now hold

in the county of , city and (holds) of you as tenant thereof.

state of (adding street and Dated, the — day of , 190 — ."

168 LAW OF LANDLORD AND TENANT.

fill or if it is ambiguous, the court will so construe it to make
it sensible rather than declare it void. The intention of the
person who signs the notice to quit, if it be apparent from the
whole notice, will prevail over minor inconsistencies in the no-
tice.'° The notice to quit must be such when it is given that the
tenant could safely act under it. And if he could not, i. e., if the
notice as given was not the act of the landlord and not binding
on him, it is extremely doubtful whether any subsequent ratifi-
cation by the landlord will validate it and make it binding upon
the tenant. A statutory notice to quit must usually be in writ-
ing and must contain a description of the premises sufficiently
certain for identification. It ought also to require the tenant
to remove from the premises on the specified day.'^^ The notice
to quit should include the whole premises, and a notice to quit
only a part of the premises where the whole are held under the
one lease is insufficient to terminate the tenancy.'^- Whether the
notice to quit must be absolute or whether it may be conditional
has been differently decided. A notice to quit delivered by the
landlord to the tenant "unless he (the tenant) desires to re-
main" upon the terms proposed by the landlord has been held
a sufficient notice.'^^ But on the other hand, a notice by the land-
lord that he would not renew the tenant's term unless the latter
agreed to make repairs is not a sufficient notice to quit. It was
held that the notice to quit ought to be absolute and not in the
alternative.'^*

§ 120. To whom notice must be given. The notice to quit
when given by a landlord must usuallj^ be served on the actual
tenant. Notice to quit to one of several lessees holding as ten-

ToDoe V. Culliford, 4 Dowl. & v. Lampson, 66 Conn. 432, 34 Atl.

Ry. 248. Under Conn. Gen. St., Rep. 39.

§ 1355, which provides that a no- ^i McClung v. McPherson, 47

tice to quit shall be "substantially" Oreg. 73, 81 Pac. Rep. 8G7, 82 Pac.

in the following form, "I (or we) Rep. 13.

hereby give you notice that you 72 Alworth v. Gordon. 81 Minn.

are to quit possession of the 445, 84 N. W. Rep. 454.

premises now occupied by you," a 73 Candler v. Mitchell, 119 Mich,

notice that "you are hereby noti- 564, 78 N. W. Rep. 551.

fied to quit possession" of certain 74 Baltimore Dental Association

premi.scs on or before a given date, v. Fuller, 101 Va. 627, 44 S. E.

duly signed, is sufficient. Miller Rep. 771.

TENANCY FROM YEAE TO YEAR. 169

ants in common lias been held 5?ufficient and binding on all.^°
Where a lease is to several persons as lessees, if one of them,
acting for himself only, remains in possession after the expira-
tion of the term, a notice to quit addressed to him alone is suffi-
cient to terminate the tenancy resulting from his holding over.''®
A party found in possession who entered after a tenant had va-
cated, may, in the absence of evidence to the contrary, be pre-
sumed to be in as the tenant's assignee so that notice to quit may
properly be served upon him.'^ It is a safe and advisable ruie
to serve notices to quit upon all persons who may be upon the
premises though the landlord may know they are not his ten-
ants. Their status ought to be accurately described in the no-
tice to quit as for example, that they are occupants or sub-ten-
ants, though a misdescription where no one has been misled will
not estop the landlord. A notice to quit ought to be served upon
all under tenants as such by the superior landlord. But where
on notice being given to a lessee, he serves notices to quit on his
under tenants and the lessee then quits so much of the premises
as is occupied by himself, but his under tenants do not quit,
ejectment may be maintained against the lessee by the original
lessor for so much of the premises as the under tenants continue
to occupy. The possession of the under tenant is the possession
of the lessee.'^* On the other hand, it has been held that though
the service of a notice to quit on sub-tenants may be prudent
and advisable, it may be regarded as sufficient service to deliver
a notice to quit personally to the original lessee. His lessee takes
subject to the rights of his lessor against him and the under
tenant is bound by a notice to quit though it be not served on
him.''' The rules which are applicable to the service of a no-

75 Doe d. Macartney v. Crick, 5 ^s Roe v. Wiggs, 2 Bos. & P.
Esp. 196, 8 R. R. 848: As to a case (N. S.) 330.

where one tenant lived elsewhere ^9 Schilling v Holmes. 23 Cal.

than the premises in question. 227. In New York it is not neces-

Doe d. Bradford v. Watkins, 7 sary to serve a notice on sub-ten-

East, 551, 3 Smith, 517, 8 R. R. ants under Laws 1882, c. 303, re-

670. quiring noti<e to a monthly ten-

76 Tice V. Coweiihoven, 63 N. J. ant of the landlord's election to
L. 24, 42 Atl. Rep. 1054. terminate the tenancy as a pre-

77 Doe d. Morris v. Williams, 6 requisite to summary proceedings.
B. & C. 41, 9 D. & R. 30, 30 R. R. Decker v. Sexton, 43 N. Y. Supp.
244. 107, 19 Misc. Rep. 59.

170 LAW OF LuVNDLORD AND TENANT.

tiee to quit by the landlord upon his tenant are also applicable
to the service of a notice to quit by a tenant on his landlord. A
lessee of land from tenants in common must serve notice of his
intention to quit on all the lessors who hold as tenants in com-
mon.®^ But notice to quit by a tenant served on one of several
joint lessors would probably be sufficient. And there being no
privity of contract or estate between a sub-tenant and the orig-
inal landlord, the service of a notice to quit by a sub-tenant upon
the original landlord may be dispensed with. A notice to quit
in the ease of a corporation being tenants, may be served upon
its treasurer,^^ or other officer qualified to receive service of
court process. A statutory requirement that notice to quit shall
be served on "any person in possession" is not fulfilled by a
service on any other person than the lessee. ^^

§ 121. By whom the notice to quit must be given. As a gen-
eral rule only that person who is the immediate owner of the
reversion can serve a notice to quit. A landlord who during a
tenancy from year to year grants a lease of the same premises to
a third person for a term of years cannot thereafter serve on the
yearly tenant a valid notice to quit.^^ In such case the notice
to quit must be served by the tenant for years who after he has
received his lease, stands in the place of the landlord so far as
the tenant from year to year is concerned. A notice to quit
signed by one of two or more joint lessors is valid and binding
on all of them. In one case it has been held that a notice to quit
in the names of all of the joint lessors but signed by only one is
a good notice to quit.®* And so, too, such a notice given by an
agent authorized to do so by one of several joint lessors deter-
mines the tenancy as to all the lessors.*^ On the other hand, it
was held that a notice to quit to a tenant from year to year from
joint lessors must be signed by all the joint lessors at the time
it is served, if it is given by one of them, but if given by an

so Bless V. Jenldns, ]29 Mo. 647, 82 Baragiano v. Villani, 117 111.

31 S. W. Rep. 9:]S. Long Bros. v. App. 372.

Bolen Coal Co., 5C Mo. App. 605. 83 Wordsley Brewery Company

81 Lindeke v. Associates Realty v. Halford, 90 L. T. 89.

Co., 77 C. C. A. 56, 146 Fed. Rep. si Elliott v. Hulme, 2 M. & Ry.,

630. Also holding that a statute 483, 6 L. J. (O. S.) K. B. 345.

regulating the service of summons 85 Kindersley v. Hughes, 7 Mee.

on a corporation is applicable to & Wei. 139, 10 L. J. Ex. 185.
the service of a notice to quit.

TENANCY FROM TEAR TO YEAR. 171

agent on behalf of the joint tenants, if his authority is recog-
nized by all of them subsequently, it is sufQcient.^^ But a no-
tice to quit given by two of three joint trustees who are lessors,
is bad, though all three are named and the third afterwards
adopts it and joins in the ejectment.*^ On the other hand it has
been held where four trustees under a deed of trust were
joint landlords of a house, that a notice to quit served on the
tenant but signed by only three of them was sufficient to put an
end to the connection between all the parties as landlords and
tenant.** If four joint tenants enter into a joint lease from year
to year, such of them only as give notice to quit may recover
their several shares in ejectment.*^ A notice to quit leased
premises owned by two tenants in common, signed and served
by one, acting for both, with the knowledge of the lessee, is suffi-
cient.*° A notice to quit signed by one of the several joint ten-
ants on behalf of the others will terminate a tenancy from year
to year as to all.^^ A general agent may give a valid notice to
quit in his own name, but it is otherwise if given by an agent
holding only a special or limited authority."^ An infant who
has become entitled to the reversion of an estate leased from year
to year, must give notice to quit before he can eject the tenant.^'
A notice to quit signed by a mortgagor who had a general au-
thority from the mortgagee to determine tenancies, is sufficient
to determine a tenrncj^ created before the mortgage, even though
the notice does not purport on the face of it to be on behalf of
the mortgagee.®* But a mortgagor who remains in possession
after the day of default has passed, and received the rents and
has given receipts in his own name, cannot by notice to quit,
signed by himself only, determine a tenancy, which existed at
the time of the execution of the mortgage.®^

86 King V. Woodward, 3 B. & 9i Aslin v Summersett, 1 B. &
Aid. 689; Jolliffe v. Sybourn, 2 Aid. 135, 8 L. J. (O. S.) K. B. 369.
Esp. 677. 92 Jones v. Phlpps, 9 B. & S. 761,

87 Fisher v. Cuthell, 5 East, 491, 32 L. J. Q. B. 198; L. R. 3 Q. B.
2 Marsh. 83, 5 Esp. 149, 7 R. R. 303. IS L. T. 813, 16 W. R. 1044.
752. "3 Baker v. White, 2 Term Rep.

88 Alford V. Vickery, Car. & M. 159. 1 R. R. 453.

280. »* Stackpoole v. Parkinson, Ir.

89 Whayman v. Chaplin, 3 Taunt. R. 8 C. L. 561.

120, 12 C. R. 615. "c Miles v. Murphy, Ir. R. 5 C. L.

90 Earl Orchard Co. v. Fava, 138 382.
Cal. 76, 70 Pac. Rep. 1073.

172

LAW OF LANDLORD AND TENANT.

§ 122. The date upon which the period stated in the notice
must terminate. Where a notice to quit is given at common
law or where by statutory provision a tenancy from year to
year can be tenninated only by a notice to quit given at a speci-
fied date during the pendancy of the lease it is always necessary
that the period for which the notice was given should terminate
at the expiration of the current year, or month, in case the ten-
ancy is from month to month.^^^ A tenancy from year to
year in South Carolina looks to the end of the calendar year for
its termination without regard to the time of the commencement
of the tenancy.^^ But it has been held that a notice to quit "at
the expiration of the year's tenancy" is sufficient, although it
does not appear on the face of it that it was given six months
before the period therein specified for quitting.''^ And a notice
to quit on the anniversary of the day "at" or "on" or "from"
or "on and from" which the tenancy commenced is generally
good.®" When the lease expressly provides that the notice to

98 Hessher v. Moss, 50 Miss. 208;
Prouty V. Prouty, 5 How. Pr. (N.
Y.) 81; Pinkelstein v. Herson, 55
N. J Law, 217, 26 Atl. Rep. 688;
Lloyd V. Cozens, 2 Ashm. (Pa.)
131; Lesley v. Randolph, 4 Rawle
(Pa.) 123; Dumn v. Rothermel,
112 Pa. St. 272; Peehl v. Bumba-
lek, 99 Wis. 62; Godard v. South
Carolina R. Co., 2 Rich. Law (S.
C.) 346; Floyd v. Floyd, 4 Rich.
Law (S. C.) 23; Phoenixville v.
Walters, 147 Pa. St. 501, 23 Atl.
Rep. 776; Flower v. Darby, 1
Term Rep. 159; Rigge v. Bell, 5
Term Rep. 471; Phillips v. Butler,
2 Eop. 589; Castleton v. Samuel,
5 Esp. 173; Pitcher v. Donovan,
2 Campb. 78; Thompson v. Mab-
erly, 2 Campb. 573; Mathewson
V. Wrightman, 4 Esp. 5, 6 R. R.
834; Hinde v. Vince, 2 Campb.
256; Doe v. Brookes, 2 Campb.
257; Spicer v. Lea, 1 East, 312, 4
Kent. Com. 113.

ooa Hart v. Lindley, 50 Mich.
20; Hogsett v. Ellis, 17 Mich. 366;

Shaw V. Hoffman, 25 Mich. 163;
Steffens v. Earl, 40 N. J. Law, 128,
29 Am. Rep. 214. Where in a ten-
ancy from month to month the
month commences on the first day
a notice served before the day
named in it requiring the tenant
to quit on the last day of the
month is sufficient. Petsch v.
Biggs, 31 Minn. 392. A statute
which provides that a notice to
quit shall end with the month in
the case of a monthly tenancy
must be strictly observed. Hence
a notice to quit at the end of
thirty days given during a month
for which rent has been paid in
advance is invalid as regards the
month in which it was given.
Simmons v. Jarman, 122 N. C.
195, 29 S. E. Rep. 332.

»7 Wilson V. Rodeman, 30 S. C.
210; Floyd v. Floyd, 4 Rich. (S.
C.) 23.

OS Gorst V. Timothy, 2 Car. & K.
351.

>'9 Sldcbotham v. Holland, 64 L.

TENANCY FROM YEzVR TO YEAR. 173

quit may be given at any time, it is not necessary that the period
of the notice to quit should expire at the end of the current year.^
To illustrate the rule let us cite a few English cases, thus:
Under a letting from year to year which is dated Dec. 20th, 1872,
but specifying no date for the commencement of the term, a
notice to quit given by the landlord on the 24th of June, 1874,
was held a good notice of six months.^ So, a notice on Sept. 28th,
to quit on the ensuing March 25th, is a sufficient half year's
notice.^ Likewise a notice given on Sept. 26th to quit at the end
of six calendar months will determine a holding commencing on
March 25th. and this is true if the word "calendar" had been
omitted or the notice had expressly said half a year.* A notice
to quit to terminate a tenancy for a term of years, given on Dec.
24th to quit on June 24th next was good.'^

§ 123. The necessity for personal gervice of a notice to quit.
The notice to quit ought to be personally sei^ved upon the tenant
usually at some place upon the property,* and maist be served
upon all lessees or on all lessors who have the title to the term
or to the reversion who hold as tenants in common.'' Though
the notice to quit ought if possible to be personally served
upon the tenant upon the premises it is likely that a service by
leaving it upon the premises while the tenant is absent therefrom
with some person of mature age, under such conditions that the
tenant would be likely to receive it upon his return, would be
sufficient in a case where the tenant attempts to avoid service by
absenting himself from the premises.* A statute which requires
the service of a written notice to quit to terminate a tenancy
from month to month requires the personal service of the written

J. Q. B. 200, [1895] 1 Q. B. 378, * Howard v. Wemsley, 6 Esp. 53,

14 R. 135, 72 L. T. 62, 43 W. R. 9 R. R. 806.

228. » Buddie v. Lines, 11 Q. B. 402,

1 Bridges v. Potts, 17 C. B. N. 17 L. J. Q. B. 10 8, 12 Jur. 80.

S. 314; Soames v. Nicholson, 71 e De Giverville v. Stolle, 9 Mo.

Law J. K. B. 24 [1902] 1 K. B. 157, App. 185; Van Studdiford v. Kohn,

85 Law T. 614, 50 Wkly. Rep. 169. 46 Mo. App. 436.

2 Sandill v. Frankim, 44 L. J. t Bless v. Jenkins, 129 Mo. 647,
C. P. 216, L. R. 10 C. P. 377, 32 L. 31 S. W. Rep. 9S8.

T. 309, 23 W. R. 473 s The statute must always be

3 Durant v. Doe, 6 Bing. 574, 4 consulted as to the metuod of
M. & P. 391, 8 L. J. (O. S.) C. P. Berving the notice to quit.

227, 31 R. R. 499; Harrap t.
Green, 4 Esp. 198.

174

LxVW OF LANDLORD AND TENxVNT.

notice at least in all cases where such service can conveniently be
made.® Hence under such a statute the mere reading of the
notice to quit to the tenant is not sufficient as the statute requires
personal service, and the personal delivcTy of the notice to the
tenant. On the other hand a notice to quit sent by mail and
which is actually received by the tenant within the required time
is sufficient, though this mode of service is not expressly author-
ized. The tenant accepts all risks in receiving the notice.^" In
the absence of express statutory regulation, a notice to quit nec-
essary to terminate a tenancy from year to year may be served
upon the wife of the tenant, she being in possession in case where
it is impossible to serve the tenant in person. ^^ Ex 7iecessitate
rei where the tenant is a corporation a notice to quit given by
the landlord may be served on one of its officers.^^ If a notice
to quit is served by mail it seems that the day on which it is de-
livered by mail to the tenant will be considered as the date from
which the notice to quit is to run.^^

9 Van Studdiford v. Kohn, 46 Mo.
App. 436; construing Rev. St. 1889,
§ 637. See, also, Langan v.
Schlief, 55 Mo. App. 213.

»a Langan v. Schlief, 55 Mo.
App. 213.

10 Alwoilh V. Gordon, 81 Minn.
445, 84 N. W. Rep. 454; Candler
V. Mitchell, 119 Mich. 564, 78 N.
W. Rep. 551. A notice to quit put
under the door of the tenants
house will be valid as a common
law notice if it can be proved to
have come into the tenant's hands
half a year before the expiration
of the current year. Alfred v.
Vickery, Car. & M. 280.

11 Beiler v. Devoll, 40 Mo. App.
251; Earl Orchard Co. v. Fava
(Cal.) 70 Pac. Rep. 1073. Bell v,
Rlnker, 30 111. App. 300; Cadwal-
lader v. Loerce, 10 Tex. Civ. App.
1, 29 S. W. Rep. 666, 917. See,
also, Jones v. Marsh, 4 T. R. 464.
The service of a notice to quit is
not suflBcient where, in case of a
tenancy from month to month, it

is served upon the tenant who is
a storekeeper by delivering it to
a salesman, of the tenant who, ow-
ing to the temporary absence of
his employer,, was in possession of
the store and who was accus-
tomed to receive papers for his
employer delivered in his absence
and to put such papers in a box
provided for that purpose. Such
person is not an agent of the ten-
ant for the purpose of accepting
service of such a notice within the
meaning of Rev. St. 1889, 6371 and
it not appearing that the said no-
tice ever reached the principal the
service was manifestly insufficient.
Van Studdiford v. Kohn, 46 Mo.
App. 436.

12 Doe V. Woodman, 8 East, 228.

13 See Reg. v. Slawstone, 18 Q.
B. 388. It is not necessary that
the notice to quit should be di-
rected to the tenant if it can be
proved to have been delivered to
him at the proper time. Doe v.
Wrightman, 4 Esp. 5. It may

. TENANCY FROM YEAR TO YEAR. 175

§ 124. A notice to quit given by an agent. Speaking gen-
erally a notice to quit signed by an agent of either party to a
lease is good if at the time of the agent's signing it he had author-
ity to do so. The agent's authority may be inferred from his
previous course of acting in reference to the landlord and to the
premises. An agent to collect rents has presumptively no author-
ity to sign or serve a notice to quit. In order that a notice given
by an agent be sufficient, he must have had authority at the
time it was given^ and it is not made good by its adoption by the
principal after the proper time for giving it.^* "Where a notice
to quit was given by an agent in the names of A and B and also
several other parties, unnamed it was held valid only as to A
and B.^^ As a general rule an agent with power to let premises
as well as to receive the rents can determine the tenancy by a
notice to quit.^® But a notice to quit given by an agent of the
landlord whose only authority is to receive rents is not sufficient
without a ratification by the landlord.^'^ A receiver with a gen-
eral authority to let lands to tenants from year to year has also
authority to determine such tenancies by a regular notice to
quit.^* In the absence of a statutory requirement to that effect
the authority of an agent to sign or serve a written notice to
quit need not be in writing.^'

either be served personally npon (N. C.) 677, 4 Scott, 396; 3 Hod-
him or upon his attorney or it may ges, 84; 6 C. L. C. P. 235, 1 Jur.
be left with his wife or his serv- 356. See also, Pearse v. Boultor,
ant at his dwelling house or at 2 F. & F. 133; Hasler v. Lemoyne,
the demised premises, Jones v. 5 Com. Bench. (N. S.) 550.
Marsh, 4 T. R. 464, but in all such is Marsack v. Read, 12 East, 57.
cases a statement of the character As to the form of the signature
of the notice should be made to the name of the principal by A.,
the person with whom it is left. his agent, is preferable. But the
See Doe v. Lucas, 5 Esp. 155, signing "H., agent for" the land-
Smith V. Clark, 9 Dowl. 202. lord to a notice to quit is as effec-

1* Lyster v. Goldwin, 1 G. & D. tual as though the notice were

463, 2 Q. B. 143, 10 L. J. Q. B. 275; signed with the landlord's name

Mann v. Watters, 10 B. & C. 626, 5 by "H., agent." Earl Orchard Co.

M. & Ry. 357, 8 L. J. (O. S.) K. B. v. Fava, 138 Cal. 76, 70 Pac. Rep.

297. 1073. A notice given by an agent

15 Bailey v. Foster, 3 C. B. 215, should be given and signed in the
15 L. J. C. P. 263. name of his principal according to
• 18 Manvers v. Mizem, 2 M. & the English cases. Buron v. Den-
Rob. 56. man, 2 Exch. 188.

17 Rhodes v. Robinson, 3 Bing. lo No written authority is neces-

176 LAW OF LANDLORD AND TENANT^

§ 125. Waiver of defects in the notice to quit. The service
of a written notice to quit is waived by the acceptance of an
oral notice.^*^ In general it may be said that all defects either
in the substance or the form of a notice to quit or in the manner
or time of its service are waived by delay in objecting if the
party serving it has been induced to act relying upon the as-
sumed validity of the notice and its service/^ Thus all object-
ions to a notice to quit which has been served by the tenant is
waived by the lessor resuming possession of the premises with
the consent of the tenant.-^ A compliance with the notice to
quit by the tenant waives all irregularities and informalities in
it. So the action of the tenant in notifying his landlord, after
he has received from him a notice to quit that he intends to
move estops him from claiming subsequently that the notice to
quit was insufficient.-^ A refusal to quit also constitutes a
waiver by the tenant. The refusal of a tenant to quit on the
ground that he is a tenant from year to year, waives any formal
insufficiency^ of a notice to terminate a tenancy from month to
month.^*

§ 126. Waiver of a notice to quit by a subsequent notice. A
notice to quit which has been properly and timely served may
be waived by the party who served it subsequently serving an-
other notice the terms of which are inconsistent with the carrying
out of the former notice to quit by the person upon whom it was
served. Thus the service of a notice to the effect that in default
of the payment of rent upon a certain day the lease will be con-
sidered as terminated is an acknowledgment of the existence of
the lease' when the notice was served and waives the effect of a

sary under Cal. Civ. Code, § 2309, 612, 9 N. Y. Supp. 24, 27; Shirley

when there is notice to quit, pur- v. Newman, 1 Esp. 266.

porting to be signed for the land- 22 Williams v. Jones, 1 Bush,

lord by his attorney, if the attor- (Ky.) 621; Graham v. Anderson, 3

ney has in fact authority to sign Har. (Del.) 364; Elgutter v.

it. Felton v. Millard, 81 Cal. Drischaus, 44 Neb. 378, 63 N. W.

540, 21 Pac. Rep. 533. Rep. 19.

2« Smith V. Snyder, 168 Pa. St. 29 Baltimore Dental Ass'n v.

514, 543, 32 Atl. Rep. 64, 36 W. N. Fuller, 101 Va. 627, 44 S. E. Rep.

C. 425; Montgomery v. Willis, 45 771, 773.

Neb. 434, 438, 63 N. W. Rep. 794. 2* Drey v. Doyle, 28 Mo. App.

21 Ludington v. Garlock, 55 Hun, 249

TENANCY FROM YEAR TO YEAR. 177

prior notice to terminate the lease.-^ So if the landlord of a
tenancy at will after the expiration of the time limited in a
notice to quit serves a second notice to qnit he waives his right
to proceed under the first notice.-®

§ 127. The effect of a notice to quit. The effect of the ser-
vice of a notice to quit is absolutely to put an end to the relation
of landlord and tenant between the parties as of the date men-
tioned in the notice. The former tenant is thereafter under no
obligations to pay rent as such nor is he liable to the former
landlord for any breach of covenant occurring after the service of
the notice to quit. He is still bound however for rent which may
have accrued before the date which is named in the notice for
the termination of the tenancy. "When the period of the notice
has expired the landlord is at once entitled to possession and the
tenant is thereafter a trespasser; or, at the most a tenant by
sufferance unless, while he holds over, the landlord creates a new
tenancy by receiving- rent or other similar acts constituting a
waiver of the notice to quit. But the service of a notice to quit
by the landlord does not make the holding of the tenant adverse
to the title of the landlord. It will not permit the tenant there-
after to deny the title of the landlord nor will it set running the
statute of limitations in favor of the tenant and against the land-
lord or in favor of any other preson. The tenant is still a tenant.
Prior to the notice to quit he is a tenant under the lease. Subse-
quent to the notice, provided it is effective to terminate the ten-
ancy if he remains in possession he is a tenant holding over and
may therefore be a trespasser or a tenant at will or for a new
term, according to the circumstances and the conduct of the
landlord toAvards him.^^ If after the termination of this period
of notice mentioned in the notice to quit the tenant holds over
and the landlord receives rent from him the tenant is a tenant
from year to year on the terms of the former lease. If the land-
lord does not receive rent from him he may eject him as a tres-
passer.

25 Dockrill v. Schenk. 37 111. 954, 83 Hun, 298. See Doe v. Pal-
App. 44. mer, 16 East, 36.

26 Morgan v. Powers 31 N. Y. S. 2" Sittel v. Wright. 122 Fed. Rep.

434, 436, 58 C. C. A. 416.

12

178 LAW OF LANDLORD AND TENANT.

§ 128. The withdrawal of the notice to quit. Either party
to the lease, having served a notice to quit, may subsequently
withdraw it orally or in writing by appropriate language. The
withdrawal by the party who has served the notice must be con-
sented to by the other or it will be ineffectual to restore the par-
ties to their original position. For if the party on whom the
notice has been served has acted upon it either by securing a new
tenant, if he be the landlord, or by hiring new premises if he be
the tenant, he may refuse to accept the withdrawal of the notice
and the other party is estopped to compel him to continue the
relationship of landlord and tenant. So the party who has been
served with a notice to quit has an absolute right without giving
a reason to refvise to assent to its withdrawal. Where a lessee
has received from his lessor the notice to quit which is required
to be given by the lease and later on the lessee going to the land-
lord he is told he may stay, which he does, the notice to quit is
altogether withdrawn and both parties are then remitted to the
terms of the original lease, the covenants of which, being mutual,
are a good and sufficient consideration for the new arrangement
under which the tenant continues in possession. ^^

§ 129. The waiver of a notice to quit by the receipt of rent.
The duty to give notice of an intention to quit is reciprocal and
consequently is a right which may be waived by either party
to the lease who is entitled thereto. The waiver of a notice to
quit after it has been given, is always in part at least a ques-
tion of intent.'® A lessor may nullify the effect of a notice to
quit served by him by his subsequent actions or language. Thus
the effect of a notice to quit is waived by the landlord consenting
that the lessee may continue in possession after the service of
the notice to quit upon him.^" So, also it is unquestionably true,
that the demand and acceptance of rent, as such by the landlord
which becomes due after the service of the notice to quit and its
payment by the tenant constitute a waiver of the notice to
quit.^^ The receipt of the rent by the landlord raises an impli-
cation of an intention on his part that the tenant shall continue

2s Supplee V. Timothy, 124 Pa. ■''o Arcade Inv. Co. v. Gieriet

St. 375, 384. 16 All. Rep. 864, 23 (Minn. 1906), 109 N. W. Rep. 250.

W. N. C. 386. 31 Collins v. Canty, 6 Gush.

20 Lucas V. Brooks, 85 U. S. 436, (Mass.) 415; Norris v. Morrill, 43

21 L. Ed. 779. N. H. 213; Stedman v. Mcintosh,

TEX-VNCY FROil YE.Ui TO YEAR. 179

in possession which intention is inconsistent with the effect of a
notice to quit. The same result follows when the landlord dis-
trains for the rent after the expiration of the time mentioend in
the notice to quit.^- But the money must have been received by
the landlord as rent. Hence where, after the service of a notice
to quit, a tenant holds over and the landlord brings an action of
ejectment, and, pending- this action, the tenant surrenders posses-
sion the action of the landlord in suing for and recovering a
judgment against the tenant for the value of the use and occupa-
tion of the property for the time the tenant has held over is not
a waiver of the notice to quit as the money is not paid as a rent
but for another purpose.^^ The landlord may, however, accept
from the tenant after the service of a notice to quit the payment
of rent which had accrued and was due and payable before the
service of the notice without losing the benefit of the notice.^*
The service of a notice to quit after the expiration of the time
named in a prior notice is not a waiver of the effect of the prior
notice in a case where a suit had been begun after the service of
the latter notice and its prosecution was continued thereafter."^
It has also been held that mere acceptance of money though
called by the tenant rent after a notice to quit has been given
is not of itself a waiver on the part of the landlord of the notice
but is merely a circumstance, to be taken with the other circum-
stances of the case from which such intent may possibly be im-
plied.^® For the money must not only be received as rent but
it must in fact be rent and calling it rent by either party to the
lease is not conclusive.^^ Thus, the presumption of a waiver
which arises from the recept of rent by the landlord after the

27 N. C. 571, 573; Charter v. Cord- 33 Stedman v. Jrdntosh, 27 N. C.

went, 6 T. R. 219, 220, 3 R. R. 161; 571, 573.

Keith V. Nat. Teleph. Co., 63 L. J. 3* Norris r. Morrill, 43 N. H.

Ch. 373 [1894] 2 Ch. 147, 8 R. 776, 213.

70 L. T. 276, 42 . R. 380, 58 J. P. 35 Ewing v. O'Malley (Mo.
573; Prindle v. Anderson, 19 Wend. App. 1904), S2 S. W. Rep. 1087.
(N. Y.) 391; Anderson v. Prindle, se Cheany v. Batten, Cowp. 24n,
23 Wend. (N. Y.) 616. 9 East, 314n, 9 R. R. 570n; Fryett
32 Ward V. Willingale, 1 H. Bl. v. Jeffreys, 1 Esp. 393; Fitzpatrick
311, 2 R. R. 770. See. also. Jenner v. Childs, 2 Brews. (Pa.) 369.
V. Clegg, 1 M. & Rob. 213, and s- in the recent case of West-
Blight V Dennet, 13 Com. Bench, ern Union Telegraph v. Pennsyl-
178 as to effect of a demand for vania R. R. Co., 120 Fed. Rep. 362,
rent the rule was stated to be that the

180 LAW OF LANDLORD AND TENANT.

service of tlie notice to quit may be entirely overcome by proof
that the rent was received by an agent without authority to re-
ceive it, who received it in ignorance of the steps taken by his
principal to determine the tenancy.^®

§ 130. When a notice to quit may be dispensed with by a
surrender. Where from all the circumstances of the case or
. from the conduct of the parties to a lease from year to year it Is
clearly evident that they intended to terminate any particular
yearly teiin without a notice to quit, the notice to quit will be
wholly dispensed with.^^ Where the rule recjuiring a notice to
quit in order to terminate a tenancy from year to year exists a
tenant cannot dispense with the necessity for giving such notice
by vacating the premises during the term or while the tenancy
exists, and he will be liable for the use and occupation of such
premises until the relation of landlord and tenant has been
legally terminated by giving the notice required by the statute.*"
But in some of the states where a tenancy from year to year
arises from a holding over it has been held that the tenant may
quit at the end of the specified term without giving any previous
notice to quit.*^ An actual surrender by the tenant with an ac-

acceptance of rent accruing after not only received but retained and

a notice to quit had been given by collected. It was held that the ac-

the landlord was not necessarily ceptance of the checks as rent

an absolute <waiver of the notice. operated not only as a waiver of

Such an act by the landlord may the notice to quit, but of the notice

be proved but is only one fact to of the increase of the rent,

be considered in connection with Murphy v. Little, 69 Vt. 261, 37

all the evidence as showing an in- Atl. Rep. 968.

tention on the part of the landlord. 39 Critchfield v. Remaley, 21
And a notice to quit once given Neb. 178, 31 N. W. Rep. 687. Cit-
cannot be withdrawn without the ing Brown v. Kayser, 60 Wis. 1, 18
consent of both parties. If this be N. W. Rep. 523.
done it practically amounts to a *« Huntington v. Parkhurst, 87
new hiring. Mich. 38; Buck v. Lewis, 46 Mo.
38 Ash V. Calvert, 2 Campb. 387. App. 227; Hall v. Wadsworth, 28
After notice to quit coupled with Vt. 210; Mollett v. Brayne, 2
a notice of a raise of rent the Campb. N. P. 103. See also Hud-
landlord accepted checks mailed dleston v. Johnston, McClel. & Y.
by the tenant accompanied by let- 140.

ters which expressly stated that 4i Rorbach v. Crossett, 46 N. Y.

the checks were for the rent at the St. Rep. 426, 64 Hun, 637, 19 N. Y.

rate which had been recognized Supp. 450; Cook v. Neilson, 10

before the raise. The checks were Pa. St. 41; Brightly N. P. 463.

TENANCY FROM YEAR TO YEAR.

181

ceptanice by the landlord at or before the end of any rental
period dispenses with the necessity for a notice to quit. And the
surrender need not be express for an implied surrender arising
from the granting of a new lease or the substitution of a new
tenant will be sufficient.*^ Thus a parol agreement between a
landlord and a tenant from year to year, that another tenant
shall be substituted in the place of the tenant as soon as such
substitution actually takes place, is a surrender which is suffi-
cient under the statute of frauds and no notice to quit is neces-
sary.*' And so where a tenant quitted in the middle of his term,
apartemnts which he had hired for a year, and the landlord let
them to another tenant, the former tenant was not liable for the
rent for a subsequent portion of the year during which the apart-
ments had remained unoccupied.** An abandonment of the prem-
ises acquiesced in by the landlord dispenses with the necessity for
notice by the landlord. But it is not sufficient if the third per-
son does not take possession.*^ The acceptance by a tenant
from year to year of a lease for a definite term, will terminate

42 In one case a notice to quit
seems to have been implied from
a surrender of the premises.
There it was held that where a
tenant from year to year left the
premises in the middle of the year
and tendered possession to the
landlord and thereafter the ten-
ant refused to pay rent for the re-
mainder of the year until com-
pelled to do so by suit, his lia-
bility for rent terminated at the
end of the current year and no
further notice on his part was nec-
essary. Adams v. Cohoes, 127 N.
Y. 175, 28 N. E. Rep. 25, 38 N. Y.
St. Rep. 678, affirming 53 Hun,
260, 25 N. Y. St. Rep. 523, 6 N. Y.
Supp. 617.

43 Stone v. Whiting, 2 Stark. 235,
19 R. R. 710.

44 Walls V. Atcheson, 3 Bing.
462, 11 Mjore, 379, 2 Car. & P. 268,
4 L. J. (O. S.) C. P. 154, 28 R. R.
657.

45 Taylor v. Chapman, Peake Ad.
C. 19, 4 R. R. 884. Eimermann
V. Nathan, 116 Wis. 124, 92 N. W.
Rep. 550, may be cited as an illus-
tration of the rule that a surren-
der may dispense with a notice to
quit. The facts in that case were
substantially as follows: The
landlord of a tenant from year to
year refused to make repairs and
his tenant then told him he would
give him notice in two or three
days. He failed to do so but the
landlord advertised the premises
to let and put up a "to-let" sign
upon them. This notice was up
for more than thirty days before
the expiration of the term at which
time the tenant moved and the
landlord took the keys. The court
held that the landlord was es-
topped to assert that no notice to
quit had been given.

1S2

LAW OP LANDLORD AND TENANT.

the prior tenancy as it is a surrender and no notice to quit is re-
quired to terminate the tenancy prior to the end of the term.*^
§ 131. A disavowal of the landlord's title by the tenant may
dispense with giving notice to quit by the landlord. A notice
to quit need not be given by the lessor when the lessee has during
the term done or said anything which amounts to a disavowal of
the lessor's title.*" It is consequently very important to deter-
mine what language or action coming from a tenant amounts to
a disavowal of his landlord's title.*'' A disclaimer has been de-
fined to be "a ren,unciation by the party of his character as ten-
ant, either by setting up title in another, or by claiming title in
himself."*^ Usually whether there is a disclaimer depends on
the language and conduct of the tenant. The mere fact that on
a demand for the payment of the rent the tenant asks whom he
shall pay it to while he admitted himself to be a tenant and
offered to pay the rent to the right person is not a disclaimer.^"

40 Roosevelt v. Hungate, 110 111.
595.

47Grubb V. Grubb, 10 B. & G.
816, 8 L. J. (O. S.) K. B. 321; Doe
d. Williams v. Pasquali, 1 Peake,
2.59, 3 R. R. 188; Smith v. Ogg,
16 Cal. 88, Bolton v. Landers, 27
Cal. 104; Ramsey v. Henderson

91 Mo. 560, 4 S. W. Rep. 408.
Amick V. Brubaker, 101 Mo. 473,
14 S. W. Rep. 627; Lyon v. La
Master, 103 Mo. 612. 15 S. W. Rep.
767; Young v. Smith, 28 Mo. 65;
Stephens v. Brown, 56 Mo. 23;
Ramsey v. Henderson (Mo.) 10
"West. Rep. 33; Payton v. Stath, 5
Pet. (U. S.) 485; Wolf v. Hoi ton,

92 Mich. 136, 52 N. W. Rep. 459;
Tuttle V. Reynolds, 1 Vt. 80;
Brown v. Keller, 32 111. 151; Jack-
son V. French, 3 Wend. (N. Y.)
337; Evans v. Enloe, 70 Wis. 345,
34 N. W. Rep. 918; Williams v.
Pasquali, 1 Peake, 259, 3 R. R.
688; Jefferies v. Whittick, Gow.
195, 21 R. R. 828; Clun v. Clarke,
Peake Ad. C. 239; Foster v. Wil-
liams, Cowp. 622; Cheeser V:

Creed, 2 M. & P. 648, sub nom.;
Davis V. Creed, 5 Bing. 327, 7 L. J.
(O. S.) C. P. 138; Burgess v.
Thompson, 1 N. & P. 215, 5 A. &
E. 532, 6 L. J. K. B. 57; Landsell
V. Grover, 17 Q. B. 589, 21 L. J. Q.
B. 57, 16 Jur. 100.

48 "It is sometimes said that a
tenancy from year to year is for-
feited by disclaimer; but it would
be more correct to say that a dis-
claimer furnishes evidence in an-
swer to the disclaiming party's as-
sertion that he has had no notice
to quit; inasmuch as it is idle to
prove such a notice where the
tenant has asserted that there is
no longer a tenancy." By Patter-
son, J., in Doe d. Graves v. Wells,
10 Ad. & El. 427, 2 P. «&; D. 396.
See, also. Von Glahn v. Brenn^n.
81 Cal. 261, 22 Pac. Rep. 296.

40 By Tindal, C. J., in Doe d. Wil-
liams V. Cooper, 1 M. & G. 135, 1
Scott N. R. 36; approved in Jones
V. Mills, 10 Com. Bench (N. S.)
788; on p. 796.

CO Jones v. Mills, 10 Com. Bench

TENANCY FROM YEAR TO YEAR. 183

So, too, a refusal to pay rent to a devisee of the premises under
a will which is being contested,"'^ is not a disclaimer. So where
a tenant from year to year agreed to purchase the premises and
thereafter he remained in possession for several years paying
neither rent nor interest on the purchase money it is no dis-
claimer of the lessor's title for him to tell his lessor that he had
bought the property and was able to procure and ready to pay
the purchase money. This statement is not a disavowal of title
as it is not a claim that the tenant holds the estate on any ground
which is of necessity inconsistent with the continuance of a ten-
ancy from year to year.^^ So, Avhere a tenant for years on a de-
mand being made y a andlord for possession under a belief on
the part of the landlord that the lease had expired refused to give
Tip possession claiming the term had not expired, and where he
said in reply to a demand for rent that he would not pay the
party demanding as he did not know but that some some one
else might afterwards claim the rent it was held no disavowal or
disclaimer of the title of the landlord.^^ Upon the other hand
where a tenant said "I have no rent for you because A has
ordered me to pay none, " ^* or where the lessee of a life tenant
on the death of the latter says to his personal representative:
"I will not pay rent to you; I am a tenant of another," a dis-
claimer and disavowal of the tenancy and of the lessor's title, dis-
pensing with notice to quit is very clearly made out. A tenant
who after his lessor has granted the reversion takes a lease from
a third party by thus attorning to a stranger, repudiates the
relation existing between his landlord and himself and is not en-
titled to a notice to quit.^« The right of the landlord to oust the
tenant without notice to quit which he acquires by the disclaimer
of the tenant may be waived by the subsequent conduct of the
landlord The right of a landlord to maintain ejectment with-

(N. S.) 788, 31 L. J. C. P. 66, 8 Jur. v. Cawder, 1 C. M. & R. 398, 4 Tyr.

(N. S.) 387. 852, 3 L. J. Ex. 239.

Bi Doe d. Grubb v. Grubb, 10 B. si Doe d. Whitehead v. Pittman,

& C. 816. 2 W. & M. 672.

62 Doe d. Gray v. Stanion, 1 M. ss Doe d. Calvert v. Frowd. 1 M.

& W. 69.5, 2 Gale, 154, 5 L. J. Ex. & P. 480, 4 Bing. 557, 560, 29 R. R.

253. 624.

■•^ Doe d. Williams v. Cooper. 1 bg Lyon v. La Master, 103 Mo.

Scott (N. R.) 36, 1 Man. & G. 135, 612, 15 S. W. Rep. 767.
9 L. J. C. P. 229; see Doe d. Lewis

]S4

LAW OF LANDLORD AND TENANT.

out serving a prior notice to quit after a disavowal may be
waived by the landlord. Such a waiver would be implied where
after the disclaimer or disavowal the landlord by conduct or
language recognizes the existence of the relationship of landlord
an dtenant. By distraining for rent after a disclaimer the land-
lord waives the operation of the disclaimer.^^

57 Doe d. David v. Williams, 7
Car. & P. 322. The reason that a
notice to quit is regarded as un-
necssary in a case where the ten-
ant has denied the landlord's title
is that by his action he has de-
nied the existence of the relation-
ship of landlord and tenant and
is therefore estopped to assert
any rights which he could have
claimed as a tenant. As to
whether the tenant has done or
said that which amounts to a dis-
claimer is usually a mixed ques-
tion of fact and law. If the facts
or the language of the tenant are
not denied by him it is for the
court to determine if they con-
stitute a disclaimer. The ques-
tion then is has the tenant done

or said anything which amounts
by a reasonable construction to a
denial on his part that the rela-
tionship of landlord and tenant
exists. If what he has said or
done amounts to a setting up of
a title on the part of the tenant or
in some third person it Is a dis-
claimer. The fact that the ten-
ant did not mean to repudiate the
relationship of landlord and ten-
ant will not protect him for the
effect of what te said or did.
Thus a refusal to pay rent to a
person legally entitled until such
person proves his right is a dis-
claimer although the tenant does
not assert a better title in himself
or another. Calvert v. Frowd, 4
Bing, 557

"CHAPTER VII.

TENANCY AT WILL.

§ 133. The definition of an estate at will.

134. A reservation of rent is not necessary to create a tenancy at

will.

135. The liability of a tenant at will for rent.

136. Tenancy at will by express agreement.

137. The mere occupation of the land by the permission of the owner.

138. Leases of an uncertain duration.

139. Entry under an agreement for a lease.

140. Tenancy at will created by a defective or unexecuted lease.

141. Leases void under the statute of frauds.

142. The vendee of the land having gone into possession under a

contract to buy.

143. Tenancy at will by holding over.

144. The occupancy of the premises incident to the employment of

the occupant.

145. The judgment debtor holding over after sale under execution.

146. The lessee of a judgment debtor holding over after the sale

under the execution.

147. The determination of the will. In general.

148. The termination of a tenancy at will by the death of either

party to it.

149. The partition of the demised premises by tenants in common.

150. Termination of the tenancy by the surrender and abandonment

of the premises.

151. The termination of a tenancy at will by the landlord's aliena-

tion of the premises.

152. Denial of the title of the landlord by a tenant at will.

153. The tenancy at will may be determined by the giving of a new

lease.

154. The entry of the landlord on the land as terminating the ten-

ancy.

155. Notice to quit when required in tenancies at will at common

law.

156. Notice to quit and demand of possession as terminating a ten-

ancy at will.

157. Statutory notice required to terminate a tenancy at will.

158. The termination of the period of notice.

159. The commission of waste by a tenant at will.

160. The assignability of the tenant's interest in an estate at will.

161. The right of a tenant at will to recover damages for an injury

to the land.

186 LAW OF LANDLORD AND TENANT

§ 133. The definition of an estate at will. A tenancy at will
may be defined to be a tenancy of land the duration of which is
determinable by either party thereto. Here the lessee has no cer-
tain estate for the lessor may determine it any time he wills to
do so while on the other hand the tenant is not tied down to any-
fixed and definite occupancy of the premises as he may, in turn,
determine the tenancy at his will. In other words a tenancy at
will is at the will of both parties to the tenancy.^ This proposi-
tion however must be qualified by the statement that the tenant
at will who sows the land is entitled to the emblements accord-
ingly. Though a strict tenancy at will may be arbitrarily deter-
mined insianter by the landlord, yet if he do this while the ten-
ant's crops are unreaped, he must permit the tenant to remove
the crops and to have free and unresricted ingress and egress
upon the land for that purpose.^

§ 134. A reservation of rent is not necessary to create a ten-
ancy at will. Inasmuch as a person who occupies land rent free
may be under certain circumstances a tenant at will it is never
necessary that there should be an actual reservaton of rent to
the landlord in order to create a tenancy at will.^ Hence a per-

1 Knight V. Coal Co., 47 Ind. minable at the will of either party

105, 17 Am. Dec. 692. "Tenant at to the demise." 1 Washburn on

will is, where lands or tenements Real Property, 370, quoted in

are let by one man to another, to Bright v. McQuat, 40 Ind. 521, on

have and to hold to him at the page, 523. See, also, Willis v. Har-

will of the lessor; by force of rell, 118 Ga. 906, 908, 45 S. E. Rep.

which lease the lessee is in posses- 794. "A tenancy at will is where

sion. In this case the lessee is the land is held by the tenant as

called tenant at will, because he long as lessor and lessee please

hath no certain or sure estate; that the tenancy shall continue,

for the lessor may put him out at No notice from either party is nec-

what time he pleases." Coke, Lit. eesary to terminate a tenancy at

ch. XXII, p. 55a; 2 Black. Com. will, strictly so-called; any act by

145; 4 Kent, 111, quoted in Mor- either party, affording to the other

ris y. Palmer, 44 S. Car. 462, 464, proper evidence of his determina-

22 S. E. Rep. 726; Woodfall, L. & tion that the tenancy should no

T. 226. "An estate at will in lands longer continue, is sufficient."

is that which a tenant has, by an Digby's History of the Law of

entry made thereon under a de- Real Propery, p. 212.
mise to hold under the joint wills 2 2 Black. Com. 146.

of the parties to the same. It does s Rex v. Jobling, R. & R. 525;

not arise until actual possession Rex v. CoUett, R & R. 498; Nicholl

taken by the lessee, and is deter- v. McKaeg, 10 B. & Cr. 721; Rex

TENANCY AT WILL, 187

son who is permitted b}^ the owner of land to occupy the land
without any agreement for the pay meat of rent having been
made merely upon condition that he shall take care of the same
is a tenant at will so long as he fulfills his agreement.* And a
person who is placed in the possession and occupancy of land by
the owner without any contract to pay rent but with an express
understanding that he will surrender possession whenever the
owner shall require him to do so is a tenant at will.® On the other
hand the fact alone that the person who it is claimed is a tenant
at will does pay rent does not overcome the fact or presumption
that he is a tenant a will unless it shall appear that the rent
is paid by him upon the basis of a yearly or monthly holding."
§ 135. The liability of a tenant at will for rent. Except per-
haps in the case of a tenancy at Avill arising from the occupation
of premises by a vendee before taking title, a tenant at
will is liable for rent to the landlord. In this respect a tenant
at will differs from a tenant at sufferance who in the absence of
statute, is not liable for rent to the owner for the reason that he
is in possession by the oversight of the owner and is as to him a
mere trespasser. If the o\^Tier at the common law receives rent
from a tenant at sufference he at once becomes a tenant at will
or from year to year according to the length of the rental period.
But the owner may recover rent or for use and occupation from
a tenant at will unless he has agreed to let him occupy the prem-
ises rent free. Where the amount of the rent which the tenant
at will is to pay has been fixed by the parties the landlord may
distrain for it.' On the other hand if no fixed sum as rent has
been agreed upon the landlord is entitled to recover a fair and
reasonable sum for use and occupation.* Unless the tenant can

V. Fillongley, 1 T. R. 459, 8 L. J. 7 Jur. (N. S.) 411, 3 L. T. 809;

(O. S.) K. B. 310; Rich v. Bolton, Cox v. Bent, 5 Bing. 185, 5 M. &

46 Vt. 84. R. 281, 17 L. J. (O. S.) 68, 30 R. R.

4 Jones V. Shay, 50 Cal. 508; 5G6; Braythwayte v. Hitchcock, 10
Herrell v. Sizeland, 81 111. 457; M. & "W. 494, 497; Doe dem. Hull
Groves v. Groves, 10 Q. B. 486. v. Wood, 14 M. & W. 682.

5 Humphries v. Humphries, 3 ^ Davies v. Thomas, 6 Exch. 858;
Ired. (N. C.) Law, 362; Rex v. Anderson v. Midland Railway Co.,
Fillongley, 1 T. R. 458. 30 L. G. B. 94.

eBastow v. Cox, 11 Q. B. 22; s Marwood v. Waters, 13 C. B.

Anderson v. Midland Railway Co., 820. Contra, Hyde v. Moakes, 5
3 El. & El. 614, 30 L. J. Q. B. 94, Car. & P. 42.

188 LAW OP LANDLORD AND TENAN'

show that it hai been agreed that he should pay no rent, the pre-
sumption is that the tenant at will is to pay something for the
use of the premises and the burden of proof is usually upon him
to show that he should not. In order that a landlord may re-
cover against a tenant at will for use and occupation, the tenant
must have been in by the permission of the landlord and as his
tenant. The landlord cannot recover where the tenant at will is
a subtenant being the tenant of a lessee unless the landlord has
accepted the subtenant as his own tenant at will.®

§ 136. Tenancy at will by express agreement. At common
law all estates and terms the duration of which was indefinite
and uncertain were estates at will. Such interests and estates
being extremely precarious on account of the readiness with
Avhich they might arbitrarily be terminated by the landlord were
of little value to the tenants who because of these facts could
be greatly inconvenienced if not ruined by an arbitrary exercise
of the will of the landlord. Such estates by a course of judicial
legislation commenced at a very early period were gradually
transformed into tenancies from year to year which were still
determinable at the will of either but only on the giving of
six months' notice according to the English common law.^° The
courts in this process of transforming one species of tenancy into
another seized upon two circumstances, i. e., the yearly harvest-
ing of the crops by the tenant at will and the payment of a
rent by the year as determining factors in the working of the
transformation. But they did not wholly abolish tenancies at
will, recognizing them and affirming them in all cases of hold-
ing for an indefinite term, where these factors are not discovered
to be present as well as in all cases where the parties by express
language or by necessary implication, may fairly be presumed
to have created a tenancy at will. Though the ancient tenancies
at will are now largely considered as tenancies from year to
year and are terminable only upon proper notice to quit by either
party there is no question that there may be still tenancies at
will created whenever the parties expressly stipulate to that
effect." In Indiana by statute it is provided that a tenancy at
will cannot arise or be created without an express agreement

0 Phipps V. Sculthorpe, 1 B. & lo i Washburn on Real Property,

Aid. 50, 18 R. R. 42G; Hyde V. 382.
Moakes, 5 C. & P. 42. n Sullivan v. Enders, 3 Dana

TENANCY AT WILL 189

and that all general tenancies in which the premises are occu-
pied by the consent, either express or constructive of the land-
lord, shall be tenancies from year to year.^- "Where a notice to
quit is required in the case of a tenancy from year to year a fa-
ther who permits his son with his family to remain in possession
of premises for several years, and, upon the son's death, tells
the widow that she may remain for that year, if he allows the
year to pass and another to begin can terminate her tenancy
only by the notice required by statute and a mere demand for
rent will not be sufficient.^ ^

§ 137. The mere occupation of the land by permission of the
owner. An occupation of land by the permission of the owner
without any lease or agreement by the occupant to pay him
rent, and without any rent being paid by the occupant, and also
without any definite term or period of occupation agreed upon
by the parties, undoubtedly creates a tenancy at will. The oc-
cupation of the land must be with the consent of the owner,
which may be either express or implied, in the absence of a
statute requiring the consent to be express, or the occupant will
be a trespasser or at the most a tenant at sufferance of the own-
er. So, too, the period of occupation must be undefined and un-
limited for if a definite period be agreed upon or implied from
the payment periodically of rent, it is either a tenancy for years
or from year to year according to the circumstances of each
case.^* Thus, for example, a widow who, with the knowledge of

(Ky.) 66, citing Squires v. Huff, v. Stone, 12 Cush. (Mass.) 174;

3 A. K. Marsh. (Ky.) 18. A parol Sprague v. Quinn, 108 Mass. 553,

agreement to pay rent in advance 554.

does not constitute a conditional 1= Rev. St. 1881, § 5208.

limitation of a tenancy at will so is Tobin v. Young (Ind.), 17 N.

as to entitle the landlord, upon the E. Rep. 625.

failure of the tenant to pay rent i* Haj'den v. Collins (Cal. App.

in advance, to dispense with a 1906) 81 Pac. Rep. 1120; Jones v.

statutory notice to quit, or to enter Shay, 50 Cal. 308; Perkins v. Per-

on the premises at once, or to Idns (Conn. 1886) 5 Atl. Rep. 373;

maintain a summary proceeding White v. Elwell, 48 Me. 360, 77

to secure possession, provided by Am. Dec. 231; Cheever v. Pearson,

a statute. Nor can the tenant, 16 Pick. (Mass.) 266; Wilson v.

a fortiori terminate a tenancy at Merrell, OS Mich. 707; Larned v.

will by failing to pay rent alone Hudson, 60 N. Y. 102; Dame v.

and without giving a required Dame, 38 N. H. 429, 75 Am. Dec.

statutory notice to quit. Elliott 159; Earsfield v. Healy, 50 Barb.

190 LAW OF LANDLORD AND TENANT.

the lessor after the death of her husband remains in possession
of the premises which her deceased husband had occupied under
a lease by the year/^ a divorced wife who, with her husband's
consent, occupies land which is owned by him/^ or a person who,
with the owner's consent, erects buildings on land and occupies
them with his consent without paying rent to the owner,^'^ is a
tenant at will. So, where a parish voted that certain persons
should have the privilege to erect a seminary on public and un-
occupied land owned by the parish with liberty to remove the
building at their pleasure and that the same persons have cer-
tain land to be used in connection therewith for seminary pur-
poses, the parties who are thus privileged become tenants at
will of the parish. ^^ But, a tenancy at will is never created
where the occupation is without the consent of the owner. So,
one who occupies land without the owner's consent and during
his occupation agrees to pay the owner rent for the time he has
occupied it on condition that, if he paid the rent, he might con-
tinue in the occupation does not thereby become a tenant at will
or lose his condition as a trespasser until he shall actually pay
the rent.^^

§ 138. Leases of an uncertain duration. A lease in writing
or by parol and reserving rent in .general and providing for its
payment but not specifying any period during which the term
is to continue creates only a tenancy at will. If the parties to
a lease do not name or fix the duration of the term or do not
designate its duration so that its length remains indefinite and
uncertain, there is a presumption that the lease is meant to
create a tenancy at will.^*' A written lease in which the dura-

(N. Y.) 255; Humphries v. Hum- isperkins v. Perkins (Conn.

phries, 25 N. C. 362; .Johnson v. 1886) 5 Atl. Rep. 373.

Johnson, 13 R. I. 467; Rex v. Col- le Wilson v. Merrill, 38 Mich.

lett, R. & R. 498; Rex v. Jobling, 707.

R. & R. 525; Rex v. Fillongley, 1 " Dame v. Dame, 38 N. H. 429,

Term Rep. 458; Doe d. Hull v. 75 Am. Dec. 195; Couch v. Burke,

Wood, 14 Mee. & Wei. 682, 687, 15 2 Hill (S. Car.) 534.

L,. J. Exch. 41; 9 .Tur. 1060; Rich- isCheever v. Pearson, 16 Pick.

ardson v. Langridge, 4 Taunt. 128 (Mass.) 266.

(holding that a mere general let- m Center Creek Min. Co. v.

ting is a tenancy at will). See, Frankenstein, 179 Mo. 564, 78

also, Morris v. Palmer, 44 S. Car. S. W. Rep. 785.

462, 464, 22 S. E. Rep. 726. 20 st. Louis, etc., R. Co. v. Hall,

TENANCY AT WILL.

191

tion of the term is not stated expressly or by implication creates
a strict tenancy at will.-^ So, a lease for a period of time com-
mencing on a certain date stated and to continue until the
lessor is prepared to improve the grounds with new buildings,--
or a lease for as long as the parties please to continue it,-' or
a lease giving a right to occupy land for a stated consideration
so long as the occupant pleases to occupy,-* or a lease for such
a time as may be agreeable to us both,-^ or a letting from month
to month with an express understanding in the lease that the
tenant should vacate the premises whenever the landlord desired
possession of them,^® or a lease expressly for a term of years
but which is to determine without notice whenever the premises
are sold,-' or permission to occupy a house at a fixed rent until
the wife of the occupant recovers from an illness,-^ creates a
tenancy at will.-^ An agreement by the parties that a tenant

71 Ark. 302, 74 S. W. Rep. 293;
Jones V. Shay, 50 Cal. 508; Herrell
V. Sizeland, 81 111. 457; Pidgeon v.
Richards, 4 Ind. 374; Fischer v.
Johnson^ 106 Io\Ya, 181, 76 N. W.
Rep. 658; Martin v. Knapp, 57
Iowa, 342, 10 N. W. Rep. 721;
Mattox V. Helm, 5 Litt. (Ky.) 186,
15 Am. Dec. 64; Goodenow v. Al-
len, 68 Me. 308. 311; Gardner v.
Hazleton, 121 IMass. 494; Haines
V. Beach, 90 Mich. 563, 51 N. W.
Rep. 644; Sanford v. Johnson, 24
Minn. 172; Den v. Drake, 14 X. J.
Law, 523; Larned v. Hudson, 60
N. Y. 102; Jackson, v. Bradt, 2
Caines (N. Y.) 169; Post v. Post,
14 Barb. (N. Y.) 253; Burns v.
Bryant, 31 N. Y. 453; Woodrovv
V. Michael, 13 Mich. 187; Amick
V. Brubaker, 101 Mo. 473, 14 S. W.
Rep. 627; Corby v. MacSpadden,
63 Mo. App. 648. 2 Mo. App. Rep.
950; Sanford v. Johnson, 24 Minn.
72; Lee v. Hernandez, 10 Tex. 137,
138; Harrison v. Middleton, 11
Grat. (Va.) 527; Richardson v.
Langridge, 4 Taunt. 128, 13 R. R.
570; Rae v. Lewis, 2 W. Bl. 1173;
Com. Dig. tit. Estates, H, 1. "All

leases for uncertain terms are
prima facie leases at will; it is
the reservation of an annual rent
that turns them into leases from
year to year." Roe v. Lees, 2 W.
Bl. 1173.

21 Amick V. Brubaker, 101 Mo.
473. 14 S. W. Rep. 627.

22 Corby v. MacSpadden, 2 Mo.
App. Rep. 950, 63 Mo. App. 648.

23 Richardson v Langridge, 4 T.
R. 128; Bartow v. Cox, 11 Q. B.
122. .

21 Pidgeon v. Richards, 4 Ind.
374.

25 Murray v. Cherrington, 99
Mass. 229.

26 Woodrow V. Michael, 13 Mich.
187.

27 Pfanner v. Sturmer, 40 How.
Pr. (N. Y.) 401; Lee v. Hernan-
dez, 10 Tex. 137.

2s Doyle v. Gibbs, 6 Lans. (X.
Y.) ISO.

29 A parol lease of premises to
endure only until the owner shall
sell them is a valid lease at will
though by its terms the rent was
to be paid every two months.
Hence upon the sale being made

192

LAW OF LANDLORD AND TENANT.

may occupy premises as a school so long as ^e "kept a good
school," is a tenancy at will. And the requirement that the
occupant shall keep a good school constitutes a conditional limi-
tation, the breach of which terminates the estate of the tenant
without entry^ by the landlord. Evidence that the tenant was
an incompetent teacher is admissible to show that he no longer
keeps a good school.^"

§ 139. Entry under an agreement for a lease. AVhere parties
have made an agreement to execute a lease in the future, and
pending this agreement, the prospective tenant enters upon and
occupies the premises with the landlord's consent, he becomes at
once a tenant at will of the future landlord and continues so
until the execution of the lease which has been agreed on which
is the principal contract and into which the tenancy at will is
then merged. But if during the tenancy at will, rent is paid by
the year, the party who has entered under the agreement is a
tenant thereafter from year to year which tenancy is also ter-
minable by the execution of the future lease. ^^ The payment

the lease terminates at once Avith-
out notice to the tenant. Clark v.
Rhoads, 79 Ind. 342. "Leases for
uncertain times, are, prima facie,
leases at will; it is the reservation
of annual rent that turns them in-
to leases from year to year." Roe
ex. d. V. Lees, 2 W. Bl. 1173. An
entry by the tenant under an oral
lease for the term of fifteen years
■was held to be a tenancy at will
where the premises upon which
the tenant entered consisted of a
house which the landlord erected
for the tenant upon the land of a
third person with an agreement
on the part of the landlord that
he would remove it whenever he
was directed to do so. It follows
therefore that a notice to quit is
required. Blackwell v. Bowers,
67 Vt. 403, 31 Atl. Rep. 848; fol-
lowing Stafford v. Adair, ,57 Vt.
63.

30 Ashley v. Warner, 11 Gray
(Mass.) 43.

31 Carteri v. Roberts, 140 Cal.
164, 73 Pac. Rep. 818; Carbett v.
Cochrane, 67 Conn. 570, 35 Atl.
Rep. 509; Lockwood v. Lockwood,
22 Conn. 425, 433; Weed v. Lind-
say, 88 Ga. 686, 694; Dunne v.
Trustees, 39 111. 578, 582; Emmons
V. Scudder, 115 Mass. 367; Swart
V. Western Union Telegraph Co.,,
12 Detroit Leg. N. 609, 105 N. W.
Rep. 74; Childers v. Lee, 5 N. Mex.
576, 25 Pac. Rep. 781; Hamerton
V. Snead, 3 Bar. & Cr. 483, 10 E.
C. L. 159; Chapman v. Towner, 6
Mee. & Wei. 100; Anderson v. Mid-
land Ry. Co. 3 E. & E. 614; Pollen
V. Brewer, 7 Com. Bench (N. S.)
371; Clayton v. Blakey, 2 Smith
Lead. Cas. 116, note; Hegan v.
Johnson, 2 Taunt. 148, 149; Gray
v. Stanion, 1 Mee. & Wei. 695; Cox
V. Bent, 5 Bing. 185; 2 M. & P.
281; Lamar v. Dixon, L. R. 6 II. L.
514; Knight v. Benett, 11 Moore,
222, 3 Bing. 361, 4 L. .1. (O. S.)
C. P. 94, 28 R. R. 640; Doe d.

TENANCY AT WELL. 193

of rent by the tenant at will must be in reference to a yearly
holding in order to convert such a tenancy at will into a yearly
tenancy or a tenancy from year to year for if the party who has
entered on the premises under an agreement for a lease pays rent
not Avith reference to a year or any aliquot part of a year but
merely pays rent generally, he is still a tenant at will.^^ One
payment of yearly rent is sufficient. But the presumption that
a tenancy at will has been transformed into a tenancy from year
to year by one payment of a yearly rent may be strengthened by
a repetition of the pa.jinents and a continuance in possession for
more than a year.^^ A lessor may under particular circumstances
be estopped by his conduct, as by the deliberate failure or neglect
to sign a lease that the tenant has signed, to assert that such a
lease creates only a tenancy at Avill. He cannot accept as much
of the contract to make a lease as proves, or as is likely to prove,
favorable to his interests, while rejecting that portion of it
which is not likely to be of advantage to him. Thus, where the
assignee of a lessee's interest in the term enters upon the pos-
session of the land with the consent of the lessor who, there-
upon, prepares a new lease for the unexpired term which new-
lease is executed by the assignee but is not executed by the les-
sor, the latter is estopped to claim that the new agreement which
he has neglected to execute is a revocation of the lease which was
assigned and he is also estopped at the same time to assert that
by reason of his failure to sign the new lease, it operates only to
create a tenancy at will in the assignee.^* The tenant who thus
enters on land under an agreement to make a lease will be held
liable to the landlord for use and occupation during the period
he is in possession, in the absence of an express agreement to the
contrary between the parties.^^ Tenants who have been admitted
into the possession of the premises under an agreeemnt to exe-

West Morland v. Smith, 1 M. & 33 Braj'thwaite v. Hitchcock, 10

Ry. 137; 6 L. J. (O. S.) 44; Doe d. M. & W. 494, 497.

Pritchard v. Dodd, 2 N. & M. 838, s* Morris v. Palmer, 44 S. Car.

5 B. & Ad. 689; Braythwaite v. 462. 469, 22 S. E. Rep. 762.

Hitchcock, 10 M. & W. 494, 12 L. as Forbes v. Smiley. 56 Me. 174;

J. Ex. 38, 6 Jur. 976; Riseley v. Lyon v. Cunningham, 136 Mass.

Ryle, 11 M. & W. 6, 12 L. J. Ex. 532, 540; Greton v. Smith, 33 N.

38. Y. 245; Rogers v. Pullen. 2 Bing.

32 Richardson v. Langridge, 4 (N. C.) 749; Sloper v. Saunders,

Taunt. 128. 29 L. J. (N. S.) Ex. 275; Smith.
13

lO-i LAW OF LANDLORD AND TENANT.

cute a lease of them for a term of years cannot, where they sub-
sequently refuse to execute the lease offered to them in con-
formity with the contract for a lease, continue in the possession
of the premises as tenants at will merely because the landlord
had not erected upon the premises such a building with respect
to plan and finish as was contemplated in the agreement. The
tenants' remedy is either to execute the lease, pay the stipulated
rent, occupy the premises, and compel by an appropriate equi-
table action the specific performance of the contract to build or
to vacate the premises at once and sue for any damages they
may have sustained. If they do neither they are simply tenants
at will and after proper notice to quit is given to them as is re-
quired by the statute they may be summarily removed as ten-
ants at sufferance holding over.''^^

§ 140. Tenancy at will created by a defective or unexecuted
lease. Somewhat similar to the case of one who, with the
owner's consent, enters upon land pending negotiations between
him and the owner for a lease to be executed in the future is
the case of a person who enters under a lease which purports to
have been executed by both the parties but w^hich is invalid and
not binding on the landlord because he has not authorized its
execution by the person who signed it as his agent. In some
of the states such a lease by the statute of frauds creates an
estate at will only, though it may expressly provide for the pay-
ment of a yearly rental.^'' So. where a lease which is signed
by the lessee is not executed by the lessor, it has been held to
create a tenancy at will only though the lease stipulated for the
payment of a monthly rental.^^ And a lessee who, by taking
possession under a lease which is invalid because it was not au-
thorized by the lessor becomes a tenant at will, though he may
be liable for use and occupation, cannot be sued for rent under
the invalid lease.^^ And finally, one who having been in posses-
sion under a valid lease which has expired, continues in posses-

V Eldridge, 15 Com. Bench, 236; App. 549; see, also. Hoover v. Pa-

Thetford v. Tyler, 8 Q. B. 95; cific Oil Company, 41 Mo. App.

Dawes v. Bowling, 22 W. R. 770. 317.

ssaWeed v. Lindsay, 88 Ga. 686, 87 Nicholls v. Barnes, 32 Neb.

695, 15 S. E. Rep. 836, 20 L. R. A. 195, 49 N. W. Rep. 342.

33. 38 .Jennings v. MrComb, 112 Pa.

so Lehman v. Nolting, 56 Mo. St. 518, 4 Atl. Rep. 812.

TEN^VNCY AT WILL,.

195

sion under a void lease, is a tenant at will and not a tenant hold-
ing; over nndcr the former lease. ^®

§ 141. Leases void under the statute of frauds. Where a
tenant enters under an oral lease which is for more than a year
and which is for that reason invalid under the statute of frauds,
or in fact under any invalid lease, he is according to very many
of the authorities, merely a tenant at will. In most of the states
this is expressly so provided according- to the language of the
statutes which substantially provide that all parol leases which
in duration shall exceed a certain term shall have the force and
effect of leases at will only. In other words, the statute express-
ly determines and fixes the tenancy between the parties.**' The

39 Carney v. Mosher, 97 Mich.
554. The execution of a lease for
years by an agent of the lessor
who is without authority to do is
a nullity. Nevertheless a lease
made under such circumstances
creates a tenancy at will as soon
as the tenant enters under it. And
where after his entry he pays rent
by the month a monthly tenancy
is created which is binding upon
both the parties to the written
lease, though the writing is un-
enforcible as a lease for a term of
years. Lehman v. Nolting, 56 Mo.
App. 549. A tenancy at will has
been held to have been created
under the following facts and cir-
cumstances:

A lease for twenty-one months
was void for want of authority in
the agent of the lessor who signed
it. The lessee entered and occu-
pied the premises for twelve
months and paid rent for that
period and then vacated the prem-
ises. It was held that this did
not create a tenancy from year to
year but that the lease being void
as such was simply evidence of a
tenancy at will and hence was ad-
missible in an action for use and
occupation. Mcintosh v. Hodges

(Mich. 1897) 70 N. W. Rep. 550.
See, also, as to the effect of the
acceptance of a month's rent by
the landlord where the tenant had
for some time held under a lease
which had expired and which he
had refused to renew at an ad-
vanced rental. Fall v. Moore, 45
Minn. 515, 48 N. W. Rep. 404.

4oCrommelin v. Thiess, 31 Ala.
412, 70 Am. Dec. 499; Petty v.
Kennon', 49 Ga. 468; Western
Union Tel. Co. v. Fain, 52 Ga. IS;
Nicholes v. Smith, 118 Ga. 922,
925, 45 S. E. Rep. 708; Packard v.
Cleveland C. C. & St. L. Ry. Co.,
46 111. App. 244; Bailey v. Ward,
32 La. Ann. 839; Thomas v. San-
ford, S. S. Co., 71 Me. 548; Duley
v. Kelly, 74 Me. 346; Ellis v.
Parge, 1 Pick. (Mass.) 43; Huyser
V. Chase, 13 Mich. 98, 103; Hing-
ham V. Inhabitants of Sprague,
15 Pick. (Mass.) 102; Mcintosh
V. Hodges, 110 Mich. 319, 70 X. W.
R. 550; Kelly v. Waite, 12 Met.
(Mass.) 300; Barrett v. Cox, 112
Mich. 220, 70 N. W. Rep. 446;
Goodwin v. Clover, 91 Minn. 438,
98 N. W. Rep. 322; Allen v. IMans-
field, 82 Mo. 688; Talamo v. Spitz-
miller, 120 N. Y. 37. 23 N. E. Rep.
980, 8 L. R. A. 980, 17 Am. St.

196 LAW OF LANDLORD AJS'D TENANT.

statute fixes and determines the character of the tenure and the
duration of the term but leaves the other incidents of the rela-
tionship between the parties to be determined according to their
original intention as expressed by them. Inasmuch as the lease
is not binding upon either party, either can at any time dissolve
the relationship whatever it may be, that exists and hence neces-
sarily the holding which is created by an entry under a void
lease can be nothing else but a tenancy at will. The courts,
however, will respect the original intent of the parties so far as
possible. The tenant at will under the lease void under the
statute of frauds, will be presumed to hold the premises subject
to the terms of the void lease except as to its duration and tcT*-
mination. So far as such terms are applicable, they will be
applied.^^ One of the ever-present and most striking character-
istics of an estate at will is its easy convertibility into a tenancy
from year to year by the payment and acceptance of a yearly
rent. Hence, though a parol lease which is invalid under the
statute creates in the first instance only a tenancy at will, this
tenancy, like any other tenancy at will, may be turned into a
tenancy from year to year without any violence to or any evasion
of the express language of the statute of frauds. This conversion
may result from the payment of the rent by the year or from
other circumstances showing an intention on! the part of the
parties to create a tenancy from year to year. Such an impli-
cation from the payment of rent is not in contravention of the
statute which recognizes as valid, leases from year to year which
have been created by parol.*- A mere entry and remaining in

Rep. 607; Stover v. Cadwallader, 2 E. D. Smith (N. Y.) 100; Schuy-

2 Penny, 124; McDowell v. Simp- ler v. Leggatt, 2 Cow. (N. Y.) 660;

son, 3 Watts (Pa.) 135; Clark v. Tress v. Savage, 4 E. & E. 36, 2 C.

Smith, 25 Pa. St. 137; Phillips v. R. L. 1315, 23 L. J. Q. B. 339; 18

Fearnside, 4 llayw. (Tenn.) 158; Jur. 680, 2 W. R. 564; Richardson

Duke V. Harper, 6 Yerg. (Tenn.) v. Gifford, 1 Ad. & El. 52, 3 N. &

280, 284, 27 Am, Dec. 462; Blanch- M. 325, 3 L. J. Q. B. 122; Arden v.

ard V. Bowers, 67 Vt. 403, 31 Atl. Sullivan, 14 Q. B. 832, 14 Jur. 712,

Rep. 848; Denn d. Warren v. 19 L. J. Q. B. 268; Beale v. San-

Fearnside, 1 Wil5?. 176; Goodtitle ders, 3 Bing. (N. C.) 850, 5 Scott,

d. Galloway v. Herbert, 4 T. R. 58, 3 Hodges, 147, 6 L. J. C. P.

680. 283, 1 Jur. 1083; Goodwin v. Clo-

41 Lockwood V. Lockwood, 22 ver, 91 Minn. 438, 98 N. W. Rep.

Conn. 425; Strong v. Crosby, 21 322.
Conn. 498; Taggard v. Roosevelt, ^2 McDowell v. Simpson, 3

TENANCY AT WILL. 19 T

possG.'^sion nndor a void lease for a period short of a year, with-
out payment of rent are not enough to convert the est-ate at will
into an estate from year to year nor do these create a tenancy
for a year under the statute of frauds. Something more thnn
this is always necessary. There need be no new contract of
lease in express terms in order to convert the tenancy at will
into a tenancy from year to year. But there must be something
from which an intention to create a tenancy from year to year
may reasonably be inferred and this is so commonly an occupa-
tion from year to year with the payment of rent for a year or for
an aliquot part thereof that the presumption therefrom is usually
conclusive in the absence of explanatory evidence to the con-
trary.^^ An occupation for at least one year with payment
of rent at so much per year will usually be sufficient. "Where
is is claimed that a tenancy at will has been created by a parol
agreement invalid under the statute of frauds, it is always neces-
sary to show an entry upon the premises by the tenant. And
such a tenancy if proved by parol, begins only with the date
of the entry into possession of the tenant.**

§ 142. Vendee of the land having g-one into possession under
a contract to buy. In England and in some of the states of the
Union an occupant of land holding under an executory contract
for a sale and conveyance to him of the land is a quasi tenant
at will and he cannot be evicted without a previous demand for
the possession though he may not be entitled to notice to quit.*"

Watts. (Pa.) 135; Dumn v. Roth- the latter could treat him as such,

ermel, 112 Pa. St. 272, 282, 17 W. and the tenant could not relieve

N. C. 292, 43 L. I. 376, 3 Atl. Rep. himself from liability for rent up

800; Packard v. Cleveland C. & St. to the end of the current year.

Louis R. Co.. 46 111. App. 244, 245. And the terms of the lease void

In Talamo v. Spitzmiller, 120 N. Y. as to duration would control as to

37, on page 42, the court by Brad- rent."

ley, J., says: "The mere fact that 43 Talamo v. Spitzmiller, 120 N.

a person goes into possession un- Y. 37, 42, 43, 23 N. E. Rep. 980. 8

der a lease void because for a L. R. A. 221. 17 Am. St. Rep. 607,

longer period than a year, does citing inter alia Reeder v. Saver,

not create a yearly tenancy. If 70 N. Y. 184; Laughran v. Smith,

he remains in possession with the 75 N. Y. 209.

consent of the landlord for more <+ Hardy v. Winter, 38 Mo. 106;

than one year under circum- Pollock v. Kitrell, 4 N. C. 585.

stances permitting the inference 45 Hall v. Wallace. 88 Cal. 434,

of his tenancy from year to year, 26 Pac. Rep. 300; Blum v. Robert-

198

LAW OF LANDLORD AND TENANT.

Ill the state of New York the eontrarj^ rule is recognized and
it is held that a vendee in possession of land under a contract to
convey is not a tenant of the vendor at all, and he is not, for this
reason, entitled to notice to quit.*® The entry and the holding
of the premises under a parol contract made by a reputed agent

son, 24 Cal. 127, 145; Goodwin v.
Perkins, 134 Cal. 564, 66 Pac. Rep.
793; Manchester v. Doddridge, 3
Ind. 360. 363; Venable v. McDon-
ald, 4 Dana (Ky.) 336, 337; Pat-
terson V. Stoddard, 47 Me. 355, 74
Am. Dec. 490; Towne v. Butter-
field. 98 IMass. 106; Kiernan v.
Linnehan, 151 Mass. 543; Gould v.
Thompson, 4 Met. (Mass.) 224,
229; Howard v. Merriam, 5 Gush.
(Mass.) 563; Proprietors of Town-
ship No. 6 V. McFarland, 12 Mass.
325; Lyons v. Cunningham, 136
Mass. 532, 537; Rawson v. Bab-
cock, 40 Mich. 330; Crane v.
O'Reiley, 8 Mich. 312; Dwight v.
Cutler, 3 Mich. 572; Love v. Ed-
monston, 23 N. Car. 152; Dowd v.
Gilchrist, 46 N. Car. 353; Rich-
ardson V. Thornton, 52 N. Car.
458; Kaas' Estate, 5 Pa. Co. Ct.
Rep. 55; Jones v. Jones, 2 Rich.
Law (S. Car.) 542; Den v. Web-
ster, 10 Yerg. (Tenn.) 510; Win-
nard v. Robbins, 3 Humph.
(Tenn.) 614; Carpenter v. United
States, 17 Wall. (U. S.) 489; Win-
terbottom v. Ingham, 7 Q. B. 611;
Carrigan v. Woods, I. R. 1 C. L.
73; Tomes v. Chamberlaine, 5 Mee.
& Wei. 14; Braythwaite v. Hitch-
cock, 10 Mee. & Wei. 494; Gray v,
Stamon, 1 Mee. & Wei. 695; Megan
V. Johnson, 2 Taunt. 148; Lewis
V. Beard, 13 East, 210; Newby v.
.Jackson, 1 B. & C. 448; Roe v.
Street, 2 A. & El. 329; Jones v.
Jones, 10 B. & C. 718; Doe d. Stan-
way V. Rock, 6 Jur. 266, 2 Man. &
Gr. 30; Howard v. Shaw, 8 Mee.

& Wei. 118; Doe d. Hiatt v. Miller,
5 Car. & P. 595; Doe d. Parker v.
Eoulton. 6 M. & S. 148.

46 Jackson v. Miller, 7 Cow. (N.
Y.) 747, 752; Jackson v. Moncrief,
5 Wend. (N. Y.) 29; Wright v.
Moore, 21 Wend. (N. Y.) 233;
Doolittle V. Eddy, 7 Barb. (N. Y.)
78; Jackson v. Kingsley, 17 Johns.
(N. Y.) 158. See also as to the
early rule in Massachusetts, Little
V. Pearson, 7 Pick. (Mass.) 301;
Quincy Parish v. Spear, 15 Pick.
(Mass.) 144; King v. Johnson, 7
Gray (Mass.) 239. It has been
much discussed whether one who
is let into possession of land un-
der contract for a deed, intended
to be executed and delivered as
soon as the title can be examined
and the deed prepared, can, while
the contract remains in force and
unexecuted, be regarded as a ten-
ant of the vendor or be held liable
to pay for the use and occupation.
By perhaps a majority of the
courts it is considered that he is
a licensee; that at law his right to
occupy is determinable at any
time by entry or demand for pos-
session; that if he accepts the
deed, he is liable for nothing ex-
cept under his contract for the
purchase; that, if he refuses the
deed, he may then be held liable
to pay for the intervening occu-
pation either in an action of tres-
pass, after entry, or ejectment, or
perhaps in assumpsit; that, if the
owner refuses to give a deed ac-
cording to the contract, the vendee

TENANCY AT WILL.

199

of the vendor and owner who had no anthority to make it and
which for that and other reasons is invalid, have the same effect
in creating- a tenancy at will in the occnpant as wonld an entry
under a valid contract which was binding on the owner.^^ All
the rules of law which are applicable to an estate at will in
general are usually admitted to be applicable to a tenancy at
will which is created by a purchaser entering upon the premises
which he has agreed to purchase. His estate or tenancy may be
determined by a simple demand of possession, by a sale of the
premises to another or by the death of the vendee. So, if he
disavows the vendor's title or attorns to another person, his ten-
ancy is at an end.*^ But though his tenancy is at an end, his
rights as a vendee continue unimpaired and in full vigor. So,
also, it should be noted, however, that it is the entry into the
possession of the vendee rather than his agreement to purchase
w^hich creates the tenancy at will. Any person wiio thus enters
with the consent of the landlord cannot be a trespasser. He
must be a tenant of some sort. The character of the tenancy

may immediately abandon the pos-
session, and the owner cannot
maintain an action of any kind on
account of the intervening, occu-
pation. There may be special cir-
cumstances attending the transac-
tion from which an agreement to
pay for the intervening occupa-
tion may be inferred or implied,
but it is not by these courts in-
ferred or implied from the sole
fact of a permissive occupation
pending the preparation and de-
livery of the deed." — By Field, J.,
in L,yon v. Cunningham, 136 Mass.
532, on page 537.

A person who contracts for the
purchase of land and is let into
possession by the vendor is not li-
able on the vendor failing to make
a good title for the value of use
and occupation in respect to the
time he has held it. Winterbot-
tom V. Ingham, 7 Q. B. 611, 14 L.
J. Q. B. 298, 10 Jur. 4.

*- Hall v. Wallace, 88 Cal. 434,

436, 26 Pac. Rep. 360; Patterson
V. Stoddard, 47 Me. 355, 74 Am.
Dec. 490. Contra Smith v. Single-
ton. 71 Ga. 68, 70; see, also, God-
frey V. Walker, 42 Ga. 562, 573. In
Smith V. Singleton, 71 Ga. 68, on
page -70, the court after pointing
out that the agent had no author-
ity to sell and that he claimed
none and also calling attention to
the fact that the principal never
ratified the act of the agent though
it came to his knowledge says:
"The transaction amounted to
nothing more than an offer to pur-
chase, which was never accepted.
There was no contract of sale"
which could have been enforced.
Such a case is clearly distinguish-
able from one in which the ven-
dee is in possession under a com-
pleted contract of sale and had a
bond for title on payment of the
purchase money."

48 Love V. Edmondston, 23 N.
Car. 152, 154.

200 LAW OP LANDLORD AND TENANT.

which is created when the vendee is already in possession as a
tenant from year to year, when he enters into the contract to
purchase, depends upon the circumstances of each case. The
presumption is that he continues to occupy as a tenant from year
to year, but this presumption is rebuttable by the circumstances.
The buildings and improvements which are on the land when
it is sold continue the property of the vendor and at his risk un-
til a deed is tendered to the vendee though the vendee goes into
possession. If caring the occupancy of the vendee as a tenant,
the buildings are destroyed by fire, he is under no obligation to
take a deed of the premises where the continued existence of the
buildings was the substantial motive which prompted the pur-
chase by him and their occupancy was the purpose with which
he entered. Hence the tenancy at will is terminated by the fire
destroying the buildings and the vendee's refusal to take a deed
when tendered thereafter by the owner.*^ In those jurisdictions
where a vendee who goes into possession prior to his taking title
is regarded as a tenant at will of the vendor, it has been held
that, if while he is in actual possession, the sale goes ojEf and he
thereafter continues in possession, he becomes liable to the ven-
dor for the reasonable value of the use and occupation of the
premises for the period he remains in possession after the con-
tract of sale is at an end. Under such circumstances the pur-

*9 Gould v. Thompson, 4 Mei. have been merged in the contract.
(Mass.) 224, 229. A vendee go- But if the sale was never consum-
ing on the land who is to pay the mated the owner of the barn was
purchase price at the expiration of still a tenant at will and is liable
a specified period on his failure to to the owner of the land for use
do so becomes a tenant at suffer- and occupation of the land for the
ance of the owner, though before period he remained in possession
that he may have been his tenant after the negotiations for sale
at will. Sanders v. Richardson, went off. But on the other hand
14 Pick. (Mass.) 522. Where the he is entitled to a reasonable
owner of a barn moves it on the period thereafter to quit posses-
land of another while negotiations sion, during which period he can-
were in progress by which he ex- not be charged with rent or use
pected to sell the barn to the and occupation. The extent of the
owner of the land he is while the liability of the tenant at will in
negotiations are pending a tenant such a case is the reasonable
at will of the owner of the land. value of the use and occupation.
If the negotiations had resulted in Michael v. Curtis, 60 Conn. 363,
a completed contract for the sale 368.
of the barn the tenancy would

TENANCY AT WILL. 201

chase money whicli lie lias to pay but which, by reason of the
sale going off, he now will not pay, cannot be regarded as the
consideration for the agreement by the vendor to permit the
vendee to remain in possession.^" But in all such cases there is
no remedy against the vendee by distress as no rent has been
fixed by any agreement of the parties.'^

§ 143. Tenancy at will by holding over. A tenant who, on
the termination of his lease for a fixed term holds over with the
consent of the landlord has in some cases been held to be a ten-
ant at will.^^ The almost universal rule, however, is that a
holding over by a tenant for years creates a tenancy from year
to year. The cases which are usually cited to sustain the propo-
sition that a tenant holds over at will constitute exceptions to
the general rule that a holding over with the consent of the land-
lord creates a tenancy from year to year under the terms of the
lease which has expired. Upon an examination of the language
of the court it will in most of the cases be found either that they
have arisen in states where a holding over after the expiration
of a term is made a tenancy at will by the statutoiy law of the
jurisdiction,^^ or that the holding over was regarded by the par-
ties as merely the giving of a license for some special purpose,
or that the relationship of landlord and tenant never had ex-
isted between the party holding over and the owner of the prem-

50 Howard v. Shaw, 8 M. & W. Hodges, 110 Mich. 319, 70 N. W.
118, 120, 10 L. J. Exch. 336; Tew Rep. 550; Overdeen v. Lewis, 1
V. Jones, 13 M. & W. 12; Winter- Watts & S. (Pa.) 90, 37 Am. Dec.
bottom V. Ingham, 7 Q. B. 611, 14 440; Fall v. Moore, 45 Minn. 515,
L. J. Q. B. 298, 10 Jur. 4; Kirt- 48 N. W. Rep. 404; Matthews v.
land V. Pounsett, 2 Taunton, 145. Hipp, 66 S. C. 162. 44 S. E. Rep.

51 Howard v. Shaw, 10 L. J. 577. A tenant holding over is a
Exch. 336; 8 M. & W. 118, 120. tenant at will and he may be

52 Crommelin v. Thiess. 31 Ala. turned out of possession without
412, 419, 70 Am. Dec. 499; City of notice but it is otherwise if he
Dubuque r. Miller, 11 Iowa, 583; has continued in possession for a
Bennock v. Whipple, 12 Me. 346, year or rent has been received.

28 Am. Dec. 186; Kendall v. Moore, Doe d. Hollingsworth v. Stennett,
30 Me. 327; Walker Ice Co. v. 2 Esp. 717, 5 R. R. 769.
American Steele & Wire Co., 185 53 See Kendall v. Moore, 30 Me.
Mass. 463, 70 N. E. Rep. 937; Ben- 327; and O'Brien v. Troxell, 76
fey v. Congdon, 40 Mich. 283; Iowa, 760; 40 N. W. Rep. 704.
Hoffman v. Clark. 63 Mich. 175, Construing Code of Iowa, § 2014.

29 N. W. Rep. 695; Mcintosh v.

202 LAW OP LANDLORD AND TENANT.

ises," or that the holding over was done and permitted by the
parties not as a prolongation of the prior lease but while nego-
tiations for a new and different lease were in progress ^^ between
them or that some other equally relevant and important circum-
stances existed which conclusively rebutted the ordinary pre-
sumption that tenant holding over his term is a tenant from
year to year. For primarily the question always is in the case-
of a holding over what was the intention of the parties. And
this intention, when it is ascertained, will be respected where
there is no statute regulating the matter. So, too, where a ten-
ant, on his landlord refusing to renew the lease for another
term, except at a greatly increased rent which the tenant refuses
to paj', continues in possession of a portion of the premises for
the purpose of removing his fixtures with the assent of the land-
lord, while his subtenant of a part of the premises continues to
hold possession for a month after the original lessee has moved
and surrendered the key of another portion of the premises to
the landlord, the tenant thus holding over becomes a tenant at
will.^^

§ 144. The occupancy of the premises incident to the employ-
ment of the occupant. Whether an occupation of land by a
person who, while an occupant of the land, is performing serv-
ices for the owner of the land, constitutes the occupant a tenant
at will of his employer, depends wholly upon the circumstances
of each particular case and upon the express terms of the agree-
ment between the parties. The primary inquiry in all cases
where land is occupied and is used as an incident to services
rendered by the occupant to the owner is directed to determine
whether the relation of landlord and tenant exists at all or
whether the permission to occupy the land is merely a license
granted by the owner for his own convenience and revocable by
him at pleasure. As soon as it determined that the relationship
is that of landlord and tenant the same tests may be applied to
the facts appearing in the case to determine whether or not the
tenancy is one at will as are* ordinarily applicable in any case
of tenancy which is shown expressly by language or by necessary

54 Hoffman v. Clark, 63 Mich. se Landsberg v. Tivoli Brewing

175. 178, 29 N. W. Rep. 69r,. Co., 10 Det. Leg. N. 63, 94 N. W.

r-'- Fall V. Moore, 45 Minn. 515, Rep. 197.
48 N. W. Rep. 404.

TENANCY AT WILL. 203

implication from conduct. If the duration of the employment
is uncertain so that the relationship of master and servant may
be terminated by either at an}- time on notice, any tenancy aris-
ing out of such emplojanent being equally uncertain and in-
definite and terminable by the severance of the relation of mas-
ter and servant will be a tenancy at will only. So, a minister
of a dissenting congregation in England who had been placed in
possession of a chapel and dwelling house by the trustees of the
congregation upon his hiring by them to preach and was to live
there free of rent with their consent while he should continue
to be the minister of the congregation is merely a tenant at will
of the trustees and his estate is terminated by a demand for
possession. ^^ The letting of the premises for a term which is
expressly fixed and certain or the payment of a monthly rent
by the servant has sometimes been held not material where the
emplojonent could be terminated at any time. So, a laborer
who is hired by a farmer for a year who agrees to furnish him
with a house while in his employ is a tenant at will of the far-
mer though the laborer is to receive a stipulated compensation
for each month and he in turn is to pay a monthly rental for
the house.^^

57 Doe d. Nicholl v. McKeag. 10 had the right to terminate the ten-
Bar. & C. 721; Doe d. Jones v. ancy at pleasure and without the
Jones, 10 B. & C. 718, 8 L. J. (O. customary notice to quit required
S.) K. B. 310. by the statute. The court re-

es McGee v. Gibson, 1 B. Mon. garded a rule of the company that
(Ky.) 105. In a case in New Jer- a lock-tender who was discharged
sey where a person was employed while occupying a house belong-
by a canal company as a lock ten- ing to the company should imme-
der and as part compensation for diately leave the house as not
his services as such was permitted only reasonable but indispensible
to occupy a dwelling house and in the case of companies operating
garden owned by the company un- public works which provided
der an express agreement "as long dwellings for their employees con-
as he was in the employment of venient to their posts of duty
the company; and when he ceased where the purpose of their occu-
to be so employed he was imme- pancy was to facilitate their busi-
diately to leave the house the ness and convenience the public,
court held that though the servant The necessity of notice was dis-
was a tenant there was no rent pensed with because of the possi-
reserved and that he only re- bility that while the time of the
mained a tenant while he per- notice was running the perform-
formed services. The company ance of the duty of the employee

20i LAW OP LANDLORD AND TENANT.

§ 145. The judgment debtor holding over after sale under
execution. An execution debtor who is left in the occupancy
of land which has been sold under an execution provided it be
done with the consent, express or implied, of the purchaser at
the execution sale, is a tenant at will of such purchaser upon the
general principle that anyone who is in possession of real estate
with the owner's consent, no term being fixed, is presumptively,
and until the contrary appears, a tenant at will.^^ So, where a
judgment creditor bought, under execution, land belonging to
his judgment debtor but, pending an appeal from the judgment,
expressly pennitted the judgment debtor to remain in posses-
sion, the latter is a tenant at will of his creditor and continues
to be so until notice to quit is served.*^" The implication of a
tenancy at will under such circumstances is strengthened where
the purchaser, being the plaintiff in execution, does not at once
demand a deed from the sheriff but is satisfied with a certificate
of sale from that official.®^

§ 146. The lessee of a judgment debtor holding over after the
sale under the execution. Inasmuch as the delivery of the deed
of property which has been sold under an execution relates back
to and conveys the title as of the date of the lien of the judg-
ment, the execution of leased premises nullifies, as against the
purchaser at the sale, all liens, alienations and incumbrances
intermediate the judgment and the sale. Hence the rights of
a lessee who has acquired his term after the judgment had be-
come a lien on the demised premises, are totally divested by the
execution sale and his continuance in possession after the execu-
tion sale cannot properly be regarded as an occupancy under
his lease but as a tenancy at will of the purchaser at the execu-
tion sale to whom he will be liable for use and occupation.^^

might be suspended. Morris Canal eo Dobbins v. Lusch, 53 Iowa,

and Banking Co. v. Mitchell, 31 N. 304. 309.

J. Law, 99, 105. ai Munson v. Plummer, 59 Iowa,

59 Dobbins v. Lusch, 53 Iowa, 120, 122.

304, 309. See, to same effect, 02 Kane v. Mink, 64 Iowa, 84, 86,

Jackson^ v. Sternbergh, 1 Johns. 19 N. W. Rep. 852; Dobbins v.

Cas. (N. Y.) 153; Nichols v. Wil- Lusch, 53 Iowa, 304, 309; Bittin-

liiims, 8 Cow. (N. Y.) 137; Bryant ger v. Baker, 29 Pa. St. 66, 70

V. Tucker, 19 Me. 383. Am. Dec. 154. See, also, Kline v.

Chase, 17 Cal. 596.

TENANCY AT WILU 205

§ 147. The determination of the will — In general. Upon a
perusal of the common law authorities existing prior to the time
of Blackstone, it will be found that there was much discussion
as to what acts by the landlord amounted to a determination of
the estate at will. The abrupt and arbiti'ary ending of a ten-
ancy at will in a period when the population of England con-
sisted almost wholly of small farmers holding their land under
leases executed by the manor lords must necessarily in most
cases have operated very unjustly as to the tenant and caused
him a great inconvenience and loss if not actual and irretriev-
able ruin. This condition of affairs led the English judges to
seek a remedy by which a tenant holding under such a precari-
ous tenure might feel secure to some extent at least, that he
would receive the reward of his labor in planting and tilling the
ground which he held. The effect of this judicial legislation
was seen first in the enunciation of the law relating to emble-
ments in the case of all estates the duration of which was uncer-
tain and particularly in the case of estates at will. At the same
time by reason of the inattention and often because of the indul-
gence of the manorial lords a new kind of tenure or tenancy was
created which had its origin in and was wholly founded upon
mere tenancies at will but which differed from them by reason
of its greater stability and security to the tenant. This was
called copyhold tenure because the tenant was supposed to hold
his estate under and by virtue of a copy of the court roll which
was filed or deposited in the manorial court. The tenant was
still a tenant at the will of the lord of the manor but the deter-
mination of the lord's will was no longer to be arbitrary and
abrupt but exercised only according to the customs of the par-
ticular manor in which the land was located. The land having
been held for some time by one lord, his acquiescence in the
holding, with a knowledge on his part of the existing customs
and local rules by and with reference to which similar land of
his was held was regarded as estopping him from terminating
' the tenancy except under circumstances which had by custom be-
come applicable to similar holdings under him. Inasmuch as
the customs of the manor differed according to the humor and
temper of the various lords, it followed that a copyhold tenant's
estate, while always an estate at will, might, in conformity with
local custom, be of any quantity or duration. Thus a copy-

206 LAW OP LANDLORD AND TENANT.

holder may in some manors be tenant in fee simple or fee tail
or for life, or by the curtesy or in dower, or for a term of years,
though he was always liable to be deprived of his estate w^hat-
ever it might be, on the concurrence of those circumstances,
which according to the immemorial customs of the manor, con-
stituted a termination of the tenancy, or in other words, on the
happening of that particular event which justified the lord in
determining the will. This in some manors was the want of
male issue to the tenant; in others, the cutting of timber by the
tenant, the non-payment of a fine or some similar thing. The
cop3^holder, however, had no freehold interest strictly so called.
He received no livery of seizin and the freehold of the manor
continued in the lord with the use and occupation only granted
to the copyhold tenant. -'^

§ 148. The termination of a tenancy at will by the death of
either party to it. As a general rule a tenancy at will is; termi-
nated by the death of either the lessor or the lessee.^* And. after
the death of the tenant at will, the relation of his successor to
the landlord is that of a mere tenant at sufferance.^^ So, upon
the death of a tenant at will his personal representative does not
become a tenant at will but in case he enters, he is merely a
trespasser or a tenant at sufferance. The landlord may accept
him as a tenant at will or as a tenant upon any other sort of
tenure but this will be a new letting, not the continuation of the
former and the term created a new one. So, too, it has also been
held that a tenancy at will is, ipso facto, terminated by the death
of the landlord and it would seem that thereafter the tenant,
so long as he remains in possession, is merely a tenant at suffer-
ance of the heir of the landlord unless a new arrangement is
made,®" and the owner may enter or eject him at any time with-
out notice to quit. The tenant at will is no longer liable on any
covenant to pay rent after the death of his landlord. He is not

03 2 Black. Com. 148. Stoddard, 27 Ohio St. 478, 483;

«■» Cody V. Quaiteiman, 12 Ga. .Tames v. Dean, 11 Ves. 382, 391,

386; Manchester v. Doddridge, 3 15 Ves. 236, 240, 8 R. R. 177.

Ind. 360; Reed v. Reed, 48 Me. «5 Meier v. Thieman, 15 Mo. App.

388; Robie v. Smith, 21 Me. 114; 307.

Paige V. Wright, 14 Allen (Mass.) «o joy v. McKay, 70 Cal. 445, 11

182; Rising v. Stannard, 17 Mass. Pac. Rep. 763; Reed v. Reed, 48

282, 284; Ferrin v. Kenney, 12 Me. 388.
Met. (Mass.) 294, 296; Say v.

TENANX'V AT WILL. 207

liable to the heir of the landlord for rent aceruinG: after the
death of het landlord. Hence in a ease where the owner of land
which is leased to a tenancy at will, dies, neither of his heirs to
whom the land descends as tenants in common can maintain an
action to recover rent for the land or to recover the reasonable
value of its use and occupation after the death of the ancestor
as the tenancy at will was actually terminated by the death of
the latter.*'^ All under tenancies which have been created by a
tenant at will are put an end to by the latter 's death or by the
death of the primary landlord. The under tenants are not there-
after entitled to notice to quit,°'^ as they are trespassers and
not tenants of any sort so far as the original landlord is con-
cerned. In England, however, the death of the landlord is not
always regarded as raising a conclusive presumption of the ter-
mination of a tenancy at will. The facts attending the case will
be inquired into, in order to ascertain if either by word or con-
duct the heir or reversioner has manifested an intention to con-
tinue the tenancy at will.*^^ Nor does the rule that the death of
a landlord terminates a tenancy at will apply in a case where
the premises are owned by two or more persons as joint tenant:^
for under such circumstances the principle of sun'ivorship
among the joint holders of the reversion is invoked and the ten-
ancy at will is not put an end to by. the death of any of the
joint tenants but the lessee continues as the tenant at will of the
survivor or survivors as the case may be.^^

§ 149. The partition of the demised premises by tenants in
common. A partition of land among the several landlords will
determine a tenancy at will of land, the reversion of which is
owned by tenants in common. Before the partition is had each
joint owner or owner in common has a right to occupy any part
of the land and he may assign or transfer this right by a lease or
conveyance to a stranger. But the lessee always takes subject
to a partition. After a partition has taken place, each co-ten-
ant holds only such part of the land as he has taken in severalty
by the partition. And, as the lessor cannot on partition, with-
out the consent of his co-tenants or co-owners, insist upon having
set off to himself any particular portion he can convey no such

c7Eveleth v. Sawyer, 96 Me. ss Morton v. Woods, L. R. 4 Q.

227, 52 Atl. Rep. 639. B. 306.

6-a Robie V. Smith, 21 Me. 214. ea Henstead's Case, 5 Coke, 10b.

208 LAW OF LANDLORD AND TENANT.

privilege to his lessee. In view of these circumstances a volun-
tary partition of land which is owned in common is in law re-
garded as such an alienation of it as will put an end to a tenancy
at will existing when the partition takes place.'^" So, a convey-
ance by three tenants in common partners in business to them-
selves and a fourth person, reducing the shares of each tenant
in common from a third to a fourth is such an alienation as will
determine an existing tenancy at will for by this a new owner
is created with whom the tenant at will is in uo wise connected.'^

§ 150. Termination of the tenancy by the surrender and
abandonment of the premises. It may be laid down as a Avell
settled general rule that a tenancy at will may be terminated by
a surrender of the premises by the tenant and an acceptance of
possession by the landlord. Some cases dispense with the serv-
ice of a notice to quit by either party upon the other.'- There
are other cases which hold that a notice to quit if required by
statute cannot be dispensed with in a tenancy at will except by
an express agreement in the lease between the parties that the
tenancy may be terminated without notice to quit. In other
words where a statute provides the mode of determining the ten-
ancy at will the statutory mode is exclusive of any other unless
the parties at the time of the making of the lease shall provide
for terminating it in some other way.'^^ The parties to a ten-
ancy at will may expressly dispense with the service of a statu-
tory notice to quit. In all cases where a notice to quit is not re-
quired by statute a surrender and acceptance by the landlord
terminates a tenancy at will.

§ 151. The termination of a tenancy at will by the landlord's
alienation of the premises. A tenancy at will may be de-
termined by the landlord by his alienation of the land. After
this has been done the occupant who was theretofore a tenant
at will of the grantor or vendor is merely a tenant at suffer-

To Rising V. StannarJ, 17 Pick. r. Maxwell, 48 Kan. 142, 29 Pac.

(Mass.) 282, 284; Ellis v. Paige, Rep. 147. See, Forbes v. Smiley,

1 Pick. (Mass.) 43. 56 Me. 174; Warner v. Page, 4 Vt.

71 McFarland v. Chase, 7 Gray 291, 24 Am. Dec. 607.

(Mass.) 462. 78 Davis v. Murphy, 126 Mass.

72 Currier v. Perley, 24 N. H. 143, 144; Farson v. Gooddle, 8 Al-
219, 226; Chalmers v. Vignand's len (Mass.) 202; May v. Rice, 108
Syndic, Mart. (N. S.) 189; Betz Mass. 150.

TENANCY AT WILL. 209

ance of the grantee.'* The former tenant at will has after the
sale of the premises only the rights of a tenant at sufferance as
against his former landlord. Under most circnmstances the
motive of a sale by the landlord of a tenant at will is immater-
ial. A sale and conveyance of the premises has the same effect
upon the tenancy whether made bona fide to some purchaser in
good faith and for a valuable consideration or merely and ex-
dasively for the purpose of terminating the tenancy to one who
has knowledge of the purpose of the sale.'^ But where the ten-
ancy at will is expressly to endure until the premises are sold,
the sale and conveyance must have been made and executed in
good faith and n,ot merely to terminate the tenancy."® In the
latter case as the tenant has the right of possession until the
premises are sold he can only be deprived of this right by a real
sale and conveyance. Otherwise the landlord might evict his
tenant by a pretended sale long before the lease would naturally
expire by a bona fide sale and the tenant would be without a
remedy. A tenancy at willis determined by a mortgage of the
premises where knowledge of the mortgage is brought home to
the tenant. For a mortgage is an alienation of the interest of
the landlord and brings the case under the rule that any aliena-
tion of the landlord's interest determines the tenancy at will,
which depends for its continuance on the personal relation exist-
ing between the landlord and the tenant. This rvile so far as it
applies to a mortgage is not affected by the principle that the
mortgagor still continues in possession and continues to exercise
the rights and privileges of a landlord. After this alienation

74McLeran v. Benton, 73 Cal. v. Howell, 7 Ired. L. (N. C.) 496;
329, 14 Pac. Rep. 879, 883; Esty Co. Litt. 55b, 57a, 1 Cruise Dig.
V. Baker, 50 Me. 325, 79 Am. Dec. 273, 2 Black. Com. 150. The ten-
616; Howard v. Merriam, 5 Cush. ant cannjot after the grant main-
(Mass.) 563, 574; Behedict v. tain an action in the nature of
Morse, 10 Met. (Mass.) 223, 229; qitare clausum fregit against the
Lash V. Ames, 171 Mass. 487, 50 grantee, nor against one who act-
N. E. Rep. 996; Keay v. Godwin, ing under the directions of the
16 Mass. 1; Rising v. Stannard, 17 grantee attempts to eject him
Pick. (Mass.) 282, 284; Ellis v. from the premises. Curtis v. Gal-
Paige, 1 Pick. (Mass.) 43; Curtis vin^ 1 Allen (Mass.) 215, 217.
V. Galvin, 1 Allen (Mass.) 215; '^ Curtis v. Galvin, 1 Allen
Rooney v. Gillespie, 6 Allen (Mass.) 215.
(Mass.) 74; Dame v. Dame, 38 N. tc Ela v. Banks, 37 Wis. 39.
H. 429, 75 Am. Dec. 195; Howell

14

210 LAW OF LANDLORD AND TENANT.

the former tenant at will is a tenant at sufferance of the mort-
gagee, who may thereafter make him a tenant at will, if he shall
choose to do so, but the mortgagor in possession cannot create a
tenancy at will under such circumstances, which shall be binding
on the mortgagee.'^^ Inasmuch as a sale by the landlord termi-
nating the tenancy at will is the voluntary act of the landlord
over which the tenant has no control, the property rights of the
tenant ought to be protected so that his loss may be reduced to a
minimum. In fairness, the tenant at will, however, must be
given reasonable notice by the landlord of his intention to sell
the land so that he secure new premises, and he must also have
a reasonable opportunity to remove his personal property, such as
trade fixtures from the premises.'^^ If the facts attending the
giving of the notice of a sale are undisputed, the question of
what is a reasonable notice and opportunity to remove the ten-
ant's property is for the court. '^^ What in other cases is reason-
able notice of sale is a question of fact where there is a dispute
as to the circumstances. Notice is required to be given by statute
in some states. So, where the state statute requires a notice
to be given by either party to the tenancy of an intention to ter-
minate it a conveyance to a person as a trustee by the landlord
of premises which are rented to a tenant at will, does not end
the tenancy, unlcF^s notice to quit is given to the tenant.^" The
rule that a sale of the demised premises by the landlord deter-
mines a tenancy at will is based upon the fact that a tenancy at
will is somewhat of a personal relation. The landlord in effect
by the sale and conveyance says to his tenant "It is may will that
I shall no longer be your landlord but that you shall have an-
other landlord." And as a tenancy at will is at the will of both

77 Doe d. Davies v. Thomas, 20 (Mass.) 519, 521; Clark v. Wheel-

L. J. Ex. 367, 6 Ex. 854; Jarman ock, 99 Mass. 14, 14; Antoni v. Bel-

V. Hale, 68 L. J. Q. B. 681 (1899), knap, 102 Mass. 193, 200; Lash v.

1 Q. B. 994. Doubtless the oppo- Ames, 50 N. E. Rep. 996, 997, 171

eite view of this matter would be Mass. 487.

taken by those courts where a 79 Lash v. Ames, 171 Mass. 487,

mortgage is regarded as simply 50 N. E. Rep. 996.
creating a lien upon the premises, «" So held in Towa under Code,

and where the mortgagor l)eing in § 2991, requiring thirty days in

possession is regarded as the true writing to be given to either party

landlord. to terminate a tenancy at will.

7s Ellis V. Paige. 1 Pick. (Mass.) German State Bank v. Herron, 111

43, 49; Pratt v. Farraj-, 10 Allen Iowa, 25, 82 N. W. Rep. 430.

TENANCY AT WILL. 211

the landlord and the tenant, the tenant cannot become the tenant
at will of the new owner unless he shall accept him as such. Until
such an acceptance he is a trespasser or at most a tenant at suffer-
ance as regards the grantee. This rule has been applied to in-
voluntary conveyances. So, where a lessor of a tenancy at ^\^ll
becomes insolvent the appointment of an assignee in insolvency
for him with the knowledge thereof by the tenant terminates
the tenancy. The tenant remaining in possession thereafter with
knowledge of the assignment becomes and continues a trespas-
ser.*^ An assignment or a conveyance of the reversion by the
lessor does not affect the tenant at will unless or until he has
notice or knowledge of it. Express notice to the tenant is not
necessary. It is enough if the assignee of the reversion shall
inform him of the assignment or the tenant acquires knowledge
of it having taken place in any other way. So, though the les-
sor may terminate the tenancy by an entry during the absence
of the lessee, he cannot terminate the tenancy by words spoken
elsewhere unless the tenant shall have notice of the words. In
other words, the tenant, though absent from the premises is
presumed to have knowledge or notice of what takes place on
the land but not of what occurs elsewhere. So the occurrence
of anything of which the tenant cannot be presumed to have no-
tice does not terminate the tenancy until notice is brought home
to the tenant.*- And in conclusion it is well settled that a ten-
ant at will may, during the tenancy, remove all structures which
he has erected upon the land with the consent of the landlord,
where the landlord determines the will by selling the estate. ^^

§ 152. Denial of the title of the landlord by a tenant at will.
In conformity with the general rule, if the tenant at will de-
nies the title of his landlord to the premises or does any act
which is inconsistent with a recognition and admission of the

81 Doe d. Davis v. Turner, 6 spoken from the ground the will
Exch. 854. is not determined until the lessee

82 "If a man lease a manor at hath notice." Co. Litt. 55&.
will whereunto a common is ap- ss Walton v. Wray, 54 Iowa, 531,
pended, if the lessor put his beasts 6 N. W. Rep. 472; Melhop v.
to use the common, this is a deter- ]\Ieinhart, 70 Iowa, 685, 28 N. W.
mination of the will. The lessor Rep. 545; Mickle v. Douglas, 75
may by actual entry upon the Iowa, 82, 39 N. W. Rep. 198; Wil-
ground, determine his will in the gus v. Gettings, 21 Iowa, 178;
absence of the lessee, but by words ISIerchants National Bank v. Stan-

212

LAW OF LANDLORD AND TENANT.

title by him as by accepting a conveyance of the premise?*
from a person other than the landlord and asserting his title
under it, the tenancy at will is at an end. The tenant is
then no longer a tenant but a trespasser, so far as the landlord
is concerned, and the landlord may bring an action to recover
the property from him as trespasser or he may, if he can
do so without violence, repossess himself of the premises.^*
So where the tenant disclaims or disavows the tenancy, repu-
diates the relationship of landlord and tenant, or claims he holds
under another person the tenancy at will is at an end without
the service of any notice to quit.^^ If the tenant at will claims
to hold the land as his o^vn and so notifies his landlord his pos-
session becomes adverse to his landlord from such notification.
The landlord is then under the necessity of taking the proper
steps to prevent the adverse claim from ripening into a good
title by reason of peaceable and uninterrupted possession under
the statute of limitations.^*' While the tenancy at will exists tlie

ton, 55 Minn. 211, 56 N. W. Rep.
821; Carlin v. Ritter, 68 Md. 478,
13 Atl. Rep. 376.

8* Tillotson V. Kennedy, 5 Ala.
407, 39 Am. Dec. 330; Sampson v.
Shaefer, 3 Cal. 196, 205; Simpson
V. Applegate, 75 Cal. 342, 17 Pac.
Rep. 237; McCarthy v. Brown, 113
Cal. 15, 45 Pac. Rep. 14; Fussel-
man v. Worthington, 14 111. 135;
Farrow's Heirs v. Edmundson, 4
B. Mon. (Ky.) 605, 41 Am. Dec.
250; Little v. Palister, 4 Me. 209,
211; Currier v. Earl, 13 Me. 216;
Bodwell Granite Co. v. Lane, 83
Me. 168, 172; Campbell v. Proctor,
6 Me. 12; Bennock v. Whipple, 12
Me. 346, 28 Am. Dec. 186; Apple-
ton V. Ames, 150 Mass. 34, 44, 22
N. E. Rep. 09, 5 L. R. A. 206;
Amick V. Brubaker, 101 Mo. 473,
477, 14 S. W. Rep. 627; Ramsey v.
Henderson, 91 Mo. 560, 4 S. W.
Rep. 408; Russell v. Fabyan, 34 N.
H. 218, 223; Pettengill v. Evans, 5
N. H. 54; Love v. Edmonston, 23
N. Car. 152; Chamberlain v. Don-

ohue, 45 Vt. 50, 55; Hall v. Dewey,
10 Vt. 593, 599; Willison v. Wat-
kins, 3 Peters (U. S.) 43. A stat-
ute requiring the service of a no-
tice to quit by the landlord has
been held not to apply to such a
termination of the tenancy as the
court will regard this as a sur-
render. Amick V. Brubaker, 101
Mo. 473, 477, 14 S. W. Rep. 627;
Ramsey v. Henderson, 91 Mo. 560,
4 S. W. Rep. 408.

85 Appleton V. Ames, 150 Mass.
34, 44, 22 N. E. Rep. 69, 5 L. R.
A. 206. The action of a subten^
ant who upon the termination of
the term of his lessor became the
tenant at will of the original land-
lord in refusing to pay rent to the
latter denying his title and claim-
ing the own,ership in himself puts
an end to the tenancy at will. Ap-
pleton V. Ames, 150 Mass. 34. 22
N. E. Rep. 69.

88 Hall V. Dewey, 10 Vt. 593,
599.

TENANCY AT WILL. 213

possession of the tenant is the possession of the landlord. But
as soon as the disclaimer of title or adverse claim by the tenant
}s brought to the knowledge of the landlord or of his agent who
is duly authorized to receive it the statutory period of limita-
tion begins to run against the landlord. "What shall constitute
notice to the landlord of an adverse holding by the tenant de-
pends on the facts of each case. The claims of ownership by
the tenant publicly made, his alienation of the land in fee, and
his delivering possession of it to others would be probably re-
garded as such acts.^*^ A mortgage of the fee of the premises
by the tenant at will is such a claim of an adverse holding and
repudiation of the landlord's title as will determine the ten-
ancy at will. And where the mortgage by the tenant at will has
been foreclosed for a default on the part of the mortgagor, and
the land sold and bought by the mortgagee who has also entered
into possession he as well as the tenant may be treated as a tres-
passer and ousted by the landlord who was not a party to the
suit to foreclose.^^ Where a judgment debtor on the levy of an
execution on land which he held as tenant at will points out the
land as his own property in fee and aids in setting it off for the
deputy sheriff who makes the lew, his acts will amount to a de-
termination of the tenancy. Such conduct on his part is an
unequivocal disclaimer of his landlord's title and so clearly in-
consistent with an estate at will as to put an end to it. The pur-
chaser at the sale under the .judgment takes no title and the
landlord may maintain an action against the judgment creditor
for his entry on the land.^*

^, 153. The tenancy at will may be determined by the giving
of a new lease. A tenancy at will is terminated by the landlord
leasing the demised premises to a third person and the tenant
at vsdll is thereafter a tenant on sufferance of his landlord.^" The
tenancy at will is terminated by knowledge of the new lease to

»7 Farrow's Heirs v. Edmund- Met. (Mass.) 300; IMizner v.

son, 4 B. Mon. (Ky.) 605, 41 Am. Moore, 10 Gray (Mass.) 290; Pratt

Dec. 2.50. V. Farrar, 10 Allen (Mass.) 519;

83 Little V. Palister, 4 Me. 209. Pray v. Stebbins, 141 Mass. 219,

50 Campbell v. Procter, 6 Me. 12. 4 N. E. Rep. 824, 55 Am. Rep. 462;

»o Cunningham v. Holton, 55 Me. Grundy v. Martin, 143 Mass. 279;

33; Hildreth v. Conant. 10 Met. Cofran v. Shepard, 148 Mass. 582,

(Mass.) 298; Kelly v. Waite, 12 20 X. E. Rep. 181.

214 LAW OP LANDLORD AND TENANT.

the third person being given to the tenant after which he must
be allowed a reasonable period to remove his fixtures. The entry
of the new tenant is not necessary under such circumstances to
terminate the tenancy for the letting at once terminates the ten-
ancy at will, on notice to the tenant. For the tenant at will is
not liable as a trespasser for his occupancy of the premises sub-
sequently to the determination of the will by an alienation for
years or in fee until he shall have notice of the alienation.®^

Where the land is owned by a husband and his wife as ten-
ants by the entirety the husband has at the common law the
right to lease the same which lease will be valid and binding on
the wife during the coverture but will terminate in case she shall
sur\-ive him. Hence the execution and delivery of a written
lease of a wife 's lands by the husband during the coverture, will
determine an existing tenancy at will in her lands, made by her
before or after the date of the marriage, and though the lease was
made by the w^f e with the consent of the husband.'-'- There must
however be a new lease in fact to a new tenant, i e.. to some third
person. A mere change in the character of the tenant at will
without a corresponding change of person does not terminate the
tenancy at will. Thus a mere change in the personnel of a firm
which is a tenant, and its change frona a partnership to a corpo-
ration, which is acquiesced in by the lessor do not terminate a
tenancy at will where there is no interruption of the actual occu-
pancy.^^

§ 154, The entry of the landlord on the land as terminating
the tenancy. At the common law the entry of the landlord
upon the land and the doing by him of any act while there in
possession which is inconsistent with an estate at will operate
as a determination of the tenancy. Thus if the lessor after his
entry on the land cuts down trees, carries away stone.®* removes
a house, or makes a feoffment on the land or a lease for years to
commence at once the tenancy at will is at an end."'' Thus in

01 Kelly V. Waite, 12 Met. os Walker Ice Co. v. American
(Mass.) 300; Howard v. IMorris, Steel & Wire Co., 1S5 Mass. 463,
5 Cush. (Mass.) 5C3; Distla v. 70 N. E. Rep. 937.

Ives, 2 Lev. 88. o* Turner d. Doe v. Bennett, 9

02 Pray v. Stebbins, 141 Mass. M. & W. 643.

219, 224, 4 N. E. Rep. 824, 55 Am. o.^ Moore v. Boyd, 24 Me. 242;

Rpp. 4C2. Kelly v. Waite, 12 Met. (Mass.)

TENANCY AT WILL. 213

England a feoffment with livery of seizure made on the land,
determines a tenancy at will though the tenant at will is not
present, and does not assent to the feoffment; and feoffee
may maintain trespass against the tenant at will, even though
the latter had no notice of the feoffment.''® And though the in-
tent with which an entry by the landlord is made is usually im-
portant, yet in the case of a tenancy at will whatever may have
been the intent of the lessor in entering any act by him which
would otherwise be a trespass on the land determines the ten-
ancy."' So, also a demand of possession made by the landlord
upon the land of the tenant at will or of his lessee is a determi-
nation of the estate at will.^* In fact the landlord's entry upon
the demised premises an.d his utterance of any words there
clearly expressive of his present intention to determine the estate
of the tenant constitute a termination of the tenancy at will."®
But in order that the entry of the landlord on the land and his
utterance of words there declaring the tenancy to be at an end
shall terminate the tenancy it is the rule in this country at least
that the tenant shall have notice of such words/ either by his
being present on the land and hearing them when they are
spoken, or by their utterance being subsequently brought to his

300, 302; Rising v. Stannard, 17 he would take measures to obtain

]\Iass. 282, 286; Klay v. Godwin, possession. Doe d. Price v. Price,

16 Mass. 1, 4, 2 BL Com. 146, 150; 2 M. & Scott, 464, 9 Bing. 356.

1 Cruise, Tit. 9, c. 1, § 18; Co. Lit. 99 Effect of a demand of keys.

551); Doe d. Davies v. Tliomas, 6 Where a person, who has had the

Exch. 854, 857, 11 L. J. Bx. 453. keys of the house given him to

96 Ball V. Cullimore, 2 C. M. & enable him to examine the prem-

R. 120, 1 Gale, 96, 5 Tyr. 753, 4 L. ises, moves in his furniture and

J. Ex. 137, 2 Black. Com. 146. family, he is a tenant at will if

9" Turner v. Doe dem. Bennett, the landlord assents, and where

9 M. & W. 643, 646. the landlord afterward sends for

9« Roe d. Blair v. Street, 4 N. & the keys and upon the refusal of

M. 42, 2 Ad. & El. 329, 4 L. J. K. the occupant to deliver them en-

B. 67; Howell v. Howell, 7 Ired. ters himself and turns out the

Law (N. C.) 496. See, also, as to party and his goods it was prop-

the effect of a demand for posses- erly held that the tenancy at will

sion contained in a letter sent was thus terminated. Pollon v.

from the attorney of the lessor to Brewer, 7 Com. Bench (N. S.) 371,

the attorney of the lessee, stating 6 Jur. (N. S.) 509.

that unless the latter paid the i Cook v. Cook, 28 Ala. 6G0.
lei^sor what he owed him for rent

216 LAW OF LANDLORD AND TENANT,

attention. Then tenancy at will expires when he receives notice
or knowledge of the entry and the language of the landlord.

§ 155. Notice to quit when required in tenancies at will at
common law. A tenancy at will may be terminated at the will
of either party at common law and neither party is according to
the majority of the cases in the absence of statute, obligated to
give notice of a future day on which the tenancy and estate shall
terminate.- This rule has been confined to cases of a strict ten-
ancy at will and to those in Avliich the character of the tenant's
holding was such that his status closely approached that of a
mere trespass. In some cases in the absence of a statutory pro-
vision for notice to quit the courts have stated that a reasonable
notice must be given whose length is always dependent upon the
circumstances of each case but in any event to be long enough to
enable the tenant to remove the implements, furniture and other
personal property.^ As determining whether, in the absence of
any statute expressly requiring a notice to quit to determine a
tenancy at will, such a notice is indispensable, some of the cases
have turned upon a distinction which the courts have made or
recognized between tenancies at will in fact, i. e. tenancies which
have been expressly created by the intention of the parties or
which have been implied from their conduct and between ten-
ancies which have been declared to be tenancies at will by virtue
of the Statute of Frauds. In England in the former class of ten-
ancies at will no notice to quit has e.ver been required to be
given either by statute or at common law.* Cases where a tenant
is in possession under a parol lease which the Statute of Frauds
has transformed into a tenancy at will are on a different basis, for
in the case of such a lease where it is evident that the parties to the
contract had intended to create a tenancy differing in many
very material respects from a tenancy at will and particularly

2 Peters v. Blake, 170 111. 304, Donohue, 45 Vt. 50; Hollingsworth

48 N. E. Rep. 1012; affirming 68 v. Stennett, 2 Esp. 717; Tilt v.

111. App. 587; Ellis v. Paige, 1 Stratton, 4 Bing. 446; Right v.

Pick. (Mass.) 43; Davis v. Thomp- Baird, 13 East, 210.

son, 13 Me. 209; Moore v. Boyd, s Ellis v. Paige, 1 Pick. (Mass.)

24 Me. 243; Kenin v. Guvernator 43.

(N. J. Law) 48 Atl. Rep. 1023; * Right v. Beard, 13 East, 210;

Peer v. O'Leary, 28 N. Y. Sui)p. Knight v. Quigley, 2 Camp. 505;

687, 8 Misc. Rep. 350; Rich v. Bol- Hollingsworth v. Stennett, 2 Esp.

ton. 46 Vt. 84; Chamberlain v. 717.

TENANCY AT WILL.

217

where a yearly rent had heen reserved in the invalid lease, no
court of justice would hesitate in endeavoring to protect the
tenant from serious injustice, and, in order to effect such pur-
pose would require a reasonable notice to terminate the tenancy
at will created by the express provision of the statute. In other
words the Statute of Frauds, being- in derogation of the common
law was strictly construed. The tenant was not permitted to be
deprived of any right he might have enjoyed at common law be-
fore the passage of the statute and among these rights was the
right on the part of the tenant of receiving a reasonable notice
to quit, usually of six months, in the case of tenancies from year
to year. Hence in all tenancies at will under the statute reserv-
ing an annual rent, six months' notice is required to terminate
the tenancy at will.

5 Right V. Darby, 1 T. R. 159;
Share v. Parter, 3 T. R. 13; Tim-
mins V. Rowlison, 3 Burr. 1603;
Rising V. Stannard. 17 Mass. 282;
Rich V. Bolton, 46 Vt. 84, 89. "It
was determined very anciently at
tJie common law, upon principles
of jlistice and policy that estates
at will were equally at the will of
both parties and neither of them
was permitted to exercise his will
in a wanton and arbitrary man-
ner, and contrary to equity and
good faith but the3'' could only be
terminated by notice for a longer
or shorter period depending
usually upon the nature of the
original demise. At first there
was no other rule than that the
notice should be a reasonable one.
Because of the uncertainty of this
rule the courts early adopted, as
far as possible, some fixed period
as being reasonable. In those ten-
ancies, which from the nature of
the original demise, they con-
strued to be tenancies from year
to j'ear the courts adopted six
months as a reasonable notice
holding that such tenancies could

only be determined by a notice of
at least six months terminating at
the expiration of the first or' any
succeeding year. And in those
cases which, did not come within
the class of tenancies from year
to year, because by implication for
some definite period less than a
year, the rule was generally
adopted that the time of notice
should be governed bj"- the length
of time specified as the interval
between the times of payment and
should be equal to one of these in-
tervals, and must end at the ex-
piration thereof. The result was
that at the common law estates at
will in a strict sense became al-
most extinguished at a very early
date under the operation of ju
dicial decisions. Indeed it would
have been difficult to conceive of
such a tenancy, except by the ex-
press contract of the parties to
that effect. But they still re-
mained substantially tenancies at
uill, except that such will could
not be determined 'by either party
without due notice to quit." The
Court by Mitchell, J., in Hunter

218 LAW OF LANDLORD AND TENANT.

§ 156. Notice to quit and demand of possession as terminat-
ing a tenancy at will. Though a very great majority of the
cases hold that a notice to quit is necessary to terminate a ten-
ancy at will both at common law and under the statutes of the
various states, there are a few cases which hold that the tenancy
may be ended instanter by a demand of possession by the land-
lord.^ If the tenant at will has done or suffered anything to be-
done which in law constitutes a termination of the tenancy at
will, he is estopped thereafter from claiming that the landlord
must serve a notice to quit upon him before he can be ousted.
This would be the case where the tenant, pending a tenancy at
will disavows his landlord's title and alleges that a third person
owns the property or claims that he himself owns it, after which
he of course holds adversely and is a trespasser and not a tenant
at all and not entitled to notice. Under such circumstances a.
demand of possession is usually sufficient.

§ 157. Statutory notice required to terminate a tenancy at
will. In many of the states it is required by statutes that a
notice of a length therein specified shall be necessary to termi-
nate a tenancy at will. In California,^ Maine,^ New York,® ]\Iis-

V. Frost, 47 Minn. 1, 49 N. W. ers v. Larabee, 48 Me. 570. See
Rep. 327; and see, also, Tobin v. also as to length of notice re-
Young (Ind. 1888) 17 N. E. Rep. quired in Maine. Davis v. Thomp-
625, 628. son, 13 Me. 209; Sherburne v.
eDuane v. Trustees, 39 111. 578; Jones, 20 Me. 70; Wheeler v.
Love V. Edmonston, 23 N. Car. Cowan, 25 Me. 283. It is said,
152; Howell v. Howell, 29 N. Car. however, in Gordon v. Gilman, 48
496, 47 Am. Dec. 335. See, also. Me. 473, that the rights of tenants
2 Black. Com. 146. at will to have notice are deter-

7 Kuhn V. Smith, 125 Cal. 615, mined by the statute in force
58 Pac. Rep. 204; Carteri v. Rob- when the question arises. A ter-
erts, 140 Cal. 164, 73 Pac. Rep. 818. mination of the tenancy by mu-
Construing California Civ. Code, tual consent dispenses with the
§§ 789, 790, and see, also. King v. service of the statutory notice.
Connolly, 51 Cal. 181. Thomas v. Sanford, 71 Me. 548.

8 Rev. St. 1858, c. 94. §§ 1, 2. 04 Rev. St. (8th Ed.) p. 2457,
But it is said, however, that this § 7. See, also. Post v. Post, 14
statute relates only to the notice Barb. (N. Y.) 253; Livingston v.
necessary to maintain an action of Tanner, 14 N. Y. 64; Burns v.
forcible detainer and that a land- Bryant, 31 N. Y. 453; Larned v.
lord of a tenant at will may enter Hudson, 60 N. Y. 102. A persoa
at any time without notice. Gor- who holds the premises under a
don V. Gilman, 48 Me. 473; With- mere license Is not entitled to no-

TENANCY AT WILL.

219

souri/° ]\Iichigan/^ Iowa/- Minnesota," New York/* a thirty-
days' notice to quit is required to terminate a tenancy at will.
The same period is applicable in Delaware to estates at will.^^ In
Oregon, a notice equal to the intervals between the pay^ment of
rent is required.^" In Rhode Island written notice is required but
it may be of any length that pleases the party giving it. It need
not be a reasonable notice.^' In New Jersey a three months' no-
tice to quit is required both in tenancies at will and tenancies at
sufferance.^® In Michigan it is provided ^^ that all estates at will,
where the rent is payable at periods less than three months, may
be determined by notice equal in time to the inter\'al between
the rental payments. In Vermont six months' written notice to

tice under the New York statute
as a tenant at will. Doyle v.
Gibbs, 6 Lans. (N. Y.) 80.

10 Rev. St. § 3078 construed in
Tarlotting v. Bokern, 95 Mo. 541,
8 S. W. Rep. 547; Carby v. Mc-
Spadden, 63 Mo. App. 648.

11 Comp. Laws 1897, § 9257, con-
strued in Simons v. Detroit Twist
Drill Co., 11 Detroit Leg. N. 141,
99 N. W. Rep. 862.

12 Kuhn V. Kuhn, 70 Iowa, 682,
28 N. W. Rep. 541; Burden v.
Knight, 82 Iowa, 584, 48 N. W.
Rep. 985; German Bank v. Herron,
111 Iowa, 25, 82 N. W. Rep. 430.

13 Minn. Gen. St. § 5873; Grace
v. Michaud, 50 Minn. 139. 52 N. W.
'Rep. 390; Eastman v. Vetter, 58
N. W. Rep. 989, 57 Minn. 164;
Hunter v. Frost, 47 Minn. 1, 49
N. W. Rep. 327; Gen. St. Minn,
c. 75, § 40; Van Brunt v. Wallace,
88 Minn. 116, 92 N. W. Rep. 521.

i*Peer v. O'Leary, 28 N. Y. S.
687, 8 Misc. Rep. 350, 59 St. Rep.
594, holding also that it is not
necessary that the notice expire
at the end of a month.

15 Bonsall v. McKay, 1 Houst.
(Del.) 520.

10 Forsythe v. Pogue, 25 Oreg.

481, 36 Pac. Rep. 571; Hill's Code,
§ 2987.

1" Payton v. Sherburne, 2 Atl.
Rep. 300, 15 R. I. 213.

18 Kenin v. Guvernator (N. J.
Law), 48 Atl. Rep, 1023, constru-
ing Laws 1898, p. 556, §109. This
notice, it seems, may be oral.
Kenin v. Guvernator (N. J. Law),
48 Atl. Rep. 1023. It has also
been held in New Jersey that a
half year's notice to quit is requis-
ite in all cases of uncertain tent-
ancy. McEowen v. Drake, 14 N.
J. Law, 523; Hankinson v. Blair,
15 N. J. Law, 181.

19 How. Ann. St. § 5774.

20 Barium v. Berger, 125 Mich.
504, 84 N. W. Rep. 1070; Holmes
V. Wood, 88 Mich. 435, 50 N. W.
Rep. 323; Huyser v. Chase, 13
Mich. 98. A statute in Michigan
is applicable to a tenancy void un-
der the Statute of Frauds. Huj--
ser V. Chase, 13 Mich. 98; and to a
tenancy from month to month
without an understanding that
the tenant would vacate when pos-
session was required by the land-
lord. Woodrow V. Michael, 13
Mich. 1,87. The statutory notice
which is required in Michigan is

220 LAW 05^ LANDLORD AND TENANT.

quit is required.-^ By some of the cases it has been held that
the statutory requirement that a tenancy at will can only be ter-
minated on notice, is to be strictly complied with. It is bind-
ing on the tenant as well as on the landlord. An implied sur-
render will not be recognized as notice as when for example a
tenant at will, without giving his landlord the statutory notice
in writing sends or hands the landlord the key of the premises
or leaves it at his of&ce or residence with a person whom he finds
in charge.-- But the acceptance of a surrender by the landlord
may dispense with notice. By very many of the cases it has been
held that a statute requiring a notice to quit in the case of a
tenancy at will does not apply where the tenant voluntarily does
some act which when it has been assented to by the landlord will
constitute a surrender. Such statutes requiring notice do not
usually preclude the parties from terminating the tenancy by
voluntary agreement nor do they prevent the tenancy from be-
ing put an end to by any act which in law will terminate the re-
lation of landlord and tenant as, for example, where the tenant
denies the title of his landlord by holding adversely and the
landlord may then treat him as a trespasser.-^ Where a statu-
tory enactment requires a notice to be given in order to terminate
a tenancy at will the tenancy of course will continue until the
expiration of the period mentioned in the notice and the pos-
session and occupation of the tenant are a lawful possession and

dispensed with in the case of a months a tenant is entitled to re-
tenancy on condition though it is ceive a three months' notice to
required in the case of a tenancy quit under the Michigan statute,
at will. But in the latter case the How. Am. Statute, § 5774. Hoff-
tenant is entitled to a reasonable mani v. Clark, 63 Mich. 175, 29 N.
notice and in determining what a W. Rep. G95.

reasonable notice is the courts 21 Blanchard v. Powers, 67 Vt.

will be guided by the statutory 403, 31 Atl. Rep. 848.

requirements of notice in the case 22 Barlow v. Wheelwright, 22 Vt.

of a tenancy at will. Shaw v. 88; Withers v. Larrabee, 48 Me.

PToffman, 25 Mich. 162. See, also, 570, 573.

Hilsendeger v. Scheich, 55 Mich. 23 Jackson v. French, 3 Wend.
468, 21 N. W. Re|). 894, holding (N. Y.) 337; Chamberlain v. Don-
that a notice to quit indispensable ohue, 45 Vt. 50; Wilson v. Wat-
to the recovery of the possession. kins, 3 Pet. (U. S.) 43; Amick v.
In the absence of any agreement Brubacker, 101 Mo. 473, 14 S. W.
by a tenant at will to pay rent at Rep. 627.
shorter intervals than three

TENANCY AT WILL. 22 JL

occupation until that day ai'rivca."' lie may enforce all liij
rights as a tenant against both the landlord and strangers until
the expiration of the period of the notice. And it follows from
this the tenant will be liable for rent during the time of the
notice given for the determination of the estate whether he con-
tinues to occupy the premises or not.-''

§ 158. The termination of the period of notice. A notice to
quit which is required under a statute in a tenancy at will may
if served a sufficient time prior to the commencement of pos-
sessory proceedings require the tenant to quit at any day.-® So,
a notice to quit at the expiration of fourteen days is a good
notice under a statute requiring a three months' notice to quit
where no proceedings are instituted within three months.-^

24 Smith V. Rowe, 31 Me. 312;
"Withers v. Larrabee, 48 Me. 570.

25 Withers v. Larrabee, 48 Me.
570, 573. The contrary was held
in Betz v. Maxwell, 48 Kan. 142,
29 Pac. Rep. 147. In that case a
tenant at will deserted the prem-
ises which he had under the lease
without giving notice to quit. A
notice to quit was required by the
statute. Then the landlord en-
tered upon the premises. It was
held that the giving of the notice
required by the statute was dis-
pensed with and that the landlord
could not recover rent for any por-
tion of the term which elapsed
after he took possession.

26 Stickney v. Burke, 64 N. H.
377, 10 Atl. Rep. 852.

27 Hogsett V. Ellis. 17 Mich. 351.
"When tenancies at will are ter-
minated by notice, the real ques-
tion is not how long a notice shall
be given, or is requisite to ter-
minate it. Notice to quit the pos-
session, or something equivalent
to it, terminates it, and the ques-
tion necessarily remaining is how.
long a time has the tenant to va-
cate the premises? Under a notice

to quit, or upon the termination of
a tenancy at will in any other
manner, a tenant has the right to
a reasonable time to vacate the
premises, depending upon the cir-
cumstances of the case. Under a
lease of agricultural lands he may
be entitled to emblements, and can
remain long enough after the
lease determines to gather the
crops that he has sown, which
may be for the greater part of the
year. In a lease of buildings the
tenant, when the lease ends, may
have nothing in them, and so
would need no time to vacate
them. In a case like the one at
bar, where the premises are used
for the storage of heavy machin-
ery, the lessee should have rea-
sonable time to procure other ac-
commodations and remove his
property. A case might arise
where it would be necessary to
erect buildings. Store-houses
might be plenty in the vicinity or
there might be none. No rule can
be laid down to apply to all cases."
The court, by Taft, J., in Amsden
V. Floyd, 15 Atl. Rep. 332, 60 Vt
386.

222 LAW OF LANDLORD AND TENANT.

§ 159, The commission of waste by a tenant at will. Volun-
tary waste when it is committed by a tenant at will is ipso facto
a determination of the tenancy at will and the tenant is there-
after a tenant at sufferance. He has also been said in some case
to be a trespasser thereafter so that an action in the nature of
qiiare clausum f regit may be maintained against him by the
landowner or landlord.-^ This liability to a forfeiture and to an
action for trespass is in theory based upon an implied covenant
on the part of the tenant at will to use the demised premises in a
proper manner. He will be liable accordingly in the case of a
demise of a farm for cutting timber for other purposes than the
repair of fences which it is his duty to keep in repair or if he
allows a meadow to be injured and fruit trees or other trees to
be destroyed.-® In the case of land not intended to be used for
farming purposes the same principle is applicable. The cov-
enant to use the demised premises in a proper and suitable man-
ner which is implied in every lease is regarded as a condition sub-
sequent in the case of tenancy at will the breach of which shall
operate as a forfeiture. Wliether there has been waste is deter-
mined by general rules and principles. The authorities are not
at all harmonious upon the question whether the landlord in a
tenancy at will can terminate it because the tenant is gniilty of
permissive waste as distinct from voluntary waste. Several of
the English cases hold that the lessor cannot determine the ten-
ancy at will on account of permissive waste by the tenant for
the reason that the provisions of the Statute of Gloucester re-
quiring the tenant to be accountable for permissive waste refer
only and exclusively to tenants for years.^° But on the othei-
hand it has been held in England that a tenant for years may
recover against his tenant at will for permissive waste, and this
rule is based upon the reasoning that, inasmuch as the tenant for
years is liable to his landlord for the permissive waste of his sub-

2sDanio].s v. Bonrl, 21 Pick. Com. 146; Co. Litt. 5.5b; Countess

(Mass.) 367, 371, 32 Am. Dec. 269; of Shrewsbury's Case, 5 Coke, 13b.

Phillips V. Covert. 7 Johns. (N. 29 Chalmers v. Smith, 152 Mass.

Y.) 1. See, also, Suffern v. Town- 561.

send, 9 .Johns. (N. Y.) 3.5; Wright so Pomfret v. Ricroft, 1 Saund.

V. Rol)erts, 22 Wis. 161; Pettengill 323a; Harnett v. Maitland, 16 Mce.

V. Evans, 5 N. H. 54; 2 Black. & Wei. 256, 262.

TENANCY AT WILL. 223

tenant, he ought to have a remedy over against the person who is
in fact responsible for the permissive waste.^^

8 160, The assignability of the tenant's interest in an estate
at will. The proposition is sometimes laid down in the eases
very broadly that a tenant at will cannot assign his term or es-
tate ^^■ithout the consent of his landlord. If this be true in its
general sense its truth depends rather upon the character of the
tenant's interest or term which is always uncertain and defeasible
at the will of the landlord, than upon any inherent incapacity in
the lessee to assign. Owing to this quasi lack of assignability of
the tenant's interest in a term at will a person who enters upon
the premises under an assignment from the tenant at will is a
disseizor or trespasser so far as the lessor is concerned and he
may maintain trespass against him without giving him notice to
quit.^^ Hence from this it follows that the assignment of the
tenant's interest does not per se make his assignee a tenant at
will.^^ If, however, the landlord sues the assignee of the tenant
at will for rent or for use and occupation and the assignee pays
the rent claimed or the landlord receives the value of the use and
occupation the assignee will be then regarded as a tenant at will
and the landlord will be estopped by his conduct to assert the
contrary.'* An under lease by the tenant at will may have the
same effect on the duration of the tenancy as an assignment. It
is not material to the general principle that the attempted under
lease or assignment by the tenant at will is void.'^ It cannot be

31 Panton v. Isham, 1 Salk. 19; 44, 22 N. E. Rep. 69, 5 L. R. A. 66;
Cudlip V. Rundle, Garth. 263. Cooper v. Adams, 6 Cush. (Mass.)

32 Cunningham v. Holton, 55 Me. 87; King v. Lawson, 98 Mass. 309;
33, 36; Reckhow v. Schank, 43 N. Howell v. Howell, 29 N. Car. 496,
Y. 448; Austin v. Thompson, 45 47 Am. Dec. 335; Melling v. Leake,
N. H. 117. See, also, Cooper v. 16 Com. Bench (N. S.) 652; Pin-
Adams, 6 Cush. (Mass.) 87; 1 horn v. Souster 8 Exch. 763. A
Cruise Dig. 244, tit. 19, c. 1, § 7. tenant at will has no estate which
As to the non-assignability of the he can assign to any other per-
interest of a tenant at will, see son. Dingley v. Buffum, 57 Me.
further Packard v. Cleveland, etc., 581.

Co., 46 111. App. 244, 245; Whitte- ss King v. Lawson. 98 Mass. 309.

more v. Gibbs, 24 N. H. 484, 489; S4 Cunningham v. Holton, 55 Me.

Dark v. Donelson's Lessee, 2 Yerg. 33.

{Tenn.) 249, 24 Am. Dec. 485; «6 Birch v. Wright, 1. T. R. 378.
Appleton V. Ames, 150 Mass. 34,

224 LAW OP LANDLORD AND TENANT,

said however that the assignment or under lease ipso facto ren-
ders the tenancy at will at an end. For a tenancy is at the will
of both parties and if the assignment is without the knowledge
of the landlord it does not determine the will until he knows
of it. Nor will the assignment work a determination of the
will and put an end to the relation of landlord and tenant until
knowledge of it has come to the landlord and the latter has
done some act which indicates his intention to terminate the
estate at will. If the landlord shall expressly or by implica-
tion elect to treat the original tenancy at will as continuing
after the assignment he may do so and continue to hold the
original tenant liable for the rent. If on the other hand he
shall elect to regard the assignment or subletting as a termina-
tion of the tenancy at will the original lessee is thereafter free
from responsibility to him and the landlord may either treat the
subtenant as a trespasser or as a tenant at will unless he shall
proceed to enter into other arrangements with him as to his ten-
ure of the premises. ^^

§ 161. The right of a tenant a wiU to recover damages for an
injury to the land. By virtue of the well-established rule that
any person having an interest in and a proprietory right to
the possession of land may recover damages for an injury to
his interest and right, a tenant at will may recover for a tres-
pass on the land or for an eviction by a stranger, or for any
conduct on the part of another which prevents him from hav-
ing the full use and enjoyment of the land according to the
amount and character of his right. The tenant at will has
such an interest as will enable him to maintain an action of
trespass against any person who interferes with his present
possession and enjoyment of the land and an action of tres-
pass on the case or some similar action in those states which
have adopted the modern system of code procedure against any
person who injures him in his possession and enjoyment by main-
taining a nuisance.'*' And in one case it was held that a tenant
at will may maintain trespass even against his own landlord
where the latter, before the lease had been legally determined,

3' Pinhorn v. SouRter, 8 Exch. (Mass.) 135; Hilburn v. Fogg, 9&

7C5; Jones v. Clark, Hard. 47; Mass. 11; Bulwer v. Bulwer, 2 B.

IJttle V. Palllster, 4 Me. 20!). & Ad. 470.

s- Foley v. Wyeth, 2 Allen

TENANCY AT WILL.

ilo

had entered upon the premises and by his conduct caused dam-
age to the personal property of the tenant.^* AVhere a stranger
cuts timber on land which is occupied by a tenant at will, the
tenant at will as well as the owner of the reversion may re-
cover damages according to their respective interests in the land.^®
So an action for damages for the destmction of uncut grass
may be maintained by a tenant at will against a railroad whose
negligence *° caused the damage. Hence where grass growing on
land which is occupied by one as a tenant at wall is burned by
reason of the negligence of a railroad company the tenant at will
may recover for the same though for any permanent injury to,
the freehold the owner only could recover. The measure of the
tenant's damages will be the difference between the usable value
of the land to him before and after the grass was burned, do^^ii
to the time of the trial. '^^

38 Foley V. Wyeth, 2 Allen
(Mass.) 135. "A tenant at will
has an estate, -which must first be
terminated, before he will cease
to have a right to continue in pos-
session. Such termination may be
brought about by his surrendering
his tenancy, or by any act incon-
sistent therewith (1 Cruise, 273);
or by the decease of either party
(4 Com. Dig. Estates, H. 7); or
by making a lease to another
(Co. Litt. 57a); or by giving no-
15

tice in writing lor tne purpose,-
by either party, thirty days at
least having elapsed thereafter.""
Wheeler v. Wood, 25 Me. 287.

39 2 Coke on Lit. 57a. See, also,
Hayward v. Sedgly, 31 Am. Dec.
64; Brown v. Bates, Brayton (Vt.)
230.

40 St. Louis; etc., R. Co. v. Hall,
71 Ark. 302, 74 S. W. Rep. 293.

41 St. Louis, etc., Co. v. Hall, 71
Ark. 302, 74 S. W. Rep. 293.

CHAPTER VTII.

TENANCY AT SUP'FERANCB.

§ 162. The definition of a tenancy at sufferance.
163. A tenancy at sufferance arising on the termination of a ten-
ancy at will.
. 1G4. A tenancy at sufferance by holding over.

165. The grantor in possession after the delivery of his deed.

166. A servant or agent in the possession of his employer's land after

the contract is at an end.

167. Mortgagor in possession after sale or condition broken.

168. When an undertenant becomes a tenant at sufferance.

169. Necessity for notice to quit.

170. Right of a tenant at sufferance to lease.

171. The liability of a tenant at sufferance to pay rent.

172. Action of trespass by the landlord against the tenant at suffer-

ance.

§ 162. The definition of a tenancy at sufferance. A tenancy
at sufferance is one which is created by the wrongful holding
over and remaking, in possession of a tenant whose original en-
trance upon the land was lawful The word wrongful when
used in this connection merely means that the holding over is
without any right founded on contract or other legal basis. It is
:nearly equivalent to an illegal holding over. Thus, a tenant at
sufferance has been defined to be one who had first come in by a
lawful demise but who after his estate is at end wrongfully or
without the consent of the landlord holds over.^ This estate is
iKjt the result of contract. It is created solely by the delay or
forbearance of the landlord in not ousting the tenant after the
expiration of the tenancy. It is the most insecure and most in-
significant of all tenures. The tenant at sufferance differs in
vary litllc rcom a trespasser. The one fact that distinguishes
him from a trespasser is that his original entrance was lawful
while the original entrance of the trespasser is unlawful and he
is a wrongdoer from the beginning. Strictly speaking tenancy

iCo. T.itt. 57b; 4 Com. Dig. Estates, 1.

TENANCY AT SUFFERANCE.

227

by sufferance is a mere fiction of law for there can be no true
tenancy without a contract which involves the assent express or
implied of the landlord to the possession of the tenant. The
tenancy at sufferance was merely a device of the early common
law judges to prevent the creation and running of adverse pos-
session by the tenant holding over. After the expiration of his
term the tenant was in fact a mere trespasser or intruder and a
tenancy at sufferance was created to prevent the intruder from
disputing the landlord's title and holding adversely. And aside
from all this the tenant holding over could not be regarded as a
trespasser until the landlord actually entered upon possession of
the premises as the tenant's original entry had been lawful
though his holding over was luilawful.^

§ 163. A tenancy at sufferance arising on the termination of
a tenancy at will. It is a general rule that on the termination
of a tenancy at will the tenant if he remains in possession be-

2 So much of law depends upon
accurate definitions that it may
be well to consider carefully the
following, as well as all defini-
tions: "A tenant at sufferance is
one who comes into possession of
land by lawful title, but who holds
over by wrong after the termina-
tion of his term. Fielder v. Childs,
73 Ala. 567, 577; Godfrey v. Wal-
ker, 42 Ga. 562, 574; Hanson v.
Johnson, 62 Md. 25, 29, 50 Am.
Rep. 199; Kellogg v. Kellogg, 6
Barb. 116, 130; Rowan v. Lytle,
11 Wend. (N. Y.) 616, 618; Jack-
son V. Cairns, 20 Johns. (N. Y.)
301, 305; Emerson v. Emerson
(Tex.), 35 S. W. Rep. 425, 426.
When a tenant has come rightfully
into possession of land by permis-
sion of the owner and continues
to occupy the same after the time
for which, by such permission, he
has a right to hold the same, he
is said to be a tenant at suffer-
ance. In the language of the
elementary writers he is one who
comes in by right and holds over

without right." He holds with-
out right and yet is not a tres-
passer. Bright V. McOuat, 40 Ind.
521, 525. And again, a tenant at
sufferance is one who entered by
a lawful demise or title, and after
that has ceased wrongfully con-
tinues in possession without the
assent or dissent of the person
next entitled. Willis v. Harrell,
118 Ga. 906, 45 S. E. Rep. 794, 795.
So tenancy by sufferance is a ten-
ancy of such a nature that there
is by necessary implication an ab-
sence of any contractual relation
between the owner and the ten-
ant, and so if, during such ten-
ancy, there be any express permis-
sion or assent given by the owner,
the tenancy becomes one at will.
Willis V. Moore, 59 Tex. 628, 637,
46 Am. Rep. 284. So it has been
said that an estate at sufferance
is an estate created not by the
consent but by the laches of the
owner. Rowan v. Lytle, 11 Wend.
(N. Y.) 616, 618.

22S LAW OF L.VNDLOED ^VIsD TENANT.

comes a tenant at sufferance, in tlie absence of an agreement
creating a tenancy of a different character.' It is not material
for what reason the tenancy at will is determined so long as a
new lease is not entered into, or the premises are not surrendered
to and accepted by the landlord. Thus on the termination of a
tenancy at will by the death of the lessor the tenant at will be-
comes a tenant at sufferance of the lessor's heirs.* So, also, in
case a tenancy at will is terminated by a demise for years given
by the landlord to a stranger the former tenant at Avill at once
becomes a tenant at sufferance.^ Where land which has been
leased to a tenant at will is sold under an execution against the
lessor the tenancy at will is ipso facto at once terminated. The
tenant at will of the former owner is thereafter a tenant at suf-
ferance of the purchaser at the execution sale, being made so by
the sale. The purchaser or his lessee may thereafter treat the
tenant as a tenant at sufferance and may after notice, when it is
required by a statute, recover possession.*' So, too, a volun-
tary sale and conveyance of the premises by the landlord termi-
nating the tenancy at will converts the tenant at will into a tenant
at sufferance of the vendee,'^ without any attornment or action
on the part either of vendee or vendor.

§ 164. A tenancy at sufferance by holding over. A person
who, being a tenant at will or for a term of years, holds over
after the expiration of his term in the absence of proof that the

3 Doe V. Turner, 7 M. & W. 226, Mass. 54, 29 N. E. Rep. 221; Dil-

9 M. W. 643; Esty v. Baker, 50 Ion v. Brown, 11 Gray (Mass.)

Me. 325, 79 Am. Dec. 616; Bene- 179.

diet V. Morse, 1(J Met. (Mass.) 223; « Marsters v. Cling, 163 Mass.

Keay v. Goodwin, 16 Mass. 1; Ris- 477, 40 N. E. Rep. 763, also holding

ing V. Stannard, 17 Mass. 282. that under the statute a forcible

* Reed v. Reed, 48 Me. 688; entry or detainer by the tenant

Knight V. Quigley, 2 Camp. 505; need not be shown, nor need it be

Co. Litt. 57b. shown that the occupant ever held

6 Hildreth v. Conant, 10 Met. of, or attorned to, the new owner.
(Mass.) 298. A. verbal agreement See, also. Lash v. Ames, 171 Mass.
by the owner of land that a person 487, 50 N. E. Rep. 996.
Is to occupy it while he lives with- 7 Winter y. Stevens, 9 Allen
out paying rent makes the oc- (Mass.) 526; Lash v. Ames, 171
fupant a tenant at will, and he Mass. 487, 50 N. E. Rep. 996; How-
becomes a tenant at sufferance at ard v. Merriam, 5 Cush. (Mass.)
once where the owner executes a 563, 574; Dallas v. Pool, 3 Met.
lease of the jiremises for a term to (Mass.) 350,
another. Hooton v. Holt, 139

TENANCY AT SUFFERANCE, 229

landlord has consented to such holding over, is a mere tenant at
sufferance.* So, the tenant who holds over after the termination
of his lease under an agreement with a person who had no au-
thority to permit him to do so, is a tenant at sufferance. Thus,
for example, a person who, on the termination of his lease, goes
to one whom he supposes to be the agent of his landlord and this
latter person states he may continue in possession until a lease
can be ai-ranged for with the landlord, is a tenant at sufferance.
So, a tenant for the life of another,^ or the lessee for a term of
years of a tenant for life who remains in possession after the
death of the person who is his lessor becomes a tenant at suffer-
ance.^" So, generally a tenant for years of a tenant for life, who,
without the consent of the remainderman holds over after the
termination by death of his term," or the tenant who continues in
possession after the termination of the lessor's estate^^ becomes
thereby a tenant at sufferance.^^ But the general rule that the
tenant holding over after the termination of his estate is thereby
a tenant at sufferance is recognized only where the parties are
themselves silent. The presumption that the tenant holding
over is holding by sufferance may be rebutted though the burden
of proof to do so is upon the tenant holding over. He may show
that the landlord has so acted or has so spoken that the tenancy

sHauxhurst v. Lobree, 38 Cal. o Allen v. Hill, Cro. Eliz. 238;

563; Sutton v. Hiram Lodge, 83 Co. Litt. 57b; Comyns' Dig. "Es-

Ga. 770, 10 S. E. Rep. 585, 6 L. R. tates." I.

A. 703; Brown v. Smith, 83 111. lo Co. Litt. 57b. And see Shields

291; Wheeler v. Wood, 25 Me. 287; v. Atkins, 3 Atl<. 560, 562.

Keay v. Goodv.-in, 16 Mass. 1; Ris- " Roe v. Ward, 1 H. Bl. 96, 99.

ing v. Stannard, 17 Mass. 282; See Guthman v. Vallery, 51 Neb.

Finney's Trustees v. City of St. 824, 71 N. W. Rep. 734; Tarry v.

Louis, 39 Mo. 177; Russell v. Fab- Tarry. 14 N. Y. 430, 433; Co. Litt.

van, 34 N. H. 218; Livingston v. 57b.

Tanner, 14 N. Y. 64; Jackson v. 12 Simkin v. Ashurst, 1 Cr. M.

McLeod, 12 Johns. (N. Y.) 182; & R. 261, 4 Tyr. 781.

Worthington V. Globe Rolling Mill, i^-The lessee of the tenant in

9 Am. Law Rec. 693, 6 Wkly. Law dower of by the curtesy who

Bui. 235, 6 Ohio Dec. 1038; Will- holds over without the consent of

iams V. Ladew, 171 Pa. St. 369, 33 the remainderman after the death

Atl. Rep. 329, 37 W. N. C. 100; of his lessor is a tenant at suffer-

Fitzpatrick v. Childs, 2 Brewst. ance. Miller v. Mainwaring, Cro.

(Pa.) 365, 23 Leg. Int. 197, 6 Car. 397; Guthman v. Vallery, 51

Phila. 135; McNamara v. O'Brien, Neb. 824, 71 N. W. Rep. 734.
2 Wyo. 447.

230 LAW OF LANDLORD AND TENANT.

at sufferance was presumed uever to have existed, or that it has
been converted into some other tenancy.^* The mere silence of
the huidlord for a short time after the expiration of the term,
while tile tenant is holding over is not enough alone to create affiy
presumption that the tenant is anything else but a tenant at suf-
ferance. The presumption that the tenant holding over is a
tenant at sufferance implies or requires that there shall be no
existing agreement or understanding between the parties exe-
cuted or implied after the holding has commenced. If on the
facts it appears that the holding over was with the consent of tho,
landlord, shown either by his conduct or by his language, or by
such a character or degree of silence in connection with the con-
duct of the tenant, as w411 in equity and fairness estop the land-
lord to assert that the tenant is a trespasser, the tenant will be
thereafter regarded as a tenant at will and not as a tenant at suf-
ferance and the terms of the prior lease may then be considered
in relation to the new tenancy. ^°

§ 165. The grantor in possession after the delivery of his'
deed. It has been held in a few cases that a grantor of real
property who, with the consent of the grantee, continues in the
possession of the property which he has conveyed after the de-
livery of his deed is a tenant at will of the grantee.^'' The
grantor is only a tenant at will where he holds over after the con-
veyance with the grantee's consent. "Where no consent is shown,
either expressly or arising by necessary implication, the grantor
in possession is a mere intruder. In. most cases the grantee must
resort to an action of ejectment to remove him from the prem-
ises. In every case it is clear that the rehitionship of landlord
and tfiifiiit does not exist between grantee and grantor where the
lattei- holds over without the consent of the former, though it has
been held in one or two cases that the grantor who agrees to de-
liver the premises on a certain date and continues in possession
aftci- Ihal (hite ha.s expired without the consent of the grantee Is

i» Moore v. Sniilh, .'jG N. .1. Law, of any instalment all instalments

446, 448, 29 Atl. Rep. 159. shall be forfeited and the vendor

m A purchaser who enters on shall not be compelled to convey,

the premises under an agreement is a mere tenant at sufferance

for the sale of leasehold prem- after default. Doe d. Moore v.

ises which Is to be paid In instal- Lawder, 1 Stark. 308.
nients, with a proviso that in the i<i Currier v. Earl, 13 Me. 216;

event of a <lel;uilt in the payment Hennett v. Robinson, 27 Mich. 26.

TENANCY AT SUFFERANCE. 231

a tenant at sufferance and that anj^ person to whom he has leased
the premises while he possessed the right to remain in them who
holds over after the grantor's right is terminated is a tenant at
sufferance of the grantee. ^^ And it has also been held that an
equitable owner of land who sells the land and thereafter pro-
cures the owner of the legal title to execute a conveyance to the
person to whom he has sold it is merely a tenant at sufferance of
the vendor, where without any agreement authorizing him to
remain, he continues in possession of the land after his sale and
conveyanee.^^ In the absence of proof to the contrary a vendor
of land who continues in, possession after he has delivered a
deed to his vendee will be presumed to do so without the consent
of the vendee. From this presumption of non-consent the fur-
ther inference is drawn in some cases that he is a tenant at suf-
ferance. Clearly the object of the latter presumption is to fur-
nish the vendee with a ready and speedy remedy to obtain the
possession of the land in place of the tedious and expensive rem-
edy by ejectment which he would be put to if the intruder were
not a tenant at sufferance. The presumption of the vendee's
non-consent may always be rebutted by competent proof, and, if
it appears from the proof, that the vendee consented to the hold-
ing over by the vendor, his holding over ceases to be wrongful,
and he is no longer a tenant at sufferance and may be regarded
as a tenant at will.^^

§ 166. A servant or agent in the possession of his employer's
land after the contract is at an end. A servant or agent of the
owner of land who as a part of the compensation for his services
rendered to the owner is permitted by the owner to occupy prem-
ises free of rent on the termination of the contract of agency or
employment becomes a tenant at sufferance of the master.-" The
general rule is that the holding over of the agent or servant must
be without the consent of the master. The termination of the

17 Hyatt V. Wood, 4 Johns. (N. i?Work v. Brayton, 5 Ind. 396,

Y.) 150, 4 Am. Dec. 258; Wood 399.

V. Hyatt, 4 Johns. (N. Y.) 313; if Bennett v. Robinson, 27 Mich.

Bennett v. Robinson, 27 Mich. 26, 26, 30; Wolcott v. Hamilton, 61

30. Also holding that the fact that Vt. 79, 17 Atl. Rep. 39.

the grantee has entered into a con- 20 Eichengreen v. Appel, 44 HI.

tract to reconvey in the future on App. 19; Bristor v. Burr, 120 N.

certain contingencies does not Y. 427, 31 N. Y. S. R. 566, aflBrm-

alter the rule. ing, 12 N. Y. St. Rep. 638.

232

LAW OF LANDLORD AND TENANT.

contract instantly determines all relations between the parties,
and the agent or servant's possession from that minute is wrong-
ful. He is not a trespasser, however, because his original entry-
was lawful. "While the contract of hiring exists a servant who
lives upon his master's land may or may not be a tenant of the
master. The fact that he occupies premises for the necessary
performance of his duty for his employer does not make him a
tenant. Nevertheless, if he continues after his discharge from
the master's service to oecupy the premises he must be regarded
as a tenant at sufferance for he can under no circumstances be
treated as a trespasser because his original entry was lawful.-^
§ 167. The mortgagor in possession after sale or condition
broken. A mortgagor who is in possession of the mortgaged
premises after foreclosure and after the expiration of the period
of redemption,-- or after condition broken^-^ or who continues ia
possession after a sale of the mortgaged premises made under
a power of sale in the mortgage ^* is a tenant at sufferance of
the mortgagee or of the mortgagee's assignee before sale and
after the sale he is a tenant at sufferance of the purchaser.^*

21 School District No. 11 v. Bat-
sche, 106 Mich. 336, 64 N. W. Rep.
196, 29 L. R. A. 576. It was con-
tended by the defendant's counsel
that in order to have a tenancy
grow into one by sufferance it
must have been originally created
by an agreement for one of the
parties, and that as no agreement
for a tenancy ever existed the re-
lation cannot arise. But it was
held that a person in possession
of land lawfully who holds over
without right becomes a tenant at
sufferance if the owner suffers him
to remain in possession a sufficient
longth of time to imply an inten-
tional acquiescence in the occu-
pancy, and it is not necessary that
the previous holding be that of a
tenant.

22 Tucker v. Keeler, 4 Vt. IGl.
22a Jackson v. Warren, 32 111. 31.

23 Kinsley v. Ames, 2 Met.
(r^Iass.) 29. See, also, .Johnson v.

Donaldson, 17 R. I. 107, 20 Atl.
242.

24 Luchs V. Jones, 1 MacArthur
(D. C.) 345; Stedman v. Gassett,
18 Vt. 346, 351; Bodwell Granite
Co. V. Lane, S3 Me. 168, 21 Atl.
Rep. 829; Doe v. Giles, 5 Bing.
421; Doe v. Maisey, 8 Bar. & Ores.
767. "We find from the deed
l)etween the parties that the pos-
session of his estate is secured to
him until a certain day, and that
if he does not redeem his pledge
by that day the mortgagee has a
right to enter and take possession
From that day the possession be-
longs to the mortgagee. And
there is no more occasion for his
requiring that the estate should
be delivered up to him, before he
brings an ejectment, than for a
lessor to demand possession on the
determination of a term. The sit-
uation of a lessee on the expira-
tion of a term, and a mortgagor

TENANCY AT SUFFERANCE. 233

So where a woman and her husband enter into tlie possession
of his land, which he mortgages and then absconds, leaving her
in possession of the land and subsequently he conveyed it to a
third person and it is ultimately sold in forclosure she, after the
sale in foreclosure, is merely a tenant at sufferance of the pur-
chaser.-^

§ 168. When an under tenant becomes a tenant at suflFerance.
An under tenant, after the termination of his lessor's tenancy
is a tenant at sufferance of the original lessor in the absence of
proof that he has been accepted by the latter as a tenant. Hav-
ing come into the possession lawfully by and under his lease the
undertenant is not a trespasser as against the original lessor
though the entry of the latter without notice is not wrongful.-^
An under tenant who is in possession at the determination of the
original lease and is pennitted by the landlord to hold over, is
quasi a tenant at sufferance ; and the mere fact of his continued
occupation, coupled with the payment of rent to the original
lessor for such time of occupation does not raise the presumption
of a new demise to him for years by the original landlord unless
there is some evidence to show an agreement for a demise for a
term of years.-' A purchaser of land belonging to a married
woman under a deed which is signed by both husband and wife,
but which is invalid as to the wife, though passing the husband 's
interest takes only the latter 's interest. On the death of the
husband he becomes a tenant at sufferance of the wife or of her
heirs if she has died before the husband. If the husband shall
survive the wife his estate by the curtesy passes by the deed
subject to the rights of her heirs. But in no case is the occupation

who has covenanted that the mort- I. 215, 2 Atl. Rep. 300; Johnson v.

gagor may enter on a certain day, Donaldson, 17 R. I. 107, 20 Atl.

is precisely the same." By Best, Rep. 242.

C. J., in Doe d. Fisher v. Giles, 5 26 Evans v. Reed, 5 Gray (Mass.)

Bing. 421, on page 427. SOS, 309; Brown v. Smith, S3 111.

25 Taylor v. O'Brien, 19 R. I. 291; Wheeler v. Wood, 25 Me. 2S7.

429, 34 Atl. Rep. 739. In this case See, also, Meier v. Thiemann, 15

it was held that in order that Mo. App. 207.

there should be a tenancy at suf- 27 Simkin v. Ashurst, 1 C. IM. &

ferance it is by no means neces- R. 261, 4 Tyr. 781. As to the ac-

sary that there should have been ceptance of rent and its effect, .see

a prior tenancy between the par- Evans v. Reed, 5 Gray (Mass.)

ties. Kenney v. Sweeney, 14 R. I. 308, 309.
581; Payton v. Sherburne, 15 R.

23-4 LAW OF LANDLORD AND TENANT.

of tlie purchaser adverse to the wife or to her heirs after her
death and Avhen the reversion vests in her or in them they may
assert their rights against the purchaser and may treat him as
their tenant at sufferance.-^

§ 169. Necessity for notice to quit. A tenancy by sufferance
may be terminated at any time by the entry upon the land of the
landlord without any previous notice or demand. In the absence
of a statute requiring the giving of a notice to quit the tenant at
sufferance is not entitled to such notice nor even to the demand
of possession.-® Thus, as is elsewhere explained the landlord
may in the absence of a statute prohibiting it enter upon the
land and oust the tenant using no more force than is necessary.
In some of the states of the United States statutorj^ provisions
are made for a notice to quit in the case of the tenancy at suffer-
ance. These statutes generally specify the period for the notice.
They should be consulted as to the procedure. Under a statute
which requires notice to quit in writing by the owner in the case
of a tenancy at sufferance a mortgagor who has sold his equity
and has thereafter purchased the property at the foreclosure
sale must give notice before he can maintain ejectment against a
tenant by sufferance.^"

28 Griffin v. Sheffield, 38 Miss. v. Holt, 139 Mass. 54, 29 N. E.

359, 390; Day v. Cochran, 24 Miss. Rep. 221; Kingsley v. Ames, 2 Met.

261. (Mass.) 29; Decker v. Adams, 12

20 Joy V. McKay, 70 Cal. 445, 11 N. J. Law, 99; Moore v. Smith, 56

Pac. Rep. 763; McLeran v. Ben- N. J. Law, 446, 449, 29 Atl. Rep.

ton, 73 Cal. 329, 14 Pac. Rep. 879; 159; Livingstone v. Tanner, 14 N.

Hauxhurst v. Lobree, 38 Cal. 563; Y. 64; Torrey v. Torrey, 14 N. Y.

Lee Chuck v. Quan Wo Chong, 91 480; Anderson v. Brewster, 44

Cal. 593, 28 Pac. Rep. 45; Willis Ohio St. 576, 9 N B. Rep. 683;

V. Harrell, 118 Ga. 906, 45 S. E. Wallis v. Delmar, 21 L. J. Exch.

Rep. 794; Petty v. Malier, 10 B. 276; Doe d. Bennett v. Turner, 7

Mon. (Ky.) 591; Robie v. Smith, Mee. & Wei. 22G, 235; Doe d. Roby

21 Me. 114; Reed v. Reed, 48 Me. v. Maisey, 6 B. & C. 767; Doe d.

388; Clapp v. Plain, 18 Me. 264; Moore v. Lawder, 1 Stark. 308;

Stockwell V. Marks, 17 Me. 455, Thunder v. Belcher, 3 East, 450.
461; Wamsganz v. Wolff, 86 Mo. :•<' Johnson v. Donaldson, 17 R.

App. 206; Howard v. Carpenter, 22 I. 107, 20 Atl. Rep. 242. As to the

Md. 10; HolUs v. Pool, 3 Met. sufficiency of a notice in Wiscon-

(Mass.) 350; Creech v. Crockett, sin, see Minard v. Burtis, 83 Wis.

5 Cush. (Mass.) 133; Evan.s v. 267, 53 N. W. 509.
Reed, 5 Gray (Mass.) 308; Hooton

TENANCY AT SUFFERANCE. 235

§ 170. Right of a tenant at sufferance to lease. A tenant at
sufferance has no interest which will support a lease by him ex-
cept as against himself.^^ In other words one tenant at suffer-
ance cannot create another tenant at sufferance for this tenancy-
is usually the result of the operation of rules of law rather than
of the acts of the parties. If he shall attempt to make a lease his
so-called tenant has no other or better right against the original
landlord than the tenant himself.^-

^ 171. The liability of a tenant at sufferance to pay rent.
At the common law rent as such is not recoverable by the land-
lord from tenants at sufferance "because it was the folly of the
owners to suffer them to continue in possession after the deter-
mination of the preceding estate." ^^ This reason for the rule is
more fanciful than substantial. The true reason for the non-
liability of the tenant at sufferance for rent may be found in
the absolute and utter absence of any privity of contract be-
tween the land owner and the tenant at sufferance for, where he
is strictly a tenant at sufferance, he always holds without the
consent of the landlord and often he may claim to hold adversely.
Hence even for use and occupation no action will lie. An illus-
tration of such a holding by a tenant at sufferance will be found
in the case of a vendor who is holding over after the delivery of
a conveyance to the vendee, or a tenant at will holding over after
he has denied his lessor's title. In neither case is there a trespass
for the entr>' is lawful but in both cases no rent can be demanded
for there is no privity, nor can an action for use and occupation
be sustained as the relation of landlord and tenant does not exist.
If. however, a tenant at suft'erance is permitted to continue in
the occupation of the premises by the consent of the landlord,
either express or implied; he is thereafter liable for the rent
which may be recovered at common law by means of an action

31 Thunder v. Belcher, 3 East, 14 Pac. Rep. 879, 883; Dixon v.
450; Shopland v. Ryder, Cro. Jac. Haley, 16 111. 145; Emmons v.
5.5. Scudder, 115 Mass. 367, 371; Flood

32 Thunder v. Belcher, 3 East, v. Flood, 1 Allen (Mass.) 217;
450. Delano v. Montague, 4 Cush.

33 1 Cruise, Dig. tit. 9, c. 2, § 6; (Mass.) 42, 45; Merrill v. Bullock,
4 Kent, Com. 116; 2 Black. Com. 105 Mass. 486, 490; Poole v.
151. See, as sustaining the text, Engelcke, 61 N. J. L. 124, 125, 38
Smith V. Houston, 16 Ala. Ill; Atl. Rep. 823.

McLeran v. Benton, 73 Cal. 329,

236 LAW OF LANDLORD .Us^D TENANT.

based on the fiction of a implied promise on the part of the ten-
ant to pay what the use and occupation of the premises are
reasonably worth to him.^* Some cases have gone further than
this in liolding that a tenant at sufferance after the landlord's
demand for, and the tenant's refusal of possession becomes liable
for the rent or, at least, for the reasonable value of the use and
occupation of the premises,^^ thus creatino^ a liability where
there is no possibility of shoAving an assent by the landlord either
express or implied to the holding over of the tenant at suffer-
ance. In Massachusetts it has been provided by statute that "ten-
ants at sufferance in possession of lands or tenements shall be
liable to pay rent therefor for such time as they may occupy or
detain the same," and that "such rent may be recovered in an
action of contract."^® This statute does not define to whom a
tenant at sufferance shall be liable to pay rent, or by whom he
may be sued. The statute was clearly intended to confer an
action in contract for the value of the use and occupation wher-
ever the relationship of landlord and tenant by a lease for years
or at will, or by permission or assent, express or implied had ex-
isted betwen the parties or between the defendant and any per-
son with whom the plaintiff was in privity of estate, though the
plaintiff might not, but for the statute, have been in sufficient
privity with the defendant to maintain the action. The statute
was not meant to make an occupant of land liable to an action
of contract for use and occupation by a person whose title he had
never admitted, either expressly or by implication but had al-
ways denied and whose tenant he had never been in any sense.*^

3* Merrill v. Bullock, 105 Mass. sc Mass. Rev. St. § 23, and Gen-

486, 490; Keay v. Godwin, 16 eral Sts. c. 90, §§ 25, 26.

Mass. 1, 4; Gould v. Thompson, 4 si Merrill v. Bullock, 105 Mass.

Met. (Mass.) 224, 228; Harding v. 486, 492. See, also, Bunton v.

Crethorn, 1 Esp. 57; Ibbs v. Rich- Richardson, 10 Allen (Mass.) 260;

ardson, 9 Ad. & El. 849, 1 P. & D. Knowles v. Hull, 99 Mass. 562.

618; Christy v. Tanered, 7 M. & Where a tenancy at will is ter-

W. 127. 9 M. & W. 438, 12 M. & W. minated by tlie execution of a

316; Bayley v. Bradley, 5 Com. lease of the premises to a stranger,

Bf'nch, 56. by which the tenant at will be-

a-' Smith v. Singleton, 71 Ga. 68, comes a tenant at sufferance, the

71; Jackson d. Livingston v. statutory liability of the tenant

Niven, 10 Johns. (N. Y.) 335; at sufferance is to the new lessee

Ilight d, Lewis v. Beard, 13 East, alone, and no judgment in favor of

210. the original lessor and the lessee

TENANCY AT SUFFERANCE. 237

§ 172. Action of trespass by the landlord against the tenant
at sufferance. The possession of the tenant at sufferance being
wrongful and, inasmuch as he has no interest as against the
landlord, or even as against a stranger, except so far as posses-
sion is conferred by the delay of the landlord in ousting him, the
landlord may under some circumstances, at the common law and
in the absence of a statute requiring judicial proceedings to be
brought, enter upon the land and eject the tenant by force pro-
vided he uses no more force than is necessar^^^^ He will not be
liable in damages to the tenant at sufferance unless he uses exces-
sive or unnecessary force. Thus, a landlord who, after notice to
quit, enters the premises, while the tenant at sufferance was
temporarily absent, by forcing the door open and places the ten-
ant's chattels outside and re-fastens the door is not liable to the
tenant at sufferance.^^ And where the tenant at sufferance after
being thus ejected re-enters and re-occupies the premises, he be-
comes thereby a trespasser from the day of his re-entry. The
landlord cannot bring an action of trespass against his tenant
at sufferance until he shall by an actual entry upon the land or
by some other positive or public act declare his possession to be
wrongful and adverse. For the original entry of the tenant
at sufferance is lawful and hence he cannot be a trespasser while
he continues to hold possession under his original entry. Thus,
an action of trespass cannot be maintained by the landlord
against the tenant at will who becomes a tenant at sufferance by
holding over after his tenancy at will is determined by the oc-
currence of an event over which the tenant at will had no con-
as joint plaintiffs can be rendered. sas the common-law rule has been
Cofran v. Shepard, 148 Mass. 582, abrogated by Gen. St. 1901, § 3S64.
20 N. E. Rep. 181. In New Jersey, Martin v. Allen, 67 Kan. 758, 74
by statute, a landord may recover Pac. Rep. 249.

from the tenant at sufferance a ss Sampson v. Henry, 11 Pick,

"reasonable satisfaction for the (Mass.) 379; Jackson d. Stans-
lands, tenements and heredita- bury v. Farmer, 9 Wend. (N. Y.)
ments held or occupied by the de- 20; Currier t. Gale, 9 Allen
fendant," and when there was a (Mass.) 522; Hillary v. Gray, 6
parol demise or agreement reserv- Car. & P. 284; Newton v. Harland,
ing a certain rent, that rent is the 1 M. & G. 644; Taunton v. Caspar,
exclusive measure of the reason- 7 T. R. 431; Taylor v. Cole, 3 T. R.
able satisfaction to be obtained. 292.

Poole V. Engelcke, 61 N. J. Law, 39 Mussey v. Scott, 32 Vt. 82.

124, 126, 38 Atl. Rep. 823. In Kao.

238

LAW OF LANDLORD AND TENANT.

trol and of which he was perhaps absolutely ignorant, at the
time it happened, as, for example, the death of his landlord, or
a lease of the premises by his landlord to another.*" The estate
at will is by the occurrence of this event ended, but the tenant
at will is not thereafter a trespasser for the reason that his orig-
inal entry and possession were lawful. Having entered by a
lawful title, he will be presumed to continue to hold under the
lawful title by which he entered, and in subordination to the
title of his landlord until the landlord, by some unquestionable
act or language, expressly disaffirms the relationship which he
bears to the tenant.*^

«> In Rising v. Staunard, 17
Mass. 282, on page 286, the court
said: "It may be fairly deter-
mined from these principles that
when an estate at will is deter-
mined by an event not within the
knowledge of the tenant his hold-
ing over will not amount to a tres-
pass. Suppose, for example, that
the estate is determined by the
death of the lessor in a distant
country, or by his conveyance of
the land, of which the tenant can
by no possibility have notice at
the time of such death or convey-
ance; it would hardly be con-
tended that the tenant by holding
over becomes a trespasser. For,
as the law allows him a reasonable
time to remove after notice given
him to quit, he cannot be bound
to quit without notice."

*i Rising V. Stannard, 17 Mass.
282; Coke, Inst. 57; 2 Black. Com.
150. In the case of the sale of
a house occupied by the tenant
at sufferance the vendee may
remove the goods of the tenant
which he finds in the house after
giving him reasonable notice to
quit, as required by statute, and
no time is specified. The vendee
whose offer to take the goods
wherever the tenant wished is re-
fused by the tenant who neglects
to tell him anything as to how
they shall be disposed of may take
them and store them to the order
of the tenant. By this action he
does not render himself liable for
the conversion of the chattels.
Lash V. Ames, 171 Mass. 487, 50
N. E. Rep. 996.

CHAPTER IX.

WHAT CONTRACTS ARE LEASES.

173. The definition of a lease.

174. Leases in reversion. Inter esse termini.

175. Formal and technical language unneceesary.

176. Words proper to create a lease.

177. Whether a writing is a lease or an agreement to make a lease.

178. Question for court or jury.

179. The intention of the parties.

180. The assent of the parties to a lease.

181. The consideration for the lease.

182. Some circumstances which tend to show an instrument is a

lease.

183. No presumption of tenancy from possession alone.

184. The length of a term in an agreement to make a lease.

185. The term as stated in the lease.

186. Entry into possession as indicating a leases

187. The presumption of an existing tenancy from the pa>Tnent of

money by the occupant to the owner.

188. The necessity for the payment of rent.

189. The performance of a contract to execute and deliver a lease.

190. The specific performance of an agreement to make a lease.

191. The measure of damages for a breach of an agreement to make

a lease.

192. Letters constituting an agreement to make a lease.

193. A lease distinguished from a license.

194. Agreement permitting the cutting of timber.

195. The possession of a tenant under a void lease.

196. A lease with an agreement to sell the premises.

197. Lease or mortgage.

198. The lease of space in a department store.

199. A lease distinguished from a contract to furnish board and

lodging.

200. Agreement to board and care for the owner of land.

201. An entry upon land of another under an option to purchase

from him.
201a. .The mortgagee of the tenant's chattels in possession.

202. Future lease of an unfinished building.

203. Mortgagor or his tenant and a purchaser at a sale under fore-

closure.

204. Contracts for advertising space.

240 LAW OF LANDLORD A2^D TENANT

§ 205. A purchaser of a crop on an execution sale.

206. The judgment debtor holding over after a sale on an execution.

207. Whether an instrument is a lease or a partnership agreement.

208. Contracts for steam heating and for steam and water power.

209. Miscellaneous cases.

210. Whether occupant of premises is servant or tenant.

211. The intention of the parties

212. Illustrations of the rule.

213. The character of the possession of the premises as determining

whether an occupant is a servant or a tenant.

214. The power of the master to remove his servant from the prem-

ises.

215. Contract of hiring by a religious society.

216. A public officer as a tenant of a county.

217. A servant holding over after his employment is at an end.

218. The rights of third parties.

219. The distinction between croppers and tenants.

220. The ownership of the crop.

221. The duties and the rights of the landlord and tenant.

222. The remedies of the parties.

223. Relation of landlord and tenant not presumed between vendor

and vendee.

224. The default or the refusal of either party to perform.

225. An express agreement of the vendee to pay rent.

226. The entry of a vendee under a parol agreement to purchase.

227. The vendor of land continuing in possession after his convey-

ance of the title.

§ 173. The definition of a lease. Many attempts more or less
successful have ])een made to define a lease. Some of the defini-
tions are too broad; others are too narroAv. Considering care-
fully all the elements which enter into the relationship of land-
lord and tenant we may safely define a lease as a contract by
which the owner of lands and tenements, surrenders their pos-
session, occupation, and enjoyment for all purposes to another
person for life or for a fixed and certain term of years or during
the phi-asure of the parties in return for a recompense in money,
goods or services or some other valid consideration to be ren-
dered by tlie i)ersons who, by the contract, become entitled to
the jjossession, with a reversion in the owner after the expira-
tion of the lease. Other definitions will be found in the notes.
Leases are divided into leases in presenti where a present inter-
est passe.ss and leases in reversion.^

1 A lease Is a contract for the tenements on the one side and a
possession and profits of lands and recompense of rent or other in-

WHAT CONTRACTS ARE LEASES. 241

§ 174. Leases in reversion — Interesse termini. All leases
which are meant to commence at a future day are leases in re-
version. AMiere the term is 1o commence at a future date and
no present right of possession is conferred upon the tenant, it
is a lease in reversion and the estate which is meant to be created
by the lease is imperfect and incomplete and becomes perfect
and complete only when the date arrives on which the term is to
beg-in. Hence a lease for a term to begin in the future and a
lease in reversion are synonymous. Both are leases which are to
begin after the termination of another and prior interest in the
premises then existing in another person.- Leases in reversion
are unquestionably valid. " But under such a lease the lessee
merely acquires an interesse termini until the arrival of the date
when his estate is to commence in point of time. A lessor grant-
ing a lease in reversion does not part with the reversion so as
to prevent him from distraining for rent which may become due
under the prior lease after the lease in reversion has been exe-
cuted.' For a grant of a lease in reversion does not convey to
the lessee any right to rent due the lessor under a prior lease.
Where in a lease which is to take effect after the termination of
an existing lease, the latter is recited, and the future lease is
made to commence after such prior lease has terminated, the

come on the other; or else it is a A lease is defined to be a species
conveyance of lands and tenements of contract for the possession and
to a person for life or years, or profits of lands and tenements
at will, in consideration of a re- either for life or during the pleas-
turn of rent or other recompense. ure of the parties; a contract by
4 Cruise's Dig. 115; 4 Bac. Abr. 1, which one person divests himself
tit. "Leases;" 2 Bl. Com. 317; of, and another takes possession
Shep. Touchstone, c. 14. "A lease of, lands or chattels for a term,
doth properly signify a demise or whether long or short; a convey-
letting of land, rent, common, or ance of any lands or tenements
any hereditament, imto another made for life or at will, but always
for a lesser time than he that doth for a less time than the lessor
let it hath in it. * * * This has in the premises. Badger Lum-
word also is sometimes, though her Co. v. Malone. 8 Kan. App.
improperly, applied to the estate, 121. 54 Pac. Rep. 692.
t. e.. the title, time, or interest ~ Allen v. Calvert, 2 East, 376,
the lessee hath to the thing de- 383; Goodtitle v. Finucane, 2 Doug,
mised, and then it is rather re- 565.

ferred to the thing taken or 3 Smith v. Day, 2 'M. &. Wei.,

demised and the interest of the 684, 700.
taker therein." Shep. Touch. 265.

16

242 LAW OF LANDLORD ^VND TENANT.

lease in reversion will take effect at once after the terniiuation of
the prior lease, whatever the cause of the termination of the
prior lease. Hence, under such a situation of affairs, the future
lease takes effect at once upon the termination of the prior lease
by efflux of time, forfeiture or surrender, although in the hahen-
dinii clause of the futura lease it is expressly made to commence
ten or twenty veRvs from the expiration of the earlier lease. On
the other hand, if the lease in reversion is made to commence
say ten or twenty years from a future date, which is also the
date of the expiration of the earlier lease, the future lease will
only commence after the earlier lease has expired or would have
expired by efflux of time, though in fact it has sooner expired
by another cause.* At the common law an estate of freehold
could not be made to commence in futuro without some prior
estate of freehold to support it. Hence a lease for lives could
not be made in reversion unless it was to begin after another
estate in freehold granted by the same instrument. There was
never any objection at the common law to creating an estate for
a term of years to commence in futuro as such an estate was
looked upon as a mere chattel interest for which liveiy of seizin
was not required. In modern times when the necessity for livery
of seizin no longer exists there can be no possible objection to
making a lease for life to commence in futuro. By giving a
lease for a term to commence at a future day, the tenant ac-
quires the right to the possession when the day arrives. In the
meantime should the landlord make a lease to one who enters and
gives him possession, the tenant may maintain an action for dam-
ages.^ But a lease in presenti possession, to commence in the fu-
ture, vests a present interest in the term, and the lessee at once
becomes I'csponsible for the rent.''

§ 175. Formal and technical language unnecessary. At the
-common law the proper and technical words of conveyance to
be used in a lease, in order to create a valid interest in a term
were, "farm let," "betake," "demise," "grant," or other sim-
ilar words appropriate to a grant. ^ It is always advisable in
the interests of certainty to employ some such words in the
granting clause. But no particular words technical or other-

* Woodhouse's Case, 1 Dyer, 93b; ^ Becar v. Flues, 64 N. Y, 518.

Wrottesley v. Adams, 2 Dyer, 177b. s 4 Coke, Litt. 43b.

« Trull V. GranRPr, 8 N. Y. 115.

WHAT CONTRACTS ARE LEASES, 243

wise, or forms of expression are necessarj-^ to constitute a lease.
Any language by which the possession and enjoyment of land
are granted for a limited time, for a stipulated return, creates a
tenancy and is, in effect, though perhaps not in name, a lease.
The law will look to the intention of the parties rather than to
the form of the instrument. In other words if, from the lan-
guage employed by the parties, it is clear that they meant that
one of them shall part with the possession and enjoyment, and
that the other shall, for a consideration, passing from him to
the other, or to some third person, enter into possession, it is a
lease and the language employed is wholly immaterial.® The
form is of no consequence. Nor is it necessarj^ that the word
lease shall be used. If the words are in form a license, or cove-
nant and other requisites of a lease are present, the writing is
a lease.^° Thus letters passing between the parties which contain
all the language necessary to a letting and hiring of premises ^^
or a receipt,^- may constitute a lease. On the other hand, thf,
fact that the parties to a writing call it a lease is not conclusive
that the writing is a lease where from the words of the instru-
ment it appears that the parties meant that it should be some-
thing else or it was meant for some other purpose.^^

9 Jackson v. Hughes, 1 Black. Rep. 18 ; Maverick v. Lewis, 3 Mc-

(Ind.) 421; Mimson v. Wray, 7 Cord (S. C.) 211; Mickle v. Law-

Blackf. (Ind.) 403, 404 (receipt); rence, 5 Rand. (Va.) 571; Mason

Waller v. Morgan, 18 B. Mon. v. Clifford, 4 Fed. Rep. 177.

(Ky.) 136, 142; New York C. & lo Moore v. Miller, 8 Pa. St. 272,

St. L. Ry. Co. V. Randall, 102 Ind. 283; Co. Litt. 45b.

453, 456, 26 N. E. Rep. 122; Pitts- n Ciilton v. Gilclirist, 92 Iowa,

burgh, etc., Co. v. Thornburgh, 98 718 61 N. W. Rep. 384.

lud. 201, 205; Moshier v. Reding, 12 Munson v. Ray, 7 Black.

13 Me. 478, 482; Bacon v. Bowdoin, (Ind.) 403, 404.

22 Pick. (Mass.) 401; Eastman v. i" St. Joseph & St. L. R. Co. v.

Perkins, 111 Mass. 30; Boone v. St. Louis, I. M. & S. Ry. Co., 135

Stover, 66 Mo. 430; Coyne v. Mo. 173, 36 S. W. Rep. 602.

Feiner, 16 N. Y. Supp. 203; Comp- "Where the conveyance of an es-

ton V. Chelsea, 55 Hun, G09, 8 N. tate in land subordinate to that of

Y. Supp. 622; Bussman v. Gauster, the grantor is made for a valuable

72 Pa. St. 286; Miller v. McBaier, consideration and for a definite

14 S. & R. (Pa.) 385; Watson term, the instrument of convey-
V. O'Hern, 6 Watts. (Pa.) 362, ance is a lease. Less than this may
268; Pickering v. O'Brien, 23 Pa. be a lease; more cannot be re-
Super. Ct. Rep. 125; Twiss v. quired." Xev York, etc., Co. v.
Boehmer, 39 Oreg. 359, 65 Pac. Randall, 102 Ind. 453, 456, 26 N.

244

LAW OF LANDLORD AND TENANT.

§ 176. Words proper to create a lease. Words of present
demise such as "doth let/' "doth demise," "agrees to pay for,"
"shall enjoy," "hath set" and to "farm let."^* "thereby set
and let,"^^ "agrees to lease and let,"^** "agrees to let,""
"agrees to lease and let,"^* "hereby leases and demises,"^*
and the like will generally constitute a lease even though the
execution of a formal or future instrument appears to have been
intended.^" The test in all cases seems to be whether the parties

E. Rep. 122. In Louisiana a lease
differs materially from a usufruct.
The latter is a species of owner-
ship, usually for life, with an obli-
gation to pay taxes and repairs,
and it may be mortgaged or trans-
ferred. A lease is a personal right,
giving only the use of the prem-
ises, without any proprietory in-
terest. Hoffman v. Laurans, 18 La.
70. An agreement by a town that,
if a person will build a house to
be used as a market house for the
town, he should have the privilege
of using it for a specified number
of years, at the end of which it
would become the property of the
town, is not a lease. No interest
in land is conveyed. All that is
gi-anted is the right or privilege
of keeping this house as a market,
in conformity with the town ordi-
nances." Brookhaven v. Baggett,
61 Miss. 383. 390.

14 Jackson v. Kisselbrack, 10
Johns. (N. Y.) 336.

i"' Baxter v. Browne, 2 W. Bl.
973.

i« People v. St. Nicholas Bank,
3 App. Div. 544, 38 N. Y. Supp.
379, affirmed in 151 N. Y. 592, 45
N. E. Rep. 1129, in which the par-
ties agreed to execute and ex-
change leases prior to the occu-
pancy of the premises, "such
leases to be drawn on, and this
agreement being subject to, all the
Ijrovi.sions of the blank forms in

ase in" the lessor's building, etc.
The agreement was held a valid
lease, though the formal lease con-
templated was never executed.

17 Kabley v. Worcester G. L. Co.,
102 Mass. 392; Western Boot &
Shoe Co. V. Gannon, 50 Mo. App.
642; Hallett v. Wylie, 3 Johns. (N.
Y.) 44, 3 Am. Dec. 457.

isAverill v. Taylor, 8 N. Y. 44;
Hunt V. Comstock, 15 Wend. (N.
Y.) 665, 667.

I'j Weed V. Crocker, 13 Gray
(Mass.) 219, 224; Bacon v. Bow-
doin, 322 Pick. (Mass.) 491. •

20 Wright V. Trevezant, 3 C. &
P. 441; Doe v. Groves, 15 East,
244; Baxter v. Brown, 2 W. Bl.
973; Hand v. Hall, L. R. 2 Ex.
Div. 355; Doe v. Benjamin, 9 Ad.
& E. 644; Fiske v. Ernst, 62 N. Y.
Supp. 429, 96 N. Y. St. Rep. 429;
Ver Steeg v. Becker Moore Paint
Co. (Mo.), 80 S. W. Rep. 346, 351;
Western Shoe Co. v. Gannon, 50
Mo. App. 642; Bradley v. Metropol-
itan Music Co., 89 Minn. 516, 95
N. W. Rep. 458, 459. An agree-
ment that one "hereby lets, de-
mises and leases," to have and
to hold for a term ending on a
certain date at a rent specified in
instalments "said rental to begin
when the building hereinafter de-
scribed shall be ready for occu-
pancy," and the other party binds
himself to erect a building there-
on, is a lease in presenti for a

WHAT CONTRACTS ARE LEASES.

245

have left anything incomplete, for if not, the agreement may
operate as a present demise.-^ Thus if the owner of the demised
premises agrees to make certain alterations and improvements
and the intending lessee agrees to take a lease when the premises
shall be thus altered and improved, and the term was to begin
from the day the improvements were completed, the writing is
an agreement for a lease and not a lease^ though it contain
words of present demise.-- An agreement for a future formal
lease may be considered as one circumstance showing intention,
though it is never when taken alone conclusive that the writing
is merely an agreement. If there are apt words of present de-
mise, an agreement for a further lease will not make the instru-
ment a mere agreement to execute a lease but the agreement
for a formal lease will be considered as in the nature of a
covenant for further assurances.^^ If, however, there are no

term to begin in futuro, the cer-
tainty of the commencement of the
term being satisfied by the subse-
quent completion of the building.
Colclough V. Carpeles, 89 Wis.
239, 61 N. W. Rep. 836. See, also,
St. Louis Brewing Ass'n v. Nie-
derluecke, 102 Mo. App. 303, 76 S.
W. Rep. 645, citing Doe dem. Phil-
lips V. Benjamin, 9 A. & E. 644;
Chapman v. Bluck, 4 Bing. N. C.
187. The words "I agree to let
and hereby do let" (People v. Kel-
sey, 38 Barb. (N. Y.) 269; Bacon
V. Bowdoin, 22 Pick. (Mass.) 401,
and the words, "A. hath let" are
sufficient to create a lease. Liv-
ingston V. Kisselbrock, 10 .Johns.
(N. Y.) 336. So it has been held
In England that a covenant "to
stand seized," where it is made
by the owner of land or a covenant
of quiet enjoyment (Pritchard v.
Dodd, 5 B. & Ad. 689), is a lease.
For it has been held in England
that a covenant of this character
accompanied by an entry on the
premises to which it relates is a
lease. As soon as a covenant is

made and accepted by the lessee
he has a right to enter, which on
his entry becomes a lease. Capley
V. Hepworth, 12 Mod. 1; Co. Lift.
37. So the words, "shall have and
enjoy," amount to a lease without
other words. Whitlock v. Horton,
Cro. Jac. 91.

21 Kabley v. "Worcester G. L. Co.,
102 Mass. 392, 395; Doe v. Ries, 8
Bing. 178. Where an owner of
land "agreed to rent or lease"
land to a gas company for the
storage of materials or to erect a
building on it, and at its request
cleared the land of timber, it is a
lease, though the gas company
never used or occupied the land
in any way. Kabley v. Worcester
G. L. Co., 102 Mass. 392, 395. See,
also, Duncklee v. Webber, 151
Mass. 408, 24 N. E. Rep. 1082;
Charlton v. Columbia R. E. Co.,
64 N. J. Eq. 631, 54 Atl. Rep. 444,
447.

2" Jackson v. Delacroix, 2 Wend.
(N. Y.) 433, 440.

-■i Bradley v. Metropolitan Music
Co., 89 Minn. 516, 95 N. W. Rep.

246 LAW OF LANDLORD AND TENANT.

clear, explicit or unequivocal words of present, demise, a pro-
vision for the execution of a lease in future will usually be
regarded as raising a presumption that the parties intended
the instrument as an agreement for a lease and not as a lea.se
itself.2* In all cases the fact that the tenant has gone inta
the possession of the demised premises as a tenant is of great
force and effect to show an intention that the contract should
be taken as a lease and not as an agreement. It will be diffi-
cult, if not im.possible, to find a case where words of present
demise followed by possession have not been construed as con-
stituting a lease. 2= The fact that the building, a portion of
which one ''agrees to lease," is at that time in process of con-
struction and also that the commencement of the lease is not
mentioned at all in the agreement to lease does not necessarily
prevent an instrument from being a present demise where such
is clearly the intent of the parties. Nor does it alter the situa-
tion of affairs under such a contract that the party who agrees
to lease had no title when he made the agreement to lease but
merely an agreement for a future formal lease to be executed
to him when the building should be completed. ^^

§ 177. Whether a writing is a lease or an agreement to make
a lease. It is often extremely difficult for the courts to distiri-
guish between a written lease and a writing which is merely an
agreement to make a lease. The distinction is always very im-

458, 459; Jackson v. Kisselbrack, ties to be defined, and it contains

10 Johns. (N. Y.) 336, 337, 6 Am. apt words to operate as a present

Dec. 341. demise, it will be so construed.

24 Goodtitle v. Way, 1 T. R. 735; Otherwise it will be regarded as
Doe V. Clare, 2 T. R. 739; Doe v. an agreement only. Subsequent oc-
Ashbumer, 5 T. R. 163; Doe v. cupation, like other acts and con-
Smith, 6 East, 530. See, also, Har- duct of the parties to a contract
rison v. Parmer, 76 Ala. 157, 161; in relation to its subject matter,
People ex rel. Norton v. Gillis, 24 may aid, upon the question of in-
Wend. (N. Y.) 201; People v. St. tention, in the interpretation of
Nicholas Bank, 3 App. Div. 544, 38 their agreement, but they cannot
N. Y. Supp. 379. control it against the meaning of

23 Jackson v. Delacroix, 2 Wend. the words used nor supply a mean-
(N. Y.) 433, 440. "If the instru- ing which the words will not rea-
ment, upon its face, puri)orts to sonably bear." McGrath v. Bos-
be the contract upon which the ton, 103 Mass. 369, 372.
occupation la to be enjoyed, and 20 Western Boot & Shoe Co. v.
the relations and rights of the par- Gannon, 50 Mo. App. 642.

WHAT CONTRACTS ARE LEASES. 217

portant since the consequences of the breach of a lease are very-
different from the consequences of the breach of an agreement
to make a lease.-' The distinction is important for it may hap-
pen that a writing which one party supposed to be merely an
agreement to make a lease may turn out to be a lease passing an
estate in the land by reason of which the other party will escape
the obligation of covenants which would have been inserted had
both parties to the instrument understood the instrument to have
been a lease and not an agreement for one. The distinction is
also clearly manifest where we consider that by a lease the lessee
acquires an actual interest in the land called an interesse termini
which upon entry vests a possession in him which he may regain
if ousted, by ejectment. Under an agreement for a lease all he
has is a cause of action for any damages that he may suffer in
the event of the landlord 's failure to execute the lease,-'^ or he
may file a bill in equity for a specific performance of the agree-
ment to give a lease.^*^ "Whether an instrument is to be construed
as a lease, or as an agreement for one, depends upon the in-
tention of the parties to be collected from the instrument it-
self, the entry on the subject matter with reference to extrin-
sic circumstances or the subsequent acts of the parties.^^ If
^e instrument apparently purports to create a right to de-
mand a lease to be executed at some time in the future, it will
be presumptively a contract to make a lease and not a lease
itself. As is elsewhere pointed out, everything depends upon
the intention of the parties which must be gathered from
their language as contained in the writing, and construed in
the light of the facts and circumstances of the case. If the
instrument, while speaking of an intention to lease, leaves
something material incomplete and to be arranged in the future
as where it leaves the length of the term to be subsequently de-
termined, or fails to fix the precise amount of rent payable, it
may be regarded merely as an agreement for a lease. An agree-
ment by which a land owner agrees by parol that he ivill lease

27 Donovan v. P. Schoenhofen 29 Western Boot & Shoe Co. v.
Brewing Co., 92 Mo. App. 341. Gammon, 50 Mo. App. 642; Doe d.

28 Price V. Williams, 1 Mee. & Morgan v. Powell, 8 Scott (N. R.)
Wei. 6. 6S7, 7 Man. & G. 9S0, 14 L. J. C. P.

z8a Harrison v. Palmer, 76 Ala. 5. 8 Jur. 1123; S. P. Morgan d.
157, 161- Doweling v. Bissell, 3 Taunt. 65.

248 LAW OF LANDLORD AND TENANT.

another liis Lnncl for a terra at a reasonable rent which is to ho
subsequently agreed on by the parties: and to be payable in
promissory notes to be subsequently executed and delivered, is
not a lease but merely an executory agreement to make one.^"
So, in a case where an agent has authority "to close a lease" on
the part of the lessee and he submits an offer to the prospective
lessor who states that he will accept it and directs the agent to
prepare a lease and the agent at once informs the party he repre-
sents of the acceptance and forthwith prepares a lease which is
never executed, the transaction is not a lease but merely an
agreement to make one.'^ So, an oral agreement suggesting
the terms of a lease which is subsequently to be committed to
writing and executed by the parties and containing nothing
which authorizes the lessee to enter into possession, is not a lease.
It is an agreement to make a lease which either party may re-
scind until it is executed unless the owner has permitted the les-
see to go into possession, in which event it creates a tenancy at
will. The lessee is not entitled to possession under such an
agreement as it is is not a lease, but has an action in damages
for a breach of it, consisting of a refusal to execute a lease.
Thus, where an "agreement" was made by an owner to lease
his premises and he subsequently thereto receipted for a sum
of money "on account of an agreement for a lease, for which
details are to be settled on" and a lease was thereafter drawn
which contained terms which were not contained in the writing,
there was no lease but merely an agreement to make a lease at
some future date.^^ An owner and another person may make

30 Gibson v. Needham, 9G Ga. been orally agreed on by the par-
172, 174, 22 S. E. Rep. 702. ties. Martin v. Davis, 96 Iowa,

31 Arnold v. R. Rothschild's 718, 65 N. W. Rep. 1001, where the
Sons Co., 164 N. Y. 562, 58 N. E. writing was as follows: "Agree-
Rep. 1085, affirming 37 App. Div. ment, this is to certify that I have
564, 56 N. Y. Supp. 161; Larous- rented my farm for the year 1895
sini V. Werlien, 52 La. Ann. 424, for the some of $300.00 payment
27 So. Rep. 89; Francke v. Hewitt, to be stated in contract to the said
56 App. Div. 497, 501, 68 N. Y. D. (Signed) L. M." and the court
Supp. 968, in this case the tenant refused to regard this as a lease
being in possession of the build- l)ut merely a memorandum for a
ing was told by the landlord to go future lease.

ahead and make repairs and he S2 Charlton v. Columbia Real Es-

would prepare a lease according to late Co., 64 N. J. Eq. 631, 54 Atl.
terms as to rent, etc., which had Rep. 444, in which the court says

WHAT CONTRACTS ARE LEASES.

249

an agreement to execute a lease at a future time upon the con-
dition of the occurrence of a some future event. They may-
agree that if a certain specified event shall happen the owner
and the other person shall make a lease and they may also
agree upon all the terms upon which the future lease shall
be made. If the event upon which the making of the lease is
conditioned shall happen, the owner is obligated to make the
lease and the promisee may recover damages for his failure to
do so. If the event shall not happen there is no duty upon
either party to enter into a lease. Thus an agreement by an
owner to make a lease to a railroad company provided the road
shall be completed within a year is an agreement upon condi-
tion, to be void if the road is unfinished, is not a lease and does
not create the relation of landlord and tenant between the par-
ties to it." .

that it is absurd to say the parties
have entered into an agreement
when the only evidence of such
agreement is a writing stating
that details are to be settled at
some future time, citing Ridgway
V. Wharton, 6 H. L. C. 305.

33 Proctor V. Benson, 149 Pa. St.
254, 258, 24 Atl. Rep. 279. A writ-
ing containing the language "I
hereby agree to give a lease" can-
not be construed as a lease where
the circumstances attending its ex-
ecution show that the parties to
it meant that a formal lease in
writing was to be executed before
possession was delivered to the
tenant. St. Louis Brewing Ass"n v.
Niederluecke (Mo. App. 1903), 76
S. W. Rep. 645. "The general rule
is stated to be that no precise
words or technical form of lan-
guage are required to constitute a
present demise, and that if there
are words showing a present in-
tention that one is to give, and
the other to have possession for
a determinate term a tenancy is
created; and that where there are

words of present demise the in-
strument should operate as a lease,
and not as an agreement for a
lease." By the court in Colclough
V. Carpeles, 89 Wis. 239, 244. In
pleading a lease at common law it
is a rule to plead a lease accord-
ing to its legal effect. If this is
done and the plaintiff proves only
an agreement for a lease it is a
material variance. Price v. Wil-
liams, 1 Mee. & Wei. 6, 13. In the
case of Francke v. Hewitt, 56 App.
Div. 497, the question of contracts
to make leases was very thor-
oughly discussed. This is an in-
teresting case and should be care-
fully read. The court held in sub-
stance that a tenancy might be
created where the negotiations
are in writing and a formal writ-
ten contract is stipulated for into
which the negotiations are to be
reduced. And if the minds of the
parties meet upon all the terms of
the future lease and these terms
are in all respects definitely un-
derstood and agreed upon the con-
tract is a complete lease though

250 LAW OP LANDLORD AND TENANT

§ 178. Question for court or jury. Whether a writing con-
stitutes a lease is a question for the court to determine as a mat-
ter of construction. . If an oral agreement is relied upon and the
facts are undisputed the court may determine whether it is a
lease without submitting the question to the jury.^* This rule
of practice is based upon the rule that the construction of a
writing is a question for the court. The court may determine
that a Avriting is a lease and at the same time it may require or
permit oral evidence of an entry by the tenant. If there is any
contradiction as to the entry and occupation by the tenant it is
not error to leave the question of the existence of the relation-
ship of landlord and tenant to the juiy upon all the facts.^^
Where there is a dispute as to the facts the question whether
the relationship of landlord and tenant exists is one of fact for
the jury to determine.^®

§ 179. The intention of the parties. The general rule that
the nature of an instrument depends upon its construction and
that this is always a question of the intention of the parties is
applicable to a lease. Whether an instrument is or is not a lease
always depends upon what the parties intended it to be. The in-
tention under general rules must be collected from the whole in-
strument regarded in the light of the surrounding circum-
stances.^^ The fact that the parties called it a lease is not always
controlling. The question whether an instrument is or is not a

the subsequent lease was never ex- 119 Pa. St. 637, 13 AtL Rep. 632;
ecuted. The court cited Wilbur v. McKenzie v. Sykes, 47 Mich. 294,
Collins, 4 App. Div. 418, in which 11 N. W. Rep. 164; Chamberlin v.
it was said if the minds of the par- Donohue, 44 Vt. 57.
ties did not meet as to all essen- 3- Johnson v. Phoenix M. L. I.
tial parts of the contract there Co., 46 Conn. 92; Potter v. Mercer,
was no lease. Of course, if a writ- 53 Cal. 667, 672; Bacon v. Bow-
ten contract was subsequently to dcin, 22 Pick. (Mass.) 401, 405;
bo drawn up and it was left until Gibson v. Needham, 96 Ga. 172, 22
then to agree upon some of its S. E. Rep. 702; Jackson v. Dela-
terms and conditions there was no croix, 2 Wend. (N. Y.) 433, 439;
lease. Griffin v. Knisely, 75 111. 411; Don-

s* Howard v. Carpenter, 22 Md. ovan v. P. Schoenhaefer Brewing

10. Co.. 92 Mo. App. 341; Salomon v.

asBaldwell v. Center, 30 Cal. Weisberg, 61 N. Y. Supp. 60;

539, 89 Am. Dec. 131. Thomson v. Payne, 5 Johns. (N.

?'«Doe V. Gray, 2 Houst. (Drl.) Y.) 74; Colclough v. Carpeles, 89

135; Jackson V. Vosburgh, 7 Johns. Wis. 239, 245; Shaw v. Farns-

(N. Y.) 186; Rothermel v. Dunn, Avorth, 108 Mass. 357.

WHAT CONTRACTS ARE LEASES. 251

lease is sometimes ver^'' important for frequently by statute the
landlord is entitled to remedies under a lease which parties to
other contracts cannot enforce. The intention for this reason is
particularly important foV if the parties did not intend the in-
strument to be a leasie then it follows that they did not intend that
the owner of the lease should have these remedies against the
other parties to the contract which the landlord generally pos-
sesses. As is elsewhere seen there are certain appropriate words
which are commonly used in leases. But the instrument is not a
lease though it contains the usual word ' ' demise, ' ' if its contents
show that the parties to it did not intend that it should be a le.ase.^*
For the court may do violence to the express language of any
writing rather than nullify the intention of the parties by con-
struing it so that the writing is a lease where the intention of the
parties was manifestly otherwise.^^ The question as to what is the
instrument, often arises in attempting to distinguish between a
lease and an agreement for a lease. The use of the words ' ' agrees
to let," or similar words in the writing is not alone conclusive
if the parties intended that the writing should be merely an
agreement for a lease.*" Such language may constitute an
actual hiring or leasing of real property if upon all the lan-
guage of the instrument it is apparent that the parties intended
to make a lease ; but an express provision in an instrument that
it shall not operate as a lease but only as an agreement for a
future lease is conclusive on the court to show the real intention
of the parties in spite of any inferences to the contrary that
may be gathered from other p;irts of the same writing.*^

§ 180. The assent of the parties to a lease. The general rules
and principles which regulate and govern the law of contracts
in relation to the necessity for the assent of the parties thereto
are always applicable to contracts to lease. There must be a
meeting of the minds of the parties; that is, there must be an
assent or agreement of the persons who claim or are claimed to
be landlord and tenant before there can be a lease. In other

38 Taylor v. Caldwell, 3 B. & S. ^o Weed v. Crocker, 13 Gray
826, 32 L. J. Q. B. 1G4, 8 L. T. (Mass.) 219, 224; John v. Jenkins,
356, 11 W. R. 726. 3 Tyr. 177; Browne v. Warner, 14

39 Jackson v. Delacroix, 24 Ves. 156.

Wend. (N. Y.) 433, 439; Hallett 4i Perring v. Brooke, 1 Mood. &

V. Wylie, 3 Johns. (N. Y.) 44. Ry. 510.

•2oi LAW OP LANDLORD AND TENANT.

words, as the law is laid down in the general law of contracts,
there must be an offer on the one side and an acceptance on the
other, and the lease is not made until the offer in all its details
is met by an acceptance which includes the whole of the offer/^
It is immaterial by whom the offer is made provided it be ac-
cepted nor must the offer be couched in express language for an
offer may be made by conduct as well as by language. On the
other hand, the acceptance of the offer may be by conduct, as
for example by the tenant to whom premises have been offered,
entering into the possession of the same. The offer must be ab-
solutely accepted in order to make a lease and the terms pro-
posed by the parties making the oft'er must be assented to in
their entirety. A counter-oft'er rejecting a portion and accept-
ing a portion of the original offer is pennitted, but until this
counter-offer is in its turn accepted, no lease exists. Thus, where
the landlord offers the premises to be leased at a rental specified
by him, an offer by the proposed tenant at a lower rental is not
an acceptance. And if the so-called acceptance of an offer by
the landlord differs in the particulars from the offer made either
in the rent to be paid,*^ in the character of the premises, or in
their use; in the length of the term or in any other material
respect; or it attempts in any way to vary the offer, there is
no assent and consequently no lease. The person to whom the
proposal for a lease is made may either wholly accept or he
may wholly reject. Either of these he will be presumed to have
done for an answer to offered terms suggesting other terms dif-
fering from the offer is conclusively presumed to constitute a
rejection of the terais offered.^* Hence, where a lease in writing

•«2 Ver Steeg v. Becker, Moore Rep. 898, 899. See, also, Culton v.

Paint Co. (Mo.), 80 S. W. Rep. 346, Gilchrist, 92 Iowa, 718, 721, 61 N.

353; Wood v. Scarth, 2 Kay & J. W. 384, 385; Jackson v. Rode. 7

33, 1 Jur. (N. S.) 1107, 4 W. R. 31. Misc. Rep. 680, 682, 28 N. Y. Supp.

43 Scottish Mortg. Co. v. Taylor 147; Smith v. Caputo, 14 Misc.

(Tex. 1905), 74 S. W. Rep. 564. Rep. 9, 10, 35 N. Y. Supp. 127;

•It Hammond v. Winchester, 82 Gramm v. Sterling, 8 Wyo. 527,

Ala. 470, 470, 2 So. Rep. 892; Smith 535, 59 Pac. Rep. 156; Majors v,

V. InKraiii, 90 Ala. 529, 531. 8 So. Goodrich (Tex.), 54 S. W. Rep.

Rei). 144; Cochiane v. .Justice Min- 919; Lever v. KofHer, 70 Law J.

ing Co., 16 Colo. 415, 26 Pac. Rep. Ch. 395, (1901) 1 Ch. 543, 84 Law

780; Gifford v. King, 54 Iowa, 525, T. 584, 49 Weekly Rep. 506; Castro

529. 6 N. W. Rep. 735; Erickson v Gaffey, 96 Cal. 421, 31 Pac. Rep.

V. Wallace, 45 Kan. 430, 25 Pac. 363; Hill v. Coal Valley Min. Co.,

WHAT CONTRACTS ARE LEASES. 253

was by the lessor sent to the lessee for his signature, and the
latter, without the consent of the lessor, put in the lease a clause
giving him the privilege of sub-letting and binding the lessor to
keep in repair a portion of the premises, there is no acceptance
of the lessor's offer. The alterations and insertions are a mate-
rial variation from the offer. Unless they shall in turn be accepted
by the lessor they are the same as a rejection of the lessor's offer.*^
An offer to execi,ite a lease being without consideration is revoc-
able any time before its acceptance. If a time is specified for the
acceptance of the offer by the other party, the offer is presump-
tively open for acceptance during that period; and, if the per-
son who has made the offer desires to revoke it during that time
he must notify the other party of his intention to do so. The
offer to make a lease in such case is a continuing offer unless ex-
pressly revoked during- the time which is limited for its accept-
ance; it may be accepted or rejected by the person to whom it
is made at any time during the period named. Before the
offeree shall have acted upon it, the person making the offer
ma}^ revoke it, but after the former has accepted it by conduct
or words, it becomes a lease. Before the acceptance there is
neither any assent nor consideration upon which a valid and
binding lease could be predicated. The acceptance of the off'er
of a lease at the same instant supplies both assent and consid-
eration and creates a contract of lease whose terms are those
contained in the oft'er. The minds of the parties have met upon
terms satisfactory to both and the acceptance of the offer by
the party to whom it was made is a good and valid consideration
for the party who has made the offer."*^ The acceptance of the
offer to constitute a valid lease need not be couched in any par-
ticular language. So, where an offer is made to rent premises
and it is neither expressly rejected, nor declined, a subsequent
inquiry by the prospective lessee if he could move in to which
an affirmative answer is made will constitute a lease.*^ So, the
acceptance of an oft'er of a lease made by the owner may be im-

103 111. App. 41; Smith v. Colby, 46 Pettibone v. Moore, 73 Hun,

136 Mass. 532; Highland Co. v. 461, 464, 465, 27 N. Y. Supp. 455

Rhoads, 26 Ohio St. 411. (lease).

•*5Ver Steeg v. Becker, Moore '"Smith v. Ingram, 90 Ala. 529,

Paint Co. (Mo.) 80 S. W. Rep. 8 So. Rep. 144.
346, 353.

251

LAW OF LANDLORD AND TENANT.

plied from the conduct as well as from the language of the ten-
ant. Thus, where an owner in reply to an inquiry by a tenant
whose lease was soon to expire, informed the latter by mail that
he expected to be in their county in a short time but that if the
tenant did not see him or hear from him in the course of a few
days, he might rely on having the land on terms mentioned, the
action of the tenant in holding over and proceeding to break
the land and put in a crop shows an acceptance of the landlord's
terms."'

§ 181. The consideration for the lease. There must also ap-
pear some consideration, whether express or implied, in the
lease. It may appear in the written lease itself or it may be
proved by parol evidence. The general rules of law regulating
the subject of consideration, so far as they apply to the law of
contracts are applicable to leases and these rules as generally set
out in the text books and eases may be consulted. A lease with-
out any consideration is void.*'' A promise by each of the parties
to the lease to the other is the usual considcrntion in a lease. The

4s Springer v. Cooper, 11 111.
App. 267. There is no contract of
lease where the negotiations are
conducted entirely by letters
through the mail, and the pro-
posed tenant requests to lease the
land for five years while the pro-
posed landlord in reply states that
he can have it for three, but the
tenant does not accept this propo-
sition. An offer of one party as-
sented to by the other will con-
stitute a lease but the assent must
comprehend the whole of the prop-
osition. The assent must be ex-
actly equal in its extent and terms
and must not qualify the accept-
ance with new matter. Hence, an
accei)tance of the offer on terms
varying for it is certainly a re-
jection. Errickson v. Wallace, 45
Kan. 430-433. 25 Pac. Rep. 89.8. A
lease is not made where a tenant,
being in possession, another party
applies by telegram to rent the
house for a month and the land-

lord refusing to rent for a month
says he may have it for a year.
Gifford V. King, 54 Iowa, 525, 530,
6 N. W. Rep. 735. A letter which
accepted the terms offered by the
landlord but also stated that the
tenant would like to build a cook
room wfEh a privilege to remove
it constitutes a lease and the
question in regard to the cook
room is not a variance of the
offer. Culton v. Gilchrist, 92 Iowa,
718-721, 61 N. W. Rep. 384. It is
not essential that the offer of lease
should be accepted in writing.
Moving into the premises after
having asked by telephone whether
it would be satisfactory without
proposing or suggesting any
change of the terms is an accept-
ance of the landlord's offer and is
a sufficient lease. Smith v. In-
gram, 90 Ala. 529, 531, 2 So. Rep.
892.

■•o Rrown v. Roberts, 21 La. Ann.
508. 510.

WHAT CONTRACTS ARE LEASES. 2oO

•consideration passing from the tenant to the landlord is the
promise of the tenant to pay rent to the landlord or to some third
person at his request. On the part of the landlord the considera-
tion is his demise of the premises for a stipulated term and his
promise to give possession. This is a good consideration on the
part of the landlord though it is not under seal.^° So an express
reservation of rent by the landlord, or a promise to pay him
rent though it is not under the seal of the tenant, is also a good
consideration for the covenants of the landlord, but such a prom-
ise is not indispensable in a lease as it may always be implied.'^'-
Other considerations by the tenant are equally valid. The tenant
may promise to pay rent in goods or produce or he may promise
to render the landlord personal services for the rent, or he may
promise to board and maintain him. Any of these promises are
good as a consideration. A new lease entered into by the parties
to take the place of the old one must be upon a new consideration
which differs from the consideration in the old lease. An agree-
ment by a tenant who holds under a lease by which the rent is
payable monthly that he will thereafter pay rent semi-monthly
is a sufficient consideration on his part for a new lease at a lower
rental. The new lease having been fully executed by the tenant
continuing in possession and the rent paid by him in accordance
with its terms while he is in possession a landlord cannot there-
after claim that it is void because without consideration. ^-

§ 182. Some circumstances which tend to show an instru-
ment is a lease. Various circumstances in connection with the
execution of an instrument in writing concerning which the in-
quiry is whether it is a lease or merely an agreement to make
one, have been seized upon by the courts to enable them to deter-
mine the true character of the writing. So, also, the court will
always take into consideration the mode in which the parties are
to carry out or perform the writing. The intention and sub-
stance of the writing will be considered rather than its forni.^-^

•■0 Hill V. Woodman, 14 Me. 38, and even though it contain a stip-

43. ulation that a formal lease in

51 Chadbourn' v. Rahilly, 34 writing shall be subsequently exe-

Minn. 346, 2.5 N. W. Rep. 643. cuted. the question has frequently

02 Goldsborough V. Gable, 36 111. arisen whether the written agree-

App. 363, 369. ment operates as a lease in pres-

52a "When an agreement for a enti, or only as an agreement for

lease has been reduced to writing, a lease in futuro. In such cases

256

LAW OP LANDLORD AND TENANT.

The circnmstance that the tenant is let into possession under the
so-called agreement for a lease, is often the controlling fact to
show that the parties intended a present lease,^^ but the circum-
stances that the tenant is in actual possession, and so need not
be let into possession, is not controlling if upon all the facts,
the parties meant the agreement to be a lease." The circum-
stance that a tenant entered on premises under what appears to
be an agreement for a lease and expends a large amount of
money in making improvements with the knowledge of the land-
lord, may indicate an intention that the instrument shall be taken
as a lease. It is presumed that the tenant would not have spent
the money unless he believed that the possession was secured to
him by a lease.^^ An instrument containing words of present

the rule, as established by numer-
ous decisions is, First, that effect
will be given to the instrument
according to the intention of the
parties, to be ascertained from all
the terms of the instrument itself,
considered in the light of the sur-
rounding circumstances. Second,
that if the instrument contain
Avords of a present demise, it will
be deemed a lease in presenti. un-
less it appear from other portions
of the instrument that such was
not the intention of the parties.
Third, that if possession be given
under the agreement this will be
a circumstance tending to prove
that it was intended as a lease in
presenti." By the court in Potter
V. Mercer, 53 Cal. 667, 673.

53 Hanerton v. Stead, 3 B. & C.
478; Chapman v. Bluck, 4 Bing.
(N. C.) 187, 5 Scott, 513, 1 Am.
l->, 7 L. .T. C. P. 100, 2 Jur. 206.

51 Doe d. Phillips v. Benjamin,
9 A. & E. 644, 1 P. & D. 440, 8 L. J.
Q. B. 117.

!■'!■> Poole V. Bentley, 12 Ea.st, 168,
2 Camp. 286. The entry into pos-
session by a tenant under an
agreement for a lease was held to
constitute a lease although the

agreement was to execute a lease
in the future. Poole v. Bentley, 12
East, 168, in which case Lord El-
lenborough said in substance that
while the intention was to con-
trol, the fact that the tenant was
to expend much capital upon the
premises during the first four
years of the term shows that he
was to have a present legal inter-
est in the term which was to be
binding on both parties although
after progress was made in build-
ing a more formal lease in which
the premises might be more par-
ticularly described would be exe-
cuted. This case was cited in
Chapman v. Bluck, 4 Bing. (N. C.)
187, 195, where the court said
that while it was difficult to recon-
cile all the cases on the question
whether certain Instruments shall
be taken to operate as agreements
for leases or as actual demises,
the fact that the tenant entered
possession after a correspondence
between the parties constituted
him a lessee and the landlord was
authorized to distrain for rent.
For other cases in which an agree-
ment contained words of present
(li'niise has been held to be a lease.

WHAT CONTRACTS ARE LEASES.

257

demise will be construed as a lease, if such is the intention of tlie
parties, though the instrument contains a clause for the prepara-
tion of a future lease.^® An agreement for a lease containing a
stipulation which provides for an execution of a formal lease,
and that in the meantime until such lease shall be executed, the
tenant is to pay rent and to hold the premises subject to the
covenants which are to be inserted in the lease when it is exe-
cuted, is a lease and not merely an agreement to make one.'^^

§ 183. No presumption of tenancy from possession alone.
The mere fact that one man is in possession of land owned by
another though a circumstance to be considered in determining
whether the relation of landlord and tenant exists between them,

though it contained a stipulation
for the execution of a lease in the
future, see Pearce v. Cheslyn, 5
N. & M. 652, 4 A. & E. 225, 1 H.
& W. 768, 5 L. J. K. B. 113; Doe d.
Pearson v. Ries, 8 Bing. 178, 1 M.
& Scott, 259, 1 L. J. C. P. 73; Chap-
man V. Bluck, 4 Bing. (N. C.) 187,

5 Scott, 513, 1 Arn. 15, 7 L. J. C. P.
100, 2 Jur. 206; Doe d. Phillips v.
Benjamin, 9 A. & E. 644, 1 P. &
D. 440, 2 W. W. & H. 96, 8 L. J.
Q. B. 117; Curling v. Mills, 7 Scott
(N. R.) 709, 6 Man. & G. 173, 12 L.
J. C. P. 316; Tarte v. Darby, 15 M.

6 W. 601, 15 L. J. Ex. 326; Wilson
V. Chisholm, 4 Car. & P. 474.

50 Poole V. Bentley, 12 East, 168,

2 Camp. 286; Warman v. Faithful,

3 N. & M. 137, 5 B. & Ad. 10l2, 3
L. J. K. B. 114; Doe d. Jackson
V. Ashburner, 5 Term Rep. 163.

57 Pinero v. Judson, 6 Bing. 206,
3 M. & P. 497, 8 L. J. (O. S.) C. P.
19, 31 R. R. 388; Hancock v. Caf-
fyn, 1 M. & Scott, 521, 8 Bing. 358,
1 L. J. C. P. 104; Doe d. Walker
V. Groves, 15 East, 244. "There
may be many things about which
the parties may enter in such a
case into a written agreement,

17

without its being a demise, tak-
ing it for granted that a demise
already exists, or will exist. For
example, the one party may agree
to lay out money on the premises
in consideration that the other
will agree that he shall thereafter
become tenant. This paper clearly
refers to some parol agreement be-
tween the parties, containing some
other stipulation. Where the par-
ties signed an agreement contain-
ing all the particulars of a demise,
it may no doubt be considered
as imparting a present interest,
though it contains words of agree-
ment on the part of one of them
only. But that is where it con-
tains all the terms of the demise,
v.-hich is not the case here. There
is no statement of the commence-
ment or duration of the tenancy,
no stipulation that the party shall
occupy for a year or a longer pe-
riod, and nothing more than a
legal inference that if he occu-
pies for a year he must pay rent
at the rate therein mentioned."
By Lord Abinger, C. B., in Gore v.
Lloyd. 13 L. J. Ex. 366, 12 Wm.
& W. 463.

258 LAW OF LANDLORD AND TENANT.

by no means raises any presumption of a tenancy existing in
tlie absence of proof of a letting and hiring express or implied.^^
If the occupant is in possession without the consent of the true
owner he is merely a trespasser from whom no rent can be col-
lected and against whom the only remedy is an action of eject-
ment or trespass as the circumstances of the case may indicate.
Even the fact that the occupant is in possession with the consent
of the owner does not, taken in connection with the possession,
conclusively show that the relationship of landlord and tenant
exists. It must also be shown that the occupant holds possession^
not only with the consent of the owner but under and in sub-
ordination to the title of the latter. In other words, the true
test of the relationship of landlord and tenant is to ascertain,
first whether the person claiming or who is claimed to be a ten-
ant holds possession with the assent of the owner, and second, if
such be the case, whether he holds in subordination to the title
of the owner.^^

§ 184. The length of the term in an agreement to make a
lease. The parties to an agreement to make a lease in futuro
must be particularly careful to see to it that the agi^eement either
expressly states the length of the term which is to be created by
the lease or that it states some fact or circumstance from which
the length of the term may be ascertained. The agreement must

c8 Bailey v. Campbell, 82 Ala. Supp. 657, 26 Misc. Rep. 843; Har-

342; Hardin v. Bailey, 79 Ala. ris v. Frink, 2 Lans. (N. Y.) 35.
381; Carger v. Fee, 140 111. 582, 39 sg Littleton v. Wynn, 31 Ga. 583;

N. E. Rep. 93; Cummings v. Turner v. Davis, 48 Conn. 397;

Smith, 114 111. App. 35; Pitts- Loring v. Taylor, 50 Mo. App. 81;

burgh, C. & St. L. v. Thornburgh, Chambers v. Ross, 25 N. J. Law,

98 Ind. 201; Hall v. .Jacobs, 7 Bush 293; Twiss v. Boehmer, 39 Oreg.

(Ky.) 505; Jordan v. Mead, 19 La. 359, 65 Pac. Rep. 18; Victory v.

Ann. 101; Paige v. Scott's Heirs, Stroud, 15 Tex. 573; Heddleston

12 La. 490; Fisk v. Moore, 11 Rob. v. Stoner, 128 Iowa, 525, 105 N.

(La.) 279; Curtis v. Treat, 21 Me. W. Rep. 56; Page v. McGlinch, 63

525; Leonard v. Kingman, 136 Me. 472, 476; Lockwood v. Thun-

Mass. 123; Edmonson v. Kite, 43 der Bay River Boom Co., 42 Mich.

Mo. 176; Williams v. Berier, 31 536; Hogsett v. Ellis, 17 Mich.

Mo. 13; Dixon v. Ahearn, 19 Nev. 351; Steen v. Scheel, 46 Neb. 252,

422, 24 Pac. Rep. 337; Crosby v. 64 N. W. Rep. 957; Skinner v.

Home & Danz Co., 45 Minn. 249, Skinner, 38 Neb. 756, 57 N. W.

47 N. W. Rep. 717; Stewart v. Rep. 534; Parley v. McKeegan, 48

Finch, 31 N. .L Law, 17; Alt v. Neb. 237, 67 N. W. Rep. 16L
Gray, 90 St. Rep. 657, 56 N. Y.

WHAT CONTRACTS ARE LEASES. 259

state both the length of the temi and the date of its commence-
ment, in order that it may be enforceable in equity. Generally
the fact that a memorandum for a lease does not contain the date
upon which the term is to commence, will prevent it from being
in compliance with the statute of frauds.^" Such an agreement
to make a lease cannot be specifically performed.®^ It has been
held sufficient in one case if the date can be supplied by parol
evidence. Though the agreement for a lease may not state the
date, it will be sufficient under the statute, and for specific per-
formance if it refers to a circumstance from which the date naay
be implied.^- There is no inference that the term is to commence
from the date of the agreement where it is not so expressly pro-
vided. It is a presumption that parties who agree to make a
lease intend one to be prepared which shall be dated on a subse-
quent day and possession is usually not surrendered to the ten-
ant until such a lease is executed by both parties. There is no
presumption therefore that the date of the agreement to make a
lease is to be the date of the lease unless indeed the writing which
is called an agreement to make a lease, is a lease itself. Under
such circumstances, the contract for a lease being deficient in
certainty, will not be specifically enforced.®^ An agreement
which provides that a tenant is to bje given possession within one
month from its date sufficiently states the commencement of the
term, and the lease is to commence when possession is given.
Such a contract is sufficiently definite to warrant specific per-
formance.*** But an agreement containing proposed terms for
a future lease with an acceptance by the lessee on condition the
premises are in repair, is not a lease because the time is not fixed

60 Clarke v. Fuller, 16 C. B. (N. fis Marshall v. Berridge, 51 L. J.
S.) 24, 12 W. R. 671; Marshall v. Ch. 329, 19 Ch. D. 233, 45 L. T.
Berridge, 51 L. J. Ch. 329, 19 Ch. 599, 30 W. R. 93, 46 J. B. 279;
D. 233, 45 L. T. 599, 30 W. R. 93, Wyse v. Russell, 11 L. R. Jr. 113;
46 J. P. 279; Oxford Corporation Dolling v. Evans, 15 W. R. 394.
V. Crow, 3 Ch. 535, 8 R. 279, 69 L. Compare Jacques v. Millar, 47 L.
T. 228, 42 W. T. 200; Jaques v. J. Ch. 544, 6 Ch. D. 153, 37 L. T.
Millar, 6 Ch. D. 153, overruled. 151, 25 W. R. 846, which was over-
See, also. May v. Thomson, 20 Ch. ruled.

D. 705. G4 Marshall v. Berridge, 19 Ch.

61 Blore V. Sulton, 3 Mer. 237, 17 D. '233, discussed and applied;
R. R. 74. Lauder and Bagley's Contract, In

62Phelan v. Tedcastle, 15 L. R. re, 61 L. J, Ch. 707, 3 Ch. 41, 67
Ir. 169. L. T. 521.

2G0 LAW OF LANDLOKO AND TENANT.

■when the tenancy is to commence. So, too, the fact that though
signed by the parties, the terms are only to go into effect upon
the performance by the landlord of certain things which might
or might not be done by him, prevents the instrument from be-
coming or being regarded as a present lease.*^^

§ 185, The term as stated in the lease. The term for which
the premises may be occupied must be certain and fixed by the
lease itself or there must be method indicated by the instrument
by which the length of the term may be determined. The writ-
ing must fix its commencement, and duration, or describe some
certain event upon the happening of which it is to commence.^®
Unquestionably a lease may be signed, the term of which may
be made to begin on the occurrence of some event in the future.*^^
Thus a lease is not invalid because of the uncertainty of the
term created therein where the day on which the term is to
end is specified and the rental is to begin to be paid when a
building not in existence but which the landlord agrees to erect
on the property within a certain date is ready for occupancy.^*
So, also, a written lease of a room in a building in process of
erection for five years from the completion of the building is a
valid lease for a term to begin in futuro. The certainty of the
term is fixed by the completion of the building and the occu-
pancy of the room and payment of rent by the lessee. The ab-
sence of an express agreement by the lessor to complete the
building does not render the term uncertain for such an agree-
ment will be implied under the circumstances. The completion
of the building is a condition precedent to the beginning of the
term though the fact that in some respects the work was un-
satisfactory to the lessee is not material on his liability whe/re he
entered, occupied and paid rent."* So, not only must the begin-
ning of the term be ascertained or be ascertainable by the lease
but the end must not be uncertain. Thus, in a lease for a year
which gave the lessee ''a privilege of longer," the latter phrase

6'- Doe fl. Wood V. Clarke, 7 Q. v. Ganster, 72 Pa. St. 285; Trull

B. 211, 14 L. J. Q. B. 233, 9 Jur. v. Granger, 8 N. Y. 115, 118; Blear
426. V. Flues, 64 N. Y. 518, 520.

00 Colclough V. Carpeles, 89 Wis. es Colclough v. Carpeles, 89 Wis.

239, 245, 24C, 61 N. W. Rep. 836. 239, 61 N. W. Rep. 836.

07 See Wilcox v. Bostick, 57 S. «» Hammond v. Barton, 93 Wis.

C. 151, 35 S. P:. Rep. 496; Bussman 183, 67 N. W. Rep. 412.

WHAT CONTBACTS ARE LEASES. 2G1

was held to be so indefinite as to time that the tenant could not
remain in possession longer than a year.'"

§ 186. Entry into possession as indicating a lease. In de-
tennining whether a writing is a lease or merely an agreement
for one, the entry into possession of the lessee with the consent
of the lessor is a circumstance which tends to throw some light
on the intention of the parties. The same principle is true where
it is necessary to ascertain the intention of the parties to an oral
agreement. But entry and possession are never relevant unless
the intention is ambiguous or doubtful, for if it be clear from
the language emploj^ed that the agreement was to make a lease
in futuro, and net a lease in presenti, the delivery of possession
is absolutely immaterial. In other words, proof of delivery of
possession is not received to alter, vary or modify the intention
as shown by the language of the parties, whether oral or written,
but solely to show what the intention is.'^^ The entry of a per-
son in the capacity of a tenant on premises, who has by parol
agreed with the owner to execute a written lease is a tenancy at
wUl. Where the lease was to be for a year, an entry under an
agreement will be a lease for one year though the yearly lease
was never executed.'-

70 Howard v. Tomicich, 81 Miss. 125, 7 Pac. Rep. 444; Jenkins v.

703, 33 So. Rep. 493. A mistake Eldridge, 13 Fed. Cases, 7268, 3

as to the termination of the term Story, 325; Goldberg v. Wood, 90

of a lease, caused by writing the N. Y. Supp. 427, 428, 45 Misc. Rep.

figure "8" instead of the word 327.

"eighty" before the word "eight" ~- Bonaparte v. Thayer, 95 Md.

in the date 1888 will not defeat a 548, 52 Atl. Rep. 496. The action

recovery on the lease. Nyquist v. of the landlord in permitting one

Martin, 35 111. App. 623. An agree- who expects to be his tenant to

ment to make a lease "for one or go on the premises to repair while

more years" is sufficiently certain negotiations are under way for the

as to the length of the term to en- execution of a long lease does not

able the tenant to procure its establish an oral lease for a short

specific performance, as it has term. It is very evident that this

been construed that the term "one was done simply for the accommo-

or more years" means at least two dation of the prospective tenant,

years and perhaps more in the op- Herbert v. Gallatin, 163 N. Y. 575,

tion of the tenant. Boston Cloth- 57 N. E. Rep. 1112, affirming 22

Ing Co. V. Solberg (Wash. 1902), App. Div. 623, 47 N. Y. Supp. 778,

68 Pac. Rep. 715. 779. A finding that there had been

Ti Potter V. Mercer, 53 Cal. 667, a contract to lease the premises

672; Cheney v. Newberry, 67 Cal. for one year is not justified where

262 LAW OF LANDLORD AND TENANT.

§ 187. The presumption of an existing tenancy from the pay-
ment of money by the occupant to the owner. The circum-
stance that a person in the actual possession and occupation of
land pays money to the owner is relevant to show the relations
of the parties and, while taken alone it may have no significance^
yet in connection with other circumstances it may raise a con-
clusive presumption that the relationship of landlord and tenant
existed between the payor and the payee. If upon all the cir-
cumstances, it is apparent that the owner received or claimed to
receive the payments as a lessor of the premises and that the oc-
cupant either assented thereto by words or conduct, or remained
silent in reference to the character in which the lessor received
the money, then it will be conclusively presumed that the rela-
tion of landlord and tenant existed between the parties. The
presumption of the existence of the relation of landlord and ten-
ant arises from the payment of money as rent and if it is proved
that the money was paid as rent then it is conclusively presumed
that the relationship out of which the payment of rent alone
grows, exists."^ This presumption has been applied in the case of
a tenant holding over. In fact this is a very' frequent application
for the whole doctrine of tenancy by holding over is based upon
the payment of rent. The payment of rent creates a presump-
tion of a tenancy, the term of which depends upon the time in-
tervening between the rental payments. Usually the presump-

the defendant after receiving a Fernandez, 1 Rob. (La.) 260; En-
proposition from the plaintiff as rich v. Stock Yard Co., 86 Md.
to leasing a coal yard for a year, 482, 38 Atl. Rep. 843; Squire v.
occupied the premises for a short Ferd. Heim Brewing Co., 90 Mo.
time without signing a written App. 462; Hill v. Boutell, 3 N. H.
lease or coming to any definite 502 (a promise to pay rent);
agreement. Gramm v. Sterling, 8 Decker v. Hartshorne, 65 N. J.
Wyo. 527, 59 Pac. Rep. 156. Law, 87, 89, 48 Atl. Rep. 1117;
73 Kelly V. Eyster, 102 Ala. 325, Simmons v. Pope, 84 N. Y. Supp.
14 So. Rep. 657; Rainey v. Capps, 973, 974; Weinhaner v. Eastern
22 Ala. 288; Barrett v. Jefferson, Brewing Co., 85 N. Y. Supp. 354;
5 Houst. (Del.) 567; Flagg v. Gelt- Van Rensselaer v. Secor, 32 Barb,
macher, 98 111. 293; Voight v. (N. Y.) 469, 473; Weaver v. South-
Resor, 80 111. 331, 332; Cressler v. ern Oregon Co., 31 Oreg. 14, 48
Williams, 80 Ind. 366, 368; Duffy Pac. Rep. 167; Virginia Mining
V. Carman, 3 Ind. App. 207, 210, and Improvement Co. v. Hoover,
29 N. E. Rep. 454; Andrews v. Er- 82 Va. 449, 4 S. E. Rep. 680;
win, 25 Ky. Law Rep. 1791, 78 S. Rraythwayte v. Hitchcock, 10 Mee.
W. Rep. 902, 903; Brandagee v. & Wei. 494.

WHAT CONTRACTS ARE LEASES. 263

tion is invoked in favor of the landlord against the tenant but
it is of equal service in favor of the tenant, that is, though a
term is created solely by payment of rent, the tenant is still en-
titled to notice to quit, and cannot be ousted except by the proper
statutorj^ proceedings. The fact, also, that one who himself pays
rent to the owner of the premises receives money for the use of
the premises from other persons who occupy them and gives re-
ceipts in his own name to such persons may also be considered
to show he is a tenant. This presumption is rebuttable only by
showing that the money paid was not paid as rent but with some
other intention in the minds of both payor and payee.''*

§ 188. The necessity for the payment of rent. While, on the
one hand, the existence of the relation of landlord and tenant
may generally be implied from an agreement to pay rent for
land ; on the other hand, it is by no means an absolute rule that
there must always be an express promise or a contract to pay
and to receive rent in order to create the relationship of landlord
and tenant. Indeed, there may be a tenancy where it is abso-
lutely proved that there was no express agreement to pay rent
and where the only basis for the claim for rent on the part of the
landlord is the implied promise of the tenant to pay for the use
and occupation of the land. Thus, a tenant holding over by con-
sent or at the sufferance of the landlord is still a tenant ; and the
person of whom such possession is held continues to be the land-
lord, though it is understood between the parties that the per-
son holding over is to pay no rent. The landlord may pursue
all his ordinary remedies against the person holding over as his
tenant and he need not show that that person has agreed to pay
rent.'^^ So, while mere possession alone given without any ex-
press agreement to pay rent, may not under some circumstances
create the relationship of landlord and tenant, still if from the
language of the agreement it is clear that the parties intended by

74 The owner of the equitable gain time in which the equitable

title of the premises by once pay- owner might bring a suit to estab-

ing rent to the holder of the legal lish her equitable title. Hudson v.

title does not thereby necessarily White, 17 R. I. 519, 23 Atl. Rep.

recognize him as her landlord, 57, 63.

where from the evidence it is "5 McKissack v. Bullington, 37

clearly apparent such payment Miss. 535, 538; Hunt v. Comstock,

was made simply to prevent being 15 Wend. (N. Y.) 665, 666.
evicted from the premises, and to

264 LAW OF LANDLORD AND TENANT.

the occupation to stand in the relationship of landlord and ten-
ant to each other, the fact that the occupant by an express agree-
ment is to occupy the land rent free will not alone be sufficient to
destroy the tenancy.^® The owner of land may, as against the
occupant who holds without his consent, create a tenancy by
notifying the occupant that if he continue to occupy the land he
will have to pay rent. Thus, one who continues to occupy prem-
ises after he has been notified that he will be required to pay rent
if he remains in possession becomes liable as a tenant for the
rent though he may not have paid rent before the notification.
The notification of the landlord and the action of the occupant
create a lease the terms of which as to its duration and rental
periods will depend upon the agreement of; the parties to be in-
ferred from the language of the notification,, and the action of
the tenant. This rule applies to occupants who are trespassers
or tenants at will or sufferance but not to those who occupy
premises under a claim which is adverse and hostile to the
owner. '^^

§ 189. The performance of a contract to execute and deliver
a lease. A formal lease properly executed and tendered by the
lessor in the performance of his contract to execute a lease must
in its terms and its covenants substantially conform to the in-
tention of the parties as expressed in the agreement to make a
lease. The lease ought to include all the premises which are
mentioned in the agreement and the term and the rental pay-
ment must be the same in both writings or tlie lessee may reject
the lease which he must do within a reasonable time after its
tender. If from the evidence it appears either that the lessee
entered into possession or paid rent under the lease which was
delivered him by the lessor, he will be presumed to have waived
the objection that the lease did not cpnform to the agreement
Proof that the lessee was unwilling t(F accept a lease from the
lessor in any form is a waiver of a tender of a proper lease by the
lessor.''* The lessee usually need not demand the delivery of a

v6 Mitchell v. Commonwealth, 37 257, 261, 28 N. E. Rep. 226, 26 Am.

Pa. St. 387, 192. St. Rep. 244, 12 L. R. A. 561, hold-

77 Biglow V. Biglow, 77 N. Y. ing also that the sending of a let-
Supp. 716; Hill v. Coal Valley ter In regard to the contract to
Min. Co., lO:} 111. App. 46. the lessees by the lessor and sub-

78 Freeland v. Ritz, 154 Mass. sequently sending the lease to

WHAT CONTRACTS AEB LEASES. 265

proper lease as a condition precedent to bringing his action
though it may be safer for him to do so.'^® On the other hand, a
lessor cannot sue on an agreement to take a lease "at a fair
rent" until he has tendered to the lessee a lease on such, terms
unless the lessee by words or action has waived the tender.*"

§ 190. The specific performance of an agreement to make a
lease. An agreement in writing to make a lease which com-
plies with the requirements of the statute of frauds will be
specifically enforced in a court of equity at the suit of either
party to it.*'^ The general requirements which are applicable to a
suit for the specific performance of a contract in ordinary cases
must be complied with. The agreement must contract words
from which the court may ascertain the term and the date of its
commencement. The premises must be described with a reason-
able degree of certainty so that their location may be ascer-
tained by the lessee. There must also be a valid consideration
and the agreement, the enforcement of which is desired, must be
signed by the party who is to be compelled to execute it.*^ Where
a memorandum of an agreement for a lease was signed by the
lessee, but not by the lessor, and the name of the latter did not
appear in it^ a subsequent letter signed by the lessor and refer-
ring to the memorandum will take the case out of the statute.**
An agreement hy the lessor to make improvements made at the
date of making an agreement for a lease or upon the renewal of
a lease is not within the statute of frauds. An agreement by a
landlord with a tenant who has land for a term of years, that
he will, for a good consideration stated as part of the increased
rent, make certain improvements on the land, is valid though not
signed by the parties. It is not a contract for any interest in or
concerning lands within the statute of frauds.** A landlord or
a tenant who seeks the specific performance of an agreement to

them for their signature shows 82 Grand Trunk "W. Ry. Co. v.

that the lessors substantially per- Chicago & E. I. R. Co. (C. C. A.),

formed the contract to execute the 141 Fed. Rep. 785.

lease. '^ Warner v. Willington, 3

79 Manning v. "West, 6 Cush. Drew, 523, 25 L. J. Ch. 662, 2 Jur.
(Mass.) 463. (N. S.) 433, 4 W. R. 531.

80 Weaver v. Wood, 9 Pa. St. «4Donellan v. Read, 3 B. & Ad.
220. 89^.

81 Lenderking r. Rosenthal, 63
Md. 28, 33.

266 LAW OP LANDLORD AND TENANT.

make a lease must show that he has performed all conditions
precedent on his part.^^ A landlord who has agreed to put the
property in good repair before the tenant shall execute the lease
must satisfy the court that he has done so. A slight variance be-
tween the quantity or character of the land as described in the
agreement and that set out in the lease may be disregarded. A
court of equity will decree the specific performance of a
contract for a lease of land where the only defense is that the
quantity of land described in the lease is slightly less than that
contracted for if the court is satisfied that the defendant would
thus receive substantially that which he agreed to lease,^® Where
the tenant makes an offer to rent a farm at a specified sum per
annum, and the landlord accepts the otfer and it subsequently
appears that the landlord will be unable to deliver possession of
the number of acres which the tenant expects to receive, a decree
of specific performance will be granted on the suit of the tenant
with appropriate abatement of the rent for the actual number of
acres delivered. A parol agreement to accept a lease will be
specifically enforced in equity where the tenant has entered in
pursuance of the parol agreement. The execution of a lease by
a lessee will be compelled in equity, where he had agreed to exe-
cute one, and the lessor, relying on his promise, broke off ne-
gotiations for renting the premises to others, and made material
alterations, in order to adapt the premises to the lessee's use. The
lessee is estopped under such circumstances, where he had entered
into and held possession for nearly half the term, paying the
rent agreed upon, but refusing to execute a lease. He cannot
abandon the premises and escape liability for the rent upon the
plea that no lease had been executed by him.'^^ And as a general
rule, where no lease was executed and acknowledged as required
by statute, but only a contract for one, still if possession is given
under such contract and thereby improvements made by the les-
see upon the faith of it, equity will consider the situation of the
parties to be the same as if the leaseihad been executed and so long
as possession is retained the rights of the landlord and tenant are

«!■. Counter v. Maciilicrson, 5 87 McKenzie v. Hesketh, 47 L. J.

Moore, P. C. 83. Ch. 231, 7 Ch. D. 675, 38 L. T. 171,

80 Bowler v. Electric Light Co., 26 W. R. 189.
10 Dec. Rep. 582, 22 Bull. 130. ss Seaniiui v. Ascheniiaim, 51

AVis. 078.

WHAT CONTRACTS ARE LEASES. 267

to be governed by the terms of the proposed lease. ^^ If it ap-
pears on a trial of an action for the specific performance of a
contract to make a lease, that the execution of the lease if di-
rected by the court will not benefit the tenant, the court may in
its discretion award him damages. This is illustrated where a
suit for performance is begun when the terai of the proposed
lease is nearly expired. Under such circumstances, or where
for any other reason the lease would have but a short time to run,
the court will not decree a specific performance.®"

§ 191. The measure of damages for a breach of an agreement
to make, a lease. A mere agreement for a lease as it creates no
interest in the land, gives the tenant no remedy against a third
person who wrongfully holds possession, but the landlord is liable
in damages for the period the tenant is kept out of possession.''^
In an action by a tenant against the landlord for damages for a
breach of an agreeanent to lease, the measure of damages, where
there is no fraud or bad faith on the part of the lessor, is the
amount paid, or expenses incurred by the lessee in relying on this
contract, and if there be no expense or money paid by him, he can
recover only nominal damages.®- Tlie measure of damages in an
action by the landlord against the tenant for damages caused by
the breach by the tenant of an agreement to take a lease is the
loss of rent while the premises remain unoccupied at the rate
proposed in the agreement; and the expense of any repairs or
improvements made by the landlord on the premises at the ten-
ant's request and which would not have been necessary to make
unless the landlord had expected the tenant to go into possession.
In the case of the broach of an agreement to make 'a lease, the
amount of the proposed rent is not the measure of damages where
the lease was void under the statute of frauds. The proposed
rent is not the measure of damage as under such circumstances
the landlord would not receive any rent under the lease, nor can
h.e recover damages for the loss of a bargain as he has lost noth-
ing by a failure to make the lease which, if made, he could not

«9 Pugh. Printing Co. v. Dexter, oo Cincinnati Southern Ry. Co.

8 Ohio Dec. 557, 5 N. P. 332; Pugh v. Hoolver, 26 Ohio Cir. Ct. R. 392.
Printing Co. v. Dexter, 61 Ohio St. 9i Becker v. De Forest, 1 Swee-

666; Hannan v. Towers, 3 H. & J. ney (N. Y.) 528.
(Md.) 147. 'J- Wolf V. Studebalier, 65 Pa. St.

459.

268 LAW OP LANDLORD AND TENANT.

enforce. He may perhaps recover damages, if, by the making
of the agreement for an invalid lease, he was prevented from
leasing the premises to some other person or was put to an ex-
pense induced by his agreement in altering them or putting
material or work upon them which was not necessary for their
improvement or repair.^^

§ 192. Letters constituting an agreement to make a lease. A
series of letters passing between the parties may constitute an
agreement to make a lease which may be sufficient under the stat-
ute of frauds. The letters which constitute the correspondence
will be construed together, and, if from all of them taken to-
gether it is apparent that the minds of the parties met in an
agreement to make a future lease and if the terms including
the length of the term and the date from which the term is to
commence, can be clearly ascertained from an inspection of the
letters the contract will be specifically enforced. Particularly
must the commencement and length of the term appear or be
ascertainable from a construction of the letters as a whole. It
is immaterial in what letter the commencement of the term is
stated. It need not be stated in the letter which contains the ac-
ceptance of the offer to make the lease. Wliile it is true that an
agreement to make a lease may consist of letters, and while it
is equally true that, though the commencement of the term may
not be contained in a letter of acceptance, it may be supplied
from a later letter yet if the later letter is in substance, a re-
jection of the offer or an acceptance of the offer upon conditions
which the party making the offer is not willing to grant, the fact
that his letter supplied the date for the commencement of the
term, is not material. For where letters are relied upon to con-
stitute a contract of leasing^ they must be accepted in their en-
tirety, and the party offering them is not at liberty to use as much
of them as may favor his case, and reject that which is unfavor-
able."* Letters passing between the parties in reference to the
assignment of a lease do not constitute a contract in writing
which will be enforced specifically where it is clear from an in-
spection of the letters that the parties meant to make and exe-
cute a formal contract at some future date.°°

03 Sausser v. Stoinmetz, 88 Pa. affirming 41 L. J. Ch. 551, L. R.

St 324, 327. 7 Ch. 406, 26 L. T. 568.

0* Nesham v. Selby, 41 L. J. Ch. ■■>■> May v. Thomson, 51 L. .J. Ch.

173, L. R. 13 Eq. 191, 26 L. T. 145, 917, 20 Ch. D. 705, 47 L. T. 295.

WHAT CX)NTRACTS ABE LEASES.

269

5 193. A lease distinguished from a license. A license may
be defined as an authority to do some act or a series of acts on
the land of another person without acquiring an interest or ^-
tate in the land itself. Whether a contract is a lease or a license
will be determined not from what the parties may chose to call
it nor from the language used but from the legal effect of its
provisions.^* Usually as a license is a permission to do some
personal act it is presumed to be founded upon the personal
confidence which the owner has in the person licensed. Hence,

"I think the decisions of our
courts have gone far enough as to
letters; that is, in the spelling out
of a contract from letters, when
both parties intended a formal
contract to be executed. I think
it very often happens that both
parties use expressions in letters
which, read alone, would amount
to a contract if we did not laiow
that in fact neither of the parties
intended those general expressions
to constitute a contract. In that
case if the court lays hold of the
language of the letters to make a
contract, it makes a contract for
the parties which the parties
never intended to enter into. If
for instance both parties intended
that a lease should be taken from
a day to be named, and the one
simply said that he would take a
lease, and the other said he would
grant a lease, without fixing a
day, you would be making a new
bargain for the parties. If you
turn the granting of a lease into
an assignment the same intention
may be present. It may be an as-
signment of a lease and the good-
will of a business. Both parties
may understand that they are to
have a day fixed for the payment
of the purchase price and the car-
rying out of the assignment and
that there is to be no final bar-
gain without it, yet, if they do

not state it, the court, it is said,
fixes upon the terms and makes
them a bargain for a reasonable
time to be fixed upon by a jury
who may be perhaps not very con-
versant with the matter. We must
always be on our guard against
that." May v. Thomson, 51 L. J.
Ch. 917, 20 Ch. D. 705, 47 L. T.
295. A lease for a term of years
is not created by a letter which
promises the party to whom it is
written a lease for "five years or
maybe longer" of the writer's farm
i? the addressee would move onto
it. Cunningham v. Rinsh, 157 Mo.
336, 57 S. W. Rep. 7G9. The own-
ers of a house and shop, in Sep-
tember, 1890, wrote a letter to the
person who was then in occupa-
tion, in the following terms: "We
hereby agree to let you keep peace-
able possession of your present
house and shop in Strand Lane
for a term of 10 years, on condi-
tion that you commit no nuisance,
and pay us the sum of 9s. 3d. per
week for rent thereof. You to pay
local board rates, and we to pay
poor rates and water rates as
hitherto." Held, that there was
a demise of the premises for a
term of ten years. Duxbury t
Sandiford, 80 Law T. (N. S.) 552.
96 Holladay v. Chicago Arc. L. &
P. Co., 55 111. App. Div. 463, 466.

270 LAW OF LANDLORD AJSTD TENANT.

a license is not usually assignable. Thus, for example, the per-
mission given by a land owner to another person to hunt or fish
upon his land is merely a license and confers no interest in the
land itself nor will it permit the person to whom the license
is given to delegate his powers under it to another. The li-
cense may be revoked at any time before the licensee has entered
upon the land. A land owner may forbid a licensee to go upon
the land and if the latter disobey the owner he is then a tres-
passer. Another fact which distinguishes a lease from a license
is that by a license no interest in the land is conveyed while by
a lease the tenant is entitled to the exclusive possession and
enjoyment of the land from the time of his entry. If the
contract gives the exclusive occupation, possession and enjoy-
ment for all purposes to the occupant, the presumption is that
the instrument is a lease. This presumption is strengthened
by the fact that the owner removes from the land and sur-
renders possession where he occupied it prior to the contract
and by the further fact that the owner refrains from as-
serting possession or the right to possession during the life of
the contract. A contract by which the use, occupation and pos-
session of lands for all purposes not expressly forbidden therein
is conveyed, is a lease and not a license,^^ A contract signed by
the owner which does not confer the right to full and exclusive
possession upon the other party but which simply gives him a
right to enter and to hold possession of land for a particular
purpose, as for example, to cut timber or the like, is presumed
to be a license. An agreement by which the owner of a building

o" Crane v. Patton, 57 Ark. 340, its terms the lessee had a right to
346, 21 S. W. Rep. 466; Smith v. remove a proportionate lot of tim-
Simons, 1 Root, 318, 1 Am. Dec. ber and if the lessor deprived him
48; Haywood v. Fulmer (Ind. of this right he was liable in dam-
1892), 32 N. E. Rep. 574, 18 L. R. ages for what the timber would
A 491; Carey v. Richards, 2 Ohio have been worth when removed,
Dec. 630. In Crane v. Patten, 57 less the expense of removing it.
Ark. 340, 346, the paper was held Nor was it necessary that this act
to be a lease and not a license be- should have been enforced by
cause the rights of the lessee were force or violence. If the landlord
vested and were not determinable prevented the enjoyment of this
at the will of the lessor. The sale privilege by inducing the servants
of the property during the term of the lessee to leave his employ-
would not extinguish the lease if ment, he would be liable for dam-
the purchaser had notice of it. By ages.

WHAT CONTEACTS ARE LEASES. 271

for a consideration, permits a corporation to run electric wires
along the walls thereof "* which creates a right of way °^ is a
license. So, an arrangement between a father and his daughter
by which she is to select such land as she desires and he is to de-
vise the same to her on his death, the daughter at once to enter
into the possession and control of the same subject to the right
of the father to collect certain rents, is a mere license. The re-
lation of landlord and tenant does not exist between them.^ The
following examples illustrate the general rule and show cases in
which upon the particular circumstances, the courts have held
that an agreement was a license and not a lease. Thus, an agree-
ment to give a person desk room in an office is usually a license.
A person who hires desk room from the tenant of an office or
other portion of a building is not himself a tenant. He has
merely the right to use a chair and a desk in the office of his les-
sor while the latter 's tenancy lasts. His right of use is at an end
with the term of his lessor.^ An agreement under seal by which
the owner of a farm permits another to live thereon for a term
of years in consideration of the latter clearing a part of the same,
and putting certain buildings thereon, the owner reserving the
use of all the timber except such as may be necessaiy for the
buildings, rails, and fire-wood of the occupant, is not a lease and
does not create the relation of landlord and tenant. The occu-
pant is in under a license only, and he has no right to the timber
cut on the cleared land, except for the purpose of building, or
for fences, or for fire-wood.^ An agreement by which the OAVTier

9s Holladay v. Chicago Arc L. & yond the seas, to hunt in a man's

P. Co., 55 111. App. 463. park, to come into his house, are

89 Thomas v. McGuire, 1 Ky. only actions which, without li-

Law Rep. 65. cense, had been unlawful. But

1 Berry v. Potter, 62 N. J. Eq. a license to hunt in a man's park,
664, 29 Atl. Rep. 323. and carry away the deer killed to

2 Swart V. Western Union Tele- his own use, to cut down a tree
graph Co., 12 Detroit Leg. N. 609, in a man's ground, and to carry
105 N. W. Rep. 74. it away the next day after to his

3 Callen v. Hilty, 14 Pa. St. 286. own use, are licenses as to the act
"A dispensation or license prop- of hunting and cutting down the
erly passeth no interest, nor alters tree, but as to the carrying away
nor transfers property in any- of the deer killed and the tree cut
thing, but only makes an action down, they are grants. So, to li-
lawful, which without it had been cense a man to eat my meat, or
unlawful. As a license to go be- to fire the wood in my chimney, to

272 LAW OF LANDLORD AND TENANT.

of certain machines pays for permission to place the machines in
a factory, and for full access to the same for himself and em-
ployees, for the purpose of working them, the owner of the fac-
tory supplying the steam power^ is not a lease nor does the re-
lation of landlord and tenant exist between the parties.* But
where the owner of premises lets a certain tenant the portion of
a room with steam power for the working of machines at a cer-
tain rate for the use of the premises and the power, it is a lease
and the owner of the premises may distrain.^ An agreement by
which a person was vested with the right to use certain moorings
on a navigable river^ for the purpose of mooring a barge under
an agreement with the officials having charge of the preservation
of the river, that he would pay certain sums of money, the agree-
ment to be terminated on thirty days' notice, is a license and not
a lease.* An agreement between a landowner and a corporation
by which the former agrees to prepare his land at his own ex-
pense so that it may be used for an athletic ground by the corpo-
ration with the provision that the owner is to be compensated for
his improvements out of the income is not a lease. The corpora-
tion which uses the ground after it has been improved by the
owner is responsible for any damages which the owner may be
subjected to in being deprived of the use of his property. Inas-
much as the relation of landlord and tenant does not exist, the
owner cannot recover for the rental value of his improvement,
but the corporation will be liable for the reasonable value of the
use of the ground upon the presumption that if it had not been
used, the owner might have let it for other purposes.'^ An agree-
ment by which the lessee of a theatre grants another person the
exclusive use of all refreshment bars, smoking rooms and wine

warm him by, as to the act of (N. S.) 634, 32 L. J. C. P. 252, 8
eating, firing my wood, and warm- 1j. T. 429, 11 W. R. 833.
ing him, they are licenses; but it ^ Selby v. Greaves, 37 L. J. C. P.
is consequently necessary to these 251, L. R. 3 C. P. 594, 19 L. T.
actions that my property may be 186, 16 W. R. 1127.
destroyed, the meat eaten, and the « Watkins v. Milton, next Grave-
wood burnt. So, as in some cases, send Overseers, 37 L. J. M. C. 73,
by consequent and not directly, L. R. 3 Q. B. 350, 18 L. T. 601, 16
and as its effect a dispensation W. R. 1059.

or license may destroy and alter " Dockstader v. Young Men's

property." Thomas v. Sorrell, Christian Ass'n (Iowa, 1906), 109

Vaughan, 351. N. W. Rep. 906.
* Harifock t. Austin, 14 C. B.

WHAT CONTRACTS AKE LEASES. 273

cellars in the theatre together with the exclusive right of adver-
tising in such place for a term of years for a fixed rent is a
license. The fact that the agreement contains a stipulation that
the lessee of the theatre might put it to an end on non-payment
of rent and a covenant of quiet enjoyment does not change it
into a lease.^ An agreement by which a land-owner in England
granted shooting rights over his woods with a yearly rental is
something more than a mere license and is not therefore revoc-
able at will. If it be assumed that it is a tenancy, it is one from
year to year though perhaps a shorter notice to quit would be re-
quired at common law than in the case of a tenancy of farm
land. The reason for requiring a six months' notice to quit
which exists in the case of a lease of farm land, does not exist in
the case of a lease of a right to shoot game over another man's
land.^

§ 194. Agreement permitting the cutting of timber.
Whether the agreement by one who owns land that another may
enter upon it and cut the timber and remove it therefrom is a
lease or a contract of sale depends upon the intention of the
parties. If the permission to cut timber confers the exclusive
possession of the land on which the timber is, upon the person
to whom it is granted, it is a lease. And an instrument in writ-
ing which confers upon the party accepting the same the owner-
ship of trees and timber on a tract of land may be a lease though
no rent is reserved. The contract confers the title to the timber
and trees and it is therefore a bill of sale. So far as the land is

8 Edwards v. Barrington, 85 or lodger has the exclusive enjoy-

Law T. 650, 50 Wkly. Rep. 358. ment of the room, but the owner

0 Lowe V. Adams, 70 L. J. Ch. or his servants have to keep it in

783; (1901) 2 Ch. 598, 85 L. T. 195, order and have a right of entry

50 W. R. 37. Other circumstances for that purpose. The actual oc-

may arise which will render it cupation of the room is therefore

important to determine whether a in the owner of the hotel or lodg-

writing is a lease or a mere li- ing house and the agreement is a

cense. A very familiar example license. If, however, the agree-

of such a case or class of cases is ment gives the exclusive occu-

that of the occupation of a fur- pancy of the room or lodgings to

nished room in a boarding house the lodger and the landlord has

or hotel, where the question may nothing to do with the premises

arise whether the occupant is it is very evident that a lease was

such under a lease or whether he intended,
is a mere licensee. The occupant
18

274 LAW OF LANDLORD AND TENANT.

concerned it is a lease because it gives the exclusive possession
and occupation of the land to the purchaser of the personal
property though only for the single purpose of cutting down ^°
the timber. Hence, the vendee on his entry upon the land may
take possession of the timber which was lying on the land when
he entered having been cut down by a trespasser before his
entry.^^ Assuming that the contract for the sale of standing tim-
ber is a lease it follows that it must be certain as to the terra.
If there is any uncertainty about the duration of the term, as
where, for example, the writing does not state the commence-
ment of the term it will be void.^- A writing which confers no
exclusive possession of the land and merely gives the party a
right to enter upon it and to remove timber will be regarded as
a license. Thus, an agreement which gives the right of cutting
and removing some timber in each year which is to be paid for
in installments and which agreement is renewable when it ex-
pires, is a mere sale of the timber with a license to go upon the
land and cut it, though the parties call it a lease. Hence, it
follows from this that the relation of landlord and tenant is not
created and the owner of the land cannot recover any rent after
all the timber has been removed from it.^^ These rules and prin-
ciples which we have just stated are applicable with equal force
to agreements between the owners of land and other persons who
enter upon the land to quarry stone, dig for mineral or bore for
oil. Agreements by which land owners permit other persons to
enter upon their land and to work mines where they do not in-
volve the exclusive possession of the land itself, are licenses and
not leases.^* But an agreement by which a person who is to mine
the coal in land is given the exclusive possession of the land for

10 Alexander v. Gardner (Ky. i^ Riddle v. Brown, 20 Ala. 412
1906), 96 S. W. Rep. ^18. Funk v. Haldeman, 53 Pa. St. 229

11 Glenwood Lumber Co. v. Phil- Caldwell v. Fulton, 31 Pa. St. 483
lips, 73 L. J. P. C. 62; (1904) A. Gillett v. Treganza, 6 Wis. 343
C. 405, 90 L. T. 741, 20 T. L. R. Grubb v. Bayard, 2 Wall. Jr. (U.
531. S.) 81; Dale v. Wood, 2 Barn. &

12 Gay Mfg. Co. v. Hobbs, 128 N. Ad. 724; Wheeler v. West, 71 Cal.
C. 46, 38 S. E. Rep. 26. 126, 11 Pac. Rep. 871; Inhabitants

13 Crane v. Patton, 57 Ark. 340, of Town of Rockport v. Rockport
21 S. W. Rep. 466; Baird v. Mil- Granite Co., 58 N. E. 1017, 177
ford Land & Lumber Co., 89 Cal. Mass. 246, 51 L. R. A, 779.

552, 555, 26 Pac. Rep. 1084.

WHAT CONTRACTS ARE LEASES. 275

a term of years is a lease. ^^ So, an instrument is a lease by
which the owner of a stone quarry agrees with a person that the
latter shall take out the stone and shall sell it, and the owner is
to receive a portion of the proceeds.^® So, also, an instrument
which expressly permits a licensee to have the exclusive rights to
all gravel and sand for a particular year and excludes all other
persons from the premises is a lease.^^

§ 195. The possession of a tenant under a void lease. The
entry of a person into possession with the owner's consent under
a void lease constitutes the relationship of landlord and tenant
between the occupant and the owner.^* A tenancy arises whose
duration and general character will depend upon express con-
tract if one is subsequently made; or upon implication created
by the conduct of the parties. ^'^ In the absence of this, such
holding is usually regarded as a tenancy at will.-" The payment
of rent for a year at the end of the first year or for a month at
the end of the first month of the occupation would be strong
presumptive though not conclusive evidence of a lease from
year to year or from month to month.-"^ Aside from all questions
as to the length of the term under such an occupation, it is well
settled that the owner may recover in an action of assumpsit
from the occupant under the void lease the reasonable value of
the use and occupation of the premises." And it has also been
held that, where the occupant of land or a tenant is in posses-
sion under a lease which is absolutely void, the lease cannot be
resorted to or considered in evidence to determine the amount
which shall be paid by the occupant for use and occupation.'^

15 Consolidated Coal Co. of St. 20 See ch. — .

Louis V. Peers, 150 111. 344, 37 N. 21 Vinz v. Beatty, 61 Wis. 645,

E. Rep. 937; Caldwell v. Fulton, 649, 21 N. W. Rep. 7S7; Koplitz

31 Pa. St. 475; Harlan v. Coal Co., v. Gustanes, 48 Wis. 48; Laugh-

35 Pa. St. 287. ran v. Smith, 75 N. Y. 206; Huyser

16 Barry v. Smith, 23 N. Y. 129, v. Chase, 13 Mich. 98.

1 Misc. Rep. 240, 23 N. Y. S. 261, 22 Hays v. Garee, 4 Stew. & P.

69 Hun, 88, 53 N. Y. St. Rep. 57. (Ala.) 170.

iTHazwood V. Fulmer (Md.), 32 23 Vinz v. Beatty, 61 Wis. 645,

N. E. Rep. 574. 649, 21 S. W. Rep. 787. See, also,

18 Brubaker v. Poage, 1 T. B. Barry v. Ryan, 4 Gray (Mass.)
Mon. (Ky.) 123. 523, 526, where the landlord suing

19 Howard v. .Tones, 123 Ala. 488, on a lease whose execution he
26 So. Rep. 129. failed to prove was precluded

270 LAW or LANDLORD AND TENANT.

§ 196, A lease with an agreement to sell the premises. An

instrument may at the same time be a lease and also a contract
to convey the premises and enforceable as such by the lessee.
This would be the case where land is leased for a term which is
specified with a covenant by the lessor that, if the lessee shall
pay all the rent under the lease as it accrues, the lessor will at
some future date convey the land to the lessee. The promise to
convey is specifically enforceable as it is based on a good and
valuable consideration, i. e., the payment of the rent by the les-
see. Until the day an'ives when the lessee has the right to de-
mand a conveyance, the instrument continues to be a lease, the
relation between the parties is that of landlord and tenant and
the former may oust the latter for the non-payment of rent as in
the ordinary cases of landlord and tenant. But after alj the in-
stalments of rent have be^n paid the instrument is no longer exec-
utory^ but executed; and the parties are no longer landlord and
tenant but are vendor and vendee, with a right in the vendee to
procure a specific performance of the agreement to convey, in-
cluding the deliver}^ of a deed in a court of equity as against the
owner of the land.-^ For an option to purchase contained in a
lease does not destroy the relationship of landlord and tenant
created by it, until the option is executed. Thus, the fact that
a lease contains an agreement by the landlord that he will sell
the premises to the tenant for a price agreed on, and that he
will accept in part payment, the money which may have been
paid as rent, does not make the writing an agreement to sell.
The relation of landlord and tenant exists under it, and, where
the tenant never pays any rent, the landlord may maintain a
proceeding in forcible detainer or other possessory action to
oust him.^° Whether an instrument is a lease or an agreement
to sell the premises is a question of construction upon all the
language of the instrument. The use of the word grant in an
instrument conveying an interest in land negatives an intent to
create a lease and indicates that a sale was intended. The word
is then synonymous with convey and these words may be used

from recovoririK on an implied Rep. 126; Thomas t. Johnson

contract to pay rent. See use and (Ark. 1906), 95 S. W. Rep. 468.
occupation. 2.1 Colored Homestead & Build-

'-'•• Davis V. Robert, 89 Ala. 402, ing Ass'n t. Harvey, 23 Ky. Law

404, 8 So. Rep. 114, 18 Am. St. Rep. 1009, 64 S. W. Rep. 676.

WHAT CONTRACTS ABB LEASES. 277

interchangeably. ITenee a grant of a right of way is not a lease
of the ground but a conveyance, sale or transfer of an incorpo-,
real easement and where such a grant is made to a railroad over
the land of the grant it will conclusively be presumed to con-
stitute a perpetual privilege though provision is made for the
payment of an annual rental for a term of years.-" So in con-
elusion, the character of an agreement in writing by which the
occupant of land is to pay a certain sum yearly for its use, is
not altered by an agreement that if, within a certain time the
amount paid by the tenant equals the principal and interest of
a note given by him, he is to have title to the land.-^

§ 197. Lease or mortgage. The question sometimes arises
whether a writing by which the possession of premises is trans-
ferred is a lease or a mortgage. In determining this question,
the courts will, as in all cases of construction, seek to ascertain
the true intention of the parties, and having ascertained this,
will seek to put that intention in operation irrespective of the
technical language of the instrument. In other words, in deter-
mining whether an instrument was meant to operate as a lease
or as a mortgage, courts, and particularly courts of equity in
which this question most frequently arises owing to the juris-
diction which is exercised in equity over mortgages and trusts
will look to the substance and not to the mere form of the in-
strument. All the circumstances of the case, including the situa-
tion and relation of the parties and of the subject matter may
be considered by the court,-^ for the distinction between a lease
and a mortgage of real property is a very clear and important
one and the effect and operation of these two instruments quite
diverse. In the case of a lease there is carved out of the fee,
a more or less lengthy term, but in no case all that the owner
possessed or had power to convey, usually with a payment of
rent and an estoppel upon the parties to deny the title of each
other. In the case of a mortgage, the relation of debtor and

26 Des Moines Co., etc.. v. Tub- 27 Nobles v. McCarty, 61 Miss,

bessing, 87 Iowa, 138, 140, 54 N. 456.

W. Rep. 68, in which the court ss Packard v. Corporation for

saj's "we are unable to find a Relief of Widows, etc., of Prot.

single instance where the word Epis. Church in Maryland, 77 Md.

grant is construed as lease." 240, 247, 26 Atl. Rep. 411; Mon-
tague V. Sewell, 57 Md. 412.

278 LAW OF LANDLORD AND TENANT.

creditor exists and the instrument is executed not like a lease
for the purpose of transferring possession, but as security for
a debt. The fee is granted absolutely in form, with possession
retained in the grantor, and with a proviso that the grant shall
be void if the debt shall be paid.-^ An agreement by which the
owner transfers to another the possession of premises as collat-
eral security for a debt with power to receive and use the rents
and profits until a certain date, though in form a mortgage, is in
effect a lease and creates the relation of landlord and tenant. It
is not material that the instrument contains no operative words
of grant or demise. The instrument transfers the possession and
the owner divests himself of the possession and transfers it to
another who being thereby his tenant, holds in subordination to
the owner's title. The latter may collect the rents but must ac-
count for them to the owner.^** An owner of land who raortgages
it under an agreement that he shall remain on it and cultivate
it, paying the mortgagee a certain sum each year, the surplus
of which over the interest and taxes is to be applied to pay off
the mortgage debt, is not a tenant of the mortgagee. It is not
material that the payment is called rent.^^ An agreement by the
owner of the premises that a mortgagee may occupy it until the
mortgage is paid creates the relationship of landlord and tenant
between the parties. The term expires by the payment of the
mortgage at any time though it may not be due.^- A deed of
premises with a defeazaiice endorsed thereon providing for a
reconveyance to the grantor upon the latter paying a certain
sum named therein as well as for the use of the farm, the grantor
to have the use of the premises until the sum is paid, is a mort-
gage and not a lease and the parties do not occupy the position

20 In some sections a ground has no cause for complaint so

rent redeemable at a definite fu- long as the lessee shall pay the

ture date is a common security rent. Packard v. Corporation, etc.,

for money loaned, the rent paid in Maryland, 77 Md. 240, 247, 26

being the interest which is due. Atl. Rep. 411.

Nevertheless this is a lease, not -io Wells v. Sheerer, 78 Ala. 142,

a mortgage, for though the lessee 145.

purchases his estate with the priv- 'i Sadler v. Jefferson (Ala.

ilege of his buying the fee at some 1906), 39 So. Rep. 380.

fixed future date at a fixed price, ^- Hunt v. Comstock, 15 Wend.

yet he is not compelled to do so (N. Y.) CC5.
and if he does not do so, the lessor

WHAT CONTRACTS ARE LEASES. 279

of landlord and tenant. Nor does the provision in the deed rela-
tive to the grantor pacing the grantee for the use of the farm
make the former a tenant of the latter, nor change the character
of the instrument from a mortgage to a lease.^^ A clause in a
lease of real property reserving to the lessor a lien for the rent
on the goods and chattels of the lessee placed on the premises,
to be enforced on the non-payment of rent, as in case of a chat-
tel mortgage, by the taking possession and the sale of the prop-
erty is, in its effect and nature, a chattel mortgage, in equity at
least. Hence, for such an instriunent to constitute a valid lien
binding on an innocent purchaser of the chattels, it must be
recorded under the statute as a chattel mortgage.^* An instru-
ment purporting to be an indenture which is in its form and
language a lease, but which recites that the lessee has paid the
rent for the term in full and that he "will reconvey upon the re-
payment of said sum by the lessor, is a mortgage under the gen-
eral rule that any instrument conveying an estate in land and
stipulating that the same shall be re-conveyed on the pajTnent
of money, is a mortgage. The relation between the parties to
this instrument is therefore that of mortgagor and mortgagee.
The mortgagee being in possession and receiving the rents and
profits must, on redemption, account therefore as payment first
to keep down the interest and then to credit upon the principal.
If the money to be paid by the mortgagor is paid during the
term, the condition is not broken and the mortgagor may regain
his possession. If the money is not so paid the condition is
broken in law and the mortgagor has then only an equity of re-
demption and must bring an action to redeem his equity in order
to obt-ain possession. As soon as the rents and profits received
by the qua^i lessee equal the debt, the latter is at once regarded
as paid and the mortgagor's right of entry- is complete. If the
rents and profits exceed the debt, the balance in equity belongs

33 Graham v. Way, 38 Vt. 19; Woodin. 65 N. Y. 459, 22 Am. Rep.
Halo V. Schick, 57 Pa. St. 319, 25 644; Reynolds v. Ellis, 34 Hun, 47;
L. J, 332. Nestell v. Hewitt, 19 Abb. N. C.

34 Mitchell V. Badgett, 33 Ark. 282; Betsinger v. Schuyler, 46
387; Merrill v. Ressler, 37 Minn. Hun, 349; Greeley v. Winsor. 1 S.
82, 33 N. W. Rep. 117, 5 Am. St. D. 117, 45 N. W. Rep. 325, 39 Am.
Rep. 822; Johnson v. Crofoot, 53 St. Rep. 349.

Barb. (N. Y.) 574; McCaffrey v.

280 LxlW OF LANDLORD AKD TENANT.

to the lessor who may recover the same from the lessee by an
action in assumpsit for money had and received.^^ A creditor
who occupies and retains possession of the lands of his debtor
until from the rents and profits he shall have received a sum
sufficient to pay his debt is, from the date of taking possession,
the tenant of the debtor, he is liable to the debtor for the rent
which accrues after the debt shall have been paid, and the debtor
may, upon a failure to pay the rent, institute and maintain dis-
possessory proceedings.^®

§ 198. The lease of space in a department store. In modern
times it is quite common, in the large cities particularly, for a
portion of a building to be sub-let and this rule finds frequent
illustration in the sub-letting of floor space by the proprietor of
a so-called "department store" to a merchant who wishes to
carry on a particular line of business in connection with other
departments in the same building. Whether such an agreement
is a lease or a mere license is to be determined by the general
rules elsewhere stated.^^ If the lessee is to have the exclusive
possession and enjoyment of particular floor space to the exclu-
sion of the lessor, the agreement is a lease and the rules of law
which are applied to the relation of landlord and tenant, regulate
the contract of the parties. As a general thing, the value
of a lease of this character to the tenant lies not so much in the
area of floor space which he occupies as in the opportunity af-
forded him to dispose of his goods. Of course, this opportunity
depends largely, if not wholly, upon the number of people who
frequent the store and with whom he will be brought in contact
by reason of his presence in the store. Hence, the representation
oi the lessor as to the number and character of the customers who
patronize his establishment, the amount he may have spent in
advertising, the number of years he has been established in busi-
ness, the amount of his sales and general facts relating to his
past business standing are material. And if there are any mis-
representations by the lessor in reference to these facts, the lease
may be set aside ''* as having been procured by fraud and deceit.

88 Nugent V. Riley, 1 Met. as Ehrich v. Winter & Co., 103

(Mass.) 117, 121. 35 Am. Dec. 3.55. N. Y. Supp. 1023. 52 Misc. Rep.

s« Wells V. Sherer, 78 Ala. 142. 641.
87 Sec. 193.

WHAT CONTEACTS AEE LEASES. 281

§ 199. A lease distinguished from a contract to furnish board
and lodging. In many cases it becomes of importance to dis-
tinguish between the status of a lodger and that of a tenant and
to answer a question whether one who occupies premises with
the consent of the owner is a lodger or a tenant of the owner.
The lodger is defined by the cases to be one who has only a right
to inhabit another man's house. He has no rights of a tenant
and usually is not entitled to the same remedies. A lod-ger is
a mere licensee whose right to occupy is revocable and who has
no exclusive right to the occupation or possession of any part
of the premises. Sometimes board is supplied with the lodging
and a boarder is one who has food or diet, either with or without
lodging, in another man's house, for compensation. Whether
an occupant of premises is a lodger or a tenant depends on the
circumstances of the case. For example, where a person con-
tracts with the keeper of a hotel for rooms and board, whether
for a week, for a year or for any other certain period, the rela-
tion of landlord and tenant is not created between the parties.
The lodger acquires no interest in the land and has no right to
an exclusive possession. If he is turned out of the rooms before
his time expires, he cannot maintain ejectment or trespass. And
while he remains as a lodger the landlord cannot collect rent in
arrears by distress.^* If the arrangement between the parties
is a lease and not a mere contract to supply board aud lodging,
the rights and remedies of the parties as against each other are
very different. So, if the occupant is a tenant and not a mere
lodger, the agreement between him and the landlord is a lease^
being a conveyance of an interest in land or concerning land,
and where it is for a term of more than a year must usually be in
writing under the statute of frauds. On the other hand, if the
occupant of the premises is a mere boarder or lodger and not a
tenant, then his contract is not a lease but merely an agreement
to furnish board and lodging or lodging only according to the
circumstances and it need not be in Avritinsr.'" Thus an agree-
ment to pay a certain sum yearly for the board and lodging of
two persons in a boarding house, which agreement is terminable
on a quarter's notice by either party is not an agreement for an

39 Wilson V. Martin, 1 Den. (N. ^"1 White v. Maynard, 111 Mass.

Y.) 602. 250.

282 LAW OF LANDLORD AND TENANT.

interest in real estate and hence it is not within the statute.*^
Nor does it signify that such a contract is concerning an inter-
est in land because it expressly points out and designates the
particular apartment or room which the lodger is to occupy.
The technical relation of landlord and tenant is not created be-
tween the parties by a contract which obligates the owner or oc-
cupant of premises to furnish rooms and board whether for a
week, month, year or longer period and the lodger cannot main-
tain ejectment if he is turned out of possession before his term
is at an end nor can the hotel keeper distrain for rent in ar-
rears.*- On the other hand, it has been held that an agreement
to take a certain apartment or rooms in a house as lodgings at
a yearly rent was within the statute of frauds.*^ And it is ob-
vious that, if such be the intention of the parties clearly evidenced
by their language or actions, an entire floor, an apartment, a
series of rooms, or even one room may doubtless be let for lodg-
ings so separated from the rest of the premises and so completely
surrendered to the exclusive control and possession of the lodger
as to become in law and fact his separate tenement and he will
under such circumstances be a lessee.** A contract which in its
terms purports to be a lease and which confers the right to an
exclusive occupation upon the occupant of certain particular
rooms specified, for a precise time and at a definite weekly rate,
such rooms being so separated from all other rooms in the house
as to become in fact and in law a separate tenement, is a lease
and not a contract for board and lodging. The fact that, on
leasing the rooms, the lessor also agrees to furnish food to the oc-
cupant and to his family is not material.*^ The executors of the
lessee who dies during the term, are bound for the full term,
but the lessee's death diminishes the actual amount which may

41 Wright V. Stavert, 2 E. & E. been such that, if an entry had

721, 727. been made, it would have

■•s Wihson V. Martin, 1 Denio (N. amounted to an actual lease of

Y.) 602. the rooms.

<;' Inman v. Stamp, 1 Stark. 12; 4 1 white v. Maynard, 111 Mass.

Edge V. Stafford, 1 Tyrwh. 293, 1 250, 254; Newman v. Anderton, 2

C. J. 391. There is, however, noth- B. P. N. R. 224; Fenn v. Grafton,

ing in the reports of these cases 2 Bing. (N. C.) 617, 3 Scott, 56;

to show that the premises were in Monks v. Dykes, 4 M. & W. 567;

a lodging house, and the agree- Swain v. Mizner, S Gray (Mass.)

ment in each case appears to have 182.

WHAT CONTRACTS ARE LEASES. 283

be recovered thereunder to the extent of the actual cost of
boarding her during the remainder of the term after her death.**'
So, also, the fact that the lessor imposes certain restrictions upon
the lessee as to the manner in which the rooms are to be occupied
and used, does not alter the character of the contract, as it is
still a lease.*^

§ 200. Agreement to board and care for the owner of land.
An agreement to board the owner of land under which the party
who agrees to furnish the board, enters into possession of the
whole or of a portion of the premises may or may not be a lease
according to the circumstances. The presumption is against such
a contract being a lease and this presumption is very materially
strengthened by proof that the oAvner of the land continues in
its possession and control after the entrj^ of the other party.
Another material fact is that the occupation is not for a cash
rent. Thus, an agTeement by which one enters upon the occu-
pation of premises in part and while there, furnishes board to
the owner, who continues to occupy the remainder of the prem-
ises upon a promise by the owner that he will devise the property
to the person who is boarding and caring for him, is not a lease.
The relation of landlord and tenant does not exist between the
parties and the party furnishing the board has his remedy upon

« Oliver v. Moore, 53 Hun, 472, B. (N. S.) 33, 46. So, too, in those

6 N. Y. Supp. 413, affirmed in 131 English cases where the question

N. Y. 589, 30 N. E. Rep. 65. has arisen under the English valu-

46 Oliver v. Moore, 53 Hun, 472, ation and tax acts whether an oc-
6 N. Y. Supp. 413, 25 N. Y. St. cupant of a house was a tenant or
Rep. 37. See, also, S. C, 39 N. Y. a mere lodger it has been held
St. Rep. 500, 35 N. Y". St. Rep. 131. that there must be an actual plac-

47 Porter v. Merrill, 124 Mass. ing of a person in the exclusive
534, 541. See T\Tiite v. Maynard, possession of a house or an apart-
Ill Mass. 250. In Fludier v. ment in a house by the landlord
Lombe. Cas. Temp. Hardw. 307, to make him a lessee and that
Lord Hardwick said: "A lodger merely admitting one as an in-
was never considered by any one mate, the landlord retaining the
as an occupier of a house. It is legal possession and control of the
not the common understanding of whole house, constitutes him a
the word; neither the house, nor lodger only. Smith v. St. Michael,
even any part of it, can be prop- 3 E. & E. 3S3; Stamper v. Over-
erly said to be in the tenure or seers of Synderland, L. R. 3 C. P.
occupation of the lodger." And 388; The Queen v. St. George's
this definition was cited with ap- Union, L. R. 7 Q. B. 90.

proval in Cook v. Humber, 11 C.

284 LAW OF LANDLORD AND TENANT.

the contract which has been made to devise him the property.'*^
Under an agreement of this kind an owner cannot enforce the
remedies which a landlord generally possesses. Thus, an agree-
ment that one shall remain in a house, shall board the owner and
keep the house in repair during the owner's pleasure is not a
1-ease; and the owner, not being a landlord, cannot maintain a
summary proceedings under the statute to oust the other party
as his tenant.*^ An agreement by a daughter binding herself
to board her father several months in each year under which she
takes possession of her father's farm and remains there is not
a lease.*** But an agreement by which one of two tenants in com-
mon agrees that he will furnish a home and support the other in
consideration of his having the whole portion of the land is a
lease,^^

§ 201. Entry upon land of another under an option to pur-
chase from him. A tenancy does not arise by implication of
law between the owner of land and a person to whom he has
given an option to purchase the land at a fixed price and within
a certain time merely because the person having the option enters
on the land to prospect for minerals or for any other purpose
during the continuance of the option ; but if he remains in pos-
session at the expiration of the time without right he becomes a
trespasser.*'^ Hence neither the owner who has given the option
nor his successor in interest can eject such person as a tenant at
sufferance either during the continuation of the option or after
its termination.*'

§ 201a. The mortgagee of the tenant's chattels in possession.
The holder of a mortgage upon personal property which is in
the demised premises who takes possession of the mortgaged
property and of the premises with the consent of the mortgagor
who is a lessee and is permitted to sell the goods and apply the
proceeds to the payment of the mortgag-e debt is not liable for
rent to the lessor of the mortgagor. The mortgagee may under

*8 Matthews v. Matthews, 49 si Shouse v. Krusor, 24 Mo.

Hun, 346-348, 2 N. Y. Supp. 124. App. 279.

40 Schreiber v. Goldsmith, 70 N. 52 Henry v. Perry, 110 Ga. 630,

Y. Supp. 236, 35 Misc. R. 45, 104 36 S. E. Rep. 87.

N. Y. St. Rep. 236. 53 Henry v. Perry, 110 Ga. 630,

5" Story V. Epps, 105 Ga. 504, 31 36 S. E. Rep. 87.
S. E. Rep. 190; Herrel v. Sizeland,
81 111. 447.

WHAT CONTRACTS ARE LEASES. 285

such circumstances make himself liable for rent to the lessor by
an agreement either express or implied. Until he does so he is
only an occupant under the lessee, being in fact merely the agent
of the lessee for the sale of the mortgaged goods and the appli-
cation of the proceeds to the mortgage debt. The lessee con-
tinued to receive the benefit of the occupation of the premises and
he must pay the lessor for the same. If. however, the mortgagor
shall vacate, leaving the mortgagee in possession, and the mort-
gagee pays rent to the lessor, the mortgagee may justly be re-
garded as the assignee of the lease and is liable as such.^* Chat-
tel mortgagees who before they take possession of personal prop-
erty in demised premises promise a lessor to pay rent will be
liable for rent while they continue in possession for the purpose
of selling the goods. Subsequent litigation brought by the
mortgagor involving the enjoining of the sale and the appoint-
ment of a receiver in an action to set aside the mortgages do not
relieve the mortgagees from liability for rent during the time
the action is pending. It is the duty of the chattel mortgagees
to apply to the court in such a suit for an order relieving them
from liability for rent or to consent promptly to the appoint-
ment of a receiver who would then become responsible for the
care of the goods. Having failed to do this, the mortgagees of
the chattels are in the position of assignees of the lessee and they
are liable to the lessor for the rent stipulated to be paid by the
lease and not for use and occupation merely. Nor can they
avoid their liability by proving that the lessor took no proceed-
ings to oust them from possession or to compel them to remove
the mortgaged goods. A court of equity will on application of
the lessor, direct that the rent for which the mortgagors are re-
sponsible, shall be paid out of the proceeds of a sale by the re-
ceiver though the mortgages are decreed to be valid.^^ In con-
clusion, a chattel mortgagee who purchases the mortgaged chat-
tels, the sale being made subject to the landlord's lien, and there-
after enters on and occupies the premises, will be liable for use
and occupation to an assignee of the lessee whom he keeps out
of possession as well as to the lessor on the covenant to pay rent."*"

B* Fisher v. PfoTzheimer, 93 5c Bolton v. Lambert, 72 Iowa,

Mich. 650, 653, 53 N. W. Rep. 828. 483, 34 N. W. Rep. 294.

65 Hatch V. Van Dervoort, 54 N.
J. Eq. 511, 34 All. Rep. 938.

286 LAW OF LANDLORD AND TENANT.

§ 202. Future lease of an unfinished building. There can be
no question as to the validity of an agreement to execute a fu-
ture lease of an unfinished building. Whether the completion
of the building shall be a condition precedent to the execution
of the lease usually depends upon the exact wording of the con-
tract. "Where it has been agreed between the parties that a
lease is to run from the completion of a building which is in
course of construction, and it is stated in the lease, or in the
agreement for the lease, that the building is to be completed on
a certain date, the latter statement is not a covenant that the
building will be completed on that date.^^ A contract cannot
properly be called a lease where the premises referred to in the
same are not in existence when it is executed and the lessor
named therein does not own the land. It is rather a contract
to build with an agreement for a future lease to begin as soon as
the building is ready for occupancy. If the lessee so-called
shall enter into possession and sha'l occupy the building before
it 'is complete, he becomes responsible for rent during his occu-
pancy. He will be presumed to have waived his right to be re-
leased from his covenant to enter or to pay rent. If by reason of
the delay in completing the building he has suffered any dam-
ages, he may recoup them in an action against him for rent, to
the extent of the rent, and if they exceed that amount he may re-
cover the excess.^^ An agreement by which the owner of land
agrees to erect a building on it according to plans and specifica-
tions to be finished on a certain future date with rent to begin
when the building is complete is a lease in presenti with posses-
sion postponed to a future date. The mere fact that there is no
certain and fixed date expressly mentioned in the lease on which
the term is to begin does not invalidate such a lease because the
term is not definite and certain. It is sufficient if the agreement
shall specify when the building is to be completed and shall at
the same time state that th? lessor may have possession when the

C7 Noyes v. Loughead, 9 Wash. no title, is a lease where it does

325, 328, 37 Pac. Rep. 4.52. not in terms provide for the sub-

08 Haven v. Wakefield, 39 111. sequent execution of any other in-

509, 518, 519. A contract which strument and the tenant entered

provides for the letting of a build- on the completion of the building,

ing in course of con.struction Western Boot and Shoe Co. v.

from the date of its completion, Gannon, 50 Mo. App. C42.
the prospective lessor then having

WHAT CONTRACTS ARE LEASES. 287

biiiklintr is completed. The right of the tenant accrues on the
date the building is completed. He may then maintain eject-
ment against an intruder and, on the other hand, he is there-
after responsible to the landlord for the rent.'* But he is not
liable to pay rent unless the building which has been erected
substantially complies with the plans and specifications. He
may show this in an action against him for the rent. He may
also show that parts of the building as to which there were no
plans and specifications have not been constructed in a reason-
ably safe and workmanlike manner for the known purpose for
which the building was meant to be used. If the building is
not substantially adapted to his purpose, tlie tenant is not liable
for rent if he refuses to enter when it is completed. He need
not show that the building is entirely unsafe or in danger of
falling down or actually unsafe for every purpose if it be unsafe
for the known purpose for which it was intended to be used.®**

§ 203. Mortg-agor or his tenant and a purchaser at a sale un-
der foreclosure. A purchaser of premises which have been
sold under a foreclosure does not thereby become the landlord
either of the o^vnaer of the equity or of tenants holding under
leases from such owner, at least where the leases are dated sub-
sequently to the date of the mortgage. The term granted by
the lease after the mortgage has been executed is carved out of
the equity of redemption and is therefore subject to all the in-
cumbrances which are then upon the equity. The purchaser at
the mortgage sale becomes the owner of the fee subject to such
incumbrances only as were liens prior to the execution of the
mortgage. He may accept as his tenants, persons who lease sub-
sequent to his lien even without an actual attornment or he may

50 Colclough V. Carpeles, 89 Wis. there was created a term of years

239, 247, 61 N. W. Rep. 836. See in the premises, with a certain

Bacon v. Bowdoin, 22 Pick. commencement and a certain ter-

(Mass.) 401, where an agreement mination; in short, with all the

to complete a building and fur- requisites of a lease." See, also,

nish water power by a future day as to leases for terms to begin in

was held a lease. Bussman v. futuro. Chapman v. Bluck, 4 Bing.

Ganster, 72 Pa. St. 28.5. in which (N. C.) 187; Trull v. Granger, 8

Sharswood. J., says: "It is true, N. Y. 115, 118; Becar v. Flues, 64

here are no formal words of de- N. Y. 518, 520.

mise, but it is very manifest that eo Colclough v. Carpeles, 89 Wis.

after the erection of the building 239, 248, 61 N. W. Rep. 836.

288 LAW OF LANDLORD AND TENANT.

treat them as trespassers, and may recover possession from them
by ejectment or an action of forcible detainer at law or by a
writ of assistance according to the local practice.®^ Where the
purchaser at a foreclosure sale evicts the tenant of the mortgagor
who is subsequent to the mortgage, the tenant is not entitled to
emblements.*^ On the other hand, the purchaser at foreclosure
cannot distrain for subsequent or prior rent or sue the tenant
of the mortgagor holding over for subsequent or prior rent,^^ or
for use and occupation,** unless the tenant shall have attorned
to him and he accepted him. So it has been held that a mere
notice by the purchaser at foreclosure to a tenant to pay rent t®
him which the latter does not act upon does not make the tenant
liable for the rent. For if the tenant does not attorn to the pur-
chaser there is no privity between them from which the relation
of landlord and tenant may be implied. But the relation of
landlord and tenant is created where after a sale under a fore-
closure, the purchaser at the sale agrees with the former owner
of the mortgaged premises that the latter may remain in posses-
sion, paying him rent for two years after the expiration of the
time to redeem, with an extension of the right to redeem during
the years."^

§ 204. Contracts for advertising space. Agreements by
which the owner of land permits another person to place an ad-
vertising sign upon it are becoming more common in modem
times. In many eases the agreement permits the person desiring

61 Downard v. Groff, 40 Iowa, 267, 271; Rogers r. Humphreys, 4
597, 599; Oilman v. Wells, 66 Me. Ad. & El. 299.

273; Lane v. King, 8 Wend. (N. 64 Peters v. Elkins, 14 Ohio.

y.) 584; Jones v. Thomas, 8 344, 347.

Blackf. (Ind.) 428, 431; Reed v. 65 Eldridge v. Hoefer, 45 Oreg.

Bartlett, 9 111. App. 267; Bartlett 239, 77 Pac. Rep. 874. A tenant

V. Hitchcock, 10 111. App. 87; Pet- of a mortgagor by a lease made

ers V. Elkins, 14 Ohio, 344, 347; subsequently to the lien of the

Sprague Nat. Bank v. Railroad mortgage does not thereby become

Co., 48 N. Y. Supp. 65, 22 App. Div. a tenant of the mortgagee (Brid-

526; McKircher v. Hawley, 16 well v. Bancroft, 2 Ohio Dec. 697),

Johns. (N. y.) 289. or of his assignee (.lackson v.

62 .Tones v. Thomas, 8 Blackf. Rowland, 6 Wend. (N. y.) 666,22
(Ind.) 428, 431. Am. Dec. 507), in the absence of

03 Reed v. Bartlett, 9 111. App. an attornment or express agree-
ment to that effect.

WHAT CONTRACTS ABE LEASES. 289

to advertise to erect or build a wooden sign upon vacant land.
The placing of the sign involves the erection of a more or less
permanent wooden structure which is fastened to the land and
which occupies more or less space upon it. The making of such
a contract creates by implication a license on the part of the
landowner for the other party to the contract to enter upon his
land for the purpose of erecting the structure and thereafter
from time to time to enter upon it for the purpose of caring for
and maintaining it. It therefore follows that while the sign is
on the land there can be no trespass where the entrance is solely
for the purpose of carrjnng out the contract. In other cases the
sign is placed or erected upon a building, sometimes being
painted upon the roof, or upon a wooden structure built
upon the roof, and sometimes being painted on the walls
on the front or sides of a house. The question often arises be-
tween the owner and the other party to the contract whether
such a contract is a lease or a license. Where there is an actual
occupancy and possession of the land or of a portion of the prem-
ises which excludes the landlord from his possession of that por-
tion, the agreement would be a lease. Thus, an agreement by
which a person is to have the use and the possession of a roof
for advertising purposes, in order to get the benefit of which he
must build and maintain a wooden structure upon the roof, is
a lease and not a license.^® So, it has been held that the hiring of
an outer wall of a building for the purposes of painting adver-
tising signs thereon is not a license for the use of the wall but
it is a lease. It involves the exclusive possession of the outside
of the wall. The relation of the landlord and tenant is created
between the owner of a wall and the advertiser.*'' Similar agree-
ments have also been held to be licenses. Thus, an agreement
by a lessee of a floor in a building to permit a third party, in
return for an annual payment to him, to hang a sign on the outer
wall of the premises is a license for the reason that it is merely
a permission to do a particular act upon the premises. The
court held it was a license because it was not a conveyance of the
outside wall for all purposes. Hence this contract not being a
lease the granting of this permission was not a breach of a cove-

66 Pocher v. Hall, 98 N. Y. Supp. st Oakford v. Nirdlinger, 196 Pa.

754. St. 162.

19

290

LAW OF LANDLORD AJSTD TENANT.

nant by the lessee not to underlet.®^ An agreement by which the
owner of property permits another person to place a bill-board
and advertising station on his land, which is not to touch or be
fastened to the wall of the premises and for which the person re-
ceiving the privilege is to pay an annual rent, is not the lease of
the land, though rent is spoken of. The agreement is a mere
license, and it may be revoked by the owner of the land on a
reasonable notice. Having in view a quarterly payment of rent,
the court held a three months' notice sufficient.*^^

§ 205. A purchaser of a crop on an execution sale of a tenant.
One who purchases at an execution sale a crop growing on land
does not necessarily thereby become a tenant of the owner of the
land. The relation of landlord and tenant does not exist between
the purchaser of the crop and the owner of the laud in the ab-
sence of an express agreement to that effect between the parties.

68 Lowell V. Strahan, 145 Mass.
1, 12, 13, 12 N. E. Rep. 401, 1 Am.
St. Rep. 122.

69 Wilson V. Tavener, 70 L. J.
Ch. 263; (1901) 1 Ch. 578, 84 L.
T. 48. The case of Pocher v. Hall,
98 N. Y, Supp. 754, draws a clear
distinction between the construc-
tion and maintenance of an ad-
vertiser's structure in reference to
signs placed upon the wall. Thus,
a lessee of a building is not au-
thorized to let out the roof for
advertising purposes, though he
has a right to sublet other por-
tions of the building. O. J. Gude
Co. V. Farley, 28 Misc. Rep. 184,
in which the court said the pur-
pose of a roof of a building is
primarily to shelter it and all of
its occupants, and the tenant of
the top floor has no better title to
the roof or better right to its use
for any other purpose than shelter
than ha.s the tenant of any other
floor. His right to use the roof
over him is like his right to use
the supporting walls of the foun-
dation when that is essential to

the safety and quiet enjoyment
of his premises. And any exten-
tion of that right must be by
agreement with or license from
the owner. The court further held
that a subsequent owner of the
premises might remove the signs
placed on the roof by the adver-
tising company with the permis-
sion of the tenant without being
liable for trespass. Where a paper,
though called a lease, merely per-
mits the person to go on the roof
of a building and to place adver-
tisements upon a structure already
erected, and conveys no interest
or any right of possession in it
and the sign on which the adver-
tisement was to be placed had
been erected some time before the
contract was executed, it is not a
lease but a license. The adver-
tiser cannot be held liable for the
result of personal injuries where
the sign board was blown down
into the street by the wind. Rey-
nolds V. Van Beuren, 155 N. Y.
120-123, 49 N. E. Rep. 7G3, 42 L.
R. A. 129.

WHAT CONTRACTS ARE LEASES. 291

All that the jjiirchaser gets is the right to remove the crop with
the privilege of ingress and egress to remove it which makes him
a licensee and not a lessee. He is entitled to a reasonable time
after the crop has matured to harvest it and to remove it and these
rights and privileges he enjoys without liability on his part for
the reasonable value of the use and occupation of the land.'^°

§ 206. The judgment debtor holding over after a sale on an
execution. There is no implied promise on the part of a judg-
ment debtor holding over after the sale of his land under an exe-
cution, to continue as a tenant of the purchaser at the execution
sale. Hence there arises no implication of any contract of lease
between him and the purchaser on the execution and, as the re-
lation of the landlord and tenant is based on contract express or
implied, no tenancy exists by implication from the execution
debtor holding over. He is then merely a trespasser who may be
ousted at any time by the purchaser on the sale and from whom,
at the same time, no rent can be collected by the purchaser for
the period he remains in possession.'^^ If however the purchaser
permits the judgment debtor to continue in possession, and a
fortiori, if knowing who he is, he receives rent from him while
he holds over, the relationship of landlord and tenant arises be-
tween the parties and a tenancy at will is created, unless some
specific term shall be agreed upon by them.'^^

§ 207. Whether an instrument is a lease or a partnership
agreement. It sometimes becomes important, in view of the
difference which in law exists betw^een the reciprocal rights and

70 Raven tas v. Green, 57 Cal. (Tenn.) 16, and Wood v. Turner,
254; McClellan v. Krall, 43 Kan. 7 Humph. (Tenn.) 517, it was
216, 218, 23 Pac. Rep. 100; Crad- held that one who is in possession
dock V. Riddlesbargar, 2 Dana when land is sold by virtue of a
(Ky.) 205; Coombs v. Jordan, 3 decree in chancery or under an
Bland Ch. (Md.) 284, 22 Am. Dec. execution at law is a quasi tenant
260; Hartwell v. Bissell, 17 Johns. oi." the purchaser at least to the
(N. Y.) 128; Brittain V. McKay, 35 extent of being estopped to deny
Am. Dec. 738; Smith v. Tritt, 28 the title of the purchaser. See,
Am. Dec. 565; Whipple v. Foot, 2 also, to same effect, De Silva v.
Johns. (N. Y.) 418. Flynn, 9 Civ. Pro. Rep. (N. Y.)

71 Tucker v. Byers, 57 Ark. 215, 42G.

21 S. W. Rep, 227; Griffin v. Roch- ■?2 Munson r. Plummer, 59 Iowa,

ester, 96 Ind. 545; Chalfin v. Ma- 120, 12 N. W. Rep. 806: Jackson

lone, 9 B. Mon. (Ky.) 496. In v. Sternbergh, 1 Johns. Cases, 153.
Siglar V. Malone, 3 Humph.

292 LAW OP LANDLORD AND TENANT.

duties of partners and those of landlord and tenant, to determine
whether a writing is a partnership agreement or a lease. On this
question no general rule can be laid down for each case is a law
unto itself to be determined according to the intention of the
parties to be gathered from the contents of the writing and the
circumstances of the parties and of the subject matter. That the
writing describes the parties to it as partners is not conclusive
if it is otherwise apparent that a lease was intended. So, an in-
strument which recites that the parties to it are partners in busi-
ness and that they as such own a building but which furthermore
provides that one of them is to take charge of and run the prop-
erty as a hotel for a term of years and to pay to the firm at the
end of each year a fixed sura is a lease for a term of years and
not a partnership arrangement, terminable by either party.
This is apparent not only from the fact that the entire posses-
sion is transferred to a lessee but also because there is no provi-
sion for a division of either profits or loses. Hence the fact
that the landlord supported a statute passed after the leasing
by the enactment of which the profits of the hotel are greatly
diminished is no breach of the lease entitling the tenant to ask
for a rescission as he took the lease subject to regulation by the
legislature.'^^ An agreement which provides that the occupant
of certain premises is to pay as rent to the owner one half of the
profits resulting from the occupant carrying on a business in the
said premises is a lease and not an agreement of partnership.
Leases providing for the pajrment of a share of the profits as
rent are by no means uncommon. The fact that the agreement
does not provide for a division of the losses, if any, between the
parties is not always material. And the presumption that such
a writing constitutes and was intended by the parties for a lease,
and not as an agreement for a partnership would be rendered
almost, if not altogether, conclusive, by the fact that it speaks
of a yearly ren1;il to be paid, provides for a renewal when it
exf)ir(;s and confers on the occupant the right to assign the lease-
hold interest.'^'* A Meriting which purports to be in form at least
a Icjusf, and wliich confers upon the lessee so-called, the entire
c(H)lrol of a factory together with the right to employ and to
discliarge persons working there, rejserving to the owner of the

Ts Baiighman v. Partman, 14 S. 74 z. c. Miles Co. v. Gordon, 8

W. Rc-p. (Ky.) 342. Wash. 442, 36 Pac. Rep. 2G5, 267.

WHAT CONTEACTS AEE LEASES. 293

premises no powers as to the management of the business but
stipulating that the profits of the business exceeding a certain
amount shall be paid to the party owning the factory and plant
creates the relation of landlord and tenant and not that either
of partners or of principal and agent."^ So, an agreement for
one year by which, in consideration of receiving one half of the
crop, the owner of land permitted another to occupy it, each
party to furnish one half the stock and seed, and the lessee to
supply the farming implements and the labor and also to pay
the taxes, and to account at intervals for all receipts and ex-
penditures, is a lease, and not a partnership agreement/* From
the cases cited it may be gathered that a division of the profits
between owner and occupant is of very little weight as raising
a presumption of a partnership where the division is made in
lieu of paying rent. For the money thus paid to an owneT
though it may be called a share of the profits is in reality rent.
The amount may fluctuate but its character as rent remains
fixed. And money paid and received as rent does not lose its
character as rent because the parties to the payment chose to
call it a division of partnership profits. The real test in all of
these cases lies in the answer to the question in whose control is
the premises? And the fact that the occupation, enjoyment and
control of the premises are wholly surrendered by one party and
exclusively vested in the other goes a long way to convince one
that a lease was intended.

§ 208. Contracts for steam heating and for steam and water
power. Agreements by which owners of premises stipulate
to furnish persons who are their tenants with a stipulated steam
power are very common and may with some propriety be called
leases. Regarding them as leases, the general rules of construc-
tion of leases apply. Some special rules growing out of the use
of steam for power and out of the character of the means by
which it is generated and supplied must also be considered. In
construing a lease of steam power in connection with a lease of
the premises, the court will consider the previous condition of
the premises under the general rule that a grant will be con-

TsAult Wooden-Ware Co. v. 113, 8 W. N. C. 475, 37 L. I. 300,

Baker, 26 Ind. App. 374, 58 N. E. 12 Lane. Bar. 41, affirming Brown

Rep. 265. V. Jacquette, 1 Del. Co. 297.

T'. Brown v. Jaquette, 94 Pa. St.

294 LAW OF LANDLORD AND TENANT.

stnied by considering the condition of things M'hich were in the
minds of the parties when it was made. Hence, where a land-
lord in leasing premises which required the use of steam power
for their full enjoyment confers on the tenant the right to use
half the power of "the then present therein located steam en-
gine, " it is competent for the lessee to show his prior accupancy
of the premises and his manner of the former use of the power
supplied by the engine. The fact is that the lessor when execut-
ing the lease actually knew these facts and therefore contracted
with them in view. And where the lessee had used the exhaust
steam after it had furnished him power and it was absolutely
necessarj^ for his business for him to continue to do so a right
to use it will pass under "appurtenances" where the "steam
power" only is demised.''^ "Where a lessor is bound to furnish
the necessary power to run the lessee's maehiners", as it was fur-
nished when the lease was executed, and a blast was necessary
to enable the lessee to use his forges and was when the lease was
made and subsequently thereto for years actually supplied, so
essential an incident will be considered as passing by the lease,
and it will not be presumed to have been held by the lessee, under
a license, revocable at will.'*' Usually there is no implied obliga-
tion on the lessor to furnish the lessee with steam power. Thus,
the lease of a foundry with the joint use of an engine room by
the parties with an agreement by the tenant to pay for steam
furnished by the landlord, in consideration of which the landlord
was to have the use of the engine free of charge, does not bind
the landlord to furnish the tenant with steam. There certainly
is no express obligation to do this nor is there one implied from
the terms of the agreement.'^* An agreement by a lessee simply
to pay for steam furnished without requiring the lessor to fur-
nish any, and without the lessor agreeing to furnish any, raises
no obligation to furnish or accept power. But if the furnishing
of steam by the lessor was a necessary incident to the use of the
premises by the occupant and the power had been used by a
former tenant and the lessor knew all this, there may arise a
presumption that the lessor Avas to furnish steam power. A

77 Thomas v. Wiggins, 41 111. to Penn. Iron Co. v. Deller, 113

470. Pa. St. C35, 18 W. N. C. 371, 43

T« Thrc'iJp V. Field, 20 N. J. Eq. L. I. 499.
82, 85.

WHAT CONTRACTS ARE LEASES. 295

landlord of a mill who leases a part of the mill with madiiner\'
and who agrees to supply steam or other power for working the
machinery is by implication compelled to supply the power in
such quantity and manner as will render the working of the
machinery safe. If, owing to a defect in the machinery, power
is supplied in such excess as to break the machinery, and to kill
one of the tenants working there, the landlord will be liable.
The supply of the power is not a mere incident of the lease of a
portion of the premises, but is a substantial contract in itself,
and the tenant is not compelled to take it when it is furnished in
a careless and negligent manner. He may recover from the land-
lord upon the theory of his negligence or upon an implied war-
ranty of the quality of the power, any damages he may have
suffered by reason of an improper, insufficient or excessive sup-
ply of steam or other power.^'' A tenant who sues his landlord
for a failure to furnish steam power which he has contracted to
furnish, it has been held in New York, cannot recover for loss of
profits, nor for the value of materials lost, nor for losses by
reason of inability of his workman to do the amount of work
he could have done had proper steam power been furnished,
nor for repairs to his machinerj-.®^ The measure of his damages
is the difference between the rental value of the premises without
any steam power and its value with the power which the landlord
has agreed to furnish, having relation to the particular use
which was to be made of the building by the tenant.*- In ^Nlassa-
ehusetts, it has been held that the lessee may recover the actual
damages which he has sustained in loss of business hy reason of
the failure or refusal of the lessor to furnish steam power which
he has covenanted to supply. An agreement by the lessor that
he will not charge any rent for the time the lessee is deprived
of steam power by his failure to supply it, does not constitute
a liquidation of the damages unless it clearly and unequivocally

«o Bentley v. Metcalf, 75 L. J. K. v. Giblin, 16 Daly, 258, 32 N. Y.

B. 891, (1906) 2 K. B. 548, 95 L. T. St. Rep. 59, 10 N. Y. Supp. 315,

596, 22 T. L. R. 676; Trenkman y. affirming 5 N. Y. Supp. 545, 25 N.

Schneider, 26 Misc. Rep. 695, 56 Y. St. Rep. 827.
N. Y. Supp. 770, reversing 51 N. «= Pewaukee Milling Co. v. How-

Y. Supp. 232, 23 Misc. Rep. 336. itt, 86 Wis. 270, 56 N. W. Rep.

81 Manhattan Stamping Works 784.
V. Koehler, 45 Hun, 150; Russell

296 LAW 01'' LANDLORD AND TENANT.

appears siicli was the intention of the parties.^^ If the failure
to furnish steam power results in the total deprivation of the
use of the premises, it may be regarded as an eviction. The fail-
ure of the landlord to furnish his tenant, who is a manufacturer,
employing steam with steam power, where the lease stipulates
that the landlord shall furnish a given amount of power, by
reason of which the tenant's men. were kept idle, the tenant suf-
fered great loss in his business and he was finally compelled to
surrender the premises, is a constructive eviction which may
be set up by the tenant as a defense in an action to recover
rent.^* A landlord who has covenanted in a lease of a floor
space, that he will furnish a certain quantity of power to op-
erate the machinery of his lessee, cannot be compelled to do so by
an injunction. Nor can he be restrained by a court of equity
from furnishing a less amount of power. This case comes under
the rule that a contract for service will not be enforced by in-
junction. The lessee's remedy is a legal one. He cannot in
equity procure a specific performance of the contract of the
landlord to furnish steam power unless it can be shown that
there is an obligation on his part to accept such power. The
measure of his damages at law would be the direct loss to his
business because of the failure of the landlord to furnish steam
power.^' The lease of a factory operated by water power not
containing an express grant of such power will convey a right
to use the power by implication so far as the lessor possesses
the right but no further. If, therefore, the water power was
but part of a larger water power in which the lessor was a co-
tenant with others and the lessee should use more than his lessor's
proportion of it, no right of action against the lessor could arise
in favor of other co-tenants.®^

83 Fisher v. Barrett, 4 Cush. as to what they were to give and

(Mass.) 381, 383. receive, see Smith v. Werwenz,

8*Myer v. Roberts (Or. 1907), 185 Mass. 229, 70 N. E. Rep. 57.

89 Pac. Rep. 1051; Trenknian v. ss Sipe v. Bartlett, 12 Ohio C.

Schneider, 56 N. Y. Supp. 770, 26 D. 226, 22 R. 230.

Misc. Rep. 695, reversing order, so Wyman v. Farrar, 35 Me. 64,

51 N, Y. Supp. 232, 23 Misc. Rep. 7l, also construing the words, "as

336. For a lease of steam power now used," in connection with a

under very peculiar circum.slancos mill run by water power.
of the ignorance of both parties

WHAT CONTRACTS AKE LEASES. 297

§ 203. Miscellaneous cases. There are many sorts and kinds
of contracts for the use of land the character of which is ex-
tremely doubtful. Their construction is dependent upon the
particular circumstances of each case and the language of the
contract. Thus, the question may arise whether an instrument
in writing is a lease of land or a license, whether it is a lease or
a contract of sale, or a contract for the hiring of personal prop-
erty. Thus, for example, an agreement by which the officials
of a town confer an exclusive privilege of using a building which
is erected by the person who received the privilege as a market
house to keep the same as a market under a town ordinance re-
quiring vendors of goods to rent a stall of him in the building at
prices fixed by the ordinance is not a lease where the house was
erected upon property w^hicli the towTi did not own. The fact
that no interest in the land passess under this instioiment de-
prives it of the character of a lease. The party to whom the
privilege is granted has his remedy for the breach of the contract
if the town subsequently erects, or permits others to erect a mar-
ket elsewhere, but he cannot use any remedy against the town
Avhich he might have had if the contract were a lease.^ An
agreement by which a person agrees with a corporation to place
on the premises OAvned by the corporation, electric lights at a
certain rental per month, is not a lease, but a hiring of personal
propert}' by the corporation.^^ The line between a license and
a lease is sometimes difficult to distinguish. "Thus, a privilege
granted by a deed in return for an annual payment by which
the grantee is permitted to discharge the drainage of his land
upon the lands granted in the deed, is a lease and not a license.
The occupation of the land by the drainage is evidently suffi-
cient possession to constitute this agreement a lease.^^ The sale
of lumber by a person upon whose land it is growing does not
alone constitute the vendee a tenant of the vendor; but an instru-
ment executed by the land o\\'ner granting all the timber, grass
and berries that may be found on the land for a term of years and
giving him possession is a lease. The grantee may sue there-

87 Brookhaveu v. Baggett, 61 Kittrick Dry Goods Co., 91 'Mo.
Miss. 383, 390. App. 454.

88 Bruckman v. Hargadine -Mc- 89 Morrell v. Mackman, 24 Mich.

279.

298 LAW OF LANDLORD AND TENANT.

after in his own name, as a tenant of this land^ for trespass upon
it and for the conversion of any of the products of the land dur-
ing the term."*' The purchaser of lumber growing on land will
by implication have a license to enter upon the land to remove
it which he must do in a reasonable time. If he does not remove
it in a reasonable time after he is notified that he must take it
away, he will become a tenant of the owner by reason of his
delay in the absence of an express agreement to the contraiy.
If the notice to remove the lumber be accompanied by a state-
ment that a specified rent will be charged in case of his failure
to remove it, he will be compelled to accept the term if he per-
mits the lumber to remain.®^ Contracts and agreements by
which owners of land containing coal or other mineral, permit
other persons to enter upon the land, and to dig mines thereon
are usually regarded as leases. The possession of the person
operating the mine or quarry is the possession of a tenant. This
presumption is strengthened by the fact that there is a fixed
sum payable as rent.®- Thus, an exclusive privilege for a speci-
fied term of years, allowing the party to whom it is granted to
quarry and take away all the stone he may have use for upon
paying the owner of the land a certain fixed sum, according to
the quantity taken by him is a lease. It is binding as such on
both parties where it is clear from the evidence that they in-
tended that the quarry should be actually w^orked. It is binding
on the lessee and he cannot treat it as a mere option. He must
take out a reasonable quantity of the stone, though he may not
have use for all he takes; and if he fails to do so, he is respon-
sible in damages which are to be measured by the agreed amount
he was to pay.°^ The giving of a lease of a stall in a market by
a cily corporation does not deprive it of its power to regulate
markets. The creation of the relation of landlord and tenant
between a city and a market man does, however, limit the power
which the city may exercise over the market. Under such an
agreement it would certainly have less power over the use which
the market man might make of his premises than where the per-

00 Freeman v. Underwood, 66 02 Greenough's Appeal, 9 Pa. St.
Me. 229. 18.

01 Ducey Lumber Co. v. Lane, »3 Watson v. A'Hern, 6 Watts
59 Mich. 521. (Pa.) 362.

WHAT CONTRACTS ARE LEASES. 299

mission to occupy a stall is a mere license. An instrument exe-
cuted by a city which confers upon the occupant of a market
stall a right of possession in exchange for the payment of a
daily rent is a lease. Having granted a lease, the lessor cannot
arbitrarily prevent the tenant from using the telephone service
in connection with his occupation of the stall, or limit his occu-
pation and enjoyment of the stall in an arbitrary manner. No
such power is conferred upon the city though in its charter it
may have an almost arbitrary power to regulate a public mar-
ket. The lessee, however, will not be permitted, because he is a
lessee, to make an unreasonable use of the premises which has
been leased to him or to use it in such a way that it will inter-
fere with the rights of others in the market. The lessor still has
the power to make reasonable regulations which shall be appli-
cable to all persons who occupy stalls in the market.^* A con-
tract by the owner of a mill by which the other contracting
party is to operate it and manufacture shingles from wood fur-
nished by the owner for which he is to be paid so much per
thousand out of which he is to pay for lumber and tools, is a
contract of personal hiring and not a lease of the mill.®^ And
in conclusion, a contract between the owners of lands which are
adjoining that a third person is to erect machinery with a boiler
to operate it on the land of one of them, which machinery and
boiler are to be used by both of the contracting parties, with a
provision that the one who makes the largest offer for the share
of the other should have the first right to buy it, and that neither
of them would sell his land without the consent of the other, is
not a lease. Hence the relationship of landlord and tenant does
not exist between the two parties.^*'

§ 210. Whether occupant of premises is servant or tenant.
The necessity of determining the relations of the parties to a
contract of hiring may arise where the servant occupies prem-
ises belonging to the master. The inquiry may then be. is the
servant a seiwant only or is he also a tenant with all the rights
of a tenant. The matter is always one of intention to be deter-
mined upon all the facts and circumstances of each particular

fl^ Swayze v. City of Monroe »5 Whitney v. Clifford, 46 Wis.

(La. 1906), 40 So. Rep. 926. 138.

86 Hill V. Hill, 43 Pa. St. 528.

300 LAW OP LANDLORD AND TENANT.

case. No general rule can be laid down which shall be decisive
in all cases."^

§ 211. The intention of the parties. In determining whether
a contract is a lease or one of hiring, it must first be decided
whether the principal object of the parties is to treat and ar-
range for. the possession and occupation of the premises with an
intent that the rent shall be paid in labor by the occupant as a
tenant, so that the services are merely an incident of the rent-
ing; or whether the principal purpose of the parties was to sup-
ply and to procure labor,, and the possession and occupation of
the premises were incidental to the labor. This is a question of
law for the court to be decided upon the terms of the contract
and all the circumstances of the parties as they may be deter-
mined by the jury, with particular relation to the character of
the services which were to be rendered. If the principal sub-
ject of the contract is labor, if that was what the owner of the
land was desirous of securing and the occupant of supplying,
then it is a hiring, and not a lease, and the occupation is the
occupation of a servant or agent and not that of a tenant.''^ For
the occupancy of the premises by a servant where the purpose
of the occupancy is merely to enable the servant the better and
more conveniently to perform his services, does not create the
relation of landlord and tenant, particularly where there is no
letting in express terms and no rent is reserved in money.*^^ In
other words, where the occupation of the premises is not the
principal thing, but where it is merely an incident of the em-

87 A person who occupies the relations of the parties is deter-

premises as the servant or agent mined whenever the special pur-

of another for the more convenient pose is accomplished. Deutsch v.

performances of his duty acquires Chemical Co., 11 Ohio Dec. 495,

no estate therein, and is neither a 8 N. P. 428.

tenant at will nor by sufferance, os Bowman v. Bradley, 151 Pa.

though he is permitted to carry St. 351, 24 Atl. Rep. 1062, 10G3, 31

on an independent business on the W. N. C. 142, 17 L. R. A. 213.

premises and receives lower wages oo School District No. 11 of Al-

for that reason. In such, and in- pine Tp. v. Batsche, 106 Mich. 330,

deed all, cases where the posses- 333, 64 N. W. Rep. 196; Kerrains

sion is given for a special purpose, v. Peoi)le, 60 N. Y. 221; State v.

the transaction is treated as a Curtis, 4 Dev. & B. (N. C.) 222;

license, not as a lease, and does Re.x v. Inhabitants of Chesnut, 1

not confer any estate In the prop- Barn. & Aid. 473
erty to which it relates, and the

WHAT CONTRACTS AKE LEASES,

301

ployment, aiid to give the occupant a better and fuller oppor-
tunity to perform the duties of his contract of employment, the
occupant is a servant and not a tenant.

1 Mayhew v. Suttle, 4 E. & E.
347; Allen v. England, 3 F. & F.
49; Bertie v. Beaumont, 16 East,
229; Rev v. Stock, 2 Taunt. 339;
Rex V. Bardwell, 6 Ad. & El. 278;
Regina v. Ponsonby, 3 Ad. & El.
(N. S.) 14; Rex v. Tynemouth, 12
Kasl, 46. A company owned land
on which it opened quarries. On
the land the company erected
buildings which were designed for
use as boarding-houses for em-
ployees. It made a contract with
a person to "run" these boarding-
houses, by the terms of which he
w^as to furnish all furniture, bed-
ding, etc., for the houses, to board
the company's men for so much
per week and to pay it so much
rent each month. The company
deducted each man's board bill
from his wages and paid the total
over to the person, less the rent
for the premises. The number of
men employed by the company
varied each week, and the com-
pany neither agreed to furnish a
certain number of boarders nor
that all their men should board
with the party. The latter gave
his time and personal attention
to the supervision of the boarding-
house. It was held that this
amounted to a lease of the house
and created the relation of land-
lord and tenant, and not of mas-
ter and servant, between the par-
ties. Lightbody v. Truelson, 39
Minn. 310, 40 N. W. Rep. 67. In
deciding this case the court said:
"A tenant may be defined to be
one who has possession of the
premises of another in subordina-
tion to that other's title, and with

his consent. No particular form
of words is necessary to create a
tenancy. Any words that show an
intention of the lessor to divest
himself of the possession and con-
fer it upon another, but of course
in subordination to his own title,
is sufficient. While, of course, the
existence of certain things is nec-
essary to constitute a lease, there
is no artificial rule by which the
contract is to be construed. It is
largely a question of the intention
of the parties, to be collected from
the whole agreement. It seems
to us that the agreement in the
present case all loolcs to a leasing
of these boarding-houses to plain-
tiff, and not to an employment of
him as an agent to manage them
for the company. Every provi-
sion of the contract contemplates
his occupancy as landlord or pro-
prietor. There is nothing to in-
dicate that his possession of the
buildings was not to be exclusive;
on the contrary, the nature of
the business and the manner in
which it was to be run, neces-
sarily imply that it was to be in-
clusive. He was to run the busi-
ness, not for the benefit of the
company, but for himself; the
profits, if any, being his, and the
losses, if any, he would have to
stand. He took his chances on the
number of boarders he would get;
the company did not obligate
themselves to furnish any partic-
ular number. He furnished the
house and provided the supplies
at his own expense, just as any
boarding-house keeper would do,
if running the business as princi-

302 LAW OF LANDLORD AND TENANT.

§ 212. Illustrations of the rule. The fact that the occupant
of land is by a writing designated as the servant, agent or sup-
erintendent of the owner of the land, while some evidence, is by
no means conclusive. It may be shown by all the other circum-
stances that a lease was made in which case the occupant will be
a tenant.^ The fact that one who is acting as a servant has given
him the absolute possession of the premises for a definite period
is a Y&ry strong circumstance to show that he is also a tenant.^
On the question whether the occupant is a servant or a tenant
the facts are usually contradictory. It is for the jury to deter-
mine. The absence of any contradiction as to the facts makes
it a question of law for the court. A person who acts as janitor
and occupies apartments in the building which he rents from
his employer by the month is usually a tenant. The fact that
he deducts his salary from the rent does not alter the relation-
ship which exists between him and the owner.* On the other
hand, a man and his wife who engage to work for the term of
a year as a farmer and housekeeper for the owner of the farm
are servants only. The fact that they occupy a house on the
premises does not alone make them tenants.^

§ 213. The character of the possession of the premises as de>-
termining whether an occupant is a servant or tenant. In de-
termining whether a writing is a lease or a contract of hiring,
the court must consider what possession and control the occu-
pant is to exercise over the premises. This is material to deter-
mine whether an occupant is a servant or a lessee. A lease in-
volves possession by the lessee which during the term is so far
adverse to the lessor as to give the lessee a right to bring tres-

pal, and not as agent for another. were paid was unimportant. That

What was paid him was for board- was a mere question of conveni-

Ing the men, and not as compen- ence."

sation for services as agent. More- 2 Colcord v. Hall, 3 Head

over, he paid a fixed rent for the (Tenn.) G25.

use of the buildings, the amount 3 Snedaker v. Powell, 32 Kan.

of which was not at all dependent 395.

upon the number of boarders the * Anderson v. Steinrich, 74 N.

company furnished. It was to be Y. Supp. 920. See, also. Ofoch-

tbe same whether they furnished lager v. Sinbeck, 50 N. Y. Supp.

one or one hundred. The manner 8G2, 22 Misc. Rep. 595.

In which the board-ljills of the 5 Haywood v. Miller, 3 Hill (N.

men or the rent for the buildings Y.) 90

WHAT CONTR^VCTS ARE LEASES. 303

pass.® The power of a servant over the premises which he occu-
pies as to their use, maintenance and repair is vastly more limited
than that of a tenant under the same circumstances. Thus, the
courts have considered that while many provisions in a lease
have a double aspect and may be consistently construed to make
the occupant either a servant or a tenant, others admit of only
one construction. Thus a provision that the occupant of a fac-
tory is to keep it in repair, that he should have possession of it
for a particular use, that he should employ and discharge ail
persons employed in the factory and fix their wages, that he
should determine the water power to be used, that he might use
the adjacent land, lease buildings thereon and receive and appro-
priate to his own use the rents for the same being appropriate
to a lease and not to a contract of hiring, admit of but one con-
struction and raise a conclusive presumption that the relation
of landlord and tenant exists between the parties.'^ So, where
the owner of a hotel agreed that a party might occupy it for a
term of years, during which he was to live there with his family
rent free, employ and discharge servants and manage and con-
trol the business and in compensation therefor, receive a stipu-
lated portion of the net profits, the relation between the parties
is that of landlord and tenant, not that of master and servant.^
It is quite different where the occupant is the servant of the
owner. In the latter case, he has no possession of his own, ex-
cept so far as he has a license to remain on the land which is re-
voked by his discharge as a servant. If the occupation by the
servant is merely incidental to his employment, the relation of
landlord and tenant does not exist.^ If the use or the occupa-
tion of the laud be as a servant, the master still has possession
inasmuch as possession by the servant is the possession of the
master. As soon as the servant is discharged he becomes a tres-
passer as to the master if he remain on the land and must, on

6 Zinnel v. Bergdoll, 9 Pa. Super. » McQuade v. Emmons, 38 N. J.

Ct. 522, 7 Del. Co. R. 369, 44 W. N. Law, 397; Haywood v. Miller, 3

C. 54. Hill (N. Y.) 90; People v. Annis,

TFiske V. Framingham Mfg. Co., 45 Barb. (N. Y.) 304; Bowman v.

14 Pick. 491, 493. Bradley, 151 Pa. St. 351, 24 Atl.

8 Page V. Street, Speers (S. C.) Rep. 1062, 31 W. N. C. 142, 17 L.

Eq. 159. But see contra. State v. R. A. 213; McCutcheon v. Cren-

Page, 1 Speers (S. C.) 408, 40 Am. shaw, 40 S. C. 511, 19 S. W. Rep.

Dec. 608. 140.

3Qi

LAW OF LANDLORD AND TENANT.

request, quit the premises. He may, it has been held, be ejected
by the master or at his direction and for that purpose such force
may be used as is reasonably necessary. And the right of the
master to eject his discharged servant in no wise depends upon
the answer to the question whether the ser\^ant was rightfully or
Avrongfully discharged. It exists in the one case as well as in
the other; the only remedy of the servant being found in an
action against the master for damages for a breach of the con-
tract of employment.^**

10 Lightbody v. Truelson, 89
Minn. 310, 40 N. W. Rep. 67. In
speaking of a farm servant the
court, by Williams, J., in Bowman
V. Bradley, 151 Pa. St. 351, said:
"The labor was to be performed
upon the land, in its cultivation,
in the care of the cows, and the
delivery of the milk. As Bow-
man was not a cropper, or a ten-
ant paying rent, his possession of
the land and the cows, and the im-
plements of farm labor, was the
possession of his employer. The
barn was used to stable the cattle
and store their feed. The house
was a convenient place for the
residence of the laborers. The
house, the barn, the land, the cat-
tle, the farming tools, were turned
over to the man who had been
hired to care for the property;
but he had no hostile possession,
no independent right to posses-
sion. His possession was that of
the owner whom he represented,
and for whom he labored for hire.
This is not denied as to the farm,
the barn, the stock, or the tools,
but an attempt is made to dis-
tinguish between the house and
everything else that came Into the
powssession of the employee in pur-
suance of the contract of hiring.
There is no valid ground on which
such a distinction can rest. If
the possession of the house be re-

garded as an incident of the hir-
ing, the incident must fall with
the principal. . . . His right
under the contract of hiring was
like that of the porter to the pos-
session of the porter's lodge; like
that of the coachman to his apart-
ments over the stable; like that
of the teacher to the rooms he or
she may have occupied in the
school building; like that of the
domestic servants to the rooms in
which they lodge in the house of
their employers. In all these
cases, and others that might be
enumerated, the occupancy of the
room or house is incidental to the
employment. The employee has
no distinct right of possession, for
his possession is that of his em-
ployer, and it cannot survive the
hiring to which it was incidental,
or under which it is a pai-t of the
contract price for the services per-
formed. So in this case, if the
contract was simply a contract
for labor at one dollar per day
and a house to live in, the plain-
tiff held the house by the same
title and for the same purpose
that he did the land or the cattle
in the care of which his labor was
to be performed. When his con-
tract was ended, his rights in the
premises were extinguished, and
it was his duty to give way to his
successor.

Y7HAT CONTRACTS ARE LEASES, 305

§ 214. The power of the master to remove his servant from
the premises. The question whether the occupant of premises
owned by another is a servant or a tenant of the owner, may
arise where the owner seeks to employ force to remove the goods
of the occupant from the premises and the latter has resisted
force with force. If the relation of master and servant exists
between the occupant and the owner, it follows that the legal
possession of the premises is in the owner and not in the servant
and he would consequently have the legal right to remove the
goods and furniture of the occupant therefrom. Having such
legal right, and the possession of the servant being merely the
possession of the owner, the latter is justified in using the degree
of force necessary to effect the removal of the goods and the oc-
cupant would not be justified in using force to prevent their re-
moval unless the conduct of the owner was such that, because
he threatened to use a pistol or other deadly wer^pon, the occupant
believed or had reason to believe that his life was in imminent
danger. Under circumstances of this character the occupant,
though he be a servant, would be justified in using the necessary
force to prevent injury to himself but no more. If, on the other
hand, the occupant is holding the premises as a tenant and not
as a servant of the owner, he has the legal right to defend his
property and possessions by proper and necessary means even to
the extent of employing force. He can then legally be ousted
only by some appropriate action provided by law, for the pur-
pose of transferring to the owner the possession of the property.
If, however, being a tenant, he shall employ excessive or unneces-
sary force in resisting the efforts of his master, who is also the
owner of the premises, to regain possession either as to the
amount of the force employed or as to the character of the weap-
ons used, he may make himself criminally liable."

§ 215. Contract of hiring by a religious society. A contract
by which a religious society hires a pastor or minister is in law
a contract of master and servant. The consideration proceeding
from the society is usually a salary and in some cases the use
of the parsonage as a residence. The occupation of the parson-
age by the pastor as a part of his compensation does not neces-
sarily make him a tenant thereof. The contract between him
and bis employer is a personal hiring and terminates on his death

11 People V. Kerrains, 60 N. Y.221.
20

306 LAW OF LANDLORD AND TENANT.

because of tlie rule that a contract personally to either
party terminates with the death of the party. Hence, it follows
that the personal representative of the pastor after his death has
no right to the possession of the parsonage, for usually the pas-
tor's occupation of the parsonage being connected with and in
consideration of his services as pastor does not create the rela-
tion of landlord and tenant, between him and his church.^^ So.
it is held that the relationship which exists between a bishop of
the Roman Catholic church and a priest of his diocese and under
his jurisdiction is that of master and servant. In almost all
cases the priest as a part of his compensation occupies premises
which are owned by the church. He is therefore on the basis of
any other employee or agent of the owner and his possession is
the possession of his employer. The fact that the title of all
the real property occupied by the priest as a parsonage is
vested absolutely in the bishop as an individual, does not alone
establish the relationship of landlord and tenant between the
priest and the bishop. The contract of hiring is usually termin-
able at any time at the election of the bishop and after it is ter-
minated he may treat the priest as an intruder where he holds
over on premises belonging to the bishop. ^^

§ 216. A public officer as a tenant of a county. It is hardly
necessary to say that a public officer holding office under a muni-
cipal or county government is not the tenant of the building oc-
cupied by him in his official capacity. Nor will the fact that
he carries on a private business in connection with the perform-
ance of his official duties make him a tenant of the county and
city in the absence of an express agreement to that effect. Thus,
the register of deeds of a county is not a tenant of the county,
though under his appointment he is entitled to the use and pos-
session of an office in the building owned by the county. The
fact that while thus in possession ofticMally of the building he
carries on a private business does not make him a tenant of the
county nor raise any implied promise on his part to pay rent.
The fact that a person not an official carries on the deputy regis-
ter's private business in the building owned by the county dur-
ing the time the deputy is out of office, together with the fact

12 East Norway, etc., Church v. i" Chatard v. O'Donovau, 80 lad.

Frolslie, 37 Minn. 447, 450, 35 N. 20.
W. Rep. 260.

WHAT CONTRACTS ARE LEASES. 307

that the official paid rent for the building while ho was out of-
fice, does not make him liable for rent after he shall have been
restored to office.^* The relation between a teacher and the pub-
lic officials of a school district by whom he is employed is that
of master and servant. The furnishing of living apartments by
the authorities for the teacher in the school building does not
make him a tenant. Of course, the relation of landlord and ten-
ant may be created under such circumstances by express lan-
guage, but the fact that the occupancy of the school building
enables the teacher to perform his duties more conveniently is a
very strong circumstance to show thi:t tliere was no intent on
the part of either party that there should be a tenancy.^^

§ 217. A servant holding over after his employment is at an
end. This discharge of a servant who has occupied the prem-
ises of the master terminates his right of occupancy. If he is
a servant merely and not a tenant, it would seem that upon the
termination of the hiring he would become a mere trespasser.
It has been held, however, in one or two instances, that having
been in possession lawfully he becomes a tenant at sufferance
when he holds over without the right to do so. But this is true
only where the master or owner of the premises consents that
he shall remain long enough to raise an implication of acqui-
esence in the occupancy.^** If the duration of the employment is
not fixed or certain, it may be terminated by reasonable notice.
On the termination of the employment by notice the tenant who
occupies premises owned by the master ought to have a reason-
able time to remove and would be regarded as a tenant at suffer-
ance.^^

§ 218. The rights of the third parties. "Whether an occupant
of land is a servant of the owner or a tenant is important to de-
termine because of the rights and interests of third parties.
Thus, where a tenant being ' ' a cultivator of the soil ' ' on shares
with the owner has a right to incumber the crop with liens
before its division, it has been held that a mere servant or

1* Board of Supervisors v. Caw- 106 Mich. 330, 64 N. W. Rep. 196;

gill, 97 Mich. 448, 56 N. W. Rep. People v. Annis, 45 Barb. (N. Y.)

849. 304.

15 School District v. Batsche, it Eichengreen v. Appel, 44 111.
106 Mich. 330, 64 N. W. Rep. 196. App. 19.

16 School District v. Batsche,

308 LAW OF LANDLORD AND TKNANT.

employee of the owner cultivating the land on shares as the
agent and not as the tenant of the owner cannot dispose of
or incumber the crops until its division. In determining
whether one is a servant and employee or a tenant, stipulations
in the agreement to the effect that the person who is claimed
to be a servant was to occupy the premises, to keep it in repair,
and that the other party should make advances, are material to
show that he was a tenant. They are in fact utterly inconsis-
tent with the supposition that he was merely an employee.^^ If,
however, the owner of the land has the entire control of the
time and services of the occupant the latter is a servant or
employee and not a tenant and cannot create any lien upon the
crops or productions of the land which will vest any rights in
third persons to the prejudice of the owner.^®

§ 219. The distinction between croppers and tenants. A
cropper is a person who is hired by an owner of land to cultivate
it. He receives as his compensation a share of the crops. Sev-
eral circumstances distinguish such a person from a tenant. In
the first place in the case of a cropper, the landlord retains the
legal right to the possession and the ownership of the crop. The
cropper has no interest whatever in the land or any right to its
possession, except so far as he has a right to be on the land in
order ,to carry out his agreement.-" A cropper's possession is
the possession of a servant. Nor has he any property in his
share of the crops until the division is made between him and
the owner of the land. Hence, he cannot maintain an action in
trespass for an injury to the land, or for damages to the crops
before they are divided. Nor can a mere cropper convey an
interest in his share of the crops, prior to the division.^^ On
the other hand, the relation between a party who cultivates land
under an agreement with the owner of the land that they are to
divide the crops between them may be that of landlord and ten-
ant. If such is the case, the ownership of the crops is in the

iswhaley v. Jacobson, 21 S. Car. 12; Adams v. McKesson's Ex., 53

51. Pa. St. 81, 91 Am. Dec. 183; Mc-

i»Hnff V. Watkins, 15 S. Car. 83. Neely v. Hart, 10 Ired. (N. Car.)

20 Shoemaker v. Crawford, 82 Law, 63; Harrison v. Ricks, 71 N.
Mo. App. 487. Car. 11; Kelly v. Rummerfleld, 117

21 Fry V. Jones, 2 Rawle (Pa.) Wis. 620, 622.

WHAT CONTRACTS ARE LEASES. 309

tenant during the terra, and the landlord has no right or title to
his share until they are har\-ested and divided. Again, where the
occupant is a tenant and not a mere cropper, he has the exclusive
possession of the land during the temi; and the landlord's entry-
is a trespass. It will readily be seen that any an-angemeut to share
crops under which either party owns them until they are actu-
ally divided may work to the disadvantage of the other party
to the agreement. The tenant who agrees with his landlord to
pay the rent in a share of the crops may dispose of them and
abscond with the proceeds; while the landlord who, by an agree-
ment with a cropper retains the actual and absolute ownership
of the crop may oust the cropper and dispose of the crops, leav-
ing the other party to the contract to an action for damages.
To avoid this difficulty a form of contract which is known as
the ' * cultivation of crops on shares, ' ' has been invented in which,
one party supplies the land and the other the labor and material
for using it, and both parties are, regarded £is tenants in com-
mon of the crops until the division is had.-^ By this contract,
both parties are protected and either may dispose of, or encum-
ber his share, but neither can dispose of the share of the other.
It is sometimes difficult to determine whether a person who cul-
tivates the land of another on shares is a tenant in common of
the crop with the owner or a mere cropper. Much depends upon
the wording of the contract between the parties.-^ Each case

22 Smith V. Tankersley, 20 -Ala. N. W. Rep. 701 ; Kamerick v. Cas-

212, 56 Am. Dec. 193; Brown v. tleman, 23 Mo. App. 481; Daniels

Coats, 56 Ala. 439; Smith v. Rice, v. Brown, 34 N. H. 454, 69 Am.

56 Ala. 417; Ponder v. Rhea, 32 Dec. 505; Guest v. Opdyck, 31 N.

Ark. 435; Rohrer v. Babcock, 126 J. Law, 552; Foote v. Colvin, 3

111. 222, 56 Pac. Rep. 537; Smith Johns. (N. Y.) 216; Harrower v.

V. Schultz, 89 Cal. 526, 26 Pac. Heath, 19 Barb. (N. Y.) 331;

Rep. 1087; Randall v. Ditch, 123 Dinehart v. "Wilson, 15 Barb. (N..

Iowa, 58, 99 N. W. Rep. 190, 191; Y.) 595; Wilber v. Sisson, 54 N.

Walker v. Fitts, 24 Pick. (Mass.) Y. 121; Bowers v. Graves, 8 S.

191; Fiquet v. Allison, 12 Mich. Dak. 385, 66 N. W. Rep. 931;

328, 86 Am. Dec. 54; Strangeway Fowles v. Martin, 76 Vt. 180, 56

V. Eisemman, 68 Minn. 395, 71 N. Atl. Rep. 979.

W. Rep. 671; McNeal v. Ryder, 79 =3 Kelly v. Rummerfield, 117

Minn. 152, 81 N. W. Rep. 820; Wis. 620, 622, 94 N. W. 649.
Loomis V. O'Neal, 73 Mich. 582, 41

310 LAW OP LANDLORD AND TENANT.

must bo decided upon the special tenns of the agreement, takino;
into consideration the subject matter and all the circumstances,,
the question being always as to the real intention of the parties.-*
Generally, an arrangement by which one party furnishes the
land and another the labor on an agreement that the crop shall
be divided will not be presumed to create the relation of land-
lord and tenant in the absence of clear evidence to that effect.-*^
If there is an indication that the parties intend that the occu-
pant shall have a right to the possession of the farm and the
full power of controlling and using it for farming purposes as
though it were his own, the contract is a lease. The mere fact
that rent is payable in a share of the crops does not alone show
that the agreement is not a lease.-® So, where an occupant of
land is to pay rent either in money or a portion of the crops,^^
or in money and a portion of the crops,^^ the relation between,
the parties is that of landlord and tenant. The same construc-
tion was applied where the occupant agreed to give the owner
one half of the income of the farm.^^

The circumstance that the lease contained the terms "lease,
demise and let," is a strong fact to show that the instrument
is a lease and not a mere cropping contract.^" But a con-
tract by which each party is to furnish half the seed and to
divide the crops equally and both parties are to reside on the
farm though in separate houses makes the parties tenants in
common of the crop.^^ On the other hand, the fact that nothing
is said as to the duration of llie agreement between the parties
is a strong indication that the relation of landlord and tenant
does not exist.^- So, too, an express stipulation that the crop is
to remain the property of the landlord until it is harvested is

24Moser v. Lower, 48 Mo. 504; 27 Taylor v. Coney, 101 Ga. 655,

Johnson v. Hoffman, 53 Mo. 504. 2S S. E. Rep. 974.

2& Ponder v. Rhea, 32 Ark. 435; 2s Bryant v. Pugh, 86 Ga. 525,

Brown v. Coats, 56 Ala. 439. 21 S. E. Rep. 927.

20 Strain v. Gardner, 61 Wis. 29 Rowland v. Voechting (Wis.),

174; Foley v. Southwestern Land 91 N. W. Rep. 990.

Co., 94 Wis. 329; Steel v. Frick, so Rowland v. Voechting (Wis.),

56 Pa. St. 172; Brown v. .Taquette, 9] N. W. Rep. 990.

94 Pa. St. 113; King v. Bosserman, si Reynolds v. Reynolds, 48 Hun,

13 Super. Ct. 480; McClellan v, 142.

Whiney. 65 Vt. 510, 27 Atl. Rep. S2 Moser v. Lomer, 48 Mo. App.

117. 85.

WHAT CONTRACTS ARE I^ASES

311

usually conclusive that the occupant or cultivator is a mere
cropper.^^

§ 220. The ownership of the crop. The phrase "renting on
shares" implies that both parties will share equally in the prod-
ucts of the land, to compensate the one for his labor and the
other for the use of the land. If the occupant of the land is
more than a mere cropper or servant of the owner, his right in
the crop is usually considered to be vested before division. The
parties may expressly provide that the title to the crop shall
remain in either of them until division. If the contract is clearly
one of landlord and tenant, the general rule applies and title
to the crop is in the tenant. But where the owner and occupant
are to share the crop it is more difficult to determine. Usually
where an agreement is made that one party is to furnish the
land and the other is to furnish the seed and the tools for its
cultivation, together with the necessary labor, the crop to be
divided, the parties will be regarded as tenants in common of the
crop, in the absence of an express agreement to the contrarj'.^*
It follows from this that where owner and occupant are tenants

33 Mammock v. Creelonore, 48
Ark. 264, 3 S. W. Rep. 180. It is
sometimes expressly provided by
statute that the title to crops shall
rfrmain in the owner of the land
where the land is cultivated by a
cropper on shares. De Loach v.
Delk (Ga. 1904), 47 S. E. Rep.
204; Parker v. Brown (N. C. 1904),
48 S. E. Rep. 657. Where this is
the case, a person claiming under
the cropper cannot maintain tro-
ver or conversion against the
owner or against a purchaser
from him, nor can he bring tres-
pass for an entry on the land.
Farrow v. Woley & Jordan (Ala.
1903), 36 So. Rep. 384.

34 Jones V. Durrer, 96 Cal. 95, 30
Pac. Rep. 1027, following Walls v.
Preston, 25 Cal. 59, and Smith v.
Schultz, 89 Cal. 526, 26 Pac. Rep.
1087; Connell v. Richmond, 55
Conn. 401; Kamerick v. Castle-
man, 23 Mo. App. 481; Caswell v.

Di£trich, 15 Wend. (N. Y.) 379;
Putnam v. Wise, 1 Hill (N. Y.)
234; narrower v. Heath, 19 Barb.
(N. Y.) 331; Wilber v. Sisson, 54
N. Y. 121, 53 Barb. (N. Y.) 258;
Randall v. Ditch, 123 Iowa, 582,
99 N. W. Rep. 190, 191; Strange-
way V. Eisenman, 68 Minn. 395,

71 N. W. 671; Anderson v. Listen,

72 N. W. Rep. 52; Adams v. State,
87 Ala. 89, 6 So. Rep. 270; Mc-
Neal V. Ryder, 79 Minn. 152, 81
N. W. Rep. 830; Rohrer v. Bab-
cock, 126 Cal. 222, 58 Pac. Rep.
537; Loomis v. O'Neal, 73 Mich.
582, 41 N. W. Rep. 701; Doty v.
Heth, 52 Miss. 530, 535; Frost v.
Kellogg, 23 Vt. 308; Leach v. Beat-
tie, 33 Vt. 195; Sowles v. Martin,
76 Vt. ISO, 56 Atl. Rep. 979; Black
V. Golden, 109 Mo. App. 37, 78 S.
W. Rep. 301, 302; Bernal v. Hovl-
ous, 15 Cal. 544; Putnam v. Wise,
37 Am. Dec. 309.

312 LxVW OF LANDLOED AND TENANT.

in common of the crop each has a distinct interest which is not
subject to the ownership or control of the other and cannot be in-
cumbered hy the other.^^ Either party to the agreement may
sell his share by parol.^® A person cultivating land for a share
of the crop, may mortgage his interest in the crop before it is
divided.^" A direction by the owner to pay the rent to another
is an assignment of the owner 's share of the crops. The owner 's
share thus assigned cannot be subsequently reached by the levy
of an execution against him.^^ And under the rule that the
abandonment of work on the farm by the occupant is a breach
of the contract, a cropper loses his interest in the crop where by
reason of his abandonment or failure to perform his contract
the landlord is compelled to enter and cultivate the farm and
reap the crop. Wliile ordinarily the parties to the agreement
to work land on shares are presumed to be tenants in common
of the crop it is competent for them to arrange for another basis
of ownership. They may, for example, expressly agree that
the crops which are to be planted and raised on the farm by the
person cultivating it are to remain the sole property of the owaier
of the land until the contract is fully performed, or until a
division of the crops provided for in the contract shall have taken
place, or until a certain specified date shall arrive, or until some
other contingency shall take place. Conditions that the crops
raised shall continue to be the property of the owner of the land
until they shall be divided, are very frequently met with and no
reason can be suggested why such a stipulation is not valid and
binding.^^ And the general rule that a tenant under a lease to
rent land on shares may assign his lease, or sell or mortgage his

35 stickney V. Stickney, 77 Iowa, Vt. G32; Wentworth v. Miller, 53

699, 42 N. W. Rep. 518. Cal. 9; Lloyd v. Powers, 4 Dak.

3c Muernberger V. Von Der Heidt, 62, 23 N. W. Rep. 492; Moulton

39 111. App. 404. V. Robinson, 27 N. H. 550; Parker

87 Bourland v. McKnlght, 79 v. Matt, 43 App. Div. 338, 60 N. Y.

Ark. 427, 96 S. W. Rep. 179. Supp. 295; Consolidated Land, etc.,

38 Courtney v. Lyndon, 128 Cal. Co. v. Hawley, 7 S. Dak. 229, 63

35, 60 Pac. Rep. 462. N. W. Rep. 904; Townsend v. Isen-

3» Sanford v. Morline, 51 Neb. berg, 45 Iowa, 670; Gray v. Rob-

728, 71 N. W. Rep. 740, 742; Yates inson (Ariz.), 33 Pac. Rep. 712;

V. Kinney, 19 Neb. 275, 27 N. W. Jordan v. Bryan, 103 N. Car. 59, 9

Rep. 132; Sumnierville v. Stock- S. E. Rep. 135; Taylor v. Dono-

ton M. Co.. 1 Cal. 1904. 76 Pac. hue (Wis. 1905), 103 N. W. Rep.'

Rep. 243; Esdon v. Colburn, 29 1099.

WHAT CONTRACTS AEB LEASES 313

share of the crops which he has raised on the demised premises
without the consent of his lessor unless expressly forbidden by
the lease does not apply to such a case until the moment arrives
for a division of the crops for until that moment the title of the
tenant is incomplete and he may do nothing which would inter-
fere with the complete ownership of the landlord.*" So, under a
provision that the landlord is to have the possession of the crops
until complete performance by the tenant the tenant has no in-
terest in the crop which can be attached until he has fully per-
formed his contract and the crop is ready for division.*^ On the
other hand, in every case where by agreement or under the
statute the share of the landlord in the crop is not vested until
the time has arrived for its division he cannot maintain any
action against the tenant either for liis rent or for a share of
the crop/^

§ 221. The duties and the rights of the landlord and tenant.
There is an implied covenant on the part of the tenant who cul-
tivates land on shares to cultivate it in a farmerlike manner.*^
lie must also give the fences and other structures on the prop-
erty, ordinary care. He cannot charge for the storage of the
share of the crop belonging to the landlord unless the latter un-
reasonably delays the moving of it.** A landlord who objects to
the manner in which a tenant on shares is cultivating the land
should do so promptly. An objection after the crop has been
reaped amounts to nothing.*^ Usually, where the occupant is a
servant or cropper only there may be circumstances which indi-
cate that the owner hired the particular occupant because of his
ability and skill. The owner is entitled to have the farm culti-
vated by the person he has selected and the latter cannot assign
his contract without the consent of the owner. ^^ If the occupant
without cause abandons the land, the landlord may re-enter and
complete the cultivation of the crop. He may then sell the crop

*o Sanford v. Modine, 71 N. W. ** Evers v. Shumacker, 59 Mo.

Rep. 740, 51 Neb. 728. App. 454.

*i Pelton V. Draper, 61 Vt. 364, *5 Young v. Gay, 41 La. Ann.

17 Atl. Rep. 494. 758, 6 So. Rep. 608.

42 Jordan v. Bryan, 103 N. Car. ■*« Meyer v. Livesley (Oreg.), 78
59, 9 S. E. Rep. 135. Pac. Rep. 670, where the occupant

43 Cammack v. Rogers (Tex. was a tenant.
Civ. App.), 74 S. W. Rep. 945

314 LAW OF LANDLORD AND TENANT.

and deduct his expenses from tlie cropper's share.^^ But the
landlord has no right as long as the tenant is in possession to
enter on the land where is appears that the relation between the
parties is that of landlord and tenant.*^ If being a tenant the
cultivator abandons the land the landlord may re-enter. But
whether the tenant abandons the land is in all cases a question
of fact. The act of the tenant in merely removing the furniture
from the farmhouse is not in itself an abandonment which will
allow the o^vner to take possession.*^ The obligation of the oc-
cupant of land cultivated on shares which binds him to cultivate
the farm in a husbandlike manner cannot be escaped from be-
cause, by reason of the failure of the crops, it becomes difficult
and expensive to reap a certain portion of them.^'* The tenant
cannot abandon the land for that reason, but he may abandon
the land and refuse to reap the crop if he can show that the land-
lord has prevented him from doing so.^^ Thus, where the owner
of land cultivated on shares becomes very abusive and insulting
to the tenant the occupant may abandon the land and the con-
duct of the owner is a breach of the implied covenant of quiet
enjoyment. Under such circumstances the abandonment of the
land by the tenant does not deprive him of his right to a share of
the crops.^- And a landlord who has prevented his tenant from
gathering the crops to a share of which he was entitled, cannot
recover against the tenant the expense of gathering his own
share.^^ The tenant while in possession after the end of his term
is not liable for trespass where the purpose of liis possession, was
the reaping of a crop.^*

47 Graves v. Walter (Minn. 398. Where a tenant plants a crop

1904), 101 N. W. Rep. 297. and then voluntarily abandons

■*8Kamerick v. Castleman, 23 the farm he can no longer claim

Mo. App. 481. any rights under the contract.

49 Hough V. Brown, 104 Mich. Having repudiated the contract,

109, 62 N. W. Rep. 143. he cannot claim his share of the

!■•(> .Johnson v. Bryant, 61 Ark. crops. He might abandon the

312, 32 S. W. Rep. 1081. farm and throw up his contract

51 Parker v. Mott, 43 App. Div. the next day after sowing the

338, 60 N. Y. Supp. 295. wheat. On his abandonment, the

^2 Reynolds v. Reynolds, 48 Hun, wheat became a part of the land.

(N. Y.) 142. It might be otherwise where he

B3 Garrett v. .Jennings, 19 Ky. S. sows a crop, sells to a purchaser

Rep. 1712, 44 S. W. Rep. 382. in good faith and then abandons.

54Toles V. Meddaugh, 106 Mich. Chandler v. Thurston, 10 Pick.

WHAT CONTRACTS ABB LEASES. 315

§ 222. The remedies of the parties. The remedies of the
parties to an agreement to cultivate land on shares depend upon
the question whether the title to the crops is in both of them
or whether it is in the landlord only. The tenant or cropper
who has faithfully performed his contract^ is entitled to his
share of the crops when it is reaped and ready for market and
the landlord who converts it and refuses to pay over any part
of it to the tenant may be sued in conversion.^^ So, where the
tenant has mortgaged his interest in the crop and conferred au-
thority upon the mortgagee to take possession, the latter may
replevin from the landlord the tenant's share of the crop.^® If,
according to the contract the parties are tenants in common to
the crop either may sue the other in conversion before the end of
the term.^^ So, also, where an occupant cultivating land on
shares, converts the whole crop the landlord may sue in an action
of assumpsit and recover the reasonable value of the use of the
premises.^^ The landlord cannot maintain an action for conver-
sion or a similar action against a tenant while his possession of
the crop is only such as is necessary for its cultivation, and the
tenant does not assert any exclusive ownership or right to the
possession of the whole crop.^® The tenant who is a tenant in
common of the crop so far as third persons are concerned has the
same right to recover for injuries to the crop as he would have
if he owned the whole of it. He may recover for damages to his
share of the crop resulting from the action of the third person,
though his landlord may have a lien for supplies and advances
on his share. His right to recover the dama^-es is not defeated
by the fact that he is bound to pay these debts out of his share
of the proceeds of the crop.''" It is within the power and jurisdic-
tion of a court of cquty to adjust the rights of a landlord and

205; Kiplinger v. Green, 28 N. W. 80 S. W. Rep. 664; Black v. Gol-

Rep. 121, 61 Mich. 340; Carpenter den, 104 Mo. App. 37, 78 S. W.

V. Jones, 63 111. 517. Rep. 301, 302.

55 Northness v. Hillstead, 87 ss Pearce v. Pearce, 184 111. 289,
Minn. 304, 91 N. W. Rep. 1112; 56 N. E. Rep. 311, affirming 83 111.
Parker v. Brown, 136 N. Car. 280, App. 77.

48 S. E. Rep. 657; Marlowe v. Rog- »» Olson v. Ausdal, 13 So. Dak.

ers, 102 Ala. 510, 14 So. Rep. 790. 23, 82 N. W. Rep. 89.

56 Alexander v. Zeigler (Miss.), eo Parker v. Hale (Tex. 1903),
36 So. 536. 78 S. W. Rep. 555

57Fagan v. Vogt (Tex. 1904),

316 LAW OP LANDLORD AND TENANT

tenant who are tenants in common of farm products where the
farm has been rented on shares. If the tenant disposes of the
produce of the farm he holds the share of the landlord as a
trustee and he must account accordingly. The fact that by an.
express agreement the landlord is to have a lien upon the entire
product of the farm for advances and for his share does not
alter the relations of the parties. Any title which the landlord
might have under such a stipulation is equitable and for security
only and if the landlord assumes to sell the products he must ac-
count to the tenant as an owner of an equal share. No matter
which party disposes of the products of the farm an accounting
may be had in equity because of the relation of trust which exists
between them. If both parties have sold to a third person hav-
ing knowledge of their mutual rights and obligations and the
third person pays the whole proceeds to either, he is a proper
party to an action brought by either of the tenants in common
against the other for an accounting and he may be liable in case
he has caused a loss to either by paying the wrong person."^

§ 223. Relation of landlord and servant not presumed be-
tween vendor and vendee. One who purchases land is not, in
the absence of a stipulation to that effect, entitled to possession
until the date which is designated in the contract upon which a
conveyance is to be made. If with the consent of the vendor,
the vendee goes into possession before the date for a conveyance
arrives he acquires no right to possession thereby and the vendor
may recover possession by an ejectment after demand. The
entry of the vendee upon the land under the contract to purchase
before conveyance and with the consent of the vendor does not

«i Sowles V. Martin, 76 Vt. 180, but before it is harvested, suc-

56 All. Rep. 979. The owner may, ceeds to his rights. He may re-

when he can show that there is cover from the owner of the land

imminent danger of the cropper in a quantum meruit the reason-

or tenant converting the crops to able value of the cropper's share

his own use, apply to a court of of the crop. Parker v. Brown (N.

equity for a partition and the ap- Car. 1904), 48 S. E. Rep. 657. A

pointment of a receiver during the landlord who is entitled to an at-

pendency of the action. Baugh- tnchment for rent may attach

man v. Reed, 75 Cal. 319, 17 Pac. crops in case his rent is payable

Rep. 222. The personal repre- in a share of the crops. Harmon

sfntative of a cropper or tenant v. Payton (Kan. 1903), 74 Pac.

who dies after the crop is grown, Rep. 618

WHAT CONTRACTS ABB LEASEa 317

make the vendee a tenant of the vendor or create the relation
of landlord and tenant between the vendor and vendee, except
perhaps from the date when there is a default in the payment
of the purchase money. The vendee enters and holds for him-
self and his title is not subordinate to that of the vendor nor
can the latter recover rent from him or for the use and occupa-
tion of the premises.®^ From these principles it follows that
where one is let in possession of land under an oral contract of
sale, he is not liable to the vendor for rent or for damages for
use and occupation until the contract is repudiated because such
liability only arises on a contract express or implied and pre-
supposes the relation of landlord and tenant. The fact alone
that one takes possession as a vendee disproves any implied con-
tract to pay rent, or to pay for use and occupation. If the con-
tract had been void for any reason the vendee would then be-
come a tenant at will or at sufferance and liable for use and oc-
cupation. It is perfectly proper for a vendor whose land is
sold on credit to stipulate with the vendee, that the relation of
landlord and tenant shall exist and that the vendee shall enter
with such an understanding. Until the vendee shall pay for the
land he is a tenant and the vendor may treat him as such upon
a failure to pay his instalments. There is nothing oppressive
in this so long as the rent is applied to the payment of the pur-
chase money. Such contracts are common where land is sold
on credit, and, as they are just and fair to all parties, will not

82 Bull V. Ellis, 1 Stew. & P. Ralston, 31 Barb. (N. Y.) 286;
(Ala.) 294; Tucker v. Adams, 52 Stone v. Sprague, 20^ Barb. (N.
Ala. 254; Smith v. Maberry, 61 Y.) 509; Little v. Pearson, 7 Pick.
Ark. 375, 33 S. W. Rep. 1068; Van- (Mass.) 301, 302; De Pere Co. v.
derheuvel v. Starrs, 3 Conn. 303; Raynor, 65 Wis. 271, 22 N. W. Rep.
Redden v. Barker, 4 Har. (Del.) 761, 27 N. W. Rep. 155; Carpenter
179; Brown v. Persons, 48 Ga. 60; v. United States, 17 Wall. (U. S.)
Miles V. Elkin, 10 Ind. 329, 330; 489, 21 Law. ed. 680; Watkins v.
Kratemeyer v. Brink, 17 Ind. 509, Holman, 16 Pet. (U. S.) 26, 10
511; Fall v. Hazelrigg, 45 Ind. Law. ed. 873; Bradstreet v. Hunt-
576, 15 Am. Rep. 278; Gould v. ington, 5 Pet. (U. S.) 402; Willson
Thompson, 4 Met. (Mass.) 224, v. Watkins, 3 Pet. (U. S.) 43;
228; Lapham v. Norton, 71 Me. Blight v. Rochester, 7 Wheat U.
83, 88; Coffman v. Huck, 19 Mo. S.) 453. Contra, Kirk v. Taylor's
435; Kenada v. Gardner, 3 Barb. Heirs, 8 B. Mon. (Ky.) 62; Pro-
(N. Y.) 5-89; Smith v. Stewart, 6 prietors of Township No. 6 v. Mo-
John. (N. Y.) 46; Sylvester v. Farland. 12 Mass. 325.

318 LAW OF LANDLORD AND TENANT

be interfered with by the courts.*'^ On the failure of the vendee
to pay rent his rights are forfeited and he will lose what he has
paid as rent unless some provision to the contrary is made. He
has no interest after his default which can be sold under an
execution.*^*

§ 224. The default or the refusal of either party to perform.
The question whether a vendee in possession is a tenant of the
vendor and thus is liable for rent or in assumpsit for use and
occupation, almost always arises where either by a refusal of
the vendee to pay or by a refusal of the vendor to convey the
contract is never performed. The majority of the cases in de-
termining that there is no liability for rent on the vendee do not
stop to inquire whether the failure to perform the contract is
the fault of the vendor or the vendee. If the contract of sale is
voluntarily rescinded by the parties, either waives all the de-
fault on the part of the other.®^ If the vendor is in default in
conveying when the date arrives when under the contract he
is bound to give a deed, he cannot complain that the vendee has
had the use of the land gratis with his consent. In justice and
fairness to the vendee, the loss of the land through the action of
the vendor in refusing to consummate the contract ought to
estop the vendor from demanding compensation for its use
aside from the rule of law which determines that the relation
of landlord and tenant never existed between the parties in the
absence of an express contract to that effect.®'' Thus if, after
a vendee has occupied the land sold him, the vendor is unable
to convey because he cannot give a good title, or cannot give one
which is free from incumbrances, the vendee is under no obli-

«3Crinkley v. Edgerton, 113 N. Huck, 24 Mo. 496; Sylvester v.

Car. 444, 449, 18 S. E. Rep. 669. Ralston, 31 Barb. (N. Y.) 286;

64 Appeal of Chrystie, 85 Pa. St. Way v. Raymond, 16 Vt. 371, 376;
463. Smith v. Stewart, 6 Johns. (N. Y.)

65 Mariner v. Burton, 4 Har. 46; Stacy v. Vermont Cent. R. Co.,
(Del.) 69. 32 Vl. 551, 553; Hough v. Birge,

66 Bell V. Ellis' Heirs, 1 Stew. 11 Vt. 190. Assumpsit for use and
& P. (Ala.) 294; Vanderheuvel v. occupation cannot be maintained
Storrs, 3 Conn. 203; Garvin v. (Jones v. Tipton, 2 Dana (Ky.)
Jennorson, 20 Kan. 371, 372; .Jones 295; Stacy v. Vermont Central R.
V. Tipton, 2 Dana (Ky.) 295; Lit- Co., 32 Vt. 551, 553, though the
tie V. Pearson, 7 Pick. (Mass.) vendee alone is ajt fault. McNair
301, 19 Am. Dec. 289; Coffman v. v. Schwartz, 16 111. 24, 25.

WHAT CONTRACTS ARE LEASES. 319

gation to pay for .use and occupation prior thereto."^ The ven-
dee should immediately surrender possession on the rescission
or abandonment of the contract of sale, for, if he shall continue
in possession after a rescission, or after the vendor has defaulted
in the performance of the contract, he will be liable as a tenant
to the vendor from the date of the default.®* Some authorities
have held that a vendee who goes into possession under a con-
tract of sale will be liable to pay the rent or for the use and
occupation of the premises, though there be no express agree-
ment to that effect, where he subsequently fails to pay the pur-
chase money. He is a tenant at will and, as the use of the prem-
ises has been beneficial to him, and the vendor is ready and will-
ing to perform^ in order to do justice between the parties, the
law, it is said, will imply a promise on the part of the vendee
to pay what is right in case he is unable to pay the purchase
money when it is due.®^ The parties may stipulate in the con-
tract of sale that in case the vendee shall default in the pay-
ment of the whole or of any part of the purchase money aftor
he has been in possession^ he shall thereafter be regarded as a
tenant and that what he has paid, if anything, shall be regarded
as rent.^" Upon the vendee's default, but not before, he be-
comes a tenant of the vendor and the contract of sale is then
transformed at once into a lease, the vendor thereafter having
all the rights of a landlord as regards the vendee.'^

§ 225. The express agreement of the vendee to pay rent. It
is always competent for the parties to a contract for the sale of
land to provide that the vendee shall enter before a conveyance

67 Garvin v. Jennerson, 20 Kan. 64 Am. Dec. 10.5, where the vendor
371; Bardsley's Appeal (Pa. 1887), failed to tender a proper deed.
10 Atl. Rep. 39. The parties may, «» Patterson v. Stoddard, 47 Me.
upon the rescission of the contract 355, 356, 74 Am. Dec. 490; Fowke
of sale, agree that the vendee v. Beck, 1 Speers (S. C.) 291.
shall pay rent as a tenant for his 7o ish v. McRae. 48 Ark. 413, 3
prior occupation of the premises. S. W. Rep. 440 (agreement to pay
Such a contract is based on a good "customary rent" on the vendee's
consideration, and gives the ven- default). See, also. Hill v. Sidie,
dor all the right of a landlord, in- 116 Wis. 602, 93 N. W. Rep. 446.
eluding a lien against the vendee. ti Block v. Smith, 61 Ark. 266,
Powell V. Hadden's Ex'rs, 21 Ala. 32 S. W. Rep. 1070; Oxford v. Ford,
745. 67 Ga. 362. See Foster v. Good-

68 Dwlght V. Cutler, 3 Mich. 566, win, 82 Ala. 384, 2 So. Rep. 895

320 LAW OF LANDLORD AND TENANT

to ]iim and shall hold as a tenant of the vendor. Thus, the rela-
tion of landlord and tenant exists where the vendee agrees to
pay the vendor a sum of money for rent for the use of the prem-
ises before conveyance, if he shall default in paying the pur-
chase price.'^^ The same construction is given to a contract of
sale which provides that if either of the parties do not consum-
mate the sale, the money which has been paid on the purchase
shall be regarded as rent/^ If there is an express agreement by
the vendee in possession to pay rent until he takes title,'^* or to
pay rent until a certain amount is paid by the vendee, upon
Avhich the land is to be conveyed by the vendor, the relation of
the parties is that of landlord and tenant.''^ The vendee in
possession at once becomes the tenant of the vendor where he
fails to pay the first instalment of the price, where there is a
provision in the contract of sale that on a default he shall pay
rent.''® But there is no presumption in the absence of a clear
understanding to that effect that upon the default of the ven-
dee in possession to pay rent, he shall thereupon become a ten-
ant of the vendor. The fact that a note which is given for a
portion of the purchase money contains a statement that it is
for rent will not alone create any presumption that the relation
of landlord and tenant existed between the parties.''^ But the
fact that a contract of sale speaks of a part of the consideration
to be paid by the vendee in possession as rent does not neces-
sarily transform it into a lease.''^ If the vendee is let into pos-
session, under an a^eement by him to pay the purchase money
at a future date, and to pay rent in the meantime, the rent is
obviously more in the nature of interest on the purchase money
than rent and, as the relation of landlord and tenant does not

72 Foster v. Goodwin, 82 Ala. 456, 458. See Nestal v. Schmid,
384, 2 So. Rep. 895. Compare 39 N. J. Law, 686.

contra. Green v. Deitrich, 114 111. 70 Block v. Smith, 61 Ark. 266,

G36, 642, 3 N. E. Rep. 800, in which 32 S. W. Rep. 1070; Chambers v.

the language of the contract was Irish (Iowa, 1906), 109 N. W. Rep.

very peculiar. 787.

73 Barrett v. Johnson, 2 Ind. 7? Quetermous t. Hatfield, 54
App. 25, 27 N. E. Rep. 983. Ark. 16. 14 S. W. Rep. 1096; Wal-

74 Jackson v. Niven, 10 Johns. ters v. Myer & Co., 39 Ark. 560.
(N. Y.) 335. 78 Smith v. Mabory, 61 Ark. 515,

7r. Nobles V. McCarty, CI Miss. 33 S. W. Rep. 10G8.

WHAT CONTRACTS ARE LEi^ES. 321

exist, the party to whom it is due cannot collect it by any of
the usual methods for collecting rent."^ So, also, an agreement
between the vendor and the vendee that the purchase money,
which is to be paid in instalments, may be collected by the ven-
dor, as they become due, by distress or otherwise, does not alone
create the relation of landlord and tenant.^" A vendee who goes
into possession with the consent of the vendor under an agree-
ment with the latter that he will pay him interest on the pur-
chase money at so much per annum while he is in possession be-
fore conveyance and a fortion after conveyance does not by
that fact alone become a yearly tenant. He may, however, be
regarded as a tenant at will and on the rescission of the con-
tract because he fails to pay the interest or the purchase money
he may be ousted on an entry or demand of possession. For
the payment of interest under such circumstances, though yearly,
is not for the use of the land but for the forbearance of the
vendor in waiting for the money. But where a yearly payment
other than interest is made which is to go to the vendor as rent
in case the contract of sale is not consummated, but which is to
apply to the purchase price if the vendee takes a conveyance, a
tenancy from year to year is created.*"^ If the facts proved are
such that, taken with the express language of the contract, it ap-
pears that the relation between the vendee in possession and his
vendor is that of landlord and tenant, the vendor has the same
remedies against his vendee as a landlord will have against a ten-
ant. The vendor may then enforce a landlord 's statutory lien for
rent on the crops grown by his vendee while he was in possession
of the premises.^- Under such circumstances, the lien of the
vendor for rent is superior to that of the chattel mortgagee or

79 Walters v. Myer & Co., 39 Ark. "so much as the one-half of all

560, 567; Bissell v. Erwin's Heirs, crops on said land shall amount

10 La. 524; Quetermous v. Hat- to." Moen v. Lillestal, 5 N. D. 327,

field, 54 Ark. 16, 14 S. W. Rep. 65 N. W. Rep. 694.
1096. 81 Saunders v. Musgrave, 6 B.

«oSackettv. Barnum, 22 Wend. & C. 524; Parton v. Smith, 66

(N. Y.) 605. The same ruling was Iowa, 75; Eaton v. Hunt, 20 Ky.

had where the vendee in posses- Law Rep. 860. 47 S. W. Rep. 763.
sion of land which sold on long 82 Waite v. Corbin, 109 Ala. 154,

credit was bound to pay each year, 19 So. Rep. 505.
in addition to the purchase price,

21

322 LAW OF LANDLORD AND TENANT.

judgment creditor of a vendee who is in possession of the land
a^ a tenant.*^

§ 226. The entry of vendee under a parol agreement to pur-
chase. A purchaser under a void parol contract to purchase
who is put in possession of the premises by the vendor is not
liable for the rent until his right to enforce the contract shall
have been denied by the vendor. So long as he holds posses-
sion with the consent of the vendor, his right to the profits and
rent will be presumed.^* A parol contract of sale under which
the vendee has entered may be valid as a lease though unen-
forcible as a contract to convey.^^ The general rule in all cases
of an entry by the vendee under a parol contract to sell land is
that the relation of landlord and tenant does not exist between
him and the vendor. The vendee in possession is not therefore
estopped to dispute the vendor's title.^*^ nor is he on the other
hand, entitled as a tenant to a notice to quit.^"^

§ 227. The vendor of land continuing in possession after
his conveyance of the title. The mere fact taken alone that the
vendor retains the possession of the land after he has conveyed
title to the vendee, does not, it has been held, create by implica-
tion, the relationship of landlord and tenant between the parties
to the contract of sale so as to give the vendee the right to re-
cover from the vendor for the use and occupation of the land.*'^
There are, however, many cases which hold to the contrary and
the weight of the authorities is directly opposed to this rule.
So, it has been held several times that the remaining in the pos-
session of the land by the vendor after the conveyance of the title
by him alone raises a presumption that he continues in posses-
sion as a tenant of the vendee.^ However, this presumption is

83 Reddick v. Hutchinson, 94 Ga. sea Chilton v. Niblett, 3 Humph.
675, 21 S. E. Rep. 712. (Tenn.) 404.

84 Fox V. Longley, 1 A. K. Marsh. «7 Greenup v. Veruer, 16 111. 26,
(Ky.) 388; Kay v. Curd, 6 B. Mon. 27; Tew v. Jones, 13 M. & W. 12.
(Ky.) 100. ssprichard v. Tabor, 104 Ga.

BoVick V. Ayres, 56 Miss. 670, 64, 30 S. E. Rep. 415; Sherebourne

in which the vendee expressly v. .Tones, 20 Me. 70; Larrabee v.

agreed to pay rent if he should Lumbert, 34 Me. 79, 80, 81; Hyatt

not pay the purchase money in v Wood, 4 Johns. (N. Y.) 150, 4

one year. Am. Dec. 258; Wood v. Hyatt, 4

8« Hough V. Dumas, 4 Dev. & Johns. (N. Y.) 313; Hodges y.

Bat. L. (N. C.) 328. Gates, 9 Vt. 17

WHAT CONTRACTS ARE LEASES. 323

always rebuttable by proof of facts which show or tend to show
an intention that the relation of landlord and tenant shall not
exist between the parties. Thus, for example, the vendor con-
tinuing in possession after his conveyance will be permitted to
prove that his deed, though it was an absolute conveyance upon
its face, was in fact given to secure his debt; that the creditor
or grantee in the deed had refused to give a bond to re-convey
the property, and that the debt had been paid and that hence
there should be a re-conveyance.*'

83 Larrabee v. Lumbert, 34 Me. 79, 81; McCormick r. Herndon, 26 "Wis.
449.

CHAPTER X.

THE FOPJM AND EXECUTION OF LEASES.

228. The scope of this chapter.

229. The formal requisites of a lease

230. General rules of the law of contracts as to signatures.

231. The signature to a lease by the tenant only.

232. The signature by the lessor only.

233. The signature to a lease affixed by a surety.

234. The necessity for and the form of seals.

235. The attestation of leases.

236. The necessity for an acknowledgment.

237. The description of the premises.

238. The description of the parties.

239. The date of the lease.

240. The date of the commencement of the term,

241. The necessity of the delivery of the lease.

242. The acceptance of a lease.

243. The necessity for the entry of the tenant.

244. The date upon which the lease expires.

245. The reversion in the lessor.

246. The approval of the lease by the attorneys for the parties.

247. The responsibility of the tenant.

248. A failure to read the lease.

249. A mistake in the execution of a lease.

250. The usual and customary covenants and provisions.

251. Leases executed in duplicate and counterpart.

252. The mode of proving a written lease.

253. Term expiring on the happening of a contingent event.

254. Leases terminable on the sale of the premises.

255. The option of the lessee to terminate the lease.

256. Measure of the damages for a failure to execute a lease.

257. The effect of the statute of frauds on leases.

258. Contracts concerning an interest in land.

259. Extensions and renewals of leases.

260. Leases by parol which are void under the statute.

261. The character of the writing.

262. Effect of performances in taking the lease out of the statute.

263. The recording of leases.

264. The construction of the statutes requiring the record of leases.

265. The effect of recording a lease upon the rights of a subsequent

lessee.

FORM AND EXECUTION OF LEASES. 325

§ 266. The effect of the record as notice.

267. As against the creditors of the lessor and persons claiming

under him.

268. The effect of recording a lease which is not required to be re-

corded.

§ 228. Scope of tnis chapter. In this chapter it is proposed
to treat of the execution of a formally written lease. Under
the heading of execution will be discussed the signing, sealing,
attestation, delivery and acceptance of the writing. Inasmuch
as a lease in writing is merely a contract in writing for the use
of the parties concerned, the rules regulating the execution of
written contracts are usually to be applied where the execution
of a written lease is under consideration. The case therefore
that applies to the execution of written contracts generally may
safely be consulted and cited in all questions involving the form
and execution of written leases. ^lany such cases have been
cited in the notes which are appended to the text of this chap-
ter,

§ 229. The formal requisites of a lease. There are certain
elements which must exist in every case in order that a writing
shall constitute a valid lease. First, there must be a lessor who
is competent to make a lease, that is to say, the lessor must have
the same capacity to contract in writing which is usually re-
quired in other cases. The capacity of the lessor to make a lease
will be determined by the same rules which are recognized in
the case of all other written contracts. Second, there must be a
lessee w^ho is capable to contract with the lessor. The same
rules which are used to determine the capacity of the lessor will
be implied to determine the capacity of the lessee. Third, there
must be a subject matter which is capable of being leased.
Usually, the subject of a lease is land or other things, and arti-
cles of property of a real or personal nature. Fmirih, if, by
statute, the lease is required to be by deed, the execution, de-
livery, etc., of the deed must conform to the rules which regulate
the execution and delivery of deeds, that is to say, the writing
must be sealed; must contain a definite and certain description
of the parties and of the things demised; must be sealed and
delivered, and, in certain cases, it must be acknowledged and
recorded. Fifth, where a term of years is created by a lease,
the term must have a fixed commencement and must be definite

326 LAW OP LANDLORD AND TENANT.

in length. This need not be expressly stated in the writing but
is permitted to be ascertained by parol evidence. Thus, as is
subsequently explained, the term may be for a fixed number of
years or may be for a term not stated in years, but determinable
by the happening of some contingent event. Sixth, at the com-
mon law where the lease was for a freehold, livery of seizin was
required and where the lease was for a term of years, an attorn-
ment was indispensable but these ceremonies have been abolished
for many years, and. in the United States at least, are not re-
quisite in the case of leases. Seventh, there must usually be an
acceptance of the term by the lessee.

§ 230. General rules of the law of contracts as to signatures.
Aside from the special topic of leases, it is the rule in the case
of a contract which is not required to be signed by the party
to be charged under the statute of frauds, that the mere fact
that a party to the contract has not signed it, does not exempt
him from liability under it where he has received a benefit from
it.^ The case is much stronger against a party where his name
appears in the body of the contract, as being a party to it.
Even if his name does not appear in the contract, if it appears
that he knew of its terms and acted in accordance therewith he
will be liable. The circumstance that the contract is in his
writing, together with the appearance of his name in it is al-
most conclusive against him.^ These rules of the general law
of contract as sustained by the cases which are cited in the notes
are all of value in connection with the construction of leases.
Thus, a lease made in writing which is not required by the stat-
ute of frauds to be in writing, is binding on a party to it, though
he has not signed it, if he shall, being the landlord, receive the
rent under it, or being the tenant, he shall enter upon the
occupation of the premises.^ For it is a general rule which is

1 Henry v. Allen, 49 Ark. 122, Claflin v. Hoover, 20 Mo. App. 5S3;

4 S. W. Rep. 201; Kieth v. Kerr, Hinsaman v. Hinsaman, 52 N. C.

17 Ind. 284; Smith v. Morse, 20 La. f-lO.

Ann. 220; Jeffry v. Underwood, 1 2 Xoe v.' Hodges, 22 Tenn. 162;

Ark. 108; Pennington v. Baehr, 48 Young v. Paul, 10 N. J. Eq. 401,

Cal. 565; Curds v. Forts, 9 Ky. 43; 64 Am. Dec. 456.

Basham v. Commonwealth, 76 Ky. 3 Magoon v. Minnesota Transfer

36; Gable v. Brooks, 48 Md. 108; Packing Co., 34 Minn. 434, 26 N.

Rundell v. La Fkur, 88 Mass. 480; W. Rep. 235.
Dodd V. Butler, 7 Mo. App. 583;

FORM AND EXECUTION OF LEASES. 327

of particular value in connection with leases, that a contract
which is intended to be signed by both parties but is only
signed by one of them becomes in all respects binding upon
the other who accepts it by his conduct in deriving a benefit
from it with knowledge of its existence.* The requirement of
the statute of frauds that a lease shall be signed by the party
to be charged, is satisfied if the lessee's or lessor's name writ-
ten by himself, appears in any part of the lease, particularly
in the clause containing the usual description of the parties.*
Wbere a lease is executed by two parties, and it is retained by
the lessor to have it also executed by his wife, who subsequently
refuses to sign it, and a third person in ignorance of the lease,
purchases the farm as a result of which the unexecuted lease
was destroyed, the lease itself is void for lack of mutuality."

§ 231. The signature to a lease by the tenant only. "Where
the statute of frauds requires the lease to be in writing, a lease
signed by the lessor only, if accepted and possession taken under
it by the lessee against the lessor, is good.'^ A lease signed by the
tenant only, if not accepted or ratified by the landlord in writing,
is not binding on the tenant and the landlord cannot sue and
recover upon the covenant to pay rent therein contained.* If the

* Reedy v. Smith, 42 Cal. 245; accept it without execution by the

Bell V. ByersoD, 11 Iowa, 233, 77 wife; neither could the lessor

Am. Dec. 142; Dows v. Morse, 62 have been compelled to deliver it —

Iowa, 231, 17 N. W. Rep. 495; Fair- it must be mutually binding on

banks v. Meyers, 98 Ind. 92; Young both parties or neither. The

V. Ward, 33 Me. 359; GriflSn v. lessor had a perfect right, when

Bristol, 39 Minn. 456, 40 N. W. his wife refused to execute the

Rep. 523; Berner v. Bagnell, 20 lease to cancel and destroy the im-

Mo. App. 543; Dutch v. Mead, 36 strument — if the lease had been

N. Y. Super. Ct. 427; Reynolds v. a valid and subsisting lease, com-

Welsh, 8 N. Y. St. Rep. 404; plete by delivery, without joinder

Grove v. Hodges, 55 Pa. St. 504; of the wife, the destruction of it

Campbell v. McFaddin, 71 Tex. 28, by the lessor could not destroy the

9 S. W. 138. estate or term."

B Traylor v. Cabanne, 8 Mo. App. 7 Carnegie Natural Gas Co. v.

131, 133; but see Combs v. Mid- Philadelphia Co., 158 Pa. St. 317,

land Trans. Co., 58 Mo. App. 112, 27 Atl. Rep. 951, 954; Bergner v.

114 (Cotts. Missouri R. S. 1889, Palethrop, 2 W. N. C. (Pa.) 297,

§ 6371). 23 Pitts. L. J. 103, 8 Leg. Gaz. 35.

8 Tatham v. Lewis, 65 Pa. St. 65, s Jennings v. McComb, 112, Pa.

27 L. I. 77. "The lease was clearly St. 518, 4 Atl. Rep. 812, 17 W. N.

not binding on the lessee. He C. 466, 34 Pitts. L. J. 75.
could not have been compelled to

328 LAW OF LxVNDLORD AND TENANT.

landlord, knowing that a person is in possession of tlie premises
under the lease which is signed by the tenant and not by the
landlord, accepts rent from him as such he cannot thereafter
evade his responsibility as a landlord by showing that the lease
was not signed by him. If a landlord permits another person
to enter and occupy as a tenant, premises owned by him and re-
ceives rent from the occupant as a tenant under a lease signed
only by the tenant but which has been brought to the knowledge
of the landlord, he is estopped to impeach the lease on the
ground that he has not signed it. On the other hand, a lease
which is not signed by the landlord is binding on the lessee who
goes into possession under it.®^ And the landlord may then re-
cover from him the rent which he has agreed to pay. The lease
having been executed by the parties, the statute of frauds does
not apply to such a case.^^ So, where a lessee occupies the prem-
ises under a written lease and pays rent for several months un-
der the instrument which is signed by himself and not by his
lessor, which purports to be a lease for one year, the lease is
valid as a parol lease for one year,®^ and the tenant is a tenant
for one year, though the rent is payable monthly.

§ 232. The signature by the lessor only. In some cases it has
been held that a lease or any other contract which is required
by law to be signed by the parties is void if signed by the lessor
only. A lease signed by the lessor, but not by the lessee and not
accepted nor ratified by him in writing, is not valid as against
the lessee where it comes within the provision of the statute of
frauds, and the lessee cannot be sued in covenant thereon.* The
mutuality of obligation, however, which is lacking where a lessee
has failed to sign a lease may be supplied by his conduct in re-
lation thereto. This is the outcome of the principle of estoppel
by which a party who has voluntarily derived benefits from a
contract which was not legally binding on him is denied the
right subsequently to repudiate the contract. For a lessee by

saBaragiano v. Villani, tl7 111. Barnes, 39 Neb. 103, 57 N. W. Rep.

App.. 372; Evans v. Conklin, 71 990.

Hun, 536, 24 N. Y. Supp. 1081; sc Nicholls v. Barnes, 39 Neb.

Mayer v. Moller, 1 Hilt. (N. Y.) 103, 57 N. W. Rep. 990.

491; Kauer v. Leahy, 15 Pa. Co. o .Jennings v. McComb, 112 Pa.

Ct. Rep. 243. ' St. 518, 4 Atl. Rep. 812, 17 W. N.

«b Lagerfelt v. McKie, 100 Ala. C. 466, 34 Pitts. L. J. 65.
430, 14 So. Rep. 281; Nicholls v.

FORM AND EXECUTION OF LEASES, 329

accepting a written lease, particularly one which is under the
seal of the lessor, and entering into possession thereunder, be-
comes liable, if not for rent,^** then for the value of the use and
occupation of the property for such period as he is in possession.
And apparently the lessee, by the acceptance of the lease and
possession under it, also becomes liable to the lessor for all the
covenants which would have been binding upon him had he
signed the lease." Whether the tenant is liable for the rent on
his covenant, or whether he is liable for the use and occupation
of the premises is, in modern practice at least, of very little im-
portance. The principal question is one of the election of rem-
edies. If the landlord sues for rent or for damages for the
breach of any covenant alleging a written lease and the proof
shows a lease signed by the landlord and not by the tenant, the
landlord may be non-suited. So, it has been held that an action
on the covenant to pay rent will not lie against the tenant on a
lease alleged to be in writing but which is sealed and subscribed
by the landlord only.^^ g^^ ^i^q current of the modem decisions
is certainly against this proposition and most of the courts would
undoubtedly hold in an action brought by the landlord against
the tenant on a written lease, that the latter was estopped to al-
lege or prove that he was not bound by the lease because he had
not signed it, if it appears that he entered on the premises and
paid rent according to its terms. For a lease executed by the
lessor is not rendered invalid merely because it was not signed
by the lessee, from the fact that it contained independent cove-
nants apparently intended to be assented to by the lessee's sign-

10 Pepper's Adm'r v. Harper, 20 Super. Ct. 4 ; Round Lake Ass'n v.

Ky. Law Rep. 837, 47 S. W. Rep. Kellogg, 141 N. Y. 348, 36 N. E.

620. Rep. 326, 327; Filton v. Hamilton

iiTrapnall v. Merrick, 21 Ark. City, 6 Nev. 196; Carnegie N. G.

503; Baltimore & O. R. R. Co. v. Co. v. Philadelphia Co., 158 Pa. St.

Winslow, 18 App. D. C. 438; Fields 317, 325, 27 Atl. Rep. 951; Braman

V. Brown, 188 III. Ill, 58 N. E. v. Dodge, 100 Me. 143, 60 Atl. Ren.

Rep. 977; Henderson v. Virden 799; Bergner v. Palethorp, 2 W. N.

Coal Co., 78 111. App. 437; McFar- C. 297; 23 Pitts. L. J. 103, 8 Leg.

lane v. Williams, 107 111. 33, 43; Gaz. 35; Jenning v. McComb, 112

Doxey Estate v. Service (Ind. Pa. St. 518, 4 Atl. Rep. 812; Tray-

App. 1902) 65 N. E. Rep. 757; Lib- lor v. Cabanne, 8 Mo. App. 131.
bey V. Staples, 39 Me. 161, 166; 12 Trustees of Section 16 v. Spen-

Rice V. Brown, 81 Me. 56, 16 Atl. cer, 7 Ohio, 149.
Rep. 334; Zink v. Bohm, 3 N. Y.

330

LAW OF LANDLORD AND TENANT.

ing the lease and the landlord may waive his right to have the
signature of the lessee to tlie lease and the fact that he put it
on record would justify a presumption that he had done so.^^
The owner of real estate may transfer his land by a lease exe-
cuted by him alone, and the lease will be effectual, although it
contains covenants for the execution of the lessee by signing and
sealing but which are not in fact signed by the latter. The les-
sor may waive the covenant in the part of the lessee.^*

§ 233. The signature to a lease affixed by a surety. A person
who signs a lease as surety for the lessee is not liable jointly
with the lessee in an action to recover rent or to enforce a cove-
nant of the lessee. He undertakes to pay rent or damages only
in case the lessee does not and his liability is not contemporane-
ous with that of the lessee but arises only when the liability of
the lessee has been fixed. The contracts of the two are separate
and distinct and the general rules and principles of sureties are
applicable including that section of the statute of frauds which
requires the consideration in an agreement of a surety to be ex-

13 Libbey v. Staples, 39 Me. 166-
168.

14 Libbey v. Staples, 39 Me. 166;
Braman v. Dodge, 100 Me. 143, 60
Atl. Rep. 799. In Jennings v.
McComb, 112 Pa. St. 518, 4 Atl.
Rep. 812, the law is said to be that
a plaintiff may sustain an action
of covenant on a contract though
it be so defectively executed that
he could not be sued in covenant
on the lease. The basis of this
principle is said to be the general
rule that a party who has not
signed a contract makes himself
liable by accepting it when it is
signed by the other party. But
this does not necessarily mean
that both parties to the contract
have the same remedy against the
other. The one who has signed
may be liable on a covenant. The
one who has not signed can only
be liablo in assumi)sit. In the
case of a lease not signed by the
lessor but signed by the lessee it

was held that the latter could not
be sued on the covenant to pay
rent though he had entered into
possession because no term had
been created to which the cove-
nan^t to pay rent is annexed and
during which it operates. There
being no term there can be no
covenant to pay rent. If there be
no lease there is no covenant. See^
also, Pitman v. Woodbury, 3 Exch.
11.

A lessee is not released from the
obligation of his lease because he
does not seal it where the lessor
signed and sealed it, or the lessee
signed it without sealing it. Such
a contract is equivalent to two
instruments, one containing cove-
sants or promises under seal, and
the other contaiming promises not
under seal, each being a sufficient
consideration for the other, each
would be valid. Rice v. Brown,
81 Me. 56, 62, 16 AU. Rep. 334.

FORM AND EXECUTION OP LEASES. 331

pressed. No consideration being expressed, tlie contract is void
and the person who signed as surety is bound neither as prin-
cipal nor as surety.^^

§ 234. The necessity for and the form of seals. By the an-
cient common law an estate of freehold could be conveyed only
by livery of seizin or by deed, meaning thereby a writing under
seal. Livery of seizin having been abolished both in England
and in America, the sole remaining method of conveying a free-
hold interest in land is therefore by deed. This rule of the com-
mon law as to the conveyance of freehold estates has been af-
firmed by statute in many of the states. Leases for years being
regarded as mere chattels, are valid when in writing though not
under seal unless sealing is required by the terms of some stat-
ute.^® For in a few of the states, leases in excess of a specified
number of years must be under seal.^^ At the common law,
where a seal is required, it must be of wax or wafer or some
other adhesive substance which is capable of receiving an im-
pression.^* By statute in many, if not in all the states, this re-
quirement of the common law has been abrogated so that it has
come to be the almost universal rule that a stamp or impression
made upon the instrument itself, or a scroll or circle of ink, or
certain words or letters w^ritten therein is taken and regarded as
a seal.^^ In two of the states where such statutes have been

15 Evans v. Conklin, 71 Hun, 41; Stoddard v. Whiting, 46 N. Y.
536, 539, 24 N. Y. Supp. 1081; 627. 633.

Decker v. Gaylord, 8 Hun, 111; i7 Seven years in Massachusetts

Gould V. Maring, 28 Barb. (N. Y.) and Maryland, five years in Vir-

444; see, also, DeRidder v. Scher- ginia, two years in Florida, one

merhorn, 10 Barb. (N. Y.) 638; year in Delaware, Rhode Islana

Allen V. Fosgate, 11 How. Pr. 218. and Vermont. In Wisconsin a

16 Crescent City Wharf & Light- seal is unnecessary to a lease and
erage Co. v. Simpson, 77 Cal. 286, does not raise the same above the
15 Pac. Rep. 426; Lake v. Camp- dignity of an instrument not un-
bell, 18 111. 106; Borggard v. Gale, der seal. Woolsey v. Henke, 125
107 111. App. 128; De Loge's Adm'r Wis. 134, 103 N. W. Rep. 267.

V. Hall, 31 Mo. 473; Jones v. is Beardsley v. Knight, 4 Vt. 471,

Barnes, 45 Mo. App. 590; Gay v. 479; Warren v. Lynch, 5 Johns.

Ihm, 3 Mo. App. 588; Den v. John- (N. Y.) 237, 239; Bank v. Gray,

son. 15 N. J. Law, 116; Fougera 2 Hill (N. Y.) 227.

V. Cohn, 2 City Ct. Rep. (N. Y.) is Bohannous v. Lewis, 3 Mon.

253; O'Brien v. Smith, 13 N. Y. (Ky.) 376; Trasher v. Everhart,

Supp. 408, 410, 34 N. Y. St. Rep. 3 Gill & J. (Md.) 234, 246; Hen-

332

LAW OF LANDLORD .VND TEN.VNT.

enacted it must be proved by the language of the writing that
the party meant the scroll or writing to be his seal.-" As a
general rule at the present time, where from the attestation
clause it appears to have beien the intent and purpose of the
parties to execute a sealed instrument, anything adhering to
the paper or any words written upon it at or near the place
where the seal is ordinarily affixed which can with a reason-
ably wide stretch of the imagination, be regarded as such, will
at least prima facie be preisumed to be a seal and to have been
affixed with an intention to seal the writing. And where several
persons execute a writing it is not necessary that each should
have a separate seal, though two or more may bind them-
selves severally by one seal if it shall appear that such was their
intention. ^^

§ 235. The attestation of leases. In the absence of an ex-
press statutoiy provision a written lease, though executed under
seal, is not required to be attested by subscribing witnesses.
Hence a lease, though under seal, is not invalid in any way be-

dee V. Pinkerton, 14 Allen (Mass.)
381; Royal Bank v. Railroad &
Depot Co., 100 Mass. 444, 445;
Bates V. Boston & N. Y. R. R. Co.,
10 Allen (Mass.) 251; Relph v.
Gist, 4 McCord (S. C.) 267; Alex-
ander V. Jameson, 5 Binn. (Pa.)
238, 243, 244; Bradfield v. M'Cor-
mick, 3 Blackf. (Ind.) 161, 162.

20 Austin V. Whitlock, 1 Munf.
(Va.) 487; Lee v. Adkins, 1 Minor
(Ala.) 187.

21 Bohannous v. Lewis, 3 T. B.
Mon. (Ky.) 376, 378; MacKay v.
Bloodgood, 9 Johns. (N. Y.) 285,
287; Yarborough v. Monday, 2
Dev. (S. C.) 493; Townsend v.
Hubbard, 4 Hill (N. Y.) 351; Uni-
versity of Vermont v. Joslyn, 21
Vt. 52; Ball v. Dunsterville, 4 T.
R. 313. By the English statute 8
& 9 Vict., c. 106. S. 3, a lease re-
quired by law to be in writing, is
now required to be by deed and
otherwise it is void. In constru-
ing the statute, it has been held

that though the lease being not
by deed is void, yet it may be
valid as an agreement indicating
the premises upon which the ten-
ant holds as tenant from year to
year. Tress v. Savage, 4 El. & Bl.
36, 2 C. L. R. 1315, 23 L. J. Q. B.
339, 18 Jur. 6S0, 2 W. R. 564;
Hayne v. Cummings, 16 C. B. (N.
S.) 421, 10 Jur. (N. S.) 773, 10 L.
T. 341; Tidey v. Mollett, 16 C. B.
(N. S.) 298, 33 L. J. C. P. 235, 10
Jur. (N. S.) 800, 10 L. T. 380, 12
W. R. 802; Bond v. Rosling, 1 B.
& S. 371, 30 L. J. Q. B. 227, 8 Jur.
(N. S.) 78, 4 L. T. 442, 9 W. R.
746. And the statute does not
prevent the instrument, which as
containing words of present de-
mise and not being under seal is
void as a lease from being en-
forced in equity. Parker v. Tas-
well, 2 De G. & J. 559, 27 L. J.
Ch. 812, 4 Jur. (N. S.) 1006, 6 W.
R. 608.

FORM AND EXECUTION OF LEASES. 333

cause it is not attested and it may be enforced either at law or
in equity on proof of its execution, by any relevant evidence.
The purpose of the attestation is merely to provide a simple
method of proof, and if the parties wish to dispense with this
method of proof they may do so.-^ If a statute requires that
an instrument conveying land must be attested by two witnesses
a lease attested by one witness only, conveys no interest and is
not entitled to record. If it is recorded without proper attesta-
tion the record confers no validity upon it.^^ In some of the
states it is expressly provided by statute that a deed to be valid
must be attested by at least two witnessess.^* Hence, in these
states a lease executed by deed would be invalid unless attested
according to statute. A statute which provided that a convey-
ance of freehold interest in land must be attested does not re-
quire that leases must be attested. The construction which
has just been stated in regard to the attestation of deeds will be
applicable to the attestation of leases. So, also, the competency
of attesting witnesses to leases is to be determined by the same
rules which apply to thd competency of witnesses to deeds.
Thus, as the grantee in a deed is not a competent witness to the
deed, so by analogy, a. lessee is not a competent attesting witness
to the lessor's execution of a lease. -^ Usually, disinterested per-
sons are required as attesting witnesses.^' The wife of a lessee

22Wiswall V. Ross, 4 Port 72; Markley v. Swartzlander, 8
(Ala.) 321; Cocke v. Brogan, 5 Watts & S. 172; Crockett v.
Ark. 693; Jackson v. Allen, 30 Campbell, 21 Tenn. 411; Mauley
Ark. 110; Reinliart v. Miller, 22 v. Zeighler, 23 Tex. 88; Quinney
Ga. 402, 68 Am. Dec. 506; John- v. Denny, 18 Wis. 485; Leinen-
son V. Jones, 87 Ga. 85, 13 S. E. kugel v. Kehl, 73 Wis. 238, 40
Rep. 261; Dundy v. Chambers, N. W. Rep. 683.
23 111. 369; Fitzhugh v. Croghan, 23 Langmede v. Weaver, 65 Ohio
25 Ky. 429, 19 Am. Dec. 139; St. 17. 33, 60 N. E. Rep. 992.
Dole V. Thurlow, 53 Mass. 157, 24 French v. French, 3 N. H. 234;
166; Godfroy v. Disprow (Mich.) Stone v. Ashley, 13 N. H. 38; Pat-
Walk. Ch. 260; Price v. Haynes, terson's Lessee v. Pease, 5 Ohio,
37 Mich. 487; Pearson v. Davis, 190; Hendricks v. Huffmeyer
41 Neb. 608, 59 N. W. Rep. 885; (Tex), 27 S. W. 777; Day v.
Forsaith v. Clark, 21 N. H. 409; Adams, 42 Vt. 510.
Van Soligen v. Town of Harri- 25 Coleman v. State. 79 Ala. 49.
son, 39 N. J. Law, 51; Wood v. 26 winsted Saving Bank & Build-
Chapin, 13 N. Y. 509; Long v. ing Ass'n v. Spencer, 26 Conn. 195.
Ramsay (Pa.) 1 Serg. & R. (Pa.)

334

LAW OF LANDLORD AND TENANT.

©r of a lessor would not be a competent witness to attest the
lease. ^'^

§ 236. The necessity for an acknowledgment. As between
the parties to it, and aside from any question of record, an un-
acknowledged lease is absolutely valid in the absence of an ex-
press statutory provision to the contrary.^* So, generally a
lease, though it is unacknowledged, is good as against subsequent
purchasers, lessees or incumbrancers with actual knowledge of
it.^® If, however, a statute expressly requires that a lease for
a term of years shall be acknowledged or attested, a lease not
thus acknowledged or attested is void.^" Hence, where it is ex-

2T Corbett v. Norcross, 35 N. H.
99. Where there are no attesting
witnesses to a lease the execution
may be shown either by proof by
some person who saw the party
sign it or by proving the party's
handwriting. If the instrument
purports to have been attested, the
witnesses must be called or their
absence accounted for. Though at-
testation may be dispensed with, it
is proper to add that, as it affords
such an easy and effectual mode
of proof as may enable a lessee to
supply the want of an acknowl-
edgment and attain the recording
or registration of his lease, where
and acknowledgment is lacking,
and adds so much to the credit of
a lease or deed, every conveyancer
of common prudence, and every
lessee and grantee in the exercise
of due care, will perceive the pro-
priety of having his lease or deed
attested. Dole v. Thurlow, 53
Mass. 157, 163, which cites Long
V. Ramsay, 1 S. & R. (Pa.) 72;
Garrett v. Lister, 1 Lev. 25; Swire
V. Bell, 5 T. R. 371.

28 Knowles v. Murphy, 107 Cal.
107, 40 Pac. Rep. Ill; Lake v.
Campbell, 18 111. 106; Wiholni v.
Mertz, 4 G. Greene (Iowa) 54, 55;
Simpson V. Mundoo, 3 Kan. 172;

Cable V. Cable, 146 Pa. St. 451, 23
Atl. Rep. 223, 29 W. N. C. 284;
Clark V. Gellison, 20 Me. 18; Bla-
zier V. Johnson, 11 Neb. 404, 9 N.
W. Rep. 543; Weaver v. Coumbe,
15 Neb. 167, 171, 17 N. W. Rep.
S57; Stone v. Stone, 1 R. I. 425;
Town of Lemington v. Stevens, 48
Vt. 38; Buswell v. Marshall, 51
Vt. 87; McGlanflin v. Holman, 1
Wash. St. 239, 24 Pac. Rep. 439;
Schulte V. Schering, 2 Wash. St.
127, 26 Pac. Rep. 78.

29 Bass Lake Co. v. HoUenbeck,
5 Ohio Cir. Dec. 242.

30 A lease or license of land for
the production of oil and natural
gas is within a statute requiring
certain leases of an estate or in-
terest in real property to be signed
by a lessor, and to be acknowl-
edged by him in the presence of
two witnesses, who are to sub-
scribe it as attesting witnesses.
The fact that taking natural gas
from land was a new use of land
arising since the statute was
passed is not material. Such an
instrument being defectively exe-
cuted is therefore not a lease at
all. It is totally void and cannot
be given any validity for a portion
of the term. Placing it on record
gives the lessee no rights under it.

FORM AND EXECUTION OF LEASES. 335

pressly provided by a statute that instruments in writing- con-
veying interests in land shall be attested or acknowledged by
the persons making the same, an unattested or unacknowledged
lease is void even as between the parties to it. Such a writing
conveys no interest to the lessee nor can the lessor enforce any
covenant therein as against the lessee.^^ A statute which pro-
vides that any deed or other instrument in writing shall be
acknowledged by the maker in the presence of witnesses, in-
cludes a lease which is void and conveys nothing if it is not
acknowledged.'^ In Washington, by statute a lease in writing,
if unacknowledged, is valid for one year only. The part per-
formance by the lessee of a void unacknowledged lease for a
longer period, does not validate it.^^ Though a lease is defective
under a statute providing that it shall be acknowledged, yet the
landlord may recover rent if the tenant has entered and had
possession.^* And where a statute provides that no estate in the
real property of a married woman passes by her grant or by any
instrument unless the same is acknowledged by her, her lease
must be acknowledged.^^ A lease for life of the estate of a
married woman signed by her, but not acknowledged as re-
quired by statute, is void.'® So a deed by which a husband and
his wife lease her interest in land is void, unless it is acknowl-
edged by her where the statute expressly requires that the wife

The record is not notice to third as the lessors shall continue in

parties. Langmede v. Weaver, 65 ownership does not come within a

Ohio St. 17, 33. statute requiring the acknowledg-

31 Richardson v. Bates, 8 Ohio ment of an assignment of a lease
St. 257, 261; Johnson's Lessee v. for a longer time than one year,
Haines, 2 Ohio, 55; Abbott v. Bos- since the lessor may remain in
worth, 36 Ohio St. 605 (holding possession less than a year. Rick-
that the lessee acquires only an ard v, Dana (Vt.), 52 Atl. Rep.
equitable title). See Anderson v. 113.

Critcher, 11 Gill & J. (Md.) 450, ss Carlton v. Williams. 77 Cal.

37 Am. Dec. 72, and Stone v. 89, 19 Pac. Rep. 185, 11 Am. St.

Stone, 1 R. I. 425, 428. Rep. 243. In Illinois under the

32 Richardson v. Bates, 8 Ohio statute, it has been held that a
St. 257, 261; Ackinson v. Dailey, 1 lease executed by a married wo-
Hammond (Ohio) 367. man, though unacknowledged, is

33 Dorman v. Plowman, 41 binding on her. Bradshaw v. At-
Wash. 477, 83 Pac. Rep. 322. kins, 110 111. 323.

34 Budgmans v. Wells, 13 Ohio. 88 Worthington's Lessee T.
43; Newstedt v. Scarborough. 13 Young, 6 Ohio, 313, 335.

Ohio Dec. 327. A lease for so long

336 LAW OF LANDLORD AND TENANT.

shall acknowledge it.'^ Under the statute providing for tlie re-
cording and registering of deeds, it is usually absolutely essential
that the paper should be properly acknowledged before it can be
recorded. Where this is the case, the record of an unacknowl-
edged deed or other instrument, or of one defectively acknowl-
edged, does not make the deed or instrument notice to subsequent
purchasers, and hence the recording confers no priority
upon the party claiming rights under the instrument.'* A stat-
ute which merely provides that conveyances of land must be
acknowledged in order to be valid does not affect a lease, for
the term "land" does not comprehend chattel interests as leases
for years. Such leases while they are interests in land are dis-
tinct from it and collateral to it.^^

§ 237. The description of the premises. It is important and
in fact in most instances indispensable that the premises leased
should be properly described in apt words and clear terms so
as to be easy of identification. If the description is vague and
indefinite or if the premises are not described with such a
reasonable degree of certainty that they are capable of identi-
fication, the lease may be void.*" Thus, it seems a description
of the land leased by metes and bounds, but not containing lan-
guage indicating the township, range, county, or state in which
it is located is void for uncertainty and the lessee cannot be

37 George v. Goldsby, 23 Ala. (Vt.) 235; Cox v. Wayt, 26 W. Va.

326. 807.

3« Haskill V. Sevier, 25 Ark. 152; ss See Stone v. Stone, 1 R. I. 425,

Herndon v. Kimball, 7 Ga. 432, 50 428.

Am. Dec. 406; Wickersham v. 4o Dixon v. Finnegan, 182 Mo.

Zinc Co., 18 Kan. 481, 2"6 Am. Rep. Ill, 81 S. W. Rep. 449, 451; Ding-

784; Graves v. Graves, 6 Gray, man v. Kelley, 7 Ind. 717; Reed v.

291; Work v. Harper, 24 Miss. Lewis, 74 Ind. 433, 438; Bailey v.

517; Heelan v. Hoagland, 10 Neb. Wbite, 41 N. H. 337; Goodsell v.

511, 7 N. W. Rep. 2S2; Langmede Rutland-Canadian R. Co., 75 Vt.

V. Weaver, 65 Ohio St. 17, 33, 60 375, 56 Atl. Rep. 7; Bingham v.

N. E. Rep. 992, 996; Betz v. Sny- Honeyman, 32 Oreg. 129, 51 Pac.

der, 48 Ohio St. 492, 28 N. E. Rep. Rep. 735; Coppinger v. Armstrong,

234; McKean and Elk Land Co. 5 111. App. 637; Hay v. Cumber-

V. Mitchell, 35 Pa. St. 269, 78 Am. land, 25 Barb. (N. Y.) 594; Patti-

Dec. 335; Cannon v. Demming, 3 son v. Hull, 9 Cow. (N. Y.) 747;

S. D. 421, 53 N. W. Rep. 863; ?lois- Proctor v. Pool, 4 Dev. (N. C.)

ington V. Hoisington, 2 Aiken 370.

FORM AND EXECUTION OF LEASES. 337

held for rent where he has never gone into possession.'*^ AAliat
will constitute such an uncertainty in the description of the
premises as will invalidate the lease, depends usually on the
languap-e and circumstances of each case. Parol evidence is
received under the general rules to identify the premises which
are the subject-matter of the lease. A reference in the descrip-
tion to the premises as having been used for a particular busi-
ness purpose or as having been occupied by the lessee or other
person is usually sufficient to make the description certain with
the aid of parol evidence.*^ If the lessee enters into possession
under the lease, he is liable for rent for the period of his occu-
pation though the location of the premises does not appear in
the lease,*^ or the description is in some respects insufficient.**
Generally if the description affords means or suggestions of
fact by which, with the invocation and aid of parol evidence,
the premises may be identified, it is sufficiently certain, though
in minor details it be erroneous or inconsistent.*^ If, in the
description there is sufficient to enable one to ascertain with
reasonable certainty what premises the parties to the instru-
ment intended to lease, it will be ordinarily a sufficient descrip-
tion and that part of the description which is false may be dis-
regarded. For it is ordinarily unwise to describe with undue par-
ticularity and minute detail, the demised premises by name, or
boundary', or past or present ownership, use or occupation for
where many facts are enumerated, false statements are apt to
creep in or confusion to arise. Hence, the question may occur
to what extent all these statements must be consistent with one
another or to what extent general words of description are to
give way to particular words.*^ A lease of "part of the third

« Bingham v. Honeyman, 32 Bulkley v. Devine, 127 111. 406, 20

Oreg. 129, 51 Pac. Rep. 735. N. E. Rep. 16, 3 L. R. A. 330.

<2 Andrew v. Carlilo, 4 Colo. ^5 Vose v. Bradstreet, 27 Me.

App. 336, 36 Pac. Rep. 66. 156, 172; Worthington v. Hylyer,

43 Whipple V. Shewalter, 91 Ind. 4 Mass. 196, 205; Campbell v.

114, 119, also holding it proper to Johnson, 44 Mo. 247; Eggliston v.

admit parol evidence to identify Bradford, 10 Ohio, 312, 316; Put-

the premises; Lush v. Druse, 4 nam v. Bond, 100 Mass. 58; House

Wend. rN. Y.) 313. v. Jackson, 24 Oreg. 29, 32 Pac.

4'* Hoyle V. Bush, 14 Mo. App. Rep. 1027.
408; Pierce v. Minturn, 1 Cal. 470; 46 where land is leased in gross

22

338

LAW OF LANDLORD AND TENANT.

story and attic over same" in an identified building is not so in-
definite that it will be void where the tenant went into possession
and occupied a part of the third story marked off by a partition.*'^
So the description of the property demised as ' ' 314 acres out of
the southern part of " a section is sufficient to convey the interest
in the south half of the survey.*^ A reservation or exception of a

there can be no question that the
land was less in quantity than is
mentioned in the lease. Leavitt v.
Murray, Wright (Ohio), 707. In
Dixon V. Finnegan, 182 Mo. Ill,
81 S. W. Rep. 44^, 451, a descrip-
tion as "160 acres of land lying
in M. county, Missouri, and situ-
ated in sections 3 and 4, in town-
ship 55, range 8," was held too
indefinite and the lease was void.
In Bingham v. Honeyman, 32
Oreg. 129, 51 Pac. Rep. 735, the
court said "to give effect to a
lease of real property it must de-
scribe the subject matter of the
demise with reasonable certainty,
either by express words or by ref-
erence to something by which its
location can be ascertained, and
the want of such a description
will render the lease inoperative.
No action for rent can be main-
tained on such a lease where there
Is no entry by the tenant. In this
case the only points named in the
description were the boundary
lines of certain claims and low-
water marlc, the township range,
county and state being omitted
with nothing in the instrument to
show where the claims were lo-
cated. And though there is a ref-
erence to low-water mark there
Is no reference to any stream, lake
or other body of water. If the
claims had been designated as be-
ing in a certain county or locality
the description might have been
sufficient. But as it stands the de-

scription is clearly insufficient un-
der the principle that the test for
determining the sufficiency of a
description is whether the prop-
erty can be identified with reason-
able certainty by a competent sur-
vey or from tlie description given.
A lease of land "beginning 80
yards easterly of the southwest
part of my farm" was held void
in Goodsell v. Rutland-Canadian
R. Co., 75 Vt. 375, 56 Atl. Rep. 7.
In this case the court took proof
of extrinsic circumstances and the
lessee having taken possession of
land which he supposed was in-
cluded in the lease, the court laid
down the rule that under the cir-
cumstances of the case his pos-
session was limited to the part
actually occupied.

47 Appleton V. O'Donnell, 173
Ma:ss. 398, 53 N. E. Rep. 882.

48 Santa Rosa Irr. Co. v. Pecos
River Irr. Co. (Tex. Civ. App.
1906), 92 S. W. Rep. 1014. In the
case of Crabtree v. Miller, 194
Mass. 123, 80 N. E. Rep. 225, the
following clause descriptive of the
demised house was construed:
"Buildings numbered 625 to 631,
inclusive, together with the base-
ment under said premises, mean-
ing thereby the entire buildings
containing stores and all floors
over said stores, meaning thereby
all the real estate I now own on
W. street, excepting the building
known as the Park Theater." In
this case the landlord also owned

FORM AND EXECUTION OP LEASES.

339

certain number of acres out of the total number contained in a
farm, does not render the lease void for uncertainty because the
acres accepted are not specified in it. The right of selection be-
longs to the lessor though he is bound not to exercise it arbitra-
rily so as to interfere with the beneficial use or enjoyment of
the balance of the farm by the tenant.*^ The careful and cer-
tain description of the premises demised is absolutely indispen-
sable, not only for the purpose of identifying the premises, but
also because of the rule that nothing passes by a lease except
what is expressly described in it, or what is absolutely necessary
to it. But the rule that the premises shall be described with cer-
tainty does not prevent a description which may have to be made
certain by the use of parol evidence. Thus, a description of the
property leased as "being the building now or lately occupied
by A," or "the premises known as A farm," particularly if the
locality as the to^wn or city is designated in which the premises
are located, is sufficiently certain because such a description,
though vague furnishes facts by which the premises may be as-
certained with certainty. This is a very familiar rule in the

several adjacent lots upon which
there were a hotel and theatre
with covered passage between the
two. Over the passageway and
lobby of the theatre were rooms
which were used as rooms in the
hotel. There were also other
rooms In the theatre which were
used in connection with the hotel.
The passageway was also used as
an exit from the theatre. The
court in construing a lease of the
hotel by the above description held
that the tenant acquired no right
in the court except to use it as
an appurtenance to the hotel.

*9 Jenkins v. Green, 27 Beav.
437, 28 L. J. Ch. 817, 5 Jur. (N. S.)
304, 7 W. R. 304. A description
of the premises as "Zeringue's
Landing under Nine Mile Point"
is sufficient where this name by
common use has come to desig-
nate a particular place. Wood v.
Sala y Fabrigas, 105 La. 1, 29 So.

Rep. 367. Thus a lease of the
Jackson Ranch, situated in Sau-
vies Island, and with a reference
to deeds from A. to B. in which
the premises had been conveyed
together with a statement of the
quantity of land is sufficient.
House V. Jackson, 24 Oreg. 89, 32
Pac. Rep. 1027. A description
which bounds the leased premises
by a line "commencing at low-
water mark at the lower mouth of
Big Creek" and running thence,
etc., and back to the "starting
point" is sufficient. Fraser v.
State, 112 Ga. 13, 37 S. E. Rep.
114. On the other hand, a de-
scription "beginning 80 rods
easterly of the southwest part of
my farm and extending northerly
to the north line of land owned by
me" renders the lease void for un-
certainty. Goodsell V. Rutland-
Canadian R. Co., 75 Vt. 375, 66
Atl. Rep. 7.

340 LAW OF LANDLORD AND TENANT.

construction of written instruments. The practice is to admit
parol evidence to show the former or present occupancy of the
premises, or to show the name by which they were known and
when these facts are ascertained the description becomes certain.
So, a description of the premises demised as certain premises
conveyed to the lessor by a person named is good whether the
deed of conveyance is referred to in the lease or not. If the deed
is referred to it becomes relevant by this reference, and is in
theoiy a part of the lease. Such descriptions are not, however,
advisable, and should, whenever possible, be avoided, as they
have a certain element of uncertainty about them which, under
some circumstances it may be impossible to remove. Thus, for
example, the description of premises as having been occupied
by a certain person located in a certain town or village may be
ambiguous when it is ascertained that the person named occu-
pied or occupies two separate dwellings in the same town. So,
where premises are described as the farm or building which
* ' was conveyed to the lessor by A " and located in a certain town
and there are several premises conveyed by A there is a latent
ambiguity which renders the description very doubtful. Where
a lease is made of a farm "now in the possession of A," no more
will pass than that portion of the farm which A was in actual
possession of when the lease was made and if any part of the
farm was reserved in A's lease, it will not pass to the new lessee
though it is not reserved in the lease made to him though such
reservation was not actually intended by the parties.^"

§ 238. The description of the parties. The rule of the law
of contracts that the parties to the contract must be certain or
ascertainable is applicable to written leases. The general rules
of law relating to the parties to a written contract require that
they should be either expressly named or indicated in such a
way that their identity can be ascertained. Hence, if the par-
tics to a written contract do not appear designated in tlie instru-
ment itself, and if there is nothing in the transaction which shows
who they are, the writing is void.'^^ Hence, good practice re-
quires the names of the parties to the lease to be stated correctly
and filled in the body of the instrument, but a mistake in the

fo Bartlott v. Wright, Cro. Eliz. Mayo v. Chenewoth, 1 111. (Breese)
299. 200; Brown v. Gilman, 13 Mass

61 Webster v. Ela, 5 N. 11. 540; 158; Ball v. Allen, 15 Mass. 433.

FORM AND EXECUTION OP LEASES. 341

name, whether of the lessor or of the lessee does not invalidate
the lease if the parties can be ascertained either from the other
elements of the description or from parol evidence.^- So, a
mistake in the name of a party, whether of an individual or a
corporation, will not invalidate the lease.^^ And even omitting
the name of the lessor from the granting clause of the lease may
be disregarded if it can be ascertained who he is.^* A misde-
scription of the lessee or lessor in a lease where neither party is
misled thereby does not render the instrument invalid. Thus the
word ' ' incorporated ' ' inserted after the names of the lessors who
were in fact partners in business, does not in any manner affect
the binding character of the lease, where the lessors in signing
the lease signed as partners and not as a corporation. Under
such circumstances, the lessee would be absolutely protected in
paying the rent to the lessors as though they were a firm and iu
taking receipts from them in that capucity.^^ A contract which
firm would be valid though only one person constituted the
would include a lease, obtained in good faith in the name of the
firm.^^ The omission from the lease of the individual names
of the members of the two firms w*ho are named in the lease as
lessor and lessee is not material nor are they released from their
individual liability as the partners may by a subsequent ratifi-
cation make the lease binding on them to the same extent as
though their names were written in it.^' Hence, it follows that
a party whose name was intended to be in the instrument but
which was omitted from it may, by his subsequent conduct ia
accepting benefits of it, become liable as a party to it. But on
the other hand, a person whose name is not in the body of the
lease as a party is not personally liable thereon though he signed
the lease and acknowledged it.^^ Again where a lease was

52 Lyon V. Kain, 36 111. 362; si Schulte v. Schering, 2 Wash.
Montanye v. Wallahan, 84 111. 355; St. 127, 26 Pac. Rep. 78.
Medway Cotton Co. v. Adams, 10 ss Julicher v. Connelly, 102 N.
Mass. 360; Dodd v. Bartholomew, Y. Supp. 620.

44 Ohio St. 171, 5 N. E. Rep. 866; se in re Pelican Ins. Co., 47 La.

In re Pelican Co., 47 La. Ann. 935, Ann. 935, 17 So. Rep. 427.

17 So. Rep. 427; Games v. Stiles, »" Golding v. Brennan, 183 Mass.

14 Pet. (U. S.) 322. 286. 67 N. E. Rep. 239.

53 McCarthy v. Noble, 5 N. Y. ss Barusdall r. Boley, 119 Fed.
380; Hacket v. Marmet Co., 8 U. S. Rep. 191, 195.

App. 150, 52 Fed. Rep. 268, 273,
3 C. C. A. 76.

342

LAW OF LANDLORD AND TENANT.

sigrned by a person whose name was not on the lease at all nor
even in the attestation clause, he was held not to be liable for
the rent as a lessee though if he had accepted the benefits con-
ferred by the lease he would unquestionably be precluded from
denying his liability by showing that his name was signed to
the lease.^^ Inasmuch as the law recognizes only one christian
name, the insertion or omission of a middle name of a party is
immaterial.^" Finally, it may be said that if there is nothing
in the language of the lease or provable from the circumstances
of the case which will indicate who is mentioned by the imper-
fectly expressed name, the lease may be declared void for un-
certainty.^^

. § 239. The date of the lease. At a common law, that is to
say, in the absence of any statute requiring a written contract
to be dated, an instrument in writing including a deed was valid
though the date of its execution was omitted from it.®^ So, also,
the omission of a date from the acknowledgment which is at-

59 Evans v. Conklin, 24 N. Y.
Siipp. 1081, 71 Hun, 536, 54 N. Y.
St. Rep. 915. For the general rule
of the law of contracts under
which the signing of a contract
by one not named therein It ren-
ders him liable. Kendall v. Ken-
dall, 7 Me. 171; Staples v.
Wheeler, 38 Me. 372; Clarke v.
Rawson, 2 Denio (N. Y.) 135;
Thompson v. Goble, 16 Pac. Rep.
713. Contra, Lancaster v. Rob-
erts, 144 111. 213, 33 N. E. Rep.
27; Evans v. Conklin, 71 Hun, 536,
21 N. Y. Supp. 1081, 54 N. Y. St.
Rep. 915.

«o Games v. Stiles, 14 Pet. (U.
S.) 322; Lyons v. Kain, 36 111.
362.

91 Webster v. Ela, 5 N. H. 540;
Marshall v. White's Creek Turn-
pike Co.. 7 Cold. (Tenn.) 252. In
r.arnsdall v. Boloy, 119 Fed. Rep.
191, it was held that a lease signed
by the lessor but which did con-
tain his name in the body of it
was void and created no terra for

no one can be bound by a leas^
who is not a party to it and no
one can be a party to a lease who
is not mentioned and referred
therein, citing Adams v. Medsker,
25 W. Va. 127; Bell v. Allen's
Adm'r, 3 Munf. (Va.) 118.

62 Seldonridge v. Connoble, 32
Ind. 375; Pierce v. Richardson, 37
N. H. 306; Dean v. De Lezardi,
24 Miss. 424; Fash v. Blake, 44
111. 302 (lease); Thompson v.
Thompson, 9 Ind. 323; Lee v. Mas-
sachusetts Ins. Co., 6 Mass. 208;
Banning v. Eades, 6 Minn. 402;
.Jackson v. Schoonmaker, 2 Johns.
.(N. Y.) 230, 234 (lease); Center
V. Morrison, 31 Barb. (N. Y.) 155;
Giles V. Bourne, 6 M. & S. 73; Sol-
oman v. Evans, 3 McCord (S. C.)
274; Simmons v. Trumbo, 9 W.
Va. 358; Fournier v. Cyr, 64 Me.
32; Supreme Council Catholic
Knights of America v. Fidelity &
Ca.sualty Co., 63 Fed. Rep. 48, ll
C. C. A. 90, 22 U. S. App. 439.

FORM AND EXECUTION OF LEASES,

343

taohecl to a lease may be disregarded and will not invalidate the
writing nor authorize a recording officer to refuse to place it
on record providing the date can be supplied by parol evidence.®^
A lease which has no date in it and which also fails to state
when the lessee goes into possession or which bears a date on
which it is impossible that it should have been executed, as for
example, where it is dated the 30th day of February, will oper-
ate from its delivery.®^^ All written instruments will be pre-
sumed to have been executed and written upon the day of the
date which appears in them, though this presumption may be re-
butted by showing that that date is an error. "^^^ Parol evidence
is also receivable to show that a date inserted in a lease or other
writing is erroneous. ^"^

§ 240. The date of the commencement of the term. It is al-
ways advisable to specify explicitly in the lease the date upon
which the term is to begin. If no term is mentioned in the lease
and is not ascertainable by constniing, the lease will be held
void for uncertainty.^* If, from the lease or by construction, it

63 Rackleff V. Norton, 19 Me.
274; Wickes v. Caulk, 5 H. & H.
(Md.) 36; Huxley v. Harrold, 62
Mo. 516; Lea v. Polk, etc., Co., 21
How. (U. S.) 493.

C3a 4 Coke Litt. 46 B; Keys v.
Dearborn, 12 N. H. 52; Trustees,
etc., V. Robinson, Wright (Ohio)
436; Jackson v. Schoonmaker, 2
Johns, (N. Y.) 231; Church v. Gil-
man, 15 Wend. (N. Y.) 656.

63b Overton v. Matthews, 35
Ark. 147, 37 Am. Rep. 9; Inglish
V. Breneman, 5 Ark. 377, 41 Am.
Dec. 96; Le May v. Williams, 32
Ark. 166; Billing v. Stark, 15 Fla.
297; Hamilton v. Wood, 70 Ind.
306; Bank of Commonwealth v.
McChord, 4 Dana (Ky.) 191; Lisle
V. Rogers, 18 B. Mon. (Ky.) 528;
Cutts V. York, etc., Co., 18 Me.
190; Harrison v. Phillips Acad-
emy, 12 Mass. 456; Smith v. Por-
ter, 10 Gray (Mass.) 66; Gardener
V. Webber, 17 Pick. (Mass.) 407;

Aubuchon v. McKnight, 1 Mo. 312,
13 Am. Dec. 502; Britton v. Dier-
ker, 46 Mo. 591; Crawford v. West
Side Bank, 100 N. Y. 50; Meadows
V. Cozart, 76 N. C. 450; Brown v.
Straw, 6 Neb. 5S6; Stephen v. Gra^
ham, 7 S. & R. (Pa.) 505, 10 Dec.
Am. 485; Heffner v. Wenrich, 32
Pa. St. 432; Wood v. Steele, 6
Wall. (U. S.) 80; Outhwaite v.
Luntley, 4 Camp. 179; Walton v.
Hastings, 4 Camp. 223, 1 Starke R.
215; Cardwell v. Martin, 9 East,
180; Master v. Miller, 4 T. R. 320,
2 N. Bl. 140: Vance v. Lowther, 45
L. J. Ex. 200, L. R. 1 Ex. D. 176;
Sinclair v. Baggley, 4 M. & W. 312.

c3c Nail V. Cazenove, 4 East, 477.
See Stele v. Martin, 4 B. & C. 273;
Cooper V. Robinson, 10 M. & W.
• 694 ; Jaynes v. Hughes, 10 Ex.
430; Rex v. Flintshire, 3 Dowl. &
L. 537; Reffel v. Reffel, 1 L. R.
P. & D. 139.

64 Kirsley v. Duck, 2 Vern. 684.

344 L.VW OF LANDLORD AND TENANT.

cannot be ascertained when the term begins the lease will be
void. For in order that a written instrument shall be valid as a
lease it must be for a term which is certain or which can be as-
certained. Hence, a writing which conveys the right to mine
until all mineral shall be exhausted is not a lease because it is
impossible to ascertain when the mineral shall be exhausted."
The date upon which the term is to begin may be shown by any
parol evidence which is not inconsistent with the terms of the
lease. An instrument is not invalid as a lease because the term
is not specified in definite language if the beginning or duration
of the term can be ascertained by parol evidence.'^® Thus, for
example, where there is a manifest clerical error in the lan-
guage of the lease by which the length of the term is made to
appear ambiguous, a counterpart of the lease may be looked at
by the court to ascertain where the mistake is, and the counter-
part will be controlling providing it is clear and free from am-
biguity.®^ The difficulty is usually not so much in ascertaining
the length of the tenn but is ascertaining the date upon which
the term begins. If the date upon which the term is to begin
can be ascertained from the lease or from parol evidence, it is
clear that the length and the date of the expiration of the term
can usually be very easily ascertained with all the elements of
vagueness and uncertainty removed. In the first place, it is a
rule that where the parties in the lease have not specified the
date upon which the term is to begin with the date on which the
lessee entered into possession, will be the first day of the term.^*
Thus, in the case of a valid lease for a term commencing in the
future where the date of the beginning of the future term is
not mentioned, the necessary element of certainty in the com-
mencement of the future term is met by the tenant going into
possession and paying rent under the lease. And the tenant
cannot thereafter assert that his term was uncertain.*^" So,
where a tenant moved in and paid five months' rent in advance
and which the landlord received under an oral agreement for a

«■'. Hobart v. Murniy, 54 Mo. P. 115, 2 C. P. D. 88. 35 L. T. 690,

App. 249. 25 W. R. 334.

«<; Lovelock v. Franklyn, 8 Q. B. csEberlien v. Abel, 10 111. App.

371, 16 L. J. Q. B. 182. 11 Jur. 626.
1035. GO Hammond v. Barton, 93 Wis.

67 Biircholl V. Clark, 46 L. J. C. 183, 67 S. W. Rep. 412.

FORM AND EXECUTION OF LEASES.

345

lease for a term of years, but which fixed no date for the com-
mencement of the term of years, it was held that the term began
when the tenant moved in/'' So, the day possession was given
is the date from which the lease was to commence, under an
agreement for a lease of a public house which provided for a
term of three years with an option to renew for another seven
years and for possession to be given "within one month from
this date." ^^ The circumstance that a lessee took possession of
the premises on the day from which the computation of the term
is made, is a very strong indication that the term was to begin
on that day and was to expire the midnight of the day preced-
ing that date in some subsequent year when the lease is for .
term of years.'- In determining when an oral lease is to com-
mence, the juiy may take into consideration the time when the
lessee went into possession, the time from which he paid rent,
and all other circumstances in connection with the lease which
throw any light upon the question of when the term is to com-
mence.'' Thus, if the rent is to be paid in advance on the tiret

70 Fegreisen v. Sanchez, 90 111.
App. 105.

Ti In re Lander's Contract
(1S92), 3 Ch. 41.

72 Buchanan v. Whitman, 151
N. Y. 253, 45 N. E. Rep. 556, 557,
3 Ann. Cases, 349, affirming 76
Hun, 67, 59 N. Y. St. Rep. 619, 27
N. Y. Supp. 604.

T3 Pendill v. Neuberger, 67 Mich.
562, 35 N. W. Rep. 249. See, also,
Meeks v. Ring, 4 N. Y. Supp. 117,
119, 51 Hun, 329. The parties may
agree among themselves what
meaning to give a lease or a term
which begins from the date of the
lease. Where the term extends to
one "year from the date thereof,"
the fact that the parties took pos-
session on that date is a construc-
tion of the lease, and is conclusive
that they intended that it should
begin on that date and conclude
at midnight on the preceediug day
of the next year. Buchanon v.

Wliitman, 151 N. Y. 253, 256, 3
Ann. Cases, 349, 45 N. E. Rep. 556,
affirming 76 Hun, 67, 27 N. Y.
Supp. 604, 59 N. Y. St. Rep. 619.
The term of a tenant under an
agreement that he shall quit at
three months' notice, commences
on the date when he enters, in the
absence of any provision expressly
fixing the day upon which the
term commences. So, where he
enters under such an agreement
at the middle of one of the usual
quarters his term begins from that
day and his tenancy can, under
such circumstances be terminated
by the landlord giving a notice to
quit which expires on that day of
the year, or some other quarter
day computed from that date. The
court, in laying down these rules,
applied it generally to all parol
leases, under which it said that
no interest exists until the tenant
went into possession, particularly

346 LAW OP lANDLOED AND TENANT.

day of the term or of each month or quarter it will be readily
presumed that in the case of a lease to begin on the first day of
a month stated the first day is included in the termJ* But it
has also been held that where the lease itself fijxes no day upon
which the term is to begin, that it begins at the date of the in-
strument/^ or from its delivery."^^^ In a case of a tenancy from
month to month where a tenant who goes into possession during
the month pays rent to the first day of the following month, his
tenancy will be deemed to commence with the day to which he
has paid.'® It may sometimes be necessary in determining the
commencement of the term to draw a line of distinction between
the time when the enjoyment and occupation of the premises
is to begin and the time from which the instrument itself is to
run. The two are not always synonymous. Thus, the posses-
sion may be expressly agreed upon to begin on a day in the fu-
ture though running in computation of time from a present or
past day. Thus, a lease may be given to have and to hold
from the first day of January next for the term of ten years,
the term to begin from the date of the lease or from a prior
date thereto.'^ In the case of a lease dated on one day,
habendum from a day preceding, the term begins from the date

where the lease is invalid under Johns. (N. Y.) 231. A lease for
the statutes of frauds. If a parol a term of years "next ensuing the
lease is valid the landlord's only day written," commences on the
remedy upon it is where the ten- day and date of the lease, and a
ant has not entered an action notice of the election of the ten-
upon the agreement to pay rent. ant to terminate the lease given
If the tenant neglected to pay rent on the same day of the month, a
before entering the landlord may year later, is too late, as the sec-
put an end to the lease by taking ond year has begun for the rent
possession of the premises, or he of which the tenant may be held,
may, at his election, let them lay Nesbit v. Godfrey, 155 Pa. St. 251,
idle and vacant and sue for the 25 Atl. Rep. 621, following Lysle
rent. Kemp v. Derritt, 3 Camp. v. Williams. 15 S. & R. (Pa.) 136;
510. Marys v. Anderson, 24 Pa. St. 272.

74 Meeks v. Ring, 4 N. Y. Supp. 7« Ver Steeg v. Becker-More

117, 119, 51 Hun, 329. Paint Co., 106 Mo. App. 257, SO

TBKeyes v. Dearborn, 12 N. H. S. W. Rep. 346, 351; Doe v. John-

52; Enys v. Donnithorne, 2 Burr. son, 6 Esp. 10.

1197; Rowe v. Huntington, 1 773 Bac. Abr. 425; Rol. Abr.

Vaughan, 73. 350; Engs v. Donnithorne, 2 Burr.

76a Jackson v. Schoonmaker, 2 1190.

FORM AND EXECUTION OF LEASES. 347

though the lessee had a right to an earlier possession.'" A lease
for a term of years of a building in process of construction and
which the lease recites is to be completed on a day therein speci-
fied, does not necessarily mean that the term is to begin upon
the day on or by which the building is to be completed and that
if the building is not completed, the lease shall not bind the les-
see. The recital of the date upon which the building was to be
completed may be presumed to be mere matter of description
pointing out what property is to be leased leaving the com-
mencement of the term to be determined by the jury from all
the facts and circumstances of the case. And where in the lease
itself or in some other instrument, the lease is spoken of as com-
mencing on the completion of the building and running for a
specified period thereafter, the term will commence upon the
completion of the demised premises and not upon any date speci-
fied by the parties when that event shall take place.'* In deter-
mining the exact day or date upon which a term begins and
ends, the courts, in modem times at least, are not guided or do
not recognize any express rule or presumption of law, or any
particular or technical meaning of the word "day" or "date,"
but are guided rather by the language of the lease which is as-
sumed to express all the intention of the parties; and by the
facts and circumstances of each case.^° In the absence of any
particular expression of an intention to the contrary, if a lease
for years, or from year to year, bearing a certain date, is to
run, or "to have and hold" from that date, the term usually
begins on the day following that date, and the day of the dat«

T8 Mayn v. Beak, Cro. Eliz. 515. the day of the date of the lease
This is a subject on which a great was included in computing the
diversity of opinion is prevalent. time and the court took into con-
Lord Mansfield in Pugh v. Duke sideration in thus construing the
of Leeds, Cowper, 714, says that lease that rent was made payable
"from the date" meant either in- on the first days of April, July,
eluding or excluding the day ac- October and January, in each
cording to the context and subject year. Deyo v. Bleakley, 24 Barb,
matter. In other words the com- (N. Y.) 9.

putation of time should always "o Noyes v. Longhead, 9 Wash,

conform to the manifest intention 325, 329, 37 Pac. Rep. 452, 453.

of the parties. Thus, where a so Pugh v. Duke of Leeds, Cowp.

term was granted for five years 714: Ackland y. Lutley, 9 Ad. &

from the first day of April, 1S53, E. 879.

348 LAW OF LANDLORD AND TENANT.

is excluded in computing the duration of the term.-- On the
other hand, where the intention of the parties clearly called for
such a construction, it has been held that a lease to run from
a particular day specified included tliat date.^^ An agreement
for a future lease in a building which was not completed, for a
term of five years from the completion of the building, is defi-
nite, and the term begins when the building is complete. There
need be no covenant in the lease that the lessor shall complete
the building, for the completion of the building is a condition
precedent to the commencement of the term. The fact that the
lessee goes into possession and pays rent indicates that the par-
ties have agreed that the building is complete and there is no
objection to the lease on the ground of mutuality.^

§ 241. The necessity of the delivery of the lease. Inasmuch
as a deed takes effect only from its delivery by the maker to the
grantee, or to some person authorized by the grantee to receive
the deed where a lease is made by writing under seal, it is neces-
sary to its validity as a lease,, that it shall be delivered either
to the lessee or to his authorized agent. The general rules of
law which involve the delivery of deeds are applicable to a
written lease under seal and will be found cited in the notes.^'

82Goode V. Webb, 52 Ala. 452; hereof, was held to expire on April

McGlynn v. Moore, 25 Cal. 384; 7th of the next year. A lease

Kendall v. Kingsley, 120 Mass. 94; which is to operate from the mak-

Atkins V. Sleeper, 7 Allen (Mass.) ing thereof, or from henceforth

487; Thornton v. Payne, 5 Johns. will prima facie be presumed to

(N. Y.) 74; Wilcox v. Wood, 9 operate from the date of its deliv-

Wend. (N. Y.) 346; Marys v. An- ery. 4 Coke Lit. 46b. Where a

derson, 24 Pa. St. 272, 276, 2 Grant lease was dated March 25, 1783,

Cases, 446; Lysle v. Williams, 15 and habendum "from the 13th of

S. & R. (Pa.) 135; Nesbit v. God- March now last past," and the

frey, 155 Pa. St. 251, 25 Atl. Rep. deed was not executed until scme-

621; Wilkinson v. Gaston, 9 Q. B. time after the date, the term com-

137; Pellew v. Wonford, 9 Barn. menced on the 25th of March,

& Cress. 134; Webb v. Fairmaner, 1783, and not on the 25th of

3 Mee. & Wei. 473; 4 Coke, 46&. March, 1782. Stule v. Mart, 6 D.

8:iFox V. Nathans, 32 Conn. 348; & R. 392, 4 B. & C. 272, 28 R. R.

Deyo V. Bleakley, 24 Barb. (N. Y.) 256.

9; Trull v. Granger, 8 N. Y. 115. 84 Hammond v. Barton, 93 Wis.

It was held in Buchanan v. Whit- 183, 67 N. W. 412.
man, 27 N. Y. Supp. 604, 76 Hun, sr, Frisbie v. McCarty, 1 Stew. &

67, where a lease dated April 8th, P, 56; Stetson v. Briggs, 114 Cal.

to run one year from the date 511, 515; Oneto v. Restano, 89 Cal.

FORM AND EXECUTION OF LEASES,

349

Thus where a lease was signed by lessees but never delivered
by them, but they assigned it at the request of the lessor and de-
livered it to the agent of the lessor and the lessor then collected
the first instalment of rent from the assignee, it was held that
there was no delivery of the lease to the lessor. An actual
manual delivery of the lease by the lessor to the lessee is not
essential and may be dispensed with, if, from the circum-
stances, it may be fairly inferred that a delivery of the lease
was intended by the parties.^^a of course, if the lessor actually
retains the lease in his possession though it has been signed by
the lessee, there can be no delivery to the lessee. For it is abso-
lutely necessary to a valid delivery that the lessor should part
with the control of the written lease. The delivery of a lease is
complete as soon as the lessor has done something with the lease
which prevents his regaining possession and control of it. Thus,
where a lease was signed by both, parties and was left with an
attorney to have a copy made of it, its delivery to the lessee
was presumed.^® A lease under seal or other sealed instruments
will be presumed to have been delivered upon the day of its

63, 26 Pac. Rep. 788; Rittmaster
V. Brisbane, 19 Colo. 371, 35 Pac.
Rep. 736, 740; Speed v. Brooks, 30
Ky. 119; Ford v. Gregory's Heirs,
49 Ky. 175; Maddox v. Gray, 75
Ga. 452; Dearmond v. Dearmond,

10 Ind. 191; Pike v. Letter, 26 111.
App. 530; Leiter v. Pike, 127 111.
287, 20 N. E. Rep. 23; Dickerson
V. Merriman, 100 111. 342; Robrn-
pon V. Robinson, 116 111. 250, 5 N.
E. Rep. IIS; Howard v. Carpenter,

11 Md. 259-277; Rhome v. Gale, 12
Minn. 54; Jackson v. Sheldon, 22
Me. 569; Egery v. Woodard, 50
Me. 45; Maynard v. Maynard, 10
Mass. 456, 6 Am. Dec. 146; Fay v.
Richardson, 24 Mass. 91; Thatcher
V. St. Andrew's Church, 37 Mich.
263; Robinson v. Noel, 49 Miss.
253; Jelks v. Barrett, 52 Miss. 315;
Crawford v. Bertholf, 1 N. J. Eq.
458; Black v. Shreve, 13 N. J.
Eq. 455; Church v. Gilman, 15
Wend. (N. Y.) 656, 30 Am. Dec.

82; Fogal V. Pirro, 23 N. Y. Super.
Ct. 100; Morrow v. Williams, 14
N. C. 264; Green's Trustees v.
Robinson (Wright), Ohio. 436;
Kelsey v. Tourtelotte, 59 Pa. St.
184; Hammell v. Hammell, 19
Ohio, 17; Arthurs v. Bascon, 28
Leg. Int. (Pa.) 284; Coin v. Coin,
24 S. C. 596; Alexander v. Bland,
3 Tenn. 431; Stiles v. Brown, 16
Vt. 564; Dwinell v. Bliss, 58 Vt.
363, 5 Atl. Rep. 317.

s-^'a McClure v. Colelough, 17
Ala. 89; Rivard v. Walker, 39 111.
413; Walker v. Walker, 42 111. 311,
89 Am. Dec. 445; Mallett v. Page,
8 Ind. 364; Crawford v. Bertholf,
1 N. J. Eq. 458; Goodrich v. Wal-
ker, 1 Johns. Cas. (N. Y.) 250;
Lore's Heirs v. Truman, 1 Ohio
Dec. 510, 10 West. Law J. 250;
Farror v. Bridges, 24 Tenn. 411.

^c Reynolds v. Greenbaum, 80
111. 416.

350 Ijaw of landlord and tenant.

date, notwithstanding that the date of the acknowledgment to
the instrument is subsequent to the date in the body of the writ-
ing.*^ There are cases which sustain a contrary rule, the sub-
stance of which is that where there is a discrepancy between the
date of the instrument and the date in the acknowledgment, de-
livery will be presumed to have taken place upon the date of the
acknowledgement.^' So, the presumption that a lease or in-
strument under seal was delivered upon the day of its date is
never conclusive, and the fact that it was delivered upon some
other day may always be proved by parol evidence.^^ The gen-
eral rules defining what shall constitute the delivery of a deed
are ordinarily applicable to leases under seal, A distinction,
however, should be noted. A deed conveying the fee is ordi-
narily valuable solely to the grantee and its maker has no fur-
ther interest in retaining it after he has received the purchase
money. A lease is very different, for under it the lessor has
frequently as much interest as the lessee and consequently he
may be justified to a certain extent in retaining it in his posses-
sion. Leases are usually executed in duplicate, each party keep-
ing a copy. But when this is not done, the retention of the
lease by either party, wath the consent of the other, does not
necessarily indicate that the lease has not been delivered. If
both parties know that a lease has been executed and that it is
in operation, its retention by the lessor is immaterial on the
question of delivery. The entry of the lessee and the payment
and receipt of rent then raise a conclusive presumption of de-

87 .Tayne v. Gregg, 42 111. 413; inson, Wright (Ohio), 436. This
Robinson v. Gould, 26 Iowa, 89; presumption is not recognized in
Ford V. Gregory, 10 B. Mon. (Ky.) New York in respect to all deeds
75; Sweetser V. Lowell, 33 Me. 446. not acknowledged or witnessed;

88 Blanchard v. Taylor, 12 Mich. and o fortiori is rebuttable by
339; Loomis v. Pingree, 43 Maine, showing that the deed or lease
299; Fountain v. Boatmen's Sav- was in the possession of its maker
iugs Institution, .57 Mo. 553. or the lessor subsequent to its

8B Treadwell v. Reynold^s, 47 Gal. date. Elsey v. Metcalf, 1 Denio,

171; Barry v. Hoffman, 6 Md. 78; 323; or by the fact that the date

Fairbanks v. Metcalf, 8 Mass. 230; of the acknowledgment is subse-

Harrison v. Phillips' Academy, 12 quent to the date of the instrn-

Mass. 426; 2 Bl. Com. 307; Good- ment. Mclntyre v. Strong, 48 N.

rich V. Walker, 1 .Tohn. Cas. (N. Y. 127.
Y.) 250; Green's Trustees v. Rob-

FORM AXD EXECUTION OF LEASES.

351

livery to fhe lessee.^" On the otlier hand, the placing of a lease
in the hands of the lessee is not alone a sufficient delivery if
such was not the intention of the parties. This would be the
case where a lessee was handed a lease for the purpose of having
a guarantee of the rent endorsed thereon."^ A question whether
a lease has been executed and delivered to a lessee where there
is a conflict in the evidence has to be detei-rained by the jury.®-
§ 242. The acceptance of a lease. The delivery of a lease by
the lessor to the lessee, whether express or implied, may be dis-
regarded if there is no acceptance by the lessee. In the ease of
deeds, generally the law will imply an acceptance by the grantee
upon the ground that the deed is beneficial to the grantee.®^
Thus, it has been held that in the case of deeds, the actual
Imowiedge by the grantee of the conveyance is not essential be-
cause his assent to the delivery will be presumed upon the bene-
ficial chai-acter of the conveyance, and this presumption can be
overcome by proof of dissent, since^ if this be not the case, there

soOneto v. Restano, 89 Cal. 63,
26 Pac. Rep. 788.

91 Jordan v. Davis, 108 111. 336.
So the delivery of a lease may be
in escrow as where, after its exe-
cution, it is left in the hands of a
third person to be given to the
lessee as soon as he shall pay the
rent for the first month of the
term. Witthaus v. Starin, 12 Daly
(N. Y.) 226. See, also, as to de-
livery of a lease, Hayes v. Lawver,
83 111. 182; Garsuch v. Rutledge,
79 Md. 272, 17 Atl. Rep. 76.

S2 Miltown V. Groodman, Ir. R. 10
C L. 27; Hastings v. Vaughn, 5
Cal. 315; Bensley v. Atwill, 12 Cal.
231; Brann v. Monroe, 11 Ky. Law
Rep. 324; Hurlburt v. Wheeler, 40
N. H. 73; Grain v. Wright, 36
Hun, 74, 114 N. Y. 307, 21 N. E.
Rep. 401; Fisher v. Keane, 1
Watts (Pa.) 278; Stoney v. Win-
terhalter, 11 Atl. Rep. (Pa.) 611;
Shaw V. Cunningham, 16 S. C.
631; Lindsay v. Lindsay, 11 Vt.

621; Dwinell v. Bliss, 58 Vt. 353,
5 Atl. Rep. 317. The question of
delivery, being one of the inten-
tions of the parties to be inferred
from all the circumstances, is usu-
ally a question of fact and not of
law. So the question whether a
deed or a lease was executed and
delivered at the date in the lease
is a question of fact for the jury.
Center v. Morrison, 31 Barb. 155.
93 Treadwell v. Reynolds, 47
Cal. 171; Billings v. Starke, 1.5
Fla. 297; Fash v. Blake, 44 111.
302; Scobey v. Walker, 114 Ind.
254, 15 N. E. Rep. 674; Faulkner
v. Adams, 126 Ind. 459, 26 N. E.
Rep. 170; Alexander v. De Ker-
nel, 81 Ky. 345; Sweetser v. Low-
ell, 33 Me. 446; Smith v. Porter,
76 Mass. 66; Saunders v. Blythe,
112 Mo. 1, 20 S. E. Rep. 319; Rob-
inson V. Wheeler, 25 N.Y. 252;
Hall V. Benner, 1 Pen. & W. (Pa.)
403, 21 Am. Dec. 394; Raines v.
Walker, 77 Va. 92.

352 LAW OF LANDLORD AND TENANT.

can be no delivery in law of a deed to an infant.^* In the case
of leases, under some circumstances, the same presumption or
implication of an acceptance by the lessee where the lease is
executed by both parties and delivered to him will be recog-
nized. The beneficial character of a lease so far as the tenant
is concerned, is not so apparent as furnishing a basis for the
presumption of its acceptance by him as it would be in the case
of a deed of the fee simple. The conveyance of the fee of real
estate by a deed may be based upon a good consideration, as for
example, the love and affection which the grantor has for the
grantee. This is so in many instances. On the other hand,
leases are contractual in their nature and as contracts are merely
promises to perform on the part of both parties. But, unques-
tionably, there is some presumption of the acceptance of the
lease on the part of a lessee.®^ For unquestionably, the delivery
of a lease may be of benefit to the lessee. The beneficial char-
acter of a lease so far as the lessee is concerned is not always
to be determined by the term which it purports to create. The
nature and circumstances of the parties and the title of the les-
see must be considered ; and, where at the date of the execution
of the lease, the lessor had no title to the premises, while the
lessee had a claim of title based on several years of uninter-
rupted possession, no presumption of benefit to the lessee will
arise. ''^ A lessee who accepts a lease executed by and delivered
to him by his landlord without the lessor's consent cannot qual-
ify his acceptance and modify the terms of the writing by parol ;
he must either accept the lease or reject it absolutely and cannoi
accept it on condition. Hence, where a lessor, in fulfilling his
covenant to renew a lease, executed and sealed a lease which he
then sent to the lessee, the signing of the lease by the lessee and
the return of a duplicate to the lessor are not a rejection of the
lease by reason of the fact that the lessee sends to the lessor a
letter denying the lease bound him to pay the rent named in
it.*^ Hut an acceptance may be given on condition that the

04 Mitchell v. Ryan, 3 Ohio St. Hatch, 9 Mass. 307; Jackson v.

377; Falk v. Varn, 9 Rich. Eq. (S. Dunlap, 1 Johns. Cases (N. Y.")

C.) 303; Wall v. Wall, 30 MLss. 91; 114; Jackson v. Bodle, 20 Johns.

Robinson v. Gould, 26 Iowa, 89, 93. (N. Y.) 184.

85 Maynard v. Maynard, 10 "c Camp v. Camp, 5 Conn. 291,

Mass. 456; Hedge v. Drew, 12 200, 13 Am. Dec. 60.

Pick. (Mass.) 141; Hatch v. ot Leiter v. Pike, 127 111. 287, 20

FORM AND EXECUTION OF LEASES. 353

lease shall be valid if the parties shall consent thereto."^ The
retention of a lease by the lessee which has been executed by a les-
sor and sent to a lessee, may, as we have seen, raise a presump-
tion that the lessee has accepted it. The payment of rent may
also raise an implication of tne acceptance of a lease by a lessee.
Where a lessee executed leases, tendered him by the lessor in
duplicate on a parol agreement by the latter to repair the prem-
ises, and, at the same time, pays a sum of money down, it was
held that the pajonent down was not an acceptance of the lease
by the lessee where the owner retained both copies."" The ques-
tion of the acceptance of the tenant's otfer by the landlord may
be material. The landlord's acceptance of the tenant's offer must
be clear and unequivocal. The acceptance of the landlord, like
that of the tenant must also be unconditional. The sending of
a draft lease by the lessor to a lessee who had signed a memoran-
dum agreement which was in its character an offer to take a
lease accompanied by his references, where the lessor does not
accept the oft'er either in writing or by parol, is not such an un-
conditional acceptance of the proposed lease as will enable the
lessee to obtain specific performance for the reason that the ac-
ceptance of a written proposal must be an unambiguous act.
This cannot be said of the sending of a draft lease w^hieh might
have been sent to save time and without any intention on the
part of the lessor of accepting the proposal. So, also, an accep-
tance of a proposal for a lease must be unconditional. The
sending of a draft lease, if it is an acceptance at all, is an ac-
ceptance upon the condition that the lessee is satisfied with it.^
So, a memorandum of an agreement for a lease, which is signed
by the intended lessee, and which contains his references, but
which is not signed by the lessor, and which does not contain in
any portion of it, the name of the lessor, is not binding on the

N. E. Rep. 23, 33, afBrming Pike which he did. It was held that the

V. Leiter, 26 111. App. 520. acceptance was conditional on a

sf* Shelton v. Durham, 76 Mo. correction of the defects.

434, 437, where it appears that the 99 Flommerfeldt v. Englander,

lessee, after the execution of the 61 N. Y. Supp. 1S7. 29 Misc. Rep.

lease, having learned of certain 655; Witthaus v. Starin, 12 Daly

defects in its execution which in- (N. Y.) 226.

validated it, refused to receive it i Warner v. Willington, 3 Drew,

and the lessor agrees to remedy 523, 25 L. J. Ch. 662, 2 Jur. (N. S.)

the defects if he would accept it 433, 4 W. R. 53

23

354 LAW OF LANDLORD AND TENANT.

lessee as an agreement to make a lease,- unless the name of the
intended lessor can be ascertained from some other writing
which is sufficiently connected with the memorandum by clear
reference to cure the omission from the memorandum. So, if
the memorandum of lease refers to the conditions named in an-
other paper or refers to a writing containing the name of the les-
sor or the lessee writes a letter containing the name of the les-
sor, the defect will be cured. The presumption that arises from
the record of an instrument that it has been delivered, may be
rebutted by proof of a contrary intention. Thus, where the
assignment of a lease was recorded after the death of the lessor,
and it was shown the writing had never been in the hands of the
lessee, but that a notary had under the lessor's instructions, re-
tained it in his possession for the lessor until he died, when he
recorded it ; it was held that there had been no delivery ^ by the
lessor. And it was also held in the same case that payment of
rent by the assignee while he was in possession of the demised
premises and his rental, that the lease had been assigned to him,
would not estop him to assert that there had been no delivery
to him.

§ 243. The necessity for the entry of the tenant. By the
common law, livery of seizin or the actual entry of a grantee
upon the land was necessary to the validity of every grant of
land for life or of an estate of inheritance. This was not neces-
sary in the case of grants of terms of years. In England and in
most of the states of the Union, the distinction has been abolished
and the estate vests in the grantee upon the delivery of the deed
or lease whether it is an estate for life, in fee, or for years.'^ In
the case of a lease, all that is vested in the lessee down to the
date he goes into possession is the right of possession. This
vests in the lessee before the delivery to him of the lease. And
at common law it was said that the lessee under a lease had only
the interessee termini until he entered into possession, and it
followed therefore, that he could not, until he had entered into
possssion, maintain trespass against an intruder.'' The execu-

2 Champion v. Plummer, 1 N. R. Higher v. Rice, 5 Mass. 344; Mat-

252. thews v. Ward, 10 G. & J. (Md.)

sCanale v. Copello, 137 Cal. 22, 443; Bryan v. Bradley, 116 Conn.

09 Pac. Rep. 098. 474.

4 Flint V. Shf3ldon, 13 Mass. 443; s Co. Litt. 296b; Harrison v.

FORM AXD EXECUTION OF LEASES. 355

tion and delivery of a lea.se give the tenant the right to the pos-
session and a right of action against the landlord for damages,
if the landlord fails to deliver possession, but they do not give
the tenant any right to maintain an action against a third party
either to recover damages for trespass or to oust a third party
who has taken possession of the premises. The tenant who has
signed the lease may be released by the landlord from his cove-
nant to pay rent before he has entered into possession, and the
lessee on the other hand before he has entered may assign his
lease, and his a&signee will take under it, not the possession, but
the right to the possession. The death of the lessor before the
entry of the lessee does not determine the latter 's right to enter
under the lease. The lessee may enforce his right of entry and
recover damages for its denial from the heirs of the lessor. So,
also, when the lessee dies before entiy, his heirs or personal
representative may enter. So, also, if the lease is made to two
jointly, either may enter on the death of the other.*'

§ 244. The date upon which the lease expires. The date
upon which the term created by the lease expires is to be deter-
mined by computing the time from the date upon which the
term commences. AVhether or not the date upon which the term
commences is or is not to be included in this computation is
elsewhere considered. Generally it is unnecessary to mention
the date upon which the lease terminates. If the date of the

Blackburn, 17 C. B. (N. S.) 678; etc., Co., 5 Exch. 932. In Ryan v.

Wheeler v. Montefiore, 2 Q. B. 133; Clark, 14 Q. B. 65, the court said:

Co. Litt. 296b; Comyn's Digest, "It is distinctly laid down in Wil-

Trespass B. liams v. Bosanquet, 1 Brod. & B.

6 It is firmly settled that a 238, 3 J. B. Moore, 500, that entry

lessee or the assignee of a lease or is not necessary to the vesting of

a mortgagee before entry cannot a term of years in the lessee; the

maintain trespass since that ac- interest and the legal right of pos-

tion is always based on actual pos- session, where the term is to com-

session. Harrison v. Blackburn, mence immediately, and not in

17 Com. Bench (N. S.) 678, 692. the future vests in the lessee be-

See, also, on the necessity for an fore entry, and, of course, the

actual entry to maintain trespass, right of possession in the lessor is

Ryan v. Clarke, 14 Q. B. 73. So gone, though for the purpose of

one who takes a lease for years as maintaining an action of trespass

a security by way of mortgage the lessee must enter, for that ac-

cannot bring trespass unless he has tion is founded on the actual pos-

possession. Wheeler v. Montefiore, session."
2 Q. B. 133; Turner v. Camerous,

356 LAW OF L^VNDLORD AND TENANT.

termination of the lease is inserted in it and this is ineonsi.->tent
with the length of the term measured from the date stated for
the eonuneneement of the lease, the court will correct the error
which is apparent upon the face of the lease. Thus, where the
lease was for the "term of six months from the 6th day of De-
cember, 1881, which term will end on the sixth day of May,
1882," the court corrected the error which was clearly an error
in computation by making it read the "6th day of June, 1882." '^
"Where the term is to end on a specified date, as for example,
"twenty years from the 25th day of next March," the term is
not complete nor is it ended until the last moment of the 25th
day of March in the last year of the term.^' If, from the lan-
guage of the lease, it is uncertain and doubtful upon what date
the term is meant to expire, the tenant, it seems, and not the
landlord, may elect to terminate it upon that date which is most
beneficial to him.^ If the day upon which the tenant is bound
to vacate the premises according to the date of the expiration of
the term as set forth in the lease, falls upon a Sunday, the ten-
ant has until the following Monday at 12 o 'clock to move. The
respect which the law has for the first day of the week, both as
a religious day and as a day for necessary rest, will prevent the
landlord from compelling his tenant to vacate upon that day
where the removal of the tenant involves also the performance
of manual labor in removing his personal belongings. The re-
tention of the possession by the tenant until the following Mon-
day after the Sunday on which his term has expired, is not there-
fore such a holding over as will entitle the landlord to continue
to regard him as a tenant.^"

7 Nindle v. Bank. 13 Neb. 245, following May at 12 M. Marsh v.

247. Masterson, 3 N. Y. Supp. 414, 415;

^Ackland v. Lutley, 1 P. & D. Wilcox v. Wood, 9 Wend. (N. Y.)

636, 9 A. & E. 879, 8 L. J. Q. B. 346, and it has been the immemo-

164. rial usage to exchange possession

» Murrell v. Lyon, 30 La. Ann. at 12 o'clock noon. See as to the

255. same custom in Pennsylvania,

10 See Salter v. Burt, 20 Wend. Marys v. Anderson, 24 Pa. St. 272,

(N. Y.) 205; Jones v. Shears, 4 276; Insurance Co. v. Myers, 4

Ad. & El. 832. In New York, by Lane. Bar. 151. In People ex rel.

custom which has acquired the Elston v. Robertson, Barb. (N. Y.)

force of law all tenancies com- 9, 17, a distinction is made be-

mtncing on May 1st for one year tween a lease to end on the 1st

terminate on the flrst day of the day of May and a lease to the 1st

FORM AND EXECUTION OF LEASES. 357

§ 245. A reversion in the lessor. In order that an instrument
shall be regarded as a lease, there must be a reversion in the les-
sor. The instniment need never expressly state that there is a
reversion in the lessor as this may be sho^\^l by parol evidence.
It follows from this that the instrument which is a lease must
convey a less estate that the landlord possesses. If the instru-
ment conveys all the interest of the landlord, it is an assignment
and not a lease. The words which are employed in the instru-
ment itself are not always conclusive upon the question whether
it is a lease or an assignment of a lease. Hence, where a lessor
parts with his whole interest to another, it is an assignment
though he may call the instrument which conveys his interest a
lease. So the fact that a lessor uses the word "demise" in as-
signing his lease does not change the effect of the writing for the
reason that the word "demise" is often used in a general way as
the equivalent of the word "convey," and may properly be ap-
plied to the conveyance of an estate in fee or other freehold es-
tate as well as to the lease. ^^ So, if a lessee for three years ex-
pressly demises his term for four years, it is not in any sense
of the word a lease, but is in its operation a fixed and valid as-
signment of all his premises.^^

§ 246. The approval of the lease by the attorneys for the
parties. It is sometimes customary to insert in an agreement to
make a written lease, a provision that the writing shall be sub-
ject to the approval of the attorneys of the respective parties.
The insertion of a clause providing for the approval of attorneys
or solicitors does not necessarily prevent informal writings from
being regarded as a lease or indicate that a formal lease is to
be executed. The insertion of the words "to be approved by me
and my solicitor" in a letter offering to make a lease where the
offer was accepted in writing by the other parties, does not pre-
vent these letters from being considered as a complete contract
to make a lease. ^''' AYliere an intended lessee writes a letter which
contains all the language necessary to a contract with a provision

day of May. It is there held that n 2 Inst. 483.

the term created by the former i^ Hicks v. Downing, 1 Ld.

lease ends on the 1st day of May Rayd. 99.

at 12 M., while the latter expires i3 Eadie v. Addison, 62 L. J. Ch.

at 12 o'clock on the nig'ht of SO, 47 L. T, 543, 31 W. R. 320.

April 30th.

358 LAW OF LANDLORD AND TENANT.

"tBat such lease is to be approved in the customary way by my
solicitor," and the offer in the letter is accepted, there is a com-
plete and binding" contract which may be specifically enforced
though the solicitor of the lessee refused to approve the lease or
to complete it. The meaning of the provision for the approval
of the solicitor was that he was to see to it that nothing irregular
informal or unusual was inserted in the lease, which was to be
executed to carry out this agreement.^* Under an agreement for
a lease which is to be approved by the parties' attorneys, the at-
torneys have no right arbitrarily to refuse to approve it. The
refusal of either to be effective to release his principal from the
obligation to execute the lease must be based on reasonable
grounds. For, presumptively at least, the approval must be
prior to or contemporaneous with the execution of the lease
by the parties and not subsequent thereto. If both attorneys
approve tlie proposed lease, their clients are bound to exe-
cute it or accept the consequences. If either attorney arbi-
trarily and without a good and sufficient reason refuses to
approve the lease according to the agreement, his client is in
default and the other party to the agreement may sue for
damages or to compel a specific performance of the contract to
make a lease without a tender of an executed lease on his part.
Nor need he ask a court of equity to reform the agreement so
as to dispense with the approval of the attorney. It is for him
to show that the approval was unjustly refused and if he shall
do this, the giving of the approval may be dispensed with under
the equitable rule that equity will presume that thing to have
been done which ought to have been done.^^ If the parties to an

11 Chipperfield v. Carter, 72 L. certain point tlie terms shall be

T. 4S7. the terms of the contract, but that

i'> Pittsburgh Amusement Co. v. the minor terms shall be slibmit-
Ferguson, 100 App. Div. 453, 457. ted to a solicitor and shall be
91 N. Y. Supp. 427; Sibbald's such as are approved of by him,
Case, 83 N. Y. 384. "If in the then there is no contract because
case or a proposed sale, or lease all the terms have not been set-
of an estate to persons agreeing tied. Now with regard to the con-
to all the terms, and saying 'we struction of letters which are re-
will have the terms put into lied upon as construing a contract,
form,' then all the terms being I have always thought that the au-
put into writing and agreed to, thorities are too favorable to spe-
there is a contract. If two per- cific performance. When a man
sons agree in writing that up to a agrees to buy an estate there are

FORM AND EXECUTION OF LEASES.

359

agreement for a lease actually enter into such an agrreement, the
mere fact that they sent it to a solicitor or an attorney, with in-
structions to prepare more formal documents is immaterial.
The agreement, though informal, will be treated as final, and its
character as a final agreement will not be destroyed nor its va-
lidity as a writing upon which specific performance may be pro-
cured affected by the fact that a solicitor is to recast its form.
If, on the other hand, the parties in negotiating use letters, or
if they have made a memorandum of an agreement which in either
case is not signed by both of them, or from some circumstance
appearing in the evidence, is not shown to be an agreement to
make a lease, the mere fact that they sent the papers to a solic-
itor to have them put in a form which is to be afterguards ap-
proved by them, is some evidence that they do not regard the
memorandum as final and do not bind themselves by a lease, or
an agreement to make one until it is reduced to a proper form.

a great many more stipulations
wanted than a mere agreement to
buy the estate, and the amount of
purchase money that is to be paid.
. . . When therefore you see a
stipulation as to a formal agree-
ment put into a contract, you may
say it was not put in for nothing,
but to protect the vendor against
that very thing. Indeed, notwith-
standing protective conditions the
vendor has not unfrequently to
allow a deduction from the pur-
chase money to induce the pur-
chaser not to press a requisition
which the law allows him to
make. All this shows that con-
tracts for the purchase of lands
contain something more than can
be found in the short and meager
form of an ordinary letter. When
we come to a contract for a lease,
the case is still stronger. When
you bargain for a lease simply,
it is for an ordinary lease, and
nothing more; that is, a lease con-
taining the usual covenants and
nothing more; but when the bar-

gain is for a lease which is to be
formally prepared in general no
solicitor would, unless actually
bound by the contract, prepare a
lease not containing other cove-
nants besides, that is, covenants
which are not comprised in or un-
derstood by the terms 'usual cove-
nants.' It is then only rational to
suppose that when a man says
there shall be a formal contract
approved for a lease, he means
that more shall be put in the lease
than the law generally allows.
Now in the present case, a plain-
tiff says in effect: 'I agree to grant
you a lease on certain terms, but
subject to something else being
approved.' He does not say:
'Nothing more shall be required
beyond what I have already men-
tioned,' but 'something else is re-
quired,' which is not expressed.
That being so, the agreement is
uncertain in its terms, and con-
sequently cannot be sustained."
By Jessel. M. R., in Winn v. Bull,
7 Ch. Div. 29, 31.

360 LAW OF LANDLORD AND TENANT.

In each case, however, the intention of the parties is a question
of fact upon all the circumstances.^®

§ 247. The responsibility of the tenant. The landlord, if he
is wise, will, before executing a lease, ascertain that he is deal-
ing with a responsible tenant. He may make the condition that
prior to the execution of the lease, the tenant shall show that he
is financially responsible. The landlord must be allowed a
reasonable time to look up the references given him by his pros-
pective tenant. On the other hand, he must use due diligence
in making his inquiries regarding the financial condition of his
tenant. If negotiations for a lease are pending and the minds
of the parties have met on the terms of the lease, and negotia-
tions are suspended for the purpose of enabling the landlord to
ascertain whether the tenant is responsible, the landlord cannot
prolong his investigation for an unreasonable period. If he
shall do so, he is alone to blame if the tenant shall treat his
silence and delay as a refusal to give the lease. The tenant is
entitled to know within a reasonable time whether or not his
references are satisfactory and what shall be a reasonable time
depends upon the circumstances of the case, as for example, the
difficulty that the landlord may have in ascertaining the facts
which will enable him to accept or reject the tenant. If he finds
the references are unsatisfactory, he must reject promptly. The
landlord cannot also arbitrarily declare that references furnished
to him are insufficient if, in fact, they ought to satisfy him. The
question whether references are sufficient, and whether the ten-
ant is a responsible person is for the jury to determine. If the
information which the landlord obtains from the parties to whom
the tenant referred should satisfy a reasonable man in view of
all the circumstances that the tenant was responsible, the land-
lord ought to be satisfied and if such is the case, then he is liable
to the tenant for an arbitrary refusal to permit him to have the
lease. In an action by the tenant for damages for the landlord's
failure to execute a lease which was agreed upon, subject to the
result of inquiries as to the tenant's responsibility, the jury
should find for the tenant, if they find that the landlord ought
to have been satisfied, and as a part of this they may find on all

iBRifigway V. Wharton, 6 IT. L. Cas. 238, 27 L. J. Ch. 46, 4 Jur. (N. S.)
173, 5 W. R. 804.

FORM AND EXECUTION OP LEASES. 361

the evidence tliat the tenant was a responsible person and ought
to have been accepted by the landlord. ^^

§ 248. A failure to read the lease. As a general rule of the
law of contracts, it is well settled that where a person, having
the ability to read a written contract, signs it without reading it,
and without requesting it to be read to him, and no fraud or
trick is used upon him to prevent him from reading it, he is
bound thereby to the same extent as though he were familiar
with its contents.^® This rule is applicable to written leases.
If the parties can read, each ought to read it for himself.
If one or both cannot read, it should be read for the bene-
fit of the illiterate party or parties to it. Neither party, being
himself unable to read, has a right to rely upon the other reading
it for him ; nor should he accept any statements of the other as
to the contents of the lease, unless some relation of trust or con-
fidence exists between them.^^ And where a lessor does not
occupy such a position of trust or confidence to the lessee as will
entitle the latter to rely upon the representations of the lessor,
the fact that the lessee, being illiterate, is induced to execute a
written lease by the lessor suppressing certain parts in it in
reading it which are material, does not justify the rescission of
the lease by the lessee for the fraud of the lessor.-° If the les-

17 Ward V. Smith, 11 Price, 19. inson v. Glass, 94 Ind. 211; Webb

IS McKinney. v. Herriclc, 66 v. Corbin, 78 Ind. 403.

Iowa, 414, 23 N. W. Rep. 767; Gul- 20 Binford v. Bruso, 22 Ind.

liher v. Chicago, R. I. & P. R. Co., App. 512, 54 N. E. Rep. 146. A

59 Iowa, 416, 13 N. W. Rep. 429; contract just and reasonable in

Watson V. Planters' Bank, 22 La. its stipulations between competent

Ann. 14; Allen v. Whetstone, 35 parties is not void solely because

La. Ann. 846; Sanborn v. Sanborn, one of the parties who signed it

104 Mich. 180, 62 N. W. Rep. 371; did not when he signed know its

Quimby v. Shearer, 56 Minn. 534, contents in the absence of fraud

58 N. W. Rep. 155; Robinson v. on the part of the other. New

Jarvis, 25 IMo. App. 421; Penn v. York, L. E. & W. R. Co., 8 Ohio

Brashear, 65 Mo. App. 24, 2 Mo. Cir. Ct. Rep. 593. See, also,

App. Rep. 1132; WTieeler v. Mow- Krause v. Stein. 173 Pa. St. 221,

ers, 74 N. Y. St. Rep. 950, 16 Misc. 33 Atl. Rep. 1031. In opposition

Rep. 143, 38 N. Y. Supp. 950; to the rule of the text that neither

Bellinger v. Gillespie, 118 N. C. party has a right to rely upon the

737, 24 S. E. Rep. 538. reading to him of the lease by the

19 Lindley v. Hoffman, 22 Ind. other party, it has been held in

App. 237, 53 N. E. Rep. 471; Rob- some cases that a tenant is au-
thorized to rely upon the land-

362 LAW OP LANDLORD AND TENANT.

sor, knowing that the lessee cannot read, reads the lease for him,
he will be held to the strictest good faith, and if he misrepre-
sents its provisions either by omitting to read clauses which are
actually in it or pretends to read from it clauses which are not
in it so that the lessee is deceived thereby, and by reason thereof
executes the lease relying upon the landlord reading it, the
lease is void for fraud, and if the tenant has entered, he cannot
be held under the written lease, but is simply a tenant at will
under an agreement for a lease.^^ The omission of a lessee to
read the lease before he executes it, does not prevent him from
obtaining reformation of it, if he could read little English him-
self and relied upon some other person to read it for him.^-

§ 249. A mistake in the execution of a lease. Courts of
equity have a general and broad jurisdiction to correct mistakes
which occur in the preparation and execution of written instru-
ments which in its more minute details and application to the
affairs of men is more properly to be discussed in a work treat-
ing of equitable remedies than in this place. Here it may suffice
to say that a lease will be rescinded for mistake only where the
mistake is as to some fact which is material to the transaction

lord's statements of the contents procured by fraud, deceit and mis-

of the lease where the latter has representation, and (2) that the

prepared it or procured it. Powell party executing it must have been

V. Lynde Co., 64 N. Y. Supp. 153, free from negligence in affixing

155, 49 App. Div. 286; Grosvenor bis signature thereto. It is not

V. Green, 28 Law J. Ch. 173; Wil- enough that he executes the in-

son V. Hart, 1 Ch. App. 463. strument when he thought and be-

21 Knoepker v. Redel, 116 Mo. lieved that he was executing an
App. 62, 92 S. W. Rep. 171. entirely different one, but he must

22 Silbar v. Ryder, 63 Wis. 106, be induced to execute it by fraud,
23 N. W. Rep. 106. The rules in deceit, etc., and he must be free
regard to the reading of a written fi'om laches and negligence on his
instrument for the benefit of il- Part. If he can read he must read
literate parties are thus summed it for himself. If he cannot read,
up in Lindley v. Hoffman, 22 Ind. he must have some one upon
App. 237, 53 N. E. Rep. 471. "It whom he can rely to read it for
will be observed in all cases cited him if that is possible; for as a
where this general rule has been general rule, as we shall presently
discussed the decisions have been show, he has no right to rely upon
grounded on two basic proposl- the adverse party to read it for
tions: (1) That the execution of him."

the in.strument must have been

FORM AND EXECUTION OP LEASES. 3G3

and which affects the interests of lessor and lessee in some sub-
stantial manner. If the mistake was as to some trivial or unim-
portant matter, a court of equity will not interfere between the
parties to the lease to give relief. So, too, the mistake must
have been mutual as would be the ease where both the parties
to a lease had agreed by parol upon all its terms and in commit-
ting these terms to writing and on executing the writing, some-
thing material and important previously agreed on had been
omitted by the scrivener from the written lease without the
knowledge of either party. In such a situation of affairs, equity
will insert and supply what the parties have omitted in order
to effectuate their real intention. For the mistake must have
been unintentional as well as mutual and the party who is seek-
ing to have it corrected must show that he was free from negli-
gence in considering the language of the writing he wishes to
have corrected or in his understanding of the facts and circum-
stances of the case.^^ These rules regulate the remedy in cases
of a mistake of fact and it is often said that only mistakes of
fact will be relieved against. This statement is correct if the
mistake of law consists only and exclusively in a misunder-
s-tanding of the legal effect of a transaction by a party who has
a full and intelligent knowledge of all the facts. But a mistake
of law which would be relieved against occurs where the parties
have fully agreed by parol upon the terms of a lease or other
writing, without any mistake of law or fact and they themselves
or their agent in reducing the lease to writing, use words and
phrases, whether technical or not, under a mistake as to their
legal effect and which do not represent the intention of the par-
ties as embodied in their oral agreement. Equity will relieve
against a mistake of this sort occurring in a lease though it be
called a mistake of law, for the contract, as written, does not
represent the true intention of the parties. But where the par-
ties have accurately expressed their final intentions in the lease
and there is no mistake of fact in the preliminary negotiations,
equity will not relieve against a mistaken interpretation of its
language by a party to it which has, without any fraud on the
part of the other, resulted in injury to him.

23Bluestone Coal Co. v. Bell. 38 Irick v. Fulton's Ex'r, 3 Gratt
W. Va. 297, 18 S. E. Rep. 493, 497; (Va.) 191

364 LAW OF LANDLORD AND TENANT.

§ 250. The usual and customary covenants and provisos. A
contract to make a lease, which states only that the lease is to
contain the "usual covenants," means thereby that such cove-
nants shall be comprised in the lease as are fit and proper ac-
cording to the nature of the lease which is to be made. Though
the contract does not stipulate for the "usual and proper cove-
nants, ' ' yet certain covenants will be inserted or implied. What
shall be considered usual covenants depends upon the circum-
stances, that is to say, upon the nature of the property itself and
upon the use which is to be made of it and also upon the cus-
toms of that portion of the country where that property is lo-
cated. "VNHiere the parties have expressly stipulated for the
usual covenants, what are usual covenants is a question of fact
to be determined from the circumstances. The court will al-
ways receive parol evidence to determine the meaning of these
words.^* If the agreement for a lease does not require the usual
covenants to be inserted, it is a question of law for the court to
determine what covenants the parties are entitled to. In con-
struing a stipulation for usual covenants, it has been held that
the lessor cannot compel the insertion of covenants in restraint
of trade where the premises are located in a business section.^^
Nor can he require a restriction in the lease against a particular
trade where the agreement for a lease contained no stipulation
for such a covenant.^** A covenant on the part of a tenant to
keep premises insured is not a usual covenant nor is it a" usual
covenant for the landlord to agree to rebuild in case the prem-
ises are destroyed by fire with a stipulation that the rent shall
cease on his failure to do so.-^ A covenant to pay taxes is in
England a common covenant in a lease which reserves a net rent,
and a provision that upon the breach of such a covenant in the
lease of a pu])lic house, the landlord may re-enter for a breach of
such a covenant is also usual. -^ Under an agreement to lease
premises by a lease to contain all usual and necessary cove-

24 Bennett v. Womack, 3 C. & P. 27 Doe v. Sandham, 1 T. R. 70&;
96, 98. Medwin v. Sandham, 3 Swanst.

25 Wilbrahani v. Livesey, 18 6S5.

Beav. 206, 2 W. R. 281 ; Van v. 2s Bennett v. Womack, 7 B. &

Corpe. 3 Myl. & K. 269, 6 L. J. Ch. C. 627, 1 M. & Ry. 644, 3 Car. &

208, 1 Jur. 101, 149. P. 96, 6 L. J. (O. S.) K. B. 175,

26 Prospect V. Parker, 3 Mylne & :U R. R. 270.
K. 280.

FORM AND EXECUTION OF LEASES. 365

nants, it has been held that a covenant not to assign is a usual
and customary covenant.-^ But there are many cases which
hold that a covenant not to assign without the landlord's consent
or license is not a usual covenant.^" Thus, it will be seen on
comparing the cases on and for this proposition that the weight
of the decisions is decidedly on the side of the latter proposition.
Whether under a provision in an agreement for a lease that the
usual covenants are to be inserted in the lease, the lessor shall
be entitled to have a power of entry upon the breach by the les-
see of a covenant, has been differently decided. It has been held
that a lease ought to contain a power of re-entry on the lessee
becoming bankrupt. ^^ But it has also been held that such a
power of entry is unusual and that an intended assignee of a
lease is not bound to accept a lease containing such a provision un-
less he has expressly agreed to do so.^- And it has also been held
that, as a general rule, a landlord is not entitled to have a pro-
vision for re-entry inserted in the lease as a usual and customary
provision on the breach of any covenant in the lease, except for
the breach of the covenant to pay rent.^^ An agreement for a
lease to contain the usual and necessary covenants and particu-
larly to contain a covenant by the tenant to keep the premises
in good repair, requires that he shall covenant to repair generally
without any exception therein of damages by fire or tempest.^*

29 Morgan v. Slaughter, 1 Esp. Lander and Bagley's Contract, In
8, 5 R. R. 715; Haberdashers' Co. re, 61 L. J. Ch. 707; (1892) 3 Ch.
V. Isaac, 3 Jur. (N. S.) 611, af- 41, 67 L. T. 521, following Header-
firmed 5 W. R. 855; Folkingham son v. Hay, 3 Bro. C. C. 632.

V. Croft, 3 Anstr. 700, 4 R. R. 844. si Haines v. Burnett, 27 Beav.

30 Hampshire v. Wickens. 47 L. 500, 29 L. J. Ch. 289, 5 Jur. (N. S.)
J. Ch. 243, 7 Ch. D. 555, 38 L. T. 1279, 1 L. T. 18, 8 W. R. 130.

408, 26 W. R. 491; Bucldand v. 32 Hyde v. Warden, 47 L. J. Ex.

Papillon, L. R. 1 Eq. 477, 12 Jur. 121, 3 Ex. D. 72, 37 L. T. 567, 26

(N. S.) 155, affirmed 36 L. J. Ch. W. R. 201.

81, L. R. 2 Ch. 67, 12 Jur. (N. S.) as Hodgkinson v. Crowe. 44 L. J.

992. 15 L. T. 378, 15 W. R. 92; Ch. 680, L. R. 10 Ch. 622, 33 L. T.

Browne V. Raban, 15 Ves. 528; Bell 38S, 23 W. R. 885; Anderton and

V. Barchard, 16 Beav. 8, 21 L. J. Milner, in re, 59 L. J. Ch. 765, 45

Ch. 411; Henderson v. Hay, 3 Bro. Ch. D. 476, 63 L. T. 332, 39 W.

C. C. 632; Hampshire v. Wickens, R. 44.

7 Ch. D. 555, followed in Bishop v. 34 Sharp v. Milligan, 23 Beav.

Taylor, 60 L. J. Q. B. 556, 64 L. T. 419; S. C, Nom. Thorpe v. Milli-

529, 39 W. R. 542, 55 J. P. 695; gan, 5 W. R. 336.

366 LAW OF LANDLORD AND "TENANT.

In conclusion, it may be said that the usual tenant's covenants are
(1) to pay rent; (2) to pay taxes, except those expressly made
payable by the landlord; (3) to keep and deliver in repair;
(4) to permit the landlord to enter and view the premises. But
in the United States, a covenant on the part of the tenant to pay
taxes would not be a usual covenant.

§ 251. Leases executed in duplicate and counterpart. Writ-
ten leases of which there are two copies, one signed by each party
to it, are as binding upon the other to the same extent as though
there had been only one copy of the agreement or lease and both
parties had signed it.^^ The mere fact that the parties to a lease
have agreed to call one contract "an original" and one "a du-
plicate," does not affect the force or relevancy of the duplicate
copy.^® Where there is a discrepancy between the original lease
and its duplicate or counterpart which cannot be explained or
which is not shown to be a mistake of the person who wrote it,
the lease will have precedence over the counterpart. This rule
applies only to cases where there is an inconsistency between the
counterpart and the original and not to a case where the terms
of the lease itself are inconsistent.^^ Wherever it shall happen
that there is a difference in the language between the two copies
of a lease, parol evidence is received to show the cause of the er-
ror. The party to the lease against whom the inconsistent copy
is offered may of course show that the difference or inconsistency
between the copy produced in evidence against him and the copy
which he has in his possession was the result of an error in copy-
ing, or that an alteration was made after he had executed the
lease. Where a lease is executed in counterpart, the question may,
arise who is to retain the ownership and possession of the orig-
inal 1-ease and who is to have the copy or counterpart. Prima

35 Morris v. McKee, 96 Ga. Gil, or of a lease signed by both par-
24 S. E. Rep. 142. ties with the attorney of one of

36 Crane v. Partland, 9 Mich. them for the sole purpose of hav-
493. It has been held that a con- ing a duplicate prepared is no de-
tract which was signed by both livery. Lamar Milling & Elevator
the parties and left at the office Co. v. Craddock, 5 Colo. App. 203,
of an attorney to have a duijlicate 37 Pac. Rep. 950.

executed was sufIif;iontly deliv- 3^ Burchcll v. Claris, 46 L. .T. C.

ercd. Blanchard v. Blackstone, P. 115, 2 C. P. D. 88, 35 L. T. 690,

103 Mass. 343. On the other hand, 25 W. R. 334.
the leaving of a copy of a contract

FORM AND EXECUTION OP LEASES. 361

facie, the property in the original indenture of lease is in the
lessee and that of the counterpart is in the lessor. If there is
an original and a duplicate lease, the original should be deliv-
ered to the lessee. The property of the lessee in the original
lease is absolute. The expiration of the term by efflux of time or
by forfeiture on the part of the lessee confers no title to the orig-
inal lease on the lessor as against the lessee. The lessee's right
to retain the original lease after the expiration of his term is
principally based upon the right he may have to sue on his lease
after the term has expired to recover damages for the breach of
a covenant occurring before the expiration of the tenn.^^ So a
lessor who has determined a lease by re-entry for breach of
covenant has no title to the lease as against the lessee.^^ But
as against a stranger to the term, a lease and counterpart would
doubtless be regarded as one instrument and both would belong
to the lessor.*"

§ 252. The mode of proving a written lease. "Where a plain-
tiff sues on a written lease, the rules of evidence applicable
to the proof of handwriting are of service. If the lease was
signed in counterpart, either party may rely upon the counter-
part which is in his possession. Under the general rules, the
signature may be proved either by producing an attesting wit-
ness, or by producing a witness who was present and, though not
an attesting witness, saw the lease signed, or by the evidence of
some person who is familiar with the handwriting of the party
who is to be charged. If a lease is a conveyance within the
statute it may be proved under the statute providing a convey-
ance or a transcript thereof, duly certified and acknowledged,
in the manner prescribed by law to entitle it to be recorded, is
evidence without further proof.*^ Where the plaintiff is not

38 Hall V. Ball, 3 Man. & G. 242, against the tenant for the rent.

3 Scott (N. R.) 577. Houghton v. Koenig, 18 C. B. 235,

39Elworthy v. Sandford, 3 H. & 25 L. J. 218; Roe d. West v. Davis,

C. 330. 34 L, J. Ex. 42, 10 L. T. 7 East, 363. The lease and the

654, 12 W. R. 1008. counterpart ought always to be

<oyear Book, 38 Hen. VI, fol. 24, read together and treated as one

pi. 1. The counterpart of the instrument for the purpose of

lease in the pos.session of the ten- determining their construction,

ant has been held in England to Spyvy v. Topham, 3 East. 115.
be of equal strength as proof in *i Goodman v. Greenberg, 103 N.

an action brought by the landlord Y. Supp. 779.

368 LiVW OF LANDLORD AND TENANT.

suing on the written lease, the relation of landlord may be
proved by parol evidence. Such parol evidence would consist
in the admission of the party or in proof of the payment of rent
by the tenant.''- And where the plaintiff is not suing to enforce
a right under a written lease, parol evidence is received to show
the fact of tenancy, though it appears that there was a written
lease. Thus, where a third party brings an action against a ten-
ant for personal injuries sustained by the tenant's negligence,
it may be proved by parol tliat he was a tenant of a certain per-
son.*^ In a case where the plaintiff relies upon a written lease,
the lease itself is, of course, the best evidence and ought usually
to be produced. Secondary evidence of the contents of a writ-
ten lease will be received where it appears to the satisfaction of
the court that the lease was destroyed; but secondary evidence
will not be received merely because the party who had the lease
in his possession testifies that he has misplaced it, but cannot
swear positively that it is lost or destroyed.** A lease for years
which has expired, where the possession acquired under it has
been surrendered, will be presumed to have been destroyed par-
ticularly after the lapse of a number of years. Its contents may
thereafter be proved by parol evidence.*^ So, where a witness
testifies that he has unsuccessfully sought to find a lease among
his papers, and that it was his custom to destroy all leases to get
rid of them, the court will accept secondary evidence of the lease
particularly in an action between third parties.*^ An unexpired
lease may be presumed to have been destroyed where reasonable
diligence has been unsuccessfully used to secure its production.*'^
§ 253. Term expiring on the happening of contingent event.
A term may be created by the consent of the parties, the dura-
tion of which shall depend upon the happening of some contin-
gent and collateral event. The term will then continue until the
happening of such event when it will at once cease and the les-
sor will be entitled to immediate possession and the lessee may

42 Hearn v. Gray, 2 Houst. (Del.) ^r Hinton v. Fox, 13 Ky. 380.

135. 4G Kane v. Metropolitan El. Ry.

4-- Central Railroad Co. v. White- Co., 15 Daly, 294, 6 N. V. Supp.

head, 74 Ga. 441; Rayner v. Lee, 526.

20 Mich. 384; Thompson v. Mat- ■•t Doe d. Manton v. Austin, 2

thews, 61 N. C. 15. M. & Scott, 107, 9 Bing. 41, 1 L. J.

■»< Riirke v. Bragg, 89 Ala. 204, 7 C. P. 152.
So. Rep. 156.

FORM AND EXECUTION OF LEASES.

369

vacate the premises without the ser\'ice by him of any notice to
quit.*^ "When a lease depends upon the happening of a contin-
gent event, the tenant as well as the landlord is bound to watch
for the happening of that event and to surrender the lease as
soon as it shall happen/^ for by the happening of such an event,
the whole interest of the tenant is terminated and the lessor be-
comes at once vested with the right of entry.^° Thus, a lease
may create a term which shall expire when another term created
by a separate instrument shall cease,^^ which shall last during
the whole time the lessee may be postmaster,^^ which shall ter-
minate in case the machinery in the demised premises shall
break down,°^ w^hich shall terminate when another building,
which is in process of construction, shall be completed,^^^ or
which shall last so long as a co-partnership continues,^* which
shall continue until the lessor sells the property," or until the
lessee finds another place,^^ or until the lessor who is a mortgage
debtor of the lessee, shall pay him what he owes." The term
is contingent and uncertain where it is made for a particular
number of years, or in the alternative for the life of the lessee

48 Snook & Austin Furniture Co.
V. Steiner & Emery, 117 Ga. 363,
43 S. E. Rep. 775; Scott v. Willis,
122 Ind. 1, 22 N. E. Rep. 786;
Horner v. Leeds, 25 N. J. Law,
106; Russel v. McCartney, 21 Mo.
A pp. 544; Aydlett v. Pendleton,
114 N. C. 1. 18 S. E. Rep. 971;
Aydlett v. Neal, 114 N. C. 7, 18 S.
E. Rep. 973.

40 Clark v. Rhoads, 79 Ind. 342,
344.

50 Chretien v. Doney, 1 N. Y.
419, 422. A lease in writing may
be made to depend upon a contin-
gency, and when this happens it
is valid as to all its conditions.
Insurance & Law Bldg. Co. v. Na-
tional Bank of Missouri, 5 Mo.
App. 333.

51 Eubank v. May & Thomas
Hardware Co., 105 Ala. 629, 17 So.
Rep. 109.

r.2 Easton v. Mitchell, 21 111. App.
189.

24

5.<! Scott V. Willis, 122 Ind. 1, 22
N. E. Rep. 786.

53aD'Arcy v. Martin, 63 Mich.
602, 30 N. W. Rep. 194.

04 Russell V. AlcCartney, 21 Mo.
App. 544.

55 Clark V. Rhoads, 79 Ind. 343,
344.

50 Hoffman v. McCallum, 93 Ind.
326.

57 Hunt V. Comstock, 15 Wend.
(N. Y.) 665, 669. Where a land-
owner agrees his creditor may oc-
cupy premises belonging to him
for one year and until he pays a
mortgage which the creditor holds,
it is at the election of the owner
to put an end to the term at any
time after the first year by pay-
ing or tendering payment of the
debt, though the money is not due,
according to the terms of the
mortgage for four years. Hunt v.
Comstock, 15 Wend. (N. Y.) 665,
669.

370 LAW OF LANDLORD AND TENANT.

or lessor or of some other person. Just what such a limitation
means in a lease is a question of construction to be determined
by the exact words which are employed. A lease "for the space
of twenty years or during the natural life of the lessee," was
held not to extend longer than twenty years in any case. It
was to be contingent upon the life of the lessee, and if the lessee
died before the twenty year period expired, the lease was then
to come to an end. But if he should survive the twenty year
period, then the term was to expire at the end of twenty years.^^
A lease to a partnership of a building owned by one of the part-
ners for the use of the firm for the period for which the partner-
ship is to continue is contingent upon the continued existence
of the partnership. If, therefore, the partnership, for any rea-
son such as by death of either partner, is dissolved, the
term is at an end though by the articles of co-partnership the
firm was to exist for a specified and certain number of years.^"
Where property is leased for a term of years to expire at the
same time as another lease for a term held by the lessee, it will
be presumed that the expiration of the second lease referred to
is its expiration by efflux of time or by the mutual consent of
the parties to it. The tenant, therefore, cannot give up the
one lease at any time he may choose, as for example, as soon as
he discovers it is not binding on him because it is invalid under
the statute of frauds and thus secure his release from the other
lease by reason of such action on his part.*'*' A lease to a rail-
road company of land "so long as the same shall be used for rail-
road purposes" and which recites that the lessee is "now en-
gaged in altering and improving the railroad depot ' ' for the pur-
pose of more conveniently transacting the business of said com-
pany "and for the better accommodation of the public," contin-
ues only while the land is used "for public railroad purposes."
On the lessee conveying the land to an individual and the use of
it for private railroad purposes, the lessor can recover posses-
sion."^ A lease of land for th(> purpose of enabling the tenant to
remove timber therefrom may be, under some circumstances, re-

f'« Sutton V. Hiram Lodge, 83 Ga. co Kubank v. May & Thomas

770, 10 S. E. 585. Hardware Co., 105 Ala. G29, 17 So.

•"'f Johnson v. Hartshorne, 52 N. Rep. 109.

Y. 173, 177; Doe v. Miles, 1 Stark, «' Kugel v. Painter, IGG Pa. St.

181 Doe V. Black, 8 C. & P. 464. 592, 31 Atl. Rep. 338.

FORM AND EXECUTION OF LEASES. 371

garded as a contract for the sale of the timber and not as a mere
lease of land npon which the timber is located. If the principal
object of the parties is the removal and sale of the timber, the
writing will be regarded as a sale and not as a lease and the rights
of the parties will be adjusted accordingly. Thus, where a con-
tract leased land with the privilege in the tenant to remove the
timber therefrom and where it was apparent that the principal
purpose of the parties was the purchase and sale of the timber and
not the free occupation and enjoyment of the land, it was held
that where the timber was all removed from the land before the
end of the term specified in the lease, the right of the lessor to col-
lect rent was at end. It would appear that from the intention of
parties in such an agreement, the term itself would come to an
end when the purpose of the so-called lease was accomplished,
but even where the term is expressly extended so that the lessee
may remain in possession if he desires to do so, the lessor cannot
after the timber is all cut collect rent from the lessee for the
balance of the term, though the latter may still remain in posses-
sion of the land.^-

§ 254. Leases terminable on the sale of the premises. Terms
for years are not ordinarily terminable by the sale of the prem-
ises by the lessor though a contrary- rule is applicable to leases
at will. It is competent for the parties to a lease for years to
provide by express agreement that the term shall be ended by a
sale of the premises by the lessor. Such a provision is frequently
very advantageous to a lessor inasmuch as he is thereby enabled
to lease for a long term without any danger to himself that he
will be prevented from selling his property whenever he may
chose to do so because of its occupation by a tenant having a long
lease. On the other hand, such a provision may be very disad-
vantageous to a tenant abruptly shortening his term at a mo-
ment perhaps when his occupation had become very valuable,
while during its existence he will be deterred from making im-
provements because of the uncertain character of his tenancy.
Hence, in justice to the tenant in all cases where his lease is
terminable by a sale of the premises, the lessor will be held to the
utmost good faith in making the sale. Unless fraud is proved, on
the part of the lessor, or in other words, unless it shall appear

62 Baird v. Milford Land, etc., Co., 89 Cal. 552, 26 Pac. Rep. 1084,

372 LAW OF LANDLORD AND TENANT.

that the sale is a mere pretence to oust the tenant, mere inade-
quacy of price will not render the sale ineffectual. The landlord
may sell at any price and to any person, and while these facts
may be taken into consideration with other facts in the case to
detennine whether the sale was hona fide they are never con-
clusive.^^ But where it shall appear to the satisfaction of the
court from all the facts and circumstances that the sale by the
landlord was merely going through a form of sale without any
valid transfer of the legal title for a valuable consideration, but
merely for the purpose of bringing the lease to an end, the sale
will not terminate the lease.®* As in all questions of good faith
or fraud, the range of the evidence to determine the presence of
fraud is a wide one. The court ought to have before it all the
circumstances, as for example, the relation of the parties who pur-
chase to the landlord; the consideration paid, the nature of the
use to which the purchaser is to put the premises, and the state-
ments and declarations of the parties to the sale. If the sale is
made with the intention to defraud the lessee it is not necessary
to show that the purchaser was a party to the fraud. It is enough
to defeat the sale to show that it was prompted by an attempt to
defraud on the part of the landlord. Under a lease which pro-
vides that the sale of the land by the lessor in good faith shall
terminate the lease, the lease is at once brought to an end as
soon as the land is sold. The tenant is thereafter a tenant at
sufferance or at will and is liable to the landlord as such. The
landlord may treat him as a trespasser and oust him by proper
proceedings. The purchaser may, as against the tenant, take
immediate possession of the premises though he must allow the
tenant a reasonable time to remove his fixtures therefrom. No-

c:i Dunn v. Jaffray, 36 Kan. 408, were not a mere subterfuge to
13 Pac. Rep. 781; Wallace v. Bahl- bring the lease to an end. The
horn, 68 Mich. 87. 35 N. W. Rep. fact that the sale was for a nomi-
834. A firm composed of several nal consideration was not conclu-
members owning premises leased sive, though the smallness of the
the same "for the term of and un- consideration was a circumstance
til said premises are disposed of which might be considered in Con-
or sold by the said firm." It was nection with the other evidence
held that the landlord might put to show the faith of the landlord,
an end to the lease by the sale of Dunn v. Jaffray, 36 Kan. 408, 13
the premises in good faith to one Pac. Rep. 408.
of the members of the firm, if this 64 Ela v. Bankes, 37 Wis. 89.

FORM AND EXECUTION OF LEASES. 373

tice neerl not be given by the purchaser to the tenant, but a no-
tice by him that he has bought the land, that the lease is thereby
terminated and that he takes possession is sufficient.®^

§ 255. The option of the lessee to terminate the lease. A
lease which is determinable only at the option of the lessee and
which, consequently, may continue with his consent and against
a protest of the lessor is valid.®® Thus, a lease fpr the term of
five years and as much longer as the lessee desires, confers the
right upon the lessee to continue to occupy the premises so long
as he wishes to do so, and providing he fulfils the conditions of
the lease, he may continue during his life time after the expira-
tion of the five years.®^ Such leases as this are not open to the
objection that they are without consideration on the part of the
lessee as to the period during which he elects to remain. The
rent received by the lessor during that period is the considera-
tion for the promise of the lessor to permit the lessee to remain
in possession. These leases are somewhat in the nature of leases
at will, and the time or period during which the lessee may con-
tinue need not be fixed but may be wholly at his option. So, a
lease of land for the manufacture of salt ''for any term of years
the lessee may think proper from date," ®* or as long as certain
salt works erected thereon should be used for that purpose,®^ or
as long as a lessee should keep a furnace and buildings on the
land,'" is unquestionably valid. In some cases, from the terms of
the lease it is doubtful whether the option to continue the term
is with the landlord or with the tenant. This, of course, is al-
ways an important question. No general imle can be laid down
by which it can be determined. "Whether the option is with the
landlord or with the tenant is a matter of construction, though
the presumption in most cases, is that the option is with the
tenant. Thus, an agreement that a house shall be leased for a
term of thirty-one years with, liberty to have the same ended at
the end of any third year should it be so desired in which case

65 Aydlett v. Pendleton, 114 N. ss Harner v. Leeds, 25 N. J. Law,
C. 1, 18 S. E. Rep. 971. 106.

66 Effinger v. Lewis, 32 Pa. St <ii> Hurd v. Gushing, 7 Pick.
367; Myers y. Kingston Coal Co., (Mass.) 169.

17 Atl. Rep. 891, 126 Pa. St. 582, to Cook v. Bisbee. 18 Pick,

24 W. N. C. 223. (Mass.) 527.

6T Sweetser v. McKeney, 65 Me.
225, 227.

374 LAW OP LANDLORD AND TENANT.

six months' notice to quit is to be given, and if the tenant desires
to have a lease executed for the remainder of the term, it was to
be given, confers the option of determining the tenancy on the
tenant and not on the landlord.'^ Thus, it is a well settled rule
of law that an agreement for a lea^e for a term of seven or four-
teen years means that the lessee may have a lease for fourteen
3^ears which shall be determinable at his option at the expiration
of seven years, not at the option of the landlord.'- Wliere a
lease is granted for seven, fourteen or twenty-one years, the
lessee only has the option to determine at which of the above
periods the lease shall come to an end.'^ A lease for seven, four-
teen or twenty-one years as the lessee shall think proper, is a
good lease for seven years, whatever it may be for the fourteen
or twenty-one years.'^* Under some circumstances and by par-
ticular language a lease may be made to terminate at a particular
period or at one of several particular periods, by the joint ac-
tion of the parties. If no mention is made as to who shall have
the option, the option is usually with the lessee. A lease for
twenty-one years determinable at the end of seven or fourteen,
if the parties so think fit, is determinable only by the joint as-
sent of both parties.^^ If the party who has the option exercises
it, the lease is at an end at once for all purposes and the other
party is released and any one who may have been a surety is also
released. Where a lease was granted for fourteen years with a
stipulation that the landlord might, if he so desired, terminate

Ti Fallon V. Robins, 16 Ir. Ch. R. the intention of the parties from

422. the word used by them. "Where

T2 Powell V. Smith, 41 L. J. Ch. the lease is granted for seven,

734. L. R. 14 Eq. 85, 20 W. R. 602. fourteen or twenty-one years, with-

■••'i Dann v. Spurrier, 3 Bos. & out mentioning at whose option it

P. 390, 442, 7 R. R. 797, 802, 7 is determinable, it has been de-

, Ves. 231, 6 R. R. 119; Price v. cided that the option is with the

Dyer, 17 Ves. 363, 11 R. R. 102. lessee where the lease mentioned

74 Ferguson v. Cornish, 2 Burr. both parties, but it is not stated

1032, 2 Term Rep. 403, n. whether the option of determin-

"'• Towell V. Tranter, 3 H. & C. ing it is in either party, or

458, 34 L. J. Ex. C, 11 L. T. 317, whether both parties are required

13 W. R. 145, in which the court to consent for that purijose. It

said that it was likely that the is certainly open to contend that

parties meant that only one of both are mentioned in order that

them should have the option, but (he landlord may have an ootion

that the court would have to take as well as the tenant."

FORM AND EXECUTION OF LEASES. 37i)

it at the end of seven years, on his giving notice of his desire to
do so in writing, and he gave notice to quit not expressing his
desire to terminate the tenancy under the proviso referring to
the lease, it was held that the lease was at an end under the pro-
viso, and that a surety of the tenant who had joined in the cove-
nant was thereby released.''® It is very probable that in the ab-
sence of an express provision annexing the option to continue the
lease to the land an option in a tenant to extend a lease or
to continue a lease would be regarded as a personal cove-
nant which he could not assign. Thus, if the lease provided that
it M-ould continue for a certain fixed term of years and so long
thereafter as the tenant desired to occupy the premises, or so
long as he should desire to carry on a certain business in the
premises, the option would be personal to the tenant and could
only be exercised by the tenant himself. Such an option, how-
ever, may be made assignable or transferable by express lan-
guage. Accordingly, a provision that if either of the parties
shall desire to extend the lease or to terminate at a specified date,
it shall be lawful for them or either of them or their executor
or administrator to do so includes not only a personal repre-
sentative of the lessor but one to whom he has devised the prem-
ises.'^ A lease which gives to the tenant an option to continue
its term after a specified date must be reasonably certain in its
language as to the extent of the extension or it will not be en-
forced in equity by a decree of specific performance. A letting
to a yearly tenant and if he should wish a lease that the lessor
will grant him one for seven, fourteen or twenty-one years at the
same rent, is sufficiently certain for specific performance, and
will be considered an optional lease for twenty-one years from
the date of its making determinable at the end of seven or four-
teen years at the option of the tenant. The landlord has a right
to call on the tenant to exercise his option and in default of his
doing so, the landlord may determine the tenancy.'^ A lessee
of a coal mine for a term of years who has a right to terminate
the lease in a certain time by the giving of a written notice and
on the expiration of the period of notice the lease is to become

-« Giddens v. Dodd, 3 Drew, 485, Hayley, 12 East, 464, 470, 11 R. R.
492, 25 L. J. Ch. 451, 4 W. R. 377. 455.

77 Roe lessee of Bamford, v. 7s Hersey v. Gibbletts, 18 Beav.

174, 23 L. J. Ch. 818, 2 W. R. 206.

376

LAW OF LANDLORD AND TENANT.

void provided all arrears of rent shall have been paid and all
agreements and covenants performed by the lessee must fully
perform all covenants as such performance of covenants by
him is a condition precedent to the exercise of his right to de-
termine the lease.'® Notice given under a provision in a lease
for determining it at a certain period must agree with the notice
required in the provision. A substantial compliance is all that
is required. It is not necessary that it shall follow the precise
language of the lease if the notice given is not contrary to it. A
notice which expressly states the desire of the lessee or lessor
to determine the lease at the end of a specified period will un-
questionably be sufficient. But if the notice is such that from
its language it may be inferred that the intention of the person
giving it is to terminate the lease under his option it may be
sufficient. Hence, a mere notice to quit the premises which reads,
"determinable as therein mentioned," is usually sufficient.®"

79 Friar v. Grey, 5 Ex. 597, 15
Jur. 814, affirmed 4 H. L. Cases,
565, 18 Jur. 1036.

80 Giddens v. Dodd, 3 Drew, 485,
402, 25 L. J. Ch. 451, 4 W. R. 377.
The cases in England which have
placed the option in the hands of
the lessee are based on the rule
of law that the lease shall be
taken l: stronger against Che les-
sor, as laid down in Bath's Cases,
6 Co. Rep. 35b. If a contract is
made to make a lease for seven,
fourteen or twenty-one years,
there must be an option in some
one to determine the length of the
lease. Under the rule just stated
that a lease is to be construed
most favorably to the lessee it
cannot possibly be considered that
the option shall be in the lessor.
If the provision is made in the
lease that it shall be determined
at the option of either party, the
lessor would be entitled to take
advantage of the option, but,
where no such provision is in the
kase, the usual construction Is

that the lessee alone is entitled to
continue the term which is most
beneficial to him. Dann v. Spur-
rier, 3 Bos. N. P. 399-442. In the
case of Roe, lessee of Bamford v.
Haley, 12 East, 464, the court evi-
dently regarded this option to pro-
cure an extension of the lease as
running with the land. The court
said: "The covenants by a lessor
that he would renew at the end
of his term has been adjudged to
run with the land, and to bind the
grantee to the reversion. There
is no substantial difference in
point of construction between the
stipulation for extending the term
and the stipulation for shorten-
ing it. So a covenant to renew
at the request of the lessee has
been held in equity to run with
the estate, and to oblige the lessor
to renew at the request of the
lessee or executors, there being
nothing in the lease to show that
the renewal was intended to be
confined personally to the lessee,
and it being considered that the

FORM AND EXECUTION OF LEASES. 377

§ 256. Measure of the damages for a failure to execute a
lease. The lessee may recover as damages for the owner's fail-
ure to execute and deliver a lease as agreed on, the difference be-
tween the rent agreed on and the actual rental value of the
premises.^^ The lessor may recover as against the lessee for the
failure of the latter to accejot a proper lease tendered, the fair
and reasonable value of the use of the land for the term, less
all revenue or income the lessor may have derived from his own
use of the land, or which he might have secured by the use of
ordinary- care and effort in letting it to another.*^ The lessee
can recover only such damages for a failure on the part of the
lessor to execute the lease as he can prove in money. He must
prove some pecuniary loss due to the breach of the contract and
cannot recover for his disappointment, or for the trouble and in-
convenience in securing other premises.^^ A sum of money paid
to the lessor by the lessee at the commencement of the negotia-
tions for a lease as evidence of good faith on the part of the les-
see must be returned to him when, after an inspection of the
premises, he refuses to execute a lease and the minds of the par-
tics have never met on the terms of the proposed lease.** A de-
posit thus paid may be recovered by a lessee as special damages

executors were identified with the in it and given to a mere stranger
lessee. If the proviso in this case having no interest in it whatever/'
is to be construed literally, what si Knowles v. Steele, 59 Minn,
will be the consequences? If the 452, 61 N. W. Rep. 557; North
lessee or his executors assign, Chicago St. R. Co. v. Le Grand Co.,
such assignee cannot give the no- 95 111. App. 435.
tice, because he is not within the 82 stoker v. Wilson (Tex. 1885),
words, but, if any notice is to be Civ. Cas. Ct. Ap. § 10; Massie v.
given . on his part, he must pro- State Nat. Bank, 11 Tex. Civ. App.
cure it to be given by the lessee 280, 32 S. W. Rep. 797. Only
or his executors. And for the nominal damages can be recov-
same reason if the lessor dies, his ered by either party under a con-
heir or devisee cannot give it, but tract to make a lease if the con-
if any notice in such cases is to tract is unenforceable under the
be effectual it must be from the statute of frauds. Sausser v.
executors or administrators of the Steinmetz, 88 Pa. St. 324, 326.
lessor. Now it never could be in- 83 D'Orval v. Hunt, Dud. Law
tended that the right of determin- (S. C.) 180.

ing the terms should be taken s* Equelina v. Provident Realty

from the only person interested Co. of New York, 84 N. Y. Supp.

1014.

378 LAW OF LANDLORD AND TENANT.

in addition to tlie general damages if it is alleged as special
damages.

§ 257. The effect of the statute of frauds on leases. The exe-
cution of leases is, in some cases, regulated by the provisions of
the Statute of Frauds. The English. Statute of Frauds so far
as it concerns leases, has been substantially re-enacted in some
of the states. In that statute it is provided that a parol lease
not to exceed a period of three years from the making thereof
shall be valid. In some states no lease for a longer period than
one 3^ear shall be valid unless in writing. Under the English
Statute in which it is expressly provided that the period of the
lease shall be measured from the making thereof leases in futuro
have been held valid though for a longer period than three years
if the time between the making and entry be included. The same
rule has been generally recognized in the United States. Thus, a
parol contract for a lease for a term of one year to begin in the
future,^^ has been held not to be within the statute. Very much
depends upon the language of the local statute. In the American
Statutes the expression "from the making thereof" is usually
omitted. This is the case in New York where by the statute a
parol lease for a term exceeding one year is void. In that state
it has been held that a parol lease for a year to commence in the
future is not an executory contract, but vests a present interest
in the term, and that, this being the case, and the time inter-
mediate the making of the lease and its taking effect in posses-
sion, being no part of the term, a lease for one year to commence
in the future need not be in writing.^^ So it has been held where
the statute provides that no action could be maintained on any
lease for a longer term than one year or upon any agreement

85 Parker v. Mollis, 50 Ala. 411; Ohio St. 427, 54 N. E. Rep. 473,

Atwood V. Norton, 31 Ga. 507; 71 Am. St. Rep. 724; Pinto v. Rin-

Stackberger v. Mosteller, 4 Ind. tleman (Tex. 1906), 92 S. W. Rep.

461; Wolf V. Dozer, 22 Kan. 436; 1033.

Thomas v. McManus, 64 S. W. Rep. «« Ward v. Hasbrouck, 169 N.

446, 23 Ky. Law Rep. 837; Taylor Y. 407, 62 N. E. Rep. 434, affirming

V. Kincaid, 4 Ky. Law Rep. 837; 52 App. Div. 627, 65 N. Y. Supp.

Whiting V. Olhert, 52 Mich. 462, 200; Newton v. Musen, 61 N. Y.

18 N. W. Rep. 219; .Jud v. Arnold, Supp. 61; Becar v. Flues, 64 N. Y.

31 Minn. 340, IS N. W. Rep. 151; 518; Jones v. Marcy, 49 Iowa, 188;

Briar v. Robertson, 19 Mo. App. Sears v. Smith, 3 Colo. 287; Huff-

56; Bieler v. Devoll, 40 Mo. App. man v. Stark,, 31 Ind. 474
251; Gladwell v. Holconibo, 60

FORM AND EXECUTION OF LEASES. 379

which is not to be perforaied within the space of one year from
the making thereof that an oral lease for a year to be begun in
the future is valid. '^'

§ 258. Contracts concerning an interest in land. The Eng-
lish Statute of Frauds provides that "no action shall be brought
whereby to charge any person upon any contract or sale of lands,
tenements or hereditaments, or any interest in or concerning
them, unless the agreement upon which such action is brought,
or some memorandum or note thereof, shall be in writing and
signed by the party to be charged therewith, or some other per-
son thereunto by him lawfully authorized." The expression
"interest in land" as used in the Statute of Frauds has been fre-
quently construed in connection with contracts for the leasing
of land. Thus a contract to grant a lease of a furnished flat is a
contract concerning an interest in land, and the part payment of
the rent is not such performance (unless possession is also taken
by the tenant) as will take the case out of the statute.^* The ma-
terial part of the contract is the occupation of the premises and
the hiring of the personal property is an incident thereto. So a
contract to lease a house, to make alterations therein and to sell
the occupant the furniture and fixtures, is a contract relating to
an interest in the land. The object of the contract is the occu-
pation of the premises, and the sale of the personal property and
the agreement to make alterations are only incidental to it. For
these latter things are valuable only so far as they make the occu-
pation of the house desirable and convenient.^'-* But an agree-
ment by the landlord with his tenant that the tenant may erect

87 Bateman v. Maddox, 86 Tex. to pay, the landlord cannot main-

546, 26 S. W. Rep. 51. Contra, in tain an action against the tenant

Emery v. Boston Terminal Co. for a breach of contract to take

(Mass. 1901), 59 N. B. Rep. 763. the lease or to recover what he

An agreement by which one of the has spent in purchasing the land

parties is to purchase land and on and material for the building.

i^t erect a warehouse which the Bacon v. Parker, 137 Mass. 309.

other is to hire for a term of years ss Thursby v. Eccles, 70 Law J.

at a rent which is to be a certain Q. B. 91, 49 Wkly. Rep. 281; Edge

percentage of the value of the v. Strafford, 1 Cromp. Jer. 391, 1

house is a lease within the Stat- Tyr. 293; Inman v. Stamp, 1 Stark,

ute of Frauds. Hence, where, in N. P. 126.

the course of building certain ad- &» Vaughan v. Hancock, 3 C. B.

ditions and alterations were made 766, 16 L. J. C. P. 1.
in it for which the tenant agreed

380 LAW OF LANDLORD AND TENANT.

buildings on the premises wMcli are to be paid for by the hind-
lord at the end of the term being in substance a sale of fixtures
which are personal property is not an agreement in respect to, or
concerning an interest in land within the statute."" The mere
license to use premises for a particular purpose is not within the
statute. Thus, an agreement by which the owner of a hall per-
mits it to be used for theatrical or other entertainments, he re-
taining the full control of the hall and premises, in which it is
located .is a license and not a contract for the leasing, sale and
conveyance of an interest in the land."^ An agreement by which
an owner permits another person to live rent free on his land on
condition that the owner should have a share of the crops is not
an agreement concerning interest in land."- An agreement
by which an owner of a dock permits the same to be let to parties
requiring the same for repair of vessels, on the payment of en-
trance money for the use of the dock, which is to be forfeited if
the vessel does not enter at the date specified, is not an interest
in land under the statute and is not required to be under seal.®'
The assignment of a parol lease from year to year must be in
writing."* And a contract to procure an assignment of a lease of
a house is a contract for an interest in land and is within the
statute though it was made by one who was neither a lessee nor
had any interest under the lease. "^ An agreement by which the
tenant was to surrender his tenacy to another, and to prevail
upon the landlord to accept the other as his tenant is the sale of
an interest in the land."^ A covenant restricting the use of land

90 South Baltimore Co. v. Muhl- & P. 397; Waddington v. Briston,

bach, 69 Md. 395, IG Atl. Rep. 117, 2 Bos. & P. 452, 2 N. R. 355.
119. 03 Wells V. Kingston-upon-Hull-

81 Johnson v. Wilkinson, 139 Corporation, 44 L. J. C. P. 257,

Mass. 3, 29 N. E. Rep. 62. As to L. R. 10 C. P. 402, 32 L. F. 615, 23

the sale of fixtures not being with- W. R. 562.

in the statute, see Hullen v. Run- »* Botting v. Martin, 1 Camp.

der, 1 C. M. & R. 266, 275; Lee v. 318; Doe d. Hughes v. Jones, 9

Gaskell, 1 Q. B. Div. 700; Greene Mee. & Wei. 372, 1 D. (N. S.) 352,

V. Cole, 2 Wm. Saund. 259c, 259d. 12 L. J. Ex. 265, 6 Jur. 302.
So a contract by a tenant to erect o^ Horsey v. Graham, 39 L. J.

imjirovoments on land being a C. P. 58, L. R. 5 C. P. 9, 21 L. T.

contract for labor and materials is 530, 18 W. R. 141.
not within the statute. Pinner v. o" Cocking v. Ward, 1 C. B. 868,

Arnold, 2 C. M. & R. 613. 5 L. J. C. P. 24.5.

»2 Poulter V. Killingbrick, 1 Bos.

FORM AND EXECUTION OF LEASES. 381

is within the statute of frauds. An agreement the sole object of
which is the creation of such a covenant, would therefore be in-
valid unless in writing. So, too, an agreement to make' a lease
in the future, the intention of which is that there shall be in-
serted in the lease a covenant which in effect shall provide that
the lessee shall sell only the goods produced by the lessor, is
within the statute and if in parol, is not enforcible.*^ A contract
by a landlord who has leased his premises in writing to lay out
certain money in making improvements upon them, the tenant to
pay an increased rent, is a mere collateral agreement. It is not a
contract concerning or relating to an interest in land; because the
tenant by it receives no additional interest in the land. All the
landlord agrees to do is to remove certain articles of personal
property and substitute others in their place in the way of alter-
ation. Nor does the agreement that the tenant is to pay an addi-
tional sum w^hich is called rent alter the case, for this is not rent
in the legal sense inasmuch as it could not be distrained for nor
could the landlord re-enter for its non-payment. The court
also held that there was no presumption that the parties by this
agreement intended to make a surrender of the old lease and to
grant a new lease but that all they meant was making a personal
contract to pay and receive a certain sum per year.^* So upon
the same principle where the premises at the time of the execu-
tion of a written lease are in bad repair and the landlord agrees
to put them in a condition fit for habitation his oral promise is
collateral to the writing and it is not an agreement for or con-
cerning an interest in the land.^^ So, in general it may be laid
down as a rule that all contracts to repair or to furnish a house
which are collateral to a written lease and which are made sub-
sequent thereto, and for which the written lease is a consideration
are not within the statute. The reason for this is that they did
not convey an interest in the land because the tenant has al-
ready acquired all the interest in the land which he had agreed

9T Mausert v. Christian Peigen- term of years must be in writing,

span, 68 N. J. Eq. 671, 63 Atl. Rep. King v. Kaiser, 23 N. Y. Supp. 21,

610, 64 Atl. Rep. 801. A parol con- 3 Misc. 523, 52 N. Y. St. Rep. 487.

tract to make a lease for years is as Donellan v. Read, 3 B. & Ad.

within the statute of frauds. 899.

Smith V. Phillips (N. H.), 43 Atl. so Mann v. Nunn, 43 L. J. C. P.

Rep. 183. An assignment of rent 241, 30 L. T. 526.
due under a written lease for a

382

LAW OF LANDLORD AND TENANT.

to receive and these subsequent contracts are usually made
merely for the purpose of enabling him more conveniently to
enjoy that interest.^ The question has been agitated v^^hether an
oral lease which is good under the second section of the statute
is valid, under the fourth section which refers to contracts ' ' con-
cerning an interest in land." It cannot be denied that a lease
is a contract concerning an interest in land, and hence, if the
fourth section is applicable parol leases for any term are void
though by the second section of the statute parol leases not ex-
ceeding three years are valid. The result of this construction
would be that a lease which would be valid by one section would
be void by another. In endeavoring to reconcile this apparent
inconsistency the English courts have held that parol leases not
exceeding three years from the making were valid and that they
might be sued upon under their character of leases but that be-
fore the entry of the tenant they did not confer the right on the
lessor to sue for damages for not taking possession.- The dis-

1 Morgan v. Griffiths, 23 L. T.
783, L. R. C. Exch. 70; Angel v.
Duke, 44 L. J. Q. B. 78, L. R. 10
Q. B. 174, 32 L. T. 23, 23 W. R.
307. See, also, to the same effect,
Hoby V. Roebuck, 2 Marsh. 433,
7 Taunt. 157, 17 L. R. 477; Nach-
bour V. Wiener, 34 111. App. 237.
The following agreements have
been held to be contracts con-
concerning an interest in land: An
agreement to build a store and
have it ready for occupancy on a
certain date and then to lease it
for a term of years. Eaton v.
Whitaker, 18 Conn. 222, 44 Am.
Dec. 586; Bacon v. Parker, 137
Mass. 309. An agreement that a
party should occupy a meadow for
three years as a compensation for
clearing it. Scoten v. Brown, 4
Har. (Del.) 324. A written con-
tract to sell a stock of goods, the
seller agreeing orally to give the
buyer a three years' lease of the
store room. Strehl v. D'Evers, 66
111. 77. A contract conveying the

right to use for the purpose of
worship a church edifice when the
same is not used by the church.
Brumfield v. Carson, 33 Ind. 94,
5 Am. Rep. 184. A contract for a
pew in a church for a period ex-
tending beyond one year. First
Baptist Church v. Bigelow, 16
Wend. (N. Y.) 28. The following
contracts have been held not to
relate to an interest in land: A
contract with an owner to work
land for a part of the proceeds.
Himesworth v. Edwards, 5 Har.
(Del.) 376. A contract giving the
right to use land as a play-ground
in connection with a school liouse,
so long as the school house should
stand. District Township of Cor-
win V. Morehead, 43 Iowa, 466.
An oral agreement to pay for
board and lodging. White v. May-
nard, 111 Mass. 250, 50 Am. Dec.
28.

- Edge V. Strafford, 1 Cromp. &
Jer. 391.

FORM AND EXECUTION OF LEASES. 383

tinction is of no value because a lease after the lessee enters is
just as much an interest in land as it was before. And if it is
invalid in part it must be totally invalid. The true construction
of the statute seems to be a parol lease not exceeding three years
is good from its beginning and will support an action against the
lessee for rent though no entry has been made upon it.^

§ 259. Extensions and renewals of leases. A tenant who has
the right to a renewal of his lease must exercise that right accord-
ing to the provisions of his lease. His right to a renewal is a
part of his original contract. Though it is called a right to a re-
newal it is not strictly speaking a right to create a new lease but
a right to extend the old lease. Hence, if the tenant exercises his
right to a renewal according to the provisions of his lease his
term is extended so as to bind the lessor without any action,
affirmance or extension on the part of the lesvsor. And the ex-
tension is by virtue of the original lease. There can be no ques-
tion of the application of the Statute of Frauds under such cir-
cumstances. The holding under the new lease is protected by the
fact that the old lease is in writing. The original lease creates
and defines the term! If the tenant elects not to exercise his
right to extend the lease then the term is at an end. If he elects
to extend the lease then the extension is merely a prolongation of
the term of the first lease,* and not the creation of a new term.
Thus, it has been held in connection with a holding over after
the tenant has given a notice of an intention on his part to renew
that the notice itself is not the instrument under which he holds
but that the tenant is holding under the original lease.^ If, how-
ever, during the term or at the termination of a lease, even
though the lease gives the tenant an option for an extension, the
parties shall make a new or supplemental lease, the possession
under the former lease will not take the new lease out of the
statute." "Where the tenant holds over after the expiration of a
written lease it will be presumed that his holding over is under
the former lease. If the new lease is void because in parol the

s Bolton V. Tomlin, 5 Ad. N. E. Sheppard v. Rosenkrans, 1(J9 Wis.
856. 58, 85 N. W. Rep. 199.

4 Norton v. Gale. 95 111. 533. 35 s Baltimore & O. R. Co. v. West,

Am. Rep. 173; McClelland v. Rush, 57 Ohio St. 161. 49 N. E. Rep. 344.
150 Pa. St. 57. 24 Atl. Rep. 354; e Gladwell v. Holcomb. 60 Ohio

St. 427. 54 N. E. Rep. 473.

384 LAW OF LANDLORD AJN^D TENANT.

landlord may treat him as a tenant at will or sufferance and liis
possession will not take the new lease out of statute/ and the
fact that the parties in making a new lease called it an extension
of the former lease does not alone take the case out of the stat-
utes. Thus, where a lease was made between parties to an ex-
isting lease by which the terms of the lease were changed the old
lease was not referred to and portions of land included in it
were not included in the new lease and the terms and privileges
were entirely different it was held that this was not an extension
of the lease but a new contract and being in parol it was within
the statute and it was not binding unless signed by the lessor.*
But, an agreement for the leasing of premises for a period short
of a year with an option in the tenant for an extension or re-
newal of the lease for a period exceeding a year not evidenced
by writing, is not within that clause of the Statute of Frauds
which renders invalid a contract in parol not to be performed
within a year.®

§ 260. Leases by parol which are void under the statute.
By the Statute of Frauds in many of the states leases for a term
exceeding one year not executed in writing are void.^° Hence, if
the lease is for a term short of a year it is valid though not evi-
denced by a writing. An agreement to lease property with the
privilege of a renewal for two years not in writing, is void, un-

7 Crawford v. Wick, 18 Ohio St. Rep. 51; Leavitt v. Stern, 55 111.

190, 90 Am. Rep. 103. App. 416; Butler v. Threlkeld,

«Bulles V. Noyes, 75 Tex. 540, 117 Iowa, 116, 90 N. W. Rep. 584;

12 S. W. 397. Creighton v. Sanders, 89 111. 543;

9 Ward V. Hasbrouck, 169 N. Y. Ragsdale v. Lander, 80 Ky. 61 ;
407, 62 N. E. Rep. 434, affirming Hand v. Osgood, 107 Mich. 65, 64
65 N. Y. Supp. 200, 52 App. Div. N. W. Rep. 867, 30 L. R. A. 379;
627. Phipps V. Ingraham, 41 Miss. 256;

10 Hammond v. Winchester, 82 Herrmann v. Hydeman, 74 N. Y.
Ala. 470, 2 So. Rep. 892; Hosli v. S. 862; Geiger v. Braun, 6 Daly
Yokel, 57 Mo. App. 622; Leavitt (N. Y.) 506; Wilder v. Stace, 15
V. Stem, 55 111. App. 4l6; McCroy N. Y. S. 870, 61 Hun, 233; Id., 16
V. Toney, 66 Miss. 233, 5 So. Rep. N. Y. S. 382, GO Hun, 582; Briles
392, 66 Miss. 233; Carney v. v. Pace, 13 Ired. (N. Car.) 579;
Mosher, 97 Micfi. 554, 56 N. W. Wallace v. Scroggins, 17 Oreg. 476,
Rep. 953; Hayes v. Arrington 21 Pac. Rep. 558; Sausser v. Stein-
(Tenn.), 68 S. W. Rep. 44; Ganter metz, 88 Pa. St. 324; Porter v.
V. Atkinson, 35 Wis. 48; Bateman Groden, 5 Yerg. (Tenn.) 100.

V. MaJdox, 86 Tex. &46, 26 S. W.

FORM AND EXECUTION OF LEASES. 385

der the statute." Elsewhere it is provided by the statute that
a lease for more than three years must be in writing, and hence,
a parol lease for five years is invalid. ^^ Though a parol lease for
more than three years is void, a lessee who enters becomes a
tenant at w'ill for the first year and after that on payment of
rent by the year, a tenant from year to year." Parol leases for
terms less than three years from the making thereof are valid
under the statute of frauds and either party can pursue any
remedy thereunder which may be conferred upon him by virtue
of their character as leases. They do not, however, confer upon
the lessor the right to sue the lessee for damages for not taking
possession, and prior to the entry upon the premises by the les-
see, the whole estate and right of possession remain in the lessor,
the lessee having merely an interesse termini and nothing more.^*
The operation of the statute of frauds as to the duration of
leases is prospective. The statute regards only the time which
the lease has yet to run. Thus, where a lease is to run from year
to year, so long as all the parties please, although when six or
seven years are past it may be said to be, looking backward, an
oral lease for that number of years, still the lease is good, as the
statute has reference only to oral leases for a certain and defi-
nite number of years to come.^^ But this rule does not apply to
leases from year to year, for and during a fixed period of time
which exceeds the statutory limit.^®

11 Rosen v. Rose, 2 Ann. Cases, son v. Albertson, 51 Minn. 333, 53
194, 68 N. Y. St. Rep. 370, 34 N. Y. N. W. Rep. 642.

Supp. 467, 13 Misc. Rep. 565, 2 " Edge v. Stafford, 1 Cr. & J.

Ann. Cases, 194, 68 N. Y. St. Rep. 391; Ryley v. Hicks, 1 Str. 651;

370. Union Banking Co. v, Gittings, 45

12 Crosby v. Wadsworth, 6 East, Md. 181, 197.

602, 2 Smith, 559, 8 R. R. 556; i^ Legg v. Strudwick, 2 Salk.

McClelland v. Rush, 11 Pa. Co. 414; Birch v. Wright, 1 T. R. 378;

C. R. 188. Raynor v. Drew, 72 Cal. 307; Robb

"Richardson v. Gifford, 3 N. & v. San Antonio St. Rep., 83 Tex.

M. 325, A. & E. 52, 3 L. K. J. B. 392, 18 S. W. Rep. 707.

122; Beale v. Sanders, 3 Bing. N. i« An assignment of a lease

C. 850, 5 Scott, 58, 3 Hodges, 147, v/hose unexpired term is longer

6 L. J. C. P. 283, 1 Jur. 1083. But than a year is within the statute,

it has been held that a lease void Chicago Attachment Co. v. Davis

under the statute cannot be used Sewing Machine Co. 111. ,

for the purpose of establishing a 31 N. E. Rep. 438. An oral lease

tenancy from year to year. John- of farm land which requires the

386 LAW OF LANDLORD AND TENANT.

§ 261. The character of the writing. The writing which is
required to take the case out of the statute need not have been
executed contemporaneously with the transaction/" Any writ-
ing executed by either of the parties intended to establish a
contract may be given in evidence as a memorandum under the
statute with parol evidence of conversations between the parties
to the lease so far as is necessary to explain the subject matter.^'
Thus, where the parties to a proposed lease have been negotiating
for some time and the purpose of the use of the ground was for
strawberry culture, a letter written by the tenant to the land-
lord asking whether he could have the land on the terms offered,
to which the landlord replied, "set your strawberries," was
held to be a sufficient memorandum to take the case out of stat-
ute.^' So, also, letters,-'' and telegrams,-^ if signed by the parties
to be charged may be sufficient evidence of a written contract
within the meaning of the statute though they may have to be
supplemented by parol evidence or by the proof of other writing
not signed.-- The writing, however, in order to be operative as
a memorandum, must be something more than a mere proposal
for a tenancy. The writing must describe the property with
reasonable certainty,-^ the duration of the term,-* the rent to

tenant to sow it in wheat, whose v. Marquette, etc., Co., 32 Mich,

term is one year from the spring, 274; White v. Hay, 72 L. T. 281.
is invalid on account of the fact 21 Palmer v. Marquette, etc., Co.,

that the tenant has the implied 32 Mich. 274.

right to enter on the land three 22 Loomer v. Dawson, Cheeves

months after the end of the year (S. Car.) 68; Buxton v. Rust, L.

to reap the crop. Carney v. R. 7 Exch. 1; Barker v. Allen, 5

Mosher, 97 Mich. 564, 56 N. W. H. & N. 61; Smith v. Neale, 2 Com.

Rep. 935. Bench (N. S.) 67; Reuss v. Picks-

17 Learned v. Wannemacher, 9 ley, L. R. I. Exch. 342; Warner v.

Allen (Mass.) 416. Willington, 3 Drew, 523, 25 L. J.

i« Shippey v. Derison, 5 Esp. 10; Ch. 662, 4 W. R. 531, 2 Jur. (N.

T.owther V. Carll, 1 Vem. 221; Sul- S.) 433; Felthous v. Bindley, 11

h van's Estate, 23 L. R. Ir. 255. C. B. (N. S.) 869; Gibson v. Hol-

19 Lindley v. Tibbal, 40 Conn. land, L. R. 1 C. P. 1.

522. 23 Lancaster v. De Trafford, 31

20 Alabama Gold L. L Co. v. L. .L Ch. 554; Dolling v. Evans,
Oliver, 82 Ala. 417, 2 So. Rep. 443; 15 W. R. 394; Ogilvie v. Foljambe.
Tallman v. Franklyn, 14 N. Y. 17 R. R. 13, 3 Mer. 53.

584; Parkhurst v. Van Cortlandt, 2+ Bayley v. Fitzmaurice, 9 H. L.

14 .Johns. (N. Y.) 15; Gibson v. Cas. 78, 6 .Tur. (N. S.) 124. 3 L. T.
Holland, L. R. 1 C. P. 1; Palmer 69. 8 E. & B. 664; Clinan v. Cook,

FORM AXD EXECUTION OF LEASES. 387

be pa.id,-^ and the names of the parties.-® Though parol evidence
will be received in connection with the writing in order to ex-
plain it by showing the facts or circnmstances by which its exe-
cution was surrendered, yet the terms necessary under the stat-
ute to be inserted in the memorandum cannot be supplied by
parol. A memorandum of this character to take the case out of
the statute, must be wholly in writing and cannot be shown
partly in writing and partly by parol.-' Letters and other com-
munications passing between the parties during the negotiations
for a lease may be connected by parol evidence even where they
do not refer to one another and where they are thus connected
they may constitute a sufficient memorandum in writing of an
agreement to make a lease to satisfy the statute of frauds. ^^
Thus, a letter which stated that the term was to be for twelve
years but not mentioning the date of its commencement and sug-
gesting certain covenants to be similar to those conditions in
another lease is not sufficient as a memorandum.-^ For an exec-
utory contract for a lease does not satisfy the provisions of the
statute of frauds, unless it can be collected from it on what date
the term is to begin. There is no presumption that the term is
to commence on the date of the agreement in the absence of
proof to that effect.^" If the commencement of the term can be
gathered from the agreement considered as a whole, which may
be supplemented by evidence of the date when the tenant went
into possession, the memorandiun may be sufficient to satisfy the
statute."^ The statute requires signing, but its requirement is
complied with by the insertion of the name in the instrument
in any portion of it in such a manner as to authenticate it.'-

1 Sch. & Lef. 22; Hughes v. Parker. 2- stead v. Dowker, 10 Ad. & El.

8 Mee. & Wei. 244; Gordon v. 57.

Trevelyan, 1 Price, 64; Dolling v. s'^ Bauman v. James, L. R. 3 Ch.

Evans, 15 W. R. 394; Phelan v. 508, 18 L. T. 424, 16 W. R. 877.

Tedcastle, 15 L. R. Ir. 169. -'^ Cartwright v. Millar, 36 L. T.

25 Wain V. Warlters, 5 East, 10. 398.

28 Champion v. Plummer, 5 Esp. -^^ Marshall v. Berridge, 51 L. J.

240; Lang v. Henry, 54 N. H. 57; Ch. 329, 19 Ch. D. 233, 45 L. T.

Williams v. Lake. 2 E. & E. 349; 599, 30 W. R. 93, 46 J. P. 279.

Williams v. Jordan, 46 L. J. Ch. si Lander v. Bagley's Contract,

681, 6 Ch. D. 517, 26 W. R. 230; 61 L. J. Ch. 707, 1892, 3 Ch. 41, 67

Warner v. Willington, 3 Drew, L. T. 521.

523. 32 Ogilvie v. Foljambe, 3 Mer. 53.

388

LAW OP LANDLORD AND TENANT.

But the mere insertion of a name of a party being written in
the body of an instrument by himself is not a sufficient signing
under the statute, in the absence of evidence that proves he in-
tended ^^ this insertion of his name to be a signature.^* An
agreement for a lease though signed by both parties is not valid
under the statute of frauds, so that it can be specifically per-
formed where it was not intended to be a final contract and so
expressly given, "subject to the preparation and approval of a
formal contract. ' ' ^^

§ 262. Effect of performance in taking tlie lease out of the
statute. A part performance of an oral lease by the lessee by
his entry, making improvements and paying rent, will take the
case out of the operation of the statute of frauds to a certain ex-
tent. The entry of the tenant under a lease which is invalid
under the statute of frauds creates a lease at will which is
turned into a lease from year to year upon the landlord's accept-
ing rent by the year.^® So the payment of rent by a tenant in
possession at an increased rate is a sufficient part performance

17 R. R. 13; Caton v. Caton, 56
L. J. Ch. 886, L. R. 2 H. L. Cases,
127, 6 W. R. 1.
»3 Stokes V. Moore, 1 Cox, 219.

34 Under the English statute of
frauds an agreement to make a
lease must be signed at the end
thereof (Selby v. Selby, 3 Mer. 2,
17 R. R. 1), or the name of the
party to be charged must have
been inserted in some place in the
instrument in such a way as to
authenticate it. Ogilvie v. Fol-
jambe, 3 Mer. 53, 17 R. R. 13;
Propert v. Parker, 1 Russ. & M.
625; Caton v. Caton, 36 L. J. Ch.
886, L. R. 2 H. L. Cas. 127, 16 W.
R. 1.

35 Winn V. Bull, 47 L. J. Ch. 139,
7 Ch. D. 29, 26 W. R. 230. Where
the statute requires "an agree-
ment made in writing signed by
the parties thereto," a writing
which is not signed is invalid.
Combs V. Midland Transfer Co.,

58 Mo. App. 112. A writing which
is subsequently amended by parol
in respect to its details does not
comply with the statutes. Wiess-
ner v. Ayer, 176 Mass. 425, 57 N.
E. Rep. 672.

36 stantz V. Protzman, 84 111.
App. 434; Donovan v. Brewing
Co., 102 Mo. App. 427, 429, 76 S.
W. Rep. 175; Bless v. Jenkins, 129
Mo. 647; Nelson v. Brown, 140 Mo.
580; Hosli v. Yokel, 58 Mo. App.
169; Tiefenbrine v. Tiefenbrine,
68 Mo. App. 253; Davis v. Bald-
win, 66 Mo. App. 577; William
Wicke Co. v. Kaldenburg Man-
ufacturing Co., 46 N. Y. Supp. 937,
21 Misc. Rep. 79; Clarke v. Cin-
cinnati, 1 Ohio Dec. 10, 1 Jo. 53;
Grant v. Ramsey, 7 Ohio St. 157;
Moore v. Beasley, 3 Ohio, 294;
Wallace v. Scoggin, 17 Oreg. 476,
21 Pac. Rep. 5.^>8; Doe d. Brammell
v. Collinge, 7 C. B. 939, 18 L. J.
C. P. 305, 13 Jur. 791

FORM AND EXECU-nON OP LE.^ES. 389

on an agreement for a lease to satisfy the statute of frauds." In
any ease the performance which will take a parol lease out of
the statute of frauds and make it a valid lease so far as it has
been performed, must be a performance as will prevent the per-
forming party from being placed in his former position.^® A
lease which is within the statute of frauds, executed by an agent
without authority in writing, may be ratified by the owner, but
to avoid the operation of the statute of frauds, the ratification
ought to be in writing. It seems that the mere knowledge of the
principal that the property has been leased by an agent for a
term which is within the statute, or his action in receiving rent,
or permitting improvements to be made by the tenant, is not suf-
ficient to take the lease out of the statute. But the oral ratifi-
cation of the lease of an agent made without authority, gives the
tenant an estate at will which under the general rule becomes
an estate from year to year by possession from year to year, and
the payment of a yearly rent.''' The receipt of rent by the bene-
ficiary of a trust after the expiration of the lease which gave the
tenant a right to renew is not binding on the trustee. The ac-
tion of the beneficiary is not such a performance of the covenant
to renew as will take the case out of the statute if it be held
that the statute applies. Particularly would this be true where
the trustees had refused to renew the lease and her action was
without their knowledge or authority.*"

§ 263. The recording of leases. In almost every state of the
Union it is required by statute that transfers of land, or of any
interest therein, including leases, except for certain short terms,
shall be recorded in the county in which the premises are located.
These statutes also provide that no instrument unless it is ac-
Imowledged, shall be admitted to record. Their object is to se-
cure to the person claiming under the recorded instrument the
priority over subsequent purchasers or incumbrancers to which

37 Nunn V. Fabian, L. R. 1 Ch. ss Merchant's State Bank of

App. 35; Miller v. Sharp, 6S Law Fargo v. Ruettel, 12 N. D. 519, 97

J. Ch. 322, 1 Ch. 622, 80 L. T. N. N. W. Rep. 853, 855.

S. 77, 47 Wldy. Rep. 268. The •■?9 McDowell v. Simpson, 3 Watts

contrary has been held, however, (Pa.) 129.

in the case of a tenant who pur- .^o Winslow v. Baltimore & O.

chases the land occupied by him R. Co., 188 U. S. 646, 23 Sup. CL

by a contract in parol. Lewis v. 443, 47 L. ed. 635.
North (Neb.), 87 N. W. 312.

390

LAW OF LANDLORD AND TENANT

he is entitled and at the same time to protect subsequent bona
fide purchasers for value against secret liens and contracts of
Avhich they have no knowledge. If a lease required by the stat-
ute to be recorded is not recorded, it is void as against all sub-
sequent purchasers in good faith and for value, not having ac-
tual notice of its existence, whose conveyances are duly recorded
before it. The terms of the statute differ in respect to the leases
which must be recorded.'*^ In some of the states it has been ex-
pressly provided that no estate in land exceeding in duration a
period specified shall pass unless the conveyance thereof shall
be acknowledged and recorded.*- In the absence of such a stat-
ute an unrecorded lease, otherwise valid, is good between the
parties to it.*^ For the recording is no part of the execution of

41 In California all leases for
more than one year (Odd Fellows'
Sav. Bank v. Banton, 46 Cal. 603;
Jones V. Marks, 47 Cal. 242) must
be recorded. In Kentucky five
years. Locke v. Coleman, 4 T. B.
Mon. (Ky.) 315. In Louisiana an
agreement not to sublet must be
recorded. Arent v. Bone, 23 La.
Ann. 387, 388. In Massachusetts,
by Pub. St. c. 120, § 4, a lease for
seven years or more. Collins v.
Piatt (Mass. 1902), 63 N. E. Rep.
946; Chapman v. Gray, 15 Mass.
439, 444; Toupin v. Peabody, 1G2
Mass. 473, 39 N. E. Rep. 280. In
New Jersey leases for two years
or more. Lembeck Co. v. Kelly,
63 N. J. Eq. 402. In New York
lor three years and upwards.
1 R. S. 762, § 38; Jokinsky v. Mil-
ler, 88 N. Y. Supp. 928; Beebe v.
Coleman, 8 Paige (N. Y.) 392. In
Pennsylvania leases for less than
twenty-one years, if accompanied
by possession, need not be re-
corded. Williams v. Downing, 18'
Pa. St. 60. See City Council of
Charleston v. Page, S.peers (S.
Car.) Eq. 159. In Vermont a lease
for more than one year. Buswell
V. .Marshall, 51 Vt. 87. In Wa.sh-

ington an assignment of a lease
need not be recorded. Tibbals v.
Iffland, 10 Wash. 451. A term to
begin in futuro, though for less
than seven years, is within a stat-
ute requiring leases for more than
seven years to be recorded if the
tei-m is to endure "for more than
seven years from the making
thereof." Chapmon v. Gray, 15
Mass. 439, 444. By statute, in
Ohio, leases of surplus water of
the canals and of land connected
therewith must be deposited and
recorded in the office of the board
of public works. Emmitt v. Lee,
50 Ohio St. 662, 35 N. E. Rep. 794.
A lease for a term of ten years
must be recorded under the stat-
ute. Westchester Trust Co. v.
Plobby Bottling Co., 185 N. Y. 577,
78 N. E. Rep. 1114, affirming 102
App. Div. 464, 92 N. Y. Supp. 482.

42 Van Ness v. Hyatt, 28 Fed.
Cas. 16,867, 5 Cranch, C. C. 127,
affirmed in 13 Peters (U. S.) 294,
10 Law. ed. 168; Anderson v.
Critcher, 11 Gill & J. (Md.) 450,
32 Am: Dec. 72.

43 Barnum v. Landon, 25 Conn.
137, 149; Johnson v. Phoenix Life
Ins. Co., 46 Conn. 92; Lake v.

FORM AND EXECUTION OF LEASES.

391

the leaso but is only a precaution which is intended to protect
those who may be injured by the subsequent conduct of the par-
ties to it.^* An unacknowledged and unrecorded lease may be
valid as against persons not parties to it if they shall have actual
or constructive notice of it. The possession of the lessee under an
unrecorded lease is constructive notice not only of possession but
of the title and rights of the lessee to an intending lessee or pur-
ichaser.*^ AVhere a statute requires actual notice of a lease to be
given, constructive notice is not enough. In such a case, by ac-
tual notice is meant express information communicated to, or
personal service of a copy of the lease upon the person inter-
ested.^®

§ 264. The construction of the statutes requiring record of
leases. These statutes are remedial in their character, and
upon general rules and principles of statutory construction, ap-
plicable to remedial statutes their general puipose and intention
are to be given etfect to in all cases which are reasonably within
their terms. The inclination of the courts is to extend their

Campbell, 18 111. 106; Wilhelm v.
Mertz, 4 G. Greene (Iowa> 54;
Anthony v. New York P. & B. R.
Co., 162 Mass. 60, 61, 37 N. E. Rep.
780; Bramhall v. Hutchinson (N.
J. 1886), 7 Atl. Rep. 573; Thomas'
Lessee v. Blackemore, 5 Yerg.
(Tenn.) 113; Buswell v. Marshall,
51 Vt. 87; Smythe v. Sprague, 149
Mass. 10; Earle v. Fiske, 103
Mass. 491; Ladnier v. Stewart
(Miss. 1905) 38 So. Rep. 748.

44 Barnum v. Landon, 25 Conn.
137, 149. A statute providing that
unrecorded deeds of lease shall
be Invalid as to parties without
notice does not invalidate them
between the parties, or against a
person not claiming an interest
in the land. Anthony v. New
York P. & B. R. Co., 162 Mass.
60. 37 N. E. Rep. 780. In :\Iassa-
chusetts it seems to have been a
rule of practice that a deed must
be recorded to be admissible in
evidence. Where there was no

evidence of actual possession it
was held in an action of trespass
that an unrecorded deed of wild
land was not such evidence of
possession as would enable the
plaintiff to maintain his action.
Estes V. Cook, 22 Pick. (Mass.)
293. AVhere a lessee under a lease
for a term sued a railroad com-
pany for damages caused by the
destruction of building by fire
caused by sparks from the defend-
ant's locomotives, record at any
time before the trial was finished,
or perhaps before judgment was
rendered, is sufficient. Anthony
v. New York, etc., Co., 162 Mass.
60, 62, 37 N. E. Rep. 780.

■T. Wilhelm v. Mertz, 4 G. Greene
(Iowa) 54, 55; Uhl v. May, 5 Neb.
157; Weaver v. Coumbe, 15 Neb.
167, 170.

■""' Hoping V. Burnam, 2 G.
Greene (Iowa), 39: Wilhelm v.
Mertz, 4 G. Greene (Iowa) 54, 56.

392

LAW OP LANDLORD AND TENANT.

operation so far as may be consistent with sound principles of
construction.*'' The term of years mentioned in a statute leases
for wliich must be recorded means not only the term directly
created ah initio by the lease but also any possible term which
may be created by an extension, or a renewal or otherwise.*^ A
lease for a term of years is a conveyance of lands to a purchaser
of the same which is entitled and required to be recorded. A
lessee is unquestionably a purchaser, for there are but two ways
in which a right to the possession of land can be acquired, viz.,
either by descent or by purchase. Obviously a lessee does not
take by descent but by purchase which occurs where a man takes
land or an interest in land by his own act or agreement.** So,
in construing statutes which permit or require "conveyances"
to be recorded, it has generally been held that leases for terms
of years which by the statute of frauds are required to be in
writing are "conveyances" within the meaning of the statutes.^''

*7Toupin V. Peabody, 162 Mass.
473, 476, 39 AtL Rep. 280.

*8 A statute which, provides that
a lease for seven years from the
making must be recorded means
the utmost term which the lessee
can claim under the lease whether
the instrument directly demises
a term for seven years or longer
than seven years, or provides for
its indirect creation by an agree-
ment for a renewal at the option
of the lessee. The intention of
the statute is that a 1)0710 fide pur-
chaser may rely with certainty
upon the fact that no instrument
which does not appear of record,
and of which he does not have ac-
tual notice, can give a lessee the
right to any longer term than
seven years from the mailing of
the instrument. A lease for five
years with the privilege of a re-
newal for five years more is as
much within the purview of the
statute, and of the mischief which
it was meant to remedy, as a lease
for a term of ten years and the

reasons for requiring the latter
to be recorded apply equally to
the former so far as the renewal
term is concerned. Hence it fol-
lows that any extension, or second
term, or an agreement for a re-
newal which will carry the pos-
session of the lease to more than
seven years from the making of
the instrument, is within the
meaning of the statute. Toupin
V. Peabody, 162 Mass. 473, 476, 39
N. E. Rep. 280.

■in Spielmann v. Kleist, 36 N. J.
Eq. 199, 202. See also, Milliken
V. Faulk, 111 Ala. 658, 660, 20 So.
Rep. 594. And see contra, Bram-
hall V. Hutchinson (N. J.), 7 Atl.
Rep. 873.

60 Jones V. Marks, 47 Cal. 242;
Commercial Bank v. Pritchard,
126 Cal. 600; Garber v. Gianella,
98 CaL 527; Talley v. Alexander,
10 La. Ann. 627; Summer v. Clark,
30 La. Ann. 436; Chapman v. Gray,
15 Mass. 439; Toupin v. Peabody,
162 Mass. 473, 476, 39 Atl. Rep.
280; Spielmann v. Kleist, 36 N. J.

FORM AXD EXECUTION OF LEASES. 3'93

Accordingly it is apparent that the word "deeds" in a statute
which enacts that deeds shall be invalid or void as to subsequent
purchasers or incumbrances unless they are recorded, evidently
includes all instruments by which an interest in, or the title to
land, may be in any way affected either in law or in equity. But
the word does not include wills or leases which are by implica-
tion exempt from the necessity of being recorded by statut^.'^^

§ 265. The effect of recording a lease upon the rights of a
subsequent lessee. A recorded lease is constructive notice to a
subsequent prospective lessee of the premises in his dealings with
the lessor to the same extent and with the same effect as in the
case of any other purchaser. So, too, a lessee may acquire such
actual notice of a prior unrecorded lease as will estop him to
dispute the rights of a lessee in possession and this notice will
have precisely the same effect, so far as he is concerned, as
would the lease being recorded.^- The subsequent lessee who
finds a person in possession claiming as a lessee is at once put
upon inquiry to ascertain the occupant's rights and he will be
presumed thenceforth to have notice of all facts which he might
have ascertained by inquiry of the lessor with whom he is dealing
or by inquiry of the person claiming as a lessee. Where a les-
see executes a written lease, which in express terms is made sub-
ject to the rights af a prior lessee and he also knows what the
latter 's rights were, the lessee takes his lease subject to all the
rights of the prior lessee, including his right to a renewal.^'
And though the later lessee himself have no knowledge of the
existence of a prior unrecorded lease, he will be presumed to
have actual notice of it and of its contents where these are
brought to the knowledge of his agent acting for him in the
transaction.^*

Eq. 199, 203; Lucas v. Sunbury, the prior lease provides for a writ-

etc, R. Co., 32 Pa. St. 458. See ten notice to renew, the subse-

Northwestern Ohio Natural Gas quent lessee cannot require it of

Co. V. Tiffin, 50 Ohio St. 420, as to the prior lessee.
lease of natural gas land. -i Thompson v. Christie, 13S Pa.

BiAmes v. Miller, 65 Neb. 204, St. 230, 248, 20 Atl. Rep. 434, 11

91 N. W. Rep. 250. L. R. A. 236, 27 W. N. C. 7. In

62 Weaver v. Coumbe, 15 Neb. this case a lessee holding under

167. an unrecorded lease entered and

53 Clarke v. Mitchell, 51 N. H. made improvements by drilling an

415, 418, holding also that unless oil well. Subsequently the land-

394 LAW OF LANDLORD AND TENANT.

§ 266. The effect of the rscord as notice. Notice of a lease
derived from its record is notice of its contents. As soon as one
acquires constructive notice of a lease which has been recorded,
he is presumed to have notice of every word which is written in
it.^^ Thus a purchaser of the premises from the lessor is bound
by a covenant to renew contained in a lease which was recorded
prior to his purchase and when the time has arrived when the
lessee shall have the right to a renewal, he is bound to grant
j^ 56 rpj^^ failure to copy the lease in the record does not destroy
the effect of the recording as constructive notice. A lease, if it
has been properly acknowledged and delivered to the recording
officer for record is thereafter constructive notice to everyone,
though, through the neglect of a clerk or copyist, it was never
actually copied into the records. It is an incumbrance which a
purchaser at a foreclosure sale under a mortgage executed sub-
sequently to the lease is bound to take notice of."

§ 267. As against the creditors of the lessor and persons
claiming under him. By the operation of the various statutes
in the several states of the Union requiring conveyances of land
or of interests therein to be recorded, unrecorded leases are void
as against creclitors of the lessor.^* So, too, under these statutes

lord, acting on his attorney's ad- delinquent or careless purchaser
vice, made another lease of the or mortgagee shall be assumed to
premises to the law partner of the know what he would have learned
attorney, which lease was re- had he explored those sources of
corded. The court held that the knowledge which the law has pro-
first lessee could not be ousted in vided for his information. The
ejectment by the second lessee, fact that the term granted by the
who had, by construction of law, lease had expired before the de-
knowledge or notice of all the fendant took her mortgage can-
facts which had been brought to not. in my judgment, change the
the attention of his partner during rights of the parties. The record
the transaction. of the lease was an important

•"■•'• Spiclmann v. Kleist, 36 N. J. link in the chain of title." By the

Eq. 199, 206. court, in Spielmann v. Kleist, 36

r-o Taylor v. Stibbert, 2 Ves. 439; N. J. Eq. 199, on page 206.

Hall V. Smith, 14 Ves. 426. "Con- 'm Reid v. Town of Long Lake,

structive notice, under the regis- 89 N. Y. Supp. 993, 44 Misc. Rep.

try acts, is as efficacious as ac- 370.

tual notice. The purpose of those ss Clift v. Stockdon, 4 Lift. (Ky.)

acts Is to make such notice the 215, 216; Flower v. Pearce, 45 La.

equivalent in all respects of ac- Ann. 853, 13 So. Rep. 150. Where

tual notice. They declare that a Ihe statute invalidates a lease for

FORM AND EXECUTION OF LEASES. 395

unrecorded leases which come within their operation are void as
against mortgagees of the lessor,'^^ or as against his vendor or
other purchaser for value in good faith who buys without actual
notice.®" The record of the lease, in order to constitute a valid
constructive notice of the rights of the lessee under it, to crops
growing or to be grown on the land during the existence of the
lease as against a subsequent chattel mortgagee of crops must
definitely describe the land leased.*'^

§ 268. The effect of recording a lease not required to be
recorded. The recording of a lease which is not by the statute
entitled or required to be recorded is a mere voluntarj^ act which
is m no way effective to give constructive notice to parties sub-
sequently dealing with the premises.''- The record of a lease
not permitted to be recorded does not make it an incumbrance
upon the premises of which a subsequent purchaser is bound to
take notice. But the possession of the tenant under the lease
not entitled to record is actual notice to the purchaser, whether
he be a lessee or vendee, and he will be bound by all the facts
he shall ascertain upon inquiry or which he might have obtained
where he fails to make a reasonable inquirj'.®^

more than five years when unre- N. E. Rep. 280; Belding v. Flynn
corded, a lease for ten years is (Ark.), 15 S. W. Rep. 184; Ken-
totally invalid, and is not good dall B. & Shoe Co. v. Bain, 55 Mo.
as against a creditor of the lessor, App. 264.

where it has less than five years <''i Thurlough v. Dresser, 98 Me.

to run. Clift v. Stockdon, 4 Litt. 161, 56 Atl. Rep. 654.

(Ky.) 215, 216. e- Spielmann v. Kleist, 36 N. J.

59 City Council of Charleston v. Eq. 199, 203; Graves v. Graves, 6

Page, Speers (S. C.) Eq. 159. Gray (Mass.) 391; Villard v. Rob-

eoMilliken v. Faulk, 111 Ala. erts, 1 Strob. Eq. (S. Car.) 393.

658, 20 So. Rep. 594 ; Brown v. «•'! Griffin v. Baust, 50 N. Y.

Matthews, 3 La. Ann. 198; Toupin Supp. 905, 26 App. Div. 553.
V. Peabody, 162 Mass. 473, 476, 39

CHAPTER XI.
THE PROPERTY WHICH IS INCLUDED IN THE LEASE.

§ 270. The scope of this chapter.

271. Property included.

272. The privileges of a tenant of a part of a building.

273. Description of leased premises by street number.

274. Exclusive right of the lessee of a hotel to use a particular name.

275. The tenant's right to light and air coming through his front

and rear windows.

276. Rights as to the use of light and air as between the proprietors

of adjoining premises.

277. The right of a tenant to use outside walls.

278. The use of roof for advertising purposes.

279. Tenant's right to show windows.

280. Easements of egress and ingress.

281. Tenant's right to use of stairways and halls.

282. The right to use an elevator.

283. Electric light as an appurtenant,

284. Easement of water supply.

285. The riparian rights of the lessee.
28G. Right of the tenant to accretion.

287. Ice forming on land demised.

288. Lease of a mill or of a mill privilege.

289. Action for damages for the violation of an easement.

290. The protection of the tenant's easements by an injunction

291. Construction of the word "appurtenances." The general rule.

292. Things which have been held not to pass as appurtenances.

293. Meaning of the word "half."

§ 270. The scope of this chapter. In this chapter will be
considered the extent of the rights of the tenant in connection
with the use which he shall make of the demised premises. The
numerous benefits which are comprised in the tenant's enjoy-
ment of the premises will be distinguished and analyzed and the
extent and character of these benefits determined. Under this
head will come the various easements which are so frequently
connected with the enjoyment of the possession of real estate,
such as the right to light and air; the right to use water; rights
of way, and certain other rights which are peculiarly modern.

PROPERTY WHICH IS INCLUDED IN THE LEASE. 397

In determining these rights as regards to tenant's possession,
many cases will be cited which have not arisen between landlord
and tenant. This is particularly the case in the section where
the meaning of the word "appurtenance" is discussed, for it is
considered important in connection with the above topics to dis-
cuss at length the meaning which the courts by construction and
interpretation have given to this word which is of such frequent
use in connection with the renting of real property.

§ 271. Property included. A lease of a building eo nomine
is a lease of the land on which the building stands.^ So, the
lease of a building conveys the lands under its eaves and projec-
tions,^^ and to the middle of a private way in the rear the
fee of which is in the owner.^^ But by a lease of apartments or
a floor in a town for trade purposes or dwelling, the lessee takes
only such interest in the subjacent land as depends upon his en-
joyment of the premises rented and necessary thereto.^ The
word premises used in a lease may have various meanings ac-
cording to the circumstances. In a contract to sell premises
known by street number, it would presumptively include the
land. Its meaning in a lease must be determined from the con-
text and the character of the property. Thus a lease of the
premises shown by the street number which apparently includes
the whole house is a lease of the land and of the yards and gar-
dens appurtenant if any there be. But a lease of the premises
described as the first or second floor or the like is not a lease of

1 McMillan v. Solomon, 42 Ala. 2 McMillan v. Solomon, 42 Ala.

Sf.G, 94 Am. Dec. 654; Hosher v. 356, 94 Am. Dec. 654; Seidel v.

Hestermann, 58 111. App. 265; Bloeser, 77 Mo. App. 172. A lease

Sherman v. Williams, 113 Mass. of a dwelling house or other

481, 484, 18 Am. Rep. 522; Bacon building carries with it to the

V. Bowdoin, 22 Pick. (Mass.) 401; tenant the right to use the land

Hooper v. Farnsworth, 128 Mass. which lies under the eaves and

487, 488; Lanpher v. Glenn, 37 projection of the building if that

Minn. 4, 33 N. W. Rep. 10. land is owned by the lessor an)d

la St. Louis Public Schools v. where the lessor under such cir-
Hillingsworth, 34 Mo. 191; Sher- cumstances, subsequently consent-
man V. Williams, 113 Mass. 481, ed to the erection of a wall thereon
18 Am. Rep. 522. or to any use of it by another it

lb Hooper v. Farnsworth, 128 is an eviction so far as the tenant

^lass. 487, 488; Rogers v. Snow, is concerned. Sherman v. Wil-

118 Mass. 118; Gear v. Barn um, 37 liams, 113 Mass. 481, 484.
Conn. 229.

398

LAW OF LAND1X)RD AND TENANT.

any land and when the premises are destroyed, the term is at an
end.^ And where the premises leased in a lease of city property
is described by street number "including- certain stories over the
same with the buildings in the rear," it is a lease of buildings
and the lessee takes no interest or estate in the land.* The lease
of a barn without language added to it to extend its meaning,
passes only the land upon which the bam stands. It will not
pass a lot surrounding the barn containing several acres, where
the occupation of the lot was not necessary to the full enjoy-

3 Snook & Austin Furniture Co.
V. Steiner, 117 Ga. 363.

4 Snook & Austin Furniture Co.
V. Steiner, 117 Ga. 363, 43 S. E.
Rep. 775. An agreement in writ-
ing to lease for a term "ttie Adams
House, situate on Washington
Street in Boston/" may be proved
by parol to have been meant to
include only so much of the build-
ing as was fitted up as a hotel, by
the name of the "Adams House,"
and not the separate shops which
occupied the whole of the ground
floor except the entrance. The
question is what was included in
the words "Adams House?" It
was not described as a hotel, nor
does the fact that it was built on
the site of a former tavern show
that it was such. There is no
ambiguity on the face of the con-
tract. But an ambiguity is at
once raised when it is shown in
order to identify the subject mat-
ter that there is an Adams House
and that a part of it has been
used for hotel purposes and that
certain other parts have been %
used as shops, let to separate ten-
ants, with no interior connection
or any <omniunication with the
part of the building occupied and
used as a hotel except that all are
under one roof. To say that
'"house" means the whole of the

house would be plausible if the
term were used in its generic
sense as "my house, situated in"
such a street or town. Here the
word is used as a part of a proper
name. If it were a conveyance
in fee of the "Adams House" the
implication would be very strong
that every thing placed upon its
site was included. But a lease is
a different matter and raises an-
other question as the hotel part
may be leased and used to advan-
tage independent of the stores and
vice versa. This is very frequently
done in cities. The case is one of
a latent ambiguity. Where the
very concise and plain description
of the property in the lease was
applied to subject it was found
there were two subjects, viz., the
site and the house built on it and
also a tenement consisting of
suites of apartments constituting
the hotel proper and excluding the
stores not leased or used with it
down to this date. Parol evidence
was admissible to show that the
stores were wholly detached with-
out any interior communication
with the whole and built under
and not in that portion of the
structure which had been used
and occupied as a hotel under the
name "Adams House." Sargent v.
Adams, 69 Mass. 72, 80.

PROPERTY WHICH IS INCLUDED IN THE LEASE.

399

ment of the use of the baiii.^ The demise of a "furnished house
and premises with gardens, pleasure grounds, coach house and
stable thereto belonging" does not include a meadow adjoining
the premises." A garden or court yard is usually considered an
incident or appurtenant of the house. Hence, by the demise or
lease of the house as such, a garden or courtyard will pass to
the tenant. He will be permitted, however, to use the garden or
courtyard only for such purposes as are proper and appropriate
to them. He may use all the garden as a garden as well as for
a passage to other parts of the premises, but he cannot divert the
garden or courtyard from its former or proper use by build-
ing upon it, nor on the other hand, can the lessor build upon it
while it is in the possession of the tenant.^ A lease of certain

5 Bennet v. Bittle, 4 Rawle (Pa.)
339.

6 Minton v. Geiger, 28 L. T. 449.
- Doyle V. Lord, 64 N. Y. 432;

Kidder v. West, 3 Lev. 167; Bet-
tisworth's Case. 2 Co. 32a; Co.
Litt. 5b; Com. Dig. Grant E. 6;
Shep. Touch. 94; Clements v. Col-
lins, 2 T. R. 502. Upon the ques-
tion whether the use of a yard
and its conveniences passes by a
demise, see construed in Hebbert
V. Thomas, 1 C. M. & R. 861, 5 Tyr.
503, 1 Gale, 53. A very curious
case arose in England under the
following circumstances. Certain
land had been leased to a gas com-
pany for use in its business and
while it was in their hands and
being iised by them there was
found buried in the land an an-
cient boat of rather rude construc-
tion, which, in the opinion of per-
sons qualified to know, was up-
ward of 2,000 years old. From
the facts and situation of the boat
it had evidently been abandoned
by its original owners on the
banks of a river and had become,
in the course of time, buried in
the earth and had so remained for
many centuries until dug out by

the employees of the gas company
who was the tenant of the land.
The tenant claimed it on the
ground that it had become a min-
eral, but the court in determining
the case treated this claim as ab-
surd. On the other hand, the
court treated with equal indiffer-
ence the claim that it nad become
a fixture by having become a part
of the land and said very justly
that although it had become im-
bedded in the land it had not be-
come a part of the land but al-
ways remained distinguished from
it. The owner of the land claimed
title to it upon the ground that it
had become a fixture on his land,
under the rule that if a man
places chattels on the land of an-
other, such, as for example, stones
or bricks for the purpose of build-
ing thereon, they become the prop-
erty of the person who owns the
land. In repudiating the claim of
the owner of the land that this
boat was a chattel, the court cited
several instances of certain ar-
ticles, such as coins, and lamps
of Roman manufacture which
were found in the land and be-
came the property of the finder,

400 LAW OF LAITOLOED AND TENANT,

lands, "being all that part of the park called B, situate and be-
ing in the county of 0, and now in the occupation of S^ lying be-
tween certain other properties described in the lease as adjoining
thereto," "with all the houses, etc., now in the occupation of S,"
passes a house within the boundary, though not in the occupation
of S.^ A house described as in the occupation of a certain person
will pass though it is in the occupation of a tenant of that per-
son.* The fact that in the lease of a farm or land, any particu-
lar buildings are described, does not exclude from the lease other
buildings which are actually on the land though not expressly
described.^"

§ 272. The privileges of a tenant of a part of a building-.
The lease of a part of a building carries with it for the beneiit
of the tenant everything which is necessarily used with or which
is reasonably necessary to the enjoyment of the particular por-
tion which he occupies.^^ As against his landlord, the tenant of
a portion of a building has the same right to its free and unin-
terrupted use, both for himself and his visitors, as though he oc-
cupied the whole building. The right to occupy a separate part
of a building carries with it the right to use the means of access
and all other conveniences which are used in connection with
the apartment when he leased it. As against tenants of other
portions of the building, he is entitled to uninterinipted posses-

btit in deciding the case the court of the execution of the lease, he,

placed no reliance on any of these as against the tenant, was owner

theories and said that the only of the boat and it made no differ-

question in the case was whether ence under these circumstances if

the boat belonged to the landlord the landlord had not been aware

at the date of the lease. The court of the existence of the boat when

held that it did, irrespective of the he made the lease. Bwees v.

fact as to whether it was a min- Briggs Gas Co., 55 L. T. 831.

eral or a part of the soil. ,If, on s jack v. Mclntyre, 12 CI. & F.

the one hand, it became a part of 151; Hay v. Cumberland, 25 Barb,

the soil it certainly belonged to (N. Y.) 594.

the landlord; and, if it were not a » Burton v. Brown, Cro. Jac. 643.

part of the soil, but a chattel then lo Hay v. Cumberland, 25 Barb,

it belonged to him for the reason (N. Y.) 594.

that he owned not only the sur- n Kitchen Bros. Hotel Co. v.

face but everything that lies un- Philbin, 2 Neb. (unof.) 340, 96

der the surface. He also had pos- N. W. Rep. 487, 488; Geneva Min-

session of the boat and for these eral Springs Co. v. Coursey, 61 N.

reasons that both possession and Y. Supp. 98, 45 App. Div. 268.
property were iu him at the time

PROPEETY WHICH IS INCLUDED IN THE LEASE. 401

sion of every right and privilege which, are necessary to confer
upon him the complete and full enjoyment of the premises which
he occupies. ^^ Thus, for illustration, the lease of a room on the
ground floor of a hotel to a ticket broker for the purpose of
carrjnng on his business as such carries with it the use for the
customers of the tenant of the door and hallway leading from
any portion of the building which is necessary for the tenant's
use.^^ But no interest in the leased premises passes to the ten-
ant of an apartment which is not directly connected with the
use which he makes of the apartment.^* And an express agree-
ment entered into by the landlord with the tenant of an apart-
ment by which he is given the use or possession of another por-
tion of the premises in which the apartment is located will be
strictly construed and will be regarded as a license rather than
as a lease. Being a license, it may be revoked, and the tendency
is to construe all such extra privileges and rights which are not
absolutely necessary to the enjoyment of the particular offices,
flat or apartment in a restrictive sense. Thus, a clause in the
lease of a loft that a tenant is to have the privilege of storing a
reasonable number of cases of goods in the basement of the
building in which the loft is located, being vague as to the
quantity and space to be occupied by the tenant and as to the
number of cases to be stored, does not constitute a lease of any
part of the basement.^^ A tenant of a cellar is entitled to the
free and uninterrupted use of the entrance thereof on the street,
but where the platform covering the outlet of a cellar was not
mentioned in the lease of a cellar and the use of the platform
was not indispensable to the use of the cellar, the tenant has no
implied right to the platform.^'' The lease of a floor in a build-
ing conveys to the lessee the right t-o use the front wall of that
part of the building for his o^ti exclusive use for the purpose of
placing signs thereon. He may use it himself or permit another
person to use it for that purpose and his permission to another
person to use it is a mere license and not a lease and, eouse-

12 Section . is Cluett v. Sheppard, 131 111.

13 Kitchen Bros. Hotel Co. v. 636, 639, 23 N. E. Rep. 5S9.
Philbin., 2 Neb. (unof.) 240, 96 N. is Hill v. Shultz, 40 X. J. Eq.
W. Rep. 487, 488. 164.

14 Seidel v. Bloeser, 97 Mo. App.
172.

26

402 LAW OF LANDLORD AND TENANT.

quently, does not constitute a breach of a covenant against the
subletting. The o"v\Tier of a building letting it out in separate
floors may, by express terms, except the use of the outside of the
building and forbid his tenants from placing signs thereon. In
the absence of such a prohibition or exception the right of the
tenant to place signs thereon is unlimited, except by the rules
of public policy which prevent the exhibition of signs calculated
to corrupt the public morals or encourage a breach of the peace.
In the same case in vi^hich the above was held the court construed
the meaning of the word "floor" and held that the "first floor"
of a building meant the floor of the first story. Hence, a lease
of the first floor in a building apparently means a cutting out of
the section of the building as a distinct tenement by an upper and
lower boundary which are indicated by the words "first floor."
So far as the lateral boundaries are concerned the lease of a floor
presumptively includes the front or side walls by which it is
bounded. So probably the lease of a floor would include all
rooms, passageways and closets within the four walls surround-
ing the same from the exterior of said walls in both directions. A
lease of a "room" as such is somewhat different. The word
"floor" means a section of the building between horizontal planes
and the words "in a building" attached to the word "floor"
shows that a section of the whole building is meant and not
simply a part of it. The word "room" on the other hand indi-
cates a quantity of space inclosed by walls, possibly within the
house itself, as well as by the separate horizontal planes. The
word "room" or "rooms" presumptively excludes the outside
of the side or front walls, in the absence of express language and
particularly where the front walls constitute the walls of another
room. Thus, it will be seen that the right to the use of the walls
by the tenant of a part of the premises depends to a large extent
upon the part he occupies. If he occupies a floor then the pre-
sumption is strongly in his favor that he has the use of the out-
side wall but if he only occupies a room the presumption is the
other way.' ^

i^ 273. Description of leased premises by street number.
Where the premises are described in a lease by the numbers which
are over the outside door opening on a street the presumption

17 Lowell V. Strahan, 14.^> Mass. 1, 12 N. K. Rep. 401.

PROPERTY WlllCn IS INCLUDED IN THE LEASE. 403

which is always rebuttable, is that the building is meant access to
which may be had from the street by means of these doors. Hence
if a building has a solid partition wall extending from cellar to
roof which practically makes it two structures, a tenant whose
lease describes it by street numbers cannot claim that the lease
covers a portion of the building not accessible by the outside
doors. And it is not material that, for the convenience of a prior
tenant a passageway has been cut in the partition wall of the ftrst
floor.^® The lease of land by street numbers in the absence of an
express provision to the contrary' conveys the use of all land en-
trance to which may be had from the street. It includes not only
the front but the rear of the lot as well. The lessee will by impli-
cation have the right to use all stables and outhouses upon the
rear of the lot, access to which may be had by a door over which
the number is placed. But this rule does not apply to corner lots
in the business portion of a city fronting on two streets on which
are situated dwelling and business houses, which are separate and
distinct.^** Where there is nothing in the lease to indicate an in-
tention to limit the lessee's occupancy to buildings a lease of city
premises by street number conveys an interest in the yard, gar-
den and subjacent land which the lessee retains after the build-
ings have been destroyed or removed.-" Where a lease of a houst
by a street number does not in terms convey the right to use a
passage on the same lot beside it or to use the land in the rear
to which it leads, all that the tenant holds is the right to use the
passage way if its use is necessary to the complete en.joyment of
the building for the purpose for which it was rented and whether
the use of the passageway is necessary is a question of fact.-^

18 Houghton V. Moore, 141 Mass. the structure two teaements as
437, 6 N. E. Rep. 517. distinctly as if they had been

19 Hosher v. Hostermann, 58 111. built on separate blocks. When
App. 265. a house or building is described

20 p. H. Snook & Austin Furni- in a lease by street numbers over
ture Co. V. Steiner & Emery. 113 the outside doors the inference is
Ga. 363, 43 S. E. Rep. 775, 777. that a building is intended access
The fact that a building has a to \vhich is reached by these doors,
solid brick partition in it from Houghton v. Moore, 141 Mass. 437,
cellar to roof without door or 6 N. E. Rep. 517.

passageway in it raises an un- 21 Patterson v. Graham, 140 111.

avoidable presumption that the 531, 535, 30 N. E. Rep. 460, affirm-

different parts were to be sepa- ing 40 111. App. 399.
rately occupied. The wall makes

404 LAW OP LA2JDLQRD AND TENANT.

The presumption that a lease by street mimber includes only such
buildings as are located upon the lot thus numbered is not rebut-
ted by a clause granting to the lessee "all the buildings, out-
houses and premises of said place with the appurtenances" ;where
it appears that the lot in question was wholly occupied by the
demised premises and that the outbuildings were upon an ad-
joining lot also owned by the lessor.--

§ 274. Exclusive right of the lessee of hotel to use a particu-
lar name. Where the proprietor of a hotel or boarding house,
whether lessee or owner of the building has by close attention to
the needs and comfoi-ts of his guests, and by his superior indus-
try and skill given his establishment a wide popularity under a
distinctive name, and made it under such name a desirable resort
for lodgers and travelers he has acquired an exclusive right to
and property in such name which equity will protect. In fairness
and justice to the person whose labor has given the name value
and in order to protect the public from fraud and imposition any
other person using such name while conducting a hotel in the
.same town will be enjoined from continuing to do so.-^ The right
to use the name, being a property right, may be transferred.
Thus a lessee of a hotel in assigning his term or in subletting may,
where he has acquired a right to use a peculiar and distinctive
name, transfer such right to his assignee or sub-tenant. Or he
may stipulate that he will not carry on the same business in the
same place for a specified term of years in which case the right to
the exclusive use of the name maj pass to and vest in the assignee
by implication. A mere assignment of the term will not, in the ab-
sence of express language to that effect, confer upon the assignee
the right to use the name in which the assignor has property
rights with the consent, express or implied, of the latter. And
unless the person who by his industry and skill has acquired the
exclusive right to use a particular designation for his hotel or
boarding house, has transferred it to one to whom he has assigned
or sublet the premises with which the designation was connected
the latter cannot enjoin him from using it in the same business.^*

22 Morris v. Kettlo, 56 N. J. Eq. also, Knott v. Morgan, 2 Keen. 213.
826, 34 Atl. Rop. 376. 219.

23 Wilcoxen v. McCray, 38 N. J. 24 Wilcoxen v. McCray, 38 N. J.
Eq. 466, 469; Howard v. Hen- Eq. 466, 469.

riques, 3 Sandf. (N. Y.) 725. Se«*

PROPEItTY WHICH IS INCLUDED IN THE LEASE- 405

§ 275. The tenants right to light and air coming through his
front and rear windows. The abutting owner of laud at com-
mon law has a right to the street or highway for light and air and
for access, ingress and egress, subject only to the easement in the
public to use the highway and the rights of the municipality in
which his land is situated. These rights constitute particularly
in crowded business streets the most valuable portion of his
property so that to deprive him of it will in most cases greatly
diminish its value.-^ These advantages belong to and are a part
of the property and are absolutely essential to its full use and en-
joyment and they pass to a lessee unless specially reserved to the
owner or some other person in the instrument.-*' A\"here an owner
lays out land and on the map thereof designates certain streets
and roads as giving access to the lots upon the map, and subse-
quently leases such lots on long leases, the action of the owner in
platting the land amounts to a dedication of such streets and
roads to the use of the lessees.-'^ Hence the lessees are absolutely
entitled to have these streets and roads kept during the term of
the lease -® and also to eveiy incidental right flowing out of the
existence of such public streets and highways. The tenant of a

25 Branahan v. Hotel Co., 39 from that of the general public.
Ohio St. 333; Brayton v. Fall It includes not only the right to
River, 113 IMass. 218; Pratt v. use the street for passage but for
Lewis, 39 Mich. 7; Edmison v. light and air, access, ingress and
Lowry, 3 S. D. 77, 52 N. W. Rep. egress at all times subject to the
583, 17 L. R. A. 275, 44 Am. St. public easement. The right to an
Rep. 774. unobstructed street constitutes the

26 Edmison v. Lowry, 3 S. D. 77, most valuable part of the prop-
84, 52 N. W. Rep. 583, 17 L. R. A. erty, particularly in crowded thor-
275, 44 Am. St. Rep. 774; holding oughfares and business streets.
also that the depositing of stone Such rights constitute property
and lumber by the landlord in and cannot be taken for public use
front of the leased premises which without just compensation. These
resulted in the tenant being de- rights of the owner of abutting
prived of access for three months property pass to a lessee, and the
was an eviction which justified lessee therefore acquires all right
the tenant's refusal to pay rent. to use the street in front of his

27 Thousand Island Park Asso- premises, including the right to
ciation v. Tucker, 173 N. Y. 203, air and light, access, ingress and
65 N. E. Rep. 975; reversing 69 egress incident to the property
N. Y. Supp. 1149. not only as against the public but

28 The right of the abutting against the lessor as well. Hence
owner In land of a street is a pe- the right of the lessee to the use
culiar, distinct and separate right of the street for the approach of

406 LAW OF LANDLORD AND TENANT.

portion of floor in a building whose windows open npon the
street or highway has the same right to the light and air which
pass through these windows as against his landlord as the ten-
ant of the whole building woiild have. Thus a lease of several
front rooms on an upper floor of a building carries Avith it the
implied right as against the landlord to have an unobstructed
view of the street. So the lessor cannot shut off such view or im-
pair the tenant's easements of light and air by adding to the
front of the building.-^ One who leases the whole building and
su])lets the several floors to separate tenants owes each of them
the duty of refraining from obstructing their several easements
of light and air. His liability to his subtenants in this respect is
precisely the same in extent and degree as is that of the owner of
the fee. The right of a tenant whether of the wdiole building or
of only one. floor to light and air coming through the rear win-
dows of his premises will be protected to the same extent is in the
case of front w^indows. So, in a case w^here, during the term of a
lease of a second story apartment in a building whose rear abut-
ted upon a yard, the landlord, without the consent of the ten-
ant, erected an extension of the building which occupied the yard
so as to cut off the tenant's light and air it was held that a man-
datory injunction would issue to compel the landlord to remove
so much at least of the extension as obstructed the tenant's light
and air by being in front of or above the rear windows of the ten-
ant."" Though it is the wtII established rule that where premises
are hsased with windows opening upon a vacant lot detached from
the premises a grant of light and air is not implied to the lessee,
yet where a lease is made of a part of a building with a window
opening into a yard connected witji building so that if the
lessee had leased the whole building the yard would have passed
as an appurtenant to the demised building, the lessee acquires a.
right to have the w'indow left unobstructed at least when it is
n(;cessary for the use of the premises for the purpose for which
it was let.^^ As between the several tenants of a building which

express wagons, carriages and obstructed than the other. Edmi-

other vehicles is as full and com- son v. Lowry, "3 S. D. 77, .S4.

plete as his right to the occupa- 2» Brande v. Grace, 154 Mass.

tion and use of the demised 210, 31 N. E. Rep. 633.

building itself, and his right to fo Stevens v. Salamon, 31 Misc.

the one can no more be lawfully Rep. 19, 79 N. Y. Supp. 136.

31 Doyle V. Lloyd, 04 N. Y. 432,

PROPERTY WHICH IS IXCLUDED IN THE LEASE.

407

is let out in separate apartments each has, as against all the
others, an unlimited right to the light and air necessary- to make
his apartments habitable and which he receives through the front
and rear windows in existence when he takes the premises. The

436, 439. In this case the Court
by Earl, J., said: "If the plain-
tiffs had hired the whole build-
ing with the appurtenances, their
right to the yard could not have
been questioned. The yard be-
longed to the building and was
appropriate to its use, and would
pass under a lease of the premises
demised. The lease would have
such effect, because it would be the
presumed intention of the parties.
In Sheppard's Touchstone, 94, it
is said that the grant of a mes-
suage or a messuage with the ap-
purtenances will pass the dwelling
house, barn, adjoining buildings,
orchard, curtilage, and garden. In
Comyn's Digest (Title, Grant E 6)
it is said, 'by the grant of a mes-
suage or house, the garden, or-
chard, or curtilage pass.' In T\Tait-
ney v. Olney, 3 Mason (U. S.) 208,
it was held that a devise of a mill
with appurtenances conveyed not
the buildings merely, but the land
under and adjoining, which is nec-
essary to the use and actually
used with it. In United States v.
Appleton. 1 Sumn. (U. S.) 492,
Judge Story said, "The general
rule of law is, that where a house
or store is conveyed by the owner
thereof everything then belonging
to and in use for the house or
store, as an incident or appurte-
nant, passes by the grant. It is
implied from the nature of the
grant, unless it contains some re-
striction, that the grantee shall
possess the house in the manner
and with the same beneficial
rights as were then in and be-

longed to it. In the case sup-
posed, the yard would have passed
with the store, not by force of the
word "appurtenances" but as por-
tions of the premises demised.
Riddle v. Litchfield, 53 N. H. 503.
If all the rooms, in .the building
had at the same time been rented
to different persons, each taking
the room with the appurtenances,
and no mention had been made of
the yard, a different case would
have been presented. The demise
of a room in the building would
pass no portion of the yard. Each
tenant would take only the room
• which he had hired, and would
take no other portion of the prem-
ises. Whatever else he took would
be by virtue of the word "appur-
tenances." That word would give
him whatever was attached to or
used with the premises, or inci-
dent thereto an,d convenient or
essential to the beneficial use and
enjoyment thereof, and he would
take any easement or servitude
used or enjoyed with the demised
premises. 2 Wash, on Seal Prop.
667. It would give him no inter
est in the yard as a portion of
land, because land cannot pass
as appurtenant to land, but it
would give him easement in the
yard in common with all the other
tenants, for all purposes for which
it could be used in common — for
access to the privies, for a play-
ground for children, and for light
and air for rooms in the rear of
the building. If the different
rooms were leased at different
times with the appurtenances, the

408 LAW OF LANDLORD AND TENANT.

same rule applies to all windows in the separate apartments open-
ing on any passageway which is wholly within the building itself,
as a hall or corridor. A tenant of one portion of the premises
whose full and unobstructed use of a front or rear window is
prevented by or through tenants of other parts of the house,
placing showcases in front of it, may maintain an action of tres-
pass against the trespasser, and may legally remove the obstruc-
tions themselves.^- If the tenant of one part of the premises ob-
structs the windows of another tenant by the direction or with the
express consent of the landlord the tenant w^ho is thus annoyed
or inconvenienced may treat the obstruction as a constructive
eviction and he may act accordingly so far as the abandonment of
his apartments is concerned. An owner of premises leased the up-
per part of the same the windows of which looked out upon an
open space. He then leased the whole building subject of course
to the prior lease, but also giving the second lessor permission to
erect an electric plant and to build a chimney for the same. The
second lessee having erected a chimney which obscured the win-
dows through which the first lessee received light and air it was
held that the first lessee had a right of action against the land-
lord though the lease contained no express covenant of quiet en-
joyment.^^ A covenant by the lessor that he will not object to any
"works" on the adjoining premises which may be sanctioned by
his landlord, applies only to buildings which are in actual contact
with the demised building. Hence the tenant is not precluded
from preventing his landlord from building so as to obstruct his
light, where his lease conveyed to him all lights, easements and
appurtenances belonging to the premises which he leased, where

same result would follow. Each occupied when plaintiff took the
tenant would have an easement in lease no tenant thereof could well
the yard. Such, in the absence of dispense with the use of the yard,
restrictive words, would be the The building was so constructed
manifest intention of the parties and arranged that all the tenants
and no rule of law stands in the had access to the yard and there
way of giving effect to such in- was no other apparent purpose to
tcntion. The yard was attached which the yard could be sub-
to and appropriated for the use of jected."

the building. The privies were 32 Whitohouse v. Aiken (Mass.

built for the use of the occupants 1906) 77 N. E. Rep. 499.

of the building and the yard was 33 Case v. Minot, 158 Mass. 557,

essential to the beneficial use 33 N. B. Rep. 700
thereof, and as the building was

PROPERTY WHICH IS INCLUDED IN THE LEASE. 409

the buildings which are being erected by the landlord are located
on ground which actually touches the ground occupied by the
tenant.^*

§ 276. Rights as to the use of light and air as between the
proprietors of adjoining premises. In England it is the general
rule that a person may acquire the right to an easement of
light and air as against an adjoining o\vner by the uninter-
rupted enjoyment of such right for a period of twenty years. By
such right the adjoining owner is prevented from stopping up
the windows of the person who has the right by the erection of
buildings on his own land. So if one who has a house with win-
dows looking out to his own vacant land shall sell it he may not
thereafter build a structure upon the vacancy which he still owns
which shall deprive the house he has sold of its light.^^ This rule
for a prescriptive right or easement however, in the use of light
and air which may be acquired by uninterrupted use is not gener-
ally recognized in the United States.'® In the cases cited the
question of an easement of light and air over adjoining land has
almost universally arisen between the grantor of the fee and his
grantee, and no English case has been found where the rule was
applied between a lessee and a lessor who was the owner of ad-
joining land. The basis of the rule which is recognized in Eng-
land is not very clearly pointed out in the cases. As between the
grantor and grantee the rule may in theory" be based on an im-

34 White V. Harrow, 86 L. T. 4, len v. Strieker, 19 Ohio State,
50 W. R. 2.59. 135, 2 Am. Rep. 379; Haverstick

35 Moore v. Rawson, 3 Bar. & C. v. Sipe, 33 Pa. St. 368; McDonald
332, 340; Palmer v. Fletcher, 1 v. Bromley, 6 Phila. (Pa.) 302.
Lev. 132; Aldred's Case, 9 Rep. 24 Leg. Int. 157; King v. Large, 7
58b. For a full citation of the Phila. (Pa.) 282, 27 Leg. Int. 149;
English cases see Washburn on Klein v. Gehrung, 25 Tex. 232;
Easements and Servitudes, mar. Hubbard v. Town, 33 Vt. 283; Tur-
p. 492. et seq. ner v. Thompson, 58 Ga. 268, 24

38 Ward V. Noel, 37 Ala. 500; Am. Rep. 497; Guest v. Reynolds,

Western Granite & Marble Co. v. 68 111. 478, 18 Am. Rep. 570; Dex-

Knickerbocker, 103 Cal. Ill, 37 ter v. Tree, 117 111. 532, 6 N. E.

Pac. Rep. 192; Lapere v. Luckey, Rep. 506; Stein v. Hauck, 56 Ind.

23 Kan. 534, 33 Am. Rep. 196; 65, 26 Am. Rep. 10; Cherry v.

Richardson v. Pond, 81 Mass. 387, Stein, 11 Md. 1; Parker v. Foote,

389; Carrig v. Dee, 14 Gray 19 Wend. (N. Y.) 309; Powell v.

(Mass.) 5S3; Haydeu v. Dutcher, Simms, 5 W. Va. 1, 13 Am. Rep.

31 N. J. Eq. 217; Sweeney v. St. 629.
John, 28 Hun (N. Y.) 634; Mul-

410 LAW OP LANDLORD AND TENANT.

plication that the premises to which it is claimed the easements
attached would be rendered more valuable thereby, and that for
that reason the grantee of the premises paid more for them than
he would otherwise have done. As between grantor and grantee
it may possibly be assumed that the easement arises as soon a? the
grant is made. If this be assumed then the easement is not
created by prescription nor by adverse use for a specific period
which might apply in other eases, but by the fiction of an implied
contract.^" No doubt the English cases determining this question
between a grantor and grantee would be applicable in those juris-
dictions where the English rule is followed to a case where a les-
sor owning adjacent lots by building upon one of them obstructs
the light and air of his lessee. The prevalent rule in the United
States is that an easement in the unobstructed passage of light
and air cannot be acquired by prescription alone.^® And it is also
a general rule to which, however, exceptions are made in some
states that a grant of the right to light and air will not be created
by implication from the conveyance of a house whose windows
overlook other land retained by the grantor. Nor will a grant of
an easement of light and air be implied in such case from the
nature or use of the building on the land conveyed or from the
necessity of such an easement to the convenient use and enjoy-
ment of the property.^^ So, a person who rents the second story
of a building for a business *'. e., photography which requires un-
obstructed light, has no cause of action against an owner of an

37 Mr. Washburn in his Treatise 3G5, 33 Atl. Rep. 390, 29 L. R. A,
on .Easements bases the claim to .582; Keiper v. Klein, 51 Ind. 316;
light and air upon what he calls Morrison v. Marquardt, 24 Iowa,
the familiar rule of law that if 35, 92 Am. Dec. 444; White v.
one grant an estate to which cer- Bradley, 66 Me. 254; Collier v.
tain apparent and continuous sub- Pierce, 7 Gray (Mass.) 18, 66 Am.
jects of enjoyment belong and are Dec. 453; Randall v. Sanderson,
used therewith he cannot there- 111 Mass. 114; Keats v. Hugo, 115
after derogate from the benefit of Mass. 204; Burr v. Mills, 21 Wend,
his own grant by interfering (N. Y.) 290; Shipman v. Beers, 2
therewith.— p. 492. Abb. N. C. 435; Haverstick v. Sipe,

38 Keating v. Springer, 146 111. 33 Pa. St. 368; contra James v.
481, 492, 34 N. E. Rep. 805, 37 Am. .lenkins, 34 Md. 1, 6 Am. Rep.
St. Rep. 175, 22 L. R. A. 544; 300; Turner v. Thompson, 58 Ga.
Keats V. Hugo, 115 Mass. 204; Mul- 26S, 24 Am. Rep. 497; Taylor v.
len V. Strieker, 19 Ohio St. 135; Boulware, 35 La. Ann. 469; Cherry
Guest V. Reynolds, 68 111. 478 v. Stein, 11 Md. 1; Green v. Me-

•■!!' Robinson v. Clapj), 65 Conn. tor, 54 N. J. Eq. 270.'

PROPERTY WHICH IS INCLUDED IN THE LEASE.

411

adjacent lot who siibseqnenlly erects a biiildincj thereon and oh-
stmcts the tenants' windows though the same person owned the
demised premises and the strip of land npon which the wall was
located.*" It follows therefore in conformity with this general
rule that a landlord will not be liable for obstructing his tenant's
light and air by building on the adjoining land owned by him in
the absence of any covenant or agreement in the lease forbidding
it.*^ Of course the right to have light and air come through a
window over the adjoining premises may be conveyed in a lease
by express covenant or agreement. *^^ So, if buildings are erected
occupying the four sides of an open court, or occupying three
sides of a court or alleyway which opens into a public highway
with an open space in the middle for light and air which is free
to the occupants of the rooms in the adjoining buildings, with a

40 Lindsey v. First Nat. Bank,
115 N. Car. 553, 20 S. E. Rep. 621,
in which the court said: "Whether
the plaintiffs leased the second
story room for the purpose of tak-
ing photographs therein, or with
some other object in view, they
contracted in terms only for the
use of the apartments occupied
by them, and not for an unob-
structed light passing through a
certain window or windows in ad-
dition. They might maintain an
action for any trespass upon the
premises rented by them. But
conceding that the lessors were
the owners of the eighteen inches
of land just outside the wall
which was in dispute, it was not
contended that they had entered
into any stipulations, so far as we
can ascertain from the testimony,
that the lease of the plaintiffs
should extend beyond the wall.
Consequently the lessors could
have purchased the land of the
coteimiuous proprietor and have
erected a structure, one wall of
which would have shut out the
light from the windows of the de-
mised premises, without subject-

ing themselves to liability on an
action of trespass brought by
their tenants. They could have
conveyed to another this narrow
strip of land and have vested
their grantee with the same
power, their lessee having ac-
quired in the absence of special
stipulation no right, title or in-
terest in it. Whether the lessors
allowed the adjacent owner to
build a wall upon it under a ver-
bal license or left him unmolested
when he built without license or
not the lessees had no remedy
against the latter in any event,
and could maintain an action
against the former only by show-
ing a breach of some special con-
tract in reference to the lights.

•*i Keating v. Springer, 146 111.
481, 493, 34 N. E. Rep. 805, 37
Am. St. Rep. 175, 22 L. R. A. 544;
Myers v. Gemmell, 10 Barb. (N.
Y.) 537, 545; Palmer v. Wetmore,
2 Sandf. (N. Y.) 316, 2 Woodf.
Landlord & Ten., p. 703, note.

^ui Milliard v. Gas Coal Co.. 41
Ohio St. 662, 667; Brooks v. Reyn-
olds, 106 Mass. 31; Hazlett v. Pow-
ell, 30 Pa. St. 293.

412 LAW OF LANDLORD AND TENANT,

common entrance to all, and separate apartments are then let out
to different tenants, the owner may conclusively be considered
to have dedicated that open space, like a yard, for the benefit of
his tenants.*^

§ 277. The right of a tenant to use outside walls. One who
leases business property takes by implication in the absence of
an express reservation in the lease the rig-ht to use the outside
wall or walls for placing his signs or other advertising matter
thereon,*^ unless it appears that the walls of the portion of the
premises leased, were already occupied by signs to such an extent
as to be notice to the tenant, that his advertising privilege was to
be restricted.** This right passes as an incident of the leasing
being necessary to the full and proper enjojonent of the demised
premises. Hence as against the tenant in possession the landlord
cannot lease the right to use the outside walls to a third per-
son,*^ and if he shall attempt to do so, the third person may be
enjoined from placing signs or notices thereon without the con-
sent of the tenant.*^ The tenant however has no right to use for
any purpose any portion of the outside wall not enclosing his
part of the premises. The tenant of a store on the ground floor
cannot interfere vdth the landlord who lets the wall of an upper
story to another.*^ The question of the right to use an outside
wall as space for signs and advertisements may arise and cause
some difficulty where several tenants occupy separate premises
on the same floor. A provision in a lease to the effect that "the

*2 Myers v. Gemmell, 10 Barb. (N. Y.) 3.o5. A lessee of the first

(N. Y.) 537, p. 546, citing Story story and basement of a building

T. Odini, 12 Mass. 157, in which will be protected against his les-

case houses facing on three sides sor by an injunction, where he

of a court were sold. has painted on the outer wall of

43 Riddle V. Littlefield, 53 N. H. his story, in good style, certain
.o03, 16 Am. Rep. 388; Baldwin v. pictures, signs, and devices, suita-
Morgan, 43 Hun (N. Y.) 355; Law ble and proper for advertising his
V. Haley, 9 Ohio Dec. 785, 17 business, where the signs do not
Wkly. Law Bui. 242; Carlisle Cafe extend bejond the premises leased
Co. V. Muse, 67 L. J. Ch. 53, 77 to him, and the lease corutains no
L. T. (N. S.) 515. restriction upon putting signs on

44 Scott V. Fox Optical Co., 3S the front of the building. Bald-
Pitts. L. J. 368. But see Hele v. win v. Morgan, 43 Hun (N. Y.)
Stewart, 19 W. N. C. (Pa.) 120. 355.

45 Lowell V. Strahan, 145 Mass. 47 Booth v. Gaither, 58 111. App.
1, 12 N. E. Rep. 401. 203. And may be restrained from

4» Baldwin v. Morgan, 43 Hun doing so by an injunction.

PROPERTY WHICH IS INCLUDED IN THE LEASE.

413

lessee may have the right to place signs upon the outer walls"
does not where there are several tenants give him an exclusive
right to do so but is to be construed in reference to the condition
of the premises at the time it was written especially as affected
by licenses to older tenants.*^ But where a building is let out in
floors to separate lessees each one has the exclusive right to place
signs upon the outer wall so far as it forms an enclosure to his
premises." The right of a tenant in a large business building

*i Pevey t. Skinner, 116 Mass.
129.

■»9 Lowell V. Strahan, 145 Mass.
1, 12 N. R Rep. 401, 1 Am. St.
Rep. 422; Riddle v. Littlefield, .53
N. H. 503, 16 Am. Rep. 388;
Law V. Haley, 9 Ohio Dec. 785, 17
Wkly. Law Bui. 242; see, also,
Snyder v. Hersberg, 33 Leg. Int.
158. A tenant will not be en-
joined pending an action, by his
landlord to compel him to remove
a sign on his premises, where the
sign is not forbidden by the lease,
and it does not appear that it
caused irreparable injury to the
landlord. Stim v. Nash, 19 Civ.
Pro. R. (N. Y.) 184, 12 N. Y. Supp.
431. Now, it will hardly be con-
tended that the outside wall of a
store or house is not essential
for the reasonable and proper en-
joyment of the interior of the
building. The outer side of tjie
wall is but one side of the same
wall that has an inner side; the
removal of the wall removes both
sides. If, then, a lessee or
grantee may have the wall which
he pays for, it would seem that
he should be entitled to the use
of it. Not only for purposes in^
dispensable to the occupation of
the building, but also for any pur-
pose of service or profit not in-
consistent with the lawful and
reasonable enjoyment of the prop-
erty. If he uses the tenement for

a store, he would ordinarily be
entitled to affix his signs to the
outer wall; an awning also if
such appendage should be deemed
necessary or convenient. He may
suspend his wares upon the build-
ing if no one is inconvenienced
thereby and he may cover the
outer walls with his advertise-
ments of the merchandise which
he keeps for sale within, if he
does not injure the building, nor
obstruct the public passage, nor
offend the public eye and taste by
unseemly exhibitions or otherwise
violate the laws. And if he may
thus incumber and cover the ex-
terior walls of his store, clearly
his lessor cannot do the same
thing at the same time. The oc-
cupation by both parties to the
lease for incongruous purposes is
impossible. If the premises are
leased for a clothing store, for ex-
ample, the lessor cannot use for a
bulletin board the space which the
lessee may reasonably, properly,
conveniently and profitably oc-
cupy with the ready-made gar-
ments which he thereby suspends
for exhibition and sale. * * *
The lessee who affixes his signs
and advertisements upon the
wall, or thereupon suspends his
wares, does so in order to attract
custom, and thereby increase the
profit derived from the use of the
demised premises. The outer wall

41-1 LAW OF LANDL(3RD AND TENANT.

which is rented to many tenants carrying- on various trades or
avocations, to have his sign stating his name and the nature of
his business displayed in a prominent place at the entrance from
the street is an important one. The matter is usually regulated
either by the terms of the lease or by regulations made by the
landlord for the management of the property to which the tenant
is required to conform. Where the matter is not thus expressly
regulated the right to have a sign at the common entrance to this
building will pass as an appurtenance to the premises demised.
A tenant cannot however arbitrarily place his sign in a particu-
lar locality at the entrance as against older tenants. Nor will
equity protect him from having his sign removed to another place
unless it shall appear that he has exhausted all means within his
reach to come to an arrangement with the landlord and the other
tenants.'^" But a tenant of the upper floors of a building to
whom has been given the privilege of putting signs on or near
the stairway can prevent a tenant of a lower floor from covering
up his signs, whether by reason of his tenancy or by authority
from the landlord.^^ Tenants who, by the terms of the lease, are
not permitted to use the outside walls of the premises for adver-
tising purposes cannot prevent the use of such walls by their

is to him a source of legitimate iug for the purposes of trade
Ijrofit. And as the lessor does not might occupy the outer walls of
ordinarily prescribe the uses to the same building for displaying
which the interior of the store the advertisements o'f a rival
shall be devoted — provided only trade but this result might very
the use be not offensive, improper probably follow, if the lessee
or illegal so he may not, other- might not control the use of the
wise than with the same proviso, e.xterior walls. Riddle v. Little-
prescribe the. uses to which the field, 53 N. H. .503, 510.
outer walls may be devoted by his •'"'O Knoepfel v. Kings County
lessee. If the lessee deems it Fire Ins. Co., 66 N. Y. 639, 48 How.
more advantageous to employ the Prac. (N. Y.) 208, 7 J. & S. 553.
Avails for advertising the goods or and compare Law v. Haley, 17
business of others receiving pay- Wkly. Law Bui. 242, where a prior
ment therefor, than to advertise tenant having appropriated a
or expose his own goods, upon the space for his sign an inijunclion
wall, it is none of the landlord's was refused a subsequent tenant
business, unless he has restricted to prevent him from continuing
and forbidden such use of the to occupy it.

premises, or inserted in his lease m Miller v. Fitzgerald Dry

a covenant against the lotting of Goods Co., 62 Neb. 270, 86 N. W.

them. It would be singular if a Reu. 1078.
landlord, who had leased a build-

PROPERTY WHICH IS INCLUDED IN THE LEASE. 415

landlord for.advortising purposes on the ground that the adver-
tisements painted by the landlord upon the outside walls offend
their esthetic tastes and dim the lustre of the advertising signs of
the tenants which they have caused to be placed upon their win-
dows. They mu.^t show some actual damage and injuiy to their
business.^" A sign which has for some years been attached to
premises owned by the landlord other than that demised but ad-
jacent to it, and which indicated the locality of the demised
premises, and the business of its occupant, the lessee, will be pre-
sumed to be a parcel of the said premises, and the landlord will
be enjoined from removing it.'^^

§ 278. The use of roof for advertising- purposes. The very
common use of roofs for the display of large advertising signs
render some consideration of this topic necessaiy so far as it re-
lates to the relation of landlord and tenant. Under a lease by
which the tenant receives the exclusive possession and control of
the demised premises he would doubtless have the right to sub-
let the roof for advertising puipose unless expressly forbidden
to do so by a provision in the lease. In doing so he may be liable
to his landlord for any injury to the building resulting from the
erection of signs on the roof irrespective of whether such damage
was or was not the outcome of negligence. He may be liable for
his failure to restore the premises to their original condition
after the structure placed upon the roof for advertising purposes
is removed. The landlord who retains to himself the exclusive
control of the roof, particularly of premises leased to several
tenants in floors may lease the roof to a stranger or ase it for his
own advertising purposes, unless forbidden to do so by the lease.
His liability to his tenants to keep the roof in a reasonable state
of repairs will extend to and include any signs or other structures
placed on his roof by himself or others with his permission.

§ 279. Tenant's right to show windows. The display and
public exhi])ition of goods exposed for sale in stores constitute a
very important part of the use and enjoyment of business prem-
ises. "Where, at the time of the letting, there are show windows in
a store, they aiv included as an appurtenance of the premises, and
the tenant has the full right to use them for the display of his

•"•2 Fuller V. Rose, 110 Mo. App. ss Francis v. Hayward, 52 L. J.

344, 85 S. W. Rep. 931. Ch. 291, 22 Ch. D. 177. 48 L. T.

297, 31 W. R. 488, 47 J. P. 517.

416 LAW OF LANDLORD AJSTD TENANT.

goods.^* The extent of the tenant's right to make; a display of
merchandise sold by him depends altogether upon the language
of the lease and the facts of each case. His rights are obviously
greater in the case of business premises than in the case of a
dwelling house. But even though he may have an absolute right
to use show windows existing in the premises at the date of the
lease he will not be permitted to put in new windows for exhibit-
ing his wares without the consent of his landlord. Such conduct
on his part, effecting a material alteration in the premises, is
waste from the landlord's standpoint and will be enjoined as
such in equity. And his use of existing show windows must be
a proper and legal use for if he shall, by exhibiting anything
therein during his term, create a nuisance which shall tend to in-
jure the reversion he may be enjoined by his landlord.

§ 280. Easements of egress and ingress. A demise of land
in general terms without any express mention of the use of a
right of access thereto conveys the right to use all ways giving
access to the premises which are appurtenant to the land or
which are necessary for its convenient use by the tenant. If the
right of way is in fact appurtenant it has passed with the gen-
eral demise whether the word appurtenant is or is not used.^"^
"Whether a right of way is or is not an appurtenance depends
mainly upon the determination of the question whether it has or
has not been used by the former tenants or has been enjoyed by
them in connection with their use of the building demised. This
is always a very material inquiry irrespective of whether the
word appurtenance is employed in the lease or not. A right of
way to the demised premises not strictly appurtenant will not
pass under a clause leasing the premises "with all roads, ways,
rights of road, paths, passages, etc., to the premises, or in any
way appertaining" unless the parties to the lease appear to
have intended to use these words in a sense which is larger and
more inclusive than their ordinary sense.^''^ The better practice

•'■'4 Herpolsheimer v. Funke 172; Kitchen Bros. Hotel Co. v.

(Neb.) 95 N. W. Rep. 688. Philbin, 2 Neb. (unof.) 340, 96 N.

B5 Skull V. Gleni.ster, 11 W. R. W. Rep. 487; Doyle v. Lord, 64 N.

368; Snook & Austin Fur. Co. v. Y. 432, 21 Am. Dec. 629.
Steiner, 113 Ga. 303, 43 S. E. Rop. coa Barlow v. Rhodes, 1 C. & M.

775, 777; Patterson v. Graham, 439. See, also, Hinchcliffe v. Earl

140 111. 531, 30 N. E. Rep. 460; of Klnnoul, 5 Bing. N. C. 1.
Seidel v. Bloesser, 77 Mo. App.

PROPERTY WHICH IS INCLUDED IN THE LE.\SE. 417

in conveying the right to use roads, ways or passages to a tenant
to whom lands or buildings are leased is to describe the roads or
ways which are meant to be transferred "as having been used by
the former tenants" or as "having been enjoyed" in connection
with the possession of the premises.^® For a lease of premises
"together with all ways appertaining or that in any parts thereof
are used or enjoj^ed," carries a right of way, though it is not
expressly mentioned in the lease if it were used with the prem-
ises at the time the lease was made." The absence of the word
appurtenances is not material, though its presence strengthens
the construction. A lease of a house with all the rights "be-
longing or appertaining or therewith usually held, used, occu-
pied, or enjoyed and their appurtenances" embraced and con-
veyed a right of way which had been held with the principal
estate.^^ So, where premises were let with certain specified
rights of ingress and "all other ways and easements to the said
premises belonging and appertaining," the latter words were
held to pass a right of way over the lessor's own premises, which
he used for access to the premises demised.^® The right to use
a certain way to gain access to the demised premises may, under
certain circumstances, pass to the lessee, though it is not strictly
an appurtenant and though it has never been used or enjoyed
by any former tenant of the premises. For example, where a
landowner demised a portion of his land which he cuts out of a

56 Morris v. Edington, 3 Taunt. The court said there is a great

24, 27; Barlow v. Rhodes, 1 C. & difference to be observed in con-

M. 439; Harding v. Wilson, 2 B. struing a grant or lease with ease-

& C. 96. Under these words any ments over another's land and one

right of way used and enjoyed by where the easements are in the

the tenant when the lease was ex- lessor's land. Morris v. Edington,

ecuted would pass. The rule that 3 Taunt. 24, 31.

no easement can exist in land in 57 Kooystra v. Lucas, 1 D. & R.

which there is a unity of posses- 506, 5 B. & Aid. 830, 24 R. R. 575;

sion has an exception where a Harding v. Wilson, 3 D. & R. 287,

lessor having used convenient 2 B. & C. 96, 1 L. J. (O. S.) K. B.

ways over his own adjoining land 238. 26 R. R. 287; Morris v. Eding-

leases land with all ways appur- ton, 3 Taunt. 24, 12 R. R. 579;

tenant. The convenient ways used Crisp v. Price, 5 Taunt. 548.

by him over his own land will ss James v. Plant, 4 Ad. & El.

pass to his lessee though technic- 749.

ally speaking they are not appur- 59 Morris v. Edington, 3 Taunt,

tenant unless it be shown that 24, 12 R. R. 579
there was a way appurtenant.

418 LAW OP LANDLORD AND TENANT.

large tract so that the demised land is surrounded by other land
of the lessor occupied by the lessor or by other tenants, there
arises by implication in the tenant of the inner portion of the land
a right of way by implication of law and by necessity, over the
adjoining land owned by the landlord. But aside from rights
of way which are in fact appurtenant to the land demised or
which arise from necessity, no easement of access over other
lands is conveyed to a tenant by a general demise of land or of
a building. In other words, rights of access to the demised
premises cannot be claimed by a tenant merely because his con-
venience will be advanced thereby, in the absence of an express
grant. Hence, as a rule the lessee of land which is accessible
from the public road has no right to use a shorter way across
other lands of his lessor without the permission of the lessor,
either express or implied; and if this permission can be implied
from his use of the shorter route without objection, it is only a
parol license and revocable at the pleasure of the lessor.®*^ So,
also, the lessee of a part of a building cannot claim a right of ac-
cess to his premises through a portion leased to another, where
such access is not granted in the written lease, and there are
other means of access to the leased premises, merely because this
method of access would be more convenient for him. If the
access through the other portion of the premises were an ease-
ment whi(!h attached to his use of his premises, or if it were the
only means of access to the portion of the building occupied by
the tenant before his term it might be claimed by him as neces-
sarily appurtenant to his premises. The case is very different
where its use is a mere convenience to him, but a serious injury
to the rental value of other portions of the house."^ The tenant
in taking a lease of land, must inquire and ascertain for him-
self the means of access. The mere silence of the landlord as
to the existence or non-existence of a road by which access to the
land may be had, is not fraud. If the lessor asserts that there is
a road by which access to the premises may be had, it is fraud on
his part if the assertion is false. The lessee Avill not be justified
in assuming that there is an established road to the premises, be-
cause there may be signs of travel. lie must look to it himself,
and, if he sluill lease a tract of land to which there is no access,

80 Motes V. Bates, 4 Ala. 371. "' Ward & Co. v. Robertson, 77

Iowa, 159, 161.

PROPERTY WHICH IS INCLUDED IN THE LEASE. 419

the lessor's subsequent promise to build a road is not supported
by the consideration that, witliout the road, the lessee will not
be able to pay his rent. The mere fact that the lessee, relying
upon the promise of the lessor to build, a road, omitted to do so
himself, and thereby failed to get his crops in season, is not
such a disadvantage as would constitute a consideration for a
promise by the lessor. To have that effect, it must appear that
•the disadvantage was suffered at the request of the promisor, ex-
pressed or implied.*'- But a covenant in the lease by the lessor
that he will build a road or provide access where none exists is
valid and enforeible by the tenant. A covenant by the lessor
that he "will provide a suitable right of way to get to and from"
the premises which are surrounded on all sides by land of others
than the lessor is not a mere warranty that there existed a right
of way by necessity over the land of others. It is therefore not
performed by showing that such a mode of access exists and evi-
dence to that effect is therefore inadmissible. The covenantor
agrees to do something for the lessee. He must by purchase or
otherwise secure a right of way over the land of adjacent pro-
prietors and if he fails to do this he is liable to the lessee for
what the latter has had to pay to owners of other land for a
suitable right of way over it.**^

§ 281. Tenant's right to use of stairways and halls. A land-
lord who lets rooms, apartments or offices on the upper floor of
a dwelling house or other building, covenants by implication,
that the lessee shall have a free and uninterrupted use of the
stairway, halls and entrances, both for himself and his visitors.
The right of the lessee under such circumstances is in the nature
of an easement, to the use of the entry-way. hall and stairways
leading to the floor or apartments occupied by him.®* Thus, in

C2 Handrahan v. O'Regan, 45 not shown that the passage way

Iowa, 298, 300. had been in the exclusive occupa-

63 Bunker v. Pines, 86 Me. 138, tion of A. Dyne v. Nutley, 14 C.

140, 29 Atl. Rep. 959. A means of B. 122, 2 C. L. R. 81.
access through the demised prem- e4 Weil v. Munro, 3 N. Y. Supp.

ises to other property of the les- 25; Miller v. Fitzgerald Dry Goods

sor, which had always been used Co.. 62 Neb. 270, 86 N. W. Rep.

by tenants of such other prop- 1078; Chase v. Hall, 41 Mo. App.

erty, does not pass by a demise of 15; Cowan v. Truefitt, 67 L. J. Ch.

a tenement "now of late in the 695, 2 Ch. 551. 79 L. J. (N. S.) 348,

occupation of A," where it was 47 Wkl. Rep. 29.

420 LAW OF LANDLORD AND TENAJSTT.

an English ease, it was held that a tenant who rented two rooms
on the second floor, had an absolute right to the use of the door
bell, the knocker, a skylight which lighted the stairway, the stair-
way itself, a closet in the hallway and of all other conveniences
in the building necessary to the proper and comfortable enjoy-
ment of the part leased by him.^^ An action by the tenant will
lie against the landlord either in damages for removing such
conveniences or in equity for an injunction to restrain the land-
lord from interfering with them.*'^ So, too, the tenant of a lower
floor cannot, either under his lease or by the direction and au-
thority of the lessor, obstruct the stairways or halls, or the
means of access thereto, so as to prevent or impede access to the
rooms of a tenant on an upper floor,^^ for if there are several
tenants in the building, entrance to which is through a single
door and hallway, the right of all and any of them to use the
premises is subject to the right of all the others to make an
equal use of the common entrance and no one of them has an
exclusive right to such use.^^ For it is well settled that the right
of a tenant to use an exit or egress to and from the portion of
the premises occupied by him, whether for himself, his visitors
or his goods, must be used so as not to inconvenience the other
tenants unnecessarily.®® The right to use closets contiguous to
rooms rented in an office building and the wash basins therein
and the elevators, hallways, stairs and entrances to the building
are included in the lease, even though they are not specially
mentioned. ■'^ Nor can the landlord by reason of an express cove-
nant permitting him to alter or repair the stairway, so materi-
ally alter its location that the access of the tenant of the upper
floor is materially affected. And, if by altering the entrance

60 Underwood v. Burrows, 7 Car. 68 Misc. Rep. 123, 77 N. Y. Supp.

& P. 26. 91. In Hamilton v. Graybill, 19

06 Miller v. Fitzgerald Dry Goods Misc. Rep. 521, 43 N. Y. Supp.

Co., 62 Neb. 270, 86 N. W. Rep. 1079, the right of a tenant to use

1078. a water closet on his floor was

«7 Miller v. Fitzgerald Dry Goods decided, and it was said that the

Co., 62 Neb. 270, 86 N. W. Rep. existence of the closet "may have

1078. been materially persuasive upon

08 Perry v. Skinner, 116 Mass. the respondent when he accepted

129. the lease of the rooms, and which

Of Browning V. Dalosme, 5 N. Y. because not expressly excluded

Super. Ct. 13, 195. passed with the demise, although

70 Hall V. Irwin, 78 App. Div. not particularly alluded to."
107, 79 N. Y. Supp. 614, reversing

PROPERTY WHICH IS INCLUDED IN THE LEASE. 421

and hallway the landlord gains a larger hallway, he cannot ob-
struct it, if by so doing, he deprives his tenant of the convenient
access that he had beforeJ^ While the tenant is entitled to the
free use of all exits and means of going upon the demised prem-
ises which exist when he takes the lease, he may not be entitled
to the benefit of doorways and entrances created by the landlord
subsequently thereto and which are not absolutely necessary to
him for the proper enjoyment of the demised premises. Thus,
where a doonvay was cut by the landlord which leads into the
demised premises (a saloon) from a hotel adjacent, after the
lease had been made and the lease contained no covenant con-
cerning the use of such doorway, the landlord is not necessarily
bound to keep it open for the benefit of the tenant and its use
by the tenant, when permitted by the landlord, may be revoked
by him at any time.'- Thus, to sum up, the rule is that the ten-
ant is entitled to access to his premises and if he has this, he
cannot extend it beyond what he had when he entered into pos-
session. Nor, on the other hand, has the landlord a right to
curtail the means of access which existed when the term began.
One who rents a lower floor knowing that the upper stories are
to be used for purposes which render the use of a stairs and ele-
vator necessary, takes his apartments subject to the right of the
tenant upstairs to use the stairway and elevator and to have ac-
cess to the same through a hall on the lower floor.'^ As between
the tenants of upper and lower floors it is obviously out of the na-
ture of things that the latter must in very many cases submit to
inconvenience in the use and enjoyment of his premises in order
that the foi-mer may have proper and convenient access to his
premises. This should be reduced to a minimum and while the
tenant of the upper floor must use the means of access on the
the lower floor so as to inconvenience the lower tenant as little
as possible, the latter must not obstrux3t such means of access.
As against his landlord a tenant has an absolute right to access
where the only means of access to the second story of the build-

71 Lindblom v. Berkman, 43 or hallway gives him no right to

Wash. 356, 86 Pac. Rep. 567. The impede it.

stairway being the only means of •- Shaft v. Carey, 107 Wis. 273,

egress passed to the tenants of 83 N. W. Rep. 288.
the upper floors as an appurte- 73 Benedict v. Barling, 79 Wis.

nance. The fact that the landlord 551, 48 N. W. Rep. 670.
increases the size of the stairway

422 LAW OP LANDLORD AXD TENANT.

ing was a temporary stairway which was partially bnilt over a
stranger's property. The tenant on the removal of this stairway
has a right to construct another on the premises of the land-
lord, though by doing so he may injure the occupant of a lower
story. On the other hand, the landlord under such circum-
stances is entitled to have his convenience and interest taken into
account in the selection of the mode of constructing the new
stairAvay, and the place where it shall be put.'^* Generally an
express stipulation for access to an upper floor will be construed
liberally in favor of the tenant. A provision in a lease of upper
rooms in two adjoining houses that the tenant shall have free
and unobstructed use of a stairway in one of them will permit
him to use a stairway in the other house, which is the only means
of access to both his apartments."'^ The tenant's use of the stairs
and entryways must be reasonable. He can use them for exit
and egress not only for himself and family, but for his guests
and business callers. He cannot use them for storage purposes
nor as a loitering place to indulge in social intercourse. The
right of a tenant to the use of a hallway or alley to gain admit-
tance to the premises for ordinai'y housekeeping purposes, does
not permit him to use the same as an entrance to a gymnasium
connected with a boys' school. Nor can he use the common
means of access to his apartments and that of others in such a
way as to be objectionable to other tenants without their con-

'* Chase v. Hall, 41 Mo. App. 15. ate easements in favor of a ten-
The lease of rooms in an upper ant, and in case of necessity an
floor includes as an incident easement may be implied. Neithisr
everything necessarily used with the landlord nor any other ten-
or reasonably necessary to the use ant either by virtue of the ten-
thereof. If there is no access to ancy or by authority of the land-
the upper rooms except through lord has any right to obstruct the
the entryway and stairway an entry or passageway so as to im-
easement In the same for the ten- pede access to rooms occupied by
ant and for his customers and other tenants and any obstructions
visitors will be clearly presumed are nuisances and may be re-
from the circumstances and from moved. Miller v. Fitz Gerald Dry
the obvious intent of the landlord Goods Co., 62 Neb. 270, 272, 86 N.
in constructing the building and W. Rep. 1078.

leasing it in the way he did. A fr Cowen v. Truefitt, 67 L. J. Ch.

tenant may not acquire an ease- 095; (1898) 2 Ch. 551, 79 L. T.

ment by prescription against his 348, 47 W. R. 29.
landlord. But a landlord may ere-

PROPERTY WHICH IS INCLUDED IN THE LEASE. 423

sent.''® The landlord's implied oblifration to furnish means of
access is confined to the ordinary means as afforded by stairs,
hallways and doors suited to the ordinary demands of modern
life. The landlord is under no implied obligation to the tenant
to furnish him fire-escapes even where the duty is imposed
upon him specifically by statutory regulation. The owner of a
theatre is not bound to the lessee thereof, to provide it with addi-
tional exits for use in case of fire as required by statute where
he has only covenanted to keep the premises in ordinary repair
or to maintain the property in a suitable condition for use. His
failure to do so when requested by the tenant is not a breach of
a covenant for quiet enjoyment. ^^ The owner of a building let
out in separate offices or lofts for business purposes is by im-
plication bound to afford means of access to and from the sev-
eral apartments or offices at all reasonable times and under all
reasonable eircumsatnces. He would, for example, be bound to
keep the front door of the building unlocked during the hours
that the several offices or lofts would be in use according to the
circumstances of the tenant's occupation. If he knew that a
tenant hired offices with an intent to use them daring the night
as well as during the day, he would be under the necessity of
affording him access after dark. But in the case of a building,
the offices in which are let mainly to lawyers, the landlord is
under no implied obligation to keep the front door open and un-
locked during the night or upon a Sunday or a holiday Avhich is
dies iion in the absence of an agreement by him to that effect.
His failure to do this does not render him liable to a tenant for
damage caused to the property of his tenant by reason of an
unusual and unprecedented fire which took place upon a Sunday,
because the tenant was not able to remove his personal property
through the front door A\hich was closed and locked.''*

"c Gooch V. Furman, 62 111. App. used they greatly obstruct access

340. to the premises on the upper

77 Taylor v. Finnigan, 189 Mass. floors occupied by other tenants.

568, 573. 76 N. E. Rep. 203. A The tenant on the first floor must

lease of the first story, basement not, however, use or keep the

and cellar "with the appurte- hatchway open unnecessarily, but

nances" give a lessee the right to must use it only in good faith

use a hatchway, tackle and fall to to let down or hoist up goods,

deposit his goods in the cellar or Browning v. Delasme, 5 N. Y. Su-

to hoist them to the second fioor, per. Ct. 13, IS.

though while they are being thus 7s Whitcomb v. Mason, 102 Md.

424 LAW OF LANDLORD AND TENANT.

§ 282. The right to use an elevator. Growing out of the
proposition that where a tenant hires a room or a floor in a
building the right to use all apparent means of access and exit
passes to him as an appurtenant, it may safely be said that in
some cases an absolute right to the use of an elevator would be
implied in favor of a tenant. It is obvious that in modern build-
ings of very great height which are leased in separate apart-
ments or offices to separate tenants, the use of the stairway and
halls affords a very insufficient and inadequate means of access.
In such buildings, as is well known, elevators for freight and
passengers are usually installed. If, at the time of the hiring
it should happen that there is no elevator in the building, and
the tenant hires knowing this fact, it may well be doubted, in
the absence of an express agreement, whether the landlord owes
any duties to the tenant to install an elevator for his use. On
the other hand, if the location of the premises which have been
hired is such that access by way of the stairway is extremely in-
convenient and particularly if it were the custom in the city
where the building is located to have elevators in buildings of
the character in question, an agreement might be implied on the

275, 62 Atl. Rep. 749. "The rea- building on Sunday as shown by
sonable use of the outer doors, the evidence, through the open
halls and stairways of such a door and hallway on the ground
building so located so far at least floor, which connected with the
as related to the lawyers' oflfices stairway, was in our opinion rea-
required that they should be kept sonable and adequate for all ordi-
open and free from improper ob- nary occasions. As illustrating
struction during such hours of the the principles of the text it may
day and evening as the tenants be well to cite certain cases where
and persons having business with the use of halls and stairways was
them might reasonably be expected involved as between owners and
to desire access to the offices. But not as between landlord and ten-
such use did not require that the ant. Thus, we have the case of
doors, halls, etc., should be kept one building being erected on sev-
in that condition throughout the eral lots, each of which lots are
entire night, nor on Sunday, owned by separate owners, with
which is dies non when secular one stairway giving access to the
avocations are presumed to be building. In such cases each
suspended. It certainly did not ov/ner would have the right to use
require the outer doors to be Jvcpt the stairway and hall in common
open on Sunday to such an extent which were passed by the convey-
as to admit of the removal by the anc^ of his lease." Pierce v. Cle-
tenants of large pieces of furni- land, 133 Pa. St. 189, 19 Atl. Rep.
ture. The access afforded to the 352.

PROPERTY WHICH IS INCLUDED IN THE LE.VJSE. 425

part of the landlord to install one. But if, on the other hand,
there is an elevator in active operation when the office in the
building is leased, it will unquestionably be implied that the
landlord agrees to maintain it and to permit it to be used, if its
use is reasonable and necessary for the beneficial occupancy of
the rooms which have been let, and if from the construction of
the elevator and of the passageways in the building, it was ap-
parent that the elevator was intended for the general use of the
tenants. But, where the elevator is not intended to be used, by
the occupants of any particular part of the building, the mere
fact that it might be convenient for them to use it does not imply
any easement in its use where suitable means of access were fur-
nished by the halls, passageways or doors. "Where a person be-
came the tenant of a basement which was entered from the street
by doors and steps in front of the building and which was sep-
arated from the elevator by a solid brick partition so that there
was at no time access to the elevator from the basement, the ten-
ant is not entitled to use the elevator for hoisting goods from the
basement to the sidewalk and lowering them from the sidewalk
to the basement. The fact that while the tenant occupied rooms
on an upper floor of the building in addition to occupying the
basement, the landlord stipulated in the lease that he might use
the elevator to convey his goods to the basement from the upper
floor gives him no right to use the elevator after he has ceased
to occupy the upper floor.'^^

T9 Cummings v. Perry, 169 Mass. ants to use it, we assume, may be
150, 38 L. R. A. 149, 47 N. E. Rep. implied if this is reasonably nec-
618, in which the court by Field, essary for the beneficial occupa-
C. J., says: "It is true that, when tion of the rooms let, and if from
a person hires a room in a build- the construction of the elevator,
ing, a right to use the apparent and of the passageways it is ap-
means of access and exit often parent that the elevator was in-
passes as appurtenent to the prem- tended for the use of the tenants,
ises hired. In modern buildings But in this case it is apparent that
of great height this doctrine we the elevator was not intended
assume may be applied to eleva- originally to be used by the occu-
tors. Whether an active duty to pants of the basement room, that
maintain an elevator for the use although it might have been con-
of tenants can be implied may be venient for them to use it in con-
open to question, but if an ele- nection with the sidewalk, yet
vator is in fact maintained by the suitable means of ingress and
landlord, the duty to permit ten- egress had been furnished by the

426 LAW OF LANDLORD AND TENANT.

§ 283. Electric light as an appurtenant. Under the rule that
whatever is neeessar^^ or essential to the proper enjoyment of
the term granted to the tenant may be regarded as and will pass
as an appurtenant, a landlord, who during the term, has fur-
nished electric lighting for rooms in the building leased by him
may be compelled to continue to do so. Undoubtedly he would be
compelled to do this upon an express contract to furnish the light
where he or his agent in leasing the rooms had informed the les-
see, expressly or by implication that the supplying of electricity
for illumination was an appurtenance of the premises and would
be included in the lease as such, and the incoming lessee made
the lease in reliance upon such statement. The tenant's case
would be greatly strengthened by the fact that the character
of the business of the lessee was known to the lessor or to his agent
to be such that electric lighting was indispensable. For, if the
incoming tenant is lead to expect the electric lighting of his
rooms at the cost of the landlord, it may fairly be assumed that
the latter is to be compensated for it by a larger rent than he
would otherwise receive. The tenant has a right to this species
of illumination of which he cannot be deprived by the substitu-
tion of an inferior lighting method. Such deprivation might
under some circumstances amount to an eviction though not
necessarily an eviction under other circumstances.^** And these
rules which are applicable to the gas or electric lighting may
apply with equal cogency to other and similar modern improve-
ments such as steam heating and the like which, in accordance
with the present method of living, in flats and apartments, are
regarded as indispensable to a complete and adequate enjoy-
ment of them by those who occupy them as lessees.

§ 284. Easement of w^ater supply. As a general rule it may

be said that it is not the duty of the landlord to furnish water

for the tenant to be used for drinking or cleaning purposes un-

' less he has expressly or by implication agreed to clo so. Nor is

he under any obliiration to supply pipes or faucets for the dis-

steps and door.s from the base- room; and the way through the

ment room into the street; that engine and boiler room was not a

at no time was there any access common passage way."

from the elevator directly from «p Parish v. Vance, 110 111. App.

the basement room; that the ele- 50, 55

vator did not adjoin the basement

PROPERTY WHICH IS INCLUDED IN THE LEASE. 427

tribntion of water unless by agreement, express or implied.*^
This general rule must be qualified by the circumstances of some
cases. Thus if at the date of the execution of the lease the
premises are supplied with water by a system of pipes and fau-
cets which has either been installed therein by the landlord him.-
self, or by his predecessor in interest, and if prior to the date of
the lease the landlord has paid the water rates and taxes for
the premises, the water together with the means by which it is
distributed throughout the building and utilized by the tenants
will pass as an appurtenance, being an incident of the building
to the knowledge of the landlord and essential to its convenient
enjoyment and use by the tenant. Under such circumstances,
nothing short of an express agreement on the part of the tenant
to furnish water and the apparatus for its distribution at his
own expense would justify the landlord in discontinuing to pay
the water rates or in removing the apparatus for its supply and
distribution. But the rule of caveat emptor as applied to ten-
ants may be invoked in the case of the quality or quantity of
water which is supplied. It is the duty of the tenant of a
dwelling or slore to ascertain the condition and quantity of
water supplied and the condition of the pipes by which it is
supplied to the house and distributed through it. If he fails to
do this at the date of the lease, he cannot hold the landlord re-
sponsible for a deficiency in the quality or quantity of the water
and refuse to pay rent because he cannot procure water on the
premises except in the case of material misrepresentation by
the latter.*- In regard to the water supply, a tenant is not
justified in removing from the premises and refusing to pay
rent for the reason that the water gives out or has become
unfit for use where it appeared that he had examined the water
supply before making the lease, going over the property in com-
pany with one of the lessors and then knew that the premises
were supplied vnih water by a cistern only, the supply depend-
ing wholly upon the rainfall, that the lessor had only recently
acquired the ownership and that what he said to the lessee about
the quantity and quality of the water was merely a repetition

81 Sheldon v. Hamilton, 22 R. I. S2 Lewis v. Clark. S6 Md. 327,

2S0, 233, 47 Atl. Rep. 316; White- 330, 37 Atl. Rep. 1035.
head v. Comstock & Co., 25 R. I.
423, 427, 56 Atl. Rep. 446, 448.

428

LAW OF LANDLORD AND TENANT.

of what a former owner had told him and that the lessee knew
this when he executed the lease. ^^ In modem times the presence
of apparatus and i^ipes for the supply of water together in build-
ings in towns and cities by which the tenants occupying such
buildings are supplied with water for drinking and washing pur-
poses is so well nigh universal that ordinarily such a supply of
water with the apparatus and pipes would be considered an ap-
purtenance in case the demised premises were in the city. A
very different rule would obtain where the premises were in a
small village or were a farm. If running water is an absolute
necessity for the tenant to have in order that he may use the
premises, a right to use the running water which is in the prem-
ises will pass as an appurtenance to the premises. The character
of the prior use of the building is always material. Thus, a
lease of a factory which at the date of the lease contained mach-
inery operated by water power by implication conveys the right
to use water which is under the control of the lessor.®* The
designation in the lease of the pui-pose for which the demised
premises is to be used is also material. If the future use of the

83 It is not the duty of a land-
lord to furnish water for the use
of a tenant unless he has agreed
to do so. The pipes and fixtures
are appurtenances of the house, as
gas pipes and fixtures in place at
the time of the letting are, and
the use of them necessarily passes
"With the tenement. But the water,
like gas, is a commodity, and in no
way attached to the realty not
the property of the landlord, but
to be furnished for a price by a
third party. It was not the duty
of the landlord to keep the pipes
in repair even (McKeon v. Cutler,
156 Mass. 296), much less to keep
them filled with water. An agree-
ment on the part of the landlord
to pay water bills or gas bills may
be implied from circumstances,
but the fact alone that the house
is provided with pipes and fixtures
is not sufficient. McCarthy v.
Humphrey, 105 Iowa, 535. By the

court in Sheldon v. Hamilton, 22
R. I. 230, 233, also holding that
an implied obligation on the part
of the landlord to pay for water
used by his tenant might arise
from a general custom which the
law would attach to the lease but
the custom would have to be uni-
versal and reasonable. In the ju-
risdiction where this case was de-
cided water was supplied to be
paid for either by meter measure-
ment by the cubic foot or at a
fixed sum for each faucet, bath
tub, etc. In the latter case the
landlord knows in advance what
he will have to pay and the infer-
ence that he has agreed to pay
it and has charged it in the rent
is stronger than where the amount
is unknown and may by the ten-
ants waste be very great if it is
to be paid according to a meter."
84 Wyman v. Farrar, 35 Me. 64.

PROPERTY WHICH IS INa.UDED IN THE LEASE. 429

building by the tenant requires the supply of running water, the
right to have the water kept running by the landlord will pass
as an appurtenance without express words. So a lease of a por-
tion of a building "to be used as a bakery" includes the right
to water as belonging and necessary to enable the lessee to carry
on the business of a baker.^^ One of several tenants to whom a
building is let in separate apartments may not use water run-
ning in the apartment of another tenant unless by an express
agreement of the landlord and the consent of the tenant he is al-
lowed to do so. The entrv' of one tenant into the apartment of
another without the consent of the latter, for the purpose of pro-
curing water is a trespass and intrusion which the law does not
countenance. "Where a building is let in separate apartments
to several tenants, each of them has the absolute right as an ap-
purtenance to that portion which is demised to him to use the
toilet and running water in a portion of the building which is
Tinder the exclusive control of the landlord. It does not matter
whether the right to the use of water is conferred by an express
provision of the lease or not. If, when the lease of the separate
apartment is made, the tenants of the building have a right to
use the water and the toilet which is located in a portion of the
same under the exclusive control of none of them, that right will
unquestionably pass as an appurtenant. But the right of a ten-
ant to use a toilet and running water in that portion of a build-
ing which is not leased to him and which is conferred upon him
by an express provision of the lease, will be protected by an in-
junction, and the landlord will be restrained from obstructing
the tenant's enjoyment of this right by closing a passage way,
though there were other means of reaching the running water.^®
A lease of the ' ' north side " of a building ' ' consisting of a store-
room, and five rooms on second and third floors of the same, to-
gether with access to the same through the hallway and porch,"
does not give the lessee the exclusive privilege of using a bath
room on the north side which was in common use by all ten-
ants.®'' A landlord who agrees with his tenant "to furnish the
necessary seed rice and the water for irrigation of the rice crop

85 Gans V. Hughes, 14 N. Y. s- Needy v. Middlekauff, 102 Md.

Snpp. 930, 931. 181, 62 Atl. Rep. 159.

8R Cooley V. Cummings, 16 N. Y.
St. Rep. 947.

430 LAW OP LANDLORD AND TENANT.

or SO much water as can be furnished by the irrigation well on
the land" is not absolutely bound to supply irrigation for the
Avhole crop. His obligation is measured by the capacity of the
well and if the well flows sufficiently he must furnish water for
the whole crop. He is bound to do what he has. agreed to do in
all respects and he will not be excused for failure to do so
though he may have used ordinary care and diligence to supply
the water. ^^

§ 285. The riparian rights of the lessee. In treating of the
rights of a tenant who has leased lands which front or face upon
a river, lake or stream whether navigable or not, it will be im-
possible owing to the limits of space and indeed out of place in
a treatise of this character, to give any exhaustive or extended
consideration to the general law of waters or water courses. In
determining the rights of a lessee of riparian lands to the use
of the water or of the land under water, the first thing to be
determined is the character and extent of the rights of his les-
sor in the waters or in the land under water. As regards the
ownership of land under water, it may be said that so far as
non-navigable streams are concerned, each riparian proprietor
owns the land under water down to the thread or center line
of the stream in the absence of proof to the contrary. Prima
facie, therefore, a conveyance of land bounded by a non-navi-
gable stream makes the grantee the proprietor of half the land
covered by the stream ad medium filiim aquae. So, a demise of
land "bounded on the west by the river," in the absence of any-
thing to the contrary, conveys therein to the lessor one-half of
the bed of the soil of the river to the middle of the stream.^^
The lessee of riparian land is clothed with all the rights which
were enjoyed by his lessor in the land under water. He may
erect piers upon land under water for his own personal use or
for the use of the public with his permission. He may erect a
mill and employ the force of the running water to operate and
propel the machinery in it. He may prevent the diversion of
the water. For a lessee of riparian land is clothed with the
same rights as an owner in possession to prevent a threatened
diversion of water."" A lease of land having a frontage on the

«8 Duson V. Dodd, 101 S. W. «" Dwyer v. Rich, Ir. R. 6 C. L.

1040. 144.

8" Crook V. Hewit, 4 Wash. 749.

PROPERTY WHICH IS INCLUDED IN THE LEASE. 431

water confers upon the lessee by implication the right to a free
and unrestricted access to the shore from the water and to the
water from the land, in the absence of express restrictions. The
tenant therefore, has a right to moor his boats at the shore and
to permit others to do so and to erect and maintain wharves. It
is immaterial whether the word "appurtenances" is in the lease
or not. So, when a boat club leased land fronting on a river with
all the benefits and privileges thereunto belonging, the action
of the landlord in mooring a boat in front of the leased land
is unlawful and so far as it cuts off the boat club from using the
water front it is an eviction."^ So, a lessee of water front prop-
erty is entitled to the use of a dock attached to the water front
for a permanent purpose and connected with it by a permanent
staging.®- So. also, a lessee of riparian land has the right to all
the advantages to be derived from the stream flowing in its
natural course over and past his land, and to use the stream as
he pleases for any purpose of his own which is not inconsistent
with similar rights in the proprietors or occupants of riparian
lands, below or above. This rule as to the use of flowing streams
is applicable both to navigable and non-navigable streams. None
of the proprietors or occupants of land under or facing on water
can legally diminish the quantity or injure the quality of the
water which would otherwise naturally descend, nor can any
proprietor or occupant of land throw back the water without
the license or grant of the proprietor above.^^ So, where a lease

01 Pridgeon v. Boat Club, 66 same unobstructed." See, also,
Mich. 326, 33 N. W. Rep. 502, Hooper v. Farnsworth, 128 Mass.
where the court says: "The sub- 4S7; Underwood v. Stuyvesant, 19
ject cannot be discussed, except in Johns. (N. Y.) 181, 10 Am. Dec.
connection with the object and 215; Newman v. Metropolitan El.
purpose for which the lot was R. Co., 10 N. Y. St. Rep. 12; Oliver
rented and occupied. The dis- v. Dickinson, 100 Mass. 114.
turbance of the lessee's beneficial 92 Cochran v. Ocean Dry Dock
enjoyment of the water front of Co., 30 La. Ann. 1365, 1366.
the premises amounts to an evic- o?. Merritt v. Brinkerhoff, 17
tion, actual if any exists and not Johns. (N. Y.) 306, 320; Hetrick
constructive. The right to enter v. Deutschler, 6 Pa. St. 32; Wood-
up the land leased was of no in- bury v. Short, 17 Vt. 387; Wallace
terest or benefit to the defendant, v. Drew, 59 Barb. (N. Y. ) 413,
only as it furnished a water front 423; Acquackanonk Water Co. v.
upon which the club could store Watson, 29 N. J. Eq. 366; Mason
its boats and launch and land the v. Hill, 5 B. & Aid. 1, 24; Wright

432 LAW OF LANDLORD AND TENANT.

conveyed the riglit to draw a certain quantity of water from a
canal owned by the lessor to the mills of the lessees, and con-
t-ained a raservation excepting and reserving to the said lessors
the control of the water in the said river and in all mill ponds,
bays, lakes and reservoirs at and above said premises with the
right of holding back and retaining and discharging the water
therefrom at their pleasure, it was held that the lessors could not
at their pleasure erect a barrier to prevent the flow of water
into their canal and in such way terminate the lease where such
course was not necessary in their general control and manage-
ment of the Avater."* Every tenant or occupant of riparian land
has a right to the use of water flowing by his land for his domes-
tie purposes as for watering his cattle. He may divert the stream
for the purpose of irrigating his land provided he does not
thereby interfere with the rights of proprietors below or above
him.*^' So, also, a tenant may divert the water of a. flowing stream
and he may by machinery pump up the water and convey it by
pipes to a tank or reservoir and thence into his bams or dwel-
ling house and there use it for his domestic purposes. Priority
of occupation and use of water by a mill owner give him no
right to make an unreasonable use of the water by which the
owners above or below him will be deprived of the beneficial use
of the water. He simply acquires the right to use the water* in
its natural flow. The lessee of a mill site has no greater right
tx) use the water than the lessor would have.®^

V. Howard, 1 Sim. & Stu. 190, 203; tion or alteration. No proprietor
Acton V. Blundell, 12 M. & W. 348, has a right to use the water to
349. the prejudice of other proprietors
64 Cole V. Lake Ck)mpany, 54 N. above or below him, unless he has
IL 242. a prior right to divert it or a title
»s Blanchard v. Baker, 8 Me. 2&8. to some exclusive enjoyment. He
86 The elementary and estab- has no property in the water It-
lished principles of law relating self, but a simple usufruct while
to the use of running waters as it passes along. Agua currit et
set out by Chancellor Kent in his debet currere ut currere solebat
Commentaries, vol. Ill, § 52, are is the language of the law.
as follows: "Every proprietor of Though he may use the water
lands, on the banks of a river, has while it runs over his land, as an
naturally an equal right to the use incident to the land he cannot un-
of the water which flows in the reasonably detain it, or give it
stream adjacent to his lands, as it another direction, and he must re-
was wont to run, without diniinu- turn it to its ordinary channel

PROPERTY WHICH IS INCLUDED IN THE LEASE.

433

§ 286. Right of the tenant to accretions. It is a general rule
that accretion by alluvion belongs to the owner of the adjacent
soil. In other words, one who owns land M^hich borders upon
waters, whether navigable or non-navigable, acquires title to all
additions to the land which are caused by the gradual deposit
of particles of soil, which deposit is called alluvion, irrespective
of the fact that such deposit was or was not the result of natural
causes. Deposits made upon the sea shore are usually the result
of the natural action of the winds and waves. In the case of
streams and rivers, the accretions may result from natural
causes, as the washing down of silt from up stream by the opera-
tion of the current, or from artificial causes, as, when a dam is
erected by which the volume of the water is diminished, or its
course deflected. In either case provided the growth of the addi-
tion is so slow as to be imperceptible, the added land belongs
to the owner. He takes it, however, subject to the interests of
any person to whom he has granted an estate in the land border-
ing upon the water. Thus, a lease for a long period of years of
a tract of land described as bounded bv the banks of a river con-

when it leaves his estate. Without
the consent of the adjoining pro-
prietors he cannot divert or di-
minish the quantity of water
which would otherwise descend to
the proprietors below, nor throw
the water back upon the proprie-
tors above, without a grant or
an uninterrupted enjojTnent of
twenty years which is evidence
of it. The owner must so use and
apply the water as to work no
material injury or annoyance to
his neighbor below him, who has
an equal right to the use of the
same water. Streams of water are
intended for the use and comfort
of man and it would be unreason-
able and contrary to the universal
sense of mankind to debar every
riparian proprietor from the ap-
plication of the water to domestic,
agricultural and manufacturing
purposes, provided the use of it
28

be made under the limitations
which have been mentioned, and
there will no doubt inevitably be,
in the exercise of a perfect right
to the use of the water, some evap-
oration and decrease of it, and
some variation in the weight and
velocity of the current. But de
minimis non curat lex and a right
of action by the proprietor below
would not necessarily flow from
such consequences, but would de-
pend upon the nature and extent
of the complaint or injury. All
that the law requires of the party
by or over whose land a stream
passes is that he should use the
water in a reasonable manner,
and so as not to destroy or render
useless the application of the water
by the proprietors above or below
the stream." Acquackanonk Wa-
ter Co. V. Watson, 29 N. J. Eq. 366,
370.

434 LAW OP LANDLORD AND TENANT.

fers the right upon the tenant to occupy land which is created
by accretion during the term.®' And a lease of accretion created
after the land to which it has been added had been leased and
before a grant in fee to the first lessee, does not convey the re-
version in fee in the accretion to the second lessee but the fee is
conveyed to and becomes vested in the first lessee by the subse-
quent grant to him.®^ But when the lease has expired, the par-
ties may make a new contract which may or may not include the
land which has formed by accretion. And where under a long
lease the rental of the land is to be determined by an ap-
praisal of its value at intervals, the lessor is entitled to have
accretions which have been formed by the rescission of a river
taken into account.^® The same principles and rules are appli-
cable to reliction which is the increase of land by the retreat or
recession of water from the shore of a lake, river or sea. The
owner of property which is stranded upon the land of another by
a flood or by the gradual flow of a stream does not thereby lose
title to it. It does not thereby become the property of the owner
■of or of the occupant of the land. The owner of the stranded
property may abandon it or not as he may elect. He may enter
upon the land to remove his property and his refusal or neglect
to do so does not confer title upon the occupant or owner of the
land. The landowner may, after notice to the owner of the
stranded goods, cast them back into the water. As against a
landlord owning riparian land and his tenant, the tenant may
hold stranded property which is cast upon the demised premises
though his possession thereof confers no title upon him as against
the true owner.^

§ 287. Ice forming on land demised. Ice which forms on the
surface of a non-navigable stream is the property of the owner
of the bed of the stream or pond.^ Hence, the landowner or his

oT Rutz V. Kehn, 143 111. 558, 20 Foster v. Juniata Bridge Co., 16

N. E. Rep. 553, following Cobb v. Pa. St. 393, 55 Am. Dec. 506; Et-

Lavalle, 89 111. 331, 335, 31 Am. ter v. Edwards, 4 Watts (Pa.) 65;

Rep. 91. Berry v. Carle, 4 Greenl. (Me.)

08 Rutz V. Kehn, 143 111. 558, 29 269; Treat v. Lord, 42 Me. 552;

N. E. Rep. 553. Carter v. Thurston, 58 N. H. 104,

no Allen v. St. Louis, I. M. & S. 42 Am. Rep. 584; Sheldon v. STier-

R. Co., 137 Mo. 205, 38 S. W. Rep. man, 42 N. Y. 484; Brown v. Chad-

957. bourn, 31 Me. 9, 50 Am. Dec. 641.

1 Upon the general topic see ~ State v. Pottmeyer, 33 Ind. 402,

PROPERTY WHICH IS INCLUDED IN THE LEASE.

435

assigns liave the right to harvest it and dispose of it subject to
the rights of other riparian owners. The lessee of the land upon
which the ice forms has generally and in the absence of an ex-
press reservation in favor of the lessor the same right to dis-
pose of the ice as his lessor would have had but for the lease.^
Ice on leased land as soon as harvested, is the personal property
of the tenant.* Hence, a mortgagee who purchases land on fore-
closure is not entitled to ice cut by a tenant of the mortgagor
before foreclosure, though the pond from which it was cut and
the house in which it is stored are covered by and sold under
the mortgage.^ It follows from this that ice unharvcsted but
on the land at the time of sale under the foreclosure passes
to the purchaser as against a lessee.® We must now consider
the case of ice which forms, not upon water which covers
all or a portion of the leased premises, but which forms on

5 Am. Rep. 424; Brockville, etc.,
Co. V. Butler, 91 Ind. 134, 46 Am.
Rpp. 5S0; Marsh v McNider, 88
Iowa, 390, 395, 55 N. W. Rep. 469,
45 Am. St. Rep. 240, 21 L. R. A.
333; Richards v. Gauffret, 145
Mass. 486; Higgins v. Kusterer, 41
Mich. 318, 32 Am. Rep. 160; Bige-
low V. Shaw, 65 Mich. 341, 32 N.
W. Rep. 800; Myer v. Whitaker, 55
How. Pr. (N. Y.) 376; Reysen v.
Roate, 99 N. W. Rep. 599, 92 Wis.
543.

3 A lease of an artificial pond
to a manufacturing company oper-
ating a steam plant "to be used
for flowage purpose only, with the
exclusive right to flow, store and
use water in the said pond," to a
certain amount, the lease also con-
taining a reservation to the owner
of the exclusive right to take ice
from the pond does not confer the
right upon the lessee to flow into
the pond and store therein hot
water so as to melt the ice, even
though It appear that the original
purpose of the establishment of
the pond was manufacturing and

the taking of ice therefrom had
always been merely incidental.
Walker Ice Co. v. American Steel
& Wire Co., 185 Mass. 463, 70 N.
E. Rep. 937.

4 Ward V. People, 6 Hill (N. Y.)
144; Gregory v. Rosenkrans, 72
Wis. 220.

5 Gregory v. Rosenkrans, 72
Wis. 220.

G The annual ice crop on a pond
which may or may not form every
year, and which if not removed
would perish or melt away, is the
most ephemeral of any of the nat-
ural products of land. The cases
applicable to the cutting of timber
by a tenant do not apply at all.
The ice crop may be likened to
grass or cranberries or other un-
cultivated fruits which grow nat-
urally from the soil; or to the an-
nual crops raised by agriculture;
but less than any of these so far
as its removal would be an injury
to the freehold or affect the value
of the land. Gregory v. Rosen-
krans, 72 Wis. 220, 224.

436 LAW OP LANDLORD AND TENANT.

water npon which the leased premises abuts. Though lui-
harvested ice is more readily secured and controlled than the
water which forms it, the rules which govern the rights of
the riparian owner to water are applicable to it. The use of
the water is appurtenant to the land which it covers and this
right passes to the lessee to vest in him during the continuance of
the lease. He may cut the ice not only for his own use in con-
nection with the enjoyment of the land but for the purpose of
selling it to others as well.^ But a lease of land on the edge of
a mill pond but including no part of the pond, "for the purpose
of building and maintaining an icehouse thereon" and providing
for a forfeiture if it should be occupied for another purpose is
not by implication a lease of the pond nor does it confer a right
upon the lessee to harvest ice.* And the fact that a tenant of
riparian land bordering on a lake or pond was permitted by his
landlord to take ice from the pond, does not of necessity establish
his right to take ice. The permission of one w^ho owns land cov-
ered by water that another may cut and take ice is a mere license
which may be revoked at any time. And it is not material for
how many years the owners permit another to cut and take ice
when the permission is a license merely. The right to cut and re-
move ice may be leased by the riparian proprietor aside from a
lease of the land itself. And the lessee may enjoin or maintain
an action at law against a subsequent purchaser or lessee of the
land attempting to cut ice thereon." A right to cut and take ice
is perhaps more in the nature of a profit a prendre than of an
easement, though it may come within the definition of an easement
under certain circumstances.^" But whether the right to cut ice

■ Marsh v. McNider, 88 Iowa, riparian lands was not to enjoy the

390, 396, 55 N. W. Rep. 469, 45 right to harvest ice.

Am. St. Rep. 240, 21 L. R. A. 333. s Oliphant v. Richman, 67 N. J.

This would doubtless be the rule Eq. 286, 59 Atl. Rep. 241.

where the lease contains no reser- 9 Oliver v. Olmstead, 112 Mich,

vation of the ire which forms on 4S3. See, also, Larman v. Benson,

the water upon which the land 8 Mich. 18, 77 Am. Dec. 435;

abuts There may be circumstance Grand Rapids, etc., Co. v. South

when from the use for which the Grand Rapids Co., 102 Mich. 227.

land is leased or from the circum- lo Walker Ice Co. v. American

stances of the parties a presump- Steel & Wire Co., 185 Mass. 463,

tion would arise that the lessee of 466.

PROPERTY WHICH IS INCLUDED IN THE LEASE. 437

De an easement or not, it cannot be doubted that it may be ex-
pressly or by necessary implication attached to a demise of land.^^
§ 288. The lease of a mill or of a mill privilege. In a lease
of a mill or a mill privilege, or mill site, these words, and similar
expressions will be construed by substantially the same rules as
will apply in the ease of a sale of a mill. Usually the expres-
sions, ''mill dam,-' "mill privilege," "mill site" and other
similar terms, will be construed to include the land upon which
the mill is located, and the buildings, machinery and other fix-
tures necessary or proper to be used in connection therewith as
well as the right to use the water, where the machinery is pro-
pelled by water power, to the same extent as it was used at the
making of the lease. ^' Thus, a mill site or the privilege of a
mill includes not only the site of the mill buildings but also the
use of the water power connected therewith for milling pur-
poses.^^ In other words, a demise or a grant of a mill carries
also the use of the power of water in the stream adjacent thereto,
so far as the same is necessary to its enjoyment, with all of the
incidents and appurtenances so far as the grantor or lessor had
any right to convey them. For the water power which has ordi-
narily been used with the mill is an absolute necessary incident
to the mill and is therefore an appurtenance and will pass as
such even though the word "appurtenance" is not mentioned in
the conveyance.^* The lessee may use the water power and all

11 Where the owner of land con- mond v. Green Bay, etc., Canal
taining a pond leased it to an- Co., 35 Wis. 41, 45, 46; Moore v.
other without reserving the right Fletcher, 16 Me. 63, 65, 33 Am.
to cut ice thereon, which she had Dec. 633, 634; Farrar v. Cooper,
previously leased to a third party, 34 Me. 394, 397; Howard v. Wads-
it was held that the lessor of the worth, 3 Me. 471, 473.

land, having been the agent of the i* Curtis v. Smith, 35 Conn. 156,

owner to collect rents and having, 158; Stackpole v. Curtis, 32 Me.

in such capacity, collected rents 383, 385; Binney's Case, 2 Bland

for the owner from the lessee of (Md.) 114.

the right to cut ice, it would be 1 4 Hammond r. Woodman, 41

presumed from this fact; at least Me. 177, 66 Am. Dec. 219, 223;

where the lease was silent that Farrar v. Cooper, 34 Me. 394, 397;

the parties to the lease of the land Blake v. Clark, 6 Me, 436; Moore

did not reserve the right to cut v. Fletcher, 16 Me. 63; Crosby v.

Ice. Myers v. Bolton, 89 Hun, 342, Brodbury, 20 Me. 61; Richardson

35 N. Y. Supp. 577, 70 N. Y. St. v. Bigelow, 15 Gray (Mass.) 154,

Rep. 198. 156; Prescott v. White, 21 Pick.

12 Anderson's L. Diet. 675; Ari- (Mass.) 341; Church v. Walker,

438 LAW OF LANDLORD AND TENANT.

its incidents in the mode it has been used before he enters.
So, where the owner of an ancient mill to which there has been
attached a raceway or artificial canal for carrying off the water
froin the mill and without the free and uninterrupted current
of which the mill could not be worked and such canal or raceway
has from time immemorial passed through the land of another
and there is no grant or contract regulating the rights of the
parties, the lessee of the mill will have the right during the term
to enter on the land through which the raceway flows and to
clear out obstructions therefrom, in the usual and ordinary man-
ner in which such canals are cleaned.^^ The lease of a mill or a
lease of land on which a mill is situated, or is to be situated, car-
ries with it, as incidents of the mill, the right to raise the mill
pond, and to flow the lands above the mill as high as the dam
has been usually kept up, to maintain the dam and flume which
are necessary to support the water at that height, and to support
and use the penstocks, aqueducts and channels which are neces-
sary to convey the water to the mill, and the channels and race-
ways which are necessary to conduct the water from the mill to
the stream below in the manner in which they have been kept
and used immediately prior to the conveyance, so far at least
as the lessor has a right to convey such privileges.^' For, by
a lease of a mill privilege, particularly where it is mth ail the
appurtenances of the same, there passes all the privileges and
easements which had prior thereto, become attached to the same.
The lessee has the right to erect and maintain a dam, to erect
mills, to flow water upon the lands of the lessor or others so far
as may be necessary for his purpose, to lay logs or lumber on
the land or under Avater and to build and maintain a mill yard.^''

124 Mass. 69; Otto v. Kreiter, 110 (N. Y.) 290; Oakley v, Stanley, 5

Pa. St. 370, 378; Peters v. Grubb, Wend. (N. Y.) 523; Kilgour v.

21 Pa. St. 455; Swartz v. Swartz, 4 Ashcomb, 5 H. & .J. 82; Canham

Pa. St. 353, 359, 45 Am. Dec. 697. v. Fisk, 2 Cromp. & J. 126. A

16 Prescott V. White, 21 Pick. lease of premises to be used as

(Mass.) 341, 342. a tan yard, bordering on a stream,

icDunklee v. Wilton R. Co., 24 flowing over land owned by the

N. H. 489, 495; Pettee v. Hawes, landlord, does not confer the

13 Pick. (Mass.) 323, 327; Gurney right upon the tenant to throw

V. Ford, 2 Allen (Mass.) 576, 578; tan bark into the stream. Howell

Gibson v. Brockway, 8 N. H. 465, v. McCoy, 3 Rawle (Pa.) 256.
471; Leroy v. Piatt, 4 Paige (N. i7 Thompson v. Banks, 43 N. II.

V.) 77; Burr v. Mills, 21 Wend. nw.

: PROPERTY WHICH IS INCLUDED IN THE LEASE. 439

So. the lease or a grant of a "mill site" will be construed to
include all the land on the stream upon which the mill is actual-
ly situated, or, if there is no mill then existing, it will include
such quantity of land as will be proper and necessary for the
purpose under the particular circumstances of the case, the
most material of which is the right of the lessee to avail himself
of the full enjoyment and possession of the water power. As
generally kno-^ii under such circumstances, the use of the soil
on the banks of the stream and under the water is the principle
thing granted and it will be implied that the lessee or grantee
shall have full power to use any portion of the soil for any pur-
poses consistent with operating the mill. So, also, words of
description in a demise of a mill site and of a water power are
not given a restrictive meaning but are usually broadly con-
strued so that the lease of a mill and water power for use in a
saw mill would not of necessity restrain the lessee to such use.
He might use it for any legitimate mill purpose. ^^

§ 289. Action for damages for the violation of an easement.
At the common law an action on the case could be maintained to
recover damages for an injury to the enjoyment of a right of
way.^® And it was also settled that a tenant could maintain an
action where the injury to the easement resulted in a direct loss
or inconvenience to him. If the injury to the easement results in

18 Ashley v. Pease, 18 Pick. is Wetmore v. Robinson, 2
(Mass.) 268, 275. "Where a party Conn. 529; Martin v. Bliss, 5
has erected a mill on his own Blackf. 35, 32 Am. Dec. 52; Hinks
land, and cut an artificial canal v. Hinks, 46 Me. 423; Wright v.
for a raceway through his own Freeman, 5 Har. & J. 467; Cush-
land, and then sells the land with- ing v. Adams, 18 Pick. 110; Bow-
out the land thi'ough which such ers v. Suffolk Mfg. Co., 4 Cush.
raceway passes, the right of such (Mass.) 332; Smith v. Wiggin, 48
raceway shall pass as a privilege N. H. 105; Carelton v. Cate, 56 N.
annexed de facto to the mill and H. 130; Osborne v. Butcher, 26
necessary to its beneficial use. N. J. Law, 308; Lambert v. Hoke,
Johnson v. Jordan, 2 Met. (Mass.) 14 Johns. (N. Y.) 383; Greenwalt
234, 37 Am. Dec. 85; Blake v. v. Horner, 6 S. & R. (Pa.) 70;
Clark, 6 Me. 436; Nichols v. Luce, Shroder v. Brenneman, 23 Pa. St.
24 Pick. (Mass.) 102, 35 Am. Dec. 348; Jones v. Park, 10 Phila. (Pa.)
302." By Tenney, J., in Hammond 165; Shafer v. Smith, 7 Har. & J.
V. Woodman, 41 Me. 177, 66 Am. 67; Marshall v. White, Harp. 122;
Dec. 219, 223. See, also. New Ips- Wilson v. Wilson, 2 Vt. 68
wich Factory v. Batchelder, 3 N.
H. 190, 14 Am. Dec. 346.

440 LAW OP LANDLORD AND TENANT.

a damage to tlie inheritance by affecting its permanent value
then the landlord can sue.-° If the injury to the easement is
only temporary and is simply an inconvenience and annoyance
to the tenant and simply reduces the benefit which he derives
from the use of the premises during the term when the landlord
cannot sue but the tenant can sue.^^ A tenant at will may main-
tain an action for the interruption of a passageway to the use
of which he is entitled and which is indispensable to him for the
full enjoyment of his land.^^

§ 290. The protection of the tenant's easements by an in-
junction. The owner of property in whose favor an easement
has been created, whether by implication or by an express agree-
ment will be protected in equity against any infringement of his
beneficial use and enjoyment of the same. An anticipated en-
croachment upon his rights in the easement will be enjoined
whether the encroachment is by the creator of the easement or by
some other person. This is the general rule in equity and is
recognized because of the fact that in most cases the remedy at
law will be inadequate to protect the person whose rights are in-
fringed.-^ This rule by which equitable protection is given to
the enjoyment of easements has been applied by the courts to the
protection of rights of way both of a public or private character.
Thus, if there is an obstruction placed or erected in the way or
road which prevents its use the obstruction will be regarded as a
nuisance and its continuance will be enjoined on the application
of the person injured.-* In all such cases, however, the party

20 Hamilton v. Dennison, 56 Weber v. Gage, 39 N. H. 182; Shaf-
Conn. 359, 15 Atl. Rep. 748, 1 L. fer v. State Nat. Bank, 37 La. Ann.
R. A. 287; Gushing v. Adams, 18 242; Johnson v. Shelter Island
Pick. (Mass.) 110; Hasting v. Liv- Grove Camp Meeting Ass'n, 122 N.
ermore, 7 Gray (Mass.) 194. Y. 330, 25 N. E. Rep. 484, 26 N. E.

21 Foley v. Wyeth, 2 Allen Rep. 755, affirming 47 Hun (N. Y.)
(Mass.) 135; Avery v. New York 374; Haby v. Koenig (Tex.), 2
Central & H. R. R. Co., 7 N. Y. Posey, Unrep. Case, 439; Berkley
Supp. 341. V. Smith, 27 Grat. (Va.) 892; San-

22 Foley V. Wyeth, 2 Allen derlin v. Baxter, 76 Va. 299, 44
(Mass.) 135; Hamilton v. Denni- Am. Rep. 165.

son, 56 Conn. 359, 15 Atl. Rep. 748, 24 Stallard v. Cashing, 76 Cal.

1 L. R. A. 287. 472, 18 Pac. 427; Swift v. Coker,

23 Wheeler v. Bedford, 54 Conn. 83 Ga. 789, 10 S. E. Rep. 442. 20
244, 7 Atl. Rep. 22; Henry v. Koch, Am. St. Rep. 347; Shipley v. Cap-
80 Ky. 391, 44 Am. Rep. 484; les, 17 Md. 179; Schaidt v. Blaul,

PROPERTY WHICH IS INCLUDED IN THE LEASE.

441

whose use of the right of way is prevented must establish his
legal title to the easement in an action of law before he can ob-
tain equitable relief. So, also, equity will protect the easement
of light, air and view, in favor of the owner of the land to which
they are attached.^^ The protection which is thus given to the
owner of property in equity may be taken advantage of by a
tenant. Upon the making of a lease whether of the whole prem-
ises or of a part thereof, the right of the landlord to the enjoy-
ment of any easements which may belong to the building at the
date of the execution of the lease passes to his tenant so far as the
possession of such rights are necessary to the full and complete
enjoyment of the premises by the tenant. And if during the
the term the lessor attempts to deal with premises in such a way
as to deprive his tenants of the use of any easement to which he
is entitled he will be enjoined from further interference with
them and compelled to remove any obstruction already erected.^'

G6 Md. 141, 6 Atl. Rep. 639; Bean
V. Coleman, 44 N. H. 539; Bechtel
V. Carslake, 11 N. J. Eq. 500; Bai-
ley V. Schnitzlus, 23 N. J. Eq. 235,
22 Atl. Rep. 732, 32 Atl. Rep. 219;
Wheeler v. Gilsey, 35 How. Prac.
(N. Y.) 139; Herman v. Roberts,
119 N. Y. 37, 23 N. E. Rep. 442, 16
Am. St. Rep. 800; Deer v. Doherty,
26 Pittsb. Leg. J. (Pa. N. S.) 104.

25 Clawson v. Primrose, 4 Del.
Ch. 643; Gwin v. Melmoth, 1
Freem. Ch. 505; Robeson v. Pit-
tenger, 2 N. J. Eq. 57. 32 Am. Dec.
412; Dill V. School Board of City
of Camden, 47 N. J. Eq. 421, 20
Atl. Rep. 739, 10 L. R A. 276; Hag-
gerty v. Lee, 45 N. J. Eq. 1, 15 Atl.
Rep. 399; Lattimer V. Livermore,
72 N. Y. 174.

26 As illustrating the protection
which a tenant will receive in
equity, the following cases may
be cited, although in them the re-
lief was granted to the owner of
the fee of the property. The owner
of property was enjoined from en-
closing a portion of a public park

on which his land abutted where
his action destroyed the use of the
park by his neighbor. Wheeler v.
Bedford, 54 Conn. 244, 7 Atl. Rep.
22. The removal of a stairway
from a passageway was also
brought about by an injunction.
Stallard v. Gushing, 76 Gal. 472,
18 Pac. Rep. 427. So also where
the owner of premises had the
right to use certain land as an
alley, giving access to another
owner taking title from the same
source was enjoined from ob-
structing the alley by building a
wooden frame across it and put-
ting up hooks to hang meat on.
Swift v. Coker, S3 Ga. 789, 10 S.
E. Rep. 442, 20 Am. St. Rep. 347.
For another case in which an alley
was obstructed and the obstruc-
tion removed by equity, see
Schaidt v. Blaul, 66 Md. 141, 6
Atl. Rep. 669. The action of the
defendant in obstructing a water
course so that the water backed
up and rendered an alley impass-
able, was ground for the injunc-

442

LAW OP LANDLORD AND TENANT,

§ 291. Construction of the word appurtenances. The gen-
eral rule. The word "appurtenances" which in former times
at least was so geneally employed in deeds and leases is derived
from the word appaHe^iir which is Norman French and means
to belong to. Speaking broadly, the word means anything cor-
poreal or incorporeal which is an incident of, and belongs to
some other thing as prineipal.^'^ At a time when the construc-
tion of written conveyances was of a more technical character

tion. Bailey v. Schnitzius, 53 N.
J. Eq. 235, 22 Atl. Rep. 732. The
right to use a private carriageway
will be protected, by an injunc-
tion. Herman v. Roberts, 119 N.
Y. 37, 23 N. E. Rep. 442, 16 Am.
St. Rep. 800. Ordinarily, an in-
junction will not be granted to
tenants to prevent an adjoining
owner building his house so near
the dividing line as to obstruct
the passage of light and air. But
a grantor who has reserved the
right to light and air from prem-
ises sold by him may enjoin his
grantee from building thereon if
he can show that it would result
in a substantial loss to him. Hag-
erty v. Lee, 45 N. J. Eq. 1, 15 Atl.
Rep. 399.

*7 Bouvier, Law Dictionary;
Bloom V. West, 3 Colo. App. 212,
32 Pac. Rep. 846; Scheldt v. Belz,
4 111. App. 431; Badger Lumber
Co. V. Marion Water Sup. Co., 48
Kan. 182, 184, 29 Pac. Rep. 476,
30 Am. St. Rep. 301, 15 L. R A.
652; Riddle v. Littlefield, 53 N. H.
503, 508, 10 Am. Rep. 388; Doyle
v. Lord, 64 N. Y. 432, 437, 21 Am.
Dec. 629; Gullman v. Sharp, 81
Hun, 4C2, 465, 30 N. Y. Supp. 1036;
Meek v. Breckinridge, 29 Ohio St.
642, 648; Miller v. Fitzgerald Dry
Goods Co., 62 Neb. 270, 86 N. W.
Rep. 1078; Peters v. Grubb, 21 Pa.
St. 455; Stevens v. Taylor, 97 N.
Y. Supp. 925; Kooystra v. Luca.s,

1 D. & R. 506, 5 B. & Aid. 830, 24
R. R. 575; Harding v. Wilson, 3
D. & R. 287, 2 B. & C. 96, 1 L. J.
(O. S.) K. B. 238, 26 R. R. 287;
Morris v. Edington, 3 Taunt. 24,
12 R. R. 579; Crisp v. Price, 5
Taunt. 548; Jarvis v. Seele Mill-
ing Co., 173 111. 192; Parish v.
Vance, 110 111. App. 50, 57; Snook
& Austin Fur. Co. v. Steiner, 113
Ga. 363, 43 S. E. Rep. 775, 777;
Patterson v. Graham, 140 111. 531,
30 N. E. Rep. 460; The Ottumwa
AVoolen Mill Co. v. Hawley, 44
Iowa, 57, 60, 24 Am. Rep. 719;
Seidel v. Bloesser, 77 Mo. App.
172; Rutherford v. Wabash R. Co.,
147 Mo. 441, 48 S. W. Rep. 924;
Riddle v. Littlefield, 53 N. H. 503,
16 Am. Rep. 388; Ogden v. Jen-
nings, 66 Barb. (N. Y.) 301, 307;
City of Lincoln v. Lincoln St. R.
Co. (Neb.), 93 N. W. Rep. 766, 772;
Newport Illuminating Co. v. As-
sessors, etc., 19 R. I. 632, 638, 36
Atl. Rep. 426, 36 L. R. A. 266;
Johnson v. Nasworthy (Tex.), 16
S. W. Rep. 758, 759, 4 Willson, Civ.
Cases, § 107; Farmers' Loan &
Trust Co. V. Commercial Bank, 11
Wis. 207, 210; Investment Co. of
Philadelphia v. Ohio & N. W. Ry.
Co., 41 Fed. Rep. 3S7, 380; Scheel
V. Alhambra Mining Co., 79 Fed.
Rep. 821, 823; Harris v. Elliott,
10 Pet. (U. S.) 25, 54, 9 Law. ed.
333; Humphreys v. McKissock, 140
IT. S. 304, n Sup. Ct. 779, 781.

PROPERTY WHICH IS INCLUDED IN THE LEASE. 4-13

than it is at present the word was considered of much greater
importance than it is now and it was considered that in its ab-
sence from a lease or other conveyance a very restricted meaning
should attach to the words of description of the premises con-
vej'cd. But at the present time very little importance is attached
to its use in view of the fact that leases are so often drawn up or
prepared by persons who are not skilled in, or accustomed to
the use of technical language. Hence with a few exceptions those
things which are incident to the principal thing will pass
though the word appurtenances is not used. The word unques-
tionably has a technical meaning but this meaning is not inflex-
ible and the word will be construed in connection with the prin-
cipal thing conveyed.^^ and keeping in mind also the general in-
tent apparent in the instrument in Avhich it was emploj^ed as evi-
denced by the context and by all the circumstances.^^ The word
as it is used in a lease may have a very different meaning to
what it would have if employed in a will or in a deed conveying
a fee simple. For the use to which the principal thing conveyed
is to be put by the grantee, devisee or lessee usually is very ma-
terial in determining the meaning of the word. The presump-
tion that a lessor intended that something not enumerated should
pass as an appurtenant to the principal thing conveyed is -very
strong when the lessee will be deprived of the complete and full
enjoyment of the thing demised unless the thing which is incident
to it is regarded as an appurtenant and impliedly conveyed by
the same instrument. In short if the thing which is claimed to be
an appurtenant belongs to the principal thing and at the same
time is reasonably essential to the enjoyment of the principal
thing it will pass as appurtenant to it,^° even though the word
appurtenance be not used." The fact that a certain thing

28 Missouri Pac. Ry. Co. v. Mof- the accessary or adjunct, which is
fitt, 94 Mo. &6, 60 S. W. Rep. 600. to be ascertained by considering

29 The word has a technical sig- whether they so agree in nature
nification, and when strictly con- or quality as to be capable of
sidered, is employed in leases for union without incongruity." Rid-
the purpose of including any ease- die v. Littlefield, 53 N. H. 503, 50S,
ments or servitudes used or en- 10 Am. Rep. 388.

joyed with the demised premises. so Riddle v. Littlefield, 53 N. H.

"When thus used to constitute an 503, 508. 16 Am. Rep. 388.

appurtenance there must exist a 3i Jarvis v. Seele Milling Co.,

propriety of relation between the 173 111. 192, 195.
principal or dominant subject and

444 LAW OP LANDLORD AND TENANT.

which is claimed to be appurtenant to the principal thing is
used with it is in most cases veiy material ;nd may be con-
clusive upon the question whether the thing is appurtenant. But
the use in connection with the principal thing is not always con-
clusive for the thing to be an appurtenant must not only be used
with the principal thing but must also be a part and parcel of it.
Thus the mere fact that a stable has been used in connection with
the occupation of the demised premises does not make the stable
an appurtenant of the premises where the stable is not physically
connected with the premises and has no open communication wdth
it differing in character from other buildings.^- The necessity
that the tenant shall use the thing which is claimed to be an
appurtenance is a very strong circumstance. So, where certain
parts of a building were leased with the "appurtenances," a
furnace which constituted the only available means for heating
the premises was included in the word, though there were grates
on the floors and the grates were out of repair.''^ And as a gen-
eral rule it may safely be said that what in any case shall pass as
appurtenant to the leased premises, depends not upon the tech-
nical construction of the rule but upon the particular circum-
stances of each case, the most material and important of which
are the character and use of the premises which have been leased
and whether or not the thing or right which is claimed to be an
appurtenance to the premises is calculated to advance the use
of the premises in the hands of the tenant. In any case, the
safest rule is that everything will pass which is necessary for
the complete use of the premises, but things which render the
use of the premises more convenient or agreeable are not neces-
sarily appurtenances, for the premises can be used for the pur-
poses of the tenant without them. We must always bear in
mind that the w^ord "appurtenances" is not applied to the thing
which is the principal object of the lease but rather to those
things which are incidental and inferior to the principal thing.
So, where a railroad company leased a part of its right of way

32 Maitland v. McKinnon, 1 H. v/as immaterial as the tenant had

& C. 607. that right by implication. Having

"^ Stevens v. Taylor, 97 N. Y. this right by implication the ten-
Supp. 925. The court also hold ant has the right to use the heat-
that the fact that the lease was ing apparatus he finds in the
silent as to heating the premises house.

PROPERTY WHICH IS INCLUDED IN THE LEASE. 445

described by metes and bounds on whicli there were certain
structures connected with the tenant's coal mine and it was
provided that the lessor should be exempted from liability for
damages by fire to any structures that may be erected on the
land leased or their appurtenances or contents, the word "ap-
purtenances" did not include the, coal mine, pit heads or other
parts of the mining property outside of the land mentioned in
the lease but that the tenant's property inside the mining prop-
erty was appurtenant to his mine outside the limits.^* It is a
disputed question whether the conveyance of land "with the
appurtenances" will create an easement in the land where
none existed before. On the one hand, it has been said that
the conveyance of land specifically described "with all appur-
tenances thereof," will not create a right of way over the other
land of the grantor unless the creation of such a right of way
is absolutely necessary to give the grantee access to his land.*'
The mere fact that such a right of way makes access to the
land more convenient is not controlling. On the other hand
it has been expressly held that the word "appurtenance," par-
ticularly where it is used in connection with other words of
similar meaning may be sufficient not only to convey the existing
easement but also create one.^°

34 Rutherford v. Wabash R. R. pass by the use of the word "ap-
Co., 147 Mo. 441, 48 S. W. Rep. 924. purtenances" depends largely upon

35 Oliver v. Hook, 47 Md. 301, the construction of the leasa The
309; Gayetty v. Bethune, 14 Mass. following cases which are cited to
49, 7 Am. Dec. 188; Grant v. illustrate the use of the word in-
Chase, 17 Mass. 443, 9 Am. Dec. volved the construction of deeds,
161; Miller v. Bristol, 29 Mass. but it is believed that they are
550; Bonelli v. Blakemore. 66 valuable as showing the meaning
Miss. 136, 5 So. Rep. 228; Barker which the courts would place upon
V. Clarke, 4 N. H. 380. 17 Am. Dec. the word "appurtenances" in the
428; Stuyvesant V. Woodruff, 21 N. case of a lease. In these cases a
J. Law, 133, 47 Am. Dec. 146; Par- right of way was held to pass by
sons V. Johnson, 68 N. Y. 62, 23 the use of the words "with the
Am. Rep. 149; Kenyon v. Nichols, appurtenances." Peck v. Loyd, 38
1 R. I. 411. Conn. 566; Chicago, S. F. & C. R.

36 Knowles v. Nichols, 14 Fed. Co. v. Ward, 128 111. 349, 18 N. E.
Cas. No. 7,897; Molitor V. Sheldon, Rep. 828; Mendel v. Delano, 48
37 Kan. 246, 15 Pac. Rep. 231. Mass. 176; Foote v. Manhattan Ry.
Whether the easement, such as a Co., 58 Hun (N. Y.) 478, 12 N. Y.
right of way or a right of access Supp. 516; Kenyon v. Nichols. 1
or any other similar privilege, will R. I. 411. On the other hand, it

446

LAW OP LANDLORD AND TENANT.

§ 292. Things which have been held not to pass as a.ppnrte-
nances. The term "appurtenances" as it is used in conveyances
usually is intended to include nothing but the land and such
easements as belong thereto and which are a part of the land.^'^
The word as used in a deed or lease does not usually convey cor-
poreal things but only incorporeal things such as privileges
and easements.^^' For example, the word will not pass an arti-
cle of personal property which is in no wise connected with the
premises demised and which is not indispensable to its full use
and enjoyment by the lessee, though the thing may have been
used in connection with the premises.^^ And it is very well set-
tled that by the use of the word appurtenance, one piece of land
will not pass as an appurtenance to another piece of land.*"

has been held that a right of way
does not pass under the term of
"appurtenance" if it is not a parcel
of the premises and necessary for
their use and enjoyment May v.
Smith, 3 Mackey, 55; Grant v.
Chase, 17 Mass. 443, 9 Am. Dec.
161;*Lankin v. Terwillinger, 22
Oreg. 97, 29 Pac. Rep. 268. Gener-
ally an easement will not pass un-
der the use of this word unless it
was actually annexed to the princi-
pal thing. Spaulding v. Abbott, .55
N. H. 423; Parsons v. Johnson, 68
N. Y. 62, 63 Am. Rep. 149; Longen-
dyke v. Anderson, 101 N. Y. 625,
4 N. E. Rep. 629; Swansey v.
Brooks, 34 Vt. 451. In Oliver v.
Hook, 47 Md. 301, on page 309, the
court said: "If there was a way
belonging to the estate as a pre-
existing easement, such way
would pass by force of these
terms, or even without the use
of them; but such terms used in a
conveyance of part of a tract of
land, as in this case, will not cre-
ate a new easement, nor give a
right to use A way which had been
used with one part of the land
over another part while both parts
belonged to the same owner, and

constituted an entire estate. A
party cannot have an easement in
his own land as all the uses of an
easement are fully comprehended
and embraced in his general right
of ownership."

S7 Ottumwa Woolen Mill Co. v.
Hawley, 44 Iowa, 57; Meek v.
Breckinridge, 29 Ohio St. 642, 648.

38 Co. Litt. 121; Scheldt v. Belz,
4 111. A pp. 431; Buszard v. Capel,
6 Bing. 151, 161, 8 B. & C. 141-
150.

30 Scheldt V. Belz, 4 111. App.
431; Barrltt v. Bell, 82 Md. 110,
52 Am. Rep. 361.

40 The following cases sustain
the proposition that land will not
pass as an appurtenant. Ogden v.
Jennings, 62 N. Y. 526, 531;
Holmes v. Seeley, 19 Wend. (N.
Y.) 507; Oakley v. Stanley, 5
Wend. (N. Y.) 523; Voorhees v.
Burchard, 55 N. Y. 98; Wilson v.
Hunter, 14 Wis. 683. Some Eng-
lish cases are Nicholas v. Cham-
berlain, Cro. Jac. 131; Pierce v.
Sellick, 18 C. B. 321; Tyrring-
ham's Case, 4 Coke, 37a; Hill's
Case, Plowden, 168a; Smith v.
Martin, 3 Saund. 400. In Tyrring-
ham's Case, 4 Coke, 37a, it Avas

PROPERTY WHICH IS INCLUDED IN THE LEASE. 447

Hence, it follows that where there is a conveyance or a written
lease of land in which the premises are described by well defined
boundaries, so that it is clearly to be understood how much land
the grantor or lessor intended to convey, the addition of the
word appurtenances will not pass land not included in the
boundaries. Thus, the lease of a building described by a par-
ticular name does not pass as an appurtenance, any interest in
the land adjoining the land on which the building is located or
any interest in an outbuilding on such land, though the out-
building might have been used with the demised premises.*^
So, where in a lease, land is demised as the "Bell house with all
the appurtenances thereunto belonging," for the purpose of a
hotel, it was held that a kettle situated upon an adjoining lot
which was not indispensable to the enjoyment of the hotel prop-
erty, although it was very convenient for the use of the tenant,
did not pass as an appurtenant to the hotel, and the situation
was not altered by the fact that the lessor of the hotel had used
the kettle in connection with his hotel business.*^ And generally
the word "appurtenances" will not carry to the lessee the use
of any building or structure which is not on the premises de-
mised though this building belonged to the landlord and was
used by him in his business in connection with the premises.*''
The demise of a house with the appurtenances will pass the
house, with the orchards, yards and curtilage and garden but

said "prescription doth not make Doyle v. Lord, 64 N. Y. 432, 437,

a thing appendant unless the 21 Am. Rep. 629.
thing which shall be appendant *- Barrett v. Bell, 82 Mo. 110,

agrees in quality and nature to 114.

the thing to which it shall be ap- 43 Frey v. Drahos, 6 Neb. 1, 29
pendant as a thing corporate can- Am. Rep. 353; Grant v. Chase, 17
not be appendant to a thing cor- ]\Iass. 443; Spaulding v. Abbott, 55
porate." N. H. 423; Barber v. Clark, 4 N.
41 Oliver v. Dickinson, 100 Mass. H. 380; Coolidge v. Hagar, 43 Vt.
114, 117 (a lease). See, also, New 9; Swazey v. Brooks, 34 Vt. 451;
York Cen. R. R. Co. v. B., N. Y. Seavey t. Jones, 43 N. H. 441;
& E. R. R. Co., 49 Barb. (N. Y.) Jackson v. Strieker, 1 Johns. Cases
501, 505 (a lease of a railroad); (N. Y.) 284; Jackson v. Hatha-
Harris v. Elliott. 10 Pet. (U. S.) way, 15 Johns. (N. Y.) 447; Bet-
25, 55, 56; Leonard v. White, 7 tisworth's Case, 2 Coke. 516; Bus-
Mass. 6, 8, 9; Jackson v. Hatha- zard v. Capel, 8 B. & C. 141. G Blng.
v/ay, 15 John. (N. Y.) 447, 454; 150; Ogden v. Jennings, 62 N. Y.

52G.

448 LAW OF LANDLORD AND TENANT,

not the land especially if it be at a distance though occupied
with the house ; so, a demise of a house with appurtenances will
not pass an adjoining building which is not accounted parcel
of the house, although held with it for many years.** A lease of
a house with all the rooms and chambers, with all the appurte-
najices belonging, or in any way appertaining thereto does not
pass the use of a room formerly occupied with the rest of the
house with which the room had communicated by means of a
door which had, however, been closed by a wooden partition for
many years before the execution of the demise.*^ It should be
said, however, that the rule above stated to the effect that land
will not pass as an appurtenance of land, has some exceptions.
These exceptions occur principally in cases of the lease or convey-
ance of land fronting on streams or other bodies of water. Where
riparian land is conveyed or is demised without or with the use of
the word "appurtenances" in connection therewith, it is usually
considered that the land under water, adjoining the land de-
mised, passes with the demised land as being absolutely indis-
pensable to the full use and enjoyment of the land located on the
margin of the stream. Thus, flats necessary to the use of a
wharf will pass as appurtenances in a conveyance or lease of
a wharf.*® So, a.lso, under a lease of a wharf, the land upon
which the wharf is built, and the tide and shore land adjoining
to the wharf will pass as an appurtenance though not men-
tioned.*^ And an addition formed by the extension of a pier line
the result of an accretion by alluvion, will pass as an appurte-
nance to a pier.*^ And generally by a demise of a mill or mill
privilege, not only the mill itself, but also the land on which it
stands and all the land adjoining and surrounding it both above
and below water including a sufficient portion of the bed of the
stream to erect a dam upon will pass as an appurtenance.*^ An
exception to the rule occurs where the question arises as to the
right of the lessee to have the premises which he has leased sup-
ported by the land upon which it is built and by land which ad-

** Bryan v. Weatherhead, Cro. *^ Brown v. Carkeek, 14 Wash.

Jac. 17. 443, 44 Pac. Rep. 889.

45 Kerslake v. White, 2 Stark. *» Williams t. Baker, 41 Md.

508. 523, 528.

40 Doane v. The Broad Street <o Whitney v. Olney, 3 Mason

Ass'n, 6 Mass. 332. (U. S.) 280.

PEOPERTY WHICH IS INCLUDED LN THE LEASE.

449

joins it. "VVTiere the lease is of the buildings only and neither
land nor any interest in the land is mentioned^ no estate in the
land is created in the lessee. Still, though the tenant may have
no estate in the land, he has as an appurtenant and incident of
his possession of the buildings, such an interest in the land as
is necessary to support the premises. The lessee's right to the
support of the subjacent land exists only while it is necessary
to enable him to enjoy the full possession of the building upon
it and when the building is destroyed or removed, the right
passes to the lessor.^" The question whether a particular place
is a part of the demised premises does not depend solely and ex-
clusively upon how the premises are bounded in the lease, but also
upon the intention of the parties, which may be determined by
proving such extrinsic facts explanatory of the subject and of
the circumstances of the parties as will show the meaning of the
instrument and the real intention of the parties to it.^^ So, also,
it may be admitted that it is a well established principle that
any privilege or easement which is necessary to the enjoyment
of the demised premises will pass to the lessee as an appurte-
nance thereof, though it is not true that by the use of the word,

60 Snook V. Steiner, 117 Ga. 363,
43 S. E. Rep. 775, 777.

61 Trimble's Heirs t. "Ward, 14
B. Mon. (Ky.) 8. The privilege
of using a well in an adjacent lot
so long as it shall remain does not
raise an implied covenant that it
shall remain. The use of the well
is not an appurtenant as it is not
absolutely essential to the full en-
joyment of the demised premises
and the lessor may therefor deter-
mine how long the well shall re-
main. Basserman v. Society of
Trinity Church, 39 Conn. 137.
"Appurtenances" in a lease of a
hotel does not include a kettle for
heating water located in an adja-
cent lot, though it has been used
by the lessor in connection with
the hotel. Barrett v. Bell, 82 Mo.
no, 52 Am. Rep. 361. A restau-
rant conducted by a lessor in an-

29

other part of the demised prem-
ises is not an appurtenance, not
being indispensable to the full en-
joyment of the demised premises,
and consequently may be discon-
tinued or removed at any time
during the term by the lessor.
Gale V. Heckman, 16 Misc. Rep.
370, 38 N. Y. Supp. 85. The rights
of the lessor which arise out of
his merely personal agreement
with a third party do not pass as
appurtenant. So the lessor's right
to lay a railroad track on a public
highway under a municipal ordi-
nance to connect his premises with
a railroad, and his contract with
such railroad not being attached
in any way to the land demised,
do not pass to the lessee in the
absence of express agreement.
People, etc. V. C. & N. W. R. W.
Co., 57 III. 43G, 410.

450 r,AW OP LANDLORD AND TENANT.

whatever is convenient for the use of the premises passes. There
is a great difference in meanings between convenience and neces-
sity and no privilege will pass to the lessee unless it is expressly
granted merely because it is convenient for him to enjoy it.
Thus, though the right to use a stream will pass to the lessee of
a mill privilege as a necessary appurtenance thereto, he will
only have the right to use it in a necessary and proper manner.
And he will not be penuitted to defile the stream by casting
waste or rubbish into it merely because this use of the stream will
promote his convenience.^- Wliere a lease is renewed with the
intention on the part of the tenant to continue the use of the
building for the same purpose as he had heretofore used it, the
character of his tenancy under the old lease may be proved for
the purpose of determining whether a certain privilege passed
to him under the new lease as an incident to it. Thus, where
a landlord had leased a portion of his building a part of which
was occupied by him, and had agreed to permit the tenant to
have a half of the steam power which was generated by the en-
gine owned by the landlord ; and it appears in the evidence that
the tenant had occupied the same premises and had the use of
the same engine, that the use of steam was necessary to the ten-
ant, and that he had been using it right along, it was held that
the use of the steam passed as an incident of the new lease. Un-
der such circumstances, the tenant may enjoin the landlord from
depriving him of the use of the steam.^^

62 Howell V. McCoy, 3 Rawle ha-s a technical signification, and

(Pa.) 256, 271. when strictly considered, is em-

53 Thomas v. Wiggins, 41 111. ployed in leases for the purpose

471. "Appurtenances are defined: of including any easements or

'Things belonging to another servitudes used or enjoyed with

thing, as principal, and which pass the demised premises. Where the

as incident to the principal thing.' term is thus used, in order to con-

Bouv. Law Die. Another defini- stitute an appurtenance there

tion is: 'A thing used with and must exist a proi)riety of relation

related to or dependent upon an- between the principal and domi-

other thing more worthy, and nant thing or subject, the acces-

agreeing in its nature and quality sary or adjunct, which is to be as-

with the thing whereunto it is certained by considering whether

appendant or appurtenant.' 3 they so agree in nature and qual-

Washb. Real Prop. 620, 627; Com. ity as to be capable of union with-

Dig. Appendant and Appurtenant out incongruity. These distinc-

(A). The word, 'appurtenances,' tions are refined, and in the com-

PROPERTY WHICH IS INCLUDED IN THE LEASE.

451

§ 293. Meaning of the word half. The word ''half" in a
lease of laud as in a deed as used in the expression "half of a lot,"
means half in quantity in the absence of a coatext or of facts
from which a different meaning may be inferred.^^ Thus, two
parts of a farm or other piece of land separated by a road or
stream may be called halves without regard to their quantity
and in such cases the word half will not have its primary mean-
ing but the circumstances and the customs of the parties in using
the word will be taken into account to ascertain what meaning
the parties attached to it.^^ But the mere fact that a land front-
ing on a meander lake is to be used for mining purposes by the
lessees of separate halves and that either may desire to mine
under the lake does not vary the primary meaning of the word
half.^^ The terms section, half section or quarter section prop-
erly mean, and are so construed by the general land department,
the land in the sectional and subdivision lines and not the exact
quantity which a perfect measurement of an unobstructed sur-
face would show.^"

mon practice of modern convey-
ancing are not much regarded —
the term, 'appurtenances,' in a
Tast majority of cases in deeds
and leases, having in fact, I pre-
sume, no meaning whatever in the
minds of the contracting parties,
who append the necessary formula
by force of custom and example
which has for so long a time ap-
plied it to grants and leases of a
principal thing, to which no in-
ferior easement or servitude what-
ever, in fact, belongs. If employed
in its true and technical sense, it
may sometimes have such mean-
ing and importance that, if omit-
ted, an appurtenance will not
pass. And the use of such super-
fluous formula is ordinarily harm-
less and will seldom lead to con-
fusion or misunderstanding. But,
ordinarily, whatever easements
and privileges legally appertain to
property pass by a conveyance of
the property itself without addi-
tional words. The grant of a

thing passes the incident as well
as the principal, though the lat-
ter only is mentioned, and the
effect cannot be avoided without
an express reservation. Thus, a
garden is parcel of a house and
passes without the addition of the
word "appurtenance." Taylor's
Landlord & Tenant, sec. 161. A
grant of a thing will include what-
ever the grantor had power to
convey which is reasonably neces-
sary to the enjoyment of thing
granted." By the court in Riddle
V. Littleton, 53 N. H. 503, 508, 509.

^•tAngres Boom Co. v. Whitney,
26 Mich. 52; Dart v. Barbour, 32
Mich. 271; Heyer v. Lee, 40 Mich.
353; Jones v. Pashby, 62 Mich.
614.

■■•'• .Jones V. Pashby, 48 Mich. 614,
634.

r<3 Hartford I. M. Co. v. Cam-
bria Mining Co.. 80 Mich. 491, 499,
45 N. W. Rep. 851.

57 Brown v. Hardin, 21 Ark. 325.

CHAPTER Xn.

THE CONSTRUCTION OF LEASES.

§ 294. T^Tiat law governs.

295. The construction of the language of written leasee*

296. The lease construed by the conduct of the parties.

297. Writings will be construed together.

298. Merger in lease of all preliminary conversations.

299. The meaning of technical terms in a lease.

300. When parol evidence is received in the case of leases.

301. When parol evidence is not received in the case of leases.

302. Parol evidence of custom to aid in the construction of a lease,

303. The modification of the lease by the parties.

§ 294. What law governs. The general rule that the law of
the place where land is situated determines all questions as to
the mode or legality of its transfer is applicable to leases.^ This
rule is not confined to the formal execution of the lease but ex-
tends to all questions as to its construction and interpretation.
And not only must the court invoke the law of the place where
the land is to determine the validity and construction of the
contract but also to determine whether the subject matter is
real or personal property.^ Thus, for example, a court in the
state of New York construing a so-called lease of coal in Penn-
sylvania buried beneath the surface of the earth and forming a
part of it, held that the coal was land and followed the law of
Pennsylvania which regards a lease of all coal on premises therein
described with the right to take it exclusive of the grantor as
in legal effect a grant in fee of the coal as land and vests the
fee thereof in the so-called lessee.' The rights of the parties to
a lease will be construed and regulated by the law, either com-
mon or statute, which existed at the date of its execution and the

1 Genet v. Del. & Hudson Canal 2 Chapman v. Robertson, 6

Co., 13 Misc. 409, 421. 25 N. Y. Paige (N. Y.) 627, 620.
Supp. 147. 3 Genet v. Delaware & Hudson

Canal Co., 13 Misc. 409, 424, 425.

. CONSTRUCTION OF LEASES. 453

rights whicli have thus vested will not be in any way divested
or affected by the repeal or modification of such law.*

§ 295. The constniction of the language of written leases.
The general rules governing and regulating the construction of
written contracts when involved in litigation are usually appli-
cable to the construction of leases in writing. Inasmuch as a
detailed discussion of these rules, however appropriate it may
be in a work treating of the law of contracts, would be mani-
festly out of place in these volumes, where only a very minute
portion of the general law of contracts is under consideration,
no lengthy discussion of such general principles may be ex-
pected in this treatise. In the first place, it is a general rule
that in the construction of a lease, the intent of the parties must
be reached by an examination of the whole instrument, and such
construction adopted as will earr\' out the intent, though a single
clause would lead to a different construction.^ In construing
a lease where the language is ambiguous, the courts will en-
deavor to ascertain the intention of the parties and when as-
certained, to give effect to it, but where the language is unam-
biguous, though the parties may have failed to express their real
intention in the lease, there is no room for constniction, and
the legal effect of the lease must be enforced.® The provisions
of a lease will not be extended by construction."^ As a rule the
construction of the language of a written lease is a matter of law

4 Swan v. Kemp, 97 Md. 686, 55 s Harlow v. Lake Superior Iron

Atl. Rep. 441, 443; Appeal Tax Co., 36 Mich. 105; Union Water

Court of Baltimore City v. West Power Co. v. Lewiston, 95 Me. 471,

Md. R. R. Co., 50 Md. 274, 295. 49 Atl. Rep. 878; City of New

Thus in a case where a statute York v. United States Trust Co.,

providing that leases of land for 101 N. Y. Supp. 574; Johnson v.

more than 15 years might be re- Kindred State Bank, 96 N. W. Rep.

deemable after the term of 15 years 588, 589; Seaman v. Civill, 45

had expired at the option of the Barb. (N. Y.) 267, s. c. 31 How.

tenant was modified and affirmed Pr. (N. Y.) 52; Orphan Asj^lum

by a subsequent statute which Society v. Waterbury, 8 Daly (N.

merely altered it in some imma- Y.) 35.

terial particulars, leases executed s Walker v. Tucker, 70 111. 527,

between the passage of the origi- 532; Thompson, v. Stewart, 60

nal act and the ameniiatory act Iowa, 223, 225, 14 N. W. Rep. 247.

are within the operation of the 7 Windsor Hotel Co. v. Hawk,

first act. Swan v. Kemp, 97 Md. 49 How. Pr. (N. Y.) 257.
686, 55 Atl. Rep. 441.

454 LAW OF LANDLORD AND TENANT.

for the court and not for the jury.^ Ajad if the terms of an oral
lease are doubtful, it is for the jury to determine what they are
upon all the evidence.^ As a general rule, where a lease is
susceptible of two constructions, the one most favorable to
the lessee must prevail.^" This rule does not apply to the
construction of the lease where the intention of the parties
is clearly apparent from the lease, when it is examined in
the light of surrounding circumstances.^^ "Where a provision
of a lease stipulating damages for holding over is highly penal
and almost unconscionable and the lease admits of two construc-
tions as to the time such damages would accrue, the construction
which is most favorable to the lessee ought to be had. The court
must, if possible, avoid a harsh and oppressive construction of
the lease.^^ It is contrary to the well-settled rules of construc-
tion to give the language of a lease a narrow and technical in-
terpretation which is based upon some particular word or clause
contained in it. The intention of the parties must be taken
from the lease as a whole and such a construction must be had
as will, if possible, render all its clauses consistent and har-
monious." Where a lease contains both written and printed
provisions, etfect is to be given to both if they are not incon-

8 Needy v. Middlekauff, 102 Md. to the tenant. If the duration ap-

181, 62 Atl. Rep. 159; Brown v. pears to be optional with some

Schiappacassee, 115 Mich. 47, 72 N. one, it will be presumed that the

W. Rep. 1096; Newman v. Tolmie, tenant is to have the option.

80 N. Y. Supp. 990, 81 App. Div. Comm. v. M'Neile, 8 Phila. 438,

111; Dumn v. Rothermel, 112 Pa. 26 L. I. 205, 3 Brewst. (Pa.) 537.

St. 212, 17 W. N. C. 292, 43 L. I. Gas and oil leases are construed

376, 3 Atl. Rep. 800. and regulated generally by the

» State V. Forsythe, 89 Mo. 667, same rules of law as are applicable

1 S. E. Rep. 834. to leases of farm lands. Kelley v.

10 Doe V. Dixon, 9 East, 15; Oil Co., 57 Ohio St. 317, 49 N. E.
Cook V. Bisbee, 18 Pick. (Mass.) Rep. 399, affirming Ohio Oil Co.
.^)27, 529; Commonwealth v. Sher- v. Kelley, 6 Ohio Ct. Dec. 470, 9
iff, 3 Brewst. (Pa.) 537; Presby- R. 511.

terian Church v. Pichet, Wright 12 Klingle v. Ritter, 58 111. 140,

(Ohio) 57; Windsor Hotel Co. v. 141.

Hawk, 49 How. Pr. (N. Y.) 257, i-i Harlow v. Iron Co., 36 Mich.

262. 105, 117; Pendill v. Maas, 97 Mich.

11 Pere Marquette R. Co. v. Wa- 215, 220; Berridge v. Glassey, 112
bash R. Co. (Mich. 1906) 104 N. Pa. St. 442, 455, 3 Atl. Rep. 583,
W. Rep. 650. Leases of doubtful 56 Am. Rep. 322.

duration are construed favorably

CONSTRUCTION OF LEASES. 455

sistent. A printed clause providing that if default shall be
made in performing any of the covenants, then it shall be law-
ful for the landlord to re-enter, applies to a written provision
that the lessee shall pay all taxes and assessments assessed dur-
ing the term before they become delinquent.^* If the printed
and the written provisions of a lease cannot be reconciled, the
written provisions should prevail as being presumptively ex-
pressive of more deliberate intention of the parties.^^ "Where
the language of the operative part of a lease is of doubtful
meaning, the recitals preceding the operative part may be used
as a test to discover the intention of the parties and fix the true
meaning of the words. When the words in the operative part
of the lease are clear and unambiguous, they cannot be con-
trolled by the recitals in the lease. Where the recitals do not
express all that is included in the operation of the lease, they
cannot be regarded as a full and clear expression of the inten-
tion of the parties.^^ A material word which has been appar-
ently omitted from the lease by mutual mistake will be inserted
in construing a lease where the lease contains other words which
cannot have their proper effect unless that word is introduced,
though the particular clause in the lease where the word ought
to be conveys a sufficiently definite meaning without it.^" Gen-
erally the construction of the covenants of a lease must be the
same in equity as they are in law. In spite of this fact there are
circumstances where in equity a covenant will be reformed either
because of accident or mistake, and by this process practically
a new covenant will be made. But this new covenant, after it
has been made, will be construed in equity by the same rules
as it would be construed in a court of law.^'

§ 296. The lease construed by the conduct of the parties.
"Where the language of the lease is ambiguous so as to leave the
intention of the parties to the lease in doubt and different inter-
pretations are permissible, recourse may be had to the conduct
of the parties and to the circumstances surrounding them when

1* Heiple v. Reinhart, 100 Iowa, ic Walker v. Tucker, 70 111. 525,

525, 69 N. W. Rep. 871. 527.

15 Seaver v. Thompson, 189 III. it Dodd v. Mitchell, 77 Ind. 388,

158, 59 N. E. Rep. 553, affirming 392.

91 111. App. 500. IS Eaton v. Lyon, 3 Ves. 692; Ig-

gulden V. May, 9 Ves. 329, 334.

456

LAW OP LANDLORD AND TENANT.

tile lease was signed and to the construction which they have
placed upon the lease in order to ascertain their intention.^^
The conduct of the parties from which an intent may be implied
must be wholly free from mutual mistake or the influence of
fraud for the conduct of one who is acting under a mistake of
law or of fact furnishes no proper basis for an implication that
he understands the writing and acts as he does with an intent
to perform it. Thus, there is not such a construction of the lease
by the parties as will bind the court, where under a mistake of
law, the lessee of a gas lease paid an annual rental higher than
that provided by the plain terms of the lease. -° In other words,
no intent will be inferred from the conduct of the parties which
is contradictory to the plain language of the lease. So, though
a lease made on Simday is void under the statute and confers
no contractual rights on either party to it, it may be read by
the court in connection with other circumstances to explain the
character of a lessee's possession and to account for the con-
duct of both parties in relation to the land. It may be regarded
as a declaration or admission constituting a part of the res ges-

19 Hall V. Harton, 79 Iowa, 352,
357, 44 N. W. Rep. 569; Sargent
V. Adams, 3 Gray (Mass.) 72, 79;
Doe V. Burt, 1 T. R. 701; Siegel v.
Colby, 61 111. App. 315; Frigeris
V. Stillman, 17 La. Ann. 23; Ru-
bens V. Hill, 213 111. 523, 72 N. E.
Rep. 1127, affirming 115 111. App.
565; Hasbrouck v. Paddock, 1
Barb. (N. Y.) 615, 638; Wood v.
Sharpless, 174 Pa. St. 588, 595, 34
Atl. Rep. 319, 38 W. N. C. 153;
Anzolone v. Paskusz, 96 App. Div.
188, 89 N. Y. Supp. 203; Woods v.
Edison Electric 111. Co., 184 Mass.
523, 69. N. E. Rep. 364. In deter-
mining what the 1-ights of the suc-
cessors of a lessee are, the court
will take into consideration the
construction placed on the provi-
sions of the lease by the parties
themselves. Coatsworth v. Schoell-
kopf, 55 N. Y. Supp. 753, 37 App.
Div. 295. For the construction
by the parties as to the length of
the term see Siegel v. Colby, 61

111. App. 315. In Coatsworth v.
Schoellkopf, 55 N. Y. Supp. 753, it
is said: "The original parties to
this lease have long since de-
parted this life, and their heirs,
assigns and successors in interest
have continued peaceably to carry
out the provisions of the lease
until the service of the defective
notice to which we have referred.
These successors in interest have
thus admitted that the liabilities
and rights under the lease of the
original parties devolved upon
them and this is a practical con-
struction on their part in favor of
the position here taken that the
covenant as to the buildings runs
with the land; and, when the
words of a grant are ambiguous
the courts will call in aid the acts
done under it as a clue to the in-
tentiorf of the parties."

20 Diamond Plate-Glass Co. v.
Terrell, 22 Ind. App. 346. 52 N.
B. Rep. 168.

CONSTRUCTION OF LEASES. 457

ta-e.^'^ Thus, where injuries by "reasonable use" were excepted,
it is proper in determining the meaning of the word "reason-
able," which is, under the circumstances ambiguous, to consider
the condition, situation and adaptation of the land for any par-
ticular use, the statements of the parties as to the use to which
it had been put, and was to be put by the lessee, and that it had
no rental value for any other purpose, all of which may be
proved by parol.-'

§ 297. Writings will be constmed tog-ether. Where the
terms of an agreement between the lessor and the lessee are con-
tained in two or more writings each of which is incomplete in
itself, though all taken together constitute a lease, all the writ-
ings will be construed together in order to ascertain the real
intention of the parties to the lease.^ A prior or contempo-
raneous writing may be incorporated into a written lease by a
reference to it in the lease if referring to the same property and
if it recites it as in existence when the lease is executed. But
two leases of different dates of distinct pieces of property,
though between the same parties, neither of which refers to the
other, cannot be construed together but must be treated as sep-
arate instruments.^* But two or more leases are not necessarily
construed together merely because they relate to the same prem-
ises. It must appear that the parties considered and treated
them as one instrument, the best evidence of which intention is
that one of them refers to the other.^^

§ 298. Merger in lease of all preliminary conversations. The
general rule is firmly settled that where parties have entered
into a written contract, all previous conversations, negotiations
and propositions, whether oral or written, are to be regarded as
merged in the final and definite agreement in writing.-® In

21 Rainey v. Caps, 22 Ala. 288. them and a third person. Eubank

22 Bartel v. Brain, 13 Utah, 162, v. May, etc.. Hardware Co., 105
44 Pac. Rep. 715. Ala. 629, 17 So. Rep. 109. See,

23 Cadwallader v. United States also, Putnam v. Stewart, 97 N. Y.
Exp. Co., 147 Pa. St. 455, 23 Atl. 411, 414.

Rep. T75, 29 W. N. C. 504; Con- 2& Anderson v. Winton„ 136 Ala.

solidated Coal Co. v. Peers, 150 422, 34 So. Rep. 962, 965.

111. 344, 37 N. E. Rep. 537. ze Ruse v. Mutual Benefit L. Ins.

24 Anderson v. Winton, 136 Ala. Co., 23 N. Y. 516; Bailey v. Sny-
422, 34 So. Rep. 962. If its terms der, 13 S. & R. (Pa.) 160; Hay-
are known to all, the parties to a cock v. Johnston (Minn.) 83 N. W.
lease may adopt by reference the Rep. 494; King t. Enterprize Ins.
terms of a prior lease between Co., 45 Ind. 43; Grand Trunk W.

458 LAW OF LANDLORD AND TENANT.

theory and logically it must be assumed that the writing when
executed constitutes the consummated intention of the parties
and that by signing it they have at least tacitly agreed to dis-
card and forget everything which preceded it and w^hich has
not by them been embodied in the instrument they have signed.
The intention of the instrument was to avoid future controversy
as to the things agreed to in it and to hold that prior conversa-
tions can be proved to enlarge or contradict is to open wide the
door for future litigation. These considerations are applicable
to the lease and to the preliminary negotiations which lead up
to its execution. For a lease, it is clear, is a contract prescribing
the rights, duties and liabilities of lessor and lessee and if full
and apparently complete in itself, may with reason be assumed
to contain the full expression of the intention of the parties as
to the extent and character of such rights, duties and liabilities.
In other words, a lease as executed absorbs and incorporates all
that has preceded it between the parties and in the absence of
fraud, accident or mistake may be conclusively presumed to
represent the ultimate and final deliberation of landlord and ten-
ant.*' Hence, it cannot be shown by parol that the landlord
agreed not to erect a new building adjacent to that leased and
which would, to a certain extent, interfere with the tenant's en-
joyment of the leased premises unless such an agreement has
been inserted in the lease.^*

Ry. Co. V. Chicago & E. I. R. R. whole engagement of the parties

Co., 141 Fed. Rep. 78.5. and the extent and manner of

27 Phillbrook v. Emswiler, 92 their undertaking are embraced
Ind. 590, 591; Ranalli v. Zeppetelli, in the writing. This rule has
94 N. Y. Supp. 561; New York v. been repeatedly applied to cases
Mason, 9 N. Y. St. Rep. 282; Gerry like the present, where tenants
V. Siebrecht, 88 N. Y. 1034, 1037. have set up oral agreements or
(Construing words "ready for oc- promises alleged to have been
oupancy.") made by the landlord, at the

28 Haycock v. Johnston, 81 Minn. time of, or before, the execution
49, 83 N. W. Rep. 494. of the lease, and as an inducement

Merger. Where the terms of a thereto. The alleged promises

lease are in writing, the rights have in most cases been to put

and duties of the parties depend the premises in repair but they

upon the terms or legal intend- have uniformly been held to have

ment of the lease itself, or as been merged in the lease. By

otherwise expressed, that it is Rapallo, J., in Wilson v. Deen, 74

conclusively presumed that the N. Y. 531, on p. 534, citing

CONSTRUCTION OF LEASES. 459

§ 299. The meaning of technical terms in a lease. Tech-
nical terms of law or of commerce used by the parties in tlie
lease will ordinarily be presumed to have been employed in their
primary sense. Thus, where a purely technical term is found in
the quaint language of ancient leases, it will be presumed that
the parties to the lease used it in its strict common law meaning
in the absence of evidence to the contrary'. This is especially
true where the lease was prepared by a person learned in the
law.-" There is no ]iresumption of law, where the parties to the
lease use a technical word, that they use it in any restricted or
secondary sense: or that they use it according to the peculiar
sense in wliich it is understood in the neighborhood where the
premises are located. If there is disputed evidence of the
meaning of a technical word, its sense is for the jury.^° Parol
evidence Avill be received to explain the meaning of a technical
word used in a lease where the word has two or more meanings
for the purpose of showing what rights passed by the use of
such word.^^

§ 300. When parol evidence is received in the case of leases.
There are some exceptions to the rule by Avhich parol evidence
is excluded in case of a written lease, "^'hile the lease cannot
be varied or contradicted, parol evidence may be received in
connection with it for certain purposes. Thus, parol evidence
is receivable to show that the execution of a written lease was
procured by false and fraudulent representations.^^ The repre-
sentations, though by word of mouth, may be proved, and, if
they are sufficient and material, the lease will be set aside. Parol
evidence is also received to prove an oral contract which was

Cleves V. Willoughby, 7 Hill (N. 29 Michaels v. Fishel, 169 N. Y.

Y.) 83; Speclvels v. Sax, 1 E. D. 381, 62 N. E. Rep. 425.

Smith (N. Y.) 253; Howard v. 30 Clayton v. Greyson, 6 N. &

Thomas, 12 Ohio St. 201; Brig- M. 694, 5 A. & E. 302.

ham V. Rogers, 17 Mass. 571; Re- 3i Tudgay v. Sampson, 30 L. T.

nard v. Sampson, 12 N. Y. 561; 262; Clayton v. Greyson, 6 H. &

Ruse V. Mutual B. Life Ins. Co., N. 694, 5 A. & E. 302.

23 N. Y. 516; Johnson v. Oppen- 32 Hultz v. Wright, 16 S. & R.

heim, 55 id. 293. See, also, Carey (Pa.) 345; Lansdale v. Richard-

V. Kreiger, 57 N. Y. Supp. 79; Mc- son, 1 W. N. C. (Pa.) 413; Wolfe

Lean v. Nicol, 43 Minn. 169, 45 N. v. Arrott, 109 Pa. St. 473, 16 W. N.

W. Rep. 15. C. 565, 33 Pitts. L. J. 427, 1 Atl.

Rep. 333.

460 LAW OF LxVNDLORD AND TENANT.

the consideration for the written lease.^^ Tlius, where the lessee
accepts a lease of a farm upon the landlord's oral promise that
he would build a bam on it by a certain date, the tenant has the
right to prove the oral promise to show why he executed the
written lease. He may also sue on the oral agreement for dam-
ages, though the lease as written contained no provisions respect-
ing the bam.** But parol evidence is not admissible to show that
before the execution of a lease in writing, the landlord promised
the tenant that he would put water and gas in the premises dur-
ing the term. Such an agreement is not a collateral agreement,
but is an agreement between the parties to do something directly
concerning the premises; it is on the same basis as would be a
covenant by the landlord to make repairs.^^ On the other hand,
a collateral agreement may be shown. Thus, for example, an
oral agreement by the landlord t-o destroy all game on the de-
mised premises, which is collateral to a written lease in which
the tenant promises not to kill or destroy game, and in which
the right to hunt game on the premises was reserved to the
landlord may be proved.^® Under the general rule, parol evi-
dence is always admissible to explain the lease or to correct an
error in it, to describe the subject matter and to show facts and
circumstances surrounding its execution. Thus, an error in the
statement of the rent may be corrected by parol.^^ The time
when the rent is payable by a written lease may be shown by
parol where the lease itself is silent.^^ And where there is any
indcfiniteness as to the premises which are leased, parol evidence
may be received to make their description more definite and more
certain.*^ The character in which the lessee or the lessor signed

83 As an oral agreement by the Ch. 849, L. R. 8 Ch. 756, 29 L. T.

leBPor to repair. Clenighan t. 234, 21 W. R. 802.

McFarland, 11 N. Y. Supp. 719. S7 Snyder v. May, 19 Pa. St. 235.

8* Shughart v. Moore, 78 Pa. St. But if the rent is falsely stated in

469, 1 W. N. C. 598, 23 Pitts. L. J. the lease for the purpose of de-

15, 32 L. J. 336. frauding a stranger to it the real

so McLean v. Nicol, 43 Minn. amount cannot be shown by parol

169, 45 N. W. Rep. 15. as between the parties. Delama-

86 Morgan v. Griffith, 40 L. J. ter v. Bush, 63 Barb. 168.

Ex. 46, L. R. 6 Ex. 70, 23 L. T. as Hartsell v. Myers, 57 Misc.

783, 19 W. R. 957; Erskine t. 135.

Adeane, Bennett's Claim, 42 L. J. so Heyward v. Wilmarth, 84 N.

Y. S. 75, 87 App. Div. 125.

CONSTRUCTION OF LEASES. 461

the lease may be explained by parol evidence. Thus, it may be
shown that although the lease was signed by an individual, yet
it was in fact signed by him on behalf of a partnership of which
he was a member.*" And where the question is whether a land-
lord after the expiration of the written lease recognized his ten-
ant as such, parol evidence may be received to show the rela-
tions of the parties continued to be the same after the lease as
they were before its expiration.*^ It is also competent to prove
an oral agreement modifying the lease under seal if the agree-
ment is based on a good consideration, and is not required to be
in writing under the statute of frauds.*^ Thus, it may be proved
by parol evidence that the parties to a written lease orally agreed
to reduce the rent when the rent as reduced was paid by the
tenant and receipted for in full by the landlord.*-* Such an agree-
ment is a good defense in a subsequent action by the landlord
to recover the amount of rent agreed to be paid by the lease. ^^
Parol evidence is always admissible to show that a mistake was
made in the rent as stated in the lease.** Where the lease pro-
vides for a consent by the landlord to some action on the part
of the tenant, it is always admissible to prove by parol that the
consent was given unless the lease expressly required consent to
be in writing.*^ So, parol evidence may be received to show
that the lease was made for illegal purposes,*^ or to show that
the element of fraud entered into its execution, and generally to
show that the lease is void and of no effect. Under the rule that
parol evidence is receivable to show what property was intended
to be included in the lease but not to extend the description
it has been held that where the lease was for the "Adam's house,
situated on Washington street, Boston, ' ' it might be proved what

*o Woolsey v. Henke, 125 Wis. 42a "Wilson Gas Company, 89

134, 103 N. W. Rep. 207. Pac. Rep. 897.

■41 Amaden v. Atwood, 38 Atl. <3 McKenzie v. Harrison, 24 N.

Rep. 263, 69 Vt. 527. E. Rep. 458, 120 N. Y. 260.

42 Wilgus V. Whitehead, 8 Pa. •** sire v. Rumbold, 39 N. Y. St.

St. 131, 6 W. N. C. 537, 26 Pitts. Rep. 85, 14 N. Y. Supp. 925.

L. J. 202. The question whether o Palmer v. Sanders, 49 Fed.

there was a parol modification of Rep. 144.

the lease constituting a new con- *q Doe v. Allen, 8 T. R. 148; Rex

tract is for the jury. Evers v. v. Northwingfleld, 1 B. & Ad. 912;

Shumaker, 57 Mo. Ap. 454. Lightfoot v. Tenant, 1 Bos. & Pul.

555.

462 LAW OF LANDLORD AND TENANT,

the parties intended by these words.*^ So, where the lease de-
mised "a house and lot containing three acres more or less,"
and the lessee claiming seven acres, all of which was in one lot
not divided by any fences, it was permissible to prove by parol
that the original lot connected with the house contained only
three acres, and that the lessor had subsequently purchased four
acres and occupied the whole tract at the time of the lease and
that the lease was intended by the parties to cover only the orig-
inal three acre lot.*^ If, however, the description of the lease
is intelligible and offers sufficient means of ascertaining exactly
what the parties intended to lease, it cannot be extended by
parol evidence to include other premises.*® On the other hand,
parol evidence has been received to show that the cellar of an
adjoining house had been occupied by the lessee with the prem-
ises to which the lease applied and was necessary for the carry-
ing on of the lessee's business in a case where the question was
as to the renewal of the lease.^" So, also, where a lessor after the
execution of the lease gave a new lease of adjoining lands and
agreed to renew this lease, parol evidence was received to show
the intention of the parties as to the inclusion of the adjoining
land in the renewal lease.^^ So, when there was a clause in a
lease "that the lessee is to have all the personal property on the
farm," parol evidence was received on the question whether this
clause meant that he should have merely the use of such prop-
erty or that it should be his absolutely.^- So, in England, if a
party grant a manor by particular name and he has two man-
ors of that name, parol evidence is received to show which of
them was meant. So. parol evidence of usage has been received
to show that a room which had not been occupied in certain
premises did not in fact pass under a demise of these premises

47 Sargent v. Adams, 3 Gray gleston v. Bradford, 10 Ohio, 312;

(Mass.) 72. Campbell v. Johnson, 44 Mo. 247;

48 Chamberlain v. Letson, 5 N. Bratton v. Clamson, 3 Strobh. (S.

J. Law, 152. Car.) 135.

49 Vose V. Bradstreet, 27 Me. co Crawford v. Morris, 5 Gratt.

1.56; Norwood V. Byrd, 1 Rich. (S. (Va.) 90.

Car.) 13.5; Phillips v. Castley, 40 oi Midlothian & Co. v. Finney,

Ala. 486; Todd v. Phllhower, 24 19 Gratt. (Va.) 304.

N. J. Law, 796; McLaughlin v. g2 Wing v. Gray, 36 Vt. 261.
Bishop, nr, N. J. Law, 512; Eg-

CONSTRUCTION OF LEASES. 463

together with all rooms, chambers, and appurtenances thereto
belonging.*'

§ 301. When parol evidence is not received in the case of
leases. In the absence of fraud, accident or mistake evidence
of parol agreements made at the time of execution or before the
lease was executed, is not admissible to contradict or vary the
terms of a written lease.^* Thus, as a general rule, parol evidence
is not received for the purpose of diminishing the sum agreed
to be paid for rent unless in case of accident, fraud or mistake."
So, where there is no ambiguity in the description of the prem-
ises comprised in the lease, parol evidence is not- received to aid
in the construction of the lease.^^ If the language of the lease
is clear and intelligible, parol evidence is rejected. Thus, parol
evidence was rejected to show that the lessee explained the
meaning of the forfeiture clause to the lessor and that the latter
agreed with him in the explanation which he gave." So, where
a lease is silent, it will not be permissible to prove by parol that
the lessor stated the house was in good sanitary condition unless
the element of fraud or the falsity of statement is involved.^®
So, where there is an agreement between the lessor and the lessee
which is complete and intelligible upon its face, parol evidence
wiU not be received to show that a different agreement was made

53Kerslake y. White, 2 Stark. 144 Fed. Rep. 64; McQuire v.

508. Gerstley, 26 App. Div. 193; Green

54Snead v. Tietjen (Ariz.) 24 v. Dodge (Vt. 1906) 64 Atl. Rep.

Pac. Rep. 324; Cozens v. Steven- 499.

son, 5 S. & R. (Pa.) 421; Hertzler ss William v. Kent, 67 Md. 350,

V. Worman, 1 W. N. C. (Pa.) 153; 10 Atl. Rep. 228; Patterson v.

Ker V. Hunt, 1 W. N. C. (Pa.) O'Hara, 2 E. D. Smith (N. Y.) 58;

115; Hood V. McDonald, 1 W. N. Butler v. Smith's Homeopathic

C. (Pa.) 299; Loley v. Heller, 1 Pharmacy, 5 N. Y. St. Rep. 685;

W. N. C. (Pa.) 613; Taylor v. Taylor v. Goding (Mass.) 65 N. E.

Goding (Mass.) 65 N. E. Rep. 64; Rep. 64.

Patterson v. O'Hara, 2 E. D. 5« Ballance v. City of Peoria, 54

Smith (N. Y.) 58; Butler v. N. E. 428, 180 111. 29, 70 111. App.

Smith Pharmacy, 5 N. Y. St. Rep. 546.

885; Tait's Exr. v. Central Lunatic bt Hall v. Phillips, 1G4 Pa. St.

Asj'lum, 84 Va. 271, 4 S. E. Rep. 494, 30 Atl. Rep. 353.

697; Tyler v. Giesler, 85 Mo. App. 68 Stevens v. Pierce, 151 Mass.

278; Brown v. Schiappacassee, 115 207, 23 N. E. 1006.

Mich. 47, 72 N. W. Rep. 1096; 59 Snowhill v. Reed, 49 N. J. L.

Madden v. McKensie (C. C. A.) 292, 10 Atl. Rep. 737.

464 LAW OP LANDLORD AND TENANT.

which was not included in the lease.^® Thus, where the lease
provided for its surrender upon a certain event happening, it
will not be allowable to prove that this contract for a surrender
did not contain all the terms which had been agreed upon be-
tween the parties. And where the lease is silent the lessee is
not permitted to show by parol that at the date of its execution
he bought the business carried on by the lessor in the premises,
and the lessor agreed not to carry on that business so as to com-
pete with him. Such evidence is not admissible when offered
by the lessee in an action against him for the rent though he
may recover damages thereon against the lessor in another ac-
tion."" So, where the lease is silent, parol evidence is not ad-
missible to prove that the landlord had agreed that, in case of
the destruction of the premises by fire, the rent should cease
where this evidence is offered in an action on an absolute note
given for the rent.®^ So, an agreement by the lessor extending
the term of the lease and providing that fixtures shall become
the property of the landlord which is written on the back of the
written lease, cannot be varied by parol.*'- So, parol proof is
not received to show the use to which the landlord said the build-
ing was to be put, where the lease itself is silent on this point.^^
Parol evidence is inadmissible to contradict an agreement in the
lease by which the buildings on the premises were at the date of
the expiration of the tenn to become the property of the lessor.^*
Parol evidence has been rejected to show that the landlord repre-
sented that the premises were in good condition or fit for occupa-
tion,®^ or to show that an assignee of a lessee agreed to pay the
accrued rent due by his assignor.®® So, where the lease of a
coal mine contained no agreement as to how much coal was to
be mined, but fixed a certain royalty per bushel, it cannot be
shown by parol that the lessee agreed to dig any particular
quantity of coal.®'' The time fixed in the lease for the payment
of an instalment of rent cannot be contradicted by parol evi-

60 Scholtz V. Dankert, 69 Wis. c4 Tait's Ex'r v. Central Lunatic

416. 34 N. W. Rep. 394. Asylum, 84 Va. 271, 4 S. E. Rep.

05 Stafford v. Staunton, 88 Ga. 697.

298, 14 S. E. Rep. 479. 65 Button r. Gerrish, 9 Gush.

02 Walsh V. Martin, 69 Mich. 29, (Mass.) 89.

37 N. W. Rep. 40. os Graves v. Porter, 11 Barb. (N.

63 Bristol Hotel Co. v. Pegram, Y.) 192.

98 N. Y. Supp. 512. o" Lyon v. Miller, 24 Pa. St. 392.

CONSTRUCTION OP LEASES. 465

dence.^® The description of the lease cannot be extended by
parol.*" Nor can it be shown that the lease was to be commenced
at a later date than that s.pecified in it.''" And where the tenant
alleged that there has been a parol extension of the lease, the
burden of proof is upon him to show such an extension.'^^

§ 302. Parol evidence of custom to aid in the construction of
a lease. A lease is always open to explanation by parol as
between the parties to it where it is ambiguous or unintelligible,
by proof of custom and usage prevalent generally in the country
or in the district in which the premises are located. The lan-
guage of the lease cannot be varied by parol proof of custom/^
Thus, evidence of custom was rejected where it was offered to
prove that a right to the furnishing of steam and forced air
passed under the lease as appurtenances.^^ In order that the
custom shall be received in evidence, it is necessary to show that
such custom was general and was known to the parties who con-
tracted in a lease.'^* Proof of custom is admissible in respect
to all matters upon which the parties are silent as to their inten-
tion so far as the written lease is concerned.''^ Thus, proof of
custom will be received to show that a crop growing on the land
was regarded as personal property and was meant to be re-
served to the lessee.^* On the other hand, proof of custom preva-
lent in the vicinity has been received to show that the tenant has
a right to remove the crop or fixtures at the end of the term.
So, evidence of custom is admissible where a house is let to a
tenant at will to show that in such case the lessor attends to the
outside repairs, but it is not admissible to prove that the land-
lord had control of the outer walls, yard and roof of the house.''^

68 Barton v. Dawes, 10 C. B. ts Watkins v. Green, 46 Atl. Rep.

261; Mees v. Aneell, 3 Wils. 275; 38, 22 R. I. 34.

Norton v. Webster, 12 Ad. & El. 74 Whipple v. Tucker, 123 111.

442; Hope v. Atkins, 1 Price, 143. App. 223.

60 Carpenter v. Shanklin, 7 75 Cochrane v. Justice Min. Co.,

Blackf. (Ind.) 308. 16 Colo. 415, 26 Pac. Rep. 780;

70 Henson v. Cooper, 3 Scott's Van Ness v. Pacard, 2 Pet. (U.S.)

N. R. 48. 137, 148, 7 Law. ed. 374; Duncan

7iLutz V. Wainwright, 44 Atl. v. Blake, 9 Lea (Tenn.) 534, 537.

Rep. 565, 193 Pa. St. 541. 76 Youmans v. Caldwell, 4 Ohio

72 Whipple V. Tucker, 123 111. St. 71.

App.- 223; Werner v. Footman, 54 77 shute v. Bills. 191 Mass. 433,

Ga. 128. 78 N. E. Rep. 96, which was a case

30

466 LAW OF LANDLORD AND TENANT.

In England, it has been held that where rent has been made
payable. "Lady day" parol evidence of custom was received to
show what day was meant.'^ And it has also been held in Eng-
land that evidence of a custom in a particular trade which was
carried on in the premises, might be received to show the length
of the term where the lease was silent or ambiguous as to the
length of the term.^^ Thus, where the question was on the
obligation of the lessee to pay interest on an instalment of rent,
it may be shown that it was the custom of the lessor to receive
instalments of rent within ninety days after they had become
due.«°

§ 303 The modification of the lease by the parties. A lease,
whether in writing or in parol may always be modified as to its
terms by the consent of the parties on a good consideration.*^
If the lease is by parol, a modification by parol is unquestionably
valid. Where the lease is under seal and the modifying agree-
ment is not, the rule is not so clear. By the ancient common law
an instrument under seal could not be modified or discharged
except by an instrument of equal solemnity and dignity, i. e.,
by a writing also under seal. This is still recognized as a valid
rule of law in many of the states of the Union so far as writing-s
of a contractual nature, executed under seal are concerned, in
which class, leases under seal would be included.*" In other
jurisdictions, it has been held that a contract in writing, though
it was executed under seal may be modified as to any or all of
its terms by parol or by a writing without seal if the modifying
contract is based upon a valid consideration and is carried into

where it was attempted to hold a si Hanson v. Hellen (Me. 1886),

landlord liable for injuries aris- 6 Atl. Rep. 837.

ing from a hidden defect on the 82 in the following cases the rule

outside of the house. of the text was applied to leases:

78 Doe V. Hall, Benson, 4 B. & Palmer v. Sanders, 49 Fed. Rep.
Aid. 588; Denn d. Peters v. Hop- 144; Barnett v. Barnes, 73 111. 216;
kinson, 3 D. & R. 507. Goldsbrough v. Gable, 36 111. App.

79 In re Stroud, 8 C. B. 502, 503, 363; Flarsheim v. Dullaghan, 58
19 L. J. C. P: 117; Brincefield v. 111. App. 626; Volge v. Ronalds,
Allen (Tex. Civ. App. 1901), 60 S. S3 Hun, 114, 31 N. Y. Supp. 353;
W. Rep. 1010. Street R. R. Co. v. Morrison,

80 Thomas v. Railway, 10 Ohio Adams & Allen Co., 160 111. 280,
Fed. Dec. 544, 81 Fed. Rep. 911. 303, 43 N. E. Rep. 393; Knefel v.

Daly, 91 111. App. 32L

CONSTRUCTION OF LEASES.

467

effect. Where the modifying agreement is by parol, it must be
valid under the statute of frauds, or it must be wholly executed,
before it will be recognized by the law as a valid modification
of the written contract.^^

83 The rule of the text was ap-
plied to a lease in Chamberlain
V. Iba, 181 N. Y. 486, 74 N. B. Rep.
481, reversing 87 App. Div. 632, 84
N. Y. Supp. 1120. See, also, Hast-
ings V. Lovejoy, 140 Mass. 260,
265, 2 N. E. Rep. 776, 54 Am. Rep.
762; Munroe v. Perkins, 9 Pick.
(Mass.) 298; Mill Dam Foundry
V. Hovey, 21 Pick. (Mass.) 417;
Blasdell v. Souther, 6 Gray
(Mass.) 149. For the application
of the rule to leases see Hyler v.
Humble, 101 Ind. 38; Prior v.
Kiso, 81 Mo. 241; Evers v. Shu-
maker, 57 Mo. App. 454; Horgan
V. Krumweide, 25 Hun, 116; Mc-
Kenzie v. Harrison, 120 N. Y. 260,
263, 24 N. E. Rep. 458, 8 L. R. A.
257, 17 Am. St. Rep. 638. "The
reason of the rule was founded
upon public policy. It was not re-
garded as safe or prudent to per-
mit the contract of parties which

had been carefully reduced to
writing and executed under seal
to be modified or changed by the
testimony of witnesses as to the
parol statements or agreements of
parties. Hence the rule that tes-
timony of parol agreements shall
not be competent as evidence to
impeach, vary or modify written
agreements or covenants under
seal. But the parties may waive
this rule and carry out and per-
form the agreements under seal
as changed or modified by the
parol agreement, thus executing
both agreements, and when this
has been done and the parties
have settled with a full knowl-
edge of the facts, and in the ab-
sence of fraud, there is no power
to revoke or remedy reserved to
either party." By the court in
McKenzie v. Harrison, 120 N. Y.
260, on pp. 263, 264.

CHAPTER XIII.

FRAUD AND DURESS IN PROCURING THE LEASE.

§ 304. General rules as to duress and fraud in relation to contracts.

305. The effect of delay.

306. Fraud in the procurement of a lease.

307. The cancellation of the lease for duress or inadequacy of the

consideration.

308. Leases between persons occupying confidential relations with

the lessee.

309. The elements which must co-exist in the case of fraud.

310. The fraud of the tenant.

311. The tenant who has been defrauded need not abandon the

premises.

§ 304. General rules as to duress and fraud in relation to
contracts. The fact that the execution of a contract is pro-
cur d by duress or fraud may be used as a defense in an action
at law brought by the party who has been guilty of the fraud
or duress, or it may furnish the basis of a suit in equity brought
by the party who has executed the contract to set it aside. Du-
ress by threats must be of siuch a character as to create in the
person upon whom it is practiced a fear of some grievous wrong
or of great bodily harm or of unlawful arrest or imprisonment.
The threats must be of such a character as would be likely to
overcome a person of average firmness of mind. A threat to do
some act which is lawful to be done, as for example, a threat to
sue, or to attach property, or to arrest a person in a civil pro-
ceeding does not necessarily amount to duress. On the other hand,
a threat to make an unlawful arrest and to put the person
threatened in jail, or to keep him in imprisonment unlawfully,
constitutes duress where the person thus threatened bj'- weakness
of mind or body or by reason of ignorance of his rights executes
a contract. So, too, though a person is arrested by a legal
process, it is a clear case of duress if the arrest by legal process
is employ(!d for. and results in the procuring of an execution of
the contract by the person arrested which he would not have

FRAUD AND DURESS EN PROCURING LEASB. 469

executed if he liad not been arrested. But, duress may, and
usually does occur under circumstances where no arrest is im-
minent or threatened. The case of the procuring of a contract
by threats of grievous harm made to a person of weak mind
would be an example of duress. The rules above stated are ap-
plicable to contracts of all sorts and hence may be applied to
leases. "We are, however, without very many cases in the books
or in the reports where leases have been actually procured by
duress but where such cases exist the eases cited under the fol-
lowing sections may be of service.

§ 305. The effect of delay. If a lessee desires to avoid or re-
scind a lease for fraud or misrepresentation or for a mutual mis-
take, he must, upon his discovery of the facts, act promptly. He
should notify the other party of his purpose and intention and
having done this, he must adhere to his purpose. By remaining
silent and treating the lease as valid after he has discovered the
fraud or mistake, it will be presumed that he has waived his
rights ; he will thereby be bound by the lease to the same extent
as though no fraud or mistake had occurred.^ The failure of the
lessee for an unreasonable period to bring a suit to rescind the
lease after he has discovered the fraud which has been committed
by the lessor, is an election by the lessee to continue the lease;
he will therefore be liable to his lessor on the covenant for rent
and on all other covenants, though he has an action at law against
his lessor for damages for deceit.^ A lessee, who in equity de-
mands the cancellation of his lease should either promptly sur-
render possession or tender a surrender to his lessor, and having
surrendered possession, he will be compelled to continue out of
possession. Thus, a lessee who surrendered possession of the
premises because they were out of repair and uninhabitable,
loses all rights to have his lease rescinded in equity because
of the landlord's fraud where, after having left the premises, he
re-enters upon them and continues to hold them.' The unreason-
able delay of the tenant in asking equity to rescind the lease

1 Grymes v. Sanders, 93 U. S. 55, Baker, 43 Minn. 86, 44 N. W. Rep.

23 Law. Ed. 798; Oppenheimer v. 676.

Clunie, 142 Cal. 313, 75 Pac. Rep. 2 Little v. Dyer, 35 111. App. 85.

399; Commissioner V. Younger, 29 s Blake v. Dick, 15 Mont 236,

Cal. 177; Ginch v. Causey (Va. 38 Pac. Rep. 1072.
1907), 57 S. E. Rep. 562; Bell v.

470 LAW OF LANDLORD AND TENANT.

will be laches and will defeat his suit. It is for the court to de-
termine upon all the facts of each case what delay is unreason-
able.* In one case it was said that a rescission or an attempt to
rescind a lease made a month after the tenant had entered upon
the premises was in season, though he had ascertained the facts,
showing the falsity of his landlord's statements as to the condi-
tion of the premises immediately after taking possession ; this
would be the case where the tenant was free from delay in noti-
fying his landlord.^ A tenant, who after he has discovered
the fraud of his landlord in procuring him to execute a lease,
continues in the possession of the premises and pays rent regu-
larly dviring the greater portion of the term, is thereby barred
from alleging or proving that the execution of the lease was
procured by fraud where his landlord sues to recover rent for
the remainder of his term.® The defense that a lease was ob-
tained by duress interposed by a tenant has no merit where it
appears he has held over after the expiration of the term. If
the execution was in fact under duress by the lessor, the lessee
is conclusively estopped to plead it by his acceptance, of the pos-
session and by holding over after the term is ended. In such a
case the lessor might have disregarded the lease altogether and
sued for use and occupation for which in fairness and equity the
lessee is bound to pay.'^

§ 306. Fraud in the procurement of a lease. A lease like
every other contract, is voidable for fraud in its procurement.'

4 Barker v. Fitzgerald, 68 N. E. ceived thereby. He must also al-
430, 204 111. 325. lege and prove that the lessor

5 Cunningham v. Wathen, 43 N. knew the representations were
Y. Supp. 886. false. Bauer v. Taylor, 4 Neb.

oBell V. Baker, 44 N. W. Rep. (Unof.) 701, 96 N. W. Rep. 268.

676, 43 Minn. 86. A defense in an action by the

7 Andrew v. Carlile, 4 Colo. App. landlord for his rent that the

336, 36 Pac. Rep. 66, 67. The ten- lease was obtained by duress is

ant who alleges fraud in the pro- not sustained by proof that the

curement of a lease as a set off landlord told the tenant he must

or defense in an action to recover pay rent or vacate, particularly

the rent has the burden of proof. as there is no allegation or proof

He must allege the fraud specific- that the tenant did not understand

ally and also where he alleges the terms of the lease which he

false representations that they executed. Andrew v. Carlile, 4

were made with an intent to de- Colo. App. 336, 36 Pac. Rep. 66.
ceive him and that he was de- s As to leases, see Haines v.

FRAUD AND DURESS IN PROCURING LEASE, 471

So, a lea-se which has been obtained by fraud and circumvention
from a landlord who, when he executed it, wa.s in a state of in-
toxication, is void.® The presumption, however, is always in
favor of the good faith of the lease. The parties will be pre-
sumed to have been competent to contract and the lease will be
presumed to be free from fraud in the absence of any evidence
to the contrary. It will be presumed that the landlord spoke the
truth as to the condition of the premises and as to the rent which
he was receiving for their use. In order to persuade a court of
equity to set aside a lease for fraud, there must be satisfactor\'
evidence of fraud. Proof beyond a reasonable doubt is not re-
quired but in every case the proof must be such that it shall
create something more than a mere probability that fraud was
employed in procuring the lease or that the landlord spoke
falsely.^" The party to the lease alleging fraud has the burden
of proof and fraud must always be shown by clear and satisfac-
tory evidence." ^Wtat in any case shall constitute fraud w^hich
will justif}^ the rescission of the lease depends in all eases upon
the peculiar facts and circumstances of each case. Merely mis-
representating the legal effect of the language of a written lease
is not fraud. "^ Fraud in procuring the execution of a lease may
be committed by either party. It is fraud in the lessee, justify-
ing the rescission of a lease by the lessor for the lessee to state
falsely that he is solvent, has paid his rent promptly to other
landlords and has considerable personal property which he will
pledge as security for the rent," or for a lessee to misrepresent

Downey, 86 111. App. 373; Fry v. W. Rep. 105; Lynch v. Sauer, 37

Day, 97 Ind. 348; Martin v. Davis, N. Y. Supp. 666, 13 Misc. Rep. 1.

96 Iowa, 718, 720, 65 N. W. Rep. » Butler v. Mulvihill, 1 Bligh. 137.

1001; Ball V. Lively, 4 Dana (Ky.) lo Smith v. Collins (Ala.), 41

369; Christie v. Blakeley (Pa. So. Rep. 825; Abel v. Collins

1888), 15 Atl. Rep. 874; Lock v. (Ala.), 41 So. Rep. 826.

Frasher's Adm'r, 79 Va. 409; Hur- n Wolfe v. Arrott, 109 Pa. St.

liman v. Seckendorf, 18 N. Y. 473. 1 Atl. Rep. 333; Ringle v.

Supp. 756, 46 N. Y. St. Rep. 301; Quigg (Kan. 1906), 87 Pac. Rep.

Pursel V. Teller. 10 Colo. App. 488, 724.

51 Pac. Rep. 436; Powell v. F. C. iiaFry v. Day, 97 Ind. 348, 350,

Linde Co., 64 N. Y. Supp. 153; in which the lessee told the lessor

Haines v, Downey, 86 111. App. that the lease was a receipt and

373; Cunningham v. Wathen, 43 he signed it in that belief.

N. Y. Supp. 886, 14 App. Div. 553; i- Martin v. Davis, 96 Iowa, 718,

Newcome v. Emery (Ky.), 42 S. 720, 65 N. W. Rep. 1001.

472 LAW OP LANDLORD AND TENANT.

the terms of a lease to his lessor who cannot read.^'^ But mere
promises by the lessee that he will do something in the future
by reason of which the lease is executed by the lessor is not
fraud. Thus statements by the lessees that a corporation was
soon to be formed in which they would be interested and that
operations on the demised premises would be begun at once do
not constitute fraud.^^ Fraud by the lessor is more often met
with than fraud by the lessee. The lessor's fraud may consist
in a wilful misrepresentation of the condition of the premises in
some material respect and with knowledge that he is speaking
falsely.^*

§ 307. The cancellation of the lease for duress or ftiadequacy
of the consideration. A lease will be cancelled in equity upon
the suit of either party to it for inadequacy of consideration.
But mere inadequacy of consideration alone will not justify a
court of equity in cancelling the lease unless the inadequacy is
so great as to furnish some indication of fraud on the part of
the party against whom the action is brought. ^"^ For an owner
of land has an absolute right to lease it for any consideration
which may be satisfactory to him, however small. Hence, it fol-
lows that the smallness of the rent in comparison to the rental
value of the land will not alone justify the landlord in having
a lease set aside although this may be a fact to be considered.
The landlord must tender, or offer to tender, and pay into court
what he has received upon the lease where he moves in equity
to set aside a lease because it was obtained by collusion between
the tenant and the agent of the landlord for an inadequate con-

12a Christie v. Blakeley (Pa. of the chancellor's foot the meas-

]888), 15 Atl. Rep. 874. ure of individual rights. The

13 Love V. Teter, 24 W. Va. 741. greatest liberty of making con-

14 Supra, § 306. Wolfe v. Arrott, tracts is essential to the inter-
109 Pa. St. 473, 478, 1 Atl. Rep. ests of the country. In general,
333. "The power to cancel a con- the parties must look out for
tract is a most extraordinary themselves." Colton v. Stanford,
power. It is one which shall be 82 Cal. 398, 23 Pac. Rep. 28, 16
exercised with great caution — Am. St. Rep. 137, quoted with ap-
nay I may say with great reluc- proval in Oppenheimer v. Clunie,
tance — unless in a clear case. A 142 Cal. 313, 75 Pac. Rep. 899.

too free use of this power would is Smith v. Collins (Ala.), 41

render all business uncertain, and. So. Rep. 825.
as has been said, make the length

FRAUD AND DURESS IN PROCURING LEASE. 473

sideration.*' In determining the inadequacy of rent or other
consideration proceeding from a lessee in a case where it is at-
tempted by a lessor to set it aside for fraud, the court may con-
sider the value of the land in the open market and also what it
would rent for, or if it is cultivated farm land, what crops it
would produce. The inadequacy of the rent which is to be paid
in cash in proportion to the actual rental value of the land or of
similar land in its neighborhood is relevant. The character, oc-
cupation and financial standing of the lessee and his ability to
perform his covenants may also be considered. Thus a covenant
by him to pay taxes and keep fences in repair and to make cer-
tain specified improvements will certainly not. augment the con-
sideration where the lessee is insolvent. And while the covenants
of a responsible and solvent lessee to make substantial improve-
ments on the premises which are to become the property of the
lessor may be evidence showing a valuable consideration, a
covenant of such a lessee to make trivial repairs adds very little
to the benefit the lessor will receive." A lease may be cancelled
in equity or reformed for a mistake made in its terms, but a
lease will not be reformed for mistake as to the amount of rent
which is to be paid thereunder unless it shall appear to the sat-
isfaction of the court that the mistake was mutual. This is the
general rule, but it has been held that a court of equity will not
allow the intending lessee to take advantage of the lessor in stat-
ing the rent in an agreement for a lease and compel the lessor
to insert the mistaken rent in the lease. Thus, where the parties
to the lease signed an agreement to make a lease at a certain fixed
rent, and the lease, when it was executed by them by mistake of
the lessor stated a much lower rate of rent, the court assumed
that the lessee had noticed the mistake and had kept silence with
the intention of gaining an undue advantage over the lessor on
account of the error. In this ease it was held that although the
lessor was not entitled to have the lease reformed in equity be-
cause the mistake was not a mutual mistake yet, the lessee not
being without fault though innocent of any fraud, should be
compelled to take a lease with the correct rent stated in it, but
he might, if he did not care to do this, surrender the premises
upon paying the lessor for their use and occupation for the pe-

16 Abingdon v. Butler, 2 Cox, 260, i" Dickson v. Kempinsky, 96

3 Bro. C. C. 112, 1 Ves. Jun. 206. Mo. 252, 9 S. W. Rep. 618, 621.

474 LAW OF LANDLORD AND TENANT,

riod he had been in possession of them at the rate of rent stated
in the agreement for the lease. ^® So, where a mistake in stating
the rent in a lease did not appear to be mutual but the lessee had
accepted the lease with the knowledge of the mistake the reforma-
tion of the lease was denied, though the court directed the lease
and the agreement for the lease to be delivered up and can-
celled.^" Under certain circumstances and particularly where
equitable remedies are recognized in a court of law, the lessee
may be granted a reformation of the lease in an action against
him for the rent. This rule was laid down in a case where, through
a mistake in drawing the lease, a covenant by the lessor to make
repairs was omitted, and the lessee having made repairs en-
deavored to off-set his damages in an action against him for the
rent due in his covenant.^" The fact that premises had always
been leased for a larger rent than is named in the lease and that
a tenant is a complete stranger to the landlord at the date of the
execution of the lease is strong corroboration of the evidence of
a landlord that the rent reserved in a written lease was under-
stated by a mutual mistake of the parties.^^

§ 308. Leases between persons occupying confidential rela-
tions with the lessee. Leases, the parties to which stand in con-
fidential relations to each other, like other contracts between
such persons, are regarded with careful scrutiny by the courts.
The mere fact of the confidential relationship may not alone
subject a lease to suspicion. Hence, it follows that leases, the
parties to which stand in the relation of principal and agent;
attorney and client; trustee and beneficiary, and the like, are
not in themselves invalid. Thus, the agent may as lessee take a
lease from his principal if he shall prove that the lease was
made after the principal had received from the agent full
knowledge of all the circumstances relating to it and that the
lease was entered into in perfect good faith. -^ But a lease which
is procured by an agent or an attorney to himself as lessee for an
inadequate consideration, and particularly where the lessor is
in embarrassed circumstances, may be rescinded if the circum-

18 Garrard v. Frankel, 30 Beav. 21 Garrard v. Frankel, 30 Beav.

445, 31 L. J. Ch. 604, 8 Jur. (N. S.) 445, 451, 31 L. J. Ch. G04, 8 Jur.

985. (N. S.) 985.

10 Gun V. McCarthy, 13 L. R. Ir. 22 Molony v. Keruan, 2 Dr. &

304. War. 31.

20 Thomas v. Conrad. 24 Ky. Law
Rep. 1630. 71 S. W. 903.

FRAUD AND DURESS IN PROCURING LEASE. 475

stances are such that duress or fraud may reasonably be infer-
red. In the case of a confidential relationship between the
lessor and the lessee a lower degree of proof of fraud or duress
is required than in ordinary circumstances.^^ If the whole lease
is tainted with fraud, duress, or undue influence it may be
wholly set aside and cancelled; but if it appears from the evi-
dence that a portion of it only is the result of fraud the lessee
may have a reformation of the lease as to the portion which is
fraudulent. Thus, where a landlord who was not accustomed to
transacting business agreed with a professional friend that he
would let his friend have a part of the premises owned by him
on a lease and the friend at once drew a lease for a term of five
years with a privilege of a renewal for a further term of fifteen
years, and which took in a greater tract of land than the owner
said he would lease, the lease was reformed in equity as being a
fraudulent contract and as procured by an abuse of the confi-
dence which the landlord had in the lessee ^* as his friend and
adviser.

§ 309. The elements which must co-exist in the case of fraud.
In order that a court of equity may be justified in setting aside
a lease at the suit of the lessee on the ground that it was ob-
tained by fraudulent representations made by the landlord, it
must be shown by clear and convincing evidence ; iirst, that the
landlord made representations in regard to some material fact
in connection with the premises ; second, that this representation
was false; third, that the representation was known to be false
by the landlord or at least that he had no reasonable grounds for
believing it to be true ; fourth, that the representation was made
with the intention on the part of the landlord that it should be
believed and acted on by the tenant ; fifth, that it was acted on
by the tenant to his damage; and sixth, that in so acting on it
the tenant was ignorant of its being false and believed it to be
true or had reasonable grounds to believe it to be true.-° The
false representation must be as to a material fact. A false repre-
ss Ward V. Hartpole, 3 Bligh. quoting Southern Development Co.
470. V. Silver, 12& U. S. 250, 8 Sup. Ct.

24Bowen v. Wolff, 23 R. I. 56, 881, 31 Law ed. 678; Bayles v.
49 Atl. Rep. 395. Clark, 100 N. Y. Supp. 586; Haines

25 Oppenheimer v. Clunie, 142 v. Downey, 8G 111. App. 373.
Cal. 313, 75 Pac. Rep. 899, 901,

476 LAW OF LANDLORD AND TENANT.

sentation as to some collateral or independent fact wliicli has no
bearing on the procurement of the lease, will not justify a find-
ing of fraud. The representation is material as regards the ques-
tion of fraud, when it is of such a character that, if it had not
been made, the lease would not have been entered into. But
though the misrepresentation which is used as a basis for a charge
of fraud must be material it need not have been the sole cause of
the making of the lease, though it must always be of such a na-
ture, weight and force that the court can fairly say without this
representation the lease would not have been entered into by the
other party.-® If the landlord for the purpose of inducing the
making of the lease states of his personal knowledge that a mate-
rial fact in relation to the condition of the premises does or does
not exist, without having knowledge whether his statement is true
or false, and without having reasonable grounds to believe it to be
true, he is liable for fraud, if the lessee relies upon his statement
and it is subsequently found to be false, though the landlord did
not actually know the statement was untrue."^ If the lessor has
knowledge of defects in the premises which are not discoverable
by the tenant upon practical examination, and which will imperil
his person or property a liability arises from the fraudulent con-
cealment of such defects and, in the application of this rule, the
terms fraud, fraudulent concealment, constructive fraud and
deceit are synonymous. ^^ Thus, for example a wilful misrepre-
sentation of the condition of the premises by the lessor in some
material respect and with a knowledge on his part that he is
speaking falsely is sufficient.-'' But a landlord cannot be held
to be guilty of fraud in procuring the execution of a lease where
he remains silent as to the condition of the buildings.^" The ten-
ant must investigate for himself. He is put upon inquiry as to
those matters in relation to the premises upon which he can in-
form himself by the use of ordinary diligence and care and, as
to such matters, the silence of the landlord raises no presump-

20 Colton V. Stafford, 82 CaL 399, 28 Shinkle v. Birney, 68 Ohio

23 Pac. Rep. 28, 16 Am. St. Rep. St. 328, 334, 67 N. E. Rep. 715.

137. 29 Wolfe V. Arrott, 109 Pa. St.

zTDaly V. Wise, 132 N. Y. 306, 473, 478, 1 Atl. Rep. 333.

30 N. E. Rep. 837, 16 L. R. A. 236; so Blake v. Dick, 15 Mont. 236,

Prahar v. Tousey, 93 App. Div. 241, 38 Pac. Rep. 1072, 48 Am. St.

507, 87 N. Y. Supp. 845; Haines Rep. 671.
V. Downey, SG 111. App. 373.

FRAUD AND DURESS IN PROCURING LEASE.

477

tion of fraud.'^ Thus, where the tenant inspects the buildings
before he leases it the silence of the landlord as to the fact that
the cellar is liable to become flooded in case of rain does not con-
stitute fraud on the part of the landlord.^- But where the land-
lord knows the use to which the building is to be put by the ten-
ant, and knows a secret defect in the building which renders it
unfit for this use, and he fraudulently conceals that defect the
tenant may obtain a rescission of the lease for fraud. '^ The les-
sor who makes any statement which is material to the premises
in question, aside from a mere expression of his opinion, is bound
to speak the truth. If he makes any statement as to the condition
of the premises at the time of the execution of the lease which is
an inducement leading the lessee to execute the lease he must
speak the truth or take the consequences of his misrepresenta-

31 Schermerhorn v. Gouge, 13
Abb. New Cases (N. Y.) 315;
Keates v. Cadogan, 10 C. B. 591,
70 E. C. L. 591.

32 Blake v. Dick, 15 Mont. 236,
38 Pac. Rep. 1072.

33 Haines v. Downey, 86 111.
App. 373; Bauer v. Taylor, 4 Neb.

(Unof.) 710, 98 N. W. Rep. 29,
modifying 96 N. W. Rep. 268;
Minor v. Sharon, 112 Mass. 477, 17
Am. Rep. 122; Cesar v. Karutz, 60
N. Y. 229; Myers v. Rosenback,
25 N. Y. Supp. 521, 5 Misc. Rep.
337, 11 Misc. Rep. 116, 31 N. Y.
Supp. 993, affirmed in 13 Misc. Rep.
145, 34 N. Y. Supp. 63. See, also,
14 Misc. Rep. 638, 36 N. Y. Supp. 7.
In Milliken v. Thorndike, 103
Mass. 382, 385, the lessees on say-
ing to the lessor they were not
satisfied with the way the store
was built, that it had settled and
was not safe, were told by him
that it was built according to the
plans In every particular, which
was not true, the drains being
improperly placed. The court said
by Colt, J.: "It is objected that
the evidence did not justify this

finding, because it is apparent
from the subject-matter, that the
representation made was intended,
and should have been understood
by the defendants, as only an ex-
pression of a strong belief. If a
statement is honestly made as a
matter of opinion, judgment or
estimate it is not in law a false
representation, though the matter
thus stated should turn out to be
untrue. But if a fact which is
susceptible of knowledge is stated
by a party as of his own knowl-
edge, and such representation is
relied upon as the basis of a con-
tract, and damage results to the
party deceived, it is a legal fraud,
the consequences of which must
be born by him who makes the
statement. The representation in
this case was of the latter descrip-
tion. It was of a fact, the exist-
ence of which was not open and
visible, of which plaintiff (the
landlord) had superior means of
knowledge and the language in
which it was made contains no
words of qualification or doubt."

478 LAW OP LANDLORD AND TENANT.

tion.-^* So where the lessor tells an incoming lessee that the
plumbing in the demised premises is perfect and that they are
free from sewer gas and the lessee relying on these promises en-
tered into the lease the tenant may have the lease rescinded for
the landlord's fraud.^^ So, where a landlord makes a false state-
ment that he has in times past received a certain rental for the
premises which is in excess of the rental which the lessee agrees
to pay, and the lessee relies on these statements, signs the lease
and enters into the premises, he may, when he subsequently finds
these statements to be false rescind the lease for fraud.^*^ But the
fact that the landlord's agent falsely stated the amount of rent
which the landlord had received and also the quantity of the
land which the lease was to include, by reason of which the
lessee took the lease at a higher rent, is not sufficient to enable
him to defend upon the ground of fraud where he could have
easily ascertained the facts in the case.^^ So, also, under the
rule that the assignee of a lease is chargeable with knowledge of
its contents an assignee cannot take advantage of misrepresenta-
tion as to its contents made by the assignor, or by the lessor who
induced him to take the assignment, or who induced him to take
a new lease from the lessor when the lease which has been as-
signed has expired.^^ And the question of the exercise of due
diligence by the lessee in examining the premises before he signs
the lease is one for the jury to determine upon all the facts. ^^
So, generally statements by the lessee or by the lessor which are
merely in the character of promises without consideration to do
something in the future or the opinions upon which the other
party had no right to rely do not constitute fraud. Thus, where
the landlord represents to the tenant while they were examining
the premises that the floor and the light would be all right, and
that the light would be sufficient and the rooms comfortable and
convenient when certain partitions were removed there is no

34 Haines v. Downey, 86 111. ^'^ Merritt v. Dufur, 99 Iowa,

App. 373. 211, 68 N. W. Rep. 553.

3!-. Pursel V. Teller, 10 Colo. App. 38 Powell v. F. C. Linde Co., 29

488, 51 Pac. Rep. 436. Misc. Rep. 419, 60 N. Y. S. 1044;

38 Powell V. F. C. Lynde Co., 64 Clemens v. Knox, 31 Mo. App. 185.

N. Y. Sui)p. 1.^.3, 49 App. Div. 286, 39 Ladner v. Balsey, 103 Iowa,

reversing 60 N. Y. Snpp. 1044, 29 674, 72 N. W. 789; Gee v. Moss, 68

Misc. Rep. 419. Iowa, 318, 27 N. W. Rep. 268.

P^RAUD AND DURESS EN PROCURING LEASE. 479

fraud sufficient to rescind the lease.*" So, the landlord of a
farm leased for the purpose of raising stock stating that the land
would afford sufficient water for the purposes intended by the
lessee does not constitute fraud.*^ And, it is not possible for the
lessor to obtain cancellation of the lease because one of the sev-
eral lessees failed to purchase goods from the lessor as the lessees ,
had agreed to do in order to procure the lease.*^

§ 310. The fraud of the tenant. The landlord may claim
fraud or misrepresenation on the part of the tenant in procuring
him to execute a lease and he may have the same set aside in
equity if he shall prove facts which would enable the tenant to
have the lease set aside as against the landlord. Thus, where a
lease was drawn by a tenant who, on presenting it to the land-
lord for his signature, misrepresented its terms on reading it to
the landlord who was unable to read, and the landlord relying
upon the tenant signed it, he may have it set aside.*^ The land-
lord should act promptly on the discovery of the fraud.** Thus,
on the discovery by the lessor that a guarantee which was en-
dorsed on the lease is a forgeiy committed by the lessee, the land-
lord may elect either to treat the lease as invalid by reason of
the fraud or he may affirm it and sue for the rent.*' For he has
the same right to elect or affirm the lease as the tenant. If he
shall deem it to liis interest to disregard the fraud of the tenant
and affirm the lease it becomes binding upon him in all respects
and the tenant may thereafter enforce any remedies which he
may have under the lease against the landlord. The landlord
cannot, however, grant a lease for a term under which the ten-
ant enters into possession of the premises and have it set aside
for fraudulent statements by the tenant as to matters which
were collateral to the lease. Thus, for example, the landlord
cannot have the lease set aside because the tenant represents
that he is a respectable person and falsely states to the landlord
that he means to use the premises to carry on a respectable

•*o Boyer v. Commercial Build- ^'^ Christie v. Blakely (Pa. St.),

ing Inv. Co.. 110 Iowa, 491, 81 N. 15 Atl. Rep. 874.

W. 720. "Donegal (Marquis) v. Grey,

4iBowen v. Hatch (Tex. Civ. 13 Ir. Eq. R. 12; Davies v. Oliver,

App.), 84 S. W. Rep. 336. 1 Ridgw. P.C.I; Long v. Fletcher,

42 Hill V. Rudd. 18 Ky. Law 2 Eq. Abr. 5.

Rep. 55, 35 S. W. Rep. 270. *5 Brooks v. Allen, 146 Mass.

201, 202, 15 N. E. Rep. 584.

480 LAW OF LANDLORD AND TENANT.

business even though it appears that the lessee at the date of
the execution of the lease intended to use the premises for an
immoral and illegal purpose.*^ But under such circumstances
there would be no necessity for the landlord to resort to equity
for the rescission of the lease as the contract itself would be
void and uninforceable so far as the tenant is concerned be-
cause of the immoral use which the tenant would make of the
premises,

§ 311. The tenant who has been defrauded need not aban-
don the premises. A tenant who is induced to take a lease by
fraud or duress must, as soon as he discovers the fraud, prompt-
ly repudiate the lease or surrender or offer to surrender the
premises.*'^ He cannot imder ordinary circumstances, remain
in possession of the premises after he has discovered the fraud
and set up the fraud as a defense to an action to recover the
rent.*^ This rule, however, has been sustained in only one or
two of the states. In the majority of the states it has been
held that a tenant who is induced to make a lease by fraudu-
lent representations is not bound to give up the premises on
his discovery of the fraud, but he may retain them and set up
his damages resulting from the fraud as a set-off or counter-
claim in an action for the rent.*^ The distinction between the
two lines of cases is not a real one and they are by no means
inharmonious. The true rule seems to be this, that the fact
that the lease was executed or procured by the landlord's fraud
or misrepresentation, does not confer a right on the tenant to
refuse to pay rent while he occupies the premises; but if he is
actually damaged by the fraud, he may elect whether to sur-
render the premises to the landlord and thus escape all liability
for future rent, or he may remain in the premises when he will

40Feret v. Hill, 15 C. B. 307, 2 enbuck, 25 N. Y. Supp. 521; Barr

C. L. R. 13CG, 23 L. J. C. P. 186, v. Kimball, 43 Neb. 766, 62 N. W.

18 Jur. 1014, 2 W. R. 493. Rep. 196; Bauer v. Taylor, 4 Neb.

47 Lynch v. Sauer, 16 Misc. Rep. (Unof.) 701, 96 N. W. Rep. 268,

1, 2, 37 N. Y. Supp. 666. 270; Dennison v. Grove, 52 N. J.

48Forgotson v. Becker, 81 N. Y. Law, 144, 19 Atl. Rep. 186; Whit-

S. 319; Powell v. P. C. Linde Co., ney v. Allaire, 4 Denio (N. Y.)

60 N. Y. Supp. 1044; Sisson v. 554, affirmed in 1 N. Y. 305. See,

Kaper (Iowa), 75 N. W. Rep. 490. also, Holston v. Noble, 83 Cal. 7,

40 Wolfe V. Arrott, 109 Pa. St. 23 Pac. Ren. 58.
473, 1 Atl. Rep. 333; Myers v. Rosr

PROPERTY WHICH IS INCLUDED IN THE LEASE. 481

continue to be bound to pay rent with the right to recover as a
set-off the actual damages he may have suffered through the
fraud of the landlord.^" For the performance and validation
of a contract which he had the power to rescind absolutely wall
not be permitted to work him an injury as he may recover any
damages he may have suffered by the landlord by the set-off
for the rent or for the injury received by him.^^ It may hap-
pen that in restoring the leased premises to the lessor upon the
rescission of the lease, it will be impossible to restore them in
precisely the same condition they were when delivered to the
lessee as none of the tenants who were in the building when it
was rented to the lessee are in it when he vacates it and when
it is restored to the lessor under the decree of rescission.
Changes and alteration may have been made by the lessee dur-
ing his occupancy, or by a receiver who may have been appointed
during the action. And even though there may have been no
changes or alterations of this character and no repairs by
either party during the occupation of the tenant, there can never
be a restoration line for line and comer for corner. The prem-
ises will have deteriorated by natural wear and tear and by the
decay caused by lapse of time, use and exposure to the ele-
ments. There may have been a decline in value or the premises
may, for any number of reasons, have become less desirable. So,
the character of the purpose for which they may be rented
may have materially changed them for the worse. In respect to
all these incidents, there cannot be a perfect restoration nor does
equity demand it. If a rescission is necessary, it will be ordered
if the condition of affairs is such that a substantial restoration
can be made.'^

50 Little V. Dyer, 35 111. App. 85; Conklin v. White, 17 Abb. N.

Marcy v. Pierce, 14 111. App. 91; Cases, 315; Kierman v. Terry, 26

Respell V. Carwin, 72 111. App. 623; Oreg. 494, 38 Pac. Rep. 671; Bauer

South's Adm'x v. Marcum, 15 Ky. v. Taylor, 96 N. W. Rep. 268.

Law, 339, 22 S. W. Rep. 844; Milli- bi Irving v. Thomas, 18 Me. 418.

ken V. Thorndike, 103 Mass. 382, See, also. Hall v. Ryder, 152 Mass.

389; Hall v. Ryder, 152 Mass. 528, 528, 529, 25 N. E. Rep. 970; Pryor

529, 25 N. E. Rep. 970; Bell v. Ba- v. Foster, 130 N. Y. 171, 29 N. E.

ker, 43 Minn. 86, 44 N. W. Rep. Rep. 123.

676; Rosenbaum V. Gunter. 3 B. D. 52 Hoops v. Fitzgerald, 204 111.

Smith (N. Y.) 203; McCarty v. 325, 333, 68 N. E. Rep. 430.
Ely, 4 E. D. Smith (N. Y.) 375;

31

CHAPTER XIV.

THE ATTORNMENT OF THE TENANT.

§ 312. Attornment defined

313. Payment of rent as constituting attornment.

314. Tlie necessity for the landlord's consent to the attornment.

315. The effect of the statute of Anne upon attornment.

316. The tenant's attorn to a mortgagee or purchaser at foreclosure.

317. The statutory rights of the grantee of the reversion.

318. The grantee's right to collect rent.

319. The extent of the rights of the grantor after his conveyance.

320. The obligations of a grantee to tenants in possession.

321. The notice to the tenant of the sale of the reversion.

322. The effect of a sale of the reversion under a decree or judgment.

§ 312. Attornment defined. An attornment is the acknowl-
edgement by a tenant of a new landlord on the alienation of
the land and an agreement to become a tenant to the purchaser.^
Thus, where a sale of the reversion takes place and is brought
to the knowledge of the tenant and he by any language or con-
duct recognizes the title of the purchaser, it is an attornment."
This would be the case where he pays,^ or promises to pay

1 Whart. Law Diet. 66, 1 Bouv. word is from the feudal law, where

Law Diet.; Lindley v. Dakin, 13 it signifies the transfer, by act of

Ind. 388, 389; Freeman v. Moffit, the lord and consent of the ten-

119 Mo. 280, 29&, 25 S. W. Rep. ant, of the homage, fealty, etc., of

87, 91; Wilson v. Lyons (Neb.), 94 the tenant to a new lord who had

N. W. Rep. 636, 637; Souders v. acquired the estate. Abbott's Law

Vansickle, 8 N. J. Law, 313, 317. Dictionary; Willis v. Moore, 59

See, also, Foster v. Morris, 3 A. Tex. 636. Attornment is the con-

K. Marsh. (Ky.) 610, 611, 13 Am. sent of a tenant to the grant of

Dec. 205; Willis v. Moore, 59 Tex. the landlord; he must be a tenant,

636. An attornment does not ere- and the grant assented to must

ate a new tenancy, it is merely a be that of his landlord; the as-

continuancy of the former tenancy sent of any stranger is no attorn-

with a new landlord. Austin v. ment for want of privity. Soud-

Ahearne, 61 N. Y. 6. By attorn- ers v. Vansickle, 8 N. J. Law, 317.

ment is meant the act of recogni- 2 Thompson v. Chapman, 57 Ga.

tion of a new landlord, implying 16.

an engagement to pay rent and s Fisher v. Deering, 60 111. 114.
perform covenants to him. The

ATTORNMENT OF THE TENANT. 483

rent * to the purchaser of the reversion from his landlord.^ The
distinction between an attornment and a new tenancy is very
clear. Where the original landlord transfers his estate in re-
version to another and the tenant of the former a^ees to hold
of the latter, it is an attornment. This is the act of the ten-
ant putting- a person in the place of his former landlord, and
he continues to hold of his new landlord upon the same terms
as he held of the old. But where there is no attornment but a
new tenancy, the new lease may, but need not necessarily, vary
in its time, rent and conditions from the old lease according to
the agreement of the parties.''

§ 313. Payment of rent as constituting attornment. The
payment of rent by a lessee to a grantee of the reversion,*'^ or to
some third person at his direction with his own receipt for the
rent," is an acceptance of the person paying the rent as a ten-
ant and constitutes an attornment under the modern statutes.
This is so even though the rent was paid under the threat of a
suit and was accompanied by a protest by the tenant and the
denial of the right of the grantee to claim the money. Nor can
the lessee when paying rent destroy the effect of that act as
proof of an attornment by accompanying the payment with a
declaration that he does not consider that the relation of land-
lord exists between him and the payee.^ So, the payment of
rent under a lease of an easement in a party will by an heir
of the lessee after he had come into the possession of the build-
ing to which the easement was an appurtenance, is an attorn-
ment of the heir to the lessor and creates the relation of land-
lord and tenant between them. The lessor under the party wall

4 Hayes V. Lawyer, 83 111. 162. I. 701, 36 Atl. Rep. 719; Hayes

sFlagg V. Geltmacher, 98 111. v. Lawyer, 83 111. 162; Flagg v.

293. Geltmacher, 98 111. 293; Border-

e Austin v. Ahearne, 61 N. Y. 6. eaux v. Walker, 85 111. App. 86;

16, 17; Cornish v. Searell, 8 B. & Gartside v. Outley, 58 111. 210, 11

C. 471, 15 E. C. L. 267. See, also. Am. Rep. 59; Cummings v. Smith,

Doe V. Edwards, 5 Ad. & El. 95, 114 111. App. 35; Hogsett v. Ellis,

103, 31 E. C. L. 287; Doe v. Boul- 17 Mich. 351; Mason v. Gray, 36

ter, 6 Ad. & El. 675, 33 E. C. L. Vt. 308, 312.

172; Doe v. Smith, 8 Ad. & El. 255, • Winestein v. Ziglatski-Marks

35 E. C. L. 387; Tilford v. Flem- Co., 77 Conn. 404, 59 Atl. Rep. 496.
ing, 64 Pa. St. 300. s McCardell v. Williams, 19 R. I.

oaMcCardell v. Williams, 19 R. 701, 36 Atl. Rep. 719.

484 LAW OF LANDLORD AND TENANT,

agreement may recover a personal judgment for rent against
the heir who has thus attorned.®

§ 314. The necessity for the landlord's consent to the attorn-
ment. At the common law an attornment by the tenant with-
out the knowledge or consent of the landlord was void, and it
in no wise affected the right of the landlord against the tenant,
or his remedies to recover the rent or to enforce any covenant
binding upon the tenant. ^° This rule of the common law is
affirmed by statute in many of the states.^^ In some instances,
statutes have been enacted which dispense with the consent of
the landlord where the attornment is made to one who pur-
chases at a sale made under a judgment at law or a decree in
equity, or to a mortgagee after forfeiture.^^ The common law
doctrine of attornment is not enforced in Minnesota.^^ An at-
tornment without the consent of the landlord to one holding a
tax title is not valid, and the occupation of the tenant under a
lease from the owner of the tax title does not constitute adverse
possession against the landlord.^* Where, after an attornment
which is void because it was made without the consent of the
landlord, there is no disclaimer of the landlord's title by the
tenant brought to the knowledge of his landlord or any act of
exclusive ownership by the tenant calculated to apprise him
that the tenant is holding adversely for the benefit of a third
person, the possession of the tenant is not adverse to that of
the true owner.^'^ A tenant who has attorned to a purchaser on
an execution sale when the execution deed was found to be void,
may state the claim of his original landlord in an action

» Mackin v. Haven, 187 111. 480, 12 O'Donnell v. Mclntyre, 118 N.

58 N. E. Rep. 448, affirming 88 III. Y. 156, 23 N. E. Rep. 455, holding

App. 434. that such a statute does not apply

10 Perkins v. Potts, 52 Neb. 110, to an attornment to one who

71 N. W. Rep. 1017; O'Donnell v. claims under a tax deed.

Mclntyre, 118 N. Y. 156, 23 N. E. i3 Jones v. Rigby, 41 Minn. 530,

Rep. 455; Benoist v. Rothschild, 43 N. W. Rep. 390.

145 Mo. 399, 46 S. W. Rep. 1081, i* Kipley v. Sculley, 185 111. 52,

McCartney v. Auer, 50 Mo. 395; 57 N. E. Rep. 187; O'Donnell v.

Dausch V. Crane, 109 Mo. 323, 19 Mclntyre, 118 N. Y. 156, 37 Hun,

S. W. Rep. 61; Pierce v. Rollins, 623.

60 Mo. App. 497. "'•■' Benoist v. Rothschild, 145 Mo.

iiRatcliff V. Bollfont Iron 397, 46 S. W. Rep. 1081.
Works, 87 Ky. 559, 10 S. W. Rep.
365.

ATTORNMENT OP THE TENANT. 485

"brought by the purchaser to recover rent under the lease. If
he shall show that the deed is void, the action to recover rent
must be dismissed.^®

§ 315. The effect of the statute of Anne upon attornment.
The act of attornment by the tenant to his new lord was of a
jjublic nature being customarily performed by some symbolic
ceremony m the presence of the tenants upon the estate of the
former landlord. The general effect of this ceremony was to
express a renunciation of the tenant's allegiance and service
to the former landlord and his proffer of service and allegiance
to him to whom the former owner had conveyed the reversion.
This at first and for many centuries was a voluntary act upon
the part of the tenant, it being according to feudal principles,
an absolute right of a terre tenant to select his lord on account
of the frequent personal services he was bound to render him,
and the protection and aid of a personal and feudal character
which the landlord under the feudal system was obligated to
render to his tenants when called upon by them to do so. On
account of reasons arising out of the principles of the feudal
tenure of land, it was not regarded as just and fair to the ten-
ant who has entered in relations with a superior lord of his
own choosing, to have his duties and obligations to this .superior
transferred to another who might be a stranger, and indeed an
enemy, without the consent of the tenant. Hence, unless the
tenant formally attorned to the party to whom the reversion
had been transferred, he owed him no duty either to pay rent,
to render him any service specified in the lease or by the law
of the land, or to perform any of the covenants of the lease
whatever. This rule of the ancient law formed a most serious
impediment to the free commerce of land, and, for that reason,
after the abrogation of the rules of the feudal system had taken
place, it was abolished by statute in England in the time of
Anne.^^ In some of the states the abrogation of the common law

16 Ross V. Kernan, 31 Hun, 164. W. R. 563. As to similar statutes

17 Doe d. Agar v. Brown, 2 El. in America, see McDonald v. Han-
& Bl. 331, 22 L. J. Q. B. 432; Vig- Ion, 79 Cal. 442, 443, 21 Pac. Rep.
ers V. St. Paul's (Dean & Chapter), 861 (Civil Code, § 1111) ; Coker v.
14 Q. B. 909, 19 L. J. Q. B. 84, 14 Pearsall, 6 Ala. 542, 543; Otis v.
Jur. 1017, Ex. Ch. Williams v. McMillan, 70 Ala. 46, 53; Doe v.
Hayward, 1 El. & El. 1040, 28 L. J. Clayton, 73 Ala. 359, 361; Hous-
Q. B. 374, 5 Jur. (N. S.) 1417, 7 ton v. Farriss, 71 Ala. 570; Drey-

486 LAW OP LANDLORD AND TENANT.

requirement of an attornment is the result rather of implication
arising from the statute than from an express enactment. Thus
it has been held that a statute giving- grantees, assignees, heirs
and representatives of lessors the same remedies or rights against
tenants as the lessors by implication dispenses with an attorn-
ment.^* Where an attornment is no longer necessary a privity
of estate, but not of contract, arises between the grantee of the
lessor and the lessee as soon as the grantee acquires the title,
and the former can thereafter maintain an action of debt, but
not upon a covenant, against the lessee under a lease which was
outstanding where the covenant does not expressly run with
the land.^^

§ 316. The tenant's attorn to a mortgagee or purchaser
at foreclosure. The act of a tenant whose lease is subsequent
to the mortgage in paying rent to the mortgagee upon his
entry on a breach of condition is an attornment by the tenant.
As soon as the mortgagee has received the rent from a tenant in
possession, the relation of landlord and tenant exists between
the parties though prior to that the mortgagee might treat the
tenant as a trespasser.^^ The mortgagor having conveyed his
whole interest in the premises to the mortgagee, to which his
subsequent lease is, of course, subordinate, forfeits the whole

fus V. Hirt, 82 Cal. 621, 23 Pac. tornment. Duke v. Compton, 49

Rep. 193; Baldwin v. Walker, 21 Mo. App. 304.

Conn. 168; Lindley v. Dakin, 13 is Howland v. White, 48 111.
Ind. 388, 389; Barnes v. Northern App. 236 (Rev. St. c. 80, § 14);
Trust Co., 169 111. 112, 48 N. E. Thomasson v. Wilson, 146 111. 384,
Rep. 31; Foster v. Morris, 3 A. K. 34 N. E. Rep. 432; Barnes v. North-
Marsh. (Ky.) 611; Funk's Lessee ern Trust Co., 169 111. 112, 48 N.
V. Kincaid, 5 Md. 404; Keay v. E. Rep. 31, affirming 66 111. App.
Goodwin, 16 Mass. 1; Farley v. 282, and construing Rev. St. c. SO,
Thompson, 15 Mass. 18; Burden v. § 14 (2 Starr & C. Ann. St. (2d
Thayer, 3 Pick. (Mass.) 76; Jones ed.) p. 1497; Bordereaux v. Wal-
V. Rigby, 41 Minn. 530, 43 N. W. ker, 85 111. App. 86.
Rep. 390; Hendrickson v. Beeson, i& State v. Idler, 54 N. J. Law,
21 Neb. 61, 63, 31 N. W. Rep. 266; 467, 24 Atl. Rep. 554.
Gribble v. Toms, 71 N. J. Law, 20 Gartside v. Outley, 58 111. 210,
338, 57 Atl. Rep. 144, 14&; Tilford 215. 11 Am. Rep. 59; Hogsett v.
V. Fleming, 64 Pa. St. 301. But Ellis, 17 Mich. 351; Kimball v.
see contra where it was held that Lockwood, 6 R. I. 138, 139; Mason
a purchaser cannot recover rent v. Gray, 36 Vt. 308, 312; Evans v.
and possession as a landlord un- Elliott, 9 Ad. & El. 159.
less he avers and proves an at-

ATTORNMENT OF THE TENANT. 487

title at law by default in payins: the debt for Avhicli the mort-
gage is security, and unless forbidden by statute, as is the case
in some states, the tenant may at once attorn to the mortgagee
without disloyalty to his landlord ^s he thereby only recognizes
a title which his landlord has created.'^ The payment of rent
by the tenant to the mortgagee with or without a promise to
pay that which subsequently accrues is usually a sufficient at-
tornment and the tenant is thereafter liable for the rent to the
mortgagee or his grantee alone and cannot be compelled to pay
it to the mortgagor.-- Not only may a tenant attorn to a mort-
gagee, but in some of the states it is by statute expressly pro-
vided that he may, and in some that he must attorn to a pur-
chaser of an equity of redemption on a sale in foreclosure.^^
The purpose of these statutes is first to secure to the purchaser
at foreclosure, the rents and profits of the property he has
bought without the cost and annoyance of an action in eject-
ment and second, to enable the tenant to continue his possession
by attorning to the new owner. They ought therefore, to be
so construed as to carry out this purpose. An attoi:nment of a
tenant to a mortgagee, before the expiration of the mortgagor's
right to redeem after foreclosure, is invalid by statute in many
of the states.^* A tenant may attorn to a grantee under a deed
made on a conveyance at a tax sale. If the deed is regular on
its face, his attornment is good though the conveyance is void-

21 Kimball v. Lockwood, 6 R. I. closure may legally attorn to a
138, 139 ; Jones v. Clark. 20 Johns. purchaser in a subsequent sale at
(N. Y.) 51; Evans v. Elliot, 9 Ad. foreclosure of a prior mortgage.
& El. 159, also holding that an Freeman v. Moffitt, 119 Mo. 280,
attornment does not relate back 25 S. W. Rep. 87. The statutes re-
to a prior notice to quit given by fer only to mortgages given by the
a mortgagee to the tenant, but landlord or one claiming under
creates a privity and right to col- him. Pierce v. Rollins, 1 Mo. App.
lect rent in the mortgagee only Rep. 217.

from the date it is actually made. s-* Mills v. Hamilton, 49 Iowa,

22 Kimball v. Lockwood, 6 R. I. 105; Mills v. Heaton, 52 Iowa, 215,
138, 140. 217. Contra, Tallman v. Ely, 6

23 Freeman v. Moffitt. 119 Mo. Wis. 244; Gillett v. Eaton, 6 Wis.
280. 295. 25 S. W. Rep. 87; Pierce 244; Hennessy v. Farrell, 20 Wis.
v. Rollins, 1 Mo. App. Rep. 217; 42. After such attornment a for-
Conley v. Schiller, 24 N. Y. Supp. mer owner who enters is guilty of
473; Ratcliff v. Belfont Iron Works forcible entry and detainer. Hol-
Co.,' 87 Ky. 559, 10 S. W. Rep. 36&. den B. & L. Assn v. Wann, 43 Mo.
A lessee of a purchaser in fore- App. 640.

488 • LAW OP LANDLORD AND TENANT.

able on extrinsic evidence.-^ The tenant may always sliow as
ag-ainst his landlord that a third person has obtained a title
i:!aramonnt to the landlord at a tax sale during the term and
that he has attorned to such third person when the latter had
demanded possession of the premises under his tax deed.^'

§ 317. The statutory rights of the grantee of the reversion.
Because of the rule of the conunon law that a chose in action
was not assignable, the grantee of the reversion could not main-
tain an action against the lessee on a covenant of the lease,
though the covenant might run with the land. At common law
no one except a person who was a party or a privy to a covenant
could sue upon it. The grantor and his heirs, or personal repre-
sentatives could alone take advantage of a breach of covenant
by a lessee.-'^ This rule so far as it related to landlords and ten-
ants was furthermore based upon that principle or provision of
the feudal law which prevented a lord from transferring his
lordship without the consent of his vassal, it being considered
upon feudal reasons that a vassal or tenant holding under a
lord had a vested right to his protection of which he could not
be deprived without his consent. This consent was indispensable
and was evidenced by the attornment of the tenant by which
the tenant admitted he was holding as tenant under the new
landlord. The rule was applicable to all leases, whether for life
or for years, so that where one purchased the fee with a lease
outstanding and the lessee refused to attorn, the conveyance was
practically void as to him inasmuch as he could derive no ad-
vantage from the covenant to pay rent or from any other cove-
nant in the lease. This very strict restraint upon the alienation
of land was removed by various English statutes as the neces-

a.". Sheaff v. Husted, 60 Kan. a mortgage given by his landlord,

770, 57 Pac. Rep. 976. and on the proper exposition of

20 Jenkinson v. Winans, 109 the deed, he must do so. This
Mich. 524, 67 N. W. Rep. 549. The right of the purchaser is not re-
tenant must attorn to a pur- stricted to the case where the for-
chaser at the foreclosure sale or mer landlord consents. Frank v.
he may be removed by a writ of Nichols, 6 Mo, App. 72, distin-
assistance, though his lease be guished. Holden B. & L. Ass'n v.
prior in date to a mortgage. Lov- Wann, 43 Mo. App. 640.
ett V. German Reformed Church, 27 Co. Litt. 215a; Milnes v.
9 How. Pr. (N. Y.) 220. The ten- Branch. 5 M. & S. 411; Masury v.
ant is authorized to attorn to a SoutJiworth, 9 Ohio St. 340, 346.
purchaser under the foreclosure of

ATTORNMENT OP THE TENANT. 489

sity for transferrin <j^ land became greater, the most important
of which was that of 32 Henry VIII, c. 34, Avhich gave in
general to the assignee of the reversion the same rights against
the lessee that the lessor had upon all covenants running with
the land, while at the same time it gave the tenant the same
remedies on such covenants against the grantee of the reversion
that he would have had against the grantor. By this statute
the privity of contract, together with privity of estate, was
transferred to the assignee of the reversion who was thereafter,
as respects a lessee, in the same position as the lessor was be-
fore his conveyance of the reversion.-^ Hence, the grantee of
a lessor is entitled under this statute to sue the lessee on all the
covenants in the lease. This rule applies where a mortgagor
makes a lease and then assigns his equity of redemption.-^ But
of course, the assignee of a reversion is not entitled under the
statute to rent which becomes due prior to the assignment.^" And
the statute was construed to include only leases under seal.^^ The
English statute in various forms has been re-enacted in almost all
of the American commonwealths.'- In construing these statutes
which give the grantee of the lessor the remedies of the lessor, it
has been held that a right to enforce a forfeiture for an event
which occurred prior to the transfer of the reversion does not

28 Scaltock V. Heuston, 1 L. R. 603 ; Standen v. Christmas, 10 Q.
C. P. Div. 106; Masury v. South- B. 135; Smith v. Egginton, 43 L.
worth, 9 Ohio St. 340. 346; Shelby J. C. P. 140, L. R. 9 C. P. 145, 30
V. Hearne, 6 Serg. (Tenn.) 512. L. T. 521.

29 Cuthberston v. Irving, 4 H. 32 Woodbury v. Butler, 67 N. H.
& N. 742, 28 L. J. Ex. 306, 5 Jur. 545, 38 Atl. Rep. 379 (construing
(N. S.) 740, affirmed 6 H. & N. Pub. St. c. 246, sec. 22); Springer
135, 29 L. J. Ex. 485, 6 Jur. (N. S.) V. Chicago Real Estate Loan &
1211, 3 L. T. 335. A right to ter- Trust Co., 202 111. 17, 66 N. E. Rep.
minate the lease on notice to the 850, affirming 102 111. App. 294
tenant with a stipulation that all (construing 2 Starr & C. Ann. St.
covenants in the lease shall be 1896, p. 2513); Alworth v. Gor-
binding on the "legal representa- don, 81 Minn. 445, 84 N. W. Rep.
tives" of the parties confers the 454; Hannigan v. IngersoU. 20
right to terminate the lease on no- Hun (N. Y.) 316; Zink v. Bohn,
tice upon the landlord's grantee. 3 N. Y. Supp. 4; Wright v. Hardy
Adler V. Lowenstein, 102 N. Y. (Miss. 1899), 24 So. Rep. 697
Supp. 492. (Ann. Code, § 2539, which applies

30 Flight V. Bentley, 7 Sim. 149, to estates for life or years only,
4 L. J. Ch. 262. not to estates in fee).

31 Brydges v. Lewis, 3 Q. B.

490 '■' LAW OF LANDLORD AND TENANT.

pass to the grantee of the reversion.^^ But a forfeiture of the
lease occurring' after the conveyance of the reversion may be en-
forced by the grantee to the same extent as it could have been en-
forced by the lessor had he continued in possession.^* And the
right to possession upon a forfeiture cannot be defeated by a
surrender of the lease by the original lessee to the grantor.^^
The grantee of a part of a reversion of property which is sub-
ject to an outstanding lease is the assignee of the reversion with-
in the statute, 32 Henry VIII, c. 84, and he may under that stat-
ute avail himself of a breach of a condition, but the grantee of the
whole reversion in a part of the property is not such an as-
signee, for where the statute speaks of "conferring rights upon
grantees and assignees of the reversion" its benefits belong to
one who takes an estate for years in the reversion, as well as
to one who takes the whole of it. Thus, where a lessor demised
three years of his term of twenty-one years to one person and
subsequently thereto demised the balance less one day, to an-
other, it was held that the second under-tenant was an assignee
under the statute.^*' The assignee of a reversion may lose his
right to enforce a condition of re-entry by his delay in exercising
it.^^ It may be noted, however, that the operation of these stat-
utes in placing the assignee of the reversion in the shoes of the
assignor and lessor, is eontined to those covenants which are
contained in the lease and which run with the land. The as-
signee of the reversion is not subrogated to any rights of the
reversioner which are personal to him and collateral to the lease.
The remedies of the grantee are those only which the grantor
had under the lease and do not enable the grantee to take ad-
vantage of a guarantee of the rent signed by a third person and
which is contained in a separate instruments^

53 Small V. Clark, 97 Me. 304, 54 Roberts v. McPherson, 63 N. J.
Atl. Rep. 758; Fenn v. Smart, 12 Law, 352, 43 Atl. Rpp. 1098.
East, 444; Bennett v. Herring, 3 3c page v. Esty, 54 Me. 319.

C. B. (N. S.) 370; Trask v. se Co. Litt. 215a; Wright v. Bur-
Wheeler, 7 Allen (Mass.) 109; roughes, 3 C. B. 685, 4 D. & L. 438,
Rice V. Stone, 1 Allen (Mass.) 16 U J. C. P. 6, 12 Jur. 968.
566. 37 Gibson v. Doey, 2 H. & N. 615,

54 Island Coal Co. v. Combs, 152 27 L. J. Ex. 37, 6 W. R. 107.
Ind. 379, 53 N. E. Rep. 452; Met- as Harbeck v. Sylvester, 13
ropolitan Land Co. v. Manning Wend. (N. Y.) 608. But see
(Mo. App.), 71 S. W. Rep. 696; Allen v. Culver, 3 Denio (N. Y.>

ATTORNMENT OF THE TENANT.

491

§ 318. The grantees right to collect rents. In modern times
in both England and America, by virtue of the statute 32 Henry
VIII, c. 34 and similar statutes, a conveyance of the reversion
by the owner carries with it, unless expressly reserved by the
grantor, the right to collect and sue for all rents which may
subsequently accrue and become due under a covenant by a
lessee to pay rent to the owner of the preniises.^^ A conveyance

284. "It follows from these prin-
ciples that a sale by a lessor of
real estate during an unexpired
leasehold term, under which a
tenant is holding, does not of it-
self abrogate the lease, determine
the leasehold estate, or authorize
the landlord or tenant to treat the
lease as at an end. Its only effect
is to substitute the vendee of the
reversion to all the rights of the
original lessor, and to transfer to
such vendee the fealty and duty
to pay rent under the lease, not
then matured, which, by the terms
of the lease, the tenant had bound
himself to pay to the original' les-
sor. The vendee then becomes
the landlord by operation of law,
whose title the tenant, so long as
he remains undisturbed in his
possession, may not dispute; and
the tenant becomes tenant of the
vendee of the reversion, whose
right to the possession for the un-
expired term the landlord may
not gainsay so long as the tenant
complies with the terms of the
lease. And the same result fol-
lows when the sale is made under
a mortgage or trust deed, junior
to the lease, or under execution,
or other similar sale the lien of
which is junior to the lease." By
the court in Otis v. McMillan, 70
Ala. 46, on pp. 5o and 54.

S9 Hand v. Liles, 56 Ala. 143;
Steed V. Hinson. 76 Ala. 298; Wise
V. Falkner, 51 Ala. 359; Perker-

son V. Snodgrass, 85 Ala. 137, 140,
4 So. Rep. 752; Otis v. McMillan,
70 Ala. 46, 52; English v. Key, 39
Ala. 113; Pope v. Harkins, 16 Ala.
321; Gibons v. Dillingham, 10
Ark. 9, 50 Am. Dec. 233; Mahoney
V. Alirso. 51 Cal. 440; Clark v.
Cobb. 121 Cal. 595, 54 Pac. Rep.
74, 77; Peck v. Northrop, 17 Conn.
217; Winestein v. Ziglatzki, 77
Conn. 404, 59 Atl. Rep. 496; Ken-
nedy V. Kennedy, 66 111. 190, 193;
Neill Y. Chessen, 15 111. App. 266;
Disselharst v. Cadogan, 21 111.
App. 179, 180; Crosby v. Loop, 13
111. 625, 627; Sampson v. Grimes,
7 Black. (Ind.) 176; Page v. Lash-
ley, 15 Ind. 152; Carley v. Lewis,
24 Ind. 23; Indianapolis National
Gas Co. V. Pierce, 25 Ind. App.
116, 56 N. E. Rep. 137; Welch v.
Harton, 73 Iowa, 250, 34 N. E.
Rep. 840; Van Wagner v. Van
Nostrand, 19 Iowa, 422, 428;
Breeding v. Taylor, 13 B. Mon.
(Ky.) 481; Winslow v. Rand, 29
Me. 362, 365; Gale v. Edwards, 52
Me. 363, 365; Montague v. Gay, 17
Mass. 439, 440; Burden v. Thayer,
3 Met. (Mass.) 76, 80, 37 Am. Dec.
117; Beal v. Boston Car Spring
Co.. 125 Mass. 157, 28 Am. Rep.
216; Burton v. Richardson, 10
Allen (Mass.) 260; Grundin v.
Carter. 99 Mass. 15; Stevenson t.
Hancock, 72 Mo. 612, 615; Page
V. Culver, 55 Mo. App. 606; Hend-
rickson v. Beason. 21 Neb. 61, 63,
31 N. W. Rep. 206; Allen v. Hall,

492 LAW OF LANDLORD AND TENANT.

by operation of law or under a trust deed or power of sale in
a mortgage or by a master or sheriff under a decree or execu-
tion that is valid against the lessor, will be as efficacious as a
deed from him directly. Whatever unqualifiedly passes his re-
version will pass rent thereafter accruing.*" Under the modem
statutes the grantee of the reversion is entitled to collect subse-
quently accruing rent from a tenant in possession though the
tenant may not have attorned to him.*^ For the fact of an at-
tornment in modem times at least, has lost its ancient impor-
tance. Thus, though the tenant has not attorned to the pur-
chaser from the lessor, the latter cannot recover as against the
tenant for the use and occupation of the premises by the tenant
after the title has passed to the grantee of the lessor.*- Under
the modern statutes, it is settled that the grantee may sue the
tenant in his own name for rent accruing subsequently to the
conveyance to him.*" And it has also been held that he may
sue in his own name upon collateral security for rent.** In
fact, under the modern statute, the rights of the grantee of the
reversion after the conveyance to him of the fee are substanti-
ally the same as the rights of the grantor so far as the covenants
which run with the land are concerned. So, the grantee of land

66 Neb. 84, 92 N. W. Rep. 171; 345, 36 N. W. Rep. 22, 23; Winter-
Van Wicklen v. Paulson, 14 Barb. field v. Strauss, 24 Wis. 394;
(N. Y.) 654; Pollock v. Cronise, Leonard v. Burgess, 16 Wis. 41,
12 How. Prac. (N. Y.) 363; Ruck- 43.

man v. Astor, 3 Edw. Ch. (N. Y.) 4o Disselharst v. Cadogan, 21 III.

373; Lewis v. Wilkins, 62 N. Car. App. 179, 180, also holding that a

303, 307; Kornegay v. Collier, 65 sale by an olficer appointed by the

N. Car. 69, 72; Rogers v. McKen- court under a decree in partition,

zie, 65 N. Car. 218; Jolly v. Bryan, subject to the tenant's rights, is

86 N. Car. 245; Wilcoxin v. Don- not a reservation of rent, and the

elly, 90 N. Car. 245; Lancashire v. purchaser is entitled to collect the

Mason, 75 N. Car. 455; West rents accruing after the sale.

Shore Mills Co. v. Edwards, 24 4i Tubb v. Fort, 58 Ala. 277;

Oreg. 475, 478, 33 Pac. Rep. 987; Wise v. Falkner, 51 Ala. 359.

Duff V Wilson, 69 Pa. St. 316; 42 Blake v. Grammer, 3 Fed. Cas.

Gibbs V. Ross, 2 Head (Tenn.) No. 1,496, 4 Cranch, C. C. 13.

437; Hearne v. Lewis, 78 Tex. 276, 43 Springer v. Chicago Real Es-

14 S. W. Rep. 572; Maxwell v. tate, etc., Co., 202 111. 17, 66 N. E.

Urban, 22 Tex. Civ. App. 565, 55 Rep. 850.

S. W. Rep. 1124; Shaw v. Partridge, 44 Allen v. Culver, 3 Den. (N.

17 Vt. 626; Evans v. Enloe, 70 Wis. Y.) 284.

ATTORNMENT OF THE TENANT. 493

may maintain an action against a tenant whom he found in pos-
session for damages to the land after the grant without an as-
signment of the cause of action by the grantor.*^ It has also
been held that the statutes are applicable to an assignment of a
contract of sale and of a bond for a deed. The vendee is en-
titled to the rent only from the date he takes title to the de-
mised premises, but if before that date he assigns his contract
his right to the subsequently accruing rent passes to the assignee
and the latter may enforce his rights against a tenant who is in
possession of the premises when he takes title. So, the assign-
ment of a bond for a deed which was made before rent had ac-
crued and which transfers in terms all the right, title and in-
terest of the assignor, carries with it rent which subsequently
accrues, but not rent which has accrued, imless an intent to
pass such rent be shown fairly.*^ The assignee of the bond
may sue the tenant of the assignor in his own name as soon as
notice of the assignment has been given to the tenant.*" The
statute of Henry YIII, c. 34, is by its terms confined to leases
which are under seal. Consequently a lessor may, even though he
has assigned his reversion, sue the lessee on his agreement to re-
pair a breach thereof happening subsequent to the assignment.**
Hence, it follows that where a lease is not under seal, the as-
signee of a reversion does not acquire the benefit of the statute,
and he cannot maintain an action against the tenant for a
breach of the latter 's covenant to repair.*'' Under the statute
the assignee of a reversion may generally enforce the tenant's
covenant to repair and may sue him in his own name for a
breach of the same.^° As he may also apparently enforce a for-

« Shinn v. Guyton & Herring- in the matter than the payee of a

ton Mule Co., 109 Mo. App. 557, promissory note after he has in-

563, 83 S. W. Rep. 1015. dorsed it." Lancashire v. Mason,

46 Van Driel v. Rosierz, 26 75 N. Car. 455, cited with ap-

lowa, 575. proval in Otis v. McMillan, 70 Ala,

*7 "It is familiar learning, that 46, 53.
fealty and rent are incident to the *« Bickford v. Parson, 5 C. B.

reversion, and passes with it; and 921, 17 L. J. C. P. 192, 12 Jur. 377.
by a grant of the reversion the ^a Standen v. Christmas, 10 Q.

assignee is substituted in place of B. 135, 16 L. J. Q. B. 265, 11 Jur.

the lessor, and the rent accruing 694.

thereafter is to be paid to him. so Martyn v. "Williams, 1 H. &

After the assignment the lessor N. 817, 26 L. J. Ex. 117, 5 W. R.

has no more interest or concern 351.

494 LAW OF LANDLORD AND TENANT.

feiture arising from a breach of a covenant to repair even where
lie has not given the tenant notice of the assignment.^^ For
this purpose an attornment is not necessary. And where a
tenant's covenant to repair is for the benefit of lessors who
hold as tenants in common, all the grantees of the several ten-
ants in common must join in the action to recover damages for
a breach of recoverment.^-

§ 319. The extent of the rights of the grantor after his con-
veyance. Usually a grantor cannot collect rent from his
former tenants which has accrued after his sale of the rever-
sion unless he has expressly reserved his right to do so. This he
will have to show for the contrary will be presumed. And a
grantor who, without having a legal right to do so, collects
rent which accrues after he has conveyed, will be liable to his
grantee in an action of assumpsit for money had and received
to the use of the grantee,^^ or the grantee may still maintain an
action of debt against the lessee.^* The lessor may, of course,
grant the reversion, reserving the rent to himself or to another.
The reservation of subsequently accruing rent need not be ex-
pressed in the deed of conveyance of the reversion. It may be
proved by other evidence either parol or written. If the reser-
vation of rent is contained in an instrument other than the deed
of conveyance, the instruments may be construed together in
order to arrive at the real intention of the parties.^^ At the
common law and before the statute of 32 Henry VIII. c. 34, the
grantor could have sued a lessee in debt for the rent which ac-
crued before the grant by reason of the estate created by the pos-
session of the tenant and the receipts of the profits by him. Since
the passage of that statute,^*^ the grantor may sue on the cove-
nants to pay rent contained in the existing lease.^^ He cannot
after the title has passed from him sue in assumpsit or for use

SI Bennett v. Herring, 3 C. B. 53 Van Wagner v. Van Nostrand.

(N. S.) 370, 6 W. R. 37; Scaltock 19 Iowa, 422, 428.

T. Harston, 45 L J. C. P. 125; 1 C4 winslow v. Rand, 29 Me. 362,

C. P. D. 106, 34 L. T. 130, 24 W. 365.

R. 431. ^'" Neill V. Chessen, 15 111. App.

G2 Thompson v. Hakewell, 19 C. 266, 267.

B. (N. S.) 713, 35 L. J. C. P. 18, oe Thursby v. Plant, 1 Saund.

11 Jur. (N. S.) 732, 13 L. T. 989, 240; Patten y. Deshon, 1 Gray

14 W. R. 11. (Mass.) 325, 327.

a- Crosby v. Loop, 13 111. 625.

ATTORNMENT OF THE TENANT. 495

and occnpation, unless the tenant has after the conveyance sur-
rendered the lease to him and made new aiTangements.'** Under
the modem statutes, the lessor by his assignment of the rever-
sion parts with his right to enter for every breach of condition
which may happen after the assignment. And the lessor who
fails to exercise his rights to forfeit the lease while he is the
owner of the reversion, cannot after he has parted with his re-
version re-enter upon the premises either for a past or present
forfeiture, unless he has been expressly given a right to do so,
or unless he acts with the consent and by the authority of the
new owner. Any other principle or rule of procedure would
result in great unfairness to the grantee of the reversion and
would be of no benefit to the grantor. The old principle that a
forfeiture of a breach of a condition can only be exercised by
the heirs of the person who created the condition has been
gradually narrowed and certainly has no operation to the
breach of the condition in a lease. If the lessor desires to take
advantage of a forfeiture occurring before he sells the property
he must do so before he parts with his title. To permit him to
do this after the grantee has acquired the title would be useless,
for, as against his grantee, he is estopped by his deed of convey-
ance and any title which he may acquire after he has given his
deed would not enure to his benefit but simply to the benefit of
his grantee. But the assignment by the lessor of his reversion
in one of two pieces of property included in a lease will be con-
fined in its operation to the one actually assigned and will not
destroy the right of the lessor to enter upon the other piece for
a breach of condition.^^ And finally and in conclusion, it should
be said that the right to collect rents due at the date of the sale,
or the right to recover for use and occupation prior to the sale,
does not pass to the grantee in the absence of an express agree-
ment to that effect. The debts created by this right belong to
the lessor, are choses in action and hence are personal prop-
erty.«°

58Marney v. Byrd, 11 Humph. v. Wise, 3 Watts (Pa.) 394; Perk-

(Tenn.) 95, 96. erson v. Snodgrass, 85 Ala. 137,

50 Hyde v. Warden, 47 L. J. Ex. 4 So. Rep. 732 ; Damren v. Power

121, 3 Ex. D. 72, 37 L. T. 567, 26 Co., 91 Me. 334, 40 Atl. Rep. 63;

W. R. 201. Kennedy v. Kennedy, 66 111. 190,

60 Burden v. Thayer, 3 Met. 193; Winckleberger v. Katzelbur-

(Mass.) 76; Bank of Pennsylvania ger, 77 Mo. App. 117; Peudill ▼.

496

LAW OF LANDLORD AND TENANT.

§ 320. The obligation of the grantee to tenants in possession.

A general grant of the reversion passesi all the leases to
which the property is subject, including the rents reserved;
but the right of the grantee is subject to all the equities or just
demands of the tenants or other incumbrance of which the
grantee had notice.®^ A grantee of the reversion which is sub-
ject to a lease made by the grantor is bound to take notice of
all the rights of a tenant in possession."^ A grantee of the re-
version who takes his conveyance subject to existing tenancies
will be presumed as to such tenants to be bound to perform all
covenants which run with the land. He will be presumed to
have ascertained the nature, extent, and terms of the leases
under which all tenants hold who are in possession when he re-
ceives the grant of the reversion in possession of the premises.
This is a presumption of law. The fact that he has actual
knowledge of the terms of the lease of any particular tenant
will not rebut this presumption as to the other tenants. If,

Ells, 67 Mich. 657, 35 N. W. Rep.
754; Van Driel v. Rosierz, 26
Iowa, 575, 577. It results from
these principles that a sale by a
lessor of real estate during an un-
expired leasehold term, under
which a tenant is holding, does
not of itself abrogate the lease,
determine the leasehold estate or
authorize the landlord or tenant
to treat the lease as at an end.
Its only effect is to substitute the
vendee of the reversion to all the
rights of the original lessor, and
to transfer to such vendee the
fealty and duty to pay rent under
the lease not then matured, which,
by the terms of the lease, the ten-
ant had bound himself to pay to
the original lessor. The vendee
then becomes the landlord by op-
eration of law, whose title the
tenant, so long as he remains un-
disturbed in the possession, may
not dispute; and the tenant be-
comes tenant of the vendee of the
reversion, whose right to the pos-

session for the unexpired term
the landlord may not gainsay so
long as the tenant complies with
the terms of the lease. By the
court in Otis v. McMillan, 70 Ala.
46, on p. 54.

61 Schoellkopf v. Coatsworth, 66
N. Y. Supp. 979, 55 App. Div.
331, affirmed in 166 N. Y. 77, 59
N. E. Rep. 710. See, also. Matter
of Coatsworth, 160 N. Y. 114, 54
N. E. Rep. 709, reversing 37 App.
Div. 295, 55 N. Y. Supp. 753.

«2 0tis V. McMillan, 70 Ala. 46;
Stone V. Snell (Neb. 1906), 109
N. W. Rep. 750; Friedlander v.
Ryder, 30 Neb. 783, 47 N. W. Rep.
83, 9 L. R. A. 700; McGlauflin v.
Holman, 1 Wash. St. 239, 24 Pac.
Rep. 239; Schulte v. Schering, 2
Wash. St. 127, 26 Pac. Rep. 78;
Bailie v. Rodway, 27 Wis. 172;
Maul V. Rider, 59 Pa. St. 167;
Hottenstein v. Lerch, 104 Pa. St.
454; Rowe v. Ream, 105 Pa. St.
543; Howell v. Denton (Tex. Civ.
App.), 68 S. W. Rep. 1002.

ATTORNMENT OP THE TENANT. 497

therefore, tlie p:rantce collects rent from a tenant whom he finds
in possession, he will be conclusively presumed to have affirmed
a voidable lease which that tenant holds.®^ A grantee who takes
lan(J under lease has been held bound by an agreement between
his grantor and the lessee that the latter should pay certain rents
due by the gi^antor which payments were to be applied to
the rent though the grantee was ignorant of such an agreement.®*
The mere possession or occupation of real property by a per-
son without any other fact is not notice to an intending pur-
chaser that the occupant is a lessee. . The possession is notice
that the occupant has some claim of title adverse to the grantor
and it is incumbent on the purchaser to ascertain the present
character and extent of the claim. He cannot safely assume he
is a tenant because formerly he had been one for his status may
have been changed by the agreement of the parties or by opera-
tion of law. The purchaser must inquire as to his present re-
lationship to the property and a knowledge of a prior lease
will not excuse the failure of the purchaser to inquire. The
lessor may have made a surrender of the lease, or he may have
entered into a contract with the owner to buy the property in
which case he is a vendee in possession with an equitable right
to enforce the specific performance of the contract. For, if a
tenant during his tenancy change his character by agreeing to
purchase the premises, his subsequent possession is notice of
his equitable title as purchaser.®^ Or the prior lease may have
been executed by fraud or duress and be voidable as to him, in
which event, though the lease be for years, he may turn out to
be merely a tenant at will. In all such cases, the purchaser
must diligently inquire as to the existing rights of the person
in possession for he may have some right of an equitable char-
es chesterman V. Gardner, 2 Jr. 249, 253; Taj'lor v. Hibbert, 2
Johns. Ch. (N. Y.) 29, 9 Am. Dec. Ves. Jr. 437; Hanbury v. Litch-
265; Lazarus v. Hellman, 11 Abb. field, 2 N. Y. & K. 629.
N. C. (N. Y.) 93; Anderson v. e* Hovey v. Walker, 90 Mich.

Brinser, 129 Pa. St. 376, 404, 18 527, 51 N. W. Rep. 678.
Atl. Rep. 520, 6 L. R. A. 205; es Daniels v. Davison, 16 Ves.

Rickert v. Snyder, 9 "Wend. (N. Jr. 249; Allen v. Anthony, 1 Mer.
Y.) 415; Beebe v. Coleman, 8 287; Anderson v. Brinser, 129 Pa.
Page (N. Y.) 392; Scott v. Galla- St. 376, 404, 18 Atl. Rep. 250,
gher, 14 S. & R. (Pa.) 333; Mc- 6 L. R. A. 205; Hottenstein v.
Mechan v. Griffing, 3 Pick. (Mass.) Lerch, 104 Pa. St. 454; Rowe v.
149; Daniels v. Davison, 16 Ves. Ream, 105 Pa. St. 543.

32

498 LAW OF LANDLORD AND TENANT,

acter which it would be utterly impossible for him to put in
record.*'^ A lessee who takes a lease of premises, a part of which
is leased to another, the second lease being made expressly sub-
ject to the rights of the prior lessee and who thereafter collects
rents from the prior lessee, is estopped to deny the right of such
prior lessee to a renewal under a cover and in his lease. The
collection of the rent is an acceptance and affirmance of the
prior lease and creates a presumption that the second leseee had
informed himself of its terms and contents.®^

§ 321. The notice to the tenant of the sale of the reversion.
It is always advisable that the grantee of the reversion should,
as soon as possible, give the tenant notice of the fact that he
has acquired title. This rule applies to the grantee who pur-
chases at a judicial sale as well as to one who purchases under a
contract with the owner. "Where the tenant has no knowledge of
the conveyance of the reversion and pays the grantor the rent
which accrues subsequent to the conveyance acting in good faith,
the grantee cannot recover the rent from him.**^ The grantee
ought therefore, as soon as possible to put his deed on record
and also notify all tenants who are in possession of the premises
at the date of the conveyance to him, that he has acquired the
title.^^ Whether the recording of the deed by the grantee alone
is sufficient notice to the tenant of the sale has been variously
determined. On the one hand, it has been held that the record-
ing of the deed of conveyance covering the demised premises by
the grantee is notice to the tenant in possession of the premises
that the grantee named in the deed has acquired a right to col-
lect subsequent rents. The courts have distinguished between
a sale of the land and an assignment of the rent which is to be-
come due, holding that while the former is a transfer of real
estate and it is entitled to be recorded the latter is an assign-
ment of a right of action of which actual notice must be given.'**
In the former case, the rents are a mere incident of the

08 Anderson v. Brinser, 129 Pa. eo Farley v. Thompson, 15 Mass.

St. 376, 404. 18 Atl. Rep. 520, 6 18; Fitchburg Cotton Mfg. Corp.

L. R. A. 205. V. Melven, 15 Mass. 26S; Indiana

87 Carre Hotel Co. v. Wells- Natural Gas & Oil Co. v. Lee, 34
Fargo Co., 128 Fed. Rep. 587, 590, Ind. App. 119, 72 N. E. Rep. 492.
63 C. C. A. 23. 70 Gray v. Rogers, 30 Mo. 258.

88 Sampson v. Grimes, 7 Blackf.
rind.) 173.

ATTORNMENT OF THE TENANT. 499

land which is assisned and a notice of the assiGfnment or con-
veyance of the land having been given to the world by the re-
cording of the deed, it will be presumed that the tenant knew of
the transfer.'^^ But the weak point in this argument is that the
record of the conveyance of the reversion is notice to such per-
sons only as take a conveyance subsequent in point of time to
the record. Of course, the record of the deed of the reversion
is subsequent to the lease of the land under which the tenant
enters so that this rule of notice should not apply to him. The
safest method is to give actual notice that the demised premises
have been sold by personally exhibiting the deed, or a certified
copy to the tenant or tenants in possession. The grantee of the
reversion should bj^ some proper method notify all the tenants
in possession of the premises of the fact that he has become the
owner. He is bound to inquire and seek for the names of the
tenants on the premises and the terms of their hiring. This he
should do by actual inquiry on the premises and not by relying
upon what the grantor tells him. If he neglects to use diligence
in so doing and whether he is ignorant or not, and he delays to
notify the tenant of the conveyance to him. he cannot collect
rent which has accrued subsequently thereto.'- So, a grantee
cannot recover rent from a tenant who has paid his rent in ad-
vance to his landlord before the date upon which it became due,
though the grantee takes his conveyance before the date upon
which it really accrues, and the tenant has no notice of the con-
veyance until after the time when the rent should have been
paid according to the terms of the lease. '^^ A grantee who neg-
lects to infonn himself of the relations existing between his gran-
tor and a tenant as to the payment of rent cannot recover rent
which has subsequently accrued but which has been paid in ad-
vance and before it became due by the tenant to the former
landlord. But after the grantee has by proper methods noti-
fied the tenant in possession of the premises, that the title has
passed to him, he has an absolute right as against such tenant
to recover subsequently accruing rents. A tenant who, after
a purchase of the reversion as shown him, his deed of convey-

71 Peck V. Northrop, 17 Conn. -■! Dreyfus v. Hirt, 82 Cal. 621,
217, 221. 23 Pac. Rep. 193.

72 Dreyfus v. Hirt, 82 Cal. 621, 23
Pac. Rep. 193.

500 LAW OP^ LANDLOED AND TENANT,

anee, pays subsequently accruing rents to the former owner,
does so at the risk of having to pay them again to the new land-
lord, for the conduct of the tenant under such circumstances,
whether it was the result of collusion with the former o'OTier or
not, is a fraud upon the purchaser of the reversion. When
the purchaser subsequently sues him for rent accruing since the
purchase, he cannot defend the action by alleging and proving
that he had paid the subsequently accruing rents to a former
landlord. The tenant in such a position is no better off than if
he has paid no rent at all.'^* Under the statute of 4 Anne, c.
16, s. 10, which provides that no tenant shall be prejudiced by
payment of rent to a grantor or by breach of any condition for
non-payment before notice shall be given him by the grantee, a
tenant who, having paid his rent in advance, receives notice
from a mortgagee to pay the rent to him will be liable to the
mortgagee for rent which accrues after the notice though the
notice itself did not state that the party giving it was a mort-
gagee. On the receipt of such a notice, it is the duty of the
tenant to seek information as to the character of the claimant
It is a general rule that the payment of rent before it is due is
rather in the nature of a loan to the landlord than a payment
of rent. When the rent becomes due it is converted into a pay-
ment of rent. If, in the meantime, rent having thus been paid
in advance, the lessor conveys or mortgages the property, the
payment in advance is not binding on the mortgagee unless he
fails to give notice and where he gives notice he may collect the
rent from the tenant which accrues after the date of the notice
though it may have been paid in advance to the original lessor.''^
§ 322. The effect of a sale of the reversion under a decree or
judgment. The sale of the estate of the lessor by the sheriff
under an execution, or by virtue of a decree of a court of equity,
does not put an end to a term created by a lease which was exe-
cuted prior to the date upon which the judgment or decree be-
came a lien upon the premises.'^" The purchaser at the execu-
tion sale or at the sale under the decree of the court, takes the

74 Sullivan v. Lueck, 105 Mo. C. P. 132, 26 L. T. 97, 20 W. R.

App. 199, 203, 79 S. W. Rep. 724. 367.

70 DeNicholLs v. Saunders, 22 L. to Smith v. Aude, 46 Mo. App.

T. 661, L. R. 5 C. P. 589; Cook v. 631, 634.
Guerra, 41 L. J. C. P. 89, L. R. 7

ATTORX-MENT OF THE TENANT. 501

property sold subject to all leases wliich are prior to the lien of
the judgment or mortgage, and subject to all the rights of ten-
ants claiming under such leases. The extinguishment of the les-
sor's title by the sale under the decree or execution does not
in any way effect the rights of tenants or render void the lease
as between the tenant and the purchaser at the judicial sale.
The sale operates merely as a transfer of the lessor's title under
the lease to the purchaser. The purchaser may thereafter ex-
]iibit his deed to the tenant and he may demand of the tenant
that the tenant attorn to him and pay him all rent subsequently
accruing and if the tenant refuses to do this, the purchaser may
oust him.'''^ The foreclosure of the mortgage and the sale under
foreclosure or a sale under an execution on a judgment where
the lien of the mortgage or judgment is prior to the execution,
of the lease, puts an end to the term and exempts the tenant
from all liability to the mortgagor or the execution creditor,'*
for rent accruing subsequent to the sale. But the purchaser at
the sale under the foreclosure or under the execution may affirm
a lease which is subsequent and subordinate to the mortgage or
and require rents to be paid to him when he becomes the owner.'''

■^7 Smith. V. Aude, 46 Mo. App. Oakes v. Aldridge, 46 Mo. App.

631, 634. 11.

78 Burr V. Stenton, 52 Barb. (N. fy Fitzgerald v. Beebe, 7 Ark.

Y.) 377, affirmed in 43 N. Y. 462; 310.

CHAPTER XV.

THE NATURE AND INCIDENTS OF KENT.

o23. Rent. Definition and general characteristics.

321. Various kinds of rent distinguished.

325. Whether rent may be reserved out of personal property.

326. The payment of rent as evidence of tenancy.

327. The certainty of rent.

328. Rent to become due on the happening of some future event.

329. Rent payable in services.

330. Rent payable in specific articles.

331. The express covenant to pay rent.

332. A covenant to pay rent may be implied.

333. When rent is due.

334. Rent which is made payable in advance.

335. The place for the payment of the rent.

336. To whom rent should be paid.

337. Rent made payable to persons other than the landlord.

338. Rent payable in instalments.

339. The tender of the rent by the lessee.

340. Apportionment of rent between successive landlords.

841. Apportionment among the several assignees of the lessor.

342. Apportionment among the assignees of the lessee.

343. The liability of testamentary trustees for rent.

344. The payment of rent by an under-tenant to the original lessor.

345. Payment of rent by note, check or draft.

346. Receipts for rent. When conclusive and presumption of pay-

ment therefrom.

347. The application of rental payments.

348. The necessity of a demand for the payment of rent.

349. The reduction of the rent by the landlord during the tenn.

350. Increase of rent on re-hiring or during the term.

351. The jurisdiction of the courts in an action to recover rent.

352. The form and nature of the lessor's remedy to recover rent.

353. Recovery by the landlord of rent where the tenant has never

taken possession.

354. Joinder of cause of action for rent.

355. Recoupment, counterclaims and set off, by a lessee in an ac-

tion to recover the rent.

356. Notice to produce the lease in an action to collect rent.

357. Payment of rent during occupation. The meaning of the word

"occupy."

NATURE AND INCIDENTS OF KENT.

503

§ 3o8. The appraisal of the rent on the renewal of the lease.

359. The manner of the appraisal.

360. The result of a failure to fix the rent.

361. The power of the court to make or to review an appraisal of

rent.

362. The basis of the action for use and occupation.
3G3. The title of the landlord.

364. The occupation must be proved.

365. Against whom action for use and occupation can be maintained.

366. Parol evidence to prove use and occupation.

367. Defenses in an action for use and occupation.

§ 323. Rent — Definition and general characteristics. Eent
may be concisely defined as a right to a compensation, certain or
ascertainable, either in money, labor, provisions or other chat-
tels, issuing and being paid out of lands and tenements due to
their owner for their use.^ In the first place, rent, considered

1 Stephens v. Reynolds, 6 N. Y.
454; Wegner v. Lubenow, 12 N.
D. 95, 95 N. W. Rep. 442, 444;
Parsell v. Stryker, 41 N. Y. 480;
West Shore Mills Co. v. Edwards,
24 Oreg. 475, 477, 33 Pac. Rep. 987.
Other definitions are here given.
A rent is a compensation paid for
the use of land. It need not be
in money. Any chattels or prod-
ucts of the soil serve the pur-
pose equally' as well. Clarke v.
Cobb, 121 Cal. 595, 600, 54 Pac.
Rep. 74; Bloodworth v. Stevens,
51 Miss. 475, 480. It is the com-
pensation, either in money, pro-
visions, chattels or labor, which
is received by the owner of the
soil, or the person entitled to the
possession of the premises leased,
for the use and occupation thereof,
Fisk V. Brayman, 21 R. I. 195, 42
Atl. Rep. 878, 880. See, also, to
same effect, Rummel v. New York,
L. E. & W. Ry. Co., 9 N. Y. Supp.
404, 407; Tharn v. De Breteuil, 83
N. Y. Supp. 849, 856, 86 App. Div.
405; Gugel v. Isaacs, 21 App. Div.
503, 506, 48 N. Y. Supp. 594. "Rent

is that which is to be paid for the
use of land, whether in money,
labor or other thing agreed upon.
It is not due until the year is out
when the renting is by the year,
nor in arrears until after it is due.
If not in arrears it passes with
the sale of the reversion, without
regard to the time of the year it
was made, unless there has been
some stipulation to the contrary."
Hudson V. Fuller (Tenn.), 35 S.
W. Rep. .575, 576. The definition
of rent which can constitute a
is "a certain profit issuing yearly
out of lands and tenements cor-
poreal," and includes every species
or rent which can constitute a
debt, without regard to the na-
ture of the contract under which
it is reserved. It is equally rent
whether reserved on a lease under
seal or by parol." Chappell v.
Brown, 1 Bailey (S. Car.) 528, 529.
"A rent is said to be a sum of
money or other consideration issu-
ing yearly out of lands or tene-
ments. Blackstone defines 'rent'
or 'redditus' as a compensation or

504. LAW OF LANDLORD AND TENANT.

as a compensation for the use of land, is not the money, goods
or service which the tenant renders to the landlord, but it is
the right wliich is in the landlord to the same. In its original
meaning, rent was something more than a mere right to sue for
the value of the compensation when due. It was, and still is, to
a certain extent, the right to distrain, i. e., take out of the in-
come or profits of the property, compensation or return for its
use.- The money or other articles of value which the rent is the
right to receive, are sometimes incorrectly spoken of as being
the rent itself. While the distinction is a rather minute one, yet
it is important and should be borne in mind in order to secure
a clear and reasonable understanding of what rent is. For the
right to receive rent is ordinarily a chattel real while the things
which consitute visible evidence of the enforcement of the right
are always personal property. In the next place, rent is a
right to receive a compensation which must be either certain in
itself or which is capable of being made certain. This rule ap-
plies whether the rent is payable in money, services or in other
things of value.^ And it must also be something which is ren-
dered or delivered to the owner out of the profits of the land
an'd not out of the land itself as it existed before the rent was
created. Thus, the reservation in the lease of a portion of the
crops, or of the timber which is growing on the land at the date
of its execution, is not rent. An agreement by a tenant to, de-
liver to the landlord a certain portion of the crops to be raised
on the land by the tenant is rent. And in view of the fact that
rent must be certain in its character an agreement by the ten-
ant to deliver goods^ render services or to pay money without
the amount or value being fixed, is not an agreement to pay rent
or a reservation of rent; nor can it be enforced against the

return, it being in the nature of of being reduced to a certaintj'."

an acknowledgment given for the Wegner v. Lubenow, 12 N. D. 95,

possession of some corporeal in- 95 N. W. Rep. 442, 445. See, also,

heritance; and it is defined to be a Peck v. Northrop, 17 Conn. 217.
yearly profit issuing out of lands. 2 Van Rensselear v. Read, 26 N.

It must be a profit, but it is not Y. 558, 564; Pollock v. Farmers' L.

necessary that it should be in & T. Co., 157 U. S. 429, 580, 158 U.

money; for spurs, capons, horses, S. 601.

corn, and other matters are fre- 3 Keneage v. Elliot, 9 Watts

quently rendered for rent. Thia (Pa.) 258; Cornell v. Lamb, 2 Cow.

profit must be certain, or capable (N. Y.) 652.

NATURE AND INCIDENTS OF RENT. 505

tenant.* Rents are distinguishable from annuities by the fol-
lowing characteristics: A rent is payable out of the income of
land. That is to say, a rent when it is directed to be paid to a
third part}^ as a rent must necessarily be paid out of the income
and profits of lands and tenements. Annuities like rents are
certain in their amounts and are payable at fixed periods, but
their pajTnent is charged upon persons who are to make them
and not upon any piece of property. It may be said, however, in
this connection as will be subsequently explained at length, that
the theory that rent was always payable out of lauds and tene-
ments ha,s been rather extensively modified in modern times.
The common law authorities adhere closely to the principle that
rent is payable only out of the profits of real property because
there could be no distress unless there was a rent. And the
courts were not inclined to extend the remedy by distress to the
hiring of chattels.^ And besides this there was the considera-
tion that, inasmuch as rent and a distress always went to-
gether, the common law courts, recognizing their inability to
enforce a distress in the case of the hiring of a chattel the
use of which perhaps produced no visible or tangible results
as would be the case where land was rented, refused to recog-
nize "rent" as a proper word to use in connection with the
hiring of personal chattels. And while in theory perhaps, most
of the modern cases still insist that rent must issue out of the
income of land, yet, in practice, rent is reserved for the use
of all sorts of interests in both real and personal property, in-
cluding articles of personal property such as furniture and
other utensils of domestic use which are supplied to the ten-
ants of furnished apartments.* Calling the compensation for

4 Walsh V. Lonsdale, L. R. 21 Ch. e Eastman v. Anderson. 119 Mass.
Div. 9; Smith v. Fyler, 2 Hill (N. 226; Mickle v. Miles, 31 Pa. St
Y.) 648; Commonwealth v. Cont- 20; Vetter's Appeal, 99 Pa. St. 52;
ner, 18 Pa. St. 439, 447; Ocean Newman v. Anderson, 5 Bos. & P.
Grove Camp Meeting Ass'n v. San- 224, 5 Co. 116b; Gilberts' Rents,
ders, 67 N. J. L. 1, 50 Atl. Rep. 187. "By the ancient writers it
449; Cross v. Tome, 14 Md. 247; is said every rent must be re-
McFarlane v. Williams, 107 111. 33; served out of lands and tenements
Butcher v. Culver, 24 Minn. 584; which are manurable and upon
Co. Litt. 96a. which the lessor may distrain. It

5 Co. Litt. 213; 2 Black. Comm. may be reserved out of a remain-
p. 42; 3 Kent's Comm. p. 460. der or reversion or a conveyance

506 LAW OF LANDLORD AND TENANT.

the enjayment of the demised premises by any other name than
rent does not deprive it of its character as such. Thus, where
the Compensation is styled an assessment in the lease o£
camp meetinf? grounds and its precise amount is not to exceed
a stated maximum to be fixed annually by the lessor, it is still
rent within the statute.'^

§ 324. Various kinds of rent distinguished. By the common
law authorities rents were divided into three classes, i. e., rent
service, rent charge, and rent seck.^ A rent service is a rent
reserved upon the granting of land where the reversion contin-
ues in the grantor. It was so called because it always involved
an obligation on the part of the tenant to give some corporeal
services to the landlord; as where the tenant held the land by
fealty, and the payment of five shillings ; or where he held by the
service of ploughing the lord's land and paid five shillings rent.
Its other characteristics are that it always arises by the express
reservation of rent; that it continues the reversion in the land-
lord and that arrears of rent may be recovered at common law
by distress.'' This was the most common form of rent in very
early times. The landlord could, however, only distrain for the
rent while he OTvued the reversion and the right to the rent with
the incidental right to distrain passed with the reversion. ^° A
rent charge is the right to collect a certain rent at specified pe-
riods out of the profits of land granted, and was usually secured
by a distress which was expressly created by the instrument
creating the rent charge. In creating a rent charge the owner
either parts with his whole interest in the fee reserving to him-
self the payment of a rent charge either in money or some other
valuable thing; or it is created by the owner of the land grant-
ing a right to collect the rent charge out of the issues and profits

to uses where the use is executed ^ Ocean Grove Camp Meeting

by the statute. It cannot be re- Ass'n v. Sanders, 67 N. J. Law, 1,

.served out of an incorporeal here- 50 Atl. Rep. 449.

ditanient, as out of a riRht of com- « Co. Litt. 213; Bacon's Abb. tit.

mon, advowson, franchise title or Rent; 3 Kent's Com. 460; 2 Bl.

carody. If land and an incor- Com. 42.

poreal thing be demised together, «2 Bl. Com 42; 3 Kent's Com.

rendering rent, it shall issue 461.

wholly out of the land in point of lo Co. Litt. 142a, 148a.

remedy of distress." Co. Litt. 47a,

142a; Com. Dig. Rent (B, 3J.

NATURE AND INCIDENTS OP RENT. 507

of the land to some third pei'son. In both these cases the land
must be expressly charged with a right to collect rent by a dis-
tress for in the absence of such an express charge the right to a
distress does not exist in a rent charge. This species of rent,
Avhich is called a rent charge because the land is charged with
the payment of the rent and with the right to collect it by dis-
tress is created solely by the operation of the deed creating it
and not by the operation of law. A rent seek or barren rent is
a rent or a right to collect a certain profit at specified periods
out of the income of land, but without any right of distraining
for such rent either at common law. or by an}' express stipula-
tion in the lease. It could be created by deed where the right to
a distress was omitted or it could be created in the same way as
the rent service.^^ A fee farm rent is a rent charge reserved
in a grant of land in fee. This name is based on the perpe-
tuity of the rent or services and not upon its amount.^-
This form of rent was at one time common in some of
the eastern states and is still recognized in IMaryland and
Pennsylvania, where large quantities of land are held by ten-
ants on perpetual leases. Rents of assize were in England
the established rents of ancient tenants paid in a fixed amount
of money or a certain quantity of the products of the land.
They were called rents assize because they had been assized,
that is, ascertained or made certain to distinguish them from
variable rents that rose and fell according to the circumstances.^*
A quit rent was a rent resei'\'ed, payable yearly either in money
or in sennces and by which the tenant was quit of all other sei'v-
ice to the landlord. What was technically known as old rent
was such yearly rent as had always been paid. Improved rent

11 People V. Haskins, 7 Wend. portioned. IngersoU v. Sargeant,
(N. Y.) 43; Ciithbert v. Kuhn, 3 1 Whart. (Pa.) 337.

Whart. (Pa.) 357; Co. Litt. 218. "The difference between rents-

12 The Governors of Christ's seek and rents assized, fee farm
Hospital v. Hattold, 2 M. & G. 712; rent, etc., was abolished in Eng-
Co. Litt. 143b; Van Rensselaer v. land by the statute IV, 4 Geo. 2,
Chadwick, 23 N. Y. 32. In Penn- c. 28, and by that statute a right
sylvania, however, a ground rent of distress was given in the case
is said to be a rent service and of rent-seek and rent assized as
not a rent charge. Hence if a re- well as in the case of rents ex-
lease of a part of the land from piessly reserved.

the rent is made, the rent is ap-

508

LAW OF LANDLORD AND TENANT.

is the rent advanced on the old rent. A fine or premium paid
by the lessee to the lessor at the time of taking or renewing a
lease, is in the nature of an advanced payment of rent, and is
considered as an improved rent. Rack rent is a payment of
rent which is presumed to be of the full value of the premises or
nearly so.^* A net rent is a sum to be paid to the landlord clear
of all deductions/^

n Co. Litt. 295.

15 Bennett v. Womack, 7 B. & C.
627, 1 M. & Ry. 644, 3 Car. & P.
96, 6 L. J. (O. S.) K. B. 175, 31
R. R. 270, holding that under an
agreement for a "net rent" the
tenant must pay taxes and rates.
Rent service is the most ancient
species of rent known to the com-
mon law. It had its origin when
in England the villeins or serfs
who had cultivated the land of the
lords of manors began to he eman-
cipated. The land which they had
cultivated up to that time as serfs
of the lords was parceled out to
them and to their families, for
their support; and, as might be ex-
pected, they were required to ren-
der a portion at least of the same
or similar service which they had
rendered prior to their emancipa-
tion. In some cases the emanci-
pated serf was bound in return
for the use of the land for his sup-
port to deliver to his lord a cer-
tain quantity of the crops raised
upon it, while in other cases he
was required to perform certain
stipulated services for him. The
ownership of the land remained
where it had been before the cre-
ation of this new relation, and the
newly created tenant acquired
only a portion of the owner's in-
terest, which might be for a term
of years, for the life of the tenant,
or for the life of some other per-

son, but always upon the express
condition that he should render
some equivalent to the lord for its
use and for the support which he
derived from it for himself and
family. The right of the landlord
to the receipt of this service or
provision was known as rent serv-
ice, and this species of rent was
for centuries almost the only kind
existing in England. It was the
most widely recognized form of
paying rent in England, and at
one time even was prevalent and
well recognized in the eastern sec-
tion of the United States of Amer-
ica. With the substitution of the
payment of money in place of the
actual products of the land, the
form of rent service has continued
down to the present time. With
one exception, however, most of
the feudal incidents of rent serv-
ice, such as distress and attorn-
ment, have been abolished by stat-
ute in the United States. That ex-
ception is the estoppel of the ten-
ant to deny the title of his land-
lord, which was unquestionably
based upon the fealty of the an-
cient tenant to the lord of whom
he held his land; and to whom he
was bound to render certain speci-
fied services, the most important
of which in many cases would be
to aid that lord in defending by
force the title of the land of which,
with others, he was a tenant.

KATURE AND INCIDENTS OF RENT. 509

§ 325. Whether rent may be reserved out of personal prop-
erty. According to the definition above given, it seems abso-
lutely necessarj' that a rent shall issue out of land or some cor-
poreal thing, or in other words that it shall come from some in-
heritance whereunto the owner or grantee of the rent may have
recourse to distress. Some of the authorities have held that a
rent may be reser\-ed out of personal chattels while others have
denied this proposition, basing their denial upon the rule that
chattels are of such a nature that no distress can be had for a
default in the payment of the rent for them.^^ Thus, it was said
that a rent cannot issue out of a right of common, for as a com-
mon was really granted for the benefit of every one of the ten-
ants, and as the right of common which every tenant thus has
runs through the whole common, and no particular tenant has
a right to one part more than another, it follows that no distress
can be taken therefor. The same rule was applied to a warren
or right of hunting,^' and also to a piscary or right of fishing,^^
and in England a reservation of rent upon a lease of tithes was
not good for the reason that there was no place upon which the
distress could be taken. ^^ A great deal of unnecessary and ob-
solete learning may be found in the books of the ancient writers
on these questions. Most of it has no application to the present
time or to the condition of things in the United States by reason
of the fact that in nearly eveiy state of the union, the right of
distress for rent has been abolished so that calling a payment
rent, whether for the use of a chattel or for the use of land, does
not entitle the payee to distrain. Hence, if a chattel interest be
leased the payment is still rent in the modern acceptation of the
term though no distress can be levied, and there can be no ques-
tion that at the present day a reservation of rent for a lease of
a fishing privilege in a stream, or for a lease of a hunting privi-
lege on land, or for the use of the water of a stream, or for the
use of pasture for cattle on land would be rent, though the lease
is a mere license to enter on the land and not to use the land
itself. But, in England down to comparatively recent times

16 Bacon's Abr. tit. Rent (A) is Co. Litt. 144.

P. 8; 6 Bacon's Abr. tit. Rent lo Jewel's Case, 5 Co. 3; Cro.

(B) 8. Jac. Ill, 173.

17 Nov, 60; 3 Leon, 1.

510

LAW OF LANDLORD AND TENANT.

where land and personal chattels such as a ship or farm imple-
ments and a house and its furniture were leased, the theory con-
tinued to be that the rent agreed to be paid issued only out of
the house and the land, and the lessor was confined, in bringing
an action on the covenant to pay rent, to state that it was
simply and solely a demise of the land.-" If the lessee is evicted
from the land but retains the chattels there was anciently no
apportionment of the rent.^^ But it has also been held that
where a landlord's assignees in bankruptcy leased a furnished
house to a prior tenant at an entire rent and subsequently the
mortgagee of the house compelled the tenant to pay rent to him
the rent for the furnished house should be apportioned and the
assignee in bankruptcy could recover for the rent for the use of
the furniture.-^

20 Salmon v. Matthews, 8 M. &
W. 827; Collins v. Harding, Cro.
Eliz. 607; Spencer's Case, 5 Rep.
16; Walsh v. Pemberton, Selw. N.
P. 613. Inasmuch as rent issues
out of real and not out of personal
property, proof of a lease of real
property is not a variance under
an allegation of a, lease of a house
and the furniture and utensils in
it. Farewell v. Dickenson, 6 B. &
C. 251. "It must occur constantly
that the value of demised premises
is increased by the goods upon the
premises, and yet the rent reserved
still continues to issue out of the
house or land, and not out of the
goods, for rent cannot issue out
of goods." By the court in New-
man v. Anderton, 2 W. R. 224.

21 Emott v. Cole, Cro. Eliz. 255.

22 Salmon v. Matthews, 8 M. &
W. 827, 11 L. J. Ex. 59. For a
case where personal chattels were
leased for a term of seventeen
years, see .Tones v. Wingfield, 3 M.
& S. 846, 10 Bing. 308. By statute
as well as by usage in this com-
monwealth, the word "rent" may
include the compensation to be
paid for the occupation of land by

a tenant, whether he holds under
a written lease, at will, or at suf-
ferance, and whether the amount
to be paid has been defined by the
agreement of the parties, or has
been left indefinite. Kites v.
Church, 142 Mass. 589. In Com-
monwealth V. Contner, 18 Pa. St.
447, the court, by Black, C. J.,
said: "Now a sum of money pay-
able periodically for the use of
chattels is not rent in any legal
sense of the word. It cannot be
distrained for; and unless it can,
it is not demandable out of the
proceeds of a sheriff's sale. For
this right comes in place of a dis-
tress by the plain words of the
statute. Rent must not only issue
out of the land, but it must be
fixed, definite, and certain in
amount, whether payable ■ in
money, chattels or labor. If, there-
fore, a lease so mixes the real and
personal property together that it
cannot be determined how much
of what is called the rent is to be
paid for the chattels, and how
much is the profit of the land,
there can be no distress for non-
payment of it. Rent signifies a re-

NATURE AND INCIDENTS OF BENT,

511

§ 326. The payment of rent as evidence of tenancy. The

receipt and payment of rent are only prima facie proof of the
existence of a tenancy. A presumption that a tenancy exists
may be overcome by showing that the money was paid for some
other consideration than as rent under an existing lease,-^ as
for example that it was paid for rent due under a former lease,^*
or that it was paid by the tenant under an order of the court or
in order to prevent a distress.-^ So the fact may be shown to re-
but an existence of a tenancy, that the sum actually paid was
only a small portion of the actual rental value of the premises.
Whether the money was actually paid for rent or not, where
the evidence is disputed is for the jury to determine. =" The
fact that the money was paid as rent does not establish any par-
ticular term or holding, and if the beginning of the tenancy or
its length is in question these facts must be shown by other evi-
dence." "Where money is paid for rent and a receipt is given for
it dated on a particular day, the receipt is prima facie evidence
of the beginning of a tenancy upon that day, or upon some pre-
vious day. So if rent is payable by the lease quarterly, semi-

turn or compensation, and a cer-
tain profit issuing yearly out of
lands and tenements corporeal.
It must be a profit, though it need
not be in money. It must be cer-
tain, or that which may be re-
duced to a certainty by either
party. It must issue yearly,
though it need not issue every
successive year, but may be re-
served every second, third or
fourth year, etc. It must issue
out of the thing granted (it must
issue out of lands and tenements
corporeal) ; therefore, a rent can-
not bo reserved out of an advow-
son, or the lil\:e. But a grant of
such a sum may operate as a per-
sonal contract, and oblige the
grantor to pay the money, or sub-
ject him to an action of debt. Co.
Litt. 47."

23 Phillips V. Mosely. 1 Car. & P.
262; Den v. Rawlins, 10 East, 261;
Right v. Bawden, 3 id. 460; Doe d.

Lord V. Crago, 6 C. B. 90, 17 L. J.
C. P. 263, 12 Jur. 705; Hurley v.
Hanrahan, 15 W. R. 990; Attorney
General v. Stephens, 6 De G., M.
& G. Ill, 25 L. J. Ch. 888, 2 Jur.
(N. S.) 61, 4 W. R. 191; Cox v.
Knight, 18 C. B. 645, 25 L. J. C. P.
314; Harden v. Hesketh, 28 L. J.
Ex. 137, 4 H. & M. 175, 7 W. R.
186.

24 Den V. Rawlins, 10 East, 261;
Right V. Bawden, 3 id. 460.

25 Strahan v. Smith, 4 Bing. 96.
12 Moore, 289, 5 L. J. (O. S.) C. P.
95.

2" Doe y. Wilkinson, 3 Bar. &
Cres. 413.

27 Phillips V. Mosely, 1 Car. &
P. 262, in which case it was said
that the mere fact that the money
was paid as rent would be as good
evidence of a lease for twenty-one
years as it would be of a lease
from year to year.

512 LAW OF L^VNDLORD AND TENANT.

annually or otherwise, at certain stated or uniform elates the pre-
sumption from the payment of rent on those dates is that the
holding is to be in accordance with the lease.-* The payment of
the rent also raises a presumption against the tenant that the
person receiving it has a good title to the rent which is conclu-
sive where the rent is paid to the person from whom possession
was taken as the tenant is not permitted to dispute the land-
lord's title. If the rent is claimed by a person other than the
one from whom possession was taken, his title to the rent may be
disputed. "''

§ 327. The certainty of rent. The rent of the land in what-
ever way it is paid by the tenant must be certain in its amount,
or capable of being reduced to certainty by computation. If tlie
rent is susceptible of being reduced to a certainty by computa-
tion, it is sufficiently certain. Thus, where rent was to consist
of the delivery of one bale of cotton for each acre cultivated by
the tenant, it was held that though the value of the cotton was
not fixed, yet the rent was sufficiently certain as the value of
the bale of cotton could be readily ascertained.^" The fact that
the amount of rent is not definitely stated in the lease, and that
it has to be computed in order to ascerain how much is payable,
does no prevent its collection. The rule applies in this case as
in others that those things are certain which may be made so.
Thus, rent may be made to vary according to the value of the
land. An agreement to pay rent on the lands comprised in a
farm at a certain percentage on their value includes all the land
comprised in the farm whether cultivatable or not, but not land
in the farm occupied by a railroad for a roadbed and right of
way.^^ So where rent is raised in proportion to the increased
income from the premises which the tenant uses for the purpose
of supplying steam power to other houses in the same block, tlie
rent is varied according to the amount to which the income is
increased. In such a case gross income and not net income is
meant.^^ A mathematical error in calculating or a clerical

28 Sandhill v. Franklin, L. R. 10 so Brooks v. Cunningham, 49
C. B. 342. Miss. 108.

29 Rodgers v. Pitcher, 6 Taunt. 3i Williams v. Glover, 66 Ala.
208; Cornish v. Searell, 8 B. & C. 189, 193.

471; Cox V. Knight, 18 C. B. 645. 32 Hardy v. Briggs, 14 Allen

(Mass.) 473.

NATURE AND INCIDENTS OF RENT. 513

en^or in stating in the lease the amount of the quarterly install-
ment of rent may be disregarded. The covenant to pay a fixed
sum as yearly rent controls the statement of the installments
and where the total amount of the quarterly payments falls
short of, or exceeds the yearly rent, the court will assume that
the latter is the correct amount.^^ An agreement to pay a cer-
tain named sum for rent, subject to any error in the figuring
thereto attached is not void for vagueness and indefiniteness.
The sum named is certain and will control unless a mistake in
the figuring is shown. This may always be done by parol evi-
dence where the rental amount is the result of an arithmetical
calculation though it is not stipulated for in the lease. The lease
is not void for uncertainty if it give sufficient data by which the
amount of rent due can be found though it has to be worked
out by calculation. It may also be sufficient to state a gross
sum as rent assumed to be the result of such a calculation which
will be presumed to be correct until the contrary is proved.^*
§ 328. Rent lo become due on the happening of some future
event. It is always competent for the parties to a lease to
stipulate therein that money rent shall become due and payable
upon the happening of some particular event in the future. A
contingent event may be selected by the parties, and if such an
event does not happen, the rent does not become due. Thus,
rent may be made to become due and payable when certain build-
ings are erected on the premises, and are complete whether they
are to be erected by the landlord or by the tenant, or when the
crops mature, and are ready to be gathered, or when the tenant's
income and profits from his use of the premises shall amount
to a certain sum. In all these cases the happening of the con-
tingency upon which the rent is to become due and payable, is a
condition precedent to any liability for rent on the part of the
tenant. Thus, no rent is due by the tenant under an agreement
by the landlord to erect additional buildings, the tenant to pay
as rent a certain percentage of the cost of such buildings until
the buildings are complete, and the landlord has notified the
tenant of the cost of the buildings.^° A lease which provides that

. 33 Smith V. Blake, 88 Me. 241, an Weed v. Crocker, 13 Gray

247, 33 Atl. Rep. 992. (Mass.) 219, 221.

34 McFarlane v. Williams, 103
111. 33, 43.

33

514 LAW OF LANDLORD AND TENANT.

the payment of the rent shall not begin until the landlord has
completed a certain building on the premises, is not void for
want of mutuality because it does not expressly provide that the
landlord shall complete the building. The time for the com-
pletion of the building, not being of the essence of the lease
may be fixed by a subsequent agreement,^" and the fact that the
landlord has not expressly agreed to complete the building, is
immaterial as under such a lease, the completion of the building
by him would be regarded as a condition precedent to the
payment of rent. In case a sum specified as rent is to be due
and payable on the non-happening of a partieiJar event, the
burden of proving that the event has not happened is upon
the landlord claiming the payment of the rent. This view is in
accordance with the well settled rule that where proof of the
negative is essential to the existence of a right the party claim-
ing the right has the burden of proving the negative.^^

§ 329. Rent payable in services. Rent may be made payable
by the lease, in services to be rendered to the landlord by the
tenant a^s well as in money or in merchandise. Thus, an agree-
ment with the owner by the occupant of land to live on it, and
to keep oif trespassers, to fence the land, construct irrigation
ditches, to plant trees or to erect buildings with material fur-
nished by the owner,^" is an agreement to pay rent and consti-
tutes the occupant a tenant of the owner.^'' So also rent may be
paid in the furnishing of maintenance and support by the ten-
ant for the landlord, and in all these cases where rent is payable
in services the same rules apply as where rent is payable in
money, for if there be a default in the rendition of such services,
the landlord may pursue the same remedy for the recovery of
possession as though the rent was payable in money only.*° So
also services rendered in cleaning a church,'*^ or in shearing

so Hammond v. Barton, 93 Wis. 39 For other cases where rent is

183, 67 N. W. Rep. 412. payable wholly or in part in serv-

37 City of New Albany v. En- ices rendered, see § 326.

ders, 143 Ind. 192, 42 N. E. Rep. -io Gilpin v. Adams, 14 Colo. 512,

683; Mississenewa M. Co. v. An- 24 Pac. Rep. 506.

drews, 22 Ind. App. .523, 54 N. E. 41 Burns v. Cooper, 31 Pa. St.

Rep. 146. 426; Edney v. Benham, 7 Q. B.

38 Shaw V. Hall, 79 Mich. 86, 44 796.
N. W. Rep. 422.

NATURE AND INCIDENTS OF BENT. 515

sheep,*- or in carrj-ing coals for the landlord,*^ reserved in the
lease as compensation for the use of the premises, have been held
to be a sufficient reservation of rent. AYhere land is leased by an
aged person upon the consideration that the lessee will support
the lessor and his wife the court may imply that the furnishing
of maintenance and support by the lessee, is a condition upon
which a possession must be based. If the main purpose of the
use and possession of the land were the support of the lessor, a
condition may be read into the lease, though there is no ex-
press agreement that the lessee should forfeit his possession in
case he failed to support the lessor. But the fact that there is
a clause of re-entry and forfeiture upon the failure of the lessee
to fulfill his agreement, is conclusive that the lease was made
upon condition, and that the agreement for support was not
merely a covenant.**

§ 330. Rent payable in specific articles. Eent may be made
payable by the delivery of specific articles by the tenant to the
landlord.*^ Thus, a store-keeper, or manufacturer who occupies
a store, warehouse or factory as a tenant, may by special agree-
ment be obliged to pay his rent in particular articles of mer-
chandise dealt in or manufactured by him. So, also it may be
arranged that these articles shall be selected by the landlord,
the lease specifying the limit of value to which the gross
amount selected must be confined. But the most common in-
stance of rent being paid in specific articles of merchandise
occurs where the owner of farm land, and a tenant occupying
such land for the purpose of cultivating it. agree that the rent
for the land shall be paid by the tenant delivering to the land-
lord a certain proportionate share of all the crops produced by
him on the land during the term. Where rent is payable in spe-
cific articles, the price of which is fixed by the lease, the rent
is extinguished by the tender of the articles on the day fixed for
payment whether the price or value of the articles is more or less
upon the day when they are tendered than on the day when the
lease was made.*^ All that the landlord can recover in money
upon the failure of the tenant to deliver the articles in payment

42 Co. Litt. 96. 45 Pace v. Goodson (Ga. 1906),

43 Doe V. Morse, 1 B. & Ad. 365. 56 S. E. Rep. 363.
*i GansoQ v. Baldwin, 93 Mich.

217.

516 LAW OF LANDLORD AND TENANT.

of the rent, is tlie value mentioned in the lease, though the value
of the property upon the day when they should have been de-
livered was greater than that mentioned in the lease. ^'^ If, how-
ever, rent is to be paid in chattels, the value of which is not
specitied in the lease the landlord may upon the failure of the
tenant to deliver the chattels, recover in money their market
value as it existed on the day fixed for the payment.^^ Rent
which is payable in crops is due and payable within a reason-
able time after the crops have matured.*^ It is due when the
crops or any portion of them are fit for the market though they
may not have been harvested by the lessee. Rent payable in
crops must be paid when oats are in stack, com is reaped and
the tenant has gathered in and is feeding the corn. It need not
be that the crops are actually ready for market for if this were
so the tenant might delay the payment of rent indefinitely by
failing to harvest and prepare the crops for sale.^° Where rent
is payable in specific articles raised or manufactured on the
land a division and a delivery of the landlord's share is neces-
sary to vest the title to the personal chattels in the landlord, as
against creditors of the tenant.^^ Any act intended to and whicii
does enable the lessor to acquire possession of or dominion over
the thing to be paid is a sufficient delivery to divest the tenant's
title.*^ "Where rent is payable in chattels or services absolutely,
the tenant has no right without the landlord's consent to an
option to pay the rent in money. Thus, where rent was payable
half in money and half in board, it was not optional with the
tenant to pay all the rent in money or board as was most con-
venient for him, but he was compelled to pay his rent half in
board just as far and to the same extent as the landlord was
obliged to receive half the rent in board.^^ A right in the lessor

"HeyM'ood v. Heywood, 42 Mo. 135, 136; Burns v. Cooper, 31 Pa.

299. St. 426, 427; In re Wait, 7 Pick.

■•THeywood v. Heywood, 42 Mo. (Mass.) 100, 105, 19 Am. Dec. 262.

299. •'■•2 Burns v. Cooper, 31 Pa. St.

*8 Heywood v. Heywood, 42 Mo. 426, 427.

299; Brooks v. Cunningham, 49 cs Evans v. Morris, 6 Mich. 369,

Miss. 108. which also held that the tenant

4!) Toler V. Seabrook, 39 Ga. 14. was not bound by this lease to call

r-o Hull V. Stogdeel, 67 Iowa, 251, on the landlord and demand that

253, 25 N. W. Rep. 156. he should send him boarders, but

61 Davis V. Hamilton, 71 Ind. that the landlord must call for

NATURE AND INCmENTS OP RENT. 517

to elect "uhetlier he shall take the rent in specific articles or in
money terminates with the death of the lessee. The lessor has
no title to or interest in the personal property until he elects to
take it and it is delivered to him. The interest not being a
present one the power to elect is not a power coupled with an in-
terest. Until the lessor elects the personal property is subject
to the claims of the creditors of the lessee and, on his death, the
personal property is assets in the hands of the tenant's personal
representative. Its character thereafter is fixed and the lessor
can no longer claim it in specie for the payment of the rent.^*
An agreement for the commutation of rent which is payable in
specific articles is not to be conclusively presumed from a contin-
ued coui-se of dealing which consists of paying and receiving a
stated sum of money in lieu of rent. Though it appears that
the amount of money paid a? rent was about equal to the value
of the articles to be delivered as rent there is no presumption
that the parties intended the payment and receipt of the money
to be a commutation of the payment of the rent in specific arti-
cles. It may be assumed with equal reason that neither of the
parties meant to waive the right to insist upon the future pay-
ment of rent on the terms of the lease but that the payment in
money instead of in personal property was merely to suit the
temporary convenience of the parties. But after such a course
of dealing carried on for many years, the lessor will not be per-
mitted to insist upon the original terms of the lease as to the
mode of payment and declare a forfeiture upon the failure of
the lessee to comply with such terms on short notice where the
articles in which the rent was to be paid were difficult for the
lessee to procure because of the fact that they had to be imported.
The lessee must be given ample time under the circumstances to
procure the articles with which he is bound to pay the rent.^'
An agreement by a lessee to pay to the lessor a specified share
of the profits made upon the premises is an agreement to pay
rent. The lessee is bound to do his outmost to make a profit on
the use of the land and, in the absence of proof to the contrary,
in an action between him and his lessor it will be presumed that

that portion of the rent payable in s* In re Wait, 7 Pick. (Mass.)

board within the year as the rent 100, 105, 19 Am. Dec. 262.
fell due. 53 Lilley v. Associates, 101 Mass.

432, 435'.

518 LAW OF LANDLORD AND TENANT.

he. has done so.^® AVhere under a lease of this character the
landlord sues for his share of the profits the burden of proof is
on the lessor to show what the profits are. If through the negli-
gence of the lessee, or through his failure to cultivate the
land there are no profits he is liable to pay the lessor what the
use of the land would be reasonably worth.

§ 331. The express covenant to pay rent. Inasmuch as the
liability of a tenant to pay rent which is raised by implication in
the absence of an express covenant, ceases to exist as soon as the
tenant assigns his lease and surrenders the possession, which he
may do to a beggar or insolvent person without his landlord's con-
sent,^'' it is very desirable for the protection of the landlord that
the tenant should expressly covenant to pay rent. The tenant
M'ho does covenant is bound by the covenant until the end of his
term, unless he is sooner released by the landlord, irrespective of
the fact that he decides not to enter into possession,^^ or the fact
that after an entry he assigns his lease and surrenders the prem-
ises. In the latter case, as the covenant to pay rent runs with
the land, the landlord has a double security, for he may first
proceed against the assignee by reason of the privity of estate
existing with him, or against the original tenant and assignor
upon the latter 's covenant to pay rent. For the covenant to pay
rent is a covenant running with the land and is biding on the
assignee of either party though not expressly so stated. °^

§ 332. A covenant to pay rent may be implied. Beside the
reservation of rent in the lease, an express covenant by the
lessee to pay rent is usually inserted. In all cases where the
latter is absent from the lease a covenant on the part of the
lessee to pay rent will be implied. He will be presumed to have
bound himself by the act of taking possession and continuing

cc Spring Brook Ry. Co. v. 917; Main v. Feathers, 21 Barb.

Lehigh Coal & Navigation Co., 181 (N. Y.) 646; Dolph v. V^hite, 12

Pa. St. 294, 37 All. Rep. 525. N. Y. 296; Sandwith v. De Silver,

57 Taylor v. Shum, 1 Bos. & Pul. 1 Browne (Pa.) 221; Bradford Oil

21; Onslow v. Carrie, 2 Madd. 330. Co. v. Blair, 113 Pa. St. 83, 4 Atl.

ssTully V. Dunn, 42 Ala. 262; Rep. 218, 57 Am. Dec. 442; Fennell

McGlynn v. Brock, 111 Mass. 219. v. Guffey, 139 Pa. St. 341, 20 Atl.

sn Salisbury v. Shirley, 66 Cal. Rep. 1048; Shaw v. Partridge, 17

223, 5 Pac. Rep. 104; Carley v. Vt. 626; Croade v. Ingraham. 13

Lewis, 24 Ind. 23; Trask v. Gra- Pick. (Mass.) 33, 35
ham, 47 Minn. 571, 50 N. W. Rep.

NATURE AND INCIDENTS OF RENT. 519

therein to pay the landlord what the use and possession of the
premises are reasonably worth. A covenant to pay rent will be
implied on the part of a lessee by his receiving and accepting
a lease by deed poll reserving rent,®° without any covenant to
paj' rent even though the lessee does not go into possession.^*
The acceptance by the lessee of an instrument which gives him
an absolute right to an immediate possession creates the implied
promise to pay rent for what he has a right to enjoy. This prom-
ise is not within the Statute of Frauds.^^ In all these eases of an
implied promise to pay rent the landlord may maintain an
action of assumpsit against the tenant for the rent. Unless
therefore the landlord in suing relies upon an express agree-
ment by the tenant to pay rent, it is not necessary for him to
prove one, nor is it necessary for him to prove even a particular
reservation of rent, in the lease, or that the occupant has ever
paid him rent. All that the landlord must prove is that the
occupant was in possession with his permission or, in other
words, that the relation of landlord and tenant existed between
him and the occupant. If this fact appears the law will permit
the landlord to recover for the use and occupation under the
fiction that the occupant has promised to pay the owner what
such use and occupation were reasonably worth.*'^ But a prom-
ise by an occupant of land to pay rent is not infen^ed from oc-

copike V. Brown, 7 Cush. v. O'Donnell, 173 Mass. 398, 53 N.

(Mass.) 133. E. Rep. 882; Knox v. Bailey, 4 Mo.

ciKabley v. Worcester Gas App. 581; Wilkinson v. Wilkinson,

Light Co., 102 Mass. 392. 62 Mo. App. 249, 1 Mo. App. Rep.

62 Providence Christian Union v. 523 ; Sweesey v. Durnall, 23 Neb.
Eliot, 13 R. I. 74, 75; Goodwin v. 531, 37 N. W. Rep. 459; Welcome
Gilbert, 9 Mass. 510; Sage v. Wil- v. Labonte, 63 N. H. 124; Cham-
cox, 6 Conn. 81; Allen v. Pryor, 3 bers v. Ross, 25 N. J. Law, 293;
A. K. Marsh. (Ky) 305. An agree- Seaman v. Ward, 1 Hilt (N. Y.) 2;
ment to take premises "at and Scranton v. Booth, 29 Barb. (N.
under at rent specified" is an Y.) 171; Coit v. Planer, 30 N. Y.
agreement to pay rent for which Super. Ct. 413, 4 Abb. Prac. (N.
assumpsit will lie. Doe d. Rains Y.) Rep. 140; Lynch v. Onondaga
V. Keller, 4 Car. & P. 3. Salt Co., 64 Barb. (N. Y.) 558;

63 Jackson V. Mowry, 30 Ga. 143; Heidelbach v. Slader, 1 Handy
Littleton v. Wynn, 31 Ga. "583; (Ohio) 456; Sterrett v. Wright, 27
Crouch V. Birles, 7 J. J. Marsh. Pa. St. 259; Cobb v. Kidd, 8 Fed.
(Ky.) 255. 23 Am. Dec. 404; Oakes Rep. 695. 696; Carpenter v. United
V. Oakes, 16 111. 106; Fanning v. States, 17 Wall. (U. S.) 489, 493.
Stimpson, 13 Iowa, 42; Appleton

520 LAW OF LANDLORD AND TENANT.

cupation alone.®* It must also appear that the person in pos-
session was occupying as a tenant and not in some other capacity.
For if he is a licensee,*'^ or a trespasser, or a vendee in possession
under his contract to purchase,'^*' or a public official holding pos-
session after his tei-m has expired,''^ or a caretaker,^^ or if, in
express terms, he repudiates the relation of tenant to the owner
there is no implied liability to pay rent. It is often important
to distinguish where a lease is assigned by a lessee between a
lease where the covenant to pay rent is an express covenant, and
a lease in which a covenant to pay rent is only implied. If the
covenant is express a privity of contract arises between the
lessor and the lessee which endures during the term in the ab-
sence of a surrender no matter who may be in possession of the
premises themselves. If, however, the covenant to payment is
implied the tenant is liable only by reason of his privity of es-
tate with the landlord w^hich liability ends on his assig-nment of
the term to another and the entry of the assignee upon the prem-
ises, with the acceptance of rent from him by the lessor.*'^ The
words "yielding and paying" rent contained in most leases have
from the earliest times furnished an opportunity for much dis-
cussion as to whether they did or did not constitute an express
covenant to pay rent. There can be no question that a lessee
going into possession under a lease which contains these words
will be liable on an implied promise to pay the rent to the lessor
for, if he enjoys the possession of the premises, he will be con-
clusively presumed to have promised to pay for it.^" But the
question is very different when after an assignment of the ori-

64 Bank v. Getchett, 59 N. H. gill, 97 Mich. 44S, 56 N. W. Rep.

281, 285; Welcome v. Labontee, 63 849.

N. H. 124, 125; Middleton's Ex'rs es Middleton's Ex'rs v. Middle-

V. Middleton, 35 N. J. Eq. 141; ton, 35 N. J. Eq. 141.

Mitchell V. Pendleton, 21 Ohio St. 69 Fanning v. Stinson, 13 Iowa,

664, 666. 42, 48; Kempton v. Walker, 9 Vt.

63 Strickland v. Hudson, 55 Miss. 191, 199; Marsh v. Brace, Cro. Jac.

235. 334; Beach v. Gray, 2 Denio (N.

66 Miles V. Elkins, 10 Ind. 329; Y.) 84; Seaman v. Ward, 1 Hilt.
Lapham v. Norton, 71 Me. 83; Lit- (N. Y.) 52; Pitcher v. Tovey, 4
tie V. Pearson, 17 Pick. (Mass.) Mod. 71; Treackle v. Coke, 1 Vern.
301, 19 Am. Dec. 289. Contra, 165; Staines v. Morris, 1 V. &
Gould V. Thompson, 4 Mete. B. 11.

(Mass.) 224. to KimptOn v. Walker, 9 Vt. 191,

67 Cass County Sup'rs r. Cow- 199.

NATURE AND INCmENTS OF RENT. 521

ginal lease by the lessee the lessor attempts to make him pay
rent in the first instance which has accrued while the assignee
and not the original lessee was in possession. The ancient com-
mon law authorities are very contradictory on the question
whether "yielding and paying a certain rent" is or is not an ex-
press covenant to pay rent,'^ which creates a privity of contract
between the lessor and the lessee. The modern view is that only
an implied covenant is created by these words and that conse-
quently the obligation to pay rent continues incumbent upon the
lessee only while he is in the actual occupation and terminates
upon his assignment of the lease and the entry of another."^ It
has also been held that a covenant to pay rent generally during
the term, but not promising in express words to pay it to the
lessor or to any other particular person, is an implied covenant
which though running with the land is no longer binding
on an assignor of the term after the lessor has accepted rent
from the assignee.'^ No form of language is required to con-
stitute a covenant reserving rent. Any words which indicate
that it was the intention of the parties that rent should be paid
is usually sufficient. But the reservation of rent should be cer-
tain both as to the land and as to the time of payment, or should

TiKimpton v. Walker, 9 Vt. 191, that by acceptance of the lease,

199. the lessee becomes liable for the

72 "The difficulty seems to have rent; but it is impossible for me

arisen from the indefinite use of to distinguish the origin of his

the terms 'express' and 'implied' liability from an ordinary case of

as having reference to the thing an implied assumpsit, where the

to be done, on the one hand, or obligation arises, not from ex-

the act of assuming the obliga- press undertaking but from volun-

tion on the other. Thus, the ex- tarily assuming a relation, to

pression 'yielding and paying which the law attaches certain

rent,' expresses the thing to be liabilities. Indeed, remove the

done, and, in that sense, the con- seal from the lease in question,

tract is express. Yet the words and we have a case for assumpsit

are introduced, in form, as a con- for use and occupation; replace the

dition of the demise and are sus- seal and the action must be cove-

ceptible of such a construction. nant, but the covenant in one case

Still the question whether the is as much implied as the promise

lessee incurs a personal liability in the other." Kimpton v. Walker,

to be enforced by action, is not 9 Vt. 191, on p. 200.

necessarily involved in the phrase- ^s Fanning v. Stimson, 13 Iowa,

ology, but is left to legal construe- 42, 49.
tion or implication. It is true.

522 LAW OF LANDLORD AND TENANT.

be of a character that the amount and date of paj-ment can be
ascertained. If rent is made payable annually or quarterly and
the particular date is not stated upon which it shall be paid, the
reservation is valid as the law will presume that the rent was to
be paid on the last day of the rental period. So, if it is left op-
tional with th.e tenant whether he shall pay the rent yearly,
semi-annually or quarterly, the landlord by receiving the rent
yearly, places a construction upon the language of the lease and
cannot thereafter claim to receive it quarterly, unless with the
consent of the tenant.'^*

§ 333. When rent is due. In the absence of a special agree-
ment by a tenant to pay his rent in advance, and if there be no
statutory enactment requiring it to be paid in advance, rent is
not payable until after the possession and occupation of the de-
mised premises have been enjoyed by the tenant. Thus, where
there is no express agreement that yearly or monthly rent shall
be paid in advance, the rent is not due until the end of the rental
period.''^ So, also, yearly rent which is payable quarterly, is
paid at the end and not at the beginning of the quarter in the
absence of a special agreement in the lease by the tenant to that
effect.'^ The rent is payable at the end of the year or quarter,

74Mallam v. Arden. 10 Bing. born, 23 Pick. (Mass.) 295, 29D;

299. An agreement for the pay- Ostner v. Lynn, 57 Mo. App. 187;

ment of the rent at so much per Hilsendegen v. Scherck, 55 Mich.

year usually makes rent payable 468; Ridgley v. Stillwell, 27 Mo.

yearly unless there is other Ian- 128, 134; Duryee v. Turner, 20 Mo.

guage in the lease by which this App. 34; Kistler v. McBride, 65

presumption is rebutted. Collett N. J. Law, 553, 555; Goldsmith v.

V. Curling, 10 Q. B. 785, 16 L. J. Schroeder, 87 N. Y. Supp. 558, 562;

Q. B. 390, 11 Jur. 890. Liebe v. Nicolai, 30 Oreg. 364, 371,

'BMcFarlane v. Williams, 107 48 Pac. Rep. 172; Gibbs v. Ross, 2

111. 33, 42; Dixon v. Niccolls, 39 Head (Tenn.) 437, 440; Donaldson

111. 372, 386, 89 Am. Dec. 312; v. Smith, 1 Ashm. (Pa.) 197;

Dauchy Iron Works v. McKim Gas- Menough's Appeal, 5 Watts & S.

ket & Mfg. Co., 85 111. App. 584; (Pa.) 432; Boyd v. McCombs, 4

Stowman v. Landis, 5 Ind. 430; Pa. St. 146; Gray v. Chamberlain,

Raymond v. Thomas, 24 Ind. 476; 4 C. & P. 260; Doe d. Mitchell v.

Cowan V. Henika, 19 Ind. App. 45, Weller, 1 Jur. 622; Coomber v.

48 N. E. Rep. 809; Indianapolis, Howard, 1 C. B. 440.
etc., Co. V. First Nat. Bank, 134 76 Wood v. Partridge, 11 Mass.

Ind. 127, 132, 33 N. E. Rep. 679; 488; Cotton Mfg. Corporation v.

Castleman v. Du Val, 89 Md. 657, Melven, 15 Mass. 268; Vegely v.

43 Atl. Rep. 821; Boardman v. Os- Robinson, 20 Mo. App. 199; Gar-

NATURE AND INCIDENTS OF RENT. 523

even if payable in a share of crops raised on the land/'' or in
merchandise."^ Though a tenant may abandon the premises be-
fore the expiration of a rental period and notify his landlord
he will repudiate the lease, the landlord cannot sue for rent un-
til it falls due under the lease.'® This rule is the logical outcome
and result of the principle that rent is payable and is to be
paid by the tenant out of the profits and proceeds of the land
and that it cannot therefore be paid until the profits have been
gathered and realized by the tenant. Hence it also follows that
if the tenant shall be ousted by an eviction before the rent is
due the obligation to pay rent is at an end for the consideration
or thing of value for which the rent was promised to be paid
has failed.®" Hence a covenant to pay rent upon a day. men-
tioned therein creates no debt or legal obligation to pay the
rent or any right on the part of the lessor to demand payment
or to sue until the day named for payment has arrived.*^ The
rent may therefore never become due at all for the lessee may,
before the date specified, surrender possession to the lessor, or the
term may be merged, or the lessee may be evicted and, in either
case, he will be absolved from the performance of his covenant
to pay rent.®^ In a lease which merely provides that it is for
the term of eleven months, the rent to be payable on the twen-

vey V. Dobyns, 8 Mo. 213, 215; paid in instalments on the first of

Schenck v. Vannest, 4 N. J. Law, each month does not mean that

329; Leo Wolf v. Merritt, 21 the rent is to be paid in advance

Wend. (N. Y.) 331. unless it is so stated in the lease,

77 Menough's Appeal, 5 Watts & but on the first of each month the
S. (Pa.) 432; Boyd v. McComb, 4 rent which has accrued for the
Pa. St. 146; Sharpless' Estate, 8 preceding month must be paid.
Lane. Bar. (Pa.) 125; King v. Goldsmith v. Schroeder, 87 N. Y.
Bosserman, 13 Super. Ct. (Pa.) Supp. 558, 562.

480. '^0 Wood V. Partridge, 11 Mass.

78 Duryee V. Turner, 20 Mo. App. 488, 493; Bordman v. Osborn, 23
34; Ostner v. Lynn, 57 Mo. App. Pick. (Mass.) 295.

187. A provision that rent shall «i The lessee has the whole of

be paid quarterly in equal pay- the day on which rent falls due

ments on the requires that to make pajTnent. Dalton v. Lau-

the rent be paid at the end of dahn, 27 Mich. 529; Sherlock v.

each quarter. Holt v. Nixon (C. Thayer, 4 Mich. 355.

C. A.), 141 Fed. Rep. 952. S2 Wood v. Partridge, 11 Mass.

79Nicholes v. Swift, 118 Ga. 922, 480, 493; Russell v. Fabyan, 28 N.

45 S. E. Rep. 708. A provision in H. 543, 545
a lease that anual rent shall be

524 LAW OP LANDLORD AND TENANT.

tieth day of each and every month without using the words "in
advance" the installments of rent are due and payable on the
twentieth day which occurs at the end, instead of at the begin-
ning of each month.^^ So a lease which requires rent to be paid
in "monthly payments" the first payment to be made on the
first day of the term, does not require that all payments shall
be in advance on the first day of each month; and payments
of rent subsequent to the first payment need not be in advance.^*
Neither the time of payment, nor the right to sue for rent which
is due on a day specified is postponed by a stipulation that the
landlord may enter,^^ or may distrain ^'^ after a period of default
subsequent thereto.

§ 334. Rent which is made payable in advance. It is well
settled both in England ® ' and in the United States ^* that rent
may legally be made payable in advance. Rent will never be
presumed to be payable in advance without some evidence of in-
tention by the parties that it shall be so. It is, however, not
necessary that the lease shall expressly provide that the rent
shall be paid in advance, if it appears from the language of the
instrument, and the conduct of the parties, that it was their in-
tention that rent shall be paid in advance.*'* The time fixed for
the payment of the rent may always be determined from a con-
sideration of the conduct and dealings of the parties to the
lease, contemporaneous with or subsequent to its execution,
where the lease is silent, ambiguous or uncertain."" Under an
tigreement for a lease "all conditions and covenant to be the
usual ones," rent is not to be made payable in advance.*^ A
stipulation in a lease that if a lessee shall become embarrassed,
or shall make an assignment for the benefit of his creditors, or
shall be sold out at a sheriff's sale, the whole rent for the bal-
ance of the term shall become due and payable in advance, is

83 Castleman v. Du Val, 89 Md. st Bulkley v. Taylor, 2 T. R. COO;
657, 659, 43 Atl. Rep. 821. Harrison v. Barry, 7 Price, 690.

84 Liebe v. Nicolai, 30 Oreg. 364, ss Giles v. Comstock, 4 N. Y. 270,
370, 48 Pac. Rep. 172. 272, 53 Am. Dec. 374.

sr. Rowe V. Williams, 97 Mass. so Ellis v. Rice, 195 Pa. St. 42.

1C3, 165. "" Gore v. Lloyd, 12 M. & W. 463,

so Van Rensselaer v. Jewett. 5 13 L. J. Ex. 366. See, also, Allen
Denio, 121, 128, 131, 2 N. Y. 136, v. Bates, 3 L. J. Ex. 39.
148. 01 Arcade Realty Co. v. Tunney,

101 N. Y. Supi). 593.

NATURE AND INCIDENTS OF RENT. 525

not against public policj^, and will be sustained in disbursing the
proceeds of the sheriff's sale of the tenant's property to the ex-
tent of giving the landlord priority for one year's rent, at least.^-
In determining whether rent is or is not payable in advance it
is not indispensable that the words "in advance" shall be used.^^
ITius the rent is payable in advance in a lease which provides
that the first payment shall be made on the first day of a month
some time after the date of the lease and that the yearly rent
shall be paid in monthly installments of an equal amount com-
mencing on the date mentioned.^* A provision that the rent
shall be payable in equal quarterly installments commencing
from the 25th day of March then instant, means that the first
quarter's rent is payable on that date and the future rent is pay-
able in advance."^ A provision in a lease for years that the
lessee should, on his taking possession of the premises pay the
amount of a quarter's rent which should be allowed him for the
last quarter on the determination of the tenancy, is in its effect
a stipulation for the payment of all rent in advance.^® A receipt
showing that rent has been paid in advance may in some cases
be suflScient proof of a promise to pay rent in advance, even
where the written lease is void and the tenant is in from year to
year.^^ But a receipt showing that a particular installment of
the rent has been paid in advance, while it is usually strong
evidence of an agreement to pay rent in advance is never conclu-
sive on the tenant. The provision that rent is to be paid in ad-
vance should be inserted in the lease, where the lease is in writ-
ing. A promise to pay in advance made during the term, on a
separate consideration is nudum pactum and unenforcible.®*
Though evidenced by a writing an action of covenant or of debt
may be maintained for rent which is by the lease payable in ad-

92 Piatt V. Johnson, 168 Pa. St. by construction for the word
47. "from."

93 Sickels V. Shaw, 76 N. Y. se Finch v. Miller, 5 C. B. 428.
Supp. 319. 97 Lee v. Smith, 9 Ex. 662, 664,

94 Ellis V. Rice, 195 Pa. St. 42, 2 C. L. R. 1079, 23 L. J. Ex. 198,
45 Atl. Rep. 655. 2 W. R. 377, hinting also that the

95 Hopldns V. Helmore, 3 N. & void lease may be referred to in
P. 453, 8 A. & E. 463, 1 W. W. & order to ascertain how the rent
H. 386, 7 L. J. Q. B. 195, 2 Jur was to be paid.

856. The word "on" is substituted ^ Hasbrouck v. Winkler, 48 N.

J. Law, 431, 6 Atl. Rep. 22.

'526 LAW OP LANDLORD AND TENANT.

vance as soon as it is payable, and so too rent payable in ad-
vance may be distrained for at once on accrual.®'' But the lessor
cannot at once recover for use and occupation where the lessee
fails to pay rent payable in advance.^ He must sue on the cove-
nant to pay rent or he must sue in assumpsit if there be no ex-
press covenant. The landlord cannot recover for use and occu-
pation until after the use and ijccupation has been enjoyed. The
tenant who abandons the premises on the first day of the month,
if the rent for the month is payable in advance, is not relieved
from the payment of the rent by the landlord's subsequent ac-
ceptance of the surrender, before the expiration of the lease.-
So where rent is payable monthly in advance the landlord can
recover a full month 's rent though the tenant has been ousted for
nonpayment of rent before the end of the period.^ So, where
a lease provided that the rent should be paid in installments in
advance with a privilege in the landlord to re-enter for breach
of covenant without prejudice to any right which he might have,
and the landlord re-enter on the failure of the tenant to pay
rent, and also sued for the rent payable in advance the landlord
was entitled to a judgment for the whole amount of the install-
ment which was payable.* But while the tenant whose rent is
payable in advance cannot claim an abatement in the amount be-
cause of the fact that he is deprived of the use of his premises
without the fault of his landlord, yet if having paid his rent in
advance he is subsequently evicted by his landlord during the
the period for which he has paid, he may recover as part of the
damages for such eviction, the amount which he has paid for
the time he had been out of possession. A tenant who has paid his
rent in advance as required by the terms of his lease may, when

09 Russell V. Doty, 4 Cow. (N. Cases (N. Y.) 315, 3 How. Pr. (N.

Y.) 576, 571; Conway v. Stark- S.) 507.

weather, 1 Denio (N. Y.) 113,116, 3 McNulty v. Duffy, 59 N. Y.

2 Bac. Abr. tit. Distress (c). Supp. 592; Bernstein v. Heine-

Where rent is payable in advance, mann, 51 N. Y. Supp. 467; Kahn

the landlord may distrain at any v. Rosenheim, 68 N. Y. Supp. 856;

time between the commencement Stern v. Murphy, 102 N. Y. Supp.

of tlie rental period and its end. 797.

Witty V. Williams, 12 W. R. 755. 4 Ellis v. Rowbotham, 69 Law.

1 Angell V. Randall, 16 L. T. 4S9. J. Q. B. 379; (1900) 1 Q. B. 740,

aConklin v. Wliite, 17 Abb. New 82 Law T. (N. S.) 191, 48 Weekly

Rep. 423.

NATURE AND INCIDENTS OF RENT. 527

he is evicted during the rental period, recover the rent for that
portion of the term during which he has not enjoyed the pos-
session of the premises. In such an action however the tenant
may recover the rent which the landlord may have received
from another tenant to whom the landlord may have leased the
premises after the action has begun.^ After a lease is declared
to be void the liability of the tenant who has surrendered pos-
session to pay rent, in advance is at an end. If he has given
notes in advance for the payment of the rent the collection of
the notes cannot be enforced by the landlord ® as the considera-
tion has failed. If the proper application is made in an action
in which the lease is declared void the court, acting upon equi-
table principles will order the notes for rent to be delivered up
and cancelled, and may enjoin the landlord from negotiating the
same and punish him for contempt for his disobedience to its
mandate. Where the rent is payable in advance the tenant has
until the last minute of the day on which the rent falls due to
make payment so that an action begun on that day is prema-
ture.'^ If by a lease with a privilege of a renewal the rent is made
payable in advance and the lease is renewed, the rent in the new
lease will also be payable in advance in the absence of a pro-
vision to the contrary.^ The landlord will always be limited in
his recovery in an action for rent to the rent which is due at the
beginning of the action.^ Hence if an installment of the rent
falls due pending the action it cannot be included in a judgment
which is rendered in the action. A tenant, whose rent is payable
in advance, cannot recover money deposited by him with the
landlord as security for the rent which is in amount exactly
equal to a month's rent, where he has not paid his rent in ad-
vance though the landlord has. in consequence of the failure to
pay rent in advance, evicted him during the month and resumed
possession of the premises.^''

§ 335. The place for the payment of the rent. The tenant
must seek out the landlord and must pay or tender him the

5 Stautz V. Protzman, 84 111. s stose v. Heissler, 120 111. 433,
App. 434. 11 N. E. Rep. IGl.

6 Crockett v. Althouse, 35 Mo. » Stanley v. Turner, 68 Vt. 315,
App. 404. 35 Atl. Rep. 321.

7 Mack V. Burt. 5 Hun (N. Y.) lo Core v. Greenwald, 102 N. Y.
28; Insurance Co. v. Myers, 4 Supp. 752,

Lane. Bar. (Pa.) 151.

528 LAW OF LANDLORD AND TENANT.

rent where the tenant has covenanted to pay rent on a day cer-
tain and the place of payment is not specifically mentioned.^^
This rule is based upon the theory that the covenant of the lessee
to pay rent is a personal covenant which must be performed per-
sonally by the covenantor. But in the United States it has been
repeatedly held that in the absence of an express provision in
the lease to the contrary rent is payable by the tenant on the
land,^- though the rent be payable not in money but in specific
articles alone/~^ or in money or in specific articles at the election
of the landlord.^^ AVhere the rent is payable at either one of two
places both within the same county according- as the lessor may
direct, it is not necessary for the lessor to prove that he directed
the lessee to pay it at either place. If the lessor fails to direct
where the rent shall be paid the lessee may protect himself by a
payment or tender of the rent at either place. ^* If rent is pay-
able at some place in a city mentioned in the lease as the lessor
may direct, it is the duty of the lessee to ascertain where the
lessor desires the rent to be paid. The lessor need not prove in
an action against the tenant on the covenant to pay rent, that he
has directed the tenant where it shall be paid ; though if he has
not done so a tender of the rent at any place in the city where
the lessor could be found would be sufficient ;^^ or, perhaps the
rent would then be properly payable upon the land.^^

11 Haldane v. Johnson, 8 Ex. 11 N. Y. 80, rent was payable in
689, 22 L. J. Ex. 264, 17 Jur. 937. wheat, hens and "in two days' rid-

12 Livingston v. Miller, 8 N. Y. ing" to be delivered in Albany
283, 289, 11 N. Y. 80, 91; Walter while the farms for which the rent
v. Dewey, 16 Johns. (N. Y.) 222; was payable were located many
Hinter v. Le Conte, 6 Cow. (N. Y.) miles from that city. Under such
728; Hugh v. Lillibridge, 8 D. R. circumstances where the rent con-
(Pa.) 358, 22 Pa. C. C. 18.5. sists of ponderous articles expen-

12a Fordyce v. Hathorn, 57 Mo. sive to move about and care for,

120. it would seem but fair and just to

13 Walter v. Dewey, 16 Johns. permit a tenant to make a tender
(N. Y.) 222. or to hold himself ready to de-

14 Livingstone v. Miller, 11 N. Y. liver such articles on the land
80, 85. where the landlord neglects to in-

15 Lush V. Druse, 4 Wend. (N. dicate in what particular portion
Y.) 313. of a market town fifty miles away

icRemsen.v. Conklin, 18 Johns. he will be ready to receive the ar-

(N. Y.) 448. In this case and in tides on the rent day. See opin-

Lush V. Druse, 4 Wend. (N. Y.) ion of Selden, J., in Livingstone v.

313, and in Livingstone v. Miller, Miller, 11 N. Y. 80, on i)ages 87

NATURE AND INCIDENTS OF RENT. 529

§ 336. To whom rent should be paid. The tenant must pay
his rent to the landlord or to some person who is directly and ex-
pressly authorized by the landlord to receive it. Equity will
not relieve a tenant from his own error in p'aying his rent to a
person not entitled to receive it. The tenant cannot maintain a
bill to set off his erroneous payment against his landlord.^'
Under the general rule that the right to the payment of the
rent follows the reversion, and that the right to collect it passes
to the person who takes the reversion if a lessor owning the fee
reserves rent to himself and his wife, the reservation is good as
long as the lessor lives, but upon his death, the wife being a
stranger to the title, ceases to have any interest in the rent.^^
At the common laAv and by the ancient authorities a reservation
of rent to the heirs of the lessor during his life was invalid as
rent, and could not be distrained for, and doubtless even in mod-
ern times, under modern rules would be unenforcible as a con-
tract because of the uncertainty of the persons to whom it was to
be paid.^^ On the other hand, a reservation of rent to the heirs
of the lessor contained in a lease that was not to go into effect
until the death of the lessor, would be good and valid for the
reason that on his death the reversion would pass to them, and
they would be entitled to collect the rent by operation of law
aside from the terms of the lease.-'* The rent however it be
reserved follows the reversion. So where one seized in fee leases

to 92. Some of the English cases distinction is of little importance

have made a distinction as to and is only recognized in the case

the necessity for the payment of cited. The question as to the place

the rent on the land between a of the payment of rent arises only

lease in which the rent is re- where the non-payment results in

served generally, and a lease a forfeiture on a breach of condi-

where the lessee covenants to pay tion, or where the question of a

the rent without mentioning a par- valid tender of the rent arises in

ticular place where he shall pay an action of debt or covenant to

it; in the latter case the covenant recover the amount due.

has been regarded as a personal i7 Pratt v. Keith, 33 L. J. Ch.

covenant to pay a sum of money 592, 10 Jur. (N. S.) 305, 10 L. T.

on a day certain and the obliga- 15, 12 W. R. 394, 3 N. R. 264.

tion is on the covenantor to seek is Co. Litt. 99b, 213b; Whitlock's

out the person to whom he has Case, 8 Coke, 69b.

promised to pay the money wher- is Co. Litt. 99b, 213b; Gates v.

ever he may be in order to pay or Frithe, 2 Rolle's Abr. 447.

to tender him the money. Hal- 20 Co. Litt. 99b, 213b; Gates v.

dane v. Johnson, 8 Exch. 6S9. The Frithe, 2 Rolle's Abr. 447.
34

530 LAW OP LANDLORD AND TENANT.

for years reserving- rent during the term to the lessor, his execu-
tors, administrators, and assigns, and the lessee agrees to pay
it, the heir or devisee of the reversion on the death of the lessor
is entitled to the rent and may maintain an action on the cove-
nant accordingly.^^ Where a person owning the fee settles land
on himself for life, remainders to others, reserving to himself
a power to lease which he subsequently exercises reserving
rent to himself, his heirs and assigns, the remaindermen and
not the heirs shall have the rent.'^ The same rule applies
where the owner of the fee settles a life estate on another, re-
mainder to others with a power to lease in the life tenant.^^ The
principles upon which this construction is had is that the lease
though executed by a life tenant must be regarded in theory as
emanating from the person who created the power to lease and
that the remaindermen were in fact the assigns of the grantor
or devisor although not of the person i. e. the life tenant who exe-
cuted the lease. As to the heirs of the life tenant they are not
considered in relation to the reservation of rent at all as they
would never have any interest in the land. Even though the
life tenant in executing the lease under the power reserved rent
to himself and his heirs it is not material. A payment made to
a person who is not entitled to receive the rent on behalf of the
landlord, does not discharge the rent.-* Thus, a tenant who pays
his rent in advance to a receiver in a foreclosure proceeding
must pay the rent to the purchaser at the sale.-^ It is the duty
of the tenant to ascertain whether the person to whom he pays
his rent is his landlord, oT is duly authorized as his agent for the
fact that he pays it to one who is not his landlord, will not pre-
vent the latter from subsequently recovering it. A payment of
rent to the agent of the landlord duly authorized to collect it, is

21 Sacheverell v. Froggatt, 2 W. 316; Isherwood v. Oldknow, 3 M
Saund. 367a, 371, 2 Leu. 13, T. & Sel. 382; Berry v. White, Bridg
Raym. 213, 1 Vent. 148, 160, 2 man, 82.

Keble, 798, 819, 833, 839. See, also, 24 Williams v. Bartholemew, 1

Brook V. Biggs, 5 L. J. C. P. 143, Bos. & Pul. 326.

2 Bing. (N. C.) 572. 25 American Mortg. Co. v. Mer-

22 Greenaway v. Hart, 14 C. B. rick Const. Co., 100 N. Y. Supp.
340, 2 C. L. R. 370, 23 L. J. C. P. 561, 50 Misc. Rep. 464, holding also
115, 18 .Tur. 449, 2 W. R. 702. the purchaser cannot obtain such

23 Whitlock's Case. 8 Co. Rep. rents by an application in surplus
69b, 70b; Hotley v. Scot, Lofft, proceedings.

NATURE AND INCIDENTS OF RENT. 531

sufficient and a tender of the rent to such agent will also be
sufficient.-^ The agency to receive the rent thus created may be
revoked at any time by the landlord, provided the agency is not
coupled with an interest, but where a person has been regularly
receiving rents as agent of a landlord, and giving receipts there-
for, the notice of the revocation should be brought to the knowl-
edge of the tenant, and if this be not done the subsequent pay-
ment by the tenant to the agent will be binding on the landlord.
Where rent has been customarily paid in advance by the tenant,
the tenant who has paid in advance is not liable for that rent to
the grantee of the lessor, though the latter has no notice of such
payment, and the lease does not provide for advance payments.-^
But the general rule undoubtedly is that the voluntary payment
of rent by the tenant before it is due, does not operate to dis-
charge his liability, and if, before the rent is actually due, the
landlord transfers the premises, his grantee may recover from
the tenant rent accruing subsequently to the sale, though the
tenant has in fact paid it to the former owner.^* The payment
of the rent not yet due by the tenant to the lessor who has mort-
gaged the premises after making the lease is not good as against
the mortgagee who has notified the lessee before the rent became
due that it must be paid to him.-" So it has also been held that
if there be a clause for re-entry for non-payment of rent, rent
paid before the day when it was due under the terms of the
lease, will not avoid a forfeiture if proper steps to enforce it
had been taken.^** The same rule which renders the tenant liable
to a purchaser for rent paid in advance applies to the rights of
a purchaser at an execution sale. Thus where a tenant accepted
drafts on him by his landlord in anticipation of rent which was
not due at the time of the acceptance of the drafts, the tenant
was compelled to pay the rent which subsequently accrued to a
purchaser at a sheriff's sale, though the drafts accepted by the
tenant covered rent paid in advance for a period which had not
expired at the date of the payment.^^ All this is technical and is

26 Goodland v. Blewelt, 1 Camp. 20 De Nicols v. Saunders. 39 L.
477. J. C. P. 297, L. R. 5 C. P. 589, 22

27 Stone V. Patterson, 19 Pick. L^ T. 661, 18 W. R. 1106.
(Mass.) 476. 30 Cromwell v. Andrews, Cro.

28 William Clun's Case. 10 Coke, Eliz. 15.

127b. 31 Martin v. Martin, 7 Md. 368.

532 LAW OF LANDLORD AND TENANT.

based on strict common law principles for in equity an ad-
vanced payment made before the time fixed in the lease, will be
considered; and, if all the parties are before the court, the mat-
ter will be adjusted according to fairness and equity, and if the
rights of the parties permit the payment in advance will be re-
garded as a discharge of the debt for rent.^^

§ 337. Rent made payable to persons other than the land-
lord. Where the payment of rent is specially reserved by a
covenant, it may be reserved directly to the person entitled to
the fee. While it is competent and proper for rent to be re-
served and made payable by the lease to persons other than the
landlord, such reservation does not in strictness of language
create rent, and the person to whom this reservation is made
cannot maintain a distress though such person, however, may
maintain an action of debt against the tenant for the rent,^^ and
in modern times he may sue the tenant for rent on the covenant
without proving any express assignment of the rent to him.^*
Such leases come under the general rule of the law of con-
tracts that where one by an unsealed contract makes a promise
to another for the benefit of a third person, the latter may re-
cover against the promisor though no consideration has moved
from him.^^ This rule is confined in its operation to contracts

32 Rockingham v. Penrice, 1 S. After the period agreed on has ex-
W. Rep. 346. pired the tenant is under no obli-

33 Gilbert on Rents, 24. gation, either express or implied,
3* Toan V. Pine, 60 Mich. 385, 27 to pay his rent to the third per-

N. W. Rep. 557; Frontin v. SmalL, son and he may thereafter pay his

2 Ld. Raym. 1418; During v. Far- rent to his landlord where he re-

rington, 1 Mod. 113. If the lessee mains in possession. Hodges t.

undertakes to pay an annual sum Waters, 124 Ga. 229, 1 L. R. A.

by his deed, such undertaking con- (N. S.) 1181, 52 S. E. Rep. IGl.

stitutes a right to it, and the law ss Hendrick v. Lindsay, 93 U. S.

in all cases gives a remedy ade- 143, 23 Law Ed. 855; Thompson v.

quate to the right. A tenant who Dearborn, 107 111. 87; Carnahan v.

has expressly agreed to pay the Tousey, 93 Ind. 561; Carnegie v.

rent to a third person for a period Marrison, 2 Met. (Mass.) 381;

which is specified in the lease or Cubberly v. Cubberly, 33 N. J. Eq.

some other agreement will be 82; Lawrence v. Fox, 20 N. Y. 2G8;

bound to do so. The promise if Barker v. Bradley, 42 N. Y. 316;

it is based upon a sufDcient con- Little v. Banks, 85 N. Y. 258;

sideration may be enforced by the Litchfield v. Flint, 104 N. Y. 543,

third person against the tenant. 11 N. E. Rep. 58; Schneider v-

NATURE AND INCIDENTS OF RENT. 533

not under seal. For a contract nnder seal cannot generally be
sued on by a person for whose benefit it was made unless be is
a party thereto.^® The payment of the rent to a stranger with-
out the consent or request of the landlord does not bind the land-
lord.^^ But where a landlord has by his written order to pay
rent to athird person acknowledged that such person is en-
titled to receive the rent and the tenant, relying upon such con-
duct, has actually paid the rent to the third person, the landlord
is estopped to recover the rent from the tenant. ^^ If the land-
lord directs a tenant to pay rent to some third person to whom
the landlord is indebted and the tenant, for any reason, fails to
do so, the landlord may recover the rent from the tenant. Thus,
where by the terms of a lease the lessee is to pay the rent in
discharge of the lessor's debts to certain creditors of the lessor
who are named, and the lessor directs him to do so and he fails
either to pay the rent to the creditors or to promise them pay-
ment, and they do not accept this provision as a discharge of
their debts, the title to the rent remains in the lessor and the
lessee is his debtor for the full amount of rent unpaid.^^ But
where a tenant by the implied consent of his landlord, pays the
rent to a third party with whom the landlord is in litigation over
the title to the rent, the landlord is thereafter precluded from
recovering from his tenant the rent so paid.**" An agreement by
a landlord that the tenant may retain a certain portion of each
year's rent until a debt due from the landlord to the tenant is
paid which is contained in a writing separate from the lease,
may be pleaded at law in an action against the landlord on the
debt as a release pro tanto. This, however, is only for conveni-
ence as the agreement is not a release. And where the tenant
having made such an agreement, specifically bequeathes his term,
his bequest does not carry to the legatee of the term the benefit
of the agreement but that passes to the executors of the tenant

White, 12 Oreg. 503, 8 Pac. Rep. '■'' Gibbons v. Hamilton, 33 How.

652. Pr. (N. Y.) 83, 86.

8« Millard v. Baldwin, 3 Gray ^^ Winterink v. Maynard, 47

(Mass.) 484; Crowell v. Currier, 27 Iowa, 366.

N. J. Eq. 152. Contra, Rogers v. •«' Burt v. Hurlbut, 16 Vt. 292,

Gosnell, 51 Mo. 466; Bassett v. 293.

Hughes, 43 Wis. 319. •»«> Winterink r. Maynard, 47

Iowa, 366.

534 LAW OF LANDLORD AND TENANT.

who may interpose it as a set-off in any action brought against
them on the covenant of their testator to pay rent.^^

§ 338. Rent payable in instalments. Instahnents of rent
may be recovered as they fall due, or the landlord may let the
instalments accumulate and sue for several in the aggregate or
he may sue for each instalment as it falls due. He is not re-
quired to wait for any particular time to sue.*^ The general
rule of the law of contracts that where money is to be paid in
instalments, some of which are due after something has been
done and others are due before a thing has been done, the doing
of the latter by the payee is not a condition precedent to the
payment of the money, is applicable to a case where rent is
payable in instalments and the lessor has expressly covenanted
to perform some act under the lease which either expressly or
of necessity may or must be done after the payment of an in-
stalment of rent. A lessor may sue at once for an instalment
of rent which is due on the first or any other day of the month
and the lessee cannot defeat a recovery bj^ showing that the les-
sor had agreed to furnish heat or steam power or to repair or
to improve during that month. He cannot make the lessor wait
for the rent until the month is ended, in order to ascertain
whether the lessor will perform his covenant, for M'here the rent
is expressly payable in advance, the lessee is conclusively pre-
cluded from claiming that the performance of any act which is
to be done thereafter is a condition precedent to his liability
for the payment of the rent in advance.*^ A judgment in an ac-
tion to recover one instalment of rent, though it shall dismiss
the action upon the merits, is not of necessity a bar to a subse-
quent action to recover another instalment Avhicli falls due there-

41 Ledger v. Stanton, 2 John. & Racke v. Anheuser Biisch Brewing

H. 689, 9 W. R. 848. Where a Ass'n (Tex.), 42 S. W. Rep. 774.

lease of a husband's lands pro- The instalments carry interest

vided that the rent accruing after from the dates upon which they

his death should be paid to his fall due. Lane v. Ruhl, 103 Mich,

wife for her support, such provi- 38, 45, CI N. W. Rep. 347.
sion was invalid as an attempted ■•3 Hurliman v. Seckendorf, 10

testamentary devise, so that the Misc. Rep. 549, 550, 31 N. Y. Supp.

wife was not entitled to the rent 443, 444; Trenkman v. Schneider,

so accruing. Murray v. Cazipr, 23 56 N. Y. Supp. 770, 772, 26 Misc.

Ind. App. 600, 53 N. E. Rep. 476. Rep. 695, reversing 51 N. Y. Supp.

"2 Consolidated Coal Co. of St. 232, 23 Misc. Rep. 336.
Louis V. Peers, 39 111. App. 453;

XATURE AND INCIDENTS OF RENT. 535

after. The prior judgment may be a bar if it dismisses the ac-
tion upon a defence which can properly and legally be pleaded
in an action on a subsequent instalment. This would be the case
where the first action was dismissed upon the ments because
of the absolute invalidity of the lease and particularly if the
validity of the lease were the only material issue in the first
action.** The tenant can then in the subsequent action for an
instalment thereafter accruing, plead that the lease has been
pronounced invalid in the prior action, and that he has sur-
rendered it, and no recovery can be had against him. If, how-
ever, the defence in the first action was one that did not go
to defeat the whole of the plaintiff's case, the judgment in favor
of the tenant in an action for the first instalment cannot be
pleaded in the subsequent action. For example if the first
action were defeated because the court was satisfied that there
had been a surrender by the tenant and an acceptance by the
landlord, the judgment therein would be a bar to an action on
a subsequent instalment, but the defense of payment or of a
preach of some covenant might be a good defense in one action
and yet amount to nothing as to an action on some subsequent
instalment.*^ But, if the first action for an instalment was de-
feated upon a ground of defense which denied the right of ac-
tion and a trial was had upon the merits of that defense, a judg-
ment dismissing the first action could be pleaded in bar to any
subsequent action brought for a subsequent instalment payable
under the same lease.*® A judgment in an action for an instal-
ment of rent does not bar an action brought thereafter to recover
prior instalments, when the latter action was pending at the time
the action in which the judgment was rendered was commenced,
though it was discontinued before the judgment in that action
was rendered.*^ A judgment by default in an action for rent, the

44Dolan V. Scott, 25 Wash. 214, mond Plate Glass Co. (Ind. App.

65 Pac. Rep. 190. * 1906), 77 N. E. Rep. 412.

*5 The rule that in an action for *<"' Danziger v. Williams, 91 Pa.
an instalment of rent due a jiidg- St. 234; Burdick v. Cameron, 42
ment that a lease is valid or other- N. Y. Supp. 78; McClung v. Con-
wise is conclusive in an action for diet (Minn.), 6 N. W. Rep. 399.
a subsequent instalment does not ^^ Kieley v. Kahn, 98 N. Y. Supp.
apply to a lease under which tho 774. In an action for rent a prior
tenancy may he terminated at the judgment and record for rent un-
end of any year. Snowhill v. Dia- der the same lease is not conclu-

536 LAW OF LANDLORD AND TENANT,

record in wbicli action does not show the nature of the tenancy,
whether by the year or by the month, that not being necessary
to be shown in the action is not res adjudicuta in a subsequent
action or summaiy proceeding by the landlord to dispossess
the tenant.*^ A judgment for one instalment of rent due on a
lease for a year is res adjudicata to all defenses which might
have been urged in the action. It follows, therefore, that the
tenant in an action to recover a subsequent instalment cannot
urge an eviction or a trespass which might have been properly
urged in the prior action.*®

§ 339. The tender of the rent by the lessee. If the rent is
payable on a day certain, the tenant is bound to make a tender
on the precise day,^° If, having made a legal and proper ten-
der the landlord refuses to accept the tenant is discharged from
the consequences of a failure to pay his rent. The landlord
cannot then recover the possession of the premises for non-pay-
ment of the rent. A mere offer to pay the rent is not a tender.
The tenant must actually produce the money and hand it to the
landlord or place it where he can easily receive it unless the land-
lord by some act or declaration on his part shall conclusively
show that he does not mean to accept it.^^ The production of the
money is dispensed with in a case where the tenant comes to the
landlord with a voucher in his hand to pay the rent, and the land-
lord on its being read to him declines to take i" and states that it
will be unnecessary to produce the money." The tenant must

sive as to the length of the term 637; Currie v. White, 45 N. Y. 822,

where the judgment and record 833; Finch v. Brooli, 1 Bing. (N.

do not indicate the nature of the C.) 259; Thomas v. Evans, 10

controversy. Dickey v. Heim, 48 East, 101.

Mo. App. 114. ^2 Weetmoreland Cambria Nat.

48 Rothstein v. Steinbugler, 102 Gas Co. v. De Witt, 130 Pa. St. 235.

N. Y. Supp. 470. 18 Atl. Rep. 724. An oiler by the

40 pierson v. Hughes, 102 N. Y. tenant to deliver to the landlord

Supp. 528. sufficient merchandise to pay the

50 Dewey v. Humphrey, 5 Pick. rent was held good in Browne v.
(Mass.) 187. Unless the day is Clarke, 35 La. Ann. 290. The ten-
Sunday when he may legally ten- der of certain articles in which
der the rent on the next day. rent is to be paid on the rent day
Warne v. Wagoner (N. J. Ch. is a good tender, though their
1888), 15 Atl. Rep. 307. real value then was greater or le!>3

51 Hornby v. Cramer, 12 How. than their price which was speci-
Pr. (N. Y.) Rep. 490, 494; Bake- fied in the lease. Heywood v. Hey-
»ian V. Pooler, 14 Wend. (N. Y.) wood, 42 Me. 229, 66 Am. Dec. 277.

NATURE AND INCIDENTS OF BENT. 637

tender the amount of rent due in lawful money. An offer of a
cheek or an offer to draw a check in payment of the rent is not
sufficient.^^ A tender ought to be made directly to the landlord
in person though it may be a valid tender if it is made to an
agent of the landlord who is authorized to receive the rent.^* The
tender must be absolute and asking for a receipt will invalidate
it as a tender.^^ A tender of rent with the words "here is your
quarter's rent" is a good tender as it does not require the land-
lord to make any admission of the amount due as a condition of
its receipt by him.^® An absolute refusal by a landlord to re-
ceive the rent tendered is a waiver of the tender.^^ If the land-
lord refuses to receive the rent upon a ground specified, he can-
not subsequently raise any other objection which had he then
stated it, might have been obviated by the tenant.^^ The rent
having been tendered and refused as not having been tendered
in time, the objection cannot afterwards be made that it was not
tendered in money .^* The tender of course does not pay the
debt but merely stops the running of interest and saves the ten-
ant from the consequences of a forfeiture which may result from
the non-payment of the rent. A tender of a sum of money,
w^hich is less than the rent demanded by the landlord upon the
condition that a receipt in full for rent shall be given or that it
shall be accepted in full pa^^ment of all rent due, is not a valid
tender. If the tenant shall insist upon a receipt in full the ten-
der may be refused as insufficient and invalid and the landlord
may then insist upon the unconditional pajnnent of the sum he
demands.®" A tender by the tenant of the rent which is due with

53 Hague V. Powers, 2& How. Pr. v. Miller, 5 C. B. 428, 435; Sutton

(N. Y.) 17, 30 Barb. (N. Y.) 42; v. Hawkins, 8 Car. & P. 259.

Bank, etc., v. Trumbull, 35 How. ss Jones v. Bridgman, 39 L. T.

Pr. (N. Y.) 8, 4 Abb. Pr. (N. Y.) 500.

Rep. 83, 53 Barb. (N. Y.) 450. s- Stone v. Sprague, 20 Barb. (N.

e^Hargous v. Labens, 3 Sandf. Y.) 509, 515; Dana v. Fiedler, 1

(N. Y.) 313; Wilmot v. Smitb, 3 E. D. Smith (N. Y.) 463; Slinger-

Car. & P. 453; Kirton v. Braitb- land r. Morse, 8 Johns. (N. Y.)

waite, 1 Mee. & Wei. 310; Bing- 474, 476; Everett v. Saltus, 15

ham V. Allport, 1 N. & M. 398. Wend. (N. Y.) 474.

65 Roosevelt v. Bull's Head ss Hull v. Peters. 7 Barb. (N. Y.)

Bank, 45 Barb. (N. Y.) 579, 583; 331, 7 Abb. Pr. (N. S.) 244.

Griffith V. Hodges, 1 Car. & P. 419; 59 Duffy v. O'Donovan, 46 N. Y.

Glascott V. Day, 5 Esp. 48; Finch 223.

•w Thayer v. Brackett, 12 Mass.

538 LAW OP LANDLORD AND TENANT,

interest ®^ and costs to the date of the tender, when made pending^
a dispossessory action which is based upon the default of the ten-
ant in the payment of rent, will defeat the action. If the tender
is not accepted by the landlord the money should be paid into
court at once and if this be done pending the action and before
answer, it will stop the running of costs in case the landlord
refuses to accept the money and the judgment is rendered in his
favor. The general rules applicable to a tender pending an ac-
tion will be recognized in the case of a tender of rent made by a
tenant who is being sued in a possessory action, subject to the
provisions of the local statutes. The plea of tender must
show that interest on the rent was included in the amount ten-
dered and that the tenant had the money in court.**" It is the
duty of the tenant to seek the landlord in order to pay or to ten-
der the rent. He will be allowed a reasonable time to find him
where he has frequently attempted to see him and the landlord
has intentionally avoided him.*'^ A tender or offer of payment
of the rent may extinguish the tenant's liability. A statute
which provides that where a tender is refused, the money may be
deposited in the name of the creditor in a bank, notice of the de-
posit given to him, will be strictly construed. The mere de-
posit of rent in the bank after it is demanded by the landlord,
and a refusal and neglect to pay are not a fulfilment of the re-
quirements of the statute, unless it is proved that the money was
offered to the landlord, or that he was notified of the deposit or
having knowledge of it acquiesced in it.***

§ 340. Apportionment of rent between successive landlords.
In the absence of an express agreement, or a statute permitting
apportionment, there is no apportionment of rent, which by the

450, 452; Loring v. Cooke, 3 Pick. C2 Ralph v. Lomer, 3 Wash. St.

(Mass.) 48, 51; Brooklyn Bank v. 401, 28 Pac. Rep. 760.

De Graw, 23 Wend. (N. Y.) 342; 63 Young v. Ellis, 91 Va. 297, 21

Hepburn v. Auld, 1 Cranch (U. S.) S. E. Rep. 480.

321; Griffith v. Hodges, 1 Car. & 64 Owen v. Herzikoff (Cal. App.

P. 420; Jennings v. Magor, 6 Car. 1906), 84 Pac. Rep. 274. In Illi-

& P. 237; Peacock v. Dickenson, 2 nois a tender of the rent to the

Car. & P. 51; Chenimant v. Thorn- landlord or his agent within the

ton, 2 Car. & P. 50. five days provided by the statutoiy

61 Ralph V. Lomer, 3 Wash. St. notice to quit will defeat the for-

401, 28 Pac. Rep. 401. foiture of the lease. Lasher v.

6ia George v. Mahoney, 62 Minn. Graves, 124 111. App. 646.
370, 64 N. W. Rep. 911.

NATURE AND INCIDENTS OF RENT. 539

terms of the lease is payable at certain intervals. Annual or
quarterly payments of rent are not, at common law. apportion-
able between the parties where the reversion is transferred by a
lessor between the days for the payment of the rent. There is
no apportionment as respects time and the right to collect the
next annual or quarterly payment of rent which becomes due
passes to the grantee of the reversion."^ To apportion the rent
would, it has been said, expose a tenant to several processes of
distress for a thing which was originally entire and he ought not
to be compelled to pay rent in different parcels and to several
landlords when he contracted to pay one entire sum as rent to
one person."*' Hence if a tenant for life or any tenant who has a
terminable estate dies but one day before the rent reserv. T. in
a lease by him becomes due the rent was lost at common law for
there is none who can collect it after his death. The executor of
the lessor could have no action on the covenant to pay rent as it
was not broken during the life of the lessor and as the covenant to
pay rent runs with the land the executor could have no action for
a breach after the death of the lessor. The executor of the life
tenant cannot sue for use and occupation for there was a lease
between the parties. Nor on the other hand could the reversioner
or remainderman recover the rent which accrued during the life
of the life tenant so that under such circumstances the lessee

65 English V. Key, 39 Ala. 113; Dec. 493; Russell v. Fabyan, 28

Clarke v. Cobb, 121 Cal. 595, 54 N. H. 543, 545; Marshall v. Mose-

Pac. Rep. 74, 77; Peck v. Northrop, ley, 21 N. Y. 280; Mayor of New

17 Conn. 217; Sampson v. Grimes, York v. Ketchum, 67 How. Pr. (N.

3 Har. (Del.) 82; Breeding v. Tay- Y^) 161, 166; Van Wicklen v. Paul-

lor, 13 B. Mon. (Ky.) 477; Robin- sen, 14 Barb. (N. Y.) 654; Zule v.

son. V. Deering, 56 Me. 357; Cam- Zule, 24 Wend. (N. Y.) 76, 35 Am.

eron v. Little, 62 Me. 550; Ander- Dec. 600; Bank v. Wise, 3 Watts

son V. Bobbins, 82 Me. 422, 425, 19 (Pa.) 394; William Clun's Case, 10

Atl. Rep. 910, 8 L. R. A. 568; Mar- Coke, 127, Cro. Jac. 310; Paget v.

tin V. Martin, 7 Md. 368, 61 Am. Gee, Ambl. 198; Burns' Justice,

Dec. 364; Earle v. Kingsbury, 3 Distress, sec. 18; Jenner v. Mor-

Cush. (Mass.) 206, 208; Dexter v. gan, 1 P. Wms. 392; Edwards v.

Phillips, 121 Mass. 178, 23 Am. Countess of Warwick, 2 P. Wms.

Rep. 261; Adams v. Bigelow, 128 176; Hawkins v. Kelly, 8 Ves.

Mass. 365; Emmes v. Feeley, 132 "308; Countess of Plymouth v.

Mass. 346; Fitchburg Man. Co. v. Throgmorton, 1 Salk. 65; Birch v.

Melvin, 15 Mass. 268; Wood v. Wright, 1 T. R. 378.

Partridge. 11 Mass. 493; Perry v. cc Stewart v. Perkins, 3 Oreg.

Aldrich, 13 N. H. 343, 350, 38 Am. 508, 511.

540 LAW OF LANDLORD AND TENANT.

paid no rent.^ The rule of the common law holding against
an apportionment of the rent though in many cases working
injustice to the ownei-s of reversions was scrupulously followed
in equity.^^ It has, however, been abrogated by express stat-
utes in almost every state in the Union. These statutes though
in derogation of the common law are usually construed liber-
ally with a view to the peculiar exigencies of modem life and
present conditions. They are not retroactive and generally apply
only to leases which are executed subsequent to their passage.®^
The English statute '^° applies to cases in which the interest of
the person interested in the rents is terminated by his death, or
by the death of another person, but it does not apply to the case
of a tenant in fee nor does it provide for the apportionment of
rent between the real and personal representatives of such per-
sons whose interest is not terminated at his death. '^^ Money which
is paid as rent will be apportioned after the death of the lessor
though by his death the lease became void and the tenants are sim-
ply tenants at will or at sufferance. This principle is applicable
as regards the executor of a life tenant who has made a lease for
years which is terminated by his death,'^^ or to a lease by a tenant
in tail.'^^ Where the lessor owns land in fee and land for life, and
he leases both lands for a term at an entire rent and the lease of
the land which he holds for life, is void on his death because he
had no power to make it though not for the land which he held in
fee, the rent may be apportioned.^* A lease in which an option to
purchase during the term is conferred upon the lessee, is a

8T At common law, if a tenant «;> Mayor v. Ketchum, 67 How.

for life died before the day on Pr. (N. Y.) 161, 167.

■which the rent became due, where 704 and 5 Will. 4, c. 22, § 2.

the lease determined by the death 71 Brown v. Amyot, 3 Hare, 173,

of the tenant for life, his execu- 13 L. J. Ch. 232, approved in Beer

tors could not claim an apportion- v. Beer, 12 C. B. 60, 21 L. J. C. P.

ment of the rent, nor could the re- 124, 16 Jur. 223.

mainderman or reversioner claim 72 Hawkins v. Kelly, 8 Ves. 308.

that part of it which accrued dur- 73 Whitfield v. Pindar, cited

ing the life of the tenant for life. Hawkins v. Kelly, 8 Ves. 308;

Com. Dig. Rent, 3 Cruise, 350. Strafford v. Wentworth, 9 Mod. 21,

68 Mayor of New York v. Pre. Ch. 555, 1 P. Wms. 180; Rock-

Ketchum, 67 How. Pr. (N. Y.) ingham v. Penrlce. 1 P. Wms. 179.

161, 167. '* Doe d. Vaughan v. Meyler, 2

M. & S. 276, 15 R. R. 244.

NATURE AND INCIDENTS OF EENT. 54:1

lease which is dependent as to its duration upon a contingency.
If the lessee exercises the option the lease is at an end. Where
he does so during a rental period, he remains liable for the rent
for that portion of the period which has expired, where a stat-
ute provides that where land is held by a person under a lease
which terminates upon a contingency^ the landlord may recover
a part of the rent in proportion to the time which has expired.'^^
§ 341. Apportionment among the several assignees of the
lessor. Where a tract of land while it is under lease is severed
and divided by the lessor conveying a part thereof to a third
person, or all of it to several grantees, the rent which becomes
due under the lease will be apportioned among the several
owners. The right of the owner thus to divide his land and to
sell it without the consent of the tenant in modem times at
least, is absolute. '''' The apportionment of rents between sep-
arate parcels of a land which are leased at an entire rent, when
they are separately conveyed, should be determined by their
respective value and not by their respective size.' ' In an Eng-
lish case it has been held that an agreement by which the owner
of two houses which are leased at an entire rent in conveying,
one of them apportions the rent with the grantee of the house

T5 Withington v. Nichols, 187 145; Van Rensselaer's Ex'r v. Gal-
Mass. 575, 73 N. E. Rep. 855. lup, 5 Denio (N. Y.) 454; Van

T6 Crosby v. Loop, 13 111. 625, Rensselaer v. Bradley, 3 Denio

627; Anderson v. Robbins, 82 Me. (N. Y.) 135, 141; Nellis v. Loth-

422, 425, 19 Atl. Rep. 910, 8 L. R. rop, 22 Wend. (N. Y.) 121, 34 Am.

A. 568; Worthington v. Cooke, 56 Dec. 285; Reed v. Ward, 22 Pa.

Md. 51, 54; Emmes v. Feeley, 132 St. 144, 149; Linton v. Hart, 25

Mass. 346; Newall v. Wright, 3 Pa. St. 193, 196, 64 Am. Dec. 691;

Mass. 138, 3 Am. Dec. 98; Keay v. Salmon v. Mathews, 8 Mee. & Wei.

Goodwin, 16 Mass. 1; Montague v. 825; Moodle v. Garnance, 3 Bulst.

Gay, 17 Mass. 439; Cheairs v. 153; West v. Lassels, Cro. Eliz.

Coats, 77 Miss. 846, 850, 28 So. 851; Bliss v. Collins, 5 Barn. &

Rep. 728; Boston & Worcester R. Aid. 876; Rivis v. Watson, 5 M.

R. Corp. V. Ripley, 13 Allen & W. 255; Ehrman v. Mayer, 57

(Mass.) 421; Earle v. Kingsbury, Md. 612; Church v. Seeley, 110 N.

3 Cush. (Mass.) 206, 209; Biddle Y. 457; Ards v. Watkins, Cro.

V. Hussman, 23 Mo. 597, 598, 602; Eliz. 637, 651; Campbell's Case, 1

Farley v. Craig, 11 N. J. Law, 2C2, Roll. Abr. 237; Moody v. Garnon,

273; Rj-^erson v. Quackenbush, 26 3 Bulst. 153.

N. J. Law, 236; Gribble v. Toms, tt O'Connor v. O'Connor, 19 W.

70 N. J. Law, 522, 57 Atl. Rep. 144, R. 90.

542 LAW OF LANDLORD AND TENANT.

conveyed but to which the lessee is not a party, is not binding
on the lessee inasmuch as he was not a party to it/* Elsewhere
it has been held that the consent of the tenant may be dispensed
with in making the apportionment, though in no case can the
rent as apportioned among the several lessors exceed in amount
the sum total of the rent which is mentioned in the original
lease."^ Hence a reversioner may subdivide his land and sell it
in parts to many persons and a tenant of the whole must divide
his rent and pay to each grantee his due proportion of the
same. So, in case the lessor shall die and his land descend to
two or more heirs as tenants in conmion, the lessee must pay
to each heir that proportionate part to which he is entitled as
an heir but no more.^" This involves no hardship to the. tenant
for, though each new owner of the reversion may sue him and
distrain separately for the portion of the rent due him, the ten-
ant msiy avoid this by paying his rent promptly. If the tenant
cannot agree with the several heirs or reversioners upon the
apportionment it may be made by the court or jury according
to the values and not according to the size of the several por-
tions. "Where rent is apportionable on a sale of a jiart of the
land by the lessor, an action by him need not be limited to the
part he owns but he may sue for the whole and he may recover
as much as the jury find him entitled to and he will be barred
of the residue by the payment. ^^

'» Bliss V. Collins, 5 B. & Aid. si "Apportionment, in cases

876, 1 D. & R. 291, 24 R. R. 601. where it is permitted, is for the

Ts The eviction of a tenant by a benefit of the owners of the rent

grantee of his landlord from that or the reversioners. Ordinarily it

portion of the premises which has is against the interest of tenants,

been conveyed by the landlord, and the omission to apportion is

does not prevent the landlord from not a matter of which they can

recovering the rent from the ten- complain. If the several owners

ant for that portion of the prem- of a lease are disposed to treat it

ises which the landlord still owns as an entire contract, the tenant

and the tenant still occupies. cannot object and insist that it

Gribble v. Toms (N. J. Law, 1904), shall be divided into several con-

57 Atl. Rep. 144. tracts, unless something has trans-

«o Reed V. Ward, 22 Pa. St. 144, pired to relieve the tenant from a

149; Bank of Pennsylvania v. just liability to pay the whole

Wise, 3 Watts (Pa.) 404; Salmon rent. This general principle is de-

V. Mathews, 8 M. & W. 827; Bos- ducible from the cases upon the

ton & Worcester R. Co. v. Riley, subject." People ex rel. Grissler

13 Allen (Mass.) 421. v. Dudley, 58 N. Y. 323. 333. An

NATURE AND INCIDENTS OP RENT.

543

§ 342. Apportionment among the assignees of the lessee.

Where a lessee subdivides his terra and assigns all of it thus
subdivided to two or more assignees as tenants in common, and
not as joint tenants, the liability to pay rent will be apportioned
among the assignees according to the value of their respective
interests. Each assignee must then pay the lessor only so much
of the rent reserved by the lease as his share bears to the lessee's
whole interest in the premises.*^ The proportion of the rent
which the various assignees must pay is to be determined by the
relative values of the shares which each assignee has the right
to occupy, as compared with the whole. If there is no proof
of the relative value of the various parts of the premises, they
will be presumed to be equally valuable and the rent will be
apportioned among the assignees according to the quantity of
the land each takes.^^ The lessor may sue each of the assignees
in debt or covenant for his share ^* of the rent where the as-
signees take as tenants in common. The landlord need not join
all the assignees as defendants. In conclusion it may be said
that though rent is payable in money it may be apportioned
among the assignees.®^

among the grantees of the land-
lord occurs where the service or
proceeds of the rent are not ca-
exception to the rule stated in the
text by which rent is apportioned
pable of being divided, as when,
for example, the tenant is to de-
liver to the landlord a horse, for
the use of the land on the first day
of each month. In such case if
the landlord shall buy back a por-
tion of the leased premises or
shall distribute his reversion
among several or let it be dis-
tributed by operation of law the
rent ceases. While if the tenant
shall sell or assign a certain por-
tion to strangers the rent is mul-
tiplied to the several assignees of
the tenant who are obligated to
deliver a horse to the landlord on
the first day of each month. Litt.
222, 1 Inst. 149a, b; Gilbert, Rents.

165-167; Talbot's Case, 8 Co. Rep.
102b, 104.

82 Babcock v. Scoville, 56 111.
461; Daniels v. Richardson, 22
Pick. (Mass.) 565; Pingrey v.
Watkins, 15 Vt. 479; Van Rens-
selaer V. Bradley, 3 Denio (N. Y.)
135, 141, 45 Am. Dec. 451; Astor
V. Miller, 2 Paige Ch. (N. Y.) 78.

S3 Van Rensselaer's Ex'rs v. Gal-
lup, 5 Denio (N. Y.) 454. 465; Van
Rensselaer v. Jones, 2 Barb. (N.
Y.) 643. See, also. Main v. Davis,
32 Barb. (N. Y.) 461, and St. Louis
Public Schools v. Boatmen's Ins.
& Trust Co., 5 Mo. App. 91.

^^ Van Rensselaer v. Bradley, 3
Denio (N. Y.) 135, 45 Am. Dec.
451; Van Rensselaer's Ex'rs v.
Gallup. 5 Denio (N. Y.) 454, 464;
Merceron v. Dawson, 5 B. & C.
479.

^'> An entire rent service being

544 LAW OF LANDLORD AND TENANT.

§ 343. The liability of testamentary trustees for rent. Trus-
tees to whom a testator has devised his leasehold estates in trust
to permit certain persons to enjoy them for life, are liable on
the covenants to repair and to pay rent. The beneficiaries of the
trust are not liable on the covenants to the lessor unless the will
expressly declares that they shall take it subject to pajnnent of
the rent and to the performance of covenants to repair by them.
And where the testator has left successive life estates in lease-
holds, and has devised all the remainder of his personal estate
to the trustees for the purposes of his will, it has been conclu-
sively presumed that he intended the trustees to stand in his
place so far as any liability for the performance of the covenants
in the leases is concerned.*^

§ 344. The payment of rent by an under-tenant to the orig-
inal lessor. A person who having no interest in a leasehold,
pays taxes and rent on the same, cannot recover against the
lessee the money paid by him unless the payment was made to
protect his own rights, or unless some fraud was practiced upon
him by the lessee. ^^ There being neither privity of contract
nor of estate between under-tenants and the original lessor, the
latter cannot recover rent, nor for use and occupation, from the
under-tenants while the first lessee is in possession. But an
under-tenant who is in danger of being ousted because of the
default of his lessor in the payment of rent or because of a
breach of any covenant in the original lease may pay his rent
to the original lessor and deduct the amount thus paid by him
from what he owes his immediate lessor. Where the original
lessor has an immediate right to enter for the default of the
intermediate lessee, the sub-lessee need not wait for the rent to
be distrained for or even demanded or for a suit to be threat-
ened or begun against him.^^ An under-tenant who to protect

indivisible is not apportionable 1 Ch. 61, 3 R. 27, 67 L. T. 702, 41

among the assignees of the lessee W. R. 87.

and on an assignment to several st sire v. Long Acre Square

each must render the same serv- Bldg. Co., 50 Misc. Rep. 29, 100 N.

ice. Van Rensselaer v. Bradley, 3 Y. Supp. 307.

Denio (N. Y.) 135, 143. ss Peck v. Ingersoll, 7 N. Y. 528,

86 Re Courtier: Coles v. Cour- 529; Lageman v. Kloppenburg, 2

tier, 55 L. T. Rep. (N. S.) 574, 34 E. D. Smith (N. Y.) 126; Kidney

Ch. Dlv. 136; Baring, In re: Jeune v. Rohrback, 3 N. Y. St. Rep. 574;

V. Baring, 62 L. J. Ch. 50; (1893) Collins v. Whilklin, 3 Phila. (Pa.)

NATURE AND INCIDENTS OF EENT. 545

his own possession or to avoid a distress, pays the rent due by
his lessor to the original lessor may plead such payment in an
action brought against him by his lessor to recover rent due
under the sublease. His payment of the ground, rent is no more
voluntary where he may be ousted or distrained for the rent
due by his lessor than if he had paid it on the demand of a
highwayman. So, if the under-tenant is in danger of a dis-
tress or an ouster, the fact that he is granted a little time in
which to pay does not render his payment voluntary.^^ He
may pay at once. If he pays the head lessor more than he
owes his own lessor, the under-tenant may recover from the
latter in assumpsit.®^ Such payments by an under-tenant
will operate not only as a discharge of the rent which has
accrued but also a^ a discharge in toto or pro tanto of rent
which is accruing,®^ and his lessor cannot thereafter either by
distress or otherwise compel him to pay him the rent. The same
principles are applicable to the payment of an annuity by the
tenant which was granted out of the lands before they were
demised to the tenant,®" and to the payment of the interest due
on a mortgage which was paid by the tenant at the request of
the landlord,**^ and to the payment of the principal due on a
mortgage which was prior to the lease and which the tenant
paid to protect his possession.®* And the subtenant may inter-
pose the same defense of payment to the original lessor against
the assignee of a non-negotiable note which he has given his
lessor for the rent as he could against his lessor, though the

102; Waddilove v. Barnett, 2 Bing. E. 37, 21 R. R. 569, holding also

N. C. 543; Brook v. Biggs, 2 Bing. that the tenant should not plead

(N. C.) 572. his payments as a cross demand,

89 Sapsford v. Fletcher, 1 T. R. but that he should plead them as
511; Dyer v. Bowley, 2 Bing. 94; payments of the rent.

Sapsford v. Fletcher, 1 T. R. 511; 9i Carter v. Carter, 5 Bing. 406,

Carter v. Carter, 51 Bing. 406, 2 2 M. & P. 723, 7 L. J. (O. S.) C. P.

M. & P. 723, 7 L. J. (O. S.) 141, 141, 30 R. R. 677.

30 R. R. 677; Taylor v. Zamira, 1 02 Taylor v. Zamira, 2 Marsh.

Brod. & B. 37, 21 R. R. 569; Dyer 220, 6 Taunt. 524, 16 R. R. 668.

V. Bowley, 9 Moore, 196, 2 Bing. 93 Dyer v. Bowley, 9 Moore, 196,

94; Johnson v. Jones, 1 P. & D. 2 Bing. 94.

651, 9 A, & E. 809, 813, 8 L. J. Q. B. »* Johnson v. Jones, 1 P. & D.

124; Nash v. Grey, 2 F. & F. 391. 651, 9 A. & E. 809. S13, 8 L. J.

90 Peck V. Ingersoll, 7 N. Y. 528, Q. B. 124.
529; Taylor v. Zamira, 1 Brod. &

35

546

LAW OF LANDLORD AND TENANT.

note was assigned before it became due.^^ But a subtenant who
agrees to pay his rent to the original lessor cannot, where he is
sued by his own lessor, set off a debt due him from his lessor.
His duty is to pay the original lessor against whom he could not
recoup his lessor's debt and having failed to do so he cannot
take advantage of his own wrong.^'^ Where under-lessees hold
separate portions of premises at distinct rents, the whole of the
premises being held under one original lease at an entire rent,
and one of the under-lessees, under threat of a distress by the
owner of the reversion in the original lease, pays the whole rent,
an action is not maintainable by him to recover from the other,
under-lessee, as money paid to his use, the proportion of the
rent due from him.®^ In the absence of a special agreement,
the rent cannot be apportioned between them.'^^

§ 345. Payment of rent by note, check or draft. Under the
general rule to constitute payment, there must be the delivery

95 Thompsou V. Commercial
Guano Co., 93 Ga. 282, 20 S. E.
Rep. 309.

s6 Brett V. Sayle, 60 Miss. 192.

»T Hunter v. Hunt, 1 C. B. 300.

88 Graves v. Porter, 11 Barb.
(N. Y.) 592. "In support of this
position the defendant relied on
the cases of Sapsford v. Fletcher,
Taylor v. Zamira and Carter v.
Carter. Those cases establish the
proposition, that a tenant who has
been compelled by a superior land-
lord or other incumbrances hav-
ing a title paramount to that of
bis immediate landlord, to pay
sums due for ground rent or other
charges, may treat such payment
as having been made in satisfac-
tion or part satisfaction of rent
due to his immediate landlord, and
may plead them as far as they ex-
tend in bar of an avowry for rent
in arrear. The principles upon
which these cases rest is this:
The immediate landlord is bound
to protect his tenant from all para-
mount claims; and when there-

fore the tenant is 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 Ihe latter,
he is considered as having been
authorized by the landlord so to
apply his rent due or accruing due.
All such payments, if incapable of
being treated as actual payments
of rent, would certainly give the
tenant a right of action against
his landlord as for money paid to
his use, and so would, in an ac-
tion of debt for rent, form a legiti-
mate subject of set-off. And
though in replevin a general set
off cannot be pleaded, yet the
courts have given to the tenant
the benefit of a set-off as to pay-
ments of this description, by hold-
ing them to be in fact payments
of the rent itself or of part of it."
Graham v. Alsopp, 3 Ex. 186, 18
L. J. Ex. 85.

NATURE AND INCIDENTS OF RENT. 547

of 2noney or of some other valuable thing by the debtor to the
creditor with the intention and purpose of extinguishing the
debt, and the creditor must accept and receive it for that pur-
pose. If the intention to extinguish the debt be not present in
the transaction, there is no payment. Thus, the receipt by a
creditor of a promissory note for his debt is not payment unless
it is received with that intention, and the effect of such a trans-
action is merely to suspend the right of action until the note
becomes due.®" The same rule applies to the acceptance of a
check by the creditor even where he gives a receipt for it, and
he may thereafter sue on the original debt if the check be not
paid.^ These general principles regulating the law of payment
are applicable to the payment of rent by the tenant to his land-
lord. The taking of a note by the landlord, whether it is that
of the tenant or of some third person,- or the acceptance by the
tenant of a draft drawn on him by the landlord/ is not neces-
sarily payment of the rent unless it is in fact so agreed to be
by the parties. The same rule applies to the giving of a check
for rent by the tenant to his landlord though the landlord has
given his receipt in full for the rent when he took the note,
draft or check. If it is not paid at maturity, the tenant still
owes him the rent, and the landlord still retains the same rem-
edies to recover rent from the tenant by a suit at law, or by dis-
tress or lien or otherwise as he would have had if no note, draft
or check had been given.* The landlord may, however, elect to

»9 Putnam v. Lewis, 8 Johns. 9 N. Y. 463, 10 N. Y. 599, reversing

(N. Y.) 389; Burdick v. Green, 15 12 Barb. (N. Y.) 209; Sweet v.

Johns. (N. Y.) 247; Raymond v. Titus, 4 Hun (N. Y.) 639, 67 Barb.

Merchant, 3 Cow. (N. Y.) 147; (N. Y.) 327.

Reed v. Van Nostrand, 1 Wend. 2 In re Bowne, 3 Fed. Cases,

(N. Y.) 424; Central City Bank v. 1741; Kerper v. Booth, 10 W. N.

Dana, 32 Barb. (N. Y.) 296; Meyer C. (Pa.) 79; Kendig v. Kendig, 3

V. Huneke, 55 N. Y. 412, reversing Pitts. Rep. (Pa.) 287; SutlifE v.

65 Barb. 304. Atwood, 15 Ohio St. 186; Josse

1 Olcott V. Rathbone, 5 Wend. v Schultz, 13 Fed. Cas. 7,551, 1

(N. Y.) 490; Kobbi v. Underbill, Cranch C. C. 135; Wolgamot v.

3 Sand. Ch. (N. Y.) 277; Turner Brunner, 4 Har. & McH. (Md.) 89.

v. Bank of Fox Lake. 3 Keyes (N. 3 Arguelles v. Wood, 1 Fed. Cas.

Y.) 425, 4 Abb. Dec. (N. Y.) 434; 520, 2 Cranch C. C. 579.

Bradford v. Fox, 38 N. Y. 289; 4 Edwards v. Derrickson, 28 N.

East River Bank v. Kennedy, 9 J. Law, 39; Holmes v. De Camp,

Bos. (N. Y.) 543; Pratt v. Foote, 1 Johns. (N. Y.) 33; Burden v.

54S LAW OP LANDLOED AND TENANT.

proceed either on tlie tenant's obligation to pay rent or he may
sue on the cheek, note or draft which has been given him. If
he subsequently sues upon the covenant of the lease to pay
renty he must surrender the note and he cannot recover on the
covenant unless he shall do so.^ So, the acceptance by a lessor
of a bond for the rent due on a written lease is not necessarily
payment. If the bond be not paid the landlord may then bring
assumpsit for use and occupation though he has received the
bond. He need not sue on the bond. He must, however, de-
liver the bond up to be cancelled.® But where one of two joint
lessees under a parol lease executed his individual bond for the
rent to the lessor and it was accepted by the latter, it will
operate as payment and extinguish the liabilities of both les-
sees on the parol lease under the universal rule that a writing
under seal will supersede and destroy a parol agreement. The
lessor no longer has any remedy under the parol lease which is
merged in the bond but he must sue on the bond and the obligor
thereon, as soon as he has been compelled to pay the bond, may
recover in an action for contribution from his co-tenant under the
lease the portion of the rent which the latter would have had to
pay under the lease.''

Halton, 4 Bing. 454; In re Bowne, transaction was a discount of the

12 N. B. R. 529, 1 N. Y. Wkly. Dig. bill by the agent for the tenant,

100. or an advance of the rent by the

5 Smith V. Dayton, 94 Iowa, 102, agent to the landlord, was for the

62 N. W. Rep. 650. jury. Parrot v. Anderson, 7 Exch.

eCarnell v. Lamb, 20 Johns. (N. 93; Griffith v. Chichester, 7 Exch.

Y.) 207. 95. So a judgment obtained on a

7 Howell V. Webb, 2 Ark. 360, promissory note given by one of
364. The giving of a note for three persons as his share of the
rent in arrears by the tenant will joint rent, is not a merger of the
not prevent the landlord from landlord's cause of action, where
distraining thereafter if the note he subsequently sues the co-ten-
is not paid. Harris v. Shipway, ants of the person whose note he
Bull N. P. 182. So where the ten- has taken for the rent. The note
ant gave the landlord's agent a under such circumstances is a
bill of exchange which the latter mere collateral security and not a
indorsed and paid the rent to his satisfaction of the debt, and if the
principal, crediting it In his ac- maker does not pay it, the land-
counts as if the tenant had paid lord can maintain an action
the rent, it was held where the against the other tenants jointly
l?ndlord subsequently distrained liable with him. As it is stated
that the question whether this in the text the rule would be dif-

NATURE. ANT) INCmENTS OF RENT. 549

§ 346. Receipts for rent — When conclusive and presumption
of payment therefrom. A receipt for money paid which con-
tains within it no terms of contract is mere prima facie proof
of payment, and its terms may be varied or contradicted by
parol evidence.* Thus, it may be proved even by the landlord
himself that he did not receive the money stated to have been
paid in the receipt either wholly or in part, or, where the re-
ceipt states that money was paid, the landlord may show that
the rent was paid by a note or a check.^ These facts may be
shown by parol although the receipt expressly states that it was
in full for all the rent to date.^° In so far, however, as the re-
ceipt for rent is a contract of lease, it cannot be varied or con-
tradicted by parol evidence tending to show that a different con-
tract was made by the parties. That is to say, so far as the
writing is both a receipt for rent and a lease of the premises, it
may be contradicted or explained so far as it recites the pay-
ment of rent; but that part of it that is contractual cannot be
contradicted or varied by parol evidence, except to show facts,
circumstances or defenses which may be shown by parol in the
case of other contracts.^^ The rule that a receipt may not be
varied so far as it is a contract, is of particular value in the
case of receipts for rent, owing to an almost universal custom
where tenancies are for short periods, as by the month or week,
of embodying in the receipts the terms of a contract which, if
they were not in the receipt would amount to a lease. A re-
ceipt for rent for a particular month or year, is prima facie
evidence that all rent which has accrued prior to that month

ferent if a bond or instrument un- lo Jones v. Ricketts, 7 Md. 108;

der seal had been given. Drake Gibson v. Hanna, 12 Mo. 162; Burn-

V. Mitchell, 3 East, 251. ham v. Ayer, 35 N. H. 351; Hor-

sAbrams v. Taylor, 24 111. 102; ton's Appeal, 38 Pa. St. 294;

Gulick V. Conover, 15 N. J. Law, Smith v. Schulenberg, 34 Wis. 41.

420; Danziger v. Hoyt, 46 Hun n Wayland v. Moseley, 5 Ala.

(N. Y.) 270; Barclay v. Morrison, 4f^0; Henry v. Henry, 11 Ind. 236;

16 S. & R. (Pa.) 129; Paige v. Thompson v. Williams, 30 Kan.

Perno, 10 Vt. 491. 414. The rules stated in the text

ft Wildrick V. Swain, 34 N. J. Eq. are sustained by many cases on

167; Dorman v. Wilson, 39 N. J. contracts generally which it is

Law, 474; Johnson v. Weed, 9 impracticable to cite in the notes.

.Johns. (N. Y.) 310, 60 Am. Dec. The cases cited in this note and

279; Buswell v. Pioneer, 37 N. Y. the preceeding note are not cases

312. of receipts for rent.

550 LAW OF LANDLORD AND TENANT.

or year, has been paid.^^ This presumption, however, of the
payment of past rent may be rebutted by parol even where the
receipt is in full, by showing that rent prior thereto is still un-
paid. The presumption is recognized where the rent is payable
to two or more persons to the same extent as where it is pay-
able to one only.^^ A receipt in full for rent may be shown to
have been given under a mistake of fact. Such a receipt given
under the mistaken belief that rent was paj^able at the end of
the year is not a bar to an action for rent when it is shown that
rent is payable in advance.^* A receipt in full cancelling a
lease may be set aside if procured by fraud. But a receipt will
not be set aside, though it amounts to a written surrender of the
lease, merely because the lessor, believing it was a receipt only,
signed it without reading it. nothing having been done to pre-
vent him from doing so, and no fraud having been practiced up-
on him.^^ An alteration in the landlord's receipts for rent
of the names of tenants does not raise any presumption of a
change of tenants or of a transfer of a tenant's right unless made
in connection with the knowledge and assent of all parties.^"
In an action of ejectment for the non-payment of rent, if the
tenancy is denied and there is no evidence of any receipts for
rent or effort to prove any, a subpoena to the tenant to produce
receipts with proof of service is not admissible in evidence, as
the effect of the recital of such a number of receipts in the no-
tice might have been prejudicial to the defendants where the
existence of none of them was actually proven. ^'^ In the case

12 Brewer v. Knapp, 1 Pick. i5 Jenkins v. Clyde Coal Co., 82

(Mass.) 332, 336; Ottens v. Fred Iowa, 618, 622, 48 N. W. Rep. 970.

Krug Brewing Co., 58 Neb. 331, 78 In Barr v. Chandler, 47 N. J. Eq.

N. W. Rep. 622, 623; Patterson v. 532, 20 Atl. Rep. 733, a writing as

O'Hara, 2 E. D. Smith (N. Y.) 58; follows. "Received of (the tenant)

Decker v. Livingston, 15 Johns. his right, title and interest in the

(N. Y.) 479, 483; Jenkins v. Cal- elevator now placed in our house

vert, 3 Cranch C. C. 216, 13 Fed. in consideration of $200 rent due

Cases, 7,2G3; Saving Fund v. on the property," was held a sale

Marks, 3 Phila. (Pa.) 278, 15 L. I. and not a security for the rent.
357. isBourke v. Bourke, Ir. 8 C. L.

1- Decker v. Livingston, 15 221.
Johns. (N. Y.) 479, 483. "Jones v. Reilly, 174 N. Y. 97,

n Congregational Soc. of Sharon 66 N. E. Rep. 649, rvg. 74 N. Y.

v. Rix (Vt. 1889), 17 Atl. Rep. 719. Supp. 243, 68 App. Div. 116.

NATURE AND INCIDENTS OF RENT.

551

of perpetual ground rents the relation of landlord and tenant
once having been proved to exist, the mere fact that the landlord
has not demanded rent from the occupant raises no presumption
that the rent has been paid. In the case of such rents and leases
a release of the right to demand or to receive rents must be by-
deed. If a sealed lease is proved creating a perpetual ground
rent, it can only be released by an instrument of equal solem-
nity. And the laxity or failure of the landlord to demand rent
raises no presumption that he has released or extingniished his
right to demand it.^^

§ 347. The application of rental payments. The application
of payments is the appropriation of a payment to some par-
ticular debt of two or more or the determination to which of
several demands a general payment made by a debtor to his
creditor shall be applied. Any general discussion of this topic
is obviously out of place in this treatise inasmuch as it prop-
erly belongs to the general law of contracts, but the question
may often arise between landlord and tenant and in view of this
fact it may be well to consider some general principles. It
is a general rule of law too well established to be disputed that
where a payment is made by a tenant to his landlord, the tenant
has a right to prescribe in what manner it shall be applied to
the paj^ment of any indebtedness he may owe the landlord.^*
This principle is based upon the fact that the money paid by
the tenant is his own money until he pays it and that on parting
with the ownership he has the absolute right to annex to its re-
ceipt any condition he may desire. Where the tenant owes rent
for several rental periods he may apply a payment to any rental
period at his election or as between rent and other claims held
against him by his landlord, as for example, for goods sold and
delivered, the tenant may apply his payment either to the rent
or to the other claims. So, the tenant may apply the payment
to a debt which is secured by a lien in preference to another
debt due the landlord which is not secured by a lien. Where the
tenant does not apply the payment made by him the landlord

i« Ehrman v. Mayer, 57 Md. 612
Wahl V. Barroll. 8 Gill (Md.) 288
Campbell v. Shipley, 41 Md. 81
WorthingUui v. Lee, 61 Md. 530

Smith V. Heldman, 93 Md. 343, 48
All. Rep. 946.

19 Collender v. Smith, 20 Misc.
Rep. 612.

552 LAW OF LANDLORD AND TENANT.

may do so.-" But the right of the landlord to apply pajonents
i.s not unlimited so that he may have the right to apply the pay-
ments by his tenant in such a way as to work injustice to the
tenant or to a third person. Thus, the landlord cannot apply
a payment to rent which is not matured in preference over rent
which has matured.^^ Nor can the landlord apply payments to
a claim which he holds against the tenant the validity of which
the latter disputes, in preference to a claim for rent which is
not contested by the tenant.^- And where the landlord has a
claim against the tenant for rent which is liquidated and not
disputed and for a breach of covenant under the lease which
is disputed, he cannot prefer the latter over the former in ap-
plying payments of money by the tenant.^^ Nor can the land-
lord apply the payment by his tenant to a claim against the
tenant based on an immoral or illegal consideration.^* Where
there has been no application of payments by either party to
the lease, and the tenant owes the landlord rent for several
rental periods, the law will apply payments made by the ten-
ant to the landlord to rents which have accrued rather than to
those which are not due, and as between rents which have ac-
crued the money will be applied to the extinguishment of rents
which have first accrued. ^^ The appropriation by a landlord
of a payment to a particular rental period may be implied by
the court from circumstances where there is no express direc-
tion by the tenant.-® And payments which were made by the
tenant to the landlord to whom the tenant owes not only rent
but other unsecured debts in the absence of an application by
either party, will be applied by the court to the debts which are
unsecured, particularly where the landlord has distrained for
the rent.^^ The landlord may apply money paid to him as rent

zoCollender v. Smith. 20 Misc. 24 Greene r. Tyler, 39 Pa. St.

Rep. 612. 36S.

21 Stamford Bank v. Benedict, 15 25 Hunter v. Osterhoudt, 11
Conn. 437; Wetherell v. .Toy. 40 Barb. (N. Y.) 33; Reed v. Ward,
Me. 325; Ricliardson v. Codding- 22 Pa. St. 144; Purdy's Appeal, 23
ton, 49 Mich. 1; Effinger v. Hen- Pa. St. 97.

derson, 33 Miss. 449; Cloney v. 20 Mitchell v. Dall, 2 Har. & G.

Richardson, 34 Mo. 370. (Md.) 159; Taylor v. Sandford, 7

22 stone V. Talbot, 4 Wis. 442. Wheat. (U. S.) 207.

23 Scott V. Fisher, 4 T. B. Hon. 2t Garrett's Appeal, 100 Pa. St.
(Ky.) 387. &97.

NATURE AND INCIDENTS OF EENT, 553

by an assi^ee of the lease after the assignment to rents which
have accrued prior to the assignment, in the absence of an ap-
plication of the rent by the assignee.-^ A landlord to whom
a part of the crops of land held by two tenants jointly is paid
as rent, cannot, without the consent of both lessees, apply the pay-
ment to the individual debt of one leaving the rent unpaid. A
tenant who is subsequently thereto sued by the landlord for the
rent may have such payment applied to the rent.-®

§ 348. The necessity of a demand for the payment of rent.
The question of a demand by the landlord for the payment of
rent arises in two classes of cases. It may arise where the non-
payment of rent causes a forfeiture for which the landlord has
a right to re-enter upon the premises and in all such cases a de-
mand by the landlord made in accordance with the requirements
of the lease at the proper place, and on the day when it is due,
cannot be dispensed with.^** The other class of cases is where
the question of a demand arises in an action by the landlord
upon an express covenant to pay rent or where he sues for use
and occupation. Where the landlord sues for use and occupa-
tion, in the absence of statute dispensing with a demand, he must
allege and prove that a demand has been made for the rent.^^
If a demand is necessary it must usually be made on the land,'^
but, where the place for the payment of the rent is not mentioned
in the lease, and it has been the practice of the parties to pay
the rent at some other place than on the land, a demand for the
payment of the rent on the premises is not necessary.^^ In the
absence of statute, a demand for the payment of rent in order to
permit the lessor to take advantage of a forfeiture created by a
default in the payment of the rent, must be personal, but where
the demand for the rent is simply a condition precedent to an
action at law, a written demand by mail may suffice, though a

28 CoUender v. Smith, 20 Misc. statute. Cockerline v. Fisher

Rep. 612, 45 N. Y. Supp. 1130. (Mich.), 103 N. W. Rep. 522;

20 Kahler v. Hanson, 53 Iowa, George A. Fuller Co. v. Manhattan

398, 6 N. W. Rep. 57. Construction Co., 88 N. Y. Supp.

3/5 Godwin v. Harris (Neb.), 98 1049.

N. "W. Rep. 439, 440. 32 Fordyce r. Hathorn. 57 Mo.

31 In many of the states a formal 120.

demand for the rent on the prem- »3 Lund v. Ozanne (N. Mex.), 84

ises has been dispensed with by Pac. Rep. 710.

554 LAW OF L.\JSrDLORD AND TENANT.

personal demand is always advisable.^* No demand for the
I'ent by the lessor is necessary to be alleged or proved where rent
is payable under a covenant on a particular day, whether it be
payable in money ^^ or in labor or personal property.^^ So where
a lessee has accepted an order drawn on him by his lessor for
the rent a third party may sue thereon without making a prior
demand for its payment.^' The parties to the lease may by ex-
press stipulation in the lease waive a demand for the payment
of the rent.^® Inasmuch as the presentation and collection of
rent is merely a ministerial duty it may be delegated to agents
having charge of the premises. It follows therefore that a de-
mand by an agent or subagent is equivalent to a demand by the
lessor.^® The demand must be made before the action to recover
the rent is begun. Any time before service of process is suffi-
cient. *°

§ 349, The reduction of the rent by the landlord during the
term. In order that an agreement to reduce the rent payable
under a written lease, made during the term, shall be valid and
shall operate as a modification of the lease, it must possess all
the requisites of a valid contract. There must be a valid con-
sideration by the tenant for the promise to reduce the rent by

3* Folsom V. Cook, 115 Pa. St. Mining Co., 64 Mich. 172, 31 N.

539, 9 Atl. Rep. 93. W. Rep. 100. No demand is nec-

35 Clark V. Charter, 128 Mass. essary in New York. Gruhn v.

483, 484; McMurphy v. Minot, 4 Gudebrod Bros. Co., 21 Misc. Rep.

N. H. 251; Bumham v. Dunklee, 628, 47 N. Y. Supp. 714. See, also,

34 N. H. 334; Remsen v. Conklin, Martin v. Rector, 118 N. Y. 476, 23

18 Johns. (N. Y.) 447; Collis v. N. E. Rep. 893, as to necessity of

Alburtis, 9 Civ. Pro. Rep. (N. Y.) demand in ejectment against the

80. tenant.

3e Packer v. Cockayne, 3 G. ^g Neiner v. Altemeyer, 68 Mo.

Greene (Iowa) 111. App. 243. In Henderson v. Cor-

37 Burnham v. Dunklee, 34 N. H. bondale Coal & Coke Co., 140 U>
334, 344. S. 25, 11 Sup. Ct. 691, which was

38 Shanfelter v. Homer, 81 Md. a proceeding to forfeit a lease for
621, 32 Atl. Rep. 184, where the non-payment of rent, a demand by
lease provided that if the rent fell letter, though shown to have been
in arrear for a certain period the probably received by the tenant,
tenancy was at once to terminate was held insufficient where no rea-
without further notice. Lewis v. son was proved why personal serv-
Hughes, 12 Colo. 208, 20 Pac. Rep. ice of the demand was not made.
621; Ingalls v. Bissot (Ind. App.), 4o Stanley v. Turner, 68 Vt. 315,
57 N. E. Rep. 723; Pendill v. Union 35 Atl. Rep. 321.

NATURE AND INCIDENTS OF RENT. 555

the landlord, and the agreement must be definite as respects tne
reduced rent which is to be paid. If the lease is in writing, the
agreement to reduce the rent must be in writing, unless the cir-
cumstances are such that the court may reasonably infer from
the conduct of the parties that a modification in writing was
waived by the landlord. It has been held that the amount of
rent which is payable under a lease under seal cannot be reduced
or increased by parol, and the same rule would doubtless apply
in modern times at least to all written leases.*^ A modification
or reduction of the rent alone without consideration is not a
surrender of the lease, and must be based on an independent
consideration.'*^ If, however, the parties orally agree to reduce
the rent in a written lease not under seal, and the landlord ac-
cepts an installment of the rent at a reduced rate, the reduction
is binding on him, and he cannot thereafter allege that the re-
duction is not binding on him.^^ Various promises on the part
of the landlord may constitute a good consideration for the re-
duction of the rent payable by the tenant. Thus if the lessor
offers to reduce the amount of the rent which the lessee has to
pay, or offers to release the lessee from the payment of an in-
stallment of rent which has become due,^* or offers to receive pay-
ment of the rent in a different mode from that originally stipu-
lated for which may result in a loss to him or a benefit to the
tenant.*^ and in accepting this offer the lessee continues to use
and to occupy the land, the modification is based on a good con-
sideration, which on the part of the lessor is the reduction of
rent, and on the part of the lessee, the use and possession of the

11 Barnett v. Barnes, 73 111. 216, 43 Nicoll v. Burke, 8 Abb. New

217; Hume Bros. v. Taylor, 63 111. Cases (N. Y.) 213.

43; Wharton v. Anderson, 28 ■«•» Copper v. Fretnaransky, 16 N.

Minn. 301, 9 N. W. Rep. 860; Y. Supp. 866; Hanson v. Hellen

Smith V. Kerr, 33 Hun, 567. (Me. 1886), 6 Atl. Rep. 837; Ten

42 Coe V. Hobby, 72 N. Y. 141, Eyck v. Sleeper, 65 Minn. 413, 67

28 Am. Rep. 120, affirming 7 Hun, N. W. Rep. 1026.

157; McMaster v. Kohner, 44 N. 45 RajTnond v. Krauskopf, 87

Y. Supp. Ct. (12 Jones & S.) 253; Iowa, 602, 605, 54 N. W. Rep. 432,

Taylor v. Winters, 6 Phila. 126, 5 where, owing to bad crops on the

Am. Law Reg. (N. S.) 438, 23 Leg. farm leased, a lessor agreed he

Int. 125; Rohrheimer v. Hoffman, would take one-half the crop as

103 Pa. St. 409; Crowley v. Vitty, rent instead of a fixed quantity

7 Ex. 319, 21 L. J. Ex. 135. agreed upon.

556 LAW OF LANDLORD AND TENANT.

land.** So an agreement by the tenant to remain in the prem-
ises after they have been repaired after a fire, is a good consider-
ation for an agreement by the landlord to apportion the rent,
and then to remit the rent for the period, during which the
premises were uninhabitable.*^ So, too, an agreement by the ten-
ant to make additions to and alterations in the leased building,
which he was not bound to do by the lease, if it is executed by
him, is a good consideration for a promise on the part of the
landlord to reduce the rent for the balance of the tenant's occu-
pation.*^ The fact that a tenant, after he has threatened to
abandon the premises during the term, continues in possession
upon the promise of the landlord to reduce the rent for the bal-
ance of the term is not alone a sufficient consideration for the
landlord's promise to reduce the rent. The tenant has not
agreed to do anything which he was not bound to do under the
lease. A different rule applies where the term is at an end.
A parol agreement by a landlord at the request of a tenant,
under a lease under seal changing the time for the payment of
rent from the beginning to the end of the month is valid. The
fact that the tenant held over for another term after the expira-
tion of the written lease is a good consideration for the land-
lord's agreement.*^ And it has been held that under some cir-
cumstances the remaining in possession of a tenant who was
about to move may be a good consideration for the landlord's
promise to reduce the rent if the lease is in parol. Thus the
waiver by a lessee of a right which has accrued to him during the
term to sue his lessor for damages for an eviction is a good con-
sideration for a new agreement modifying the lease. So under
such circumstances remaining in the house being a detriment to
the lessee would be a good consideration.^" But in all cases of a
modification of the terms of a written lease under seal or other-
wise by an oral agreement it must be shown that the latter was
wholly executed by the parties to it.^^ For if the reduced rent

*e Evans v. Lincoln Co., 204 Pa. 48 Natelson v. Reich, 99 N. Y.

St. 448, 54 Atl. Rep. 321. Supp. 327.

47 Ireland v. Hyde, 69 N. Y. *o Wilgus v. "Whitehead, 89 Pa.

Supp. 889. As to what will con- St. 131, 134.

stitute a new lease by the reduc- no White v. Walker, 38 111. 422,

tion of rent, see Watson v. Waud, 435.

8 Ex. 335, 22 L. J. Ex. 161, 1 W. R. oi Smith v. Kerr, 108 N. Y. 31;

133. McKenzie v. Harrison, 120 N. Y.

NATURE AND INCIDENTS OF RENT. 557

orally stipulated for by the parties is paid, and accepted by the
landlord, the ag-reement reducing the rent is executed, and
hence becomes binding on the parties.^^ And on the other hand,
where the tenant fails in the performance of his agreement,
either by wholly omitting to pay the reduced rent, or by refusing
to pay it in the manner agreed upon, the rights of the landlord
under the lease to collect former rent are revived.^^ Accordingly
where a landlord voluntarily reduced the rent for the first year
of the term of a lease for ten years upon the express agreement
of the tenant, that the latter would continue in possession as
agreed, and carry out the terms of the lease, and the tenant
paid two years rent as reduced and subsequently abandoned the
premises without the consent of the landlord, the latter may
maintain an action against the tenant, to recover the amount of
rent which he has remitted.'* A reduction of rent based partly
upon the fact that the lessees who were merchants were in fail-
ing circumstances and on the fact that the lessor who was sup-
plying them with goods had an interest in seeing the lessee suc-
ceed is on a sufficient consideration.^'^ r^j^^ agreement to reduce
the rent must be definite and certain both as to amount and
time. An agreement on the part of the landlord in consequence
of a loss in the value of the premises to reduce the rent without
expressly stating the amount to which it was to be reduced, is
not enforcible by reason of its uncertainty.^'' So an agreement
by the landlord to reduce the rent, nothing being ^aid by him
as to the period during which the reduction was to apply, may
be revoked by him at any time on notice to the tenant."

260, 263, 24 N. E. Rep. 458, 8 L. ner in his business and borrow a

R. A. 257. large sum of money if the lessor

52 Bowman v. Wright (Neb.), 91 will reduce the rent in a written
N. W. Rep. 580. lease under seal and an actual per-

53 Smith V. Hartogg, 15 Rep. 641. formance by the lessee of his
•'-* Brown v. Cairns, 63 Kan. 584, agreement with his continuance in

66 Pac. Rep. 1033. business for three years under it

sBJaffray v. Greenbaum, 64 are a good consideration for the

Iowa, 492, 20 N. W. Rep. 775. lessor's promise; the latter can-

56 Smith V. Ankrim, 13 S. & R. not recover the rent except as it
(Pa.) 39. has been reduced. Hastings v.

57 Rohrheimer v. Hofman, 103 Lovejoy, 140 Mass. 261, 2 N. E.
Pa. St. 409. An oral agreement Rep. 776, 54 Am. Rep. 772. "It
before the expiration of a lease was an old maxim of the common
by which a lessee is to take a part- law that an obligor would only be

558 LAW OF LANDLORD AND TENANT.

§ 350. Increase of rent on re-hiring or during the term. A
parol demand by the landlord for increased rent during the term,
and a parol promise to pay by the tenant where the term is cre-
ated by a written lease, are not enforcible unless there is an actual
surrender of the existing term. To permit the covenant to pay
rent in a written lease to be varied by a subsequent parol agree-
ment, would violate a cardinal rule of evidence which protects
the writings to which parties have committed their intentions
from being annulled, contradicted or varied by subsequent
agreements in parol. An increase of rent coming at the end of
the term is upon a different basis, for if the term under a writ-
ten lease is surrendered or expires by natural lapse of time, no
rule of law prevents the making of a new contract of lease at an
increase or at a reduced rental. If the landlord notifies the ten-
ant that his rent is to be increased and the tenant without objec-
tion continues to occupy the premises without having expressly
refused to pay the increased rent, it will be presumed that he
has accepted a new lease at the increased rate of rent which the
landlord had notified him he would have to pay.^^ But, the
tenant is not always bound by mere casual remarks made by his
landlord in regard to the increased rent. Thus, an oral notice
to a tenant from year to year of an increase of rent for a future
year does not necessarily make him liable for increased rent by
his holding over after having received such notice."''^

§ 351. The jurisdiction of the courts in an action to re-
cover rent. At the common law, the distinction was -made in
determining the jurisdiction of courts between transitory
actions, and those which were not so. At the common law an

released by an instrument of as bond and which all courts hold to

high dignity as that by which he be a release and discharge of the

v.as bound, being obligated by bond. So with a debt secured by

seal, he could be released only by mortgage, a release of such debt

an instrument under seal. Tech- need not be under seal." By the

nically this may be the rule in court in White v. Walker, 38 111.

modern times, but practically, it is 422, 434.

not enforced. Of how frequent oc- "'« Columbia Brewing Co. v. Mil-

currence is it, that in an action ler (Mo. App.), 101 S. W. Rep.

of debt upon a bond or other 711; Adriance v. Hafkemeyer, 39

sealed instrument, the defendant. Mo. 134; Hunt v. Bailey, 39 Mo.

under a plea of payment, proves 257.

by parol the actual receipt by the ' su Witte v. Witte, 6 Mo. App.

obligee, of the money due on the 488.

NATURE xVND INCIDENTS OF KENT. 559

action on covenant or debt for rent, or for use and occupation
being based upon privity of contract between the lessor and lessee
is transitory and need not be brought in the jurisdiction where
the land is located.'^*' The contrary is the rule when the action
is based upon privity of estate e. g. where the assignee of the
lessee is sued for rent by the lessor.**^ Hence under such circum-
stances the action against the assignee of the lessee must be
brought in the jurisdiction where the land demised is located.
Under the modern statutes regulating procedure which have
been enacted in the various states of the Union, this distinction
no longer exists, and the action against the assignee of the lessee
being a personal action, may be brought in any court having
jurisdiction of the defendant. Under exceptional circumstances
rent may be recovered in equity. Thus, where a written lease is
lost, the lessor may proceed in equity and have the lease estab-
lished as a lost instrument, and then equity, having assumed ju-
risdiction for this purpose, will proceed to give him judgment
for his rent on the covenant of the teuant.*'-

§ 352. The form and nature of the lessor's remedy to re-
cover rent. There are two ways in which a lessee becomes
liable to pay rent. One is by his express covenant to pay or by
privity of contract. The other way exists in the absence of an
express contract when he is liable by implication or by privity
of estate. Where he is liable by privity of estate only if h^
parts with his estate the privity being destroyed, he is no longer
liable. Where he is liable by privity of contract as where he has
covenanted to pay, he continues liable so long as the contract is
not discharged and is liable therefore during the whole term
though he has quit possession before the end of the term.*'^ At
common law an action of debt was proper to recover rent for an
agreed sum where there was a promise to pay is in a sealed or
unsealed instrument or by word of mouth.^* The action may

60 Gray v. Johnson, 14 N. H. 414, 62 Lawrence v. Hammett, 3 J. J.
419; King v. Eraser, 6 East, 348; Marsh. (Ky.) 287.

Bulwer's Case, 7 Rep. 1; Davies V. cs "WTietstone v. McCartney, 32

Edwards, 3 Maule & Sel. 380; Kirt- Mo. App. 430; Jones v. Barnes, 45

land V. Pounsett, 1 Taunt. 570. Mo. App. 590; Quinette v. Carpen-

61 Bracket v. Alvord, 5 Cow. (N. ter, 35 Mo. 502.

Y.) 18; Henwood V. Cheeseman, 3 64 Walker's Case, 3 Co. 22a;

Serg. & R. (Pa.) 500; University Rowland v. Coffin, 9 Pick. (Mass.)
of Vermont v. Joslyn, 21 Vt. 52. 52, 12 Pick. (Mass.) 125; Pyerson

560 LAW OF LANDLORD AJSTD TENANT.

be maintained against the assignee of tlie lessee.®^ If the lease
was under seal and contained a covenant to pay rent the proper
action was one on this covenant.^® Where there was no express
promise to pay rent an action on the case or in assumpsit for
use and occupation was maintainable to recover the rent upon
the theory of an implied promise to pay on the part of the ten-
ant.®^ The lessor in bringing his action in assumpsit for use
and occupation was however liable to be nonsuited by the lessee
proving an express demise with a parol or written promise by
him to pay rent the nonsuit being based solely upon the fact
that the existence of such promise showed that the lessor had
mistaken the form of his remedy as he ought to have sued in
debt or on covenant.''® For at common law an action of assump-
sit for use and occupation will not lie in the case of a lease
under seal.*'^ To remedy this the statute 11 George II, ch. 19,
§ 14, was enacted by which this action for use and occupation was
recognized, confirmed and extended in its operation so that, by
the terms of the statute the landlord could recover notwith-
standing proof by the tenant that he had been in possession
under an express demise. The statute has been re-enacted in
very many of the States. '° Hence in more recent times wherever

V. Quackenbush, 26 N. J. L. 236; 67 Eppes' Ex'rs v. Cole, 4 H. &

Trapnall v. Merrick, 21 Ark. 503; M. 168; Dartnal v. Morgan, Cro.

Codman v. Jenkins, 14 Mass. 93; Jac. 598; How v. Norton, 1 Lev.

Blume V. McClurken, 10 Watts 598.

(Pa.) 380; Norton v. Vultee, 1 N. «« Wise v. Decker, 30 Fed. Cas.

Y. Super. Ct. Rep. 427; McKeon No. 17,906, 1 Cranch, C. C. 171;

V. Whitney, 3 Denio (N. Y.) 452; Oswald v. Godbold, 20 Ala. 811;

Lanning v. Howell, 2 N. J. Law, Gage v. Smith, 14 Me. 466; Cod-

256; Allen v. Bryan, 5 B. & C. 512, man v. Jenkins, 14 Mass. 93;

4 L. J. (O. S.) 210, 29 R. R. 30.7; Smiley v. McLauthlin, 138 Mass.

Varley v. Leigh, 2 Ex. 446, 17 L. 363; Kiersted v. Orange & A. R.

J. Ex. 289. Co., 69 N. Y. 343, 346, 25 Am. Rep.

65 McKeon v. Whitney, 3 Denio 199.

(N. Y.) 452. «9 Smiley v. McLauthlin, 138

seThursby v. Plant, 1 Saund. Mass. 363; Kiersted v. Orange &

237; Ellis v. Rowbotham (1900), A. R. Co., 69 N. Y. 343, 346, 25 Am.

IQ. B. 740; Cross v. United States, Rep. 199; Codman v. Jenkins, 14

81 U. S. 479; Kiersted v. O. & A. Mass. 93.

R. Co., 09 N. Y. 343; Greenleaf v. to Gosharn v. Stewart, 15 W. Va.

Allen, 127 Mass. 248; U. P. R. Co. 657, 661.
V. C, R. L & P. R. Co., 164 El. 88;
Brown v. Cairns, 63 Kan. 693.

NATURE AND INCIDENTS OF RENT. 561

such statutes are to be found an action of assumpsit will lie for
rent, though there be an express demise provided it be not by
deed.^^ Where parties have mutual dealings, and rent from one
of them to the other is part of the accoimt, it may be recovered
in an action of account/^

§ 353. Recovery by the landlord of rent where the tenant
has never taken possession. A tenant who, by no fault or mis-
conduct on the part of the landlord has never taken possession,
is liable on his covenant to pay rent as for the breach of an exec-
utory contract. If the lessor has not prevented the actual en-
joyment of the premises and there is an absolute covenant on
the part of the lessee to pay rent, an action on the covenant may
be maintained by the landlord although the lessee has never
entered upon the premises." If the tenant is kept out of pos-
session by the landlord the latter has no action on the covenant
of the lessee to pay rent. And the landlord must show where he
sues on the covenant for rent and cannot show that the tenant
was in possession, that he was ready at all times to give posses-
sion, that at the commencement of the term the premises were
prepared and ready for occupancy, that at the commencement
of the term he either tendered possession or that the tender was
either expressly or by conduct waived by the tenant.'^* The land-
lord must also show that he has made reasonable efforts' to se-
cure another tenant for the premises after his tender of pos-

71 Burnham v. Best, 10 B. Mon. (N. Y.) 240; Collyer v. Collyer, 113
(Ky.) 227, 228; Patterson v. Stod- N. Y. 442, 448; Codman v. Jen-
dard, 47 Me. 355, 356. 74 Am. Dec. kins, 14 Mass. 93; Kline v. Jacobs,
490; Swem v. Sharretts, 48 Md. 68 Pa. St. 57, where the relation
408; Sibley v. Brown, 4 Pick. of landlord and tenant is proved
(Mass.) 137; Abeel v. Radcliffe, to exist and a return for the use
13 Johns. (N. Y.) 297, 7 Am. Dec. of the land is implied but no defl-
377; Heidelbach v. Slader, 1 nite amount has been fixed or
Handy (Ohio) 456; Gosharn v. agreed upon.

Stewart, 15 W. Va. 657, 661. Con- 7?. Tully v. Dunn, 42 Ala. 262;

tra, Beecher v. Duffield, 97 Mich. Union Pacific R. Co. v. Chicago,

423, 56 N. W. Rep. 777. Compare R. I. & P. Ry. Co., 164 111. 88, 45

Burch V. Harrell, 93 Ga. 719, 721, N. E. Rep. 488, 495; McGunnagle

20 S. E. Rep. 212. v. Thornton, 10 S. & R. (Pa.) 10,

72 Nedvidek v. Meyer, 46 Mo. 11.

600. See, also, as to assumpsit for '* La Farge v. Mansfield, 31

rent, Gibson v. Kirk, 1 Q. B. 850, Barb. (X. Y.) 345, 347.
856; Osgood v. Dewey, 13 Johns.

562 LAW OP LANDLORD AND TENANT.

session was refused by his tenant/^ If the landlord secures an-
other tenant before the expiration of the term, the court will
allow the tenant whom he is suing- for the rent on his covenant,
credit for the amount which the landlord has received. In an
axjtion for rent based upon a covenant to pay rent where the
tenant has not gone into possession the measure of damages is
the amount of rent due less any advance payment made unless
it is shown that the landlord occupied or derived some benefit
from the premises after the tenant informed him that he would
not go into possession.'**

§ 354. Joinder of cause of action for rent. The lessor in
suing on a covenant to pay rent, whether express or implied,
may join therewith any cause of action arising on a breach of
contract by his tenant. The lessor may join a cause of action for
rent with one based on a breach of covenant against waste,'^ or
with one based on the breach of a covenant by the tenant to re-
pair or to make improvements. The landlord may join an action
for rent with an action for a breach of covenant or contract
which is not embraced in the lease. Under a statute permitting
the joinder of causes of action arising out of contract, a cause of
action for rent and one for money paid by mistake, are properly
joined."

§ 355. Recoupment, counterclaim and set off, by a lessee in
an action to recover the rent. It is not every injury by the
lessor to the rights of the lessee to the possession and enjoyment
of the premises which will bar a recovery of the rent by the
lessor. The lessor's conduct which is the basis of the lessee's de-
fense must be such as will have deprived the lessee of the pos-
session of the premises in whole or in part.''" In other words in
order that the lessee shall be exempted from his liability to the
lessor for rent there must have been an eviction wholly or in part
depriving the lessee of his possession, or some act on the part
of the lessor by which the lessee has lost his possession. The ten-
ant cannot retain posession of the premises and at the same time

75 La Farge v. Mansfield, 31 ^7 Carter v. George, 30 Kan. 451,
Barb. (N. Y.) 345, 349. And see, 1 Pac. Rep. 58.

also, Sausser v. Steinmetz, 88 Pa. ^s Olmstead v. Dauphiny, 104

St. 324, 327; Harger v. Edwards, Cal. 635, 38 Pac. Rep. 505.

4 Barb. (N. Y.) 256, 260. to News Co. v. Browne, 103 111.

76 Segal V. Ensler, 16 Misc. Rep. 317; Edgerton v. Page. 20 N. Y.
43, 37 N. Y. Supp. 694. 284.

NATURE AND INCIDENTS OF RENT.

563

repudiate the landlord's claim for the rent which is. the consid-
eration for the possession, lie must elect whether, in view of
the landlord's acts and the consequences of such acts on his pos-
session, he will abandon his possession and claim an eviction or
whether he will remain in possession and pay rent.^° It does not
follow, however, that a lessee by remaining in possession after
the lessor has committed an act which would have justified the
lessee in abandoning possession is absolutely and universally
without remedy. In an action brought by the landlord to re-
cover for a breach of the covenant to pay rent the tenant may
usually recover damages for the breach of any covenant con-
tained in the lease and which is binding upon the iandlord.^^

90 "If, however, the tenant
naakes no surrender of the posses-
sion, but continues to occupy the
premises after the commission of
the acts which would justify him
in abandoning them, he will be
deemed to have waived his right
to abandon, and he cannot sustain
a plea of eviction by showing that
there were circumstances that
would have justified him in leav-
ing the premises; hence it has
been held there cannot be a con-
structive eviction without a sur-
render of possession. It would be
unjust to permit the tenant to re-
main in possession and then es-
cape the payment of rent by plead-
ing a state of facts which, though
conferring the right to abandon,
had been unaccompanied by the
exercise of that right." By Magru-
der, J., in Keating v. Springer, 146
111. 481, 34 N. B. Rep. 805, 808, 37
Am. St. Rep. 175, 22 L. R. A. 544,
citing cases.

81 Vandegrift v. Abbott, 75 Ala.
487; Hurton v. Miller, 84 Ala. 537,
4 So. Rep. 370; Trathen v. Kipp,
15 Colo. App. 426, 62 Pac. Rep.
962; Hylan v. Jockey Club Wine,
Liquor & Cigar Co., 9 Colo. App.
299, 48 Pac. Rep. 671; Lewis v.

Chisolm, 68 Ga. 40; Stewart v.
Lanier House, 75 Ga. 582; McAles-
ter V. Landers, 70 Cal. 79, 11 Pac.
Rep. 505; Mitchell v. Plant, 31
111. App. 148; Harmony Co. v.
Ranch, 62 111. App. 97; Pepper v.
Rowley, 73 111. 262; Watson v.
Hun toon, 4 111. App. 294; Lunn v.
Gage, 37 111. 19, 87 Am. Dec. 233;
Reno V. Mendenhall, 58 111. App.
87; Pickens v. Bozell, 11 Ind. 275;
Block V. Ebner, 54 Ind. 544, 548;
Smith V. Hall, 11 Me. 295; Eddy
V. Coffin, 149 Mass. 463, 21 N. E.
Rep. 870; Holbrook v. Young, 108
Mass. 83, 86; Hovey v. Walker, 90
Mich. 527, 51 N. W. Rep. 678;
Long v. Geriet, 57 Minn. 278, 280,
59 N. W. Rep. 194; Goebel v.
Hough, 26 Minn. 252, 255, 2 N. W.
Rep. 847; Bloodwarth v. Stevens,
51 Miss. 475, 479; Kiernan v. Ger-
main, 61 Miss. 498, 503, 504; Green
v. Bell. 3 Mo. App. 291, 295; Craw-
ford V. Armstrong, 58 Mo. App.
214; Hunter v. Reiley, 43 N. J.
Law, 480; Nichols v. Dusenbury,
2 N. Y. 283, 288; Myers v. Burns,
33 Barb. (N. Y.) 401; Kelsey v.
Ward, 16 Abb. Prac. (TST. Y.) 98;
Cook V. Soule, 45 How. Pr. (N. Y.)
340; City of New York v. Mabie,
13 N. Y. 151, 64 Am. Dec. 538;

564 LAW OP LANDLORD AND TENANT.

Let US take for example a breach of a covenant by tbe lessor
which consists of aJi act equivalent to an eviction. The lessee
may waive the eviction, continue in possession and plead the
wrongful act of the lessor by way of recoupment, or counter-
claim as it is termed in some jurisdictions, either as a complete
defense or pro tanto to the lessor's claim for rent.^^

This is the almost universal rule in the United States by stat-
ute. And that it is based upon fairness and reason may readily
be seen when we consider that, inasmuch as the object of an ac-
tion for rent is to ascertain how much the lessee ought to pay for
his use and enjoyment of the premises, if the lessor by his con-
duct has impaired the value of such enjoyment the lessee ought
not to pay as much as if the lessor had in no wise impaired the
enjoyment of the lessee. In an action for rent under a lease pro-
viding for its payment monthly in advance, where the defense
was that a covenant to supply steam had not been performed, the
performance of the covenant was not a condition precedent to the
defendant 's liability for rent which plaintiff must prove in order
to recover.^^ The tenant is not bound to recoup the damages
which he has received. He may do this at his election or he
may bring a separate action against his landlord for any dam-
ages which he has received by reason of the breach by the land-
lord of an independent covenant. The fact that the tenant has

Darwin v. Potter, 5 Denio (N. Y.) Rowley, 73 111. 262; La Farge v.

306; Moffat v. Strong, 22 N. Y. Mansfield, 31 Barb. (N. Y.) 345;

Super. Ct. Rep. 57; Ludlow v. Mc- Hunter v. Reiley, 43 N. J. Law,

Carthy, 5 App. Div. 517, 38 N. Y. 480; Horton v. Miller, 84 Ala. 537,

Supp. 1075; Jeffers v. Bantley, 47 4 So. Rep. 370; Abrams v. Watson,

Hun (N. Y.) 90; Hirsch v. Olmes- 59 Ala. 524; Pickens v. Bozell, 11

dahl, 78 N. Y. Supp. 832; Ely v. Ind. 275; Holbrook v. Young, 108

Spiero, 51 N. Y. Supp. 124; Lewis Mass. 83; Crane v. Hardaman, 4

V. Culbertson, 11 S. & R. (Pa.) 59; E. D. Smith (N. Y.) 339; City of

Depuy V. Silver, 1 Clark (Pa.) New York v. Mabie, 13 N. Y. 151,

S88; Philips v. Monges, 4 Whart. 64 Am. Dec. 538, reversing 9 N. Y.

(Pa.) 226; Prescott v. Otterstatter. Super. Ct. 401; Shallies v. Wilcox,

85 Pa. St. 534; New York & T. 4 Thomp. & C. (N. Y.) 591; Mc-

Land Co. v. Cruger (Tex.), 27 S. Kesson v. Mendenhall, 64 N. C.

W. Rep. 212. 286; Rogers v. McKenzie, 73 N.

82 Keating v. Springer, 146 111. Car. 487; Lewis v. Culbertson, 11

481, 34 N. E. Rep. 805, 808, 37 Am. S. & R. (Pa.) 59.
St. Rep. 175, 22 L. R. A. 544; Lind- «'i Trenknian v. Schneider. 56 N.

ley V. Miller, 67 111. 244; Lynch v. Y. Supp. 770, 26 Misc. (N. Y.) 695.
Baldwin, 69 111. 210; Pepper v.

NATURE AND INCIDENTS OF RENT. 565

paid his rent for nearly the entire tenn will not prevent him
from setting up his counterclaim for damages for the entire
term.®* In an action by the landlord to recover rent the tenant
may set off damages sustained by him by reason of the landlord's
breach of a covenant to repair,^^ or by reason of an agreement
contained in the lease that the tenant should be remunerated by
the landlord for certain work performed during the term.®"
The tenant cannot recoup damages for trespass not amounting to
an eviction, in an action to recover rent. The reason of this
is that the right to recoup depends upon the fact that the dam-
ages which are to be set off must have arisen from, or sprung out
of the contract or transaction upon which the plaintiff sues.
An action for rent is either on a covenant or on an implied
promise to pay it while a trespass is a tort independent of the
engagement to pay rent and having no essential connection
with it." So a cause of action for the conversion by the landlord
of the personal property of the tenant left on the premises after
the tenant's removal or consisting of fixtures for the removal of
which no provision is inserted in the lease cannot be set-off
against a claim for rent.^® A tenant who alleges that his land-

84 McAlester v. Landers, 70 Cal. out of another part of the same

79, 11 Pac. Rep. 505. contract, the subject of plaintiff's

83 Reno V. Mendenhall, 58 111. suit. * * * Xor is the right at

App. 87; Jeffers v. Bantley, 47 all affected by the fact that the

Hun, 90. damages are unliquidated." Blood-

80 Crawford v. Armstrong, 58 worth v. Stevens, 51 Miss. 475,

Mo. App. 214. "According to the 479.

earlier practice, such defense «" Bartlett v. Farrington, 120

could not be made. But it is now Mass. 284; Willis v. Branch, 94

well settled that the tenant need N. Car. 142; Levy v. Bend, 1 E. D.

not sue in a cross-action, and may Smith (N. Y.) 169; Drake v.

set up his damages in extinguish- Cockroft, 4 E. D. Smith (N. Y.)

ment or reduction of the demand 34, 10 How. Pr. (N. Y.) 377, 1 Abb.

of the landlord in his action. This Prac. (N. Y.) 203; City of New

right of recoupment arises where York v. Mabie, 13 N. Y. 151, 64

the cross-demand grows out of the Am. Dec. 538; Hulme v. Brown, 3

same contract or transaction. Heisk (Tenn.) 679. Contra. .Tohn-

Whenever the contract contains son v. Aldridge, 93 Ala. 77, 9 So.

mutual stipulations, the defendant Rep. 513.

may rely upon some breach of the «s City of New York v. Parker

covenant or engagement in his Vein S. S. Co., 21 N. Y. Super. Ct.

favor, and the damages accrued 300; Ludlow v. McCarthy, 5 App.

therefrom, as a total or partial Dlv. 517, 38 N. Y. Supp. 1075.
satisfaction of the demand arising

566 LAW OF LANDLORD AND TENANT.

lord has broken an agreement or covenant in the lease cannot
where his landlord has sued for the rent, maintain a suit for
specific performance of the covenant and in that action enjoin
the collection of the rent. He may and indeed must interpose
the breach of the landlord's covenant as a counterclaim and set
off his damages sustained thereby against the rent which is due.^*

§ 356, Notice to produce the lease in an action to collect
rent. In an action for rent, if either party desires to prove
a lease in the possession of the other, he must give the other
seasonable notice to produce it before he can give secondary
evidence of his contents. Such notice is not necessary where it
would be ineffective, as, for example, where the opposite party
has sworn positively that he has not the paper, does not know
where it is, or has lost it, or otherwise testifies to facts that
show that it is not in his possession or under his control.
Whether the paper was or was not lost and the suificiency of the
preliminaiy proof to admit secondary^ evidence of its contents,
is for the court. The degree of diligence to be used in the
search depends upon what value is attached to the lease by the
party from whose possession it was lost. In the case of a mere
agreement for a lease not signed by either party very little
care would be expected in preserving it and evidence of slight
diligence in searching would be enough to admit secondary evi-
dence of its contents."**

§ 357. Payment of rent during- occupation. The meaning of
the word "occupy." The word "occupy" when employed in a
lease generally means more than merely an actual use of the
premises as a place of residence or a place to store goods. This
word in its primary sense means to possess and implies a per-
manent tenure for a more or less lengthy period. Of course its
meaning may vaiy according to the subject matter in connection
with which it is used,®^ Thus a iright to live in, inhabit, dwell
in and "occupy premises" with appurtenances, for the term of
a person's natural life, creates a life estate in the premises in
such person,"^ And a guarantee that a person shall pay another
rent so long as the latter shall "oecu])y" the premises leased to

«'•> Douglas V, Chesebrough Build- »i Regina v. Inhabitants of St.

ing Co., 67 N. Y. Supp. 755. Nicholas, 5 Barn. & Add. 227.

'•>" Union Banking Co. v. Git- »- Rex v. Inhabitants of Eating-
tings, 45 Md. 181, 195. ton, 4 T. R. ISl.

KATL'KE AND INCIDENTS OF RENT. 567

Him covers the period included in the lease and not merely the
period the lessee is in actual occupation.^^ And where a lease
provided that at the end of a certain period either party to it
might terminate it on giving three months' notice and that, if no
notice was given the lease should run on until determined by
notice and that the tenant should pay rent "so long as he
should occupy" the same, the meaning of the lease is that the
tenant shall pay rent for the term of the lease though he may
abandon the demised land before the term expires without
notice."*

§ 357a. The collection of the rent by an agent. An agent who
collects rent must have been expressly authorized to do so before
any receipt given by him for rent received by him is binding
upon his principal. The fact that he had been authoinzed by
the landlord to execute a lease as his agent does not confer upon
him power to collect and give receipts for rent falling due under
the lease which he has executed. This however may be a circum-
stance which, connected with other facts and circumstances, may
raise a presumption in the minds of the jury that a special au-
thority to collect rents has either expressly or by necessary im-
plication been conferred upon him by the landlord."^

§ 358. The appraisal of the rent on the renewal of the lease.
Provisions for the fixing of the rent by an appraisal on the re-
newal of the lease are customary in leases providing for a re-
newal. Where the property is located in a city under circum-
stances with are likely to result in an increased valuation of the
premises and the lease is for a long term, as for example, twenty-
one years, a provision for re-adjustment of the rent on the ter-
mination of the term by a' competent appraisal is indispensable
as both parties are equally interested in having the rent re-ad-
justed from time to time on a fair basis. The landlord particu-
larly should provide in granting a lease for a long term with a
privilege of a renewal for another long term that the rent shall
be re-appraised at the end of each term. Usually, the appraisal
is a condition precedent to the renewal of the lease. Both parties
should attempt with fairness and equity to each other to carry
out the intention of the lease that an appraisal should be had.

93 Morrow v. Brady, 12 R. I. 131. Thompson v. Elliott, 73 111. 221,

fl^Lane v. Nelson, 31 Atl. Rep. 223; Cooley v. Willard, 34 111. 68;

864, 866, 167 Pa. St. 602. Hefflin v. Campbell, 5 Tex. Civ.

85 Smith V. Hall, 19 111. App. 17; App. 106, 23 S. W. Rep. 595.

568 LAW OF LANDLORD AND TENANT.

Neither party will be permitted to suffer by an unreasonable re-
fusal of the other party to have an appraisal. The subject is
peculiarly within the jurisdiction of equity and as is pointed out
in the subsequent paragraphs a court of equity will not hesi-
tate to assume control of the matter and deal out justice be-
tween the parties.

§ 359. The manner of the appraisal. It will be implied
though not stated in a stipulation for an appraisal of the rate
of rent by two appraisers selected by the parties both of whom
are to select a third that only disinterested and impartial per-
sons shall be selected. An award made by appraisers one of
whom is intimately connected in business and social relations
with one of the parties to the lease will for that reason be set
aside by the court.''® If this were not the rule it would result in
the i)arties each choosing his o"\\ti agent as an appraiser and the
appraisal or arbitration would then be merely an argument be-
tween the parties through the mouths of their agents leaving
the real appraisal to be made by the umpire alone. An appraisal
of rent according to the value of the premises upon a renewal
of a lease must be made according to the mode pointed out in the
provision of the lease which requires and permits an appraisal.
An appraisal or written determination of rent required by the
lease to be made by a specified number of appraisers is invalid
if it is made by a smaller number. The power to appraise being
of a private and personal nature and expressly delegated to a
particular number of persons must.be exercised by all of them.
Thus if it is provided that an appraisal shall be made by three
persons an appraisal signed by two only is invalid."^ If however
the stipulation is to appraise the rent by two appraisers or arbi-
trators and in case they cannot agree tlien they are to call in a
third and their award shall be final ; it will be implied that the
parties had in mind an award by the majority and such an award
or appraisal signed by two will be valid.'"*^ The parties to the

"0 Pool V. Hennessy, 39 Iowa, os Hobson v. McArthur, 16

192, 18 Am. Rep. 44. Peters (U. S.) 182; Quay v. West-

»7 Lowe V. Brown, 22 Ohio St. cott, 60 Pa. St. 163, 166. All three

463, 466; Cope v. Gilbert, 4 Denio must act, however, though an

(N. Y.) 347, 348; Green v. Miller, award or appraisal signed by two

6 .Johns. (N. y.) 39; Stose v. is binding. Stose v. Heissler, 120

Heissler, 120 111. 433, 11 N. E. Rep. 111. 433, 11 N. E. Rep. 161, 60 Am.

161, 60 Am. Rep. 563. Rep. 563.

NATURE AND INCIDENTS OF RENT. O&J

lease have the right to appear before the persons who are chosen
by them as appraisers to ascertain the rent. If the appraif^ers
are expressly appointed to ascertain the rent, and the manner in
which they are to ascertain it is not prescribed in the lease it may
safely and fairly be presumed that they are to do so by a consid-
eration of the facts which the parties shall place before them. The
right to produce evidence before those who are to ascertain the
rental value may be waived and the ascertainment of the rent m^y
be left to the knowledge and judgment of the appraisers alone.
Proof that the parties have waived their rights to produce evi-
dence before the appraisers must be satisfactory to the court. A
tvaiver of this right will not imply a waiver of the right of the
parties to appear before the umpire who has been selected by the
appraisers when they found it was impossible for them to agree.
Hence all parties are entitled to notice of all proceedings before
either appraisers or umpire and an award without such notice is
invalid.^®

§ 360. The result of a failure to fix the rent. A landlord,
who by withdrawing an arbitrator appointed by him prevents
the fixing of rent on a renewal lease cannot oust the tenant in
summary proceedings for non-payment of rent. A court of
equity will intervene and stay such a proceedings by injunction
in all cases where the tenant is precluded from interposing an
equitable defense in a summary proceedings. The court of
equity on a proper application having acquired jurisdiction will
also decree a specific performance of the covenant for a new
lease and will fix the rent at such a rate as it shall find to be
just and proper on all the proof.^ Or the court may direct that
the tenant shall pay rent while holding over at the rate specified
in the former lease.- Or the landlord may recover a reasonable
sum for u.se and occupation from a tenant holding over after a
failure to arbitrate or appraise the rent.^ A landlord who has
done all he is required to do under a stipulation providing that

09 Brown v. Lyddy, 11 Hun (N. tice of it. Norton v. Gale, 95 111.

Y.) 451, 456; Day v. Hammond, 57 533, 35 Am. Rep. 173.

N. Y. 479; Worthington v. Hewes, i Graham v. James, 30 N. Y.

19 Ohio St. 66. On the other hand, Super. Ct. (7 Rob.) Rep. 468. 473.

it has been held in one case that - Holsman v. Abrahams, 9 N. Y.

inasmuch as an appraisal of rent Super. Ct. Rep. 435, 437.

is not an arbitration, the parties " Stose v. Heissler, 120 111. 433,

of the lease are not entitled to no- 11 N. E. Rep. 101, 60 Am. Rep. 503.

570 LAW OF LANDLORD AND TENANT.

rent shall be determined by appraisers and who has failed, with-
out fault on his part to secure an appraisal may sue for and re-
cover a reasonable sum for the use and value of the premises. If
one attempt to secure an appraisal fails and no further at-
tempts are required to be made by the lease there is neither
reason nor justice in refusing to permit him to recover for the
use of the premises so long as the tenant continues in possession.*
And this being so if the appraisal has failed through no fault of
the tenant he will be treated as a tenant holding over after the
lease has expired and liable to pay rent only at the rate named
in the lease. If this is objectionable to the landlord he must
serve notice to quit or apply for a judicial appraisal of the rent
for a new term.

§ 361. The power of the court to make or to review an ap-
praisal of rent. In a proper case a court of equity will re-
view and correct an appraisal of the rent to be paid which is
alleged to be based upon the value of the premises as determined
by the appraisers.^ So, if through no fault of the tenant a^n ap-
praisal has not been made, a court of equity will, on his appli-
cation, make an appraisal of the rent based upon the value of the
premises.* So, if after an ineffectual attempt at an appraisal
one of the parties refuses to proceed any further in an attempt
to secure another appraisal, the court may itself appraise the
rent and appoint a referee or master to do it. The party who is
asking for the appraisal by the court must show that he has
done all that could be reasonably required of him for if one
party refuses to comply with the terms of the lease requir-
ing an appraisal the other party should not be prevented
from having the benefit of the appraisal." And while
the court will make the appraisal itself it will not compel ap-
praisers to act or decree a specific performance of an agreement
to name persons to appraise rent,® and the court will not appraise
the rental value before the time when, according to the terms of
the lease, it was to bo determined by an appraisal. And in all

4Heissler v. Stosc, 131 111. 393. c Tobey Furniture Co. v. Rowe,

39G, 23 N. E. Rep. 347, affirming 18 111. App. 293; Piggot v. Mason,

33 111. App. 39; Stose v. Heissler, 1 Paige (N. Y.) 412.

120 111. 433. ' Lowe v. Brown, 22 Ohio, 463,

r. Texas & P. R. Co. v. Society 467.

for Relief of Orphans, 56 Fed. Rep. s Young v. Wrightson, 11 Ohio

753. Dec. 104.

NATURE AND INCIDENTS OF RENT 571

cases the parties will have a reasonable time to secure the apprais-
al of the rent unless time is expressly made of the essence of the
contract.® An award or an appraisal of the rent which is to be
paid in the future will be presumed to have been honestly and
fairly made in the absence of proof of fraud. The proof of
iraud which will be sufficient to set aside an appraisal must be
fairly convincing. The appraisal ought not to be set aside if it
has been honestly made merely because the appraisers have
erred in their inferences from the proof before them, in their
misunderstanding or ignorance of the law, or in proceeding upon
an erroneous theory of the value of the land. To permit an
award or appraisal to be set aside which was not conformable to
what the court might have determined had it been the arbitrator
would render appraisals and arbitrations not only useless but
vexatious in the extreme and open also the door for litigation
without end. For a material mistake particularly if it be mu-
tual the court will set aside an award or an appraisal but not for
every mistake influencing the result of the appraisal. The mis-
take must be such a mistake as has prevented the appraisers
from applying those rules and theories to the appraisal which
they intended to employ. Their mistake mu.st be such a one as
prevented them from making an appraisal which was the result
of the exercise of their own reason and judgment. The mere
adoption of an erroneous theory of the value of the property, if
properly applied to the facts, though resulting in an erroneous
result does not invalidate an award which was honestly made for
this is a risk the parties take when they agree to an appraisal
and which they must therefore abide by.^^ A clause stipulating

9 Spann v. Eagle Machine Works, 21, 37 Atl. Rep. 304) the court said:
87 Ind. 474. "This case presents two ques-

10 Goddard v. King, 40 Minn. tions for decision: (1) Whether
164, 167, 41 N. W. Rep. 659; Dan- the court, by a master or other-
iels V. Willis, 7 Minn. 295; Fred- wise, can appraise the rent pay-
rikan v. M. L. Ins. Co., 62 N. Y. able to the complainants if the
392, 400; Perkins v. Giles, 50 N. arbitration provided for in the
Y. 228; Tyler v. Dyer, 13 Me. 41; lease has failed; and (2) Whether,
Hazeltine v. Smith, 3 Vt. 535; Elli- as a matter of fact, the arbitration
cott V. Coffin, 106 Mass. 365; Car- has failed. In answer to the first
ter V. Carter, 109 Mass. 306; Bos- question, we think it is clear that
ton Water Power Co. v. Gray, 6 the court has jurisdiction to do.
Met. (Mass.) 131. In a very late either directly or by its master,
case (Grosvenor v. Flint, 20 R. I. what the appraisors or arbitrators

572 LAW OF LANDLORD AND TENANT.

for an arbitration of disputes arising between the parties to the
lease and providing that an award which is the outcome of an
arbitration shall be final does not limit the right of action to the
amount which may be found due or in any way make the right
to sue for damages, conditional or dependent upon a submission
or an offer to submit to arbitration. A failure to arbitrate a dis-
pute is no bar to an action for damages upon other covenants in
the lease.^^

§ 362, The basis of the action for use and occuptaion. The
action for the use and occupation of the premises is based on an
implied contract. It is based upon privity of contract not on
privity of estate and the plaintiff must therefore prove a con-
tract express or implied to pay either an agreed compensation
for the use of the land or such sum as the use is reasonably
worth. The action for use and occupation cannot therefore be
maintained unless it appears that the relation of landlord and
tenant existed between the parties. And when one person occu-
pies land of another without any agreement, and it is not shown
that the occupant is a trespasser, or that the relation of landlord
and tenant does not exist, it will be presumed that he is in oc-
cupation as a tenant.^- An action for use and occupation can-
could have done under said provi- not be determined in the manner
sion of the lease, if it is shown provided for in the lease, by rea-
that the arbitration has in fact son of the refusal of one party to
failed. And refusal to agree to a the contract to do what in equity
third man constitutes such failure. it ought to do, the court will de-
Brock V. Dwelling House Insur- termine it upon the application
ance Co., 61 N. W. 67, 26 L. R. A. of the other.

623, 47 Am. St. Rep. 562; Niagara iiRowe v. Williams, 97 Mass.

Fire Insurance Co. v. Bishop, 154 163, 165; Dunsdale v. Robertson,
111. 9, 39 N. E. Rep. 1102, 45 Am. 2 Jones & Lat. 58; Scott v. Liver-
St. Rep. 105; Brown v. Harper, pool, 3 De Gex & .T. 334; Elliott v.
54 Iowa, 546, 6 N. W. Rep. 747; Royal Exch. Insurance Co., L. R.
Watson V. Duke of Northumber- 2 Exch. 237; Tobey v. County of
land, 11 Ves. Jr. Ii"j3. The cove- Bristol, 3 Story (U. S.) 819; Nute
nant to appraise the rent does not v. Hamilton Ins. Co., 6 Gray
stand alone, but is merely a sub- (Mass.) 182; Gray v. Wilson, 4
sidiary part of the lease in ques- Watts (Pa.) 39; Hill v. Moore, 40
tion. That is to say, the manner Me. 515.

of determining the amount of rent i-'Byrd v. Chase, 10 Ark. 802;

to be paid is a matter of form Murphy v, Hopcraft, 142 Cal. 43,
rather than of substance. And if 75 Pac. Rep. 567; Littleton v.
it appears that this question can- Wynn, 31 Ga. 583; Lathrop v.

NATURE AND INCIDENTS OF RENT.

573

not be maintained by the agent of the o-^Tier suing in his own
name/^ unless the occupant has dealt with him as the owner of
the premises and the identity of the real owner has not been
disclosed to the occupant/* The ow^ner of land who has agreed
to lease iron ore in the land for a term at a certain rent may
where no lease is executed maintain an action for use and occu-

Standard Oil Co., 83 Ga. 307, 9 S.
E. Rep. 1041; Oakes v. Oakes, 16
111. 106; Webb v. Weaver. 79 111.
App. 657; Curtis v. Hollenbeck, 92
111. App. 34; Hill v. Coal Valley
Co., 103 111. App. 41; Nance v.
Alexander, 49 Ind. 516; Cambridge
Lodge, etc. v. Routh, 163 Ind. 1,
71 N. E. Rep. 148, 150; Tinder v.
Davis, 88 Ind. 99, 101; Kieth v.
Paulk, 55 Iowa, 260, 7 N. W. Rep.
588; Fanning v. Stimpson, 13
Iowa, 42; Crouch v. Briles, 7 J. J.
Marsh. (Ky.) 255, 23 Am. Dec.
404; Burdin v. Ordway, 88 Me.
375, 34 Atl. Rep. 375; Illinois Cent.
R. Co. V. Ross, 26 Ky. Law R. 1251,
83 N. E. Rep. 635; Appleton v.
O'Donnell, 173 Mass. 398, 53 N.
E. Rep. 882; Carver v. Palmer, 33
Mich. 342, 344; Boston v. Binney,
11 Pick. (Mass.) 1, 22 Am. Dec.
353; Cass Co. Sup'rs v. Cowgill,
97 Mich. 448, 450, 56 N. W. Rep.
849; Strickland v. Hudson, 55
Miss. 235, 241; Knox v. Baily, 4
Mo. App. 581; Cohen v. Kyler, 27
Mo. 122; Edmondson v. Kite, 43
Mo. 176; Aull Savings Bank v.
Aull, 80 Mo. 199; McLaughlin v.
Dunn, 45 Mo. App. 645; Rosen-
berg V. Sprechie (Neb. 1905), 103
N. W. Rep. 1045; Janouch v. Pence
(Neb. 1903), 93 N. W. Rep. 217;
Skinner v. Skinner, 38 Neb. 756,
57 N. W. Rep. 534; Durrell v.
Emery, 64 N. H. 223, 9 Atl Rep.
97; Dixon v. Ahern, 19 Neb. 422,
14 Pac. Rep. 598; Sweesey v. Dur-
nall, 23 Neb. 531, 37 N. W. Rep.

523; Welcome v. Labonte, 63 N.
H. 124; Pendergast v. Young, 21
N. H. 234, 235; Chambers v. Ross,
25 N. J. Law, 293; Collyer v. Coll-
yer, 113 N. Y. 442, 21 N. E. Rep.
114; Lynch v. Onondaga Salt Co.,
64 Barb. (N. Y.) 558; Ettlinger
V. Degnon-McLean Cons. Co., 42
Misc. Rep. 215, 216, 85 N. Y. Supp.
394; Biglow v. Biglow, 75 App.
Div. 98, 100, 77 N. Y. Supp. 716;
Lamb v. Lamb, 146 N. Y. 317; Van
Arsdale v. Buck, 81 N. Y. Supp.
1017; Isaac v. Minkofsky, 29 Misc.
Rep. 347, 60 N. Y. Supp. 506; Pres-
ton V. Hawley, 130 N. Y. 296, 34
N. E. Rep. 906; Mitchell v. Pen-
dleton, 21 Ohio St. 664; Heidel-
bach V. Slader, 1 Handy (Ohio)
456; Pott V. Lesher, 1 Yeates (Pa.)
576; Brolasky v. Ferguson, 48 Pa.
St. 434, 22 L. I. 28; McClosky v.
Miller, 72 Pa. St. 151, 20 Pitts. L.
J. 163; Hen wood v. Cheeseman, 3
S. & R. (Pa.) 500; Bressler's Ap-
peal, 2 York (Pa.) 57; Seitzinger
V. Alspach, 42 L. I. 68; Blake v.
Preston, 67 Vt. 613, 32 Atl. Rep.
491; Lazarus v.- Phelps, 152 U. S.
81, 14 S. Ct. 477; Adsit v. Kauf-
man, 121 Fed. Rep. 355; Cobb v.
Kidd, 8 Fed. Rep. 695, 696; Car-
penter V. United States. 17 Wall.
(U. S.) 489, 495.

13 Evans v. Evans, 3 A. & E. 132,
137, 1 H. & W. 239.

14 Fisher v. Marsh, 6 B. & S. 411,
34 L. .L Q. B. 177, 11 .Tur. (N. S.)
795, 12 L. T. 604, 13 W. R. 834.

574 LAW OP LANDLORD AND TENANT.

pation against the person who has entered and occupied the
land. For the agreement is meant to create more than a mere
license and an occupant under it is a tenant at will.^° A lessee
who demises the land to another by parol at a weekly rental for
the whole tenn created by a written lease many maintain use
and occupation. Here the parties evidently meant that this
transaction should constitute a sublease and not merely an
assignment of the term. This construction . is fortified by the
consideration that if this be regarded as an assignment of a
term it will be invalid as not having been in writing.^® One who
pending an executory contract for a lease takes the attornments
of undertenants in possession and receives rent from them
places himself in the place of the original lessor. The occupation
of the undertenants is his occupation and his receipts of rent
from them is satisfactory proof of his occupation of the whole
premises in an action for use and occupation against him by the
original landlord.^'^ So where several persons rent premises to be
used as a synagogue in which seats are rented the proceeds of
which are applied in part to the payment of rent and in part
for general religious purposes the lessees may maintain an action
for use and occupation against one who occupies a seat.^® A ten-
ant whose term has expired may thereafter maintain use and
occupation against his undertenant for such period as the latter
holds over after the expiration of the term provided he himself
pays his rent for that period to his own landlord.^^ One to
whom a landlord has granted annuities payable out of the rents
and profits of the land may maintain an action for use and oc-
cupation against a tenant who was in possession at the time the
annuity was granted for all rents for the period from the date
the tenant was notified of the annuity down to the date he was
ousted for nonpayment of rent.-** Only one who has the legal
title to the land can maintain an action for use and occupation.^"^

15 Jones V. Reynolds, 4 A. & E. lo Levi v. Lewis, 6 C. B. (N. S.)

805, 6 N. & M. 441. 766, 28 L. J. C. P. 304, 5 Jur. (N.

10 Pollock V. Stacy, 9 Q. B. 1033, S.) 1048, affirmed in 9 C. B. (N. S.)

1035, 16 L. J. Q. B. 132, 11 Jur. 267. 872, 30 L. J. C. P. 141, 7 Jur. (N.

I'Neale v. Swind or Sweeney, S.) 759, 9 W. R. 388.

2 C. & J. 377, 4 Tyr. 464, 1 L. J. 20 Birch v. Wright, 1 T. R. 378,

Ex. 118. 384, 1 R. R. 223.

"* Israel v. Simmons, 2 Stark 21 Grady v. Ibach, 94 Ala. 152,

356. 155, 10 So. Rep. 287.

NATURE AND INCIDENTS OP RENT. 575

Tlie beneficiary under a trust cannot maintain such an action 22
nor can a mortgag-ee not in possession maintain it.^^ A grantee
of the reversion may maintain an action against the tenant of
his grantor. =^* He may recover for the subsequent occupation
where the tenant with notice of the conveyance paid over the
rent to the prior landlord.^^ It has been held that where a
town or city appropriates land for public use or takes land by
mistake believing it to be its own the owner can recover in an
action for use and occupation.^a So the owner can recover for
use and occupation against an assig-nee of the lessee," but an
action for use and occupation cannot be maintained where one
who is in the relation of child to the owner occupies the land.
There is no implication of any contract to pay rent where the
relationship between the owner and the occupant is that of pa-
rent and child. The relationship of father-in-law and son-in-
law or of uncle and niece does not rebut the presumption of a
contract to pay rent.^*

§ 363. The title of the landlord. The plaintiff in an action
for the value of the use and occupation of premises need neither
allee nor prove a valid title in himeslf. He must allege that
he is the owner and the occupant having received the benefit of
the premises is thereafter estopped to deny the landlord's title.^^
The validity of the landlord's title cannot be denied. The oc-
cupant cannot escape paying the claim of the o^^Tier where he
has used the premises by the defense that the owner's title is not
good.^*' Nor can the conveyance under which the owner held be

22 Grady v. Ibach, 94 Ala. 152, 27 Weaver v. Southern Oregon
155, 10 So. Rep. 287. Co., 31 Oreg. 14, 48 Pac. Rep. 167.

23 Turner v. Cameron's, etc., Ry., 2s Thompson's Estate, 1 Kulp
5 Ex. 932, 20 L. J. Ex. 71. (Pa.) 235; Sterrett v. Wright, 27

24 Birch V. Wright, 1 T. R. 378, Pa. St. 259.

1 R. R. 228; Lumley v. Hodgson, 29 Lewis v. Willis, 1 Wils. 314;

16 East, 99, 14 R. R. 315; Rennie Curtis v. Spitty, 1 Ring. (N. C.)

V. Robinson, 7 Moore, 539, 1 Ring. 17; Hull v. Vaughan, 6 Price 157

147, 1 L. J. (O. S.) C. P. 30, 25 R. so Sampson v. Schaeffer, s' Cal.

^ ^^"^^ 196; Broughton v. Smart, 59 III.

25 Lumley v. Hudson, 16 East, 440: Codman v. Jenkins, 14 Mass.
99, 14 R. R. 315. 93; Hill v. Boutell, 3 N. H. 502;

26 Beardsley v. Town of Nash- North Haverhill Water Co. v Met^
ville, 64 Ark. 240, 41 S. W. Rep. calf, 63 N. H. 427; Carpenter v.
853; McCardell v. Miller, 22 R. I. Stillwell, 3 Abb. Prac. Rep. (N. Y.)
96. 46 Atl. Rep. 184. 459; Blumberg v. McNear, 1 Wash.

570

LAW OF LANDLORD AND TENANT.

impeached upon the ground that it was made for the purpose of
defrauding the creditors of the grantor.^^

§ 364. Occupation must be proved. The landlord must in an
action for use and occupation usually show an actual occupation
of the premises. This has been so determined under the English
statute which entitles the landlord to recover a reasonable sat-
isfaction for the use and occupation of premises which have been
occupied or held under a demise. The remedy given by the stat-
ute is not identical with an action on a covenant to pay rent.
Hence the action given by the statute depends either on a.n act-
ual occupation or on an occupation which the tenant might have
had if he had not voluntarily abandoned the premises.^- Both at
the common law and vmder the English and American statutes
in an action for use and occupation it is not necessary to allege
or to prove that the defendant has been or is in the manual oc-
cupation of the premises, for which a recovery is sought. It is
sufficient to show that the landlord has actually conferred the
power to occupy and enjoy.^^ Sending a woman to clean a

T. 141; Vernam v. Smith, 15 N. Y.
327. 329; Cooke v. Loxley, 5 T. R.
4; Phipps V. Schulorpe, 1 B. & Al.
50; Fleming v. Gooding, 10 Bing.
549; Dolby v. lies, 11 Ad. & El.
335.

31 Balch T. Patten, 45 Me. 41, 71
Am. Dec. 526.

32 Naish V. Tatlock, 2 H. Black.
319, 320, 3 R. R. 384, 388; White-
head V. Clifford, 5 Taunt. 518;
Richardson v. Hall, 1 B. & B. 50,
3 Moore, 307; Nation v. Tozer, 1
C. M. & R. 172, 4 Tyr. 561; How
V. Kennett, 3 Ad. & E. 659, 5 N.
& M. 1; Town of D'Henrick, 13
C. B. 892, 1 C. L. R. 335, 17 Jur.
1102; Standen v. Christmas, 10
Q. B. 135, 16 L. .7. Q. B. 265, 11
Jur. 694; Lowe v. Ross, 5 Ex. 553,
555, 19 L. J. Ex. 318; Edge v.
Strafford, 1 C. & J. 391; Dawes v.
Dowling, 31 L. T. 05, 22 W. R. 770.
Contra, Pinero v. Judson, 3 M. &
P. 497, 6 Bing. 206, 8 L. .1. (O. S.)
C. P. 19, 31 R. R. 388; Clarke v.

Webb, 1 C. M. & R. 29, 4 Tyr. 673,
3 L. J. Ex., 300; Woolley v. Nat-
ling, 7 Carr. & P. 610; How v. Ken-
nett, 3 A. & E. 659, 667, 5 N. & M.
1, 1 H. & W. 391, 4 L. J. K. B. 220.
A tenant who agrees to take fur-
nished rooms, but who does not
enter, is not liable for use and
occupation. Edge v. Strafford, 1
C. & J. 391, 1 Tyr. 293, 9 L. J. (O.
S.) Ex. 101.

33 Little V. Martin, 3 Wend. (N.
Y.) 219; Peatherstonhaugh v.
Bradshaw, 1 Wend. (N. Y.) 134;
Westlake v. De Graw, 25 Wend.
(N. Y.) 669; Hall v. Western
Trans. Co., 34 N. Y. 284, 285;
Sherwood v. Gardner, 2 City Ct.
Rep. (N. Y.) 64; Smith v. Genet,
2 City Ct. Rep. (N. Y.) 88; Jones
V. Reynolds, 7 Car & P. 325; Wool-
ley V. Watling, 1 Car. & P. 610;
Gibson v. Carmthorpe, 1 Dowl. &
Ry. 205; Baker v. Holtzapffel, 4
Taunt. 45; Izon v. Gutne, 5 Bing.
501 ; Pinero v. Judson, 6 Bing. 20G;

NATURE AND INCIDENTS 01'' RENT.

0/ t

house rented and workmen to paper the rooms,^* or the putting
up of a to-let sign by one who has agreed to become a tenant
from a certain date is sufficient occupation to sustain an action. •^'^
An occupation by an undertenant or by a person whom the de-
fendant permits to remain in the premises as a care taker
will support an action for use and occupation against the
original tenant.^" The accidental retention of the key of the
premises by a tenant who has quitted possession and removed
his goods is no evidence of occupation which will render the
tenant liable in an action for the reasonable value of the use
and occupation of the premises."' An action for use and occu-
pation may be maintained against two or more persons who have
become jointly liable to a landlord on parol demise though the
occupation is by one of them only.^* A tenant who enters on the
possession of premises at a yearly rent with an agreement that
no rent is to be paid until the premises are repaired and who
quits possession because the premises are not repaired is liable
for use and occupation. ^^ Where land is leased by an instru-
ment not under seal for mining purposes an action for use and
occupation may be maintained if the defendant has ever taken

Waring v. King, 8 M. & W. 571;
Smith V. Faust, 2 Man. & G. 841.

34 Smith V. Faust, 2 Man. & G.
841, 3 Scott, 172.

35 Sullivan v. Jones, 3 Car. & P.
579.

36 Bull V. Sibbs, 8 T. R. 327;
Waring v. King, 8 M. & W. 571, 11
L. J. Ex. 49; Ibbs v. Richardson,
1 P. & D. 618, 9 A. & B. 849, 8 L.
J. Q. B. 126, 3 Jur. 102.

37 Gray v. Bompass, 11 C. B. (N.
S.) 520, 5 L. T. 841.

38 Glen V. Dungey, 4 Ex. 61, 64,
18 L. J. Eq. 359; Christy v. Tan-
cred, 7 M. & W. 127, 10 L. J. Ex.
228, 4 Jur. 1064; Christy v. Tan-
cred, 9 M. & W. 438, 11 L. J. Ex.
109.

39 Smith V. Eldridge, 15 C. B.
236, 2 C. L. R. 855. "The truth is
that the occupation of land by a
person bound to pay some remu-

neration for it, without the amount
or time of payment being fixed,
was and is now of rare occurrence.
When it does occur the implied
contract is raised by law from the
fact that land belonging to the
plaintiff has been occupied by the
defendant by the plaintiff's per-
mission, the obligation is co-ex-
tensive with and measured by the
enjoyment. As soon as the occu-
pation ceases, the implied contract
ceases, and, as no express time is
limited, the remuneration must
necessarily accrue from day to
day. This state of things is prima
facie supposed to exist in all ac-
tions for use and occupation, at
least so far as regards time of pay-
ment." By Lord Denman, C. J.,
in Gibson v. Kirk, 2 G. & D. 252,
on p. 255.

O ( b LAW OF LANDLORD AND TENANT.

possession ; and if lie lias taken possession, he is liable for all sub-
sequent rent until the determination of the tenancy, whether he
has continued to work for minerals or not; but if the defendant
merely caused holes to be dug on the land, and had them im-
mediately filled up merely to ascertain if there were any ore in
the land this would not be a taking of possession.*" The pay-
ment of rent by an occupant of premises or the suffering of a dis-
tress for rent due by him is a sufficient recognition of the title
of the landlord and of the relation of landlord and tenant to
support an action for use and occupation. This is the rule
though the occupant who pays the rent came into possession
under the grantor of him to whom he pays rent.*^

§ 365. Against whom action for use and occupation can be
maintained. The action may be maintained against any one
who stands in the relation of tenant to the owner. He may
maintain the action against an occupant who continues in pos-
session after he has been told that he will have to pay rent,*^
though he refuses to pay,*^ against a person who encloses a por-
tion of the land with his own land,** against a person who, hav-
ing a mortgage on a stock of goods in a leased store, takes pos-
session of it and sells the s-dine at retail,*^ or against a tenant
at sufferance.*® The action may be maintained against a per-
son who purchases the stock of a prior tenant and who enters
and offers to pay rent though the prior term has not been sur-
rendered by the tenant.*'^ A corporation which has occupied
and iLsed land for corporate purposes may be sued for use and
occupation though there be no lease under seal,-*^ but only the
value of the actual occupation can be recovered.*" A corpora-
te Jones V. Reypolds, 7 Car. & P. *-' Hatch v. Van Dervoort, 54 N.
335. J. 511, 34 Atl. Rep. 938.

41 Panton v. Jones, 3 Camp. 372, 4o Williams v. Ladew, 171 Pa.
14 R. R. 757; Dolby v. lies, 11 A. St. 369, 33 Atl. Rep. 329.

& E. 335, 3 P. & D. 287, 9 L. J. Q. 47 Phipps v. Sculthorpe, 1 B. &

B. 51, 4 Jur. 432. Aid. 50, 18 R. R. 426. See, also,

42 111. Cent. R. R. Co. v. Thomp- Hyde v. Moakes, 5 Car. & P. 42.
son, 161 III. 159, 162, 5 N. E. Rep. 48 Lowe v. L. & N. W. Ry., IS
117; Griffin v. Knisely, 75 111. 411; Q. B. 632, 21 L. J. Q. B. :'.(;i, 17
Higgins V. Halligan, 46 111. 173. Jur. 375.

43 Gillespie v. Hendreu (Mo. *!> Fiuley v. Bristol & E.x. Ry.,
App.), 73 S. W. Rep. 361. 17 Ex. 409, 7 Parlw. Case, 449, 21

44 Abbey v. Shiner, 5 Tex. Civ. L. J. Ex. 117.
App. 287, 24 S. W. Rep. OL

NATURE AND INCIDENTS OF RENT. 579

lion may sue for use and occupation persons who have occupied
its land as tenants.^" An entrj- by one of two executors of a
tenant for years is not the entry of both so as to make them
both liable as individuals in an action for use and occupa-
tion.^^ The executor who enters is liable personally for use and
occupation and not as representing his estate. °- An action can-
not be maintained against one who holds lands adversely," nor by
a vendor against a vendee where the contract of sale is re-
scinded,^* nor, against one who by mistake encloses land which is
not his own and grazes his stock upon it though on premises of
the owner.^^ So, also, a person whom the lessee takes into his
house as a housekeeper ^" or who lives with the lessee and shares
the expense of the family.^" or who occupies a store jointly under
a contract which does not make him a partner of the lessee,^^
is not liable to the lessor for the use and occupation of the prem-
ises. And in any case where the occupant proves that he ex-
pressly repudiated any tenancy, an action will not be main-
tained.^® An assignee in bankruptcy is not liable for use and
occupation in a case where the bankrupt was the tenant of a
store unless the assignee in bankruptcy actually takes the lease
as assignee and enters into possession under the lease. In such
case where the assignee in bankruptcy finds a lease and a stock
of goods in leased premises among the assets coming into his pos-
session and he enters the store, it is a question for the jury
whether he enters the premises as a tenant or merely for the
purpose of removing and selling the goods. Upon this ques-
tio*n the acts and statements of the assignee and tlie length of

50 Stafford Corporation v. Til, 4 H. 53, 5 Atl. Rep. 903; Biglow v.
Bing. 75, 12 Moore, 260, 5 L. J. Eiglow, 77 N. Y. S. 716; Abbey v.
Q. B. 77, 29 R. R. 511. Shiner. 5 Tex. Civ. App. 2S7, 24

51 Nation v. Tozer, 1 C. M. & R. S. W. Rep. 91.

172, 4 Tyr. 561, 3 L. J. Ex. 234. o4 Belger v. Sanchez (Cal. 1902),

•-;; Nixon v. Quinn, Ir. R. 2 C. L. 70 Pac. Rep. 738.

247. '-■' Abbey v. Shiner, 5 Tex. Civ.

o3 Allen V. :\Iacon, D. & S. R. Co. . App. 287, 24 S. W. Rep. 91.

(Ga.), 33 S. E. Rep. 696; Emery ss Tinder v. Dan's, SS Ind. 99.

V. Emery, 87 Me. 281, 32 Atl. Rep. 07 Austin v. Thomson. 45 N. H.

900; Roxbury v. Huston, 39 Me. 113.

312; Goddard v. Hall, 55 Me. 579; &« Carver v. Palmer, 33 Mich.

Boston V. Binney, 11 Pick. (Mass.) 342.

1, 9, 22 Am. Dec. 353; Swift v. -"Blake v. Preston, 67 Vt. 613,

New Durham Lumber Co., 64 N. 32 Atl. Rep. 491.

580 LAW OF LANDLORD AND TENANT.

time he remains in the premises and the use he makes of them
are relevant. If he uses the premises as a place to sell the goods
it may be fairly inferred that he accepts the assignment of the
lease. But merely selling the goods in the premises for a few
days is not a sufficient occupation of them to furnish a basis
for an action of use and occupation though perhaps an action
in assumpsit for debt would lie.^° A landlord cannot maintain
use and occupation for a year's rent against the assignees of a
bankrupt tenant from year to year where he becomes bankrupt
in the middle of the year and the assignee enters and retains
possession for the remainder of the year. This is not to say
that the landlord may not sue and recover rent on a lease under
such circumstances where the assignee has not promptly dis-
claimed. But inasmuch as the action for use and occupation is
based solely on the occupation of the person sued, the landlord
cannot compel an assignee to pay for any use and occupation
except by himself in the absence of an express agreement on the
part of the assignee in bankruptcy to pay the reasonable value
of the lessee's use and occupation before the assignment.®^ Nor
will an action for use and occupation be maintainable against
an assignee in bankruptcy for an increased rent M'hich the bank-
rupt had agreed to pay his landlord in consideration of im-
provements executed by the landlord.*^- The question of what
the premises are reasonably worth is always for the jury. Evi-
dence may be received by them showing what rent had been
formerly paid for it either by the defendant or some prior ten-
ant though they are not thereby bound to infer that the reason-
able value of the premises is precisely what they have been leascnl
for."^ The jury may give the landlord a larger sum for the
continued occupation than for the original occupation, if there
are circumstances to show that such increased rent was expected
by the landlord.

§ 366. Parol evidence to prove use and occupation. The re-
lation of landlord and tenant as well as the occupation of the
premises in an action for use and occupation may be proved by

60 How V. Kennett, 3 A. & E. 659, 62 Lambert v. Norris, 2 M. & W.
667, 5 N. & M. 1, 1 H. & W. 391, 4 333, 6 L. J. Ex. 109.

L. J. K. B. 220. 63 Thetford Corporation v. Tyler,

61 Naish V. Tatlock, 2 H. Bl. 320, 8 Q. B. 95, 15 L. J. Q. B. 33. 10 Jur.
3 R. R. 384. 68.

NATURE AND INCIDENTS OF RENT. 581

jiarol.*"* Some cases have held that such evidence is not ad-
missible to prove the relation of landlord and tenant if there
be a lease in writing,^^ but it has also been held that parol
evidence would be received in an action for use and occu-
pation though there was a written agreement."® This rule
simply amounts to this, that where the landlord sues for use
and occupation and has no written lease signed by the occupant
he may prove his case by parol evidence and he will not be dis-
missed merely because the occupant shall subsequently prove a
written lease signed by the landlord.®^ Thus, the production of
a written lease under seal and executed by the landlord but
never delivered to the tenant because the latter had failed to
l)ay a certain sum of money upon the payment of Avhich he
was to receive his lease does not defeat an action for use and
occupation.®* In an action for use and occupation, a lease void
under the statute of frauds, though not admissible or necessary
to prove the relation of landlord and tenant, may be consulted
to calculate the amount of rent due on it and thus be a. guide to
fix the value of the use and occupation.®® But the rent fixed
in the void lease or other writing while it must be given to the
jury to aid them in determining value, is by no means conclusive
on them as regards this question,'" or that such an under-
standing was not repudiated by the tenant.'^

64 Gibbon v. Kirk, 1 Q. B. 850, 1 986, 26 L. J. Q. B. 36, 3 Jur. (N.
G. & D. 252, 253, 10 L. J. K. B. 297, S.) 212, 5 W. R. 47.

6 Jur. 99, following Wilkins v. «9 De Medina v. Poison, Holt, N.

Wingate, 6 Term Rep. 62; King P. 47.

V. Fraser, 6 East, 348. See, also, '« Tomlinson v. Day, 5 Moore,

Egler V. Marsden, 5 Taunt. 25; 558, 2 Br. & B. 680, 23 R. R. 541.

Beverly v. Lincoln Gas Co., 6 Ad. "^ Elgar v. "Watson, Car. & M.

.& E. 839, 2 N. & P. 283. 494. It is a general rule in all

65 Rex V. Rawdon, 3 M. & Ry. actions brought on an implied or
426, 8 B. & C. 708, 7 L. J. (O. S.) oral contract that after the plain-
K. B. 84; Brewer v. Palmer, 3 Esp. tiff has proved a contract by oral
213; Turner v. Power, 7 B. & C. evidence, without an objection,
625, M. & M. 131, 6 L. J. (O. S.) that there is a writing in existence
K. B. 122. he should not be nonsuited be-

«c Watson v. King, 3 C. B. 608, cause the defendant produces a

609; Tyrwhitt v. Lambert, 3 P. & written contract, particularly if

D. 676, 10^ A. & E. 470; Elliot v. for any reasons, as, for example,

Rogers, 4 Esp. 59. it being unstamped, it was not ad-

«7 Elliott V. Rogers, 4 Esp. 59. missible in evidence. Fielder v.

68 Gudgen v. Besset, 6 El. & Bl. Ray, 3 M. &■ P. 659, 6 Ring. 332, 4

582 LAW OF LANDLORD AND TENANT.

§ 367. Defenses in an action for use and occupation. The
occupant may show that he was holding adversely to the owner.
It is relevant for him to prove all facts which would rebut the
presumption that an agreement or contract to pay rent existed.
He may also show that he never had the occupation or that he
was deprived of it.'^ Thus, he may prove tliat by the failure of
the landlord to repair according to agreement, he has been de-
prived of the use and occupation of the premises.'^ But the
occupant of the premises cannot defeat the recovery of the value
of their use by proving that if he had not occupied them they
would have been vacant.'*

§ 368. Pleading in an action for use and occupation. A
declaration or complaint in an action for use and occupation
should set forth the title of the landlord, the possession of the
tenant, the letting by the former to the latter, the occupation
for a period specified and allege the reasonable value of such
occupation.''^ The complaint need not allege the particulars of
the occupation by the defendant.'" A complaint which does not
allege an agreement to pay the rent express or implied is de-
fective."

Car. & P. 61, 8 L. J. (0. S.) 65, 74 Newberg v. Cowan, 62 Miss.

31 R. R. 429; Doe d. Wood v. Mor- 570.

ris, 12 East, 237; Reed v. Deere, "s Thompson v. Fox, 45 N. Y.

7 B. & C. 266, 2 Car. & P. 624, 31 Rupp. 1046, 20 Misc. Rep. 421.

R. R. 190, 193; Stevens v. Pinney, tg wilkins v. Wingate, 6 T. R.

8 Taunt. 327. 62; King v. Fraser, 6 East, 348,
T2Lockwood V. Lockwood, 22 354; Davies v. Edwards, 3 M. & S.

Conn. 425, 429; How v. Kennet, 3 380; Gibson v. Kirk, 1 G. & D. 252,

A. & E. 659, 30 E. C. L. 175; Rich- 255.

ardson v. Hall, 1 B. & B. 50, 5 E. 7- Indianapolis, D. & W. Ry. Co.

C. L. 14. V. First Nat. Bank (Ind. Sup.), 33

'■■i Potter V. Truitt, 3 Har. (Del.) N. E. Rep. 679.
331.

CHAPTER XVI.

THE SECURITY FOR THE RENT.

§ 369. Deposit by the lessee as a security for payment of rent.

370. Tlie tenant's riglit to the return of his deposit.

371. Deposit made by a tenant with landlord on contract to make a

lease.

372. The general rule as to liquidated damages.

373. Chattel mortgage to secure the payment of the rent.

374. Construction of an agreement to give security.

375. When the principal and surety on a lease may be sued jointly.

376. General rule as to the liability of the guarantor.

377. Surety's liability upon a renewal of lease.

378. The discharge or release of the surety.

§ 369. Deposit by the lessee as a security for payment of
rent. Money which has been deposited by the tenant in the
hands of the landlord, or of some other person, and which by
the express terms of the lease is described as a deposit as secu-
rity for rent or for the performance of some other covenant of
the lease will, as a rule, be regarded b}" the courts as a penalty
merely and not liquidated damages. It is always immaterial
that it is called liquidated damages or that it is provided that
the deposit shall be forfeited as liquidated damages.^ Particu-
larly is this true when the onty breach of covenant by the lessee
is a breach of the covenant to pay rent and the deposit is out
of all proportion to the rent due. It is by no means difficult to
ascertain the legal damages suffered by the lessor where the
lessee neglects to refuses to pay rent and for that reason is dis-
possessed. The presumption in such cases is that the lessor re-
sumed the possession of the premises and has re-let them and
if he has done this it is difficult to see any fairness in the prop-

1 D'Appuzo V. Albright, 76 N. Y. vided for in a lease for the breach

Supp. 654; Bernstein v. Heine- of a provision are greatly in ex-

mann, 23 Misc. Rep. 464, 51 N. Y. cess of the actual damages, they

Supp. 467; Carson v. Arvantes, 10 will be disregarded. Sharpless v.

Colo. App. 382, 50 Pac. Rep. 1080. Murphy, 7 Del. Co. (Pa.) 22.
Where the liquidated damages pro-

584 LAW OF LANDLORD AND TEN.VNT.

osition that he can receive the rent after his lessee has vacated
the premises and at the same time retain a large sum of money
as damao:es which sum may be three or four times the actual
damages. At the most the deposit will be regarded as security
only and if the lessor elects not to accept a surrender he may
exhaust the deposit by applying it to arrears of rent as it falls
due. This, however, is the most favorable construction that the
court will put upon the matter and on the other hand, if the
lessor assumes possession and the loss of rent is readily ascer-
tainable and particularly if the loss be small, will treat the de-
posit as a penalty only and will consider that the lessor has
waived any claim he might have to it, either as liquidated dam-
ages or as security for the rent by his action in re-entering upon
the premises.- Where it is covenanted in the lease that a sum
paid to the landlord by the tenant may be retained by the former
in case the tenant is dispossesssed from the premises by due
process of law^, the sum thus to be retained is presumptively
liquidated damages and not a penalty. The money deposited
under such circumstances is to be retained not merely upon a
failure by the tenant to pay any one instalment of rent as it
becomes due, but to reimburse the landlord for the loss of all
subsequently accruing instalments of rent, and such being the
case, it is not material whether the sum mentioned is in the
opinion of the court too great or too small.^ It is permissible
for the parties to fix upon an amount as liquidated damages for
a breach of the lease by the tenant and to require him to deposit
such sum in the hands of the landlord. In the absence of an
express stipulation to that effect and having in view the fact
that the damages for a breach of contract to pay rent are easy
of computation and ascertainment, the deposit will be regarded
as a penalty and the balance thereof, after deducting the rent
due, belongs to the tenant,"* who may maintain an action to re-

2 Caesar v. Robinson, 174 N. Y. 3 Longobardi v. Yuliano, 33

492, 498, 67 N. E. Rep. 58, revers- Misc. Rep. 472, 67 N. Y. Supp. 902.

ing 71 App. Div. 180, 75 N. Y. * Chaude v. Shepard, 122 N. Y.

Supp. 544; Chaude v. Shepard, 122 397, 400, 25 N. B. Rep. 358; Scott

N. Y. 397; Scott v. Montells, 109 v. Montells, 109 N. Y. 1; Kahn v.

N. Y. 1, 14 N. Y. S. R. 21, 28; Tobias, 16 Misc. Rep. 83, 37 N. Y.

Weekly. Dig. 159, 15 N. E. Rep. Supp. G32.

720. '

SECURITY FOR THE RENT.

585

cover the same.' "Where, however, a tenant is dispossessed for
not paying rent, the amount of which is the same as the amount
which he has on deposit for security, he cannot recover any
part of the deposit.*^

§ 370. The tenant's right to the return of his deposit. A
landlord to whom money or personal property is delivered by
the tenant to be held by the landlord as security for the pay-
ment of the rent or the performance of covenants, is entitled
to its absolute possession during the term, and he may maintain

s The failure to pay rent does
not operate as a forfeiture. If the
deposit is for indemnity the land-
lord is not confined to it for a rem-
edy. If it is deposited only as se-
curity for rent, the landlord must
plead as a counterclaim any cause
of action he may have against the
tenant for the breach of any other
covenant in an action by the ten-
ant against him to recover the
deposit. Scott v. Montells, 14 N. Y.
S. R. 21, 109 X. Y. 1, 4, 15 N. E.
Rep. 720, 28 Weekly Dig. 159.

c Sang Shing v. Sire, 15 Misc.
Rep. 139, 36 N. Y. Supp. 466. But
see and compare Rosenquist v.
Canary, 15 Misc. Rep. 148, 36 N.
Y. Supp. 979. It was provided that
a lessor might, in case of a va-
cancy "during the term," enter and
relet the premises with a deposit
to meet any deficiency occurring
by reason thereof. The ousting of
the tenant for non-payment of rent
is a vacancy "during the term,"
and a deficiency having occurred
thereby, the landlord is entitled
to recover the deposit. Baldwin
V. Thibaudeau, 17 N. Y. Supp. 532.
28 Abb. New Cases, 14, 43 N. Y.
St. Rep. 157. In Pennsylvania a
lessor may, under the act of March
25, 1825, § 2, compel a tenant to
give security or to vacate. The
tenant must give security before

proceedings to oust him have be-
gun. Ward V. Wandell, 10 Pa. St.
98. A subtenant in possession by
right or by the landlord's consent
may tender the security for rent
to protect himself, but a subtenant
in possession when the lease for-
bids subletting has no right to do
so, nor can he compel the original
lessor to accept it. Shermer v.
Paciells, 161 Pa. St. 69, 28 Atl.
Rep. 995, 34 W. N. C. 252. "The
circumstance that the deposit is
described in the lease as liquidated
damages for a breach of the agree-
ment is not at all conclusive. The
character of the deposit, whether
liquidated damages or a penalty,
depends upon the intention of the
parties as disclosed by the situa-
tion and by the terms of the in-
strument. The deposit is not nec-
essarily to be regarded as liqui-
dated damages, although it is ex-
pressly so stated in the instru-
ment. Whether it is that or a
penalty depends upon the nature
of the transaction and the inten-
tion of the parties. This has been
frequently held in the case of an
ordinary lease, and where the
amount was largely out of propor-
tion to the damages suffered by
the breach of the lease " By the
court in Caesar v. Robinson, 174
N. Y. 492, on page 496, 67 N. E.

586 LAW OP LANDLORD AND TENANT.

an action to recover possession against any person.' A tenant
Avho has paid all rent due and who has properly performed all
the covenants and conditions of the lease on his part is en-
titled to have his deposit returned and may sue and recover
the same upon implied contract or upon the principle of a
conversion of the same by the landlord after a demand and
refusal to pay. This he may do as soon as the lease is ter-
minated, whether by the natural expiration of the term by
the efflux of time or by a surrender or a rescission. The land-
lord may show in such an action that the tenant has failed
to pay the rent or other charges as they have accrued and he
may obtain judgment for the amount which the tenant is in.
arrears. If the tenant has failed to pay rent he has no standing
to demand that a deposit to secure rent for the last two months
of the term shall be applied to other months for which rent is
due. ' Nor can he resist a dispossess proceedings upon such
grounds.^ A tenant who has deposited money with his landlord
as security in case of his failure to perform, and particularly in
case of his default in paying the last three months of rent re-
served, may, where he is in default before the three last months
and the lease is surrendered, recover from the lessor the amount
of deposit in excess of the rent which is due and the taxes which
the tenant has agreed to pay.^

Rep. 582, reversing 71 App. Div. money deposited was concerned.

180, 75 N. Y. Supp. 544. the parties were merely debtor and

7 Chamblee v. McKenzie, 31 Ark. creditor, and that the tenant
155. could not, while continuing to re-

8 Rosenquist v. Canary, 15 Misc. main in the premises, refuse to
Rep. 148, 36 N. Y. Supp. 979. pay his rent and ask to have the

9 Hecklan v. Hauser, 71 N. J. deposit applied to the rent merely
Law, 478, 59 Atl. Rep. 18. A ten- because the landlord was a bank-
ant, as security that he would rupt and the demised premises
faithfully perform all the cove- were threatened with a foreclo-
nants of the lease, deposited a sum sure suit, on a mortgage which
of money in the hands of his land- antedated the lease. The principle
lord, on which the latter was to laid down in this decision as above
pay interest. The money thus de- set forth is manifestly unjust to
posited was to be applied to pay the tenant in taking his special
the rent for the last six months deposit and applying it to the
of the term. On the bankruptcy debts of the bankrupt landlord,
of the landlord during the term In re Banner, 149 Fed. Rep. 936.

it was held that, so far as the

SECURITY FOR THE RENT, 5S7

§ 371. Deposit made by a tenant with landlord on contract
to make a lease. The question whether a sum of money is a
penalty or is liquidated damages frequently arises when parties
enter into an agreement to make a lea.se, and the tenant deposits
with or pays to the landlord a certain sum of money to he ap-
plied to the rent as soon as the formal lease is executed. If,
through the fault of the prospective tenant and without any
fault on the part of the landlord, the future lease is not exe-
cuted, the deposit is forfeited and becomes the property of the
landlord if it was not a penalty but liquidated damages. If.
on the other hand, the lease is not executed through the fault
of the landlord, the tenant may recover his deposit in an action
at law. The question whether the landlord is limited in his
damages for a failure of the tenant to make the lease to the
amount deposited with him by the tenant frequently arises and
is only to be answered after it has been detennined whether the
deposit is a penalty or liquidated damages. If the deposit is
liquidated damages, then the landlord is limited to the recovery
of that amount and he cannot recover further damages for the
failure of the tenant to execute the lease. Thus, where a tenant
who had agreed to take a lease and had deposited a sum of
money with the owner of the premises to show his good faith,
fails to execute a lease, the extent of the owner's recovery
for a breach of contract to take the lea.se was the sum deposited
which was in fact liquidated damages.^" So, generally a de-
posit to secure the fulfillment of the depositor's agreement to
take a lease and which is not a penalty for a refusal to take
it, can be retained only in case of damages actually resulting
from the refusal to take the lease. In the absence of an allega-
tion and proof of actual damages, there is no presumption that
any damages were received as the result of the refusal to ac-
cept the lease, and where damages are not shown, the depositor
is entitled to the return of his deposit.^^ For if from the terms
of the agreement to execute a lease, it is clear that the deposit
was to be liquidated damages, the landlord cannot retain it un-
less he proves that he has been damaged. In determining
whether a deposit is liquidated damages or a penalty, the fol-
lowing consideration must be kept in view. ^Vhere the subject

i"SchlumT)f V. Sasake, 38 Wash. n Weinberg v. Greenberger, 93

278, 80 Pac. Rep. 457. N. Y. Supp. 530.

588 LAW OF LANDLORD AND TENANT.

matter of a contract is such that the damages for its breach may
readily be computed by the application of well established and
definite rules, the courts will usually treat the deposit as a pen-
alty especially if there shall be a great difference between the
amount of the deposit and the amount which the party who
has agreed to execute the lease will lose by the failure of the
prospective lessee to accept it. If one who has agreed to lease
premises from their owner refuses to do so when called upon it
is the duty of the owner to at once proceed to lease the property
and the measure of his damages is the loss which he incurs in
case he has to accept a lease at a lower rent from some other
person than the prospective lessee under the agreement has
agreed to pay him. He will not be prevented from recovering
this by reason of the fact that the lessee has deposited a merely
nominal sum as security that he will take the lease.

§ 372. The general rule as to liquidated damages. The par-
ties to a lease or to an agreement to make a lease may agree upon
and insert in the lease or agreement any sum as compensation
for a breach of the covenants of the lease or for a failure to
make the lease, and the courts will be bound by this agreement
for liquidated damages where the sum does not exceed the ac-
tual damages suffered. But on the other hand, where the sum
named is manifestly above the damages which have been suf-
fered, and the damages are such as can readily be proved at
law, such sum though it is expressly inserted in the contract and
is called liquidated damages by the parties to it, will be regarded
by the law as a penalty merely to insure prompt payment or
performance. If it shall appear from the evidence that all at-
tempts to get at the actual and certain amount of the damages
would be in vain, the courts will incline to accept the estimate
of damages which the parties themselves have agreed upon, but
if a strict construction of the clause fixing the damages would
work injustice or an absurdity, the use of the term liquidated
damages will not prevent an inquiry by the court into the actual
damages sustained.^- Upon the general principles of the law
of contract, the court will be guided in its inquiry whether the

12 Consolidated Coal Co. of St. 4G9, 5 Sandf. 192; Colwell v. Law-
Louis, 150 111. 344, 37 N. E. Rep. lence, 38 N. Y. 71; Little v. Banks,
937; Cotheal v. Talmage, 9 N. Y. 85 N. Y. 258; Chaude v. Shepard,
551; Bagley v. Peddie, 16 N. Y. 122 N. Y. 397, 401.

SECURITY FOR THE RENT.

589

sum named is liquidated damages by the language used by the
parties as evidence of their intention and aJso by the facts and
circumstances of the case. The use of the words penalty or
liquidated damages is not of course controlling, though it
may be considered. The ease and difficulty of ascertaining the
damages, the size and amount of the deposit as compared with
the loss which will be incurred, and the facility with which a
new lessee may be secured by the owner, must all be taken into
consideration.^^

§ 373. Chattel mortguge to secure the payment of the rent.
The tenant may, in order to secure the payment of the rent to
the landlord, execute a chattel mortgage to the latter, condi-

13 The importance of distin-
guishing between a forfeiture and
liquidated damages lies in the fol-
lowing particulars: If the amount
is a penalty, the damages only can
be collected, and although judg-
ment be given for the penalty, an
execution can issue only for the
amount assessed by the jury. On
the other hand, where the damages
are expressly liquidated by the
lease, it constitutes a debt which
may be recovered in an action at
law upon mere proof of the con-
tract and of the breach without
any actual proof of the real dam-
ages which have been sustained,
if the damages have been pleaded
as liquidated. Under such circum-
stances, if the jury shall find in
favor of the plaintiff, they must
render a verdict for the whole sum
stipulated as damages though it
may be too large in proportion.
They cannot find for the plaintiff
in the actual amount of damages
sustained. As to set off of a coun-
terclaim, if the amount is a mere
penalty, it cannot be set off. On
the other hand, liquidated dam-
ages may always be set off in an
action brought on a covenant in
the lease. Where the action is

brought for liquidated damages, it
may be stayed by a tender of the
exact amount with interest and
costs accompanied by a payment
into court. So where the action is
for unliquidated damages, the de-
fendant may pay into court a sum
of money which he claims to be
sufficient to meet the damages in-
curred by the plaintiff, and if the
plaintiff fails to recover a greater
sum, he cannot recover costs. In
an action to enforce a penalty
which is usually of an equitable
nature, the payment of the pen-
alty in court does not in the ab-
sence of an express statute, pre-
vent the enforcement of a forfeit-
ure. The defendant's remedy in
such cases is an equitable one. So,
also, though a court of equity will,
where the circumstances require
it, grant relief against a forfeiture
arising from an enforcement of a
penalty, it will not restrain an ac-
tion to recover liquidated dam-
ages. Nor will it restrain the ten-
ant from doing an act during the
term upon the land which he may
do at the risk of paying liquidated
damages. In conclusion, it should
be said, an increase in rent,
though not in the nature of liqui-

590 LAW OF LANDLORD AND TENANT.

tioned to be void if the rent is promptly and fully paid. The
general rules applicable to the subject of chattel mortgages are
applicable to the case. Thus, the assignee of the mortgage
stands in the place and stead of his assignor, the lessor, and
where the lessor is also the mortgagor of the premises, the as-
signee takes the chattel mortgage subject to the rights of the
mortgagee of the realty and to a foreclosure action then pend-
ing. Where, pending a foreclosure, a person talces a lease from
the mortgagor, securing the rent by a chattel mortgage which is
subsequently assigned, the assignee though no party, to the fore-
closure, takes subject to all the equities and infirmities produced
by the final decree in foreclosure. He is not bound by pro-
ceedings to appoint a receiver or to compel the tenant to pay
the rent to such receiver unless he shall have notice to which he
is entitled. The court will examine the equities of the several
claimants to the rents during the pendency of the foreclosure
proceedings. If the plaintiff in foreclosure has neglected to
include the rents in his security, he has no equitable claim as
against the chattel mortgagee (the owner of the equity) or his
assignee. All that the mortgagee is entitled to is the immediate
possession of the premises as security for his debt from the date
a receiver is appointed but he has no right to any possession as
to rents accruing before that time.^* The fact that a landlord,
holding a mortgage on his tenant's chattels as security for the
rent, takes possession of them on their abandonment by the
tenant does not work a satisfaction of the debt.^' He may sue
and recover the balance due in an action either of debt or cove-
nant. A mortgage given by the tenant on his future crops to
secure the rent during the term is valid. Any property which
may be sold may also be mortgaged. If the crops are to be
grown upon the land and the tenant is in actual possession of
it, the future crops are then an accretion and addition to the
land which may reasonably be expected to come into existence
during the term and hence they may be mortgaged. ^^ On the

dated damages, may be distrained Supp. 813. See, also, same case,

for, but a penalty can never be 10 N. Y. Supp. 1029, 16 Daly (N.

distrained for. Y.) 349, 19 N. Y. Supp. 494, 30 N.

I* Zeiter v. Bowman, 6 Barb. (N. Y. St. Rep. 432.

Y.) 133. 1" Jones V. Webster, 48 Ala. 109,

"Lathers v. Hunt, 13 N. Y. 112.

SECURITY FOR THE RENT. 591

other hand, if the tenant though he may mortgage his own crops
which will be the result of his own labor, shall attempt to secure
his rent by a mortgage on a crop raised by another, though upon
the same land, the mortgage will be unenforceable for the mort-
gagor has no title and may never have one. Lessees interested
as co-partners in the tilling of the premises and who are to
receive a share of the future crop are bound by a mortgage by
one^ of their number of the future crop as security for rent,
though it be not recorded.^"

§ 374. Construction of an agreement to give security. An
agreement that a tenant shall give sufficient security for rent
is satisfied by either personal security or security upon real es-
tate so long as it is adequate. The fact that real estate given
as security is incumbered is not alone conclusive that it is in-
sufficient. It may on the contrary, be abundantly adequate.
The tenant is not bound to execute and tendc a mortgage if
the landlord refuses to accept real estate offered as security.
The law does not require the performance of a useless ceremony.
Nor is the tenant bound to give the landlord under such cir-
cumstances "any more explicit information as to the nature and
value of the property. The tenant has the whole of the day
on which the lease is to commence to furnish the security and
though he may have refused or declined to furnish it in the
earlier part of the day, he may change his mind and do so sub-
sequently during the day.^*

§ 375. "When the principal and the surety on a lease may
be sued jointly. A person who in the character of a surety
joins in the execution of the lease and agrees to pay the rent in
ease the lessee does not is primarily liable and may, and indeed
must, be joined as a defendant in an action by the lessor for the
rent.^** Thus, where a lease is signed by A whose name is in
after the name of the latter there are the words "as security
for A," both may be joined -" in an action. The liability of the
principal and surety must be created by the same instrument in
order that they may be joined as defendants.-^ A person who

17 Jones V. "Webster, 48 Ala. ,109, Reeves, 48 Pa. St. 472; Carman v.

112. Plass, 23 N. Y. 286, 287.

isHard v. Brown, 18 Vt. S7, 97. 20 Decker v. Gaylord, 8 Hun (IT.

i9McLott V. Savery, 11 Iowa, Y.) 110.

323, 325; City of Philadelphia v. 21 Carman v. Pla.s.<?, 23 N. Y. 286.

592 LAW OF LANDLORD AND TENANT.

by an independent writing executed after the lease lias been
signed.^^ or by an indorsement upon the lease,'^ becomes a
surety for the lessee, is not within the rule and cannot be joined
with his principal in an action brought against the tenant to
recover the rent.

§ 376. General rule as to the liability of the guarantor. In
the case of a guarantee of the payment of rent under seal, a
consideration need not be expressed but will be presumed from
the fact of a seal being attached.^* The consideration for a
guarantee of rent need not proceed from the lessor to the guar-
antor. The acceptance of the lessee and his entry into posses-
sion by the permission of the lessor will ordinarily be a sufficient
consideration. So, an agreement by a lessee who occupies the
demised premises as a saloon that he will sell the beer manufac-
tured and sold by the guarantor is a sufficient consideration for
the contract of guaranty.-^ If there is no express requirement
in the guarantee that the lessor shall first obtain judgment
against the lessee as a condition precedent to the guarantor be-
ing called upon to pay, none can be implied. The failure of the
lessee to pay the rent when it accrues is a breach of covenant
and the lessor may at once proceed against the guarantor. It
is the duty of the guarantor to ascertain whether the lessee has
kept his covenants with the lessor and to know whether he has
paid rent and the lessor is not for this reason required to give

22 Tourtelott v. Junkin, 4 Blackf. its beer alone, and receives the
(Ind.) 483; Phalen v. Dinger, 4 E. benefit of the contract, it is es-
D. Smith (N. Y.) 379. topped, as against the lessor, from

23 Virden v. Ellsworth, 15 Ind. asserting that its contract was
144. Contra, as to a surety by in- ultra vires. A guarantor who
dorsement on the lease where the guarantees a saloonkeeper's lease
statute expressly provides that on an agreement of the latter to
persons "severally liable on the sell his beer, with a provision in
same instrument, including sure- the lease that it will not be as-
ties on the same instrument," may signed by the lessee without the
be sued together. Lucy v. Willcins, consent of the guarantor, or that
33 Minn. 21, 21 N. W. Rep. 849. the premises will not be used for

24 Roth V. Adams, 185 Mass. 341, anything but saloon purposes, has
70 N. E. Rep. 445. a beneficial interest in the lease

25 Standard Brewery v. Kelly, 66 and it cannot be surrendered wi th-
ill. App. 267, holding also that out his consent. St. Louis Brew-

, where a brewing company guar- ing Ass'n v. Kaltenbach, 108 Mo.
antees the lease of a saloonkeeper App. 637, 84 S. W. Rep. 151.
on consideration that he will soil

SECURITY FOR THE RENT, 593

notice to the guarantor of the default of the lessee in the pay-
ment of the rent as a condition precedent to bringing an action
against the guarantor.^^ A lessee who has assigned the lease
and has guaranteed the payment of the rent by the assignee is
not entitled to notice of the default of the latter.^^ If, however,
it is stipulated in the contract of guarantee that a demand for
the rent shall be first made upon the tenant a demand and a
refusal of the tenant to pay must be proved as a part of the
plaintiff's case.^^ If after the surety or guarantor has entered
into his contract, the terms of the lease are altered by an agree-
ment between the landlord and the tenant without the consent
of the surety or guarantor, the liability of the latter is then at
an end for the reason that the covenants of the lease are no
longer binding on the tenant, he having been released by the
making of a new cotnract.-^ The change or alteration of the
lease does not, however, defeat the liability of the surety or
guarantor as to rent or breaches of covenants in the lease which
have accrued before the damage was made. Nor is the surety
released from his liability to pay accrued rent by the fact that
the landlord accepts a surrender of the premises and expressly
releases the tenant from the payment of subsequent rent.^°

§ 377. Surety's liability upon a renewal of lease. The lia-
bility of one who has guaranteed the payment of rent on a lease
which provides for a renewal at the option of the lessee con-
tinues during the new term which the lessee elects to take if it
is merely an extension or continuance of the old term. Thus,
if the lease be for one year with an option to extend it for four
years and the lessee executes the option by remaining in posses-
sion and paying rent or by giving notice to the lessor where a
notice is required by the lease, the liability of the guarantor con-
tinues down to the end of the second or extended term. The
surety cannot thereafter relieve himself of liability on the new
term by notice to the lessor that he will not be liable. ^^ The

26 Roth V. Adams, 185 Mass. 2s Folsom v. Squire, 70 N. J.

341, 70 N. E. Rep. 445. See, also, Law, 430, 60 Atl. Rep. 1102.

Hayes v. Kyle. 8 Allen (Mass.) 29 People v. Vilas, 36 N. Y. 457;

300, 301; Welch v. Walsh, 177 Grant v. Smith. 46 N. Y. 93.

Mass. 555. 59 N. E. Rep. 440. so Kingsbury v. Westfall, 61 N.

27Giergen v. Schmidt, 69 111. Y. 361.

App. 53S. 31 Shand v. McCloskey, 27 Pa.

Super. Ct. Rep. 260,
38

594 LAW OF LANDLORD AND TENANT,

surety is bound to ascertain the rights and privile<?es of the
parties to the lease which he has guaranteed. The option in the
tenant to have an extension if he shall so elect being in the
original lease with which it will be presumed the surety is fam-
iliar, he will be bound not only during the original term but
also during any possible term for which the lease is extended.
If the lease upon which he is surety instead of providing for
an extension requires the execution of a new lease upon the re-
quest or demand of the tenant, the surety will not necessarily be
bound to see to the performance of the stipulations by the lessee
under the new lease unless he expressly agrees to do so. The
termination of the original lease and the execution of a new
one by the jjarties will be regarded in law as a surrender of the
former lease by which the liabilities of the parties under the old
lease are absolutely terminated.

§ 378. The discharge or release of the surety. Under gen-
eral principles of the law of contract, a surety for the payment
of the rent or the performance of other covenants by the tenant
will be discharged from all liability under circumstances where
the tenant is discharged. The payment by the tenant of the
rent discharges the surety, but where the payment is made in
the shape of a note by the tenant, it is no discharge of the surety
unless the note is paid at maturity where it is not expressly
agreed that the note is to be accepted in payment.^- Thus, even
the giving of a note by the tenant which is secured by a chattel
mortgage is not a payment. ^^ The surrender of the premises
by the lessee and their acceptance by the lessor will at once
terminate the liability of a person who has agreed to guarantee
the payment of the rent. So, also, the lessee is entitled on a
surrender or rescission of the lease to be repaid by the lessor
the amount of money deposited by him as security for the pay-
ment of rent or for the performance of the stipulations of the
lease, if he is not in default, or if he is in default such an

32 Kendig v. Kendig. ?, Pitts. landlord accepting a draft drawn

287; Woodbridge v. Richardson, 2 on a third person, and it was held

T. C. (N. Y.) 418. that this was not a pajTiient un-

83 In a case where the defend- less it was mutually understood to

ant was sued on his guarantee to be a payment by all the parties to

pay the rent, it was claimed that the lease. Bernham v. Hubbard, 36

the tenant was released by the Conn. 539.

SECURITY FOR THE RENT. 595

amount of the deposit as he may be entitled after deducting the
rent then due and in arrears.^* Where a lessee sublet and va-
cated the premises leaving- a deposit in the hands of the lessor,
the lessee is entitled to the return of his deposit upon the lessor
subsequently accepting a surrender from the subtenant.^^ In
the action against one who has guaranteed the payment of the
rent, it is a good defense to show that the tenant has assigned
his lease with the consent of the landlord and without the con-
sent of the guarantor. For it is a general rule of the law of
guarantee that if the person who is guaranteed releases the
principal debtor, the guarantor is also released. Hence, if the
landlord consents to the assignment of the lease and accepts the
assignee as his tenant and it is clear that the landlord intended
thereby to release the tenant from his liability to pay rent, and
this was done without the knowledge of the guarantor, it is a
good defense in an action by the landlord against the guarantor;
and a judgment for the rent taken by the landlord against the
tenant after the latter had assigned his lease does not preclude
the guarantor in an action brought against him from showing
all the facts relating to the assignment of the lease by the ten-
ant.^*' The surety is not released if the tenant abandons the
premises without a sufficient legal cause even though the lessor
by his own motion or at the request of the surety, rents them to
some other person.^^ Where the lease provides that the landlord
may re-let the premises if they become vacant and apply the
proceeds of the re-letting to the former tenant's indebtedness,
and a surety, on learning that the tenant cannot pay the rent,
informs the landlord that he must re-let the premises and he
does so, and the original tenant removed and the new tenant
agrees to pay rent, it was held that this not being a surrender,
the former tenant and his surety were still liable. ^^ So, the
mere fact that a landlord finds a stranger in possession of the
premises before the term has expired and receives the rent from
him, does not release the surety, particularly where the lessor

34 Kahn v. Tobias, 16 Misc. Rep. 3^ McKensie v. Farrel, 4 Bosw.
83, 37 N. Y. Supp. 632. (N. Y.) 192.

35 Carson v. Arvantes, 10 Colo. -"s Ogden v. Rowe, 3 E. D. Smith.
App. 382, 50 Pac. Rep. 1080. (N. Y.) 312.

36 Fleck V. Fieldman, 104 N. Y.
Supp. 366.

596 LAW OF LANDLORD AND TENANT.

had not been notified that the lessee had assigned or sublet, the
premises.^^ If there is evidence of a surrender either express
or in contemplation of law, the surety is released from rent sub-
sequently accruing, but not for rent which had accrued prior
to the surrender. Thus where a landlord accepted the posses-
sion of the premises from the sub-tenant, receiving from him
goods which he agreed to sell and to accept the proceeds in re-
lease and discharge of the rent which might be due him from
the original lessee up to the surrender, the surety would be
discharged, and tlie original lessee may at once recover a deposit
made by him as security for the rent as his liability for future
rent is at an end.*° The eviction of the tenant by the landlord
or by a paramount title inasmuch as it puts an end to the rights
and liabilities of the parties to the lease, releases the surety of
the tenant from all liability which would accrue after the date
of the eviction. It must appear, however, that there was an ac-
tual ouster of the tenant for anything short of this, though con-
sisting of a trespass or an interference with the convenience and
-enjoyment of the premises by the tenant, will not release the
surety. So, a surety cannot set up in an action brought against
him by the landlord the fact that the buildings were destroyed
by fire, where the landlord has covenanted to rebuild them.*'^
But it is likely where the matter is regulated by the modern stat-
utes which provide that a destruction of the premises shall put
an end to the lease, that where the premises are totally destroyed
by fire or other casualty, so that the liability for rent on the
part of the tenant is at an end, the surety would also be re-
leased. Anything which releases a surety from his liability
for a tenant will also entitle the tenant to the repayment of
money deposited by him as security for rent. So, a surety is
discharged where during the term, the lessor sells a portion of
the premises with the consent of the lessee,^^ and where the
tenant is evicted from the premises during the term because they
are sold, the lessor must refund money which has been deposited

39 Wood V. Welz, 40 App. Div. firming 10 Colo. App. 382, 50 Pac.
202, 57 N. Y. Supp. 1121, affirmed Rep. 1080.

in 1C7 N. y. 570, 60 N. E. Rep. »i Kingsbury v. Westfall, 61 N.

1122. Y. 359.

40 Carson v. Arvantes, 10 Colo. 42 stern v. Sawyer, 78 Vt. 5, 61
App. 382, 59 Pac. Rep. 737, af- All. Rep. 36.

SECURITY FOR THE RENT.

597

by the tenant for the faithful performance of the covenants of
his lease.*' The surety is bound only during the term actually
named in the lease. If the tenant holds over, the surety is not
bound for the rent beyond the first year, though the lease is
for one year, ' ' with the privilege of the lessee to retain the house
as long as he may wish." ** The contrary is the rule where the
lease is for one year certain, "and for another year if the ten-
ant holds over." The surety continues liable after the onvj
year term and during all the second year in case the tenant de-
sires to hold over.*^ The liability of one who guarantees the pay-
jnent of rent by a tenant under a lease with a privilege of a
renewal is co-extensive with the longest possible term which
may be created by a renewal.*"

43 Degnario v. Sire, 34 Misc.
Rep. 163, 68 N. Y. Supp. 789. The
issuance of a warrant in a sum-
mary proceeding to secure posses-
sion when it terminates the lia-
bilities of the parties to one an-
other under the lease releases the
guarantor and enables the tenant
to obtain the return of his de-
posit. A deposit as security for
the payment of rent does not be-
come the property of the lessor
after he h..s ousted the lessee in
summary proceedings. Yannuzzi
V. Grape, 92 N. Y. Supp. 819. The
parties may, however, by their ex-
press words used in the lease pro-
vide that a deposit may be for-
feited as liquidated damages if the
lessee is ousted by legal proceed-
ings and if such be the case and
the lessee is ousted in summary
proceedings for the non-payment
of rent which does not equal the
deposit, the lessee cannot recover
the balance. Longobardi v. Yul-
iano, 33 Misc. Rep. 472, 67 N. Y.
Supp. 902. So where the. lessor
has an option under the lease to

dispossess the lessee or to resort
to a deposit for reimbursement
with a right to re-enter on de-
fault in the payment of rent, the
issuance of a warrant in sum-
mary proceedings before the end
of the term does not entitle the
tenant to recover the deposit. An-
zolone V. Paskusz, 96 App. Div.
188, 89 N. Y. Supp. 203.

4* Brewer v. Thorp, 35 Ala. 9.

45 Coe v. Hodges, 71 Pa. St. 383.

46Heffron v. Treber (S. D.
1907), 110 N. W. Rep. 781. Also
holding that in a case where a
tenant had the privilege of a re-
newal for two years his holding
over without any new agreement
would be presumed to be an elec-
tion on his part to renew the
lease for two years and not a
mere holding over with the con-
sent of the landlord by which
otherwise he would under a state
statute be a tenant for one year
only. The guarantor of the pay-
ment of the rent continued liable
for the renewal term of two
years.

CHAPTER XVII.

THE COVENANTS OF THE LEASE.

379. Definitions and general conditions.

380. The language by which a covenant is created.

381. The construction of covenants in leases.

382. What are the usual and proper covenants

383. Whether covenants are joint or several.

384. Dependent and independent covenants.
38-5. The enforcements of negative covenants.

386. The liability of the parties to a covenant and of their assignee-.

387. Covenants running with the land.

888. The liability of the personal representatives of the covenantor.

389. Covenants and conditions distinguished.

390. Whether conditions are subsequent or precedent.

391. The construction of a provision for a forfeiture.

392. The enforcement of a forfeiture after a tenant has oecome a

vendee.

393. The necessity for the notice of a forfeiture.

394. The effect of a forfeiture upon the lease.

395. The effect in general of failure to pay rent.

396. The necessity for a demand by the lessor in order to work a for-

feiture.

397. Waiver of the demand for the rent.

398. The entry of the landlord for the purpose of reletting.

399. Demand for payment of the rent; when and how made by the

landlord.

400. Who may exercise the right to re-enter.

401. The lessee cannot take advantage of a forfeiture.

402. The waiver of a forfeiture by the lessor.

403. The rent received after a forfeiture.

404. The payment of the rent to a landlord after an action of eject-

ment or other action by a landlord for the possession.

405. Waiver may be implied from other facts than the acceptance

of the rent.

406. When the payment of subsequent rent does not waive a for-

feiture.

407. Waiver by silence and delay.

408. The waiver of a continuous breach of a condition.

409. A forfeiture caused by a breach of a covenant to repair.

410. The effect of a tender of rent.

411. Relief against forfeiture at common law.

412. Equitable relief against forfeiture.

COVENANTS OF THE LEASE. 590

§ 379. Definitions and general considerations. Before con-
sidering in detail tlie chara-ter of the particular covenants
which are either expressed or implied in a lease, it may be
proper to consider some, at least, of the rules regulating cove-
nants in general. A covenant may be defined as an agreement
between two or more persons in writing and under seal by
which either party stipulates that certain facts are true, or
promises to perform or give something to the other party or to
abstain from the doing of some certain act.^ Such an agreement
when expressed, may be couched in any sort of language which
shows the intention of the parties to it for the law prescribes no
special form of words necessary to constitute a covenant.^
Thus it is not necessary that a stipulation which is alleged to
be a covenant shall contain that word or any other particular
word, if it is possible to gather the intent of the parties that it
shall bind them from the language which they have used in
any part of the writing.^ Covenants are divided into those
which are express and those which are implied, but this division
has relation to the formal expression of the intent by the par-
ties rather than to the intent itself.* An express covenant is
one which is expressly stated to be such in the language which
the parties themselves have used. An implied covenant is one
which is created by construction from the implication contained
in the use of particular words, which in themselves do not con-
stitute an express covenant. Thus, as examples of implied
covenants contained in the lease, we may instance the implied
covenant on the part of the lessor that the lessee shall be se-
cured in the quiet possession of the premises and the implied

1 Bouv. Law Diet. Taylor v. Preston, 79 Pa. St. 436;

2 Wright V. Tuttle, 4 Day Mitchell v. Hazen, 4 Conn. 495,
(Conn.) 313; Kendal v. Talbot, 2 508, 10 Am. Dec. 169; Randel v.
Bibb (Ky.) 614; Yocum v. Barnes, Chesapeake & D. Canal Co., 1 Har.
8 B. Mon. (Ky.) 496, 497; Hoi- (Del.) 233; Levering v. Lovering,
linsworth v. Johnson, 48 Mich. 13 N. H. 513; Midgett v. Brooks,
140, 11 N. W. Rep. 843; Vincent 12 Ired. L. (N. C.) 145, 55 Am.'
V. Crane, 10 Det. Leg. N. 653, 97 Dec. 405.

N. W. Rep. 34, 35 ; Fletcher v. 3 Newcomb v. Presbrey, 9 Met.

Chamberlin, 61 N. H. 438; Hallett (Mass.) 406, 410.

V. Wylie, 3 Johns. (N. Y.) 44, 48, 4 As to the definition of a cove-

3 Am. Dec. 457; Bull v. Follett, 5 nant in a lease, see Brooks v.

Cow. (N. Y.) 170, 171; Campbell Drysdale, 3 C. P. D. 52, 37 L. T.

V. Schrum, 3 Watts (Pa.) 60; 467, 26 W. R. 331.

600 LAW OF LANDLORD AND TENANT.

covenant to pay rent on the part of the lessee, both of which are
conclusively presumed to be contained in eveiy lease and in
theory to arise from the relation of landlord and tenant created
by the lease, though there be not one word in the lease expressive
of an intention on the part of the landlord to guarantee posses-
sentative if the latter is named in the covenant but which do
the landlord. Another division of covenants is into those which
are personal and those which are real. Personal covenants are
those which bind only the covenantor and his personal repre-
sentative if the latter are named in the covenant but which do
not pass with the transfer of the special matter to which they
relate. Such covenants, it may be said in passing, are broken
if at all, as soon as they are made and an action may be main-
tained by the covenantee to recover damages at once. A real
covenant is one that in ordinary language is said to run with
the land. In other words, it is one so related to the land that
the owner of the land or of an interest in the land is by the fact
of ownership entitled to the benefit of the covenant, though he
has not been named in it. He may, therefore, bring an action
to enforce the covenant as soon as it is broken, though he was
not a party to the deed or writing in which it was contained.
Covenants are also divided into those which are independent and
those ^vhich are dependent. "Where the duty to perform one's
covenant depends upon performance by the other party of an-
other covenant, the covenants are dependent and the party who
would take advantage of the breach of the other to perform his
covenant, must himself perform what he is bound to do before
he can maintain his action. Thus, where two acts are to be
done by the parties respectively at the same time, neither can
maintain an action against the other without showing either
that he has performed his own covenant or that he has offered
the other to perform his covenant and has been prevented by
the latter from doing so.'^ Independent covenants are those by
which the parties are bound to do different things at different
times. The doing of one of these things by eitlicr is not a con-
dition precedent to his right to recover damages for a failure

ePordage v. Cole. 1 Saund. 320; R. Co., 12 Oieg. 488, 491, 8 Pac.

Manuel v. Campbell, 3 Ark. 324; Rep. 544; Cassell v. Cooke, 8 S.

Harrison v. Taylor, 3 A. K. Marsh. & R. (Pa.) 268, 11 Am. Dec. 610.
(Ky.) 1G8; Powell v. D. S. & G. R.

COVENANTS OF THE LEASE.

601

on the part of the other party to keep his covenant.' Covenants
are independent or dependent according to the fair intention
of the parties as it manifests itself upon the language employed
by them."

6 Houston V. Spniance, 4 Harr.
(Del.) 117; Morrison v. Galloway,
2 Har. & J. (Md.J 461; Benson v.
Hobbs, 4 Har. & J. (Md.) 285;
Davis V. Wiley, 4 111. 234; Good-
win V. Holbrook, 4 Wend. (N. Y.)
377; McCullough v. Cox, 6 Barb.
(N. Y.) 386, 390; Obermyer v.
Nichols, 6 Binn. (Pa.) 159, 6 Am.
Dec. 439; McCrelish v. Church-
nan, 4 Rawle (Pa.) 26; Lowber v.
Bangs, 2 Wall. (U. S.) 728, 17 L.
ed. 768.

" A covenant to pay rent and a
covenant by the lessor to make
alterations and repairs during the
tei-m are independent. Thompson-
Houston Electric Co. v. Durant
Land Imp. Co., 144 N. Y. 34, 39 N.
E. Rep. 7. The lessee's covenant
to pay taxes and the lessor's cove-
nant to permit the lessee to re-
move improvements are independ-
ent. The covenant to allow the
lessee to remove his improve-
ments may be enforced in equity,
though the lessee has not paid
the taxes. Strohmeyer v. Zeppen-
feld, 28 Mo. App. 268. In McCul-
lough V. Cox, 6 Barb. (N. Y.) 386,
on page 390, the court said: "The
first question to be considered is,
whether the covenants on the
part of the plaintiff, which are
contained in these instruments,
are conditions precedent. This
must depend upon the intention
of the parties, as it is to be col-
lected from the instrument in
which the covenants are con-
tained. Porter v. Shepard, 6
T. R. 668; Glazebrook v. Wood-
row, 8 T. R. 366, 371; Retchie v.

Atkinson, 10 East, 29.S; Havelock
V. Geddes, 10 East, 559. There
is also another rule of construc-
tion which has been adopted for
the purpose of ascertaining
whether covenants are conditions
precedent or not, and that is, that
where mutual covenants go to the
whole consideration on both sides,
they are mutual conditions, the
one precedent to the other, but
where the covenarits go only to a
part of the consideration, then a
remedy lies on the covenants, to
recover damages for a breach of
it, but it is not a condition pre-
cedent." So in Davis v. Wiley, 4
111. 234, the court said: "When
covenants are independent, per-
formance need not be averred, but
otherwise when they are depend-
ent. It is then essential that the
plaintiff should aver performance,
or an offer to perform his part of
the covenant. In the classification
of covenants, some of the old cases
proceeded upon distinctions ex-
tremely nice and technical, but
the governing rule to be deduced
from modern authorities, is that
covenants are to be construed to
be dependent or independent, ac-
cording to the intention of the
parties, and the good sense of the
case, and that technical words
should give way to such inten-
tion. Luna V. Gage, 37 111. 27.
According then to this rule the
covenants of the parties in this
case must be understood as mu-
tual and dependent. Although the
time for the payment of the money
is fixed by the articles of agree-

602 LAW OF LANDLORD AND TENANT.

§ 380. The language by which a covenant is created. Cov-
enants may be created by very informal language. Any words
in a deed or contract under seal which show an agreement
on the part of either party to do or not to do a certain thing
amount to a covenant. For the law requires no particular
form of the words in order to constitute a covenant in a
lease. If it clearly appears from the language of a lease under
seal that either one of the parties has agreed to do or to ab-
stain from doing a particular thing, it will be a covenant. The
words "covenant" and "agree" are proper and are usually
employed in leases but they be may be dispensed with and their
use does not of necessity create a covenant if it appears that
the minds of the parties did not meet upon the act which was
to be performed by either of them.^ Thus, for illustration, a
provision that "the lessee shall repair the buildings demised as
often as necessary and shall leave them repaired at the end of
the term" is a covenant by the lessee to repair and leave in
repair." So, there need not be an express promise on the part
of the covenantor. The mere statement that he has agreed or
For it is very well settled that a mere recital in a lease or a state-
ment in a lease that it has been agreed that the landlord shall
furnish lumber with which the tenant is to repair is a cove-
nant on the part of the landlord to furnish the lumber.''^
For it is very well stated that a mere reital in a lease or a state-
ment that something has been agreed upon or an exception con-
tained in a covenant by one party to the lease may amount to a
covenant.^^ If either party to the lease shall covenant to do a
certain thing and in the covenant shall insert an excep-
tion the exception may amount to a covenant not to do the

ment, yet it is evident from tlae » Bret v. Cumberland, Cro. Jac.

general tenor of the instrument, 399.

as well as from some of its stipu- lo Holder v. Taylor, Brownl. 23,

lations, that the time of payment ii Sampson v. Easterby, 9 B. &

■was fixed in anticipation of the C. 505; Say v. Mattram, 19 Com.

prior performance of the labor." Bench (N. S.) 479; Farrall v. Hil-

« St. Albans v. Ellis, 16 East, ditch, 5 Com. Bench (N. S.) 840;

352, 354; Mollis v. Carr, 2 Mod. St. Albans v. Ellis, 16 East, 352;

87; Comyn's Digest, tit. "Cove- Horry v. Frost, 10 Rich. (S. C.)

cant;" Lunt v. Norris, 1 Burr. Eq. 109; Penn v. Preston, 2 Rawle

290; Hill v. Carr, 1 Ch. Cas. 294; (Pa.) 14; Lowell v. Hilton. 11

Bret V. Cumberland, Cro. Jac. 399. Gray (Mass.) 407; Huff v. Nick-

erson, 27 Me. 106.

COVENANTS OF THE LEASE. 603

thing excepted. Thus, a covenant by a tenant of a farm to plow
and sow all the land excepting- a certain tract constituted an im-
plied covenant on the part of the tenant not to plow and sow the
tract excepted.^- The doctrine of implied covenants from re-
citals or statements in the lease has been greatly extended. Thus,
a recital by the landlord that he is possessed of a certain inter-
est in the demised premises implies a covenant on his part that
he is possessed of such an interest. ^^ And where the tenant
agrees to repair premises "the same having been previously put
in good repair" it was held that the language quoted constituted
and implied an absolute covenant on the part of the landlord
to repair which he must perform before the tenant would have
to repair.^* So where a tenant expressly covenanted that he
would fold his flock of sheep which he should keep upon the
premises upon such parts thereof as the same had been usually
folded a covenant on his part was implied to keep a flock of
sheep upon the premises.^^ So, a covenant by the tenant that
he will from time to time supply the landlord with certain arti-
cles to be manufactured on the premises raises an implied cove-
nant on the part of the tenant to manufacture such articles
on the premises. The tenant cannot refuse to furnish the arti-
cles or escape his liability for a failure to do so by showing that
no such articles were manufactured on the premises.^®

12 St. Albans v. Ellis, 16 East, argument in the latter case; and
352. upon consideration, they do not

13 Severn's Case, 1 Leon. 122; appear to us to support the propo-
Aspdin V. Austin, 5 Q. B. S7l, 683. sition for which the plaintiff con-

14 Connock v. Jones, 3 Exch. tends to the extent to which it is
233. necessary for him to carry it. It

15 Webb V. Plummer, 2 B. & Aid. will be found in those cases that
746, 749, 751. where words of recital or refer-

16 Earl of Shrewsbury v. Gould, ence manifested a cleaa* inten-
2 B. & Aid. 487. The rule that tion that the parties should do
covenants may be impliea from certain acts, the courts have from
recitals has been limited. Thus these inferred a covenant to do
commenting on the cases of Samp- such acts, and sustained actions
son V. Easterly, 9 B. & C. 505, af- of covenant for the non-perform-
firmed 6 Bing. 644, and Saltorm ance, as if the instruments had
V. Houston, 1 Bing 433, the court contained express covenants to per-
in Aspdin v. Austin, 5 Q. B. 671, form them. But it is a manifest
on page 683, said: "We have ex- extension of that principle to
amined these and several earlier hold, where parties have ex-
cases which were cited in the pressly covenanted to perform cer-

604

LAW OF LANDLORD AND TENANT.

§ 381. The construction of covenants in leases. It is a uni-
form rule that all covenants in leases must be construed as
nearly as possible according to the intention of the parties to be
gathered from the whole context of the lease and according to
the reasonable sense of the words to be used by them.^^ The at-
tempt of the court should be to support the lease rather than to
make it void for uncertainty. The lease ought to be so construed
that every word in it will be effective if possible and for this
purpose all the words of the lease should be read by the court in
order to ascertain the general intention. The terms of the cove-
nant ought to be understood in their plain, ordinary and popu-
lar sense, unless they possess in respect to the subject matter of
the lease a peculiar and particular sense which differs from the
popular sense.^^ Technical words, however, are to be construed
as they are understood by persons conversant with the particu-
lar subject to which they relate, unless from the context it is
very clear that the parties to the lease used such words in a
different and popular sense. ^° In construing a covenant in a

tain acts, they must be held to
have impliedly covenanted for
every act convenient or even nec-
essary for the perfect performance
of the express contract. Where
parties have entered into written
engagements with express stipula-
tions, it is manifestly not desir-
able to extend them by any impli-
cations, the presumption is, that
having expressed some, they have
expressed all the conditions by
which they intend to be bound
under the instrument."

17 Vaughn v. Matlock, 23 Ark.
9; Watchman v. Crook, 5 Gill. &
J. 239, 255; Quackenboss v. Lan-
sing, 6 Johns. (N. Y.) 49, 50; Mar-
vin v. Stone, 2 Cow. (N. Y.) 781;
Dunn V. Dunn, 3 Colo. 510; Davis
V. Lyman, 6 Conn. 249; Howard
Mfg. Co. V. Water-Lot Co., 39 Ga.
574; Wadlington v. Hill, 18 Miss.
560; Whalen v. Kauffman, 19
Johns. (N. Y.) 97; Clark v. De-
voe, 124 N. Y. 120; 2G N. E. Rep.

275; Shoenberger's Ex'rs v. Hay,
40 Pa. St. 132; Halloway v. Lacy,
23 Tenn. 468; James v. Adams, 64
Tex. 193.

18 Rogers V. Dansworth, 9 N. J.
Eq. 289; Morrison v. Galloway
(Md.), 2 Har. & J. (Md.) 461;
Benson v. Hobbs (Md.), 4 Har. &
J. 285; Goodwin v. Holbrooke, 4
AVend. (N. Y.) 377; Obermyer v.
Nichols, 6 Binn. (Pa.) 159, 161,
6 Am. Dec. 439; Lowber v. Bangs,
69 U. S. 728, 17 L. ed. 768; Hous-
ton V. Spruance (Del.), 4 Har.
117; McCullough v. Cox (N. Y.),
6 Barb. 386; Lord Ellenborough
in Robertson v. French, 4 East,
i:^.0, on page 137; Mallan v. May,
13 Mee. & Wei. 511; Scott v. Bour-
dillion, 5 Bos. & Pul. 213.

19 Davis V. Willey, 4 111. 234;
Lunn V. Gage, 37 111. 19, 87 Am.
Dec. 233; McCrelish v. Church-
man, 4 Rawle (Pa.) 26; T..ee v.
Mosley, 1 You. & C. 607; Sander-
son V. Dobson, 1 Exch. 145.

COVENANTS OF THE LEASE. 605

lease by indenture the ^vords of the covenant are to be regarded
as the words of the party to whom, they properly belong or if
the words properly belong to both, as the words of both parties.
In the absence of an express limitation to one party the cove-
nant in the lease by indenture will be obligatory on both parties
or on either according to the circumstances and the language of
the covenant will be construed as the language of both, or either
though it is expressly stated to be the covenant of one only.
Doubtful words in the covenant will be applied to him to whom
they most properly belong according to the whole intention of
the parties. They are not taken more strongly p^ainst one or
more beneficially to the other as in the case of covenants in a
deed-poll.-" A general covenant for quiet enjoyment in a lease
is not affected by a subsequent covenant of the landlord to de-
fend the lessee 's title, unless the covenants are inconsistent, or it
expressly appears that it was intended that the second covenant
should limit the first. -^ In the case of a lease for a long term
of business property in a rapidly growing section in which
there are old buildings at the date of the lease with a provision
that the lessee shall erect a substantial business building thereon,
it may be clearly inferred that the principal intent of the lessor
was to procure the prompt erection of such a building. This
appears under the circumstances of the parties and from the
manifest improvement and advantage to the owner which would
result from the placing of the building on his property. Hence,
a stipulation that there shall be a forfeiture upon a default in
the payment of rent or in the performance of any of the cove-
nants or agreements on the part of the lessee to be performed, is
not confined in its operation to a default in the payment of rent,
but includes any default in the performance of the covenant to
build as this was clearly the intent of the parties. Upon the fail-
ure of the lessee to perform this covenant to build, the lease is
forfeited. ^^ In construing the implied covenants of warranty
and of quiet enjoyment in a lease for a term of years they have
been held to expire with the term. If a lessor's estate shaU ex-
pire during the term and the lessee is thereupon evicted by a

20 Beckwith v. Howard. 6 R. T. 22 Lindeke v. Associates Realty
J, 9; Shepard's Touchstone, 52. Co. (C. C. A.), 146 Fed. Rep 630.

21 Sheets v. Jozner, 11 Ind. App
209, 38 N. E. Rep. 830.

(306

LAW OF LANDLORD x\ND TENANT.

title paramount, no action can be maintained by the lessee or his
assignee against the lessor for the breach of the implied cove-
nant of qniet enjoyment or of title as such covenants terminate
vnih the expiration of the lessor's estate.-^ Hence if a tenant
for life makes a lease for years and dies before its expiration and
the remaindermen evict the lessee of the life tenant no action on
the implied covenant will lie against the lessor's representative.-*
§ 382. What are the usual and proper covenants. In con-
struinsr an agreement to execute a lease which shall contain the

23Baynes v. Lloyd (1895), 2 Q.
B. 610, 14 Reports, 678.

24 McClowry v. Croghan's Adm'r,
31 Pa. St. 22, 24; Gervis v. Peade,
Cro. Eliz. 615; Swan v. Strans-
cham, 3 Dyer, 267a; Adams v. Gib-
ney. 4 M. & P. 491, 6 Bing. 656. In
Adams v. Gibney, 6 Bing. 656,
where a person took a lease from
a life tenant without any express
covenant of quiet enjoyment it
•was held that the lessee from the
life tenant could not upon his
eviction by the remainderman on
the death of the life tenant main-
tain covenant against the execu-
tor of the life tenant. In this
case the court said that the exec-
utors were not charged with a
covenant in law because a cove-
nant in law or as we would say
an implied covenant ends and de-
termines with the estate and in-
terest of the lessor. For a cove-
nant in law should not extend to
make one do more than he can
which was to warrant possession
as long as he lived and no longer.
"A covenant is simply a contract
of a special nature, and the pri-
mary rule for the interpretation
thereof is to gather the intention
of the parties from their words
by reading not simply a single
clause in the instrument, but the
entire context and where the
meaning is doubtful, by consider-

ing such surrounding circum-
stances as they are presumed to
have considered when their minds
met." Clark v. Devoe, 124 N. Y.
120, 124. We may say in limine,
that whatever may have been the
principles contained in the more
ancient decisions upon the legal
effect and operation of contracts
of a similar description, the strong
leaning of the courts in more
modern times has been to disin-
cumber themselves from the fet-
ters of technical rules and to give
such a rational interpretation to
the contract as will carry the in-
tention of the parties into full
and complete operation. In 8th
Term Reports, 371, Grose, Justice,
says: "The question is whether
these covenants be dependent or
independent and that must be col-
lected from the apparent intention
of the parties to the contract.
There is certainly some confusion
in the books on this subject, some
of the older cases leaning to con-
strue covenants of this sort to be
independent, contrary to the real
sense of the parties and the true
justice of the case. But the later
authorities convey more just sen-
timents and the case of Kingston
V. Preston was the first strong
authority in which they prevailed
in operation to the former." Watch-
man V. Crook. 5 G. &.J. (Md.) 255.

covt:nants of the lease.

607

*' usual and proper covenants" it often becomes indispensable to
ascertain the meaning of these words. What in a particular case
shall be regarded as a usual and proper covenant depends al-
ways upon the circumstances including- the character of the
premises leased and the use to which it is to be put by the
lessee. A covenant on the part of the lessee to pay rent and
a covenant on the part of the lessor to deliver and defend the
lessee's possession of the premises would undoubtedly be usual
covenants inasmuch as they are implied in every lease. A cove-
nant by the lessee not to assign is not a usual covenant within the
meaning of an agreement to execute a lease containing the usual
covenants.-' In England it has also been determined that a
covenant by the lessee to pay all taxes is a usual and common
covenant,-*' though the contrarj^ would be the rule in the United
States. But covenants restricting the tenant's use of the prem-
ises which are in restraint of trade are not at least in a locality
where trade is carried on, usual or common covenants which a
lessee is bound to have inserted in his lease.-' Nor is a landlord
entitled, as a matter of law, to have a proviso for a re-entry

25 Hampshire v. Wickens, 47 L.
J. Ch. 243, 7 Cli. Div. 555, 38 L. T.
408, 26 W. R. 491; Buckland v.
Papillon, L. R. 1 Eq. 477, 12 Jur.
(N. S.) 155, 36 L. J. Ch. 81, L. R.
2 Ch. 67, 12 Jur. (N. S.) 992, 15
L. T. 378, 15 W. R. 92; Vere v.
Lovenden, 12 Ves. 179, 10 R. R.
77; Jones v. Jones, 10 R. R. 186;
Browne v. Raban, 15 Ves. 528;
Ex parte Lucas, 3 Deac. & C. 144,
1 Mont. & Ayr. 93; Blacker v.
Mathers, 6 Bro. P. C. 334; Hen-
derson V. Hay, 3 Bro. C. C. 632;
Lander v. Bagley's Contract, 61
L. J. Ch. 707; (1892) 3 Ch. 41, 67
L. T. 521. Contra, Morgan v.
Slaughter, 1 Esp. 8, 5 R. R. 715.

26 Bennett v. Womack, 7 B. &
C. 627, 1 M. & Ry. 644, 3 Car. &
P. 96, 6 L. J. (O. S.) K. B. 175, 31
R. R. 270.

2T Wilbraham v. Livesy, 18
Beav. 206, 2 W. R. 281; Propert
V. Parker, 3 iMylne & K. 280; Van

V. Corpe, 3 Myl. & K. 269, 276, 6
L. J. Ch. 208, 1 Jur. 101, 149; Hay-
ward V. Parke, 16 C. B. 295, 24 L.
J. C. P. 217, 1 Jur. (N. S.) 781;
Doe d. Bute (Marquis) v. Guest,
15 Mee. & W. 160. If an agree-
ment for a lease contain no stipu-
lation as to covenants the party
agreeing to take the lease, has a
right to a lease, containing only
usual covenants, and a restric-
tion against particular trades, not
being a usual covenant cannot be
introduced in the lease. Propert
V. Parker, 3 My. & K. 280. In Van
V. Corpe, 3 My. & K. 269, 276, the
master of the rolls said: "I con-
sider it to be perfectly clear that
the common and usual covenants
between landlord and tenant will
not extend to covenants in re-
straint of trade and I consider
that a provision against carrying
on a school should not be ex-
tended."

608 LAW OF LANDLORD AND TENANT.

upon a breach of any of the conditions or covenants by the
leasee, inserted in the lease as a common and usual provision, ex-
cept that a proviso for re-entry on nonpayment is usual and
so may be insisted on by the landlord where a lease is to contain
the usual covenants.-^ A power of re-entry in a lease, if the
lessee or his assigns become bankrupt, or make a composition
with creditors, or if execution should issue against either of
them, is unusual, and an intended assignee is not bound to ac-
cept a lease containing such a covenant ~° Avhere he has agreed
to take an assignment of a lease containing only the usual cove-
nants.^"

§ 383. Whether covenants are joint or several. The an-
swer to the question whether covenants are to be considered as
joint or several depends wholly upon the intention of the parties
to be ascertained upon a construction of the express- language of
the covenant in connection with all the lease. Where it is appar-
ent from all the lease that the interest of the parties to the cove-
nant is joint the covenant will be treated as a joint covenant.^^
On the other hand if the enterest of the parties to the covenant
is severable it does not follow that the covenant will be construed
as a several covenant but it may be construed as joint or several

2s Hodgkinson v. Crowe, 44 L. arrived, just as a mortgagor can

.T. Ch. 680, L. R. 10 Ch. 622, 33 redeem his estate, thougli the time

L. T. 388, 23 W. R. 885; In re fixed by the mortgage deed for re-

Anderton & Milner, 59 L. J. Ch. demption has passed; so that the

765, 45 Ch. Div. 476, 63 L. T. 332, proviso only operates as a pen-

39 W. R. 44. As to power of entry alty. A clause of re-entry for

on bankruptcy of the lessee. breach of covenants generally,

Haines v. Burnett, 27 Beav. 500, where, as there are no means of

29 L. J. Ch. 289, 5 Jur. (N. S.) ascertaining the compensation a

1279, 1 L. T. 18, 8 W. R. 130. court of equity cannot relieve,

2» Hyde v. Warden, 47 L. J. Ex. stands on a different footing."

121, 3 Ex. D. 72, 37 L. T. 567, 26 Hodgkinson v. Crowe, 33 L. T. (N.

W. R. 201. S.) 288, L. R. 10 Ch. App. 622,

30 "A clause for re-entry for quoted and approved in Anderton

non-payment of rent is always in- and Milner's Contract, 63 L. T.

serted without any opposition (N. S.) 334.

from anybody. It has never been si Bradburne v. Botfield, 14 Mee.

disputed by any tenant because & Wei. 559, 572; Hopkinson v.

both at law and in equity the Lee, 6 Q. B. 964; Foley v. Adden-

lessee can be relieved from the brooke, 4 Q. B. 197, 207; Pugh v.

forfeiture by payment of the rent Stringfield, 3 Com. Bench, (N.

after the pciicd of forfeiture has S.) Q.

COVENANTS OF THE LEASE. 609

accoicling to circumstances and the manifest interest of the par-
ties. The tendency of the courts is to regard all covenants and
contracts as several rather than as joint covenants or contracts.
Unless it is very clear that the parties to the covenant in a lease
meant that their liability under the covenant should be joint the
court will be inclined to regard it as a several covenant. Xever-
the less, if the covenant is expressly joint it will be so construed
though it is apparent that the interests of the parties are sev-
eral.^2 The general rules of partnership liability apply to leases
executed by a firm either as lessees or lessors. Thus, where a
lease is executed by a finn composed of several members its cove-
nants are both joint and several, and each member of the firm
is liable individually thereon as well as jointly.^^ And in the
case of an alleged breach of the covenant in a lease by joint
obligors the act of either of them may be proved to show a breach
of the covenant although the parties whose acts are proved
have neither been sensed with the summons nor appeared in
action.^* AVhere the covenants and conditions in a lease are
entire in their nature, embracing the whole premises which is
included in the lease and by its term the covenants are expressly
applicable to the premises as to one undivided parcel of land the
mere severance of the land among two or more lessees as co-
tenants and the receipt from each of such co-tenants for their
convenience of the proportion of rent due from each will bring
about no change in the scope and effect of covenants or condi-
tions entered into by them. There is no severance in the case
of entire covenants binding upon a lessee unless the title to the
reversion or the right to receive the rents has been severed so as
to be vested in several persons. If therefore a lessee assigns his
term as to a portion of the premises it will be his duty to see to
it that his assignee fulfills all conditions and covenants involving
a forfeiture for if either assignor or assignee is guilty of any
act which is a breach of condition the whole term is gone.^'

32 James v. Emery, 2 Moore, ss Dunn v. Jeffery, 36 Kan. 408,

195; Sorsbie v. Park, 12 Mee. & 411, 13 Pac. Rep. 7S1.

Wei. 146; Wilkinson v. Hull, 1 S4 Edesheimer v. Quackenbush,

Bing. New Cases, 713; Harcourt 68 Hun, 427, 23 N. Y. Supp. 75.

V. WjTuan, 3 Exch. 817; Foley v. sn Clarke v. Cummings, 5 Barb.

Addenbrooke, 4 Q. B. 197; City of (N. Y.) 339, 356; Jackson v.

Philadelphia v. Reeves, 48 Pa. St. Brousen, 7 Johns. (N. Y.) 227.

472. The result of the cases appears to

39

610 LAW OP LANDLORD AND TENANT.

§ 384. Dependent and independent covenants. The inten-
tion of the parties always determines whether covenants in a
lease which are mutually made by the lessor and the lessee are
dependent or independent. This must be determined by a
reasonable construction of the lease. The courts usually lean to
a construction which will make covenants in a lease independent
rather than dependent, especially where some benefit has been
received by the covenantor. A covenant which goes only to a
part of the consideration on both sides, and a breach of which
may be compensated by damages is usually accepted by the
courts as an independent covenant. Where covenants are in-
dependent each party may sue on the covenant of the other
without reference to whether he has or has not performed his
own covenant. If covenants are dependent the performance by
each party of his own covenant is a condition precedent to his
right to recover on or to enforce the covenant of the other party.
A covenant on the part of the lessor to repair or to make im-
provements is usually independent of the lessee's covenant to
pay rent. So the covenant of the lessee to pay rent and of the
lessor to board the lessee are likewise independent. But the
covenant of the lessee to pay rent and of the lessor to give pos-
session are dependent though, if a lessee enters into possession
of a part of the premises, he will be considered to have waived
the full performance of the covenant to give possession, and the
lessor will be entitled to rent pro rata}^ In determining whether

be this, that where the legal in- to C. and covenanted with them
terest and cause of action of the and each of them that he had good
covenantees are several, they title each might maintain an ac-
should sue separately, though the tion for his particular damage by
covenant be joint in terms; but a breach of that covenant. On
the several interest and the sev- the other hand, it appears from
eral ground of action must dis- several cases, that if the cause of
tinctly appear, as in the case of action be joint the action should
covenants to pay separate rents to be joint, though the interest be
tenants in common upon demises several." Foley v. Addenbrooke, 4
by them; as in the case from Q. B. 197, 208. See, also, Coryton
Slingsby's Case, 5 Rep. 18b, to the v. Litherbye, 2 Saund. 115; Mar-
case of Eccleston y. Clipsham, 2 tin v. Crompe, 1 Ld. Ray. 340.
Saund. 115, where a man by in- m Lincoln Trust Co. v. Nathan,
denture demised Blackacre to 175 Mo. 32, 47, 74 S. W. Rep 1007.
A. Whiteacre to B. and Greenacre

COVENANTS OF THE LEASE. 611

covenants are independent or dependent, certain rules have been
laid down to enable the courts to reach the intention and mean-
ing- of the parties, when the instrument in its terms is vague
and obscure. Thus: (1.) If a day be appointed for the pay-
ment of money or a part of it, or for doing any other act, and
the day is to happen or many happen, before the thing which is
the consideration of the payment of the money or other act, is
to be performed, an actio(n may be brought for the money, or
for not doing such other act before performance; for it appears
that the party relied upon his remedy and did not intend to
make the performance a condition precedent and so it is where
no time is fixed for the performance of that which is the con-
sideration of the money or other act. (2.) When a covenant
goes only to part of the consideration on both sides, and a breach
of such covenant may be compensated or paid for in damages,
it is an independent covenant, and an action may be maintained
for a breach of the covenant on the part of the defendant, with-
out averring performance in the complaint or declaration.^^

§ 385. The enforcements of negative covenants. Under a
lease which provides that a lessor may re-enter if the lessee fails
to perform or to observe any covenant which is to be performed
by him the right to re-enter arises upon the breach of a negative
covenant a^ well as upon the breach of an affirmative covenant.
The act of the lessee in doing what he has covenanted not to do
is a failure to perform his covenant ; and he may be as much in
default by doing something he has covenanted not to do as by
failure to do something he has agreed to do. Thus a proviso for
a forfeiture and a re-entry expressly declared upon the breach
of any covenant to be performed is not restricted to breaches of
affirmative covenants as for example the covenant to pay rent
and taxes and the covenant to keep the premises in repair but is
extended to negative covenants; as for example covenants re-
stricting the purpose for which the premises may be used by the
lessees and covenants prohibiting an assignment or underletting
by the lessee without the consent of the lessor.^* This rule or
principle of construction has been often applied by the courts

37 Bryan v. Fisher, 3 Blackf. J. K. B. &39 (1904), 1 K. B. 698,
(Ind.) 316, 319. 90 Law T. 624, 52 Wkly. Rep. 615,

38 Harman v. Ainslie, 73 Law 20 Times Law R. 359.

612 LAW OF LANDLORD AND TENANT.

to covenants by the lessee not to assign or to sublet without the
consent of the lessor,^'' to a covenant by the lessee not to use or
occupy the demised premises for any unlawful purpose/" and
to a covenant by the lessee not to charge or incumber the prem-
ises by mortgaging the same.*^ AVhere either a lessor or a lessee
covenants that he will not during the term do some particular
thing a negative covenant is created which will be enforcible in
equity by the covenantee according to the ordinary rules of equit-
able relief by an injunction. Thus it must appear that the cove-
nantee will suffer irreparable injury by the breach of the nega-
tive covenant for which he is without a plain and adequate rem-
edy at law. If by an action at law he can recover pecuniary
damages for the breach of the covenant which will fully com-
pensate him for the injury which he has received, equity will not
interfere by an injunction to compel the performance of a
negative covenant. And equity will not hy injunction prevent
the breach of a negative covenant unless the meaning of the
covenant is explicit and the intention of the parties is clearly
expressed in it.^- On the other hand if the covenantee has no
adequate remedy at law and the breach of the negative covenant
will work him a substantial injury an injunction will issue to
prevent the expected breach of the negative covenant by the
covenantor.*^

S9 West Shore R. Co. v. Wenner. Co. v. Western Union Telegraph

79 N. J. L. 233, 57 AtL Rep. 408, Co., 155 111. 335, 349, affirming 51

affirmed in 60 Atl. Rep. 408. 111. App. 62.

40 Wheeler v. Earle, 5 Cush. « Jn Croft v. Lumley, 6 H. L. C.
(Mass.) 31, 51 Am. Dec. 41. 672, the covenant was that the

41 Croft V. Lumley, 6 H. L. lessee would not charge or incum-
Ca.ses, 672. See contra Doe v. ber the premises by mortgage or
Stevens, 3 B. & Ad. 299. A pro- granting any rent charges or by
vision for a re-entry "In case the any other incumbrances whatever
lessees shall fail in the observ- with a right of re-entry if the
ance or performance of any or lessee should make default of or
either of the covenants and agree- in the performance of any cove-
ments on his or their parts," etc., nant which on his part are or
applies only to a breach of an ought to be performed, observed
affirmative and not a negative cov- and kept. Nine judges being sum-
enant. West v. Dobb, 10 B. & S. moned to present their opinions to
987, 39 L. J. Q. B. 190, L. R. 5 Q. the house, one of the questions
B. 460, 23 L. T. 76, 18 W. R. 1167. propounded to them was whether

42 Thruston v. Minke, 32 Md. a breach of the covenant above
487, 497; Postal Telegraph Cable mentioned gave the lessor a right

COVENANTS OP THE LEASE. 613

§ 386. The liability of the parties to a covenant and of their
assignee. A distinction is. made between the liability of a
lessee on his personal covenant and the liability of his assignee
on the same .covenant. The lessee who has personally cove-
nanted in his lease to do a certain thing for his lessor is bound
to the lessor by privity of contract, as well as by privity of es-
tate. He continues to be bound by privity of contract until the
lease is terminated, surrendered or cancelled but he is only
bound by privity of estate until he assigns the lease. The assign-
ment destroys the privity of estate though he is still bound on
his covenant and he may be sued by the lessor on his covenant
at any time notwithstanding the assignment. But the assignee
of a lease stands only in privity of estate to the lessor while
he is in possession. Strictly speaking, the assignee cannot be
sued by the lessor upon any covenant of the lease because there
is no privity of contract between him and his lessor, but by one
of these numerous fictions of law which have been invented in
the course of centuries of judicial legislation to enable justice to
be done between man and man an assignee while in possession
is said to be liable oai certain covenants which are stated "to run
with the land." As a matter of fact he is not liable on the cove-
nant at all. Any liability the assignee of the lessee may have,
is only incumbent upon him because of the equitable principle
that he who enjoys the benefits of an existing condition of affaii*s
cannot shift its duties. After the assignment the assignee has
the sole right of possession under the lease, and having this
right, he must accept the accompanying duty or duties. The
right of possession and the enjoyment of possession impose
upon him the obligation to return their equivalent. Hence, he
must do for the landlord everything that his assignor had
agreed to do as an equivalent of the enjoyment of the premises.

to re-enter, and unanimously they Bramwell said: "Default in pei>

answered in the affirmative. Mr. formance of covenants to be per-

Baron Watson said: "It is a formed, observed and kept ap-

proper rule of construction that plied to covenants not to do some

the subject and intent of the cove- thing as well as to covenants to

nant must be looked at as well do something." Mr. Baron Martin

as the words used," and "the pro- said: "The abiding by a covenant

viso for re-entry would apply to is the performance of it; the noa-

and embrace negative as well as abiding is a nou-performance."
positive covenants." Mr. Baron

€14 LAW OF LANDLORD AND TENANT.

This class of covenants which are by a fiction said to run with
the land comprise all those which involve the doing of some-
thing to or about the land itself. They are very numerous and
include almost every conceivable covenant which can be in-
serted in a lease. It is not necessary where by its nature a
covenant runs with the land that it shall contain the word "as-
sig-nee " or " assigns. ' ' In the next section the topic of covenants
which ran with the land will be considered in detail.

§ 387. Covenants running with the land. Covenants are
classified into real covenants and personal covenants. Real cove-
nants are those which are annexed to the estate and which are
incidents of its ownership and enjoymeait irrespective of the fact
tliat the original parties to the covenant are no longer in pos-
session thereof. Such covenants are usually to be performed
upon the land and are therefore said to run with the land. A
personal covenant is one which in the absence of express lan-
guage making it obligatory upon the assignees or grantees of the
parties binds only those persons who are parties to it. In deter-
mining whether a covenant ' does or does not run with the land,
it is important to ascertain whether the subject matter of the
covenant was or was not in existence when the covenant was
made. In some cases the fact of the non-existence of the subject
matter may be controlling. Thus if the subject matter to be
build a wall or a house on the land on a future day during the
term it will be a personal covenant in the absence of an express
agreement that the covenant shall run with the land.** This in-
tent may most appropriately be shown by making the covenant
binding upon the "assigns" of the parties in so many words or
in any language which has an equivalent meaning. For the law
does not require any particular form of words to constitute a
covenant which shall run with the land.*^ Inasmuch therefore as

41 Thompson V. Rose, 8 Cow. (N. Hansen v. Meyer, 81 111. 321. If
Y.) 263. the covenant by reason of its char-
ts Trill V. Eastman, 3 Met. acter runs with the land the word
(Mass.) 121, 124; Savage v. Ma- "assigns" is not required in it.
son, 3 Cush. (Mass.) .500, 505; Heidon v. Wright, 6 Ohio Dec.
Masury v. Southworth, 9 Ohio St. 31 5, 4 Ohio N. P. Rep. 235; Heidon
340, 352; Williams v. Burrell, 1 v. Wright, 60 Ohio St. 609, af-
Com. Bench, 402, 430; Great Nat. firming Wright v. Heidon, 6 Ohio
Ry. Co. V. Harrison, 12 Com. Dec. 151, 4 Ohio N. P. Rep. 124,
Bench, 576, 609; Bream v. Dick- In Spencer's Case, 5 Coke, 16b,
enson, 2 Humph. (Tenn.) 12C; which is a leading case upon cove-

COX'ENANTS OF THE LEASE.

615

the subject matter and general purpose of the covenant rather
than its form and language detennine -whether or not the cove-
nant does or does not run with the land we may instance certain
covenants which have been held to run with the land. Covenants
to pay rent,*° to repair,*^ to renew by the lessor/^' a covenant by

nants which run with the land,
it was said: "Where the cove-
nant extends to a thing in esse,
parcel of the demise, the thing to
be done by the force of the cove-
nant is quo dammodo annexed
and appurtenant to the thing de-
mised, and shall go with the land,
and shall bind the assignee, l.-
though he be not bound by ex-
press words; but where the cove-
nant extends to a thing which is
not in being at the time of the
demise made, it cannot be appur-
tenant or annexed to the thing
which hath no being; as if the
lessee covenants to repair the
houses demised to him during the
term, that is parcel of the con-
tract, and extends to the support
of the thing demised, and there-
fore is quo dammodo annexed, or
appurtenant to the house, and
shall bind the assignee, although
he be not bound expressly by the
covenant; but in the case at bar,
the covenant concerns a thing
which was not in esse at the time
of the demise made, but to be
newly built after, and therefore
shall bind the covenantor, his ex-
ecutors or administrators, and not
the assignee, for the law will not
annex a covenant to a thing which
has ho being." * * * "If the
lessee had covenanted for him and
his assigns, that they would make
a new wall upon some part of the
land demised, that forasmuch as
it is to be done upon the land de-
mised that it should bind the as-
signee; for although the covenant
doth extend to a thing to be newly

made, yet it is to be made upon
the thing demised, and the as-
signee is to take the benefit of it,
and therefore it shall bind the
assignee by expres words. * * *
But although the covenant be for
him and his assigns yet if the
thing to be done be merely col-
lateral to the land, and doth not
touch or concern the thing de-
mised in any sort, there the as-
signee shall not be charged."

46 Salisbury v. Shirley, 66 Cal.
223, 5 Pac. Rep. 104, 106; Webster
V. Nichols, 104 111. 160; Saxton v.
Storage Co., 129 111. 318, 21 N. E.
Rep. 920; Carley v. Lewis, 24
Ind. 23; Trask v. Graham, 47
Minn. 571, 50 N. W. Rep. 917;
Smith V. Harrison, 42 Ohio St.
180; Bradford Oil Co. v. Blair, 113 '
Pa. St. 83, 4 Atl. Rep. 218, 57 Am.
Rep. 442; Fennell v. Guffey, 139
Pa. St. 341, 20 Atl. Rep. 1048;
Shaw v. Partridge, 17 Vt. 626.

*' Hayes v. New York Gold Min-
ing Co., 2 Colo. 273; Harris v. Gos-
lin, 3 Harr. (Del.) 338; Norman
V. Wells, 17 Wend. (N. Y.) 136;
Meyers v. Burns, 33 Barb. (N. Y.)
401; Lehmaier v. Jones, 91 N.. Y.
Supp. 687; Demarest v. Willard,
8 Cow. (N. Y.) 206; Allen v. Cul-
ver, 3 Denio (N. Y.) 284; Shelby
V. Heme, 6 Yerg. (Tenn.) 513,
514; Pollard v. Shaafer, 1 Dall.
(Pa.) 210, 1 Am. Rep. 239, 1 Law.
ed. 104; Spencer's Case, 5 Coke,
17b.

48 Callan v. McDaniel, 72 Ala.
96; Sutherland v. Goodnow, 108
111. 528, 48 Am. Dec. 560; Eich-
horn V. Peterson, 16 111. App. 601;

616

LAW OP LANDLORD AND TENANT.

the lessee to surrender with all improvements,*" and in tenant-
able condition/" by the lessee to pay taxes,^^ or to pay all charges
cind expenses except taxes,^^ covenants by the lessee restricting
him to a particular use of the premivses.^^ by a lessor not to lease
a portion of the premises for a purpose which will compete
with the business of the lessee,"* by a lessor to pay for im-
provements made by the lessee,^^ by a lessee not to sell any
goods on the premises except those purchased of the lessor,'"
by a lessee to vacate on thirty days notice,^" by the lessee cov-
enant to build houses on the land,^^ run with the land, A
stipulation by which the lessor, a corporation, reserved the
right to terminate the lease at any time it might sell the

Massy v. Mead, 2 La. 157; McOlin-
tock V. Joyner, 77 Miss. 678, 27
So. Rep. 837; Blackmore v. Board-
man, 28 Mo. 4'20; Wilkinson v.
Pettit, 47 Barb. (N. Y.) 230; Pig-
got V. Mason, 1 Paige Ch. (N. Y.)
412, 414; Downing v. Jones, 11
Daly (N. Y.) 245; Barclay v.
Steamboat Co., 6 Phila. 558; Roe
V. Hayley, 12 East, 469; Brooke v.
Buckley, 2 Ves. Jr. 498.

49 Coburn v. Goodall, 72 Cal. 498,
14 Pac. Rep. 190, 1 Am. St. Rep.
75; Allen v. Culver, 3 Denio (N.
Y.) 284.

50 Shelby v. Hearn, 6 Yerg.
(Tenn.) 512; Strode v. Seaton, 2
C. M. & R. 730; Demarest v. Wil-
lard, 8 Cow. (N. Y.) 206; Myers
V. Burns, 33 Barb. (N. Y.) 401;
Harris v. Goslin, 3 Harr. (Del.)
340; Payne v. Haine, 16 M. & W.
541.

51 Salisbury v. Shirley, 66 Cal.
223, 5 Pac. Rep. 104, 106; Ellis v.
Bardbury, 75 Cal. 234; Worthing-
ton V. Cook, 52 Ind. 394; Trask
V. Graham, 47 Minn. 571, 50 N. W.
Rep. 917; Post v. Kearney, 2 N. Y.
394; Borgman v. Spellmire, 4
Ohio N. P. 416, 7 Ohio Dec. 344,
347; Sutliff v. Atwood. ir, Ohio St.
186; West Virginia, etc., Co. v.

Mclntire, 44 W. Va. 210, 28 S. E.
Rep. 696.

.--,2 Torrey v. Wallace, 3 Cush.
(Mass.) 442.

53 Wheeler v. Earle, 5 Cush.
(Mass.) 31, 51 Am. Dec. 41; De
Forest v. Byrne, 1 Hilton (N. Y.)
43; Trustees v. Cowen, 4 Paige
(N. Y.) 510; Spencer v. Stevens,
18 Misc. Rep. 112, 41 N. Y. Supp.
39; Wright v. Heidorn, 6 Ohio
Dec. 151, 4 Ohio N. P. (N. S.) 124;
Granite Building Corp. v. Greene,
25 R. I. 586, 57 AtL Rep. 649;
Cockson v. Cock, Cro. Jac. 125.

54 Postal Telegraph Cable Co. v.
Western Union Telegraph Co., 155
III. 335, 40 N. E. Rep. &87; Nor-
man V. Wells, 17 Wend. (N. Y.)
136.

55 Coatsworth v. Schoellkopf, 75
N. Y. Supp. 753; Hollywood v.
First Parish in Brockton, 192
Mass. 269, 78 N. E. Rep. 124; Fred-
erick V. Callahan, 40 Iowa, 311;
Stockett V. Howard, 34 Md. 121.

56 White V. Southard Hotel Co.
(1897), 1 Ch. 767.

5T Hadley v. Burners, 97 Mo.
App. 314, 71 S. W. Rep. 451.

58 Garnhart v. Finney, 40 Mo.
449.

CO\TEXANTS OF THE LEASE. 617

property by giving- sixty days notice of the sale constitutes
a covenant running- with the land and authorizes its grantee
to so terminate the lease though the word assigns shall
not be in the stipulation.^^ So, also a covenant by the lessor to
supply water,''" or a covenant by the lessee and his executors
and assigns not to assign without the written consent of the
lessor," or by the lessee to- yield up in good repair,®- or a cove-
nant by a lessee to reside on the premises,*'' or to use the house
as a dwelling house only,^* runs with the land. Covenants in
a lease to raise a dam to a certain height, and keep it and a farm
in good repair, and to supply a certain quantity of water to the
tenant, run with the land.''^ A covenant on the part of the lessor
to sell and convey the property to the lessee runs with the land."''
AVhere a covenant runs with the reversion any person who takes
the reversion must take it with the burden of the covenant. The
■covenant is as it were a charge upon the reversion so that where
rhe laud is specifically devised by the lessor the devisee is liable
for the performance of a covenant which runs with the land.
But where the covenant does not run with the land as for ex-
ample, where it is a personal agreement on the part of the land-
lord to do something as a preparation to the occupancy of the
land by the tenant the performance of such a covenant is not
binding on the devisee but must be attended to by the executor.
If the covenant was an incident ta the relation of the landlord
cind tenant so that it might be said to run with the land, the dev-
isee must perform it; but if the covenant is a mere personal
covenant of the lessor it is more properly performed by his exec-
utor and the damages if any are recovered against the executor
should first be paid out of the testator's personal property." A

59 McClung V. McPherson, 47 (N. S.) 5, 9 L,. T. 434, 12 W. R.

Oreg. 731, 81 Pac. Rep. 567. 119.

eojourdain v. Wilson, 4 B. & en Noonan v. Orton, 27 Wis. 300;

Aid. 266, 23 R. R. 268. Noonan v. Orton, 4 Wis. 335; Noo-

61 Williams v. Earle, 9 B. & S. nan v. Orton, 21 Wis. 283; Noonan
740, 37 L. J. Q. B. 231, L. R. 3 Q. v. Orton, 31 Wis. 265; Orton v.
B. 739, 19 L. T. 238, 16 W. R. 1041. Noonan, 27 Wis. 272.

62 Martyn v. Clue, 18 Q. B. 661, eo Maughtin v. Perry, 85 Md.
22 L. J. Q. B. 147. 352.

63 Tatem v. Chaplin, 2 H. Bl. 6- Eccles v. Mills, 67 L. J. P. C.
133, 3 R. R. 360. 25; (1898) A. C. 360, 78 L. T. 206.

64 Wilkinson v. Rogers, 10 Jur. 46 W. R. 398. "The covenant

618

LAW OP LANDLORD AND TENANT.

covenant for quiet enjoj^ment by the lessee runs with the land
and may be enforced by an assignee of an assignor of the lessee
who has covenanted for quiet enjoyment with the first assignee. ®®

must run with tlie land — must be
so connected with, be attached to,
and inhere in the land, that the
assignee of the reversion or the
assignee of the lease, as the case
niay be, would have a right to the
advantage of it, or be bound to
perform it. Such is the general
principle; but whether a covenant,
so runs with the land, must de-
pend, in the first place, upon the
nature and character of the par-
ticular covenant and of the estate
demised, so connected with the
respective rights of lessor and
lessee in reference to the subject
matter of the covenant; and, in
the next place, upon the intent of
the parties in the creation of the
estate, as shown by the language
of the instrument creating it, con-
strued with reference to the rela-
tive position of the parties and to
the subject-matter to which their
contract and conveyance is to be
applied. The nature and charac-
ter of the covenant may be such
tliat it may run with the land;
and yet, if it be clearly the agree-
ment of the parties that it shall
not so run, it would not be an-
nexed, in despite of the agreement
so expressed. And, on the con-
trary, however, clearly and
strongly expresed may be the in-
tent and agreement of the par-
ties, that the covenant shall run
with the land, yet if it be of such
a character that the law does not
permit it to be attached it cannot
be attached by the agreement of
the parties and the assignee would
take the estate clear of any such
covenant." By the court in Mas-

ury V. Southworth, 9 Ohio St. 340,
348. "As the law discourages per-
petuities, it does not favor cove-
nants for continued renewals;
but, when they are clearly made,
their binding obligation is recog-
nized and will be enforced. The
covenant for renewal is only an
incident to the lease, and as it
cannot be passed without the prin-
cipal, the conveyance of the prin-
cipal by a proper description will
necessarily carry the incident.
They are inseparable and a right
of action cannot exist in favor of
a person claiming the benefit of
the covenant without any right to
the possession of the leasehold;
but the covenant being annexed
to the estate runs with it, and
cannot be retained by itself or as-
signed or severed so as to give
an independent cause of action.
A sale of the lease under execu-
tion will pass to the purchaser all
the covenants that run with it as
effectually as if he had received
a conveyance from the lessee; for,
as the purchaser, after he ac-
quires possession, is bound to pay
the rent, and in that way assumes
the burdens of the lease, he has
the right to take advantage of the
covenants that touch and con-
cern the thing demised, which en-
hance the value of the estate." By
the court, Richardson, J., in Black-
more V. Boardman, 28 Mo. 420, on
page 426.

C8 Lewis V. Campbell, 8 Taunt.
715, 3 Moore, 35, R. R. 516, fol-
lowing Noke V, Awder, Cro. Eliz.
:^73, 436.

CO\T<:XANTS OF THE LEASE. 619

§ 388. The liability of the personal representatives of the
covenantor. Where the covenant is not expressly made obliga-
tory on the personal representatives of the parties to a lease it
M'ill be presumed that they are bound. The presumption always
is that a person in contracting means to bind his personal repre-
sentatives in case of his death prior to performance, unless the
contract actually calls for the doing of something which involves
some pei-sonal quality or characteristic which the covenantor
alone possesses as would be the case where the deceased party
had agreed to write a book or to paint a picture. It is obvious
that the covenants usually contained in a lease are not usually
embraced within the exception. This presumption may be ex-
cluded by the language of the contract even in ordinary cases
where an adequate performance may be made by the representa-
tive. Thus if one purchase land or contract to erect a house on
land of another person and shall die before the contract is per-
formed his executor or administrator may be compelled to buy
the land or furnish the house."^ Hence from this it follows that
a covenant by the lessor to rebuild in case the premises which
were demised shall be destroyed by fire or other unavoidable
casualty is binding on his executor or administrator although
personal representatives are not mentioned in it/° and though
the testator and lessor had devised the premises to other persons
in his will. If the devisee shall refuse to permit the buildings to
be rebuilt the estate is liable in damages for it is the act of the
testator in devising the premises which prevents the executor
from performing the covenant to rebuild. And the covenant to
rebuild is still enforeible against the executor though the land
descends to the heir and if the heir refuses to fulfill the covenant
on which he is liable inasmuch as it runs with the land, the exec-
utor is still liable as such but never personally and must pay
damages for breach of the covenant only to the extent that he
has assets of the estate.

§ 389. Covenants and conditions distingfuished. In the con-
struction and interpretation of written leases the inclination of
the courts is generally to construe an ambiguous stipulation
whose character is doubtful as a covenant rather than as a condi-

C9 Tilney v. Norris, 1 Ld. Raym. to Chamberlin v. Dunlop, 12G N.

553; Quick v. Ludborrow, 3 Y. 4, 26 N. E. Rep. 966, affirming
Bulst. 3. 8 N. Y. Supp. 125.

620 LAW OF LANDLORD AND TENANT.

tion. A clause in a lease will not be reg-arded as a condition if it
can le^timately be construed as a covenant. If the intention of
the parties to create a condition is not evidenced by apt words the
court may treat the stipulation as a covenant. '^^ But the inten-
tion of the parties whatever it may be when it is ascertained will
always control and where the intention is clear the stipulation or
provision though in form it shall be a covenant, must be taken
to be a conditioiii if that was apparently the intention of the
parties. Thus generally if there is a power of entry reserved to
the lessor for the breach of any particular covenant or upon
the breach of any and all covenants of the lease the clause
though in form it is a covenant will be regarded as a condition
and enforced accordingly.'- So where there is no provision for a
forfeiture, or for a termination of the lease and re-entry upon
the non-payment of rent the payment of rent is a condition the
breach of which will operate as a forfeiture.'^^ The landlord
may under such circumstances either enforce a forfeiture or
permit the tenant to remain in possession and recover the rent
due in an action on the covenant to pay rent. For a stipulation
in a lease may be a covenant in express terms as well as a con-
dition and available to the landlord as both. If one make a lease
for years by an indenture, provided always it is covenanted
and agreed between the parties that the lessee shall not alien, this
is both a covenant and a condition.^* So a demise provided always
that the tenant pays rent or does not assign which the tenant also
expressly covenants and agrees to do is both a condition and a
covenant."^ The importance of the distinction between a cove^

71 Vanatta v. Brewer, 32 N. J. fied, create a lease upon condition

Eq. 268, 270; Gould v. Bugbee, 6 on breach of which lessor may

Gray (Mass.) 371, 375. enter. Jackson v. Allen, 3 Cow.

72Kew V. Trainor, 50 111. App. (N. Y.) 220.
629, affirmed in 150 111. 150, 37 N. ^s Harrington v. Wise, Cro. Eliz.

E. Rep. 22; Wheeler v. Dascomb, 486; Doe d. Henniker v. Watt, 8

3 Gush. (Mass.) 285, 289; Vanatta E. & C. 308, 315, 1 M. & Ry. 694,

V. Brewer, 32 N. J. Eq. 268, 270. 6 L. J. (O. S.) K. B. 185. "A con-

""i Beal V. Bass, 86 Me. 325, 2» dition subsequent is a contin-

Atl. Rep. 1088. But compare Gran- gency named on the happening

dall V. Sorg, 99 111. App. 22. of which a grant may be defeated,

74 Verplanck v. Wright, 23 such as the failure to pay money.

Wend. (N. Y.) 506, 509. "These erect buildings, or do any other

presents are upon condition" that required act, a failure to do which

the lessee shall do an act speci- authorizes the grantor's re-entry.

COVEXANTS OF THE LEASE.

621

na.nt and a condition lies in the rnle that a breach of a covenant
in a lease in tlie absence of a stipulation that a breach shall have
such an effect does not work a forfeiture or determine the term.
For where a term is created by a lease in express words it cannot
be shortened or defeated except by words as strong and express
as those by which it has been created."*' So the fact that a lease
provides for a forfeiture on the breach of certain covenants by

A conditional limitation, an ex-
ample of which is a grant to one
so long as he occupies the prem-
ises, or to a widow during widow-
hood differs from it only in form,
and the fact that re-entry is not
necessary to terminate the grant.
The law regards conditions with
the same disfavor it does forfeit-
ure; and for similar reasons. A
clause will not therefore be
treated as a condition if it can be
construed as a covenant without
violence to its terms. If the pur-
pose to create a condition is in
unequivocal language as the courts
have frequently said in 'apt
terms,' such as "upon condition,'
'provide nevertheless,' 'so long
as,' 'during,' etc., the clause will
be treated as a covenant simply.
The provision under consideration
does not contain such language.
The terms, 'this lease shall not
be sold, assigned, or transferred,
without the written consent of the
party of the first part,' conveyed
no suggestion even that the lease
may be lost by such transfer.
They express simply an agree-
ment by the lessee, who alone
could make the transfer, that he
will not do it. If the lessor was
not satisfied with the remedy
which the law affords for breaches
of such agreements he should
have stipulated for another by
adding terms of condition or for-
feiture. That he knew very well

how to do this, and had it in
mind, as respects breaches of
other provisions of the lease, is
shown by the 'following clause:
'A failure to pay the money after
demand made, or put down the
well as hereinafter stipulated,
shall forfeit this lease within one
year from the date hereof.' The
inference is strong, therefore, that
he did not contemplate similar
consequences as the result of a
transfer." Hague v. Ahrens, 53
Fed. Rep. 58, page 60.

■-6 Vanatta v. Brewer, 32 N. J.
E!q. 269, 270; Phillips v. Tucker,

3 Ind. 132, 135; Texas & P. Coal
Co. V. Lawson, 10 Tex. Civ. App.
491, 31 S. W. Rep. 843; Gould v.
Bugbee, 6 Gray (Mass.) 371, 375;
Beal V. Bass, 86 Me. 325, 29 Atl.
Rep. 1088; Wilson v. Philips, 2
Bing. 13; Rudd v. Golding, 6
Mov. 231; Darke v. Bowditch, 8
Q, B. 973, 978; Raines v. Keller,

4 C. & P. 3. The words in an
agreement for a lease: "The said
tenant hereby agrees that he will
not underlet the said premises
without the consent in writing of
the landlord," do not create a con-
dition. But a provision that it is
"stipulated and conditioned" that
the tenant shall not assign, cre-
ates a condition for the breach of
which a lessor may re-enter. Doe
d. Henniker v. Wall, 8 B. & C. 308,
1 M. & R. 694.

622

LAW OF LANDLORD AND TENANT.

the lessee but omits to provide for a forfeiture upon the breach
of other agreement raises a veiy strong presumption that the
agreements for which no forfeiture is provided are covenants
and not conditions. Thus where the lease contains a covenant
not to assign and an express provision for forfeiture upon the
breach of certain other covenants contained in the lease is al-
most conclusive that the provision forbidding an assignment
without the consent of the lessor was a covenant and not a condi-
tion and there will therefore exist no right of re-entry in the
lessor upon the lessee's breach of this agreement not to assign.'^'^
A stipulation that a tenant shall surrender the premises when-
ever some certain event therein described shall happen or a cer-
tain contingency shall arise, is not a condition which upon re-
entry terminates the lease unless a forfeiture is in terms pro-
vided. It is a covenant whose breach does not terminate the
lease but only gives to the lessor an action for damages against
the lessee for the breach of the covenant. '^^ The landlord can-

77 Doe V. Gordon, 4 M. & S. 265;
Crawley v. Price, L. R. 10 Q. B.
302; Shaw v. Coffin, 14 C. B. (N.
S.) 372; Den v. Post, 25 N. J.
Law, 285; Spear v. Fuller, 8 N.
H. 174; Wlieeler v. Dascomb, 3
Cusli. (Mass.) 295; Harris v. Oil
Co., 57 Ohio St. 118, 48 N. B. Rep.
502. "In my judgment, in order
to work a forfeiture of property,
the acts which are to effect the
forfeiture or affect the property
should be expressed in language
so clear, express and intelligible,
as to leave no room or reason for
doubt in the. mind of the judge
who is called upon to decide the
question, that the act in question
does, according to a fair and rea-
sonable construction of the lan-
guage used and the understanding
and intelligence of the parties to
the contract, amount to a forfeit-
ure. Indeed, as has been justly
observed by the learned counsel
for the defendant, it would be
highly inconvenient and unjust

that persons who may have in-
vested, it may be, their whole for-
tune, in taking and setting up a
public house, should by reason of
the uncertainty or ambiguity of
the language of the lease be kept
in perpetual dread of the risk of
a forfeiture which might be their
ruin." By Kelly, C. B., in Wooler
V. Knott, 45 L. J. Ex. 313, 1 Ex. D.
124, 34 L. T. 362, 24 W. R. 615, af-
firmed in 45 L. J. Ex. 884, 1 Ex. D.
265, 35 L. T. 121, 24 W. R. 1004,
where a lease contained a proviso
for re-entry if the lessee of a pub-
lic house should do or suffer to
be done any act which might af-
fect or lessen or make void either
or any of the licenses.

78 Bergland v. Frawley, 72 Wis.
559, 562, 40 N. W. Rep. 372, 373.
See, also, Dennison v. Read, 3
Dana (Ky.) 586; Kew v. Trainor,
150 111. 150, 155, 37 N. E. Rep. 223,
affirming 50 111. App. 629; Chip-
man V. Emeric, 5 Cal. 49, 63 Am.
Dec. 80; In re Pcnnewell, 119 Fed.

COVENANTS OP THE LEASE. 623

not on a breach of such an agreement enter and expel the ten-
ant as for a forfeiture. So an agreement by which a lessee, on
the request of the lessor is to surrender any part of the demised
premises and, in consideration for this the lessor agrees to make
a proportional abatement of the rent is a covenant and not a
condition. Here something is to be done by both parties for the
breach of which either may recover damages but unless there
be an express provision for a forfeiture the term still continues,
after the covenant shall have been broken.'^^ So, too, as a gener-
al rule a stipulation by the lessee that he will in consideration, of
a sum of money to be paid by the lessor vacate the premises on
the sale of the same by the lessor and upon the demand of the
latter is not a condition or limitation, where there is no forfei-
ture expressly and in terms provided for a failure to quit and the
lessor has therefore no right of re-entry ^° upon the refusal
of the lessee to surrender possession but can only recover dam-
ages after he has demanded possession. A provision by which
the lessor received the right to sell the demised premises at any
time during the term and the lessee in consideration of such
sale agrees for himself and his heirs to surrender and deliver
possession at once to the lessor and release any further claim on
the demised premises means that a sale was to terminate the
lease ipso factoP-

§ 390. Whether conditions are subsequent or precedent.
The determination of a condition in a lease as subsequent or pre-

Rep. 139; Hague v. Ahrens, 53 I do not think this is so. The

Fed. Rep. 58, 61, 3 C. C. A. 426, lessor reserves the right to sell

3 U. S. App. 231. and the lessee agrees to surren-

79 Wheeler v. Dascomb, 3 Cush. der possession at once upon sale.
(Mass.) 285, 289; Wilson v. Phil- The lessee could not be compelled
lips, 2 Ring. 13. See, also, Van- by a new owner to hold it against
atta V. Dascomb, 32 N. J. Eq. 268, his agreement and if the occupa-
271. tion continues after the sale, it

80 Sloan V. Cantwell, 5 Cold. would be by virtue of a new agree-
(Tenn.) 571, 577; Dennison v. ment between the parties and not
Read, 3 Dana (Ky.) 586; Berg- by virtue of the lease. The par-
land V. Frawley, 72 Wis. 559, 561, ties must have meant that a sale,
40 N. W. Rep. 372, 1 Washb. R. ipso facto, was to terminate the
Pro. Ch. 10, sec. 3, cl. 8. lease, and the lessor's covenant

81 Baxter v. City of Providence signified his assent to this; other-
(R. I.), 40 Atl. Rep. 423. The wise no adequate force can be
court said: "The objection is that given to it."

it is not mutual in its terms.

624 LAW OF landIjOrd and tenant.

cedent depends wholly on the intention of the parties. This in-
tention is to be ascertained from the express language of the
condition as contained in the lease itself, construed with the
other portions of the lease, and in the light of the facts and cir-
cumstances of the case particular significance being attached ta
the use of the building, the length of the term, and the way in
which the rent is payable.*^ Where the construction is doubtful
the condition will be construed to be a condition subsequent
rather than a condition precedent. Subject to these rules it may
be said that if the act on the part of lessee does not necessarily
precede the vesting of the lease in him. but may accompany it,
or follow it, or may be done after the vesting with the same
effect as before the vesting, the condition is subsequent and not
precedent. Hence, where a term is created by express words and
the lessee is required in the lease to do something in reference
to the premises the condition is a condition subsequent. The
creation of a fixed term which is to begin on a date named in
the lease raises a presumption that the doing of the act by the
lessee which is made a condition shall be performed subsequently
to the vesting. And the presumption that a condition contained
in the lease is a condition subsequent is greatly strengthened
by the fact that there is a clause of forfeiture in the lease for
if the interest is not vested in the lessee and was not to vest in
him until he performed the condition then the clause of forfei-
ture would be unnecessary and useless.®^

«2 Frank v. Stratford-Handcock, lease. No day was named wlien

13 Wyom. 37, 77 Pac. Rep. 134. the rent was to be paid so that

83 In South Congregational Meet- presumptively it would begin to

ing-House, etc., v. Hilton, 11 Gray run from the date of the lease.

(Mass.) 407, a condition that a The time within which the lessee

lessee should build a new front to would have to do the thing he

the premises with glass of a speci- agreed to do is not fixed so that

fied quality, was held not to be a he would have a reasonable time

condition precedent to the vest- to perform it. A compliance with

ing of the term in the lessee upon the condition may extend beyond

the following considerations. The the time beyond tlie day he would

words "do lease, demise and let" have to pay rent. The act to be

import a term to begin presently, done implies of necessity that the

not in the future on a contin- lessee is to be in exclusive pos-

gency. This term was fixed and session and control of the prem-

was to begin on a date specified ises when he fulfills the condition,

subsequent to the date of the and it is unreasonable to suppose

COVENANTS OP THE LEASE. 625

§ 391. The construction of a provision for a forfeiture. A
clause in the lease providing for a re-entrj- upon the breach of
any covenant in the lease will be strictly construed in favor of
the tenant.^* Unless the intention of the parties is reasonably
clear upon the language of the lease that a provision for a for-
feiture upon a breach of covenant was intended, the clause will
not he given that effect. Nothing will be implied in this regard
for the purpose of raising a provision foo- a forfeiture. The
court will presume, in the absence of clear language to the con-
trary, that the parties did not mean to create a forfeiture for
breaches of covenant in the lease. Where there may reasonably
be two constructions placed upon the language employed in the
lease, the court will prefer the constiiietion which avoids the
creation of a forfeiture. An illustration of this may be found
in a case where it was held that a provision for re-entry on the
commission of waste to an amount specified meant waste pro-
ducing an injury to the reversion and unless it appears that
the reversion was injured to that amount there is no forfei-
ture.^® A proviso that a lessor may re-enter if the tenant shall
make default in the performance of any covenants for thirty
days after notice is applicable to affirmative covenants. Thus,
it cannot be assumed that the landlord was to give the tenant
thirty days' notice not to do a certain act or number of acts
which would be a breach of negative covenants. Thus, if the

a party would enter into a condi- be construed to be either prece-

tion precedent by which after dent or subsequent, according to

making extensive repairs he might the fair intention of the parties

by a slight omission lose all he to be collected from the instru-

had put into the building. The ment, and that technical words

insertion of a clause of forfeiture (if there be any to encounter

seems to imply that the term must such intention, and there are

vest, for forfeitures implies the none in this case), should give

taking away or loss of something way to that intention." Approved

in possession. Hence the lessor in Roberts v. Brett, 11 H. L. Cases,

was held bound to show an entry 354.

for a breach of condition before s< Doe d. Polk v. Marchetti, 1

he could maintain an action to B. & A. 715, 720, 9 L. J. (O. S.)

recover the premises. In constru- K. B. 126; Toleman v. Portbury,

ing a lease in Porter v. Sheppard, 39 L. J. Q. B. 136, L. R. 5 Q. B.

6 T. R. 665, 3 R. R. 305, Lord Ken- 288, 22 L. T. 33, 18 W. R. 579.

yon said: "It has frequently been ks Doe d. Darlington v. Bond, 5

paid, and common sense seems to B. & C. 855, 8 D. & R. 738, 5 L. J.

justify it, that conditions are to (O. S.) 68, 29 R. R. 436.
40

626 LAW OF LANDLORD AND TENANT.

tenant has covenanted not to build, or not to make alterations
in the premises, it can hardly be reasonably conceived that he
can escape the forfeiture arising from his breach of such a cove-
nant merely because his landlord has not given him thirty days'
notice not to raise or lower the walls, or not to vary the original
plan of the premises or not to permit new buildings to be erected
or not to allow openings or windows to be made. To require
notice in such case would be to require the landlord to give the
tenant a continuous series of notices. It is very different where
the tenant is to do something as to repair or pay money and not
merely to refrain from doing something. In such case a no-
tice may be reasonably required both to secure the performance
of the act by the tenant within a reasonable time and also to
benefit him by giving liim a short time in which to perform.^"
A proviso for re-entry in case the lessee shall not well and truly
perform and keep all covenants, conditions and agreements, is
wide enough to include negative as well as affirmative covenants
as for example, a covenant noit to carry on a particular trade
or business on the premises or not to assign or sublet without
the written consent of the lessor.*^

8« Doe d. Polk V. Marclietti, 1 dition. Here, first, the agreement

B. & Ad. 715, 9 L. J. (O. S.) K. B. purports to be in consideration of

126. the rent and conditions therein-

«7Tiinms v. Baker, 49 L. T. after mentioned; and then the

106. See, also. Croft v. Lumley, 6 words 'it is stipulated' occur more

H. L. Cas. 672, 27 L. J. Q. B. 321, than once: and then in the last

4 Jur. (N. S.) 903, 6 W. R. 523. sentence of the instrument come

"A party who demises land by an the words *it is lastly stipulated

instrument not under seal may in- and conditioned that the tenant

troduce a condition into it, pro- shall not assign, transfer, under-

vided he use apt and appropriate let, or part with any part of the

words for that purpose. The lands, otherwise than to his wife

words 'provided always,' sub con- and children.' These words are

ditione, ita quod, used in a con- clearly introduced into the instru-

veyance of real estate by them- raent on the part of the lessor for

selves make the conveyance con- they are for his benefit. The word

ditional. But, in a lease for years, 'conditioned' is fairly a word of

no precise form of words is nee- condition. It is said that the word

essary to make a condition. It is 'stipulated' and the word 'condi-

sufficient if it appear that the tioned,' being used together have

words used were intended to have the same meaning and import a

the effect of creating a condition. covenant and not a condition;

They must be words of the land- but there are several authorities

lord for he must impose th* con- which show that, if words both of

COVENANTS OF THE LEASE. 627

§ 392. The enforcement of a forfeiture after a tenant has
become a vendee. Where a tenant has an option to purchase
the demised premises, it may become necessary to determine
whether a forfeiture taking place before he has exercised his
option to buy may be thereafter enforced by the landlord. If
the performance of all conditions and covenants by the tenant
was a condition precedent to his valid exercise of the option by
him the forfeiture may thereafter be enforced particularly
if the landlord was ignorant of the fact of forfeiture when the
option to purchase was exercised by the tenant. But where this
is not the case or where the landlord has acquiesced in the exer-
cise of the option by language or conduct amounting to an estop-
pel a different question arises. A tenant who has an option to
purchase the demised premises after he has exercised his option
by giving the landlord a proper notice or by some other unequiv-
ocal act which is brought to the knowledge of his landlord is
in a vastly different position as regards his landlord from what
he was before he exercised his option. He is then a vendee in
pos.session and his former landlord has become the vendor. The
former tenant in his new capacity of vendee is in equity the
real owner though the legal title to the fee is still in the land-
lord. The vendor or former landlord is regarded in equity as
a trustee for his former tenant, the present vendee. Of course
the vendor is not a mere dormant trustee but one having a very-
substantial and personal interest in the property with a right
to protect this interest. His right, however, is not an absolute
right such as he had when he was a landlord, but a limited right
as a vendor. He can protect his rights as a vendor but he may
not, in so doing, encroach upon any of the rights of his former
tenant as a vendee. He can do nothing either as a landlord or
as a vendor which will destroy any rights which the former
tenant has acquired by becoming a vendee. He cannot, for
example, after the tenant has become a vendee, enforce a for-
feiture which he might have enforced while the tenant was such,
particularly if the performance of the condition on which the

covenant and condition are used 'conditioned' import a condition,
in the same instrumeut, they both it must also operate." By Bay-
shall operate. If the word 'stipu- ley, J., in Doe d. Henniker v. Wall,
lated' import a covenant, it will S B. & C. 308, 1 M. & R. 694.
operate as such; and if the word

628 LAW OF LANDLORD AND TENANT.

forfeiture is based was not a condition precedent to the exercise
of the option to purchase.*^

§ 393. The necessity for a notice of a forfeiture. If the lease
requires that a notice of forfeiture shall be given by the lessor
prior to re-entry for a breach of covenant an entry without
the notice may be invalid. If nothing is said in the lease as to
the necessity of a written notice of forfeiture the mere act of
taking possession is all the notice which is required.^® If no-
tice be required and the lessors are tenants in common, all must
give notice. A notice of forfeiture by one will only effect his
share.^'* The rule would likely be otherwise with joint ten-
ants where notice by one would be sufficient to bind all. If the
lessees are tenants in common apparently upon general prin-
ciples, all ought to be notified of a forfeiture. But where they
hold jointly notice to one is notice to all. Where an English
statute required that a landlord must notify his tenant of the
breach of a condition or covenant under which the landlord
claims a forfeiture, it was held that notice of forfeiture based
on breach of a covenant to repair must specify all the particu-
lars in which the repairs are required and must point out to
the tenant exactly what he will have to do in order to fulfill his
covenant.®^ So, also, a notice which gives in detail a list of re-
pairs which may be required according to the condition of each
house where the same may be necessary, and which does not
tell the tenant precisely what repairs are to be done, but tells
him what may have to be done leaving it for the tenant to as-
certain which of the several houses comprised in the lease and
in what part of each house the repairs are necessary^ is suffi-
cient.®^

ssRafferty v. Schofield, 66 L. J. so Updegraff v. Lesem (Colo.

Ch. 448; (1897) 1 Ch. 937, 76 L. T. App. 1900), 62 Pac. Rep. 342.

648, 45 W. R. 460, citing Sliaw v. 9i Fletcher v. Nokes, 76 L. T.

Foster, 27 L. T. 281, L. R. 5 H. L. Rep. 107; (1897) 1 Ch. 271; Re

321. In this case the tenant was Sorle, 78 L. T. Rep. 384; (1898)

in default on a covenant or con- 1 Ch. 652. The court says that

dition when he exercised his op- the tenant must have full notice

tion to purchase. of what he is required to do. Ren-

80 Metropolitan Land Co. v. ton v. Barnett, 77 L. T. Rep. 645;

Manning, 98 Mo. App. 248, 257, (1898) 1 Q. B. 27G.

71 S. W. Rep. 696. »2 Matthews v. Usher, 68 L. J.

Q. B. 988, 81 L. T. 542.

COVENANTS OF THE LEASE. 629

§ 394. The eiiect of a forfeiture upon the lease. The mere
forfeiture otf a lease by the default of a tenant to perform a
covenant or condition of the lease has no effect alone upon the
lease except to give the lessor a right to enter for the default.
Indeed, it may be said that the breach of a condition of a lease
by the lessee does not work a forfeiture without some act on
the part of the lessor claiming it.''^ But the entry of the land-
lord upon the premises with the intention of taking possession
for a breach of condition or of a covenant terminates the lease.
At the common law by an entry after condition broken, the lease
is put an end to. The lessor is then in possession as of his for-
mer estate. His entry is the equivalent of a surrender and he
cannot thereafter collect the rent subsequently accruing.^*
Rent as such will no longer accrue under the lease. The liabil-
ity of the lessee to pay rent rests solely upon his covenant to
pay and as the relationship of landlord and tenant is extin-
guished by the re-entry of the landlord, the rent cai? no longer
accrue.^^ The re-entry, however, does not preclude the landlord
from suing for and recovering arrears of rent which may have
accrued prior to the re-entry.®^ Thus, for example, an action
lies for rent accrued prior to re-entry for a forfeiture though
by the express terms of the lease, the lessor on such re-entry
takes the premises as though such lease had never been
made.^^ After a re-entry by a landlord for a forfeiture which

93 Boston El. Ry. Co. v. Grace 13.3; Jennings v. Bond, 14 Ind.
& Hyde Co., 112 Fed. Rep. 279, App. 282, 42 N. E. Rep. 957; Brig-
286, 50 C. C. A. 239, holding that ham Young Trust Co. v. Wagener,
a lessor who enters for other rea- 13 Utah, 236, 44 Pac. Rep. 1030:
sons cannot justify his entry by Mattice v. Lord, 30 Barb. (N. Y.)
assigning a breach of a covenant 382.

which he had not in fact acted os Hall v. Gould, 13 N. Y. 127;

upon at the time of the entry. The McCready v. Lindenborn, 172 N.

lessor must determine the ten- Y. 400, 406, 65 N. E. Rep. 208;

ant's right of possession by entry Vogel v. Piper, 89 N. Y. Supp. 431,

or notice of a suit for the posses- 432; In re Hevenor, 144 N. Y. 271,

sion. Small v. Clark, 97 Me. 304, 39 N. E. Rep. 393.

54 Atl. Rep. 758. 'J" Harding v. Austin, 93 App.

94 Fell V. Dentzel (Del.), 42 Atl. Div. 564, 87 N. Y. Supp. 887, 888.
Rep. 439; Wilson v. Goldstein, 152 s" Hartsharne v. Watson, 4
Pa. St. 524, 31 W. N. Cases, 448, Ring. (N. C.) 178, 5 Scott, 506, 6
25 Atl. Rep 493; Mackubin v. D. P. C. 404. 1 Am. 15, 7 L. J.
Whitcroft, 4 Har. & McH. (m3.) C. P. 138, 2 Jur. 155

630 LAW OP LANDLORD AND TENANT.

has tlie effect and operation of a surrender the landlord cannot
recover for the subsequent breach of any covenant. Thereafter
the tenant is under no O'bligation to repair on his express cove-
nant to do so. Nor can he maintain an action on any covenant
Avhich runs with the land where the breach is subsequent to his
entry for condition broken. But after his entry he may treat
as trespassers all persons whom he finds in possession, as, for
example, an assignee of the tenant or a subtenant. The lease
is absolutely at an end by the entry of the landlord and, while
the landlord cannot collect any rent subsequently accruing, the
tenant is also precluded from enforcing any rights which the
lease may have conferred upon him. An option which he may
have had under the lease to purchase the premises is terminated
by the entry of the landlord upon the tenant's default®* in all
cases where the performance of all covenants and conditions by
the tenant was a condition precedent to the enforcement of an
option to purchase the premises vested in him. But a tenant
who has given his landlord notice of his intention to exercise
his option to purchase before the latter has entered for a for-
feiture thereby becomes a vendee in possession and is not de-
prived of any right as such by a subsequent entry by the
landlord. A re-entry by the landlord, not for a breach of a
condition but under his statutory right to regain his posses-
sion on the tenant's failure to pay rent after an action to re-
cover possession under the statute does not deprive him of
his rights under the lease. The right of the lessor to re-enter
upon a breach by the lessee of a covenant to pay rent or of any
other covenant and to relet the premises as an agent of the les-
see, holding the lessee liable for any deficiency, is not destroyed
by a re-entry by the lessor under a warrant in summary pro-
ceedings and an action thereon may thereafter be maintained.®^
But generally an entry by a landlord for some particular breach
of covenant is a waiver of his right to enter for the breach of
any and every other covenant or condition in the lease. The
parties to the lease may stipulate by proper language that a
re-entry by the landlord shall not work a forfeiture of the
right of the landlord to collect future rents. So, where it is

»8 Ober V. Brooks, 162 Mass. 102, Rep. 1119, affirming 82 N. Y. Supp.
38 N. E. Rep. 429. 891, 8-1 App. Div. 360.

90 Baylies v. Ingram, 73 N. E.

CO^'ENANTS OF THE LEASE

631

Stipulated in the lease that a re-entry- upon a breach of a
covenant or condition shall not woi-k a forfeiture of the rents
to be paid during the full term; and the lea^e is not expressly
declared to be terminable upon a breach of covenant, a lessor
who has re-entered by virtue of a writ of restitution may col-
lect rent for the whole term named in the lease, giving the ten-
ant credit for any rent the landlord may have received from
others after his entry upon the premises.^ So, also, an actual
re-entry or its modem equivalent, an action of ejectment by the
landlord being, in effect, a surrender, deprives the sub-tenants
of all rights they may have had under their leases and also re-
lieves them of all liability to pay their rent to their landlord.^
The subtenants are thereafter trespassers as far as the original
landlord is concerned, and he may either oust them by appro-
priate proceedings at law, or convert them into his tenants by an
express agreement or by permitting them to remain in posses-
sion and pay rent.^

1 Grommes v. St. Paul Trust
Co., 147 111. 634, 35 N. E. Rep.
820, affirming 47 111. App. 568.

2 G. W. Ry. Co. V. Smith, 45 L.
J. Ch. 235, 2 Ch. D. 235, 34 L. T.
267, 24 W. R. 443, 47 L. J. Ch. 97,
3 App. Cas. 165, 37 L. T. 645, 26
W. R. 130.

3 In New York a provision that
a lessor may on the failure of the
lessee to pay rent enter upon the
premises, remove all persons
therefrom and enjoy the former
estate therein construed in con-
nection with a provision that the
lessor may, at his option let them
and hold the lessee for any defi-
ciency means a common-law entry.
No rights would accrue to the
lessor on this covenant after his
entry unless he entered by a com-
mon-law action of ejectment. No
liability for future rent attaches
to the tenant under such a lease
where the entry by the landlord
is brought about by an entry after
a judgment in summary proceed-

ings. The action of the landlord
in procuring and issuing a war-
rant in summary proceedings puts
an end to the lease for all pur-
poses. But this rule was regarded
as very technical and met with
strong dissent. Michaels v. Fishel,
169 N. Y. 381, 62 N. E. Rep. 425.
In McCready v. Lindenborn, 172 N.
Y. 400, 65 N. E. Rep. 208, the land-
lord re-entered pursuant to a cov-
enant the tenant to pay any de-
ficiency by the tenant and the
court holding that such a cove-
nant survived a re-entry said:
"The right of action upon the cov-
enant broken prior to re-entry
survived that act, and the plain-
tiff was at least entitled to re-
cover rent, as such, for the month
named." And again: "One un-
broken covenant survived re-entry
because it provided expressly for
that contingency by authorizing
the lessor to relet the premises,
and requiring the lessee to pay
any deficiency in equal monthly

632 LAW OF LANDLORD AND TENANT.

§ 395. The effect in general of failure to pay rent. In tlie
absence of a statutory provision to that effect, or of some ex-
press provision for a forfeiture in the lease, a failure on the
part of the tenant to pay rent does not work a forfeiture of his
rig-lit to possession. This rule, it is said, is too clear to need
support from any authority.* Hence, where by an agreement it
is stipulated that a sublease is to be made containing an abstract
of covenants in the original lease and the agreement also pro-
vides that the undertenant shall not sublet without consent, the
undertenant holds under the agreement which incorporates the
covenants of the original lease with the proviso for re-entry
which in that instrument is attached to them but the agreement
cannot be read as applying a proviso for re-entry to the new
clause agreeing not to underlet without consent.^ It is very
common and well nigh universal to provide by an express stipu-
lation that a failure to pay rent shall work a forfeiture of the
term. A provision that any breach of any covenant or condi-
tion of the lease shall work a forfeiture applies to a covenant to
pay rent.® A provision in the lease that a breach of any cove-
nant therein shall operate as a forfeiture, or shall confer a right
to re-enter upon tlie landlord, or shall render the lease void will
usually have the same effect. In very many of the states statutes
have been enacted which in effect provide that the lease shall
be forfeited by the tenant upon his refusal or failure to pay
rent. It is seldom, however, that the forfeiture is expressly de-
payments as the amount thereof Sanders (N. J. 1903), 54 Atl. Rep.
should, from month to month, be 448; De Lancey v. Ga Nun, 12
ascertained by deducting from the Barb. (N. Y.) 120; Ewing v. Miles,
rents reserved the rents received. 12 Tex. Civ. App. 19, 27, 33 S. W.
By the express contract of the par- Rep. 235; Judson v. Gurley, 52
ties, a separate and independent Tex. 226; Crawley v. Pfice, L. R.
ascertained by deducting from the 10 Q. B. 302, 33 L. T. 203, 23 W.
covenant every month when there R. 874; Shaw v. Coffin, 14 C. B.
was a deficiency ascertained in (N. S.) 372.

the manner provided." •'■' Crawley v. Price, L. R. 10 Q.

4 Bucker v. Warren, 41 Ark. B. 302, 33 L. T. 203, 23 W. R. 874.
532; Brown's Adm'r v. Bragg, 22 o Chapman v. Kirby, 49 111. 211;

Ind. 122, 123; Beal v. Bass, 86 Me. Bacon v. Western Furniture Co.,
325, 335, 29 Atl. Rep. 1088; Ver- 53 Ind. 229, 230; Faylor v. Brice,
mont V. Society, etc., 28 Fed. 7 Ind. App. 551, 34 N. E. Rep. 833;
Cases, 16,919, 1 Paine, 652; Bart- Wilson v. Jones, 1 Bush (Ky.)
lett V. Greenleaf, 11 Gray (Mass.) 173; Gould v. Bugby, 6 Gray
98; Ocean Grove C. M. Ass'n v. (Mass.) 371.

COVENANTS OF THE LEASE, 633

clared by the statute. These statutes confer upon the landlord
a remedy for the recovery of the possession of the premises
upon the failure of the tenant to pay the rent. The proceedings
taken in accordance v^ith their provisions are usually of a
summary nature and they are intended to give the landlord a
remedy for the recovery of the premises which shall be more
expeditious and less expensive than an action of ejectment. If
the lease contains an express declaration of forfeiture on a
breach, the institution by the landlord of a summary proceed-
ings under one of these statutes is usually regarded as a re-entry
on his part. If there is no forfeiture declared by the lease, nev-
ertheless the lease is forfeited by the operation of the statute as
soon as the landlord has put into operation the remedy which
is conferred upon him.

§ 396. The necessity for a demand by the lessor in order to
work a forfeiture. The lease may be forfeited by the tenant
for a breach of a covenant or condition and he may thereafter
be ousted from the premises by an action of ejectment or other
judicial proceeding according to the statute. The landlord can-
not, however, either at common law or under the statutes, as
a general rule, summarily eject the tenant on the occurrence of
a forfeiture and assume possession without a demand or at
least some notice to the tenant with an opportunity for the
tenant to be heard in court. "^ A mere taking possession of the
premises after a forfeiture when they are deserted by the tenant
is not sufficient and a re-entry made by the landlord in such a
manner is of no effect.^ A provision for a forfeiture of the
lease upon the failure of the tenant to pay rent cannot be en-
forced on the default of the tenant unless the landlord shall
prove that a demand for the payment of the rent has been made
by him.'* The same rule is applicable to a forfeiture which is

"! Murphy v. Century Building feiture for the nonp.Vnient of

Co., 90 Mo. App. 621. rent, there must be proof of a de-

« Robey v. Prout, 7 D. C. 81, af- mand of the precise sum due, at

firmed in 15 Wall. (U. S.) 471, a convenient time before sunset

475, 476. In which case the court on the day when the rent is due,

said, quoting from Connor v. upon the land in the most notori-

Bradley, 1 How. (U. S.) 217: "It ous place of it, though there be

is a settled rule at the common no person on the land to pay."

law that where a right of re entry » Sauer v. Meyer, 87 Cal. 34, 25

is claimed on the ground of for- Pac. Rep. 153; Robey v. Prout, 7

G34

LAW or LAJSTDLOBD AND TENANT,

based upon the breach by the tenant of any other covenant or
condition binding upon him.^° The landlord must demand that
the tenant shall perform the condition or covenant which is
obligatory on him by the lease before he can bring ejectment.^^
It is competent for the parties to a lease to waive the right to
have a demand made by the lessor upon the lessee as a prereq-
uisite for a forfeiture. This would be the construction of a
provision for re-entry upon the failure of the lessee to pay rent
' ' without any notice whatever. ' ' " But a waiver of a demand
by the tenant must be made in express language for it can only
be implied from such circumstances as will furnish clear
and convincing proof of an intention on the part of the tenant
to waive his right to a demand of the performance of the con-
dition or covenant. A demand is not necessary as a basis to en-
force a forfeiture where the landlord is in possession with the
consent of the tenant and there is no clause providing for a re-
entry.^'

D. C. 81, affirmed 15 Wall. (U. S.)
472, 475; Rowland v. White, 48
111. App. 236; Taylor v. Brice, 7
Ind. App. 551, 34 N. E. Rep. 833;
Cole V. Jolinson, 120 Iowa, 667,
94 N. W. Rep. 1113; Chandler v.
McGinnins, 8 Kan. App. 421, 55
Pac. Rep. 103; Murphy v. Cen-
tury Building Co., 90 Mo. App.
621; Haynes v. Union Investment
Co., 35 Neb. 766, 53 N. W, Rep.
97; Cannon v. Wilbur, 30 Neb.
777, 47 N. W. Rep. 85; Godwin v.
Harris (Neb. 1904), 98 N. W. Rep.
439; Eichenlaub v. Neil, 3 Ohio
Dec. 365, 10 Ohio Cir. Ct Rep.
427; Westmoreland v. Cambria
National Gas Co., 130 Pa. St. 235,
18 Atl. Rep. 724, 25 W. N. Cases,
103; Parks v. Hays, 92 Tenn. 161,
163, 22 S. W. Rep. 3; Henderson
V. Carbondale Coal & Coke Co.,
140 U. S. 25, 11 Sup. Ct. Rep. 691;
Kansas City Elev. Co. v. Union
Pac. Ry. Co., 17 Fed. Rep. 200, 202;
Fleming v. Fleming Hotel Co., 70
N. J. Eq. 509, 61 Atl. Rep. 157;
Carpenter v. Wilson, 100 Md. 13,

59 Atl. Rep. 186; Mactier v. Os-
born, 146 Mass. 399, 15 N. E. Rep.
641.
loDurkee v. Carr, 38 Oreg. 189,

63 Pac. Rep. 117. Where rent is
payable in instalments and the
lessor consents that an amount
due for several months shall
stand until a subsequent date,
ejectment cannot be maintained
until a demand has been made
after the date has been passed
and the tenant is in default. Sauer
V. Meyer, 87 Cal. 34, 25 Pac. Rep.
153.

11 Molineux v. Molineux, Cro.
Jac. 144; Doe d. Foster v. Wand-
lass, 7 T R. 117; Acocks v. Phil-
lips, 5 Hon. 183; Barr v. Glover,
10 Ir. Com. L. Rep. 113; West v.
Davis, 7 East, 363; Dixon v. Roe,
7 C. B. 134; Smith and Bustard's
Case, 1 Leon, 141, Co. Litt. 202a,
1 Wm. Saunders, 287.

12 Pendill v. Union Mining Co.,

64 Mich. 172, 31 N. W. Rep. 100.
i3Guffey V. Hukill, 34 W. Va.

49, 11 S. E. Rep. 754, holding that

COVENANTS OP THE LEASE. 635

§ 397. Waiver of the demand for the rent. The parties to
the lea.se may expressly or by necessary implication waive a
demand for the rent.^* The requirement of the law that a de-
mand for the rent must be made upon the premises may be
waived by a stipulation in the lease making the rent payable at
some other place. It is competent for the parties to the lease to
agree in express language that no demand for the rent shall be
required and that the landlord may at once, on the failure of
the tenant to pay the rent, re-enter upon the demised premises.^^
Waivers of the right of the tenant to have a demand made upon
him for the rent are not favored and are never created by im-
plication.^^ A provision that if the lessee shall neglect to pay
the rent the lease shall thereupon expire and terminate, and that
the lessor may thereupon re-enter upon the premises does not
dispense with a demand for the rent.'' For the phrase "expire
and terminate" means expire and terminate at the lessor's op-
tion being equivalent in meaning to the stipulation that a lease
shall be void in case the lessee fails to keep his covenants which
is generally held to mean voidable at the option of the lessor.^'
The tenant may waive the demand of rent on the premises or
at any particular place by promising or by giving the landlord
to understand that he will pay it at some other place. If the
landlord, by reason of the tenant's promise to pay the rent at
some place specified other than the place named in the lease,
absents himself from the latter place as a result of which the
landlord does not demand the rent on the day named, the con-
duct of the tenant is a waiver of the demand.^^

■where the lessor remained in pos- without giving six months' notice

session an execution of a new to quit.

lease to another party was a suffi- " Norris v. Marrill, 43 N. H.

cient declaration of forfeiture. In 213.

reference to a condition in an is Lewis v. Hughes, 12 Colo.

agreement for a lease under which 208, 20 Pac. Rep. 621.

the tenant entered and by which le Gaskill v. Trainor, 3 Cal. 334.

he was to have a lease on certain i^ Bowman v. Foot, 29 Conn.

repairs being made by aim, see 331, 338.

Hayne v. Cumming, 16 C. B. (N. is Bowman v. Foot, 29 Conn.

S.) 421, 10 Jur. (N. S.) 773, 10 331, 338; Jones v. Carter, 15 M.

L. T. 341, in which It was held & W. 718; Jackson v. Harrison,

that the landlord might re-enter at 17 Johns. (N. Y.) 66.

once on a breach of condition is Fisher v. Smith, 48 111. 184.

636 LAW OF LANDLORD AND TENANT.

§ 398. The entry of landlord for the purpose of a reletting.
At common law, if a lessee broke a covenant of the lease, cither
the covenant to pay rent or some other covenant, and if the les-
sor had the right to re-enter for a breach of a covenant, the
lessor might take either of two courses. He might abstain from
a re-entry, in which case the lessee remained liable on his cove-
nant to pay rent until the end of the term, or, on the other
hand, he might re-enter and resume the possession, in which
case it was a surrender and the lessee's liability to pay rent was
at an end. If the lessor did not re-enter, he retained all his
rights against the lessee, but risked losing the rent for his prop-
erty by reason of the lessee 's possible insolvency. If he re-entered
he gained the right to seek a solvent tenant, but ran the risk of
losing the rent of the premises by reason of his inability to find
one. Hence, in order to enable the landlord to retain his hold
upon his former tenant while at the same time he should enjoy
the opportunity of securing a new one it became common to in-
sert a proviso in the lease to the effect that the landlord may re-
enter the premises upon the failure of the tenant to pay rent
and may re-let them on the tenant's account with the right to
hold the tenant liable for any deficiency in the amount received
as rent during the remainder of the term. Usually a provision
that a landlord may re-enter the premises and may re-let them
for the benefit of the lessee will be strictly construed in favor
of the tenant. In case the landlord re-enters in a case where he
has no right to re-enter and to relet, his re-entry will be taken
as the acceptance of a surrender and will discharge the tenant
from all future liability under the lease,^*^ if the tenant so elects.
On the other hand under such circumstances, the tenant may
treat an illegal entry and a re-letting by the landlord as an evic-
tion and he may recover his damages from the landlord for the
loss of the term.-^ A covenant that a lessor may on the breach

20 Burhans v. Monier, 38 App. cause the tenant does not reside

Div. 466, 56 N. Y. Supp. 632. there. Thus premises which were

21 A landlord who under the leased for a lodging-house are not

lease has the right to enter on the vacant merely because the keeper

premises in case they shall be- of the house lives elsewhere, if the

come vacant is guilty of an evic- house is occupied by the lodgers,

tion where he enters without the Burhans v. Monier, 38 App. Div.

premises being vacant. The prem- 466.
ises are not vacant merely be-

COVENANTS OF THE LEASH.

637

of any covenant in the lease, re-enter on the premises and at his
discretion re-let them at the risk of the lessee who shall be liable
for the ensuing loss of rent, if any, which shall thereby be sus-
tained by the lessor, requires that the lessor shall re-let or at-
tempt to re-let the premises after his re-entry before he can
hold the lessee liable under the covenant. A mere re-entry alone
is not sufficient for it puts an end to the lease with all its cove-
nants. The lessor must attempt honestly and in good faith to
secure a new tenant for the premises and if he is then unsux;-
cessful, his former tenant continues liable."

§ 399. Demand for payment of the rent— v^hen and how
made. The demand for rent by the landlord in order to con-
stitute a proper basis for a forfeiture must, at common law,

22 "A covenant like that here in
question, not uncommon in Massa-
chusetts, has for its object to give
the lessor some of the advantages
which result from both the courses
before described. The lessor is
permitted to seek a solvent tenant
without letting go his hold upon
the old one. The covenant does
not compel the lessor to relet or
to attempt to relet if he does not
wish to do so. He need not avail
himself of the covenant. He may
still abstain from re-entry and so
hold the lessee liable for rent eo
nomine. He may still re-enter,
and thereafter may use the prem-
ises as he sees fit, or may leave
them wholly unused. The lessee
cannot complain of either action.
By the first he is left in posses-
sion of the premises, by the sec-
ond he is relieved from his lia-
bility, under the covenant, to pay
rent. On the other hand, the les-
sor may avail himself of the cove-
nant. He may reenter and may
exercise his discretion to relet the
premises at the risk of the lessee.
The exercise of this discretion is
manifested by a reletting or by an
attempt to relet. If there is an

actual reletting, the covenant be-
comes operative and the original
lessee is liable for the deficiency
of rent, at any rate if the relet-
ting is honestly and reasonably
made. If an honest and reason-
able attempt to relet is made with-
out success, then also the lessee
is liable; the lessor need not go
through the form of a reletting.
But if the lessor does not relet,
and makes no attempt to relet, he
has not exercised the discretion
nor has he made the election given
him by the covenant, and, as we
hold, it is only upon the exercise
of the lessor's discretion to relet
that the covenant imposes a lia-
bility upon the lessee. The re-
entry has terminated the lessor's
right to recover rent eo nomine,
and the right given by the cove-
nant to recover the difference be-
tween the old rent and the new
does not arise until the election
to relet has been made by the
lessor." By the court in Weeks v.
International Trust Co., 125 Fed.
Rep. 370, 375, citing W^ay v. Reed.
6 Allen (Mass.) 364; Bowditch v.
Raymond, 146 Mass. 109, 15 N. E.
Rep. 285.

638

LAW OF LANDLORD AND TENANT.

state that it is a demand for the precise and specific amount of
rent then due, must be made of the tenant or person who may-
be found in possession, must be made upon the premises where
no other place of payment is expressly mentioned in the lease,
and must be made at a reasonable time before sunset of the day
upon which the rent becomes due.^^ The demand for the rent
must be made on the lessee or the occupant in person. The serv-
ice of a written demand by mail may not be sufficient where it
does not appear that the lessee ever received it or that there
was any good or sufficient reason why the demand was not
served on him personally.^* The demand must be made on the
day the rent falls due at a reasonable time before sunset.^^ The
demand must be made upon the premises^® and if there be a
dwelling house there, the demand must be made at the front

23 Bacon v. Western Furniture
Co., 53 Ind. 229, 230; Academy of
Music V. Hackett, 2 Hilt. (N. Y.)
217; CMpman v. Emeric, 3 Cal.
273; Gaskill v. Trainer, 3 Cal. 334;
Gage V. Bates, 40 Cal. 384; Mc-
Glynn v. Moore, 25 Cal. 384; Bow-
man V. Foot, 29 Conn. 331, 342;
Camp V. Scott, 47 Conn. 366, 375;
Chapman v. Wright, 20 111. 120;
Jenkins v. Jenkins, 63 Ind. 415,
422, 30 Am. Rep. 229; Chapman v.
Hainey, 100 Mass. 353; Blackman
V. Welsh, 44 Mo. 41; Haynes v.
Union Inv. Co., 35 Neb. 766, 53 N.
W. Rep. 979; Jones v. Reed, 15
N. H. 68; Jewett v. Berry, 20 N.
H. 36; McQueston v. Morgan, 34
N. H. 400; Remsen v. Conklin, 18
Johns. (N. Y.) 447; Boyd's Les-
see V. Talbot, 12 Ohio, 212; Smith
V. Whitbeck, 13 Ohio St. 471; Wil-
cox V. Cartwright, 1 Sack. Leg.
Rec. (Pa.) 130; Follin v. Coogan,
12 Rich. (S. Car.) Law, 44; Wil-
lard V. Benton, 57 Vt. 286; Prout
V. Roby, 15 Wall. (U. S.) 471, 476;
Connor v. Bradley, l How. (U. S.)
23 7; Henderson v. Carbondale
Coal & Coke Co., 140 U. S. 25, 33,
n Sup. Ct. Rep. 691, 35 Law. ed.

332; Bishop v. Trustees of Bed-
ford Charity, 28 Law Jour. 215;
Dixon V. Roe, 7 C. B. 134; Forster
V. Wandlass, 7 T. R. 117; Smith
& Bustard's Case, 1 Leon. 141.

24 Henderson v. Carbondale Coal
& Coke Co., 140 U. S. 25, 33, 11
Sup. Ct. 691, 35 Law. efl. 332.

25 Phillips V. Tucker, 3 Ind. 132 ;
Meni v. Rathbone, 21 Ind. 454;
Jenkins v. Jenkins, 63 Ind. 415,
422, 30 Am. Rep. 229; Faylor v.
Brice, 7 Ind. App. 551, 34 N. E.
Rep. 833; Sperry v. Sperry, 8 N.
H, 477; Remsen v. Conklin, 18
Johns. (N. Y.) 447; New York
Academy v. Hackett, 2 Hilt. (N.
Y.) 217; Jackson v. Harrison, 17
Johns. (N. Y.) 66; Co. Litt. 202a;
Jones V. Reed, 15 N. H. 68; Smith
V. Whitbeck, 13 Ohio St. 471.

20 McGlynn v. Moore, 25 Cal.
384; Bowman v. Foot, 29 Conn.
331, 342; Camp v. Scott, 47 Conn.
366, 375; Smith v. Whitbeck, 13
Ohio St. 471.

27 McGlynn v. Moore, 25 Cal.
384; Burroughs' Case, 4 Coke, 73;
Buskin & Edmund's Case, Cro.
Eliz. 415; Co. Litt. 201b, 202a.

COVENxVA^TS OF THE LE.iSE

639

door Of s.ch house.- The demand must correctly state the name
of the person by whom the lease was given - and must be for
the precise sum of rent which is due.^s

§ 400, Who may exercise the right to re-enter. At the com-
mon law no one but the grantor or his heirs coidd re-enter for a
br ach of a condition. The right to re-enter for a condition
broken was not assignable so that no grantee or assignee of the

:Z7T T'tf '' "'^'"'^"^ '' ^^^ ^^^^^^ '' «^^ --<^ition by
a re-entiy.3o The reason of this was said to be in order to dis

courage maintenance, the suppression of right and the stirring
up of lawsuits. By statute, however,^! all grantees of the re-
version, their executors, heirs, successors and assigns were de-
creed to have the same advantage against the lessees, their exe-
cutors, administrators or assigns, by entr, for non-payment of
rent or for doing waste or other forfeiture, with the same rem.
^^^7^^t^o/ for a condition in the lease as the lessors or grant-
ors had before them. This act, it was held, applied only to
leases m writing and under the seal.33 The words "other for-
feiture m the statute, although general in their meaning do
not include every breach of a condition but only breachS of
those conditions which are incident to the reversion, as the pay-
ment of rent, or for the benefit of the estate, as for not w Jin.
It or keeping the premises in good repair. So, it has been held
that the breach of a condition not to assign without a license
trom the lessor is a breach of a collateral condition which is
not within the statute.- This statute, however, and the similar
statutes which have been based upon it in the various states by
which the right of a lessor to enforce a condition by re-entry is
conferred upon his grantee, do not make what was before their
passage a mere chose in action an estate in the land ^* Hence
such right to enforce a forfeiture is not an estate or interest in

28 Henderson v. Carbondale Coal a. standen v. Chrismas. 10 L J

Ct. 691. 35 L. ed. 332. c. B. 920, 930; Brydges v Lewis

29Wildman v. Taylor, 4 Ben. 3 L. J. Q B ^^^3^"^^-^^ ^- ^«^^^'

42, 29 Fed. Cas. No. 17.654; Gage 33 Lucas y. How, Sir T Raym

V. Bates, 40 Cal. 384; Smith v. 250; Collins v. Sillye Styles 2^-'

Whitbeck, 13 Ohio St. 471. Pennant's Case, 3 Colie 64 ' '

corvee ^405^ '" "^^"^ ''''■ /* ^^^^^^ ^ ^^^^^^ storage
3^32 Hen Vin. c. 34

640 LAW OP LANDLORD AND TENANT.

the land which can be sold, alienated or conveyed as such. It
is not necessarily an incident of the reversion, or a part of it,
for the grantor when he re-enters is not in possession by reason
of any rights of ownership which he had as owner of the re-
version but he is in possession by reason of the forfeiture.^'^
Hence, because of this rule, it has been held that a lessor who had
demised his whole interest subject to a right to re-enter on
breach of condition, may himself enter on condition broken,
though he had no reversion.^** In other words, at common law
a stranger to the lease cannot enter for a breach of condition.
Thus, a beneficiary of a trust though he joins in the lease and
a power of re-entry is reserved to him in it in express words
cannot maintain ejectment in his own right against a lessee for
a breach of condition. The execution of the lease by the bene-
ficiary is merely formal and as a confirmation of the execution
of a power in the trustees. Nor does it matter that the benefi-
ciary who is named in the lease is to receive the rents which may
accrue thereunder and the sole trustee dies leaving no one who
has a legal title to the premises. The power to re-enter can un-
der these circumstances be exercised by a trustee only and while
the common law will make no allowance for the peculiar circum-
stances in which the beneficiary finds himself, i. e., unable to
collect the rents and at the same time unable to oust a non-rent
paying tenant, a court of equity will, on proper application,
appoint a new trustee to act for the benefit of the cestui que
trust in this emergency. ^'^ In some cases of leases of land for
mining purposes where a forfeiture has occurred by a failure on
the part of the lessee to develop the land, it has been held that
a grantee of the lessor or the heirs of such grantee may enforce
the forfeiture and enter for condition broken.^^ An assignee
of a part of the reversion who takes an estate as a tenant for
years, or life, in all the lands assigned may be, so far as the les-
see is concerned, a grantee within the meaning of the statute,

35 Southard v. Railroad Co., 26 mant, 9 Ex. 635, 23 L. J. Ex. 135,
N. J. Law, 21; Webster v. Cooper, 18 Jur. 335, 2 W. R. 276.

14 How. (U. S.) 501. 37 Doe d. Barker v. Goldsmith,

36 Doe d. Freeman v. Bateman, 2 C. & J. 674, 2 Tyr. 710, 1 L. J.
2 B. & Aid. 168, 20 R. R 399 On Eq. 25G.

the question whether the right of 38 island Coal Co. v. Coombs,

a lessor to re enter for forfeiture 152 Ind. 379, 390, 53 N. E. Rep.

15 assignable, see Hunt v Rem- 452, 456.

COVENANTS OF THE LEASE. 641

and he may consequently have the advantage of the condition
broken during his term.^^ But an assignee of the reversion in
a part of the land is not a grantee within the statute. For the
condition being an entire condition cannot be apportioned by
the lessor without he consent of the lessee, and an attempt to
apportion it without the consent of the lessee will destroy it.
§ 401. The lessee cannot take advantage of a forfeiture.
Inasmuch as the landlord alone has an absolute right to elect
whether he shall enforce a forfeiture or whether he shall waive
it, the tenant cannot base a refusal to pay rent upon the fact
that the lease has been forfeited by his default. The lease is
not absolutely void upon the forfeiture or default of the tenant
but is voidable merely and is still enforcible by the landlord as
a valid lease if he shall elect to enforce it.*° The lessee cannot
himself take advantage of a forfeiture so that by failing to pay
rent he can put an end to the lease and thus release himself and
his sureties if there be any, from liability for the nonpayment
of future instalments of rent. A forfeiture being for the benefit
of the lessor and not for the benefit of the lessee may be waived
by the lessor alone." So, an assignee of a lessee cannot refuse to
pay rent to the original lessor upon the ground that the lease

39 Co. Litt. 215a; Attoe v. Hem- 165, 36 Atl. Rep. 216; Liggett v.
mings, 2 Bulst. 281; Kidwelly v. Shira, 159 Pa. St. 350, 28 Atl. Rep,
Brand, Plow,- 71, 72; Isherwood v. 218, 33 W. N. Cases, 553; Wills v.
Oldknow. 2 M. & S. 283; Wright Gas Co., 130 Pa. St. 222, 18 Atl.
V. Burroughs, 3 C. B. 685. Rep. 721; Ray v. Gas. Co., 138 Pa.

40 Evans v. Consumers' Gas Co. St. 576, 20 Atl. Rep. 1065; Ogden
(Ind.), 29 N. E. Rep. 398; Ed- v. Hatry, 145 Pa. St. 640, 23 Atl.
monds v. Mounsey, 15 Ind. App. Rep. 334; Phillips v. Vandergrift,
399, 44 N. E. Rep. 196; Chicago 146 Pa. St. 347, 23 Atl. Rep. 347;
Attachment Co. v. Davis Sewing Jones v. Western Pennsylvania
Machine Co. (111.), 25 N. E. Rep. Gas Co., 146 Pa. St. 204, 211, 23
669; Proctor v. Keith, 12 B. Mon. Atl. Rep. 386, 29 W. N. Cases, 266;
(Ky.) 252, 254; Morrison v. Morris v. De Wolf, 11 Tex. Civ.
Smith, 90 Md. 76, 44 Atl. Rep. App. 701, 33 S. W. Rep. 556;
1031; In re Assignment of Dick- Brady v. Nagle (Tex.), 29 S. W.
iuKon Co.: Welch v. Flitterling, 72 Rep. 943.

Minn. 483, 75 N. W. Rep. 731; "English v. Yates, 205 Pa. St.

Creveling v. West End Iron Co., 106, 54 Atl. Rep. 503; Gibson v.

51 N. J. Law, 34, 16 Atl. Rep. 184; Oliver, 158 Pa. St. 277, 27 Atl.

Smith V. Miller, 49 N. J. Law, 521, Rep. 961; Cochran v. Pew, 159 Pa.

13 Atl. Rep. 39; Mathews v. Peo- St. 184, 28 Atl. Rep. 219, 33 W. N.

pie's Nat. Gas. Co., 179 Pa. St. C. 547.
41

G42

LAW OP LANDLORD AND TENANT.

was forfeited and that the assignment to him is void because it
was provided by a stipulation in the lease that it should
not be assigned without the consent of the lessor.*- A pro-
vision that, upon the non-performance of a condition by the les-
see, the lease shall be null and void means only that it shall be
null and void at the election of the lessor. The lessee cannot in-
validate the lease and deprive the lessor of his rights under it
by a default in the performance of a covenant as by a failure to
pay his rent when it is due.*^ So, too, in the case of leases for
mining purposes or to enable the lessee to work land for mineral
oil, where it is provided that the lessee must begin mining or
drilling on or before a certain date and it is also provided that
the term shall be forfeited in case he shall not do so, the lessee
can neither refuse to perform nor escape the consequences of a
default in performing by his failure to begin operation. Under

*2 Chicago Attachment Co. v.
Davis Sewing Machine Co. (111.),
25 N. E. Rep. 669; Dickinson's
Assignment, 72 Minn. 483, 75 N.
W. Rep. 731.

43 Morrison v. Smith, 90 Md. 76,
44 Atl. Rep. 1031; Creveling v.
West End Iron Co., 51 N. J. Law,
34, 16 Atl. Rep. 184 (in which case
the land was on forfeiture to go
to the lessor "as though the lease
had never been made."). See,
also, to same effect, Smith v. Mil-
ler, 49 N. J. Law, 521, 13 Atl. Rep.
39; Leggett v. Shira, 159 Pa. St.
350, 28 Atl. Rep. 218, 33 W. N.
Cases, 553. A clause in a lease
stating that it shall be void on a
breach of a condition by the les-
see means only that it is voidable
at the option of the lessor even
in a case where the condition was
imposed on the lessee by a stat-
ute. Doe V. Bancks, 4 B. & A. 401 ;
Roberts v. Daver, 4 B. & A. 664;
Davenport v. Regina, 47 L. J. P.
0. 8, 3 App. Cases, 115, 37 L. T.
727. In Hartshorne v. Watson, 4
Bing. N. C. 178, there was a provi-
sion that on a failure to pay rent

the lessor was to have possession
again as if the lease had never
been made. In Arnsby v. Wood-
ward, 6 Barn. & C. 519, the lease
provided that on a default in the
payment of the rent, or if any
covenant in the lease should be
broken, the lease was to be void.
Id Rede v. Farr, 6 Maule & S. 121,
the condition was similar. In Doe
v. Banckes, 4 Barn. & Aid. 401, a
proviso in the lease was that if
the lessee should fail to work the
mine demised the lease should be
void. In all these cases the lease
was held to be voidable only at
the option of the lessor, and not
absolutely void upon a breach of
condition. A proviso that on a
certain event the lessor may re-
enter and have the premises "as
if the lease had never been made"
does not render the lease void ab
i7)itio on entry, but only avoids
the lease from the date of entry.
Hartshorne v. Watson, 4 Bing. N.
C. 178, 5 Scott, 506, 6 D. P. C.
404, 1 Arn. 15. 7 L. J. C. P. 138,
2 Jur. 155.

COVENANTS OF THE LEASE.

6i3

such circumstances if it is stipulated that the lessee shaJl pay a
certain fixed monthly rental, the payments to begin on his re-
fusal or failure to begin operations the lessor may waive the for-
feiture and recover the rent which the lessee has agreed to pay.*^
This is time though it is. expressly stipulated in a mining or oil
lease that upon the failure of the lessee to begin operations the
lease shall be "null and void" and also that all rights and obli-
gations thereunder shall cease "with like effect as though the
agreement had never been made. " « The rule seems firmly estab-
lished by all the decisions both in England and America that how-
ever absolute and certain the words of forfeiture may be, even
though they shall expressly declare the lease null and void or at
an end, they will be always construed as meaning that it is void-
able merely and this at the option of the lessor. They will be
considered as having no other object than to enable the lessor to
treat the lease as void or not at his election unless an election to
do this be in express terms given to the lessee as well.^« A su-
rety for the payment of the rent by the lessee cannot defeat
the right of the lessor to recover against him on the failure of
the lessee to pay rent due subsequent to a forfeiture by show-

** Mathews v. People's National
Gas Co., 179 Pa. St. 165, 36 Atl.
Rep. 216.

45 0gden V. Hater, 145 Pa. St.
640, 23 Atl. Rep. 334, following
Wills V. Gas Co., 130 Pa. St. 222,
18 Atl. Rep. 721; Ray v. Gas Co.,
138 Pa. St. 576, 20 Atl. Rep. 1065.
And see, also, Phillips v. Vander-
grift, 146 Pa. St. 357, 23 Atl. Rep.
347. The construction of the pro-
vision that a lease shall be null
and void on the default of the
lessee to perform a covenant in it
cannot be varied by showing the
uniform custom of the parties in
construing other similar provi-
sions. Jones V. V^^estern Pennsyl-
vania Gas Co., 146 Pa. St. 204, 211,
23 Atl. Rep. 286, 29 W. N. Cases,
266.

4-6 "The legal effect of a clause in
a gas or oil lease that "a failure

to complete such well or to pay
such rental shall render this lease
null and void, and it can only be
renewed by mutual consent," is
that the forfeiture is for the ben-
efit of the lessor only and is at
his option. Such an effect can be
changed only by an express stipu-
lation that the lease shall be void-
able at the election of either party
or of the lessee. If a lease is to
become "null and void" it is not
made any more so by a provision
that it "shall be of no effect be-
tween the parties," or "can only
be renewed by mutual consent,"
or other cumulative phrases of
the same meanmg. The legal ef-
fect of such a clause always is
that the forfeiture is for the bene-
fit of the lessor at his option."
Jones v. West. Penn. Gas Co., 146
Pa. St. 204, 211, 23 Atl. Rep. 386.

644

LAW OF LANDLORD AND TENANT.

ing that a forfeiture lias accrued unless lie can also show that
the lessor has enforced the forfeiture by a re-entry and that the
relationship of landlord and tenant and the consequent liability
of the latter for rent has thus been terminated.*^

§ 402. The waiver of a forfeiture by the lessor. The right
of re-entry upon the breach of a condition being clearly for the
benefit of the lessor exclusively may be waived by him.** The

47 Clark V. Jones, 1 Denio (N.
Y.) 516, 43 Am. Dec. 706. A provi-
sion that a lease shall be void on
the occurrence of a certain event
means that it shall be voidable at
the option of the lessor only, and
he may waive the breach. Armsby
V. Woodward, 6 B. & C. 519, 9 D.
& R. 536, 5 L. J. (0. S.) K. B. 199;
Doe d. Nash v. Birch, 1 M. & W.
402, 5 L. J. Ex. 185; Reid v. Par-
sons, 2 Chit. 247; Doe d. Green v.
Baker, 2 Moore, 189, 8 Taunt. 241,
19 R. R. 502.

48Dahm v. Barlow, 93 Ala. 120,
9 So. Rep. 598; Randal v, Tatum,
98 Cal. 390, 33 Pac. Rep. 433, 435;
Willoughby v. Lawrence, 116 111.

II, 22, 4 N. E. Rep. 356; Webster
v. Nichols, 104 111. 160, 172; Sex-
ton V. Chicago Storage Co., 129

III. 318, 21 N. E. Rep. 920, 16 Am.
St. Rep. 274; Chicago Attachment
Co. V. Davis Sewing Machine Co.
(111. 1889), 25 N. E. Rep. 669, af-
firming 33 111. App. 362; Springer
V. Chicago R. E. Loan Co., 202 111.
17, 26, 66 N. E. Rep. 850, affirming
102 111. App. 294; Channel v. Mer-
vifield, 206 111. 279, 283, 69 N. W.
Rep. 32, reversing 106 111. App.
243; Colton v. Gorham, 72 Iowa,
324, 325, 33 N. E. Rep. 76; Reid
V. Weissner & Sons Brewing Co.,
88 Md. 234, 40 Atl. Rep. 877; Mor-
rison V. Smith, 90 Md. 76, 44 Atl.
Rep. 1031; O'Keefe v. Kennedy, 3
Cush. (Mass.) 325; Porter r. Mer-
rill, 124 Mass. 534; Chalmers v.

Smith, 152 Mass. &61, 26 N. E.
Rep. 95; Shattuck v. Lovejoy, 8
Gray (Mass.) 204; Tyler's Estate
V. Gresler, 74 Mo. App. 543; B.
Roth Tool Co. V. Champion Spring
Co., 93 Mo. App. 530, 67 S. W. Rep.
967; Hynes v. Ecker, 34 Mo. App.
650; In re Assignment of Dickin-
son Co., Welch v. Fitterling, 72
Minn. 483, 75 N. W. Rep. 731, 732;
Fleming v. Fleming Hotel Co., 70
N. J. Eq. 509, 61 Atl. Rep. 157;
Heeter v. Eckstein, 50 How. Pr.
(N. Y.) Rep. 445; McMurray v.
Harway, 56 N. Y. 337, 342; Jones
V. Daly, 175 N. Y. 529, 67 N. E. Rep.
1083; Stuyvesant v. Davis, 9 Paige
Ch. (N Y.) 427, 430; Weisbrod v.
Dembowsky, 25 Misc. Rep. 485, 55
N. Y. Supp. 1; Clark v. Greenfield,
34 N. Y. Supp. 1, 13 Misc. Rep.
124; Holman v. De Lin-River Fin-
ley Co., 30 Oreg. 428, 47 Pac. Rep.
708; Garcewich v. Woods, 73 N. Y.
Supp. 154; English v. Yates, 205
Pa. St. 106, 54 Atl. Rep. 503; Gal-
ley V. Kellerman, 123 Pa. St. 491,
16 Atl. Rep. 474; Wills v. Mann.
Natural Gas Co., 130 Pa. St. 222,
18 Atl. Rep. 721, 5 L. R. A. 603;
Ray V. West. Penn. Natural Gas
Co., 138 Pa. St. 076, 20 Atl. Rep.
3 065, 27 W. N. Cases, 230; Ogden
V. Hatry, 145 Pa. St. 640, 23 Atl.
Rep. 334; Jones v. West. Penn.
Nat. Gas Co., 146 Pa. St. 204, 211,
23 Atl. Rep. 386; Phillips v. Van-
dergrift, 146 Pa. St. 347; Leather-
man V. Oliver, 151 Pa. St. 646, 650,

COVENANTS OF THE LEASE.

645

waiver must be entire and relate to all the premises. Tlie land-
lord cannot enforce the forfeiture as to a part of the premises
and waive it as to another part.*^ According to a rule of law
laid down in a case decided in England in the reign of Queen
Elizabeth,^'' where a forfeiture which has been incurred by a
lessee is absolutely waived by the lessor it is gone forever. It
cannot thereafter be enforced by the lessor or any other person.
And though this rule has met with considerable criticism in the
courts, it has usually been strictly adhered to by them and is
still good law in most of the states of the Union at the present
time. So, for example, where a lease which is not assignable
without the written consent of the lessor has been assigned and
the lessor has waived the forfeiture by accepting the assignee
as his tenant he cannot take advantage of a subsequent assign-
ment by this assignee and declare a forfeiture of the lease on
that account.^^ What language or conduct on the part of the

25 Atl. Rep. 309; Westmore, etc..
Natural Gas Co. v. De Witt, 130
Pa. St. 235, 18 Atl. Rep. 724, 5 L.
R. A. 731; Bartley v. Phillips, 179
Pa. St. 175, 36 Atl. Rep. 217;
Granite Building Corporation v.
Greene, 25 R. I. 586, 57 Atl. Rep.
649 ; Wildey Lodge, etc. v. City of
Paris (Tex. Civ. App. 1903), 73
S. W. Rep. 69; Graham v. Wo-
mack, 82 Mo. App. 618; Mack v.
Dailey, 67 Vt. 90, 91; Denton v.
Taylor, 90 Va. 219, 225, 17 S. E.
Rep. 944; Gomber v. Hacket, 6
Wis. 323; Armbsy v. Woodward,
6 Barn. & C. 519; Rede v. Farr, 6
Maule & Sel. 121; Warner v. Coch-
rane, 128 Fed. Rep. 553.

49 Ocean Grove Land Ass'n v.
Berthall, 62 N. J. Law, 88, 40 Atl.
Rep. 779, in which it was said
that the landlord could not select
a portion of the premises, large or
small, as he might see fit, and en-
force a forfeiture by an entry
upon that, leaving the tenant in
possession of the remainder. The
landlord ought to enforce the for-

feiture against the whole of the
demised premises or waive it al-
together.

50 Dumpor's Case, 4 Coke, 119b.

51 Reid v. Weissner & Sons
Brewing Co., 88 Md. 234, 40 Atl.
Rep. 877; Smith v. Clark, 97 Me.
304, 54 Atl. Rep. 758; Chipman v.
Emeric, 5 Cal. 49, 63 Am. Dec. 80;
Pennock v. Lyons, 118 Mass. 92;
Siefke v. Koch, 31 How Pr. (N.
Y.) 383, 384; Dakin v. Williams,
21 Wend. (N. Y.) 457, following
Dumpor's Case, 4 Coke, 119. The
covenant prohibiting an assign-
ment was, as is conceded by and
alleged in the declaration, unqual-
ifiedly waived when the assign-
ment was made by Miller; and
having been thus waived without
the superaddition of a restriction
on subsequent assignments, it was
gone forever, and therefore was
not binding on the brewing com-
pany. This principle was an-
nounced as early as the reign of
Elizabeth in Dumpor's Case.
Later decisions have carried the

646 LAW OF LANDLORD AND TENANT.

lessor will in any particular case constitute a waiver of a for-
feiture will usually depend upon the facts and circumstances
of the case. In all cases where no conflict appears in the proof
of the language or the conduct of the parties, the question is
one of law but where the evidence on these points is conflicting
it is for the jury or the chancellor to determine from all the
facts if there has been a waiver ^- of the forfeiture by the land-
lord. The general rule is that forfeitures in leases are favored
neither in law nor in equity and after a forfeiture has occurred
and has been declared, generally any subsequent act by a party
who is entitled to take advantage of the forfeiture done with a
knowledge of the facts which is inconsistent with an intention
on his part to take advantage of the forfeiture may be taken
in law as a waiver of the forfeiture. ^^

§ 403. The rent received after a forfeiture. The receipt of
rent by the landlord accruing after the breach of covenant or
condition has occurred is a waiver of a forfeiture arising thereby
by reason of the failure of the tenant to pay rent if for any
other reason if the landlord when receiving the rent knew
that a forfeiture had occurred. But the receipt of rent is never
a waiver of a forfeiture where the rent was received by the land-
lord in ignorance that a forfeiture had occurred.'* The money

decision further than is applied low, 93 Ala. 120, 9 So. Rep. 598;
in Dumpor's Case, for it is held Randal v. Tatum, 98 Cal. 390, 33
that whether the license to assign Pac. Rep. 433, 435; Silva v. Camp-
be general, as in Dumpor's Case, bell, 84 Cal. 420, 24 Pac. Rep. 316;
or particular as to one particular Frazier v. Caruthers, 44 111. App.
person, subject to the performance Gl; Robbins v. Conway, 92 111.
of the covenants in the original App. 173; North Chicago St. R.
lease, still the condition is gone Co. v. Le Grand Co., 95 111. App.
in both instances, and the as- 435; Bacon v. Western Furniture
signee may assign without license. Co., 53 Ind. 229, 231; Cleve v.
Brummell v. Macpherson, 14 Ves. Mazzoni, 19 Ky. Law Rep. 2001,
173; Reid v. Weissner & Sons 45 S. W. Rep. 88; Morrison v.
Brewing Co., 88 Md. 234, 40 Atl. Smith, 90 Md. 76, 44 Atl. Rep.
Rep. 877. 1031; Collins v. Canty, 6 Cush.

52 Jones V. Daly, 175 N. Y. 520, (Mass.) 415; Barber v. Stone, 104
67 N. E. Rep. 1083, affirming 76 Mich. 90, G2 N. W. Rep. 139; Garn-
N. Y. Supp. 725, 73 App. Div. 220. hart v. Finney, 40 Mo. 449, 460;

53 Channel v. Merrifield, 106 111. Stover v. Hazelbaker, 42 Neb. 393,
App. 243. 60 N. W. Rep. 597; Jackson v.

54 Brooks V. Rodgers, 99 Ala. Brownson, 7 Johns. (N. Y.) 227,
433, 12 So. Rep. 61; Dahm v. Bar- 235; Lewis v. Ocean Nav. & Pier

COVENANTS OF THE LEASE.

647

paid must be paid as rent. If it is paid by the tenant not as rent
accruing after forfeiture but as damages for detaining or tres
passing on the land, its receipt by the lessor is no waiver.^^ So,
also, distraining for rent which accrues after forfeiture is an ab-
solute waiver of a forfeiture.^^ A waiver takes place where the
tenant after a forfeiture releases to the landlord a portion of
the premises to be credited on account of rent which has accr?ied.

Co., 125 N. Y. 341, affirming 2 N.
Y. Supp. 911; Michel v. O'Brien.
6 Misc. Rep. 408, 27 N. Y. Supp.
173; Koehler v. Brady, 144 N. Y.
135, 38 N. E. Rep. 978, affirming
78 Hun, 443, 29 N. Y. Supp. 388;
Chase v. Knickerbocker Phosphate
Co., 53 N. Y. Supp. 220, 224, 32
App. Div. 400, 87 N. Y. St. Rep.
22a; Mack v Dailey, 67 Vt. 90, 30
Atl. Rep. 686; Pettygrove v. Roths-
child, 2 Wash. St. 6, 25 Pac. Rep.
907; Hukill v. Myers, 36 W. Va.
639, 15 S. E. Rep. 151; Gomber v.
Kackett, 6 Wis. 323, 324; Jacob v.
Down, 69 Law J. Ch. 493, (1900)
2 Ch. 156, 83 Law T. (N. S.) 191,
48 Weeky Rep. 441, 64 J. P. 552;
Roe d. Gregson v. Harrison. 2 T.
R. 425; Mathews v. Whetton, Cro.
Car. 233; Goodright v. Cordwent,
6 T. R. 219; Doe v. Rees, 4 Bing.
(N. C.) 384; Goodright v. Davids,
Cowp. 804; Green's Case, Cro.
Eliz. 3; Doe d. Bryan v. Bancks,
4 B. & Aid. 401, Gow. 220, 23 R.
R. 318; Arnsby v. Woodward, 6
B. & C. 319, 9 D. & R. 536, 5 L. J.
(O. S.) K. B. 199; Walrond v.
Hawkins, 44 L. J. C. P. 116, L. R.
10 C. P. 342, 32 L. T. 119, 23 W.
R. 390; Roe d. Gregson v. Harri-
son, 2 T. R. 425, 1 R. R. 513; Good-
right d. Walter v. Davids, Cowp.
803; Doe d. Cheney v. Batten.
Cowp. 243, 9 East, 314, n, 9 R. R.
570, n.; Hume v. Kent, 1 Ball &
B. 554. The breach of a covenant

against assignment by the lessee
without the consent of the lessor
may be waived by the acceptance
of rent from the assignee. Web-
ster v. Nichols, 104 111. 160; Ran-
dal V. Tatum, 98 Cal. 390, 33 Pac.
Rep. 433, 435; Carpenter v. Pocas-
set Mfg. Co., 180 Mass. 130, 61 N.
E. Rep. 816. Contra, Boardman v.
Davidson, 7 Abb. Prac. (N. S.)
439. The acceptance of a month's
rent from an assignee for the ben-
efit of the creditors of the lessee,
before the assignee has elected
whether he would or would not
accept the term, is not a waiver.
The Medinah Temple Co. v. Cur-
rey, 162 111. 441. 44 N. E. Rep. 839.
Until the assignee has made his
election to accept or refuse the
lease the lessor has the right to
deal with him as to the use of the
property without reference to the
lease. The fact that the lessor
arranged to receive some compen-
sation for the use of the premises
from him without declaring it to
be rent under the lease in no way
proved a waiver of the forfeiture.
The question is one of intention.

55 Goodright d. Charter v. Card-
went, 6 T. R. 219.

5G Pennant's Case, 3 Coke, 64,
64a : Chase v. Knickerbocker Phos-
phate Co., 32 App. Div. 400, 53 N.
Y. Supp. 220, 87 N. Y. St. Rep.
220; Blyth v. Dennett, 13 Com. B.
178, 18L

G48 LAW OF LANDLORD AND TENANT.

It is not material that ^'^ the distraint was unsuccessful in se-
curing payment of the amount of rent due,^^ because sufficient
goods are not found upon the premises.°^ But a distress and
continuing in possession, though it may be a waiver of an exist-
ing forfeiture, is not a waiver of any right which subsequently
accrues to the landlord.^" So, too, an absolute and unqualified
demand for rent subsequently accruing will be a waiver of the
forfeiture,®^ when made by the landlord or his agent duly au-
thorized. Thus, if the landlord gives notice to quit and there-
upon begins an action to cancel the lease as forfeited, his sub-
sequent receipt of subsequent rent will be a waiver of all his
rights to a cancellation of the lease.®^ Nor need the rent be paid
in money in order that its receipt shall be a waiver. The accep-
tance of property or services from the tenant after a forfeiture
has occurred is equally with the payment of rent in money a
waiver of a forfeiture.®^ The rent which is received in order .to
be material as a waiver must be rent which accrues subsequently
to the forfeiture. The receipt of rent which has accrued before
the demand or which has become due before the service of a no-
tice to quit will not operate as a waiver.®* If the rent is payable

5T Brooks V. Rodgers, 99 Ala. 1031; Hukill v. Myers, 36 W. Va.

433, 12 So. Rep. 61. 639, 647, 15 S. W. Rep. 151; Carra-

5B Browning's Case, Plowd. 133. her v. Bell, 7 Wash. 81, 34 Pac.

59 Camp V. Scott, 47 Conn. 366, Rep. 469. "The receipt of rent
371. after a breach of covenant does

60 Doe d. Taylor v. Johnson, 1 not operate as a waiver, unless
Stark. 411, 18 R. R. 791. See, also, the rent received accrued subse-
Zouch d. "Ward v. Willingale, 1 quently to the act which works
H. Bl. 311, 2 R. R. 770; Doe d. the forfeiture." Bleecker v. Smith,
Flower v. Peck, 1 B. & Ad. 428, 9 13 Wend. (N. Y.) 530; Williams
L. J. (O. S.) K. B. 60. V. Vanderbilt, 145 111. 238, 34 N.

61 Camp V. Scott, 47 Conn. 366, E. Rep. 476, 21 L. R. A. 489. This
371; Doe d. Nash v. Birch, 1 Mee. rule is sustained by the weight
& Wei. 402, 408; Blyth v. Dennett, of authority, though there are a
13 C. B. 178, 22 Law .J. C. P. 79. few cases which do not recognize

62 Dahm v. Barlow, 93 Ala. 120, it. See Mack v. Dailey, 67 Vt. 90,
9 So. Rep. 598. 30 Atl. Rep. 686. See, also, as

63 Frazier v. Caruthers, 44 111. sustaining the text, Price v. War-
App. 61. wood, 4 H. & N. 512, 28 L. J. Ex.

64 Silva V. Campbell, 84 Cal. 420, 329, 5 Jur. (N. S.) 472, 7 W. R.
24 Pac. Rep. 316; Robbins v. Con- 506; BrJlSges v. Longman, 24 Beav.
way, 92 111. App. 173; Morrison v. 27, 30.

Smith, 90 Md. 76, 44 Atl. Rep.

COVENANTS OP THE LEASE. 649

in monthly installments in advance, the landlord waives by ac-
cepting rent in advance, his right to insist upon a forfeiture for
a part of the period covered by the payment.^^ Where the con-
duct of the tenant constitutes a continuing ground of forfeiture
the acceptance of rent by the landlord after a forfeiture has
occurred is not a waiver. This would be the case where the de-
fault of the tenant consisted of the use of the premises for a
purpose forbidden by the terms of the lease.*^' Though the re-
ceipt of rent may be a waiver of a forfeiture created in the past
by a failure to pay rent, the tenant is not relieved from paying
rent promptly in the future. The condition or covenant is one
of a continuing nature. The default of the tenant and his re-
fusal to pay after a waiver by the landlord revives the forfeiture
and enables the landlord to recover possession upon a new breach
of the condition." The acceptance of rent by the landlord with
knowledge that a forfeiture had been incurred by the tenant is
a waiver only of such breaches of covenant creating a forfeiture
which have occurred prior to the receipt of the rent and does
not deprive him of his right to declare and enforce a forfeiture
for a breach of condition occurring subsequently where each act
of the tenant constitutes a continuing breach of covenant.*'^ The

65 Barber v. Stone, 104 Mich. breach of condition and all the
90, 92, 93, 62 N. W. Rep. 139. In circumstances, demanded and re-
this case a landlord accepted rent ceived from the lessee, under the
which had accrued for a month contract of the lease, rents which
past and a portion of that which accrued subsequently to the breach,
was payable monthly in advance, this was a clear recognition that
and the court held that by accept- the relation of landlord and ten-
ing a portion of the rent, though ant continued for the time for
for future occupation, after he had which the rent was paid and re-
served a notice of forfeiture, he ceived. A lessor cannot be per-
had waived the forfeiture at least mitted to get the benefit of his
for the period for which rent had contract of lease after breach of
been paid. condition for the purpose of col-
es Mulligan v. HoUingsworth, 99 lecting rents which subsequently
Fed. Rep. 216. accrued, and, after collecting the
GT Gluck V. Elkan, 36 Minn. 80, rents, then hold the lessee to be a
30 N. W. Rep. 446. trespasser on the land during the
68 Granite Building Ass'n v. same period for which he collected
Greene, 25 R. I. 48, 54 Atl. Rep. rents under the contract of lease.
792. "If, after the brtach of the The receipt of the rents under
condition of the lease, the lessor, such circumstances is an affirma-
with a full knowledge of the tion that the contract of lease was

650 LAW OP LANDLORD AND TENANT.

acceptance by a lessor of rent after a breach of a condition will
revive the lease and waive a forfeiture though the lease ex-
pressly declares that it shall become null and void or that the
term shall at once cease and determine. In law the lease is
void but equity will not so regard it. Equity wull not distin-
guish, in determining whether a forfeiture has been waived,
between a lease which is expressly void on a breach of condition
and one which only gives a power of re-entry. For they are
practically the same except that in the former the consequences
of an entry for a breach of condition precedes the provision
for a re-entry while in the latter the consequences are not men-
tioned but obviously result from the re-entry.*'^

§ 404. The payment of the rent to a landlord after an action
of ejectment or other action by a landlord for the possession.
The action of the landlord in bringing ejectment or similar pro-
ceedings to recover possession against his tenant for a forfeiture
is in its effect an election on the part of the landlord to treat
the lease as void. Thereafter the lease is void and cannot be
revived by any action of the parties though a new lease can of
course be made. The beginning of an action of ejectment is
equivalent in theory and is a substitute in modem times at least
for an actual physical entry by the landlord on the land and
his actual ouster of the tenant and is in law operative in every
respect as a surrender of the lease. '° It follows from this rule
that the receipt of rent by the landlord from the tenant after
an action of ejectment has been begun cannot be pleaded by the
tenant as & waiver by the landlord of his right to enforce the for-
feiture and as a defense in the action of ejectment. The accept-
still in force and subsisting up to man, J., in Brooks v. Rodgers, 9&
the time for which rent was col- Ala. 433, 12 So. Rep. 61.
Ifccted, and that the lessee was not 69 Rede v. Farr, 6 M. & S. 121;

a trespasser during that time for Bowser v. Colby, 1 Hare, 109, 11
which he paid rent. If the lessor L. J. Ch. 132, 5 Jur. 1106; Arnsby
receives rent only for the time v. Woodward, 6 Bar. & Ores. 519.
prior to the breach of the condi- '?o Whether the commencement

tion, and if the rent is received of an action by the lessor to re-
without notice or knowledge of cover the possession on a breach
the breach, payment under such of a covenant will, without actual
circumstances will not be a waiver entry, determine the lease, see
of his right to elect to declare the Dyke, Ex parte Morrish, in re, 22
estate of the lessee forfeited and Ch. D. 410, 48 L. T, 303.
of the right to re-enter." By Cole-

CO\^NANTS OF THE LEASE. 651

ance of rent by the landlord after he has begun an action of
ejectment to enforce a forfeiture is not a waiver of the forfei-
ture/^ though the rent had accrued prior to the forfeiture. The
conduct of the landlord in bringing- ejectment is from the ten-
ant's point of view an eviction and from the landlord's point
of view the acceptance of a surrender. And a landlord who
has brought an action of ejectment against his tenant for a
forfeiture does not waive the forfeiture by subsequently thereto
distraining for the rent'- which was due when the forfeiture
was incurred. So, also, if after the ejectment has been com-
menced the parties shall actually make a new lease, or shall enter
into an agreement to make a new lease, whether upon the terms
of the old lease or otherwise and rent is paid under such circum-
stances, it is a good defense for the tenant not as a waiver of
the landlord's rights but as showing him in legal possession un-
der a new arrangement.^^ These rules which are applicable to
the common law action of ejectment are also applicable to the va-
rious actions and proceedings which have been created by statute
to enable the landlord to regain the possession of the premises
on the tenant's default. The acceptance of rent by the land-
lord after the rendition of a judgment in his favor in a posses-
sory action is not a waiver of a forfeiture though the rent paid
was due prior to the commencement of the action.'* Where the
landlord has had judgment awarded him in a possessory action
from which the tenant has appealed and given a bond to stay
execution upon condition that he pay the rent during his occu-
pancy, the receipt of the rent by the landlord after the judg-

■1 Doe d. Marecraft v. Meux, 1 text that the service by a lessor

Car. & P. 346, 7 D. & R. 98, 4 B. & upon the lessee of a declaration in

C. 606, 4 L. J. (O. S.) K. B. 4, 28 ejectment for a forfeiture operates

R. R. 426; Jones v. Carter, 15 Mee. as a final election by the lessor to

& Wei. 718; Grimwood v. Moss, 27 terminate the lease and he cannot

L. T. 268, L. R. 7 C. P. 360; Tole- thereafter, though there has been

man v. Portbury, 24 L. T. 24, L. R. no judgment in the ejectment, sue

6 Q. B. 245. for rent subsequently accruing or

72 Grimwood v. Moss, 41 L. J. C. on covenants broken after the dec-
P. 239. L. R. 7 C. P. 360, 27 L. T. laration. Jones v. Carter, 15 M.
268, 20 W. R. 972. & w. 718.

73 Evans v. Wyatt, 43 L. T. 176, -* Carter Publishing Co. v. Den-
44 J. P. 767, citing Marecroft v. nett, 11 S. D. 956, 78 N. W. Rep.
Meux, 4 B. & C. 606, 7 D. & R. 98. 956.

It follows from the rule of the

652 LAW OF LANDLORD AND TENANT.

meut is not of course a waiver of any rights to which the land-
lord may be entitled." The same rule applies to the receipt of
rent from a tenant who has appealed from a judgment of resti-
tution when the rent is paid after the appeal has been decided
against the tenant.'*' And where a tenant, after a possessory
action has been decided against him, appeals and for any reason
is granted a stay upon condition that he shall pay rent, the ac-
ceptance of the rent subsequently accruing is never a waiver of
a forfeiture. In all such cases if the tenant remains in posses-
sion the court may apply the payments of rent to the debt due
before the action was begun, as the acceptance of rent is purely
a matter of favor in the absence of evidence that the tenant ia
paying for his present use and occupation of the premises.'''^
Under such circumstances, the payment of the rent is made by
reason of the undertaking given by the tenant or it is made by
order of the court, and the lessor has no option except to take it
or let it remain in court and if he does the latter it will remain
as his property. So, the occupation by the tenant is not by the
will of the landlord but it is against his consent. The occupation
is not to be referred to the lease but to the situation created by the
appeal and the undertaking given to stay the execution. Thus
the payment and the receipt of rent pending the appeal are re-
ferable to the situation and not to the will of the landlord. The
law does not and cannot intend the absurd conclusion that the
landlord must forego all rents during the pendency of the ap-
peal while the tenant is in possession under penalty of forfeiting
all his rights in the action.'^^ Inasmuch as the receipt of rent by
the landlord is construed to be a waiver of a forfeiture because
it evinces his intention that the tenant shall remain in possession
and as the landlord cannot at the same time treat the lease as
valid by receiving rent under it and invalid by ousting the ten-
ant it follows that the waiver must always be the result of a
choice by the landlord. If there is no choice or option to receive
or to refuse the rent, there is no waiver by the landlord receiving
the rent. It follows from those iniles and principles that the

TO Palmer v. City Livery Co., 98 tt Chiera v. McDonald, 121 Mich.

Wis. 33, 73 N. W. Rep. 559. 54, 79 N. W. Rep. 908.

76 Hopkins v. Holland, 84 Md. 78 Palmer v. The City Livery

84, 35 Atl. Rep. 11. Co., 98 Wis. 33, 35, 73 N. W. Rep.

559.

COVENANTS OP THE LEASE. 653

institution of an action of ejectment or similar possessory
action by the landlord should not alone prevent him from main-
taining an action for rent subsequently accruing, or, at least
for the reasonable value of the use and occupation, where a
tenant is permitted to remain in the possession by the order of
the court. In some states the matter is regulated by the local
statutes which should invariably be consulted.

§ 405. A waiver may be implied from other facts than the
acceptance of the rent. Any action on the part of the landlord
in dealing with the property demised after a forfeiture has oc-
curred from which it may fairly be implied that it is his inten-
tion to permit the relationship of landlord and tenant to continue
will be considered by the courts, especially the court of equity,
as a waiver. The landlord may waive his right of entry by
making a new lease with the tenant with a full knowledge of
the tenant's default." So, too, if after a forfeiture has occurred
and the landlord has begun an action to oust the tenant, he sues
for the rent asserting in his pleading in the second action that
the d>efendant is still his tenant, he waives the benefit of the
forfeiture.^'' The silence of the landlord when the tenant offers
to pay the rent which is past due by crediting it on a note pay-
able by the landlord, and which was in the ownership and pos-
session of the tenant is a waiver of the forfeiture. In this case
the note was larger in amount than the rent and was not due.
The failure of the landlord to object to this mode of paying the
rent will estop him from subsequently asserting a forfeiture for
the tenant had a right to infer, from the failure of the landlord
to object, that his proposition was satisfactory to the landlord.
The latter might have objected because the tender was not in
cash, or because the note was not yet due, but he had no right
to give the tenant the impression that he would receive the rent
in this manner and then insist on a forfeiture.^^ The circum-
stance that a lessor either by his silence or conduct leads or in-
duces his lessee to believe that he will not hold the lessee to a
prompt and strict performance of the covenant to pay the rent,
will appeal to the conscience of the court of equity. He may

'8 Felton V. Strong, 37 111. App. si Johnson v. Douglass, 73 Mo.

58. 168, 171,

80 Nagel V. League, 70 Mo. App.
487.

654 LAW OF LANDLORD AND TENANT.

therefore with fairness be subsequently denied the right to en-
force a forfeiture which is based on a breach of covenant which
he has been himself instrumental in producing.^- In determin-
ing whether an election has been made between enforcing
and waiving a forfeiture the cases hold that where there has
been a forfeiture and there has been an election to enter or not,
if the landlord either by word or by act determines that the
lease shall continue in existence and he communicates that de-
termination to the tenant, he has in fact elected that the tenant
shall continue to be such and that the tenancy shall continue.
And having elected he cannot retrace his steps. ^^ What con-
duct by a landlord aside from the receipt of rent shall constitute
a waiver of a forfeiture depends on the circumstances of each
case. A notice to quit served on a specific breach of one cove-
nant or condition is a waiver of every other brea>ch of covenant
or condition which has occurred prior to the service of the no-
tice to quit.** So, also, an oral consent that the tenant shall
make alterations is a waiver of a forfeiture incurred by making
repairs and alterations withoiut the written consent of the land-
lord.^^ And the consent of the lessor given to the assignment of
a written, lease is a waiver of a forfeiture which is based upon
the assignor's breach of a covenant to use the premises for a
particular purpose and in a particular manner.^^ So, as a
general rule after knowledge has come to the landlord that a
lease has been assigned by the tenant in breach of a covenant not
to assign without his consent, if he shall conduct a correspond-
ence with the assignee and treat him as his tenant, he will be
regarded as having waived the forfeiture attached to the cove-
nant not to assign without consent. Under such circumstances
the failure of the landlord to object to the assignment in time
and his silence until the lessee relying upon his silence has lost
his rights under the lease, will thereafter estop the landlord to
deny he has assented to the assignment or that he has waived
his right to re-enter.^^ And as a general proposition, any act

82Thropp V. Field, 26 N. J, Eq. 85 Moses v. Loomis, 156 111. 392,

82, 84. 40 N. E. Rep. 952.

83 Ward V. Day, 4 Best & Smith, se Deaton v. Taylor, 90 Va. 219,
3?7; Green's Case, Cro. Eliz. 3. 17 S. E. Rep. 944.

84 Brooks V. Rodgers, 99 Ala. 87 Warner v. Cochrane, 128 Fed.
433, 12 So. Rep. 61. Rep. 553.

COVENANTS OF THE LEASE. 655

on the part of the landlord whieh will constitute a waiver o'l a
forfeiture incurred by reason of the non-payment of rent will
effect a waiver of a forfeiture caused for any other reason. In
all such cases the fact that the lease under a clause of which
the forfeiture was incurred is in writing and under seal is not
material though the waiver is implied from the circumstances
only. The waiver is based on an estoppel arising from the con-
duct or language of the landlord.^

§ 406. When the payment of subsequent rent does not waive
a forfeiture. Under particular circumstances the acceptance
of subsequently accrued rent by the landlord after a forfeiture
has been incurred may not be a waiver of the forfeiture. The
parties may stipulate when the rent is received that its accept-
ance by the landlord sJiall be without prejudice to his right to
declare a prior forfeiture. And the receipt of rent by the land-
lord accompanied by an express agreement that no breach of
covenant or condition is w^aived thereby in no way affects the
right of the landlord to enter for a prior forfeiture.^* There
must, however, be an express agreement between the parties to
the lease that the subsequent payment of the rent shall not
operate as a waiver of the forfeiture. AVhen money is paid and
received as rent a mere protest by the landlord that it is ac-
cepted conditionally and without prejudice to his right to insist
upon a prior forfeiture cannot countervail the effect of such re-
ceipt of the rent by the landlord.*^** The tenant has an absolute
right to say in making a payment to his landlord in what char-
acter he pays or offers to pay the money. If he states in making
a payment that he is paying rent, the landlord must either re-
fuse to accept the money absolutely or he must accept it in the
character in which it is offered to him. His mere statement that
he does not accept the money as rent will not deprive the money
of the character which has been affixed to it by the tenant.
Where, after several forfeitures had occurred and the lessee
tendered rent which the lessor refused to take except on the
terms that it should be taken not as rent but for use and occu-
pation subsequent to the forfeiture to which condition the lessee

88 Moses V. Loomis, 156 111. 392, oo Davenport v. Reg., 47 L. J.
395, 40 N. E. Rep. 952. P. C. 8, 3 App. Cases, 115, 37 L. T.

89 Miller v. Prescott, 163 Mass. 727; Strong v. Stringer, 61 L. T.
12, 13, 39 N. E. Rep. 409. 470.

656 LiAW OF l»a.ndijOrd and tenant.

refused to accede whereupon the lessor took the money declaring-
he would and did not take it as rent, the court held there was a
waiver. For in law and under such circumstances the nature
of the payment of money must be determined according to the
intent of the person paying it and if the landlord accept the
money no protest on his part can operate to prevent the legal
effect of the pa^Tnent of money as rent on the part of the les-
see.°^ On the other hand, the tenant cannot, by paying a part
of the rent which was due, compel the landlord to waive a for-
feiture by stating that the acceptance by the landlord of ther
sum which has been paid shall operate as a waiver of a forfei-
ture. The acceptance of the whole sum due as rent will be in
law a waiver but this effect will not arise from partial pay-
"ment without the consent of the landlord. But the declaration
by the tenant that money is paid as rent must be unequivocal
and must be brought to the personal knowledge of the landlord.
The tenant in default for non-payment of the rent for several
months cannot, by sending a check to his landlord for one
month's rent, upon which words are noted in a very abbreviated
form stating that the check is in payment of rent to the day of
its date and of its mailing, procure a waiver of the forfeiture
though the check is received and deposited by the agent of the
landlord in the usual course of business.®^

§ 407. Waiver by silence and delay. Whether a landlord
has or has not waived a forfeiture is purely a question of his
intention. Usually his intention is to be inferred from his ac-
tions and where circumstances occur which entitle a landlord to
take advantage of a forfeiture and he does acts which show he
means to waive the forfeiture the landlord cannot take advan-
tage of the forfeiture though his acts were illegal or were such
as he was not entitled to do. Thus the levy of a distress may
under some circumstances be a waiver of a forfeiture though
the distress was illegal."^ Generally where it is covenanted that
the term shall become "null and void" at the option of the les-
sor on a breach of the condition, he must usually do some act

81 Croft V. Lumley, 5 El. & Bl. gage & Trust Co. (Neb.), 96 N. W.
G48, 25 L. J. Q. B. 223, 2 Jur. (N. Rep. 1051.
S.) 275, 4 W. R. 357. »•■' Ward v. Day, 5 B. & S. 359, 33

u^ Cochran v Philadelphia Mort- L. J. Q. B. 254, 10 L.. T. 578, 12

W. R. 829.

COVENANTS OF THE LEASE. 657

declaring or e^aiming the forfeiture.®* Such a covenant means
only that the lease is voidable at the option of the lessor and not
that it is absolutely void. Mere delay to a«t or silent acquies-
cense upon the part of the landlord, even after he has knowledge
of an act or failure to act on the part of the tenant which would
give him the right to declare a forfeiture will hardly, taken
alone, constitute a waiver of the right of the landlord to re-
enter.^^ It is a question of fact. The extent of the delay which
will operate as a forfeiture is a question for the chancellor to
determine. In determining this a court of equity will consider
the circumstances of each case. A delaj^ of twenty-three days
in declaring a lease forfeited for the non-payment of rent has
been held not to be a waiver.®" A long delay by the lessor in
asserting his rights particularly if the rights of third persons
have intervened may be sufficient in equity to constitute a
waiver of a forfeiture.®' Thus the delay of a lessor for five
months after a failure on the part of the lessee to pay rent of a
farm, without any intimation that he would enforce a forfeiture,
the lessee cultivating the farm in the meantime according to his
agreement under the lease may be shown to prove a waiver but
this is not conclusive unless the tenant can show all the legal ele-
ments of an estoppel.®^ But delay to enforce a forfeiture in
connection with conduct on his part suggestive of an intention
by the landlord to waive the forfeiture may particularly where
the rights of third parties have attached, constitute a waiver.
If the conduct of the landlord towards the tenant in regard to
the use which the latter makes of the premises or as regards any
action which the tenant is bound to perform, under the lease to
prevent a forfeiture is of such a character as to induce a cautious
and reasonable man to infer that the landlord is satisfied that
the tenant is fulfilling his covenants and conditions, a forfeiture
will be waived thereby.®® Thus a mere standing by of the land-
lord and seeing a tenant making alterations which are in breacn

94 Walker v. Engler, 30 Mo. 130. se Williams v. Vanderbilt, 145

95 Lindsey v. Lindsey, 45 Ind. 111. 238, 34 N. E. Rep. 476.
552,567; Island Coal Co. v. Combs, 97 Drake v. Lacoe, 157 Pa. St.
152 Ind. 379, 391, 53 N. E. Rep. 17, 27 Atl. Rep. 538.

452; Jackson v. Crysler, 1 John. ss Morrison v. Smith, 90 Md. 76,

Cas. (N. Y.) 125, 127; Cochran v. 44 Atl. Rep. 1031.

Philadelphia, etc., Co. (Neb. 1905), 99 Doe d. Knight v. Rowe, 2 Car.

96 N. W. Rep. 1051, 1053. & P. 240, R. & M. 343.

//

42

658 LAW OF LANDLORD AND TENANT.

of his covenant is not a waiver.^ But it has also t)een held that
for the landlord to permit a tenant to remain in possession and
to expend his money in building, after an eviction by the land-
lord for non-payment of rent, is a waiver of a forfeiture.^ A
landlord does not waive a forfeiture by a mere acquiescence in
a continuing breach of a condition, as for example, in case of
a breach of a covenant not to use the premises for a particular
trade.^ A forfeiture arising from the tenant's failure to build
houses on the land demised within a period which is specified
in the lease is no^t waived by the landlord permitting the tenant
to employ workmen to complete the houses for a short time after
the forfeiture has occurred.* A landlord who after a forfeiture
comes to his loiowledge advises a stranger to purchase the ten-
ant's interest in the lease is estopped thereby to enforce a forfei-
ture caused by the tenant against the stranger after the laitter
has purchased the tenant's interest relying on the advice of the
landlord."^ The rights of an innocent third party who has parted
with value in reliance on the landlord's statements cannot be
prejudiced by conduct or language of the lessor in such an un-
fair manner.® Where a person has leased the use of water from
a canal owned by the state, the failure of the lessor to collect
rent or declare a forfeiture for non-payment of rent does not
prevent the lessee from continuing the use of the water until he
is evicted. Under such circumstances the state may by delay
lose its right to enforce a forfeiture which has been created by a
failure to pay rent particularly where the delay of the state to
collect the rent has continued for very many years and property
rights of third persons have attached to the use of the water be-
cause af a belief that the lessee's rights are unimpaired,^ An

1 Perry v. Davis, 3 C. B. (N. S.) may waive a forfeiture by affirm-

769. ing the continuance of an estate

* Hume V. Kent, 1 Ball. & B. after a condition broken, but these
554. are acts done by the grantor or

« Doe d. Sheppard v. Allen, 3 lessor after a forfeiture accrued

Taunt. 78, 12 R. R. 579. and for his benefit. No parol as-

* Doe d. Kensington v. Brindley, sent will amount to such a waiver."
12 Moore, 37, 5 L. J. (O. S.) C. .Jackson v. Crysler, 1 Johns. Ca.
P. 3. (N. Y.) 125, 127.

B Doe d. Sore v. Eykins, 1 Car. 7 People v. Freeman, 110 App.

& P. 154, R. & M. 29. Div. 605, 97 N. Y. S. 343.

0 "In some cases particular acts

COVEN-VNTS OF THE LEASE. 659

entry by the landlord for a forfeiture by a breach of any spe-
cially designated condition is a waiver of his right to enter for a
breach of any other condition of which he has knowledge when
he enters.*

§ 408. The waiver of a continuous breach, of a condition.
The rule that the acceptance of rent by a landlord waives a for-
feiture does not apply to rent which is accepted during a con-
tinuous breach of a covenant. The reason of this is that though
the receipt of rent may be a waiver of a past forfeiture, it does
not and cannot waive that which is in the future, and, where the
breach of the covenant or the condition is continuo-us, new
breaches are occurring daily, and on these the prior payment of
rent will have no effect. Hence it is a general rule that the
acceptance of rent accruing after a breach of condition where
the condition was of a continuing nature waives a forfeiture only
as to past breaches of such condition. It does not preclude the
landlord from taking advantage of a forfeiture resulting from
a subsequent breach of the same condition.^ Thus an action of
ejectment may be supported in respect to a continuing breach
of a covenant against the using of rooms for a prohibited pur-
pose though the rent has been accepted with a knowledge of
the original breach.^" In other words, the fact that a landlord
receives rent with the knowledge that his tenant has begun to

* "An entry made for other able to point out, and upon which

breaches of condition and without the lessor did not in fact exercise

knowledge of this breach cannot its option." Boston El. R. Y. Cow.

be regarded as an exercise by the v. Grace & Hyde, 112 Fed. Rep.

lessor of the option to take ad- 279, p. 286.

rantage of this breach. The entry » Gluck v. Elkan, 36 Minn. 80,

in this case was, upon the evi- 81, 30 N. W. Rep. 446; Block v.

dence, manifestly for breach of Ebner, 54 Ind. 544; Farwell v.

the condition requiring a continu- Easton, 63 Mo. 446; Doe v. Glad-

ous exhibition, while the order win, 6 Q. B. 953, 51 E. C. L. 953;

permitted. There was no evi- Doe v. Woodbridge, 9 Barn. & C.

dence tending to show an exercise 376.

by the lessor of the option to take lo Doe d. Ambler v. Woodbridge,

advantage of a breach of the con- 1 M. & Ry. 376. 7 L. J. (O. S.) K.

dition against subletting. The B. 263, 28 R. R. 426; Doe d. Baker

lessor after entry, however, en- v. Jones, » Ex. 498, 19 L. J. Ex.

tered for other reasons, and should 405; Doe d. Muston v. Gladwin, 6

not be permitted to mend its hold Q. B. 953, 14 L. J. Q. B. 189, 9 Jur.

by assigning other breaches which 508.
the ingenuity of counsel may be

€60 LAW OF LANDLORD AND TENANT.

use the premises for a purpose prohibited by the lease and that
he has continued to use them for that purpose down to the time'
the landlord receives the rent does not prevent the landlord from
subsquently Dusting him if subsequently he persists in the foi'-
bidden use. This doctrine, however, must be taken with some
qualifications. In reference to a waiver by the landlord of a
continuing breach there may be a distinction made between a
case of something which is to be done by the tenant and which
remains undone by him and the doing of which may with reason
be postponed and a case of something which the tenant is for-
bidden to do by the lease and which he does and continues to
do. A good example of this distinction may be seen in the case
of a breach by the lessor of a covenant to rep;\ir on the one
hand and the breach by the tenant of a covenant by him to use
the premises for a particular purpose on the other. Of neces-
sity there ought to be a distinction for the reason that otherwise
the landlord may be afforded an almost unlimited opportunity
to take advantage of his tenant. Thus, in the case of a covenant
bj the tenant not to use the premises for a particular purpose,
the landlord might, with a full knowledge that the thing had
been done which the tenant was forbidden to do and upon the
doing of which a forfeiture was to accrue, continue to receive
rent so long as it suited his purpose and then when it suited
him to oust the tenant, turn him out at a period when the ten-
ant 's possession was most valuable to him. This course of action
the landlord should not be permitted to follow upon his
contention that this use of premises by the tenant works a con-
tinuing forfeiture of which the receipt of rent is not a waiver.
The case of a forfeiture because of the tenant's failure to re-
pair generally during the terra, is on a different basis. No one
can say at what exact moment repairs are necessary. The ten-
ant must have a reasonable time to make them and ordinarily
he may make them at any time during the term before a for-
feiture is declared and thus preserve his term. Hence it is not
at all unfair to call such a breach a continuous one and to per-
mit a landlord to enfo.rce it though he may have received rent
during the time the premises were out of repair.^^ "Whether a
breach is or is not a continuous breach depends upon the nature

11 Griffin v. Tomkins, 42 L. T. 359, 44 J. P. 457.

COVENANTS OP THE LEASE. 661

of the covenant and particularly upon the language used by the
parties in framing it. Thus, to illustrate the breach of a cove-
nant by the tenant to erect certain buildings within a fixed time
is not a continuing breach and hence may be waived by the land-
lord subsequently receiving rent.^- This is true also of a cove-
nant "forthwith" to put the premises into good and tenantable
repair.^^ But where the tenant covenants that he will build cer-
tain houses on the property and also that he will keep the prem-
ises so to be erected at all times in good repair, it was held that
th^ covenant to repair bound the tenant to erect the buildings
within the period prescribed and that if he failed to do this the
breach of the covenant would be a continuing breach.^*

§ 409. A forfeiture caused by a breach of a covenant to re-
pair. What conduct on the part of the landlord shall amount
to a waiver of a breach of a covenant or condition to repair de-
pends usually on the facts of each case and particularly on the
language of the covenant to repair. A failure to repair under
a general covenant to repair or to keep in repair which means
during the whole term, is a continuing breach and the delay of
the landlord in enforcing a forfeiture which is occasioned there-
by or his making some repairs himself is not usually a waiver
of a forfeiture for the covenant is continuously broken eyery
day the premises are left in bad repair or condition by the ten-

12 Jacob V. Down, 69 L. J. Ch. repairs them, then the receipt of
493, (1900) 2 Ch. 156, 83 L. T. rent waives the previous forfeit-
191, 48 W. R. 441, 64 J. P. 552. ure. But where the matter is

13 Coward v. Gregory, 15 L. T. plainly a continuing breach, the
Rep. 279, L. Rep. 2 C. P. 153. only question is whether when the

14 Jacob V. Down, 69 L. J. Ch. party seeks to enter, the prem-
493; (1900) 2 Ch. 156, S3 L. T. ises have been an unreasonable
191, 48 W. R. 441, 64 J. P. 552. In time out of repair and so con-
Doe d. Baker v. Jones, 5 Exch. tinue." A landlord who has a
498, on page 504, Alderson, B., right of re-entry on the breach of
says: "The receipt of rent is a a covenant not to underlet, does
waiver of all forfeitures, which not by waiving his re-entry on one
are, so to speak, single and com- underletting lose his right to re-
plete, and are not in the nature enter on a subsequent underlet-
of continuing forfeitures. So with ting. Nor, by waiving his right
respect to continuing forfeiture, to re-enter on a breach of a cove-
where the lessee is bound from nant to rei)air, does he waive his
time to time to keep the premises right to reenter on subsequent
in repair, and he omits for an un- want of repairs. Doe d. Boscawen
reasonable time, but afterwards v. Bliss, 4 Taunt. 735.

662 LAW OP LANDLORD AND TENANT.

ant. Thus the action of the landlord allowmg a tenant a little
further time to repair after he is in default after a notice by
his landlord to repair does not waive a forfeiture/" which was
created by the tenant's failure to repair on the notice given him
by his landlord. But a landlord after extending his tenant's
time to repair cannot subsequently disregard the extension he
has given him and begin proceedings to procure the benefit of
the forfeiture until the period of the extension has elapsed.
Thus, a landlord who, finding the premises out of repair, gives
his tenant three months' notice to repair cannot maintain
an action of ejectment for a breach by the tenant of a cove-
nant to repair on such notice until the three mouths' notice
is up.^^ And the giving of such a notice to repair is equiva-
Icait to a waiver of a forfeiture incurred by the tenant by his
breach of a general covenant to repair without notice. A
landlord cannot enforce a forfeiture and, at the same time, make
the repairs and recover their value from the tenant. If he, when
premises are permitted by the tenant to remain out of repair
shall enter therein and make the repairs and then sue the ten-
ant for the costs of the repairs he waives a forfeiture created by
the lease on the failure of the tenant to keep in good repair.^^
Generally a demand for rent while the premises are in bad re-
pair does not waive a forfeiture based on their condition for the
reason that a breach of a covenant to repair is a continuous
breach of covenant. A forfeiture which has accrued under a
covenant to repair is not waived by the landlord suing for rent
after he has notified the tenant to repair which the tenant has
declined to do.^^ So, even the payment of the rent by the ten-
ant during the period the premises are in a state of bad repair
does not constitute a waiver by the landlord of his right to en-
force a forfeiture. "Where compensation can readily be made to
a landlord whose tenant has forfeited his estate by a breach of
his covenant to repair a Court of Equity will readily grant re-
lief. In some cases relief will be granted where the tenant has

15 Doe d. Rankin v. Brindley, 1 I'Doe d. Rutzen v. Lewis, 5 A.
N. & M. 1, 4 B. & Ad. 84, 2 L. J. & E. 277, 289, 6 N. & M. 764, 2
K. B. 7. ' H. & W. 162, 5 L. J. K. B. 217.

16 Doe d. Morecraft v. Meux, 7 is Penton v. Barnett, 67 L. J.
D. & R. 98, 4 B. & C. 606, 1 Car. Q. B. 11, 46 W. R. 33.

& P. 346, 4 L. J. (0. S.) K. B. 4,
28 R. R. 426.

COVENANTS OF THE LEASE. 663

not been the victim of accident or mistake and where his omis-
sion to repair was entirely voluntary.^^ This rule however is not
without an exception and, in one case, the court refused to
recognize even an accidental neglect to perform a covenant to
repair, as an excuse.^" A proviso for re-entry if a lessee "shall
do or cause to be done any act, matter, or thing contrary to and
in breach of any of the covenants," does not apply to a breach
of a covenant to repair, the omission to repair not being an act
done.-^

§ 410, The effect of a tender of rent. The tender of the rent
on the day when it is due at any time during the day down to
sunset will prevent a forfeiture. The tender of the rent within
a reasonable time after it is due will, in equity, if the rent is re-
fused also prevent a forfeiture.^^ A tender may be valid and
effective even though it is made after an action to enforce a for-
feiture has been begun. Even a court of common law may, and
usually will stay proceedings begun and pending in it on the
part of the landlord in such an action where the non-payment
of rent was due to accident or mistake on the part of the tenant
upon his paying into court the amount of the rent with interest
and costs to the date of payment.^^ So a forfeiture may be
avoided by the tenant tendering and paying into court the
amount of the rent in an action to recover the rent and also
the possession of the premises and the action for the possession
will thereupon be dismissed.^* But where a judgment of restitu-

19 Hannam v. South London Wa- Lewis v. City of St. Louis, 69 Mo.
terworks Co., 2 Mer. 65; Hill v. 695, affirming 3 Mo. App. 582;
Barclay, 16 Ves. 402, 18 Ves. 56, Jones v. Reed, 15 N. H. 68; Hor-
11 R. R. 147; Sanders v. Pope, 12 ton v. New York Central & H. R.
Ves. 282; Hack v. Leonard, 9 Mod. R. Co., 12 Abb. N. C. (N. Y.) 30;
91. But see 19 Ves. 141. Planters' Ins. Co. v. Diggs, 8 Baxt.

20 Gregory v. Wilson, 9 Hare, (Tenn.) 563; North Chicago St.
683, 16 Jur. 304. R. Co. v. Le Grand Co., 95 111. App.

21 Doe d. Abdy v. Stevens, 3 B. 435. See as to tender after notice
& Ad. 299, 1 L. J. K. B. 101. to quit, Dakota Hot Springs Co.

22Chapman V. Kirby, 49 111. 211; v. Young, 9 S. D. 577, 70 N. W.

Burnes v. McCubbin, 3 Kan. 221, Rep. 842.

87 Am. Dec. 468; Hodgkins v. 23 Atkins v. Chilson, 11 Met.

Price, 137 Mass. 13; Tuttle v. (Mass.) 2.

Bean, 13 Met. (Mass.) 275; City 24 Nagel v. League, 70 Mo. App.

of Carondelet v. Wolfert, 39 Mo. 490.
305; Holmes v. Ginon, 44 Mo. 164;

664 LAW OP LANDLORD AND TENANT.

tion has been rendered in favor of the landlord the tenant can-
not, by taking an appeal, making a tender of rent and paying
the money into court while the appeal is pending escape the pen-
alty of the judgment of restitution.-^

§ 411. Relief against forfeiture at common law. A court
of law may in modern times at least as well as a court of equity
relieve against a forfeiture which has been incurred by the ten-
ant by the non-payment of the rent by him. Both in England
and in the United States the common law courts have for a long
period thougl to a limited extent recognized and admitted equi-
table defenses without turning the party over to a court of
equity and at the present time their inclination and power to re-
ceive equitable defenses are unquestionably greater than they
have ever been. But the courts of law will not usually apply
or enforce equitable remedies though they may receive and con-
sider equitable defenses. In the case of the forfeiture of a lease
the court of law cannot enjoin the lessor from making an actual
entry or from prosecuting ejectment or other action to oust the
tenant or otherwise to enforce the forfeiture. What it cannot
do directly however it may do indirectly. It may prevent a
lessor from enforcing a forfeiture for the non-payment of rent
by an ejectment by compelling him to receive the rent which,
is due him, on penalty of having his action dismissed when the
tenant makes a proper tender. Thus in an action of ejectment for
non-payment of rent a court of common law, on the payment
into court by the lessee of the rent which is due with all costs
and interest, will stay all proceedings and will require the plain-
tiff to accept the money paid in and permit the tenant to re-
main.^® And a waiver of a forfeiture is a good defense both at
law and in equity.^^

25 Walter Commission Co. v. Gil- clear proof of the circumstances

leland, 98 Mo. App. 584, 73 S. W. and show he is entitled to make

Rep. 295, 296. such a declaration. A forfeiture

20 Atkins v. Chilson, 11 Met. is a harsh and usually an unfair

(Mass.) 112, 119; Archer v. Snapp, way of terminating a contract and

Andr. 341. not infrequently works great

27 Bridges v. Ijongman, 24 Beav. hardships. Hence, he who insists

27, 30. "Forfeitures are not re- upon making a declaration of a

garded by the courts with any forfeiture, cannot complain if he

special favor. The party who in- is held to walk strictly within the

sists upon a forfeiture must make limits of the authority which gives

COVENANTS OF THE LEASE. 665

§ 412. Equitable relief against forfeiture. The common law
rules regulating forfeitures are based largely upon the principles
of the feudal system and, for this reason they very early
came to be regarded as inapplicable to the social and commercial
conditions of the times. Consequently it is said that the courts
in modern times at least do not favor the creation or the enforce-
ment of forfeitures in the case of leases or other instruments.
If their enforcement is sought, particularly in a court of equity>
the effect and operation of the covenant by which it is claimed a
forfeiture has been created will be strictly limited. For forfei-
tures are not favored in equity.-* Thus where a lessor by his ac-
quiescence in his tenant's delay in paying the rent has induced
his tenant to believe that a strict perfonnance of his covenant to
pay rent at the times specified in the elase will not be required of
him, equity will not permit the landlord to enforce a forfeiture,
where under the circumstances it would be inequitable, and full
compensation can be made to the landlord for the consequences
of the tenants default ^^ in paying rent. As a rule, which is sup-
ported by many authorities and is based upon sound principles
of justice, where there has been a breach by a tenant of a covenant

the right." Palmer v. Ford. 70 Gale v. Oil Run Petroleum Co., 6

111. 369, on page 377. W. Va. 200; Hukill v. Myers, 36

28Randol V. Scott, 110 Cal. 590, W. Va. 639, 647. 15 S. E. Rep. 151.

42 Pac Rep. 976, 977; Wheeler v. "We are now in a court of equity.

Earle, 5 Cush. (Mass.) 31, 34, 51 Courts of equity were originally

Am. Dec. 41; Grummett v. Gin- founded, among other purposes, to

grass. 77 Mich. 369, 43 N. W. Rep. relieve against the hardness of

999; Miller v. Havens, 51 Mich. courts of common law, and notably

482' 485, 16 N. W. Rep. 865; Liv- to relieve against forfeiture, even

ingston 'v. Tompkins, 4 Johns. Ch. when it clearly exists; and very

(N Y.) 415; Burnes v. McCubbin, safely it can be said that equity

3 Kan. 221;' Phillips v. Tucker, 3 looks with disfavor upon forfeit-

Ind 132, 135; Marshall v. Vicks- ures, and will not be quick, active

burg 82 U S. 146, 149, 21 Law. ed. or alert to see or declare or en-

121- ' Doe v. Stevens, 3 B. & Ad. force them." Hukill v. Myers, 36

299- Doe v. Hogg. 4 Dowl. & R. W. Va. 639, 645, 15 S. E. Rep. 151.

226- Doe v. Godwin, 4 M. & S. Hence a court of equity will seize

265- Doe v. Bond. 5 B. & C. 855; hold of circumstances such as the

Horton v. New York Central & H. laches of the person endeavoring

Riv. R. R. Co.. 12 Abb. New Cases to enforce the forfeiture upon

(N.Y.) 30; Duffield v. Hue. 129 v.^hich to excuse the forfeiture.

Pa. St. 94. 18 Atl. Rep. 566; White 2;. Thropp v. Field, 26 N. J. Eq.

v. McMurray, 2 Brewst. (Pa.) 485; 82.

666 LAW OP LANDLORD AND TENANT.

to pay rent equity will relieve against the forfeiture incurred
thereby upon payment of the rent which is in arrears and inter-
est, even though failure to pay the rent has been wilful upon the
part of the lessee. Equity will grant relief against a forfeiture
for the non-payment of the rent on the date it was due for com-
pensation can readily be made to the lessor and be placed in statu
quo.^° The payment of interest by the lessee to the lessor on the
rent from the date it was payable will be a sufficient compensation
to the lessor for his damages as he will thereby be placed in the
same position as if he has received his rent promptly. In equity
general stipulations for re-entry by the landlord for the non-pay-
ment of the rent are considered as merely intended to secure the
payment of the rent and not as designed to cause a forfeiture if
the tenant acts in good faith and promptly pays the rent though
after it is due when it is demanded or pays it at least before the
landlord shall have suffered a loss or unreasonable inconvenience
from the delay or default of the tenant.^^ It does not seem t»
be material in the case of a default in the performance of a
covenant to pay rent that the default was intentional. If a col-
lateral covenant has been broken as, for example, to repair or to
insure the premises ; and the breach was the result of accident or
mistake on the part of the lessee, or of fraud or surprise on the
part of the lessor, and if the lessee can by a money compensation
or otherwise put the lessor in the same position he would have
been in ease the breach had not occurred the forfeiture will be
relieved against.'^ But in all cases of the breach of covenants
other than a covenant to pay rent no relief against forfeiture

»o Abrams v. Watson, 59 Ala. 22 ; Bowser v. Colby, 1 Hare, 109,

524; Wilson v. Jones, 1 Bush (Ky.) 11 L. J. Ch. 132, 5 Jur. 1106.

173; Atkins v. Chilson, 11 Met. si Wilson v. Jones, 1 Bush (Ky.)

(Mass.) 112, 119; Mactier v. Os- 173, 174.

born, 146 Mass. 399, 402, 15 N. E. 32 Mactier v. Osborn, 146 Mass.

Rep. 641, 644, 4 Am. St. Rep. 323; 399, 402, 15 N. E. Rep. 641; At-

Thropp V. Field, 26 N. J. Eq. 82, kins v. Chilson, 11 Met. (Mass.>

84; Baxter v. Lansing, 7 Paige Ch. 112; Carpenter v. Wilson, 100 Md.

(N. Y.) 350; Gamer v. Hannah, 6 13, 59 Atl. Rep. 186; Livingston

Duer (N. Y.) 262; Planters' Ins. v. Tompkins, 4 Johns. Ch. (N. Y.)

Co. V. Diggs, 8 Baxt. (Tenn.) 563; 415, 431; Henry v. Tupper, 29 Vt.

Hagan v. Buck, 44 Vt. 285, 291, 8 358; Sanders v. Pope, 12 Ves. 282;

Am. Rep. 368; Donnelly v. Eastes, Hukill v. Myers, 36 W. Va. 639,

94 Wis. 390, 397, 69 N. W. Rep. 647, 15 S. E. Rep. 651. Relief from

157; Descarlett v. Dennett, 9 Mod. a forfeiture may be granted where

COVENANTS OP THE LEASE. 667

will usually be granted by a court of equity unless the covenan-
tor can sbow that the breacli by him was occasioned by his ex-
cusable accident or mistake or by surprise or by the fraud of the
covenantee.'^ A court of equity in determining whether to grant
a lessee relief against a forfeiture of the lease will carefully ex-
amine into all the circumstances of the case. If the court is
asked to relieve a lessee against a forfeiture for non-payment of
rent, the court will examine all the circumstances in order to as-
certain if other covenants have been broken by the lessee. If
other covenants have been broken and a forfeiture created there-
by for which under the circumstances no relief can be had in
equity, the court will not grant any relief as regards the breach
of the covenant or condition to pay rent as this relief would be
of no avail to the tenant in view of the other broken covenants.**
So where the court is asked to relieve against a forfeiture of a
lease to mine, because of the failure of the lessee to pay royalties,
it will consider all the other particulars if any in which the
lease has been broken by the lessee as, for example, his failure to
furnish periodical statements of the quantity of ore mined, and
his acts of waste, together with the fact that he is insolvent and
therefore unable to pay the rent and the fact that the property
is likely to be injured and destroyed by dissatisfied and dis-

the forfeiture arises from the non- accident or by mistalie of the in-
payment of taxes by a tenant. surance' brokers, they (the insur-
Webb V. King, 21 App. D. C. 141. anoe policies) were renewed In a
S3 Peachey v. Somerset, 1 Stra. form which does not fairly meet
447; Hill v. Barclay, 18 Ves. 56, the requirements of the covenant.
63; Bracebridge v. Bulkley, 2 This was not wilful or voluntary
Price, 200; Elliott v. Turner, 13 on the part of the tenant. It was
Sim. 477, 483, 485; Eaton v. Lyon, not an accidental forgetfulness to

3 Ves. 690, 692, 693; Gregory v. renew the policies. The property
Wilson, 9 Hare, 683; Descarlet v. had been all the time insured. It
Dennett, 9 Mod. 22; Rolfe v. Har- was an occurrence not anticipated
ris, 2 Price, 206, n.; Reynolds v. by the tenant and not known to
Pitts, 19 Ves. 134; White v. War- her until the demandant claimed
ner, 2 Mer. 459; Green v. Bridges, to enforce a forfeiture. The les-

4 Sim. 96; Thompson v. Guyon, 5 sors have not been injured by the
Sim. 65; Nokes v. Gibbon, 3 Drew. accident and can now be put in
681. In a case where there was statu quo." Mactier v. Osborn, 146
alleged a breach by a tenant of Mass. 399, 402, 15 N. E. Rep. 641.
his covenant to keep the prem- 34 Nokes v. Gibbon, 3 Drew. 693;
ises Insured, the court said: "By Bowser v. Colby, 1 Hare, 109.

668" LAW OP LANDLORD AND TENANT.

affected workmen. ^^ The court will consider the conduct of the
lessee who asks to be relieved from a forfeiture of a covenant
other than that to pay rent. The conduct of the lessee must be
considered in order to ascertain if his breach of the covenant
was intentional or was inadvertent. And where relief is de-
manded from a forfeiture which is based upon the failure of the
lessee for a few months to prosecute the work of fitting up the
premises for occupation, the court will take into consideration
the fact that during the period of the delay the lessee was prepar-
ing to have the work done, that he was in fact ready to proceed
at the date the lessors entered, that the lessor had neither made a
demand for greater haste, nor any complaint to the lessee of the
delay; also that the delay was not wilful or in bad faith and
that no injury had resulted to the lessor by reason of the delay. ^^
A statute creating a forfeiture in the case of its violation by a
lessee will be strictly construed in his favor. If a statute pro-
vides that a lessee of public lands from the state for a particu-
lar use and purpose shall forfeit his lease if he shall divert the
land demised to him from such use and purpose does not require
a forfeiture by the use of a portion of the land for another pur-

35 Sunday Lake Mining Co. v. common law provided in tliis class

Wakefield, 72 Wis. 204, 39 N. W. of contracts that it was the duty

Rep. 136. of the court to see that no injus-

30 Lundin v. Schoeffel, 167 Mass. tice was done. It is reasonable,
465, 45 N. E. Rep. 933. "As a it is natural, that when a contract
proposition pervading this doc- puts it into the power of one man
trine of the right of re-entry by to say that under certain contin-
the forfeiture of a lease of land, gencies, of which he is to be the
it is to be observed that the power judge, he shall enter upon the
to be exercised is a very strong house or home or property of an-
power, and it is one which is ex- other, and eject him instantly,
ercised without the judgment of a and take possession, it is reason-
court of justice or of any body able, it is proper, that the con-
else but the party who exercises tract and the acts which justify
it. The party determines for him- such a course of conduct shall be
self whether he has the right of construed rigidly against the ex-
reentry, without any resort to a ercise of the right. A court of
court of justice. This is always equity, when necessary, when this
a harsh power. It has always been power has been exercised, will
considered that it was necessary come in and afford relief." By
to restrain it to the most technical Miller, J., in Kansas City Elevator
limits of the terms and conditions Co. v. Union Pac. Ry. Co., 17 Fed.
upon which the right is to be ex- Rep. 200, on page 201.
ercised. Hence, it is that the old

COVENANTS OF TIIB LEASE.

669

pose which in no way interferes with hut rather is auxiliary to
the use of the premises for the purpose for which it was leased."
Equity will not relieve against the forgetfulness of the lessee in
executing an underlease without the consent in writing of his
landlord which was required under' the terms of the lease, even
though no damage has been sustained by the landlord and the
under tenant was a respectable and responsible person. Forget-
fulness on the part of the lessee or his agent by reason of which
the procuring of the necessary consent is entirely omitted is
neither accident nor mistake which will give the court of equity
jurisdiction.^^ Though a court of equity is generally unwilling
to enforce a forfeiture, it may do so- under certain circumstances
where the enforcement of a forfeiture asked as an affirmative
relief is more consistent with right and justice, than to refuse it.
A forfeiture will usually be enforced unless there are some ele-
ments of accident or mistake appearing in the proofs, and the
party against whom it is to be enforced can be compelled to pay

37 Equity will grant relief
against a forfeiture for the non-
payment of the rent, even after
a judgment against the tenant in
forcible detainer (Abrams v. Wat-
son, 59 Ala. 524), and after the
landlord has entered and received
an attornment from the sub-ten-
ants (Wilson V. Jones, 1 Bush
(Ky.) 173), and also where the
property is situated in another
state so that the court cannot re-
store possession to the lessor.
Sunday Lake Mining Co. v. Wake-
field, 72 Wis. 204, 39 N. W. Rep.
136.

38 Barrow v. Isaacs, 60 L. J. Q.
B. 179, (1891) 1 Q. B. 417, 64 L. T.
686, 39 W. R. 338, 55 J. P. 517.
"Nevertheless, it is obvious that
there has been a breach of the
covenant. Upon the breach the
right of re-entry vested. At law,
therefore, the plaintiff has the
right to reenter; that is to say
he has the right to get rid of a
long lease of great advantage to

the lessees. I do not know what
his motives are for insisting on
his right, but he does insist.
There must, of course, be some
motive for his doing so. He has,
however, the legal right, and the
question, therefore, is whether
where it is clear that there is no
real ground for objecting to the
subdemlse, and that the omission
to ask the lessor's consent has
had no effect at all and done no
harm at all, equity will relieve
against a forfeiture incurred,
though subletting without such
consent. Under which of the
grounds that courts of equity have
recognized can the relief that is
sought in this case be brought?
Equity will relieve against fraud,
against accident and against mis-
take; and I think you must add
that equity will only relieve where
there can be complete compensa-
tion, or where there has been
nothing for which compensation
can be required. In the present

670

LAW OP LANDLORD AND TENANT.

compensation.^" The lessee may have relief from the conse-
quences of a forfeiture caused by the negligence of his agent as
well as by his own negligence.*"

case, there has clearly not been,
any fraud, nor can it be said that
there has been any accident. Can
this case be brought under the
head of mistalie? After looking
through all the cases I cannot find
any definition of what mistake is.
Is merei forgetfulness mistake?
Using the word mistake in its or-
dinary meaning in the English
language I think, that forgetful-
ness is not mistake. Forgetful-
ness is not the thinking that one
thing is in existence when in fact
something else is. It is the ab-
sence of thought as to the thing —
the mental state in which the par-

ticular thing has passed out of the
mind altogether. On that ground
I should come to the conclusion
very unwillingly myself, that this
case was not one of those in which
a court of equity could grant re-
lief." Barrow v. Isaacs, 60 L. J.
Q. B. 179, (1891) 1 Q. B. 417, 64
L. T. 686, 39 W. R. 338, 56 J. P.
517.

39 Brewster v. Lanyon Zinc Co.,
72 C. C. App. 213, 140 Fed. Rep.
801.

*o Barrow v. Isaacs, 60 L. J. Q.
B. 179, (1891) 1 Q. B. 417, 64 L. T.
686, 39 W. R. 338, 55 J. P. 517.

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